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    Republic of the Philippines

    SUPREME COURTManila

    THIRD DIVISION

    G.R. No. 126379 June 26, 1998

    PEOPLE OF THE PHILIPPINES, represented by Provincial Prosecutor FAUSTINO T. CHIONG, petitioner,vs.COURT OF APPEALS, JUDGE CAESAR CASANOVA, Presiding Judge, Regional Trial Court, Branch 80,Malolos, Bulacan, AZFAR HUSSAIN, MOHAMMAD SAGED, MUJAHID KHAN, MOHAMMAD ASLAM andMEHMOOD ALI, respondents.

    NARVASA, C.J.:

    In behalf of the People, the Solicitor General has perfected the appeal at bar under Rule 45 of the Rules of Courtfrom the Decision promulgated on September 11, 1996 of the Fourteenth Division of the Court of Appeals.

    1Said

    judgment dismissed the People's petition for certiorarito invalidate (i) the Order of Judge Caesar A. Casanova ofBranch 80 of the Regional Trial Court dated February 9, 1996.

    2as well (ii) that dated May 28, 1996 denying the

    People's motion for reconsideration.3Those orders were handed down in Criminal Case No. 43-M-96, a case of

    illegal possession of explosives, after the accused had been arraigned and entered a plea of not guilty to the charge.More particularly, the Order of February 9, 1996:

    1) quashed a search warrant (No. 1068 [95]) issued by Judge Marciano I. Bacalla of Branch 216 ofthe Regional Trial Court at Quezon City on December 15, 1995,

    4

    2) declared inadmissible for any purpose the items seized under the warrant, and

    3) directed the turnover of the amount of U.S. $5,750.00 to the Court within five (5) days "to bereleased thereafter in favor of the lawful owner considering that said amount was not mentioned inthe Search Warrant."

    The antecedents, "culled from the records" by the Appellate Court, are hereunder set out.

    1. On December 14, 1995, S/Insp PNP James Brillantes applied for search warrant before Branch261, RTC of Quezon City against Mr. Azfar Hussain, who had allegedly in his possession firearmsand explosives at Abigail Variety Store, Apt. 1207 Area F, Bagong Buhay Avenue, Sapang Palay,San Jose del Monte, Bulacan.

    2. The following day, December 15, 1995, Search Warrant No. 1068 (95) against Mr. Hussain wasissued not at Abigail Variety Store but at Apt. No. 1, immediately adjacent (to) Abigail Variety Storeresulting in the arrest of four (4) Pakistani nationals and in the seizure of their personal belongings,

    papers and effects such as wallet, wrist watches, pair of shoes, jackets, t-shirts, belts, sunglassesand travelling bags including cash amounting to $3,550.00 and P1,500.00 aside from US$5,175.00(receipted) which were never mentioned in the warrant. The sum of $5,175.00 was howeverreturned to the respondents upon order of the court on respondents' motion or request. Includedallegedly are one piece of dynamite stick; two pieces of plastic explosives C-4 type and one (1)fragmentation grenade. But without the items described in the search warrant are; (a) three (3)Ingram machine pistols; (b) four (4) gmm pistol; (c) blasting caps; (d) fuse; (e) assorted chemicalingredients for explosives; and (f) assorted magazine assg and ammunitions.

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    3. On December 19, 1995, three days after the warrant was served, a return was made withoutmentioning the personal belongings, papers and effects including cash belonging to the privaterespondents. There was no showing that lawful occupants were made to witness the search.

    4. On January 22, 1996, private respondents upon arraignment, pleaded not guilty to the offensecharged; **" and on the same date, submitted their "Extremely Urgent Motion (To Quash SearchWarrant and to Declare Evidence Obtained Inadmissible)," dated January 15, 1996;

    5. **According to the private respondents in their pleading (consolidated comment on petition forcertiorari**): On January 29, 1996, an ocular inspection of the premises searched was conductedby respondent Judge and the following facts had been established as contained in the order datedJanuary 30.1996 **to wit:

    1) That the residence of all the accused is at Apartment No. 1 which is adjacentto the Abigail's Variety Store;

    2) That there is no such number as "1207" found in the building as it iscorrespondingly called only as "Apartment No. 1, 2, 3 and 4;"

    3) That Apartment No. 1 is separate from the Abigail's Variety Store;

    4) That there are no connecting doors that can pass from Abigail's Variety Storeto Apartment No. 1;

    5) That Abigail's Variety Store and Apartment No. 1 have its own respectivedoors used for ingress and egress.

    There being no objection on the said observation of the Court, let the same bereduced on the records.

    SO ORDERED.

    6. On February 9, 1996, respondent Judge **issued its order duly granting the motion to quash

    search warrant**;

    5

    7. On February 12, 1996, private respondents filed the concomitant motion to dismiss**;

    8. On February 19, 1996, Asst. Provincial Prosecutor Rolando Bulan filed a motion forreconsideration and supplemental motion on the order quashing the search warrant**;

    9. On February 27, 1996 and March 12, 1996, private respondents filed opposition/comment andsupplemental opposition/comment on the motion for reconsideration**;

    10. On May 28, 1996, respondent Judge **issued its order denying the motion forreconsideration**; (and on) June 11, 1996, private respondents filed extremely urgent reiteratedmotion to dismiss**.

    Chiefly to nullify Judge Casanova's quashal Order of February 9, 1996 above referred to, the Solicitor Generalforthwith commenced a special civil action of certiorariin the Court of Appeals. The action did not prosper, however.As earlier mentioned, the Fourteenth Division of the Appellate Tribunal promulgated judgment on September 11,1996, dismissing the case for lack of merit.

    The judgment was grounded on the following propositions, to wit:6

    1. The place actually searched was different and distinct from the place described in the searchwarrant. This fact was ascertained by the Trial Judge through an ocular inspection, the findings

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    wherein, not objected to by the People, were embodied in an order dated January 30, 1996. Theplace searched, in which the accused (herein petitioners) were then residing, wasApartment No.1.It is a place other than and separate from, and in no way connected with, albeit adjacent to,

    Abigail's Variety Store, the place stated in the search warrant.

    2. The public prosecutor's claimthat the sketch submitted to Judge Bacalla relative to theapplication for a search warrant, actually depicted the particular place to be searched was

    effectively confuted by Judge Casanova who pointed out that said "SKETCH was not dated, notsigned by the person who made it and not even mentioned in the Search Warrant by the HonorableJudge (Bacalla, who) instead**directed them to search Abigail Variety Store Apartment 1207**inthe Order **dated December 15, 1995"this, too, being the address given "in the Application forSearch Warrant dated December 14, 1995 requested by P/SR INSP. Roger James Brillantes, theTeam Leader." The untenability of the claim is made more patent by the People's admission, duringthe hearing of its petition for certiorariin the Court of Appeals, that said sketch was in truth "notattached to the application for search warrant **(but) merely attached to the motion forreconsideration." 7

    Quoted with approval by the Appellate Court were the following observations of Judge Casanovacontained in his Order of May 28, 1996, viz.:

    8

    d) ** **it is very clear that the place searched is different from the place

    mentioned in the Search Warrant, that is the reason why even P/SR. INSP RogerJames Brillantes, SPO1 Prisco Bella and SPO4 Cesar D. Santiago, who were allEDUCATED CULTURED and ADEPT to their tasks of being RAIDERS and whowere all STATIONED IN BULACAN were not even able to OPEN THEIR MOUTHto say TAGALOG with Honorable Judge who issued the Search Warrant thewords "KATABI", or "KADIKIT" or "KASUNOD NG ABIGAIL VARIETY STOREang papasukin namin" or if they happen to be an ENGLISH speakingPOLICEMEN, they were not able to open their mouth even to WHISPER theENGLISH WORDS "RESIDE" or "ADJACENT" or "BEHIND" or "NEXT toABIGAIL VARIETY STORE, the place they are going to raid."**.

    3. The search was not accomplished in the presence of the lawful occupants of the place (hereinprivate respondents) or any member of the family, said occupants being handcuffed andimmobilized in the living room at the time. The search was thus done in violation of the law.

    9

    4. The articles seized were not brought to the court within 48 hours as required by the warrantitself; "(i)n fact the return was done after 3 days or 77 hours from service, in violation of Section 11,Rule 126 of the Rules of Court.

    10

    5. Judge Casanova "correctly took cognizance of the motion to quash search warrant, pursuant tothe doctrinal tenets laid down in Nolasco vs.Pao (139 SCRA 152)which overhauled the previousruling of the Supreme Court in Templo vs.de la Cruz (60 SCRA 295). It is now the prevailing rulethat whenever a search warrant has been issued by one court or branch thereof and a criminalcase is initiated in another court or branch thereof as a result of the search of the warrant, thatsearch warrant is deemed consolidated with the criminal case for orderly procedure. The criminalcase is more substantial than the search warrant proceedings, and the presiding Judge in thecriminal case has the right to rule on the search warrant and to exclude evidence unlawfullyobtained (Nolasco & Sans cases).

    6. Grave abuse of discretion cannot be imputed to the respondent Judge, in light of "Article III,Section 2 of the Constitution and Rule 126 of the Rules of Court.

    7. The proper remedy against the challenged Order is an appeal, not the special civil action ofcertiorari.

    The Solicitor General now seeks reversal of the foregoing verdict ascribing to the Court of Appeals the followingerrors, to wit:

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    1) sanctioning "the lower Court's precipitate act of disregarding the proceedings before the issuingCourt and overturning the latter's determination of probable cause and particularity of the place tobe searched;"

    2) sanctioning "the lower Court's conclusion that the sketch was not attached to the application forwarrant despite the clear evidence**to the contrary;"

    3) ignoring "the very issues raised in the petition before it;"

    4) "holding that the validity of an otherwise valid warrant could be diminished by the tardiness bywhich the return is made;"

    5) hastily applying "the general rule that certioraricannot be made a substitute for appeal althoughthe circumstances attending the case at bar clearly fall within the exceptions to that rule;" and

    6) depriving petitioner of "the opportunity to present evidence to prove the validity of the warrantwhen the petition before it was abruptly resolved without informing petitioner thereof."

    The whole case actually hinges on the question of whether or not a search warrant was validly issued as regards theapartment in which private respondents were then actually residing, or more explicitly, whether or not that particular

    apartment had been specifically described in the warrant.

    The Government insists that the police officers who applied to the Quezon City RTC for the search warrant haddirect, personal knowledge of the place to be searched and the things to be seized. It claims that one of said officers,in fact, had been able to surreptitiously enter the place to be searched prior to the search: this being the first of four(4) separate apartments behind the Abigail Variety Store; and they were also the same police officers who eventuallyeffected the search and seizure. They thus had personal knowledge of the place to be searched and had thecompetence to make a sketch thereof; they knew exactly what objects should be taken therefrom; and they hadpresented evidence sufficient to establish probable cause. That may be so; but unfortunately, the place they had inmindthe first of four (4) separate apartment units (No. 1) at the rear of "Abigail Variety Store"was not what theJudge who issued warrant himself had in mind, and was not what was ultimately described in the search warrant.

    The discrepancy appears to have resulted from the officers' own faulty depiction of the premises to be searched. Forin their application and in the affidavit thereto appended, they wrote down a description of the place to be searched,

    which is exactly what the Judge reproduced in the search warrant: "premises located at Abigail Variety Store Apt1207. Area-F, Bagong Buhay Avenue, Sapang Palay, San Jose Del Monte, Bulacan." And the scope of the searchwas made more particular and more restrictiveby the Judge's admonition in the warrant that the search be"limited only to the premises herein described."

    Now, at the time of the application for a search warrant, there were at least five (5) distinct places in the areainvolved: the store known as "Abigail's Variety Store," and four (4) separate and independent residential apartmentunits. These are housed in a single structure and are contiguous to each other although there are no connectingdoors through which a person could pass from the interior of one to any of the others. Each of the five (5) places isindependent of the others, and may be entered only through its individual front door. Admittedly, the police officersdid not intend a search of all five (5) places, but of only one of the residential units at the rear of Abigail's VarietyStore: that immediately next to the store (Number 1).

    However, despite having personal and direct knowledge of the physical configuration of the store and the apartments

    behind the store, the police officers failed to make Judge Bacalla understand the need to pinpoint Apartment No. 1 inthe warrant. Even after having received the warrant which directs that the search be "limited only to the premisesherein described," "Abigail Variety Store Apt 1207" thus literally excluding the apartment units at the rear of thestorethey did not ask the Judge to correct said description. They seem to have simply assumed that their owndefinite idea of the place to be searched clearly indicated, according to them, in the sketch they claim to havesubmitted to Judge Bacalla in support of their application was sufficient particularization of the generalidentification of the place in the search warrant.

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    The Solicitor General argues that this assumption is sanctioned by Burgos, Sr.v.Chief of Staff,AFP,11

    allegedly tothe effect that the executing officer's prior knowledge as to the place intended in the warrant is relevant, and he may,in case of any ambiguity in the warrant as to the place to be searched, look to the affidavit in the official court file.

    Burgosis inapplicable. That case concerned two (2) search warrants which, upon perusal, immediately disclosed anobvious typographical error. The application in said case was for seizure of subversive material allegedly concealedin two places: one at "No. 19, Road 3, Project 6, Quezon City," and the other, at "784 Units C & D. RMS Building,

    Quezon Avenue, Quezon City;" Two (2) warrants issued

    No. 20-82 [a] and No. 20-83 [b]). Objection was made tothe execution of Warrant No. 20-82 (b) at "784 Units C & D, RMS Building, Quezon Avenue, Quezon City" becauseboth search warrants apparently indicated the same address (No. 19, Road 3, Project 6, Quezon City) as the placewhere the supposedly subversive material was hidden. This was error, of course but, as this Court there ruled, theerror was obviously typographical, for it was absurd to suppose that the Judge had issued two warrants for the searchof only one place. Adverting to the fact that the application for the search warrants specified two (2) distinctaddresses, and that in fact the address, "784 Units C & D, RMS Building, Quezon Avenue, Quezon City" appeared inthe opening paragraph of Warrant 20-82 (b), this Court concluded that evidently, this was the address the Judgeintended to be searched when he issued the second warrant (No. 20-82[b]); and to clear up the ambiguity caused bythe "obviously typographical error," the officer executing the warrant could consult the records in the official court file.12

    The case at bar, however, does not deal with the correction of an "obvious typographical error" involving ambiguousdescriptions of the place to be searched, as in Burgos, but the search of a place different from that clearly and without

    ambiguity identified in the search warrant. In Burgos, the inconsistency calling for clarification was immediatelyperceptible on the face of the warrants in question. In the instant case there is no ambiguity at all in the warrant. Theambiguity lies outside the instrument, arising from the absence of a meeting of minds as to the place to be searchedbetween the applicants for the warrant and the Judge issuing the same; and what was done was to substitute for theplace that the Judge had written down in the warrant, the premises that the executing officers had in their mind. Thisshould not have been done. It is neither fair nor licit to allow police officers to search a place different from that statedin the warrant on the claim that the place actually searched although not that specified in the warrant is exactlywhat they had in view when they applied for the warrant and had demarcated in their supporting evidence. What ismaterial in determining the validity of a search is the place stated in the warrant itself, not what the applicants had intheir thoughts, or had represented in the proofs they submitted to the court issuing the warrant. Indeed, following theofficers' theory, in the context of the facts of this case, all four (4) apartment units at the rear of Abigail's Variety Storewould have been fair game for a search.

    The place to be searched, as set out in the warrant, cannot be amplified or modified by the officers' own personalknowledge of the premises, or the evidence they adduced in support of their application for the warrant. Such a

    change is proscribed by the Constitution which requires inter aliathe search warrant to particularly describe the placeto be searched as well as the persons or things to be seized. It would concede to police officers the power ofchoosing the place to be searched, even if it not be that delineated in the warrant. It would open wide the door toabuse of the search process, and grant to officers executing a search warrant that discretion which the Constitutionhas precisely removed from them. The particularization of the description of the place to be searched may properlybe done only by the Judge, and only in the warrant itself; it cannot be left to the discretion of the police officersconducting the search.

    The Government faults Judge Casanova for having undertaken a review of Judge Bacalla's finding of probablecause, "as if he were an appellate court." A perusal of the record however shows that all that Judge Casanova didwas merely to point out inconsistencies between Judge Bacalla's Order of December 15, 1995 and the warrant itself,as regards the identities of the police officers examined by Judge Bacalla.

    13In Judge Casanova's view, said

    inconsistencies, being quite apparent in the record, put in doubt the sufficiency of the determination of the facts onwhich the search warrant was founded.

    The Government alleges that the officers had satisfactorily established probable cause before Judge Bacalla for theissuance of a search warrant. While this may be conceded, the trouble is, to repeat, that the place described in thesearch warrantwhich, of course, is the only place that may be legitimately searched in virtue thereof was notthat which the police officers who applied for the warrant had in mind, with the result that what they actually subjectedto search-and-seizure operations was a place other than that stated in the warrant. In fine, while there was a searchwarrant more or less properly issued as regards Abigail's Variety Store, there was none for Apartment No. 1 thefirst of the four (4) apartment units at the rear of said store, and precisely the place in which the private respondentswere then residing.

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    It bears stressing that under Section 2, Article III of the Constitution, providing that: 14

    The right of the people to be secure in their persons, houses, papers, and effects againstunreasonable 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 bedetermined personally by the judge after examination under oath or affirmation of the complainantand the witnesses he may produce, and particularly describing the place to be searched, and the

    things to be seized.

    it does not suffice, for a search warrant to be deemed valid, that it be based on probable cause, personallydetermined by the judge after examination under oath, or affirmation of the complainant and the witnesseshe may produce; it is essential, too, that it particularly describe the place to be searched,

    15the manifest

    intention being that the search be confined strictly to the place so described.

    There was therefore in this case an infringement of the constitutional requirement that a search warrant particularlydescribe the place to be searched; and that infringement necessarily brought into operation the concomitant provisionthat "(a)ny evidence obtained in violation **(inter aliaof the search-and-seizure provision) shall be inadmissible forany purpose in any proceeding.

    16

    In light of what has just been discussed, it is needless to discuss such other points sought to be made by the Office ofthe Solicitor General as whether or not (1) the sketch of the building housing the store and the residential apartmentunits

    the place to be searched being plainly marked

    was in fact attached to the application for the search

    warrant; or (2) the search had been conducted in the presence of the occupants of the place (herein petitioners),among others; or (3) the validity of the search warrant was diminished by the tardiness by which the return wasmade, or (4) the Court of Appeals had improperly refused to receive "evidence which **(the People) had earlier beendenied opportunity to present before the trial court;" or (5) the remedy of the special civil action of certiorariin theCourt of Appeals had been erroneously availed of. The resolution of these issues would not affect the correctness ofthe conclusion that the search and seizure proceedings are void because the place set forth in the search warrant isdifferent from that which the officers actually searched, or the speciousness of their argument that anyway thepremises searched were precisely what they had described to the Judge, and originally and at all times had in mind.

    Only one other matter merits treatment. The Solicitor General's Office opines that where a search warrant has been"issued by a court otherthan the one trying the main criminal case," the "proper recourse" of persons wishing toquash the warrant is to assail it before the issuing court and not before that in which the criminal case involving thesubject of the warrant is afterwards filed.

    17In support, it cites the second of five (5) "policy guidelines" laid down by

    this Court in Malaloan v. Court of Appeals18

    concerning "possible conflicts of jurisdiction (or, more accurately, in theexercise of jurisdiction) where the criminal case is pending in one court and the search warrant is issued by anothercourt for the seizure of personal property intended to be used as evidence in said criminal case." Said secondguideline reads:

    19

    2. When the latter court (referring to the court which does nottry the main criminal case) issues thesearch warrant, a motion to quash the same may be filed in and shall be resolved by said court,without prejudice to any proper recourse to the appropriate higher court by the party aggrieved bythe resolution of the issuing court. All grounds and objections then available, existent or knownshall be raised in the original or subsequent proceedings for the quashal of the warrant, otherwisethey shall be deemed waived.

    The guidelines have been misconstrued. Where a search warrant is issued by one court and the criminal actionbased on the results of the search is afterwards commenced in another court, it is not the rule that a motion to quash

    the warrant (or to retrieve things thereunder seized) may be filed only with the issuing Court. Such a motion may befiled for the first time in either the issuing Court or that in which the criminal action is pending. However, the remedy isalternative, not cumulative. The Court first taking cognizance of the motion does so to the exclusion of the other, andthe proceedings thereon are subject to the Omnibus Motion Rule and the rule against forum-shopping. This is clearlystated in the third policy guideline which indeed is what properly applies to the case at bar, to wit:

    3. Where no motion to quash the search warrant was filed in or resolved by the issuing court, theinterested party may move in the court where the criminal case is pending for the suppression asevidence of the personal property seized under the warrant if the same is offered therein for saidpurpose. Since two separate courts with different participations are involved in this situation, a

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    motion to quash a search warrant and a motion to suppress evidence are alternative and notcumulative remedies. In order to prevent forum shopping, a motion to quash shall consequently begoverned by the omnibus motion rule, provided, however, that objections not available, existent orknown during the proceedings for the quashal of the warrant may be raised in the hearing of themotion to suppress. The resolution of the court on the motion to suppress shall likewise be subjectto any proper remedy in the appropriate higher court.

    In this case, the search warrant was applied for in, and issued by, Branch 216 of the Regional Trial Court at QuezonCity, and the return was made to said court. On the other hand, the criminal action in connection with the explosivessubject of the warrant was filed in Branch 80 of the Regional Trial Court of Bulacan. In this situation, a motion toquash the search warrant, or for the return of the personal property seized (not otherwise contraband) could haveproperly been presented in the QC RTC. No such motion was ever filed. It was only after the criminal action had beencommenced in the Bulacan RTC that the motion to quash and to suppress evidence was submitted to the latter. Thecase thus falls within guideline No. 3 above quoted in accordance with which the latter court must be deemed to haveacted within its competence.

    WHEREFORE, the judgment of the Fourteenth Division of the Court of Appeals of September 11, 1996 whichdismissed the Peoples petition for certiorariseeking nullification of the Orders of Branch 80 of the Regional TrialCourt dated February 9, 1996 and May 28, 1996 in Criminal Case No. 43-M-96 is, for the reasons set out in theforegoing opinion, hereby AFFIRMED without pronouncement as to costs.

    SO ORDERED.

    Republic of the Philippines

    SUPREME COURTManila

    SECOND DIVISION

    G.R. No. 186529 August 3, 2010

    PEOPLE OF THE PHILIPPINES,Appellee,

    vs.JACK RACHO y RAQUERO,Appellant.

    D E C I S I O N

    NACHURA, J.:

    On appeal is the Court of Appeals (CA) Decision1dated May 22, 2008 in CA-G.R. CR-H.C. No. 00425 affirming the RegionalTrial Court2(RTC) Joint Decision3dated July 8, 2004 finding appellant Jack Racho y Raquero guilty beyond reasonable doubt ofViolation of Section 5, Article II of Republic Act (R.A.) No. 9165.

    The case stemmed from the following facts:

    On May 19, 2003, a confidential agent of the police transacted through cellular phone with appellant for the purchase of shabu.The agent later reported the transaction to the police authorities who immediately formed a team composed of member of the

    Philippine Drug Enforcement Agency (PDEA), the Intelligence group of the Philippine Army and the local police force toapprehend the appellant.4The agent gave the police appellants name, together with his physical description. He also assuredthem that appellant would arrive in Baler, Aurora the following day.

    On May 20, 2003, at 11:00 a.m., appellant called up the agent and informed him that he was on board a Genesis bus and wouldarrive in Baler, Aurora, anytime of the day wearing a red and white striped T-shirt. The team members then posted themselvesalong the national highway in Baler, Aurora. At around 3:00 p.m. of the same day, a Genesis bus arrived in Baler. When

    appellant alighted from the bus, the confidential agent pointed to him as the person he transacted with earlier. Having alightedfrom the bus, appellant stood near the highway and waited for a tricycle that would bring him to his final destination. Asappellant was about to board a tricycle, the team approached him and invited him to the police station on suspicion of carrying

    http://www.lawphil.net/judjuris/juri2010/aug2010/gr_186529_2010.html#fnt1http://www.lawphil.net/judjuris/juri2010/aug2010/gr_186529_2010.html#fnt1http://www.lawphil.net/judjuris/juri2010/aug2010/gr_186529_2010.html#fnt1http://www.lawphil.net/judjuris/juri2010/aug2010/gr_186529_2010.html#fnt2http://www.lawphil.net/judjuris/juri2010/aug2010/gr_186529_2010.html#fnt2http://www.lawphil.net/judjuris/juri2010/aug2010/gr_186529_2010.html#fnt2http://www.lawphil.net/judjuris/juri2010/aug2010/gr_186529_2010.html#fnt3http://www.lawphil.net/judjuris/juri2010/aug2010/gr_186529_2010.html#fnt3http://www.lawphil.net/judjuris/juri2010/aug2010/gr_186529_2010.html#fnt3http://www.lawphil.net/judjuris/juri2010/aug2010/gr_186529_2010.html#fnt4http://www.lawphil.net/judjuris/juri2010/aug2010/gr_186529_2010.html#fnt4http://www.lawphil.net/judjuris/juri2010/aug2010/gr_186529_2010.html#fnt4http://www.lawphil.net/judjuris/juri2010/aug2010/gr_186529_2010.html#fnt4http://www.lawphil.net/judjuris/juri2010/aug2010/gr_186529_2010.html#fnt3http://www.lawphil.net/judjuris/juri2010/aug2010/gr_186529_2010.html#fnt2http://www.lawphil.net/judjuris/juri2010/aug2010/gr_186529_2010.html#fnt1
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    shabu. Appellant immediately denied the accusation, but as he pulled out his hands from his pants pocket, a white envelopeslipped therefrom which, when opened, yielded a small sachet containing the suspected drug.5

    The team then brought appellant to the police station for investigation. The confiscated specimen was turned over to PoliceInspector Rogelio Sarenas De Vera who marked it with his initials and with appellants name. The field test and laboratoryexaminations on the contents of the confiscated sachet yielded positive results for methamphetamine hydrochloride.6

    Appellant was charged in two separate Informations, one for violation of Section 5 of R.A. 9165, for transporting or delivering;and the second, of Section 11 of the same law for possessing, dangerous drugs, the accusatory portions of which read:

    "That at about 3:00 oclock (sic) in the afternoon on May 20, 2003 in Baler, Aurora and within the jurisdiction of this HonorableCourt, the said accused, did then and there, unlawfully, feloniously and willfully have in his possession five point zero one (5.01)[or 4.54] grams of Methamphetamine Hydrochloride commonly known as "Shabu", a regulated drug without any permit orlicense from the proper authorities to possess the same.

    CONTRARY TO LAW."7

    "That at about 3:00 oclock (sic) in the afternoon on May 20, 2003 in Baler, Aurora, the said accused did then and there,unlawfully, feloniously and willfully transporting or delivering dangerous drug of 5.01 [or 4.54] grams of shabu without any

    permit or license from the proper authorities to transport the same.

    CONTRARY TO LAW."8

    During the arraignment, appellant pleaded "Not Guilty" to both charges.

    At the trial, appellant denied liability and claimed that he went to Baler, Aurora to visit his brother to inform him about t heir

    ailing father. He maintained that the charges against him were false and that no shabu was taken from him. As to thecircumstances of his arrest, he explained that the police officers, through their van, blocked the tricycle he was riding in; for cedhim to alight; brought him to Sea Breeze Lodge; stripped his clothes and underwear; then brought him to the police station forinvestigation.9

    On July 8, 2004, the RTC rendered a Joint Judgment10convicting appellant of Violation of Section 5, Article II, R.A. 9165 and

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

    Hence, the present appeal.

    In his brief,12appellant attacks the credibility of the witnesses for the prosecution. He likewise avers that the prosecution failed toestablish the identity of the confiscated drug because of the teams failure to mark the specimen immediately after seizure. In hissupplemental brief, appellant assails, for the first time, the legality of his arrest and the validity of the subsequent warrantlesssearch. He questions the admissibility of the confiscated sachet on the ground that it was the fruit of the poisonous tree.

    The appeal is meritorious.

    We have repeatedly held that the trial courts evaluation of the credibility of witnesses and their testimonies is entitled to greatrespect and will not be disturbed on appeal. However, this is not a hard and fast rule. We have reviewed such factual findings

    when there is a showing that the trial judge overlooked, misunderstood, or misapplied some fact or circumstance of weight and

    substance that would have affected the case.13

    Appellant focuses his appeal on the validity of his arrest and the search and seizure of the sachet of shabu and, consequently, theadmissibility of the sachet. It is noteworthy that although the circumstances of his arrest were briefly discussed by the RTC, thevalidity of the arrest and search and the admissibility of the evidence against appellant were not squarely raised by the latter andthus, were not ruled upon by the trial and appellate courts.

    It is well-settled that an appeal in a criminal case opens the whole case for review.1avvphi1This Court is clothed with ample

    authority to review matters, even those not raised on appeal, if we find them necessary in arriving at a just disposition of the case.

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    Every circumstance in favor of the accused shall be considered. This is in keeping with the constitutional mandate that everyaccused shall be presumed innocent unless his guilt is proven beyond reasonable doubt.14

    After a thorough review of the records of the case and for reasons that will be discussed below, we find that appellant can nolonger question the validity of his arrest, but the sachet of shabu seized from him during the warrantless search is inadmissible inevidence against him.

    The records show that appellant never objected to the irregularity of his arrest before his arraignment. In fact, this is the first timethat he raises the issue. Considering this lapse, coupled with his active participation in the trial of the case, we must abide with

    jurisprudence which dictates that appellant, having voluntarily submitted to the jurisdiction of the trial court, is deemed to have

    waived his right to question the validity of his arrest, thus curing whatever defect may have attended his arrest. The legality of thearrest affects only the jurisdiction of the court over his person. Appellants warrantless arrest therefore cannot, in itself, be the

    basis of his acquittal.15

    As to the admissibility of the seized drug in evidence, it is necessary for us to ascertain whether or not the search which yieldedthe alleged contraband was lawful.16

    The 1987 Constitution states that a search and consequent seizure must be carried out with a judicial warrant; otherwise, itbecomes unreasonable and any evidence obtained therefrom shall be inadmissible for any purpose in any proceeding.17Saidproscription, however, admits of exceptions, namely:

    1. Warrantless search incidental to a lawful arrest;

    2. Search of evidence in "plain view;"

    3. Search of a moving vehicle;

    4. Consented warrantless search;

    5. Customs search;

    6. Stop and Frisk; and

    7. Exigent and emergency circumstances.18

    What constitutes a reasonable or unreasonable warrantless search or seizure is purely a judicial question, determinable from theuniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probablecause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles

    procured.19

    The RTC concluded that appellant was caught in flagrante delicto, declaring that he was caught in the act of actually committinga crime or attempting to commit a crime in the presence of the apprehending officers as he arrived in Baler, Aurora bringing with

    him a sachet of shabu.20Consequently, the warrantless search was considered valid as it was deemed an incident to the lawfularrest.

    Recent jurisprudence holds that in searches incident to a lawful arrest, the arrest must precede the search; generally, the processcannot be reversed. Nevertheless, a search substantially contemporaneous with an arrest can precede the arrest if the police have

    probable cause to make the arrest at the outset of the search.21Thus, given the factual milieu of the case, we have to determine

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

    The determination of the existence or absence of probable cause necessitates a reexamination of the established facts. On May19, 2003, a confidential agent of the police transacted through cellular phone with appellant for the purchase of shabu. The agentreported the transaction to the police authorities who immediately formed a team to apprehend the appellant. On May 20, 2003, at

    11:00 a.m., appellant called up the agent with the information that he was on board a Genesis bus and would arrive in Baler,Aurora anytime of the day wearing a red and white striped T-shirt. The team members posted themselves along the national

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    highway in Baler, Aurora, and at around 3:00 p.m. of the same day, a Genesis bus arrived in Baler. When appellant alighted fromthe bus, the confidential agent pointed to him as the person he transacted with, and when the latter was about to board a tricycle,the team approached him and invited him to the police station as he was suspected of carrying shabu. When he pulled out his

    hands from his pants pocket, a white envelope slipped therefrom which, when opened, yielded a small sachet containing thesuspected drug.23The team then brought appellant to the police station for investigation and the confiscated specimen wasmarked in the presence of appellant. The field test and laboratory examinations on the contents of the confiscated sachet yielded

    positive results for methamphetamine hydrochloride.

    Clearly, what prompted the police to apprehend appellant, even without a warrant, was the tip given by the informant that

    appellant would arrive in Baler, Aurora carrying shabu. This circumstance gives rise to another question: whether thatinformation, by itself, is sufficient probable cause to effect a valid warrantless arrest.

    The long standing rule in this jurisdiction is that "reliable information" alone is not sufficient to justify a warrantless arrest. The

    rule requires, in addition, that the accused perform some overt act that would indicate that he has committed, is actuallycommitting, or is attempting to commit an offense.24We find no cogent reason to depart from this well-established doctrine.

    The instant case is similar to People v. Aruta,25People v. Tudtud,26and People v. Nuevas.27

    In People v. Aruta, a police officer was tipped off by his informant that a certain "Aling Rosa" would be arriving from BaguioCity the following day with a large volume of marijuana. Acting on said tip, the police assembled a team and deployed

    themselves near the Philippine National Bank (PNB) in Olongapo City. While thus positioned, a Victory Liner Bus stopped infront of the PNB building where two females and a man got off. The informant then pointed to the team members the woman,"Aling Rosa," who was then carrying a traveling bag. Thereafter, the team approached her and introduced themselves. Whenasked about the contents of her bag, she handed it to the apprehending officers. Upon inspection, the bag was found to containdried marijuana leaves.28

    The facts in People v. Tudtud show that in July and August, 1999, the Toril Police Station, Davao City, received a report from acivilian asset that the neighbors of a certain Noel Tudtud (Tudtud) were complaining that the latter was responsible for the

    proliferation of marijuana in the area. Reacting to the report, the Intelligence Section conducted surveillance. For five days, theygathered information and learned that Tudtud was involved in illegal drugs. On August 1, 1999, the civilian asset informed the

    police that Tudtud had headed to Cotabato and would be back later that day with a new stock of marijuana. At around 4:00 p.m.

    that same day, a team of police officers posted themselves to await Tudtuds arrival. At 8:00 p.m., two men disembarked from abus and helped each other carry a carton. The police officers approached the suspects and asked if they could see the contents ofthe box which yielded marijuana leaves.29

    In People v. Nuevas, the police officers received information that a certain male person, more or less 54" in height, 25 to 30years old, with a tattoo mark on the upper right hand, and usually wearing a sando and maong pants, would make a delivery of

    marijuana leaves. While conducting stationary surveillance and monitoring of illegal drug trafficking, they saw the accused whofit the description, carrying a plastic bag. The police accosted the accused and informed him that they were police officers. Uponinspection of the plastic bag carried by the accused, the bag contained marijuana dried leaves and bricks wrapped in a blue cloth.In his bid to escape charges, the accused disclosed where two other male persons would make a delivery of marijuana leaves.

    Upon seeing the two male persons, later identified as Reynaldo Din and Fernando Inocencio, the police approached them,introduced themselves as police officers, then inspected the bag they were carrying. Upon inspection, the contents of the bagturned out to be marijuana leaves.30

    In all of these cases, we refused to validate the warrantless search precisely because there was no adequate probable cause. Werequired the showing of some overt act indicative of the criminal design.

    As in the above cases, appellant herein was not committing a crime in the presence of the police officers. Neither did the arresting

    officers have personal knowledge of facts indicating that the person to be arrested had committed, was committing, or about tocommit an offense. At the time of the arrest, appellant had just alighted from the Gemini bus and was waiting for a tricycle.Appellant was not acting in any suspicious manner that would engender a reasonable ground for the police officers to suspect andconclude that he was committing or intending to commit a crime. Were it not for the information given by the informant,appellant would not have been apprehended and no search would have been made, and consequently, the sachet of shabu wouldnot have been confiscated.

    We are not unaware of another set of jurisprudence that deems "reliable information" sufficient to justify a search incident to a

    lawful warrantless arrest. As cited in People v. Tudtud, these include People v.

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    Maspil, Jr.,31People v. Bagista,32People v. Balingan,33People v. Lising,34People v. Montilla,35People v. Valdez,36and People v.Gonzales.37In these cases, the Court sustained the validity of the warrantless searches notwithstanding the absence of overt actsor suspicious circumstances that would indicate that the accused had committed, was actually committing, or attempting to

    commit a crime. But as aptly observed by the Court, except in Valdez and Gonzales, they were covered by the other exceptions tothe rule against warrantless searches.38

    Neither were the arresting officers impelled by any urgency that would allow them to do away with the requisite warrant. As

    testified to by Police Officer 1 Aurelio Iniwan, a member of the arresting team, their office received the "tipped information" onMay 19, 2003. They likewise learned from the informant not only the appellants physical description but also his name.

    Although it was not certain that appellant would arrive on the same day (May 19), there was an assurance that he would be therethe following day (May 20). Clearly, the police had ample opportunity to apply for a warrant.39

    Obviously, this is an instance of seizure of the "fruit of the poisonous tree," hence, the confiscated item is inadmissible in

    evidence consonant with Article III, Section 3(2) of the 1987 Constitution, "any evidence obtained in violation of this or thepreceding section shall be inadmissible for any purpose in any proceeding."

    Without the confiscated shabu, appellants conviction cannot be sustained based on the remaining evidence. Thus, an acquittaliswarranted, despite the waiver of appellant of his right to question the illegality of his arrest by entering a plea and his active

    participation in the trial of the case. As earlier mentioned, the legality of an arrest affects only the jurisdiction of the court overthe person of the accused. A waiver of an illegal, warrantless arrest does not carry with it a waiver of the inadmissibility ofevidence seized during an illegal warrantless arrest.40

    One final note. As clearly stated in People v. Nuevas,41

    x x x In the final analysis, we in the administration of justice would have no right to expect ordinary people to be law-abiding if

    we do not insist on the full protection of their rights. Some lawmen, prosecutors and judges may still tend to gloss over an illegalsearch and seizure as long as the law enforcers show the alleged evidence of the crime regardless of the methods by which theywere obtained. This kind of attitude condones law-breaking in the name of law enforcement. Ironically, it only fosters the more

    rapid breakdown of our system of justice, and the eventual denigration of society. While this Court appreciates and encouragesthe efforts of law enforcers to uphold the law and to preserve the peace and security of society, we nevertheless admonish them toact with deliberate care and within the parameters set by the Constitution and the law. Truly, the end never justifies the means.42

    WHEREFORE, premises considered, the Court of Appeals Decision dated May 22, 2008 in CA-G.R. CR-H.C. No. 00425 isREVERSED and SET ASIDE. Appellant Jack Raquero Racho is ACQUITTED for insufficiency of evidence.

    The Director of the Bureau of Corrections is directed to cause the immediate release of appellant, unless the latter is being

    lawfully held for another cause; and to inform the Court of the date of his release, or the reasons for his confinement, within ten(10) days from notice.

    No costs.

    SO ORDERED.

    Republic of the Philippines

    SUPREME COURTManila

    THIRD DIVISION

    G.R. No. 72564 April 15, 1988

    PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.ANITA CLAUDIO Y BAGTANG, accused-appellant.

    The Solicitor General for plaintiff-appellee.

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    Romeo C. Alinea for accused-appellant.

    GUTIERREZ, JR., J .:

    This is an appeal from the decision of the Regional Trial Court of Olongapo City, Branch 73 finding the accused AnitaClaudio y Bagtang guilty beyond reasonable doubt of violating Sec. 4, Rep. Act No. 6425 (Dangerous Drugs Act of1972 as amended) and sentencing her to serve the penalty of reclusion perpetua, to pay a fine of P 20,000.00, and topay the costs.

    The information filed against the accused alleged:

    That on or about the 21st day of July 1981, in the City of Olongapo, Philippines and within thejurisdiction of this Honorable Court, the above-named ACCUSED without being lawfully authorized,did then and there wilfully, unlawfully and knowingly transport 1.1 kilos of Marijuana dried leaves,which are prohibited drugs for the purpose of selling the same from Baguio City to Olongapo City.(Rollo, p. 13)

    The lower court established her guilt beyond reasonable doubt on the basis of the prosecution's evidence as follows:

    To prove the guilt of the accused, the prosecution offered the following document and testimonialevidence as follows: Exhibit "A" Letter request for Examination of suspected marijuana dried leavesweighing approximately 1.1 kilos dated July 25, 1981; "B" plastic container; "B- 1"-marijuanacontained in the plastic container; "B-1-a"another plastic container; "C"Chemistry Report No.D-668-81;"C-1" Findings: Positive for marijuana; "D,","D-1," "D-2"and "D-3; "E" and "E-1"photographs of accused with Pat. Daniel Obia and Pauline Tiongco showing the marijuana, "F"Victory Liner Ticket No. 84977;"G"Sworn Statement of Pat. Daniel Obia, "H" Request for FieldTest on suspected marijuana from accused by P/Lt. Antonio V. Galindo;"H-1"date of of therequest; "L"Certificate of Field Test dated July 22, 1981; "B-2" and "B-2a" additional Wrappingpaper; and the testimonies of witnesses of the prosecution, Theresa Ann Bugayong; Pat. DanielObio, Cpl. Paulino Tiongco, Cpl. Ernesto Abello and Sgt. Leoncio Bagang.

    Theresa Ann Bugayong22 years old, single, Forensic Chemist and a resident of 1150 Sampaloc,

    Metro Manila testified that she received a request from the Task Force Bagong Buhay, OlongapoCity, dated July 25, 1981, on specimen marijuana submitted for examination. The specimenconsisted of 900 grams of suspected dried marijuana flowering tops wrapped in a newspaperplaced in a plastic bag with a marking "MB Store" (Exh. "B").

    The examination conducted by her proved to be positive for marijuana. After her examination, sheprepared Chemistry Report No. D-668-81 dated July 29,1981 (Exhs. "C" and "C-l"). She conductedthree eliminations; microscopic examination, the duguenoi levine test and thirdly, the confirmatoryexamination of thin layer chromatographic test. The said specimen was submitted to them by OICDanilo Santiago, a representative of the CANU, Olongapo City.

    The second witness for the prosecution was Daniel Obia, 37 years old, married, policeman andresiding at 34 Corpuz St., East Tapinac, Olongapo City. Obia testified that he has been a memberof the INP, since 1970 up to the present. He was assigned in June, 1972 at the Investigation

    Division as operative. His job then was among other things to follow up reports in their office,recover stolen items and apprehend suspects. On July 21,1981, he was on Detached Service withthe ANTI-NARCOTICS Unit; and that on that date, he came from Baguio City and arrived inOlongapo City at about 1:30 o'clock in the afternoon having left Baguio at about 8:30 o'clock in themorning. He took the Victory Liner in going back to Olongapo City. His family lives in Baguio City.On board the Victory Liner, he was seated on the second seat at the back. While he was thusseated, suspect Anita Claudio boarded the same bus and took the seat in front of him after puttinga bag which she was carrying at the back of the seat of Obia. The bag placed by suspect behindhis seat was a wooven buri bag made of plastic containing some vegetables. The act of theaccused putting her bag behind Pat. Obia's seat aroused his suspicion and made him felt (sic)nervous. With the feeling that there was some unusual, he had the urge to search the woven plastic

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    bag. But it was only at San Fernando, Pampanga when he was able to go to the bag. He insertedone of his fingers in a plastic bag located at the bottom of the woven bag and smelt marijuana. Theplastic woven bag appearing to contain camote tops on the top has a big bundle of plastic ofmarijuana at the bottom. He could recognize the smell of marijuana because he was assigned atthat time at the ANTI-NARCOTICS Unit. He did not, however, do anything after he discovered thatthere was marijuana inside the plastic bag of the accused until they reached Olongapo City and theaccused alighted from the bus in front of the Caltex Gasoline Station in Sta. Rita. Right after the

    accused alighted from the bus, policeman Obina intercepted her and showed her his Id Identifyinghimself as a policeman and told her he will search her bag because of the suspicion that she wascarrying marijuana inside said bag. In reply, accused told him, "Please go with me, let us settle thisat home." However, the witness did not heed her plea and instead handcuffed her right hand andwith her, boarded a tricycle right away and brought the suspect to the police headquarters with herbag appearing to contain vegetables.

    At the police headquarters Investigation Section, the bag was searched in the presence ofInvestigator Cpl. Tiongco; Pat. Obia, the accused and Sgt. Leoncio Bagang. Inside the plastic bagwas found a big bundle of plastic containing marijuana weighing about one kilo. Witness stated thathe could detect marijuana even before the application of chemicals because of one year and a halfassignment with the CANU. After the marijuana was taken from the bag of the accused,photographs were taken of the accused and the marijuana confiscated from her possession withPat. Obia and that of Investigator Tiongco, accused and himself Identified photographs shown tohim in open Court. (Exhs. "D," "D-l," "D-2" and "D-3"). Witness was likewise shown a plastic bag of

    marijuana contained in a plastic container (Exhs. "B," "B-1" and "B-1 -a") and Identified it as the oneconfiscated from the accused and pointed to his initials on the newspaper wrapping which alsoshows the date and time, although the wrapper at the time he testified appeared to be soiledalready. The marijuana was allegedly still fresh when confiscated.

    To prove further that the accused transported the confiscated marijuana from Baguio City toOlongapo City, witness Identified Victory Liner Ticket No. 684977 which was confiscated from theaccused and for Identification purposes, the witness presented the body number of the bus hewrote at the back of the ticket which is "309" (Exhs. "F" and "F-l"). Regarding himself, he did notpay his fare from Baguio City because as a policeman, he used his badge and a free ride.

    On cross-examination, witness stated that he went to Baguio City on July 15,1981 and underwenttreatment of his heart while he was there. He was given a furlough for medical treatment. Hestayed in Baguio City for about five days and returned to Olongapo City on July 21, 1981. Prior to

    July 21, 1981, witness never knew the accused, and the first time he saw her was in Baguio whenshe boarded the same Victory Liner he took. When the accused who was bringing with her a wovenplastic bag placed the bag right behind his seat instead of placing it in front of her or beside herseat. Witness Obia became suspicious and his suspicion was confirmed when they reached SanFernando, Pampanga, after he checked the buri bag. The bus stopped at said town to load somegasoline. Witness inserted one of his fingers inside the buri bag and thereafter smelt marijuana. Heconfirmed his testimony on direct that when witness confronted accused he was invited to go withher in order to settle the matter to which he refused. Accused further testified that from the time theaccused placed her bag behind his seat from Baguio City, he felt so nervous and had to take hismedicine at the Tarlac Station. It was only after having taken his medicine that his apprehensionwas contained and thus was able to insert his right hand inside the buri bag in San Fernando,Pampanga. His fingers reached the very bottom of the bag. He Identified his sworn statementregarding this incident given on July 21, 1981 which is Exhibit "G." Witness likewise Identifiedaccused Anita Claudio in open court.

    Paulino Tiongco, 52 years old, married and resident of 31 Canada St., East Bajac Bajac, OlongapoCity, testified that as a policeman on the afternoon of July 21, 1981, he was inside the InvestigationDivision of the Police Station, Olongapo City. As Duty Investigator, between 1:45 and 2:00 o'clockin the afternoon of the same day, Pat. Daniel Obia arrived at the Police Station with a woman andIdentified her in the courtroom as Anita Claudio. Pat. Obia reported to him that he apprehendedAnita Claudio inside the Victory Liner bus for possession of marijuana dried leaves. The marijuanaleaves were contained in a buri bag with some vegetables such as camote tops, bananas andsome other vegetables. The marijuana was placed in a plastic wrapper with the name NationalBook Store colored black and white. Witness Identified the wrapper (Exh. "B-2"). The bagcontained the markings of Pat. Obia which are his initials, (Exhs. "B-2-a"), and numbers 210781

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    and not a signature, stands for Daniel Obia. After the testimony of Leoncio Bagang, theprosecution rested its case. (Rollo, pp. 42-47)

    Accused Claudio raised the following assignments of errors in this appeal:

    I

    CONVICTION UNDER SECTION 4, ART. II OF R.A. 6425 IS IMPROPER IF ONE OR SOME OFTHE ELEMENTS OF THE OFFENSE IS OR ARE ABSENT.

    II

    CONVICTION CAN NOT BE HAD UNDER SECTION 4, ART. II OF R.A. 6425 IF THE ALLEGEDBUYMAN WAS NOT PRESENTED TO TESTIFY.

    III

    APPELLANTS CONVICTION FOR DELIVERY (SEC. 4, ART II, OF R.A. 6424) IS WRONGBECAUSE SOME MATERIAL FACTS WERE OVERLOOKED AND NOT CONSIDERED INFAVOR OF APPELLANT. (Rollo, p. 91)

    The accused alleges that she is only liable, at the most, for possession under Sec. 8, Art. II of Rep. Act No. 6425 andnot for violating Sec. 4 of the same Act.

    The latter section, Sec. 4 provides:

    Sec. 4.Sale, Administration, Delivery Distribution and Transportation of Prohibited Drugs.Thepenalty of life imprisonment to death and a fine ranging from twenty thousand to thirty thousandpesos shall be imposed upon any person who, unless authorized by law, shall sell, administer,deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shallact as a broker in any of such transactions. If the victim of the offense is a minor, or should aprohibited drug involved in any offense under this Section be the proximate cause of the death of avictim thereof, the maximum penalty herein provided shall be imposed.

    Claudio contends that there was no delivery as there was no recipient of the prohibited drugs. Therefore, she may notbe convicted under Sec. 4 of Rep. Act No. 6425.

    The contention is without merit. A closer perusal of the subject provision shows that it is not only delivery which ispenalized but also the sale, administration, distribution and transportationof probihited drugs. Claudio was caughttransporting 1.1 kilos of marijuana, thus the lower court did not err in finding her guilty of violating Sec. 4.

    The accused also alleges that before the completion of delivery, the intention of the possessor is unknown.

    This allegation is also unavailing. It is undisputed that Claudio had in her possession 1.1 kilos of marijuana. This is aconsiderable quantity. As held in the case of People v. Toledo, (140 SCRA 259, 267) "the possession of suchconsiderable quantity as three plastic bags of marijuana leaves and seeds coupled with the fact that he is not a userof prohibited drugs cannot indicate anything except the intention of the accused to sell, distribute and deliver saidmarijuana.

    The accused next contends the warrantless search, seizure and apprehension as unlawful.

    The applicable provisions on this issue are found in the 1985 Rules on Criminal Procedure.

    Rule 113, Sec. 5(a) of the said Rules provides:

    .. A peace officer or a private person may, without a warrant, arrest a person:

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    (a) When, in his presence, the person to be arrested has committed, is actually committing, or isattempting to commit an offense.

    xxx xxx xxx

    Meanwhile, its Rule 126, Sec. 12 provides:

    Section 12. Search incident to lawful arrest.A person lawfully arrested may be searched fordangerous weapons or anything which may be used as proof of the commission of an offense,without a search warrant. (12a)

    Appellant Claudio was caught transporting prohibited drugs. Pat. Daniel Obia did not need a warrant to arrestClaudio as the latter was caught in flagrante delicto. The warrantless search being an incident to a lawful arrest is initself lawful. (Nolasco v. Pano, 147 SCRA 509). Therefore, there was no infirmity in the seizure of the 1.1 kilos ofmarijuana.

    The accused takes inconsistent positions in her appellant's brief. At first, she does not deny having had with hermarijuana at the time of her arrest. Instead, she claims that she should just be guilty of possession. In a completeturnabout, in the latter portion of said brief, she claims that the evidence against her were mere fabrications and themarijuana allegedly found in her possession was only planted.

    We have carefully examined the records of the case and we find no ground to alter the trial court's findings andappreciation of the evidence presented.

    Credence is accorded to the prosecution's evidence, more so as it consisted mainly of testimonies of policemen. Lawenforcers are presumed to have regularly performed their duty in the absence of proof to the contrary (People v. DeJesus, 145 SCRA 521). We also find no reason from the records why the prosecution witnesses should fabricate theirtestimonies and implicate appellant in such a serious crime (See People v. Bautista, 147 SCRA 500).

    The accused testified that she was not on that bus that came from Baguio City but rather she was in Olongapo Cityall that time. She alleged that she was arrested by Pat. Obia for no reason at all.

    In the case at bar, alibi does not deserve much credit as it was established only by the accused herself (People v. Dela Cruz, 148 SCRA 582).

    Moreover, it is a well-established rule that alibi cannot prevail over positive testimony (People v. De La Cruz, supra).

    WHEREFORE, the judgment appealed from is AFFIRMED.

    SO ORDERED.

    Republic of the Philippines

    SUPREME COURTManila

    FIRST DIVISION

    G.R.No. 74869 July 6, 1988

    PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.IDEL AMINNUDIN y AHNI, defendant-appellant.

    The Solicitor General for plaintiff-appellee.

    Herminio T. Llariza counsel de-officio for defendant-appellant.

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    CRUZ, J .:

    The accused-appellant claimed his business was selling watches but he was nonetheless arrested, tried and foundguilty of illegally transporting marijuana. The trial court, disbelieving him, held it was high time to put him away andsentenced him to life imprisonment plus a fine of P20,000.00.

    1

    Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the M/V Wilcon 9 at about 8:30 in theevening, in Iloilo City. The PC officers who were in fact waiting for him simply accosted him, inspected his bag andfinding what looked liked marijuana leaves took him to their headquarters for investigation. The two bundles ofsuspect articles were confiscated from him and later taken to the NBI laboratory for examination. When they wereverified as marijuana leaves, an information for violation of the Dangerous Drugs Act was filed against him.

    2Later,

    the information was amended to include Farida Ali y Hassen, who had also been arrested with him that same eveningand likewise investigated.

    3Both were arraigned and pleaded not guilty.

    4Subsequently, the fiscal filed a motion to

    dismiss the charge against Ali on the basis of a sworn statement of the arresting officers absolving her after a'thorough investigation."

    5The motion was granted, and trial proceeded only against the accused-appellant, who was

    eventually convicted .6

    According to the prosecution, the PC officers had earlier received a tip from one of their informers that the accused-appellant was on board a vessel bound for Iloilo City and was carrying marijuana.

    7He was Identified by name.

    8

    Acting on this tip, they waited for him in the evening of June 25, 1984, and approached him as he descended fromthe gangplank after the informer had pointed to him.

    9They detained him and inspected the bag he was carrying. It

    was found to contain three kilos of what were later analyzed as marijuana leaves by an NBI forensic examiner,10

    whotestified that she conducted microscopic, chemical and chromatographic tests on them. On the basis of this finding,the corresponding charge was then filed against Aminnudin.

    In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag was his clothing consisting ofa jacket, two shirts and two pairs of pants.

    11He alleged that he was arbitrarily arrested and immediately handcuffed.

    His bag was confiscated without a search warrant. At the PC headquarters, he was manhandled to force him to admithe was carrying the marijuana, the investigator hitting him with a piece of wood in the chest and arms even as heparried the blows while he was still handcuffed.

    12He insisted he did not even know what marijuana looked like and

    that his business was selling watches and sometimes cigarettes.13

    He also argued that the marijuana he was allegedto have been carrying was not properly Identified and could have been any of several bundles kept in the stock roomof the PC headquarters.

    14

    The trial court was unconvinced, noting from its own examination of the accused that he claimed to have come toIloilo City to sell watches but carried only two watches at the time, traveling from Jolo for that purpose and spendingP107.00 for fare, not to mention his other expenses.

    15Aminnudin testified that he kept the two watches in a secret

    pocket below his belt but, strangely, they were not discovered when he was bodily searched by the arresting officersnor were they damaged as a result of his manhandling.

    16He also said he sold one of the watches for P400.00 and

    gave away the other, although the watches belonged not to him but to his cousin,17

    to a friend whose full name hesaid did not even know.

    18The trial court also rejected his allegations of maltreatment, observing that he had not

    sufficiently proved the injuries sustained by him.19

    There is no justification to reverse these factual findings, considering that it was the trial judge who had immediateaccess to the testimony of the witnesses and had the opportunity to weigh their credibility on the stand. Nuances oftone or voice, meaningful pauses and hesitation, flush of face and dart of eyes, which may reveal the truth or exposethe lie, are not described in the impersonal record. But the trial judge sees all of this, discovering for himself the truant

    fact amidst the falsities.

    The only exception we may make in this case is the trial court's conclusion that the accused-appellant was not reallybeaten up because he did not complain about it later nor did he submit to a medical examination. That is hardly fair orrealistic. It is possible Aminnudin never had that opportunity as he was at that time under detention by the PCauthorities and in fact has never been set free since he was arrested in 1984 and up to the present. No bail has beenallowed for his release.

    There is one point that deserves closer examination, however, and it is Aminnudin's claim that he was arrested andsearched without warrant, making the marijuana allegedly found in his possession inadmissible in evidence against

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    him under the Bill of Rights. The decision did not even discuss this point. For his part, the Solicitor General dismissedthis after an all-too-short argument that the arrest of Aminnudin was valid because it came under Rule 113, Section6(b) of the Rules of Court on warrantless arrests. This made the search also valid as incidental to a lawful arrest.

    It is not disputed, and in fact it is admitted by the PC officers who testified for the prosecution, that they had nowarrant when they arrested Aminnudin and seized the bag he was carrying. Their only justification was the tip theyhad earlier received from a reliable and regular informer who reported to them that Aminnudin was arriving in Iloilo by

    boat with marijuana. Their testimony varies as to the time they received the tip, one saying it was two days before thearrest,

    20another two weeks

    21and a third "weeks before June 25."

    22On this matter, we may prefer the declaration of

    the chief of the arresting team, Lt. Cipriano Querol, Jr., who testified as follows:

    Q You mentioned an intelligence report, you mean with respect to the coming ofIdel Aminnudin on June 25, 1984?

    A Yes, sir.

    Q When did you receive this intelligence report?

    A Two days before June 25, 1984 and it was supported by reliable sources.

    Q Were you informed of the coming of the Wilcon 9 and the possible trafficking ofmarijuana leaves on that date?

    A Yes, sir, two days before June 25, 1984 when we received this informationfrom that particular informer, prior to June 25, 1984 we have already reports ofthe particular operation which was being participated by Idel Aminnudin.

    Q You said you received an intelligence report two days before June 25, 1984with respect to the coming of Wilcon 9?

    A Yes, sir.

    Q Did you receive any other report aside from this intelligence report?

    A Well, I have received also other reports but not pertaining to the coming ofWilcon 9. For instance, report of illegal gambling operation.

    COURT:

    Q Previous to that particular information which you said two days before June 25,1984, did you also receive daily report regarding the activities of Idel Aminnudin

    A Previous to June 25, 1984 we received reports on the activities of IdelAminnudin.

    Q What were those activities?

    A Purely marijuana trafficking.

    Q From whom did you get that information?

    A It came to my hand which was written in a required sheet of information,maybe for security reason and we cannot Identify the person.

    Q But you received it from your regular informer?

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    A Yes, sir.

    ATTY. LLARIZA:

    Q Previous to June 25, 1984, you were more or less sure that Idel Aminnudin iscoming with drugs?

    A Marijuana, sir.

    Q And this information respecting Idel Aminnudin's coming to Iloilo withmarijuana was received by you many days before you received the intelligencereport in writing?

    A Not a report of the particular coming of Aminnudin but his activities.

    Q You only knew that he was coming on June 25,1984 two days before?

    A Yes, sir.

    Q You mean that before June 23, 1984 you did not know that minnudin wascoming?

    A Before June 23,1984, I, in my capacity, did not know that he was coming buton June 23, 1984 that was the time when I received the information that he wascoming. Regarding the reports on his activities, we have reports that he wasalready consummated the act of selling and shipping marijuana stuff.

    COURT:

    Q And as a result of that report, you put him under surveillance?

    A Yes, sir.

    Q In the intelligence report, only the name of Idel Aminnudin was mentioned?

    A Yes, sir.

    Q Are you sure of that?

    A On the 23rd he will be coming with the woman.

    Q So that even before you received the official report on June 23, 1984, you hadalready gathered information to the effect that Idel Aminnudin was coming toIloilo on June 25, 1984?

    A Only on the 23rd of June.

    Q You did not try to secure a search warrant for the seizure or search of thesubject mentioned in your intelligence report?

    A No, more.

    Q Why not?

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    A Because we were very very sure that our operation will yield positive result.

    Q Is that your procedure that whenever it will yield positive result you do not needa search warrant anymore?

    A Search warrant is not necessary.23

    That last answer is a cavalier pronouncement, especially as it comes from a mere lieutenant of the PC. The SupremeCourt cannot countenance such a statement. This is still a government of laws and not of men.

    The mandate of the Bill of Rights is clear:

    Sec. 2. The right of the people to be secure in their persons, houses, papers and effects againstunreasonable 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 bedetermined personally by the judge after examination under oath or affirmation of the complainantand the witnesses he may produce, and particularly describing the place to be searched and thepersons or things to be seized.

    In the case at bar, there was no warrant of arrest or search warrant issued by a judge after personal determination by

    him of the existence of probable cause. Contrary to the averments of the government, the accused-appellant was notcaught in flagrante nor was a crime about to be committed or had just been committed to justify the warrantless arrestallowed under Rule 113 of the Rules of Court. Even expediency could not be invoked to dispense with the obtentionof the warrant as in the case of Roldan v. Arca,

    24for example. Here it was held that vessels and aircraft are subject

    to warrantless searches and seizures for violation of the customs law because these vehicles may be quickly movedout of the locality or jurisdiction before the warrant can be secured.

    The present case presented no such urgency. From the conflicting declarations of the PC witnesses, it is clear thatthey had at least two days within which they could have obtained a warrant to arrest and search Aminnudin who wascoming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was Identified. The date of its arrival wascertain. And from the information they had received, they could have persuaded a judge that there was probablecause, indeed, to justify the issuance of a warrant. Yet they did nothing. No effort was made to comply with the law.The Bill of Rights was ignored altogether because the PC lieutenant who was the head of the arresting team, haddetermined on his own authority that a "search warrant was not necessary."

    In the many cases where this Court has sustained the warrantless arrest of violators of the Dangerous Drugs Act, ithas always been shown that they were caught red-handed, as a result of what are popularly called "buy-bust"operations of the narcotics agents.

    25Rule 113 was clearly applicable because at the precise time of arrest the

    accused was in the act of selling the prohibited drug.

    In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shownthat he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/VWilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of theother passengers innocently disembarking from the vessel. It was only when the informer pointed to him as thecarrier of the marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive fingerthat triggered his arrest. The Identification by the informer was the probable cause as determined by the officers (andnot a judge) that authorized them to pounce upon Aminnudin and immediately arrest him.

    Now that we have succeeded in re


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