G.R. No. 1491 March 5, 1904

THE UNITED STATES, complainant-appellee,

vs.

LORENZO ARCEO ET AL., defendants-appellants.

JOHNSON, J.:

FACTS: The defendants were charged with entering the house of one Alejo Tiongson armed with deadly weapons, against the will of the said Alejo

Tiongson.

The accused, one of whom was armed with a gun and the other two each with bolo, entered the house of the said Alejo Tiongson without first

obtaining the permission of any person.

ISSUE: Was the trial court justified in finding that the accused were guilty of the crime of entering the residence of another against his will and with

violence or intimidation? We think that it was.

HELD: The inviolability of the home is one of the most fundamental of all the individual rights declared and recognized in the political codes of

civilized nations. No one can enter into the house of another without the consent of its owners or occupants.

The privacy of the home — the place of abode, the place where a man with his family may dwell in peace and enjoy the companionship of his

wife and children unmolested by anyone, even the king, except in rare cases — has always been regarded by civilized nations as one of the most

sacred personal rights to which men are entitled. Both the common and the civil law guaranteed to man the right of absolute protection to the

privacy of his home. The king was powerful; he was clothed with majesty; his will was the law, but, with few exceptions, the humblest citizen or

subject might shut the door of his humble cottage in the face of the monarch and defend his intrusion into that privacy which was regarded as

sacred as any of the kingly prerogatives. The poorest and most humble citizen or subject may, in his cottage, no matter how frail or humble it is, bid

defiance to all the powers of the state; the wind, the storm and the sunshine alike may enter through its weather-beaten parts, but the king may

not enter against its owner's will; none of his forces dare to cross the threshold of even the humblest tenement without its owner's consent.

"A man's house is his castle," has become a maxim among the civilized peoples of the earth. His protection therein has become a matter of

constitutional protection in England, America, and Spain, as well as in other countries.

However, under the police power of the state the authorities may compel entrance to dwelling houses against the will of the owners for sanitary

purposes. The government has this right upon grounds of public policy. It has a right to protect the health and lives of all of its people. A man

can not insist upon the privacy of his home when a question of the health and life of himself, his family, and that of the community is involved.

This private right must be subject to the public welfare.

G.R. No. 153087 August 7, 2003

BERNARD R. NALA, Petitioner,

vs.

JUDGE JESUS M. BARROSO, JR., Presiding Judge, Regional Trial Court, Branch 10, 10th Judicial Region, Malaybalay City, Respondent.

YNARES-SANTIAGO, J.:

In determining the existence of probable cause for the issuance of a search warrant, the examining magistrate must make probing and

exhaustive, not merely routine or pro forma examination of the applicant and the witnesses.1 Probable cause must be shown by the best

evidence that could be obtained under the circumstances. The introduction of such evidence is necessary especially where the issue is the

existence of a negative ingredient of the offense charged, e.g., the absence of a license required by law.2

FACTS: PO3 Alcoser applied for the issuance of a warrant to search the person and residence of petitioner Nala, who was referred to in the

application as "Rumolo8 Nala alias Long"9 of "Purok 4, Poblacion, Kitaotao, Bukidnon."10

The application was filed in connection with petitioner’s alleged illegal possession of two firearms in violation of the law on Illegal Possession of

Firearms.

On the same day, after examining Alcoser and his witness, respondent Judge Barroso, issued Search and Seizure Warrant against "Romulo Nala

alias Lolong Nala who is said to be residing at Purok 4, Poblacion, Kitaotao, Bukidnon."

Alcoser and other police officers searched petitioner’s house and allegedly seized the some articles

Petitioner filed an Omnibus Motion13

seeking to – (1) quash Search and Seizure Warrant; (2) declare inadmissible for any purpose the items

allegedly seized under the said warrant; and (3) direct the release of the air rifle seized by the police officers.

As to the validity of the search warrant, respondent found that probable cause was duly established from the deposition and examination of

witness Nalagon and the testimony of PO3 Alcoser who personally conducted a surveillance to confirm the information given by Nalagon.

Respondent judge also found that petitioner was sufficiently identified in the warrant although his first name was erroneously stated therein as

"Romulo" and not "Bernard"

ISSUES:

(1) Was petitioner sufficiently described in the search and seizure warrant?

(2) Was there probable cause for the issuance of a search and seizure warrant against petitioner?

(3) Whether or not the firearms and explosive allegedly found in petitioner’s residence are admissible in evidence against him even

though said firearms were not listed in the search and seizure warrant.

HELD: Article III, Section 2 of the Constitution guarantees every individual the right to personal liberty and security of homes against unreasonable

searches and seizures, viz:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature

and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined

personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly

describing the place to be searched and the persons or things to be seized.

The purpose of the constitutional provision against unlawful searches and seizures is to prevent violations of private security in person and

property, and unlawful invasion of the sanctity of the home, by officers of the law acting under legislative or judicial sanction, and to give remedy

against such usurpations when attempted.18

Corollarily, Rule 126, Sections 4 and 5 of the 2000 Rules on Criminal Procedure provide for the requisites for the issuance of a search warrant, to

wit:

SEC. 4. Requisites for issuing search warrant. – A search warrant shall not issue except upon probable cause in connection with one specific

offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may

produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.

SEC. 5. Examination of complainant; record. – The judge must, before issuing the warrant, personally examine in the form of searching questions

and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to

the record their sworn statements, together with the affidavits submitted.

More simply stated, the requisites of a valid search warrant are:

(1) probable cause is present;

(2) such presence is determined personally by the judge;

(3) the complainant and the witnesses he or she may produce are personally examined by the judge, in writing and under oath or

affirmation;

(4) the applicant and the witnesses testify on facts personally known to them; and

(5) the warrant specifically describes the person and place to be searched and the things to be seized.19

**On the first issue, the failure to correctly state in the search and seizure warrant the first name of petitioner, which is "Bernard" and not

"Romulo" or "Rumolo", does not invalidate the warrant because the additional description "alias Lolong Nala who is said to be residing at Purok

4, Poblacion, Kitaotao, Bukidnon" sufficiently enabled the police officers to locate and identify the petitioner. What is prohibited is a warrant

against an unnamed party, and not one which, as in the instant case, contains a descriptio personae that will enable the officer to identify the

accused without difficulty.20

** The "probable cause" for a valid search warrant has been defined as such facts and circumstances which would lead a reasonably discreet and

prudent man to believe that an offense has been committed, and that objects sought in connection with the offense are in the place sought to

be searched. This probable cause must be shown to be within the personal knowledge of the complainant or the witnesses he may produce and

not based on mere hearsay.21

In determining its existence, the examining magistrate must make a probing and exhaustive, not merely routine or pro forma examination of the

applicant and the witnesses.22 Probable cause must be shown by the best evidence that could be obtained under the circumstances. On the part of

the applicant and witnesses, the introduction of such evidence is necessary especially where the issue is the existence of a negative ingredient of

the offense charged, e.g., the absence of a license required by law.23

On the other hand, the judge must not simply rehash the contents of the affidavits but must make his own extensive inquiry on the existence of

such license, as well as on whether the applicant and the witnesses have personal knowledge thereof.

In the case at bar, the search and seizure warrant was issued in connection with the offense of illegal possession of firearms, the elements of

which are – (1) the existence of the subject firearm; and (2) the fact that the accused who owned or possessed it does not have the license or

permit to possess the same.26

Nowhere in the affidavit and testimony of witness Ruel Nalagon nor in PO3 Macrino L. Alcoser’s application for the issuance of a search warrant

was it mentioned that petitioner had no license to possess a firearm.

While Alcoser testified before the respondent judge that the firearms in the possession of petitioner are not licensed, this does not qualify as

"personal knowledge" but only "personal belief" because neither he nor Nalagon verified, much more secured, a certification from the

appropriate government agency that petitioner was not licensed to possess a firearm.

This could have been the best evidence obtainable to prove that petitioner had no license to possess firearms and ammunitions, but the police

officers failed to present the same.

Regrettably, even the examination conducted by the respondent judge on Nalagon and Alcoser fell short of the required probing and exhaustive

inquiry for the determination of the existence of probable cause.

It did not even occur to the examining judge to clarify how did the police officers conduct an "on the spot" surveillance.

At any rate, regardless of the nature of the surveillance and verification of the information carried out by the police officers, the fact remains

that both the applicant, PO3 Macrino L. Alcoser, and his witness Ruel Nalagon did not have personal knowledge of petitioner’s lack of license to

possess firearms, ammunitions and explosive; and did not adduce the evidence required to prove the existence of probable cause that

petitioner had no license to possess a firearm. Hence, the search and seizure warrant issued on the basis of the evidence presented is void.

** Can petitioner be charged with illegal possession of firearms and explosive allegedly seized from his house?

The settled rule is that where entry into the premises to be searched was gained by virtue of a void search warrant, prohibited articles seized in

the course of the search are inadmissible against the accused.

Prohibited articles may be seized but only as long as the search is valid.

Conformably, the articles allegedly seized in the house of petitioner cannot be used as evidence against him because access therein was gained

by the police officer using a void search and seizure warrant. It is as if they entered petitioner’s house without a warrant, making their entry

therein illegal, and the items seized, inadmissible.

So also, admissibility of the items seized cannot be justified under the plain view doctrine.

It is true that, as an exception, the police officer may seize without warrant illegally possessed firearm, or any contraband for that matter,

inadvertently found in plain view. However, said officer must have a prior right to be in the position to have that view of the objects to be

seized.

The "plain view" doctrine applies 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 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 intrusion, he came inadvertently across a piece of evidence incriminating the accused. The object must be open to eye and

hand and its discovery inadvertent

In this case, the firearms and explosive were found at the rear portion of petitioner’s house36 but the records do not show how exactly were

these items discovered. Clearly, therefore, the plain view doctrine finds no application here not only because the police officers had no

justification to search the house of petitioner (their search warrant being void for lack of probable cause), but also because said officers failed to

discharge the burden of proving that subject articles were inadvertently found in petitioner’s house.

All the items seized in petitioner’s house, being "fruits of the poisonous tree", are "inadmissible for any purpose in any proceeding."

G.R. No. 140946 September 13, 2004

MICROSOFT CORPORATION and LOTUS DEVELOPMENT CORPORATION, petitioners,

vs.

MAXICORP, INC., respondent.

CARPIO, J.:

FACTS: ("NBI Agent Samiano") filed several applications for search warrants against Maxicorp for alleged violation of Section 29 of PD 49 and

Article 189 of the RPC.

After conducting a preliminary examination of the applicant and his witnesses, Judge William issued Search Warrants against Maxicorp.

Armed with the search warrants, NBI agents conducted a search of Maxicorp’s premises and seized property fitting the description stated in the

search warrants.

Maxicorp filed a motion to quash the search warrants alleging that there was no probable cause for their issuance and that the warrants are in

the form of "general warrants."

ISSUES

1. WHETHER THERE WAS PROBABLE CAUSE TO ISSUE THE SEARCH WARRANTS;

2. WHETHER THE SEARCH WARRANTS ARE "GENERAL WARRANTS."

The Ruling of the Court

On Whether there was Probable Cause to Issue the Search Warrants

Petitioners argue that the Court of Appeals point out that the Court of Appeals disregarded the overwhelming evidence that the RTC considered

in determining the existence of probable cause.

Maxicorp maintains that the entire preliminary examination that the RTC conducted was defective.

The Court of Appeals based its reversal on two factual findings of the RTC. First, the fact that the sales receipt presented by NBI Agent Samiano as

proof that he bought counterfeit goods from Maxicorp was in the name of a certain "Joel Diaz." Second, the fact that petitioners’ other witness,

John Benedict Sacriz, admitted that he did not buy counterfeit goods from Maxicorp.

We rule that the Court of Appeals erred in reversing the RTC’s findings.

Probable cause means "such reasons, supported by facts and circumstances as will warrant a cautious man in the belief that his action and the

means taken in prosecuting it are legally just and proper."19 Thus, probable cause for a search warrant requires such facts and circumstances that

would lead a reasonably prudent man to believe that an offense has been committed and the objects sought in connection with that offense are

in the place to be searched.20

The judge determining probable cause must do so only after personally examining under oath the complainant and his witnesses.

The oath required must refer to "the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose

thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence

of probable cause."21 The applicant must have personal knowledge of the circumstances. "Reliable information" is insufficient.22 Mere affidavits

are not enough, and the judge must depose in writing the complainant and his witnesses.23

The Court of Appeals’ reversal of the findings of the RTC centers on the fact that the two witnesses for petitioners during the preliminary

examination failed to prove conclusively that they bought counterfeit software from Maxicorp. The Court of Appeals ruled that this amounted to

a failure to prove the existence of a connection between the offense charged and the place searched.

The offense charged against Maxicorp is copyright infringement under Section 29 of PD 49 and unfair competition under Article 189 of the RPC.

To support these charges, petitioners presented the testimonies of NBI Agent Samiano, computer technician Pante, and Sacriz, a civilian. The

offenses that petitioners charged Maxicorp contemplate several overt acts. The sale of counterfeit products is but one of these acts. Both NBI

Agent Samiano and Sacriz related to the RTC how they personally saw Maxicorp commit acts of infringement and unfair competition.

RTC subjected the testimonies of the witnesses to the requisite examination. NBI Agent Samiano testified that he saw Maxicorp display and offer

for sale counterfeit software in its premises. Both NBI Agent Samiano and Sacriz were clear and insistent that the counterfeit software were not

only displayed and sold within Maxicorp’s premises, they were also produced, packaged and in some cases, installed there.

The testimonies of these two witnesses, coupled with the object and documentary evidence they presented, are sufficient to establish the

existence of probable cause. From what they have witnessed, there is reason to believe that Maxicorp engaged in copyright infringement and

unfair competition to the prejudice of petitioners.

The determination of probable cause does not call for the application of rules and standards of proof that a judgment of conviction requires after

trial on the merits. As implied by the words themselves, "probable cause" is concerned with probability, not absolute or even moral certainty.

The prosecution need not present at this stage proof beyond reasonable doubt. The standards of judgment are those of a reasonably prudent

man,24 not the exacting calibrations of a judge after a full-blown trial.

Probable cause is determined in the light of conditions obtaining in a given situation.26 Thus, it was improper for the Court of Appeals to reverse

the RTC’s findings simply because the sales receipt evidencing NBI Agent Samiano’s purchase of counterfeit goods is not in his name.

For purposes of determining probable cause, the sales receipt is not the only proof that the sale of petitioners’ software occurred.

This also applies to the Court of Appeals’ ruling on Sacriz’s testimony. The fact that Sacriz did not actually purchase counterfeit software from

Maxicorp does not eliminate the existence of probable cause. Copyright infringement and unfair competition are not limited to the act of selling

counterfeit goods. They cover a whole range of acts, from copying, assembling, packaging to marketing, including the mere offering for sale of the

counterfeit goods.

Probable cause is dependent largely on the opinion and findings of the judge who conducted the examination and who had the opportunity to

question the applicant and his witnesses.31

On Whether the Search Warrants are in the Nature of General Warrants

A search warrant must state particularly the place to be searched and the objects to be seized. The evident purpose for this requirement is to

limit the articles to be seized only to those particularly described in the search warrant.

This is a protection against potential abuse. It is necessary to leave the officers of the law with no discretion regarding what articles they shall

seize, to the end that no unreasonable searches and seizures be committed.33

In addition, under Section 4, Rule 126 of the Rules of Criminal Procedure, a search warrant shall issue "in connection with one specific offense."

The articles described must bear a direct relation to the offense for which the warrant is issued.34 Thus, this rule requires that the warrant must

state that the articles subject of the search and seizure are used or intended for use in the commission of a specific offense.

Maxicorp argues that the warrants issued against it are too broad in scope and lack the specificity required with respect to the objects to be

seized.

It is only required that a search warrant be specific as far as the circumstances will ordinarily allow.38 The description of the property to be

seized need not be technically accurate or precise. The nature of the description should vary according to whether the identity of the property or

its character is a matter of concern.39

Measured against this standard we find that paragraph (e) is not a general warrant. The articles to be seized were not only sufficiently identified

physically, they were also specifically identified by stating their relation to the offense charged. Paragraph (e) specifically refers to those articles

used or intended for use in the illegal and unauthorized copying of petitioners’ software. This language meets the test of specificity.40

However, we find paragraph (c) of the search warrants lacking in particularity. Paragraph (c) states:

c) Sundry items such as labels, boxes, prints, packages, wrappers, receptacles, advertisements and other paraphernalia bearing the

copyrights and/or trademarks owned by MICROSOFT CORPORATION;

The scope of this description is all-embracing since it covers property used for personal or other purposes not related to copyright infringement

or unfair competition. Moreover, the description covers property that Maxicorp may have bought legitimately from Microsoft or its licensed

distributors. Paragraph (c) simply calls for the seizure of all items bearing the Microsoft logo, whether legitimately possessed or not. Neither does it

limit the seizure to products used in copyright infringement or unfair competition.

A partially defective warrant remains valid as to the items specifically described in the warrant.44 A search warrant is severable, the items not

sufficiently described may be cut off without destroying the whole warrant.45

The exclusionary rule found in Section 3(2) of Article III of the

Constitution renders inadmissible in any proceeding all evidence obtained through unreasonable searches and seizure. Thus, all items seized under

paragraph (c) of the search warrants, not falling under paragraphs a, b, d, e or f, should be returned to Maxicorp.

G.R. No. L-64261 December 26, 1984

JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS MEDIA SERVICES, INC., petitioners,

vs.

THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF, PHILIPPINE CONSTABULARY, THE CHIEF LEGAL OFFICER, PRESIDENTIAL

SECURITY COMMAND, THE JUDGE ADVOCATE GENERAL, ET AL., respondents.

ESCOLIN, J.:

FACTS: Two warrants were issued against petitioners for the search on the premises of “Metropolitan Mail” and “We Forum” newspapers and

the seizure of items alleged to have been used in subversive activities. Petitioners prayed that a writ of preliminary mandatory and prohibitory

injunction be issued for the return of the seized articles, and that respondents be enjoined from using the articles thus seized as evidence against

petitioner.

Petitioners questioned the warrants for the lack of probable cause and that the two warrants issued indicated only one and the same address. In

addition, the items seized subject to the warrant were real properties

ISSUE: Whether or not the two warrants were valid to justify seizure of the items.

HELD:

A mere typographical error in a search warrant does not render the same invalid

The seizure of articles belonging to other persons not named in the warrant does not invalidate the search warrant or the search conducted –

Section 2 of Rule 126 (now Section 3 of Rule 126) of the Rules of Court provides that a search warrant may be issued for the search and seizure of

(a) property subject of the offense; (b) property stolen or embezzled and other proceeds or fruits of the offense; and (c) property used or intended

to be used as the means of committing an offense. It does not require that the property to be seized should be owned by the person against

whom the search warrant is directed. It may or may not be owned by him. In fact, under Section 2(b), one of the properties that may be seized is

stolen property. Ownership, therefore, is of no consequence, and it is sufficient that the person against whom the warrant is directed has

control or possession of the property sought to be seized.

Mere unsubstantiated allegations or baseless conclusions of law do not constitute probable cause for issuance of a search warrant – Probable

cause for a search is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense

has been committed and that the objects sought in connection with the offense are in the place sought to be searched.

And when the search warrant applied for is directed against a newspaper publisher or editor in connection with the publication of subversive

materials, as in the case at bar, the application and/or its supporting affidavits must contain a specification, stating with particularity the alleged

subversive material he has published or is intending to publish. Mere generalization will not suffice.

Thus, the broad statement in Col. Abadilla’s application that petitioner “is in possession or has in his control printing equipment and other

paraphernalia, news publications and other documents which were used and are all continuously being used as a means of committing the

offense of subversion punishable under Presidential Decree 885, as amended …” is a mere conclusion of law and does not satisfy the

requirements of probable cause.

Probable cause for issuance of a search warrant must be based on personal knowledge of the applicant or his witness – Equally insufficient as

basis for the determination of probable cause is the statement contained in the joint affidavit of Alejandro M. Gutierrez and Pedro U. Tango,

In mandating that “no warrant shall issue except upon probable cause to be determined by the judge, … after examination under oath or

affirmation of the complainant and the witnesses he may produce; the Constitution requires no less than personal knowledge by the complainant

or his witnesses of the facts upon which the issuance of a search warrant may be justified. In Alvarez v. Court of First Instance (64 Phil. 33), this

Court ruled that “the oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because

the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant,

of the existence of probable cause.”

General warrants are unconstitutional – Another factor which makes the search warrants under consideration constitutionally objectionable is

that they are in the nature of general warrants. The description of the articles sought to be seized under the search warrants in question cannot be

characterized differently.

G.R. No. 82585 November 14, 1988

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

vs.

THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila, Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the

Department of Justice, LUIS C. VICTOR, THE CITY FISCAL OF MANILA and PRESIDENT CORAZON C. AQUINO, respondents.

PER CURIAM:

ISSUE: whether or not the constitutional rights of Beltran were violated when respondent RTC judge issued a warrant for his arrest without

personally examining the complainant and the witnesses, if any, to determine probable cause

Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches

and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue

except upon probable cause to be determined personally by the judge after examination nder oath or affirmation of the

complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things

to be seized.

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable

cause.

In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the

complainant and his witnesses.

Following established doctrine and procedure, he shall:

(1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and,

on the basis thereof, issue a warrant of arrest; or

(2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting

affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.

It has not been shown that respondent judge has deviated from the prescribed procedure.

G.R. No. 121234 August 23, 1995

HUBERT J. P. WEBB, petitioner,

vs.

HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the

Presiding Judge of the Regional Trial Court of Parañaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUÑO,

LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G.

TOLENTINO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 274, respondents, LAURO VIZCONDE, intervenor.

FACTS: (NBI) filed with theDepartment of Justice a letter-complaint charging the crime of Rape and Homicide of Carmela N.Vizconde, her mother

Estrellita Nicolas-Vizconde, and her sister Anne Marie Jennifer in their home

Petitioners criticize the procedure followed by the DOJ Panel when it did notexamine witnesses to clarify the alleged inconsistencies

Petitioners contend: (1) respondent Judges de Leon and Tolentino gravely abused their discretion when they failed to conduct a preliminary

examination before issuing warrants of arrest against them

Petitioners postulate that it was impossible to conduct a "searching examination of witnesses and evaluation of the documents" on the part of

said judges.

In search cases, two conclusions must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being

connected with criminal activity, and that the items will be found in the place to be searched. It is not also necessary that a particular person be

implicated.

By comparison, in arrest cases there must be probable cause that a crime has been committed and that the person to be arrested committed it,

which of course can exist without any showing that evidence of the crime will be found at premises under that person's control."

With respect to warrants of arrest, section 6 of Rule 112 simply provides that "upon filing of an information, the Regional Trial Court may issue a

warrant for the arrest of the accused." In contrast, the procedure to be followed in issuing search warrants is more defined. Thus, Sections 3, 4

and 5 of Rule 126 provide:

xxx xxx xxx

Sec. 3. Requisites for issuing search warrant. — A search warrant shall not issue but upon probable cause in connection with

one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant

and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized.

Sec. 4. Examination of complainant; record. — The judge must, before issuing the warrant, personally examine in the form of

searching questions and answers, in writing and under oath the complainant and any witnesses he may produce on facts

personally known to them and attach to the record their sworn statements together with any affidavits submitted.

Sec. 5. Issuance and form of search warrant. — If the judge is thereupon satisfied of the facts upon which the application is

based, or that there is probable cause to believe that they exist, he must issue the warrant, which must be substantially in the

form prescribed by these Rules.

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the

existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest,

the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and

procedure, he shall: (1) personally evaluate the report and the documents submitted by the fiscal regarding the existence of

probable cause and, on the basis thereof, issue a warrant; or (2) if on the basis thereof he finds no probable cause, he may

disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a

conclusions as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and

investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.

Clearly then, the Constitution, the Rules of Court, and our case law 34 repudiate the submission of petitioners that respondent judges

should have conducted "searching examination of witnesses" before issuing warrants of arrest against them. They also reject

petitioners' contention that a judge must first issue an order of arrest before issuing a warrant of arrest. There is no law or rule

requiring the issuance of an Order of Arrest prior to a warrant of arrest.

In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn statements of Alfaro and the sworn

statements of witnesses as well as the counter-affidavits of the petitioners.

Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not the certainty of guilt of

an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally

review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence.

G.R. No. 118821 February 18, 2000

MAYOR BAI UNGGIE D. ABDULA and ODIN ABDULA, petitioners,

vs.

HON. JAPAL M. GUIANI, in his capacity as Presiding Judge, of Branch 14 of the Regional Trial Court of Cotabato City, respondent.

GONZAGA-REYES, J.:

FACTS: A complaint for murder was filed against herein petitioners and six (6) other persons1 in connection with the death of a certain Abdul

Dimalen,

Acting on this complaint, the Provincial Prosecutor of Maguindanao dismissed the charges of murder against herein petitioners and five other

respondents on a finding that there was no prima facie case for murder against them.

Respondent Judge ordered that the case be returned to the Provincial Prosecutor for further investigation.

Upon the return of the records of the case, it was assigned to 2nd Assistant Prosecutor Enok T. Dimaraw for further investigation.

After evaluation of the evidence, Prosecutor Dimaraw, found a prima facie case for murder against herein petitioners He thus recommended the

filing of charges against herein petitioners.

The respondent judge issued a warrant12 for the arrest of petitioners.

Petitioners opposed, arguung that the warrant of arrest should be recalled considering that the respondent judge "did not personally examine the

evidence nor did he call the complainant and his witnesses in the face of their incredible accounts."

Issue: WON the Warrant of Arrest should be set aside and declared void

HELD:

After a careful analysis of these arguments, we find merit in the contention of petitioners.

The pertinent provision of the Constitution reads:

Sec. 2 [Article III]. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and

seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon

probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the

witnesses he may produce and particularly describing the place to be searched and the persons or things to be seized. (Emphasis

supplied.)

In the case at bench, respondent admits that he issued the questioned warrant as there was "no reason for (him) to doubt the validity of the

certification made by the Assistant Prosecutor that a preliminary investigation was conducted and that probable cause was found to exist as

against those charged in the information filed."

The statement is an admission that respondent relied solely and completely on the certification made by the fiscal that probable cause exists

and issued the challenged warrant of arrest on the sole basis of the prosecutor's findings and recommendations. He adopted the judgment of

the prosecutor regarding the existence of probable cause as his own.

Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties, which in turn gives his report the

presumption of accuracy, nothing less than the fundamental law of the land commands the judge to personally determine probable cause in the

issuance of warrants of arrest. A judge fails in this constitutionally mandated duty if he relies merely on the certification or report of the

investigating officer.

Clearly, respondent judge, by merely stating that he had no reason to doubt the validity of the certification made by the investigating prosecutor

has abdicated his duty under the Constitution to determine on his own the issue of probable cause before issuing a warrant of arrest.

Consequently, the warrant of arrest should be declared null and void.

G.R. No. 140657 October 25, 2004

PEOPLE OF THE PHILIPPINES, petitioner,

vs.

CESAR O. DELOS REYES, respondent.

FACTS: SPO3 Benjamin Nuguid applied for a search warrant against Cesar Reyes alias "Cesar Itlog.

In support of his application, Nuguid submitted his affidavit and that of Alexis Tan, a housewife. Nuguid and Tan also testified in support of the

application. After the court conducted examination of the said witnesses, it issued on even date Search Warrant No. 98-905 authorizing the search

of the house allegedly under the possession and custody of one Cesar Reyes alias "Cesar Itlog," at No. 2600 Oroquieta Street, Sta. Cruz, Manila,

The policemen conducted a search not only of the house at No. 2600 Oroquieta Street, Sta Cruz, Manila, which turned out to be the house of

respondent Cesar delos Reyes, but also of the car and motorcycle owned by the latter

ISSUE: WON the search warrant was validly issued.

HELD: we resolve to deny the petition.

A search warrant must (a) be based on probable cause; (b) contain a particular description of the place to be searched; and (c) must describe the

items or property to be seized.13 Probable cause comprehends such facts and circumstances as will induce a cautious man to rely upon and act in

pursuance thereof.14

Probable cause must first focus on a specific location. If the applicant or official is unable to state with sufficient precision the place to be searched

and why he reasonably believes that contraband or evidence of criminal activity will be found therein, it is highly doubtful that he possesses

probable cause for a warrant.15

In issuing a search warrant, the Judge must strictly comply with the requirements of the Constitution and the statutory provisions.16

A search warrant shall not issue except upon probable cause to be determined personally by the Judge after examination under oath or affirmation

of the complainant and the witnesses he may produce.17 Before issuing a search warrant, the Judge must personally examine, in the form of

searching questions and answers, in writing and under oath, the complainant and his witnesses he may produce, on facts personally known to

them.18

Although there is no hard-and-fast rule as to how a Judge may conduct his examination, it is axiomatic that the said examination must be probing

and exhaustive and not merely routinary, general, peripheral or perfunctory.20 He must make his own inquiry on the intent and factual and legal

justifications for a search warrant.

The questions should not merely be repetitious of the averments not stated in the affidavits/deposition of the applicant and the witnesses.21 If the

Judge fails to determine probable cause by personally examining the applicant and his witnesses in the form of searching questions before issuing a

search warrant, it constitutes grave abuse of discretion.22

It bears stressing that the determination of the existence of probable cause must be made by a detached and neutral Judge.27 If he resorts to

propounding leading questions to the applicant and his witnesses to determine probable cause, the Judge may be perceived as being partial, or

even in cahoots with the officers engaged in the often competitive enterprise of ferreting out crime.28

A search warrant is not thereby rendered invalid; nor is a finding of probable cause proscribed merely because the Judge propounded leading

questions on the applicant and the witnesses he produces. The entirety of the questions propounded by the court and the answers thereto must

be considered and calibrated by the Judge.

The questions propounded on Nuguid by Judge Lorenzo were not searching and probing, but merely superficial and perfunctory. The records

show that in his application for a search warrant, Nuguid described the place to be searched as the house located at "No. 2600 Oroquieta Street,

Sta. Cruz, Manila," under the name of Cesar Reyes alias "Cesar Itlog."

The Judge also failed to ask Nuguid the circumstances upon which he and the other police officers came to know how Tan was able to purchase

shabu from the respondent.

Thus, in issuing a search warrant, the Judge must strictly comply with the requirements of the Constitution and the statutory provisions.

A liberal construction should be given in favor of the individual to prevent stealthy encroachment upon, or gradual depreciation of the

rights secured by the Constitution. No presumption of regularity is to be invoked in aid of the process when an officer undertakes to

justify it.31

G.R. No. 94902-0 April 21, 1999

BENJAMIN V. KHO and ELIZABETH ALINDOGAN, petitioners,

vs.

HON. ROBERTO L. MAKALINTAL and NATIONAL BUREAU OF INVESTIGATION, respondents.

FACTS: NBI Agents Max B. Salvador and Eduardo T. Arugay, applied for the issuance of search warrants by the respondent Judge against Benjamin

V. Kho, now petitioner, in his two houses. The search warrants were applied for after teams of NBI agents had conducted a personal surveillance

and investigation in the two houses referred to on the basis of confidential, information they received that the said places were being used as

storage centers for unlicensed firearms and "chop-chop" vehicles. Respondent NBI sought for the issuance of search warrants in anticipation of

criminal cases to be instituted against petitioner Kho.

On the same day, the respondent Judge conducted the necessary examination of the applicants and their witnesses, after which he issued

Search Warrants.

Petitioners claim that subject search warrants are general warrants proscribed by the Constitution.

HELD: The Court believes, and so holds, that the said warrants comply with Constitutional and statutory requirements. The law does not require

that the things to be seized must be described in precise and minute detail as to leave no room for doubt on the part of the searching

authorities. Otherwise, it would be virtually impossible for the applicants to obtain a warrant as they would not know exactly what kind of things

they are looking for. Since the element of time is very crucial in criminal cases, the effort and time spent in researching on the details to be

embodied in the warrant would render the purpose of the search nugatory.

In the case under consideration, the NBI agents could not have been in a position to know before hand the exact caliber or make of the firearms

to be seized. Although the surveillance they conducted did disclose the presence of unlicensed firearms within the premises to be searched, they

could not have known the particular type of weapons involved before seeing such weapons at close range, which was of course impossible at

the time of the filing of the applications for subject search warrants.

Verily, the failure to specify detailed descriptions in the warrants did not render the same general. Retired Justice Ricardo Francisco's book on

Criminal Procedure has this useful insight:

A description of the property to be seized need not be technically accurate nor necessarily precise; and its nature will

necessarily vary according to whether the identity of the property, or its character, is the matter of concern. Further, the

description is required to be specific only so for as the circumstances will ordinarily allow. . . .

But where, by the nature of the goods to be seized, their description must be rather general, it is not required that a technical description be

given, for this would mean that no warrant could issue."

It is indeed understandable that the agents of respondent Bureau have no way of knowing whether the guns they intend to seize are a Smith

and Wesson or a Beretta. The surveillance conducted could not give the NBI agents a close view of the weapons being transported or brought to

the premises to be searched. Thus, they could not be expected to know the detailed particulars of the objects to be seized. Consequently, the

list submitted in the applications for subject search warrants should be adjudged in substantial compliance with the requirements of law.

G.R. No. 89103 July 14, 1995

LEON TAMBASEN, petitioner,

vs.

PEOPLE OF THE PHILIPPINES, 2ND ASSISTANT PROVINCIAL PROSECUTOR GLORIA LASTIMOSA MARCOS and HON. CICERO U. QUERUBIN in his

capacity as Presiding Judge of the Regional Trial Court of Negros Occidental, Branch 44, Bacolod City, respondents.

QUIASON, J.:

Facts: In August 1988, P/Sgt. Natuel applied for issuance of search warrant alleging that he received information that Petitioner had in his

possession at his house “M-16 Armalite rifles, hand grenades, .45 Cal. pistols, dynamite sticks and subversive documents”, which were “used or

intended to be used” for illegal purposes. The application was granted.

In September, a police team, searched the house of petitioner and seized “2 envelopes containing P14000, handset with antennae, transceiver

with antennae, regulator supply, academy notebook and assorted papers and handset battery pack”.

Petitioner moved that the search and seizure be declared illegal and that the seized articles be returned to him

Issue: Whether or Not the seizure of the articles which were not mentioned in the search warrant was legal.

Held: Section 2 Article III of the 1987 Constitution requires that a search warrant should particularly describe the things to be seized. The police

acts beyond the parameters of their authority if they seize articles not described in the search warrants. The evident purpose and intent of the

requirement is to limit the things to be seized, to leave the officers of the law with no discretion; that unreasonable search and seizure may not

be made and that abuses may not be committed.

G.R. No. 124461 September 25, 1998

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.

THE HONORABLE JUDGE ESTRELLA T. ESTRADA, PRESIDING JUDGE, RTC, BRANCH 83, QUEZON CITY; and AIDEN LANUZA, respondents.

MARTINEZ, J.:

FACTS:

Atty. Cabanlas, Chief of the Legal, Information and Compliance Division (LICD) of BFAD filed an application for the issuance of a search warrant

against Aiden Lanuza (private respondent) of 516 San Jose de la Montana Street, Mabolo, Cebu City for violation of Article 40(k) of RA 7934 (The

Consumer Act of the Philippines).

However, the application ended with a statement that the warrant is to search the premises of another person at a different address (Belen

Cabanero at New Frontier Village, Talisay, Cebu - who happened to be the subject on whom another search was applied for by the same

applicant)

Respondent Judge issued search warrant which was served the next day.

The present petition stated that, during the search, the team discovered that said address (516 xx) was actually a 5,000-meter compound

containing at least 15 structures. The policemen proceeded to search the residence of private respondent Lanuza at Lot 41 of said address.

Failure to find any drug products prompted the policemen to proceed to search a nearby warehouse at Lot 38 which yielded 52 cartons of

assorted drug products.

Private respondent Lanuza filed a motion to quash the search warrant on the ground that the search warrant is illegal and null and void.

Respondent judge granted Lanyza’s motion to quash the search warrant and denied petitioner’s motion for reconsideration.

Hence, the present petition.

ISSUE: WON respondent judge erred in granting Lanuza’s motion to quash Search Warrant 958.

The requirements for the issuance of a search warrant are inscribed in Section 2, Article III of the 1987 Constitution, to wit:

Sec. 2. THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS AGAINST UNREASONABLE

SEARCHES, SEIZURES OF WHATEVER NATURE AND FOR ANY PURPOSE SHALL BE INVIOLABLE, AND NO SEARCH WARRANT OR

WARRANT OF ARREST SHALL ISSUE EXCEPT UPON PROBABLE CAUSE TO BE DETERMINED PERSONALLY BY THE JUDGE AFTER

EXAMINATION UNDER OATH OF 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. (Emphasis supplied)

In quashing the subject search warrant, it is the finding of the respondent Judge that the application for its issuance suffered from a "grave" defect,

"which escaped (her) attention," considering that it was applied to search the premises of one Belen Cabanero at New Frontier Village, Talisay,

Cebu, but was issued to search the residence of herein private respondent Aiden Lanuza at 516 San Jose de la Montana St., Cebu City. 20

There are, however, two (2) serious grounds to quash the search warrant.

Firstly, we cannot fault the respondent Judge for nullifying the search warrant as she was not convinced that there was probable cause for its

issuance due to the failure of the applicant to present documentary proof indicating that private respondent Aiden Lanuza had no license to sell

drugs.

We agree with the respondent Judge that applicant Atty. Lorna Frances Cabanlas should have submitted documentary proof that private

respondent Aiden Lanuza had no such license. Although no explanation was offered by respondent Judge to support her posture, we hold that to

establish the existence of probable cause sufficient to justify the issuance of a search warrant, the applicant must show "facts and circumstances

which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection

with the offense are in the place sought to be searched." 24

In the case at bar, the best evidence procurable under the circumstances to prove that private respondent Aiden Lanuza had no license to sell

drugs is the certification to that effect from the Department of Health.

Secondly, the place sought to be searched had not been described with sufficient particularity in the questioned search warrant, considering

that private respondent Aiden Lanuza's residence is actually located at Lot No. 41, 516 San Jose de la Montana St., Mabolo, Cebu City, while the

drugs sought to be seized were found in a warehouse at Lot No. 38 within the same compound. The said warehouse is owned by a different

person. Again, the respondent Judge is correct on this point.

This Court has held that the applicant should particularly describe the place to be searched and the person or things to be seized, wherever and

whenever it is feasible. 28 In the present case, it must be noted that the application for search warrant was accompanied by a sketch 29 of the

compound at 516 San Jose de la Montana St., Mabolo, Cebu City. The sketch indicated the 2-storey residential house of private respondent with a

large "X" enclosed in a square. Within the same compound are residences of other people, workshops, offices, factories and warehouse. With this

sketch as the guide, it could have been very easy to describe the residential house of private respondent with sufficient particularity so as to

segregate it from the other buildings or structures inside the same compound.

But the search warrant merely indicated the address of the compound which is 516 San Jose de la Montana St., Mabolo, Cebu City. This

description of the place to be searched is too general and does not pinpoint the specific house of private respondent. Thus, the inadequacy of

the description of the residence of private respondent sought to be searched has characterized the questioned search warrant as a general

warrant, which is violative of the constitutional requirement.

The respondent Judge acted correctly in granting the motion to quash the search warrant.

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

HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL BECK, petitioners,

vs.

HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE LUKBAN, in his capacity as Acting Director, National Bureau of

Investigation; SPECIAL PROSECUTORS PEDRO D. CENZON, EFREN I. PLANA and MANUEL VILLAREAL, JR. and ASST. FISCAL MANASES G. REYES;

JUDGE AMADO ROAN, Municipal Court of Manila; JUDGE ROMAN CANSINO, Municipal Court of Manila; JUDGE HERMOGENES CALUAG, Court of

First Instance of Rizal-Quezon City Branch, and JUDGE DAMIAN JIMENEZ, Municipal Court of Quezon City, respondents.

CONCEPCION, C.J.:

Facts: Respondents issued, on different dates, 42 search warrants against petitioners personally, and/or corporations for which they are officers

directing peace officers to search the persons of petitioners and premises of their offices, warehouses and/or residences to search for personal

properties “books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals, portfolios, credit journals, typewriters,

and other documents showing all business transactions including disbursement receipts, balance sheets and profit and loss statements and

Bobbins(cigarettes)” as the subject of the offense for violations of Central Bank Act, Tariff and Customs Laws, Internal Revenue Code, and

Revised Penal Code.

Upon effecting the search in the offices of the aforementioned corporations and on the respective residences of the petitioners, there seized

documents, papers, money and other records. Petitioners then were subjected to deportation proceedings and were constrained to question the

legality of the searches and seizures as well as the admissibility of those seized as evidence against them.

The documents, papers, and things seized under the alleged authority of the warrants in question may be split into two (2) major groups, namely:

(a) those found and seized in the offices of the aforementioned corporations, and (b) those found and seized in the residences of petitioners

herein.

As regards the first group, we hold that petitioners herein have no cause of action to assail the legality of the contested warrants and of the

seizures made in pursuance thereof, for the simple reason that said corporations have their respective personalities, separate and distinct from

the personality of herein petitioners, regardless of the amount of shares of stock or of the interest of each of them in said corporations, and

whatever the offices they hold therein may be.8

ISSUE: (1) whether the search warrants in question, and the searches and seizures made under the authority thereof, are valid or not, an

(2) if the answer to the preceding question is in the negative, whether said documents, papers and things may be used in evidence against

petitioners herein.

HELD:

Two points must be stressed in connection with this constitutional mandate, namely: (1) that no warrant shall issue but upon probable cause, to be

determined by the judge in the manner set forth in said provision; and (2) that the warrant shall particularly describe the things to be seized.

None of these requirements has been complied with in the contested warrants. Indeed, the same were issued upon applications stating that the

natural and juridical person therein named had committed a "violation of Central Ban Laws, Tariff and Customs Laws, Internal Revenue (Code) and

Revised Penal Code." In other words, no specific offense had been alleged in said applications.

As a consequence, it was impossible for the judges who issued the warrants to have found the existence of probable cause, for the same

presupposes the introduction of competent proof that the party against whom it is sought has performed particular acts, or committed specific

omissions, violating a given provision of our criminal laws.

To uphold the validity of the warrants in question would be to wipe out completely one of the most fundamental rights guaranteed in our

Constitution, for it would place the sanctity of the domicile and the privacy of communication and correspondence at the mercy of the whims

caprice or passion of peace officers. This is precisely the evil sought to be remedied by the constitutional provision above quoted — to outlaw the

so-called general warrants. It is not difficult to imagine what would happen, in times of keen political strife, when the party in power feels that the

minority is likely to wrest it, even though by legal means.

The grave violation of the Constitution made in the application for the contested search warrants was compounded by the description therein

made of the effects to be searched for and seized, to wit:

Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers, portfolios, credit journals, typewriters, and

other documents and/or papers showing all business transactions including disbursement receipts, balance sheets and related profit and

loss statements.

Thus, the warrants authorized the search for and seizure of records pertaining to all business transactions of petitioners herein, regardless of

whether the transactions were legal or illegal. The warrants sanctioned the seizure of all records of the petitioners and the aforementioned

corporations, whatever their nature, thus openly contravening the explicit command of our Bill of Rights — that the things to be seized be

particularly described — as well as tending to defeat its major objective: the elimination of general warrants.

We adopt the exclusionary rule, realizing that this is the only practical means of enforcing the constitutional injunction against unreasonable

searches and seizures.

Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the spirit of the constitutional injunction against unreasonable

searches and seizures.

To be sure, if the applicant for a search warrant has competent evidence to establish probable cause of the commission of a given crime by the

party against whom the warrant is intended, then there is no reason why the applicant should not comply with the requirements of the

fundamental law. Upon the other hand, if he has no such competent evidence, then it is not possible for the Judge to find that there is probable

cause, and, hence, no justification for the issuance of the warrant. The only possible explanation (not justification) for its issuance is the necessity

of fishing evidence of the commission of a crime. But, then, this fishing expedition is indicative of the absence of evidence to establish a probable

cause.

We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby, abandoned; that the warrants for the search of three

(3) residences of herein petitioners are null and void; that the searches and seizures therein made are illegal

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.:

FACTS:

A shooting incident occurred which left at least five persons dead and two others wounded.

What in fact transpired is still unclear.

A complaint was filed and testimonies by witnesses were heard. Thereafter, respondent Judge approved the complaint and issued the warrant of

arrest against fourteen (14) petitioners as named bythe witnesses and fifty (50) John Does.

A “ex parte” motion for reconsideration was filed seeking the recall of the warrant of arrest on the ground that the Judge’s initial investigation had

been hasty and manifestly haphazard. The Judge denied the motion

ISSUE: Whether or not thewarrant of arrest against fifty (50) John Does was valid

HELD:

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." 30 Clearly violative of the constitutional injunction that warrants of arrest should particularly describe the person or

persons to be seized, 31 the warrant must, as regards its unidentified subjects, be voided.

G.R. No. 117487 December 12, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

ARNEL ALICANDO y BRIONES, accused-appellant.

PUNO, J.:

FACTS: Appellant was charged with the crime of rape with homicide of Khazie Mae Penecilla, a minor, four years of age, choking her with his right

hand.

Appellant was arrested and interrogated by PO3 Danilo Tan

On the basis of his uncounselled verbal confession and follow up interrogations, the police came to know and recovered from appellant's house,

Khazie Mae's green slippers, a pair of gold earrings, a buri mat, a stained pillow and a stained T-shirt all of which were presented as evidence for

the prosecution. Appellant was convicted.

HELD: Some prosecution evidenc were inadmissible, yet, were considered by the trial court in convicting the appellant.

.

It is now familiar learning that the Constitution has stigmatized as inadmissible evidence uncounselled confession or admission. Section 12

paragraphs (1) and (3) of Article III of the Constitution provides:

xxx xxx xxx

Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to

remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the

services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of

counsel.

xxx xxx xxx

(3) Any confession or admission obtained in violation of this or the preceding section shall be inadmissible against him.

In the case at bar, PO3 Tan did not even have the simple sense to reduce the all important confession of the appellant in writing. Neither did he

present any writing showing that appellant waived his right to silence and to have competent and independent counsel despite the blatant

violation of appellant's constitutional right, the trial court allowed his uncounselled confession to flow into the records and illicitly used it in

sentencing him to death.

It is not only the uncounselled confession that is condemned as inadmissible, but also evidence derived therefrom. The pillow and the T-shirt with

the alleged bloodstains were evidence derived from the uncounselled confession illegally extracted by the police from the appellant.

It is also the burden of the prosecution to show that the evidence derived from confession is not tainted as "fruit of the poisonous tree." In the

case at bar, the records show that the prosecution utterly failed to discharge this burden. It matters not that in the course of the hearing, the

appellant failed to make a timely objection to the introduction of these constitutionally proscribed evidence. The lack of objection did not satisfy

the heavy burden of proof that rested on the prosecution.

G.R. No. 128587 March 16, 2007

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.

HON. PERFECTO A.S. LAGUIO, JR., in his capacity as Presiding Judge, Branch 18, RTC, Manila, and LAWRENCE WANG Y CHEN, Respondents.

D E C I S I O N

GARCIA, J.:

FACTS:

In an entrapment operation, Redentor Teck and Joseph Junio were arrested while they were about to hand over another bag of shabu.

The two informed the police operatives that they were working for Lawrence Wang.

They also disclosed that they knew of a scheduled delivery of shabu early the following morning of 17 May 1996, and that their employer (Wang)

could be found at the Maria Orosa Apartment in Malate, Manila.

The police operatives decided to look for Wang to shed light on the illegal drug activities of Redentor Teck and Joseph Junio. Police Inspector Cielito

Coronel and his men then proceeded to Maria Orosa Apartment and placed the same under surveillance.

Wang came out of the apartment and walked towards a parked BMW car. The police officers introduced themselves to him as police officers,

asked his name and, upon hearing that he was Lawrence Wang, immediately frisked him and asked him to open the back compartment of the

BMW car.7

When frisked, there was found inside the front right pocket of Wang and confiscated from him an unlicensed Pistol loaded with ammunitions. At

the same time, the other members of the operatives searched the BMW car and found inside it were the following items: (a) shabu; (b) cash in the

amount of P650,000.00; (c) one electronic and one mechanical scales; and (d) an unlicensed Daewoo 9mm Pistol with magazine. Then and there,

Wang resisted the warrantless arrest and search.8

ISSUE: whether there was lawful arrest, search and seizure by the police operatives in this case despite the absence of a warrant of arrest

and/or a search warrant.

HELD: There are actually two (2) acts involved in this case, namely, the warrantless arrest and the warrantless search. There is no question that

warrantless search may be conducted as an incident to a valid warrantless arrest. The law requires that there be first a lawful arrest before a

search can be made; the process cannot be reversed.26 However, if there are valid reasons to conduct lawful search and seizure which thereafter

shows that the accused is currently committing a crime, the accused may be lawfully arrested in flagrante delicto27 without need for a warrant of

arrest.

Under Section 5, Rule 113 of the New Rules of Court, a peace officer may arrest a person without a warrant:

(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 being transferred from one confinement to another.

None of these circumstances were present when the accused was arrested. The accused was merely walking from the Maria Orosa Apartment

and was about to enter the parked BMW car when the police officers arrested and frisked him and searched his car. The accused was not

committing any visible offense at the time of his arrest. Neither was there an indication that he was about to commit a crime or that he had just

committed an offense.

The arresting officers had no information and knowledge that the accused was carrying an unlicensed handgun, nor did they see him in possession

thereof immediately prior to his arrest.

Ditto on the 32 bags of shabu and the other unlicensed Daewoo Cal. 9mm Pistol with magazine that were found and seized from the car. The

contraband items in the car were not in plain view. The 32 bags of shabu were in the trunk compartment, and the Daewoo handgun was

underneath the driver’s seat of the car. The police officers had no information, or knowledge that the banned articles were inside the car, or that

the accused had placed them there. The police officers searched the car on mere suspicion that there was shabu therein.

Clearly therefore, the warrantless arrest of the accused and the search of his person and the car were without probable cause and could not be

licit. The arrest of the accused did not fall under any of the exception to the requirements of warrantless arrests, (Sec. 5, Rule 113, Rules of

Court) and is therefore, unlawful and derogatory of his constitutional right of liberty. x x x

For a warrantless arrest of an accused caught in flagrante delicto under paragraph (a) of Section 5 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.

The facts and circumstances surrounding the present case did not manifest any suspicious behavior on the part of private respondent Lawrence

Wang that would reasonably invite the attention of the police.

Neither may the warrantless arrest be justified under paragraph (b) of Section 5. What is clearly established from the testimonies of the

arresting officers is that Wang was arrested mainly on the information that he was the employer of Redentor Teck and Joseph Junio who were

previously arrested and charged for illegal transport of shabu.

Teck and Junio did not even categorically identify Wang to be their source of the shabu they were caught with in flagrante delicto. Upon the duo’s

declaration that there will be a delivery of shabu on the early morning of the following day, May 17, which is only a few hours thereafter, and that

Wang may be found in Maria Orosa Apartment along Maria Orosa Street, the arresting officers conducted "surveillance" operation in front of said

apartment, hoping to find a person which will match the description of one Lawrence Wang, the employer of Teck and Junio. These circumstances

do not sufficiently establish the existence of probable cause based on personal knowledge as required in paragraph (b) of Section 5.

And doubtless, the warrantless arrest does not fall under paragraph (c) of Section 5.

In the case at bar, 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.

The People’s contention that Wang waived his right against unreasonable search and seizure has no factual basis. While we agree in principle

that consent will validate an otherwise illegal search, however, based on the evidence on record, Wang resisted his arrest and the search on his

person and belongings.32 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.33

G.R. No. 170180 November 23, 2007

ARSENIO VERGARA VALDEZ, Petitioner,

vs.

PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

TINGA, J.:

The sacred right against an arrest, search or seizure without valid warrant is not only ancient. It is also zealously safeguarded. The Constitution

guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.1 Any

evidence obtained in violation of said right shall be inadmissible for any purpose in any proceeding. Indeed, while the power to search and seize

may at times be necessary to the public welfare, still it must be exercised and the law implemented without contravening the constitutional rights

of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government.2

FACTS: Petitioner Arsenio Valdez was found guilty by the lower courts for the violation of Section 11 of RA 9165 (illegal possession of dangerous

drugs) after dried marijuana leaves were found in his possession by three barangay tanods who made a search on him

The charges were denied by petitioner. After alighting from the bus, petitioner claimed that he went to the house of a friend to drink water and

then proceeded to walk to his brother’s house. As he was walking, prosecution witness Ordoño, a cousin of his brother’s wife, allegedly

approached him and asked where he was going. Petitioner replied that he was going to his brother’s house. Ordoño then purportedly requested

to see the contents of his bag and appellant acceded. After inspecting all the contents of his bag, petitioner testified that he was restrained by the

tanod and taken to the house of Mercado.

Petitioner maintained that at Mercado’s house, his bag was opened by the tanod and Mercado himself. They took out an item wrapped in

newspaper, which later turned out to be marijuana leaves.

Issue: Whether or not the the marijuana should be admitted in evidence.

HELD: To determine the admissibility of the seized drugs in evidence, it is indispensable to ascertain whether or not the search which yielded

the alleged contraband was lawful.

The search, conducted as it was without a warrant, is justified only if it were incidental to a lawful arrest.19 Evaluating the evidence on record in

its totality, as earlier intimated, the reasonable conclusion is that the arrest of petitioner without a warrant is not lawful as well.

resolution of this case on the general thrust of the prosecution evidence, the unlawfulness of petitioner’s arrest stands out just the same.

Section 5, Rule 113 of the Rules on Criminal Procedure provides the only occasions on which a person may be arrested without a warrant, to wit:

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 temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

x x x

By the tanods’ admission, petitioner was not committing an offense at the time he alighted from the bus, nor did he appear to be then

committing an offense.20 The tanod did not have probable cause either to justify petitioner’s warrantless arrest.

For the exception in Section 5(a), Rule 113 to operate, this Court has ruled that two (2) elements must be present: (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.21

Here, petitioner’s act of looking around after getting off the bus was but natural as he was finding his way to his destination. More importantly,

petitioner testified that he did not run away but in fact spoke with the barangay tanod when they approached him.

Indeed, the supposed acts of petitioner, even assuming that they appeared dubious, cannot be viewed as sufficient to incite suspicion of

criminal activity enough to validate his warrantless arrest.26

A waiver of an illegal warrantless arrest does not also mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest.

The following searches and seizures are deemed permissible by jurisprudence: (1) search of moving vehicles (2) seizure in plain view (3) customs

searches (4) waiver or consent searches (5) stop and frisk situations (Terry Search) and (6) search incidental to a lawful arrest.

The last includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest, for, while as a rule, an arrest is considered

legitimate if effected with a valid warrant of arrest, the Rules of Court recognize permissible warrantless arrests, to wit: (1) arrests in flagrante

delicto, (2) arrests effected in hot pursuit, and, (3) arrests of escaped prisoners.30

When petitioner was arrested without a warrant, he was neither caught in flagrante delicto committing a crime nor was the arrest effected in

hot pursuit. Verily, it cannot therefore be reasonably argued that the warrantless search conducted on petitioner was incidental to a lawful

arrest.

G.R. No. 81567 July 9, 1990

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA. MANOLITA O. UMIL,

and NICANOR P. DURAL, FELICITAS V. SESE, petitioners,

vs.

FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO, BRIG. GEN. ALEXANDER AGUIRRE, respondents.

PER CURIAM:

· The main issue in this case is WON the arrests were valid and WON the writ of Habeas Corpus may be granted to the petitioners

· The court here will decide each case based on the individual attending circumstances of all the accused

· These are 8 consolidated petitions for habeas corpus because the issues herein are similar

RESPONDENTS PETITIONERS

The persons sought to be produced were all legally arrested

and are detained by virtue of valid informations hence a writ

of HC cannot be used to set them free

Informations were null and void

· Detention is unlawful

· arrests made with no warrant

· no preliminary investigations conducted

COURT: arrests are LEGAL, circumstances do not warrant the release through habeas corpus

Warrantless arrests are recognized by law

· ROC- Rule 113 - 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;

xxxxx

· Evidence shows that persons arrested herein had all freshly committed or were actually committing an offense à arrests justified and that

they are detained by virtue of valid informations filed against them in court

UMIL v RAMOS

· They were arrested in connection with the killing of 2 capcom soldiers

· Dural was captured and identified 1 day after the incident because he needed medical care

· FEB 6, 1988 – petition for habeas corpus was filed with the court on behalf of Umil, Dural and Villanueva

·

· Dural was not arrested DURING the shooting nor was he arrested JUST AFTER à arrested a DAY AFTER = seemingly unjustified

o BUT court said the Dural was arrested for being a member of the NPA an outlawed subversive organization

o Subversion is a continuing offense = arrest without warrant is justified

· Furthermore evidence shows that the case against Dural was tried in court wherein they were found GUILTY = now serving sentence = HC

no longer available

RULING: The arrests were legal. Regarding the subversion cases, the arrests were legal since subversion is a form of a continuing crime – together

with rebellion, conspiracy or proposal to commit rebellion/subversion, and crimes committed in furtherance thereof or in connection therewith.

On the inciting to sedition case, the arrest was legal since an information was filed prior to his arrest. Lastly, the arrests were not fishing

expeditions but a result of an in-depth surveillance of NPA safe houses pinpointed by none other than members of the NPA.

The right to preliminary investigation should be exercised by the offender as soon as possible. Otherwise, it would be considered as impliedly

waived and the filing of information can proceed. This sort of irregularity is not sufficient to set aside a valid judgment upon a sufficient complaint

and after a trial free from error.

DISSENT: (Sarmiento, J.) The “confidential information” was nothing but hearsay. The searches and arrests made were bereft of probable cause and

that the petitioners were not caught in flagrante delicto or in any overt act. Utmost, the authorities was lucky in their fishing expeditions.

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. KAGUI MALASUGUI, defendant-appellant. G.R. No. L-44335 July 30, 1936 DIAZ, J.:

Facts: On March 5, 1935, Tan Why, a Chinese merchant, a resident of Cotabato, a victim of robbery was found lying on the ground, with several wounds in the head, on a path leading to the barrio of Carcar, Cotabato. Shortly before the victim’s death he was able to mention the appellant’s first name, “Kagui”, when he was asked about assailant.

Appellant was later searched by the investigating police, without opposition or protest on his part, and it was discovered that he also had the victim’s pocketbook, containing P92 in bills, the victim’s identification card and a memorandum of amounts with some Chinese characters. In one of the pockets of his pants was found some change, making the total amount of money found in his possession P92.68. The said search was conducted after the appellant had voluntarily produced the bracelets Exhibit A and placed them on Lieutenant Jacaria's table, because, upon being asked if he had anything, he tremblingly answered in the negative.

The appellant testified at the trial that Lieutenant Jacaria and Sergeant Urangut had forcibly and through intimidation taken from him the bracelets the pocketbook and all the money which he and that, but for the printing thereon, the identification card found in the pocketbook then was blank and there was no memorandum of the kind, in Tan Why's handwriting, inside the pocketbook, thereby, insinuating that it was Lieutenant Jacaria who typed or caused to be typewritten on the card Tan Why's name and personal data and who placed the memorandum in the pocketbook.

Issue: WON the search and seizure conducted on the accused legal?

Article III, section 1(3), of the 1935 Constitution:The right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized," contains no prohibition of arrest, search, or seizure without a warrant, but only against "unreasonable" searches and seizures.

SC ruling: Yes. The SC held that When the search of the person detained or arrested and the seizure of the effects found in his possession are incidental to an arrest made in conformity with the law, they cannot be considered unreasonable, much less unlawful. To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many instances.

The record shows that before proceeding with the trial in the lower court, the appellant asked for the return of said

effects to him on the ground that they were unlawfully taken away from him. Leaving aside the foregoing considerations, his testimony cannot prevail against nor is it sufficient to counteract that of the government witnesses, Lieutenant Jacaria and Sergeant Urangut, who testified that when Lieutenant Jacaria asked him what other things he carried, after having voluntarily placed the two pairs of bracelets, Exhibit A, on the table, and Sergeant Urangut felt his body, he did not show the least opposition. It follows, therefore, that the lower court committed no error in accepting as evidence the items taken from the accused, not only because the appellant did not object to the taking thereof from him when searched, but also because the effects found in his possession of a person detained or arrested are perfectly admissible as evidence against him, if they constitute the corpus delicti or are pertinent or relevant thereto. It is certainly repugnant to maintain the opposite view because it would amount to authorizing the return to the accused of the means of conviction seized from him, notwithstanding their being eloquent proofs of crime, for him to conceal, destroy or otherwise dispose of, in order to assure his impunity.

PEOPLE OF THE PHILIPPINES vs. COMPACION

[G.R. No. 124442, July 20, 2001]

KAPUNAN, J:

FACTS: Acting on a confidential tip supplied by a police informant that accused-appellant was growing and cultivating marijuana plants, SPO1

Gilbert L. Linda and SPO2 Basilio Sarong of the 6th Narcotic Regional Field Unit of the Narcotics Command (NARCOM) of the Bacolod City

Detachment conducted a surveillance of the residence of accused-appellant who was then the barangay captain of barangay Bagonbon, San Carlos

City, Negros Occidental on July 9, 1995.

During the said surveillance, they saw two (2) tall plants in the backyard of the accused-appellant which they suspected to be marijuana plants.

Despite failing to obtain a warrant, the team proceeded to barangay Bagonbon and arrived at the residence of accused-appellant in the early

morning of July 13, 1995. SPO4 Villamor knocked at the gate and called out for the accused-appellant. What happened thereafter is subject to

conflicting accounts. The prosecution contends that the accused-appellant opened the gate and permitted them to come in. He was immediately

asked by SPO4 Villamor about the suspected marijuana plants and he admitted that he planted and cultivated the same for the use of his wife who

was suffering from migraine

The operatives then uprooted the suspected marijuana plants.

Accused-appellant’s version of what transpired is that around one-thirty in the early morning of July 13, 1995 while he and his family were sleeping,

he heard somebody knocking outside his house. He went down bringing with him a flashlight. After he opened the gate, four (4) persons who he

thought were members of the military, entered the premises then went inside the house. It was dark so he could not count the others who entered

the house as the same was lit only by a kerosene lamp. One of the four men told him to sit in the living room. Some of the men went upstairs while

the others went around the house. None of them asked for his permission to search his house and the premises.

ISSUE: Whether or not the search and seizure performed at the backyard of the accused was valid

HELD: NO. In the instant case, the search and seizure conducted by the composite team in the house of accused-appellant was not authorized by a

search warrant. It does not appear either that the situation falls under any of he exceptions. Consequently, accused-appellant's right against

unreasonable search and seizure was clearly violated.

It is extant from the records that accused-appellant did not consent to the warrantless search and seizure conducted. While the right to be secure

from unreasonable search and seizure may, like every right, be waived either expressly or impliedly, such waiver must constitute a valid waiver

made voluntarily, knowingly and intelligently. The act of the accused-appellant in allowing the members of the military to enter his premises and

his consequent silence during the unreasonable search and seizure could not be construed as voluntary submission or an implied acquiescence to

warrantless search and seizure especially so when members of the raiding team were intimidatingly numerous and heavily armed.

As a general rule, objects in the "plain view" of an officer who has the right to be in the position to have that view are subject to seizure without a

warrant. It is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across

an incriminating object. Thus, the following elements must be present before the doctrine may be applied: (a) a prior valid intention based on the

valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered

by the police who have the right to be where they are; (c) the evidence must be immediately apparent; and (d) "plain view" justified were seizure

of evidence without further search.

Here, there was no valid warrantless arrest. They forced their way into accusedappellant's premises without the latter's consent. It is undisputed

that the NARCOM agents conducted a surveillance of the residence of accused-appellant on July 9, 1995 on the suspicion that he was growing and

cultivating marijuana when they allegedly came in "plain view" of the marijuana plants. When the agents entered his premises on July 13, 1995,

their intention was to seize the evidence against him. In fact, they initially wanted to secure a search warrant but could not simply wait for one to

be issued. The NARCOM agents, therefore, did not come across the marijuana plants inadvertently when they conducted a surveillance and barged

into accused appellant's residence.

People vs. Johnson [GR 138881, 18 December 2000]

Second Division, Mendoza (J): 4 concur

Facts: Leila Reyes Johnson was, at the time of the incident, 58 years old, a widow, and a resident of Ocean Side, California, U.S.A. She is a former

Filipino citizen who was naturalized as an American on 16 June 1968 and had since been working as a registered nurse, taking care of geriatric

patients and those with Alzheimer’s disease, in convalescent homes in the United States. On 16 June 1998, she arrived in the Philippines to visit her

son’s family in Calamba, Laguna. She was due to fly back to the United States on July 26. On July 25, she checked in at the Philippine Village Hotel to

avoid the traffic on the way to the Ninoy Aquino International Airport (NAIA) and checked out at 5:30 p.m. the next day, 26 June 1998. At around

7:30 p.m. of that day, Olivia Ramirez was on duty as a lady frisker at Gate 16 of the NAIA departure area. Her duty was to frisk departing

passengers, employees, and crew and check for weapons, bombs, prohibited drugs, contraband goods, and explosives. When she frisked Johnson, a

departing passenger bound for the United States via Continental Airlines CS-912, she felt something hard on the latter’s abdominal area. Upon

inquiry, Mrs. Johnson explained she needed to wear two panty girdles as she had just undergone an operation as a result of an ectopic pregnancy.

Not satisfied with the explanation, Ramirez reported the matter to her superior, SPO4 Reynaldo Embile, saying “Sir, hindi po ako naniniwalang

panty lang po iyon.” She was directed to take Johnson to the nearest women’s room for inspection. Ramirez took Johnson to the rest room,

accompanied by SPO1 Rizalina Bernal. Embile stayed outside. Inside the women’s room, Johnson was asked again by Ramirez what the hard object

on her stomach was and Johnson gave the same answer she had previously given. Ramirez then asked her “to bring out the thing under her girdle.”

Johnson brought out three plastic packs, which Ramirez then turned over to Embile, outside the women’s room. The confiscated packs contained a

total of 580.2 grams of a substance which was fount by NBI Chemist George de Lara to be methamphetamine hydrochloride or “shabu.” Embile

took Johnson and the plastic packs to the 1st Regional Aviation and Security Office (1st RASO) at the arrival area of the NAIA, where Johnson’s

passport and ticket were taken and her luggage opened. Pictures were taken and her personal belongings were itemized. Johnson was charged for

the possession of 3 plastic bages of methamphetamine hydrochloride, a regulated drug, weighing a total of 580.2 grams; a violation of §16 of RA

6425 (Dangerous Drugs Act), as amended by RA 7659. On 14 May 1999, the Regional Trial Court, Branch 110, Pasay City, found Johnson guilty and

sentenced her to suffer the penalty of reclusion perpetua and to pay a fine of P500,000.00 and the costs of the suit. Johnson appealed.

Issue: Whether the extensive search made on Johnson at the airport violates her right against unreasonable search and seizure.

Held: The constitutional right of the accused was not violated as she was never placed under custodial investigation but was validly arrested

without warrant pursuant to the provisions of Section 5, Rule 113 of tie 1985 Rules of Criminal Procedure which provides that “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 person to be arrested has committed it; and xxx.”

The circumstances surrounding the arrest of the accused falls in either paragraph (a) or (b) of the Rule above cited, hence the allegation that she

has been subjected to custodial investigation is far from being accurate. The methamphetamine hydrochloride seized from her during the routine

frisk at the airport was acquired legitimately pursuant to airport security procedures. Persons may lose the protection of the search and seizure

clause by exposure of their persons or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation

society is prepared to recognize as reasonable. Such recognition is implicit in airport security procedures. With increased concern over airplane

hijacking and terrorism has come increased security at the nation’s airports. Passengers attempting to board an aircraft routinely pass through

metal detectors; their carry-on baggage as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the

presence of suspicious objects, physical searches are conducted to determine what the objects are. There is little question that such searches are

reasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacy expectations associated with

airline travel. Indeed, travelers are often notified through airport public address systems, signs, and notices in their airline tickets that they are

subject to search and, if any prohibited materials or substances are found, such would be subject to seizure. These announcements place

passengers on notice that ordinary constitutional protections against warrantless searches and seizures do not apply to routine airport procedures.

The packs of methamphetamine hydrochloride having thus been obtained through a valid warrantless search, they are admissible in evidence

against Johnson. Corollarily, her subsequent arrest, although likewise without warrant, was justified since it was effected upon the discovery and

recovery of “shabu” in her person in flagrante delicto.

G.R. No. 128222 June 17, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

CHUA HO SAN @ TSAY HO SAN, accused-appellant.

FACTS OF THE CASE:

In response to reports of rampant smuggling of firearms and other contraband, Chief of Police Jim Lagasca Cid of Bacnotan Police Station, La Union

began patrolling the Bacnotan coastline with his officers. While monitoring the coastal area of Barangay Bulala, he intercepted a radio call at

around 12:45 p.m. from Barangay Captain Juan Almoite of Barangay Tammocalao requesting for police assistance regarding an unfamiliar

speedboat the latter had spotted. According to Almoite, the vessel looked different from the boats ordinarily used by fisherfolk of the area and was

poised to dock at Tammocalao shores. Cid and six of his men led by SPO1 Reynoso Badua, proceeded immediately to Tammocalao beach and there

conferred with Almoite. Cid then observed that the speedboat ferried a lone male passenger, who was later identified as Chua Ho San. When the

speed boat landed, the male passenger alighted, carrying a multicolored strawbag, and walked towards the road. Upon seeing the police officers,

the man changed direction. Badua held Chua’s right arm to prevent him from fleeing. They then introduced themselves as police officers; however,

Chua did not understand what they’re saying. And by resorting of “sign language”, Cid motioned with his hands for the man to open his bag. The

man acceded to the request. The said bag was found to contain several transparent plastics containing yellowish crystalline substances, which was

later identified to be methamphetamine hydrochloride or shabu. Chua was then brought to Bacnotan Police Station, where he was provided with

an interpreter to inform him of his constitutional rights.

ISSUE: Whether or not the warrantless arrest, search and seizure conducted by the Police Officers constitute a valid exemption from the warrant

requirement.

RULING: The Court held in the negative.

The Court explains that the Constitution bars State intrusions to a person's body, personal effects or residence except if conducted by virtue of a

valid of a valid search warrant issued in accordance with the Rules. However, warrantless searches may be permitted in the following cases, to wit:

(1) search of moving vehicles,

(2) seizure in plain view,

(3) customs searches,

(4) waiver or consent searches,

(5) stop and frisk situations (Terry search), and

(6) search incidental to a lawful arrest.

It is required in cases of in flagrante delicto that the arresting officer must have personal knowledge of such facts or circumstances convincingly

indicative or constitutive of probable cause. Probable cause means a reasonable ground of suspicion supported by circumstances sufficiently strong

in themselves to warrant a cautious man's belief that the person accused is guilty of the offense with which he is charged. In the case at bar, there

are no facts on record reasonably suggestive or demonstrative of CHUA's participation in on going criminal enterprise that could have spurred

police officers from conducting the obtrusive search. CHUA was not identified as a drug courier by a police informer or agent. The fact that the

vessel that ferried him to shore bore no resemblance to the fishing boats of the area did not automatically mark him as in the process of

perpetrating an offense. With these, the Court held that there was no probable cause to justify a search incidental to a lawful arrest.

The Court likewise did not appreciate the contention of the Prosecution that there was a waiver or consented search. If CHUA could not

understand what was orally articulated to him, how could he understand the police's "sign language?" More importantly, it cannot logically be

inferred from his alleged cognizance of the "sign language" that he deliberately, intelligently, and consciously waived his right against such an

intrusive search.

Finally, being a forbidden fruit, the subject regulated substance was held to be inadmissible in evidence.

Hence, the accused was acquitted as the evidence was not sufficient to establish guilt beyond reasonable doubt.

G.R. No. L-27360 February 28, 1968

HON. RICARDO G. PAPA, as Chief of Police of Manila; HON. JUAN PONCE ENRILE, as Commissioner of Customs; PEDRO PACIS, as Collector of

Customs of the Port of Manila; and MARTIN ALAGAO, as Patrolman of the Manila Police Department, petitioners,

vs.

REMEDIOS MAGO and HILARION U. JARENCIO, as Presiding Judge of Branch 23, Court of First Instance of Manila, respondents.

Facts: Martin Alagao, head of the counter-intelligence unit of the Manila Police Department, acting upon a reliable information received on 3

November 1966 to the effect that a certain shipment of personal effects, allegedly misdeclared and undervalued, would be released the following

day from the customs zone of the port of Manila and loaded on two trucks, and upon orders of Ricardo Papa, Chief of Police of Manila and a duly

deputized agent of the Bureau of Customs, conducted surveillance at gate 1 of the customs zone. When the trucks left gate 1 at about 4:30 p.m. of

4 November 1966, elements of the counter-intelligence unit went after the trucks and intercepted them at the Agrifina Circle, Ermita, Manila. The

load of the two trucks, consisting of nine bales of goods, and the two trucks, were seized on instructions of the Chief of Police. Upon investigation,

a person claimed ownership of the goods and showed to the policemen a “Statement and Receipts of Duties Collected on Informal Entry No. 147-

5501″, issued by the Bureau of Customs in the name of a certain Bienvenido Naguit. Claiming to have been prejudiced by the seizure and detention

of the two trucks and their cargo, Remedios Mago and Valentin B. Lanopa filed with the Court of First Instance (CFI) of Manila a petition “for

mandamus with restraining order or preliminary injunction (Civil Case 67496), praying for the issuance of a restraining order, ex parte, enjoining

the police and customs authorities, or their agents, from opening the bales and examining the goods, and a writ of mandamus for the return of the

goods and the trucks, as well as a judgment for actual, moral and exemplary damages in their favor. On 10 November 1966, Judge Hilarion Jarencio

issued an order ex parte restraining Ricardo Papa (as Chief of Police of Manila) and Juan Ponce Enrile (as Commissioner of Customs) in Civil Case

67496. However, when the restraining order was received by Papa. et. al., some bales had already been opened by the examiners of the Bureau of

Customs in the presence of officials of the Manila Police Department, an assistant city fiscal and a representative of Remedios Mago. Under date of

15 November 1966, Mago filed an amended petition, including as party defendants Collector of Customs Pedro Pacis of the Port of Manila and Lt.

Martin Alagao of the Manila Police Department. At the hearing on 9 December 1966, the lower court, with the conformity of the parties, ordered

that an inventory of the goods be made by its clerk of court in the presence of the representatives of the claimant of the goods, the Bureau of

Customs, and the Anti- Smuggling Center of the Manila Police Department. On 23 December 1966, Mago filed an ex parte motion to release the

goods, alleging that since the inventory of the goods seized did not show any article of prohibited importation, the same should be released as per

agreement of the parties upon her posting of the appropriate bond that may be determined by the court. On 7 March 1967, the Judge issued an

order releasing the goods to Mago upon her filing of a bond in the amount of P40,000.00. On 13 March 1967, Papa, on his own behalf, filed a

motion for reconsideration of the order of the court releasing the goods under bond, upon the ground that the Manila Police Department had been

directed by the Collector of Customs of the Port of Manila to hold the goods pending termination of the seizure proceedings. Without waiting for

the court’s action on the motion for reconsideration, and alleging that they had no plain, speedy and adequate remedy in the ordinary course of

law, Papa, et. al. filed the action for prohibition and certiorari with preliminary injunction before the Supreme Court.

Held: The Chief of the Manila Police Department, Ricardo G. Papa, having been deputized in writing by the Commissioner of Customs, could, for the

purposes of the enforcement of the customs and tariff laws, effect searches, seizures, and arrests, and it was his duty to make seizure, among

others, of any cargo, articles or other movable property when the same may be subject to forfeiture or liable for any fine imposed under customs

and tariff laws. He could lawfully open and examine any box, trunk, envelope or other container wherever found when he had reasonable cause to

suspect the presence therein of dutiable articles introduced into the Philippines contrary to law; and likewise to stop, search and examine any

vehicle, beast or person reasonably suspected of holding or conveying such article as aforesaid. It cannot be doubted, therefore, that Papa, Chief of

Police of Manila, could lawfully effect the search and seizure of the goods in question. The Tariff and Customs Code authorizes him to demand

assistance of any police officer to effect said search and seizure, and the latter has the legal duty to render said assistance. This was what happened

precisely in the case of Lt. Martin Alagao who, with his unit, made the search and seizure of the two trucks loaded with the nine bales of goods in

question at the Agrifina Circle. He was given authority by the Chief of Police to make the interception of the cargo. Martin Alagao and his

companion policemen had authority to effect the seizure without any search warrant issued by a competent court. The Tariff and Customs Code

does not require said warrant herein. The Code authorizes persons having police authority under Section 2203 of the Tariff and Customs Code to

enter, pass through or search any land, inclosure, 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, without mentioning

the need of a search warrant in said cases. But in the search of a dwelling house, the Code provides that said “dwelling house may be entered and

searched only upon warrant issued by a judge or justice of the peace.” Except in the case of the search of a dwelling house, persons exercising

police authority under the customs law may effect search and seizure without a search warrant in the enforcement of customs laws. Herein, Martin

Alagao and his companion policemen did not have to make any search before they seized the two trucks and their cargo. But even if there was a

search, there is still authority to the effect that no search warrant would be needed under the circumstances obtaining herein. The guaranty of

freedom from unreasonable searches and seizures is 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. Having declared that the seizure by the members of the Manila Police Department of the goods in question was

in accordance with law and by that seizure the Bureau of Customs had acquired jurisdiction over the goods for the purposes of the enforcement of

the customs and tariff laws, to the exclusion of the Court of First Instance of Manila.

G.R. No. 146706. July 15, 2005

TOMAS SALVADOR, Petitioners,

vs.

THE PEOPLE OF THE PHILIPPINES, Respondents.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

At bar is the petition for review on certiorari1 filed by Tomas Salvador assailing the Decision2 dated August 9, 2000 and Resolution dated January 9,

2001 of the Court of Appeals in CA-G. R. CR No. 20186.

On the wee hours of June 4, 1994, Aurelio Mandin, Danilo Santos and petitioner Tomas Salvador, then aircraft mechanics employed by the

Philippine Air Lines (PAL) and assigned at the Ninoy Aquino International Airport (NAIA) and Manila Domestic Airport, were nabbed by intelligence

operatives of the Philippine Air Force (PAF) for possessing thirteen (13) packets containing assorted smuggled watches and jewelries valued at

more than half a million pesos.

Consequently, they were charged before the Regional Trial Court (RTC), Branch 117, Pasay City with violation of Section 3601 of the Tariff and

Customs Code, docketed as Criminal Case No. 94-5843.

.At the Lima Gate of the Domestic Airport, the team blocked and stopped the tow truck. Sgt. Teves then got off, identified himself and asked the

four (4) persons on board to alight. They were later identified as Tomas Salvador, petitioner, Aurelio Mandin, Danilo Santos and Napoleon Clamor,

the driver of the tow truck.

Sgt. Teves approached Aurelio Mandin. He noticed that Mandin’s uniform was partly open, showing a girdle. While Sgt. Teves was reaching for the

girdle, a package wrapped in brown packaging tape fell. Suspecting that the package contained smuggled items, Sgt. Teves yelled to his teammates,

"Positive!" Thereupon, the rest of the team surrounded petitioner and his two co-accused who surrendered without a fight. The team searched

their bodies and found that the three were wearing girdles beneath their uniforms, all containing packets wrapped in packaging tape. Mandin

yielded five (5) packets, while petitioner and Santos had four (4) each. The team confiscated the packets and brought all the accused to the

PAFSECOM Office.

Issue: (1) whether the seized items are admissible in evidence;\

On the first issue, petitioner contends that the warrantless search and seizure conducted by the PAF operatives is illegal. Citing People v. Burgos,9

he maintains that at the time he and his co-accused were stopped by the PAF law enforces, they were unaware that a crime was being committed.

Accordingly, the law enforcers were actually engaged in a fishing expedition in violation of his Constitutional right against unlawful search and

seizure. Thus, the seized items should not have been admitted in evidence against him.

The Office of the Solicitor General (OSG) counters that under the factual circumstances of the case at bar, there was sufficient probable cause for

the PAF surveillance team to stop and search petitioner and his companions. They boarded the parked Air Bus 300 PAL plane at the time when

there were no other PAL personnel working therein. They stayed inside the plane for sometime and surprisingly, came out with bulging waists.

They then stopped and looked around and made apparent signals. All these acts were sufficient to engender a reasonable suspicion that petitioner

and his colleagues were up to something illegal. Moreover, the search and seizure was conducted in connection with the enforcement of customs

law when the petitioner and his co-accused were riding a motor vehicle. In addition, the search was conducted at the vicinity of Lima Gate of the

Manila Domestic Airport which, like every gate in the airport perimeter, has a checkpoint. Finally, the petitioner and his companions agreed to the

search after one of them was caught with a suspicious-looking packet. Under these circumstances, the search and seizure is legal and the seized

items are admissible in evidence.

We agree with the OSG.

The above Constitutional provisions do not prohibit searches and seizures, but only such as are unreasonable. Our jurisprudence provides for

privileged areas where searches and seizures may lawfully be effected sans a search warrant. These recognized exceptions include: (1) search of

moving vehicles; (2) search in plain view; (3) customs searches; (4) waiver or consented searches; (5) stop-and-frisk situations; and (6) search

incidental to a lawful arrest.10

Here, it should be noted that during the incident in question, the special mission of the PAF operatives was to conduct a surveillance operation to

verify reports of drug trafficking and smuggling by certain PAL personnel in the vicinity of the airport. In other words, the search made by the PAF

team on petitioner and his co-accused was in the nature of a customs search. As such, the team properly effected the search and seizure without a

search warrant since it exercised police authority under the customs law.11

In Papa vs. Mago12 involving a customs search, we held that law enforcers who are tasked to effect the enforcement of the customs and tariff laws

are authorized to search and seize, without a search warrant, any article, cargo or other movable property when there is reasonable cause to

suspect that the said items have been introduced into the Philippines in violation of the tariff and customs law. They may likewise conduct a

warrantless search of any vehicle or person suspected of holding or conveying the said articles, as in the case at bar.

In short, Mago clearly recognizes the power of the State to foil any fraudulent schemes resorted to by importers who evade payment of customs

duties. The Government’s policy to combat the serious malady of smuggling cannot be reduced to futility and impotence on the ground that

dutiable articles on which the duty has not been paid are entitled to the same Constitutional protection as an individual’s private papers and

effects. Here, we see no reason not to apply this State policy which we have continued to affirm.13

Moreover, we recall that at the time of the search, petitioner and his co-accused were on board a moving PAL aircraft tow truck. As stated earlier,

the search of a moving vehicle is recognized in this jurisdiction as a valid exception to the requirement for a search warrant. Such exception is easy

to understand. A search warrant may readily be obtained when the search is made in a store, dwelling house or other immobile structure. But it is

impracticable to obtain a warrant when the search is conducted in a mobile ship, aircraft or other motor vehicle since they can quickly be moved

out of the locality or jurisdiction where the warrant must be sought.14 Verily, we rule that the Court of Appeals committed no reversible error in

holding that the articles involved in the instant controversy were validly seized by the authorities even without a search warrant, hence, admissible

in evidence against petitioner and his co-accused.

G.R. No. 136292 January 15, 2002

RUDY CABALLES y TAIÑO, petitioner,

vs.

COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

PUNO, J.:

Caballes vs. Court of Appeals [GR 136292, 15 January 2002]

First Division, Puno (J): 4 concur

Facts: About 9:15 p.m. of 28 June 1989, Sgt. Victorino Noceja and Pat. Alex de Castro, while on a routine patrol in Barangay Sampalucan,

Pagsanjan, Laguna, spotted a passenger jeep unusually covered with “kakawati” leaves. Suspecting that the jeep was loaded with smuggled goods,

the two police officers flagged down the vehicle. The jeep was driven by Rudy Caballes y Taiño. When asked what was loaded on the jeep, he did

not answer, but he appeared pale and nervous. With Caballes’ consent, the police officers checked the cargo and they discovered bundles of 3.08 mm

aluminum/galvanized conductor wires exclusively owned by National Power Corporation (NAOCOR). The conductor wires weighed 700 kilos and

valued at P55,244.45. Noceja asked Caballes where the wires came from and Caballes answered that they came from Cavinti, a town approximately 8

kilometers away from Sampalucan. Thereafter, Caballes and the vehicle with the high-voltage wires were brought to the Pagsanjan Police Station.

Danilo Cabale took pictures of Caballes and the jeep loaded with the wires which were turned over to the Police Station Commander of Pagsanjan,

Laguna. Caballes was incarcerated for 7 days in the Municipal jail. Caballes was charged with the crime of theft in an information dated 16 October

1989. During the arraignment, Caballes pleaded not guilty and hence, trial on the merits ensued. On 27 April 1993, Regional Trial Court of Santa

Cruz, Laguna rendered judgment, finding Caballes, guilty beyond reasonable doubt of the crime of theft. In a resolution dated 9 November 1998, the

trial court denied Caballes’ motion for reconsideration. The Court of Appeals affirmed the trial court decision on 15 September 1998. Caballes

appealed the decision by certiorari.

Issue: Whether Caballes’ passive submission to the statement of Sgt. Noceja that the latter “will look at the contents of his vehicle and he answered

in the positive” be considered as waiver on Caballes’ part on warrantless search and seizure.

Held: Enshrined in our Constitution is the inviolable right of the people to be secure in their persons and properties against unreasonable searches

and seizures, as defined under Section 2, Article III thereof. The exclusionary rule under Section 3(2), Article III of the Constitution bars the

admission of evidence obtained in violation of such right. The constitutional proscription against warrantless searches and seizures is not absolute but

admits of certain exceptions, namely: (1) warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court

and by prevailing jurisprudence; (2) seizure of evidence in plain view; (3) search of moving vehicles; (4) consented warrantless search; (5) customs

search; (6) stop and frisk situations (Terry search); and (7) exigent and emergency circumstances. In cases where warrant is necessary, the steps

prescribed by the Constitution and reiterated in the Rules of Court must be complied with. In the exceptional events where warrant is not necessary to

effect a valid search or seizure, or when the latter cannot be performed except without a warrant, what constitutes a reasonable or unreasonable

search or seizure is purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or

seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched and the

character of the articles procured. It is not controverted that the search and seizure conducted by the police officers was not authorized by a search

warrant. The mere mobility of these vehicles, however, does not give the police officers unlimited discretion to conduct indiscriminate searches

without warrants if made within the interior of the territory and in the absence of probable cause. Herein, the police officers did not merely conduct a

visual search or visual inspection of Caballes’ vehicle. They had to reach inside the vehicle, lift the kakawati leaves and look inside the sacks before

they were able to see the cable wires. It thus cannot be considered a simple routine check. Also, Caballes’ vehicle was flagged down because the

police officers who were on routine patrol became suspicious when they saw that the back of the vehicle was covered with kakawati leaves which,

according to them, was unusual and uncommon. The fact that the vehicle looked suspicious simply because it is not common for such to be covered

with kakawati leaves does not constitute “probable cause” as would justify the conduct of a search without a warrant. In addi tion, the police

authorities do not claim to have received any confidential report or tipped information that petitioner was carrying stolen cable wires in his vehicle

which could otherwise have sustained their suspicion. Philippine jurisprudence is replete with cases where tipped information has become a sufficient

probable cause to effect a warrantless search and seizure. Unfortunately, none exists in the present case. Further, the evidence is lacking that Caballes

intentionally surrendered his right against unreasonable searches. The manner by which the two police officers allegedly obtained the consent of

Caballes for them to conduct the search leaves much to be desired. When Caballes’ vehicle was flagged down, Sgt. Noceja approached Caballes and

“told him I will look at the contents of his vehicle and he answered in the positive.” By uttering those words, it cannot be said the police officers were

asking or requesting for permission that they be allowed to search the vehicle of Caballes. For all intents and purposes, they were informing, nay,

imposing upon Caballes that they will search his vehicle. The “consent” given under intimidating or coercive circumstances is no consent within the

purview of the constitutional guaranty. In addition, in cases where the Court upheld the validity of consented search, it will be noted that the police

authorities expressly asked, in no uncertain terms, for the consent of the accused to be searched. And the consent of the accused was established by

clear and positive proof. Neither can Caballes’ passive submission be construed as an implied acquiescence to the warrantless search. Casting aside

the cable wires as evidence, the remaining evidence on record are insufficient to sustain Caballes’ conviction. His guilt can only be established

without violating the constitutional right of the accused against unreasonable search and seizure.

II. Plain view doctrine

It cannot likewise be said that the cable wires found in petitioner's vehicle were in plain view, making its warrantless seizure valid.

Jurisprudence is to the effect that an object is in plain view if the object itself is plainly exposed to sight. Where the object seized was inside a

closed package, the object itself is not in plain view and therefore cannot be seized without a warrant. However, if the package proclaims its

contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view

and may be seized. In other words, if the package is such that an experienced observer could infer from its appearance that it contains the

prohibited article, then the article is deemed in plain view. It must be immediately apparent to the police that the items that they observe may be

evidence of a crime, contraband or otherwise subject to seizure.38

It is clear from the records of this case that the cable wires were not exposed to sight because they were placed in sacks39 and covered with leaves.

The articles were neither transparent nor immediately apparent to the police authorities. They had no clue as to what was hidden underneath the

leaves and branches. As a matter of fact, they had to ask petitioner what was loaded in his vehicle. In such a case, it has been held that the object is

not in plain view which could have justified mere seizure of the articles without further search.40

III. Consented search

Petitioner contends that the statement of Sgt. Victorino Noceja that he checked the vehicle "with the consent of the accused" is too vague to prove

that petitioner consented to the search. He claims that there is no specific statement as to how the consent was asked and how it was given, nor

the specific words spoken by petitioner indicating his alleged "consent." At most, there was only an implied acquiescence, a mere passive

conformity, which is no "consent" at all within the purview of the constitutional guarantee.

Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. The consent must be

voluntary in order to validate an otherwise illegal detention and search, i.e., the consent is unequivocal, specific, and intelligently given,

uncontaminated by any duress or coercion.41 Hence, consent to a search is not to be lightly inferred, but must be shown by clear and convincing

evidence.42

The question whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the

circumstances.43 Relevant to this determination are the following characteristics of the person giving consent and the environment in which

consent is given: (1) the age of the defendant; (2) whether he was in a public or secluded location; (3) whether he objected to the search or

passively looked on;44 (4) the education and intelligence of the defendant; (5) the presence of coercive police procedures; (6) the defendant's belief

that no incriminating evidence will be found;45 (7) the nature of the police questioning; (8) the environment in which the questioning took place;

and (9) the possibly vulnerable subjective state of the person consenting.46 It is the State which has the burden of proving, by clear and positive

testimony, that the necessary consent was obtained and that it was freely and voluntarily given.47

Valmonte v. De Villa, G.R. No. 83988 September 29, 1989 (173 SCRA 211)

D E C I S I O N

PADILLA, J.:

I. THE FACTS

On 20 January 1987, the National Capital Region District Command (NCRDC) was activated pursuant to Letter of Instruction 02/87 of the

Philippine General Headquarters, AFP, with the mission of conducting security operations within its area of responsibility and peripheral

areas, for the purpose of establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive

to the social, economic and political development of the National Capital Region. As part of its duty to maintain peace and order, the

NCRDC installed checkpoints in various parts of Valenzuela, Metro Manila.

Petitioners Atty. Ricardo Valmonte, who is a resident of Valenzuela, Metro Manila, and the Union of Lawyers and Advocates For People’s

Rights (ULAP) sought the declaration of checkpoints in Valenzuela, Metro Manila and elsewhere as unconstitutional. In the alternative, they

prayed that respondents Renato De Villa and the National Capital Region District Command (NCRDC) be directed to formulate guidelines

in the implementation of checkpoints for the protection of the people. Petitioners contended that the checkpoints gave the respondents

blanket authority to make searches and seizures without search warrant or court order in violation of the Constitution.

II. THE ISSUE

Do the military and police checkpoints violate the right of the people against unreasonable search and seizures?

III. THE RULING

[The Court, voting 13-2, DISMISSED the petition.]

NO, military and police checkpoints DO NOT violate the right of the people against unreasonable search and seizures.

xxx. Not all searches and seizures are prohibited. Those which are reasonable are not forbidden. A reasonable search is not to be determined

by any fixed formula but is to be resolved according to the facts of each case.

Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds, or simply

looks into a vehicle, or flashes a light therein, these do not constitute unreasonable search.

The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be considered as a security measure to enable

the NCRDC to pursue its mission of establishing effective territorial defense and maintaining peace and order for the benefit of the public.

Checkpoints may also be regarded as measures to thwart plots to destabilize the government, in the interest of public security. In this

connection, the Court may take judicial notice of the shift to urban centers and their suburbs of the insurgency movement, so clearly

reflected in the increased killings in cities of police and military men by NPA “sparrow units,” not to mention the abundance of unlicensed

firearms and the alarming rise in lawlessness and violence in such urban centers, not all of which are reported in media, most likely brought

about by deteriorating economic conditions – which all sum up to what one can rightly consider, at the very least, as abnormal times.

Between the inherent right of the state to protect its existence and promote public welfare and an individual's right against a warrantless

search which is however reasonably conducted, the former should prevail.

True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform, in the same manner that all governmental

power is susceptible of abuse. But, at the cost of occasional inconvenience, discomfort and even irritation to the citizen, the checkpoints

during these abnormal times, when conducted within reasonable limits, are part of the price we pay for an orderly society and a peaceful

community.

G.R. No. 80508 January 30, 1990

EDDIE GUAZON, JOSEFINA CABRERA, YOLANDA DACUNES, VIOLETA SEVILLA, QUERUBIN BILLONES, ESTELITA BILLONES, GORGONIA MACARAEG,

LAUREANA JOAQUIN, CRESTITA LICUP, SOLIDAD ABURDO, ROSALINA VILLARDA, CONRADA HOBALANE, ERLINDA RESTORAN, VERIDIAN FLORA,

ROSELA CONDE, SOSIMA COSTO, JOSEFINA ALDIANO, ROSALINA DOMINGO, ARESTIO YANGA, MILAGROS GONZALES, ESTRELITA ESTARES,

BONIFACIA ANTIVO, PATRIA VALLES, ERLINDA LEE, MELANIO GAROFIL, ERIBERTO MATEO, FRANCISCO HORTILLANO, ANATALIA PESIMO,

LOSENDO GARBO, VIRGINIA LORESTO, LYDIA ELA, RAFAEL VILLABRILLE, MA. RECHILDA SABALZA, EDITHA MAAMO, ELENIETA BANOSA,

ALEXANDER LABADO, ANDREW GO, WYNEFREDO REYES, ROSARIO SESPENE, ROSA MARTIN and JAIME BONGAT, petitioners,

vs.

MAJ. GEN. RENATO DE VILLA, BRIG. GEN. ALEXANDER AGUIRRE, BRIG. GEN. RAMON MONTANO, BRIG. GEN. ALFREDO LIM, and COL. JESUS

GARCIA, respondents.

GUTIERREZ, JR., J.:

This is a petition for prohibition with preliminary injunction to prohibit the military and police officers represented by public respondents from

conducting "Areal Target Zonings" or "Saturation Drives" in Metro Manila.

The forty one (41) petitioners state that they are all of legal age, bona fide residents of Metro Manila and taxpayers and leaders in their respective

communities. They maintain that they have a common or general interest in the preservation of the rule of law, protection of their human rights

and the reign of peace and order in their communities. They claim to represent "the citizens of Metro Manila who have similar interests and are so

numerous that it is impracticable to bring them all before this Court."

The public respondents, represented by the Solicitor General, oppose the petition contending inter alia that petitioners lack standing to file the

instant petition for they are not the proper parties to institute the action.

According to the petitioners, the following "saturation drives" were conducted in Metro Manila:

1. March 5, 1987 at about 9:30 PM in Tindalo, Kagitingan, and Magdalena Streets, Tondo, Manila.

2. June l9, 1987 at about l0:00 PM in Mata Street, Panday Pira Extension and San Sebastian Street, Tondo, Manila.

3. July 20, 1987 at about 8:00 AM in Bangkusay Street, Tondo, Manila.

4. August 11 to l3, 1987 between 11:00 PM and 2:00 AM in six blocks along Aroma Beach up to Happy Land, Magsaysay Village, Tondo, Manila.

5. August 19, 1987 at 9:00 PM in Herbosa Extension, Quirino Street, and Pacheco Street, Tondo, Manila.

6. August 28, 1987 at l0:30 PM, in Block 34, Dagat-dagatan Navotas, Metro Manila.

7. August 30, 1987 at 9:30 PM at Paraiso Extension, Magsaysay Village, Tondo, Manila.

8. October 12, 1987 at 12:00 midnight in Apelo Cruz Compound, Quezon City.

9. October 17, 1987 at 11:00 PM in Quirino Street, Tondo, Manila.

10. October 23, 1987 at 2:30 A.M. in Sun Valley Drive, Manila International Airport, Pasay City.

11. November 1, 1987 at 4:00 A.M. in Cordillera Street, Sta. Mesa, Manila.

12. November 3, 1987 at 5:00 A.M. in Lower Maricaban, Pasay City, Metro Manila.

According to the petitioners, the "areal target zonings" or saturation drives" are in critical areas pinpointed by the military and police as places

where the subversives are hiding. The arrests range from seven (7) persons during the July 20 saturation drive in Bangkusay, Tondo to one

thousand five hundred (1,500) allegedly apprehended on November 3 during the drive at Lower Maricaban, Pasay City. The petitioners claim that

the saturation drives follow a common pattern of human rights abuses. In all these drives, it is alleged that the following were committed:

1. Having no specific target house in mind, in the dead of the night or early morning hours, police and military units without any

search warrant or warrant of arrest cordon an area of more than one residence and sometimes whole barangay or areas of

barangay in Metro Manila. Most of them are in civilian clothes and without nameplates or identification cards.

2. These raiders rudely rouse residents from their sleep by banging on the walls and windows of their homes, shouting, kicking

their doors open (destroying some in the process), and then ordering the residents within to come out of their respective

residences.

3. The residents at the point of high-powered guns are herded like cows, the men are ordered to strip down to their briefs and

examined for tattoo marks and other imagined marks.

4. While the examination of the bodies of the men are being conducted by the raiders, some of the members of the raiding

team force their way into each and every house within the cordoned off area and then proceed to conduct search of the said

houses without civilian witnesses from the neighborhood.

5. In many instances, many residents have complained that the raiders ransack their homes, tossing about the residents'

belongings without total regard for their value. In several instances, walls are destroyed, ceilings are damaged in the raiders'

illegal effort to 'fish' for incriminating evidence.

6. Some victims of these illegal operations have complained with increasing frequency that their money and valuables have

disappeared after the said operations.

7. All men and some women who respond to these illegal and unwelcome intrusions are arrested on the spot and hauled off to

waiting vehicles that take them to detention centers where they are interrogated and 'verified.' These arrests are all conducted

without any warrants of arrest duly issued by a judge, nor under the conditions that will authorize warrantless arrest. Some

hooded men are used to fingerpoint suspected subversives.

8. In some instances, arrested persons are released after the expiration of the period wherein they can be legally detained

without any charge at all. In other instances, some arrested persons are released without charge after a few days of arbitrary

detention.

9. The raiders almost always brandish their weapons and point them at the residents during these illegal operations.

10. Many have also reported incidents of on-the-spotbeatings, maulings and maltreatment.

11. Those who are detained for further 'verification' by the raiders are subjected to mental and physical torture to extract

confessions and tactical information. (Rollo, pp. 2-4)

The public respondents stress two points in their Comment which was also adopted as their Memorandum after the petition was given due course.

First, the respondents have legal authority to conduct saturation drives. And second, they allege that the accusations of the petitioners about a

deliberate disregard for human rights are total lies.

Insofar as the legal basis for saturation drives is concerned, the respondents cite Article VII, Section 17 of the Constitution which provides:

The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be

faithfully executed. (Emphasis supplied )

They also cite Section 18 of the same Article which provides:

The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he

may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. ...

There can be no question that under ordinary circumstances, the police action of the nature described by the petitioners would be illegal and

blantantly violative of the express guarantees of the Bill of Rights. If the military and the police must conduct concerted campaigns to flush out and

catch criminal elements, such drives must be consistent with the constitutional and statutory rights of all the people affected by such actions.

There is, of course, nothing in the Constitution which denies the authority of the Chief Executive, invoked by the Solicitor General, to order police

actions to stop unabated criminality, rising lawlessness, and alarming communist activities. The Constitution grants to Government the power to

seek and cripple subversive movements which would bring down constituted authority and substitute a regime where individual liberties are

suppressed as a matter of policy in the name of security of the State. However, all police actions are governed by the limitations of the Bill of

Rights. The Government cannot adopt the same reprehensible methods of authoritarian systems both of the right and of the left, the enlargement

of whose spheres of influence it is trying hard to suppress. Our democratic institutions may still be fragile but they are not in the least bit

strengthened through violations of the constitutional protections which are their distinguishing features.

In Roan v. Gonzales (145 SCRA 687; 690-691 [1986]), the Court stated:

One of the most precious rights of the citizen in a free society is the right to be left alone in the privacy of his own house. That

right has ancient roots, dating back through the mists of history to the mighty English kings in their fortresses of power. Even

then, the lowly subject had his own castle where he was monarch of all he surveyed. This was his humble cottage from which

he could bar his sovereign lord and all the forces of the Crown.

That right has endured through the ages albeit only in a few libertarian regimes. Their number, regrettably, continues to

dwindle against the onslaughts of authoritarianism. We are among the fortunate few, able again to enjoy this right after the

ordeal of the past despotism. We must cherish and protect it all the more now because it is like a prodigal son returning.

That right is guaranteed in the following provisions of Article IV of the 1973 Constitution:

SEC. 3. 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 not be violated, and no search warrant or warrant of arrest shall issue

except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after

examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the

place to be searched, and the persons or things to be seized.

xxx xxx xxx

Only last year, the Court again issued this reminder in 20th Century Fox Film Corporation v. Court of Appeals (164 SCRA 655; 660- 661 [1988]):

This constitutional right protects a citizen against wanton and unreasonable invasion of his privacy and liberty as to his person,

papers and effects. We have explained in the case of People vs. Burgos (144 SCRA 1) citing Villanueva v. Querubin (48 SCRA 345)

why the right is so important:

It is deference to one's personality that lies at the core of this right, but it could be also looked upon as a recognition of a

constitutionally protected area, primarily one's home, but not necessarily thereto confined. (Cf. Hoffa v. United States, 385 US

293 [1966]) What is sought to be guarded is a man's prerogative to choose who is allowed entry to his residence. In that haven

of refuge, his individuality can assert itself not only in the choice of who shall be welcome but likewise in the kind of objects he

wants around him. There the state, however powerful, does not as such have access except under the circumstances above

noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion

by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life. (Cf.

Schmerber v. California, 384 US 757 [1966], Brennan J. and Boyd v. United States, 11 6 630 [1886]). In the same vein, Landynski

in his authoritative work (Search and Seizure and the Supreme Court [1966]), could fitly characterize constitutional right as the

embodiment of a spiritual concept: the belief that to value the privacy of home and person and to afford its constitutional

protection against the long reach of government is no less than to value human dignity, and that his privacy must not be

disturbed except in case of overriding social need, and then only under stringent procedural safeguards. (ibid, p. 74.)

The decision of the United States Supreme Court in Rochin v. California, (342 US 165; 96 L. Ed. 183 [1952]) emphasizes clearly that police actions

should not be characterized by methods that offend a sense of justice. The court ruled:

Applying these general considerations to the circumstances of the present case, we are compelled to conclude that the

proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private

sentimentalism about combatting crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the

privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach's

contents this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities.

They are methods too close to the rack and the screw to permit of constitutional differentiation.

It is significant that it is not the police action perse which is impermissible and which should be prohibited. Rather, it is the procedure used or in the

words of the court, methods which "offend even hardened sensibilities." In Breithaupt v. Abram (352 US 432, 1 L. Ed. 2nd 448 [1957]), the same

court validated the use of evidence, in this case blood samples involuntarily taken from the petitioner, where there was nothing brutal or offensive

in the taking. The Court stated:

Basically the distinction rests on the fact that there is nothing 'brutal' or 'offensive' in the taking of a sample of blood when

done, as in this case, under the protective eye of a physician. To be sure, the driver here was unconscious when the blood was

taken, but the absence of conscious consent, without more, does not necessarily render the taking a violation of a

constitutional light; and certainly the rest was administered here would not be considered offensive by even the most delicate.

Furthermore, due process is not measured by the yardstick of personal reaction or the sphygmogram of the most sensitive

person, but by that whole community sense of 'decency and fairness that has been woven by common experience into the

fabric of acceptable conduct....

The individual's right to immunity from such invasion of his body was considered as "far outweighed by the value of its deterrent effect" on the evil

sought to be avoided by the police action.

It is clear, therefore, that the nature of the affirmative relief hinges closely on the determination of the exact facts surrounding a particular case.

The violations of human rights alleged by the petitioners are serious. If an orderly procedure ascertains their truth, not only a writ of prohibition

but criminal prosecutions would immediately issue as a matter of course. A persistent pattern of wholesale and gross abuse of civil liberties, as

alleged in the petition, has no place in civilized society.

On the other hand, according to the respondents, the statements made by the petitioners are a complete lie.

The Solicitor General argues:

This a complete lie.

Just the contrary, they had been conducted with due regard to human rights. Not only that, they were intelligently and carefully

planned months ahead of the actual operation. They were executed in coordination with barangay officials who pleaded with

their constituents to submit themselves voluntarily for character and personal verification. Local and foreign correspondents,

who had joined these operations, witnessed and recorded the events that transpired relative thereto. (After Operation Reports:

November 5, 1987, Annex 12; November 20, 1987, Annex 13; November 24, 1987, Annex 14). That is why in all the drives so far

conducted, the alleged victims who numbered thousands had not themselves complained.

In her speech during turn-over rites on January 26, 1987 at Camp Aguinaldo, President Aquino branded all accusations of

deliberate disregard for human rights as 'total lies'. Here are excerpts from her strongest speech yet in support of the military:

All accusations of a deliberate disregard for human rights have been shown- up to be total lies.

...To our soldiers, let me say go out and fight, fight with every assurance that I will stand by you through thick and thin to share

the blame, defend your actions, mourn the losses and enjoy with you the final victory that I am certain will be ours.

You and I will see this through together.

I've sworn to defend and uphold the Constitution.

We have wasted enough time answering their barkings for it is still a long way to lasting peace. . . . The dangers and hardships

to our men in the field are great enough as it is without having them distracted by tills worthless carping at their backs.

Our counter-insurgency policy remains the same: economic development to pull out the roots-and military operations to slash

the growth — of the insurgency.

The answer to terror is force — now.

Only feats of arms can buy us the time needed to make our economic and social initiatives bear fruit. . . Now that the extreme

Right has been defeated, I expect greater vigor in the prosecution of the war against the communist insurgency, even as we

continue to watch our backs against attacks from the Right. (Philippine Star, January 27, 1988, p. 1, Annex 15; emphasis

supplied)

Viewed in the light of President Aquino's observation on the matter, it can be said that petitioners misrepresent as human

rights violations the military and police's zealous vigilance over the people's right to live in peace and safety. (Rollo, pp. 36-38)

Herein lies the problem of the Court. We can only guess the truth. Everything before us consists of allegations. According to the petitioners, more

than 3,407 persons were arrested in the saturation drives covered by the petition. No estimates are given for the drives in Block 34, Dagat-dagatan,

Navotas; Apelo Cruz Compound, Pasig; and Sun Valley Drive near the Manila International Airport area. Not one of the several thousand persons

treated in the illegal and inhuman manner described by the petitioners appears as a petitioner or has come before a trial court to present the kind

of evidence admissible in courts of justice. Moreover, there must have been tens of thousands of nearby residents who were inconvenienced in

addition to the several thousand allegedly arrested. None of those arrested has apparently been charged and none of those affected has

apparently complained.

A particularly intriguing aspect of the Solicitor General's comments is the statement that local and foreign co-respondents actually joined the

saturation drives and witnessed and recorded the events. In other words, the activities sought to be completely proscribed were in full view of

media. The sight of hooded men allegedly being used to fingerpoint suspected subversives would have been good television copy. If true, this was

probably effected away from the ubiquitous eye of the TV cameras or, as the Solicitor General contends, the allegation is a "complete lie."

The latest attempt to stage a coup d'etat where several thousand members of the Armed Forces of the Philippines sought to overthrow the present

Government introduces another aspect of the problem and illustrates quite clearly why those directly affected by human rights violations should be

the ones to institute court actions and why evidence of what actually transpired should first be developed before petitions are filed with this Court.

Where there is large scale mutiny or actual rebellion, the police or military may go in force to the combat areas, enter affected residences or

buildings, round up suspected rebels and otherwise quell the mutiny or rebellion without having to secure search warrants and without violating

the Bill of Rights. This is exactly what happened in the White Plains Subdivision and the commercial center of Makati during the first week of

December, 1989.

The areal target zonings in this petition were intended to flush out subversives and criminal elements particularly because of the blatant

assassinations of public officers and police officials by elements supposedly coddled by the communities where the "drives" were conducted.

It is clear from the pleadings of both petitioners and respondents, however, that there was no rebellion or criminal activity similar to that of the

attempted coup d' etats. There appears to have been no impediment to securing search warrants or warrants of arrest before any houses were

searched or individuals roused from sleep were arrested. There is no strong showing that the objectives sought to be attained by the "areal zoning"

could not be achieved even as the rights of squatter and low income families are fully protected.

Where a violation of human rights specifically guaranteed by the Constitution is involved, it is the duty of the court to stop the transgression and

state where even the awesome power of the state may not encroach upon the rights of the individual. It is the duty of the court to take remedial

action even in cases such as the present petition where the petitioners do not complain that they were victims of the police actions, where no

names of any of the thousands of alleged victims are given, and where the prayer is a general one to stop all police "saturation drives," as long as

the Court is convinced that the event actually happened.

The Court believes it highly probable that some violations were actually committed. This is so inspite of the alleged pleas of barangay officials for

the thousands of residents "to submit themselves voluntarily for character and personal verification." We cannot imagine police actions of the

magnitude described in the petitions and admitted by the respondents, being undertaken without some undisciplined soldiers and policemen

committing certain abuses. However, the remedy is not to stop all police actions, including the essential and legitimate ones. We see nothing wrong

in police making their presence visibly felt in troubled areas. Police cannot respond to riots or violent demonstrations if they do not move in

sufficient numbers. A show of force is sometimes necessary as long as the rights of people are protected and not violated. A blanket prohibition

such as that sought by the petitioners would limit all police actions to one on one confrontations where search warrants and warrants of arrests

against specific individuals are easily procured. Anarchy may reign if the military and the police decide to sit down in their offices because all

concerted drives where a show of force is present are totally prohibited.

The remedy is not an original action for prohibition brought through a taxpayers' suit. Where not one victim complains and not one violator is

properly charged, the problem is not initially for the Supreme Court. It is basically one for the executive departments and for trial courts . Well

meaning citizens with only second hand knowledge of the events cannot keep on indiscriminately tossing problems of the executive, the military,

and the police to the Supreme Court as if we are the repository of all remedies for all evils. The rules of constitutional litigation have been evolved

for an orderly procedure in the vindication of rights. They should be followed. If our policy makers sustain the contention of the military and the

police that occasional saturation drives are essential to maintain the stability of government and to insure peace and order, clear policy guidelines

on the behavior of soldiers and policemen must not only be evolved, they should also be enforced. A method of pinpointing human rights abuses

and identifying violators is necessary.

The problem is appropriate for the Commission on Human Rights. A high level conference should bring together the heads of the Department of

Justice, Department of National Defense and the operating heads of affected agencies and institutions to devise procedures for the prevention of

abuses.

Under the circumstances of this taxpayers' suit, there is no erring soldier or policeman whom we can order prosecuted. In the absence of clear facts

ascertained through an orderly procedure, no permanent relief can be given at this time. Further investigation of the petitioners' charges and a

hard look by administration officials at the policy implications of the prayed for blanket prohibition are also warranted.

In the meantime and in the face of a prima facie showing that some abuses were probably committed and could be committed during future police

actions, we have to temporarily restrain the alleged banging on walls, the kicking in of doors, the herding of half-naked men to assembly areas for

examination of tattoo marks, the violation of residences even if these are humble shanties of squatters, and the other alleged acts which are

shocking to the conscience.

WHEREFORE, the petition is hereby REMANDED to the Regional Trial Courts of Manila, Malabon, and Pasay City where the petitioners may present

evidence supporting their allegations and where specific erring parties may be pinpointed and prosecuted.

Copies of this decision are likewise forwarded to the Commission on Human Rights, the Secretary of Justice, the Secretary of National Defense, and

the Commanding General PC-INP for the drawing up and enforcement of clear guidelines to govern police actions intended to abate riots and civil

disturbances, flush out criminal elements, and subdue terrorist activities.

In the meantime, the acts violative of human rights alleged by the petitioners as committed during the police actions are ENJOINED until such time

as permanent rules to govern such actions are promulgated.

SO ORDERED.

G.R. No. 123595 December 12, 1997

SAMMY MALACAT y MANDAR, petitioner,

vs.

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

DAVIDE, JR., J.:

In an Information 1 filed on 30 August 1990, in Criminal Case No. 90-86748 before the Regional Trial Court (RTC) of Manila, Branch 5, petitioner

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

That on or about August 27, 1990, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and

knowingly keep, possess and/or acquire a hand grenade, without first securing the necessary license and/or permit therefor

from the proper authorities.

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

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

authorities were not armed with a search warrant nor warrant of arrest at the time they arrested petitioner. 5

At trial on the merits, the prosecution presented the following police officers as its witnesses: Rodolfo Yu, the arresting officer; Josefino G. Serapio,

the investigating officer; and Orlando Ramilo, who examined the grenade.

Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated National Police, Police Station No. 3, Quiapo, Manila, testified

that on 27 August 1990, at about 6:30 p.m., in response to bomb threats reported seven days earlier, he was on foot patrol with three other police

officers (all of them in uniform) along Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store at Plaza Miranda. They chanced upon two

groups of Muslim-looking men, with each group, comprised of three to four men, posted at opposite sides of the corner of Quezon Boulevard near

the Mercury Drug Store. These men were acting suspiciously with "[t]heir eyes. . . moving very fast." 6

Yu and his companions positioned themselves at strategic points and observed both groups for about thirty minutes. The police officers then

approached one group of men, who then fled in different directions. As the policemen gave chase, Yu caught up with and apprehended petitioner.

Upon searching petitioner, Yu found a fragmentation grenade tucked inside petitioner's "front waist line." 7 Yu's companion, police officer Rogelio

Malibiran, apprehended Abdul Casan from whom a .38 caliber revolver was recovered. Petitioner and Casan were then brought to Police Station

No. 3 where Yu placed an "X" mark at the bottom of the grenade and thereafter gave it to his commander. 8

On cross-examination, Yu declared that they conducted the foot patrol due to a report that a group of Muslims was going to explode a grenade

somewhere in the vicinity of Plaza Miranda. Yu recognized petitioner as the previous Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw

petitioner and 2 others attempt to detonate a grenade. The attempt was aborted when Yu and other policemen chased petitioner and his

companions; however, the former were unable to catch any of the latter. Yu further admitted that petitioner and Casan were merely standing on

the corner of Quezon Boulevard when Yu saw them on 27 August 1990. Although they were not creating a commotion, since they were supposedly

acting suspiciously, Yu and his companions approached them. Yu did not issue any receipt for the grenade he allegedly recovered from petitioner. 9

Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner and a certain Abdul Casan were brought in by Sgt. Saquilla 10 for

investigation. Forthwith, Serapio conducted the inquest of the two suspects, informing them of their rights to remain silent and to be assisted by

competent and independent counsel. Despite Serapio's advice, petitioner and Casan manifested their willingness to answer questions even without

the assistance of a lawyer. Serapio then took petitioner's uncounselled confession (Exh. "E"), there being no PAO lawyer available, wherein

petitioner admitted possession of the grenade. Thereafter, Serapio prepared the affidavit of arrest and booking sheet of petitioner and Casan.

Later, Serapio turned over the grenade to the Intelligence and Special Action Division (ISAD) of the Explosive Ordinance Disposal Unit for

examination. 11

On cross-examination, Serapio admitted that he took petitioner's confession knowing it was inadmissible in evidence. 12

Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties included, among other things, the examination of explosive devices,

testified that on 22 March 1991, he received a request dated 19 March 1991 from Lt. Eduardo Cabrera and PO Diosdado Diotoy for examination of

a grenade. Ramilo then affixed an orange tag on the subject grenade detailing his name, the date and time he received the specimen. During the

preliminary examination of the grenade, he "[f]ound that [the] major components consisting of [a] high filler and fuse assembly [were] all present,"

and concluded that the grenade was "[l]ive and capable of exploding." On even date, he issued a certification stating his findings, a copy of which

he forwarded to Diotoy on 11 August 1991. 13

Petitioner was the lone defense witness. He declared that he arrived in Manila on 22 July 1990 and resided at the Muslim Center in Quiapo, Manila.

At around 6:30 in the evening of 27 August 1990, he went to Plaza Miranda to catch a breath of fresh air. Shortly after, several policemen arrived

and ordered all males to stand aside. The policemen searched petitioner and two other men, but found nothing in their possession. However, he

was arrested with two others, brought to and detained at Precinct No. 3, where he was accused of having shot a police officer. The officer showed

the gunshot wounds he allegedly sustained and shouted at petitioner "[i]to ang tama mo sa akin." This officer then inserted the muzzle of his gun

into petitioner's mouth and said, "[y]ou are the one who shot me." Petitioner denied the charges and explained that he only recently arrived in

Manila. However, several other police officers mauled him, hitting him with benches and guns. Petitioner was once again searched, but nothing

was found on him. He saw the grenade only in court when it was presented. 14

The trial court ruled that the warrantless search and seizure of petitioner was akin to it a "stop and frisk," where a "warrant and seizure can be

effected without necessarily being preceded by an arrest" and "whose object is either to maintain the status quo momentarily while the police

officer seeks to obtain more information." 15

Probable cause was not required as it was not certain that a crime had been committed, however, the

situation called for an investigation, hence to require probable cause would have been "premature." 16 The RTC emphasized that Yu and his

companions were "[c]onfronted with an emergency, in which the delay necessary to obtain a warrant, threatens the destruction of evidence" 17

and the officers "[h]ad to act in haste," as petitioner and his companions were acting suspiciously, considering the time, place and "reported cases

of bombing." Further, petitioner's group suddenly ran away in different directions as they saw the arresting officers approach, thus "[i]t is

reasonable for an officer to conduct a limited search, the purpose of which is not necessarily to discover evidence of a crime, but to allow the

officer to pursue his investigation without fear of violence." 18

The trial court then ruled that the seizure of the grenade from petitioner was incidental to a lawful arrest, and since petitioner "[l]ater voluntarily

admitted such fact to the police investigator for the purpose of bombing the Mercury Drug Store," concluded that sufficient evidence existed to

establish petitioner's guilt beyond reasonable doubt.

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

possession of explosives under Section 3 of P.D. No. 186, and sentenced him to suffer:

[T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL, as

minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum.

On 18 February 1994, petitioner filed a notice of appeal 20 indicating that he was appealing to this Court. However, the record of the case was

forwarded to the Court of Appeals which docketed it as CA-G.R. CR No. 15988 and issued a notice to file briefs. 21

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

1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH UPON THE PERSON OF ACCUSED-APPELLANT

AND THE SEIZURE OF THE ALLEGED HANDGRENADE FROM HIM "WAS AN APPROPRIATE INCIDENT TO HIS

ARREST."

2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE AGAINST ACCUSED-APPELLANT THE

HANDGRENADE ALLEGEDLY SEIZED FROM HIM AS IT WAS A PRODUCT OF AN UNREASONABLE AND ILLEGAL

SEARCH.

In sum, petitioner argued that the warrantless arrest was invalid due to absence of any of the conditions provided for in Section 5 of Rule 113 of

the Rules of Court, citing People vs. Mengote. 23 As such, the search was illegal, and the hand grenade seized, inadmissible in evidence.

In its Brief for the Appellee, the Office of the Solicitor General agreed with the trial court and prayed that its decision be affirmed in toto. 24

In its decision of 24 January 1996, 25 the Court of Appeals affirmed the trial court, noting, first, that petitioner abandoned his original theory before

the court a quo that the grenade was "planted" by the police officers; and second, the factual finding of the trial court that the grenade was seized

from petitioner's possession was not raised as an issue. Further, respondent court focused on the admissibility in evidence of Exhibit "D," the hand

grenade seized from petitioner. Meeting the issue squarely, the Court of Appeals ruled that the arrest was lawful on the ground that there was

probable cause for the arrest as petitioner was "attempting to commit an offense," thus:

We are at a loss to understand how a man, who was in possession of a live grenade and in the company of other suspicious

character[s] with unlicensed firearm[s] lurking in Plaza Miranda at a time when political tension ha[d] been enkindling a series

of terroristic activities, [can] claim that he was not attempting to commit an offense. We need not mention that Plaza Miranda

is historically notorious for being a favorite bomb site especially during times of political upheaval. As the mere possession of an

unlicensed grenade is by itself an offense, Malacat's posture is simply too preposterous to inspire belief.

In so doing, the Court of Appeals took into account petitioner's failure to rebut the testimony of the prosecution witnesses that they received

intelligence reports of a bomb threat at Plaza Miranda; the fact that PO Yu chased petitioner two days prior to the latter's arrest, or on 27 August

1990; and that petitioner and his companions acted suspiciously, the "accumulation" of which was more than sufficient to convince a reasonable

man that an offense was about to be committed. Moreover, the Court of Appeals observed:

The police officers in such a volatile situation would be guilty of gross negligence and dereliction of duty, not to mention of

gross incompetence, if they [would] first wait for Malacat to hurl the grenade, and kill several innocent persons while maiming

numerous others, before arriving at what would then be an assured but moot conclusion that there was indeed probable cause

for an arrest. We are in agreement with the lower court in saying that the probable cause in such a situation should not be the

kind of proof necessary to convict, but rather the practical considerations of everyday life on which a reasonable and prudent

mind, and not legal technicians, will ordinarily act.

Finally, the Court of Appeals held that the rule laid down in People v. Mengote, 26

which petitioner relied upon, was inapplicable in light of "[c]rucial

differences," to wit:

[In Mengote] the police officers never received any intelligence report that someone [at] the corner of a busy street [would] be

in possession of a prohibited article. Here the police officers were responding to a [sic] public clamor to put a check on the

series of terroristic bombings in the Metropolis, and, after receiving intelligence reports about a bomb threat aimed at the

vicinity of the historically notorious Plaza Miranda, they conducted foot patrols for about seven days to observe suspicious

movements in the area. Furthermore, in Mengote, the police officers [had] no personal knowledge that the person arrested has

committed, is actually committing, or is attempting to commit an offense. Here, PO3 Yu [had] personal knowledge of the fact

that he chased Malacat in Plaza Miranda two days before he finally succeeded in apprehending him.

Unable to accept his conviction, petitioner forthwith filed the instant petition and assigns the following errors:

1. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF THE TRIAL COURT THAT THE

WARRANTIES ARREST OF PETITIONER WAS VALID AND LEGAL.

2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING IN PEOPLE VS. MENGOTE DOES NOT

FIND APPLICATION IN THE INSTANT CASE.

In support thereof, petitioner merely restates his arguments below regarding the validity of the warrantless arrest and search, then

disagrees with the finding of the Court of Appeals that he was "attempting to commit a crime," as the evidence for the prosecution

merely disclosed that he was "standing at the corner of Plaza Miranda and Quezon Boulevard" with his eyes "moving very fast" and

"looking at every person that come (sic) nearer (sic) to them." Finally, petitioner points out the factual similarities between his case and

that of People v. Mengote to demonstrate that the Court of Appeals miscomprehended the latter.

In its Comment, the Office of the Solicitor General prays that we affirm the challenged decision..

For being impressed with merit, we resolved to give due course to the petition.

The challenged decision must immediately fall on jurisdictional grounds. To repeat, the penalty imposed by the trial court was:

[N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not

more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum.

The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall unlawfully possess grenades is reclusion temporal in its

maximum period to reclusion perpetua.

For purposes of determining appellate jurisdiction in criminal cases, the maximum of the penalty, and not the minimum, is taken into account.

Since the maximum of the penalty is reclusion perpetua, the appeal therefrom should have been to us, and not the Court of Appeals, pursuant to

Section 9(3) of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129), 27

in relation to Section 17 of the Judiciary Act of 1948, 28

Section 5(2) of

Article VIII of the Constitution 29 and Section 3(c) of Rule 122 of the Rules of Court. 30 The term "life imprisonment" as used in Section 9 of B.P. Blg.

129, the Judiciary Act of 1948, and Section 3 of Rule 122 must be deemed to include reclusion perpetua in view of Section 5(2) of Article VIII of the

Constitution.

Petitioner's Notice of Appeal indicated that he was appealing from the trial court's decision to this Court, yet the trial court transmitted the record

to the Court of Appeals and the latter proceeded to resolve the appeal.

We then set aside the decision of the Court of Appeals for having been rendered without jurisdiction, and consider the appeal as having been

directly brought to us, with the petition for review as petitioner's Brief for the Appellant, the comment thereon by the Office of the Solicitor

General as the Brief for the Appellee and the memoranda of the parties as their Supplemental Briefs.

Deliberating on the foregoing pleadings, we find ourselves convinced that the prosecution failed to establish petitioner's guilt with moral certainty.

First, serious doubt surrounds the story of police officer Yu that a grenade was found in and seized from petitioner's possession. Notably, Yu did not

identify, in court, the grenade he allegedly seized. According to him, he turned it over to his commander after putting an "X" mark at its bottom;

however, the commander was not presented to corroborate this claim. On the other hand, the grenade presented in court and identified by police

officer Ramilo referred to what the latter received from Lt. Eduardo Cabrera and police officer Diotoy not immediately after petitioner's arrest, but

nearly seven (7) months later, or on 19 March 1991; further, there was no evidence whatsoever that what Ramilo received was the very same

grenade seized from petitioner. In his testimony, Yu never declared that the grenade passed on to Ramilo was the grenade the former confiscated

from petitioner. Yu did not, and was not made to, identify the grenade examined by Ramilo, and the latter did not claim that the grenade he

examined was that seized from petitioner. Plainly, the law enforcement authorities failed to safeguard and preserve the chain of evidence so

crucial in cases such as these.

Second, if indeed petitioner had a grenade with him, and that two days earlier he was with a group about to detonate an explosive at Plaza

Miranda, and Yu and his fellow officers chased, but failed to arrest them, then considering that Yu and his three fellow officers were in uniform and

therefore easily cognizable as police officers, it was then unnatural and against common experience that petitioner simply stood there in proximity

to the police officers. Note that Yu observed petitioner for thirty minutes and must have been close enough to petitioner in order to discern

petitioner's eyes "moving very fast."

Finally, even assuming that petitioner admitted possession of the grenade during his custodial investigation by police officer Serapio, such

admission was inadmissible in evidence for it was taken in palpable violation of Section 12(1) and (3) of Article III of the Constitution, which provide

as follows:

Sec. 12 (1). Any person under investigation for the commission of an offense shall have the right to be informed of his right to

remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the

services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of

counsel.

xxx xxx xxx

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

Serapio conducted the custodial investigation on petitioner the day following his arrest. No lawyer was present and Serapio could not

have requested a lawyer to assist petitioner as no PAO lawyer was then available. Thus, even if petitioner consented to the investigation

and waived his rights to remain silent and to counsel, the waiver was invalid as it was not in writing, neither was it executed in the

presence of counsel.

Even granting ex gratia that petitioner was in possession of a grenade, the arrest and search of petitioner were invalid, as will be discussed below.

The general rule as regards arrests, searches and seizures is that a warrant is needed in order to validly effect the same. 31

The Constitutional

prohibition against unreasonable arrests, searches and seizures refers to those effected without a validly issued warrant, 32

subject to certain

exceptions. As regards valid warrantless arrests, these are found in Section 5, Rule 113 of the Rules of Court, which reads, in part:

Sec. 5. — Arrest, without warrant; when lawful — A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting

to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that

the person to be arrested has committed it; and

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

A warrantless arrest under the circumstances contemplated under Section 5(a) has been denominated as one "in flagrante delicto," while

that under Section 5(b) has been described as a "hot pursuit" arrest.

Turning to valid warrantless searches, they are limited to the following: (1) customs searches; (2) search of moving vehicles; (3) seizure of evidence

in plain view; (4) consent searches; 33 (5) a search incidental to a lawful arrest; 34 and (6) a "stop and frisk." 35

In the instant petition, the trial court validated the warrantless search as a "stop and frisk" with "the seizure of the grenade from the accused [as an

appropriate incident to his arrest," hence necessitating a brief discussion on the nature of these exceptions to the warrant requirement.

At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a search incidental to a lawful arrest. These two types

of warrantless searches differ in terms of the requisite quantum of proof before they may be validly effected and in their allowable scope.

In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search, the legality of the arrest is

questioned in a large majority of these cases, e.g., whether an arrest was merely used as a pretext for conducting a search. 36 In this instance, the

law requires that there first be a lawful arrest before a search can be made — the process cannot be reversed. 37

At bottom, assuming a valid

arrest, the arresting officer may search the person of the arrestee and the area within which the latter may reach for a weapon or for evidence to

destroy, and seize any money or property found which was used in the commission of the crime, or the fruit of the crime, or that which may be

used as evidence, or which might furnish the arrestee with the means of escaping or committing violence. 38

Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in light of the lack of personal knowledge on the

part of Yu, the arresting officer, or an overt physical act, on the part of petitioner, indicating that a crime had just been committed, was being

committed or was going to be committed.

Having thus shown the invalidity of the warrantless arrest in this case, plainly, the search conducted on petitioner could not have been one

incidental to a lawful arrest.

We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited protective search of outer clothing for weapons," as

laid down in Terry, thus:

We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of

his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently

dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable

inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others'

safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer

clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable

search under the Fourth Amendment . . . 39

Other notable points of Terry are that while probable cause is not required to conduct a "stop and frisk," 40 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. 41 Finally, a "stop-and-frisk"

serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a

police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating

possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit

the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could

unexpectedly and fatally be used against the police officer.

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

First, we harbor grave doubts as to Yu's claim that petitioner was a member of the group which attempted to bomb Plaza Miranda two days earlier.

This claim is neither supported by any police report or record nor corroborated by any other police officer who allegedly chased that group. Aside

from impairing Yu's credibility as a witness, this likewise diminishes the probability that a genuine reason existed so as to arrest and search

petitioner. If only to further tarnish the credibility of Yu's testimony, contrary to his claim that petitioner and his companions had to be chased

before being apprehended, the affidavit of arrest (Exh. "A") expressly declares otherwise, i.e., upon arrival of five (5) other police officers,

petitioner and his companions were "immediately collared."

Second, there was nothing in petitioner's behavior or conduct which could have reasonably elicited even mere suspicion other than that his eyes

were "moving very fast" — an observation which leaves us incredulous since Yu and his teammates were nowhere near petitioner and it was

already 6:30 p.m., thus presumably dusk. Petitioner and his companions were merely standing at the corner and were not creating any commotion

or trouble, as Yu explicitly declared on cross-examination:

Q And what were they doing?

A They were merely standing.

Q You are sure of that?

A Yes, sir.

Q And when you saw them standing, there were nothing or they did not create any commotion.

A None, sir.

Q Neither did you see them create commotion?

A None, sir. 42

Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly weapon. None was visible to Yu, for as

he admitted, the alleged grenade was "discovered" "inside the front waistline" of petitioner, and from all indications as to the distance between Yu

and petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not have been visible to Yu. In fact, as noted by the

trial court:

When the policemen approached the accused and his companions, they were not yet aware that a handgrenade was tucked

inside his waistline. They did not see any bulging object in [sic] his person. 43

What is unequivocal then in this case are blatant violations of petitioner's rights solemnly guaranteed in Sections 2 and 12(1) of Article III of the

Constitution.

WHEREFORE, the challenged decision of the Seventeenth Division of the Court of Appeals in CA-G.R. CR No. 15988 is SET ASIDE for lack of

jurisdiction on the part of said Court and, on ground of reasonable doubt, the decision of 10 February 1994 of Branch 5 of the Regional Trial Court

of Manila is REVERSED and petitioner SAMMY MALACAT y MANDAR is hereby ACQUITTED and ORDERED immediately released from detention,

unless his further detention is justified for any other lawful cause.

Costs de oficio.

SO ORDERED.

G.R. No. 129296 September 25, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

ABE VALDEZ y DELA CRUZ, accused-appellant.

D E C I S I O N

QUISUMBING, J.:

For automatic review is the decision1 promulgated on February 18, 1997, by the Regional Trial Court of Bayombong, Nueva Vizcaya, Branch 27, in

Criminal Case No. 3105. It found appellant Abe Valdez y Dela Cruz guilty beyond reasonable doubt for violating Section 9 of the Dangerous Drugs

Act of 1972 (R.A. No. 6425), as amended by R.A. No. 7659. He was sentenced to suffer the penalty of death by lethal injection.

In an Information dated September 26, 1996, appellant was charged as follows:"That on or about September 25, 1996, at Sitio Bulan, Barangay

Sawmill, Municipality of Villaverde, Province of Nueva Vizcaya, Philippines, and within the jurisdiction of this Honorable Court, the above-named

accused, who was caught in flagrante delicto and without authority of law, did then and there wilfully (sic), unlawfully and feloniously plant,

cultivate and culture seven (7) fully grown marijuana plants known as Indian Hemp weighing 2.194 kilos, from which dangerous drugs maybe (sic)

manufactured or derived, to the damage and prejudice of the government of the Republic of the Philippines.

"That the property where the said seven (7) fully grown marijuana plants were planted, cultivated and cultured shall be confiscated and escheated

in favor of the government.

"CONTRARY TO LAW."2

On November 15, 1996, appellant was arraigned and, with assistance of counsel, pleaded not guilty to the charge. Trial on the merits then ensued.

The first witness for the prosecution was SPO3 Marcelo Tipay, a member of the police force of Villaverde, Nueva Vizcaya. He testified that at

around 10:15 a.m. of September 24, 1996, he received a tip from an unnamed informer about the presence of a marijuana plantation, allegedly

owned by appellant at Sitio Bulan, Ibung, Villaverde, Nueva Vizcaya.3 The prohibited plants were allegedly planted close to appellant's hut. Police

Inspector Alejandro R. Parungao, Chief of Police of Villaverde, Nueva Vizcaya then formed a reaction team from his operatives to verify the report.

The team was composed of SPO3 Marcelo M. Tipay, SPO2 Noel V. Libunao, SPO2 Pedro S. Morales, SPO1 Romulo G. Tobias and PO2 Alfelmer I.

Balut. Inspector Parungao gave them specific instructions to "uproot said marijuana plants and arrest the cultivator of same."4

At approximately 5:00 o'clock A.M. the following day, said police team, accompanied by their informer, left for the site where the marijuana plants

were allegedly being grown. After a three-hour, uphill trek from the nearest barangay road, the police operatives arrived at the place pinpointed by

their informant. The police found appellant alone in his nipa hut. They, then, proceeded to look around the area where appellant had his kaingin

and saw seven (7) five-foot high, flowering marijuana plants in two rows, approximately 25 meters from appellant's hut.5 PO2 Balut asked appellant

who owned the prohibited plants and, according to Balut, the latter admitted that they were his.6 The police uprooted the seven marijuana plants,

which weighed 2.194 kilograms.7 The police took photos of appellant standing beside the cannabis plants.8 Appellant was then arrested. One of the

plants, weighing 1.090 kilograms, was sent to the Philippine National Police Crime Laboratory in Bayombong, Nueva Vizcaya for analysis.9 Inspector

Prevy Fabros Luwis, the Crime Laboratory forensic analyst, testified that upon microscopic examination of said plant, she found cystolitic hairs

containing calcium carbonate, a positive indication for marijuana.10

She next conducted a chemical examination, the results of which confirmed her

initial impressions. She found as follows:

"SPECIMEN SUBMITTED: Exh "A" - 1.090 grams of uprooted suspected marijuana plant placed inside a white sack with markings.

x x x

"FINDINGS: Qualitative examination conducted on the above stated specimen gave POSITIVE result to the test for Marijuana, a prohibited drug."11

The prosecution also presented a certification from the Department of Environment and Natural Resources that the land cultivated by appellant,

on which the growing marijuana plants were found, was Lot 3224 of Timberland Block B, which formed part of the Integrated Social Forestry Area

in Villaverde, Nueva Vizcaya.12 This lot was part of the public domain. Appellant was acknowledged in the certification as the occupant of the lot,

but no Certificate of Stewardship had yet been issued in his favor.13

As its sole witness, the defense presented appellant. He testified that at around 10:00 o'clock A.M., September 25, 1996, he was weeding his

vegetable farm in Sitio Bulan when he was called by a person whose identity he does not know. He was asked to go with the latter to "see

something."14 This unknown person then brought appellant to the place where the marijuana plants were found, approximately 100 meters away

from his nipa hut.15 Five armed policemen were present and they made him stand in front of the hemp plants. He was then asked if he knew

anything about the marijuana growing there. When he denied any knowledge thereof, SPO2 Libunao poked a fist at him and told him to admit

ownership of the plants.16 Appellant was so nervous and afraid that he admitted owning the marijuana.17

The police then took a photo of him standing in front of one of the marijuana plants. He was then made to uproot five of the cannabis plants, and

bring them to his hut, where another photo was taken of him standing next to a bundle of uprooted marijuana plants.18

The police team then

brought him to the police station at Villaverde. On the way, a certain Kiko Pascua, a barangay peace officer of Barangay Sawmill, accompanied the

police officers. Pascua, who bore a grudge against him, because of his refusal to participate in the former's illegal logging activities, threatened him

to admit owning the marijuana, otherwise he would "be put in a bad situation."19 At the police headquarters, appellant reiterated that he knew

nothing about the marijuana plants seized by the police.20

On cross-examination, appellant declared that there were ten other houses around the vicinity of his kaingin, the nearest house being 100 meters

away.21 The latter house belonged to one Carlito (Lito) Pascua, an uncle of the barangay peace officer who had a grudge against him. The spot

where the marijuana plants were found was located between his house and Carlito Pascua's.22

The prosecution presented SPO3 Tipay as its rebuttal witness. His testimony was offered to rebut appellant's claim that the marijuana plants were

not planted in the lot he was cultivating.23 Tipay presented a sketch he made,24 which showed the location of marijuana plants in relation to the old

and new nipa huts of appellant, as well as the closest neighbor. According to Tipay, the marijuana plot was located 40 meters away from the old

hut of Valdez and 250 meters distant from the hut of Carlito Pascua.25 Tipay admitted on cross-examination that no surveyor accompanied him

when he made the measurements.26 He further stated that his basis for claiming that appellant was the owner or planter of the seized plants was

the information given him by the police informer and the proximity of appellant's hut to the location of said plants.27

Finding appellant's defense insipid, the trial court held appellant liable as charged for cultivation and ownership of marijuana plants as follows:

"WHEREFORE, finding the accused GUILTY beyond reasonable doubt of cultivating marijuana plants punishable under section 9 of the Dangerous

Drugs Act of 1972, as amended, accused is hereby sentenced to death by lethal injection. Costs against the accused.

"SO ORDERED."28

Appellant assigns the following errors for our consideration:

I

THE TRIAL COURT GRAVELY ERRED IN ADMITTING AS EVIDENCE THE SEVEN (7) MARIJUANA PLANTS DESPITE THEIR INADMISSIBILITY

BEING PRODUCTS OF AN ILLEGAL SEARCH.

II

THE TRIAL COURT GRAVELY ERRED IN CONVICTING APPELLANT OF VIOLATION OF SECTION 9, REPUBLIC ACT NO. 6425 DESPITE THE

INADMISSIBILITY OF THE CORPUS DELICTI AND THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.

III

THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE SUPREME PENALTY OF DEATH UPON APPELLANT DESPITE FAILURE OF THE

PROSECUTION TO PROVE THAT THE LAND WHERE THE MARIJUANA PLANTS WERE PLANTED IS A PUBLIC LAND ON THE ASSUMPTION

THAT INDEED APPELLANT PLANTED THE SUBJECT MARIJUANA.29

Simply stated, the issues are:

(1) Was the search and seizure of the marijuana plants in the present case lawful?

(2) Were the seized plants admissible in evidence against the accused?

(3) Has the prosecution proved appellant's guilt beyond reasonable doubt?

(4) Is the sentence of death by lethal injection correct?

The first and second issues will be jointly discussed because they are interrelated.

Appellant contends that there was unlawful search. First, the records show that the law enforcers had more than ample time to secure a search

warrant. Second, that the marijuana plants were found in an unfenced lot does not remove appellant from the mantle of protection against

unreasonable searches and seizures. He relies on the ruling of the US Supreme Court in Terry v. Ohio, 392 US 1, 20 L. Ed 2d 898, 88 S. Ct. 1868

(1968), to the effect that the protection against unreasonable government intrusion protects people, not places.

For the appellee, the Office of the Solicitor General argues that the records clearly show that there was no search made by the police team, in the

first place. The OSG points out that the marijuana plants in question were grown in an unfenced lot and as each grew about five (5) feet tall, they

were visible from afar, and were, in fact, immediately spotted by the police officers when they reached the site. The seized marijuana plants were,

thus, in plain view of the police officers. The instant case must, therefore, be treated as a warrantless lawful search under the "plain view" doctrine.

The court a quo upheld the validity of the search and confiscation made by the police team on the finding that:

"...It seems there was no need for any search warrant. The policemen went to the plantation site merely to make a verification. When they found

the said plants, it was too much to expect them to apply for a search warrant. In view of the remoteness of the plantation site (they had to walk for

six hours back and forth) and the dangers lurking in the area if they stayed overnight, they had a valid reason to confiscate the said plants upon

discovery without any search warrant. Moreover, the evidence shows that the lot was not legally occupied by the accused and there was no fence

which evinced the occupant's desire to keep trespassers out. There was, therefore, no privacy to protect, hence, no search warrant was

required."30

The Constitution31 lays down the general rule that a search and seizure must be carried on the strength of a judicial warrant. Otherwise, the search

and seizure is deemed "unreasonable." Evidence procured on the occasion of an unreasonable search and seizure is deemed tainted for being the

proverbial fruit of a poisonous tree and should be excluded.32 Such evidence shall be inadmissible in evidence for any purpose in any proceeding.33

In the instant case, there was no search warrant issued by a judge after personal determination of the existence of probable cause. From the

declarations of the police officers themselves, it is clear that they had at least one (1) day to obtain a warrant to search appellant's farm. Their

informant had revealed his name to them. The place where the cannabis plants were planted was pinpointed. From the information in their

possession, they could have convinced a judge that there was probable cause to justify the issuance of a warrant. But they did not. Instead, they

uprooted the plants and apprehended the accused on the excuse that the trip was a good six hours and inconvenient to them. We need not

underscore that the protection against illegal search and seizure is constitutionally mandated and only under specific instances are searches

allowed without warrants.34 The mantle of protection extended by the Bill of Rights covers both innocent and guilty alike against any form of high-

handedness of law enforcers, regardless of the praiseworthiness of their intentions.

We find no reason to subscribe to Solicitor General's contention that we apply the "plain view" doctrine. For the doctrine to apply, the following

elements must be present:

(a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties;

(b) the evidence was inadvertently discovered by the police who have the right to be where they are; and

(c) the evidence must be immediately apparent; and

(d) plain view justified mere seizure of evidence without further search.35

In the instant case, recall that PO2 Balut testified that they first located the marijuana plants before appellant was arrested without a warrant.36

Hence, there was no valid warrantless arrest which preceded the search of appellant's premises. Note further that the police team was dispatched

to appellant's kaingin precisely to search for and uproot the prohibited flora. The seizure of evidence in "plain view" applies only where the police

officer is not searching for evidence against the accused, but inadvertently comes across an incriminating object.37 Clearly, their discovery of the

cannabis plants was not inadvertent. We also note the testimony of SPO2 Tipay that upon arriving at the area, they first had to "look around the

area" before they could spot the illegal plants.38 Patently, the seized marijuana plants were not "immediately apparent" and a "further search" was

needed. In sum, the marijuana plants in question were not in "plain view" or "open to eye and hand." The "plain view" doctrine, thus, cannot be

made to apply.

Nor can we sustain the trial court's conclusion that just because the marijuana plants were found in an unfenced lot, appellant could not invoke the

protection afforded by the Charter against unreasonable searches by agents of the State. The right against unreasonable searches and seizures is

the immunity of one's person, which includes his residence, his papers, and other possessions.39 The guarantee refers to "the right of personal

security"40 of the individual. As appellant correctly points out, what is sought to be protected against the State's unlawful intrusion are persons, not

places.41 To conclude otherwise would not only mean swimming against the stream, it would also lead to the absurd logic that for a person to be

immune against unreasonable searches and seizures, he must be in his home or office, within a fenced yard or a private place. The Bill of Rights

belongs as much to the person in the street as to the individual in the sanctuary of his bedroom.

We therefore hold, with respect to the first issue, that the confiscated plants were evidently obtained during an illegal search and seizure. As to the

second issue, which involves the admissibility of the marijuana plants as evidence for the prosecution, we find that said plants cannot, as products

of an unlawful search and seizure, be used as evidence against appellant. They are fruits of the proverbial poisoned tree. It was, therefore, a

reversible error on the part of the court a quo to have admitted and relied upon the seized marijuana plants as evidence to convict appellant.

We now proceed to the third issue, which revolves around the sufficiency of the prosecution's evidence to prove appellant's guilt. Having declared

the seized marijuana plants inadmissible in evidence against appellant, we must now address the question of whether the remaining evidence for

the prosecution suffices to convict appellant?

In convicting appellant, the trial court likewise relied on the testimony of the police officers to the effect that appellant admitted ownership of the

marijuana when he was asked who planted them. It made the following observation:

"It may be true that the admission to the police by the accused that he planted the marijuana plants was made in the absence of any independent

and competent counsel. But the accused was not, at the time of police verification; under custodial investigation. His admission is, therefore,

admissible in evidence and not violative of the constitutional fiat that admission given during custodial investigation is not admissible if given

without any counsel."42

Appellant now argues that his admission of ownership of the marijuana plants in question cannot be used against him for being violative of his right

to counsel during the police investigation. Hence, it was error for the trial court to have relied upon said admission of ownership. He submits that

the investigation conducted by the police officers was not a general inquiry, but was meant to elicit information on the ownership of the marijuana

plants. Appellant theorizes that since the investigation had narrowed down to him, competent and independent counsel should have assisted him,

when the police sought information from him regarding the ownership of the prohibited plants. Appellant claims the presumption of regularity of

duty of officers cannot be made to apply to his purported voluntarily confession of ownership of the marijuana plants. Nor can it override his

constitutional right to counsel during investigation.

The Office of the Solicitor General believes otherwise. The OSG avers that appellant was not yet under custodial investigation when he admitted to

the police that he owned the marijuana plants. His right to competent and independent counsel, accordingly, had not yet attached. Moreover,

appellant’s failure to impute any false motive for the police officers to falsely accuse him indicates that the presumption of regularity in the

performance of official duties by police officers was not sufficiently rebutted.

The Constitution plainly declares that any person under investigation for the commission of an offense shall have the right: (1) to remain silent; (2)

to have competent and independent counsel preferably of his own choice; and (3) to be informed of such rights. These rights cannot be waived

except in writing and in the presence of counsel.43 An investigation begins when it is no longer a general inquiry but starts to focus on a particular

person as a suspect, i.e., when the police investigator starts interrogating or exacting a confession from the suspect in connection with an alleged

offense.44

The moment the police try to elicit admissions or confessions or even plain information from a person suspected of having committed an

offense, he should at that juncture be assisted by counsel, unless he waives the right in writing and in the presence of counsel.45

In the instant case we find that, from the start, a tipster had furnished the police appellant's name as well as the location of appellant's farm, where

the marijuana plants were allegedly being grown. While the police operation was supposedly meant to merely "verify" said information, the police

chief had likewise issued instructions to arrest appellant as a suspected marijuana cultivator. Thus, at the time the police talked to appellant in his

farm, the latter was already under investigation as a suspect. The questioning by the police was no longer a general inquiry.46

Under cross-examination, PO2 Balut stated, he "did not yet admit that he is the cultivator of that marijuana so we just asked him and I think there

is no need to inform (him of) his constitutional rights because we are just asking him..."47 In trying to elicit information from appellant, the police

was already investigating appellant as a suspect. At this point, he was already under custodial investigation and had a right to counsel even if he

had not yet been arrested. Custodial investigation is "questioning initiated by law enforcement officers after a person has been taken into custody

or otherwise deprived of his freedom of action in any significant way."48 As a suspect, two armed policemen interrogated appellant. Behind his

inquisitors were a barangay peace officer and three other armed policemen.49 All had been dispatched to arrest him.50 From these circumstances,

we may infer that appellant had already been deprived of his freedom of action in a significant way, even before the actual arrest. Note that even

before he was arrested, the police made him incriminatingly pose for photos in front of the marijuana plants.

Moreover, we find appellant's extrajudicial confession flawed with respect to its admissibility. For a confession to be admissible, it must satisfy the

following requirements: (1) it must be voluntary; (2) it must be made with the assistance of competent and independent counsel; (3) it must be

express; and (4) it must be in writing.51 The records show that the admission by appellant was verbal. It was also uncounselled. A verbal admission

allegedly made by an accused during the investigation, without the assistance of counsel at the time of his arrest and even before his formal

investigation is not only inadmissible for being violative of the right to counsel during criminal investigations, it is also hearsay.52 Even if the

confession or admission were "gospel truth", if it was made without assistance of counsel and without a valid waiver of such assistance, the

confession is inadmissible in evidence, regardless of the absence of coercion or even if it had been voluntarily given.53

It is fundamental in criminal prosecutions that before an accused may be convicted of a crime, the prosecution must establish by proof beyond

reasonable doubt that a crime was committed and that the accused is the author thereof.54 The evidence arrayed against the accused, however,

must not only stand the test of reason,55 it must likewise be credible and competent.56 Competent evidence is "generally admissible" evidence.57

Admissible evidence, in turn, is evidence "of such a character that the court or judge is bound to receive it, that is, allow it to be introduced at

trial."58

In the instant case, the trial court relied on two pieces of probative matter to convict appellant of the offense charged.1âwphi1 These were the

seized marijuana plants, and appellant's purportedly voluntary confession of ownership of said marijuana plants to the police. Other than these

proofs, there was no other evidence presented to link appellant with the offense charged. As earlier discussed, it was error on the trial court's part

to have admitted both of these proofs against the accused and to have relied upon said proofs to convict him. For said evidence is doubly tainted.

First, as earlier pointed out, the seized marijuana plants were obtained in violation of appellant's constitutional rights against unreasonable

searches and seizures. The search and seizure were void ab initio for having been conducted without the requisite judicial warrant. The

prosecution's very own evidence clearly establishes that the police had sufficient time to obtain a warrant. There was no showing of such urgency

or necessity for the warrantless search or the immediate seizure of the marijuana plants subject of this case. To reiterate, said marijuana plants

cannot be utilized to prove appellant's guilt without running afoul of the constitutional guarantees against illegal searches and the inadmissibility of

evidence procured pursuant to an unlawful search and seizure.

Second, the confession of ownership of the marijuana plants, which appellant allegedly made to the police during investigation, is not only hearsay

but also violative of the Bill of Rights. The purported confession was made without the assistance of competent and independent counsel, as

mandated by the Charter. Thus, said confession cannot be used to convict appellant without running afoul of the Constitution's requirement that a

suspect in a criminal investigation must have the services of competent and independent counsel during such investigation.

In sum, both the object evidence and the testimonial evidence as to appellant's voluntary confession of ownership of the prohibited plants relied

upon to prove appellant's guilt failed to meet the test of Constitutional competence.

The Constitution decrees that, "In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved..."59 To justify the

conviction of the accused, the prosecution must adduce that quantum of evidence sufficient to overcome the constitutional presumption of

innocence. The prosecution must stand or fall on its evidence and cannot draw strength from the weakness of the evidence for the accused.60

Absent the required degree of proof of an accused's guilt, he is entitled to an acquittal.61 In this case, the seized marijuana plants linking appellant

to the crime charged are miserably tainted with constitutional infirmities, which render these inadmissible "for any purpose in any proceeding."62

Nor can the confession obtained during the uncounselled investigation be used against appellant, "it being inadmissible in evidence against him."63

Without these proffered but proscribed materials, we find that the prosecution's remaining evidence did not even approximate the quantum of

evidence necessary to warrant appellant's conviction. Hence, the presumption of innocence in his favor stands. Perforce, his acquittal is in order.

In acquitting an appellant, we are not saying that he is lily-white, or pure as driven snow. Rather, we are declaring his innocence because the

prosecution's evidence failed to show his guilt beyond reasonable doubt. For that is what the basic law requires. Where the evidence is insufficient

to overcome the presumption of innocence in favor of the accused, then his "acquittal must follow in faithful obeisance to the fundamental law."64

WHEREFORE, the decision promulgated on February 18, 1997, by the Regional Trial Court of Bayombong, Nueva Vizcaya, Branch 27, in Criminal

Case No. 3105, finding Abe Valdez y Dela Cruz, guilty beyond reasonable doubt of violating Section 9 of the Dangerous Drugs Act of 1972, and

imposing upon him the death penalty, is hereby REVERSED and SET ASIDE for insufficiency of evidence. Appellant is ACQUITTED and ordered

RELEASED immediately from confinement unless held for another lawful cause.

SO ORDERED.

G.R. No. 125754 December 22, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

ZENAIDA BOLASA Y NAKOBOAN and ROBERTO DELOS REYES, accused-appellants.

BELLOSILLO, J.:

An anonymous caller tipped off PO3 Dante Salonga and PO3 Albert Carizon in the early evening of 11 September 1995 that a man and a woman

were repacking prohibited drugs at a certain house in Sta. Brigida St., Karuhatan, Valenzuela, Metro Manila. PO3 Salonga and PO3 Carizon together

with SPO1 Fernando Arenas immediately proceeded to the house of the suspects and parked their car some three hundred (300) meters away.

They walked towards their quarry's lair accompanied this time by their unnamed informer. When they reached the house they "peeped (inside)

through a small window and . . . saw one man and a woman repacking suspected marijuana." 1 They entered the house and introduced themselves

as police officers to the occupants and thereupon confiscated the tea bags and some drug paraphernalia. They arrested the two (2) who turned out

to be the accused Zenaida Bolasa y Nakoboan and Roberto delos Reyes. Subsequent examination of the tea bags by NBI Forensic Chemist Rubie

Calalo confirmed the suspicion that the tea bags contained marijuana.

Zenaida Bolasa and Roberto delos Reyes were thus charged with violation of Sec. 8, Art. II, of RA 6425 otherwise known as The Dangerous Drugs

Act of 1972. Both however denied on the witness stand ownership over the confiscated tea bags and drug implements.

According to Roberto delos Reyes, he and his wife were merely tenants in the house of Zenaida Bolasa and at the time he was arrested he had just

arrived from work. Upon learning that Zenaida was repacking marijuana inside their room, he immediately ordered her to leave. Unfortunately

however it was at that precise moment that police authorities entered and announced their presence. He and Zenaida were then brought to the

Valenzuela Police Station for questioning and subsequently detained.

On the part of Zenaida Bolasa, she narrated that at 7:30 in the evening of 11 September 1995 she was on her way to 9th Avenue, Caloocan City,

where she was working as a waitress. As she was about to leave the house she met a certain "Rico" and conversed with him for some time. She

denied knowing PO3 Carizon and the fact that the latter saw her repacking marijuana inside her house.

The trial court upon finding the version of the prosecution to be more plausible convicted both accused Zenaida Bolasa and Roberto delos Reyes of

the crime charged and sentenced each of them not only to reclusion perpetua but also to pay a fine of P500,000.00. 2

Both accused appealed, although separately, each one represented by a separate counsel.

Maintaining his innocence in this appeal, accused-appellant Roberto delos Reyes insists he had just arrived from work and had, in fact, just entered

his room when he was arrested. Assuming he was indeed repacking marijuana when the police officers arrived, he claims it would have been

inconceivable for them to know what he was doing inside his room considering the height of his window. Significantly, the police officers had to

lean first on the window in order to observe the activities inside the room.

Accused-appellant Zenaida Bolasa meanwhile asserts that the search in her residence was likewise illegal as her arrest preceding it was illegal.

Consequently, the marijuana seized from her could not be properly used as evidence against her. She insists that the trial court should not have

given credence to the testimony of PO3 Albert Carizon as the same was hearsay. According to her and her co-accused delos Reyes, PO3 Carizon was

not among the arresting officers. As such, PO3 Carizon had no personal knowledge regarding the conduct of the arrest and search thus making his

testimony hearsay. Since the prosecution did not present the two (2) arresting officers the version of the prosecution cannot stand on its own.

Bolasa likewise impugns the identity of the items confiscated from her person vis-a-vis those which were submitted for laboratory examination and

charges that the failure of the prosecution to satisfactorily establish the chain of custody over the specimen is damaging to its case.

We sustain the appeal. This case clearly illustrates how constitutional guarantees against illegal arrests and seizures can be violated by overzealous

police officers in the arrest of suspected drug offenders. Thus, after a meticulous evaluation of the evidence at hand, this Court finds itself with no

other recourse but to strike down the process adopted by the prosecution and acquit accused-appellants for insufficiency of evidence and

reasonable doubt.

Sec. 2, Art. III, of the 1987 Constitution provides —

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of

whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon

probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and

the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

The State cannot in a cavalier fashion intrude into the persons of its citizens as well as into their houses, papers and effects. The constitutional

provision sheathes the private individual with an impenetrable armor against unreasonable searches and seizures. It protects the privacy and

sanctity of the person himself against unlawful arrests and other forms of restraint, 3 and prevents him from being irreversibly "cut off from that

domestic security which renders the lives of the most unhappy in some measure agreeable." 4

For sure, this constitutional guarantee is not a blanket prohibition against all searches and seizures as it obviously operates only against searches

and seizures that are "unreasonable." 5 Thus, arrests and seizures in the following instances are not deemed "unreasonable" and are thus allowed

even in the absence of a warrant —

1. Warrantless search incidental to a lawful arrest (Sec. 12, Rule 126 of the Rules of Court and prevailing jurisprudence);

2. Search of evidence in "plain view." The elements are: (a) a prior valid intrusion based on the valid warrantless arrest in which

the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police

who have the right to be where they are; (c) the evidence must be immediately apparent; and, (d) "plain view" justified mere

seizure of evidence without further search.

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. Consented warrantless search;

5. Customs search;

6. Stop and Frisk; and

7. Exigent and emergency circumstances. 6

An arrest is lawful even in the absence of a warrant: (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; 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.

7 A person charged with an offense may be searched for dangerous weapons or anything which may be used as proof of the commission of the

offense. 8

The manner by which accused-appellants were apprehended does not fall under any of the above-enumerated categories. Perforce, their arrest is

illegal. First, the arresting officers had no personal knowledge that at the time of their arrest, accused-appellants had just committed, were

committing, or were about to commit a crime. Second, the arresting officers had no personal knowledge that a crime was committed nor did they

have any reasonable ground to believe that accused-appellants committed it. Third, accused-appellants were not prisoners who have escaped from

a penal establishment.

Neither can it be said that the objects were seized in plain view. First, there was no valid intrusion. As already discussed, accused-appellants were

illegally arrested. Second, the evidence, i.e., the tea bags later on found to contain marijuana, was not inadvertently discovered. The police officers

intentionally peeped first through the window before they saw and ascertained the activities of accused-appellants inside the room. In like manner,

the search cannot be categorized as a search of a moving vehicle, a consented warrantless search, a customs search, or a stop and frisk; it cannot

even fall under exigent and emergency circumstances, for the evidence at hand is bereft of any such showing.

On the contrary, it indicates that the apprehending officers should have conducted first a surveillance considering that the identities and address of

the suspected culprits were already ascertained. After conducting the surveillance and determining the existence of probable cause for arresting

accused-appellants, they should have secured a search warrant prior to effecting a valid arrest and seizure. The arrest being illegal ab initio, the

accompanying search was likewise illegal. Every evidence thus obtained during the illegal search cannot be used against accused-appellants; 9

hence, their acquittal must follow in faithful obeisance to the fundamental law.

WHEREFORE, the 12 July 1996 Decision of the Regional Trial Court finding accused-appellants Zenaida Bolasa y Nakoboan and Roberto delos Reyes

guilty of violating Sec. 8, Art. II, of RA 6425 is REVERSED and SET ASIDE for insufficiency of evidence and on reasonable doubt; consequently, both

are ACQUITTED and ordered RELEASED immediately from confinement unless held for another lawful cause.

Their Jailers — the Correctional Institution for Women, Mandaluyong City, for Zenaida Bolasa y Nakoboan, and the Bureau of Corrections,

Muntinlupa City, for Roberto delos Reyes — are DIRECTED to implement this Decision immediately and to report to this Court within five (5) days

from receipt hereof their compliance herewith WITHOUT DELAY.

SO ORDERED.

G.R. No. 81561 January 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee

vs.

ANDRE MARTI, accused-appellant.

The Solicitor General for plaintiff-appellee.

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

BIDIN, J.:p

This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional Trial Court, Branch XLIX) convicting accused-appellant

of violation of Section 21 (b), Article IV in relation to Section 4, Article 11 and Section 2 (e) (i), Article 1 of Republic Act 6425, as amended, otherwise

known as the Dangerous Drugs Act.

The facts as summarized in the brief of the prosecution are as follows:

On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law wife, Shirley Reyes, went to the booth

of the "Manila Packing and Export Forwarders" in the Pistang Pilipino Complex, Ermita, Manila, carrying with them four (4) gift

wrapped packages. Anita Reyes (the proprietress and no relation to Shirley Reyes) attended to them. The appellant informed

Anita Reyes that he was sending the packages to a friend in Zurich, Switzerland. Appellant filled up the contract necessary for

the transaction, writing therein his name, passport number, the date of shipment and the name and address of the consignee,

namely, "WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)

Anita Reyes then asked the appellant if she could examine and inspect the packages. Appellant, however, refused, assuring her

that the packages simply contained books, cigars, and gloves and were gifts to his friend in Zurich. In view of appellant's

representation, Anita Reyes no longer insisted on inspecting the packages. The four (4) packages were then placed inside a

brown corrugated box one by two feet in size (1' x 2'). Styro-foam was placed at the bottom and on top of the packages before

the box was sealed with masking tape, thus making the box ready for shipment (Decision, p. 8).

Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts, Mr. Job Reyes (proprietor) and husband of

Anita (Reyes), following standard operating procedure, opened the boxes for final inspection. When he opened appellant's box, a

peculiar odor emitted therefrom. His curiousity aroused, he squeezed one of the bundles allegedly containing gloves and felt

dried leaves inside. Opening one of the bundles, he pulled out a cellophane wrapper protruding from the opening of one of the

gloves. He made an opening on one of the cellophane wrappers and took several grams of the contents thereof (tsn, pp. 29-30,

October 6, 1987; Emphasis supplied).

Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a laboratory examination of the

samples he extracted from the cellophane wrapper (tsn, pp. 5-6, October 6, 1987).

He brought the letter and a sample of appellant's shipment to the Narcotics Section of the National Bureau of Investigation

(NBI), at about 1:30 o'clock in the afternoon of that date, i.e., August 14, 1987. He was interviewed by the Chief of Narcotics

Section. Job Reyes informed the NBI that the rest of the shipment was still in his office. Therefore, Job Reyes and three (3) NBI

agents, and a photographer, went to the Reyes' office at Ermita, Manila (tsn, p. 30, October 6, 1987).

Job Reyes brought out the box in which appellant's packages were placed and, in the presence of the NBI agents, opened the top

flaps, removed the styro-foam and took out the cellophane wrappers from inside the gloves. Dried marijuana leaves were found

to have been contained inside the cellophane wrappers (tsn, p. 38, October 6, 1987; Emphasis supplied).

The package which allegedly contained books was likewise opened by Job Reyes. He discovered that the package contained

bricks or cake-like dried marijuana leaves. The package which allegedly contained tabacalera cigars was also opened. It turned

out that dried marijuana leaves were neatly stocked underneath the cigars (tsn, p. 39, October 6, 1987).

The NBI agents made an inventory and took charge of the box and of the contents thereof, after signing a "Receipt"

acknowledging custody of the said effects (tsn, pp. 2-3, October 7, 1987).

Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in his passport being the Manila Central Post Office,

the agents requested assistance from the latter's Chief Security. On August 27, 1987, appellant, while claiming his mail at the Central Post Office,

was invited by the NBI to shed light on the attempted shipment of the seized dried leaves. On the same day the Narcotics Section of the NBI

submitted the dried leaves to the Forensic Chemistry Section for laboratory examination. It turned out that the dried leaves were marijuana

flowering tops as certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).

Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known as the Dangerous Drugs Act.

After trial, the court a quo rendered the assailed decision.

In this appeal, accused/appellant assigns the following errors, to wit:

THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY SEARCHED AND SEIZED OBJECTS CONTAINED IN THE

FOUR PARCELS.

THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE UNDISPUTED FACT THAT HIS RIGHTS UNDER THE

CONSTITUTION WHILE UNDER CUSTODIAL PROCEEDINGS WERE NOT OBSERVED.

THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION OF THE APPELLANT ON HOW THE FOUR PARCELS

CAME INTO HIS POSSESSION (Appellant's Brief, p. 1; Rollo, p. 55)

1. Appellant contends that the evidence subject of the imputed offense had been obtained in violation of his constitutional rights against

unreasonable search and seizure and privacy of communication (Sec. 2 and 3, Art. III, Constitution) and therefore argues that the same should be

held inadmissible in evidence (Sec. 3 (2), Art. III).

Sections 2 and 3, Article III of the Constitution provide:

Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and

seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue

except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the

complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things

to be seized.

Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when

public safety or order requires otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in the 1935 Charter which, worded as

follows:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures

shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination

under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be

searched, and the persons or things to be seized. (Sec. 1 [3], Article III)

was in turn derived almost verbatim from the Fourth Amendment ** to the United States Constitution. As such, the Court may turn to the

pronouncements of the United States Federal Supreme Court and State Appellate Courts which are considered doctrinal in this jurisdiction.

Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]),

this Court, in Stonehill v. Diokno (20 SCRA 383 [1967]), declared as inadmissible any evidence obtained by virtue of a defective search and seizure

warrant, abandoning in the process the ruling earlier adopted in Moncado v. People's Court (80 Phil. 1 [1948]) wherein the admissibility of evidence

was not affected by the illegality of its seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is carried over up to

the present with the advent of the 1987 Constitution.

In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the admissibility of evidence obtained in violation of

the constitutional safeguard against unreasonable searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de

Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA 687 [1987]; See also Salazar v. Hon. Achacoso, et al.,

GR No. 81510, March 14, 1990).

It must be noted, however, that in all those cases adverted to, the evidence so obtained were invariably procured by the State acting through the

medium of its law enforcers or other authorized government agencies.

On the other hand, the case at bar assumes a peculiar character since the evidence sought to be excluded was primarily discovered and obtained

by a private person, acting in a private capacity and without the intervention and participation of State authorities. Under the circumstances, can

accused/appellant validly claim that his constitutional right against unreasonable searches and seizure has been violated? Stated otherwise, may an

act of a private individual, allegedly in violation of appellant's constitutional rights, be invoked against the State?

We hold in the negative. In the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked against the

State.

As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:

1. This constitutional right (against unreasonable search and seizure) refers to the immunity of one's person, whether citizen or

alien, from interference by government, included in which is his residence, his papers, and other possessions. . . .

. . . There the state, however powerful, does not as such have the access except under the circumstances above noted, for in

the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by

government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life . . . . (Cf.

Schermerber v. California, 384 US 757 [1966] and Boyd v. United States, 116 US 616 [1886]; Emphasis supplied).

In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in construing the right against unreasonable searches and

seizures declared that:

(t)he Fourth Amendment gives protection against unlawful searches and seizures, and as shown in previous cases, its protection

applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of

sovereign authority, and was not intended to be a limitation upon other than governmental agencies; as against such authority

it was the purpose of the Fourth Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the

possession of his property, subject to the right of seizure by process duly served.

The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant who searched the automobile to ascertain the

owner thereof found marijuana instead, without the knowledge and participation of police authorities, was declared admissible in prosecution for

illegal possession of narcotics.

And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and seizure clauses are restraints upon the government

and its agents, not upon private individuals (citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d

903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957).

Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:

The search of which appellant complains, however, was made by a private citizen — the owner of a motel in which appellant

stayed overnight and in which he left behind a travel case containing the evidence*** complained of. The search was made on

the motel owner's own initiative. Because of it, he became suspicious, called the local police, informed them of the bag's

contents, and made it available to the authorities.

The fourth amendment and the case law applying it do not require exclusion of evidence obtained through a search by a private

citizen. Rather, the amendment only proscribes governmental action."

The contraband in the case at bar having come into possession of the Government without the latter transgressing appellant's rights against

unreasonable search and seizure, the Court sees no cogent reason why the same should not be admitted against him in the prosecution of the

offense charged.

Appellant, however, would like this court to believe that NBI agents made an illegal search and seizure of the evidence later on used in prosecuting

the case which resulted in his conviction.

The postulate advanced by accused/appellant needs to be clarified in two days. In both instances, the argument stands to fall on its own weight, or

the lack of it.

First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents conducted an illegal search and seizure of the

prohibited merchandise. Records of the case clearly indicate that it was Mr. Job Reyes, the proprietor of the forwarding agency, who made

search/inspection of the packages. Said inspection was reasonable and a standard operating procedure on the part of Mr. Reyes as a precautionary

measure before delivery of packages to the Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original

Records, pp. 119-122; 167-168).

It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of the same to the NBI and later summoned the

agents to his place of business. Thereafter, he opened the parcel containing the rest of the shipment and entrusted the care and custody thereof to

the NBI agents. Clearly, the NBI agents made no search and seizure, much less an illegal one, contrary to the postulate of accused/appellant.

Second, the mere presence of the NBI agents did not convert the reasonable search effected by Reyes into a warrantless search and seizure

proscribed by the Constitution. Merely to observe and look at that which is in plain sight is not a search. Having observed that which is open, where

no trespass has been committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135). Where the contraband articles are identified

without a trespass on the part of the arresting officer, there is not the search that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed.

1202 [1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122 [1968]).

In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was taken into custody of the police at the specific

request of the manager and where the search was initially made by the owner there is no unreasonable search and seizure within the

constitutional meaning of the term.

That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private individuals finds support in the deliberations

of the Constitutional Commission. True, the liberties guaranteed by the fundamental law of the land must always be subject to protection. But

protection against whom? Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the query which he himself posed, as

follows:

First, the general reflections. The protection of fundamental liberties in the essence of constitutional democracy. Protection

against whom? Protection against the state. The Bill of Rights governs the relationship between the individual and the state. Its

concern is not the relation between individuals, between a private individual and other individuals. What the Bill of Rights does

is to declare some forbidden zones in the private sphere inaccessible to any power holder. (Sponsorship Speech of Commissioner

Bernas , Record of the Constitutional Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied)

The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only against the government and its

agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and

unreasonable exercise of power is imposed.

If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to pass the test of constitutionality.

However, if the search is made at the behest or initiative of the proprietor of a private establishment for its own and private purposes, as in the

case at bar, and without the intervention of police authorities, the right against unreasonable search and seizure cannot be invoked for only the act

of private individual, not the law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be extended to

acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government.

Appellant argues, however, that since the provisions of the 1935 Constitution has been modified by the present phraseology found in the 1987

Charter, expressly declaring as inadmissible any evidence obtained in violation of the constitutional prohibition against illegal search and seizure, it

matters not whether the evidence was procured by police authorities or private individuals (Appellant's Brief, p. 8, Rollo, p. 62).

The argument is untenable. For one thing, the constitution, in laying down the principles of the government and fundamental liberties of the

people, does not govern relationships between individuals. Moreover, it must be emphasized that the modifications introduced in the 1987

Constitution (re: Sec. 2, Art. III) relate to the issuance of either a search warrant or warrant of arrest vis-a-vis the responsibility of the judge in the

issuance thereof (See Soliven v. Makasiar, 167 SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987]. The

modifications introduced deviate in no manner as to whom the restriction or inhibition against unreasonable search and seizure is directed against.

The restraint stayed with the State and did not shift to anyone else.

Corolarilly, alleged violations against unreasonable search and seizure may only be invoked against the State by an individual unjustly traduced by

the exercise of sovereign authority. To agree with appellant that an act of a private individual in violation of the Bill of Rights should also be

construed as an act of the State would result in serious legal complications and an absurd interpretation of the constitution.

Similarly, the admissibility of the evidence procured by an individual effected through private seizure equally applies, in pari passu, to the alleged

violation, non-governmental as it is, of appellant's constitutional rights to privacy and communication.

2. In his second assignment of error, appellant contends that the lower court erred in convicting him despite the undisputed fact that his rights

under the constitution while under custodial investigation were not observed.

Again, the contention is without merit, We have carefully examined the records of the case and found nothing to indicate, as an "undisputed fact",

that appellant was not informed of his constitutional rights or that he gave statements without the assistance of counsel. The law enforcers

testified that accused/appellant was informed of his constitutional rights. It is presumed that they have regularly performed their duties (See. 5(m),

Rule 131) and their testimonies should be given full faith and credence, there being no evidence to the contrary. What is clear from the records, on

the other hand, is that appellant refused to give any written statement while under investigation as testified by Atty. Lastimoso of the NBI, Thus:

Fiscal Formoso:

You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here, did you investigate the accused together

with the girl?

WITNESS:

Yes, we have interviewed the accused together with the girl but the accused availed of his constitutional right not to give any

written statement, sir. (TSN, October 8, 1987, p. 62; Original Records, p. 240)

The above testimony of the witness for the prosecution was not contradicted by the defense on cross-examination. As borne out by the records,

neither was there any proof by the defense that appellant gave uncounselled confession while being investigated. What is more, we have examined

the assailed judgment of the trial court and nowhere is there any reference made to the testimony of appellant while under custodial investigation

which was utilized in the finding of conviction. Appellant's second assignment of error is therefore misplaced.

3. Coming now to appellant's third assignment of error, appellant would like us to believe that he was not the owner of the packages which

contained prohibited drugs but rather a certain Michael, a German national, whom appellant met in a pub along Ermita, Manila: that in the course

of their 30-minute conversation, Michael requested him to ship the packages and gave him P2,000.00 for the cost of the shipment since the

German national was about to leave the country the next day (October 15, 1987, TSN, pp. 2-10).

Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-serving and contrary to human experience. It can

easily be fabricated. An acquaintance with a complete stranger struck in half an hour could not have pushed a man to entrust the shipment of four

(4) parcels and shell out P2,000.00 for the purpose and for appellant to readily accede to comply with the undertaking without first ascertaining its

contents. As stated by the trial court, "(a) person would not simply entrust contraband and of considerable value at that as the marijuana flowering

tops, and the cash amount of P2,000.00 to a complete stranger like the Accused. The Accused, on the other hand, would not simply accept such

undertaking to take custody of the packages and ship the same from a complete stranger on his mere say-so" (Decision, p. 19, Rollo, p. 91). As to

why he readily agreed to do the errand, appellant failed to explain. Denials, if unsubstantiated by clear and convincing evidence, are negative self-

serving evidence which deserve no weight in law and cannot be given greater evidentiary weight than the testimony of credible witnesses who

testify on affirmative matters (People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237 [1989]).

Appellant's bare denial is even made more suspect considering that, as per records of the Interpol, he was previously convicted of possession of

hashish by the Kleve Court in the Federal Republic of Germany on January 1, 1982 and that the consignee of the frustrated shipment, Walter Fierz,

also a Swiss national, was likewise convicted for drug abuse and is just about an hour's drive from appellant's residence in Zurich, Switzerland (TSN,

October 8, 1987, p. 66; Original Records, p. 244; Decision, p. 21; Rollo, p. 93).

Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself such as the common

experience and observation of mankind can approve as probable under the circumstances (People v. Alto, 26 SCRA 342 [1968], citing Daggers v.

Van Dyke, 37 N.J. Eg. 130; see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123 SCRA 327 [1983]); Castañares v. CA, 92 SCRA 567

[1979]). As records further show, appellant did not even bother to ask Michael's full name, his complete address or passport number. Furthermore,

if indeed, the German national was the owner of the merchandise, appellant should have so indicated in the contract of shipment (Exh. "B",

Original Records, p. 40). On the contrary, appellant signed the contract as the owner and shipper thereof giving more weight to the presumption

that things which a person possesses, or exercises acts of ownership over, are owned by him (Sec. 5 [j], Rule 131). At this point, appellant is

therefore estopped to claim otherwise.

Premises considered, we see no error committed by the trial court in rendering the assailed judgment.

WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of the crime charged is hereby AFFIRMED. No costs.

SO ORDERED.

G.R. No. 143944 July 11, 2002

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

BASHER BONGCARAWAN y MACARAMBON, accused-appellant.

PUNO, J.:

This is an appeal from the Decision1 dated December 27, 1999 of the Regional Trial Court of Iligan City, Branch 06, in Criminal Case No. 06-7542,

finding accused Basher Bongcarawan y Macarambon guilty beyond reasonable doubt of violation of Section 16, Article III of Republic Act No. 64252

as amended, and sentencing him to suffer the penalty of reclusion perpetua, and to pay a fine of Five Hundred Thousand Pesos (P500,000.00)

without subsidiary imprisonment in case of insolvency.1âwphi1.nêt

Accused Basher Bongcarawan y Macarambon was charged in an Information which reads, thus:

"That on or about March 13, 1999, in the City of Iligan, Philippines, and within the jurisdiction of this Honorable Court, the said accused,

without authority of law, did then and there wilfully, unlawfully and feloniously have in his possession, custody and control eight (8)

packs of Methamphetamine Hydrochloride, a regulated drug commonly known as Shabu, weighing approximately 400 grams, without the

corresponding license or prescription.

Contrary to and in violation of Section 16, Article III of RA 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended by RA

7659."3

During the arraignment, the accused pleaded not guilty. Trial ensued.

Evidence for the prosecution shows that on March 11, 1999, an interisland passenger ship, M/V Super Ferry 5, sailed from Manila to Iligan City. At

about 3:00 a.m. on March 13, 1999, the vessel was about to dock at the port of Iligan City when its security officer, Mark Diesmo, received a

complaint from passenger Lorena Canoy about her missing jewelry. Canoy suspected one of her co-passengers at cabin no. 106 as the culprit.

Diesmo and four (4) other members of the vessel security force accompanied Canoy to search for the suspect whom they later found at the

economy section.4 The suspect was identified as the accused, Basher Bongcarawan. The accused was informed of the complaint and was invited to

go back to cabin no. 106. With his consent, he was bodily searched, but no jewelry was found. He was then escorted by two (2) security agents back

to the economy section to get his baggage. The accused took a Samsonite suitcase and brought this back to the cabin. When requested by the

security, the accused opened the suitcase, revealing a brown bag and small plastic packs containing white crystalline substance. Suspecting the

substance to be "shabu," the security personnel immediately reported the matter to the ship captain and took pictures of the accused beside the

suitcase and its contents. They also called the Philippine Coast Guard for assistance.5 At about 6:00 a.m., Lt. Robert Patrimonio, YN Aurelio Estoque,

CD2 Phoudinie Lantao and RM3 Merchardo De Guzman of the Philippine Coast Guard arrived and took custody of the accused and the seized

items--the Samsonite suitcase, a brown bag6 and eight (8) small plastic packs of white crystalline substance.7 When asked about the contraband

articles, the accused explained that he was just requested by a certain Alican "Alex" Macapudi to bring the suitcase to the latter's brother in Iligan

City.8 The accused and the seized items were later turned over by the coast guard to the Presidential Anti-Organized Crime Task Force (PAOCTF).

Chief Inspector Graciano Mijares and his men brought the accused to the PAOCTF Headquarters,9 while the packs of white crystalline substance

were sent to the NBI Regional Office in Cagayan de Oro City for laboratory examination. NBI Forensic Chemist Nicanor Cruz later confirmed the

substance to be methamphetamine hydrochloride, commonly known as "shabu," weighing 399.3266 grams.10

The accused testified and proffered his own version. On March 11, 1999, at about 10:00 p.m., he was in Quiapo, Manila where he met Alican "Alex"

Macapudi, a neighbor who has a store in Marawi City. He was requested by Macapudi to bring a Samsonite suitcase containing sunglasses and

watches to Iligan City, and to give it to Macapudi's brother at the Iligan port. He boarded the M/V Super Ferry 5 on the same night, carrying a big

luggage full of clothes, a small luggage or "maleta" containing the sunglasses and brushes he bought from Manila, and the Samsonite suitcase of

Macapudi.11 He stayed at cabin no. 106. At about 4:00 a.m of March 13, 1999, as the vessel was about to dock at the Iligan port, he took his

baggage and positioned himself at the economy section to be able to disembark ahead of the other passengers. There, he met a friend, Ansari

Ambor. While they were conversing, five (5) members of the vessel security force and a woman whom he recognized as his co-passenger at cabin

no. 106 came and told him that he was suspected of stealing jewelry. He voluntarily went with the group back to cabin no. 106 where he was

frisked. Subsequently, he was asked to get his baggage, so he went back to the economy section and took the big luggage and Macapudi's

Samsonite suitcase. He left the small "maleta" containing sunglasses and brushes for fear that they would be confiscated by the security personnel.

When requested, he voluntarily opened the big luggage, but refused to do the same to the Samsonite suitcase which he claimed was not his and

had a secret combination lock. The security personnel forcibly opened the suitcase and found packs of white crystalline substance inside which

they suspected to be "shabu." They took pictures of him with the merchandise, and asked him to sign a turn over receipt which was later given to

the Philippine Coast Guard, then to the PAOCTF.12

On December 27, 1999, the trial court rendered judgment, the dispositive portion of which reads:

"WHEREFORE, the court finds the accused Basher Bongcarawan y Macarambon GUILTY beyond reasonable doubt as principal of the

offense of violation of Section 16, Art. III, R.A. No. 6425 as amended by R.A. No. 7659 and hereby imposes upon him the penalty of

RECLUSION PERPETUA and a fine of FIVE HUNDRED THOUSAND (P500,000.00) PESOS, without subsidiary imprisonment in case of

insolvency.

Having been under preventive imprisonment since March 13, 1999 until the present, the period of such preventive detention shall be

credited in full in favor of the accused in the service of his sentence.

The 399.3266 grams of methamphetamine hydrochloride or shabu is hereby ordered delivered to the National Bureau of Investigation for

proper disposition.

SO ORDERED."13

Hence, this appeal where the accused raises the following assignment of errors:

"I.

THE COURT A QUO ERRED IN SO HOLDING THAT THE DRUG CONFISCATED IS ADMISSIBLE IN EVIDENCE AGAINST THE

ACCUSED/APPELLANT.

II.

THE COURT A QUO ERRED IN SO HOLDING THAT THE APPELLANT OWNED THE CONFISCATED EVIDENCE AND THEREFORE ADMISSIBLE IN

EVIDENCE AGAINST HIM."14

On the first assignment of error, the accused-appellant contends that the Samsonite suitcase containing the methamphetamine hydrochloride or

"shabu" was forcibly opened and searched without his consent, and hence, in violation of his constitutional right against unreasonable search and

seizure. Any evidence acquired pursuant to such unlawful search and seizure, he claims, is inadmissible in evidence against him. He also contends

that People v. Marti15

is not applicable in this case because a vessel security personnel is deemed to perform the duties of a policeman.

The contentions are devoid of merit.

The right against unreasonable search and seizure is a fundamental right protected by the Constitution.16 Evidence acquired in violation of this right

shall be inadmissible for any purpose in any proceeding.17 Whenever this right is challenged, an individual may choose between invoking the

constitutional protection or waiving his right by giving consent to the search and seizure. It should be stressed, however, that protection is against

transgression committed by the government or its agent. As held by this Court in the case of People v. Marti,18 "[i]n the absence of governmental

interference, liberties guaranteed by the Constitution cannot be invoked against the State."19 The constitutional proscription against unlawful

searches and seizures applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it

could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed.20

In the case before us, the baggage of the accused-appellant was searched by the vessel security personnel. It was only after they found "shabu"

inside the suitcase that they called the Philippine Coast Guard for assistance. The search and seizure of the suitcase and the contraband items was

therefore carried out without government intervention, and hence, the constitutional protection against unreasonable search and seizure does not

apply.

There is no merit in the contention of the accused-appellant that the search and seizure performed by the vessel security personnel should be

considered as one conducted by the police authorities for like the latter, the former are armed and tasked to maintain peace and order. The vessel

security officer in the case at bar is a private employee and does not discharge any governmental function. In contrast, police officers are agents of

the state tasked with the sovereign function of enforcement of the law. Historically and until now, it is against them and other agents of the state

that the protection against unreasonable searches and seizures may be invoked.

On the second assignment of error, the accused-appellant contends that he is not the owner of the Samsonite suitcase and he had no knowledge

that the same contained "shabu." He submits that without knowledge or intent to possess the dangerous drug, he cannot be convicted of the crime

charged.21

We are not persuaded.

In a prosecution for illegal possession of dangerous drugs, the following facts must be proven beyond reasonable doubt, viz: (1) that the accused is

in possession of the object identified as a prohibited or a regulated drug; (2) that such possession is not authorized by law; and (3) that the accused

freely and consciously possessed the said drug.22 The first two elements were sufficiently proven in this case, and were in fact undisputed. We are

left with the third.

As early as 1910 in the case of United States v. Tan Misa,23 this Court has ruled that to warrant conviction, the possession of dangerous drugs must

be with knowledge of the accused, or that animus possidendi existed together with the possession or control of such articles.24 It has been ruled,

however, that possession of dangerous drugs constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused

in the absence of a satisfactory explanation of such possession.25

Hence, the burden of evidence is shifted to the accused to explain the absence of

knowledge or animus possidendi.26

In this respect, the accused-appellant has utterly failed. His testimony, uncorroborated, self-serving and incredulous, was not given credence by the

trial court. We find no reason to disagree. Well-settled is the rule that in the absence of palpable error or grave abuse of discretion on the part of

the trial judge, the trial court's evaluation of the credibility of witnesses will not be disturbed on appeal.27 Moreover, evidence must be credible in

itself to deserve credence and weight in law. In this case, the accused-appellant admits that when he was asked to get his baggage, he knew it

would be inspected.28 Why he got the Samsonite suitcase allegedly not owned by him and which had a combination lock known only to the owner

remains unclear. He also claims that he did not present his small "maleta" for inspection for fear that its contents consisting of expensive

sunglasses and brushes would be confiscated,29 but he brought the Samsonite suitcase which is not his and also contained expensive sunglasses,

and even watches.30

The things in possession of a person are presumed by law to be owned by him.31 To overcome this presumption, it is necessary to present clear and

convincing evidence to the contrary. In this case, the accused points to a certain Alican "Alex" Macapudi as the owner of the contraband, but

presented no evidence to support his claim. As aptly observed by the trial judge:

"First, who is Alex Macap[u]di aka Ali[c]an Macap[u]di? Does he really exist or simply a figment of the imagination? He says that Alex

Macap[u]di is a friend and a fellow businessman who has a stall selling sunglasses in Marawi City. But no witnesses were presented to

prove that there is such a living, breathing, flesh and blood person named Alex Macap[u]di who entrusted the Samsonite to the accused.

Surely, if he does exist, he has friends, fellow businessmen and acquaintances who could testify and support the claim of the accused."32

Mere denial of ownership will not suffice especially if, as in the case at bar, it is the keystone of the defense of the accused-appellant. Stories can

easily be fabricated. It will take more than bare-bone allegations to convince this Court that a courier of dangerous drugs is not its owner and has

no knowledge or intent to possess the same.1âwphi1.nêt

WHEREFORE, the decision of the Regional Trial Court of Iligan City, Branch 06, in Criminal Case No. 06-7542, convicting accused-appellant Basher

Bongcarawan of violation of Section 16, Article III of Republic Act No. 6425, as amended, and sentencing him to suffer the penalty of Reclusion

Perpetua and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) without subsidiary imprisonment in case of insolvency, is AFFIRMED.

Costs against the accused-appellant.

SO ORDERED.

G.R. No. 107383 February 20, 1996

CECILIA ZULUETA, petitioner,

vs.

COURT OF APPEALS and ALFREDO MARTIN, respondents.

D E C I S I O N

MENDOZA, J.:

This is a petition to review the decision of the Court of Appeals, affirming the decision of the Regional Trial Court of Manila (Branch X) which

ordered petitioner to return documents and papers taken by her from private respondent's clinic without the latter's knowledge and consent.

The facts are as follows:

Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982, petitioner entered the clinic of her husband, a

doctor of medicine, and in the presence of her mother, a driver and private respondent's secretary, forcibly opened the drawers and cabinet in her

husband's clinic and took 157 documents consisting of private correspondence between Dr. Martin and his alleged paramours, greetings cards,

cancelled checks, diaries, Dr. Martin's passport, and photographs. The documents and papers were seized for use in evidence in a case for legal

separation and for disqualification from the practice of medicine which petitioner had filed against her husband.

Dr. Martin brought this action below for recovery of the documents and papers and for damages against petitioner. The case was filed with the

Regional Trial Court of Manila, Branch X, which, after trial, rendered judgment for private respondent, Dr. Alfredo Martin, declaring him "the

capital/exclusive owner of the properties described in paragraph 3 of plaintiff's Complaint or those further described in the Motion to Return and

Suppress" and ordering Cecilia Zulueta and any person acting in her behalf to a immediately return the properties to Dr. Martin and to pay him

P5,000.00, as nominal damages; P5,000.00, as moral damages and attorney's fees; and to pay the costs of the suit. The writ of preliminary

injunction earlier issued was made final and petitioner Cecilia Zulueta and her attorneys and representatives were enjoined from "using or

submitting/admitting as evidence" the documents and papers in question. On appeal, the Court of Appeals affirmed the decision of the Regional

Trial Court. Hence this petition.

There is no question that the documents and papers in question belong to private respondent, Dr. Alfredo Martin, and that they were taken by his

wife, the herein petitioner, without his knowledge and consent. For that reason, the trial court declared the documents and papers to be

properties of private respondent, ordered petitioner to return them to private respondent and enjoined her from using them in evidence. In

appealing from the decision of the Court of Appeals affirming the trial court's decision, petitioner's only ground is that in Alfredo Martin v. Alfonso

Felix, Jr.,1 this Court ruled that the documents and papers (marked as Annexes A-1 to J-7 of respondent's comment in that case) were admissible in

evidence and, therefore, their use by petitioner's attorney, Alfonso Felix did not constitute malpractice or gross misconduct, For this reason it is

contended that the Court of Appeals erred in affirming the decision of the trial court instead of dismissing private respondent's complaint.

Petitioner's contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among other things, private respondent, Dr. Alfredo

Martin, as complainant in that case, charged that in using the documents in evidence, Atty. Felix, Jr. committed malpractice or gross misconduct

because of the injunctive order of the trial court. In dismissing the complaint against Atty. Felix, Jr., this Court took note of the following defense of

Atty. Felix; Jr. which it found to be "impressed with merit:"2

On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he maintains that:

. . . .

4. When respondent refiled Cecilia's case for legal separation before the Pasig Regional Trial Court, there was admittedly an order of the

Manila Regional Trial Court prohibiting Cecilia from using the documents Annex "A-1 to J-7." On September 6, 1983, however having

appealed the said order to this Court on a petition for certiorari, this Court issued a restraining order on aforesaid date which order

temporarily set aside the order of the trial court. Hence, during the enforceability of this Court's order, respondent's request for

petitioner to admit the genuineness and authenticity of the subject annexes cannot be looked upon as malpractice. Notably, petitioner

Dr. Martin finally admitted the truth and authenticity of the questioned annexes, At that point in time, would it have been malpractice for

respondent to use petitioner's admission as evidence against him in the legal separation case pending in the Regional Trial Court of

Makati? Respondent submits it is not malpractice.

Significantly, petitioner's admission was done not thru his counsel but by Dr. Martin himself under oath, Such verified admission

constitutes an affidavit, and, therefore, receivable in evidence against him. Petitioner became bound by his admission. For Cecilia to avail

herself of her husband's admission and use the same in her action for legal separation cannot be treated as malpractice.

Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a declaration that his use of the documents and papers for

the purpose of securing Dr. Martin's admission as to their genuiness and authenticity did not constitute a violation of the injunctive order of the

trial court. By no means does the decision in that case establish the admissibility of the documents and papers in question.

It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the writ of preliminary injunction issued by the trial

court, it was only because, at the time he used the documents and papers, enforcement of the order of the trial court was temporarily restrained

by this Court. The TRO issued by this Court was eventually lifted as the petition for certiorari filed by petitioner against the trial court's order was

dismissed and, therefore, the prohibition against the further use of the documents and papers became effective again.

Indeed the documents and papers in question are inadmissible in evidence. The constitutional injunction declaring "the privacy of communication

and correspondence [to be] inviolable"3 is no less applicable simply because it is the wife (who thinks herself aggrieved by her husband's infidelity)

who is the party against whom the constitutional provision is to be enforced. The only exception to the prohibition in the Constitution is if there is a

"lawful order [from a] court or when public safety or order requires otherwise, as prescribed by law."4 Any violation of this provision renders the

evidence obtained inadmissible "for any purpose in any proceeding." 5

The intimacies between husband and wife do not justify any one of them in breaking the drawers and cabinets of the other and in ransacking them

for any telltale evidence of marital infidelity. A person, by contracting marriage, does not shed his/her integrity or his right to privacy as an

individual and the constitutional protection is ever available to him or to her.

The law insures absolute freedom of communication between the spouses by making it privileged. Neither husband nor wife may testify for or

against the other without the consent of the affected spouse while the marriage subsists.6 Neither may be examined without the consent of the

other as to any communication received in confidence by one from the other during the marriage, save for specified exceptions.7 But one thing is

freedom of communication; quite another is a compulsion for each one to share what one knows with the other. And this has nothing to do with

the duty of fidelity that each owes to the other.

WHEREFORE, the petition for review is DENIED for lack of merit.

SO ORDERED.

3. OPLE VS. TORRES, July 23, 1998

Puno, J.

Facts:

On December 12, 1996, then President FIDEL V. RAMOS issued Administrative Order No. 308 entitled “ADOPTION OF A NATIONAL

COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM”.

The AO seeks to have all Filipino citizens and foreign residents to have a Population Reference Number (PRN) generated by the National Statistics

Office (NSO) through the use of BIOMETRICS TECHNOLOGY .

The AO was questioned by Senator Ople on the following grounds:

1. The establishment of the PRN without any law is an unconstitutional usurpation of the legislative powers of the Congress of the

Philippines;

2. The appropriation of public funds for the implementation of the said AO is unconstitutional since Congress has the exclusive authority to

appropriate funds for such expenditure; and

3. The AO violates the citizen’s right to privacy protected by the Bill of Rights of the Constitution.

Held:

1. The AO establishes a system of identification that is all-encompassing in scope, affects the life and liberty of every Filipino citizens and

foreign residents and therefore, it is supposed to be a law passed by Congress that implements it, not by an Administrative Order issued by the

President. Administrative Power, which is supposed to be exercised by the President, is concerned with the work of applying policies and enforcing

orders as determined by proper governmental organs. It enables the President to fix a uniform standard of administrative efficiency and check the

official conduct of his agents. Prescinding from the foregoing precepts, AO 308 involves a subject that is not appropriate to be covered by an

Administrative Order. An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative

operation of the government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the

legislative policy. The subject of AO 308 therefore is beyond the power of the President to issue and it is a usurpation of legislative power.

2. The AO likewise violates the right to privacy since its main purpose is to provide a “common reference number to establish a linkage

among concerned agencies through the use of BIOMETRICS TECHNOLOGY. Biometry is the science of the application of statistical methods to

biological facts; a mathematical analysis of a biological data. It is the confirmation of an individual’s identity through a fingerprint, retinal scan,

hand geometry or facial features. Through the PRN, the government offices has the chance of building a huge and formidable information base

through the electronic linkage of the files of every citizen. The data, however, may be gathered for gainful and useful government purposes; but

the existence of this vast reservoir of personal information constitutes a covert invitation to misuse, a temptation that may be too great for some

of our authorities to resist.

Further, the AO does not even tells us in clear and unequivocal terms how these informations gathered shall be handled. It does not provide who

shall control and access the data and under what circumstances and for what purpose. These factors are essential to safeguard the privacy and

guaranty the integrity of the information. The computer linkage gives other government agencies access to the information. YET, THERE ARE NO

CONTROLS TO GUARD AGAINST LEAKAGE OF INFORMATIONS. WHEN THE ACCESS CODE OF THE CONTROL PROGRAMS OF THE PARTICULAR

COMPUTER SYSTEM IS BROKEN, AN INTRUDER, WITHOUT FEAR OF SANCTION OR PENALTY, CAN MAKE USE OF THE DATA FOR WHATEVER

PURPOSE, OR WORSE, MANIPULATE THE DATA STORED WITHIN THE SYSTEM.

AO No. 308 is unconstitutional since it falls short of assuring that personal information gathered about our people will be used only for specified

purposes thereby violating the citizen’s right to privacy.

G.R. No. 135882 June 27, 2001

LOURDES T. MARQUEZ, in her capacity as Branch Manager, UNION BANK OF THE PHILIPPINES, petitioner,

vs.

HONORABLE ANIANO A. DESIERTO, in his capacity as OMBUDSMAN, ANGEL C. MAYOR-ALGO, JR., MARY ANN CORPUZ-MANALAC AND JOSE T. DE

JESUS, JR., in their capacity as Chairman and Members of the Panel, respectively, respondents.

PARDO, J.:

In the petition at bar, petitioner seeks to --

a. Annul and set aside, for having been issued without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of

jurisdiction, respondents' order dated September 7, 1998 in OMB-0-97-0411, In Re: Motion to Cite Lourdes T. Marquez for indirect

contempt, received by counsel of September 9,1998, and their order dated October 14,1998, denying Marquez's motion for

reconsideration dated September 10, 1998, received by counsel on October 20, 1998.

b. Prohibit respondents from implementing their order dated October 14, 1998, in proceeding with the hearing of the motion to cite

Marquez for indirect contempt, through the issuance by this Court of a temporary restraining order and/or preliminary injunction.1

The antecedent facts are as follows:

Sometime in May 1998, petitioner Marquez received an Order from the Ombudsman Aniano A. Desierto dated April 29, 1998, to produce several

bank documents for purposes of inspection in camera relative to various accounts maintained at Union Bank of the Philippines, Julia Vargas Branch,

where petitioner is the branch manager. The accounts to be inspected are Account Nos. 011-37270, 240-020718, 245-30317-3 and 245-30318-1,

involved in a case pending with the Ombudsman entitled, Fact-Finding and Intelligence Bureau (FFIB) v. Amado Lagdameo, et al. The order further

states:

"It is worth mentioning that the power of the Ombudsman to investigate and to require the production and inspection of records and

documents is sanctioned by the 1987 Philippine Constitution, Republic Act No. 6770, otherwise known as Ombudsman Act of 1989 and

under existing jurisprudence on the matter. It must be noted that R.A. 6770 especially Section 15 thereof provides, among others, the

following powers, functions and duties of the Ombudsman, to wit:

x x x

(8) Administer oaths, issue subpoena duces tecum and take testimony in any investigation or inquiry, including the power to examine and

have access to banks accounts and records;

(9) Punish for contempt in accordance with the Rules of Court and under the same procedure and with the same penalties provided

therein.

Clearly, the specific provision of R.A. 6770, a later legislation, modifies the law on the Secrecy of Bank Deposits (R.A.1405) and places the

office of the Ombudsman in the same footing as the courts of law in this regard."2

The basis of the Ombudsman in ordering an in camera inspection of the accounts is a trail managers checks purchased by one George Trivinio, a

respondent in OMB-097-0411, pending with the office of the Ombudsman.

It would appear that Mr. George Trivinio, purchased fifty one (51) Managers Checks (MCs) for a total amount of P272.1 Million at Traders Royal

Bank, United Nations Avenue branch, on May 2 and 3, 1995. Out of the 51 MCs, eleven (11) MCs in the amount of P70.6 million, were deposited

and credited to an account maintained at the Union Bank, Julia Vargas Branch.3

On May 26, 1998, the FFIB panel met in conference with petitioner Lourdes T. Marquez and Atty. Fe B. Macalino at the bank's main office, Ayala

Avenue, Makati City. The meeting was for the purpose of allowing petitioner and Atty. Macalino to view the checks furnished by Traders Royal

Bank. After convincing themselves of the veracity of the checks, Atty. Macalino advised Ms. Marquez to comply with the order of the Ombudsman.

Petitioner agreed to an in camera inspection set on June 3, 1998.4

However, on June 4,1998, petitioner wrote the Ombudsman explaining to him that the accounts in question cannot readily be identified and asked

for time to respond to the order. The reason forwarded by the petitioner was that "despite diligent efforts and from the accounts numbers

presented, we can not identify these accounts since the checks are issued in cash or bearer. We surmised that these accounts have long been

dormant, hence are not covered by the new account number generated by the Union Bank system. We therefore have to verify from the Interbank

records archives for the whereabouts of these accounts.5

The Ombudsman, responding to the request of the petitioner for time to comply with the order, stated: "firstly, it must be emphasized that Union

Bank, Julia Vargas Branch was depositary bank of the subject Traders Royal Bank Manager's Check (MCs), as shown at its dorsal portion and as

cleared by the Philippines Clearing House, not the International Corporate Bank.

Notwithstanding the facts that the checks were payable to cash or bearer, nonetheless, the name of the depositor(s) could easily be identified

since the account numbers x x x where said checks were deposited are identified in the order.

Even assuming that the accounts xxx were already classified as "dormant accounts," the bank is still required to preserve the records pertaining to

the accounts within a certain period of time as required by existing banking rules and regulations.

And finally, the in camera inspection was already extended twice from May 13, 1998 to June 3,1998 thereby giving the bank enough time within

which to sufficiently comply with the order."6

Thus, on June 16, 1998, the Ombudsman issued an order directing petitioner to produce the bank documents relative to accounts in issue. The

order states:

Viewed from the foregoing, your persistent refusal to comply with Ombudsman's order in unjustified, and is merely intended to delay the

investigation of the case. Your act constitutes disobedience of or resistance to a lawful order issued by this office and is punishable as

Indirect Contempt under Section 3(b) of R.A. 6770. The same may also constitute obstruction in the lawful exercise of the functions of the

Ombudsman which is punishable under Section 36 of R.A. 6770.7

On July 10,1998, petitioner together with Union Bank of the Philippines, filed a petition for declaratory relief, prohibition and injunctions8 with the

Regional Trial Court, Makati City, against the Ombudsman.

The petition was intended to clear the rights and duties of petitioner. Thus, petitioner sought a declaration of her rights from the court due to the

clear conflict between RA No.6770, Section 15 and R.A. No. 1405, Sections 2 and 3.

Petitioner prayed for a temporary restraining order (TRO) because the Ombudsman and the other persons acting under his authority were

continuously harassing her to produce the bank documents relatives to the accounts in question. Moreover, on June 16, 1998, the Ombudsman

issued another order stating that unless petitioner appeared before the FFIB with the documents requested, petitioner manager would be charged

with indirect contempt and obstruction of justice.

In the meantime,9 on July 14, 1998, the lower court denied petitioner's prayer for a temporary restraining order and stated us:

"After hearing the arguments of the parties, the court finds the application for a Temporary Restraining Order to be without merit.

"Since the application prays for restraint of the respondent, in the exercise of his contempt powers under Section 15(9) in relation to

paragraph (8) of RA. 6770, known as " The Ombudsman Act of 1989", there is no great or irreparable injury from which petitioners may

suffer, if respondent is not so restrained. Respondent should he decide to exercise his contempt powers would still have to apply with the

court. x x x Anyone who, without lawful excuse x x x refuses to produce documents for inspection, when thereunto lawfully required shall

be subject to discipline as in case of contempt of Court and upon application of the individual or body exercising the power in question

shall be dealt with by the Judge of the First Instance (now RTC) having jurisdiction of the case in a manner provided by the law (section

580 of the Revised Administrative Code). Under the present Constitution only judges may issue warrants, hence, respondent should apply

with the Court for the issuance of the warrant needed for the enforcement of his contempt orders. It is in these proceedings where

petitioner may question the propriety of respondent's exercise of his contempt powers. Petitioners are not therefore left without any

adequate remedy.

"The questioned orders were issued with the investigation of the case of Fact-Finding and Intelligence Bureau vs. Amado Lagdameo, et.

al., OMB-0-97-0411, for violation of RA. 3019. Since petitioner failed to show prima facie evidence that the subject matter of the

investigation is outside the jurisdiction of the Office of the Ombudsman, no writ of injunction may be issued by this Court to delay this

investigation pursuant to section 14 of Ombudsman Act of 1989."10

On July 20,1998, petitioner filed a motion for reconsideration based on the following grounds:

a. Petitioners' application for filed Temporary Restraining Order is not only to restrain the Ombudsman from exercising his contempt

powers, but to stop him from implementing his Orders dated April 29, 1998 and June 16, 1998: and

b. The subject matter of the investigation being conducted by the Ombudsman at petitioners' premises is outside his jurisdiction.11

On July 23, 1998, the Ombudsman filed a motion to dismiss the petition for declaratory relief12 on the ground that the Regional Trial Court has no

jurisdiction to hear a petition for relief from the findings and orders of the Ombudsman, citing R.A. No. 6770, Sections 14 and 27. On August 7,

1998, the Ombudsman filed an opposition to petitioner's motion for reconsideration dated July 20, 1998.13

On August 19,1998, the lower court denied petitioner's motion for reconsideration,14 and also the Ombudsman's motion to dismiss. 15

On August 21, 1998, petitioner received a copy of the motion to cite her for contempt, filed with the Office of the Ombudsman by Agapito B.

Rosales, Director, Fact Finding and Intelligence Bureau (FFIB).16

On August 31, 1998, petitioner filed with the Ombudsman an opposition to the motion to cite her in contempt on the ground that the filing thereof

was premature due to the petition pending in the lower court.17 Petitioner likewise reiterated that she had no intention to disobey the orders of

the Ombudsman. However, she wanted to be clarified as to how she would comply with the orders without her breaking any law, particularly RA.

No. 1405.18

Respondent Ombudsman panel set the incident for hearing on September 7, 1998.19 After hearing, the panel issued an order dated September 7,

1998, ordering petitioner and counsel to appear for a continuation of the hearing of the contempt charges against her.20

On September 10, 1998, petitioner filed with the Ombudsman a motion for reconsideration of the above order.21 Her motion was premised on the

fact that there was a pending case with the Regional Trial Court, Makati City,22

which would determine whether obeying the orders of the

Ombudsman to produce bank documents would not violate any law.

The FFIB opposed the motion,23 and on October 14, 1998, the Ombudsman denied the motion by order the dispositive portion of which reads:

"Wherefore, respondent Lourdes T. Marquez's motion for reconsideration is hereby DENIED, for lack of merit. Let the hearing of the

motion of the Fact Finding Intelligence Bureau (FFIB) to cite her for indirect contempt to be intransferrably set to 29 October 1998 at 2:00

o'clock p.m. at which date and time she should appear personally to submit her additional evidence. Failure to do so shall be deemed a

waiver thereof."24

Hence, the present petition.25

The issue is whether petitioner may be cited for indirect contempt for her failure to produce the documents requested by the Ombudsman. And

whether the order of the Ombudsman to have an in camera inspection of the questioned account is allowed as an exception to the law on secrecy

of bank deposits (R.A. No.1405).

An examination of the secrecy of bank deposits law (R.A. No.1405) would reveal the following exceptions:

1. Where the depositor consents in writing;

2. Impeachment case;

3. By court order in bribery or dereliction of duty cases against public officials;

4. Deposit is subject of litigation;

5. Sec. 8, R.A. No.3019, in cases of unexplained wealth as held in the case of PNB vs. Gancayco.26

The order of the Ombudsman to produce for in camera inspection the subject accounts with the Union Bank of the Philippines, Julia Vargas Branch,

is based on a pending investigation at the Office of the Ombudsman against Amado Lagdameo, et. al. for violation of R.A. No. 3019, Sec. 3 (e) and

(g) relative to the Joint Venture Agreement between the Public Estates Authority and AMARI.

We rule that before an in camera inspection may be allowed, there must be a pending case before a court of competent jurisdiction. Further, the

account must be clearly identified, the inspection limited to the subject matter of the pending case before the court of competent jurisdiction. The

bank personnel and the account holder must be notified to be present during the inspection, and such inspection may cover only the account

identified in the pending case.

In Union Bank of the Philippines v. Court of Appeals, we held that "Section 2 of the Law on Secrecy of Bank Deposits, as amended, declares bank

deposits to be "absolutely confidential" except:

(1) In an examination made in the course of a special or general examination of a bank that is specifically authorized by the Monetary

Board after being satisfied that there is reasonable ground to believe that a bank fraud or serious irregularity has been or is being

committed and that it is necessary to look into the deposit to establish such fraud or irregularity,

(2) In an examination made by an independent auditor hired by the bank to conduct its regular audit provided that the examination is for

audit purposes only and the results thereof shall be for the exclusive use of the bank,

(3) Upon written permission of the depositor,

(4) In cases of impeachment,

(5) Upon order of a competent court in cases of bribery or dereliction of duty of public officials, or

(6) In cases where the money deposited or invested is the subject matter of the litigation".27

In the case at bar, there is yet no pending litigation before any court of competent authority. What is existing is an investigation by the Office of the

Ombudsman. In short, what the office of the ombudsman would wish to do is to fish for additional evidence to formally charge Amado Lagdameo,

et. al., with the Sandiganbayan. Clearly, there was no pending case in court which would warrant the opening of the bank account for inspection.

Zone of privacy are recognized and protected in our laws. The Civil Code provides that" [e]very person shall respect the dignity, personality, privacy

and peace of mind of his neighbors and other persons" and punishes as actionable torts several acts for meddling and prying into the privacy of

another. It also holds public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another

person, and recognizes the privacy of letters and other private communications. The Revised Penal Code makes a crime of the violation of secrets

by an officer, revelation of trade and industrial secrets, and trespass to dwelling. Invasion of privacy is an offense in special laws like the Anti-

Wiretapping Law, the Secrecy of Bank Deposits Act, and the Intellectual Property Code.28

IN VIEW WHEREOF, we GRANT the petition. We order the Ombudsman to cease and desist from requiring Union Bank Manager Lourdes T.

Marquez, or anyone in her place to comply with the order dated October 14,1998, and similar orders. No costs.

SO ORDERED . 1âwphi1.nêt

G.R. No. 167798 April 19, 2006

KILUSANG MAYO UNO, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), JOSELITO V. USTAREZ, EMILIA P.

DAPULANG, SALVADOR T. CARRANZA, MARTIN T. CUSTODIO, JR. and ROQUE M. TAN, Petitioners,

vs.

THE DIRECTOR-GENERAL, NATIONAL ECONOMIC DEVELOPMENT AUTHORITY, and THE SECRETARY, DEPARTMENT OF BUDGET and

MANAGEMENT, Respondents.

x-----------------------------------x

G.R. No. 167930 April 19, 2006

BAYAN MUNA Representatives SATUR C. OCAMPO, TEODORO A. CASIÑO, and JOEL G. VIRADOR, GABRIELA WOMEN’S PARTY Representative

LIZA L. MAZA, ANAKPAWIS Representatives RAFAEL V. MARIANO and CRISPIN B. BELTRAN, Rep. FRANCIS G. ESCUDERO, Rep. EDUARDO C.

ZIALCITA, Rep. LORENZO R. TAÑADA III, DR. CAROL PAGADUAN-ARAULLO and RENATO M. REYES, JR. of BAYAN, MARIE HILAO-ENRIQUEZ of

KARAPATAN, ANTONIO L. TINIO of ACT, FERDINAND GAITE of COURAGE, GIOVANNI A. TAPANG of AGHAM, WILFREDO MARBELLA GARCIA, of

KMP, LANA LINABAN of GABRIELA, AMADO GAT INCIONG, RENATO CONSTANTINO, JR., DEAN PACIFICO H. AGABIN, SHARON R. DUREMDES of

the NATIONAL COUNCIL OF CHURCHES IN THE PHILIPPINES, and BRO. EDMUNDO L. FERNANDEZ (FSC) of the ASSOCIATION OF MAJOR RELIGIOUS

SUPERIORS OF THE PHILIPPINES (AMRSP), Petitioners,

vs.

EDUARDO ERMITA, in his capacity as Executive Secretary, ROMULO NERI, in his capacity as Director-General of the NATIONAL ECONOMIC and

DEVELOPMENT AUTHORITY (NEDA) and the Administrator of the NATIONAL STATISTICS OFFICE (NSO), Respondents.

D E C I S I O N

CARPIO, J.:

This case involves two consolidated petitions for certiorari, prohibition, and mandamus under Rule 65 of the Rules of Court, seeking the

nullification of Executive Order No. 420 (EO 420) on the ground that it is unconstitutional.

EO 420, issued by President Gloria Macapagal-Arroyo on 13 April 2005, reads:

REQUIRING ALL GOVERNMENT AGENCIES AND GOVERNMENT-OWNED AND CONTROLLED CORPORATIONS TO STREAMLINE AND HARMONIZE

THEIR IDENTIFICATION (ID) SYSTEMS, AND AUTHORIZING FOR SUCH PURPOSE THE DIRECTOR-GENERAL, NATIONAL ECONOMIC AND

DEVELOPMENT AUTHORITY TO IMPLEMENT THE SAME, AND FOR OTHER PURPOSES

WHEREAS, good governance is a major thrust of this Administration;

WHEREAS, the existing multiple identification systems in government have created unnecessary and costly redundancies and higher costs to

government, while making it inconvenient for individuals to be holding several identification cards;

WHEREAS, there is urgent need to streamline and integrate the processes and issuance of identification cards in government to reduce costs and

to provide greater convenience for those transacting business with government;

WHEREAS, a unified identification system will facilitate private businesses, enhance the integrity and reliability of government-issued identification

cards in private transactions, and prevent violations of laws involving false names and identities.

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines by virtue of the powers vested in me by law, do

hereby direct the following:

Section 1. Adoption of a unified multi-purpose identification (ID) system for government.1avvphil.net – All government agencies, including

government-owned and controlled corporations, are hereby directed to adopt a unified multi-purpose ID system to ensure the attainment of the

following objectives:

a. To reduce costs and thereby lessen the financial burden on both the government and the public brought about by the use of multiple

ID cards and the maintenance of redundant database containing the same or related information;

b. To ensure greater convenience for those transacting business with the government and those availing of government services;

c. To facilitate private businesses and promote the wider use of the unified ID card as provided under this executive order;

d. To enhance the integrity and reliability of government-issued ID cards; and

e. To facilitate access to and delivery of quality and effective government service.

Section 2. Coverage – All government agencies and government-owned and controlled corporations issuing ID cards to their members or

constituents shall be covered by this executive order.

Section 3. Data requirement for the unified ID system – The data to be collected and recorded by the participating agencies shall be limited to the

following:

Name

Home Address

Sex

Picture

Signature

Date of Birth

Place of Birth

Marital Status

Names of Parents

Height

Weight

Two index fingers and two thumbmarks

Any prominent distinguishing features like moles and others

Tax Identification Number (TIN)

Provided that a corresponding ID number issued by the participating agency and a common reference number shall form part of the stored ID data

and, together with at least the first five items listed above, including the print of the right thumbmark, or any of the fingerprints as collected and

stored, shall appear on the face or back of the ID card for visual verification purposes.

Section 4. Authorizing the Director-General, National Economic and Development Authority, to Harmonize All Government Identification

Systems. – The Director-General, National Economic Development Authority, is hereby authorized to streamline and harmonize all government ID

systems.

Section 5. Functions and responsibilities of the Director-General, National Economic and Development Authority. – In addition to his organic

functions and responsibilities, the Director-General, National Economic and Development Authority, shall have the following functions and

responsibilities:

a. Adopt within sixty (60) days from the effectivity of this executive order a unified government ID system containing only such data and

features, as indicated in Section 3 above, to validly establish the identity of the card holder:

b. Enter into agreements with local governments, through their respective leagues of governors or mayors, the Commission on Elections

(COMELEC), and with other branches or instrumentalities of the government, for the purpose of ensuring government-wide adoption of

and support to this effort to streamline the ID systems in government;

b. Call on any other government agency or institution, or create sub–committees or technical working groups, to provide such assistance

as may be necessary or required for the effective performance of its functions; and

d. Promulgate such rules or regulations as may be necessary in pursuance of the objectives of this executive order.

Section 6. Safeguards. – The Director-General, National Economic and Development Authority, and the pertinent agencies shall adopt such

safeguard as may be necessary and adequate to ensure that the right to privacy of an individual takes precedence over efficient public service

delivery. Such safeguards shall, as a minimum, include the following:

a. The data to be recorded and stored, which shall be used only for purposes of establishing the identity of a person, shall be limited to

those specified in Section 3 of this executive order;

b. In no case shall the collection or compilation of other data in violation of a person’s right to privacy shall be allowed or tolerated under

this order;

c. Stringent systems of access control to data in the identification system shall be instituted;

d. Data collected and stored for this purpose shall be kept and treated as strictly confidential and a personal or written authorization of

the Owner shall be required for access and disclosure of data;

e. The identification card to be issued shall be protected by advanced security features and cryptographic technology; and

f. A written request by the Owner of the identification card shall be required for any correction or revision of relevant data, or under such

conditions as the participating agency issuing the identification card shall prescribe.

Section 7. Funding. – Such funds as may be recommended by the Department of Budget and Management shall be provided to carry out the

objectives of this executive order.

Section 8. Repealing clause. – All executive orders or issuances, or portions thereof, which are inconsistent with this executive order, are hereby

revoked, amended or modified accordingly.

Section 9. Effectivity. – This executive order shall take effect fifteen (15) days after its publication in two (2) newspapers of general circulation.

DONE in the City of Manila, this 13th day of April, in the year of Our Lord, Two Thousand and Five.

Thus, under EO 420, the President directs all government agencies and government-owned and controlled corporations to adopt a uniform data

collection and format for their existing identification (ID) systems.

Petitioners in G.R. No. 167798 allege that EO 420 is unconstitutional because it constitutes usurpation of legislative functions by the executive

branch of the government. Furthermore, they allege that EO 420 infringes on the citizen’s right to privacy.1

Petitioners in G.R. No. 167930 allege that EO 420 is void based on the following grounds:

1. EO 420 is contrary to law. It completely disregards and violates the decision of this Honorable Court in Ople v. Torres et al., G.R. No.

127685, July 23, 1998. It also violates RA 8282 otherwise known as the Social Security Act of 1997.

2. The Executive has usurped the legislative power of Congress as she has no power to issue EO 420. Furthermore, the implementation of

the EO will use public funds not appropriated by Congress for that purpose.

3. EO 420 violates the constitutional provisions on the right to privacy

(i) It allows access to personal confidential data without the owner’s consent.

(ii) EO 420 is vague and without adequate safeguards or penalties for any violation of its provisions.

(iii) There are no compelling reasons that will legitimize the necessity of EO 420.

4. Granting without conceding that the President may issue EO 420, the Executive Order was issued without public hearing.

5. EO 420 violates the Constitutional provision on equal protection of laws and results in the discriminatory treatment of and penalizes

those without ID.2

Issues

Essentially, the petitions raise two issues. First, petitioners claim that EO 420 is a usurpation of legislative power by the President. Second,

petitioners claim that EO 420 infringes on the citizen’s right to privacy.

Respondents question the legal standing of petitioners and the ripeness of the petitions. Even assuming that petitioners are bereft of legal

standing, the Court considers the issues raised under the circumstances of paramount public concern or of transcendental significance to the

people. The petitions also present a justiciable controversy ripe for judicial determination because all government entities currently issuing

identification cards are mandated to implement EO 420, which petitioners claim is patently unconstitutional. Hence, the Court takes cognizance of

the petitions.

The Court’s Ruling

The petitions are without merit.

On the Alleged Usurpation of Legislative Power

Section 2 of EO 420 provides, "Coverage. – All government agencies and government-owned and controlled corporations issuing ID cards to their

members or constituents shall be covered by this executive order." EO 420 applies only to government entities that issue ID cards as part of their

functions under existing laws. These government entities have already been issuing ID cards even prior to EO 420. Examples of these government

entities are the GSIS,3 SSS,4 Philhealth,5 Mayor’s Office,6 LTO,7 PRC,8 and similar government entities.

Section 1 of EO 420 directs these government entities to "adopt a unified multi-purpose ID system." Thus, all government entities that issue IDs as

part of their functions under existing laws are required to adopt a uniform data collection and format for their IDs. Section 1 of EO 420 enumerates

the purposes of the uniform data collection and format, namely:

a. To reduce costs and thereby lessen the financial burden on both the government and the public brought about by the use of multiple

ID cards and the maintenance of redundant database containing the same or related information;

b. To ensure greater convenience for those transacting business with the government and those availing of government services;

c. To facilitate private businesses and promote the wider use of the unified ID card as provided under this executive order;

d. To enhance the integrity and reliability of government-issued ID cards; and

e. To facilitate access to and delivery of quality and effective government service.

In short, the purposes of the uniform ID data collection and ID format are to reduce costs, achieve efficiency and reliability, insure compatibility,

and provide convenience to the people served by government entities.

Section 3 of EO 420 limits the data to be collected and recorded under the uniform ID system to only 14 specific items, namely: (1) Name; (2) Home

Address; (3) Sex; (4) Picture; (5) Signature; (6) Date of Birth; (7) Place of Birth; (8) Marital Status; (9) Name of Parents; (10) Height; (11) Weight; (12)

Two index fingers and two thumbmarks; (13) Any prominent distinguishing features like moles or others; and (14) Tax Identification Number.

These limited and specific data are the usual data required for personal identification by government entities, and even by the private sector. Any

one who applies for or renews a driver’s license provides to the LTO all these 14 specific data.

At present, government entities like LTO require considerably more data from applicants for identification purposes. EO 420 will reduce the data

required to be collected and recorded in the ID databases of the government entities. Government entities cannot collect or record data, for

identification purposes, other than the 14 specific data.

Various laws allow several government entities to collect and record data for their ID systems, either expressly or impliedly by the nature of the

functions of these government entities. Under their existing ID systems, some government entities collect and record more data than what EO 420

allows. At present, the data collected and recorded by government entities are disparate, and the IDs they issue are dissimilar.

In the case of the Supreme Court,9 the IDs that the Court issues to all its employees, including the Justices, contain 15 specific data, namely: (1)

Name; (2) Picture; (3) Position; (4) Office Code Number; (5) ID Number; (6) Height; (7) Weight; (8) Complexion; (9) Color of Hair; (10) Blood Type;

(11) Right Thumbmark; (12) Tax Identification Number; (13) GSIS Policy Number; (14) Name and Address of Person to be Notified in Case of

Emergency; and (15) Signature. If we consider that the picture in the ID can generally also show the sex of the employee, the Court’s ID actually

contains 16 data.

In contrast, the uniform ID format under Section 3 of EO 420 requires only "the first five items listed" in Section 3, plus the fingerprint, agency

number and the common reference number, or only eight specific data. Thus, at present, the Supreme Court’s ID contains far more data than the

proposed uniform ID for government entities under EO 420. The nature of the data contained in the Supreme Court ID is also far more financially

sensitive, specifically the Tax Identification Number.

Making the data collection and recording of government entities unified, and making their ID formats uniform, will admittedly achieve substantial

benefits. These benefits are savings in terms of procurement of equipment and supplies, compatibility in systems as to hardware and software,

ease of verification and thus increased reliability of data, and the user-friendliness of a single ID format for all government entities.

There is no dispute that government entities can individually limit the collection and recording of their data to the 14 specific items in Section 3 of

EO 420. There is also no dispute that these government entities can individually adopt the ID format as specified in Section 3 of EO 420. Such an act

is certainly within the authority of the heads or governing boards of the government entities that are already authorized under existing laws to

issue IDs.

A unified ID system for all these government entities can be achieved in either of two ways. First, the heads of these existing government entities

can enter into a memorandum of agreement making their systems uniform. If the government entities can individually adopt a format for their

own ID pursuant to their regular functions under existing laws, they can also adopt by mutual agreement a uniform ID format, especially if the

uniform format will result in substantial savings, greater efficiency, and optimum compatibility. This is purely an administrative matter, and does

not involve the exercise of legislative power.

Second, the President may by executive or administrative order direct the government entities under the Executive department to adopt a uniform

ID data collection and format. Section 17, Article VII of the 1987 Constitution provides that the "President shall have control of all executive

departments, bureaus and offices." The same Section also mandates the President to "ensure that the laws be faithfully executed."

Certainly, under this constitutional power of control the President can direct all government entities, in the exercise of their functions under

existing laws, to adopt a uniform ID data collection and ID format to achieve savings, efficiency, reliability, compatibility, and convenience to the

public. The President’s constitutional power of control is self-executing and does not need any implementing legislation.

Of course, the President’s power of control is limited to the Executive branch of government and does not extend to the Judiciary or to the

independent constitutional commissions. Thus, EO 420 does not apply to the Judiciary, or to the COMELEC which under existing laws is also

authorized to issue voter’s ID cards.10 This only shows that EO 420 does not establish a national ID system because legislation is needed to establish

a single ID system that is compulsory for all branches of government.

The Constitution also mandates the President to ensure that the laws are faithfully executed. There are several laws mandating government

entities to reduce costs, increase efficiency, and in general, improve public services.11 The adoption of a uniform ID data collection and format

under EO 420 is designed to reduce costs, increase efficiency, and in general, improve public services. Thus, in issuing EO 420, the President is

simply performing the constitutional duty to ensure that the laws are faithfully executed.

Clearly, EO 420 is well within the constitutional power of the President to promulgate. The President has not usurped legislative power in issuing

EO 420. EO 420 is an exercise of Executive power – the President’s constitutional power of control over the Executive department. EO 420 is also

compliance by the President of the constitutional duty to ensure that the laws are faithfully executed.

Legislative power is the authority to make laws and to alter or repeal them. In issuing EO 420, the President did not make, alter or repeal any law

but merely implemented and executed existing laws. EO 420 reduces costs, as well as insures efficiency, reliability, compatibility and user-

friendliness in the implementation of current ID systems of government entities under existing laws. Thus, EO 420 is simply an executive issuance

and not an act of legislation.

The act of issuing ID cards and collecting the necessary personal data for imprinting on the ID card does not require legislation. Private employers

routinely issue ID cards to their employees. Private and public schools also routinely issue ID cards to their students. Even private clubs and

associations issue ID cards to their members. The purpose of all these ID cards is simply to insure the proper identification of a person as an

employee, student, or member of a club. These ID cards, although imposed as a condition for exercising a privilege, are voluntary because a person

is not compelled to be an employee, student or member of a club.

What require legislation are three aspects of a government maintained ID card system. First, when the implementation of an ID card system

requires a special appropriation because there is no existing appropriation for such purpose. Second, when the ID card system is compulsory on all

branches of government, including the independent constitutional commissions, as well as compulsory on all citizens whether they have a use for

the ID card or not. Third, when the ID card system requires the collection and recording of personal data beyond what is routinely or usually

required for such purpose, such that the citizen’s right to privacy is infringed.

In the present case, EO 420 does not require any special appropriation because the existing ID card systems of government entities covered by EO

420 have the proper appropriation or funding. EO 420 is not compulsory on all branches of government and is not compulsory on all citizens. EO

420 requires a very narrow and focused collection and recording of personal data while safeguarding the confidentiality of such data. In fact, the

data collected and recorded under EO 420 are far less than the data collected and recorded under the ID systems existing prior to EO 420.

EO 420 does not establish a national ID card system. EO 420 does not compel all citizens to have an ID card. EO 420 applies only to government

entities that under existing laws are already collecting data and issuing ID cards as part of their governmental functions. Every government entity

that presently issues an ID card will still issue its own ID card under its own name. The only difference is that the ID card will contain only the five

data specified in Section 3 of EO 420, plus the fingerprint, the agency ID number, and the common reference number which is needed for cross-

verification to ensure integrity and reliability of identification.

This Court should not interfere how government entities under the Executive department should undertake cost savings, achieve efficiency in

operations, insure compatibility of equipment and systems, and provide user-friendly service to the public. The collection of ID data and issuance of

ID cards are day-to-day functions of many government entities under existing laws. Even the Supreme Court has its own ID system for employees of

the Court and all first and second level courts. The Court is even trying to unify its ID system with those of the appellate courts, namely the Court of

Appeals, Sandiganbayan and Court of Tax Appeals.

There is nothing legislative about unifying existing ID systems of all courts within the Judiciary. The same is true for government entities under the

Executive department. If government entities under the Executive department decide to unify their existing ID data collection and ID card issuance

systems to achieve savings, efficiency, compatibility and convenience, such act does not involve the exercise of any legislative power. Thus, the

issuance of EO 420 does not constitute usurpation of legislative power.

On the Alleged Infringement of the Right to Privacy

All these years, the GSIS, SSS, LTO, Philhealth and other government entities have been issuing ID cards in the performance of their governmental

functions. There have been no complaints from citizens that the ID cards of these government entities violate their right to privacy. There have also

been no complaints of abuse by these government entities in the collection and recording of personal identification data.

In fact, petitioners in the present cases do not claim that the ID systems of government entities prior to EO 420 violate their right to privacy. Since

petitioners do not make such claim, they even have less basis to complain against the unified ID system under EO 420. The data collected and

stored for the unified ID system under EO 420 will be limited to only 14 specific data, and the ID card itself will show only eight specific data. The

data collection, recording and ID card system under EO 420 will even require less data collected, stored and revealed than under the disparate

systems prior to EO 420.

Prior to EO 420, government entities had a free hand in determining the kind, nature and extent of data to be collected and stored for their ID

systems. Under EO 420, government entities can collect and record only the 14 specific data mentioned in Section 3 of EO 420. In addition,

government entities can show in their ID cards only eight of these specific data, seven less data than what the Supreme Court’s ID shows.

Also, prior to EO 420, there was no executive issuance to government entities prescribing safeguards on the collection, recording, and disclosure of

personal identification data to protect the right to privacy. Now, under Section 5 of EO 420, the following safeguards are instituted:

a. The data to be recorded and stored, which shall be used only for purposes of establishing the identity of a person, shall be limited to

those specified in Section 3 of this executive order;

b. In no case shall the collection or compilation of other data in violation of a person’s right to privacy be allowed or tolerated under this

order;

c. Stringent systems of access control to data in the identification system shall be instituted;

d. Data collected and stored for this purpose shall be kept and treated as strictly confidential and a personal or written authorization of

the Owner shall be required for access and disclosure of data;

e. The identification card to be issued shall be protected by advanced security features and cryptographic technology;

f. A written request by the Owner of the identification card shall be required for any correction or revision of relevant data, or under such

conditions as the participating agency issuing the identification card shall prescribe.

On its face, EO 420 shows no constitutional infirmity because it even narrowly limits the data that can be collected, recorded and shown compared

to the existing ID systems of government entities. EO 420 further provides strict safeguards to protect the confidentiality of the data collected, in

contrast to the prior ID systems which are bereft of strict administrative safeguards.

The right to privacy does not bar the adoption of reasonable ID systems by government entities. Some one hundred countries have compulsory

national ID systems, including democracies such as Spain, France, Germany, Belgium, Greece, Luxembourg, and Portugal. Other countries which do

not have national ID systems, like the United States, Canada, Australia, New Zealand, Ireland, the Nordic Countries and Sweden, have sectoral cards

for health, social or other public services.12 Even with EO 420, the Philippines will still fall under the countries that do not have compulsory national

ID systems but allow only sectoral cards for social security, health services, and other specific purposes.

Without a reliable ID system, government entities like GSIS, SSS, Philhealth, and LTO cannot perform effectively and efficiently their mandated

functions under existing laws. Without a reliable ID system, GSIS, SSS, Philhealth and similar government entities stand to suffer substantial losses

arising from false names and identities. The integrity of the LTO’s licensing system will suffer in the absence of a reliable ID system.

The dissenting opinion cites three American decisions on the right to privacy, namely, Griswold v. Connecticut,13

U.S. Justice Department v.

Reporters Committee for Freedom of the Press,14 and Whalen v. Roe.15 The last two decisions actually support the validity of EO 420, while the first

is inapplicable to the present case.

In Griswold, the U.S. Supreme Court declared unconstitutional a state law that prohibited the use and distribution of contraceptives because

enforcement of the law would allow the police entry into the bedrooms of married couples. Declared the U.S. Supreme Court: "Would we allow the

police to search the sacred precincts of the marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the

notions of privacy surrounding the marriage relationship." Because the facts and the issue involved in Griswold are materially different from the

present case, Griswold has no persuasive bearing on the present case.

In U.S. Justice Department, the issue was not whether the State could collect and store information on individuals from public records nationwide

but whether the State could withhold such information from the press. The premise of the issue in U.S. Justice Department is that the State can

collect and store in a central database information on citizens gathered from public records across the country. In fact, the law authorized the

Department of Justice to collect and preserve fingerprints and other criminal identification records nationwide. The law also authorized the

Department of Justice to exchange such information with "officials of States, cities and other institutions." The Department of Justice treated such

information as confidential. A CBS news correspondent and the Reporters Committee demanded the criminal records of four members of a family

pursuant to the Freedom of Information Act. The U.S. Supreme Court ruled that the Freedom of Information Act expressly exempts release of

information that would "constitute an unwarranted invasion of personal privacy," and the information demanded falls under that category of

exempt information.

With the exception of the 8 specific data shown on the ID card, the personal data collected and recorded under EO 420 are treated as "strictly

confidential" under Section 6(d) of EO 420. These data are not only strictly confidential but also personal matters. Section 7, Article III of the 1987

Constitution grants the "right of the people to information on matters of public concern." Personal matters are exempt or outside the coverage of

the people’s right to information on matters of public concern. The data treated as "strictly confidential" under EO 420 being private matters and

not matters of public concern, these data cannot be released to the public or the press. Thus, the ruling in U.S. Justice Department does not collide

with EO 420 but actually supports the validity EO 420.

Whalen v. Roe is the leading American case on the constitutional protection for control over information. In Whalen, the U.S. Supreme Court

upheld the validity of a New York law that required doctors to furnish the government reports identifying patients who received prescription drugs

that have a potential for abuse. The government maintained a central computerized database containing the names and addresses of the patients,

as well as the identity of the prescribing doctors. The law was assailed because the database allegedly infringed the right to privacy of individuals

who want to keep their personal matters confidential. The U.S. Supreme Court rejected the privacy claim, and declared:

Disclosures of private medical information to doctors, to hospital personnel, to insurance companies, and to public health agencies are often an

essential part of modern medical practice even when the disclosure may reflect unfavorably on the character of the patient. Requiring such

disclosures to representatives of the State having responsibility for the health of the community does not automatically amount to an

impermissible invasion of privacy. (Emphasis supplied)

Compared to the personal medical data required for disclosure to the New York State in Whalen, the 14 specific data required for disclosure to the

Philippine government under EO 420 are far less sensitive and far less personal. In fact, the 14 specific data required under EO 420 are routine data

for ID systems, unlike the sensitive and potentially embarrassing medical records of patients taking prescription drugs. Whalen, therefore, carries

persuasive force for upholding the constitutionality of EO 420 as non-violative of the right to privacy.

Subsequent U.S. Supreme Court decisions have reiterated Whalen. In Planned Parenthood of Central Missouri v. Danforth,16 the U.S. Supreme

Court upheld the validity of a law that required doctors performing abortions to fill up forms, maintain records for seven years, and allow the

inspection of such records by public health officials. The U.S. Supreme Court ruled that "recordkeeping and reporting requirements that are

reasonably directed to the preservation of maternal health and that properly respect a patient’s confidentiality and privacy are permissible."

Again, in Planned Parenthood of Southeastern Pennsylvania v. Casey,17 the U.S. Supreme Court upheld a law that required doctors performing an

abortion to file a report to the government that included the doctor’s name, the woman’s age, the number of prior pregnancies and abortions that

the woman had, the medical complications from the abortion, the weight of the fetus, and the marital status of the woman. In case of state-funded

institutions, the law made such information publicly available. In Casey, the U.S. Supreme Court stated: "The collection of information with respect

to actual patients is a vital element of medical research, and so it cannot be said that the requirements serve no purpose other than to make

abortion more difficult."

Compared to the disclosure requirements of personal data that the U.S. Supreme Court have upheld in Whalen, Danforth and Casey as not violative

of the right to privacy, the disclosure requirements under EO 420 are far benign and cannot therefore constitute violation of the right to privacy. EO

420 requires disclosure of 14 personal data that are routine for ID purposes, data that cannot possibly embarrass or humiliate anyone.

Petitioners have not shown how EO 420 will violate their right to privacy. Petitioners cannot show such violation by a mere facial examination of EO

420 because EO 420 narrowly draws the data collection, recording and exhibition while prescribing comprehensive safeguards. Ople v. Torres18 is

not authority to hold that EO 420 violates the right to privacy because in that case the assailed executive issuance, broadly drawn and devoid of

safeguards, was annulled solely on the ground that the subject matter required legislation. As then Associate Justice, now Chief Justice Artemio V.

Panganiban noted in his concurring opinion in Ople v. Torres, "The voting is decisive only on the need for appropriate legislation, and it is only on

this ground that the petition is granted by this Court."

EO 420 applies only to government entities that already maintain ID systems and issue ID cards pursuant to their regular functions under existing

laws. EO 420 does not grant such government entities any power that they do not already possess under existing laws. In contrast, the assailed

executive issuance in Ople v. Torres sought to establish a "National Computerized Identification Reference System,"19 a national ID system that did

not exist prior to the assailed executive issuance. Obviously, a national ID card system requires legislation because it creates a new national data

collection and card issuance system where none existed before.

In the present case, EO 420 does not establish a national ID system but makes the existing sectoral card systems of government entities like GSIS,

SSS, Philhealth and LTO less costly, more efficient, reliable and user-friendly to the public. Hence, EO 420 is a proper subject of executive issuance

under the President’s constitutional power of control over government entities in the Executive department, as well as under the President’s

constitutional duty to ensure that laws are faithfully executed.

WHEREFORE, the petitions are DISMISSED. Executive Order No. 420 is declared VALID.

SO ORDERED.

G.R. No. 87959 August 13, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

MARCELINO C. MANDAL, EDUARDO P. MANANSALA, AND JOHN DOE, accused, MARCELINO C. MANDAL AND EDUARDO P. MANANSALA, accused-

appellants.

The Solicitor General for plaintiff-appellee.

Felipe A. Abrajano for accused-appellants.

MELENCIO-HERRERA, J.:

Convicted by the Regional Trial Court, Branch LXI, Angeles City, 1 of the crime of Robbery with Homicide, accused, Marcelino C. Mandal and

Eduardo P. Manansala, interpose this appeal, pleading their innocence.

Arrayed against their urgings are the following facts presented by the prosecution and given credence by the Trial Court:

The victims, Sgt. Thomas Sessamen and Sgt. Gavino Jose Mendez, were, at the time of the incident, working with the United States Air Force (USAF)

in Angeles City. In the early morning of 4 July 1986, at around 1:30 A.M., after bar-hopping, they decided to proceed to another bar known as

"Dormitory."

They boarded a jeepney with three (3) male persons inside, including the driver, who turned out to be the accused Eduardo P. Manansala. After

riding for some time, Sgt. Sessamen sensed that they were going in another direction. His suspicion was confirmed when the driver took them to a

dark street where there were no houses. When they reached a lighted portion of the street, Sgt. Mendez told Sgt. Sessamen that they were getting

off. As Mendez tried to do so, however, the man seated in front of him, whom he later identified as the accused, Marcelino C. Mandal, grabbed his

shirt, poked a knife at his neck, and demanded his valuables and cash.

At the same time, Sgt. Sessamen was struggling with the man in front of him (presumably John Doe) who was also trying to wrest his personal

belongings from him (Sgt. Sessamen). Sgt. Mendez shouted to the latter just to surrender his things. As the jeepney was again about to enter a dark

street, Sgt. Mendez jumped off the moving vehicle but was stabbed at the back by Mandal. He still managed to escape, however, asked for help

from the residents of Barangay Pulong-Maragul, who took him to the Clark Air Base Hospital where he was treated for his wounds for about two

weeks.

Later in the morning of 4 July 1986, the dead body of Sgt. Sessamen was found sprawled on the road at Barangay Pulong-Maragul, Angeles City,

from where Sgt. Mendez had earlier made good his escape. The autopsy findings on the cadaver revealed six (6) stab wounds, the fatal one being

that which penetrated the victim's heart.

On 6 July 1986, accused Mandal was arrested. Sgt. Mendez, who was summoned to see whether he could identify their assailants from a police

line-up, readily pointed to Mandal as the one who had stabbed him and divested him of his valuables. Sgt. Mendez even informed the police that

Mandal had an "S" tattoo on the web between the thumb and forefinger of his left hand, which the police confirmed upon verification. On 9 July

1988, the police were able to arrest accused Eduardo P. Manansala, who was also identified by Mendez in another police line-up of twelve (12)

men, as the driver of the jeepney wherein they were held up.

Shielding themselves behind the defense of alibi, the accused appellants contend:

On the other hand, the defense has satisfactorily established that on July 3,1986, at around 9:00 in the evening, Marcelino

Mandal slept with his girlfriend in a room at San Ignacio, Angeles City, and stayed there up to 10:30 in the morning of July 4.

From there, he proceeded to the house of his mother at Abacan Housing Area and stayed there the whole day of July 5, 1986.

In the morning of July 6, 1986, he again went to the apartment of his girlfriend at San Ignacio and at noontime, he went to the

house of his mother. In the evening of July 6, at around 10:00 in the evening, while on board a passenger jeepney to attend a

birthday party, he and a companion were arrested by members of the Anti-Narcotic Unit of the Angeles City Police—they were

included in a police line-up. Thereafter, he and his co- accused were charged of the crime of robbery with homicide. (p. 2, Brief

for Defendant-Appellants).

After trial, the Court a quo rendered judgment on 6 February 1989 finding accused, Marcelino C. Mandal and Eduardo P. Manansala, guilty as

charged. The dispositive portion of the judgment reads:

PREMISES CONSIDERED, AND IN THE LIGHT OF ALL THE FOREGOING, the Court finds both accused Marcelino C. Mandal and

Eduardo Manansala GUILTY as charged beyond reasonable doubt and hereby sentences them to LIFE IMPRISONMENT; to each

pay the heirs of the deceased THIRTY THOUSAND PESOS (P30,000.00), Philippine Currency; and to pay the costs of this suit.

The records disclose that during the trial, Manansala failed to present his defense as he escaped from prison and was rearrested only in time for

the promulgation of judgment (Original Record, p. 339). The transcripts of the proceedings show, however, that throughout he was duly

represented by counsel who, occasionally, also adopted the cross-examination of Mandal's lawyer (e.g., tsn, September 23, 1986, p. 11).

Convicted as aforestated, accused-appellants raised the following:

ASSIGNMENTS OF ERROR

I

The Trial Court grievously erred in holding both the accused appellants were identified or pointed out during the police line-up.

II

The Trial Court committed grave error in disregarding the plea of alibi by appellant Marcelino Mandal.

III

The Trial Court committed grave error and injustice in not acquitting appellants.

After a careful evaluation of the evidence on record, the Court is convinced that accused-appellants are guilty of the crime charged and that they

acted in concert to perpetrate the crime of Robbery with Homicide.

Accused-appellants assail the Trial Court's finding that Sgt. Mendez had positively identified accused-appellants as the perpetrator of the crime.

Accused-appellant Mandal points out that Mendez could not have possibly noticed his "S" tattoo as the struggle took place in a dark area and that

Mendez's claim that he had seen the "S" tattoo was reported to the police only two days after his arrest.

The evidence sufficiently rebuts the foregoing assertions. Mendez narrated that the jeep where they were on board was well-lighted (p. 29, tsn,

August 12, 1986). Mandal was seated in front of him. He saw the face of Manansala as the latter turned his face towards him (Mendez) to receive

the P5.00 bill for their fare (p. 30, Ibid.). He saw Mandal's tattoo mark when the latter scabbed his shirt and poked a knife at his neck (Exhibit "A-

1"), and when he surrendered his valuables without offering any resistance. Identification was further made in two police "line-ups" when accused-

appellants were arrested, with Mendez identifying Mandal first, and Manansala subsequently (tsn, November 17, 1986, pp. 22-26), In open Court,

Mendez also unerringly pointed to both accused.

Accused-appellants also contend that the Trial Court erred in rejecting the defense of alibi. Mandal claims that on 3 July 1986, he slept with Ruby

Ramos, his girl friend, in San Ignacio, Angeles City, and stayed there up to 10:30 the following morning, 4 July 1986. Corroborating his testimony,

Ruby Ramos said that she was with Mandal on 3 July 1986 until 10:30 in the morning of the following day.

It is a settled rule that alibi, being an inherently weak defense, cannot be considered unless clear and satisfactory evidence is presented to show

that it was physically impossible for the accused to be present at the scene of the crime or at the vicinity thereof at the approximate time it was

committed. Neither can alibi prevail over the clear, direct and positive identification of the accused as those responsible for the assault on the

victim (Manalaysay vs. Court of Appeals, G.R. Nos. 79940 & 79971, April 12, 1989, 172 SCRA 99; People vs. Melgar, G.R. No. 75268, January 29,

1988, 157 SCRA 718; People vs. Reunir G.R. 73605, January 29, 1988, 157 SCRA 686).

Mandal himself said that it would take only from four (4) to Five (5) minutes to travel from San Ignacio, Angeles City to the scene of the crime in

Pulong-Maragul (p. 7, tsn, November 10, 1987). Considering the distances between the places where Mandal claims to have been and the crime

scene, it was not physically impossible for him to have been at the latter place at the time of the commission of the crime.

Finally, the accused-appellants argue that the Trial Court erred in not acquitting accused-appellants on reasonable doubt. A thorough assessment

of the evidence, however, negates that argument. Aside from the positive identification by Mendez, the tattoo mark "S" on the web of Mandal's

left hand gave him away. That Manansala is culpable as well is shown by the fact that, as the jeepney driver, and with Mendez and John Doe on

board, he (Manansala) drove the victims, not to their destination but to an isolated dark street where they could perpetrate their criminal design

with impunity.

The fact that Mendez is a victim himself does not make him a biased witness. In fact, it adds to his credibility, his testimony being predicated on his

personal knowledge (People vs. Dava, G.R. Nos. L-41642-45, May 15, 1987, 149 SCRA 582). No ulterior motive to testify falsely against accused-

appellants has been imputed to Mendez. He has shown no hostility but only an interest in bringing the malefactors to justice. As the Trial Court

found, his declarations were "forthright, direct and shorn of theatrics," compared to the testimonies of defense witnesses which "tended to

confuse rather than to enlighten."

WHEREFORE, the decision appealed from is hereby AFFIRMED, in toto, except that the penalty imposed should be reclusion perpetua, " as

prescribed in Article 294 of the Revised Penal Code, and not "life imprisonment." Each accused shall pay one-half of the costs.

SO ORDERED.

G.R. No. L-69866 April 15, 1988

ROGELIO ABERCA, RODOLFO BENOSA, NESTOR BODINO NOEL ETABAG DANILO DE LA FUENTE, BELEN DIAZ-FLORES, MANUEL MARIO GUZMAN,

ALAN JAZMINEZ, EDWIN LOPEZ, ALFREDO MANSOS, ALEX MARCELINO, ELIZABETH PROTACIO-MARCELINO, JOSEPH OLAYER, CARLOS PALMA,

MARCO PALO, ROLANDO SALUTIN, BENJAMIN SESGUNDO, ARTURO TABARA, EDWIN TULALIAN and REBECCA TULALIAN petitioners,

vs.

MAJ. GEN. FABIAN VER, COL. FIDEL SINGSON, COL. ROLANDO ABADILLA, COL. GERARDO B. LANTORIA, COL. GALILEO KINTANAR, 1ST LT. COL.

PANFILO M. LACSON, MAJ. RODOLFO AGUINALDO, CAPT. DANILO PIZARRO, 1ST LT. PEDRO TANGO, 1ST LT. ROMEO RICARDO, 1ST LT. RAUL

BACALSO, MSGT BIENVENIDO BALABA and REGIONAL TRIAL COURT, National Capital Judicial Region, Branch XCV (95), Quezon City, respondents.

YAP, J.:

This petition for certiorari presents vital issues not heretofore passed upon by this Court. It poses the question whether the suspension of the

privilege of the writ of habeas corpus bars a civil action for damages for illegal searches conducted by military personnel and other violations of

rights and liberties guaranteed under the Constitution. If such action for damages may be maintained, who can be held liable for such violations:

only the military personnel directly involved and/or their superiors as well.

This case stems from alleged illegal searches and seizures and other violations of the rights and liberties of plaintiffs by various intelligence units of

the Armed Forces of the Philippines, known as Task Force Makabansa (TFM) ordered by General Fabian Ver "to conduct pre-emptive strikes against

known communist-terrorist (CT) underground houses in view of increasing reports about CT plans to sow disturbances in Metro Manila," Plaintiffs

allege, among others, that complying with said order, elements of the TFM raided several places, employing in most cases defectively issued

judicial search warrants; that during these raids, certain members of the raiding party confiscated a number of purely personal items belonging to

plaintiffs; that plaintiffs were arrested without proper warrants issued by the courts; that for some period after their arrest, they were denied visits

of relatives and lawyers; that plaintiffs were interrogated in violation of their rights to silence and counsel; that military men who interrogated

them employed threats, tortures and other forms of violence on them in order to obtain incriminatory information or confessions and in order to

punish them; that all violations of plaintiffs constitutional rights were part of a concerted and deliberate plan to forcibly extract information and

incriminatory statements from plaintiffs and to terrorize, harass and punish them, said plans being previously known to and sanctioned by

defendants.

Plaintiffs sought actual/compensatory damages amounting to P39,030.00; moral damages in the amount of at least P150,000.00 each or a total of

P3,000,000.00; exemplary damages in the amount of at least P150,000.00 each or a total of P3,000,000.00; and attorney's fees amounting to not

less than P200,000.00.

A motion to dismiss was filed by defendants, through their counsel, then Solicitor-General Estelito Mendoza, alleging that (1) plaintiffs may not

cause a judicial inquiry into the circumstances of their detention in the guise of a damage suit because, as to them, the privilege of the writ of

habeas corpus is suspended; (2) assuming that the courts can entertain the present action, defendants are immune from liability for acts done in

the performance of their official duties; and (3) the complaint states no cause of action against the defendants. Opposition to said motion to

dismiss was filed by plaintiffs Marco Palo, Danilo de la Fuente, Benjamin Sesgundo, Nel Etabag, Alfredo Mansos and Rolando Salutin on July 8, 1983,

and by plaintiffs Edwin Lopez, Manuel Mario Guzman, Alan Jasminez, Nestor Bodino, Carlos Palma, Arturo Tabara, Joseph Olayer, Rodolfo Benosa,

Belen Diaz, Flores, Rogelio Aberca, Alex Marcelino and Elizabeth Marcelino on July 21, 1983. On November 7, 1983, a Consolidated Reply was filed

by defendants' counsel.

Then, on November 8, 1983, the Regional Trial Court, National Capital Region, Branch 95, Judge Willelmo C. Fortun, Presiding, 1 issued a resolution

granting the motion to dismiss. I sustained, lock, stock and barrel, the defendants' contention (1) the plaintiffs may not cause a judicial inquiry into

the circumstances of their detention in the guise of a damage suit because, as to them, the privilege of the writ of habeas corpus is suspended; (2)

that assuming that the court can entertain the present action, defendants are immune from liability for acts done in the performance of their

official duties; and (3) that the complaint states no cause of action against defendants, since there is no allegation that the defendants named in

the complaint confiscated plaintiffs' purely personal properties in violation of their constitutional rights, and with the possible exception of Major

Rodolfo Aguinaldo and Sergeant Bienvenido Balabo committed acts of torture and maltreatment, or that the defendants had the duty to exercise

direct supervision and control of their subordinates or that they had vicarious liability as employers under Article 2180 of the Civil Code. The lower

court stated, "After a careful study of defendants' arguments, the court finds the same to be meritorious and must, therefore, be granted. On the

other hand, plaintiffs' arguments in their opposition are lacking in merit."

A motion to set aside the order dismissing the complaint and a supplemental motion for reconsideration was filed by the plaintiffs on November

18, 1983, and November 24, 1983, respectively. On December 9, 1983, the defendants filed a comment on the aforesaid motion of plaintiffs,

furnishing a copy thereof to the attorneys of all the plaintiffs, namely, Attys. Jose W. Diokno, Procopio Beltran, Rene Sarmiento, Efren Mercado,

Auguso Sanchez, Antonio L. Rosales, Pedro B. Ella Jr., Arno V. Sanidad, Alexander Padilla, Joker Arroyo, Rene Saguisag, Ramon Esguerra and Felicitas

Aquino.

On December 15, 1983, Judge Fortun issued an order voluntarily inhibiting himself from further proceeding in the case and leaving the resolution of

the motion to set aside the order of dismissal to Judge Lising, "to preclude any suspicion that he (Judge Fortun) cannot resolve [the] aforesaid

pending motion with the cold neutrality of an impartial judge and to put an end to plaintiffs assertion that the undersigned has no authority or

jurisdiction to resolve said pending motion." This order prompted plaintiffs to reesolve an amplificatory motion for reconsideration signed in the

name of the Free Legal Assistance Group (FLAG) of Mabini Legal Aid Committee, by Attys. Joker P. Arroyo, Felicitas Aquino and Arno Sanidad on

April 12, 1984. On May 2,1984, the defendants filed a comment on said amplificatory motion for reconsideration.

In an order dated May 11, 1984, the trial court, Judge Esteban Lising, Presiding, without acting on the motion to set aside order of November 8,

1983, issued an order, as follows:

It appearing from the records that, indeed, the following plaintiffs, Rogelio Aberca, Danilo de la Fuente and Marco Palo,

represented by counsel, Atty. Jose W. Diokno, Alan Jasminez represented by counsel, Atty. Augusta Sanchez, Spouses Alex

Marcelino and Elizabeth Protacio-Marcelino, represented by counsel, Atty. Procopio Beltran, Alfredo Mansos represented by

counsel, Atty. Rene Sarmiento, and Rolando Salutin, represented by counsel, Atty. Efren Mercado, failed to file a motion to

reconsider the Order of November 8, 1983, dismissing the complaint, nor interposed an appeal therefrom within the

reglementary period, as prayed for by the defendants, said Order is now final against said plaintiffs.

Assailing the said order of May 11, 1984, the plaintiffs filed a motion for reconsideration on May 28,1984, alleging that it was not true that plaintiffs

Rogelio Aberca, Danilo de la Fuente, Marco Palo, Alan Jasminez, Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando Salutin

failed to file a motion to reconsider the order of November 8, 1983 dismissing the complaint, within the reglementary period. Plaintiffs claimed

that the motion to set aside the order of November 8, 1983 and the amplificatory motion for reconsideration was filed for all the plaintiffs,

although signed by only some of the lawyers.

In its resolution of September 21, 1984, the respondent court dealt with both motions (1) to reconsider its order of May 11, 1984 declaring that

with respect to certain plaintiffs, the resolution of November 8, 1983 had already become final, and (2) to set aside its resolution of November 8,

1983 granting the defendants' motion to dismiss. In the dispositive portion of the order of September 21, 1984, the respondent court resolved:

(1) That the motion to set aside the order of finality, dated May 11, 1984, of the Resolution of dismissal of the complaint of

plaintiffs Rogelio Aberca, Danilo de la Fuente, Marco Palo, Alan Jasminez Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo

Mansos and Rolando Salutin is deed for lack of merit;

(2) For lack of cause of action as against the following defendants, to wit:

1. Gen Fabian Ver

2. Col. Fidel Singson

3. Col. Rolando Abadilla

4. Lt. Col. Conrado Lantoria, Jr.

5. Col. Galileo Montanar

6. Col. Panfilo Lacson

7. Capt. Danilo Pizaro

8. 1 Lt Pedro Tango

9. Lt. Romeo Ricardo

10. Lt. Raul Bacalso

the motion to set aside and reconsider the Resolution of dismissal of the present action or complaint, dated November 8, 1983,

is also denied but in so far as it affects and refers to defendants, to wit:

1. Major Rodolfo Aguinaldo, and

2. Master Sgt. Bienvenido Balaba

the motion to reconsider and set aside the Resolution of dismissal dated November 3, 1983 is granted and the Resolution of

dismissal is, in this respect, reconsidered and modified.

Hence, petitioners filed the instant petition for certiorari on March 15, 1985 seeking to annul and set aside the respondent court's resolution of

November 8, 1983, its order of May 11, 1984, and its resolution dated September 21, 1984. Respondents were required to comment on the

petition, which it did on November 9, 1985. A reply was filed by petitioners on August 26, 1986.

We find the petition meritorious and decide to give it due course.

At the heart of petitioners' complaint is Article 32 of the Civil Code which provides:

ART. 32. Any public officer or employee, or any private individual who directly or indirectly obstructs, defeats, violates or in any

manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:

(1) Freedom of religion;

(2) Freedom of speech;

(3) Freedom to write for the press or to maintain a periodical publication;

(4) Freedom from arbitrary or illegal detention;

(5) Freedom of suffrage;

(6) The right against deprivation of property without due process

(7) of law;

(8) The right to a just compensation when private property is taken for public use;

(9) The right to the equal protection of the laws;

(10) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures;

(11) The liberty of abode and of changing the same;

(12) The privacy of cmmunication and correspondence;

(13) The right to become a member of associations or societies for purposes not contrary to law;

(14) The right to take part in a peaceable assembly to petition the Government for redress of grievances;

(15) The right to be free from involuntary servitude in any form;

(16) The rigth of the accused against excessive bail;

(17) The rigth of the aaccused to be heard by himself and counsel, to be informed of the nature and cause of the accusation

against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the

attendance of witness in behalf;

(18) Freedom from being compelled to be a witness against ones self, or from being forced to confess guilt, or from being

induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State

witness;

(19) Freedom from excessive fines or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with

a statute which has not been judicially declared unconstitutional; and

(20) Freedom of access to the courts.

In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the

against grieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief.

Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a

preponderance of evidence.

The indemnity shall include moral damages. Exemplary damages may also be adjudicated.

The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal

Code or other penal statute.

It is obvious that the purpose of the above codal provision is to provide a sanction to the deeply cherished rights and freedoms enshrined in the

Constitution. Its message is clear; no man may seek to violate those sacred rights with impunity. In times of great upheaval or of social and political

stress, when the temptation is strongest to yield — borrowing the words of Chief Justice Claudio Teehankee — to the law of force rather than the

force of law, it is necessary to remind ourselves that certain basic rights and liberties are immutable and cannot be sacrificed to the transient needs

or imperious demands of the ruling power. The rule of law must prevail, or else liberty will perish. Our commitment to democratic principles and to

the rule of law compels us to reject the view which reduces law to nothing but the expression of the will of the predominant power in the

community. "Democracy cannot be a reign of progress, of liberty, of justice, unless the law is respected by him who makes it and by him for whom

it is made. Now this respect implies a maximum of faith, a minimum of Idealism. On going to the bottom of the matter, we discover that life

demands of us a certain residuum of sentiment which is not derived from reason, but which reason nevertheless controls. 2

Seeking to justify the dismissal of plaintiffs' complaint, the respondents postulate the view that as public officers they are covered by the mantle of

state immunity from suit for acts done in the performance of official duties or function In support of said contention, respondents maintain that —

Respondents are members of the Armed Forces of the Philippines. Their primary duty is to safeguard public safety and order.

The Constitution no less provides that the President may call them "to prevent or supress lawless violence, invasion,

insurrection or rebellion, or imminent danger thereof." (Constitution, Article VII, Section 9).

On January 17, 1981, the President issued Proclamation No. 2045 lifting martial law but providing for the continued suspension

of the privilege of the writ of habeas corpus in view of the remaining dangers to the security of the nation. The proclamation

also provided "that the call to the Armed Forces of the Philippines to prevent or suppress lawless violence, insuitection

rebellion and subversion shall continue to be in force and effect."

Petitioners allege in their complaint that their causes of action proceed from respondent General Ver's order to Task Force

Makabansa to launch pre-emptive strikes against communist terrorist underground houses in Metro Manila. Petitioners claim

that this order and its subsequent implementation by elements of the task force resulted in the violation of their constitutional

rights against unlawful searches, seizures and arrest, rights to counsel and to silence, and the right to property and that,

therefore, respondents Ver and the named members of the task force should be held liable for damages.

But, by launching a pre-emptive strike against communist terrorists, respondent members of the armed forces merely

performed their official and constitutional duties. To allow petitioners to recover from respondents by way of damages for acts

performed in the exercise of such duties run contrary to the policy considerations to shield respondents as public officers from

undue interference with their duties and from potentially disabling threats of hability (Aarlon v. Fitzgerald 102 S. Ct. 2731-1

Forbes v. Chuoco Tiaco, 16 Phil. 634), and upon the necessity of protecting the performance of governmental and public

functions from being harassed unduly or constantly interrupted by private suits (McCallan v. State, 35 Cal. App. 605; Metran v.

Paredes, 79 Phil. 819).

xxx xxx xxx

The immunity of public officers from liability arising from the performance of their duties is now a settled jurisprudence Alzua v.

Johnson, 21 Phil. 308; Zulueta v. Nicolas, 102 Phil. 944; Spalding v. Vilas, 161 US 483; 40 L. Ed. 780, 16 S. Ct. 631; Barr v. Mateo,

360; Butz v. Economon, 438 US 478; 57 L. Ed. 2d 895, 98 S. Ct. 2894; Scheuer v. Rhodes, 416 US 232; Forbes v. Chuoco Tiaco,

supra; Miller v. de Leune, 602 F. 2d 198; Sami v. US, 617 F. 2d 755).

Respondents-defendants who merely obeyed the lawful orders of the President and his call for the suppression of the rebellion

involving petitioners enjoy such immunity from Suit. 3

We find respondents' invocation of the doctrine of state immunity from suit totally misplaced. The cases invoked by respondents actually involved

acts done by officers in the performance of official duties written the ambit of their powers. As held in Forbes, etc. vs. Chuoco Tiaco and Crossfield:

4

No one can be held legally responsible in damages or otherwise for doing in a legal manner what he had authority, under the

law, to do. Therefore, if the Governor-General had authority, under the law to deport or expel the defendants, and

circumstances justifying the deportation and the method of carrying it out are left to him, then he cannot be held liable in

damages for the exercise of this power. Moreover, if the courts are without authority to interfere in any manner, for the

purpose of controlling or interferring with the exercise of the political powers vested in the chief executive authority of the

Government, then it must follow that the courts cannot intervene for the purpose of declaring that he is liable in damages for

the exeercise of this authority.

It may be that the respondents, as members of the Armed Forces of the Philippines, were merely responding to their duty, as they claim, "to

prevent or suppress lawless violence, insurrection, rebellion and subversion" in accordance with Proclamation No. 2054 of President Marcos,

despite the lifting of martial law on January 27, 1981, and in pursuance of such objective, to launch pre- emptive strikes against alleged communist

terrorist underground houses. But this cannot be construed as a blanket license or a roving commission untramelled by any constitutional restraint,

to disregard or transgress upon the rights and liberties of the individual citizen enshrined in and protected by the Constitution. The Constitution

remains the supreme law of the land to which all officials, high or low, civilian or military, owe obedience and allegiance at all times.

Article 32 of the Civil Code which renders any public officer or employee or any private individual liable in damages for violating the Constitutional

rights and liberties of another, as enumerated therein, does not exempt the respondents from responsibility. Only judges are excluded from

liability under the said article, provided their acts or omissions do not constitute a violation of the Penal Code or other penal statute.

This is not to say that military authorities are restrained from pursuing their assigned task or carrying out their mission with vigor. We have no

quarrel with their duty to protect the Republic from its enemies, whether of the left or of the right, or from within or without, seeking to destroy or

subvert our democratic institutions and imperil their very existence. What we are merely trying to say is that in carrying out this task and mission,

constitutional and legal safeguards must be observed, otherwise, the very fabric of our faith will start to unravel. In the battle of competing

Ideologies, the struggle for the mind is just as vital as the struggle of arms. The linchpin in that psychological struggle is faith in the rule of law. Once

that faith is lost or compromised, the struggle may well be abandoned.

We do not find merit in respondents' suggestion that plaintiffs' cause of action is barred by the suspension of the privilege of the writ of habeas

corpus. Respondents contend that "Petitioners cannot circumvent the suspension of the privilege of the writ by resorting to a damage suit aimed at

the same purpose-judicial inquiry into the alleged illegality of their detention. While the main relief they ask by the present action is

indemnification for alleged damages they suffered, their causes of action are inextricably based on the same claim of violations of their

constitutional rights that they invoked in the habeas corpus case as grounds for release from detention. Were the petitioners allowed the present

suit, the judicial inquiry barred by the suspension of the privilege of the writ will take place. The net result is that what the courts cannot do, i.e.

override the suspension ordered by the President, petitioners will be able to do by the mere expedient of altering the title of their action."

We do not agree. We find merit in petitioners' contention that the suspension of the privilege of the writ of habeas corpus does not destroy

petitioners' right and cause of action for damages for illegal arrest and detention and other violations of their constitutional rights. The suspension

does not render valid an otherwise illegal arrest or detention. What is suspended is merely the right of the individual to seek release from

detention through the writ of habeas corpus as a speedy means of obtaining his liberty.

Moreover, as pointed out by petitioners, their right and cause of action for damages are explicitly recognized in P.D. No. 1755 which amended

Article 1146 of the Civil Code by adding the following to its text:

However, when the action (for injury to the rights of the plaintiff or for a quasi-delict) arises from or out of any act, activity or

conduct of any public officer involving the exercise of powers or authority arising from Martial Law including the arrest,

detention and/or trial of the plaintiff, the same must be brought within one (1) year.

Petitioners have a point in contending that even assuming that the suspension of the privilege of the writ of habeas corpus suspends petitioners'

right of action for damages for illegal arrest and detention, it does not and cannot suspend their rights and causes of action for injuries suffered

because of respondents' confiscation of their private belongings, the violation of their right to remain silent and to counsel and their right to

protection against unreasonable searches and seizures and against torture and other cruel and inhuman treatment.

However, we find it unnecessary to address the constitutional issue pressed upon us. On March 25, 1986, President Corazon C. Aquino issued

Proclamation No. 2, revoking Proclamation Nos. 2045 and 2045-A and lifting the suspension of the privilege of the writ of habeas corpus. The

question therefore has become moot and academic.

This brings us to the crucial issue raised in this petition. May a superior officer under the notion of respondent superior be answerable for damages,

jointly and severally with his subordinates, to the person whose constitutional rights and liberties have been violated?

Respondents contend that the doctrine of respondent superior is applicable to the case. We agree. The doctrine of respondent superior has been

generally limited in its application to principal and agent or to master and servant (i.e. employer and employee) relationship. No such relationship

exists between superior officers of the military and their subordinates.

Be that as it may, however, the decisive factor in this case, in our view, is the language of Article 32. The law speaks of an officer or employee or

person 'directly' or "indirectly" responsible for the violation of the constitutional rights and liberties of another. Thus, it is not the actor alone (i.e.

the one directly responsible) who must answer for damages under Article 32; the person indirectly responsible has also to answer for the damages

or injury caused to the aggrieved party.

By this provision, the principle of accountability of public officials under the Constitution 5 acquires added meaning and asgilrnes a larger

dimension. No longer may a superior official relax his vigilance or abdicate his duty to supervise his subordinates, secure in the thought that he

does not have to answer for the transgressions committed by the latter against the constitutionally protected rights and liberties of the citizen. Part

of the factors that propelled people power in February 1986 was the widely held perception that the government was callous or indifferent to, if

not actually responsible for, the rampant violations of human rights. While it would certainly be go naive to expect that violators of human rights

would easily be deterred by the prospect of facing damage suits, it should nonetheless be made clear in no ones terms that Article 32 of the Civil

Code makes the persons who are directly, as well as indirectly, responsible for the transgression joint tortfeasors.

In the case at bar, the trial court dropped defendants General Fabian Ver, Col. Fidel Singson, Col. Rolando Abadilla, Col. Gerardo Lantoria, Jr., Col.

Galileo Kintanar, Col. Panfilo Lacson, Capt. Danilo Pizarro, lst Lt. Pedro Tango, Lt. Romeo Ricardo and Lt. Ricardo Bacalso from the acts of their

subordinates. Only Major Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba were kept as defendants on the ground that they alone 'have been

specifically mentioned and Identified to have allegedly caused injuries on the persons of some of the plaintiff which acts of alleged physical

violence constitute a delict or wrong that gave rise to a cause of action. But such finding is not supported by the record, nor is it in accord with law

and jurisprudence.

Firstly, it is wrong to at the plaintiffs' action for damages 5 Section 1, Article 19. to 'acts of alleged physical violence" which constituted delict or

wrong. Article 32 clearly specifies as actionable the act of violating or in any manner impeding or impairing any of the constitutional rights and

liberties enumerated therein, among others —

1. Freedom from arbitrary arrest or illegal detention;

2. The right against deprivation of property without due process of law;

3. The right to be secure in one's person, house, papers and effects against unreasonable searches and seizures;

4. The privacy of communication and correspondence;

5. Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being

induced by a promise of immunity or reward to make a confession, except when the person confessing becomes a state

witness.

The complaint in this litigation alleges facts showing with abundant clarity and details, how plaintiffs' constitutional rights and liberties mentioned

in Article 32 of the Civil Code were violated and impaired by defendants. The complaint speaks of, among others, searches made without search

warrants or based on irregularly issued or substantially defective warrants; seizures and confiscation, without proper receipts, of cash and personal

effects belonging to plaintiffs and other items of property which were not subversive and illegal nor covered by the search warrants; arrest and

detention of plaintiffs without warrant or under irregular, improper and illegal circumstances; detention of plaintiffs at several undisclosed places

of 'safehouses" where they were kept incommunicado and subjected to physical and psychological torture and other inhuman, degrading and

brutal treatment for the purpose of extracting incriminatory statements. The complaint contains a detailed recital of abuses perpetrated upon the

plaintiffs violative of their constitutional rights.

Secondly, neither can it be said that only those shown to have participated "directly" should be held liable. Article 32 of the Civil Code encompasses

within the ambit of its provisions those directly, as well as indirectly, responsible for its violation.

The responsibility of the defendants, whether direct or indirect, is amply set forth in the complaint. It is well established in our law and

jurisprudence that a motion to dismiss on the ground that the complaint states no cause of action must be based on what appears on the face of

the complaint. 6 To determine the sufficiency of the cause of action, only the facts alleged in the complaint, and no others, should be considered. 7

For this purpose, the motion to dismiss must hypothetically admit the truth of the facts alleged in the complaint. 8

Applying this test, it is difficult to justify the trial court's ruling, dismissing for lack of cause of action the complaint against all the defendants,

except Major Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba. The complaint contained allegations against all the defendants which, if

admitted hypothetically, would be sufficient to establish a cause or causes of action against all of them under Article 32 of the Civil Code.

This brings us to the last issue. Was the trial court correct in dismissing the complaint with respect to plaintiffs Rogelio Aberca, Danilo de la Puente,

Marco Palo, Alan Jazminez, Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando Salutin, on the basis of the alleged failure of

said plaintiffs to file a motion for reconsideration of the court's resolution of November 8, 1983, granting the respondent's motion to dismiss?

It is undisputed that a timely motion to set aside said order of November 8, 1983 was filed by 'plaintiffs, through counsel. True, the motion was

signed only by Atty. Joker P. Arroyo, counsel for Benjamin Sesgulido; Atty. Antonio Rosales, counsel for Edwin Lopez and Manuel Martin Guzman;

Atty. Pedro B. Ella, Jr., counsel for Nestor Bodino and Carlos Palma; Atty. Arno V. Sanidad, counsel for Arturo Tabara; Atty. Felicitas S. Aquino,

counsel for Joseph Olayer; and Atty. Alexander Padilla, counsel for Rodolfo Benosa.

But the body of the motion itself clearly indicated that the motion was filed on behalf of all the plaintiffs. And this must have been also the

understanding of defendants' counsel himself for when he filed his comment on the motion, he furnished copies thereof, not just to the lawyers

who signed the motion, but to all the lawyers of plaintiffs, to wit: Attys. Jose Diokno, Procopio Beltran, Rene Sarmiento, Efren Mercado, Augusto

Sanchez, Antonio Rosales, Pedro Efla Jr., Arno Sanidad, Alexander Padilla, Joker Arroyo, Rene Saguisag, Ramon Esguerra and Felicitas S. Aquino.

In filing the motion to set aside the resolution of November 8, 1983, the signing attorneys did so on behalf of all the plaintiff. They needed no

specific authority to do that. The authority of an attorney to appear for and in behalf of a party can be assumed, unless questioned or challenged

by the adverse party or the party concerned, which was never done in this case. Thus, it was grave abuse on the part of respondent judge to take it

upon himself to rule that the motion to set aside the order of November 8, 1953 dismissing the complaint was filed only by some of the plaintiffs,

when by its very language it was clearly intended to be filed by and for the benefit of all of them. It is obvious that the respondent judge took

umbrage under a contrived technicality to declare that the dismissal of the complaint had already become final with respect to some of the

plaintiffs whose lawyers did not sign the motion for reconsideration. Such action tainted with legal infirmity cannot be sanctioned.

Accordingly, we grant the petition and annul and set aside the resolution of the respondent court, dated November 8, 1983, its order dated May

11, 1984 and its resolution dated September 21, 1984. Let the case be remanded to the respondent court for further proceedings. With costs

against private respondents.

SO ORDERED.