1

1
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.zThey 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.
2
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
3
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 ofTerry 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.
Narvasa (Chairman), Cruz, Grio-Aquino and Medialdea, JJ., concur.

Facts:
Members of the Integrated National Police (INP) of the Davao Metrodiscom assigned with the Intelligence Task
Force, Pat. Ursicio Ungab and Pat. Umbra Umpar conducted surveillance along Magallanes Street, Davao City.
While in the vicinity of 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 unsuccessful. They then checked the "buri" bag of
the petitioner where they found one (1) caliber .38 Smith & Wesson revolver with Serial No. 770196, two (2)
rounds of live ammunition for a .38 caliber gun, a smoke (tear gas) grenade, and two (2) live ammunitions for a
.22 caliber gun. 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.


Issue: Whether or Not the warantless search is valid.


Held: 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.

in the case at bar, there is no question that, indeed, it is reasonable considering that 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.

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.

4
2
G.R. No. L-41686 November 17, 1980
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
COURT OF FIRST INSTANCE OF RIZAL, BRANCH IX, QUEZON CITY, presided by HON.
ULPIANO SARMIENTO, JESSIE HOPE and MONINA MEDINA, respondents.

GUERRERO, J.:

This original petition for certiorari seeks to nullify the Order dated August 20, 1975 issued by District
Judge Ulpiano Sarmiento in Criminal Case No. Q-3781 which stalled the prosecution of respondents Sgt. Jessie
C. Hope and Monina Medina for the alleged violation of section 3601
1
of the Tariff and Customs Code. The
order declared as inadmissible in evidence the allegedly smuggled articles obtained by apprehending agents in
the course of a warrantless search and seizure. Dispositively, the order decreed:

WHEREFORE, in accordance with Article IV, Sec. 4, paragraph 2 of the present Constitution, the
boxes and the watches and bracelets contained therein seized from the car of the accused Sgt.
Jessie C. Hope, are hereby declared inadmissible in evidence in this case; likewise, the pictures
taken of said items attempted to be presented as evidence in the instant case is hereby declared
in admissible as evidence against the accused.
SO ORDERED.

The records disclose that one week before February 9, 1974, the Regional Anti-Smuggling Action Center
(RASAC) was informed by an undisclosed Informer that a shipment of highly dutiable goods would be
transported to Manila from Angeles City on a blue Dodge car. Spurred by such lead, RASAC Agents Arthur
Manuel and Macario Sabado, on the aforesaid date and upon order of the Chief of Intelligence and Operations
Branch, RASAC-MBA, Col. Antonio Abad, Jr., stationed themselves in the vicinity of the toll gate of the North
Diversion Road at Balintawak, Quezon City.

At about 6:45 A.M. of the same day, a light blue Dodge car with Plate No. 21-87-73, driven by Sgt.
Jessie Hope who was accompanied by Monina Medina approached the exit gate and after giving the toll receipt
sped away towards Manila. The RASAC agents gave a chase and overtook Sgt. Hope's car. Agent Sabado blew
his whistle and signaled Sgt. Hope to stop but the latter instead of heeding, made a U-turn back to the North
Diversion Road, but he could not go through because of the buses in front of his car. At this point, the agents
succeeded in blocking Sgt. Hope's car and the latter stopped. Manuel and Sabado who were in civilian clothes
showed their Identification cards to respondents and introduced themselves as RASAC agents.

The Agents saw four (4) boxes on the back seat of the Dodge and upon inquiry as to what those boxes
were, Sgt. Hope answered "I do not know." Further, respondents were asked where they were bringing the
boxes, to which respondent Medina replied that they were bringing them (boxes) to the Tropical Hut at Epifanio
de los Santos. Agent Sabado boarded the Dodge car with respondents while Agent Manuel took their own car
and both cars drove towards Tropical Hut making a brief stop at the Bonanza where Agent Manuel called up Col.
Abad by telephone.

Arriving at the Tropical Hut, the party, together with Col. Abad who had joined them waited for the man
who according to Monina Medina was supposed to receive the boxes. As the man did not appear, Col. Abad
"called off the mission" and brought respondents and their car to Camp Aguinaldo arriving there at about 9:00
A.M. (Respondents' Memorandum, records, pp. 180-183).

An inspection of Sgt. Hope's car at Camp Aguinaldo yielded eleven (11) sealed boxes, four (4) on the
rear seat and seven (7) more in the baggage compartment which was opened on orders of Col. Abad. On the
same order of the intelligence officer, the boxes were opened before the presence of respondents Hope and
Medina, representatives of the Bureau of Internal Revenue, Bureau of Customs, P.C., COSAC and photographers
of the Department of National Defense. The contents of the boxes revealed some "4,441 more or less wrist
watches of assorted brands; 1,075 more or less watch bracelets of assorted brands" (based on a later
inventory), supposedly untaxed.

As consequence, thereof, ASAC Chairman General Pelagio Cruz requested the Bureau of Customs to
issue a Warrant of Seizure and Detention against the articles including the Dodge car. The Collector of Customs
5
did issue the same on February 12, 1974. It was admitted, however, that when the apprehending agents
arrested respondents and brought them together with the seized articles to the ASAC Office in Camp Aguinaldo,
the former were not armed with a warrant of arrest and seizure.

In conjunction with the Warrant of Seizure and Detention issued by the Collector of Customs, seizure
proceedings were instituted and docketed as Seizure Identification No. 14281 against the wrist watches and
watch bracelets pursuant to Section 2530 (m) 1 of the Tariff and Customs Code, and Seizure Identification
No. 14281-A against the Dodge car pursuant to Section 2530(k) of the same Code.
2

During the hearing of the aforesaid cases, respondents disclaimed ownership of the seized articles.
Ownership was instead claimed by one Antonio del Rosario who intervened in the proceedings. The claimant-
intervenor testified that he bought the watches and bracelets from Buenafe Trading as evidenced by a sales
invoice certified to be authentic by the BIR Revenue Regional Office No. 6 of Quezon City, which transaction was
entered in the book of accounts of aforesaid claimant; that the same articles were brought to a buyer in Angeles
City, but when the sale failed to materialize, claimant contracted respondent Monina Medina to transport back
the boxes to Manila for a consideration of P1,000.00 without disclosing the contents thereof which claimant
simply represented as PX goods; that when he bought the watches from Buenafe, he presumed that the
corresponding duties have already been paid, only to be surprised later on when he was informed that the same
were seized for non-payment of taxes.

On the other hand, respondent Hope testified to the effect that at the time of apprehension, he had no
knowledge of the contents of the boxes, and granting that he had such knowledge, he never knew that these
are untaxed commodities that he consented to transport said boxes from Angeles City to Manila in his car upon
request of his girl friend Monina as a personal favor; that he was not present when the boxes were loaded in his
car nor was he ever told of their contents on the way. On the part of respondent Monina Medina, she testified
that what she did was only in compliance with the agreement with Mr. Del Rosario to transport the boxes and
deliver them to a certain Mr. Peter at the Tropical Hut who will in turn give her the contracted price; that Mr.
Del Rosario did not reveal the contents of the boxes which she came to know of only when the boxes were
opened at Camp Aguinaldo. As there was not enough evidence to controvert the testimonies of respondents and
the narration of claimant Antonio del Rosario, the Collector of Customs issued his decision in the seizure cases
on April 1, 1975 declaring that the seized articles including the car are not subject of forfeiture.

The dispositive portion of this decision reads:
WHEREFORE, by virtue of Section 2312 of the Tariff and Customs Code, it is hereby ordered and
decreed that the subject motor vehicle, one (1) Dodge, Model 1965, Motor No. 33859, Serial No.
W357348361, File No. 2B-1884, with Plate No. EH 21-87, '73 covered by Seizure Identification
No. 14281-A be, as it is hereby declared released to its registered owner, Jessie C. Hope, upon
proper Identification. Relative to Seizure Identification No. 14281, it is further ordered and
decreed that the subject matter thereof to wit: 4,606 pcs. of assorted brands of wrist watches,
1,399 pieces of assorted brands of wrist bracelets and 100 pcs. of tools be, as they are hereby
likewise declared released to the rightful owner thereof, Antonio del Rosario, upon payment of
the levitable duties, taxes and other charges due thereon plus a fine equivalent to 100% of the
duties and taxes thereof. Furthermore, should claimant-intervenor fail to pay the assessable
duties, taxes and other charges owing from the aforestated articles within 30 days from the time
this decision becomes final and unappealable, the same shall be deemed abandoned in favor of
the government to be disposed of in the manner provided for by law.

Meanwhile, on March 14, 1974, after the requisite preliminary investigation, the City Fiscal of Quezon
City, finding the existence of a prima facie case against respondents Hope and Medina, filed Criminal Case No.
Q-3781 in the Court of First Instance of Rizal (Quezon City). Upon arraignment on April 23, 1974, respondents
pleaded not guilty. Trial commenced on January 28, 1975 and while the prosecution through its first witness,
Agent Macario Sabado, was adducing as evidence the pictures of the eleven (11) boxes containing the assorted
watches and watch bracelets, counsel for respondents objected to the presentation of the pictures and the
subject articles on the ground that they were seized without the benefit of warrant, and therefore inadmissible
in evidence under Section 4(2), Article IV of the New Constitution. After the parties have argued their grounds
in their respective memoranda, respondent trial court issued the questioned order of August 20, 1975 as cited
earlier. The prosecutions motion for reconsideration was denied on September 30, 1975. Hence, this petition
which was treated as a special civil action in Our Resolution of May 5, 1976.

The substantive issue as urged in the petition is whether or not the seizure of the merchandise in a
moving vehicle by authorized agents commissioned to enforce customs laws without warrant of seizure
6
breaches the constitutional immunity against unreasonable search and seizure and therefore, such merchandise
are inadmissible in evidence. Corollary to the issue is, has the trial court gravely abused its discretion in finding
the affirmative?

The State holds on the proposition that the rules governing search and seizure had been liberalized
when a moving vehicle is the object of the search and the necessity of a prior warrant has been relaxed on the
ground of practicality, considering that before a warrant could be obtained, the place, things and persons to be
searched must be described to the satisfaction of the issuing judge a requirement which borders on
impossibility in the case of smuggling effected by the use of a moving vehicle that can transport contraband
from one place to another with impunity. Petitioner vigorously contends that contraband may be seized without
necessity of a search warrant since the Constitution does not guaranty immunity to smugglers and that a
warrantless seizure of contraband in a moving vehicle is justified by the traditional exception attached to the
Fourth Amendment of the U.S. Constitution, and such exception must be adopted in interpreting the relevant
provision in the new Philippine Constitution.

As counter argument, respondents maintain that the decision of the Collector of Customs in their seizure
cases which has now become final and unappealable has made no pronouncement that the subject articles are
smuggled items. More so, the decision has entirely cleared respondents of any liability or responsibility in the
alleged smuggling activity and as a consequence, the decision has the direct effect of deciding finally that the
watches and bracelets are not smuggled and that respondents have not violated the customs and tariff laws as
charged in the criminal complaint. Respondents argue further that the interception of accused Jessie Hope's car
by RASAC Agents while in the course of a normal trip without any order of the court and without having shown
that the interception was necessary in the interest of national security, public safety or public health, is an
impairment of the liberty of travel under section 5, Article IV of the 1973 Constitution. Finally, they claim that
the agents had one week's time before the date of apprehension to secure the necessary warrant but since they
failed to get this court order, the search of Hope's car and the spontaneous seizure of the boxes loaded therein
and the contents thereof is a violation of the constitutional guarantee against "unreasonable searches and
seizure of whatever nature and for any purpose" under section 3, Article IV of the fundamental law.

We find for petitioner. The opposing counsel's attempt to draw an Identity between the seizure cases
and the present criminal action to the ultimate end that the decision in the former should be made decisive of
the issue of criminal liability must be overruled. It is not accurate to say that the Collector of Customs made no
findings that the articles were smuggled. In fact, what the Collector stated was that the prosecution failed to
present the quantum of evidence sufficient to warrant the forfeiture of the subject articles (Pages 128 and 130
of Annex "E", Records, p. 109). In a general sense, this does not necessarily exclude the possibility of
smuggling. But if the aim of a confirmation that the goods are indeed smuggled, is to draw an inference to tie
up respondents' criminal liability, the Collector is not duty bound, nor is there any need for him to arrive at such
a conclusion. It is quite clear that seizure and forfeiture proceedings under the tariff and customs laws are not
criminal in nature as they do not result in the conviction of the offender nor in the imposition of the penalty
provided for in section 3601 of the Code
3
. As can be gleaned from Section 2533 of the code, seizure
proceedings, such as those instituted in this case, are purely civil and administrative in character, the main
purpose of which is to enforce the administrative fines or forfeiture incident to unlawful importation of goods or
their deliberate possession. The penalty in seizure cases is distinct and separate from the criminal liability that
might be imposed against the indicted importer or possessor and both kinds of penalties may be imposed.
4

In the case at bar, the decision of the Collector of Customs, as in other seizure proceedings, concerns
the resrather than the persona. The proceeding is a probe on contraband or illegally imported goods. These
merchandise violated the revenue law of the country, and as such, have been prevented from being assimilated
in lawful commerce until corresponding duties are paid thereon and the penalties imposed and satisfied either in
the form of fines or of forfeiture in favor of the government who will dispose of them in accordance with law.
The importer or possessor is treated differently. The fact that the administrative penalty befalls on him is an
inconsequential incidence to criminal liability. By the same token, the probable guilt cannot be negated simply
because he was not held administratively liable. The Collector's final declaration that the articles are not subject
to forfeiture does not detract his findings that untaxed goods were transported in respondents' car and seized
from their possession by agents of the law. Whether criminal liability lurks on the strength of the provision of
the Tariff and Customs Code adduced in the information can only be determined in a separate criminal action.
Respondents' exoneration in the administrative cases cannot deprive the State of its right to prosecute. But
under our penal laws, criminal responsibility, if any, must be proven not by preponderance of evidence but by
proof beyond reasonable doubt.

7
Considering now the critical area of the dispute, under the law, the authority of persons duly
commissioned to enforce tariff and customs laws is quite exceptional when it pertains to the domain of searches
and seizures of goods suspected to have been introduced in the country in violation of the customs laws. This
Court had occasion to recognize this power granted to persons having police authority under Section 2203 of
the Code, who in order to discharge their official duties more effecttively
... may at anytime enter, pass through, or search any land or inclosure of any warehouse, store
or other building not being a dwelling house. (Section 2208, emphasis supplied)
... (to) go aboard any vessel or aircraft within the limits of any collection district, and to inspect,
search and examine said vessel or aircraft and any trunk, package, box or envelope on board,
and search any person on board the said vessel or aircraft and to this end to hail and stop such
vessel or aircraft if under way. to use all necessary force to compel compliance; and if it shall
appear that any breach or violation of the customs and tariff laws of the Philippines has been
committed, whereby or in consequence of which such vessels or aircrafts, or the article, or any
part thereof, on board of or imported by such vessel or aircrafts, is hable to forfeiture to make
seizure of the same or any part thereof.
The power of search herein above given shall extend to the removal of any false bottom,
partition, bulkhead or other obstruction, so far as may be necessary to enable the officer to
discover whether any dutiable or forfeitable articles may be concealed. (Section 2210)
or,
... (to) open and examine any box, trunk, envelope or other container wherever found when he
has reasonable cause to suspect the presence therein of dutiable or prohibited article or
articlesintroduced into the Philippines contrary to law, and likewise to stop, search and examine
any vehicle, beast or person reasonably suspected of holding or conveying such article as
aforesaid (Section 2211, emphasis supplied)

As enunciated in the leading case of Papa v. Mago
5
, in the exercise of the specific functions aforecited,
the Code does not mention the need of a search warrant unlike Section 2209 which explicitly provides that a
"dwelling house may be entered and searched only upon warrant issued by a judge (or justice of the peace),
upon swom application showing probable cause and particularly describing the place to be searched and person
or thing to be seized." Aware of this delineation, the Court in that case expressed the considered view that
"except in the case of the search of a dwelling house, persons exercising police authority under the customs law
may effect search and seizure without a search warrant in the enforcement of customs laws.

The rationale of the Mago ruling was nurtured by the traditional doctrine in Carroll v. United
States
6
wherein an imprimatur against constitutional infirmity was stamped in favor of a warrantless search
and seizure of such nature as in the case at bar. On this stable foundation We refute the constitutional charge of
respondents that the warrantless seizure violated Article IV, Section 3 of the 1973 Constitution, which finds
origin in the Fourth Amendment of the American Constitution
7

The Carroll doctrine arose from the indictment and conviction of George Carroll and partner for
transporting in an automobile intoxicating liquor in violation of the National Prohibition Act. They assailed the
conviction on the ground that the trial court admitted in evidence two of the sixty-eight bottles found by
searching the automobile and eventual seizure of the same allegedly in violation of the 4th Amendment, and
therefore that the use of the liquor as evidence was improper.
8
To paraphrase the significant views of Mr. Chief
Justice Taft, the legislative history of the Act clearly established the intent of Congress to make a distinction
between the necessity for a search warrant in the search of private dwellings and that of automobiles and other
road vehicles in the enforcement of the Act.

This distinction is consistent with the 4th Amendment since the latter does not denounce an searches or
seizures, but only such as are unreasonable. Searches and seizures without warrant are valid if made upon
probable cause, that is, upon a belief reasonably arising out of circumstances known to the seizing officer, that
an automobile or other vehicle contains that which by law is subject to seizure and destruction.
9
Similarly,
other statutes of the Union such as the Act of 1789, Act of August 4, 1790, and Act of March 3, 1815, among
others, construed in the light of the 4th Amendment had recognized the distinctive feature of a warrantless
search of a ship motorboat, wagon, or automobile for contraband goods where it is not practicable to secure a
warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must
be sought.
10
In such a situation, what appears to the measure of legality of the seizure was formulated in this
sense: "that the seizing officer shall have reasonable or probable cause for believing that the automobile which
he stops and seizes has contraband liquor therein which is being illegally transported. " Therein the guarantee
of the 4th Amendment was fulfilled. Where seizure is impossible except without warrant, the seizing officer acts
unlawfully and at his peril unless he can show the court probable cause.
11
8

The counsel for the State is candid enough to admit that the Anti-Smuggling Action Center tries its best
to follow-up the more promising tips and information from informers, but ever often, the information proves
false or the smugglers are forewarned.
12
It is quite true the ASAC received one such information several days
or a week before the encounter; but the fact that its agents failed to obtain a warrant in spite of the time
allowance is not a sign that they have been remiss in their duty. The records hardly reveal anything certain and
confirmatory of the report during the said period except the general knowledge that some highly dutiable goods
would be transported from Angeles City to Manila in a blue Dodge automobile. Not even the trial court has
made any findings that ASAC has established with exactitude the place to be searched and the person or thing
to be seized. Lacking this essential determination, the agents could not have possibly secured a valid warrant
even if they had foreseen its compelling necessity. For one thing, the information could have been just another
false alarm. Providentially, however, things turned out differently when in the morning of February 9, 1974, the
undisclosed Informer himself went along with the agents to the rendezvous point where at the appointed time
he positively Identified an approaching car as the one described by him a week earlier to be the suspected
carrier of untaxed merchandise. Clearly therefore, the agents acted not on the basis of a mere hearsay but on a
confirmed information worthy of belief and probable cause enough for them to adopt measures to freeze the
fleeting event.

We need not argue that the subjective phase of the police action taken by the ASAC Agents to effect the
apprehension of the suspected violators can be anything less than the ensuing interception and stoppage of
respondents' vehicle after a short chase. Neither can We sustain the argument that in doing so, the agents
violated respondents' constitutional "liberty of travel". To recall again Mr. Chief Justice Taft: "(B)ut those
lawfully within the country, entitled to use the public highways, have a right to free passage without
interruption or search unless there is known to a competent official authorized to search, probable cause for
believing that their vehicles are carrying contraband or illegal merchandise."
13
What followed next in the scene
was a simple inquiry as to the contents of the boxes seen inside the car. Respondents' baffled denial of
knowledge thereof could not but only heighten the suspicion of a reasonable and inquisitive mind. Thus, the
probable cause has not been any less mitigated.

The purpose of the constitutional guarantee against unreasonable searches and seizures is to prevent
violations of private security in person and property and unlawful invasion of the sanctity of the home by
officers of the law acting under legislative or judicial sanction and to give remedy against such usurpation when
attempted.
14
The right to privacy is an essential condition to the dignity and happiness and to the peace and
security of every individual, whether it be of home or of persons and correspondence.
15
The constitutional
inviolability of this great fundamental right against unreasonable searches and seizures must be deemed
absolute as nothing is more closer to a man's soul than the serenity of his privacy and the assurance of his
personal security. Any interference allowable can only be for the best of causes and reasons. We draw from the
context of the Constitution that an intended search or seizure attains a high degree of propriety only when a
probable cause duly determined is branded on a warrant duly issued by a judge or other responsible person as
may be authorized by law. Not invariably, however, the reasonableness or unreasonableness of the interference
is not wholly defendent on the presence of a warrant or the lack of it. 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.
16

The ultimate question then, if any, that should confront the actuations of the ASAC Agents in this case is
whether the warrantless search and seizure conducted by them is lawful or not. We have already seen that
what they did was a faithful performance of a duty authorized under the Tariff and Customs Code directing
them as authorized agents to retrieve articles reasonably suspected of having been possessed, issued or
procured in violation of the tariff laws for which the government has a direct interest. The official capacity of the
agents has never been questioned by respondents. Neither did respondents raise an issue on the
constitutionality of the law giving the agents the power to act as mandated. There 'is no question that the
Agents have not exceeded their authority nor have they acted so licentiously to bear upon respondents moral
embarrassment or substantial prejudice beyond what is necessary. The purpose of the search and seizure is
more than clear to Us, hence, We rule out the suspicion that the intention is only to elicit evidence to be used
against respondents.
9
We do not see strong justification for the trial court's failure to recognize the circumstances at bar as
among the "rare cases" which it admittedly conceded to be exempted from the requirement of a warrant.
17
The
lapse lies on the dismal gap in the trial court's developmental treat- ment of the law on arrest, search and
seizure. It missed the vital distinction emphatically laid down in Boyd v. United States
18
which was cited
in Carroll with "particular significance and applicability." Thus, We quote Mr. Justice Bradley in Boyd:

... The search and seizure of stolen or forfeited goods, or goods liable to duties and concealed to
avoid the payment thereof, are totally different things from a search for and seizure of a man's
private books and papers for the purpose of obtaining information therein contained, or of using
them as evidence against him, The two things differ in toto coelo. In the one case, the
government is entitled to the possession of the property; in the other it is not. The seizure of
stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of
the revenue laws or concealed to avoid the duties payable on them, has been authorized by
English statutes for at least two centuries past; and the like seizure have been authorized by our
revenue acts from the commencement of the government. The first statute passed by Congress
to regulate the collection of duties, the Act of July 31, 1789. 1 State at L. 29, 43, chap. 5,
contains provisions to this effect. As this act was passed by the same Congress which proposed
for adoption the original Amendments to the Constitution, it is clear that the members of that
body did not regard searches and seizures of this kind as 'unreasonable' and they are not
embraced within the prohibition of the Amendment. So also the supervision authorized to be
exercised by officers of the revenue over the manufacture of custody of excisable articles, and
the entries thereof in books required by law to be kept for their inspection, are necessarily
excepted out of the category of unreasonable searches and seizures. So also the laws which
provide for the search and seizure of articles and things which it is unlawful for a person to have
in his possession for the purpose of issue or disposition, such as counterfeit coin, lottery tickets,
implements of gambling, etc. are not within this category. Commonwealth v. Dana, 2 Met 329.
Many other things of this character might be enumerated. (Emphasis supplied).

Recently, in Viduya v. Berdiago
19
" this Court reiterated the controlling force of the Papa v. Mago ruling
hereinbefore cited and the persuasive authority of the leading decision in Carroll v. U.S., supra, and in
explaining the rationale of the doctrine significantly said that "(i)t is not for this Court to do less than it can to
implement and enforce the mandates of the customs and revenue laws. The evils associated with tax evasion
must be stamped out without any disregard, it is to be affirmed, of any constitutional right ...
The circumstances of the case at bar undoubtedly fall squarely within the privileged area where search and
seizure may lawfully be effected without the need of a warrant. The facts being no less receptive to the
applicability of the classic American ruling, the latter's force and effect as well as the Mago decision must be
upheld and reiterated in this petition. the find that the constitutional guarantee has not been violated and the
respondent court gravely erred in issuing the order of August 20, 1975 declaring as inadmissible evidence the
items or articles obtained and seized by the apprehending agents without any search warrant, as well as the
pictures of said items attempted to be presented as evidence against the accused.

Notwithstanding the reversal and setting aside of the order of respondent judge assailed herein, thereby
allowing the introduction and admission of the subject prohibited articles in the trial of the accused Jessie C.
Hope and Monina Medina for alleged smuggling, in the interest of speedy justice, the prosecution is directed
forthwith to re-assess and re-evaluate the evidence at its disposal, considering the lapse of time since the trial
commenced on June 28, 1975 and was thus delayed due to the filing of the instant certiorari petition and that
on April 1, 1975, after seizure proceedings initiated by the Collector of Customs, the said articles were ordered
released upon payment of the leviable duties, taxes and other charges due thereon plus a fine equivalent to
100% of the duties and taxes thereof. After such re-assessment and re-evaluation, the prosecution must
promptly take the necessary action on the premises for the protection of the rights and interests of all parties
concerned.

WHEREFORE, the Order appealed from is hereby set aside and the case is ordered remanded for further
trial and reception of evidence without excluding the articles subject of the seizure or for such action as the
prosecution may take after the re-assessment and re-evaluation of its evidence as hereinabove directed.

This judgment is immediately executory.

SO ORDERED.
Makasiar, Fernandez, De Castro * and Melencio-Herrera, JJ., concur.
Teehankee, J., files a separate opinion.
10

Separate Opinions

TEEHANKEE, J., dissenting and concurring:
This dissent is based on two aspects of the case at bar: I Firstly, as discussed in Part I hereof, I believe that the case
at hand does not fall, either pointedly or tangentially, under any of the recognized exceptions to the constitutionally
mandated warrant requirement, for the circumstances surrounding the apprehension, search and seizure conducted
by the RASAC agents show that they had ample time and opportunity for a week's time to secure the necessary
search warrant conformably with the constitutional requirement. The warrantless search and seizure violated
respondents' fundamental constitutional rights and rendered the goods so seized inadmissible in evidence; and II.

Secondly, I hold that the decision of the Customs authorities themselves, as cited in the majority opinion itself (at
page 4 to 9) wherein the seized articles (including the car of respondent Hope) were declared not subject to forfeiture
since said articles were found to have been purchased in good faith by the claimant thereof Antonio del Rosario under
a genuine purchase invoice from a trading firm and hence, the goods were ordered released to said Antonio del
Rosario upon payment of the corresponding duties and taxes and penalties "as the rightful owner thereof" and Hope's
car was ordered released to him as the registered owner in view of the finding that he had been merely asked to bring
the boxes back to Manila and had no hand in their importation nor purchase, rendered moot the question of
admissibility in evidence of the goods in question. The admission in evidence of the said goods which have been
determined by the Customs authorities themselves to have been lawfully purchased in good faith by the claimant-
intervenor would in no way established any criminal liability for the importation or transitory possession by
respondents, who were found by said authorities to be merely bringing them back to Manila on behalf of the owner.
Withal, I join and concur with the Court's directive in its judgment that in consonance with the respondents-accused's
right to speedy trial and justice that the prosecution forthwith reassess and reevaluate the evidence at its disposal"
and thereafter "promptly take the necessary action in the premises for the protection of the rights and interests of all
parties concerned" which, to my mind, means that the prosecution must as a simple matter of fairness and justice
move for the dismissal of the criminal case below as hereinbelow explained.

I
The opinion of the majority in effect stamps approval on the warrantless search for and seizure of the eleven (11)
sealed boxes containing wrist watches and watch bracelets of different trademarks, aboard the four-door blue Dodge
sedan owned by TSgt Jessie C. Hope of the United States Air Force by the agents of the Regional Anti-Smuggling
Action Center (RASAC), such approval being accorded on the strength of the Court's ruling in Papa v.
Mago
1
following, as the majority states, "the traditional doctrine in Caroll v. United States ,
2
as enunciated by the
U.S. Supreme Court. An analysis and appreciation of the facts of the case at bar and the fundamental principles on
the constitutional guarantee against unreasonable searches and seizure, as laid down by this Court and the
precedents set by the United States Supreme Court in resolving Fourth Amendment issues, make it clear to me that
respondent judges' challenged Orders (1) dated August 20, 1975 holding the warrantless "apprehension, search and
seizure"
3
in question violative of the provisions of Section 3, Article IV of the Constitution and consequently declaring
the boxes and their contents seized from Sgt. Hope's car as well as the pictures taken of the said items inadmissible in
evidence in the prosecution of respondents Sgt. Hope and his companion in the car, Monina Medina, for violation of
the provisions of Section 3601
4
of the Tariff and Customs Code of the Philip- pines; and (2) dated September 30,
1975 denying the State's motion for reconsideration of the Order dated August 20, 1975, should be upheld and the
petition at bar accordingly dismissed.

1. I cannot accede to the majority's casual approach to the case at bar which in the main raises an issue of
constitutional dimension. The majority opinion simply and broadly applied judicial precedent was taking no heed of the
injunction that when the guarantee against unreasonable search and seizure is invoked, there is a need to scrutinize
the facts rigorously to preclude any infringement thereof.
5
This injunction should be given due regard with greater
reason where, as in the case at bar, the Court invokes the applicability of a judicially established exception to a
constitutionally protective rule. Indeed "[t]he constitutional validity of a warrantless search [and seizure] is pre-
eminently the sort of question which can only be decided in the concrete factual context of the individual case."
6


2. The majority validates the warrantless search and seizure in the case at bar as an exception to the warrant
requirement (spelled out by the second clause of Section 3, Article IV of the Constitution) pursuant to the ruling
inPapa, supra, which in turn relied on the doctrinal pronouncements of the United States Supreme Court in Carroll,
supra. Carroll set the ruling that "if the search and seizure without a warrant are made upon probable cause, that is,
upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle
contains that which by law is subject to seizure and destruction, the search and seizure are valid."
7
The "necessary
difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant
readily may be obtained, and search of a ship, motor boat, wagon, or automobile for contraband goods, where it is
not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in
which the warrant must be sought"
8
supplied the underlying rationale for the Carroll rule. Put simply, Carroll declared
"a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the
11
car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be
obtained."
9
thereby laying down the probable cause plus exigent circumstances standard.

The following ultimate facts provided the basis for the aforementioned rule in Carroll. Three federal prohibition
agents and a state officer, while patrolling, on their regular tour of duty, the highway leading from Detroit to Grand
Rapids, Michigan, met and passed an Oldsmobile roadster in which rode Carroll and John Kiro, whom the said agents
recognized, from recent personal contact and observation, as having been lately engaged in illegal liquor dealings
(bootlegging).The government agents turned their car and pursued Carroll and Kiro to a point about nineteen miles
east of Grand Rapids "where they stopped them and searched the car." The agents found, stashed inside the
upholstered seats, sixty-eight bottles of whiskey and gin. Thereafter, the state officer and another took Carroll and
Kiro, the liquor and the car to Grand Rapids.

As could readily be seen, the "exigent circumstances"
10
which exist in connection with the ambulatory character of
the automobile provided the basic factor in the justification for the warrantless search and seizure in Carroll Absent,
thus, "these exigent circumstances," notwithstanding the presence of probable cause, a warrant must be secured and
used

The U.S. Supreme Court took this jurisprudential direction in the much later case of United States v. Joseph V.
Chadwick, et al." decided on June 21, 1977. The facts of the case were summarized as follows:
When respondents arrived by train in Boston from San Diego, they were arrested at their waiting
automobile by federal narcotics agents, who had been alerted that respondents were possible drug
traffickers. A double-locked footlocker, which respondents had transported on the train and which the
agents had probable cause to believe contained narcotics, had been loaded in the trunk of the
automobile. Respondents, together with the automobile and footlocker, which was admittedly under
the agents' exclusive control, were then taken to the Federal Building in Boston. An hour and a half
after the arrests the agents opened the footlocker without respondents' consent or a search warrant
and found large amounts of marijuana in it. Respondents were subsequently indicted for possession of
marijuana with intent to distribute it. The District Court granted their pretrial motion to suppress the
marijuana obtained from the footlocker, holding that warrantless searches are per se
unreasonableunder the Fourth Amendment unless they fall within some established exception to the
warrant requirement, and that the footlocker search was not justified under either the 'automobile
exception'or as a search incident to a lawful arrest; the Court of Appeals affirmed.
12


The U.S. Supreme Court, speaking through Mr. Chief Justice Warren E. Burger, responding to the Government's
argument that the rationale of the Court's automobile search cases applied as well to Chadwick, ruled that the
footlocker's mobility does not "justify dispensing with the added protections of the Warrant Clause" for, "[o]nce the
federal agents had seized it at the rail road station and had safely transferred it to the Boston Federal Building under
their exclusive control, there was not the slightest danger that the footlocker or its contents could have been removed
before a valid search warrant 13 could be obtained.
13


As to the contention of the Government that the search fell within the search-incident-to-a-lawful-arrest exception,
the U.S. Supreme Court ruled that "warrantless searches of luggage or other property seized at the time of an arrest
cannot be justified as incident to that arrest either if the 'search is remote in time or place from the arrest,...or no
exigency exists. Once lawful enforcement officers have reduced luggage or other personal property not immediately
associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the
arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no
longer an incident of the arrest.
14
It was emphasized that "the search was conducted more than an hour after federal
agents had gained exclusive control of the footlocker and long after respondents were securely in custody; the search
therefore cannot be viewed as incidental to the arrest or as justified by any other exigency.
15


I perceive no reason why the rationale in Chadwick should not find application to the case at bar. The record shows
the following undisputed facts: (1) A week before the actual interception of Sgt. Hope and Medina in the former's
Dodge sedan, the RASAC agents already knew, from an informer, that "a shipment of highly dutiable goods would be
transported to Manila from Angeles City in a blue Dodge car
16
and that the goods, in "sealed boxes with yellow
tie
17
would consist of "watches";
18
(2) After the interception, "Agent Sabado boarded the Dodge car with
respondents while Agent Manuel took [his] own car and both cars drove towards Tropical Hut making a brief stop at
the Bonanza where Agent Manuel called up Col. Abad by telephone";
19
and (3) "Arriving at the Tropical Hut, the
party, together with Col. Abad who had joined them waited for the man who according to Monina was supposed to
receive the boxes. As the man did not appear, Col. Abad 'called off the mission' and brought respondents and their car
to Camp Aguinaldo arriving there at about 9:00 A.M.
20


In the case at bar, granting that the RASAC agents had probable cause to effect the search and seizure,
nonetheless, no exigent circumstances justified their proceeding to do so without the requisite warrant. The RASAC
agents, having known a week before they actually undertook the operation that they would be intercepting a "blue
12
Dodge car" transporting watches in "sealed boxes," had ample opportunity within the one-week period to secure the
necessary warrant for the search and seizure contemplated. Moreover, the RASAC agents had another opportunity to
obtain the search and seizure warrant on the day of the operation itself. The actual interception took place "around
7:00 o'clock in the morning"
21
at the Balintawak approach to the North Diversion Road and the actual search and
seizure occurred past 9:00 o'clock the same morning at Camp Aguinaldo.
22
During the intervening period, Agent
Manuel even had time to telephone Colonel Abad to ask for instructions and could have taken up then with him the
matter of securing the necessary search and seizure warrant. Colonel Abad, as well, after learning from Agent Sabado
that interception tion and apprehension had already been effected, could himself, as RASAC Chief of Intelligence and
Operations, have secured the necessary search and seizure warrant.
23


As stressed by respondent judge in his questioned order, "there was ample time and opportunity to secure the
necessary warrant"
24
and [j]ust because the RASAC-MBA agents have information to make them believe that a
certain person has contraband goods in his possession, does not give them the right to search him and seize whatever
contraband may be found in his possession. ASAC Agents are not by law empowered to determine whether there
exists a 'probable cause, and even if they have such power, assuming it to be so, the determination of the probable
cause should be made by examining the complainant and his witnesses under oath or affirmation and particularly
describing the place to be searched and the thing or person to be seized, and not simply on bare information given by
an unnamed informer, as in the instant case."
25


Respondent judge aptly added that
We cannot accept 'good faith' here, as an excuse to justify violation of the Constitution in making the
warrantless apprehension search and seizure in question when there was sufficient time one week
within which they could have procured a warrant of arrest and a search warrant in accordance with
the proscriptions of the present Constitution, had the ASAC Agents wanted to. Agent Sabado simply
said 'it is not necessary.' Furthermore, if subjective good faith alone was the test, the protection
afforded the Filipino people by our present Constitution against unreasonable arrest, search and
seizure would evaporate and rendered its provision nugatory, and our people 'would be secured in
their persons, houses, papers and effects only in the discretion of the police'. And besides, what would
they have lost if they secured a warrant first? Would it have frustrated their efforts in enforcing the
provisions of the Customs and Tariff Code if they secured the necessary warrant before making the
apprehension and search? Would it have thwarted the purposes of the Customs and Tariff Code and
would the results have been different if they had taken the trouble of securing the necessary warrants,
and made the apprehension and search in accordance with the Constitution? It would have hardly
made any difference These over earnestness and zealousness on the part of the officers in the
discharge of their function, is what we should guard against. We might impress on them the
importance to our well ordered society of the 'rule of law' which necessarily imply respect for and
obedience to the Constitution and the laws of the land. This we can do by making it clear to them that
the fruits of such unreasonable searches and seizures, are 'forbidden fruits' in admissible in
evidence.
26


Granting arguendo that the RASAC agents had no opportunity after the apprehended respondents to secure the
necessary search and seizure warrant during the period prior to their arrival at Camp Aguinaldo, they certainly could
have delayed the actual search and seizure until the necessary warrant had been obtained, which would not have
taken them beyond mid-afternoon of the same day. The inconvenience which could be caused by the delay to
respondents Hope and Medina would at least be tolerable, for such inconvenience could be quantifiable only in terms
of hours spent while waiting, rather than the transgression of their rights through the warrantless search and seizure
which could be measured only in terms of fundamental constitutional values violated.
The case at bar offers no situation "where it is not practicable to secure a warrant because the vehicle can be quickly
moved out of the locality or jurisdiction in which the warrant must be sought." As previously stated, after the
interception, "Agent Sabado boarded the Dodge car with the respondents" and directed Sgt. Hope the route he should
take.
27
Agent Sabado had, in effect, taken custody or control of Sgt. Hope's Dodge sedan, for, being in there, on
hand at all times from the moment he boarded it through the trip to Bonanza Restaurant, Tropical Hut Foodmart and,
finally, Camp Aguinaldo to guard against any deviation by Sgt. Hope from the route he had been directed to take or
against any attempt to run off with the car and its contents, his presence had neutralized, if not eliminated, the said
car's mobility. Moreover, the RASAC agents, by directing the Dodge sedan to Camp Aguinaldo and retaining it within
the premises of the said Camp, had effected its complete immobilization as well as of its contents. Definitely under all
these circumstances, there could not have been the slightest possibility that Sgt. Hope and Medina could have either
moved the car or removed its contents all securely within the custody of the RASAC agents and the premises of
Camp Aguinaldo before the necessary search and seizure warrant could be secured.

Neither can the warrantless search in the case at bar be viewed as a search incident to a valid arrest so as to fall
within another recognized exception from the warrant requirement. In Preston v. United States, "
28
the U.S. Supreme
Court, in spelling out the rule regarding this exception and the rationale therefor, stated that:
13
Unquestionably when a person is lawfully arrested, the police have the right, without a search
warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits
of or implements used to commit the crime ... This right to search and seize without a search warrant
extends to things under the accused's immediate control ... and, to an extent depending on the
circumstances of the case, to the place where he is arrested ... The rule allowing contemporaneous
searches is justified, for example, by the need to seize weapons and other things which might be used
to assault an officer or effect an escape, as well as by the need to prevent the destruction of
evidence of the crime things which might easily happen where the weapon or evidence is on the
accused's person or under his immediate control. But these justifications are absent where a search is
remote in time or place from the arrest. Once an accused is under arrest and in custody, then a
search made at another place, without a warrant, is simply not incident to the arrest.
29


Clearly, the search in the case at bar cannot be sustained under the exceptions heretofore discussed, for, even
assuming the apprehension of Sgt. Hope and Medina as lawful, the "search was too remote in time or place to have
been made as incidental to the arrest.
30
Here, the RASAC agents intercepted and apprehended Sgt. Hope and Medina
"around 7:00 o'clock in the morning" at the Balintawak approach to the North Diversion Road but conducted the
search of the sealed boxes loaded in the Dodge sedan past 9:00 o'clock of the same morning at Camp Aguinaldo.
3. The majority opinion also cites Boyd v. United States,
31
with particular reference to the dissertation therein on the
distinction between the search and seizure of "stolen or forfeited goods or goods liable to duties and concealed to
avoid the payment thereof" and the search and seizure of "a man's private books and papers for the purpose of
obtaining information tion therein contained, or of using them as evidence against him" as well as on an historic and
statutory account of instances "excepted out of the category of unreasonable search and seizures."

Boyd raised the matter of distinction aforementioned in connection with the resolution of whether or not "a search and
seizure or, what is equivalent thereto, a compulsory production of a man's private papers, to be used in evidence
against him in a proceeding to forfeit property for alleged fraud against the revenue laws'
32
partook of "an
'unreasonable search and seizure' within the meaning of the Fourth Amendment of the Constitution?'
33
Mr. Justice
Joseph P. Bradley, who delivered the opinion of the Court, "sought to determine the meaning of the fourth
amendment reasonableness clause by looking to those principles of the common law which defined the limits of the
state's power to search and seize the belongings of its citizens. Although it could seize stolen goods and contraband,
at common law the government could not search for and seize for and citizen's belongings in which it could not assert
superior property rights.
34
He "concluded that the owner's 'indefeasible' natural law property rights, enshrined in the
common law and protected by the reasonableness clause of the fourth amendment placed his private papers and
other property absolutely beyond the reach of government agents seeking evidence of crime. No matter how
compelling the showing of probable cause or with what particularly the places to be search and the things to be might
be described, no warrant or subpoena could issue except for those items already owned by or forfeited to the
state.
35
In other words, the Court, in Boyd
36
, ruled inter aliathat the Constitution permitted searches and seizures
only of property in which the government could claim superior property rights at common law like "goods liable to
duties and concealed to avoid the payment thereof. "

The distinction excerpted in the opinion of the majority in the case at bar served, in Boyd, to underscore its property
oriented rationale. However, this distinction the very basis of the property-focused rationale had already been
explicitly abandoned by the U.S. Supreme Court in Warden, Maryland and Penitentiary v. Bennie Joe
Hayden,
37
wherein it was stated that:
Nothing in the language of the Fourth Amendment supports the distinction between 'mere evidence'
and instrumentalities, fruits of crime, or contraband. On its face, the provision assures the 'right of the
people to be secure in their persons, houses, papers, and effects ...,'without regard to the use to
which any of these things are applied This 'right of the people' is certainly unrelated to the 'mere
evidence' limitation. Privacy is disturbed no more by a search directed to a purely evidentiary object
than it is by a search directed to an instrumentality, fruit, or contraband. A magistrate can intervene
in both situation and the requirements of probable cause and specificity can be preserved intact.
Moreover, nothing in the nature of property seized as evidence renders it more private than property
seized, for example, as an instrumentality; quite the opposite may be true. Indeed distinction is
wholly irrational, since, depending on the circumstances, the same 'papers and effects' may be mere
evidence in one case and instrumentality in another.
xxx xxx xxx
The premise that property interest control the right of the Government to search and seize has been
discredited. Searches and seizures may be 'unreasonable within the Fourth Amendment even
though the Government asserts a superior property interest at common law. We have recognized that
the principal object of the Fourth Amendment is the protection of privacy rather than property, and
have increasingly discarded fictional and procedural barriers rested on property concepts ... This shift
in emphasis from property to privacy has come about through a subtle interplay of substantive and
procedural reform ...
xxx xxx xxx
14
... In determining whether someone is a 'person aggrieved by an unlawful search and seizure' we have
refused 'to import into the law ... subtle distinctions developed and refiled by the common law in
evolving the body of private property law which, more than almost any other branch of law, has been
shaped by distinctions whose validity is largely historical ... [W]e have given recognition to the
interest in privacy despite the complete absence of a property claim by suppressing the very items
which at common law could be seized with impunity: stolen goods
38
... ; instrumentalities
39
...; and
contraband
40
...
41


4. That necessity underlies the legislative grant of authority to certain functionaries
42
of the Government "to effect
searchches seizures and arrests" to secure the enforcement of the tariff and customs laws need not be belabored. The
scope of this authority, however, should be circumscribed by the procedural safeguards set forth by the Constitution.
Fealty to these constitutional guarantees requires that the Court, rather than accommodate extended applications of
the search seizure-and-arrest authority, should guard against shortcuts government functionaries are prone to
make which render nugatory 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.
43
This authority should, as a matter of
principle, be subjected to the requirements of prior judicial inquiry and sanction whenever possible and practicable.
The Court should not leave entirely to the hands of government functionaries discretionary determinations susceptible
of abuse and misuse, for, indeed, "[p]ower is a heady thing."
44

We must remember that the extent of any privilege of search and seizure without warrant which we
sustain, the officers interpret and apply themselves and will push to the limit. We must remember,
too, that freedom from unreasonable search differs from some of the other rights of the Constitution
in that there is no way in which the innocent citizen can invoke advance protection. For example, any
effective interference with freedom of the press, or free speech, or religion, usually requires a course
of suppressions against which the citizen can and often does go to the court and obtain an injunction.
Other rights, such as that to ... the aid of counsel, are within the supervisory power of the courts
themselves. Such a right as just compensation for the taking of private property may be vindicated
after the act in terms of money.
But an illegal search and seizure usually is a single incident, perpetrated by surprise, conducted in
haste, kept purposely beyond the court's supervision and limited only by the judgment and
moderation of officers whose own interests and records are often at stake in the search. There is no
opportunity for injunction or appeal to disinterested intervention. The citizen's choice is quietly to
submit to whatever the officers undertake or to resist at risk of arrest or immediate violence.
And we must remember that the authority which we concede to conduct searches and seizures without
warrant may be exercised by the most unfit and ruthless officers as well as by the fit and responsible
and resorted to in case of petty misdemeanors as well as in the case of the gravest felonies.
45


All told, I hold that the warrant less search and seizure conducted by the RASAC agents in the case at bar should be
invalidated and the constitutional sanction declaring the evidence obtained thereby "inadmissible for any purpose in
any proceeding"
46
should be upheld.

II
The outcome of the seizure and detention proceedings instituted by the Collector of Customs against the goods in
question including Sgt. Hope's car, wherein the car and goods were ordered returned to Sgt. Hope and the established
claimant owner of the goods, Antonio del Rosario, respectively, (subject in the case of the latter to payment of the
leviable duties and taxes and penalties), as recited on pages 4 to 9 of the majority opinion, shows clearly the lack of
any criminal liability on the part of the respondents.
The separate seizure and detention proceedings were instituted by the Collector of Customs of the Port of Manila on
February 13, 1974 and after hearing, the Collector rendered his decision of April 1, 1975 finding claimant Antonio del
Rosario to be the lawful owner and purchaser in good faith duly covered by an authentic sales invoice issued by the
trading firm which sold the same to him and Sgt. Hope to have been unaware of the contents of the 11 boxes which
his girlfriend, his co-respondent Monina Medina, had asked him to bring to Manila in his car.

The majority opinion itself recites these established facts on pages 4-5, as follows:
During the hearing of the aforesaid cases [seizures and detention proceedings], respondents
disclaimed ownership of the seized articles. Ownership was instead claimed by one Antonio del Rosario
who intervened in the proceedings. The claimant-intervenor testified that he bought the watches and
bracelets from Buenafe Trading as evidenced by a sales invoice certified to be authentic by the BIR
Revenue Regional Office No. 6 of Quezon City, which transaction was entered in the book of accounts
of aforesaid claimant; that the same articles were brought to a buyer in Angeles City, but when the
sale failed to materialize, claimant contracted respondent Monina Medina to transport back the boxes
to Manila for a consideration of P1,000.00 without disclosing the contents thereof which claimant
simply represented as PX goods; that when he bought the watches from Buenafe, he presumed that
the corresponding duties have already been paid, only to be surprised later on when he was informed
that the same were seized for non-payment of taxes.
15
On the other hand, respondent Hope testified to the effect that at the time of apprehension, he had no
knowledge of the contents of the boxes, and granting that he had such knowledge, he never knew
that these are untaxed commodities; that he consented to transport said boxes from Angeles City to
Manila in his car upon request of his girl friend Monina Medina as a personal favor; that he was not
present when the boxes were loaded in his car nor was he ever told of their contents on the way. On
the part of respondent Monina Medina, she testified that what she did was only in compliance with the
agreement with Mr. Del Rosario to transport the boxes and deliver them to a certain Mr. Peter at the
Tropical Hut who will in turn give her the contracted price; that Mr. Del Rosario did not reveal the
contents of the boxes which she came to know of only when the boxes were opened at Camp
Aguinaldo.
As there was not enough evidence to controvert the testimonies of respondents and the narration of
claimant Antonio del Rosario, the Collector of Customs issued his decision in the seizure cases on April
1, 1975 declaring that the seized articles including the car are not subject of forfeiture.

The Collector's decision of April 1, 1975, itself, as affirmed by the Commissioner of Customs' endorsement of April 28,
1975,
47
establishes in detail the above facts which absolve respondents of any complicity in any smuggling activity,
as follows:
From the evidence thus adduced, it was established that the boxes found inside the subject car are
4,606 pcs. of assorted brands of wrist watches, 1,399 pcs of wrist bracelets likewise of assorted
brands and 100 pcs. tools, as evidenced by the inventory list dated Feb. 22, 1974, (Exhs. '3'- '3-L'
Hope) is the prosecutions' contention that these articles were imported without going through a
customhouse in violation of Sec. 2530 m) of the TCCP. As a consequence thereof, the vehicle which
was used in transporting the subject articles was likewise seized for alleged violation of Section 2530
(k) of the same code.

With respect to the charge against the subject car, the claimant thereof, TSgt Jessie C Hope asserted
that he merely accommodated Monina Medina, his girl friend who requested him to help her bring her
cargo to Manila by driving the car from Angeles City to Manila; that he was not present when the 11
boxes were loaded in his car which was then parked on its usual parking place which is a vacant cant
lot adjacent to the house where he lives. He further stated that Monina Medina has an access to the
key of his car which he usually put on a table in his house and that she did not tell him of the contents
of the 11 boxes. Moreover he asserted that he came to know of the contents of the 11 boxes when
they were opened at the RASAC C office at Camp Aguinaldo. Upon being asked by this Office why it
never occurred to him to inquire from Monina Medina about the con- tents of the 11 boxes, claimant
categorically stated ... 'because of the girl's honesty to me.' In a similar vien, claimant stated in his
sworn statement given to the RASAC that he had known Monina Medina for quite a time so that ... 'he
did not suspect her to carry anything against the law of the Philippines and for that reason I did not
bother to ask her.' (Exh. '5-A Hope') These assertions find support in the direct testimony of Col.
Antonio Abad, Chief, Intelligence and Operations, RASAC, who testified thus: (t.s.n., p. 104)
A. ... I asked him again, how come your car was load- ed with foreign
items? And he said 'that is my lady companion's. I told him don't you
know these are hot items?
B. What did he say?
C. He was surprised

Both Col. Antonio Abad and Agent Macario Sabado, one of the apprehending agents admitted in open
hearing that during their initial interrogation of T/Sgt. Hope, he maintained and professed that he did
not know of the contents of the 11 boxes. Monina Medina, on the other hand, stated on direct
examination that TSgt Hope was not present when the subject 11 boxes were delivered to her at the
vacant lot in Angeles City by Antonio del Rosario. (tsn p. 169) Moreover, in her sworn statement given
to the RASAC, Monina Medina stated thus; (Exh. '4-A' Hope)
Q. When you told T/Sgt. Hope that you will load something in his car,
did he ask you what you were going to load?
R. No, sir.

Against the foregoing contentions, the prosecution failed to adduce any evidence circumstantial or
otherwise that may even tend to disprove or controvert the same. Granting 'arguendo' that T/Sgt.
Jessie C. Hope was aware of the contents of the 11 boxes that were found in his car, it is still
incumbent upon the prosecution to at least establish that he has knowledge that the articles he was
conveying are untaxed and/or smuggled as contemplated in See. 2530 (k) of the Tariff and Customs
Code. In the absence of evidence to prove such fact, which in this case there is none whatsoever, the
ground relied upon for the forfeiture of the vehicle in question remains unsubstantiated and therefore
will not lie.

16
Forfeiture works to deprive one's right to his property. Like the capital punishment which is the
supreme penalty for human beings forfeiture is the ultimate sanction imposable to property. However,
unlike the capital punishment which can only be imposed after the cause thereof has been established
beyond reasonable doubt, forfeiture should at least be made tenable only after the grounds therefor
have been established to a reasonable degree of certainty. It shall not lie if based on mere bare
presumptions and groundless conclusions. To hold otherwise would be arbitrary and repugnant to the
principle of judicial and/or administrative due process.

With respect to Seizure Identification No. 14281, it is evident that the claimant-intervenor herein
Antonio del Rosario purchased the subject wrist watches and bracelets from Teresa Buenafe
asevidenced by the covering purchase invoice No. 2637 dated February 7, 1974 which was certified to
be authentic by Jeron L. Castillo of Revenue Region No. 6, BIR Quezon City (Exhs. '2', '3' & '4'). The
aforesaid business transaction was entered in the Columnar Book (Exh. '3') of claimant-intervenor
which fact is a manifestation that Antonio del Rosario was a buyer in good faith and that the business
transaction he entered into with Teresa Buenafe was not simulated nor clandestine.

It is a well settled rule that bad faith cannot be presumed, it must be proven. In the absence of
evidence to the contrary, which in this case none whatsoever was presented the claimant-intervenor
herein is presumed to be a buyer in good faith. However, it is incumbent upon the claimant-intervenor
herein to prove that the subject articles are tax-paid. Aside from the covering sales invoice, not a
scintilla of evidence was adduced to prove that the duties and taxes due on the said items were
satisfied. In this connection, this Office does not share the view of the herein claimant-intervenor that
it is not the practice in business circles to inquire whether or not the subject matter of a business
transaction are tax-paid. Considering the quantity of the articles in question and the big volume of the
amount involved, Mr. Antonio del Rosario was quite negligent in failing to inquire from the seller
herein whether the duties and taxes of the items he purchased were satisfied or not.

Viewed in the light of the foregoing considerations, it is the studied opinion of this Office that while
theclaimant-intervenor herein is liable for the payment of the assessable duties and taxes owing from
the subject articles, the forfeiture thereof will not lie it appearing that the 'quantum' of evidence
adduced by the prosecution is insufficient to sustain the charges by the prosecution is insufficient to
sustain the charges levelled against the said articles. Moreover, this Office referred this case to the
Central Bank for the necessary Release Certificate. However, Mr. Cesar Lomotan, Deputy Governor,
Central Bank, in his letter to the Commissioner of Customs dated February 21, 1975 in effect stated
thus:
Based on subject's manager Mr. Antonio del Rosario's representations that the items involved were
bought from a local dealer as supported by an alleged commercial invoice from Teresa M. Buenafe
Trading dated February 7, 1974 submitted earlier, this Office cannot issue the required release
certificate therefor considering that no proof has been submitted to indicate that subject imported
goods in question.

WHEREFORE, by virtue of Section 2312 of the Tariff and Customs Code, it is hereby ordered and
decreed that the subject motor vehicle, one (1) Dodge, Model 1965, Motor No. 33859, Serial No.
W357348361, File No. 28-1884, with Plate No. EH 21-87, '73 covered by Seizure Identification No.
14281-A be, as it is hereby declared, released to its registered owner, Jessie C. Hope, upon proper
identification. Relative to Seizure Identification No. 14281, it is further ordered and decreed that the
subject matter thereof, to wit: 4,606 pcs. of assorted brands of wrist watches, 1,399 pieces of
assorted brands of wrist bracelets and 100 pcs. of tools be, as they are hereby likewise declared,
released to the rightful owner thereof, Antonio del Rosario, upon payment of the leviable duties, taxes
and other charges due thereon plus a fine equivalent to 100% of the duties and taxes thereof.
Furthermore, should claimant-intervenor fail to pay the assessable duties, taxes and other charges
owing from the aforestated articles within 30 days from the time this decision becomes final and
unappealable, the same shall be deemed abandoned in favor of the government to be disposed of in
the manner provided for by law.
48

As pointed in the People's petition itself, the Collector's said decision "has long become final and executory"
49
Hope's
car was duly released and returned to him since May 8, 1975.
50
And the goods were likewise presumably released to
the established claimant-owner Antonio del Rosario, because at the trial of the criminal case below, only pictures of
the 11 boxes containing the goods were sought to be presented by the prosecution.

The point is that the customs authorities, the Commissioner of Customs and the Manila Collector of Customs are
bound by their own above stated decision and findings in the seizure and detention proceedings that the goods in
question were lawfully owned by the claimant-intervenor Antonio del Rosario who had purchased them in good faith in
the regular course of business and that respondent Hope was completely innocent of any complicity in their
17
importation and purchase, having agreed merely to his girlfriend Monina Medina's request to bring the goods back to
Manila, without any knowledge of their contents, and they should accordingly direct the prosecution to move for
dismissal of the case below. As the majority opinion itself states:
The collector's final declaration that the articles are not subject to forfeiture does not detract his
findings that untaxed goods were transported in respondent's car and seized from their possession by
agents of the law. Whether criminal liability lurks on the strength of the provision of the Tariff and
Customs Code adduced in the information can only be determined in a separate criminal action.
Respondents' exoneration in the administrative cases cannot deprive the State of its right to
prosecute. But under our penal laws, criminal responsibility, if any, must be proven not by
preponderance of evidence but by proof beyond reasonable doubt.
51

Certainly, if respondent Hope were absolved by the customs authorities in the seizure and detention proceedings
because of the absolute lack of "any evidence circumstantial or otherwise" that would establish any complicity on his
part "to a reasonable degree of certainty" and justify the forfeiture of his car that was used in transporting the goods
to Manila, they must necessarily on the same evidence or absolute lack thereof as officially determined by themselves
move in all fairness and justice for and cause the dismissal of the criminal case below. If their evidence in the seizure
proceedings established that respondents had no part whatever in the importation or purchase by the claimant-
intervenor of the goods, the very same evidence cannot possibly lead to their being found guilty beyond reasonable
doubt of the smuggling charge nor overcome their fundamental right of presumption of innocence,
The main issue at bar as to the non-admissibility in evidence of the boxes and their photographs as ruled in
respondent judge's questioned order (which according to the petition has "the effect of acquitting the accused
[respondents] from the charges" in the criminal case below) has thus been rendered moot by respondents customs
authorities' decision and findings. The disposition of this case by the majority opinion of setting aside respondent
judge's order and ordering the case .remanded for further trial and reception of evidence without excluding the
articles subject of the seizure" has likewise been thus rendered moot. The admission in evidence of the said boxes or
their photographs whose contents have been found to be lawfully owned and purchased in good faith by the claimant-
intervenor Antonio del Rosario would in no way establish any criminal liability on the part of respondents.
Stated in another way, assuming that the seized goods or photos thereof are admissible in evidence not-withstanding
the warrantless search and seizure (justified on the doctrine of "hot pursuit"), as held in the majority opinion, still the
People's petition should be dismissed since the admission in evidence of the said goods which have been determined
by the Customs authorities themselves to have been lawfully purchased in good faith by the claimant-
intervenor would in no way establish any criminal liability for the importation or transitory possession by respondents,
who were found by said authorities to be merely bringing them back to Manila on behalf of the owner. If the
prosecution's evidence in the seizure proceedings established that respondents had no part whatever in the
importation or purchase by the claimant-intervenor of the goods, the very same evidence cannot possibly lead to their
being found guilty beyond reasonable doubt of the smuggling charge in the case before us nor overcome their
fundamental right of presumption of innocence.

The majority opinion penned by Mr. Justice Guerrero, however, reaches the conclusion that despite respondents'
exoneration in the administrative cases, the criminal- responsibility can be determined only in the separate criminal
action while conceding that such criminal responsibility "must be proven not by preponderance of evidence but
by proof beyond reasonable doubt.
52

This posture of the majority that any dismissal of the criminal case should not be ordered outright by this Court but by
the court a quo, whether motu proprio or at the prosecutions instance, is nonetheless understandable.
I join the Court's directive in its judgment that in consonance with the respondents-accused's right to speedy trial and
justice that the prosecution forthwith "reassess and reevaluate the evidence at its disposal" and thereafter promptly
take the necessary action in the premises for the protection of the rights and interests of all concerned.
This means, as indicated above, that if the prosecution's evidence (as supplied by the customs authorities) is totally
devoid of "any evidence circumstantial or otherwise" that would establish any complicity on the part of respondents
"to a reasonable degree of certainty", as determined in the very Collector's decision of April 1, 1975 itself as affirmed
by the Commissioner of Customs, then the prosecution must as a simple people matter of fairness and justice move
for the dismissal of the criminal case below. The judgment has been made immediately executory, so that the
prosecution may comply with the Court's directive without further delay.


Separate Opinions
TEEHANKEE, J., dissenting and concurring:
This dissent is based on two aspects of the case at bar: I Firstly, as discussed in Part I hereof, I believe that the
case at hand does not fall, either pointedly or tangentially, under any of the recognized exceptions to the
constitutionally mandated warrant requirement, for the circumstances surrounding the apprehension, search
and seizure conducted by the RASAC agents show that they had ample time and opportunity for a week's time
to secure the necessary search warrant conformably with the constitutional requirement. The warrantless
18
search and seizure violated respondents' fundamental constitutional rights and rendered the goods so seized
inadmissible in evidence; and II. Secondly, I hold that the decision of the Customs authorities themselves, as
cited in the majority opinion itself (at page 4 to 9) wherein the seized articles (including the car of respondent
Hope) were declared not subject to forfeiture since said articles were found to have been purchased in good
faith by the claimant thereof Antonio del Rosario under a genuine purchase invoice from a trading firm and
hence, the goods were ordered released to said Antonio del Rosario upon payment of the corresponding duties
and taxes and penalties "as the rightful owner thereof" and Hope's car was ordered released to him as the
registered owner in view of the finding that he had been merely asked to bring the boxes back to Manila and
had no hand in their importation nor purchase, rendered moot the question of admissibility in evidence of the
goods in question. The admission in evidence of the said goods which have been determined by the Customs
authorities themselves to have been lawfully purchased in good faith by the claimant-intervenor would in no
way established any criminal liability for the importation or transitory possession by respondents, who were
found by said authorities to be merely bringing them back to Manila on behalf of the owner.
Withal, I join and concur with the Court's directive in its judgment that in consonance with the respondents-
accused's right to speedy trial and justice that the prosecution forthwith reassess and reevaluate the evidence
at its disposal" and thereafter "promptly take the necessary action in the premises for the protection of the
rights and interests of all parties concerned" which, to my mind, means that the prosecution must as a simple
matter of fairness and justice move for the dismissal of the criminal case below as hereinbelow explained.
I
The opinion of the majority in effect stamps approval on the warrantless search for and seizure of the
eleven (11) sealed boxes containing wrist watches and watch bracelets of different trademarks, aboard the
four-door blue Dodge sedan owned by TSgt Jessie C. Hope of the United States Air Force by the agents of the
Regional Anti-Smuggling Action Center (RASAC), such approval being accorded on the strength of the Court's
ruling in Papa v. Mago
1
following, as the majority states, "the traditional doctrine in Caroll v. United
States ,
2
as enunciated by the U.S. Supreme Court. An analysis and appreciation of the facts of the case at bar
and the fundamental principles on the constitutional guarantee against unreasonable searches and seizure, as
laid down by this Court and the precedents set by the United States Supreme Court in resolving Fourth
Amendment issues, make it clear to me that respondent judges' challenged Orders (1) dated August 20, 1975
holding the warrantless "apprehension, search and seizure"
3
in question violative of the provisions of Section 3,
Article IV of the Constitution and consequently declaring the boxes and their contents seized from Sgt. Hope's
car as well as the pictures taken of the said items inadmissible in evidence in the prosecution of respondents
Sgt. Hope and his companion in the car, Monina Medina, for violation of the provisions of Section 3601
4
of the
Tariff and Customs Code of the Philip- pines; and (2) dated September 30, 1975 denying the State's motion for
reconsideration of the Order dated August 20, 1975, should be upheld and the petition at bar accordingly
dismissed.

1. I cannot accede to the majority's casual approach to the case at bar which in the main raises an issue of
constitutional dimension. The majority opinion simply and broadly applied judicial precedent was taking no heed
of the injunction that when the guarantee against unreasonable search and seizure is invoked, there is a need
to scrutinize the facts rigorously to preclude any infringement thereof.
5
This injunction should be given due
regard with greater reason where, as in the case at bar, the Court invokes the applicability of a judicially
established exception to a constitutionally protective rule. Indeed "[t]he constitutional validity of a warrantless
search [and seizure] is pre-eminently the sort of question which can only be decided in the concrete factual
context of the individual case."
6


2. The majority validates the warrantless search and seizure in the case at bar as an exception to the warrant
requirement (spelled out by the second clause of Section 3, Article IV of the Constitution) pursuant to the ruling
inPapa, supra, which in turn relied on the doctrinal pronouncements of the United States Supreme Court
in Carroll, supra. Carroll set the ruling that "if the search and seizure without a warrant are made upon probable
cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an
automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and
seizure are valid."
7
The "necessary difference between a search of a store, dwelling house, or other structure in
respect of which a proper official warrant readily may be obtained, and search of a ship, motor boat, wagon, or
automobile for contraband goods, where it is not practicable to secure a warrant because the vehicle can be
quickly moved out of the locality or jurisdiction in which the warrant must be sought"
8
supplied the underlying
rationale for the Carroll rule. Put simply, Carroll declared "a search warrant unnecessary where there is
probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted,
and the car's contents may never be found again if a warrant must be obtained."
9
thereby laying down the
probable cause plus exigent circumstances standard.

19
The following ultimate facts provided the basis for the aforementioned rule in Carroll.- Three federal prohibition
agents and a state officer, while patrolling, on their regular tour of duty, the highway leading from Detroit to
Grand Rapids, Michigan, met and passed an Oldsmobile roadster in which rode Carroll and John Kiro, whom the
said agents recognized, from recent personal contact and observation, as having been lately engaged in illegal
liquor dealings (bootlegging).The government agents turned their car and pursued Carroll and Kiro to a point
about nineteen miles east of Grand Rapids "where they stopped them and searched the car." The agents found,
stashed inside the upholstered seats, sixty-eight bottles of whiskey and gin. Thereafter, the state officer and
another took Carroll and Kiro, the liquor and the car to Grand Rapids.

As could readily be seen, the "exigent circumstances"
10
which exist in connection with the ambulatory
character of the automobile provided the basic factor in the justification for the warrantless search and seizure
in Carroll Absent, thus, "these exigent circumstances," notwithstanding the presence of probable cause, a
warrant must be secured and used
The U.S. Supreme Court took this jurisprudential direction in the much later case of United States v. Joseph V.
Chadwick, et al." decided on June 21, 1977. The facts of the case were summarized as follows:
When respondents arrived by train in Boston from San Diego, they were arrested at their waiting
automobile by federal narcotics agents, who had been alerted that respondents were possible
drug traffickers. A double-locked footlocker, which respondents had transported on the train and
which the agents had probable cause to believe contained narcotics, had been loaded in the
trunk of the automobile. Respondents, together with the automobile and footlocker, which was
admittedly under the agents' exclusive control, were then taken to the Federal Building in
Boston. An hour and a half after the arrests the agents opened the footlocker without
respondents' consent or a search warrant and found large amounts of marijuana in it.
Respondents were subsequently indicted for possession of marijuana with intent to distribute it.
The District Court granted their pretrial motion to suppress the marijuana obtained from the
footlocker, holding that warrantless searches are per se unreasonableunder the Fourth
Amendment unless they fall within some established exception to the warrant requirement, and
that the footlocker search was not justified under either the 'automobile exception'or as a search
incident to a lawful arrest; the Court of Appeals affirmed.
12

The U.S. Supreme Court, speaking through Mr. Chief Justice Warren E. Burger, responding to the Government's
argument that the rationale of the Court's automobile search cases applied as well to Chadwick, ruled that the
footlocker's mobility does not "justify dispensing with the added protections of the Warrant Clause" for, "[o]nce
the federal agents had seized it at the rail road station and had safely transferred it to the Boston Federal
Building under their exclusive control, there was not the slightest danger that the footlocker or its contents
could have been removed before a valid search warrant 13 could be obtained.
13

As to the contention of the Government that the search fell within the search-incident-to-a-lawful-arrest
exception, the U.S. Supreme Court ruled that "warrantless searches of luggage or other property seized at the
time of an arrest cannot be justified as incident to that arrest either if the 'search is remote in time or place
from the arrest,...or no exigency exists. Once lawful enforcement officers have reduced luggage or other
personal property not immediately associated with the person of the arrestee to their exclusive control, and
there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy
evidence, a search of that property is no longer an incident of the arrest.
14
It was emphasized that "the search
was conducted more than an hour after federal agents had gained exclusive control of the footlocker and long
after respondents were securely in custody; the search therefore cannot be viewed as incidental to the arrest or
as justified by any other exigency.
15

I perceive no reason why the rationale in Chadwick should not find application to the case at bar. The record
shows the following undisputed facts: (1) A week before the actual interception of Sgt. Hope and Medina in the
former's Dodge sedan, the RASAC agents already knew, from an informer, that "a shipment of highly dutiable
goods would be transported to Manila from Angeles City in a blue Dodge car
16
and that the goods, in "sealed
boxes with yellow tie
17
would consist of "watches";
18
(2) After the interception, "Agent Sabado boarded the
Dodge car with respondents while Agent Manuel took [his] own car and both cars drove towards Tropical Hut
making a brief stop at the Bonanza where Agent Manuel
called up Col. Abad by telephone";
19
and (3) "Arriving at the Tropical Hut, the party, together with Col. Abad
who had joined them waited for the man who according to Monina was supposed to receive the boxes. As the
man did not appear, Col. Abad 'called off the mission' and brought respondents and their car to Camp Aguinaldo
arriving there at about 9:00 A.M.
20

In the case at bar, granting that the RASAC agents had probable cause to effect the search and seizure,
nonetheless, no exigent circumstances justified their proceeding to do so without the requisite warrant. The
20
RASAC agents, having known a week before they actually undertook the operation that they would be
intercepting a "blue Dodge car" transporting watches in "sealed boxes," had ample opportunity within the one-
week period to secure the necessary warrant for the search and seizure contemplated. Moreover, the RASAC
agents had another opportunity to obtain the search and seizure warrant on the day of the operation itself. The
actual interception took place "around 7:00 o'clock in the morning"
21
at the Balintawak approach to the North
Diversion Road and the actual search and seizure occurred past 9:00 o'clock the same morning at Camp
Aguinaldo.
22
During the intervening period, Agent Manuel even had time to telephone Colonel Abad to ask for
instructions and could have taken up then with him the matter of securing the necessary search and seizure
warrant. Colonel Abad, as well, after learning from Agent Sabado that interception tion and apprehension had
already been effected, could himself, as RASAC Chief of Intelligence and Operations, have secured the
necessary search and seizure warrant.
23

As stressed by respondent judge in his questioned order, "there was ample time and opportunity to secure the
necessary warrant"
24
and [j]ust because the RASAC-MBA agents have information to make them believe that a
certain person has contraband goods in his possession, does not give them the right to search him and seize
whatever contraband may be found in his possession. ASAC Agents are not by law empowered to determine
whether there exists a 'probable cause, and even if they have such power, assuming it to be so, the
determination of the probable cause should be made by examining the complainant and his witnesses under
oath or affirmation and particularly describing the place to be searched and the thing or person to be seized,
and not simply on bare information given by an unnamed informer, as in the instant case."
25

Respondent judge aptly added that
We cannot accept 'good faith' here, as an excuse to justify violation of the Constitution in making
the warrantless apprehension search and seizure in question when there was sufficient time
one week within which they could have procured a warrant of arrest and a search warrant in
accordance with the proscriptions of the present Constitution, had the ASAC Agents wanted to.
Agent Sabado simply said 'it is not necessary.' Furthermore, if subjective good faith alone was
the test, the protection afforded the Filipino people by our present Constitution against
unreasonable arrest, search and seizure would evaporate and rendered its provision nugatory,
and our people 'would be secured in their persons, houses, papers and effects only in the
discretion of the police'. And besides, what would they have lost if they secured a warrant first?
Would it have frustrated their efforts in enforcing the provisions of the Customs and Tariff Code if
they secured the necessary warrant before making the apprehension and search? Would it have
thwarted the purposes of the Customs and Tariff Code and would the results have been different
if they had taken the trouble of securing the necessary warrants, and made the apprehension
and search in accordance with the Constitution? It would have hardly made any difference These
over earnestness and zealousness on the part of the officers in the discharge of their function, is
what we should guard against. We might impress on them the importance to our well ordered
society of the 'rule of law' which necessarily imply respect for and obedience to the
Constitution and the laws of the land. This we can do by making it clear to them that the fruits of
such unreasonable searches and seizures, are 'forbidden fruits' in admissible in evidence.
26

Granting arguendo that the RASAC agents had no opportunity after the apprehended respondents to secure the
necessary search and seizure warrant during the period prior to their arrival at Camp Aguinaldo, they certainly
could have delayed the actual search and seizure until the necessary warrant had been obtained, which would
not have taken them beyond mid-afternoon of the same day. The inconvenience which could be caused by the
delay to respondents Hope and Medina would at least be tolerable, for such inconvenience could be quantifiable
only in terms of hours spent while waiting, rather than the transgression of their rights through the warrantless
search and seizure which could be measured only in terms of fundamental constitutional values violated.

The case at bar offers no situation "where it is not practicable to secure a warrant because the vehicle can be
quickly moved out of the locality or jurisdiction in which the warrant must be sought." As previously stated,
after the interception, "Agent Sabado boarded the Dodge car with the respondents" and directed Sgt. Hope the
route he should take.
27
Agent Sabado had, in effect, taken custody or control of Sgt. Hope's Dodge sedan, for,
being in there, on hand at all times from the moment he boarded it through the trip to Bonanza Restaurant,
Tropical Hut Foodmart and, finally, Camp Aguinaldo to guard against any deviation by Sgt. Hope from the route
he had been directed to take or against any attempt to run off with the car and its contents, his presence had
neutralized, if not eliminated, the said car's mobility. Moreover, the RASAC agents, by directing the Dodge
sedan to Camp Aguinaldo and retaining it within the premises of the said Camp, had effected its complete
immobilization as well as of its contents. Definitely under all these circumstances, there could not have been the
slightest possibility that Sgt. Hope and Medina could have either moved the car or removed its contents all
21
securely within the custody of the RASAC agents and the premises of Camp Aguinaldo before the necessary
search and seizure warrant could be secured.

Neither can the warrantless search in the case at bar be viewed as a search incident to a valid arrest so as to
fall within another recognized exception from the warrant requirement. In Preston v. United States, "
28
the U.S.
Supreme Court, in spelling out the rule regarding this exception and the rationale therefor, stated that:
Unquestionably when a person is lawfully arrested, the police have the right, without a search
warrant, to make a contemporaneous search of the person of the accused for weapons or for the
fruits of or implements used to commit the crime ... This right to search and seize without a
search warrant extends to things under the accused's immediate control ... and, to an extent
depending on the circumstances of the case, to the place where he is arrested ... The rule
allowing contemporaneous searches is justified, for example, by the need to seize weapons and
other things which might be used to assault an officer or effect an escape, as well as by the
need to prevent the destruction of evidence of the crime things which might easily happen
where the weapon or evidence is on the accused's person or under his immediate control. But
these justifications are absent where a search is remote in time or place from the arrest. Once
an accused is under arrest and in custody, then a search made at another place, without a
warrant, is simply not incident to the arrest.
29

Clearly, the search in the case at bar cannot be sustained under the exceptions heretofore discussed, for, even
assuming the apprehension of Sgt. Hope and Medina as lawful, the "search was too remote in time or place to
have been made as incidental to the arrest.
30
Here, the RASAC agents intercepted and apprehended Sgt. Hope
and Medina "around 7:00 o'clock in the morning" at the Balintawak approach to the North Diversion Road but
conducted the search of the sealed boxes loaded in the Dodge sedan past 9:00 o'clock of the same morning at
Camp Aguinaldo.

3. The majority opinion also cites Boyd v. United States,
31
with particular reference to the dissertation therein
on the distinction between the search and seizure of "stolen or forfeited goods or goods liable to duties and
concealed to avoid the payment thereof" and the search and seizure of "a man's private books and papers for
the purpose of obtaining information tion therein contained, or of using them as evidence against him" as well
as on an historic and statutory account of instances "excepted out of the category of unreasonable search and
seizures."

Boyd raised the matter of distinction aforementioned in connection with the resolution of whether or not "a
search and seizure or, what is equivalent thereto, a compulsory production of a man's private papers, to be
used in evidence against him in a proceeding to forfeit property for alleged fraud against the revenue
laws'
32
partook of "an 'unreasonable search and seizure' within the meaning of the Fourth Amendment of the
Constitution?'
33
Mr. Justice Joseph P. Bradley, who delivered the opinion of the Court, "sought to determine the
meaning of the fourth amendment reasonableness clause by looking to those principles of the common law
which defined the limits of the state's power to search and seize the belongings of its citizens. Although it could
seize stolen goods and contraband, at common law the government could not search for and seize for and
citizen's belongings in which it could not assert superior property rights.
34
He "concluded that the owner's
'indefeasible' natural law property rights, enshrined in the common law and protected by the reasonableness
clause of the fourth amendment placed his private papers and other property absolutely beyond the reach of
government agents seeking evidence of crime. No matter how compelling the showing of probable cause or with
what particularly the places to be search and the things to be might be described, no warrant or subpoena could
issue except for those items already owned by or forfeited to the state.
35
In other words, the Court, in Boyd
36
,
ruled inter aliathat the Constitution permitted searches and seizures only of property in which
the government could claim superior property rights at common law like "goods liable to duties and concealed
to avoid the payment thereof. "

The distinction excerpted in the opinion of the majority in the case at bar served, in Boyd, to underscore its
property oriented rationale. However, this distinction the very basis of the property-focused rationale
had already been explicitly abandoned by the U.S. Supreme Court

in Warden, Maryland and Penitentiary v. Bennie Joe Hayden,
37
wherein it was stated that:
Nothing in the language of the Fourth Amendment supports the distinction between 'mere
evidence' and instrumentalities, fruits of crime, or contraband. On its face, the provision assures
the 'right of the people to be secure in their persons, houses, papers, and effects...,'without
regard to the use to which any of these things are applied This 'right of the people' is certainly
unrelated to the 'mere evidence' limitation. Privacy is disturbed no more by a search directed to
22
a purely evidentiary object than it is by a search directed to an instrumentality, fruit, or
contraband. A magistrate can intervene in both situation and the requirements of probable
cause and specificity can be preserved intact. Moreover, nothing in the nature of property seized
as evidence renders it more private than property seized, for example, as an instrumentality;
quite the opposite may be true. Indeed distinction is wholly irrational, since, depending on the
circumstances, the same 'papers and effects' may be mere evidence in one case and
instrumentality in another.
xxx xxx xxx
The premise that property interest control the right of the Government to search and seize has
been discredited. Searches and seizures may be 'unreasonable within the Fourth
Amendment even though the Government asserts a superior property interest at common law.
We have recognized that the principal object of the Fourth Amendment is the protection of
privacy rather than property, and have increasingly discarded fictional and procedural barriers
rested on property concepts ... This shift in emphasis from property to privacy has come about
through a subtle interplay of substantive and procedural reform ...
xxx xxx xxx
... In determining whether someone is a 'person aggrieved by an unlawful search and seizure' we
have refused 'to import into the law ... subtle distinctions developed and refiled by the common
law in evolving the body of private property law which, more than almost any other branch of
law, has been shaped by distinctions whose validity is largely historical ... [W]e have given
recognition to the interest in privacy despite the complete absence of a property claim by
suppressing the very items which at common law could be seized with impunity: stolen
goods
38
... ; instrumentalities
39
...; and contraband
40
...
41


4. That necessity underlies the legislative grant of authority to certain functionaries
42
of the Government "to
effect searchches seizures and arrests" to secure the enforcement of the tariff and customs laws need not be
belabored. The scope of this authority, however, should be circumscribed by the procedural safeguards set forth
by the Constitution. Fealty to these constitutional guarantees requires that the Court, rather than accommodate
extended applications of the search seizure-and-arrest authority, should guard against shortcuts government
functionaries are prone to make which render nugatory 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.
43
This authority should, as a matter of principle, be subjected to the requirements of prior judicial
inquiry and sanction whenever possible and practicable. The Court should not leave entirely to the hands of
government functionaries discretionary determinations susceptible of abuse and misuse, for, indeed, "[p]ower is
a heady thing."
44

We must remember that the extent of any privilege of search and seizure without warrant which
we sustain, the officers interpret and apply themselves and will push to the limit. We must
remember, too, that freedom from unreasonable search differs from some of the other rights of
the Constitution in that there is no way in which the innocent citizen can invoke advance
protection. For example, any effective interference with freedom of the press, or free speech, or
religion, usually requires a course of suppressions against which the citizen can and often does
go to the court and obtain an injunction. Other rights, such as that to ... the aid of counsel, are
within the supervisory power of the courts themselves. Such a right as just compensation for the
taking of private property may be vindicated after the act in terms of money.
But an illegal search and seizure usually is a single incident, perpetrated by surprise,
conducted in haste, kept purposely beyond the court's supervision and limited only by the
judgment and moderation of officers whose own interests and records are often at stake in the
search. There is no opportunity for injunction or appeal to disinterested intervention.
The citizen's choice is quietly to submit to whatever the officers undertake or to resist at risk of
arrest or immediate violence.
And we must remember that the authority which we concede to conduct searches and seizures
without warrant may be exercised by the most unfit and ruthless officers as well as by the fit and
responsible and resorted to in case of petty misdemeanors as well as in the case of the gravest
felonies.
45


All told, I hold that the warrant less search and seizure conducted by the RASAC agents in the case at bar
should be invalidated and the constitutional sanction declaring the evidence obtained thereby "inadmissible for
any purpose in any proceeding"
46
should be upheld.

II
23
The outcome of the seizure and detention proceedings instituted by the Collector of Customs against the goods
in question including Sgt. Hope's car, wherein the car and goods were ordered returned to Sgt. Hope and the
established claimant owner of the goods, Antonio del Rosario, respectively, (subject in the case of the latter
to payment of the leviable duties and taxes and penalties), as recited on pages 4 to 9 of the majority opinion,
shows clearly the lack of any criminal liability on the part of the respondents.

The separate seizure and detention proceedings were instituted by the Collector of Customs of the Port of
Manila on February 13, 1974 and after hearing, the Collector rendered his decision of April 1, 1975 finding
claimant Antonio del Rosario to be the lawful owner and purchaser in good faith duly covered by an authentic
sales invoice issued by the trading firm which sold the same to him and Sgt. Hope to have been unaware of the
contents of the 11 boxes which his girlfriend, his co-respondent Monina Medina, had asked him to bring to
Manila in his car.

The majority opinion itself recites these established facts on pages 4-5, as follows:
During the hearing of the aforesaid cases [seizures and detention proceedings], respondents
disclaimed ownership of the seized articles. Ownership was instead claimed by one Antonio del
Rosario who intervened in the proceedings. The claimant-intervenor testified that he bought the
watches and bracelets from Buenafe Trading as evidenced by a sales invoice certified to be
authentic by the BIR Revenue Regional Office No. 6 of Quezon City, which transaction was
entered in the book of accounts of aforesaid claimant; that the same articles were brought to a
buyer in Angeles City, but when the sale failed to materialize, claimant contracted respondent
Monina Medina to transport back the boxes to Manila for a consideration of P1,000.00 without
disclosing the contents thereof which claimant simply represented as PX goods; that when he
bought the watches from Buenafe, he presumed that the corresponding duties have already been
paid, only to be surprised later on when he was informed that the same were seized for non-
payment of taxes.

On the other hand, respondent Hope testified to the effect that at the time of apprehension, he
had no knowledge of the contents of the boxes, and granting that he had such knowledge, he
never knew that these are untaxed commodities; that he consented to transport said boxes from
Angeles City to Manila in his car upon request of his girl friend Monina Medina as a personal
favor; that he was not present when the boxes were loaded in his car nor was he ever told of
their contents on the way. On the part of respondent Monina Medina, she testified that what she
did was only in compliance with the agreement with Mr. Del Rosario to transport the boxes and
deliver them to a certain Mr. Peter at the Tropical Hut who will in turn give her the contracted
price; that Mr. Del Rosario did not reveal the contents of the boxes which she came to know of
only when the boxes were opened at Camp Aguinaldo.

As there was not enough evidence to controvert the testimonies of respondents and the
narration of claimant Antonio del Rosario, the Collector of Customs issued his decision in the
seizure cases on April 1, 1975 declaring that the seized articles including the car are not subject
of forfeiture.
The Collector's decision of April 1, 1975, itself, as affirmed by the Commissioner of Customs' endorsement of
April 28, 1975,
47
establishes in detail the above facts which absolve respondents of any complicity in any
smuggling activity, as follows:

From the evidence thus adduced, it was established that the boxes found inside the subject car
are 4,606 pcs. of assorted brands of wrist watches, 1,399 pcs of wrist bracelets likewise of
assorted brands and 100 pcs. tools, as evidenced by the inventory list dated Feb. 22, 1974,
(Exhs. '3'- '3-L' Hope) is the prosecutions' contention that these articles were imported without
going through a customhouse in violation of Sec. 2530 m) of the TCCP. As a consequence
thereof, the vehicle which was used in transporting the subject articles was likewise seized for
alleged violation of Section 2530 (k) of the same code.

With respect to the charge against the subject car, the claimant thereof, TSgt Jessie C Hope
asserted that he merely accommodated Monina Medina, his girl friend who requested him to help
her bring her cargo to Manila by driving the car from Angeles City to Manila; that he was not
present when the 11 boxes were loaded in his car which was then parked on its usual parking
place which is a vacant cant lot adjacent to the house where he lives. He further stated that
Monina Medina has an access to the key of his car which he usually put on a table in his house
and that she did not tell him of the contents of the 11 boxes. Moreover he asserted that he came
24
to know of the contents of the 11 boxes when they were opened at the RASAC C office at Camp
Aguinaldo. Upon being asked by this Office why it never occurred to him to inquire from Monina
Medina about the con- tents of the 11 boxes, claimant categorically stated ... 'because of the
girl's honesty to me.' In a similar vien, claimant stated in his sworn statement given to the
RASAC that he had known Monina Medina for quite a time so that ... 'he did not suspect her to
carry anything against the law of the Philippines and for that reason I did not bother to ask her.'
(Exh. '5-A Hope') These assertions find support in the direct testimony of Col. Antonio Abad,
Chief, Intelligence and Operations, RASAC, who testified thus: (t.s.n., p. 104)
A. ... I asked him again, how come your car was load- ed with
foreign items? And he said 'that is my lady companion's. I told him
don't you know these are hot items?
B. What did he say?
C. He was surprised

Both Col. Antonio Abad and Agent Macario Sabado, one of the apprehending agents admitted in
open hearing that during their initial interrogation of T/Sgt. Hope, he maintained and professed
that he did not know of the contents of the 11 boxes. Monina Medina, on the other hand, stated
on direct examination that TSgt Hope was not present when the subject 11 boxes were delivered
to her at the vacant lot in Angeles City by Antonio del Rosario. (tsn p. 169) Moreover, in her
sworn statement given to the RASAC, Monina Medina stated thus; (Exh. '4-A' Hope)
Q. When you told T/Sgt. Hope that you will load something in his
car, did he ask you what you were going to load?
R. No, sir.

Against the foregoing contentions, the prosecution failed to adduce any evidence circumstantial
or otherwise that may even tend to disprove or controvert the same. Granting 'arguendo' that
T/Sgt. Jessie C. Hope was aware of the contents of the 11 boxes that were found in his car, it is
still incumbent upon the prosecution to at least establish that he has knowledge that the articles
he was conveying are untaxed and/or smuggled as contemplated in See. 2530 (k) of the Tariff
and Customs Code. In the absence of evidence to prove such fact, which in this case there is
none whatsoever, the ground relied upon for the forfeiture of the vehicle in question
remains unsubstantiated and therefore will not lie.

Forfeiture works to deprive one's right to his property. Like the capital punishment which is the
supreme penalty for human beings forfeiture is the ultimate sanction imposable to property.
However, unlike the capital punishment which can only be imposed after the cause thereof has
been established beyond reasonable doubt, forfeiture should at least be made tenable only after
the grounds therefor have been established to a reasonable degree of certainty. It shall not lie if
based on mere bare presumptions and groundless conclusions. To hold otherwise would
be arbitrary and repugnant to the principle of judicial and/or administrative due process.
With respect to Seizure Identification No. 14281, it is evident that the claimant-intervenor herein
Antonio del Rosario purchased the subject wrist watches and bracelets from Teresa Buenafe
asevidenced by the covering purchase invoice No. 2637 dated February 7, 1974 which was
certified to be authentic by Jeron L. Castillo of Revenue Region No. 6, BIR Quezon City (Exhs. '2',
'3' & '4'). The aforesaid business transaction was entered in the Columnar Book (Exh. '3') of
claimant-intervenor which fact is a manifestation that Antonio del Rosario was a buyer in good
faith and that the business transaction he entered into with Teresa Buenafe was not simulated
nor clandestine.

It is a well settled rule that bad faith cannot be presumed, it must be proven. In the absence of
evidence to the contrary, which in this case none whatsoever was presented the claimant-
intervenor herein is presumed to be a buyer in good faith. However, it is incumbent upon the
claimant-intervenor herein to prove that the subject articles are tax-paid. Aside from the
covering sales invoice, not a scintilla of evidence was adduced to prove that the duties and taxes
due on the said items were satisfied. In this connection, this Office does not share the view of
the herein claimant-intervenor that it is not the practice in business circles to inquire whether or
not the subject matter of a business transaction are tax-paid. Considering the quantity of the
articles in question and the big volume of the amount involved, Mr. Antonio del Rosario was quite
negligent in failing to inquire from the seller herein whether the duties and taxes of the items he
purchased were satisfied or not.

25
Viewed in the light of the foregoing considerations, it is the studied opinion of this Office that
while theclaimant-intervenor herein is liable for the payment of the assessable duties and taxes
owing from the subject articles, the forfeiture thereof will not lie it appearing that the 'quantum'
of evidence adduced by the prosecution is insufficient to sustain the charges by the prosecution
is insufficient to sustain the charges levelled against the said articles. Moreover, this Office
referred this case to the Central Bank for the necessary Release Certificate. However, Mr. Cesar
Lomotan, Deputy Governor, Central Bank, in his letter to the Commissioner of Customs dated
February 21, 1975 in effect stated thus:
Based on subject's manager Mr. Antonio del Rosario's representations that the items involved
were bought from a local dealer as supported by an alleged commercial invoice from Teresa M.
Buenafe Trading dated February 7, 1974 submitted earlier, this Office cannot issue the required
release certificate therefor considering that no proof has been submitted to indicate that subject
imported goods in question.
WHEREFORE, by virtue of Section 2312 of the Tariff and Customs Code, it is hereby ordered and
decreed that the subject motor vehicle, one (1) Dodge, Model 1965, Motor No. 33859, Serial No.
W357348361, File No. 28-1884, with Plate No. EH 21-87, '73 covered by Seizure Identification
No. 14281-A be, as it is hereby declared, released to its registered owner, Jessie C. Hope, upon
proper identification. Relative to Seizure Identification No. 14281, it is further ordered and
decreed that the subject matter thereof, to wit: 4,606 pcs. of assorted brands of wrist watches,
1,399 pieces of assorted brands of wrist bracelets and 100 pcs. of tools be, as they are hereby
likewise declared, released to the rightful owner thereof, Antonio del Rosario, upon payment of
the leviable duties, taxes and other charges due thereon plus a fine equivalent to 100% of the
duties and taxes thereof. Furthermore, should claimant-intervenor fail to pay the assessable
duties, taxes and other charges owing from the aforestated articles within 30 days from the time
this decision becomes final and unappealable, the same shall be deemed abandoned in favor of
the government to be disposed of in the manner provided for by law.
48


As pointed in the People's petition itself, the Collector's said decision "has long become final and
executory"
49
Hope's car was duly released and returned to him since May 8, 1975.
50
And the goods were
likewise presumably released to the established claimant-owner Antonio del Rosario, because at the trial of the
criminal case below, only pictures of the 11 boxes containing the goods were sought to be presented by the
prosecution.

The point is that the customs authorities, the Commissioner of Customs and the Manila Collector of Customs are
bound by their own above stated decision and findings in the seizure and detention proceedings that the goods
in question were lawfully owned by the claimant-intervenor Antonio del Rosario who had purchased them in
good faith in the regular course of business and that respondent Hope was completely innocent of any
complicity in their importation and purchase, having agreed merely to his girlfriend Monina Medina's request to
bring the goods back to Manila, without any knowledge of their contents, and they should accordingly direct the
prosecution to move for dismissal of the case below. As the majority opinion itself states:
The collector's final declaration that the articles are not subject to forfeiture does not detract his
findings that untaxed goods were transported in respondent's car and seized from their
possession by agents of the law. Whether criminal liability lurks on the strength of the provision
of the Tariff and Customs Code adduced in the information can only be determined in a separate
criminal action. Respondents' exoneration in the administrative cases cannot deprive the State of
its right to prosecute. But under our penal laws, criminal responsibility, if any, must be proven
not by preponderance of evidence but by proof beyond reasonable doubt.
51


Certainly, if respondent Hope were absolved by the customs authorities in the seizure and detention
proceedings because of the absolute lack of "any evidence circumstantial or otherwise" that would establish any
complicity on his part "to a reasonable degree of certainty" and justify the forfeiture of his car that was used in
transporting the goods to Manila, they must necessarily on the same evidence or absolute lack thereof as
officially determined by themselves move in all fairness and justice for and cause the dismissal of the criminal
case below. If their evidence in the seizure proceedings established that respondents had no part whatever in
the importation or purchase by the claimant-intervenor of the goods, the very same evidence cannot possibly
lead to their being found guilty beyond reasonable doubt of the smuggling charge nor overcome their
fundamental right of presumption of innocence,

The main issue at bar as to the non-admissibility in evidence of the boxes and their photographs as ruled in
respondent judge's questioned order (which according to the petition has "the effect of acquitting the accused
[respondents] from the charges" in the criminal case below) has thus been rendered moot by respondents
26
customs authorities' decision and findings. The disposition of this case by the majority opinion of setting aside
respondent judge's order and ordering the case .remanded for further trial and reception of evidence without
excluding the articles subject of the seizure" has likewise been thus rendered moot. The admission in evidence
of the said boxes or their photographs whose contents have been found to be lawfully owned and purchased in
good faith by the claimant-intervenor Antonio del Rosario would in no way establish any criminal liability on the
part of respondents.

Stated in another way, assuming that the seized goods or photos thereof are admissible in evidence not-
withstanding the warrantless search and seizure (justified on the doctrine of "hot pursuit"), as held in the
majority opinion, still the People's petition should be dismissed since the admission in evidence of the said
goods which have been determined by the Customs authorities themselves to have been lawfully purchased in
good faith by the claimant-intervenor would in no way establish any criminal liability for the importation or
transitory possession by respondents, who were found by said authorities to be merely bringing them back to
Manila on behalf of the owner. If the prosecution's evidence in the seizure proceedings established that
respondents had no part whatever in the importation or purchase by the claimant-intervenor of the goods,
the very same evidence cannot possibly lead to their being found guilty beyond reasonable doubt of the
smuggling charge in the case before us nor overcome their fundamental right of presumption of innocence.

The majority opinion penned by Mr. Justice Guerrero, however, reaches the conclusion that despite
respondents' exoneration in the administrative cases, the criminal- responsibility can be determined only in the
separate criminal action while conceding that such criminal responsibility "must be proven not by
preponderance of evidence but by proof beyond reasonable doubt.
52

This posture of the majority that any dismissal of the criminal case should not be ordered outright by this Court
but by the court a quo, whether motu proprio or at the prosecutions instance, is nonetheless understandable.

I join the Court's directive in its judgment that in consonance with the respondents-accused's right to speedy
trial and justice that the prosecution forthwith "reassess and reevaluate the evidence at its disposal" and
thereafter promptly take the necessary action in the premises for the protection of the rights and interests of all
concerned.
This means, as indicated above, that if the prosecution's evidence (as supplied by the customs authorities) is
totally devoid of "any evidence circumstantial or otherwise" that would establish any complicity on the part of
respondents "to a reasonable degree of certainty", as determined in the very Collector's decision of April 1,
1975 itself as affirmed by the Commissioner of Customs, then the prosecution must as a simple people matter
of fairness and justice move for the dismissal of the criminal case below. The judgment has been
made immediately executory, so that the prosecution may comply with the Court's directive without further
delay.

Footnotes
1 Section 3601. Unlawful Importation. Any person who shall fraudulently import or bring into the
Philippines, or assist ill so doing any articles, contrary to law, or shall receive, conceal, buy, sell, or in any
manner facilitate the transportation, concealment, or sale of such article after importation, knowing the
same to have been imported contrary to law, shall be guilty of smuggling and shall be punished with:
xxx xxx xxx
In applying the above scale of penalties, if the offender is an alien and the prescribed penalty is not death,
he shall be deported after serving the sentence without further proceedings for deportation. If the offender
is a government official or employee, the penalty shall be the maximum as hereinabove prescribed and the
offender shall suffer an additional penalty of perpetual disqualification from public office, to vote and to
participate in any public election.
When, upon trial for violation of the 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 action. (As amended by R.A.
No. 4712, approved on June 18, 1966).
2 Section 2530. Property Subject to Forfeiture Under Tariff and Customs Laws. Any vehicle, vessel or
aircraft, cargo, articles and other objects shall, under the following conditions be subjected to forfeiture:
xxx xxx xxx
k. Any conveyance actually being used for the transport of articles subject to forfeiture under the tariff and
customs laws, with its equipment or trappings, and any vehicle similarly used, together with its equipment
and appurtenances including the beast, steam or other motive power drawing or propelling the same. The
mere conveyance of contraband or smuggled articles by such beast or vehicle shall be sufficient cause for
the outright seizure and confiscation of such beast or vehicle, but the forfeiture shall not be effected if it is
established that the owner of the means of conveyance used as aforesaid is engaged as common carrier and
not chartered or leased, or his agent in charge thereof at the time, has no knowledge of the unlawful act;
27
xxx xxx xxx
m. Any article sought to be imported or exported:
(1) Without going through a customhouse, whether the act was consummated frustrated or attempted;
7 PHIL. CONST (1973), Art. IV, Sec. 3.
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 not be violated, and no search warrant
or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other
responsible officer as may be authorized by law, 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.
FOUR THE AMENDMENT, AMERICAN CONST
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable
searches and seizures, shall not be violated, and no warrants shall be issued, but upon probable cause,
supported by oath or affirmation, and particularly describing the place to be searched, and the persons or
things to be seized.
8 Carroll v. United States, supra at 544,
3 Although the Order dated August 20, 1975 rather amply discusses the arrest-aspect of the case at bar
guide Order, pp. 23-25, and Rollo, pp. 82-84, the majority opinion prescinds from passing upon the matter.
4 Section 3601 declares "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, sell, or in any manner facilitate the
transportation, concealment, or sale of such article after importation, knowing the same to have been
imported contrary to law" guilty of smuggling and prescribes a scale of penalties for the violation thereof.
5 Jose G. Lopez, et al., v. Commissioner of Customs, et al., L-27968, December 3, 1975; 68 SCRA 320, 321.
6 Nelson Sibron v. State of New York, 29 L. Ed. 2d 917, 932; 392 U.S. 40, 59. Vide also the dissenting
opinion of Mr. Justice Thurgood Marshall with whom Messrs. Justices Wilham 0. Douglas and William J.
Brennan, Jr., join, in United States v. Willie Robinson Jr. (33 L. Ed. 2d 427: 414 U.S. 218). In his dissent,
Mr. Justice Marshall takes exception to the majority's approach for, he reasons, it represents a clear and
marked departure from [the Court's] long tradition of case-by-case adjudication of the reasonableness of
searches and seizures under the Fourth Amendment. " He also states that the majority's attempt to avoid
case-by-case adjudication of amendment issues is not only misguided as a matter of principle, but also
doomed to f ail as a matter of practical application.
17 Rollo p. 87, corresponding to page 28 Of the Memorandum for the Respondents wherein appear quoted
excerpts from the transcript of stenographic notes taken during the hearing of Criminal Case Q38 1 involved
herein.
18 Rollo, pp. 186-187, corresponding to pages 27- 28 of the memorandum for the Respondents.
Parenthetically, the majority's opinion attaches no significance to the circumstance that the ASAC agents
knew beforehand that the highly dutiable goods which would be transported from Angeles City of Manila "in
sealed boxes" would be "watches." On the matter the opinion only states, to wit:
The records hardly reveal anything certain and confirmatory of the report during the said period except the
general knowledge that some highly dutiable goods would be transported from Angeles City to Manila in a
blue Dodge automobile. (Decision, p. 12),
23 Vide Delfin Lim, et al. v. Francisco Ponce de Leon, L-22554, August 29, 1975, 66 SCRA 299, wherein the
Court, regarding the claim of "lack of time to procure a search warrant as an excuse for the seizure of the
motor launch [involved therein] without one," held that "[T]he claim cannot be sustained, The records show
that on June 15, 1962 Fiscal Ponce de Leon made the first request to the Provincial Commander for the
impounding of the motor launch; and on June 26, 1962 another request was made. The seizure was not
effected until July 6, 1962. In short, Fiscal Ponce de Leon had all the time to prosecure a search warrant had
he wanted to and which he could have taken in less than a day , but he did not. Besides, there is no basis
for the apprehension that the motor launch might be moved out of Balabac because even prior to its seizure
the motor launch was already without its engine. In sum the fact that there was no time to secure a search
warrant would not legally justify a search without one.
41 Warden 18 L. Ed. 2d at 789-791, 387 U.S. at 304- 306. 12 Section 2203 of the Tariff and Customs Code
of the Philippines enumerates the persons authorized "to effect searches, seizures and arrests," to wit:
a. Officials of the Bureau of Customs, collectors, assistant collectors, deputy collectors, surveyors, security
and secret-service , agents, inspectors, port patrol officers and guards of the Bureau of Customs; b. Officers
of the Philippine Navy and other members of the Armed Forces of the Philippines and national law
enforcement agencies when authorized by the commissioner;
c. Officials of the Bureau of Internal Revenue on all cases falling within the regular performance of their
duties, when the payment of internal revenue taxes are involved; and
d. Officers generally empowered by law to effect arrests and execute processes of courts, when acting under
the direction of the collector.





28
3
G.R. No. 84960 September 1, 1989
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EFREN ASIO y MOLINTAS, accused-appellant.
The Solicitor General for plaintiff-appellee.
Edilberto B. Tenefrancia for accused-appellant.

GUTIERREZ, JR., J.:
Efren Asio y Molintas was charged with violation of Sec. 21 (b), in relation to Sec.4, Article II of Republic Act
No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972. The Information reads:
The undersigned accuses EFREN ASIO Y MOLINTAS for VIOLATION OF SEC. 21 (b), in relation to
SEC. 4 of ART. II of REPUBLIC ACT No. 6425, AS AMENDED by Batas Pambansa Bilang 179
(Sale, Administration, Delivery, Distribution and Transportation of Dangerous Drugs), committed
as follows:
That on or about the 4th day of December, 1985, in the City of Baguio, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, not authorized by law, did
then and there willfully, unlawfully and feloniously attempt to sell, deliver, distribute, dispatch in
transit or transport 3,500 grams of dried marijuana leaves, knowing fully well that said leaves
are marijuana leaves, a prohibited drug, in violation of the above mentioned provision of law. (At
p. 1, Original Record)

Upon arraignment on January 7, 1986, the accused, assisted by counsel, pleaded not guilty to the crime
charged.

The trial court, however, upon careful evaluation of the evidence presented, found the accused guilty of the
crime charged. The dispositive portion of its decision reads:
WHEREFORE, the accused, Efren Asio y Molintas, is found guilty beyond reasonable doubt of
delivery of marijuana, a prohibited drug, without authority of law, under Section 4, Article II of
Republic Act No. 6425, as amended, and hereby sentences him to suffer life imprisonment, as
well as to pay a fine of Twenty Thousand Pesos (P 20,000.00) without subsidiary imprisonment,
in case of insolvency. He shall be credited with the preventive imprisonment undergone by him,
subject to the conditions prescribed by Article 29 of the Revised Penal Code, as amended.
The subject marijuana leaves are confiscated in favor of the government. (At pp. 184-185,
Original Records)

The People's summary of the prosecution's evidence is as follows:
On December 4,1985, at about 3:00 o'clock in the afternoon, an informant went to the office of
the First Narcotics Regional Unit in Baguio City. The informant gave information that selling of
marijuana was rampant in Wright Park, Baguio City (pp. 4-8, TSN, February 26, 1987) and that
appellant was involved in said trafficking of marijuana (p. 3, TSN, December 23,1987).
Acting on the information given by the informant, Captain Emmanuel 0. Manzano formed a team
composed of Sgt. Alexander Cao, Pat. Maximiano Peralta and A2FC Freddie Cartel. They were
instructed to conduct a 'buy-bust operation' against appellant. Cartel was designated to pose as
buyer. Sgt. Cao and Pat Peralta would serve as the back-up of the team (pp. 8-9, TSN, February
26,1987; p. 4, TSN, December 23,1987).
After the team was formed and the members were assigned their specific functions, they went to
Wright Park. They reached Wright Park at about 3:30 o'clock in the afternoon (p. 4, TSN,
September 23, 1987). They saw appellant conversing with somebody in front of a little store in
Wright Park. Cartel and the informant approached appellant while Sgt. Cao and Pat, Peralta
stayed about 15 meters away. While Cartel and appellant were conversing, Sgt. Cao and Pat.
Peralta then moved closer until they were only about 4 to 5 meters away from Cartel and
appellant (pp. 4-6, TSN, ibid).
After about 10 minutes of conversation, appellant left, going towards the north (p. 6, TSN, ibid).
At about 4:30 o'clock in the same afternoon, appellant returned to Cartel. He was carrying with
him two small sacks. Upon appellant's arrival, Sgt. Cao and Pat. Peralta rushed to where Cartel
and appellant were. They identified themselves as NARCOM agents, confiscated the two bags and
arrested appellant (pp. 9-12, TSN, ibid). They brought appellant to the police station where he
was investigated. Appellant was charged the following day (p. 13, TSN, ibid).
29
The two bags were endorsed to Sgt. Bugtong, the Chief of the Narcotics Division of the Baguio
City Police Station, who, in turn, sent the same to the PC INP Crime Laboratory Service at Camp
Dangwa, La Trinidad, Benguet (p. 14-15, TSN, ibid).
The forensic chemist Carlos V. Figueroa found that the 2 bags contained 'marijuana flowering
tops' (p. 5, TSN, November 7,1986). (At pp- 3-6, Brief for the Appellee, Rollo, p. 85)

The accused-appellant now raises before us the following assignments of errors:
I
THE TRIAL COURT ERRED IN HOLDING THAT THE SCHEME EMPLOYED BY THE NARCOM AGENTS
WAS MERELY AN ENTRAPMENT OPERATION AND NOT ONE WHICH INDUCED THE ACCUSED TO A
COMMISSION OF AN OFFENSE, THE LATTER BEING AN ABSOLUTORY CIRCUMSTANCE;
II
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED ON THE BASIS OF EVIDENCE
OBTAINED IN VIOLATION OF SECTION 2, ARTICLE III OF THE 1987 CONSTITUTION OF THE
REPUBLIC OF THE PHILIPPINES;
III
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF AN OFFENSE DIFFERENT FROM
THAT CHARGED IN THE INFORMATION AND DESPITE THE PRESENCE OF CIRCUMSTANCES
WHICH GIVE RISE TO REASONABLE DOUBT AS TO HIS GUILT. (At pp. 43-44, Rollo)

Appellant's contention that the scheme used by the NARCOM agents was instigation and not entrapment is
without merit. This is a bare allegation not borne by evidence on the part of the accused.
As seen from the facts, the operation conducted by the police officers was clearly one of entrapment. The case
of People v. Valmores, 122 SCRA 922 [1983] clearly elucidates the difference between entrapment and
instigation. "In an entrapment, ways and means are resorted to for the purpose of trapping and capturing the
law breakers in the execution of their criminal plan; whereas in instigation, the instigator practically induces the
would-be defendant into the commission of the offense and he himself becomes a co- principal." There is no
such inducement in the case before us. In the first place, the police officers did not know the petitioner
beforehand. There is no reason for the NARCOM agents to induce appellant to violate the law. There is nothing
in the records which could explain why the prosecution witnesses would fabricate their testimonies and
implicate appellant in such a serious crime (People v. Rodante Bautista, 147 SCRA 500 [1987] ). The principal
prosecution witnesses are all law enforcers, and are therefore, presumed to have regularly performed their duty
in the absence of proof to the contrary (People v. Neil Tejada, G.R. No. 81520, February 21, 1989; People v.
Carlito de Jesus, 145 SCRA 521 [1986]; People v. Alverez, G.R. No. 70446, January 31,1989).
On the contrary, what is evident from the records is the criminal resolve of the accused even before the
NARCOM agents met him. It was precisely on the basis of a report that there was rampant drug trafficking at
Wright Park that the buy-bust operation was conducted. The accused was already pushing marijuana. The
agents simply waited for appellant to ply his trade and then trapped him.

The existence beforehand of such unlawful trade is evident from the fact that the accused-appellant had a ready
supply of marijuana to meet the buyers' demands. He might not have had it right at the time the initial
transaction took place but he was readily able to produce the desired quantity. In fact, it took him only a few
minutes to produce the marijuana. If it were really true that he was induced into looking for marijuana, it would
have taken him a considerable length of time to look for a source. The fact that he returned shortly after the
transaction shows that he already had contacts from whom he could readily get the marijuana.
This is clearly not a case where an innocent person is induced to commit a crime. This is simply a trap to catch
the criminal. The accused-appellant further questions the non-presentation of the informant. This allegation is of
no moment since it is up to the Fiscal to present his witnesses. The absence of the informant as witness is not
fatal (People v. Cerelegia 147 SCRA 538 [1987]). Moreover, there is a need to protect the identity of informers
to enable them to help in the identification of drug traffickers.

The non-presentation of the poseur-buyer, Cartel, was likewise assailed by the defense. This was, however,
satisfactorily explained by the prosecution. Cartels whereabouts are unknown because he was already
discharged from the service. But even in the absence of the testimony of said poseur-buyer, the evidence
against the accused remains strong. Sgt. Cao and Pat. Peralta's testimonies corroborate each other regarding
the delivery of marijuana by Asio to Cartel.

The second issue raised by the accused is the absence of a warrant of arrest or search warrant when the two
(2) bags were seized from him and he was arrested.

30
The rule that a search and seizure must be supported by a valid warrant is not an absolute one. There are
recognized exceptions to the rule among them, 1) a search incidental to an arrest; 2) a search of a moving
vehicle; and 3) the seizure of evidence in plain view (Mariposa, Jr. v. Sandiganbayan, 143 SCRA 267). Par. a,
Sec. 6, Rule 113 of the Rules of Court specifically states:
A peace officer or a private person may, without a warrant arrest a person:
a) when the person to be arrested has committed, is actually committing, or is about to commit
an offense in his presence
xxx xxx xxx

A search and seizure without a warrant is allowed in buy-bust operations, the circumstances being among those
which can be considered exceptional.

The accused, in this case, was caught red-handed while pushing marijuana. Hence, he could be lawfully
arrested and searched.

Lastly, the accused-appellant alleges that he was convicted of an offense different from that charged in the
information. According to him, he was charged under Sec. 21(b) in relation to Sec. 4 of Art. II of the Dangerous
Drugs Act, which states:
Sec. 21. Attempt and Conspiracy -The same penalty prescribed by this Act for the commission of
the offense shall be imposed in the case of any attempt or conspiracy to commit the same in the
following cases:
xxx xxx xxx
b) Sale, administration, delivery, distribution and transportation of dangerous drugs;

His conviction was, according to him, based on a different provision. That is Sec. 4 of the same Article which
provides:
The penalty of life imprisonment to death and a fine ranging from twenty thousand to thirty
thousand 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. If the victim of the offense is
a minor, or should a prohibited drug involved in any offense under this Section be the proximate
cause of the death of a victim thereof, the maximum penalty herein provided shall be imposed.
(As amended by PD No. 1675, February 17,1980)

There is nothing inconsistent about the two provisions, they are referring to one and the same offense and
carrying with it the same penalty. Sec. 21(b) of RA 6425 merely specified the manner of violation of the
prohibited acts mentioned in Section 4 of the same Article.

The accused-appellant further argues that the Information does not charge only one offense. The contention is
without basis. There is only one offense charged the violation of Sec. 4 of RA 6425. The words "sell, deliver,
distribute, dispatch in transit or transport merely describe the specific acts constituting the violation of Section
4. Moreover, the alleged defect has become academic at this point. It should have been properly raised in a
motion to quash before the appellant pleaded to the Information. Failure to do so is deemed a waiver in
accordance with Section 8, Rule 117 of the 1985 Rules on Criminal Procedure.

There is one other important reason why this appeal should be dismissed. After the records of this case were
transmitted from the Court of Appeals on July 26, 1988 where they were erroneously forwarded, the accused-
appellant escaped from detention. His own lawyer says he could not contact the appellant.
On that basis alone, the appeal may be dismissed.

WHEREFORE, premises considered, the decision of the trial court is AFFIRMED in toto.

SO ORDERED.
Fernan, C.J., (Chairman), Feliciano, Bidin and Cortes, JJ., concur.




31
4
G.R. No. L-27360 February 28, 1968
HON. RICARDO G. PAPA, as Chief of Police of Manila; HON. JUAN PONCE ENRILE, as
Commissioner of Customs; PEDRO PACIS, as Collector of Customs of the Port of Manila;
and MARTIN ALAGAO, as Patrolman of the Manila Police Department, petitioners,
vs.
REMEDIOS MAGO and HILARION U. JARENCIO, as Presiding Judge of Branch 23, Court of
First Instance of Manila, respondents.
Office of the Solicitor General for petitioners.
Juan T. David for respondents.
ZALDIVAR, J.:
This is an original action for prohibition and certiorari, with preliminary injunction filed by Ricardo Papa,
Chief of Police of Manila; Juan once Enrile, Commissioner of Customs; Pedro Pacis, Collector of Customs of the
Port of Manila; and Martin Alagao, a patrolman of the Manila Police Department, against Remedios Mago and
Hon. Hilarion Jarencio, Presiding Judge of Branch 23 of the Court of First Instance of Manila, praying for the
annulment of the order issued by respondent Judge in Civil Case No. 67496 of the Court of First Instance of
Manila under date of March 7, 1967, which authorized the release under bond of certain goods which were
seized and held by petitioners in connection with the enforcement of the Tariff and Customs Code, but which
were claimed by respondent Remedios Mago, and to prohibit respondent Judge from further proceeding in any
manner whatsoever in said Civil Case No. 67496. Pending the determination of this case this Court issued a writ
of preliminary injunction restraining the respondent Judge from executing, enforcing and/or implementing the
questioned order in Civil Case No. 67496 and from proceeding with said case.

Petitioner Martin Alagao, head of the counter-intelligence unit of the Manila Police Department, acting
upon a reliable information received on November 3, 1966 to the effect that a certain shipment of personal
effects, allegedly misdeclared and undervalued, would be released the following day from the customs zone of
the port of Manila and loaded on two trucks, and upon orders of petitioner Ricardo Papa, Chief of Police of
Manila and a duly deputized agent of the Bureau of Customs, conducted surveillance at gate No. 1 of the
customs zone. When the trucks left gate No. 1 at about 4:30 in the afternoon of November 4, 1966, elements of
the counter-intelligence unit went after the trucks and intercepted them at the Agrifina Circle, Ermita, Manila.
The load of the two trucks consisting of nine bales of goods, and the two trucks, were seized on instructions of
the Chief of Police. Upon investigation, a person claimed ownership of the goods and showed to the policemen a
"Statement and Receipts of Duties Collected in Informal Entry No. 147-5501", issued by the Bureau of Customs
in the name of a certain Bienvenido Naguit.

Claiming to have been prejudiced by the seizure and detention of the two trucks and their cargo,
Remedios Mago and Valentin B. Lanopa filed with the Court of First Instance of Manila a petition
"for mandamus with restraining order or preliminary injunction, docketed as Civil Case No. 67496, alleging,
among others, that Remedios Mago was the owner of the goods seized, having purchased them from the Sta.
Monica Grocery in San Fernando, Pampanga; that she hired the trucks owned by Valentin Lanopa to transport,
the goods from said place to her residence at 1657 Laon Laan St., Sampaloc, Manila; that the goods were
seized by members of the Manila Police Department without search warrant issued by a competent court; that
anila Chief of Police Ricardo Papa denied the request of counsel for Remedios Mago that the bales be not
opened and the goods contained therein be not examined; that then Customs Commissioner Jacinto Gavino had
illegally assigned appraisers to examine the goods because the goods were no longer under the control and
supervision of the Commissioner of Customs; that the goods, even assuming them to have been misdeclared
and, undervalued, were not subject to seizure under Section 2531 of the Tariff and Customs Code because
Remedios Mago had bought them from another person without knowledge that they were imported illegally;
that the bales had not yet been opened, although Chief of Police Papa had arranged with the Commissioner of
Customs regarding the disposition of the goods, and that unless restrained their constitutional rights would be
violated and they would truly suffer irreparable injury. Hence, Remedios Mago and Valentin Lanopa prayed for
the issuance of a restraining order, ex parte, enjoining the above-named police and customs authorities, or
their agents, from opening the bales and examining the goods, and a writ of mandamus for the return of the
goods and the trucks, as well as a judgment for actual, moral and exemplary damages in their favor.

On November 10, 1966, respondent Judge Hilarion Jarencio issued an order ex parte restraining the
respondents in Civil Case No. 67496 now petitioners in the instant case before this Court from opening the
nine bales in question, and at the same time set the hearing of the petition for preliminary injunction on
November 16, 1966. However, when the restraining order was received by herein petitioners, some bales had
32
already been opened by the examiners of the Bureau of Customs in the presence of officials of the Manila Police
Department, an assistant city fiscal and a representative of herein respondent Remedios Mago.

Under date of November 15, 1966, Remedios Mago filed an amended petition in Civil Case No. 67496,
including as party defendants Collector of Customs Pedro Pacis of the Port of Manila and Lt. Martin Alagao of the
Manila Police Department. Herein petitioners (defendants below) filed, on November 24, 1966, their "Answer
with Opposition to the Issuance of a Writ of Preliminary Injunction", denying the alleged illegality of the seizure
and detention of the goods and the trucks and of their other actuations, and alleging special and affirmative
defenses, to wit: that the Court of First Instance of Manila had no jurisdiction to try the case; that the case fell
within the exclusive jurisdiction of the Court of Tax Appeals; that, assuming that the court had jurisdiction over
the case, the petition stated no cause of action in view of the failure of Remedios Mago to exhaust the
administrative remedies provided for in the Tariff and Customs Code; that the Bureau of Customs had not lost
jurisdiction over the goods because the full duties and charges thereon had not been paid; that the members of
the Manila Police Department had the power to make the seizure; that the seizure was not unreasonable; and
the persons deputized under Section 2203 (c) of the Tariff and Customs Code could effect search, seizures and
arrests in inland places in connection with the enforcement of the said Code. In opposing the issuance of the
writ of preliminary injunction, herein petitioners averred in the court below that the writ could not be granted
for the reason that Remedios Mago was not entitled to the main reliefs she prayed for; that the release of the
goods, which were subject to seizure proceedings under the Tariff and Customs Code, would deprive the Bureau
of Customs of the authority to forfeit them; and that Remedios Mago and Valentin Lanopa would not suffer
irreparable injury. Herein petitioners prayed the court below for the lifting of the restraining order, for the denial
of the issuance of the writ of preliminary injunction, and for the dismissal of the case.

At the hearing on December 9, 1966, the lower Court, with the conformity of the parties, ordered that an
inventory of the goods be made by its clerk of court in the presence of the representatives of the claimant of
the goods, the Bureau of Customs, and the Anti-Smuggling Center of the Manila Police Department. On
December 13, 1966, the above-named persons filed a "Compliance" itemizing the contents of the nine bales.

Herein respondent Remedios Mago, on December 23, 1966, filed an ex parte motion to release the
goods, alleging that since the inventory of the goods seized did not show any article of prohibited importation,
the same should be released as per agreement of the patties upon her posting of the appropriate bond that may
be determined by the court. Herein petitioners filed their opposition to the motion, alleging that the court had
no jurisdiction to order the release of the goods in view of the fact that the court had no jurisdiction over the
case, and that most of the goods, as shown in the inventory, were not declared and were, therefore, subject to
forfeiture. A supplemental opposition was filed by herein petitioners on January 19, 1967, alleging that on
January 12, 1967 seizure proceedings against the goods had been instituted by the Collector of Customs of the
Port of Manila, and the determination of all questions affecting the disposal of property proceeded against in
seizure and forfeiture proceedings should thereby be left to the Collector of Customs. On January 30, 1967,
herein petitioners filed a manifestation that the estimated duties, taxes and other charges due on the goods
amounted to P95,772.00. On February 2, 1967, herein respondent Remedios Mago filed an urgent manifestation
and reiteration of the motion for the release under bond of the goods.

On March 7, 1967, the respondent Judge issued an order releasing the goods to herein respondent
Remedios Mago upon her filing of a bond in the amount of P40,000.00, and on March 13, 1967, said respondent
filed the corresponding bond.

On March 13, 1967, herein petitioner Ricardo Papa, on his own behalf, filed a motion for reconsideration
of the order of the court releasing the goods under bond, upon the ground that the Manila Police Department
had been directed by the Collector of Customs of the Port of Manila to hold the goods pending termination of
the seizure proceedings.

Without waiting for the court's action on the motion for reconsideration, and alleging that they had no
plain, speedy and adequate remedy in the ordinary course of law, herein petitioners filed the present action for
prohibition and certiorari with preliminary injunction before this Court. In their petition petitioners alleged,
among others, that the respondent Judge acted without jurisdiction in ordering the release to respondent
Remedios Mago of the disputed goods, for the following reasons:
(1) the Court of First Instance of Manila, presided by respondent Judge, had no jurisdiction over the
case;
(2) respondent Remedios Mago had no cause of action in Civil Case No. 67496 of the Court of First
Instance of Manila due to her failure to exhaust all administrative remedies before invoking judicial
intervention;
33
(3) the Government was not estopped by the negligent and/or illegal acts of its agent in not collecting
the correct taxes; and
(4) the bond fixed by respondent Judge for the release of the goods was grossly insufficient.

In due time, the respondents filed their answer to the petition for prohibition and certiorari in this case.
In their answer, respondents alleged, among others:
(1) that it was within the jurisdiction of the lower court presided by respondent Judge to hear and decide
Civil Case No. 67496 and to issue the questioned order of March 7, 1967, because said Civil Case No.
67496 was instituted long before seizure, and identification proceedings against the nine bales of goods
in question were instituted by the Collector of Customs;
(2) that petitioners could no longer go after the goods in question after the corresponding duties and
taxes had been paid and said goods had left the customs premises and were no longer within the control
of the Bureau of Customs;
(3) that respondent Remedios Mago was purchaser in good faith of the goods in question so that those
goods can not be the subject of seizure and forfeiture proceedings;
(4) that the seizure of the goods was affected by members of the Manila Police Department at a place
outside control of jurisdiction of the Bureau of Customs and affected without any search warrant or a
warrant of seizure and detention;
(5) that the warrant of seizure and detention subsequently issued by the Collector of Customs is illegal
and unconstitutional, it not being issued by a judge;
(6) that the seizing officers have no authority to seize the goods in question because they are not
articles of prohibited importation;
(7) that petitioners are estopped to institute the present action because they had agreed before the
respondent Judge that they would not interpose any objection to the release of the goods under bond to
answer for whatever duties and taxes the said goods may still be liable; and
(8) that the bond for the release of the goods was sufficient.

The principal issue in the instant case is whether or not, the respondent Judge had acted with jurisdiction
in issuing the order of March 7, 1967 releasing the goods in question.

The Bureau of Customs has the duties, powers and jurisdiction, among others,
(1) to assess and collect all lawful revenues from imported articles, and all other dues, fees, charges, fines and
penalties, accruing under the tariff and customs laws;
(2) to prevent and suppress smuggling and other frauds upon the customs; and
(3) to enforce tariff and customs laws.
1

The goods in question were imported from Hongkong, as shown in the "Statement and Receipts of
Duties Collected on Informal Entry".
2
As long as the importation has not been terminated the imported goods
remain under the jurisdiction of the Bureau of customs. Importation is deemed terminated only upon the
payment of the duties, taxes and other charges upon the articles, or secured to be paid, at the port of entry and
the legal permit for withdrawal shall have been granted.
3
The payment of the duties, taxes, fees and other
charges must be in full.
4

The record shows, by comparing the articles and duties stated in the aforesaid "Statement and Receipts
of Duties Collected on Informal Entry" with the manifestation of the Office of the Solicitor General
5
wherein it is
stated that the estimated duties, taxes and other charges on the goods subject of this case amounted to
P95,772.00 as evidenced by the report of the appraiser of the Bureau of Customs, that the duties, taxes and
other charges had not been paid in full. Furthermore, a comparison of the goods on which duties had been
assessed, as shown in the "Statement and Receipts of Duties Collected on Informal Entry" and the "compliance"
itemizing the articles found in the bales upon examination and inventory,
6
shows that the quantity of the goods
was underdeclared, presumably to avoid the payment of duties thereon. For example, Annex B (the statement
and receipts of duties collected) states that there were 40 pieces of ladies' sweaters, whereas Annex H (the
inventory contained in the "compliance") states that in bale No. 1 alone there were 42 dozens and 1 piece of
ladies' sweaters of assorted colors; in Annex B, only 100 pieces of watch bands were assessed, but in Annex H,
there were in bale No. 2, 209 dozens and 5 pieces of men's metal watch bands (white) and 120 dozens of men's
metal watch band (gold color), and in bale No. 7, 320 dozens of men's metal watch bands (gold color); in
Annex B, 20 dozens only of men's handkerchief were declared, but in Annex H it appears that there were 224
dozens of said goods in bale No. 2, 120 dozens in bale No. 6, 380 dozens in bale No. 7, 220 dozens in bale No.
8, and another 200 dozens in bale No. 9. The articles contained in the nine bales in question, were, therefore,
subject to forfeiture under Section 2530, pars. e and m, (1), (3), (4), and (5) of the Tariff and Customs Code.
34
And this Court has held that merchandise, the importation of which is effected contrary to law, is subject to
forfeiture,
7
and that goods released contrary to law are subject to seizure and forfeiture.
8

Even if it be granted, arguendo, that after the goods in question had been brought out of the customs
area the Bureau of Customs had lost jurisdiction over the same, nevertheless, when said goods were
intercepted at the Agrifina Circle on November 4, 1966 by members of the Manila Police Department, acting
under directions and orders of their Chief, Ricardo C. Papa, who had been formally deputized by the
Commissioner of Customs,
9
the Bureau of Customs had regained jurisdiction and custody of the goods. Section
1206 of the Tariff and Customs Code imposes upon the Collector of Customs the duty to hold possession of all
imported articles upon which duties, taxes, and other charges have not been paid or secured to be paid, and to
dispose of the same according to law. The goods in question, therefore, were under the custody and at the
disposal of the Bureau of Customs at the time the petition for mandamus, docketed as Civil Case No. 67496,
was filed in the Court of First Instance of Manila on November 9, 1966. The Court of First Instance of Manila,
therefore, could not exercise jurisdiction over said goods even if the warrant of seizure and detention of the
goods for the purposes of the seizure and forfeiture proceedings had not yet been issued by the Collector of
Customs.

The ruling in the case of "Alberto de Joya, et al. v. Hon. Gregorio Lantin, et al.," G.R. No. L-24037,
decided by this Court on April 27, 1967, is squarely applicable to the instant case. In the De Joya case, it
appears that Francindy Commercial of Manila bought from Ernerose Commercial of Cebu City 90 bales of
assorted textiles and rags, valued at P117,731.00, which had been imported and entered thru the port of Cebu.
Ernerose Commercial shipped the goods to Manila on board an inter-island vessel. When the goods where about
to leave the customs premises in Manila, on October 6, 1964, the customs authorities held them for further
verification, and upon examination the goods were found to be different from the declaration in the cargo
manifest of the carrying vessel. Francindy Commercial subsequently demanded from the customs authorities
the release of the goods, asserting that it is a purchaser in good faith of those goods; that a local purchaser was
involved so the Bureau of Customs had no right to examine the goods; and that the goods came from a
coastwise port. On October 26, 1964, Francindy Commercial filed in the Court of First Instance of Manila a
petition for mandamus against the Commissioner of Customs and the Collector of Customs of the port of Manila
to compel said customs authorities to release the goods.

Francindy Commercial alleged in its petition for mandamus that the Bureau of Customs had no
jurisdiction over the goods because the same were not imported to the port of Manila; that it was not liable for
duties and taxes because the transaction was not an original importation; that the goods were not in the hands
of the importer nor subject to importer's control, nor were the goods imported contrary to law with its
(Francindy Commercial's) knowledge; and that the importation had been terminated. On November 12, 1964,
the Collector of Customs of Manila issued a warrant of seizure and identification against the goods. On
December 3, 1964, the Commissioner of Customs and the Collector of Customs, as respondents in
the mandamus case, filed a motion to dismiss the petition on the grounds of lack of jurisdiction, lack of cause of
action, and in view of the pending seizure and forfeiture proceedings. The Court of First Instance held resolution
on the motion to dismiss in abeyance pending decision on the merits. On December 14, 1964, the Court of First
Instance of Manila issued a preventive and mandatory injunction, on prayer by Francindy Commercial, upon a
bond of P20,000.00. The Commissioner of Customs and the Collector of Customs sought the lifting of the
preliminary and mandatory injunction, and the resolution of their motion to dismiss. The Court of First Instance
of Manila, however, on January 12, 1965, ordered them to comply with the preliminary and mandatory
injunction, upon the filing by Francindy Commercial of an additional bond of P50,000.00. Said customs
authorities thereupon filed with this Court, on January 14, 1965, a petition for certiorari and prohibition with
preliminary injunction. In resolving the question raised in that case, this Court held:

This petition raises two related issues: first, has the Customs bureau jurisdiction to seize the
goods and institute forfeiture proceedings against them? and (2) has the Court of First Instance
jurisdiction to entertain the petition for mandamus to compel the Customs authorities to release the
goods?

Francindy Commercial contends that since the petition in the Court of first Instance was filed (on
October 26, 1964) ahead of the issuance of the Customs warrant of seizure and forfeiture (on November
12, 1964),the Customs bureau should yield the jurisdiction of the said court.

The record shows, however, that the goods in question were actually seized on October 6, 1964,
i.e., before Francindy Commercial sued in court. The purpose of the seizure by the Customs bureau was
to verify whether or not Custom duties and taxes were paid for their importation. Hence, on December
35
23, 1964, Customs released 22 bales thereof, for the same were found to have been released regularly
from the Cebu Port (Petition Annex "L"). As to goods imported illegally or released irregularly from
Customs custody, these are subject to seizure under Section 2530 m. of the Tariff and Customs Code
(RA 1957).

The Bureau of Customs has jurisdiction and power, among others to collect revenues from
imported articles, fines and penalties and suppress smuggling and other frauds on customs; and to
enforce tariff and customs laws (Sec. 602, Republic Act 1957).

The goods in question are imported articles entered at the Port of Cebu. Should they be found to
have been released irregularly from Customs custody in Cebu City, they are subject to seizure and
forfeiture, the proceedings for which comes within the jurisdiction of the Bureau of Customs pursuant to
Republic Act 1937.
Said proceeding should be followed; the owner of the goods may set up defenses therein (Pacis
v. Averia, L-22526, Nov. 20, 1966.) From the decision of the Commissioner of Customs appeal lies to
the Court of Tax Appeals, as provided in Sec. 2402 of Republic Act 1937 and Sec. 11 of Republic Act,
1125. To permit recourse to the Court of First Instance in cases of seizure of imported goods would in
effect render ineffective the power of the Customs authorities under the Tariff and Customs Code and
deprive the Court of Tax Appeals of one of its exclusive appellate jurisdictions. As this Court has ruled in
Pacis v. Averia,supra, Republic Acts 1937 and 1125 vest jurisdiction over seizure and forfeiture
proceedings exclusively upon the Bureau of Customs and the Court of Tax Appeals. Such law being
special in nature, while the Judiciary Act defining the jurisdiction of Courts of First Instance is a general
legislation, not to mention that the former are later enactments, the Court of First Instance should yield
to the jurisdiction of the Customs authorities.

It is the settled rule, therefore, that the Bureau of Customs acquires exclusive jurisdiction over imported
goods, for the purposes of enforcement of the customs laws, from the moment the goods are actually in its
possession or control, even if no warrant of seizure or detention had previously been issued by the Collector of
Customs in connection with seizure and forfeiture proceedings. In the present case, the Bureau of Customs
actually seized the goods in question on November 4, 1966, and so from that date the Bureau of Customs
acquired jurisdiction over the goods for the purposes of the enforcement of the tariff and customs laws, to the
exclusion of the regular courts. Much less then would the Court of First Instance of Manila have jurisdiction over
the goods in question after the Collector of Customs had issued the warrant of seizure and detention on January
12, 1967.
10
And so, it cannot be said, as respondents contend, that the issuance of said warrant was only an
attempt to divest the respondent Judge of jurisdiction over the subject matter of the case. The court presided
by respondent Judge did not acquire jurisdiction over the goods in question when the petition
for mandamus was filed before it, and so there was no need of divesting it of jurisdiction. Not having acquired
jurisdiction over the goods, it follows that the Court of First Instance of Manila had no jurisdiction to issue the
questioned order of March 7, 1967 releasing said goods.

Respondents also aver that petitioner Martin Alagao, an officer of the Manila Police Department, could
not seize the goods in question without a search warrant. This contention cannot be sustained. The Chief of the
Manila Police Department, Ricardo G. Papa, having been deputized in writing by the Commissioner of Customs,
could, for the purposes of the enforcement of the customs and tariff laws, effect searches, seizures, and
arrests,
11
and it was his duty to make seizure, among others, of any cargo, articles or other movable property
when the same may be subject to forfeiture or liable for any fine imposed under customs and tariff laws.
12
He
could lawfully open and examine any box, trunk, envelope or other container wherever found when he had
reasonable cause to suspect the presence therein of dutiable articles introduced into the Philippines contrary to
law; and likewise to stop, search and examine any vehicle, beast or person reasonably suspected of holding or
conveying such article as aforesaid.
13
It cannot be doubted, therefore, that petitioner Ricardo G. Papa, Chief of
Police of Manila, could lawfully effect the search and seizure of the goods in question. The Tariff and Customs
Code authorizes him to demand assistance of any police officer to effect said search and seizure, and the latter
has the legal duty to render said assistance.
14
This was what happened precisely in the case of Lt. Martin
Alagao who, with his unit, made the search and seizure of the two trucks loaded with the nine bales of goods in
question at the Agrifina Circle. He was given authority by the Chief of Police to make the interception of the
cargo.
15

Petitioner Martin Alagao and his companion policemen had authority to effect the seizure without any
search warrant issued by a competent court. The Tariff and Customs Code does not require said warrant in the
instant case. The Code authorizes persons having police authority under Section 2203 of the Tariff and Customs
Code to enter, pass through or search any land, inclosure, warehouse, store or building, not being a dwelling
36
house; and also to inspect, search and examine any vessel or aircraft and any trunk, package, 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, without mentioning
the need of a search warrant in said cases.
16
But in the search of a dwelling house, the Code provides that said
"dwelling house may be entered and searched only upon warrant issued by a judge or justice of the peace. . .
."
17
It is our considered view, therefor, that except in the case of the search of a dwelling house, persons
exercising police authority under the customs law may effect search and seizure without a search warrant in the
enforcement of customs laws.

Our conclusion finds support in the case of Carroll v. United States, 39 A.L.R., 790, 799, wherein the
court, considering a legal provision similar to Section 2211 of the Philippine Tariff and Customs Code, said as
follows:

Thus contemporaneously with the adoption of the 4th Amendment, we find in the first Congress,
and in the following second and fourth Congresses, a difference made as to the necessity for a search
warrant between goods subject to forfeiture, when concealed in a dwelling house of similar place, and
like goods in course of transportation and concealed in a movable vessel, where readily they could be
put out of reach of a search warrant. . . .

Again, by the 2d section of the Act of March 3, 1815 (3 Stat. at L.231, 232, chap. 94), it was
made lawful for customs officers not only to board and search vessels within their own and adjoining
districts, but also to stop, search and examine any vehicle, beast or person on which or whom they
should suspect there was merchandise which was subject to duty, or had been introduced into the
United States in any manner contrary to law, whether by the person in charge of the vehicle or beast or
otherwise, and if they should find any goods, wares, or merchandise thereon, which they had probably
cause to believe had been so unlawfully brought into the country, to seize and secure the same, and the
vehicle or beast as well, for trial and forfeiture. This Act was renewed April 27, 1816 (3 Sta. at L. 315,
chap. 100), for a year and expired. The Act of February 28, 1865, revived 2 of the Act of 1815, above
described, chap. 67, 13 Stat. at L. 441. The substance of this section was re-enacted in the 3d section of
the Act of July 18, 1866, chap. 201, 14 Stat. at L. 178, and was thereafter embodied in the Revised
Statutes as 3061, Comp. Stat. 5763, 2 Fed. Stat. Anno. 2d ed. p. 1161. Neither 3061 nor any of
its earlier counterparts has ever been attacked as unconstitutional. Indeed, that section was referred to
and treated as operative by this court in Von Cotzhausen v. Nazro, 107 U.S. 215, 219, 27 L. ed. 540,
541, 2 Sup. Ct. Rep. 503. . . .

In the instant case, we note that petitioner Martin Alagao and his companion policemen did not have to
make any search before they seized the two trucks and their cargo. In their original petition, and amended
petition, in the court below Remedios Mago and Valentin Lanopa did not even allege that there was a
search.
18
All that they complained of was,

That while the trucks were on their way, they were intercepted without any search warrant near
the Agrifina Circle and taken to the Manila Police Department, where they were detained.

But even if there was a search, there is still authority to the effect that no search warrant would be
needed under the circumstances obtaining in the instant case. Thus, it has been held that:
The guaranty of freedom from unreasonable searches and seizures is construed as recognizing a
necessary difference between a search of a dwelling house or other structure in respect of which a
search warrant may readily be obtained and a search of a ship, motorboat, wagon, or automobile for
contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly
moved out of the locality or jurisdiction in which the warrant must be sought. (47 Am. Jur., pp. 513-
514, citing Carroll v. United States, 267 U.S. 132, 69 L. ed., 543, 45 S. Ct., 280, 39 A.L.R., 790; People
v. Case, 320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686.)

In the case of People v. Case (320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686), the question raised by
defendant's counsel was whether an automobile truck or an automobile could be searched without search
warrant or other process and the goods therein seized used afterwards as evidence in a trial for violation of the
prohibition laws of the State. Same counsel contended the negative, urging the constitutional provision
forbidding unreasonable searches and seizures. The Court said:

. . . Neither our state nor the Federal Constitution directly prohibits search and seizure without a
warrant, as is sometimes asserted. Only "unreasonable" search and seizure is forbidden. . . .
37

. . . The question whether a seizure or a search is unreasonable in the language of the
Constitution is a judicial and not a legislative question; but in determining whether a seizure is or is not
unreasonable, all of the circumstances under which it is made must be looked to.

The automobile is a swift and powerful vehicle of recent development, which has multiplied by
quantity production and taken possession of our highways in battalions until the slower, animal-drawn
vehicles, with their easily noted individuality, are rare. Constructed as covered vehicles to standard form
in immense quantities, and with a capacity for speed rivaling express trains, they furnish for successful
commission of crime a disguising means of silent approach and swift escape unknown in the history of
the world before their advent. The question of their police control and reasonable search on highways or
other public places is a serious question far deeper and broader than their use in so-called "bootleging"
or "rum running," which is itself is no small matter. While a possession in the sense of private
ownership, they are but a vehicle constructed for travel and transportation on highways. Their active use
is not in homes or on private premises, the privacy of which the law especially guards from search and
seizure without process. The baffling extent to which they are successfully utilized to facilitate
commission of crime of all degrees, from those against morality, chastity, and decency, to robbery,
rape, burglary, and murder, is a matter of common knowledge. Upon that problem a condition, and not
a theory, confronts proper administration of our criminal laws. Whether search of and seizure from an
automobile upon a highway or other public place without a search warrant is unreasonable is in its final
analysis to be determined as a judicial question in view of all the circumstances under which it is made.

Having declared that the seizure by the members of the Manila Police Department of the goods in
question was in accordance with law and by that seizure the Bureau of Customs had acquired jurisdiction over
the goods for the purpose of the enforcement of the customs and tariff laws, to the exclusion of the Court of
First Instance of Manila, We have thus resolved the principal and decisive issue in the present case. We do not
consider it necessary, for the purposes of this decision, to discuss the incidental issues raised by the parties in
their pleadings.

WHEREFORE, judgment is hereby rendered, as follows:
(a) Granting the writ of certiorari and prohibition prayed for by petitioners;
(b) Declaring null and void, for having been issued without jurisdiction, the order of respondent Judge
Hilarion U. Jarencio, dated March 7, 1967, in Civil Code No. 67496 of the Court of First Instance of Manila;
(c) Declaring permanent the preliminary injunction issued by this Court on March 31, 1967 restraining
respondent Judge from executing, enforcing and/or implementing his order of March 7, 1967 in Civil Case No.
67496 of the Court of First Instance of Manila, and from proceeding in any manner in said case;
(d) Ordering the dismissal of Civil Case No. 67496 of the Court of First Instance of Manila;
and1wph1.t
(e) Ordering the private respondent, Remedios Mago, to pay the costs.
It is so ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Sanchez, Castro, Angeles and Fernando, JJ.,
concur.1wph1.t
Footnotes












38
5
G.R. No. 85401-02 June 4, 1990
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROSALINDA RAMOS y DAVID, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Romeo C. Alinea for defendant-appellant.

GUTIERREZ, JR., J.:
Appellant Rosalinda Ramos seeks the reversal of the decisions of the Regional Trial Court, Branch 73, Third
Judicial Region at Olongapo City, finding her guilty beyond reasonable doubt in Criminal Case No. 5990 for
violating Section 8 of Republic Act No. 6425 (Dangerous Drugs Act of 1972 as amended) and in Criminal Case
No. 5991 for violating Section 4 of the same Act and sentencing her to:
1) Imprisonment of six (6) years and one (1) day and a fine of P6,000.00 in Criminal Case No.
5990; and
2) Life imprisonment and a fine of P20,000.00 in Criminal Case No. 5991.

The two informations filed against the appellant respectively alleged:
Criminal Case No. 5990
That on or about the 29th day of November, 1982 in the City of Olongapo, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused without being lawfully
authorized, did then and there wilfully, unlawfully and knowingly have in his/her/their person,
possession and control twenty (20) sticks of marijuana cigarettes.

Criminal Case No. 5991
That on or about the 29th day of November, 1982 in the City of Olongapo, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, without being lawfully
authorized, did then and there wilfully, unlawfully and knowingly engage in selling, delivering,
giving away to another and distributing four (4) sticks of marijuana cigarettes which is/are
prohibited drug(s). (Rollo, p. 68)

The prosecution's version of the facts, as summarized by the Solicitor-General, is as follows:
On November 29,1982, at around 7:00 o'clock in the evening, a civilian informer came to the
Narcotics Command Office in Olongapo City and reported that a cigarette vendor by the name of
'Mama Rose' was selling marijuana at the comer of 3rd Street and Rizal Avenue in Olongapo City
(TSN, pp. 4-5, 13, May 4, 1984; pp. 3-4, 11, April 9, 1986). Captain Castillo instructed the
informant to conduct a test buy. He gave to the informant two (2) five-peso bills, noting first the
serial numbers in his pocket note (TSN, pp. 5,14-15, May 4, 1984; p. 4, April 9, 1986). The
informer left and after thirty (30) minutes came back and gave to Captain Castillo two (2) sticks
of marijuana cigarettes (Exhibit 'C-2') which he bought from appellant. Captain Castillo again
instructed the informer to make another test buy from the suspect. From his wallet, Captain
Castillo extracted another two (2) five-peso bills and before handing the same to the informer,
recorded the serial numbers in his pocket note (TSN, pp. 19-21, May 4, 1984).

A team composed of Captain Castillo, Sgt. Tahil Ahamad, CIC Danilo Santiago and Angel Sudiacal
left with the informer. The informer proceeded to where appellant was selling cigarettes to
conduct the next test buy while the NARCOM agents waited at the Black and White Open Bar
located at 7th Street, Rizal Avenue, Olongapo City (TSN, pp. 6-7, April 9, 1986). The bar was
about three (3) blocks away from the place where appellant was selling cigarettes (TSN, pp. 19,
8, Id.). After forty-five (45) minutes more or less, the informer arrived at the Black and White
Bar and again gave to Captain Castillo two (2) sticks of marijuana (Exhibit 'C-l'; TSN, p. 23, May
4, 1984; p. 6, April 9,1986).

The team then proceeded to the place where appellant was selling cigarettes. After Identifying
themselves as NARCOM agents, Capt. Castillo told appellant that she was being placed under
arrest for illegal peddling of marijuana. Appellant was requested to take out the contents of her
wallet (TSN, pp. 6-7, April 9, 1986, The four marked five- peso bills were found among her
possessions and were confiscated after the serial numbers were confirmed by Captain Castillo
from his record (TSN, pp. 23-25, May 4, 1984). The initial of Sgt. Tahil Ahamad was also found
39
from the confiscated five- peso bills (TSN, p. 9, April 9, 1986). Sgt. Ahamad searched the stall of
appellant and found twenty (20) sticks of marijuana cigarettes in a trash can placed under the
small table where appellant displayed the wares she was selling (TSN, p. 7, April 9, 1986).
Appellant was thereafter brought to the station (TSN, p. 23, May 4, 1984).
At the station, appellant executed a statement confessing to her crimes which she swore to
before Assistant City Fiscal Domingo Cabali, Jr. (TSN, pp. 5-6. June 20,1984; Exhibit 'G').

The marijuana sticks confiscated were sent to the Philippine Constabulary Crime Laboratory
(PCCL) for analysis. These were confirmed to be marijuana as evidenced by the Chemistry
Report No. MD-363-82 of Marlene Salangad, a Forensic Chemist of the PCCL (See Exhibit 'B';
TSN, p. 3, Jan. 13, 1986). (Rollo, pp. 92-94)

On the other hand, the version of the appellant as summarized by the trial court, is as follows:
... [O]n November 29, 1982, between 9:00 and 10:00 o'clock in the evening she was at the corner of
3rd St., and Rizal Avenue, West Tapinac, Olongapo City, selling cigarettes and fruits; that she does
not have any table, all she had was a small wooden 'papag' to show her wares and sell them; that she
was sitting on the small 'papag' when Capt. Castillo came and introduced himself followed by three or
four others who were more or less 6 to 8 meters away. She was surprised why they were there, and
that she was invited by Capt. Castillo to the NARCOM office for investigation to which invitation she
said 'yes' after which she was taken to the NARCOM office. Before she was taken thereto, the other
men searched the buri bags where she used to place her fruits (records does (sic) not show what
fruits she was selling) and also her small cigarettes (sic) stand; that they did not find anything under
the 'papag; that when she was ordered to board the car, Castillo told her 'sakay na ho, Mama Rose'
(please board now, Mama Rose'); that she was told to bring along her cigarette stand; that inside her
brown wallet, she has fifty (P 50.00) pesos consisting of five pesos and ten pesos; that it was Sudiacal
who took her wallet and Sudiacal took five (5) peso bills and told her that four (4) five peso bills are
the same money which was used to buy marijuana from her; that she told the officer that the money
was hers as she has been saving some for the rentals. She claimed that she affixed her signatures on
the four (4) five peso bills because she was forced by Tahil Ahamad by saying 'Mama Rose', you sign
this, if you are not going to sign this, something will happen to you, you will get hurt'; that because
she is an old woman, she got scared so she signed. When Tahil Ahamad told her to sign, Ahamad was
tailing to her in a normal manner and seated in front of her; that she cannot remember having signed
anything because she was nervous, Capt. Castillo investigated her and thereafter was brought to the
Fiscal's Office. She signed a document at the Fiscal's Office; that she was asked if the contents of the
document is (sic) true to which she answered 'No, sir; that she was not assisted by a counsel while
being investigated. She also testified that she stayed at Narcom for five (5) days; that Capt. Castillo
alone investigated her for four (4) hours and that she likewise was not assisted by counsel at the
Fiscal's Office. She claimed that when she was told by the Fiscal to just sign the document, Fiscal
Cabali did not say anything when she said that the contents of the document are not true. (Rollo, pp.
72)

Appellant raises the following assignment of errors:
I
THE FINDINGS OF FACTS ARE SO UNCLEAR AND DOUBTFUL, MAKING THE CONCLUSIONS OF THE
TRIAL COURT WITHOUT FACTUAL AND LEGAL LEG TO STAND ON.
II
THE EVIDENCE OBTAINED AND THE PERSON ARRESTED WITHOUT THE BENEFIT OF A WARRANT OF
ARREST AND SEIZURE MAY NOT BE USED AGAINST THE ACCUSED AND ANY CONVICTION FROM
SUCH EVIDENCE IS NOT VALID AND A GROUND FOR REVERSAL.
III
THE TRIAL COURT RELIED HEAVILY ON THE CONFESSION OF THE APPELLANT AND THE CONFESSION
WAS EXTRACTED IN VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHTS 'TO REMAIN SILENT AND
TO COUNSEL'.
IV
WHEN NOT ALL THE ELEMENTS OF THE OFFENSE ARE PRESENT AND PROVEN, CONVICTION IS NOT
PROPER.
V
THE REQUISITES IN ORDER TO CONVICT ON CIRCUMSTANTIAL EVIDENCE ARE NOT PRESENT AND
NOT COMPLIED WITH. (Rollo, p. 59)

At the outset, it may be observed that two informations were filed against the appellant and the lower court
imposed two sentences on appellant, one for sale and the other for possession of marijuana. This Court must
emphasize that, assuming arguendo, the findings of guilt for both offenses are correct, the trial judge
40
nevertheless erred in imposing a separate sentence for possession because possession of marijuana is inherent
in the crime of selling them. (People v. de Jesus, 145 SCRA 521 [1986]; People v. Andiza, 164 SCRA 642
[1988])

After a careful scrutiny of the records, this Court holds that appellant's guilt in Criminal Case No. 5991 (sale of
marijuana) has not been proven beyond reasonable doubt.

First, the extrajudicial confession extracted from the accused on November 29, 1982 is inadmissible in evidence
for being violative of the Constitutional mandate that any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain silent and to have competent and independent
counsel preferably of his own choice. (Art. III, Section 12(l), Constitution)

The preliminary statement read to the appellant when her sworn statement was executed appears as follows:
SALAYSAY NA KUSANG LOOB NA IBINIBIGAY NI ROSALINDA RAMOS Y DAVID KAY CAPTAIN ARTURO
M. CASTILLO PC SA HARAP NI SGT. TAHIL AHAMAD DITO SA HIMPILAN NG CANU, OLONGAPO CITY,
NGAYON 29 NG BUWAN NG NOBYEMBRE 1982.
TAGASIYASAT: Gng. Rosalinda Ramos, ikaw ay nasa ilalim ng isang pagsisiyasat ukol sa paglabag sa
ipinagbabawal na gamot. Bago kita tanungin ay nais kong malaman mo ang iyong mga karapatan sa
ating bagong saligang batas at ito ay ang mga sumusunod:
1 Ikaw ay may karapatan na huwag sumagot sa aking mga itatanong sa iyo sa pagsisiyasat na ito,
2. Ikaw ay may karapatan na kumuha ng isang abogado upang makatulong sa iyo sa pagsisiyasat na
ito at
3. Ano man ang iyong sasabihin sa pagsisiyasat na ito ay maaaring gamitin laban or pabor sa iyo saan
mang hukuman dito sa ating bansa.
TANONG: Ngayon alam no na ang iyong mga karapatan sa ating bagong saligang batas ikaw ba ay
kusang loob na magbibigay ng isang salaysay na pawang katotohanan at pawang katotohanan lamang
sa pagsisiyasat na ito?;
SAGOT: Opo. (Exhibit G)

This Court finds that such recital of rights falls short of the requirement on proper apprisal of constitutional
rights. We quote the ruling in People v. Nicandro (141 SCRA 289 [1986]):
When the Constitution requires a person under investigation 'to be informed' of his right to remain
silent and to counsel, it must be presumed to contemplate the transmission of meaningful information
rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. As a
rule, therefore, it would not be sufficient for a police officer just to repeat to the person under
investigation the provisions of Section 20, Article IV of the Constitution. He is not only duty- bound to
tell the person the rights to which the latter is entitled; he must also explain their effects in practical
terms, e.g., what the person under interrogation may or may not do, and in a language the subject
fairly understands. In other words, the right of a person under interrogation 'to be informed implies a
correlative obligation on the part of the police investigator to explain, and contemplates an effective
communication that results in understanding what is conveyed. Short of this, there is a denial of the
right , as it cannot truly be said that the person has been 'informed' of his rights. Now, since the right
'to be informed implies comprehension, the degree of explanation required will necessary vary,
depending upon the education, intelligence and other relevant personal circumstances of the person
under investigation. Suffice it to say that a simpler and more lucid explanation is needed where the
subject is unlettered.

Although the right to counsel is a right that may be waived, such waiver must be voluntary, knowing and
intelligent (People v. Caguioa, 95 SCRA 2 [1980]).

To insure that a waiver is voluntary and intelligent, the Constitution now requires; that for the right to counsel
to be waived, the waiver must be in writing and in the presence of the counsel of the accused. (Art. III, Section
12(l), Constitution) There is no such written waiver in this case, much less was any waiver made in the
presence of counsel.

Fiscal Cabali, who administered the oath on the appellant's extrajudicial confession, and the police officers who
took it down should know by now that the procedure they followed results in incompetent evidence. If the
purpose is to get proof which can stand up in court, they should follow the requirements of the Constitution.

Second, the alleged poseur-buyer, who also happens to be the alleged informant, was never presented during
trial. The presence and Identity of the poseur-buyer is vital to the case as his very existence is being disputed
by the accused-appellant who denies having sold marijuana cigarettes to anyone. (People v. Ale, 145 SCRA 50
41
[1986]) Without the testimony of the poseur-buyer, there is no convincing evidence pointing to the accused as
having sold marijuana. (People v. Fernando, 145 SCRA 151 [1986]) In this case, the alleged informant and the
alleged poseur-buyer are one and the same person. We realize that narcotics agents often have to keep their
Identities and those of their informants confidential. For a prosecution involving the sale or distribution of drugs
to prosper in this particular case, however, the informant has to testify. The testimony of the poseur-buyer is
rendered compelling by the fact that the police officers were situated three blocks away from where the alleged
sale took place. They did not see the actual sale of marijuana. Thus, Sit. Sudiacal testified:
Q Before you arrested the accused, where did you position yourselves?
A We were at the Black and White Open Bar, sir.
Q How far is that from the place where the accused was selling cigarettes?
A It is about three blocks, sir.
Q You did not actually see the accused selling marijuana?
A Yes, Sir ...," (TSN, May 4, 1984, p. 8)
xxx xxx xxx
Q Did you actually see the buying of the marijuana?
A No, Mam.
Q So, you did not see anything?
A Yes, Mam.
Q None of the three of you, Sgt. Sudiacal and Captain Castillo witnessed the actual
buy of the three sticks of marijuana?
A Yes, Mam.
Q Your basis of the alleged buy by the informant is his word that he bought it from the
suspect?
A Yes, Mam. (TSN, April 9, 1986, pp. 125-126)

It is a known fact that drug dealings are hard to prove in court. Precisely because of this difficulty, buy-bust
operations have to be conducted and every effort is taken such that the suspected pusher is caught in flagrante
selling prohibited drugs. For the culprit to be convicted, the element of sale must be unequivocally established.
In this case, the alleged poseur-buyer who could have categorically asserted that she bought marijuana from
the appellant was not presented by the prosecution. And Sgts. Ahamad and Sudiacal could not attest to the fact
of sale because they were three blocks away. The sale of marijuana was therefore not positively proven.

Despite the absence of the testimony of the poseur-buyer, the court a quo, however, relied on circumstantial
evidence in concluding that there was indeed a sale:
In this case, the accused admitted that she was the only one selling cigarettes at the corner of 3rd
Street; the informant told the NARCOM Officers that their 'suspect' is a cigarette vendor positioned
thereat. The two (2) 'test buy' yielded positive results as the informant was able to buy four (4)
handrolled sticks of marijuana cigarettes from her, two at a time. The accused did not ask the reason
why when she was invited for investigation. This act negates innocence and against human nature,
especially after having introduced themselves as NARCOM agents. In her control and possession,
twenty (20) sticks of similar handrolled marijuana cigarettes were recovered from a trash can under
her small table. Her counsel on cross-examination asked Sgt. Tahil Ahamad the following (TSN, April
9, 1986, p. 14) 'and in order to search that trash can under the table, you have to ask or request
'Mama Rose' to get out of the way in order to check the contents of the waste can?' The question was
answered, 'We asked permission from her to stand up so we can look into the contents of her small
table, sir.
When investigated, the accused gave her statement which in fact was a confession where she
admitted having sold marijuana cigarettes. She was taken before the Fiscal to subscribe the same.
While she alleged that she told the Fiscal (Fiscal Cabali) that the contents of her statement are not
true, why then did she sign it before the said Fiscal? Why did she not insist that her denial be
registered on the document so as to repudiate it? Fear could not be a valid reason as she has already
boldly spoken out when she said the contents were not true. The 'marked money' were recovered
from her possession. She did not deny that the four (4) five peso bills were taken from her wallet. She
was addressed as 'Mama Rose' not once but twice by the apprehending officers. Her counsel during
the cross-examination of the prosecution witnesses and direct examination of the accused called and
addressed her as 'Mama Rose', and the informant Identified her not only as Rosalinda Ramos but also
as 'Mama Rose'. (At pp. 73-74, Rollo)

This Court finds that the cited circumstantial evidence do not establish beyond reasonable doubt that there was
a sale of marijuana. Considering the severe penalty of reclusion perpetua imposed on those who sell or
distribute drugs, we have to insure that evidence of culpability must pass the test of the strictest scrutiny. We
also have to take into account the oftrepeated defense in violations of the Dangerous Drugs Act that the drugs
or the marked money were planted by police officers. More direct and positive evidence is essential.
42

The failure of the appellant to ask why she was being invited for investigation by the NARCOM officers does
notipso facto indicate her guilt. Fear could have, prevented her from propounding inquiries to the officers.
Nor does the fact that' marked money was found in her possession show incontrovertibly that she is the seller
of marijuana. The appellant is a cigarette vendor. By the nature of her job, there is a constant exchange of
goods for money. It may be far- fetched but it is possible that she came into possession of the marked money
because she accepted it in the course of legitimate sales of cigarettes. Again, it is only the poseur-buyer who
could testify that she gave marked money to the appellant in exchange for marijuana sticks.

The fact that the appellant signed the extrajudicial confession despite her insistence that its contents were not
true does not necessarily signify guilt. As earlier stated the extra-judicial confession cannot be accepted as
evidence. It is useless for purposes of proof of sale of prohibited drugs.
Lastly, this Court fails to see how, from her being addressed as Mama Rose by the witnesses and appellant's
counsel and the alleged informant poseur-buyer, the sale of marijuana can be inferred.

Rule 133, Section 6 of the Rules of Court provides:
Circumstantial evidence is sufficient for conviction if:
(a) There is more than one circumstance;
(b) The facts from which the inference are derived are proven; and
(c) The combination of all the circumstances is such as to produce a conviction beyond a
reasonable doubt.

For not successfully meeting the above requirements, the enumerated circumstantial evidence cannot be a
ground for conviction for the sale of marijuana.

With respect to Criminal Case No., 5990, however, this Court upholds the lower court's finding that the
appellant is guilty of possession of marijuana.

Rule 113 Section 6 (b) of the 1985 Rules of Criminal Procedure provides:
SEC. 6. Arrest without warrant. when lawful. A peace officer or a private person may,
without a warrant, arrest a person:
(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.

Meanwhile, Section 12 of Rule 126 states:
SEC. 12. Search incident to a lawful arrest. A person lawfully arrested may be searched for
dangerous weapons or anything which may be used as proof of the commission of an offense,
without a search warrant.

Sgts. Sudiacal and Ahamad testified that there was an informant who apprised them of the presence of a drug
pusher at the comer of 3rd Street and Rizal Avenue, Olongapo City. Acting on such information and in their
presence, their superior, Captain Castillo, gave the informant marked money to buy marijuana. The informant,
now turned poseur-buyer, returned with two sticks of marijuana. Captain Castillo again gave said informant
marked money to purchase :marijuana. The informant-poseur buyer thereafter returned with another two sticks
of marijuana. The police officers then proceeded to the corner of 3rd Street and Rizal Avenue and effected the
arrest of appellant.
From the above facts, it may be concluded that the arresting police officers had personal knowledge of facts
implicating the appellant with the sale of marijuana to the informant-poseur buyer. We hold therefore that the
arrest was legal and the consequent search which yielded 20 sticks of marijuana was lawful for being incident to
a valid arrest.

The fact that the prosecution failed to prove the sale of marijuana beyond reasonable doubt does not undermine
the legality of the appellant's arrest.

It is not necessary that the crime should have been established as a fact in order to regard the detention as
legal. The legality of detention does not depend upon the actual commission of the crime, but upon the nature
of the deed when such characterization may reasonably be inferred by the officer or functionary to who in the
law at the moment leaves the decision for the urgent purpose of suspending the liberty of the citizen (People v.
Molleda, 86 SCRA 667 [1978]).

43
The obligation to make an arrest by reason of a crime does not presuppose as a necessary requisite for the
fulfillment thereof the indubitable existence of a crime (People v. Ancheta, 68 Phil. 415 [1939]).

The appellant argues that if the twenty sticks of marijuana were in a trash can and it was not shown by clear
and convincing evidence that the said trash can belongs to the appellant, then she cannot be considered as
being in possession of marijuana.

In disposing of this contention, this Court quotes with approval the following arguments of the Solicitor-General:
Appellant's defense falls against the categorical testimony of the NARCOM agents that the trash can
was found under the table where her legitimate wares were being sold. This fact was not denied by
appellant. Therefore, she was the only person who had access to the trash can. The same was under
her immediate physical control. She had complete charge of the contents of the trash can under the
table to the exclusion of all other persons. In law, actual possession exists when the thing is in the
immediate occupancy and control of the party. But this is not to say that the law requires actual
possession. In criminal law, possession necessary for conviction of the offense of possession of
controlled substances with intent to distribute may be constructive as well as actual (Black's Law
Dictionary, Abridge, 5th Edition, pp. 606-607). It is only necessary that the defendant must have
dominion and control over the contraband. These requirements are present in the situation described,
where the prohibited drugs were found inside the trash can placed under the stall owned by appellant.
In fact, the NARCOM agents who conducted the search testified that they had to ask appellant to
stand so that they could look inside the trash can under the 'papag' of the appellant. Hence the trash
can was positioned in such a way that it was difficult for another person to use the trash can. The
trash can was obviously not for use by her customers.
Appellant's arguments are inherently weak and improbable and cannot stand against the clear
evidence pointing to her actual possession of the prohibited drug. The raw facts testified to by the
NARCOM agents were corroborated by appellant and their conclusion-that she had possession of the
marijuana sticks found in the trash can- is consistent with law and reason.

Appellant further contends that it is hard to believe that she would keep the marijuana sticks in a
trash can since it is a precious commodity to pushers and users thereof.
The above argument is misleading. The value of the marijuana is not the primary consideration in the
concealment of the contraband. The primary consideration is escaping detection and arrest. Obviously,
the modus operandi was to dissimulate the act of selling and possession of marijuana sticks which
carries the capital penalty (sic). Appellant could not display it among her regular wares of cigarettes
and fruits for sale. She had to hide them from public view, but near enough to have access to them.
The trash can, to her thinking, would be the last place to look for the precious commodity.
Unfortunately, she was found out. The argument that it was an 'unlikely place' to hide the precious
contraband is in fact the very consideration in choosing it as the hiding place for the contraband. (At
pp. 97-100, Rollo)

We rule, therefore, that the twenty sticks of marijuana are admissible in evidence and the trial court's finding
that the appellant is guilty of possession is correct.

The lower court, however, erred in imposing a fixed penalty of six (6) years and one (1) day for possession of
marijuana. Section 1 of the Indeterminate Sentence Law (Republic Act 4103 as amended) provides that in
imposing a prison sentence for an offense 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 said law and the minimum which shall not be less than the minimum term prescribed by the same. The
penalty prescribed by the Dangerous Drugs Act for possession of marijuana is imprisonment ranging from six
(6) years and one (1) day to twelve (12) years and a fine ranging from P6,000 to P12,000.

WHEREFORE, the appealed decision in Criminal Case No. 5990 is AFFIRMED but MODIFIED. The appellant is
sentenced to suffer the penalty of imprisonment ranging from six (6) years and one (1) day to nine (9) years
and to pay a fine of six thousand (P 6,000) pesos. The appealed decision in Criminal Case No. 5991 is
REVERSED and SET ASIDE and the appellant is acquitted on grounds of reasonable doubt.

SO ORDERED.
Fernan, C.J. (Chairman), Feliciano and Bidin, JJ., concur.




44
6
G.R. No. 123595 December 12, 1997
SAMMY MALACAT y MANDAR, petitioner,
vs.
COURT OF APPEALS, and PEOPLE OF THE PHILIPPINES, respondents.

DAVIDE, JR., J.:
In an Information
1
filed on 30 August 1990, in Criminal Case No. 90-86748 before the Regional Trial Court
(RTC) of Manila, Branch 5, petitioner Sammy Malacat y Mandar was charged with violating Section 3 of
Presidential Decree No. 1866,
2
as follows:
That on or about August 27, 1990, in the City of Manila, Philippines, the said accused did then
and there willfully, unlawfully and knowingly keep, possess and/or acquire a hand grenade,
without first securing the necessary license and/or permit therefor from the proper authorities.

At arraignment
3
on 9 October 1990, petitioner, assisted by counsel de oficio, entered a plea of not guilty.
At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits "A," "A-1," and "A-2,"
4
while the
prosecution admitted that the police authorities were not armed with a search warrant nor warrant of arrest at
the time they arrested petitioner.
5

At trial on the merits, the prosecution presented the following police officers as its witnesses: Rodolfo Yu, the
arresting officer; Josefino G. Serapio, the investigating officer; and Orlando Ramilo, who examined the grenade.

Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated National Police, Police
Station No. 3, Quiapo, Manila, testified that on 27 August 1990, at about 6:30 p.m., in response to bomb
threats reported seven days earlier, he was on foot patrol with three other police officers (all of them in
uniform) along Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store at Plaza Miranda. They chanced
upon two groups of Muslim-looking men, with each group, comprised of three to four men, posted at opposite
sides of the corner of Quezon Boulevard near the Mercury Drug Store. These men were acting suspiciously with
"[t]heir eyes. . . moving very fast."
6

Yu and his companions positioned themselves at strategic points and observed both groups for about thirty
minutes. The police officers then approached one group of men, who then fled in different directions. As the
policemen gave chase, Yu caught up with and apprehended petitioner. Upon searching petitioner, Yu found a
fragmentation grenade tucked inside petitioner's "front waist line."
7
Yu's companion, police officer Rogelio
Malibiran, apprehended Abdul Casan from whom a .38 caliber revolver was recovered. Petitioner and Casan
were then brought to Police Station No. 3 where Yu placed an "X" mark at the bottom of the grenade and
thereafter gave it to his commander.
8

On cross-examination, Yu declared that they conducted the foot patrol due to a report that a group of Muslims
was going to explode a grenade somewhere in the vicinity of Plaza Miranda. Yu recognized petitioner as the
previous Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw petitioner and 2 others attempt to
detonate a grenade. The attempt was aborted when Yu and other policemen chased petitioner and his
companions; however, the former were unable to catch any of the latter. Yu further admitted that petitioner
and Casan were merely standing on the corner of Quezon Boulevard when Yu saw them on 27 August 1990.
Although they were not creating a commotion, since they were supposedly acting suspiciously, Yu and his
companions approached them. Yu did not issue any receipt for the grenade he allegedly recovered from
petitioner.
9

Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner and a certain Abdul Casan
were brought in by Sgt. Saquilla
10
for investigation. Forthwith, Serapio conducted the inquest of the two
suspects, informing them of their rights to remain silent and to be assisted by competent and independent
counsel. Despite Serapio's advice, petitioner and Casan manifested their willingness to answer questions even
without the assistance of a lawyer. Serapio then took petitioner's uncounselled confession (Exh. "E"), there
being no PAO lawyer available, wherein petitioner admitted possession of the grenade. Thereafter, Serapio
prepared the affidavit of arrest and booking sheet of petitioner and Casan. Later, Serapio turned over the
grenade to the Intelligence and Special Action Division (ISAD) of the Explosive Ordinance Disposal Unit for
examination.
11

On cross-examination, Serapio admitted that he took petitioner's confession knowing it was inadmissible in
evidence.
12
45

Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties included, among other things, the
examination of explosive devices, testified that on 22 March 1991, he received a request dated 19 March 1991
from Lt. Eduardo Cabrera and PO Diosdado Diotoy for examination of a grenade. Ramilo then affixed an orange
tag on the subject grenade detailing his name, the date and time he received the specimen. During the
preliminary examination of the grenade, he "[f]ound that [the] major components consisting of [a] high filler
and fuse assembly [were] all present," and concluded that the grenade was "[l]ive and capable of exploding."
On even date, he issued a certification stating his findings, a copy of which he forwarded to Diotoy on 11 August
1991.
13

Petitioner was the lone defense witness. He declared that he arrived in Manila on 22 July 1990 and resided at
the Muslim Center in Quiapo, Manila. At around 6:30 in the evening of 27 August 1990, he went to Plaza
Miranda to catch a breath of fresh air. Shortly after, several policemen arrived and ordered all males to stand
aside. The policemen searched petitioner and two other men, but found nothing in their possession. However,
he was arrested with two others, brought to and detained at Precinct No. 3, where he was accused of having
shot a police officer. The officer showed the gunshot wounds he allegedly sustained and shouted at petitioner
"[i]to ang tama mo sa akin." This officer then inserted the muzzle of his gun into petitioner's mouth and said,
"[y]ou are the one who shot me." Petitioner denied the charges and explained that he only recently arrived in
Manila. However, several other police officers mauled him, hitting him with benches and guns. Petitioner was
once again searched, but nothing was found on him. He saw the grenade only in court when it was
presented.
14

The trial court ruled that the warrantless search and seizure of petitioner was akin to it a "stop and frisk," where
a "warrant and seizure can be effected without necessarily being preceded by an arrest" and "whose object is
either to maintain the status quo momentarily while the police officer seeks to obtain more
information."
15
Probable cause was not required as it was not certain that a crime had been committed,
however, the situation called for an investigation, hence to require probable cause would have been
"premature."
16
The RTC emphasized that Yu and his companions were "[c]onfronted with an emergency, in
which the delay necessary to obtain a warrant, threatens the destruction of evidence"
17
and the officers "[h]ad
to act in haste," as petitioner and his companions were acting suspiciously, considering the time, place and
"reported cases of bombing." Further, petitioner's group suddenly ran away in different directions as they saw
the arresting officers approach, thus "[i]t is reasonable for an officer to conduct a limited search, the purpose of
which is not necessarily to discover evidence of a crime, but to allow the officer to pursue his investigation
without fear of violence."
18

The trial court then ruled that the seizure of the grenade from petitioner was incidental to a lawful arrest, and
since petitioner "[l]ater voluntarily admitted such fact to the police investigator for the purpose of bombing the
Mercury Drug Store," concluded that sufficient evidence existed to establish petitioner's guilt beyond reasonable
doubt.

In its decision
19
dated 10 February 1994 but promulgated on 15 February 1994, the trial court thus found
petitioner guilty of the crime of illegal possession of explosives under Section 3 of P.D. No. 186, and sentenced
him to suffer:
[T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY
OFRECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION
PERPETUA, as maximum.

On 18 February 1994, petitioner filed a notice of appeal
20
indicating that he was appealing to this Court.
However, the record of the case was forwarded to the Court of Appeals which docketed it as CA-G.R. CR No.
15988 and issued a notice to file briefs.
21

In his Appellant's Brief
22
filed with the Court of Appeals, petitioner asserted that:
1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH UPON THE PERSON
OF ACCUSED-APPELLANT AND THE SEIZURE OF THE ALLEGED HANDGRENADE
FROM HIM "WAS AN APPROPRIATE INCIDENT TO HIS ARREST."
2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE AGAINST ACCUSED-
APPELLANT THE HANDGRENADE ALLEGEDLY SEIZED FROM HIM AS IT WAS A
PRODUCT OF AN UNREASONABLE AND ILLEGAL SEARCH.

In sum, petitioner argued that the warrantless arrest was invalid due to absence of any of the conditions
provided for in Section 5 of Rule 113 of the Rules of Court, citing People vs. Mengote.
23
As such, the search
was illegal, and the hand grenade seized, inadmissible in evidence.
46
In its Brief for the Appellee, the Office of the Solicitor General agreed with the trial court and prayed that its
decision be affirmed in toto.
24

In its decision of 24 January 1996,
25
the Court of Appeals affirmed the trial court, noting, first, that petitioner
abandoned his original theory before the court a quo that the grenade was "planted" by the police officers; and
second, the factual finding of the trial court that the grenade was seized from petitioner's possession was not
raised as an issue. Further, respondent court focused on the admissibility in evidence of Exhibit "D," the hand
grenade seized from petitioner. Meeting the issue squarely, the Court of Appeals ruled that the arrest was lawful
on the ground that there was probable cause for the arrest as petitioner was "attempting to commit an
offense," thus:
We are at a loss to understand how a man, who was in possession of a live grenade and in the
company of other suspicious character[s] with unlicensed firearm[s] lurking in Plaza Miranda at a
time when political tension ha[d] been enkindling a series of terroristic activities, [can] claim that
he was not attempting to commit an offense. We need not mention that Plaza Miranda is
historically notorious for being a favorite bomb site especially during times of political upheaval.
As the mere possession of an unlicensed grenade is by itself an offense, Malacat's posture is
simply too preposterous to inspire belief.

In so doing, the Court of Appeals took into account petitioner's failure to rebut the testimony of the prosecution
witnesses that they received intelligence reports of a bomb threat at Plaza Miranda; the fact that PO Yu chased
petitioner two days prior to the latter's arrest, or on 27 August 1990; and that petitioner and his companions
acted suspiciously, the "accumulation" of which was more than sufficient to convince a reasonable man that an
offense was about to be committed. Moreover, the Court of Appeals observed:
The police officers in such a volatile situation would be guilty of gross negligence and dereliction
of duty, not to mention of gross incompetence, if they [would] first wait for Malacat to hurl the
grenade, and kill several innocent persons while maiming numerous others, before arriving at
what would then be an assured but moot conclusion that there was indeed probable cause for an
arrest. We are in agreement with the lower court in saying that the probable cause in such a
situation should not be the kind of proof necessary to convict, but rather the practical
considerations of everyday life on which a reasonable and prudent mind, and not legal
technicians, will ordinarily act.

Finally, the Court of Appeals held that the rule laid down in People v. Mengote,
26
which petitioner relied upon,
was inapplicable in light of "[c]rucial differences," to wit:
[In Mengote] the police officers never received any intelligence report that someone [at] the
corner of a busy street [would] be in possession of a prohibited article. Here the police officers
were responding to a [sic] public clamor to put a check on the series of terroristic bombings in
the Metropolis, and, after receiving intelligence reports about a bomb threat aimed at the vicinity
of the historically notorious Plaza Miranda, they conducted foot patrols for about seven days to
observe suspicious movements in the area. Furthermore, in Mengote, the police officers [had] no
personal knowledge that the person arrested has committed, is actually committing, or is
attempting to commit an offense. Here, PO3 Yu [had] personal knowledge of the fact that he
chased Malacat in Plaza Miranda two days before he finally succeeded in apprehending him.

Unable to accept his conviction, petitioner forthwith filed the instant petition and assigns the following errors:
1. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF THE TRIAL
COURT THAT THE WARRANTIES ARREST OF PETITIONER WAS VALID AND LEGAL.
2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING IN PEOPLE
VS. MENGOTE DOES NOT FIND APPLICATION IN THE INSTANT CASE.
In support thereof, petitioner merely restates his arguments below regarding the validity of the
warrantless arrest and search, then disagrees with the finding of the Court of Appeals that he was
"attempting to commit a crime," as the evidence for the prosecution merely disclosed that he was
"standing at the corner of Plaza Miranda and Quezon Boulevard" with his eyes "moving very fast" and
"looking at every person that come (sic) nearer (sic) to them." Finally, petitioner points out the factual
similarities between his case and that of People v. Mengote to demonstrate that the Court of Appeals
miscomprehended the latter.

In its Comment, the Office of the Solicitor General prays that we affirm the challenged decision..
For being impressed with merit, we resolved to give due course to the petition.
The challenged decision must immediately fall on jurisdictional grounds. To repeat, the penalty imposed by the
trial court was:
47
[N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION
TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as
maximum.
The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall unlawfully possess
grenades is reclusion temporal in its maximum period to reclusion perpetua.

For purposes of determining appellate jurisdiction in criminal cases, the maximum of the penalty, and not the
minimum, is taken into account. Since the maximum of the penalty is reclusion perpetua, the appeal therefrom
should have been to us, and not the Court of Appeals, pursuant to Section 9(3) of the Judiciary Reorganization
Act of 1980 (B.P. Blg. 129),
27
in relation to Section 17 of the Judiciary Act of 1948,
28
Section 5(2) of Article
VIII of the Constitution
29
and Section 3(c) of Rule 122 of the Rules of Court.
30
The term "life imprisonment" as
used in Section 9 of B.P. Blg. 129, the Judiciary Act of 1948, and Section 3 of Rule 122 must be deemed to
include reclusion perpetua in view of Section 5(2) of Article VIII of the Constitution.

Petitioner's Notice of Appeal indicated that he was appealing from the trial court's decision to this Court, yet the
trial court transmitted the record to the Court of Appeals and the latter proceeded to resolve the appeal.

We then set aside the decision of the Court of Appeals for having been rendered without jurisdiction, and
consider the appeal as having been directly brought to us, with the petition for review as petitioner's Brief for
the Appellant, the comment thereon by the Office of the Solicitor General as the Brief for the Appellee and the
memoranda of the parties as their Supplemental Briefs.
Deliberating on the foregoing pleadings, we find ourselves convinced that the prosecution failed to establish
petitioner's guilt with moral certainty.

First, serious doubt surrounds the story of police officer Yu that a grenade was found in and seized from
petitioner's possession. Notably, Yu did not identify, in court, the grenade he allegedly seized. According to him,
he turned it over to his commander after putting an "X" mark at its bottom; however, the commander was not
presented to corroborate this claim. On the other hand, the grenade presented in court and identified by police
officer Ramilo referred to what the latter received from Lt. Eduardo Cabrera and police officer Diotoy not
immediately after petitioner's arrest, but nearly seven (7) months later, or on 19 March 1991; further, there
was no evidence whatsoever that what Ramilo received was the very same grenade seized from petitioner. In
his testimony, Yu never declared that the grenade passed on to Ramilo was the grenade the former confiscated
from petitioner. Yu did not, and was not made to, identify the grenade examined by Ramilo, and the latter did
not claim that the grenade he examined was that seized from petitioner. Plainly, the law enforcement
authorities failed to safeguard and preserve the chain of evidence so crucial in cases such as these.

Second, if indeed petitioner had a grenade with him, and that two days earlier he was with a group about to
detonate an explosive at Plaza Miranda, and Yu and his fellow officers chased, but failed to arrest them, then
considering that Yu and his three fellow officers were in uniform and therefore easily cognizable as police
officers, it was then unnatural and against common experience that petitioner simply stood there in proximity to
the police officers. Note that Yu observed petitioner for thirty minutes and must have been close enough to
petitioner in order to discern petitioner's eyes "moving very fast."

Finally, even assuming that petitioner admitted possession of the grenade during his custodial investigation by
police officer Serapio, such admission was inadmissible in evidence for it was taken in palpable violation of
Section 12(1) and (3) of Article III of the Constitution, which provide as follows:
Sec. 12 (1). Any person under investigation for the commission of an offense shall have the right
to be informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the presence of
counsel.
xxx xxx xxx
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
Serapio conducted the custodial investigation on petitioner the day following his arrest. No lawyer was
present and Serapio could not have requested a lawyer to assist petitioner as no PAO lawyer was then
available. Thus, even if petitioner consented to the investigation and waived his rights to remain silent
and to counsel, the waiver was invalid as it was not in writing, neither was it executed in the presence of
counsel.

48
Even granting ex gratia that petitioner was in possession of a grenade, the arrest and search of petitioner were
invalid, as will be discussed below.
The general rule as regards arrests, searches and seizures is that a warrant is needed in order to validly effect
the same.
31
The Constitutional prohibition against unreasonable arrests, searches and seizures refers to those
effected without a validly issued warrant,
32
subject to certain exceptions. As regards valid warrantless arrests,
these are found in Section 5, Rule 113 of the Rules of Court, which reads, in part:
Sec. 5. Arrest, without warrant; when lawful A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped . . .
A warrantless arrest under the circumstances contemplated under Section 5(a) has been denominated
as one "in flagrante delicto," while that under Section 5(b) has been described as a "hot pursuit" arrest.

Turning to valid warrantless searches, they are limited to the following:
(1) customs searches;
(2) search of moving vehicles;
(3) seizure of evidence in plain view;
(4) consent searches;
33

(5) a search incidental to a lawful arrest;
34
and
(6) a "stop and frisk."
35

In the instant petition, the trial court validated the warrantless search as a "stop and frisk" with "the seizure of
the grenade from the accused [as an appropriate incident to his arrest," hence necessitating a brief discussion
on the nature of these exceptions to the warrant requirement.
At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a search incidental
to a lawful arrest. These two types of warrantless searches differ in terms of the requisite quantum of proof
before they may be validly effected and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search,
the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely
used as a pretext for conducting a search.
36
In this instance, the law requires that there first be a lawful arrest
before a search can be made the process cannot be reversed.
37
At bottom, assuming a valid arrest, the
arresting officer may search the person of the arrestee and the area within which the latter may reach for a
weapon or for evidence to destroy, and seize any money or property found which was used in the commission
of the crime, or the fruit of the crime, or that which may be used as evidence, or which might furnish the
arrestee with the means of escaping or committing violence.
38

Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in light of
the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on the part of
petitioner, indicating that a crime had just been committed, was being committed or was going to be
committed.

Having thus shown the invalidity of the warrantless arrest in this case, plainly, the search conducted on
petitioner could not have been one incidental to a lawful arrest.

We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited protective search
of outer clothing for weapons," as laid down in Terry, thus:
We merely hold today that where a police officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may be afoot and that the
persons with whom he is dealing may be armed and presently dangerous, where in the course of
investigating this behavior he identifies himself as a policeman and makes reasonable inquiries,
and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for
his own or others' safety, he is entitled for the protection of himself and others in the area to
conduct a carefully limited search of the outer clothing of such persons in an attempt to discover
weapons which might be used to assault him. Such a search is a reasonable search under the
Fourth Amendment . . .
39

Other notable points of Terry are that while probable cause is not required to conduct a "stop and
frisk,"
40
it nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A
49
genuine reason must exist, in light of the police officer's experience and surrounding conditions, to
warrant the belief that the person detained has weapons concealed about him.
41
Finally, a "stop-and-
frisk" serves a two-fold interest: (1) the general interest of effective crime prevention and detection,
which underlies the recognition that a police officer may, under appropriate circumstances and in an
appropriate manner, approach a person for purposes of investigating possible criminal behavior even
without probable cause; and (2) the more pressing interest of safety and self-preservation which permit
the police officer to take steps to assure himself that the person with whom he deals is not armed with a
deadly weapon that could unexpectedly and fatally be used against the police officer.

Here, there are at least three (3) reasons why the "stop-and-frisk" was invalid:
First, we harbor grave doubts as to Yu's claim that petitioner was a member of the group which attempted to
bomb Plaza Miranda two days earlier. This claim is neither supported by any police report or record nor
corroborated by any other police officer who allegedly chased that group. Aside from impairing Yu's credibility
as a witness, this likewise diminishes the probability that a genuine reason existed so as to arrest and search
petitioner. If only to further tarnish the credibility of Yu's testimony, contrary to his claim that petitioner and his
companions had to be chased before being apprehended, the affidavit of arrest (Exh. "A") expressly declares
otherwise, i.e., upon arrival of five (5) other police officers, petitioner and his companions were "immediately
collared."

Second, there was nothing in petitioner's behavior or conduct which could have reasonably elicited even mere
suspicion other than that his eyes were "moving very fast" an observation which leaves us incredulous since
Yu and his teammates were nowhere near petitioner and it was already 6:30 p.m., thus presumably dusk.
Petitioner and his companions were merely standing at the corner and were not creating any commotion or
trouble, as Yu explicitly declared on cross-examination:
Q And what were they doing?
A They were merely standing.
Q You are sure of that?
A Yes, sir.
Q And when you saw them standing, there were nothing or they did not create
any commotion.
A None, sir.
Q Neither did you see them create commotion?
A None, sir.
42

Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly
weapon. None was visible to Yu, for as he admitted, the alleged grenade was "discovered" "inside the front
waistline" of petitioner, and from all indications as to the distance between Yu and petitioner, any telltale bulge,
assuming that petitioner was indeed hiding a grenade, could not have been visible to Yu. In fact, as noted by
the trial court:
When the policemen approached the accused and his companions, they were not yet aware that
a handgrenade was tucked inside his waistline. They did not see any bulging object in [sic] his
person.
43

What is unequivocal then in this case are blatant violations of petitioner's rights solemnly guaranteed in
Sections 2 and 12(1) of Article III of the Constitution.
WHEREFORE, the challenged decision of the Seventeenth Division of the Court of Appeals in CA-G.R. CR No.
15988 is SET ASIDE for lack of jurisdiction on the part of said Court and, on ground of reasonable doubt, the
decision of 10 February 1994 of Branch 5 of the Regional Trial Court of Manila is REVERSED and petitioner
SAMMY MALACAT y MANDAR is hereby ACQUITTED and ORDERED immediately released from detention, unless
his further detention is justified for any other lawful cause.

Costs de oficio.

SO ORDERED.

Narvasa, C.J., Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco and Martinez, JJ.,
concur.




50
Separate Opinions

PANGANIBAN, J., separate opinion:
I agree with the persuasive ponencia of Mr. Justice Hilario G. Davide Jr. that:
1. the search conducted on petitioner (a) was not incidental to a lawful arrest and (b) did not constitute a valid
stop-and-frisk; thus, the grenade found in his person cannot be admitted as evidence against him; and
2. the Court of Appeals had no jurisdiction to entertain the appeal from the trial court's decision.
I wish, however, to correlate the present case with four relevant decisions I authored for the Court: Manalili
vs.Court of Appeals,
1
People vs. Encinada,
2
People vs. Lacerna
3
and People vs. Cuizon,
4
all of which were
promulgated without any dissenting view. This correlation may be of benefit to the bench, the bar and,
particularly, to law enforcement officers. Let me first present a background on each.

Manalili Involved a
Valid Stop-and-Frisk
In Manalili, anti-narcotics policemen conducted a surveillance in response to information that drug addicts were
roaming the area fronting the city cemetery of Kalookan, and chanced upon Manalili who was observed to have
reddish eyes and to be walking in a wobbly manner. Because his appearance was characteristic of a person
"high on drugs," the lawmen approached him, introduced themselves and inquired as to what was in his hands.
At first, Manalili resisted but the police prevailed and he showed them his wallet. The anti-narcotics men found
inside what they suspected to be crushed marijuana residue. They took Manalili to their station for further
investigation. A chromatographic test of the wallet contents positively affirmed the lawmen's suspicions. Manalili
was thus charged, tried and convicted of illegal possession of the prohibited substance. He subsequently
challenged before us the legality of his search and arrest, and the admission of the marijuana as evidence. He
contended that the latter two were products of the illegal search.
Rejecting his appeal, this Court held that the search was akin to a stop-and-frisk. The police had sufficient
reason to stop Manalili, who "had red eyes and was wobbling like a drunk . . . [in] a popular hangout of drug
addicts," in order to investigate if he was actually "high" on drugs. The situation verily called for a stop-and-
frisk.

Lawmen Had Sufficient Opportunity
to Secure Warrant in Encinada
In Encinada, a police officer received late in the afternoon a tip from an informant that the following morning,
appellant would be arriving at the Surigao port bringing marijuana. Without securing a search warrant allegedly
because courts were already closed for the day, the lawmen proceeded early next morning to the city wharf.
About 8:30 a.m., they saw the suspect, carrying two plastic baby chairs, disembark and thereafter board a
tricycle. The police followed immediately and ordered the driver to stop. After introducing themselves, the
policemen asked Encinada to alight and to hand over his luggage for inspection. Found between the baby chairs
was a bulky package which was later found to contain marijuana. On these particulars, he was charged, tried
and convicted by the trial court for violation of Sec. 4, Art. II of RA 6425, holding that Encinada was caught in
flagrante delicto. Hence, the warrantless search following his arrest was valid, and the marijuana seized was
admissible in evidence.
Reversing the trial court, this Court stressed the following: Encinada was not committing a crime in the
presence of the police; the latter did not have personal knowledge of facts indicating that he just committed an
offense; and raw intelligence information was not a sufficient ground for a warrantless arrest.
5
Furthermore,
"[t]he prosecution's evidence did nor show any suspicious behavior when the appellant disembarked from the
ship or while he rode the motorela. No act or fact demonstrating a felonious enterprise could be ascribed to
appellant under such bare circumstances."
6
Having known the identity of their suspect the previous day, the
law enforcers could have secured a warrant of arrest even within such limited period (per Administrative
Circular No. 13 and Circular No. 19, s. 1987). In emphasizing the importance of according respect to every
person's constitutional right against illegal arrests and searches, the Court exhorted:
Lawmen cannot be allowed to violate every law they are expected to enforce. [The policeman's]
receipt of the intelligence information regarding the culprit's identity, the particular crime he allegedly
committed and his exact whereabouts underscored the need to secure a warrant for his arrest. But he
failed to do so. Such failure or neglect cannot excuse him from violating a constitutional right of the
appellant.
7

. . . That the search disclosed a prohibited substance in appellant's possession and thus confirmed the
police officers' initial information and suspicion, did not cure its patent illegality. An illegal search
cannot be undertaken and then an arrest effected on the strength of the evidence yielded by the
search.
8

51
Consent Validated an Otherwise
Illegal Search in Lacerna
In Lacerna meanwhile, a police officer observed that the occupants of a taxicab bowed their heads and slouched
when they passed through the checkpoint he was manning, making him suspect that something was amiss. He
signaled the driver to stop, then asked permission to search the vehicle. The occupants consented. Found inside
a plastic bag were several blocks wrapped in newspaper, which were later discovered to contain marijuana.
Lacerna questioned his warrantless arrest and seizure, claiming that they were violative of his constitutional
rights.
The Court, despite declaring that the prior attendant circumstances did not justify a warrantless search and
seizure, ruled that the search was valid, not because Lacerna was caught in flagrante delicto, but because he
freely consented to the search. Although appellant and his companion were stopped by the police on mere
suspicion without probable cause that they were engaged in a felonious enterprise, the Court stressed that
their permission for the search was expressly sought and obtained by the law enforcers. This consent validated
the search, waiver being a generally recognized exception to the rule against warrantless
search.
9
The marijuana, therefore, was admissible in evidence. "There was no poisonous tree to speak of."

Mere Suspicion of Criminal Activity
Did Not Justify Search of Cuizon
Lastly, in Cuizon, the NBI, after conducting a surveillance on Cuizon for about a month, received in the morning
a tip from an informant that Cuizon and his wife were arriving at NAIA that same day, bringing a large quantity
ofshabu. A team was immediately organized and sent to the airport to intercept the suspect. Shortly after noon,
the Cuizon spouses arrived. While at the airport arrival area, Cuizon handed four travelling bags to Pua and Lee
who thereafter bearded a taxicab, while the Cuizons took a different vehicle. The NBI team members posted at
the NAIA parking area, however, failed to intercept the suspects. The team merely trailed the taxicab which
proceeded to the Manila Peninsula Hotel in Makati. After identifying themselves to the suspects in their hotel
room, the team asked permission to search their bags in the presence of the hotel's chief security officer. Pua
and Lee consented in writing. Found inside three of the four bags similar to those handed to them by Cuizon at
the airport were plastic packages of white crystalline substances which, upon later examination, were confirmed
to beshabu. Taking with them the two accused (who, however, did not implicate Cuizon), the NBI team
proceeded to the Cuizon residence where they found a bag allegedly containing the same substance. The three
were charged and convicted of illegal transport of the regulated drug. On appeal, only Cuizon challenged the
validity of his warrantless arrest, search and seizure.

Reiterating the doctrine that "where a person is searched without a warrant, and under circumstances other
than chose justifying a warrantless arrest . . . , upon a mere suspicion that he has embarked on some criminal
activity, and/or for the purpose of discovering if indeed a crime has been committed by him, then the search
made of such person as well as his arrest [is] deemed illegal,"
10
this Court declared unlawful the arrest of
Cuizon as well as the incidental search and seizure. The warrantless arrest and search were not justified by the
rules on "in flagrante delicto" or "hot pursuit" for, at the time of his arrest, Cuizon was inside his home resting
with his wife and child. No offense had just been committed or was actually being committed or attempted by
him in the presence of the lawmen, nor did the latter have personal knowledge of facts indicating that Cuizon
authored an offense that had just in fact been committed. Consequently, any evidence obtained during the
illegal search, "even if tending to confirm or actually confirming the initial suspicion, is absolutely inadmissible
for any purpose and in any proceeding, the same being 'the fruit of the poisonous tree.'"
11

The same would have been true as regards Pua and Lee. But Pua effectively waived his right against the
warrantless search when he agreed in writing for the NBI team to search his luggage. Besides, he failed to
challenge the validity of his arrest and search and the admission of the evidence obtained thereby. However,
the case against Lee, who could not speak English or Filipino, was remanded for a retrial, because he was
effectively denied his right to counsel; for although he was provided with one, he could not understand and
communicate with him concerning his defense.
After reviewing previous decisions on valid warrantless arrests and searches, the Court underscored in sum that
there was need for facts providing probable cause, such as the "distinct odor of marijuana, reports about drug
transporting or positive identification by informers, suspicious behavior, attempt to flee, [or] failure to produce
identification papers" to justify warrantless arrests and searches. Likewise, urgency must attend such arrests
and searches, as where motor vehicles are used and there is great probability that the suspect would get away
before a warrant can be procured. Most important is that the law enforcers must act immediately on the
information received, suspicions raised or probable cause established, and should effect the arrests and
searches without any delay.
12

Instant Case Correlated
with Four Cited
52
Now to the correlation with the case at bar.
(1) As in Manalili, lawmen were on surveillance in response to information that a criminal activity could be in the
offing at a specified place. The stark difference, however, is that in Manalili, the reported activity involved drug
use and the lawmen belonged to the anti-narcotics group, while in the instant case, the police on patrol were
ordinary law enforcers on the lookout for possible bombers. In the former, the law enforcers concerned may be
presumed to possess special knowledge and skill to detect the physical features exhibited by a current drug
user. Thus, when these specially trained enforcers saw Manalili with reddish eyes and walking in a wobbly
manner characteristic of a person "high" on drugs per their experience, and in a known hangout of drug users,
there was sufficient genuine reason to stop and frisk the suspect. It is well to emphasize that under different
circumstances, such as where the policemen are not specially trained, and in common places where people
ordinarily converge, the same features displayed by a person will not normally justify a warrantless arrest or
search on him.

The case before us presents such a situation. The policemen merely observed that Malacat's eyes were moving
very fast. They did not notice any bulges or packets about the bodies of these men indicating that they might
be hiding explosive paraphernalia. From their outward look, nothing suggested that they were at the time
armed and dangerous. Hence, there was no justification for a stop-and-frisk.

(2) In relation to the cases of Encinada and Cuizon, at the time of the arrests of the suspects, none of the
actions of Accused Encinada and Cuizon were beyond normal as to suggest that they were then engaged in
felonious activities. The simple handing over of the baggage by Cuizon to Pua and Lee was far from being
indicative of any illegal activity. Such act by itself does not, by any stretch of imagination, even appear to be
suspicious. Granting that indeed an offense was committed by Cuizon at the airport, his subsequent arrest
cannot even be justified under the rule on "hot pursuit." He did not attempt to flee, but was actually able to
leave the premises and reach his house unhampered by the police. There was considerable interruption between
the supposed commission of the crime and his subsequent arrest in his house where he was already resting.

Moreover, Encinada and Cuizon had been previously identified and subjected to surveillance. Police informants
themselves, presumably reliable, tipped off their alleged criminal activity. Specifically with respect to Encinada,
there was sufficient time to priorly obtain a warrant for his arrest. It must be stressed that raw unverified
intelligence information alone is not sufficient to justify a warrantless arrest or search. That is why it is
important to bring one's evidence before a judge who shall independently determine if probable cause exists for
the issuance of the warrant. It is not for the police to make such determination.

As regards Cuizon, it was, worse, the ineptness of the NBI team dispatched to intercept him which foiled his
arrest and search. In the present case, if it were true that the arresting officer saw Malacat two days earlier
attempting to detonate a grenade in the same vicinity, again it was the policemen's ineptitude that frustrated
his valid arrest there and then and, further, their inability to effectively investigate and identify the culprit so
as to have obtained a lawful arrest warrant that hindered his valid seizure thereafter.

(3) In Lacerna, true, the occupants of the taxicab bowed their heads and slouched when they passed through
the police checkpoint. Although such acts could raise suspicions, they did not provide sufficient reason for the
police to stop and investigate them for possible criminal operation; much less, to conduct an extensive search of
their belongings. A checkpoint search is limited to a roving view within the vehicle. A further search may be
validly effected only if something probably illegal is within his "plain view." In Lacerna, if not for the passengers'
free and express consent, the search would have been undoubtedly declared illegal. Similarly, the fast-moving
eyes of Malacat, although connoting unusual behavior, was not indicative that he was armed and dangerous as
to justify a search on his person.

Mengote Supports
Present Ponencia
Bolstering the invalidity of the arrest and search of Malacat is People vs. Mengote,
13
another classic on the right
against unreasonable searches and seizures. Upon receiving a telephone call shortly before noon from an
informer that there were suspicious-looking persons at a certain street corner in Tondo, Manila, the Western
Police District dispatched a surveillance team to said place. There they saw two men "looking from side to side"
with one" holding his abdomen." The police approached them and identified themselves, whereupon the two
tried to flee but failed as other lawmen surrounded them. The suspects were searched, and recovered from
Mengote was a fully loaded pistol; from his companion, a fan knife.
The Court ruled that the situation was not one calling for a lawful warrantless search and arrest. As the Court,
through Mr. Justice Isagani A. Cruz, succinctly put it: "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?"
53
. . . [T]here could have been a number of reasons, all of them innocent, why his eyes were
darting from side to side and he 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.
14

In closing, the Court lamented and thus warned:
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.
15

Under our rule in Mengote, petitioner's dubious act of moving his eyes swiftly from side to side can in no way
justify a stop-and-frisk. To convict a person on the basis only of his queer behavior and to sentence him to
practically a lifetime in prison would simply be unfathomable. Nothing can be more wrong, unjust and inhuman.

WHEREFORE, I vote to SET ASIDE the assailed decision and to ACQUIT Petitioner Sammy Malacat y Mandar.

Footnotes
1 Original Record (OR), 1.
2 Entitled Codifying the Laws on Illegal/Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition, of
Firearms, Ammunition or Explosives or Instruments used in the Manufacture of Firearms, Ammunition or
Explosives; and Imposing Stiffer Penalties for Certain Violations thereof and for Relevant Purposes.
3 OR, 9.
4 The affidavit of arrest, booking sheet and letter-referral to the prosecutor, respectively.
5 OR, 21.
6 Transcript of Stenographic Notes (TSN), 14 April 1993, 12.
7 TSN, 14 April 1993, 13.
8 TSN, 14 April 1993, 14.
9 Id., 15-21.
10 Spelled as Suquila in the Affidavit of Arrest; Exhibit A; Rollo, CA-G.R. CR No. 15988 [CA Rollo] 7.
11 TSN 14 April 1993, 3-9.
12 TSN, 14 April 1993, 9.
13 TSN, 27 October 1992, 2-5.
14 TSN, 11 June 1993, 2-5.
15 Citing Posadas v. Court of Appeals, 188 SCRA 288 [1990].
16 Citing 1 JOAQUIN G. BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES, A COMMENTARY,
124 (1987 ed.) [hereinafter 1 BERNAS].
17 Citing Schmerber v. California, 384 U.S. 757; 86 S. CT. 1826; 16 L: Ed. 2d. 908 (1966).
18 Citing ISAGANI A. CRUZ, CONSTITUTIONAL LAW 141 (1987 ed.).
19 OR, 196-200; Annex "A" [should be "E"] of Petition, Rollo, 91-95. Per Judge Cesar Mindaro.
20 OR, 208.
21 CA Rollo, 37.
22 Id., 49 et seq.
23 210 SCRA 174 [1992].
24 Id., 84-100.
25 Annex "A" of the Petition, Rollo, 34-41. Per Garcia, C., J., ponente, with Labitoria, E., and Alio-Hormachuelos,
P., JJ., concurring.
26 Supra note 23.
27 Said Section provides:
Sec. 9. Jurisdiction. The Court of Appeals shall exercise:
xxx xxx xxx
(3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or
awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards, or
commission, except those falling within the appellate jurisdiction of the Supreme Court in
accordance with the Constitution, the provisions of this Act, and of subparagraph (1) of the third
paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of
1948.
28 The Section pertinently reads:
Sec. 17. Jurisdiction of the Supreme Court. . . . The Supreme Court shall have exclusive jurisdiction to review,
revise, reverse, modify or affirm on appeal, as the law or rules of court may provide, final judgments and decrees
of inferior courts as herein provided, in
54
(1) All criminal cases involving offenses for which the penalty imposed is death or life
imprisonment; and those involving other offenses which, although not so punished, arose out of
the same occurrence or which may have been committed by the accused on the same occasion,
as that giving rise to the mere serious offense, regardless of whether the accused are charged as
principals, accomplices or accessories, or whether they have been tried jointly or separately;
xxx xxx xxx
29 The Section relevantly reads
Sec. 5. The Supreme Court shall have the following powers:
xxx xxx xxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of
Court may provide, final judgments and orders of the lower courts in:
xxx xxx xxx
(d) All criminal cases in which the penalty imposed is reclusion perpetua or
higher. . . .
30 The Section provides:
Sec. 3. How appeal taken.
xxx xxx xxx
The appeal to the Supreme Court in cases where the penalty imposed is life imprisonment, or where a lesser
penalty is imposed but involving offenses committed on the same occasion or arising out of the same occurrence
that give rise to the more serious offense for which the penalty of death or life imprisonment is imposed. . . .
31 Art. III, Section 2, Constitution.
32 See 1 BERNAS 86 (1987).
33 Mustang Lumber Inc. v. Court of Appeals, 257 SCRA 430, 450 [1996].
34 Moreno v. Ago Chi, 12 Phil. 439 (1909); Rule 126, Section 12, Rules of Court.
35 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 [1968].
36 See REX D. DAVIS, FEDERAL, SEARCHES AND SEIZURES 96-98, 120 [1964].
37 People v. Malmstedt, 198 SCRA 401, 422 [1991] per Narvasa, C.J., concurring and dissenting.
38 1 BERNAS 105.
39 Terry, at 911. In fact, the Court noted that the "sole justification" for a stop-and-frisk was the "protection of the
police officer and others nearby;" while the scope of the search conducted in the case was limited to patting down
the outer clothing of petitioner and his companions, the police officer did not place his hands in their pockets nor
under the outer surface of their garments until he had felt weapons, and then he merely reached for and removed
the guns. This did not constitute a general exploratory search, Id.
See MICHELE G. HERMANN, SEARCH AND SEIZURE CHECKLISTS 202 [1994] (hereinafter HERMANN):
"Nothing in Terry can be understood to allow a generalized cursory search for weapons or, indeed, any
search whatever for anything but weapons," quoting from Ybarra v. Illinois, 444 U.S. 85, 93-94 [1979].
40 We have held that probable cause means a fair probability that contraband or evidence of a crime will be found,
. . . and the level of suspicion required for a Terry stop is obviously less demanding than that for probable cause, in
HERMANN, at 187, quoting from United States v. Sokolow, 490 U.S. 1, 7
[1989].
Thus, it may be said that a brief on-the-street seizure does not require as much evidence of probable
cause as one which involves taking the individual to the station, as the former is relatively short, less
conspicuous, less humiliating, in 3 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE
FOURTH AMENDMENT 9.1(d), at 342 [2nd ed. 1987] (emphasis supplied).
It is necessary to determine if "stop and frisk" may be distinguished from arrest and search, knowing
that the justification of stopping and frisking is less than the probable cause to arrest and search, in 1
JOSEPH A. VARON, SEARCHES, SEIZURES AND IMMUNITIES 81 [2nd ed. 1974] (hereinafter 1 VARON)
(emphasis supplied).
41 See 1 VARON, at 84.
42 TSN, 14 April 1993, 19-20.
43 RTC Decision, 2; CA Rollo, 28.
PANGANIBAN, J., separate opinion:
1 G.R. No. 113447, October 9, 1997.
2 G.R. No. 116720, October 2, 1997.
3 G.R. No. 109250, September 5, 1997.
4 256 SCRA 325, April 18, 1996.
5 People vs. Encinada, supra, pp. 17-18.
6 Ibid., pp. 18-19.
7 Ibid., pp. 21-22.
8 Ibid., p. 24.
9 Citing People vs. Fernandez, 239 SCRA 174, December 13, 1994, Aniag Jr. vs. Comelec, 237 SCRA 424, October
7, 1994, and other cases.
10 People vs. Cuizon, supra, p. 339.
11 Ibid.
12 Ibid., pp. 346-347.
13 210 SCRA 174, June 22, 1992.
14 Ibid., p. 179.
15 Ibid., pp. 181-182.



55
7
G. R. Nos. 102009-10 July 6, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROLANDO DE GRACIA, CHITO HENSON and JOHN DOES, accused. ROLANDO DE
GRACIA, accused-appellant.
The Solicitor General for plaintiff-appellee.
Nicolas R. Ruiz, II for accused-appellant.

REGALADO, J.:
The incidents involved in this case took place at the height of the coup d' etat staged in December, 1989 by
ultra-rightist elements headed by the Reform the Armed Forces Movement-Soldiers of the Filipino People (RAM-
SFP) against the Government. At that time, various government establishments and military camps in Metro
Manila were being bombarded by the rightist group with their "tora-tora" planes. At around midnight of
November 30, 1989, the 4th Marine Battalion of the Philippine Marines occupied Villamor Air Base, while the
Scout Rangers took over the Headquarters of the Philippine Army, the Army Operations Center, and Channel 4,
the government television station. Also, some elements of the Philippine Army coming from Fort Magsaysay
occupied the Greenhills Shopping Center in San Juan, Metro Manila.
1

Accused-appellant Rolando de Gracia was charged in two separate informations for illegal possession of
ammunition and explosives in furtherance of rebellion, and for attempted homicide, docketed as Criminal Cases
Nos. Q-90-11755 and Q-90-11756, respectively, which were tried jointly by the Regional Trial Court of Quezon
City, Branch 103.

In Criminal Case No. Q-90-11755, Rolando de Gracia, Chito Henson and several John Does whose true names
and identities have not as yet been ascertained, were charged with the crime of illegal possession of
ammunition and explosives in furtherance of rebellion, penalized under Section 1, paragraph 3, of Presidential
Decree No. 1866, allegedly committed as follows:
That on or about the 5th day of DECEMBER, 1989, in QUEZON CITY, METRO MANILA,
PHILIPPINES, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together and mutually helping one another, and without authority
of law, did then and there willfully, unlawfully, feloniously and knowingly have in their
possession, custody and control, the following to wit:
Five (5) bundles of C-4 or dynamites
Six (6) cartoons of M-16 ammunition at 20 each
One hundred (100) bottles of MOLOTOV bombs
without first securing the necessary license and/or permit to possess the same from the proper
authorities, and armed with said dynamites, ammunition and explosives and pursuant to their
conspiracy heretofore agreed upon by them and prompted by common designs, come to an
agreement and decision to commit the crime of rebellion, by then and there participating therein
and publicly taking arms against the duly constituted authorities, for the purpose of overthrowing
the Government of the Republic of the Philippines, disrupting and jeopardizing its activities and
removing from its allegiance the territory of the Philippines or parts thereof.
2

In Criminal Case No. Q-90-11756, Rolando de Gracia, Chito Henson, Lamberto Bicus, Rodolfo Tor and several
John Does were charged with attempted homicide allegedly committed on December 1, 1989 in Quezon City
upon the person of Crispin Sagario who was shot and hit on the right thigh.
Appellant was convicted for illegal possession of firearms in furtherance of rebellion, but was acquitted of
attempted homicide.

During the arraignment, appellant pleaded not guilty to both charges. However, he admitted that he is not
authorized to possess any firearms, ammunition and/or explosive.
3
The parties likewise stipulated that there
was a rebellion during the period from November 30 up to December 9, 1989.
4

The records show that in the early morning of December 1, 1989, Maj. Efren Soria of the Intelligence Division,
National Capital Region Defense Command, was on board a brown Toyota car conducting a surveillance of the
Eurocar Sales Office located at Epifanio de los Santos Avenue in Quezon City, together with his team composed
of Sgt. Crispin Sagario, M/Sgt. Ramon Briones, S/Sgt. Henry Aquino, one S/Sgt. Simon and a Sgt. Ramos. The
surveillance, which actually started on the night of November 30, 1989 at around 10:00 P.M., was conducted
56
pursuant to an intelligence report received by the division that said establishment was being occupied by
elements of the RAM-SFP as a communication command post.

Sgt. Crispin Sagario, the driver of the car, parked the vehicle around ten to fifteen meters away from the
Eurocar building near P. Tuazon Street, S/Sgt. Henry Aquino had earlier alighted from the car to conduct his
surveillance on foot. A crowd was then gathered near the Eurocar office watching the on-going bombardment
near Camp Aguinaldo. After a while, a group of five men disengaged themselves from the crowd and walked
towards the car of the surveillance team. At that moment, Maj. Soria, who was then seated in front, saw the
approaching group and immediately ordered Sgt. Sagario to start the car and leave the area. As they passed by
the group, then only six meters away, the latter pointed to them, drew their guns and fired at the team, which
attack resulted in the wounding of Sgt. Sagario on the right thigh. Nobody in the surveillance team was able to
retaliate because they sought cover inside the car and they were afraid that civilians or bystanders might be
caught in the cross-fire.

As a consequence, at around 6:30 A.M. of December 5, 1989, a searching team composed of F/Lt. Virgilio
Babao as team leader, M/Sgt. Lacdao, Sgt. Magallion, Sgt. Patricio Pacatang, and elements of the 16th Infantry
Battalion under one Col. delos Santos raided the Eurocar Sales Office. They were able to find and confiscate six
cartons of M-16 ammunition, five bundles of C-4 dynamites, M-shells of different calibers, and "molotov" bombs
inside one of the rooms belonging to a certain Col. Matillano which is located at the right portion of the building.
Sgt. Oscar Obenia, the first one to enter the Eurocar building, saw appellant De Gracia inside the office of Col.
Matillano, holding a C-4 and suspiciously peeping through a door. De Gracia was the only person then present
inside the room. A uniform with the nametag of Col. Matillano was also found. As a result of the raid, the team
arrested appellant, as well as Soprieso Verbo and Roberto Jimena who were janitors at the Eurocar building.
They were then made to sign an inventory, written in Tagalog, of the explosives and ammunition confiscated by
the raiding team. No search warrant was secured by the raiding team because, according to them, at that time
there was so much disorder considering that the nearby Camp Aguinaldo was being mopped up by the rebel
forces and there was simultaneous firing within the vicinity of the Eurocar office, aside from the fact that the
courts were consequently closed. The group was able to confirm later that the owner of Eurocar office is a
certain Mr. Gutierrez and that appellant is supposedly a "boy" therein.

Appellant Rolando de Gracia gave another version of the incident. First, he claims that on November 30, 1989,
he was in Antipolo to help in the birthday party of Col. Matillano. He denies that he was at the Eurocar Sales
Office on December 1, 1989. Second, he contends that when the raiding team arrived at the Eurocar Sales
Office on December 5, 1989, he was inside his house, a small nipa hut which is adjacent to the building.
According to him, he was tasked to guard the office of Col. Matillano which is located at the right side of the
building. He denies, however, that he was inside the room of Col. Matillano when the raiding team barged in
and that he had explosives in his possession. He testified that when the military raided the office, he was
ordered to get out of his house and made to lie on the ground face down, together with "Obet" and "Dong" who
were janitors of the building. He avers that he does not know anything about the explosives and insists that
when they were asked to stand up, the explosives were already there.

Appellant stated that he visited Col. Matillano in 1987 at the stockade of the Philippine Constabulary-Integrated
National Police (PC-INP), and that he knew Matillano was detained because of the latter's involvement in the
1987coup d' etat. In July, 1989, appellant again went to see Matillano because he had no job. Col. Matillano
then told him that he could stay in the PC-INP stockade and do the marketing for them. From that time until his
arrest at the Eurocar office, appellant worked for Matillano.

De Gracia believes that the prosecution witnesses were moved to testify against him because "bata raw ako ni
Col. Matillano eh may atraso daw sa kanila si Col. Matillano kaya sabi nila ito na lang bata niya ang ipitin natin."

On February 22, 1991, the trial court rendered judgment
5
acquitting appellant Rolando de Gracia of attempted
homicide, but found him guilty beyond reasonable doubt of the offense of illegal possession of firearms in
furtherance of rebellion and sentenced him to serve the penalty of reclusion perpetua. Moreover, it made a
recommendation that "(i)nasmuch as Rolando de Gracia appears to be merely executing or obeying orders and
pursuant to the spirit contained in the 2nd paragraph of Art. 135, R. P. C., the court recommends that Rolando
de Gracia be extended executive clemency after serving a jail term of five (5) years of good behavior.

That judgment of conviction is now challenged before us in this appeal.
Appellant principally contends that he cannot be held guilty of illegal possession of firearms for the reason that
he did not have either physical or constructive possession thereof considering that he had no intent to possess
the same; he is neither the owner nor a tenant of the building where the ammunition and explosives were
57
found; he was merely employed by Col. Matillano as an errand boy; he was guarding the explosives for and in
behalf of Col. Matillano; and he did not have actual possession of the explosives. He claims that intent to
possess, which is necessary before one can be convicted under Presidential Decree No. 1866, was not present in
the case at bar.
Presidential Decree No. 1866 provides as follows:
Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or
Ammunition or Instruments Used or intended to be Used in the Manufacture of Firearms or
Ammunition. The penalty of reclusion temporal in its maximum period to reclusion
perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire,
dispose, or possess any firearms, part of firearms, ammunition or machinery, tool or instrument
used or intended to be used in the manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death
shall be imposed.
If the violation of this Section is in furtherance of, or incident to, or in connection with the crimes
of rebellion, insurrection or subversion, the penalty of death shall be imposed.

Presidential Decree No. 1866 was passed because of an upsurge of crimes vitally affecting public order and
safety due to the proliferation of illegally possessed and manufactured firearms, ammunition and explosives,
and which criminal acts have resulted in loss of human lives, damage to property and destruction of valuable
resources of the country. The series of coup d' etats unleashed in the country during the first few years of the
transitional government under then President Corazon P. Aquino attest to the ever-growing importance of laws
such as Presidential Decree No. 1866 which seek to nip in the bud and preempt the commission of any act or
acts which tend to disturb public peace and order.

I. The first issue to be resolved is whether or not intent to possess is an essential element of the offense
punishable under Presidential Decree No. 1866 and, if so, whether appellant De Gracia did intend to illegally
possess firearms and ammunition.

The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What
the law requires is merely possession which includes not only actual physical possession but also constructive
possession or the subjection of the thing to one's control and management.
6
This has to be so if the manifest
intent of the law is to be effective. The same evils, the same perils to public security, which the law penalizes
exist whether the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the
object of this law the proprietary concept of the possession can have no bearing whatsoever.
7

But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession
of firearms or must there be an intent to possess to constitute a violation of the law? This query assumes
significance since the offense of illegal possession of firearms is a malum prohibitum punished by a special
law,
8
in which case good faith and absence of criminal intent are not valid defenses.
9

When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is
sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit
the crime and intent to perpetrate the act must be distinguished. A person may not have consciously intended
to commit a crime; but he did intend to commit an act, and that act is, by the very nature of things, the crime
itself. In the first (intent to commit the crime), there must be criminal intent; in the second (intent to
perpetrate the act) it is enough that the prohibited act is done freely and consciously.
10

In the present case, a distinction should be made between criminal intent and intent to possess. While mere
possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must
still be shown that there was animus possidendi or an intent to possess on the part of the accused.
11
Such
intent to possess is, however, without regard to any other criminal or felonious intent which the accused may
have harbored in possessing the firearm. Criminal intent here refers to the intention of the accused to commit
an offense with the use of an unlicensed firearm. This is not important in convicting a person under Presidential
Decree No. 1866. Hence, in order that one may be found guilty of a violation of the decree, it is sufficient that
the accused had no authority or license to possess a firearm, and that he intended to possess the same, even if
such possession was made in good faith and without criminal intent.

Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot be
considered a violation of a statute prohibiting the possession of this kind of weapon,
12
such as Presidential
Decree No. 1866. Thus, although there is physical or constructive possession, for as long as the animus
possidendi is absent, there is no offense committed.
58

Coming now to the case before us, there is no doubt in our minds that appellant De Gracia is indeed guilty of
having intentionally possessed several firearms, explosives and ammunition without the requisite license or
authority therefor. Prosecution witness Sgt. Oscar Abenia categorically testified that he was the first one to
enter the Eurocar Sales Office when the military operatives raided the same, and he saw De Gracia standing in
the room and holding the several explosives marked in evidence as Exhibits D to D-4.
13
At first, appellant
denied any knowledge about the explosives. Then, he alternatively contended that his act of guarding the
explosives for and in behalf of Col. Matillano does not constitute illegal possession thereof because there was no
intent on his part to possess the same, since he was merely employed as an errand boy of Col. Matillano. His
pretension of impersonal or indifferent material possession does not and cannot inspire credence.

Animus possidendi is a state of mind which may be determined on a case to case basis, taking into
consideration the prior and coetaneous acts of the accused and the surrounding circumstances. What exists in
the realm of thought is often disclosed in the range of action. It is not controverted that appellant De Gracia is a
former soldier, having served with the Philippine Constabulary prior to his separation from the service for going
on absence without leave

(AWOL).
14
We do not hesitate, therefore, to believe and conclude that he is familiar with and knowledgeable
about the dynamites, "molotov" bombs, and various kinds of ammunition which were confiscated by the military
from his possession. As a former soldier, it would be absurd for him not to know anything about the dangerous
uses and power of these weapons. A fortiori, he cannot feign ignorance on the import of having in his
possession such a large quantity of explosives and ammunition. Furthermore, the place where the explosives
were found is not a military camp or office, nor one where such items can ordinarily but lawfully be stored, as in
a gun store, an arsenal or armory. Even an ordinarily prudent man would be put on guard and be suspicious if
he finds articles of this nature in a place intended to carry out the business of selling cars and which has nothing
to do at all, directly or indirectly, with the trade of firearms and ammunition.

On the basis of the foregoing disquisition, it is apparent, and we so hold, that appellant De Gracia actually
intended to possess the articles confiscated from his person.

II. The next question that may be asked is whether or not there was a valid search and seizure in this case.
While the matter has not been squarely put in issue, we deem it our bounden duty, in light of advertence
thereto by the parties, to delve into the legality of the warrantless search conducted by the raiding team,
considering the gravity of the offense for which herein appellant stands to be convicted and the penalty sought
to be imposed.

It is admitted that the military operatives who raided the Eurocar Sales Office were not armed with a search
warrant at that time.
15
The raid was actually precipitated by intelligence reports that said office was being used
as headquarters by the RAM.
16
Prior to the raid, there was a surveillance conducted on the premises wherein
the surveillance team was fired at by a group of men coming from the Eurocar building. When the military
operatives raided the place, the occupants thereof refused to open the door despite requests for them to do so,
thereby compelling the former to break into the office.
17
The Eurocar Sales Office is obviously not a gun store
and it is definitely not an armory or arsenal which are the usual depositories for explosives and ammunition. It
is primarily and solely engaged in the sale of automobiles. The presence of an unusual quantity of high-powered
firearms and explosives could not be justifiably or even colorably explained. In addition, there was general
chaos and disorder at that time because of simultaneous and intense firing within the vicinity of the office and in
the nearby Camp Aguinaldo which was under attack by rebel forces.
18
The courts in the surrounding areas were
obviously closed and, for that matter, the building and houses therein were deserted.

Under the foregoing circumstances, it is our considered opinion that the instant case falls under one of the
exceptions to the prohibition against a warrantless search. In the first place, the military operatives, taking into
account the facts obtaining in this case, had reasonable ground to believe that a crime was being committed.
There was consequently more than sufficient probable cause to warrant their action. Furthermore, under the
situation then prevailing, the raiding team had no opportunity to apply for and secure a search warrant from the
courts. The trial judge himself manifested that on December 5, 1989 when the raid was conducted, his court
was closed.
19
Under such urgency and exigency of the moment, a search warrant could lawfully be dispensed
with.

The view that we here take is in consonance with our doctrinal ruling which was amply explained in People vs.
Malmstedt
20
and bears reiteration:
59
While it is true that the NARCOM officers were not armed with a search warrant when the search
was made over the personal effects of accused, however, under the circumstances of the case,
there was sufficient probable cause for said officers to believe that accused was then and there
committing a crime.
Probable cause has been defined as such facts and circumstances which would lead a reasonable,
discreet and prudent man to believe that an offense has been committed, and that the objects
sought in connection with the offense are in the place sought to be searched. The required
probable cause that will justify a warrantless search and seizure is not determined by any fixed
formula but is resolved according to the facts of each case.

Warrantless search of the personal effects of an accused has been declared by this Court as
valid, because of existence of probable cause, where the smell of marijuana emanated from a
plastic bag owned by the accused, or where the accused was acting suspiciously, and attempted
to flee.

Aside from the persistent reports received by the NARCOM that vehicles coming from Sagada
were transporting marijuana and other prohibited drugs, their Commanding Officer also received
information that a Caucasian coming from Sagada on that particular day had prohibited drugs in
his possession. Said information was received by the Commanding Officer of NARCOM the very
same morning that accused came down by bus from Sagada on his way to Baguio City.

When NARCOM received the information, a few hours before the apprehension of herein accused,
that a Caucasian travelling from Sagada to Baguio City was carrying with him prohibited drugs,
there was no time to obtain a search warrant. In the Tangliben case, the police authorities
conducted a surveillance at the Victory Liner Terminal located at Bgy. San Nicolas, San
Fernando, Pampanga, against persons engaged in the traffic of dangerous drugs, based on
information supplied by some informers.

Accused Tangliben who was acting suspiciously and pointed out by an informer was apprehended
and searched by the police authorities. It was held that when faced with on-the-spot information,
the police officers had to act quickly and there was no time to secure a search warrant.

It must be observed that, at first, the NARCOM officers merely conducted a routine check of the
bus (where accused was riding) and the passengers therein, and no extensive search was initially
made. It was only when one of the officers noticed a bulge on the waist of accused, during the
course of the inspection, that accused was required to present his passport. The failure of
accused to present his identification papers, when ordered to do so, only managed to arouse the
suspicion of the officer that accused was trying to hide his identity. For is it not a regular norm
for an innocent man, who has nothing to hide from the authorities, to readily present his
identification papers when required to do so?

The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited
drugs in his possession, plus the suspicious failure of the accused to produce his passport, taken
together as a whole, led the NARCOM officers to reasonably believe that the accused was trying
to hide something illegal from the authorities. From these circumstances arose a probable cause
which justified the warrantless search that was made on the personal effects of the accused. In
other words, the acts of the NARCOM officers in requiring the accused to open his pouch bag and
in opening one of the wrapped objects found inside said bag (which was discovered to contain
hashish) as well as the two (2) teddy bears with hashish stuffed inside them, were prompted by
accused's own attempt to hide his identity by refusing to present his passport, and by the
information received by the NARCOM that a Caucasian coming from Sagada had prohibited drugs
in his possession. To deprive the NARCOM agents of the ability and facility to act accordingly,
including, to search even without warrant, in the light of such circumstances, would be to
sanction impotence and ineffectiveness in law enforcement, to the detriment of society.

In addition, we find the principle enunciated in Umil, et al., vs. Ramos,
et al.,
21
applicable, by analogy, to the present case:
The arrest of persons involved in the rebellion whether as its fighting armed elements, or for
committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them
in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately
prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual
60
procedure in the prosecution of offenses which requires the determination by a judge of the
existence of probable cause before the issuance of a judicial warrant of arrest and the granting of
bail if the offense is bailable. Obviously the absence of a judicial warrant is no legal impediment
to arresting or capturing persons committing overt acts of violence against government forces,
or any other milder acts but really in pursuance of the rebellious movement. The arrest or
capture is thus impelled by the exigencies of the situation that involves the very survival of
society and its government and duly constituted authorities. If killing and other acts of violence
against the rebels find justification in the exigencies of armed hostilities which (are) of the
essence of waging a rebellion or insurrection, most assuredly so in case of invasion, merely
seizing their persons and detaining them while any of these contingencies continues cannot be
less justified.

III. As earlier stated, it was stipulated and admitted by both parties that from November 30, 1989 up to and
until December 9, 1989, there was a rebellion. Ergo, our next inquiry is whether or not appellant's possession of
the firearms, explosives and ammunition seized and recovered from him was for the purpose and in furtherance
of rebellion.

The trial court found accused guilty of illegal possession of firearms in furtherance of rebellion pursuant to
paragraph 2 of Article 135 of the Revised Penal Code which states that "any person merely participating or
executing the command of others in a rebellion shall suffer the penalty of prision mayor in its minimum period."
The court below held that appellant De Gracia, who had been servicing the personal needs of Col. Matillano
(whose active armed opposition against the Government, particularly at the Camelot Hotel, was well known), is
guilty of the act of guarding the explosives and "molotov" bombs for and in behalf of the latter. We accept this
finding of the lower court.

The above provision of the law was, however, erroneously and improperly used by the court below as a basis in
determining the degree of liability of appellant and the penalty to be imposed on him. It must be made clear
that appellant is charged with the qualified offense of illegal possession of firearms in furtherance of rebellion
under Presidential Decree No. 1866 which, in law, is distinct from the crime of rebellion punished under Articles
134 and 135 of the Revised Penal Code. These are two separate statutes penalizing different offenses with
discrete penalties. The Revised Penal Code treats rebellion as a crime apart from murder, homicide, arson, or
other offenses, such as illegal possession of firearms, that might conceivably be committed in the course of a
rebellion. Presidential Decree No. 1866 defines and punishes, as a specific offense, the crime of illegal
possession of firearms committed in the course or as part of a rebellion.
22

As a matter of fact, in one case involving the constitutionality of Section 1 of Presidential Decree No. 1866, the
Court has explained that said provision of the law will not be invalidated by the mere fact that the same act is
penalized under two different statutes with different penalties, even if considered highly advantageous to the
prosecution and onerous to the accused.
23
It follows that, subject to the presence of the requisite elements in
each case, unlawful possession of an unlicensed firearm in furtherance of rebellion may give rise to separate
prosecutions for a violation of Section 1 of Presidential Decree No. 1866, and also a violation of Articles 134 and
135 of the Revised Penal Code on rebellion. Double jeopardy in this case cannot be invoked because the first is
an offense punished by a special law while the second is a felony punished by the Revised Penal Code,
24
with
variant elements.

It was a legal malapropism for the lower court to interject the aforestated provision of the Revised Penal Code
in this prosecution for a crime under a special law. Consequently, there is no basis for its recommendation for
executive clemency in favor of appellant De Gracia after he shall have served a jail term of five years with good
behavior. In any event, this is a matter within the exclusive prerogative of the President whose decision thereon
should be insulated against any tenuous importunity.

Withal, we are duly convinced that the firearms, explosives and ammunition confiscated from appellant De
Gracia were illegally possessed by him in furtherance of the rebellion then admittedly existing at that time. In
the words of the court a quo:
2. the nature and quantity of the items 5 bundles of C-4 dynamites, 6 cartons of M-16 ammo
and 100 bottles of molotov bombs indicate that the reports received by the military that the
Eurocar Sales Building was being used by the rebels was not without basis. Those items are
clearly not for one's personal defense. They are for offensive operations. De Gracia admitted that
per instruction of Col. Matillano he went down to Eurocar Sales Building from Antipolo to stay
guard there.

61
His manifestation of innocence of those items and what he has been guarding in that office is not
credible for: (a) he was a former military personnel; (b) at the birthday party of Col. Matillano on
November 30, 1989 many soldiers and ex-soldiers were present which self-evidently discloses
that De Gracia, in the company of his boss, was still very much at home and constantly in touch
with soldiers and the armed rebellion of November 30, 1989 to December 8 or 9, 1989 was a
military coup d' etat; (c) it appears that he is the only person tasked with caretaking (sic) there
in the Matillano office, which shows that he is a highly trusted right-hand man of Col. Matillano;
and (d) as heretofore discussed, De Gracia was earlier seen with some men who fired upon a car
of the AFP intelligence agents.
25

Presidential Decree No. 1866 imposes the death penalty where the illegal possession of firearms and
ammunition is committed in furtherance of rebellion. At the time the offense charged in this case was
committed under the governance of that law, the imposition of the death penalty was proscribed by the
Constitution. Consequently, appellant De Gracia could only be sentenced to serve the penalty of reclusion
perpetua which was correctly meted out by the trial court, albeit with an erroneous recommendation in
connection therewith.

WHEREFORE, the impugned judgment of the trial court is hereby AFFIRMED, but its recommendation therein for
executive clemency and the supposed basis thereof are hereby DELETED, with costs against accused-appellant.

SO ORDERED.

Narvasa, C.J., Padilla, Puno and Mendoza, JJ., concur.

#Footnotes
1 TSN, August 28, 1990, 40-42.
2 Original Record, 1.
3 Ibid., 52.
4 Ibid., 97.
5 Penned by Judge Jaime N. Salazar; Original Record, 146.
6 People vs. Cruz, G. R. No. 76728, August 30, 1988, 165 SCRA 135; People vs. Fajardo, et al., 123
Phil. 1348 (1966).
7 People vs. Estoista, 93 Phil. 647 (1953).
8 Veroy, et al. vs. Layague, etc., et al., G. R. No. 95630, June 18, 1992, 210 SCRA 97.
9 People vs. Neri, G. R. No. L-37762, December 19, 1985, 140 SCRA 406.
10 Reyes, The Revised Penal Code, Book One, 1981, 12th ed., 53.
11 People vs. Soyang, et al., 110 Phil. 565 (1960); People vs. Lubo, et al., 101 Phil. 179 (1957); U.S.
vs. Samson, 16 Phil. 323 (1910).
12 People vs. Estoista, supra, Fn. 7.
13 TSN, November 22, 1990, 12.
14 Ibid., December 6, 1990, 36.
15 Ibid., November 22, 1990, 33.
16 Ibid., October 2, 1990, 21-22.
17 Ibid., id., November 22, 1990, 8.
18 Ibid., id., October 2, 1990, 16-17.
19 Ibid., November 29, 1990, 58.
20 G. R. No. 91107, June 19, 1991, 198 SCRA 401.
21 G. R. No. 81567, July 9, 1990, 187 SCRA 311.
22 Baylosis, et al. vs. Chavez, Jr., et al., G. R. No. 95136, October 3, 1991, 202 SCRA 405.
23 Misolas vs. Pangas, etc. et al., G. R. No. 83341, January 30, 1990, 181 SCRA 648.
24 Cf. People vs. Tiozon, G. R. No. 89823, June 19, 1991, 198 SCRA 368.
25 Original Record, 149-15








62
Case Digest on People v. de Gracia, 233 SCRA 716 (July 6, 1994)

People v. de Gracia, 233 SCRA 716 (July 6, 1994)
F: The incidents involved in this case took place at the height of the coup d''etat staged in December, 1989.
Accused-appellant Rolando de Gracia was charged in two separate informations for illegal possession of
ammunition and explosives in furtherance of rebellion, and for attempted homicide. Appellant was convicted for
illegal possession of firearms in furtherance of rebellion, but was acquitted of attempted homicide. Surveillance
was undertaken by the military along EDSA because of intelligence reports about a coup. Members of the team
were engaged by rebels in gunfire killing one member of the team. A searching team raided the Eurocar Sales
Office. They were able to find and confiscate six cartons of M-16 ammunition, five bundles of C-4 dynamites, M-
shells of different calibers, and "molotov" bombs inside one of the rooms belonging to a certain Col. Matillano.
De Gracia was seen inside the office of Col. Matillano, holding a C-4 and suspiciously peeping through a door.
The team arrested appellant. They were then made to sign an inventory, written in Tagalog, of the explosives
and ammunition confiscated by the raiding team. No search warrant was secured by the raiding team. Accused
was found guilty of illegal possession of firearms. That judgment of conviction is now challenged before us in
this appeal.

Issue: Whether or not there was a valid search and seizure in this case.

Ruling: YES It is admitted that the military operatives who raided the Eurocar Sales Office were not armed with
a search warrant at that time. The raid was actually precipitated by intelligence reports that said office was
being used as headquarters by the RAM. Prior to the raid, there was a surveillance conducted on the premises
wherein the surveillance team was fired at by a group of men coming from the Eurocar building.
When the military operatives raided the place, the occupants thereof refused to open the door despite requests
for them to do so, thereby compelling the former to break into the office. The Eurocar Sales Office is obviously
not a gun store and it is definitely not an armory or arsenal which are the usual depositories for explosives and
ammunition. It is primarily and solely engaged in the sale of automobiles. The presence of an unusual quantity
of high-powered firearms and explosives could not be justifiably or even colorably explained. In addition, there
was general chaos and disorder at that time because of simultaneous and intense firing within the vicinity of the
office and in the nearby Camp Aguinaldo which was under attack by rebel forces. The courts in the surrounding
areas were obviously closed and, for that matter, the building and houses therein were deserted. Under the
foregoing circumstances, it is our considered opinion that the instant case falls under one of the exceptions to
the prohibition against a warrantless search. In the first place, the military operatives, taking into account the
facts obtaining in this case, had reasonable ground to believe that a crime was being committed. There was
consequently more than sufficient probable cause to warrant their action. Furthermore, under the situation then
prevailing, the raiding team had no opportunity to apply for and secure a search warrant from the courts. Under
such urgency and exigency of the moment, a search warrant could lawfully be dispensed with. There are