Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

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

JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS MEDIA SERVICES, INC.,petitioners, vs.THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF, PHILIPPINE CONSTABULARY, THE CHIEF LEGAL OFFICER, PRESIDENTIAL SECURITY COMMAND, THE JUDGE ADVOCATE GENERAL, ET AL., respondents.

Lorenzo M. Tañada, Wigberto E. Tañada, Martiniano Vivo, Augusto Sanchez, Joker P. Arroyo, Jejomar Binay and Rene Saguisag for petitioners.

The Solicitor General for respondents.

 

ESCOLIN, J.:

Assailed in this petition for certiorari prohibition and mandamus with preliminary mandatory and prohibitory injunction is the validity of two [2] search warrants issued on December 7, 1982 by respondent Judge Ernani Cruz-Pano, Executive Judge of the then Court of First Instance of Rizal [Quezon City], under which the premises known as No. 19, Road 3, Project 6, Quezon City, and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, business addresses of the "Metropolitan Mail" and "We Forum" newspapers, respectively, were searched, and office and printing machines, equipment, paraphernalia, motor vehicles and other articles used in the printing, publication and distribution of the said newspapers, as well as numerous papers, documents, books and other written literature alleged to be in the possession and control of petitioner Jose Burgos, Jr. publisher-editor of the "We Forum" newspaper, were seized.

Petitioners further pray that a writ of preliminary mandatory and prohibitory injunction be issued for the return of the seized articles, and that respondents, "particularly the Chief Legal Officer, Presidential Security Command, the Judge Advocate General, AFP, the City Fiscal of Quezon City, their representatives, assistants, subalterns, subordinates, substitute or successors" be enjoined from using the articles thus seized as evidence against petitioner Jose Burgos, Jr. and the other accused in Criminal Case No. Q- 022782 of the Regional Trial Court of Quezon City, entitled People v. Jose Burgos, Jr. et al. 1

In our Resolution dated June 21, 1983, respondents were required to answer the petition. The plea for preliminary mandatory and prohibitory injunction was set for hearing on June 28, 1983, later reset to July 7, 1983, on motion of the Solicitor General in behalf of respondents.

At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners' prayer for a writ of preliminary mandatory injunction, manifested that respondents "will not use the aforementioned articles as evidence in the aforementioned case until final resolution of the legality of the seizure of

the aforementioned articles. ..." 2 With this manifestation, the prayer for preliminary prohibitory injunction was rendered moot and academic.

Respondents would have this Court dismiss the petition on the ground that petitioners had come to this Court without having previously sought the quashal of the search warrants before respondent judge. Indeed, petitioners, before impugning the validity of the warrants before this Court, should have filed a motion to quash said warrants in the court that issued them. 3 But this procedural flaw notwithstanding, we take cognizance of this petition in view of the seriousness and urgency of the constitutional issues raised not to mention the public interest generated by the search of the "We Forum" offices, which was televised in Channel 7 and widely publicized in all metropolitan dailies. The existence of this special circumstance justifies this Court to exercise its inherent power to suspend its rules. In the words of the revered Mr. Justice Abad Santos in the case of C. Vda. de Ordoveza v. Raymundo, 4 "it is always in the power of the court [Supreme Court] to suspend its rules or to except a particular case from its operation, whenever the purposes of justice require it...".

Respondents likewise urge dismissal of the petition on ground of laches. Considerable stress is laid on the fact that while said search warrants were issued on December 7, 1982, the instant petition impugning the same was filed only on June 16, 1983 or after the lapse of a period of more than six [6] months.

Laches is failure or negligence for an unreasonable and unexplained length of time to do that which, by exercising due diligence, could or should have been done earlier. It is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it. 5

Petitioners, in their Consolidated Reply, explained the reason for the delay in the filing of the petition thus:

Respondents should not find fault, as they now do [p. 1, Answer, p. 3, Manifestation] with the fact that the Petition was filed on June 16, 1983, more than half a year after the petitioners' premises had been raided.

The climate of the times has given petitioners no other choice. If they had waited this long to bring their case to court, it was because they tried at first to exhaust other remedies. The events of the past eleven fill years had taught them that everything in this country, from release of public funds to release of detained persons from custody, has become a matter of executive benevolence or largesse

Hence, as soon as they could, petitioners, upon suggestion of persons close to the President, like Fiscal Flaminiano, sent a letter to President Marcos, through counsel Antonio Coronet asking the return at least of the printing equipment and vehicles. And after such a letter had been sent, through Col. Balbino V. Diego, Chief Intelligence and Legal Officer of the Presidential Security Command, they were further encouraged to hope that the latter would yield the desired results.

After waiting in vain for five [5] months, petitioners finally decided to come to Court. [pp. 123-124, Rollo]

Although the reason given by petitioners may not be flattering to our judicial system, We find no ground to punish or chastise them for an error in judgment. On the contrary, the extrajudicial efforts exerted by petitioners quite evidently negate the presumption that they had abandoned their right to the possession of the seized property, thereby refuting the charge of laches against them.

Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used and marked as evidence some of the seized documents in Criminal Case No. Q- 022872, he is now estopped from challenging the validity of the search warrants. We do not follow the logic of respondents. These documents lawfully belong to petitioner Jose Burgos, Jr. and he can do whatever he pleases with them, within legal bounds. The fact that he has used them as evidence does not and cannot in any way affect the validity or invalidity of the search warrants assailed in this petition.

Several and diverse reasons have been advanced by petitioners to nullify the search warrants in question.

1. Petitioners fault respondent judge for his alleged failure to conduct an examination under oath or affirmation of the applicant and his witnesses, as mandated by the above-quoted constitutional provision as wen as Sec. 4, Rule 126 of the Rules of Court . 6 This objection, however, may properly be considered moot and academic, as petitioners themselves conceded during the hearing on August 9, 1983, that an examination had indeed been conducted by respondent judge of Col. Abadilla and his witnesses.

2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two distinct places: No. 19, Road 3, Project 6, Quezon City and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, respectively. Objection is interposed to the execution of Search Warrant No. 20-82[b] at the latter address on the ground that the two search warrants pinpointed only one place where petitioner Jose Burgos, Jr. was allegedly keeping and concealing the articles listed therein, i.e., No. 19, Road 3, Project 6, Quezon City. This assertion is based on that portion of Search Warrant No. 20- 82[b] which states:

Which have been used, and are being used as instruments and means of committing the crime of subversion penalized under P.D. 885 as amended and he is keeping and concealing the same at 19 Road 3, Project 6, Quezon City.

The defect pointed out is obviously a typographical error. Precisely, two search warrants were applied for and issued because the purpose and intent were to search two distinct premises. It would be quite absurd and illogical for respondent judge to have issued two warrants intended for one and the same place. Besides, the addresses of the places sought to be searched were specifically set forth in the application, and since it was Col. Abadilla himself who headed the team which executed the search warrants, the ambiguity that might have arisen by reason of the typographical error is more apparent than real. The fact is that the place for which Search Warrant No. 20- 82[b] was applied for was 728 Units C & D, RMS Building, Quezon Avenue, Quezon City, which address appeared in the opening paragraph of the said warrant. 7 Obviously this is the same place that respondent judge had in mind when he issued Warrant No. 20-82 [b].

In the determination of whether a search warrant describes the premises to be searched with sufficient particularity, it has been held "that the executing officer's prior knowledge as to the place intended in the warrant is relevant. This would seem to be especially true where the executing officer is the affiant on whose affidavit the warrant had issued, and when he knows that the judge who issued the warrant intended the building described in the affidavit, And it has also been said that the executing officer may look to the affidavit in the official court file to resolve an ambiguity in the warrant as to the place to be searched." 8

3. Another ground relied upon to annul the search warrants is the fact that although the warrants were directed against Jose Burgos, Jr. alone, articles b belonging to his co-petitioners Jose Burgos, Sr., Bayani Soriano and the J. Burgos Media Services, Inc. were seized.

Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be seized under a search warrant, to wit:

Sec. 2. Personal Property to be seized. — A search warrant may be issued for the search and seizure of the following personal property:

[a] Property subject of the offense;

[b] Property stolen or embezzled and other proceeds or fruits of the offense; and

[c] Property used or intended to be used as the means of committing an offense.

The above rule does not require that the property to be seized should be owned by the person against whom the search warrant is directed. It may or may not be owned by him. In fact, under subsection [b] of the above-quoted Section 2, one of the properties that may be seized is stolen property. Necessarily, stolen property must be owned by one other than the person in whose possession it may be at the time of the search and seizure. Ownership, therefore, is of no consequence, and it is sufficient that the person against whom the warrant is directed has control or possession of the property sought to be seized, as petitioner Jose Burgos, Jr. was alleged to have in relation to the articles and property seized under the warrants.

4. Neither is there merit in petitioners' assertion that real properties were seized under the disputed warrants. Under Article 415[5] of the Civil Code of the Philippines, "machinery, receptables, instruments or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land and which tend directly to meet the needs of the said industry or works" are considered immovable property. In Davao Sawmill Co. v. Castillo 9 where this legal provision was invoked, this Court ruled that machinery which is movable by nature becomes immobilized when placed by the owner of the tenement, property or plant, but not so when placed by a tenant, usufructuary, or any other person having only a temporary right, unless such person acted as the agent of the owner.

In the case at bar, petitioners do not claim to be the owners of the land and/or building on which the machineries were placed. This being the case, the machineries in question, while in fact bolted to the ground remain movable property susceptible to seizure under a search warrant.

5. The questioned search warrants were issued by respondent judge upon application of Col. Rolando N. Abadilla Intelligence Officer of the P.C. Metrocom. 10 The application was accompanied by the Joint Affidavit of Alejandro M. Gutierrez and Pedro U. Tango, 11 members of the Metrocom Intelligence and Security Group under Col. Abadilla which conducted a surveillance of the premises prior to the filing of the application for the search warrants on December 7, 1982.

It is contended by petitioners, however, that the abovementioned documents could not have provided sufficient basis for the finding of a probable cause upon which a warrant may validly issue in accordance with Section 3, Article IV of the 1973 Constitution which provides:

SEC. 3. ... 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.

We find petitioners' thesis impressed with merit. Probable cause for a search is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. And when the search warrant applied for is directed against a newspaper publisher or editor in connection with the publication of subversive materials, as in the case at bar, the application and/or its supporting affidavits must contain a specification, stating with particularity the alleged subversive material he has published or is intending to publish. Mere generalization will not suffice. Thus, the broad statement in Col. Abadilla's application that petitioner "is in possession or has in his control printing equipment and other paraphernalia, news publications and other documents which were used and are all continuously being used as a means of committing the offense of subversion punishable under Presidential Decree 885, as amended ..." 12 is a mere conclusion of law and does not satisfy the requirements of probable cause. Bereft of such particulars as would justify a finding of the existence of probable cause, said allegation cannot serve as basis for the issuance of a search warrant and it was a grave error for respondent judge to have done so.

Equally insufficient as basis for the determination of probable cause is the statement contained in the joint affidavit of Alejandro M. Gutierrez and Pedro U. Tango, "that the evidence gathered and collated by our unit clearly shows that the premises above- mentioned and the articles and things above-described were used and are continuously being used for subversive activities in conspiracy with, and to promote the objective of, illegal organizations such as the Light-a-Fire Movement, Movement for Free Philippines, and April 6 Movement." 13

In mandating that "no warrant shall issue except upon probable cause to be determined by the judge, ... after examination under oath or affirmation of the complainant and the witnesses he may produce; 14 the Constitution requires no less than personal knowledge by the complainant or his witnesses of the facts upon which the issuance of a search warrant may be justified. In Alvarez v. Court of First Instance, 15 this Court ruled that "the oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause." As couched, the quoted averment in said joint affidavit filed before respondent judge hardly meets the test of sufficiency established by this Court in Alvarez case.

Another factor which makes the search warrants under consideration constitutionally objectionable is that they are in the nature of general warrants. The search warrants describe the articles sought to be seized in this wise:

1] All printing equipment, paraphernalia, paper, ink, photo (equipment, typewriters, cabinets, tables, communications/recording equipment, tape recorders, dictaphone and the like used and/or connected in the printing of the "WE FORUM" newspaper and any and all documents communication, letters and facsimile of prints related to the "WE FORUM" newspaper.

2] Subversive documents, pamphlets, leaflets, books, and other publication to promote the objectives and piurposes of the subversive organization known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement; and,

3] Motor vehicles used in the distribution/circulation of the "WE FORUM" and other subversive materials and propaganda, more particularly,

1] Toyota-Corolla, colored yellow with Plate No. NKA 892;

2] DATSUN pick-up colored white with Plate No. NKV 969

3] A delivery truck with Plate No. NBS 524;

4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and,

5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with marking "Bagong Silang."

In Stanford v. State of Texas 16 the search warrant which authorized the search for "books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party in Texas," was declared void by the U.S. Supreme Court for being too general. In like manner, directions to "seize any evidence in connectionwith the violation of SDC 13-3703 or otherwise" have been held too general, and that portion of a search warrant which authorized the seizure of any "paraphernalia which could be used to violate Sec. 54-197 of the Connecticut General Statutes [the statute dealing with the crime of conspiracy]" was held to be a general warrant, and therefore invalid. 17 The description of the articles sought to be seized under the search warrants in question cannot be characterized differently.

In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in English history: the era of disaccord between the Tudor Government and the English Press, when "Officers of the Crown were given roving commissions to search where they pleased in order to suppress and destroy the literature of dissent both Catholic and Puritan Reference herein to such historical episode would not be relevant for it is not the policy of our government to suppress any newspaper or publication that speaks with "the voice of non-conformity" but poses no clear and imminent danger to state security.

As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and the "We Forum newspapers. As a consequence of the search and seizure, these premises were padlocked and sealed, with the further result that the printing and publication of said newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law, 18 and constitutes a virtual denial of petitioners' freedom to express themselves in print. This state of being is patently anathematic to a democratic framework where a free, alert and even militant press is essential for the political enlightenment and growth of the citizenry.

Respondents would justify the continued sealing of the printing machines on the ground that they have been sequestered under Section 8 of Presidential Decree No. 885, as amended, which authorizes "the sequestration of the property of any person, natural or artificial, engaged in subversive activities against the government and its duly constituted authorities ... in accordance with implementing rules and regulations as may be issued by the Secretary of National Defense." It is doubtful however, if sequestration could validly be effected in view of the absence of any implementing rules and regulations promulgated by the Minister of National Defense.

Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no less than President Marcos himself denied the request of the military authorities to sequester the property seized from petitioners on December 7, 1982. Thus:

The President denied a request flied by government prosecutors for sequestration of the WE FORUM newspaper and its printing presses, according to Information Minister Gregorio S. Cendana.

On the basis of court orders, government agents went to the We Forum offices in Quezon City and took a detailed inventory of the equipment and all materials in the premises.

Cendaña said that because of the denial the newspaper and its equipment remain at the disposal of the owners, subject to the discretion of the court. 19

That the property seized on December 7, 1982 had not been sequestered is further confirmed by the reply of then Foreign Minister Carlos P. Romulo to the letter dated February 10, 1983 of U.S. Congressman Tony P. Hall addressed to President Marcos, expressing alarm over the "WE FORUM " case. 20 In this reply dated February 11, 1983, Minister Romulo stated:

2. Contrary to reports, President Marcos turned down the recommendation of our authorities to close the paper's printing facilities and confiscate the equipment and materials it uses. 21

IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b] issued by respondent judge on December 7, 1982 are hereby declared null and void and are accordingly set aside. The prayer for a writ of mandatory injunction for the return of the seized articles is hereby granted and all articles seized thereunder are hereby ordered released to petitioners. No costs.

SO ORDERED.

Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana, Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur.

Aquino, J., took no part.

Jose Burgos vs. Chief of StaffG.R. No L-64261December 26, 1984

Facts:

Two warrants were issued against petitioners for the search on the premises of “Metropolitan Mail” and “We Forum” newspapers and the seizure of items alleged to have been used in subversive activities. Petitioners prayed that a writ of preliminary mandatory and prohibitory injunction be issued for the return of the seized articles, and that respondents be enjoined from using the articles thus seized as evidence against petitioner.

Petitioners questioned the warrants for the lack of probable cause and that the two warrants issued indicated only one and the same address. In addition, the items seized subject to the warrant were real properties.

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

Held:The defect in the indication of the same address in the two warrants was held by the court as a typographical error and immaterial in view of the correct determination of the place sought to be searched set forth in the application. The purpose and intent to search two distinct premises was evident in the issuance of the two warrant.As to the issue that the  items seized were real properties, the court applied the principle in the case of Davao Sawmill Co. v. Castillo, ruling “that machinery which is movable by nature becomes immobilized when placed by the owner of the tenement, property or plant, but not so when placed by a tenant, usufructuary, or any other person having only a temporary right, unless such person acted as the agent of the owner.” In the case at bar, petitioners did not claim to be the owners of the land and/or building on which the machineries were placed. This being the case, the machineries in question, while in fact bolted to the ground remain movable property susceptible to seizure under a search warrant.However, the Court declared the two warrants null and void.

Probable cause for a search is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched.

The Court ruled that the affidavits submitted for the application of the warrant did not satisfy the requirement of probable cause, the statements of the witnesses having been mere generalizations.

Furthermore, jurisprudence tells of the prohibition on the issuance of general warrants. (Stanford vs. State of Texas). The description and enumeration in the warrant of the items to be searched and seized did not indicate with specification the subversive nature of the said items.

 

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. Nos. 94054-57 February 19, 1991

VICENTE LIM, SR. and MAYOR SUSANA LIM, petitioners, vs.HON. NEMESIO S. FELIX and HON. ANTONIO ALFANE, respondents.

G.R. Nos. 94266-69 February 19, 1991

JOLLY T. FERNANDEZ, FLORENCIO T. FERNANDEZ, JR., NONILON A. BAGALIHOG, MAYOR NESTOR C. LIM and MAYOR ANTONIO KHO, petitioners, vs.HON. NEMESIO S. FELIX and PROSECUTOR ANTONIO C. ALFANE, respondents.

Francisco R. Llamas for petitioners in G.R. Nos. 94054-57.

Jolly T. Fernandez, Elenito Bagalihog, Orlando M. Danao and Hechanova, Ballicid & Associates for petitioners in G.R. Nos. 94266-69.

 

GUTIERREZ, JR., J.:p

May a Judge without ascertaining the facts through his own personal determination and relying solely on the certification or recommendation of a prosecutor that a probable cause exists issue a warrant of arrest?

On March 17, 1989, at about 7:30 o'clock in the morning, at the vicinity of the airport road of the Masbate Domestic Airport, located at the municipality of Masbate province of Masbate, Congressman Moises Espinosa, Sr. and his security escorts, namely Provincial Guards Antonio Cortes, Gaspar Amaro, and Artemio Fuentes were attacked and killed by a lone assassin. Dante Siblante another security escort of Congressman Espinosa, Sr. survived the assassination plot, although, he himself suffered a gunshot wound.

An investigation of the incident then followed.

Thereafter, and for the purpose of preliminary investigation, the designated investigator, Harry O. Tantiado, TSg, of the PC Criminal Investigation Service at Camp Bagong Ibalon Legazpi City filed an amended complaint with the Municipal Trial Court of Masbate accusing, among others, Vicente Lim, Sr., Mayor Susana Lim of Masbate (petitioners in G.R. Nos. 9405457), Jolly T. Fernandez, Florencio T. Fernandez, Jr., Nonilon A. Bagalihog, Mayor Nestor C. Lim and Mayor Antonio Kho (petitioners in

G.R. Nos. 94266-69) of the crime of multiple murder and frustrated murder in connection with the airport incident. The case was docketed as Criminal Case No. 9211.

After conducting the preliminary investigation, the court issued an order dated July 31, 1989 stating therein that:

. . . after weighing the affidavits and answers given by the witnesses for the prosecution during the preliminary examination in searching questions and answers, concludes that a probable cause has been established for the issuance of a warrant of arrest of named accused in the amended complaint, namely, Jimmy Cabarles, Ronnie Fernandez, Nonilon Bagalihog, Jolly Fernandez, Florencio Fernandez, Jr., Vicente Lim, Sr., Susana Lim, Nestor Lim, Antonio Kho, Jaime Liwanag, Zaldy Dumalag and Rene Tualla alias Tidoy. (Rollo, p. 58, G.R. Nos. 94054-57)

xxx xxx xxx

In the same Order, the court ordered the arrest of the petitioners and recommended the amount of P200,000.00 as bail for the provisional liberty of each of the accused.

Petitioners Jolly Fernandez and Nonilon Bagalihog filed a motion for the reduction of bail which was granted by the court and they were allowed to post bail in the amount of P150,000.00 each. Except for Jimmy Cabarles, all the rest of the accused posted bail at P200,000.00 each.

On August 29, 1989, the entire records of the case consisting of two hundred sixty one (261) pages were transmitted to the Provincial Prosecutor of Masbate. Respondent Acting Fiscal Antonio C. Alfane was designated to review the case.

On September 22, 1989, Fiscal Alfane issued a Resolution which affirmed the finding of a prima facie case against the petitioners but differed in the designation of the crime in that the ruled that ". . . all of the accused should not only be charged with Multiple Murder With Frustrated Murder" but for a case of MURDER for each of the killing of the four victims and a physical injuries case for inflicting gunshot wound on the buttocks of Dante Siblante." (Annex "H", Comment of Fiscal Alfane, p. 186, Rollo, G.R. Nos. 94054-57) A motion to reconsider the Resolution filed by petitioners Vicente Lim, Sr. and Mayor Susana Lim was denied.

On October 30, 1989, Fiscal Alfane filed with the Regional Trial Court of Masbate, four (4) separate informations of murder against the twelve (12) accused with a recommendation of no bail.

On November 21, 1989, petitioners Vicente Lim, Sr. and Susana Lim filed with us a verified petition for change of venue. (Case No. A.M. No. 89-11-1270-MTC, formerly, G.R. Nos. 90587-90)

On December 14, 1989, we issued an en banc Resolution authorizing the change of venue from the Regional Trial Court of Masbate to the Regional Trial Court of Makati to avoid a miscarriage of justice, to wit:

Acting on the petition for change of venue of the trial of Criminal Cases Nos. 5811, 5812, 5813, and 5814 from the Regional Trial Court, Masbate, Masbate to any of the Regional Trial Courts at Quezon City or Makati, the Court Resolved to (a) GRANT the aforesaid petition for transfer of venue in order to avoid miscarriage of justice (Article VIII, Section 5(4) of the Philippine Constitution); (b) DIRECT the Clerk of Court, Regional Trial Court, Masbate, Masbate to transmit the records of the

aforesaid cases to the Executive Judge, Regional Trial Court, Makati, for raffling among the other branches of the court; and (c) ORDER the Regional Trial Court of Masbate, Masbate to desist from further taking cognizance of the said cases until such time that the petition is finally resolved.

The cases were raffled to Branch 56 presided by respondent Judge Nemesio S. Felix.

Petitioners Vicente Lim, Sr. and Susana Lim filed with the respondent court several motions and manifestations which in substance prayed for the following:

1. An order be issued requiring the transmittal of the initial records of the preliminary inquiry or investigation conducted by the Municipal Judge Barsaga of Masbate for the best enlightenment of this Honorable Court in its personal determination of the existence of a probable cause or prima facieevidence as well as its determination of the existence of guilt, pursuant to the mandatory mandate of the constitution that no warrant shall issue unless the issuing magistrate shall have himself been personally convinced of such probable cause.

2. Movants be given ample opportunity to file their motion for preliminary investigation as a matter of right; and

3. In the event that this court may later be convinced of the existence of a probable cause, to be allowed to file a motion for reduction of bail or for admission of bail. (p. 17, Rollo, G.R. Nos. 94054-57)

In another manifestation, the Lims reiterated that the court conduct a hearing to determine if there really exists aprima facie case against them in the light of documents which are recantations of some witnesses in the preliminary investigation. The motions and manifestations were opposed by the prosecution.

On July 5, 1990, the respondent court issued an order denying for lack of merit the motions and manifestations and issued warrants of arrest against the accused including the petitioners herein. The respondent Judge said:

In the instant cases, the preliminary investigation was conducted by the Municipal Trial Court of Masbate, Masbate which found the existence of probable cause that the offense of multiple murder was committed and that all the accused are probably guilty thereof, which was affirmed upon review by the Provincial Prosecutor who properly filed with the Regional Trial Court four separate informations for murder. Considering that both the two competent officers to whom such duty was entrusted by law have declared the existence of probable cause, each information is complete in form and substance, and there is no visible defect on its face, this Court finds it just and proper to rely on the prosecutor's certification in each information which reads: (pp. 19-20, Rollo, G.R Nos. 94054-57; Emphasis supplied)

xxx xxx xxx

The petitioners then filed these consolidated petitions questioning the July 5, 1990 Order.

In a Resolution dated July 17, 1990 in G.R. Nos. 94054-57, we issued ". . . a TEMPORARY RESTRAINING ORDER, effective immediately and continuing until further orders from this Court,

ordering the respondent judge or his duly authorized representatives or agents to CEASE and DESIST from enforcing or implementing the warrant of arrest without bail issued against the petitioners in his Order dated July 5, 1990 in Criminal Cases Nos. 5811-14.

In another Resolution dated July 31, 1990 in G.R. Nos. 94266-69, we resolved:

xxx xxx xxx

. . . To ISSUE writs of (1) PRELIMINARY MANDATORY INJUNCTION, ordering and directing the respondent judge to recall/set aside and/or annul the legal effects of the warrants of arrest without bail issued against and served upon herein petitioners Jolly T. Fernandez, Florencio T. Fernandez, Jr. and Nonilon Bagalihog and release them from confinement at PC-CIS Detention Center, Camp Crame, Quezon City; and (2) TEMPORARY RESTRAINING ORDER, effective immediately and continuing until further orders from this Court, ordering the respondent judge or his duly authorized representatives or agents, to CEASE AND DESIST from enforcing or implementing the warrants of arrest without bail issued against petitioners Mayors Nestor C. Lim and Antonio T. Kho.

The primary issue in these consolidated petitions centers on whether or not a judge may issue a warrant of arrest without bail by simply relying on the prosecution's certification and recommendation that a probable cause exists.

This is not a novel question. In the case of Placer v. Villanueva (126 SCRA 463 [1983]), we ruled that a judge may rely upon the fiscal's certification of the existence of probable cause and, on the basis thereof, issue a warrant of arrest. However, the certification does not bind the judge to come out with the warrant of arrest. This decision interpreted the "search and seizure" provision of the 1973 Constitution which provides:

. . . 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 . . .

We ruled:

. . . The issuance of a warrant is not a mere ministerial function; it calls for the exercise of judicial discretion on the part of the issuing magistrate. This is clear from the following provisions of Section 6, Rule 112 of the Rules of Court.

Warrant of arrest, when issued. — If the judge be satisfied from the preliminary examination conducted by him or by the investigating officer that the offense complained of has been committed and that there is reasonable ground to believe that the accused has committed it, he must issue a warrant or order for his arrest.

Under this section, the judge must satisfy himself of the existence of probable cause before issuing a warrant or order of arrest. If on the face of the information the judge finds no probable cause, he may disregard the fiscal's certification and require the submission of the affidavits of witnesses to aid him in arriving at a conclusion as to the existence of a probable cause. This has been the rule since U.S. v. Ocampo (18 Phil. 1) and Amarga v. Abbas (98 Phil. 739). And this evidently is the reason for the

issuance by respondent of the questioned orders of April 13, 15, 16, 19, 1982 and July 13, 1982. Without the affidavits of the prosecution witnesses and other evidence which, as a matter of long-standing practice had been attached to the information filed in his sala, respondent found the informations inadequate bases for the determination of probable cause. For as the ensuing events would show, after petitioners had submitted the required affidavits, respondent wasted no time in issuing the warrants of arrest in the case where he was satisfied that probable cause existed.

The case of Soliven v. Makasiar (167 SCRA 393 [19881) was decided after the effectivity of the 1987 Constitution. We stated:

The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads:

Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination 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 addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other respondent officers as may be authorized by law", has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of arrest. This is not an accurate interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedures, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examinations and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.

The decision in People v. Honorable Enrique B. Inting, et al. (G.R. No. 88919, July 25, 1990), reiterated the above interpretation of "personal" determination by the Judge:

We emphasize important features of the constitutional mandate that ". . . no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge . . ." (Article III, Section 2, Constitution)

First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this determination.

Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the determination of probable cause. The Judge does not have to follow what the Prosecutor presents to him. By itself, the Prosecutor's certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents behind the Prosecutor's certification which are material in assisting the Judge to make his determination.

And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper –– whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial –– is the function of the Prosecutor.

The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [19891):

Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have authority to conduct preliminary investigations. That authority, at one time reposed in them under Sections 13, 14 and 16, Rule 112 of the Rules of Court of 1964, (See Sec. 4, Rule 108, Rules of Court of 1940; People v. Solon, 47 Phil. 443, cited in Moran, Comments on the Rules, 1980 ed., Vol. 4, pp. 115-116) was removed from them by the 1985 Rules on Criminal Procedure, effective on January 1, 1985, (Promulgated on November 11, 1984) which deleted all provisions granting that power to said Judges. We had occasion to point tills out in Salta v. Court of Appeals, 143 SCRA 228, and to stress as well certain other basic propositions, namely: (1) that the conduct of a preliminary investigation is "not a judicial function . . . (but) part of the prosecution's job, a function of the executive," (2) that whenever "there are enough his or prosecutors to conduct preliminary investigations, courts are counseled to leave this job which is essentially executive to them," and the fact "that a certain power is granted does not necessary mean that it should be indiscriminately exercised.

The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on October 1, 1988, (The 1988 Amendments were published in the issue of Bulletin Today of October 29, 1988) did not restore that authority to Judges of Regional Trial Courts; said amendments did not in fact deal at all with the officers or courts having authority to conduct preliminary investigations.

This is not to say, however, that somewhere along the line RTC Judges also lost the power to make a preliminary examination for the purpose of determining whether probable cause exists to justify the issuance of a warrant of arrest (or search warrant). Such a power –– indeed, it is as much a duty as it is a power –– has been and remains vested in every judge by the provisions in the Bill of Rights in the 1935, the 1973 and the present [1987] Constitutions securing the people against unreasonable searches and seizures, thereby placing it beyond the competence of mere Court Rule or Statute to revoke. The distinction must, therefore, be made clear while an RTC Judge may no longer conduct preliminary investigations to ascertain whether there is sufficient ground for the filing of a criminal complaint or information, he retains the authority, when such a pleading is filed with his court, to determine whether there is probable cause justifying the issuance of a warrant of arrest. It might be added that this distinction accords, rather than conflicts, with the rationale of Salta because both law and rule, in restricting to judges the authority to order arrest, recognize the function to be judicial in nature.

We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecution's job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the Judge. . . .

Finally in the recent case of People v. Delgado, et al. (G.R. Nos. 93419-32, September 18, 1990) there is a statement that the judge may rely on the resolution of COMELEC to file the information by the same token that it may rely on the certification made by the prosecutor who conducted the preliminary investigation in the issuance of the warrant of arrest. We, however, also reiterated that ". . . the court may require that the record of the preliminary investigation be submitted to it to satisfy itself that there is probable cause which will warrant the issuance of a warrant of arrest." (Section 2, Article III, Constitution). Reliance on the COMELEC resolution or the Prosecutor's certification presupposes that the records of either the COMELEC or the Prosecutor have been submitted to the Judge and he relies on the certification or resolution because the records of the investigation sustain the recommendation. The warrant issues not on the strength of the certification standing alone but because of the records which sustain it.

It is obvious from the present petition that notwithstanding the above decisions, some Judges are still bound by the inertia of decisions and practice under the 1935 and 1973 Constitutions and are sadly confused or hesitant. Prosecutors are also interested in a clear cut ruling. We will, therefore, restate the rule in greater detail and hopefully clearer terms.

There is no problem with search warrants which are relatively fewer and far between and where there is no duplication of work between the Judge and the Prosecutor. The problem lies with warrants of arrest especially in metropolitan or highly urban areas. If a Judge has to personally question each complainant and witness or go over the records of the Prosecutor's investigation page by page and word for word before he acts on each of a big pile of applications for arrest warrants on his desk, he or she may have no more time for his or her more important judicial functions.

At the same time, the Judge cannot ignore the clear words of the 1987 Constitution which requires ". . . probable cause to be personally determined by the judge . . .", not by any other officer or person.

If a Judge relies solely on the certification of the Prosecutor as in this case where all the records of the investigation are in Masbate, he or she has not personally determined probable cause. The determination is made by the Provincial Prosecutor. The constitutional requirement has not been satisfied. The Judge commits a grave abuse of discretion.

The records of the preliminary investigation conducted by the Municipal Court of Masbate and reviewed by the respondent Fiscal were still in Masbate when the respondent Fiscal issued the warrants of arrest against the petitioners. There was no basis for the respondent Judge to make his own personal determination regarding the existence of a probable cause for the issuance of a warrant of arrest as mandated by the Constitution. He could not possibly have known what transpired in Masbate as he had nothing but a certification. Significantly, the respondent Judge denied the petitioners' motion for the transmittal of the records on the ground that the mere certification and recommendation of the respondent Fiscal that a probable cause exists is sufficient for him to issue a warrant of arrest.

We reiterate the ruling in Soliven v. Makasiar that the Judge does not have to personally examine the complainant and his witnesses. The Prosecutor can perform the same functions as a commissioner for the taking of the evidence. However, there should be a report and necessary documents supporting the Fiscal's bare certification. All of these should be before the Judge.

The extent of the Judge's personal examination of the report and its annexes depends on the circumstances of each case. We cannot determine beforehand how cursory or exhaustive the Judge's examination should be. The Judge has to exercise sound discretion for, after all, the personal determination is vested in the Judge by the Constitution. It can be as brief or as detailed as the circumstances of each case require. To be sure, the Judge must go beyond the Prosecutor's certification and investigation report whenever necessary. He should call for the complainant and witnesses themselves to answer the court's probing questions when the circumstances of the case so require.

It is worthy to note that petitioners Vicente Lim, Sr. and Susana Lim presented to the respondent Judge documents of recantation of witnesses whose testimonies were used to establish a prima facie case against them. Although, the general rule is that recantations are not given much weight in the determination of a case and in the granting of a new trial (Tan Ang Bun v. Court of Appeals, et al. G.R. No. L-47747, February 15, 1990, People v. Lao Wan Sing, 46 SCRA 298 [1972]) the respondent Judge before issuing his own warrants of arrest should, at the very least, have gone over the records of the preliminary examination conducted earlier in the light of the evidence now presented by the concerned witnesses in view of the "political undertones" prevailing in the cases. Even the Solicitor General recognized the significance of the recantations of some witnesses when he recommends a reinvestigation of the cases, to wit:

It must be pointed out, however, that among the documents attached to this Petition are affidavits of recantation subsequently executed by Jimmy Cabarles and Danilo Lozano and an affidavit executed by one, Camilo Sanano, father of the complainant's witnesses, Renato and Romeo Sanano. It was precisely on the strength of these earlier written statements of these witnesses that the Municipal Trial Court of Masbate found the existence of a prima facie case against petitioners and accordingly recommended the filing of a Criminal Information. Evidently, the same written statements were also the very basis of the "Fiscal's Certification", since the attached affidavits of recantation were not yet then available. Since the credibility of

the prosecution witnesses is now assailed and put in issue and, since the petitioners have not yet been arraigned, it would be to the broader interest of justice and fair play if a reinvestigation of this case be had to secure the petitioners against hasty prosecution and to protect them from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the State from useless and expensive trials (Salonga v. Paño G.R. No. 59524, February 18,1985). (Rollo of G.R. Nos. 94054-56, pp. 200-201)

We reiterate that in making the required personal determination, a Judge is not precluded from relying on the evidence earlier gathered by responsible officers. The extent of the reliance depends on the circumstances of each case and is subject to the Judge's sound discretion. However, the Judge abuses that discretion when having no evidence before him, he issues a warrant of arrest.

Indubitably, the respondent Judge committed a grave error when he relied solely on the Prosecutor's certification and issued the questioned Order dated July 5, 1990 without having before him any other basis for his personal determination of the existence of a probable cause.

WHEREFORE, the instant petitions are hereby GRANTED. The questioned Order of respondent Judge Nemesio S. Felix of Branch 56, Regional Trial Court of Makati dated July 5, 1990 is declared NULL and VOID and SET ASIDE. The Temporary Restraining Orders and Preliminary Mandatory Injunction issued in the instant Petitions are made PERMANENT.

SO ORDERED.

THIRD DIVISION

[G.R. No. 109287. April 18, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTOLIN CUIZON y ORTEGA, STEVE PUA y CLOFAS alias “STEPHEN P0 y UY” or “TOMMY SY” and PAUL LEE y WONG alias “PAUL LEUNG,” accused-appellants.

SYLLABUS1.    REMEDIAL LAW; CRIMINAL PROCEDURE; LAWFUL ARRESTS

WITHOUT WARRANT; REQUIREMENTS; NOT PRESENT IN CASE AT BAR. - Re-assessing the factual backdrop of the case at bench, this Court cannot agree with and accept the conclusion of the trial court that the appellants were caught in flagrante delicto which would justify the search without a warrant. The shaky reasoning of the court a quo gives away the baselessness of its findings and conclusion:  “x x x the search conducted on their bags in the hotel room could still be regarded as valid for being incidental to a lawful arrest. x x x The arrest of accused Pua and Lee without a warrant of arrest was lawful, as they could be considered to have committed the crime of transporting ‘shabu’ in the presence of the arresting officers from the time they received the bags containing the regulated drug in the airport up to the time they brought the bags to the hotel. Or their arrest without a warrant was legal as falling under the situation where an offense had in fact just been committed, and the arresting officers had personal knowledge of facts indicating that the said accused were the ones who committed it. x x x” Scrutinizing the provisions of Sec. 5 of Rule 113 of the Rules of Court on lawful arrests without warrant, we note that par. (c) of said section is obviously inapplicable, the appellants not being escapees from a penal institution at the time of arrest. Par. (a) on the other hand 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, (ii) in the presence of the arresting officer(s). These requirements are not present in the case at bench, for at the time of their arrest, appellants Pua and Lee were merely resting in their hotel room, and appellant Cuizon for his part was in bed resting with his wife and child inside his home. No offense had just been committed, or was being

actually committed or being attempted by any of the accused in the presence of the lawmen.

2.    ID.; ID.; RULE 113, SECTION 5; PARAGRAPH (b) THEREOF; NOT APPLICABLE IN CASE AT BAR. - Par. (b) of Rule 113, Section 5 is likewise inapplicable since its equally exacting requirements have also not been met. The prosecution failed to establish that at the time of the arrest, an offense had in fact just been committed and the arresting officers had personal knowledge of facts indicating that the accused-appellants had committed it. Appellant Cuizon could not, by the mere act of handing over four pieces of luggage to the other two appellants, be considered to have committed the offense of “carrying and transporting” prohibited drugs. Under the circumstances of the case, there was no sufficient probable cause for the arresting officers to believe that the accused were then and there committing a crime. The act per se of handing over the baggage, assuming the prosecution’s version to be true, cannot in any way be considered a criminal act. It was not even an act performed under suspicious circumstances as indeed, it took place in broad daylight, practically at high noon, and out in the open, in full view of the public. Furthermore, it can hardly be considered unusual, in an airport setting, for travellers and/or their welcomers to be passing, handing over and delivering pieces of baggage, especially considering the somewhat obsessive penchant of our fellow countrymen for sending along (“pakikipadala”) things and gifts through friends and relatives. Moreover, one cannot determine from the external appearance of the luggage that they contained “shabu” hidden beneath some secret panel or false bottom. The only reason why such act of parting with luggage took on the color and dimensions of a felonious deed, at least as far as the lawmen were concerned, was the alleged tip that the NBI agents purportedly received that morning, to the effect that appellant Cuizon would be arriving that same day with a shipment of shabu. To quote from another decision of like import, “(A)ll they had was hearsay information (from the telephone caller), and about a crime that had yet to be committed.”

3.    ID.; ID.; ID.; PROBABLE CAUSE; NOT ESTABLISHED IN CASE AT BAR. - We therefore hold that under the circumstances obtaining, the prosecution failed to establish that there was sufficient and reasonable ground for the NBI agents to believe that appellants had committed a crime at the point when the search and arrest of Pua and Lee were made; hence, said search and arrest do not come under the exception in par. (b) of Sec. 5 of Rule 113, and therefore should be deemed illegal.

4.    CRIMINAL LAW; CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY; CONSPIRACY; NOT ESTABLISHED IN CASE AT BAR. - Because of the way the operation actually turned out, there is no sufficient proof of conspiracy between Pua and Lee on the one hand, and Cuizon on the other, inasmuch as there is no clear and convincing evidence that the four (4) bags handed by Cuizon to Pua and Lee at the airport were the very same ones found in the possession of the latter in Room 340 of the Peninsula Hotel. Not one of the NBI agents when testifying could definitely and positively state that the bags seized from Room 340 were the very same ones passed by Cuizon at the airport; at best, they could only say that they “looked like” the ones they saw at the airport. And even assuming them to be the same bags, there remains doubt and uncertainty as to the actual ownership of the said bags at the alleged turnover vis-a-vis the time they were seized by the agents. For these reasons, we cannot sustain the finding of conspiracy as between Cuizon on the one hand and Pua and Lee on the other. Well-settled is the rule that conspiracy must be proved independently and beyond reasonable doubt.

5.    CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNLAWFUL SEARCHES AND SEIZURES; DEEMED WAIVED BY FAILURE TO CHALLENGE ITS VALIDITY; CASE AT BAR. - What has been said for Cuizon cannot, alas, be said for appellant Pua. While the search and arrest carried out on him and Lee may have been illegal for not being incident to a lawful warrantless arrest, the unfortunate fact is that appellantPua failed to challenge the validity of his arrest and search, as well as the admission of the evidence obtained thereby; he did not raise the issue or assign the same as an error before this Court. Accordingly, any possible challenge thereto based on constitutional grounds is deemed waived. This Court has upheld and recognized waivers of constitutional rights, including, particularly, the right against unreasonable searches and seizures, in cases such as People vs. Malasugui (63 Phil. 221 [1936]) and De Garcia vs. Locsin (65 Phil. 689 [1938]).

6.    ID.; ID.; THE JUDICIARY WHOSE MAIN FUNCTION IS THE ADMINISTRATION OF JUSTICE WOULD HAVE NO RIGHT TO EXPECT ORDINARY PEOPLE TO BE LAW ABIDING IF WE DO NOT INSIST ON THE FULL PROTECTION OF THEIR RIGHTS. - It is evident and clear to us that the NBI agents gravely mishandled the drug bust operation and in the process violated the constitutional guarantees against unlawful arrests and illegal searches and seizures. Because of the large haul of illegal drugs that the government officers claimed to have recovered, this Court

agonized over the case before us and struggled to apply the law with an even hand. In the final analysis, we in the administration of justice would have no right to expect ordinary people to be law-abiding if we do not insist on the full protection of their rights.

7.    ID.; ID.; LAW ENFORCERS MUST ACT WITH DELIBERATE CARE AND WITHIN THE PARAMETERS SET BY CONSTITUTION AND THE LAW. – Some lawmen, prosecutors and judges may still tend to gloss over an illegal search and seizures as long as the law enforcers show the alleged evidence of the crime regardless of the methods by which they were obtained. This kind of attitude condones law-breaking in the name of law enforcement. Ironically, it only fosters the more rapid breakdown of our system of justice, and the eventual denigration of society. While this Court appreciates and encourages the efforts of law enforcers to uphold the law and to preserve the peace and security of society, we nevertheless admonish them to act with deliberate care and within the parameters set by the Constitution and the law. Truly, the end never justifies the means.

APPEARANCES OF COUNSELThe Solicitor General for plaintiff-appellee.Public Attorney’s Office and The Law Firm of Ross B. Bautista for Antolin Cuizon.Marcial P. Pe Benito for Steve Pua and Paul Lee.

D E C I S I O NPANGANIBAN, J.:

In deciding the case at bench, the Court reiterates doctrines on illegal searches and seizures, and the requirements for a valid warrantless search incident to a valid warrantless arrest. While the Court appreciates and encourages pro-active law enforcement, it nonetheless upholds the sacredness of constitutional rights and repeats the familiar maxim, “the end never justifies the means.”

This is an appeal from the Decision1 dated January 5, 1993 Criminal Case No. 92-0230) of the Regional Trial Court, Branch 116,2 Pasay City finding appellants guilty of violating Section 15 of R.A. 6425, otherwise known as the Dangerous rugs Act of 1972.

On March 10, 1992, an Information3 was filed against the appellants charging them as follows:

“That on or about February 21, 1992 in Pasay City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, did then and there, willfully, unlawfully and feloniously carry and transport into the country, without lawful authority, 16 kilograms, more or less, of METHAMPHETAMINE HYDROCHLORIDE, also popularly known as ‘SHABU,’ a regulated drug.

CONTRARY TO LAW.”

Upon arraignment, appellant Antolin Cuizon, assisted by counsel de parte, pleaded not guilty. During the arraignment of appellants Paul Lee and Steve Pua, the latter translated the Information into Chinese-Cantonese for the understanding of appellant Lee, who does not speak nor understand English, Pilipino or any other Philippine dialect. Both of them, duly assisted by their counsel, also pleaded not guilty.4 Trial ensued and onJanuary 5, 1993, the court a quo found appellants guilty as charged and rendered the following disposition:5

“WHEREFORE, accused Antolin Cuizon y Ortega, Steve Pua y Clofas alias Stephen Po y Uy or Tommy Sy, and Paul Lee y Wong, alias Paul Leung, are found guilty beyond reasonable doubt of transporting, without legal authority, methamphetamine hydrochloride, or ‘shabu,’ a regulated drug, as charged in the aforequoted Information; and they are each sentenced to suffer the penalty of life imprisonment and to pay a fine of P20,000.00.

“The methamphetamine hydrochloride or ‘shabu’ involved in this case is declared forfeited in favor of the government and is ordered turned over to the Dangerous Drug Board for proper disposal.”

The FactsAccording to the Prosecution

The facts as summarized by the trial court and adopted by the Solicitor General, who added the page references to the transcript of stenographic notes as indicated in brackets, are as follows:6

“In January 1992, the Reaction Group of the National Bureau of Investigation (NBI) gathered an information regarding the drug activities of accused Antolin Cuizon y Ortega and his wife, Susan Cuizon. A surveillance was conducted on them. The

residence of the spouses was traced to Caloocan City (tsn, May 19, 1992, pp. 17-18, 21).

“In the morning of February 21, 1992, the Reaction Group received a report from its informant in Hong Kong that accused Cuizon, together with his wife, was arriving on the same day at the Ninoy Aquino International Airport (NAIA) in PasayCity, Metro Manila, from the British crown colony, carrying with him a big quantity of ‘shabu.’ A team was organized to intercept the suspects. Heading the team was Jose Yap, with Ernesto Diño, Marcelino Amurao, Jose Bataller and Alfredo Jacinto, as members. Some belonged to the Narcotics Division and the others to the Reaction Group of the NBI (tsn, May 19, 1992, pp. 4, 18).

“Arriving at the NAIA shortly before 12:00 noon of February 21, 1992, Diño positioned himself at the Arrival Area, while Yap and the other members of the team posted themselves at the parking area of the airport. At about 12:45 in the afternoon of the same date, accused Cuizon and his wife, who had just returned from Hong Kong, after passing through the Immigration and Customs Areas at the NAIA, proceeded to the Arrival Area of the airport preparatory to their boarding a car. While there, accused Cuizon, together with his wife, handed four (4) travelling bags to accused Steve Pua y Clofas and accused Paul Lee y Wong, who were at the vicinity of the Arrival Area. Accused Pua and Lee loaded the bags in a taxicab which they boarded in leaving the airport. Accused Cuizon and his wife took another vehicle (tsn, May 19, 1992, pp. 4-5, 8-9).

“At this juncture, Diño, who was observing the activities of the accused, radioed the group of Yap at the parking area, describing the vehicle boarded by accused Pua and Lee so that Yap and his companions could apprehend the two. However, the message of Diño was not completely received by his teammates as the radio he was using ran short of battery power (tsn, May 19, 1992, pp. 25-26).

“Immediately after the vehicle boarded by Pua and Lee had left, Diño proceeded to the place where his companions were stationed for the purpose of giving assistance to them, believing that they were already in the process of apprehending accused Pua and Lee. When he realized that the two accused were not apprehended, Diño told the group of Yap to follow him as he was following the vehicle taken by Pua and Lee which, according to an earlier tip he learned, was proceeding to the Manila Peninsula Hotel in Makati, Metro Manila (tsn, May 19, 1992 pp. 25-26; tsn, May 21, 1992 pp. 6, 15).

“Upon arriving at about 2:00 p.m. of the same date of February 21, 1992, in the Manila Peninsula Hotel, in whose premises the taxicab boarded by accused Pua and Lee entered, Diño and the other members of the team coordinated with Cot. Regino

Arellano, Chief Security Officer of the hotel, for the purpose of apprehending the two accused. A verification made by the Chief Security Officer showed that accused Pua and Lee occupied Room 340 of the hotel. The two accused allowed Diño and Yap, together with Col. Arellano, to enter their room. Found inside Room 340 were four (4) travelling bags, which were similar to the ones handed by accused Cuizon to accused Pua and Lee at the Arrival Area of the NAIA. After having introduced themselves as NBI agents, Diño and Yap were permitted by accused Pua and Lee to search their bags in the presence of Col. Arellano. The permission was made in writing.(Exh. I). Three (3) of the four (4) bags each yielded a plastic package containing a considerable quantity of white crystalline substance suspected to be methamphetamine hydrochloride or ‘shabu.’ Each package was sandwiched between two (2) pieces of board which appear to be ‘lawanit’ placed at the bottom of each of the three (3) bags. The suspected ‘shabu’ contained in one bag weighed 2.571 kilos, that found in the other had a weight of 2.768 kilos, and the suspected ‘shabu’ retrieved from the third bag weighed 2.970 kilos. Pua and Lee were then apprehended by Diño and his companions (tsn, May 20, 1992, pp. 9-13; tsn, May 7, 1992, p. 9, Exh. “F-2”, p. 75, Records).

“Immediately thereafter, Diño and the other members of the team proceeded to the house of accused Cuizon in Caloocan City, taking with them accused Pua and Lee and the bags with their contents of suspected dangerous drugs. They reached the place at about 5:50 in the afternoon of the same date of February 21, 1992. Retrieved from accused Cuizon in his residence was another bag also containing a white crystalline substance weighing 2.695 kilos, likewise believed to be methamphetamine hydrochloride or ‘shabu.’ In addition, a .38 Cal. firearm was taken from accused Cuizon (tsn, May 19, 1992, pp. 10-11).

“Pua, Lee, Cuizon and his wife were then brought by the arresting officers to the NBI headquarters at Taft Avenue, Manila, for further investigation. They were subsequently referred to the Prosecution Division of the Department of Justice for inquest. However, only the present three accused were charged in court (tsn, May 19, 1992, pp. 12-13, 16-17).

“In the meantime, at about 5:30 p.m. of the same date of February 21, 1992, Joselito Soriano, roomboy of the Manila Peninsula Hotel, while cleaning Room 340, observed that a portion of the ceiling was misaligned. While fixing it, he discovered in the ceiling a laundry bag containing suspected ‘shabu’ of more than five (5) kilos (Exh. ‘X’, p. 110). Informed of the discovery while they were already in their office in the NBI, Yap and some companions returned to the hotel. The suspected ‘shabu’ was turned over to them (tsn, May 20, 1992, pp. 19-22).

“When examined in the Forensic Chemistry Section of the NBI, the white crystalline substance taken from the three (3) travelling bags found in the room of accused Pua and Lee in the Manila Peninsula Hotel, the white crystalline substance retrieved from the bag confiscated from accused Cuizon in his house in Caloocan City, and the white crystalline substance hidden in the ceiling of Room 340 of the hotel were confirmed to be methamphetamine hydrochloride or ‘shabu,’ a regulated drug. (Board Regulation No. 6, dated December 11, 1972, of the Dangerous Drugs Board) (tsn, May 7, 1992, p. 12).”

The Defense’s Version(s)

Appellant Pua, on his part, interposed the defense of alibi. On direct examination, he testified that at the time of the alleged commission of the offense, he and his co-appellant Lee were in their room at the Manila Peninsula Hotel.7 His version of what happened on February 21, 1992 can be summarized as follows:

At around 9:30 in the morning, he accompanied appellant Paul Lee to check-in at the Manila Peninsula Hotel for and in behalf of the latter’s personal friend named Leong Chong Chong or Paul Leung, who was expected to arrive that evening because of a delayed flight. Appellant Pua was engaged by appellant Lee to act as interpreter as Lee does not know how to speak English and the local language.8

While in Room 340, past 1:00 in the afternoon, they received a call from the lobby informing them of the arrival of Paul Leung’s luggage. At Pua’s instructions, the said luggage were brought to the room by a bellboy. Thereafter, two persons knocked on their door, accompanied by a “tomboy” and a thin man with curly hair. The two men identified themselves as NBI agents and asked appellant Pua to let them in. He declined since he did not know who they were. However, when Col. Arellano, the Chief Security Officer of the hotel, arrived and identified the two NBI agents, he and Lee relented and permitted them to enter. Thereafter, he and Lee were told by the agents to sign a piece of paper. Made to understand that they were merely giving their consent for the agents to enter their room, Pua and Lee signed the same. Whereupon, the agents told them that they will open Paul Leung’s bags. Again appellant Pua refused, saying that the bags did not belong to them. Just the same, the agents, without appellants Pua and Lee’s consent, opened the bags and found the shabu. Pua and Lee were then apprehended and brought to the NBI headquarters.9

Appellant Cuizon, on the other hand, flatly rejected the prosecution’s version of the incident. While admitting that on February 21, 1992, he and his wife Susan did arrive from Hong Kong with several pieces of luggage, he denied that he met Pua and Lee at the arrival area of the airport, much less passed to them the four pieces of luggage. According to him, only his two-year old son, accompanied by his cousin, Ronald Allan Ong, met them outside the airport. Ong fetched them from the airport and brought them to their home in Caloocan City. They arrived at their house around 3:00 in the afternoon.10

About two hours later, while he was resting together with his wife and son on his bed, two NBI agents suddenly barged in and poked a gun at him. They manhandled him in front of his wife and son. His hands were tied with a necktie and he was forcibly brought out of their house while the NBI agents ransacked the place without any warrant. He, his wife Susan, and his cousin Ronald Allan Ong, were afterwards brought to the NBI Headquarters in Manila and there the NBI agents continued mauling him.11

Appellant Cuizon’s wife Susan, his cousin Ronald Allan Ong, and his nephew Nestor Dalde, testified in his favor basically reiterating or confirming his testimony.12

Unfortunately, appellant Paul Lee, who does not speak or understand a word of English or Pilipino and only knows Chinese-Cantonese, was not able to take the witness stand for lack of an interpreter who would translate his testimony to English. In the hearing set on October 28, 1992, the last trial date allotted to the defense for the reception of Lee’s testimony, his counsel, although notified of the proceedings, did not appear. Thus, the trial court deemed him and Pua to have waived their right to present additional evidence,13 and the case was considered submitted for decision after the filing of memoranda. The counsel for Pua and Lee did not ask for the reconsideration of such ruling; neither did he submit any memorandum. Only accused Cuizon, who was assisted by another counsel, was able to submit his memorandum.

The Issues

In their brief, appellants Pua and Lee made the following assignments of errors:14

“I. The trial court erred in finding conspiracy among the accused.

“II. The trial court erred in giving credence to the testimonies of prosecution witnesses Marcelino Amurao, Jose Yap and Ernesto Diño despite contradictions made on material points.

“III. The trial court erred in not giving accused Paul Lee the opportunity to present his evidence in his defense in violation of his constitutional right to due process.”

Appellant Cuizon, in a separate brief, essentially reiterates the first two assignments of errors above-quoted, and in addition challenges the legality and validity of his warrantless arrest and the search and seizure incidental thereto.15

As this Court sees it, the resolution of this case hinges on the pivotal question of the legality of the arrest and search of herein appellants effected by the NBI operatives. Put differently, were the warrantless arrests and the warrantless searches conducted by the NBI legal and constitutional?

The answer to this threshold question determines whether the judgment of the court a quo will stand or fall. Consequently, there is a need to resolve first this issue before endeavoring to consider the other issues raised by appellants.

A necessary side issue to be considered is, assuming the searches and arrests to have been illegal, whether failure by appellants Pua and Lee to explicitly assign the same as errors before this Court amounted to a waiver of their constitutional rights against such illegal searches and arrests.

The Court’s Ruling

General Rule on WarrantlessArrests, Searches, & Seizures

Well entrenched in this country is the rule that no arrest, search and seizure can be made without a valid warrant issued by a competent judicial authority. So sacred is this right that no less than the fundamental law of the land16 ordains it:

“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.”

 It further decrees that any evidence obtained in violation of said right shall be inadmissible for any purpose in any proceeding. 17

However, the right against warrantless arrest and search and seizure is not absolute. Thus, under Section 5 of Rule 113 of the Revised Rules of Court, an arrest without a warrant may be lawfully made by a peace officer or a private 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.”

On the occasion of any of the aforementioned instances of legitimate arrest without warrant, the person arrested may be subjected to a search of his body and of his personal effects or belongings, “for dangerous weapons or anything which may be used as proof of the commission of an offense,” likewise without need of a search warrant.18

However, where a person is searched without a warrant, and under circumstances other than those justifying a warrantless arrest, as discussed above, upon a mere suspicion that he has embarked on some criminal activity, and/or for the purpose of discovering if indeed a crime has been committed by him, then the search made of such person as well as his arrest are deemed illegal.19 Consequently, any evidence which may have been obtained during such search, even if tending to confirm or actually confirming such initial suspicion, is absolutely inadmissible for any purpose and in any proceeding,20 the same being “the fruit of the poisonous tree.”21 Emphasis is to be laid on the fact that the law requires that the search be incident to a lawful arrest, in order that the search itself may likewise be considered legal. Therefore, it is beyond cavil that a lawful arrest must precede the search of a person and his belongings. Were a search first undertaken, then an arrest

effected based on evidence produced by the search, both such search and arrest would be unlawful, for being contrary to law.

The Instant Case Does Not Fall UnderThe Exceptions for Warrantless Searches, etc.

Re-assessing the factual backdrop of the case at bench, this Court cannot agree with and accept the conclusion of the trial court that the appellants were caught in flagrante delicto which would justify the search without a warrant. The shaky reasoning of the court a quo gives away the baselessness of its findings and conclusion:

“x x x the search conducted on their bags in the hotel room could still be regarded as valid for being incidental to a lawful arrest. x x x The arrest of accused Pua and Lee without a warrant of arrest was lawful, as they could be considered to have committed the crime of transporting ‘shabu’ in the presence of the arresting officers from the time they received the bags containing the regulated drug in the airport up to the time they brought the bags to the hotel. Or their arrest without a warrant was legal as falling under the situation where an offense had in fact just been committed, and the arresting officers had personal knowledge of facts indicating that the said accused were the ones who committed it. x x x”22

Scrutinizing the provisions of Sec. 5 of Rule 113 of the Rules of Court on lawful arrests without warrant, we note that par. (c) of said section is obviously inapplicable, the appellants not being escapees from a penal institution at the time of arrest. Par. (a) on the other hand requires that the person be arrested (i) after he has committed or while he is actually committing or is at least attempting to commit an offense, (ii) in the presence of the arresting officer(s). These requirements are not present in the case at bench, for at the time of their arrest, appellants Pua and Lee were merely resting in their hotel room, and appellant Cuizon for his part was in bed resting with his wife and child inside his home. No offense had just been committed, or was being actually committed or being attempted by any of the accused in the presence of the lawmen.23

Par. (b) of the same provision is likewise inapplicable since its equally exacting requirements have also not been met. The prosecution failed to establish that at the time of the arrest, an offense had in fact just been committed and the arresting officers had personal knowledge of facts indicating that the accused-appellants had committed it. Appellant Cuizon could not, by the mere act of handing over four pieces of luggage to the other two appellants, be considered to have committed the offense of “carrying and transporting” prohibited drugs. Under the circumstances of the case, there

was no sufficient probable cause for the arresting officers to believe that the accused were then and there committing a crime. The act per se of handing over the baggage, assuming the prosecution’s version to be true, cannot in any way be considered a criminal act. It was not even an act performed under suspicious circumstances as indeed, it took place in broad daylight, practically at high noon, and out in the open, in full view of the public.24 Furthermore, it can hardly be considered unusual, in an airport setting, for travellers and/or their welcomers to be passing, handing over and delivering pieces of baggage, especially considering the somewhat obsessive penchant of our fellow countrymen for sending along (“pakikipadala”) things and gifts through friends and relatives. Moreover, one cannot determine from the external appearance of the luggage that they contained “shabu” hidden beneath some secret panel or false bottom. The only reason why such act of parting with luggage took on the color and dimensions of a felonious deed, at least as far as the lawmen were concerned, was the alleged tip that the NBI agents purportedly received that morning, to the effect that appellant Cuizon would be arriving that same day with a shipment of shabu. To quote from another decision of like import, “(A)ll they had was hearsay information (from the telephone caller), and about a crime that had yet to be committed.”25

In the leading case of People vs. Burgos,26 this Court laid down clear guidelines, as follows:

“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).”

The same decision is highly instructive as it goes on to state:

“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 (for belief) 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 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. x x x”

The foregoing doctrine was affirmed in the case of Alih vs. Castro,27 where this Court ruled that “x x x 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.”

In the case at bench, not only did the NBI agents rely merely on hearsay information (“tips”), but they were completely uncertain that anything was really “going down” that day. That much is undisputed, from a reading of the testimony of Agent Diño:

 “Q -     Now, but you were informed by the personnel of the airport that the spouses Cuizon were going to bring in or transport into the country shabu on February 21, 1992?

A -     Yes, sir.

Q -     Now, you were not sure or your group was not sure that they indeed would bring in shabu, is it not? That was only the information relayed to your group?

A -     Yes, sir.

       xxx                                    xxx                                    xxxQ -     But then you were jumping ahead. You were not sure is it not that they were

bringing in shabu?

A -     Yes, sir.” (TSN, May 19, 1992, pp. 37-38.)

In his testimony, NBI Investigator Jose Justo Yap, who was with Agent Diño during the operation, likewise admitted in substantially the same tenor their uncertainty regarding the commission of the offense (cf. TSN, May 20, 1992, pp. 29 & 34).

We therefore hold that under the circumstances obtaining, the prosecution failed to establish that there was sufficient and reasonable ground for the NBI agents to believe that appellants had committed a crime at the point when the search and arrest of Pua and Lee were made; hence, said search and arrest do not come under the exception in par. (b) of Sec. 5 of Rule 113, and therefore should be deemed illegal. We might add that the search conducted on Pua and Lee was not incident to a lawful warrantless arrest, having

preceded the same and produced the justification therefor. On the other hand, the search on Cuizon’ s residence, without the benefit of a search warrant, was clearly illegal and the ‘shabu’ seized thereat cannot but be considered inadmissible in evidence. More on these points later.

Comparison Between The Present Caseand Earlier Decisions of This Court

For clarity’s sake, it is imperative to compare the foregoing holding with previous decisions by this Court in various drug cases, in which apparently different conclusions were reached, in order to distinguish them from the instant case and avoid any potential misunderstanding of the foregoing holding as well as the constitutional and legal principles on which it is based.

1. In People vs. Claudio,28 the accused, a passenger on a bus bound for Baguio City, was arrested by a policeman on the same bus because of the distinctive odor of marijuana emanating from the plastic bag she was carrying. The Court held the warrantless arrest under the circumstances to be lawful, the search justified and the evidence thus discovered admissible in evidence.

2. In People vs. Tangliben,29 the accused, carrying a travelling bag at a bus terminal, was noticed by lawmen to be acting suspiciously, and was also positively fingered by an informer as carrying marijuana, and so he was accosted by policemen who happened to be on a surveillance mission; the lawmen asked him to open the bag, in which was found a package of marijuana leaves. It was held that there was a valid warrantless arrest and search incident thereto. The Court in effect considered the evidence on hand sufficient to have enabled the law enforcers to secure a search warrant had there been time, but as the case “presented urgency,” and there was actually no time to obtain a warrant since the accused was about to board a bus, and inasmuch as an informer had given information “on the spot” that the accused was carrying marijuana, the search of his person and effects was thus considered valid.

3. In Posadas vs. Court of Appeals,30 the accused was seen acting suspiciously, and when accosted by two members of the Davao INP who identified themselves as lawmen, he suddenly fled, but was pursued, subdued and placed in custody. The buri bag he was carrying yielded an unlicensed revolver, live ammunition and a tear gas grenade. This Court upheld his conviction for illegal possession of firearms, holding that there was under the circumstances sufficient probable cause for a warrantless search.

4. In People vs. Moises Maspil, Jr., et al.,31 agents of the Narcotics Command set up a checkpoint on a highway in Atok, Benguet, to screen vehicular traffic on the way to Baguio City due to confidential reports from informers that Maspil and a certain Bagking would be transporting a large quantity of marijuana. At about 2 a.m. of November 1, 1986, the two suspects, riding a jeepney, pulled up to the checkpoint and were made to stop. The officers noticed that the vehicle was loaded with some sacks and tin cans, which, when opened, were seen to contain marijuana leaves. The Court upheld the search thus conducted as being incidental to a valid warrantless arrest.

5. In People vs. Lo Ho Wing, et al.,32  the Court ruled that the search of the appellants’ moving vehicles and the seizure of ‘shabu’ therefrom was legal, in view of the intelligence information, including notably, clandestine reports by a planted deep penetration agent or spy who was even participating in the drug smuggling activities of the syndicate, to the effect that appellants were bringing in prohibited drugs into the country. The Court also held that it is not practicable to secure a search warrant in cases of smuggling with the use of a moving vehicle to transport contraband, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.

6. In People vs. Malmstedt,33 NARCOM agents stationed at Camp Dangwa, Mountain Province, set up a temporary checkpoint to check vehicles coming from the Cordillera Region, due to persistent reports that vehicles from Sagada were transporting marijuana and other drugs, and because of particular information to the effect that a Caucasian would be travelling from Sagada that day with prohibited drugs. The bus in which accused was riding was stopped at the checkpoint. While conducting an inspection, one of the NARCOM men noticed that accused, the only foreigner on board, had a bulge at the waist area. Thinking it might be a gun, the officer sought accused’s passport or other identification papers. When the latter failed to comply, the lawman directed him to bring out whatever it was that was bulging at his waist. It was a pouch bag which, when opened by the accused, was found to contain packages of hashish, a derivative of marijuana. Invited for questioning, the accused disembarked from the bus and brought along with him two pieces of luggage; found inside were two teddy bears stuffed with more hashish. The Court held that there was sufficient probable cause in the premises for the lawmen to believe that the accused was then and there committing a crime and/or trying to hide something illegal from the authorities. Said probable cause arose not only from the persistent reports of the transport of prohibited drugs from Sagada, and the “tip” received by the NARCOM that same day that a Caucasian coming from Sagada would be bringing prohibited drugs, but

also from the failure of the accused to present his passport or other identification papers when confronted by the lawmen, which only triggered suspicion on the part of the law enforcers that accused was trying to hide his identity, it being the normal thing expected of an innocent man with nothing to hide, that he readily present identification papers when asked to do so. The warrantless arrest and search were thus justified.

In all the cases discussed hereinabove, there were facts which were found by the Court to provide probable cause justifying warrantless arrests and searches, i.e., distinct odor of marijuana, reports about drug transporting or positive identification by informers, suspicious behaviour, attempt to flee, failure to produce identification papers, and so on. Too, urgency attended the arrests and searches because each of the above-mentioned cases involved the use of motor vehicles and the great likelihood that the accused would get away long before a warrant can be procured. And, lest it be overlooked, unlike in the case before us now, the law enforcers in the aforementioned cases acted immediately on the information received, suspicions raised, and probable causes established, and effected the arrests and searches without any delay.

Unexplained Matters in the Instant Case

In the case before us, the NBI agents testified that they purportedly decided against arresting the accused-appellants inside the airport as they allegedly wanted to discover the identities of the airport immigration, security or customs personnel who might be protecting the accused or otherwise involved in the drug smuggling activities, and also in order to avoid the possibility of an armed encounter with such protectors, which might result in injuries to innocent bystanders. These excuses are simply unacceptable. They are obviously after-thoughts concocted to justify their rank failure to effect the arrest within constitutional limits. Indeed, the NBI men failed to explain how come they did not apprehend the appellants at the moment Cuizon handed over the baggage to Pua and Lee, or even afterwards, in relative safety. Such arrest would have been consistent with the settled constitutional, legal and jurisprudential precedents earlier cited.

The spouses Cuizon had already passed through the airport security checks allegedly with their contraband cargo undetected in their luggage. Apparently, the NBI agents did not see (as indeed they did not testify that they saw) anyone from the airport immigration, security or customs who could have escorted the spouses Cuizon, and therefore, there was no danger of any “live

ammo encounter” with such group(s). The alleged drug couriers had already made their way outside the NAIA, had allegedly made contact with the accused Pua and Lee, and were in the very act of handing over the luggage to the latter. Why the NBI men did not move in and pounce on them at that very instant has not been satisfactorily explained. Instead, one of the agents, Diño, merely watched as Pua and Lee loaded the luggage into a cab and took off for Makati. Furthermore, it taxes the imagination too much to think that at the most critical and climactic moment, when agent Diño radioed his companions for help to close in on the suspects, the most amazing and stupendous thing actually happened: Murphy’s Law kicked in - whatever could go wrong, did, and at the worst possible time - the batteries in Agent Diño’s hand-held radio supposedly went dead and his message was not transmitted. Thus the departing Pua and Lee proceeded merrily and unimpeded to the Peninsula Hotel, while the spouses Cuizon simultaneously sped off to their residence in Caloocan City, leaving the lawmen empty-handed and scampering madly to catch up. Such absolutely astounding and incredible happenstance might find a place in a fourth-rate movie script, but expecting the courts to swallow it- hook, line and sinker - is infinite naivete, if not downright malevolence.

Even granting arguendo that the radio really went dead, nevertheless, the agents were not thereby rendered helpless or without recourse. The NBI agents, numbering five in all, not counting their so-called informant, claimed to have piled into three cars (TSN, May 19, 1992) and tailed the suspects Pua and Lee into Makati, keeping a safe two-car distance behind (TSN, May 20, 1992). The lawmen and the prosecutors failed to explain why the agents did not intercept the vehicle in which Pua and Lee were riding, along the way, pull them over, arrest them and search the luggage. And since the agents were in three (3) cars, they also could have easily arranged to have agents in one vehicle follow, intercept and apprehend the Cuizons while the others went after Pua and Lee. All or any of these possible moves are mere ordinary, common-sense steps, not requiring a great deal of intelligence. The NBI men who testified claimed to have conducted or participated in previous drug busts or similar operations and therefore must have been familiar with contingency planning, or at least should have known what to do in this situation where their alleged original plan fell through. At any rate, what the lawmen opted to do, i.e., allow Pua and Lee to freely leave the airport, allegedly bringing the drug cache to the hotel, and Cuizon to leave unimpededly the airport and reach his residence with one of the luggage, increased significantly the risk of the suspects (and/or the drugs) slipping through the lawmen’s fingers, and puts into question the regularity of performance of their official functions. The agents’ alleged actions in this case compare poorly with the forthright and

decisive steps taken by lawmen in the cases earlier cited where this Court held the arrests and seizures to be valid.

Had the arrests and searches been made in transitu, i.e., had the agents intercepted and collared the suspects on the way to Makati and Caloocan, or better yet, at the very moment of the hand-over, then there would not have been any question at all as to the legality of their arrest and search, as they would presumably have been caught red-handed with the evidence, and consequently for that reason and by the very nature and manner of commission of the offense charged, there would have been no doubt also as to the existence of conspiracy among the appellant to transport the drugs. However, because of the way the operation actually turned out, there is no sufficient proof of conspiracy between Pua and Lee on the one hand, and Cuizon on the other, inasmuch as there is no clear and convincing evidence that the four (4) bags handed by Cuizon to Pua and Lee at the airport were the very same ones found in the possession of the latter in Room 340 of the Peninsula Hotel. Not one of the NBI agents when testifying could definitely and positively state that the bags seized from Room 340 were the very same ones passed by Cuizon at the airport; at best, they could only say that they “looked like” the ones they saw at the airport. And even assuming them to be the same bags, there remains doubt and uncertainty as to the actual ownership of the said bags as at the alleged turnover vis-a-vis the time they were seized by the agents. For these reasons, we cannot sustain the finding of conspiracy as between Cuizon on the one hand and Pua and Lee on the other. Well-settled is the rule that conspiracy must be proved independently and beyond reasonable doubt.34

Additionally, in light of the foregoing discussion, we find it extremely difficult to subscribe to the trial court’s finding as to the existence and sufficiency of probable cause in this case, one major component of which would have been the alleged information or “tip” purportedly received by the agents as to the expected arrival of the spouses Cuizon that fateful day with a large cache of ‘shabu.’ The question that defies resolution in our minds is why, if indeed the information or “tip” was genuine and from a highly reliable source as claimed by the government agents, did they not act on it? Throw in the alleged month-long surveillance supposedly conducted by some of the NBI people on the Cuizon couple, and the mystery only deepens. Even with the so-called tip and the results of surveillance, the government officers were still seemingly hesitant, reluctant, uncertain, or perhaps afraid, to arrest and search the accused appellants, so much so that the NBI agents who went after Pua and Lee at the Peninsula Hotel, instead of outrightly cuffing and searching them, as they were supposed to, opted instead to play it safe and

meekly beseeched the two to sign a written consent for the agents to search their personal effects! Indeed, this is one for the books. If this is how confident the agents were about their “hot tips,” reliable informers and undercover surveillance, then we cannot be blamed for failing to appreciate the existence/sufficiency of probable cause to justify a warrantless arrest and search in this case. There is a whole lot more that can be said on this score, but we shall leave it at that for now. We shall now dispose of the appeals of the accused-appellants individually.

Re:      Appellant Antolin Cuizon

The search of the house of appellant Cuizon, having been conducted without any warrant, and not on the occasion or as an incident of a valid warrantless arrest, was indubitably illegal, and the shabu seized thereat could not be admissible in evidence. That is why even the trial judge did not make an effort to hold him liable under such seizure. He lamely argued: “(A)t any rate, accused Cuizon is not held criminally liable in this case in connection with the bag containing ‘shabu’ confiscated from his residence. His responsibility is based on the bags containing ‘shabu’ which he handed to Pua and Lee at the NAIA. Consequently, even if the bag and its contents of ‘shabu’ taken from his house were not admitted in evidence, the remaining proofs of the prosecution would still be sufficient to establish the charge against him.” However, contrary to the trial judge’s conclusion, we hold that insofar as Cuizon is concerned, all the evidence seized are considered fruit of the poisonous tree and are inadmissible as against him, and thus, he should be acquitted, since, as shown hereinabove, (i) the warrantless search conducted on Pua and Lee was clearly illegal per se, not being incident to a valid warrantless arrest either; (ii) and even if the search on Pua and Lee were not illegal, conspiracy as between Cuizon on the one hand and appellants Pua and Lee on the other had not been established by sufficient proof beyond reasonable doubt; and (iii) appellant Cuizon had timely raised before this Court the issue of the illegality of his own arrest and the search and seizure conducted at his residence, and questioned the admission of the seized shabu in evidence.

Re:      Appellant Steve Pua @ “Tommy Sy”

What has been said for Cuizon cannot, alas, be said for appellant Pua. While the search and arrest carried out on him and Lee may have been illegal

for not being incident to a lawful warrantless arrest, the unfortunate fact is that appellant Pua failed to challenge the validity of his arrest and search as well as the admission of the evidence obtained thereby; he did not raise the issue or assign the same as an error before this Court. Accordingly, any possible challenge thereto based on constitutional grounds is deemed waived. This Court has upheld and recognized waivers of constitutional rights, including, particularly, the right against unreasonable searches and seizures, in cases such as People vs. Malasugui35 and De Garcia vs. Locsin.36

Additionally, the prosecution had argued and the trial court agreed that by virtue of the handwritten consent (Exhibit “I’) secured by the arresting officers from appellants Pua and Lee, the latter freely gave their consent to the search of their baggage, and thus, the drugs discovered as a result of the consented search is admissible in evidence. The said written permission is in English, and states plainly that they (Pua and Lee) freely consent to the search of their luggage to be conducted by NBI agents to determine if Pua and Lee are carrying shabu. It appears that appellant Pua understands both English and Tagalog; he is born of a Filipino mother, had resided in Vito Cruz, Manila, and gave his occupation as that of salesman. He admitted that he was asked to sign the written consent, and that he did in fact sign it (TSN, May 28, 1992, pp. 33-34). His barefaced claim made during his direct and cross-examinations to the effect that he did not really read the consent but signed it right away, and that by signing it he only meant to give permission for the NBI agents to enter the room (and not to search) is hardly worthy of belief, considering that prior to the search, he seemed to have been extra careful about who to let into the hotel room.

Thus, the full weight of the prosecution’s testimonial evidence plus the large amount of prohibited drugs found, must be given full force vis-a-vis Pua’s claim of innocent presence in the hotel room, which is weak and not worthy of credence.

Re:      Appellant Paul Lee @ “Paul Leung”

Appellant Lee’s situation is different from that of Pua. We agree with the Solicitor General when he noted that the trial judge did not exert sufficient effort to make available compulsory process and to see to it that accused appellant Lee was given his day in court. It is clear that appellant Lee was effectively denied his right to counsel, for although he was provided with one, he could not understand and communicate with him concerning his defense such that, among other things, no memorandum was filed on his behalf;

further, he was denied his right to have compulsory process to guarantee the availability of witnesses and the production of evidence on his behalf, including the services of a qualified and competent interpreter to enable him to present his testimony.37 In sum, he was denied due process. For this reason, we hold that the case as against Lee must be remanded to the court of origin for a re-trial.

Epilogue

It is evident and clear to us that the NBI agents gravely mishandled the drug bust operation and in the process violated the constitutional guarantees against unlawful arrests and illegal searches and seizures. Because of the large haul of illegal drugs that the government officers claimed to have recovered, this Court agonized over the case before us and struggled to apply the law with an even hand. In the final analysis, we in the administration of justice would have no right to expect ordinary people to be law-abiding if we do not insist on the full protection of their rights. Some lawmen, prosecutors and judges may still tend to gloss over an illegal search and seizure as long as the law enforcers show the alleged evidence of the crime regardless of the methods by which they were obtained. This kind of attitude condones law-breaking in the name of law enforcement. Ironically, it only fosters the more rapid breakdown of our system of justice, and the eventual denigration of society.  While this Court appreciates and encourages the efforts of law enforcers to uphold the law and to preserve the peace and security of society, we nevertheless admonish them to act with deliberate care and within the parameters set by the Constitution and the law. Truly, the end never justifies the means.

WHEREFORE, in view of the foregoing considerations, accused-appellant Antolin Cuizon y Ortega is hereby ACQUITTED on constitutional grounds. His immediate release is ordered unless he is detained for other valid causes. Accused-appellant Steve Pua y Clofas is hereby found GUILTY of the crime of Illegal Transport of Regulated Drugs, penalized under Section 15, R.A. No. 6425, as amended, and is hereby sentenced to suffer the penalty of reclusion perpetua; the Decision appealed from, as herein modified, is hereby affirmed as to appellant Pua. Finally, the case as to appellant Lee is hereby ordered REMANDED to the trial court in order that said accused may be given his day in court. The Decision appealed from is also AFFIRMED with respect to the disposition of the prohibited drugs involved in the case.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. 95847-48. March 10, 1993.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GABRIEL GERENTE y BULLO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT; LAWFUL WHEN ARRESTING OFFICER HAS PERSONAL KNOWLEDGE THAT THE PERSON TO BE ARRESTED HAS COMMITTED THE CRIME; CASE AT BAR. — The policemen arrested Gerente only some three (3) hours after Gerente and his companions had killed Blace. They saw Blace dead in the hospital and when they inspected the scene of the crime, they found the instruments of death: a piece of wood and a concrete hollow block which the killers had used to bludgeon him to death. The eye-witness, Edna Edwina Reyes, reported the happening to the policemen and pinpointed her neighbor, Gerente, as one of the killers. Under those circumstances, since the policemen had personal knowledge of the violent death of Blace and of facts indicating that Gerente and two others had killed him, they could lawfully arrest Gerente without a warrant. If they had postponed his arrest until they could obtain a warrant, he would have fled the law as his two companions did.

2. ID.; ID.; SEARCH AND SEIZURE; VALID EVEN WITHOUT A WARRANT WHEN MADE AS AN INCIDENT TO LAWFUL ARREST; RATIONALE. — The search conducted on Gerente's person was likewise lawful because it was made as an incident to a valid arrest. This is in accordance with Section 12, Rule 126 of the Revised Rules of Court which provides: "Section 12. Search incident to lawful arrest. — A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant." The frisk and search of appellant's person upon his arrest was a permissible precautionary measure of arresting officers to protect themselves, for the person who is about to be arrested may be armed and might attack them unless he is first disarmed. In Adams vs. Williams, 47 U.S. 143, cited in Justice Isagani A. Cruz's Constitutional Law, 1991 Edition, p. 150, it was ruled that "the individual being arrested may be frisked for concealed weapons that may be used against the arresting officer and all unlawful articles found his person, or within his immediate control may be seized."

3. CRIMINAL LAW; CONSPIRACY; LIABILITY OF CONSPIRATORS; RULE; CASE AT BAR. — There is no merit in appellant's allegation that the trial court erred in convicting him of having conspired and cooperated with Fredo and Totoy Echigoren to kill Blace despite the testimony of Dr. Valentin Bernales that the fracture on the back of the victim's skull could have been inflicted by one

person only. what Dr. Bernales stated was a mere possibility that only one person dropped the concrete hollow block on the head of the victim, smashing it. That circumstance, even if true, does not absolve the other two co-conspirators in the murder of Blace for when there is a conspiracy to commit a crime, the act of one conspirator is the act of all. The conspiracy was proven by the eyewitness-testimony of Edna Edwina Reyes, that she overheard the appellant and his companions conspire to kill Blace, that acting in concert, they attacked their victim with a piece of wood and a hollow block and caused his death. "When there is no evidence indicating that the principal witness for the prosecution was moved by improper motive, the presumption is that he was not so moved and his testimony is entitled to full faith and credit" (People vs. Belibet, 199 SCRA 587, 588). Hence, the trial court did not err in giving full credit to Edna Reyes' testimony.

4. ID.; CIVIL INDEMNITY FOR DEATH; INCREASED TO P50,000.00. — The Solicitor General correctly pointed out in the appellee's brief that the award of P30,000.00 as civil indemnity for the death of Clarito Blace should be increased to P50,000.00 in accordance with our ruling in People vs. Sison, 189 SCRA 643.

D E C I S I O N

GRIÑO-AQUINO, J p:

This is an appeal from the decision of the Regional Trial Court of Valenzuela, Metro Manila, Branch 172, which found the appellant guilty of Violation of Section 8 of Republic Act 6425 (Dangerous Drugs Act of 1972) and sentenced him to suffer the penalty of imprisonment for a term of twelve (12) years and one (1) day, as minimum, to twenty (20) years, as maximum; and also found him guilty of Murder for which crime he was sentenced to suffer the penalty of reclusion perpetua. The dispositive portion of the appealed decision reads:

"WHEREFORE, in view of the foregoing the Court finds the accused Gabriel Gerente in Criminal Case No. 10255-V-90 guilty beyond reasonable doubt of Violation of Section 8 of R.A. 6425 and hereby sentences him to suffer the penalty of imprisonment of twelve years and one day as minimum to twenty years as maximum, and a fine of twelve thousand, without subsidiary imprisonment in case of insolvency, and to pay the costs.

"In Criminal Case No. 10256-V-90, the Court finds the accused Gabriel Gerente guilty beyond reasonable doubt of the crime of Murder, and there by (sic) no aggravating circumstances nor mitigating circumstances, is hereby sentenced to suffer the penalty of reclusion perpetua; to indemnify the heirs of the victim in the sum of P30,000.00, and in the amount of P17,609.00 as funeral expenses, without subsidiary imprisonment in case of insolvency, and to pay the costs. The accused Gabriel Gerente shall be credited with the full term of his preventive imprisonment." (p. 25, Rollo.)

Appellant Gabriel Gerente y Bullo was charged with Violation of Section 8, Art. II of R.A. 6425, which was docketed as Criminal Case No. 10255-V-90 of the Regional Trial Court of Valenzuela, Metro Manila. The Information reads:

"That on or about the 30th day of April, 1990, in the municipality of Valenzuela, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without justification, did then and there wilfully, unlawfully and feloniously have in his possession and control dried flowering tops wrapped in foil with markings and place in a transparent plastic bag which are considered prohibited drugs." (p. 2, Rollo.)

The same accused, together with Totoy and Fredo Echigoren who are both at large, was charged with Murder in Criminal Case No. 10256-V-90 in an information of the same date and signed by the same Assistant Provincial Prosecutor, as follows:

"That on or about the 30th day of April, 1990, in the municipality of Valenzuela, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused together with two (2) others who are still at large and against whom the preliminary investigation has not yet been terminated by the Office of the Provincial Prosecutor of Bulacan, conspiring, confederating together and mutually helping one another, armed with a piece of wood and hallow (sic) block and with intent to kill one Clarito B. Blace, did then and there wilfully, unlawfully and feloniously, with evident premeditation and treachery, attack, assault and hit with the said piece of wood and hollow block the said Clarito B. Blace, hitting the latter on the different parts of his body, thereby inflicting serious physical injuries which directly caused the death of the said victim." (p. 3, Rollo.)

Edna Edwina Reyes testified that at about 7:00 a.m. of April 30, 1990, appellant Gabriel Gerente, together with Fredo Echigoren and Totoy Echigoren, started drinking liquor and smoking marijuana in the house of the appellant which is about six (6) meters away from the house of the prosecution witness who was in her house on that day. She overheard the three men talking about their intention to kill Clarito Blace. She testified that she heard Fredo Echigoren saying, "Gabriel, papatayin natin si Clarito Blace," and Totoy Echigoren allegedly seconded Fredo's suggestion saying: "Papatayin natin 'yan mamaya." Appellant allegedly agreed: "Sigue, papatayin natin mamaya." (pp. 3-4, tsn, August 24, 1990.)

Fredo and Totoy Echigoren and Gerente carried out their plan to kill Clarito Blace at about 2:00 p.m. of the same day. The prosecution witness, Edna Edwina Reyes, testified that she witnessed the killing. Fredo Echigoren struck the first blow against Clarito Blace, followed by Totoy Echigoren and Gabriel Gerente who hit him twice with a piece of wood in the head and when he fell, Totoy Echigoren dropped a hollow block on the victim's head. Thereafter, the three men dragged Blace to a place behind the house of Gerente.

At about 4:00 p.m. of the same day, Patrolman Jaime Urrutia of the Valenzuela Police Station received a report from the Palo Police Detachment about a mauling incident. He went to the Valenzuela District Hospital where the victim was brought. He was informed by the hospital officials that the victim died on arrival. The cause of death was massive fracture of the skull caused by a hard and heavy object. Right away, Patrolman Urrutia, together with Police Corporal Romeo Lima and Patrolman Alex Umali, proceeded to Paseo de Blas where the mauling incident took place. There they found a piece of wood with blood stains, a hollow block and two roaches of marijuana. They were informed by the prosecution witness, Edna Edwina Reyes, that she saw the killing and she pointed to Gabriel Gerente as one of the three men who killed Clarito.

The policemen proceeded to the house of the appellant who was then sleeping. They told him to come out of the house and they introduced themselves as policemen. Patrolman Urrutia frisked appellant and found a coin purse in his pocket which contained dried leaves wrapped in cigarette foil. The dried leaves were sent to the National Bureau of Investigation for examination. The Forensic Chemist found them to be marijuana.

Only the appellant, Gabriel Gerente, was apprehended by the police. The other suspects, Fredo and Totoy Echigoren, are still at large.

On May 2, 1990, two separate informations were filed by Assistant Provincial Prosecutor Benjamin Caraig against him for Violation of Section 8, Art. II, of R.A. 6425, and for Murder.

When arraigned on May 16, 1990, the appellant pleaded not guilty to both charges. A joint trial of the two cases was held. On September 24, 1990, the trial court rendered a decision convicting him of Violation of Section 8 of R.A. 6425 and of Murder.

In this appeal of the appellant, the following errors are ascribed to the trial court:

1. the court a quo gravely erred in admitting the marijuana leaves adduced in evidence by the prosecution; and

2. the court a quo gravely erred in convicting the accused-appellant of the crimes charged despite the absence of evidence required to prove his guilt beyond reasonable doubt.

The appellant contends that the trial court erred in admitting the marijuana leaves as evidence in violation of his constitutional right not to be subjected to illegal search and seizure, for the dried marijuana leaves were seized from him in the course of a warrantless arrest by the police officers. We do not agree.

The search of appellant's person and the seizure of the marijuana leaves in his possession were valid because they were incident to a lawful warrantless arrest.

Paragraphs (a) and (b), Section 5, Rule 113 of the Revised Rules of Court provide:

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

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

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

The policemen arrested Gerente only some three (3) hours after Gerente and his companions had killed Blace. They saw Blace dead in the hospital and when they inspected the scene of the crime, they found the instruments of death: a piece of wood and a concrete hollow block which the killers had used to bludgeon him to death. The eye-witness, Edna Edwina Reyes, reported the happening to the policemen and pinpointed her neighbor, Gerente, as one of the killers. Under those circumstances, since the policemen had personal knowledge of the violent death of Blace and of facts indicating that Gerente and two others had killed him, they could lawfully arrest Gerente without a warrant. If they had postponed his arrest until they could obtain a warrant, he would have fled the law as his two companions did.

In Umil vs. Ramos, 187 SCRA 311, the arrest of the accused without a warrant was effected one (1) day after he had shot to death two Capcom soldiers. The arrest was held lawful by this Court upon the rationale stated by us in People vs. Malasugui, 63 Phil. 221, 228, thus:

"To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many instances."

The search conducted on Gerente's person was likewise lawful because it was made as an incident to a valid arrest. This is in accordance with Section 12, Rule 126 of the Revised Rules of Court which provides:

"SECTION 12. Search incident to lawful arrest. — A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant."

The frisk and search of appellant's person upon his arrest was a permissible precautionary measure of arresting officers to protect themselves, for the person who is about to be arrested may be armed and might attack them unless he is first disarmed. In Adams vs. Williams, 47 U.S. 143, cited in Justice Isagani A. Cruz's Constitutional Law, 1991 Edition, p. 150, it was ruled that "the individual being arrested may be frisked for concealed weapons that may be used against the arresting officer and all unlawful articles found in his person, or within his immediate control may be seized."

There is no merit in appellant's allegation that the trial court erred in convicting him of having conspired and cooperated with Fredo and Totoy Echigoren to kill Blace despite the testimony of Dr. Valentin Bernales that the fracture on the back of the victim's skull could have been inflicted by one person only.

What Dr. Bernales stated was a mere possibility that only one person dropped the concrete hollow block on the head of the victim, smashing it. That circumstance, even if true, does not absolve the other two co-conspirators in the murder of Blace for when there is a conspiracy to commit a crime, the act of one conspirator is the act of all. The conspiracy was proven by the eyewitness-testimony of Edna Edwina Reyes, that she overheard the appellant and his companions conspire to kill Blace, that acting in concert, they attacked their victim with a piece of wood and a hollow block and caused his death. "When there is no evidence indicating that the principal witness for the prosecution was moved by improper motive, the presumption is that he was not so moved and his testimony is entitled to full faith and credit" (People vs. Belibet, 199 SCRA 587, 588). Hence, the trial court did not err in giving full credit to Edna Reyes' testimony.

Appellant's failure to escape (because he was very drunk) is no indicium of his innocence.

The Solicitor General correctly pointed out in the appellee's brief that the award of P30,000.00 as civil indemnity for the death of Clarito Blace should be increased to P50,000.00 in accordance with our ruling in People vs. Sison, 189 SCRA 643.

WHEREFORE, the appealed decision is hereby AFFIRMED, with modification of the civil indemnity awarded to the heirs of the victim, Clarito Blace, which is hereby increased to P50,000.00.

SO ORDERED.

Cruz, Bellosillo and Quiason, JJ ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 81510 March 14, 1990

HORTENCIA SALAZAR, petitioner, vs.HON. TOMAS D. ACHACOSO, in his capacity as Administrator of the Philippine Overseas Employment Administration, and FERDIE MARQUEZ, respondents.

Gutierrez & Alo Law Offices for petitioner.

 

SARMIENTO, J.:

This concerns the validity of the power of the Secretary of Labor to issue warrants of arrest and seizure under Article 38 of the Labor Code, prohibiting illegal recruitment.

The facts are as follows:

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1. On October 21, 1987, Rosalie Tesoro of 177 Tupaz Street, Leveriza, Pasay City, in a sworn statement filed with the Philippine Overseas Employment Administration (POEA for brevity) charged petitioner Hortencia Salazar, viz:

04. T: Ano ba ang dahilan at ikaw ngayon ay narito atnagbibigay ng salaysay.

S: Upang ireklamo sa dahilan ang aking PECC Card ay ayaw ibigay sa akin ng dati kong manager. — Horty Salazar — 615 R.O. Santos, Mandaluyong, Mla.

05. T: Kailan at saan naganap and ginawang panloloko sa iyo ng tao/mga taong inireklamo mo?

S. Sa bahay ni Horty Salazar.

06. T: Paano naman naganap ang pangyayari?

S. Pagkagaling ko sa Japan ipinatawag niya ako. Kinuha ang PECC Card ko at sinabing hahanapan ako ng booking sa Japan. Mag 9 month's na ako sa Phils. ay

hindi pa niya ako napa-alis. So lumipat ako ng ibang company pero ayaw niyang ibigay and PECC Card ko.

2. On November 3, 1987, public respondent Atty. Ferdinand Marquez to whom said complaint was assigned, sent to the petitioner the following telegram:

YOU ARE HEREBY DIRECTED TO APPEAR BEFORE FERDIE MARQUEZ POEA ANTI ILLEGAL RECRUITMENT UNIT 6TH FLR. POEA BLDG. EDSA COR. ORTIGAS AVE. MANDALUYONG MM ON NOVEMBER 6, 1987 AT 10 AM RE CASE FILED AGAINST YOU. FAIL NOT UNDER PENALTY OF LAW.

4. On the same day, having ascertained that the petitioner had no license to operate a recruitment agency, public respondent Administrator Tomas D. Achacoso issued his challenged CLOSURE AND SEIZURE ORDER NO. 1205 which reads:

HORTY SALAZARNo. 615 R.O. Santos St.Mandaluyong, Metro Manila

Pursuant to the powers vested in me under Presidential Decree No. 1920 and Executive Order No. 1022, I hereby order the CLOSURE of your recruitment agency being operated at No. 615 R.O. Santos St., Mandaluyong, Metro Manila and the seizure of the documents and paraphernalia being used or intended to be used as the means of committing illegal recruitment, it having verified that you have —

(1) No valid license or authority from the Department of Labor and Employment to recruit and deploy workers for overseas employment;

(2) Committed/are committing acts prohibited under Article 34 of the New Labor Code in relation to Article 38 of the same code.

This ORDER is without prejudice to your criminal prosecution under existing laws.

Done in the City of Manila, this 3th day of November, 1987.

5. On January 26, 1988 POEA Director on Licensing and Regulation Atty. Estelita B. Espiritu issued an office order designating respondents Atty. Marquez, Atty. Jovencio Abara and Atty. Ernesto Vistro as members of a team tasked to implement Closure and Seizure Order No. 1205. Doing so, the group assisted by Mandaluyong policemen and mediamen Lito Castillo of the People's Journal and Ernie Baluyot of News Today proceeded to the residence of the petitioner at 615 R.O. Santos St., Mandaluyong, Metro Manila. There it was found that petitioner was operating Hannalie Dance Studio. Before entering the place, the team served said Closure and Seizure order on a certain Mrs. Flora Salazar who voluntarily allowed them entry into the premises. Mrs. Flora Salazar informed the team that Hannalie Dance Studio was accredited with Moreman Development (Phil.). However, when required to show credentials, she was unable to produce any. Inside the studio, the team chanced upon twelve talent performers — practicing a dance number and saw about twenty

more waiting outside, The team confiscated assorted costumes which were duly receipted for by Mrs. Asuncion Maguelan and witnessed by Mrs. Flora Salazar.

6. On January 28, 1988, petitioner filed with POEA the following letter:

Gentlemen:

On behalf of Ms. Horty Salazar of 615 R.O. Santos, Mandaluyong, Metro Manila, we respectfully request that the personal properties seized at her residence last January 26, 1988 be immediately returned on the ground that said seizure was contrary to law and against the will of the owner thereof. Among our reasons are the following:

1. Our client has not been given any prior notice or hearing, hence the Closure and Seizure Order No. 1205 dated November 3, 1987 violates "due process of law" guaranteed under Sec. 1, Art. III, of the Philippine Constitution.

2. Your acts also violate Sec. 2, Art. III of the Philippine Constitution which guarantees 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."

3. The premises invaded by your Mr. Ferdi Marquez and five (5) others (including 2 policemen) are the private residence of the Salazar family, and the entry, search as well as the seizure of the personal properties belonging to our client were without her consent and were done with unreasonable force and intimidation, together with grave abuse of the color of authority, and constitute robbery and violation of domicile under Arts. 293 and 128 of the Revised Penal Code.

Unless said personal properties worth around TEN THOUSAND PESOS (P10,000.00) in all (and which were already due for shipment to Japan) are returned within twenty-four (24) hours from your receipt hereof, we shall feel free to take all legal action, civil and criminal, to protect our client's interests.

We trust that you will give due attention to these important matters.

7. On February 2, 1988, before POEA could answer the letter, petitioner filed the instant petition; on even date, POEA filed a criminal complaint against her with the Pasig Provincial Fiscal, docketed as IS-88-836. 1

On February 2, 1988, the petitioner filed this suit for prohibition. Although the acts sought to be barred are alreadyfait accompli, thereby making prohibition too late, we consider the petition as one for certiorari in view of the grave public interest involved.

The Court finds that a lone issue confronts it: May the Philippine Overseas Employment Administration (or the Secretary of Labor) validly issue warrants of search and seizure (or arrest) under Article 38 of the Labor Code? It is also an issue squarely raised by the petitioner for the Court's resolution.

Under the new Constitution, which states:

. . . 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. 2

it is only a judge who may issue warrants of search and arrest. 3 In one case, it was declared that mayors may not exercise this power:

xxx xxx xxx

But it must be emphasized here and now that what has just been described is the state of the law as it was in September, 1985. The law has since been altered. No longer does the mayor have at this time the power to conduct preliminary investigations, much less issue orders of arrest. Section 143 of the Local Government Code, conferring this power on the mayor has been abrogated, renderedfunctus officio by the 1987 Constitution which took effect on February 2, 1987, the date of its ratification by the Filipino people. Section 2, Article III of the 1987 Constitution pertinently provides that "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 person or things to be seized." The constitutional proscription has thereby been manifested that thenceforth, the function of determining probable cause and issuing, on the basis thereof, warrants of arrest or search warrants, may be validly exercised only by judges, this being evidenced by the elimination in the present Constitution of the phrase, "such other responsible officer as may be authorized by law" found in the counterpart provision of said 1973 Constitution, who, aside from judges, might conduct preliminary investigations and issue warrants of arrest or search warrants. 4

Neither may it be done by a mere prosecuting body:

We agree that the Presidential Anti-Dollar Salting Task Force exercises, or was meant to exercise, prosecutorial powers, and on that ground, it cannot be said to be a neutral and detached "judge" to determine the existence of probable cause for purposes of arrest or search. Unlike a magistrate, a prosecutor is naturally interested in the success of his case. Although his office "is to see that justice is done and not necessarily to secure the conviction of the person accused," he stands, invariably, as the accused's adversary and his accuser. To permit him to issue search warrants and indeed, warrants of arrest, is to make him both judge and jury in his own right, when he is neither. That makes, to our mind and to that extent, Presidential Decree No. 1936 as amended by Presidential Decree No. 2002, unconstitutional. 5

Section 38, paragraph (c), of the Labor Code, as now written, was entered as an amendment by Presidential Decrees Nos. 1920 and 2018 of the late President Ferdinand Marcos, to Presidential Decree No. 1693, in the exercise of his legislative powers under Amendment No. 6 of the 1973 Constitution. Under the latter, the then Minister of Labor merely exercised recommendatory powers:

(c) The Minister of Labor or his duly authorized representative shall have the power to recommend the arrest and detention of any person engaged in illegal recruitment. 6

On May 1, 1984, Mr. Marcos promulgated Presidential Decree No. 1920, with the avowed purpose of giving more teeth to the campaign against illegal recruitment. The Decree gave the Minister of Labor arrest and closure powers:

(b) The Minister of Labor and Employment shall have the power to cause the arrest and detention of such non-licensee or non-holder of authority if after proper investigation it is determined that his activities constitute a danger to national security and public order or will lead to further exploitation of job-seekers. The Minister shall order the closure of companies, establishment and entities found to be engaged in the recruitment of workers for overseas employment, without having been licensed or authorized to do so. 7

On January 26, 1986, he, Mr. Marcos, promulgated Presidential Decree No. 2018, giving the Labor Minister search and seizure powers as well:

(c) The Minister of Labor and Employment or his duly authorized representatives shall have the power to cause the arrest and detention of such non-licensee or non-holder of authority if after investigation it is determined that his activities constitute a danger to national security and public order or will lead to further exploitation of job-seekers. The Minister shall order the search of the office or premises and seizure of documents, paraphernalia, properties and other implements used in illegal recruitment activities and the closure of companies, establishment and entities found to be engaged in the recruitment of workers for overseas employment, without having been licensed or authorized to do so. 8

The above has now been etched as Article 38, paragraph (c) of the Labor Code.

The decrees in question, it is well to note, stand as the dying vestiges of authoritarian rule in its twilight moments.

We reiterate that the Secretary of Labor, not being a judge, may no longer issue search or arrest warrants. Hence, the authorities must go through the judicial process. To that extent, we declare Article 38, paragraph (c), of the Labor Code, unconstitutional and of no force and effect.

The Solicitor General's reliance on the case of Morano v. Vivo 9 is not well-taken. Vivo involved a deportation case, governed by Section 69 of the defunct Revised Administrative Code and by Section 37 of the Immigration Law. We have ruled that in deportation cases, an arrest (of an undesirable alien) ordered by the President or his duly authorized representatives, in order to carry out a final decision of deportation is valid. 10 It is valid, however, because of the recognized supremacy of the Executive in matters involving foreign affairs. We have held: 11

xxx xxx xxx

The State has the inherent power to deport undesirable aliens (Chuoco Tiaco vs. Forbes, 228 U.S. 549, 57 L. Ed. 960, 40 Phil. 1122, 1125). That power may be exercised by the Chief Executive "when he deems such action necessary for the peace and domestic tranquility of the nation." Justice Johnson's opinion is that when the Chief Executive finds that there are aliens whose continued presence in the country is injurious to the public interest, "he may, even in the absence of express law, deport them". (Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil. 534, 568, 569; In re McCulloch Dick, 38 Phil. 41).

The right of a country to expel or deport aliens because their continued presence is detrimental to public welfare is absolute and unqualified (Tiu Chun Hai and Go Tam vs. Commissioner of Immigration and the Director of NBI, 104 Phil. 949, 956). 12

The power of the President to order the arrest of aliens for deportation is, obviously, exceptional. It (the power to order arrests) can not be made to extend to other cases, like the one at bar. Under the Constitution, it is the sole domain of the courts.

Moreover, the search and seizure order in question, assuming, ex gratia argumenti, that it was validly issued, is clearly in the nature of a general warrant:

Pursuant to the powers vested in me under Presidential Decree No. 1920 and Executive Order No. 1022, I hereby order the CLOSURE of your recruitment agency being operated at No. 615 R.O. Santos St., Mandaluyong, Metro Manila and the seizure of the documents and paraphernalia being used or intended to be used as the means of committing illegal recruitment, it having verified that you have —

(1) No valid license or authority from the Department of Labor and Employment to recruit and deploy workers for overseas employment;

(2) Committed/are committing acts prohibited under Article 34 of the New Labor Code in relation to Article 38 of the same code.

This ORDER is without prejudice to your criminal prosecution under existing laws. 13

We have held that a warrant must identify clearly the things to be seized, otherwise, it is null and void, thus:

xxx xxx xxx

Another factor which makes the search warrants under consideration constitutionally objectionable is that they are in the nature of general warrants. The search warrants describe the articles sought to be seized in this wise:

1) All printing equipment, paraphernalia, paper, ink, photo equipment, typewriters, cabinets, tables, communications/ recording equipment, tape recorders, dictaphone and the like used and/or connected in the printing of the "WE FORUM" newspaper and any and all documents/communications, letters and facsimile of prints related to the "WE FORUM" newspaper.

2) Subversive documents, pamphlets, leaflets, books, and other publications to promote the objectives and purposes of the subversive organizations known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement; and

3) Motor vehicles used in the distribution/circulation of the "WE FORUM" and other subversive materials and propaganda, more particularly,

1) Toyota-Corolla, colored yellow with Plate No. NKA 892;

2) DATSUN, pick-up colored white with Plate No. NKV 969;

3) A delivery truck with Plate No. NBS 542;

4) TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and

5) TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with marking "Bagong Silang."

In Stanford v. State of Texas, the search warrant which authorized the search for "books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Parties of Texas, and the operations of the Community Party in Texas," was declared void by the U.S. Supreme Court for being too general. In like manner, directions to "seize any evidence in connection with the violation of SDC 13-3703 or otherwise" have been held too general, and that portion of a search warrant which authorized the seizure of any "paraphernalia which could be used to violate Sec. 54-197 of the Connecticut General Statutes (the statute dealing with the crime of conspiracy)" was held to be a general warrant, and therefore invalid. The description of the articles sought to be seized under the search warrants in question cannot be characterized differently.

In the Stanford case, the U.S. Supreme court calls to mind a notable chapter in English history; the era of disaccord between the Tudor Government and the English Press, when "Officers of the Crown were given roving commissions to search where they pleased in order to suppress and destroy the literature of dissent both Catholic and Puritan." Reference herein to such historical episode would not be relevant for it is not the policy of our government to suppress any newspaper or publication that speaks with "the voice of non-conformity" but poses no clear and imminent danger to state security.14

For the guidance of the bench and the bar, we reaffirm the following principles:

1. Under Article III, Section 2, of the l987 Constitution, it is only judges, and no other, who may issue warrants of arrest and search:

2. The exception is in cases of deportation of illegal and undesirable aliens, whom the President or the Commissioner of Immigration may order arrested, following a final order of deportation, for the purpose of deportation.

WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of the Labor Code is declared UNCONSTITUTIONAL and null and void. The respondents are ORDERED to return all materials seized as a result of the implementation of Search and Seizure Order No. 1205.

No costs.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.