SECOND DIVISION Gonzales, Jr., Eric L. Lee and Ben Yu Lim, Jr.

, and ruled that the

Municipal Trial Court in Cities (MTCC), Bago City, did not gravely
TEODORO C. BORLONGAN, G.R. No. 143591 abuse its discretion in denying the motion for reinvestigation and
JR., CORAZON M. BEJASA, recall of the warrants of arrest in Criminal Case Nos. 6683, 6684,
ARTURO E. 6685, and 6686.
MANUEL, JR., ERIC L. LEE, P. Present:
SIERVO H. DIZON, BENJAMIN The factual antecedents of the case are as follows:
DE BRION, J.,
LEON, DELFIN C. GONZALES, Acting Chairperson, Respondent Atty. Magdaleno M. Pea (Atty. Pea) instituted a
JR., DEL CASTILLO, civil case for recovery of agents compensation and expenses,
and BEN YU LIM, JR., VILLARAMA, JR.,* damages, and attorneys fees 2[2] against Urban Bank and herein
Petitioners, PEREZ, and petitioners, before the Regional Trial Court (RTC) of Negros
MENDOZA, JJ.** Occidental, Bago City. The case was raffled to Branch 62 and was
docketed as Civil Case No. 754. Atty. Pea anchored his claim for
- versus - compensation on the Contract of Agency3[3] allegedly entered into
with the petitioners, wherein the former undertook to perform such
acts necessary to prevent any intruder and squatter from unlawfully
MAGDALENO M. PEA and HON. Promulgated: occupying Urban Banks property located along Roxas Boulevard,
MANUEL Q. LIMSIACO, JR., as May 5, 2010 Pasay City. Petitioners filed a Motion to Dismiss 4[4] arguing that
Judge Designate of the Municipal they never appointed the respondent as agent or counsel. Attached to
Trial Court in Cities, Bago City, the motion were the following documents: 1) a Letter 5[5] dated 19
Respondents. December 1994 signed by Herman Ponce and Julie Abad on behalf
of Isabela Sugar Company, Inc. (ISCI), the original owner of the
x---------------------------------------------- subject property; 2) an unsigned Letter 6[6] dated 7 December 1994
- - -x addressed to Corazon Bejasa from Marilyn G. Ong; 3) a Letter 7[7]
dated 9 December 1994 addressed to Teodoro Borlongan, Jr. and
DECISION signed by Marilyn G. Ong; and 4) a Memorandum 8[8] dated 20

PEREZ, J.: 2
3
The pivotal issue in this case is whether or not the Court of
Appeals, in its Decision1[1] dated 20 June 2000 in CA-G.R. SP No. 4
49666, is correct when it dismissed the petition for certiorari filed by 5
petitioners Teodoro C. Borlongan, Jr., Corazon M. Bejasa, Arturo E. 6
Manuel, Jr., Benjamin de Leon, P. Siervo H. Dizon, Delfin C. 7
1 8
November 1994 from Enrique Montilla III. Said documents were
presented in an attempt to show that the respondent was appointed as
agent by ISCI and not by Urban Bank or by the petitioners.
In view of the introduction of the above-mentioned
documents, Atty. Pea filed his Complaint-Affidavit 9[9] with the
Office of the City Prosecutor, Bago City. 10[10] He claimed that said
documents were falsified because the alleged signatories did not
actually affix their signatures, and the signatories were neither
stockholders nor officers and employees of ISCI. 11[11] Worse,
petitioners introduced said documents as evidence before the RTC
knowing that they were falsified.
In a Resolution12[12] dated 24 September 1998, the City
Prosecutor found probable cause for the indictment of petitioners for
four (4) counts of the crime of Introducing Falsified Documents,
penalized by the second paragraph of Article 172 of the Revised
Penal Code. The City Prosecutor concluded that the documents were
falsified because the alleged signatories untruthfully stated that ISCI
was the principal of the respondent; that petitioners knew that the
documents were falsified considering that the signatories were mere
dummies; and that the documents formed part of the record of Civil
Case No. 754 where they were used by petitioners as evidence in
support of their motion to dismiss, and then adopted in their answer
and in their Pre-Trial Brief.13[13] Subsequently, the corresponding
Informations14[14] were filed with the MTCC, Bago City. The cases
were docketed as Criminal Case Nos. 6683, 6684, 6685, and 6686.
Thereafter, Judge Primitivo Blanca issued the warrants 15[15] for the
arrest of the petitioners
9 Petitioners immediately instituted a special civil action for
10
11
12
13
14
On 1 October 1998, petitioners filed an Omnibus Motion to
Quash, Recall Warrants of Arrest and/or For Reinvestigation. 16[16]
Petitioners insisted that they were denied due process because of the
non-observance of the proper procedure on preliminary investigation
prescribed in the Rules of Court. Specifically, they claimed that they
were not afforded the right to submit their counter-affidavit. Then
they argued that since no such counter-affidavit and supporting
documents were submitted by the petitioners, the trial judge merely
relied on the complaint-affidavit and attachments of the respondent
in issuing the warrants of arrest, also in contravention with the Rules
of Court. Petitioners further prayed that the information be quashed
for lack of probable cause. Moreover, one of the accused, i.e., Ben
Lim, Jr., is not even a director of Urban Bank, contrary to what
complainant stated. Lastly, petitioners posited that the criminal cases
should have been suspended on the ground that the issue being
threshed out in the civil case is a prejudicial question.
In an Order17[17] dated 13 November 1998, the MTCC
denied the omnibus motion primarily on the ground that preliminary
investigation was not available in the instant case which fell within
the jurisdiction of the first-level court. The court, likewise, upheld
the validity of the warrant of arrest, saying that it was issued in
accordance with the Rules of Court. Besides, the court added,
petitioners could no longer question the validity of the warrant since
they already posted bail. The court also believed that the issue
involved in the civil case was not a prejudicial question, and, thus,
denied the prayer for suspension of the criminal proceedings. Lastly,
the court was convinced that the Informations contained all the facts
necessary to constitute an offense.
Certiorari and Prohibition with Prayer for Writ of Preliminary
15
16
17
Injunction and Temporary Restraining Order (TRO) before the Court
of Appeals, ascribing grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the MTCC in issuing and not
recalling the warrants of arrest, reiterating the arguments in their
omnibus motion.18[18] They, likewise, questioned the courts
conclusion that by posting bail, petitioners already waived their right
to assail the validity of the warrants of arrest.
On 20 June 2000, the Court of Appeals dismissed the
petition.19[19] Thus, petitioners filed the instant petition for review
on certiorari under Rule 45 of the Rules of Court, raising the
following issues:
A.
Where the offense charged in a criminal
complaint is not cognizable by the Regional Trial
Court and not covered by the Rule on Summary
Procedure, is the finding of probable cause required
for the filing of an Information in court?
If the allegations in the complaint-affidavit
do not establish probable cause, should not the
investigating prosecutor dismiss the complaint, or at
the very least, require the respondent to submit his
counter-affidavit?
B.
Can a complaint-affidavit containing matters
which are not within the personal knowledge of the
complainant be sufficient basis for the finding of
probable cause?
C.
18
19
Where there is offense charged in a criminal
complaint is not cognizable by the Regional Trial
Court and not covered by the Rule on Summary
Procedure, and the record of the preliminary
investigation does not show the existence of
probable cause, should not the judge refuse to issue
a warrant of arrest and dismiss the criminal case, or
at the very least, require the accused to submit his
counter-affidavit in order to aid the judge in
determining the existence of probable cause?
D.
Can a criminal prosecution be restrained?
E.
Can this Honorable Court itself determine
the existence of probable cause?20[20]
On the other hand, respondent contends that the issues raised
by the petitioners had already become moot and academic when the
latter posted bail and were already arraigned.
On 2 August 2000, this Court issued a TRO21[21] enjoining
the judge of the MTCC from proceeding in any manner with
Criminal Case Nos. 6683 to 6686, effective during the entire period
that the case is pending before, or until further orders of, this Court.
We will first discuss the issue of mootness.
The issues raised by the petitioners have not been mooted by
the fact that they had posted bail and were already arraigned.
20
21
 It appears from the records that upon the issuance of the
warrant of arrest, petitioners immediately posted bail as they wanted
to avoid embarrassment, being then the officers of Urban Bank. On
the scheduled date for the arraignment, despite the petitioners refusal
to enter a plea, the court a quo entered a plea of Not Guilty for them.
The erstwhile ruling of this Court was that posting of bail
constitutes a waiver of any irregularity in the issuance of a warrant of
arrest, that has already been superseded by Section 26, Rule 114 of
the Revised Rule of Criminal Procedure. The principle that the
accused is precluded from questioning the legality of the arrest after
arraignment is true only if he voluntarily enters his plea and
participates during trial, without previously invoking his objections
thereto.22[22]
As held in Okabe v. Hon. Gutierrez:23[23]
It bears stressing that Section 26, Rule 114
of the Revised Rules on Criminal Procedure is a new
one, intended to modify previous rulings of this
Court that an application for bail or the admission to
bail by the accused shall be considered as a waiver
of his right to assail the warrant issued for his arrest
on the legalities or irregularities thereon. The new
rule has reverted to the ruling of this Court in People
v. Red. The new rule is curative in nature because
precisely, it was designed to supply defects and curb
evils in procedural rules. Hence, the rules governing
curative statutes are applicable. Curative statutes are
by their essence retroactive in application. Besides,
procedural rules as a general rule operate
retroactively, even without express provisions to that
effect, to cases pending at the time of their
effectivity, in other words to actions yet
22
23
undetermined at the time of their effectivity. Before
the appellate court rendered its decision on January
31, 2001, the Revised Rules on Criminal Procedure
was already in effect. It behoved the appellate court
to have applied the same in resolving the petitioners
petition for certiorari and her motion for partial
reconsideration.
Moreover, considering the conduct of the
petitioner after posting her personal bail bond, it
cannot be argued that she waived her right to
question the finding of probable cause and to assail
the warrant of arrest issued against her by the
respondent judge. There must be clear and
convincing proof that the petitioner had an actual
intention to relinquish her right to question the
existence of probable cause. When the only proof of
intention rests on what a party does, his act should
be so manifestly consistent with, and indicative of,
an intent to voluntarily and unequivocally relinquish
the particular right that no other explanation of his
conduct is possible. x x x.
Herein petitioners filed the Omnibus Motion to Quash,
Recall Warrants of Arrest and/or For Reinvestigation on the same
day that they posted bail. Their bail bonds likewise expressly
contained a stipulation that they were not waiving their right to
question the validity of their arrest. 24[24] On the date of their
arraignment, petitioners refused to enter their plea due to the fact that
the issue on the legality of their arrest is still pending with the Court.
Thus, when the court a quo entered a plea of not guilty for them,
there was no valid waiver of their right to preclude them from raising
the same with the Court of Appeals or this Court. The posting of bail
bond was a matter of imperative necessity to avert their
24
incarceration; it should not be deemed as a waiver of their right to
assail their arrest. The ruling to which we have returned in People v.
Red25[25] stated:
x x x The present defendants were arrested towards the end
of January, 1929, on the Island and Province of Marinduque
by order of the judge of the Court of First Instance of
Lucena, Tayabas, at a time when there were no court
sessions being held in Marinduque. In view of these
circumstances and the number of the accused, it may
properly be held that the furnishing of the bond was
prompted by the sheer necessity of not remaining in
detention, and in no way implied their waiver of any right,
such as the summary examination of the case before their
detention. That they had no intention of waiving this right is
clear from their motion of January 23, 1929, the same day on
which they furnished a bond, and the fact that they renewed
this petition on February 23, 1929, praying for the stay of
their arrest for lack of the summary examination; the first
motion being denied by the court on January 24, 1929 (G.R.
No. 33708, page 8), and the second remaining undecided,
but with an order to have it presented in Boac, Marinduque.
Therefore, the defendants herein cannot be said to
have waived the right granted to them by section 13, General
Order No. 58, as amended by Act No. 3042.
The rest of the issues raised by the petitioners may be
grouped into two, which are: (1) the procedural aspect, i.e., whether
the prosecution and the court a quo properly observed the required
procedure in the instant case, and, (2) the substantive aspect, which
25
is whether there was probable cause to pursue the criminal cases to
trial.
THE PROCEDURAL ASPECT:
Petitioners contend that they were denied due process as they
were unable to submit their counter-affidavits and were not accorded
the right to a preliminary investigation. Considering that the
complaint of Atty. Pea was filed in September 1998, the rule then
applicable was the 1985 Rules of Criminal Procedure.
The provisions of the 1985 Rules of Criminal Procedure
relevant to the issue are Sections 1, 3(a) and 9(a) of Rule 112, to wit:
Section 1. Definition. Preliminary
investigation is an inquiry or proceeding for the
purpose of determining whether there is sufficient
ground to engender a well founded belief that a
crime cognizable by the Regional Trial Court has
been committed and that the respondent is probably
guilty thereof, and should be held for trial.
Sec. 3. Procedure. Except as provided for in
Section 7 hereof, no complaint or information for an
offense cognizable by the Regional Trial Court shall
be filed without a preliminary investigation having
been first conducted in the following manner:
(a) The complaint shall state the known address of
the respondent and be accompanied by affidavits of
the complainant and his witnesses as well as other
supporting documents, in such number of copies as
there are respondents, plus two (2) copies for the
official file. The said affidavits shall be sworn to
before any fiscal, state prosecutor or government
official authorized to administer oath, or, in their
absence or unavailability, a notary public, who must
 certify that he personally examined the affiants and
that he is satisfied that they voluntarily executed and
understood their affidavits.
Sec. 9. Cases not falling under the original
jurisdiction of the Regional Trial Courts nor covered
by the Rule on Summary Procedure.
(a) Where filed with the fiscal. If the complaint is
filed directly with the fiscal or state prosecutor, the
procedure outlined in Section 3(a) of this Rule shall
be observed. The fiscal shall take appropriate action
based on the affidavits and other supporting
documents submitted by the complainant.
(underscoring supplied)
The crime to which petitioners were charged was defined
and penalized under second paragraph of Article 172 in relation to
Article 171 of the Revised Penal Code.
Art. 172. Falsification by private individual and use
of falsified documents. The penalty of prision
correccional in its medium and maximum periods
and a fine of not more than P5,000 pesos shall be
imposed upon:
1. Any private individual who shall commit any of
the falsifications enumerated in the next preceding
article in any public or official document or letter of
exchange or any other kind of commercial
document; and
2. Any person who, to the damage of a third party, or
with the intent to cause such damage, shall in any
private document commit any of the acts of
falsification enumerated in the next preceding
article.
Any person who shall knowingly introduce in
evidence in any judicial proceeding or to the damage
of another or who, with the intent to cause such
damage, shall use any of the false documents
embraced in the next preceding article or in any of
the foregoing subdivisions of this article, shall be
punished by the penalty next lower in degree.
Prision correccional in its medium and maximum periods
translates to imprisonment of 2 years, 4 months and 1 day. 26[26] The
next lower in degree to prision correccional is arresto mayor in its
maximum period to prision correccional in its minimum period
which translates to 4 months and 1 day to 2 years and 4 months 27[27]
of imprisonment. Since the crime committed is not covered by the
Rules of Summary Procedure,28[28] the case falls within the
exclusive jurisdiction of the first level courts but applying the
ordinary rules. In such instance, preliminary investigation as defined
in Section 1, Rule 112 of the 1985 Rules of Criminal Procedure is
not applicable since such section covers only crimes cognizable by
the RTC. That which is stated in Section 9(a) is the applicable rule.
Under this Rule, while probable cause should first be
determined before an information may be filed in court, the
prosecutor is not mandated to require the respondent to submit his
counter-affidavits to oppose the complaint. In the determination of
probable cause, the prosecutor may solely rely on the complaint,
affidavits and other supporting documents submitted by the
complainant. If he does not find probable cause, the prosecutor may
26
27
28
dismiss outright the complaint or if he finds probable cause or
sufficient reason to proceed with the case, he shall issue a resolution
and file the corresponding information.
The complaint of respondent, verbatim, is as follows:
COMPLAINT AFFIDAVIT
I, MAGDALENO M. PEA, Filipino, of legal
age, with address at Brgy. Ubay, Pulupandan, Negros
Occidental, after having been sworn in accordance
with law hereby depose and state:
1. I am the Plaintiff in Civil Case
No. 754 pending with the Regional Trial Court of
Bago City entitled Atty. Magdaleno M. Pea v. Urban
Bank, et al Impleaded therein as defendants of the
board of the bank, namely, Teodoro Borlongan,
Delfin Gonzales, Jr., Benjamin De Leon, P. Siervo
Dizon, Eric Lee, Ben Lim Jr., Corazon Bejasa and
Arturo Manuel.(underlining ours)
2. I filed the said case to collect
my fees as agent of Urban Bank, Inc.(hereinafter
referred to as the bank) in ridding a certain parcel of
land in Pasay City of squatters and intruders. A
certified true copy of the Complaint in the said case
is hereto attached as Annex A.
3. In the Motion to Dismiss dated
12 March 1996 (a certified true copy of which is
attached as Annex B), Answer dated 28 October
1996 (Annex C), and Pre-Trial Brief dated 28
January 1997 (Annex D) filed by the bank and the
respondent members of the board, the said
respondents used as evidence the following
documents:
a. Letter dated 19 December 1994 supposedly
signed by a certain Herman Ponce and Julie Abad
for Isabela Sugar Company (ISC) (a copy of which
is attached as Annex E), which states:
December 19, 1994
Urban Bank
Urban Avenue, Makati
Metro Manila
Gentlemen:
This has reference to your property located among
Roxas Boulevard, Pasay City which you purchased
from Isabela Sugar Company under a Deed of
Absolute Sale executed on December 1, 1994.
In line with our warranties as the Seller of the said
property and our undertaking to deliver to you the
full and actual possession and control of said
property, free from tenants, occupants or squatters
and from any obstruction or impediment to the free
use and occupancy of the property and to prevent the
former tenants or occupants from entering or
returning to the premises. In view of the transfer of
ownership of the property to Urban Bank, it may be
necessary for Urban Bank to appoint Atty. Pea
likewise as its authorized representative for purposes
of holding/maintaining continued possession of the
said property and to represent Urban Bank in any
court action that may be instituted for the
abovementioned purposes.
It is understood that any attorneys fees, cost of
litigation and any other charges or expenses that may
be incurred relative to the exercise by Atty. Pea of
his abovementioned duties shall be for the account
of Isabela Sugar Company and any loss or damage
that may be incurred to third parties shall be
answerable by Isabela Sugar Company.
Very truly yours,
Isabela Sugar Company
By:
HERMAN PONCE
JULIE ABAD
b. Memorandum dated 7 December 1994 supposedly
executed by a certain Marilyn Ong on behalf of ISC,
a copy of which is hereto attached as annex F, which
states:
December 7, 1994
To: ATTY. CORA BEJASA
From: MARILYN G. ONG
RE: ISABELA SUGAR CO., INC.
Atty. Magdaleno M. Pea, who has been
assigned by Isabela Sugar Company inc. to take
charge of inspecting the tenants would like to
request an authority similar to this from the Bank to
new owners. Can you please issue something like
this today as he (unreadable) this.
b. Letter dated 9 December 1994
supposedly executed by the same Marilyn Ong, a
copy of which is hereto attached as Annex G, which
states:
December 9, 1994
Atty. Ted Borlongan
URBAN BANK OF THE PHILIPPINES
MAKATI, METRO MANILA
Attention: Mr. Ted Borlongan
Dear Mr. Borlongan
I would like to request for an authority from Urban
Bank per attached immediately as the tenants are
questioning authority of the people who are helping
us to take possession of the property.
Marilyn Ong
 c. Memorandum dated 20 November
1994, copy of which is attached as annex H, which
states:
MEMORANDUM
To: Atty. Magadaleno M. Pea
Director
From: Enrique C. Montilla III
President
Date: 20 November 1994
You are hereby directed to recover and take
possession of the property of the corporation situated
at Roxas Boulevard covered by TCT No. 5382 of the
Registry of Deeds for Pasay City, immediately upon
the expiration of the contract of lease over the said
property on 29 November 1994. For this purpose,
you are authorized to engage the services of security
guards to protect the property against intruders. You
may also engage the services of a lawyer in case
there is a need to go to court to protect the said
property of the corporation. In addition, you may
take whatever steps or measures are necessary to
ensure our continued possession of the property.
ENRIQUE C. MONTILLA III
President
4. The respondent member of the board of the
bank used and introduced the aforestated
documents as evidence in the civil case knowing
that the same are falsified. They used thae said
documents to justify their refusal to pay my
agents fees, to my damage and prejudice.
5. The 19 December 1994 letter (Annex E) is a
falsified document, in that the person who
supposedly executed the letter on behalf of ISC,
a certain Herman Ponce and Julie Abad did not
actually affix their signatures on the document.
The execution of the letter was merely simulated
by making it appear that Ponce and Abad
executed the letter on behalf of ISC when they
did not in fact do so.
6. No persons by the name of Herman Ponce and
Julie Abad were ever stockholders, officers,
employees or representatives of ISC. In the
letter, Herman Ponce was represented to be the
President of ISC and Julie Abad, the Corporate
Secretary. However, as of 19 December 1994,
the real President of plaintiff was Enrique
Montilla, III and Cristina Montilla was the
Corporate Secretary. A copy of the Minutes of
the Regular Meeting of ISC for the year 1994,
during which Montilla, et al. Were elected is
hereto attached as Annex I. On the otherhand, a
list of the stockholders of ISC on or about the
time of the transaction is attached as Annex J.
7. The same holds true with respect to the
Memorandum dated 7 December 1994 and athe
letter dated 9 December 1994 allegedly written
by a ceratin Marilyn Ong. Nobody by the said
name was ever a stockholder of ISC.
 8. Lastly, with respect to the supposed
Memorandum issued by Enrique Montilla, III
his signature thereon was merely forged by
respondents. Enrique Montilla III, did not affix
his signature on any such document.
9. I am executing this affidavit for the purpose of
charging Teodoro C. Borlongan, Corazon M.
Bejasa and Arturo E. Manuel, Delfin C.
Gonzales Jr., Benjamin L. De Leon, P. Siervo H.
Dizon and Eric Lee, with the crime of use of
falsified documents under Artilce 172, paragraph
2, of the Revised Penal Code.(underlining ours)
10. I am likewise executing this affidavit for
whatever legal purpose it may serve.
FURTHER AFFIANT SAYETH NAUGHT.
Sgd.
MAGDALENO M. PEA
It is evident that in the affidavit-complaint, specifically in
paragraph 1, respondent merely introduced and identified the board
of the bank, namely, Teodoro Borlongan, Jr., Delfin Gonzales, Jr.,
Benjamin De Leon, P. Siervo Dizon, Eric Lee, Ben Lim, Jr., Corazon
Bejasa and Arturo Manuel, Sr. However, in the accusatory portion of
the complaint which is paragraph number 9, Mr. Ben Lim, Jr. was
not included among those charged with the crime of use of falsified
documents under Article 172, paragraph 2, of the Revised Penal
Code. The omission indicates that respondent did not intend to
criminally implicate Mr. Ben Lim, Jr., even as he was acknowledged
to be a member of the board. And there was no explanation in the
Resolution and Information by the City Prosecutor why Mr. Ben
Lim, Jr. was included. Moreover, as can be gleaned from the body of
the complaint and the specific averments therein, Mr. Ben Lim, Jr.
was never mentioned.
The City Prosecutor should have cautiously reviewed the
complaint to determine whether there were inconsistencies which
ought to have been brought to the attention of the respondent or, on
his own, considered for due evaluation. It is a big mistake to bring a
man to trial for a crime he did not commit.
Prosecutors are endowed with ample powers in order that
they may properly fulfill their assigned role in the administration of
justice. It should be realized, however, that when a man is hailed to
court on a criminal charge, it brings in its wake problems not only for
the accused but for his family as well. Therefore, it behooves a
prosecutor to weigh the evidence carefully and to deliberate thereon
to determine the existence of a prima facie case before filing the
information in court. Anything less would be a dereliction of duty.29
[29]
Atty. Pea, in his Second Manifestation30[30] dated 16 June
1999, averred that petitioners, including Mr. Ben Lim, Jr., were
already estopped from raising the fact that Mr. Ben Lim, Jr. was not a
member of the board of directors of Urban Bank, as the latter
participated and appeared through counsel in Civil Case No. 754
without raising any opposition. However, this does not detract from
the fact that the City Prosecutor, as previously discussed, did not
carefully scrutinize the complaint of Atty. Pea, which did not charge
Mr. Ben Lim, Jr. of any crime.
What tainted the procedure further was that the Judge issued
a warrant for the arrest of the petitioners, including, Mr. Ben Lim, Jr.
despite the filing of the Omnibus Motion to Quash, Recall Warrants
29
30
of Arrest and/or For Reinvestigation raising among others the issue
that Mr. Ben Lim, Jr., was not even a member of the board of
directors. With the filing of the motion, the judge is put on alert that
an innocent person may have been included in the complaint. In the
Order31[31] dated 13 November 1998, in denying the motion to
quash, Judge Primitivo Blanca ruled that:
Courts in resolving a motion to quash cannot
consider facts contrary to those alleged in the
information or which do not appear on the face of
the information because said motion is hypothethical
admission of the facts alleged in the information x x
x. (citations omitted.)
We cannot accept as mere oversight the mistake of
respondent judge since it was at the expense of liberty. This cannot
be condoned.
In the issuance of a warrant of arrest, the mandate of the
Constitution is for the judge to personally determine the existence of
probable cause:
Section 2, Article III of the Constitution provides:
Section 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
31
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.
Corollary thereto, Section 9(b) of the 1985 Rules of Criminal
Procedure provides:
Sec. 9. Cases not falling under the original
jurisdiction of the Regional Trial Courts nor covered
by the Rule on Summary Procedure.
(a) x x x.
(b) Where filed directly with the Municipal Trial
Court. If the complaint or information is filed
directly with the Municipal Trial Court, the
procedure provided for in Section 3(a) of this Rule
shall likewise be observed. If the judge finds no
sufficient ground to hold the respondent for trial, he
shall dismiss the complaint or information.
Otherwise, he shall issue a warrant of arrest after
personally examining in writing and under oath the
complainant and his witnesses in the form of
searching questions and answers.
Enshrined in our Constitution is the rule that [n]o x x x
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 x x x the persons x x x to be seized. 32[32]
Interpreting the words personal determination, we said in Soliven v.
32
Makasiar33[33] that it does not thereby mean that judges are obliged
to conduct the personal examination of the complainant and his
witnesses themselves. To require thus would be to unduly laden them
with preliminary examinations and investigations of criminal
complaints instead of concentrating on hearing and deciding cases
filed before them. Rather, what is emphasized merely is the exclusive
and personal responsibility of the issuing judge to satisfy himself as
to the existence of probable cause. To this end, he may: (a)
personally evaluate the report and the supporting documents
submitted by the prosecutor regarding the existence of probable
cause and, on the basis thereof, issue a warrant of arrest; or (b) if on
the basis thereof he finds no probable cause, disregard the
prosecutor's report and require the submission of supporting
affidavits of witnesses to aid him in determining its existence. What
he is never allowed to do is to follow blindly the prosecutor's bare
certification as to the existence of probable cause. Much more is
required by the constitutional provision. Judges have to go over the
report, the affidavits, the transcript of stenographic notes if any,
and other documents supporting the prosecutor's certification.
Although the extent of the judge's personal examination depends on
the circumstances of each case, to be sure, he cannot just rely on
the bare certification alone but must go beyond it. This is because
the warrant of arrest issues not on the strength of the certification
standing alone but because of the records which sustain it. 34[34] He
should even call for the complainant and the witnesses to answer the
court's probing questions when the circumstances warrant. 35[35]
33
34
35
An arrest without a probable cause is an unreasonable
seizure of a person, and violates the privacy of persons which ought
not to be intruded by the State.36[36]
Measured against the constitutional mandate and established
rulings, there was here a clear abdication of the judicial function and
a clear indication that the judge blindly followed the certification of a
city prosecutor as to the existence of probable cause for the issuance
of a warrant of arrest with respect to all of the petitioners. The
careless inclusion of Mr. Ben Lim, Jr., in the warrant of arrest gives
flesh to the bone of contention of petitioners that the instant case is a
matter of persecution rather than prosecution. 37[37] On this ground,
this Court may enjoin the criminal cases against petitioners. As a
general rule, criminal prosecutions cannot be enjoined. However,
there are recognized exceptions which, as summarized in Brocka v.
Enrile,38[38] are:
a. To afford adequate protection to the constitutional
rights of the accused;39[39]
b. When necessary for the orderly administration of
justice or to avoid oppression or multiplicity of
actions;40[40]
c. When there is a prejudicial question which is sub
judice;41[41]
d. When the acts of the officer are without or in
excess of authority;42[42]
36
37
38
39
40
41
42
 2. That the false document is embraced in
e. Where the prosecution is under an invalid law, Article 171 or in any subdivisions Nos. 1 or
ordinance or regulation;43[43] 2 of Article 172.
3. That he introduced said document in
f. When double jeopardy is clearly apparent; 44[44] evidence in any judicial proceeding.49[49]

g. Where the court had no jurisdiction over the

offense;45[45]
The falsity of the document and the defendants knowledge of
h. Where it is a case of persecution rather than its falsity are essential elements of the offense. The Office of the City
prosecution;46[46] Prosecutor filed the Informations against the petitioners on the basis
of the Complaint-Affidavit of respondent Atty. Pea, attached to
i. Where the charges are manifestly false and which were the documents contained in the Motion to Dismiss filed
motivated by the lust for vengeance;47[47] and by the petitioners in Civil Case No. 754. Also included as
attachments to the complaint were the Answers, Pre-Trial Brief, the
j. When there is clearly no prima facie case against alleged falsified documents, copy of the regular meetings of ISCI
the accused and a motion to quash on that ground during the election of the Board of Directors and the list of ISCI
has been denied.48[48] Stockholders.50[50] Based on these documents and the complaint-
affidavit of Atty. Pea, the City Prosecutor concluded that probable
cause for the prosecution of the charges existed. On the strength of
the same documents, the trial court issued the warrants of arrest.
THE SUBSTANTIVE ASPECT:
This Court, however, cannot find these documents sufficient
Petitioners were charged with violation of par. 2, Article 172 to support the existence of probable cause.
of the Revised Penal Code or Introduction of Falsified Document in
a judicial proceeding. The elements of the offense are as follows: Probable cause is such set of facts and circumstances as
1. That the offender knew that a document would lead a reasonably discreet and prudent man to believe that the
was falsified by another person. offense charged in the Information or any offense included therein
has been committed by the person sought to be arrested. In
determining probable cause, the average man weighs the facts and
43
circumstances without restoring to the calibrations of the rules of
44 evidence of which he has no technical knowledge. He relies on
45 common sense. A finding of probable cause needs only to rest on
46
47 49
48 50
evidence showing that, more likely than not, a crime has been
committed and that it was committed by the accused. Probable cause
demands more than suspicion; it requires less than evidence that
would justify conviction.51[51]
As enunciated in Baltazar v. People,52[52] the task of the
presiding judge when the Information is filed with the court is first
and foremost to determine the existence or non-existence of probable
cause for the arrest of the accused.
The purpose of the mandate of the judge to first determine
probable cause for the arrest of the accused is to insulate from the
very start those falsely charged with crimes from the tribulations,
expenses and anxiety of a public trial.53[53]
We do not see how it can be concluded that the documents
mentioned by respondent in his complaint-affidavit were falsified. In
his complaint, Atty. Pea stated that Herman Ponce, Julie Abad and
Marilyn Ong, the alleged signatories of the questioned letters, did not
actually affix their signatures therein; and that they were not actually
officers or stockholders of ISCI. 54[54] He further claimed that
Enrique Montillas signature appearing in another memorandum
addressed to respondent was forged.55[55] These averments are mere
assertions which are insufficient to warrant the filing of the
complaint or worse the issuance of warrants of arrest. These
averments cannot be considered as proceeding from the personal
knowledge of herein respondent who failed to, basically, allege that
he was present at the time of the execution of the documents. Neither
was there any mention in the complaint-affidavit that herein
respondent was familiar with the signatures of the mentioned
51
52
53
54
55
signatories to be able to conclude that they were forged. What Atty.
Pea actually stated were but sweeping assertions that the signatories
are mere dummies of ISCI and that they are not in fact officers,
stockholders or representatives of the corporation. Again, there is no
indication that the assertion was based on the personal knowledge of
the affiant.
The reason for the requirement that affidavits must be based
on personal knowledge is to guard against hearsay evidence. A
witness, therefore, may not testify as what he merely learned from
others either because he was told or read or heard the same. Such
testimony is considered hearsay and may not be received as proof of
the truth of what he has learned.56[56] Hearsay is not limited to oral
testimony or statements; the general rule that excludes hearsay as
evidence applies to written, as well as oral statements. 57[57]
The requirement of personal knowledge should have been
strictly applied considering that herein petitioners were not given the
opportunity to rebut the complainants allegation through counter-
affidavits.
Quite noticeable is the fact that in the letter dated 19
December 1994 of Herman Ponce and Julie Abad, neither of the two
made the representation that they were the president or secretary of
ISCI. It was only Atty. Pea who asserted that the two made such
representation. He alleged that Marilyn Ong was never a stockholder
of ISCI but he did not present the stock and transfer book of ISCI.
And, there was neither allegation nor proof that Marilyn Ong was not
connected to ISCI in any other way. Moreover, even if Marilyn Ong
was not a stockholder of ISCI, such would not prove that the
documents she signed were falsified.
56
57
 The Court may not be compelled to pass upon the the court a quo as to the existence of probable cause. The criminal
correctness of the exercise of the public prosecutors function without complaint against the petitioners should be dismissed.
any showing of grave abuse of discretion or manifest error in his
findings.58[58] Considering, however, that the prosecution and the WHEREFORE, the petition is hereby GRANTED. The
court a quo committed manifest errors in their findings of probable Decision of the Court of Appeals dated 20 June 2000, in CA-G.R. SP
cause, this Court therefore annuls their findings. No. 49666, is REVERSED and SET ASIDE. The Temporary
Restraining Order dated 2 August 2000 is hereby made permanent.
Our pronouncement in Jimenez v. Jimenez59[59] as reiterated Accordingly, the Municipal Trial Court in Cities, Negros Occidental,
in Baltazar v. People is apropos: Bago City, is hereby DIRECTED to DISMISS Criminal Case Nos.
It is x x x imperative upon the fiscal or the judge as 6683, 6684, 6685 and 6686.
the case may be, to relieve the accused from the pain
of going through a trial once it is ascertained that the
evidence is insufficient to sustain a prima facie case
or that no probable cause exists to form a sufficient SO ORDERED.
belief as to the guilt of the accused. Although there
is no general formula or fixed rule for the
determination of probable cause since the same must
be decided in the light of the conditions obtaining in
given situations and its existence depends to a large
degree upon the finding or opinion of the judge
conducting the examination, such a finding should AAA,* G.R. No. 171465
not disregard the facts before the judge nor run Petitioner,
counter to the clear dictates of reasons. The judge or Present:
fiscal, therefore, should not go on with the
prosecution in the hope that some credible evidence - versus - Ynares-Santiago, J.
might later turn up during trial for this would be a (Chairperson),
flagrant violation of a basic right which the courts Austria-
are created to uphold. It bears repeating that the Martinez,
judiciary lives up to its mission by visualizing and Chico-Nazario, and
not denigrating constitutional rights. So it has been Nachura, JJ.
before. It should continue to be so. HON. ANTONIO A. CARBONELL,
in his capacity as Presiding Judge,
On the foregoing discussion, we find that the Court of Branch 27, Regional Trial Court, Promulgated:
Appeals erred in affirming the findings of the prosecutor as well as San Fernando City, La Union and
ENGR. JAIME O. ARZADON,
58
59 *
 Respondents. June 8, 2007
x for rape against Arzadon.
-----------------------------------------------------------------------------------
----- x
DECISION
YNARES-SANTIAGO, J.:
This petition for certiorari60[1] assails the December 16,
61
2005 [2] Order of the Regional Trial Court, Branch 27, San
Fernando, La Union in Criminal Case No. 6983, dismissing the rape
case filed against private respondent Jaime O. Arzadon for lack of
probable cause; and its February 3, 2006 62[3] Order denying
petitioners motion for reconsideration.
Petitioner worked as a secretary at the Arzadon Automotive
and Car Service Center from February 28, 2001 to August 16, 2001.
On May 27, 2001 at about 6:30 p.m., Arzadon asked her to deliver a
book to an office located at another building but when she returned
to their office, the lights had been turned off and the gate was closed.
Nevertheless, she went inside to get her handbag.
On her way out, she saw Arzadon standing beside a parked
van holding a pipe. He told her to go near him and upon reaching his
side, he threatened her with the pipe and forced her to lie on the
pavement. He removed her pants and underwear, and inserted his
penis into her vagina. She wept and cried out for help but to no avail
because there was nobody else in the premises.
Petitioner did not report the incident because Arzadon
threatened to kill her and her family. But when she discovered that
60
61
62
she was pregnant as a consequence of the rape, she narrated the
incident to her parents. On July 24, 2002, petitioner filed a complaint
On September 16, 2002, Assistant City Prosecutor Imelda
Cosalan issued a Resolution63[4] finding probable cause and
recommending the filing of an information for rape. Arzadon moved
for reconsideration and during the clarificatory hearing held on
October 11, 2002, petitioner testified before the investigating
prosecutor. However, she failed to attend the next hearing hence, the
case was provisionally dismissed.
On March 5, 2003, petitioner filed another Affidavit-
Complaint64[5] with a comprehensive account of the alleged rape
incident. The case was assigned to 2nd Assistant Provincial
Prosecutor Georgina Hidalgo. During the preliminary investigation,
petitioner appeared for clarificatory questioning. On June 11, 2003,
the investigating prosecutor issued a Resolution 65[6] finding that a
prima facie case of rape exists and recommending the filing of the
information.
Arzadon moved for reconsideration and requested that a
panel of prosecutors be constituted to review the case. Thus, a panel
of prosecutors was created and after the clarificatory questioning, the
panel issued on October 13, 2003 a Resolution 66[7] finding probable
cause and denying Arzadons motion for reconsideration.
63
64
65
66
 An Information67[8] for rape was filed before the Regional
Trial Court, Branch 27, San Fernando, La Union on February 6,
2004, docketed as Criminal Case No. 6415. Thereafter, Arzadon filed
a Motion to Hold in Abeyance All Court Proceedings Including the
Issuance of a Warrant of Arrest and to Determine Probable Cause for
the Purpose of Issuing a Warrant of Arrest. 68[9] On March 18, 2004,
respondent Judge Antonio A. Carbonell granted the motion and
directed petitioner and her witnesses to take the witness stand for
determination of probable cause.
Arzadon also appealed the Resolution of the panel of
prosecutors finding probable cause before the Department of Justice.
On July 9, 2004, then Acting Secretary of Justice Merceditas
Gutierrez found no probable cause and directed the withdrawal of the
Information in Criminal Case No. 6415.
Upon motion for reconsideration by petitioner, however,
Secretary of Justice Raul Gonzales reversed the July 9, 2004
Resolution and issued another Resolution69[11] finding that probable
cause exists. Thus, a new Information 70[12] for rape was filed against
Arzadon docketed as Criminal Case No. 6983.
Consequently, Arzadon filed an Urgent Motion for Judicial
Determination of Probable Cause for the Purpose of Issuing a
Warrant of Arrest.71[13] In an Order dated August 11, 2005,
respondent Judge Carbonell granted the motion and directed
petitioner and her witnesses to take the witness stand.
Instead of taking the witness stand, petitioner filed a motion
for reconsideration claiming that the documentary evidence
67
68
69
70
71
sufficiently established the existence of probable cause. Pending
resolution thereof, she likewise filed a petition 72[14] with this Court
for the transfer of venue of Criminal Case No. 6983. The case was
docketed as Administrative Matter No. 05-12-756-RTC and entitled
Re: Transfer of Venue of Criminal Case No. 6983, formerly Criminal
Case No. 6415, from the Regional Trial Court, Branch 27, San
Fernando City, La Union, to any Court in Metro Manila.
In a Resolution73[15] dated January 18, 2006, the Court
granted petitioners request for transfer of venue. The case was raffled
to the Regional Trial Court of Manila, Branch 25, and docketed as
Criminal Case No. 06-242289. However, the proceedings have been
suspended pending the resolution of this petition.
Meanwhile, on December 16, 2005, respondent Judge
Carbonell issued the assailed Order dismissing Criminal Case No.
6983 for lack of probable cause. Petitioners motion for
reconsideration was denied hence, this petition.
Petitioner raises the following issues:
I
RESPONDENT JUDGE ACTED WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO
LACK OF OR IN EXCESS OF JURISDICTION
WHEN IT GRANTED THE MOTION FOR
DETERMINATION OF PROBABLE CAUSE
FILED BY THE PRIVATE RESPONDENT AND
THE SUBSEQUENT DENIAL OF THE MOTION
FOR RECONSIDERATION
II
72
73
 RESPONDENT JUDGE COMMITTED FURTHER
ACTS CONSTITUTING GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR IN
EXCESS OF JURISDICTION WHEN IT
ORDERED THE COMPLAINANT AND
WITNESSES TO TAKE THE STAND FOR THE
PURPOSE OF DETERMINING PROBABLE
CAUSE
III
RESPONDENT JUDGE ACTED WITH GRAVE
ABUSE OF DISCRETION WHEN HE REFUSED
TO INHIBIT FROM FURTHER HANDLING THE
CASE DESPITE WHISPERS OF DOUBT ON HIS
BIAS AND PARTIALITY
IV
RESPONDENT JUDGE ACTED WITH GRAVE
ABUSE OF DISCRETION WHEN IT ISSUED
THE ORDER OF FEBRUARY 3, 2006, DENYING
THE MOTION FOR RECONSIDERATION,
DESPITE THE SUPREME COURT RESOLUTION
OF JANUARY 18, 2006, GRANTING THE
TRANSFER OF VENUE
Petitioner contends that the judge is not required to
personally examine the complainant and her witnesses in satisfying
himself of the existence of probable cause for the issuance of a
warrant of arrest. She argues that respondent Judge Carbonell should
have taken into consideration the documentary evidence as well as
the transcript of stenographic notes which sufficiently established the
existence of probable cause.
Arzadon claims that the petition should be dismissed
outright for being the wrong mode of appeal, it appearing that the
issues raised by petitioner properly fall under an action for certiorari
under Rule 65, and not Rule 45, of the Rules of Court.
Respondent Judge Carbonell argues in his Comment 74[17]
that the finding of probable cause by the investigating prosecutor is
not binding or obligatory, and that he was justified in requiring
petitioner and her witnesses to take the witness stand in order to
determine probable cause.
The issues for resolution are 1) whether the petition should
be dismissed for being the wrong mode of appeal; and 2) whether
respondent Judge Carbonell acted with grave abuse of discretion in
dismissing Criminal Case No. 6983 for lack of probable cause.
The petition has merit.
A petition for review on certiorari under Rule 45 is distinct
from a petition for certiorari under Rule 65 in that the former brings
up for review errors of judgment while the latter concerns errors of
jurisdiction or grave abuse of discretion amounting to lack or excess
of jurisdiction. Grave abuse of discretion is not an allowable ground
under Rule 45. However, a petition for review on certiorari
under Rule 45 may be considered a petition for certiorari under Rule
65 where it is alleged that the respondents abused their discretion in
their questioned actions, as in the instant case. 75[18] While petitioner
claims to have brought the instant action under Rule 45, the grounds
raised herein involve an alleged grave abuse of discretion on the part
of respondent Judge Carbonell. Accordingly, the Court shall treat the
same as a petition for certiorari under Rule 65.
74
75
 However, we must point out the procedural error committed
by petitioner in directly filing the instant petition before this Court
instead of the Court of Appeals, thereby violating the principle of
judicial hierarchy of courts. It is well-settled that although the
Supreme Court, Court of Appeals and the Regional Trial Courts have
concurrent jurisdiction to issue writs of certiorari, prohibition,
mandamus, quo warranto, habeas corpus and injunction, such
concurrence does not give the petitioner unrestricted freedom of
choice of court forum.76[19] In this case, however, the gravity of the
offense charged and the length of time that has passed since the filing
of the complaint for rape, compel us to resolve the present
controversy in order to avoid further delay.
We thus proceed to the issue of whether respondent Judge
Carbonell acted with grave abuse of discretion in dismissing
Criminal Case No. 6983 for lack of probable cause.
We rule in the affirmative.
Respondent Judge Carbonell dismissed Criminal Case No.
6983 for lack of probable cause on the ground that petitioner and her
witnesses failed to comply with his orders to take the witness stand.
Thus
In RESUME therefore, as indubitably borne
out by the case record and considering that the
Private Prosecutor, despite several admonitions
contumaciously nay contemptuously refused to
comply/obey this Courts Orders of March 18, 2004,
August 11, 2005 and eight (8) other similar Orders
issued in open Court that directed the
complainant/witnesses to take the witness stand to
76
be asked probing/clarificatory questions consonant
with cited jurisprudential rulings of the Supreme
Court, this Court in the exercise of its discretion and
sound judgment finds and so holds that NO probable
cause was established to warrant the issuance of an
arrest order and the further prosecution of the instant
case.
Record also shows in no unclear terms that
in all the scheduled hearings of the case, the accused
had always been present. A contrario, the private
complainant failed to appear during the last four (4)
consecutive settings despite due notice without
giving any explanation, which to the mind of the
Court may indicate an apparent lack of interest in the
further prosecution of this case. That failure may
even be construed as a confirmation of the Defenses
contention reflected in the case record, that the only
party interested in this case is the Private prosecutor,
prodded by the accuseds alleged hostile siblings to
continue with the case.
WHEREFORE, premises considered, for
utter lack of probable cause, the instant case is
hereby ordered DISMISSED.77[21]
He claims that under Section 2, Article III of the 1987 Constitution,
no 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.
However, in the leading case of Soliven v. Makasiar,78[22]
the Court explained that this constitutional provision does not
mandatorily require the judge to personally examine the complainant
77
78
and her witnesses. Instead, he may opt to personally evaluate the
report and supporting documents submitted by the prosecutor or he
may disregard the prosecutors report and require the submission of
supporting affidavits of witnesses. Thus:
The addition of the word personally after the
word determined and the deletion of the grant of
authority by the 1973 Constitution to issue warrants
to other responsible officers as may be authorized by
law, has apparently convinced petitioner Beltran that
the Constitution now requires the judge to personally
examine the complainant and his witnesses in his
determination of probable cause for the issuance of
warrants of arrest. This is not an accurate
interpretation.
What the Constitution underscores is the
exclusive and personal responsibility of the issuing
judge to satisfy himself of the existence of probable
cause. In satisfying himself of the existence of
probable cause for the issuance of a warrant of
arrest, the judge is not required to personally
examine the complainant and his witnesses.
Following established doctrine and procedure, he
shall: (1) personally evaluate the report and the
supporting documents submitted by the fiscal
regarding the existence of probable cause and, on the
basis thereof, issue a warrant of arrest; or (2) if on
the basis thereof he finds no probable cause, he may
disregard the fiscals report and require the
submission of supporting affidavits of witnesses to
aid him in arriving at a conclusion as to the
existence of probable cause.
Sound policy dictates this procedure,
otherwise judges would by unduly laden with the
preliminary examination and investigation of
criminal complaints instead of concentrating on
hearing and deciding cases filed before their courts. 79
[23]
We reiterated the above ruling in the case of Webb v. De
Leon,80[24] where we held that before issuing warrants of arrest,
judges merely determine the probability, not the certainty, of guilt of
an accused. In doing so, judges do not conduct a de novo hearing to
determine the existence of probable cause. They just personally
review the initial determination of the prosecutor finding a probable
cause to see if it is supported by substantial evidence.
It is well to remember that there is a distinction between the
preliminary inquiry which determines probable cause for the
issuance of a warrant of arrest and the preliminary investigation
proper which ascertains whether the offender should be held for trial
or be released. The determination of probable cause for purposes of
issuing the warrant of arrest is made by the judge. The preliminary
investigation proper whether or not there is reasonable ground to
believe that the accused is guilty of the offense charged is the
function of the investigating prosecutor.
True, there are cases where the circumstances may call for
the judges personal examination of the complainant and his
witnesses. But it must be emphasized that such personal examination
is not mandatory and indispensable in the determination of probable
cause for the issuance of a warrant of arrest. The necessity arises
only when there is an utter failure of the evidence to show the
existence of probable cause. 81[27] Otherwise, the judge may rely on
the report of the investigating prosecutor, provided that he likewise
evaluates the documentary evidence in support thereof.
79
80
81
 Indeed, what the law requires as personal determination on
the part of the judge is that he should not rely solely on the report of
the investigating prosecutor. In Okabe v. Gutierrez,82[28] we stressed
that the judge should consider not only the report of the investigating
prosecutor but also the affidavit and the documentary evidence of the
parties, the counter-affidavit of the accused and his witnesses, as well
as the transcript of stenographic notes taken during the preliminary
investigation, if any, submitted to the court by the investigating
prosecutor upon the filing of the Information. 83[29] If the report,
taken together with the supporting evidence, is sufficient to sustain a
finding of probable cause, it is not compulsory that a personal
examination of the complainant and his witnesses be conducted.
In this case, respondent Judge Carbonell dismissed Criminal
Case No. 6983 without taking into consideration the June 11, 2003
Resolution of 2nd Assistant Provincial Prosecutor Georgina Hidalgo,
the October 13, 2003 Resolution of the panel of prosecutors, and the
July 1, 2005 Resolution of the Department of Justice, all of which
sustain a finding of probable cause against Arzadon. Moreover, he
failed to evaluate the evidence in support thereof. Respondent judges
finding of lack of probable cause was premised only on the
complainants and her witnesses absence during the hearing
scheduled by the respondent judge for the judicial determination of
probable cause.
Petitioner narrated in detail the alleged rape incident both in
her Sinumpaang Salaysay84[30] dated July 24, 2002 and Complaint-
Affidavit85[31] dated March 5, 2003. She attended several
clarificatory hearings that were conducted in the instant case. The
transcript of stenographic notes86[32] of the hearing held on October
82
83
84
85
86
11, 2002 shows that she positively identified Arzadon as her
assailant, and the specific time and place of the incident. She also
claimed that she bore a child as a result of the rape and, in support of
her contentions, presented the child and her birth certificate as
evidence. In contrast, Arzadon merely relied on the defense of alibi
which is the weakest of all defenses.
After a careful examination of the records, we find that there
is sufficient evidence to establish probable cause. The gravamen of
rape is the carnal knowledge by the accused of the private
complainant under any of the circumstances provided in Article 335
of the Revised Penal Code, as amended. 87[33] Petitioner has
categorically stated that Arzadon raped her, recounting her ordeal in
detail during the preliminary investigations. Taken with the other
evidence presented before the investigating prosecutors, such is
sufficient for purposes of establishing probable cause. It is well-
settled that a finding of probable cause need not be based on clear
and convincing evidence beyond reasonable doubt. Probable cause is
that which engenders a well-founded belief that a crime has been
committed and that the respondent is probably guilty thereof and
should be held for trial. It does not require that the evidence would
justify conviction.
It is clear therefore that respondent Judge Carbonell gravely
abused his discretion in dismissing Criminal Case No. 6983 for lack
of probable cause on the ground that petitioner and her witnesses
failed to take the witness stand. Considering there is ample evidence
and sufficient basis on record to support a finding of probable cause,
it was unnecessary for him to take the further step of examining the
petitioner and her witnesses. Moreover, he erred in holding that
petitioners absences in the scheduled hearings were indicative of a
lack of interest in prosecuting the case. In fact, the records show that
she has relentlessly pursued the same.
87
 Needless to say, a full-blown trial is to be preferred to ferret
out the truth.88[35] As it were, the incidents of this case have been
pending for almost five years without having even passed the
preliminary investigation stage. Suffice to say that the credibility of
petitioner may be tested during the trial where the respective
allegations and defenses of the complainant and the accused are
properly ventilated. It is only then that the truth as to Arzadons
innocence or guilt can be determined.
G.R. No. 123595. December 12, 1997]
WHEREFORE, the petition is GRANTED. The Orders of
the Regional Trial Court, Branch 27, San Fernando, La Union dated SAMMY MALACAT y MANDAR, petitioner, vs. COURT OF
December 16, 2005, and February 3, 2006 dismissing Criminal Case APPEALS, and PEOPLE OF THE PHILIPPINES,
No. 6983 for lack of probable cause are REVERSED and SET respondents.
ASIDE, and the Information in the said case is hereby
REINSTATED. The Regional Trial Court, Branch 25, Manila is
DECISION
DIRECTED to take cognizance of the case and let the records
thereof be REMANDED to the said court for further proceedings.
DAVIDE, JR., J.:
SO ORDERED.
In an Information [1] filed on 30 August 1990, in Criminal Case
i

No. 90-86748 before the Regional Trial Court (RTC) of

Manila, Branch 5, petitioner Sammy Malacat y Mandar was
charged with violating Section 3 of Presidential Decree No.
1866, [2] as follows:
ii

That on or about August 27, 1990, in the City of Manila,

Philippines, the said accused did then and there willfully,
unlawfully and knowingly keep, possess and/or acquire a hand
grenade, without first securing the necessary license and/or
permit therefor from the proper authorities.

At arraignment [3] on 9 October 1990, petitioner, assisted by

iii

counsel de oficio, entered a plea of not guilty.

88
At pre-trial on 11 March 1991, petitioner admitted the
existence of Exhibits A, A-1, and A-2, [4] while the prosecution
iv
admitted that the police authorities were not armed with a
search warrant nor warrant of arrest at the time they arrested
petitioner. [5]
v
At trial on the merits, the prosecution presented the following
police officers as its witnesses: Rodolfo Yu, the arresting
officer; Josefino G. Serapio, the investigating officer; and
Orlando Ramilo, who examined the grenade.
Rodolfo Yu of the Western Police District, Metropolitan Police
Force of the Integrated National Police, Police Station No. 3,
Quiapo, Manila, testified that on 27 August 1990, at about 6:30
p.m., in response to bomb threats reported seven days earlier,
he was on foot patrol with three other police officers (all of
them in uniform) along Quezon Boulevard, Quiapo, Manila,
near the Mercury Drug store at Plaza Miranda. They chanced
upon two groups of Muslim-looking men, with each group,
comprised of three to four men, posted at opposite sides of the
corner of Quezon Boulevard near the Mercury Drug Store.
These men were acting suspiciously with [t]heir eyes moving
very fast. [6]
vi
Yu and his companions positioned themselves at strategic
points and observed both groups for about thirty minutes. The
police officers then approached one group of men, who then
fled in different directions. As the policemen gave chase, Yu
caught up with and apprehended petitioner. Upon searching
petitioner, Yu found a fragmentation grenade tucked inside
petitioners front waist line. [7] Yus companion, police officer
vii
Rogelio Malibiran, apprehended Abdul Casan from whom a .38
caliber revolver was recovered. Petitioner and Casan were then
brought to Police Station No. 3 where Yu placed an X mark at
the bottom of the grenade and thereafter gave it to his
commander. [8]
viii
On cross-examination, Yu declared that they conducted the foot
patrol due to a report that a group of Muslims was going to
explode a grenade somewhere in the vicinity of Plaza Miranda.
Yu recognized petitioner as the previous Saturday, 25 August
1990, likewise at Plaza Miranda, Yu saw petitioner and 2 others
attempt to detonate a grenade. The attempt was aborted when
Yu and other policemen chased petitioner and his companions;
however, the former were unable to catch any of the latter. Yu
further admitted that petitioner and Casan were merely
standing on the corner of Quezon Boulevard when Yu saw
them on 27 August 1990. Although they were not creating a
commotion, since they were supposedly acting suspiciously, Yu
and his companions approached them. Yu did not issue any
receipt for the grenade he allegedly recovered from petitioner.
ix
[9]
Josefino G. Serapio declared that at about 9:00 a.m. of 28
August 1990, petitioner and a certain Abdul Casan were
brought in by Sgt. Saquilla [10] for investigation. Forthwith,
x
Serapio conducted the inquest of the two suspects, informing
them of their rights to remain silent and to be assisted by
competent and independent counsel. Despite Serapios advice,
petitioner and Casan manifested their willingness to answer
questions even without the assistance of a lawyer. Serapio then
took petitioners uncounselled confession (Exh. E), there being
no PAO lawyer available, wherein petitioner admitted
possession of the grenade. Thereafter, Serapio prepared the
affidavit of arrest and booking sheet of petitioner and Casan.
Later, Serapio turned over the grenade to the Intelligence and
Special Action Division (ISAD) of the Explosive Ordnance
Disposal Unit for examination. [11]
xi
On cross-examination, Serapio admitted that he took
petitioners confession knowing it was inadmissible in
evidence. [12]
xii
Orlando Ramilo, a member of the Bomb Disposal Unit, whose
principal duties included, among other things, the examination
of explosive devices, testified that on 22 March 1991, he
received a request dated 19 March 1991 from Lt. Eduardo
Cabrera and PO Diosdado Diotoy for examination of a
grenade. Ramilo then affixed an orange tag on the subject
grenade detailing his name, the date and time he received the
specimen. During the preliminary examination of the grenade,
he [f]ound that [the] major components consisting of [a] high
filler and fuse assembly [were] all present, and concluded that
the grenade was [l]ive and capable of exploding. On even date,
he issued a certification stating his findings, a copy of which he
forwarded to Diotoy on 11 August 1991. [13]
xiii
Petitioner was the lone defense witness. He declared that he
arrived in Manila on 22 July 1990 and resided at the Muslim
Center in Quiapo, Manila. At around 6:30 in the evening of 27
August 1990, he went to Plaza Miranda to catch a breath of
fresh air. Shortly after, several policemen arrived and ordered
all males to stand aside. The policemen searched petitioner and
two other men, but found nothing in their possession. However,
he was arrested with two others, brought to and detained at
Precinct No. 3, where he was accused of having shot a police
officer. The officer showed the gunshot wounds he allegedly
sustained and shouted at petitioner [i]to ang tama mo sa akin.
This officer then inserted the muzzle of his gun into petitioners
mouth and said, [y]ou are the one who shot me. Petitioner
denied the charges and explained that he only recently arrived
in Manila. However, several other police officers mauled him,
hitting him with benches and guns. Petitioner was once again
searched, but nothing was found on him. He saw the grenade
only in court when it was presented. [14]
xiv
The trial court ruled that the warrantless search and seizure of
petitioner was akin to a stop and frisk, where a warrant and
seizure can be effected without necessarily being preceded by
an arrest and whose object is either to maintain the status quo
momentarily while the police officer seeks to obtain more
information. [15] Probable cause was not required as it was not
xv
certain that a crime had been committed, however, the situation
called for an investigation, hence to require probable cause
would have been premature. [16] The RTC emphasized that Yu
xvi
and his companions were [c]onfronted with an emergency, in
which the delay necessary to obtain a warrant, threatens the
destruction of evidence [17] and the officers [h]ad to act in
xvii
haste, as petitioner and his companions were acting
suspiciously, considering the time, place and reported cases of
bombing. Further, petitioners group suddenly ran away in
different directions as they saw the arresting officers approach,
thus [i]t is reasonable for an officer to conduct a limited search,
the purpose of which is not necessarily to discover evidence of
a crime, but to allow the officer to pursue his investigation
without fear of violence. [18]
xviii
The trial court then ruled that the seizure of the grenade from
petitioner was incidental to a lawful arrest, and since petitioner
[l]ater voluntarily admitted such fact to the police investigator
for the purpose of bombing the Mercury Drug Store, concluded
that sufficient evidence existed to establish petitioners guilt
beyond reasonable doubt.
In its decision [19] dated 10 February 1994 but promulgated on
xix
15 February 1994, the trial court thus found petitioner guilty of
the crime of illegal possession of explosives under Section 3 of
P.D. No. 1866, and sentenced him to suffer:
[T]he penalty of not less than SEVENTEEN (17) YEARS,
FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION
TEMPORAL, as minimum, and not more than THIRTY (30)
YEARS OF RECLUSION PERPETUA, as maximum.
On 18 February 1994, petitioner filed a notice of appeal [20]
indicating that he was appealing to this Court. However, the
record of the case was forwarded to the Court of Appeals
which docketed it as CA-G.R. CR No. 15988 and issued a
notice to file briefs. [21]
xxi
In his Appellants Brief xxii
[22] filed with the Court of Appeals,
petitioner asserted that:
1. THE LOWER COURT ERRED IN HOLDING THAT THE
SEARCH UPON THE PERSON OF ACCUSED-
APPELLANT AND THE SEIZURE OF THE ALLEGED
HANDGRENADE FROM HIM WAS AN APPROPRIATE
INCIDENT TO HIS ARREST.
2. THE LOWER COURT ERRED IN ADMITTING AS
EVIDENCE AGAINST ACCUSED-APPELLANT THE
HANDGRENADE ALLEGEDLY SEIZED FROM HIM AS IT
WAS A PRODUCT OF AN UNREASONABLE AND
ILLEGAL SEARCH.
In sum, petitioner argued that the warrantless arrest was invalid
due to absence of any of the conditions provided for in Section
5 of Rule 113 of the Rules of Court, citing People vs.
Mengote. [23] As such, the search was illegal, and the hand
xxiii
grenade seized, inadmissible in evidence.
In its Brief for the Appellee, the Office of the Solicitor General
agreed with the trial court and prayed that its decision be
affirmed in toto. [24]
xxiv
In its decision of 24 January 1996, [25] the Court of Appeals
xxv
affirmed the trial court, noting, first, that petitioner abandoned
his original theory before the court a quo that the grenade was
xx
planted by the police officers; and second, the factual finding
of the trial court that the grenade was seized from petitioners
possession was not raised as an issue. Further, respondent court
focused on the admissibility in evidence of Exhibit D, the hand
grenade seized from petitioner. Meeting the issue squarely, the
Court of Appeals ruled that the arrest was lawful on the ground
that there was probable cause for the arrest as petitioner was
attempting to commit an offense, thus:
We are at a loss to understand how a man, who was in
possession of a live grenade and in the company of other
suspicious character[s] with unlicensed firearm[s] lurking in
Plaza Miranda at a time when political tension ha[d] been
enkindling a series of terroristic activities, [can] claim that he
was not attempting to commit an offense. We need not mention
that Plaza Miranda is historically notorious for being a favorite
bomb site especially during times of political upheaval. As the
mere possession of an unlicensed grenade is by itself an
offense, Malacats posture is simply too preposterous to inspire
belief.
In so doing, the Court of Appeals took into account petitioners
failure to rebut the testimony of the prosecution witnesses that
they received intelligence reports of a bomb threat at Plaza
Miranda; the fact that PO Yu chased petitioner two days prior
to the latters arrest, or on 27 August 1990; and that petitioner
and his companions acted suspiciously, the accumulation of
which was more than sufficient to convince a reasonable man
that an offense was about to be committed. Moreover, the
Court of Appeals observed:
The police officers in such a volatile situation would be guilty
of gross negligence and dereliction of duty, not to mention of
gross incompetence, if they [would] first wait for Malacat to
hurl the grenade, and kill several innocent persons while
maiming numerous others, before arriving at what would then
be an assured but moot conclusion that there was indeed
probable cause for an arrest. We are in agreement with the
lower court in saying that the probable cause in such a situation
should not be the kind of proof necessary to convict, but rather
the practical considerations of everyday life on which a
reasonable and prudent mind, and not legal technicians, will
ordinarily act.
Finally, the Court of Appeals held that the rule laid down in
People v. Mengote, [26] which petitioner relied upon, was
xxvi
inapplicable in light of [c]rucial differences, to wit:
[In Mengote] the police officers never received any intelligence
report that someone [at] the corner of a busy street [would] be
in possession of a prohibited article. Here the police officers
were responding to a [sic] public clamor to put a check on the
series of terroristic bombings in the Metropolis, and, after
receiving intelligence reports about a bomb threat aimed at the
vicinity of the historically notorious Plaza Miranda, they
conducted foot patrols for about seven days to observe
suspicious movements in the area. Furthermore, in Mengote,
the police officers [had] no personal knowledge that the person
arrested has committed, is actually committing, or is attempting
to commit an offense. Here, PO3 Yu [had] personal knowledge
of the fact that he chased Malacat in Plaza Miranda two days
before he finally succeeded in apprehending him.
Unable to accept his conviction, petitioner forthwith filed the
instant petition and assigns the following errors:
1. THE RESPONDENT COURT ERRED IN AFFIRMING
THE FINDING OF THE TRIAL COURT THAT THE
WARRANTLESS ARREST OF PETITIONER WAS VALID
AND LEGAL.
2. THE RESPONDENT COURT ERRED IN HOLDING
THAT THE RULING IN PEOPLE VS. MENGOTE DOES
NOT FIND APPLICATION IN THE INSTANT CASE.
In support thereof, petitioner merely restates his arguments
below regarding the validity of the warrantless arrest and
search, then disagrees with the finding of the Court of Appeals
that he was attempting to commit a crime, as the evidence for
the prosecution merely disclosed that he was standing at the
corner of Plaza Miranda and Quezon Boulevard with his eyes
moving very fast and looking at every person that come (sic)
nearer (sic) to them. Finally, petitioner points out the factual
similarities between his case and that of People v. Mengote to
demonstrate that the Court of Appeals miscomprehended the
latter.
In its Comment, the Office of the Solicitor General prays that
we affirm the challenged decision.
For being impressed with merit, we resolved to give due course
to the petition.
The challenged decision must immediately fall on
jurisdictional grounds. To repeat, the penalty imposed by the
trial court was:
[N]ot less than SEVENTEEN (17) YEARS, FOUR (4)
MONTHS AND ONE (1) DAY OF RECLUSION
TEMPORAL, as minimum, and not more than THIRTY
(30) YEARS OF RECLUSION PERPETUA, as maximum.
The penalty provided by Section 3 of P.D. No. 1866 upon any
person who shall unlawfully possess grenades is reclusion
temporal in its maximum period to reclusion perpetua.
For purposes of determining appellate jurisdiction in criminal
cases, the maximum of the penalty, and not the minimum, is
taken into account. Since the maximum of the penalty is
reclusion perpetua, the appeal therefrom should have been to
us, and not the Court of Appeals, pursuant to Section 9(3) of
the Judiciary Reorganization Act of 1980 (B.P. Blg. 129), [27]
xxvii
in relation to Section 17 of the Judiciary Act of 1948, [28]
xxviii
Section 5(2) of Article VIII of the Constitution [29] and Section
xxix
3(c) of Rule 122 of the Rules of Court. [30] The term life
xxx
imprisonment as used in Section 9 of B.P. Blg. 129, the
Judiciary Act of 1948, and Section 3 of Rule 122 must be
deemed to include reclusion perpetua in view of Section 5(2)
of Article VIII of the Constitution.
Petitioners Notice of Appeal indicated that he was appealing
from the trial courts decision to this Court, yet the trial court
transmitted the record to the Court of Appeals and the latter
proceeded to resolve the appeal.
We then set aside the decision of the Court of Appeals for
having been rendered without jurisdiction, and consider the
appeal as having been directly brought to us, with the petition
for review as petitioners Brief for the Appellant, the comment
thereon by the Office of the Solicitor General as the Brief for
the Appellee and the memoranda of the parties as their
Supplemental Briefs.
Deliberating on the foregoing pleadings, we find ourselves
convinced that the prosecution failed to establish petitioners
guilt with moral certainty.
First, serious doubt surrounds the story of police officer Yu that
a grenade was found in and seized from petitioners possession.
Notably, Yu did not identify, in court, the grenade he allegedly
seized. According to him, he turned it over to his commander
after putting an X mark at its bottom; however, the commander
was not presented to corroborate this claim. On the other hand,
the grenade presented in court and identified by police officer
Ramilo referred to what the latter received from Lt. Eduardo
Cabrera and police officer Diotoy not immediately after
petitioners arrest, but nearly seven (7) months later, or on 19
March 1991; further, there was no evidence whatsoever that
what Ramilo received was the very same grenade seized from
petitioner. In his testimony, Yu never declared that the grenade
passed on to Ramilo was the grenade the former confiscated
from petitioner. Yu did not, and was not made to, identify the
grenade examined by Ramilo, and the latter did not claim that
the grenade he examined was that seized from petitioner.
Plainly, the law enforcement authorities failed to safeguard and
preserve the chain of evidence so crucial in cases such as these.
Second, if indeed petitioner had a grenade with him, and that
two days earlier he was with a group about to detonate an
explosive at Plaza Miranda, and Yu and his fellow officers
chased, but failed to arrest them, then considering that Yu and
his three fellow officers were in uniform and therefore easily
cognizable as police officers, it was then unnatural and against
common experience that petitioner simply stood there in
proximity to the police officers. Note that Yu observed
petitioner for thirty minutes and must have been close enough
to petitioner in order to discern petitioners eyes moving very
fast.
Finally, even assuming that petitioner admitted possession of
the grenade during his custodial investigation by police officer
Serapio, such admission was inadmissible in evidence for it
was taken in palpable violation of Section 12(1) and (3) of
Article III of the Constitution, which provide as follows:
SEC. 12 (1). Any person under investigation for the
commission of an offense shall have the right to be informed of
his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person
cannot afford the services of counsel, he must be provided with
one. These rights cannot be waived except in writing and in the
presence of counsel.
xxx
(3) Any confession or admission obtained in violation of this or
Section 17 hereof shall be inadmissible in evidence against
him.
Serapio conducted the custodial investigation on petitioner the
day following his arrest. No lawyer was present and Serapio
could not have requested a lawyer to assist petitioner as no
PAO lawyer was then available. Thus, even if petitioner
consented to the investigation and waived his rights to remain
silent and to counsel, the waiver was invalid as it was not in
writing, neither was it executed in the presence of counsel.
Even granting ex gratia that petitioner was in possession of a
grenade, the arrest and search of petitioner were invalid, as will
be discussed below.
The general rule as regards arrests, searches and seizures is that
a warrant is needed in order to validly effect the same. [31] The
xxxi
Constitutional prohibition against unreasonable arrests,
searches and seizures refers to those effected without a validly
issued warrant, [32] subject to certain exceptions. As regards
xxxii
valid warrantless arrests, these are found in Section 5, Rule 113
of the Rules of Court, which reads, in part:
Sec. 5. -- Arrest, without warrant; when lawful -- A peace
officer or a private person may, without a warrant, arrest a
person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit
an offense;
(b) When an offense has in fact just been committed, and he
has personal knowledge of facts indicating that the person to be
arrested has committed it; and
(c) When the person to be arrested is a prisoner who has
escaped ***
A warrantless arrest under the circumstances contemplated
under Section 5(a) has been denominated as one "in flagrante
delicto," while that under Section 5(b) has been described as a
"hot pursuit" arrest.
Turning to valid warrantless searches, they are limited to the
following: (1) customs searches; (2) search of moving vehicles;
(3) seizure of evidence in plain view; (4) consent searches; xxxiii
[33] (5) a search incidental to a lawful arrest; [34] and (6) a
xxxiv
"stop and frisk." [35]
xxxv
In the instant petition, the trial court validated the warrantless
search as a stop and frisk with the seizure of the grenade from
the accused [as] an appropriate incident to his arrest, hence
necessitating a brief discussion on the nature of these
exceptions to the warrant requirement.
At the outset, we note that the trial court confused the concepts
of a "stop-and-frisk" and of a search incidental to a lawful
arrest. These two types of warrantless searches differ in terms
of the requisite quantum of proof before they may be validly
effected and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest
determines the validity of the incidental search, the legality of
the arrest is questioned in a large majority of these cases, e.g.,
whether an arrest was merely used as a pretext for conducting a
search. [36] In this instance, the law requires that there first be
xxxvi
a lawful arrest before a search can be made -- the process
cannot be reversed. [37] At bottom, assuming a valid arrest,
xxxvii
the arresting officer may search the person of the arrestee and
the area within which the latter may reach for a weapon or for
evidence to destroy, and seize any money or property found
which was used in the commission of the crime, or the fruit of
the crime, or that which may be used as evidence, or which
might furnish the arrestee with the means of escaping or
committing violence. [38]
xxxviii
Here, there could have been no valid in flagrante delicto or hot
pursuit arrest preceding the search in light of the lack of
personal knowledge on the part of Yu, the arresting officer, or
an overt physical act, on the part of petitioner, indicating that a
crime had just been committed, was being committed or was
going to be committed.
Having thus shown the invalidity of the warrantless arrest in
this case, plainly, the search conducted on petitioner could not
have been one incidental to a lawful arrest.
We now proceed to the justification for and allowable scope of
a "stop-and-frisk" as a "limited protective search of outer
clothing for weapons," as laid down in Terry, thus:
We merely hold today that where a police officer observes
unusual conduct which leads him reasonably to conclude
in light of his experience that criminal activity may be
afoot and that the persons with whom he is dealing may be
armed and presently dangerous, where in the course of
investigating this behavior he identifies himself as a
 policeman and makes reasonable inquiries, and where
nothing in the initial stages of the encounter serves to
dispel his reasonable fear for his own or others' safety, he
is entitled for the protection of himself and others in the
area to conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover
weapons which might be used to assault him. Such a
search is a reasonable search under the Fourth Amendment
*** [39]
xxxix
Other notable points of Terry are that while probable cause is
not required to conduct a "stop and frisk," [40] it nevertheless
xl
holds that mere suspicion or a hunch will not validate a "stop
and frisk." A genuine reason must exist, in light of the police
officer's experience and surrounding conditions, to warrant the
belief that the person detained has weapons concealed about
him. [41] Finally, a "stop-and-frisk" serves a two-fold interest:
xli
(1) the general interest of effective crime prevention and
detection, which underlies the recognition that a police officer
may, under appropriate circumstances and in an appropriate
manner, approach a person for purposes of investigating
possible criminal behavior even without probable cause; and
(2) the more pressing interest of safety and self-preservation
which permit the police officer to take steps to assure himself
that the person with whom he deals is not armed with a deadly
weapon that could unexpectedly and fatally be used against the
police officer.
Here, here are at least three (3) reasons why the stop-and-frisk
was invalid:
First, we harbor grave doubts as to Yus claim that petitioner
was a member of the group which attempted to bomb Plaza
Miranda two days earlier. This claim is neither supported by
any police report or record nor corroborated by any other
police officer who allegedly chased that group. Aside from
impairing Yu's credibility as a witness, this likewise diminishes
the probability that a genuine reason existed so as to arrest and
search petitioner. If only to further tarnish the credibility of
Yu's testimony, contrary to his claim that petitioner and his
companions had to be chased before being apprehended, the
affidavit of arrest (Exh. "A") expressly declares otherwise, i.e.,
upon arrival of five (5) other police officers, petitioner and his
companions were "immediately collared."
Second, there was nothing in petitioners behavior or conduct
which could have reasonably elicited even mere suspicion
other than that his eyes were moving very fast an observation
which leaves us incredulous since Yu and his teammates were
nowhere near petitioner and it was already 6:30 p.m., thus
presumably dusk. Petitioner and his companions were merely
standing at the corner and were not creating any commotion or
trouble, as Yu explicitly declared on cross-examination:
Q And what were they doing?
A They were merely standing.
Q You are sure of that?
A Yes, sir.
Q And when you saw them standing, there were nothing
or they did not create any commotion?
A None, sir.
Q Neither did you see them create commotion? SO ORDERED.

A None, sir. xlii

[42]

Third, there was at all no ground, probable or otherwise, to

believe that petitioner was armed with a deadly weapon. None
was visible to Yu, for as he admitted, the alleged grenade was
discovered inside the front waistline of petitioner, and from all
indications as to the distance between Yu and petitioner, any
telltale bulge, assuming that petitioner was indeed hiding a
grenade, could not have been visible to Yu. In fact, as noted by
the trial court:

When the policemen approached the accused and his

companions, they were not yet aware that a handgrenade was
tucked inside his waistline. They did not see any bulging object
in [sic] his person. [43] xliii

What is unequivocal then in this case are blatant violations of

petitioners rights solemnly guaranteed in Sections 2 and 12(1)
of Article III of the Constitution.

WHEREFORE, the challenged decision of the Seventeenth

Division of the Court of Appeals in CA-G.R. CR No. 15988 is
SET ASIDE for lack of jurisdiction on the part of said Court
and, on ground of reasonable doubt, the decision of 10
February 1994 of Branch 5 of the Regional Trial Court of
Manila is REVERSED and petitioner SAMMY MALACAT y
MANDAR is hereby ACQUITTED and ORDERED
immediately released from detention, unless his further
detention is justified for any other lawful cause.

Costs de oficio.
i
iiG.R. No. 185719 June 17, 2013

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE,

vs.
MARCELINO COLLADO Y CUNANAN, MYRA COLLADO Y SENICA, MARK CIPRIANO Y
ROCERO, SAMUEL SHERWIN LATARIO Y ENRIQUE,* AND REYNALDO RANADA Y ALAS**,
ACCUSED-APPELLANTS.

DECISION

DEL CASTILLO, J.:

Mere allegations and self-serving statements will not overcome the presumption of regularity in the performance
of official duties accorded to police officers. There must be a showing of clear and convincing evidence to
successfully rebut this presumption.

On appeal is the February 28, 2008 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02626
which affirmed with modification the December 7, 2005 Decision 2 of the Regional Trial Court (RTC) of Pasig
City, Branch 154 in Criminal Case Nos. 13781-D, 13783-D and 13784-D. The RTC convicted the appellants and
several other accused for violations of Republic Act (RA) No. 9165 or the Comprehensive Dangerous Drugs Act
of 2002, and imposed upon them the penalty of imprisonment and payment of fine in each of their respective
cases.

Factual Antecedents

On October 14, 2004, appellants Marcelino Collado (Marcelino) and Myra Collado (Myra) were charged with
the crimes of sale of dangerous drugs and maintenance of a den, dive or resort in violation of Sections 5 and 6 of
Article II, RA 9165 docketed as Criminal Case Nos. 13781-D and 13782-D, respectively, viz:

CRIMINAL CASE NO. 13781-D

On or about October 9, 2004, in Pasig City, and within the jurisdiction of this Honorable Court, the accused,
conspiring and confederating together and both of them mutually helping and aiding one another, not being
lawfully authorized by law, did then and there willfully, unlawfully and feloniously sell, deliver and give away to
PO2 Richard N. Noble, a police poseur buyer, one (1) heat-sealed transparent plastic sachet containing three (3)
centigrams (0.03 gram) of white crystalline substance, which was found positive to the test for
methylamphetamine hydrochloride, a dangerous drug, in violation of the said law.

Contrary to law.3

CRIMINAL CASE NO. 13782-D

On or about or immediately prior to October 9, 2004, in Pasig City, and within the jurisdiction of this Honorable
Court, the accused, conspiring and confederating together and both of them mutually helping and aiding one
another, did then and there willfully, unlawfully and feloniously maintain a den, dive or resort located at No. 32
R. Hernandez St., Brgy. San Joaquin, Pasig City, where x x x dangerous drugs are used or sold in any form, in
violation of the said law.

Contrary to law.4
Marcelino was also charged with illegal possession of dangerous drugs under Section 11, Article II of the same
law docketed as Criminal Case No. 13783-D, viz:

CRIMINAL CASE NO. 13783-D

On or about October 9, 2004, in Pasig City, and within the jurisdiction of this Honorable Court, the accused, not
being lawfully authorized to possess any dangerous drug, did then and there willfully, unlawfully and feloniously
have in his possession and under his custody and control one (1) heat-sealed transparent plastic sachet containing
six centigrams (0.06 gram) of white crystalline substance, which was found to be positive to the test for
methylamphetamine hydrochloride, a dangerous drug, in violation of the said law.

Contrary to law.5

On the other hand, appellants Mark Cipriano (Cipriano), Samuel Sherwin Latario (Latario), Reynaldo Ranada
(Ranada), together with co-accused Melody Apelo (Apelo), Marwin Abache (Abache), Michael Angelo
Sumulong (Sumulong), and Jay Madarang (Madarang), were charged with possession of drug paraphernalia in
violation of Section 14, Article II of RA 9165, docketed as Criminal Case No. 13784-D, viz:

CRIMINAL CASE NO. 13784-D

On or about October 9, 2004, in Pasig City, and within the jurisdiction of this Honorable Court, the accused,
each being in the proximate company of two (2) persons and in conspiracy with one another, without having
been duly authorized by law, did then and there willfully, unlawfully and feloniously have in their possession
and under their custody and control the following paraphernalias [sic], fit or intended for smoking, consuming,
administering or introducing any dangerous drug into the body, to wit:

a. one (1) strip aluminum foil containing traces of white crystalline substance marked as Exh-D;

b. one (1) improvised glass tooter containing traces of white crystalline substance marked as Exh-D1;

c. one (1) pack transparent plastic sachet marked as Exh-D2;

d. two (2) plastic disposable lighters marked as Exhs. "G-H";

e. one (1) tape-sealed transparent plastic sachet containing three (3) rolled aluminum foil marked as Exh.
D5;

f. five (5) unsealed transparent plastic sachets marked as Exh. D6;

g. one (1) stainless scissor marked as Exh. D7;

h. one (1) rectangular glass marked as Exh. D8; and

i. one (1) roll of aluminum foil marked as Exh. D9.

[Specimens] marked as Exh-D and Exh-D1 were found positive to the test for methylamphetamine
hydrochloride, a dangerous drug, in violation of the said law.

Contrary to law.6
Upon arraignment on November 4, 2004, all the appellants and the other accused pleaded not guilty. 7 Pre-trial
and joint trial on the merits subsequently ensued.

Version of the Prosecution

The prosecution presented as witnesses PO2 Richard Noble (PO2 Noble) and SPO2 Bernardo Cruz (SPO2 Cruz)
who were involved in the buy-bust operation that led to the arrest of the appellants. Their testimonies are
summarized as follows:

On October 9, 2004, PO2 Noble received information from a civilian asset that spouses Marcelino and Myra
were engaged in selling shabu and that drug users, including out-of-school youth, were using their residence in
32 R. Hernandez St., San Joaquin, Pasig City, for their drug sessions. 8 After recording the report in the police
blotter, PO2 Noble relayed the information to his superior, P/Insp. Earl B. Castillo (P/Insp. Castillo), who in turn
ordered the conduct of a surveillance operation. 9 PO2 Noble, SPO2 Cruz and PO1 Anthony Bitbit, conducted a
surveillance on the couple’s residence. After confirming the reported activities, SPO2 Cruz looked for an asset
who could introduce them to Marcelino and Myra in the ensuing buy-bust operation. 10

A buy-bust operation team was thereafter formed. After coordinating with the Philippine Drug Enforcement
Agency as evidenced by a Pre-Operation Report, 11 the team proceeded to Marcelino’s and Myra’s residence on
board two private vehicles. Upon reaching the target area, the asset introduced PO2 Noble to Marcelino as a
regular buyer of shabu.12 When asked how much shabu he needed, PO2 Noble replied, "dalawang piso," which
means ₱200.00 worth of drugs. But when PO2 Noble was handing over the marked money to Marcelino, the
latter motioned that the same be given to his wife, Myra, who accepted the money. Marcelino then took from his
pocket a small metal container from which he brought out a small plastic sachet containing white crystalline
substance and gave the same to PO2 Noble. While PO2 Noble was inspecting its contents, he noticed smoke
coming from a table inside the house of the couple around which were seven persons. 13 When PO2 Noble gave
the pre-arranged signal, the backup team rushed to the scene. Simultaneously, PO2 Noble introduced himself as
a policeman and arrested Marcelino. He frisked him and was able to confiscate the metal container that
contained another sachet of white crystalline substance. PO2 Noble wrote the markings "MCC-RNN October 9,
2004" on both the plastic sachets of white substance sold to him by Marcelino and the one found inside the metal
container.

Meanwhile, SPO2 Cruz and another police officer went inside the house of Marcelino and Myra, where they
found Apelo, Cipriano, Ranada, Abache, Sumulong, Madarang and Latario gathered around a table littered with
various drug paraphernalia such as an improvised water pipe, strips of aluminum foil with traces of white
substance, disposable lighters, and plastic sachets. A strip of aluminum foil used for smoking marijuana was
recovered from Ranada. The buy-bust team arrested all these persons, advised them of their constitutional rights,
and brought them to police headquarters for investigation and drug testing.

A chemistry report14 on all the seized items yielded positive results for methylamphetamine hydrochloride.
Another chemistry report15 showed Marcelino, Apelo, Cipriano, and Ranada positive for drug use while Myra,
Abache, Sumulong, Madarang, and Latario were found negative.

Version of the Defense

The defense presented the testimonies of Marcelino, Myra, and Ranada, who all essentially put up the defense of
denial. The following is their version of the story.

Marcelino and Myra owned an electronics and appliance repair shop annexed to their house. In the evening of
October 9, 2004, Marcelino was in the living room with his children and nieces fixing a VCD player. Apelo,
their househelp, was in the kitchen preparing food while Ranada, their repairman, was outside the house fixing
Sumulong’s motorcycle. Cipriano and Madarang were also present at the shop, the former to redeem his car
stereo and the latter to borrow a play station CD. Latario, a housemate of Marcelino and Myra, was also present
at the time.

Marcelino suddenly heard someone say "Walang tatakbo!" Four armed men rushed inside the house and pointed
their guns at him and said "Wag ka nang pumalag." He was thereafter dragged outside where he saw the other
accused already in handcuffs. Marcelino was later informed that they were being arrested for selling shabu.
Marcelino protested and disclaimed any knowledge about drugs. When the officers frisked all the accused,
Marcelino claimed that nothing illegal nor incriminating was recovered from them.

When Myra arrived at the scene, she was shocked to see her husband being arrested. The police officers then
brought all the accused to the police station for further questioning.

At the police station, PO2 Noble asked Marcelino for ₱50,000.00 as settlement of their case. Marcelino, Apelo,
Cipriano, and Ranada were also made to drink water that according to Marcelino tasted bitter. 16 They were then
brought to Camp Crame for medical examination and drug tests. Those who drank the bitter water tested positive
for drugs use while the others, who did not drink, tested negative.

Marcelino surmised that their arrest was due to a misunderstanding he had with a former police officer named
Rey who bought a VCD player from his shop. He specifically instructed Rey not to let anyone repair the VCD
player should it malfunction. However, when the VCD player malfunctioned, Rey had it repaired by somebody
else, hence Marcelino refused to accept the VCD player and return Rey’s money. This earned the ire of Rey who
threatened him with the words "Humanda ka pagbalik ko."17

Ruling of the Regional Trial Court

In its Decision18 dated December 7, 2005, the RTC disposed of the case as follows:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

In Crim. Case No. 13781-D, finding the accused MARCELINO COLLADO y Cunanan and MYRA COLLADO
y Senica GUILTY beyond reasonable doubt of the crime of violation of Section 5 of R.A. 9165 (sale of
dangerous drug) and they are hereby sentenced to suffer the penalty of LIFE IMPRISONMENT.

Additionally, the two accused are ordered to pay a fine of ONE MILLION PESOS (₱1,000,000.00) EACH.

In Crim. Case No. 13782-D, judgment is rendered finding the accused MARCELINO COLLADO y Cunanan
and MYRA COLLADO y Senica NOT GUILTY of the crime of violation of Section 6.

In Crim. Case No. 13783-D, finding the accused MARCELINO COLLADO y Cunanan GUILTY of the offense
of violation of Section 11 of R.A. 9165 and he is hereby sentenced to suffer the indeterminate penalty of
imprisonment of TWELVE (12) YEARS and ONE (1) DAY to FIFTEEN (15) YEARS.

The accused Marcelino Collado is also ordered to pay a fine of THREE HUNDRED THOUSAND PESOS
(₱300,000.00).

In Crim. Case No. 13784-D, judgment is hereby rendered finding the accused MELODY APELO y Roman,
MARK CIPRIANO y Rocero, MARWIN ABACHE y Aquilino, MICHAEL ANGELO SUMULONG y
Belarmino, JAY MADARANG y Gomez, SAMUEL SHERWIN LATARIO y Enrique and REYNALDO
RANADA y Alas GUILTY of the offense of violation of Section 14 of R.A. 9165 and they are hereby sentenced
to suffer the indeterminate penalty of TWO (2) YEARS, EIGHT (8) MONTHS and ONE (1) DAY to FOUR (4)
YEARS imprisonment. Each of them is also ordered to pay a fine of TEN THOUSAND PESOS (₱10,000.00).

Let the shabu and paraphernalia alleged to be the subject[s] of the Information be turned over and delivered
immediately to the Philippine Drug Enforcement Agency (PDEA) for proper disposition.

SO ORDERED.19

Accused Apelo, Abache, Sumulong and Madarang applied for probation. 20 Hence, only Marcelino, Myra,
Cirpriano, Latario and Ranada appealed to the CA. 21

Ruling of the Court of Appeals

The appellate court found the warrantless arrest of the appellants to be lawful considering that they were caught
in the act of committing a crime. 22 Thus, the CA affirmed the conviction of Marcelino and Myra for violation of
Section 5 of RA 9165 (sale of dangerous drugs), as well as the conviction of Marcelino for violation of Section
11 of RA 9165 (illegal possession of dangerous drugs). Anent the violation of Section 14 of RA 9165 (possession
of drug paraphernalia), the CA affirmed the conviction of Ranada as he was caught having custody and control
of a drug paraphernalia intended for smoking and injecting illegal drugs into one’s body. 23 As regards Cipriano
and Latario, as well as the other accused Apelo, Abache, Sumulong and Madarang, the CA found them guilty not
as principals but only as accessories.

Thus, the appellate court affirmed with modification the trial court’s Decision through a Decision 24 dated
February 28, 2008, the dispositive portion of which states:

WHEREFORE, the appealed Decision is AFFIRMED with respect to the conviction and imposition of the
respective penalties against the following: (A) appellants Marcelino Collado and Myra Collado in Crim. Case
No. 13781-D25 for violation of Section 5, Article II, RA No. 9165; (B) appellant Marcelino Collado in Crim.
Case No. 13783-D for violation of Section 11, Article II, RA No. 9165; (C) appellant Reynaldo Ranada in Crim.
Case No. 13784-D for violation of Section 14, Article II, RA No. 9165.

In Crim. Case No. 13784-D, MODIFICATION is hereby ordered as to appellants Mark Cipriano and Samuel
Sherwin Latario, including co-accused Melody Apelo, Marwin Abache, Michael Angelo Sumulong and Jay
Madarang – insofar as they were found GUILTY, not as principals, but as ACCESSORIES in the offense of
violation of Section 14, Article II of RA No. 9165, in relation to the aforecited provision of the Revised Penal
Code. Each of them shall suffer the straight penalty of Four (4) Months of arresto mayor. The fine of Ten
Thousand Pesos already imposed by the trial court upon each of them is MAINTAINED.

SO ORDERED.26

Not satisfied, the appellants are now before this Court arguing that irregularities attended their arrest and
detention as well as the procedure in handling the specimen allegedly seized from them. Because of these, they
assert that their guilt was not proven beyond reasonable doubt.

Our Ruling

The appealed Decision should be affirmed, with modification.

The presumption of regularity in the

performance of official duties must
be upheld in the absence of clear and
convincing evidence to overturn the
same.

Appellants question the validity of the buy-bust operation and point out the following irregularities which they
claim attended its conduct: (1) lack of warrant of arrest; (2) non-compliance with the procedures laid down under
Section 21 of RA 9165; and, (3) the alleged extortion of money from them by PO2 Noble in exchange for
dropping the charges against them. Due to these irregularities, appellants argue that the presumption of regularity
in the performance of official duties accorded to police officers does not apply in this case.

Lack of a warrant of arrest

Appellants argue that the arrest, search, and seizure conducted by the police were illegal since it was not
supported by a valid warrant. They thus posit that their right to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures was violated. 27

Section 5, Rule 113 of the Rules of Court provides for lawful warrantless arrests, viz:

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

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

(b) When an offense has in fact just been committed and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it; and

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

Section 5(a) is what is known as arrest in flagrante delicto. For this type of warrantless arrest to be valid, two
requisites must concur: "(1) the person to be arrested must execute an overt act indicating that he has just
committed, is actually committing, or is attempting to commit a crime; and, (2) such overt act is done in the
presence or within the view of the arresting officer." 28 A common example of an arrest in flagrante delicto is one
made after conducting a buy-bust operation.

This is precisely what happened in the present case. The arrest of the appellants was an arrest in flagrante delicto
made in pursuance of Sec. 5(a), Rule 113 of the Rules of Court. The arrest was effected after Marcelino and
Myra performed the overt act of selling to PO2 Noble the sachet of shabu and Ranada of having in his control
and custody illegal drug paraphernalia. Thus, there is no other logical conclusion than that the arrest made by the
police officers was a valid warrantless arrest since the same was made while the appellants were actually
committing the said crimes.

Moreover, assuming that irregularities indeed attended the arrest of appellants, they can no longer question the
validity thereof as there is no showing that they objected to the same before their arraignment. Neither did they
take steps to quash the Informations on such ground. 29 They only raised this issue upon their appeal to the
appellate court. By this omission, any objections on the legality of their arrest are deemed to have been waived
by them.30

Anent their claim of unreasonable search and seizure, it is true that under the Constitution, "a search and
consequent seizure must be carried out with a judicial warrant; otherwise, it becomes unreasonable and any
evidence obtained therefrom shall be inadmissible for any purpose in any proceeding." 31 This proscription,
however, admits of exceptions, one of which is a warrantless search incidental to a lawful arrest. 32

The arrest of the appellants was lawful. Under Section 13, Rule 126 of the Rules of Court, "[a] person lawfully
arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in
the commission of an offense without a search warrant." The factual milieu of this case clearly shows that the
search was made after appellants were lawfully arrested. Pursuant to the above-mentioned rule, the subsequent
search and seizure made by the police officers were likewise valid. Hence, appellants’ claim of unreasonable
search and seizure must fail.1âwphi1

Extortion

Appellants aver that PO2 Noble tried to extort money from them in exchange for dropping the drug charges
against them.

The defense of extortion and/or frame-up is often put up in drugs cases in order to cast doubt on the credibility of
police officers. This is a serious imputation of a crime hence clear and convincing evidence must be presented to
support the same. There must also be a showing that the police officers were inspired by improper motive. In this
case, we find such imputation unfounded.

In People v. Capalad,33 this Court held thus:

Charges of extortion and frame-up are frequently made in this jurisdiction. Courts are, thus, cautious in dealing
with such accusations, which are quite difficult to prove in light of the presumption of regularity in the
performance of the police officers’ duties. To substantiate such defense, which can be easily concocted, the
evidence must be clear and convincing and should show that the members of the buy-bust team were inspired by
any improper motive or were not properly performing their duty. Otherwise, the police officers’ testimonies on
the operation deserve full faith and credit.

Here, aside from Marcelino’s self-serving testimony, appellants’ claim of extortion is not substantiated by other
convincing evidence. Neither was it established during trial that PO2 Noble or the other members of the buy-
bust team were impelled by improper motive. Appellants’ allegation that PO2 Noble and his team arrested them
because of Marcelino’s previous misunderstanding with a certain retired policeman named Rey deserves no
credence. No evidence was presented to show any connection between Rey and the buy-bust team. It was not
even shown by the defense who this person Rey really is. Also, it is highly unlikely that a team of police officers
would pursue a surveillance, conduct a buy-bust operation, and arrest all the accused for a measly ₱1,000.00
VCD player. In view of these, appellants’ allegation of extortion and improper motive deserves no credence.

Chain of Custody

Appellants argue that the procedure laid down in Section 21 of RA 9165 was not followed. They specifically
harp on the fact that the confiscated drugs were not photographed and inventoried. Moreover, they contend that
the police officers who handled the seized specimen were not presented in court to testify on the condition in
which they received the said specimen. For the appellants, these defects constitute a clear break in the chain of
custody and, consequently, the prosecution failed to establish corpus delicti. 34

The Court, however, finds this argument unmeritorious.

Section 21, paragraph 1, Article II of RA 9165 provides for the custody and disposition of the confiscated drugs,
to wit:
(1) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure
and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s
from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from
the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the
copies of the inventory and be given a copy thereof;

This rule is elaborated in Section 21(a), Article II of the Implementing Rules and Regulations of RA 9165, viz:

a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure
and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s
from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from
the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the
copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall
be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest
office of the apprehending officer/ team, whichever is practicable, in case of warrantless seizure; Provided,
further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the
evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render
void and invalid such seizures of and custody over said items. (Emphasis supplied)

Pursuant to the above-cited provisions, this Court has consistently ruled that the failure of the police officers to
inventory and photograph the confiscated items are not fatal to the prosecution’s cause, 35 provided that the
integrity and evidentiary value of the seized substance were preserved, as in this case. Here, PO2 Noble, after
apprehending Marcelino and confiscating from him the sachets of shabu, immediately placed his markings on
them. He testified thus:

PROSECUTOR PAZ:

Q: What did you do with that sachet containing white substance that was bought from Marcelino and the one that
you were able to confiscate from him?

A: I put my markings.

Q: What were those markings?

A: MCC-RNN October 9, 2004.36

In the Request for Laboratory Examination 37 the seized items were listed and inventoried. After the conduct of
the laboratory examination, Chemistry Report No. D-807-04 38 revealed that the contents of the said sachets
tested positive for methylamphetamine hydrochloride or shabu.

Moreover, it is of no moment that Forensic Chemist Alejandro De Guzman who conducted the laboratory
examination was not presented as a witness. The non-presentation as witnesses of other persons who had custody
of the illegal drugs is not a crucial point against the prosecution. 39 There is no requirement for the prosecution to
present as witness in a drugs case every person who had something to do with the arrest of the accused and the
seizure of the prohibited drugs from him. 40 To stress, the implementing rules are clear that non-compliance with
the requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items
are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and
custody over said items.41

Criminal Case No. 13784-D

With regard to Criminal Case No. 13784-D for illegal possession of drug paraphernalia, we find it imperative to
re-examine the findings of both the RTC and the CA.

The RTC’s findings are as follows:

The evidence for the prosecution clearly shows that certain things or paraphernalia which are fit or intended [for]
smoking shabu were found in the house of the accused Marcelino and Myra Collado on the same occasion that
the said spouses were arrested by the police officers. This fact makes all the accused without exception liable for
violation of Section 14. While it was only Reynaldo Ranada who was caught having in his possession an item
used in smoking marijuana, i.e., a strip of aluminum foil x x x and nothing was found in the possession of the
other accused, this fact nonetheless does not render Reynaldo Ranada the only person liable for violation of
Section 14. [Take note] that the law speaks not only of possession but also of having under one’s control the
paraphernalia intended for smoking. In the instant case, the paraphernalia were found by the police on top of the
table around which the accused were gathered. Hence, even if the x x x accused other than Ranada did not have
in their possession any of the paraphernalia, it can, however, be said that the paraphernalia found on top of the
table were under their control. x x x42

Thus, the RTC found Ranada, Cipriano, Latario, Apelo Abache, Sumulong and Madarang all equally guilty of
illegal possession of drug paraphernalia.

On appeal, however, the CA found Ranada guilty as principal while Cipriano, Latario, Apelo, Abache, Sumulong
and Madarang were adjudged as accessories only for the crime of illegal possession of drug paraphernalia. The
CA ratiocinated thus:

On the one hand, we sustain the conviction of Rañada in Crim. Case 13784-D. He was actually caught having
custody and control of the confiscated drug paraphenalia intended for smoking, injecting, etc. into one’s body. It
was also indubitably shown that he failed to present authority to possess the prohibited articles, much less, an
explanation of his possession thereof. However, as regards the other accused who were seen in the company of
Rañada, the evidence of conspiracy against them was insufficient.

To hold an accused guilty as co-principal by reason of conspiracy, he must be shown to have performed an overt
act in pursuance or furtherance of the complicity. Responsibility of a conspirator is not confined to the
accomplishment of a particular purpose of conspiracy but extends to collateral acts and offenses incident to and
growing out of the purpose intended.

It may be that appellants Mark Cipriano and Samuel Sherwin Latario and co-accused Melody Apelo, Marwin
Abache, Michael Angelo Sumulong, Jay Madarang were in close proximity [to] Rañada at the time and place of
the incident. But mere presence at the scene of the crime does not imply conspiracy. The prosecution failed to
show specific overt acts that would link these accused to Ranada’s possession of the said contrabands. As to why
they were there [in] the vicinity of the crime scene was not explained. They could be mere innocent onlookers
although they were aware of the illegality of the principal’s acts.

In any event, appellants Cipriano and Latario and the rest of the accused cannot be totally exonerated.1âwphi1
[However, we] downgrade their culpability corresponding to their criminal design and participation. Evidently,
they are guilty as accessories who, according to paragraph 1, Article 19 of the Revised Penal Code, are
criminally liable by ‘profiting themselves or assisting the offender to profit by the effects of the crime’. 43

We find that the CA erred in convicting Cipriano, Latario, Apelo, Abache, Sumulong and Madarang as
accessories. As pointed out by Justice Arturo D. Brion:
"[I]llegal possession of equipment, instrument, apparatus and other paraphernalia for dangerous drugs during
parties, social gatherings or meetings under Section 14 of R.A. No. 9165 is a crime of malum prohibitum, that is,
the act is made wrong or evil because there is a law prohibiting it. x x x

Since violation of Section 14 of R.A. No. 9165 is a crime of mala prohibita, the degree of participation of the
offenders is not considered. All who perpetrated the prohibited act are penalized to the same extent. There is no
principal or accomplice or accessory to consider. In short, the degree of participation of the offenders does not
affect their liability, and the penalty on all of them are the same whether they are principals or merely
accomplices or accessories.44

In addition, Section 98 of RA 9165 specifically provides that "[n]otwithstanding any law, rule or regulation to
the contrary, the provisions of the Revised Penal Code (Act No. 3814), as amended, shall not apply to the
provisions of this Act, except in the case of minor offenders. Where the offender is a minor, the penalty for acts
punishable by life imprisonment to death provided herein shall be reclusion perpetua to death." It is therefore
clear that the provisions of the Revised Penal Code, particularly Article 19 on Accessories, cannot be applied in
determining the degree of participation and criminal liability of Ranada’s co-accused.

At any rate, this Court is convinced that only Ranada should be held liable for violation of Section 14 of RA
9165. It is clear that it was only Ranada who was caught having in his possession an aluminum foil intended for
using dangerous drugs.45 As to the other co-accused, namely Apelo, Abache, Cipriano, Latario, Madarang, and
Sumulong, not one drug paraphernalia was found in their possession. The police officers were only able to find
the other drug paraphernalia scattered on top of a table. It is already established that there was no conspiracy
between Ranada and the other co-accused. As the CA correctly held, mere presence at the scene of the crime
does not imply conspiracy.46

PO2 Noble, when placed on the witness stand, only testified as follows:

A-

While I was checking the item that I bought, I saw several persons inside their house.

Q-

What were these persons doing?

A-

Some were seated, some were standing and there was x x x smoke.

Q-

Where was this smoke coming from?

A-

I did not see where the smoke [was] coming from because some of the persons were blocking [my view].

Q-

About how many persons were inside who were seated and who were standing?
A-

Seven (7).

Q-

Will you tell us if they are male or female or both?

A-

Six (6) male persons and one (1) female.

Q-

What are these persons who were seated inside the house doing?

A-

They were allegedly engaged in drug session.

COURT:

Q-

What do you mean allegedly?

A-

Because there was smoke and I did not see what they were using.

PROSECUTOR PAZ:

Q-

What about those who were standing, what were they doing?

A-

The persons who were standing were looking at the persons who were sitting. I could not see them clearly
because some of them were blocking my view.

Q-

How far were they, those who were seated and those who were standing?

A-

They were close to each other.

Q-

How long did you take a look at these persons inside the house?

A-

Only for a while, only for a glance, sir.47

On the other hand, SPO2 Bernardo Cruz testified that it was only Ranada who was caught holding the aluminum
foil, viz:

Q-

How about the aluminum foil that you recovered from another?

A-

I saw him holding the strip of aluminum foil, sir.

Q-

So, nothing was confiscated in the person of all other accused except for Ranada?

A-

Yes, sir.48

Therefore, Apelo, Abache, Cipriano, Latario, Madarang, and Sumulong should be acquitted of the charge of
violation of Section 14, RA 9165 on possession of equipment, instrument, apparatus and other paraphernalia for
dangerous drugs.

All told, this Court upholds the presumption of regularity in the performance of official duties by the police
officers involved in this case. The defense was not able to show by clear and convincing evidence why the
presumption should be overturned. The prosecution, on the other hand, was able to establish that Marcelino,
Myra and Ranada committed the crimes imputed against them, they having been caught in flagrante delicto. This
Court, being convinced that the guilt of Marcelino, Myra, and Ranada have been proven beyond reasonable
doubt, must uphold their conviction.

As to Apelo, Abache, Cipriano, Latario, Madarang, and Sumulong, the Court finds that they should be acquitted
of the offense of violation of Section 14, Article II, RA 9165, since the prosecution was not able to clearly show
specific overt acts that would prove that they were in possession of drug paraphernalia.

WHEREFORE, the appeal is PARTLY GRANTED. The February 28, 2008 Decision of the Court of Appeals in
CA-G.R. CR-H.C. No. 02626 is AFFIRMED with MODIFICATION that appellants Mark Cipriano and Samuel
Sherwin Latario, including co-accused Melody Apelo, Marwin Abache, Michael Angelo Sumulong, and Jay
Madarang are hereby ACQUITTED of the crime of violation of Section 14, Article II of Republic Act No. 9165.
They are ordered released unless they are being lawfully held for some other cause.

SO ORDERED.
iii
iv
v

vi
viiG.R. No. 183700 October 13, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
PABLITO ANDAYA y REANO, Accused-Appellant.

DECISION

BERSAMIN, J.:

The non-presentation of the confidential informant as a witness does not ordinarily weaken the State's case
against the accused. However, if the arresting lawmen arrested the accused based on the pre-arranged signal
from the confidential informant who acted as the poseur buyer, his nonpresentation must be credibly explained
and the transaction established by other ways in order to satisfy the quantum of proof beyond reasonable doubt
because the arresting lawmen did not themselves participate in the buy-bust transaction with the accused.

Antecedents

On February 7, 2003, an information for violation of Section 5 of Republic Act No. 91651 (RA 9165) was filed
charging Pablito Andaya y Reano (Andaya). The accusatory portion of the information reads:

That on or about December 16, 2002 at around 9:50 o'clock in the evening at Brgy. San Jose Sico, Batangas City,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized
by law, did then and there, willfully, unlawfully and feloniously, sell, dispense or deliver, more or less 0.09
gram(s) of Methamphetamine Hydrochloride (shabu), a dangerous drug, which is a clear violation of the above-
cited law. CONTRARY TO LAW.2

Upon arraignment,3 Andaya pleaded not guilty to the charge. Thereafter, trial on the merits ensued.

The CA summed up the versions of the parties, as follows:4

Five (5) witnesses were presented by the prosecution, namely: SPO4 Delfin Alea, SPO3 Nelio Lopez, SPO2
Danilo Mercado, SPO4 Protasio Marasigan and Jupri Delantar.
SPO2 Delfin Alea testified that at about 8:00 o'clock in the evening of December 16, 2002, their asset who was
conducting surveillance of Pablito Andaya in Barangay San Jose Sico, Batangas City, arrived at their station.
Said asset reported that he had arranged to buy shabu from Pablito. A team composed of SPO1 Aguila, SPO1
Cabungcal, Eric de Chavez, PO1 Lindberg Yap, Edwalberto Villar and asset Bagsit was constituted to conduct a
buy-bust. Two (2) pieces of ₱100.00 bills both duly marked "X" were recorded in the police blotter. Alea gave
the marked bills to the asset. Upon reaching the designated place, the team members alighted from their vehicles
and occupied different positions where they could see and observe the asset. The asset knocked on the door of
Pablito's house. Pablito came out. Pablito and the asset talked briefly. The asset gave Pablito the marked money.
The asset received something from appellant. The pre-arranged signal signifying consummation of the
transaction was given. The team members approached Pablito and the asset, introduced themselves as police
officers and arrested accused. He was brought to the police station. The arrival of the team was recorded in the
police blotter. The merchandise handed by accused to the asset was sent to the Regional Crime Laboratory in
Camp Vicente Lim, Canlubang, Laguna. The specimen was positive for methampethamine Hydrochloride
(shabu), a dangerous drug.

SPO2 Lopez received the person of the accused, the marked money and the item accused handed to the asset.
Lopez prepared the request for laboratory examination. He also prepared the documents required for filing of the
case with the Public Prosecutor.

SPO2 Danilo Mercado recorded the marked bills in the police blotter before the buy-bust. Upon the team's
return, the marked money and the merchandise from accused were turned over to SPO2 Mercado. He prepared a
complaint sheet. Thereafter, he turned over accused and the evidence to the Police Investigator.

SPo4 Protacio Marasigan received a written request for laboratory examination of the subject merchandise. He
brought the request to the crime laboratory in Laguna.

Jupri Delantar, a Forensic Chemical Officer in Camp Vicente Lim, Laguna, conducted the examination. The
merchandise tested positive for shabu.

Accused-appellant denied the charge. He stated that at about 9: 15 in the evening of December 16, 2002 he was
at home watching TV with his family when police officers arrived. When he opened the door, a police officer
poked his gun at him. Somebody else held a long firearm. Pablito was handcuffed and brought outside. He
refused to negotiate and asked for a warrant. The policemen searched the house, turned over the beddings and
uncovered their furniture. No gun nor shabu was found. Pablito was brought to the police station and detained.
After three (3) days he was released. He received a subpoena from the Public Prosecutor afterwards.

His wife Crisanta, corroborated appellants' testimony. She added having told her husband about the loss of their
cellphone and the money in his wallet. She was asked to produce ₱5,000.00 which she was unable to do. She
was able to raise only ₱2,000.00.

Judgment of the RTC

On February 21, 2006, the Regional Trial Court, Branch 4, in Batangas City (R TC) rendered its judgment
convicting Andaya as charged, and meted him the penalty of life imprisonment,5 viz:

In the case at bar, the buy-bust operation conducted on the night of December 16, 2002 is supported by the
police blotter wherein not only was the depaiiure and arrival of the operatives have been duly recorded but also
the two (2) pieces of marked one hundred peso bills. The arrest of the accused was made after the police asset
had given the pre-arranged signal outside his house. The marked money was recovered from the very hand of the
accused while the deck of crystalline substances given to the asset upon the latter's handing over to the accused
the marked money has been turned over to the police by the asset. The crystalline substance when examined at
the police crime laboratory was found to contain methamphetamine hydrochloride a dangerous and prohibited
drug and weighed 0.09 gram.

These foregoing facts have been clearly testified to by the Prosecution witnesses who are members of the
Philippine Integrated National Police Force stationed at Batangas City. No ill-motive has been imputed to any of
these police officers prior to and at the time the herein accused was arrested on the night of December 16, 2002.

The accused and his wife as a defense denied the sale of shabu that fateful night. There were allegations in their
testimonies that the police demanded money from them. The wife of the accused even testified that she gave P
1,500.00 to the police officer who then eventually released said accused. And early on, she even claimed money
and a cellphone were missing after the accused was arrested in their house.

The testimonies of the accused and his wife are bereft of any corroborating evidence emanating from a
disinterested source. It is no less than self-serving devoid of any credence considering the following
circumstances:

1. Scrutinizing the entirety of the testimony of the accused and his wife Crisanta Andaya, there are
material variances gleaned therefrom. The accused himself never testified that he was pushed to a chair
and yet witness Crisanta Andaya said she saw her husband pushed to a chair. Also, the accused said there
were two guns poked at him when he opened the door but his wife said only one was holding a gun
while another had a long firearm on his shoulder.

2. The testimony of the accused was that only ₱500.00 was taken by the police before his release. But
the wife said ₱1,500.00 was given to the police before the accused was released. 3. The accused and his
wife never made any complaint to the proper authorities as regards the alleged loss of money and
cellphone when the accused was arrested on December 16, 2002. Neither was there any complaint filed
by them for the alleged ₱500.00 or Pl1500.00 demanded from and given by them to the police.

4. The accused was a resident of Barangay San Jose Sico, Batangas City since the 1980's why was it that
it was at Rosario, Batangas where the accused was arrested. The Defense gave no evidence to contest the
presumption of guilt based on flight.

5. It is significant to note also that the accused never bothered to ask who was knocking at his door past
9:00 o'clock in the evening. While his family was already lying in bed to sleep he was still watching T.V.
These actuations of the accused tend to support the fact that the police asset had made a deal with the
accused for the sale of shabu and was expecting the asset to come that night.

In the light of all foregoing considerations, the Court is left with no alternative than to find the herein accused
criminally liable for the offense charged in the information.

Wherefore, accused Pablito Andaya y Reano is found GUILTY beyond reasonable doubt of violating Section 5,
Article II of Republic Act No. 9165. He is therefore sentenced to undergo life imprisonment and to pay the costs
of this action. The 0.09 gram of methamphetamine hydrochloride subject of this case is confiscated and directed
to be proceeded against pursuant to law.

The accused may be credited with his preventive imprisonment if he is entitled to any.

SO ORDERED.6

Decision of the CA
In his appeal, Andaya contended:

I.

THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THE ACCUSED-APPELLANT'S

SEARCH AND ARREST AS ILLEGAL.

II.

THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT OF THE

CRIME CHARGED DESPITE THE FAIL URE OF THE PROSECUTION TO PROVE HIS GUILT
BEYOND REASONABLE DOUBT.7

On February 11, 2008, the CA promulgated its assailed decision affirming the conviction,8 viz:

WHEREFORE, in view of the foregoing, the appeal is DISMISSED. The decision of Branch IV, RTC, Fourth
Judicial Region, Batangas City, in Criminal Case No. 12771 is AFFIRMED in toto.

SO ORDERED.9

Issues

Hence, Andaya appeals, insisting that the search of his house and his person and his arrest by the police officers
violated his constitutional right against unreasonable searches and seizures; and that the Prosecution's
nonpresentation of the confidential informant was adverse to the Prosecution, indicating that his guilt was not
proved beyond reasonable doubt.

Ruling

The appeal is meritorious.

To secure the conviction of the accused who is charged with the illegal sale of dangerous drugs as defined and
punished by Section 5, Article II of Republic Act No. 9165 (Comprehensive Drugs Act of 2002), the State must
establish the concurrence of the following elements, namely: (a) that the transaction or sale took place between
the accused and the poseur buyer; and ( b) that the dangerous drugs subject of the transaction or sale is presented
in court as evidence of the corpus delicti.10

We reiterate that a buy-bust operation is a valid and legitimate form of entrapment of the drug pusher.11 In such
operation, the poseur buyer transacts with the suspect by purchasing a quantity of the dangerous drug and paying
the price agreed upon, and in turn the drug pusher turns over or delivers the dangerous drug subject of their
agreement in exchange for the price or other consideration. Once the transaction is consummated, the drug
pusher is arrested, and can be held to account under the criminal law. The justification that underlies the
legitimacy of the buy-bust operation is that the suspect is arrested in jlagranti delicto, that is, the suspect has just
committed, or is in the act of committing, or is attempting to commit the offense in the presence of the arresting
police officer or private person.12 The arresting police officer or private person is favored in such instance with
the presumption of regularity in the performance of official duty.

Proof of the transaction must be credible and complete. In every criminal prosecution, it is the State, and no
other, that bears the burden of proving the illegal sale of the dangerous drug beyond reasonable doubt.13 This
responsibility imposed on the State accords with the presumption of innocence in favor of the accused, who has
no duty to prove his innocence until and unless the presumption of innocence in his favor has been overcome by
sufficient and competent evidence.14

Here, the confidential informant was not a police officer. He was designated to be the poseur buyer himself. It is
notable that the members of the buy-bust team arrested Andaya on the basis of the pre-arranged signal from the
poseur buyer. The pre-arranged signal signified to the members of the buy-bust team that the transaction had
been consummated between the poseur buyer and Andaya. However, the State did not present the confidential
informant/poseur buyer during the trial to describe how exactly the transaction between him and Andaya had
taken place. There would have been no issue against that, except that none of the members of the buy-bust team
had directly witnessed the transaction, if any, between Andaya and the poseur buyer due to their being positioned
at a distance from the poseur buyer and Andaya at the moment of the supposed transaction.

The CA did not find anything wrong or odd in the non-presentation of the poseur buyer as a witness against the
accused. In fact, it justified the non-presentation as follows:

Appellant also questioned the failure of the prosecution to present the informer. The court is aware of the
considerations why confidential informants are usually not presented by the prosecution. There is the need to
hide their identity and preserve their invaluable service to the police. (People v. Khor, 307 SCRA 295 [1999],
citing People v. Gireng, 241 SCRA 11 [1995].) Foremost is the desire to protect them from being objects or
targets of revenge by the criminals they implicate once they become known. (People vs. Ong, G.R. No. 137348,
June 21, 2004.)

In People vs Lopez (214 SCRA 323), it was held that there was no need for the prosecution to present the
confidential informer as the poseur buyer himself positively identified the accused as the one who sold to him
one deck of methamphetamine hydrochloride or "shabu." The trial court then properly relied on the testimonies
of the police officers despite the decision of the prosecution not to present the informer.15

The foregoing justification by the CA was off-tangent and does not help the State's cause any. 1âwphi1 It is
obvious that the rulings cited to supp01i the need to conceal the confidential infonnants' identities related to the
confidential informants who gave information against suspected drug dealers. The presentation of the
confidential informants as witnesses for the Prosecution in those instances could be excused because there were
poseur buyers who directly incriminated the accused. In this case, however, it was different, because the poseur
buyer and the confidential informant were one and the same. Without the poseur buyer's testimony, the State did
not credibly incriminate Andaya.

Indeed, Section 5 of Republic Act No. 9165 punishes "any person, who, unless authorized by law, shall sell,
trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any
dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or
shall act as a broker in any of such transactions." Under the law, selling was any act "of giving away any
dangerous drug and/or controlled precursor and essential chemical whether for money or any other
consideration;"16 while delivering was any act "of knowingly passing a dangerous drug to another, personally or
otherwise, and by any means, with or without consideration."17 Given the legal characterizations of the acts
constituting the offense charged, the members of the buy-bust team could not incriminate Andaya by simply
declaring that they had seen from their positions the poseur buyer handing something to Andaya who, in turn,
gave something to the poseur buyer. If the transaction was a sale, it was unwarranted to infer from such
testimonies of the members of the buy-bust team that what the poseur buyer handed over were the marked
₱100.00 bills and that what Andaya gave to the poseur buyer was the shabu purchased.

Another mark of suspicion attending the evidence of guilt related to the reliance by the members of the buy-bust
team on the pre-arranged signal from the poseur buyer. To start with, the record does not show what the
prearranged signal consisted of. It is fundamental enough to expect the State to be clear and definite about its
evidence of guilt, particularly here where the conviction of Andaya would require him to spend the rest of his
natural life behind bars. Nothing less should be done here. Secondly, the reliance on the supposed signal to
establish the consummation of the transaction between the poseur buyer and Andaya was unwarranted because
the unmitigatedly hearsay character of the signal rendered it entirely bereft of trustworthiness. The arresting
members of the buy-bust team interpreted the signal from the anonymous poseur buyer as the sign of the
consummation of the transaction. Their interpretation, being necessarily subjective without the testimony of the
poseur buyer, unfairly threatened the liberty of Andaya. We should not allow that threat to perpetuate itself. And,
lastly, the reliance on the signal would deprive Andaya the right to confront and test the credibility of the poseur
buyer who supposedly gave it.

We should look at the situation of Andaya with utmost caution because of what our judicial experience through
the years has told us about unscrupulous lawmen resorting to stratagems of false incrimination in order to arrest
individuals they target for ulterior reasons. In this case, the arrest did not emanate from probable cause, for the
formless signal from the anonymous poseur buyer did not establish beyond reasonable doubt the elements of
illegal sale of dangerous drugs under Section 5 of Republic Act No. 9165.1âwphi1

In affirming the RTC's conviction of the accused, the CA observed that the defense of frame-up put up by the
accused was discredited by the absence of proof of "any intent on the paii of the police authorities to falsely
impute such crime against the accused, the presumption of regularity in the performance of official duty
stands."18 Such outright rejection by the lower courts of Andaya's defense of frame-up is not outrightly binding.
For sure, the frame-up defense has been commonly used in prosecutions based on buy-bust operations that have
led to the an-est of the suspects.19 Its use might be seen as excessive, but the failure of the accused to impute
any ill motives to falsely incriminate them should not deter us from scrutinizing the circumstances of the cases
brought to us for review. We should remind ourselves that we cannot presume that the accused committed the
crimes they have been charged with. The State must fully establish that for us. If the imputation of ill motive to
the lawmen is the only means of impeaching them, then that would be the end of our dutiful vigilance to protect
our citizenry from false arrests and wrongful incriminations. We are aware that there have been in the past many
cases of false arrests and wrongful incriminations, and that should heighten our resolve to strengthen the
ramparts of judicial scrutiny.

Nor should we shirk from our responsibility of protecting the liberties of our citizenry just because the lawmen
are shielded by the presumption of the regularity of their performance of duty. The presumed regularity is
nothing but a purely evidentiary tool intended to avoid the impossible and time-consuming task of establishing
every detail of the performance by officials and functionaries of the Government. Conversion by no means
defeat the much stronger and much firmer presumption of innocence in favor of every person whose life,
property and liberty comes under the risk of forfeiture on the strength of a false accusation of committing some
crime.20 The criminal accusation against a person must be substantiated by proof beyond reasonable doubt. The
Court should steadfastly safeguard his right to be presumed innocent. Although his innocence could be doubted,
for his reputation in his community might not be lily-white or lustrous, he should not fear a conviction for any
crime, least of all one as grave as drug pushing, unless the evidence against him was clear, competent and
beyond reasonable doubt. Otherwise, the presumption of innocence in his favor would be rendered empty.

WHEREFORE, the Court REVERSES and SETS ASIDE the decision promulgated on February 11, 2008;
ACQUITS accused Pablito Andaya y Reano for failure to prove his guilt beyond reasonable doubt; and
ORDERS his immediate release from confinement at the National Penitentiary in Muntinlupa City.

The Court DIRECTS that the Director of the Bureau of Corrections to implement the immediate release of
Pablito Andaya y Reano, unless he is confined for any other lawful cause; and to report his compliance within
ten days from receipt. SO ORDERED.

G.R. No. 188133 July 7, 2014

PEOPLE OF THE PHILIPPINES, Appellee,
vs.
OLIVER RENATO EDAÑO y EBDANE, Appellant.

DECISION

BRION, J.:

We resolve in this appeal the challenge to the October 16, 2008 Decision1 and the December 23, 2008
resolution2 of the Court of Appeals (CA) in CA-G.R. CR HC No. 01142. The challenged CA decision affirmed
the April 22, 2004 joint decision3 of the Regional Trial Court (RTC), Branch 103, Quezon City, finding appellant
Oliver Renato Edafio guilty beyond reasonable doubt of violating Section 11, Article II of Republic Act (R.A.)
No. 9165 (the Comprehensive Dangerous Drugs Act of 2002), and imposing on him the penalty of life
imprisonment. The assailed resolution, on the other hand, denied the appellant's motion for reconsideration.

BACKGROUND FACTS

The prosecution charged the appellant and Godofredo Siochi with violation of Section 11, Article II of R.A. No.
9165 under two separate Informations, docketed as Criminal Case Nos. Q-02-111200 and Q-02-112104.

The appellant and Siochi pleaded not guilty to the charge on arraignment. Joint trial on the merits followed.

The prosecution presented, as itswitnesses, Police Inspector (P/Insp.) Aylin Casignia and Police Officer (PO) 3
Elmer Corbe. The appellant, Siochi and Ruben Forteza took the witness stand for the defense.

The evidence for the prosecution established that on the evening of August 6, 2002, members of the Metro
Manila Drugs Enforcement Group, composed of PO3 Corbe, PO3 Nelson Javier, PO3 Dennis Padpad, PO3
Marcelo Alcancia, Jr., together with a female informant, went to the parking area of McDonalds, West Avenue to
conduct an entrapment operation against a certain alias "Nato."4

At around 7:00 p.m., the appellant arrived on board a space wagon driven by Siochi. 5 The informant approached
the appellant and talked to him inside the vehicle. Afterwards, the informant waved at PO3 Corbe. 6 When PO3
Corbe was approaching the appellant, the latter went out of the vehicle and ran away. PO3 Corbe, PO3 Padpad
and PO3 Alcancia chased the appellant; PO3 Corbe was able to grab the appellant, causing the latter to fall on
the ground. PO3 Corbe recovered a "knot-tied" transparent plastic bag from the appellant’s right hand, while
PO3 Alcancia seized a gun tucked in the appellant’s waist. The other members of the police arrested Siochi.
Thereafter, the police brought the appellant, Siochi and the seized items to the police station for investigation.7

P/Insp. Casignia, the Forensic Chemical Officer of the Western Police District Crime Laboratory, examinedthe
seized items and found them positive for the presence of shabu.8

The appellant, for his part, testified that at around 4:00 p.m. on August 6, 2002, he called Siochi on the phone,
and informed him that the motorbike starter the latter needed was already available.9 On the same day, Vanessa
Paduada called the appellant, and asked for the directions to McDonalds, West Avenue.10 At around 6:00 p.m.,
Siochi and Ruben arrived at the gate of Philam Homes on board a space wagon. The appellant met them at the
subdivision gate, and showed the starter to Siochi. Thereafter, Vanessa called on the appellant’s cellular phone.
The appellant then boarded the vehicle, and told Siochi that he would just talk to a person at McDonalds.11
When the space wagon arrived at McDonalds, the appellant alighted from the vehicle and proceeded towards the
restaurant’s entrance. Afterwards, Vanessa called him from inside a parked car. The appellant approached
Vanessa who, for her part, alighted from the car. Vanessa told the appellant to get inside the car’s rear. The
appellant did as instructed; Vanessa went to the front passenger seat, beside a male driver. 12 Immediately after,
the male driver alighted from the vehicle and entered the car’s rear. The appellant went out of the car, but the
male driver followed him and grabbed his hand. The appellant resisted, and wrestled with the driver along West
Avenue. During this commotion, the appellant heard a gunfire; four (4) persons approached him, and then tied
his hands with a masking tape.13 The police placed him on board a pick-up truck, and then brought him to
Bicutan. In Bicutan, the police brought him to the interrogation room, where they punched him and placed a
plastic on his head.14

In its joint decision dated April 22, 2004, the RTC found the appellant guilty beyond reasonable doubt of illegal
possession of shabu under Section 11, Article II of R.A. No. 9165, and sentenced him to suffer the penalty of life
imprisonment. It also ordered him to pay a ₱500,000.00 fine.

The RTC, however, acquitted Siochi on the ground of reasonable doubt.

On appeal, the CA affirmed the RTC decision in toto. The CA found PO3 Corbe to be a credible witness. The CA
also found the appellant’s warrantless arrest to be valid; it explained that the appellant’s act of running when
PO3 Corbe was approaching him reinforced the latter’s suspicion that "something was amiss."15

The CA added that strict compliance with Section 21, Article II of R.A. No. 9165 was not required as long asthe
integrity of the seized item had been ensured. It further held that the police officers were presumed to have
regularly performed their official duties.

Finally, the CA held that the prosecution was able to establish all the elements of illegal possession of shabu.

The appellant moved to reconsider this decision, but the CA denied his motion in its resolution dated December
23, 2008.

In his brief16 and supplemental brief,17 the appellant essentially alleged that PO3 Corbe’s testimony was "vague
and equivocal;"18 it lacked details on how the appellant was lured to sell shabu to the informant, and how the
entrapment operation had been planned. The appellant also argued that his warrantless arrest was illegal since he
was not committing any crime when the police arrested him. He alsoclaimed that the police did not mark and
photograph the seized items, and that there was a broken chain of custody over the confiscated drugs.

The Office of the Solicitor General (OSG) counters with the argument that the testimony of PO3 Corbe was clear
and convincing; the inconsistencies in his court testimony pertained only to minor details. It also claimed that the
appellant’s arrest was valid, and the seized shabu was admissible in evidence. Finally, the OSG maintained that
there was no break in the chain of custody over the seized plastic bag containing shabu.19

THE COURT’S RULING

After due consideration, we resolve to ACQUITthe appellant.

Warrantless arrest invalid; seized

items inadmissible

Section 5(a), Rule 113 of the Rules of Criminal Procedure provides that 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. This is known an arrest in flagrante delicto.20

"For a warrantless arrest of an accused caught in flagrante delictoto be valid, two requisites must concur: (1) the
person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or
is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting
officer."21

In the present case, there was no overt act indicative of a felonious enterprise that could be properly attributed to
the appellant to rouse suspicion in the mind of PO3 Corbe that he (appellant) had just committed, was actually
committing, or was attempting to commit a crime. In fact, PO3 Corbe testified that the appellant and the
informant were just talking with each otherwhen he approached them. For clarity and certainty, we reproduce
PO3 Corbe’s court testimony dated February 21, 2003, thus:

ATTY. RENATO SARMIENTO:

Q: You and the informant were not able to approach Nato because he sense[d] that you are (sic) a policeman?

PO3 CORBE:

A: Our informant first approached Renato Edano[,] and they talked but when he (sic) called me, Renato run
(sic), sir.

Q: You said tinawag ka[,] who was that that call (sic) you?

A: Team informant, sir.

xxxx

Q: How did she call you?

A: She waived (sic) her had (sic), sir.

Q: What was she doing?

A: She was talking to Alias Nato[,] sir.

Q: Did you hear what they are talking? (sic)

A: I was still in the car[.] I was not able to hear[,] sir.

Q: How would you know that they are talking, Mr. Witness? (sic)

A: I could see them, sir.

Q: What did you see?

A: They were talking, sir.

Q: They were not exchanging stuff and money, Mr. witness?

A: Not yet, sir.

Q: While talking[,] the female informant call[ed] you, Mr. Witness?

A: Yes, sir.22 (emphases ours)

As testified to by PO3 Corbe himself, the appellant and the informant were just talking to each other; there was
no exchange of money and drugs when he approached the car. Notably,while it is true that the informant waved
at PO3 Corbe, the latter admitted that this was not the pre-arranged signal to signify that the sale of drugs had
been consummated. PO3 Corbe also admitted on cross-examination that he had no personal knowledge on
whether there was a prohibited drug and gun inside the space wagon when he approached it.

That the appellant attempted to run away when PO3 Corbe approached him is irrelevant and cannot by itself be
construed as adequate to charge the police officer with personal knowledge that the appellant had just engaged
in, was actually engaging in or was attempting to engage in criminal activity.

As the Court explained in People v. Villareal:23

Furthermore, appellant’s act of darting away when PO3 de Leon approached him should not be construed against
him. Flight per seis not synonymous with guilt and must not always be attributed to one’s consciousness of
guilt.It is not a reliable indicator of guilt without other circumstances, for even in high crime areas there are
many innocent reasons for flight, including fear of retribution for speaking to officers, unwillingness to appear as
witnesses,and fear of being wrongfully apprehended as a guilty party.Thus, appellant’s attempt to run away from
PO3 de Leon is susceptible of various explanations; it could easily have meant guilt just as it could likewise
signify innocence.24

In other words, trying to run awaywhen no crime has been overtly committed, and without more, cannot be
evidence of guilt.

Considering that the appellant’s warrantless arrest was unlawful, the search and seizure that resulted from it was
likewise illegal. Thus, the alleged plastic bag containing white crystalline substances seized from him is
inadmissible in evidence, having comefrom an invalid search and seizure.

Corpus delicti not proved with moral

certainty

Even granting, for the sake ofargument, that the appellant’s warrantless arrest was valid, the latter’s acquittal is
still in order due to the prosecution’s failure to establish the evidence of the corpus delictiwith moral certainty.

We stress that "[t]he existence of dangerous drugs is a condition sine qua nonfor conviction for the illegal sale
and possession of dangerous drugs, it being the verycorpus delictiof the crimes."25 Thus, the evidence of the
corpus delictimust be established beyond reasonable doubt.

In the present case, the various lapses – enumerated and discussed below – committed by the police in the
handling, safekeeping and custody over the seized drug tainted the integrity and evidentiary value of the
confiscated shabu.

First, we find it highly unusual and irregular that the police officers would let the appellant mark the drugs seized
from him, instead of doing the marking themselves. To directly quote from the records:

ATTY. SARMIENTO:

Q: This item was not marked at the place allegedly where you apprehended the suspect at McDonald’s, West
Avenue, Quezon City, am I correct to say that?
PO3 CORBE:

A: Yes, sir.

Q: You are also required not only tomark it but to put your initial to it, my question did you place your initial in
this evidence? (sic)

A: No, sir.

Q: You did not, Mr. Witness?

A: No, sir.

Q: You were also required to put the date of apprehension, being the arresting officer, did you put the date in this
evidence, Mr. Witness?

A: No, sir.

Q: Why did you not do that, Mr. Witness?

A: What I remembered there is an initial of the accused, sir.

Q: Who put the initial, Mr. Witness?

A: He was the one, sir.

Q: At your station?

A: Yes, sir.

Q: You did not put your initial?

A: No, sir.

Q: Why did you not put your initial?

A: I was not able to put sir.26 (emphases ours)

Marking, as used in drug cases, means the placing by the apprehending officer or the poseur-buyerof his/her
initials and signature on the item/s seized. "Consistency with the "chain of custody" rule requires that the
"marking" of the seized items - to truly ensure that they are the same items that enter the chain and are
eventually the ones offered in evidence - should be done (1) in the presence of the apprehended violator (2)
immediately upon confiscation."27 The Court clarified in People v. Resurreccion28 that marking upon
immediate confiscation contemplates even marking at the nearest police station or office of the apprehending
team. Thus, while marking of the seized drugs at the police station is permitted, the marking should be done by
the police, and not by the accused. The appellant’s participation inthe marking procedure should only be as a
witness. Why the police failed to do a basic police procedure truly baffles us.

We also point out that per the testimony of P/Insp. Casignia, the Forensic Chemical Officer, the police forwarded
two (2) plastic bags containing white crystalline substances to the crime laboratory for examination – one
marked with the initials "OR" and the other marked with "GS." Both plastic bags were used asevidence against
the appellant. The records, however, did not indicate who marked the plastic bag with "GS," who witnessed this
marking, and whenthis marking had been made. As with the bag that had been marked "OR," we express doubts
on whether the plastic bag containing white crystalline substances marked as "GS" was the same plastic bag
taken from the appellant’s co-accused, Siochi.

Second, the police did not inventory or photographthe seized drugs, whether at the place of confiscation or at the
police station.1avvphi1 These omissions were admitted by the prosecution during pre-trial.29

The required procedure on the seizure and custody of drugs is embodied in Section 21, paragraph 1,Article II of
R.A. No. 9165, which states:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventoryand photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the
media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the
copies of the inventory and be given a copy thereof[.] [emphases ours]

This is implemented by Section 21 (a), Article II of theImplementing Rules and Regulations(IRR) of R.A. No.
9165, which reads:

(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure
and confiscation, physically inventoryand photograph the same in the presence of the accused or the person/s
from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from
the media and the Department of Justice (DOJ), and any elected public official who shall berequired to sign the
copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall
be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest
office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided,
further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the
evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render
void and invalid such seizures of and custody over said items[.] [emphasis ours]

To be sure, Section 21(a), Article II of the IRR offers some flexibility in complying with the express
requirements under paragraph 1, Section 21, Article II of R.A. No. 9165, i.e.,"non-compliance with these
requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are
properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and
custody over said items[.]"This saving clause, however, applies only where the prosecution recognized the
procedural lapses and thereafter explained the cited justifiable grounds, and when the prosecution established
that the integrity and evidentiary value of the evidence seized had been preserved.30

These conditions were not met in the present case, as the prosecution did not even attempt to offer any
justification for its failure to follow the prescribed procedures in the handling and safekeeping of the seized
items. "We stress that it is the prosecution who has the positive duty to establish that earnest efforts were
employed in contacting the representatives enumerated under Section 21[a] of R.A. No. 9165, or that there was a
justifiable ground for failing to do so."31 The Court cannot simply presume what these justifications are.

Although the Court has recognized that minor deviations from the procedures under R.A. No. 9165 would not
automatically exonerate an accused, we have also declared that when there is gross disregard of the procedural
safeguards prescribed inthe substantive law (R.A. No. 9165), serious uncertainty is generated about the identity
of the seized items that the prosecution presented in evidence. This doubt cannot be remedied by simply
invoking the presumption of regularity in the performance of official duties, for a gross, systematic, or deliberate
disregard of the procedural safeguards effectively produces an irregularity in the performance of official
duties.32

In sum, we hold that the appellant’s acquittal is in order since theshabupurportedly seized from him is
inadmissible in evidence for being the proverbial fruit of the poisonous tree. Corollarily, the prosecution's failure
to comply with Section 21, Article II of R.A. No. 9165, and with the chain of custody requirement of this Act,
compromised the identity of the item seized, leading to the failure to adequately prove the corpus delictiof the
crime charged.

WHEREFORE, premises considered, we REVERSEand SET ASIDEthe October 16, 2008 decision and the
December 23, 2008 resolution of the Court of Appeals in CA-G.R. CR HC No. 01142. Appellant Oliver Renato
Edaño y Ebdane is hereby ACQUITTEDfor failure of the prosecution to prove his guilt beyond reasonable
doubt. He is ordered immediately RELEASEDfrom detention unless heis otherwise legally confined for another
cause.

Let a copy of this Decision be sent to the Director of the Bureau of Corrections, Muntinlupa City, for immediate
implementation.1âwphi1 The Director of the Bureau of Corrections is directed to report the action he has taken
to this Court within five (5) days from receipt of this Decision.

SO ORDERED.

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G.R. No. 180661 December 11, 2013

GEORGE ANTIQUERA y CODES, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

ABAD, J.:

This case is about a supposed warrantless arrest and a subsequent search prompted by the police officers' chance
sighting through an ajar door of the accused engaged in pot session.

The Facts and the Case

On January 13, 2004 the second Assistant City Prosecutor of Pasay City charged the accused George Codes
Antiquera* and Corazon Olivenza Cruz with illegal ·possession of paraphernalia for dangerous drugs 1 before
the Regional Trial Court (RTC) of Pasay City in Criminal Case 04-0100-CFM. 2 Since the accused Cruz jumped
bail, the court tried her in absentia. 3

The prosecution evidence shows that at around 4:45 a.m. of February 11, 2004, PO1 Gregorio Recio, PO1
Laurence Cabutihan, P/Insp. Eric Ibon, PO1 Rodelio Rania, and two civilian operatives on board a patrol car and
a tricycle were conducting a police visibility patrol on David Street, Pasay City, when they saw two unidentified
men rush out of house number 107-C and immediately boarded a jeep.

Suspecting that a crime had been committed, the police officers approached the house from where the men came
and peeked through the partially opened door. PO1 Recio and PO1 Cabutihan saw accused Antiquera holding an
improvised tooter and a pink lighter. Beside him was his live-in partner, Cruz, who was holding an aluminum
foil and an improvised burner. They sat facing each other at the living room. This prompted the police officers to
enter the house, introduce themselves, and arrest Antiquera and Cruz.4

While inspecting the immediate surroundings, PO1 Cabutihan saw a wooden jewelry box atop a table. It
contained an improvised burner, wok, scissors, 10 small transparent plastic sachets with traces of white
crystalline substance, improvised scoop, and seven unused strips of aluminum foil. The police officers
confiscated all these and brought Antiquera and Cruz to the Drug Enforcement Unit of the Philippine National
Police in Pasay City for further investigation and testing.5

A forensic chemical officer examined the confiscated drug paraphernalia and found them positive for traces of
methamphetamine hydrochloride or "shabu."6

Accused Antiquera gave a different story. He said that on the date and time in question, he and Cruz were asleep
in their house when he was roused by knocking on the door. When he went to open it, three armed police officers
forced themselves into the house. One of them shoved him and said, " D’yan ka lang, pusher ka." He was
handcuffed and someone instructed two of the officers to go to his room. The police later brought accused
Antiquera and Cruz to the police station and there informed them of the charges against them. They were shown
a box that the police said had been recovered from his house.7

On July 30, 2004 the RTC rendered a Decision8 that found accused Antiquera and Cruz guilty of the crime
charged and sentenced them to a prison term ranging from six months and one day to two years and four months,
and to pay a fine of ₱10,000.00 each and the costs of the suit.

The RTC said that the prosecution proved beyond reasonable doubt that the police caught accused Antiquera and
Cruz in the act of using shabu and having drug paraphernalia in their possession. Since no ill motive could be
attributed to PO1 Recio and PO1 Cabutihan, the court accorded full faith and credit to their testimony and
rejected the self-serving claim of Antiquera.

The trial court gave no weight to accused Antiquera’s claim of illegal arrest, given PO1 Recio and PO1
Cabutihan’s credible testimony that, prior to their arrest, they saw Antiquera and Cruz in a pot session at their
living room and in possession of drug paraphernalia. The police officers were thus justified in arresting the two
without a warrant pursuant to Section 5, Rule 113 of the Rules of Criminal Procedure.9

On appeal, the Court of Appeals (CA) rendered a Decision10 on September 21, 2007 affirming in full the
decision of the trial court. The accused moved for reconsideration but the CA denied it.11 The accused is now
before this Court seeking acquittal.

The Issue Presented

The issue in this case is whether or not the CA erred in finding accused Antiquera guilty beyond reasonable
doubt of illegal possession of drug paraphernalia based on the evidence of the police officers that they saw him
and Cruz in the act of possessing drug paraphernalia.

Ruling of the Court

The prosecution’s theory, upheld by both the RTC and the CA, is that it was a case of valid warrantless arrest in
that the police officers saw accused Antiquera and Cruz through the door of their house, in the act of having a
pot session. That valid warrantless arrest gave the officers the right as well to search the living room for objects
relating to the crime and thus seize the paraphernalia they found there.
The prosecution contends that, since the seized paraphernalia tested positive for shabu, they were no doubt used
for smoking, consuming, administering, injecting, ingesting, or introducing dangerous drug into the body in
violation of Section 12 of Republic Act 9165. That the accused tested negative for shabu, said the prosecution,
had no bearing on the crime charged which was for illegal possession of drug paraphernalia, not for illegal use of
dangerous drugs. The prosecution added that even assuming that the arrest of the accused was irregular, he is
already considered to have waived his right to question the validity of his arrest when he voluntarily submitted
himself to the court’s jurisdiction by entering a plea of not guilty.12

Section 5(a), Rule 113 of the Rules of Criminal Procedure provides that 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." This is an arrest in flagrante delicto.13 The overt act
constituting the crime is done in the presence or within the view of the arresting officer.14

But the circumstances here do not make out a case of arrest made in flagrante delicto.

1. The police officers claim that they were alerted when they saw two unidentified men suddenly rush out of 107
David Street, Pasay City. Since they suspected that a crime had been committed, the natural thing for them to do
was to give chase to the jeep that the two fleeing men boarded, given that the officers were in a patrol car and a
tricycle. Running after the fleeing suspects was the more urgent task but the officers instead gave priority to the
house even when they heard no cry for help from it.

2. Admittedly, the police officers did not notice anything amiss going on in the house from the street where they
stood. Indeed, even as they peeked through its partially opened door, they saw no activity that warranted their
entering it. Thus, PO1 Cabutihan testified:

THE COURT:

Q – By the way, Mr. Cabutihan, when you followed your companion towards the open door, how was the door
open? Was it totally open, or was it partially open?

A – It was partially open Your Honor.

Q – By how much, 1/3, 1/2? Only by less than one (1) foot?

A – More or less 4 to 6 inches, Your Honor.

Q – So how were you able to know, to see the interior of the house if the door was only open by 6 inches?
Or did you have to push the door?

A – We pushed the door, Your Honor.

xxxx

Q – Were you allowed to just go towards the door of the house, push its door and peeped inside it, as a police
officer?

A – Kasi po naghinala po kami baka may…

Q – Are you not allowed to – Are you not required to get a search warrant before you can search the interior of
the house?
A – Yes, Your Honor.

Q – What do you mean by yes? Would you first obtain a search warrant before searching the interior of the
house?

A – Yes, Your Honor.

Q – So why did you not a [sic] secure a search warrant first before you tried to investigate the house, considering
your admission that you suspected that there was something wrong inside the house?

A – Because we saw them that they were engaged in pot session, Your Honor.

Q – But before you saw them, you just had to push the door wide open to peep through its opening
because you did not know what was happening inside?

A – Yes, Your Honor.(Emphasis supplied)

Clearly, no crime was plainly exposed to the view of the arresting officers that authorized the arrest of accused
Antiquera without warrant under the above-mentioned rule. Considering that his arrest was illegal, the search
and seizure that resulted from it was likewise illegal. Consequently, the various drug paraphernalia that the
police officers allegedly found in the house and seized are inadmissible, having proceeded from an invalid
search and seizure. Since the confiscated drug paraphernalia is the very corpus delicti of the crime charged, the
Court has no choice but to acquit the accused.

One final note. The failure of the accused to object to the irregularity of his arrest by itself is not enough to
sustain his conviction. A waiver of an illegal warrantless arrest does not carry with it a waiver of the
inadmissibility of evidence seized during the illegal warrantless arrest.

WHEREFORE, the Court REVERSES and SETS ASIDE the Decision dated September 21, 2007 and
Resolution dated November 16, 2007 of the Court of Appeals in CA-G.R. CR 28937 and ACQUITS the accused
George Antiquera y Codes of the crime of which he is charged for lack of evidence sufficient to establish his
guilt beyond reasonable doubt.1âwphi1 The Court further ORDERS the cancellation and release of the bail bond
he posted for his provisional liberty.

SO ORDERED.
G.R.No. 74869 July 6, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
IDEL AMINNUDIN y AHNI, defendant-appellant.

The Solicitor General for plaintiff-appellee.

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

CRUZ, J.:

The accused-appellant claimed his business was selling watches but he was nonetheless arrested, tried and found
guilty of illegally transporting marijuana. The trial court, disbelieving him, held it was high time to put him away
and sentenced him to life imprisonment plus a fine of P20,000.00. 1

Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the M/V Wilcon 9 at about 8:30
in the evening, in Iloilo City. The PC officers who were in fact waiting for him simply accosted him, inspected
his bag and finding what looked liked marijuana leaves took him to their headquarters for investigation. The two
bundles of suspect articles were confiscated from him and later taken to the NBI laboratory for examination.
When they were verified as marijuana leaves, an information for violation of the Dangerous Drugs Act was filed
against him. 2 Later, the information was amended to include Farida Ali y Hassen, who had also been arrested
with him that same evening and likewise investigated. 3 Both were arraigned and pleaded not guilty. 4
Subsequently, the fiscal filed a motion to dismiss the charge against Ali on the basis of a sworn statement of the
arresting officers absolving her after a 'thorough investigation." 5 The motion was granted, and trial proceeded
only against the accused-appellant, who was eventually convicted .6

According to the prosecution, the PC officers had earlier received a tip from one of their informers that the
accused-appellant was on board a vessel bound for Iloilo City and was carrying marijuana. 7 He was Identified
by name. 8 Acting on this tip, they waited for him in the evening of June 25, 1984, and approached him as he
descended from the gangplank after the informer had pointed to him. 9 They detained him and inspected the bag
he was carrying. It was found to contain three kilos of what were later analyzed as marijuana leaves by an NBI
forensic examiner, 10 who testified that she conducted microscopic, chemical and chromatographic tests on
them. On the basis of this finding, the corresponding charge was then filed against Aminnudin.

In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag was his clothing
consisting of a jacket, two shirts and two pairs of pants. 11 He alleged that he was arbitrarily arrested and
immediately handcuffed. His bag was confiscated without a search warrant. At the PC headquarters, he was
manhandled to force him to admit he was carrying the marijuana, the investigator hitting him with a piece of
wood in the chest and arms even as he parried the blows while he was still handcuffed. 12 He insisted he did not
even know what marijuana looked like and that his business was selling watches and sometimes cigarettes. 13
He also argued that the marijuana he was alleged to have been carrying was not properly Identified and could
have been any of several bundles kept in the stock room of the PC headquarters. 14

The trial court was unconvinced, noting from its own examination of the accused that he claimed to have come
to Iloilo City to sell watches but carried only two watches at the time, traveling from Jolo for that purpose and
spending P107.00 for fare, not to mention his other expenses. 15 Aminnudin testified that he kept the two
watches in a secret pocket below his belt but, strangely, they were not discovered when he was bodily searched
by the arresting officers nor were they damaged as a result of his manhandling. 16 He also said he sold one of
the watches for P400.00 and gave away the other, although the watches belonged not to him but to his cousin, 17
to a friend whose full name he said did not even know. 18 The trial court also rejected his allegations of
maltreatment, observing that he had not sufficiently proved the injuries sustained by him. 19

There is no justification to reverse these factual findings, considering that it was the trial judge who had
immediate access to the testimony of the witnesses and had the opportunity to weigh their credibility on the
stand. Nuances of tone or voice, meaningful pauses and hesitation, flush of face and dart of eyes, which may
reveal the truth or expose the lie, are not described in the impersonal record. But the trial judge sees all of this,
discovering for himself the truant fact amidst the falsities.
The only exception we may make in this case is the trial court's conclusion that the accused-appellant was not
really beaten up because he did not complain about it later nor did he submit to a medical examination. That is
hardly fair or realistic. It is possible Aminnudin never had that opportunity as he was at that time under detention
by the PC authorities and in fact has never been set free since he was arrested in 1984 and up to the present. No
bail has been allowed for his release.

There is one point that deserves closer examination, however, and it is Aminnudin's claim that he was arrested
and searched without warrant, making the marijuana allegedly found in his possession inadmissible in evidence
against him under the Bill of Rights. The decision did not even discuss this point. For his part, the Solicitor
General dismissed this after an all-too-short argument that the arrest of Aminnudin was valid because it came
under Rule 113, Section 6(b) of the Rules of Court on warrantless arrests. This made the search also valid as
incidental to a lawful arrest.

It is not disputed, and in fact it is admitted by the PC officers who testified for the prosecution, that they had no
warrant when they arrested Aminnudin and seized the bag he was carrying. Their only justification was the tip
they had earlier received from a reliable and regular informer who reported to them that Aminnudin was arriving
in Iloilo by boat with marijuana. Their testimony varies as to the time they received the tip, one saying it was
two days before the arrest, 20 another two weeks 21 and a third "weeks before June 25." 22 On this matter, we
may prefer the declaration of the chief of the arresting team, Lt. Cipriano Querol, Jr., who testified as follows:

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

A Yes, sir.

Q When did you receive this intelligence report?

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

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

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

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

A Yes, sir.

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

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

COURT:

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

Q What were those activities?

A Purely marijuana trafficking.

Q From whom did you get thatinformation?

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

Q But you received it from your regular informer?

A Yes, sir.

ATTY. LLARIZA:

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

A Marijuana, sir.

Q And this information respecting Idel Aminnudin's coming to Iloilo with marijuana was received by you many
days before you received the intelligence report in writing?

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

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

A Yes, sir.

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

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

COURT:

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

A Yes, sir.

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

A Yes, sir.

Q Are you sure of that?

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

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

A Only on the 23rd of June.

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

A No, more.

Q Why not?

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

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

A Search warrant is not necessary

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

The mandate of the Bill of Rights is clear:

Sec. 2. The right of the people to be secure in their persons, houses, papers and effects 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.

In the case at bar, there was no warrant of arrest or search warrant issued by a judge after personal determination
by him of the existence of probable cause. Contrary to the averments of the government, the accused-appellant
was not caught in flagrante nor was a crime about to be committed or had just been committed to justify the
warrantless arrest allowed under Rule 113 of the Rules of Court. Even expediency could not be invoked to
dispense with the obtention of the warrant as in the case of Roldan v. Arca, 24 for example. Here it was held that
vessels and aircraft are subject to warrantless searches and seizures for violation of the customs law because
these vehicles may be quickly moved out of the locality or jurisdiction before the warrant can be secured.

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

In the many cases where this Court has sustained the warrantless arrest of violators of the Dangerous Drugs Act,
it has always been shown that they were caught red-handed, as a result of what are popularly called "buy-bust"
operations of the narcotics agents. 25 Rule 113 was clearly applicable because at the precise time of arrest the
accused was in the act of selling the prohibited drug.
In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was it
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 M/V 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. It was the
furtive finger that triggered his arrest. The Identification by the informer was the probable cause as determined
by the officers (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him.

Now that we have succeeded in restoring democracy in our country after fourteen years of the despised
dictatorship, when any one could be picked up at will, detained without charges and punished without trial, we
will have only ourselves to blame if that kind of arbitrariness is allowed to return, to once more flaunt its disdain
of the Constitution and the individual liberties its Bill of Rights guarantees.

While this is not to say that the accused-appellant is innocent, for indeed his very own words suggest that he is
lying, that fact alone does not justify a finding that he is guilty. The constitutional presumption is that he is
innocent, and he will be so declared even if his defense is weak as long as the prosecution is not strong enough
to convict him.

Without the evidence of the marijuana allegedly seized from Aminnudin, the case of the prosecution must fall.
That evidence cannot be admitted, and should never have been considered by the trial court for the simple fact is
that the marijuana was seized illegally. It is the fruit of the poisonous tree, to use Justice Holmes' felicitous
phrase. The search was not an incident of a lawful arrest because there was no warrant of arrest and the
warrantless arrest did not come under the exceptions allowed by the Rules of Court. Hence, the warrantless
search was also illegal and the evidence obtained thereby was inadmissible.

The Court strongly supports the campaign of the government against drug addiction and commends the efforts of
our law-enforcement officers against those who would inflict this malediction upon our people, especially the
susceptible youth. But as demanding as this campaign may be, it cannot be more so than the compulsions of the
Bill of Rights for the protection of the liberty of every individual in the realm, including the basest of criminals.
The Constitution covers with the mantle of its protection the innocent and the guilty alike against any manner of
high- handedness from the authorities, however praiseworthy their intentions.

Those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the
name of order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said, "I think it a less
evil that some criminals should escape than that the government should play an ignoble part." It is simply not
allowed in the free society to violate a law to enforce another, especially if the law violated is the Constitution
itself.

We find that with the exclusion of the illegally seized marijuana as evidence against the accused-appellant, his
guilt has not been proved beyond reasonable doubt and he must therefore be discharged on the presumption that
he is innocent.

ACCORDINGLY, the decision of the trial court is REVERSED and the accused-appellant is ACQUITTED. It is
so ordered.
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xxxviG.R. No. L-63630 April 6, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MEDEL TANGLIBEN Y BERNARDINO, defendant-appellant.

The Office of the Solicitor General for plaintiff-appellee.

Katz N. Tierra for defendant-appellant.

GUTIERREZ, JR., J.:

This is an appeal from the decision of the Regional Trial Court, Branch 41, Third Judicial Region at San
Fernando, Pampanga, Branch 41, finding appellant Medel Tangliben y Bernardino guilty beyond reasonable
doubt of violating Section 4, Article II of Republic Act 6425 (Dangerous Drugs Act of 1972 as amended) and
sentencing him to life imprisonment, to pay a fine of P20,000 and to pay the costs.

The information filed against the appellant alleged:

That on or about the 2nd day of March, 1982, in the municipality of San Fernando, Province of
Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused
MEDEL TANGLIBEN y BERNARDINO, knowing fully well that Marijuana is a prohibited drug, did
then and there willfully, unlawfully and feloniously have his possession, control and custody one (1) bag
of dried marijuana leaves with an approximate weight of one (1) kilo and to transport (sic) the same to
Olongapo City, without authority of law to do so. (At p. 6, Rollo)

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

It appears from the evidence presented by the prosecution that in the late evening of March 2, 1982,
Patrolmen Silverio Quevedo and Romeo L. Punzalan of the San Fernando Police Station, together with
Barangay Tanod Macario Sacdalan, were conducting surveillance mission at the Victory Liner Terminal
compound located at Barangay San Nicolas, San Fernando, Pampanga; that the surveillance was aimed
not only against persons who may commit misdemeanors at the said place but also on persons who may
be engaging in the traffic of dangerous drugs based on informations supplied by informers; that it was
around 9:30 in the evening that said Patrolmen noticed a person caring a traveling bag (Exhibit G) who
was acting suspiciously and they confronted him; that the person was requested by Patrolmen Quevedo
and Punzalan to open the red traveling bag but the person refused, only to accede later on when the
patrolmen identified themselves; that found inside the bag were marijuana leaves (Exhibit B) wrapped in
a plastic wrapper and weighing one kilo, more or less; that the person was asked of his name and the
reason why he was at the said place and he gave his name as Medel Tangliben and explained that he was
waiting for a ride to Olongapo City to deliver the marijuana leaves; that the accused was taken to the
police headquarters at San Fernando, Pampanga, for further investigation; and that Pat. Silverio Quevedo
submitted to his Station Commander his Investigator's Report (Exhibit F).
 It appears also from the prosecution's evidence that in the following morning or on March 3, 1982, Pat.
Silverio Quevedo asked his co-policeman Pat. Roberto Quevedo, who happens to be his brother and who
has had special training on narcotics, to conduct a field test on a little portion of the marijuana leaves and
to have the remaining portion examined by the PCCL at Camp Olivas, San Fernando, Pampanga; that
Pat. Roberto Quevedo conducted a field test (Exhibit H) on the marijuana leaves and found positive
result for marijuana (Exhibit E); that the remaining bigger quantity of the marijuana leaves were taken to
the PCCL at Camp Olivas by Pat. Roberto Quevedo that same day of March 3, 1982 (Exhibit A and A-1)
and when examined, the same were also found to be marijuana (Exhibit C and C-1). (At pp. 9-10, Rollo)

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

The accused declared that he got married on October 25, 1981 and his wife begot a child on June 10,
1982; that he was formerly employed in the poultry farm of his uncle Alejandro Caluma in Antipolo,
Rizal; that he is engaged in the business of selling poultry medicine and feeds, including chicks, and
used to conduct his business at Taytay, Rizal; that he goes to Subic at times in connection with his
business and whenever he is in Subic, he used to buy C-rations from one Nena Ballon and dispose the
same in Manila; that he never left his residence at Antipolo, Rizal, on March 2, 1982; that on March 3,
1982, he went to Subic to collect a balance of P100.00 from a customer thereat and to buy C-rations; that
he was able to meet Nena Ballon at 6:00 o'clock in the evening and he stayed in Nena's house up to 8:00
o'clock because he had a drinking spree with Nena's son; that he tried to catch the 8:00 o'clock trip to
Manila from Olongapo City but he failed and was able to take the bus only by 9:00 o'clock that evening
that it was a Victory Liner Bus that he rode and because he was tipsy, he did not notice that the bus was
only bound for San Fernando, Pampanga; that upon alighting at the Victory Liner Compound at San
Fernando, Pampanga he crossed the street to wait for a bus going to Manila; that while thus waiting for a
bus, a man whom he came to know later as Pat. Punzalan, approached him and asked him if he has any
residence certificate; that when he took out his wallet, Pat. Punzalan got the wallet and took all the
money inside the wallet amounting to P545.00; that Pat. Punzalan told him that he'll be taken to the
municipal building for verification as he may be an NPA member; that at the municipal building, he saw
a policeman, identified by him later as Pat. Silverio Quevedo, sleeping but was awakened when he
arrived that Pat. Quevedo took him upstairs and told him to take out everything from his pocket saying
that the prisoners inside the jail may get the same from him; that inside his pocket was a fifty-peso bill
and Pat. Quevedo took the same, telling him that it shall be returned to him but that it was never returned
to him; that he was thereafter placed under detention and somebody told him that he is being charged
with possession of marijuana and if he would like to be bailed out, somebody is willing to help him; and,
that when he was visited by his wife, he told his wife that Patrolman Silverio Quevedo took away all his
money but he told his wife not to complain anymore as it would be useless. (Rollo, pp. 10-11)

Appellant, through counsel de oficio Atty. Enrique Chan, raised the lone assignment of error in his appeal:

THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANT AND FINDING HIM
GUILTY OF THE CRIME CHARGED ON INSUFFICIENT AND DOUBTFUL EVIDENCE. (At p. 48,
Rollo)

The Solicitor-General likewise filed his brief, basically reiterating ating the lower court's findings.

However, before this Court had the chance to act on appeal, counsel de oficio Atty. Enrique Chan died.
Thereafter, this court appointed a new counsel de oficio, Atty. Katz Tierra and pursuant thereto, the Deputy Clerk
of Court, in behalf of the Clerk of Court, required the new counsel to file her appellant's brief. The latter
complied and, in her brief, raised the following assignment of errors:

I
 THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE THE PACKAGE OF MARIJUANA
ALLEGEDLY SEIZED FROM DEFENDANT-APPELLANT AS IT WAS A PRODUCT OF AN
UNLAWFUL SEARCH WITHOUT A WARRANT.

II

THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE THE ALLEGED PACKAGE OF

MARIJUANA LEAVES AS THE LEAVES SUPPOSEDLY SEIZED FROM ACCUSED WHEN IT
WAS NEVER AUTHENTICATED.

III

THE LOWER COURT ERRED IN NOT RULING THAT THE PROSECUTION FAILED TO PROVE
THE GUILT OF DEFENDANT-APPELLANT. (At pp. 92-93, Rollo)

It is contended that the marijuana allegedly seized from the accused was a product of an unlawful search without
a warrant and is therefore inadmissible in evidence.

This contention is devoid of merit.

One of the exceptions to the general rule requiring a search warrant is a search incident to a lawful arrest. Thus,
Section 12 of Rule 126 of the 1985 Rules on Criminal Procedure provides:

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

Meanwhile, Rule 113, Sec. 5(a) provides:

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

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

Accused was caught in flagrante, since he was carrying marijuana at the time of his arrest. This case therefore
falls squarely within the exception. The warrantless search was incident to a lawful arrest and is consequently
valid.

In the case of People v. Claudia, 160 SCRA 646, [1988] this Court, confronted with the same issue, held that:

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

We are not unmindful of the decision of this Court in People v. Amininudin, 163 SCRA 402 [1988]. In that case
the PC officers had earlier received a tip from an informer that accused-appellant. was on board a vessel bound
for Iloilo City and was carrying marijuana. Acting on this tip, they waited for him one evening, approached him
as he descended from the gangplank, detained him and inspected the bag he was carrying. Said bag contained
marijuana leaves. The Court held that the marijuana could not be admitted in evidence since it was seized
illegally. The records show, however, that there were certain facts, not sing in the case before us, which led the
Court to declare the seizure as invalid. As stated therein:

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

In contrast, the case before us presented urgency. Although the trial court's decision did not mention it, the
transcript of stenographic notes reveals that there was an informer who pointed to the accused-appellant as
carrying marijuana. (TSN, pp. 52-53) Faced with such on-the-spot information, the police officers had to act
quickly. There was not enough time to secure a search warrant. We cannot therefore apply the ruling in
Aminnudin to the case at bar. To require search warrants during on-the-spot apprehensions of drug pushers,
illegal possessors of firearms, jueteng collectors, smugglers of contraband goods, robbers, etc. would make it
extremely difficult, if not impossible to contain the crimes with which these persons are associated.

Accused-appellant likewise asserts that the package of marijuana leaves supposedly seized from him was never
authenticated and therefore should not have been admitted as evidence. He capitalizes on the fact that the
marijuana package brought by patrolman Roberto Quevedo to the PC Crime Laboratory for examination did not
contain a tag bearing the name of the accused. We rule, however, that since Patrolman Quevedo testified that he
gave the marijuana package together with a letter-request for examination, and the forensic chemist Marilene
Salangad likewise testified that she received the marijuana together with the letter-request and said letter-request
bore the name of the accused, then the requirements of proper authentication of evidence were sufficiently
complied with. The marijuana package examined by the forensic checklist was satisfactorily identified as the one
seized from accused.

Even assuming arguendo that the marijuana sent to the PC Crime Laboratory was not properly authenticated,
still, we cannot discount the separate field test conducted by witness Roberto Quevedo which yielded positive
results for marijuana.

Lastly, the appellant claims that the evidence upon which he was convicted was insufficient and doubtful and
that the prosecution failed to prove his guilt.

In attacking the sufficiency of evidence, the appellant avers that the informer should have been presented before
the lower court. We discard this argument as a futile attempt to revive an already settled issue. This Court has
ruled in several cases that non-presentation of the informer, where his testimony would be merely corroborative
or cumulative, is not fatal to the prosecution's case. (People v. Asio, G.R. No. 84960, September 1, 1989; (People
v. Viola, G.R. No. 64262, March 16, 1989; People v. Capulong, 160 SCRA 533 [1988]; People v. Cerelegia, 147
SCRA 538).

As to doubtfulness of evidence, well-settled is the rule that findings of the trial court on the issue of credibility of
witnesses and their testimonies are entitled to great respect and accorded the highest consideration by the
appellate court. Since credibility is a matter that is peculiarly within the province of the trial judge, who had first
hand opportunity to watch and observe the demeanor and behavior of witnesses both for the prosecution and the
defense at the time of their testimony (People v. Tejada, G.R. No. 81520, February 21, 1989; People v. Turla, 167
SCRA 278), we find no reason to disturb the following findings:
 The testimony of prosecution witnesses Patrolmen Silverio Quevedo and Romeo Punzalan are positive
and sufficiently clean to show the commission by the accused of the offense herein chatted. These
prosecution witnesses have no motive to fabricate the facts and to foist a very serious offense against the
accused. The knowledge on what these witnesses testified to were (sic) acquired by them in the official
performance of their duties and then, (sic) being no showing that they are prejudiced against the accused,
their testimonies deserve full credit.

The testimonies of the afore-mentioned petitioner that what they found in the possession of the accused
were marijuana leaves were corroborated by the examination findings conducted by Pat. October to
Salangad of the PCCL, with station at camp Olivas, San Fernando, Pampanga (Exhibits C and C-1).
(Rollo, p. 11)

Moreover, if there is truth in the testimony of the accused to the effect that Pat. Punzalan got all the
money from his wallet when he was accosted at the Victory Liner Terminal and was told just to keep
quiet otherwise he will be "salvaged" why will Pat. Punzalan still bring the accused to the municipal
Building for interrogation and/or verification? Would not Pat. Punzalan be exposing his identity to the
accused? This is unnatural. And this is also true on the testimony to the accused that Pat. Silverio
Quevedo got his fifty-peso bill arid never returned the same to him. If the policemen really got any
money from the accused and that the marijuana leaves do not belong to the accused, why will the two
policemen still produce in Court as evidence that expensive-looking traveling red bag (Exhibit G) taken
from the accused and which contained the marijuana in question if the instant case is a mere fabrication?

As already stated, all the evidence, oral and documentary, presented by the prosecution in this case were
all based on personal knowledge acquired by the prosecution witnesses in the regular performance of
their official duties and there is nothing in their testimonies to show that they are bias ( sic) or that they
have any prejudice against the herein accused. Between the testimonies of these prosecution witnesses
and that of the uncorroborated and self-serving testimony of the accused, the former should prevail.
(Rollo, p. 13)

Likewise, the appellant chose to limit his defense to his own testimony. He could have availed himself through
compulsory court processes of several witnesses to buttress his defense. Since not one other witness was
presented nor was any justification for the non-appearance given, the inadequacy of his lone and uncorroborated
testimony remains. It cannot prevail vis-a-vis the positive testimonies given by the prosecution witnesses.

Moreover, the appellant's having jumped bail is akin to flight which, as correctly observed by the lower court, is
an added circumstance tending to establish his guilt.

We take exception, however, to the trial court's finding that:

The dried marijuana leaves found in the possession of the accused weighs one (1) kilo, more or less. The
intent to transport the same is clear from the testimony of Pat. Silverio Quevedo who declared, among
other things, that when he confronted the accused that night, the latter told him that he (accused) is
bringing the marijuana leaves to Olongapo City. Moreover, considering the quantity of the marijuana
leaves found in the possession of the accused and the place he was arrested which is at San Fernando,
Pampanga, a place where the accused is not residing, it can be said that the intent to transport the
marijuana leaves has been clearly established. (Rollo, pp. 13-14)

The alleged extrajudicial confession of the accused which, on the other hand, he categorically denied in court,
that he is transporting the marijuana leaves to Olongapo City cannot be relied upon. Even assuming it to be true,
the extrajudicial confession cannot be admitted because it does not appear in the records that the accused, during
custodial investigation, was apprised of his rights to remain silent and to counsel and to be informed of such
rights. In People v. Duero 104 SCRA 379 [1981], the Court pronounced that "inasmuch as the prosecution failed
to prove that before Duero made his alleged oral confession he was informed of his rights to remain silent and to
have counsel and because there is no proof that he knowingly and intelligently waived those rights, his
confession is inadmissible in evidence. This ruling was reiterated in People v. Tolentino, 145 SCRA 597 [1986],
where the Court added that:

In effect, the Court not only abrogated the rule on presumption of regularity of official acts relative to
admissibility of statements taken during in-custody interrogation but likewise dispelled any doubt as to
the full adoption of the Miranda doctrine in this jurisdiction. It is now incumbent upon the prosecution
to prove during a trial that prior to questioning, the confessant was warned of his constitutionally
protected rights.

The trial judge likewise found the marijuana to weigh one kilo, more or less, and from this finding extracted a
clear intent to transport the marijuana leaves. It may be pointed out, however, that although the information
stated the weight to be approximately one kilo, the forensic chemist who examined the marijuana leaves testified
that the marijuana weighed only 600 grams Such amount is not a considerable quantity as to conclusively confer
upon the accused an intent to transport the marijuana leaves.

Nor can it be said that the intent to transport is clearly established from the fact that the accused was arrested at
San Fernando, Pampanga, a place which is not his residence. Conviction of a crime with an extremely severe
penalty must be based on evidence which is clearer and more convincing than the inferences in this case.

What was therefore proved beyond reasonable doubt is not his intent to transport the marijuana leaves but his
actual session.

The offense committed by the appellant is possession of marijuana under Section 8 of Republic Act No. 6425
(Dangerous Drugs Act of 1972 as amended).

WHEREFORE, the judgment of conviction by the trial court is hereby AFFIRMED but MODIFIED. The
appellant is sentenced to suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve
(12) years and fine of Six Thousand (P6,000.00) Pesos.

SO ORDERED.

xxxvii
xxxviiiG.R. No. L-61388 April 20, 1983

IN THE ISSUANCE OF THE WRIT OF HABEAS CORPUS FOR DR. AURORA PARONG,
NORBERTO PORTUGUESE, SABINO PADILLA, FRANCIS DIVINAGRACIA, IMELDA DE LOS
SANTOS, BENJAMIN PINEDA, ZENAIDA MALLARI, MARIANO SORIANO, TITO TANGUILIG,
LETTY BALLOGAN, BIENVENIDA GARCIA, EUFRONIO ORTIZ. JR., JUANITO GRANADA and
TOM VASQUEZ. JOSEFINA GARCIA-PADILLA, petitioner,
vs.
MINISTER JUAN PONCE ENRILE, GEN, FABIAN C. VER, GEN. FIDEL V. RAMOS, and FIDEL V.
RAMOS, and LT. COL. MIGUEL CORONEL, respondents.

Lorenzo M. Tanada, Jose W. Diokno, Joker P. Arroyo, Efren M Mercado and Alexander Padilla for petitioner.

The Solicitor General for respondents.

DE CASTRO, J.:

Petition for a writ of habeas corpus and mandamus seeking the following relief:

WHEREFORE, petitioners pray this Honorable Court:

1. To immediately issue a writ of habeas corpus directing respondents to appear and produce the
bodies of Dr. AURORA PARONG, NORBERTO PORTUGUESE, SABINO PADILLA,
FRANCIS DIVINAGRACIA, IMELDA DE LOS SANTOS, BENJAMIN PINEDA, ZENAIDA
MALLARI, MARIANO SORIANO, TITO TANGUILIG, LETTY BALLOGAN,
BIENVENIDA GARCIA, EUFRONIO ORTIZ, JR., JUANITO GRANADA and TOM
VASQUEZ, forthwith before this Honorable Court and to make due return of the writ therewith;

2. To issue, in addition or in the alternative to the writ of habeas corpus, a writ of mandamus
compelling the respondents to disclose the petitioners' present place of detention and to order the
respondents to allow counsel and relatives to visit and confer with the petitioners;

3. Pending the determination of the legality of their continued detention, to forthwith release the
detainees on bail upon such terms and conditions as the Court may fix, and after hearing, to
order petitioners' immediate release; and

4. To grant petitioners such other and further relief as may be deemed just and equitable in the
premises.

The records show that nine (9) of the fourteen (14) detainees herein were arrested on July 6, 1982 at about 1:45
p.m. when three (3) teams of the PC/INP of Bayombong, Nueva Viscaya led by Lt. Col. Coronel, lst Lt. de
Guzman and lst Lt. Baria, after securing a Search Warrant No. S-82 issued by Judge Sofronio Sayo of the Court
of First Instance of Nueva Viscaya conducted a raid at the residence of Dra. Aurora Parong. Apprehended during
the said raid were Dra. Aurora Parong, Benjamin Pineda, Sabino Padilla, Francisco Divinagracia, Zenaida
Mallari, Letty Ballogan, Norberto Portuguese, and Mariano Soriano who were then having a conference in the
dining room of Dra. Parong's residence which had been doing on since 10:00 a.m. of that same day.

The other four (4) detainees herein, namely: Imelda de los Santos, Eufronio Ortiz, Jr., Juanita Granada, and
Bienvenida Garcia, were arrested on the following day, July 7, 1982 by the same PC teams.

On July 15, 1982, Tom Vasquez was arrested, and his Volkswagen car, bearing Plate No. DAP 347, was seized
by the PC authorities.

The herein fourteen (14) detainees (hereafter referred to sometimes as petitioners) were all detained at the
PC/INP Command Headquarters, Bayombong, Nueva Vizcaya from July 6, 1982 until their transfer on the
morning of August 10, 1982 to an undisclosed place reportedly to Camp Crame, Quezon City, to Echague,
Isabela, and to Tuguegarao, Cagayan.

Hence, this petition for the writ of habeas corpus and mandamus filed by Josefina Garcia-Padilla, mother of
detained petitioner Sabino G. Padilla, Jr. on August 13, 1982. The mandamus aspect of the instant petition has,
however, become moot and academic, and whereabouts of petitioners having already become known to
petitioner Josefina Garcia-Padilla.

It is alleged in the petition that the arrest of petitioners was patently unlawful and illegal since it was effected
without any warrant of arrest; that the PC/INP raiding team which made the arrest were only armed with a search
warrant (No. 3-82) issued by Judge Sofronio G. Sayo of the Court of First Instance of Nueva Viscaya, and
nowhere in said warrant was authority given to make arrests, much less detention; that the search warrant which
authorized respondents to seize "subversive documents, firearms of assorted calibers, medicine and other
subversive paraphernalia" in the house and clinic of Dra. Aurora Parong was a roving and general warrant and is,
therefore, illegal per se because it does not state specifically the things that are to be seized (Stonehill vs.
Diokno, 20 SCRA 383); that no criminal charges have as of yet been filed against any of the detainees; that the
fourteen (14) detainees were initially held at the PC/INP Command in Bayombong, Nueva Viscaya from July 6
up to August 10, 1982, but were subsequently transferred by helicopter in the morning of August 10, 1982 to a
place or safehouse known only to respondents; that there is no judgment, decree, decision or order from a court
of law which would validate the continued detention of the petitioner; that while it is true that a purported
telegram stating the issuance of a Presidential Commitment Order (PCO) was shown to the detainees on or about
July 11 and 12, 1982, but counsel and the detainees have not yet been given a copy of such PCO nor notified of
its contents, raising a doubt whether such commitment order has in fact been issued.

It is further alleged that respondents are denying the detainees their constitutional right to counsel, averring that
the detainees were allowed regular visits by counsel and relatives during their period of detention from July 6 to
August 10, 1982 at the PC/INP Command in Bayombong, Nueva Viscaya; however, when a certain Major
Cristobal and Lt. Marcos (alleged to be from the Camp Crame Intelligence Units) took full control of the
investigation, counsels were allowed to visit only on weekends; that when the detainees were transferred on
August 10, 1982 to a place known only to respondents, the detainees' counsels and relatives were not notified,
raising the apprehension that petitioners' constitutional rights to silence, to counsel and against self-
incrimination are being violated; that counsels have tried to locate if the detainees were taken to Camp Crame or
Camp Bago Bantay but to no avail; that Major Forondo of the PC Command in Nueva Viscaya informed Mrs.
Josefina Padilla that the detainees were transferred to Tuguegarao, Cagayan, others to Echague, Isabela; that
there seems to be a deliberate and concerted effort by respondents to conceal from counsel and relatives the
detainees' place of detention, raising the apprehension that respondents are using force, violence, threat,
intimidation and other means which vitiate free will to obtain confession and statements from the detainees in
violation of their constitutional rights.

In the resolution of this Court en banc dated August 17, 1982, the writ of habeas corpus was issued and
respondents were required to make a return of the writ. Hearing on the petition was set on August 26, 1982.

In the return to the writ filed on August 23, 1982. respondents, through the Solicitor General, alleged, to wit:

I. AS TO HABEAS CORPUS

1. The detainees mentioned in the petition, with the exception of Tom Vasquez who was
temporarily released on July 17, 1982, after his arrest on July 15, 1982, are all being detained by
virtue of a Presidential Commitment Order (PCO) issued on July 12, 1982, pursuant to LOI No.
1211 dated March 9, 1982, in relation to Presidential Proclamation No. 2045 dated January 17,
1981. The said PCO was issued by President Ferdinand E. Marcos for violation of P.D. No.
885. ...

2. The corresponding charges against the said detainees have been filed in court and before the
Acting Provincial Fiscal of Nueva Viscaya where they are pleading. A warrant of arrest against
detainee Dra. Aurora Parong was issued on August 4, 1982, by the Municipal Court of
Bayombong, for illegal possession of firearm and ammunition. ...

II. AFFIRMATIVE DEFENSE ON HABEAS CORPUS

 3. The persons named in the above-mentioned Presidential Commitment Order were arrested
and are being detained for offenses with respect to which under Proclamation No. 2045, the
privilege of the writ of habeas corpus continues to be suspended, thus:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President/Prime Minister

of the Philippines, by virtue of the powers vested in me by the Constitution, do
hereby revoke Proclamation No. 1081 (Proclaiming a state of Martial Law in
the Philippines) and Proclamation No. 1104 (Declaring the Continuation of
Martial Law) and proclaim the termination of the state of martial law
throughout the Philippines; Provided, that the call to the Armed Forces of the
Philippines to prevent or suppress lawless violence, insurrection, rebellion and
subversion shall continue to be in force and effect; and Provided that in the two
autonomous regions in Mindanao, upon the request of the residents therein, the
suspension of the privilege of the writ of habeas corpus shag continue; and in
all other places the suspension of the privilege of the writ shall also continue
with respect to persons at present detained as well as others who may hereafter
be similarly detained for the crimes of insurrection or rebellion, subversion,
conspiracy or proposals to commit such crimes, and for all other crimes and
offenses committed by them in furtherance or on the occasion thereof, or
incident thereto, or in connection therewith. (Emphasis supplied)

The privilege of the writ of habeas corpus is unavailing as to them. Courts cannot inquire into
the validity and cause of their arrest and detention.

4. The power of the President in an emergency, such as that which necessitated the continued
suspension of the privilege of the writ of habeas corpus, to order the detention of persons
believed engaged in crimes related to national security is recognized. (Aquino vs. Enrile, 59
SCRA 83; Luneta, et al. vs. Special Military Commission, No. 1, et al., 102 SCRA 56).

5. In the instant petition, petitioner Josefina Garcia-Padilla does not appear to have been
authorized by the thirteen (13) other detainees to represent them in the case at bar."

Accordingly, the petition was duly heard on August 26, 1982. After hearing, the Court issued the following
resolution, to wit:

G.R. No. 61388 (In the Matter of the Petition for the Insurance of the Writ of Habeas Corpus of
Dr. Aurora Parong, Norberto Portuguese, Sabino Padilla, Francis Divinagracia, Imelda de los
Santos, Benjamin Pineda, Zenaida Mallari, Mariano Soriano, Tito Tanguilig, Letty Ballogan,
Bienvenida Garcia, Eufronio Ortiz, Jr., Juanito Granada and Tom Vasquez; Josefina Garcia-
Padilla vs. Minister Juan Ponce Enrile, Gen. Fabian C. Ver, Gen. Fidel V. Ramos and Lt. Col.
Miguel Coronel.)- The return of the writ of habeas corpus and answer to the prayer for
mandamus filed by the Solicitor General for respondents in compliance with the resolution of
August 17, 1982 is NOTED.

At the hearing of this case this morning, former Senator Jose W. Diokno, Attorneys Alexander
A. Padilla and Efren H. Mercado appeared for petitioner. Solicitor General Estelito P. Mendoza
and Assistant Solicitor General Ramon A. Barcelona, appeared for the respondents. All of the
detainees, except Tom Vasquez, who was temporarily released on July 17, 1982, were present in
Court; Dr. Aurora Parong, Norberto Portuguese, Sabino Padilla, Francis Divinagracia, Imelda de
los Santos, Benjamin Pineda, Zenaida Mallari, Mariano Soriano, Tito Tanguilig, Letty Ballogan,
Bienvenida Garcia, Eufronio Ortiz, Jr. and Juanito Granada. Attorney Alexander A. Padilla
 argued for the petitioner. Solicitor General Mendoza argued for the respondents. Former Senator
Diokno argued in the rebuttal. The Court Resolved to require the Solicitor General to SUBMIT
within five (5) days from date the documents relevant to the issuance of the Presidential
Commitment Order. Thereafter, the case shall be considered SUBMITTED for resolution.

As required, the Solicitor General submitted the documents relevant to the issuance of the Presidential
Commitment Order on August 27, 1982, after which the case was submitted for resolution.

The fundamental issue here, as in all petitioner for the writ of habeas corpus, is whether or not petitioners'
detention is legal. We have carefully gone over the claims of the parties in their respective pleadings as well as in
the oral argument during the hearing on August 26, 1982, and We find that petitioners have not been illegally
deprived of their constitutional right to liberty, neither in the manner of their arrest, nor by their continued
detention, and that the circumstances attendant in the herein case do not warrant their release on a writ of habeas
corpus.

1. At the time of the arrest of the nine (9) of the fourteen (14) detainees herein on July 6, 1982, records reveal
that they were then having conference in the dining room of Dra. Parong's residence from 10:00 a.m. of that
same day. Prior thereto, all the fourteen (14) detainees were under surveillance as they were then Identified as
members of the Communist Party of the Philippines (CPP) engaging in subversive activities and using the house
of detainee Dra. Aurora Parong in Bayombong, Nueva Viscaya, as their headquarters. Caught in flagrante
delicto, the nine (9) detainees mentioned scampered towards different directions leaving in top of their
conference table numerous subversive documents, periodicals, pamphlets, books, correspondence, stationaries,
and other papers, including a plan on how they would infiltrate the youth and student sector (code-named
YORK). Also found were one (1) .38 cal. revolver with eight (8) live bullets, nineteen (19) rounds of
ammunition for M16 armalite, eighteen thousand six hundred fifty pesos (P18,650.00) cash believed to be
CPP/NPA funds, assorted medicine packed and ready for distribution, as sizeable quantity of printing
paraphernalia, which were then seized. There is no doubt that circumstances attendant in the arrest of the herein
detainees fall under a situation where arrest is lawful even without a judicial warrant as specifically provided for
under Section 6(a), Rule 113 of the Rules of Court and allowed under existing jurisprudence on the matter. As
provided therein, a peace officer or a private person may, without a warrant, arrest a person when the person to
be arrested has committed or actually committing, or is about to commit an offense in his presence.

From the facts as above narrated, the claim of the petitioners that they were initially arrested illegally is,
therefore, without basis in law and in fact. The crimes of insurrection or rebellion, subversion, conspiracy or
proposal to commit such crimes, and other crimes and offenses committed in the furtherance on the occasion
thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the
nature of continuing offenses which set them apart from the common offenses, aside from their essentially
involving a massive conspiracy of nationwide magnitude. Clearly then, the arrest of the herein detainees was
well within the bounds of the law and existing jurisprudence in our jurisdiction.

2. The arrest of persons involved in the rebellion whether as its fighting armed elements, or for committing non-
violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed
conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory
offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which requires
the determination by a judge of the existence of probable cause before the issuance of a judicial warrant of arrest
and the granting of bail if the offense is bailable. Obviously, the absence of a judicial warrant is no legal
impediment to arresting or capturing persons committing overt acts of violence against government forces, or
any other milder acts but equally in pursuance of the rebellious movement. The arrest or capture is thus impelled
by the exigencies of the situation that involves the very survival of society and its government and duly
constituted authorities. If killing and other acts of violence against the rebels find justification in the exigencies
of armed hostilities which is of the essence of waging a rebellion or insurrection, most assuredly so in case of
invasion, merely seizing their persons and detaining them while any of these contingencies continues cannot be
less justified. In the language of Moyer vs. Peabody, 1 cited with approval in Aquino, et al. vs. Ponce Enrile, 2
the President " shall make the ordinary use of the soldiers to that end that he may kill persons who resist, and, of
course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way
of restoring peace. Such arrests are not necessarily for punishment, but are by way of precaution, to prevent the
exercise of hostile power."

Thus characterized, the arrest and detention of persons ordered by the President through the issuance of
Presidential Commitment Order PCO is merely preventive. "When it comes to a decision by the head of the State
upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of
the moment. Public danger warrants the substitution of executive process for judicial process." 3 What should be
underscored is that if the greater violation against life itself such as killing, will not be the subject of judicial
inquiry, as it cannot be raised as transgressing against the due process clause that protects life, liberty and
property, lesser violations against liberty, such as arrest and detention, may not be insisted upon as reviewable by
the courts.

3. Transcendentally important, therefore, is the question of whether the issuance of a Presidential Commitment
Order (PCO) has provided the legal basis of the detention of herein detainees following their arrest for
Proclamation No. 2045 covered offenses. This question has to be set at rest promptly and decisively, if We are to
break a seemingly continuous flow of petitions for habeas corpus, as what had been seen lately of such
petitioners being filed in this Court one after the other.

The function of the PCO is to validate, on constitutional ground, the detention of a person for any of the offenses
covered by Proclamation No. 2045 which continues in force the suspension of the privilege of the writ of habeas
corpus, if the arrest has been made initially without any warrant, its legal effect is to render the writ unavailing as
a means of judicially inquiring into the legality of the detention in view of the suspension of the privilege of the
writ. The grant of the power to suspend the said privilege provides the basis for continuing with perfect legality
the detention as long as the invasion or rebellion has not been repelled or quelled, and the need therefor in the
interest of public safety continues.

The significance of the conferment of this power, constitutionally upon the President as Commander-in-Chief, is
that the exercise thereof is not subject to judicial inquiry, with a view to determining its legality in the light of the
bill of rights guarantee to individual freedom. This must be so because the suspension of the privilege is a
military measure the necessity of which the President alone may determine as an incident of his grave
responsibility as the Commander-in-Chief of the Armed Forces, of protecting not only public safety but the very
life of the State, the government and duly constituted authorities. This should be clear beyond doubt in the case
of "invasion," along which "rebellion" or "insurrection" is mentioned by the Constitution, which contingency
does not present a legal question on whether there is a violation of the right to personal liberty when any member
of the invading force is captured and detained.

The presidential responsibility is one attended with all urgency when so grave a peril to the life of the Nation
besets the country in times of the aforementioned contingencies. In the discharge of this awesome and sacred
responsibility, the President should be free from interference. The existence of warlike conditions as are created
by invasion, rebellion or insurrection, the direst of all emergencies that can possibly confront a nation, argues,
beyond dispute, against subjecting his actions in this regard to judicial inquiry or interference from whatever
source. If freedom from judicial review is conceded in the exercise of his peacetime powers as that of
appointment and of granting pardon, denominated as political powers of the President, it should incontestably be
more so with his wartime power, as it were, to adopt any measure in dealing with situations calling for military
action as in case of invasion, rebellion or insurrection.

The suspension of the privilege of the writ of habeas corpus is one such measure. To be effective, the occasion
for its application on specific individuals should be left to the exclusive and sound judgment of the President, at
least while the exigencies of invasion, rebellion or insurrection persist, and the public safety requires it, a matter,
likewise, which should be left for the sole determination of the President as Commander-in-Chief of the Nation's
armed forces. The need for a unified command in such contingencies is imperative-even axiomatic-as a basic
military concept in the art of warfare.

4. From the clear language of the Lansang case, 4 "the function of Court is merely to check — not to supplant —
the Executive, or to ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction, not
to exercise the power vested in him or to determine the wisdom of his act. " If, however, the constitutional right
to bail is granted to the herein petitioners by the court, through the procedure laid down under Rule 114 of the
Rules of court, what inevitably results is the supplanting of the decision of the President to detain pursuant to
Proclamation No. 2045, of persons who come under its coverage.

The specific mention in the Constitution of rebellion and insurrection along with invasion and imminent danger
thereof, shows that the terms "rebellion and insurrection" are used therein in the sense of a state or condition of
the Nation, not in the concept of a statutory offense. What, therefore, should determine the legality of imposing
what is commonly referred to as "preventive detention" resulting from the suspension of the privilege of habeas
corpus, is the necessity of its adoption as a measure to suppress or quell the rebellion, or beat off an invasion.
The necessity for such measure as a means of defense for national survival quite clearly transcends in
importance and urgency the claim of those detained to the right to bail to obtain their freedom. To hold otherwise
would defeat the purpose of the constitutional grant of the power to suspend the privilege of the writ of habeas
corpus on the occasions expressly mentioned in the charter. For what indeed could the purpose be of suspending
the privilege of the writ of habeas corpus other than to restrict, at least for the duration of the emergency of
invasion or rebellion, the right to personal liberty, dictated as it is, in the greater interest of public safety and
national security.

So it is that Proclamation No. 2045 mentions not only rebellion or insurrection as coming within the suspension
of the privilege of the writ of habeas corpus, but also other offenses, including subversion which is not
mentioned in the Constitution, committed by reason or on the occasion of the rebellion, or in connection
therewith, or in the furtherance thereof. There need be no alarm over what libertarian jurists fear as violation of
the constitutional right to personal liberty when the President decrees the suspension of the privilege of habeas
corpus. Only those who give cause for it will be subject to restriction of their liberty, as the necessity therefor
arises in the interest of national defense and survival. The constitutional guarantee of individual freedom is intact
in all its plenitude and sanctity, save only as the Constitution has envisioned the need for its limitation, and only
to a few, in relation to the entire population, as the Constitution itself permits in case of overwhelming and
imperious necessity.

5. Worthy of profound notice and keen appreciation is the fact that the authority to suspend the privilege of the
writ of habeas corpus has been deliberately vested on the President as the Commander-in-Chief of the armed
forces, together with the related power to call out the armed forces to suppress lawless violence and impose
martial law. 5 The choice could not have been more wise and sound, for no other official may, with equal
capability and fitness, be entrusted with the grave responsibility that goes with the grant of the authority. The
legislature was considered in the alternative upon which to lodge the power, or to share in its exercise, but the
distilled wisdom of the Constitutional Convention finally made its choice for the President alone.

As previously noted, "invasion" which is not a statutorily-defined offense and "imminent danger thereof" as
mentioned in the Constitution indicate that "rebellion and insurrection" are also mentioned therein not in their
concept as statutorily-defined public crimes, but as a state or condition of extreme emergency resulting from the
existence of the aforesaid events. Now, if captured enemies from the invading force may not be charged with any
statutory offense that would provide the occasion to demand the right to bail, it is obvious that persons engaged
in rebellion or insurrection may not claim the right to be released on bail when similarly captured or arrested
during the continuance of the aforesaid contingency. They may not even claim the right to be charged
immediately in court, as they may rightfully do so, were they being charged with an ordinary or common
offense. This is so because according to legal writers or publicists, the suspension of the privilege of the writ of
habeas corpus "has the sole effect of allowing the executive to defer the trials of persons charged with certain
offenses during the period of emergency." 6 This clearly means denial of the right to be released on bail on being
charged in court with bailable offenses.

The suspension of the privilege of the writ of habeas corpus must, indeed, carry with it the suspension of the
right to bail, if the government's campaign to suppress the rebellion is to be enhanced and rendered effective. If
the right to bail may be demanded during the continuance of the rebellion, and those arrested, captured and
detained in the course thereof will be released, they would, without the least doubt, rejoin their comrades in the
field thereby jeopardizing the success of government efforts to bring to an end the invasion, rebellion or
insurrection.

Realistically, a person engaged in the rebellion does not, upon being arrested or captured, cease to be as
committed to the cause of the movement. Through a grand conspiracy, as is of the essence of how rebellion is
committed, involving a great mass of confederates bound together by a common goal, he remains in a state of
continued participation in the criminal act or design. His heart still beats with the same emotion for the success
of the movement of which he continues to be an ardent adherent and ally. It is simple logic then to hold that there
should be no legal compulsion for a captured rebel to be charged in court, only to be released on bail, while he
is, realistically and legally, still as much as part and parcel of the movement, continuing as it is, as those still
engaged in carrying on actively to attain their goal of overthrowing the established regime. Hence, it is easy to
perceive how impressed with absolute verity is the opinion expressed by two acknowledged authorities on
Constitutional law in our country, 7 which We quote:

... If the return to the writ shows that the person in custody was apprehended and detained in
areas where the privileges of the writ have been suspended or for the crimes mentioned in the
executive proclamation, the court will suspend further proceedings in the action.

Impeccable as it is, the opinion could not but find a resonant echo as it did in the recent case of Buscayno vs.
Military Commission; 8 decided after Proclamation No. 2045 was issued, which in terms clear and categorical,
held that the constitutional right to bail is unavailing when the privilege of the writ of habeas corpus is
suspended with respect to certain crimes as enumerated or described in the abovementioned Proclamation.

It is, likewise, all too well-known that when the rebel forces capture government troopers or kidnap private
individuals, they do not accord to them any of the rights now being demanded by the herein petitioners,
particularly to be set at liberty upon the filing of bail. As a matter of common knowledge, captives of the rebels
or insurgents are not only not given the right to be released, but also denied trial of any kind. In some instances,
they may even be liquidated unceremoniously. What is then sought by the suspension of the privilege of the writ
of habeas corpus is, among others, to put the government forces on equal fighting terms with the rebels, by
authorizing the detention of their own rebel or dissident captives as the rebellion goes on. In this way, the
advantage the rebellion forces have over those of the government, as when they resort to guerilla tactics with
sophisticated weapons, is, at least, minimized, thereby enhancing the latter's chances of beating their enemy. It
would, therefore, seem to be ignoring realities in the name of misplaced magnanimity and compassion, and for
the sake of humanity, to grant the demand for respect of rights supposedly guaranteed by the Constitution by
those who themselves seek to destroy that very same instrument, trampling over it already as they are still
waging war against the government. This stark actuality gives added force and substance to the rationale of the
suspension of the privilege of the writ of habeas corpus in case of invasion, insurrection, rebellion, or imminent
danger thereof, when public safety requires it.

6. Invoking the Lansang case, 9 however, petitioners would ask this Court to review the issuance of the PCO
against them, intimating that arbitrariness attended its issuance because, relying on the evidence supposedly
available in the hands of the military, they claim they are not guilty of rebellion. They also contend that the
provisions of LOI No. 1211 have not been complied with.

The Lansang case went no further than to pronounce the suspension of the writ of the privilege of habeas corpus
on August 21, 1971, valid and constitutional, on a finding that there was no arbitrariness attendant to the
suspension. It never intended to suggest that for every individual case of arrest and detention, the writ of habeas
corpus is available, even after the suspension of this privilege, to question the legality of the arrest and detention
on ground of arbitrariness. When a person is charged in court for an ordinary offense, the law does not authorize
the filing of a petition for habeas corpus based on the ground that there is absolutely no evidence to hold him for
trial, which, in effect, constitutes an allegation of arbitrariness in the filing of the case against him. The law has
afforded him adequate safeguards against arbitrariness, such as the requirement of determining the existence of a
probable cause by the judge before the issuance of the warrant of arrest. The finding of such probable cause may
not be immediately brought for review by this Court in a habeas corpus proceeding, on the claim of arbitrariness.
The matter is to be decided on the basis of the evidence, and this Court is not the proper forum for the review
sought, not being a trier of facts. If such a procedure were allowed, it would be easy to delay and obstruct the
prosecution of an offense by a resort to a petition for habeas corpus based on arbitrariness, which most accuse, if
not all, would be most inclined, specially when they are out on bail. The petition now before Us is exactly one of
this kind. If granted, the effect is to transfer the jurisdiction of the trial courts in criminal cases to this Court,
which is simply inconceivable. Moreover, arbitrariness, while so easy to allege, is hard to prove, in the face of
the formidable obstacle built up by the presumption of regularity in the performance of official duty.
Unexhilaratingly, this is the revealing experience of this Court in the Lansang case, where it doubtlessly realized
how hardly possible it is to adduce evidence or proof upon which to show the President having acted with
arbitrariness.

7. The last question relates to the legality of the Presidential Commitment Order (PCO) issued by the President
on July 12, 1982, tested by the conformity of its issuance to the procedure laid down under LOI 1211, petitioners
insisting that the LOI limits the authority of the President to cause the arrest and detention of persons engaged in
or charged with, the crimes mentioned in Proclamation No. 2045. They contend that the procedure prescribed in
the LOI not having been observed, the PCO issued thereunder did not validate the initial illegal arrest of the
herein petitioners as wen as their continued detention.

It must be noted that LOI No. 1211, which provides the guidelines in the arrest and detention of persons engaged
in, or charged with, the crimes mentioned in Proclamation No. 2045, charged with, the crimes mentioned
contemplates of three situations when an arrest can be made, to wit:

1. The arrest and detention effected by virtue of a warrant issued by a judge;

2. The arrest and detention effected by a military commander or the head of a law enforcement
agency after it is determined that the person or persons to be arrested would probably escape or
commit further acts which would endanger public order and safety. After the arrest, however, the
case shall be immediately referred to the city or provincial fiscal or to the municipal, city,
circuit, or district judge for preliminary examination or investigation who, if the evidence
warrants, shall file the corresponding charges and, thereafter, we a warrant of arrest;

3. The military commander or the head of the law enforcement agency may apply to the
President thru the Minister of National Defense, for a Presidential Commitment Order under the
following circumstances:

(a) When resort to judicial process is not possible or expedient without

endangering public order and safety; or
 (b) When the release on bail of the person or persons already under arrest by
virtue of a judicial warrant would endanger said public order and safety.

Petitioners appear to place entire reliance on paragraphs 1 and 2 of LOI No. 1211, ignoring paragraph 3 of LOI
No. 1211, which provides:

3. The above notwithstanding, the military commander or the head of the law enforcement
agency may apply to the President thru the Minister of National Defense, for a Presidential
Commitment Order covering the person or persons believed to be participants in the commission
of the crimes referred to in paragraph 1 under the following circumstances:

(a) When resort to judicial process is not possible or expedient without

endangering public order and safety; or

(b) When the release on bail of the person or persons already under arrest by
virtue of a judicial warrant would endanger said public order and safety.

The reliance of petitioners on paragraphs 1 and 2 of LOI 1211 as to the alleged necessity of judicial warrant
before a person may be arrested and detained is not well-founded. Neither is the contention that paragraph 3 of
LOI 1211 applies only when judicial process is not possible. This is a narrow and constricted interpretation of
LOI 1211 when viewed in its entirety. Even in instances when a resort to judicial process is possible, where, in
the judgment of the President, a resort thereto would not be expedient because it would endanger the public
order or safety, a PCO is justified. So, too, when release on bail in the ordinary judicial process will invite the
same danger.

By its very nature, and clearly by its language, LOI 1211 is a mere directive of the President as Commander-in-
Chief of the Armed Forces of the Philippines to his subordinates or implementing officers for the ultimate
objective of providing guidelines in the arrest and detention of the persons covered by Presidential Proclamation
No. 2045. The purpose is "to insure protection to individual liberties without sacrificing the requirements of
public order and safety and the effectiveness of the campaign against those seeking the forcible overthrow of the
government and duty constituted authorities. " LOI 1211 does not, in any manner, limit the authority of the
President to cause the arrest and detention of persons engaged in, or charged with the crimes or offenses
mentioned in said Proclamation in that he (President) would subject himself to the superior authority of the judge
who, under normal judicial processes in the prosecution of the common offenses, is the one authorized to issue a
judicial warrant after a preliminary investigation is conducted with a finding of probable cause. Those who
would read such an intention on the part of the President in issuing LOI 1211 seems to do so in their view that
LOI forms part of the law of the land under the 1976 amendment of the Constitution. 10 They would then
contend that a PCO issued not in compliance with the provisions of the LOI would be an illegality and of no
effect.

To form part of the law of the land, the decree, order or LOI must be issued by the President in the exercise of
his extraordinary power of legislation as contemplated in Section 6 of the 1976 amendments to the Constitution,
whenever in his judgment, there exists a grave emergency or a threat or imminence thereof, or whenever the
interim Batasan Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for
any reason that in his judgment requires immediate action. There can be no pretense, much less a showing, that
these conditions prompted the President to issue LOI 1211. Verily, not all LOI issued by the President should be
dignified into forming part of the law of the land.

In the event then that the judge believes no warrant shall issue, the President, under Presidential Proclamation
No. 2045 and Letter of Instruction No. 1211, is not bound by such finding, as explicitly provided in paragraph 2
of LOI 1211. That the President avails of the facilities of the judicial machinery, as is the clear intent of LOI
1211, to aid him in exercising his power to restrain personal liberty, as dictated by the necessities and exigencies
of the emergency, does not indicate any intention on his part to renounce or to allow even mere curtailment of
his power such that the judicial process will thereupon take its normal course, under which the detainees or
accused would then be entitled to demand their right of due process, particularly in relation to their personal
liberty. 11 The issuance of the PCO by the President necessarily constitutes a finding that the conditions he has
prescribed in LOI 1211 for the issuance of that PCO have been met, and intends that the detention would be
pursuant to the executive process incident to the government campaign against the rebels, subversives and
dissidents waging a rebellion or insurrection. The ruling in the Nava vs. Gatmaitan case, * as above intimated,
must have shown him that to prosecute the offense through the judicial process of forthwith instead of deferring
it, would neither be wise nor expedient if he were to deal effectively with the grave emergency at hand.

What has been said above shows the need of reexamining the Lansang case with a view to reverting to the ruling
of Barcelon vs. Baker, 5 Phil. 87, a 1905 decision, and Montenegro vs. Castaneda, 91 Phil. 882 (1952), that the
President's decision to suspend the privilege of the writ of habeas corpus is "final and conclusive upon the
courts, and all other persons." This well-settled ruling was diluted in the Lansang case which declared that the
"function of the Court is merely to check — not to supplant — the Executive, or ascertain merely whether he has
gone beyond the constitutional limits of his jurisdiction not to exercise the power vested in him or to determine
the wisdom of his act." Judicial interference was thus held as permissible, and the test as laid down therein is not
whether the President acted correctly but whether he acted arbitrarily. This would seem to be pure semanticism,
if We consider that with particular reference to the nature of the actions the President would take on the occasion
of the grave emergency he has to deal with, which, as clearly indicated in Section 9, Art. VII of the Constitution
partakes of military measures, the judiciary can, with becoming modesty, ill afford to assume the authority to
check or reverse or supplant the presidential actions. On these occasions, the President takes absolute command,
for the very life of the Nation and its government, which, incidentally, includes the courts, is in grave peril. In so
doing, the President is answerable only to his conscience, the people and to God. For their part, in giving him the
supreme mandate as their President, the people can only trust and pray that, giving him their own loyalty with
utmost patriotism, the President will not fail them.

In his separate opinion in the Lansang case, then Justice Fernando, now our learned Chief Justice, went along
with the proposition that the decision of the Executive in the exercise of his power to suspend the privilege of the
writ of habeas corpus is his alone, and in his own language, is "ordinarily beyond the ken of the Courts." This is
so, as the Founding Fathers must have felt that in the particular situations at hand, the Executive and the
Judiciary should maintain a mutually deferential attitude. This is the very essence of the doctrine of "political
question, " as determining the justiciability of a case. The wisdom of this concept remains well-recognized in
advanced constitutional systems. To erase it from our own system as seems to be what was done in the Lansang
case, may neither be proper nor prudent. A good example could be given in the exercise of the presidential power
of pardon which is beyond judicial review, specially under the new Constitution where the condition that it may
be granted only after final conviction has been done away with.

True, the Constitution is the law "equally in war and in peace," 12 as Chief Justice Fernando cited in his brilliant
separate opinion in the same Lansang case. Precisely, it is the Constitution that gives the President specific
"military power" in times of warlike conditions as exist on the occasion of invasion, insurrection or rebellion.
Both power and right are constitutionally granted, with the difference that the guarantee of the right to liberty is
for personal benefit, while the grant of the presidential power is for public safety. Which of the two enjoys
primacy over the other is all too obvious. For the power is intended as a limitation of the right, in much the same
way as individual freedom yields to the exercise of the police power of the State in the interest of general
welfare. The difference again is that the power comes into being during extreme emergencies the exercise of
which, for complete effectiveness for the purpose it was granted should not permit intereference, while
individual freedom is obviously for full enjoyment in time of peace, but in time of war or grave peril to the
nation, should be limited or restricted. In a true sense then, our Constitution is for both peacetime and in time of
war; it is not that in time of war the Constitution is silenced. The Founding Fathers, with admirable foresight and
vision, inserted provisions therein that come into play and application in time of war or similar emergencies. So
it is that, as proclaimed by the Constitution, the defense of the State is a prime duty of government. Compulsory
military service may be imposed, certainly a mandate that derogates on the right to personal liberty. It, therefore,
becomes self-evident that the duty of the judiciary to protect individual rights must yield to the power of the
Executive to protect the State, for if the State perishes, the Constitution, with the Bill of Rights that guarantees
the right to personal liberty, perishes with it.

In times of war or national emergency, the legislature may surrender a part of its power of legislation to the
President. 13 Would it not be as proper and wholly acceptable to lay down the principle that during such crises,
the judiciary should be less jealous of its power and more trusting of the Executive in the exercise of its
emergency powers in recognition of the same necessity? Verily, the existence of the emergencies should be left
to President's sole and unfettered determination. His exercise of the power to suspend the privilege of the writ of
habeas corpus on the occasion thereof, should also be beyond judicial review. Arbitrariness, as a ground for
judicial inquiry of presidential acts and decisions, sounds good in theory but impractical and unrealistic,
considering how well-nigh impossible it is for the courts to contradict the finding of the President on the
existence of the emergency that gives occasion for the exercise of the power to suspend the privilege of the writ.
For the Court to insist on reviewing Presidential action on the ground of arbitrariness may only result in a violent
collision of two jealous powers with tragic consequences, by all means to be avoided, in favor of adhering to the
more desirable and long-tested doctrine of "political question" in reference to the power of judicial review. 14

Amendment No. 6 of the 1973 Constitution, as earlier cited, affords further reason for the reexamination of the
Lansang doctrine and reversion to that of Barcelon vs. Baker and Montenegro vs. Castaneda.

Accordingly, We hold that in times of war and similar emergency as expressly provided in the Constitution, the
President may suspend the privilege of the writ of habeas corpus, which has the effect of allowing the Executive
to defer the prosecution of any of the offenses covered by Proclamation No. 2045, including, as a necessary
consequence, the withholding for the duration of the suspension of the privilege, of the right to bail. The power
could have been vested in Congress, instead of the President, as it was so vested in the United States for which
reason, when President Lincoln himself exercised the power in 1861, Chief Justice Taney of the U.S. Supreme
Court expressed the opinion that Congress alone possessed this power under the Constitutional., 15 Incidentally,
it seems unimaginable that the judiciary could subject the suspension, if decreed through congressional action, to
the same inquiry as our Supreme Court did with the act of the President, in the Lansang case, to determine if the
Congress acted with arbitrariness.

We further hold that under LOI 1211, a Presidential Commitment Order, the issuance of which is the exclusive
prerogative of the President under the Constitution, may not be declared void by the courts, under the doctrine of
"political question," as has been applied in the Baker and Castaneda cases, on any ground, let alone its supposed
violation of the provision of LOI 1211, thus diluting, if not abandoning the doctrine of the Lansang case. The
supreme mandate received by the President from the people and his oath to do justice to every man should be
sufficient guarantee, without need of judicial overseeing, against commission by him of an act of arbitrariness in
the discharge particularly of those duties imposed upon him for the protection of public safety which in itself
includes the protection of life, liberty and property. This Court is not possessed with the attribute of infallibility
that when it reviews the acts of the President in the exercise of his exclusive power, for possible fault of
arbitrariness, it would not itself go so far as to commit the self-same fault.

Finally, We hold that upon the issuance of the Presidential Commitment Order against herein petitioners, their
continued detention is rendered valid and legal, and their right to be released even after the filing of charges
against them in court, to depend on the President, who may order the release of a detainee or his being placed
under house arrest, as he has done in meritorious cases.

WHEREFORE, the instant petition should be, as it is hereby dismissed.

SO ORDERED.

xxxix
xl
G.R. No. 191756 November 25, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
JONAS GUILLEN y ATIENZA, Accused-Appellant.

DECISION

DEL CASTILLO, J.:

On appeal is the November 26, 2009 Decision1 of the Court of Appeals CA) in CA-G.R. CR-H.C. No. 03476
which affirmed the June 10, 2008 Decision2 of the Regional Trial Court RTC) of Manila, Branch 48 finding
appellant Jonas Guillen y Atienza guilty beyond reasonable doubt of the crime of rape.

On May 31, 2002, an Information3 was filed charging appellant with the crime of rape, the accusatory portion of
which reads as follows:

That on or about May 20, 2002, in the City of Manila, Philippines, the said accused, by means of force, violence
and intimidation, by entering the room of "AAA",4 poking a balisong at her neck, forcing her to lie down on the
floor, pressing her with his thighs and removing her duster and panty and thereafter pulling down his brief and
shorts, did then and there wilfully, unlawfully and feloniously [insert] his penis into her vagina and succeeded in
having carnal knowledge of "AAA" against the latter’s will and consent, thereby gravely endangering her growth
and development to the damage and prejudice of the said "AAA".

Contrary to law.

When arraigned on July 11, 2002, appellant pleaded not guilty.5

Factual Antecedents

The version of the prosecution as summarized by the Office of the Solicitor General (OSG) are as follows:

On May 20, 2002, around 12 midnight, x x x "AAA" was inside her room on the second floor of a two-storey
house located at x x x Sampaloc, Manila. At that time "AAA" was playing cards x x x while waiting for her
common-law husband to arrive. Momentarily, someone knocked at the door. When "AAA" opened the door,
appellant Jonas Guillen y Atienza, who was her neighbor, entered the room and suddenly poked a balisong on
her neck. Appellant then turned off the lights, removed his clothes, placed himself on top of "AAA," and inserted
his penis inside her private parts. After the rape was consummated, appellant stood up and casually left the room.

x x x "AAA" immediately went out and x x x sought assistance from her sister-in-law. After being told of the
incident, "AAA’s" sister-in-law contacted the police. When the responding police officers arrived, appellant, who
was readily identified by "AAA" since he was her neighbor, was immediately arrested.
Per request for a medico legal examination prepared by P/Sr. Supt. Amador Serrano Pabustan of the Western
Police District, "AAA" was brought to the National Bureau of Investigation (NBI) for physical examination.
Dra. Annabelle Soliman, NBI medico-legal officer, conducted medical and genital examinations on "AAA". The
Preliminary Report dated May 20, 2002 issued by Dra. Soliman shows the following findings: 1) With
extragenital physical injury noted; 2) Healed hymenal laceration present; and 3) Pending laboratory examination
result.

The Medico-Legal Report Number MG-02-366 issued by Dra. Soliman shows that private complainant’s hymen
had "deep healed laceration at 7 o’clock position;" positive for spermatozoa; and that there was "evident sign of
extragenital physical injury noted on the body of the subject at the time of the examination.6

Appellant denied the charge against him. He claimed that he had a drinking spree at Galas, Quezon City and
went home to Sampaloc, Manila at around 1:00 o’clock in the morning of May 20, 2002. He surmised that
"AAA" filed the charge against him because of his prior altercation with "AAA’s" husband.

Ruling of the Regional Trial Court

In a Decision dated June 10, 2008, the trial court found appellant guilty as charged. The dispositive portion of
the Decision reads:

WHEREFORE, the Court finds accused JONAS GUILLEN Y ATIENZA guilty beyond reasonable doubt for the
felony of RAPE and pursuant to law, he is sentenced to suffer a prison term of reclusion perpetua and to pay
victim the following:

₱50,000.00 as moral damages;

₱30,000.00 as exemplary damages; and

To pay the cost.

The BJMP of the Manila City Jail is ordered to commit the accused to the National Bilibid Prison without
unnecessary delay.

SO ORDERED.7

Aggrieved, appellant filed a Notice of Appeal8 which was given due course by the trial court in its Order9 dated
June 13, 2008.

Ruling of the Court of Appeals

After the filing of the parties’ briefs, the CA rendered its Decision disposing as follows:

WHEREFORE, in the light of all the foregoing, the instant appeal is DISMISSED for lack of merit. The decision
of the trial court dated June 10, 2008 is AFFIRMED.

SO ORDERED.10

Hence, this appeal.

ISSUE
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF RAPE
DESPITE THE PROSECUTION’S FAILURE TO OVERTHROW THE CONSTITUTIONAL PRESUMPTION
OF INNOCENCE IN HIS FAVOR.11

Appellant claims that the trial court gravely erred when it deemed his silence at the police station immediately
after his arrest as an implied admission of guilt. He also argues that aside from being incredible, "AAA’s"
testimony is insufficient to establish his guilt beyond reasonable doubt. Moreover, he insists that "AAA’s" healed
lacerations do not prove that he indeed raped "AAA."

OUR RULING

The appeal lacks merit.

Indeed, records show that appellant remained silent and passive despite being confronted by "AAA" with the
rape charge at the police station immediately after his arrest. In taking appellant’s silence as an implied
admission of guilt, the RTC ratiocinated that:

Owing to the complaint of the victim, the accused was apprehended by responding police officer[s] of the
Sampaloc Police Station. At the police precinct, the accused was presented to the victim and [he] was positively
identified as the person who raped her. At this juncture, the accused after he was positively identified as the
malefactor who sexually molested and raped the victim x x x just [remained] SILENT. In other words, he did not
DENY the accusation lodged against him by the victim much less register any vehement PROTEST at the
station.

The aforesaid blatant FAILURE of the accused to deny victim’s complaint against him is equivalent to an
IMPLIED ADMISSION of guilt. Assuming arguendo that he is innocent of the accusation filed against him, he
should have stood firm in his contention that he didn’t rape/abuse the victim and should have stressed at the
police station that on the date and time of the incident he was having a drinking spree with his friends.

A person who is accused of a felony/offense which he did not commit should be as BOLD and FEROCIOUS as
a LION in protecting the trampled rights as an innocent person.12

Appellant claims that his silence should not be used against him as he was just exercising his constitutional right
to remain silent.

We agree with the appellant.

It should be borne in mind that when appellant was brought to the police station, he was already a suspect to the
crime of rape. As such, he was already under custodial investigation. Section 12, Article III of the Constitution
explicitly provides, viz:

Any person under investigation for the commission of an offense shall have the right to be informed of his right
to remain silent and to have competent and independent counsel preferably of his own choice. If the person
cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in
writing and in the presence of counsel.

Clearly, when appellant remained silent when confronted by the accusation of "AAA" at the police station, he
was exercising his basic and fundamental right to remain silent. At that stage, his silence should not be taken
against him. Thus, it was error on the part of the trial court to state that appellant’s silence should be deemed as
implied admission of guilt. In fact, this right cannot be waived except in writing and in the presence of counsel
and any admission obtained in violation of this rule shall be inadmissible in evidence.13
In any case, we agree with the Decision of the trial court, as affirmed by the CA, finding appellant guilty of the
crime of rape. The trial court’s Decision convicting appellant of rape was anchored not solely on his silence and
so-called implied admission. More importantly, it was based on the testimony of "AAA" which, standing alone,
is sufficient to establish his guilt beyond reasonable doubt.

Article 266-A of the Revised Penal Code specifically provides that rape may be committed by a man who shall
have carnal knowledge of a woman through force, threats or intimidation. In this case, "AAA" categorically
testified that appellant forcibly undressed her, poked a knife at her neck, and inserted his penis into her vagina
without her consent and against her will. Thus, all elements of the crime of rape were duly established from the
testimony of "AAA". Moreover, "AAA" positively identified appellant as her assailant.

Appellant could only offer alibi and denial as his defenses. However, alibi and denial are weak defenses
especially when measured up against the positive identification made by the victim pointing to appellant as the
malefactor. Besides, appellant failed to prove that it was physically impossible for him to be at the crime scene at
the time of its commission. Aside from claiming that he was at Galas, Quezon City when the rape incident
happened, he failed to submit any proof to show that it is physically impossible for him to be at Sampaloc,
Manila where and when the rape happened. Besides, appellant’s alibi crumbles in the face of his apprehension
near the scene of the crime immediately after "AAA" reported the incident to the police authorities.

We are not persuaded by appellant’s contention that he could not have raped "AAA" inside her room as the
discovery of the crime would have been more likely considering its proximity to the room of "AAA’s" sister-in-
law. Jurisprudence teaches us that rape may be committed even in places where people congregate. Thus, it is not
impossible or unlikely that rape is perpetrated inside a room adjacent to a room occupied by other persons, as in
this case.

Likewise, the failure of "AAA" to shout for help should not be taken against her.1âwphi1 People react differently
when confronted with a shocking or startling situation. Some may show aggressive resistance while others may
opt to remain passive. The failure of "AAA" to shout for help and seek assistance should not be construed as
consent, or as voluntarily engaging in an illicit relationship with the appellant, as implied by the defense. It
would be recalled that appellant poked a knife at "AAA’s" neck. Such threat of immediate danger to her life
cowed "AAA" to submit to the carnal desires of the appellant. However, immediately after appellant left, "AAA"
lost no time in seeking the help of her sister-in-law and in reporting the incident to the police authorities. In fact,
the police authorities were able to apprehend appellant because "AAA" immediately reported the incident to
them.

Anent appellant’s contention that "AAA’s" healed hymenal laceration does not prove rape, we find the same
irrelevant and immaterial. Hymenal laceration, whether fresh or healed, is not an element of the crime of rape.
Even a medical examination is not necessary as it is merely corroborative. As we mentioned before, the fact of
rape in this case was satisfactorily established by the testimony of "AAA" alone.

All the elements of rape having been established beyond reasonable doubt, both the trial court and the CA
properly found appellant guilty as charged and correctly imposed on him the penalty of reclusion perpetua.14

The RTC, as affirmed by the CA, awarded "AAA" moral damages of ₱50,000.00, exemplary damages of
₱30,000.00 and cost of suit. In line with prevailing jurisprudence, "AAA" is also entitled to an award of civil
indemnity of ₱50,000.00. In addition, all damages awarded shall earn interest at the rate of 6 per annum from
date of finality of judgment until fully paid.

WHEREFORE, the appeal is DISMISSED. The November 26, 2009 Decision of the Court of Appeals in CA-
G.R. CR-H.C. No. 03476 which affirmed the June 10, 2008 Decision of the Regional Trial Court of Manila,
Branch 48 finding appellant Jonas Guillen y Atienza guilty beyond reasonable doubt of the crime of rape and
sentencing him to suffer the penalty of reclusion perpetua is AFFIRMED with MODIFICATIONS that appellant
is further ordered to pay AAA civil indemnity in the amount of ₱50,000.00 and interest on all damages awarded
at the rate of 6% per annum from date of finality of judgment until fully paid.

SO ORDERED.

xli
xlii

G.R. No. 188487

VAN D. LUSPO, Petitioner

vs.
PEOPLE OF THE PHILIPPINES, Respondent

x-----------------------x

G.R. No. 188547

SUPT. ARTURO H. MONTANO and MARGARITA B. TUGAOEN, Petitioners

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

x-----------------------x

G.R. No. 188556

C/INSP. SALVADOR C. DURAN, SR., Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

RESOLUTION

BRION, J.:

We resolve the present motions filed by C/Insp. Salvador C. Duran, Sr., Supt. Arturo H. Montano and Margarita
B. Tugaoen (accused), seeking reconsideration of our February 14, 2011 Decision which reads:

WHEREFORE, foregoing considered, the conviction of Salvador Duran, Sr., Arturo Montano, and Margarita
Tugaoen in Sandiganbayan Criminal Case No. 20192 is hereby AFFIRMED.

The conviction of Van Luspo in Criminal Case No. 20192 is REVERSED and SET ASIDE, and he is hereby
ACQUITTED. The bailbond posted for his provisional liberty is hereby CANCELLED.

Salvador Duran, Sr., Arturo Montano, and Margarita Tugaoen are further ORDERED to jointly and severally
indemnify the Philippine National Police of Ten Million Pesos (P10,000,000.00).
SO ORDERED.

Let us briefly recall the facts.

On August 11, 1992, the Office of the Directorate for Comptrollership (ODC) of the Philippine National Police
(PNP) issued two (2) Advices of Sub-Allotment (ASA), amounting to five million pesos each, for the purchase
of combat, clothing, and individual equipment (CCIE items) for the PNP’s North Capital Command
(CAPCOM).1

Upon receipt of the ASAs, P/Supt. Arturo Montano (Montano), Chief Comptroller, North CAPCOM, directed
Police Chief Inspector Salvador Duran, Sr. (Duran), Chief, Regional Finance Service Unit, North CAPCOM, to
prepare and draw 100 checks of ₱100,000.00 each, for a total of P10,000,000.00. The checks were all dated
August 12, 1992 and payable to four different entities2 that are all owned and operated by Margarita Tugaoen
(Tugaoen) who later collected the proceeds of the checks from the United Coconut Planters Bank (UCPB),
Cubao Branch.

In her March 5, 1993 sworn statement, Tugaoen admitted that she received the P10 million worth of checks as
payment for the previously accumulated PNP debts and not for any CCIE items that she delivered.3 P/CInsp.
Isaias Braga, Chief Logistics Officer, North CAPCOM, and Rolando Flores, Supply Accountable Officer, North
CAPCOM confirmed the non-delivery of the CCIE.

After the PNP, General Headquarters, Office of the Inspector General (GHQ-OIG), and subsequently the
Ombudsman, conducted an investigation on the CCIE North Capcom transaction, the Ombudsman for the
Armed Forces of the Philippines (now Ombudsman for the Military and Other Law Enforcement Offices)
recommended the filing of an Information for 100 counts of Malversation of Public Funds against several PNP
officials, including the accused.

On January 26, 2004, the Office of the Special Prosecutor (OSP) filed an Information, but this was for violation
of Section 3(e) of Republic Act (RA) No. 3019,4 the Anti-Graft and Corrupt Practices Act. The Information
alleged that the accused, among others, conspired with each other and with bad faith and manifest partiality
caused undue injury to the government by causing the payment of ₱10,000,000.00 to Tugaoen for the CCIE
items that were not actually delivered.

After the prosecution presented its evidence, the accused filed a demurrer to evidence, primarily questioning the
admissibility of the checks (and its accompanying documents) and Tugaoen’s sworn statements. The
Sandiganbayan denied the demurrer to evidence.5 While none of the accused took the witness stand, Montano
and Tugaoen maintained the inadmissibility of the evidence.6

The Sandiganbayan found the accused guilty as charged.7 The court found that the prosecution successfully
established the elements of Section 3(e) of RA No. 3019. First, the accused are public officers, except Tugaoen
who, however acted in conspiracy with her co-accused. Second, the accused acted with evident bad faith by
splitting the payment of ₱10,000,00.00 into 100 checks for ₱100,000.00 despite the fact that the ultimate payee
is one and the same and contrary to the accused’s claim that they are authorized to sign the checks regardless of
amount. At the same time, the splitting of payment violates Commission on Audit (COA) Circular No. 76-41.8

Second, by issuing the checks, the accused made it appear that there were legal transactions between PNP and
the four business establishments owned by accused Tugaoen on the purchase and delivery of CCIE items despite
the lack of documents to support these alleged transactions.

Third, undue injury is present in the amount of ₱10,000,000.00 for the supposed purchases of CCIE items that
were never delivered to the end-users.
The Court upheld the conviction of the accused on appeal. The Court ruled that Montano and Duran’s bad faith
was evident from their "failure to prepare and submit the required documentation ordinarily attendant to
procurement transactions and government expenditures, as mandated by Section 4(6) of P.D. No. 1445."9 The
element of undue injury was likewise established by the prosecution’s evidence showing that the North
CAPCOM did not receive the ten million pesos worth of CCIE items despite Tugaoen’s admitted receipt and
encashment of the checks.

Duran’s Motion for Reconsideration

Duran reiterates that his alleged participation in the conspiracy is not sufficient to establish his guilt beyond
reasonable doubt. The act of issuing 100 checks at P100,000.00 does not prove that he conspired with his co-
accused because he only acted in accordance with the instruction and assurance of his superior, co-accused
Montano, and in pursuance of his ministerial duty of preparing and counter-signing the checks.10 In other
words, he was acting in good faith in preparing and countersigning the checks.11

Duran argues that he cannot be faulted for the lack of documentation accompanying the transaction. He claims
that the lack of documentation is "none of [his] business"12 since documentation matters pertain to the office of
his co-accused, Montano, as Chief Comptroller of North CAPCOM.13 The Court erred in imputing bad faith on
him based on "the acts enumerated by [the] Court" in its Decision because these acts "do not fall within the
ambit of his sworn duties."14

Montano and Tugaoen’s Motion for Reconsideration

Montano and Tugaoen alleged that the Court erred in imputing bad faith on them based on documentary
evidence that shows the absence of supporting documents15 to the transactions because these documents are
inadmissible in evidence for being hearsay. None of the persons who executed these documents testified in open
court.16 The prosecution failed to show that Montano and Tugaoen conspired with those charged in the
information.17 The splitting of the checks cannot be the basis of conspiracy because to begin with, the
admissibility of the secondary evidence of the checks is in question. The accused ask the Court to review the
admissibility of these secondary pieces of evidence.18

Accused Tugaoen’s admission that she did not deliver any CCIE items as contained in her statement is
inadmissible under Section 12, Article III of the 1987 Constitution.19

Court’s Ruling

We deny the motions.

Signing the checks is

not a ministerial duty

Contrary to Duran’s claim, affixing his signature on the checks is not a ministerial duty on his part. As he himself
stated in his petition and in his present motion, his position as Chief of the Regional Finance Service Unit of the
North CAPCOM imposed on him the duty "to be responsible for the management and disbursement and
accounting of PNP funds." This duty evidently gives him the discretion, within the bounds of law, to review,
scrutinize, or countercheck the supporting documents before facilitating the payment of public funds.

His responsibility for the disbursement and accounting of public funds makes him an accountable officer.
Section 106 of Presidential Decree No. 1445 requires an accountable officer, who acts under the direction of a
superior officer, to notify the latter of the illegality of the payment in order to avoid liability. This duty to notify
presupposes, however, that the accountable officer had duly exercised his duty in ensuring that funds are
properly disbursed and accounted for by requiring the submission of the supporting documents for his review.

By relying on the supposed assurances of his co-accused Montano that the supporting documents are all in
order,20 contrary to what his duties mandate, Montano simply assumed that these documents exist and are
regular on its face even if nothing in the records indicate that they do and they are. The nature of his duties is
simply inconsistent with his "ministerial" argument. With Duran’s failure to discharge the duties of his office and
given the circumstances attending the making and issuance of the checks, his conviction must stand.

We clarify that the Court’s finding of bad faith is not premised on Duran’s failure "to prepare and submit" the
supporting documents but for his failure to require their submission for his review. While the preparation and
submission of these documents are not part of his responsibilities, his failure to require their submission for his
review, given the circumstances, amply establishes his bad faith in preparing and issuing checks that eventually
caused undue injury to the government.

Tugaoen’s statement before the

PNP investigating committee is
admissible in evidence

On the issue raised by Tugaoen and Montano on the admissibility of the checks and of the statements made by
Tugaoen before the investigating committee, we note that these arguments are mere rehashes of the arguments
that they raised before the Sandiganbayan in their Motion to Dismiss and in this Court in their Petition for
Review. We maintain our ruling that the Sandiganbayan committed no reversible error in this regard.

In an attempt to prove the applicability of the best evidence rule rather than the exception - entries in the regular
course of business - on the secondary evidence of the checks, Tugaoen and Montano direct the Court’s attention
to the ruling of the Sandiganbayan in another case involving the issuance of checks in the aggregate amount of
Php20 million as cash advances intended as payment for CCIE items for the use of PNP personnel of Region 7.
In that case, the Sandiganbayan rejected the admissibility of the microfilm copies of the checks presented by the
prosecution on the ground that it violates the best evidence rule, and eventually acquitted the accused.21

We do not and cannot share their positions.

It is inappropriate for the accused to rely on a lower court’s decision (although involving some factual
similarities with the present criminal case) that was rendered after this Court had already made its own ruling,
affirming the accused’s conviction. To begin with, in our judicial hierarchy, only the pronouncements of this
Court are doctrinal and binding on all other courts. There is only one Supreme Court from whose decisions all
other courts should take their bearings. Our judicial system does not work the other way around.

For our present purposes, we are only called upon to determine whether the Sandiganbayan committed an error
of law in convicting the petitioners of the crime for which they were charged. The legal correctness of its
decision in another case does not only lack the force of jurisprudence but is not even an issue before us. It would
do well for the petitioners not to confuse themselves. With the admissibility of the checks in evidence and the
prosecution’s evidence on the manner and circumstances by which they were prepared, we find no reason to
disturb our finding that conspiracy exists and that the accused acted in bad faith.

The prosecution was also able to prove injury to the government through the testimony of Tuscano (the Supply
Accountable Officer of the PNP) that the delivery of P10 million worth of CCIE items for North CAPCOM in
1992 is not supported by the available record. This testimony in turn finds support from accused Tugaoen’s own
statement that she did not deliver any CCIE in exchange for the checks that she encashed (and from the written
declarations of P/CInsp. Isaias Braga, Chief Logistics Officer, North CAPCOM, and Rolando Flores, Supply
Accountable Officer, North CAPCOM).
Tugaoen though questions the admissibility of her statement before the investigating committee that she did not
deliver any CCIE items in exchange for the checks on the ground that it violates her right under Section 12,
Article III of the 1987 Constitution.

In People v. Marra,22 we held that custodial investigation involves any questioning initiated by law enforcement
authorities after a person is taken into custody or otherwise deprived of his freedom of action in any significant
manner. The rule on custodial investigation begins to operate as soon as the investigation ceases to be a general
inquiry into an unsolved crime and the interrogation is then aimed on a particular suspect who has been taken
into custody and to whom the police would then direct interrogatory questions that tend to elicit incriminating
statements. The situation contemplated is more precisely described as one where –

After a person is arrested and his custodial investigation begins a confrontation arises which at best may be
termed unequal.1âwphi1 The detainee is brought to an army camp or police headquarters and there questioned
and cross-examined not only by one but as many investigators as may be necessary to break down his morale.
He finds himself in a strange and unfamiliar surrounding, and every person he meets he considers hostile to him.
The investigators are well-trained and seasoned in their work. They employ all the methods and means that
experience and study has taught them to extract the truth, or what may pass for it, out of the detainee. Most
detainees are unlettered and are not aware of their constitutional rights. And even if they were, the intimidating
and coercive presence of the officers of the law in such an atmosphere overwhelms them into silence xxx.23

Accordingly, contrary to the accused Tugaoen’s claim, the fact that she was "invited" by the investigating
committee does not by itself determine the nature of the investigation as custodial. The nature of the proceeding
must be adjudged on a case to case basis.

The Sandiganbayan correctly ruled that the investigation where Tugaoen made her statement was not a custodial
investigation that would bring to the fore the rights of the accused and the exclusionary rule under paragraph 3,
Section 12, Article III of the 1987 Constitution. The investigator’s reminder to Tugaoen of her Miranda rights
during the investigation cannot be determinative of the nature of the investigation. Otherwise, following the
logic of this claim, the law enforcer’s own failure or even disregard of his duty to inform an individual he
investigates of his custodial investigation rights would suffice to negate the character of an investigation as
legally a custodial investigation. Ultimately, the nature of the investigation must be determined by appreciating
the circumstances surrounding it as a whole.

In the present case, the investigation conducted by the PNP GHQOIG, was prompted by the report from the
COA regarding disbursement irregularities for CCIE items in Regions VII and VIII, North CAPCOM. In short, it
was simply a general inquiry to clear the air of reported anomalies and irregularities within the PNP which a
constitutional body found and reported as part of its constitutional power and duty. Naturally, this investigation
would involve persons with whom the PNP had contracts that are subject of the COA scrutiny. That what was
conducted is an ordinary administrative (and not custodial) investigation is supported by the fact that the
investigating committee also took the statements of other PNP officials who ended up not being charged with a
crime. In this regard, the Sandiganbayan correctly observed:

The most crucial question to answer that could have absolved the accused from liability is whether the subject
purchases of CCIE items were truly "ghost purchases", as contended by the prosecution. It is very ironic that no
single end user among thousands of police officers and men came forward to attest and declare to the world that
indeed he received the CCIE items subject matter of the case, thereby leaving the prosecution's theory reinforced
and unrebutted.

The admitted non-delivery of the CCIE items by the supposed contractor, Tugaoen, well explains why Duran had
to argue in vain that the making and issuance of the checks were ministerial on his part (despite his clear
responsibility for the "management and disbursement and accounting of PNP funds"). Accordingly, the fact that
none of the persons who executed the documents cited by the Court in its Decision testified in open court is not
fatal to the accused's conviction. As we already observed in our February 14, 2011 Decision, the prosecution
sufficiently discharged its burden of proof based on the confluence of evidence it presented showing the guilt of
the accused beyond reasonable doubt.

WHEREFORE, premises considered, the motions for reconsideration are DENIED with FINALITY.

SO ORDERED.

xliii
G.R. No. 207950 September 22, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-appellee,

vs.
MARK JASON CHAVEZ y BITANCOR alias "NOY", Accused-appellant.

DECISION

LEONEN, J.:

Every conviction for any crime must be accompanied by the required moral certainty that the accused has
committed the offense charged beyond reasonable doubt. The prosecution must prove "the offender's intent to
take personal property before the killing, regardless of the time when the homicide [was] actually carried out"1 !
n order to convict for the crime of robbery with homicide. The accused may nevertheless be convi·cted of the
separate crime of homicide once the prosecution establishes beyond reasonable doubt the accused's culpability
for the victim's death.

In the information dated November 8, 2006, Mark Jason Chavez y Bitancor (Chavez) was charged with the
crime of robbery with homicide:

That on or about October 28, 2006, in the City of Manila, Philippines, the said accused, did then and there
wilfully, unlawfully and feloniously, with intent of gain and means of force, violence and intimidation upon the
person of ELMER DUQUE y OROS, by then and there, with intent to kill, stabbing the latter repeatedly with a
kitchen knife, thereby inflicting upon him mortal stab wounds which were the direct and immediate cause of his
death thereafter, and on the saidoccasion or by reason thereof, accused took, robbed and carried away the
following:

One (1) Unit Nokia Cellphone

One (1) Unit Motorola Cellphone

Six (6) pcs. Ladies Ring

 Two (2) pcs. Necklace

One (1) pc. Bracelet All of undetermined value and undetermined amount of money, all belonging to said
ELMER DUQUE y OROS @ BARBIE to the damage and prejudice of the said owner/or his heirs, in the said
undetermined amount in Philippines currency.

Contrary to law.2

Chavez pleaded not guilty during his arraignment on December 4, 2006. The court proceeded to trial. The
prosecution presented Angelo Peñamante (Peñamante), P/Chief Inspector Sonia Cayrel (PCI Cayrel), SPO3
Steve Casimiro (SPO3 Casimiro), Dr. Romeo T. Salen (Dr. Salen), and Raymund Senofa as witnesses. On the
other hand, the defense presented Chavez as its sole witness.3

The facts as found by the lower court are as follows.

On October 28, 2006, Peñamante arrived home at around 2:45 a.m., coming from work as a janitor in Eastwood
City.4 When he was about to go inside his house at 1326 Tuazon Street, Sampaloc, Manila, he saw a person
wearing a black, long-sleeved shirt and black pants and holding something while leaving the house/parlor of
Elmer Duque (Barbie) at 1325 Tuazon Street, Sampaloc, Manila, just six meters across Peñamante’s house.5

There was a light at the left side of the house/parlor of Barbie, his favorite haircutter, so Peñamante stated that he
was able to see the face of Chavez and the clothes he was wearing.6

Chavez could not close the door of Barbie’s house/parlor so he simply walked away. However, he dropped
something that he was holding and fell down when he stepped on it.7 He walked away after, and Peñamante was
not able to determine what Chavez was holding.8 Peñamante then entered his house and went to bed.9

Sometime after 10:00 a.m., the Scene of the Crime Office (SOCO) team arrived, led by PCI Cayrel. She was
joined by PO3 Rex Maglansi (photographer), PO1 Joel Pelayo (sketcher), and a fingerprint technician.10 They
conducted an initial survey of the crime scene after coordinating with SPO3 Casimiro of the Manila Police
District Homicide Section.11

The team noted that the lobby and the parlor were in disarray, and they found Barbie’s dead body inside.12 They
took photographs and collected fingerprints and other pieces of evidence such as the 155 pieces of hair strands
found clutched in Barbie’s left hand.13 They documented the evidence then turned them over to the Western
Police District Chemistry Division. Dr. Salen was called to conduct an autopsy on the body.14

At around 11:00 a.m., Peñamante’s landlady woke him up and told him that Barbie was found dead at 9:00 a.m.
He then informed his landlady that he saw Chavez leaving Barbie’s house at 2:45 a.m.15

At around 1:00 p.m., Dr. Salen conducted an autopsy on the body and found that the time of death was
approximately 12 hours prior to examination.16 There were 22 injuries on Barbie’s body — 21 were stab
wounds in various parts of the body caused by a sharp bladed instrument, and one incised wound was caused by
a sharp object.17 Four (4) of the stab wounds were considered fatal.18

The next day, the police invited Peñamante to the Manila Police Station to give a statement. Peñamante
described to SPO3 Casimiro the physical appearance of the person he saw leaving Barbie’s parlor.19

Accompanied by his mother, Chavez voluntarily surrendered on November 5, 2006 to SPO3 Casimiro at the
police station.20 Chavez was then 22 years old.21 His mother told the police that she wanted to help her son
who might be involved in Barbie’s death.22
SPO3 Casimiro informed them ofthe consequences in executing a written statement without the assistance of a
lawyer. However, Chavez’s mother still gave her statement, subscribed by Administrative Officer Alex
Francisco.23 She also surrendered two cellular phones owned by Barbie and a baseball cap owned by Chavez.24

The next day, Peñamante was again summoned by SPO3 Casimiro to identify from a line-up the person he saw
leaving Barbie’s house/parlor that early morning of October 28, 2006.25 Peñamante immediately pointed to and
identified Chavez and thereafter executed his written statement.26 There were no issues raised in relation to the
line-up.

On the other hand, Chavez explained that he was athome on October 27, 2006, exchanging text messages
withBarbie on whether they could talk regarding their misunderstanding.27 According to Chavez, Barbie
suspected that he was having a relationship with Barbie’s boyfriend, Maki.28 When Barbie did not reply to his
text message, Chavez decided to go to Barbie’s house at around 1:00 a.m. of October 28, 2006. 29 Barbie
allowed him to enter the house, and he went home after.30

On August 19, 2011, the trial court31 found Chavez guilty beyond reasonable doubt of the crime of robbery with
homicide:

WHEREFORE, in view of the foregoing, this Court finds accused MARK JASON CHAVEZ y BITANCOR @
NOY GUILTY beyond reasonable doubt of the crime of Robbery with Homicideand hereby sentences him to
suffer the penaltyof reclusion perpetua without eligibility for parole.

Further, he is ordered to pay tothe heirs of the victim, Elmer Duque y Oros the sum of 75,000.00 as death
indemnity and another ₱75,000 for moral damages.

SO ORDERED.32

On February 27, 2013, the Court of Appeals33 affirmed the trial court’s decision.34 Chavez then filed a notice of
appeal pursuant to Rule 124, Section 13(c) of the Revised Rules of Criminal Procedure, as amended, elevating
the case with this court.35

This court notified the parties tosimultaneously submit supplemental briefs if they so desire. Both parties filed
manifestationsthat they would merely adopt their briefs before the Court of Appeals.36

In his brief, Chavez raised presumption of innocence, considering that the trial court "overlooked and misapplied
some facts of substance that could have altered its verdict."37 He argued that since the prosecution relied on
purely circumstantial evidence, conviction must rest on a moral certainty of guilt on the part of Chavez.38 In this
case, even if Peñamante saw him leaving Barbie’s house, Peñamante did not specify whether Chavez was acting
suspiciously at that time.39

As regards his mother’s statement,Chavez argued its inadmissibility as evidence since his mother was not
presented before the court to give the defense an opportunity for cross-examination.40 He added that affidavits
are generally rejected as hearsay unless the affiant appears before the court and testifies on it.41

Chavez argued that based on Dr. Salen’s findings, Barbie’s wounds were caused by two sharp bladed
instruments, thus, it was possible that there were two assailants.42 It was also possible that the assailants
committed the crime after Chavez had left Barbie’s house.43 Given that many possible explanations fit the
facts,that which is consistent with the innocence of Chavez should be favored.44

On the other hand, plaintiff-appellee argued that direct evidence is not indispensable when the prosecution
isestablishing guilt beyond reasonable doubt of Chavez.45 The circumstantial evidence presented before the trial
court laid down an unbroken chain of events leading to no other conclusion than Chavez’s acts of killing and
robbing Barbie.46

On the argument made by Chavez that his mother’s statement was inadmissible as hearsay, plaintiff-appellee
explained that the trial court did not rely on, and did not even refer to, any of the statements made by Chavez’s
mother.47

Finally, insofar as Chavez’s submission that Dr. Salen testified on the possibility that there weretwo assailants,
Dr. Salen equally testified on the possibility that there was only one.48 The sole issue now before us iswhether
Chavez is guilty beyond reasonable doubt of the crime of robbery with homicide.

We reverse the decisions of the lower courts, but find Chavez guilty of the crime of homicide.

Chavez was found guilty of the specialcomplex crime of robbery with homicide under the Revised Penal Code:

Art. 294. Robbery with violence against or intimidation of persons – Penalties. – Any person guilty of
robberywith the use of violence against or intimidation of any person shall suffer:

1) The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of
homicide shall have been committed. . . .49

Chavez invokes his constitutional right to be presumed innocent, especially since the prosecution’s evidence is
purely circumstantial and a conviction must stand on a moral certainty of guilt.50

The Rules of Court expressly provides that circumstantial evidence may be sufficient to establish guilt beyond
reasonable doubt for the conviction of an accused:

SEC. 4. Circumstantial evidence, when sufficient. – Circumstantial evidence is sufficient for conviction if:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable
doubt.51

The lower courts found that the circumstantial evidence laid down by the prosecution led to no other conclusion
than the commission by Chavez of the crime charged:

In the instant case, while there is no direct evidence showing that the accused robbed and fatally stabbed the
victim to death, nonetheless, the Court believes that the following circumstances form a solid and unbroken
chain of events that leads to the conclusion, beyond reasonable doubt, that accused Mark Jason Chavez y
Bitancor @ Noy committed the crime charged, vi[z]: first, it has been duly established, as the accused himself
admits, that he went to the parlor of the victim at around 1:00 o’clock in the morning of 28 October 2006 and the
accused was allowed by the victim to get inside his parlor as it serves as his residence too; second, the victim’s
two (2) units of cellular phones (one red Nokia with model 3310 and the other one is a black Motorola) without
sim cards and batteries, which were declared as partof the missing personal belongings of the victim, were
handled to SPO3 Steve Casimiro by the mother of the accused, Anjanette C. Tobias on 05 November 2006 when
the accused voluntarily surrendered, accompanied by his mother, at the police station: third, on 28 October 2006
at about 2:45 o’clock in the morning, witness Angelo Peñamante, who arrived from his work, saw a person
holding and/or carrying something and about toget out of the door of the house of the victim located at 1325 G.
Tuazon Street, Sampaloc, Manila, and trying to close the door but the said person was not able to successfully do
so. He later positively identified the said person at the police station as MARK JASON CHAVEZ y BITANCOR
@ NOY, the accused herein; and finally, the time when the accused decided on 27 October 2006 to patch up
things with the victim and the circumstances (Dr. Salen’s testimony that the body of the victim was dead for
more or less twelve (12) hours) when the latter was discovered fatally killed on 28 October 2006 is not a co-
incidence.

The prosecution has equally established, based on the same circumstantial evidence, that the accused had indeed
killed the victim.52

Factual findings by the trial court on its appreciation of evidence presented by the parties, and even its
conclusions derived from the findings, are generally given great respect and conclusive effect by this court, more
so when these factual findings are affirmed by the Court of Appeals.53

Nevertheless, this court has held that "[w]hat is imperative and essential for a conviction for the crime of robbery
with homicide is for the prosecution to establish the offender’s intent to take personal property before the killing,
regardless of the time when the homicide is actually carried out."54 In cases when the prosecution failed to
conclusively prove that homicide was committed for the purpose of robbing the victim, no accused can be
convicted of robbery with homicide.55

The circumstantial evidence relied on by the lower courts, as quoted previously, do not satisfactorily establish an
original criminal design by Chavez to commit robbery.

At most, the intent to take personal property was mentioned by Chavez’s mother in her statement as follows:

Na si Noy na aking anak ay nagtapat sa akin tungkol sa kanyang kinalaman sa pagkamatay ni Barbie at kasabay
ang pagbigay sa akin ng dalawang (2) piraso ng cellular phones na pag/aari [sic] ni Barbie na kanyang kinuha
pagka/tapos [sic] ng insidente.

Na ipinagtapat din sa akin ni Noy na ang ginamit na panaksak na isang kutsilyo na gamit namin sabahay ay
inihulog niya sa manhole sa tapat ng aming bahay matapos ang insidente.

At ang isang piraso ng kwintas na kinuha rin nya mula kay Barbie ay naisanla niya sa isang sanglaan sa Quezon
City.

Na ang suot niyang tsinelas ay nag/iwan [sic] ng bakas sa pinangyarihan ng insidente. At sya rin ang nakasugat
sa kanyang sariling kamay ng [sic] maganap ang insidente.

Na sinabi niya sa akin na wala siyang intensyon na patayin [sic] si Barbie kundi ay pagnakawan lamang. 56
(Emphasis supplied)

However, this statement is considered as hearsay, with no evidentiary value, since Chavez’s mother was never
presented as a witness during trial to testify on her statement.57

An original criminal design to take personal property is also inconsistent with the infliction of no less than 21
stab wounds in various parts of Barbie’s body.58
The number of stab wounds inflicted on a victim has been used by this court in its determination of the nature
and circumstances of the crime committed.

This may show an intention to ensure the death of the victim. In a case where the victim sustained a total of 36
stab wounds in his front and back, this court noted that "this number of stab wounds inflicted on the victim is a
strong indication that appellants made sure of the success of their effort to kill the victim without risk to
themselves."59

This court has also looked into the number and gravity of the wounds sustained by the victim as indicative ofthe
accused’s intention to kill the victim and not merely to defend himself or others.60

In the special complex crime of robbery with homicide, homicide is committed in order "(a) to facilitate the
robbery or the escape of the culprit; (b) to preserve the possession by the culprit of the loot; (c) to prevent
discovery of the commission of the robbery; or (d) to eliminate witnesses to the commission of the crime."61 21
stab wounds would be overkill for these purposes. The sheer number of stab wounds inflicted on Barbie makes it
difficult to conclude an original criminal intent of merely taking Barbie’s personal property.

In People v. Sanchez,62 this court found accused-appellant liable for the separate crimes of homicide and theft
for failure of the prosecution to conclusively prove that homicide was committed for the purpose of robbing the
victim:

But from the record of this case, we find that the prosecution palpably failed to substantiate its allegations of the
presence of criminal design to commit robbery, independent ofthe intent to commit homicide. There is no
evidence showing that the death of the victim occurred by reason or on the occasion of the robbery. The
prosecution was silent on accused-appellant’s primary criminal intent. Did he intend to kill the victim in order to
steal the cash and the necklace? Or did he intend only to kill the victim, the taking of the latter’s personal
property being merely an afterthought? Where the homicide is notconclusively shown to have been committed
for the purpose of robbing the victim, or where the robbery was not proven at all, there can be no conviction for
robo con homicidio.63

II

This court finds that the prosecution proved beyond reasonable doubt the guilt of Chavez for the separate crime
of homicide.

First, the alibi of Chavez still placeshim at the scene of the crime that early morning of October 28, 2006.

The victim, Elmer Duque, went by the nickname, Barbie, and he had a boyfriend named Maki. Nevertheless,
Chavez described his friendship with Barbie to be "[w]e’re like brothers."64 He testified during cross-
examination that he was a frequent visitor at Barbie’s parlor that he cannot recall how many times he had been
there.65 This speaks of a close relationship between Chavez and Barbie.

Chavez testified that he went to Barbie’s house at 1:00 in the morning of October 28, 2006 to settle his
misunderstanding with Barbie who suspected him of having a relationship with Barbie’s boyfriend:

MARK JASON CHAVEZ was a friend to the victim, Barbie, for almost three (3) years and the two (2) treated
each other like brothers. The latter, however, suspected Mark Jason of having a relationship with Maki Añover,
Barbie’s boyfriend for six (6) months, which resulted in a misunderstanding between them. Mark Jason tried to
patch things up with Barbie so thru a text message he sent on the evening of 27 October 2006, he asked if they
could talk. When Barbie did not reply, he decided to visit him at his parlor at around 1:00 o’clock in the
morning. Barbie let him in and they tried to talk about the situation between them. Their rift, however, was not
fixed so he decided to gohome. Later on, he learned that Barbie was already dead.66

This court has considered motive as one of the factors in determining the presence of an intent to kill,67 and a
confrontation with the victim immediately prior to the victim’sdeath has been considered as circumstantial
evidence for homicide.68

Second, the number of stab wounds inflicted on Barbie strengthens an intention to kill and ensures his death.The
prosecution proved that there was a total of 22 stab wounds found indifferent parts of Barbie’s body and that a
kitchen knife was found in a manhole near Chavez’s house at No. 536, 5th Street, San Beda, San Miguel,
Manila.69

The Court of Appeals’ recitation of facts quoted the statement of Chavez’s mother. This provides, among others,
her son’s confession for stabbing Barbie and throwing the knife used in a manhole near their house:

Na si Noy na aking anak ay nagtapat sa akin tungkol sa kanyang kinalaman sa pagkamatay ni Barbie at kasabay
ang pagbigay sa akin ng dalawang (2) piraso ng cellular phones na pag/aari [sic] ni Barbie na kanyang kinuha
pagka/tapos [sic] ng insidente.

Na ipinagtapat din sa akin ni Noy na ang ginamit na panaksak na isang kutsilyo na gamit namin sa bahay ay
inihulog niya sa manhole sa tapat ng aming bahay matapos ang insidente.

At ang isang piraso ng kwintas nakinuha rin nya mula kay Barbie ay naisanla niya sa isang sanglaan sa Quezon
City.

Na ang suot niyang tsinelas ay nag/iwan [sic] ng bakas sa pinangyarihan ng insidente. At sya rin ang nakasugat
sa kanyang sariling kamay ng [sic] maganap ang insidente.

Na sinabi niya sa akin na wala siyang intensyon na patayin [sic] si Barbie kundi ay pagnakawan lamang. 70
(Emphasis supplied)

Even if this statement was not taken into account for being hearsay, further investigation conducted still led tothe
unearthing of the kitchen knife with a hair strand from a manhole near Chavez’s house.71

Third, no reason exists to disturb the lower court’s factual findings giving credence to 1) Peñamante’s positive
identification of Chavez as the person leaving Barbie’s house that early morning of October 28, 200672 and 2)
the medico-legal’s testimony establishing Barbie’s time of death as 12 hours prior to autopsy at 1:00 p.m., thus,
narrowing the time of death to approximately 1:00 a.m. of the same day, October 28, 2006.73

All these circumstances taken together establish Chavez’s guilt beyond reasonable doubt for the crime of
homicide.

III

There is a disputable presumption that "a person found in possession of a thing taken in the doing of a recent
wrongful act is the taker and the doer of the whole act; otherwise, thatthing which a person possesses, or
exercises acts of ownership over, are owned by him."74 Thus, when a person has possession of a stolen property,
hecan be disputably presumed as the author of the theft.75

Barbie’s missing cellular phones were turned over to the police by Chavez’s mother, and this was never denied
by the defense.76 Chavez failed to explain his possession of these cellular phones.77 The Court of Appeals
discussed that "a cellular phone has become a necessary accessory, no person would part with the same for a
long period of time, especially in this case as it involves an expensive cellular phone unit, as testified by Barbie’s
kababayan, witness Raymond Seno[f]a."78

However, with Chavez and Barbie’s close relationship having been established, there is still a possibilitythat
these cellphones were lent to Chavez by Barbie.

The integrity of these cellphones was also compromised when SPO3 Casimiro testified during cross-examination
that the police made no markings on the cellphones, and their SIM cards were removed.

Q: But you did not place any marking on the cellphone, Mr. witness?

A: No, sir.

Atty. Villanueva: No further questions, Your Honor.

Court: When you received the items,there were no markings also?

Witness: No, Your Honor.

Court: The cellular phones, were they complete with the sim cards and the batteries?

A: There’s no sim card, Your Honor.

Q; No sim card and batteries?

A; Yes, Your Honor.

Q: No markings when you receivedand you did not place markings when these were turned over to the Public
Prosecutor, no markings?

A: No markings, Your Honor.79

The other missing items were no longer found, and no evidence was presented to conclude that these weretaken
by Chavez. The statement of Chavez’s mother mentioned that her son pawned one of Barbie’s necklaces ["At
ang isang piraso ng kwintas na kinuha rin nya mula kay Barbie ay naisanla niya sa isang sanglaan sa Quezon
City"80 ], but, as earlier discussed, this statement is mere hearsay.

In any case, the penalty for the crime of theft is based on the value of the stolen items.81 The lower court made
no factual findings on the value of the missing items enumerated in the information — one Nokia cellphone unit,
one Motorola cellphone unit, six pieces ladies ring, two pieces necklace, and one bracelet.

At most, prosecution witness Raymund Senofa, a town mate of Barbie, testified that he could not remember the
model of the Motorola fliptype cellphone he saw used by Barbie but that he knew it was worth 19,000.00 more
or less.82 This amounts to hearsay as he has no personal knowledge on how Barbie acquired the cellphone or for
how much.

These circumstances create reasonable doubt on the allegation that Chavez stole the missing personal properties
of Barbie.
It is contrary to human nature for a mother to voluntarily surrender her own son and confess that her son
committed a heinous crime.

Chavez was 22 years old, no longer a minor, when he voluntarily went to the police station on November 5, 2006
for investigation,83 and his mother accompanied him. SPO3 Casimiro testified that the reason she surrendered
Chavez was because "she wanted to help her son"84 and "perhaps the accused felt that [the investigating police]
are getting nearer to him."85 Nevertheless, during cross-examination, SPO3 Casimiro testified:

Q: Regarding the mother, Mr. witness, did I get you right that when the mother brought her son, according to you
she tried to help her son, is that correct?

A: That is the word I remember, sir.

Q: Of course, said help you do notknow exactly what she meant by that?

A: Yes, sir.

Q: It could mean that she is trying to help her son to be cleared from this alleged crime, Mr. witness?

A: Maybe, sir.86

Chavez’s mother "turned-over (2) units of Cellular-phones and averred that her son Mark Jason told her that said
cellphones belong[ed] to victim Barbie. . . [that] NOY was wounded in the incident and that the fatal weapon
was put in a manhole infront[sic] of their residence."87 The records are silent on whether Chavez objected to his
mother’s statements. The records also do not show why the police proceeded to get his mother’s testimony as
opposed to getting Chavez’s testimony on his voluntary surrender.

At most, the lower court found thatChavez’s mother was informed by the investigating officer at the police
station of the consequences in executing a written statement withoutthe assistance of a lawyer.88 She proceeded
to give her statement dated November 7, 2006 on her son’s confession of the crime despite the warning. 89 SPO3
Casimiro testified during his cross-examination:

Q: Do you remember if anybody assisted this Anjanette Tobias when she executed this Affidavit you mentioned?

A: She was with some neighbors.

Atty. Villanueva

Q: How about a lawyer, Mr. Witness?

A: None, sir.

Q: So, in other words, no lawyer informed her of the consequence of her act of executing an Affidavit?

A: We somehow informed her of what will be the consequences of that statement, sir.

Q: So, you and your police officer colleague at the time?

A: Yes, sir.90
The booking sheet and arrest report states that "when [the accused was] appraised [sic] of his constitutional
rights and nature of charges imputed against him, accused opted to remain silent."91 This booking sheet and
arrest report is also dated November 7, 2006, or two days after Chavez, accompanied by his mother, had
voluntarily gone to the police station.

The right to counsel upon being questioned for the commission of a crime is part of the Miranda rights, which
require that:

. . . (a) any person under custodial investigation has the right to remain silent; (b) anything he says can and will
be used against him in a court of law; (c) he has the right totalk to an attorney before being questioned and to
have his counsel present when being questioned; and (d) if he cannot afford an attorney, one will be provided
before any questioning if he so desires.92

The Miranda rightswere incorporated in our Constitution but were modified to include the statement thatany
waiver of the right to counsel must be made "in writing and in the presence of counsel."93

The invocation of these rights applies during custodial investigation, which begins "when the police
investigation is no longer a general inquiry into an unsolved crime but has begun tofocus on a particular suspect
taken into custody by the police who starts the interrogation and propounds questions to the person to elicit
incriminating statements."94

It may appear that the Miranda rightsonly apply when one is "taken into custody by the police," such as during
an arrest. These rights are intended to protect ordinary citizens from the pressures of a custodial setting:

The purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce or trick captive
suspects into confessing, to relieve the "inherently compelling pressures" "generated by the custodial setting
itself," "which work to undermine the individual’s will to resist," and as much as possible to free courts from the
task of scrutinizing individual cases to try to determine, after the fact, whether particular confessions were
voluntary. Those purposes are implicated as much by in-custody questioning of persons suspected of
misdemeanours as they are by questioning of persons suspected of felonies.95 (Emphasis supplied)

Republic Act No. 743896 expanded the definition of custodial investigation to "include the practice ofissuing an
‘invitation’ to a person who is investigated in connection with an offense he is suspected to have committed,
without prejudice to the liability of the ‘inviting’ officer for any violation of law."97

This means that even those who voluntarily surrendered before a police officer must be apprised of their
Miranda rights. For one, the same pressures of a custodial setting exist in this scenario. Chavez is also being
questioned by an investigating officer ina police station. As an additional pressure, he may have been compelled
to surrender by his mother who accompanied him to the police station.

This court, thus, finds that the circumstantial evidence sufficiently proves beyond reasonable doubt that Chavez
is guilty of the crime of homicide, and not the special complex crime of robbery with homicide.

On the service of Chavez’s sentence, the trial court issued the order dated November 14, 2006 in that "as prayed
for, the said police officer is hereby ordered to immediately commit accused, Mark Jason Chavez y Bitancor @
Noy to the Manila City Jail and shall be detained thereat pending trial of this case and/or untilfurther orders from
this court."98 The order of commitment dated September 28, 2011 was issued after his trial court conviction in
the decision dated August 19, 2011.

Chavez has been under preventive detention since November 14, 2006, during the pendency of the trial. 1âwphi1
This period may be credited in the service of his sentence pursuant to Article 29 of the Revised Penal Code, as
amended:

ART. 29. Period of preventive imprisonment deducted from term of imprisonment.– Offenders or accused who
have undergone preventive imprisonment shall be credited in the service of their sentence consisting of
deprivation of liberty, with the full time during which they have undergone preventive imprisonment if the
detention prisoner agrees voluntarily in writing after being informed of the effects thereof and with the assistance
of counsel to abide by the same disciplinary rules imposed upon convicted prisoners, except in the following
cases:

1. When they are recidivists, or have been convicted previously twice or more times of any crime; and

2. When upon being summoned for the execution of their sentence they have failed to surrender
voluntarily.

If the detention prisoner does notagree to abide by the same disciplinary rules imposed upon convicted prisoners,
he shall do so in writing with the assistance of a counsel and shall be credited in the service of his sentence with
four-fifths of the time during which he has undergone preventive imprisonment.

Credit for preventive imprisonment for the penalty of reclusion perpetua shall be deducted from thirty (30) years.

Whenever an accused has undergone preventive imprisonment for a period equal to the possible maximum
imprisonment of the offense charged to which he may be sentenced and his case is not yet terminated, he shall be
released immediately without prejudice to the continuation of the trial thereof or the proceeding on appeal, if the
same is under review. Computation of preventive imprisonment for purposes of immediate release under this
paragraph shall be the actual period of detention with good conduct time allowance: Provided, however, That if
the accused is absent without justifiable cause at any stage of the trial, the court may motu proprio order the
rearrest of the accused: Provided, finally, That recidivists, habitual delinquents, escapees and persons charged
with heinous crimes are excluded from the coverage of this Act. In case the maximum penalty to which the
accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment.99

Finally, this court laments thatobject evidence retrieved from the scene of the crime were not properly handled,
and no results coming from the forensic examinations were presented to the court. There was no examination of
the fingerprints found on the kitchen knife retrieved from the manhole near the house of Chavez.100 There were
no results of the DNA examination done on the hair strands found with the knife and those in the clutches of the
victim. Neither was there a comparison made between these strands of hair and Chavez’s. There was no report
regarding any finding of traces of blood on the kitchen knife recovered, and no matching with the blood of the
victim or Chavez’s. The results of this case would have been rendered with more confidence at the trial court
level had all these been done. In many cases, eyewitness testimony may not be as reliable — or would have been
belied — had object evidence been properly handled and presented.

We deal with the life of a personhere. Everyone’s life — whether it be the victim’s or the accused’s — is
valuable. The Constitution and our laws hold these lives in high esteem. Therefore, investigations such as these
should have been attended with greaterprofessionalism and more dedicated attention to detail by our law
enforcers. The quality of every conviction depends on the evidence gathered, analyzed, and presented before the
courts. The public’s confidence on our criminal justice system depends on the quality of the convictions we
promulgate against the accused. All those who participate in our criminal justice system should realize this and
take this to heart.
WHEREFORE, the judgment of the trial court is MODIFIED. Accused-appellant Mark Jason Chavez y Bitancor
alias "Noy" is hereby declared GUILTYbeyond reasonable doubt of the separate and distinct crime of
HOMICIDE. Inasmuch as the commission of the crime was not attended by any aggravating or mitigating
circumstances, accused-appellant Chavez is hereby SENTENCEDto suffer an indeterminate penalty ranging
from eight (8) years and one (1) day of prision mayor, as minimum, to seventeen (17) years and four (4) months
of reclusion temporal, as maximum.

Accused-appellant Chavez's period of detention shall be deducted if consistent with Article 29 of the Revised
Penal Code.

SO ORDERED.

G.R. No. 182601 November 10, 2014

JOEY M. PESTILOS, DWIGHT MACAPANAS, MIGUEL GACES, JERRY FERNANDEZ and

RONALD MUNOZ, Petitioners,
vs.
MORENO GENEROSO and PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

BRION, J.:

We resolve the petition for review on certiorari under Rule 45 of the Rules of Court challenging the decision1
dated January 21, 2008 and the resolution2 dated April 17, 2008 of the Court of Appeals (CA) in CAG.R. SP No.
91541.

The appealed decision affirmed the Order dated March 16, 2005 of the Regional Trial Court (RTC), Branch 96,
Quezon City, denying Joey M. Pestilos, Dwight Macapanas, Miguel Gaces, Jerry Fernandez, and Ronald
Munoz's (petitioners) Urgent Motion for Regular Preliminary Investigation, as well as their subsequent motion
for reconsideration.

The Antecedent Facts

The records of the case reveal that on February 20, 2005, at around 3: 15 in the morning, an altercation ensued
between the petitioners and Atty. Moreno Generoso (Atty. Generoso) at Kasiyahan Street, Barangay Holy Spirit,
Quezon City where the petitioners and Atty. Generoso reside.3

Atty. Generoso called the Central Police District, Station 6 (Batas an Hills Police Station) to report the incident.4
Acting on this report, Desk Officer SPOl Primitivo Monsalve (SPOJ Monsalve) dispatched SP02 Dominador
Javier (SP02 Javier) to go to the scene of the crime and to render assistance.5 SP02 Javier, together with
augmentation personnel from the Airforce, A2C Alano Sayson and Airman Ruel Galvez, arrived at the scene of
the crime less than one hour after the alleged altercation6 and they saw Atty. Generoso badly beaten.7

Atty. Generoso then pointed to the petitioners as those who mauled him. This prompted the police officers to
"invite" the petitioners to go to Batasan Hills Police Station for investigation.8 The petitioners went with the
police officers to Batasan Hills Police Station.9 At the inquest proceeding, the City Prosecutor of Quezon City
found that the petitioners stabbed Atty. Generoso with a bladed weapon. Atty. Generoso fortunately survived the
attack.10

In an Information dated February 22, 2005, the petitioners were indicted for attempted murder allegedly
committed as follows:

That on or about the 20th h day of February, 2005, in Quezon City, Philippines, the said accused, conspiring
together, confederating with and mutually helping one another, with intent to kill, qualified with evident
premeditation, treachery and taking advantage of superior strength, did then and there, willfully, unlawfully and
feloniously commence the commission of the crime of Murder directly by overt acts, by then and there stabbing
one Atty. MORENO GENEROSO y FRANCO, with a bladed weapon, but said accused were not able to perform
all the acts of execution which would produce the crime of Murder by reason of some cause/s or accident other
than their own spontaneous desistance, that is, said complainant was able to parry the attack, to his damage and
prejudice.

CONTRARY TO LAW.11

On March 7, 2005, the petitioners filed an Urgent Motion for Regular Preliminary Investigation12 on the ground
that they had not been lawfully arrested. They alleged that no valid warrantless arrest took place since the police
officers had no personal knowledge that they were the perpetrators of the crime. They also claimed that they
were just "invited" to the police station. Thus, the inquest proceeding was improper, and a regular procedure for
preliminary investigation should have been performed pursuant to Rule 112 of the Rules of Court.13

On March 16, 2005, the RTC issued its order denying the petitioners' Urgent Motion for Regular Preliminary
Investigation.14 The court likewise denied the petitioners' motion for reconsideration.15

The petitioners challenged the lower court's ruling before the CA on a Rule 65 petition for certiorari. They
attributed grave abuse of discretion, amounting to lack or excess of jurisdiction, on the R TC for the denial of
their motion for preliminary investigation.16

The Assailed CA Decision

On January 21, 2008, the CA issued its decision dismissing the petition for lack of merit.17 The CA ruled that
the word "invited" in the Affidavit of Arrest executed by SP02 Javier carried the meaning of a command. The
arresting officer clearly meant to arrest the petitioners to answer for the mauling of Atty. Generoso. The CA also
recognized that the arrest was pursuant to a valid warrantless arrest so that an inquest proceeding was called for
as a consequence. Thus, the R TC did not commit any grave abuse of discretion in denying the Urgent Motion
for Regular Preliminary Investigation.
The CA saw no merit in the petitioners' argument that the order denying the Urgent Motion for Regular
Preliminary Investigation is void for failure to clearly state the facts and the law upon which it was based,
pursuant to Rule 16, Section 3 of the Revised Rules of Court. The CA found that the RTC had sufficiently
explained the grounds for the denial of the motion.

The petitioners moved for reconsideration, but the CA denied the motion in its Resolution of April 17, 2008;18
hence, the present petition.

The Issues

The petitioners cited the following assignment of errors:

I.

WHETHER OR NOT THE PETITIONERS WERE VALIDLY ARRESTED WITHOUT A WARRANT.

II.

WHETHER OR NOT THE PETITIONERS WERE LAWFULLY ARRESTED WHEN THEY WERE
MERELY INVITED TO THE POLICE PRECINCT.

III.

WHETHER OR NOT THE ORDER DENYING THE MOTION FOR PRELIMINARY

INVESTIGATION IS VOID FOR FAILURE TO STATE THE FACTS AND THE LAW UPON WHICH
IT WAS BASED.

The petitioners primarily argue that they were not lawfully arrested. No arrest warrant was ever issued; they
went to the police station only as a response to the arresting officers' invitation. They even cited the Affidavit of
Arrest, which actually used the word "invited. "

The petitioners also claim that no valid warrantless arrest took place under the terms of Rule 112, Section 7 of
the Revised Rules of Court. The incident happened two (2) hours before the police officers actually arrived at the
crime scene. The police officers could not have undertaken a valid warrantless arrest as they had no personal
knowledge that the petitioners were the authors of the crime.

The petitioners additionally argue that the R TC' s Order denying the Urgent Motion for Regular Preliminary
Investigation is void because it was not properly issued.

The Court's Ruling

We find the petition unmeritorious and thus uphold the RTC Order. The criminal proceedings against the
petitioners should now proceed.

It is unfortunate that the kind of motion that the petitioners filed has to reach this Court for its resolution. The
thought is very tempting that the motion was employed simply to delay the proceedings and that the use of Rule
65 petition has been abused.

But accepting things as they are, this delay can be more than compensated by fully examining in this case the
legalities surrounding warrantless warrants and establishing the proper interpretation of the Rules for the
guidance of the bench and the bar. These Rules have evolved over time, and the present case presents to us the
opportunity to re-trace their origins, development and the current applicable interpretation.

I. Brief history on warrantless arrests

The organic laws of the Philippines, specifically, the Philippine Bill of 1902,19 and the 1935,20 197321 and
198722 Constitutions all protect the right of the people to be secure in their persons against unreasonable
searches and seizures. Arrest falls under the term "seizure. "23

This constitutional mandate is identical with the Fourth Amendment of the Constitution of the United States. The
Fourth Amendment traces its origins to the writings of Sir Edward Coke24 and The Great Charter of the
Liberties of England (Magna Carta Libertatum), sealed under oath by King John on the bank of the River
Thames near Windsor, England on June 15, 1215.25 The Magna Carta Libertatum limited the King of England's
powers and required the Crown to proclaim certain liberties26 under the feudal vassals' threat of civil war.27 The
declarations in Chapter 29 of the Magna Carta Libertatum later became the foundational component of the
Fourth Amendment of the United States Constitution.28 It provides:

No freeman shall be taken, or imprisoned, or be disseised29 of his Freehold, or Liberties, or free Customs, or be
outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful
Judgment of his Peers, or by the Law of the Land, We will sell to no man, we will not deny or defer to any man
either Justice or Right.30 [Emphasis supplied]

In United States v. Snyder,31 the United States Supreme Court held that this constitutional provision does not
prohibit arrests, searches and seizures without judicial warrant, but only those that are unreasonable. 32 With
regard to an arrest, it is considered a seizure, which must also satisfy the test of reasonableness.33

In our jurisdiction, early rulings of the Court have acknowledged the validity of warrantless arrests. The Court
based these rulings on the common law of America and England that, according to the Court, were not different
from the Spanish laws.34 These court rulings likewise justified warrantless arrests based on the provisions of
separate laws then existing in the Philippines.35

In 1905, the Court held in The United States v. Wilson36 that Section 3737 of Act No. 183, or the Charter of
Manila, defined the arresting officer's power to arrest without a warrant, at least insofar as the City of Manila
was concerned.

In The United States v. Vallejo, et al.,38 the Court held that in the absence of any provisions under statutes or
local ordinances, a police officer who held similar functions as those of the officers established under the
common law of England and America, also had the power to arrest without a warrant in the Philippines.

The Court also ruled in The United States v. Santos39 that the rules on warrantless arrest were based on common
sense and reason.40 It further held that warrantless arrest found support under the then Administrative Code41
which directed municipal policemen to exercise vigilance in the prevention of public offenses.

In The United States v. Fortaleza,42 the Court applied Rules 27, 28, 29 and 3043 of the Provisional Law for the
Application of the Penal Code which were provisions taken from the Spanish Law.

These rules were subsequently established and incorporated in our Rules of Court and jurisprudence. Presently,
the requirements of a warrantless arrest are now summarized in Rule 113, Section 5 which states that: Section 5.
Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a
person:
 (a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;

(b) When an offense has just been committed, and he has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it; and

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

In cases falling under paragraph (a) and (b) above, the person arrested without a warrant shall be forth with
delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule
112.

A warrantless arrest under the circumstances contemplated under Section 5(a) above has been denominated as
one "in flagrante delicto," while that under Section 5(b) has been described as a "hot pursuit" arrest.44

For purposes of this case, we shall focus on Section 5(b) – the provision applicable in the present case. This
provision has undergone changes through the years not just in its phraseology but also in its interpretation in our
jurisprudence.

We shall first trace the evolution of Section 5(b) and examine the applicable American and Philippine
jurisprudence to fully understand its roots and its appropriate present application.

II. Evolution of Section 5(b), Rule 113

A. Prior to the 1940 Rules of Court

Prior to 1940, the Court based its rulings not just on American and English common law principle on warrantless
arrests but also on laws then existing in the Philippines. In Fortaleza,45 the Court cited Rule 28 of the
Provisional Law for the Application of the Penal Code which provided that:

Judicial and administrative authorities have power to detain, or to cause to be detained, persons whom there is
reasonable ground to believe guilty of some offense. It will be the duty of the authorities, as well as of their
agents, to arrest:

First. Such persons as may be arrested under the provisions of rule 27.

Second. A person charged with a crime for which the code provides a penalty greater than that of confinamiento.

Third. A person charged with a crime for which the code provides a penalty less than that of confinamiento, if his
antecedents or the circumstances of the case would warrant the presumption that he would fail to appear when
summoned by the judicial authorities.

The provisions of the preceding paragraph shall not apply, however, to a defendant who gives sufficient bond, to
the satisfaction of the authority or agent who may arrest him, and who it may reasonably be presumed will
appear whenever summoned by the judge or court competent to try him.

Fourth. A person coining under the provisions of the preceding paragraph may be arrested, although no formal
complaint has been filed against him, provided the following circumstances are present:
First. That the authority or agent had reasonable cause to believe that an unlawful act, amounting to a crime had
been committed.

Second. That the authority or agent had sufficient reason to believe that the person arrested participated in the
commission of such unlawful act or crime." [Emphasis and underscoring supplied]

In the same decision, the Court likewise cited Section 3 7 of the Charter of Manila, which provided that certain
officials, including police officers may, within the territory defined in the law, pursue and arrest without warrant,
any person found in suspicious places or under suspicious circumstances, reasonably tending to show that such
person has committed, or is about to commit any crime or breach of the peace.

In Santos,46 the Court cited Miles v. Weston,47 which ruled that a peace officer may arrest persons walking in
the street at night when there is reasonable ground to suspect the commission of a crime, although there is no
proof of a felony having been committed.

The Court ruled in Santos that the arresting officer must justify that there was a probable cause for an arrest
without a warrant. The Court defined probable cause as a reasonable ground of suspicion, supported by
circumstances sufficiently strong in themselves as to warrant a reasonable man in believing that the accused is
guilty. Besides reasonable ground of suspicion, action in good faith is another requirement. Once these
conditions are complied with, the peace officer is not liable even if the arrested person turned out to be innocent.

Based on these discussions, it appears clear that prior to the 1940 Rules of Court, it was not necessary for the
arresting officer to first have knowledge that a crime was actually committed. What was necessary was the
presence of reasonably sufficient grounds to believe the existence of an act having the characteristics of a crime;
and that the same grounds exist to believe that the person sought to be detained participated in it. In addition, it
was also established under the old court rulings that the phrase "reasonable suspicion" was tantamount to
probable cause without which, the warrantless arrest would be invalid and the arresting officer may be held
liable for its breach.48

In The US. v. Hachaw,49 the Court invalidated the warrantless arrest of a Chinaman because the arresting person
did not state in what way the Chinaman was acting suspiciously or the particular act or circumstance which
aroused the arresting person's curiosity.

It appears, therefore, that prior to the establishment in our Rules of Court of the rules on warrantless arrests, the
gauge for a valid warrantless arrest was the arresting officer's reasonable suspicion (probable cause) that a crime
was committed and the person sought to be arrested has participated in its commission. This principle left so
much discretion and leeway on the part of the arresting officer. However, the 1940 Rules of Court has limited
this discretion.

B. The 1940 Rules of Court

(Restricting the arresting
officer's determination of
probable cause)

Rules 27 and 28 of the Provisional Law for the Application of the Penal Code were substantially incorporated in
Section 6, Rule 109 of the 1940 Rules of Court as follows:50

SEC. 6. Arrest without warrant - When lawful. - A peace officer or a private person may, without a warrant,
arrest a person:
 (a) When the person to be arrested has committed, is actually committing, or is about to commit an
offense in his presence;

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

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

These provisions were adopted in toto in Section 6, Rule 113 of the 1964 Rules of Court. Notably, the 1940 and
1964 Rules have deviated from the old rulings of the Court. Prior to the 1940 Rules, the actual commission of
the offense was not necessary in determining the validity of the warrantless arrest. Too, the arresting officer's
determination of probable cause (or reasonable suspicion) applied both as to whether a crime has been
committed and whether the person to be arrested has committed it.

However, under the 1940 and the 1964 Rules of Court, the Rules required that there should be actual
commission of an offense, thus, removing the element of the arresting officer's "reasonable suspicion of the
commission of an offense." Additionally, the determination of probable cause, or reasonable suspicion, was
limited only to the determination of whether the person to be arrested has committed the offense. In other words,
the 1940 and 1964 Rules of Court restricted the arresting officer's discretion in warrantless arrests under Section
6(b), Rule 113 of the 1964 Rules of Court.

C. The more restrictive 1985 Rules of Criminal Procedure

Section 6, Rule 113 of the 1964 Rules of Court again underwent substantial changes and was re-worded and re-
numbered when it became Section 5, Rule 113 of the 1985 Rules of Criminal Procedure, to wit:

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

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

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

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place
where he is serving final judgment or temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b)
hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or
jail, and he shall be proceeded against in accordance with Rule 112, Section 7. [Emphasis and
underscoring supplied]

As amended, Section 5(b ), Rule 113 of the 1985 Rules of Court retained the restrictions introduced under the
1964 Rules of Court. More importantly, however, it added a qualification that the commission of the offense
should not only have been "committed" but should have been "just committed." This limited the arresting
officer's time frame for conducting an investigation for purposes of gathering information indicating that the
person sought to be arrested has committed the crime.

D. The Present Revised Rules of Criminal Procedure

Section 5(b ), Rule 113 of the 1985 Rules of Criminal Procedure was further amended with the incorporation of
the word "probable cause" as the basis of the arresting officer's determination on whether the person to be
arrested has committed the crime.

Hence, as presently worded, Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure provides that:

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.

From the current phraseology of the rules on warrantless arrest, it appears that for purposes of Section S(b ), the
following are the notable changes: first, the contemplated offense was qualified by the word "just," connoting
immediacy; and second, the warrantless arrest of a person sought to be arrested should be based on probable
cause to be determined by the arresting officer based on his personal knowledge of facts and circumstances that
the person to be arrested has committed it.

It is clear that the present rules have "objectified" the previously subjective determination of the arresting officer
as to the (1) commission of the crime; and (2) whether the person sought to be arrested committed the crime.
According to Feria, these changes were adopted to minimize arrests based on mere suspicion or hearsay.51

As presently worded, the elements under Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure are:
first, an offense has just been committed; and second, the arresting officer has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it.

For purposes of this case, we shall discuss these elements separately below, starting with the element of probable
cause, followed by the elements that the offense has just been committed, and the arresting officer's personal
knowledge of facts or circumstances that the person to be arrested has committed the crime.

i) First Element of Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure: Probable cause

The existence of "probable cause" is now the "objectifier" or the determinant on how the arresting officer shall
proceed on the facts and circumstances, within his personal knowledge, for purposes of determining whether the
person to be arrested has committed the crime.

i.a) U.S. jurisprudence on probable cause in warrantless arrests

In Payton v. New York,52 the U.S. Supreme Court held that the Fourth Amendment of the Federal Constitution
does not prohibit arrests without a warrant although such arrests must be reasonable. According to State v.
Quinn,53 the warrantless arrest of a person who was discovered in the act of violating the law is not a violation
of due process.

The U.S. Supreme Court, however indicated in Henry v. United States54 that the Fourth Amendment limited the
circumstances under which warrantless arrests may be made. The necessary inquiry is not whether there was a
warrant or whether there was time to get one, but whether at the time of the arrest probable cause existed. The
term probable cause is synonymous to "reasonable cause" and "reasonable grounds."55

In determining the existence of probable cause, the arresting officer should make a thorough investigation and
exercise reasonable judgment. The standards for evaluating the factual basis supporting a probable cause
assessment are not less stringent in warrantless arrest situation than in a case where a warrant is sought from a
judicial officer. The probable cause determination of a warrantless arrest is based on information that the
arresting officer possesses at the time of the arrest and not on the information acquired later.56
In evaluating probable cause, probability and not certainty is the determinant of reasonableness under the Fourth
Amendment. Probable cause involves probabilities similar to the factual and practical questions of everyday life
upon which reasonable and prudent persons act. It is a pragmatic question to be determined in each case in light
of the particular circumstances and the particular offense involved.57

In determining probable cause, the arresting officer may rely on all the information in his possession, his fair
inferences therefrom, including his observations. Mere suspicion does not meet the requirements of showing
probable cause to arrest without warrant especially if it is a mere general suspicion. Probable cause may rest on
reasonably trustworthy information as well as personal knowledge. Thus, the arresting officer may rely on
information supplied by a witness or a victim of a crime; and under the circumstances, the arresting officer need
not verify such information.58

In our jurisdiction, the Court has likewise defined probable cause in the context of Section 5(b), Rule 113 of the
Revised Rules of Criminal Procedure.

In Abelita Ill v. Doria et al.,59 the Court held that personal knowledge of facts must be based on probable cause,
which 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.

i.b) Probable cause under Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure, distinguished from
probable cause in preliminary investigations and the judicial proceeding for the issuance of a warrant of arrest

The purpose of a preliminary investigation is to determine whether a crime has been committed and whether
there is probable cause to believe that the accused is guilty of the crime and should be held for triat. 60 In
Buchanan v. Viuda de Esteban,61 we defined probable cause as the existence of facts and circumstances as
would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the
person charged was guilty of the crime for which he was prosecuted.

In this particular proceeding, the finding of the existence of probable cause as to the guilt of the respondent was
based on the submitted documents of the complainant, the respondent and his witnesses.62

On the other hand, probable cause in judicial proceedings for the issuance of a warrant of arrest is defined as the
existence of such facts and circumstances that would lead a reasonably discreet and prudent person to believe
that an offense has been committed by the person sought to be arrested.

Hence, before issuing a warrant of arrest, the judge must be satisfied that based on the evidence submitted, there
is sufficient proof that a crime has been committed and that the person to be arrested is probably guilty thereof.
At this stage of the criminal proceeding, the judge is not yet tasked to review in detail the evidence submitted
during the preliminary investigation. It is sufficient that he personally evaluates the evidence in determining
probable cause63 to issue a warrant of arrest.

In contrast, the arresting officer's determination of probable cause under Section 5(b), Rule 113 of the Revised
Rules of Criminal Procedure is based on his personal knowledge of facts or circumstances that the person sought
to be arrested has committed the crime. These facts or circumstances pertain to actual facts or raw evidence, 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.
The probable cause to justify warrantless arrest ordinarily signifies a reasonable ground of suspicion supported
by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person accused
is guilty of the offense with which he is charged,64 or an actual belief or reasonable ground of suspicion, based
on actual facts.65

It is clear therefore that the standard for determining "probable cause" is invariable for the officer arresting
without a warrant, the public prosecutor, and the judge issuing a warrant of arrest. It is the existence of such facts
and circumstances that would lead a reasonably discreet and prudent person to believe that an offense has been
committed by the person sought to be arrested or held for trial, as the case may be.

However, while the arresting officer, the public prosecutor and the judge all determine "probable cause," within
the spheres of their respective functions, its existence is influenced heavily by the available facts and
circumstance within their possession. In short, although these officers use the same standard of a reasonable
man, they possess dissimilar quantity of facts or circumstances, as set by the rules, upon which they must
determine probable cause.

Thus, under the present rules and jurisprudence, the arresting officer should base his determination of probable
cause on his personal knowledge of facts and circumstances that the person sought to be arrested has committed
the crime; the public prosecutor and the judge must base their determination on the evidence submitted by the
parties.

In other words, the arresting officer operates on the basis of more limited facts, evidence or available
information that he must personally gather within a limited time frame.

Hence, in Santos,66 the Court acknowledged the inherent limitations of determining probable cause in
warrantless arrests due to the urgency of its determination in these instances. The Court held that one should not
expect too much of an ordinary policeman. He is not presumed to exercise the subtle reasoning of a judicial
officer. Oftentimes, he has no opportunity to make proper investigation but must act in haste on his own belief to
prevent the escape of the criminal.67

ii) Second and Third Elements of Section 5(b), Rule 113:

The crime has just been committed/personal
knowledge of facts or circumstances that the person
to be arrested has committed it

We deem it necessary to combine the discussions of these two elements as our jurisprudence shows that these
were usually taken together in the Court's determination of the validity of the warrantless arrests that were made
pursuant to Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure.

In Posadas v. Ombudsman,68 the killing of Dennis Venturina happened on December 8, 1994. It was only on
December 11, 1994 that Chancellor Posadas requested the NBI's assistance. On the basis of the supposed
identification of two (2) witnesses, the NBI attempted to arrest Francis Carlo Taparan and Raymundo Narag
three (3) days after the commission of the crime. With this set of facts, it cannot be said that the officers have
personal knowledge of facts or circumstances that the persons sought to be arrested committed the crime. Hence,
the Court invalidated the warrantless arrest.

Similarly, in People v. Burgos,69 one Cesar Masamlok personally and voluntarily surrendered to the authorities,
stating that Ruben Burgos forcibly recruited him to become a member of the NPA, with a threat of physical
harm. Upon receipt of this information, a joint team of PC-INP units was dispatched to arrest Burgos who was
then plowing the field. Indeed, the arrest was invalid considering that the only information that the police
officers had in effecting the arrest was the information from a third person. It cannot be also said in this case that
there was certainty as regards the commission of a crime.

In People v. del Rosario,70 the Court held that the requirement that an offense has just been committed means
that there must be a large measure of immediacy between the time the offense was committed and the time of the
arrest. If there was an appreciable lapse of time between the arrest and the commission of the crime, a warrant of
arrest must be secured.

The Court held that the arrest of del Rosario did not comply with these requirements because he was arrested
only a day after the commission of the crime and not immediately thereafter. Additionally, the arresting officers
were not present and were not actual eyewitnesses to the crime. Hence, they had no personal knowledge of facts
indicating that the person to be arrested had committed the offense. They became aware of del Rosario's identity
as the driver of the getaway tricycle only during the custodial investigation.

In People v. Cendana,71 the accused was arrested one (1) day after the killing of the victim and only on the basis
of information obtained from unnamed sources. The unlawful arrest was held invalid.

In Rolito Go v. CA,72 the arrest of the accused six ( 6) days after the commission of the crime was held invalid
because the crime had not just been committed. Moreover, the "arresting" officers had no "personal knowledge"
of facts indicating that the accused was the gunman who had shot the victim. The information upon which the
police acted came from statements made by alleged eyewitnesses to the shooting; one stated that the accused was
the gunman; another was able to take down the alleged gunman's car's plate number which turned out to be
registered in the name of the accused's wife. That information did not constitute "personal knowledge."

In People v. Tonog, Jr.,73 the warrantless arrest which was done on the same day was held valid. In this case, the
arresting officer had knowledge of facts which he personally gathered in the course of his investigation,
indicating that the accused was one of the perpetrators.

In People v. Gerente,74 the policemen arrested Gerente only about three (3) hours after Gerente and his
companions had killed the victim. The Court held that the policemen had personal knowledge of the violent
death of the victim and of facts indicating that Gerente and two others had killed him. The warrantless arrest was
held valid.

In People v. Alvario,75 the warrantless arrest came immediately after the arresting officers received information
from the victim of the crime. The Court held that the personal knowledge of the arresting officers was derived
from the information supplied by the victim herself who pointed to Alvario as the man who raped her at the time
of his arrest. The Court upheld the warrantless arrest. In People v. Jayson,76 there was a shooting incident. The
policemen who were summoned to the scene of the crime found the victim. The informants pointed to the
accused as the assailant only moments after the shooting. The Court held that the arresting officers acted on the
basis of personal knowledge of the death of the victim and of facts indicating that the accused was the assailant.
Thus, the warrantless arrest was held valid.

In People v. Acol,77 a group held up the passengers in a jeepney and the policemen immediately responded to
the report of the crime. One of the victims saw four persons walking towards Fort Bonifacio, one of whom was
wearing his jacket. The victim pointed them to the policemen. When the group saw the policemen coming, they
ran in different directions. The Court held that the arrest was valid.

In Cadua v. CA,78 there was an initial report to the police concerning a robbery. A radio dispatch was then given
to the arresting officers, who proceeded to Alden Street to verify the authenticity of the radio message. When
they reached the place, they met with the complainants who initiated the report about the robbery. Upon the
officers' invitation, the victims joined them in conducting a search of the nearby area where the accused was
spotted in the vicinity. Based on the reported statements of the complainants, he was identified as a logical
suspect in the offense just committed. Hence, the arrest was held valid.

In Doria,79 the Court held that Section S(b ), Rule 113 of the 1985 Rules of Criminal Procedure does not require
the arresting officers to personally witness the commission of the offense.

In this case, P/Supt. Doria alleged that his office received a telephone call from a relative of Rosa Sia about a
shooting incident. He dispatched a team headed by SP03 Ramirez to investigate the incident. SP03 Ramirez later
reported that a certain William Sia was wounded while Judge Abelita III, who was implicated in the incident, and
his wife just left the place of the incident. P/Supt. Doria looked for Abelita III and when he found him, he
informed him of the incident report. P/Supt. Doria requested Abelita III to go with him to the police headquarters
as he had been reported to be involved in the incident. Abelita III agreed but suddenly sped up his vehicle and
proceeded to his residence where P/Supt. Doria caught him up as he was about to run towards his house.

The police officers saw a gun in the front seat of the vehicle beside the driver's seat as Abelita III opened the
door. They also saw a shotgun at the back of the driver's seat. The police officers confiscated the firearms and
arrested Abelita III. The Court held that the petitioner's act of trying to get away, coupled with the incident report
which they investigated, were enough to raise a reasonable suspicion on the part of the police authorities as to
the existence of probable cause. Based on these discussions, it appears that the Court's appreciation of the
elements that "the offense has just been committed" and ''personal knowledge of facts and circumstances that the
person to be arrested committed it" depended on the particular circumstances of the case. However, we note that
the element of ''personal knowledge of facts or circumstances" under Section S(b ), Rule 113 of the Revised
Rules of Criminal Procedure requires clarification.

The phrase covers facts or, in the alternative, circumstances. According to the Black's Law Dictionary, 80
"circumstances are attendant or accompanying facts, events or conditions. " Circumstances may pertain to events
or actions within the actual perception, personal evaluation or observation of the police officer at the scene of the
crime. Thus, even though the police officer has not seen someone actually fleeing, he could still make a
warrantless arrest if, based on his personal evaluation of the circumstances at the scene of the crime, he could
determine the existence of probable cause that the person sought to be arrested has committed the crime.
However, the determination of probable cause and the gathering of facts or circumstances should be made
immediately after the commission of the crime in order to comply with the element of immediacy.

In other words, the clincher in the element of ''personal knowledge of facts or circumstances" is the required
element of immediacy within which these facts or circumstances should be gathered. This required time element
acts as a safeguard to ensure that the police officers have gathered the facts or perceived the circumstances
within a very limited time frame. This guarantees that the police officers would have no time to base their
probable cause finding on facts or circumstances obtained after an exhaustive investigation.

The reason for the element of the immediacy is this - as the time gap from the commission of the crime to the
arrest widens, the pieces of information gathered are prone to become contaminated and subjected to external
factors, interpretations and hearsay. On the other hand, with the element of immediacy imposed under Section
5(b), Rule 113 of the Revised Rules of Criminal Procedure, the police officer's determination of probable cause
would necessarily be limited to raw or uncontaminated facts or circumstances, gathered as they were within a
very limited period of time. The same provision adds another safeguard with the requirement of probable cause
as the standard for evaluating these facts of circumstances before the police officer could effect a valid
warrantless arrest.

In light of the discussion above on the developments of Section 5(b), Rule 113 of the Revised Rules of Criminal
Procedure and our jurisprudence on the matter, we hold that the following must be present for a valid warrantless
arrest: 1) the crime should have been just committed; and 2) the arresting officer's exercise of discretion is
limited by the standard of probable cause to be determined from the facts and circumstances within his personal
knowledge. The requirement of the existence of probable cause objectifies the reasonableness of the warrantless
arrest for purposes of compliance with the Constitutional mandate against unreasonable arrests.

Hence, for purposes of resolving the issue on the validity of the warrantless arrest of the present petitioners, the
question to be resolved is whether the requirements for a valid warrantless arrest under Section 5(b), Rule 113 of
the Revised Rules of Criminal Procedure were complied with, namely: 1) has the crime just been committed
when they were arrested? 2) did the arresting officer have personal knowledge of facts and circumstances that
the petitioners committed the crime? and 3) based on these facts and circumstances that the arresting officer
possessed at the time of the petitioners' arrest, would a reasonably discreet and prudent person believe that the
attempted murder of Atty. Generoso was committed by the petitioners? We rule in the affirmative.

III. Application of Section S(b), Rule 113 of the Revised Rules

of Criminal Procedure in the present case: there was a
valid warrantless arrest

We deem it necessary to review the records of the CA because it has misapprehended the facts in its decision. 81
From a review of the records, we conclude that the police officers had personal knowledge of facts or
circumstances upon which they had properly determined probable cause in effecting a warrantless arrest against
the petitioners. We note, however, that the determination of the facts in the present case is purely limited to the
resolution of the issue on the validity of the warrantless arrests of the petitioners.

Based on the police blotter82 entry taken at 4:15 a.m. on February 20, 2005, the date that the alleged crime was
committed, the petitioners were brought in for investigation at the Batasan Hills Police Station. The police
blotter stated that the alleged crime was committed at 3:15 a.m. on February 20, 2005, along Kasiyahan St.,
Brgy. Holy Spirit, Quezon City.

The time of the entry of the complaint in the police blotter at 4:15 a.m., with Atty. Generoso and the petitioners
already inside the police station, would connote that the arrest took place less than one hour from the time of the
occurrence of the crime. Hence, the CA finding that the arrest took place two (2) hours after the commission of
the crime is unfounded.

The arresting officers' personal observation of Atty. Generoso's bruises when they arrived at the scene of the
crime is corroborated by the petitioners' admissions that Atty: Generoso indeed suffered blows from petitioner
Macapanas and his brother Joseph Macapanas,83 although they asserted that they did it in self-defense against
Atty. Generoso.

Atty. Generoso's bruises were also corroborated by the Medico-Legal Certificate84 that was issued by East
Avenue Medical Center on the same date of the alleged mauling. The medical check-up of Atty. Generoso that
was made about 8:10 a.m. on the date of the incident, showed the following findings: "Contusion Hematoma,
Left Frontal Area; Abrasion, T6 area, right midclavicular line periorbital hematoma, left eye; Abrasion, distal 3rd
posterolateral aspect of right forearm; Abrasion, 4th and fifth digit, right hand; Abrasion on area of ih rib (L ant.
Chest wall), tenderness on L peripheral area, no visible abrasion. In addition, the attending physician, Dr. Eva P.
Javier, diagnosed Atty. Generoso of contusion hematoma, periorbital L., and traumatic conjunctivitis, o.s.

To summarize, the arresting officers went to the scene of the crime upon the complaint of Atty. Generoso of his
alleged mauling; the police officers responded to the scene of the crime less than one (1) hour after the alleged
mauling; the alleged crime transpired in a community where Atty. Generoso and the petitioners reside; Atty.
Generoso positively identified the petitioners as those responsible for his mauling and, notably, the petitioners85
and Atty. Generoso86 lived almost in the same neighborhood; more importantly, when the petitioners were
confronted by the arresting officers, they did not deny their participation in the incident with Atty. Generoso,
although they narrated a different version of what transpired.87
With these facts and circumstances that the police officers gathered and which they have personally observed
less than one hour from the time that they have arrived at the scene of the crime until the time of the arrest of the
petitioners, we deem it reasonable to conclude that the police officers had personal knowledge of facts or
circumstances justifying the petitioners' warrantless arrests. These circumstances were well within the police
officers' observation, perception and evaluation at the time of the arrest. These circumstances qualify as the
police officers' personal observation, which are within their personal knowledge, prompting them to make the
warrantless arrests.

Similar to the factual antecedents in Jayson,88 the police officers in the present case saw Atty. Generoso in his
sorry bloodied state. As the victim, he positively identified the petitioners as the persons who mauled him;
however, instead of fleeing like what happened in Jayson, the petitioners agreed to go with the police officers.

This is also similar to what happened in People v. Tonog, Jr.89 where Tonog did not flee but voluntarily went
with the police officers. More than this, the petitioners in the present case even admitted to have been involved
in the incident with Atty. Generoso, although they had another version of what transpired.

In determining the reasonableness of the warrantless arrests, it is incumbent upon the courts to consider if the
police officers have complied with the requirements set under Section 5(b), Rule 113 of the Revised Rules of
Criminal Procedure, specifically, the requirement of immediacy; the police officer's personal knowledge of facts
or circumstances; and lastly, the propriety of the determination of probable cause that the person sought to be
arrested committed the crime.

The records show that soon after the report of the incident occurred, SPOl Monsalve immediately dispatched the
arresting officer, SP02 Javier, to render personal assistance to the victim.90 This fact alone negates the
petitioners' argument that the police officers did not have personal knowledge that a crime had been committed -
the police immediately responded and had personal knowledge that a crime had been committed.1âwphi1

To reiterate, personal knowledge of a crime just committed under the terms of the above-cited provision, does
not require actual presence at the scene while a crime was being committed; it is enough that evidence of the
recent commission of the crime is patent (as in this case) and the police officer has probable cause to believe
based on personal knowledge of facts or circumstances, that the person to be arrested has recently committed the
crime.

Considering the circumstances of the stabbing, particularly the locality where it took place, its occasion, the
personal circumstances of the parties, and the immediate on-the-spot investigation that took place, the immediate
and warrantless arrests of the perpetrators were proper. Consequently, the inquest proceeding that the City
Prosecutor conducted was appropriate under the circumstances.

IV. The term "invited" in the Affidavit of Arrest is construed to

mean as an authoritative command

After the resolution of the validity of the warrantless arrest, the discussion of the petitioners' second issue is
largely academic. Arrest is defined as the taking of a person into custody in order that he may be bound to
answer for the commission of an offense. An arrest is made by an actual restraint of the person to be arrested, or
by his submission to the custody of the person making the arrest.91 Thus, application of actual force, manual
touching of the body, physical restraint or a formal declaration of arrest is not required. It is enough that there be
an intention on the part of one of the parties to arrest the other and the intent of the other to submit, under the
belief and impression that submission is necessary.92

Notwithstanding the term "invited" in the Affidavit of Arrest,93 SP02 Javier could not but have the intention of
arresting the petitioners following Atty. Generoso' s account. SP02 Javier did not need to apply violent physical
restraint when a simple directive to the petitioners to follow him to the police station would produce a similar
effect. In other words, the application of actual force would only be an alternative if the petitioners had exhibited
resistance.

To be sure, after a crime had just been committed and the attending policemen have acquired personal
knowledge of the incidents of the crime, including the alleged perpetrators, the arrest of the petitioners as the
perpetrators pointed to by the victim, was not a mere random act but was in connection with a particular offense.
Furthermore, SP02 Javier had informed the petitioners, at the time of their arrest, of the charges against them
before taking them to Batasan Hills Police Station for investigation.94

V. The Order denying the motion for preliminary

investigation is valid

In their last ditch attempt at avoidance, the petitioners attack the R TC Order denying the petitioners' urgent
motion for regular preliminary investigation for allegedly having been issued in violation of Article VIII, Section
14 of the 1987 Constitution95 and Rule 16, Section 3 of the Revised Rules of Court.96

The RTC, in its Order dismissing the motion, clearly states that the Court is not persuaded by the evidentiary
nature of the allegations in the said motion of the accused. Aside from lack of clear and convincing proof, the
Court, in the exercise of its sound discretion on the matter, is legally bound to pursue and hereby gives
preference to the speedy disposition of the case."

We do not see any taint of impropriety or grave abuse of discretion in this Order. The RTC, in resolving the
motion, is not required to state all the facts found in the record of the case. Detailed evidentiary matters, as the
RTC decreed, is best reserved for the full-blown trial of the case, not in the preliminary incidents leading up to
the trial.

Additionally, no less than the Constitution itself provides that it is the decision that should state clearly and
distinctly the facts and the law on which it is based. In resolving a motion, the court is only required to state
clearly and distinctly the reasons therefor. A contrary system would only prolong the proceedings, which was
precisely what happened to this case. Hence, we uphold the validity of the RTC's order as it correctly stated the
reason for its denial of the petitioners' Urgent Motion for Regular Preliminary Investigation. WHEREFORE,
premises considered, we hereby DENY the petition, and hereby AFFIRM the decision dated January 21, 2008
and the resolution dated April 17, 2008 of the Court of Appeals in CA-G.R. SP No. 91541. The City Prosecutor
of Quezon City is hereby ORDERED to proceed with the criminal proceedings against the petitioners.

SO ORDERED.
G.R. No. 199042 November 17, 2014

DANILO VILLANUEVA y ALCARAZ, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

SERENO, CJ:

We resolve the Petition1 filed by Danilo Villanueva y Alcaraz from the Decision2 dated 4 May 2011 and
Resolution3 dated 18 October 2011 issued by the Fourteenth Division of the Court of Appeals (CA) in CA-G.R.
C.R. No. 32582.

THE ANTECEDENT FACTS

Petitioner Danilo Villanueva was charged with violation of Section 11, Article II of Republic Act (R.A.) No.
9165 or The Comprehensive Dangerous Drugs Act of 2002. The Information4 reads:

That on or about the 15th day of June 2004 in Caloocan City, Metro Manila, and within the jurisdiction of this
Honorable Court, the above named accused, without being authorized by law, did then and there, willfully,
unlawfully and feloniously have in his possession, custody and control METHAMPHETAMINE
HYDROCHLORIDE (Shabu) weighing 0.63 gram knowing the same to [be a] dangerous drug under the
provisions of the above-cited law.

CONTRARY TO LAW.

On 15 July 2004, the accused, duly assisted by counsel de oficio, pleaded not guilty to the offense charged.5

PROSECUTION’S VERSION

Four witnesses testified for the prosecution: (1) Police Senior Inspector (PSI) Albert Arturo, (2) Police Officer
(PO) 3 Jonathan Coralde, (3) PO2 Reynante Mananghaya, and (4) Senior Police Officer 1 (SPO1) Antonio
Asiones.6 Their testimonies reveal that a Complaint was filed by Brian Resco against Danilo Villanueva for
allegedly shooting the former along C-3 Road, Navotas City. After recording the incident in the police blotter,
PO3 Jonathan Coralde, SPO3 Enrique de Jesus, SPO2 Henry Martin and SPO1 Anthony Asiones, together with
Resco, proceeded to the house of Villanueva. They informed Villanueva about the Complaint lodged against him.
They invited him to the police station. There, he was subjected to a body search and, in the process, a plastic
sachet of shabu was recovered from the left pocket of his pants. PO3 Coralde marked the sachet with the initial
"DAV 06-15-04", and PO2 Reynante Mananghaya brought it to the National Police District Scene of the Crime
Operatives (NPD-SOCO) for examination.7 DEFENSE’S VERSION

The accused testified that at the time of the incident, he was at home watching TV when PO3 Coralde, along
with three others, invited him to go with them to the police station. Informed that he had been identified as
responsible for shooting Resco, the accused was then frisked and detained at the police station.8

RULING OF THE RTC

The Regional Trial Court (RTC) Branch 127 of Caloocan City, in its Decision9 dated 6 April 2009, convicted
petitioner of the offense charged. The dispositive portion of the Decision reads:

WHEREFORE, premises considered, judgment is hereby rendered declaring accused DANILO VILLANUEVA
y ALCARAZ, GUILTY BEYOND REASONABLE DOUBT of the offense of Violation of Section 11, Article
II,R.A. 9165. Henceforth, this Court hereby sentences him to suffer an imprisonment of twelve (12) years and
one (1) day as the minimum to seventeen (17) years and eight (8) months as the maximum and to pay the fine of
Three Hundred Thousand Pesos (₱300,000.00).

The drugs subject matter of this case is ordered confiscated and forfeited in favor of the government to be dealt
with in accordance with the law.

SO ORDERED.10

The CA reviewed the appeal, which hinged on one issue, viz:

THE COURT A QUOGRAVELY ERRED IN NOT FINDING AS ILLEGAL THE ACCUSED-APPELLANT’S

WARRANTLESS ARREST AND SEARCH.11

RULING OF THE CA

On 4 May 2011, the CA affirmed the ruling of the lower court:

WHEREFORE, the appealed Decision dated April 6, 2009 of the Regional Trial Court, Branch 127, Caloocan
City in Criminal Case No. 70854 finding the accused-appellant guilty beyond reasonable doubt is hereby
AFFIRMED.

SO ORDERED.12

On 27 May 2011, petitioner filed a Motion for Reconsideration,13 which the CA denied in a Resolution14 dated
18 October 2011.

Hence, the instant Petition, which revolves around the following lone issue:

WHETHER THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE PETITIONER’S

CONVICTION FOR VIOLATION OF SECTION 11 OF REPUBLIC ACT NO. 9165 DESPITE THE
ILLEGALITY OF THE ARREST AND THE LAPSES ON THE PART OF THE POLICE OFFICERS IN THE
HANDLING OF THE CONFISCATED DRUG.15

Petitioner claims that his arrest does not fall within the purview of valid warrantless arrests, since it took place
on the day of the alleged shooting incident. Hence, to "invite" him to the precinct without any warrant of arrest
was illegal. The evidence obtained is, consequently, inadmissible. The Office of the Solicitor General filed its
Comment16 stating that the shabu confiscated from petitioner was admissible in evidence against him; that the
search conducted on him was valid; and that he cannot raise the issue regarding the apprehending officers’ non-
compliance with Section 21, Article II of R.A. 9165 for the first time on appeal.

OUR RULING

We find the instant appeal meritorious.

Accused-appellant is estopped from questioning the legality of his arrest.

Accused-appellant was arrested without a warrant. Section 5, Rule 113 of the Revised Rules of Criminal
Procedure, lays down the basic rules on lawful warrantless arrests either by a peace officer or a private person, as
follows:

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

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

(b) When an offense has just been committed and he has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it; and

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

The circumstances that transpired between accused-appellant and the arresting officer show none of the above
that would make the warrantless arrest lawful. Nevertheless, records reveal that accused-appellant never objected
to the irregularity of his arrest before his arraignment. He pleaded not guilty upon arraignment. He actively
participated in the trial of the case. Thus, he is considered as one who had properly and voluntarily submitted
himself to the jurisdiction of the trial court and waived his right to question the validity of his arrest.17

The warrantless search conducted is not among those allowed by law.

A waiver of an illegal arrest, however, is not a waiver of an illegal search.18 Records have established that both
the arrest and the search were made without a warrant. While the accused has already waived his right to contest
the legality of his arrest, he is not deemed to have equally waived his right to contest the legality of the search.

Jurisprudence is replete with pronouncements on when a warrantless search can be conducted. 1âwphi1 These
searches include: (1) search of a moving vehicle; (2) seizure in plain view; (3) customs search; (4) waiver or
consented search; (5) stop-and-frisk situation; (6) search incidental to a lawful arrest and (7) exigent and
emergency circumstance.19

The search made was not among the enumerated instances. Certainly, it was not of a moving vehicle, a customs
search, or a search incidental to a lawful arrest. There could not have been a seizure in plain view as the seized
item was allegedly found inside the left pocket of accused-appellant’s pants. Neither was it a stop-and-frisk
situation. While thistype may seemingly fall under the consented search exception, we reiterate that "[c]onsent to
a search is not to be lightly inferred, but shown by clear and convincing evidence."20

Consent must also be voluntary inorder to validate an otherwise illegal search; that is, the consent mustbe
unequivocal, specific, intelligently given, and uncontaminated by any duress or coercion.21 In this case,
petitioner was merely "ordered" to take out the contents of his pocket. The testimony of the police officer on the
matter is clear:

Q: And what did you do when you frisked a small plastic sachet?

A: When I felt something inside his pocket, I ordered him to bring out the thing which I felt.
Q. : And what did Danilo Villanueva do when you instructed him to bring out the contents of his pocket?

A: He took out the contents of his pocket and I saw the plastic containing shabu.22

The evidence obtained is not admissible.

Having been obtained through an unlawful search, the seized item is thus inadmissible in evidence against
accused-appellant. Obviously, this is an instance of seizure of the "fruit of the poisonous tree." Hence, the
confiscated item is inadmissible in evidence consonant with Article III, Section 3(2) of the 1987 Constitution:
"Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any
proceeding."23 Without the seized item, therefore, the conviction of accused appellant cannot be sustained. This
being the case, we see no more reason to discuss the alleged lapses of the officers in the handling of the
confiscated drug.

As a final word, we reiterate that "[ w ]hile this Court appreciates and encourages the efforts of law enforcers to
uphold the law and to preserve the peace and security of society, we nevertheless admonish them to act with ·
deliberate care and within the parameters set by the Constitution and the law. Truly, the end never justifies the
means."24

WHEREFORE, premises considered, the assailed Decision dated 4 May 2011 and Resolution dated 18 October
2011 issued by the Fourteenth Division of the Court of Appeals in CA-G.R. C.R. No. 32582 are SET ASIDE.
Petitioner is hereby ACQUITTED.

SO ORDERED.