EN BANC

[G.R. No. 123595. December 12, 1997]

SAMMY MALACAT y MANDAR, petitioner, vs. COURT OF APPEALS, and PEOPLE OF THE
PHILIPPINES, respondents.

DECISION
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 petitioners front waist line. [7] Yus
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
1
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 Serapios advice, petitioner and Casan manifested their
willingness to answer questions even without the assistance of a lawyer. Serapio then took petitioners
uncounselled confession (Exh. E), there being no PAO lawyer available, wherein petitioner admitted
possession of the grenade. Thereafter, Serapio prepared the affidavit of arrest and booking sheet of
petitioner and Casan. Later, Serapio turned over the grenade to the Intelligence and Special Action
Division (ISAD) of the Explosive Ordnance Disposal Unit for examination. [11]
On cross-examination, Serapio admitted that he took petitioners confession knowing it was
inadmissible in evidence.[12]
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 petitioners mouth and said, [y]ou are the one who shot
me. Petitioner denied the charges and explained that he only recently arrived in Manila. However,
several other police officers mauled him, hitting him with benches and guns. Petitioner was once
again searched, but nothing was found on him. He saw the grenade only in court when it was
presented.[14]
The trial court ruled that the warrantless search and seizure of petitioner was akin to a stop and
frisk, where a warrant and seizure can be effected without necessarily being preceded by an arrest
and whose object is either to maintain the status quo momentarily while the police officer seeks to
obtain more information.[15] Probable cause was not required as it was not 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, petitioners group
suddenly ran away in different directions as they saw the arresting officers approach, thus [i]t is
2
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
petitioners 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.
1866, and sentenced him to suffer:

[T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY
OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION
PERPETUA, as maximum.

On 18 February 1994, petitioner filed a notice of appeal [20] indicating that he was appealing to this
Court. However, the record of the case was forwarded to the Court of Appeals which docketed it as
CA-G.R. CR No. 15988 and issued a notice to file briefs. [21]
In his Appellants 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.
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
petitioners possession was not raised as an issue. Further, respondent court focused on the
admissibility in evidence of Exhibit D, the hand grenade seized from petitioner. Meeting the issue
squarely, the Court of Appeals ruled that the arrest was lawful on the ground that there was probable
cause for the arrest as petitioner was attempting to commit an offense, thus:

We are at a loss to understand how a man, who was in possession of a live grenade and in the company of other
suspicious character[s] with unlicensed firearm[s] lurking in Plaza Miranda at a time when political tension
ha[d] been enkindling a series of terroristic activities, [can] claim that he was not attempting to commit an
offense. We need not mention that Plaza Miranda is historically notorious for being a favorite bomb site
especially during times of political upheaval. As the mere possession of an unlicensed grenade is by itself an
offense, Malacats posture is simply too preposterous to inspire belief.

3
 In so doing, the Court of Appeals took into account petitioners failure to rebut the testimony of the
prosecution witnesses that they received intelligence reports of a bomb threat at Plaza Miranda; the
fact that PO Yu chased petitioner two days prior to the latters arrest, or on 27 August 1990; and that
petitioner and his companions acted suspiciously, the accumulation of which was more than sufficient
to convince a reasonable man that an offense was about to be committed. Moreover, the Court of
Appeals observed:

The police officers in such a volatile situation would be guilty of gross negligence and dereliction of duty, not to
mention of gross incompetence, if they [would] first wait for Malacat to hurl the grenade, and kill several
innocent persons while maiming numerous others, before arriving at what would then be an assured but moot
conclusion that there was indeed probable cause for an arrest. We are in agreement with the lower court in
saying that the probable cause in such a situation should not be the kind of proof necessary to convict, but rather
the practical considerations of everyday life on which a reasonable and prudent mind, and not legal technicians,
will ordinarily act.

Finally, the Court of Appeals held that the rule laid down in People v. Mengote, [26] which petitioner
relied upon, was inapplicable in light of [c]rucial differences, to wit:

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

Unable to accept his conviction, petitioner forthwith filed the instant petition and assigns the
following errors:
1. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF THE TRIAL
COURT THAT THE WARRANTLESS ARREST OF PETITIONER WAS VALID AND
LEGAL.
2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING IN PEOPLE VS.
MENGOTE DOES NOT FIND APPLICATION IN THE INSTANT CASE.
In support thereof, petitioner merely restates his arguments below regarding the validity of the
warrantless arrest and search, then disagrees with the finding of the Court of Appeals that he was
attempting to commit a crime, as the evidence for the prosecution merely disclosed that he was
standing at the corner of Plaza Miranda and Quezon Boulevard with his eyes moving very fast and
looking at every person that come (sic) nearer (sic) to them. Finally, petitioner points out the factual
similarities between his case and that of People v. Mengote to demonstrate that the Court of Appeals
miscomprehended the latter.
In its Comment, the Office of the Solicitor General prays that we affirm the challenged decision.
For being impressed with merit, we resolved to give due course to the petition.
The challenged decision must immediately fall on jurisdictional grounds. To repeat, the penalty
imposed by the trial court was:

4
 [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.
Petitioners Notice of Appeal indicated that he was appealing from the trial courts decision to this
Court, yet the trial court transmitted the record to the Court of Appeals and the latter proceeded to
resolve the appeal.
We then set aside the decision of the Court of Appeals for having been rendered without
jurisdiction, and consider the appeal as having been directly brought to us, with the petition for review
as petitioners Brief for the Appellant, the comment thereon by the Office of the Solicitor General as
the Brief for the Appellee and the memoranda of the parties as their Supplemental Briefs.
Deliberating on the foregoing pleadings, we find ourselves convinced that the prosecution failed
to establish petitioners guilt with moral certainty.
First, serious doubt surrounds the story of police officer Yu that a grenade was found in and
seized from petitioners possession. Notably, Yu did not identify, in court, the grenade he allegedly
seized. According to him, he turned it over to his commander after putting an X mark at its bottom;
however, the commander was not presented to corroborate this claim. On the other hand, the
grenade presented in court and identified by police officer Ramilo referred to what the latter received
from Lt. Eduardo Cabrera and police officer Diotoy not immediately after petitioners arrest, but
nearly seven (7) months later, or on 19 March 1991; further, there was no evidence whatsoever that
what Ramilo received was the very same grenade seized from petitioner. In his testimony, Yu never
declared that the grenade passed on to Ramilo was the grenade the former confiscated from
petitioner. Yu did not, and was not made to, identify the grenade examined by Ramilo, and the latter
did not claim that the grenade he examined was that seized from petitioner. Plainly, the law
enforcement authorities failed to safeguard and preserve the chain of evidence so crucial in cases
such as these.
Second, if indeed petitioner had a grenade with him, and that two days earlier he was with a
group about to detonate an explosive at Plaza Miranda, and Yu and his fellow officers chased, but
failed to arrest them, then considering that Yu and his three fellow officers were in uniform and
therefore easily cognizable as police officers, it was then unnatural and against common experience
that petitioner simply stood there in proximity to the police officers. Note that Yu observed petitioner
for thirty minutes and must have been close enough to petitioner in order to discern petitioners eyes
moving very fast.
Finally, even assuming that petitioner admitted possession of the grenade during his custodial
investigation by police officer Serapio, such admission was inadmissible in evidence for it was taken
in palpable violation of Section 12(1) and (3) of Article III of the Constitution, which provide as follows:
5
SEC. 12 (1). Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be
waived except in writing and in the presence of counsel.

xxx
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
Serapio conducted the custodial investigation on petitioner the day following his arrest. No lawyer
was present and Serapio could not have requested a lawyer to assist petitioner as no PAO lawyer
was then available. Thus, even if petitioner consented to the investigation and waived his rights to
remain silent and to counsel, the waiver was invalid as it was not in writing, neither was it executed in
the presence of counsel.
Even granting ex gratia that petitioner was in possession of a grenade, the arrest and search of
petitioner were invalid, as will be discussed below.
The general rule as regards arrests, searches and seizures is that a warrant is needed in order to
validly effect the same.[31] The 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
6
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
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, here are at least three (3) reasons why the stop-and-frisk was invalid:
First, we harbor grave doubts as to Yus claim that petitioner was a member of the group which
attempted to bomb Plaza Miranda two days earlier. This claim is neither supported by any police
report or record nor corroborated by any other police officer who allegedly chased that group. Aside
from impairing Yu's credibility as a witness, this likewise diminishes the probability that a genuine
reason existed so as to arrest and search petitioner. If only to further tarnish the credibility of Yu's
testimony, contrary to his claim that petitioner and his companions had to be chased before being
apprehended, the affidavit of arrest (Exh. "A") expressly declares otherwise, i.e., upon arrival of five
(5) other police officers, petitioner and his companions were "immediately collared."
Second, there was nothing in petitioners behavior or conduct which could have reasonably
elicited even mere suspicion other than that his eyes were moving very fast an observation which
leaves us incredulous since Yu and his teammates were nowhere near petitioner and it was already

7
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 petitioners rights solemnly
guaranteed in Sections 2 and 12(1) of Article III of the Constitution.
WHEREFORE, the challenged decision of the Seventeenth Division of the Court of Appeals in
CA-G.R. CR No. 15988 is SET ASIDE for lack of jurisdiction on the part of said Court and, on ground
of reasonable doubt, the decision of 10 February 1994 of Branch 5 of the Regional Trial Court of
Manila is REVERSED and petitioner SAMMY MALACAT y MANDAR is hereby ACQUITTED and
ORDERED immediately released from detention, unless his further detention is justified for any other
lawful cause.
Costs de oficio.
SO ORDERED.
Narvasa, C.J., Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Francisco, and Martinez, JJ., concur.
Panganiban, J., please see separate opinion.

[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.

8
[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
(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:
9
SEC. 17. Jurisdiction of the Supreme Court. x x x
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
(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
[29]
The Section relevantly reads:
SEC. 5. The Supreme Court shall have the following powers:
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
(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
[30]
The Section provides:
SEC. 3. How appeal taken.
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.
10
 See MICHELE G. HERMAN, SEARCH AND SEIZURE CHECKLIST 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 Terrystop 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] (underscoring
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) (underscoring supplied).
[41]
See 1 Varon, at 84.
[42]
TSN, 14 April 1993, 19-20.
[43]
RTC Decision, 2; CA Rollo, 28.

EN BANC

[G.R. No. 123595. December 12, 1997]

SAMMY MALACAT y MANDAR, petitioner, vs. COURT OF APPEALS, and PEOPLE OF THE
PHILIPPINES, respondents.

DECISION
DAVIDE, JR., J.:

11
 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 petitioners front waist line. [7] Yus
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 Serapios advice, petitioner and Casan manifested their
willingness to answer questions even without the assistance of a lawyer. Serapio then took petitioners
uncounselled confession (Exh. E), there being no PAO lawyer available, wherein petitioner admitted
possession of the grenade. Thereafter, Serapio prepared the affidavit of arrest and booking sheet of

12
petitioner and Casan. Later, Serapio turned over the grenade to the Intelligence and Special Action
Division (ISAD) of the Explosive Ordnance Disposal Unit for examination. [11]
On cross-examination, Serapio admitted that he took petitioners confession knowing it was
inadmissible in evidence.[12]
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 petitioners mouth and said, [y]ou are the one who shot
me. Petitioner denied the charges and explained that he only recently arrived in Manila. However,
several other police officers mauled him, hitting him with benches and guns. Petitioner was once
again searched, but nothing was found on him. He saw the grenade only in court when it was
presented.[14]
The trial court ruled that the warrantless search and seizure of petitioner was akin to a stop and
frisk, where a warrant and seizure can be effected without necessarily being preceded by an arrest
and whose object is either to maintain the status quo momentarily while the police officer seeks to
obtain more information.[15] Probable cause was not required as it was not 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, petitioners group
suddenly ran away in different directions as they saw the arresting officers approach, thus [i]t is
reasonable for an officer to conduct a limited search, the purpose of which is not necessarily to
discover evidence of a crime, but to allow the officer to pursue his investigation without fear of
violence.[18]
The trial court then ruled that the seizure of the grenade from petitioner was incidental to a lawful
arrest, and since petitioner [l]ater voluntarily admitted such fact to the police investigator for the
purpose of bombing the Mercury Drug Store, concluded that sufficient evidence existed to establish
petitioners guilt beyond reasonable doubt.
In its decision[19] dated 10 February 1994 but promulgated on 15 February 1994, the trial court
thus found petitioner guilty of the crime of illegal possession of explosives under Section 3 of P.D. No.
1866, and sentenced him to suffer:

13
[T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY
OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION
PERPETUA, as maximum.

On 18 February 1994, petitioner filed a notice of appeal [20] indicating that he was appealing to this
Court. However, the record of the case was forwarded to the Court of Appeals which docketed it as
CA-G.R. CR No. 15988 and issued a notice to file briefs. [21]
In his Appellants 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.
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
petitioners possession was not raised as an issue. Further, respondent court focused on the
admissibility in evidence of Exhibit D, the hand grenade seized from petitioner. Meeting the issue
squarely, the Court of Appeals ruled that the arrest was lawful on the ground that there was probable
cause for the arrest as petitioner was attempting to commit an offense, thus:

We are at a loss to understand how a man, who was in possession of a live grenade and in the company of other
suspicious character[s] with unlicensed firearm[s] lurking in Plaza Miranda at a time when political tension
ha[d] been enkindling a series of terroristic activities, [can] claim that he was not attempting to commit an
offense. We need not mention that Plaza Miranda is historically notorious for being a favorite bomb site
especially during times of political upheaval. As the mere possession of an unlicensed grenade is by itself an
offense, Malacats posture is simply too preposterous to inspire belief.

In so doing, the Court of Appeals took into account petitioners failure to rebut the testimony of the
prosecution witnesses that they received intelligence reports of a bomb threat at Plaza Miranda; the
fact that PO Yu chased petitioner two days prior to the latters arrest, or on 27 August 1990; and that
petitioner and his companions acted suspiciously, the accumulation of which was more than sufficient
to convince a reasonable man that an offense was about to be committed. Moreover, the Court of
Appeals observed:

The police officers in such a volatile situation would be guilty of gross negligence and dereliction of duty, not to
mention of gross incompetence, if they [would] first wait for Malacat to hurl the grenade, and kill several
innocent persons while maiming numerous others, before arriving at what would then be an assured but moot
conclusion that there was indeed probable cause for an arrest. We are in agreement with the lower court in
saying that the probable cause in such a situation should not be the kind of proof necessary to convict, but rather

14
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 WARRANTLESS ARREST OF PETITIONER WAS VALID AND
LEGAL.
2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING IN PEOPLE VS.
MENGOTE DOES NOT FIND APPLICATION IN THE INSTANT CASE.
In support thereof, petitioner merely restates his arguments below regarding the validity of the
warrantless arrest and search, then disagrees with the finding of the Court of Appeals that he was
attempting to commit a crime, as the evidence for the prosecution merely disclosed that he was
standing at the corner of Plaza Miranda and Quezon Boulevard with his eyes moving very fast and
looking at every person that come (sic) nearer (sic) to them. Finally, petitioner points out the factual
similarities between his case and that of People v. Mengote to demonstrate that the Court of Appeals
miscomprehended the latter.
In its Comment, the Office of the Solicitor General prays that we affirm the challenged decision.
For being impressed with merit, we resolved to give due course to the petition.
The challenged decision must immediately fall on jurisdictional grounds. To repeat, the penalty
imposed by the trial court was:

[N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION
TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as
maximum.

The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall unlawfully possess
grenades is reclusion temporal in its maximum period to reclusion perpetua.
For purposes of determining appellate jurisdiction in criminal cases, the maximum of the penalty,
and not the minimum, is taken into account. Since the maximum of the penalty is reclusion perpetua,
the appeal therefrom should have been to us, and not the Court of Appeals, pursuant to Section 9(3)
of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129), [27] 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
15
of 1948, and Section 3 of Rule 122 must be deemed to include reclusion perpetua in view of Section
5(2) of Article VIII of the Constitution.
Petitioners Notice of Appeal indicated that he was appealing from the trial courts decision to this
Court, yet the trial court transmitted the record to the Court of Appeals and the latter proceeded to
resolve the appeal.
We then set aside the decision of the Court of Appeals for having been rendered without
jurisdiction, and consider the appeal as having been directly brought to us, with the petition for review
as petitioners Brief for the Appellant, the comment thereon by the Office of the Solicitor General as
the Brief for the Appellee and the memoranda of the parties as their Supplemental Briefs.
Deliberating on the foregoing pleadings, we find ourselves convinced that the prosecution failed
to establish petitioners guilt with moral certainty.
First, serious doubt surrounds the story of police officer Yu that a grenade was found in and
seized from petitioners possession. Notably, Yu did not identify, in court, the grenade he allegedly
seized. According to him, he turned it over to his commander after putting an X mark at its bottom;
however, the commander was not presented to corroborate this claim. On the other hand, the
grenade presented in court and identified by police officer Ramilo referred to what the latter received
from Lt. Eduardo Cabrera and police officer Diotoy not immediately after petitioners arrest, but
nearly seven (7) months later, or on 19 March 1991; further, there was no evidence whatsoever that
what Ramilo received was the very same grenade seized from petitioner. In his testimony, Yu never
declared that the grenade passed on to Ramilo was the grenade the former confiscated from
petitioner. Yu did not, and was not made to, identify the grenade examined by Ramilo, and the latter
did not claim that the grenade he examined was that seized from petitioner. Plainly, the law
enforcement authorities failed to safeguard and preserve the chain of evidence so crucial in cases
such as these.
Second, if indeed petitioner had a grenade with him, and that two days earlier he was with a
group about to detonate an explosive at Plaza Miranda, and Yu and his fellow officers chased, but
failed to arrest them, then considering that Yu and his three fellow officers were in uniform and
therefore easily cognizable as police officers, it was then unnatural and against common experience
that petitioner simply stood there in proximity to the police officers. Note that Yu observed petitioner
for thirty minutes and must have been close enough to petitioner in order to discern petitioners eyes
moving very fast.
Finally, even assuming that petitioner admitted possession of the grenade during his custodial
investigation by police officer Serapio, such admission was inadmissible in evidence for it was taken
in palpable violation of Section 12(1) and (3) of Article III of the Constitution, which provide as follows:

SEC. 12 (1). Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be
waived except in writing and in the presence of counsel.

xxx
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
Serapio conducted the custodial investigation on petitioner the day following his arrest. No lawyer
was present and Serapio could not have requested a lawyer to assist petitioner as no PAO lawyer

16
was then available. Thus, even if petitioner consented to the investigation and waived his rights to
remain silent and to counsel, the waiver was invalid as it was not in writing, neither was it executed in
the presence of counsel.
Even granting ex gratia that petitioner was in possession of a grenade, the arrest and search of
petitioner were invalid, as will be discussed below.
The general rule as regards arrests, searches and seizures is that a warrant is needed in order to
validly effect the same.[31] The 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.

17
 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
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, here are at least three (3) reasons why the stop-and-frisk was invalid:
First, we harbor grave doubts as to Yus claim that petitioner was a member of the group which
attempted to bomb Plaza Miranda two days earlier. This claim is neither supported by any police
report or record nor corroborated by any other police officer who allegedly chased that group. Aside
from impairing Yu's credibility as a witness, this likewise diminishes the probability that a genuine
reason existed so as to arrest and search petitioner. If only to further tarnish the credibility of Yu's
testimony, contrary to his claim that petitioner and his companions had to be chased before being
apprehended, the affidavit of arrest (Exh. "A") expressly declares otherwise, i.e., upon arrival of five
(5) other police officers, petitioner and his companions were "immediately collared."
Second, there was nothing in petitioners behavior or conduct which could have reasonably
elicited even mere suspicion other than that his eyes were moving very fast an observation which
leaves us incredulous since Yu and his teammates were nowhere near petitioner and it was already
6:30 p.m., thus presumably dusk. Petitioner and his companions were merely standing at the corner
and were not creating any commotion or trouble, as Yu explicitly declared on cross-examination:
Q And what were they doing?
A They were merely standing.
Q You are sure of that?
A Yes, sir.
Q And when you saw them standing, there were nothing or they did not create any
commotion?

18
 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 petitioners rights solemnly
guaranteed in Sections 2 and 12(1) of Article III of the Constitution.
WHEREFORE, the challenged decision of the Seventeenth Division of the Court of Appeals in
CA-G.R. CR No. 15988 is SET ASIDE for lack of jurisdiction on the part of said Court and, on ground
of reasonable doubt, the decision of 10 February 1994 of Branch 5 of the Regional Trial Court of
Manila is REVERSED and petitioner SAMMY MALACAT y MANDAR is hereby ACQUITTED and
ORDERED immediately released from detention, unless his further detention is justified for any other
lawful cause.
Costs de oficio.
SO ORDERED.
Narvasa, C.J., Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Francisco, and Martinez, JJ., concur.
Panganiban, J., please see separate opinion.

[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.
19
[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
(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. x x x
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
(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
20
[29]
The Section relevantly reads:
SEC. 5. The Supreme Court shall have the following powers:
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
(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
[30]
The Section provides:
SEC. 3. How appeal taken.
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. HERMAN, SEARCH AND SEIZURE CHECKLIST 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 Terrystop 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
21
 Seizure: A Treatise on the Fourth Amendment 9.1(d), at 342 [2nd ed. 1987] (underscoring
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) (underscoring supplied).
[41]
See 1 Varon, at 84.
[42]
TSN, 14 April 1993, 19-20.
[43]
RTC Decision, 2; CA Rollo, 28.

SECOND DIVISION

TEODORO C. BORLONGAN, G.R. No. 143591

JR.,CORAZON M. BEJASA, ARTURO E.
MANUEL, JR., ERIC L. LEE, P.
SIERVO H. DIZON, BENJAMIN DE Present:
LEON, DELFIN C. GONZALES, JR.,
and BEN YU LIM, JR., Petitioners,
BRION, J.,
Acting Chairperson,
DEL CASTILLO,
VILLARAMA, JR.,*
- versus - PEREZ, and
MENDOZA, JJ.**

MAGDALENO M. PEA and HON.

MANUEL Q. LIMSIACO, JR., as Judge
Designate of the Municipal Trial Court in
Cities, Bago City,
Respondents. Promulgated:

22
 May 5, 2010
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

PEREZ, J.:

The pivotal issue in this case is whether or not the Court of Appeals, in its Decision[1] dated 20 June
2000 in CA-G.R. SP No. 49666, is correct when it dismissed the petition for certiorari filed by petitioners
Teodoro C. Borlongan, Jr., Corazon M. Bejasa, Arturo E. Manuel, Jr., Benjamin de Leon, P. Siervo H. Dizon,
Delfin C. Gonzales, Jr., Eric L. Lee and Ben Yu Lim, Jr., and ruled that the Municipal Trial Court in Cities
(MTCC), Bago City, did not gravely abuse its discretion in denying the motion for reinvestigation and recall of
the warrants of arrest in Criminal Case Nos. 6683, 6684, 6685, and 6686.

The factual antecedents of the case are as follows:

Respondent Atty. Magdaleno M. Pea (Atty. Pea) instituted a civil case for recovery of agents compensation and
expenses, damages, and attorneys fees[2] against Urban Bank and herein petitioners, before the Regional Trial
Court (RTC) of Negros Occidental, BagoCity. The case was raffled to Branch 62 and was docketed as Civil
Case No. 754. Atty. Pea anchored his claim for compensation on the Contract of Agency[3] allegedly entered into
with the petitioners, wherein the former undertook to perform such acts necessary to prevent any intruder and
squatter from unlawfully occupying Urban Banks property located along Roxas
[4]
Boulevard, Pasay City. Petitioners filed a Motion to Dismiss arguing that they never appointed the respondent
as agent or counsel. Attached to the motion were the following documents: 1) a Letter [5] dated 19 December
1994 signed by Herman Ponce and Julie Abad on behalf of Isabela Sugar Company, Inc. (ISCI), the original
owner of the subject property; 2) an unsigned Letter [6] dated 7 December 1994 addressed to Corazon Bejasa
from Marilyn G. Ong; 3) a Letter[7] dated 9 December 1994 addressed to Teodoro Borlongan, Jr. and signed by
Marilyn G. Ong; and 4) a Memorandum[8] dated 20 November 1994 from Enrique Montilla III. Said documents
were presented in an attempt to show that the respondent was appointed as agent by ISCI and not by Urban
Bank or by the petitioners.

In view of the introduction of the above-mentioned documents, Atty. Pea filed his Complaint-Affidavit[9] with
the Office of the City Prosecutor, Bago City.[10] He claimed that said documents were falsified because the
alleged signatories did not actually affix their signatures, and the signatories were neither stockholders nor
officers and employees of ISCI.[11] Worse, petitioners introduced said documents as evidence before the RTC
knowing that they were falsified.

In a Resolution[12] dated 24 September 1998, the City Prosecutor found probable cause for the indictment of
petitioners for four (4) counts of the crime of Introducing Falsified Documents, penalized by the second
paragraph of Article 172 of the Revised Penal Code. The City Prosecutor concluded that the documents were
falsified because the alleged signatories untruthfully stated that ISCI was the principal of the respondent; that
petitioners knew that the documents were falsified considering that the signatories were mere dummies; and that
the documents formed part of the record of Civil Case No. 754 where they were used by petitioners as evidence
in support of their motion to dismiss, and then adopted in their answer and in their Pre-Trial Brief.
[13]
Subsequently, the corresponding Informations[14] were filed with the MTCC, Bago City. The cases were
23
docketed as Criminal Case Nos. 6683, 6684, 6685, and 6686. Thereafter, Judge Primitivo Blanca issued the
warrants[15] for the arrest of the petitioners.
On 1 October 1998, petitioners filed an Omnibus Motion to Quash, Recall Warrants of Arrest and/or For
Reinvestigation.[16]Petitioners insisted that they were denied due process because of the non-observance of the
proper procedure on preliminary investigation prescribed in the Rules of Court. Specifically, they claimed that
they were not afforded the right to submit their counter-affidavit. Then they argued that since no such counter-
affidavit and supporting documents were submitted by the petitioners, the trial judge merely relied on the
complaint-affidavit and attachments of the respondent in issuing the warrants of arrest, also in contravention
with the Rules of Court. Petitioners further prayed that the information be quashed for lack of probable
cause. Moreover, one of the accused, i.e., Ben Lim, Jr., is not even a director of Urban Bank, contrary to what
complainant stated. Lastly, petitioners posited that the criminal cases should have been suspended on the ground
that the issue being threshed out in the civil case is a prejudicial question.
In an Order[17] dated 13 November 1998, the MTCC denied the omnibus motion primarily on the ground
that preliminary investigation was not available in the instant case which fell within the jurisdiction of the first-
level court. The court, likewise, upheld the validity of the warrant of arrest, saying that it was issued in
accordance with the Rules of Court. Besides, the court added, petitioners could no longer question the validity
of the warrant since they already posted bail. The court also believed that the issue involved in the civil case
was not a prejudicial question, and, thus, denied the prayer for suspension of the criminal proceedings. Lastly,
the court was convinced that the Informations contained all the facts necessary to constitute an offense.

Petitioners immediately instituted a special civil action for Certiorari and Prohibition with Prayer for Writ of
Preliminary Injunction and Temporary Restraining Order (TRO) before the Court of Appeals, ascribing grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of the MTCC in issuing and not
recalling the warrants of arrest, reiterating the arguments in their omnibus motion. [18] They, likewise, questioned
the courts conclusion that by posting bail, petitioners already waived their right to assail the validity of the
warrants of arrest.

On 20 June 2000, the Court of Appeals dismissed the petition. [19] Thus, petitioners filed the instant petition for
review on certiorariunder Rule 45 of the Rules of Court, raising the following issues:

A.
Where the offense charged in a criminal complaint is not cognizable by the Regional Trial Court
and not covered by the Rule on Summary Procedure, is the finding of probable cause required
for the filing of an Information in court?

If the allegations in the complaint-affidavit do not establish probable cause, should not
the investigating prosecutor dismiss the complaint, or at the very least, require the respondent to
submit his counter-affidavit?

B.
Can a complaint-affidavit containing matters which are not within the personal
knowledge of the complainant be sufficient basis for the finding of probable cause?

C.
Where there is offense charged in a criminal complaint is not cognizable by the Regional
Trial Court and not covered by the Rule on Summary Procedure, and the record of the
preliminary investigation does not show the existence of probable cause, should not the judge
refuse to issue a warrant of arrest and dismiss the criminal case, or at the very least, require the
accused to submit his counter-affidavit in order to aid the judge in determining the existence of
probable cause?
24
 D.
Can a criminal prosecution be restrained?

E.
Can this Honorable Court itself determine the existence of probable cause?[20]

On the other hand, respondent contends that the issues raised by the petitioners had already become
moot and academic when the latter posted bail and were already arraigned.
On 2 August 2000, this Court issued a TRO[21] enjoining the judge of the MTCC from proceeding in any
manner with Criminal Case Nos. 6683 to 6686, effective during the entire period that the case is pending before,
or until further orders of, this Court.

We will first discuss the issue of mootness.

The issues raised by the petitioners have not been mooted by the fact that they had posted bail and were
already arraigned.

It appears from the records that upon the issuance of the warrant of arrest, petitioners immediately
posted bail as they wanted to avoid embarrassment, being then the officers of Urban Bank. On the scheduled
date for the arraignment, despite the petitioners refusal to enter a plea, the court a quo entered a plea of Not
Guilty for them.

The erstwhile ruling of this Court was that posting of bail constitutes a waiver of any irregularity in the
issuance of a warrant of arrest, that has already been superseded by Section 26, Rule 114 of the Revised Rule of
Criminal Procedure. The principle that the accused is precluded from questioning the legality of the arrest after
arraignment is true only if he voluntarily enters his plea and participates during trial, without previously
invoking his objections thereto.[22]

As held in Okabe v. Hon. Gutierrez:[23]

It bears stressing that Section 26, Rule 114 of the Revised Rules on Criminal Procedure is
a new one, intended to modify previous rulings of this Court that an application for bail or the
admission to bail by the accused shall be considered as a waiver of his right to assail the warrant
issued for his arrest on the legalities or irregularities thereon. The new rule has reverted to the
ruling of this Court in People v. Red. The new rule is curative in nature because precisely, it was
designed to supply defects and curb evils in procedural rules. Hence, the rules governing curative
statutes are applicable. Curative statutes are by their essence retroactive in application. Besides,
procedural rules as a general rule operate retroactively, even without express provisions to that
effect, to cases pending at the time of their effectivity, in other words to actions yet undetermined
at the time of their effectivity. Before the appellate court rendered its decision on January 31,
2001, the Revised Rules on Criminal Procedure was already in effect. It behoved the appellate
court to have applied the same in resolving the petitioners petition for certiorari and her motion
for partial reconsideration.

Moreover, considering the conduct of the petitioner after posting her personal bail bond,
it cannot be argued that she waived her right to question the finding of probable cause and to
assail the warrant of arrest issued against her by the respondent judge. There must be clear and
convincing proof that the petitioner had an actual intention to relinquish her right to question the
25
 existence of probable cause. When the only proof of intention rests on what a party does, his act
should be so manifestly consistent with, and indicative of, an intent to voluntarily and
unequivocally relinquish the particular right that no other explanation of his conduct is possible.
x x x.

Herein petitioners filed the Omnibus Motion to Quash, Recall Warrants of Arrest and/or For
Reinvestigation on the same day that they posted bail. Their bail bonds likewise expressly contained a
stipulation that they were not waiving their right to question the validity of their arrest. [24] On the date of their
arraignment, petitioners refused to enter their plea due to the fact that the issue on the legality of their arrest is
still pending with the Court. Thus, when the court a quo entered a plea of not guilty for them, there was no valid
waiver of their right to preclude them from raising the same with the Court of Appeals or this Court. The
posting of bail bond was a matter of imperative necessity to avert their incarceration; it should not be deemed as
a waiver of their right to assail their arrest. The ruling to which we have returned in People v. Red[25] stated:

x x x The present defendants were arrested towards the end of January, 1929, on the Island and Province
of Marinduque by order of the judge of the Court of First Instance of Lucena, Tayabas, at a time when
there were no court sessions being held in Marinduque. In view of these circumstances and the number
of the accused, it may properly be held that the furnishing of the bond was prompted by the sheer
necessity of not remaining in detention, and in no way implied their waiver of any right, such as the
summary examination of the case before their detention. That they had no intention of waiving this right
is clear from their motion of January 23, 1929, the same day on which they furnished a bond, and the
fact that they renewed this petition on February 23, 1929, praying for the stay of their arrest for lack of
the summary examination; the first motion being denied by the court on January 24, 1929 (G.R. No.
33708, page 8), and the second remaining undecided, but with an order to have it presented in Boac,
Marinduque.

Therefore, the defendants herein cannot be said to have waived the right granted to them by
section 13, General Order No. 58, as amended by Act No. 3042.

The rest of the issues raised by the petitioners may be grouped into two, which are: (1) the procedural
aspect, i.e., whether the prosecution and the court a quo properly observed the required procedure in the instant
case, and, (2) the substantive aspect, which is whether there was probable cause to pursue the criminal cases to
trial.
THE PROCEDURAL ASPECT:

Petitioners contend that they were denied due process as they were unable to submit their counter-affidavits and
were not accorded the right to a preliminary investigation. Considering that the complaint of Atty. Pea was filed
in September 1998, the rule then applicable was the 1985 Rules of Criminal Procedure.

The provisions of the 1985 Rules of Criminal Procedure relevant to the issue are Sections 1, 3(a) and
9(a) of Rule 112, to wit:

Section 1. Definition. Preliminary investigation is an

inquiry or proceeding for the purpose of determining whether
there is sufficient ground to engender a well founded belief that
a crime cognizable by the Regional Trial Court has been committed

26
 and that the respondent is probably guilty thereof, and should be
held for trial.

Sec. 3. Procedure. Except as provided for in Section 7

hereof, no complaint or information for an offense cognizable by
the Regional Trial Court shall be filed without a preliminary
investigation having been first conducted in the following
manner:

(a) The complaint shall state the known address of the respondent
and be accompanied by affidavits of the complainant and his
witnesses as well as other supporting documents, in such number
of copies as there are respondents, plus two (2) copies for the
official file. The said affidavits shall be sworn to before any
fiscal, state prosecutor or government official authorized to
administer oath, or, in their absence or unavailability, a notary
public, who must certify that he personally examined the affiants
and that he is satisfied that they voluntarily executed and
understood their affidavits.

Sec. 9. Cases not falling under the original jurisdiction of

the Regional Trial Courts nor covered by the Rule on Summary
Procedure.

(a) Where filed with the fiscal. If the complaint is filed

directly with the fiscal or state prosecutor, the procedure
outlined in Section 3(a) of this Rule shall be observed. The
fiscal shall take appropriate action based on the affidavits and
other supporting documents submitted by the complainant.
(underscoring supplied)

The crime to which petitioners were charged was defined and penalized under second paragraph of
Article 172 in relation to Article 171 of the Revised Penal Code.

Art. 172. Falsification by private individual and use of falsified documents. The penalty
of prision correccional in its medium and maximum periods and a fine of not more than P5,000
pesos shall be imposed upon:

1. Any private individual who shall commit any of the falsifications enumerated in the next
preceding article in any public or official document or letter of exchange or any other kind of
commercial document; and

2. Any person who, to the damage of a third party, or with the intent to cause such damage, shall
in any private document commit any of the acts of falsification enumerated in the next preceding
article.

Any person who shall knowingly introduce in evidence in any judicial proceeding or to the
damage of another or who, with the intent to cause such damage, shall use any of the false

27
 documents embraced in the next preceding article or in any of the foregoing subdivisions of this
article, shall be punished by the penalty next lower in degree.

Prision correccional in its medium and maximum periods translates to imprisonment of 2 years, 4
months and 1 day.[26] The next lower in degree to prision correccional is arresto mayor in its maximum period
to prision correccional in its minimum period which translates to 4 months and 1 day to 2 years and 4
months[27] of imprisonment. Since the crime committed is not covered by the Rules of Summary Procedure,
[28]
the case falls within the exclusive jurisdiction of the first level courts but applying the ordinary rules. In such
instance, preliminary investigation as defined in Section 1, Rule 112 of the 1985 Rules of Criminal Procedure is
not applicable since such section covers only crimes cognizable by the RTC. That which is stated in Section
9(a) is the applicable rule.

Under this Rule, while probable cause should first be determined before an information may be filed in court,
the prosecutor is not mandated to require the respondent to submit his counter-affidavits to oppose the
complaint. In the determination of probable cause, the prosecutor may solely rely on the complaint, affidavits
and other supporting documents submitted by the complainant. If he does not find probable cause, the
prosecutor may dismiss outright the complaint or if he finds probable cause or sufficient reason to proceed with
the case, he shall issue a resolution and file the corresponding information.

The complaint of respondent, verbatim, is as follows:

COMPLAINT AFFIDAVIT

I, MAGDALENO M. PEA, Filipino, of legal age, with address at Brgy. Ubay, Pulupandan,
Negros Occidental, after having been sworn in accordance with law hereby depose and state:

1. I am the Plaintiff in Civil Case No. 754 pending with the Regional Trial
Court of Bago City entitled Atty. Magdaleno M. Pea v. Urban Bank, et al Impleaded therein as
defendants of the board of the bank, namely, Teodoro Borlongan, Delfin Gonzales, Jr., Benjamin
De Leon, P. Siervo Dizon, Eric Lee, Ben Lim Jr., Corazon Bejasa and Arturo Manuel.
(underlining ours)

2. I filed the said case to collect my fees as agent of Urban Bank, Inc.
(hereinafter referred to as the bank) in ridding a certain parcel of land in Pasay City of squatters
and intruders. A certified true copy of the Complaint in the said case is hereto attached as Annex
A.

3. In the Motion to Dismiss dated 12 March 1996 (a certified true copy of

which is attached as Annex B), Answer dated 28 October 1996 (Annex C), and Pre-Trial Brief
dated 28 January 1997 (Annex D) filed by the bank and the respondent members of the board,
the said respondents used as evidence the following documents:

a. Letter dated 19 December 1994 supposedly signed by a certain Herman Ponce and Julie
Abad for Isabela Sugar Company (ISC) (a copy of which is attached as Annex E), which states:

December 19, 1994

28
Urban Bank
Urban Avenue, Makati
Metro Manila

Gentlemen:

This has reference to your property located among Roxas Boulevard, Pasay City which you
purchased from Isabela Sugar Company under a Deed of Absolute Sale executed on December 1,
1994.

In line with our warranties as the Seller of the said property and our undertaking to deliver to you
the full and actual possession and control of said property, free from tenants, occupants or
squatters and from any obstruction or impediment to the free use and occupancy of the property
and to prevent the former tenants or occupants from entering or returning to the premises. In
view of the transfer of ownership of the property to Urban Bank, it may be necessary for Urban
Bank to appoint Atty. Pea likewise as its authorized representative for purposes of
holding/maintaining continued possession of the said property and to represent Urban Bank in
any court action that may be instituted for the abovementioned purposes.

It is understood that any attorneys fees, cost of litigation and any other charges or expenses that
may be incurred relative to the exercise by Atty. Pea of his abovementioned duties shall be for
the account of Isabela Sugar Company and any loss or damage that may be incurred to third
parties shall be answerable by Isabela Sugar Company.

Very truly yours,

Isabela Sugar Company

By:

HERMAN PONCE

JULIE ABAD

b. Memorandum dated 7 December 1994 supposedly executed by a certain Marilyn Ong on

behalf of ISC, a copy of which is hereto attached as annex F, which states:

December 7, 1994

To: ATTY. CORA BEJASA

From: MARILYN G. ONG

RE: ISABELA SUGAR CO., INC.

Atty. Magdaleno M. Pea, who has been assigned by Isabela Sugar Company inc. to take charge
of inspecting the tenants would like to request an authority similar to this from the Bank to new
owners. Can you please issue something like this today as he (unreadable) this.

29
 b. Letter dated 9 December 1994 supposedly executed by the same Marilyn Ong, a
copy of which is hereto attached as Annex G, which states:

December 9, 1994

Atty. Ted Borlongan

URBAN BANK OF THE PHILIPPINES
MAKATI, METRO MANILA

Attention: Mr. Ted Borlongan

Dear Mr. Borlongan

I would like to request for an authority from Urban Bank per attached immediately as the tenants
are questioning authority of the people who are helping us to take possession of the property.

Marilyn Ong

c. Memorandum dated 20 November 1994, copy of which is attached as annex H,

which states:

MEMORANDUM
To: Atty. Magadaleno M. Pea
Director

From: Enrique C. Montilla III

President

Date: 20 November 1994

You are hereby directed to recover and take possession of the property of the corporation situated
at Roxas Boulevard covered by TCT No. 5382 of the Registry of Deeds for Pasay City,
immediately upon the expiration of the contract of lease over the said property on 29 November
1994. For this purpose, you are authorized to engage the services of security guards to protect the
property against intruders. You may also engage the services of a lawyer in case there is a need to
go to court to protect the said property of the corporation. In addition, you may take whatever
steps or measures are necessary to ensure our continued possession of the property.

ENRIQUE C. MONTILLA III

President

4. The respondent member of the board of the bank used and introduced the aforestated
documents as evidence in the civil case knowing that the same are falsified. They used thae
said documents to justify their refusal to pay my agents fees, to my damage and prejudice.

30
 5. The 19 December 1994 letter (Annex E) is a falsified document, in that the person who
supposedly executed the letter on behalf of ISC, a certain Herman Ponce and Julie Abad did
not actually affix their signatures on the document. The execution of the letter was merely
simulated by making it appear that Ponce and Abad executed the letter on behalf of ISC when
they did not in fact do so.

6. No persons by the name of Herman Ponce and Julie Abad were ever stockholders, officers,
employees or representatives of ISC. In the letter, Herman Ponce was represented to be the
President of ISC and Julie Abad, the Corporate Secretary. However, as of 19 December 1994,
the real President of plaintiff was Enrique Montilla, III and Cristina Montilla was the
Corporate Secretary. A copy of the Minutes of the Regular Meeting of ISC for the year 1994,
during which Montilla, et al. Were elected is hereto attached as Annex I. On the otherhand, a
list of the stockholders of ISC on or about the time of the transaction is attached as Annex J.

7. The same holds true with respect to the Memorandum dated 7 December 1994 and athe
letter dated 9 December 1994 allegedly written by a ceratin Marilyn Ong. Nobody by the said
name was ever a stockholder of ISC.

8. Lastly, with respect to the supposed Memorandum issued by Enrique Montilla, III his
signature thereon was merely forged by respondents. Enrique Montilla III, did not affix his
signature on any such document.

9. I am executing this affidavit for the purpose of charging Teodoro C. Borlongan, Corazon
M. Bejasa and Arturo E. Manuel, Delfin C. Gonzales Jr., Benjamin L. De Leon, P. Siervo H.
Dizon and Eric Lee, with the crime of use of falsified documents under Artilce 172,
paragraph 2, of the Revised Penal Code.(underlining ours)

10. I am likewise executing this affidavit for whatever legal purpose it may serve.

FURTHER AFFIANT SAYETH NAUGHT.

Sgd. MAGDALENO M. PEA

It is evident that in the affidavit-complaint, specifically in paragraph 1, respondent merely introduced and
identified the board of the bank, namely, Teodoro Borlongan, Jr., Delfin Gonzales, Jr., Benjamin De Leon, P.
Siervo Dizon, Eric Lee, Ben Lim, Jr., Corazon Bejasa and Arturo Manuel, Sr. However, in the accusatory
portion of the complaint which is paragraph number 9, Mr. Ben Lim, Jr. was not included among those
charged with the crime of use of falsified documents under Article 172, paragraph 2, of the Revised Penal
Code. The omission indicates that respondent did not intend to criminally implicate Mr. Ben Lim, Jr., even as he
was acknowledged to be a member of the board. And there was no explanation in the Resolution and
Information by the City Prosecutor why Mr. Ben Lim, Jr. was included. Moreover, as can be gleaned from the
body of the complaint and the specific averments therein, Mr. Ben Lim, Jr. was never mentioned.

The City Prosecutor should have cautiously reviewed the complaint to determine whether there were
inconsistencies which ought to have been brought to the attention of the respondent or, on his own, considered
for due evaluation. It is a big mistake to bring a man to trial for a crime he did not commit.

31
 Prosecutors are endowed with ample powers in order that they may properly fulfill their assigned role in
the administration of justice. It should be realized, however, that when a man is hailed to court on a criminal
charge, it brings in its wake problems not only for the accused but for his family as well. Therefore, it behooves
a prosecutor to weigh the evidence carefully and to deliberate thereon to determine the existence of a prima
facie case before filing the information in court. Anything less would be a dereliction of duty.[29]

Atty. Pea, in his Second Manifestation [30] dated 16 June 1999, averred that petitioners, including Mr. Ben
Lim, Jr., were already estopped from raising the fact that Mr. Ben Lim, Jr. was not a member of the board of
directors of Urban Bank, as the latter participated and appeared through counsel in Civil Case No. 754 without
raising any opposition. However, this does not detract from the fact that the City Prosecutor, as previously
discussed, did not carefully scrutinize the complaint of Atty. Pea, which did not charge Mr. Ben Lim, Jr. of any
crime.

What tainted the procedure further was that the Judge issued a warrant for the arrest of the petitioners,
including, Mr. Ben Lim, Jr. despite the filing of the Omnibus Motion to Quash, Recall Warrants of Arrest and/or
For Reinvestigation raising among others the issue that Mr. Ben Lim, Jr., was not even a member of the board of
directors. With the filing of the motion, the judge is put on alert that an innocent person may have been included
in the complaint. In the Order[31] dated 13 November 1998, in denying the motion to quash, Judge Primitivo
Blanca ruled that:

Courts in resolving a motion to quash cannot consider facts contrary to those alleged in the
information or which do not appear on the face of the information because said motion is
hypothethical admission of the facts alleged in the information x x x. (citations omitted.)

We cannot accept as mere oversight the mistake of respondent judge since it was at the expense of
liberty. This cannot be condoned.

In the issuance of a warrant of arrest, the mandate of the Constitution is for the judge to personally determine
the existence of probable cause:

Section 2, Article III of the Constitution provides:

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

Corollary thereto, Section 9(b) of the 1985 Rules of Criminal Procedure provides:

Sec. 9. Cases not falling under the original jurisdiction of the

Regional Trial Courts nor covered by the Rule on Summary
Procedure.

(a) x x x.

(b) Where filed directly with the Municipal Trial Court. If the
complaint or information is filed directly with the Municipal

32
 Trial Court, the procedure provided for in Section 3(a) of this
Rule shall likewise be observed. If the judge finds no sufficient
ground to hold the respondent for trial, he shall dismiss the
complaint or information. Otherwise, he shall issue a warrant of
arrest after personally examining in writing and under oath the
complainant and his witnesses in the form of searching questions
and answers.

Enshrined in our Constitution is the rule that [n]o x x x warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing x x x the persons x x x to be seized.
[32]
Interpreting the words personal determination, we said in Soliven v. Makasiar[33] that it does not thereby
mean that judges are obliged to conduct the personal examination of the complainant and his witnesses
themselves. To require thus would be to unduly laden them with preliminary examinations and investigations of
criminal complaints instead of concentrating on hearing and deciding cases filed before them. Rather, what is
emphasized merely is the exclusive and personal responsibility of the issuing judge to satisfy himself as to the
existence of probable cause. To this end, he may: (a) personally evaluate the report and the supporting
documents submitted by the prosecutor regarding the existence of probable cause and, on the basis thereof,
issue a warrant of arrest; or (b) if on the basis thereof he finds no probable cause, disregard the prosecutor's
report and require the submission of supporting affidavits of witnesses to aid him in determining its
existence. What he is never allowed to do is to follow blindly the prosecutor's bare certification as to the
existence of probable cause. Much more is required by the constitutional provision. Judges have to go over
the report, the affidavits, the transcript of stenographic notes if any, and other documents supporting the
prosecutor's certification. Although the extent of the judge's personal examination depends on the
circumstances of each case, to be sure, he cannot just rely on the bare certification alone but must go
beyond it. This is because the warrant of arrest issues not on the strength of the certification standing alone but
because of the records which sustain it. [34] He should even call for the complainant and the witnesses to answer
the court's probing questions when the circumstances warrant.[35]

An arrest without a probable cause is an unreasonable seizure of a person, and violates the privacy of
persons which ought not to be intruded by the State.[36]

Measured against the constitutional mandate and established rulings, there was here a clear abdication of the
judicial function and a clear indication that the judge blindly followed the certification of a city prosecutor as to
the existence of probable cause for the issuance of a warrant of arrest with respect to all of the petitioners. The
careless inclusion of Mr. Ben Lim, Jr., in the warrant of arrest gives flesh to the bone of contention of petitioners
that the instant case is a matter of persecution rather than prosecution. [37]On this ground, this Court may enjoin
the criminal cases against petitioners. As a general rule, criminal prosecutions cannot be enjoined. However,
there are recognized exceptions which, as summarized in Brocka v. Enrile,[38] are:

a. To afford adequate protection to the constitutional rights of the accused;[39]

b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity
of actions;[40]

c. When there is a prejudicial question which is sub judice;[41]

d. When the acts of the officer are without or in excess of authority;[42]

33
 e. Where the prosecution is under an invalid law, ordinance or regulation;[43]

f. When double jeopardy is clearly apparent;[44]

g. Where the court had no jurisdiction over the offense;[45]

h. Where it is a case of persecution rather than prosecution;[46]

i. Where the charges are manifestly false and motivated by the lust for vengeance;[47] and

j. When there is clearly no prima facie case against the accused and a motion to quash on that
ground has been denied.[48]

THE SUBSTANTIVE ASPECT:

Petitioners were charged with violation of par. 2, Article 172 of the Revised Penal Code or Introduction of
Falsified Document in a judicial proceeding. The elements of the offense are as follows:
1. That the offender knew that a document was falsified by another person.
2. That the false document is embraced in Article 171 or in any subdivisions Nos. 1 or
2 of Article 172.
3. That he introduced said document in evidence in any judicial proceeding.[49]

The falsity of the document and the defendants knowledge of its falsity are essential elements of the
offense. The Office of the City Prosecutor filed the Informations against the petitioners on the basis of the
Complaint-Affidavit of respondent Atty. Pea, attached to which were the documents contained in the Motion to
Dismiss filed by the petitioners in Civil Case No. 754. Also included as attachments to the complaint were the
Answers, Pre-Trial Brief, the alleged falsified documents, copy of the regular meetings of ISCI during the
election of the Board of Directors and the list of ISCI Stockholders. [50] Based on these documents and the
complaint-affidavit of Atty. Pea, the City Prosecutor concluded that probable cause for the prosecution of the
charges existed. On the strength of the same documents, the trial court issued the warrants of arrest.

This Court, however, cannot find these documents sufficient to support the existence of probable cause.

Probable cause is such set of facts and circumstances as would lead a reasonably discreet and prudent man to
believe that the offense charged in the Information or any offense included therein has been committed by the
person sought to be arrested. In determining probable cause, the average man weighs the facts and
circumstances without restoring to the calibrations of the rules of evidence of which he has no technical
knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing
that, more likely than not, a crime has been committed and that it was committed by the accused. Probable
cause demands more than suspicion; it requires less than evidence that would justify conviction.[51]

As enunciated in Baltazar v. People,[52] the task of the presiding judge when the Information is filed with
the court is first and foremost to determine the existence or non-existence of probable cause for the arrest of the
accused.
The purpose of the mandate of the judge to first determine probable cause for the arrest of the accused is
to insulate from the very start those falsely charged with crimes from the tribulations, expenses and anxiety of a
public trial.[53]

34
 We do not see how it can be concluded that the documents mentioned by respondent in his complaint-
affidavit were falsified. In his complaint, Atty. Pea stated that Herman Ponce, Julie Abad and Marilyn Ong, the
alleged signatories of the questioned letters, did not actually affix their signatures therein; and that they were not
actually officers or stockholders of ISCI.[54] He further claimed that Enrique Montillas signature appearing in
another memorandum addressed to respondent was forged.[55] These averments are mere assertions which are
insufficient to warrant the filing of the complaint or worse the issuance of warrants of arrest. These averments
cannot be considered as proceeding from the personal knowledge of herein respondent who failed to, basically,
allege that he was present at the time of the execution of the documents. Neither was there any mention in the
complaint-affidavit that herein respondent was familiar with the signatures of the mentioned signatories to be
able to conclude that they were forged. What Atty. Pea actually stated were but sweeping assertions that the
signatories are mere dummies of ISCI and that they are not in fact officers, stockholders or representatives of
the corporation. Again, there is no indication that the assertion was based on the personal knowledge of the
affiant.

The reason for the requirement that affidavits must be based on personal knowledge is to guard against
hearsay evidence. A witness, therefore, may not testify as what he merely learned from others either because he
was told or read or heard the same. Such testimony is considered hearsay and may not be received as proof of
the truth of what he has learned.[56] Hearsay is not limited to oral testimony or statements; the general rule that
excludes hearsay as evidence applies to written, as well as oral statements.[57]

The requirement of personal knowledge should have been strictly applied considering that herein
petitioners were not given the opportunity to rebut the complainants allegation through counter-affidavits.

Quite noticeable is the fact that in the letter dated 19 December 1994 of Herman Ponce and Julie Abad, neither
of the two made the representation that they were the president or secretary of ISCI. It was only Atty. Pea who
asserted that the two made such representation. He alleged that Marilyn Ong was never a stockholder of ISCI
but he did not present the stock and transfer book of ISCI. And, there was neither allegation nor proof that
Marilyn Ong was not connected to ISCI in any other way. Moreover, even if Marilyn Ong was not a stockholder
of ISCI, such would not prove that the documents she signed were falsified.

The Court may not be compelled to pass upon the correctness of the exercise of the public prosecutors
function without any showing of grave abuse of discretion or manifest error in his findings. [58] Considering,
however, that the prosecution and the court a quo committed manifest errors in their findings of probable cause,
this Court therefore annuls their findings.

Our pronouncement in Jimenez v. Jimenez[59] as reiterated in Baltazar v. People is apropos:

It is x x x imperative upon the fiscal or the judge as the case may be, to relieve the accused from
the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a
prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the
accused. Although there is no general formula or fixed rule for the determination of probable
cause since the same must be decided in the light of the conditions obtaining in given situations
and its existence depends to a large degree upon the finding or opinion of the judge conducting
the examination, such a finding should not disregard the facts before the judge nor run counter to
the clear dictates of reasons. The judge or fiscal, therefore, should not go on with the prosecution
in the hope that some credible evidence might later turn up during trial for this would be a
flagrant violation of a basic right which the courts are created to uphold. It bears repeating that
the judiciary lives up to its mission by visualizing and not denigrating constitutional rights. So it
has been before. It should continue to be so.

35
On the foregoing discussion, we find that the Court of Appeals erred in affirming the findings of the prosecutor
as well as the courta quo as to the existence of probable cause. The criminal complaint against the petitioners
should be dismissed.

WHEREFORE, the petition is hereby GRANTED. The Decision of the Court of Appeals dated 20
June 2000, in CA-G.R. SP No. 49666, is REVERSED and SET ASIDE. The Temporary Restraining Order
dated 2 August 2000 is hereby made permanent. Accordingly, the Municipal Trial Court in Cities, Negros
Occidental, Bago City, is hereby DIRECTED to DISMISS Criminal Case Nos. 6683, 6684, 6685 and 6686.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

WE CONCUR:

ARTURO D. BRION
Associate Justice
Acting Chairperson

MARIANO C. DEL CASTILLO MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

ATTESTATION

36
I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to
the writer of the opinion of the Courts Division.

ARTURO D. BRION
Associate Justice
Acting Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is hereby
certified that the conclusions in the above Decision were reached in consultation before the case was assigned to
the writer of the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

* Per Raffle dated 27 April 2010, Associate Justice Martin S. Villarama, Jr., is designated an additional member
in place of Associate Justice Roberto A. Abad who inhibited himself due to close association with one of
the parties.
** Chief Justice Reynato S. Puno was originally designated as an additional member per raffle dated 15
February 2010 in lieu of Associate Justice Antonio T. Carpio who inhibited himself due to a related
case. However, per Special Order No. 836 dated 12 April 2010, Associate Justice Jose Catral Mendoza is
designated an additional member of the Second Division, whether Regular or Special, relative to cases
wherein Chief Justice Reynato S. Puno was designated as additional member in view of the Chief
Justice forthcoming retirement.
[1]
Penned by Associate Justice Romeo A. Brawner with Associate Justices Quirino D. Abad Santos, Jr. and
Andres B. Reyes, Jr. concurring; rollo, pp. 50-60.
[2]
Id. at 61-66.
[3]
The contract was allegedly confirmed in a letter addressed to the respondent, the pertinent portion of which
reads:
xxxx
This is to confirm the engagement of your services as the authorized representative of
Urban Bank, specifically to hold and maintain possession of our above [-]captioned property and
to protect the same from former tenants, occupants or any other person who are threatening to
return to the said property and/or interfere with your possession of the said property for and in
our behalf.
You are likewise authorized to represent Urban Bank in any court action that you may
institute to carry out your aforementioned duties, and to prevent any intruder, squatter or any

37
 other person not otherwise authorized in writing by Urban Bank from entering or staying in the
premises. Id. at 69.
[4]
Id. at 72-87.
[5]
Id. at 96.
[6]
Id. at 97.
[7]
Id. at 98.
[8]
Id. at 99. Also at CA rollo, p. 304.
[9]
Id. at 106-109.
[10]
The case was docketed as I.S. Case No. 9248.
[11]
Rollo, p. 108.
[12]
The dispositive portion of which reads:
Wherefore, In view of all the foregoing, undersigned finds probable cause that the crime of Introducing
Falsified Documents in evidence under par. 2, Article 172, Revised Penal Code (4 counts) had been
committed and that respondents Teodoro Borlongan, Jr., Delfin Gonzalez, Jr., Benjamin de Leon, P.
Siervo Dizon, Eric Lee, Ben Lim, Jr., Corazon Bejasa, and Arturo Manuel are probably guilty.
Let Information be filed with the Municipal Trial Court in Cities, City of Bago, Philippines.
SO RESOLVED. (Id. at 110-114).
[13]
Id. at 113-114.
[14]
Id. at 115-122.
[15]
Id. at 123-126.
[16]
Id. at 127-142.
[17]
The dispositive portion reads:
WHEREFORE, premises considered, the Omnibus Motion to Quash, Recall Warrants of Arrest and/or For
reinvestigation is hereby denied.
Set arraignment of the accused on December 1, 1998 at 8:30 oclock in the morning.
SO ORDERED. (Id. at 143-150.)
[18]
Id. at 151-186.
[19]
Id. at 50-60.
[20]
Id. at 13-14.
[21]
Id. at 518-522.
[22]
People v. Vallejo, 461 Phil. 672, 686 (2003); People v. Palijon, 397 Phil. 545, 556 (2000).
[23]
473 Phil. 758, 776-777 (2004).
[24]
CA rollo, pp. 902-903.
[25]
55 Phil. 706, 711 (1931).
[26]
Luis B. Reyes, The Revised Penal Code, Criminal Law, Fourteenth Edition, Revised 1998, Appendix A,
Table No. 15, p. 1010.
[27]
Id. at 1008.
[28]
(1) Violations of traffic laws, rules and regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) All other criminal cases where the penalty prescribed by law for the offense charged is imprisonment
not exceeding six months, or a fine not exceeding one thousand pesos (P1,000.00), or both, irrespective
of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom: Provided,
however, That in offenses involving damage to property through criminal negligence, this Rule shall
govern where the imposable fine does not exceed ten thousand pesos (P10,000.00).

This Rule shall not apply to a civil case where the plaintiffs cause of action is pleaded in the same
complaint with another cause of action subject to the ordinary procedure; nor to a criminal case where
the offense charged is necessarily related to another criminal case subject to the ordinary procedure.

38
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 181318 April 16, 2009

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
GERMAN AGOJO y LUNA, Appellant.

DECISION

TINGA, J.:

Subject of this appeal is the March 30, 2007 decision 1 of the Court of Appeals in CA-G.R. CR-H.C.
No. 00946, affirming the November 11, 2002 judgment 2 of the Regional Trial Court (RTC) of Tanauan,
Batangas, finding appellant German Agojo y Luna guilty of violation of Section 15, Article III of
Republic Act (R.A.) No. 6425.

Appellant was charged with illegal sale of shabu in an Information dated October 14, 1999, the
accusatory portion of which reads:

39
That on or about the 27th day of August 1999 at about 11:30 oclock in the evening at Poblacion,
Municipality of Tanauan, Province of Batangas, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, without authority of law, did then and there willfully,
unlawfully and feloniously sell, and deliver (4) plastic bags of methamphetamine hydrochloride
commonly known as "shabu," weighing 51.00, 51.10, 52.67 and 51.55 grams, with a total weight of
206.32 grams, a regulated dangerous drug.

Contrary to law.3

Appellant was also charged with violation of Presidential Decree No. 1866 (P.D. No. 1866) as
amended by Republic Act No. 8294 in an Information, the accusatory portion of which reads:

That on or about the 27th day of August 1999 at about 11:30 oclock in the evening at Poblacion,
Municipality of Tanauan, Province of Batangas, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously
have in his possession, custody and control one (1) caliber .45 pistol Ithaca with defaced serial
number, one (1) magazine and seven (7) rounds of live ammunitions for caliber .45, without having
secured the necessary license and/or permit from the proper authorities to possess the same.

Contrary to law. 4

Appellant entered a not guilty plea upon arraignment. 5 Thereafter, trial ensued. As culled from the
record, the evidence for the prosecution is as follows:

On August 23, 1999, Rodolfo Alonzo, a civilian informant, reported the drug trading activities of
appellant to Police Chief Inspector Ablang.6 Alonzo narrated that appellant agreed to sell him 200
grams of shabu for P70,000.00 on a 50% cash and 50% credit basis. The sale was to take place in
front of the Mercado Hospital in Tanauan, Batangas, on August 27, 1999 at 11:30 p.m. Ablang formed
a team to conduct the buy-bust operation.7

On August 27, 1999, the team proceeded to Mercado Hospital. Ablang then entrusted Alonzo
with P71,000.00 each marked "JUA." Alonzo was instructed to remove his hat to signal the team that
the sale had been consummated. The buy-bust team arrived at Mercado Hospital at 11:00 p.m. The
team members immediately took strategic positions. Alonzo stayed in an eatery in front of the
hospital.8

Agojo arrived at 11:30 p.m. aboard a white Mitsubishi Lancer (Lancer) with plate number DRW-392.
Appellant then approached Alonzo to ask if the latter had the money. Alonzo handed appellant the
marked money. Appellant took a VHS box from his car and handed it to Alonzo. Appellant and Alonzo
then walked along the hospital gate near the emergency room. Appellant then entered the hospital.

Alonzo examined the VHS box then took off his cap to signal the buy-bust team. The buy-bust team
immediately proceeded to the scene. Alonzo told the team that appellant had entered the hospital.
Alonzo handed the VHS box to Ablang. Upon examination, the box was found to contain four (4)
plastic bags of a crystalline substance which the team suspected was shabu. Ablang instructed
Salazar to inform the appellant that his car had been bumped.

Appellant then exited from the hospital via the emergency room door. Salazar introduced himself as a
policeman and attempted to arrest HIM.9 Appellant resisted, but the other team members handcuffed
appellant. The team recovered P10,000.00 of the buy-bust money. Ablang opened appellants Lancer
40
and recovered a .45 caliber pistol containing seven (7) bullets and a Panasonic cellular phone from
the passenger seat.

Arsenio Ricero, the Chief of the PNP Batangas Intelligence and Investigation Section, later requested
a laboratory examination of the contents of the four (4) plastic sachets confiscated from
appellant.10 Lorna Tria, a chemist at the Philippine National Police (PNP) crime laboratory in Camp
Vicente Lim conducted an examination of the four (4) plastic sachets. The examination revealed that
the sachets contained methamphetamine hydrochloride with a total weight of 206.32 grams.

Appellant presented a different version of the facts, in support of the defenses of denial and frame up.
He said that on August 27, 1999, appellant arrived at Mercado Hospital at 8:25 p.m. Thereafter, he
stayed in the room of a certain Imelda Papasin. At this time, his wife, Precilla was also confined in the
hospital. She had asked him to bring money to settle her bills, so she could be discharged the next
day. Upon being informed by a security guard that his car had been sideswiped, he went down. The
police later arrested him when he reached the ground floor. The police later opened his car. He was
made to board a police vehicle. While aboard, the police confiscated P6,000.00 in cash, a wrist watch
and a necklace from him. He was brought to the police headquarters in Kumintang Ilaya, Batangas
City.

In a Decision11 dated November 11, 2002, the RTC found appellant guilty beyond reasonable doubt of
the charge against him for violation of Section 15 12 of R.A. No. 6425 and acquitted him of the charge
of violation of P.D. No. 1866 for lack of sufficient evidence. The case was brought on automatic review
before the Supreme Court, since appellant was sentenced to death by the trial court. 13

In his brief dated July 30, 2003,14 appellant imputed three (3) errors to the trial court, namely: (1) the
trial court convicted him despite failure of the prosecution to overcome the presumption of innocence
and to prove his guilt beyond reasonable doubt; (2) the trial court erred in relying on the weakness of
the defense rather than on the strength of the prosecution evidence; and (3) the trial court erred in
considering the aggravating circumstances of nighttime and use of a motor vehicle.

On September 28, 2003, Agojo moved for new trial ad cautelam. 15 Appellant claimed to have secured
the statistical data list from the cash department of Bangko Sentral ng Pilipinas that seven (7) of
the P71,000.00 peso bills used in the buy-bust operation on September 4, 2003 were bogus.
Appellant claimed that Ablang must have merely copied the serial numbers of bills of other
denominations when he ran out of serial numbers of one thousand peso bills.

In his brief dated January 30, 2004, for the People, the Solicitor General asserted that the positive
declarations of Alonzo and the buy-bust team should prevail over Agojos self-serving denial and
allegations of having been framed up.16 However, he urged the court to lower Agojos penalty
to reclusion perpetua, as the trial court erred in ruling that nighttime and the use of a motor vehicle
had attended the offense.

On March 2, 2004, the Solicitor General filed its comment on Agojos motion for new trial, 17 averring
that the motion lacked merit since, during the trial, appellant could have secured during the trial the
BSPs certification which was relied upon for the new trial sought.

In a resolution dated August 31, 2004, this Court transferred the case to the appellate court for
intermediate review, following the ruling in People v. Mateo. 18 An exchange of pleadings before the
appellate court followed, wherein the parties reiterated their earlier stances.

41
On March 30, 2007, the appellate court addressed both the errors raised in the appellants brief and
the appellants motion for new trial. It affirmed with modification the decision of the trial court, but
reduced the penalty to reclusion perpetua in line with Republic Act No. 9346, "An Act Prohibiting the
Imposition of the Death Penalty in the Philippines," and because of the finding that aggravating
circumstances were not present.19

The case was again elevated to this Court. In a resolution dated March 19, 2008, this Court required
the parties to file their supplemental briefs.20

The Solicitor General demurred, averring that the brief earlier filed with the Court was sufficient. 21

Appellant filed a supplemental memorandum, reiterating that the appellate court had
erred.22 Appellant maintains that the prosecution was not able to prove his guilt beyond reasonable
doubt.23 He also claims that the evidence proves that he was in fact framed-up by the buy-bust team.

The appeal lacks merit.

The errors raised by the appellant boil down to the issue of whether appellants guilt was proven
beyond reasonable doubt, as well as to the question whether appellant was framed-up by the buy-
bust team.

A thorough review of the records clearly shows that the prosecution proved beyond reasonable
doubt that appellant sold the shabu to the poseur-buyer. The testimony of Alonzo on the sale of
illegal drugs and the identification of appellant as the seller is clear and straightforward, thus: 24

xxx

Q: And after you were informed by German Agojo that he has only 200 grams available, what
else did you tell him, if any?

A: We talked about the price and we agreed that will be in cash and will be on
consignment which is P70,000.00 per 100 grams, sir.25

xxxx

Q: Did you call up German Agojo on the date you agreed?

A: Yes, sir.

Q: When was that?

A: In the evening of August of 27, 1999 at about 7:00 oclock in the evening, sir.

Q: And what was the subject of your conversation?

A: We agreed that we will meet at the Mercado Hospital, sir. 26

xxxx

42
 Q: After you talked with German Agojo about the deal to be performed at the Mercado Hospital
at 11:00 oclock in the evening of August 27, 1999, what happen next?

A: Major Ablang organized a team who will be proceeding to Mercado Hospital, sir. 27

xxxx

Q: What else did Major Ablang do, if any, aside from organizing a team to proceed to Mercado
Hospital, Tanauan, Batangas?

A: Major Ablang gave me the money, P70,000.00, supposed to be paid for the 100 grams
of shabu, sir.28

xxxx

Q: Did he give instruction to you on that night when to proceed to Tanauan, Batangas?

A: Yes, sir.

Q: What was the instruction?

A: He told me that whatever is my agreement with German Agojo, I have to do it and he even
instructed me to give signal to his men, sir. 29

xxxx

Q: What was then that signal you agreed with SPO4 Calapati?

A: To remove my hat or cap, sir.

Q: And after that instruction was made by Major Ablang, what else happened?

A: We waited for a while and after [sic] few hours, we proceeded to Tanauan, Batangas, sir. 30

xxxx

Q: Was there a time that German Agojo arrived?

A: Yes, sir.

Q: How many minutes interval from your arrival up to the time German Agojo arrived?

A: Around thirty minutes, sir.

Q: When he arrived, were you inside your vehicle or outside?

A: Outside, sir.

Q: When he arrived, what happened?

43
 A: He approached me and asked me if I brought the money.

Q: And what was your answer?

A: I told him that I have the money and gave it to him, sir.

Q: You gave the P70,000.00 to German Agojo?

A: Yes, sir.

Q: After you gave the money to him, what happened?

A: After that he returned to his car and took something, sir, and when he came back he
presented to me a cassette tape case saying "it is there," sir.

Q: After you received the cassette tape case, what did you do?

A: After that he placed his hand on my shoulder. We went to the emergency room near the
gate and he entered the hospital, sir.

Q: What did you do with the cassette tape case?

A: After examining the cassette tape case and [sic] I found that there was shabu inside and I
gave a signal to SPO4 Calapati, sir.

Q: What else happened after you made that signal?

A: SPO4 Calapati and PO3 Salazar approached me and inquired if it is shabu and I told them
that it is shabu then they informed Major Ablang, sir.31

xxx

Q: After that, what else happened?

A: Major Ablang approached me and I handed to him the cassette tape case, sir.

Q: How about the suspected shabu which according to you was placed inside the cassette
tape case?

A: I handed it also to Major Ablang, sir.

Q: After you handed the same to Major Ablang, what else happened?

A: They requested the security guard of Mercado Hospital to inform German Agojo that his car
was bumped for him to get out of the hospital, sir.

Q: Did the security guard inform(ed) German Agojo?

A: Yes, sir.

44
 Q: What happened after that?

A: He went down, sir.

Q: In what particular place of Mercado Hospital did he go when you said he went down?

A: At the lobby of the hospital, sir, near the emergency room.

Q: After he went down the hospital, what happened?

A: PO3 Salazar introduced himself as a policeman to German Agojo and informed him that he
is arresting him, sir, and there was a scuffle because German Agojo resisted, arrest, sir. 32

The testimony of Alonzo was corroborated by members of the buy-bust team, particularly
Calapati33 and Salazar,34who both testified that they saw appellant hand Alonzo the VHS tape
containing the shabu despite only partial payment for the shabu.

Appellants assertion that he was framed-up has no merit. In almost every case involving a buy-bust
operation, the accused puts up the defense of frame-up. This court has repeatedly emphasized that
the defense of "frame-up" is viewed with disfavor, 35 since the defense is easily concocted and is a
common ploy of the accused.36 Therefore, clear and convincing evidence of the frame-up must be
shown for such a defense to be given merit. 37

In this case, appellant points to the arrest not being in flagrante delicto, the existence of discrepancies
in the serial numbers of the buy-bust money and a prior attempt to frame him up as proofs of the
frame-up. However, the fact that the arrest was not in flagrante delicto is of no consequence. The
arrest was validly executed pursuant to Section 5, paragraph (b) of Rule 113 of the Rules of Court,
which states:

Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a
warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense; (b) When an offense has in fact been
committed and he has personal knowledge of facts indicating that the person to be arrested has
committed it; and, (c) When the person to be arrested is a prisoner who has escaped from penal
establishment or place where he is serving final judgment or temporarily confined while his case is
pending, or has escaped while being transferred from one confinement to another. (Emphasis
supplied)1avvphi1

The second instance of lawful warrantless arrest covered by paragraph (b) cited above necessitates
two stringent requirements before a warrantless arrest can be effected: (1) an offense has just been
committed; and (2) the person making the arrest has personal knowledge of facts indicating that the
person to be arrested has committed it. 38 A review of the records shows that both requirements were
met in this case.

From the spot where the buy-bust team was, they definitely witnessed the sale of shabu took place.
So, too, there was a large measure of immediacy between the time of commission of the offense and
the time of the arrest.39 After Alonzo had signaled the buy-bust team when he received the VHS tape
from appellant, Ablang approached Alonzo and immediately examined the tape. 40 Soon thereafter, he
executed the ruse to make appellant to go down, as the latter had in the meantime gone up. The ruse
succeeded when appellant went down, and he was arrested right then and there.
45
There is similarly little weight in the claim of appellant that the inconsistencies revealed by the Bangko
Sentral ng Pilipinas (BSP) certification in the serial numbers of the marked money, as well as the fact
that only a fraction of the money was recovered, should exonerate him. The marked money used in
the buy-bust operation is not indispensable in drug cases. 41 Otherwise stated, the absence of marked
money does not create a hiatus in the evidences provided that the prosecution adequately proves the
sale.42 Only appellant would know what happened to the rest of the marked money since
only P10,000.00 out of the P70,000.00 was recovered from him. In any event, the partial recovery of
the marked money from appellant would indicate that the buy-bust operation did take place.

Questions have been raised in connection with the admitted peculiar business sense of the
appellantselling 200 grams of shabu for P70,000.00 and accepting payment by installments for the
contraband. This aspect of the tale may strike as incredulous, but the evidence is plain that it did
happen. Truth may sometimes be stranger than fiction, and as long as such truth is corroborated by
evidence, the Court is bound by the facts.43

This Court has also taken judicial notice that drug pushers sell their wares to any prospective
customer, stranger or not, in both public or private places, with no regard for time as they have
become increasingly daring and blatantly defiant of the law. 44 It is therefore not surprising that drug
pushers will even accept partial payment for their wares with the balance payable on installment.

Appellants assertion that the chain of custody over the drugs was not preserved also lacks merit. A
thorough review of the records of this case reveals that the chain of custody of the seized substance
was not broken, and that the prosecution properly identified the drugs seized in this case. Appellant
sold the drugs to Alonzo in a legitimate buy-bust operation. 45 Alonzo then handed the VHS tape
containing the drugs to Major Ablang, 46 who kept the drugs during appellants

detention, and then turned them over to Ricero, so that the packets could be marked when the buy-
bust team returned with Agojo to the Police Provincial Office in Kumintang Ilaya, Batangas. 47 The
drugs, along with a letter request, were then sent by Ricero to the PNP crime laboratory in Camp
Vicente Lim, Canlubang, Laguna for examination. Lorna Tria, a PNP chemist working at Camp
Vicente Lim, examined the marked packets, which had tested positive for shabu.48 These same
marked packets were identified in open court by Major Ablang, 49 Ricero50and Tria.51 Thus, the
unbroken chain of custody of the shabu, from their seizure from appellant until their presentation in
court, was clearly established.

Finally, the assertion that the buy-bust team had the habit of framing him up is similarly misleading.
The appellate court acquitted appellant of a previous charge of possession of shabu, because he was
charged with illegal sale rather than mere possession of shabu.52 Hence, there was no attempt to
frame him up in a prior case, nor was there any evidence that such an attempt to frame him up was
made in this case.

WHEREFORE, the appeal is DISMISSED, the decision dated March 30, 2007 of the Court of Appeals
in CA-G.R. CR-H.C. No. 00946 is AFFIRMED.

SO ORDERED.

DANTE O. TINGAAssociate Justice

46
47
 Republic of the Philippines
Supreme Court
Manila

SECOND DIVISION
G.R. No. 161083
PEOPLE OF THE PHILIPPINES,
represented by Chief State Prosecutor Present:
JOVENCITO ZUO, State Prosecutor
GERONIMO SY and Prosecution Attorney CARPIO, J., Chairperson,
IRWIN MARAYA, NACHURA,
Petitioners, PERALTA,
ABAD, and
48
 MENDOZA, JJ.
- versus -

HON. BASILIO R. GABO, in his capacity

as Presiding Judge of the Regional Trial
Court of Malolos, Bulacan, Branch II and
WILSON CUA TING, EDWARD NGO
YAO, WILLY SO TAN and CAROL Promulgated:
FERNAN ORTEGA,
Respondents. August 3, 2010
x-----------------------------------------------------------------------------------------x

DECISION

PERALTA, J.:

Before this Court is a petition for certiorari[1] under Rule 65 of the Rules of Court, seeking to set aside
the July 24, 2003 Decision[2] and October 3, 2003 Resolution[3] of the Court of Appeals (CA) in CA-G.R. SP No.
71985.
The facts of the case, as culled from the petition, are as follows:

On May 14, 2001, around 12:15 a.m., a fire broke out inside the plant of Sanyoware Plastic Products
Manufacturing Corporation (Sanyoware) located at Km. 8, McArthur Highway, Lolomboy, Bocaue, Bulacan.
The Sanyoware plant had four single-storey buildings, enclosed in concrete walls with steel tresses and
galvanized iron sheet roofing.

Sanyoware 2, Warehouse 2, the building that was razed by fire, was located at the right innermost
portion of the plant facing north. Sanyoware occupied the right, western portion of the said building, while New
Unitedware Marketing Corporation (Unitedware) rented the other half, located at the left, eastern portion. The
building was divided at the center by a tall concrete firewall with a steel gate.

Investigations were conducted by the Philippine 3rd Regional Criminal Investigation and Detention
Group (CIDG) and the Inter Agency Anti-Arson Task Force (IATF) of the Department of the Interior and Local
Government. Pursuant to the August 1, 2001 letter [4] of CIDG Regional Officer P/Supt. Christopher A. Laxa to
the Secretary of the Justice; the IATFs October 25, 2001 Indorsement; [5] and the October 8, 2001 letter[6] of
Bureau of Fire Protection (BFP) Chief Sr. Supt. Victoriano C. Remedio to the Prosecutor of the DOJ, the
following were accused of destructive arson before the Office of the Chief State Prosecutor, namely: Samson
Cua Ting, alias Ding Jian Zhi, External Vice-President; Wilson Cua Ting, Plant Manager; Edward Ngo Yao
(Yao), President of New Marketing Corporation; Willy So Tan, alias Chen Yi Ming, Vice-President for
Operations; Carol Fernan Ortega, Assistant to the External Vice-President; and John Doe and Peter Doe.

49
 In support of the accusation, petitioner submitted the Sworn Statements of Richard Madrideo, Jaime
Kalaw, Raymund Dy, Chit Chua, Jennifer Chua Reyes, Shanda Amistad, SPO1 Valeriano Dizon and Inspector
Allan N. Barredo.

In his sworn statement,[7] Richard Madrideo, a supervisor at Sanyoware said that there were two separate
sets of fire in the Sanyoware Warehouse and that it was different from, but occurred simultaneously, with the
fire at the Unitedware Warehouse. Madrideo claimed that respondents Wilson Ting and Yao instructed him that
if anyone should ask about the fire, he should say that the fires did not break out simultaneously and the cause
thereof was defective wiring. In his additional sworn statement, Madrideo claimed that, days after the fire, he
was threatened by respondents and was being forced to write a sworn statement against his will.

Jaime Kalaw, a former head of the Maintenance Department of Sanyoware, alleged in his sworn
statement[8] that the cause of the fire could not have been faulty electrical wiring, because the warehouse was
relatively new and that, on the day of the fire, the plant was not in operation so there was no heavy load of
electricity and all the circuit breakers were shut down. Kalaw noted that a week before the fire occurred, almost
300 unserviceable molds were transferred to the burned Sanyoware warehouse. A day before the fire, expensive
finish products were loaded in delivery trucks. In addition, Kalaw alleged that he saw respondent Yao a day
before the fire driving to the Unitedware warehouse. Once inside, respondent Yao took a rectangular shaped
object from his vehicle.

Raymond Dy, a warehouse supervisor at Sanyoware stated in his sworn statement [9] that a week before
the fire occurred, he observed that saleable products from the burned warehouse were transferred to the Sanyo
City Warehouse, while unusable components from the Sanyo City warehouse were transferred to the burned
warehouse. Dy alleged that the transfer of the products was upon the orders of Charles Lee, the plant manager
of Sanyoware, who allegedly told the employees to finish the transfers on May 12, 2001.

Chit Chua, an employee at the Accounting Department of Sanyoware, claimed in her sworn
statement[10] that Sanyoware was indebted to a number of banks and corporations and that Sanyowares
outstanding obligations amounted to P95,000,000.00 to P96,000,000.00. Jennifer Chua Reyes, a secretary at
Sanyoware, alleged in her sworn statement[11] that Sanyoware has an outstanding loan of P180,000,000.00 to
various individuals.

Shanda Amistad, a former stay-in worker at Sanyoware, alleged in her affidavit[12] that, around 8:00 a.m.
of May 13, 2001, she saw respondent Yao driving a Canter truck of Unitedware loaded with goods. Yao went to
Sanyoware three times that day.Amistad found it unusual, since Yao did not normally go to Sanyoware on
Sundays and there were available drivers at that time.Around 2:00 p.m. of the same day, respondent Wilson
Ting arrived.

SPO1 Valeriano Dizon (SPO1 Dizon), a fireman assigned at the Meycauayan Fire Station, Bulacan,
stated in his sworn statement[13] that he conducted the examination of the fire that occurred on May 14, 2001. He
alleged that he took the statement of the witnesses, but Sr. Supt. Enrique Linsangan of the BFP Regional Office,
50
Region III, took the witnesses statements from him before he could prepare the Final Investigation Report
(FIR). Thereafter, Sr. Supt. Linsangan summoned him, Inspector Allan Barredo and BFP C/Ins. Absalon
Zipagan, Municipal Fire Marshall of Bocaue, Bulacan, and showed them the copy of the FIR and made them
sign it. Inspector Barredo, in his affidavit, [14] corroborated SPO1 Dizons allegation as to how Sr. Supt.
Lansangan summoned and ordered them to sign the FIR.
In their defense, respondents submitted a Counter-Affidavit[15] to refute the allegations made against
them, the significant portions of which read:
7. Principally on the basis of the Salaysay of Richard Madrideo attached Annex A to the
Affidavit of Carol Ortega Fernan dated September 22, 2001, and on the basis of the Sinumpaang
Salaysay of Ricky A. Hista and of the Karagdagang Salaysay of Bobby Bacang and on the basis
of our inquiry from others, we have good reason to believe that one claiming to be a
representative of CRM Adjustment Corporation had indeed offered money and jobs to persons to
give perjured statements to make it appear that there was arson and that we committed it. (The
Affidavit of Carol Ortega Fernan, together with the Salaysay of Richard Madrideo as Annex A
thereto, the Sinumpaang Salaysay of Ricky A. Hista and the Karagdagang Salaysay of Bobby
Bacang were all submitted last September 22, 2001 to the Inter Agency Anti-Arson Task Force,
Office of the Secretary, Department of the Interior and Local Government.

8. We would like to stress the fact that during the supposed investigation of this arson
case by complainant 3rd Regional Criminal Investigation and Detection Group, not one of us was
invited by complainant to answer the allegations of witnesses against us. As far as we know,
complainant did not even make an ocular inspection of the place where fire occurred.

9. Although the CIDG investigators were allegedly informed by Mrs. June Go, a clerk of
Sanyoware, that nobody could assist the team in the ocular inspection, said investigators did not
proceed to conduct an ocular inspection when they actually did not need any assistance and when
nobody was preventing them from conducting the inspection.

10. Although Senior Police Officer Regino Raquipiso claims that when he and SPO1
John Tabago returned to the factory, the ocular inspection was not pushed through for alleged
lack of clearance from the company owners, there is no showing that said police officers insisted
or demanded to conduct then and there an ocular inspection.

11. Apparently, complainant solely relied on the statements of Jaime Kalaw, Raymond
Dy and Richard Madrideo in deciding to file the case at bar against us.

12. Richard Madrideo executed a Sinumpaang Salaysay before SPO4 Regino D.

Raquipiso, Jr. last June 29, 2001 wherein he claims, among others, that there was a simultaneous
fire that occurred in two places in Sanyoware warehouse and in a place in Unitedware.However,
said claim is a blatant lie and perjured statement.

13. In his Salaysay (Annex A to the Affidavit of Carol Ortega Fernan submitted last
September 22, 2001 to the Inter Agency Anti-Arson Task Force), Richard Madrideo admitted to
the fact that he received the sum of P1,000.00 from Atty. Lugtu and that he subsequently
received another sum of P15,000.00 from Atty. Lugtu. Richard Madrideo was also given a
cellphone and was promised a job. According to said Salaysay, Atty. Lugtu instructed Madrideo
to state, among others, in his Salaysay that Madrideo saw a simultaneous fire that occurred in
two sides of the plant of Sanyoware.
51
 14. In the Karagdagang Salaysay of Richard Madrideo, he repudiated his Salaysay by
claiming that he was threatened and coerced by Respondents into executing said Salaysay. Said
claim is a blatant lie. In essence, the story contained in the Karagdagang Salaysay regarding
alleged threats and coercion is nothing but a fabricated lie for the truth of the matter being that
his Salaysay was executed by him freely and voluntarily last July 30, 2001 at the conference
room of Sanyoware. He was not threatened by anyone. He was neither paid nor promised any
consideration for executing said Salaysay.

15. At any rate, I, Wilson Ting, and the security guards on duty can attest to the fact that
fire started at the warehouse of Unitedware and that it did not occur simultaneously in different
places.

16. In the Sworn Statement of Raymond Dy, he claims that Richard Madrideo had told
him that while the fire was on going at the Unitedware warehouse, Madrideo saw the fire on top
of the stock piles inside the Sanyoware warehouse aside from that fire at the
Unitedware. However, Jaime Kalaw, who was allegedly informed about the fire by Raymond Dy,
did not mention in his Sworn Statement about any simultaneous occurrence of the fire in
different places. Jaime Kalaw even further stated in his Sworn Statement that upon his inquiry
from the employees, he was allegedly told that the fire originated from Unitedware warehouse
that spread to Sanyoware warehouse.

17. The allegation of Jaime Kalaw in his Sworn Statement that all circuit breakers were
off position so that there was no flow of electric current that may cause fire on the warehouses
and the allegation of Raymond Dy that during his roving before the fire, all the lights were off
are not true for the truth being that management had required that some lights be put on every
night in all the warehouses so that they can be well guarded. Besides, I, Wilson Ting, and the
guards on duty can attest to the fact that there were lights in all the warehouses during the subject
incident.

18. Raymond Dy claims that the keys were usually kept by the guard on duty, but that on
this occasion, he learned from Shandra Amistad, a stay-in helper, that the keys were then kept by
Wilson Ting. Obviously, said claim is based on hearsay and thus, should not be given any
credence and besides, I, Wilson Ting, deny said claim for the truth of the matter being that the
keys of Sanyoware are kept inside its main office and are not kept by the guard on duty.

19. Raymond Dy also claims that the lights were 3 to 4 meters away from the stocks, so
that it could be impossible that stocks will be caught by fire if and when the lights or electrical
system leak down. However, said claim is not true for the fact of the matter is that in the
Unitedware warehouse and in Sanyoware warehouse, there were so much pile[s] of stocks that
some pile[s] almost reached the lights.

20. There is also no truth to the allegation of Raymond Dy that a week before the fire,
saleable finished products from Sanyoware and Unitedware were removed and transferred
to Sanyo City warehouse. There is also no truth to the allegation that non-useable components
were removed from Sanyo City and transferred a week before the fire to the warehouses that got
burned. Likewise, there is no truth that Charles Lee gave a deadline until Saturday (May 12) to
transfer non-useable components to the burned warehouses. Said allegations are all fabricated
lies designed to make it appear that there was arson.

52
 21. Long before the subject incident, I, Wilson Ting, had ordered to have the stock piles
that were in between the steel gate dividing Unitedware and Sanyoware warehouses moved, not
to have a pathway, but for the purpose of closing the said steel gate. After said stock piles were
moved, the steel gate was padlocked.

22. There was nothing extraordinary or irregular for several delivery trucks filled with
stocks to stay at the parking area for the night and to leave very early in the morning to avoid
traffic. Considering the huge volume of deliveries being made regularly by Sanyoware and
Unitedware, delivery trucks with finished products were often times parked in the evening and
during Sundays and holidays at the compound of Sanyoware and they usually moved out very
early in the morning from Monday to Saturday. Thus, there was nothing extraordinary or
irregular for some delivery trucks with stocks at the parking area on the night of May 13, 2001,
considering especially that it was a Sunday.

23. Being the operations manager of Sanyoware, I have no fixed time and schedule of
work. Even on a Sunday or holiday, I, Wilson Ting[,] sometimes visit the plant. Thus, there was
nothing unusual that I, Wilson Ting, went to Sanyoware last May 13, 2001. Due to several
incidents of thefts that took place inside the compound of Sanyoware and because of reports that
the delivery trucks at the parking lot might contain some items that were not included in the
inventory for delivery, I, Wilson Ting, as operations manager, decided to be at Sanyoware on that
Sunday (May 13, 2001) principally to check the goods inside the delivery trucks. With the help
of security guards Bobby Bacang and Ricky Hista, I, Wilson Ting, checked the goods in all the
delivery trucks.

24. Being the President and practically the owner of Unitedware, a marketing area of
Sanyoware and the lessee of Sanyowares warehouse, I, (Edward Yao), visit Sanyoware and
Unitedware from time to time.

25. As my (Edward Yaos) mother-in-law asked from me (Edward Yao) some chairs and
drawers, I (Edward Yao) drove my Pajero and went to Sanyoware. I (Edward Yao) called up
Wilson Ting and informed him that Ill be getting some chairs and drawers from Sanyoware for
my mother-in-law. From the plant of Sanyoware, I (Edward Yao) got some chairs and
drawers. When said chairs and drawers could not fit in my (Edward Yao) [P]ajero, I (Edward
Yao) left to get a van. I (Edward Yao) came back later driving a van where the said chairs and
drawers were placed. I (Edward Yao) brought said chairs and drawers to my mother-in-law who
selected and got only some items and so, I (Edward Yao) returned to Sanyoware the remaining
items. Before I (Edward Yao) left again, Wilson Ting asked me to come back for some chat and
so, I (Edward Yao) returned in my [P]ajero. However, after chatting with Wilson Ting, I (Edward
Yao) left at around 9:00 oclock in the evening of May 13, 2001. Thus, just before the incident
when the fire occurred, I (Edward Yao) was not in the compound of Sanyoware.

26. There is no truth, however, to the claim that I (Edward Yao) had entered the
warehouse of Unitedware and that I (Edward Yao) got a rectangular shape black object from my
vehicle while inside the warehouse for the truth of the matter being that I (Edward Yao) did not
enter said warehouse and I (Edward Yao) did not get any object from my vehicle. I (Edward Yao)
got the said chairs and drawers from the plant of Sanyoware.

27. There is no truth that the company is suffering losses even before the fire
occurred. The loan of Sanyoware with Metrobank is fully secured by a real estate mortgage
wherein the value of the real estate, together with the improvements thereon that was mortgaged
53
 is more or less double the amount of the said loan and, thus, said real estate value is more than
sufficient to cover said loan of Sanyoware. On the other hand, the loan with Equitable Bank is
also fully secured by a real estate mortgage.

28. Before the subject incident, Sanyoware was making profits. There was no year that
Sanyoware incurred losses. Its business was going every year. Prior to the subject incident, the
record of Sanyoware with the banks was quite good.

29. Likewise, prior to the fire, Unitedware was steadily growing. Every year, its profit
continued to go up. Last year, Unitedware made a huge profit from its operation and it is
expected that, despite the fire that burned the warehouses, Unitedware will still make a good
profit this year.

30. Complainant did not conduct any investigation, except to get the statements of its
witnesses: Madrideo, Kalaw and Dy.Likewise, the Inter Agency Anti-Arson Task Force did not
also conduct any investigation, except in essence to ask the witnesses of complainant to identify
under oath their sworn statements executed before the complainant and to ask respondents to
submit their sworn statements and later to identify the same under oath.

31. On the other hand, the elements of Bocaue Fire Station and OPFM Bulacan BFP
Region 3 Intel and Inves Section conducted a thorough investigation of the origin of the
fire. Statements of security guards Bobby A. Bacang and Mark Anthony Gabay were
taken.Statement of the operations manager Wilson Ting was also taken. The subject place was
inspected. Pictures were taken. Specimens were obtained from the place where fire occurred and
submitted to the laboratory for examination. Said elements undertook other activities in line with
proper investigation.[16]

After preliminary investigation, then State Prosecutor Carlos C. Pormento issued a Resolution, [17] the
dispositive portion of which reads:

WHEREFORE, premises considered, it is respectfully recommended that an information

for Destructive Arson be filed against Wilson Ting, Edward Yao, Willy So Tan and Carol Ortega.
That the case against Samson Ting be dismissed for lack of sufficient evidence to indict him
under the charge.

As to the charge of Accessories against herein three (3) Fire Officers, let that case be
remanded to TF-IATF for further investigation.[18]

Pursuant to the foregoing Resolution, an Information [19] for Arson was filed against Wilson Cua Ting,
Edward Ngo Yao, Willy So Tan, Carol F. Ortega, John Doe and Peter Doe, of the crime of arson, to wit:

That on or about May 14, 2001, in the Municipality of Bocaue, Province of Bulacan, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating and mutually helping one another, acting in common accord, did then and there,
willfully, unlawfully, and feloniously, destroy the warehouses known as Sanyoware Plastic
Products Manufacturing Plant and New Unitedware Marketing Corporation, including the stocks
of raw materials and finish products, machineries and various equipments by maliciously

54
 burning the same for the purpose of concealing or destroying evidence of another violation of
law, and to conceal bankruptcy to defraud creditors and to collect from insurance.

CONTRARY TO LAW.[20]
The Information was raffled to Branch XI, Regional Trial Court (RTC) of Malolos Bulacan, 3 rd Judicial
Region. The case was docketed as Criminal Case No. 300-47M 2002.

Prior to the arraignment of respondents and before warrants of arrest could be issued, respondents filed a
Motion to Conduct Hearing to Determine Probable Cause and to Hold in Abeyance the Issuance of Warrant of
Arrest Pending Determination of Probable Cause.[21]

On February 27, 2002, the RTC issued an Order[22] dismissing the case, the dispositive portion of which
reads:

Accordingly, for lack of probable cause, the instant case is DISMISSED as ordained
under Sec. 6, Rule 112 of the Revised Rules of Criminal Procedure.

SO ORDERED.[23]

The RTC applied the equipoise rule in dismissing the case, because of its observation that the sworn
statements submitted by petitioner and respondents contained contradictory positions.

Aggrieved, petitioner filed a Motion for Reconsideration,[24] which was, however, denied by the RTC in an
Order[25] dated March 25, 2002.

On August 8, 2002, petitioner filed a petition for certiorari before the CA docketed as CA-G.R. SP No.
71985. On July 24, 2003, the CA issued a Decision denying the petition, the dispositive portion of which reads:

WHEREFORE, premises considered, there being no grave abuse of discretion committed

by the public respondent, the assailed Orders dated February 27, 2002 and March 25, 2002 are
hereby AFFIRMED in toto and the present petition is hereby DENIED DUE COURSE and is,
accordingly, DISMISSED for lack of merit.

SO ORDERED.[26]

Petitioner then filed a Motion for Reconsideration, which was, however, denied by the CA in a
Resolution[27] dated October 3, 2003.

Hence, this instant petition, with petitioner raising the following ground for this Courts consideration, to
wit:

THE COURT OF APPEALS PATENTLY AND GROSSLY ABUSED ITS DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ADOPTING THE
EQUIPOISE RULE IN THE CASE AT BAR.[28]
55
Before anything else, this Court shall address a procedural issue raised by respondents that certiorari does not
lie considering that such special civil action is not and cannot be a substitute for an appeal, or more importantly,
a lapsed appeal.[29]

Respondents position is well taken.

It is well settled that a special civil action for certiorari under Rule 65 of the Rules of Court lies only
when, there is no appeal nor plain, speedy and adequate remedy in the ordinary course of law,
and certiorari cannot be allowed when a party to a case fails to appeal a judgment despite the availability of that
remedy, certiorari not being a substitute for a lost appeal.[30]

A perusal of the records will show that petitioner received the assailed CA Resolution on October 10, 2003.
From that time on, petitioner had 15 days, or until October 25, 2003, to file an appeal by way of a petition for
review under Rule 45 of the Rules of Court. However, instead of filing the appeal on the last day of
reglementary period, petitioner simply allowed it to lapse. Clearly, petitioner had an appeal, which under the
circumstances was the adequate remedy in the ordinary course of law. On this point alone, petitioners petition
must be dismissed, as herein petition is without a doubt a substitute for a lost appeal. In any case, even if this
Court were to set aside the procedural infirmity of the petition, the same still fails on the merits.

In a petition for certiorari, the court must confine itself to the issue of whether or not respondent court lacked or
exceeded its jurisdiction or committed grave abuse of discretion.[31]

It is well to remember that there is a distinction between the preliminary inquiry, which determines
probable cause for the issuance of a warrant of arrest, and the preliminary investigation proper, which ascertains
whether the offender should be held for trial or be released. The determination of probable cause for purposes of
issuing a warrant of arrest is made by the judge. The preliminary investigation proper whether or not there is
reasonable ground to believe that the accused is guilty of the offense charged is the function of the investigating
prosecutor.[32]

Section 6, Rule 112 of the Revised Rules of Court provides:

SEC 6. When warrant of arrest may issue.

xxxx

(a) By the Regional Trial Court. Within (10) days from the filing of the complaint or
information, the judge shall personally evaluate the resolution of the prosecutor and its
supporting evidence. He may immediately dismiss the case if the evidence on record clearly
fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest,
or a commitment order of the accused had already been arrested, pursuant to a warrant issued by
56
 the judge who conducted preliminary investigation or when the complaint or information was
filed pursuant to Section 7 of this Rule. In case of doubt on the existence of probable cause, the
judge may order the prosecutor to present additional evidence within five (5) days from notice
and the issue must be resolved by the court within thirty (30) days from the filing of the
complaint or information.[33]

As enunciated in Baltazar v. People,[34] the task of the presiding judge when the Information is filed with
the court is first and foremost to determine the existence or non-existence of probable cause for the arrest of the
accused. Probable cause is such set of facts and circumstances as would lead a reasonably discreet and prudent
man to believe that the offense charged in the Information, or any offense included therein, has been committed
by the person sought to be arrested. In determining probable cause, the average man weighs the facts and
circumstances without resorting to the calibrations of the rules of evidence of which he has no technical
knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing
that, more likely than not, a crime has been committed and that it was committed by the accused. Probable
cause demands more than suspicion; it requires less than evidence that would justify conviction. [35] The purpose
of the mandate of the judge to first determine probable cause for the arrest of the accused is to insulate from the
very start those falsely charged with crimes from the tribulations, expenses and anxiety of a public trial.[36]

Based on the foregoing, the RTC acted within its jurisdiction when it dismissed the case on lack of
probable cause as the same is sanctioned under Section 6, Rule 112 of the Rules of Court. The penultimate
question to be resolved then is was such exercise of jurisdiction attended by grave abuse of discretion?

Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to
lack of jurisdiction, or in other words where the power is exercised in an arbitrary or despotic manner by reason
of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or
to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.[37]

Petitioners main argument hinges on the propriety of the RTCs use of the equipoise rule in dismissing the
case which was affirmed by the CA. Specifically, petitioner contends that the equipoise rule cannot be used by
the RTC merely after the filing of the information, thus:

Since there must be a proper determination of the presence or absence of evidence

sufficient to support a conviction, i.e., proof beyond reasonable doubt, the equipoise rule shall
properly come into play when the parties have already concluded the presentation of their
respective evidence. It is only at this stage, not at any prior time and certainly not merely after
the filing of the information, can the trial court assess and weigh the evidence of the parties and
thereafter determine which party has the preponderance of evidence. If both parties fail to adduce
evidence in support of their respective cases, an adverse decision would be rendered against the
party which has the burden of proof.[38]

Under the equipoise rule, where the evidence on an issue of fact is in equipoise, or there is doubt on which side
the evidence preponderates, the party having the burden of proof loses. The equipoise rule finds application if
57
the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with
the innocence of the accused and the other consistent with his guilt, for then the evidence does not suffice to
produce a conviction.[39]
To this Courts mind, the reliance of the RTC in the equipoise rule is misplaced as a review of previous Court
decisions would show that the position of petitioner is in fact correct. The equipoise rule has been generally
applied when the parties have already concluded the presentation of their respective evidence as shown in a
plethora of cases such as Abarquez v. People,[40] Tin v. People[41] and People v. Leano.[42]

While the use of the equipoise rule was not proper under the circumstances of the case at bar, the same,
however, does not equate to an abuse of discretion on the part of the RTC, but at most, merely an error of
judgment. More importantly, this Court finds that the RTC had in fact complied with the requirement under the
rules of personally evaluating the resolution of the prosecutor and its supporting evidence and that the assailed
Order was arrived at after due consideration of the merits thereto, thus:

By this statement of Madrideo, it would appear fire broke out in two (2) places, which,
presupposes or implies that some sort of incendiary or flammable substances were ignited to start
the fire. The investigation conducted by the Bocaue Fire Station, however, appears to have ruled
out the use of incendiary or inflammable substances. Annex E of the Complaint, Chemistry
Report No. C-054-2001 of the Bulacan Provincial Crime Laboratory Office indicated that the
specimen submitted by the Bocaue Fire Station in connection with the fire in question was found
negative of any flammable substance. This finding was never debunked or repudiated, which
makes the misgivings of the police investigators about its veracity unfounded. Thus, pitted
against the allegation of Madrideo, this physical evidence puts the truth of the latter in grave
doubt. Physical evidence is evidence of the highest order. It speaks more eloquently than a
hundred witnesses (People vs. Sacabin, 57 SCRA 707). Physical evidence are mute but eloquent
manifestations of truth and they rate high in our hierarchy of trustworthy evidence (People vs.
Uycoque, 124 SCRA 769).

At this stage, it must be stressed that the Fire Investigation Report prepared by the
Bocaue Fire Station (Annex D) and the Certification made by the Provincial Fire Marshall,
Absalon Zipagan, point to the faulty wiring as the cause or origin (sic) of the conflagration at bar.
The Office the Regional Fire Marshall also came out with the same findings. (Annexes B and C)
All the above reports and investigation stand as the official report of the fire in question.
Contrary to the Resolution, we find nothing in the respective sworn statements of Supt. Absalon
Zipagan, Sr. Supt. Enrique Linsangan and Insp. Allan Barredo that deviated much less repudiated
the aforesaid reports and findings. Far from impugning their own investigation, the three (3) fire
officials simply narrated the steps that were taken at the provincial and regional levels in the
investigation of the Sanyo fire. Needless to state, the investigation reports and findings carry the
presumption that official duty has been regularly performed. A mere affidavit cannot overcome
this presumption. (Transport Corporation vs. CA, 241 SCRA 77) Government officials are
presumed to perform their functions with regularity and strong evidence is necessary to rebut this
presumption. (Tata vs. Garcia, Jr., 243 SCRA 235)

The significance of the above reports and findings cannot be overlooked. Note that
F/CINSP. Absalon Zipagan, F/Insp. Allan Barredo and SPO1 Valeriano Dizon, Jr. were included
as accessories in the complaint by the DILG, Inter Agency Anti-Arson Task Force but the State

58
 Prosecutor did not rule on their liability, which thus enhances all the more the probative value of
the said reports and findings.

This Court, likewise, noted that although the Inter Agency Anti Arson Task Force was
quick to rule out faulty electrical wiring, it did note arrive at a definite theory how the fire
started, leaving everything hanging in mid-air.

This Court is also hard put to make out a case from the actuations of some of the accused
before, during and after the fire. For one, the presence of Wilson Ting and Edward Yao in the
Sanyo premises before the fire is not criminal per se. Both apparently have their own
explanations, and following the equipoise rule as elucidated above, no adverse implications can
be inferred therefrom. So are with the alleged utterances made by the accused during and after
the fire, having been said in the midst of tenseful happening these can be attributed to their
desperation over the loss of some of their properties. And, consistent with the equipoise rule, if
ever said statements were uttered at all, they cannot serve as evidence against the accused for the
offense charged.[43]

The conclusions of the RTC which led to the dismissal of the information against respondents cannot, in
any sense, be characterized as outrageously wrong or manifestly mistaken, or whimsically or capriciously
arrived at. The worst that may perhaps be said of it is that it is fairly debatable, and may even be possibly
erroneous. But they cannot be declared to have been made with grave abuse of discretion.[44]

Based on Section 6, Rule 112 of the Rules of Court, the RTC judge, upon the filing of an Information,
has the following options: (1) dismiss the case if the evidence on record clearly failed to establish probable
cause; (2) if he or she finds probable cause, issue a warrant of arrest; and (3) in case of doubt as to the existence
of probable cause, order the prosecutor to present additional evidence within five days from notice, the issue to
be resolved by the court within thirty days from the filing of the information.[45]
The judge is required to personally evaluate the resolution of the prosecutor and its supporting
evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable
cause.[46] To this Courts mind, the RTC had complied with its duty of personally evaluating the supporting
evidence of the prosecution before arriving at its decision of dismissing the case against respondents.

While petitioner mainly argues against the use of the equipoise rule, it cannot escape this Courts
attention that ultimately petitioner is asking this Court to resolve the propriety of the dismissal of the case by the
RTC, on the basis of the Information and the attached documents it had filed. This Court however, will defer to
the findings of fact of the RTC, which are accorded great weight and respect, more so because the same were
affirmed by the CA. In addition, it bears to stress that the instant case is a petition for certiorari where questions
of fact are not entertained.[47]

The sole office of writ of certiorari is the correction of errors of jurisdiction, including the commission
of grave abuse of discretion amounting to lack of jurisdiction and does not include correction of public
respondents evaluation of the evidence and factual findings based thereon. [48] An error of judgment that the
court may commit in the exercise of its jurisdiction is not correctible through the original special civil action
of certiorari.[49]
59
 In any case, the dismissal of herein petition does not preclude petitioner from availing of any other
action it deems appropriate under the premises. Double jeopardy cannot be invoked where the accused has not
been arraigned and it was upon his express motion that the case was dismissed. [50] Moreover, while the absence
of probable cause for the issuance of a warrant of arrest is a ground for the dismissal of the case, the same does
not result in the acquittal of the said accused.[51]

WHEREFORE, premises considered, the petition is DISMISSED. The July 24, 2003 Decision and
October 3, 2003 Resolution of the Court of Appeals, in CA-G.R. SP No. 71985, are AFFIRMED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 95847-48. March 10, 1993.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GABRIEL GERENTE y BULLO, accused-

appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT; LAWFUL WHEN

ARRESTING OFFICER HAS PERSONAL KNOWLEDGE THAT THE PERSON TO BE ARRESTED
HAS COMMITTED THE CRIME; CASE AT BAR. The policemen arrested Gerente only some three
(3) hours after Gerente and his companions had killed Blace. They saw Blace dead in the hospital
and when they inspected the scene of the crime, they found the instruments of death: a piece of wood
and a concrete hollow block which the killers had used to bludgeon him to death. The eye-witness,
Edna Edwina Reyes, reported the happening to the policemen and pinpointed her neighbor, Gerente,
60
as one of the killers. Under those circumstances, since the policemen had personal knowledge of the
violent death of Blace and of facts indicating that Gerente and two others had killed him, they could
lawfully arrest Gerente without a warrant. If they had postponed his arrest until they could obtain a
warrant, he would have fled the law as his two companions did.

2. ID.; ID.; SEARCH AND SEIZURE; VALID EVEN WITHOUT A WARRANT WHEN MADE AS AN
INCIDENT TO LAWFUL ARREST; RATIONALE. The search conducted on Gerente's person was
likewise lawful because it was made as an incident to a valid arrest. This is in accordance with
Section 12, Rule 126 of the Revised Rules of Court which provides: "Section 12. Search incident to
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." The frisk and
search of appellant's person upon his arrest was a permissible precautionary measure of arresting
officers to protect themselves, for the person who is about to be arrested may be armed and might
attack them unless he is first disarmed. In Adams vs. Williams, 47 U.S. 143, cited in Justice Isagani A.
Cruz's Constitutional Law, 1991 Edition, p. 150, it was ruled that "the individual being arrested may be
frisked for concealed weapons that may be used against the arresting officer and all unlawful articles
found his person, or within his immediate control may be seized."

3. CRIMINAL LAW; CONSPIRACY; LIABILITY OF CONSPIRATORS; RULE; CASE AT BAR. There

is no merit in appellant's allegation that the trial court erred in convicting him of having conspired and
cooperated with Fredo and Totoy Echigoren to kill Blace despite the testimony of Dr. Valentin
Bernales that the fracture on the back of the victim's skull could have been inflicted by one person
only. what Dr. Bernales stated was a mere possibility that only one person dropped the concrete
hollow block on the head of the victim, smashing it. That circumstance, even if true, does not absolve
the other two co-conspirators in the murder of Blace for when there is a conspiracy to commit a crime,
the act of one conspirator is the act of all. The conspiracy was proven by the eyewitness-testimony of
Edna Edwina Reyes, that she overheard the appellant and his companions conspire to kill Blace, that
acting in concert, they attacked their victim with a piece of wood and a hollow block and caused his
death. "When there is no evidence indicating that the principal witness for the prosecution was moved
by improper motive, the presumption is that he was not so moved and his testimony is entitled to full
faith and credit" (People vs. Belibet, 199 SCRA 587, 588). Hence, the trial court did not err in giving
full credit to Edna Reyes' testimony.

4. ID.; CIVIL INDEMNITY FOR DEATH; INCREASED TO P50,000.00. The Solicitor General
correctly pointed out in the appellee's brief that the award of P30,000.00 as civil indemnity for the
death of Clarito Blace should be increased to P50,000.00 in accordance with our ruling in People vs.
Sison, 189 SCRA 643.

DECISION

GRIO-AQUINO, J p:

This is an appeal from the decision of the Regional Trial Court of Valenzuela, Metro Manila, Branch
172, which found the appellant guilty of Violation of Section 8 of Republic Act 6425 (Dangerous Drugs
Act of 1972) and sentenced him to suffer the penalty of imprisonment for a term of twelve (12) years
and one (1) day, as minimum, to twenty (20) years, as maximum; and also found him guilty of Murder
for which crime he was sentenced to suffer the penalty of reclusion perpetua. The dispositive portion
of the appealed decision reads:

61
"WHEREFORE, in view of the foregoing the Court finds the accused Gabriel Gerente in Criminal
Case No. 10255-V-90 guilty beyond reasonable doubt of Violation of Section 8 of R.A. 6425 and
hereby sentences him to suffer the penalty of imprisonment of twelve years and one day as minimum
to twenty years as maximum, and a fine of twelve thousand, without subsidiary imprisonment in case
of insolvency, and to pay the costs.

"In Criminal Case No. 10256-V-90, the Court finds the accused Gabriel Gerente guilty beyond
reasonable doubt of the crime of Murder, and there by (sic) no aggravating circumstances nor
mitigating circumstances, is hereby sentenced to suffer the penalty of reclusion perpetua; to
indemnify the heirs of the victim in the sum of P30,000.00, and in the amount of P17,609.00 as
funeral expenses, without subsidiary imprisonment in case of insolvency, and to pay the costs. The
accused Gabriel Gerente shall be credited with the full term of his preventive imprisonment." (p. 25,
Rollo.)

Appellant Gabriel Gerente y Bullo was charged with Violation of Section 8, Art. II of R.A. 6425, which
was docketed as Criminal Case No. 10255-V-90 of the Regional Trial Court of Valenzuela, Metro
Manila. The Information reads:

"That on or about the 30th day of April, 1990, in the municipality of Valenzuela, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without
justification, did then and there wilfully, unlawfully and feloniously have in his possession and control
dried flowering tops wrapped in foil with markings and place in a transparent plastic bag which are
considered prohibited drugs." (p. 2, Rollo.)

The same accused, together with Totoy and Fredo Echigoren who are both at large, was charged with
Murder in Criminal Case No. 10256-V-90 in an information of the same date and signed by the same
Assistant Provincial Prosecutor, as follows:

"That on or about the 30th day of April, 1990, in the municipality of Valenzuela, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused together
with two (2) others who are still at large and against whom the preliminary investigation has not yet
been terminated by the Office of the Provincial Prosecutor of Bulacan, conspiring, confederating
together and mutually helping one another, armed with a piece of wood and hallow (sic) block and
with intent to kill one Clarito B. Blace, did then and there wilfully, unlawfully and feloniously, with
evident premeditation and treachery, attack, assault and hit with the said piece of wood and hollow
block the said Clarito B. Blace, hitting the latter on the different parts of his body, thereby inflicting
serious physical injuries which directly caused the death of the said victim." (p. 3, Rollo.)

Edna Edwina Reyes testified that at about 7:00 a.m. of April 30, 1990, appellant Gabriel Gerente,
together with Fredo Echigoren and Totoy Echigoren, started drinking liquor and smoking marijuana in
the house of the appellant which is about six (6) meters away from the house of the prosecution
witness who was in her house on that day. She overheard the three men talking about their intention
to kill Clarito Blace. She testified that she heard Fredo Echigoren saying, "Gabriel, papatayin natin si
Clarito Blace," and Totoy Echigoren allegedly seconded Fredo's suggestion saying: "Papatayin natin
'yan mamaya." Appellant allegedly agreed: "Sigue, papatayin natin mamaya." (pp. 3-4, tsn, August
24, 1990.)

Fredo and Totoy Echigoren and Gerente carried out their plan to kill Clarito Blace at about 2:00 p.m.
of the same day. The prosecution witness, Edna Edwina Reyes, testified that she witnessed the
killing. Fredo Echigoren struck the first blow against Clarito Blace, followed by Totoy Echigoren and
62
Gabriel Gerente who hit him twice with a piece of wood in the head and when he fell, Totoy Echigoren
dropped a hollow block on the victim's head. Thereafter, the three men dragged Blace to a place
behind the house of Gerente.

At about 4:00 p.m. of the same day, Patrolman Jaime Urrutia of the Valenzuela Police Station
received a report from the Palo Police Detachment about a mauling incident. He went to the
Valenzuela District Hospital where the victim was brought. He was informed by the hospital officials
that the victim died on arrival. The cause of death was massive fracture of the skull caused by a hard
and heavy object. Right away, Patrolman Urrutia, together with Police Corporal Romeo Lima and
Patrolman Alex Umali, proceeded to Paseo de Blas where the mauling incident took place. There
they found a piece of wood with blood stains, a hollow block and two roaches of marijuana. They
were informed by the prosecution witness, Edna Edwina Reyes, that she saw the killing and she
pointed to Gabriel Gerente as one of the three men who killed Clarito.

The policemen proceeded to the house of the appellant who was then sleeping. They told him to
come out of the house and they introduced themselves as policemen. Patrolman Urrutia frisked
appellant and found a coin purse in his pocket which contained dried leaves wrapped in cigarette foil.
The dried leaves were sent to the National Bureau of Investigation for examination. The Forensic
Chemist found them to be marijuana.

Only the appellant, Gabriel Gerente, was apprehended by the police. The other suspects, Fredo and
Totoy Echigoren, are still at large.

On May 2, 1990, two separate informations were filed by Assistant Provincial Prosecutor Benjamin
Caraig against him for Violation of Section 8, Art. II, of R.A. 6425, and for Murder.

When arraigned on May 16, 1990, the appellant pleaded not guilty to both charges. A joint trial of the
two cases was held. On September 24, 1990, the trial court rendered a decision convicting him of
Violation of Section 8 of R.A. 6425 and of Murder.

In this appeal of the appellant, the following errors are ascribed to the trial court:

1. the court a quo gravely erred in admitting the marijuana leaves adduced in evidence by the
prosecution; and

2. the court a quo gravely erred in convicting the accused-appellant of the crimes charged despite the
absence of evidence required to prove his guilt beyond reasonable doubt.

The appellant contends that the trial court erred in admitting the marijuana leaves as evidence in
violation of his constitutional right not to be subjected to illegal search and seizure, for the dried
marijuana leaves were seized from him in the course of a warrantless arrest by the police officers. We
do not agree.

The search of appellant's person and the seizure of the marijuana leaves in his possession were valid
because they were incident to a lawful warrantless arrest.

Paragraphs (a) and (b), Section 5, Rule 113 of the Revised Rules of Court provide:

'SECTION 5. Arrest without warrant; when lawful. A peace officer or a private person may, without
a warrant, arrest a person:
63
"(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; . . .'

The policemen arrested Gerente only some three (3) hours after Gerente and his companions had
killed Blace. They saw Blace dead in the hospital and when they inspected the scene of the crime,
they found the instruments of death: a piece of wood and a concrete hollow block which the killers
had used to bludgeon him to death. The eye-witness, Edna Edwina Reyes, reported the happening to
the policemen and pinpointed her neighbor, Gerente, as one of the killers. Under those
circumstances, since the policemen had personal knowledge of the violent death of Blace and of facts
indicating that Gerente and two others had killed him, they could lawfully arrest Gerente without a
warrant. If they had postponed his arrest until they could obtain a warrant, he would have fled the law
as his two companions did.

In Umil vs. Ramos, 187 SCRA 311, the arrest of the accused without a warrant was effected one (1)
day after he had shot to death two Capcom soldiers. The arrest was held lawful by this Court upon
the rationale stated by us in People vs. Malasugui, 63 Phil. 221, 228, thus:

"To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of
his crime without a warrant, would be to leave society, to a large extent, at the mercy of the
shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many
instances."

The search conducted on Gerente's person was likewise lawful because it was made as an incident
to a valid arrest. This is in accordance with Section 12, Rule 126 of the Revised Rules of Court which
provides:

"SECTION 12. Search incident to 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."

The frisk and search of appellant's person upon his arrest was a permissible precautionary measure
of arresting officers to protect themselves, for the person who is about to be arrested may be armed
and might attack them unless he is first disarmed. In Adams vs. Williams, 47 U.S. 143, cited in Justice
Isagani A. Cruz's Constitutional Law, 1991 Edition, p. 150, it was ruled that "the individual being
arrested may be frisked for concealed weapons that may be used against the arresting officer and all
unlawful articles found in his person, or within his immediate control may be seized."

There is no merit in appellant's allegation that the trial court erred in convicting him of having
conspired and cooperated with Fredo and Totoy Echigoren to kill Blace despite the testimony of Dr.
Valentin Bernales that the fracture on the back of the victim's skull could have been inflicted by one
person only.

What Dr. Bernales stated was a mere possibility that only one person dropped the concrete hollow
block on the head of the victim, smashing it. That circumstance, even if true, does not absolve the
other two co-conspirators in the murder of Blace for when there is a conspiracy to commit a crime, the
act of one conspirator is the act of all. The conspiracy was proven by the eyewitness-testimony of
Edna Edwina Reyes, that she overheard the appellant and his companions conspire to kill Blace, that
64
acting in concert, they attacked their victim with a piece of wood and a hollow block and caused his
death. "When there is no evidence indicating that the principal witness for the prosecution was moved
by improper motive, the presumption is that he was not so moved and his testimony is entitled to full
faith and credit" (People vs. Belibet, 199 SCRA 587, 588). Hence, the trial court did not err in giving
full credit to Edna Reyes' testimony.

Appellant's failure to escape (because he was very drunk) is no indicium of his innocence.

The Solicitor General correctly pointed out in the appellee's brief that the award of P30,000.00 as civil
indemnity for the death of Clarito Blace should be increased to P50,000.00 in accordance with our
ruling in People vs. Sison, 189 SCRA 643.

WHEREFORE, the appealed decision is hereby AFFIRMED, with modification of the civil indemnity
awarded to the heirs of the victim, Clarito Blace, which is hereby increased to P50,000.00.

SO ORDERED.

Cruz, Bellosillo and Quiason, JJ ., concur.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 128587 March 16, 2007

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
HON. PERFECTO A.S. LAGUIO, JR., in his capacity as Presiding Judge, Branch 18, RTC,
Manila, and LAWRENCE WANG Y CHEN, Respondents.

DECISION

GARCIA, J.:

On pure questions of law, petitioner People of the Philippines has directly come to this Court via this
petition for review on certiorari to nullify and set aside the Resolution 1 dated 13 March 1997 of the
Regional Trial Court of Manila, Branch 18, in Criminal Case Nos. 96-149990 to 96-149992, entitled
65
People of the Philippines v. Lawrence Wang y Chen, granting private respondent Lawrence C.
Wangs Demurrer to Evidence and acquitting him of the three (3) charges filed against him, namely:
(1) Criminal Case No. 96-149990 for Violation of Section 16, Article III in relation to Section 2(e)(2),
Article I of Republic Act (R.A.) No. 6425 (Dangerous Drugs Act); (2) Criminal Case No. 96-149991 for
Violation of Presidential Decree No. 1866 (Illegal Possession of Firearms); and (3) Criminal Case No.
96-149992 for Violation of Comelec Resolution No. 2828 in relation to R.A. No. 7166 (COMELEC
Gun Ban).

The three (3) separate Informations filed against Lawrence C. Wang in the court of origin respectively
read:

Criminal Case No. 96-149990 (Violation of Dangerous Drugs Act):

That on or about the 17th day of May 1996, in the City of Manila, Philippines, the said accused did
then and there willfully, unlawfully and knowingly have in his possession and under his custody and
control a bulk of white and yellowish crystalline substance known as SHABU contained in thirty-two
(32) transparent plastic bags weighing approximately 29.2941 kilograms, containing
methamphetamine hydrochloride, a regulated drug, without the corresponding license or prescription
therefor.

Contrary to law.2

Criminal Case No. 96-149991 (Illegal Possession of Firearms):

That on or about the 17th day of May 1996, in the City of Manila, Philippines, the said accused did
then and there willfully, unlawfully and knowingly have in his possession and under his custody and
control one (1) DAEWOO Cal. 9mm, automatic pistol with one loaded magazine and one AMT Cal. .
380 9mm automatic backup pistol with magazine loaded with ammunitions without first having
secured the necessary license or permit therefor from the proper authorities.

Contrary to law. 3

Criminal Case No. 96-149992 (Violation of Comelec Gun Ban):

That on or about the 17th day of May 1996, in the City of Manila, Philippines, the said accused did
then and there willfully, unlawfully and knowingly have in his possession and under his custody and
control one (1) DAEWOO Cal. 9mm automatic pistol with one loaded magazine and one (1) AMT Cal.
380 9mm automatic backup pistol with magazine loaded with ammunitions, carrying the same along
Maria Orosa St., Ermita, Manila, which is a public place, on the date which is covered by an election
period, without first securing the written permission or authority from the Commission on Elections, as
provided by the COMELEC Resolution 2828 in relation to Republic Act 7166.

Contrary to law. 4

During his arraignment, accused Wang refused to enter a plea to all the Informations and instead
interposed a continuing objection to the admissibility of the evidence obtained by the police
operatives. Thus, the trial court ordered that a plea of "Not Guilty" be entered for him. 5 Thereafter,
joint trial of the three (3) consolidated cases followed.

The pertinent facts are as follows:

66
On 16 May 1996, at about 7:00 p.m., police operatives of the Public Assistance and Reaction Against
Crime of the Department of Interior and Local Government, namely, Captain Margallo, Police
Inspector Cielito Coronel and SPO3 Reynaldo Cristobal, arrested SPO2 Vergel de Dios, Rogelio
Anoble and a certain Arellano, for unlawful possession of methamphetamine hydrochloride, a
regulated drug popularly known as shabu. In the course of the investigation of the three arrested
persons, Redentor Teck, alias Frank, and Joseph Junio were identified as the source of the drug. An
entrapment operation was then set after the three were prevailed upon to call their source and
pretend to order another supply of shabu.

At around 11:00 p.m. that same date, Redentor Teck and Joseph Junio were arrested while they were
about to hand over another bag of shabu to SPO2 De Dios and company. Questioned, Redentor Teck
and Joseph Junio informed the police operatives that they were working as talent manager and
gymnast instructor, respectively, of Glamour Modeling Agency owned by Lawrence Wang. Redentor
Teck and Joseph Junio did not disclose their source of shabu but admitted that they were working for
Wang.6 They also disclosed that they knew of a scheduled delivery of shabu early the following
morning of 17 May 1996, and that their employer (Wang) could be found at the Maria Orosa
Apartment in Malate, Manila. The police operatives decided to look for Wang to shed light on the
illegal drug activities of Redentor Teck and Joseph Junio. Police Inspector Cielito Coronel and his
men then proceeded to Maria Orosa Apartment and placed the same under surveillance.

Prosecution witness Police Inspector Cielito Coronel testified that at about 2:10 a.m. of 17 May 1996,
Wang, who was described to the operatives by Teck, came out of the apartment and walked towards
a parked BMW car. On nearing the car, he (witness) together with Captain Margallo and two other
police officers approached Wang, introduced themselves to him as police officers, asked his name
and, upon hearing that he was Lawrence Wang, immediately frisked him and asked him to open the
back compartment of the BMW car.7 When frisked, there was found inside the front right pocket of
Wang and confiscated from him an unlicensed AMT Cal. 380 9mm automatic Back-up Pistol loaded
with ammunitions. At the same time, the other members of the operatives searched the BMW car and
found inside it were the following items: (a) 32 transparent plastic bags containing white crystalline
substance with a total weight of 29.2941 kilograms, which substance was later analyzed as positive
for methamphetamine hydrochloride, a regulated drug locally known as shabu; (b) cash in the amount
of P650,000.00; (c) one electronic and one mechanical scales; and (d) an unlicensed Daewoo 9mm
Pistol with magazine. Then and there, Wang resisted the warrantless arrest and search. 8

On 6 December 1996, the prosecution rested its case and upon motion, accused Wang was granted
25 days from said date within which to file his intended Demurrer to Evidence. 9 On 19 December
1996, the prosecution filed a Manifestation 10 to the effect that it had rested its case only in so far as
the charge for Violation of the Dangerous Drugs Act in Criminal Case No. 96-149990 is concerned,
and not as regards the two cases for Illegal Possession of Firearms (Crim. Case No. 96-149991) and
Violation of the Comelec Gun Ban (Crim. Case No. 96-149992). Accordingly, trial continued.

On 9 January 1997, Wang filed his undated Demurrer to Evidence, 11 praying for his acquittal and the
dismissal of the three (3) cases against him for lack of a valid arrest and search warrants and the
inadmissibility of the prosecutions evidence against him. Considering that the prosecution has not yet
filed its Opposition to the demurrer, Wang filed an Amplification 12 to his Demurrer of Evidence on 20
January 1997. On 12 February 1997, the prosecution filed its Opposition 13 alleging that the
warrantless search was legal as an incident to the lawful arrest and that it has proven its case, so it is
now time for the defense to present its evidence.

67
On 13 March 1997, the respondent judge, the Hon. Perfecto A.S. Laguio, Jr., issued the herein
assailed Resolution14 granting Wangs Demurrer to Evidence and acquitting him of all charges for lack
of evidence, thus:

WHEREFORE, the accused's undated Demurrer to Evidence is hereby granted; the accused is
acquitted of the charges against him for the crimes of Violation of Section 16, Article III of the
Dangerous Drugs Act, Illegal Possession of Firearms, and Violation of Comelec Gun Ban, for lack of
evidence; the 32 bags of shabu with a total weight of 29.2941 kilograms and the two unlicensed
pistols, one AMT Cal. .380 9mm and one Daewoo Cal. 9mm. are ordered confiscated in favor of the
government and the branch clerk is directed to turn over the 32 bags of shabu to the Dangerous
Drugs Board in Intramuros, Manila, and the two firearms to the Firearms and Explosive Units, PNP,
Camp Crame, Quezon City, for proper disposition, and the officer-in-charge of PARAC, Department of
Interior and Local Government, is ordered to return the confiscated amount of P650,000.00 to the
accused, and the confiscated BMW car to its registered owner, David Lee. No costs.

SO ORDERED.

Hence, this petition15 for review on certiorari by the People, submitting that the trial court erred -

XXX IN HOLDING THAT THE UNDISPUTED FACTS AND CIRCUMSTANCES DID NOT
CONSTITUTE PROBABLE CAUSE WITHIN THE CONTEMPLATION OF SECTION 2, ARTICLE III
OF THE CONSTITUTION, AND IN HOLDING THAT SUCH FACTS AND CIRCUMSTANCES
NEITHER JUSTIFIED THE WARRANTLESS SEARCH OF ACCUSED'S VEHICLE AND THE
SEIZURE OF THE CONTRABAND THEREIN.

ll

XXX IN HOLDING, IN EFFECT, THAT A WARRANTLESS SEARCH IS CONSTITUTIONALLY

ALLOWABLE AND CAN ONLY BE VALID AS AN INCIDENT TO A LAWFUL ARREST.

lII

XXX IN DECLARING THE WARRANTLESS ARREST OF THE ACCUSED AND THE SEARCH AND
SEIZURE OF HIS HANDGUNS UNLAWFUL.

IV

XXX IN NOT DECLARING THE ACCUSED AS HAVING WAIVED, AS A RESULT OF HIS

SUBMISSION AND FAILURE TO PROTEST THE SEARCH AND HIS ARREST, HIS
CONSTITUTIONAL RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE AND HIS
OBJECTION TO THE ADMISSION OF THE EVIDENCE SEIZED.

XXX IN NOT ADMITTING IN EVIDENCE THE EVIDENCE SEIZED AND OFFERED BY THE
PROSECUTION AND IN NOT DENYING ACCUSED'S DEMURRER TO EVIDENCE.

68
In its Resolution16 of 9 July 1997, the Court, without giving due course to the petition, required the
public and private respondents to comment thereon within ten days from notice. Private respondent
Wang filed his comment17on 18 August 1997.

On 10 September 1997, the Court required the People to file a reply, 18 which the Office of the Solicitor
General did on 5 December 1997, after several extensions. 19

On 20 October 2004, the Court resolved to give due course to the petition and required the parties to
submit their respective memoranda,20 which they did.

The case presents two main issues: (a) whether the prosecution may appeal the trial courts
resolution granting Wangs demurrer to evidence and acquitting him of all the charges against him
without violating the constitutional proscription against double jeopardy; and (b) whether there was
lawful arrest, search and seizure by the police operatives in this case despite the absence of a
warrant of arrest and/or a search warrant.

First off, it must be emphasized that the present case is an appeal filed directly with this Court via a
petition for review on certiorari under Rule 45 in relation to Rule 41, Section 2, paragraph (c) of the
Rules of Court raising only pure questions of law, ordinary appeal by mere filing of a notice of appeal
not being allowed as a mode of appeal directly to this Court. Then, too, it bears stressing that the right
to appeal is neither a natural right nor a part of due process, it being merely a statutory privilege
which may be exercised only in the manner provided for by law (Velasco v. Court of Appeals 21).
Although Section 2, Rule 122 of the Rules on Criminal Procedure states that any party may appeal,
the right of the People to appeal is, in the very same provision, expressly made subject to the
prohibition against putting the accused in double jeopardy. It also basic that appeal in criminal cases
throws the whole records of the case wide open for review by the appellate court, that is why any
appeal from a judgment of acquittal necessarily puts the accused in double jeopardy. In effect, the
very same Section 2 of Rule 122 of the Rules on Criminal Procedure, disallows appeal by the People
from judgments of acquittal.

An order granting an accuseds demurrer to evidence is a resolution of the case on the merits, and it
amounts to an acquittal. Generally, any further prosecution of the accused after an acquittal would
violate the constitutional proscription on double jeopardy. To this general rule, however, the Court has
previously made some exceptions.

The celebrated case of Galman v. Sandiganbayan 22 presents one exception to the rule on double
jeopardy, which is, when the prosecution is denied due process of law:

No court whose Presiding Justice has received "orders or suggestions" from the very President who
by an amendatory decree (disclosed only at the hearing of oral arguments on November 8, 1984 on a
petition challenging the referral of the Aquino-Galman murder cases to the Tanodbayan and
Sandiganbayan instead of to a court martial, as mandatorily required by the known P.D. 1850 at the
time providing for exclusive jurisdiction of courts martial over criminal offenses committed by military
men) made it possible to refer the cases to the Sandiganbayan, can be an impartial court, which is
the very essence of due process of law. As the writer then wrote, "jurisdiction over cases should be
determined by law, and not by preselection of the Executive, which could be much too easily
transformed into a means of predetermining the outcome of individual cases." This criminal collusion
as to the handling and treatment of the cases by public respondents at the secret Malacaang
conference (and revealed only after fifteen months by Justice Manuel Herrera) completely disqualified
respondent Sandiganbayan and voided ab initio its verdict. This renders moot and irrelevant for now
69
the extensive arguments of respondents accused, particularly Generals Ver and Olivas and those
categorized as accessories, that there has been no evidence or witness suppressed against them,
that the erroneous conclusions of Olivas as police investigator do not make him an accessory of the
crimes he investigated and the appraisal and evaluation of the testimonies of the witnesses presented
and suppressed. There will be time and opportunity to present all these arguments and
considerations at the remand and retrial of the cases herein ordered before a neutral and impartial
court.

The Supreme Court cannot permit such a sham trial and verdict and travesty of justice to stand
unrectified. The courts of the land under its aegis are courts of law and justice and equity. They would
have no reason to exist if they were allowed to be used as mere tools of injustice, deception and
duplicity to subvert and suppress the truth, instead of repositories of judicial power whose judges are
sworn and committed to render impartial justice to all alike who seek the enforcement or protection of
a right or the prevention or redress of a wrong, without fear or favor and removed from the pressures
of politics and prejudice. More so, in the case at bar where the people and the world are entitled to
know the truth, and the integrity of our judicial system is at stake. In life, as an accused before the
military tribunal Ninoy had pleaded in vain that as a civilian he was entitled to due process of law and
trial in the regular civil courts before an impartial court with an unbiased prosecutor. In death, Ninoy,
as the victim of the "treacherous and vicious assassination" and the relatives and sovereign people
as the aggrieved parties plead once more for due process of law and a retrial before an impartial
court with an unbiased prosecutor. The Court is constrained to declare the sham trial a mock trial
the non-trial of the century and that the predetermined judgment of acquittal was unlawful and void
ab initio.

1. No double jeopardy. It is settled doctrine that double jeopardy cannot be invoked against this
Court's setting aside of the trial courts' judgment of dismissal or acquittal where the prosecution which
represents the sovereign people in criminal cases is denied due process. As the Court stressed in the
1985 case of People vs. Bocar,

Where the prosecution is deprived of a fair opportunity to prosecute and prove its case, its right to
due process is thereby violated.

The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted
of their jurisdiction. Thus, the violation of the State's right to due process raises a serious jurisdictional
issue (Gumabon vs. Director of the Bureau of Prisons, L-30026, 37 SCRA 420 [Jan. 30, 1971]) which
cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due
process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction
(Aducayen vs. Flores, L-30370 [May 25, 19731, 51 SCRA 78; Shell Co. vs. Enage, L-30111-12, 49
SCRA 416 Feb. 27, 1973]). Any judgment or decision rendered notwithstanding such violation may be
regarded as a "lawless thing, which can be treated as an outlaw and slain at sight, or ignored
wherever it exhibits its head" (Aducayen vs. Flores, supra).

Respondent Judge's dismissal order dated July 7, 1967 being null and void for lack of jurisdiction, the
same does not constitute a proper basis for a claim of double jeopardy (Serino vs. Zosa, supra).

xxx xxx xxx

Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after
arraignment, (d) a valid plea having been entered; and (e) the case was dismissed or otherwise
terminated without the express consent of the accused (People vs. Ylagan, 58 Phil. 851). The lower
70
court was not competent as it was ousted of its jurisdiction when it violated the right of the
prosecution to due process.

In effect, the first jeopardy was never terminated, and the remand of the criminal case for further
hearing and/or trial before the lower courts amounts merely to a continuation of the first jeopardy, and
does not expose the accused to a second jeopardy.

Another exception is when the trial court commits grave abuse of discretion in dismissing a criminal
case by granting the accuseds demurrer to evidence. In point is the fairly recent case of People v.
Uy,23 which involved the trial courts decision which granted the two separate demurrers to evidence
filed by the two accused therein, both with leave of court, resulting in their acquittal of their respective
charges of murder due to insufficiency of evidence. In resolving the petition for certiorari filed directly
with this Court, we had the occasion to explain:

The general rule in this jurisdiction is that a judgment of acquittal is final and unappealable. People v.
Court of Appeals explains the rationale of this rule:

In our jurisdiction, the finality-of-acquittal doctrine as a safeguard against double jeopardy faithfully
adheres to the principle first enunciated in Kepner v. United States. In this case, verdicts of acquittal
are to be regarded as absolutely final and irreviewable. The cases of United States v. Yam Tung
Way, People v. Bringas, Gandicela v. Lutero, People v. Cabarles, People v. Bao, to name a few, are
illustrative cases. The fundamental philosophy behind the constitutional proscription against double
jeopardy is to afford the defendant, who has been acquitted, final repose and safeguard him from
government oppression through the abuse of criminal processes. As succinctly observed in Green v.
United States "(t)he underlying idea, one that is deeply ingrained in at least the Anglo-American
system of jurisprudence, is that the State with all its resources and power should not be allowed to
make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to
embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and
insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty."
(Underscoring supplied)

The same rule applies in criminal cases where a demurrer to evidence is granted. As held in the case
of People v. Sandiganbayan:

The demurrer to evidence in criminal cases, such as the one at bar, is "filed after the prosecution had
rested its case," and when the same is granted, it calls "for an appreciation of the evidence adduced
by the prosecution and its sufficiency to warrant conviction beyond reasonable doubt, resulting in
a dismissal of the case on the merits, tantamount to an acquittal of the accused." Such dismissal of a
criminal case by the grant of demurrer to evidence may not be appealed, for to do so would be to
place the accused in double-jeopardy. The verdict being one of acquittal, the case ends there. (Italics
in the original)

Like any other rule, however, the above-said rule is not absolute. By way of exception, a judgment of
acquittal in a criminal case may be assailed in a petition for certiorari under Rule 65 of the Rules of
Court upon a clear showing by the petitioner that the lower court, in acquitting the accused,
committed not merely reversible errors of judgment but also grave abuse of discretion amounting to
lack or excess of jurisdiction or a denial of due process, thus rendering the assailed judgment void.
(Emphasis supplied.)

71
In Sanvicente v. People,24 the Court allowed the review of a decision of the Court of Appeals (CA)
which reversed the accuseds acquittal upon demurrer to evidence filed by the accused with leave of
court, the CA ruling that the trial court committed grave abuse of discretion in preventing the
prosecution from establishing the due execution and authenticity of certain letter marked therein as
Exhibit "LL," which supposedly "positively identified therein petitioner as the perpetrator of the crime
charged." The Court, in a petition for certiorari, sustained the CAs power to review the order granting
the demurrer to evidence, explaining thus:

Under Rule 119, Section 23 of the Revised Rules of Criminal Procedure, as amended, the trial court
may dismiss the action on the ground of insufficiency of evidence upon a demurrer to evidence filed
by the accused with or without leave of court. In resolving accuseds demurrer to evidence, the court
is merely required to ascertain whether there is competent or sufficient evidence to sustain the
indictment or support a verdict of guilt.

The grant or denial of a demurrer to evidence is left to the sound discretion of the trial court and its
ruling on the matter shall not be disturbed in the absence of a grave abuse of discretion. Significantly,
once the court grants the demurrer, such order amounts to an acquittal and any further prosecution of
the accused would violate the constitutional proscription on double jeopardy. This constitutes an
exception to the rule that the dismissal of a criminal case made with the express consent of the
accused or upon his own motion bars a plea of double jeopardy. The finality-of-acquittal rule was
stressed thus in People v. Velasco:

The fundamental philosophy highlighting the finality of an acquittal by the trial court cuts deep into the
"humanity of the laws and in jealous watchfulness over the rights of the citizens, when brought in
unequal contest with the State xxx. Thus Green expressed the concern that "(t)he underlying idea,
one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State
with all its resources and power should not be allowed to make repeated attempts to convict an
individual for an alleged offense thereby subjecting him to embarrassment, expense and ordeal and
compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the
possibility that even though innocent, he may be found guilty."

It is axiomatic that on the basis of humanity, fairness and justice, an acquitted defendant is entitled to
the right of repose as a direct consequence of the finality of his acquittal. The philosophy underlying
this rule establishing the absolute nature of acquittals is "part of the paramount importance criminal
justice system attaches to the protection of the innocent against wrongful conviction." The interest in
the finality-of-acquittal rule, confined exclusively to verdicts of not guilty, is easy to understand: it is a
need for "repose", a desire to know the exact extent of ones liability. With this right of repose, the
criminal justice system has built in a protection to insure that the innocent, even those whose
innocence rests upon a jurys leniency, will not be found guilty in a subsequent proceeding.

Given the far-reaching scope of an accuseds right against double jeopardy, even an appeal based on
an alleged misappreciation of evidence will not lie. The only instance when double jeopardy will not
attach is when the trial court acted with grave abuse of discretion amounting to lack or excess of
jurisdiction, such as where the prosecution was denied the opportunity to present its case or where
the trial was a sham. However, while certiorari may be availed of to correct an erroneous acquittal,
the petitioner in such an extraordinary proceeding must clearly demonstrate that the trial court
blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice.
(Emphasis supplied.)

72
By this time, it is settled that the appellate court may review dismissal orders of trial courts granting
an accuseds demurrer to evidence. This may be done via the special civil action of certiorari under
Rule 65 based on the ground of grave abuse of discretion, amounting to lack or excess of jurisdiction.
Such dismissal order, being considered void judgment, does not result in jeopardy. Thus, when the
order of dismissal is annulled or set aside by an appellate court in an original special civil action via
certiorari, the right of the accused against double jeopardy is not violated.

Unfortunately, what petitioner People of the Philippines, through then Secretary of Justice Teofisto T.
Guingona, Jr. and then Solicitor General Silvestre H. Bello, III, filed with the Court in the present case
is an appeal by way of a petition for review on certiorari under Rule 45 raising a pure question of law,
which is different from a petition for certiorari under Rule 65.

In Madrigal Transport Inc. v. Lapanday Holdings Corporation, 25 we have enumerated the distinction
between the two remedies/actions, to wit:

Appeal and Certiorari Distinguished

Between an appeal and a petition for certiorari, there are substantial distinctions which shall be
explained below.

As to the Purpose. Certiorari is a remedy designed for the correction of errors of jurisdiction, not
errors of judgment. In Pure Foods Corporation v. NLRC, we explained the simple reason for the rule
in this light:

"When a court exercises its jurisdiction, an error committed while so engaged does not deprive it of
the jurisdiction being exercised when the error is committed. If it did, every error committed by a court
would deprive it of its jurisdiction and every erroneous judgment would be a void judgment. This
cannot be allowed. The administration of justice would not survive such a rule. Consequently, an error
of judgment that the court may commit in the exercise of its jurisdiction is not correct[a]ble through the
original civil action of certiorari."

The supervisory jurisdiction of a court over the issuance of a writ of certiorari cannot be exercised for
the purpose of reviewing the intrinsic correctness of a judgment of the lower court -- on the basis
either of the law or the facts of the case, or of the wisdom or legal soundness of the decision. Even if
the findings of the court are incorrect, as long as it has jurisdiction over the case, such correction is
normally beyond the province of certiorari. Where the error is not one of jurisdiction, but of an error of
law or fact -- a mistake of judgment -- appeal is the remedy.

As to the Manner of Filing. Over an appeal, the CA exercises its appellate jurisdiction and power of
review. Over a certiorari, the higher court uses its original jurisdiction in accordance with its power of
control and supervision over the proceedings of lower courts. An appeal is thus a continuation of the
original suit, while a petition for certiorari is an original and independent action that was not part of the
trial that had resulted in the rendition of the judgment or order complained of. The parties to an appeal
are the original parties to the action. In contrast, the parties to a petition for certiorari are the
aggrieved party (who thereby becomes the petitioner) against the lower court or quasi-judicial agency,
and the prevailing parties (the public and the private respondents, respectively).

As to the Subject Matter. Only judgments or final orders and those that the Rules of Court so declared
are appealable. Since the issue is jurisdiction, an original action for certiorari may be directed against

73
an interlocutory order of the lower court prior to an appeal from the judgment; or where there is no
appeal or any plain, speedy or adequate remedy.

As to the Period of Filing. Ordinary appeals should be filed within fifteen days from the notice of
judgment or final order appealed from. Where a record on appeal is required, the appellant must file a
notice of appeal and a record on appeal within thirty days from the said notice of judgment or final
order. A petition for review should be filed and served within fifteen days from the notice of denial of
the decision, or of the petitioners timely filed motion for new trial or motion for reconsideration. In an
appeal by certiorari, the petition should be filed also within fifteen days from the notice of judgment or
final order, or of the denial of the petitioners motion for new trial or motion for reconsideration.

On the other hand, a petition for certiorari should be filed not later than sixty days from the notice of
judgment, order, or resolution. If a motion for new trial or motion for reconsideration was timely filed,
the period shall be counted from the denial of the motion.

As to the Need for a Motion for Reconsideration. A motion for reconsideration is generally required
prior to the filing of a petition for certiorari, in order to afford the tribunal an opportunity to correct the
alleged errors. Note also that this motion is a plain and adequate remedy expressly available under
the law. Such motion is not required before appealing a judgment or final order.

Also in Madrigal, we stressed that the special civil action of certiorari and appeal are two different
remedies mutually exclusive; they are neither alternative nor successive. Where appeal is available,
certiorari will not prosper. In the dismissal of a criminal case upon demurrer to evidence, appeal is not
available as such an appeal will put the accused in double jeopardy. Certiorari, however, is allowed.

For being the wrong remedy taken by petitioner People of the Philippines in this case, this petition is
outrightly dismissible. The Court cannot reverse the assailed dismissal order of the trial court by
appeal without violating private respondents right against double jeopardy.

Even assuming that the Court may treat an "appeal" as a special civil action of certiorari, which
definitely this Court has the power to do, when there is a clear showing of grave abuse of discretion
committed by the lower court, the instant petition will nevertheless fail on the merits as the
succeeding discussion will show.

There are actually two (2) acts involved in this case, namely, the warrantless arrest and the
warrantless search. There is no question that warrantless search may be conducted as an incident to
a valid warrantless arrest. The law requires that there be first a lawful arrest before a search can be
made; the process cannot be reversed.26 However, if there are valid reasons to conduct lawful search
and seizure which thereafter shows that the accused is currently committing a crime, the accused
may be lawfully arrested in flagrante delicto27 without need for a warrant of arrest.

Finding that the warrantless arrest preceded the warrantless search in the case at bar, the trial court
granted private respondent's demurrer to evidence and acquitted him of all the three charges for lack
of evidence, because the unlawful arrest resulted in the inadmissibility of the evidence gathered from
an invalid warrantless search. The trial courts ratiocination is quoted as follows:

The threshold issue raised by the accused in his Demurrer to Evidence is whether his warrantless
arrest and search were lawful as argued by the prosecution, or unlawful as asserted by the defense.

74
Under Section 5, Rule 113 of the New Rules of Court, a peace officer may arrest a person without a
warrant: (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 being transferred from one confinement to
another. None of these circumstances were present when the accused was arrested. The accused
was merely walking from the Maria Orosa Apartment and was about to enter the parked BMW car
when the police officers arrested and frisked him and searched his car. The accused was not
committing any visible offense at the time of his arrest. Neither was there an indication that he was
about to commit a crime or that he had just committed an offense. The unlicensed AMT Cal.380 9mm
Automatic Back-up Pistol that the accused had in his possession was concealed inside the right front
pocket of his pants. And the handgun was bantam and slim in size that it would not give an outward
indication of a concealed gun if placed inside the pant's side pocket as was done by the accused. The
arresting officers had no information and knowledge that the accused was carrying an unlicensed
handgun, nor did they see him in possession thereof immediately prior to his arrest.

Ditto on the 32 bags of shabu and the other unlicensed Daewoo Cal. 9mm Pistol with magazine that
were found and seized from the car. The contraband items in the car were not in plain view. The 32
bags of shabu were in the trunk compartment, and the Daewoo handgun was underneath the drivers
seat of the car. The police officers had no information, or knowledge that the banned articles were
inside the car, or that the accused had placed them there. The police officers searched the car on
mere suspicion that there was shabu therein.

On this matter, pertinent portions of the testimonies of Police Inspector Cielito Coronel and SP03
Reynaldo are hereunder quoted:

POLICE INSPECTOR CIELITO CORONELS TESTIMONY

"PROSECUTOR TO WITNESS: Direct-Examination

Q. Mr. Witness, what was your role or participation in this case?

A. I am one of those responsible for the arrest of the accused.

xxx xxx xxx

Q. Where did you make that arrest, Mr. Witness?

A. The apprehension was made in front of an apartment along Maria Orosa Street, Ermita, Manila.

Q. What date was that when you arrested the accused?

A. It was on May 17, 1996, at about 2:10 a.m.

xxx xxx xxx

Q. What was the reason why you together with other policemen effected the arrest of the accused?

75
A. We arrested him because of the information relayed to us by one of those whom we have
previously apprehended in connection with the delivery of shabu somewhere also in Ermita, Manila.

xxx xxx xxx

Q. When you established that he was somewhere at Maria Orosa, what did you do?

A. We waited for him.

xxx xxx xxx

Q. You yourself, Mr. Witness, where did you position yourself during that time?

A. I was inside a vehicle waiting for the accused to appear.

Q. What about your other companions where were they?

A. They were position in strategic places within the area.

Q. What happened when you and your companions were positioned in that place?

A. That was when the accused arrived.

Q. How many of your approached him.

A. Inspector Margallo, myself and two other operatives.

Q. What happened when you approached the accused, Mr. Witness?

A. We introduced ourselves as police officers and we frisked him and we asked him to open the back
compartment of his car.

Q. You said you frisked him, what was the result of that?

A. He was found in possession of one back-up pistol with one loaded magazine and likewise when
the compartment was opened several plastic bags containing white crystalline substance suspected
to be shabu (were found).

Q. What did you do when you found out Mr. Witness?

A. When the car was further search we later found another firearm, a Daewoo Pistol at the place
under the seat of the driver.

Q. Then what happened?

A. He was brought to our headquarters at Mandaluyong for further investigation.

Q. What about the suspected shabu that you recovered, what did you do with that?

76
A. The suspected shabu that we recovered were forwarded to the NBI for laboratory examination.

Q. Did you come to know the results?

A. It was found positive for methamphetamine hydrochloride. (TSN, pp. 3-8, November 15, 1996).

ATTY. LOZANO TO WITNESS: CROSS

Q. You arrested Joseph Junio and Redentor Teck for alleged transporting of shabu on May 16, 1996,
at 11:00 p.m., is it not?

A. Yes, Sir.

Q. You asked Redentor Teck where he is employed, is it not?

A. Yes, Sir.

xxx xxx xxx

Q. Redentor Teck told you that he is a talent manager at the Glenmore Modeling Agency, is it not?

A. Yes, Sir.

.Q. The Glenmore Modeling Agency is owned by Lawrence Wang, is it not?

A. I supposed, Sir.

Q. And that is why immediately after Redentor Teck told you that he is an employee of the Glenmore
Modeling Agency owned by Lawrence Wang, naturally, you and your companions look for Lawrence
Wang to shed light on the transporting of shabu by Redentor Teck and Joseph Junio, is it not?

A. Yes, Sir.

Q. Thereafter, you spotted a person previously described by Redentor Teck as Lawrence Wang, is it
not?

A. Yes, Sir.

Q. While you were arresting Lawrence Wang, your companions at the same time searched the BMW
car described in your affidavit of arrest, is it not?

A. Yes, Sir.

xxx xxx xxx

Q. Lawrence Wang was not inside the BMW car while the same was searched, is it not?

A. He was outside, Sir.

77
Q. The driver of the car was inside the car when the arrest and search were made, is it not?

A. He was likewise outside, Sir.

Q. Lawrence Wang did resist arrest and search is it not?

A. Yes, Sir.

Q. When you effected the arrest, there was no warrant of arrest, is it not?

A. Yes, Sir.

Q. When the search was made on the BMW car, there was no search warrant, is it not?

A. Yes, none, Sir. (TSN, pp. 3-12, November 15, 1996)

SPO3 REYNALDO CRISTOBALS TESTIMONY

PROSECUTOR TO WITNESS: DIRECT EXAMINATION

Q. What is you role or participation in this case?

A. I was one of the arresting officers and investigator, Sir.

xxx xxx xxx

Q. What kind of specific offense did the accused allegedly do so that you arrested him, Mr. Witness?

A. He was arrested on the basis of the recovered drugs in his possession placed inside his car.

xxx xxx xxx

Q. Mr. witness, you said that you recovered drug from the car of the accused, please tell us the
antecedent circumstances which led you to recover or confiscate these items?

A. Earlier in the evening about 11:00 p.m. of May 16, we arrested one Redentor Teck and Joseph
Junio.

COURT: Where did you arrest these people?

A They were arrested in Metro Manila also.

COURT: The same date?

A. May 16, about 11:00 p.m. They were arrested and when they were investigated, Teck mentioned
the name of Lawrence Wang as his employer.

COURT: Why were these people, arrested?

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A. For violation of R.A. 6425.

COURT: How were they arrested?

A. They were arrested while in the act of transporting shabu or handling shabu to another previously
arrested person. It was a series of arrest.

COURT: So, this involved a series of operation?

A. Yes, Your Honor. About 11:00 p.m. of May 16, we arrested three (3) persons, SPO2 Vergel de
Dios, a certain Arellano and a certain Rogelio Noble. When they were arrested they divulged the
name of the source.

COURT: They were arrested for what, for possession?

A. Yes, Your Honor. For unlawful possession of shabu . Then they divulged to us the name of the
person from whom they get shabu.

COURT: Whose name did they mention:

A. One Alias Frank, who turned out to be Redentor Teck and Joseph Junio. We let them call Redentor
Teck and Joseph Junio thru the cellphone and pretend and to order another supply of shabu.

COURT: So there was an entrapment?

A. Yes, Your Honor.

COURT: So, these two (2) were arrested?

A. While they were about to hand over another bag of shabu to Noble and company.

COURT: And these two reveals (revealed) some information to you as to the source of the shabu?

A. Yes, Your Honor.

COURT: What was the information?

A. Teck told us that he is an employee of Lawrence Wang.

COURT: What did you do when you were told about that?

A. They also told us that there was an ongoing delivery of shabu on that morning.

COURT: When?

A. Of that date early morning of May 17, 1996.

COURT: At what place?

79
A. We asked them where we could find Lawrence Wang and Teck lead us to Maria Orosa Apartment
where we conducted a stake out which lasted up to 2:00 a.m.

xxx xxx xxx

COURT: What happened during the stake out?

A. When the person of the accused was identified to us, we saw him opening his car together with his
driver.

COURT: So, he was about to leave when you saw him?

A. Probably, Sir.

COURT: What did you do?

A. We saw him opened his car and we have a suspicion that there was a shabu inside the
compartment of the car.

xxx xxx xxx

COURT: All right, when you saw the accused opened his car, what did you do?

A. We approached him.

COURT: What happened when you approached him?

A. We suspected the shabu inside the compartment of his car.

COURT: And this shabu that you saw inside the compartment of the car, what did you do with that?

A. Well, he was first arrested by Captain Margallo and Lt. Coronel while I was the one who inspected
and opened the compartment of the car and saw the shabu. (TSN, pp. 15-24, December 16, 1996).

CLARIFICATORY QUESTIONING OF SPO3 CRISTOBAL BY THE COURT

COURT: From your testimony and that of Police Inspector Cielito Coronel, this Court has gathered
that prior to the arrest of the accused there were three (3) men that your team arrested. One of whom
is a police officer.

A: Yes, Sir.

xxx xxx xxx

COURT: And on the occasion of the arrest of these three men shabu were confiscated from them?

A: Yes, Sir.

80
Q: And in the course of the investigation of these three men, you were able to discover that Redentor
Teck and Joseph Junio were the source of the regulated drug that were confiscated from the three
men that you have arrested?

A: Yes, Sir.

Q: Now, thru entrapment base[d] on your testimony you were able to apprehend also these two men,
Redentor Teck and Joseph Junio?

A: Yes, Sir.

xxx xxx xxx

Q: These two men, Redentor Teck and Joseph Junio they were also investigated by your team?

A: Yes, Sir.

Q: You were present while they were investigated?

A: I was the one whom investigated them.

xxx xxx xxx

Q: Did you ask Redentor and Joseph the source of shabu that you confiscated from them at the time
of the (their) arrest?

A: Yes, Sir. They refuse to say the source, however, they told me that they were working for the
accused.

Q: You also testified that Redentor informed you that there was another delivery of shabu scheduled
that morning of (stop) was it May 16 or 17? The other delivery that is scheduled on?

A: On the 17th.

xxx xxx xxx

Q: Did he tell you who was to make the delivery?

A: No, Sir.

xxx xxx xxx

Q: At that time when you decided to look for the accused to ask him to shed light on the matter
concerning the arrest of these two employees in possession of shabu. Did you and did your team
suspect the accused as being involved in the transaction that lead (led) to the arrest of Redentor and
Joseph?

A: Yes, Sir. We suspected that he was the source of the shabu.

81
 xxx xxx xxx

Q: When you saw the accused walking towards his car, did you know whether he was carrying a gun?

A: No, Sir. It cannot be seen.

Q: It was concealed?

A: Yes, Sir.

Q: So, the only time that you and your team learned that he was in possession of the gun is when he
was bodily search?

A: Yes, Sir. That is the only time that I came to know about when Capt. Margallo handed to me the
gun.

Q: Other than walking towards his car, the accused was not doing anything else?

A: None, Sir.

Q: That would invite your suspicion or give indication that he was intending to do something unlawful
or illegal?

A: No, Sir.

Q: When you searched the car, did the accused protest or try to prevent your team from searching his
car?

A: No, Sir." (TSN pp. 3-16, Feb. 26, 1997)

Clearly therefore, the warrantless arrest of the accused and the search of his person and the car were
without probable cause and could not be licit. The arrest of the accused did not fall under any of the
exception to the requirements of warrantless arrests, (Sec. 5, Rule 113, Rules of Court) and is
therefore, unlawful and derogatory of his constitutional right of liberty. x x x

The trial court resolved the case on the basis of its findings that the arrest preceded the search, and
finding no basis to rule in favor of a lawful arrest, it ruled that the incidental search is likewise
unlawful. Any and all pieces of evidence acquired as a consequence thereof are inadmissible in
evidence. Thus, the trial court dismissed the case for lack of evidence.

Contrary to its position at the trial court, the People, however, now posits that "inasmuch as it has
been shown in the present case that the seizure without warrant of the regulated drugs and
unlicensed firearms in the accuseds possession had been validly made upon probable cause and
under exigent circumstances, then the warrantless arrest of the accused must necessarily have to be
regarded as having been made on the occasion of the commission of the crime in flagrante delicto,
and therefore constitutionally and statutorily permissible and lawful." 28In effect, the People now
contends that the warrantless search preceded the warrantless arrest. Since the case falls under an
exception to the general rule requiring search warrant prior to a valid search and seizure, the police

82
officers were justified in requiring the private respondent to open his BMW cars trunk to see if he was
carrying illegal drugs.

The conflicting versions as to whether the arrest preceded the search or vice versa, is a matter of
credibility of evidence. It entails appreciation of evidence, which may be done in an appeal of a
criminal case because the entire case is thrown open for review, but not in the case of a petition for
certiorari where the factual findings of the trial court are binding upon the Court. Since a dismissal
order consequent to a demurrer to evidence is not subject to appeal and reviewable only by certiorari,
the factual finding that the arrest preceded the search is conclusive upon this Court. The only legal
basis for this Court to possibly reverse and set aside the dismissal order of the trial court upon
demurrer to evidence would be if the trial court committed grave abuse of discretion in excess of
jurisdiction when it ruled that there was no legal basis to lawfully effect a warrantless arrest.

The pertinent provisions of Rule 113 of the Rules on Criminal Procedure on warrantless arrest
provide:

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

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

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

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

Section 5, above, provides three (3) instances when warrantless arrest may be lawfully effected: (a)
arrest of a suspect in flagrante delicto; (b) arrest of a suspect where, based on personal knowledge of
the arresting officer, there is probable cause that said suspect was the author of a crime which had
just been committed; (c) arrest of a prisoner who has escaped from custody serving final judgment or
temporarily confined while his case is pending.

For a warrantless arrest of an accused caught in flagrante delicto under paragraph (a) of Section 5 to
be valid, two requisites must concur: (1) the person to be arrested must execute an overt act
indicating that he has just committed, is actually committing, or is attempting to commit a crime; and
(2) such overt act is done in the presence or within the view of the arresting officer. 291awphi1.nt

The facts and circumstances surrounding the present case did not manifest any suspicious behavior
on the part of private respondent Lawrence Wang that would reasonably invite the attention of the
police. He was merely walking from the Maria Orosa Apartment and was about to enter the parked
BMW car when the police operatives arrested him, frisked and searched his person and commanded
him to open the compartment of the car, which was later on found to be owned by his friend, David
Lee. He was not committing any visible offense then. Therefore, there can be no valid warrantless
arrest in flagrante delicto under paragraph (a) of Section 5. It is settled that "reliable information"
alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of

83
the arresting officers, is not sufficient to constitute probable cause that would justify an in flagrante
delicto arrest.30

Neither may the warrantless arrest be justified under paragraph (b) of Section 5. What is clearly
established from the testimonies of the arresting officers is that Wang was arrested mainly on the
information that he was the employer of Redentor Teck and Joseph Junio who were previously
arrested and charged for illegal transport of shabu. Teck and Junio did not even categorically identify
Wang to be their source of the shabu they were caught with in flagrante delicto. Upon the duos
declaration that there will be a delivery of shabu on the early morning of the following day, May 17,
which is only a few hours thereafter, and that Wang may be found in Maria Orosa Apartment along
Maria Orosa Street, the arresting officers conducted "surveillance" operation in front of said
apartment, hoping to find a person which will match the description of one Lawrence Wang, the
employer of Teck and Junio. These circumstances do not sufficiently establish the existence of
probable cause based on personal knowledge as required in paragraph (b) of Section 5.

And doubtless, the warrantless arrest does not fall under paragraph (c) of Section 5.

The inevitable conclusion, as correctly made by the trial court, is that the warrantless arrest was
illegal. Ipso jure, the warrantless search incidental to the illegal arrest is likewise unlawful.

In People v. Aminnudin,31 the Court declared as inadmissible in evidence the marijuana found in
appellants possession during a search without a warrant, because it had been illegally seized, in
disregard of the Bill of Rights:

In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor
was it shown that he was about to do so or that he had just done so. What he was doing was
descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his
arrest. To all appearances, he was like any of the other passengers innocently disembarking from the
vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly
became a suspect and so subject to apprehension. It was the fugitive finger that triggered his arrest.
The identification of the informer was the probable cause as determined by the officer (and not a
judge) that authorized them to pounce upon Aminnudin and immediately arrest him.

The Peoples contention that Wang waived his right against unreasonable search and seizure has no
factual basis. While we agree in principle that consent will validate an otherwise illegal search,
however, based on the evidence on record, Wang resisted his arrest and the search on his person
and belongings.32 The implied acquiescence to the search, if there was any, could not have been
more than mere passive conformity given under intimidating or coercive circumstances and is thus
considered no consent at all within the purview of the constitutional guarantee. 33Moreover, the
continuing objection to the validity of the warrantless arrest made of record during the arraignment
bolsters Wangs claim that he resisted the warrantless arrest and search.

We cannot close this ponencia without a word of caution: those who are supposed to enforce the law
are not justified in disregarding the rights of the individual in the name of order. Order is too high a
price for the loss of liberty. As Justice Holmes once said, "I think it is less evil that some criminals
should escape than that the government should play an ignoble part." It is simply not allowed in free
society to violate a law to enforce another, especially if the law violated is the Constitution itself. 34

WHEREFORE, the instant petition is DENIED.

84
SO ORDERED.

CANCIO C. GARCIA
Associate Justice

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 82585 November 14, 1988

85
MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and GODOFREDO L.
MANZANAS, petitioners,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila,
Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice, LUIS C.
VICTOR, THE CITY FISCAL OF MANILA and PRESIDENT CORAZON C. AQUINO, respondents.

G.R. No. 82827 November 14, 1988

LUIS D. BELTRAN, petitioner,

vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at
Manila, THE HON. LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE OF THE PHILIPPINES,
SUPERINTENDENT OF THE WESTERN POLICE DISTRICT, and THE MEMBERS OF THE
PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF MANILA, respondents.

G.R. No. 83979 November 14, 1988.

LUIS D. BELTRAN, petitioner,

vs.
EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY
ORDOEZ, UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE CITY FISCAL OF
MANILA JESUS F. GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding Judge of Branch
35 of the Regional Trial Court, at Manila, respondents.

Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.

Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R. Nos.
82827 and 83979.

RESOLUTION

PER CURIAM:

In these consolidated cases, three principal issues were raised: (1) whether or not petitioners were
denied due process when informations for libel were filed against them although the finding of the
existence of a prima faciecase was still under review by the Secretary of Justice and, subsequently,
by the President; (2) whether or not the constitutional rights of Beltran were violated when respondent
RTC judge issued a warrant for his arrest without personally examining the complainant and the
witnesses, if any, to determine probable cause; and (3) whether or not the President of the
Philippines, under the Constitution, may initiate criminal proceedings against the petitioners through
the filing of a complaint-affidavit.

Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the
Secretary of Justice denied petitioners' motion for reconsideration and upheld the resolution of the
Undersecretary of Justice sustaining the City Fiscal's finding of a prima facie case against petitioners.
A second motion for reconsideration filed by petitioner Beltran was denied by the Secretary of Justice
on April 7, 1988. On appeal, the President, through the Executive Secretary, affirmed the resolution of
86
the Secretary of Justice on May 2, 1988. The motion for reconsideration was denied by the Executive
Secretary on May 16, 1988. With these developments, petitioners' contention that they have been
denied the administrative remedies available under the law has lost factual support.

It may also be added that with respect to petitioner Beltran, the allegation of denial of due process of
law in the preliminary investigation is negated by the fact that instead of submitting his counter-
affidavits, he filed a "Motion to Declare Proceedings Closed," in effect waiving his right to refute the
complaint by filing counter-affidavits. Due process of law does not require that the respondent in a
criminal case actually file his counter-affidavits before the preliminary investigation is deemed
completed. All that is required is that the respondent be given the opportunity to submit counter-
affidavits if he is so minded.

The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision
on the issuance of warrants of arrest. The pertinent provision reads:

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

The addition of the word "personally" after the word "determined" and the deletion of the grant of
authority by the 1973 Constitution to issue warrants to "other responsible officers as may be
authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires the
judge to personally examine the complainant and his witnesses in his determination of probable
cause for the issuance of warrants of arrest. This is not an accurate interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to
satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable
cause for the issuance of a warrant of arrest, the judge is not required to personally examine the
complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally
evaluate the report and the supporting documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he
finds no probable cause, he may disregard the fiscal's report and require the submission of
supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable
cause.

Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary
examination and investigation of criminal complaints instead of concentrating on hearing and deciding
cases filed before their courts.

On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down guidelines
for the issuance of warrants of arrest. The procedure therein provided is reiterated and clarified in this
resolution.

It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with
regard to the issuance of the warrants of arrest, a finding of grave abuse of discretion amounting to
lack or excess of jurisdiction cannot be sustained.

87
Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential
immunity from suit impose a correlative disability to file suit." He contends that if criminal proceedings
ensue by virtue of the President's filing of her complaint-affidavit, she may subsequently have to be a
witness for the prosecution, bringing her under the trial court's jurisdiction. This, continues Beltran,
would in an indirect way defeat her privilege of immunity from suit, as by testifying on the witness
stand, she would be exposing herself to possible contempt of court or perjury.

The rationale for the grant to the President of the privilege of immunity from suit is to assure the
exercise of Presidential duties and functions free from any hindrance or distraction, considering that
being the Chief Executive of the Government is a job that, aside from requiring all of the office
holder's time, also demands undivided attention.

But this privilege of immunity from suit, pertains to the President by virtue of the office and may be
invoked only by the holder of the office; not by any other person in the President's behalf. Thus, an
accused in a criminal case in which the President is complainant cannot raise the presidential
privilege as a defense to prevent the case from proceeding against such accused.

Moreover, there is nothing in our laws that would prevent the President from waiving the privilege.
Thus, if so minded the President may shed the protection afforded by the privilege and submit to the
court's jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the
President's prerogative. It is a decision that cannot be assumed and imposed by any other person.

As regards the contention of petitioner Beltran that he could not be held liable for libel because of the
privileged character or the publication, the Court reiterates that it is not a trier of facts and that such a
defense is best left to the trial court to appreciate after receiving the evidence of the parties.

As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling effect"
on press freedom, the Court finds no basis at this stage to rule on the point.

The petitions fail to establish that public respondents, through their separate acts, gravely abused
their discretion as to amount to lack of jurisdiction. Hence, the writs of certiorari and prohibition
prayed for cannot issue.

WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the
part of the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585,
82827 and 83979. The Order to maintain the status quo contained in the Resolution of the Court en
banc dated April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Cortes, Grio-Aquino Medialdea and Regalado, JJ., concur.

Separate Opinions

88
GUTIERREZ, JR., J., concurring:

I concur with the majority opinion insofar as it involves the three principal issues mentioned in its
opening statement. However, as to the more important issue on whether or not the prosecution of the
libel case would produce a "chilling effect" on press freedom, I beg to reserve my vote. I believe this is
the more important issue in these petitions and it should be resolved now rather that later.

Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should not
hesitate to quash a criminal prosecution in the interest of more enlightened and substantial justice
where it is not alone the criminal liability of an accused in a seemingly minor libel case which is
involved but broader considerations of governmental power versus a preferred freedom.

We have in these four petitions the unusual situation where the highest official of the Republic and
one who enjoys unprecedented public support asks for the prosecution of a newspaper columnist, the
publisher and chairman of the editorial board, the managing editor and the business manager in a not
too indubitable a case for alleged libel.

I am fully in accord with an all out prosecution if the effect will be limited to punishing a
newspaperman who, instead of observing accuracy and fairness, engages in unwarranted personal
attacks, irresponsible twisting of facts, of malicious distortions of half-truths which tend to cause
dishonor, discredit, or contempt of the complainant. However, this case is not a simple prosecution for
libel. We have as complainant a powerful and popular President who heads the investigation and
prosecution service and appoints members of appellate courts but who feels so terribly maligned that
she has taken the unorthodox step of going to court inspite of the invocations of freedom of the press
which would inevitably follow.

I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals
and defense lawyers to argue before a trial judge.

There is always bound to be harassment inherent in any criminal prosecution. Where the harassment
goes beyond the usual difficulties encountered by any accused and results in an unwillingness of
media to freely criticize government or to question government handling of sensitive issues and public
affairs, this Court and not a lower tribunal should draw the demarcation line.

As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that
"(c)omplete liberty to comment on the conduct of public men is a scalpel in the case of free speech.
The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer
under a hostile and unjust accusation; the wound can be assuaged with the balm of a clear
conscience." The Court pointed out that while defamation is not authorized, criticism is to be expected
and should be borne for the common good.

In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:

xxx xxx xxx

... No longer is there a Minister of the Crown own or a person in authority of such
exalted position that the citizen must speak of him only with bated breath. "In the eye of
our Constitution and laws, every man is a sovereign, a ruler and a freeman, and has
equal rights with every other man." (at p. 900)

89
In fact, the Court observed that high official position, instead of affording immunity from slanderous
and libelous charges, would actually invite attacks by those who desire to create sensation. It would
seem that what would ordinarily be slander if directed at the typical person should be examined from
various perspectives if directed at a high government official. Again, the Supreme Court should draw
this fine line instead of leaving it to lower tribunals.

This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977]) that a
prosecution for libel lacks justification if the offending words find sanctuary within the shelter of the
free press guaranty. In other words, a prosecution for libel should not be allowed to continue, where
after discounting the possibility that the words may not be really that libelous, there is likely to be a
chilling effect, a patently inhibiting factor on the willingness of newspapermen, especially editors and
publishers to courageously perform their critical role in society. If, instead of merely reading more
carefully what a columnist writes in his daily column, the editors tell their people to lay off certain
issues or certain officials, the effect on a free press would be highly injurious.

Because many questions regarding press freedom are left unanswered by our resolution, I must call
attention to our decisions which caution that "no inroads on press freedom should be allowed in the
guise of punitive action visited on what otherwise should be characterized as libel." (Lopez v. Court of
Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v. Gutierrez, supra).

The United States Supreme Court is even more emphatic, to wit:

In deciding the question now, we are compelled by neither precedent nor policy to give
any more weight to the epithet "libel" than we have to other "mere labels" of state law.
N. A. A. C. P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like
insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity,
solicitation of legal business, and the other various other formulae for the repression of
expression that have been challenged in this Court, libel can claim no talismanic
immunity from constitutional limitations. It must be measured by standards that satisfy
the First Amendment.

xxx xxx xxx

Those who won our independence believed ... that public discussion is a political duty;
and that this should be a fundamental principle of the American government. They
recognized the risk to which all human institutions are subject. But they knew that order
cannot be secured merely through fear of punishment for its infraction; that it is
hazardous to discourage thought, hope and imagination; that fear breeds repression;
that repression breeds hate; that hate menaces stable government; that the path of
safety lies in the opportunity to discuss freely supposed grievances and proposed
remedies; and that the fitting remedy for evil counsel is good ones. Believing in the
power of reason as applied through public discussion, they eschewed silence coerced
by lawthe argument of force in its worst form. ...

Thus we consider this case against the background of a profound national commitment
to the principle that debate on public issues should be uninhibited, robust, and wide
open, and that it may well include vehement, caustic, and sometimes unpleasantly
sharp attacks on government and public officials. ... (at pp. 700-701)

90
Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that Messrs.
Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly
participated in a wilful purveying of falsehood? Considering the free speech aspects of these
petitions, should not a differentiated approach to their particular liabilities be taken instead of lumping
up everybody with the offending columnist? I realize that the law includes publishers and editors but
perhaps the "chilling effect" issue applies with singular effectivity to publishers and editors vis-a-vis
newspaper columnists. There is no question that, ordinarily, libel is not protected by the free speech
clause but we have to understand that some provocative words, which if taken literally may appear to
shame or disparage a public figure, may really be intended to provoke debate on public issues when
uttered or written by a media personality. Will not a criminal prosecution in the type of case now
before us dampen the vigor and limit the variety of public debate? There are many other questions
arising from this unusual case which have not been considered.

I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly
drawn ones. I see no reason to disagree with the way the Court has resolved them. The first issue on
prematurity is moot. The second issue discusses a procedure now embodied in the recently amended
Rules of Court on how a Judge should proceed before he issues a warrant of arrest. Anent the third
issue, considerations of public policy dictate that an incumbent President should not be sued. At the
same time, the President cannot stand by helplessly bereft of legal remedies if somebody vilifies or
maligns him or her.

The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception. I
know that most of our fiscals and judges are courageous individuals who would not allow any
considerations of possible consequences to their careers to stand in the way of public duty. But why
should we subject them to this problem? And why should we allow the possibility of the trial court
treating and deciding the case as one for ordinary libel without bothering to fully explore the more
important areas of concern, the extremely difficult issues involving government power and freedom of
expression.

However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to
reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v.
Illinois (343 U. S. 250) when he said:

If one can claim to announce the judgment of legal history on any subject, it is that
criminal libel laws are consistent with the concept of ordered liberty only when applied
with safeguards evolved to prevent their invasion of freedom of expression.

In the trial of the libel case against the petitioners, the safeguards in the name of freedom of
expression should be faithfully applied.

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur with the majority opinion insofar as it involves the three principal issues mentioned in its
opening statement. However, as to the more important issue on whether or not the prosecution of the
libel case would produce a "chilling effect" on press freedom, I beg to reserve my vote. I believe this is
the more important issue in these petitions and it should be resolved now rather that later.

91
Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should not
hesitate to quash a criminal prosecution in the interest of more enlightened and substantial justice
where it is not alone the criminal liability of an accused in a seemingly minor libel case which is
involved but broader considerations of governmental power versus a preferred freedom.

We have in these four petitions the unusual situation where the highest official of the Republic and
one who enjoys unprecedented public support asks for the prosecution of a newspaper columnist, the
publisher and chairman of the editorial board, the managing editor and the business manager in a not
too indubitable a case for alleged libel.

I am fully in accord with an all out prosecution if the effect will be limited to punishing a
newspaperman who, instead of observing accuracy and fairness, engages in unwarranted personal
attacks, irresponsible twisting of facts, of malicious distortions of half-truths which tend to cause
dishonor, discredit, or contempt of the complainant. However, this case is not a simple prosecution for
libel. We have as complainant a powerful and popular President who heads the investigation and
prosecution service and appoints members of appellate courts but who feels so terribly maligned that
she has taken the unorthodox step of going to court inspite of the invocations of freedom of the press
which would inevitably follow.

I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals
and defense lawyers to argue before a trial judge.

There is always bound to be harassment inherent in any criminal prosecution. Where the harassment
goes beyond the usual difficulties encountered by any accused and results in an unwillingness of
media to freely criticize government or to question government handling of sensitive issues and public
affairs, this Court and not a lower tribunal should draw the demarcation line.

As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that
"(c)omplete liberty to comment on the conduct of public men is a scalpel in the case of free speech.
The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer
under a hostile and unjust accusation; the wound can be assuaged with the balm of a clear
conscience." The Court pointed out that while defamation is not authorized, criticism is to be expected
and should be borne for the common good.

In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:

xxx xxx xxx

... No longer is there a Minister of the Crown own or a person in authority of such
exalted position that the citizen must speak of him only with bated breath. "In the eye of
our Constitution and laws, every man is a sovereign, a ruler and a freeman, and has
equal rights with every other man." (at p. 900)

In fact, the Court observed that high official position, instead of affording immunity from slanderous
and libelous charges, would actually invite attacks by those who desire to create sensation. It would
seem that what would ordinarily be slander if directed at the typical person should be examined from
various perspectives if directed at a high government official. Again, the Supreme Court should draw
this fine line instead of leaving it to lower tribunals.

92
This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977]) that a
prosecution for libel lacks justification if the offending words find sanctuary within the shelter of the
free press guaranty. In other words, a prosecution for libel should not be allowed to continue, where
after discounting the possibility that the words may not be really that libelous, there is likely to be a
chilling effect, a patently inhibiting factor on the willingness of newspapermen, especially editors and
publishers to courageously perform their critical role in society. If, instead of merely reading more
carefully what a columnist writes in his daily column, the editors tell their people to lay off certain
issues or certain officials, the effect on a free press would be highly injurious.

Because many questions regarding press freedom are left unanswered by our resolution, I must call
attention to our decisions which caution that "no inroads on press freedom should be allowed in the
guise of punitive action visited on what otherwise should be characterized as libel." (Lopez v. Court of
Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v. Gutierrez, supra).<re||an1w>

The United States Supreme Court is even more emphatic, to wit:

In deciding the question now, we are compelled by neither precedent nor policy to give
any more weight to the epithet "libel" than we have to other "mere labels" of state law.
N. A. A. C. P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like
insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity,
solicitation of legal business, and the other various other formulae for the repression of
expression that have been challenged in this Court, libel can claim no talismanic
immunity from constitutional limitations. It must be measured by standards that satisfy
the First Amendment.

xxx xxx xxx

Those who won our independence believed ... that public discussion is a political duty;
and that this should be a fundamental principle of the American government. They
recognized the risk to which all human institutions are subject. But they knew that order
cannot be secured merely through fear of punishment for its infraction; that it is
hazardous to discourage thought, hope and imagination; that fear breeds repression;
that repression breeds hate; that hate menaces stable government; that the path of
safety lies in the opportunity to discuss freely supposed grievances and proposed
remedies; and that the fitting remedy for evil counsel is good ones. Believing in the
power of reason as applied through public discussion, they eschewed silence coerced
by lawthe argument of force in its worst form. ...

Thus we consider this case against the background of a profound national commitment
to the principle that debate on public issues should be uninhibited, robust, and wide
open, and that it may well include vehement, caustic, and sometimes unpleasantly
sharp attacks on government and public officials. ... (at pp. 700-701)

Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that Messrs.
Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly
participated in a wilful purveying of falsehood? Considering the free speech aspects of these
petitions, should not a differentiated approach to their particular liabilities be taken instead of lumping
up everybody with the offending columnist? I realize that the law includes publishers and editors but
perhaps the "chilling effect" issue applies with singular effectivity to publishers and editors vis-a-vis
newspaper columnists. There is no question that, ordinarily, libel is not protected by the free speech
93
clause but we have to understand that some provocative words, which if taken literally may appear to
shame or disparage a public figure, may really be intended to provoke debate on public issues when
uttered or written by a media personality. Will not a criminal prosecution in the type of case now
before us dampen the vigor and limit the variety of public debate? There are many other questions
arising from this unusual case which have not been considered.

I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly
drawn ones. I see no reason to disagree with the way the Court has resolved them. The first issue on
prematurity is moot. The second issue discusses a procedure now embodied in the recently amended
Rules of Court on how a Judge should proceed before he issues a warrant of arrest. Anent the third
issue, considerations of public policy dictate that an incumbent President should not be sued. At the
same time, the President cannot stand by helplessly bereft of legal remedies if somebody vilifies or
maligns him or her.

The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception. I
know that most of our fiscals and judges are courageous individuals who would not allow any
considerations of possible consequences to their careers to stand in the way of public duty. But why
should we subject them to this problem? And why should we allow the possibility of the trial court
treating and deciding the case as one for ordinary libel without bothering to fully explore the more
important areas of concern, the extremely difficult issues involving government power and freedom of
expression.

However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to
reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v.
Illinois (343 U. S. 250) when he said:

If one can claim to announce the judgment of legal history on any subject, it is that
criminal libel laws are consistent with the concept of ordered liberty only when applied
with safeguards evolved to prevent their invasion of freedom of expression.

In the trial of the libel case against the petitioners, the safeguards in the name of freedom of
expression should be faithfully applied.

SECOND DIVISION

G.R. No. 183656

GILBERT ZALAMEDA,
Petitioner,
94
 Present:

QUISUMBING, J.,Chairperson,
CARPIO-MORALES,
- versus - BRION,
DEL CASTILLO, and
ABAD, JJ.

Promulgated:
PEOPLE OF THE PHILIPPINES, September 4, 2009
Respondent.
x ------------------------------------------------------------------------------------------x

DECISION

BRION, J.:

We review in this petition for review on certiorari the decision[1] and resolution[2] of the Court of
Appeals (CA) in CA-G.R. CR No. 30061 that affirmed the February 8, 2006 decision of the Regional Trial
Court (RTC), Branch 64, Makati City.[3] This RTC decision found petitioner Gilbert Zalameda (petitioner) guilty
of violating Section 11[4] of Republic Act (R.A.) No. 9165 (The Comprehensive Dangerous Drugs Act of 2002),
and sentenced him to suffer the indeterminate penalty of imprisonment for twelve (12) years and one (1) day, as
minimum, to fourteen (14) years, as maximum. The trial court likewise found the petitioner and his co-accused
Albert Villaflor (Villaflor) guilty of violating Section 12[5] of R.A. No. 9165, and sentenced them to suffer the
indeterminate penalty of imprisonment for four (4) months and one (1) day, as minimum, to two (2) years and
seven (7) months, as maximum.

The prosecution charged the petitioner before the RTC with violation of Section 11, Article II of R.A.
No. 9165 under the following Information:

Criminal Case No. 03-3559

That on or about the 14th day of September, 2003, in the City of Makati, Philippines, and
a place within the jurisdiction of this Honorable Court, the above-named accused, not being
lawfully authorized to possess any dangerous drug and without the corresponding license or
prescription, did then and there willfully, unlawfully and feloniously possess one (1) heat sealed
transparent plastic sachet containing zero point zero three (0.03) gram of Methylampethamine
Hydrochloride (shabu), which is a dangerous drug.
CONTRARY TO LAW.[6]

The petitioner and Villaflor were likewise charged before the same court with violation of Section 12,
Article II of R.A. No. 9165. The Information for this charge reads:

95
Criminal Case No. 03-3560
That on or about the 14th day of September 2003, in the City of Makati, Philippines and a
place within the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping and aiding one another, not being lawfully authorized to
carry dangerous paraphernalia, did then and there willfully, unlawfully and feloniously have in
their possession two (2) aluminum foil strips and three (3) unsealed transparent sachets with
traces of Methylamphetamine Hydrochloride, three (3) other pieces of aluminum foils strips, one
(1) stainless scissor and one (1) disposable lighter which are instruments, apparatuses or
paraphernalia fit or intended for ingesting or introducing any dangerous drug into the body.
CONTRARY TO LAW.[7]

The petitioner and Villaflor pleaded not guilty to the charges. [8] During pre-trial, the prosecution and the defense
stipulated on the following:

PRE-TRIAL ORDER
xxx

1. That these cases were investigated by PO1 Alex Inopia;

2. That after the investigation of PO1 Alex Inopia, he prepared the Final Investigation Report;

3. That the Drug Enforcement Unit through SPO4 Arsenio Mangulabnan made a Request for
Laboratory Examination;

4. That the PNP Crime Laboratory through Police Inspector Karen Palacios conducted an
examination on the specimen submitted;

5. That Physical Science Report was issued by PNP Crime Laboratory Office detailing the
findings of the Forensic Chemist; and

6. The qualification of the Forensic Chemist.

The prosecution marked the following exhibits:

A Final Investigation Report

A-1 Signature of PO1 Alex Inopia

A-2 Signature of SPO4 Arsenio Mangulabnan

B Request for Laboratory Examination

B-1 Signature of SPO4 Arsenio Mangulabnan

C Duplicate Copy of Physical Science Report

C-1 Signature of Karen Palacios

96
 D Original Copy of Physical Science Report

D-1 Signature of Karen Palacios

D-2 Signature of Engr. Richard Allan B. Mangalip

D-3 Signature of Juanita A. Ramos

The prosecution reserved its right to present and mark additional exhibits in the course of the
trial.

The defense did not mark any exhibit but reserved the right to present and mark them in the
course of the trial.

With the stipulation entered into by the prosecution and the defense, the testimony of
Forensic Chemist Karen S. Palacios is dispensed with.

Pre-trial is terminated.[9]

Joint trial on the merits followed. The essential facts, based on the records, are summarized below.

At around 5:15 a.m. of September 14, 2003, SPO4 Mignelito Orbeta (SPO4 Orbeta), the desk officer of
Precinct 1, MakatiCity, received a phone call from a concerned citizen regarding an on-going pot session
at 2725 D. Gomez St., Barangay Tejeros, Makati City.[10] The house number was specified.[11]

Acting on this information, SPO4 Orbeta dispatched PO2 Faustino De Guia (PO2 De Guia), PO2
Renato De Guzman, (PO2 De Guzman), PO2 Gonzalo Acnam, PO1 Donie Tidang (PO1 Tidang), and one Major
Ancheta to D. Gomez St., Barangay Tejeros to verify the report. They were in uniform. [12] They reached their
intended destination at 5:25 a.m. which they found to be a house three by six (3 x 6) meters located along D.
Gomez St. They found the door of the house slightly open. [13] PO2 De Guzman peeped inside and saw the
petitioner and Villaflor sniffing smoke[14] may sinisinghot sila na usok[15] while sitting on a bed.[16] PO2 De
Guzman gave a thumbs-up sign to his companions who joined him in immediately rushing inside the house.
Villaflor was holding a tooter at that point, which he threw away. [17] The petitioner initially showed resistance
when the police introduced themselves as law enforcers. [18] They frisked the petitioner and Villafor in
accordance with police procedure,[19] and recovered from the petitioners right pocket a rectangular plastic sachet
containing white crystalline substances.[20] The police likewise found on top of the bed aluminum foils (later
confirmed to have traces of shabu), three (3) plastic sachets containing traces of white crystalline substance, a
pair of scissors, a disposable lighter, a bag with a plastic zipper, and an improvised tooter. [21] The police
handcuffed the petitioner and Villaflor, informed them of their rights and their violation of R.A. No. 9165, and
brought them to the police station.[22]

At the police station, PO2 De Guzman marked the confiscated items, [23] and turned them and the
suspects to SPO4 Arsenio Mangulabnan (SPO4 Mangulabnan). The latter prepared a request for laboratory
examination;[24] immediately after, the seized items were brought to the PNP Crime Laboratory for analysis and
examination. Police Inspector Karen S. Palacios (Police Inspector Palacios), Forensic Chemical Officer of the
PNP Crime Laboratory, conducted an examination on the specimens submitted, [25] and found them to be positive
for the presence of shabu.[26] Urine tests conducted on the petitioner and Villaflor also yielded a positive result.
[27]

97
 The petitioner presented a different version of the events and narrated that he and Villaflor were talking
at around 11:47 p.m.of September 13, 2003 when four men in civilian clothes barged into his house on D.
Gomez Street.[28] The door at that time was closed but not locked. These men ordered them to stand, and then
handcuffed them.[29] PO2 De Guzman frisked him and found P100.00 in his pocket. PO1 Tidang then conducted
a search on the room.[30] Afterwards, the police brought them to Precinct 1 where they were detained. At the
police station, the police asked them whether they had money to give in exchange for their liberty (i.e. pang-
areglo). The police initially demanded P20,000.00, but the petitioner and Villaflor answered that they did not
have this amount.[31] The petitioner likewise denied that he and Villaflor were using drugs when the police
entered his house.[32]

On cross examination, he testified that Villaflor was a friend of his sister, Julie; and that the latter
requested Villaflor to borrow money from their (his sisters and his) mother, whose house was located in a
nearby street.[33] The money was for the baptism of Julies daughter scheduled for the next day. [34] He did not
anymore accompany Villaflor to his mothers house because her mother was already asleep. [35] He declared that
he did not personally know the persons who arrested them prior to their arrest. [36] He also added that PO2 De
Guzman demanded P20,000.00 from him in exchange for his liberty.

The RTC, in its decision of February 8, 2006, convicted the petitioner and Villaflor of the crimes
charged, and sentenced them, as follows:[37]
1. In Criminal Case No. 03-3559, the accused GILBERT ZALAMEDA y SUMILE is
found GUILTY beyond reasonable doubt of the crime of violation of Section 11,
Article II, R.A. No. 9165 and is sentenced to suffer the indeterminate imprisonment
of TWELVE (12) YEARS, ONE (1) DAY as minimum to FOURTEEN (14) YEARS
as maximum pursuant to the Indeterminate Sentence Law, R.A. No. 4103, as
amended, and to pay a fine of P300,00.00.

2. In Criminal Case No. 03-3560, the accused GILBERT ZALAMEDA y SUMILE

and accused ALBERT VILLAFLOR y HUERTE are found GUILTY beyond
reasonable doubt of the crime of violation of Section 12, Article II, R.A. No. 9165
and are sentenced to suffer the indeterminate sentence of FOUR (4) MONTHS and
ONE (1) DAY as minimum, to TWO (2) YEARS, SEVEN (7) MONTHS, as
maximum, and to pay a fine of P10,000.00.

In both cases, the period during which the accused were held under detention shall be
considered in their favor pursuant to existing rules.
The dangerous drug subject matter of Criminal Case No. 03-3559 consisting of 0.03
gram of Methylamphetamine Hydrochloride or shabu and the pieces of drug
paraphernalia recovered from the accused and subject of Criminal Case No. 03-3560
are hereby transmitted to the Philippine Drug Enforcement Agency (PDEA) for its
appropriate disposition.
SO ORDERED.
The petitioner appealed to the CA and this appeal was docketed as CA-G.R. CR No. 30061. The CA
affirmed the RTC decision in its decision of March 18, 2008.[38] The petitioner moved to reconsider this
decision, but the CA denied his motion in its resolution of July 15, 2008.[39]

98
 In the present petition,[40] petitioner alleges that the items confiscated from him were inadmissible, and
that the prosecution failed to prove the existence of the illegal drug.

For the State, the Office of the Solicitor General (OSG) counters with the argument that the testimonies
of PO2 De Guzman and PO2 De Guia were straightforward and consistent on material points. [41] In addition, the
warrantless arrest conducted by the police was valid as the petitioner and Villaflor were caught sniffing shabu.
Since the arrest was lawful, the search made incidental to the arrest of the two accused was also lawful.[42]

The OSG further argues that the prosecution was able to show all the elements of the crimes charged.
[43]
The police also complied with the procedure in the custody and disposition of seized drugs under Section 21
of R.A. No. 9165 and its Implementing Rules.[44]

Finally, the OSG contends that the petitioners bare denial constitutes self-serving negative evidence
which cannot prevail over the categorical and positive testimony of the prosecution witnesses.[45]

We DENY the petition for lack of merit. The records of the case records support the conclusion that a
lawful arrest, search and seizure took place, and that the prosecution fully discharged its burden of
establishing all the elements necessary for conviction for the crimes charged beyond reasonable doubt.[46]

The prosecution duly established

the elements of the crimes charged

Illegal possession of dangerous drugs under Section 11 of R.A. No. 9165 carries the following elements:
(1) possession by the accused of an item or object identified to be a prohibited drug; (2) the possession is not
authorized by law; and (3) the free and conscious possession of the drug by the accused. [47] On the other hand,
the elements of illegal possession of equipment, instrument, apparatus and other paraphernalia for dangerous
drugs under Section 12 are: (1) possession or control by the accused of any equipment, apparatus or other
paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting, or introducing any
dangerous drug into the body; and (2) such possession is not authorized by law. The evidence for the
prosecution showed the presence of all these elements.

PO2 De Guzman, in his testimony of January 28, 2004, narrated the circumstances that led them to go to
the house of the petitioner;[48] how he saw the petitioner and Villaflor in the act of sniffing smoke; [49] and how
they arrested and searched the petitioner and seized evidence they discovered in plain view.[50]

PO2 De Guzman duly and positively identified the petitioner as the person he saw sniffing shabu with
Villaflor, and as the same person from whose right pocket he recovered a rectangular plastic sachet containing
white crystalline substances. He also narrated how the police inadvertently found various drug apparatus and
paraphernalia scattered on top of the petitioners bed. Per Report No. D-1142-03S of Police Inspector Palacios,
the plastic sachet recovered from the petitioner was examined and found to contain 0.03 gram of
methylamphetamine hydrochloride, a prohibited drug. The two aluminum foil strips and three unsealed
transparent plastic sachets recovered on top of the petitioners bed also tested positive for the presence of shabu.
Thus, the petitioner knowingly possessed shabu a prohibited drug and had under his control various drug
paraphernalia without legal authority to do so, all in violation of Sections 11 and 12 of R.A. No. 9165.

PO2 De Guzmans testimony also presented a complete picture of the police operation from the time the
desk officer received a tip regarding an ongoing pot session at the petitioners house on D. Gomez Street; to the
time the police went there and arrested the petitioner and Villaflor; until they returned to the police station and
99
marked the confiscated items. PO2 De Guia corroborated PO2 De Guzmans testimony on all material
points. The defense did not contest the admissibility of the seized items as evidence during
trial. Significantly, the petitioner failed to produce convincing proof that the prosecution witnesses had any
malicious or ulterior motive when they testified, or that the evidence submitted by the prosecution had been
tampered with.[51]

PO2 De Guzman testified in a spontaneous, straightforward and categorical manner, proving all the
elements of the crimes charged; he never wavered despite the grueling cross-examination by the defense
counsel.

The Petitioners Defenses

a. The Legality of the Petitioners Arrest

The petitioner alleges that since the warrantless arrest conducted by the police was illegal, the items
seized from him as a result of said arrest were inadmissible.

This argument totally lacks merit.

We stress at the outset that the petitioner failed to question the legality of his warrantless arrest. The
established rule is that an accused may be estopped from assailing the legality of his arrest if he failed to move
for the quashing of the Information against him before his arraignment. Any objection involving the arrest or the
procedure in the courts acquisition of jurisdiction over the person of an accused must be made before he enters
his plea; otherwise the objection is deemed waived.[52]
In any event, we carefully examined the records and now hold that the warrantless arrest conducted on
the petitioner was valid. Section 5, Rule 113 of the Rules on Criminal Procedure lists the situations when a
person may be arrested without a warrant, thus:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may,
without a warrant, arrest a person:
a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;
b) When an offense has just been committed, and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it; and
c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily confined while his
case is pending, or has escaped while being transferred from one confinement to another.

Paragraph (a) of Section 5 is commonly known as an in flagrante delicto arrest. For a warrantless arrest
of an accused caught in flagrante delicto to be valid, two requisites must concur: (1) the person to be arrested
must execute an overt act indicating that he has just committed, is actually committing, or is attempting to
commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.[53]

After carefully evaluating the evidence in its totality, we hold that the prosecution successfully
established that the petitioner was arrested in flagrante delicto.

We emphasize that the series of events that led the police to the petitioners house and to his arrest were
triggered by a tip from a concerned citizen that a pot session was in progress at the petitioners house located
on D. Gomez Street. Under the circumstances, the police did not have enough time to secure a search warrant
100
considering the time element involved in the process (i.e., a pot session may not be for an extended period of
time and it was then 5:15 a.m.). In view of the urgency, SPO4 Orbeta immediately dispatched his men to
proceed to the identified place 2725 D. Gomez Street to verify the report. At the place, the responding police
officers verified from a slightly opened door and saw the petitioner and Villaflor sniffing smoke to use the
words of PO2 De Guzman, or sumisinghot ng shabu as PO2 De Guia put it. There was therefore sufficient
probable cause for the police officers to believe that the petitioner and Villaflor were then and there
committing a crime. As it turned out, the petitioner indeed possessed a prohibited drug and, together with
Villaflor, was even using a prohibited drug and likewise illegally possessed drug paraphernalia, contrary to
law. When an accused is caught in flagrante delicto, the police officers are not only authorized but are duty-
bound to arrest him even without a warrant.

In the course of the arrest and in accordance with police procedures, the petitioner and Villaflor were
frisked, which search yielded the prohibited drug in the petitioners possession. The police, aside from seeing
Villaflor throw away a tooter, also saw various drug paraphernalia scattered on top of the petitioners bed. These
circumstances were sufficient to justify the warrantless search and seizure that yielded one (1) heat-sealed
plastic sachet of shabu. In this regard, Section 13, Rule 126 of the Rules of Court states:

Section 13. Search Incident to Lawful Arrest. A person lawfully arrested may be searched
for dangerous weapons or anything which may have been used or constitute proof in the
commission of an offense without a search warrant.

The seizure of the various drug paraphernalia is likewise beyond question. Under the plain view
doctrine, objects falling in the plain view" of an officer who has a right to be in the position to have that view
are subject to seizure and may be presented as evidence. This doctrine applies when the following requisites
concur: (a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in
a position from which he can view a particular area; (b) the discovery of the evidence in plain view is
inadvertent; and (c) it is immediately apparent to the officer that the item he observes may be evidence of a
crime, contraband or otherwise subject to seizure.[54]

All the foregoing requirements for a lawful search and seizure are present in this case. The police
officers had prior justification to be at the petitioners place as they were dispatched by their desk officer; they
arrested the petitioner and Villaflor as they had reason to believe that they were illegally using and possessing a
prohibited drug and drug paraphernalia. The search of the petitioner incident to his arrest yielded the confiscated
crystalline substance which later proved to be shabu. In the course of their lawful intrusion, they inadvertently
saw the various drug paraphernalia scattered on the bed. As these items were plainly visible, the police officers
were justified in seizing them.

The petitioner also harps on the fact that the police did not conduct a prior surveillance to verify the
tipped information. We emphasize that the tip has reference to an ongoing pot session an activity that does not
usually last for an extended period. We have held that when time is of the essence, the police may dispense with
the need for prior surveillance.[55] Simply stated, a prior surveillance is not necessary where the police
operatives are pressed for time to capture a suspected offender, as in this case. Thus, the absence of a
surveillance did not undermine the validity of the petitioners arrest.

b. Denial and Extortion

The petitioner denied that he and Villaflor were caught sniffing shabu, and maintained that they were
just talking to each other when the police arrived at his house at 11:47 p.m. of September 13, 2003. According
to the petitioner, Villaflor was in his house because he (Villafor) had been requested by Julie (the petitioners
101
own sister) to borrow money from their mother, Milagros, who lives in a nearby street. The money was for the
baptism of Julies daughter, scheduled for the next day.[56] The petitioner maintained that he did not bring
Villaflor to Milagros house as soon as he (Villaflor) arrived in the evening of September 13, 2003because it was
already late and Milagros was already asleep. [57] He maintained that he and Villaflor were arrested and detained
on September 13, 2003 and not on September 14, 2003.[58]

As the lower courts did, we find the petitioners story unworthy of belief.

We find the petitioners claim that he was arrested and detained in the evening of September 13, 2003 to
be self-serving and uncorroborated by any separate competent evidence. The petitioner, in fact, admitted that he
has no proof of such detention in his testimony of March 31, 2004.[59] The justification that the petitioner offered
for Villaflors presence at his place, in the absence of any corroborating evidence, is likewise
questionable. Allegedly, Villaflor was asked by Julie to borrow from Milagros money to be used in a baptism to
be held on the following day. No reason exists in the records explaining why Villaflor would proceed to the
petitioners house and stay there, given the urgency of his task and given that, by the petitioners own admission,
Milagros was expecting Villaflor that night. The questionable status of this basic component of the denial, to our
mind, renders the whole denial itself questionable. The latin maxim falsus in unus, falsus in omnibus[60] best
explains our reason.
The petitioners denial must likewise fail in light of the positive identification and declarations made by
the prosecution witnesses. As we stated earlier, these witnesses testified in a straightforward and categorical
manner regarding the identities of the malefactors. They did not waver despite the defense counsels rigid
questioning.

Courts generally view the defense of denial with disfavor due to the facility with which an accused can concoct
it to suit his or her defense. As evidence that is both negative and self-serving, this defense cannot attain more
credibility than the testimonies of prosecution witnesses who testify clearly, providing thereby positive evidence
on the various aspects of the crime committed. One such positive evidence is the result of the laboratory
examination conducted by the PNP Crime Laboratory on the various drug and drug paraphernalia recovered
from the petitioner and Villaflor which revealed that the following confiscated items tested positive for the
presence of shabu: (a) one heat-sealed transparent plastic sachet with marking GSZ containing 0.03 gram of
white crystalline substance; (b) two aluminum foil strips both with markings AHV, each containing white
crystalline substance; and (c) three unsealed transparent plastic sachets all with markings RSG each containing
white crystalline substance. In addition, the drug tests conducted on the petitioner and Villaflor both
yielded positive results.

Petitioners claim of extortion is similarly untenable. An allegation of frame-up and extortion by police officers
is a common and standard defense in most dangerous drug cases. It is viewed by this Court with disfavor, for it
can be easily concocted. To substantiate such a defense, the evidence must be clear and convincing. [61] In the
present case, the petitioner was unable to support his allegation of extortion with any other evidence. The
petitioner also admitted that he did not know the policemen previous to the arrest, hence negating any improper
motive on the part of the police. Such lack of dubious motive coupled with the presumption of regularity in the
performance of official duty, as well as the findings of the trial court on the credibility of prosecution witnesses,
should prevail over the petitioners self-serving and uncorroborated extortion claim. It is also worth noting that
the petitioner has not filed a single complaint against the police officers who allegedly attempted to extort
money from him.

c. Non-presentation of the Informant

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 The petitioner argues that the informant was never presented in court to corroborate the testimonies of
the prosecution witnesses.

We do not find this argument convincing.

The settled rule is that the presentation of an informant in an illegal drugs case is not essential for
conviction nor is it indispensable for a successful prosecution because his testimony would be merely
corroborative and cumulative.[62] Moreover, informants are usually not presented in court because of the need to
hide their identities and preserve their invaluable service to the police.[63] Thus, we held in People v. Boco:[64]

Under the circumstances, we do not find any necessity for additional corroborating
testimony, particularly that of the confidential informant. Intelligence agents, due to the nature
of their work, are often not called to testify in court so as not to reveal their identities
publicly. Once known, they could no longer be used again and, worse, may be the object of
revenge by the criminals they implicate. The prevailing doctrine is that their testimonies are not
essential for conviction, nor are they indispensable to a successful prosecution. With the
testimonies of the arresting officers, they would be, after all, merely corroborative and
cumulative.

d. The Integrity and Evidentiary Value of the

Examined and Presented Seized Items

The petitioner alleges that the prosecution failed to establish the evidences chain of custody because the
police operatives failed to strictly comply with Section 21(1) of R.A. No. 9165. He adds that the police did not
immediately mark, photograph and inventory the drugs and drug paraphernalia at the place where they were
seized.

We disagree.

The chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to
support a finding that the matter in question is what the proponent claims it to be.[65]

Contrary to what the petitioner wants to portray, the chain of custody of the seized prohibited drug was
shown not to have been broken. After the seizure of the rectangular plastic sachet containing white crystalline
substance from the petitioners possession and of the various drug paraphernalia on top of the petitioners bed, the
police immediately brought the petitioner and Villaflor to the police station, together with the seized items. PO2
De Guzman himself brought these items to the police station and marked them. The plastic sachet containing
white crystalline substance was marked GSZ [66] (Exh. F); the improvised tooter aluminum foil strips and
aluminum foil with traces of methylamphetamine hydrochloride were marked AHV [67] (Exh. G and H); the three
pieces of unsealed transparent plastic sachet were marked RSG [68] (Exh. I, I-1, and I-2); the disposable lighter
was marked RSG (Exh. J); the stainless pair of scissors was marked RSG (Exh. K); the transparent plastic sachet
containing three aluminum foil strips was marked RSG (Exh. L); and the Monsieur bag was marked RSG (Exh.
M). These confiscated items were immediately turned over to SPO4 Mangulabnan, who in turn, forwarded them
to the PNP Crime Laboratory, Southern Police District for examination to determine the presence of dangerous
drugs. After a qualitative examination conducted on the specimens, Forensic Chemist Palacios concluded that
Exhibits F, G, H, I, I-1, and I-2 tested positive for the presence of methylamphetamine hydrochloride. [69] When
the prosecution presented these marked specimens in court, PO2 De Guzman positively identified them to be
the same items he seized from the petitioner and which he later marked at the police station, from where the
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seized items were turned over to the laboratory for examination based on a duly prepared request. [70] We quote
the pertinent portions of the records:

xxx

PROSECUTOR ALEX BAGAOISAN:

Q: Now Mr. Witness, you mentioned earlier that when you frisked accused Zalameda,
you were able to recover from his possession a sachet containing white crystalline
substance?

PO2 RENATO DE GUZMAN:

A: Yes, sir.

Q: If that sachet containing white crystalline substance will be shown to you, will you be able to
identify the same?

A: Yes, sir.

Q: I am showing to you, Mr. Witness, a sachet, which contains white crystalline substance.
Will you please go over the same and tell us what relation does this have to the
sachet containing white crystalline substance, which you said was recovered from
accused Zalameda?
A: This is the plastic sachet that I have recovered from the possession of accused Zalameda,
sir.

Q: Why are you certain that this is the same sachet containing white crystalline substance,
which you recovered from accused Zalameda?

A: I put markings, sir.

Q: What markings?

A: I placed GSZ.

Q: Where did you place this marking?

A: Inside the headquarters, sir.

Q: Could you tell us what does this marking GSZ stand for?

A: Gilbert Sumile Zalameda, sir.

Q: May I request, Your Honor, that this white crystalline substance contained in a plastic sachet
with markings GSZ be marked as Exhibit F, Your Honor. Now, you mentioned also that
you were able to recover drug paraphernalia from the bed.

A: Yes, sir.

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 Q: You mentioned of an improvised tooter aluminum foil?

A: Yes, sir.

Q: I have here several pieces of evidence. Will you please step down and identify the
improvised tooter aluminum foil you have mentioned?

A: This one, sir.

Q: And why are you certain that this is the same improvised tooter aluminum foil that you
recovered from the accused?

A: I placed markings sir.

Q: What is the markings that you placed?

A: AHV, sir.

Q: What does AHV stand for?

A: Albert Huerte Villaflor, sir.

Q: May I request, Your Honor that this improvised tooter aluminum foil identified by the
witnesses be marked as exhibit G with markings AHV. Now, you also mentioned of one
aluminum foil, which was made as a tray, could you identify that particular object
evidence that you have mentioned?

A: Yes, sir, this is the one.

Q: And why are you certain that this is the same aluminum foil, which was used as a tray?

A: I also placed markings, sir.

Q: What markings did you place in this particular object evidence?

A: AHV, sir.

Q: May I request, Your Honor, that this aluminum foil identified by the witness with markings
AHV be marked as exhibit H. You mentioned of three pieces plastic sachets
containing white crystalline substance. Now could you point to us these sachets that
you have mentioned?

A: Yes, sir. These are the plastic sachets.

Q: And why are you certain that these are the same sachets which you said contained traces
of shabu?

A: I placed the markings, sir.

Q: What markings did you place?

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 A: My initial, sir, RSG.

Q: May I request, Your Honor, that these three pieces of plastic sachets containing traces of
shabu be marked as exhibit I, I-1, and I-2. Now, you also mentioned of disposable
lighter. Will you please identify the disposable lighter that you have mentioned?

A: Yes, sir, this is the one.

Q: May I request, Your Honor, that the disposable lighter identified by the witness with markings
RSG be marked as Exhibit J. How about the scissors, could you identify the scissors
that you have recovered?

A: Yes, sir. This is the one.

Q: The witness identified stainless scissors, which we request to be marked as Exhibit K.

Aside from these object evidence, what other object evidence did you find on the
bed?

A: I also found three rolled aluminum foil, sir.

Q: Will you be able to identify those three aluminum foils that you have mentioned?

A: Yes, sir.

Q: Please point them out to us.

A: Here, sir.

Q: May I request, Your Honor, that these three rolled aluminum foils with markings RS be
marked as Exhibit L. Now, why are the markings different, there is the marking RSG,
there is a marking AHV? [sic]

A: For identification, sir.

Q: You also mentioned a bag. Will you please identify that bag?

A: Here, sir.

Q: We request, Your Honor, that the bag identified by the witness be marked as Exhibit M. Now,
you also mentioned that you brought Zalameda to the headquarters.

A: Yes, sir.

Q: How about accused Albert Villaflor?

A: We also brought him to the headquarter[s].

Q: What did you do at the precinct?

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 A: Our desk officer prepared the necessary paper to turn over the two suspects to the investigator.

Q: So, did you come to know what happened after that?

A: The investigator prepared a request addressed to the crime lab. for laboratory examination of
the confiscated evidence, sir.

Q: How about the accused, what did you do with them after the investigation?

A: The investigator also made a request for drug test examination addressed to the Crime
Laboratory.

Q: And did you come to know what was the result of the examination conducted?

A: Yes, sir.

Q: And what was the result?

A: The result is positive, sir.

Q: What do you mean positive?

A: Positive, sir, for methylamphetamine hydrochloride or shabu, sir.

Q: How about the drug test?

A: The accused also gave positive result.

x x x[71] [Emphasis ours]

Thus, the prosecution established the crucial link in the chain of custody of the seized items from the
time they were first discovered until they were brought for examination. Besides, as earlier stated, the petitioner
did not contest the admissibility of the seized items during trial. The integrity and the evidentiary value of
the drug seized from the petitioner were therefore duly proven not to have been compromised.

We also reject the petitioners claim that the non-presentation of the forensic chemist was fatal to the
prosecutions case. The petitioner never raised in issue before the trial court the non-presentation of Police
Inspector Palacios. In fact, the defense during the pre-trial agreed to dispense with her testimony. [72] It must
also be stressed that Police Inspector Palacios is a public officer, and her report carries the presumption of
regularity. Besides, Section 44, Rule 130 of the Revised Rules of Court provides that entries in official records
made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of
a duty specifically enjoined by law, are prima facie evidence of the facts therein stated.[73] Police
InspectorPalacios findings that Exhibits F, G, H, I, I-1, and I-2 were found positive for the presence
of shabu are, therefore, conclusive in the absence of evidence proving the contrary.

Jurisprudence teems with pronouncements that failure to strictly comply with Section 21(1), Article II of
R.A. No. 9165[74]does not necessarily render an accuseds arrest illegal or the items seized or confiscated from
him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of
the seized items, as these would be utilized in the determination of the guilt or innocence of the accused. [75] In
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the present case, we see substantial compliance by the police with the required procedure on the custody and
control of the confiscated items, thus showing that the integrity of the seized evidence was not
compromised. We refer particularly to the succession of events established by evidence, to the overall handling
of the seized items by specified individuals, to the test results obtained, under a situation where no objection to
admissibility was ever raised by the defense. All these, to the unprejudiced mind, show that the evidence seized
were the same evidence tested and subsequently identified and testified to in court. In People v. Del Monte,
[76]
we explained:

We would like to add that non-compliance with Section 21 of said law, particularly the
making of the inventory and the photographing of the drugs confiscated and/or seized, will not
render the drugs inadmissible in evidence. Under Section 3 of Rule 128 of the Rules of Court,
evidence is admissible when it is relevant to the issue and is not excluded by the law or these
rules. For evidence to be inadmissible, there should be a law or rule which forbids its
reception. If there is no such law or rule, the evidence must be admitted subject only to the
evidentiary weight that will accorded it by the courts. x x x

We do not find any provision or statement in said law or in any rule that will bring about
the non-admissibility of the confiscated and/or seized drugs due to non-compliance with Section
21 of Republic Act No. 9165. The issue therefore, if there is non-compliance with said section, is
not of admissibility, but of weight evidentiary merit or probative value to be given the
evidence. The weight to be given by the courts on said evidence depends on the circumstances
obtaining in each case.

The Proper Penalties

The petitioner was caught in possession of 0.03 gram of shabu or methamphetamine hydrochloride. The
illegal possession of dangerous drugs is punished under Section 11, paragraph 2(3), Article II of R.A. No. 9165,
which provides:
(3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine
ranging from Three hundred thousand pesos (P300,000.00) to Four hundred thousand pesos
(P400,000.00), if the quantities of dangerous drugs are less than five (5) grams of x x x
methamphetamine hydrochloride or shabu x x x

We sustain the penalty imposed by the RTC and affirmed by the CA in Criminal Case No. 03-3559, as it
is within the range provided for by law.

Meanwhile, Section 12, Article II of R.A. No. 9165 provides that the penalty of imprisonment ranging
from six (6) months and one (1) day to four (4) years and a fine ranging from Ten thousand pesos (P10,000.00)
to Fifty thousand pesos (P50,000.00) shall be imposed upon any person, who unless authorized by law, shall
possess or have under his/her control any equipment, instrument, apparatus and any other paraphernalia fit or
intended for smoking, consuming, administering, injecting, ingesting, or introducing any dangerous drug into
the body.

The courts a quo sentenced the petitioner to suffer the indeterminate penalty of four months and one day,
as minimum, to two years and seven months, as maximum in Criminal Case No. 03-3560. Pursuant to Section
12 of R.A. No. 9165, we increase the minimum to six (6) months and one (1) day imprisonment.
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 WHEREFORE, premises considered, the Court of Appeals decision and resolution dated March 18,
2008 and July 15, 2008, respectively, in CA-G.R. CR No. 30061 are AFFIRMED with
the MODIFICATION that in Criminal Case No. 03-3560, petitioner Gilbert Zalameda is SENTENCED to
suffer the indeterminate penalty of six (6) months and one (1) day, as minimum, to two (2) years and seven (7)
months, as maximum.

The CA decision finding the petitioner guilty of violation of Section 11 of R.A. No. 9165 in Criminal
Case No. 03-3559 is AFFIRMED in all respects.

SO ORDERED.

ARTURO D. BRION
Associate Justice
WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CONCHITA CARPIO-MORALES MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Courts Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is
hereby certified that the conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.

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 REYNATO S. PUNO
Chief Justice

110