SECOND DIVISION
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERLINDA GONZALES y EVANGELISTA, accused-appellant.
D E C I S I O N
QUISUMBING, J.:
On appeal is the decision[i][1] dated March 8, 1995, of the Regional Trial Court of Iloilo City, Branch 39, in Criminal Case No. 42441, which convicted appellant Erlinda Gonzales y Evangelista of violating Section 4, Article II[ii][2] of the Dangerous Drugs Act (R.A. No. 6425) and sentenced her to life imprisonment.
In an information dated December 23, 1993, the Provincial Prosecutor of Iloilo charged appellant with illegal transport of marijuana leaves and fruiting tops, allegedly committed as follows:
That on or about August 30, 1993, in the Municipality of Dueñas, Province of Iloilo, Philippines, and within the jurisdiction of this Court, the above-named accused, without any lawful purpose or justifiable motive, did then and there willfully, unlawfully and feloniously transport, deliver and/or distribute ten (10) kilos of marijuana leaves and fruiting tops (compressed in bricks) without being authorized by law to transport, deliver and/or distribute the same.
CONTRARY TO LAW.[iii][3]
On January 31, 1994, appellant was arraigned and with assistance of counsel pleaded not guilty to the charge. Trial on the merits ensued.
The prosecution presented two witnesses, namely, PO1 Reggie Pedroso and Angela Baldevieso, forensic chemist of the PNP. In addition, the prosecution presented the following object and documentary evidence: (1) ten bundles of dried marijuana leaves or fruiting tops, weighing 9.560 kilograms;[iv][4] (2) Physical Sciences Report No. D-087-93 issued by Angela Baldevieso, PNP forensic chemist;[v][5] and (3) black traveling bag.[vi][6] On the other hand, the defense presented appellant herself and Isaac Lamera, the trisikad driver.
PO1 Reggie Pedroso narrated that in the evening of August 29, 1993, the Chief of Police of Dueñas, Iloilo and other policemen on duty including himself, received information that a woman with long hair, wearing maong pants and jacket, and Ray Ban sunglasses would be transporting marijuana along the national highway. According to the tipped information, the woman would bring a black traveling bag and would ride a trisikad. Based on this information, the Chief of Police, that same evening, instructed his men to conduct mobile patrol at 5:00 A.M. in the morning of August 30, 1993, in the poblacion of Dueñas and along the national highway. Three teams were formed. One was assigned to cover the public market. Another was dispatched to Barangay Tinocuan. The third team, composed of PO1 Pedroso, PO3 Queque, and SPO2 Baculina, was assigned to the national highway in Barangay Poblacion A.
According to PO1 Pedroso, his team of policemen started patrolling at around 5:00 A.M. of August 30, 1993. They made the rounds on board a mobile car. At about 6:45 A.M., they passed by a woman who fitted the informer’s description. She was standing along the national highway holding a black traveling bag in a trisikad. The law enforcers were one meter away from her when they spotted her. They alighted from their car and asked her who owns the traveling bag. The woman denied ownership of the bag. When PO1 Pedroso inquired from the trisikad driver, later identified as Isaac Lamera, about the ownership of the bag, the latter pointed to the woman as the owner of the said bag. The policemen then requested the woman to open the bag but she refused. When asked regarding the contents of the bag, Lamera answered he does not know. Believing that the bag contained marijuana per tipped information, the policemen brought appellant, Lamera and the bag to the police station. There, the Chief of Police forcibly opened the locked black bag as the woman alleged that the key to the lock was with her three companions who were at the public market. Inside the bag, they found wrapped in newspaper ten (10) bricks of dried marijuana leaves. Later on, the woman was asked about her personal circumstances. She identified herself as Erlinda Gonzales, herein appellant. Afterwards, she was detained.[vii][7]
On August 31, 1993, the bricks were brought to the Police Crime Laboratory in Camp Delgado, Iloilo City for chemistry analysis. Angela Baldevieso, a forensic chemist of the PNP, who later testified for the prosecution, confirmed in her physical evidence report (Exh. D) that the bricks of dried leaves (Exh. B to C-7, inclusive) were marijuana, weighing 9.560 kilograms.[viii][8] Subsequently, a complaint for violation of Section 4 of R.A. 6425 was filed against appellant.
Appellant denied her involvement in the drug transport. She claimed that at about 6:30 A.M. on August 30, 1993, she was standing along the national highway, having just come from a friend’s house in Tacas, Dueñas. Just then, three policemen stepped out of a patrol car and asked her if she had a key to a black traveling bag they spotted in a trisikad which is about three arms length away from her. When she said “No”, PO1 Pedroso invited her to the municipal hall where she was questioned. She said she never boarded the trisikad. Although she confirmed that there was a black bag in the trisikad, she denied ownership of said bag. She stated that the bag was closed and padlocked. She insisted that the black bag presented in court (Exh. E) was not the same black traveling bag taken from the trisikad.[ix][9]
Lamera, the trisikad driver, testified that at about 6:30 A.M. on August 30, 1993, he was driving his vehicle with a male passenger when the latter suddenly told him to stop, saying he had forgotten something. His passenger told him to wait for him at the national highway, leaving a bag on top of his trisikad. When he arrived at the highway, he saw appellant and parked some three arms length away from her. He then left his trisikad to answer a call of nature. As he did, a police car stopped and three PNP members got off. They accosted him and asked who owned the bag. He replied that it belonged to his male passenger. When asked if appellant owned the bag, he answered “No.” Lamera averred that appellant was not holding the handle of the bag when the policemen arrived. Nor was she wearing Ray Ban sunglasses. He claimed that he only learned about the contents of the bag when they were inside the police station. When a black traveling bag was shown him during the trial, Lamera stated that it was not the black traveling bag that was left in his trisikad. According to him, the bag presented in court was taller than the bag his male passenger left in his trisikad. He said the bag seized by the police was made of sackcloth, it had a zipper and wheels at the bottom.[x][10]
The court found for the prosecution, disbelieved the defense, and convicted appellant, thus:
WHEREFORE, premises considered, the accused Erlinda Gonzales y Evangelista alias Linda Gonzales, is hereby found guilty beyond reasonable doubt of Violation of Sec. 4, Art. II of R.A. 6425 as amended, and is hereby sentenced to suffer the penalty of life imprisonment and to pay a fine of P20,000.00 and the costs.
The nine kilos and 560 grams of compressed bricks of dried marijuana leaves and fruiting tops are ordered confiscated and forfeited in favor of the government and must be turned over to the Board through the National Bureau of Investigation, for proper disposition, pursuant to Sec. 20 of R.A. 6425, as amended.
The accused, who is detained, is credited with the number of days she spent under detention if she is qualified, otherwise, she shall be credited only with four-fifths (4/5) of her preventive imprisonment.
SO ORDERED.[xi][11]
Hence, this appeal, imputing the following errors to the trial court:
I
THAT THE HONORABLE LOWER COURT ERRED IN HOLDING THAT THE ACCUSED-APPELLANT WAS CAUGHT IN THE ACT OF TRANSPORTING NINE (9) KILOS AND 560 GRAMS OF DRIED MARIJUANA LEAVES AND FRUITING TOPS (COMPRESSED IN BRICKS) WHICH WERE PLACED IN A BLACK TRAVELLING BAG.
II
THE HONORABLE COURT ERRED IN NOT HOLDING THAT THE ARREST OF THE ACCUSED-APPELLANT WAS ILLEGAL AND THEREFORE THE MARIJUANA BRICKS ALLEGEDLY TAKEN FROM THE TRISIKAD IS INADMISSIBLE IN EVIDENCE AS AGAINST HER.
III
THE HONORABLE LOWER COURT ERRED IN HOLDING THAT THE POLICE OFFICER WHEN THEY ARRESTED THE ACCUSED-APPELLANT WERE REGULARLY PERFORMING THEIR DUTIES.
IV
THE HONORABLE LOWER COURT ERRED IN NOT RECEIVING THE TESTIMONY OF THE ACCUSED-APPELLANT AND HER WITNESSES.
V
THE HONORABLE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED.[xii][12]
In sum, the pertinent issues for our resolution are: (1) Were the testimonies of prosecution witnesses credible and sufficient to prove appellant’s guilt beyond reasonable doubt? (2) Was appellant’s warrantless arrest legal, thereby making the bricks of marijuana leaves allegedly seized from her admissible in evidence?
On the first issue, appellant states that she was not transporting marijuana in a black traveling bag aboard the trisikad. She denies being a passenger of the trisikad, or owning the black traveling bag containing marijuana. She claims she was not holding the bag’s handle when the police accosted her. She asserts that it is unusual for her to hold on to something containing contraband in the presence of police officers. She argues that the prosecution simply alleged that she was holding the handle of the bag in order to justify an illegal arrest and to escape a charge of arbitrary detention. Next, appellant assails the credibility of PO1 Pedroso. She argues that the trial court erred in giving credence to his testimony on mere presumption that PO1 Pedroso had regularly performed his duty. Finally, appellant faults the lower court for not believing the testimony of Lamera, the trisikad driver. She insists that Lamera had no reason to lie as they do not know each other.
At the outset we note that, contrary to appellant’s fourth assignment of error, she and her witness, Lamera, were heard and their testimonies recorded by the trial court. Unfortunately for appellant, their version was not believed by said court.
In essence, appellant now challenges the trial court’s assessment of the testimonies of prosecution and defense witnesses. When credibility is in issue, this Court generally defers to the findings of the trial court considering that it is in a better position to decide the question, having heard the witnesses themselves and observed their manner and deportment during the trial.[xiii][13] Its findings on the credibility of witnesses will be sustained by appellate courts unless the trial court overlooked, misunderstood, or misapplied some facts or circumstances of weight and substance which will alter the assailed decision or affect the result of the case.[xiv][14] In this case, it appears plain to us that appellant failed to point to any fact or circumstance overlooked or ignored by the trial court to cast doubt on the credibility of the prosecution witnesses sufficiently.
Appellant’s defense is bare denial. As held time and again, mere denial unsupported and unsubstantiated by clear and convincing evidence becomes negative and self-serving, deserves no weight in law and cannot be given greater evidentiary value over convincing, straightforward and probable testimonies on affirmative matters.[xv][15] Mere denial and allegations of frame-up have been invariably viewed by the courts with disfavor for these defenses are easily concocted. They are common and standard defenses in prosecutions involving violation of the dangerous drugs law.[xvi][16]
Moreover, it appears far-fetched that the police and the prosecution would claim that appellant was holding the handle of the bag merely to justify her arrest and avoid a charge of arbitrary detention. PO1 Pedroso categorically declared that appellant was holding the black traveling bag in the trisikad. He was just one meter from appellant when he alighted from the patrol car and accosted the appellant who had in her possession, according to the eyewitness, the black traveling bag.
As pointed out by the Solicitor General, the positive testimony of the apprehending policeman outweighs appellant’s negative testimony. Additionally, appellant presented no evidence to rebut the presumption that PO1 Pedroso had performed his task in a regular manner. We are thus constrained to agree with the trial court’s finding that the police testimony here is worthy of credence.
In contrast, it plainly appears that defense witness Lamera flip-flopped in his testimony. On record, Lamera has two sworn statements. In the first affidavit dated August 30, 1993 executed before PO3 Gildo Pelopero, Lamera claimed that he was hired by four persons to deliver a black bag at the national highway, one of whom rode his trisikad while the other three followed. Upon reaching the national highway, policemen intercepted them and brought them to the municipal building.[xvii][17]
In his affidavit dated September 1, 1993, executed before Judge Inocentes de Ocampo, Lamera stated that on the day of the incident, four persons flagged down his trisikad. However, only one of them, a woman, who turned out to be appellant, got in his trisikad and rode to the national highway where she was apprehended by the PNP.[xviii][18]
But during the trial Lamera testified differently, varying his testimony from his earlier sworn statements. This time, he declared that the black bag in question belongs to a male passenger. His testimony on the witness stand on September 27, 1994, reads:
Q- About what time was that?
A- 6:30.
Q- And you said that man whom you claim, you did not know loaded a black travelling bag on your trisikad?
A- Yes, sir.
x x x
Q- Now, when the man that man whom you said you did not know hailed you and loaded to the trisikad a black bag, did you not ask the man what is inside the black travelling bag?
A- No, sir.
Q- Neither that man tell you what is inside or what is the contents of that black travelling bag?
A- No, sir.
Q- What was when that man put the travelling bag on your trisikad did not that man say anything to you?
A- He asked me if I am going to the highway and I answered yes.
Q- And when you said yes, what else did that man say if he said anything else?
A- He said wait a minute I will alight here in the intersection because I forgot something.
x x x
Q- Now, when he said or after he said wait a minute I will alight here, what did the man do?
A- He went back and then he told me to go first to the highway and wait for him.
Q- Went back to where?
A- From the place where he rode.
x x x
Q- Did that man tell you a particular or given place to the highway where you will wait for him?
A- Yes, sir.
Q- The man told you that you have to bring that travelling bag at that place where there was a woman waiting?
A- No, sir.
Q- Did not the man tell you to bring the travelling bag to that particular part of the highway where the accused was waiting?
A- No, sir.
Q- And you brought the black travelling bag at the very place where the accused was there also?
A- It was only a coincidence that the accused was there.
Q- And that woman or the accused was at that time wearing a maong jacket?
A- No, sir. She was wearing a black jacket.
Q- It is not a dark maong?
A- No, sir.
Q- She had a rayban or goggles at that time?
A- None, sir.
Q- She had a long hair at the time?
A- Yes, sir.
Q- She was also wearing maong pants?
A- Yes, sir.
Q- Now, while driving your trisikad with that black travelling bag did you not try to feel it just for curiosity sake to know what is inside?
A- None, sir.
Q- Because that man whom you said you did not know return for no reason at all, did you not suspect that the travelling bag is containing a marijuana or any contrabands goods?
A- None, sir.
Q- And according to you, it was there at the highway that policemen arrived and confronted the accused about the travelling bag?
A- Yes, sir.
Q- You were also confronted by the police officer about the travelling bag?
A- Yes, sir.
Q- And the two of you were brought to the municipal hall of Dueñas, Iloilo?
A- Yes, sir.[xix][19] [Emphasis ours.]
The foregoing testimony of Lamera on the witness stand materially contradicts his sworn statements dated August 30, 1993 and September 1, 1993. A witness who makes two sworn statements which are contradictory to his testimony in court impeaches his own credibility.[xx][20] Hence, in our view, the trial court committed no error in discounting Lamera’s statements by giving them no evidentiary value. Moreover, appellant failed to present other and more credible witnesses to support or corroborate her own as well as Lamera’s testimony.
On the second issue, appellant contends that her arrest was illegal, hence, the marijuana bricks are inadmissible in evidence. But after a careful consideration of the testimony of witnesses and the arguments adduced by the parties, we find that appellant’s contention is bereft of merit.
Basic is the rule that no arrest, search or seizure can be made without a valid warrant issued by a competent judicial authority. The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.[xxi][21] Any evidence obtained in violation of said right shall be inadmissible for any purpose in any proceeding.[xxii][22]
Nevertheless, the constitutional proscription against warrantless searches and seizures admits of certain legal and judicial exceptions, as follows: (1) warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence; (2) seizure of evidence in plain view; (3) search of a moving vehicle; (4) consented warrantless search; (5) customs search; (6) stop and frisk; and (7) exigent and emergency circumstances.[xxiii][23]
Moreover, a lawful arrest without a warrant may be made by a peace officer or a private person under the following circumstances:
a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts and circumstances that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with Section 7 of Rule 112.[xxiv][24]
In this case, the trial court found and held that appellant was caught in flagrante carrying marijuana leaves and fruiting tops at the time of her arrest. A crime was actually being committed by the appellant; thus, her arrest and the search of her black traveling bag fall squarely under paragraph (a) of the aforecited provisions of the Rules allowing a warrantless search incident to lawful arrest. On this score, we are in agreement with the trial court. While it is true that the apprehending officers were not armed with a search warrant when the search was conducted over the personal effects of appellant, nevertheless under the circumstances of the case, there was sufficient probable cause for said police officers to believe that appellant was then and there committing a crime.
Probable cause signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man’s belief that the person accused is guilty of the offense with which he is charged; or the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched.[xxv][25] The required probable cause that will justify a warrantless search and seizure is not determined by a fixed formula but is resolved according to the facts of each case.[xxvi][26]
In People vs. Valdez,[xxvii][27] we had occasion to recall several instances where tipped information, as in this case, has become a sufficient probable cause to effect a warrantless search and seizure. There, a policeman was tipped off by a civilian “asset” that a thin Ilocano person with a green bag was about to transport marijuana from Banaue, Ifugao. Said information was received by the policeman the very same morning he was waiting for a ride in Banaue to report for work in Lagawe, the capital town of Ifugao province. Thus, faced with such on-the-spot information, the law enforcer had to respond quickly to the call of duty. Obviously, there was not enough time to secure a search warrant considering the time involved in the process. In fact, in view of the urgency of the case, the policeman together with the civilian “asset” proceeded immediately to Hingyon, Ifugao, to pursue the drug trafficker. In Hingyon, he flagged down buses bound for Baguio City and Manila, and looked for the person described by the informer. The target of the pursuit was just the “thin Ilocano person with a green bag” and no other. And so, when the policeman inspected the bus bound for Manila, he just singled out the passenger with the green bag. Evidently, there was definite information of the identity of the person engaged in transporting prohibited drugs at a particular time and place. The law enforcer already had an inkling of the identity of the person he was looking for. As a matter of fact, no search at all was conducted on the baggage of other passengers.
In the case at bar, the police officers were tipped off only on the evening of August 29, 1993. The contraband was to be transported early in the morning of the following day. Certainly, the law enforcers had no time to secure the needed warrants. The only recourse left to the police was to arrest the courier in flagrante. Note that the law enforcers had a definite target for their arrest, that is, a woman with long hair, wearing maong pants and jacket and Ray Ban sunglasses, carrying a black traveling bag. There was a description about the identity of the person engaged in transporting prohibited drugs at a particular time and place. The law enforcers already had an inkling of the personal circumstances of the person they were looking for. Accordingly, when the police officers saw the woman who fitted the tipped description given earlier and who was later identified as the appellant, standing near a trisikad, along the national highway holding the handle of a black traveling bag on a trisikad, they had probable cause to apprehend appellant. In our view, appellant’s arrest was legal and the search of her bag conducted by the police was not illegal. Consequently, the marijuana bricks seized from appellant during the search is admissible in evidence against her since they were taken incidental to a lawful arrest.
A final word on the penalty. With the passage of R.A. No. 7659, the penalty for violation of Section 4 of the Dangerous Drugs Law is reclusion perpetua to death and a fine ranging from P500,000.00 to P10,000,000.00 if the marijuana involved weighs 750 grams or more. Here, the marijuana involved weighs more than 9 kilograms. However, R.A. No. 7659 took effect only on December 31, 1993, while the offense herein was committed earlier on August 30, 1993. Thus, the law at the time of the commission of the offense, R.A. 6425, applies. R.A. No. 7659 cannot be made to apply retroactively, for it obviously is not favorable to the accused-appellant.
However, we find that the trial court sentenced appellant to “life imprisonment.” This is error, for here the applicable penalty is reclusion perpetua. Life imprisonment and reclusion perpetua are distinct penalties.[xxviii][28] The penalty of reclusion perpetua entails an imprisonment of at least 30 years, after which the convict becomes eligible for pardon. It carries with it accessory penalties. Life imprisonment does not have a fixed duration and does not carry with it accessory penalties.[xxix][29] Under Section 4, Article II of R.A. 6425, the applicable statute, the prescribed penalty for the transport of prohibited drugs is reclusion perpetua to death, not life imprisonment. Absent qualifying circumstances, the penalty imposable in the present case is only reclusion perpetua.
WHEREFORE, the decision of the Regional Trial Court of Iloilo City, Branch 39, in Criminal Case No. 42441, finding appellant ERLINDA GONZALES Y EVANGELISTA, guilty beyond reasonable doubt of illegal transport of marijuana is AFFIRMED, with the MODIFICATION that appellant is hereby sentenced to suffer the penalty of reclusion perpetua and to pay the fine of Twenty Thousand Pesos (P20,000.00) and the costs.
SO ORDERED.
Bellosillo, (Chairman), Buena, and De Leon, Jr., JJ., concur.
Mendoza, J., in the result.
Republic of the Philippines
SUPREME COURT
Manila
SUPREME COURT
Manila
EN BANC
G.R. No. 133917 February 19, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NASARIO MOLINA y MANAMA @ "BOBONG" and GREGORIO MULA y MALAGURA @ "BOBOY", accused-appellants.
vs.
NASARIO MOLINA y MANAMA @ "BOBONG" and GREGORIO MULA y MALAGURA @ "BOBOY", accused-appellants.
YNARES-SANTIAGO, J.:
To sanction disrespect and disregard for the Constitution in the name of protecting the society from lawbreakers is to make the government itself lawless and to subvert those values upon which our ultimate freedom and liberty depend.1
For automatic review is the Decision2 of the Regional Trial Court of Davao City, Branch 17, in Criminal Case No. 37,264-96, finding accused-appellants Nasario Molina y Manamat alias "Bobong" and Gregorio Mula y Malagura alias "Boboy," guilty beyond reasonable doubt of violation of Section 8,3 of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended by Republic Act No. 7659,4 and sentencing them to suffer the supreme penalty of death.
The information against accused-appellants reads:
That on or about August 8, 1996, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, in conspiracy with each other, did then and there willfully, unlawfully and feloniously was found in their possession 946.9 grants of dried marijuana which are prohibited.
CONTRARY TO LAW.5
Upon arraignment on September 4, 1996, accused-appellants pleaded not guilty to the accusation against them.6 Trial ensued, wherein the prosecution presented Police Superintendent Eriel Mallorca, SPO1 Leonardo Y. Pamplona, Jr., and SPO1 Marino S. Paguidopon, Jr. as witnesses.
The antecedent facts are as follows:
Sometime in June 1996, SPO1 Marino Paguidopon, then a member of the Philippine National Police detailed at Precinct No. 3, Matina, Davao City, received an information regarding the presence of an alleged marijuana pusher in Davao City.7 The first time he came to see the said marijuana pusher in person was during the first week of July 1996. SPO1 Paguidopon was then with his informer when a motorcycle passed by. His informer pointed to the motorcycle driver, accused-appellant Mula, as the pusher. As to accused-appellant Molina, SPO1 Paguidopon had no occasion to see him before the arrest. Moreover, the names and addresses of the accused- appellants came to the knowledge of SPO1 Paguidopon only after they were arrested.8
At about 7:30 in the morning of August 8, 1996, SPO1 Paguidopon received an information that the alleged pusher will be passing at NHA, Ma- a, Davao City any time that morning.9 Consequently, at around 8:00 A.M. of the same day, he called for assistance at the PNP, Precinct No. 3, Matina, Davao City, which immediately dispatched the team of SPO4 Dionisio Cloribel (team leader), SPO2 Paguidopon (brother of SPO1 Marino Paguidopon), and SPO1 Pamplona, to proceed to the house of SPO1 Marino Paguidopon where they would wait for the alleged pusher to pass by.10
At around 9:30 in the morning of August 8, 1996, while the team were positioned in the house of SPO1 Paguidopon, a "trisikad" carrying the accused-appellants passed by. At that instance, SPO1 Paguidopon pointed to the accused-appellants as the pushers. Thereupon, the team boarded their, vehicle and overtook the "trisikad."11 SPO1 Paguidopon was left in his house, thirty meters from where the accused-appellants were accosted.12
The police officers then ordered the "trisikad" to stop. At that point, accused-appellant Mula who was holding a black bag handed the same to accused-appellant Molina. Subsequently, SPO1 Pamplona introduced himself as a police officer and asked accused-appellant Molina to open the bag.13 Molina replied, "Boss, if possible we will settle this."14 SPO1 Pamplona insisted on opening the bag, which revealed dried marijuana leaves inside. Thereafter; accused-appellants Mula and Molina were handcuffed by the police officers.15
On December 6, 1996, accused-appellants, through counsel, jointly filed a Demurrer to Evidence, contending that the marijuana allegedly seized from them is inadmissible as evidence for having been obtained in violation of their constitutional right against unreasonable searches and seizures.16 The demurrer was denied by the trial court.17 A motion for reconsideration was filed by accused-appellants, but this was likewise denied. Accused-appellants waived presentation of evidence and opted to file a joint memorandum.
On April 25, 1997, the trial court rendered the assailed decision,18 the decretal portion of which reads:
WHEREFORE, finding the evidence of the prosecution alone without any evidence from both accused who waived presentation of their own evidence through their counsels, more than sufficient to prove the guilt of both accused of the offense charged beyond reasonable doubt, pursuant to Sec. 20, sub. par. 5 of Republic Act 7659, accused NASARIO MOLINA and GREGORIO MULA, are sentenced to suffer a SUPREME PENALTY OF DEATH through lethal injection under Republic Act 8176, to be effected and implemented as therein provided for by law, in relation to Sec. 24 of Rep. Act 7659.
The Branch Clerk of Court of this court, is ordered to immediately elevate the entire records of this case with the Clerk of Court of the Supreme Court, Manila, for the automatic review of their case by the Supreme Court and its appropriate action as the case may be.
SO ORDERED.19
Pursuant to Article 47 of the Revised penal Code and Rule 122, Section 10 of the Rules of Court, the case was elevated to this Court on automatic review. Accused-appellants contend:
I.
THAT THE MARIJUANA IS IN ADMISSIBLE IN EVIDENCE FOR HAVING BEEN SEIZED IN VIOLATION OF APPELLANTS' CONSTITUTIONAL RIGHTS AGAINST UNREASONABLE, SEARCHES AND SEIZURES;
II.
THAT ASSUMING IT IS ADMISSIBLE IN EVIDENCE, THE GOVERNMENT HAS NOT OTHERWISE PROVED THEIR GUILT BEYOND REASONABLE DOUBT; AND
III.
THAT, FINALLY, ASSUMING THEIR GUILT HAS BEEN PROVED BEYOND REASONABLE DOUBT, THE IMPOSABLE PENALTY FOR VIOLATION OF SEC. 8 OF RA No. 7659 (sic), IN THE ABSENCE OF ANY AGGRAVATING CIRCUMSTANCE, IS LIFE IMPRISONMENT, NOT DEATH.20
The Solicitor General filed a Manifestation and MO1ion (In Lieu of Brief), wherein he prayed for the acquittal of both accused-appellants.
The fundamental law of the land mandates that searches and seizures be carried out in a reasonable fashion, that is, by virtue or on the strength of a search warrant predicated upon the existence of a probable cause. The pertinent provision of the Constitution provides:
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.21
Complementary to the foregoing provision is the exclusionary rule enshrined under Article III, Section 3, paragraph 2, which bolsters and solidifies the protection against unreasonable searches and seizures.22 Thus:
Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.
Without this rule, the right to privacy would be a form of words, valueless and undeserving of mention in a perpetual charter of inestimable human liberties; so too, without this rule, the freedom from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not to merit this Court's high regard as a freedom implicit in the concept of ordered liberty.23
The foregoing constitutional proscription, however, is not without exceptions. Search and seizure may be made without a warrant and the evidence obtained therefrom may be admissible in the following instances: (1) search incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of customs laws; (4) seizure of evidence in plain view; (5) when the accused himself waives his right against unreasonable searches and seizures;24 and (6) stop and frisk situations (Terry search).25
The first exception (search incidental to a lawful arrest) includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest which must precede the search. In this instance, the law requires that there be first a lawful arrest before a search can be made --- the process cannot be reversed.26 As a rule, an arrest is considered legitimate if effected with .a valid warrant of arrest. The Rules of Court, however, recognizes permissible warrantless arrests. Thus, a peace officer or a private person may, without 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 (arrest in flagrante delicto); (b) when an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it (arrest effected in hot pursuit); and (c) when the person to be arrested is a prisoner who has escaped from a penal establishment or a place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another ( arrest of escaped prisoners ).27
In the case at bar, the court a quo anchored its judgment of conviction on a finding that the warrantless arrest of accused-appellants, and the subsequent search conducted by the peace officers, are valid because accused-appellants were caught in flagrante delicto in possession of prohibited drugs.28 This brings us to the issue of whether or not the warrantless arrest, search and seizure in the present case fall within the recognized exceptions to the warrant requirement.
In People v. Chua Ho San,29 the Court held that in cases of in flagrante delicto arrests, a peace officer or a private person may, without a warrant, arrest a person when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. The arresting officer, therefore, must have personal knowledge of such fact or, as recent case law adverts to, personal knowledge of facts or circumstances convincingly indicative or constitutive of probable cause. As discussed in People v. Doria,30 probable cause means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest.
As applied to in flagrante delicto arrests, it is settled that "reliable information" alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, are not sufficient to constitute probable cause that would justify an in flagrante delicto arrest. Thus, in People v. Aminnudin,31 it was held that "the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the MN Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension."
Likewise, in People v. Mengote,32 the Court did not consider "eyes... darting from side to side :.. [while] holding ... [one's] abdomen", in a crowded street at 11:30 in the morning, as overt acts and circumstances sufficient to arouse suspicion and indicative of probable cause. According to the Court, "[b]y no stretch of the imagination could it have been inferred from these acts that an offense had just been committed, or was actually being committed or was at least being attempted in [the arresting officers'] presence." So also, in People v. Encinada,33 the Court ruled that no probable cause is gleanable from the act of riding a motorela while holding two plastic baby chairs.1âwphi1.nêt
Then, too, in Malacat v. Court of Appeals,34 the trial court concluded that petitioner was attempting to commit a crime as he was "`standing at the comer of Plaza Miranda and Quezon Boulevard' with his eyes 'moving very fast' and 'looking at every person that come (sic) nearer (sic) to them.'"35 In declaring the warrantless arrest therein illegal, the Court said:
Here, there could have been no valid in flagrante delicto ... arrest preceding the search in light of the lack of personal knowledge on the part of V u, the arresting officer, or an overt physical act, on the part of petitioner, indicating that a crime had just been committed, was being committed or was going to be committed.36
It went on to state that –
Second, there was nothing in petitioner's behavior or conduct which could have reasonably elicited even mere suspicion other than that his eyes were "moving very fast" - an observation which leaves us incredulous since Yu and his teammates were nowhere near petitioner and it was already 6:30 p.m., thus presumably dusk. Petitioner and his companions were merely standing at the comer and were not creating any commotion or trouble...
Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was "discovered" "inside the front waistline" of petitioner, and from all indications as to the distance between Yu and petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not have been visible to Yu.37
Clearly, to constitute a valid in flagrante delicto arrest, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.38
In the case at bar, accused-appellants manifested no outward indication that would justify their arrest. In holding a bag on board a trisikad, accused-appellants could not be said to be committing, attempting to commit or have committed a crime. It matters not that accused-appellant Molina responded "Boss, if possible we will settle this" to the request of SPO1 Pamplona to open the bag. Such response which allegedly reinforced the "suspicion" of the arresting officers that accused-appellants were committing a crime, is an equivocal statement which standing alone will not constitute probable cause to effect an inflagrante delicto arrest. Note that were it not for SPO1 Marino Paguidopon (who did not participate in the arrest but merely pointed accused-appellants to the arresting officers), accused-appellants could not be the subject of any suspicion, reasonable or otherwise.
While SPO1 Paguidopon claimed that he and his informer conducted a surveillance of accused-appellant Mula, SPO1 Paguidopon, however, admitted that he only learned Mula's name and address after the arrest. What is more, it is doubtful if SPO1 Paguidopon indeed recognized accused-appellant Mula. It is worthy to note that, before the arrest, he was able to see Mula in person only once, pinpointed to him by his informer while they were on the side of the road. These circumstances could not have afforded SPO1 Paguidopon a closer look at accused-appellant Mula, considering that the latter was then driving a motorcycle when, SPO1 Paguidopon caught a glimpse of him. With respect to accused-appellant Molina, SPO1 Paguidopon admitted that he had never seen him before the arrest.
This belies the claim of SPO1 Pamplona that he knew the name of accused-appellants even before the arrest, to wit –
"Q- When you said that certain Mula handed a black bag to another person and how did you know that it was Mula who handed the black bag to another person?
A- Because I have already information from Paguidopon, regarding Mula and Molina, when they pass by through the street near the residence of Paguidopon. He told that the one who is big one that is Gregorio Mula and the thin one is Nazario Molina"39
The aforecited testimony of SPO1 Pamplona, therefore, is entirely baseless SPO1 Pamplona could not have learned the name of accused-appellants from SPO1 Paguipodon because Paguipodon himself, who allegedly conducted the surveillance, was not even aware of accused-appellants' name and address prior to the arrest.
Evidently, SPO1 Paguidopon, who acted as informer of the arresting officers, more so the arresting officers themselves, could not have been certain of accused-appellants' identity, and were, from all indications, merely fishing for evidence at the time of the arrest.
Compared to People v. Encinada, the arresting officer in the said case knew appellant Encinada even before the arrest because of the latter's illegal gambling activities, thus, lending at least a semblance of validity on the arrest effected by the peace officers. Nevertheless, the Court declared in said case that the warrantless arrest and the consequent search were illegal, holding that "[t]he prosecution's evidence did not show any suspicious behavior when the appellant disembarked from the ship or while he rode the motorela. No act or fact demonstrating a felonious enterprise could be ascribed to appellant under such bare circumstances."40
Moreover, it could not be said that accused-appellants waived their right against unreasonable searches and seizure. Implied acquiescence to the search, if there was any, could not have been more than mere passive conformity given under intimidating or coercive circumstances and is thus considered no consent at all within the purview of the constitutional guarantee.41
Withal, the Court holds that the arrest of accused-appellants does not fall under the exceptions allowed by the rules. Hence, the search conducted on their person was likewise illegal. Consequently, the marijuana seized by the peace officers could not be admitted as evidence against accused-appellants, and the Court is thus, left with no choice but to find in favor of accused-appellants.
While the Court strongly supports the campaign of the government against drug addiction and commends the efforts of our law-enforcement officers towards this drive, all efforts for the achievement of a drug-free society must not encroach on the fundamental rights and liberties of individuals as guaranteed in the Bill of Rights, which protection extends even to the basest of criminals.
WHEREFORE, the Decision of the Regional Trial Court of Davao City, Branch 17, in Criminal Case No. 37, 264-96, is REVERSED and SET ASIDE. For lack of evidence to establish their guilt beyond reasonable doubt, accused-appellants Nasario Molina y Manamat alias "Bobong" and Gregorio Mula y Malagura alias "Boboy", are ACQUITTED and ordered RELEASED from confinement unless they are validly detained for other offenses. No costs.
SO ORDERED.
Davide, Jr., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 90640 March 29, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BONIFACIO BARROS, accused-appellant.
vs.
BONIFACIO BARROS, accused-appellant.
The Solicitor General for plaintiff-appellee.
Bartolome F. Macliing for accused-appellant.
FELICIANO, J.:
Bonifacio Barros was charged with violating Section 4 of R.A. No. 6425, as amended (known as the Dangerous Drugs Act of 1972), in an information which read as follows:
That on or about September 6, 1987, from Chackchakan, Bontoc, Mountain Province, to Nacagang, Sabangan, Mountain Province, and within the jurisdiction of this Honorable Court, the above-named accused while being a passenger in a Dangwa Bus with Plate No. ABZ 242, destined for Baguio City, without lawful authority did then and there willfully, unlawfully and feloniously carry with him as part of his baggage and transport about four (4) kilos of dried marijuana which the accused intended for distribution and sale at Baguio City, knowing fully well that said marijuana is a prohibited drug or [a] source of [a] prohibited drug.
Contrary to law. 1
After trial, the trial court convicted Bonifacio Barros of violation of Section 4 of R.A. No. 6425 as amended and sentenced him to suffer the penalty of reclusion perpetua 2 and to pay a fine of P20,000.00.
Barros now appeals from the judgment of conviction and essentially asks this Court to determine —
Whether the [trial] court deprived [the] accused of his right to due process by:
(1) ignoring manifest absence of the mandatory warrant in the arrest and search of the accused;
(2) admitting confessions extracted from the accused after two hours of interrogation conducted by four (4) soldiers one after the other under intimidating circumstances; and
(3) misappreciation of facts. 3
The relevant facts as found by the trial court and as set forth in the court's decision are as follows:
That on September 6, 1987, M/Sgt. Francis Yag-as and S/Sgt. James Ayan, both members of the P.C. Mountain Province Command, rode the Dangwa Bus bearing Plate No. ABZ-242 bound for Sabangan, Mountain Province. Upon reaching Chackchakan, Bontoc, Mountain Province, the bus stopped and both M/Sgt. Yag-as and S/Sgt. Ayan, who were seated at the back, saw accused carrying a carton, board the bus and seated himself on seat No. 18 after putting the carton under his seat. Thereafter, the bus continued and upon reaching Sabangan, M/Sgt. Yag-as and S/Sgt. Ayan before they alighted, it being their station, called C2C [Fernando] Bongyao to inspect the carton under seat No. 18. After C2C Bongyao inspected the carton, he found out that it contained marijuana and he asked the passengers [who] the owner of the carton [was] but nobody answered. Thereafter, C2C Bongyao alighted with the carton and S/Sgt. Ayan and C2C Bongyao invited the herein accused to the detachment for questioning as accused was the suspected owner of the carton containing marijuana. As both P.C. officers Yag-as and Ayan saw accused, Bonifacio Barros carrying that same carton when he boarded the bus at Chackchakan. That upon entering the detachment the carton was opened in the presence of accused and accused Bonifacio Barros was asked if he owned the carton of marijuana and accused denied [this]. That when accused denied ownership of the carton of marijuana, the P.C. officers called for the bus conductor who pinpointed to Bonifacio Barros as the owner of the carton of marijuana. That during the oral investigation of accused, he finally admitted ownership of the carton (Exhibit "B") containing [four] 4 paper-wrapped packages of dried marijuana. (Exhibits "B-1", "B-2", "B-3" and "B-4").
. . . [A]fter he was orally investigated, [the accused] was brought to the Abatan General Hospital, Bauko, Mountain Province, for physical examination and a Medico Legal Certificate was issued (Exhibits "F" and "F-1"), indicating that accused suffered no physical injuries and that accused was probably under the influence of marijuana. That Dra. Danna Aleta inquired from accused Bonifacio Barros if he smoked marijuana and accused admitted having smoked marijuana. That after accused was medically examined, he was escorted by three members of the P.C. to the P.C. detachment at Tadian, Mountain Province, where the carton of marijuana (Exhibit "B") was also brought. That at Tadian, a seizure receipt was made together with a certification (Exhibit "C") pointing out to the fact that approximately 4 kilos of dried marijuana leaves were from accused Bonifacio Barros and which certification was signed by the accused (Exhibit "C-1") and subscribed before Judge Romualdo P. Awisan (Exhibit "C-2"). That in connection with the confiscation of the marijuana subject of the instant case and the apprehension of accused Bonifacio Barros, the P.C. officers who figured in this case namely M/Sgt. Yag-as and S/Sgt. Ayan and C2C Bongyao have correspondingly executed their sworn statements (Exhibits "A", "A-1", "A-2", "D", "D-1", "D-2").
. . . [S]amples of the marijuana were taken from each of the four packages marked Exhibits "B-1", "B-2", "B-3", and "B-4" and placed in four separate envelopes, following an order of the court to that effect and were hand-carried by Police Officer Jack Masilian to Camp Dangwa, La Trinidad, Benguet for laboratory test. That Capt. Carlos Figueroa, the Forensic Expert conducted two kinds of test on the four samples sent by the court and found them to be positive of marijuana as per his report No. D-011-88. (Exhibits "I" and "I-1"). 4
The defense of the accused on the facts consisted of a simple denial of the ownership or possession of the carton box containing the four (4) kilos of marijuana. The trial court summarized the story of the accused in the following manner:
That accused Bonifacio Barros since 1984 was employed at the Honeymoon Disco Pad, Baguio City. That on September 5, 1987, accused was sent by his Manager, Engineer Arsenio Cuanguey to Bontoc, Mountain Province, to get their records from one Billy Cuanguey at Chackchakan, Bontoc, Mountain Province. That upon arriving at Chackchakan, Bontoc, Mountain Province, accused looked for the residence of Billy Cuanguey and he was pointed to a house where someone was tending a store. That accused asked the man if Billy Cuanguey was there and the man answered that he did not know where Billy went. So accused asked the man if Billy left [in] his room the tapes and records and the man said he did not know. Thereafter, accused asked the man to stay over night in that house where Billy was staying as it was the instruction of his manager. That the following day, September 6, 1987, after taking breakfast, accused, was going back to Baguio. On that morning of September 6, 1987, accused Bonifacio Barros boarded the Dangwa Bus at Chackchakan, Bontoc, Mountain Province bound for Baguio City. That when the Dangwa Bus reached the P.C. Checkpoint, soldiers went inside the bus and checked the baggages. That a soldier fished out a carton under the seat of [the] accused and shouted who owns the carton but nobody answered. Thereafter, the soldier went down with the carton and moments later returned to the bus and called accused Bonifacio Barros to alight from the bus. That Mr. Barros was surprised why he was ordered to alight and accused took his baggage which consisted of a pasiking and went down the bus. That accused was led by the soldiers to a house where his pasiking was taken and his clothes removed and his wallet taken. Accused was made to accept ownership of the carton of marijuana but he refused.
. . . [A]t 11:00 o'clock that same day, September 6, 1987, three soldiers escorted accused to the hospital and from the hospital, they proceeded to the Municipality of Tadian, Mountain Province. That upon reaching Tadian, accused was brought to the P.C. Camp and there he saw someone typing. Later, the soldiers allegedly presented to accused some papers which he was asked to sign but accused refused. That accused was threatened and if he refused to sign the papers that something will happen to him. That moments later, accused was threatened [by] a soldier [who] pointed a gun to him and told him to sign the paper and because of fear, he had to sign the document marked Exhibit "C." Thereafter, the soldiers allegedly threatened again accused and asked him to sign his name on the inside part of the cover of the carton of marijuana. Exhibit "X" for the court and Exhibit "B-5" for the prosecution. That after staying at Tadian for one night, accused was brought back to Sabangan and later transferred to the Bontoc Provincial Jail. 5
Turning to the legal defenses of the accused, we consider first his allegation that the police authorities had impermissibly extracted confessions from him after two (2) hours of interrogation, "under intimidating circumstances," by four (4) soldiers one after the other. The accused complains that he was not informed of his rights to remain silent and to counsel, that he had not waived his rights as an accused person, and that he had signed a confession involuntarily and without the assistance of counsel. He essentially contends that the confession is inadmissible as evidence against him.
We find, however, that it is not necessary to pass upon the above contention of appellant Barros. For the trial court in reaching its judgment of conviction had not taken into consideration the statements which had been obtained from the appellant during the interrogation conducted by the police officers. The trial court, so far as can be determined from its decision, totally disregarded Exhibits "C", "E" and "B-5," the alleged uncounselled confessions. The trial court made very clear the bases of its conclusion that the accused was guilty beyond reasonable doubt of the offense charged; those bases did not include the alleged confessions:
First — M/Sgt. Francis Yag-as and S/Sgt. James Ayan testified that they saw the accused carrying the carton (Exhibit "B") when he boarded the bus at Chackchakan, Bontoc, Mountain Province. That the bus conductor pointed to accused at the checkpoint of Sabangan, Mountain Province. That accused is the owner of the carton (Exhibit "B"). That the carton (Exhibit "B") which contained four packages of dried marijuana leaves (Exhibits "B-1", "B-2", "B-3" and "B-4") was fished out from under the seat of the accused which fact was admitted by the accused himself.
Second — That per testimony of Dra. Danna Aleta, she examined accused Bonifacio Barros and that he suffered no physical injuries that would show that the accused was in anyway maltreated by the police authorities, and this fact was also admitted by accused to the effect that he was never harmed by the police nor the soldiers. Dra. Aleta also found that the accused was under the influence of drug[s] and that the accused admitted [to] her that he, accused, smoked marijuana. This is clear evidence that accused is not only a pusher of marijuana but also a user of said prohibited drugs. (See Exhibits "F" and "F-1" and TSN — Page 24 — Orpecio).
Third — The samples taken from Exhibits "B-1", "B-2", "B-3" and "B-4" sent by the court for laboratory test at Camp Dangwa, La Trinidad, Benguet were all positive of marijuana per Report No. D-011-88 (Exhibits "I" and "I-1") of Captain Carlos Figueroa, forensical expert.
Lastly, accused's testimony in his own behalf does not impress the court at it lacks the ring of truth. Besides, it is devoid of any corroboration. Our Supreme Court in this respect said:
The weak and uncorroborated denial of the accused cannot prevail over the clear, positive and straightforward testimony of prosecution witnesses [sic]." (People vs. Acelajao, 148 SCRA 142)." 6
We turn, therefore, to the second legal defense asserted by appellant Barros — i.e., that his constitutional right against unreasonable searches and seizures had been violated by the police authorities. The relevant constitutional provisions are found in Sections 2 and 3 [2], Article III of the 1987 Constitution which read as follows:
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 witness as he may produce, and particularly describing the place to be searched and the persons or things to be seized.
Sec. 3. . . .
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.
The general rule is that a search and seizure must be carried out through or with a judicial warrant; otherwise such search and seizure becomes "unreasonable" within the meaning of the above quoted constitutional
provision. 7 The evidence secured thereby — i.e., the "fruits" of the search and seizure — will be inadmissible in evidence "for any purpose in any
proceeding. 8
provision. 7 The evidence secured thereby — i.e., the "fruits" of the search and seizure — will be inadmissible in evidence "for any purpose in any
proceeding. 8
The requirement that a judicial warrant must be obtained prior to the carrying out of a search and seizure is, however, not absolute. There are certain exceptions recognized in our law, one of which relates to the search of moving vehicles. 9 Peace officers may lawfully conduct searches of moving vehicles — automobiles, trucks, etc. — without need of a warrant, it not being practicable to secure a judicial warrant before searching a vehicle, since such vehicle can be quickly moved out of the locality or jurisdiction in which the warrant may be sought. 10 In carrying out warrantless searches of moving vehicles, however, peace officers are limited to routine checks, that is, the vehicles are neither really searched nor their occupants subjected to physical or body searches, the examination of the vehicles being limited to visual inspection. In Valmonte vs. De Villa, 11 the Court stated:
[N]ot all searches and seizures are prohibited. Those which are reasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case.
Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds, or simply looks into a vehicle, or flashes a light therein, these do not constitute unreasonable search. (Citations omitted)
When, however, a vehicle is stopped and subjected to an extensive search, such a warrantless search would be constitutionally permissible only if the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender or the contents or cargo of the vehicle are or have been instruments or the subject matter or the proceeds of some criminal offense. 12
This Court has in the past found probable cause to conduct without a judicial warrant an extensive search of moving vehicles in situations where (1) there had emanated from a package the distinctive smell of marijuana; 13 (2) agents of the Narcotics Command ("Narcom") of the Philippine National Police ("PNP") had received a confidential report from informers that a sizeable volume of marijuana would be transported along the route where the search was conducted; 14 (3) Narcom agents were informed or "tipped off" by an undercover "deep penetration" agent that prohibited drugs be brought into the country on a particular airline flight on a given date; 15 (4) Narcom agents had received information that a Caucasian coming from Sagada, Mountain Province, had in his possession prohibited drugs and when the Narcom agents confronted the accused Caucasian, because of a conspicuous bulge in his waistline, he failed to present his passport and other identification papers when requested to do
so; 16 and (5) Narcom agents had received confidential information that a woman having the same physical appearance as that of the accused would be transporting marijuana. 17
so; 16 and (5) Narcom agents had received confidential information that a woman having the same physical appearance as that of the accused would be transporting marijuana. 17
In the case at bar, however, we have been unable to find in the record of this case any circumstance which constituted or could have reasonably constituted probable cause for the peace officers to search the carton box allegedly owned by appellant Barros. The carrying of such a box by appellant onto a passenger bus could not, by itself, have convinced M/Sgt. Francis Yag-as and S/Sgt. James Ayan either that the appellant was a law violator or the contents of the box were instruments or the subject matter or proceeds of some criminal offense. The carrying of carton boxes is a common practice among our people, especially those coming from the rural areas since such boxes constitute the most economical kind of luggage possible. The peace officers here involved had not received any information or "tip-off" from an informer; no such a "tip-off" was alleged by the police officers before or during the trial. The police officers also did not contend that they had detected the odor of dried marijuana, or appellant Barros had acted suspiciously in the course of boarding the bus and taking a seat during the trip to Sabangan, nor in the course of being asked whether he owned the carton box later ascertained to contain four (4) kilos of marijuana. The testimony of the law enforcement officers who had apprehended the accused (M/Sgt. Francis Yag-as and S/Sgt. James Ayan), and who had searched the box in his possession, (C2C Fernando Bongyao), simply did not suggest or indicate the presence of any such probable cause.
M/Sgt. Francis Yag-as testified as follows:
Direct Examination by Fiscal Moises Ayochok:
xxx xxx xxx
Q: On September 6, 1987, do you recall if you reported for duty?
A: Yes, sir.
Q: And where did you go on the morning of September 6, 1987?
A: I went to Sabangan, sir.
Q: What transportation did you use?
A: Dangwa Bus with Plate No. ABZ-242.
Q: Where did you board the Dangwa Bus?
A: At the Dangwa Terminal at Bontoc.
Q: When you said you boarded the bus with Plate No. ABZ-242 which started for Baguio City from Bontoc, Mountain Province, and while it stopped at Chackchakan, Bontoc, Mountain Province, was there anything that happened?
xxx xxx xxx
A: When the bus stopped at Sitio Chackchakan, we saw a person carrying a baggage or carton and boarded the bus then took his seat, seat No. 18.
Q: What was he carrying that time Mr. witness?
A: A carton.
Q: And where did he place that carton which he was carrying?
A: In front of seat No. 18 where he sat.
Q: You mean inside the bus?
A: Yes.
Q: And after this person boarded the bus at sitio Chackchakan and holding a carton and placed it in front of seat No. 18, what happened to the bus afterwards?
A: It proceeded to Sabangan.
Q: And at Sabangan, Mountain Province, what happened, if any?
A: The bus stopped for the routinary checkpoint and inspection.
Q: When they [were at] the routinary checkpoint, what happened?
Atty. Sokoken:
He did not say routinary checkpoint. He said routinary inspection.
Fiscal Ayochok:
We substitute the words inspection with checkpoint to satisfy the objection of counsel.
Q: What happened when you stopped for the routinary inspection?
A: We called C2C Bongyao a member of the detachment to inspect the baggage of the suspect and when C2C .
Atty. Sokoken:
We request that [the] witness answers the question that he testifies [to] not in the narrative way.
Fiscal Ayochok:
He is answering the question.
Court:
Let the witness finish.
A: When Bongyao inspected the baggage of the suspect and he found out that it contained MJ.
Q: What do you mean MJ?
A: Marijuana.
xxx xxx xxx 18
For his part, S/Sgt. James Ayan testified as follows:
Direct Examination:
xxx xxx xxx
Q: And in the morning of September 6, 1987, do you recall where you were particularly in the afternoon?
A: In the morning of September 6, 1987, we rode on a Dangwa bus [with Plate] No. ABZ-242 going to Sabangan.
Q: You said we. Who was your companion that time?
A: Master Sgt. Yag-as, sir.
Q: And when this bus reached Chackchakan, Bontoc, Mountain Province, what did you see?
A: We saw a civilian board the bus we were riding carrying a carton.
Q: And where did this civilian who boarded the bus which you were riding on place that carton?
A: He placed the carton under the seat of No. 18.
Q: Inside the bus, Mr. witness?
A: Inside the bus, sir.
Q: And what about the passenger who boarded the bus carrying the carton baggage, where did he go?
A: He sat facing the seat No. 18.
Q: Between seat No. 18 and the seat seated by the civilian who brought the carton, where was the carton exactly located?
A: As far as I know, sir, it was located just beneath seat No. 18.
Q: When this bus which you rode on which the passenger carrying the carton luggage you saw reached Sabangan what happened there?
A: When the bus reached Sabangan that we were riding, it was stopped for routinary inspection.
Q: What happened next?
A: We called C2C Bongyao to inspect the baggage that we have just seen at Chackchakan.
Q: Did he inspect the baggage?
A: Yes, sir.
Q: And what was the contents of that baggage if there was any?
A: It turned out that the contents of the baggage was MJ sir.
Q: You mean marijuana?
A: Yes, sir.
xxx xxx xxx
Cross Examination:
xxx xxx xxx
Q: You stated that on September 6, 1987, a Dangwa bus stopped at Sabangan, Mt. Province for purposes of military check-up, is that correct?
A: Routinary inspection, sir.
Q: But it was not you who entered the Dangwa bus for routinary check-up?
A: We were there riding in the bus, sir, and we called C2C Bongyao to come.
Q: So your purpose in riding inside the Dangwa bus was actually to see that person carrying this carton which is marked Exhibit "B"?
A: No, sir, because I am a detachment commander at Sabangan and that is why I called one of my men, sir.
Q: So that you have full knowledge that from Chackchakan, Bontoc, going to Sabangan, there is already marijuana being carried inside that bus?
A: That is only our suspect [should be suspicion], sir.
Q: Would you please tell this Honorable Court why you have not inspected it when you arrived at Alab? Why have you waited to reach Sabangan to inspect it?
A: Because it is the checkpoint, sir, at Nacagang, Sabangan.
Q: Are you now admitting that you do not have authority to inspect the baggage here in Bontoc?
A: We just wanted it checked in Sabangan, sir.
Q: Could you give us a very special reason why you have to wait in Sabangan?
A: Because we are stationed in Sabangan and that is the checkpoint.
Fiscal Ayochok:
Why argue with the witness? It is up for them to check it at the proper checkpoint.
Court:
Sustained.
xxx xxx xxx 19
The testimony of C2C Fernando Bongyao is much briefer, but equally uninformative:
Direct Examination:
Q: On September 6, 1987, at around 9:30 a.m., do you recall having reported for duty at Nacagang, Sabangan, Mountain Province?
A: Yes, sir.
Q: And while you were on duty at Nacagang, Sabangan, was there anything unusual that happened that time?
A: Yes, sir.
Q: What was that Mr. witness?
A: When we were on the checkpoint, the bus stopped bearing Plate No. ABZ-242.
Q: When the bus stopped, what did you do?
A: While on my way to check the bus, Master Sergeant Yag-as and Ayan called for me, sir, and they told me that a carton was placed under seat No. 18, sir.
Q: And when you were told to inspect that carton under seat No. 18, did you inspect that carton?
A: I inspected it, sir.
Q: You said you inspected that carton, what did you do in inspecting that carton?
A: I inserted my hand inside and when I removed my hand, it was a stuff of marijuana, sir.
xxx xxx xxx 20
So far as the record itself is concerned, therefore, it would appear that there existed no circumstance which might reasonably have excited the suspicion of the two (2) police officers riding in the same bus as appellant Barros. They asked the police officers at the checkpoint at Sabangan to inspect the box allegedly carried by appellant Barros apparently on a mere guess that appellant Barros might be carrying something in the nature of contraband goods. There was, in other words, nothing to show that appellant Barros was then in the process of "actually committing" or "attempting to commit" a crime. 21 There was, moreover, nothing on the record that could have reasonably led the two (2) police officers to believe that "an offense [had] in fact just been committed" when appellant Barros boarded the bus at Chackchakan or when he was asked whether he owned the box here involved at the checkpoint in Sabangan. The two (2) police officers, according to the record, had no "personable knowledge of facts indicating that the person to be arrested (appellant Barros) had committed it." There was, in brief, no basis for a valid warrantless arrest. Accordingly, the search and seizure of the carton box was equally non-permissible and invalid. 22 The "fruits" of the invalid search and seizure — i.e., the four (4) kilos of marijuana — should therefore not have been admitted in evidence against appellant Barros.
The Solicitor General, however, contends that appellant Barros had waived any irregularities which may have attended his arrest. Presumably, the Solicitor General also argues that appellant Barros has waived the non-admissibility of the carton (Exhibit "B") which contained four (4) packages of dried marijuana leaves (Exhibits "B-1", "B-2", "B-3" and "B-4"). The Solicitor General said:
. . . [E]ven assuming in gratia argumenti that irregularities attended the arrest of appellant, still the same cannot be questioned at this late stage. Well-settled is the doctrine laid down in the case of Callanta vs. Villanueva (77 SCRA 377), and later reiterated in the more recent case of Bagcal vs. Villaraza (120 SCRA 525), that "posting of [a] bail bond constitutes waiver of any irregularity attending the arrest of a person and estops him from questioning its validity." Here, appellant had in fact posted the required bail to obtain his provisional liberty, albeit his application was subsequently denied (see TSN, Feb. 10, 1988, p. 65). Consistent with jurisprudence, therefore, he should be deemed to have waived any irregularity attending his arrest, if any there be, and cannot now be heard to assail the same. 23
It might be supposed that the non-admissibility of evidence secured through an invalid warrantless arrest or a warrantless search and seizure may be waived by an accused person. The a priori argument is that the invalidity of an unjustified warrantless arrest, or an arrest effected with a defective warrant of arrest may be waived by applying for and posting of bail for provisional liberty, so as to estop as accused from questioning the legality or constitutionality of his detention or the failure to accord him a preliminary investigation. We do not believe, however, that waiver of the latter (by, e.g., applying for and posting of bail) necessarily constitutes, or carries with it, waiver of the former — an argument that the Solicitor General appears to be making impliedly. Waiver of the non-admissibility of the "fruits" of an invalid warrantless arrest and of a warrantless search and seizure is not casually to be presumed, if the constitutional right against unlawful searches and seizures is to retain its vitality for the protection of our people. In the case at bar, defense counsel had expressly objected on constitutional grounds to the admission of the carton box and the four (4) kilos of marijuana when these were formally offered in evidence by the prosecution. 24 We consider that appellant's objection to the admission of such evidence was made clearly and seasonably and that, under the circumstances, no intent to waive his rights under the premises can be reasonably inferred from his conduct before or during during the trial.
In the dissenting opinion, my learned brother Melo, J. takes the view that appellant Barros had waived his rights by his "stoic deportment" consisting of failure to object to the search by the police authorities immediately after the opening of the carton box:
. . . In point of fact, when the police authorities inspected the carton of marijuana and asked accused-appellant who owned the box, accused-appellant denied ownership of the box or carton and failed to even mutter the least bit of protest (p. 3, Decision). His demeanor should therefore be construed as implicit acquiescence to the search inasmuch as the objection thereto is vulnerable to express or implied waiver (People vs. Kagui Malasugui (63 Phil. 221 [1936]); 1 Bernas, Constitution of the Republic of the Philippines, First ed., 1987, p. 108). . . . . 25
It is submitted, with respect, that Kagui Malasugui is not applicable to the case at bar; rather it is People vs. Burgos, 26 promulgated fifty (50) years after Kaqui Malasuqui, that is applicable. In Burgos, this Court ruled that the accused is not to be presumed to have waived the unlawful search conducted on the occasion of his warrantless arrest "simply because he failed to object" —
. . . To constitute a waiver, it must appear first that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such a right; and lastly, that said person had an actual intention to relinquish the right (Pasion Vda. de Garcia vs. Locsin, 65 Phil. 689). The fact that the accused failed to object to the entry into his house does not amount to a permission to make a search therein (Magoncia vs. Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. de Garcia vs. Locsin (supra):
xxx xxx xxx
. . . As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. (Citation omitted).
We apply the rule that: "courts indulge every reasonable presumption against waiver of fundamental constitutional rights and that we do not presume acquiescence in the loss of fundamental rights." (Johnson vs. Zerbts, 304 U.S. 458). 27 (Emphasis supplied) .
Kagui Malasugui is not applicable to the instant case, because there the Court explicitly found that there was probable cause for the warrantless arrest of the accused and therefore, the warrantless search effected immediately thereafter was equally lawful. In Kagui Malasugui, a Chinese merchant was found lying on the ground with several nasty wounds in the head; one resulted in skull fracture and proved fatal. He died in the hospital to which he had been immediately brought by a policeman. Mr. Malasuqui became a suspect because when the victim was found, still alive, and upon being asked who had attacked him, laconically answered, "Kagui." On the same day, the accused Kagui Malasugui was arrested and a search of his person was conducted without objection from the accused. Before the body search of the accused was carried out, the accused voluntarily surrendered to the police authorities a couple of bracelets belonging to the deceased victim and when asked if he had anything else to surrender, he, in a trembling voice, answered in the negative. The police thereupon conducted a body search of the accused, without any objection from him; the search resulted in the production of additional personal effects belonging to the deceased victim. Under these circumstances, the Court ruled that:
When one voluntarily submits to a search or consents to have it made of his person or premises, he is precluded from complaining later thereof. (Cooley, Constitutional Limitations, 8th ed., [V]ol. I, p. 631.) The right to be secure from unreasonable search may, like every right, be waived and such waiver may be made either expressly or impliedly.
A propos my distinguished brother Melo, J.'s suggestion that the right against an unlawful warrantless search or arrest is personal and may not be invoked by the accused's counsel during trial, it is relevant to note that the law (the Rules of Court) specifies the proper time when objections to admission of evidence must be raised and that in the case at bar, a timely objection was made by appellant Barros. Finally, the accused's silence during the warrantless search should not be lightly taken as consent to that search, but rather construed as explained by the Court in Burgos, 28 and as pointed out by Mr. Justice Laurel, a "demonstration of regard for the supremacy of the law."
It is, of course, possible that appellant Barros may in fact have been guilty of transporting the four (4) kilos of marijuana. His guilt must, however, be established by constitutional means. The non-admissibility of evidence secured through a disregard of the constitutional right of the accused against unreasonable searches and seizures is the sanction imposed by the Constitution for disregard of such right; the sanction is a powerful one, for it renders inutile the work done by the police officers, by the prosecutor and by the trial court. It is a sanction which this Court has no choice but to apply in the instant case.
WHEREFORE, for all the foregoing, the decision of the Regional Trial Court, Branch 35, Bontoc, Mountain Province, in Criminal Case No. 687 is hereby REVERSED and SET ASIDE and appellant is hereby ACQUITTED of the crime charged, the evidence lawfully before the trial court not being sufficient to establish his guilt thereof beyond reasonable doubt. No costs.
SO ORDERED.
Bidin, Romero and Vitug, JJ., concur.
Melo, J., dissents.
Republic of the Philippines
SUPREME COURT
Manila
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 78954 June 18, 1990
THE PEOPLE OF THE PHILIPPINFS, plaintiff-appellee,
vs.
ARSENIO ALFONSO Y CAWADING, defendant-appellant.
vs.
ARSENIO ALFONSO Y CAWADING, defendant-appellant.
GUTIERREZ, JR., J.:
An information was filed against the accused Arsenio Alfonso y Cawading on August 14, 1986, charging him with violation of Sec. 4, Article II of Republic Act No. 6425, otherwise known as the "Dangerous Drugs Act of 1972," as amended. It reads:
The undersigned Special Counsel accuses ARSENIO ALFONSO Y CAWADING for Violation of Section 4, Article II, of Republic Act No. 6425, Otherwise known as "The Dangerous Drugs Act of 1972, as amended, committed as follows:
That on or about the 30th day of July, 1986, at Km. 16, Municipality of Tublay, Province of Benguet, Philippines, and within the jurisdiction of this Honorable Court, the above named accused, without any authority of law, did then and there willfuly, unlawfully and knowingly transport and carry in transit from Km. 63 to Baguio City, 2,900 grams more or less, of dried marijuana leaves contained in a white sack marked '14-14-14 compound fertilizer, which are sources and from which dangerous and prohibited drugs may be derived and manufactured, in violation of the said law.
CONTRARY TO LAW. (At p. 108, Orig. Records)
The accused-appellant entered a plea of not guilty during the arraignment. Trial on the merits proceeded and a judgment of conviction was subsequently rendered by the court a quo. Arsenio Alfonso now seeks a reversal of the said decision. The decretal portion of the assailed decision reads:
WHEREFORE, finding accused Arsenio Alfonso y Cawading guilty beyond reasonable doubt of transporting 2.65 kilos of dried marijuana leaves, a crime defined and penalized under Sec. 4, Article II, of Republic Act No. 6425, as amended, otherwise known as 'The Dangerous Drugs Act of 1972', the Court hereby sentences him to suffer the penalty of life imprisonment and a fine of Twenty Thousand Pesos, with subsidiary imprisonment in case of insolvency, and to pay the costs.
The sack of marijuana leaves taken from the accused is hereby declared forfeited in favor of the government and ordered destroyed without delay. Let it be turned over to the Dangerous Drugs Board for proper disposal without delay." (At p. 155, Orig. Records)
The accused-appellant specifically assigns the following alleged errors of the trial court in his appeal:
I
THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE EVIDENCE FOR THE PROSECUTION AND IN TOTALLY DISREGARDING THE EVIDENCE FOR THE DEFENSE.
II
THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED IN THE INFORMATION. (At p. 43, Appellant's Brief)
The facts of the case upon which the finding of guilt was based have been summarized in the People's Brief as follows:
On July 29, 1986, the Narcotics Command Office at Baguio City received a report from a civilian informer that on July 30, 1986, a certain Arsenio Alfonso y Cawading will be transporting a sack of marijuana to Baguio City (TSN pp. 3, 14, Nov. 17, 1986). Acting on said information, three (3) narcotics agents, namely: 2nd Lt. Jerry Valeroso, Sgt. Oscar Parajas, and Lt. Carlos Figueroa and eight (8) other civilians set-up a temporary checkpoint at Km. 16, Tublay, Benguet to intercept Arsenio Alfonso on July 30, 1986 (Id. pp. 2-3).
At 2:05 p.m. of that day, the Narcom Agents stopped a Dangwa Tranco passenger bus bound for Baguio City. The agents boarded the bus, introduced themselves as Narcom Agents and proceeded to inspect the luggages and belongings of the passengers (Id.). Sgt. Parajas approached the appellant who was seated on the second row, right side facing the driver (TSN, p. 7, March 2, 1987). He requested appellant if he could inspect the latter's belongings. A sack with the markings 14-14-14 compound fertilizer, placed on the seat beside appellant, was claimed by the latter as his. Upon inspection, the sack yielded various vegetables like string beans and carrots and underneath, wrapped in a plastic bag was marijuana (TSN, pp. 15, 17, Nov. 17, 1986).
Appellant was arrested and taken down from the bus. He was brought to the detachment in Baguio City where the interrogation continued. The arresting agents executed a joint affidavit of arrest of appellant, Exhibit "B" for the prosecution (TSN, pp. 4, 6, 7, Nov. 17, 1986).
The marijuana found in the jute sack was sent to the Laboratory at PCCL Camp Dangwa for examination. Carlos Figueroa, the chemist who examined the marijuana testified that what he examined is marijuana as indicated in his chemistry report (Exhibit "F). The jute sack contained 2.65 kilos of marijuana flowering tops (TSN, pp. 3-4, Nov. 25, 1986).
Appellant testified that, on July 29, 1986 his older Brother Fianzo "Alfonso sent him to Cabuguiansan, Natublay, (sic) Benguet to inform their other brother Fernando that their mother is seriously ill (TSN, p. 3, Feb. 4, 1987). He testified that he arrived at Cabuguiasan that same day, talked with his brother and tried to return home immediately. As there was no more ride available, he was forced to sleep at his brother's house. The following morning, he and Fernando went to the latter's employer in Pakyaw, Natublay, (sic) Benguet to borrow money for Fernando's fare. While there, they were asked to help load vegetables on the jeep. By lunchtime, Fernando was still not able to borrow money for his fare so appellant left (TSN, pp. 27, 35, Feb. 4, 1987).
At 2:00 o'clock p.m., appellant was able to get a bus for Baguio. While seated inside the bus, Augusta Banghito came, placed a sack beside appellant and told the latter to drop the sack at Km. 5 in La Trinidad, Benguet as someone will claim it (TSN, pp. 6-7, 36-38, Feb. 4, 1987).
When the bus was approaching Ambassador at Km. 16, it was flagged down by soldiers who boarded the same. The soldiers, who were Narcom Agents, inspected the passenger's baggages. The sack of appellant yielded marijuana and he was told to get down the bus and was interrogated. He was brought to the detachment in Gen. Luna Street in Baguio City, then to the Office in Trancoville and was finally committed to the provincial jail (TSN, pp. 8, 10, 12, Feb. 4, 1987).
Appellant's brother Fianzo testified that indeed, he sent appellant to Cabuguiasan to inform Fernando of their mother's illness (TSN, pp. 3-4, April 28, 1987). Fernando also testified that his brother Arsenio arrived in Cabuguiasan, Benguet on July 29, 1986 and informed him that their mother is seriously ill and that appellant slept in his house that night and on the following morning, appellant accompanied him to his employer to help load the vegetables so that they can ride in the jeep if there is space available. But after loading, there was no space left and Fernando still has to wait for his employer to be able to sell the vegetables before he can borrow money. Fernando told his brother to go ahead (TSN, pp. 2-5, May 26, 1987).
Silvester Litawen also testified that when he rode the bus in the afternoon of July 30, 1987, he saw petitioner inside the bus. While they were talking, a man carrying a bag of vegetables came over and told appellant to take the bag and leave it at Km. 15. While the bus was approaching Ambassador at Km. 21, it was stopped by soldiers who conducted an inspection of the passenger belongings. They found marijuana in the baggage of appellant who was told to get down from the bus. (TSN, pp. 3-6, March 2, 1987). (At p. 56-59, Rollo)
The evidence for the defense is built around the defendant's allegation that the sack containing marijuana belongs to Augusto Banghito. He was only requested to carry it and drop it at Km. 5 La Trinidad. Somebody would pick it up. Moreover, Banghito would be following the bus in a private vehicle.
As in all criminal cases, the issue before us is whether or not the accused is guilty of the crime charged.
The accused-appellant specifically questions the trial court's disregard for the evidence of the defense and its subsequent conclusion that the accused is indeed guilty as charged.
First, he contends that the prosecution failed to prove that the sack was owned by him.
We agree with the Solicitor General that ownership is not the basic issue here. The accused-appellant is charged with transporting marijuana which he in fact did. In his testimony, he stated that he admitted being the owner of the sack containing the marijuana when questioned by the Narcom agent in the bus (TSN, p. 7, March 2, 1987). He later denied ownership in an effort to exculpate himself. How could it be believed that he had no knowledge of the contents of the sack being in possession of it and admitting its ownership? And if it were true that he was not really the owner but that he simply accepted the errand from one who was not even a friend, the explanation, standing by itself, is too trite and hackneyed to be accepted at its face value, it being contrary to human experience. For one, it was not clear whether the person from whom he received the sack was a stranger or someone closely known to him. Or worst, he could be non-existent as he was never apprehended nor presented in evidence. In his testimony on February 4, 1983 (TSN, pp. 36-37), the appellant stated that it was the first time he saw Banghito in his brother's house and that their relationship to each other was not close. Under the circumstances, it would appear that Augusta Banghito was virtually a stranger to the appellant. The particulars under which the errand was being requested should have raised doubts about the msyterious nature of the transaction. There are several questions which come to mind and which even a man of little learning would have contemplated, to wit:
(1) Why would Banghito ask the appellant to carry the sack when he hardly knows the accused?
(2) Why was the instruction simply to leave the sack of vegetables at Km. 5 with no specific person or address to deliver it to? A market is a public place and anything of economic value might be picked up by other persons.
(3) If Banghito was following in a private vehicle, why should the former still request the accused to deliver a sack of vegetables when he could very well do it himself.?
The absence of any suspicious reaction on his part is not in accordance with human nature. And if he did not mind carrying a sack from someone he hardly knew and who was following behind in a car, it is obvious that the accused accepted the nature of the assignment from Banghito as something he was willing to do and that there was something strange about the transaction and he was aware of it.
The accused-appellant further contends that there are inconsistencies in the testimony of the prosecution witnesses. He specifically questions the prosecution witnesses' statement that that sack contained dried marijuana leaves whereas the chemical report revealed the same to be flowering tops. There is nothing questionable about the description given by the arresting officers because as stated by the Solicitor-General, "It is dried marijuana, presumably brown in color already. It is hard to distinguish by ordinary eye which part of the marijuana plant it is. By its look and smell, the agents Identified it as marijuana and mistakenly labelled it marijuana leaves when it turned out to be flowering tops upon laboratory analysis."
The appellant further questions the mark on the sack. According to the prosecution, the sack had a label which read' 14-14-14 Compound Fertilizer' whereas the sack forwarded to the laboratory for analysis was labeled 'Yongnara Chemical Co., Ltd.' Whatever portions of the writings on the sack were cited in testimonies, the fact remains that it was the same sack which contained the marijuana and that it was marked by the initials of the apprehending agent.
The questions raised by the appellant refer to mere inconsistencies on minor details. The alleged inconsistencies and improbabilities in the testimonies of the prosecution witnesses stressed by the appellant, refer to insignificant details which cannot destroy the credibility of said witnesses. Besides, the alleged discrepancies were 'fully explained. The issue involves the credibility of witnesses. Their testimony on the appellant's being caught with a sack of marijuana appears convincing. We find no reason to set aside the findings of fact of the trial court (People v. Cabale, et al., G.R. Nos. 73249-50, May 8, 1990).
The fact that the appellant boarded the bus only at Natubley, Buguias, Benguet, and not from Sagada to Baguio as indicated in the information given to the agents of the law is of no moment. What is material is that the accused was transporting marijuana.
Credence should be accorded to the prosecution's evidence. It consisted mainly of testimonies of policemen who received confidential information and acted on the basis of that information. Under the facts of this case, the law enforcers are presumed to have regularly performed their duty in the absence of proof to the contrary (People v. Dela Cruz and Beltran, G.R. No. 83260, April 18, 1990; People v. Marcos, G.R. No. 83325, May 8, 1990; People v. Laredo, et al., G.R. Nos. 81249-51, May 14, 1990). There is nothing in the records which would suggest any reason that would motivate them to testify falsely against the accused (People v. Guiagui, G.R. No. 78527, April 25, 1990; People v. Sariol, G.R. No 83809, June 22, 1989; People v. Javier, G.R. No. 77756, March 26, 1990).
In contrast, the testimonies of defense witnesses are incredible. The thrust of the defense testimony is that the accused went to Cabaguiasan to fetch his brother, Fernando because their mother is seriously ill but that the brother was unable to accompany him due to lack of fare; that while inside the bus, the accused was requested by Augusta Banghito to carry a sack of vegetables for him to La Trinidad, Benguet with instructions to leave it at Km. 5, with no particular addressee or place to whom or where it would be delivered.
We note that the defense witnesses are mostly brothers of the accused. As such, they may be expected to cover-up for the crime. While relationship between the accused and the witnesses is not necessarily detrimental, this relationship, taken together with the want of logic of the defense testimonies, yields the conclusion that it lacks credibility.
The testimony of the accused that his brother, Fernando was unable to go with him because he had no fare is contrary to the brother's testimony that he produces vegetables from his less than a hectare of land and has a regular buyer from his produce.
Considering the urgency of the need for them to go to their mother's place and the fact that it was the only reason for the appellant's going to his brother's place, they should have been able to raise the necessary fare by selling Fernando's produce to Lilia Dalmose, Ws regular buyer. Instead, they chose to go to Dionisio Copas who insisted that they first load the vegetables inside the vehicle. When there was no space available for them in the vehicle, they were instructed to meet him at the provincial restaurant at Natubleng, Cabaguiasan, Benguet where he would hand them the money they are borrowing.
It is quite puzzling that the two (2) brothers should insist on borrowing from Copas when Fernando could just sell his produce to Dalmose whose place was only a short ten minutes walk from the place of Copas. For the need to see a seriously ill mother, a son would normally do everything within his means to be able to go to her. As it is, the reason of Fernando for not going to Dalmose to sell his goods was quite flimsy — that it was far which it was not, if he was already at the address of Copas. Moreover, Fernando testified that he eventually left Buguias on July 30, 1986 and sold the vegetables for P5,000 to Dalmose on July 31, 1986 (TSN, pp. 122-123). He could have gone directly to Dalmose and gotten more than enough money for bus fares. Besides, he told his brother he would follow the next day but he later testified that he followed the same day because he was able to sell his produce to Dalmose in Betag, La Trinidad, Benguet. He likewise admitted in his testimony that he arrived at Alilem, Ilocos Sur their mother's place one week afterwards.
Silver Litawen, the other defense witness was also not credible. The arrest was made in July 1986 and he testified only in February 1987. If he really believed his friend was innocent, he could have told the soldiers sooner that the sack did not belong to Alfonso. Consequently, Litawen would have been able to extricate the appellant from the mess he had gotten himself into. When asked why he did not go to the rescue of Alfonso, he simply said they were not close neighbors, that they seldom saw each other. He likewise thought the accused had been released although he knew that Alfonso had been arrested.
For testimony to be believable, it must not only proceed from the mouth of a credible witness, but it must be credible in itself.
It is significant that the Trial Judge noted that the defense witnesses were hesitant, inconsistent, and illogical in their testimonies. We quote the trial court's observation
on the behaviour of the defense witnesses:
Not only did the Court find the defense of the accused unworthy of belief, but the Court also observed from the demeanor of the witnesses that they are untruthful. To the mind of the Court, the accused was inside the bus for no other purpose than to deliberately transport that sack containing dried marijuana leaves. (At pp. 7-8, Rollo)
WHEREFORE, premises considered, the decision of the TRIAL COURT is hereby AFFIRMED in toto.
Fernan, C.J., (Chairman), Feliciano and Bidin, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 177148 June 30, 2009
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
RAUL NUÑEZ y REVILLEZA, Appellant.
vs.
RAUL NUÑEZ y REVILLEZA, Appellant.
D E C I S I O N
QUISUMBING, J.:
This petition for certiorari seeks the reversal of the Decision1 dated January 19, 2007 of the Court of Appeals in CA G.R. CR. H.C. No. 02420. The appellate court affirmed the Decision2 dated February 11, 2002 of the Regional Trial Court (RTC) of Calamba, Laguna, Branch 36, which convicted appellant in Criminal Case No. 8614-01-C for violation of Section 16, Article III of Republic Act No. 6425, also known as the Dangerous Drugs Act of 1972, as amended by Rep. Act No. 7659.3
On June 25, 2001, Raul R. Nuñez was formally charged with violation of Section 16, Article III of Rep. Act No. 6425, as amended. The Information reads:
That at around 6:00 o’clock in the morning of the 24th day of April 20014 at Brgy. San Antonio, Municipality of Los Ba[ñ]os, Province of Laguna and within the jurisdiction of the Honorable Court, the above-named accused, without any authority of law, and in a search conducted at his residence as stated above, did then and there willfully, unlawfully and feloniously have in his possession, control and custody thirty[-]one (31) heat sealed transparent plastic sachets containing methamp[h]etamine hydrochloride otherwise known as "shabu", a regulated drug, with a total weight of 233.93 grams in violation of the aforementioned provision of law.
CONTRARY TO LAW.5
The facts are as follows:
At 6:00 a.m. on April 26, 2001, operatives of the Sta. Cruz, Laguna Police Detectives in coordination with the Los Baños Police Station (LBPS) and IID Mobile Force conducted a search in the house of Raul R. Nuñez based on reports of drug possession. The group, led by Commanding Officer Arwin Pagkalinawan, included SPO1 Odelon Ilagan, SPO3 Eduardo Paz, PO1 Ronnie Orfano, PO2 Gerry Crisostomo, PO2 Alexander Camantigue, PO2 Joseph Ortega and Senior Inspector Uriquia.
Before proceeding to appellant’s residence in Barangay San Antonio, the group summoned Barangay Captain Mario Mundin and Chief Tanod Alfredo Joaquin to assist them in serving the search warrant. Upon arriving at appellant’s house, Mundin called on appellant to come out. Thereafter, Commanding Officer Pagkalinawan showed Nuñez the warrant. SPO1 Ilagan and PO2 Crisostomo then surveyed appellant’s room in his presence while his family, PO2 Ortega and the two barangay officials remained in the living room. SPO1 Ilagan found thirty-one (31) packets of shabu, lighters, improvised burners, tooters, and aluminum foil with shabu residue and a lady’s wallet containing P4,610 inside appellant’s dresser. The group also confiscated a component, camera, electric planer, grinder, drill, jigsaw, electric tester, and assorted carpentry tools on suspicion that they were acquired in exchange for shabu. Following the search, SPO1 Ilagan issued a Receipt for Property Seized6 and a Certification of Orderly Search7 which appellant signed.
In a Decision dated February 11, 2002, the RTC convicted appellant and sentenced him as follows:
WHEREFORE, this court finds the accused guilty, beyond reasonable doubt for Violation of Republic Act 6425 as amended and is hereby sentenced to suffer the penalty of reclusion perpetua and all its accessory penalties under the law. Accused is ordered to pay the fine of two million pesos.
SO ORDERED.8
Appellant elevated the case to this Court on appeal, but the case was transferred to the Court of Appeals on May 2, 2006, pursuant to our ruling in People v. Mateo.9 On January 19, 2007, the Court of Appeals rendered its decision affirming appellant’s conviction. The appellate court dismissed appellant’s defense of frame-up and upheld the credibility of SPO1 Ilagan and PO2 Ortega. It observed that the inconsistencies in their testimony were minor at best, and did not relate to the elements of the crime.
The appellate court in its decision decreed as follows:
WHEREFORE, premises considered, the assailed Decision dated February 11, 2002 of the Regional Trial Court, Branch 36, Calamba, Laguna is hereby AFFIRMED.
From the appellate court’s decision, appellant timely filed a notice of appeal. This Court required the parties to submit supplemental briefs if they so desire. However, both the Office of the Solicitor General (OSG) and the appellant manifested that they are adopting their briefs before the appellate court.
In his brief, appellant contends that
I.
THE TRIAL COURT ERRED IN ACCORDING GREATER WEIGHT TO THE EVIDENCE ADDUCED BY THE PROSECUTION AND DISREGARDING THE DEFENSE OF FRAME-UP INTERPOSED BY [THE] ACCUSED-APPELLANT.
II.
THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE IMPUTED CRIME DESPITE THE INHERENT WEAKNESS OF THE PROSECUTION’S EVIDENCE.11
Simply, the issue is whether appellant is guilty beyond reasonable doubt of Possession of Regulated Drugs under the Dangerous Drugs Act of 1972.
Appellant insists that the shabu found in his room was planted. He points out variances in the testimonies of the prosecution witnesses which cast doubt on his culpability: first, SPO1 Ilagan testified that they picked up the barangay officials before going to appellant’s house but PO2 Ortega claimed that Chief Tanod Joaquin was already with them when they left the police station; second, while SPO1 Ilagan confirmed the presence of the accused during the search, PO2 Ortega related otherwise. More importantly, appellant assails the validity of the search warrant as it did not indicate his exact address but only the barangay and street of his residence. He maintains that none of the occupants witnessed the search as they were all kept in the living room. Finally, appellant questions why the prosecution did not call the barangay officials as witnesses to shed light on the details of the search.
Conversely, the OSG argues that appellant’s guilt has been proven beyond reasonable doubt. It agrees with the trial court that appellant failed to overcome the presumption that the law enforcement agents regularly performed their duties. Further, the OSG brands the testimonies of appellant, his wife and their child as self-serving, absent ill-motives ascribed to the search team. It brushes aside appellant’s protest, on the validity of the search warrant, for having been belatedly made.
After considering carefully the contentions of the parties and the records of this case, we are in agreement that appellant’s petition lacks merit.
Appellant was indicted for possession of regulated drugs under Section 16 of Rep. Act No. 6425 as amended which provides:
SEC. 16. Possession or Use of Regulated Drugs. – The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who shall possess or use any regulated drug without the corresponding license or prescription, subject to the provisions of Section 20 hereof.
To be liable for the crime, the following elements must concur: (a) the accused is found in possession of a regulated drug; (b) the person is not authorized by law or by duly constituted authorities; and (c) the accused has knowledge that the said drug is a regulated drug.12 All these were found present in the instant case.
While appellant interposes the defense of frame-up, we view such claim with disfavor as it can easily be fabricated and is commonly used as a facile refuge in drug cases.13 In cases involving violations of the Dangerous Drugs Act, credence is given to the narration of the incident by the prosecution witnesses especially when they are police officers who are presumed to have performed their duties in a regular manner, unless there is evidence to the contrary.14
In this case, SPO1 Ilagan found shabu in appellant’s room; but appellant retorts that it was planted. The latter’s daughter, Liezel Nuñez, testified on the alleged planting of evidence as follows:
x x x x
Q: While you were walking towards the direction of your bath room at that time have you notice anything which catches your attention?
A: I saw a man inside the room taking a plastic from his bag, sir.
Q: Did you also notice, what did that man do with that plastic in the bag?
A: He put under the bed fronting the door, sir.
x x x x
Q: Can you describe to this Honorable Court what was that something that the man took out from his bag and placed the same underneath your parents’ bed?
A: It is a plastic containing like a tawas, sir.
Q: Have you noticed Miss Witness about how many plastic bag (sic) did the man take from his bag?
A: Only one, sir.15 [Emphasis supplied.]
x x x x
Assuming arguendo that an officer placed a sachet of shabu under appellant’s bed, appellant had not advanced any reason to account for the thirty-one (31) packets of shabu and drug paraphernalia collected from the dresser in his room. Instead, he readily signed the Receipt for Property Seized and the Certification of Orderly Search. Neither did appellant’s daughter identify the police officer who allegedly planted evidence. Absent any compelling proof why SPO1 Ilagan would falsely testify against appellant, the presumption of regularity in the performance of official duty stands and we agree that his testimony is worthy of full faith and credit.16
In a further effort to impeach the credibility of the policemen, appellant questions the non-presentation of the barangay officials who purportedly observed the search. The matter of presentation of witnesses, however, is neither for accused nor even for the trial court to decide. Discretion belongs to the prosecutor as to how the State should present its case. The prosecutor has the right to choose whom he would present as witness.17 It bears stressing that by no means did the barangay officials become part of the prosecution when they were asked to witness the search. Hence, even the accused could have presented them to testify thereon.
Appellant alleges that SPO1 Ilagan verified his presence inside the room during the search in contrast to PO2 Ortega’s account. The records, however, disclose otherwise. On direct examination, PO2 Ortega recounted:
FISCAL:
Q: What did you do next?
WITNESS:
A: Capt. Mundin together with Raul and then the three of us went to the room of Raul Nuñez, sir.
x x x x
Q: So, among the group that went to the room of Raul Nuñez who went inside?
A: It was Raul Nuñez, Sgt. Ilagan, Crisostomo who are inside the room. I stayed near the door along with Brgy. Capt. Mundin and Chief Tanod who were looking at what was going on, sir.18 [Emphasis supplied.]
On cross-examination, PO2 Ortega did not falter:
x x x x
Q: Who among you went inside the room of Raul Nuñez?
A: Sgt. Ilagan, Crisostomo, Raul Nuñez, myself, Chief Tanod Alfredo and Capt. Mundin, sir.19 [Emphasis supplied.]
Besides, any objection to the legality of the search warrant and the admissibility of the evidence obtained thereby was deemed waived when no objection was raised by appellant during trial. For sure, the right to be secure from unreasonable searches and seizures, like any other right, can be waived and the waiver may be made expressly or impliedly.20
As regards the contradiction in the testimonies of SPO1 Ilagan and PO2 Ortega as to whether they picked up Chief Tanod Joaquin at the barangay hall, the same is inconsequential. After all, the witnesses’ testimonies need only corroborate one another on material details surrounding the actual commission of the crime.21
Here, we find the testimonies of SPO1 Ilagan and PO2 Ortega believable and consistent on material points: appellant was shown the search warrant; the search was conducted in the latter’s presence; and SPO1 Ilagan found shabu in appellant’s dresser. It has been ruled that an affirmative testimony coming from credible witnesses without motive to perjure is far stronger than a negative testimony. Records show that appellant and the police officers were strangers to each other. Hence, there is no reason to suggest that the police officers were ill-motivated in apprehending appellant.22
Turning to the objects which may be confiscated during the search, Section 3, Rule 126 of the Rules of Court is pertinent:
SEC. 3. Personal property to be seized. – A search warrant may be issued for the search and seizure of personal property:
(a) Subject of the offense;
(b) Stolen or embezzled and other proceeds, or fruits of the offense; or
(c) Used or intended to be used as the means of committing an offense.
As a rule, only the personal properties described in the search warrant may be seized by the authorities.23 In the case at bar, Search Warrant No. 4224 specifically authorized the taking of methamphetamine hydrochloride (shabu) and paraphernalia(s) only. By the principle of ejusdem generis, where a statute describes things of a particular class or kind accompanied by words of a generic character, the generic word will usually be limited to things of a similar nature with those particularly enumerated, unless there be something in the context of the statement which would repel such inference.25
Thus, we are here constrained to point out an irregularity in the search conducted. Certainly, the lady’s wallet, cash, grinder, camera, component, speakers, electric planer, jigsaw, electric tester, saws, hammer, drill, and bolo were not encompassed by the word paraphernalia as they bear no relation to the use or manufacture of drugs. In seizing the said items then, the police officers exercised their own discretion and determined for themselves which items in appellant’s residence they believed were "proceeds of the crime" or "means of committing the offense." This is, in our view, absolutely impermissible.26
The purpose of the constitutional requirement that the articles to be seized be particularly described in the warrant is to limit the things to be taken to those, and only those particularly described in the search warrant -- to leave the officers of the law with no discretion regarding what articles they should seize. A search warrant is not a sweeping authority empowering a raiding party to undertake a fishing expedition to confiscate any and all kinds of evidence or articles relating to a crime.27 Accordingly, the objects taken which were not specified in the search warrant should be restored to appellant.1avvphi1
Lastly, we find the penalty imposed by the trial court as affirmed by the appellate court proper. Under Section 20(3)28 of Rep. Act No. 6425 as amended by Rep. Act No. 7659, possession of 200 grams or more of shabu (methamphetamine hydrochloride) renders the accused liable to suffer the maximum penalty under Section 16 of Rep. Act No. 6425, which is reclusion perpetua to death and a fine ranging from P500,000 to P10,000,000.
In the case at bar, appellant was found in possession of 233.93 grams of shabu. Hence there being no modifying circumstance proven, the penalty of reclusion perpetua with its accessory penalties, and P2,000,000 fine which the Court of Appeals meted on appellant is in order.
WHEREFORE, the Decision dated January 19, 2007 of the Court of Appeals in CA G.R. CR. H.C. No. 02420 is AFFIRMED, with the MODIFICATION that the official custodian of the objects taken during the search which are not otherwise regulated drugs or drug paraphernalia, is ORDERED to return them to appellant.
SO ORDERED.
LEONARDO A. QUISUMBING
Associate Justice
Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO*
Associate Justice
Associate Justice
| MINITA V. CHICO-NAZARIO** Associate Justice | TERESITA J. LEONARDO-DE CASTRO*** Associate Justice |
ARTURO D. BRION
Associate Justice
Associate Justice
A T T E S T A T I O N
I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
Associate Justice
Chairperson
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice
Chief Justice
Republic of the Philippines
SUPREME COURT
Manila
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 177148 June 30, 2009
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
RAUL NUÑEZ y REVILLEZA, Appellant.
vs.
RAUL NUÑEZ y REVILLEZA, Appellant.
D E C I S I O N
QUISUMBING, J.:
This petition for certiorari seeks the reversal of the Decision1 dated January 19, 2007 of the Court of Appeals in CA G.R. CR. H.C. No. 02420. The appellate court affirmed the Decision2 dated February 11, 2002 of the Regional Trial Court (RTC) of Calamba, Laguna, Branch 36, which convicted appellant in Criminal Case No. 8614-01-C for violation of Section 16, Article III of Republic Act No. 6425, also known as the Dangerous Drugs Act of 1972, as amended by Rep. Act No. 7659.3
On June 25, 2001, Raul R. Nuñez was formally charged with violation of Section 16, Article III of Rep. Act No. 6425, as amended. The Information reads:
That at around 6:00 o’clock in the morning of the 24th day of April 20014 at Brgy. San Antonio, Municipality of Los Ba[ñ]os, Province of Laguna and within the jurisdiction of the Honorable Court, the above-named accused, without any authority of law, and in a search conducted at his residence as stated above, did then and there willfully, unlawfully and feloniously have in his possession, control and custody thirty[-]one (31) heat sealed transparent plastic sachets containing methamp[h]etamine hydrochloride otherwise known as "shabu", a regulated drug, with a total weight of 233.93 grams in violation of the aforementioned provision of law.
CONTRARY TO LAW.5
The facts are as follows:
At 6:00 a.m. on April 26, 2001, operatives of the Sta. Cruz, Laguna Police Detectives in coordination with the Los Baños Police Station (LBPS) and IID Mobile Force conducted a search in the house of Raul R. Nuñez based on reports of drug possession. The group, led by Commanding Officer Arwin Pagkalinawan, included SPO1 Odelon Ilagan, SPO3 Eduardo Paz, PO1 Ronnie Orfano, PO2 Gerry Crisostomo, PO2 Alexander Camantigue, PO2 Joseph Ortega and Senior Inspector Uriquia.
Before proceeding to appellant’s residence in Barangay San Antonio, the group summoned Barangay Captain Mario Mundin and Chief Tanod Alfredo Joaquin to assist them in serving the search warrant. Upon arriving at appellant’s house, Mundin called on appellant to come out. Thereafter, Commanding Officer Pagkalinawan showed Nuñez the warrant. SPO1 Ilagan and PO2 Crisostomo then surveyed appellant’s room in his presence while his family, PO2 Ortega and the two barangay officials remained in the living room. SPO1 Ilagan found thirty-one (31) packets of shabu, lighters, improvised burners, tooters, and aluminum foil with shabu residue and a lady’s wallet containing P4,610 inside appellant’s dresser. The group also confiscated a component, camera, electric planer, grinder, drill, jigsaw, electric tester, and assorted carpentry tools on suspicion that they were acquired in exchange for shabu. Following the search, SPO1 Ilagan issued a Receipt for Property Seized6 and a Certification of Orderly Search7 which appellant signed.
In a Decision dated February 11, 2002, the RTC convicted appellant and sentenced him as follows:
WHEREFORE, this court finds the accused guilty, beyond reasonable doubt for Violation of Republic Act 6425 as amended and is hereby sentenced to suffer the penalty of reclusion perpetua and all its accessory penalties under the law. Accused is ordered to pay the fine of two million pesos.
SO ORDERED.8
Appellant elevated the case to this Court on appeal, but the case was transferred to the Court of Appeals on May 2, 2006, pursuant to our ruling in People v. Mateo.9 On January 19, 2007, the Court of Appeals rendered its decision affirming appellant’s conviction. The appellate court dismissed appellant’s defense of frame-up and upheld the credibility of SPO1 Ilagan and PO2 Ortega. It observed that the inconsistencies in their testimony were minor at best, and did not relate to the elements of the crime.
The appellate court in its decision decreed as follows:
WHEREFORE, premises considered, the assailed Decision dated February 11, 2002 of the Regional Trial Court, Branch 36, Calamba, Laguna is hereby AFFIRMED.
SO ORDERED.10
From the appellate court’s decision, appellant timely filed a notice of appeal. This Court required the parties to submit supplemental briefs if they so desire. However, both the Office of the Solicitor General (OSG) and the appellant manifested that they are adopting their briefs before the appellate court.
In his brief, appellant contends that
I.
THE TRIAL COURT ERRED IN ACCORDING GREATER WEIGHT TO THE EVIDENCE ADDUCED BY THE PROSECUTION AND DISREGARDING THE DEFENSE OF FRAME-UP INTERPOSED BY [THE] ACCUSED-APPELLANT.
II.
THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE IMPUTED CRIME DESPITE THE INHERENT WEAKNESS OF THE PROSECUTION’S EVIDENCE.11
Simply, the issue is whether appellant is guilty beyond reasonable doubt of Possession of Regulated Drugs under the Dangerous Drugs Act of 1972.
Appellant insists that the shabu found in his room was planted. He points out variances in the testimonies of the prosecution witnesses which cast doubt on his culpability: first, SPO1 Ilagan testified that they picked up the barangay officials before going to appellant’s house but PO2 Ortega claimed that Chief Tanod Joaquin was already with them when they left the police station; second, while SPO1 Ilagan confirmed the presence of the accused during the search, PO2 Ortega related otherwise. More importantly, appellant assails the validity of the search warrant as it did not indicate his exact address but only the barangay and street of his residence. He maintains that none of the occupants witnessed the search as they were all kept in the living room. Finally, appellant questions why the prosecution did not call the barangay officials as witnesses to shed light on the details of the search.
Conversely, the OSG argues that appellant’s guilt has been proven beyond reasonable doubt. It agrees with the trial court that appellant failed to overcome the presumption that the law enforcement agents regularly performed their duties. Further, the OSG brands the testimonies of appellant, his wife and their child as self-serving, absent ill-motives ascribed to the search team. It brushes aside appellant’s protest, on the validity of the search warrant, for having been belatedly made.
After considering carefully the contentions of the parties and the records of this case, we are in agreement that appellant’s petition lacks merit.
Appellant was indicted for possession of regulated drugs under Section 16 of Rep. Act No. 6425 as amended which provides:
SEC. 16. Possession or Use of Regulated Drugs. – The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who shall possess or use any regulated drug without the corresponding license or prescription, subject to the provisions of Section 20 hereof.
To be liable for the crime, the following elements must concur: (a) the accused is found in possession of a regulated drug; (b) the person is not authorized by law or by duly constituted authorities; and (c) the accused has knowledge that the said drug is a regulated drug.12 All these were found present in the instant case.
While appellant interposes the defense of frame-up, we view such claim with disfavor as it can easily be fabricated and is commonly used as a facile refuge in drug cases.13 In cases involving violations of the Dangerous Drugs Act, credence is given to the narration of the incident by the prosecution witnesses especially when they are police officers who are presumed to have performed their duties in a regular manner, unless there is evidence to the contrary.14
In this case, SPO1 Ilagan found shabu in appellant’s room; but appellant retorts that it was planted. The latter’s daughter, Liezel Nuñez, testified on the alleged planting of evidence as follows:
x x x x
Q: While you were walking towards the direction of your bath room at that time have you notice anything which catches your attention?
A: I saw a man inside the room taking a plastic from his bag, sir.
Q: Did you also notice, what did that man do with that plastic in the bag?
A: He put under the bed fronting the door, sir.
x x x x
Q: Can you describe to this Honorable Court what was that something that the man took out from his bag and placed the same underneath your parents’ bed?
A: It is a plastic containing like a tawas, sir.
Q: Have you noticed Miss Witness about how many plastic bag (sic) did the man take from his bag?
A: Only one, sir.15 [Emphasis supplied.]
x x x x
Assuming arguendo that an officer placed a sachet of shabu under appellant’s bed, appellant had not advanced any reason to account for the thirty-one (31) packets of shabu and drug paraphernalia collected from the dresser in his room. Instead, he readily signed the Receipt for Property Seized and the Certification of Orderly Search. Neither did appellant’s daughter identify the police officer who allegedly planted evidence. Absent any compelling proof why SPO1 Ilagan would falsely testify against appellant, the presumption of regularity in the performance of official duty stands and we agree that his testimony is worthy of full faith and credit.16
In a further effort to impeach the credibility of the policemen, appellant questions the non-presentation of the barangay officials who purportedly observed the search. The matter of presentation of witnesses, however, is neither for accused nor even for the trial court to decide. Discretion belongs to the prosecutor as to how the State should present its case. The prosecutor has the right to choose whom he would present as witness.17 It bears stressing that by no means did the barangay officials become part of the prosecution when they were asked to witness the search. Hence, even the accused could have presented them to testify thereon.
Appellant alleges that SPO1 Ilagan verified his presence inside the room during the search in contrast to PO2 Ortega’s account. The records, however, disclose otherwise. On direct examination, PO2 Ortega recounted:
FISCAL:
Q: What did you do next?
WITNESS:
A: Capt. Mundin together with Raul and then the three of us went to the room of Raul Nuñez, sir.
x x x x
Q: So, among the group that went to the room of Raul Nuñez who went inside?
A: It was Raul Nuñez, Sgt. Ilagan, Crisostomo who are inside the room. I stayed near the door along with Brgy. Capt. Mundin and Chief Tanod who were looking at what was going on, sir.18 [Emphasis supplied.]
On cross-examination, PO2 Ortega did not falter:
x x x x
Q: Who among you went inside the room of Raul Nuñez?
A: Sgt. Ilagan, Crisostomo, Raul Nuñez, myself, Chief Tanod Alfredo and Capt. Mundin, sir.19 [Emphasis supplied.]
Besides, any objection to the legality of the search warrant and the admissibility of the evidence obtained thereby was deemed waived when no objection was raised by appellant during trial. For sure, the right to be secure from unreasonable searches and seizures, like any other right, can be waived and the waiver may be made expressly or impliedly.20
As regards the contradiction in the testimonies of SPO1 Ilagan and PO2 Ortega as to whether they picked up Chief Tanod Joaquin at the barangay hall, the same is inconsequential. After all, the witnesses’ testimonies need only corroborate one another on material details surrounding the actual commission of the crime.21
Here, we find the testimonies of SPO1 Ilagan and PO2 Ortega believable and consistent on material points: appellant was shown the search warrant; the search was conducted in the latter’s presence; and SPO1 Ilagan found shabu in appellant’s dresser. It has been ruled that an affirmative testimony coming from credible witnesses without motive to perjure is far stronger than a negative testimony. Records show that appellant and the police officers were strangers to each other. Hence, there is no reason to suggest that the police officers were ill-motivated in apprehending appellant.22
Turning to the objects which may be confiscated during the search, Section 3, Rule 126 of the Rules of Court is pertinent:
SEC. 3. Personal property to be seized. – A search warrant may be issued for the search and seizure of personal property:
(a) Subject of the offense;
(b) Stolen or embezzled and other proceeds, or fruits of the offense; or
(c) Used or intended to be used as the means of committing an offense.
As a rule, only the personal properties described in the search warrant may be seized by the authorities.23 In the case at bar, Search Warrant No. 4224 specifically authorized the taking of methamphetamine hydrochloride (shabu) and paraphernalia(s) only. By the principle of ejusdem generis, where a statute describes things of a particular class or kind accompanied by words of a generic character, the generic word will usually be limited to things of a similar nature with those particularly enumerated, unless there be something in the context of the statement which would repel such inference.25
Thus, we are here constrained to point out an irregularity in the search conducted. Certainly, the lady’s wallet, cash, grinder, camera, component, speakers, electric planer, jigsaw, electric tester, saws, hammer, drill, and bolo were not encompassed by the word paraphernalia as they bear no relation to the use or manufacture of drugs. In seizing the said items then, the police officers exercised their own discretion and determined for themselves which items in appellant’s residence they believed were "proceeds of the crime" or "means of committing the offense." This is, in our view, absolutely impermissible.26
The purpose of the constitutional requirement that the articles to be seized be particularly described in the warrant is to limit the things to be taken to those, and only those particularly described in the search warrant -- to leave the officers of the law with no discretion regarding what articles they should seize. A search warrant is not a sweeping authority empowering a raiding party to undertake a fishing expedition to confiscate any and all kinds of evidence or articles relating to a crime.27 Accordingly, the objects taken which were not specified in the search warrant should be restored to appellant.1avvphi1
Lastly, we find the penalty imposed by the trial court as affirmed by the appellate court proper. Under Section 20(3)28 of Rep. Act No. 6425 as amended by Rep. Act No. 7659, possession of 200 grams or more of shabu (methamphetamine hydrochloride) renders the accused liable to suffer the maximum penalty under Section 16 of Rep. Act No. 6425, which is reclusion perpetua to death and a fine ranging from P500,000 to P10,000,000.
In the case at bar, appellant was found in possession of 233.93 grams of shabu. Hence there being no modifying circumstance proven, the penalty of reclusion perpetua with its accessory penalties, and P2,000,000 fine which the Court of Appeals meted on appellant is in order.
WHEREFORE, the Decision dated January 19, 2007 of the Court of Appeals in CA G.R. CR. H.C. No. 02420 is AFFIRMED, with the MODIFICATION that the official custodian of the objects taken during the search which are not otherwise regulated drugs or drug paraphernalia, is ORDERED to return them to appellant.
SO ORDERED.
LEONARDO A. QUISUMBING
Associate Justice
Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO*
Associate Justice
Associate Justice
| MINITA V. CHICO-NAZARIO** Associate Justice | TERESITA J. LEONARDO-DE CASTRO*** Associate Justice |
ARTURO D. BRION
Associate Justice
Associate Justice
A T T E S T A T I O N
I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
Associate Justice
Chairperson
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice
Chief Justice
FIRST DIVISION
[G.R. No. 147607. January 22, 2004]
PEOPLE OF THE PHILIPPINES, appellee, vs. BENHUR MAMARIL, appellant.
D E C I S I O N
AZCUNA, J.:
Before us is a petition for review on certiorari of the decision of the Regional Trial Court of Lingayen, Pangasinan, Branch 39, in Criminal Case No. L-5963, finding appellant Benhur Mamaril guilty beyond reasonable doubt of violation of Section 8[1][1] of Republic Act (RA) No. 6425, as amended by RA No. 7659.
The Information filed against appellant reads:
That on or about the 1st day of February, 1999 and sometime prior thereto, in the municipality of Lingayen, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, willfully, unlawfully and criminally [did] keep and possess crushed marijuana leaves contained in seventy eight (78) sachets with a total weight of two hundred thirty six and eighty three hundredth (236.83) grams and two (2) bricks of marijuana fruiting tops weighing one thousand six hundred grams, each brick weighing eight hundred (800) grams, with a total weight of one thousand eight hundred thirty six and eighty three hundredth (1,836.83) grams, a prohibited drug, without authority to possess the same.
CONTRARY to Sec. 8 of R.A. 6425, as amended by R.A. 7659, otherwise known as the Dangerous Drugs Act of 1972.[2][2]
When arraigned on October 8, 1999, appellant pleaded not guilty.[3][3] At the pre-trial conference held on October 18, 1999, the parties admitted the following facts:
1. That the search was made in the house and premises of the parents of the accused where he (accused) also lives, at Ramos St., Lingayen, Pangasinan, on February 1, 1999 at about 2:30 o’ clock in the afternoon;
2. That the search was conducted by the elements of the PNP particularly SPO4 Faustino Ferrer, SPO1 Alfredo Rico and others;
3. That the policemen brought along with them a camera;
4. That the accused was in the balcony of the house when it was searched;
5. The existence of the report of physical science report No. (DT-077-99) issued by the PNP Crime Laboratory through Chemist Theresa Ann Bugayong Cid;
6. That accused was subjected to urine sample laboratory on February 2, 1999.[4][4]
Thereafter, trial ensued.
The Prosecution’s Evidence
On January 25, 1999, the Intelligence Section PNCO of the Lingayen Police Station, represented by SPO2 Chito S. Esmenda, applied[5][5] before the Regional Trial Court of Lingayen, Pangasinan, Branch 39, for a search warrant authorizing the search for marijuana, a prohibited drug, at the family residence of appellant Benhur Mamaril, situated at Ramos Street, Poblacion, Lingayen, Pangasinan. On said date, then presiding Executive Judge Eugenio G. Ramos (now retired) issued Search Warrant No. 99-51.[6][6]
On February 1, 1999, at about 2:30 p.m., the Chief of Police of the Lingayen Police Station, SPO3 Alfredo Rico, SPO4 Faustino Ferrer, Jr. and other police officers went to the residence of appellant and implemented Search Warrant No. 99-51. When they arrived at appellant’s house, they saw appellant’s mother under the house. They asked her where appellant was, and she told them that appellant was in the house, upstairs. When they went upstairs, they saw appellant coming out of the room. Upon seeing the policemen, appellant turned back and tried to run towards the back door. SPO3 Rico told appellant to stop, which appellant did. SPO3 Rico informed appellant that they had a search warrant to search the house premises. They showed appellant and his mother the search warrant. Appellant looked at the search warrant and did not say anything. Thereafter, the policemen searched the house. The search was witnessed by two members of the barangay council in said area, namely, Barangay Kagawad Leonardo Ramos and Barangay Tanod Valentino Quintos, whom the police brought with them.[7][7]
The searching team confiscated the following: (1) fifty-five (55) heat-sealed plastic sachets containing suspected marijuana leaves, which were found in a buri bag (“bayong”) under appellant’s house; (2) three heat-sealed plastic sachets containing suspected marijuana leaves and seeds contained in an eye-glass case; (3) twenty-two (22) heat-sealed plastic sachets containing suspected marijuana leaves and seeds taken under a pillow placed on a monobloc chair; and (4) two (2) bricks of suspected marijuana contained inside a white and gray bag found inside the closet of appellant’s room. SPO3 Alfredo Rico took pictures[8][8] of the confiscated items and prepared a receipt[9][9] of the property seized. SPO4 Faustino Ferrer, Jr. prepared a certification[10][10] that the house was properly searched, which was signed by appellant and the barangay officials who witnessed the search. After the search, the police officers brought appellant and the confiscated articles to the Lingayen Police Station and turned them over to the desk officer.[11][11]
The next day, on February 2, 1999, police officers Alfredo Rico, Alberto Santiago and Rodolfo Madrid brought the confiscated articles to the Crime Laboratory at Camp Florendo, San Fernando, La Union for examination. Appellant was also brought there for a drug test.[12][12]
Police Superintendent Ma. Theresa Ann Bugayong Cid, forensic chemist and head of the PNP Crime Laboratory, Regional Office I, Camp Florendo, Parian, San Fernando City, La Union, testified that on February 2, 1999, she received from the Chief of Police of Lingayen, Pangasinan, a request[13][13] for a drug test on the person of appellant Benhur Mamaril and a laboratory examination of the confiscated specimens.[14][14] After weighing the specimens and testing the same, Police Superintendent Cid issued a report[15][15] finding the specimens[16][16] to be “POSITIVE to the test for the presence of marijuana x x x.”[17][17]
Moreover, Police Superintendent Cid affirmed the findings in her report[18][18] that the examination conducted on the urine sample of appellant was positive for the presence of methamphetamine hydrochloride known as “shabu.”[19][19]
After the prosecution formally offered its testimonial and documentary exhibits on March 5, 2000, appellant, through his counsel, filed a motion with memorandum[20][20] contending that: (1) the exhibits of the prosecution are inadmissible in evidence under Section 2 and Section 3 (2) of Article III (Bill of Rights) of the 1987 Constitution as the search warrant, by virtue of which said exhibits were seized, was illegally issued, considering that the judge’s examination of the complainant and his two witnesses was not in writing; and (2) said search warrant was illegally or improperly implemented. Appellant prayed that all the exhibits of the prosecution be excluded as evidence or in the alternative, that the resolution of the admissibility of the same be deferred until such time that he has completed the presentation of his evidence in chief. On August 25, 2000, the prosecution opposed the motion, and the trial court denied appellant’s motion.[21][21]
The Defense’s Evidence
Appellant Benhur Mamaril, 31, single, laborer, denied that he was residing at his parents’ house at Ramos Street, Lingayen, Pangasinan since he has been residing at a rented house at Barangay Matic-matic, Sta. Barabara, Pangasinan since December 18, 1998. Appellant declared that on February 1, 1999, it was his brother and the latter’s family who were residing with his mother at Ramos Street, but on said day, his brother and family were not in the house since they were at the fishpond.[22][22]
Appellant testified that on February 1, 1999, he was at his parents’ house at Ramos Street, Lingayen, Pangasinan, because he and his live-in partner visited his mother on said day and arrived there at 10:00 a.m. At about 2:00 p.m. of February 1, 1999, while appellant was at the back of his parents’ house, about seven to nine policemen, in civilian clothes, arrived. The policemen asked appellant to go upstairs and they immediately handcuffed him and brought him to the balcony of the house. He stayed at the balcony until the search was finished after more than 30 minutes. Thereafter, he was brought to the clinic of one Dr. Felix and a medical examination was conducted on him. Then he was brought to the municipal hall.[23][23]
Appellant testified that he saw the buri bag, the eye-glass case, and the gray and white bag containing suspected marijuana for the first time on the day of the search when he was at the balcony of their house. He also testified that he saw the Receipt of Property Seized for the first time while he was testifying in court. He admitted that the signature on the certification that the house was properly searched was his.[24][24]
Moreover, appellant testified that in the early morning of February 2, 1999, he was brought to the PNP Crime Laboratory in San Fernando, La Union where he gave his urine sample. Appellant insinuated that the confiscated items were only planted because he had a misunderstanding with some policemen in Lingayen. However, he admitted that the policemen who searched his parents’ house did not threaten or harm him in any way and he had no misunderstanding with SPO3 Alfredo Rico.[25][25]
Atty. Enrico O. Castillo, Branch Clerk of Court, RTC-Branch 39, Lingayen, Pangasinan, was requested to testify on the available records regarding Search Warrant No. 99-51 on file in the trial court and to identify said documents. Atty. Castillo testified that he only had with him the application for search warrant, the supporting affidavits of PO3 Alberto Santiago and Diosdado Fernandez and the return of the search warrant.[26][26]
Atty. Enrico declared that before he assumed office as Branch Clerk of Court, the person supposed to be in custody of any transcript of the searching questions and answers made by Executive Judge Eugenio G. Ramos in connection with the application for Search Warrant No. 99-51 was Mrs. Liberata Ariston, who was then a legal researcher and at the same time OIC-Branch Clerk of Court. However, during the trial of this case, Mrs. Liberata Ariston was in the United States of America. Atty. Enrico averred that he asked Mrs. Liberata Ariston’s daughter, Catherine Ramirez, who is a court stenographer, about said transcript, but it has not been found. Atty. Enrico testified that based on the records, there is no stenographic notes. He added that they tried their best to locate the subject transcript, but they could not find it.[27][27]
The Trial Court’s Decision
On January 23, 2001, the trial court rendered a decision, the dispositive portion of which reads:
WHEREFORE, the prosecution having established beyond reasonable doubt the guilt of the accused of the crime of possession of marijuana defined and penalized under Section 8 of RA 6425, as amended, this Court in the absence of any modifying circumstances, hereby sentences said accused to suffer the penalty of RECLUSION PERPETUA and to pay a fine of Five Hundred Thousand Pesos (P500,000), plus costs of this suit.
The period of preventive imprisonment suffered by the accused shall be credited in full in service of his sentence in accordance with Article 29 of the Revised Penal Code.
SO ORDERED.[28][28]
The Appeal
Appellant contends that the trial court made the following errors:
I
THE TRIAL COURT ERRED IN NOT DECLARING AS INADMISSIBLE IN EVIDENCE THE ARTICLES ALLEGEDLY SEIZED FROM ACCUSED-APPELLANT CONSIDERING THAT SEARCH WARRANT NO. 99-51 WAS ILLEGALLY ISSUED.
II
THE TRIAL COURT LIKEWISE ERRED IN NOT DECLARING AS TOTALLY INADMISSIBLE THE INVENTORIED ARTICLES IN THE RECEIPT OF SEIZED PROPERTY AND THE CORRESPONDING CERTIFICATION ISSUED THERETO (EXHS. “J” AND “I”) SINCE THE ACCUSED-APPELLANT WAS NOT ASSISTED BY COUNSEL WHEN HE SIGNED THE SAME.
III
THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME CHARGED DESPITE THE FACT THAT HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.[29][29]
Appellant prays for his acquittal on the ground that Search Warrant No. 99-51 was illegally issued considering that there was no evidence showing that the required searching questions and answers were made anent the application for said search warrant. Appellant pointed out that Branch Clerk of Court Enrico O. Castillo testified that based on the records, there was no transcript of stenographic notes of the proceedings in connection with the application for said search warrant. Appellant thus asserts that it cannot be said that the judge made searching questions upon the alleged applicant and his witnesses, which is in violation of Section 2, Article III of the Constitution and Section 5, Rule 126 of the Rules of Court.
Our Ruling
Appellant’s contention is meritorious.
The right against unreasonable searches and seizures is guaranteed under Article III, Section 2, of the Constitution, thus:
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.
Said Constitutional provision is implemented under Rule 126 of the Rules of Court, thus:
Sec. 4. Requisites for issuing search warrant. – A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.
Sec. 5. Examination of complainant; record. -- The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted.
Under the above provisions, the issuance of a search warrant is justified only upon a finding of probable cause. Probable cause for a search has been defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched.[30][30] In determining the existence of probable cause, it is required that: (1) the judge must examine the complainant and his witnesses personally; (2) the examination must be under oath; and (3) the examination must be reduced in writing in the form of searching questions and answers.[31][31]
Atty. Enrico O. Castillo, Branch Clerk of Court, RTC-Branch 39 of Lingayen, Pangasinan, who was requested to testify on the available records kept in their office regarding Search Warrant No. 99-51, presented before the court only the application for search warrant[32][32] and the supporting affidavits[33][33] of PO3 Alberto Santiago and Diosdado Fernandez. Atty. Castillo could not produce the sworn statements of the complainant and his witnesses showing that the judge examined them in the form of searching questions and answers in writing as required by law. Atty. Castillo testified, thus:
xxx xxx xxx
Q Would you admit that from the records available there is no transcript of the proceedings of a searching questions and answers made by the Executive Judge upon the complainant as well as the two (2) witnesses not only in connection with application for Search Warrant 99-51 but in all of those application covered by that record namely, 99-49, 99-50, 99-51, 99-52, 99-53 and 99-54?
A Sir, based on the records there is no transcript of [s]tenographic notes.
Q Did you not ask Catherine Ramirez, the daughter of then OIC-Mrs. Liberata Ariston about said transcript?
A I asked her for several times, sir, and in fact I asked her again yesterday and she told me that she will try to find on (sic) the said transcript.
Q But until now there is no transcript yet?
A Yes, sir.
Q Because according to the rules the transcript must be attached to the records of this case together with the application for search warrant as well as the supporting affidavit of the said application, but there is no records available to have it with you and there is no proof with you?
A Because during the time I assumed the office, sir, the records in the store room which they placed is topsy turvy and all the records are scattered. So, we are having a hard time in scanning the records, sir.
Q But did you not try your very best assisted by the Court personnel to locate said transcript, Mr. Witness?
A Sir, we tried our best but based on the transcript I can not just read the said transcript.
Q You mean to say you were able to [find] the stenographic notes?
A No, sir. There are stenographic notes but they are not yet transcribed, sir.
Q That is by a machine steno?
A Yes, sir.
Q Did you not ask the assistance of the co-stenographers in your sala who are using the machine steno to identify what cases does that stenographic notes (sic)?
A Sir, I was assisted by some stenographers but we can (sic) not find the transcript of stenographic notes concerning Search Warrant No. 99-49 to 99-54.[34][34] (Underscoring ours)
Based on the above testimony and the other evidence on record, the prosecution failed to prove that Executive Judge Eugenio G. Ramos put into writing his examination of the applicant and his witnesses in the form of searching questions and answers before issuance of the search warrant. The records only show the existence of an application[35][35] for a search warrant and the affidavits[36][36] of the complainant’s witnesses. In Mata v. Bayona,[37][37] we held:
Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take depositions in writing of the complainant and the witnesses he may produce and to attach them to the record. Such written deposition is necessary in order that the Judge may be able to properly determine the existence or non-existence of the probable cause, to hold liable for perjury the person giving it if it will be found later that his declarations are false.
We, therefore, hold that the search warrant is tainted with illegality by the failure of the Judge to conform with the essential requisites of taking the depositions in writing and attaching them to the record, rendering the search warrant invalid.
We cannot give credit to the argument of the Solicitor General that the issuing judge examined under oath, in the form of searching questions and answers, the applicant SPO2 Chito S. Esmenda and his witnesses on January 25, 1999 as it is so stated in Search Warrant No. 99-51. Although it is possible that Judge Ramos examined the complainant and his witnesses in the form of searching questions and answers, the fact remains that there is no evidence that the examination was put into writing as required by law. Otherwise, the depositions in writing of the complainant and his witnesses would have been attached to the record, together with the affidavits that the witnesses submitted, as required by Section 5, Rule 126 of the Rules of Court. Consequently, we find untenable the assertion of the Solicitor General that the subject stenographic notes could not be found at the time Branch Clerk of Court Enrico Castillo testified before the trial court because of the confused state of the records in the latter’s branch when he assumed office.
The Solicitor General also argues that appellant is deemed to have waived his right to question the legality of the search because he did not protest against it, and even admitted during his testimony that he was neither threatened nor maltreated by the policemen who searched their residence.
We disagree. The cases[38][38] cited by the Solicitor General involved a warrantless search. In this case, the police authorities presented a search warrant to appellant before his residence was searched. At that time, appellant could not determine if the search warrant was issued in accordance with the law. It was only during the trial of this case that appellant, through his counsel, had reason to believe that the search warrant was illegally issued causing appellant to file a motion with memorandum objecting to the admissibility of the evidence formally offered by the prosecution. In People v. Burgos,[39][39] we ruled:
Neither can it be presumed that there was a waiver, or that consent was given by the accused to be searched simply because he failed to object. To constitute a waiver, it must appear first that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such a right; and lastly, that said person had an actual intention to relinquish the right. (Pasion Vda. de Garcia v. Locsin, 65 Phil. 689). The fact that the accused failed to object to the entry into his house does not amount to a permission to make a search therein (Magoncia v. Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. de Garcia v. Locsin (supra):
x x x x x x x x x
“x x x As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer’s authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent, or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. (56 C.J., pp.1180, 1181).”
We apply the rule that: “courts indulge every reasonable presumption against waiver of fundamental constitutional rights and that we do not presume acquiescence in the loss of fundamental rights.” (Johnson v. Zerbst, 304 U.S. 458).
In this case, we construe the silence of appellant at the time the policemen showed him the search warrant as a demonstration of regard for the supremacy of the law. Moreover, appellant seasonably objected[40][40] on constitutional grounds to the admissibility of the evidence seized pursuant to said warrant during the trial of the case,[41][41] after the prosecution formally offered its evidence.[42][42] Under the circumstances, no intent to waive his rights can reasonably be inferred from his conduct before or during the trial.
No matter how incriminating the articles taken from the appellant may be, their seizure cannot validate an invalid warrant.[43][43] In Mata v. Bayona,[44][44] we ruled:
….[N]othing can justify the issuance of the search warrant but the fulfillment of the legal requisites. It might be well to point out what has been said in Asian Surety & Insurance Co., Inc. vs. Herrera:
‘It has been said that of all the rights of a citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves the exemption of his private affairs, books and papers from inspection and scrutiny of others. While the power to search and seize is necessary to the public welfare, still it must be exercised and the law enforced without transgressing the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government.’
Thus, in issuing a search warrant the Judge must strictly comply with the requirements of the Constitution and the statutory provisions. A liberal construction should be given in favor of the individual to prevent stealthy encroachment upon, or gradual depreciation of the rights secured by the Constitution. No presumption of regularity are to be invoked in aid of the process when an officer undertakes to justify it.
We, therefore, find that the requirement mandated by the law that the examination of the complainant and his witnesses must be under oath and reduced to writing in the form of searching questions and answers was not complied with, rendering the search warrant invalid. Consequently, the evidence seized pursuant to said illegal search warrant cannot be used in evidence against appellant in accordance with Section 3 (2),[45][45] Article III of the Constitution.
It is unnecessary to discuss the other issues raised by appellant in seeking to exclude the evidence seized pursuant to said illegal search warrant.
Without the aforesaid illegally obtained evidence, there is no sufficient basis to sustain the conviction of appellant.
WHEREFORE, the decision of the Regional Trial Court of Lingayen, Pangasinan, Branch 39, in Criminal Case No. L-5963, is REVERSED and SET ASIDE. Judgment is hereby rendered declaring Search Warrant No. 99-51 NULL and VOID and the search and seizure made at appellant’s residence illegal. For lack of evidence to establish appellant’s guilt beyond reasonable doubt, appellant BENHUR MAMARIL is hereby ACQUITTED and ordered RELEASED from confinement unless he is being held for some other legal grounds.
The Director of the Bureau of Corrections is ORDERED to IMPLEMENT without delay this Decision and to INFORM this Court, within ten (10) days from receipt hereof, of the date appellant was actually released from confinement.
The confiscated marijuana is ORDERED forfeited in favor of the State and the trial court is hereby directed to deliver or cause its delivery to the Dangerous Drugs Board for proper disposition.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Panganiban, Ynares-Santiago, and Carpio, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SUPREME COURT
Manila
EN BANC
G.R. No. L-45950 June 20, 1938
LEONA PASION VIUDA DE GARCIA, petitioner,
vs.
DIEGO LOCSIN, Judge of First Instance of Tarlac,
FELIX IMPERIAL, Provincial Fiscal of Tarlac, and the ANTI-USURY BOARD, respondents.
vs.
DIEGO LOCSIN, Judge of First Instance of Tarlac,
FELIX IMPERIAL, Provincial Fiscal of Tarlac, and the ANTI-USURY BOARD, respondents.
Benigo S. Aquino and Marcial P. Lichauco for petitioner
Adolfo N. Feliciano for the respondent Anti-Usury Board.
Office of the Solicitor-General Tuason for other respondents.
Adolfo N. Feliciano for the respondent Anti-Usury Board.
Office of the Solicitor-General Tuason for other respondents.
LAUREL, J.:
This is a petition for mandamus presented to secure the annulment of a search warrant and two orders of the respondent judge, and the restoration of certain documents alleged to have been illegally seized by an agent of the Anti-Usuary Board.
It appears that on November 10, 1934, Mariano G. Almeda, an agent of the Anti-Usuary Board, obtained from the justice of the peace of Tarlac, Tarlac, a search warrant(Exhibit B) commanding any officer of the law to search the person, house or store of the petitioner at Victoria, Tarlac, for "certain books, lists, chits, receipts, documents and other papers relating to her activities as usurer." The search warrant was issued upon an affidavit given by the said Almeda "that he has and there (is) just and probable cause to believe and he does believe that Leona Pasion de Garcia keeps and conceals in her house and store at Victoria, Tarlac, certain books, lists, chits, receipts, documents, and other papers relating to her activities as usurer, all of which is contrary to the statute in such cases made and provided." On the same date, the said Mariano G. Almeda, accompanied by a captain of the Philippine Constabulary, went to the office of the petitioner in Victoria, Tarlac and, after showing the search warrant to the petitioner's bookkeeper, Alfredo Salas, and, without the presence of the petitioner who was ill and confined at the time, proceeded with the execution thereof. Two packages of records and a locked filing cabinet containing several Papers and documents were seized by Almeda and a receipt therefor issued by him to Salas. The papers and documents seized were kept for a considerable length of time by the Anti-Usury Board and thereafter were turned over by it to the respondent fiscal who subsequently filed, in the Court of First Instance of Tarlac, six separate criminal cases against the herein petitioner for violation of the Anti-Usury Law. On several occasions, after seizure, the petitioner, through counsel, demanded from the respondent Anti-Usury Board the return of the documents seized. On January 7. and, by motion, on June 4, 1937, the legality of the search warrant was challenged by counsel for the petitioner in the six criminal cases and the devolution of the documents demanded. By resolution of October 5, 1937, the respondent Judge of First Instance denied the petitioner's motion of June 4 for the reason that though the search warrant was illegal, there was a waiver on the part of the petitioner. "En el caso presente," declared the respondent judge, "teniendo en cuenta que la acusada Por si o por medio de su representante, no presento protests alguna contra el registro de autos, at verificarse el mismo, o despues de un tiempo rezonable, el juzgado declare que la citada con su silencio y conducta, ha renunciado implicitanmente a su derecho a no ser sometido a un registro irrazonable, por lo que no le es pemitido quejarse despues, puesto que cualquier defecto queha adolecido lo expedicion de la orden de registro y su ejecucion, ha quidado implilcitamente subsanado." A motion for reconsideration was presented but was denied by order of January 3, 1938. Petitioner registered her exception. The resolution of October 5, 1937 and the order of January 3, 1938 are sought, together with the search warrant, Exhibit B, to be nullified in these proceedings.
Paragraph 3, section 1 of the bill of right of our Constitution provides as follows:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be 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.
Freedom from unreasonable searches and seizures is declared a popular right and for a search warrant to be valid, (1) it must be issued upon probable cause; (2) the probable cause must be determined by the judge himself and not by the applicant or any other person; (3) in the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; and (4) the warrant issued must particularly describe the place to be searched and persons or things to be seized. These requirements are complemented by the Code of Criminal Procedure (G. O. No. 58), particularly with reference to the duration of the validity of the search warrant and the obligation of the officer seizing the property to deliver the same to the corresponding court (secs. 102-104). On more than one occasion, since the approval of the Constitution, we had emphasized the necessity of adherence to the constitutional requirements on this subject (Alvarez vs. Court of First Instance of Tayabas and Anti-Usury Board [1937], 35 Off. Gaz., 1183; People vs. Sy Juco [1937], G.R. No. 41957; Rodriguez vs. Villamiel [1937], G.R. No. 44328; and Molo vs. Yatco [1936], 35 Off. Gaz., 1935) and we do not deem it necessary to reiterate what has been said or observed in these cases.
In the instant case the existence of probable cause was determined not by the judge himself but by the applicant. All that the judge did was to accept as true the affidavit made by agent Almeda. He did not decide for himself. It does not appear that he examined the applicant and his witnesses, if any. Even accepting the description of the properties to be seized to be sufficient and on the assumption that the receipt issued is sufficiently detailed within the meaning of the law, the properties seized were not delivered to the court which issued the warrant, as required by law. (See, secs. 95 and 104, G. O. No. 58.) instead, they were turned over to the respondent provincial fiscal and used by him in building up cases against the petitioner. Considering that at the time the warrant was issued there was no case pending against the petitioner, the averment that the warrant was issued primarily for exploration purposes is not without basis. The lower court is, therefore, correct in reaching the conclusion that the search warrant (Exhibit B) was illegally issued by the justice of the peace of Tarlac, Tarlac.
The important question presented is whether upon the facts and under the circumstances of the present case, there has been a waiver by the petitioner of her constitutional immunity against unreasonable searches and seizures. While the Solicitor-General admits that, in the light of decisions of this court, the search warrant was illegally issued, he maintains "(1) that the petitioner had waived her constitutional right by her acquiescence after the search and seizure, and (2) that the application for the return of the documents illegally seized was made after an unreasonable length of time after the date of seizure." Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. (People vs. Kagui Malasugui, 34 Off. Gaz., pp. 2163, 2164; 56 C.J., pp. 1178, 1179; Cf. Rodriguez vs. Villamiel, supra.) The waiver may be either express or implied (67 C.J., p. 304). No express waiver has been made in the case before us. It is urged, however, that there has been a waiver by implication. It is well-settled that to constitute a waiver of a constitutional right, it must appear, first, that the right exists; secondly, that the persons involved had knowledge, either actual or constructive, of the existence of such right; and, lastly, that said person had an actual intention to relinquish the right. (67 C. J., 299.) It is true that the petitioner did not object to the legality of the search when it was made. She could not have objected because she was sick and was not present when the warrant was served upon Alfredo Salas. Certainly, the constitutional immunity from unreasonable searches and seizures, being a personal one, cannot be waived by anyone except the person whose rights are invaded or one who is expressly authorized to do so in his or her behalf. (56 C. J., p. 1183.) Of course, the petitioner came to know later of the seizure of some of her papers and documents. But this was precisely the reason why she sent her attorneys to the office of the Anti-Usuary Board to demand the return of the documents seized. In any event, the failure on the part of the petitioner and her bookkeeper to resist or object to the execution of the warrant does not constitute an implied waiver of constitutional right. It is, as Judge Cooley observes, but a submission to the authority of the law. (Const. Lim., 8th ed., Vol., I, p. 630.) As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. (56 C.J., pp. 1180, 1181.)
As a general proposition, it may be admitted that waiver may be the result of a failure to object within a reasonable time to a search and seizure illegally made. It must be observed, however, that the petitioner, on several occasions, and prior to the filing of criminal actions against her, had demanded verbally, through counsel, the return by the Anti-Usuary Board of the properties seized. This is admitted by Adolfo N. Feliciano, acting chief of the board, who said that the demand was refused simply because no habiamos terminado con nuestra investigacion. (T.s.n., pp. 24-25.) On July 7, 1936, counsel for the petitioner wrote a letter to the Anti-Usuary Board demanding again the return of the documents withheld. And in connection with the criminal cases pending against the petitioner, similar demands were made on January 7, 1937 and on June 4, 1937. In the light of these circumstances, we find that the petitioner did not waive her constitutional right. The delay in making demand for the return of the documents seized is not such as to result in waiver by implication.
In view of the foregoing, the writ prayed for is granted. The search warrant, Exhibit B, is hereby declared void and of no effect; the orders of October 5, 1937 and January 3, 1938 of the respondent judge are set aside; and the respondents Anti-Usuary Board and the provincial fiscal of Tarlac or those acting in their behalf, are hereby ordered to return and restore to the petitioner all the properties, documents, papers and effects illegally seized from her, within forty-eight (48) hours from the time this decision becomes final. Without costs. So ordered.
Avanceña, C.J., Villa-Real, Abad Santos, Imperial, Diaz and Concepcion, JJ., concur.
The Lawphil Project - Arellano Law Foundation
Republic of the Philippines
SUPREME COURT
Manila
SUPREME COURT
Manila
EN BANC
DECISION
January 29, 1937
G.R. No. L-45358
NARCISO ALVAREZ, petitioner,
vs.
THE COURT OF FIRST INSTANCE OF TAYABAS and THE ANTI-USURY BOARD, respondents.
Godofredo Reyes for petitioner.
Adolfo N. Feliciano for respondents Anti-Usury Board.
Imperial, J.:
The petitioner asks that the warrant of June 3, 1936, issued by the Court of First Instance of Tayabas, ordering the search of his house and the seizure, at any time of the day or night, of certain accounting books, documents and papers belonging to him in his residence situated in Infanta, Province of Tayabas, as well as the order of a later date, authorizing the agents of the Anti-Usury Board to retain the articles seized, be declared illegal and set aside, and prays that all the articles in question be returned to him.
On the date above-mentioned, the chief of the secret service of the Anti-Usury Board, of the Department of Justice, presented to Judge Eduardo Gutierrez David then presiding over the Court of First Instance of Tayabas, an affidavit alleging that according to reliable information, the petitioner kept in his house in Infanta, Tayabas, books, documents, receipts, lists, chits and other papers used by him in connection with his activities as a money-lender charging usurious rates of interest in violation of the law. In his oath at the and of the affidavit, the chief of the secret service stated that his answers to the questions were correct to the best of his knowledge and belief. He did not swear to the truth of his statements upon his own knowledge of the facts but upon the information received by him from a reliable person. Upon the affidavit in question the Judge, on said date, issued the warrant which is the subject matter of the petition, ordering the search of the petitioner's house at nay time of the day or night, the seizure of the books and documents above-mentioned and the immediate delivery thereof to him to be disposed of in accordance with the law. With said warrant, several agents of the Anti-Usury Board entered the petitioner's store and residence at seven o'clock on the night of June 4, 1936, and seized and took possession of the following articles: internal revenue licenses for the years 1933 to 1936, one ledger, two journals, two cashbooks, nine order books, four notebooks, four checks stubs, two memorandums, three bankbooks, two contracts, four stubs, forty-eight stubs of purchases of copra, two inventories, two bundles of bills of lading, one bundle of credit receipts, one bundle of stubs of purchases of copra, two packages of correspondence, one receipt book belonging to Luis Fernandez, fourteen bundles of invoices and other papers many documents and loan contracts with security and promissory notes, 504 chits, promissory notes and stubs of used checks of the Hongkong & Shanghai Banking Corporation. The search for and a seizure of said articles were made with the opposition of the petitioner who stated his protest below the inventories on the ground that the agents seized even the originals of the documents. As the articles had not been brought immediately to the judge who issued the search warrant, the petitioner, through his attorney, filed a motion on June 8, 1936, praying that the agent Emilio L. Siongco, or any other agent, be ordered immediately to deposit all the seized articles in the office of the clerk of court and that said agent be declared guilty of contempt for having disobeyed the order of the court. On said date the court issued an order directing Emilio L. Siongco to deposit all the articles seized within twenty-four hours from the receipt of notice thereof and giving him a period of five (5) days within which to show cause why he should not be punished for contempt of court. On June 10th, Attorney Arsenio Rodriguez, representing the Anti-Usury Board, filed a motion praying that the order of the 8th of said month be set aside and that the Anti-Usury Board be authorized to retain the articles seized for a period of thirty (30) days for the necessary investigation. The attorney for the petitioner, on June 20th, filed another motion alleging that, notwithstanding the order of the 8th of said month, the officials of the Anti-Usury Board had failed to deposit the articles seized by them and praying that a search warrant be issued, that the sheriff be ordered to take all the articles into his custody and deposit of the Anti-Usury Board be punished for contempt of court. Said attorney, on June 24th, filed an ex parte petition alleging that while agent Emilio L. Siongco had deposited some documents and papers in the office of the clerk of court, he had so far failed to file an inventory duly verified by oath of all the documents seized by him, to return the search warrant together with the affidavit it presented in support thereof, or to present the report of the proceedings taken by him; and prayed that said agent be directed to filed the documents in question immediately. On the 25th of said month the court issued an order requiring agent Emilio L. Siongco forthwith to file the search warrant and the affidavit in the court, together with the proceedings taken by him, and to present an inventory duly verified by oath of all the articles seized. On July 2d of said year, the attorney for the petitioner filed another petition alleging that the search warrant issue was illegal and that it had nit yet been returned to date together with the proceedings taken in connection therewith, and praying that said warrant be cancelled, that an order be issued directing the return of all the articles seized to the petitioner, that the agent who seized them be declared guilty of contempt of court, and that charges be filed against him for abuse of authority. On September 10, 1936, the court issued an order holding: that the search warrant was obtained and issued in accordance with the law, that it had been duly complied with and, consequently, should not be cancelled, and that agent Emilio L. Siongco did not commit any contempt of court and must, therefore, be exonerated, and ordering the chief of the Anti-Usury Board in Manila to show case, if any, within the unextendible period of two (2) days from the date of notice of said order, why all the articles seized appearing in the inventory, Exhibit 1, should not be returned to the petitioner. The assistant chief of the Anti-Usury Board of the Department of Justice filed a motion praying, for the reasons stated therein, that the articles seized be ordered retained for the purpose of conducting an investigation of the violation of the Anti-Usury Law committed by the petitioner. In view of the opposition of the attorney for the petitioner, the court, on September 25th, issued an order requiring the Anti-Usury Board to specify the time needed by it to examine the documents and papers seized and which of them should be retained, granting it a period of five (5) days for said purpose. On the 30th of said month the assistant chief of the Anti-Usury Board filed a motion praying that he be granted ten (10) days to comply with the order of September 25th and that the clerk of court be ordered to return to him all the documents and papers together with the inventory thereof. The court, in an order of October 2d of said year, granted him the additional period of ten(10) days and ordered the clerk of court to send him a copy of the inventory. On October 10th, said official again filed another motion alleging that he needed sixty (60) days to examine the documents and papers seized, which are designated on pages 1 to 4 of the inventory by Nos. 5, 1016, 23, 25, 26, 27, 30, 31, 34, 36, 37, 38, 39, 40, 41, 42, 43 and 45, and praying that he be granted said period of sixty (60) days. In an order of October 16th, the court granted him the period of sixty (60) days to investigate said nineteen (19) documents. The petitioner alleges, and it is not denied by the respondents, that these nineteen (19)documents continue in the possession of the court, the rest having been returned to said petitioner.
I. A search warrant is an order in writing, issued in the name of the People of the Philippine Islands, signed by a judge or a justice of the peace, and directed to a peace officer, commanding him to search for personal property and bring it before the court (section 95, General Orders. No. 58, as amended by section 6 of Act No. 2886). Of all the rights of a citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves the exemption of his private affairs, books, and papers from the inspection and scrutiny of others (In re Pacific Railways Commission, 32 Fed., 241; Interstate Commerce Commission vs Brimson, 38 Law. ed., 1047; Broyd vs. U. S., 29 Law. ed., 746; Caroll vs. U. S., 69 Law. ed., 543, 549). While the power to search and seize is necessary to the public welfare, still it must be exercised and the law enforced without transgressing the constitutional rights or citizen, for the enforcement of no statue is of sufficient importance to justify indifference to the basis principles of government (People vs. Elias, 147 N. E., 472).
II. As the protection of the citizen and the maintenance of his constitutional right is one of the highest duties and privileges of the court, these constitutional guaranties should be given a liberal construction or a strict construction in favor of the individual, to prevent stealthy encroachment upon, or gradual depreciation on, the rights secured by them(State vs. Custer County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965; 237 Pac., 373). Since the proceeding is a drastic one, it is the general rule that statutes authorizing searches and seizure or search warrants must be strictly construed (Rose vs. St. Clair, 28 Fed., [2d], 189; Leonard vs. U. S., 6 Fed. [2d], 353; Perry vs. U. S. 14 Fed. [2d],88; Cofer vs. State, 118 So., 613).
III. The petitioner claims that the search warrant issued by the court is illegal because it has been based upon the affidavit of agent Mariano G. Almeda in whose oath he declared that he had no personal knowledge of the facts which were to serve as a basis for the issuance of the warrant but that he had knowledge thereof through mere information secured from a person whom he considered reliable. To the question "What are your reason for applying for this search warrant", appearing in the affidavit, the agent answered: "It has been reported to me by a person whom I consider to be reliable that there are being kept in said premises, books, documents, receipts, lists, chits, and other papers used by him in connection with his activities as a money-lender, charging a usurious rate of interest, in violation of the law" and in attesting the truth of his statements contained in the affidavit, the said agent states that he found them to be correct and true to the best of his knowledge and belief.
Section 1, paragraph 3, of Article III of the Constitution, relative to the bill of rights, provides that "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place top be searched, and the persons or things to be seized." Section 97 of General Orders, No. 58 provides that "A search warrant shall not issue except for probable cause and upon application supported by oath particularly describing the place to be searched and the person or thing to be seized." It will be noted that both provisions require that there be not only probable cause before the issuance of a search warrant but that the search warrant must be based upon an application supported by oath of the applicant ands the witnesses he may produce. In its broadest sense, an oath includes any form of attestation by which a party signifies that he is bound in conscience to perform an act faithfully and truthfully; and it is sometimes defined asan outward pledge given by the person taking it that his attestation or promise is made under an immediate sense of his responsibility to God (Bouvier's Law Dictionary; State vs. Jackson, 137 N. W., 1034; In re Sage, 24 Oh. Cir. Ct. [N. S.], 7; Pumphery vs. State, 122 N. W., 19; Priest vs. State, 6 N. W., 468; State vs. Jones, 154 Pac., 378; Atwood vs. State, 111 So., 865). 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 (U. S. vs. Tureaud, 20 Fed., 621; U. S. vs. Michalski, 265 Fed., 8349; U. S. vs. Pitotto, 267 Fed., 603; U. S. vs. Lai Chew, 298 Fed., 652). The true test of sufficiency of an affidavit to warrant issuance of a search warrant is whether it has been drawn in such a manner that perjury could be charged thereon and affiant be held liable for damages caused (State vs. Roosevelt Country 20th Jud. Dis. Ct., 244 Pac., 280; State vs. Quartier, 236 Pac., 746).
It will likewise be noted that section 1, paragraph 3, of Article III of the Constitution prohibits unreasonable searches and seizure. Unreasonable searches and seizures are a menace against which the constitutional guarantee afford full protection. The term "unreasonable search and seizure" is not defined in the Constitution or in General Orders No. 58, and it is said to have no fixed, absolute or unchangeable meaning, although the term has been defined in general language. All illegal searches and seizure are unreasonable while lawful ones are reasonable. What constitutes a reasonable or unreasonable search or seizure in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved, including the purpose of the search, the presence or absence or probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured (Go-Bart Importing Co. vs. U. S. 75 Law. ed., 374; Peru vs. U. S., 4 Fed., [2d], 881;U. S. vs. Vatune, 292 Fed., 497; Angelo vs. U. S. 70 Law, ed., 145; Lambert vs. U. S. 282 Fed., 413; U. S. vs. Bateman, 278 Fed., 231; Mason vs. Rollins, 16 Fed. Cas. [No. 9252], 2 Biss., 99).
In view of the foregoing and under the above-cited authorities, it appears that the affidavit, which served as the exclusive basis of the search warrant, is insufficient and fatally defective by reason of the manner in which the oath was made, and therefore, it is hereby held that the search warrant in question and the subsequent seizure of the books, documents and other papers are illegal and do not in any way warrant the deprivation to which the petitioner was subjected.
IV. Another ground alleged by the petitioner in asking that the search warrant be declared illegal and cancelled is that it was not supported by other affidavits aside from that made by the applicant. In other words, it is contended that the search warrant cannot be issued unless it be supported by affidavits made by the applicant and the witnesses to be presented necessity by him. Section 1, paragraph 3, of Article III of the Constitution provides that no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. Section 98 of General Orders, No. 58 provides that the judge or justice must, before issuing the warrant, examine under oath the complainant and any witnesses he may produce and take their depositions in writing. It is the practice in this jurisdiction to attach the affidavit of at least the applicant or complainant to the application. It is admitted that the judge who issued the search warrant in this case, relied exclusively upon the affidavit made by agent Mariano G. Almeda and that he did not require nor take the deposition of any other witness. Neither the Constitution nor General Orders. No. 58 provides that it is of imperative necessity to take the deposition of the witnesses to be presented by the applicant or complainant in addition to the affidavit of the latter. The purpose of both in requiring the presentation of depositions is nothing more than to satisfy the committing magistrate of the existence of probable cause. Therefore, if the affidavit of the applicant or complainant is sufficient, the judge may dispense with that of other witnesses. Inasmuch as the affidavit of the agent in this case was insufficient because his knowledge of the facts was not personal but merely hearsay, it is the duty of the judge to require the affidavit of one or more witnesses for the purpose of determining the existence of probable cause to warrant the issuance of the search warrant. When the affidavit of the applicant of the complaint contains sufficient facts within his personal and direct knowledge, it is sufficient if the judge is satisfied that there exist probable cause; when the applicant's knowledge of the facts is mere hearsay, the affidavit of one or more witnesses having a personal knowledge of the fact is necessary. We conclude, therefore, that the warrant issued is likewise illegal because it was based only on the affidavit of the agent who had no personal knowledge of the facts.
V. The petitioner alleged as another ground for the declaration of the illegality of the search warrant and the cancellation thereof, the fact that it authorized its execution at night. Section 101 of General Orders, No. 58 authorizes that the search be made at night when it is positively asserted in the affidavits that the property is on the person or in the place ordered to be searched. As we have declared the affidavits insufficient and the warrant issued exclusively upon it illegal, our conclusion is that the contention is equally well founded and that the search could not legally be made at night.
VI. One of the grounds alleged by the petitioner in support of his contention that the warrant was issued illegally is the lack of an adequate description of the books and documents to be seized. Section 1, paragraphs 3, of Article III of the Constitution, and section 97 of General Orders, No. 58 provide that the affidavit to be presented, which shall serve as the basis for determining whether probable cause exist and whether the warrant should be issued, must contain a particular description of the place to be searched and the person or thing to be seized. These provisions are mandatory and must be strictly complied with (Munch vs. U. S., 24 Fed. [2d], 518; U. S. vs. Boyd, 1 Fed. [2d], 1019; U. S. vs. Carlson, 292 Fed., 463; U. S. vs. Borkowski, 268 Fed., 408; In re Tri-State Coal & Coke Co., 253 Fed., 605; People vs. Mayen, 188 Cal., 237; People vs. Kahn, 256 Ill. App., 4125); but where, by the nature of the goods to be seized, their description must be rather generally, it is not required that a technical description be given, as this would mean that no warrant could issue (People vs. Rubio, 57 Phil. 284; People vs. Kahn, supra). The only description of the articles given in the affidavit presented to the judge was as follows: "that there are being kept in said premises books, documents, receipts, lists, chits and other papers used by him in connection with his activities as money-lender, charging a usurious rate of interest, in violation of the law." Taking into consideration the nature of the article so described, it is clear that no other more adequate and detailed description could have been given, particularly because it is difficult to give a particular description of the contents thereof. The description so made substantially complies with the legal provisions because the officer of the law who executed the warrant was thereby placed in a position enabling him to identify the articles, which he did.
VII. The last ground alleged by the petitioner, in support of his claim that the search warrant was obtained illegally, is that the articles were seized in order that the Anti-Usury Board might provide itself with evidence to be used by it in the criminal case or cases which might be filed against him for violation of the Anti-usury Law. At the hearing of the incidents of the case raised before the court it clearly appeared that the books and documents had really been seized to enable the Anti-Usury Board to conduct an investigation and later use all or some of the articles in question as evidence against the petitioner in the criminal cases that may be filed against him. The seizure of books and documents by means of a search warrant, for the purpose of using them as evidence in a criminal case against the person in whose possession they were found, is unconstitutional because it makes the warrant unreasonable, and it is equivalent to a violation of the constitutional provision prohibiting the compulsion of an accused to testify against himself (Uy Kheytin vs. Villareal, 42 Phil,, 886; Brady vs. U. S., 266 U. S., 620; Temperani vs. U. S., 299 Fed., 365; U. S. vs. Madden, 297 Fed., 679; Boyd vs. U. S.,116 U. S., 116; Caroll vs. U. S., 267 U. S., 132). Therefore, it appearing that at least nineteen of the documents in question were seized for the purpose of using them as evidence against the petitioner in the criminal proceeding or proceedings for violation against him, we hold that the search warrant issued is illegal and that the documents should be returned to him.
The Anti-Usury Board insinuates in its answer that the petitioner cannot now question the validity of the search warrant or the proceedings had subsequent to the issuance thereof, because he has waived his constitutional rights in proposing a compromise whereby he agreed to pay a fine of P200 for the purpose of evading the criminal proceeding or proceedings. We are of the opinion that there was no such waiver, first, because the petitioner has emphatically denied the offer of compromise and, second, because if there was a compromise it reffered but to the institution of criminal proceedings fro violation of the Anti-Usury Law. The waiver would have been a good defense for the respondents had the petitioner voluntarily consented to the search and seizure of the articles in question, but such was not the case because the petitioner protested from the beginning and stated his protest in writing in the insufficient inventory furnished him by the agents.
Said board alleges as another defense that the remedy sought by the petitioner does not lie because he can appeal from the orders which prejudiced him and are the subject matter of his petition. Section 222 of the Code of Civil Procedure in fact provides that mandamus will not issue when there is another plain, speedy and adequate remedy in the ordinary course of law. We are of the opinion, however, that an appeal from said orders would have to lapse before he recovers possession of the documents and before the rights, of which he has been unlawfully deprived, are restored to him (Fajardo vs. Llorente, 6 Phil. 426; Manotoc vs. McMicking and Trinidad, 10 Phil. 119; Cruz Herrera de Lukban vs. McMicking, 14 Phil. 641; Lamb vs. Phipps, 22 Phil. 456).
Summarizing the foregoing conclusions, we hold:
1. That the provisions of the Constitution and General Orders, No. 58, relative to search and seizure, should be given a liberal construction in favor of the individual in order to maintain the constitutional guaranties whole and in their full force;
2. That since the provisions in question are drastic in their form and fundamentally restrict the enjoyment of the ownership, possession and use of the personal property of the individual, they should be strictly construed;
3. That the search and seizure made are illegal for the following reasons: (a) Because the warrant was based solely upon the affidavit of the petitioner who had no personal knowledge of the facts of probable cause, and (b) because the warrant was issued for the sole purpose of seizing evidence which would later be used in the criminal proceedings that might be instituted against the petitioner, for violation of the Anti-Usury Law;
4. That as the warrant had been issued unreasonably, and as it does not appear positively in the affidavit that the articles were in the possession of the petitioner and in the place indicated, neither could the search and seizure be made at night;
5. That although it is not mandatory to present affidavits of witnesses to corroborate the applicant or a complainant in cases where the latter has personal knowledge of the facts, when the applicant's or complainant's knowledge of the facts is merely hearsay, it is the duty of the judge to require affidavits of other witnesses so that he may determine whether probable cause exists;
6. That a detailed description of the person and place to be searched and the articles to be seized is necessary, but whereby, by the nature of the articles to be seized, their description must be rather general, but is not required that a technical description be given, as this would mean that no warrant could issue;
7. That the petitioner did not waive his constitutional rights because the offer of compromise or settlement attributed to him, does not mean, if so made, that he voluntarily tolerated the search and seizure; and
8. That an appeal from the orders questioned by the petitioner, if taken by him, would not be an effective, speedy or adequate remedy in the ordinary course of law, and, consequently, the petition for mandamus filed by him, lies.
For the foregoing considerations, the search warrant and the seizure of June 3, 1936, and the orders of the respondent court authorizing the relation of the books and documents, are declared illegal and are set aside, and it is ordered that the judge presiding over the Court of First Instance of Tayabas direct the immediate return to the petitioner of the nineteen (19) documents designated on pages 1 to 4 of the inventory by Nos. 5, 10, 16, 23, 25,26, 27, 30, 31, 34, 36, 37, 38, 39, 40, 41, 42, 43 and 45, without special pronouncement as to costs. So ordered kSHyrm6k.
Avanceña, C.J., Villa-Real, Diaz and Concepcion, JJ., concur.
Separate Opinions
ABAD SANTOS, J., concurring:
My views on the fundamental questions involved in this case are fully set forth in my dissenting opinion filed in People vs. Rubio (57 Phil. 384, 395). I am gratified to see that, in the main, those views have now prevailed. I therefore concur in the decision of the court herein.
LAUREL, J., concurring:
I subscribe to the views expressed in the foregoing carefully prepared opinion, with the reservation now to be stated. To my mind, the search warrant in this case does not satisfy the constitutional requirement regarding the particularity of the description of "the place to be searched and the persons or things to be seized" (par. 3, sec. 1, Art. III, Constitution of the Philippines). Reference to "books, documents, receipts, lists, chits and other papers used by him in connection with his activities as money-lender, charging usurious rates of interest in violation of the law" in the search warrant is so general, loose and vague as to confer unlimited discretion upon the officer serving the warrant to choose and determine for himself just what are the "books, documents, receipts, lists, chits and other papers" used by the petitioner in connection with his alleged activities as money-lender. The evident purpose and intent of the constitutional requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant, to the end that unreasonable searches and seizures may not be made, — that abuses may not be committed (Uy Kheytin vs. Villareal, 42 Phil. 886). .
[1][1] RA No. 6425, as amended, Sec. 8. Possession or Use of Prohibited Drugs. – The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person, who, unless authorized by law, shall possess or use any prohibited drug subject to the provisions of section 20 hereof.
[30][30] Pendon v. Court of Appeals, 191 SCRA 429, 437 (1990), citing Marinas v. Sioco, 104 SCRA 403, 432 (1981); Ponsica v. Ignalaga, 152 SCRA 647, 664 (1987).
[45][45] The Constitution, Article III, Section 3 (2). Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.
[ii][2] SEC. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. – The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or ptransport any prohibited drug, or shall act as a broker in any of such transactions.
Notwithstanding the provision of Section 20 of this Act to the contrary, if the victim of the offense is a minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty herein provided shall be imposed.
[xxviii][28] People v. Jimenez, 302 SCRA 607, 621 (1999); People v. Calvo, Jr., 269 SCRA 676, 688 (1997).
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