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SEARCH AND SEIZURE. CONSTI 2. 1P. JUDGE DIY 1

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. 113271 October 16, 1997

WATEROUS DRUG CORPORATION and MS. EMMA CO, petitioners,vs.NATIONAL LABOR RELATIONS COMMISSION and ANTONIA MELODIACATOLICO, respondents.

DAVIDE, JR.,J.:

Nor is he a true Servant [who] buys dear to share in the Profit with the Seller. 1

This petition for certiorari under Rule 65 of the Rules of Court seeks to declareprivate respondent Antonia Melodia Catolico (hereafter Catolico) not a "trueServant," thereby assailing the 30 September 1993 decision 2and December 1993Resolution 3 of the National Labor Relations Commission (NLRC) in NLRC-NCR CA No.005160-93, which sustained the reinstatement and monetary awards in favor ofprivate respondent 4 and denied the petitioners' motion for reconsideration. 5

The facts are as follows:

Catolico was hired as a pharmacist by petitioner Waterous Drug Corporation(hereafter WATEROUS) on 15 August 1988.

On 31 July 1989, Catolico received a memorandum 6 from WATEROUS VicePresident-General Manager Emma R. Co warning her not to dispense medicine toemployees chargeable to the latter's accounts because the same was a prohibitedpractice. On the same date, Co issued another memorandum 7 to Catolico warningher not to negotiate with suppliers of medicine without consulting the PurchasingDepartment, as this would impair the company's control of purchases and, besidesshe was not authorized to deal directly with the suppliers.

As regards the first memorandum, Catolico did not deny her responsibility butexplained that her act was "due to negligence," since fellow employee Irene Soliven"obtained the medicines in bad faith and through misrepresentation when sheclaimed that she was given a charge slip by the Admitting Dept." Catolico thenasked the company to look into the fraudulent activities of Soliven. 8


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In a memorandum 9 dated 21 November 1989, WATEROUS Supervisor Luzviminda E.Bautro warned Catolico against the "rush delivery of medicines without the properdocuments."

On 29 January 1990, WATEROUS Control Clerk Eugenio Valdez informed Co that henoticed an irregularity involving Catolico and Yung Shin Pharmaceuticals, Inc.

(hereafter YSP), which he described as follows:

. . . A case in point is medicine purchased under our Purchase Order (P.O.)No. 19045 with YSP Sales Invoice No. 266 representing purchase of ten (10)bottles of Voren tablets at P384.00 per unit. Previews P.O.s issued to YSP, Inc.showed that the price per bottle is P320.00 while P.O. No. 19045 is priced atP384.00 or an over price of P64.00 per bottle (or total of P640.00). WDRCpaid the amount of P3,840.00 thru MBTC Check No. 222832 dated December15, 1988. Verification was made to YSP, Inc. to determine the discrepancyand it was found that the cost per bottle was indeed overpriced. YSP, Inc.Accounting Department (Ms. Estelita Reyes) confirmed that the differencerepresents refund of jack-up price of ten bottles of Voren tablets per salesinvoice no. 266 as per their check voucher no. 629552 (shown to theundersigned), which was paid to Ms. Catolico through China Bank check no.892068 dated November 9, 1989 . . . .

The undersigned talked to Ms. Catolico regarding the check but she deniedhaving received it and that she is unaware of the overprice. However, uponconversation with Ms. Saldana, EDRC Espana Pharmacy Clerk, she confirmedthat the check amounting to P640.00 was actually received by Ms. Catolico.As a matter of fact, Ms. Catolico even asked Ms. Saldana if she opened theenvelope containing the check but Ms. Saldana answered her "talagangganyan, bukas." It appears that the amount in question (P640.00) had been

pocketed by Ms. Catolico.

10

Forthwith, in her memorandum 11 dated 37 January 1990, Co asked Catolico toexplain, within twenty-four hours, her side of the reported irregularity. Catolicoasked for additional time to give her explanation, 12 and she was granted a 48-hourextension from 1 to 3 February 1990. However, on 2 February 1990, she wasinformed that effective 6 February 1990 to 7 March 1990, she would be placed onpreventive suspension to protect the interests of the company. 13

In a letter dated 2 February 1990, Catolico requested access to the file containingSales Invoice No. 266 for her to be able to make a satisfactory explanation. In saidletter she protested Saldaa's invasion of her privacy when Saldaa opened an

envelope addressed to Catolico.14

In a letter 15 to Co dated 10 February 1990, Catolico, through her counsel, explainedthat the check she received from YSP was a Christmas gift and not a "refund ofoverprice." She also averred that the preventive suspension was ill-motivated, as itsprang from an earlier incident between her and Co's secretary, Irene Soliven.


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On 5 March 1990, WATEROUS Supervisor Luzviminda Bautro, issued amemorandum 16 notifying Catolico of her termination; thus:

We received your letter of explanation and your lawyer's letter dated Feb. 2,1990 and Feb. 10, 1990 respectively regarding our imposition of preventivesuspension on you for acts of dishonesty. However, said letters failed to rebut

the evidences [sic] in our possession which clearly shows that as aPharmacist stationed at Espana Branch, you actually made Purchase Ordersat YSP Phils., Inc. for 10 bottles of Voren tablets at P384.00/bottle withprevious price of P320.00/bottle only. A check which you received in theamount of P640.00 actually represents the refund of over price of saidmedicines and this was confirmed by Ms. Estelita Reyes, YSP Phils., Inc.Accounting Department.

Your actuation constitutes an act of dishonesty detrimental to the interest ofthe company. Accordingly, you are hereby terminated effective March 8,1990.

On 5 May 1990, Catolico filed before the Office of the Labor Arbiter a complaint forunfair labor practice, illegal dismissal, and illegal suspension. 17

In his decision 18 of 10 May 1993, Labor Arbiter Alex Arcadio Lopez found no proof ofunfair labor practice against petitioners. Nevertheless, he decided in favor ofCatolico because petitioners failed to "prove what [they] alleged as complainant'sdishonesty," and to show that any investigation was conducted. Hence, thedismissal was without just cause and due process. He thus declared the dismissaland suspension illegal but disallowed reinstatement, as it would not be to the bestinterest of the parties. Accordingly, he awarded separation pay to Catolicocomputed at one-half month's pay for every year of service; back wages for one

year; and the additional sum of P2,000.00 for illegal suspension "representing 30days work." Arbiter Lopez computed the award in favor of Catolico as follows:

30 days Preventive Suspension P2,000.00Backwages 26,858.501/12 of P26,858.50 2,238.21Separation pay (3 years) 4,305.15

TOTAL AWARD P35,401.86

Petitioners seasonably appealed from the decision and urged the NLRC to set it

aside because the Labor Arbiter erred in finding that Catolico was denied dueprocess and that there was no just cause to terminate her services.

In its decision 19 of 30 September 1993, the NLRC affirmed the findings of the LaborArbiter on the ground that petitioners were not able to prove a just cause forCatolico's dismissal from her employment. It found that petitioner's evidenceconsisted only of the check of P640.00 drawn by YSP in favor of complainant, whichher co-employee saw when the latter opened the envelope. But, it declared that the


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check was inadmissible in evidence pursuant to Sections 2 and 3(1 and 2) of ArticleIII of the Constitution. 20 It concluded:

With the smoking gun evidence of respondents being rendered inadmissible,by virtue of the constitutional right invoked by complainants, respondents'case falls apart as it is bereft of evidence which cannot be used as a legal

basis for complainant's dismissal.

The NLRC then dismissed the appeal for lack of merit, but modified the dispositiveportion of the appealed decision by deleting the award for illegal suspension as thesame was already included in the computation of the aggregate of the awards inthe amount of P35,401.86.

Their motion for reconsideration having been denied, petitioners filed this specialcivil action for certiorari, which is anchored on the following grounds:

I. Public respondent committed grave abuse of discretion in its

findings of facts.

II. Due process was duly accorded to private respondent.

III. Public respondent gravely erred in applying Section 3, ArticleIII of the 1987 Constitution.

As to the first and second grounds, petitioners insist that Catolico had beenreceiving "commissions" from YSP, or probably from other suppliers, and that thecheck issued to her on 9 November 1989 was not the first or the last. They alsomaintained that Catolico occupied a confidential position and that Catolico's receiptof YSP's check, aggravated by her "propensity to violate company rules,"

constituted breach of confidence. And contrary to the findings of NLRC, Catolico wasgiven ample opportunity to explain her side of the controversy.

Anent the third ground, petitioners submit that, in light of the decision in the Peoplev. Marti, 21 the constitutional protection against unreasonable searches and seizuresrefers to the immunity of one's person from interference by government and cannotbe extended to acts committed by private individuals so as to bring it within theambit of alleged unlawful intrusion by the government.

In its Manifestation in Lieu of Comment, the Office of the Solicitor General (OSG)disagreed with the NLRC's decision, as it was of the persuasion that (a) theconclusions reached by public respondent are inconsistent with its findings of fact;

and (b) the incident involving the opening of envelope addressed to privaterespondent does not warrant the application of the constitutional provisions. Itobserved that Catolico was given "several opportunities" to explain her side of thecheck controversy, and concluded that the opportunities granted her and hersubsequent explanation "satisfy the requirements of just cause and due process."

The OSG was also convinced that Catolico's dismissal was based on just cause andthat Catolico's admission of the existence of the check, as well as her "lame excuse"that it was a Christmas gift from YSP, constituted substantial evidence of


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dishonesty. Finally, the OSG echoed petitioners' argument that there was noviolation of the right of privacy of communication in this case, 22 adding thatpetitioner WATEROUS was justified in opening an envelope from one of its regularsuppliers as it could assume that the letter was a business communication in whichit had an interest.

In its Comment which we required to be filed in view of the adverse stand of theOSG, the NLRC contends that petitioners miserably failed to prove their claim that itcommitted grave abuse of discretion in its findings of fact. It then prays that wedismiss this petition.

In her Comment, Catolico asserts that petitioners' evidence is too "flimsy" to justifyher dismissal. The check in issue was given to her, and she had no duty to turn itover to her employer. Company rules do not prohibit an employee from acceptinggifts from clients, and there is no indication in the contentious check that it wasmeant as a refund for overpriced medicines. Besides, the check was discovered inviolation of the constitutional provision on the right to privacy and communication;hence, as correctly held by the NLRC, it was inadmissible in evidence.

Catolico likewise disputes petitioners' claim that the audit report and her initialresponse that she never received a check were sufficient to justify her dismissal.When she denied having received a check from YSP, she meant that she did notreceive any refund of overprice, consistent with her position that what she receivedwas a token gift. All that can be gathered from the audit report is that there wasapparently an overcharge, with no basis to conclude that Catolico pocketed theamount in collusion with YSP. She thus concluded that her dismissal was based on amere suspicion.

Finally, Catolico insists that she could not have breached the trust and confidence of

WATEROUS because, being merely a pharmacist, she did not handle "confidentialinformation or sensitive properties." She was doing the task of a saleslady: sellingdrugs and making requisitions when supplies were low.

A thorough review of the record leads us to no other conclusion than that, except asto the third ground, the instant petition must fail.

Concededly, Catolico was denied due process. Procedural due process requires thatan employee be apprised of the charge against him, given reasonable time toanswer the charge, allowed ample opportunity to be heard and defend himself, andassisted by a representative if the employee sodesires. 23 Ample opportunity connotes every kind of assistance that management

must accord the employee to enable him to prepare adequately for his defense,including legal representation. 24

In the case at bar, although Catolico was given an opportunity to explain her side,she was dismissed from the service in the memorandum of 5 March 1990 issued byher Supervisor after receipt of her letter and that of her counsel. No hearing wasever conducted after the issues were joined through said letters. The Supervisor'smemorandum spoke of "evidences [sic] in [WATEROUS] possession," which were


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not, however, submitted. What the "evidences" [sic] other than the sales invoiceand the check were, only the Supervisor knew.

Catolico was also unjustly dismissed. It is settled that the burden is on the employerto prove just and valid cause for dismissing an employee, and its failure todischarge that burden would result in a finding that the dismissal is

unjustified. 25 Here, WATEROUS proved unequal to the task.

It is evident from the Supervisor's memorandum that Catolico was dismissedbecause of an alleged anomalous transaction with YSP. Unfortunately forpetitioners, their evidence does not establish that there was an overcharge. ControlClerk Eugenio C. Valdez, who claims to have discovered Catolico's inappropriatetransaction, stated in his affidavit: 26

4. My findings revealed that on or before the month of July 31, 1989, Ms.Catolico in violation of the [company] procedure, made an under the tabledeal with YSP Phils. to supply WDRC needed medicines like Voren tablets at a

jack-up price of P384.00 per bottle of 50 mg. which has a previous price ofonly P320.00;

5. I verified the matter to YSP Phils. to determine the discrepancy and I foundout that the cost per bottle was indeed overpriced. The AccountingDepartment of YSP Phils. through Ms. Estelita Reyes confirmed that there wasreally an overprice and she said that the difference was refunded throughtheir check voucher no. 629552 which was shown to me and the payee isMelodia Catolico, through a China Bank Check No. 892068 dated November9, 1989.

It clearly appears then that Catolico's dismissal was based on hearsay information.

Estelita Reyes never testified nor executed an affidavit relative to this case; thus,we have to reject the statements attributed to her by Valdez. Hearsay evidencecarries no probative value. 27

Besides, it was never shown that petitioners paid for the Voren tablets. While Valdezinformed Co, through the former's memorandum 28 of 29 January 1990, thatWATEROUS paid YSP P3,840.00 "thru MBTC Check No. 222832," the said check wasnever presented in evidence, nor was any receipt from YSP offered by petitioners.

Moreover, the two purchase orders for Voren tablets presented by petitioners do notindicate an overcharge. The purchase order dated 16 August 1989 29 stated that theVoren tablets cost P320.00 per box, while the purchase order dated 5 October

1989 30 priced the Voren tablets at P384.00 per bottle. The difference in price maythen be attributed to the different packaging used in each purchase order.

Assuming that there was an overcharge, the two purchase orders for the Vorentablets were recommended by Director-MMG Mario R. Panuncio, verified by AVP-MNG Noli M. Lopez and approved by Vice President-General Manager Emma R. Co.

The purchase orders were silent as to Catolico's participation in the purchase. If theprice increase was objectionable to petitioners, they or their officers should have


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disapproved the transaction. Consequently, petitioners had no one to blame fortheir predicament but themselves. This set of facts emphasizes the exceedinglyincredible situation proposed by petitioners. Despite the memorandum warningCatolico not to negotiate with suppliers of medicine, there was no proof that sheever transacted, or that she had the opportunity to transact, with the said suppliers.Again, as the purchase orders indicate, Catolico was not at all involved in the sale of

the Voren tablets. There was no occasion for Catolico to initiate, much less benefitfrom, what Valdez called an "under the table deal" with YSP.

Catolico's dismissal then was obviously grounded on mere suspicion, which in nocase can justify an employee's dismissal. Suspicion is not among the valid causesprovided by the Labor Code for the termination ofemployment; 31 and even the dismissal of an employee for loss of trust andconfidence must rest on substantial grounds and not on the employer'sarbitrariness, whims, caprices, or suspicion. 32 Besides, Catolico was not shown to bea managerial employee, to which class of employees the term "trust andconfidence" is restricted. 33

As regards the constitutional violation upon which the NLRC anchored its decision,we find no reason to revise the doctrine laid down in People vs. Marti 34 that the Billof Rights does not protect citizens from unreasonable searches and seizuresperpetrated by private individuals. It is not true, as counsel for Catolico claims, thatthe citizens have no recourse against such assaults. On the contrary, and as saidcounsel admits, such an invasion gives rise to both criminal and civil liabilities.

Finally, since it has been determined by the Labor Arbiter that Catolico'sreinstatement would not be to the best interest of the parties, he correctly awardedseparation pay to Catolico. Separation pay in lieu of reinstatement is computed atone month's salary for every year of service. 35 In this case, however, Labor Arbiter

Lopez computed the separation pay at one-half month's salary for every year ofservice. Catolico did not oppose or raise an objection. As such, we will uphold theaward of separation pay as fixed by the Labor Arbiter.

WHEREFORE, the instant petition is hereby DISMISSED and the challenged decisionand resolution of the National Labor Relations Commission dated 30 September1993 and 2 December 1993, respectively, in NLRC-NCR CA No. 005160-93 areAFFIRMED, except as to its reason for upholding the Labor Arbiter's decision, viz.,that the evidence against private respondent was inadmissible for having beenobtained in violation of her constitutional rights of privacy of communication andagainst unreasonable searches and seizures which is hereby set aside.

Costs against petitioners.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila


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EN BANC

G.R. Nos. 148712-15 January 21, 2004

PEOPLE OF THE PHILIPPINES, appellee,vs.DOMINADOR CACHOLA y SALAZAR, ERNESTO AMAY y PASCUA, NESTORMARQUEZ y MANUEL, BENJAMIN LAEGEN y CAMADO, RODOLFO SAGUN y

JIMENEZ, RODEMIR GUERZO y LATAOAN, MELLKE IGNACIO y SALVADOR,and NELSON C. ECHABARIA, appellants.

D E C I S I O N

PER CURIAM:

In just an instant, 12-year-old Jessie E. Barnachea lost his mother, an elder brother,an uncle, and a cousin as a result of the carnage that took place at around 6:00

p.m. of 28 December 1999 right inside their house in Barangay Calumbaya, Bauang,La Union. Their horrible death was attributed to herein appellants, who, however,pleaded not guilty to the four separate informations for murder.

At the trial before the Regional Trial Court of Bauang, La Union, Branch 67, theprosecution presented as witnesses Jessie and his brother and neighbors, as well asseveral police officers. Their testimonies disclose as follows:

Jessie was about to leave their house to watch cartoons in his uncles housenext door when two armed men suddenly entered the front door of theirhouse. The two ordered Jessie to drop to the floor, and then hit him in theback with the butt of a long gun. Without much ado, the intruders shot to

death Jessies uncle, Victorino V. Lolarga, who was then in the living room.Jessie forthwith crawled and hid under a bed, from where he saw the feet of athird man who had also entered the house. The men entered the kitchen andcontinued shooting. When the rampage was over and after the malefactorshad already departed, Jessie came out of his hiding place and proceeded tothe kitchen. There he saw his mother, Carmelita Barnachea; his brother FelixBarnachea, Jr.; and his cousin Rubenson Abance - all slaughtered.1

Meanwhile, Jessies eldest brother, Robert E. Barnachea, was in his uncles housewatching television with his aunt and young cousins when he sensed a commotionoutside. When Robert went out to see what was transpiring, he saw armed menrunning towards their house. One of them turned and pointed a gun at him,

prompting him to scamper away and hide at the back of his uncles house. Fromwhere he was hiding, he noticed a stainless jeep, with blue rim and marking "fruitsand vegetables dealer," parked in front of the fence of their house. Standing behindthe jeep were three armed men wearing bonnets, with only their nose and eyesexposed. In the next instant, he heard gunshots and then saw men running from hishouse. The men hurriedly boarded the jeep and left the place.2


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The jeep did not go unnoticed by the neighbors. Russel Tamba was with somefriends in front of Rodas Store, around 100 meters away from the Barnachearesidence, when the jeep passed by very slowly going towards the Barnachearesidence. According to him, the jeep had a marking "El Shaddai" in front, asidefrom the marking "fruits and vegetables dealer" on the sides.3 Francisco Andradawas also talking with some people in front of the Calumbaya Barangay Hall, only

five meters away from Rodas Store, when he noticed that jeep, with the "ElShaddai" marking, pass by.4 Not long after, both heard gunshots and later saw the

jeep pass by again, this time running very fast.5

The incident was immediately reported to the police, and the description of the "ElShaddai" jeep used by the malefactors was relayed through radio to the policestations in the province of La Union.6 At around 7:45 p.m., the jeep was interceptedat a checkpoint set up in the highway by the police force in Aringay, La Union. Onboard were the eight appellants. No firearms were found in the vehicle. The jeepand the eight appellants were thereafter brought to the Aringay police station andthen turned over to the Bauang police.7

When the Chief of Police of Bauang Benjamin M. Lusad was informed of theapprehension of the eight appellants, he went to the Barnachea residence, wherehe came to know that Jessie was an eyewitness. He invited Jessie to ride with him topick up the suspects. While Lusad was supervising the boarding of the suspects intothe vehicle, Jessie was in another police vehicle with PO3 Juan Casern, Jr., to seewhether he could recognize any one of the eight men. Jessie pointed to DominadorCachola and Ernesto Amay as the two armed men who entered his house and killedhis relatives. During the police line-up at the Bauang Police Station, Jessie againidentified Cachola and Amay as the assailants.8 The next day, when the policeconducted the third confirmatory investigation, which was to present Jessie withphotographs of the suspects, Jessie identified the two for the third time.

The eight appellants were thereafter subjected to paraffin test. But only the righthands of Cachola and Amay yielded positive results for gunpowder nitrates.9

The Death Certificates attest to the gruesome and merciless killings. Carmelitasustained one gunshot wound on her head and three on her body;10 Felix, Jr., twogunshot wounds on his head and on his body, and stab wounds on his chest andarms;11 Victorino, two gunshot wounds on his head, three on his body, and with hispenis excised;12Rubenson, one gunshot wound on his head and a stab wound thatlacerated his liver.13

The testimonies of the other prosecution witnesses were dispensed with upon the

stipulation by the public prosecutor and the counsels for the appellants that thenature of their testimonies would be that (1) PO3 Juan Casern, Jr., was inside thepolice car with Jessie when the latter recognized appellants Cachola and Amay; (2)Mark Garcia would corroborate the testimony of Felix Andrada regarding thedescription of the jeep; (3) Felix Barnachea, Sr., suffered actual damages amountingto P177,000 as a result of the death of his wife Carmelita and son Felix, Jr.; (4) apolice officer of Aringay, La Union, flagged down the jeep at the checkpoint and sawthe appellants on board; and (5) a police officer of Bauang, La Union, would identifythe pictures taken at the crime scene.


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After the prosecution had rested its case, the defense counsels orally asked forleave of court to file a demurrer to evidence. The trial court denied the motionoutright and set the schedule for the presentation of the evidence for thedefense.14 Instead of presenting their evidence, however, the appellants, throughtheir respective counsels, filed a Demurrer to Evidence15 even without leave ofcourt.

On 26 September 2000, the trial court rendered a decision16 (1) convicting (a)Cachola and Amay, as principals, of four counts of murder and sentencing them tosuffer four counts of the supreme penalty of death; and (b) Marquez, Laegen,Sagun, Guerzo, Ignacio, and Echabaria, as accomplices, of four counts of murderand sentencing them to suffer four counts of the indeterminate penalty of eightyears of prision mayor as minimum to twelve years and one day of reclusiontemporal as maximum; and (2) ordering all of them to pay the heirs of the victims atotal of P300,000 as death indemnity; P200,000 as moral damages; and P177,000as actual or compensatory damages.

Before us on automatic review, appellants Cachola, Sagun, Ignacio, and Marquezcontend that the trial court erred (1) in finding conspiracy among them and their co-appellants; (2) in finding proof beyond reasonable doubt; and (3) in not dismissingthe informations outright despite a motion before arraignment, there having been aclear illegal arrest and denial of due process.

As for appellants Amay, Guerzo, Laegen, and Echabaria, they assert that the trialcourt erred (1) in finding appellant Amay guilty beyond reasonable doubt asprincipal in the crime of murder; and (2) in not acquitting appellants Guerzo,Laegen, and Echabaria for insufficiency of evidence and on reasonable doubt.

In its Consolidated Reply Brief, the Office of the Solicitor General (OSG)

recommends the affirmance of the conviction for murder of appellants Cachola andAmay, and the acquittal of the other appellants for failure of the prosecution toestablish their identity and participation beyond reasonable doubt.

We agree with the recommendation of the OSG to acquit appellants Sagun, Ignacio,Marquez, Guerzo, Laegen, and Echabaria. Upon a thorough review of the records ofthe case, we found nothing that would show their participation in the commission ofthe crimes. Not one of the prosecution witnesses identified them as among themalefactors who were at the Barnachea residence on that fateful day. Surprisingly,even as the trial court declared that the prosecution failed to establish the actualparticipation of the other appellants in the commission of the crime, it found that"they cooperated in the execution of the offense by previous or simultaneous

acts."17

It appears, however, that the only reason why they were implicated wasthat they were with Cachola and Amay on board the jeep that was intercepted inAringay, La Union, almost two hours after the killings. What constitute previous orsimultaneous acts that would make them liable as accomplices are not found in thedecision or in any evidence on record.

To hold a person liable as an accomplice, two elements must concur: (1) communityof design, which means that the accomplice knows of, and concurs with, thecriminal design of the principal by direct participation; and (2) the performance by


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the accomplice of previous or simultaneous acts that are not indispensable to thecommission of the crime.18 In the present case, neither element was proved. Themere presence of the six appellants in the company of appellants Cachola andAmay on board a jeep is not evidence of their knowledge of, or assent to, thecriminal design to perpetuate the massacre.19 That they were found to be withappellants Cachola and Amay almost two hours after the commission of the crime

does not constitute previous or simultaneous act. Absent a link between the crimeand their presence in the jeep two hours later, we cannot consider theirparticipation even as accessories to the crime.

It is a basic evidentiary rule in criminal law that the prosecution has the burden ofproving the guilt of the accused beyond reasonable doubt.20 If the prosecution failsto discharge that burden, the accused need not present any evidence. 21 Thus, forutter lack of evidence against the six appellants, their acquittal is in order.

However, as regards appellants Cachola and Amay, we concur with the trial courtand the OSG that the prosecution had presented sufficient evidence to prove theirguilt beyond reasonable doubt. The credible testimony of, and positive identificationby, Jessie Barnachea, which are corroborated by forensic evidence, i.e., the positiveresults of the paraffin test on the right hands of Cachola and Amay, constitutesufficient evidence to sustain their conviction.

As to the credibility of Jessie Barnachea, the trial court made the followingobservations:

The Court observed the demeanor of Jessie Barnachea on the witness standand ... did not observe any indication of falsehood in his narration. He showedobvious readiness to answer questions propounded to him. His reactions andanswers to the questions displayed evident respect for truth. He remained

consistent on cross-examination. He positively identified accused Amay andCachola as the one who shot and killed his family. The Court did not observeany hesitancy or indication of uncertainty - and his recital of the eventsappeared spontaneous.22

There is nothing on record that gives this Court cause to interfere with the trialcourts determination of the credibility of Jessie. Indeed, his testimony wasunwavering despite attempts of the defense counsels to confuse or trap him. Thealleged inconsistency between Jessies sworn statement and testimony on thenumber of malefactors, if at all, does not detract from his credibility. That Jessie sawtwo armed men enter his house is clear. While the defense claims ambiguity as tothe presence of a third man, Jessies statement easily reveals that the third man

was not immediately mentioned because he (the third man) only followed the twoand Jessie did not see his face.

It is also pointed out that Jessies identification of Cachola and Amay runs counter toRoberts testimony that the armed men were wearing bonnets. Again, from theirtestimonies, it is apparent that the brothers saw different men. Besides, Robert alsostated that one of the men did not have his head covered. As to the allegedimprobability of the lookouts wearing bonnets while the principal shooters wereunmasked, or of the malefactors sparing Jessie, suffice it to say that such


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circumstances are not so incredible as to cast reasonable doubt on the truth of thenarrated events.

In sum, none of the alleged inconsistencies, minor as they are, could leave us withdoubt that Jessie was present in his house and saw armed men shoot his relatives.Barely two hours had passed since he witnessed the gruesome murders when Jessie

identified appellants Cachola and Amay as the malefactors. Reasonably, thememory of their faces was still fresh on his mind. Moreover, Jessie identified the twoappellants two times more at the police station and once in open court, and henever faltered in his identification.

Significantly, the appellants have not imputed any ill motive to Jessie for testifyingagainst Cachola and Amay. Where there is no evidence to show a doubtful reason orimproper motive why a prosecution witness should testify against the accused orfalsely implicate him in a crime, the said testimony is trustworthy and should beaccorded full faith and credit.23

In all, there does not appear on record to be "some fact or circumstance of weightand influence which the trial court has overlooked or the significance of which it hasmisapprehended or misinterpreted. "24 We rely, therefore, on the competence of thetrial court to decide the question of credibility of the witnesses, having heard themand observed their deportment and manner of testifying during the trial." 25

The reliance by appellant Cachola on People v. Teehankee26 is misplaced. In thatcase the negative result of the paraffin test did not preclude a finding of guilt by thetrial court, the reason being that the accused was tested for the presence of nitratesonly after more than 72 hours had lapsed from the time of the shooting. In thepresent case, the paraffin test was conducted on the same night the shootingincident occurred; hence, the lapse of only a few hours increases its reliability.

While the presence of nitrates on accuseds hand is not conclusive of guilt, itbolsters the testimony of an eyewitness that the accused fired a gun.

As to whether the trial court erred in not allowing the appellants to presentevidence after filing their demurrer to evidence without leave of court, then Section15, Rules 119 of the Rules of Court27 is clear on the matter, thus:

SEC. 15. - Demurrer to evidence. - After the prosecution has rested its case,the court may dismiss the case on the ground of insufficiency of evidence: (1)on its own initiative after giving the prosecution an opportunity to be heard;or (2) on motion of the accused filed with prior leave of court.

If the court denies the motion for dismissal, the accused may adduceevidence in his defense. When the accused files such motion todismiss without express leave of court, he waives the right to presentevidence and submits the case for judgment on the basis of the evidence forthe prosecution. (Underscoring supplied).

The filing by the appellants of a demurrer to evidence in the absence of prior leaveof court was a clear waiver of their right to present their own evidence. To sustain


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their claim that they had been denied due process because the evidence theybelatedly sought to offer would have exculpated them would be to allow them to"wager on the outcome of judicial proceedings by espousing inconsistent viewpointswhenever dictated by convenience."28 Furthermore, it cannot be said that thewaiver was not clear. The trial court postponed the hearings on the motion fordemurrer, even after leave of court had been denied, and then granted extensions

to Amay until he finally adopted the position of his co-appellants. At no time otherthan in this automatic review was there any attempt that is contrary to the waiverof the presentation of evidence.

Neither can the question of the legality of the warrantless arrest of the appellantsbe raised for the first time before this Court. As arrests fall into the question of theexercise by the trial court of its jurisdiction over the person of the accused, thequestion should have been raised prior to their arraignment. That the appellantsobjected to the arrests prior to the arraignment29 is unsubstantiated. Their claimthat they requested an extension of time to file a motion to quash the informationor to dismiss the case,30 which the trial court allegedly denied, cannot save the dayfor them. The fact remains that before arraignment, no such motion was filed. Evenassuming that their arrest was illegal, their act of entering a plea during theirarraignment constituted a waiver of their right to question their arrest.31

We now discuss the circumstances that attended the commission of the crimes.

The information alleges the qualifying circumstances of treachery and evidentpremeditation. There is no doubt that the killings were done with treachery,considering that the assailants suddenly barged in and immediately went on ashooting rampage. We have time and again ruled that when the attack is suddenand unexpected, there is treachery.32The presence of even this single qualifyingcircumstance is sufficient to qualify the killing to murder.33

As to the qualifying circumstance of evident premeditation, we find the samelacking, for there is no evidence of planning or preparation to kill, much less of thetime when the plot was conceived.34

It may not be amiss to mention that the death certificate of Victorino Lolargareveals that his penis was excised. One may wonder whether such circumstanceamounted to ignominy that can aggravate the offense.

For ignominy to be appreciated, it is required that the offense be committed in amanner that tends to make its effect more humiliating, thus adding to the victimsmoral suffering. Where the victim was already dead when his body or a part thereof

was dismembered, ignominy cannot be taken against the accused.35

In this case,the information states that Victorinos sexual organ was severed after he was shotand there is no allegation that it was done to add ignominy to the natural effects ofthe act. We cannot, therefore, consider ignominy as an aggravating circumstance.

However, as regards Carmelita and Felix, Jr., we appreciate the aggravatingcircumstance of dwelling, since it was alleged in the information and proved during


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the trial that they were killed inside their house. Appellants Cachola and Amay,therefore, violated the sanctity of the said victims home.

Article 248 of the Revised Penal Code provides that the penalty for murder isreclusion perpetua to death. In conjunction, Article 63 of the Revised Penal Codeprovides that when the law prescribes two indivisible penalties, the greater penalty

shall be imposed when in the commission of the deed, there is present oneaggravating circumstance. In the cases of Carmelita and Felix Jr., in Criminal CasesNos. 2324 and 2325, there is one aggravating circumstance and no mitigatingcircumstance to offset it; hence, the higher penalty of death imposed by the trialcourt stands.

Three members of the Court maintain their adherence to the separate opinionsexpressed in People vs. Echegaray36 that Republic Act No. 7659, insofar as itprescribes the penalty of death, is unconstitutional; nevertheless they submit to theruling of the majority that the law is constitutional and that the death penaltyshould accordingly be imposed.

But in the cases of Victorino and Rubenson, in Criminal Cases Nos. 2323 and 2326,there being no aggravating or mitigating circumstance, the penalty should bereclusion perpetua, which is the lower of the two indivisible penalties prescribed bylaw.

As regards the civil liability of appellants Cachola and Amay, we hold them jointlyand severally liable to pay the heirs of each of the victims death indemnity andmoral damages each in the amount of P50,000, or a total of P400,000. They arefurther ordered to pay the respective heirs of Carmelita and Felix Jr. exemplarydamages in the amount of P25,000, or a total of P50,000, in view of the presence ofone aggravating circumstance in the commission of the crime against the said

victims. As to the claim for damages by Felix Barnachea Sr. in the amount ofP177,000, we sustain the same even if only a list of expenses,37 not official receipts,was submitted because such amount was admitted by the defense during thetrial.38 Moreover, although there is no evidence as to the amount spent as a result ofthe death of Victorino and Rubenson, their respective heirs shall be awardedtemperate damages in the amount of P25,000, since they clearly incurred funeralexpenses.39

WHEREFORE, the assailed decision dated 26 September 2000 of the Regional TrialCourt of Bauang, La Union, Branch 67, is hereby AFFIRMED insofar as DOMINADORCACHOLA y SALAZAR and ERNESTO AMAY y PASCUA are found GUILTY of fourcounts of murder in Criminal Cases Nos. 2323-26 and sentenced to suffer the

supreme penalty of death in Criminal Cases Nos. 2324 and 2325. The said decisionis, however, MODIFIED in that they are (1) sentenced to suffer the penalty ofreclusion perpetua, instead of death, in Criminal Cases Nos. 2323 and 2326; and (2)ordered to pay, jointly and severally, the following damages:

a. P50,000 as death indemnity in favor of the heirs of each victim, or a totalof P200,000;


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b. P50,000 as moral damages in favor of the heirs of each victim, or a total ofP200,000;

c. P25,000 as exemplary damages in favor of the respective heirs ofCarmelita Barnachea and Felix Barnachea Jr., or a total of P50,000;

d. P177,000 as actual damages in favor of the heirs of Carmelita Barnacheaand Felix Barnachea Jr.; and

e. P25,000 as temperate damages in favor of the respective heirs ofRubenson Abance and Victorino Lolarga, or a total of P50,000.

The assailed decision is REVERSED insofar as appellants NESTOR MARQUEZ yMANUEL, BENJAMIN LAEGEN y CAMADO, RODOLFO SAGUN y JIMENEZ, RODEMIRGUERZO y LATAOAN, MELLKE IGNACIO y SALVADOR, and NELSON C. ECHABARIA areconcerned, and another one is hereby rendered (1) acquitting them of the crimescharged for insufficiency of evidence; (2) ordering their immediate release from

confinement unless their further detention is warranted by virtue of any lawfulcause; and (3) directing the Director of the Bureau of Corrections to submit a reporton their release within five days from notice hereof.

Costs de oficio.

SO ORDERED.

Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-

Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna,

and Tinga, JJ., concur.

SECOND DIVISION

[G.R. No. 163858. June 28, 2005]

UNITED LABORATORIES, INC., Petitioner, vs. ERNESTO ISIP and/orSHALIMAR PHILIPPINES and/or OCCUPANTS, Shalimar Building, No.

1571, Aragon Street, Sta. Cruz, Manila,Respondents.

D E C I S I O N

CALLEJO, SR.,J.:

Rolando H. Besarra, Special Investigator III of the National Bureau of Investigation(NBI), filed an application, in the Regional Trial Court (RTC) of Manila, for theissuance of a search warrant concerning the first and second floors of the ShalimarBuilding, located at No. 1571, Aragon Street (formerly No. 1524, Lacson Avenue,Sta. Cruz, Manila) occupied and/or used by Shalimar Philippines, owned/operated by


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Ernesto Isip; and for the seizure of the following for violation of Section 4(a), inrelation to Section 8, of Republic Act (R.A.) No. 8203:

a. Finished or unfinished products of UNITED LABORATORIES (UNILAB),particularly REVICON multivitamins;

b. Sundry items such as tags, labels, boxes, packages, wrappers,

receptacles, advertisements and other paraphernalia used in the offeringfor sale, sale and/or distribution of counterfeit REVICON multivitamins;

c. Sales invoices, delivery receipts, official receipts, ledgers, journals,purchase orders and all other books of accounts and documents used inrecording the manufacture and/or importation, distribution and/or sales ofcounterfeit REVICON multivitamins.[1]chanroblesvirtuallawlibrary

The application was docketed as People v. Ernesto Isip, et al., Respondents, SearchWarrant Case No. 04-4916 and raffled to Branch 24 of the court. Appended theretowere the following: (1) a sketch[2] showing the location of the building to besearched; (2) the affidavit[3] of Charlie Rabe of the Armadillo Protection andSecurity Agency hired by United Laboratories, Inc. (UNILAB), who allegedly saw themanufacture, production and/or distribution of fake drug products such as Reviconby Shalimar Philippines; (3) the letter-request of UNILAB, the duly licensed andexclusive manufacturer and/or distributor of Revicon and Disudrin, for themonitoring of the unauthorized production/manufacture of the said drugs and, ifwarranted, for their seizure; (4) the letter-complaint[4] of UNILAB issued through itsDirector of the Security and Safety Group; and (5) the joint affidavit[5] of NBI AgentsRoberto Divinagracia and Rolando Besarra containing the following allegations:

2. When learned that an Asset was already placed by ARMADILLOPROTECTIVE AND SECURITY AGENCY named CHARLIE RABE, who wasrenting a room since November 2003, at the said premises located at No.1571 Aragon St., Sta. Cruz, Manila. MR. RABE averred that the owner of

the premises is a certain MR. ERNESTO ISIP and that the said premiseswhich is known as SHALIMAR PHILIPPINES, Shalimar Building, are beingused to manufacture counterfeit UNILAB products, particularly REVICONmultivitamins, which was already patented by UNILAB since 1985;

3. Upon verification of the report, we found out that the said premises is asix-story structure, with an additional floor as a penthouse, and coloredred-brown. It has a tight security arrangement wherein non-residents arenot allowed to enter or reconnoiter in the premises;

4. We also learned that its old address is No. 1524 Lacson Avenue, Sta.Cruz, Manila, and has a new address as 1571 Aragon St., Sta. Cruz,Manila; and that the area of counterfeiting operations are the first and

second floors of Shalimar Building;

5. Since we cannot enter the premises, we instructed the Asset to takepictures of the area especially the places wherein the clandestinemanufacturing operations were being held. At a peril to his well-being andsecurity, the Asset was able to take photographs herein incorporated intothis Search Warrant Application.[6]chanroblesvirtuallawlibrary
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A representative from UNILAB, Michael Tome, testified during the hearing on theapplication for the search warrant. After conducting the requisite searchingquestions, the court granted the application and issued Search Warrant No. 04-4916dated January 27, 2004, directing any police officer of the law to conduct a searchof the first and second floors of the Shalimar Building located at No. 1571, AragonStreet, Sta. Cruz, Manila. The court also directed the police to seize the following

items:

a. Finished or unfinished products of UNITED LABORATORIES (UNILAB),particularly REVICON multivitamins;

b. Sundry items such as tags, labels, boxes, packages, wrappers,receptacles, advertisements and other paraphernalia used in the offeringfor sale, sale and/or distribution of counterfeit REVICON multivitamins;

c. Sales invoices, delivery receipts, official receipts, ledgers, journals,purchase orders and all other books of accounts and documents used inrecording the manufacture and/or importation, distribution and/or sales ofcounterfeit REVICON multivitamins.[7]chanroblesvirtuallawlibrary

The court also ordered the delivery of the seized items before it, together with atrue inventory thereof executed under oath.

The search warrant was implemented at 4:30 p.m. on January 27, 2004 by NBIagents Besarra and Divinagracia, in coordination with UNILAB employees. No fakeRevicon multivitamins were found; instead, there were sealed boxes at the first andsecond floors of the Shalimar Building which, when opened by the NBI agents in thepresence of respondent Isip, contained the following:

QUANTITY/UNIT DESCRIPTION

792 Bottles Disudrin 60 ml.

30 Boxes (100 pieces each) Inoflox 200 mg.[8]chanroblesvirtuallawlibraryNBI Special Investigator Divinagracia submitted an inventory of the things seized inwhich he declared that the search of the first and second floors of the ShalimarBuilding at No. 1571, Aragon Street, Sta. Cruz, Manila, the premises described in thewarrant, was done in an orderly and peaceful manner. He also filed a Return ofSearch Warrant,[9] alleging that no other articles/items other than those mentionedin the warrant and inventory sheet were seized. The agent prayed that of the itemsseized, ten boxes of Disudrin 60 ml., and at least one box of Inoflox be turned overto the custody of the Bureau of Food and Drugs (BFAD) for examination.[10] Thecourt issued an order granting the motion, on the condition that the turn over bemade before the court, in the presence of a representative from the respondentsand the court.[11]chanroblesvirtuallawlibrary

The respondents filed an 'Urgent Motion to Quash the Search Warrant or toSuppress Evidence.[12] They contended that the implementing officers of the NBIconducted their search at the first, second, third and fourth floors of the building atNo. 1524-A, Lacson Avenue, Sta. Cruz, Manila, where items in 'open display wereallegedly found. They pointed out, however, that such premises was different fromthe address described in the search warrant, the first and second floors of theShalimar Building located at No. 1571, Aragon Street, Sta. Cruz, Manila. Therespondents, likewise, asserted that the NBI officers seized Disudrin and Inoflox


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products which were not included in the list of properties to be seized in the searchwarrant.

UNILAB, in collaboration with the NBI, opposed the motion, insisting that the searchwas limited to the first and second floors of the Shalimar building located at thecorner of Aragon Street and Lacson Avenue, Sta. Cruz, Manila. They averred that,

based on the sketch appended to the search warrant application, Rabe's affidavit,as well as the joint affidavit of Besarra and Divinagracia, the building where thesearch was conducted was located at No. 1571, Aragon Street corner LacsonAvenue, Sta. Cruz, Manila. They pointed out that No. 1524 Lacson Avenue, Sta.Cruz, Manila was the old address, and the new address was No. 1571, AragonStreet, Sta. Cruz, Manila. They maintained that the warrant was not implemented inany other place.[13]chanroblesvirtuallawlibrary

In reply, the respondents insisted that the items seized were different from thoselisted in the search warrant. They also claimed that the seizure took place in thebuilding located at No. 1524-A which was not depicted in the sketch of the premiseswhich the applicant submitted to the trial court.[14] In accordance with the ruling ofthis Court in People v. Court of Appeals,[15] the respondents served a copy of theirpleading on UNILAB.[16]chanroblesvirtuallawlibrary

On March 11, 2004, the trial court issued an Order[17] granting the motion of therespondents, on the ground that the things seized, namely, Disudrin and Inoflox,were not those described in the search warrant. On March 16, 2004, the trial courtissued an advisory[18] that the seized articles could no longer be admitted inevidence against the respondents in any proceedings, as the search warrant hadalready been quashed.

UNILAB, through the Ureta Law Office, filed a motion, in collaboration with the NBIagents, for the reconsideration of the order, contending that the ground used by thecourt in quashing the warrant was not that invoked by the respondents, and that

the seizure of the items was justified by the plain view doctrine. The respondentsobjected to the appearance of the counsel of UNILAB, contending that the lattercould not appear for the People of the Philippines. The respondents moved that themotion for reconsideration of UNILAB be stricken off the record. Disputing theclaims of UNILAB, they insisted that the items seized were contained in boxes at thetime of the seizure at No. 1524-A, Lacson Avenue corner Aragon Street, Sta. Cruz,Manila, and were not apparently incriminating on plain view. Moreover, the seizeditems were not those described and itemized in the search warrant application, aswell as the warrant issued by the court itself. The respondents emphasized that theShalimar Laboratories is authorized to manufacture galenical preparations of thefollowing products:

Products:

- Povidone Iodine- Chamomile Oil- Salicylic Acid 10 g.- Hydrogen Peroxide 3% Topical Solution- Aceite de Alcamforado- Aceite de Manzanilla[19]chanroblesvirtuallawlibrary
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In a manifestation and opposition, the respondents assailed the appearance of thecounsel of UNILAB, and insisted that it was not authorized to appear before thecourt under the Rules of Court, and to file pleadings. They averred that the BFADwas the authorized government agency to file an application for a search warrant.

In its counter-manifestation, UNILAB averred that it had the personality to file the

motion for reconsideration because it was the one which sought the filing of theapplication for a search warrant; besides, it was not proscribed by Rule 126 of theRevised Rules of Criminal Procedure from participating in the proceedings and filingpleadings. The only parties to the case were the NBI and UNILAB and not the Stateor public prosecutor. UNILAB also argued that the offended party, or the holder of alicense to operate, may intervene through counsel under Section 16 of Rule 110, inrelation to Section 7(e), of the Rules of Criminal Procedure.

UNILAB prayed that an ocular inspection be conducted of the place searched by theNBI officers.[20] In their rejoinder, the respondents manifested that an ocularinspection was the option to look forward to.[21]However, no such ocular inspectionof the said premises was conducted.

In the meantime, the BFAD submitted to the court the result of its examination ofthe Disudrin and Inoflox samples which the NBI officers seized from the ShalimarBuilding. On its examination of the actual component of Inoflox, the BFAD declaredthat the substance failed the test.[22] The BFAD, likewise, declared that theexamined Disudrin syrup failed the test.[23] The BFAD had earlier issued thefollowing report:

PRODUCT NAME Manufacturer

L.N. E.D. FINDINGS

1.Phenylpropanolamine (Disudrin)12.5 mg./5mL Syrup

Unilab 21021552 3-06 -Registered,however,label/physical

appearance does notconform with theBFAD approved label/registeredspecifications.

2.Ofloxacin (Inoflox)200 mg. tablet.

Unilab 99017407 3-05 -Registered,however,label/physicalappearance does notconform with theBFAD approved label/registered

specifications.[24]

On May 28, 2004, the trial court issued an Order[25] denying the motion forreconsideration filed by UNILAB. The court declared that:

The Search Warrant is crystal clear: The seizing officers were only authorized totake possession of 'finished or unfinished products of United Laboratories (UNILAB),particularly REVICON Multivitamins, and documents evidencing the counterfeitnature of said products. The Receipt/Inventory of Property Seized pursuant to the


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Manila covered by TCT No. 174412 as stated in the search warrant. They assert thatthe ruling of the Court in People v. Court of Appeals[29] is applicable in this case.

They conclude that the petitioner failed to prove the factual basis for the applicationof the plain view doctrine.[30]chanroblesvirtuallawlibrary

In reply, the petitioner asserts that it has standing and is, in fact, the real party-in-

interest to defend the validity of the search warrant issued by the RTC; after all, itwas upon its instance that the application for a search warrant was filed by the NBI,which the RTC granted. It asserts that it is not proscribed under R.A. No. 8203 fromfiling a criminal complaint against the respondents and requesting the NBI to file anapplication for a search warrant. The petitioner points out that the Rules of CriminalProcedure does not specifically prohibit a private complainant from defending thevalidity of a search warrant. Neither is the participation of a state prosecutorprovided in Rule 126 of the said Rules. After all, the petitioner insists, theproceedings for the application and issuance of a search warrant is not a criminalaction. The petitioner asserts that the place sought to be searched was sufficientlydescribed in the warrant for, after all, there is only one building on the two parcelsof land described in two titles where Shalimar Philippines is located, the place

searched by the NBI officers.[31] It also asserts that the building is located at thecorner of Aragon Street and Lacson Avenue, Sta. Cruz, Manila.[32]chanroblesvirtuallawlibrary

The petitioner avers that the plain view doctrine is applicable in this case becausethe boxes were found outside the door of the respondents' laboratory on the garagefloor. The boxes aroused the suspicion of the members of the raiding team'precisely because these were marked with the distinctive UNILAB logos. The boxesin which the items were contained were themselves so designated to replicate trueand original UNILAB boxes for the same medicine. Thus, on the left hand corner ofone side of some of the boxes[33]the letters 'ABR under the words '60 ml, appearedto describe the condition/quality of the bottles inside (as it is with genuine UNILABbox of the true medicine of the same brand). The petitioner pointed out that 'ABR isthe acronym for 'amber bottle round describing the bottles in which the true andoriginal Disudrin (for children) is contained.

The petitioner points out that the same boxes also had their own license plates'which were instituted as among its internal control/countermeasures. The licenseplates indicate that the items within are, supposedly, 'Disudrin. The NBI officers hadreasonable ground to believe that all the boxes have one and the same dataappearing on their supposedly distinctive license plates. The petitioner insists thatalthough some of the boxes marked with the distinctive UNILAB logo were, indeed,sealed, the tape or seal was also a copy of the original because these, too, weremarked with the distinctive UNILAB logo. The petitioner appended to its pleadingpictures of the Shalimar building and the rooms searched showing respondent Isip;

[34] the boxes seized by the police officers containing Disudrin syrup;[35] and theboxes containing Inoflox and its contents.[36]chanroblesvirtuallawlibrary

The issues for resolution are the following: (1) whether the petitioner is the properparty to file the petition at bench; (2) whether it was proper for the petitioner to filethe present petition in this Court under Rule 45 of the Rules of Court; and (3)whether the search conducted by the NBI officers of the first and second floors ofthe Shalimar building and the seizure of the sealed boxes which, when opened,contained Disudrin syrup and Inoflox, were valid.
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On the first issue, we agree with the petitioner's contention that a search warrantproceeding is, in no sense, a criminal action[37] or the commencement of aprosecution.[38] The proceeding is not one against any person, but is solely for thediscovery and to get possession of personal property. It is a special and peculiarremedy, drastic in nature, and made necessary because of public necessity. Itresembles in some respect with what is commonly known as John Doe proceedings.

[39] While an application for a search warrant is entitled like a criminal action, itdoes not make it such an action.

A search warrant is a legal process which has been likened to a writ of discoveryemployed by the State to procure relevant evidence of crime.[40] It is in the natureof a criminal process, restricted to cases of public prosecutions.[41] A searchwarrant is a police weapon, issued under the police power. A search warrant mustissue in the name of the State, namely, the People of the Philippines.[42]chanroblesvirtuallawlibrary

A search warrant has no relation to a civil process. It is not a process foradjudicating civil rights or maintaining mere private rights.[43] It concerns thepublic at large as distinguished from the ordinary civil action involving the rights ofprivate persons.[44] It may only be applied for in the furtherance of publicprosecution.[45]chanroblesvirtuallawlibrary

However, a private individual or a private corporation complaining to the NBI or to agovernment agency charged with the enforcement of special penal laws, such asthe BFAD, may appear, participate and file pleadings in the search warrantproceedings to maintain, inter alia, the validity of the search warrant issued by thecourt and the admissibility of the properties seized in anticipation of a criminal caseto be filed; such private party may do so in collaboration with the NBI or suchgovernment agency. The party may file an opposition to a motion to quash thesearch warrant issued by the court, or a motion for the reconsideration of the courtorder granting such motion to quash.[46]chanroblesvirtuallawlibrary

In this case, UNILAB, in collaboration with the NBI, opposed the respondents' motionto quash the search warrant. The respondents served copies of their reply andopposition/comment to UNILAB, through Modesto Alejandro, Jr.[47] The court aquo allowed the appearance of UNILAB and accepted the pleadings filed by it and itscounsel.

The general rule is that the proper party to file a petition in the CA or SupremeCourt to assail any adverse order of the RTC in the search warrant proceedings isthe People of the Philippines, through the OSG. However, in Columbia PicturesEntertainment, Inc. v. Court of Appeals,[48] the Court allowed a private corporation(the complainant in the RTC) to file a petition for certiorari, and considered thepetition as one filed by the OSG. The Court in the said case even held that the

petitioners therein could argue its case in lieu of the OSG:

From the records, it is clear that, as complainants, petitioners were involved in theproceedings which led to the issuance of Search Warrant No. 23. In People v. Nano,the Court declared that while the general rule is that it is only the Solicitor Generalwho is authorized to bring or defend actions on behalf of the People or the Republicof the Philippines once the case is brought before this Court or the Court of Appeals,if there appears to be grave error committed by the judge or a lack of due process,
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the petition will be deemed filed by the private complainants therein as if it werefiled by the Solicitor General. In line with this ruling, the Court gives this petitiondue course and will allow petitioners to argue their case against the questionedorder in lieu of the Solicitor General.[49]chanroblesvirtuallawlibrary

The general rule is that a party is mandated to follow the hierarchy of courts.

However, in exceptional cases, the Court, for compelling reasons or if warranted bythe nature of the issues raised, may take cognizance of petitions filed directlybefore it.[50] In this case, the Court has opted to take cognizance of the petition,considering the nature of the issues raised by the parties.

The Court does not agree with the petitioner's contention that the issue of whetherthe Disudrin and Inoflox products were lawfully seized was never raised in thepleadings of the respondents in the court a quo. Truly, the respondents failed toraise the issue in their motion to quash the search warrant; in their reply, however,they averred that the seized items were not included in the subject warrant and,therefore, were not lawfully seized by the raiding team. They also averred that thesaid articles were not illegalper se, like explosives andshabu, as to justify their

seizure in the course of unlawful search.[51] In their Opposition/Comment filed onMarch 15, 2004, the respondents even alleged the following:

The jurisdiction of this Honorable Court is limited to the determination of whetherthere is a legal basis to quash the search warrant and/or to suppress the seizedarticles in evidence. Since the articles allegedly seized during the implementation ofthe search warrant ' Disudrin and Inoflux products ' were not included in the searchwarrant, they were, therefore, not lawfully seized by the raiding team; they are notillegalper se, as it were, like an arms cache, subversive materials or shabu as to

justify their seizure in the course of a lawful search, or being in plain view or somesuch. No need whatever for some public assay.

The NBI manifestation is a glaring admission that it cannot tell without properexamination or assay that the Disudrin and Inoflox samples allegedly seized fromrespondent's place were counterfeit. All the relevant presumptions are in favor oflegality.[52]chanroblesvirtuallawlibrary

The Court, therefore, finds no factual basis for the contention of the petitioner thatthe respondents never raised in the court a quo the issue of whether the seizure ofthe Disudrin and Inoflox products was valid.

In any event, the petitioner filed a motion for the reconsideration of the March 11,2004 Order of the courta quo on the following claims:

2.01 The Honorable Court ERRED in ruling on a non-issue or the issue as tothe alleged failure to particularly describe in the search warrant theitems to be seized but upon which NOchallenge was then existingand/or NO controversy is raised;

2.02 The Honorable Court ERRED in its ruling that 'finished or unfinishedproducts of UNILAB cannot stand the test of a particular descriptionfor which it then reasons that the search is, supposedlyunreasonable; and,
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2.03 The Honorable Court ERRED in finding that the evidence seized islawfully inadmissible against respondents.[53]chanroblesvirtuallawlibrary

The court a quo considered the motion of the petitioner and the issue raised by itbefore finally resolving to deny the same. It cannot thus be gainsaid that the

petitioner was denied its right to due process.On the validity of the seizure of the sealed boxes and its contents of Disudrin andInoflox, the Court, likewise, rejects the contention of the petitioner.

A search warrant, to be valid, must particularly describe the place to be searchedand the things to be seized. 'The officers of the law are to seize only those thingsparticularly described in the search warrant. A search warrant is not a sweepingauthority empowering a raiding party to undertake a fishing expedition to seize andconfiscate any and all kinds of evidence or articles relating to a crime. The search islimited in scope so as not to be general or explanatory. Nothing is left to thediscretion of the officer executing the warrant.[54]chanroblesvirtuallawlibrary

Objects, articles or papers not described in the warrant but on plain view of theexecuting officer may be seized by him. However, the seizure by the officer ofobjects/articles/papers not described in the warrant cannot be presumed as plainview. The State must adduce evidence, testimonial or documentary, to prove theconfluence of the essential requirements for the doctrine to apply, namely: (a) theexecuting law enforcement officer has a prior justification for an initial intrusion orotherwise properly in a position from which he can view a particular order; (b) theofficer must discover incriminating evidence inadvertently; and (c) it must beimmediately apparent to the police that the items they observe may be evidence ofa crime, contraband, or otherwise subject to seizure.[55]chanroblesvirtuallawlibrary

The doctrine is not an exception to the warrant. It merely serves to supplement theprior justification ' whether it be a warrant for another object, hot pursuit, search as

an incident to a lawful arrest or some other legitimate reason for being present,unconnected with a search directed against the accused. The doctrine may not beused to extend a general exploratory search from one object to another untilsomething incriminating at last emerges. It is a recognition of the fact that whenexecuting police officers comes across immediately incriminating evidence notcovered by the warrant, they should not be required to close their eyes to it,regardless of whether it is evidence of the crime they are investigating or evidenceof some other crime. It would be needless to require the police to obtain anotherwarrant.[56] Under the doctrine, there is no invasion of a legitimate expectation ofprivacy and there is no search within the meaning of the Constitution.

The immediate requirement means that the executing officer can, at the time of

discovery of the object or the facts therein available to him, determine probablecause of the object's incriminating evidence.[57] In other words, to be immediate,probable cause must be the direct result of the officer's instantaneous sensoryperception of the object.[58] The object is apparent if the executing officer hadprobable cause to connect the object to criminal activity. The incriminating natureof the evidence becomes apparent in the course of the search, without the benefitof any unlawful search or seizure. It must be apparent at the moment of seizure.[59]chanroblesvirtuallawlibrary
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The requirement of inadvertence, on the other hand, means that the officer mustnot have known in advance of the location of the evidence and intend to seize it.[60] Discovery is not anticipated.[61]chanroblesvirtuallawlibrary

The immediately apparent test does not require an unduly high degree of certaintyas to the incriminating character of evidence. It requires merely that the seizure be

presumptively reasonable assuming that there is probable cause to associate theproperty with criminal activity; that a nexus exists between a viewed object andcriminal activity.[62]chanroblesvirtuallawlibrary

Incriminating means the furnishing of evidence as proof of circumstances tending toprove the guilt of a person.[63]chanroblesvirtuallawlibrary

Indeed, probable cause is a flexible, common sense standard. It merely requiresthat the facts available to the officer would warrant a man of reasonable cautionand belief that certain items may be contrabanded or stolen property or useful asevidence of a crime. It does not require proof that such belief be correct or morelikely than true. A practical, non-traditional probability that incriminating evidence isinvolved is all that is required. The evidence thus collected must be seen and

verified as understood by those experienced in the field of law enforcement.[64]chanroblesvirtuallawlibrary

In this case, Disudrin and/or Inoflox were not listed in the search warrant issued bythe court a quo as among the properties to be seized by the NBI agents. Thewarrant specifically authorized the officers only to seize 'counterfeit Reviconmultivitamins, finished or unfinished, and the documents used in recording,manufacture and/or importation, distribution and/or sale, or the offering for sale,sale and/or distribution of the said vitamins. The implementing officers failed to findany counterfeit Revicon multivitamins, and instead seized sealed boxes which,when opened at the place where they were found, turned out to contain Inoflox andDisudrin.

It was thus incumbent on the NBI agents and the petitioner to prove their claim thatthe items were seized based on the plain view doctrine. It is not enough to provethat the sealed boxes were in the plain view of the NBI agents; evidence shouldhave been adduced to prove the existence of all the essential requirements for theapplication of the doctrine during the hearing of the respondents' motion to quash,or at the very least, during the hearing of the NBI and the petitioner's motion forreconsideration on April 16, 2004. The immediately apparent aspect, after all, iscentral to the plain view exception relied upon by the petitioner and the NBI. Thereis no showing that the NBI and the petitioner even attempted to adduce suchevidence. In fact, the petitioner and the NBI failed to present any of the NBI agentswho executed the warrant, or any of the petitioner's representative who waspresent at the time of the enforcement of the warrant to prove that the enforcing

officers discovered the sealed boxes inadvertently, and that such boxes and theircontents were incriminating and immediately apparent. It must be stressed thatonly the NBI agent/agents who enforced the warrant had personal knowledgewhether the sealed boxes and their contents thereof were incriminating and thatthey were immediately apparent.[65] There is even no showing that the NBI agentsknew the contents of the sealed boxes before they were opened.

In sum then, the Court finds and so hold that the petitioner and the NBI failed toprove the essential requirements for the application of the plain view doctrine.


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IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. Theassailed orders of the Regional Trial Court are AFFIRMED.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.

Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION

G.R. No. 145176 March 30, 2004

PEOPLE OF THE PHILIPPINES, appellee,vs.SANTIAGO PERALTA y POLIDARIO (at large), ARMANDO DATUIN JR. y

GRANADOS (at large), ULYSSES GARCIA y TUPAS, MIGUELITO DE LEON yLUCIANO, LIBRANDO FLORES y CRUZ and ANTONIO LOYOLA ySALISI, accused,ULYSSES GARCIA y TUPAS, MIGUELITO DE LEON y LUCIANO, LIBRANDOFLORES y CRUZ and ANTONIO LOYOLA y SALISI, appellants.

DECISION

PANGANIBAN,J.:

The right of the accused to counsel demands effective, vigilant and independentrepresentation. The lawyers role cannot be reduced to being that of a mere witness

to the signing of an extra-judicial confession.

The Case

Before the Court is an appeal from the August 21, 2000 Decision1 of the RegionalTrial Court (RTC) of Manila (Branch 18) in Criminal Case No. 92-112322. AppellantsUlysses Garcia y Tupas, Miguelito de Leon y Luciano, Librando Flores y Cruz andAntonio Loyola y Salisi, as well as their co-accused -- Santiago Peralta y Polidarioand Armando Datuin Jr. y Granados -- were convicted therein of qualified theft. Thedispositive portion of the Decision reads:

"WHEREFORE, the accused, Santiago Peralta y Polidario, Armando Datuin, Jr. yGranados, Ulysses Garcia y Tupas, Miguelito De Leon y Luciano, Librando Flores yCruz and Antonio Loyola y Salisi, are hereby convicted of the crime of qualified theftof P194,190.00 and sentenced to suffer the penalty of reclusion perpetua with allthe accessory penalties provided by law, and to pay the costs. Moreover, all theaccused are ordered to pay the Central Bank of the Philippines, now Bangko Sentralng Pilipinas, actual damages in the sum of P194,190.00 with interest thereon at thelegal rate from the date of the filing of this action, November 9, 1992, until fullypaid."2


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In an Information dated November 9, 1992,3 appellants and their co-accused werecharged as follows:

"That sometime in the year 1990 and including November 4, 1992, in the City ofManila, Philippines, the said accused, conspiring and confederating with otherswhose true names, identities and present whereabouts are still unknown and

helping one another, did then and there wilfully, unlawfully and feloniously, withintent to gain and without the knowledge and consent of the owner thereof, take,steal and carry away punctured currency notes due for shredding in the totalamount of P194,190.00, belongin

consti2.search (1)

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