E-CJS Assignment:

I. Law Enforcement

A. ArrestWarrantless ArrestSection 5, Rule 113

Cases: US v. Samonte, 16 Phil. 516Umil v. Ramos, 187 SCRA 311Milo vs. Salonga, 152 SCRA 113Sayo vs. Chief of Police, 80 Phil. 859People vs. Mengote, 210 SCRA 174People vs. Burgos, 144 SCRA 1People vs. Sucro, 195 SCRA 388Go vs. Court of Appeals, 206 SCRA 138Ali vs. Castro, 151 SCRA 279People vs. Valdez, GR 127081, March 3, 1999People vs. Tangliben, 184 SCRA 220People vs. Malmstedt, 198 SCRA 401People vs. Claudio, 160 SCRA 646People vs. Montilla, G.R. 123872, 285 SCRA 703,People vs. Acol, 232 SCRA 406People vs. Tonog, Jr. 205 SCRA 774People vs. Gerente, 219 SCRA 756People vs. Alvario, 275 SCRA 529

B. Search and seizures

Rule 126, Rules of Court

Warrantless searches and seizuresCases: Galvante v. Casimiro, 552 SCRA 304People vs. Burgos, 144 SCRA 01Roan vs. Gonzales, 145 SCRA 687Lim vs. Ponce de Leon, 66 SCRA 301Mata vs. Bayona, 128 SCRA 388Prudente vs. Judge Dayrit, 180 SCRA 69Burgos, Sr. vs. Chief of Staff, 133 SCRA 815Quintero vs. NBI, 162 SCRA 467Tambasen vs. People, GR 89103, July 14, 1995Olaes vs. People. 155 SCRA 486People vs. Court of Appeals, GR 126379, 291 SCRA 400People vs. Judge Estrella Estrada, GR 124461, September 25, 1998

RemediesPeople v. Kamad, 610 SCRA 295Malillin v. People, 553 SCRA 616Nala v. Baroso, Jr., G.R. No. 153087, August 7, 2003Silva v. Presiding Judge, Regional Trial Court of Negros, Oriental, Branch XXXIII, 203 SCRA 140People v. Gesmundo, G.R. No. 89373. March 9, 1993

C. Miranda RightsLuz v. People, G. R. No. 197788, February 29, 2012People v. Mojello, G.R. No. 145566, March 9, 2004Ho Wai Pang v. People of the Philippines, G.R. No. 176229, October 19, 2011)People v. Lauga, G.R. No. 186228, March 15, 2010

D. Custodial Investigation and Confession

Republic Act 7438

Custodial investigation rightsPeople v. Judge Ayson, G.R. 85215, July 7, 1989, 175 SCRA 216Kimpo v. Sandiganbayan, 232 SCRA 53People v. Endino, G.R. 133026People v. Marra, 236 SCRA 565

Extra-judicial confessionPeople v. Galit, 135 SCRA 465Stonehill v. Diokno, supraPeople v.Bagalasa, 39 SCRA 236People v. Penillos, 205 SCRA 546People v. Olvis, 154 SCRA 525People v. Morico, G.R. 92660, July 14, 1994People v. Tomaquin, G.R. 133188, July 23, 2004People v. Lucero, G.R. 97936, May 29, 1995

E. Filing of criminal complaints

Rule 110

[G.R. No. 5649. September 6, 1910. ]

THE UNITED STATES, Plaintiff-Appellee, v. ISAAC SAMONTE, Defendant-Appellant.

Godofredo Reyes, for Appellant.

Attorney-General Villamor, for Appellee.

SYLLABUS

1. PEACE OFFICERS; RIGHT TO ARREST WITHOUT WARRANT. — Any officer charged with the preservation of the public peace may arrest, without a warrant, any person who is committing, or has committed, a breach of the peace in his presence. (3 Cyc., 881; Carolina v. McAfee, 10 L.R.A., 607; Commonwealth v. Tobin, 11 Am. Rep., 375; People v. Rounds, 35 N.W., 77; Douglas v. Barber, 28 Atl., 805.)

2. ID.; ID.; "IN THE PRESENCE OR WITHIN THE VIEW," CONSTRUED. — An offense is committed in the presence or within the view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or hears the disturbance created thereby and proceeds at once to the scene thereof; or the offense is continuing, or has not been consummated, at the time the arrest is made. (3 Cyc., 886; Ramsey v. State, 17 S.E., 613; Dilger v. Com., 11 S.W., 651; State v. McAfee, 12 S.E., 435; State v. Williams, 15 S.E., 554; Hawkins v. Lutton, 70 N.W., 483.)

3. ID.; RESISTING AN OFFICE; ATTEMPT AGAINST THE AUTHORITIES. — Any person who attacks the authorities of the Government, or their agents, or employs force against them, or gravely intimidates them, or offers an equally grave resistance while they are discharging the functions of their office or on the occasion thereof, is guilty of an attempt against the authorities. (Art. 249, 250, Penal Code.)

D E C I S I O N

TRENT, J. :

The defendant, Isaac Samonte, was tried in the Court of First Instance of the Province of Tayabas on a charge of criminal attempt against an agent of the authorities, and sentenced to one year eight months and twenty-one days of prison correccional, to pay a fine of P65, in case of insolvency to suffer the corresponding subsidiary imprisonment, to the accessory penalties provided in article 61 of the Penal Code, and to pay the costs. He appealed to this court.

Counsel for appellant insists, first, that the prosecution has failed to establish beyond a reasonable doubt that the policeman, Gregorio Glindo, attempted to arrest the accused; and, second, that if said policeman did attempt to arrest the defendant at this place he, not having a judicial warrant, was not, under the circumstances, authorized to make the arrest which he attempted to make.

About 8 o’clock on the night of September 6, 1908, the appellant, Isaac Samonte, and Basilio Rabe were together in the house of one Demetrio Pandeñio in the barrio of Macalalong, jurisdiction of Pitogo Province of Tayabas. They both left this house and met shortly afterwards in the street (Verdades) in said barrio. On meeting there they became engaged in quarrel, the appellant knocking or pushing Rabe down, then proceeded to maltreat him. At this moment Rabe called "police! police!" Gregorio Glindo, a municipal policeman of Pitogo, being on patrol duty that night in said barrio, hearing these words went to the scene, arriving just as the offended party

was getting up, and attempted to arrest the appellant, saying to him: "In the name of the United States, don’t move." The appellant, on seeing the policeman and hearing this command, said: "Don’t come near, because I will take your life." The policeman continued toward the appellant and when very near him the appellant struck at the policeman with a knife. On account of this resistance the policeman could not arrest the appellant at the time, so he went immediately to the house of the councilman of that barrio, Demetrio Pandeñio, and reported the matter. Pandeñio ordered him to arrest the Appellant. He returned to obey this order, being followed by Pandeñio. They found the appellant in a place called Mutingbayan. The policeman attempted to take hold of the appellant, but he resisted, striking at the policeman again with his knife. The councilman then ordered the appellant to submit himself, and on receiving this order the appellant said: "I do not recognize anyone," and struck at the councilman with the knife.

The appellant was not arrested on that night on account of this resistance. He did not lay hands on or touch with his knife either the policeman or the councilman, but he did refuse to submit himself to the authorities, and resisted arrest. The policeman did not see the appellant knock the priest down, neither did he see him kick the said priest, but he heard the cries of the priest calling for help, saying "police! police!" and when he arrived on the scene the priest was just getting up and freeing himself from the Appellant. When the policeman heard these cries for help he was only a very short distance — some 6 or 8 brazas — away, and when he arrived the trouble had not terminated, although no active fighting took place after his arrival. Under these facts and circumstances it was the duty of this police officer to stop this disturbance by placing the defendant under arrest.

Any officer charged with the preservation of the public peace may arrest, without a warrant, any person who is committing, or has committed, a breach of the peace in his presence. (3 Cyc., 881; Carolina v. McAfee., 10 L.R.A., 607; Commonwealth v. Tobin, 11 Am. Rep., 375; People v. Rounds, 35 N.W., 77; and Douglas v. Barber, 28 Atl. Rep., 805.)

An offense is committed in the presence or within the view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or hears the disturbances created thereby and proceeds at once to the scene thereof; or the offense is continuing, or has not been consummated, at the time the arrest is made. (3 Cyc., 886; Ramsey v. State, 17 S. E. 613; Dilger v. Com., 11 S.W., State v. McAfee, 12 S.E., 453; State v. Williams, 15 S.E., 554; and Hawkins v. Lutton, 70 N.W., 483.)

In the case at bar Gregorio Glindo, being a peace officer, not only had authority to arrest the defendant at the time, but it was his duty to do so, he having heard the priest call for help and having arrived on the scene before the disturbance had finally ended.

Article 249 of the Penal Code provides that the following commit criminal attempt:chanrob1es virtual 1aw library

x       x       x

"2. Those who attack the authorities or their agents, or employee force against them, or gravely intimidate them, or offer an equally grave resistance while they are discharging the functions of their office or on occasion thereof."cralaw virtua1aw library

Article 250 of the same code fixes the penalty to be imposed for those guilty of an attempt against the authorities or their agents, as provided in the above article.

The accused in this case, after an attempt had been made to arrest him by a duly authorized police officer in the discharge of his duty as such, offered grave resistance by refusing to submit himself to arrest and by striking at the policeman with a knife, thereby attempting a personal injury. Although the policeman was not wounded or touched by the accused, these facts do not relieve him from criminal responsibility.

The penalty imposed by the court below being in accordance with the law

and the proofs presented, the same is hereby affirmed, with costs against the Appellant. So ordered.

UMIL VS. RAMOS [187 SCRA 311; G.R. NO. 81567; 3 OCT 1991]

Wednesday, February 04, 2009 Posted by Coffeeholic Writes Labels: Case Digests, Political Law

Facts: On 1 February 1988, military agents were dispatched to the St. Agnes Hospital, Roosevelt Avenue, Quezon City, to verify a confidential information which was received by their office, about a "sparrow man" (NPA member) who had been admitted to the said hospital with a gunshot wound. That the wounded man in the said hospital was among the five (5) male "sparrows" who murdered two (2) Capcom mobile patrols the day before, or on 31 January 1988 at about 12:00 o'clock noon, before a road hump along Macanining St., Bagong Barrio, Caloocan City. The wounded man's name was listed by the hospital management as "Ronnie Javellon," twenty-two (22) years old of Block 10, Lot 4, South City Homes, Biñan, Laguna however it was disclosed later that the true name of the wounded man was Rolando Dural. In view of this verification, Rolando Dural was transferred to the Regional Medical Servicesof the CAPCOM, for security reasons. While confined thereat, he was positively identified by the eyewitnesses as the one who murdered the 2 CAPCOM mobile patrols.

Issue: Whether or Not Rolando was lawfully arrested.

Held: Rolando Dural was arrested for being a member of the NPA, an outlawed subversive organization. Subversion being a continuing offense, the arrest without warrant is justified as it can be said that he was committing as offense when arrested. The crimes rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance therefore in connection therewith constitute direct assaults against the state and are in the nature of continuing crimes.

G.R. No. L-37007 July 20, 1987

RAMON S. MILO, in his capacity as Assistant Provincial Fiscal of Pangasinan, and ARMANDO VALDEZ,petitioners, vs.ANGELITO C. SALANGA, in his capacity as Judge of the Court of First Instance of Pangasinan (Branch IV), and JUAN TUVERA, SR., respondents.

GANCAYCO, J.:

This is a petition for review on certiorari of an order of the Court of First Instance of Pangasinan, Third Judicial District, in Criminal Case No. D-529 entitled "The People of the Philippines versus Juan Tuvera, Sr., et al.," granting the motion to quash the information filed by accused Juan Tuvera, Sr., herein respondent. The issue is whether a barrio captain can be charged of arbitrary detention.

The facts are as follows:

On October 12, 1972, an information for Arbitrary Detention was filed against Juan Tuvera, Sr., Tomas Mendoza and Rodolfo Mangsat, in the Court of First Instance of Pangasinan, which reads as follows:

The undersigned Assistant Provincial Fiscal accuses Juan Tuvera, Sr., Tomas Mendoza and Rodolfo Mangsat alias Rudy, all of Manaoag, Pangasinan, of the crime of ARBITRARY DETENTION, committed as follows:

That on or about the 21st day of April 1973, at around 10:00 o'clock in the evening, in barrio Baguinay, Manaoag, Pangasinan, Philippines and within the jurisdiction of this Honorable Court, accused Juan Tuvera, Sr., a barrio

captain, with the aid of some other private persons, namely Juan Tuvera, Jr., Bertillo Bataoil and one Dianong, maltreated one Armando Valdez by hitting with butts of their guns and fists blows and immediately thereafter, without legal grounds, with deliberate intent to deprive said Armando Valdez of his constitutional   liberty,  accused Barrio   captain   Juan  Tuvera,  Sr.,  Cpl.  Tomas Mendoza   and   Pat.   Rodolfo   Mangsat,   members   of   the   police   force   of Mangsat,   Pangasinan   conspiring,   confederating  and  helping  one  another, did, then and there, willfully, unlawfully and feloniously, lodge and lock said Armando Valdez inside the municipal jail of Manaoag, Pangasinan for about eleven (11) hours. (Emphasis supplied.)

CONTRARY TO ARTICLE 124 of the R.P.C.

Dagupan City, October 12, 1972.

(SGD.) VICENTE C. CALDONAAssistant Provincial Fiscal

All the accused, including respondent Juan Tuvera, Sr., were arraigned and pleaded not guilty.

On April 4, 1973, Tuvera filed a motion to quash the information on the ground that the facts charged do not constitute an offense and that the proofs adduced at the investigation are not sufficient to support the filing of the information. Petitioner Assistant Provincial Fiscal Ramon S. Milo filed an opposition thereto.

Finding that respondent Juan Tuvera, Sr. was not a public officer who can be charged with Arbitrary Detention, respondent Judge Angelito C. Salanga granted the motion to quash in an order dated April 25, 1973.

Hence, this petition.

Arbitrary Detention is committed by a public officer who, without legal grounds, detains a person.1 The elements of this crime are the following:

1. That the offender is a public officer or employee.

2. That he detains a person.

3. That the detention is without legal grounds.2

The ground relied upon by private respondent Tuvera for his motion to quash the information which was sustained by respondent Judge, is that the facts charged do not constitute an offense,3 that is, that the facts alleged in the information do not constitute the elements of Arbitrary Detention.

The Information charges Tuvera, a barrio captain, to have conspired with Cpl. Mendoza and Pat. Mangsat, who are members of the police force of Manaoag, Pangasinan in detaining petitioner Valdez for about eleven (11) hours in the municipal jail without legal ground. No doubt the last two elements of the crime are present.

The only question is whether or not Tuvera, Sr., a barrio captain is a public officer who can be liable for the crime of Arbitrary Detention.

The public officers liable for Arbitrary Detention must be vested with authority to detain or order the detention of persons accused of a crime. Such public officers are the policemen and other agents of the law, the judges or mayors.4

Respondent Judge Salanga did not consider private respondent Tuvera as such public officer when the former made this finding in the questioned order:

Apparently, if Armando Valdez was ever jailed and detained more than six (6) hours, Juan Tuvera, Sr., has nothing to do with the same because he is not in any way connected with the Police Force of Manaoag, Pangasinan. Granting that it was Tuvera, Sr., who ordered Valdez arrested, it was not he who detained and jailed him because he has no such authority vested in him as a mere Barrio Captain of Barrio Baguinay, Manaoag, Pangasinan. 5

In line with the above finding of respondent Judge Salanga, private respondent Tuvera asserts that the motion to quash was properly sustained for the following reasons: (1) That he did not have the authority to make arrest, nor jail and detain petitioner Valdez as a mere barrio captain;6 (2) That he is neither a peace officer nor a policeman,7(3) That he was not a public official;8 (4) That he had nothing to do with the detention of petitioner Valdez;9 (5) That he is not connected directly or indirectly in the administration of the Manaoag Police Force;10 (6) That barrio captains on April 21, 1972 were not yet considered as persons in authority and that it was only upon the promulgation of Presidential Decree No. 299 that Barrio Captain and Heads of Barangays were decreed among those who are persons in authority;11 and that the proper charge was Illegal Detention and Not Arbitrary Detention.12

We disagree.

Long before Presidential Decree 299 was signed into law, barrio lieutenants (who were later named barrio captains and now barangay captains) were recognized as persons in authority. In various cases, this Court deemed them as persons in authority, and convicted them of Arbitrary Detention.

In U.S.   vs.   Braganza,13 Martin Salibio, a barrio lieutenant, and Hilario Braganza, a municipal councilor, arrested Father Feliciano Gomez while he was in his church. They made him pass through the door of the vestry and afterwards took him to the municipal building. There, they told him that he was under arrest. The priest had not committed any crime. The two public officials were convicted of Arbitrary Detention.14

In U.S. vs. Gellada,15 Geronimo Gellada, a barrio lieutenant, with the help of Filoteo Soliman, bound and tied his houseboy Sixto Gentugas with a rope at around 6:00 p.m. and delivered him to the justice of the peace. Sixto was detained during the whole night and until 9:00 a.m. of the next day when he was ordered released by the justice of the peace because he had not committed any crime, Gellada was convicted of Arbitrary Detention.16

Under Republic Act No. 3590, otherwise known as The Revised Barrio Charter, the powers and duties of a barrio captain include the following: to look after the maintenance of public order in the barrio and to assist the municipal mayor and the municipal councilor in charge of the district in the performance of their duties in such barrio;17 to look after the general welfare of the barrio;18 to enforce all laws and ordinances which are operative within the barrio;19 and to organize and lead an emergency group whenever the same may be necessary for the maintenance of peace and order within the barrio.20

In his treatise on Barrio Government Law and Administration, Professor Jose M. Aruego has this to say about the above-mentioned powers and duties of a Barrio Captain, to wit:

"Upon the barrio captain depends in the main the maintenance of public order in the barrio. For public disorder therein, inevitably people blame him.

"In the event that there be a disturbing act to said public order or a threat to disturb public order, what can the barrio captain do? Understandably, he first resorts to peaceful measures. He may take preventive measures like placing the offenders under surveillance and persuading them, where possible, to behave well, but when necessary, he may subject them to the full force of law.

"He is a peace officer in the barrio considered under the law as a person in authority. As such, he  may  make   arrest   and   detain   persons  within   legal limits.21 (Emphasis supplied.)

One need not be a police officer to be chargeable with Arbitrary Detention. It is accepted that other public officers like judges and mayors, who act with abuse of their functions, may be guilty of this crime.22 A perusal of the powers and function vested in mayors would show that they are similar to those of a barrio captain23 except that in the case of the latter, his territorial jurisdiction is smaller. Having the same duty of maintaining peace and order, both must be and are given the authority to detain or order detention. Noteworthy is the fact that even private respondent Tuvera himself admitted that with the aid of his rural police, he as a barrio captain, could have led the arrest of petitioner Valdez.24

From the foregoing, there is no doubt that a barrio captain, like private respondent Tuvera, Sr., can be held liable for Arbitrary Detention.

Next, private respondent Tuvera, Sr. contends that the motion to quash was validly granted as the facts and evidence on record show that there was no crime of Arbitrary Detention;25 that he only sought the aid and assistance of the Manaoag Police Force;26 and that he only accompanied petitioner Valdez to town for the latter's personal safety.27

Suffice it to say that the above allegations can only be raised as a defense at the trial as they traverse what is alleged in the Information. We have repeatedly held that Courts, in resolving a motion to quash, cannot consider facts contrary to those alleged in the information or which do not appear on the face of the information. This is because a motion to quash is a hypothetical admission of the facts alleged in the information.28 Matters of defense cannot be proved during the hearing of such a motion, except where the Rules expressly permit, such as extinction of criminal liability, prescription, and former jeopardy.29 In the case of U.S. vs. Perez,30 this Court held that a motion to quash on the ground that the facts charged do not constitute an offense cannot allege new facts not only different but diametrically opposed to those alleged in the complaint. This rule admits of only one exception and that is when such facts are admitted by the prosecution.31lawphi1

Lastly, private respondent claims that by the lower court's granting of the motion to quash jeopardy has already attached in his favor32 on the ground that here, the case was dismissed or otherwise terminated without his express consent.

Respondent's contention holds no water. An order granting a motion to quash, unlike one of denial, is a final order. It is not merely interlocutory and is therefore immediately appealable. The accused cannot claim double jeopardy as the dismissal was secured not only with his consent but at his instance.33

WHEREFORE, in view of the foregoing, the Petition for certiorari is GRANTED. The questioned Order of April 25, 1973 in Criminal Case No. D-529 is hereby set aside. Let this case be remanded to the appropriate trial court for further proceedings. No pronouncement as to costs.

SO ORDERED.

SAYO VS. CHIEF OF POLICE OF MANILA80 PHIL 859 (1948)

FACTS: Upon complaint of one Bernardino Malinao, charging the petitioners with having committed the crime of robbery, Benjamin Dumlao, a policeman of the City of Manila, arrested the petitioners on April 2, 1948, and presented a complaint against them with the fiscal's office of Manila. Until April 7, 1948, the petitioners were still detained or under arrest, and the city fiscal had not yet released or filed against them an information with the proper court of justice.

ISSUE: Whether or not petitioners had been illegally restrained of their liberty?

RULING: Yes. Petitioners are being illegally restrained of their liberty, and their release ishereby ordered unless they are now detained by virtue of a process issued by acompetent court of justice. Article 125 of the Revised Penal Code provides that “the penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of six hours.” Policeman Dumlao may have acted in good faith in believing that he had complied with the mandate of article 125 by delivering the petitioners within six hours to the office of the city fiscal, and the latter may have ignored the fact that the petitioners were being actually detained when said policeman filed a complaint against them with the city fiscal.

G.R. No. 87059 June 22, 1992

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ROGELIO MENGOTE y TEJAS, accused-appellant.

CRUZ, J.:

Accused-appellant Rogelio Mengote was convicted of illegal possession of firearms on the strength mainly of the stolen pistol found on his person at the moment of his warrantless arrest. In this appeal, he pleads that the weapon was not admissible as evidence against him because it had been illegally seized and was therefore the fruit of the poisonous tree. The Government disagrees. It insists that the revolver was validly received in evidence by the trial judge because its seizure was incidental to an arrest that was doubtless lawful even if admittedly without warrant.

The incident occurred shortly before noon of August 8, 1987, after the Western Police District received a telephone call from an informer that there were three suspicious-looking persons at the corner of Juan Luna and North Bay Boulevard in Tondo, Manila. A surveillance team of plainclothesmen was forthwith dispatched to the place. As later narrated at the trial by Patrolmen Rolando Mercado and Alberto Juan, 1 they there saw two men "looking from side to side," one of whom was holding his abdomen. They approached these persons and identified themselves as policemen, whereupon the two tried to run away but were unable to escape because the other lawmen had surrounded them. The suspects were then searched. One of them, who turned out to be the accused-appellant, was found with a .38 caliber Smith and Wesson revolver with six live bullets in the chamber. His companion, later identified as Nicanor Morellos, had a fan knife secreted in his front right pants pocket. The weapons were taken from them. Mengote and Morellos were then turned over to police headquarters for investigation by the Intelligence Division.

On August 11, 1987, the following information was filed against the accused-appellant before the Regional Trial Court of Manila:

The undersigned accuses ROGELIO MENGOTE y TEJAS of a violation of Presidential Decree No. 1866, committed as follows:

That on or about August 8, 1987, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and knowingly have in his possession and under his custody and control a firearm, to wit:

one (1) cal. 38 "S & W" bearingSerial No. 8720-T

without first having secured the necessary license or permit therefor from the proper authorities.

Besides the police officers, one other witness presented by the prosecution was Rigoberto Danganan, who identified the subject weapon as among the articles stolen from him during the robbery in his house in Malabon on June 13, 1987. He pointed to Mengote as one of the robbers. He had duly reported the robbery to the police, indicating the articles stolen from him, including the revolver. 2 For his part, Mengote made no effort to prove that he owned the firearm or that he was licensed to possess it and claimed instead that the weapon had been "Planted" on him at the time of his arrest. 3

The gun, together with the live bullets and its holster, were offered as Exhibits A, B, and C and admitted over the objection of the defense. As previously stated, the weapon was the principal evidence that led to Mengote's conviction for violation of P.D. 1866. He was sentenced to reclusionperpetua. 4

It is submitted in the Appellant's Brief that the revolver should not have been admitted in evidence because of its illegal seizure. no warrant therefor having been previously obtained. Neither could it have been seized as an incident of a lawful arrest because the arrest of Mengote was itself unlawful,

having been also effected without a warrant. The defense also contends that the testimony regarding the alleged robbery in Danganan's house was irrelevant and should also have been disregarded by the trial court.

The following are the pertinent provision of the Bill of Rights:

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.

There is no question that evidence obtained as a result of an illegal search or seizure is inadmissible in any proceeding for any purpose. That is the absolute prohibition of Article III, Section 3(2), of the Constitution. This is the celebrated exclusionary rule based on the justification given by Judge Learned Hand that "only in case the prosecution, which itself controls the seizing officials, knows that it cannot profit by their wrong will the wrong be repressed." The Solicitor General, while conceding the rule, maintains that it is not applicable in the case at bar. His reason is that the arrest and search of Mengote and the seizure of the revolver from him were lawful under Rule 113, Section 5, of the Rules of Court reading as follows:

Sec. 5. Arrest  without  warrant  when   lawful. — A peace officer or private person may, without a warrant, arrest a person;

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

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases failing under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7.

We have carefully examined the wording of this Rule and cannot see how we can agree with the prosecution.

Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee from a penal institution when he was arrested. We therefore confine ourselves to determining the lawfulness of his arrest under either Par. (a) or Par. (b) of this section.

Par. (a) requires that the person be arrested (1) after he has committed or while he is actually committing or is at least attempting to commit an offense, (2) in the presence of the arresting officer.

These requirements have not been established in the case at bar. At the time of the arrest in question, the accused-appellant was merely "looking from side to side" and "holding his abdomen," according to the arresting officers themselves. There was apparently no offense that had just been committed or was being actually committed or at least being attempted by Mengote in their presence.

The Solicitor General submits that the actual existence of an offense was not necessary as long as Mengote's acts "created a reasonable suspicion on the

part of the arresting officers and induced in them the belief that an offense had been committed and that the accused-appellant had committed it." The question is, What offense? What offense could possibly have been suggested by a person "looking from side to side" and "holding his abdomen" and in a place not exactly forsaken?

These are certainly not sinister acts. And the setting of the arrest made them less so, if at all. It might have been different if Mengote bad been apprehended at an ungodly hour and in a place where he had no reason to be, like a darkened alley at 3 o'clock in the morning. But he was arrested at 11:30 in the morning and in a crowded street shortly after alighting from a passenger jeep with I his companion. He was not skulking in the shadows but walking in the clear light of day. There was nothing clandestine about his being on that street at that busy hour in the blaze of the noonday sun.

On the other hand, there could have been a number of reasons, all of them innocent, why his eyes were darting from side to side and be was holding his abdomen. If they excited suspicion in the minds of the arresting officers, as the prosecution suggests, it has nevertheless not been shown what their suspicion was all about. In fact, the policemen themselves testified that they were dispatched to that place only because of the telephone call from the informer that there were "suspicious-looking" persons in that vicinity who were about to commit a robbery at North Bay Boulevard. The caller did not explain why he thought the men looked suspicious nor did he elaborate on the impending crime.

In the recent case of People   v.   Malmstedt, 5 the Court sustained the warrantless arrest of the accused because there was a bulge in his waist that excited the suspicion of the arresting officer and, upon inspection, turned out to be a pouch containing hashish. InPeople v. Claudio, 6 the accused boarded a bus and placed the buri bag she was carrying behind the seat of the arresting officer while she herself sat in the seat before him. His suspicion aroused, be surreptitiously examined the bag, which he found to contain marijuana. He then and there made the warrantless arrest and seizure that we subsequently upheld on the ground that probable cause had been sufficiently established.

The case before us is different because there was nothing to support the arresting officers' suspicion other than Mengote's darting eyes and his hand on his abdomen. By no stretch of the imagination could it have been inferred from these acts that an offense had just been committed, or was actually being committed, or was at least being attempted in their presence.

This case is similar to People v. Aminnudin, 7 where the Court held that the warrantless arrest of the accused was unconstitutional. This was effected while be was coming down a vessel, to all appearances no less innocent than the other disembarking passengers. He had not committed nor was be actually committing or attempting to commit an offense in the presence of the arresting officers. He was not even acting suspiciously. In short, there was no probable cause that, as the prosecution incorrectly suggested, dispensed with the constitutional requirement of a warrant.

Par. (b) is no less applicable because its no less stringent requirements have also not been satisfied. The prosecution has not shown that at the time of Mengote's arrest an offense had in fact just been committed and that the arresting officers had personal  knowledge of facts indicating that Mengote had committed it. All they had was hearsay information from the telephone caller, and about a crime that had yet to be committed.

The truth is that they did not know then what offense, if at all, had been committed and neither were they aware of the participation therein of the accused-appellant. It was only later, after Danganan had appeared at the Police headquarters, that they learned of the robbery in his house and of Mengote's supposed involvement therein. 8 As for the illegal possession of the firearm found on Mengote's person, the policemen discovered this only after he had been searched and the investigation conducted later revealed that he was not its owners nor was he licensed to possess it.

Before these events, the Peace officers had no knowledge even of Mengote' identity, let alone the fact (or suspicion) that he was unlawfully carrying a firearm or that he was involved in the robbery of Danganan's house.

In the landmark case of People v. Burgos, 9 this Court declared:

Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personal knowledge of the fact. The offense must also be committed in his   presence   or   within   his   view. (Sayo v. Chief of Police, 80 Phil. 859). (Emphasis supplied)

xxx xxx xxx

In arrests without a warrant under Section 6(b), however, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually  have been committed first. That a crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator. (Emphasis supplied)

This doctrine was affirmed in Alih v. Castro, 10 thus:

If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection with a crime about to be committed, being committed, or just committed, what was that crime? There is no allegation in the record of such a falsification. Parenthetically, it may be observed that under the Revised Rule 113, Section 5(b), the   officer  making   the  arrest  must   have  personal knowledge of the ground therefor as stressed in the recent case of People v. Burgos.(Emphasis supplied)

It would be a sad day, indeed, if any person could be summarily arrested and searched just because he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a peace officer could clamp handcuffs on any person with a shifty look on suspicion that he may have committed a criminal act or is actually committing or attempting it. This simply cannot be done in a free society. This is not a police state where order is exalted over liberty or, worse, personal malice on the part of the arresting officer may be justified in the name of security.

There is no need to discuss the other issues raised by the accused-appellant as the ruling we here make is sufficient to sustain his exoneration. Without the evidence of the firearm taken from him at the time of his illegal arrest, the prosecution has lost its most important exhibit and must therefore fail. The testimonial evidence against Mengote (which is based on the said firearm) is not sufficient to prove his guilt beyond reasonable doubt of the crime imputed to him.

We commend Atty. Violeta Calvo-Drilon for her able and spirited defense of the accused-appellant not only in the brief but also in the reply brief, which she did not have to file but did so just the same to stress the constitutional rights of her client. The fact that she was acting only as a counsel de oficio with no expectation of material reward makes her representation even more commendable.

The Court feels that if the peace officers had been more mindful of the provisions of the Bill of Rights, the prosecution of the accused-appellant might have succeeded. As it happened, they allowed their over-zealousness to get the better of them, resulting in their disregard of the requirements of a valid search and seizure that rendered inadmissible the vital evidence they had invalidly seized.

This should be a lesson to other peace officers. Their impulsiveness may be the very cause of the acquittal of persons who deserve to be convicted, escaping the clutches of the law because, ironically enough, it has not been observed by those who are supposed to enforce it.

WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The accused-appellant is ACQUITTED and ordered released immediately unless he is validly detained for other offenses. No costs.

SO ORDERED.

G.R. No. L-68955 September 4, 1986

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.RUBEN BURGOS y TITO, defendant-appellant.

GUTIERREZ, JR., J.:

This is an appeal from the decision of the Regional Trial Court of Davao del Sur, 11 th Judicial Region, Digos, Davao del Sur convicting defendant- appellant Ruben Burgos y Tito of The crime of Illegal Possession of Firearms in Furtherance of Subversion. The dispositive portion of the decision reads:

WHEREFORE, finding the guilt of accused Ruben Burgos sufficiently established beyond reasonable doubt, of the offense charges , pursuant to Presidential Decree No. 9, in relation to General Order No. 6, dated September 22, 1972, and General Order No. 7, dated September 23, 1972, in relation further to Presidential Decree No. 885, and considering that the firearm subject of this case was not used in the circumstances as embraced in paragraph I thereof, applying the provision of indeterminate sentence law, accused Ruben Burgos is hereby sentenced to suffer an imprisonment of twenty (20) years of reclusion temporal maximum, as minimum penalty, to reclusion perpetua, as maximum penalty, pursuant to sub-paragraph B, of Presidential Decree No. 9, as aforementioned, with accessory penalties, as provided for by law.

As a result of this judgment, the subject firearm involved in this case (Homemade revolver, caliber .38, Smith and Wesson, with Serial No. 8.69221) is hereby ordered confiscated in favor of the government, to be disposed of in accordance with law. Likewise, the subversive documents, leaflets and/or propaganda seized are ordered disposed of in accordance with law.

The information charged the defendant-appellant with the crime of illegal possession of firearm in furtherance of subversion in an information which reads as follows:

That in the afternoon of May 13, 1982 and thereabout at Tiguman, Digos, Davao del Sur, Philippines, within the jurisdiction of this Court, the above- named accused with intent to possess and without the necessary license, permit or authority issued by the proper government agencies, did then and there wilfully, unlawfully and feloniously keep, possess, carry and have in his possession, control and custody one (1) homemade revolver, caliber .38, make Smith and Wesson, with Serial No. 8.69221, which firearm was issued to and used by the accused at Tiguman, Digos, Davao del Sur, his area of operations by one Alias Commander Pol for the New People's Army (NPA), a subversive organization organized for the purpose of overthrowing the Government of the Republic of the Philippines through lawless and violent means, of which the accused had knowledge, and which firearm was used by the accused in the performance of his subversive tasks such as the recruitment of New Members to the NPA and collection of contributions from the members.

CONTRARY TO LAW.

The evidence for the prosecution is summarized in the decision of the lower court as follows:

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. . . Through the testimony of Pat. Pepito Bioco, and Sgt. Romeo Taroy, it appears that by virtue of an intelligent information obtained by the Constabulary and INP units, stationed at Digos, Davao del Sur, on May 12, 1982, one Cesar Masamlok personally and voluntarily surre0ndered to the authorities at about 9:00 o'clock A.M. at Digos, Davao del Sur Constabulary Headquarters, stating that he was forcibly recruited by accused Ruben Burgos as member of the NPA, threatening him with the use of firearm against his life, if he refused.

Along with his recruitment, accused was asked to contribute one (1) chopa of rice and one peso (P1.00) per month, as his contribution to the NPA TSN, page 5, Hearing-October 14, 1982).

Immediately, upon receipt of said information, a joint team of PC-INP units, composed of fifteen (15) members, headed by Captain Melchesideck Bargio, (PC), on the following day, May 13, 1982, was dispatched at Tiguman; Davao del Sur, to arrest accused Ruben Burgos. The team left the headquarter at 1:30 P.M., and arrived at Tiguman, at more or less 2:00 o'clock PM where through the help of Pedro Burgos, brother of accused, the team was able to locate accused, who was plowing his field. (TSN, pages 6-7, Hearing-October 14, 1982).

Right in the house of accused, the latter was caned by the team and Pat. Bioco asked accused about his firearm, as reported by Cesar Masamlok. At first accused denied possession of said firearm but later, upon question profounded by Sgt. Alejandro Buncalan with the wife of the accused, the latter pointed to a place below their house where a gun was buried in the ground. (TSN, page 8, Hearing-October 14, 1982).

Pat. Bioco then verified the place pointed by accused's wife and dug the grounds, after which he recovered the firearm, Caliber .38 revolver, marked as Exhibit "A" for the prosecution.

After the recovery of the firearm, accused likewise pointed to the team, subversive documents which he allegedly kept in a stock pile of qqqcogon at a distance of three (3) meters apart from his house. Then Sgt. Taroy accordingly verified beneath said cogon grass and likewise recovered documents consisting of notebook colored maroon with spiral bound, Exhibit "B" for the prosecution; a pamphlet consisting of eight (8) leaves, including the front and back covers entitled Ang Bayan, Pahayagan ng Partido Komunista ng Pilipinas, Pinapatnubayan ng Marxismo, Leninismo Kaisipang Mao qqqZedong dated December 31, 1980, marked as Exhibit "C", and another pamphlet Asdang Pamantalaang Masa sa Habagatang Mindanao, March and April 1981 issue, consisting of ten (10) pages, marked as Exhibit "D" for the prosecution.

Accused, when confronted with the firearm Exhibit "A", after its recovery, readily admitted the same as issued to him by Nestor Jimenez, otherwise known as a certain Alias Pedipol, allegedly team leader of the sparrow unit of New People's Army, responsible in the liquidation of target personalities, opposed to NPA Ideological movement, an example was the killing of the late Mayor Llanos and Barangay Captain of Tienda Aplaya Digos, Davao del Sur. (TSN, pages 1-16, Hearing-October 14,1982).

To prove accused's subversive activities, Cesar Masamlok, a former NPA convert was presented, who declared that on March 7, 1972, in his former residence at Tiguman Digos, Davao del Sur, accused Ruben Burgos, accompanied by his companions Landrino Burgos, Oscar Gomez and Antonio Burgos, went to his house at about 5:00 o'clock P.M. and called him downstair. Thereupon, accused told Masamlok, their purpose was to ask rice and one (1) peso from him, as his contribution to their companions, the NPA of which he is now a member. (TSN, pages 70, 71, 72, Hearing-January 4, 1983).

Accused and his companions told Masamlok, he has to join their group otherwise, he and his family will be killed. He was also warned not to reveal anything with the government authorities. Because of the threat to his life and family, Cesar Masamlok joined the group. Accused then told him, he should attend a seminar scheduled on April 19, 1982. Along with this invitation, accused pulled gut from his waistline a .38 caliber revolver which Masamlok really saw, being only about two (2) meters away from accused, which make him easily Identified said firearm, as that marked as Exhibit "A" for the prosecution. (TSN, pages 72, 73, and 74, Hearing-January 4, 1983).

On April 19, 1982, as previously invited, Masamlok, accompanied by his father, Matuguil Masamlok, Isabel Ilan and Ayok Ides went to the house of accused and attended the seminar, Those present in the seminar were: accused Ruben Burgos, Antonio Burgos, Oscar Gomez, Landrino Burgos, alias Pedipol and one alias Jamper.

The first speaker was accused Ruben Burgos, who said very distinctly that he is an NPA together with his companions, to assure the unity of the civilian. That he encouraged the group to overthrow the government, emphasizing that those who attended the seminar were already members of the NPA, and if they reveal to the authorities, they will be killed.

Accused, while talking, showed to the audience pamphlets and documents, then finally shouted, the NPA will be victorious. Masamlok likewise Identified the pamphlets as those marked as Exh. exhibits "B", "C", and "D" for the prosecution. (TSN, pages 75, 76 and 77, Hearing-January 4, 1983)

Other speakers in said meeting were Pedipol, Jamper and Oscar Gomez, who likewise expounded their own opinions about the NPA. It was also announced in said seminar that a certain Tonio Burgos, will be responsible for the collection of the contribution from the members. (TSN, pages 78-79, Hearing- January 4, 1983)

On May 12, 1982, however, Cesar Masamlok surrendered to Captain Bargio of the Provincial Headquarters of the Philippine Constabulary, Digos, Davao del Sur.

Assistant Provincial Fiscal Panfilo Lovitos was presented t prove that on May 19, 1982, he administered the subscription of th extra-judicial confession of accused Ruben Burgos, marked as Exhibit "E " for the prosecution, consisting of five (5) pages.

Appearing voluntarily in said office, for the subscription of his confession, Fiscal Lovitos, realizing that accused was not represented by counsel, requested the services of Atty. Anyog, whose office is adjacent to the Fiscal's Office, to assist accused in the subscription of his extra-judicial statement.

Atty. Anyog assisted accused in the reading of his confession from English to Visayan language, resulting to the deletion of question No. 19 of the document, by an inserted certification of Atty. Anyog and signature of accused, indicating his having understood, the allegations of his extra-judicial statement.

Fiscal Lovitos, before accused signed his statement, explained to him his constitutional rights to remain silent, right to counsel and right to answer any question propounded or not.

With the aid of Atty. Anyog, accused signed his confession in the presence of Atty. Anyog and Fiscal Lovitos, without the presence of military authorities, who escorted the accused, but were sent outside the cubicle of Fiscal Lovitos while waiting for the accused. (TSN, pages 36-40, nearing November 15, 1982)

Finally, in order to prove illegal possession by accused of the subject firearm, Sgt. Epifanio Comabig in-charge of firearms and explosives, NCO Headquarter, Philippine Constabulary, Digos, Davao del Sur, was presented and testified, that among the lists of firearm holders in Davao del Sur, nothing was listed in the name of accused Ruben Burgos, neither was his name included among the lists of persons who applied for the licensing of the firearm under Presidential Decree No. 1745.

After the above-testimony the prosecution formally closed its case and offered its exhibits, which were all admitted in evidence, despite objection interposed by counsel for accused, which was accordingly overruled.

On the other hand, the defendant-appellant's version of the case against him is stated in the decision as follows:

From his farm, the military personnel, whom he said he cannot recognize, brought him to the PC Barracks at Digos, Davao del Sur, and arrived there at about 3:00 o'clock, on the same date. At about 8:00 o'clock P.M., in the evening, he was investigated by soldiers, whom he cannot Identify because they were wearing a civilian attire. (TSN, page 14 1, Hearing-June 15, 1983)

The investigation was conducted in the PC barracks, where he was detained with respect to the subject firearm, which the investigator, wished him to admit but accused denied its ownership. Because of his refusal accused was mauled, hitting him on the left and right side of his body which rendered him unconscious. Accused in an atmosphere of tersed solemnity, crying and with emotional attachment, described in detail how he was tortured and the ordeals he was subjected.

He said, after recovery of his consciousness, he was again confronted with subject firearm, Exhibit "A", for him to admit and when he repeatedly refused to accept as his own firearm, he was subjected to further prolong

(sic) torture and physical agony. Accused said, his eyes were covered with wet black cloth with pungent effect on his eyes. He was undressed, with only blindfold, pungent water poured in his body and over his private parts, making his entire body, particularly his penis and testicle, terribly irritating with pungent pain.

All along, he was investigated to obtain his admission, The process of beating, mauling, pain and/or ordeal was repeatedly done in similar cycle, from May 13 and 14, 1982. intercepted only whenever he fell unconscious and again repeated after recovery of his senses,

Finally on May 15, 1982, after undergoing the same torture and physical ordeal he was seriously warned, if he will still adamantly refuse to accept ownership of the subject firearm, he will be salvaged, and no longer able to bear any further the pain and agony, accused admitted ownership of subject firearm.

After his admission, the mauling and torture stopped, but accused was made to sign his affidavit marked as Exhibit "E" for the prosecution, consisting of five (5) pages, including the certification of the administering officer, (TSN, pages 141-148, Hearing-June 15, 1983)

In addition to how he described the torture inflicted on him, accused, by way of explanation and commentary in details, and going one by one, the allegations and/or contents of his alleged extrajudicial statement, attributed his answers to those questions involuntarily made only because of fear, threat and intimidation of his person and family, as a result of unbearable excruciating pain he was subjected by an investigator, who, unfortunately he cannot Identify and was able to obtain his admission of the subject firearm, by force and violence exerted over his person.

To support denial of accused of being involved in any subversive activities, and also to support his denial to the truth of his alleged extra-judicial confession, particularly questions Nos. 35, 38, 41, 42, 43, 44, 45, 46 and 47, along with qqqs answers to those questions, involving Honorata Arellano ahas Inday Arellano, said Honorata Arellano appeared and declared categorically, that the above-questions embraced in the numbers allegedly stated in the extrajudicial confession of accused, involving her to such NPA personalities, as Jamper, Pol, Anthony, etc., were not true because on the date referred on April 28, 1982, none of the persons mentioned came to her house for treatment, neither did she meet the accused nor able to talk with him. (TSN, pages 118- 121, Hearing-May 18, 1983)

She, however, admitted being familiar with one Oscar Gomez, and that she was personally charged with subversion in the Office of the Provincial Commander, Philippine Constabulary, Digos, Davao del Sur, but said charge was dismissed without reaching the Court. She likewise stated that her son, Rogelio Arellano, was likewise charged for subversion filed in the Municipal Trial Court of Digos, Davao del Sur, but was likewise dismissed for lack of sufficient evidence to sustain his conviction. (TSN, pages 121-122, in relation to her cross-examination, Hearing-May 18, 1983)

To support accused's denial of the charge against him, Barangay Captain of Tiguman, Digos, Davao del Sur, Salvador qqqGalaraga was presented, who declared, he was not personally aware of any subversive activities of accused, being his neighbor and member of his barrio. On the contrary, he can personally attest to his good character and reputation, as a law abiding citizen of his barrio, being a carpenter and farmer thereat. (TSl pages 128-129, Hearing-May 18, 1983)

He however, admitted in cross-examination, that there were a lot of arrests made by the authorities in his barrio involving subversive activities but they were released and were not formally charged in Court because they publicly took their oath of allegiance with the government. (TSN, pages 133-134, in relation to page 136, Hearing-May 18, 1983)

Finally, to support accused's denial of the subject firearm, his wife, Urbana Burgos, was presented and who testified that the subject firearm was left in their house by Cesar Masamlok and one Pedipol on May 10, 1982. It was night time, when the two left the gun, alleging that it was not in order, and that they will leave it behind, temporarily for them to claim it later. They were the ones who buried it. She said, her husband, the accused, was not in their house at that time and that she did not inform him about said firearm

neither did she report the matter to the authorities, for fear of the life of her husband. (TSN, page 24, November 22, 1983)

On cross-examination, she said, even if Masamlok during the recovery of the firearm, was wearing a mask, she can still Identify him. (TSN, page 6, Hearing-November 22, 1983)

After the above-testimony, accused through counsel formally rested his case in support of accused's through counsel manifestation for the demurrer to evidence of the prosecution, or in the alternative for violation merely of simple illegal possession of firearm, 'under the Revised Administrative Code, as amended by Republic Act No. 4, reflected in the manifestation of counsel for accused. (TSN, pages 113-114, Hearing-May 18, 1983)

Accused-appellant Ruben Burgos now raises the following assignments of error, to wit:

I THE TRIAL COURT ERRED IN HOLDING THAT (SIC) THE ARREST OF ACCUSED-APPELLANT WITHOUT VALID WARRANT TO BE LAWFUL.

II THE TRIAL COURT ERRED IN HOLDING THE SEARCH IN THE HOUSE OF ACCUSED-APPELLANT FOR FIREARM WITHOUT VALID WARRANT TO BE LAWFUL.

III THE TRIAL COURT ERRED IN HOLDING ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT FOR VIOLATION OF P.D. No. 9 IN RELATION TO GENERAL ORDERS NOS. 6 AND 7

Was the arrest of Ruben Burgos lawful? Were the search of his house and the subsequent confiscation of a firearm and documents allegedly found therein conducted in a lawful and valid manner? Does the evidence sustaining the crime charged meet the test of proving guilt beyond reasonable doubt?

The records of the case disclose that when the police authorities went to the house of Ruben Burgos for the purpose of arresting him upon information given by Cesar Masamlok that the accused allegedly recruited him to join the New People's Army (NPA), they did not have any warrant of arrest or search warrant with them (TSN, p. 25, October 14, 1982; and TSN, p. 61, November 15, 1982).

Article IV, Section 3 of the 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 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.

The constitutional provision is a safeguard against wanton and unreasonable invasion of the privacy and liberty of a citizen as to his person, papers and effects. This Court explained in Villanueva vs. Querubin (48 SCRA 345) why this 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 [19661) 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, 116 US 616, 630 [1886]). In the same vein, Landynski in his authoritative work (Search and Seizure and the Supreme Court [1966], could fitly characterize this 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 legs 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. 47).

The trial court justified the arrest of the accused-appelant without any warrant as falling under one of the instances when arrests may be validly made without a warrant. Rule 113, Section 6 * of the Rules of Court, provides the exceptions as follows:

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

b) When an offense has in fact been committed, and he has reasonable ground to believe that the person to be arrested has committed it;

c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending or has escaped while being transferred from one confinement to another.

The Court stated that even if there was no warrant for the arrest of Burgos, the fact that "the authorities received an urgent report of accused's involvement in subversive activities from a reliable source (report of Cesar Masamlok) the circumstances of his arrest, even without judicial warrant, is lawfully within the ambit of Section 6-A of Rule 113 of the Rules of Court and applicable jurisprudence on the matter."

If the arrest is valid, the consequent search and seizure of the firearm and the alleged subversive documents would become an incident to a lawful arrest as provided by Rule 126, Section 12, which states:

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.

The conclusions reached by the trial court are erroneous.

Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personal knowledge of that fact. The offense must also be committed in his presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859).

There is no such personal knowledge in this case. Whatever knowledge was possessed by the arresting officers, it came in its entirety from the information furnished by Cesar Masamlok. The location of the firearm was given by the appellant's wife.

At the time of the appellant's arrest, he was not in actual possession of any firearm or subversive document. Neither was he committing any act which could be described as subversive. He was, in fact, plowing his field at the time of the arrest.

The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the requirement of warrants of arrest is strictly construed. Any exception must clearly fall within the situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the rule on arrests without warrant or extend its application beyond the cases specifically provided by law. To do so would infringe upon personal liberty and set back a basic right so often violated and so deserving of full protection.

The Solicitor General is of the persuasion that the arrest may still be considered lawful under Section 6(b) using the test of reasonableness. He submits that. the information given by Cesar Masamlok was sufficient to induce a reasonable ground that a crime has been committed and that the accused is probably guilty thereof.

In arrests without a warrant under Section 6(b), however, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. That a crime has actually been committed is an essential precondition. It

is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator.

In this case, the accused was arrested on the sole basis of Masamlok's verbal report. Masamlok led the authorities to suspect that the accused had committed a crime. They were still fishing for evidence of a crime not yet ascertained. The subsequent recovery of the subject firearm on the basis of information from the lips of a frightened wife cannot make the arrest lawful, If an arrest without warrant is unlawful at the moment it is made, generally nothing that happened or is discovered afterwards can make it lawful. The fruit of a poisoned tree is necessarily also tainted.

More important, we find no compelling reason for the haste with which the arresting officers sought to arrest the accused. We fail to see why they failed to first go through the process of obtaining a warrant of arrest, if indeed they had reasonable ground to believe that the accused had truly committed a crime. There is no showing that there was a real apprehension that the accused was on the verge of flight or escape. Likewise, there is no showing that the whereabouts of the accused were unknown,

The basis for the action taken by the arresting officer was the verbal report made by Masamlok who was not required to subscribe his allegations under oath. There was no compulsion for him to state truthfully his charges under pain of criminal prosecution. (TSN, p. 24, October 14, 1982). Consequently, the need to go through the process of securing a search warrant and a warrant of arrest becomes even more clear. The arrest of the accused while he was plowing his field is illegal. The arrest being unlawful, the search and seizure which transpired afterwards could not likewise be deemed legal as being mere incidents to a valid arrest.

Neither can it be presumed that there was a waiver, or that consent was given by the accused to be searched simply because he failed to object. To constitute a waiver, it must appear first that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such a right; and lastly, that said person had an actual intention to relinquish the right (Pasion Vda. de Garcia v. Locsin, 65 Phil. 689). The fact that the accused failed to object to the entry into his house does not amount to a permission to make a search therein (Magoncia v. Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. de Garcia V. Locsin (supra)

xxx xxx xxx

. . . As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. (56 C.J., pp. 1180, 1181).

We apply the rule that: "courts indulge every reasonable presumption against waiver of fundamental constitutional rights and that we do not presume acquiescence in the loss of fundamental rights." (Johnson v. Zerbst 304 U.S. 458).

That the accused-appellant was not apprised of any of his constitutional rights at the time of his arrest is evident from the records:

A CALAMBA:

Q When you went to the area to arrest Ruben Burgos, you were not armed with an arrest warrant?

A None Sir.

Q Neither were you armed with a search warrant?

A No Sir.

Q As a matter of fact, Burgos was not present in his house when you went there?

A But he was twenty meters away from his house.

Q Ruben Burgos was then plowing his field?

A Yes Sir.

Q When you called for Ruben Burgos you interviewed him?

A Yes Sir.

Q And that you told him that Masamlok implicated him?

A No Sir.

Q What did you tell him?

A That we received information that you have a firearm, you surrender that firearm, first he denied but when Sgt. Buncalan interviewed his wife, his wife told him that it is buried, I dug the firearm which was wrapped with a cellophane.

Q In your interview of Burgos you did not remind him of his rights under the constitution considering that he was purposely under arrest?

A I did not.

Q As a matter of fact, he denied that he has ever a gun?

A Yes Sir.

Q As a matter of fact, the gun was not in his possession?

A It was buried down in his horse.

Q As a matter of fact, Burgos did not point to where it was buried?

A Yes Sir.

(TSN, pp. 25-26, Hearing-October 14, 1982)

Considering that the questioned firearm and the alleged subversive documents were obtained in violation of the accused's constitutional rights against unreasonable searches and seizures, it follows that they are inadmissible as evidence.

There is another aspect of this case.

In proving ownership of the questioned firearm and alleged subversive documents, the prosecution presented the two arresting officers who testified that the accused readily admitted ownership of the gun after qqqs wife pointed to the place where it was buried. The officers stated that it was the accused himself who voluntarily pointed to the place where the alleged subversive documents were hidden.

Assuming this to be true, it should be recalled that the accused was never informed of his constitutional rights at the time of his arrest. So that when the accused allegedly admitted ownership of the gun and pointed to the location of the subversive documents after questioning, the admissions were obtained in violation of the constitutional right against self-incrimination under Sec. 20 of Art. IV of the Bill of Rights winch provides:

No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right.. . .

The Constitution itself mandates that any evidence obtained in violation of this right is inadmissible in evidence. Consequently, the testimonies of the arresting officers as to the admissions made by the appellant cannot be used against him.

The trial court validly rejected the extra-judicial confession of the accused as inadmissible in evidence. The court stated that the appellant's having been exhaustively subjected to physical terror, violence, and third degree

measures may not have been supported by reliable evidence but the failure to present the investigator who conducted the investigation gives rise to the "provocative presumption" that indeed torture and physical violence may have been committed as stated.

The accused-appellant was not accorded his constitutional right to be assisted by counsel during the custodial interrogation. The lower court correctly pointed out that the securing of counsel, Atty. Anyog, to help the accused when he subscribed under oath to his statement at the Fiscal's Office was too late. It could have no palliative effect. It cannot cure the absence of counsel at the time of the custodial investigation when the extrajudicial statement was being taken.

With the extra-judicial confession, the firearm, and the alleged subversive documents inadmissible in evidence against the accused-appellant, the only remaining proof to sustain the charge of Illegal Possession of Firearm in Furtherance of Subversion is the testimony of Cesar Masamlok.

We find the testimony of Masamlok inadequate to convict Burgos beyond reasonable doubt. It is true that the trial court found Masamlok's testimony credible and convincing. However, we are not necessarily bound by the credibility which the trial court attaches to a particular witness. As stated in People vs.. Cabrera (100 SCRA 424):

xxx xxx xxx

. . .Time and again we have stated that when it comes to question of credibility the findings of the trial court are entitled to great respect upon appeal for the obvious reason th+at it was able to observe the demeanor, actuations and deportment of the witnesses during the trial. But we have also said that this rule is not absolute for otherwise there would be no reversals of convictions upon appeal. We must reject the findings of the trial court where the record discloses circumstances of weight and substance which were not properly appreciated by the trial court.

The situation under which Cesar Masamlok testified is analogous to that found in People vs. Capadocia (17 SCRA 98 1):

. . . The case against appellant is built on Ternura's testimony, and the issue hinges on how much credence can be accorded to him. The first consideration is that said testimony stands uncorroborated. Ternura was the only witness who testified on the mimeographing incident. . . .

xxx xxx xxx

. . .He was a confessed Huk under detention at the time. He knew his fate depended upon how much he cooperated with the authorities, who were then engaged in a vigorous anti-dissident campaign. As in the case of Rodrigo de Jesus, whose testimony We discounted for the same reason, that of Ternura cannot be considered as proceeding from a totally unbiased source. . . .

In the instant case, Masamlok's testimony was totally uncorroborated. Considering that Masamlok surrendered to the military certainly his fate depended on how eagerly he cooperated with the authorities. Otherwise, he would also be charged with subversion. The trade-off appears to be his membership in the Civil Home Defense Force. (TSN, p. 83, January 4, 1983). Masamlok may be considered as an interested witness. It can not be said that his testimony is free from the opportunity and temptation to be exaggerated and even fabricated for it was intended to secure his freedom.

Despite the fact that there were other persons present during the alleged NPA seminar of April 19, 1982 i.e., Masamlok's father ,Matuguil Masamlok, Isabel Ilan and Ayok Ides (TSN, p. 74, January 4, 1983) who could have corroborated Cesar Masamlok's testimony that the accused used the gun in furtherance of subversive activities or actually engaged in subversive acts, the prosecution never presented any other witness.

This Court is, therefore, constrained to rule that the evidence presented by the prosecution is insufficient to prove the guilt of the accused beyond reasonable doubt.

As held in the case of People vs. Baia (34 SCRA 347):

It is evident that once again, reliance can be placed on People v. Dramayo (42 SCRA 59), where after stressing that accusation is not, according to the fundamental law, synonymous with guilt, it was made clear: 'Only if the judge below and the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by the person on trial under such an exacting test should the sentence be one of conviction. It is thus required that every circumstance favoring his innocence be duly taken into account. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the defendant could be laid the responsibility for the offense charged; that not only did he perpetrate the act but that it amounted to a crime. What is required then is moral certainty.' (Ibid, 64. Cf. People v. Alvarez, 55 SCRA 81; People v. Joven, 64 SCRA 126; People vs. Ramirez, 69 SCRA 144; People vs. Godov 72 SCRA 69; People v. Lopez, 74 SCRA 205; People v. Poblador, 76 SCRA 634; People v. Quiazon, 78 SCRA 513; People v. Nazareno, 80 SCRA 484; People vs. Gabilan 115 SCRA 1; People v. Gabiana, 117 SCRA 260; and People vs. Ibanga 124 SCRA 697).

We are aware of the serious problems faced by the military in Davao del Sur where there appears to be a well-organized plan to overthrow the Government through armed struggle and replace it with an alien system based on a foreign ideology. The open defiance against duly constituted authorities has resulted in unfortunate levels of violence and human suffering publicized all over the country and abroad. Even as we reiterate the need for all freedom loving citizens to assist the military authorities in their legitimate efforts to maintain peace and national security, we must also remember the dictum in Morales vs. Enrile (1 21 SCRA 538, 569) when this Court stated:

While the government should continue to repel the communists, the subversives, the rebels, and the lawless with an the means at its command, it should always be remembered that whatever action is taken must always be within the framework of our Constitution and our laws.

Violations of human rights do not help in overcoming a rebellion. A cavalier attitude towards constitutional liberties and protections will only fan the increase of subversive activities instead of containing and suppressing them.

WHEREFORE, the judgment of conviction rendered by the trial court is REVERSED and SET ASIDE. The accused-appellant is hereby ACQUITTED, on grounds of reasonable doubt, of the crime with which he has been charged.

The subject firearm involved in this case (homemade revolver, caliber .38, Smith and Wesson, with Serial No. 8.69221) and the alleged subversive documents are ordered disposed of in accordance with law.

Cost de oficio.

SO ORDERED.

GO VS. COURT OF APPEALS [206 SCRA 138; G.R. NO. 101837; 11 FEB 1992]

Facts: Petitioner, while traveling in the wrong direction on a one-way street, almost had a collision with another vehicle. Petitioner thereafter got out of his car, shot the driver of the other vehicle, and drove off. An eyewitness of the incident was able to take down petitioner’s plate number and reported the same to the police, who subsequently ordered a manhunt for petitioner. 6 days after the shooting, petitioner presented himself in the police station, accompanied by 2 lawyers, the police detained him. Subsequently a criminal charge was brought against him. Petitioner posted bail, the prosecutor filed the case to the lower court, setting and commencing trial without preliminary investigation. Prosecutor reasons that the petitioner has waived his right to preliminary investigation as bail has been posted and that such situation, that petitioner has been arrested without a warrant lawfully, falls under Section 5, Rule 113 and Section 7, Rule 112 of The 1985 Rules of Criminal Procedure which provides for the rules and procedure pertaining to situations of lawful warrantless arrests. Petitioner in his petition for certiorari

assails such procedure and actions undertaken and files for a preliminary investigation.

Issues:

(1) WON warrantless arrest of petitioner was lawful.

(2) WON petitioner effectively waived his right to preliminary investigation.

Held: Petitioner and prosecutor err in relying on Umil v. Ramos, wherein the Court upheld the warrantless arrest as valid effected 1 to 14 days from actual commission of the offenses, which however constituted “continuing crimes,” i.e. subversion, membership in an outlawed organization, etc. There was no lawful warrantless arrest under Section 5, Rule 113. This is because the arresting officers were not actually there during the incident, thus they had no personal knowledge and their information regarding petitioner were derived from other sources. Further, Section 7, Rule 112, does not apply.

Petitioner was not arrested at all, as when he walked in the police station, he neither expressed surrender nor any statement that he was or was not guilty of any crime. When a complaint was filed to the prosecutor, preliminary investigation should have been scheduled to determine probable cause. Prosecutor made a substantive error, petitioner is entitled to preliminary investigation, necessarily in a criminal charge, where the same is required appear thereat. Petition granted, prosecutor is ordered to conduct preliminary investigation, trial for the criminal case is suspended pending result from preliminary investigation, petitioner is ordered released upon posting a bail bond.

Alih vs. Castro

151 SCRA 279

June 23, 1987

Facts:

Respondents who were members of the Philippine marine and defense forces raided the compound occupied by petitioner in search of loose firearms, ammunitions and explosives. A shoot-out ensued after petitioners resisted the intrusion by the respondents, killing a number of men. The following morning, the petitioners were arrested and subjected to finger –printing, paraffin testing and photographing despite their objection. Several kinds of rifle, grenades and ammunitions were also confiscated.

The petitioners filed an injunction suit with a prayer to have the items illegally seized returned to them and invoked the provisions on the Bill of Rights

The respondents admitted that the operation was done without a warrant but reasoned that they were acting under superior orders and that operation was necessary because of the aggravation of the peace and order problem due to the assassination of the city mayor.

Issue:

Whether or not the seizing of the items and the taking of the fingerprints and photographs of the petitioners and subjecting them to paraffin testing are violative of the bill of Rights and are inadmissible as evidence against them.

Held:

The court held that superior orders nor the suspicion that the respondents had against petitioners did not excuse the former from observing the guaranty provided for by the constitution against unreasonable searches and seizure. The petitioners were entitled to due process and should be protected from the arbitrary actions of those tasked to execute the law. Furthermore, there was no showing that the operation was urgent nor was there any showing of the petitioners as criminals or fugitives of justice to merit approval by virtue of Rule 113, Section 5 of the Rules of Court.

The items seized, having been the “fruits of the poisonous tree” were held inadmissible as evidence in any proceedings against the petitioners. The operation by the respondents was done without a warrant and so the items seized during said operation should not be acknowledged in court as evidence. But said evidence should remain in the custody of the law (custodia egis).

However, as to the issue on finger-printing, photographing and paraffin-testing as violative of the provision against self-incrimination, the court held that the prohibition against self-incrimination applies to testimonial compulsion only. As Justice Holmes put it in Holt v. United States, 18 “The prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.”

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SAMUEL YU VALDEZ @ Bebot, accused-appellant.

D E C I S I O N

QUISUMBING, J.:

This is an appeal from the decision[1] rendered on November 4, 1996, by the Regional Trial Court of Lagawe, Ifugao, Branch 14, in Criminal Case No. 930, which found Samuel Valdez guilty of the crime of illegal transport of marijuana buds/leaves and sentencing him to reclusion perpetua and to pay a fine of P500,000.00.

In an information dated December 28, 1994, Provincial Prosecutor Jose Godofredo Naui charged herein accused-appellant with violation of Section 4 of Republic Act No. 6425, as amended, otherwise known as Dangerous Drugs Act of 1972, allegedly committed as follows:

“That on or about the 1st day of September, 1994, in the Municipality of Hingyon, Ifugao and within the jurisdiction of the Honorable Court, the above-named accused, while on board a Dangwa Tranco bus bound for Manila, did then and there, wilfully and unlawfully transport marijuana weighing more or less two kilos packed in two separate containers.

CONTRARY TO LAW.”[2]2

Upon arraignment, herein accused-appellant, assisted by counsel, entered a plea of “not guilty.” Thereafter, trial on the merits ensued. Subsequently, the trial court rendered the assailed judgment, the dispositive portion of which reads:

“From the foregoing, the prosecution having proven the guilt of the accused beyond reasonable doubt, he is hereby sentenced to suffer the penalty of reclusion perpetua. He is fined the amount of Five Hundred Thousand (P500,000.00) Pesos. The drug in question is ordered forfeited in favor of the government.

SO ORDERED.”[3]

The prosecution’s evidence upon which the finding of guilt beyond reasonable doubt was based is summarized by the trial court as follows:

“In the morning of September 1, 1994, SPO1 Bernardo Mariano was in the Municipality of Banaue, Ifugao waiting for a ride to report for work in Lagawe, Ifugao. A civilian asset approached him and intimated that an Ilocano person was ready to transport marijuana. This asset described to him the physical appearance of the suspect as thin and possessing a green bag. Mr. Mariano invited the asset and together they proceeded to Barangay O-ong, Hingyon, Ifugao. There they alighted and stopped and ordinary Dangwa passenger bus bound for Baguio City. Aboard on this bus, they did not find the person concerned and reaching Barangay Pitawan, Hingyon, Ifugao, they stepped out of the vehicle and waited for the air conditioned Dangwa bus bound for Manila. When this bus arrived, Police Officer Mariano boarded the aircon bus and looked for that person from among the passengers and noticed him holding the green bag. He immediately ordered the person to get out of the bus. This fellow followed holding the bag. Once outside, he further ordered the suspect to open the bag and saw a water jug colored red and white and a lunch box. He told this man to open the jug and the lunch box and when opened, he saw marijuana leaves as contents. At this time, suspect revealed his name to be Samuel Yu Valdez. With this discovery, the asset was left behind and Peace Officer Mariano escorted the accused to the Philippine National Police (PNP) Provincial Headquarters at Lagawe, Ifugao. He turned over the accused including the contents of the green bag to his superiors for further investigation.”[4]

In open court, SPO1 Bernardo Mariano identified the water jug, the lunch box, both stuffed with dried marijuana leaves and the green bag. He further identified the accused as the same person from whom he seized the prohibited drug. Police Senior Inspector Alma Margarita Villasenor, Forensic Chemist, PNP Crime Laboratory, Camp Dangwa, La Trinidad, Benguet averred that from her laboratory examination, the items or samples taken from the water jug and lunchbox gave positive results to the test for the presence of marijuana, a prohibited drug.

Only the accused testified in his defense. His testimony is narrated by the trial court as follows:

“Accused is a resident of Barangay Gumol, Guimba, Nueva Ecija and knows construction work and more often than not, his co-worker is a certain Edwin Andres from Cabanatuan City who married one from Banaue, Ifugao. Upon the invitation of Edwin Andres to attend the latter’s birthday celebration slated on August 31, 1994, accused and Edwin Andres arrived in Banaue, Ifugao on August 30, 1994. The next day, August 31, 1994, accused partook of the birthday party and the following morning September 1, 1994, he was bound for Nueva Ecija taking the 7:00 o’clock in the morning Dangwa bus. Because of too much intake of liquor (hang-over), when he boarded the bus, he still felt groggy and sat alone on a seat near the window. While the bus was proceeding, he felt sleepy on that seat still alone. His bag was placed on the right side and the green bag was place under the seat to the right. Feeling sleepy, he noticed somebody or a passenger seated beside him and later he also felt and noticed that his seatmate was gone and at this time he was awakened by a tap on his shoulder. He saw two persons standing and one of them mentioned as ‘Mariano’ who he thought at first was the bus inspector as he was in fatigue uniform. Then this ‘Mariano’ asked him whether or not he owns the green bag but he replied saying ‘I do not know. I have a fellow seated with me here but he is no more.’ He was made to step out of the bus and there he was forced to declare that he is the owner of the bag. The other policeman was nearby who pointed to the green bag. That the two policemen were the ones who opened that bag and its contents were marijuana. Thereafter, he was brought to the PNP Provincial Headquarters (termed by the accused as ‘barracks’) in Lagawe, Ifugao. When brought to said office, he saw many people possibly police or soldiers. He was later on investigated and showed them the bag. He was told to stay for a while in the jailhouse. He could remember that he was made to sign some papers or documents which he did not read. After an overnight stay at the barracks, he was brought to the hospital for medical examination about the pain on his breast but kept mum on the blow delivered by Bernardo Mariano at the waiting shed where he was first aprehended. That from the hospital, he was brought to the Municipal Jail and later to the Provincial Jail for further detention.”[5]

Appellant, through his counsel, Public Attorney’s Office, raised the following assignment of errors in his appeal:

I

“THE COURT A QUO ERRED IN ADMITTING THE SEIZED DRUGS IN EVIDENCE.

II

THE COURT A QUO ERRED IN CONVICTING THE ACCUSED DESPITE THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT OF THE CRIME CHARGED BEYOND REASONABLE DOUBT.”[6]

Appellant contends that the marijuana allegedly seized from him was a product of an unlawful search, hence, inadmissible in evidence.

The resolution of this case hinges on the pivotal question of the constitutionality and legality of the arrest and search of herein appellant effected by the police officer.

Settled is the rule that no arrest, search and seizure can be made without a valid warrant issued by a competent judicial authority. The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.[7] It further decrees that any evidence obtained in violation of said rights shall be inadmissible for any purpose in any proceeding.[8]

The abovementioned constitutional provisions serve as safeguards against wanton and unreasonable invasion of the privacy and liberty of a citizen as to his person, papers and effects. The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. A statute, rule or situation which allows exceptions to the requirement of a warrant of arrest or search warrant must be strictly construed. We cannot liberally consider arrests or seizures without warrant or extend their application beyond the cases specifically provided or allowed by law. To do so would infringe upon personal liberty and set back a basic right so often violated and yet, so deserving of full protection and vindication.[9]

Nevertheless, the constitutional proscription against warrantless searches and seizures admits of certain legal and judicial exceptions, as follows: (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 a moving vehicle; (4) consented warrantless search; (5) customs search; (6) stop and frisk; and (7) exigent and emergency circumstances.[10]

On the other hand, a lawful arrest without a warrant may be made by a peace officer or a private person under the following circumstances:

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

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.”[11]

In this case, appellant was caught in flagrante since he was carrying marijuana at the time of his arrest. A crime was actually being committed by the appellant, thus, the search made upon his personal effects falls squarely under paragraph (a) of the foregoing provisions of law, which allow a warrantless search incident to lawful arrest. While it is true that SPO1 Mariano was not armed with a search warrant when the search was conducted over the personal effects of appellant, nevertheless, under the circumstances of the case, there was sufficient probable cause for said police officer to believe that appellant was then and there committing a crime.

Although the term eludes exact definition, probable cause signifies 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; or the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched. [12] The required probable cause that will justify a warrantless search and seizure is not determined by a fixed formula but is resolved according to the facts of each case.[13]

Our jurisprudence is replete with instances where tipped information has become a sufficient probable cause to effect a warrantless search and seizure.[14]

In People   v.   Tangliben,[15] two police officers and a barangay tanod were conducting surveillance mission at the Victory Liner terminal compound in San Fernando, Pampanga against persons who may commit misdemeanors and also on those who may be engaging in the traffic of dangerous drugs based on information supplied by informers. At 9:30 in the evening, the policemen noticed a person carrying a red travelling bag who was acting suspiciously. An informer pointed to the accused-appellant as carrying marijuana. They confronted him and requested him to open his bag but he refused. He acceded later on when the policemen identified themselves. Inside the bag were marijuana leaves wrapped in a plastic wrapper. The police officers only knew of the activities of Tangliben on the night of his arrest. Hence, faced with such on-the-spot tip, the police officers acted quickly as there was not enough time to secure a search warrant.

In People   v.  Maspil,[16] a checkpoint was set up by elements of the First Narcotics Regional Unit of the Narcotics Command at Sayangan, Atok, Benguet, to monitor, inspect and scrutinize vehicles on the highway going towards Baguio City. This was done because of a confidential report by informers that Maspil and Bagking, would be transporting a large quantity of marijuana to Baguio City. In fact, the informers were with the policemen manning the checkpoint. As expected, at about 2 o’clock in the early morning of November 1, 1986, a jeepney approached the checkpoint, driven by Maspil, with Bagking as passenger. The officers stopped the vehicle and saw that on it were loaded 2 plastic sacks, a jute sack, and 3 big round tin cans. When opened, the sacks and cans were seen to contain what appeared to be marijuana leaves. The policemen thereupon placed Maspil and Bagking under arrest, and confiscated the leaves which, upon scientific examination, were verified to be marijuana leaves. The Court upheld the validity of the search thus conducted, as being incidental to lawful warrantless arrest and declared that Maspil and Bagking had been caught in flagrante delicto transporting prohibited drugs.

In People v. Malmstedt,[17] Narcom agents set up checkpoint at Acop, Tublay, Mountain Province in view of reports that vehicles coming from Sagada were transporting marijuana. They likewise received information that a Caucasian coming from Sagada had in his possession prohibited drugs. There was no reasonable time to obtain a search warrant, especially since the identity of the suspect could not be readily ascertained. Accused’s actuations also aroused the suspicion of the officers conducting the inspection aboard the bus. The Court held that in light of such circumstances, to deprive the agents of the ability and facility to act promptly, including a search without a warrant, would be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society.

In People v. Bagista,[18] the NARCOM officers had probable cause to stop and search all vehicles coming from the north to Acop, Tublay, Benguet in view of the confidential information they received from their regular informant that a woman having the same appearance as that of accused-appellant would be bringing marijuana from up north. They likewise had probable cause to search accused-appellant’s belongings since she fitted the description given by the NARCOM informant.

In Manalili v. Court of Appeals,[19] the policemen conducted a surveillance in an area of the Kalookan Cemetery based on information that drug addicts were roaming therein. Upon reaching the place, they chanced upon a man in front of the cemetery who appeared to be “high” on drugs. He was observed to have reddish eyes and to be walking in a swaying manner. Moreover, he

appeared to be trying to avoid the policemen. When approached and asked what he was holding in his hands , he tried to resist. When he showed his wallet, it contained marijuana. The Court held that the policemen had sufficient reason to accost accused-appellant to determine if he was actually “high” on drugs due to his suspicious actuations, coupled with the fact that based on information, this area was a haven for drug addicts.

As in the instant case, police officer Mariano was tipped off by a civilian “asset” that a thin Ilocano person with a green bag was about to transport marijuana from Banaue, Ifugao. Said information was received by SPO1 Mariano the very same morning he was waiting for a ride in Banaue to report for work in Lagawe, the capital town of Ifugao province. Thus, face with such on-the-spot information, the law enforcer had to respond quickly to the call of duty. Obviously, there was not enough time to secure a search warrant considering the time involved in the process. In fact, in view of the urgency of the case, SPO1 Mariano together with the civilian ‘asset” proceeded immediately to Hingyon, Ifugao to pursue the drug trafficker. In Hingyon, he flagged down buses bound for Baguio City and Manila, and looked for the person described by the informant. It must be noted that the target of the pursuit was just the “thin Ilocano person with a green bag” and no other. And so, when SPO1 Mariano inspected the bus bound for Manila, he just singled out the passenger with the green bag. Evidently, there was definite information of the identity of the person engaged in transporting prohibited drugs at a particular time and place. SPO1 Mariano had already an inkling of the identity of the person he was looking for. As a matter of fact, no search at all was conducted on the baggages of other passengers. Hence, appellant’s claim that the arresting officer was only fishing for evidence of a crime has no factual basis.

Clearly, SPO1 Mariano had probable cause to stop and search the buses coming from Banaue in view of the information he got from the civilian “asset” that somebody having the same appearance as that of appellant and with a green bag would be transporting marijuana from Banaue. He likewise had probable cause to search appellant’s belongings since he fits the description given by the civilian “asset”. Since there was a valid warrantless search by the police officer, any evidence obtained during the course of said search is admissible against appellant.

Appellant likewise asserts that the prosecution failed to prove his guilt beyond reasonable doubt. He claims that when SPO1 Mariano apprehended him, he was not in possession of the green bag as the same was under the seat before him.

The assertion is incredulous.

As SPO1 Mariano declared in his testimony, the appellant was alone in his seat and the green bag was placed under the seat just in front of appellant. SPO1 Mariano testified as follows:

“Q: How about this travelling bag, the green bag, is it not that this bag was placed considerably far from the accused?

A: The green bag was placed just in front of him.

Q: But he was not holding the bag, is it not?

A: No.

Q: So he was not in possession of this bag when you apprehended him?

A: No.

Q: And of course there were other passengers aside from the accused?

A: There were other passengers but he was alone on that seat.

Q: How about the seat fronting this accused, is it not that there was a person seated in front?

A: Yes, there were.

Q: And upon seeing the accused you ordered him to get that bag?

A: Yes.

Q: And you told him to get the bag and alight from the bus?

A: I told him, you get off the bus, and I told him to carry his bag.”[20]

From the foregoing testimony, it can be gleamed that when appellant was asked to get off the bus and bring “his” bag, appellant brought with him said bag. If, indeed, the bag was not his, he should not have taken it with him in alighting from the bus. Besides, denial, like alibi, if not substantiated by clear and convincing evidence, is negative and self-serving evidence bearing no weight in law.[21]

Appellant further avers that the civilian “asset” should have been presented in court to shed light on how he managed to get his information. This argument is not tenable. The settled rule is that the presentation of an informant in illegal drugs case is not essential for conviction nor is it indispensable for a successful prosecution because his testimony would be merely corroborative and cumulative.[22]

Based on the foregoing, this Court is convinced that the guilt of appellant has been proven beyond reasonable doubt by the evidence on record.

With the enactment and effectivity of R.A. No. 7659, [23] the penalty imposable upon violators of Section 4 of Dangerous Drugs Act is reclusion perpetua to death and a fine ranging from five hundred thousand pesos (P500,000.00) to ten million pesos (P10,000,000.00) if the marijuana involved weighs 750 grams or more. In this case, the quantity of marijuana involved weighs more or less two kilograms, hence, the applicable penalty is reclusion perpetua to death. Since the imposable penalty is composed of two indivisible penalties, the rules for the application of indivisible penalties under Article 63 of the Revised Penal Code should be applied. This is pursuant to our pronouncement in People vs. Simon[24] where we recognized the suppletory application of the rules on penalties in the Revised Penal Code as well as the Indeterminate Sentence Law to the Dangerous Drugs Act after the amendment of the latter by R.A. No. 7659.[25] Thus, as there is neither mitigating nor aggravating circumstances in the commission of the crime, the trial court correctly imposed the lesser penalty of reclusion perpetua. Finally, considering that the penalty imposed is the indivisible penalty of reclusion perpetua, the Indeterminate Sentence Law could not be applied.[26]

WHEREFORE, the instant appeal is DENIED. The judgment of the lower court finding appellant guilty of the crime illegal transport of marijuana and sentencing him to reclusion   perpetua and to pay fine of P500,000.00 is hereby AFFIRMED. Costs against appellant.

SO ORDERED.

People vs. Tangliben, 184 SCRA 220

Police Officers X and Y together with a Barangay Police( in our place we call it Barangay Tanod) were conducting surveillance operations in a bus station allegedly to check on persons who may be engaging in the traffic of dangerous drugs based from the information supplied by the informers.

There was a person(M) carrying a red bag who was acting suspiciously. The officers noticed him,approached him and identified themselves, asked him to open the bag,when opened,there were marijuana leaves wrapped in a plastic. M was arrested by the officers.

Issue : Was there a valid arrest??

Ruling :

Yes. The court ruled that there was a valid warrant less arrest and a valid warrant less search. The court made distinction from the case of Tangliben and Amminudin. In the latter, the urgency presented by Tangliben were not

present. In the former, the court found that the officers were faced by an on the spot information which required them to act swiftly.

PEOPLE VS. MALMSTEDT [198 SCRA 401; G.R. No. 91107; 19 Jun 1991]

Friday, February 06, 2009 Posted by Coffeeholic Writes Labels: Case Digests, Political Law

Facts: In an information filed against the accused- appellant Mikael Malmstead was charged before the RTC of La Trinidad, Benguet, for violation of Section 4, Art. II of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, as amended.Accused Mikael Malmstedt, a Swedish national, entered the Philippines for the third time in December 1988 as a tourist. He had visited the country sometime in 1982 and 1985.

In the evening of 7 May 1989, accused left for Baguio City. Upon his arrival thereat in the morning of the following day, he took a bus to Sagada and stayed in that place for two (2) days. Then in the 7 in the morning of May 11, 1989, the accused went to Nangonogan bus stop in Sagada.

At about 8: 00 o'clock in the morning of that same day (11 May 1989), Captain Alen Vasco, the Commanding Officer of the First Regional Command (NARCOM) stationed at Camp Dangwa, ordered his men to set up a temporary checkpoint at Kilometer 14, Acop, Tublay, Mountain Province, for the purpose of checking all vehicles coming from the Cordillera Region. The order to establish a checkpoint in the said area was prompted by persistent reports that vehicles coming from Sagada were transporting marijuana and other prohibited drugs. Moreover, information was received by the Commanding Officer of NARCOM, that same morning that a Caucasian coming from Sagada had in his possession prohibited drugs. The group composed of seven (7) NARCOM officers, in coordination with Tublay Police Station, set up a checkpoint at the designated area at about 10:00 o'clock in the morning and inspected all vehicles coming from the Cordillera Region.

The two (2) NARCOM officers started their inspection from the front going towards the rear of the bus. Accused who was the sole foreigner riding the bus was seated at the rear thereof.

During the inspection, CIC Galutan noticed a bulge on accused's waist. Suspecting the bulge on accused's waist to be a gun, the officer asked for accused's passport and other identification papers. When accused failed to comply, the officer required him to bring out whatever it was that was bulging on his waist. The bulging object turned out to be a pouch bag and when accused opened the same bag, as ordered, the officer noticed four (4) suspicious-looking objects wrapped in brown packing tape, prompting the officer to open one of the wrapped objects. The wrapped objects turned out to contain hashish, a derivative of marijuana.

Thereafter, accused was invited outside the bus for questioning. But before he alighted from the bus, accused stopped to get two (2) travelling bags from the luggage carrier. Upon stepping out of the bus, the officers got the bags and opened them. A teddy bear was found in each bag. Feeling the teddy bears, the officer noticed that there were bulges inside the same which did not feel like foam stuffing. It was only after the officers had opened the bags that accused finally presented his passport.

Accused was then brought to the headquarters of the NARCOM at Camp Dangwa, La Trinidad, Benguet for further investigation. At the investigation room, the officers opened the teddy bears and they were found to also contain hashish. Representative samples were taken from the hashish found among the personal effects of accused and the same were brought to the PC Crime Laboratory for chemical analysis.

In the chemistry report, it was established that the objects examined were hashish. a prohibited drug which is a derivative of marijuana. Thus, an information was filed against accused for violation of the Dangerous Drugs

Act.

ACCUSED’S DEFENSE

During the arraignment, accused entered a plea of "not guilty." For his defense, he raised the issue of illegal search of his personal effects. He also claimed that the hashish was planted by the NARCOM officers in his pouch bag and that the two (2) travelling bags were not owned by him, but were merely entrusted to him by an Australian couple whom he met in Sagada. He further claimed that the Australian couple intended to take the same bus with him but because there were no more seats available in said bus, they decided to take the next ride and asked accused to take charge of the bags, and that they would meet each other at the Dangwa Station.

The trial court found the guilt of the accused Mikael Malmstedt established beyond reasonable doubt.

Seeking the reversal of the decision of the trial court finding him guilty of the crime charged, accused argues that the search of his personal effects was illegal because it was made without a search warrant and, therefore, the prohibited drugs which were discovered during the illegal search are not admissible as evidence against him.

Issue: Whether or Not the contention of the accused is valid, and therefore the RTC ruling be reversed.

Held: The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. However, where the search is made pursuant to a lawful arrest, there is no need to obtain a search warrant. A lawful arrest without a warrant may be made by a peace officer or a private person under the following circumstances.

Sec. 5 Arrest without warrant; when lawful. –– A peace officer or a private person may, without a warrant, arrest a person:

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

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

Accused was searched and arrested while transporting prohibited drugs (hashish). A crime was actually being committed by the accused and he was caught in flagrante delicto. Thus, the search made upon his personal effects falls squarely under paragraph (1) of the foregoing provisions of law, which allow a warrantless search incident to a lawful arrest. While it is true that the NARCOM officers were not armed with a search warrant when the search was made over the personal effects of accused, however, under the circumstances of the case, there was sufficient probable cause for said officers to believe that accused was then and there committing a crime.

Probable cause has been defined as such facts and circumstances which could lead a reasonable, 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. Warrantless search of the personal effects of an accused has been declared by this Court as valid, because of existence of probable cause, where the smell of marijuana emanated from a plastic bag owned by the accused, 10 or where the accused was acting suspiciously, 11 and attempted to flee.

The appealed judgment of conviction by the trial court is hereby affirmed. Costs against the accused-appellant.

G.R. No. 91107 June 19, 1991

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.MIKAEL MALMSTEDT, *defendant-appellant.

The Solicitor General for plaintiff-appellee.

Romulo,  Mabanta,  Buenaventura,   Sayoc  & De   los  Angeles   for   defendant-appellant.

PADILLA, J.:p

In an information dated 15 June 1989, accused-appellant Mikael Malmstedt (hereinafter referred to as the accused) was charged before the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch 10, in Criminal Case No. 89-CR-0663, for violation of Section 4, Art. II of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, as amended. The factual background of the case is as follows:

Accused Mikael Malmstedt, a Swedish national, entered the Philippines for the third time in December 1988 as a tourist. He had visited the country sometime in 1982 and 1985.

In the evening of 7 May 1989, accused left for Baguio City. Upon his arrival thereat in the morning of the following day, he took a bus to Sagada and stayed in that place for two (2) days.

At around 7:00 o'clock in the morning of 11 May 1989, accused went to the Nangonogan bus stop in Sagada to catch the first available trip to Baguio City. From Baguio City, accused planned to take a late afternoon trip to Angeles City, then proceed to Manila to catch his flight out of the country, scheduled on 13 May 1989. From Sagada, accused took a Skyline bus with body number 8005 and Plate number AVC 902. 1

At about 8: 00 o'clock in the morning of that same day (11 May 1989), Captain Alen Vasco, the Commanding Officer of the First Regional Command (NARCOM) stationed at Camp Dangwa, ordered his men to set up a temporary checkpoint at Kilometer 14, Acop, Tublay, Mountain Province, for the purpose of checking all vehicles coming from the Cordillera Region. The order to establish a checkpoint in the said area was prompted by persistent reports that vehicles coming from Sagada were transporting marijuana and other prohibited drugs. Moreover, information was received by the Commanding Officer of NARCOM, that same morning, that a Caucasian coming from Sagada had in his possession prohibited drugs. 2

The group composed of seven (7) NARCOM officers, in coordination with Tublay Police Station, set up a checkpoint at the designated area at about 10:00 o'clock in the morning and inspected all vehicles coming from the Cordillera Region.

At about 1:30 o'clock in the afternoon, the bus where accused was riding was stopped. Sgt. Fider and CIC Galutan boarded the bus and announced that they were members of the NARCOM and that they would conduct an inspection. The two (2) NARCOM officers started their inspection from the front going towards the rear of the bus. Accused who was the sole foreigner riding the bus was seated at the rear thereof.

During the inspection, CIC Galutan noticed a bulge on accused's waist. Suspecting the bulge on accused's waist to be a gun, the officer asked for accused's passport and other identification papers. When accused failed to comply, the officer required him to bring out whatever it was that was bulging on his waist. The bulging object turned out to be a pouch bag and when accused opened the same bag, as ordered, the officer noticed four (4) suspicious-looking objects wrapped in brown packing tape, prompting the officer to open one of the wrapped objects. The wrapped objects turned out to contain hashish, a derivative of marijuana.

Thereafter, accused was invited outside the bus for questioning. But before he alighted from the bus, accused stopped to get two (2) travelling bags from the luggage carrier.

Upon stepping out of the bus, the officers got the bags and opened them. A teddy bear was found in each bag. Feeling the teddy bears, the officer noticed that there were bulges inside the same which did not feel like foam stuffing. It was only after the officers had opened the bags that accused finally presented his passport.

Accused was then brought to the headquarters of the NARCOM at Camp Dangwa, La Trinidad, Benguet for further investigation. At the investigation room, the officers opened the teddy bears and they were found to also contain hashish. Representative samples were taken from the hashish found among the personal effects of accused and the same were brought to the PC Crime Laboratory for chemical analysis.

In the chemistry report, it was established that the objects examined were hashish. a prohibited drug which is a derivative of marijuana. Thus, an information was filed against accused for violation of the Dangerous Drugs Act.

During the arraignment, accused entered a plea of "not guilty." For his defense, he raised the issue of illegal search of his personal effects. He also claimed that the hashish was planted by the NARCOM officers in his pouch bag and that the two (2) travelling bags were not owned by him, but were merely entrusted to him by an Australian couple whom he met in Sagada. He further claimed that the Australian couple intended to take the same bus with him but because there were no more seats available in said bus, they decided to take the next ride and asked accused to take charge of the bags, and that they would meet each other at the Dangwa Station.

Likewise, accused alleged that when the NARCOM officers demanded for his passport and other Identification papers, he handed to one of the officers his pouch bag which was hanging on his neck containing, among others, his passport, return ticket to Sweden and other papers. The officer in turn handed it to his companion who brought the bag outside the bus. When said officer came back, he charged the accused that there was hashish in the bag. He was told to get off the bus and his picture was taken with the pouch bag placed around his neck. The trial court did not give credence to accused's defense.

The claim of the accused that the hashish was planted by the NARCOM officers, was belied by his failure to raise such defense at the earliest opportunity. When accused was investigated at the Provincial Fiscal's Office, he did not inform the Fiscal or his lawyer that the hashish was planted by the NARCOM officers in his bag. It was only two (2) months after said investigation when he told his lawyer about said claim, denying ownership of the two (2) travelling bags as well as having hashish in his pouch bag.

In a decision dated 12 October 1989, the trial court found accused guilty beyond reasonable doubt for violation of the Dangerous Drugs Act, specifically Section 4, Art. II of RA 6425, as amended. 3 The dispositive portion of the decision reads as follows:

WHEREFORE, finding the guilt of the accused Mikael Malmstedt established beyond reasonable doubt, this Court finds him GUILTY of violation of Section 4, Article 11 of Republic Act 6425, as amended, and hereby sentences him to suffer the penalty of life imprisonment and to pay a fine of Twenty Thousand Pesos (P20,000.00), with subsidiary imprisonment in case of insolvency and to pay the costs.

Let the hashish subject of this case be turned over to the First Narcotics Regional Unit at Camp Bado; Dangwa, La Trinidad Benguet for proper disposition under Section 20, Article IV of Republic Act 6425, as amended.

SO ORDERED. 4

Seeking the reversal of the decision of the trial court finding him guilty of the crime charged, accused argues that the search of his personal effects was illegal because it was made without a search warrant and, therefore, the prohibited drugs which were discovered during the illegal search are not admissible as evidence against him.

The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. 5 However, where the search is made pursuant to a lawful arrest,

there is no need to obtain a search warrant. A lawful arrest without a warrant may be made by a peace officer or a private person under the following circumstances. 6

Sec. 5 Arrest without warrant; when lawful. –– A peace officer or a private person may, without a warrant, arrest a person:

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

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. (6a 17a).

Accused was searched and arrested while transporting prohibited drugs (hashish). A crime was actually being committed by the accused and he was caught in flagrante delicto. Thus, the search made upon his personal effects falls squarely under paragraph (1) of the foregoing provisions of law, which allow a warrantless search incident to a lawful arrest. 7

While it is true that the NARCOM officers were not armed with a search warrant when the search was made over the personal effects of accused, however, under the circumstances of the case, there was sufficient probable cause for said officers to believe that accused was then and there committing a crime.

Probable cause has been defined as such facts and circumstances which could lead a reasonable, 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. 8 The required probable cause that will justify a warrantless search and seizure is not determined by any fixed formula but is resolved according to the facts of each case. 9

Warrantless search of the personal effects of an accused has been declared by this Court as valid, because of existence of probable cause, where the smell of marijuana emanated from a plastic bag owned by the accused, 10or where the accused was acting suspiciously, 11 and attempted to flee. 12

Aside from the persistent reports received by the NARCOM that vehicles coming from Sagada were transporting marijuana and other prohibited drugs, their Commanding Officer also received information that a Caucasian coming from Sagada on that particular day had prohibited drugs in his possession. Said information was received by the Commanding Officer of NARCOM the very same morning that accused came down by bus from Sagada on his way to Baguio City.

When NARCOM received the information, a few hours before the apprehension of herein accused, that a Caucasian travelling from Sagada to Baguio City was carrying with him prohibited drugs, there was no time to obtain a search warrant. In the Tangliben   case, 13 the police authorities conducted a surveillance at the Victory Liner Terminal located at Bgy. San Nicolas, San Fernando Pampanga, against persons engaged in the traffic of dangerous drugs, based on information supplied by some informers. Accused Tangliben who was acting suspiciously and pointed out by an informer was apprehended and searched by the police authorities. It was held that when faced with on-the-spot information, the police officers had to act quickly and there was no time to secure a search warrant.

It must be observed that, at first, the NARCOM officers merely conducted a routine check of the bus (where accused was riding) and the passengers therein, and no extensive search was initially made. It was only when one of the officers noticed a bulge on the waist of accused, during the course of the inspection, that accused was required to present his passport. The failure of

accused to present his identification papers, when ordered to do so, only managed to arouse the suspicion of the officer that accused was trying to hide his identity. For is it not a regular norm for an innocent man, who has nothing to hide from the authorities, to readily present his identification papers when required to do so?

The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession, plus the suspicious failure of the accused to produce his passport, taken together as a whole, led the NARCOM officers to reasonably believe that the accused was trying to hide something illegal from the authorities. From these circumstances arose a  probable cause which justified the warrantless search that was made on the personal effects of the accused. In other words, the acts of the NARCOM officers in requiring the accused to open his pouch bag and in opening one of the wrapped objects found inside said bag (which was discovered to contain hashish) as well as the two (2) travelling bags containing two (2) teddy bears with hashish stuffed inside them, were prompted by accused's own attempt to hide his identity by refusing to present his passport, and by the information received by the NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession. To deprive the NARCOM agents of the ability and facility to act accordingly, including, to search even without warrant, in the light of such circumstances, would be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society.

WHEREFORE, premises considered, the appealed judgment of conviction by the trial court is hereby AFFIRMED. Costs against the accused-appellant.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,   vs. RUBEN MONTILLA y GATDULA, accused-appellant.

D E C I S I O N

REGALADO, J.:

Accused-Appellant Ruben Montilla y Gatdula, alias "Joy," was charged on August 22, 1994 for violating Section 4, Article II of the Dangerous Drugs Act of 1972, Republic Act No. 6425, as amended by Republic Act No. 7659, before the Regional Trial Court, Branch 90, of Dasmariñas, Cavite in an information which alleges:

That on or about the 20th day of June 1994, at Barangay Salitran, Municipality of Dasmariñas, Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and there, wilfully, unlawfully and feloniously, administer, transport, and deliver twenty-eight (28) kilos of dried marijuana leaves, which are considered prohibited drugs, in violation of the provisions of R.A. 6425 thereby causing damage and prejudice to the public interest.[1]

The consequent arraignment conducted on September 14, 1994 elicited a plea of not guilty from appellant who was assisted therein by his counsel de parte.[2] Trial was held on scheduled dates thereafter, which culminated in a verdict of guilty in a decision of the trial court dated June 8, 1995 and which imposed the extreme penalty of death on appellant. He was further ordered to pay a fine in the amount of P500,000.00 and to pay the costs of the proceedings.[3]

It appears from the evidence of the prosecution that appellant was apprehended at around 4:00 A.M. of June 20, 1994 near a waiting shed located at Barangay Salitran, Dasmariñas, Cavite by SPO1 Concordio Talingting and SPO1 Armando Clarin, both members of the Cavite Philippine National Police Command based in Dasmariñas. Appellant, according to the two officers, was caught transporting 28 marijuana bricks contained in a traveling bag and a carton box, which marijuana bricks had a total weight of 28 kilos.

These two officers later asserted in court that they were aided by an informer in the arrest of appellant. That informer, according to Talingting and Clarin, had informed them the day before, or on June 19, 1994 at about 2:00 P.M., that a drug courier, whom said informer could recognize, would be arriving somewhere in Barangay Salitran, Dasmariñas from Baguio City with an undetermined amount of marijuana. It was the same informer who pinpointed to the arresting officers the appellant when the latter alighted from a passenger jeepney on the aforestated day, hour, and place.[4]

Upon the other hand, appellant disavowed ownership of the prohibited drugs. He claimed during the trial that while he indeed came all the way from Baguio City, he traveled to Dasmariñas, Cavite with only some pocket money and without any luggage. His sole purpose in going there was to look up his cousin who had earlier offered a prospective job at a garment factory in said locality, after which he would return to Baguio City. He never got around to doing so as he was accosted by SPO1 Talingting and SPO1 Clarin at Barangay Salitran.

He further averred that when he was interrogated at a house in Dasmariñas, Cavite, he was never informed of his constitutional rights and was in fact even robbed of the P500.00 which he had with him. Melita Adaci, the cousin, corroborated appellant's testimony about the job offer in the garment factory where she reportedly worked as a supervisor, [5] although, as the trial court observed, she never presented any document to prove her alleged employment.

In the present appellate review, appellant disputes the trial court's finding that he was legally caught in flagrante transporting the prohibited drugs. This Court, after an objective and exhaustive review of the evidence on record, discerns no reversible error in the factual findings of the trial court. It finds unassailable the reliance of the lower court on the positive testimonies of the police officers to whom no ill motives can be attributed, and its rejection of appellant's fragile defense of denial which is evidently self-serving in nature.

1. Firstly, appellant asserts that the court a quo grossly erred in convicting him on the basis of insufficient evidence as no proof was proffered showing that he wilfully, unlawfully, and feloniously administered, transported, and delivered 28 kilos of dried marijuana leaves, since the police officers "testified only on the alleged transporting of Marijuana from Baguio City to Cavite."

Further, the failure of the prosecution to present in court the civilian informant is supposedly corrosive of the People's cause since, aside from impinging upon appellant's fundamental right to confront the witnesses against him, that informant was a vital personality in the operation who would have contradicted the hearsay and conflicting testimonies of the arresting officers on how appellant was collared by them.

The pertinent provision of the penal law here involved, in Section 4 of Article II thereof, as amended, is as follows:

SEC. 4. Sale,   Administration,   Delivery,   Distribution   and   Transportation   of Prohibited Drugs. - The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions.

Notwithstanding the provision of Section 20 of this Act to the contrary, if the victim of the offense is a minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty herein provided shall be imposed.

Now, the offense ascribed to appellant is a violation of the Dangerous Drugs Act, some of the various modes of commission[6] being the sale, administration, delivery, distribution, and transportation of prohibited drugs as set forth in the epigraph of Section 4, Article II of said law. The text of Section 4 expands and extends its punitive scope to other acts besides those mentioned in its headnote by including these who shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions." Section

4 could thus be violated by the commission of any of the acts specified therein, or a combination thereof, such as selling, administering, delivering, giving away, distributing, dispatching in transit or transporting, and the like.

As already stated, appellant was charged with a violation of Section 4, the transgressive acts alleged therein and attributed to appellant being that he administered, delivered, and transported marijuana. The governing rule with respect to an offense which may be committed in any of the different modes provided by law is that an indictment would suffice if the offense is alleged to have been committed in one, two or more modes specified therein. This is so as allegations in the information of the various ways of committing the offense should be considered as a description of only one offense and the information cannot be dismissed on the ground of multifariousness. [7] In appellant's case, the prosecution adduced evidence clearly establishing that he transported marijuana from Baguio City to Cavite. By that act alone of transporting the illicit drugs, appellant had already run afoul of that particular section of the statute, hence, appellant's asseverations must fail.

The Court also disagrees with the contention of appellant that the civilian informer should have been produced in court considering that his testimony was "vital" and his presence in court was essential in order to give effect to or recognition of appellant's constitutional right to confront the witnesses arrayed by the State against him. These assertions are, however, much too strained. Far from compromising the primacy of appellant's right to confrontation, the non-presentation of the informer in this instance was justified and cannot be faulted as error.

For one, the testimony of said informer would have been, at best, merely corroborative of the declarations of SPO1 Talingting and SPO1 Clarin before the trial court, which testimonies are not hearsay as both testified upon matters in which they had personally taken part. As such, the testimony of the informer could be dispensed with by the prosecution, [8] more so where what he would have corroborated are the narrations of law enforcers on whose performance of duties regularity is the prevailing legal presumption. Besides, informants are generally not presented in court because of the need to hide their identities and preserve their invaluable services to the police.[9] Moreover, it is up to the prosecution whom to present in court as its witnesses, and not for the defense to dictate that course.[10] Finally, appellant could very well have resorted to the coercive process of subpoena to compel that eyewitness to appear before the court below,[11] but which remedy was not availed of by him.

2. Appellant contends that the marijuana bricks were confiscated in the course of an unlawful warrantless search and seizure. He calls the attention of the Court to the fact that as early as 2:00 P.M. of the preceding day, June 19, 1994, the police authorities had already been apprised by their so-called informer of appellant's impending arrival from Baguio City, hence those law enforcers had the opportunity to procure the requisite warrant. Their misfeasance should therefore invalidate the search for and seizure of the marijuana, as well as the arrest of appellant on the following dawn. Once again, the Court is not persuaded.

Section 2, Article III of the Constitution lays down the general rule that a search and seizure must be carried out through or on the strength of a judicial warrant, absent which such search and seizure becomes "unreasonable" within the meaning of said constitutional provision.[12] Evidence secured on the occasion of such an unreasonable search and seizure is tainted and should be excluded for being the proverbial fruit of a poisonous tree. In the language of the fundamental law, it shall be inadmissible in evidence for any purpose in any proceeding. This exclusionary rule is not, however, an absolute and rigid proscription. Thus, (1) customs searches;[13] (2) searches of moving vehicles,[14] (3) seizure of evidence in plain view;[15] (4) consented searches;[16] (5) searches incidental to a lawful arrest;[17] and (6) "stop and frisk" measures[18] have been invariably recognized as the traditional exceptions.

In appellant's case, it should be noted that the information relayed by the civilian informant to the law enforcers was that there would be delivery of marijuana at Barangay Salitran by a courier coming from Baguio City in the "early morning" of June 20, 1994. Even assuming that the policemen were not pressed for time, this would be beside the point for, under these circumstances, the information relayed was too sketchy and not detailed enough for the obtention of the corresponding arrest or search

warrant. While there is an indication that the informant knew the courier, the records do not reveal that he knew him by name.

While it is not required that the authorities should know the exact name of the subject of the warrant applied for, there is the additional problem that the informant did not know to whom the drugs would be delivered and at which particular part of the barangay there would be such delivery. Neither did this asset know the precise time of the suspect's arrival, or his means of transportation, the container or contrivance wherein the drugs were concealed and whether the same were arriving together with, or were being brought by someone separately from, the courier.

On such bare information, the police authorities could not have properly applied for a warrant, assuming that they could readily have access to a judge or a court that was still open by the time they could make preparations for applying therefor, and on which there is no evidence presented by the defense. In determining the opportunity for obtaining warrants, not only the intervening time is controlling but all the coincident and ambient circumstances should be considered, especially in rural areas. In fact, the police had to form a surveillance team and to lay down a dragnet at the possible entry points to Barangay Salitran at midnight of that day notwithstanding the tip regarding the "early morning" arrival of the courier. Their leader, SPO2 Cali, had to reconnoiter inside and around the barangay as backup, unsure as they were of the time when and the place in Barangay Salitran, where their suspect would show up, and how he would do so.

On the other hand, that they nonetheless believed the informant is not surprising for, as both SPO1 Clarin and SPO1 Talingting recalled, he had proved to be a reliable source in past operations. Moreover, experience shows that although information gathered and passed on by these assets to law enforcers are vague and piecemeal, and not as neatly and completely packaged as one would expect from a professional spymaster, such tip-offs are sometimes successful as it proved to be in the apprehension of appellant. If the courts of justice are to be of understanding assistance to our law enforcement agencies, it is necessary to adopt a realistic appreciation of the physical and tactical problems of the latter, instead of critically viewing them from the placid and clinical environment of judicial chambers.

3. On the defense argument that the warrantless search conducted on appellant invalidates the evidence obtained from him, still the search on his belongings and the consequent confiscation of the illegal drugs as a result thereof was justified as a search incidental to a lawful arrest under Section 5(a), Rule 113 of the Rules of Court. Under that provision, a peace officer or a private person may, without a warrant, arrest a person when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense.

A legitimate warrantless arrest, as above contemplated, necessarily cloaks the arresting police officer with authority to validly search and seize from the offender (1) dangerous weapons, and (2) those that may be used as proof of the commission of an offense.[19] On the other hand, the apprehending officer must have been spurred by probable cause in effecting an arrest which could be classified as one in cadence with the instances of permissible arrests set out in Section 5(a).[20] These instances have been applied to arrests carried out on persons caught in flagrante delicto. The conventional view is that probable cause, while largely a relative term the determination of which must be resolved according to the facts of each case, is understood as having reference to such facts and circumstances which could lead a reasonable, discreet, and prudent man to believe and conclude as to the commission of an offense, and that the objects sought in connection with the offense are in the place sought to be searched.[21]

Parenthetically, if we may digress, it is time to observe that the evidentiary measure for the propriety of filing criminal charges and, correlatively, for effecting a warrantless arrest, has been reduced and liberalized. In the past, our statutory rules and jurisprudence required prima facie evidence, which was of a higher degree or quantum,[22] and was even used with dubiety as equivalent to "probable cause." Yet, even in the American jurisdiction from which we derived the term and its concept, probable cause is understood to merely mean a reasonable ground for belief in the existence of facts warranting the proceedings complained of,[23] or an apparent state of facts

found to exist upon reasonable inquiry which would induce a reasonably intelligent and prudent man to believe that the accused person had committed the crime.[24]

Felicitously, those problems and confusing concepts were clarified and set aright, at least on the issue under discussion, by the 1985 amendment of the Rules of Court which provides in Rule 112 thereof that the quantum of evidence required in preliminary investigation is such evidence as suffices to "engender a well founded belief" as to the fact of the commission of a crime and the respondent's probable guilt thereof.[25] It has the same meaning as the related phraseology used in other parts of the same Rule, that is, that the investigating fiscal "finds cause to hold the respondent for trial," or where "a probable cause exists."[26] It should, therefore, be in that sense, wherein the right to effect a warrantless arrest should be considered as legally authorized.

In the case at bar, as soon as appellant had alighted from the passenger jeepney the informer at once indicated to the officers that their suspect was at hand by pointing to him from the waiting shed. SPO1 Clarin recounted that the informer told them that the marijuana was likely hidden inside the traveling bag and carton box which appellant was carrying at the time. The officers thus realized that he was their man even if he was simply carrying a seemingly innocent looking pair of luggage for personal effects. Accordingly, they approached appellant, introduced themselves as policemen, and requested him to open and show them the contents of the traveling bag, which appellant voluntarily and readily did. Upon cursory inspection by SPO1 Clarin, the bag yielded the prohibited drugs, so, without bothering to further search the box, they brought appellant and his luggage to their headquarters for questioning.

Appellant insists that the mere fact of seeing a person carrying a traveling bag and a carton box should not elicit the slightest suspicion of the commission of any crime since that is normal. But, precisely, it is in the ordinary nature of things that drugs being illegally transported are necessarily hidden in containers and concealed from view. Thus, the officers could reasonably assume, and not merely on a hollow suspicion since the informant was by their side and had so informed them, that the drugs were in appellant's luggage. It would obviously have been irresponsible, if not downright absurd under the circumstances, to require the constable to adopt a "wait and see" attitude at the risk of eventually losing the quarry.

Here, there were sufficient facts antecedent to the search and seizure that, at the point prior to the search, were already constitutive of probable cause, and which by themselves could properly create in the minds of the officers a well-grounded and reasonable belief that appellant was in the act of violating the law. The search yielded affirmance both of that probable cause and the actuality that appellant was then actually committing a crime by illegally transporting prohibited drugs. With these attendant facts, it is ineluctable that appellant was caught in flagrante   delicto, hence his arrest and the search of his belongings without the requisite warrant were both justified.

Furthermore, that appellant also consented to the search is borne out by the evidence. To repeat, when the officers approached appellant and introduced themselves as policemen, they asked him about the contents of his luggage, and after he replied that they contained personal effects, the officers asked him to open the traveling bag. Appellant readily acceded, presumably or in all likelihood resigned to the fact that the law had caught up with his criminal activities. When an individual voluntarily submits to a search or consents to have the same conducted upon his person or premises, he is precluded from later complaining thereof.

After all, the right to be secure from unreasonable search may, like other rights, be waived either expressly or impliedly. [27] Thus, while it has been held that the silence of the accused during a warrantless search should not be taken to mean consent to the search but as a demonstration of that person's regard for the supremacy of the law,[28] the case of herein appellant is evidently different for, here, he spontaneously performed affirmative acts of volition by himself opening the bag without being forced or intimidated to do so, which acts should properly be construed as a clear waiver of his right.[29]

4. Appellant likewise harps on the alleged failure of the prosecution to "legally, properly and adequately establish that the 28 bricks of marijuana allegedly confiscated from (him) were the same marijuana examined by the

forensic chemist and presented in court." Indeed, the arresting officers did not identify in court the marijuana bricks seized from appellant since, in fact they did not have to do so. It should be noted that the prosecution presented in the court below and formally offered in evidence those 28 bricks of marijuana together with the traveling bag and the carton box in which the same were contained. The articles were properly marked as confiscated evidence and proper safeguards were taken to ensure that the marijuana turned over to the chemist for examination, and which subsequently proved positive as such, were the same drugs taken from appellant. The trial court, therefore, correctly admitted them in evidence, satisfied that the articles were indubitably no other than those taken from appellant.

Complementarily, the corpus  delicti was firmly established by SPO1 Clarin and SPO1 Talingting who categorically related that when they had ascertained that the contents of the traveling bag of appellant appeared to be marijuana, they forthwith asked him where he had come from, and the latter readily answered "Baguio City," thus confirming the veracity of the report of the informer. No other conclusion can therefore be derived than that appellant had transported the illicit drugs all the way to Cavite from Baguio City. Coupled with the presentation in court of the subject matter of the crime, the marijuana bricks which had tested positive as being indian hemp, the guilt of appellant for transporting the prohibited drugs in violation of the law is beyond doubt.

Appellant questions the interrogation conducted by the police authorities, claiming that he was not allowed to communicate with anybody, and that he was not duly informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. Indeed, appellant has a point. The police authorities here could possibly have violated the provision of Republic Act No. 7438[30] which defines certain rights of persons arrested, detained, or under custodial investigation, as well as the duties of the arresting, detaining, and investigating officers, and providing corresponding penalties for violations thereof.

Assuming the existence of such irregularities, however, the proceedings in the lower court will not necessarily be struck down. Firstly, appellant never admitted or confessed anything during his custodial investigation. Thus, no incriminatory evidence in the nature of a compelled or involuntary confession or admission was elicited from him which would otherwise have been inadmissible in evidence. Secondly and more importantly, the guilt of appellant was clearly established by other evidence adduced by the prosecution, particularly the testimonies of the arresting officers together with the documentary and object evidence which were formally offered and admitted in evidence in the court below.

5. The reversible error of the trial court lies in its imposition of the penalty of death on appellant. As amended by Republic Act No. 7659, Section 20, Article IV of the Dangerous Drugs Act now provides inter alia that the penalty in Section 4 of Article II shall be applied if the dangerous drugs involved is, in the case of indian hemp or marijuana, 750 grams or more. In said Section 4, the transporting of prohibited drugs carries with it the penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos. Thus, the law prescribes a penalty composed of two indivisible penalties, reclusion   perpetua and death. In the present case, Article 63 of the Revised Penal Code consequently provides the rules to be observed in the application of said penalties.

As found by the trial court, there were neither mitigating nor aggravating circumstances attending appellant's violation of the law, hence the second paragraph of Article 63 must necessarily apply, in which case the lesser penalty of reclusion perpetua is the proper imposable penalty. Contrary to the pronouncement of the court a   quo, it was never intended by the legislature that where the quantity of the dangerous drugs involved exceeds those stated in Section 20, the maximum penalty of death shall be imposed. Nowhere in the amendatory law is there a provision from which such a conclusion may be gleaned or deduced. On the contrary, this Court has already concluded that Republic Act No. 7659 did not amend Article 63 of the Revised Penal Code,[31] the rules wherein were observed although the cocaine subject of that case was also in excess of the quantity provided in Section 20.

It is worth mentioning at this juncture that the law itself provides a specific penalty where the violation thereof is in its aggravated form as laid down in the second paragraph of Section 4 whereby, regardless of Section 20 of Article IV, if the victim is a minor, or should a prohibited drug involved in any offense in said section be the proximate cause of the death of a victim thereof, the maximum penalty shall be imposed. [32] While the minority or the death of the victim will increase the liability of the offender, these two facts do not constitute generic aggravating circumstances, as the law simply provides for the imposition of the single indivisible penalty of death if the offense is attended by either of such factual features. In that situation, obviously the rules on the graduation of penalties in Article 63 cannot apply. In herein appellant's case, there was neither a minor victim nor a consequent death of any victim. Hence, the basic rules in Article 63 of the Code govern.

WHEREFORE, the judgment of the Regional Trial Court, Branch 90, of Dasmariñas, Cavite in Criminal Case No. 3401-94 is hereby MODIFIED in the sense that accused-appellant Ruben Montilla y Gatdula shall suffer the penalty of reclusion perpetua. In all other respects, the judgment of the trial court is hereby AFFIRMED, with costs against accused-appellant.

SO ORDERED.

People v Acol 232 SCRA 406

Facts:After declaring a hold up and robbing the jeepney passengers of their belongings, Acol et. al. was shortlyapprehended when one of them was identified by their erstwhile victims wearing the latter’s jacket, who was part of the group that reported the incident to the authorities shortly after the incident. The arrested was perfected by CAPCOM agents. Incident to their arrest, the agents found the accused in possessionof illegal firearms which were then confiscated in favor of the Government.

Issue:

1)WON: Was the search conducted on the person of the accused et al valid as the officers earlier claimed itwas done without a search warrant?

2)WON: Were the items seized from the person of the accused et al inadmissible as evidence. ?

Held:

1) The Supreme Court Held that: With respect to the so-called warrantless arrest of accused--appellant, we are of the view that the search falls within the purview of Section 5(b) of Rule 113 which serves as an exception to the requisite warrant prior to arrest: When an offense has in fact been committed, and the has personal knowledge of facts indicating that the person to be arrested has committed it; inasmuch as the police team was formed and dispatched to look for the persons responsible for the crime on account of the information related by Percival Tan and Rene Araneta that they had just been robbed. And since accused-appellant's arrest was lawful, it follows that the search made incidental thereto was valid. Also, items subject to seizure are: 1) object of the offense, 2) Items gained or profited from the commission of the offense, and 3) items used for the commission of the offense.2)Moreover, the unlicensed firearms were found when the police team apprehended the accused for the robbery and not for illegal possession of firearms and ammunition. The principle imparted by Justice Padilla in Cruz was based on the ruling of this Court in Magoncia vs. Palacio that:

. . . When, in pursuing an illegal action or in the commission of a criminal offense, the offending police officers should happen to discover a criminal offense being committed by any person, they are not precluded from performing their duties as police officers for the apprehension of the guilty person and the taking of the corpus delicti.

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