cases_search incident to a valid arrest

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Republic of the PhilippinesSupreme CourtManila

THIRD DIVISION

RUBEN DEL CASTILLO @ BOY CASTILLO,

Petitioner,- versus -PEOPLE OF THE PHILIPPINES,

Respondent.

G.R. No. 185128[Formerly UDK No. 13980]

Promulgated:

January 30, 2012x-----------------------------------------------------------------------------------------x

D E C I S I O N

PERALTA, J.:

For this Court's consideration is the Petition for Review[1] on Certiorari under Rule 45 of Ruben del Castillo assailing the Decision[2] dated July 31,2006 and Resolution[3] dated December 13, 2007 of the Court of Appeals (CA) in CA-G.R. CR No. 27819, which affirmed the Decision[4]dated March 14, 2003 of the Regional Trial Court (RTC), Branch 12, Cebu, in Criminal Case No. CBU-46291, finding petitioner guilty beyond

reasonable doubt of violation of Section 16, Article III of Republic Act (R.A.) 6425.The facts, as culled from the records, are the following:

Pursuant to a confidential information that petitioner was engaged in selling shabu, police officers headed by SPO3 Bienvenido Masnayon, after

conducting surveillance and test-buy operation at the house of petitioner, secured a search warrant from the RTC and around 3 o'clock in theafternoon of September 13, 1997, the same police operatives went to Gil Tudtud St., Mabolo, Cebu City to serve the search warrant to petitioner.

Upon arrival, somebody shouted raid, which prompted them to immediately disembark from the jeep they were riding and went directly topetitioner's house and cordoned it. The structure of the petitioner's residence is a two-storey house and the petitioner was staying in the second floor.

When they went upstairs, they met petitioner's wife and informed her that they will implement the search warrant. But before they can search thearea, SPO3 Masnayon claimed that he saw petitioner run towards a small structure, a nipa hut, in front of his house. Masnayon chased him but to noavail, because he and his men were not familiar with the entrances and exits of the place.

They all went back to the residence of the petitioner and closely guarded the place where the subject ran for cover. SPO3 Masnayon requestedhis men to get a barangay tanod and a few minutes thereafter, his men returned with two barangay tanods.

In the presence of the barangay tanod, Nelson Gonzalado, and the elder sister of petitioner named Dolly del Castillo, searched the house of

petitioner including the nipa hut where the petitioner allegedly ran for cover. His men who searched the residence of the petitioner found nothing,but one of the barangay tanods was able to confiscate from the nipa hut several articles, including four (4) plastic packs containing white crystallinesubstance. Consequently, the articles that were confiscated were sent to the PNP Crime Laboratory for examination. The contents of the four (4)heat- sealed transparent plastic packs were subjected to laboratory examination, the result of which proved positive for the presence of

methamphetamine hydrochloride, or shabu.

Thus, an Information was filed before the RTC against petitioner, charging him with violation of Section 16, Article III of R.A. 6425, asamended. The Information[5] reads:

That on or about the 13th day of September 1997, at about 3:00 p.m. in the City of Cebu, Philippines and within the jurisdict ion of thisHonorable Court, the said accused, with deliberate intent, did then and there have in his possession and control four (4) packs of white crystalline

powder, having a total weight of 0.31 gram, locally known as shabu, all containing methamphetamine hydrochloride, a regulated drug, withoutlicense or prescription from any competent authority.

CONTRARY TO LAW.[6]

During arraignment, petitioner, with the assistance of his counsel, pleaded not guilty.[7] Subsequently, trial on the merits ensued.

To prove the earlier mentioned incident, the prosecution presented the testimonies of SPO3 Bienvenido Masnayon, PO2 Milo Arriola, and

Forensic Analyst, Police Inspector Mutchit Salinas.

The defense, on the other hand, presented the testimonies of petitioner, Jesusa del Castillo, Dalisay del Castillo and Herbert Aclan, which canbe summarized as follows:

On September 13, 1997, around 3 o'clock in the afternoon, petitioner was installing the electrical wirings and airconditioning units of the Four

Seasons Canteen and Beauty Parlor at Wacky Bldg., Cabancalan, Cebu. He was able to finish his job around 6 o'clock in the evening, but he wasengaged by the owner of the establishment in a conversation. He was able to go home around 8:30-9 o'clock in the evening. It was then that helearned from his wife that police operatives searched his house and found nothing. According to him, the small structure, 20 meters away from his

house where they found the confiscated items, was owned by his older brother and was used as a storage place by his father.

After trial, the RTC found petitioner guilty beyond reasonable of the charge against him in the Information. The dispositive portion of the

Decision reads:

WHEREFORE, premises considered, this Court finds the accused Ruben del Castillo alyas Boy Castillo, GUILTY of violatingSection 16, Article III, Republic Act No. 6425, as amended. There being no mitigating nor aggravating circumstances proven before this Court, andapplying the Indeterminate Sentence Law, he is sentenced to suffer the penalty of Six (6) Months and One (1) Day as Minimum and Four (4) Years

and Two (2) Months as Maximum of Prision Correccional.


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The four (4) small plastic packets of white crystalline substance having a total weight of 0.31 gram, positive for the presence ofmethamphetamine hydrochloride, are ordered confiscated and shall be destroyed in accordance with the law.

SO ORDERED.[8]

Aggrieved, petitioner appealed his case with the CA, but the latter affirmed the decision of the RTC, thus:

WHEREFORE, the challenged Decision is AFFIRMED in toto and the appeal is DISMISSED, with costs against accused-appellant.

SO ORDERED.[9]

After the motion for reconsideration of petitioner was denied by the CA, petitioner filed with this Court the present petition for certiorari underRule 45 of the Rules of Court with the following arguments raised:

1. THE COURT OF APPEALS ERRED IN ITS APPLICATION OF THE PROVISIONS OF THE CONSTITUTION, THE RULES OFCOURT AND ESTABLISHED JURISPRUDENCE VIS-A-VIS VALIDITY OF SEARCH WARRANT NO. 570-9-1197-24;

2. THE COURT OF APPEALS ERRED IN RULING THAT THE FOUR (4) PACKS OF WHITE CRYSTALLINE POWDERALLEGEDLY FOUND ON THE FLOOR OF THE NIPA HUT OR STRUCTURE ARE ADMISSIBLE IN EVIDENCE AGAINST THE

PETITIONER, NOT ONLY BECAUSE THE SAID COURT SIMPLY PRESUMED THAT IT WAS USED BY THE PETITIONER OR THATTHE PETITIONER RAN TO IT FOR COVER WHEN THE SEARCHING TEAM ARRIVED AT HIS RESIDENCE, BUT ALSO, PRESUMING

THAT THE SAID NIPA HUT OR STRUCTURE WAS INDEED USED BY THE PETITIONER AND THE FOUR (4) PACKS OF WHITECRYSTALLINE POWDER WERE FOUND THEREAT. THE SUBJECT FOUR (4) PACKS OF WHITE CRYSTALLINE POWDER AREFRUITS OF THE POISONOUS TREE; and

3. THE COURT OF APPEALS ERRED IN ITS APPLICATION OF THE ELEMENT OF POSSESSION AS AGAINST THEPETITIONER, AS IT WAS IN VIOLATION OF THE ESTABLISHED JURISPRUDENCE ON THE MATTER. HAD THE SAID COURTPROPERLY APPLIED THE ELEMENT IN QUESTION, IT COULD HAVE BEEN ASSAYED THAT THE SAME HAD NOT BEENPROVEN.[10]

The Office of the Solicitor General (OSG), in its Comment dated February 10, 2009, enumerated the following counter-arguments:

I

SEARCH WARRANT No. 570-9-11-97-24 issued by Executive Judge Priscilla S. Agana of Branch 24, Regional Trial Court of Cebu City is valid.

IIThe four (4) packs of shabu seized inside the shop of petitioner are admissible in evidence against him.

IIIThe Court of Appeals did not err in finding him guilty of illegal possession of prohibited drugs.[11]

Petitioner insists that there was no probable cause to issue the search warrant, considering that SPO1 Reynaldo Matillano, the police officerwho applied for it, had no personal knowledge of the alleged illegal sale of drugs during a test-buy operation conducted prior to the application of thesame search warrant. The OSG, however, maintains that the petitioner, aside from failing to file the necessary motion to quash the search warrant

pursuant to Section 14, Rule 127 of the Revised Rules on Criminal Procedure, did not introduce clear and convincing evidence to show thatMasnayon was conscious of the falsity of his assertion or representation.

Anent the second argument, petitioner asserts that the nipa hut located about 20 meters away from his house is no longer within the

permissible area that may be searched by the police officers due to the distance and that the search warrant did not include the same nipa hut as oneof the places to be searched. The OSG, on the other hand, argues that the constitutional guaranty against unreasonable searches and seizure isapplicable only against government authorities and not to private individuals such as the barangay tanod who found the folded paper containing

packs of shabu inside the nipa hut.

As to the third argument raised, petitioner claims that the CA erred in finding him guilty beyond reasonable doubt of illegal possession ofprohibited drugs, because he could not be presumed to be in possession of the same just because they were found inside the nipa hut. Nevertheless,the OSG dismissed the argument of the petitioner, stating that, when prohibited and regulated drugs are found in a house or o ther building belonging

to and occupied by a particular person, the presumption arises that such person is in possession of such drugs in violation of law, and the fact offinding the same is sufficient to convict.

This Court finds no merit on the first argument of petitioner.

The requisites for the issuance of a search warrant are: (1) probable cause is present; (2) such probable cause must be determined personally bythe judge; (3) the judge must examine, in writing and under oath or affirmation, the complainant and the witnesses he or she may produce; (4) theapplicant and the witnesses testify on the facts personally known to them; and (5) the warrant specifically describes the place to be searched and the

things to be seized.[12] According to petitioner, there was no probable cause. Probable cause for a search warrant is defined as such facts andcircumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in

connection with the offense are in the place sought to be searched.[13] A finding of probable cause needs only to rest on 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 bare suspicion; itrequires less than evidence which would justify conviction.[14] The judge, in determining probable cause, is to consider the totality of the

circumstances made known to him and not by a fixed and rigid formula,[15] and must employ a flexible, totality of the circumstances standard.[16]The existence depends to a large degree upon the finding or opinion of the judge conducting the examination. This Court, therefore, is in no positionto disturb the factual findings of the judge which led to the issuance of the search warrant. A magistrate's determination of probable cause for the

issuance of a search warrant is paid great deference by a reviewing court, as long as there was substantial basis for that determination.[17]Substantial basis means that the questions of the examining judge brought out such facts and circumstances as would lead a reasonably discreet and

prudent man to believe that an offense has been committed, and the objects in connection with the offense sought to be seized are in the place soughtto be searched.[18] A review of the records shows that in the present case, a substantial basis exists.

With regard to the second argument of petitioner, it must be remembered that the warrant issued must particularly describe the place to besearched and persons or things to be seized in order for it to be valid. A designation or description that points out the place to be searched to the


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exclusion of all others, and on inquiry unerringly leads the peace officers to it, satisfies the constitutional requirement of definiteness.[19] In thepresent case, Search Warrant No. 570-9-1197-24[20] specifically designates or describes the residence of the petitioner as the place to be searched.Incidentally, the items were seized by a barangay tanod in a nipa hut, 20 meters away from the residence of the petitioner. The confiscated items,

having been found in a place other than the one described in the search warrant, can be considered as fruits of an invalid warrantless search, thepresentation of which as an evidence is a violation of petitioner's constitutional guaranty against unreasonable searches and seizure. The OSG arguesthat, assuming that the items seized were found in another place not designated in the search warrant, the same items should still be admissible asevidence because the one who discovered them was a barangay tanod who is a private individual, the constitutional guaranty against unreasonable

searches and seizure being applicable only against government authorities. The contention is devoid of merit.

It was testified to during trial by the police officers who effected the search warrant that they asked the assistance of the barangay tanods, thus,in the testimony of SPO3 Masnayon:

Fiscal Centino:

Q For how long did the chase take place?

A Just a very few moments.

Q After that, what did you [do] when you were not able to reach him?

A I watched his shop and then I requested my men to get a barangay tanod.

Q Were you able to get a barangay tanod?

A Yes.

Q Can you tell us what is the name of the barangay tanod?

A Nelson Gonzalado.

Q For point of clarification, how many barangay tanod [did] your driver get?

A Two.

Q What happened after that?

A We searched the house, but we found negative.

Q Who proceeded to the second floor of the house?

A SPO1 Cirilo Pogoso and Milo Areola went upstairs and found nothing.

Q What about you, where were you?

A I [was] watching his shop and I was with Matillano.

Q What about the barangay tanod?

A Together with Milo and Pogoso.

Q When the search at the second floor of the house yielded negative what did you do?

A They went downstairs because I was suspicious of his shop because he ran from his shop, so we searched his shop.

Q Who were with you when you searched the shop?

A The barangay tanod Nilo Gonzalado, the elder sister of Ruben del Castillo named Dolly del Castillo.

Q You mean to say, that when (sic) SPO1 Reynaldo Matillano, Barangay Tanod Nilo Gonzalado and the elder sister of Ruben del Castillo were together in the shop?A Yes.

Q What happened at the shop?

A One of the barangay tanods was able to pick up white folded paper.

Q What [were] the contents of that white folded paper?

A A plastic pack containing white crystalline.

Q Was that the only item?

A There are others like the foil, scissor.

Q Were you present when those persons found those tin foil and others inside the electric shop?

A Yes.[21]

The fact that no items were seized in the residence of petitioner and that the items that were actually seized were found in another structure by a barangay tanod, was corroborated by PO2

Arriola, thus:

FISCAL:

Q So, upon arriving at the house of Ruben del Castillo alias Boy, can you still recall what took place?

A We cordoned the area.

Q And after you cordoned the area, did anything happen?

A We waited for the barangay tanod.

Q And did the barangay tanod eventually appear?

A Yes. And then we started our search in the presence of Ruben del Castillo's wife.

Q What is the name of the wife of Ruben del Castillo?

A I cannot recall her name, but if I see her I can recall [her] face.

Q What about Ruben del Castillo, was she around when [you] conducted the search?

A No. Ruben was not in the house. But our team leader, team mate Bienvenido Masnayon saw that Ruben ran away from his adjacent electronic shop near his house, in front of his house.

Q Did you find anything during the search in the house of Ruben del Castillo?

A After our search in the house, we did not see anything. The house was clean.

Q What did you do afterwards, if any?

A We left (sic) out of the house and proceeded to his electronic shop.

Q Do you know the reason why you proceeded to his electronic shop?

A Yes. Because our team leader Bienvenido Masnayon saw that (sic) Ruben run from that store and furthermore the door was open.

Q How far is the electronic shop from the house of Ruben del Castillo?

A More or less, 5 to 6 meters in front of his house.

x x x x

Q So, who entered inside the electronic shop?

A The one who first entered the electronic shop is our team leader Bienvenido Masnayon.

Q You mentioned that Masnayon entered first. Do you mean to say that there were other persons or other person that followed after Masnayon?


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A Then we followed suit.

Q All of your police officers and the barangay tanod followed suit?

A I led Otadoy and the barangay tanod.

Q What about you?

A I also followed suit.

Q And did anything happen inside the shop of Ruben del Castillo?

A It was the barangay tanod who saw the folded paper and I saw him open the folded paper which contained four shabu deck.

Q How far were you when you saw the folded paper and the tanod open the folded paper?

A We were side by side because the shop was very small.[22]

SPO1 Pogoso also testified on the same matter, thus:

FISCAL CENTINO:

Q And where did you conduct the search, Mr. Witness?

A At his residence, the two-storey house.

Q Among the three policemen, who were with you in conducting the search at the residence of the accused?

A I, Bienvenido Masnayon.

Q And what transpired after you searched the house of Ruben del Castillo?

A Negative, no shabu.

Q And what happened afterwards, if any?

A We went downstairs and proceeded to the small house.

Q Can you please describe to this Honorable Court, what was that small house which you proceeded to?

A It is a nipa hut.

Q And more or less, how far or near was it from the house of Ruben del Castillo?

A 5 to 10 meters.

Q And could you tell Mr. Witness, what was that nipa hut supposed to be?

A That was the electronic shop of Ruben del Castillo.

Q And what happened when your team proceeded to the nipa hut?

A I was just outside the nipa hut.

Q And who among the team went inside?

A PO2 Milo Areola and the Barangay Tanod.[23]

Having been established that the assistance of the barangay tanods was sought by the police authorities who effected the searched warrant, the

same barangay tanods therefore acted as agents of persons in authority. Article 152 of the Revised Penal Code defines persons in authority andagents of persons in authority as:

x x x any person directly vested with jurisdiction, whether as an individual or as a member of some court or governmental corporation, boardor commission, shall be deemed a person in authority. A barangay captain and a barangay chairman shall also be deemed a person in authority.

A person who, by direct provision of law or by election or by appointment by competent authority, is charged with the maintenance of public orderand the protection and security of life and property, such as barrio councilman, barrio policeman and barangay leader, and any person who comes tothe aid of persons in authority, shall be deemed an agent of a person in authority.

The Local Government Code also contains a provision which describes the function of a barangay tanod as an agent of persons in authority.Section 388 of the Local Government Code reads:

SEC. 388. Persons in Authority. - For purposes of the Revised Penal Code, the punong barangay, sangguniang barangay members, andmembers of the lupong tagapamayapa in each barangay shall be deemed as persons in authority in their jurisdictions, while other barangay officials

and members who may be designated by law or ordinance and charged with the maintenance of public order, protection and security of life andproperty, or the maintenance of a desirable and balanced environment, and any barangay member who comes to the aid of persons in authority, shall

be deemed agents of persons in authority.

By virtue of the above provisions, the police officers, as well as the barangay tanods were acting as agents of a person in authority during theconduct of the search. Thus, the search conducted was unreasonable and the confiscated items are inadmissible in evidence. Assuming ex gratiaargumenti that the barangay tanod who found the confiscated items is considered a private individual, thus, making the same items admissible inevidence, petitioner's third argument that the prosecution failed to establish constructive possession of the regulated drugs seized, would still be

meritorious.

Appellate courts will generally not disturb the factual findings of the trial court since the latter has the unique opportunity to weigh conflictingtestimonies, having heard the witnesses themselves and observed their deportment and manner of testifying,[24] unless attended with arbitrariness or

plain disregard of pertinent facts or circumstances, the factual findings are accorded the highest degree of respect on appeal[25] as in the present case.

It must be put into emphasis that this present case is about the violation of Section 16 of R.A. 6425. In every prosecution for the illegalpossession of shabu, the following essential elements must be established: (a) the accused is found in possession of a regulated drug; (b) the person is

not authorized by law or by duly constituted authorities; and (c) the accused has knowledge that the said drug is a regulated drug.[26]

In People v. Tira,[27] this Court explained the concept of possession of regulated drugs, to wit:

This crime is mala prohibita, and, as such, criminal intent is not an essential element. However, the prosecution must prove that theaccused had the intent to possess (animus posidendi) the drugs. Possession, under the law, includes not only actual possession, but also constructive

possession. Actual possession exists when the drug is in the immediate physical possession or control of the accused. On the other hand, constructivepossession exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over theplace where it is found. Exclusive possession or control is not necessary. The accused cannot avoid conviction if his right to exercise control and

dominion over the place where the contraband is located, is shared with another.[28]


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While it is not necessary that the property to be searched or seized should be owned by the person against whom the search warrant is issued,

there must be sufficient showing that the property is under appellants control or possession.[29] The CA, in its Decision, referred to the possessionof regulated drugs by the petitioner as a constructive one. Constructive possession exists when the drug is under the dominion and control of theaccused or when he has the right to exercise dominion and control over the place where it is found.[30] The records are void of any evidence to showthat petitioner owns the nipa hut in question nor was it established that he used the said structure as a shop. The RTC, as well as the CA, merely

presumed that petitioner used the said structure due to the presence of electrical materials, the petitioner being an electrician by profession. The CA,in its Decision, noted a resolution by the investigating prosecutor, thus:

x x x As admitted by respondent's wife, her husband is an electrician by occupation. As such, conclusion could be arrived at that the

structure, which housed the electrical equipments is actually used by the respondent. Being the case, he has control of the things found in saidstructure.[31]

In addition, the testimonies of the witnesses for the prosecution do not also provide proof as to the ownership of the structure where the seizedarticles were found. During their direct testimonies, they just said, without stating their basis, that the same structure was the shop of petitioner.[32]During the direct testimony of SPO1 Pogoso, he even outrightly concluded that the electrical shop/nipa hut was owned by petitioner, thus:

FISCAL CENTINO:

Q Can you please describe to this Honorable Court, what was that small house which you proceeded to?A It is a nipa hut.

Q And more or less, how far or near was it from the house of Ruben del Castillo?A 5 to 10 meters.

Q And could you tell Mr. Witness, what was that nipa hut supposed to be?A That was the electronic shop of Ruben del Castillo.

Q And what happened when your team proceeded to the nipa hut?

A I was just outside the nipa hut.[33]

However, during cross-examination, SPO3 Masnayon admitted that there was an electrical shop but denied what he said in his earlier testimonythat it was owned by petitioner, thus:

ATTY. DAYANDAYAN:

Q You testified that Ruben del Castillo has an electrical shop, is that correct?

A He came out of an electrical shop. I did not say that he owns the shop.

Q Now, this shop is within a structure?A Yes.

Q How big is the structure?A It is quite a big structure, because at the other side is a mahjong den and at the other side is a structure rented by a couple.[34]

The prosecution must prove that the petitioner had knowledge of the existence and presence of the drugs in the place under his control and

dominion and the character of the drugs.[35] With the prosecution's failure to prove that the nipa hut was under petitioner's control and dominion,there casts a reasonable doubt as to his guilt. In considering a criminal case, it is critical to start with the law's own starting perspective on the status

of the accused - in all criminal prosecutions, he is presumed innocent of the charge laid unless the contrary is proven beyond reasonable doubt.[36]Proof beyond reasonable doubt, or that quantum of proof sufficient to produce a moral certainty that would convince and satisfy the conscience ofthose who act in judgment, is indispensable to overcome the constitutional presumption of innocence.[37]

WHEREFORE, the Decision dated July 31, 2006 of the Court of Appeals in CA-G. R. No. 27819, which affirmed the Decision dated March 14,2003 of the Regional Trial Court, Branch 12, Cebu, in Criminal Case No. CBU-46291 is hereby REVERSED and SET ASIDE. Petitioner Ruben delCastillo is ACQUITTED on reasonable doubt.

SO ORDERED.


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(ii) THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF DUTY OF THE POLICE OFFICER CANNOT BE RELIEDUPON IN THIS CASE.

(iii) THE INTEGRITY AND EVIDENTIARY VALUE OF THE ALLEGED SUBJECT SPECIMEN HAS BEEN COMPROMISED.

(iv) THE GUILT OF THE ACCUSED-PETITIONER WAS NOT PROVEN BEYOND THE REASONABLE DOUBT (sic).[7]

Petitioner claims that there was no lawful search and seizure, because there was no lawful arrest. He claims that the finding that there was alawful arrest was erroneous, since he was not even issued a citation ticket or charged with violation of the city ordinance. Even assuming there was a

valid arrest, he claims that he had never consented to the search conducted upon him.

On the other hand, finding that petitioner had been lawfully arrested, the RTC held thus:

It is beyond dispute that the accused was flagged down and apprehended in this case by Police Officers Alteza and Brillante for violation ofCity Ordinance No. 98-012, an ordinance requiring the use of crash helmet by motorcycle drivers and riders thereon in the City of Naga and

prescribing penalties for violation thereof. The accused himself admitted that he was not wearing a helmet at the time when he was flagged down bythe said police officers, albeit he had a helmet in his possession. Obviously, there is legal basis on the part of the apprehending officers to flag down

and arrest the accused because the latter was actually committing a crime in their presence, that is, a violation of City Ordinance No. 98-012. In otherwords, the accused, being caught in flagrante delicto violating the said Ordinance, he could therefore be lawfully stopped or arrested by the

apprehending officers. x x x.[8]

We find the Petition to be impressed with merit, but not for the particular reasons alleged. In criminal cases, an appeal throws the entire casewide open for review and the reviewing tribunal can correct errors, though unassigned in the appealed judgment, or even reverse the trial courtsdecision based on grounds other than those that the parties raised as errors.[9]

First, there was no valid arrest of petitioner. When he was flagged down for committing a traffic violation, he was not, ipso facto and solely forthis reason, arrested.

Arrest is the taking of a person into custody in order that he or she may be bound to answer for the commission of an offense.[10] It is effected by anactual restraint of the person to be arrested or by that persons voluntary submission to the custody of the one making the arrest. Neither theapplication of actual force, manual touching of the body, or physical restraint, nor a formal declaration of arrest, is required. It is enough that there bean intention on the part of one of the parties to arrest the other, and that there be an intent on the part of the other to submit, under the belief andimpression that submission is necessary.[11]

Under R.A. 4136, or the Land Transportation and Traffic Code, the general procedure for dealing with a traffic violation is not the arrest of theoffender, but the confiscation of the drivers license of the latter:

SECTION 29. Confiscation of Driver's License.Law enforcement and peace officers of other agencies duly deputized by the Director shall, inapprehending a driver for any violation of this Act or any regulations issued pursuant thereto, or of local traffic rules and regulations not contrary toany provisions of this Act, confiscate the license of the driver concerned and issue a receipt prescribed and issued by the Bureau therefor which shallauthorize the driver to operate a motor vehicle for a period not exceeding seventy-two hours from the time and date of issue of said receipt. The

period so fixed in the receipt shall not be extended, and shall become invalid thereafter. Failure of the driver to settle his case within fifteen days fromthe date of apprehension will be a ground for the suspension and/or revocation of his license.

Similarly, the Philippine National Police (PNP) Operations Manual[12] provides the following procedure for flagging down vehicles during

the conduct of checkpoints:

SECTION 7. Procedure in Flagging Down or Accosting Vehicles While in Mobile Car. This rule is a general concept and will not apply in hotpursuit operations. The mobile car crew shall undertake the following, when applicable: x x x

m. If it concerns traffic violations, immediately issue a Traffic Citation Ticket (TCT) or Traffic Violation Report (TVR). Never indulge inprolonged, unnecessary conversation or argument with the driver or any of the vehicles occupants;

At the time that he was waiting for PO3 Alteza to write his citation ticket, petitioner could not be said to have been underarrest. There was nointention on the part of PO3 Alteza to arrest him, deprive him of his liberty, or take him into custody. Prior to the issuance of the ticket, the periodduring which petitioner was at the police station may be characterized merely as waiting time. In fact, as found by the trial court, PO3 Alteza himselftestified that the only reason they went to the police sub-station was that petitioner had been flagged down almost in front of that place. Hence, it

was only for the sake of convenience that they were waiting there. There was no intention to take petitioner into custody.

In Berkemer v. McCarty,[13] the United States (U.S.) Supreme Court discussed at length whether the roadside questioning of a motorist detainedpursuant to a routine traffic stop should be considered custodial interrogation. The Court held that, such questioning does not fall under custodial

interrogation, nor can it be considered a formal arrest, by virtue of the nature of the questioning, the expectations of the motorist and the officer, andthe length of time the procedure is conducted. It ruled as follows:

It must be acknowledged at the outset that a traffic stop significantly curtails the freedom of action of the driver and th e passengers, if any, of thedetained vehicle. Under the law of most States, it is a crime either to ignore a policemans signal to stop ones car or, once having stopped, to drive

away without permission. x x x

However, we decline to accord talismanic power to the phrase in the Miranda opinion emphasized by respondent. Fidelity to the doctrine announced

in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated.Thus, we must decide whether a traffic stop exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against

self-incrimination to require that he be warned of his constitutional rights.

Two features of an ordinary traffic stop mitigate the danger that a person questioned will be induced to speak where hewould not otherwise do so

freely, Miranda v. Arizona, 384 U. S., at 467. First, detention of a motorist pursuant to a traffic stop is presumptively temporary and brief. The vastmajority of roadside detentions last only a few minutes. A motorists expectations, when he sees a policemans light flashing behind him, are that he


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will be obliged to spend a short period of time answering questions and waiting while the officer checks his license and registration, that he may thenbe given a citation, but that in the end he most likely will be allowed to continue on his way. In this respect, questioning incident to an ordinarytraffic stop is quite different from stationhouse interrogation, which frequently is prolonged, and in which the detainee often is aware that questioning

will continue until he provides his interrogators the answers they seek. See id., at 451.

Second, circumstances associated with the typical traffic stop are not such that the motorist feels completely at the mercy of the police. To be sure,the aura of authority surrounding an armed, uniformed officer and the knowledge that the officer has some discretion in deciding whether to issue a

citation, in combination, exert some pressure on the detainee to respond to questions. But other aspects of the situation substantially offset theseforces. Perhaps most importantly, the typical traffic stop is public, at least to some degree. x x x

In both of these respects, the usual traffic stop is more analogous to a so-called Terry stop, see Terry v. Ohio, 392 U. S. 1 (1968), than to a formal

arrest. x x x The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terrystops are subject to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarilydetained pursuant to such stops are not in custody for the purposes of Miranda.

x x x x x x x x x

We are confident that the state of affairs projected by respondent will not come to pass. It is settled that the safeguards prescribed by Miranda becomeapplicable as soon as a suspects freedom of action is curtailed to a degree associated with formal arrest. California v. Beheler, 463 U. S. 1121,

1125 (1983) (per curiam). If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him incustody for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda. See Oregon v. Mathiason, 429 U. S. 492,

495 (1977) (per curiam). (Emphasis supplied.)

The U.S. Court in Berkemer thus ruled that, since the motorist therein was only subjected to modest questions while still at the scene of thetraffic stop, he was not at that moment placed under custody (such that he should have been apprised of his Miranda rights), and neither can treatment

of this sort be fairly characterized as the functional equivalent of a formal arrest. Similarly, neither can petitioner here be considered under arrest atthe time that his traffic citation was being made.

It also appears that, according to City Ordinance No. 98-012, which was violated by petitioner, the failure to wear a crash helmet while riding a

motorcycle is penalized by a fine only. Under the Rules of Court, a warrant of arrest need not be issued if the information or charge was filed for anoffense penalized by a fine only. It may be stated as a corollary that neither can a warrantless arrest be made for such an offense.

This ruling does not imply that there can be no arrest for a traffic violation. Certainly, when there is an intent on the par t of the police officer todeprive the motorist of liberty, or to take the latter into custody, the former may be deemed to have arrested the motorist. In this case, however, the

officers issuance (or intent to issue) a traffic citation ticket negates the possibility of an arrest for the same violation.

Even if one were to work under the assumption that petitioner was deemed arrested upon being flagged down for a traffic violation and whileawaiting the issuance of his ticket, then the requirements for a valid arrest were not complied with.

This Court has held that at the time a person is arrested, it shall be the duty of the arresting officer to inform the latter of the reason for the arrest andmust show that person the warrant of arrest, if any. Persons shall be informed of their constitutional rights to remain silent and to counsel, and thatany statement they might make could be used against them.[14] It may also be noted that in this case, these constitutional requirements were

complied with by the police officers only after petitioner had been arrested for illegal possession of dangerous drugs.

In Berkemer, the U.S. Court also noted that the Miranda warnings must also be given to a person apprehended due to a traffic violation:

The purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce or trick captive suspects into confessing, to relievethe inherently compelling pressures generated by the custodial setting itself, which work to undermine the individuals 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 werevoluntary. Those purposes are implicated as much by in-custody questioning of persons suspected of misdemeanors as they are by questioning of

persons suspected of felonies.

If it were true that petitioner was already deemed arrested when he was flagged down for a traffic violation and while he waiting for his

ticket, then there would have been no need for him to be arrested for a second timeafter the police officers allegedly discovered the drugsas hewas already in their custody.

Second, there being no valid arrest, the warrantless search that resulted from it was likewise illegal.

The following are the instances when a warrantless search is allowed: (i) a warrantless search incidental to a lawful arrest; (ii) search ofevidence in plain view; (iii) search of a moving vehicle; (iv) consented warrantless search; (v) customs search; (vi) a stop and frisk search; and(vii) exigent and emergency circumstances.[15] None of the above-mentioned instances, especially a search incident to a lawful arrest, are applicableto this case.

It must be noted that the evidence seized, although alleged to be inadvertently discovered, was not in plain view. It was actually concealedinside a metal container inside petitioners pocket. Clearly, the evidence was not immediately apparent.[16]

Neither was there a consented warrantless search. Consent to a search is not to be lightly inferred, but shown by clear and convincingevidence.[17] It must be voluntary in order to validate an otherwise illegal search; that is, the consent must be unequivocal, specific, intelligently

given and uncontaminated by any duress or coercion. While the prosecution claims that petitioner acceded to the instruction of PO3 Alteza, thisalleged accession does not suffice to prove valid and intelligent consent. In fact, the RTC found that petitioner was merely told to take out thecontents of his pocket.[18]

Whether consent to the search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. Relevant to thisdetermination are the following characteristics of the person giving consent and the environment in which consent is given: (1) the age of the

defendant; (2) whether the defendant was in a public or a secluded location; (3) whether the defendant objected to the search or passively looked on;(4) the education and intelligence of the defendant; (5) the presence of coercive police procedures; (6) the defendants belief that no incriminating

evidence would be found; (7) the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the possiblyvulnerable subjective state of the person consenting. It is the State that has the burden of proving, by clear and positive testimony, that the necessaryconsent was obtained, and was freely and voluntarily given.[19] In this case, all that was alleged was that petitioner was alone at the police station at

three in the morning, accompanied by several police officers. These circumstances weigh heavily against a finding of valid consent to a warrantlesssearch.


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Neither does the search qualify under the stop and frisk rule. While the rule normally applies when a police officer observes suspicious orunusual conduct, which may lead him to believe that a criminal act may be afoot, the stop and frisk is merely a limited protective search of outerclothing for weapons.[20]

In Knowles v. Iowa,[21] the U.S. Supreme Court held that when a police officer stops a person for speeding and correspondingly issues acitation instead of arresting the latter, this procedure does not authorize the officer to conduct a full search of the car. The Court therein held thatthere was no justification for a full-blown search when the officer does not arrest the motorist. Instead, police officers may only conduct minimal

intrusions, such as ordering the motorist to alight from the car or doing a patdown:In Robinson, supra, we noted the two historical rationales for the search incident to arrest exception: (1) the need to disarm the suspect in order totake him into custody, and (2) the need to preserve evidence for later use at trial. x x x But neither of these underlying rationales for the searchincident to arrest exception is sufficient to justify the search in the present case.

We have recognized that the first rationaleofficer safetyis both legitimate and weighty, x x x The threat to officer safety from issuing atraffic citation, however, is a good deal less than in the case of a custodial arrest. In Robinson, we stated that a custodial arrest involves danger to anofficer because of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station. 414 U. S.,at 234-235. We recognized that [t]he danger to the police officer flows from the fact of the arrest, and its attendant proximity, stress, and

uncertainty, and not from the grounds for arrest. Id., at 234, n. 5. A routine traffic stop, on the other hand, is a relatively brief encounter and is moreanalogous to a so-called Terry stop . . . than to a formal arrest. Berkemer v. McCarty, 468 U. S. 420, 439 (1984). See also Cupp v. Murphy, 412 U.S. 291, 296 (1973) (Where there is no formal arrest . . . a person might well be less hostile to the police and less likely to take conspicuous,immediate steps to destroy incriminating evidence).

This is not to say that the concern for officer safety is absent in the case of a routine traffic stop. It plainly is not. See Mimms, supra, at 110; Wilson,

supra, at 413-414. But while the concern for officer safety in this context may justify the minimal additional intrusion of ordering a driver andpassengers out of the car, it does not by itself justify the often considerably greater intrusion attending a full fieldtype search. Even without the search

authority Iowa urges, officers have other, independent bases to search for weapons and protect themselves from danger. For example, they may orderout of a vehicle both the driver, Mimms, supra, at 111, and any passengers, Wilson, supra, at 414; perform a patdown of a driver and any

passengers upon reasonable suspicion that they may be armed and dangerous, Terry v. Ohio, 392 U. S. 1 (1968); conduct a Terry patdown of thepassenger compartment of a vehicle upon reasonable suspicion that an occupant is dangerous and may gain immediate control of a weapon, Michigan

v. Long, 463 U. S. 1032, 1049 (1983); and even conduct a full search of the passenger compartment, including any containers therein, pursuant to acustodial arrest, New York v. Belton, 453 U. S. 454, 460 (1981).

Nor has Iowa shown the second justification for the authority to search incident to arrestthe need to discover and preserve evidence. Once

Knowles was stopped for speeding and issued a citation, all the evidence necessary to prosecute that offense had been obtained. No further evidenceof excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car. (Emphasis supplied.)

The foregoing considered, petitioner must be acquitted. While he may have failed to object to the illegality of his arrest at the earliestopportunity, a waiver of an illegal warrantless arrest does not, however, mean a waiver of the inadmissibility of evidence seized during the illegalwarrantless arrest.[22]

The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches andseizures.[23] Any evidence obtained in violation of said right shall be inadmissible for any purpose in any proceeding. While the power to search andseize may at times be necessary to the public welfare, still it must be exercised and the law implemented without contravening the constitutional

rights of citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government.[24]The subject items seized during the illegal arrest are inadmissible.[25] The drugs are the very corpus delicti of the crime of illegal possession ofdangerous drugs. Thus, their inadmissibility precludes conviction and calls for the acquittal of the accused.[26]

WHEREFORE, the Petition is GRANTED. The 18 February 2011 Decision of the Court of Appeals in CA-G.R. CR No. 32516 affirming thejudgment of conviction dated 19 February 2009 of the Regional Trial Court, 5th Judicial Region, Naga City, Branch 21, in Criminal Case No. RTC2003-0087, is hereby REVERSED and SET ASIDE. Petitioner Rodel Luz y Ong is hereby ACQUITTED and ordered immediately released fromdetention, unless his continued confinement is warranted by some other cause or ground.

SO ORDERED.


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Republic of the Philippines

SUPREME COURT

Manila

THIRD DIVISION

G.R. No. 191532 August 15, 2012

MARGARITA AMBRE Y CAYUNI, Petitioner,

vs.PEOPLE OF THE PHILIPPINES Respondent.

PEREZ,*

REYES,**

D E C I S I O N

MENDOZA, J.:

This is a petition for review on certiorari seeking to reverse and set aside the November 26, 2009 Decision 1 and the March 9, 2010

Resolution2 of the Court of Appeals (CA) in CA-G.R. CR No. 31957, which affirmed the September 1, 2008 Decision3 of the

Regional Trial Court, Branch 123, Caloocan City, (RTC) in Criminal Case No .. C-73029, finding petitioner Margarita Ambre yCayuni (Ambre) guilty beyond reasonable doubt of the crime of violation of Section 15, Article II of Republic Act (R.A.) No. 9165.

THE FACTS

Two separate Informations were filed against Ambre, and co-accused, Bernie Castro (Castro) and Kaycee Mendoza (Mendoza), before

the RTC charging them with illegal possession of drug paraphernalia docketed as Criminal Case No. C-73028, and illegal use of

methylamphetamine hydrochloride, otherwise known as shabu, docketed as Criminal Case No. C-73029. The Informations indicting

the accused read:

Criminal Case No. C-73028

That on or about 20th day of April 2005 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 hispossession, custody and control one (1) unsealed transparent plastic sachet containing traces of white crystalline substance,

(METHYLAMPHETAMINE HYDROCHLORIDE), one (1) rolled aluminum foil strip containing traces of white crystalline

substance, (METHYLAMPHETAMINE HYDROCHLORIDE), one (1) folded aluminum foil strip containing traces of white

crystalline substance, (METHYLAMPHETAMINE HYDROCHLORIDE) and two (2) disposable plastic lighters, knowing the same

are paraphernalias instruments apparatus fit or intended for smoking, consuming, administering, ingesting or introducing dangerous

drug (METHYLAMPHETAMINE HYDROCHLORIDE) into the body.

Contrary to law.4

Criminal Case No. C-73029

That on or about the 20th of April 2005 in Caloocan City, Metro Manila and within the jurisdiction of this Honorable Court, the

above-named accused, conspiring together and mutually helping with one another, without being authorized by law, did then and there

willfully, unlawfully and feloniously use and sniff Methylamphetamine Hydrochloride (Shabu), knowing the same to be a dangerous

drug under the provisions of the above-cited law.

Contrary to law.5

When arraigned, Castro and Mendoza pleaded guilty to both charges. Consequently, they were meted the penalty of imprisonment of

six (6) months and one (1) day to one (1) year and eight (8) months and a fine of P25,000.00 in Criminal Case No. C-73028. For their

conviction in Criminal Case No. C-73029, the RTC ordered their confinement at the Center for the Ultimate Rehabilitation of Drug

Dependents (CUREDD) for a period of six (6) months.6

Ambre, on the other hand, entered a plea of not guilty to the charges.7 Trial on the merits ensued.

The Version of the Prosecution

From the testimonies of prosecution witnesses PO3 Fernando Moran (PO3 Moran), PO1 Ronald Allan Mateo (PO1 Mateo), PO2

Randulfo Hipolito (PO2 Hipolito), and P/Insp. Jessie dela Rosa (P/Insp. dela Rosa), it appeared that on April 20, 2005, the Caloocan

Police Station Anti-Illegal Drug-Special Operation Unit conducted a buy-bust operation pursuant to a tip from a police informant that

a certain Abdulah Sultan (Sultan) and his wife Ina Aderp (Aderp) were engaged in the selling of dangerous drugs at a residential

compound in Caloocan City; that the buy-bust operation resulted in the arrest of Aderp and a certain Moctar Tagoranao (Tagoranao);

that Sultan ran away from the scene of the entrapment operation and PO3 Moran, PO2 Masi and PO1 Mateo, pursued him; that in the

course of the chase, Sultan led the said police officers to his house; that inside the house, the police operatives found Ambre, Castro

and Mendoza having a pot session; that Ambre, in particular, was caught sniffing what was suspected to be shabu in a rolled up

aluminum foil; and that PO3 Moran ran after Sultan while PO2 Masi and PO1 Mateo arrested Ambre, Castro and Mendoza for illegal

use of shabu.


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The items confiscated from the three were marked and, thereafter, submitted for laboratory examination. Physical Science Report No.

DT-041-05 to DT-043-05 stated that the urine samples taken from Ambre and her coaccused were positive for the presence of shabu

while Physical Science Report No. D-149-05 showed that the items seized from them were all found positive for traces of shabu.8

The Version of the Defense

Ambre vehemently denied the charges against her. Through the testimonies of Ambre, Mendoza and Lily Rosete (Rosete), the defense

claimed that on the afternoon of April 20, 2005, Ambre was inside the residential compound in Caloocan to buy malong; that her

mother asked Rosete to accompany her because Rosetes daughter-in-law, Nancy Buban (Buban), was a resident of Phase 12,

Caloocan City, an area inhabited by Muslims; that when they failed to buy malong, Rosete and Buban left her inside the residential

compound to look for other vendors; that ten minutes later, the policemen barged inside the compound and arrested her; that she was

detained at the Caloocan City Jail where she met Castro, Mendoza and Tagoranao; and that she was not brought to the Philippine

National Police (PNP) Crime Laboratory for drug testing.

Rosete further testified that after she had left Ambre inside the compound to find other malong vendors, she returned fifteen minutes

later and learned that the policemen had arrested people inside the compound including Ambre.

Mendoza, who was convicted in Criminal Case No. C-73029, claimed that no pot session took place on the afternoon of April 20,

2005. She averred that she and Ambre were merely inside the residential compound, when policemen suddenly came in and pointed

guns at them.9

The Ruling of the Regional Trial Court

On September 1, 2008, the RTC rendered its decision declaring that the prosecution was able to establish with certitude the guilt ofAmbre for illegal use of methylamphetamine hydrochloride or violation of Section 15, Article II of R.A. No. 9165. The RTC,

however, acquitted her of the crime of violation of Section 12, Article II of R.A. No. 9165 for failure of the prosecution to prove with

particularity the drug paraphernalia found in her possession. The trial court adjudged:

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

1) In Crim. Case No. C- 73028, finding accused MARGARITA AMBRE Y CAYUNI not guilty of the crime of Violation of Section

12, Article II, RA 9165;

2)In Crim. Case No. C-73029, finding accused MARGARITA AMBRE Y CAYUNI guilty beyond reasonable doubt of the crime of

Violation of Sec. 15, Art. II RA 9165 and hereby sentences her to be confined and rehabilitated at the government rehabilitation center

in Bicutan, Taguig, Metro Manila for a period of six (6) months. The six (6) month period of rehabilitation shall commence only from

the time that she is brought inside the rehabilitation center and its promulgation by this court for which the accused shall be notified.

The shabu subject of these cases is hereby confiscated in favor of the government to be disposed of in accordance with the rules

governing the same.

Costs against the accused.

SO ORDERED.10

The Decision of the Court of Appeals

Undaunted, Ambre appealed the judgment of conviction before the CA professing her innocence of the crime. On November 26, 2009,

the CA rendered the assailed decision, the dispositive portion of which reads:

WHEREFORE, premises considered, the appeal is hereby DENIED. The Decision dated September 1, 2008 of the Regional Trial

Court, Branch 123, Caloocan City is AFFIRMED.

SO ORDERED.11

Ambre's motion for reconsideration was denied by the CA in its March 9, 2010 Resolution. Hence, she filed this petition

THE ISSUES

Ambre raised the following issues:

1. WHETHER OR NOT THE ARREST OF AND THE SEARCH DONE AGAINST THE PETITIONER ON APRIL 20, 2005

(THAT YIELDED ALLEGED DRUG PARAPHERNALIA) CONFORMED WITH THE MANDATED LEGAL PROCEDURES IN

CONDUCTING A BUY-BUST OPERATION.

2. WHETHER OR NOT THE ARREST OF AND THE SEARCH DONE AGAINST THE PETITIONER WERE PART AND

PARCEL OF THE DISMISSED AND DISCREDITED BUY-BUST OPERATIONS OF THE POLICE AND/OR "FRUITS OF THE

POISONOUS TREE" AND HENCE, WERE ILLEGAL.

3. WHETHER OR NOT THE PROSECUTION'S EVIDENCE THAT WERE SEIZED DURING THE ILLEGAL BUY-BUST

OPERATION ARE ADMISSIBLE AS EVIDENCE.

4. WHETHER OR NOT THE EXCLUSION OR DISREGARD OF THE FAVORABLE TESTIMONY OF PETITIONER'S

WITNESS, HER CO-ACCUSED, KAYCEE MENDOZA, ON THE GROUND THAT THE LATTER EARLIER PLED GUILTY TO


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SUCH ILLEGAL USE, HAD VIOLATED THE RULE ON INTER ALIOS ACTA UNDER SECTION 26, RULE 130 OF THE

RULES OF COURT.

5. WHETHER OR NOT THE PETITIONER'S PENALTY OF SIX (6) MONTHS REHABILITATION IN A GOVERNMENT

CENTER IS A NULLITY GIVEN THE LACK OF CONFIRMATORY TEST AS REQUIRED UNDER R.A. 9165

("COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002").12

A perusal of the pleadings filed by the parties leads the Court to conclude that the case revolves on the following core issues:

1.) Whether the warrantless arrest of Ambre and the search of her person was valid; and

2.) Whether the items seized are inadmissible in evidence.

Essentially, Ambre insists that the warrantless arrest and search made against her were illegal because no offense was being

committed at the time and the police operatives were not authorized by a judicial order to enter the dwelling of Sultan. She argues that

the alleged "hot pursuit" on Sultan which ended in the latter's house, where she, Mendoza and Castro were supposedly found having a

pot session, was more imaginary than real. In this regard, Ambre cites the April 29, 2005 Resolution of the Prosecutor's Offi ce of

Caloocan City dismissing the case against Aderp and Sultan for insufficiency of evidence because the April 20, 2005 buy-bust

operation was highly suspicious and doubtful. She posits that the items allegedly seized from her were inadmissible in evidence being

fruits of a poisonous tree. She claims that the omission of the apprehending team to observe the procedure outlined in R.A. No. 9165

for the seizure of evidence in drugs cases significantly impairs the prosecutions case. Lastly, Ambre maintains that she was not

subjected to a confirmatory test and, hence, the imposition of the penalty of six months rehabilitation was not justified.

For the State, the Office of the Solicitor General (OSG) urges this Court to affirm the challenged decision for failure of Ambre toshow that the RTC committed any error in convicting her of illegal use of shabu. The OSG insists that Ambre was lawfully arrested in

accordance with Section 5, Rule 113 of the Rules of Court. It is of the opinion that the credible and compelling evidence of the

prosecution could not be displaced by the empty denial offered by Ambre.

THE COURT'S RULING

The conviction of Ambre stands.

Section 2, Article III13 of the Constitution mandates that a search and seizure must be carried out through or on the strength of a

judicial warrant predicated upon the existence of probable cause, absent which such search and seizure becomes "unreasonable"

within the meaning of said constitutional provision. Evidence obtained and confiscated on the occasion of such an unreasonable search

and seizure is tainted and should be excluded for being the proverbial fruit of a poisonous tree. In the language of the fundamental

law, it shall be inadmissible in evidence for any purpose in any proceeding.14

This exclusionary rule is not, however, an absolute and rigid proscription. One of the recognized exception established by

jurisprudence is search incident to a lawful arrest.15 In this exception, the law requires that a lawful arrest must precede the search of

a person and his belongings. As a rule, an arrest is considered legitimate if effected with a valid warrant of arrest. Section 5, Rule 113

of the Rules of Criminal Procedure, however, recognizes permissible warrantless arrests:

"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 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

supplied)

Section 5, above, provides three (3) instances when warrantless arrest may be lawfully effected: (a) arrest of a suspect in flagrante

delicto; (b) arrest of a suspect where, based on personal knowledge of the arresting officer, there is probable cause that said suspect

was the perpetrator of a crime which had just been committed; (c) arrest of a prisoner who has escaped from custody serving final

judgment or temporarily confined during the pendency of his case or has escaped while being transferred from one confinement to

another.

In arrest in flagrante delicto, the accused is apprehended at the very moment he is committing or attempting to commit or has just

committed an offense in the presence of the arresting officer. Clearly, to constitute a valid in flagrante delicto arrest, two requisites

must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is

attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.16

In the case at bench, there is no gainsaying that Ambre was caught by the police officers in the act of using shabu and, thus, can be

lawfully arrested without a warrant. PO1 Mateo positively identified Ambre sniffing suspected shabu from an aluminum foil being

held by Castro.17 Ambre, however, made much of the fact that there was no prior valid intrusion in the residence of Sultan. The

argument is specious.

Suffice it to state that prior justification for intrusion or prior lawful intrusion is not an element of an arrest in flagrante delicto. Thus,

even granting arguendo that the apprehending officers had no legal right to be present in the dwelling of Sultan, it would not render

unlawful the arrest of Ambre, who was seen sniffing shabu with Castro and Mendoza in a pot session by the police officers.

Accordingly, PO2 Masi and PO1 Mateo were not only authorized but were also duty-bound to arrest Ambre together with Castro and

Mendoza for illegal use of methamphetamine hydrochloride in violation of Section 15, Article II of R.A. No. 9165.


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To write finis to the issue of validity and irregularity in her warrantless arrest, the Court holds that Ambre is deemed to have waived

her objections to her arrest for not raising them before entering her plea.18

Considering that the warrantless arrest of Ambre was valid, the subsequent search and seizure done on her person was likewise lawful.

After all, a legitimate warrantless arrest necessarily cloaks the arresting police officer with authority to validly search and seize from

the offender (1) dangerous weapons, and (2) those that may be used as proof of the commission of an offense.19

Further, the physical evidence corroborates the testimonies of the prosecution witnesses that Ambre, together with Castro and

Mendoza, were illegally using shabu. The urine samples taken from them were found positive for the presence of shabu, as indicated

in Physical Science Report No. DT-041-05 to DT-043-05. It was likewise found that the items seized from the three were all positive

for traces of shabu as contained in Physical Science Report No. D-149-05 dated April 21, 2005. These findings were unrebutted.

Ambre's assertion that her conviction was incorrect, because the evidence against her was obtained in violation of the procedure laid

down in R.A. No. 9165, is untenable.

While ideally the procedure on the chain of custody should be perfect and unbroken, in reality, it is not as it is almost always

impossible to obtain an unbroken chain.20 This Court, however, has consistently held that the most important factor is the

preservation of the integrity and evidentiary value of the seized items.21 In this case, the prosecution was able to demonstrate that the

integrity and evidentiary value of the confiscated drug paraphernalia had not been compromised. Hence, even though the prosecution

failed to submit in evidence the physical inventory and photograph of the drug paraphernalia with traces of shabu, this will not render

Ambre's arrest illegal or the items seized from her inadmissible.

Records bear out that after the arrest of Ambre with Castro and Mendoza, the following items were confiscated from them: one (1)unsealed sachet with traces of suspected shabu; one (1) strip of rolled up aluminum foil with traces of suspected shabu; one (1) folded

piece of aluminum foil with traces of white crystalline substance also believed to be shabu; and two (2) yellow disposable lighters.

Upon arrival at the police station, PO3 Moran turned over the seized items to PO2 Hipolito who immediately marked them in the

presence of the former. All the pieces of evidence were placed inside an improvised envelope marked as "SAID-SOU EVIDENCE 04-

20-05." With the Request for Laboratory Examination, PO2 Hipolito brought the confiscated items to the PNP Crime Laboratory and

delivered them to P/Insp. dela Rosa, a forensic chemist, who found all the items, except the disposable lighters, positive for traces of

shabu. Verily, the prosecution had adduced ample evidence to account for the crucial links in the chain of custody of the seized items.

Even if the Court strikes down the seized drug paraphernalia with traces of shabu as inadmissible, Ambre will not be exculpated from

criminal liability. First, let it be underscored that proof of the existence and possession by the accused of drug paraphernalia is not a

condition sine qua non for conviction of illegal use of dangerous drugs. The law merely considers possession of drug paraphernalia as

prima facie evidence that the possessor has smoked, ingested or used a dangerous drug and creates a presumption that he has violated

Section 15 of R.A. No. 9165.22

Secondly, the testimonies of the police officers have adequately established with moral certainty the commission of the crime charged

in the information and the identity of Ambre as the perpetrator. At this juncture, the Court affirms the RTC's finding that the police

officers' testimonies deserve full faith and credit. Appellate courts, generally, will not disturb the trial court's assessment of a witness'

credibility unless certain material facts and circumstances have been overlooked or arbitrarily disregarded.23 The Court finds no

reason to deviate from this rule in this case.

Likewise, the Court upholds the presumption of regularity in the performance of official duties. The presumption remains because the

defense failed to present clear and convincing evidence that the police officers did not properly perform their duty or that they were

inspired by an improper motive. The presumption was not overcome as there was no showing that PO3 Moran, PO1 Mateo, PO2

Hipolito, and P/Insp. dela Rosa were impelled with improper motive to falsely impute such offense against Ambre.

As against the positive testimonies of the prosecution witnesses, the defense of denial offered by Ambre must simply fail. Bare denials

cannot prevail over positive identification made by the prosecution witnesses.24 Besides, this Court has held in a catena of cases that

the defense of denial or frame-up has been viewed with disfavor for it can just as easily be concocted and is a common and standard

ploy in most prosecutions for violation of the Dangerous Drugs Act.25

Finally, Ambre contends that the penalty of six months of rehabilitation in a government center imposed on her was a nullity, in view

of the alleged lack of confirmatory test. The Court is not persuaded.

It must be emphasized that in no instance did Ambre challenge, at the RTC, the supposed absence of confirmatory drug test conducted

on her. Ambre only questioned the alleged omission when she appealed her conviction before the CA. It was too late in the day for

her to do so. Wellentrenched is the rule that litigants cannot raise an issue for the first time on appeal as this would contravene the

basic rules of fair play and justice.26

WHEREFORE, the petition is DENIED. The assailed November 26, 2009 Decision and the March 9, 2010 Resolution of the Court of

Appeals in CA-G.R. CR No. 31957 are hereby AFFIRMED.

SO ORDERED.

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