Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION

G.R. No. 173474 August 29, 2012

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.REYNALDO BELOCURA y PEREZ, Accused-Appellant.

D E C I S I O N

BERSAMIN, J.:

The credibility of the evidence of the corpus delicti in a prosecution for illegal possession of marij11ana under Republic Act No. 6425, as amended, depends on the integrity of the chain of custody of the marijuana from the time of its seizure until the time of its presentation as evidence in court. Short of that, the accused is entitled to an acquittal because the State fails to establish the guilt of the accused beyond reasonable doubt.

The Case

Reynaldo Belocura y Perez, a police officer charged with illegal possession of 1,789.823 grams of marijuana in violation of Republic Act No. 6425 (Dangerous Drugs Act of 1972), as amended by Republic Act No. 7659, was found guilty of the crime charged on April 22, 2003 by the Regional Trial Court (RTC) in Manila, and sentenced to suffer reclusion perpetua and to pay a fine of P 500,000.00.1

On appeal, the Court of Appeals (CA) affirmed the conviction on January 23, 2006.2 Hence, this final appeal for his acquittal.

Antecedents

Belocura was charged on April 13, 1999 by the Office of the City Prosecutor of Manila with a violation of Section 8 of Republic Act No. 6425, as amended by Republic Act No. 7659, in the Manila RTC through the information:

That on or about March 22, 1999, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and knowingly have in his possession and under his custody and control one (1) plastic bag colored red and white, with label "SHIN TON YON", containing the following:

One (1) newspaper leaf used to wrap one (1) brick of dried marijuana fruiting tops weighing 830.532 grams;

One (1) newspaper leaf used to wrap one (1) brick of dried marijuana fruiting tops weighing 959.291 grams.

With a total weight of 1,789.823 grams, a prohibited drug.

Contrary to law.3

After Belocura pleaded not guilty,4 the State presented three witnesses, namely: Insp. Arlene Valdez Coronel, Chief Insp. Ferdinand Ortales Divina, and SPO1 Gregorio P. Rojas. On the other hand, the Defense presented Belocura as its sole witness.

IThe State’s Evidence

On March 22, 1999, at 11 o’clock in the morning, Chief Insp. Divina was in his office in the headquarters of the Western Police District (WPD) on United Nations Avenue in Manila when he received a call from a male person who refused to identify himself for fear of reprisal. The caller tipped him off about a robbery to be staged along Lopez Street, Tondo, Manila. After relaying the tip to his superior officer, he was immediately ordered to form a team composed of operatives of the District Intelligence Group and to coordinate with the Special Weapons and Attack Team (SWAT) and the Mobile Patrol of the WPD.

After a briefing, Chief Insp. Divina and the other operatives proceeded to Lopez Street, reaching the site before 1:00 pm. Chief Insp. Divina and PO2 Eraldo Santos positioned themselves along Vitas Street. At around 2:00 pm, Chief Insp. Divina spotted an owner-type jeep bearing a spurious government plate (SBM-510) cruising along Vitas Street and told the rest of the team about it. The numbers of the car plate were painted white. The driver was later identified as Belocura. Chief Insp. Divina signaled for Belocura to stop for verification but the latter ignored the signal and sped off towards Balut, Tondo. The team pursued Belocura’s jeep until they blocked its path with their Tamaraw FX vehicle, forcing Belocura to stop. At this point, Chief Insp. Divina and the rest of the team approached the jeep and introduced themselves to Belocura as policemen. Chief Insp. Divina queried Belocura on the government plate. SPO1 Rojas confiscated Belocura’s Berreta 9 mm. pistol (Serial Number M13086Z) that was tucked in his waist and its fully loaded magazine when he could not produce the appropriate documents for the pistol and the government plate. They arrested him.

PO2 Santos searched Belocura’s jeep, and recovered a red plastic bag under the driver’s seat. Chief Insp. Divina directed PO2 Santos to inspect the contents of the red plastic bag, which turned out to be two bricks of marijuana wrapped in newspaper.

Afterwards, the team returned with Belocura to the WPD Headquarters on board the Tamaraw FX. The team turned over the jeep and the red plastic bag with its contents to the General Assignment Section for proper disposition.5

Chief Insp. Divina said that the caller did not mention anything about any vehicle; that he and his men were in civilian clothes at the time; that it was PO2 Santos who recovered the red plastic bag containing the marijuana bricks; and that SPO1 Rojas examined the contents of the bag in his presence.6

SPO1 Rojas confirmed his part in the operation.7 He conceded that he was not present when the red plastic bag containing the bricks of marijuana was seized, and saw the marijuana bricks for the first time only at the police station.8

Forensic Chemist Insp. Coronel attested that her office received from the General Assignment Section of the WPD one red plastic bag labeled "SHIN TON YON" containing two bricks of dried suspected marijuana fruiting tops individually wrapped in newspaper at about 12:30 pm of March

23, 1999. The first brick bore the marking "RB-1" and weighed 830.532 grams while the other bore the marking "RB-2" and weighed 959.291 grams, for a total weight of 1,789.823 grams. She conducted a chemical examination of the marijuana bricks pursuant to the request for laboratory examination from Chief Insp. Nelson Yabut of the WPD; and concluded as the result of three qualitative examinations that the submitted specimen tested positive for marijuana, a prohibited drug.9

IIEvidence of the Defense

Belocura denied the charge. His version, which differed from that of the Prosecution, was as follows.

On March 22, 1999, Belocura was a police officer assigned in Police Station 6 of the WPD with a tour of duty from 3:00 pm to 11:00 pm. At 2:00 pm of that day, he was on his way to work on board his owner-type jeep when about thirty police officers blocked his path. He introduced himself to them as a police officer, but they ignored him. Instead, they disarmed and handcuffed him, and confiscated the memorandum receipt covering his firearm, his

money and his police ID card. He recognized some of his arrestors as former members of the CIS. They forced him into their jeep, and brought him to the WPD headquarters, where they locked him up in a room that looked like a bodega. They subjected him to interrogation on his alleged involvement in a robbery hold-up. They informed him of the drug-related charge to be filed against him only three days later.

Belocura denied owning or possessing the bricks of marijuana, saying that he saw the bricks of marijuana for the first time only in court. He insisted that it was physically impossible for the bricks of marijuana to be found under the driver’s seat of his jeep on account of the clearance from the flooring being only about three inches. At the time of his arrest, he was in Type-B uniform (i.e., blue pants with white side piping and blue T-shirt) because he was reporting to work that afternoon. Belocura said that his arrest was effected possibly because he had incurred the ire of a superior; that it was not unusual for a policeman like him to incur the ire of a superior officer or a fellow policeman; that he had arrested a suspect for drug pushing and had detained him in Police Precinct 2, but the suspect turned out to be the nephew of Captain Sukila of Precinct 2 who admitted to him that Captain Sukila owned the drugs; that on the day following the arrest of the suspect, Captain Sukila called Belocura to request the release of the suspect (ina-arbor ang huli ko); that he told Captain Sukila that they should meet the next day so that he could turn over the suspect; and that on the next day, he was surprised to learn that the suspect had already been released.10

Belocura did not personally know Chief Insp. Divina prior to his arrest,11 or the other arresting policemen. He mentioned that his owner-type jeep had been assembled in 1995, and that he had attached the plate number assigned to his old vehicle pending the registration of the jeep despite knowing that doing so was a violation of law; and that the incident involving the arrest of the nephew of Captain Sukila was the only reason he could think of why charges were filed against him.12

On re-direct examination, Belocura replied that he did not see the bricks of marijuana whether at the time of his arrest, or at the police precinct, or during the inquest proceedings. On re-cross, he clarified that while the driver’s seat were fixed to the jeep, the bricks of marijuana could nevertheless be placed under the driver’s seat only if pressed hard enough, but in that case the wrappings would get torn because the wirings of the car underneath the seat were exposed. He recalled that the wrappings of the bricks of marijuana were intact.13

On April 22, 2003, the RTC convicted Belocura of the crime charged and sentenced him to suffer reclusion perpetua and to pay the fine of P 500,000.00.14

As already stated, the CA affirmed the conviction.15

Issues

Belocura now submits that:16

I.

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME CHARGED NOTWITHSTANDING THE PHYSICIAL IMPOSSIBILITY FOR THE DRIED BRICKS OF MARIJUANA PLACED UNDER THE DRIVER’S SEAT (sic).

II.

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME CHARGED BASED ON THE INCONSISTENT AND CONTRADICTORY STATEMENTS OF THE PROSECUTION WITNESS.

III.

THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE THE MARIJUANA DESPITE THE ILLEGALITY OF ITS SEIZURE DUE TO THE ABSENSE (sic) OF A VALID SEARCH WARRANT.

IV.

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME CHARGED WHEN HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.

Belocura argues that the Prosecution did not establish his guilt for the crime charged beyond reasonable doubt; that his warrantless arrest was unlawful considering that his only violation was only a breach of traffic rules and regulations involving the illegal use of a government plate on his newly-assembled jeep; that the warrantless search of his jeep was contrary to law for violating his right against illegal search and seizure protected under Section 17, Article III (Bill of Rights) of the 1987 Constitution;17 and that the bricks of marijuana supposedly seized from him, being the fruit of a poisonous tree, were inadmissible against him.

The Office of the Solicitor General (OSG) counters that Belocura’s arrest and the ensuing search of the jeep were valid, the search being incidental to a valid, albeit warrantless, arrest; that the arresting policemen had a reasonable ground to effect his warrantless arrest; that it became their duty following the lawful arrest to conduct the warrantless search not only of the person of Belocura as the arrestee but also of the areas within his reach, which then resulted in the recovery of the dried bricks of marijuana from under the driver’s seat; and that any irregularity attendant to the arrest was cured by Belocura’s failure to object to the validity of his arrest before entering his plea and by his submission to the jurisdiction of the RTC when he entered his plea and participated in the trial.18

Ruling

After a meticulous examination of the records, the Court concludes that a reversal of the conviction is justified and called for.

No arrest, search and seizure can be made without a valid warrant issued by a competent judicial authority. So sacred are the right of personal security and privacy and the right from unreasonable searches and seizures that no less than the Constitution ordains in Section 2 of its Article III, viz:

Section 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose, shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized.

The consequence of a violation of the guarantees against a violation of personal security and privacy and against unreasonable searches and seizures is the exclusion of the evidence thereby obtained. This rule of exclusion is set down in Section 3(2), Article III of the Constitution, to wit:

Section 3. xxx

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

Even so, the right against warrantless arrest, and the right against warrantless search and seizure are not absolute. There are circumstances in which the arrest, or search and seizure, although warrantless, are nonetheless valid or reasonable. Among the circumstances are those mentioned in Section 5, Rule 113 of the Rules of Court, which lists down when a warrantless arrest may be lawfully made by a peace officer or a private person, namely:

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

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

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

On the other hand, the constitutional proscription against warrantless searches and seizures admits of the following exceptions, namely: (a) warrantless search incidental to a lawful arrest recognized under Section 13, Rule 126 of the Rules of Court;19 (b) seizure of evidence under plain view; (c) search of a moving vehicle; (d) consented warrantless search; (e) customs search; (f) stop-and-frisk situations (Terry search); and (g) exigent and emergency circumstances.20 In these exceptional situations, the necessity for a search warrant is dispensed with.

Belocura argues that his arrest and the ensuing search of his vehicle and recovery of the incriminating bricks of marijuana were in violation of his aforementioned rights under the Constitution because he was then violating only a simple traffic rule on the illegal use of a government plate. He claims that the arresting policemen had no probable cause to search his vehicle for anything.

The argument of Belocura does not persuade.

Belocura was caught in flagrante delicto violating Section 31 of Republic Act No. 4139 (The Land Transportation and Traffic Code).21 In flagrante delicto means in the very act of committing the crime. To be caught in flagrante delicto necessarily implies the positive identification of the culprit by an eyewitness or eyewitnesses. Such identification is a direct evidence of culpability, because it "proves the fact in dispute without the aid of any inference or presumption."22 Even by his own admission, he was actually committing a crime in the presence or within the view of the arresting policemen. Such manner by which Belocura was apprehended fell under the first category in Section 5, Rule 113 of the Rules of Court. The arrest was valid, therefore, and the arresting policemen thereby became cloaked with the authority to validly search his person and effects for weapons or any other article he might use in the commission of the crime or was the fruit of the crime or might be used as evidence in the trial of the case, and to seize from him and the area within his reach or under his control, like the jeep, such weapon or other article. The evident purpose of the incidental search was to protect the arresting policemen from being harmed by him with the use of a concealed weapon. Accordingly, the warrantless character of the arrest could not by itself be the basis of his acquittal.23

In convicting Belocura as charged, the RTC relied on the testimonies of Chief Insp. Divina and SPO1 Rojas to establish the fact of possession of the marijuana bricks. An evaluation of the totality of the evidence on record indicates, however, that the corpus delicti of the crime charged was not established beyond reasonable doubt.

The elements of illegal possession of marijuana under Republic Act No. 6425, as amended, are that: (a) the accused is in possession of an item or object that is identified to be marijuana, a prohibited drug; (b) such possession is not authorized by law; and (c) the accused freely and consciously possessed the said drug.24 What must be proved beyond reasonable doubt is the fact of possession of the prohibited drug itself. This may be done by presenting the police officer who actually recovered the prohibited drugs as a witness, being the person who has the direct knowledge of the possession.

Chief Insp. Divina who headed the team of policemen disclosed that it was PO2 Santos, a member of the team, who had discovered and had actually recovered the red plastic bag containing the bricks of marijuana from the jeep. Excerpts of Chief Insp. Divina’s relevant declarations follow:

ATTY LEE:

q Mr. Witness, it was SPO1 Rojas who examined the contents of the plastic bag. That is correct?

a I had testified that it was SPO1 Rojas who examined the contents.

q Okay, it was Mr. Rojas who retrieved the plastic bag? Is that correct?

a No sir, It was not SPO1 Rojas.

q It was not you who retrieved that plastic bag from the jeep?

a No, Sir. I was not the one.

q It was Dela Cruz?

a No, Sir.

q Who retrieved the plastic bag from the jeep?

WITNESS:

A It was PO2 Reynaldo Santos, Sir.

ATTY LEE :

q It was Santos who brought the plastic bag to the headquarters. Is that correct?

A Yes, Sir.

q And you never had a chance to examine that plastic bag, the contents of that plastic bag is that correct?

a I had a chance to see it at the place where we had flagged down a vehicle.

q You saw only the plastic bag. Is that correct?

a No, Sir. When the bag was recovered from under the driver’s seat and when it was opened, I had the chance to see it.

THE COURT:

q Including the contents?

WITNESS:

a Yes, your Honor.

ATTY LEE:

q It was not you who bring that bag to xxx

THE COURT:

Already answered.

ATTY LEE:

q And after that, you never had the chance to see that bag again. Is that correct?

a Not anymore Sir.25

The Prosecution also presented SPO1 Rojas, another member of the team, but he provided no direct evidence about the possession by Belocura of the confiscated marijuana bricks, and actually stated that he did not witness the recovery of the marijuana bricks from Belocura, viz:

PUB. PROS. TAN, JR:

q While you were taking the gun of this accused what were your other companion specifically Major Divina doing?

WITNESS:

a Since I was the first one who approached Reynaldo Belocura I was the one who took the gun from his waistline and I informed Major Divina that I already took the gun and place it inside the Tamaraw FX and when I left the members of the SWAT arrive at the scene and I don’t know what transpired.

PUB. PROS. TAN, JR:

q And where was Major Divina then?

a Beside the owner type jeep, sir.

q You are referring to the owner type jeep of the accused?

a Yes, sir.

q Did you go back to the said jeep?

a I did not return there anymore sir because the members of the other group surrounded the place, sir.

q Since you were then at that scene did you come to know if there is any other thing that was retrieved from the herein accused in the said vehicle?26

xxx

WITNESS:

a Yes. When I was there according to them marijuana was taken from the owner type jeep.

PUB. PROS. TAN, JR:

q Who said that?27

xxx

WITNESS:

a The member of the SWAT and other team, sir were there.

q And then what else happen after such recovery?

a Actually sir at the scene I did not see anything recovered but it was only in the office that I heard their conversation about it.

q What did you see or observe while in your office?

a He was investigated.

q Investigated for what?

a According to them the recovery of the plate number and the expired MR of the gun and the marijuana recovered.

PUB. PROS. TAN, JR:

q Before whom was he investigated?

WITNESS:

a General Assignment Section, sir.28

xxx

On further examination, SPO1 Rojas reiterated that he did not actually witness the seizure of the marijuana bricks from Belocura’s possession, to wit:

ATTY LEE:

q Mr. Witness, so you did not see the actual the alleged recovery of marijuana, is that correct?

WITNESS:

a Yes sir.

ATTY LEE:

q And you have never that marijuana?

WITNESS:

a Yes sir. But only in the office.

q What do you only took from the accused is a gun, is that correct?

a Yes sir.

q So you cannot say positively that there was a marijuana recovered from the accused because you did not see?

a I just got the information from my co-police officer, sir.29

x x x

PUB. PROS TAN, JR:

q Were you able to see the marijuana in the police station?

WITNESS:

a Yes sir.

q You mean to say that was the first time that you saw the marijuana?

a Yes, sir.30

The Prosecution presented no other witnesses to establish the seizure of the marijuana bricks from Belocura.

Based on the foregoing, Chief Insp. Divina and SPO1 Rojas’ declarations were insufficient to incriminate Belocura, much less to convict him. If neither of them was personally competent to be an eyewitness regarding the seizure of the marijuana bricks from Belocura, their testimonies could not be accorded probative value, considering that the Rules of Court requires that a witness could testify only to facts that he knew of his own knowledge, that is, only to those facts derived from his own perception.31

Indeed, only PO2 Santos could reliably establish Belocura’s illegal possession of the marijuana bricks, if Chief Insp. Divina’s account was to be believed. Surprisingly, the RTC did not give due and proper significance to the failure to present PO2 Santos as a witness against Belocura.

Nonetheless, the OSG contends that the State had no need to present PO2 Santos because his testimony would only be corroborative; and that the testimonies of Chief Insp. Divina and SPO1 Rojas sufficed to establish Belocura’s guilt beyond reasonable doubt.

The OSG’s contention is grossly erroneous.

As the arresting officer who alone actually seized the marijuana bricks from Belocura’s vehicle beyond the viewing distance of his fellow arresting officers, PO2 Santos was the Prosecution’s only witness who could have reliably established the recovery from Belocura of the marijuana bricks contained in the red plastic bag labeled as "SHIN TON YON." Without PO2 Santos’ testimony, Chief Insp. Divina’s declaration of seeing PO2 Santos recover the red plastic bag from under the driver’s seat of Belocura’s jeep was worthless. The explanation why none of the other police officers could credibly attest to Belocura’s possession of the marijuana bricks was that they were at the time supposedly performing different tasks during the operation. Under the circumstances, only PO2 Santos was competent to prove Belocura’s possession.

Worse, the Prosecution failed to establish the identity of the prohibited drug that constituted the corpus delicti itself. The omission naturally raises grave doubt about any search being actually conducted and warrants the suspicion that the prohibited drugs were planted evidence.

In every criminal prosecution for possession of illegal drugs, the Prosecution must account for the custody of the incriminating evidence from the moment of seizure and confiscation until the moment it is offered in evidence. That account goes to the weight of evidence.32 It is not enough that the evidence offered has probative value on the issues, for the evidence must also be sufficiently connected to and tied with the facts in issue. The evidence is not relevant merely because it is available but that it has an actual connection with the transaction involved and with the parties thereto. This is the reason why authentication and laying a foundation for the introduction of evidence are important.33

Yet, no such accounting was made herein, as the following excerpts from the testimony of Chief Insp. Divina bear out, to wit:

PUB. PROS TAN, JR:

q How about the plastic bag containing the suspected stuff, what did you do with the same? You did not know?

WITNESS:

a I think it was turned over to the investigator of the General Assignment Section who made the proper disposition.

q Who is the investigator again, Mr. witness?

a I remember SPO4 Boy Guzman

q Did you know what SPO4 Boy Guzman did with the accused as well as the confiscated stuff?

x x x

WITNESS:

a The items upon turn over to the investigator on case were handed to the custodian with proper receipt and after those disposition, there were case filed against the subject.

PUB. PROS. TAN, JR:

q Were you able to know what did they do with the accused as well as the confiscated stuff if you know?

a I remember appearing in the MTC court Br, 20, I saw the exhibits, firearm and plate number, two blocks of marijuana. I don’t have any idea where did the investigator brought them or have done.34

x x x

q You never had a knowledge of what happened to that bag and the contents thereof?

a I learned later that the items that were confiscated were turned over to the General Assignment Section which held the investigation.

q So, it was not your group who conducted the examination and the alleged things that were recovered from the alleged accused?35

xxx

a No, Sir.

q How about the things that were allegedly recovered from the accused?

a I just said that it was the General Assignment Section who handled the investigation.36

The Prosecution thereby failed to establish the linkage between the bricks of marijuana supposedly seized by PO2 Santos from Belocura’s jeep following his arrest and the bricks of marijuana that the Prosecution later presented as evidence in court. That linkage was not dispensable, because the failure to prove that the specimens of marijuana submitted to the forensic chemist for examination were the same marijuana allegedly seized from Belocura irreparably broke the chain of custody that linked the confiscated marijuana to the marijuana ultimately presented as evidence against Belocura during the trial. Proof beyond reasonable doubt demanded that unwavering exactitude must be observed in establishing the corpus delicti – the body of the crime whose core was the confiscated prohibited substances. Thus, every fact necessary to constitute the crime must be established.371âwphi1

The chain-of-custody requirement ensures that all doubts concerning the identity of the evidence are removed.38The requirement has come to be associated with prosecutions for violations of Republic Act No. 9165 (Comprehensive Drugs Act of 2002),39 by reason of Section 2140 of Republic Act No. 9165 expressly regulating the actual custody and disposition of confiscated and surrendered dangerous drugs, controlled precursors, essential chemicals, instruments, paraphernalia, and laboratory equipment. Section 21(a) of the Implementing Rules and Regulations of Republic Act No. 9165 issued by the Dangerous Drugs Board pursuant to its mandate under Section 94 of Republic Act No. 9165 reiterates the requirement, stating:

xxx

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

xxx

That this case was a prosecution brought under Republic Act No. 6425 (Dangerous Drugs Act of 1972), as amended by Republic Act No. 7659, did not matter. The chain-of-custody requirement applied under both laws by virtue of the universal need to competently and sufficiently establish the corpus delicti. It is basic under the Rules of Court, indeed, that evidence, to be relevant, must throw light upon, or have a logical relation to, the facts in issue to be established by one party or disproved by the other.41 The test of relevancy is whether an item of evidence will have any value, as determined by logic and experience, in proving the proposition for which it is offered, or whether it would reasonably and actually tend to prove or disprove any matter of fact in issue, or corroborate other relevant evidence. The test is satisfied if there is some logical connection either directly or by inference between the fact offered and the fact to be proved.42

The chain of custody is essential in establishing the link between the article confiscated from the accused to the evidence that is ultimately presented to the court for its appreciation. As the Court said in Mallillin v. People:43

As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness’ possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same.

While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not readily identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination and even substitution and exchange. In other words, the exhibit’s level of susceptibility to fungibility, alteration or tampering—without regard to whether the same is advertent or otherwise not—dictates the level of strictness in the application of the chain of custody rule.44

The first link in the chain of custody started with the seizure from the jeep of Belocura of the red plastic bag said to contain the marijuana bricks. The first link was immediately missing because the Prosecution did not present PO2 Santos, the only person with direct knowledge of the seizure and confiscation of the marijuana bricks. Without his testimony, proof that the marijuana bricks were really taken from the jeep of Belocura did not exist. The second link was the turnover of the marijuana bricks by PO2 Santos to another officer back at the WPD Headquarters. As to this, Chief Insp. Divina stated that he learned following the seizure by PO2 Santos that the marijuana bricks were turned over to the General Assignment Section for investigation. That was all. On the other hand, SPO1 Rojas’ testimony contributed nothing to the establishment of the second link because he had immediately left after seizing the gun from Belocura. As for the subsequent links, the records45 showed that the marijuana bricks were forwarded to the General Assignment Section on March 22, 1999, but the Prosecution did not prove the identities of the officer from the General Assignment Section who received the red plastic bag containing the marijuana bricks, and the officer from whom the receiving officer received the marijuana bricks. Although Chief Insp. Nelson Yabut prepared the request for laboratory examination of the marijuana bricks,46 which were thereafter examined by Forensic Chemist Valdez, the records did not show if Chief Insp. Yabut was the officer who had received the marijuana bricks from the arresting team. The request for laboratory examination was dated March 23, 1999, or the day following Belocura’s arrest and the seizure of the marijuana bricks from his jeep; however, the Prosecution did not identify the person from whom Chief Insp. Yabut had received the marijuana bricks.

Sadly, the Prosecution did not establish the links in the chain of custody. This meant that the corpus delicti was not credibly proved. This further meant that the seizure and confiscation of the marijuana bricks might easily be open to doubt and suspicion, and thus the incriminatory evidence would not stand judicial scrutiny.

Thirdly, Belocura’s denial assumed strength in the face of the Prosecution’s weak incriminating evidence. In that regard, Belocura denied possession of the marijuana bricks and knowledge of them as well, to wit:

q Were you able to view the alleged marijuana that were confiscated from you?

a: I saw it for the first time when it was presented in Court, Sir.

q: Now, according to Inspector Divina, it was police officer Santos who was able to recover from your vehicle these two bricks of marijuana. What can you say about this?

a: At first, I did not see this marijuana, Sir, that they are saying because they immediately handcuffed me and disarmed me even before I could board my owner type jeepney.47

The Court holds that the guilt of Belocura for the crime charged was not proved beyond reasonable doubt. Mere suspicion of his guilt, no matter how strong, should not sway judgment against him. Every evidence favoring him must be duly considered. Indeed, the presumption of innocence in his favor was not overcome. Hence, his acquittal should follow, for, as the Court fittingly said in Patula v. People:48

xxx in all criminal prosecutions, the Prosecution bears the burden to establish the guilt of the accused beyond reasonable doubt. In discharging this burden, the Prosecution’s duty is to prove each and every element of the crime charged in the information to warrant a finding of guilt for that crime or for any other crime necessarily included therein. The Prosecution must further prove the participation of the accused in the commission of the offense. In doing all these, the Prosecution must rely on the strength of its own evidence, and not anchor its success upon the weakness of the evidence of the accused. The burden of proof placed on the Prosecution arises from the presumption of innocence in favor of the accused that no less than the Constitution has guaranteed. Conversely, as to his innocence, the accused has no burden of proof, that he must then be acquitted and set free should the Prosecution not overcome the presumption of innocence in his favor. In other words, the weakness of the defense put up by the accused is inconsequential in the proceedings for as long as the Prosecution has not discharged its burden of proof in establishing the commission of the crime charged and in identifying the accused as the malefactor responsible for it.49

WHEREFORE, we REVERSE and SET ASIDE the decision promulgated on January 23, 2006; ACQUIT accused REYNALDO BELOCURA y PEREZ for failure of the Prosecution to prove his guilt beyond reasonable doubt; DIRECT the immediate release from detention of REYNALDO BELOCURA y PEREZ, unless he is also detained for some other lawful cause; and ORDER the Director of the Bureau of Corrections to forthwith implement this decision upon receipt and to report his action hereon to this Court within 10 days from receipt. No pronouncement on costs of suit.

SO ORDERED.

Today is Monday, January 12, 2015

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Republic of the PhilippinesSUPREME COURTManila

THIRD DIVISION

G.R. No. 180661 December 11, 2013

GEORGE ANTIQUERA y CODES, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

ABAD, J.:

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

The Facts and the Case

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

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

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

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

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

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

On July 30, 2004 the RTC rendered a Decision8 that found accused Antiquera and Cruz guilty of the crime charged and sentenced them to a prison term ranging from six months and one day to two years and four months, and to pay a fine of P10,000.00 each and the costs of the suit.

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

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

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

The Issue Presented

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

Ruling of the Court

The prosecution’s theory, upheld by both the RTC and the CA, is that it was a case of valid warrantless arrest in that the police officers saw accused Antiquera and Cruz through the door of their house, in the act of having a pot session. That valid warrantless arrest gave the officers the right as well to search the living room for objects relating to the crime and thus seize the paraphernalia they found there.

The prosecution contends that, since the seized paraphernalia tested positive for shabu, they were no doubt used for smoking, consuming, administering, injecting, ingesting, or introducing dangerous drug into the body in violation of Section 12 of Republic Act 9165. That the accused tested negative for shabu, said the prosecution, had no bearing on the crime charged which was for illegal possession of drug paraphernalia, not for illegal use of dangerous drugs. The prosecution added that even assuming that the arrest of the accused was irregular, he is already considered to have waived his right to question the validity of his arrest when he voluntarily submitted himself to the court’s jurisdiction by entering a plea of not guilty.12

Section 5(a), Rule 113 of the Rules of Criminal Procedure provides that a "peace officer or a private person may, without a warrant, arrest a person when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense." This is an arrest in flagrante delicto.13 The overt act constituting the crime is done in the presence or within the view of the arresting officer.14

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

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

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

THE COURT:

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

A – It was partially open Your Honor.

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

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

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

A – We pushed the door, Your Honor.

x x x x

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

A – Kasi po naghinala po kami baka may…

Q – Are you not allowed to – Are you not required to get a search warrant before you can search the interior of the house?

A – Yes, Your Honor.

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

A – Yes, Your Honor.

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

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

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

A – Yes, Your Honor.15 (Emphasis supplied)

Clearly, no crime was plainly exposed to the view of the arresting officers that authorized the arrest of accused Antiquera without warrant under the above-mentioned rule. Considering that his arrest was illegal, the search and seizure that resulted from it was likewise illegal.16 Consequently, the various drug paraphernalia that the police officers allegedly found in the house and seized are inadmissible, having proceeded from an invalid search and seizure. Since the confiscated drug paraphernalia is the very corpus delicti of the crime charged, the Court has no choice but to acquit the accused.17

One final note. The failure of the accused to object to the irregularity of his arrest by itself is not enough to sustain his conviction. A waiver of an illegal warrantless arrest does not carry with it a waiver of the inadmissibility of evidence seized during the illegal warrantless arrest.18

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

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

THIRD DIVISION

G.R. No. 156320 February 14, 2007

RODOLFO ABENES y GACUTAN, Petitioner, vs.HE HON. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

For review before the Court is the Decision1 dated November 29, 2002 of the Court of Appeals (CA) which affirmed the Joint Decision of the Regional Trial Court (RTC) of Pagadian City, Branch 19, dated June 5, 2000, finding Rodolfo Abenes y Gacutan (petitioner) guilty beyond reasonable doubt of Illegal Possession of High Powered Firearm and Ammunition under Presidential Decree No. 1866 (P.D. No. 1866) in Criminal Case No. 4559-98, and of violating Section 261(q) of Batas Pambansa Blg. 881 (B.P. Blg. 881), otherwise known as the Omnibus Election Code, vis-à-vis COMELEC Resolution No. 2958 (Gun Ban) in Criminal Case No. 4563-98.

Petitioner was charged under the following Informations:

In Criminal Case No. 4559-98 —

The undersigned Assistant City Prosecutor hereby accuses RODOLFO ABENES Y GACUTAN of the offense of ILLEGAL POSSESSION OF HIGH POWERED FIREARM & ITS AMMUNITIONS (Violation of P.D. No. 1866, as amended by R.A. No. 8294), committed as follows:

On May 8, 1998, at about 10:30 a.m., in Danlugan, Pagadian City, Philippines, within the jurisdiction of this Honorable Court, said RODOLFO ABENES Y GACUTAN did, then and there, willfully, unlawfully, and without any prior authority, license or permit to possess or carry the firearm hereunder described, have in his possession and control the following firearm classified as high powered, with its corresponding ammunitions and accessory, viz:

- one (1) cal. 45 pistol (NORINCO) bearing SN 906347;

- one (1) magazine for pistol cal. 45

- seven (7) rounds live ammunitions for cal. 45,

in gross violation of P.D. No. 1866 as amended by R.A. No. 8294.

CONTRARY TO LAW.2

In Criminal Case No. 4563-98 —

The undersigned Assistant City Prosecutor hereby accuses RODOLFO ABENES Y GACUTAN of Election Offense in violation of Sec. 261 (9)3 , BP 881 (OMNIBUS ELECTION CODE), vis-à-vis COMELEC RESOLUTION # 1958 (GUN BAN), committed as follows:

On May 8, 1998, at about 10:30 a.m. within the Election period which is from January 11, 1998 to June 30, 1998, in Danlugan, Pagadian City, Philippines, within the jurisdiction of this Honorable Court, said RODOLFO ABENES Y GACUTAN did, then and there, willfully, and unlawfully, carry in his person a cal. .45 (NORINCO) pistol, bearing serial number 906347, and loaded with seven (7) rounds of live ammunitions, without any prior authority from the COMELEC in gross violation of Sec. 261 (9) of BP 881 (OMNIBUS ELECTION CODE) in relation to COMELEC RESOLUTION No. 2958 (GUN BAN).

CONTRARY TO LAW.4

Upon arraignment, the petitioner pleaded not guilty. Trial ensued.

The facts, as found by the RTC and summarized by the CA, are as follows:

The prosecution showed that three days prior to the May 11, 1998 national and local elections, the Philippine National Police (PNP) of Pagadian City, through its Company Commander Major Pedronisto Quano, created a team composed of seven policemen with a directive to establish and man a checkpoint in Barangay Danlugan at said city, for the purpose of enforcing the Gun Ban which was then being implemented by the COMELEC. SPO3 Cipriano Q. Pascua was the designated team leader.

The team proceeded to Barangay Danlugan, arriving thereat at 8:15 in the morning of May 8, 1998. Team leader SPO3 Pascua coordinated with the Barangay Chairman of Danlugan, and the team put up a road block with the marking "COMELEC GUN BAN". Vehicles passing through the road block were required by the team to stop and their occupants were then politely requested to alight in order to allow routine inspection and checking of their vehicles. Motorists who refused the request were not forced to do so.

At about 10:30 in the morning of the same day, a red Tamaraw FX trying to pass through the check point was stopped by the team and directed to park at the side of the road. As the occupants within the vehicle could not be seen through its tinted windows, SPO1 Eliezer Requejo, a member of the team, knocked on the vehicle’s window and requested the occupants to step down for a routine inspection. The eight occupants, which included the accused-appellant Rodolfo Abenes who is the Barangay Chairman of Tawagan Norte, Labangan, Zamboanga Del Sur, alighted from the vehicle. At this juncture, SPO1 Requejo and SPO3 Pascua noticed that a holstered firearm was tucked at the right waist of Abenes. The firearm was readily visible to the policemen; it was not covered by the shirt worn by Abenes. Abenes was then asked by SPO3 Pascua whether he had a license and authority to carry the firearm, and whether his possession was exempted from the Gun Ban being enforced by the COMELEC. Accused answered in the affirmative. The policemen then demanded for the pertinent documents to be shown to support Abenes’ claim. He could not show any. Hence, SPO1 Requejo confiscated Abenes’ firearm, which was later identified as a Norinco .45 caliber pistol bearing Serial No. 906347, including its magazine containing seven live ammunitions.

Subsequently SPO3 Pascua, using his privately owned jeep, brought Abenes to the PNP Headquarters at Camp Abelon in Pagadian City. Upon reaching the Headquarters, SPO3 Pascua indorsed Abenes to Major Quano who in turn referred Abenes to a certain SPO2 Benvienido Albon for further investigation (TSN, August 24, 1998 [SPO3 Cipriano Q. Pascua] pp. 5-27, [SPO1 Eliezer Requejo] pp. 29-50).

A certification dated May 18, 1998 from the Firearms and Explosives License Processing Section of the PNP, Pagadian City disclosed that Abenes is not a registered nor a licensed firearm holder (Record of Criminal Case No. 4559-98, p. 56).

After the prosecution presented its evidence, [the] accused filed a Demurrer to Evidence with Motion to Dismiss (supra, pp. 72-79), which was denied by the trial court in a Resolution dated March 5, 1999 (supra, pp. 80-82).

In his defense, accused-appellant tried to establish that the firearm did not belong to and was not recovered from him; that the firearm was recovered by the policemen from the floor of the vehicle inside a clutch bag which was allegedly left by an unidentified person who hitched a ride somewhere along the national highway of Tawagan Norte Zamboanga Del Sur and alighted near the Mabuhay Bazaar in Pagadian City (TSN, July 12, 1999 [Noel Rivera], pp. 7-13; September 15, 1999 [Rodolfo Abenes], pp. 11-15; September 27, 1999 [Manuel Sabado Gengania], pp. 9-16).5

On June 5, 2000, the RTC rendered its Joint Decision convicting the petitioner on both charges, the dispositive portion of which states:

WHEREFORE, in view of all the foregoing discussion, this Court hereby finds accused Rodolfo Abenes y Gacutan GUILTY beyond reasonable doubt for Violation of P.D. No. 1866, as amended by Republic Act No. 8294, having been found in possession without license/permit of a Norinco .45 caliber pistol bearing Serial No. 906347 and 7 rounds of ammunitions and sentences him to imprisonment ranging from TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY of PRISION CORRECCIONAL in its MEDIUM PERIOD, as MINIMUM, to EIGHT (8) YEARS of PRISION MAYOR in its MINIMUM, as MAXIMUM and a FINE of THIRTY THOUSAND PESOS (P30,000.00), Philippine currency. Insofar as Criminal Case No. 4559-98 is concerned. The .45 Caliber Pistol aforementioned and the seven (7) rounds of ammunitions are hereby forfeited in favor of the government the same being effects of the Violation of P.D. 1866, amended.

As regards Criminal Case No. 4563-98, this Court also finds herein accused Rodolfo Abenes y Gacutan GUILTY of Violation of Section 264, in relation to Section 261, paragraphs (p) and (q) of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code and sentences him to imprisonment for a period of ONE (1) YEAR, and in addition thereto, herein accused is disqualified to hold any public office and deprived [of] the right of suffrage. It shall be understood that the sentence herein imposed shall be served simultaneously with the sentence imposed in Criminal Case No. 4559-98.

SO ORDERED.6

The RTC found that, as between the positive and categorical assertions of facts by the two policemen – the witnesses for the prosecution – and the mere denial of the accused and his witnesses, the former must prevail over the latter; that the prosecution successfully proved that the petitioner had no license or permit to carry the firearm through the officer-in-charge of the firearms and explosives office who testified that, based on his records, the petitioner had not been issued a license, and whose testimony had not been impugned by the defense; and that the testimonies of the accused and his two witnesses to the effect that while aboard their private vehicle and on their way to attend an election campaign meeting, they simply stopped and allowed a complete stranger to hitch a ride who was carrying a clutch bag, left the same in the vehicle when he alighted, and which later turned out to contain the subject firearm, were flimsy and unbelievable. The RTC ruled that the defense of alibi or denial cannot prevail over the positive identification by eyewitnesses who have no improper motive to falsely testify against the petitioner, especially where the policemen and the petitioner do not know each other; and, that the petitioner failed to show any license or any other document to justify his lawful possession of the firearm.

The petitioner appealed to the CA claiming that the checkpoint was not shown to have been legally set up, and/or that the frisking of the petitioner who was ordered to alight from the Tamaraw FX, along with his companions in the vehicle, violated his constitutional right against unlawful search and seizure; and, that the trial court erred in believing the version of the incident as testified to by the policemen instead of the version presented by the defense’s witness which is more consistent with truth and human experience.7

On November 29, 2002, the CA rendered its Decision, the dispositive portion of which reads:

WHEREFORE, premises considered, the Joint Decision appealed from is AFFIRMED with the MODIFICATION that with respect to Criminal Case No. 4559-98, accused-appellant is sentenced to an indeterminate penalty of 4 years, 2 months and 1 day of prision correccional as minimum to 7 years and 4 months of prision mayor as maximum.

SO ORDERED.8

With respect to the validity of the checkpoint, the CA found that not only do the police officers have in their favor the presumption that official duties have been regularly performed, but also that the proximity of the day the checkpoint had been set up, to the day of the May 11, 1998 elections, specifically for the purpose of enforcing the COMELEC gun ban, gives a strong badge of the legitimacy of the checkpoint; that after a review of the records, the evidence adduced by the prosecution prevails over the self-serving and uncorroborated claim of the petitioner that he had been "framed"; and, that with respect to the admissibility of the firearm as evidence, the prosecution witnesses convincingly established that the .45 caliber pistol, tucked into the right waist of the petitioner when he alighted from the vehicle, was readily visible, and, therefore, could be seized without a search warrant under the "plain view" doctrine.

The petitioner is now before this Court, raising the following issues:

I.

Given the circumstances, and the evidence adduced, was the check-point validly established?

II.

Given the circumstances, and the evidence adduced, was the petitioner’s constitutional right against unlawful search and seizure violated?

III.

Given the circumstances, and the evidence adduced, did not the honorable court of appeals commit a grave abuse of discretion for adopting the trial court’s unsubstantiated findings of fact?

IV.

Given the circumstances, and the evidence adduced, is not the petitioner entitled to an acquittal, if not on the ground that the prosecution failed to prove guilt beyond reasonable doubt, on the ground of reasonable doubt itself . . . as to where the gun was taken: from the floor of the vehicle or from the waist of petitioner?9

The appeal is partly meritorious. The Court reverses the CA’s finding of his conviction in Criminal Case No. 4559-98.

After a thorough review of the records, this Court is of the view that the courts a quo – except for a notable exception with respect to the negative allegation in the Information – are correct in their findings of fact. Indeed, the version of the defense, as found by the lower courts, is implausible and belies the common experience of mankind. Evidence to be believed must not only proceed from the mouth of a credible witness but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances.10 In addition, the question of credibility of witnesses is primarily for the trial court to determine.11 For this reason, its observations and conclusions are accorded great respect on appeal.12

The trial court's assessment of the credibility of a witness is entitled to great weight. It is conclusive and binding unless shown to be tainted with arbitrariness or unless, through oversight, some fact or circumstance of weight and influence has not been considered.13 Absent any showing that the trial judge overlooked, misunderstood, or misapplied some facts or circumstances of weight which would affect the result of the case, or that the judge acted arbitrarily, his assessment of the credibility of witnesses deserves high respect by appellate courts.14 Thus, the Court finds no cogent reason to disturb the findings of the lower courts that the police found in plain view a gun tucked into the waist of the petitioner during the Gun Ban period enforced by the COMELEC.

So too must this Court uphold the validity of the checkpoint. The petitioner insists that the prosecution should have produced the mission order constituting the checkpoint, and invokes Aniag, Jr. v. Comelec,15 where the Court purportedly held that firearms seized from a motor vehicle without a

warrant are inadmissible because there was no indication that would trigger any suspicion from the policemen nor any other circumstance showing probable cause.

On both points the petitioner is wrong. In the present case, the production of the mission order is not necessary in view of the fact that the checkpoint was established three days before the May 11, 1998 elections; and, the circumstances under which the policemen found the gun warranted its seizure without a warrant.

In People v. Escaño,16 the Court, through the ponencia of Chief Justice Hilario G. Davide, Jr., held:

Accused-appellants assail the manner by which the checkpoint in question was conducted. They contend that the checkpoint manned by elements of the Makati Police should have been announced. They also complain of its having been conducted in an arbitrary and discriminatory manner.

We take judicial notice of the existence of the COMELEC resolution imposing a gun ban during the election period issued pursuant to Section 52(c) in relation to Section 26(q) of the Omnibus Election Code (Batas Pambansa Blg. 881). The national and local elections in 1995 were held on 8 May, the second Monday of the month. The incident, which happened on 5 April 1995, was well within the election period.

This Court has ruled that not all checkpoints are illegal. Those which are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists are allowed. For, admittedly, routine checkpoints do intrude, to a certain extent, on motorists’ right to "free passage without interruption," but it cannot be denied that, as a rule, it involves only a brief detention of travelers during which the vehicle’s occupants are required to answer a brief question or two. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual’s right against unreasonable search. In fact, these routine checks, when conducted in a fixed area, are even less intrusive.

The checkpoint herein conducted was in pursuance of the gun ban enforced by the COMELEC. The COMELEC would be hard put to implement the ban if its deputized agents were limited to a visual search of pedestrians. It would also defeat the purpose for which such ban was instituted. Those who intend to bring a gun during said period would know that they only need a car to be able to easily perpetrate their malicious designs.

The facts adduced do not constitute a ground for a violation of the constitutional rights of the accused against illegal search and seizure. PO3 Suba admitted that they were merely stopping cars they deemed suspicious, such as those whose windows are heavily tinted just to see if the passengers thereof were carrying guns. At best they would merely direct their flashlights inside the cars they would stop, without opening the car’s doors or subjecting its passengers to a body search. There is nothing discriminatory in this as this is what the situation demands.17 (Emphasis supplied)

Thus, the Court agrees with the Solicitor General that petitioner’s reliance on Aniag is misplaced.

In Aniag, the police officers manning the checkpoint near the Batasang Pambansa complex stopped the vehicle driven by the driver of Congressman Aniag. After stopping the vehicle, the police opened a package inside the car which contained a firearm purportedly belonging to Congressman Aniag. In declaring the search illegal, the Supreme Court stated that the law enforcers who conducted the search had no probable cause to check the content of the package because the driver did not behave suspiciously nor was there any previous information that a vehicle hiding a firearm would pass by the checkpoint.

In the instant case, the firearm was seized from the petitioner when in plain view, the policemen saw it tucked into his waist uncovered by his shirt.

Under the plain view doctrine, objects falling in the "plain view" of an officer who has a right to be in the position to have that view are subject to seizure and may be presented as evidence.18 The "plain view" doctrine applies when the following requisites concur: (a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (b) the discovery of the evidence in plain view is inadvertent; and (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure.19

All the foregoing requirements are present in the instant case. The law enforcement officers lawfully made an initial intrusion because of the enforcement of the Gun Ban and were properly in a position from which they particularly viewed the area. In the course of such lawful intrusion, the policemen came inadvertently across a piece of evidence incriminating the petitioner where they saw the gun tucked into his waist. The gun was in plain view and discovered inadvertently when the petitioner alighted from the vehicle.

As accurately found by the CA:

xxx It must be emphasized that the policemen discovered the firearm [on] the person of the [petitioner] shortly after he alighted from the vehicle and before he was frisked. SPO3 Pascua’s testimony[,] corroborated by that of SPO1 Requejo[,] convincingly established that the holstered .45 caliber pistol tucked at the right waist of the [petitioner] was readily visible to the policemen (TSN, August 24, 1998, pp. 18, 37). Thus, notwithstanding the absence of a Search Warrant, the policemen may validly seize the firearm and the same is admissible in evidence against the [petitioner] pursuant to the "plain view doctrine" xxx.20

Nor can the Court believe petitioner’s claim that he could not have freely refused the "police orders" issued by the police team who were "armed to the teeth" and "in the face of such show of force." The courts a quo consistently found that the police team manning the checkpoint politely requested the passengers to alight from their vehicles, and the motorists who refused this request were not forced to do so. These findings of fact are fully supported by the evidence in the record.

However, the Court must underscore that the prosecution failed to satisfactorily prove the negative allegation in the Information that the petitioner possessed no license or permit to bear the subject firearm.

It is a well-entrenched rule "that in crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz: the existence of the subject firearm, and the fact that the accused who owned or possessed the firearm does not have the corresponding license or permit to possess the same."21

Undoubtedly, it is the constitutional presumption of innocence that lays such burden upon the prosecution. The absence of such license and legal authority constitutes an essential ingredient of the offense of illegal possession of firearm, and every ingredient or essential element of an offense must be shown by the prosecution by proof beyond reasonable doubt.22

Witness for the prosecution SPO4 Gilbert C. Senados admitted that his records were outdated, i.e., that his Master List of holders of firearms only covered licenses up to 1994; that it was possible for the petitioner to acquire a license after 1994; and that he issued the Certification, dated May 18, 1998, stating that the petitioner carried no license or permit to possess the guns because he was ordered to do so by his superiors.23

There is no evidence that between 1994 and May 8, 1998, the date the crime was allegedly committed, no license was issued to petitioner.

While the prosecution was able to establish the fact that the subject firearm was seized by the police from the possession of the petitioner, without the latter being able to present any license or permit to possess the same, such fact alone is not conclusive proof that he was not lawfully authorized to carry such firearm. In other words, such fact does not relieve the prosecution from its duty to establish the lack of a license or permit to carry the firearm by clear and convincing evidence, like a certification from the government agency concerned.24

Thus, for failure of the prosecution to prove beyond reasonable doubt that petitioner was carrying a firearm without prior authority, license or permit, the latter must be exculpated from criminal liability under P.D. No. 1866, as amended.

With respect to the charge of violating Section 261(q) of B.P. Blg. 881, as amended, otherwise known as the Omnibus Election Code, the Court is constrained to affirm the conviction of the petitioner, since the prosecution successfully discharged its burden of proof.

Section 261 of B.P. Blg. 881 (Omnibus Election Code), as originally worded, provides:

Sec. 261. Prohibited Acts. – The following shall be guilty of an election offense:

(q) Carrying firearms outside residence or place of business. – Any person who, although possessing a permit to carry firearms, carries any firearms outside his residence or place of business during the election period, unless authorized in writing by the Commission: Provided, That a motor vehicle, water or air craft shall not be considered a residence or place of business or extension hereof.

x x x x (Emphasis supplied)

Section 32 of Republic Act No. 7166 (R.A. No. 7166), amending Section 261 of the Omnibus Election Code, provides:

SEC. 32. Who May Bear Firearms. – During the election period, no person shall bear, carry or transport firearms or other deadly weapons in public places, including any building, street, park, private vehicle or public conveyance, even if licensed to possess or carry the same, unless authorized in writing by the Commission. The issuance of firearm licenses shall be suspended during the election period. (Emphasis supplied)

In view of the foregoing provisions, while it is well-settled that under P.D. No. 1866, as amended, the burden to prove the negative allegation that the accused has no license or permit to carry a firearm lies with the prosecution; under the Omnibus Election Code, however, the burden to adduce evidence that accused is exempt from the COMELEC Gun Ban, lies with the accused.

Section 32 of R.A. No. 7166 is clear and unequivocal25 that the prohibited act to which this provision refers is made up of the following elements: 1) the person is bearing, carrying, or transporting firearms or other deadly weapons; 2) such possession occurs during the election period; and, 3) the weapon is carried in a public place. Under said provision, it is explicit that even if the accused can prove that he is holding a valid license to possess such firearm, this circumstance by itself cannot exculpate him from criminal liability. The burden is on the accused to show that he has a written authority to possess such firearm issued by no less than the COMELEC.

On this point, the petitioner failed to present any form of such authority, and, therefore, his conviction must be affirmed.

Section 264 of the Omnibus Election Code provides:

Sec. 264. Penalties. – Any person found guilty of any election offense under this Code shall be punished with imprisonment of not less than one year but not more than six years and shall not be subject to probation. In addition, the guilty party shall be sentenced to suffer disqualification to hold public office and deprivation of the right of suffrage. If he is a foreigner, he shall be sentenced to deportation which shall be enforced after the prison term has been served.

The CA affirmed the penalty imposed by the RTC. However, the RTC failed to apply Section 1 of the Indeterminate Sentence Law26 which provides:

SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same.

Thus, the penalty that should be meted out to petitioner should have a minimum and a maximum period. The Court deems it reasonable that petitioner should suffer imprisonment for a period of one (1) year as the minimum and two (2) years, as the maximum.

Furthermore, under Section 34 of R.A. No. 7166, the subject firearm shall be disposed of according to existing laws, which, in this case, must be read in light of Article 45 of the Revised Penal Code, to wit:

Art. 45. Confiscation and forfeiture of the proceeds or instruments of the crime.— Every penalty imposed for the commission of a felony shall carry with it the forefeiture of the proceeds of the crime and the instruments or tools with which it was committed.

Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the Government, unless they be the property of a third person not liable for the offense, but those articles which are not subject of lawful commerce shall be destroyed.1awphi1.net

WHEREFORE, the petition is partly GRANTED. The Decision dated November 29, 2002 of the Court of Appeals is REVERSED and SET ASIDE insofar as Criminal Case No. 4559-98 is concerned. Petitioner Rodolfo Abenes Y Gacutan is ACQUITTED from the charge of illegal possession of firearm under P.D. No. 1866, as amended, for failure of the prosecution to prove his guilt beyond unreasonable doubt.

With respect to Criminal Case No. 4563-98, the assailed Decision of the Court of Appeals is AFFIRMED with MODIFICATIONS that petitioner is sentenced to an indeterminate sentence of one year of imprisonment as minimum to two years of imprisonment as maximum, not subject to probation; and he shall suffer DISQUALIFICATION to hold public office and DEPRIVATION of the right of suffrage. The subject firearm is CONFISCATED and FORFEITED in favor of the Government.

SO ORDERED.

Today is Monday, January 12, 2015

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Republic of the PhilippinesSUPREME COURTManila

THIRD DIVISION

G.R. No. 182010 August 25, 2010

SUSAN ESQUILLO Y ROMINES, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

CARPIO MORALES, J.:

Via petition erroneously captioned as one for Certiorari, Susan Esquillo y Romines (petitioner) challenges the November 27, 2007 Decision1 of the Court of Appeals in CA-G.R. CR No. 27894 which affirmed the July 28, 2003 Decision of Branch 116 of the Regional Trial Court (RTC) of Pasay City in Criminal Case No. 02-2297 convicting Susan Esquillo y Romines (petitioner) for violating Section 11, Article II of Republic Act (R.A.) No. 9165 (the Comprehensive Dangerous Drugs Act of 2002) – possession of methamphetamine hydrochloride or shabu.

The accusatory portion of the Information dated December 12, 2002 indicting petitioner reads:

That on or about the 10th day of December, 2002 in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law, did then and there willfully, unlawfully and feloniously have in her possession, custody and control 0.1224 gram of Methylamphetamine Hydrochloride (shabu).2 (underscoring supplied)

At the trial, petitioner admitted the genuineness and due execution of the documentary evidence of the prosecution, particularly the Dangerous Drugs and Toxicology Reports issued by National Bureau of Investigation (NBI) Forensic Chemist Antonino de Belen (de Belen),3 subject to her defenses, to thus dispense with the testimony of de Belen.

De Belen recorded the results of the laboratory examination of the contents of the sachet in Dangerous Drugs Report No. DD-02-613,4 viz:

x x x x

SPECIMEN:

White crystalline substance contained in a heat-sealed transparent plastic sachet marked "SRE" and further placed in bigger marked transparent plastic sachet.

x x x x

F I N D I N G S:

Net Weight of specimen = 0.1224 gram

Examinations conducted on the above-mentioned specimen gave POSITIVE RESULTS for METHAMPHETAMINE HYDROCHLORIDE, a dangerous drug. x x x

x x x x (emphasis and underscoring supplied)

With respect to the examination of the urine of petitioner, de Belen recorded the results thereof in Toxicology Report No. TDD-02-41285 reading:

x x x x

SPECIMEN:

Urine of one SUSAN ESQUILLO Y ROMINES. 37 y/o, married, jobless, of no. 1159 Bo. Bayanihan, Maricaban, Pasay City.

x x x x

F I N D I N G S:

Volume of urine = 60 mL.

pH of urine = 5.0

Appearance = yellow orange, turbid

Examinations conducted on the above-mentioned specimen gave POSITIVE RESULTS for the presence of METHAMPHETAMINE HYDROCHLORIDE, and its metabolite AMPHETAMINE. x x x

x x x x (emphasis and underscoring supplied)

Based on its documentary evidence and the testimony of PO1 Alvin Cruzin (PO1 Cruzin),6 a member of the Pasay City Police Station Special Operations Group (SOG), the prosecution established its version as follows:

On the basis of an informant’s tip, PO1 Cruzin, together with PO2 Angel Aguas (PO2 Aguas), proceeded at around 4:00 p.m. on December 10, 2002 to Bayanihan St., Malibay, Pasay City to conduct surveillance on the activities of an alleged notorious snatcher operating in the area known only as "Ryan."

As PO1 Cruzin alighted from the private vehicle that brought him and PO2 Aguas to the target area, he glanced in the direction of petitioner who was standing three meters away and seen placing inside a yellow cigarette case what appeared to be a small heat-sealed transparent plastic sachet containing white substance. While PO1 Cruz was not sure what the plastic sachet contained, he became suspicious when petitioner started acting strangely as he began to approach her. He then introduced himself as a police officer to petitioner and inquired about the plastic sachet she was placing

inside her cigarette case. Instead of replying, however, petitioner attempted to flee to her house nearby but was timely restrained by PO1 Cruzin who then requested her to take out the transparent plastic sachet from the cigarette case.

After apprising petitioner of her constitutional rights, PO1 Cruzin confiscated the plastic sachet7 on which he marked her initials "SRE." With the seized item, petitioner was brought for investigation to a Pasay City Police Station where P/Insp. Aquilino E. Almanza, Chief of the Drug Enforcement Unit, prepared a memorandum8 dated December 10, 2002 addressed to the Chief Forensic Chemist of the NBI in Manila requesting for: 1) a laboratory examination of the substance contained in the plastic sachet to determine the presence of shabu, and 2) the conduct of a drug test on the person of petitioner. PO1 Cruzin and PO2 Aguas soon executed a Joint Affidavit of Apprehension9 recounting the details of their intended surveillance and the circumstances leading to petitioner’s arrest.

Repudiating the charges, petitioner10 gave the following tale:

At around 1:00 to 2:00 p.m. of the date in question, while she was sick and resting at home, several policemen in civilian garb with guns tucked in their waists barged in and asked her whether she knew one named "Ryan" who they claimed was a notorious snatcher operating in the area, to which she replied in the negative. The police officers then forced her to go with them to the Pasay City Police Station-SOG office where she was detained.

While she was under detention, the police officers were toying with a wallet which they claimed contained shabu and recovered from her.

In fine, petitioner claimed that the evidence against her was "planted," stemming from an all too obvious attempt by the police officers to extort money from her and her family.

Two other witnesses for the defense, petitioner’s daughter Josan Lee11 and family friend Ma. Stella Tolentino,12 corroborated petitioner’s account. They went on to relate that the police officers never informed them of the reason why they were taking custody of petitioner.

By Decision13 of July 28, 2003, the trial court found petitioner guilty of illegal possession of Methylamphetamine Hydrochloride or shabu, disposing as follows:

WHEREFORE, in light of the foregoing premises and considerations, this Court hereby renders judgment finding the accused Susan Esquillo y Romines GUILTY beyond reasonable doubt of the crime of Violation of par. 3 of Section 11, Article II of R. A. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and absent any modifying circumstance to either aggravate or mitigate the criminal liability of the same accused, and furthermore, applying the provisions of the Indeterminate Sentence Law, the same accused is hereby sentenced to suffer the penalty of imprisonment ranging from Eight (8) years and One (1) day, as minimum, to Fourteen (14) years, Eight (8) months and One (1) day, as maximum, and to pay a fine of P350,000.00, Philippine Currency, plus costs.

The 0.1224 gram of Methylamphetamine Hydrochloride or "Shabu" involved in this case is declared forfeited in favor of the Government and ordered to be turned over to the Philippine Drug Enforcement Agency (PDEA) for proper and appropriate disposition in accordance with the provisions of the law.14 (underscoring supplied)

Before the Court of Appeals, appellant questioned as illegal her arrest without warrant to thus render any evidence obtained on the occasion thereof inadmissible.

In its challenged Decision affirming petitioner’s conviction, the appellate court, citing People v. Chua,15 held that the police officers had probable cause to search petitioner under the "stop-and-frisk" concept, a recognized exception to the general rule prohibiting warrantless searches.16

Brushing aside petitioner’s defense of frame-up, the appellate court noted that petitioner failed to adduce evidence that the arresting officers were impelled by any evil motive to falsely charge her, and that she was even found positive for substance abuse.1âwphi1

In her present petition, petitioner assails the appellate court’s application of the "stop-and-frisk" principle in light of PO1 Cruzin’s failure to justify his suspicion that a crime was being committed, he having merely noticed her placing something inside a cigarette case which could hardly be deemed suspicious. To petitioner, such legal principle could only be invoked if there were overt acts constituting unusual conduct that would arouse the suspicion.17

Respondent, through the Office of the Solicitor General, prays for the affirmance of the appealed decision but seeks a modification of the penalty to conform to the pertinent provisions of R.A. No. 9165.

Appellant’s conviction stands.

Petitioner did not question early on her warrantless arrest – before her arraignment. Neither did she take steps to quash the Information on such ground. Verily, she raised the issue of warrantless arrest – as well as the inadmissibility of evidence acquired on the occasion thereof– for the first time only on appeal before the appellate court.18 By such omissions, she is deemed to have waived any objections on the legality of her arrest.19

Be that as it may, the circumstances under which petitioner was arrested indeed engender the belief that a search on her was warranted. Recall that the police officers were on a surveillance operation as part of their law enforcement efforts. When PO1 Cruzin saw petitioner placing a plastic sachet containing white crystalline substance into her cigarette case, it was in his plain view. Given his training as a law enforcement officer, it was instinctive on his part to be drawn to curiosity and to approach her. That petitioner reacted by attempting to flee after he introduced himself as a police officer and inquired about the contents of the plastic sachet all the more pricked his curiosity.

That a search may be conducted by law enforcers only on the strength of a valid search warrant is settled. The same, however, admits of exceptions, viz:

(1) consented searches; (2) as an incident to a lawful arrest; (3) searches of vessels and aircraft for violation of immigration, customs, and drug laws; (4) searches of moving vehicles; (5) searches of automobiles at borders or constructive borders; (6) where the prohibited articles are in "plain view;" (7) searches of buildings and premises to enforce fire, sanitary, and building regulations; and (8) "stop and frisk" operations.20 (emphasis underscoring supplied)

In the instances where a warrant is not necessary to effect a valid search or seizure, the determination of what constitutes a reasonable or unreasonable search or seizure is purely a judicial question, taking into account, among other things, the uniqueness of the circumstances involved including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured.21

Elucidating on what includes "stop-and-frisk" operation and how it is to be carried out, the Court in People v. Chua22 held:

. . . the act of a police officer to stop a citizen on the street, interrogate him, and pat him for weapon(s) or contraband. The police officer should properly introduce himself and make initial inquiries, approach and restrain a person who manifests unusual and suspicious conduct, in order to check the latter’s outer clothing for possibly concealed weapons. The apprehending police officer must have a genuine reason, in accordance with the police officer’s experience and the surrounding conditions, to warrant the belief that the person to be held has weapons (or contraband) concealed about him. It should therefore be emphasized that a search and seizure should precede the arrest for this principle to apply.

This principle of "stop-and-frisk" search was invoked by the Court in Manalili v. Court of Appeals. In said case, the policemen chanced upon the accused who had reddish eyes, walking in a swaying manner, and who appeared to be high on drugs. Thus, we upheld the validity of the search as akin to a "stop-and-frisk." In People v. Solayao, we also found justifiable reason to "stop-and-frisk" the accused after considering the following circumstances: the drunken actuations of the accused and his companions, the fact that his companions fled when they saw the policemen, and the fact that the peace

officers were precisely on an intelligence mission to verify reports that armed persons w[h]ere roaming the vicinity. (emphasis and underscoring supplied; citations omitted)1âwphi1

What is, therefore, essential is that a genuine reason must exist, in light of the police officer’s experience and surrounding conditions, to warrant the belief that the person who manifests unusual suspicious conduct has weapons or contraband concealed about him. Such a "stop-and-frisk" practice serves a dual purpose: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer.23

From these standards, the Court finds that the questioned act of the police officers constituted a valid "stop-and-frisk" operation. The search/seizure of the suspected shabu initially noticed in petitioner’s possession - later voluntarily exhibited24 to the police operative - was undertaken after she was interrogated on what she placed inside a cigarette case, and after PO1 Cruzin introduced himself to petitioner as a police officer. And, at the time of her arrest, petitioner was exhibiting suspicious behavior and in fact attempted to flee after the police officer had identified himself.

It bears recalling that petitioner admitted the genuineness and due execution of the Dangerous Drugs and Toxicology Reports, subject, however, to whatever available defenses she would raise. While such admissions do not necessarily control in determining the validity of a warrantless search or seizure, they nevertheless provide a reasonable gauge by which petitioner’s credibility as a witness can be measured, or her defense tested.

It has not escaped the Court’s attention that petitioner seeks exculpation by adopting two completely inconsistent or incompatible lines of defense. On one hand, she argues that the "stop-and-frisk" search upon her person and personal effects was unjustified as it constituted a warrantless search in violation of the Constitution. In the same breadth, however, she denies culpability by holding fast to her version that she was at home resting on the date in question and had been forcibly dragged out of the house by the police operatives and brought to the police station, for no apparent reason than to try and extort money from her. That her two witnesses – a daughter and a friend – who were allegedly present at the time of her arrest did not do anything to report it despite their claim that they were not informed why she was being arrested, should dent the credibility of their testimony.

Courts have tended to look with disfavor on claims of accused, such as those of petitioner’s, that they are victims of a frame-up. The defense of frame-up, like alibi, has been held as a shop-worn defense of the accused in drug-related cases, the allegation being easily concocted or contrived. For this claim to prosper, the defense must adduce clear and convincing evidence to overcome the presumption of regularity of official acts of government officials. This it failed to do.

Absent any proof of motive to falsely accuse petitioner of such a grave offense, the presumption of regularity in the performance of official duty and the findings of the trial court with respect to the credibility of witnesses prevail over that of petitioner.25

A word on the penalty.

While the appellate court affirmed the trial court’s decision, it overlooked the error in the penalty imposed by the trial court. The trial court, applying the provisions of the Indeterminate Sentence Law, sentenced petitioner to "suffer the penalty of imprisonment ranging from Eight (8) years and One (1) day, as minimum, to Fourteen (14) years, Eight (8) months and One (1) day, as maximum."

Article II, Section 11 of R.A. No. 9165 provides, however:

Section 11. Possession of Dangerous Drugs.

x x x x

Otherwise, if the quantity involved is less than the foregoing quantities, the penalties shall be graduated as follows:

x x x x

(3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three hundred thousand pesos (P300,000) to Four hundred thousand pesos (P400,000), if the quantities of dangerous drugs are less than five (5) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil, metamphetamine hydrochloride or "shabu" or other dangerous drugs such as, but not limited to MDMA or "ecstacy," PMA, TMA, LSD, GHB and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possesses is far behind therapeutic requirements; or less than three hundred (300) grams of marijuana. (emphasis and underscoring supplied)

Section 1 of the Indeterminate Sentence Law provides that when the offense is punished by a law other than the Revised Penal Code, "the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by law and the minimum shall not be less than the minimum term prescribed by the same."

The prayer of the Office of the Solicitor General for a modification of the penalty is thus in order.

The Court, therefore, imposes on petitioner the penalty of imprisonment of twelve (12) years and one (1) day, as minimum, to fourteen (14) years, as maximum.

WHEREFORE, the assailed decision of the Court of Appeals is AFFIRMED, with the MODIFICATION that the penalty of imprisonment shall be twelve (12) years and one (1) day, as minimum, to fourteen (14) years, as maximum. In all other respects, the decision of the RTC in Criminal Case No. 02-2297 is AFFIRMED.

SO ORDERED.

  

   SECOND DIVISION

  

PEOPLE OF THEPHILIPPINES,

Plaintiff-Appellee,

 

 

 

- versus -

 

 ARNOLD MARTINEZ  YANGELES, EDGAR DIZONY FERRER, REZIN MARTINEZY CAROLINO, and RAFAELGONZALES Y CUNANAN,                          Accused-Appellants.

G.R. No. 191366 

Present:                                                 CARPIO, J.,Chairperson,NACHURA,PERALTA,ABAD, and

MENDOZA, JJ.     

 

Promulgated:

     December 13, 2010

 X ---------------------------------------------------------------------------------------X

  

D E C I S I O NMENDOZA, J.:           This is an appeal from the August 7, 2009 Decision[1] of the Court of Appeals (CA), in CA-G.R. HC-NO. 03269, which affirmed the February 13, 2008 Decision[2] of the Regional Trial Court, Branch 41, Dagupan City (RTC), in Criminal Case No. 2006-0525-D, finding the accused guilty of violating Section 13, in relation to Section 11, Article II of Republic Act No. 9165 for Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings. 

The Facts 

The Information indicting the accused reads: 

That on or about the 2nd day of September 2006, in the City of Dagupan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, ARNOLD MARTINEZ y ANGELES, EDGAR DIZON y FERRER, REZIN MARTINEZ y CAROLINO, ROLAND DORIA y DIAZ and RAFAEL GONZALES y CUNANAN, without authority of law, confederating together, acting jointly and helping one another, did then and there wilfully, unlawfully and criminally, sniff and possess dangerous drugs (shabu residues) contained in empty plastic sachets and rolled aluminum foil, during a party, or at a social gathering or meeting, or in the proximate company of at least two (2) person[s]. Contrary to Section 13, Article II, R.A. 9165.[3]

 Version of the Prosecution 

As culled from the testimonies of prosecution witnesses, Police Officer 1 Bernard Azardon (PO1 Azardon), one of the apprehending officers, and Police Inspector Lady Ellen Maranion (P/Insp. Maranion), the forensic chemical officer, it appears that on September 2, 2006, at around 12:45 o’clock in the afternoon, PO1 Azardon was on duty at the Police Community Precinct II along Arellano Street, Dagupan City, when a concerned citizen entered the precinct and reported that a pot session was going on in the house of accused Rafael Gonzales  (Gonzales) in Trinidad Subdivision, Dagupan City. Upon receipt of the report, PO1 Azardon, PO1 Alejandro Dela Cruz (PO1 Dela Cruz), and members of the Special Weapons and Tactics (SWAT) team hied to Trinidad Subdivision, Dagupan City. Upon inquiry from people in the area, the house of Gonzales was located.

 As the police officers entered the gate of the house, they saw accused Orlando Doria (Doria) coming out of the side door and immediately

arrested him.  Inside the house, they saw accused Gonzales, Arnold Martinez (A. Martinez), Edgar Dizon (Dizon), and Rezin Martinez (R. Martinez) in a room.  The four were surprised by the presence of the police.  In front of them were open plastic sachets (containing shabu residue), pieces of rolled used aluminum foil and pieces of used aluminum foil. 

 The accused were arrested and brought to the police precinct.  The items found in the room were seized and turned over to the Pangasinan

Provincial Police Crime Laboratory Officer, P/Insp. Maranion. The latter conducted a laboratory examination on the seized items and all 115 plastic sachets, 11 pieces of rolled used aluminum foil, and 27 of the 49 pieces of used aluminum foil tested positive for methamphetamine hydrochloride. The accused were subjected to a drug test and, except for Doria, they were found to be positive for methamphetamine hydrochloride. Version of the Defense           The defense, through its witnesses, accused A. Martinez, Dizon, and R. Martinez, claimed that in the morning of September 2, 2006, the three of them were along Arellano Street in Trinidad Subdivision, Dagupan City, to meet with a certain Apper who bumped the passenger jeep of R. Martinez and who was to give the materials for the painting of said jeep. As they were going around the subdivision looking for Apper, they saw Gonzales in front of his house and asked him if he noticed a person pass by.  While they were talking, Doria arrived.  It was then that five to seven policemen emerged and apprehended them. They were handcuffed and brought to the police station in Perez, Dagupan City, where they were incarcerated and charged with sniffing shabu. The Ruling of the RTC 

The case against Doria was dismissed on a demurrer to evidence.           On February 13, 2008, the RTC rendered its decision, the dispositve portion of which reads: 

WHEREFORE, premises considered, judgment is hereby rendered finding accused ARNOLD MARTINEZ y Angeles, EDGAR DIZON y Ferrer, REZIN MARTINEZ y Carolino, and RAFAEL GONZALES y Cunanan GUILTY beyond reasonable doubt of the crime of Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings defined and penalized under Section 13

in relation to Section 11, Article II of Republic Act 9165, and each of them is sentenced to suffer the penalty of life imprisonment and to pay the fine in the amount of P500,000.00, and to pay the cost of suit. 

The subject items are hereby forfeited in favor of the government and to be disposed of in accordance with the law. 

SO ORDERED.[4]

 The RTC was of the view that the positive testimony of prosecution witness PO1 Azardon, without any showing of ill-motive on his part,

prevailed over the defenses of denial and alibi put up by the accused.  The accused were held to have been in constructive possession of the subject items. A conspiracy was also found present as there was a common purpose to possess the dangerous drug.   The Ruling of the CA 

The CA ruled that there was sufficient evidence to support the findings of the RTC as to the constructive possession of the dangerous drugs by the accused.  It further held that although the procedure regarding the custody and disposition of evidence prescribed by Section 21 of R.A. No. 9165 was not strictly complied with, the integrity and evidentiary value of the evidence were nonetheless safeguarded.  The CA was of the view that the presumption of regularity in the performance of official duty was not sufficiently controverted by the accused. 

Not in conformity, the accused now interposes this appeal before this Court praying for the reversal of the subject decision, presenting the following

 Assignment of Errors

  

For accused Arnold Martinez, Edgar Dizon and Rezin Martinez 

1.     The lower court erred in finding the accused-appellants        to be having a pot session at the time of their arrest;

 2.       The lower court erred in not seeing through the antics of the police to plant the shabu paraphernalia to justify the

arrest of the accused-appellants without warrant; 

3.       The lower court erred in not finding that the corpus delicti has not been sufficiently established; 4.       The lower court erred in not finding the uncorroborated testimony of PO1 Azardon insufficient to convict the

accused-appellants of the crime charged; 5.       The lower court erred in not acquitting the accused-appellants.

 For accused Rafael Gonzales 

I 

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

II 

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE PROSECUTION’S FAILURE TO ESTABLISH THE CHAIN OF CUSTODY OF THE ALLEGED CONFISCATED DRUG.

 After an assiduous assessment of the evidentiary records, the Court finds that the prosecution failed to prove the guilt of the accused. The

principal reasons are 1] that the evidence against the accused are inadmissible; and 2] that granting the same to be admissible, the chain of custody has not been duly established.

 Illegal Arrest, Search and Seizure 

Indeed, the accused is estopped from assailing the legality of his arrest if he fails to raise such issue before arraignment. [5] However, this waiver is limited only to the arrest. The legality of an arrest affects only the jurisdiction of the court over the person of the accused. A waiver of an illegal warrantless arrest does not carry with it a waiver of the inadmissibility of evidence seized during the illegal warrantless arrest. [6]   

Although the admissibility of the evidence was not raised as in issue by the accused, it has been held that this Court has the power to correct any error, even if unassigned, if such is necessary in arriving at a just decision,[7] especially when the transcendental matter of life and liberty is at stake.[8] While it is true that rules of procedure are intended to promote rather than frustrate the ends of justice, they nevertheless must not be met at the expense of substantial justice. Time and again, this Court has reiterated the doctrine that the rules of procedure are mere tools intended to facilitate the attainment of justice, rather than frustrate it. Technicalities should never be used to defeat substantive rights. [9]Thus, despite the procedural lapses of the accused, this Court shall rule on the admissibility of the evidence in the case at bench. The clear infringement of the accused’s right to be protected against unreasonable searches and seizures cannot be ignored.

 The State cannot, in a manner contrary to its constitutional guarantee, intrude into the persons of its citizens as well as into their houses,

papers and effects.[10] Sec. 2, Art. III, of the 1987 Constitution provides: 

Section 2. - The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

 This constitutional guarantee, however, is not a blanket prohibition against all searches and seizures without warrant. Arrests and seizures in

the following instances are allowed even in the absence of a warrant — (i) warrantless search incidental to a lawful arrest; [11] (ii) search of evidence in "plain view;" (iii) search of a moving vehicle; (iv) consented warrantless search; (v) customs search; (vi) stop and frisk; and (vii) exigent and emergency circumstances.[12]

 This case would appear to fall under either a warrantless search incidental to a lawful arrest or a plain view search, both of which require a

lawful arrest in order to be considered valid exceptions to the constitutional guarantee. Rule 113 of the Revised Rules of Criminal Procedure provides for the circumstances under which a warrantless arrest is lawful. Thus:

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

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

commit an offense; 

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

 (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he

is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

 In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to

the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. 

A review of the facts reveal that the arrest of the accused was illegal and the subject items were confiscated as an incident thereof.   According to the testimony of PO1 Azardon and his Joint Affidavit [13] with PO1 Dela Cruz, they proceeded to, and entered, the house of accused Gonzales based solely on the report of a concerned citizen that a pot session was going on in said house, to wit: 

Q:        I go back to the information referred to you by the informant, did he not tell you how many persons were actually conducting the pot session?A:        Yes, sir. Q:        When you went to the place of Rafael Gonzales, of course you were not armed with a search warrant, correct?A:        None, sir. Q:        Before the information was given to you by your alleged informant, you did not know personally Rafael Gonzales?A:        I have not met [him] yet but I heard his name, sir.

 Q:        When this informant told you that he was told that there was [an] ongoing pot session in the house of Rafael Gonzales, was this report to you

placed in the police blotter before you proceeded to the house of Rafael Gonzales?A:        I think it was no longer recorded, sir. Q:        In other words, you did not even bother to get the personal data or identity of the person who told you that he was allegedly informed that there

was an ongoing pot session in the house of Rafael Gonzales?A:        What I know is that he is a jeepney driver of a downtown jeepney but he does not want to be identified because he was afraid, sir. Q:        And likewise, he did not inform you who told him that there was an ongoing pot session in the house of Rafael Gonzales?A:        No more, sir. Q:        But upon receiving such report from that jeepney driver you immediately formed a group and went to the place of Rafael Gonzales?A:        Yes, sir.

 x x x

 Q:          When you were at the open gate of the premises of Rafael Gonzales, you could not see what is happening inside the house of Rafael

Gonzales?A:          Yes, sir. Q:          You did not also see the alleged paraphernalia as well as the plastic sachet of shabu on the table while you were outside the premises of the

property of Rafael Gonzales? 

x x x 

Q:          Before they entered the premises they could not see the paraphernalia?  COURT:         Answer. A:        Of course because they were inside the room, how could we  see them, sir. Q:          But still you entered the premises, only because a certain person who told you that he was informed by another person that there was an

ongoing pot session going on inside the house of Rafael Gonzales?A:          Yes, sir. Q:          And that is the only reason why you barged in inside the house of Rafael Gonzales and you arrested the persons you saw?A:          Yes, sir.[14]

  Paragraph (c) of Rule 113 is clearly inapplicable to this case. Paragraphs (a) and (b), on the other hand, may be applicable and both require

probable cause to be present in order for a warrantless arrest to be valid. Probable cause has been held to signify a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man’s belief that the person accused is guilty of the offense with which he is charged.[15]

 Although this Court has ruled in several dangerous drugs cases[16] that tipped information is sufficient probable cause to effect a warrantless

search,[17] such rulings cannot be applied in the case at bench because said cases involve either a buy-bust operation or drugs in transit, basically, circumstances other than the sole tip of an informer as basis for the arrest. None of these drug cases involve police officers entering a house without warrant to effect arrest and seizure based solely on an informer’s tip.  The case ofPeople v. Bolasa[18]  is informative on this matter.

 In People v. Bolasa, an anonymous caller tipped off the police that a man and a woman were repacking prohibited drugs at a certain house.

The police immediately proceeded to the house of the suspects. They walked towards the house accompanied by their informer. When they reached the house, they peeped inside through a small window and saw a man and woman repacking marijuana. They then entered the house, introduced themselves as police officers, confiscated the drug paraphernalia, and arrested the suspects. This Court ruled:

 The manner by which accused-appellants were apprehended does not fall under any of the above-enumerated

categories. Perforce, their arrest is illegal. First, the arresting officers had no personal knowledge that at the time of their arrest, accused-appellants had just committed, were committing, or were about to commit a crime. Second, the arresting officers had no personal knowledge that a crime was committed nor did they have any reasonable ground to believe that accused-appellants committed it. Third, accused-appellants were not prisoners who have escaped from a penal establishment.

Neither can it be said that the objects were seized in plain view. First, there was no valid intrusion. As already discussed, accused-appellants were illegally arrested. Second, the evidence, i.e., the tea bags later on found to contain marijuana, was not inadvertently discovered. The police officers intentionally peeped first through the window before they saw and ascertained the activities of accused-appellants inside the room. In like manner, the search cannot be categorized as a search of a moving vehicle, a consented warrantless search, a customs search, or a stop and frisk; it cannot even fall under exigent and emergency circumstances, for the evidence at hand is bereft of any such showing.

On the contrary, it indicates that the apprehending officers should have conducted first a surveillance considering that the identities and address of the suspected culprits were already ascertained. After conducting the surveillance and determining the existence of probable cause for arresting accused-appellants, they should have secured a search warrant prior to effecting a valid arrest and seizure. The arrest being illegal ab initio, the accompanying search was likewise illegal. Every evidence thus obtained during the illegal search cannot be used against accused-appellants; hence, their acquittal must follow in faithful obeisance to the fundamental law.[19]

 It has been held that personal knowledge of facts in arrests without warrant must be based upon probable cause, which means an actual

belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when the suspicion, that the person to be arrested is probably guilty of committing an offense, is based on actual facts, that is, supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. [20]

 As to paragraph (a) of Section 5 of Rule 113, the arresting officers had no personal knowledge that at the time of the arrest, accused had just

committed, were committing, or were about to commit a crime, as they had no probable cause to enter the house of accused Rafael Gonzales in order to arrest them. As to paragraph (b), the arresting officers had no personal knowledge of facts and circumstances that would lead them to believe that the accused had just committed an offense. As admitted in the testimony of PO1 Azardon, the tip originated from a concerned citizen who himself had no personal knowledge of the information that was reported to the police:

 Q:        Mr. Witness, you claimed that the reason for apprehending all the accused was based on a tip-off by an informant?A:        Yes, sir.

 Q:        What exactly [did] that informant tell you?A:        He told us that somebody told him that there was an ongoing pot session in the house of one of the accused Rafael Gonzales, sir. Q:        You mean to say that it was not the informant himself to whom the information originated but from somebody else?A:        That was what he told me, sir. Q:        Because of that you proceeded to where the alleged pot session was going on?  [No Answer] Q:        Did you[r] informant particularly pinpointed [sic] to where the alleged pot session was going on?A:        No more because he did not go with us, sir. Q:        So you merely relied on what he said that something or a pot session was going on somewhere in Arellano but you don’t know the exact place

where the pot session was going on?A:        Yes, sir. Q:        And your informant has no personal knowledge as to the veracity of the alleged pot session because he claimed that he derived that

information from somebody else?A:        This is what he told us that somebody told him that there was an ongoing pot session, sir. Q:        Despite of [sic] that information you proceeded to where?A:        Trinidad Subdivision, sir. 

x x x Q:        Mr. Witness, did your informant named [sic] those included in the alleged pot session?A:        No, sir. Q:        That was, because your informant don’t [sic] know physically what was really happening there?A:        He was told by another person that there was an ongoing pot session there, sir. [21] [Emphasis supplied]

 Neither can it be said that the subject items were seized in plain view.   The elements of plainview are: (a) a prior valid intrusion based on the

valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who have the right to be where they are; (c) the evidence must be immediately apparent; and, (d) "plain view" justified mere seizure of evidence without further search.[22] 

 The evidence was not inadvertently discovered as the police officers intentionally entered the house with no prior surveillance or investigation

before they discovered the accused with the subject items. If the prior peeking of the police officers in Bolasa was held to be insufficient to constitute plain view, then more so should the warrantless search in this case be struck down.  Neither can the search be considered as a search of a moving vehicle, a consented warrantless search, a customs search, a stop and frisk, or one under exigent and emergency circumstances.

 The apprehending officers should have first conducted a surveillance considering that the identity and address of one of the accused were

already ascertained. After conducting the surveillance and determining the existence of probable cause, then a search warrant should have been secured prior to effecting arrest and seizure. The arrest being illegal, the ensuing search as a result thereof is likewise illegal.  Evidence procured on the occasion of an unreasonable search and seizure is deemed tainted for being the proverbial fruit of a poisonous tree and should be excluded. [23] The subject items seized during the illegal arrest are thus inadmissible. The drug, being the very corpus delicti of the crime of illegal possession of dangerous drugs, its inadmissibility thus precludes conviction, and calls for the acquittal of the accused.

 As has been noted previously by this Court, some lawmen, prosecutors and judges have glossed over illegal searches and seizures in cases

where law enforcers are able to present the alleged evidence of the crime, regardless of the methods by which they were obtained. This attitude tramples on constitutionally-guaranteed rights in the name of law enforcement. It is ironic that such enforcement of the law fosters the breakdown of our system of justice and the eventual denigration of society. While this Court appreciates and encourages the efforts of law enforcers to uphold the law and to preserve the peace and security of society, we nevertheless admonish them to act with deliberate care and within the parameters set by the Constitution and the law.[24] 

Chain of Custody           Even granting that the seized items are admissible as evidence, the acquittal of the accused would still be in order for failure of the apprehending officers to comply with the chain of custody requirement in dangerous drugs cases.

 The accused contend that the identity of the seized drug was not established with moral certainty as the chain of custody appears to be

questionable, the authorities having failed to comply with Sections 21 and 86 of R.A. No. 9165, and Dangerous Drug Board (DDB) Resolution No. 03, Series of 1979, as amended by Board Regulation No. 2, Series of 1990. They argue that there was no prior coordination with the Philippine Drug Enforcement Agency (PDEA), no inventory of the confiscated items conducted at the crime scene, no photograph of the items taken, no compliance with the rule requiring the accused to sign the inventory and to give them copies thereof, and no showing of how the items were handled from the time of confiscation up to the time of submission to the crime laboratory for testing. Therefore, the corpus delicti was not proven, thereby producing reasonable doubt as to their guilt.  Thus, they assert that the presumption of innocence in their favor was not overcome by the presumption of regularity in the performance of official duty. 

           The essential requisites to establish illegal possession of dangerous drugs are: (i) the accused was in possession of the dangerous drug, (ii)  such possession is not authorized by law, and (iii) the accused freely and consciously possessed the dangerous drug. [25]  Additionally, this being a case for violation of Section 13 of R.A. No. 9165, an additional element of the crime is (iv) the possession of the dangerous drug must have occurred during a party, or at a social gathering or meeting, or in the proximate company of at least two (2) persons. 

The existence of the drug is the very corpus delicti of the crime of illegal possession of dangerous drugs and, thus, a condition sine qua non for conviction. In order to establish the existence of the drug, its chain of custody must be sufficiently established. The chain of custody requirement is essential to ensure that doubts regarding the identity of the evidence are removed through the monitoring and tracking of the movements of the seized drugs from the accused, to the police, to the forensic chemist, and finally to the court. [26]  Malillin v. People was the first in a growing number of cases to explain the importance of chain of custody in dangerous drugs cases, to wit:

 As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded

by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same.[27]

 

Section 1(b) of DDB Regulation No. 1, Series of 2002,[28] defines chain of custody as follows: 

b. “Chain of Custody” means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and used in court as evidence, and the final disposition;                                                            

 

Paragraph 1, Section 21, Article II of R.A. No. 9165, provides for safeguards for the protection of the identity and integrity of dangerous drugs

seized, to wit: SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items  were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.

  

People v. Habana thoroughly discusses the proper procedure for the custody of seized or confiscated items in dangerous drugs cases in order

to ensure their identity and integrity, as follows: 

Usually, the police officer who seizes the suspected substance turns it over to a supervising officer, who would then send it by courier to the police crime laboratory for testing.  Since it is unavoidable that possession of the substance changes hand a number of times, it is imperative for the officer who seized the substance from the suspect to place his marking on its plastic container and seal the same, preferably with adhesive tape that cannot be removed without leaving a tear on the plastic container.  At the trial, the officer can then identify the seized substance and the procedure he observed to preserve its integrity until it reaches the crime laboratory.

 If the substance is not in a plastic container, the officer should put it in one and seal the same.  In this way the substance

would assuredly reach the laboratory in the same condition it was seized from the accused.  Further, after the laboratory technician tests and verifies the nature of the substance in the container, he should put his own mark on the plastic container and seal it again with a new seal since the police officer’s seal has been broken.  At the trial, the technician can then describe the sealed condition of the plastic container when it was handed to him and testify on the procedure he took afterwards to preserve its integrity. 

 If the sealing of the seized substance has not been made, the prosecution would have to present every police officer,

messenger, laboratory technician, and storage personnel, the entire chain of custody, no matter how briefly one’s possession has been.  Each of them has to testify that the substance, although unsealed, has not been tampered with or substituted while in his care.[29]

 

Section 21(a) of the Implementing Rules and Regulations (IRR) of R.A. No. 9165 further elaborates, and provides for, the possibility of non-

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

           Accordingly, non-compliance with the prescribed procedural requirements will not necessarily render the seizure and custody of the items void and invalid, provided that (i) there is a justifiable ground for such non-compliance, and (ii) the integrity and evidentiary value of the seized items are properly preserved. In this case, however, no justifiable ground is found availing, and it is apparent that there was a failure to properly preserve the integrity and evidentiary value of the seized items to ensure the identity of the corpus delicti from the time of seizure to the time of presentation in court. A review of the testimonies of the prosecution witnesses and the documentary records of the case reveals irreparably broken links in the chain of custody.           According to the apprehending police officers in their Joint Affidavit, the following were confiscated from the accused, to wit: 

a)     Several pcs of used empty plastic sachets containing suspected shabu residues. 

b)     Eight used (8) disposable lighters ( two (2) pcs colored orange, two (2) pcs colored yellow, one (1) pc colored green & one (1) pc colored white ).

 c)      Several pcs of used rolled aluminum foil containing suspected shabu residues.

 d)     Several pcs of used cut aluminum foil containing suspected shabu residues.

 e)     One (1) pc glass tube containing suspected shabu residues.[30]

[Emphases supplied] 

At the police station, the case, the accused, and the above-mentioned items were indorsed to Duty Investigator Senior Police Officer 1 Pedro Urbano, Jr. (SPO1 Urbano) for proper disposition.[31] A letter-request for laboratory examination was prepared by Police Superintendent Edgar Orduna Basbag for the following items:

 a)      Pieces of used empty small plastic sachets with suspected shabu residues marked “DC&A-1.” b)      Pieces of used rolled and cut aluminum foil with suspected shabu residues marked “DC&A-2.”

 c)      Pieces of used cut aluminum foil with suspected shabu residues marked “DC&A-3.”[32]

                                                                                [Emphases supplied] The letter-request and above-mentioned items were submitted to P/Insp. Maranion by SPO3 Froilan Esteban (SPO3 Esteban). Final

Chemistry Report No. D-042-06L listed the specimens which were submitted for testing, to wit: 

SPECIMENS SUBMITTED: A – A1 to A115 – One Hundred fifteen (115) open transparent plastic sachet with tag each containing suspected shabu residue without markings. B – B1 to B11 – Eleven (11) rolled used aluminum foil with tag each containing suspected shabu residue without markings. C – C1 to C49 – Forty-nine (49) used aluminum foil with tag each containing suspected shabu residue without markings.[33]

                                                                                    [Emphases supplied] Three days after the subject items were seized, or on September 5, 2006, a Confiscation Receipt was issued by PO1 Azardon and PO1 Dela

Cruz, which reads:

 DCPS AID SOTG                                                     05 September 2006

 CONFISCATION RECEIPT

  TO WHOM IT MAY CONCERN: 

THIS IS TO CERTIFY that on or about 12:45 noon of September 4, 2006, we together with our precinct supervisor, SPO4 Pedro Belen Jr., and SWAT members composed of SPO1 Marlon Decano, PO3 Manuel Garcia, PO2 Adriano Cepiroto and PO1 Aldrin Guarin apprehended the following names of persons of ARNOLD MARTINEZ Y ANGELES, 37 yrs old, married, jobless, a resident of Lucao Dist., this city; EDGAR DIZON Y FERRER, 36 yrs old, single, tricycle driver, a resident of 471 Lucao Dist., this city. REZIN MARTINEZ Y CAROLINO, 44 yrs old, married, jitney driver, a resident of Lucao Disttrict this city; ROLAND DORIA Y DIAZ, 39 yrs old, married, businessman, resident of Cabeldatan, Malasiqui, Pangasinan and RAFAEL GONZALES Y CUNANAN, 49 yrs old, separated, jobless and a resident of Trinidad Subd., Arellano-Bani this city. 

Suspects were duly informed of their constitutional rights and were brought to Dagupan City Police Station, Perez Market Site Dagupan City and indorsed to Duty Desk Officer to record the incident and the sachet of suspected Shabu Paraphernalias were brought to PNP Crime Laboratory, Lingayen, Pangasinan for Laboratory Examination. Seizing Officer: (sgd.)                                                              (sgd.)PO1 Bernard B Azardon                             PO1 Alejandro Dela CruzAffiant                                                            Affiant Remarks: Refused to SignedRefused to SignedRefused to SignedRefused to SignedRefused to Signed [34]

           [Emphases supplied]           The 115 open transparent plastic sachets, 11 pieces of rolled used aluminum foil, and 27 (of the 49) pieces of used aluminum foil, all containing shabu residue, as identified in the Final Chemistry Report, were presented in court and marked as Exhibits “H” and series, “I” and series, and “J” and series, respectively. Said items were identified by PO1 Azardon and P/Insp. Maranion at the witness stand.[35]

           The CA ruled that the integrity and evidentiary value of the subject items were properly preserved as there was sufficient evidence to prove that the items seized from the accused were the same ones forwarded to the crime laboratory for examination, as shown in the Confiscation Receipt and the letter-request for laboratory examination. 

A review of the chain of custody indicates, however, that the CA is mistaken.           First, the apprehending team failed to comply with Section 21 of R.A. No. 9165.  After seizure and confiscation of the subject items, no physical inventory was conductedin the presence of the accused, or their representative or counsel, a representative from the media and the DOJ, and any elected public official. Thus, no inventory was prepared, signed, and provided to the accused in the manner required by law.   PO1 Azardon, in his testimony,[36] admitted that no photographs were taken. The only discernable reason proffered by him for the failure to comply with the prescribed procedure was that the situation happened so suddenly.  Thus: 

Q:        But upon receiving such report from that jeepney driver you immediately formed a group and went to the place of Rafael Gonzales?

A:        Yes, sir. Q:        Such that you did not even inform the PDEA before you barged in that place of Rafael Gonzales?A:        It was so suddenly, [sic] sir. Q:        And that explains the reason why you were not able to have pictures taken, is that correct?A:        Yes, sir.[37]

           [Emphasis supplied]

 The Court does not find such to be a justifiable ground to excuse non-compliance. The suddenness of the situation cannot justify non-

compliance with the requirements. The police officers were not prevented from preparing an inventory and taking photographs. In fact, Section 21(a) of the IRR of R.A. No. 9165 provides specifically that in case of warrantless seizures, the inventory and photographs shall be done at the nearest police station or at the nearest office of the apprehending officer/team. Whatever effect the suddenness of the situation may have had should have dissipated by the time they reached the police station, as the suspects had already been arrested and the items seized.  Moreover, it has been held that in case of warrantless seizures nothing prevents the apprehending officer from immediately conducting the physical inventory and photography of the items at their place of seizure, as it is more in keeping with the law’s intent to preserve their integrity and evidentiary value.[38]

                   This Court has repeatedly reversed conviction in drug cases for failure to comply with Section 21 of R.A. No. 9165, resulting in the failure to properly preserve the integrity and evidentiary value of the seized items. Some cases are People v. Garcia,[39] People v. Dela Cruz,[40] People v. Dela Cruz,[41] People v. Santos, Jr.,[42] People v. Nazareno,[43] People v. Orteza,[44] Zarraga v. People,[45] and People v. Kimura.[46]

 Second, the subject items were not properly marked. The case of People v. Sanchez is instructive on the requirement of marking, to wit: 

What Section 21 of R.A. No. 9165 and its implementing rule do not expressly specify is the matter of "marking" of the seized items in warrantless seizures to ensure that the evidence seized upon apprehension is the same evidence subjected to inventory and photography when these activities are undertaken at the police station rather than at the place of arrest. Consistency with the "chain of custody" rule requires that the "marking" of the seized items - to truly ensure that they are the same items that enter the chain and are eventually the ones offered in evidence - should be done (1) in the presence of the apprehended violator (2) immediately upon confiscation. This step initiates the process of protecting innocent persons from dubious and concocted searches, and of protecting as well the apprehending officers from harassment suits based on planting of evidence under Section 29 and on allegations of robbery or theft.

 For greater specificity, "marking" means the placing by the apprehending officer or the poseur-buyer of his/her initials and

signature on the item/s seized. x x x Thereafter, the seized items shall be placed in an envelope or an evidence bag unless the type and quantity of the seized items require a different type of handling and/or container. The evidence bag or container shall accordingly be signed by the handling officer and turned over to the next officer in the chain of custody.[47] [Emphasis in the original] Nowhere in the testimony of PO1 Azardon or in his Joint Affidavit with PO1 Dela Cruz does it appear that the subject items were at all marked.

It was only in the letter-request for laboratory examination that the subject items were indicated to have been marked with “DC&A-1,” “DC&A-2” and “DC&A-3.”  There is no showing, however, as to who made those markings and when they were made.  Moreover, those purported markings were never mentioned when the subject items were identified by the prosecution witnesses when they took the stand.

 The markings appear to pertain to a group of items, that is, empty plastic sachets, rolled and cut aluminium foil, and cut aluminium foil, but do

not specifically pertain to any individual item in each group.  Furthermore, it was only in the Chemistry Report[48] that the precise number of each type of item was indicated and enumerated.  The Court notes that in all documents prior to said report, the subject items were never accurately quantified but only described as “pieces,”[49] “several pcs,”[50] and “shabu paraphernallas.”[51]  Strangely, the Chemistry Report indicates that all the subject items had “no markings,” although each item was reported to have been marked by P/Insp. Maranion in the course of processing the subject items during laboratory examination and testing.[52] Doubt, therefore, arises as to the identity of the subject items.  It cannot be determined with moral certainty that the subject items seized from the accused were the same ones subjected to the laboratory examination and presented in court.

 This Court has acquitted the accused for the failure and irregularity in the marking of seized items in dangerous drugs cases, such as Zarraga

v. People,[53] People v. Kimura,[54] and People v. Laxa.[55]

           Third, the Confiscation Receipt relied upon by the prosecution and the courts below gives rise to more uncertainty. Instead of being prepared on the day of the seizure of the items, it was prepared only three days after.   More important, the receipt did not even indicate exactly what items were confiscated and their quantity. These are basic information that a confiscation receipt should provide. The only information contained in the Confiscation Receipt was the fact of arrest of the accused and the general description of the subject items as “the sachet of suspected Shabu paraphernallas were brought to the PNP Crime Laboratory.” The receipt is made even more dubious by PO1 Azardon’s admission in his testimony [56] that he did not personally prepare the Confiscation Receipt and he did not know exactly who did so.           Fourth, according to the Certification[57] issued by the Dagupan Police Station, the subject items were indorsed by PO1 Dela Cruz to Duty Investigator SPO1 Urbano for proper disposition.  These were later turned over by SPO3 Esteban to P/Insp. Maranion. There is, however, no showing of how and when the subject items were transferred from SPO1 Urbano to SPO3 Esteban.           Fifth, P/Insp. Maranion appears to be the last person in the chain of custody. No witness testified on how the subject items were kept after they were tested prior to their presentation in court.  This Court has highlighted similar shortcomings in People v.  Cervantes,[58] People v. Garcia,[59] People v. Sanchez,[60] and Malillin v. People.[61]

 More irregularities further darken the cloud as to the guilt of the accused.  Contrary to PO1 Azardon’s testimony[62] that they were tipped off by

a concerned citizen while at the police station, the Letter[63] to the Executive Director of the DDB states that the apprehending officers were tipped off “while conducting monitoring/surveillance.” Said letter also indicates, as does the Confiscation Receipt, that the arrest and seizure occurred on September 4, 2006, and not September 2, 2006, as alleged in the Information.  It was also mentioned in the aforementioned Certification of the Dagupan Police and Joint Affidavit of the police officers that a glass tube suspected to contain shabu residue was also confiscated from the accused. Interestingly, no glass tube was submitted for laboratory examination. 

In sum, numerous lapses and irregularities in the chain of custody belie the prosecution’s position that the integrity and evidentiary value of the subject items were properly preserved. The two documents specifically relied on by the CA, the Confiscation Receipt and the letter-request for laboratory examination, have been shown to be grossly insufficient in proving the identity of the corpus delicti. The corpus delicti in dangerous drugs cases constitutes the drug itself. This means that proof beyond reasonable doubt of the identity of the prohibited drug is essential before the accused can be found guilty.[64]

 Regarding the lack of prior coordination with the PDEA provided in Section 86 of R.A. No. 9165, in People v. Sta. Maria,[65] this Court held that

said section was silent as to the consequences of such failure, and said silence could not be interpreted as a legislative intent to make an arrest without the participation of PDEA illegal, nor evidence obtained pursuant to such an arrest inadmissible. Section 86 is explicit only in saying that the PDEA shall be the “lead agency” in the investigation and prosecution of drug-related cases. Therefore, other law enforcement bodies still possess authority to perform similar functions as the PDEA as long as illegal drugs cases will eventually be transferred to the latter.

Let it be stressed that non-compliance with Section 21 of R.A. No. 9165 does not affect the admissibility of the evidence but only its weight.[66] Thus, had the subject items in this case been admissible, their evidentiary merit and probative value would be insufficient to warrant conviction.

It may be true that where no ill motive can be attributed to the police officers, the presumption of regularity in the performance of official duty should prevail.  However, such presumption obtains only when there is no deviation from the regular performance of duty. [67]  Where the official act in question is irregular on its face, the presumption of regularity cannot stand. 

In this case, the official acts of the law enforcers were clearly shown and proven to be irregular. When challenged by the evidence of a flawed chain of custody, the presumption of regularity cannot prevail over the presumption of innocence of the accused.[68] 

This Court once again takes note of the growing number of acquittals for dangerous drugs cases due to the failure of law enforcers to observe the proper arrest, search and seizure procedure under the law. [69] Some bona fide arrests and seizures in dangerous drugs cases result in the acquittal of the accused because drug enforcement operatives compromise the integrity and evidentiary worth of the seized items. It behooves this Court to remind law enforcement agencies to exert greater effort to apply the rules and procedures governing the custody, control, and handling of seized drugs.

It is recognized that strict compliance with the legal prescriptions of R.A. No. 9165 may not always be possible. Thus, as earlier stated, non-compliance therewith is not necessarily fatal. However, the lapses in procedure must be recognized, addressed and explained in terms of their justifiable grounds, and the integrity and evidentiary value of the evidence seized must be shown to have been preserved.[70]  

On a final note, this Court takes the opportunity to be instructive on Sec. 11[71] (Possession of Dangerous Drugs) and Sec. 15[72] (Use of Dangerous Drugs) of R.A. No. 9165, with regard to the charges that are filed by law enforcers. This Court notes the practice of law enforcers of filing charges under Sec. 11 in cases where the presence of dangerous drugs as basis for possession is only and solely in the form of residue, being subsumed under the last paragraph of Sec. 11.  Although not incorrect, it would be more in keeping with the intent of the law to file charges under Sec. 15 instead in order to rehabilitate first time offenders of drug use, provided that there is a positive confirmatory test result as required under Sec. 15. The minimum penalty under the last paragraph of Sec. 11 for the possession of residue is imprisonment of twelve years and one day, while the penalty under Sec. 15 for first time offenders of drug use is a minimum of six months rehabilitation in a government center. To file charges under Sec. 11 on the basis of residue alone would frustrate the objective of the law to rehabilitate drug users and provide them with an opportunity to recover for a second chance at life.

 In the case at bench, the presence of dangerous drugs was only in the form of residue on the drug paraphernalia, and the accused were found

positive for use of dangerous drugs.  Granting that the arrest was legal, the evidence obtained admissible, and the chain of custody intact, the law enforcers should have filed charges under Sec. 15, R.A. No. 9165 or for use of dangerous drugs and, if there was no residue at all, they should have been charged under Sec. 14[73] (Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings). Sec. 14 provides that the maximum penalty under Sec. 12 [74] (Possession of Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs) shall be imposed on any person who shall possess any equipment, instrument, apparatus and other paraphernalia for dangerous drugs. Under Sec. 12, the maximum penalty is imprisonment of four years and a fine of P50,000.00.  In fact, under the same section, the possession of such equipment, apparatus or other paraphernalia is prima facie evidence that the possessor has used a dangerous drug and shall be presumed to have violated Sec. 15.

 In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court thus calls on law enforcers and prosecutors in dangerous drugs cases to exercise proper discretion in filing charges when the presence of dangerous drugs is only and solely in the form of residue and the confirmatory test required under Sec. 15 is positive for use of dangerous drugs. In such cases, to afford the accused a chance to be rehabilitated, the filing of charges for or involving possession of dangerous drugs should only be done when another separate quantity of dangerous drugs, other than mere residue, is found in the possession of the accused as provided for in Sec. 15.

           WHEREFORE, the August 7, 2009 Decision of the Court of Appeals in CA-G.R. HC-NO. 03269 is REVERSED and SET ASIDE and another judgment enteredACQUITTING the accused and ordering their immediate release from detention, unless they are confined for any other lawful cause.

  Let a copy of this decision be furnished the Director of the Bureau of Corrections, Muntinlupa City, for immediate implementation. The Director

of the Bureau of Corrections is directed to report to this Court within five days from receipt of this decision the action he has taken.   Copies shall also be furnished the Director-General, Philippine National Police, and the Director-General, Philippine Drugs Enforcement Agency, for their information and guidance.

 The Regional Trial Court, Branch 41, Dagupan City, is directed to turn over the seized items to the Dangerous Drugs Board for destruction in

accordance with law. 

          SO ORDERED. 

   

Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION

G.R. No. 89139 August 2, 1990

ROMEO POSADAS y ZAMORA, petitioner, vs.THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

Rudy G. Agravate for petitioner.

GANCAYCO, J.:

The validity of a warrantless search on the person of petitioner is put into issue in this case.

On October 16, 1986 at about 10:00 o'clock in the morning Pat. Ursicio Ungab and Pat. Umbra Umpar, both members of the Integrated National Police (INP) of the Davao Metrodiscom assigned with the Intelligence Task Force, were conducting a surveillance along Magallanes Street, Davao City. While they were within the premises of the Rizal Memorial Colleges they spotted petitioner carrying a "buri" bag and they noticed him to be acting suspiciously.

They approached the petitioner and identified themselves as members of the INP. Petitioner attempted to flee but his attempt to get away was thwarted by the two notwithstanding his resistance.

They then checked the "buri" bag of the petitioner where they found one (1) caliber .38 Smith & Wesson revolver with Serial No. 770196 1 two (2) rounds of live ammunition for a .38 caliber gun 2 a smoke (tear gas) grenade, 3 and two (2) live ammunitions for a .22 caliber gun. 4 They brought the petitioner to the police station for further investigation. In the course of the same, the petitioner was asked to show the necessary license or authority to possess firearms and ammunitions found in his possession but he failed to do so. He was then taken to the Davao Metrodiscom office and the prohibited articles recovered from him were indorsed to M/Sgt. Didoy the officer then on duty. He was prosecuted for illegal possession of firearms and ammunitions in the Regional Trial Court of Davao City wherein after a plea of not guilty and trial on the merits a decision was rendered on October 8, 1987 finding petitioner guilty of the offense charged as follows:

WHEREFORE, in view of all the foregoing, this Court , finds the accused guilty beyond reasonable doubt of the offense charged.

It appearing that the accuse d was below eighteen (18) years old at the time of the commission of the offense (Art. 68, par. 2), he is hereby sentenced to an indeterminate penalty ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor to TWELVE (12) Years, FIVE (5) months and Eleven (11) days of Reclusion Temporal, and to pay the costs.

The firearm, ammunitions and smoke grenade are forfeited in favor of the government and the Branch Clerk of Court is hereby directed to turn over said items to the Chief, Davao Metrodiscom, Davao City. 5

Not satisfied therewith the petitioner interposed an appeal to the Court of Appeals wherein in due course a decision was rendered on February 23, 1989 affirming in toto the appealed decision with costs against the petitioner. 6

Hence, the herein petition for review, the main thrust of which is that there being no lawful arrest or search and seizure, the items which were confiscated from the possession of the petitioner are inadmissible in evidence against him.

The Solicitor General, in justifying the warrantless search of the buri bag then carried by the petitioner, argues that under Section 12, Rule 136 of the Rules of Court a person lawfully arrested may be searched for dangerous weapons or anything used as proof of a commission of an offense without a search warrant. It is further alleged that the arrest without a warrant of the petitioner was lawful under the circumstances.

Section 5, Rule 113 of the 1985 Rules on Criminal Procedure provides as follows:

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

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

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

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

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. (6a, 17a)

From the foregoing provision of law it is clear that an arrest without a warrant may be effected by a peace officer or private person, among others, when in his presence the person to be arrested has committed, is actually committing, or is attempting to commit an offense; or when an offense has in fact just been committed, and he has personal knowledge of the facts indicating that the person arrested has committed it.

The Solicitor General argues that when the two policemen approached the petitioner, he was actually committing or had just committed the offense of illegal possession of firearms and ammunitions in the presence of the police officers and consequently the search and

seizure of the contraband was incidental to the lawful arrest in accordance with Section 12, Rule 126 of the 1985 Rules on Criminal Procedure. We disagree.

At the time the peace officers in this case identified themselves and apprehended the petitioner as he attempted to flee they did not know that he had committed, or was actually committing the offense of illegal possession of firearms and ammunitions. They just suspected that he was hiding something in the buri bag. They did now know what its contents were. The said circumstances did not justify an arrest without a warrant.

However, there are many instances where a warrant and seizure can be effected without necessarily being preceded by an arrest, foremost of which is the "stop and search" without a search warrant at military or police checkpoints, the constitutionality or validity of which has been upheld by this Court in Valmonte vs. de Villa, 7 as follows:

Petitioner Valmonte's general allegation to the effect that he had been stopped and searched without a search warrant by the military manning the checkpoints, without more, i.e., without stating the details of the incidents which amount to a violation of his light against unlawful search and seizure, is not sufficient to enable the Court to determine whether there was a violation of Valmonte's right against unlawful search and seizure. Not all searches and seizures are prohibited. Those which are reasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case.

Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds, or simply looks into a vehicle or flashes a light therein, these do not constitute unreasonable search.

The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be considered as a security measure to enable the NCRDC to pursue its mission of establishing effective territorial defense and maintaining peace and order for the benefit of the public. Checkpoints may also be regarded as measures to thwart plots to destabilize the government in the interest of public security. In this connection, the Court may take judicial notice of the shift to urban centers and their suburbs of the insurgency movement, so clearly reflected in the increased killings in cities of police and military men by NPA "sparrow units," not to mention the abundance of unlicensed firearms and the alarming rise in lawlessness and violence in such urban centers, not all of which are reported in media, most likely brought about by deteriorating economic conditions — which all sum up to what one can rightly consider, at the very least, as abnormal times. Between the inherent right of the state to protect its existence and promote public welfare and an individual's right against a warrantless search which is however reasonably conducted, the former should prevail.

True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform in the same manner that all governmental power is susceptible of abuse. But, at the cost of occasional inconvenience, discomfort and even irritation to the citizen, the checkpoints during these abnormal times, when conducted within reasonable limits, are part of the price we pay for an orderly society and a peaceful community. (Emphasis supplied).

Thus, as between a warrantless search and seizure conducted at military or police checkpoints and the search thereat in the case at bar, there is no question that, indeed, the latter is more reasonable considering that unlike in the former, it was effected on the basis of a probable cause. The probable cause is that when the petitioner acted suspiciously and attempted to flee with the buri bag there was a probable cause that he was concealing something illegal in the bag and it was the right and duty of the police officers to inspect the same.

It is too much indeed to require the police officers to search the bag in the possession of the petitioner only after they shall have obtained a search warrant for the purpose. Such an exercise may prove to be useless, futile and much too late.

In People vs. CFI of Rizal, 8 this Court held as follows:

. . . In the ordinary cases where warrant is indispensably necessary, the mechanics prescribed by the Constitution and reiterated in the Rules of Court must be followed and satisfied. But We need not argue that there are exceptions. Thus in the extraordinary events where warrant is not necessary to effect a valid search or seizure, or when the latter cannot be performed except without warrant, what constitutes a reasonable or unreasonable search or seizure becomes purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched and the character of the articles procured.

The Court reproduces with approval the following disquisition of the Solicitor General:

The assailed search and seizure may still be justified as akin to a "stop and frisk" situation whose object is either to determine the identity of a suspicious individual or to maintain the status quo momentarily while the police officer seeks to obtain more information. This is illustrated in the case of Terry vs. Ohio, 392 U.S. 1 (1968). In this case, two men repeatedly walked past a store window and returned to a spot where they apparently conferred with a third man. This aroused the suspicion of a police officer. To the experienced officer, the behaviour of the men indicated that they were sizing up the store for an armed robbery. When the police officer approached the men and asked them for their names, they mumbled a reply. Whereupon, the officer grabbed one of them, spun him around and frisked him. Finding a concealed weapon in one, he did the same to the other two and found another weapon. In the prosecution for the offense of carrying a concealed weapon, the defense of illegal search and seizure was put up. The United States Supreme Court held that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for the purpose of investigating possible criminal behaviour even though there is no probable cause to make an arrest." In such a situation, it is reasonable for an officer rather than simply to shrug his shoulder and allow a crime to occur, to stop a suspicious individual briefly in order to determine his identity or maintain the status quo while obtaining more information. . . .

Clearly, the search in the case at bar can be sustained under the exceptions heretofore discussed, and hence, the constitutional guarantee against unreasonable searches and seizures has not been violated. 9

WHEREFORE, the petition is DENIED with costs against petitioner.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION

G.R. No. 87059 June 22, 1992

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ROGELIO MENGOTE y TEJAS, accused-appellant.

CRUZ, J.:

Accused-appellant Rogelio Mengote was convicted of illegal possession of firearms on the strength mainly of the stolen pistol found on his person at the moment of his warrantless arrest. In this appeal, he pleads that the weapon was not admissible as evidence against him because it had been illegally seized and was therefore the fruit of the poisonous tree. The Government disagrees. It insists that the revolver was validly received in evidence by the trial judge because its seizure was incidental to an arrest that was doubtless lawful even if admittedly without warrant.

The incident occurred shortly before noon of August 8, 1987, after the Western Police District received a telephone call from an informer that there were three suspicious-looking persons at the corner of Juan Luna and North Bay Boulevard in Tondo, Manila. A surveillance team of plainclothesmen was forthwith dispatched to the place. As later narrated at the trial by Patrolmen Rolando Mercado and Alberto Juan, 1 they there saw two men "looking from side to side," one of whom was holding his abdomen. They approached these persons and identified themselves as policemen, whereupon the two tried to run away but were unable to escape because the other lawmen had surrounded them. The suspects were then searched. One of them, who turned out to be the accused-appellant, was found with a .38 caliber Smith and Wesson revolver with six live bullets in the chamber. His companion, later identified as Nicanor Morellos, had a fan knife secreted in his front right pants pocket. The weapons were taken from them. Mengote and Morellos were then turned over to police headquarters for investigation by the Intelligence Division.

On August 11, 1987, the following information was filed against the accused-appellant before the Regional Trial Court of Manila:

The undersigned accuses ROGELIO MENGOTE y TEJAS of a violation of Presidential Decree No. 1866, committed as follows:

That on or about August 8, 1987, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and knowingly have in his possession and under his custody and control a firearm, to wit:

one (1) cal. 38 "S & W" bearingSerial No. 8720-T

without first having secured the necessary license or permit therefor from the proper authorities.

Besides the police officers, one other witness presented by the prosecution was Rigoberto Danganan, who identified the subject weapon as among the articles stolen from him during the robbery in his house in Malabon on June 13, 1987. He pointed to Mengote as one of the robbers. He had duly reported the robbery to the police, indicating the articles stolen from him, including the revolver. 2 For his part, Mengote made no effort to prove that he owned the firearm or that he was licensed to possess it and claimed instead that the weapon had been "Planted" on him at the time of his arrest. 3

The gun, together with the live bullets and its holster, were offered as Exhibits A, B, and C and admitted over the objection of the defense. As previously stated, the weapon was the principal evidence that led to Mengote's conviction for violation of P.D. 1866. He was sentenced to reclusionperpetua. 4

It is submitted in the Appellant's Brief that the revolver should not have been admitted in evidence because of its illegal seizure. no warrant therefor having been previously obtained. Neither could it have been seized as an incident of a lawful arrest because the arrest of Mengote was itself unlawful, having been also effected without a warrant. The defense also contends that the testimony regarding the alleged robbery in Danganan's house was irrelevant and should also have been disregarded by the trial court.

The following are the pertinent provision of the Bill of Rights:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

Sec. 3 (1). The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

There is no question that evidence obtained as a result of an illegal search or seizure is inadmissible in any proceeding for any purpose. That is the absolute prohibition of Article III, Section 3(2), of the Constitution. This is the celebrated exclusionary rule based on the justification given by Judge Learned Hand that "only in case the prosecution, which itself controls the seizing officials, knows that it cannot profit by their wrong will the wrong be repressed." The Solicitor General, while conceding the rule, maintains that it is not applicable in the case at bar. His reason is that the arrest and search of Mengote and the seizure of the revolver from him were lawful under Rule 113, Section 5, of the Rules of Court reading as follows:

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

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

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

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

In cases failing under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7.

We have carefully examined the wording of this Rule and cannot see how we can agree with the prosecution.

Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee from a penal institution when he was arrested. We therefore confine ourselves to determining the lawfulness of his arrest under either Par. (a) or Par. (b) of this section.

Par. (a) requires that the person be arrested (1) after he has committed or while he is actually committing or is at least attempting to commit an offense, (2) in the presence of the arresting officer.

These requirements have not been established in the case at bar. At the time of the arrest in question, the accused-appellant was merely "looking from side to side" and "holding his abdomen," according to the arresting officers themselves. There was apparently no offense that had just been committed or was being actually committed or at least being attempted by Mengote in their presence.

The Solicitor General submits that the actual existence of an offense was not necessary as long as Mengote's acts "created a reasonable suspicion on the part of the arresting officers and induced in them the belief that an offense had been committed and that the accused-appellant had committed it." The question is, What offense? What offense could possibly have been suggested by a person "looking from side to side" and "holding his abdomen" and in a place not exactly forsaken?

These are certainly not sinister acts. And the setting of the arrest made them less so, if at all. It might have been different if Mengote bad been apprehended at an ungodly hour and in a place where he had no reason to be, like a darkened alley at 3 o'clock in the morning. But he was arrested at 11:30 in the morning and in a crowded street shortly after alighting from a passenger jeep with I his companion. He was not skulking in the shadows but walking in the clear light of day. There was nothing clandestine about his being on that street at that busy hour in the blaze of the noonday sun.

On the other hand, there could have been a number of reasons, all of them innocent, why his eyes were darting from side to side and be was holding his abdomen. If they excited suspicion in the minds of the arresting officers, as the prosecution suggests, it has nevertheless not been shown what their suspicion was all about. In fact, the policemen themselves testified that they were dispatched to that place only because of the telephone call from the informer that there were "suspicious-looking" persons in that vicinity who were about to commit a robbery at North Bay Boulevard. The caller did not explain why he thought the men looked suspicious nor did he elaborate on the impending crime.

In the recent case of People v. Malmstedt, 5 the Court sustained the warrantless arrest of the accused because there was a bulge in his waist that excited the suspicion of the arresting officer and, upon inspection, turned out to be a pouch containing hashish. In People v. Claudio, 6 the accused boarded a bus and placed the buri bag she was carrying behind the seat of the arresting officer while she herself sat in the seat before him. His suspicion aroused, be surreptitiously examined the bag, which he found to contain marijuana. He then and there made the warrantless arrest and seizure that we subsequently upheld on the ground that probable cause had been sufficiently established.

The case before us is different because there was nothing to support the arresting officers' suspicion other than Mengote's darting eyes and his hand on his abdomen. By no stretch of the imagination could it have been inferred from these acts that an offense had just been committed, or was actually being committed, or was at least being attempted in their presence.

This case is similar to People v. Aminnudin, 7 where the Court held that the warrantless arrest of the accused was unconstitutional. This was effected while be was coming down a vessel, to all appearances no less innocent than the other disembarking passengers. He had not committed nor was be actually committing or attempting to commit an offense in the presence of the arresting officers. He was not even acting suspiciously. In short, there was no probable cause that, as the prosecution incorrectly suggested, dispensed with the constitutional requirement of a warrant.

Par. (b) is no less applicable because its no less stringent requirements have also not been satisfied. The prosecution has not shown that at the time of Mengote's arrest an offense had in fact just been committed and that the arresting officers had personal knowledge of facts indicating that Mengote had committed it. All they had was hearsay information from the telephone caller, and about a crime that had yet to be committed.

The truth is that they did not know then what offense, if at all, had been committed and neither were they aware of the participation therein of the accused-appellant. It was only later, after Danganan had appeared at the Police headquarters, that they learned of the robbery in his house and of Mengote's supposed involvement therein. 8 As for the illegal possession of the firearm found on Mengote's person, the policemen discovered this only after he had been searched and the investigation conducted later revealed that he was not its owners nor was he licensed to possess it.

Before these events, the Peace officers had no knowledge even of Mengote' identity, let alone the fact (or suspicion) that he was unlawfully carrying a firearm or that he was involved in the robbery of Danganan's house.

In the landmark case of People v. Burgos, 9 this Court declared:

Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personal knowledge of the fact. The offense must also be committed in his presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859). (Emphasis supplied)

xxx xxx xxx

In arrests without a warrant under Section 6(b), however, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. That a crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator. (Emphasis supplied)

This doctrine was affirmed in Alih v. Castro, 10 thus:

If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection with a crime about to be committed, being committed, or just committed, what was that crime? There is no allegation in the record of such a falsification. Parenthetically, it may be observed that under the Revised Rule 113, Section 5(b), the officer making the arrest must have personal knowledge of the ground therefor as stressed in the recent case of People v. Burgos. (Emphasis supplied)

It would be a sad day, indeed, if any person could be summarily arrested and searched just because he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a peace officer could clamp handcuffs on any person with a shifty look on suspicion that he may have committed a criminal act or is actually committing or attempting it. This simply cannot be done in a free society. This is not a police state where order is exalted over liberty or, worse, personal malice on the part of the arresting officer may be justified in the name of security.

There is no need to discuss the other issues raised by the accused-appellant as the ruling we here make is sufficient to sustain his exoneration. Without the evidence of the firearm taken from him at the time of his illegal arrest, the prosecution has lost its most important exhibit and must therefore fail. The testimonial evidence against Mengote (which is based on the said firearm) is not sufficient to prove his guilt beyond reasonable doubt of the crime imputed to him.

We commend Atty. Violeta Calvo-Drilon for her able and spirited defense of the accused-appellant not only in the brief but also in the reply brief, which she did not have to file but did so just the same to stress the constitutional rights of her client. The fact that she was acting only as a counsel de oficio with no expectation of material reward makes her representation even more commendable.

The Court feels that if the peace officers had been more mindful of the provisions of the Bill of Rights, the prosecution of the accused-appellant might have succeeded. As it happened, they allowed their over-zealousness to get the better of them, resulting in their disregard of the requirements of a valid search and seizure that rendered inadmissible the vital evidence they had invalidly seized.

This should be a lesson to other peace officers. Their impulsiveness may be the very cause of the acquittal of persons who deserve to be convicted, escaping the clutches of the law because, ironically enough, it has not been observed by those who are supposed to enforce it.

WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The accused-appellant is ACQUITTED and ordered released immediately unless he is validly detained for other offenses. No costs.

SO ORDERED.THIRD DIVISION[G.R. No. 113447. October 9, 1997]

ALAIN MANALILI y DIZON, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.D E C I S I O NPANGANIBAN, J.:

When dealing with a rapidly unfolding and potentially criminal situation in the city streets where unarguably there is no time to secure an arrest or a search warrant, policemen should employ limited, flexible responses -- like “stop-and-frisk” -- which are graduated in relation to the amount of information they possess, the lawmen being ever vigilant to respect and not to violate or to treat cavalierly the citizen’s constitutional rights against unreasonable arrest, search and seizure.

The Case

This rule is reiterated as we resolve this petition for review on certiorari under Rule 45 of the Rules of Court, seeking the reversal of the Decision of the Court of Appeals dated April 19, 1993 and its Resolution dated January 20, 1994 in CA G.R. CR No. 07266, entitled “People of the Philippines vs. Alain Manalili y Dizon.”

In an Information dated April 11, 1988,[1] Petitioner Alain Manalili y Dizon was charged by Assistant Caloocan City Fiscal E. Juan R. Bautista with violation of Section 8, Article II of Republic Act No. 6425, allegedly committed as follows:[2]

“That on or about the 11th day of April 1988 in Caloocan City, MM, Philippines and within the jurisdiction of this Honorable Court, the above-named accused without any authority of law, did then and there wilfully, unlawfully and feloniously have in his custody, possession and control crushed marijuana residue, which is a prohibited drug and knowing the same to be such.

Contrary to Law.”

Upon his arraignment on April 21, 1988, appellant pleaded “not guilty” to the charge.[3] With the agreement of the public prosecutor, appellant was released after filing a P10,000.00 bail bond.[4] After trial in due course, the Regional Trial Court of Caloocan City, Branch 124, acting as a Special Criminal Court, rendered on May 19, 1989 a decision[5] convicting appellant of illegal possession of marijuana residue. The dispositive portion of the decision reads:[6]

“WHEREFORE, in view of all the foregoing, this Court finds the accused ALAIN MANALILI Y DIZON guilty beyond reasonable doubt of violation of Section 8, Article II, of Republic Act No. 6425, as amended (Illegal Possession of Marijuana residue), and hereby snetences (sic) said accused to suffer imprisonment of SIX (6) YEARS and ONE (1) DAY; and to pay a fine of P6,000.00; and to pay the costs.

xxx xxx xxx.”

Appellant remained on provisional liberty.[7] Atty. Benjamin Razon, counsel for the defense, filed a Notice of Appeal[8] dated May 31, 1989. On April 19, 1993, Respondent Court[9] promulgated its assailed Decision, denying the appeal and affirming the trial court:[10]

“ACCORDINGLY, the decision appealed from dated May 19, 1989 is hereby AFFIRMED in all respects. Costs against appellant.”

Respondent Court[11] denied reconsideration via its assailed Resolution dated January 20, 1994, disposing:

“ACCORDINGLY, accused-appellant’s motion for reconsideration is, as is hereby DENIED.”

The FactsVersion of the Prosecution

The facts, as found by the trial court, are as follows:[12]

“At about 2:10 o’clock in the afternoon of April 11, 1988, policemen from the Anti-Narcotics Unit of the Kalookan City Police Station were conducting a surveillance along A. Mabini street, Kalookan City, in front of the Kalookan City Cemetery. The policemen were Pat. Romeo Espiritu and Pat. Anger Lumabas and a driver named Arnold Enriquez was driving a Tamaraw vehicle which was the official car of the Police Station of Kalookan City. The surveillance was being made because of information that drug addicts were roaming the area in front of the Kalookan City Cemetery.

Upon reaching the Kalookan City Cemetery, the policemen alighted from their vehicle. They then chanced upon a male person in front of the cemetery who appeared high on drugs. The male person was observed to have reddish eyes and to be walking in a swaying manner. When this male person tried to avoid the policemen, the latter approached him and introduced themselves as police officers. The policemen then asked the male person what he was holding in his hands. The male person tried to resist. Pat. Romeo Espiritu asked the male person if he could see what said male person had in his hands. The latter showed the wallet and allowed Pat. Romeo Espiritu to examine the same. Pat. Espiritu took the wallet and examined it. He found suspected crushed marijuana residue inside. He kept the wallet and its marijuana contents.

The male person was then brought to the Anti-Narcotics Unit of the Kalookan City Police Headquarters and was turned over to Cpl. Wilfredo Tamondong for investigation. Pat. Espiritu also turned over to Cpl. Tamondong the confiscated wallet and its suspected marijuana contents. The man turned out to be the accused ALAIN MANALILI y DIZON.

Upon receipt of the confiscated suspected marijuana residue from Pat. Espiritu, Cpl. Tamondong wrapped the same with a white sheet of paper on which he wrote ‘Evidence ‘A’ 4/11/88 Alain Manalili’. The white sheet of paper was marked as Exhibit ‘E-3’. The residue was originally wrapped in a smaller sheet of folded paper. (Exhibit ‘E-4’).

Cpl. Tamondong next prepared a referral slip addressed to the NBI Forensic Chemistry Section requesting a chemical analysis of the subject marijuana residue (Exhibit ‘D’). Cpl. Tamondong thereafter prepared a Joint Affidavit of the apprehending policemen (Exhibit ‘A’). Pat. Angel Lumabas handcarried the referral slip (Exhibit ‘D’) to the National Bureau of Investigation (NBI), including the subject marijuana residue for chemical analysis. The signature of Pat. Lumabas appears on the left bottom corner of Exhibit ‘D’.

The Forensic Chemistry Section of the NBI received the aforesaid referral slip and the subject marijuana residue at 7:40 o’clock in the evening of April 11, 1988 as shown on the stamped portion of Exhibit ‘D’.

It was NBI Aida Pascual who conducted the microscopic and chemical examinations of the specimen which she identified. (Exhibit ‘E’)[13] Mrs. Pascual referred to the subject specimen as ‘crushed marijuana leaves’ in her Certification dated April 11, 1988 (Exhibit ‘F’).[14] These crushed marijuana leaves gave positive results for marijuana, according to the Certificate.

Mrs. Pascual also conducted a chromatographic examination of the specimen. In this examination, she also found that the ‘crushed marijuana leaves’ gave positive results for marijuana. She then prepared a Final Report of her examinations (Exhibit ‘G’).

After conducting the examinations, Ms. Pascual placed the specimen in a white letter-envelope and sealed it. (Exhibit ‘E’). She then wrote identification notes on this letter-envelope. (Exhibit ‘E-1’).

Pat. Lumabas carried the Certification marked as Exhibit ‘F’ from the NBI Forensic Chemistry Section to Cpl. Tamondong. Upon receipt thereof, Cpl. Tamondong prepared a referral slip addressed to the City Fiscal of Kalookan City. (Exhibit ‘C’)”

On rebuttal, Pat. Espiritu testified that appellant was not riding a tricycle but was walking in front of the cemetery when he was apprehended.[15]

Version of the Defense

The trial court summarized the testimonies of the defense witnesses as follows:[16]

“At about 2:00 o’clock in the afternoon of April 11, 1988, the accused ALAIN MANALILI was aboard a tricycle at A. Mabini street near the Kalookan City Cemetery on the way to his boarding house. Three policemen ordered the driver of the tricycle to stop because the tricycle driver and his lone passenger were under the influence of marijuana. The policemen brought the accused and the tricycle driver inside the Ford Fiera which the policemen were riding in. The policemen then bodily searched the accused and the tricycle driver. At this point, the accused asked the policemen why he was being searched and the policemen replied that he (accused) was carrying marijuana. However, nothing was found on the persons of the accused and the driver. The policemen allowed the tricycle driver to go while they brought the accused to the police headquarters at Kalookan City where they said they would again search the accused.

On the way to the police headquarters, the accused saw a neighbor and signaled the latter to follow him. The neighbor thus followed the accused to the Kalookan City Police Headquarters. Upon arrival thereat, the accused was asked to remove his pants in the presence of said neighbor and another companion. The policemen turned over the pants of the accused over a piece of bond paper trying to look for marijuana. However, nothing was found, except for some dirt and dust. This prompted the companion of the neighbor of the accused to tell the policemen to release the accused. The accused was led to a cell. The policemen later told the accused that they found marijuana inside the pockets of his pants.

At about 5:00 o’clock in the afternoon on the same day, the accused was brought outside the cell and was led to the Ford Fiera. The accused was told by the policemen to call his parents in order to ‘settle’ the case. The policemen who led the accused to the Ford Fiera were Pat. Lumabas, Pat. Espiritu and Cpl. Tamondong. Pat. Lumabas was the policeman who told the accused to call his parents. The accused did not call his parents and he told the policemen that his parents did not have any telephone.

At about 5:30 o’clock in the afternoon of the same day, the accused was brought in the office of an inquest Fiscal. There, the accused told the Fiscal that no marijuana was found on his person but the Fiscal told the accused not to say anything. The accused was then brought back to the Kalookan City Jail.

Loreto Medenilla, the tricycle driver who was allegedly with the accused when he and the accused were stopped by policemen and then bodily searched on April 11, 1988, testified. He said that the policemen found nothing either on his person or on the person of the accused when both were searched on April 11, 1988.

Roberto Abes, a neighbor of the accused, testified that he followed the accused at the Kalookan City Police Headquarters on April 11, 1988. He said that the police searched the accused who was made to take off his pants at the police headquarters but no marijuana was found on the body of the accused.”

Appellant, who was recalled to the stand as sur-rebuttal witness, presented several pictures showing that tricycles were allowed to ply in front of the Caloocan Cemetery.[17]

The Rulings of the Trial and the Appellate Courts

The trial court convicted petitioner of illegal possession of marijuana residue largely on the strength of the arresting officers’ testimony. Patrolmen Espiritu and Lumabas were “neutral and disinterested” witnesses, testifying only on what transpired during the performance of their duties. Substantially, they asserted that the appellant was found to be in possession of a substance which was later identified as crushed marijuana residue.

The trial court disbelieved appellant’s defense that this charge was merely “trumped up,” because the appellant neither took any legal action against the allegedly erring policemen nor moved for a reinvestigation before the city fiscal of Kalookan City.

On appeal, Respondent Court found no proof that the decision of the trial court was based on speculations, surmises or conjectures. On the alleged “serious” discrepancies in the testimonies of the arresting officers, the appellate court ruled that the said inconsistencies were insubstantial to impair the essential veracity of the narration. It further found petitioner’s contention -- that he could not be convicted of illegal possession of marijuana residue -- to be without merit, because the forensic chemist reported that what she examined were marijuana leaves.

Issues

Petitioner assigns the following errors on the part of Respondent Court:

“I - The Court of Appeals erred in upholding the findings of fact of the trial court.

II - The Court of Appeals erred in upholding the conviction of (the) accused (and) in ruling that the guilt of the accused had been proved (beyond) reasonable doubt.

III - The Court of Appeals erred in not ruling that the inconsistencies in the testimonies of the prosecution witnesses were material and substantial and not minor.

IV - The Court of Appeals erred in not appreciating the evidence that the accused was framed for the purpose of extorting money.

V - The Court of Appeals erred in not acquitting the accused when the evidence presented is consistent with both innocence and guilt.

VI - The Court of Appeals erred in admitting the evidence of the prosecution which are inadmissible in evidence.”

Restated more concisely, petitioner questions (1) the admissibility of the evidence against him, (2) the credibility of prosecution witnesses and the rejection by the trial and the appellate courts of the defense of extortion, and (3) the sufficiency of the prosecution evidence to sustain his conviction.

The Court’s Ruling

The petition has no merit.

First Issue: Admissibility of the Evidence Seized During a Stop-and-Frisk

Petitioner protests the admission of the marijuana leaves found in his possession, contending that they were products of an illegal search. The Solicitor General, in his Comment, dated July 5, 1994, which was adopted as memorandum for respondent, counters that the inadmissibility of the marijuana leaves was waived because petitioner never raised this issue in the proceedings below nor did he object to their admissibility in evidence. He adds that, even assuming arguendo that there was no waiver, the search was legal because it was incidental to a warrantless arrest under Section 5 (a), Rule 113 of the Rules of Court.

We disagree with petitioner and hold that the search was valid, being akin to a stop-and-frisk. In the landmark case of Terry vs. Ohio,[18] a stop-and-frisk was defined as the vernacular designation of the right of a police officer to stop a citizen on the street, interrogate him, and pat him for weapon(s):

“x x x (W)here a police officer observes an unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identified himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapon seized may properly be introduced in evidence against the person from whom they were taken.”[19]

In allowing such a search, the United States Supreme Court held that the interest of effective crime prevention and detection allows a police officer to approach a person, in appropriate circumstances and manner, for purposes of investigating possible criminal behavior even though there is insufficient probable cause to make an actual arrest. This was the legitimate investigative function which Officer McFadden discharged in that case, when he approached petitioner and his companion whom he observed to have hovered alternately about a street corner for an extended period of time, while not waiting for anyone; paused to stare in the same store window roughly 24 times; and conferred with a third person. It would have been sloppy police work for an officer of 30 years’ experience to have failed to investigate this behavior further.

In admitting in evidence two guns seized during the stop-and-frisk, the US Supreme Court held that what justified the limited search was the more immediate interest of the police officer in taking steps to assure himself that the person with whom he was dealing was not armed with a weapon that could unexpectedly and fatally be used against him.

It did not, however, abandon the rule that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure, excused only by exigent circumstances.

In Philippine jurisprudence, the general rule is that a search and seizure must be validated by a previously secured judicial warrant; otherwise, such search and seizure is unconstitutional and subject to challenge.[20] Section 2, Article III of the 1987 Constitution, gives this guarantee:

“SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.”

Any evidence obtained in violation of the mentioned provision is legally inadmissible in evidence as a “fruit of the poisonous tree,” falling under the exclusionary rule:

“SEC. 3. x x x

(2) Any evidence obtained in violation of x x x the preceding section shall be inadmissible for any purpose in any proceeding.”

This right, however, is not absolute.[21] The recent case of People vs. Lacerna enumerated five recognized exceptions to the rule against warrantless search and seizure, viz.: “(1) search incidental to a lawful arrest, (2) search of moving vehicles, (3) seizure in plain view, (4) customs search, and (5) waiver by the accused themselves of their right against unreasonable search and seizure.”[22] In People vs. Encinada,[23] the Court further explained that “[i]n these cases, the search and seizure may be made only with probable cause as the essential requirement. Although the term eludes exact definition, probable cause for a search is, at best, defined as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged; or the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the item(s), article(s) or object(s) sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched.”

Stop-and-frisk has already been adopted as another exception to the general rule against a search without a warrant. In Posadas vs. Court of Appeals ,[24] the Court held that there are many instances where a search and seizure can be effected without necessarily being preceded by an arrest, one of which is stop-and-frisk. In said case, members of the Integrated National Police of Davao stopped petitioner, who was carrying a buri bag and acting suspiciously. They found inside petitioner’s bag one .38-cal. revolver with two rounds of live ammunition, two live ammunitions for a .22-cal. gun and a tear gas grenade. In upholding the legality of the search, the Court said that to require the police officers to search the bag only after they had obtained a search warrant might prove to be useless, futile and much too late under the circumstances. In such a situation, it was reasonable for a police officer to stop a suspicious individual briefly in order to determine his identity or to maintain the status quo while obtaining more information, rather than to simply shrug his shoulders and allow a crime to occur.

In the case at hand, Patrolman Espiritu and his companions observed during their surveillance that appellant had red eyes and was wobbling like a drunk along the Caloocan City Cemetery, which according to police information was a popular hangout of drug addicts. From his experience as a member of the Anti-Narcotics Unit of the Caloocan City Police, such suspicious behavior was characteristic of drug addicts who were “high.” The policemen therefore had sufficient reason to stop petitioner to investigate if he was actually high on drugs. During such investigation, they found marijuana in petitioner’s possession:[25]

“FISCAL RALAR:

Q And why were you conducting surveillance in front of the Caloocan Cemetery, Sangandaan, Caloocan City?

A Because there were some informations that some drug dependents were roaming around at A. Mabini Street in front of the Caloocan Cemetery, Caloocan City.

xxx xxx xxx

Q While you were conducting your surveillance, together with Pat. Angel Lumabas and one Arnold Enriquez, what happened, if any?

A We chanced upon one male person there in front of the Caloocan Cemetery then when we called his attention, he tried to avoid us, then prompting us to approach him and introduce ourselves as police officers in a polite manner.

xxx xxx xxx

Q Could you describe to us the appearance of that person when you chanced upon him?

A That person seems like he is high on drug.

Q How were you able to say Mr. Witness that that person that you chanced upon was high on drug?

A Because his eyes were red and he was walking on a swaying manner.

Q What was he doing in particular when you chanced upon him?

A He was roaming around, sir.

Q You said that he avoided you, what did you do when he avoided you?

A We approached him and introduced ourselves as police officers in a polite manner, sir.

Q How did you introduce yourselves?

A In a polite manner, sir.

Q What did you say when you introduced yourselves?

A We asked him what he was holding in his hands, sir.

Q And what was the reaction of the person when you asked him what he was holding in his hands?

A He tried to resist, sir.

Q When he tried to resist, what did you do?

A I requested him if I can see what was he was(sic) holding in his hands.

Q What was the answer of the person upon your request?

A He allowed me to examine that something in his hands, sir.

xxx xxx xxx

Q What was he holding?

A He was holding his wallet and when we opened it, there was a marijuana (sic) crushed residue.”

Furthermore, we concur with the Solicitor General’s contention that petitioner effectively waived the inadmissibility of any evidence illegally obtained when he failed to raise this issue or to object thereto during the trial. A valid waiver of a right, more particularly of the constitutional right against unreasonable search, requires the concurrence of the following requirements: (1) the right to be waived existed; (2) the person waiving it had knowledge, actual or constructive, thereof; and (3) he or she had an actual intention to relinquish the right.[26] Otherwise, the Courts will indulge every reasonable presumption against waiver of fundamental safeguards and will not deduce acquiescence from the failure to exercise this elementary right. In the present case, however, petitioner is deemed to have waived such right for his failure to raise its violation before the trial court. In petitions under Rule 45, as distinguished from an ordinary appeal of criminal cases where the whole case is opened for review, the appeal is generally limited to the errors assigned by petitioner. Issues not raised below cannot be pleaded for the first time on appeal.[27]

Second Issue: Assessment of Evidence

Petitioner also contends that the two arresting officers’ testimony contained “polluted, irreconcilable and unexplained” contradictions which did not support petitioner’s conviction.

We disagree. Time and again, this Court has ruled that the trial court’s assessment of the credibility of witnesses, particularly when affirmed by the Court of Appeals as in this case, is accorded great weight and respect, since it had the opportunity to observe their demeanor and deportment as they testified before it. Unless substantial facts and circumstances have been overlooked or misappreciated by the trial court which, if considered, would materially affect the result of the case, we will not countenance a departure from this rule.[28]

We concur with Respondent Court’s ruling:

“(e)ven assuming as contended by appellant that there had been some inconsistencies in the prosecution witnesses’ testimonies, We do not find them substantial enough to impair the essential veracity of their narration. In People vs. Avila, it was held that –‘As long as the witnesses concur on the material points, slight differences in their remembrance of the details, do not reflect on the essential veracity of their statements.’”

However, we find that, aside from the presumption of regularity in the performance of duty, the bestowal of full credence on Pat. Espiritu’s testimony is justified by tangible evidence on record. Despite Pat. Lumabas’ contradictory testimony, that of Espiritu is supported by the Joint Affidavit[29] signed by both arresting policemen. The question of whether the marijuana was found inside petitioner’s wallet or inside a plastic bag is immaterial, considering that petitioner did not deny possession of said substance. Failure to present the wallet in evidence did not negate that marijuana was found in petitioner’s possession. This shows that such contradiction is minor, and does not destroy Espiritu’s credibility.[30]

Third Issue: Sufficiency of Evidence

The elements of illegal possession of marijuana are: (a) the accused is in possession of an item or object which is identified to be a prohibited drug; (b) such possession is not authorized by law; and (c) the accused freely and consciously possessed the said drug.[31]

The substance found in petitioner’s possession was identified by NBI Forensic Chemist Aida Pascual to be crushed marijuana leaves. Petitioner’s lack of authority to possess these leaves was established. His awareness thereof was undeniable, considering that petitioner was high on drugs when stopped by the policemen and that he resisted when asked to show and identify the thing he was holding. Such behavior clearly shows that petitioner knew that he was holding marijuana and that it was prohibited by law.

Furthermore, like the trial and the appellate courts, we have not been given sufficient grounds to believe the extortion angle in this case. Petitioner did not file any administrative or criminal case against the arresting officers or present any evidence, other than his bare claim. His argument that he feared for his life was lame and unbelievable, considering that he was released on bail and continued to be on bail as early as April 26, 1988.[32] Since then, he could have made the charge in relative safety, as he was no longer in the custody of the police. His defense of frame-up, like alibi, is viewed by this Court with disfavor, because it is easy to concoct and fabricate.[33]

The Proper Penalty

The trial and the appellate courts overlooked the Indeterminate Sentence Law (Act No. 4103, as amended) by sentencing petitioner to a straight penalty of six years and one day of imprisonment, aside from the imposed fine of six thousand pesos. This Act requires the imposition of an indeterminate penalty:

“SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. (As amended by Act No. 4225.)

“SEC. 2. This Act shall not apply to persons convicted of offenses punished with death penalty or life-imprisonment; to those convicted of treason; to those convicted of misprision of treason, rebellion, sedition or espionage; to those convicted of piracy; to those who are habitual delinquents; to those who shall have escaped from confinement or evaded sentence; to those who having been granted conditional pardon by the Chief Executive shall have violated the terms thereof; to those whose maximum term of imprisonment does not exceed one year, not to those already sentenced by final judgment at the time of approval of this Act, except as provided in Section 5 hereof.” (Underscoring supplied)

The Dangerous Drugs Law, R.A. 6425, as amended by B.P. 179, imposes the following penalty for illegal possession of marijuana:

“Sec. 8. x x x x

The penalty of imprisonment ranging from six years and one day to twelve years and a fine ranging from six thousand to twelve thousand pesos shall be imposed upon any person who, unless authorized by law, shall possess or use Indian hemp.”

Prescinding from the foregoing, the Court holds that the proper penalty is an indeterminate sentence of imprisonment ranging from six years and one day to twelve years.[34]

WHEREFORE, the assailed Decision and Resolution are hereby AFFIRMED with MODIFICATION. Petitioner is sentenced to suffer IMPRISONMENT of SIX (6) YEARS, as minimum, to TWELVE (12) YEARS, as maximum, and to PAY a FINE of SIX THOUSAND PESOS. Costs against petitioner.

SO ORDERED.Republic of the PhilippinesSUPREME COURTManila

EN BANCG.R. No. L-95630 June 18, 1992

SPOUSES LEOPOLDO and MA. LUISA VEROY, petitioners, vs.THE HON. WILLIAM L. LAYAGUE, Presiding Judge, Branch XIV, Regional Trial Court at Davao City; and BRIG. GEN. PANTALEON DUMLAO, Commanding General, PC-Criminal Investigation Service, respondents.

PARAS, J.:

This was originally a petition for certiorari, mandamus and prohibition under Rule 65 of the Rules of Court: certiorari, to review the Order of the respondent Judge dated October 2, 1990 denying herein petitioner's Motion for Hospital Confinement; mandamus, to compel respondent Judge to resolve petitioners' long pending motion for bail; and prohibition, to enjoin further proceedings on the ground that the legal basis therefore is unconstitutional for being violative of the due process and equal protection clauses of the Constitution.

The facts of this case are as follows:

Petitioners are husband and wife who owned and formerly resided at No. 13 Isidro St., Skyline Village. Catalunan Grande, Davao City. When petitioner Leopoldo Veroy was promoted to the position of Assistant Administrator of the Social Security System sometime in June, 1988, he and his family transferred to 130 K-8th St., East Kamias, Quezon City, where they are presently residing. The care and upkeep of their residence in Davao City was left to two (2) houseboys, Jimmy Favia and Eric Burgos, who had their assigned quarters at a portion of the premises. The Veroys would occasionally send money to Edna Soguilon for the salary of the said houseboys and other expenses for the upkeep of their house. While the Veroys had the keys to the interior of the house, only the key to the kitchen, where the circuit breakers were located, was entrusted to Edna Soguilon to give her access in case of an emergency. Hence, since 1988, the key to the master's bedroom as well as the keys to the children's rooms were retained by herein Petitioners so that neither Edna Soguilon nor the caretakers could enter the house.

On April 12, 1990, Capt. Reynaldo Obrero of the Talomo Patrol Station, PC/INP, acting upon a directive issued by Metrodiscom Commander Col. Franco Calida, raided the house of herein petitioners in Davao City on information that the said residence was being used as a safehouse of rebel soldiers. They were able to enter the yard with the help of the caretakers but did not enter the house since the owner was not present and they did not have a search warrant. Petitioner Ma. Luisa was contacted by telephone in her Quezon City residence by Capt. Obrero to ask permission to search the house in Davao City as it was reportedly being used as a hideout and recruitment center of rebel soldiers. Petitioner Ma. Luisa Veroy responded that she is flying to Davao City to witness the search but relented if the search would not be conducted in the presence of Major Ernesto Macasaet, an officer of the PC/INP, Davao City and a long time family friend of the Veroys. The authority given by Ma. Luisa Veroy was relayed by Capt. Obrero to Major Macasaet who answered that Ma. Luisa Veroy has called him twice by telephone on the matter and that the permission was given on the condition that the search be conducted in his presence.

The following day, Capt. Obrero and Major Macasaet met at the house of herein petitioners in Skyline Village to conduct the search pursuant to the authority granted by petitioner Ma. Luisa Veroy. The caretakers facilitated their entry into the yard, and using the key entrusted to Edna Soguilon, they were able to gain entrance into the kitchen. However, a locksmith by the name of George Badiang had to be employed to open the padlock of the door leading to the children's room. Capt. Obrero and Major Macasaet then entered the children's room and conducted the search. Capt. Obrero recovered a .45 cal. handgun with a magazine containing seven (7) live bullets in a black clutch bag inside an unlocked drawer. Three (3) half-full jute sacks containing printed materials of RAM-SFP (samples of which were attached as Annexes "H" and "H-1" of the petition) (Rollo, pp. 49-55) were also found in the children's room. A search of the children's recreation and study area revealed a big travelling bag containing assorted polo shirts, men's brief, two (2) pieces polo barong and short sleeve striped gray polo. sweat shirt, two (2) pairs men's socks, a towel made in U.S.A., one blanket, a small black bag, Gandhi brand, containing a book entitled "Islamic Revolution Future Path of the Nation", a road map of the Philippines, a telescope, a plastic bag containing assorted medicines and religious pamphlets was found in the master's bedroom. Sgt. Leo Justalero was instructed by Capt. Obrero to make an inventory and receipt of the articles seized, in the house (Annex "F" of the Petition, Rollo, p. 48). Said receipt was signed by Eric Burgos, one of the caretakers, and George Badiang, the locksmith, as witnesses. Sgt. Justalero turned over the articles to Sgt. Rodolfo Urbano at the police station.

The case was referred for preliminary investigation to Quezon City Assistant Prosecutor Rodolfo Ponferrada who was designated Acting Provincial Prosecutor for Davao City by the Department of Justice through Department Order No. 88 dated May 16, 1990. In a resolution dated August 6, 1990, Fiscal Ponferrada recommended the filing of an information against herein petitioners for Violation of Presidential Decree No. 1866 (Illegal Possession of Firearms and Ammunitions in Furtherance of Rebellion) (Annex "L" of the Petition, Rollo, p. 71). Hence, on August 8, 1990. an Information for the said offense was filed by the Office of the City Prosecutor of Davao City before the Regional Trial Court, 11th Judicial Region, Davao City, docketed as Criminal Case No. 20595-90 and entitled "People of the Philippines v. Atty. Leopoldo Veroy and Mrs. Maria Luisa Veroy" (Annex "K" of the Petition, Rollo, p. 70). No bail was recommended by the prosecution.

The aforementioned resolution dated August 6, 1990 of Fiscal Ponferrada was received by the petitioners on August 13, 1990. On the same day, the latter filed a Motion for Bail before herein respondent Judge Layague which was denied on August 17, 1990 for being premature since at that time, petitioners had not yet been arrested. Despite the fact that the warrants for their arrest have not yet been served on them, herein petitioners voluntarily surrendered themselves to Brig. Gen. Pantaleon Dumlao, PC-CIS Chief, since it was the CIS that initiated the complaint. However, the latter refused to receive them on the ground that his office has not yet received copies of their warrants of arrest.

In the meantime, on August 15, 1990, herein petitioners were admitted to the St. Luke's Hospital for various ailments brought about or aggravated by the stress and anxiety caused by the filing of the criminal complaint. On August 17, 1990, Brig. Gen. Dumlao granted their request that they be allowed to be confined at the hospital and placed under guard thereat.

In an Indorsement dated August 20, 1990, the CIS through Capt. Benjamin de los Santos, made its return to the trial court informing the latter of the voluntary surrender of herein petitioners and the fact that they were under hospital confinement. Herein Petitioner reiterated their Motion for Bail. In an Order dated August 24, 1990 (Annex "M" of the Petition, Rollo, p. 74), the hearing for the Motion for Ball was set for August 31, 1990 to enable the prosecution to present evidence it opposition to said motion. The prosecution filed its written opposition (Annex "N" of the Petition, Rollo, p. 75) on August 28, 1990, arguing that the evidence of petitioners' guilt was strong and thereafter presented its evidence.

On September 21, 1990, respondent Judge required the CIS to produce the bodies of herein petitioners on October 1, 1990 for arraignment (Annex "O" of the Petition, Rollo, p. 76). Upon their arraignment, herein Petitioners entered a plea of not guilty and filed an "Urgent Motion for Hospital Confinement" (Annex "OO" of the Petition Rollo, p. 77) which was denied by the court in its Order dated October 2, 1990 (Annex "P" of the Petition, Rollo, p. 80). It likewise ordered their commitment at the Davao City Rehabilitation Center, Ma-a, Davao City pending trial on the merits. Herein petitioners argued orally a motion for reconsideration which was opposed by the prosecution. At the conclusion thereof, the court a quo issued a second order annex "Q" of the Petition, Rollo, p. 83) denying then motion for reconsideration and as to the alternative prayer to reopen the motion for hospital confinement, set the continuance thereof to October 17, 1990. It was further ordered that the petitioners shall remain under the custody of the PC-CIS pending resolution of the case.

Meanwhile, petitioners were returned to the St. Luke's Hospital where their physical condition remained erratic. On or about October 18, 1990, herein petitioners were informed that Brig. Gen. Dumlao had issued a directive for their transfer from the St. Luke's Hospital to Camp Crame on the basis of the October 2, 1990 Order (Annex "Q" of the Petition, Rollo, p. 83). Petitioners made representations that the tenor of the court order warranted maintenance of the status quo, i.e., they were to continue their hospital confinement. However, Brig, Gen. Dumlao informed them that unless otherwise restrained by the court, they would proceed with their transfer pursuant to the order of the trial court.

Hence, this petition on October 25, 1990 this Court issued a Temporary Restraining Order, effective immediately and continuing until further orders from this Court, ordering: (a) respondent Hon. William L. Layague to refrain from further proceeding with petitioners' "Motion for Hospital Confinement" in Criminal Case No. 20595-90 entitled "People of the Philippines v. Leopoldo Veroy and Ma. Luisa Veroy"; and (b) respondent Brig. Gen. Pantaleon Dumlao to refrain from transferring petitioners from the St. Luke's Hospital (Rollo, pp. 84-A to 84-C).

On November 2, 1990, respondent Judge issued an order denying petitioners' Motion for Bail (Annex "A" of the Second Supplemental Petition, Rollo, p. 133). Petitioners filed a Supplemental Petition on November 7, 1990 (Rollo, P. 105) and a Second Supplemental Petition on November 16, 1990 (Rollo, p. 120) which sought to review the order of the trial court dated November 2, 1990 denying their petition for bail.

Acting on the Supplemental Petition filed by Petitioners and taking into consideration several factors such as: a) that the possibility that they will flee or evade the processes of the court is fairly remote; b) their poor medical condition; and c) the matters in their Second Supplemental Petition especially since the prosecution's evidence refers to constructive possession of the disputed firearms in Davao City through the two (2) caretakers while petitioners lived in Manila since 1988, this Court, on November 20, 1990, granted petitioners' provisional liberty and set the bail bond at P20,000.00 each (Rollo, p. 141). Petitioners posted a cash bond in the said amount on November 23, 1990 (Rollo, pp. 143-145).

The petition was given due course on July 16, 1991 (Rollo, p. 211). Respondents adopted their Comment dated December 28, 1990 (Rollo, pp. 182-191) as their Memorandum while, petitioners filed their Memorandum on September 9, 1991 (Rollo, pp. 218-269).

As submitted by the respondents, and accepted by petitioners, the petition for mandamus to compel respondent Judge to resolve petitioners' Motion for Bail, and the petition for certiorari to review the order of respondent judge initially denying their Motion for Hospital Confinement, were rendered moot and academic by the resolutions of this Court dated November 20, 1990 and October 25, 1990, respectively. What remains to be resolved is the petition for prohibition where petitioners raised the following issues:

1. Presidential Decree No. 1866, or at least the third paragraph of Section 1 thereof, is unconstitutional for being violative of the due process and equal protection clauses of the Constitution;

2. Presidential Decree No. 1866 has been repealed by Republic Act No. 6968;

3. Assuming the validity of Presidential Decree No. 1866 the respondent judge gravely abused his discretion in admitting in evidence certain articles which were clearly inadmissible for being violative of the prohibition against unreasonable searches and seizures.

The issue of constitutionality of Presidential Decree No. 1866 has been laid to rest in the case of Misolas v. Panga, G.R. No. 83341, January 30, 1990 (181 SCRA 648), where this Court held that the declaration of unconstitutionality of the third paragraph of Section 1 of Presidential Decree No. 1866 is wanting in legal basis since it is neither a bill of attainder nor does it provide a possibility of a double jeopardy.

Likewise, petitioners' contention that Republic Act 6968 has repealed Presidential Decree No. 1866 is bereft of merit. It is a cardinal rule of statutory construction that where the words and phrases of a statute are not obscure or ambiguous. its meaning and the intention of the legislature must be determined from the language employed, and where there is no ambiguity in the words, there is no room for construction (Provincial Board of Cebu v. Presiding Judge of Cebu, CFI, Br. IV, G.R. No. 34695, March 7, 1989 [171 SCRA 1]). A perusal of the aforementioned laws would reveal that the legislature provided for two (2) distinct offenses: (1) illegal possession of firearms under Presidential Decree No. 1866; and (2) rebellion, coup d' etat, sedition and disloyalty under Republic Act 6968; evidently involving different subjects which were not clearly shown to have eliminated the others.

But petitioners contend that Section 1 of Presidential Decree No. 1866 is couched in general or vague terms. The terms "deal in", "acquire", "dispose" or "possess" are capable of various interpretations such that there is no definiteness as to whether or not the definition includes "constructive possession" or how the concept of constructive possession should be applied. Petitioners were not found in actual possession of the firearm and ammunitions. They were in Quezon City while the prohibited articles were found in Davao City. Yet they were being charged under Presidential Decree No. 1866 upon the sole circumstance that the house wherein the items were found belongs to them (Memorandum for Petitioners, Rollo, pp. 242-244).

Otherwise stated, other than their ownership of the house in Skyline Village, there was no other evidence whatsoever that herein petitioners possessed or had in their control the items seized (Ibid., pp. 248-250). Neither was it shown that they had the intention to possess the Firearms or to further rebellion (Ibid., P. 252).

In a similar case, the revolver in question was found in appellant's store and the question arouse whether he had possession or custody of it within the meaning of the law.

This Court held that:

The animus possidendi must be proved in opium cases where the prohibited drug was found on the premises of the accused and the same rule is applicable to the possession of firearms. The appellant denied all knowledge of the existence of the revolver, and the Government's principal witness stated that there were a number of employees in the store. The only testimony which tends to show that the appellant had the possession or custody of this revolver is the inference drawn from the fact that it was found in his store, but we think that this inference is overcome by the positive testimony of the appellant, when considered with the fact that there were a number of employees in the store, who, of course, could have placed the revolver in the secret place where it was found without the knowledge of the appellant. At least there is a very serious doubt whether he knew of the existence of this revolver. In such case the doubt must be resolved in favor of the appellant. (U.S. v. Jose and Tan Bo., 34 Phil. 724 [1916])

But more importantly, petitioners question the admissibility in evidence of the articles seized in violation of their constitutional right against unreasonable search and seizure.

Petitioners aver that while they concede that Capt. Obrero had permission from Ma. Luisa Veroy to break open the door of their residence, it was merely for the purpose of ascertaining thereat the presence of the alleged "rebel" soldiers. The permission did not include any authority to conduct a room to room search once inside the house. The items taken were, therefore, products of an illegal search, violative of their constitutional rights As such, they are inadmissible in evidence against them.

The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures (Article III, Section 2 of the 1987 Constitution). However, the rule that searches and seizures must be supported by a valid warrant is not an absolute one. Among the recognized exceptions thereto are: (1) a search incidental to an arrest; (2) a search of a moving vehicle; and (3) seizure of evidence in plain view (People v. Lo Ho Wing, G.R. No. 88017, January 21, 1991 [193 SCRA 122]).

None of these exceptions pertains to the case at bar. The reason for searching the house of herein petitioners is that it was reportedly being used as a hideout and recruitment center for rebel soldiers. While Capt. Obrero was able to enter the compound, he did not enter the house because he did not have a search warrant and the owners were not present. This shows that he himself recognized the need for a search warrant, hence, he did not persist in entering the house but rather contacted the Veroys to seek permission to enter the same. Permission was indeed granted by Ma. Luisa Veroy to enter the house but only to ascertain the presence of rebel soldiers. Under the circumstances it is undeniable that the police officers had ample time to procure a search warrant but did not.

In a number of cases decided by this Court, (Guazon v. De Villa, supra.; People v. Aminnudin, G.R. No. L-74869, July 6, 1988 [163 SCRA 402]; Alih v. Castro, G.R. No. L-69401, June 23, 1987 [151 SCRA 279]), warrantless searches were declared illegal because the officials conducting the search had every opportunity to secure a search Warrant. The objects seized, being products of illegal searches, were inadmissible in evidence in the criminal actions subsequently instituted against the accused-appellants (People v. Cendana, G.R. No. 84715, October 17, 1990 [190 SCRA 538]).

Undeniably, the offense of illegal possession of firearms is malum prohibitum but it does not follow that the subject thereof is necessarily illegal per se. Motive is immaterial in mala prohibita but the subjects of this kind of offense may not be summarily seized simply because they are prohibited. A search warrant is still necessary. Hence, the rule having been violated and no exception being applicable, the articles seized were confiscated illegally and are therefore protected by the exclusionary principle. They cannot be used as evidence against the petitioners in the criminal action against them for illegal possession of firearms. (Roan v. Gonzales, 145 SCRA 689-690 [1986]). Besides, assuming that there was indeed a search warrant, still in mala prohibita, while there is no need of criminal intent, there must be knowledge that the same existed. Without the knowledge or voluntariness there is no crime.

PREMISES CONSIDERED, the petition as granted and the criminal case against the petitioners for illegal possession of firearms is DISMISSED.

SO ORDERED.

Today is Monday, January 12, 2015

search

Republic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

G.R. No. 170233 February 22, 2007

THE PEOPLE OF THE PHILIPPINES, Appellee, vs.JESUS NUEVAS y GARCIA, REYNALDO DIN y GONZAGA, and FERNANDO INOCENCIO y ABADEOS, Appellants.

D E C I S I O N

TINGA, J.:

Jesus Nuevas y Garcia (Nuevas) was charged1 before the Regional Trial Court (RTC) of Olongapo City, Branch 75, with illegal possession of marijuana in violation of Section 8, Article II of Republic Act No. 64252 as amended.

Reynaldo Din y Gonzaga (Din) and Fernando Inocencio y Abadeos (Inocencio) were likewise charged3 with the same crime, before the same court.

Upon arraignment, Nuevas, Din and Inocencio pleaded not guilty to the charges.4 As the evidence in the cases was common and the prosecution would utilize the same witnesses, the cases were consolidated. After a joint trial on the merits, the RTC rendered a Decision5 dated 4 April 2002, disposing as follows:

WHEREFORE, finding all accused in the above-entitled cases guilty beyond reasonable doubt, this Court hereby sentences them to suffer the penalty of Reclusion Perpetua and each to pay [a] fine of P500,000.00 without subsidiary imprisonment in case of insolvency and to pay the costs.

The bricks of marijuana are hereby confiscated and disposed in accordance with existing regulations.

SO ORDERED.6

To put in appropriate context the operative facts on which adjudication of this case hinges, there is need to recall the factual assertions of the witnesses for both the prosecution and the defense.

PO3 Teofilo B. Fami (Fami) testified that in the morning of 27 September 1997, he and SPO3 Cesar B. Cabling (Cabling) conducted a stationary surveillance and monitoring of illegal drug trafficking along Perimeter Street, Barangay Pag-asa, Olongapo City. They had received information that a certain male person, more or less 5’4" in height, 25 to 30 years old, with a tattoo mark on the upper right hand, and usually wearing a sando and maong pants, would make a delivery of marijuana dried leaves. While stationed thereat, they saw a male person who fit the description, carrying a plastic bag, later identified as Jesus Nuevas (Nuevas), alight from a motor vehicle. They accosted Nuevas and informed him that they are police officers. Fami asked Nuevas where he was going. Nuevas answered arrogantly but afterwards, calmed down. Nuevas and Fami conversed in the Waray dialect. Nuevas informed him that there were other stuff in the possession of a certain Vangie, an associate, and two other male persons. Later on, Nuevas voluntarily pointed to the police officers a plastic bag which, when opened, contained marijuana dried leaves and bricks wrapped in a blue cloth. Shortly, in his bid to escape charges, Nuevas disclosed where the two (2) other male persons would make the delivery of marijuana weighing more or less five (5) kilos.7

Fami and Cabling, together with Nuevas, then proceeded to Purok 12, Old Cabalan, Olongapo City, which according to Nuevas was where his two (2) companions, Din and Inocencio, could be located. From there, they saw and approached two (2) persons along the National Highway, introducing themselves as police officers. Din was carrying a light blue plastic bag. When asked, Din disclosed that the bag belonged to Nuevas. Fami then took the bag and upon inspection found inside it "marijuana packed in newspaper and wrapped therein."8 After confiscating the items, Fami and Cabling brought Nuevas, Din and Inocencio to the police office at Purok III for proper documentation.9 Fami further testified that a receipt for the property seized was issued by Cabling and that a field test was duly conducted on the confiscated items. All three accused were likewise physically examined on the basis of which corresponding medical certificates were issued. The corresponding booking sheets and arrest report were also accomplished. Fami stated that he and Cabling executed a joint affidavit in connection with the arrest of all the accused and the confiscation of the items.10

On cross-examination, Fami revealed that when the receipt of evidence seized was prepared, all three (3) accused were not represented by counsel. He likewise disclosed that he was the one who escorted all the accused during their physical examination. He also escorted all three to the Fiscal’s office where the latter were informed of the charges against them.11

Cabling corroborated Fami’s testimony. He, however, testified that after he and Fami had introduced themselves as police officers, Din and Inocencio voluntarily handed to Fami the marijuana dried leaves.12

On cross-examination, Cabling testified that the arrest of Nuevas was the result of a tip from Fami’s informant, conceding though that the name of Nuevas was not included in the list of persons under surveillance. Fami then relayed the tip to Cabling.13 Cabling restated that Nuevas had voluntarily submitted the plastic bag he was holding and that after Nuevas had been informed of the violation of law attributed to him, he admitted his willingness to cooperate and point to his other cohorts.14 When Fami and Cabling proceeded to the identified location of Nuevas’s cohorts, they chanced upon Din and Inocencio along the road. Din was holding a bag while Inocencio was looking into its contents.15 Cabling averred that Din voluntarily handed the plastic bag he was holding to the police officers.16

For his defense, Nuevas testified that in the morning of 27 September 1997, he was walking along Perimeter Street, on his way home from the Barangay Hall, when Fami called him. Nuevas approached Fami, who was then in front of his house, and asked why Fami had called him. Fami poked his gun at Nuevas and asked him to go inside the room where Fami handcuffed Nuevas’s hands, got Nuevas’s wallet, took out P1,500.00 and put it in his (Fami’s) wallet. Fami then confronted Nuevas with shabu use but the latter denied the charge. Before leaving the house with Nuevas, Fami brought out a plastic bag and told Nuevas to carry it. Subsequently, they boarded a red owner—type jeep and proceeded to Station B where Nuevas was put in jail. Nuevas further stated that he did not know Din or Inocencio.17

Din, on the other hand, stated that at about 10 o’clock in the morning of 27 September 1997, while his ‘compare’ Inocencio was visiting, two (2) men entered his house looking for a woman. The two (2) introduced themselves as police officers. Then, Din and Inocencio were immediately handcuffed. They were not informed of the reason for their arrest and were told that the reason will be explained to them in court. Next, they were brought to the

Cabalan precinct where the investigator asked for their names, and subsequently to Station B where they were ordered to stand up and be photographed with Nuevas, who Din first met in jail. Inside the room where they had their fingerprints taken, he saw marijuana placed on top of the table.18

Inocencio testified that he went to his ‘compadre’ Din’s house in the morning of 27 September 1997 to sell his fighting cocks as he needed money to redeem his driver’s license. While there, he and Din were arrested by two persons, one of whom pointed a gun at them while the other searched the house for a lady named Vangie. Afterwards, he and Din were brought to the Cabalan Police Precinct and then to Station B where he first came to know Nuevas. He denied that a plastic bag containing marijuana was recovered from them and claimed that he only saw such evidence on the day he gave his testimony. He also stated that when a photograph was taken of the three of them, he and Din were ordered to point to a "wrapped thing." When the photograph was taken, they were not assisted by counsel. He also does not recall having signed a receipt of property seized. Afterwards, they were brought to a detention cell. And when they asked the police what they did wrong, the police replied that they will just explain it in court. 19

All three were found guilty as charged and the judgment of conviction was elevated to the Court for automatic review. However, on 14 July 2003, Nuevas filed a manifestation and motion to withdraw appeal.20 The Court granted Nuevas’s withdrawal of appeal and considered the case closed and terminated as to him, in a Resolution21 dated 25 August 2003.

In a Resolution22 dated 22 September 2004 of the Court in G.R. Nos. 153641-42,23 the cases were transferred to the Court of Appeals pursuant to the Court’s ruling in People v. Efren Mateo.24

Before the Court of Appeals, Din and Inocencio (appellants) argued that the trial court erred: (1) in finding them guilty of the crime charged on the basis of the testimonies of the arresting officers; and (2) n not finding that their constitutional rights have been violated.25

The Court of Appeals in a Decision26 dated 27 May 2005, in CA-G.R. CR No. 00341, affirmed the decision of the trial court. The dispositive portion of the decision reads:

WHEREFORE, all the foregoing considered, the instant appeal is DENIED. The Decision of the Regional Trial Court of Olongapo City, Branch 75, in Criminal Case No. 459-97, is AFFIRMED.

SO ORDERED.27

The Court of Appeals restated the rule that when the issue involves the credibility of a witness, the trial court’s assessment is entitled to great weight, even finality, unless it is shown that it was tainted with arbitrariness or there was an oversight of some fact or circumstance of weight or influence. The appellate court found Fami and Cabling’s version of how appellants were apprehended to be categorical and clear. Din, at the time of his apprehension, was seen holding a plastic bag containing marijuana leaves. On the other hand, Inocencio’s possession of the marijuana leaves was established by the fact that he was seen in the act of looking into the plastic bag carried by Din.28

With respect to appellants’ claim that their constitutional rights have been violated, the appellate court stated that the search in the instant case is exempted from the requirement of a judicial warrant as appellants themselves waived their right against unreasonable searches and seizures. According to the appellate court, both Cabling and Fami testified that Din voluntarily surrendered the bag. Appellants never presented evidence to rebut the same. Thus, in the instant case, the exclusionary rule does not apply.29

Din and Inocencio are now before the Court submitting for resolution the same matters argued before the Court of Appeals. Through their Manifestation (In Lieu of Supplementary Brief)30 dated 22 March 2006, appellants stated that all the arguments necessary to support their acquittal have already been discussed in the brief they had submitted before the appellate court; thus, the filing of a supplemental brief would be a mere reiteration of the arguments discussed in said brief.31 The Office of the Solicitor General manifested that it is no longer filing a supplemental brief.32

The conviction or acquittal of appellants rests on the validity of the warrantless searches and seizure made by the police officers and the admissibility of the evidence obtained by virture thereof.

In holding that the warrantless searches and seizure are valid, the trial court ruled as follows:

While the confiscation of the bricks of marijuana from the accused Jesus Nuevas was without a search warrant, it was not bereft of a probable cause. The police team received informations [sic] from an asset that on that day, a male person whom he sufficiently described will deliver marijuana at the vicinity of Perimeter and Bonifacio S[t]., Pag-asa, Olongapo City, a known drop point of illegal drugs. They went to the said area upon that information. Their waiting was fruitful because not long afterwards they saw the accused Jesus Nuevas alighting from a tricycle carrying a bag and after confronting him, he voluntarily gave the bag containing bricks of dried marijuana leaves. With respect to the confiscation of 2 ½ kilos of marijuana and the apprehension of accused Reynaldo Din and Fernando Inocencio, it was a result of a continued operation by the team which this time was led by accused Nuevas to get some concession from the team for his own earlier apprehension. As the apprehension of Nuevas was upon a probable cause, in the same vein was the apprehension of Reynaldo Din and Fernando Inocencio and the recovery from them [of] 2½ kilos of dried marijuana leaves. The propriety of this conclusion is necessity [sic] because of the impossibility of getting first a warrant in so short a time with such cumbersome requirements before one can be issued. Before getting a warrant, the culprits shall have already gone into hiding. These situations are not distant to the case of People v[.] Jean Balingan (G.R. No. 105834, 13 Feb. 1995) where we learned that expediency and practicality are some of the justification[s] in the warrantless arrest.33 [Emphasis supplied]

Appellants maintain that there was no basis for their questioning and the subsequent inspection of the plastic bags of Nuevas and Din, as they were not doing anything illegal at the time.34

Our Constitution states that a search and seizure must be carried through or with a judicial warrant; otherwise, such search and seizure becomes "unreasonable" and any evidence obtained therefrom is inadmissible for any purpose in any proceeding.35 The constitutional proscription, however, is not absolute but admits of exceptions, namely:

1. Warrantless search incidental to a lawful arrest. (Sec. 12, Rule 126 of the Rules of Court and prevailing jurisprudence);

2. Search of evidence in "plain view." The elements are: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who have the right to be where they are; (c) the evidence must be immediately apparent; (d) "plain view" justified mere seizure of evidence without further search;

3. Search of a moving vehicle. Highly regulated by the government, the vehicle’s inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;

4. Consented warrantless search;

5. Customs search;

6. Stop and Frisk; and

7. Exigent and emergency circumstances.36

In the instances where a warrant is not necessary to effect a valid search or seizure, or when the latter cannot be performed except without a warrant, what constitutes a reasonable or unreasonable search or seizure is purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched and the character of the articles procured.37

The courts below anchor appellants’ conviction on the ground that the searches and seizure conducted in the instant case based on a tip from an informant fall under one of the exceptions as Nuevas, Din and Inocencio all allegedly voluntarily surrendered the plastic bags containing marijuana to the police officers.38

We differ.

First, the Court holds that the searches and seizures conducted do not fall under the first exception, warrantless searches incidental to lawful arrests.

A search incidental to a lawful arrest is sanctioned by the Rules of Court.39 Recent jurisprudence holds that the arrest must precede the search; the process cannot be reversed as in this case where the search preceded the arrest. Nevertheless, a search substantially contemporaneous with an arrest can precede the arrest if the police have probable cause to make the arrest at the outset of the search. 40

In this case, Nuevas, Din and Inocencio were not committing a crime in the presence of the police officers. Moreover, police officers Fami and Cabling did not have personal knowledge of the facts indicating that the persons to be arrested had committed an offense. The searches conducted on the plastic bag then cannot be said to be merely incidental to a lawful arrest. Reliable information alone is not sufficient to justify a warrantless arrest under Section 5(a), Rule 113. The rule requires, in addition, that the accused perform some overt act that would indicate that he "has committed, is actually committing, or is attempting to commit an offense."41

Secondly, neither could the searches be justified under the plain view doctrine.

An object is in plain view if it is plainly exposed to sight. Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be seized without a warrant. However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized. In other words, if the package is such that an experienced observer could infer from its appearance that it contains the prohibited article, then the article is deemed in plain view. It must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband or otherwise subject to seizure.42

Records show that the dried marijuana leaves were inside the plastic bags that Nuevas and Din were carrying and were not readily apparent or transparent to the police officers. In Nuevas’s case, the dried marijuana leaves found inside the plastic bag were wrapped inside a blue cloth.43 In Din’s case, the marijuana found upon inspection of the plastic bag was "packed in newspaper and wrapped therein."44 It cannot be therefore said the items were in plain view which could have justified mere seizure of the articles without further search.45

On the other hand, the Court finds that the search conducted in Nuevas’s case was made with his consent. In Din’s case, there was none.

Indeed, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. However, it must be seen that the consent to the search was voluntary in order to validate an otherwise illegal detention and search, i.e., the consent was unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion. The consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence. The question whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. Relevant to this determination 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 he was in a public or secluded location; (3) whether he 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 defendant's belief that no incriminating evidence will be found; (7) the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the possibly vulnerable subjective state of the person consenting. It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given.46

In Nuevas’s case, the Court is convinced that he indeed voluntarily surrendered the incriminating bag to the police officers. Fami testified in this wise:

FISCAL BELTRAN:

Q Now, when you saw this accused carrying this Exhibit "D,"47 for your part, what did you do?

A I just talked to him and asked him where he was going and according to him, he acted arrogantly, sir.

Q This arrogant action of the accused Jesus Nuevas, when you confronted him did he resist?

A How did he show his elements, [sic] he said, "So what if you are policeman[?]"

Q And being confronted with that arrogance, what did you do next?

A Later on he kept calm by saying [sic] in Waray dialect, sir.

x x x x

Q What, exactly, did he tell you in Waray dialect?

A "Sir Famir[sic], don’t charge me, sir[.] I am planning to go home to Leyte. I was just earning enough money for my fare, sir."

x x x x

Q So when the accused speak [sic] to you in Waray, what else did you do if you did anything?

A I pretended that I agree in his [sic] offer but I also asked him where are the other staffs[sic] sir. 48

x x x x

Q With respect to the bag that you confiscated from him, what did you do?

A He voluntarily pointed it to me and I checked it, the bag, for verification, sir.49

Cabling likewise testified as follows:

Q When Fami got this from the accused, he opened this thing that he got?

A The subject voluntarily submitted the same, sir.

Q Upon the order of Fami to open it?

A Nobody ordered it, sir.50

There is reason to believe that Nuevas indeed willingly submitted the plastic bag with the incriminating contents to the police officers. It can be seen that in his desperate attempt to exculpate himself from any criminal liability, Nuevas cooperated with the police, gave them the plastic bag and even revealed his ‘associates,’ offering himself as an informant. His actuations were consistent with the lamentable human inclination to find excuses, blame others and save oneself even at the cost of others’ lives. Thus, the Court would have affirmed Nuevas’s conviction had he not withdrawn his appeal.

However, with respect to the search conducted in the case of Din, the Court finds that no such consent had actually been given. Fami testified as follows:

FISCAL BELTRAN

Q Now, what did you do when you saw Din with that Exhibit "C," the plastic bag?

A Din said that "Oo, Sir, that is owned by Nuevas" [sic] and I took the said plastic bag.

Q When you took this plastic bag from Din….

Was the accused Jesus Nueva [sic] present when Din told you that?

A Yes, sir. Nuevas alighted also [from] the vehicle with Cabling.

Q And what was the reaction of Nuevas when Din told you that the bag belongs to him?

A I did not react, sir.

Q After getting that plastic bag from Reynaldo Din, what did you do with it?

A I inspected the bag and I found out that there is still marijuana packed in newspaper and wrapped therein, sir.51 [Emphasis supplied.]

Cabling, however, gave a different testimony, viz.:

FISCAL BELTRAN

Q And upon siting [sic] the two subject persons you have just indicated in your earlier testimony, what did you do?

A We approached them and introduced ourselves as police officers, and pinpointed by Nuevas as the ones who kept suspected prohibited drugs, sir.

Q After you approached these two people, what happened?

A These two people, upon introducing ourselves, [sic] voluntarily surrendered to Fami those marijuana dry leaves, sir.52

The police officers gave inconsistent, dissimilar testimonies regarding the manner by which they got hold of the bag. This already raises serious doubts on the voluntariness of Din’s submission of the plastic bag. Jurisprudence requires that in case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it is fundamental that to constitute a waiver, it must first appear that (1) the right exists; (2) the person involved had knowledge, either actual or constructive, of the existence of such right; and (3) the said person had an actual intention to relinquish the right.53

The prosecution failed to clearly show that Din intentionally surrendered his right against unreasonable searches. While it may not be contrary to human nature for one to be jolted into surrendering something incriminating to authorities, Fami’s and Cabling’s testimonies do not show that Din was in such a state of mind or condition. Fami and Cabling did not testify on Din’s composure—whether he felt surprised or frightened at the time—which fact we find necessary to provide basis for the surrender of the bag. There was no mention of any permission made by the police officers to get or search the bag or of any consent given by Din for the officers to search it. It is worthy to note that in cases where the Court upheld the validity of consented search, the police authorities expressly asked, in no uncertain terms, for the consent of the accused to be searched. And the consent of the accused was established by clear and positive proof.

Neither can Din’s silence at the time be construed as an implied acquiescence to the warrantless search. In People v. Burgos,54 the Court aptly ruled:

x x x As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer’s authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law.55

Without the dried marijuana leaves as evidence, Din’s conviction cannot be sustained based on the remaining evidence. The Court has repeatedly declared that the conviction of the accused must rest not on the weakness of the defense but on the strength of the prosecution.1awphi1.net56 As such, Din deserves an acquittal.

In this case, an acquittal is warranted despite the prosecution’s insistence that the appellants have effectively waived any defect in their arrest by entering their plea and by their active participation in the trial of the case. Be it stressed that the legality of an arrest affects only the jurisdiction of the court over the person of the accused. Inspite of any alleged waiver, the dried marijuana leaves cannot be admitted in evidence against the appellants, Din more specifically, as they were seized during a warrantless search which was not lawful. A waiver of an illegal warrantless arrest does not also mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest.57

Turning to Inocencio’s case, the Court likewise finds that he was wrongly convicted of the crime charged. Inocencio’s supposed possession of the dried marijuana leaves was sought to be shown through his act of looking into the plastic bag that Din was carrying.58 Taking a look at an object, more so in this case peeping into a bag while held by another, is not the same as taking possession thereof. To behold is not to hold. Indeed, the act attributed to Inocencio is insufficient to establish illegal possession of the drugs or even conspiracy to illegally possess the same. The prosecution failed to show by convincing proof that Inocencio knew of the contents of the bag and that he conspired with Din to possess the illegal items. Inocencio was firm and unshakeable in his testimony that he had no part in any delivery of marijuana dried leaves.

Finally, the law enforcers should be reminded of the Court’s dated but nevertheless current exhortation:

x x x In the final analysis, we in the administration of justice would have no right to expect ordinary people to be law-abiding if we do not insist on the full protection of their rights. Some lawmen, prosecutors and judges may still tend to gloss over an illegal search and seizure as long as the law enforcers show the alleged evidence of the crime regardless of the methods by which they were obtained. This kind of attitude condones law-breaking in the name of law enforcement. Ironically, it only fosters the more rapid breakdown of our system of justice, and the eventual denigration of society. While this Court appreciates and encourages the efforts of law enforcers to uphold the law and to preserve the peace and security of society, we nevertheless admonish them to act with deliberate care and within the parameters set by the Constitution and the law. Truly, the end never justifies the means.59

WHEREFORE, the Decision dated 4 April 2002 of the Regional Trial Court of Olongapo City, Branch 75, in Criminal Case No. 458-97 and No. 459-97 is reversed and modified. Appellants Reynaldo Din y Gonzaga and Fernando Inocencio y Abadeos are hereby ACQUITTED. The Director of the Bureau of Prisons is ordered to cause the immediate release of appellants from confinement, unless they are being held for some other lawful cause, and to report to this Court compliance herewith within five (5) days from receipt hereof.

SO ORDERED.

Republic of the PhilippinesSupreme CourtManila FIRST DIVISION PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, - versus - NELIDA DEQUINA Y DIMAPANAN, JOSELITO JUNDOC Y JAPITANA & NORA JINGABO Y CRUZ, Accused-Appellants. G.R. No. 177570 Promulgated: January 19, 2011x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x D E C I S I O N LEONARDO-DE CASTRO, J.: Accused-appellants Nelida D. Dequina (Dequina), Joselito J. Jundoc (Jundoc), and Nora C. Jingabo (Jingabo) were charged before the Regional Trial Court (RTC) of Manila, Branch 27, with Violations of Section 4, in relation to Section 21, paragraphs (e-l), (f), (m), and (o) of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended by Republic Act No. 7659. The accusatory portion of the Amended Information reads: That on or about September 29, 1999, in the City of Manila, Philippines, the said accused, conspiring and confed erating together and helping one another, not being authorized by law to sell, deliver, transport or give away to another any prohibited drug, did and there willfully, unlawfully and knowingly sell, or offer for sale, deliver or transport marijuana dried flowering tops with total weight of thirty two thousand nine hundred ninety five (32,995) grams which is a prohibited drug.[1] The case was docketed as Criminal Case No. 99-177383. Upon arraignment, all accused-appellants entered a plea of not guilty.[2] The prosecution presented four witnesses: Police Officer (PO) 3 Wilfredo Masanggue (Masanggue), Senior Police Officer (SPO) 1 Anthony Blanco (Blanco), PO3 Eduardo Pama (Pama), and Forensic Chemist George de Lara (De Lara). The RTC summarized the testimonies of the prosecution witnesses as follows: Police Officer III Wilfredo Masanggue testified that at about 6:00 a.m., of September 29, 1999, he and SPO1 Anthony Blanco were instructed by their superior, Chief Inspector Romulo Sapitula to proceed at the corner of Juan Luna and Raxabago Sts., Tondo, Manila, where, according to the report given by the informant, three persons – a male and two female[s] would be coming from Baguio City to deliver unknown quantity of marijuana. In no time, they arrived at the designated place and parked their mobile patrol car along Juan Luna Street, facing the northern direction just near the corner of Raxabago Street. At around 9:00 a.m., they noticed a taxi cab coming from Yuseco St. heading towards the direction of the pier. At a certain point along Raxabago Street, about a hundred meters away from the position of their patrol car the taxi stopped. From it emerged three passengers – a man and two women – each one of them carrying a black travelling bag. As the trio fitted the descriptions given to them by Inspector Sapitula, they intently watched and monitored their movements. About one or two minutes later, as the trio started walking towards the western portion of Raxabago St., they drove and trailed them. As the patrol car got closer behind them, [Dequina] noticed its presence. She started walking in a more hurried pace (“parang walkathon”) as if she wanted to run away (“parang patakbo”). SPO1 Blanco alighted from the car and chased [Dequina] while PO3 Masanggue, who was behind the wheels also alighted and restrained [Jundoc] and [Jingabo]. While thus trying to get away, [Dequina] dropped the bag she was carrying. As a result, the zipper of the bag gave way. Bundles of dried leaves wrapped in transparent plastic bags case into view. Suspecting the stuffs to be marijuana, they further inspected the other two bags in the possession of [Jingabo] and [Jundoc] and found out that they had the same contents. They boarded the three accused, along with their bags in their patrol car and proceeded to the hospital for physical examination before bringing them to their headquarters. While in transit, [Dequina] pleaded to them to allow her to make a call but they did not heed the request as the car was still in motion. At the western Police District Headquarters at United Nations Avenue, they turned over the three accused together with the bags to PO3 Eduardo Pama, a police investigator of the district Anti-Narcotics Unit for investigation. During the investigation, it was discovered that each of the three black travelling bags confiscated from the three accused contained eleven bricks of marijuana. In connection with the incident, he and SPO1 Blanco executed the Joint Affidavit of Apprehension dated September 30, 1999 (Exhs, “A” and submarkings). SPO1 Anthony Blanco testified that in the early morning of September 29, 1999, together with PO3 Wilfredo Masanggue, he was dispatched by their superior to the corner of Juan Luna and Raxabago Sts., Tondo, Manila, where it was reported that shipment of marijuana would take

place. They were further informed that the drug couriers were composed of a man and two women and that each of them were carrying a travelling bag. After they arrived at the designated area, they parked their vehicle along Juan Luna near Raxabago Street. Then they waited. Suddenly, they noticed the arrival of a taxicab from where three persons – a man and two women – alighted. Each of them was carrying a bag. The trio fitted the descriptions given to them. As the suspects walked away, they drove and trailed them. As they got close behind them, accused Nelida Dequina noticed the presence of the mobile car. She dropped the black bag she was carrying and the same was unzipped. The contents thereof consisting of dried marijuana leaves wrapped in transparent plastic bags came into view. They arrested the three suspects later identified as the accused herein and boarded them into their car. While on board the vehicle, [Dequina] and [Jundoc] confessed that the contents of the other two bags confiscated from them were also marijuana. At the WPD Headquarters, United Nations Avenue, Manila, the three accused were turned over to the Office of the District Anti-Narcotics Unit where they were investigated by PO3 Wilfredo Pama. It was there where the other two bags confiscated from [Jingabo] and [Jundoc] were re-opened and confirmed to contain marijuana. In the course of his cross-examination, SPO1 Blanco admitted that the three of them – Inspector Sapitula, PO3 Masanggue and himself, along with the three accused, were photographed, at what appeared to be a “sari-sari” store as their background. The same appeared in the clipping of “Tonight” September 20, 1999 issue. PO3 Eduardo Pama, an investigator from the District Anti-Narcotics Unit of the WPD was the one who investigated the case. He placed the corresponding markings on the packs of marijuana confiscated from the three accused after the same were turned over to him by SPO1 Blanco and PO3 Masanggue. He marked the bag recovered from [Dequina] “NDD” and the contents thereof “NDD-1” to “NDD-11”. He marked the bag taken from [Jundoc] “JJJ” and the contents thereof “ JJJ-1” to “JJJ-11”. Finally, he marked the bag recovered from [Jingabo] “NCJ” and the contents thereof “NCJ-1” to “NCJ-11”. In connection with his investigation, he prepared the Booking Sheet and Arrest Reports of the three accused (Exhs. “F”. “G” and “H”) as well as the Referral Letter to the City Prosecutor’s Office (Exh. “I”). Afterwards, he brought the three bags of suspected marijuana together with the letter-request to the National Bureau of Investigation [(NBI)] Chemistry Division, for the laboratory examinations. The same were received thereat on September 29, 1999 at 10:12 in the evening. The following day, September 30, 1999, at 10:38 p.m., certifications, corresponding to each and every set of items recovered from the three accused were released to PO3 Pama. George De Lara, Forensic Chemist, Forensic Chemistry Division, NBI, Manila testified that he conducted the laboratory examinations of the subject specimens based on the letter-request from DANU Police Superintendent Miguel de Mayo Laurel (Exh. “B” and submarkings). From the black bag (Exh. “K”) allegedly recovered from [Dequina], he counted a total of eleven bricks of dried leaves suspected to be marijuana which had a total weight of 10,915.0 grams. The results of the chemical, microscopic and chromatographic examinations he conducted show that the said specimens were positive for the presence of chemical found only in marijuana. With regard to the bag allegedly confiscated from [Jundoc] (Exh. “O”), witness counted eleven bricks of dried leaves believed to be marijuana. The specimens had a total weight of 11,010.0 grams. When subjected to be same type of laboratory examinations, the specimens yielded positive result for marijuana, a prohibited drug. Anent the bag (Exh. “R”) with masking tape having the mark “DDM-99-110” allegedly recovered from [Jingabo], witness also found eleven bricks of dried flowering tops suspected to be marijuana which when weighed yielded a total weight of 11,070.0 grams. The results of similar types of examinations conducted confirmed the specimens to be marijuana. He prepared separate certifications for the results of the examinations he conducted on the specimens contained in three separate bags allegedly confiscated from accused Dequina, Jundoc and Jingabo (Exhs. “C”, “D” and “E”, respectively). He also prepared NBI Forensic Chemistry Division Report No. DDM-99-108 dated October 1, 1999 (Exh. “L” and submarkings).[3] For the defense, only the accused-appellants took the witness stand. The RTC recapitulated the testimonies of the accused-appellants, thus: Accused Nelida Dequina testified that she became an orphan at a tender age. With the help of her aunt, she was able to pursue her studies. She was a consistent scholar from elementary until college. While in the third year of her Accountancy course, she encountered severe financial difficulties. She stopped schooling and worked instead. Soon, she had a relationship with a man with whom she begot a child. The relationship did not last. Not long after, she had a relationship with another man. This time she begot her second child named Samantha. In May 1999, while the Kilusang Mayo Uno (KMU) members were having a parade in Iloilo City, she met a certain Salvacion Peñaredondo, a member of the group. She calls her Sally. Sally convinced her to join the movement. Since she used to watch similar group activities while in college, she manifested her desire to join the movement by nodding her head. From then on, Sally frequently visited her at home. For a living, she was engaged in selling ready-to-wear dresses, frozen meat and relief goods which Sally supplied to her. On September 27, 1999, Sally told her that the movement had decided to send her to a mission which would determine if she was really qualified to join the group. She was advised to bring alone two friends, preferably a woman and a gay. As at time Sally saw them in her company, she chose Nora Jingabo and Joselito Jundoc to be her companions. Sally did not elaborate the real nature of such mission. She did not press to know more about the venture either. Before they parted that day, Sally instructed her to fetch her two friends and meet her (Sally) early in the morning of the following day, September 28, 1999 near the entrance of the Gaisano Mall, the largest department store in Iloilo. She dropped by the public market and told Nora and Joselito about the plan to meet Sally the following morning. As agreed upon, they met Sally at the designated place and time. Sally secretly told her that the three of them would be going to Manila for a still undisclosed mission. She was briefed that the three of them will temporarily stay in the house of her [Dequina] relative in Manila. She was further instructed that they will go to the Philippine Rabbit Terminal in Avenida where they will be met by members of their group who will also monitor their movements. Afterwards, they will proceed to Dau, Mabalacat, Pampanga where they will pick-up some bags. Thereat, somebody will meet and give them instructions. From Dau, they will return to Manila. They will alight at the first ShoeMart Department Store which they will see along the way. A waiting tricycle would bring them to a store where they could buy carton boxes for their bags. Finally, a taxicab will fetch and bring them all the way to the pier. [Dequina] received P3,000.00 from Sally for their expenses and plane tickets for the three of them from Sally. However, she noticed that instead of their true names, the tickets were in the names of other persons. Her plane ticket was in the name of Sarah Ganje. That of [Jundoc] and [Jingabo] were in the names of Rowenal Palma and Mary Grace Papa, respectively. Nervous, she thought of backing out at the last minute but Sally assured her that she had nothing to worry about. Sally culminated by saying that something will happen to her child if ever she backed out from the plan.

Because of the threat, [Dequina] went on with the plan. Enroute to the Iloilo airport, [Jundoc] and [Jingabo] expressed their anxieties about the venture but she calmed them down and assured them that she will take care of everything. From the Manila Domestic Airport, they proceeded to her aunt’s place at Pitogo St., Guadalupe, Makati City where they rested after taking their meal. At around 2:00 p.m., her aunt woke her up and told her that the two vehicles – an owner-type jepney and a passenger jepney with unfamiliar faces on board were lurking in their vicinity for quite sometime. At around 5:00 p.m., they left the place on board a taxi to the Philippine Rabbit Terminal at Avenida, Rizal. While waiting for their schedule, two men approached and handed to her bus tickets. The same men nosed out to them the vehicle where they were supposed to board. She was further reminded by the men that members of the movement will also be on board. They arrived in Dau, Mabalacat, Pampanga at about 12:30 a.m. of September 29, 1999. While they were having their snacks, a couple went near and instructed them to cross the road and take the bags from the three men whom they saw for the first time. The couple also handed over to them bus tickets. They were instructed to board vehicles bound for Pasay and alight at the first Shoemart (SM) Department Store that they will see along the way. They took the bags from the three men without even bothering to know the contents thereof. However, she noticed that the bags were very heavy. As they boarded the Pasay bound bus, the conductor took the bags from them and loaded the same in compartment section of the vehicle. With the assistance of the bus conductor, they alighted at SM North Edsa. They transferred to a waiting tricycle, as per instruction given by Sally. The tricycle dropped them at a “sari-sari” store where they bought carton boxes where they placed two of the three bags. From there, the driver lead them to a waiting taxi where they loaded all their baggages. She and Nora occupied the back seat while Joselito sat beside the driver. She instructed the driver to take them to the pier for Iloilo bound ships. As they entered the pier premises, a mobile patrol car came from nowhere and blocked their path. Two police officers emerged and ordered them to alight. Then, upon the policemen’s order, the driver opened the taxi’s trunk where the three bags were loaded. The police officers forcibly opened one of the three bags where they saw something wrapped in jute bags and plastic bags. It was learned that the contents of the bags were marijuana. They were all herded into the mobile car. While on board the mobile car, the police officers asked them if they had money. When the policemen learned that they did not have money, they were brought to a “sari-sari” store where a police officer named Sapitula was waiting. Sapitula asked them questions. At one point, Sapitula slapped her. They were made to line up and Sapitula summoned some press reporters who photographed them They were brought to the Ospital ng Maynila. While being examined, she confided to a nurse that she was manhandled by Sapitula. They were brought to the office of the District Anti-Narcotics Unit where corresponding charges were filed against them. She insisted that the incident took place near the pier and not at the corner of Raxabago and Juan Luna Sts., Tondo, Manila. Were if not for the threat that something will happen to her daughter, she could not followed (sic) the orders of Sally. The combined testimony of accused Nora Jingabo and Joselito Jundoc established the following facts. On September 27, 1999, while [Jundoc] and [Jingabo] were tending to their fish stall in Iloilo Public Market, [Dequina], their friend, came and invited them to meet her, for a still undisclosed reason, at the ground floor of the Gaisano Mall, early in the morning of the following day, September 28, 1999. As agreed upon, they met at the designated place and time. Not long thereafter, Sally joined them. They knew Sally to be [Dequina’s] supplier of RTW’s and other merchandise. For a while, [Dequina] and Sally excused themselves and proceeded to the first floor of the mall where they talked privately. Soon after Sally left, [Jingabo] and [Jundoc] asked [Dequina] what they talked about. Instead of answering, [Dequina] asked if they are willing to go with her to Manila in order to get something. While a little bit surprised, [Jingabo] and [Jundoc] readily agreed as they had never been in the city before. [Dequina] handed to them their plane tickets. They were told that the same were given by Sally. However, they noticed that the plane tickets were not in their names but in the names of other persons. When they called the attention of [Dequina] about it, the latter simply replied “Anyway that is free”. [Jingabo] noticed anxiety got the better of Nelida at that time. Nevertheless, the three of them enplaned for Manila at around 7:45 a.m. of September 28, 1999. From the Ninoy Aquino Domestic Airport, they proceeded to the house of [Dequina’s] aunt in Guadalupe, Makati City. In the afternoon, their host noticed the presence of unfamiliar vehicles. Some of these vehicles were even parked right in front of the house. Unmindful about it, they left Guadalupe at around 6:00 p.m. and proceeded to a Philippine Rabbit Bus Terminal. Thereat, two male persons approached [Dequina] and handed to her bus tickets. They were pointed to the particular vehicle where they were to board. They reached Dau, Mabalacat, Pampanga between 12:30 and 1:00 a.m. of September 29, 1999. While they were having their snacks, a couple approached [Dequina] and they had a talk. Thereafter, the couple motioned them to three male persons, each carrying a bag, at the opposite side of the road. Upon [Dequina’s] instruction, they took the bags from the three men. Then, they waited for their ride back to Manila. As they boarded the bus, the conductor loaded their bags inside the compartment. They alighted at SM EDSA at around 6:00 a.m. of September 29, 1999. They boarded a waiting tricycle. When they reached a certain store, the trike driver bought carton boxes where they loaded two of the three bags. Thereafter, the tricycle driver pointed [Dequina] to a waiting taxi where they boarded along with their baggages. As they entered the pier premises, a police officer on board a mobile patrol car ordered them to stop. They were ordered to alight and the police officers ordered the driver to open the taxi’s compartment. One of the police officers took a knife from his pocket and slashed one of the bags. Then, the policemen told them that what they had in their bags were marijuana. The police officers ordered them to board the mobile car while the bags were loaded inside the compartment of the same car. They were brought to a “sari-sari” store where a certain Chief Sapitula, whom they later knew to be the police officers’ superior, was waiting. Sapitula interrogated [Dequina] and at one point, he slapped her. Sapitula summoned press people who took their photographs. Thereafter, they were brought to the “Hospital ng Bayan” and finally, to the police precinct were they were charged accordingly.[4] The parties dispensed with the testimony of Prose M. Arreola, a representative of Air Philippines, since they were willing to stipulate on the existence of the passenger manifest, on which appeared the accused-appellants’ assumed names, as well as the accused-appellants’ plane tickets for the flight from Iloilo to Manila on September 28, 1999 at 7:00 a.m.

The RTC, in a Decision dated October 30, 2000, found the accused-appellants guilty as charged. The dispositive portion of said decision reads: WHEREFORE, premises considered, the judgment is hereby rendered finding accused NELIDA DEQUINA y DIMAPANAN, JOSELITO JUNDOC y JAPITANA and NORA JINGABO y CRUZ guilty beyond reasonable doubt of the crime of Illegal transport marijuana and sentencing each of them to suffer the penalty of reclusion perpetua. Each of them is ordered to pay a fine of P500,000.00.[5] The accused-appellants filed a Motion for Reconsideration of the foregoing decision, but the RTC denied the same in its Order dated December 27, 2000. Accused-appellants then filed a notice of appeal on January 25, 2001. Thus, the records of Criminal Case No. 99-177383 were forwarded to this Court. Pursuant to our decision in People v. Mateo,[6] however, we referred the case to the Court of Appeals,[7] where it was docketed as CA-G.R. CR.-H.C. No. 01431. Accused-appellants made the following assignment of errors in their brief: I THE COURT A QUO ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY BEYOND REASONABLE DOUBT FOR ILLEGAL TRANSPORT OF MARIJUANA. II THE COURT A QUO GRAVELY ERRED IN ADMITTING IN EVIDENCE THE SEIZED ITEMS FROM THE ACCUSED-APPELLANTS DESPITE THE FACT THAT THEY WERE SEIZED IN VIOLATION OF THEIR CONSTITUTIONAL RIGHTS AGAINST ILLEGAL SEARCH AND SEIZURE.[8] In its Decision[9] dated August 16, 2006, the appellate court affirmed accused-appellants’ conviction. It decreed: WHEREFORE, the instant appeal is DENIED, the Decision of the Regional Trial Court, Branch 27, in Manila, in Criminal Case No. 99-177393, finding accused-appellants NELIDA DEQUINA y DIMAPANAN, JOSELITO JUNDOC y JAPITANA and NORA JINGABO y CRUZ guilty beyond reasonable doubt of illegally transporting 32[,]995 grams of marijuana is hereby AFFIRMED.[10] Hence, accused-appellants appealed to this Court. In our Resolution dated July 4, 2007, we required the parties to file their respective supplemental briefs, if they so desire, within 30 days from notice. Both parties manifested that they no longer intend to file any supplemental brief considering that they have already raised all the issues and arguments in their original briefs. We find no merit in the present appeal. The accused-appellants were charged with and convicted of the offense of illegal transport of marijuana, defined and penalized under Section 4 of the Dangerous Drugs Act of 1972, as amended, which provides: SEC. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. — The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions. Accused-appellants assail their conviction, asserting that their arrests were illegal. They were not doing anything illegal that would have justified their warrantless arrest, much less a warrantless search of their persons and belongings. A search made without a warrant cannot be justified as an incident of arrest unless the arrest itself was lawful. Accused-appellants insist that the description of the persons who were transporting marijuana relayed by the Chief of Police to the apprehending officers, PO3 Masanggue and SPO1 Blanco, was so general that it could not be sufficient ground for the apprehension of accused-appellants. The People counters that accused-appellants’ arrests were lawful as they were then actually committing a crime. Since accused-appellants were lawfully arrested, the resulting warrantless search of their persons and belongings was also valid. In addition, accused-appellants did not refute that they were indeed transporting prohibited drugs when they were arrested and, instead, alleged as defenses that Dequina acted under the impulse of uncontrollable fear, and Jundoc and Jingabo were merely accommodating a trusted childhood friend. After a thorough review of the records, we find that the judgment of the RTC, as affirmed by the Court of Appeals, was supported by the evidence on record. The People was able to discharge the burden of proving the accused-appellants’ guilt beyond reasonable doubt. Well-settled is the rule that the findings of the trial court on the issue of credibility of witnesses and their testimonies are entitled to great respect and accorded the highest consideration by the appellate court. Since credibility is a matter that is peculiarly within the province of the trial judge, who had the first hand opportunity to watch and observe the demeanor and behavior of witnesses both for the prosecution and the defense at the time of their testimony,[11] we have no reason to disregard the findings of the lower court, as affirmed by the Court of Appeals. In this case, Chief Inspector Sapitula, in the early morning of September 29, 1999, received a tip that a huge amount of marijuana would be transported from Baguio City to the Manila pier, which will then be loaded on vessels bound for Iloilo. Acting on the information he received, Chief Inspector Sapitula dispatched PO3 Masanggue and SPO1 Blanco to the corner of Raxabago and Juan Luna Streets, where they were

supposed to watch out for two females and one male. PO3 Masanggue and SPO1 Blanco posted their mobile patrol car near said corner. From where they were at, PO3 Masanggue and SPO1 Blanco spotted three persons, two females and one male – who turned out to be accused-appellants – alighting from a taxi at the corner of Raxabago and Juan Luna Streets, each carrying a traveling bag. PO3 Masanggue and SPO1 Blanco then followed accused-appellants until one of them, Dequina, dropped her traveling bag. The traveling bag fell open and inside, PO3 Masanggue and SPO1 Blanco saw dried leaves in transparent plastic bags. It was only then that the two police officers apprehended accused-appellants and their persons and belongings searched. As PO3 Masanggue testified: Q Now, on September 29, 1999 at around 6:00 o’clock in the morning will you please tell us where you were?A I reported to Headquarters Office for INSS briefing and information. Q And while you were there can you recall if there is any unusual incident that happened? x x x x WITNESS: Yes, your Honor. PUB. PROS. TAN, JR.: After the formation what happen? x x x x WITNESS After our formation we are informed by our chief that he received a telephone call and receive an information that three persons will be arriving and will deliver marijuana. Q And what else if any did your chief tell you?A And we were dispatched by our chief to the place where the marijuana will be dropped at corner Juan Luna and Raxabago. Q And did you indeed go there?A Yes, sir. Q What district is that, Mr. Witness?A District II of Manila. Q And, then what transpired when you went there?A We saw three persons alighting from a taxi and each of them carrying a black bag. Q And what did you do?A When we saw that the three persons who alighted from the taxi match with the description of the persons we are looking for we approach them. Q And what happen when you approach them?A When we were about to approach them one of them by the name of [Dequina] tried to run away. x x x x Q And then what did you do if any when she try to run away?A We chase her and told her to stop running and she drop the bag she was carrying. Q You state that we, who else are you referring to?A SPO1 Anthony Blanco. Q Now, when she drop the bag from her shoulder what did you do if any?A When the bag fell the zipper open and we saw dry leaves wrapped in a transparent plastic bag from the inside. Q And then what did you do if any?A Because I was convinced that the person is the one match the person we are looking for and as our SOP we brought them to the Ospital ng Maynila for medical examination. Q You stated you brought them or she only you brought her?A No, sir. I’m referring to the three accused in this case. x x x x Q And why did you bring the other two persons when you said that it was only [Dequina] who dropped the bag?A Because they were together who alighted from the taxi. x x x x Q And what transpired in your office?A We brought them to our chief and also the bag which contained the dried leaves suspected to be marijuana and the bag was later turn over to the Anti Narcotic Unit.

x x x x Q So you mean to say that there were three (3) bags that were recover by you from the three accused?A Yes, sir. Q And, so in your office you stated that you turn over the said three (3) bags to whom, Mr. Witness?A To the investigator of DANU. Q What is DANU?A District Anti Narcotics Unit. Q And do you know what they do with the bag if you know to the bag?A They counted the contains of all the bag sir and found out that each bag contain eleven (11) blocks of suspected marijuana.[12] The positive and categorical testimony of PO3 Masanggue, corroborated by SPO1 Blanco, deserves weight and credence in light of the presumption of regularity accorded to the performance of their official duties as police officers, and the lack of motive on their part to falsely testify against accused-appellants. To discredit PO3 Masanggue and SPO1 Blanco, accused-appellants claimed that they were blocked by the police officers at the pier and not at the corner of Juan Luna and Raxabago Streets; and that PO3 Masanggue and SPO1 Blanco did not mention in their testimonies passing by a sari-sari store to meet up with Chief Inspector Sapitula and presenting accused-appellants to the media. These details, however, are immaterial, not really departing significantly from the police officers’ version of the events surrounding accused-appellants’ arrest and search, which yielded the marijuana they were transporting. At any rate, certain parts of the testimonies of PO3 Masanggue and SPO1 Blanco were corroborated by the accused-appellants themselves (i.e., that the police officers, prior to bringing accused-appellants to the police headquarters, first brought accused-appellants to the Ospital ng Maynila for medical examination), PO3 Pama (i.e., that each of the three traveling bags turned over to him by PO3 Masanggue and SPO1 Blanco contained 11 bricks of marijuana), and NBI Forensic Chemist De Lara (i.e., that the dried leaves marked and turned over to him by PO3 Pama tested positive for marijuana). There is no question that the warrantless arrest of accused-appellants and the warrantless seizure of the marijuana were valid and legal. Settled is the rule that no arrest, search or seizure can be made without a valid warrant issued by a competent judicial authority. The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.[13] It further decrees that any evidence obtained in violation of said right shall be inadmissible for any purpose in any proceeding.[14] Nevertheless, the constitutional proscription against warrantless searches and seizures admits of certain legal and judicial exceptions, as follows: (1) warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence; (2) seizure of evidence in plain view; (3) search of a moving vehicle; (4) consented warrantless search; (5) customs search; (6) stop and frisk; and (7) exigent and emergency circumstances.[15] On the other hand, Section 5, Rule 113 of the Rules of Court provides that a lawful arrest without a warrant may be made by a peace officer or a private person under the following circumstances: a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. “Transport” as used under the Dangerous Drugs Act is defined to mean “to carry or convey from one place to another.”[16] The evidence in this case shows that at the time of their arrest, accused-appellants were caught in flagrante carrying/transporting dried marijuana leaves in their traveling bags. PO3 Masanggue and SPO1 Blanco need not even open Dequina’s traveling bag to determine its content because when the latter noticed the police officers’ presence, she walked briskly away and in her hurry, accidentally dropped her traveling bag, causing the zipper to open and exposed the dried marijuana bricks therein. Since a crime was then actually being committed by the accused-appellants, their warrantless arrest was legally justified, and the following warrantless search of their traveling bags was allowable as incidental to their lawful arrest. Besides, accused-appellants did not raise any protest when they, together with their bags containing marijuana, were brought to the police station for investigation and subsequent prosecution. In People v. Fernandez,[17] we ruled that: When one voluntarily submits to a search or consents to have it made of his person or premises, he is precluded from later complaining thereof. x x x. The right to be secure from unreasonable search may, like every right, be waived and such waiver may be made either expressly or impliedly.[18] In order to exonerate herself from criminal liability, Dequina contends that she transported the marijuana under the compulsion of an irresistible fear. Jundoc and Jingabo, on the other hand, claim that they went along to accommodate Dequina, a trusted childhood friend. We are unconvinced. A person who acts under the compulsion of an irresistible force, like one who acts under the impulse of an uncontrollable fear of equal or greater injury, is exempt from criminal liability because he does not act with freedom. Actus me invito factus non est meus actus. An act done by me against my will is not my act. The force contemplated must be so formidable as to reduce the actor to a mere instrument who acts not only without will but against his will. The duress, force, fear or intimidation must be present, imminent and impending, and of such nature as to induce a well-grounded apprehension of death or serious bodily harm if the act be done. A threat of future injury is not enough. The

compulsion must be of such a character as to leave no opportunity for the accused for escape or self-defense in equal combat.[19] Here, Dequina’s version of events that culminated with her and Jundoc and Jingabo’s arrests on September 29, 1999 is implausible. Equally far-fetched is Jundoc and Jingabo’s assertion of blind trust in Dequina and total ignorance of the transportation of marijuana. We agree with the Court of Appeals when it observed that: While [Dequina] wants us to believe that she acted under compulsion and that a certain Sally called all the shots, she nevertheless admitted that their accommodations when they reached Manila was with her aunt in Guadalupe. On cross examination, she said that it was she who told Sally that they were going to stay with her aunt. More importantly, the alleged threat on her daughter was unclear. At one point in her testimony, she claimed that her daughter was to be under the custody of Sally while she was away. However, during the trial her lawyer manifested that her daughter was in fact in Manila and in the court room attending the hearing. Moreover, accused-appellants themselves picture a very precise and elaborate scheme in the transport of the huge shipment of marijuana. With this, it is simply contrary to human experience that the people behind the shipment would entrust the same to an unknowing and uncertain person such as [Dequina] and her two stooges, unless they themselves were in on it. Furthermore, the scheme or transport of the marijuana shipment was so exact that [Jundoc] and [Jingabo] only had enough time to rest in the house of [Dequina’s] aunt in Guadalupe – from the time they arrived in Manila in the morning to the time they had to go to provincial bus station in the afternoon, negating their purported desire to see Manila. Clearly, the defense’ story is riddled with holes.[20] Conspiracy can be inferred from and proven by acts of the accused themselves when said acts point to a joint purpose and design, concerted action, and community of interests. Although the same degree of proof required for establishing the crime is required to support a finding of the presence of conspiracy, it need not be proven by direct evidence. Conspiracy may be deduced from the mode and manner in which the offense was perpetrated.[21] Thus, as found by the RTC, conspiracy by and among accused-appellants was present in this case, as it may be inferred from the following acts of accused-appellants: This was shown when by their account, the three accused left Iloilo together, stayed in Manila for a while, left for Dau, Mabalacat, Pampanga and returned to Manila thereafter. They were together when the apprehending police officers pounced on them near the pier premises on their way back to Iloilo, each of them carrying a travelling bag which contained marijuana. x x x.[22] With the enactment and effectivity of Republic Act No. 7659,[23] the penalty imposable upon violators of Section 4 of the Dangerous Drugs Act of 1972, as amended, is reclusion perpetua to death and a fine ranging from Five Hundred Thousand Pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00) if the marijuana involved weighs 750 grams or more. The quantity of marijuana involved in this case weighs 32,995 grams, hence, the applicable penalty is reclusion perpetua to death. Since the imposable penalty is composed of two indivisible penalties, the rules for the application of indivisible penalties under Article 63[24] of the Revised Penal Code should be applied. As there is neither mitigating nor aggravating circumstance in the commission of the crime, the RTC correctly imposed the lesser penalty of reclusion perpetua. Finally, considering that the penalty imposed is the indivisible penalty of reclusion perpetua, the Indeterminate Sentence Law could not be applied.[25] WHEREFORE, the instant appeal is DENIED. The Decision dated August 16, 2006 of the Court of Appeals in CA-G.R. CR.-H.C. No. 01431, which affirmed the Decision dated October 30, 2000 of the Regional Trial Court of Manila, Branch 27, in Criminal Case No. 99-177383, finding accused-appellants GUILTY of the crime of illegal transport of marijuana and sentencing them to reclusion perpetua, and to pay a fine of P500,000.00 each, is hereby AFFIRMED. Costs against accused-appellants.SO ORDERED.

FIRST DIVISION PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

-versus-

ERNESTO UYBOCO y RAMOS, Defendant-Appellant. G.R. No. 178039 Present: CORONA, C.J., Chairperson VELASCO, JR.,

LEONARDO-DE CASTRO, DEL CASTILLO, and PEREZ, JJ.

Promulgated: January 19, 2011x----------------------------------------------------------------------------------------x D E C I S I O N PEREZ, J.: Subject of this appeal is the 27 September 2006 Decision[1] promulgated by the Court of Appeals, affirming the Regional Trial Court’s (RTC) Judgment[2] in Criminal Case Nos. 93-130980, 93-132606, and 93-132607, finding Ernesto Uyboco y Ramos (appellant) guilty of three (3) counts of kidnapping for ransom. Appellant, along with now deceased Colonel Wilfredo Macias (Macias) and several John Does were charged in three separate Informations, which read as follow: In Criminal Case No. 93-130980: That in the morning of December 20, 1993 and for sometime subsequent thereto in Manila and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, did then and there willfully, unlawfully and feloniously kidnap, carry away and detain the minor, JESON KEVIN DICHAVES, five (5) years old, against his will and consent, thus depriving him of his liberty, for the purpose of extorting ransom for his release, which after payment thereof in the amount of P1,320,000.00 in cash and P175,000.00 worth of assorted jewelry, including a Colt .45 Caliber Pistol with SN 14836 or a total of ONE MILLION FIVE HUNDRED THOUSAND PESOS (P1,500,000.00) was divided by said accused between and/or among themselves to the damage and prejudice of the aforementioned victim/or his parents.[3]

In Criminal Case No. 93-132606: That in the morning of December 20, 1993 and for sometime subsequent thereto in Manila and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, did then and there willfully, unlawfully and feloniously kidnap, carry away and detain the minor, JESON KIRBY DICHAVES, two (2) years old, against his will and consent, thus depriving him of his liberty, for the purpose of extorting ransom for his release, which after payment thereof in the amount of P1,320,000.00 in cash and P175,000.00 worth of assorted jewelry, including a Colt .45 Caliber Pistol with SN 14836 or a total of ONE MILLION FIVE HUNDRED THOUSAND PESOS (P1,500,000.00) was divided by said accused between and/or among themselves to the damage and prejudice of the aforementioned victim/or his parents.[4] In Criminal Case No. 93-132607:

That in the morning of December 20, 1993 and for sometime subsequent thereto in Manila and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, did then and there willfully, unlawfully and feloniously kidnap, carry away and detain NIMFA CELIZ, against her will and consent, thus depriving her of liberty, for the purpose of extorting ransom for her release, which after payment thereof in the amount of P1,320,000.00 in cash and P175,000.00 worth of assorted jewelry, including a Colt .45 Caliber Pistol with SN 14836 or a total of ONE MILLION FIVE HUNDRED THOUSAND PESOS (P1,500,000.00) was divided by said accused between and/or among themselves to the damage and prejudice of the aforementioned victim.[5] The arraignment was held in abeyance twice.[6] Finally, the arraignment was set on 22 October 1996. Appellant and Macias, with the assistance of their counsels, however refused to enter a plea. This prompted the RTC to enter a plea of “Not Guilty” for each of them. Trial on the merits ensued. The prosecution presented the following witnesses: Nimfa Celiz (Nimfa), Jepson Dichaves (Jepson), Police Superintendent Gilbert Cruz (P/Supt. Cruz), Police Superintendent Mario Chan (P/Supt. Chan), Police Inspector Cesar Escandor (P/Insp. Escandor) and Carolina Alejo, whose version of facts are summarized as follows: At around 10:30 a.m. on 20 December 1993, Nimfa and her wards, siblings Jeson Kevin and Jeson Kirby Dichaves were riding in the Isuzu car of the Dichaves family, together with Yusan Dichaves (Yusan). Driver Pepito Acon (Acon) dropped off Yusan at Metrobank in Claro M. Recto Avenue, Manila. While waiting for Yusan, Acon drove along Bilibid Viejo, Sampaloc. When the vehicle passed by in front of San Sebastian Church, a stainless jeep with two men and one woman described as a tomboy on board, suddenly blocked its way. One of the men, who was in police uniform accosted Acon and accused him of hitting the son of a Presidential Security Group (PSG) General apparently with a stone when the vehicle ran over it. Acon denied the charges but he was transferred to the stainless jeep while the man in police uniform drove the Isuzu car. The tomboy sat next to Nimfa who then had Jeson Kirby sit on her lap while Jeson Kevin was sitting on the tomboy’s lap. They were brought to a house in Merville Subdivision, Parañaque.[7] While still in garage of the house, Nimfa was able to sneak out of the car and place a call to the secretary of her employer to inform the latter that they were in Merville Subdivision. She came back to the car undetected and after a while, she and her wards were asked to alight from the car and they were locked inside the comfort room.[8] Jepson was at his office at 10:00 a.m. of 20 December 1993. He received a call from his wife asking him if Nimfa or Acon called up, as she had been waiting for them at Metrobank where she was dropped off earlier. After 15 minutes, Yusan called again and was already hysterical because she could not find the car when she roamed around the area. Jepson immediately called up his brother Jaime and some police officers to inform them that his sons were missing. When Jepson arrived at Metrobank at around 11:30 a.m., he received a call from his secretary informing him that Nimfa called about their whereabouts. When Jepson got back to his office, his secretary informed him that an unidentified man called to inform them that he has custody of the children and demanded P26 Million.[9] Meanwhile in Merville Subdivision, the man in police uniform introduced himself to Nimfa as Sarge. He asked Nimfa for information regarding her name and her employer’s telephone number. She feigned ignorance of those information. She even claimed that she was merely a new employee.[10] Sarge informed Nimfa that they were in Fairview and that she was asked if she knew how to go home. Nimfa chose to stay with her wards. When the phone rang, Sarge went out of the house and Nimfa again sneaked a phone call to her employer informing them that they were being held up in Merville Subdivision.[11]

Jepson, through Jaime’s help, went to the house of then Vice-President Joseph Estrada (Vice-President Estrada) at 8:00 p.m. Thereat, he met General Jewel Canson (Gen. Canson), General Panfilo Lacson (Gen. Lacson) and Major Ray Aquino (Major Aquino). Vice-President Estrada ordered the police generals to rescue Jepson’s sons and arrest the kidnappers.[12] At 6:00 p.m., the kidnappers called Jepson and reduced the ransom to P10 Million.[13] That night, Nimfa was able to speak to Jepson when two men handed the telephone to her. She recognized one of them as appellant, because she had seen the latter in her employer’s office sometime in the first week of December 1993.[14] On the following noon of 21 December 1993, the kidnappers called up Jepson numerous times to negotiate for the ransom. In one of those calls, Jepson was able to recognize the voice of appellant because he had several business transactions with the latter and they have talked for at least a hundred times during a span of two to four years.[15] On 22 December 1993, the parties finally agreed to a ransom of P1.5 Million. Jepson offered P1.3 Million in cash and the balance to be paid in kind, such as jewelry and a pistol.[16] Appellant asked Jepson to bring the ransom alone at Pancake House in Magallanes Commercial Center. Jepson called up Gen. Canson and Gen. Lacson to inform them of the pay-off.[17] At around 1:00 p.m. of even date, Nimfa was able to talk to Jepson and the latter informed her that they would be released that afternoon.[18] At 3:00 p.m., Jepson drove his white Toyota Corolla car and proceeded to Pancake House in Magallanes Commercial Center. He placed the money inside a gray bag and put it on the backseat. Jepson received a call from appellant at 4:00 p.m. who ordered him to put the bag in the trunk, leave the trunk unlocked, and walk away for ten (10) minutes without turning back. Later, appellant checked on his trunk and the bag was already gone. Appellant then apprised him that his sons and helper were already at the Shell Gasoline Station along South Luzon Expressway. He immediately went to the place and found his sons and helper seated at the corner of the gas station.[19] P/Insp. Escandor was assigned to proceed to Magallanes Commercial Center, together with two other police officers. They reached the place at 3:30 p.m. and positioned themselves in front of the Maranao Arcade located at Magallanes Commercial Center. He brought a camera to cover the supposed pay-off. He took a total of 24 shots.[20] He identified Macias together with appellant in Magallanes Commercial Center and the latter as the one who took the ransom.[21] P/Supt. Chan was one of the team leaders dispatched also at Magallanes Commercial Center in Makati on 22 December 1993 to take a video coverage on the supposed pay-off. He witnessed the pay-off and identified appellant as the one who took the bag containing the ransom money from the car trunk of Jepson.[22] P/Supt. Cruz is assigned to the now defunct Presidential Anti-Crime Commission Task Force Habagat and one of the team leaders of Special Project Task Force organized on 22 December 1993 with the primary task of apprehending the kidnappers of Dichaves’ children and helper. His group was assigned at Fort Bonifacio to await instructions from the overall Field Command Officer Gen. Lacson. They had been waiting from 4:00 p.m. until 6:00 p.m. when they received information that the kidnap victims were released unharmed. They were further asked to maintain their position in Fort Bonifacio. At around 7:45 p.m., they heard on their radio that the suspect’s vehicle, a red Nissan Sentra was heading in their direction. A few minutes later, they saw the red car and tailed it until it reached Dasmariñas Village in Makati. They continuously followed the car inside the village. When said car slowed down, they blocked it and immediately approached the vehicle.[23] They introduced themselves as police officers and accosted the suspect, who turned out to be appellant. Appellant suddenly pulled a .38 caliber revolver and a scuffle took place. They managed to subdue appellant and handcuffed him. Appellant was requested to open the compartment and a gray bag was found inside. P/Supt. Cruz saw money, jewelry and a gun inside the bag. Appellant was then brought to Camp Crame for questioning.[24] At 8:00 p.m., Jepson received a call from Gen. Lacson asking him to go to Camp Crame. He and Nimfa went to Camp Crame where he saw appellant alone in the office of Gen. Canson. He then saw the bag containing the ransom money, pieces of jewelry and his gun on the table. Photographs were taken and Jepson was asked to identify them.[25] A written inventory was prepared on the contents of the bag.[26] It was found out that a portion of the ransom money was missing. It was then that appellant revealed that the missing money was in the possession of Macias. Appellant accompanied P/Supt. Cruz and his team to the residence of Macias in Camp Aguinaldo. P/Supt. Cruz waited for Macias until 4:00 a.m. on the following day and placed him under arrest. Macias was asked where the rest of the ransom money was and Macias went inside the house and retrieved a red bag inside a small cabinet. P/Supt. Cruz prepared a receipt of the seized property from Macias. Macias placed his signature on the receipt.[27] Carolina Alejo was the owner of the house in Merville Subdivision where the kidnap victims were detained. She stated that she leased the house to appellant. On 23 December 1993, it came to her knowledge that said house was used in the kidnapping. She noticed that the lock of the comfort room was reversed so that it could only be locked from the outside. She considered this unusual because she personally caused the door knob to be installed.[28] The defense, on its part, presented appellant, Florinda Sese Barcelona (Ms. Sese), Dr. Jaime Leal (Dr. Leal), and retired Colonel Ramon Navarro (Col. Navarro). Appellant testified that he came to know Jepson when he was introduced to him by Col. Navarro in 1989 as the importer of police equipment and accessories. Jepson wanted to buy revolving lights, police sirens and paging system. Through Navarro, appellant also met Macias who was then selling his security agency in July 1993. He admitted that Jepson had been lending him money since 1990 and his total borrowings amounted to P8.5 Million in December 1993. Appellant also knew Nimfa since 1990 and had met her five (5) times in the office of Jepson where Nimfa usually served him coffee.[29] In December 1993, he rented a house in Merville Subdivision for his mother. He was given the key to the house in 15 December 1993 but he denied going to said place on 20, 21, 22, 23 of December 1993. At 3:00 p.m. of 20 December 1993, he received a call from Jepson asking for P1 Million, as partial payment of his loan. Jepson informed appellant that his sons were kidnapped and he requested appellant to negotiate with the kidnappers for the release of his children. Out of pity, appellant agreed. He actively participated in the negotiations between 20 to 22 of December 1993, where he successfully negotiated a lower ransom of P1.5 Million. On 11:30 a.m. of 22 December 1993, Jepson again requested appellant to deliver the ransom money to the kidnappers. Appellant acceded to the request. He asked Macias, who was in his office that day, to accompany him. The kidnappers asked appellant to proceed to the Makati area and wait for further instructions. Appellant called up Jepson who told him that he would deliver the money to appellant once instructions were given by the kidnappers. The kidnappers finally called and asked appellant to proceed to Shell Gasoline Station-Magallanes. He informed Jepson of this fact and the latter asked appellant to meet him in Magallanes Commercial Center where he would just put the money inside the car trunk and leave it unlocked. Appellant took the money from Jepson’s car and put it inside his car trunk and proceeded to Shell Gasoline station.[30] Appellant and Macias did not see the kidnappers and Jepson’s children at the station. He tried calling Jepson but failed to communicate with him. They then decided to go back to the office in Cubao, Quezon City. At 7:00 p.m., he received a call from the kidnappers who were cursing him because they apparently went to the Shell Gasoline Station and noticed that there were many policemen stationed in the area, which prompted them to release the victims. Appellant left his office at around 7:20 p.m. to go home in Dasmariñas Village, Makati. When he was about ten (10) meters away from the gate of his house, a car blocked his

path. He saw P/Supt. Cruz, a certain Lt. Rodica and two other men alight from the car and were heavily armed. They pulled him out of the car and hit him with their firearms.[31] Ms. Sese was at the office of appellant on 22 December 1993 when she was told by the secretary, who appeared shaken, that a caller was looking for appellant. She saw appellant arrive at the office with Macias.[32] Dr. Leal, the medico-legal officer at Philippine National Police (PNP) Crime Laboratory, presented the medico-legal certificate of appellant and testified that the injuries of appellant could have been sustained during the scuffle.[33] Col. Navarro introduced appellant to Jepson. He was privy to the loan transactions between appellant and Jepson where the former asked loans from the latter. He even served as guarantor of some of the obligations of appellant. When the checks issued by appellant were dishonored by the bank, Jepson filed a case against Navarro for violation of Batas Pambansa Blg. 22, wherein the latter was eventually acquitted.[34] While the criminal cases were undergoing trial, Macias died. Consequently, his criminal liability is totally extinguished under Article 89, paragraph 1 of the Revised Penal Code.[35] On 30 August 2002, the RTC rendered judgment finding appellant guilty beyond reasonable doubt of the crime of kidnapping for ransom. The dispositive portion reads: WHEREFORE, premises considered herein accused Ernesto Ramos Uyboco is hereby found guilty beyond reasonable doubt of the crime of Kidnapping for Ransom penalized by Article 267 of the Revised Penal Code, as amended by R.A. 1084. He is hereby ordered to suffer the prison term of reclusion perpetua for three (3) counts together with the accessory penalties provided by law. He should pay private complainant Jepson Dichaves the amount of P150,000.00 as moral damages. The above-described .45 Caliber Colt Pistol and 12-gauge Remington shotgun as well as the Nissan Sentra 4-Door Sedan are hereby confiscated in favor of the government. The Warden of Metro Manila Rehabilitation Center, Camp Ricardo R. Papa, Bicutan, Taguig, Metro Manila is hereby ordered to immediately transfer the said accused to the Bureau of Corrections, National Bilibid Prison, Muntinlupa City. The Jail Director of said bureau is ordered to inform this court in writing soonest as to when the said official took custody of the accused.[36] The trial court held that the prosecution had established with the required quantum of evidence that the elements of kidnapping for ransom were present and that appellant was the author of said crime. Appellant filed a notice of appeal to the Supreme Court. Conformably to People v. Mateo,[37] this Court in a Resolution dated 6 September 2004, referred the case to the Court of Appeals for appropriate action and disposition.[38] On 27 September 2006, the Court of Appeals affirmed in toto the Decision of the RTC, the dispositive portion of which reads: WHEREFORE, the August 30, 2002 Decision of the Regional Trial Court, national Capital Judicial Region, Br. 18, Manila, in Criminal Cases Nos. 93-130980, 93-132606, and 93-132607, in convicting Ernesto Uyboco of three (3) counts of Kidnapping for Ransom is hereby AFFIRMED in toto. No costs.[39] A motion for reconsideration was filed by appellant but the same was denied in a Resolution dated 22 December 2006. Hence, this appeal. On 3 September 2007, this Court required the parties to file their respective supplemental briefs. On 25 October 2007, appellant’s counsel filed a withdrawal of appearance. Appellee manifested that it is no longer filing a Supplemental Brief.[40] Meanwhile, this Court appointed the Public Attorney’s Office as counsel de oficio for appellant. Appellee also filed a manifestation that it is merely adopting all the arguments in the appellant’s brief submitted before the Court of Appeals.[41] Appellant prays for a reversal of his conviction on three (3) counts of kidnapping for ransom based on the following assignment of errors: I. THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE DISTURBING WHISPERS OF DOUBT REPLETE IN THE PROSECUTION’S THEORY. II. THE TRIAL COURT ERRED IN GIVING CREDENCE TO NIMFA CELIZ’ TESTIMONY NOTWITHSTANDING THE INCREDIBILITY OF HER STORY. III. THE TRIAL COURT ERRED IN PRESUMING REGULARITY IN THE PERFORMANCE OF OFFICIAL FUNCTIONS OVER THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE OF THE ACCUSED UYBOCO. IV. THE TRIAL COURT ERRED IN ADMITTING THE TESTIMONY OF JEPSON DICHAVEZ NOTWITHSTANDING HIS DISPLAYED PROPENSITY FOR UNTRUTHFULNESS. V. THE TRIAL COURT ERRED IN ADMITTING MOST OF THE OBJECT EVIDENCE PRESENTED AGAINST THE ACCUSED-APPELLANT SINCE THEY WERE PROCURED IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS. VI. THE TRIAL COURT ERRED IN FINDING OF FACT THAT THE MERVILLE PROPERTY LEASED BY ACCUSED-APPELLANT FROM MS. CAROLINA ALEJO WAS THE VERY SAME HOUSE WHERE NIMFA CELIZ AND HER WARDS WERE ALLEGEDLY DETAINED. VII. THE TRIAL COURT ERRED IN HOLDING THAT ACCUSED UYBOCO AS HAVING PARTICIPATED IN THE ABDUCTION OF JESON KEVIN, JESON KIRBY, AND NIMFA CELIZ AS NOT A SINGLE EVIDENCE ON RECORD SUPPORTS THE SAME. VIII. THE TRIAL COURT ERRED IN NOT ACQUITTING THE ACCUSED CONSIDERING THAT ABDUCTION, AN IMPORTANT ELEMENT OF THE CRIME, WAS NEVER ESTABLISHED AGAINST HIM. IX. THE TRIAL COURT ERRED IN HOLDING THE ACCUSED GUILTY OF KIDNAPPING FOR RANSOM WITHOUT DISCUSSING THE PARTICIPATION OF ACCUSED MACIAS CONSIDERING THAT THE CHARGE WAS FOR CONSPIRACY.[42] The ultimate issue in every criminal case is whether appellant’s guilt has been proven beyond reasonable doubt. Guided by the law and jurisprudential precepts, this Court is unerringly led to resolve this issue in the affirmative, as we shall hereinafter discuss.

In order for the accused to be convicted of kidnapping and serious illegal detention under Article 267 of the Revised Penal Code, the prosecution is burdened to prove beyond reasonable doubt all the elements of the crime, namely: (1) the offender is a private individual; (2) he kidnaps or detains another, or in any manner deprives the latter of his liberty; (3) the act of detention or kidnapping must be illegal; and (4) in the commission of the offense any of the following circumstances is present: (a) the kidnapping or detention lasts for more than three days; (b) it is committed by simulating public authority; (c) serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (d) the person kidnapped and kept in detained is a minor, the duration of his detention is immaterial. Likewise, if the victim is kidnapped and illegally detained for the purpose of extorting ransom, the duration of his detention is immaterial.[43] We are in full accord with the findings of the trial court that these elements were proven by the prosecution, thus: 1) Accused Uyboco is a private individual;2) Accused Uyboco together with the unidentified persons/companions of accused Uyboco, referred to as John Does, forcibly abducted the two sons of private complainant Jepson Dichaves, namely: then five-year-old Jeson Kevin and two-year old Jeson Kirby as well as their maid or “yaya” Nimfa Celiz. Their abduction occurred at about 10:30 in the morning of December 20, 1993. The three victims were on board Jepson’s Isuzu pick-up driven by Jepson’s driver Pepito Acon. The moving pick-up was in front of San Sebastian Church, Legarda, Manila when its path was blocked by a stainless jeep. A man in white t-shirt and brown vest accosted driver Pepito for having allegedly ran over a stone that hit a son of a general working at the Presidential Security Group. Pepito was made to ride in a jeep. The same man drove the pick-up to a house in Merville Subdivision, Paranaque, Metro Manila, where the victims were illegally detained from December 20 to 23, 1993. x x x x 3) The act of the detention or kidnapping of the three victims was indubitably illegal. Their detention was not ordered by any competent authority but by the private individual whose mind and heart were focused to illegally amassed huge amount of money thru force and coercion for personal gain; x x x x 5) Both accused Uyboco and Macias had successfully extorted ransom by compelling the parents of the minors to give in to their unreasonable demands to get the huge amount of money, a gun, and pieces of jewelry x x x.[44] These facts were based on the narrations of the prosecution’s witnesses, particularly that of Nimfa, the victim herself and Jepson, the father of the two children abducted and the person from whom ransom was extorted. Nimfa recounted how she and her wards were abducted in the morning of 20 December 2003 and detained in a house in Merville Subdivision, Parañaque, thus: A: When we arrived at the office after awhile we boarded the pick-up and then we left, Sir.x x x x

A: Those who boarded the pick-up, the driver Pepito Acon, Mrs. Yusan Dichavez, the two (2) children and myself, Sir.

x x x x

A: We proceeded to Metrobank Recto, Sir.

x x x x

Q: And when you stopped there, what happened?

A: Mrs. Yusan Dichavez alighted in order to cross the street to go to Metrobank, Sir.

Q: And then what followed next?

A: The driver, Jeson Kirvy, Jeson Kervin and myself made a right turn and we entered an alley, Sir.

x x x x

Q: Before reaching Legarda, do you know of any untowards incident that happened?

A: Yes, sir.

ATTY. PAMARAN:

Q: What?

A: When we were already in front of the San Sebastian Church and Sta. Rita College there was a stainless jeep that block our path, Sir.

Q: How many persons were inside that stainless jeep, if you know?

A: I have not notice, but there were many, Sir.

Q: How did that stainless jeep stop your vehicle?

A: Our driver Pepito Acon was signaled by the persons on the stainless jeep to stay on the side, sir.

Q: What did your driver Pepito Acon do when the sign was made to him?

A: The driver stopped the pick-up and set on the side, Sir.

Q: And then what followed next after he stopped?

x x x x

A: The man told us that we will be brought to the precinct because when we then make a turn at Kentucky a stone was ran and hit the son of the General of PSG from Malacañang, Sir.

x x x x

Q: What did Pepito Acon do? When told to alight?

A: Pepito Acon alighted, Sir.

Q: Then what followed next?

A: After that Pepito alighted and the man who came from the stainless jeep boarded and he was the one who drove, Sir.

x x x x

A: When that man boarded the pick-up there was a T-bird who also boarded on the passenger’s side, Sir.

x x x x

Q: When you entered the gate of Merville Subdivision, where did you proceed?

A: When we entered the gate there was a street which I do not know and when we went straight as to my estimate we were going back to the main gate, Sir.

x x x x

A: The pick-up stopped in front of a low house near the gate, Sir.

Q: When you stopped in front of the gate, that house which is low, what happened?

A: The tomboy alighted and opened the gate of that low house, Sir.

Q: What followed next after the tomboy opened the gate?

A: After the tomboy opened the gate, the driver entered the pick-up inside, Sir.

x x x x

Q: And when you entered the house, what happened?

A: When we entered the house we were confined at the comfort room, Sir.[45]

Jepson gave an account how appellant demanded ransom from him and eventually got hold of the money, thus:

A: Then Macias offered the release of the two (2) boys for 1.5 Million each, Sir.

A: Then I started begging and bargaining with them and then suddenly Uyboco was again the one continuing the conversation, Sir.

Q: What did you say?

A: After some bargaining and beggings he reduced the demand to 1.7 million, and he asked for my wife to talk to because according to him I was very hard to talk too, Sir.

ATTY. PAMARAN:

Q: You said he, to whom are you referring?

A: To Mr. Uyboco, Sir.

Q: What followed?

A: After some more bargaining and begins he further reduced their demand to1.5 million x x x.

x x x xQ: And after that what followed?

A: I offered them to fill up the different (sic) in kind, Sir.

Q: Why to offer the different (sic) in kind?

A: To fill up the different (sic) between 1.3 million to 1.5 million, Sir.

Q: So in short, how much cash did you offer?

A: I offered it for 1.3 million, Sir.

Q: How about the different (sic), what will it be?

A: At this point, he asked me to include my gun, Sir.

Q: How about the other balance?

A: My jewelry, Sir.[46]

x x x x

Q: And what did you do after you were in possession of the money, the jewelries, the gun and the bag?

A: I returned to my office and put the cash in the bag.

Q: In short, what were those inside the bag?

A: The P1.325 million money, the gun and the assorted jewelries.

Q: And after placing them inside the bag, what happened?

A: I left my office at 3:00 PM to proceed to the Pancake House at theMagallanes Commercial Center.

Q: Where did you place that bag?

A: That bag, at that time, was placed at the back seat when I was going to the Pancake House.

x x x x

Q: What else did he tell you?

A: x x x He told me to put the ransom bag x x x inside my trunk compartment, leave it and lock the car, and walk away without looking back for ten (10) minutes.

Q: After that instruction, what happened, or what did you do?A: After few minutes, he called again. He told me to drive and park the car beside the car Mitsubishi Colt Mirage with Plate NO. NRZ-863.

Q: Did he tell you where was that Colt Mirage car parked?

A: Yes, in front of the Mercury Drug Store.

Q: And then, what did you do?

A: I followed his instruction.

Q: And what followed next?

A: After few more minutes, he called again and asked if I am in front of the Mercury Drug Store already.

Q: And what was your answer?

A: I told him yes and he again gave me the final arrangement, but he uttered I walk back towards the Pancake House without looking back for ten (10) minutes.

Q: And?

A: And informing me the whereabouts of my sons.

ATTY. PAMARAN:

Q: Did you comply with that instruction?

A: Yes, sir.

Q: What did you do?

A: I walked towards the Pancake House without looking back for more than ten (10) minutes.

Q: That car that you parked near the Mitsubishi Colt, how far was your car the parked form that Colt Mirage?

A: Beside the Colt Mirage, Sir.

Q: And after you parked the car, what followed?

A: I walked towards the Pancake House without looking back and then I turned to the back of the supermarket and I checked my trunk and saw that the bag is gone already.

Q: And what followed thereafter?

A: A few minutes, Uyboco called up and told me that my sons were at the shell station after the Magallanes Commercial Center inside the Bibingkahan.[47]

Now, appellant seeks to destroy the credibility of these witnesses by imputing inconsistencies, untruthfulness and incredibility in their testimonies.

Appellant harps on the supposed inconsistencies in the testimony of Nimfa, namely: First, Nimfa stated that on the day they were to be released, they, together with Macias, left Merville Subdivision at 4:00 p.m. while appellant stayed behind. However, P/Insp. Escandor testified that at around 4:00 p.m., he saw Macias and appellant at Magallanes Commercial Center. Second, Nimfa could not properly identify the number of kidnappers. Third, Nimfa failed to state in her affidavit and during the direct examination that Sarge had a gun, but later on cross-examination, she intimated that Sarge had a gun. Fourth, it was incredible that Nimfa was able to identify the route taken by the kidnappers to the safe house because she was not allegedly blindfolded. Fifth, it was strange for Nimfa to say that two persons, Macias and appellant, were holding the receiver and the dialing mechanism whenever they hand the phone to her. Sixth, it was impossible for Nimfa to have access to an operational telephone while in captivity.[48] The Court of Appeals correctly dismissed these inconsistencies as immaterial, in this wise:

The purported inconsistencies and discrepancies involve estimations of time or number; hence, the reference thereto would understandably vary. The rule is that inconsistencies in the testimonies of prosecution witnesses on minor details and collateral matters do not affect the substance of their declaration, their veracity or the weight of their testimonies. The inconsistencies and discrepancies of the testimonies, in the case at bar, are not of such nature as would warrant the reversal of the decision appealed from. On the contrary, such trivial inconsistencies strengthen, rather than diminish, Celiz’ testimony as they erase suspicion that the same was rehearsed.

The fact that Uyboco and his companions neither donned masks to hide their faces nor blindfolded or tied up their victims goes to show their brazenness in perpetrating the crime. Besides, familiarity with the victims or their families has never rendered the commission of the crime improbable, but has in fact at times even facilitated its commission. Moreover, the fact that there was a usable phone in the house where Celiz and the kids were held captive only proves that, in this real world, mistakes or blunders are made and there is no such thing as a perfect crime. On a different view, it may even be posited that the incredible happenings narrated by Celiz only highlights the brilliance of Uyboco and his companions. Verily, in committing the crime of kidnapping with ransom, they adopted and pursued unfamiliar strategies to confuse the police authorities, the victim, and the family of the victims.[49]

Appellant then zeroes in on Jepson and accuses him of lying under oath when he claimed that appellant owed him only P2.3 Million when in fact, appellant owed him P8.5 Million. Appellant charges Jepson of downplaying his closeness to him when in fact they had several business deals and Jepson would address appellant as “Ernie.” Moreover, it was unbelievable for Jepson to be able to identify with utmost certainty that the kidnapper he was supposedly talking to was appellant. Finally, appellant claims that Jepson’s motive to maliciously impute a false kidnapping charge against him boils down to money. Among the businesses that Jepson owns was along the same line of business as that of appellant, which is the supply of police equipment to the PNP. To eliminate competition and possibly procure all contracts from the PNP and considering his brother’s close association to then Vice-President Estrada, Jepson crafted and executed a frame up of appellant.

And the Court of Appeals had this to say:

For one, the strategy used, which is the use of unconventional or not so commonly used strategy, to apprehend the kidnappers of Celiz and the Dichaves’ children is, by reason of their special knowledge and expertise, the police operatives’ call or prerogative. Accordingly, in the absence of any evidence that said agents falsely testified against Uyboco, We shall presume regularity in their performance of official duties and disregard Uyboco’s unsubstantiated claim that he was framed up.

Secondly, matters of presentation of witnesses by the prosecution and the determination of which evidence to present are not for Uyboco or even the trial court to decide, but the same rests upon the prosecution. This is so since Section 5, Rule 110 of the Revised Rules of Court expressly vests in the prosecution the direction and control over the prosecution of a case. As the prosecution had other witnesses who it believes could sufficiently prove the case against Uyboco, its non-presentation of other witnesses cannot be taken against the same.[50]

Time and again, this court has invariably viewed the defense of frame-up with disfavor. Like the defense of alibi, it can be just as easily concocted.[51]

We are inclined to accord due weight and respect to the ruling of the lower courts in giving credence to the positive testimonies of Nimfa and Jepson, both pointing to appellant as one of the kidnappers. Both witnesses testified in a clear and categorical manner, unfazed by efforts of the defense to discredit them. As a rule, the assessment of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court, which had a unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct and attitude.[52] While it is true that the trial judge who conducted the hearing would be in a better position to ascertain the truth or falsity of the testimonies of the witnesses, it does not necessarily follow that a judge who was not present during the trial, as in this case, cannot render a valid and just decision, since the latter can very well rely on the transcribed stenographic notes taken during the trial as the basis of his decision.[53]

Appellant raises questions which purportedly tend to instill doubt on the prosecution’s theory, thus:

If Uyboco is really the mastermind of the kidnapping syndicate, why would he demand only P1.325M x x x as ransom? Why would he be the one to personally pick-up the ransom money using his own car registered in his son’s name? Why did he not open the bag containing the ransom to check its contents? Why would he be the one to personally hand the phone to Nimfa Celiz without any mask covering his face x x x. Why would he go back to his family residence x x x with the ransom money still intact in the trunk of his car?

If Nimfa Celiz and her wards were indeed kidnapped, why were they not blindfolded x x x? Why were they not tied x x x?

x x x x

If it is true that the house at Merville, Parañaque was used by accused-appellant Uyboco as the place of the alleged detention x x x how come Uyboco signed the lease contract under his own name? x x x Certainly, any person with the education attainment of at least high school degree, much more so an established businessman like accused-appellant would know that the lease contract and the post-dated checks are incriminating evidence.

x x x (h)ow come no effort was exerted in apprehending Uyboco during day 1 of the kidnapping? x x x Why is their story focused only on the day of the ransom payment? Why did they not apply for a warrant of arrest against accused-appellant Uyboco when they supposedly knew that from day 1, he was the kidnapper?

Why were there no tapes presented in evidence which recorded the conversations between the kidnappers x x x.[54]

Furthermore, appellant stresses that his financial status as an established and well-off businessman negates any motive on his part to resort to kidnapping.

If we indulge appellant’s speculations, we could readily provide for the answers to all these questions – that appellant originally demanded P26 Million but this had been substantially reduced due to aggressive bargaining and negotiations; that appellant personally picked up the ransom money because he could not trust anybody to do the work for him; that appellant did not open the bag containing the money because he trusted Jepson, who then out of fear, would deliver as instructed; that appellant did not cover his face in front of Nimfa because he thought Nimfa would not recognize him; that appellant went back to his family residence because he never thought that Jepson would recognize him as the voice behind one of the kidnappers; that the victims were not blindfolded or tied because Nimfa, who appeared to be ignorant to the kidnappers and the two children barely 5 years old would be emboldened to escape; that appellant never thought that the police would discover the place of detention; that the police employed a different strategy, which is to first secure the victims before they apprehend the kidnappers; that to secure a warrant would be futile as the police then did not have sufficient evidence to pin down appellant to the crime of kidnapping; that there were no actual record of the telephone conversations between Jepson and the kidnappers.

However, to individually address each and every question would be tantamount to engaging in a battle of endless speculations, which do not have a place in a court of law where proof or hard evidence takes precedence. On the other hand, the prosecution presented testimonies and evidence to prove that kidnapping occurred and that appellant is the author thereof.

Appellant seeks to pierce the presumption of regularity enjoyed by police officers to anchor his argument that he has been framed up. He belittles the efforts of the police officers who participated in the operation. Appellant claims that despite knowledge of the place of alleged detention, the police did not try to rescue the kidnap victims. Appellant also notes that while P/Supt. Chan denies installing any listening device to record the conversations of the kidnappers and Jepson, the interview made by a reporter for a television network shows that Major Aquino admitted to taped conversations of appellant’s alleged negotiations for the ransom with Jepson. Appellant insists that these taped conversations do exist.

Appellant cannot rely on a vague mention of an interview, if it indeed exists, to discredit the testimony of P/Supt. Chan. The truth of the matter is appellant failed to prove the existence of the alleged taped conversations. The matters of failure of the police officer to properly document the alleged pay-off, the non-production of the master copy of the video tape, and the chain of custody supposedly broken are not semblance of neglect so as to debunk the presumption of regularity. In the absence of proof of motive on the part of the police officers to falsely ascribe a serious crime against the accused, the presumption of regularity in the performance of official duty, as well as the trial court's assessment on the credibility of the apprehending officers, shall prevail over the accused's self-serving and uncorroborated claim of frame-up.[55]

Appellant then questions the validity of his arrest and the search conducted inside his car in absence of a warrant. The arrest was validly executed pursuant to Section 5, paragraph (b) of Rule 113 of the Rules of Court, which provides:

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 been committed and he has personal knowledge of facts indicating that the person to be arrested has committed it; and, (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. (Emphasis supplied)

The second instance of lawful warrantless arrest covered by paragraph (b) cited above necessitates two stringent requirements before a warrantless arrest can be effected: (1) an offense has just been committed; and (2) the person making the arrest has personal knowledge of facts indicating that the person to be arrested has committed it.[56]

Records show that both requirements are present in the instant case. The police officers present in Magallanes Commercial Center were able to witness the pay-off which effectively consummates the crime of kidnapping. They all saw appellant take the money from the car trunk of Jepson. Such knowledge was then relayed to the other police officers stationed in Fort Bonifacio where appellant was expected to pass by.

Personal knowledge of facts must be based on probable cause, which means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion, therefore, must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. Section 5, Rule 113 of the 1985 Rules on Criminal Procedure does not require the arresting officers to personally witness the commission of the offense with their own eyes.[57]

It is sufficient for the arresting team that they were monitoring the pay-off for a number of hours long enough for them to be informed that it was indeed appellant, who was the kidnapper. This is equivalent to personal knowledge based on probable cause.

Likewise, the search conducted inside the car of appellant was legal because the latter consented to such search as testified by P/Supt. Cruz. Even assuming that appellant did not give his consent for the police to search the car, they can still validly do so by virtue of a search incident to a lawful arrest under Section 13, Rule 126 of the Rules of Court which states:

SEC. 13. Search incident to lawful arrest. — A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant.

In lawful arrests, it becomes both the duty and the right of the apprehending officers to conduct a warrantless search not only on the person of the suspect, but also in the permissible area within the latter's reach. Otherwise stated, a valid arrest allows the seizure of evidence or dangerous weapons either on the person of the one arrested or within the area of his immediate control. The phrase "within the area of his immediate control" means the area from within which he might gain possession of a weapon or destructible evidence.[58] Therefore, it is only but expected and legally so for the police to search his car as he was driving it when he was arrested.

Appellant avers that it was not proven that appellant was present and in fact participated in the abduction of the victims. Lacking this element, appellant should have been acquitted. In a related argument, appellant contends that conspiracy was not proven in the execution of the crime, therefore, appellant’s participation was not sufficiently established.

The Court of Appeal effectively addressed these issues, to wit:

The prosecution was able to prove that: 1) At the time of the kidnapping, the house where Celiz and the Dichaves’ children were kept was being leased by Uyboco; 2) Uyboco was present in the said house at the time when Celiz and the Dichaves’ children were being kept thereat; 3) there being no evidence to the contrary, Uyboco’s presence in the same is voluntary; 4) that Uyboco has in his possession some of the ransom payment; and, 5) that Uyboco was the one who told them that the balance of the ransom payment is with Macias. All these circumstances clearly point out that Uyboco, together with several unidentified persons, agreed or decided and conspired, to commit kidnapping for ransom.

x x x x

x x x Uyboco’s claim, that since it was not proven that he was one of the passengers of the jeep which waylaid the Dichaves’ vehicle on December 20, 1993, he could not be convicted of kidnapping for ransom considering that his participation, if any, was merely to provide the house where the victims were kept, is misplaced.

Moreover, to Our mind, it is inconceivable that members of a kidnapping syndicate would entrust the performance of an essential and sensitive phase of their criminal scheme, i.e. possession of the ransom payment, to people not in cahoots with them, and who had no knowledge whatsoever of the details of their nefarious plan.[59]

The testimonies of Nimfa and Jepson sufficiently point to the participation of appellant. While he was not present during the abduction, he was present in the house where the victims were detained, oftentimes giving the phone to Nimfa to talk to Jepson. He also actively demanded ransom from Jepson. The conspiracy was likewise proven by the above testimonies. Appellant conspired with Macias and other John Does in committing the crime. Therefore, even with the absence of appellant in the abduction stage, he is still liable for kidnapping for ransom because in conspiracy, the act of one is the act of all.[60]

Based on the foregoing, we sustain appellant’s conviction.

WHEREFORE, the Decision dated 30 August 2002 in Criminal Case Nos. 93-130980, 93-132606, and 93-132607 RTC, Branch 18, Manila, finding Ernesto Uyboco y Ramos guilty of kidnapping for ransom, and the Decision dated 27 September 2006 of the Court of Appeals, affirming in toto the Decision of the RTC, are AFFIRMED.

SO ORDERED.

SECOND DIVISION

[G.R. No. 138081. March 30, 2000]

THE BUREAU OF CUSTOMS (BOC) and THE ECONOMIC INTELLIGENCE AND INVESTIGATION BUREAU (EIIB), petitioners, vs. NELSON OGARIO and MARK MONTELIBANO, respondents. JuriÓ smis

D E C I S I O N

MENDOZA, J.:

The question for decision in this case is whether the Regional Trial Court has jurisdiction to enjoin forfeiture proceedings in the Bureau of Customs. In accordance with what is now settled law, we hold it does not.

The facts are as follows: On December 9, 1998, Felipe A. Bartolome, District Collector of Customs of Cebu, issued a Warrant of Seizure and Detention[1] of 25,000 bags of rice, bearing the name of "SNOWMAN, Milled in Palawan" shipped on board the M/V "Alberto," which was then docked at Pier 6 in Cebu City. The warrant was issued on the basis of the report of the Economic Intelligence and Investigation Bureau (EIIB), Region VII that the rice had been illegally imported. The report stated that the rice was landed in Palawan by a foreign vessel and then placed in sacks marked "SNOWMAN, Milled in Palawan." It was then shipped to Cebu City on board the vessel M/V "Alberto." Forfeiture proceedings were started in the customs office in Cebu, docketed as Cebu Seizure Identification Case No. 17-98.

On December 10, 1998, respondent Mark Montelibano, the consignee of the sacks of rice, and his buyer, respondent Elson Ogario, filed a complaint for injunction (Civil Case No. CEB-23077) in the Regional Trial Court of Cebu City, alleging:

4.) That upon arrival of the herein-mentioned sacks of rice at the PIER 5 of Cebu City, Philippines on the 7th day of December 1998 all of the defendants rushed to the port with long arms commanding the plaintiff’s laborer[s] to stopped [sic] the unloading of the same from the vessel named M/V Alberto. The defendants alleged that the herein-mentioned rice were [sic] smuggled from abroad without even proof that the same were [sic] purchased from a particular country.

5.) By the mere suspicion of the defendants that the goods were smuggled from abroad, they immediately put on hold the release of the goods from the ship and at the same time they jointly barred unloading and loading activities of the plaintiffs’ laborers of the herein-mentioned rice.

6.) The plaintiffs then presented all the pertinent and necessary documents to all of the defendants but the latter refused to believe that the same is from Palawan because their minds are closed due to some reason or another [while] the plaintiffs believed that the same is merely an act of harassment. The documents are as follows: Jjjä uris

A.) Certification from the National Food Authority that the same is from Palawan. This is hereto attached as Annex A.

B.) Bill of Lading issued by ANMA PHILIPPINES Shipping Company. This is hereto attached as Annex B.

7.) The acts of the defendants in stopping the loading and unloading activities of the plaintiff’s laborers [have] no basis in law and in fact; thus, unlawful and illegal. A mere suspicion which is not coupled with any proof or evidence to that effect is [a] matter which the law prohibits.

8.) That for more than three days and despite the repeated plea of the plaintiffs that their goods should be released to them and the defendants should stop from barring the unloading and loading activities, the latter blindly refused [to] heed the same.

9.) That the acts of all of the defendants which are greatly unlawful and erroneous would caused [sic] irreparable damage, injury, and grave injustice to the plaintiffs.

10.) That by way of example or correction for the public good and to deter the defendants from doing the same acts to other businessmen, defendants should be held liable for exemplary damages in the amount of not less than One Hundred Thousand Pesos (P100,000.00).

11.) That the plaintiffs are entitled to the relief prayed in this complaint and the whole or part of such reliefs consist in restraining perpetually the defendants from holding the herein-mentioned twenty-five thousand sacks of rice. That defendants should be restrained perpetually from barring the unloading and loading activities of the plaintiffs’ laborers.

12.) That allowing the defendants to continue their unlawful acts would work grave injustice to the plaintiffs. Unless a preliminary injunction be granted ex-parte, grave and irreparable injury and damage would result to the plaintiffs before the latter can be heard on notice.

13.) That if the defendants be not restrained perpetually from their unlawful acts, the herein-mentioned rice will deteriorate and turn into dusts [sic] if not properly disposed.

14.) That a Warrant of Seizure and detention issued by the Collector of Custom[s] dated December 9, 1998 be quashed because the defendants’ act of seizing and detaining the herein-mentioned sacks of rice are illegal. The continuing act of detaining the herein-mentioned sacks of rice will lead to the deterioration of the same. That no public auction sale of the same should be conducted by the Bureau of Custom[s] or any government agenc[y]. lex

15.) That plaintiffs are ready and willing to file a bond executed to the defendants in an amount to be fixed by this Honorable Court to the effect that plaintiffs will pay to the defendants all damages which they may sustain by reason of the injunction if this Honorable Court should finally decide that the plaintiffs are not entitled thereto.

PRAYER

WHEREFORE, Premised on the foregoing, it is most respectfully prayed before this Honorable Court that a restraining order or temporary injunction be immediately issued prohibiting the defendants from holding plaintiffs’ above-mentioned goods. That it is further prayed that a restraining order or temporary injunction be issued prohibiting the defendants from barring the unloading and loading activities of the plaintiffs’ laborers. Further, the plaintiffs prayed that the warrant of seizure and detention issued by the Collector of Custom[s] dated December 9, 1998 be quashed and no public auction sale of the same should be conducted by any government agency or authority.

It is further prayed that after due hearing, judgment be rendered:

1.) Making the restraining order and/or preliminary injunction permanent.

2.) Ordering the defendants jointly to pay exemplary or corrective damages to the plaintiff[s] in the amount of One Hundred Thousand Pesos (P100,000.00)

Such other relief which are just and demandable under the circumstances are also prayed for.[2]

In separate motions, petitioners Bureau of Customs (BOC), Port of Cebu[3] and the EIIB, as well as the Philippine Navy and Coast Guard, sought the dismissal of the complaint on the ground that the RTC had no jurisdiction, but their motions were denied. In its resolution, dated January 11, 1999, the RTC said: Jksm

The Warrant of Seizure and Detention issued by the Bureau of Customs cannot divest this court of jurisdiction since its issuance is without legal basis as it was anchored merely on suspicion that the items in question were imported or smuggled. It is very clear that the defendants are bereft of any evidence to prove that the goods were indeed imported or smuggled, that is why the plaintiffs have very vigorously protested against the seizure of cargoes by the defendants. In fact, as revealed by defendants’ counsel, the Warrant of Seizure and Detention was issued merely to shift the burden of proof to the shippers or owners of the goods to prove that the bags of rice were not imported or smuggled. However, the court feels this is unfair because the settled rule is that he who alleges must prove the same. Besides, at this time when our economy is not good, it would be a [dis]service to the nation to use the strong arm of the law to make things hard or difficult for the businessmen.[4]

The 25,000 bags of rice were ordered returned to respondents upon the posting by them of an P8,000,000.00 bond.

Petitioners BOC and EIIB moved for a reconsideration, but their motion was denied by the RTC in its order dated January 25, 1999.[5] In the same order, the RTC also increased the amount of respondents’ bond to P22,500,000.00. On certiorari to the Court of Appeals, the resolution and order of the RTC were sustained.[6]

Accordingly, on April 26, 1999, upon motion of respondents, the RTC ordered the sheriff to place in respondents’ possession the 25,000 bags of rice.

Meanwhile, in the forfeiture proceedings before the Collector of Customs of Cebu (Cebu Seizure Identification Case No. 17-98), a decision was rendered, the dispositive portion of which reads:

WHEREFORE, by virtue of the authority vested in me by law, it is hereby ordered and decreed that the vessel M/V "Alberto"; the 25,000 bags of rice brand "Snowman"; and the two (2) trucks bearing Plate Nos. GCC 844 and GHZ 388 are all FORFEITED in favor of the government to be disposed of in the manner prescribed by law while the seven (7) trucks bearing Plate Nos. GFX 557; GFX 247; TPV 726; GBY 874; GVE 989; and GDF 548 are RELEASED in favor of their respective owners upon proper identification and compliance with pertinent laws, rules and regulations. Chief

Since this decision involves the release of some of the articles subject matter of herein case which is considered adverse to the government, the same is hereby elevated to the Commissioner of Customs for automatic review pursuant to Republic Act 7651.[7]

The District Collector of Customs found "strong reliable, and convincing evidence" that the 25,000 bags of rice were smuggled. Said evidence consisted of certifications by the Philippine Coast Guard, the Philippine Ports Authority, and the Arrastre Stevedoring Office in Palawan that M/V "Alberto" had never docked in Palawan since November, 1998; a certification by Officer-in-Charge Elenita Ganelo of the National Food Authority (NFA) Palawan that her signature in NFA Grains Permit Control No. 00986, attesting that the 25,000 bags of rice originated from Palawan, was forged; and the result of the laboratory analysis of a sample of the subject rice by the International Rice Research Institute (IRRI) stating that the sample "does not compare with any of our IRRI released varieties."

Respondent Montelibano did not take part in the proceedings before the District Collector of Customs despite due notice sent to his counsel because he refused to recognize the validity of the forfeiture proceedings.[8]

On April 30, 1999, petitioners filed the present petition for review on certiorari of the decision of the Court of Appeals, dated April 15, 1999, upholding the resolution of the RTC denying petitioners’ motions to dismiss. They contend that:

I. SINCE THE REGIONAL TRIAL COURT OF CEBU CITY DOES NOT HAVE JURISDICTION OVER THE SUBJECT MATTER OF THE INSTANT CONTROVERSY, AND THE BUREAU OF CUSTOMS HAD ALREADY EXERCISED EXCLUSIVE ORIGINAL JURISDICTION OVER THE SAME, THE COURT OF APPEALS SERIOUSLY ERRED IN SUSTAINING THE EXERCISE BY THE TRIAL JUDGE OF JURISDICTION OVER THE CASE BELOW AND IN AFFIRMING THE TRIAL JUDGE’S RESOLUTION DATED JANUARY 11, 1999 AND ORDER DATED JANUARY 25, 1999 IN CIVIL CASE NO. CEB-23077. Esmsc

II. SINCE RESPONDENTS HAVE NOT EXHAUSTED ALL THE ADMINISTRATIVE REMEDIES PROVIDED FOR BY LAW, THE COURT OF APPEALS SERIOUSLY ERRED IN UPHOLDING THE TRIAL JUDGE’S DENIALS OF PETITIONERS’ SEPARATE MOTIONS TO DISMISS AND MOTIONS FOR RECONSIDERATION.[9]

In Jao v. Court of Appeals,[10] this Court, reiterating its ruling in a long line of cases, said:

There is no question that Regional Trial Courts are devoid of any competence to pass upon the validity or regularity of seizure and forfeiture proceedings conducted by the Bureau of Customs and to enjoin or otherwise interfere with these proceedings. The Collector of Customs sitting in seizure and forfeiture proceedings has exclusive jurisdiction to hear and determine all questions touching on the seizure and forfeiture of dutiable goods. The Regional Trial Courts are precluded from assuming cognizance over such matters even through petitions of certiorari, prohibition or mandamus.

It is likewise well-settled that the provisions of the Tariff and Customs Code and that of Republic Act No. 1125, as amended, otherwise known as "An Act Creating the Court of Tax Appeals," specify the proper fora and procedure for the ventilation of any legal objections or issues raised concerning these proceedings. Thus, actions of the Collector of Customs are appealable to the Commissioner of Customs, whose decision, in turn, is subject to the exclusive appellate jurisdiction of the Court of Tax Appeals and from there to the Court of Appeals.

The rule that Regional Trial Courts have no review powers over such proceedings is anchored upon the policy of placing no unnecessary hindrance on the government’s drive, not only to prevent smuggling and other frauds upon Customs, but more importantly, to render effective and efficient the collection of import and export duties due the State, which enables the government to carry out the functions it has been instituted to perform.

Even if the seizure by the Collector of Customs were illegal, which has yet to be proven, we have said that such act does not deprive the Bureau of Customs of jurisdiction thereon. Esmmis

Respondents cite the statement of the Court of Appeals that regular courts still retain jurisdiction "where, as in this case, for lack of probable cause, there is serious doubt as to the propriety of placing the articles under Customs jurisdiction through seizure/forfeiture proceedings."[11] They overlook the fact, however, that under the law, the question of whether probable cause exists for the seizure of the subject sacks of rice is not for the Regional Trial Court to determine. The customs authorities do not have to prove to the satisfaction of the court that the articles on board a vessel were imported from abroad or are intended to be shipped abroad before they may exercise the power to effect customs’ searches, seizures, or arrests provided by law and continue with the administrative hearings.[12] As the Court held in Ponce Enrile v. Vinuya:[13]

The governmental agency concerned, the Bureau of Customs, is vested with exclusive authority. Even if it be assumed that in the exercise of such exclusive competence a taint of illegality may be correctly imputed, the most that can be said is that under certain circumstances the grave abuse of discretion conferred may oust it of such jurisdiction. It does not mean however that correspondingly a court of first instance is vested with competence when clearly in the light of the above decisions the law has not seen fit to do so. The proceeding before the Collector of Customs is not final. An appeal lies to the Commissioner of Customs and thereafter to the Court of Tax Appeals. It may even reach this Court through the appropriate petition for review. The proper ventilation of the legal issues raised is thus indicated. Certainly a court of first instance is not therein included. It is devoid of jurisdiction.

It is noteworthy that because of the indiscriminate issuance of writs of injunction, the Supreme Court issued on June 25, 1999 Administrative Circular No. 07-99 to all judges of lower courts entitled re: exercise of utmost caution, prudence, and judiciousness in issuance of temporary restraining orders and writs of preliminary injunction. The circular states in part:

Finally, judges should never forget what the Court categorically declared in Mison v. Natividad (213 SCRA 734, 742 [1992]) that "[b]y express provision of law, amply supported by well-settled jurisprudence, the Collector of Customs has exclusive jurisdiction over seizure and forfeiture proceedings, and regular courts cannot interfere with his exercise thereof or stifle or put it to naught."

The Office of the Court Administrator shall see to it that this circular is immediately disseminated and shall monitor implementation thereof.

STRICT OBSERVANCE AND COMPLIANCE of this Circular is hereby enjoined.

WHEREFORE, the temporary restraining order issued on May 17, 1999 is hereby made permanent. The decision, dated April 15, 1999, of the Court of Appeals is REVERSED and Civil Case No. CEB-23077 in the Regional Trial Court, Branch 5, Cebu City is DISMISSED. Es-mso

SO ORDERED.

THIRD DIVISION

FELICISIMO RIETA, G.R. No. 147817 Petitioner, - versus - PEOPLE OF THE PHILIPPINES Respondent. August 12, 2004x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- --- -- -- -- -- -- -- x

DECISION PANGANIBAN, J.:

Corpus delicti refers to the fact of the commission of the crime. It may be proven by the credible testimonies of witnesses, not necessarily by physical evidence. In-court identification of the offender is not essential, as long as the identity of the accused is determined with certainty by relevant evidence. In the present case,______________________* On leave.there is no doubt that petitioner was the same person apprehended by the authorities and mentioned in the Information. His possession of the smuggled cigarettes carried the prima facie presumption that he was engaged in smuggling. Having failed to rebut this presumption, he may thus be convicted of the crime charged. The Case Before us is a Petition for Review[1] under Rule 45 of the Rules of Court, seeking to set aside the December 22, 2000 Decision[2] of the Court of Appeals (CA) in CA-GR CR No. 17338. The CA affirmed with modification the February 18, 1994 Consolidated Judgment[3] of the Regional Trial Court (RTC)[4] of Manila (Branch 46) in Criminal Case Nos. CCC-VI-137(79) and CCC-VI-138(79), finding Felicisimo Rieta guilty of smuggling. The assailed CA Decision disposed as follows: “WHEREFORE, the assailed Decision is hereby MODIFIED as follows: (a) The Court AFFIRMS the decision of the trial court finding Felicisimo Rieta, Arturo Rimorin, Pacifico Teruel and Carmelo Manaois GUILTY BEYOND REASONABLE DOUBT of the crime charged. (b) Appellants Ernesto Miaco, Guillermo Ferrer, Fidel Balita, Robartolo Alincastre and Ernesto de Castro are ACQUITTED as recommended by the Solicitor General.”[5]

Reconsideration was denied in the April 16, 2001 CA Resolution,[6] which petitioner also assails. Petitioner and his six co-accused -- Arturo Rimorin, Fidel Balita, Gonzalo Vargas, Robartolo Alincastre, Guillermo Ferrer and Ernesto Miaco -- were charged in an Information, which reads: “That on or about October 15, 1979, in the City of Manila, Philippines, the said accused, conspiring and confederating together and helping one another, with the evident intent to defraud the government of the Republic of the Philippines of the legitimate duties accruing to it from merchandise imported into this country, did then and there [willfully], unlawfully [and] fraudulently import or bring into the Philippines or assist in so doing contrary to law, three hundred five (305) cases of assorted brands of blue seal cigarettes which are foreign articles valued at P513,663.47 including duties and taxes, and/or buy, sell, transport or assist and facilitate the buying, selling and transporting of the above-named foreign articles after importation knowing the same to have been imported contrary to law which was found in the possession of said accused and under their control which articles said accused fully well knew have not been properly declared and that the duties and specific taxes thereon have not been paid to the proper authorities in violation of said Sec. 3601 of the Tariff and Customs Code of the Philippines, as amended by Presidential Decree No. 34, in relation to Sec. 3602 of said Code and Sec. 184 of the National Internal Revenue Code.”[7]

The FactsVersion of the Prosecution (Respondent) The Office of the Solicitor General (OSG)[8] presents the prosecution’s version of the facts as follows: “On October 12, 1979, Col. Panfilo Lacson, the[n] Chief of the Police Intelligence Branch of the Metrocom Intelligence and Security Group (MISG for brevity), received information that certain syndicated groups were engaged in smuggling activities somewhere in Port Area, Manila. It was further revealed that the activities [were being] done at nighttime and the smuggled goods in a delivery panel and delivery truck [were] being escorted by some police and military personnel. He fielded three surveillance stake-out teams the following night along Roxas Boulevard and Bonifacio Drive near Del Pan Bridge, whereby they were to watch out for a cargo truck with Plate No. T-SY-167 bound for Malabon. Nothing came out of it. On the basis of his investigation, [it was discovered that] the truck was registered in the name of Teresita Estacio of Pasay City. “At around 9:00 o’clock in the evening of October 14, 1979, Col. Lacson and his men returned to the same area, with Col. Lacson posting himself at the immediate vicinity of the 2nd COSAC Detachment in Port Area, Manila, because as per information given to him, the said cargo truck will come out from the premises of the 2nd COSAC Detachment. COSAC stands for Constabulary Off-Shore Anti-Crime Battalion. The night watch lasted till the wee hours of the following morning. About 3:00 a.m. an Isuzu panel came out from the place of the 2nd COSAC Detachment. It returned before 4:00 a.m. of [the] same day. “At around 5 minutes before 4:00 o’clock that morning, a green cargo truck with Plate No. T-SY-167 came out from the 2nd COSAC Detachment followed and escorted closely by a light brown Toyota Corona car with Plate No. GR-433 and with 4 men on board. At that time, Lt. Col. Panfilo Lacson had no information whatsoever about the car, so he gave an order by radio to his men to intercept only the cargo truck. The cargo truck was intercepted. Col. Lacson noticed that the Toyota car following the cargo truck suddenly made a sharp U-turn towards the North, unlike the cargo truck [that] was going south. Almost by impulse, Col. Lacson’s car also made a U-turn and gave chase to the speeding Toyota car, which was running between 100 KPH to 120 KPH. Col. Lacson sounded his siren. The chase lasted for less than 5 minutes until said car made a stop along Bonifacio Drive, at the foot of Del Pan Bridge. Col. Lacson and his men searched the car and they found several firearms, particularly: three (3) .45 cal. Pistols and one (1) armalite M-16 rifle. He also discovered that T/Sgt. Ernesto Miaco was the driver of the Toyota car, and his companions inside the car were Sgt. Guillermo Ferrer, Sgt. Fidel Balita and Sgt. Robartolo Alincastre, [all] belonging to the 2nd COSAC Detachment. They were found not to be equipped with mission orders. “When the cargo truck with Plate No. T-SY-167 was searched, 305 cases of blue seal or untaxed cigarettes were found inside. The cargo truck driver known only as ‘Boy’ was able to escape while the other passengers or riders of said truck were apprehended, namely: Police Sgt. Arturo Rimorin of Pasay City Police Force, Pat. Felicisimo Rieta of Kawit Police Force, and Gonzalo Vargas, a civilian. “x x x x x x x x x “Lacson’s men hauled the intercepted vehicles, the arrested men and confiscated goods to Camp Crame, Quezon City. All the 371 cases (305 + 66) of blue seal cigarettes were turned over to the Bureau of Customs. Sgt. Bienvenido Balaba executed an Affidavit of Arrest together with Arnel Acuba. The Booking and Information Sheet of Ernesto de Castro showed that he was arrested by the MISG after delivering assorted blue seal cigarettes at 185 Sanciangco St., Tonsuya, Malabon.”[9]

Version of the Defense (Petitioner)

Petitioner, on the other hand, denied any knowledge of the alleged smuggling of the blue-seal cigarettes. He sets forth his version of the facts as follows: “Petitioner Rieta testified that he was a policeman assigned at Kawit Cavite. In the early morning of October 15, 1979, he was in Manila together with Boy. He met Boy in 1978 when the latter figured in a vehicular accident in Kawit, Cavite. x x x After a week, Boy visited him at the Kawit Police Station and thereafter, met him four to five times. He learned that Boy was a businessman hauling slippers, fish and vegetables from Divisoria. For several times, he had accompanied Boy on his business trips when [the latter] hauled fish, vegetables and slippers from Divisoria to Cavite. He was requested by Boy to accompany him on his various trips because there were times when policemen on patrol were demanding money from [the latter]. At other times, other policemen accompanied Boy aside from him, on his trips. “In the early morning of October 15, 1979 he met Boy in front of the Kawit Town Hall. He learned that Boy will haul household appliances from Divisoria. They boarded a jeep driven by Boy and they proceeded to Cartimar, Pasay City. At Cartimar, Boy left him at a gasoline station, and told him to standby because Boy will get the cargo truck they will use. When Boy returned, he had companions, who were introduced to him as Gonzalo Vargas and Sgt. Rimorin, the petitioner’s co-accused in Criminal Case No. CC-VI-138 (79). From Cartimar, the four (4) of them proceeded to Divisoria and they passed under the Del Pan Bridge. While passing therein, he told Boy that he was hungry, so that when they passed by a small restaurant, he alighted and Sgt. Rimorin followed. Boy told them that he and Gonzalo will proceed to the Port Area and will be back. After thirty to forty five minutes, Boy and Gonzalo returned, and he and Sgt. Rimorin boarded the truck and proceeded to Roxas Boulevard. While they were along Roxas Boulevard near the Daily Express Building, two (2) vehicles intercepted them and ordered them to pull-over. The passengers of the said vehicles introduced themselves as Metrocom soldiers, and ordered them to alight and to raise their hands while poking guns at them. They were ordered to l[ie down] flat on their belly on the pavement and were bodily frisked and searched. The Metrocom soldiers did not find anything from their bodies. Thereafter, they (Rieta, Rimorin and Gonzalo) were ordered by the Metrocom soldiers to transfer to a jeep. While they were aboard the jeep, he overheard from the Metrocom soldiers that their driver was able to escape. Likewise, they were also informed by the Metrocom soldiers that the cargo truck was loaded with blue seal cigarettes. The cargo truck was not opened in their presence, nor were the contents thereof shown to them upon their apprehension. From the time he boarded the cargo truck in Cartimar until he and Sgt. Rimorin alighted to take their snacks, up to the time they were apprehended by the Metrocom soldiers, he had not seen a pack of blue cigarette in the cargo truck. He did not notice whether the Metrocom soldiers opened the cargo truck. At Camp Crame, he was investigated without the benefit of counsel, but, nonetheless, he executed and signed a statement because as far as he was concerned he has done nothing wrong. He was detained at Bicutan for more than a year. “In the early morning of October 15, 1979 he was not carrying any firearm because he has no mission order to do so, and besides Manila was not his jurisdiction. He was suspended from the service, but was reinstated in January 1981. After he was released from Bicutan, he looked for Boy so that he could clear the matter, but he [did not find] Boy anymore. “In corroboration with the testimony of petitioner Rieta, accused Rimorin, a policeman assigned at Pasay City, testified that the first time he met Boy was in 1978 in the wake and internment of the Late Police Officer Ricardo Escobal. Thereafter, Boy dropped by on several occasions at the Pasay Police Station to request for assistance. Prior to October 15, 1979, Boy again dropped by at the police station and asked him if he had an appointment on the next day. He told Boy that he had no appointment, and the latter requested to accompany him to Sta. Maria, Bulacan to get some rice. Prior thereto, in one of their casual conversations, he learned that Boy was a businessman engaged in hauling various merchandise. He agreed to the request of Boy to accompany him to Sta. Maria, Bulacan. At Sta. Maria, Bulacan, they proceeded to a warehouse containing bags of rice, and they hauled several bags into a truck, and thereafter, proceed[ed] to Quezon City. As compensation Boy gave him a sack of rice. The said transaction was followed by another on October 15, 1979. In the afternoon of October 14, 1979, Boy again dropped by at the police station and requested him to accompany him to haul household fixtures. They usually haul vegetables and rice early in the morning to avoid the traffic and that was the reason why they met in the early morning of October 15, 1979. He told [Boy] that he will see if he will have [the] time, but just the same they made arrangements that they will see each other at Cartimar, Pasay City not later than 2:30 a.m. in the early morning of October 15, 1979. At the appointed time and place, he met Boy with a companion, who was introduced to him as Gonzalo Vargas, his co-accused in the instant case. Thereafter, they proceeded to a gasoline station nearby. At the gasoline station, at the corner of Taylo and Taft Avenue, near Cartimar, they picked up another person who was later on introduced to him as Felicisimo Rieta. Then the four of them (Boy, Gonzalo, Rieta and Rimorin) boarded the cargo truck and they proceeded to Divisoria. It was Boy who drove the cargo truck, while petitioner was seated next to Boy while accused Rimorin and Gonzalo to his right. While enroute to Divisoria, along Roxas Boulevard before reaching Del Pan Bridge, Boy turned right under the bridge. He commented that it was not the route to Divisoria, and Boy answered ‘meron lang ikakarga dito’. On the other hand, Rieta told Boy that he was hungry, and thus, Boy pulled-over at a carinderia at Del Pan Bridge near Delgado Bros. When Rieta alighted he followed, while Boy and Gonzalo proceeded. After less than an hour, Boy and Gonzalo returned. They then proceeded towards Roxas Boulevard, Bonifacio Drive, and Boy drove straight at the corner of Aduana to Roxas Boulevard. When he noticed that the truck was not bound for Divisoria as earlier informed, he asked Boy why they were not taking the route going to Divisoria. Boy replied ‘bukas na lang wala ng espasyo’. Immediately, they were intercepted by two vehicles and one of the occupants thereof ordered the driver to pull over. The driver pulled over, and they were ordered to raise their hands and to lay flat on their belly on the pavement right in front of the truck, and they were bodily frisked but they found nothing. He asked the Metrocom soldiers what was it all about, but the Metrocom soldiers were shouting ‘asan ang blue seal’. Then they were ordered to board a jeep owned by the Metrocom soldiers, and they were brought to Camp Crame. Before they left the area, he did not see the Metrocom soldiers open the cargo truck. He was brought to the MISG at Camp Crame. When they arrived at Camp Crame, the soldiers thereat were clapping their hands, thus he asked ‘ano ba talaga ito’ and he got an answer from Barrameda, ‘yun ang dahilan kung bakit ka makukulong’, pointing to a truck. When he saw the truck, it was not the same truck they boarded in the early morning of October 15, 1979. The truck they boarded was galvanized iron pale sheet covered with canvass while the one at Camp Crame was color red and not covered. He entertained the idea that they were being framed-up. Two days after, he was interrogated and the alleged blue seal cigarettes were shown to him, and he was informed by the investigator that the same blue seal cigarettes were the contents of the cargo truck. When the alleged blue seal cigarettes were taken out of the cargo truck, he was not asked to be present. He asked for the whereabouts of Boy, but he was informed that the latter escaped. The more he believed that there was something fishy or wrong in their apprehension. It was very [conspicuous] that the driver was able to escape because at the time they were apprehended they were the only people at Bonifacio Drive, and thus the possibility of escape was very remote, considering that they were unarmed and the Metrocom soldiers were all fully armed. In both cases at bar, there were about three Pasay policemen who were apprehended. He was detained at Camp Bagong Diwa for more than a year. He knew nothing about the charge against him. When he was at Camp Crame he tried getting in touch with a lawyer and his family, but the MISG did not let him use the telephone.”[10] Ruling of the Court of Appeals Affirming the RTC, the CA noted that while petitioner and his co-accused had mainly raised questions of fact, they had nonetheless failed to point out specific errors committed by the trial court in upholding the credibility of the prosecution’s witnesses. The defense of denial proffered by petitioner was considered weak and incapable of overturning the overwhelming testimonial and documentary evidence of respondent. Further, the appellate court ruled that the non-presentation in court of the seized blue-seal cigarettes was not fatal to respondent’s cause, since the crime had sufficiently been established by other competent evidence. The CA rejected the belated claim of petitioner that his arrest was irregular. It ruled that the alleged defect could not be raised for the first time on appeal, especially in the light of his voluntary submission to and participation in the proceedings before the trial court. The appellate court, however, found no sufficient evidence against the other co-accused who, unlike petitioner, had not been found to be in possession of blue-seal cigarettes. Hence, this Petition.[11] Issues In his Memorandum, petitioner submits the following issues for the Court’s consideration:

“1. The respondents trial and appellate courts committed grave abuse of discretion tantamount to lack and/or excess of jurisdiction when [they] convicted herein petitioner notwithstanding the prosecution’s failure to prove the guilt of the petitioner beyond reasonable doubt. “2. The evidence obtained against the accused is inadmissible in evidence because petitioner and his co-accused were arrested without a warrant but by virtue of an arrest and seizure order (ASSO) which was subsequently declared illegal and invalid by this Honorable Supreme Court.”[12]

The Court’s Ruling The Petition has no merit.

First Issue:Sufficiency of Evidence

Petitioner contends that the existence of the untaxed blue seal cigarettes was not established, because the prosecution had not presented them as evidence. He further argues that there was no crime committed, as the corpus delicti was never proven during the trial.

Corpus Delicti Established by Other Evidence We do not agree. Corpus delicti refers to the specific injury or loss sustained.[13] It is the fact of the commission of the crime[14] that may be proved by the testimony of eyewitnesses.[15] In its legal sense, corpus delicti does not necessarily refer to the body of the person murdered,[16] to the firearms in the crime of homicide with the use of unlicensed firearms,[17] to the ransom money in the crime of kidnapping for ransom,[18] or -- in the present case -- to the seized contraband cigarettes.[19] In Rimorin v. People,[20] the petitioner therein similarly equated the actual physical evidence -- 305 cases of blue-seal cigarettes -- with the corpus delicti. The appellate court allegedly erred in not acquitting him on reasonable doubt arising from the non-presentation in court of the confiscated contraband cigarettes. Holding that corpus delicti could be established by circumstantial evidence, the Court debunked his argument thus: “Since the corpus delicti is the fact of the commission of the crime, this Court has ruled that even a single witness’ uncorroborated testimony, if credible, may suffice to prove it and warrant a conviction therefor. Corpus delicti may even be established by circumstantial evidence. “Both the RTC and the CA ruled that the corpus delicti had been competently established by respondent’s evidence, which consisted of the testimonies of credible witnesses and the Custody Receipt issued by the Bureau of Customs for the confiscated goods. “Col. Panfilo Lacson’s testimony on the apprehension of petitioner and on the seizure of the blue seal cigarettes was clear and straightforward. He categorically testified as follows:

Q Let us go back to the truck after you apprehended the COSAC soldiers on board the [C]orona car, what did you do thereafter?A We took them to the place where the cargo truck was intercepted, Sir.

Q What did you notice thereat?A Inside the truck were hundreds of cases of blue seal cigarettes, and I also found out that my men were able to apprehend the occupants of the cargo truck although they reported to me that the driver managed to make good escape, Sir.

Q Now you stated that a search was made on the truck and you found how many cases of blue seal cigarettes?A Three hundred five (305) cases, Sir.

Q Blue seal cigarettes?A Yes, Sir.

Q What do you mean by blue seal cigarettes?A Blue seal cigarettes are untaxed cigarettes, Sir.

Q Did you find out how many were there on board the truck which was intercepted by your men per your order?A Yes, Sir, [there] were three.

Q Who?A They were P/Sgt. Arturo Rimorin, Sr.

Q P/Sgt. Of what department?A Of Pasay City Police Force, Sir, and Pat. Felicisimo Rieta.

Q Of that police department?A Of Kawit, Cavite Police Force, and Gonzalo Vargas, Sir.

Q Who is this Gonzalo Vargas?A Civilian Sir.

x x x x x x x x x

Fiscal Macaraeg: I am showing to you a Custody Receipt dated October 15, 1979, which states: Received from Lt. Col. Rolando N. Abadilla, AC of S, M2/CC, MISG. PC METROCOM

(Thru S/Sgt. Rodolfo Bucao, PC) THREE HUNDRED SEVENTY ONE (371) cases of assorted brands of ‘Blue Seal’ Cigarettes, which were intercepted and confiscated by elements of the MISG, PC METROCOM on or about 0400 15 October 79 along Bonifacio Drive, Manila, which for [purposes] of identification we respectfully request that it be marked [on] evidence as Exhibit ‘A’.

COURT: Mark it Exhibit ‘A’.

Fiscal Macaraeg:Q Will you please do examine Exhibit ‘A’ and tell us whether this is the same receipt?A This is the same receipt, Sir.

Q By the way, were photographs taken of the car as well as the vehicle involved in this case, together with the blue seal cigarettes that were confiscated?A Yes, Sir.

Q Do you have copies of these photographs?A The copies are with our evidence custodian, Sir.

Q Can you bring those pictures if required next time?A Yes, Sir.

“So, too, did Gregorio Abrigo –customs warehouse storekeeper of the Bureau –categorically testify that the MISG had turned over to him the seized blue seal cigarettes, for which he issued a Custody Receipt dated October 15, 1979.

“We find no reason to depart from the oft repeated doctrine of giving credence to the narration of prosecution witnesses, especially when they are public officers who are presumed to have performed their duties in a regular manner.”[21]

Petitioner argues that the receipt issued by Abrigo, a customs official, was beset with doubt because: 1) it did not state specifically that the blue-seal cigarettes identified therein had been confiscated from petitioner and turned over to Abrigo by Colonel Lacson and/or his men; and 2) it mentioned 371 (instead of 305) cases of confiscated blue-seal cigarettes. We note, however, that Colonel Lacson himself identified the Custody Receipt as the same one issued for the 305 cases of cigarettes found in the cargo truck, in which petitioner and his co-accused rode, and from which the 66 cases of cigarettes -- subject of Criminal Case No. CCC-VI-138(79) -- were confiscated in Malabon, Metro Manila.[22] This fact (305 plus 66) explains why 371 cases were indicated therein. At any rate, petitioner argues on minor discrepancies that do not affect the integrity of the Receipt, issued in due course by a customs official who was duty-bound to put the seized contraband cigarettes in safekeeping. The existence of the 305 cases of blue-seal cigarettes found in the possession of petitioner and his co-accused was duly proven by the testimonies of the prosecution witnesses -- Lacson and Abrigo. They had testified in compliance with their duty as enforcers of the law. Their testimonies were rightly entitled to full faith and credit, especially because there was no showing of any improper motive[23] on their part to testify falsely against petitioner. Further, the Court accords great respect to the factual conclusions drawn by the trial court, especially when affirmed by the appellate court as in this case.[24] Absurd is the claim of petitioner that, because Colonel Lacson was not the officer who had actually intercepted the cargo truck in which the former rode, the latter’s testimony was therefore hearsay. The testimony of the colonel on his participation in the apprehension of the truck sufficiently rebutted this contention.

Lacson testified that he had personally received information regarding the smuggling activities being conducted by a syndicated group in that place. He was also informed that smuggled items would be transported from the 2nd COSAC Detachment in the Port Area to Malabon by a cargo truck with Plate No. T-SY-167. During the stakeout surveillance on the night of October 14, 1979, he saw -- from his post within the vicinity of the 2nd COSAC Detachment -- the identified cargo truck coming out of the Port Area. While trailing behind, he radioed his men posted along Roxas Boulevard to stop the truck. Later in court, he described how his men had actually intercepted it.[25] Petitioner insists that Colonel Lacson, who had given chase to a Toyota car and was not among the officers who had intercepted the truck, could not have seen him as one of the passengers of the latter vehicle. Notably, however, the chase of the Toyota car had lasted no more than 5 minutes, and the colonel’s team immediately returned to the subject truck after the chase.[26] Lacson, however, categorically said that he had seen 305 cases of blue-seal cigarettes inside the cargo vehicle, and that petitioner was one of its passengers. It should be borne in mind that Colonel Lacson -- as head of that particular surveillance operation -- had full knowledge, control and supervision of the whole process. He had organized the surveillance teams and given orders to his men prior to the apprehension of the vehicles suspected of carrying smuggled items. Furthermore, he was present during the surveillance operations until the apprehension of the cargo truck. Thus, he was clearly competent to testify on the matter. The denial by petitioner that he was among the occupants of the truck is highly self-serving and riddled with inconsistencies. He had been directly identified as one of its passengers. Besides, he himself admitted that he had been on board the vehicle when it was intercepted, and that there were no other person in the area. Courtroom Identification Unnecessary

Next, petitioner belabors the failure of the prosecution to ask Colonel Lacson to identify him in open court. However, the colonel’s positive and categorical testimony pointing to him as one of the passengers of the cargo truck, as well as petitioner’s own admission of his presence therein, dispelled the need for a courtroom identification. In People v. Quezada, the Court said: “x x x. While positive identification by a witness is required by the law to convict an accused, it need not always be by means of a physical courtroom identification. As the Court held in People v. Paglinawan: ‘x x x. Although it is routine procedure for witnesses to point out the accused in open court by way of identification, the fact that the witness x x x did not do so in this case was because the public prosecutor failed to ask her to point out appellant, hence such omission does not in any way affect or diminish the truth or weight of her testimony.’ “In-court identification of the offender is essential only when there is a question or doubt on whether the one alleged to have committed the crime is the same person who is charged in the information and subject of the trial.”[27]

In the present case, there is no doubt that petitioner was a passenger of the truck, that he was apprehended by the authorities, and that he was the same individual charged under the Information in Criminal Case No. CCC-VI-137(79).

Prima Facie Proof of Nonpayment of Taxes Sufficient

There is no merit, either, in the claim of petitioner that the prosecution failed to prove the nonpayment of the taxes and duties on the confiscated cigarettes. There is an exception to the general rule requiring the prosecution to prove a criminal charge predicated on a negative allegation, or a negative averment constituting an essential element of a crime. In People v. Julian-Fernandez, we held: “Where the negative of an issue does not permit of direct proof, or where the facts are more immediately within the knowledge of the accused, the onus probandi rests upon him. Stated otherwise, it is not incumbent upon the prosecution to adduce positive evidence to support a negative averment the truth of which is fairly indicated by established circumstances and which, if untrue, could readily be disproved by the production of documents or other evidence within the defendant’s knowledge or control. For example, where a charge is made that a defendant carried on a certain business without a license x x x, the fact that he has a license is a matter which is peculiar[ly] within his knowledge and he must establish that fact or suffer conviction.”[28] (Emphasis supplied)

The truth of the negative averment that the duties and specific taxes on the cigarettes were not paid to the proper authorities is fairly indicated by the following circumstances that have been established: (1) the cargo truck, which carried the contraband cigarettes and some passengers including petitioner, immediately came from the 2nd COSAC Detachment; (2) the truck was intercepted at the unholy hour of 4:00 a.m.; (3) it fitted the undisclosed informer’s earlier description of it as one that was carrying contraband; and (4) the driver ran away. Hence, it was up to petitioner to disprove these damning circumstances, simply by presenting the receipts showing payment of the taxes. But he did not do so; all that he could offer was his bare and self-serving denial. Knowledge of the Illegal Nature of Goods The fact that 305 cases of blue-seal cigarettes were found in the cargo truck, in which petitioner and his co-accused were riding, was properly established. Nonetheless, he insists that his presence there was not enough to convict him of smuggling, because the element of illegal possession had not been duly proved. He adds that he had no knowledge that untaxed cigarettes were in the truck. Petitioner’s contention is untenable. Persons found to be in possession of smuggled items are presumed to be engaged in smuggling, pursuant to the last paragraph of Section 3601 of the Tariff and Customs Code.[29] The burden of proof is thus shifted to them. To rebut this presumption, it is not enough for petitioner to claim good faith and lack of knowledge of the unlawful source of the cigarettes. He should have presented evidence to support his claim and to convince the court of his non-complicity. In the case adverted to earlier, Rimorin v. People, we held thus: “In his discussion of a similarly worded provision of Republic Act No. 455, a criminal law authority explained thus: ‘In order that a person may be deemed guilty of smuggling or illegal importation under the foregoing statute three requisites must concur: (1) that the merchandise must have been fraudulently or knowingly imported contrary to law; (2) that the defendant, if he is not the importer himself, must have received, concealed, bought, sold or in any manner facilitated the transportation, concealment or sale of the merchandise; and (3) that the defendant must be shown to have knowledge that the merchandise had been illegally imported. If the defendant, however, is shown to have had possession of the illegally imported merchandise, without satisfactory explanation, such possession shall be deemed sufficient to authorize conviction.’”[30] (Emphasis supplied)In the present case, the explanation given by petitioner was found to be unacceptable and incredible by both the RTC and the CA, which said: “Now on the explanations of Police Sgt. Rimorin of Pasay City Police Force and Pat. Rieta of Kawit Police Force, riders in the loaded cargo truck driven by ‘Boy.’ Their claim that they did not have any knowledge about the cargo of blue seal cigarettes is not given credence by the court. They tried to show lack of knowledge by claiming that along the way, ‘Boy’ and Gonzalo Vargas left them behind at a certain point for snacks and picked them up later after the cargo had been loaded. The Court cannot see its way through how two policemen, joining ‘Boy’ in the dead of the night, explicitly to give him and his goods some protection, which service would be paid, yet would not know what they are out to protect. And neither could the Court see reason in ‘Boy’s’ leaving them behind when he was going to pick up and load the blue seal cigarettes. ‘Boy’ knew the risks. He wanted them for protection, so why will he discard them? How so unnatural and so contrary to reason.”[31]

Being contrary to human experience, his version of the facts is too pat and stereotyped to be accepted at face value. Evidence, to be believed, not only must proceed from the mouth of a credible witness; it must also be credible in itself, as when it conforms to common experience and observation of humankind.[32] The absence of any suspicious reaction on the part of petitioner was not in accordance with human nature. The involvement or participation he and his co-accused had in the smuggling of the goods was confirmed by their lack of proper and reasonable justification for the fact that they had been found inside the cargo truck, seated in front, when it was intercepted by the authorities. Despite his protestation, it is obvious that petitioner was aware of the strange nature of the transaction, and that he was willing to do his part in furtherance thereof. The evidence presented by the prosecution established his work of guarding and escorting the contraband to facilitate its transportation from the Port Area to Malabon, an act punishable under Section 3601 of the Tax Code.

Second Issue:Validity of the Search and Seizure Petitioner contends that his arrest by virtue of Arrest Search and Seizure Order (ASSO) No. 4754 was invalid, as the law upon which it was predicated -- General Order No. 60, issued by then President Ferdinand E. Marcos -- was subsequently declared by the Court, in Tañada v. Tuvera,[33] to have no force and effect. Thus, he asserts, any evidence obtained pursuant thereto is inadmissible in evidence.We do not agree. In Tañada, the Court addressed the possible effects of its declaration of the invalidity of various presidential issuances. Discussing therein how such a declaration might affect acts done on a presumption of their validity, the Court said: “x x x. In similar situations in the past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter Bank to wit: ‘The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. x x x It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to [the determination of its invalidity], is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be

erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects –with respect to particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.’ x x x x x x x x x “Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official Gazette is ‘an operative fact which may have consequences which cannot be justly ignored. The past cannot always be erased by a new judicial declaration x x x that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.’”[34] The Chicot doctrine cited in Tañada advocates that, prior to the nullification of a statute, there is an imperative necessity of taking into account its actual existence as an operative fact negating the acceptance of “a principle of absolute retroactive invalidity.” Whatever was done while the legislative or the executive act was in operation should be duly recognized and presumed to be valid in all respects.[35] The ASSO that was issued in 1979 under General Order No. 60 -- long before our Decision in Tañada and the arrest of petitioner -- is an operative fact that can no longer be disturbed or simply ignored. Furthermore, the search and seizure of goods, suspected to have been introduced into the country in violation of customs laws, is one of the seven doctrinally accepted exceptions[36] to the constitutional provision. Such provision mandates that no search or seizure shall be made except by virtue of a warrant issued by a judge who has personally determined the existence of probable cause.[37] Under the Tariff and Customs Code, a search, seizure and arrest may be made even without a warrant for purposes of enforcing customs and tariff laws. Without mention of the need to priorly obtain a judicial warrant, the Code specifically allows police authorities to enter, pass through or search any land, enclosure, warehouse, store or building that is not a dwelling house; and also to inspect, search and examine any vessel or aircraft and any trunk, package, box or envelope or any person on board; or to stop and search and examine any vehicle, beast or person suspected of holding or conveying any dutiable or prohibited article introduced into the Philippines contrary to law.[38] WHEREFORE, the Petition is DENIED, and the assailed Decision AFFIRMED. Costs against petitioner. SO ORDERED.

THIRD DIVISION

[G.R. No. 146706.  July 15, 2005]

TOMAS SALVADOR, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, respondent.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

At bar is the petition for review on certiorari[1] filed by Tomas Salvador assailing the Decision[2] dated August 9, 2000 and Resolution dated January 9, 2001 of the Court of Appeals in CA-G. R. CR No. 20186.

On the wee hours of June 4, 1994, Aurelio Mandin, Danilo Santos and petitioner Tomas Salvador, then aircraft mechanics employed by the Philippine Air Lines (PAL) and assigned at the Ninoy Aquino International Airport (NAIA) and Manila Domestic Airport, were nabbed by intelligence operatives of the Philippine Air Force (PAF) for possessing thirteen (13) packets containing assorted smuggled watches and jewelries valued at more than half a million pesos.

Consequently, they were charged before the Regional Trial Court (RTC), Branch 117, Pasay City with violation of Section 3601 of the Tariff and Customs Code, docketed as Criminal Case No. 94-5843.  The Information reads:

“That on or about the 4th day of June 1994 at the NAIA/Domestic Airport vicinity, Pasay City and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually helping one another, did then and there, willfully, unlawfully, and felonious assist in the concealment and unlawful importation of the following items:

198 pieces of means watches……………   P187,110.0076 pieces of men’s diving watches………          8,640.0032 pieces of ladies watches………………        11,600.001600 grams of assorted jewelry………….      322,000.00

with a total market value of P537,500.00 FIVE HUNDRED THIRTY-SEVEN THOUSAND THREEE HUNDRED FIFTY PESOS, more or less, Philippine Currency, without authority or permit from proper authorities.

CONTRARY TO LAW.”[3]

When arraigned, all the accused, duly assisted by counsel, pleaded not guilty to the charge.  Trial on the merits then ensued.

The prosecution established the following facts:

On June 3, 1994, a Special Mission Group from the PAF Special Operations Squadron, headed by Major Gerardo B. Pagcaliuangan and composed of Sgts. Rodolfo A. Teves, Geronimo G. Escarola, Virgilio M. Sindac and Edwin B. Ople, conducted routine surveillance operations at the Manila Domestic Airport to check on reports of alleged drug trafficking and smuggling being facilitated by certain PAL personnel.

Major Pagcaliuangan then ordered Sgts. Teves and Ople to keep close watch on the second airplane parked inside the Domestic Airport terminal.  This aircraft is an Airbus 300 with tail number RPC-3001.  It arrived at the NAIA at 10:25 in the evening of June 3, 1994 from Hong Kong as Flight No. PR-311.  After its passengers disembarked and its cargo unloaded, it was towed by the PAL ground crew and parked at the ramp area of the Domestic Airport terminal.

At around 11:30 that same evening, Sgt. Teves reported over his radio that three (3) persons had boarded the Airbus 300.   The team did not move, but continued its surveillance.

At 12:15 a.m. the following day (June 4), Sgt. Teves reported that the three (3) persons who earlier boarded the Airbus 300 had disembarked with their abdominal areas bulging.  They then boarded an airplane tow truck with its lights off.

The PAF surveillance team promptly boarded their vehicles and followed the aircraft tow truck.  At the Lima Gate of the Domestic Airport, the team blocked and stopped the tow truck.  Sgt. Teves then got off, identified himself and asked the four (4) persons on board to alight.  They were later identified as Tomas Salvador, petitioner, Aurelio Mandin, Danilo Santos and Napoleon Clamor, the driver of the tow truck.

Sgt. Teves approached Aurelio Mandin.  He noticed that Mandin’s uniform was partly open, showing a girdle.  While Sgt. Teves was reaching for the girdle, a package wrapped in brown packaging tape fell.  Suspecting that the package contained smuggled items, Sgt. Teves yelled to his teammates, “Positive!” Thereupon, the rest of the team surrounded petitioner and his two co-accused who surrendered without a fight.  The team searched their bodies and found that the three were wearing girdles beneath their uniforms, all containing packets wrapped in packaging tape. Mandin yielded five (5) packets, while petitioner and Santos had four (4) each.  The team confiscated the packets and brought all the accused to the PAFSECOM Office.

At around 8:00 o’clock the following morning, Emilen Balatbat, an examiner of the Bureau of Customs, arrived at the PAFSECOM Office. She opened one of the packets and on seeing that it contained dutiable goods, she proceeded to weigh the thirteen (13) packets seized from the accused.   She then prepared an inventory of the items seized and listed the weight of the packets. [4] Thereafter, she brought the seized packets to the In-Board Section, Bureau of Customs, Airport Office where their contents were identified and appraised.  The Bureau of Customs found 248 pieces of assorted watches and fourteen karat (14K) gold jewelries valued as follows:

QTY.UNIT DESCRIPTION APPRAISED VALUE

10pcs. Half-bangles with Charms Tricolors 122.8 gms.

6pcs. Bracelet with Charms Tricolors 52.4 gms.

8pcs. Bracelet (Tricolor) 64.2 gms.

5pcs. Bangles (3 pcs./set) Tricolor 155.3 gms.

  

Baby’s Bangles with charm 18.2 gms.

  

L-Bangles with charm 68.5 gms.

  

L-Bangles 112.3 gms.

  

L-Creolla Earrings 901.56 gms.

   TOTAL GRAMS

1,495 x P200.00/gm.+P 299,052.00

   Assorted Watches  

204pcs. Citizen M watches with black dial with gold metal

bracelet                             (-1) x $25 

$2,600.00

24pcs. Seiko 5 Ladies watches with blue dial with white metal bracelet (-1)

x $25    

600.00

16pcs. Seiko Divers Watch Mens- Black dial with rubberized bracelet (-1)

x $50 

800.00

4pcs. Seiko 5 Ladies watches with yellow dial with gold metal bracelet

(1) x $25 

100.00

4pcs. Citizen L-watches with white dial (4) x $20 80.00

62pcs. Seiko 5 Men’s watches with yellow dial with gold metal bracelet

(1) x $25 

1,550.00

34pcs. Seiko 5 Men’s watches with black dial with gold metal bracelet (1)

x $25 

850.00____248 pcs.  

 

$6,580.00

The Investigating State Prosecutor conducted an inquest and thereafter recommended that petitioner and his co-accused be charged with violating Section 3601 of the Tariff and Customs Code.  Accordingly, the Information, mentioned earlier, was filed with the RTC.

After the prosecution rested its case, the accused filed a Joint Demurrer to Evidence.

In an Order dated October 12, 1995, the trial court denied the demurrer and directed the accused to present their evidence.

All the accused denied committing the offense charged, claiming they were framed-up by the military.

Danilo Santos testified that on the night of June 3, 1994, he was assigned to the Airbus 300 with tail No. RPC-3001, joining three junior mechanics who were then working on said aircraft.  He was conducting a visual check of the plane when a tow truck arrived on its way to Nichols Airfield.  He told one of the junior mechanics that he would take a break and be back in an hour.   He then boarded the tow truck.  When it was near the Lima Gate, a jeep with four (4) men in civilian attire aboard approached him. The four pointed their firearms at him and, after searching him for drugs, he was frisked but nothing was found.  He was nonetheless brought by the men to the PAFSECOM Office, then to Villamor Airbase Hospital for a medical examination and alcohol test.  Thereafter, he was brought back to the PAFSECOM Office.  There, another military man arrived and brought out a box containing packets.  Then he and his companions were told to put on their mechanic’s uniforms and to wear girdles.  The packets were placed on their bodies, after which they were photographed.  He further testified that he was asked to sign a certain paper but was not allowed to read it thoroughly.  During the investigation, he was not apprised of his rights nor assisted by a counsel.

Petitioner Tomas Salvador likewise denied any knowledge of the questioned items seized from him.  He testified that during the incident in question, he only boarded the tow truck to take a break at the PAL canteen.  He saw a box on the tow truck but was not aware of its contents.  After his arrest, he was made to sign a document under duress.

Aurelio Mandin also denied committing the offense charged. He declared that after his arrest, he was made to sign a document by the PAF personnel, the contents of which he was not able to read.  He signed it because he was struck with a .45 caliber handgun by one of the military men and threatened him with summary execution if he would not do so.  He was not informed of his rights nor given the services of counsel during the investigation.

After hearing, the trial court rendered its Decision convicting all the accused of the offense charged, thus:

“WHEREFORE, in view of the foregoing, the Court finds the accused Aurelio Mandin y Liston, Danilo Santos y Antonio and Tomas Salvador y Magno GUILTY beyond reasonable doubt for violation of Section 3601 of the Tariff and Customs Code of the Philippines (TCCP). There being no aggravating or mitigating circumstance and applying the Indeterminate Sentence Law, the court sentences each of the accused to an indeterminate term of EIGHT (8) YEARS and ONE (1) DAY of prision mayor, as minimum, to TEN (10) YEARS of prision mayor, as maximum, and to pay a fine of EIGHT THOUSAND PESOS (P8,000.00), without subsidiary imprisonment in case of insolvency, and to pay the costs.  The court also orders the forfeiture of the confiscated articles in favor of the Government.

SO ORDERED.”[5]

All the accused then seasonably interposed an appeal to the Court of Appeals, docketed as CA-G.R. CR No. 20186.

On August 9, 2000, the Appellate Court promulgated its Decision affirming the trial court’s Decision, thus:

“We cannot see any justification for the setting aside of the contested Decision.

THE FOREGOING CONSIDERED, the appealed Decision is hereby AFFIRMED.

SO ORDERED.”[6]

They filed a motion for reconsideration but was denied in a Resolution dated January 9, 2001.[7]

Only Tomas Salvador opted to elevate his case to this Court by way of the instant petition for review on certiorari.  He submits for our consideration the following assignments of error:

“I

THE ESSENTIAL ELEMENTS OF THE CRIME CHARGED IN THE INFORMATION LIKE UNLAWFUL IMPORTATION, POSSESSION OF UNLAWFULLY IMPORTED ARTICLES AND CONSPIRACY IN THE COMMISSION OF THE SAME, WERE NEVER PROVEN BEYOND REASONABLE DOUBT.

II

THERE WAS NO PROBABLE CAUSE FOR THE ARREST AND SEARCH OF THE PERSONS OF THE ACCUSED.

III

THE ACCEPTANCE BY THE TRIAL COURT AND THE AFFIRMANCE BY THE APPELLATE COURT OF THE TESTIMONIES OF PROSECUTION WITNESSES, AS WELL AS ALL ITS DOCUMENTARY EXHIBITS, DESPITE THE FACT THAT THE SAME WERE APPARENTLY OBTAINED IN VIOLATION OF THE CONSTITUTIONAL RIGHTS OF THE ACCUSED WERE UNLAWFUL.

IV

THE DENIAL BY THE TRIAL COURT AND THE CONCURRENCE BY THE APPELLATE COURT OF THE DEMURRER TO EVIDENCE WERE ALSO WITHOUT LEGAL BASIS.”[8]

The above assignments of error boil down to these issues:  (1) whether the seized items are admissible in evidence; and (2) whether the prosecution has proved the guilt of petitioner beyond reasonable doubt.

On the first issue, petitioner contends that the warrantless search and seizure conducted by the PAF operatives is illegal.  Citing People v. Burgos,[9] he maintains that at the time he and his co-accused were stopped by the PAF law enforces, they were unaware that a crime was being committed.  Accordingly, the law enforcers were actually engaged in a fishing expedition in violation of his Constitutional right against unlawful search and seizure.  Thus, the seized items should not have been admitted in evidence against him.

The Office of the Solicitor General (OSG) counters that under the factual circumstances of the case at bar, there was sufficient probable cause for the PAF surveillance team to stop and search petitioner and his companions.  They boarded the parked Air Bus 300 PAL plane at the time when there were no other PAL personnel working therein.  They stayed inside the plane for sometime and surprisingly, came out with bulging waists.  They then stopped and looked around and made apparent signals.  All these acts were sufficient to engender a reasonable suspicion that petitioner and his colleagues were up to something illegal.  Moreover, the search and seizure was conducted in connection with the enforcement of customs law when the petitioner and his co-accused were riding a motor vehicle.  In addition, the search was conducted at the vicinity of Lima Gate of the Manila Domestic Airport which, like every gate in the airport perimeter, has a checkpoint.  Finally, the petitioner and his companions agreed to the search after one of them was caught with a suspicious-looking packet.  Under these circumstances, the search and seizure is legal and the seized items are admissible in evidence.

We agree with the OSG.

As a rule, the Bill of Rights prohibits intrusions by the law enforcers to a person’s body, personal effects or residence, unless the same are conducted pursuant to a valid search warrant issued in compliance with the procedure mandated by the Constitution and the Rules of Court.   Thus, Sections 2 and 3(2), Article 3 of the 1987 Constitution provide:

“SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

SEC. 3.

x x x

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

x x x.”

The above Constitutional provisions do not prohibit searches and seizures, but only such as are unreasonable.  Our jurisprudence provides for privileged areas where searches and seizures may lawfully be effected sans a search warrant.  These recognized exceptions include: (1) search of moving vehicles; (2) search in plain view; (3) customs searches; (4) waiver or consented searches; (5) stop-and-frisk situations; and (6) search incidental to a lawful arrest.[10]

Here, it should be noted that during the incident in question, the special mission of the PAF operatives was to conduct a surveillance operation to verify reports of drug trafficking andsmuggling by certain PAL personnel in the vicinity of the airport.  In other words, the search made by the PAF team on petitioner and his co-accused was in the nature of a customs search.  As such, the team properly effected the search and seizure without a search warrant since it exercised police authority under the customs law.[11]

In Papa vs. Mago[12] involving a customs search, we held that law enforcers who are tasked to effect the enforcement of the customs and tariff laws are authorized to search and seize, without a search warrant, any article, cargo or other movable property when there is reasonable cause to suspect that the said items have been introduced into the Philippines in violation of the tariff and customs law.  They may likewise conduct a warrantless search of any vehicle or person suspected of holding or conveying the said articles, as in the case at bar.

In short, Mago clearly recognizes the power of the State to foil any fraudulent schemes resorted to by importers who evade payment of customs duties.  The Government’s policy to combat the serious malady of smuggling cannot be reduced to futility and impotence on the ground that dutiable articles on which the duty has not been paid are entitled to the same Constitutional protection as an individual’s private papers and effects.   Here, we see no reason not to apply this State policy which we have continued to affirm.[13]

Moreover, we recall that at the time of the search, petitioner and his co-accused were on board a moving PAL aircraft tow truck.  As stated earlier, the search of a moving vehicle is recognized in this jurisdiction as a valid exception to the requirement for a search warrant.   Such exception is easy to understand.  A search warrant may readily be obtained when the search is made in a store, dwelling house or other  immobile structure.  But it is impracticable to obtain a warrant when the search is conducted in a mobile ship, aircraft or other motor vehicle since they can quickly be moved out of the locality or jurisdiction where the warrant must be sought.[14] Verily, we rule that the Court of Appeals committed no reversible error in holding that the articles involved in the instant controversy were validly seized by the authorities even without a search warrant, hence, admissible in evidence against petitioner and his co-accused.

On the second issue, petitioner faults the Court of Appeals for readily sustaining the trial court’s finding that the witnesses for the prosecution were credible, notwithstanding that their testimonies contain glaring inconsistencies which tend to detract from their veracity.   Petitioner submits that these inconsistencies create serious doubt which should have been resolved in his favor.

We are not persuaded.

After a careful examination of the purported inconsistencies mentioned by petitioner, we find that they do not relate with the elements of the offense charged.  Rather, they tend to focus on minor and insignificant matters as for instance: which PAF operative was in possession of the hand-held radio; how the girdles (garters) were removed; and what time the aircraft in question arrived.

It bears stressing that these inconsistencies detract from the fact that all members of the special PAF team who conducted the search positively identified the petitioner and his co-accused as the same persons who boarded the PAL plane; stayed therein for a significant length of time; disembarked in a manner which stirred suspicion from the team; and with unusually bulging uniforms, rode an aircraft tow truck towards Lima Gate where they were caught in flagrante delicto.

As a rule, inconsistencies in the testimonies of witnesses which refer to trivial and insignificant details do not destroy their credibility. [15] Moreover, minor inconsistencies serve to strengthen rather than diminish the prosecution’s case as they tend to erase suspicion that the testimonies have been rehearsed, thereby negating any misgivings that the same were perjured.[16]

Section 3601 of the Tariff and Customs Code provides in part:

“SEC. 3601. Unlawful Importation. – Any person who shall fraudulently import or bring into the Philippines, or assist in so doing, any article contrary to law, or shall receive, conceal, buy, seal or in any manner facilitate the importation, concealment or sale of such article after importation, knowing the same to have been imported contrary to law, shall be guilty of smuggling…

x x x

When, upon trial for violation of this section, the defendant is shown to have had possession of the article in question, possession shall be deemed sufficient evidence to authorize conviction, unless the defendant shall explain the possession to the satisfaction of the court: Provided, however, That payment of the tax due after apprehension shall not constitute a valid defense in any prosecution under this section.”

Smuggling is thus committed by any person who (1) fraudulently imports or brings into the Philippines or assists in importing or bringing into the Philippines any article, contrary to law, or (2) receives, conceals, buys, sells or in any manner facilitates the transportation, concealment, or sale of such article after importation, knowing the same to have been imported contrary to law. [17] Importation commences when the carrying vessel or aircraft enters the jurisdiction of the Philippines with intention to unload and is deemed terminated upon payment of the duties, taxes and other charges due upon the articles and the legal permit for withdrawal has been issued, or where the articles are duty-free, once the articles have left the jurisdiction of the customs.[18]

In the instant case, the prosecution established by positive, strong, and convincing evidence that petitioner and his co-accused were caught red-handed by a team from the PAF Special Operations Squadron, while in the possession of highly dutiable articles inside the premises of the airport. The contraband items were taken by petitioner and his co-accused from a PAL plane which arrived from Hong Kong on the night of June 3, 1994. Petitioner and his colleagues then attempted to bring out these items in the cover of darkness by concealing them inside their uniforms.   When confronted by the PAF team, they were unable to satisfactorily explain why the questioned articles were in their possession.  They could not present any document to prove lawful importation.  Thus, their conviction must necessarily be upheld.  Clearly, the Court of Appeals committed no reversible error in affirming the trial court’s Decision convicting petitioner and his co-accused.

WHEREFORE, the petition is DENIED.  The appealed Decision and Resolution of the Court of Appeals in CA-G.R. CR No. 20186 are AFFIRMED IN ALL RESPECTS.  Costs against the petitioner.

SO ORDERED.

Panganiban, (Chairman), Corona, Carpio-Morales, and Garcia, JJ., concur.