SECOND DIVISION

PEOPLE OF THE PHILIPPINES, G.R. No. 172357

Appellee,

- versus - Present:

CARPIO, J., Chairperson,

MARCELO BUSTAMANTE y BRION,
ZAPANTA, NEIL BALUYOT y DEL CASTILLO,
TABISORA, RICHARD DELOS ABAD, and
TRINO y SARCILLA, HERMINIO PEREZ, JJ.
JOSE y MONSON, EDWIN
SORIANO y DELA CRUZ and
ELMER SALVADOR y JAVALE, Promulgated:
Appellants. March 19, 2010
x-------------------------------------------------------------------x

DECISION

DEL CASTILLO, J.:

The police authorities are the ones tasked to promote and maintain peace and order in our
country. Thus, it becomes doubly deplorable when they themselves commit the criminal
act. In this case, appellants insist on their innocence; they deny that they killed the
victim Romeleo Quintos on June 1, 1997 inside the detention cell of the Ninoy Aquino
International Airport (NAIA).But we are not persuaded. We took a second hard look at
the evidence presented and we hold that both the trial court and the appellate court
correctly found that the prosecution proved beyond reasonable doubt that the appellants
are guilty of murder.

This is an appeal from the July 19, 2005 Decision[1] of the Court of Appeals (CA) in CA-
G.R. CR-H.C. No. 00665 which affirmed in toto the March 17, 2000 Decision[2] of the
Regional Trial Court (RTC) of Pasay City, Branch 109, finding the appellants guilty
beyond reasonable doubt of the crime of murder. Also assailed is the March 6,
2006 Resolution[3] of the CA denying the separate motions for reconsideration filed by
the appellants.

Factual Antecedents

On May 22, 1998, two Informations were filed against the herein appellants,
together with Carlito Lingat and Mutalib Abdulajid, charging them with the crimes of
Murder and Arbitrary Detention. The Informations read:

Crim. Case No. 98-0547 (for Murder):

The undersigned Ombudsman Investigator, Office of the Deputy Ombudsman for the
Military, hereby accuses NEIL BALUYOT, RICHARD DELOS TRINO, HERMINIO
JOSE, EDWIN SORIANO, MARCELO BUSTAMANTE, CARLITO LINGAT,
MUTALIB ABDULAJID, AND ELMER SALVADOR of the crime of MURDER
defined and penalized under Article 248 of the Revised Penal Code, committed as
follows:

That in the early morning of June 01, 1997, between 2:00 to 3:00 oclock [in the
morning], or sometime prior or subsequent thereto, in Pasay City, Philippines, and within
the jurisdiction of this Honorable Court, the accused NEIL BALUYOT, RICHARD
DELOS TRINO, HERMINIO JOSE, EDWIN SORIANO, MARCELO
BUSTAMANTE, and CARLITO LINGAT, all public officers, being then members of
the Philippine National Police (PNP) Force, assigned [at] the Ninoy Aquino International
Airport (NAIA), and accused ELMER SALVADOR and MUTALIB ABDULAJID,
security guards, also assigned at the NAIA, conspiring and confederating with one
another, with intent to kill and taking advantage of their superior strength, did then and
there willfully, unlawfully and feloniously tie a plastic nylon cord around the neck of
one Romeleo A. Quintos, and hang him at the end portion of the detention cell, which
caused the instantaneous death of said Romeleo A. Quintos to the damage and prejudice
of the heirs of said victim.

CONTRARY TO LAW.[4]
Criminal Case No. 98-0548 (for Arbitrary Detention)

The undersigned Ombudsman Investigator, Office of the Ombudsman for the

Military, hereby accuses EDWIN D. SORIANO, MARCELO Z. BUSTAMANTE,
HERMINIO M. JOSE, CARLITO D. LINGAT and NEIL T. BALUYOT of the crime
of ARBITRARY DETENTION, defined and penalized under Article 124 of the Revised
Penal Code, committed as follows:
 That on or about June 01, 1997, in Pasay City, Metro Manila, Philippines, and
within the jurisdiction of this Honorable Court, the abovenamed accused, all public
officers, being then members of the Philippine National Police Force assigned at
the Ninoy Aquino International Airport, conspiring and confederating with each other,
committing the offense in relation to their office, and without any legal ground, did then
and there willfully, unlawfully, and feloniously detain and
restrain Romeleo A. Quintos of his personal liberty, without his consent and against his
will since midnight of May 31, 1997 until around 3:15 a.m. of June 01, 1997 when
said Romeleo A. Quintos was found dead inside the detention cell.

CONTRARY TO LAW.[5]

Neil Baluyot (Baluyot), Richard Delos Trino (Delos Trino), Herminio Jose (Jose),
Edwin Soriano (Soriano), Marcelo Bustamante (Bustamante), Carlito Lingat (Lingat) and
Elmer Salvador (Salvador), were arraigned on July 14, 1998 where they all entered a plea
of not guilty.[6] Mutalib Abdulajid (Abdulajid) remains at large.

The records show that at around midnight of May 31,

1997, Romeleo Quintos (Romeleo) and his friend, Ancirell Sales (Ancirell), went to the
NAIA to fetch Rolando Quintos(Rolando), brother of Romeleo, who was arriving from
the United States. At the arrival extension area of the NAIA, Ancirell alighted from the
car driven by Romeleo to check whether Rolando had already arrived. Upon his return,
he was surprised to see Romeleo arguing with a man in uniform later identified as
Soriano who arrested Romeleo for expired license.

Romeleo vehemently denied the charge causing a heated

altercation. Outraged, Romeleo challenged Soriano to a gun duel. Thinking
that Romeleo was a military man, Soriano called for reinforcement. In a few
minutes, Lingat and Bustamante arrived followed by Jose. They asked Romeleo to hand
over his license but the request went unheeded. Thus, Jose seized the ignition key of the
vehicle and ordered Romeleo to alight from the vehicle but the latter refused. Thereupon,
Soriano, Lingat, Bustamante and Jose pulled Romeleo out of the vehicle and brought him
to the Intelligence and Investigation Division of the NAIA (IID-NAIA) supposedly for
questioning. At the IID-NAIA, it was decided that Romeleo be brought to the Pasay
General Hospital for examination where he was found positive for alcoholic
breath. Thereafter, Romeleo was brought back to the IID-NAIA for further investigation.
 Romeleo was shoved into a cell already occupied by prosecution witness
Noel Gabornes (Gabornes), who had earlier been arrested for being an unauthorized
porter. Professing his innocence, Romeleo cursed and shouted at Baluyot, Delos Trino,
Jose, Soriano, Bustamante, Lingat, Salvador and Abdulajid to release him as he was only
at the airport to fetch his brother. Jose ordered him to stop
but Romeleo persisted. Infuriated, Jose entered the cell and kicked the victim hard on the
stomach. Salvador also entered the cell followed by Baluyot while Delos Trino stayed
near the door. Romeleo was still reeling from the blow delivered by Jose
when Baluyot boxed him in the abdomen. Salvador also punched him at the solar plexus
causing the victim to writhe in pain at a corner of the cubicle. To avoid being
hit, Gabornes went outside the cell.

Gasping for breath, Romeleo sought succor from Gabornes but the latter declined,
afraid to get involved. After a while, Gabornes asked Jose if he could go home but the
latter did not answer. Instead, Jose directed Salvador to transfer Gabornes to an adjacent
cell. Thereafter, Gabornes overheard Jose
saying tapusin na natin ito. Intrigued, Gabornes peered through the iron grill to see what
was happening. From his vantage point, he saw Baluyot handing a piece of grayish
plastic cord to Salvador. Thereafter, he heard Romeleo coughing and gasping for breath
as if he was being strangled. Peering closely, the witness
saw Salvador and Abdulajid twisting the cord with a piece of
wood, garrote style. Romeleos hand could be seen trying to reach for the piece of wood
in a backward angle in a vain effort to stop the twisting. After a couple of
minutes, Gabornes saw a body being carried out of the cell. Delos Trino then
approached Gabornesand said: Kung anong nakita mo, nakita mo lang.
Kung anong narinig mo, narinig mo lang. Sana huwag mo ng ikalat ito. Fearing for his
life, Gabornes promised not to tell anybody about the incident. Thereafter, he was
released.

At about that time, the victims brother, Rolando, had already arrived from
the United States. Informed by Ancirell of the detention of his brother Romeleo, Rolando
set out for home to deposit his luggage but immediately went back to the airport
with Ancirell and a cousin, Rabadon Gavino (Gavino), to check on Romeleo. At
around 3:00 a.m. of the same day, they arrived at the IID-NAIA office and were met in
the hallway by Bustamante who told them that Romeleo was in the detention cell. Asking
for directions, the group was ushered towards a dark cell. When the lights were turned on,
they were horrified to see the lifeless body of Romeleo hanging with a cord around his
neck with the other end tied around the iron grills of the cell window.

Rolando, Ancirell and Gavino, along with Soriano and Lingat, immediately
brought the victim to the San Juan De Dios Hospital aboard a police car. Rolando and his
companions carried the victim to the emergency room. Soriano and Lingat remained in
the vehicle but returned to the NAIA after a while. Romeleo was declared dead on arrival
by the attending physician. Gabornes later learned of the victims identity through the
newspapers.

Baluyot, Delos Trino, Jose, Soriano, Bustamante, and Lingat, were all members of the
Philippine National Police (PNP) assigned with the IID-NAIA,
while Salvador and Abdulajid were security guards of the Lanting Security Agency
assigned at NAIA.

Ruling of the Regional Trial Court

After due proceedings, the trial court promulgated its Decision dated March 17, 2000,
the decretal portion reads:

In view of all the foregoing, the Court finds the accused Neil Baluyot y Tabisora,
Richard delos Trino y Sarcilla, Herminio Jose y Mozon, Edwin Soriano y dela Cruz,
Marcelo Bustamante y Zapanta, CarlitoLingat y Salvador, Elmer Salvador y Javale,
and Mutalib Abdulajid guilty beyond reasonable doubt of MURDER in Criminal Case
No. 98-0457. It appearing on evidence that the accused voluntarily surrendered at the
Criminal Investigation and Detection Group as evidenced by Exh. 21, the Court credits
them with the mitigating circumstances of voluntary surrender and hereby sentences each
of them to RECLUSION PERPETUA and for each accused to pay the heirs of the victim
indemnity in the amount of P50,000.00.

In Criminal Case No. 98-0548 for Arbitrary Detention, it appearing from the evidence
that the victim Romeleo Quintos was detained at the IID for three (3) hours and fifteen
(15) minutes, the same is punished or penalized under Art. 124, paragraph 1 of the
Revised Penal Code which is herein below reproduced:

ART. 124. Arbitrary Detention. Any public officer or employee who,

without legal grounds, detains a person, shall suffer:
 1. The penalty of arresto mayor in its maximum period
to prision correctional in its minimum period if the detention has not
exceeded three days;

xxxx

hence the case is not within the jurisdiction of this Court.

The OIC of this Court is hereby ordered to transmit the records of Criminal Case No. 98-
0548 for Arbitrary detention to the Metropolitan Trial Court.

The Petition for Bail filed by all the accused is hereby considered moot and academic.

Let an Alias Warrant of arrest be issued in so far as accused Mutalib Abdulajid is

concerned who remains at large.

SO ORDERED.[7]

Ruling of the Court of Appeals

The CA affirmed the Decision of the RTC in a Decision dated July 19, 2005, thus:

IN VIEW OF ALL THE FOREGOING, the appealed decision is hereby AFFIRMED

in toto. Costs de officio.

SO ORDERED.[8]

Aggrieved, appellants filed their respective Motions for Reconsideration. In the

meantime, Lingat died. On March 6, 2006, the CA denied the motions for
reconsideration.[9]
All the appellants, except Bustamante, filed notices of appeal. Bustamante filed an
Urgent Motion for Leave to Admit Second Motion for Reconsideration[10] but it was
denied by the CA in its Resolution[11] dated April 28, 2006. Thereafter, Bustamante filed
a Petition for Review on Certiorari but the same was treated as an appeal in the
Resolution[12] dated January 15, 2007.
 Issues

The issues raised are: (1) whether the uncorroborated testimony of the lone
eyewitness, Gabornes, is sufficient to produce a judgment of conviction; (2) whether
conspiracy was proven beyond reasonable doubt; and (3) whether appellants should be
held liable only for homicide, and not for murder.

Our Ruling

Upon careful consideration of the evidence presented by both the prosecution and the
defense, we are unable to consider the appellants appeal with favor.

The uncorroborated testimony of a single

witness, if credible, is enough to warrant
conviction.

We find that the CA did not err in affirming the Decision of the trial court convicting the
appellants of murder based on the testimony of Gabornes, the lone eyewitness. It is
settled jurisprudence that the testimony of a single witness, if credible, is enough to
warrant conviction. Both the trial court and the CA found Gabornes to be credible and
whose testimony is entitled to full faith. We find no cogent reason to depart from said
findings.

As borne out by the records, Gabornes positively identified and categorically pointed to
appellants as the ones who conspired with one another to kill Romeleo on June 1,
1997. He narrated the incident in a clear and convincing manner. He testified on the
degree of participation of each of the accused with regard to the killing of Romeleo inside
the IID-NAIA detention cell in such a manner that only an unbiased eyewitness could
narrate. Gabornes was not shown to have had any ill motives to testify falsely against the
appellants. As correctly observed by both the trial court and the CA, the fact
that Gabornes was previously arrested for being an unauthorized porter is not enough
reason for him to falsely accuse appellants of a very grave offense.
We also hold that the CA correctly disregarded the affidavit of recantation
of Gabornes dated February 21, 2005. In the said affidavit, Gabornes denied that he was
inside the detention cell of the NAIA on June 1, 1997. Instead, he claimed that he was
under the fly-over near the NAIA playing a card game. Consequently, he averred that
there is no truth to his testimony given before the trial court pointing to the appellants as
the perpetrators of the crime. We are not persuaded.

Our ruling in People v. Ballabare[13] is instructive:

It is absurd to disregard a testimony that has undergone trial and scrutiny by the court and
the parties simply because an affidavit withdrawing the testimony is subsequently
presented by the defense. In the first place, any recantation must be tested in a public trial
with sufficient opportunity given to the party adversely affected by it to cross-examine
the recanting witness. x x x

In the second place, to accept the new evidence uncritically would be to make a solemn
trial a mockery and place the investigation at the mercy of unscrupulous witnesses. For
even assuming that Tessie Asenitahad made a retraction, this circumstance alone does not
require the court to disregard her original testimony. A retraction does not necessarily
negate an earlier declaration. For this reason, courts look with disfavor upon retractions
because they can easily be obtained from witnesses usually through intimidation or for
monetary considerations. Hence, when confronted with a situation where a witness
recants his testimony, courts must not automatically exclude the original testimony solely
on the basis of the recantation. They should determine which testimony should be given
credence through a comparison of the original testimony and the new testimony,
applying the general rules of evidence. x x x [14]

As we have already discussed, Gabornes testimony given before the National

Bureau of Investigation (NBI) and the trial court was replete with details that only a
person who witnessed such gruesome crime could narrate. Even during cross-
examination, he remained steadfast in his account that the appellants were the ones who
killed Romeleo. Also, both the trial court and the appellate court had several
opportunities of taking a hard look at the records of the case considering the motions for
reconsideration filed by the appellants. Both the CA and the RTC found beyond
reasonable doubt that the appellants were indeed the authors of the crime.

The prosecution satisfactorily

established that appellants conspired
with each other in killing Romeleo.

We are not persuaded by the contention of the appellants that there was no
conspiracy considering that they were in different areas of the NAIA premises when the
crime took place. As correctly held by the CA:

At bar, appellants claimed that they were either at the NAIA parking lot or were
at the adjacent IID-NAIA office when the crime took place. These places, however, are
but a short distance away from the scene of the crime and one could travel to and from
these points in a little over a few seconds or minutes of leisure walking, as readily
admitted by appellants in their own version of the event. Verily, the possibility of
appellants to be at the scene of the crime at the time of its commission, is thus not
farfetched.[15]

Besides, it is not required for conspiracy to exist that there be an agreement for an
appreciable period prior to the occurrence. It is sufficient that at the time of the
commission of the offense, the accused had the same purpose and were united in its
execution. Direct proof of such agreement is not necessary. It may be deduced from the
mode and manner in which the offense was perpetrated, or inferred from the acts of the
accused which point to a joint purpose and design, concerted action and community of
interest.[16]

This community of design is present among the appellants as deduced from their
individual acts. The RTC observed thus:

The act of the accused Elmer Salvador, Neil Baluyot y Tabisora, and Richard
Delos Trino y Sarcilla of boxing the victim on the stomach and the act of
accused Herminio Jose who said tapusin na natin itotogether with the act of accused
Neil Baluyot of handing a tale or cord to Elmer Salvador who thereafter twisted the cord
which was around the neck of the victim with a piece of wood with the help of
accused Mutalib Abdulajid who up to the present remained at large, all acts of which
were done in the presence of all the accused namely: Neil Baluyot y Tabisora, Richard
Delos Trino y Sarcilla, Herminio Jose y Mozon, Edwin Soriano y dela Cruz, Marcelo
Bustamante y Zapanta, Carlito Lingat y Damaso and Elmer Salvador (including the
accused who is at large) clearly show that all accused conspired, confederated and helped
one another in murdering the victim with abuse of superior strength by strangling and
hanging the victim Romeleo Quintos causing him to die of asphyxia. In conspiracy, the
act of one is the act of all.
 xxxx

Likewise, the act of accused Carlito Lingat y Damaso and Edwin Soriano y Dela Cruz of
not coming to the hospital to give the medical clerk the name and circumstances of the
victim including the facts surrounding the victims death is very suspicious indeed and is
contrary to the SOP of officers who bring victims to the hospital. Also the failure of all
the accused to immediately report to the police investigator of Pasay City is quite
unusual. In the same manner the acts of accused Neil Baluyot y Tabisora, Herminio Jose
y Mozon and Richard Delos Trino y Sarcilla of leaving the IID office and cell which is
the scene of the crime and then going to Bian and to Atty. Augusto Jimenez is quite
unusual for persons who professed innocence.[17]

Moreover, the doctrine is well settled that conspiracy need not be proved by direct
evidence but may be proven through the series of acts done by each of the accused in
pursuance of their common unlawful purpose. For collective responsibility among the
accused to be established, it is sufficient that at the time of the aggression, all of them
acted in concert, each doing his part to fulfill their common design to kill the victim.[18]

The CA correctly observed that:

A fortiori, appellants should be held liable for the death

of Romeleo Quintos. Their sequential attack, one after another, revealed their unlawful
intent to kill the victim. Herminio Joses utterances of tapusin na natin ito only
strengthens the link that binds the acts of the appellants in their coordinated effort to
kill Romeleo. x x x[19]

The circumstance of abuse of superior

strength qualified the killing to murder.

There is likewise no merit to appellants contention that they should only be held liable for
homicide, and not for murder, because the qualifying circumstance of abuse of superior
strength was not specifically alleged in the Information.
Contrary to the assertion of the appellants, the Information specifically alleged that the
appellants were

x x x conspiring and confederating with one another, with intent to kill and taking
advantage of their superior strength, did then and there willfully, unlawfully and
feloniously tie a plastic nylon cord around the neck of one Romeleo A. Quintos, and hang
 him at the end portion of the detention cell, which caused the instantaneous death of
said Romeleo A. Quintos to the damage and prejudice of the heirs of said victim.

It has been satisfactorily established that Baluyot, Delos Trino, Jose, Soriano,
Bustamante, and Lingat, were all members of the PNP assigned with the IID-NAIA,
while Salvador and Mutalib were security guards of the Lanting Security Agency
assigned at NAIA. The eight of them acted in concert and definitely took advantage of
their superior strength in subduing and killing their lone victim who was unarmed. Thus,
all the appellants must be held liable for the crime of murder.

All told, appellants miserably failed to show convincing reasons to overturn the Decision
of both the trial court and the CA. In this case, the CA ascertained the factual findings of
the trial court to be supported by proof beyond reasonable doubt which led to the
conclusion that appellants acted in unison in killing Romeleo. It is worthy to stress that
findings of fact of the CA, especially if they affirm factual findings of the trial court, will
not be disturbed by this Court, unless these findings are not supported by evidence.[20]

The liabilities
of Carlito Lingat and Mutalib Abdulajid

It has not escaped our notice that Abdulajid was not arraigned and remains at large up to
this time. However, in the Decision of the trial court which was affirmed by the
CA, Abdulajid was likewise found guilty as charged. This is erroneous considering that
without his having been arraigned, the trial court did not acquire jurisdiction over his
person.

As regards Lingat, his death pending appeal and prior to the finality of conviction
extinguished his criminal and civil liabilities.[21] Moreover, the death of Lingat would
result in the dismissal of the criminal case against him.[22]

Damages

We note that both the trial court and the CA awarded the heirs of the victim only the
amount of P50,000.00 as civil indemnity. In line with prevailing jurisprudence,[23] we also
award the amount of P50,000.00 as moral damages. Further, we also award the amount
of P25,000.00 as exemplary damages pursuant to our ruling in People v.
Angeles[24] where we held that under Article 2230 of the Civil Code, exemplary
damages may be awarded in criminal cases when the crime was committed with
one or more aggravating circumstances, (in this case, abuse of superior strength).
This is intended to serve as deterrent to serious wrongdoings and as vindication of
undue sufferings and wanton invasion of the rights of an injured, or as a
punishment for those guilty of outrageous conduct. The imposition of exemplary
damages is also justified under Article 2229 of the Civil Code in order to set an
example for the public good. In addition, and in lieu of actual damages, we also
award temperate damages in the amount of P25,000.00.[25]

Likewise, we note that both the trial court and the CA overlooked the fact that during the
testimony of Clementina Quintos, the mother of the victim, sufficient evidence was
presented to show that the victim before his untimely death, was gainfully employed in a
private company with a monthly salary of P15,000.00.

Fiscal Barrera:

Q Would you describe Romeleo Quintos prior to his death?

A He was gainfully employed. He is an executive at IPC (International product
Corporation), Makati as operation officer.

xxxx

Q How much was your son Romeleo Quintos receiving as operation officer at IPC?
A P15,000.00, sir, monthly.

Q Do you have any evidence to show that he earn Five Thousand pesos [sic]
(P15,000.00) a month as project engineer?
A Yes, sir.

Fiscal Barrera:

May I request that the Certification dated January 22, 1999 issued by IPC be marked
as Exh. EEE; the name appearing thereat that Romeleo Quintos has been an employee of
IPC from January 8, 1997 up to June 1, 1997 with the position of operation officer with
monthly salary of P15,000.00 x x x be marked as Exh. EEE-1 and the signature of a
person who issued the certification be marked as Exh. EEE-2.[26]

The formula[27] for unearned income is as follows:

 Life Expectancy x [Gross Annual Income (GAI) less Living Expenses (50% GAI)]
Where Life Expectancy= 2/3 x (80 age of the deceased)

Article 2206 of the Civil Code provides:

Art. 2206. That amount of damages for death caused by a crime or quasi-delict shall be at
least Three Thousand Pesos, even though there may have been mitigating
circumstances. In addition:

(1) the defendant shall be liable for the loss of the earning capacity of the deceased, and
the indemnity shall be paid to the heirs of the latter, such indemnity shall in every case be
assessed and awarded by the court, unless the deceased on account of permanent physical
disability not caused by the accused, had no earning capacity at the time of his death;
xxxx

Hence, the testimony of the victims mother that Romeleo was earning P15,000.00 per
month is sufficient basis for an award of damages for loss of earning capacity.

It is well settled that the factors that should be taken into account in determining the
compensable amount of lost earnings are: (1) the number of years for which the victim
would otherwise have lived; (2) the rate of loss sustained by the heirs of the deceased.

The unearned income of Romeleo is computed as follows:

Unearned Income = 2/3 (80 30[28]) [(P15,000.00 x 12) (P15,000.00 x 12)]

= 2/3 (50) (P180,000.00 P90,000.00)
= 2/3 (50) (P90,000.00)
= 9,000,000.00/3
= P 3,000,000.00

WHEREFORE, the July 19, 2005 Decision of the Court of Appeals in CA-G.R. CR-
H.C. No. 00665 is MODIFIED. Appellants Neil Baluyot, Richard
Delos Trino, Herminio Jose, Edwin Soriano, Marcelo Bustamante, and Elmer Salvador,
are hereby found GUILTY beyond reasonable doubt of the crime of Murder and are
sentenced to suffer the penalty of reclusion perpetuaand to pay the heirs
of Romeleo Quintos the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral
damages, P25,000.00 as temperate damages, P25,000.00 as exemplary damages,
and P3,000,000.00 as lost income. In view of the death of Carlito Lingat pending appeal
and prior to the finality of his conviction, Criminal Case No. 98-0547
is DISMISSED and the appealed Decision is SET ASIDE insofar as Carlito Lingat is
concerned. Insofar as Mutalib Abdulajid is concerned, the March 17, 2000 Decision of
the Regional Trial Court of Pasay City, Branch 109 in Criminal Case No. 98-0547
is NULLIFIED for failure of the trial court to acquire jurisdiction over his
person. Consequently, the appealed July 19, 2005 Decision of the Court of Appeals in
CA-G.R. CR-H.C. No. 00665 is likewise SET ASIDE insofar as Mutalib Abdulajid is
concerned.

SO ORDERED.

SECOND DIVISION

[G.R. Nos. 153524-25. January 31, 2005]

RODOLFO SORIA and EDIMAR BISTA, petitioners, vs. HON. ANIANO

DESIERTO in his capacity as Head of the Office of the
Ombudsman, HON. ORLANDO C. CASIMIRO in his capacity as
Deputy Ombudsman for Military, P/INS. JEFFREY T. GOROSPE,
SPO2 ROLANDO G. REGACHO, SPO1 ALFREDO B. ALVIAR, JR.,
PO3 JAIME D. LAZARO, PO2 FLORANTE B. CARDENAS, PO1
JOSEPH A. BENAZA, SPO1 FRANKLIN D. CABAYA and SPO4
PEDRO PAREL, respondents.

DECISION
CHICO-NAZARIO, J.:

Yet again, we are tasked to substitute our judgment for that of the Office of the
Ombudsman in its finding of lack of probable cause made during preliminary
investigation. And, yet again, we reaffirm the time-honored practice of non-interference
in the conduct of preliminary investigations by our prosecutory bodies absent a showing
of grave abuse of discretion on their part.
 Petitioners, thru a special civil action for certiorari,[1] contend precisely that the
public respondents herein officers of the Office of the Ombudsman gravely abused their
discretion in dismissing the complaint for violation of Article 125 of the Revised Penal
Code (Delay in the delivery of detained persons) against private respondents herein,
members of the Philippine National Police stationed at the Municipality of Santa, Ilocos
Sur.
From the respective pleadings[2] of the parties, the following facts appear to be
indubitable:

1. On or about 8:30 in the evening of 13 May 2001 (a Sunday and the day before the
14 May 2001 Elections[3]), petitioners were arrested without a warrant by respondents
police officers for alleged illegal possession of firearms and ammunition;

2. Petitioner Soria was arrested for alleged illegal possession of .38 cal. revolver (a
crime which carries with it the penalty of prision correccional in its maximum period)
and for violation of Article 261 par. (f) of the Omnibus Election Code in relation to
the Commission on Election Resolution No. 3328 (which carries the penalty of
imprisonment of not less than one [1] year but not more than six [6] years);

3. Petitioner Bista was arrested for alleged illegal possession of sub-machine pistol
UZI, cal. 9mm and a .22 cal. revolver with ammunition;

4. Immediately after their arrest, petitioners were detained at the Santa, Ilocos Sur,
Police Station. It was at the Santa Police Station that petitioner Bista was identified by
one of the police officers to have a standing warrant of arrest for violation of Batas
Pambansa Blg. 6 issued by the Municipal Trial Court (MTC) of Vigan, Ilocos Sur,
docketed as Criminal Case No. 12272;

5. The next day, at about 4:30 p.m. of 14 May 2001 (Monday and election day),
petitioners were brought to the residence of Provincial Prosecutor Jessica Viloria in
San Juan, Ilocos Sur, before whom a Joint-Affidavit against them was subscribed and
sworn to by the arresting officers. From there, the arresting officers brought the
petitioners to the Provincial Prosecutors Office in Vigan, Ilocos Sur, and there at
about 6:00 p.m. the Joint-Affidavit was filed and docketed;

6. At about 6:30 in the evening of the same day, 14 May 2001, petitioner Soria
was released upon the order of Prosecutor Viloria to undergo the requisite
preliminary investigation, while petitioner Bista was brought back and continued to be
detained at the Santa Police Station. From the time of petitioner Sorias detention up to
the time of his release, twenty-two (22) hours had already elapsed;
 7. On 15 May 2001, at around 2:00 in the afternoon, petitioner Bista was brought
before the MTC of Vigan, Ilocos Sur, where the case for violation of Batas Pambansa
Blg. 6 was pending. Petitioner Bista posted bail and an Order of Temporary Release
was issued thereafter;

8. At this point in time, no order of release was issued in connection with petitioner
Bistas arrest for alleged illegal possession of firearms. At 4:30 in the afternoon of
the same day (15 May 2001), an information for Illegal Possession of Firearms and
Ammunition, docketed as Criminal Case No. 4413-S, was filed against petitioner
Bista with the 4th Municipal Circuit Trial Court of Narvacan, Ilocos Sur. At 5:00 in
the afternoon, informations for Illegal Possession of Firearms and Ammunition and
violation of Article 261 par. (f) of the Omnibus Election Code in relation to
COMELEC Resolution No. 3328, docketed as Criminal Cases No. 2269-N and No.
2268-N, respectively, were filed in the Regional Trial Court at Narvacan, Ilocos Sur;

9. On 08 June 2001, petitioner Bista was released upon filing of bail bonds in
Criminal Cases No. 2268-N and No. 4413-S. He was detained for 26 days.

10. On 15 August 2001, petitioners filed with the Office of the Ombudsman for
Military Affairs a complaint-affidavit for violation of Art. 125 of the Revised Penal
Code against herein private respondents.

11. After considering the parties respective submissions, the Office of the
Ombudsman rendered the first assailed Joint Resolution dated 31 January 2002
dismissing the complaint for violation of Art. 125 of the Revised Penal Code for lack
of merit; and

12. On 04 March 2002, petitioners then filed their motion for reconsideration which
was denied for lack of merit in the second assailed Resolution dated 25 March 2002.

Article 125 of the Revised Penal Code states:

Art. 125. Delay in the delivery of detained persons to the proper judicial authorities. -
The penalties provided in the next preceding article shall be imposed upon the public
officer or employee who shall detain any person for some legal ground and shall fail
to deliver such person to the proper judicial authorities within the period of: twelve
(12) hours, for crimes or offenses punishable by light penalties, or their equivalent;
eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or
their equivalent; and thirty-six (36) hours, for crimes or offenses punishable by
afflictive or capital penalties, or their equivalent.
In every case, the person detained shall be informed of the cause of his detention and
shall be allowed, upon his request, to communicate and confer at any time with his
attorney or counsel.

It is not under dispute that the alleged crimes for which petitioner Soria was arrested
without warrant are punishable by correctional penalties or their equivalent, thus,
criminal complaints or information should be filed with the proper judicial authorities
within 18 hours of his arrest. Neither is it in dispute that the alleged crimes for which
petitioner Bista was arrested are punishable by afflictive or capital penalties, or their
equivalent, thus, he could only be detained for 36 hours without criminal complaints or
information having been filed with the proper judicial authorities.
The sole bone of contention revolves around the proper application of the 12-18-36
periods. With respect specifically to the detention of petitioner Soria which lasted for 22
hours, it is alleged that public respondents gravely erred in construing Article 125 [4] as
excluding Sundays, holidays and election days in the computation of the periods
prescribed within which public officers should deliver arrested persons to the proper
judicial authorities as the law never makes such exception. Statutory construction has it
that if a statute is clear and unequivocal, it must be given its literal meaning and applied
without any attempts at interpretation.[5] Public respondents, on the other hand, relied on
the cases of Medina v. Orozco, Jr.,[6] and Sayo v. Chief of Police of Manila[7] and on
commentaries[8] of jurists to bolster their position that Sundays, holidays and election
days are excluded in the computation of the periods provided in Article 125,[9] hence,
the arresting officers delivered petitioners well within the allowable time.
In addition to the foregoing arguments and with respect specifically to petitioner
Bista, petitioners maintain that the filing of the information in court against petitioner
Bista did not justify his continuous detention. The information was filed at 4:30 p.m. of
15 May 2001 but the orders for his release were issued by the Regional Trial Court and
Municipal Trial Court of Narvacan, Ilocos Sur, only on 08 June 2001. They argued that
based on law and jurisprudence, if no charge is filed by the prosecutor within the period
fixed by law, the arresting officer must release the detainee lest he be charged with
violation of Article 125.[10] Public respondents countered that the duty of the arresting
officers ended upon the filing of the informations with the proper judicial authorities
following the rulings in Agbay v. Deputy Ombudsman for the Military,[11] and People v.
Acosta.[12]
From a study of the opposing views advanced by the parties, it is evident that public
respondents did not abuse their discretion in dismissing for lack of probable cause the
complaint against private respondents.
Grave abuse of discretion is such capricious and whimsical exercise of judgment on
the part of the public officer concerned which is equivalent to an excess or lack of
jurisdiction. The abuse of discretion must be so patent and gross as to amount to an
evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act
at all in contemplation of law as where the power is exercised in an arbitrary and
despotic manner by reason of passion or hostility.[13]
 No grave abuse of discretion, as defined, can be attributed to herein public
respondents. Their disposition of petitioners complaint for violation of Article 125 of the
Revised Penal Code cannot be said to have been conjured out of thin air as it was
properly backed up by law and jurisprudence. Public respondents ratiocinated thus:

As aptly pointed out by the respondents insofar as the complaint of Rodolfo Soria is
concerned, based on applicable laws and jurisprudence, an election day or a special
holiday, should not be included in the computation of the period prescribed by law for
the filing of complaint/information in courts in cases of warrantless arrests, it being a
no-office day. (Medina vs. Orosco, 125 Phil. 313.) In the instant case, while it appears
that the complaints against Soria for Illegal Possession of Firearm and Violation of
COMELEC Resolution No. 3328 were filed with the Regional Trial Court and
Municipal Trial Court of Narvacan, Ilocos Sur, only on May 15, 200[1] at 4:30 p.m.,
he had already been released the day before or on May 14, 2001 at about 6:30 p.m. by
the respondents, as directed by Prov. Prosecutor Jessica [Viloria]. Hence, there could
be no arbitrary detention or violation of Article 125 of the Revised Penal Code to
speak of.[14]

Indeed, we did hold in Medina v. Orozco, Jr.,[15] that

. . . The arresting officers duty under the law was either to deliver him to the proper
judicial authorities within 18 hours, or thereafter release him. The fact however is that
he was not released. From the time of petitioners arrest at 12:00 oclock p.m. on
November 7 to 3:40 p.m. on November 10 when the information against him for
murder actually was in court, over 75 hours have elapsed.

But, stock should be taken of the fact that November 7 was a Sunday; November 8
was declared an official holiday; and November 9 (election day) was also an official
holiday. In these three no-office days, it was not an easy matter for a fiscal to look for
his clerk and stenographer, draft the information and search for the Judge to have him
act thereon, and get the clerk of court to open the courthouse, docket the case and
have the order of commitment prepared. And then, where to locate and the uncertainty
of locating those officers and employees could very well compound the fiscals
difficulties. These are considerations sufficient enough to deter us from declaring that
Arthur Medina was arbitrarily detained. For, he was brought to court on the very first
office day following arrest.

And, in Sayo v. Chief of Police of Manila[16] --

. . . Of course, for the purpose of determining the criminal liability of an officer

detaining a person for more than six hours prescribed by the Revised Penal Code, the
means of communication as well as the hour of arrest and other circumstances, such
as the time of surrender and the material possibility for the fiscal to make the
investigation and file in time the necessary information, must be taken into
consideration.

As to the issue concerning the duty of the arresting officer after the information has
already been filed in Court, public respondents acted well within their discretion in ruling
thus:

In the same vein, the complaint of Edimar Bista against the respondents for Violation
of Article 125, will not prosper because the running of the thirty-six (36)-hour period
prescribed by law for the filing of the complaint against him from the time of his
arrest was tolled by one day (election day). Moreover, he has a standing warrant of
arrest for Violation of B.P. Blg. 6 and it was only on May 15, 2001, at about 2:00 p.m.
that he was able to post bail and secure an Order of Release. Obviously, however, he
could only be released if he has no other pending criminal case requiring his
continuous detention.

The criminal Informations against Bista for Violations of Article 125, RPC and
COMELEC Resolution No. 3328 were filed with the Regional Trial Court and
Municipal Trial Court of Narvacan, Ilocos Sur, on May 15, 2001 (Annexes G and I,
Complaint-Affidavit of Edimar Bista) but he was released from detention only on
June 8, 2001, on orders of the RTC and MTC of Narvacan, Ilocos Sur (Annexes J and
K, Complaint-Affidavit). Was there a delay in the delivery of detained person to the
proper judicial authorities under the circumstances? The answer is in the negative.
The complaints against him was (sic) seasonably filed in the court of justice within the
thirty-six (36)-hour period prescribed by law as discussed above. The duty of the
detaining officers is deemed complied with upon the filing of the complaints. Further
action, like issuance of a Release Order, then rests upon the judicial authority (People
v. Acosta [CA] 54 O.G. 4739).[17]

The above disposition is in keeping with Agbay v. Deputy Ombudsman for the
Military,[18] wherein we ordained that

. . . Furthermore, upon the filing of the complaint with the Municipal Trial Court, the
intent behind Art. 125 is satisfied considering that by such act, the detained person is
informed of the crime imputed against him and, upon his application with the court,
he may be released on bail. Petitioner himself acknowledged this power of the MCTC
to order his release when he applied for and was granted his release upon posting bail.
Thus, the very purpose underlying Article 125 has been duly served with the filing of
the complaint with the MCTC. We agree with the position of the Ombudsman that
such filing of the complaint with the MCTC interrupted the period prescribed in said
Article.
 All things considered, there being no grave abuse of discretion, we have no choice
but to defer to the Office of the Ombudsmans determination that the facts on hand do
not make out a case for violation of Article 125 of the Revised Penal Code.
As we have underscored in numerous decisions --

We have consistently refrained from interfering with the investigatory and

prosecutorial powers of the Ombudsman absent any compelling reason. This policy is
based on constitutional, statutory and practical considerations. We are mindful that the
Constitution and RA 6770 endowed the Office of the Ombudsman with a wide
latitude of investigatory and prosecutorial powers, virtually free from legislative,
executive or judicial intervention, in order to insulate it from outside pressure and
improper influence. Moreover, a preliminary investigation is in effect a realistic
judicial appraisal of the merits of the case. Sufficient proof of the guilt of the accused
must be adduced so that when the case is tried, the trial court may not be bound, as a
matter of law, to order an acquittal. Hence, if the Ombudsman, using professional
judgment, finds the case dismissible, the Court shall respect such findings, unless
clothed with grave abuse of discretion. Otherwise, the functions of the courts will
be grievously hampered by innumerable petitions assailing the dismissal of
investigatory proceedings conducted by the Office of the Ombudsman with regard to
complaints filed before it. In much the same way, the courts will be swamped with
cases if they will have to review the exercise of discretion on the part of fiscals or
prosecuting attorneys each time the latter decide to file an information in court or
dismiss a complaint by a private complainant.[19] (Emphasis supplied)

WHEREFORE, premises considered, the petition dated 27 May 2002 is hereby

DISMISSED for lack of merit. The Joint Resolution dated 31 January 2002 and the
Order dated 25 March 2002 of the Office of the Ombudsman are hereby AFFIRMED.
No costs.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

Republic of the Philippines

Supreme Court
Baguio City
 THIRD DIVISION

FELICIANO GALVANTE, G.R. No. 162808

Petitioner,
Present:
- versus -
YNARES-SANTIAGO, J.,
HON. ORLANDO C. CASIMIRO, Chairperson,
Deputy Ombudsman for the AUSTRIA-MARTINEZ,
Military and Other Law Enforcement CHICO-NAZARIO,
Offices, BIENVENIDO C. NACHURA, and
BLANCAFLOR, Director, DENNIS REYES, JJ.
L. GARCIA, Graft Investigation and
Prosecution Officer, SPO4 Promulgated:
RAMIL AVENIDO, PO1 EDDIE April 22, 2008
DEGRAN, PO1 VALENTINO
RUFANO, and PO1 FEDERICO
BALOLOT,
Respondents.
x---------------------------------------------------------x

DECISION

AUSTRIA-MARTINEZ, J.:

Assailed herein by Petition for Certiorari and Mandamus under Rule 65 of the Rules of
Court are the October 30, 2003 Resolution[1] of the Office of the Deputy Ombudsman for
the Military and Other Law Enforcement Offices - Office of the Ombudsman
(Ombudsman) which dismissed for lack of probable cause the criminal complaint,
docketed as OMB-P-C-02-0109-B, filed by Feliciano Galvante[2] (petitioner) against SPO4
Benjamin Conde, PO1 Ramil Avenido, PO1 Eddie Degran, PO1 Valentino Rufano, and
PO1 Federico Balolot (private respondents) for arbitrary detention, illegal search and grave
threats; and the January 20, 2004 Ombudsman Order[3] which denied his motion for
reconsideration.
The facts are of record.

In the afternoon of May 14, 2001 at Sitio Cahi-an, Kapatungan, Trento, Agusan del Sur,
private respondents confiscated from petitioner one colt pistol super .38 automatic with
serial no. 67973, one short magazine, and nine super .38 live ammunitions.[4] The
confiscated materials were covered by an expired Memorandum Receipt dated September
2, 1999.[5]

Consequently, the Assistant Provincial Prosecutor filed against petitioner an

Information[6] for Illegal Possession of Firearms and Ammunitions in Relation to
Commission on Elections (COMELEC) Resolution No. 3258, docketed as Criminal Case
No. 5047, before the Regional Trial Court (RTC), Prosperidad, Agusan del Sur.

Pending resolution of Criminal Case No. 5047, petitioner filed against private respondents
an administrative case, docketed as Administrative Case No. IASOB-020007 for Grave
Misconduct,before the Internal Affairs Service (IAS), Region XIII, Department of Interior
and Local Government (DILG);[7] and a criminal case, docketed as OMB-P-C-02-0109-B
for Arbitrary Detention, Illegal Search and Grave Threats, before the Ombudsman.[8]

In the June 21, 2001 Affidavit-Complaint he filed in both cases, petitioner narrated
how, on May 14, 2001, private respondents aimed their long firearms at him, arbitrarily
searched his vehicle and put him in detention, thus:

1. That sometime on May 14, 2001 I left my house at around 1:00 oclock in the
afternoon after having lunch for Sitio Cahi-
an, Brgy. Kapatungan, Trento, Agusan del Sur to meet retired police Percival Plaza and
inquire about the retirement procedure for policemen;

2. That upon arrival at the house of retired police Percival Plaza, together with
Lorenzo Sanoria, Delfin Ramirez and Pedro Ramas who asked for a ride from the
highway in going to Sitio Cahi-an, I immediately went down of the jeep but before I
could call Mr. Plaza, four policemen in uniform blocked my way;

3. That the four policemen were [private respondents] PO1 Romil Avenido PNP, PO1
Valentino Rufano, PNP both member of 142nd Company, Regional Mobile Group and
PO1 Eddie Degran PNP and PO1 Federico Balolot PNP members of
1403 Provl Mobile Group, all of Bunawan Brook, Bunawan, Agusan del Sur; who all
pointed their long firearms ready to fire [at] me, having heard the sound of the release
of the safety lock;
 4. That raising my arms, I heard [private respondent] PO1 Avenido saying, ANG
IMONG PUSIL, IHATAG which means Give me your firearm, to which I answered,
WALA MAN KO'Y PUSIL translated as I have no firearm, showing my waistline
when I raised my T-shirt;

5. That my other companions on the jeep also went down and raised their arms and
showed their waistline when the same policemen and a person in civilian attire holding
an armalite also pointed their firearms to them to which Mr. Percival Plaza who came
down from his house told them not to harass me as I am also a former police officer but
they did not heed Mr. Plaza's statements;

6. That while we were raising our arms [private respondent] SPO4 Benjamin Conde, Jr.
went near my owner type jeep and conducted a search. To which I asked them if they
have any search warrant;

7. That after a while they saw my super .38 pistol under the floormat of my jeep and
asked me of the MR of the firearm but due to fear that their long arms were still pointed
to us, I searched my wallet and gave the asked [sic] document;

8. That immediately the policemen left me and my companions without saying

anything bringing with them the firearm;

9. That at about 2:30 p.m., I left Mr. Percival's house and went to Trento Police Station
where I saw a person in civilian attire with a revolver tucked on his waist, to which I
asked the police officers including those who searched my jeep to apprehend him also;

10. That nobody among the policemen at the station made a move to apprehend the
armed civilian person so I went to the office of Police Chief Rocacorba who
immediately called the armed civilian to his office and when already inside his office,
the disarming was done;

11. That after the disarming of the civilian I was put to jail with the said person by Police
Chief Rocacorba and was released only at 4:00 o'clock in the afternoon of May 16,
2001 after posting a bailbond;

12. That I caused the execution of this document for the purpose of filing cases of Illegal
Search, Grave Misconduct and Abuse of Authority against SPO4 Benjamin Conde, Jr.,
of Trento Police Station; PO1 RamilAvenido, PO1 Velantino Rufano, PO1
Federico Balolot and PO1 Eddie Degran.[9]

Petitioner also submitted the Joint Affidavit[10] of his witnesses,

Lorenzo Sanoria and Percival Plaza.

Private respondent Conde filed a Counter-Affidavit dated March 20, 2002, where he
interposed the following defenses:
First, he had nothing to do with the detention of petitioner as it was Chief of Police/Officer-
in-Charge Police Inspector Dioscoro Mehos Rocacorba who ordered the detention.
Petitioner himself admitted this fact in his own Complaint-Affidavit;[11] and

Second, he denies searching petitioner's vehicle,[12] but admits that even though he was not
armed with a warrant, he searched the person of petitioner as the latter, in plain view, was
committing a violation of COMELEC Resolutions No. 3258 and No. 3328 by carrying a
firearm in his person.

Private respondents Avenido, Degran, Rufano and Balolot filed their Joint-Affidavit
dated March 25, 2002, which contradicts the statements of private respondent Conde, viz:

1. that we executed a joint counter-affidavit dated August 28, 2001 where we stated among
other things, that we saw Feleciano Nani Galvante armed with a handgun/pistol tucked
on his waist;
2. that this statement is not accurate because the truth of the matter is that the said handgun
was taken by SPO4 BENJAMIN CONDE, JR., who was acting as our team leader
during the May 14, 2001 Elections, from the jeep of Mr. Galvante after searching the
same; and

3. that we noticed the aforementioned discrepancy in our affidavit dated August 28,
2001 after we have already affixed our signatures thereon.[13]

Consequently, petitioner filed an Affidavit of Desistance dated March 25, 2002 with both
the IAS and Ombudsman, absolving private
respondents Avenido, Degran, Rufano and Balolot, but maintaining that private
respondent Conde alone be prosecuted in both administrative and criminal cases.[14]
On July 17, 2002, the IAS issued a Decision in Administrative Case No. IASOB-020007,
finding all private respondents guilty of grave misconduct but penalized them with
suspension only. The IAS noted however that private respondents were merely being
[enthusiastic] in the conduct of the arrest in line of duty. [15]

Meanwhile, in Criminal Case No. 5047, petitioner filed with the RTC a Motion for
Preliminary Investigation and to Hold in Abeyance the Issuance of or Recall the Warrant of
Arrest.[16] The RTC granted the same in an Order[17] dated August 17, 2001. Upon
reinvestigation, Prosecutor II Eliseo Diaz, Jr. filed a Reinvestigation with Motion to
Dismiss dated November 22, 2001, recommending the dismissal of Criminal Case No.
5047 on the ground that the action of the policemen who conducted the warrantless search
in spite of the absence of any circumstances justifying the same intruded into the privacy of
the accused and the security of his property.[18] Officer-in-Charge Prosecutor
II Victoriano Pag-ong approved said recommendation.[19]

The RTC granted the prosecution's motion to dismiss in an Order[20] dated January 16,
2003.

Apparently unaware of what transpired in Criminal Case No. 5047, Ombudsman

Investigation & Prosecution Officer Dennis L. Garcia issued in OMB-P-C-02-0109-B, the
October 30, 2003 Resolution, to wit:

After a careful evaluation, the undersigned prosecutor finds no probable cause for any of
the offenses charged against above-named respondents.

The allegations of the complainant failed to establish the factual basis of the complaint, it
appearing from the records that the incident stemmed from a valid warrantless arrest.
The subsequent execution of an affidavit of desistance by the complainant rendered the
complaint even more uncertain and subject to doubt, especially so since it merely
exculpated some but not all of the respondents. These circumstances, coupled with the
presumption of regularity in the performance of duty, negates any criminal liability on the
part of the respondents.

WHEREFORE, premises considered, it is hereby recommended that the above-captioned

case be DISMISSED for lack of probable cause.[21] (Emphasis supplied)

Upon the recommendation of Director Bienvenido C. Blancaflor, Deputy Ombudsman for

the Military Orlando C. Casimiro (Deputy Ombudsman) approved the October 30,
2003 Resolution.[22]

In his Motion for Reconsideration,[23] petitioner called the attention of the Ombudsman to
the earlier IAS Decision, the Reinvestigation with Motion to Dismiss of Prosecutor
II Eliseo Diaz, Jr. and the RTC Order, all of which declared the warrantless search
conducted by private respondents illegal,[24] which are contradicted by the October 30,
2003 Ombudsman Resolution declaring the warrantless search legal.

The Ombudsman denied petitioner's motion for reconsideration on the ground that the
latter offered no new evidence or errors of law which would warrant the reversal or
modification[25] of itsOctober 30, 2003 Resolution.

Petitioner filed the present petition, attributing to Deputy Ombudsman Casimiro,

Director Blancaflor and Prosecutor Garcia (public respondents) the following acts of grave
abuse of discretion:
 I. Public respondents acted without or in excess of their jurisdiction and/or with grave abuse
of discretion amounting to lack or excess of jurisdiction when, in their Resolution dated
October 30, 2003, public respondents found that the incident upon which petitioner's
criminal complaint was based stemmed from a valid warrantless arrest and dismissed
petitioner's complaint despite the fact that:

A. Petitioner has clearly shown that the search conducted by the private
respondents was made without a valid warrant, nor does it fall under any of the
instances of valid warrantless searches.

B. Notwithstanding the absence of a valid warrant, petitioner was arrested and

detained by the private respondents.

II. Public respondents acted without or in excess of their jurisdiction and/or with grave
abuse of discretion amounting to lack or excess of jurisdiction when, in their Order dated
January 20, 2004, public respondents denied the petitioner's motion for reconsideration in a
capricious, whimsical, despotic and arbitrary manner. [26]
In its Memorandum,[27] the Office of the Solicitor General argued that public respondents
acted within the bounds of their discretion in dismissing OMB-P-C-02-0109-B given that
private respondents committed no crime in searching petitioner and confiscating his
firearm as the former were merely performing their duty of enforcing the law against illegal
possession of firearms and the COMELEC ban against the carrying of firearms outside of
one's residence.
Private respondent Conde filed a Comment[28] and a Memorandum for himself.[29] Private
respondents Avenido, Degran, Rufano and Balolot filed their separate Letter-Comment
dated June 25, 2004.[30]

The petition lacks merit.

The Constitution vests in the Ombudsman the power to determine whether there
exists reasonable ground to believe that a crime has been committed and that the accused is
probably guilty thereof and, thereafter, to file the corresponding information with the
appropriate courts.[31] The Court respects the relative autonomy of the Ombudsman to
investigate and prosecute, and refrains from interfering when the latter exercises such
powers either directly or through the Deputy Ombudsman,[32] except when the same is
shown to be tainted with grave abuse of discretion amounting to lack or excess of
jurisdiction.[33]

Grave abuse of discretion is an evasion of a positive duty or a virtual refusal to perform a

duty enjoined by law or to act in contemplation of law as when judgment rendered is not
based on law and evidence but on caprice, whim and despotism.[34] This does not obtain in
the present case.

It is noted that the criminal complaint which petitioner filed with the Ombudsman charges
private respondents with warrantless search, arbitrary detention, and grave threats.

The complaint for warrantless search charges no criminal offense. The conduct of
a warrantless search is not a criminal act for it is not penalized under the Revised Penal
Code (RPC) or any other special law. What the RPC punishes are only two forms of
searches:

Art. 129. Search warrants maliciously obtained and abuse in the service of those legally
obtained. - In addition to the liability attaching to the offender for the commission of any
other offense, the penalty of arrestomayor in its maximum period to prision correccional in
its minimum period and a fine not exceeding P1,000.00 pesos shall be imposed upon any
public officer or employee who shall procure a search warrant without just cause, or,
having legally procured the same, shall exceed his authority or use unnecessary severity in
executing the same.

Art. 130. Searching domicile without witnesses. - The penalty of arresto mayor in its
medium and maximum periods shall be imposed upon a public officer or employee who, in
cases where a search is proper, shall search the domicile, papers or other belongings of any
person, in the absence of the latter, any member of his family, or in their default, without
the presence of two witnesses residing in the same locality.

Petitioner did not allege any of the elements of the foregoing felonies in his Affidavit-
Complaint; rather, he accused private respondents of conducting a search on his vehicle
without being armed with a valid warrant. This situation, while lamentable, is not covered
by Articles 129 and 130 of the RPC.

The remedy of petitioner against the warrantless search conducted on his vehicle is
civil,[35] under Article 32, in relation to Article 2219[36] (6) and (10) of the Civil Code,
which provides:

Art. 32. Any public officer or employee, or any private individual, who directly or
indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the
following rights and liberties of another person shall be liable to the latter for damages:

xxxx

(9) The right to be secure in ones person, house, papers, and effects against
unreasonable searches and seizures;
 xxxx

The indemnity shall include moral damages. Exemplary damages may also be
adjudicated.

and/or disciplinary and administrative, under Section 41 of Republic Act No. 6975.[37]

To avail of such remedies, petitioner may file against private respondents a complaint for
damages with the regular courts[38] or an administrative case with the PNP/DILG,[39] as
petitioner did in Administrative Case No. IASOB-020007, and not a criminal action with
the Ombudsman.

Public respondents' dismissal of the criminal complaint for illegal search which petitioner
filed with the Ombudsman against private respondents was therefore proper, although the
reasons public respondents cited for dismissing the complaint are rather off the mark
because they relied solely on the finding that the warrantless search conducted by private
respondents was valid and that the Affidavit of Desistance which petitioner executed cast
doubt on the veracity of his complaint.[40] Public respondents completely overlooked the
fact that the criminal complaint was not cognizable by the Ombudsman as illegal search is
not a criminal offense. Nevertheless, the result achieved is the same: the dismissal of a
groundless criminal complaint for illegal search which is not an offense under the
RPC. Thus, the Court need not resolve the issue of whether or not public respondents erred
in their finding on the validity of the search for that issue is completely hypothetical under
the circumstance.

The criminal complaint for abitrary detention was likewise properly dismissed by public
respondents. To sustain a criminal charge for arbitrary detention, it must be shown that (a)
the offender is a public officer or employee, (b) the offender detained the complainant, and
(c) the detention is without legal grounds.[41] The second element was not alleged by
petitioner in his Affidavit-Complaint. As pointed out by private respondent Conde in his
Comment[42] and Memorandum,[43] petitioner himself identified in his Affidavit-Complaint
that it was Police Chief Rocacorbawho caused his detention. Nowhere in said affidavit did
petitioner allege that private respondents effected his detention, or were in any other way
involved in it.[44] There was, therefore, no factual or legal basis to sustain the criminal
charge for arbitrary detention against private respondents.

Finally, on the criminal complaint for grave threats, the Solicitor General aptly pointed out
that the same is based merely on petitioner's bare allegation that private respondents aimed
their firearms at him.[45] Such bare allegation stands no chance against the well-entrenched
 rule applicable in this case, that public officers enjoy a presumption of regularity in the
performance of their official function.[46] The IAS itself observed that private respondents
may have been carried away by their enthusiasm in the conduct of the arrest in line of
duty.[47] Petitioner expressed the same view when, in his Affidavit of Desistance, he
accepted that private respondents may have been merely following orders when they
pointed their long firearms at him.

All said, public respondents did not act with grave abuse of discretion in dismissing the
criminal complaint against private respondents.
WHEREFORE, the petition is DENIED.

No costs.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MINITA V. CHICO-NAZARIO ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

RUBEN T. REYES
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.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third 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
had been reached in consultation before the case was assigned to the writer of the opinion
of the Courts Division.

REYNATO S. PUNO
Chief Justice

SECOND DIVISION

[G.R. No. 158211. August 31, 2004]

ERNESTO J. SAN AGUSTIN, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.

DECISION
CALLEJO, SR., J.:

This is a petition for review on certiorari filed by Ernesto J. San Agustin of the
Decision[1] of the Court of Appeals in CA-G.R. SP No. 71925 dismissing his petition
for certiorari.

The Antecedents

Luz Tan executed a notarized criminal complaint and filed the same with the
National Bureau of Investigation (NBI) charging the petitioner, the Barangay Chairman
of Barangay La Huerta, Paraaque City, with serious illegal detention alleging that the
petitioner detained her husband Vicente Tan, on June 19, 2002, without lawful ground
therefor.[2]
On June 25, 2002, the petitioner received a subpoena from Ferdinand M. Lavin, the
Chief of the Anti-Organized Crime Division of the NBI, requiring him to appear before
said office the next day, on June 26, 2002, in order to give his evidence in connection
with said complaint and to bring with him the barangay logbook for June 19, 2002. The
petitioner complied with the subpoena and presented himself at the NBI with the
barangay logbook. However, the petitioner was placed under arrest and prevented from
going back home.
On June 27, 2002, the NBI Director transmitted to the Department of Justice the
findings of the NBI on its investigation of the case:

On June 19, 2002 at around 9:00 oclock in the morning while Victim RICARDO
TAN and Witness ANTONIO GERONIMO were selling their wares of kitchen
utensils along the highway of La Huerta, Paraaque City, Victim TAN was mistaken as
a snatcher by two tricycle drivers, namely, ROMEO C. ALCANTARA and
JOSEFINO FERRER, JR. Victim was turned-over to Subject SAN AGUSTIN and
other Subjects at the Barangay Hall of La Huerta, Paraaque City; witness
GERONIMO followed them. GERONIMO witnessed that Victim was beaten by
Subjects and locked-up at the Barangay jail so he decided to inform the wife of the
Victim (Complainant) who was residing in San Pedro, Laguna. When Complainant
went to the Barangay Hall on the same day and inquired on the whereabouts of his
husband, two female clerks thereat denied having seen the Victim. Complainant was
able to talk to Subject SAN AGUSTIN the following day but he also denied having
seen Victim, worst Subject SAN AGUSTIN was furious and even shouted at them and
brought out his knife. Up to date, Victim, never resurfaced nor his whereabouts
located. Record at the NBI central file of Subject SAN AGUSTIN revealed that he has
several cases of homicide, murder and multiple murder. [3]

The NBI Director stated that the basis for the arrest of the petitioner was:

BASIS OF ARREST:

Subject SAN AGUSTIN was subpoenaed to appear before the NBI-AOCD to

controvert allegations filed against him for kidnapping by Ms. Luz Tan. He was
enjoined to come with his Counsel and bring the logbook of the Barangay. When
Subject appeared at the NBI, he presented at once the logbook of the Barangay. It was
noted at the said logbook that there was no entry on June 19, 2002 that Victim
RICARDO TAN was arrested or transmitted to any law enforcement agency or proper
authority.[4]

State Prosecutor Elizabeth L. Berdal conducted an inquest investigation on June

27, 2002 and came out with a Resolution, on the same day, affirmed by the Assistant
Chief State Prosecutor, finding probable cause against the petitioner for serious illegal
detention under Article 267 of the Revised Penal Code.[5]
On June 28, 2002, an Information was filed before
the Regional Trial Court of Paraaque City, charging the petitioner with
kidnapping/serious illegal detention with no bail recommended. The case was raffled to
Branch 258 of the court and docketed as Criminal Case No. 02-0759.
On July 1, 2002, the petitioner filed a Motion to Quash the Information on the
ground that he was illegally arrested and subjected to an inquest investigation; hence,
he was deprived of his right to a preliminary investigation. He also prayed that he be
released from detention and that, in the meantime, the NBI be ordered to refile the
complaint against him with
the Office of the Paraaque City Prosecutor and for the latter to conduct a preliminary
investigation. On July 4, 2002, the petitioner filed a Motion to Quash the Information,
this time, on the ground that the facts alleged therein do not constitute the felony of
kidnapping/serious illegal detention. He claimed that he was a barangay chairman when
the private complainant was allegedly detained; hence, he should be charged only with
arbitrary detention, the most severe penalty for which is reclusion temporal.
The prosecution opposed the petitioners motion to quash the Information on the
ground that when he detained the private complainant, he acted in his private capacity
and not as a barangay chairman.[6]
On July 24, 2002, the RTC issued an Order directing the City Prosecutor to conduct
a reinvestigation within a non-extendible period of forty-five (45)
days. Assistant City Prosecutor Antonietta Pablo Medina was assigned to conduct the
[7]

reinvestigation. The petitioner opposed the reinvestigation contending that the

prosecutor should conduct a regular preliminary investigation since the inquest
investigation was void. He refused to submit a counter-affidavit.
 On July 31, 2002, the petitioner filed a petition for certiorari with the Court of
Appeals assailing the July 24, 2002 Order of the RTC. He raised in his petition the
following issues:

1. Whether or not respondent Judge De Leon acted arbitrarily and in grave abuse of
discretion in not granting petitioners Urgent Motion to Quash Information dated 01
July 2002.

2. Whether or not respondent Judge De Leon acted arbitrarily and in grave abuse of
discretion in not granting petitioners Urgent Motion to Quash On The Ground That
The Facts Charged Do Not Constitute An Offense dated 04 July 2002.

3. Whether or not respondent Judge De Leon acted arbitrarily and in grave abuse of
discretion in not granting bail as a matter of right in favor of the petitioner.

4. Whether or not respondent Judge Jose S. Jacinto, Jr. of the Metropolitan Trial Court
of Paraaque, Branch 77, can validly and legally proceed with the hearing of Criminal
Case No. 02-2486. [8]

In the meantime, on August 27, 2002, the Assistant City Prosecutor came out with a
Resolution finding probable cause of arbitrary detention against the petitioner and
recommending that the Information for arbitrary detention and the Motion to Withdraw
Information appended thereto be approved.[9] The City Prosecutor opposed the said
Resolution.
On August 28, 2002, the Assistant City Prosecutor filed with the trial court a Motion
to Withdraw Information.[10] On August 30, 2002, the RTC issued an Order granting the
motion and considered the Information withdrawn.
On the same day, an Information was filed with the Metropolitan Trial Court (MeTC)
docketed as Criminal Case No. 02-2486, charging the petitioner with arbitrary
detention, viz:

That on or about the 19th day of June 2002 and subsequent thereto, in the City of
Paraaque, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, being a Barangay Chairman of Brgy. La Huerta, Paraaque City, a
public officer, committing the offense in relation to office, did then and there
willfully, unlawfully and feloniously detain one RICARDO TAN, an act done as he
well knew, arbitrary and without legal ground (sic).

CONTRARY TO LAW.[11]

The case was raffled to Branch 77 of the court. The petitioner posted a cash bond
of P3,000.00 for his provisional release without prejudice to the outcome of his petition
in the Court of Appeals.[12]
 On April 15, 2003, the Court of Appeals rendered its decision denying due course
and dismissing the petition for certiorari of the petitioner.
The petitioner filed the petition at bar contending that:
4.1 THE COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT NO GRAVE
ABUSE OF DISCRETION WAS COMMITTED BY JUDGE RAUL E. DE LEON
WHEN HE DENIED PETITIONERS URGENT MOTION TO QUASH
INFORMATION DATED JULY 01, 2002.
4.2. THE COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT NO GRAVE
ABUSE OF DISCRETION WAS COMMITTED BY JUDGE RAUL E. DE LEON
WHEN HE DENIED PETITIONERS URGENT MOTION TO QUASH ON THE
GROUND THAT THE FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE
DATED 04 JULY 2002.
4.3. THE COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT NO GRAVE
ABUSE OF DISCRETION WAS COMMITED BY JUDGE RAUL E. DE LEON
WHEN HE DENIED PETITIONER OF HIS CONSTITUTIONALLY-GUARANTEED
RIGHT TO BAIL.
4.4. THE COURT OF APPEALS SERIOUSLY ERRED IN HOLDING THAT JUDGE
JOSE S. JACINTO OF THE METROPOLITAN TRIAL COURT OF PARAAQUE,
BRANCH, (sic) CAN VALIDLY AND LEGALLY PROCEED WITH THE HEARINGS
IN CRIMINAL CASE NO. 02-2486.[13]
The petitioner asserts that he was illegally arrested by the NBI; hence, he was
entitled to a regular preliminary investigation, not merely to an inquest investigation. He
contends that since the Information charging him with kidnapping/serious illegal
detention was filed before the Regional Trial Court without affording him a preliminary
investigation, the Information is void.The RTC, the petitioner avers, should have granted
his motion to quash the Information and ordered the NBI to refile its complaint against
him with the Office of the City Prosecutor of Paraaque for the appropriate preliminary
investigation and that, in the meantime, the RTC should have ordered his release from
detention. The petitioner posits that the RTC committed a grave abuse of its discretion
amounting to excess or lack of jurisdiction in denying his motion to quash the
Information and directing the City Prosecutor to conduct a reinvestigation. On the other
hand, since the Assistant City Prosecutor did not conduct a regular preliminary
investigation before filing the Information for arbitrary detention against him with the
MeTC, the Information is void. Hence, the MeTC should be ordered to quash the
Information filed therein.
In its Comment to the petition, the Office of the Solicitor General (OSG) contends
that the petition for certiorari of the petitioner in the Court of Appeals and in this Court
had become moot and academic by the withdrawal of the Information from the Regional
Trial Court and filing of the Information for arbitrary detention against the petitioner in
the MTC. The inquest investigation conducted by the State Prosecutor was valid
because the petitioner refused to execute a waiver under Article 125 of the Revised
Penal Code. The OSG asserts that the investigation conducted by the Assistant City
Prosecutor, as directed by the RTC, was valid. The petitioner is estopped from assailing
the Resolution of the Assistant City Prosecutor finding probable cause for arbitrary
detention because of his failure to submit his counter-affidavit.
The Court of Appeals ruled that the petitioner was unlawfully arrested; hence, he
was entitled to preliminary investigation and release from detention subject to his
appearance during the preliminary investigation. However, the Court of Appeals
declared that the lack of preliminary investigation did not impair the validity of the
Information filed with the RTC. Moreover, the Court of Appeals declared that the
petitioner had already been granted a reinvestigation after which the Information filed
with the RTC was withdrawn. Consequently, the appellate court further declared that the
petition had been mooted by the withdrawal of the Information from the RTC and the
filing of another Information in the MeTC for arbitrary detention. The appellate court also
held that the RTC did not commit grave abuse of its discretion amounting to excess or
lack of jurisdiction in issuing the assailed Order. It ruled that even if the reinvestigation
conducted by the City Prosecutor is defective, the Information filed with the MeTC is
valid because under the Revised Rules of Criminal Procedure, there is no need for a
preliminary investigation for crimes cognizable by the Metropolitan Trial Court.
The petition is partially granted.
We agree with the Court of Appeals that the petitioner was unlawfully arrested
without a warrant of arrest against him for kidnapping/serious illegal detention. As
correctly ruled by the Court of Appeals:

Furthermore, warrantless arrest or the detention of petitioner in the instant case does
not fall within the provision of Section 5, Rule 113, Revised Rules on Criminal
Procedure, as amended, which provides:

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

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

(b) When an offense has 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 while being
transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) above, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail and shall be
proceeded against in accordance with Section 7 of Rule 112.
considering that petitioner only went to the Office of the NBI to answer
the subpoena it issued which was seven (7) days after the supposed turning over of the
custody of Ricardo Tan to petitioner who was then the Barangay Chairman of La
Huerta, Paraaque City, and his locking up in the barangay jail and, thereafter, he was
already arrested and detained. Certainly, the arresting officers were not present within
the meaning of Section 5(a) at the time when the supposed victim, Ricardo Tan, was
turned over to petitioner. Neither could the arrest which was effected seven (7) days
after the incident be seasonably regarded as when the turning over and locking up in
the Barangay jail had in fact just been committed within the meaning of Section 5(b).
Moreover, none of the arresting officers had any personal knowledge of facts
indicating that petitioner was the person to whom the custody of the victim Ricardo
Tan was turned over and who locked up the latter in the Barangay jail. The
information upon which the arresting officers acted upon had been derived from the
statements made by the alleged eyewitnesses to the incident which information did
not, however, constitute personal knowledge. [14]

Consequently, the petitioner is entitled to a preliminary investigation before an

Information may be filed against him for said crime. The inquest investigation conducted
by the State Prosecutor is void because under Rule 112, Section 7 of the Revised Rules
on Criminal Procedure, an inquest investigation is proper only when the suspect is
lawfully arrested without a warrant:

SEC. 7. When accused lawfully arrested without warrant. When a person is lawfully
arrested without a warrant involving an offense which requires a preliminary
investigation, the complaint or information may be filed by a prosecutor without need
of such investigation provided an inquest investigation has been conducted in
accordance with existing rules. In the absence or unavailability of an inquest
prosecutor, the complaint may be filed by the offended party or a peace officer
directly with the proper court on the basis of the affidavit of the offended party or
arresting officer or person.[15]

We also agree with the Court of Appeals that the absence of a preliminary
investigation does not affect the jurisdiction of the trial court but merely the regularity of
the proceedings. It does not impair the validity of the Information or otherwise render it
defective.[16] Neither is it a ground to quash the Information or nullify the order of arrest
issued against him or justify the release of the accused from detention. [17] However, the
trial court should suspend proceedings and order a preliminary
investigation[18] considering that the inquest investigation conducted by the State
Prosecutor is null and void.[19] In sum, then, the RTC committed grave abuse of its
discretion amounting to excess or lack of jurisdiction in ordering the City Prosecutor to
conduct a reinvestigation which is merely a review by the Prosecutor of his records and
evidence instead of a preliminary investigation as provided for in Section 3, Rule 112 of
the Revised Rules on Criminal Procedure.
 However, we do not agree with the ruling of the Court of Appeals that there was no
need for the City Prosecutor to conduct a preliminary investigation since the crime
charged under the Information filed with the MeTC was arbitrary detention under Article
124, paragraph 1 of the Revised Penal Code punishable by arresto mayor in its
maximum period to prision correccionalin its minimum period, which has a range of four
months and one day to two years and four months. Whether or not there is a need for a
preliminary investigation under Section 1 in relation to Section 9 of Rule 112 of the
Revised Rules on Criminal Procedure depends upon the imposable penalty for the
crime charged in the complaint filed with the City or Provincial Prosecutors Office and
not upon the imposable penalty for the crime found to have been committed by the
respondent after a preliminary investigation. In this case, the crime charged in the
complaint of the NBI filed in the Department of Justice was kidnapping/serious illegal
detention, the imposable penalty for which is reclusion perpetua to death.
IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED. The
Order of the Regional Trial Court of Paraaque City, dated July 24, 2004, ordering the
City Prosecutor to conduct a reinvestigation is SET ASIDE. The Regional Trial Court is
directed to ORDER the City Prosecutor of Paraaque City to conduct a preliminary
investigation as provided for in Section 3, Rule 112 of the Revised Rules on Criminal
Procedure. In the meantime, the Metropolitan Trial Court of Paraaque City, Branch 77,
is ordered to suspend the proceedings in Criminal Case No. 02-2486 pending the
outcome of said preliminary investigation.
SO ORDERED.
Austria-Martinez, (Acting Chairman), Tinga, and Chico-Nazario, JJ., concur.
Puno, (Chairman), J., on official leave.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 137841 October 1, 2001

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ALBERTO CHUA alias "BERT", accused-appellant.

PUNO, J.:

This is an automatic review of the decision of the Regional Trial Court, Third Judicial Region,
Malolos, Bulacan, Branch 781 in Criminal Case No. 514-M-98 imposing on accused-appellant Alberto
Chua alias "Bert" the penalty of death.
In a criminal complaint dated April 13, 1998, accused-appellant was charged with the crime of rape
as follows:

"The undersigned complainant, assisted by her mother, Esterlita A. Chua, hereby accuses
Alberto Chua alias Bert of the crime of rape, penalized under the provisions of Art. 335 of the
Revised Penal Code, as amended by RA 7659, committed as follows:

That on or about the 28th day of March 1998, in the municipality of Malolos, province of
Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, father of the offended party, did then and there willfully, unlawfully and feloniously,
by means of force, threats and intimidation and with lewd designs, have carnal knowledge of
the said offended party, Chenny A. Chua, a minor, against her will.

Contrary to law.

Malolos, Bulacan, April 13, 1998.

(SGD.) CHENNY CHUA

Complainant.

Assisted by:

(SGD.) ESTERLITA CHUA

(Mother)

SUBSCRIBED AND SWORN to before me this 13th day of April 1998 at Malolos, Bulacan.

(SGD.) RENATO T. SANTIAGO

3rd Asst. Prov'l. Prosecutor

xxx xxx xxx

I hereby certify that I have conducted proceedings in this case pursuant to the provisions of
Sec. 7, Rule 112 of the 1985 Rules on Criminal Procedure, considering that the herein
accused, who is under custody of the law without warrant of arrest has refused to sign a
written waiver of his rights under Art. 125 of the Revised Penal Code, and finding a prima
facie against the accused, the undersigned is filing this information with the approval of the
Provincial Prosecutor.

(SGD.) RENATO T. SANTIAGO

3rd Asst. Prov'l. Prosecutor

xxx xxx xxx"2

On April 20, 1998, appellant was arraigned and he pleaded "not guilty."3 At the pretrial conference on
May 8, 1998, however, appellant, through counsel, manifested that he was withdrawing his plea and
changing it to "guilty" as charged. As prayed for by counsel for appellant, the trial court reset the
pretrial to May 13, 1998.
On May 13, 1998, the trial court propounded several questions on appellant inquiring into the
voluntariness of his change of plea and his comprehension of its consequences. Satisfied with
appellant's response, the court ordered his rearraignment. Appellant, with the assistance of counsel,
withdrew his plea of "not guilty" and entered a plea of "guilty" as charged.4 Thereafter, the court
ordered the prosecution to present its evidence.

The prosecution presented the testimony of private complainant, Chenny Chua. It also presented
Chenny's sworn statement before the Malolos police investigators5 and the medico-legal report of
the Philippine National Police Crime Laboratory on the girl's physical condition.6 From these
evidence, the following facts were established: On March 28, 1998, at around 2:00 in the afternoon
in Canalate, Malolos, Bulacan, Chenny Chua, thirteen (13) years of age, and her father, herein
accused-appellant, were watching television in the house of her aunt, Salvacion Ardenio Niegas. At
about 2:15, Chenny stood up and went to her family's rented room adjacent to her aunt's house.
Chenny entered the room and laid down on the floor to sleep. Beside her slept two of her younger
sisters. Some fifteen (15) minutes later, Chenny woke up and saw her father, herein appellant,
shaking her and calling her name. Then, she saw him remove her short pants. Chenny stared at
him. She knew what her father was going to do but did not resist him because he had been sexually
molesting her since July 1996. She resisted the very first time it happened, but he forced himself on
her and told her not to say anything about the incident. He said that if her mother would find out, her
mother would surely kill him, and she would be imprisoned and no one would take care of Chenny
and her seven (7) little brothers and sisters. So Chenny bore everything in silence. And that fateful
day, Chenny just closed her eyes as he peeled off her short pants. Appellant went on top of the girl
and parted her thighs. He inserted his penis into her vagina and made a push and pull movement for
some five minutes. After he was through, appellant told Chenny not to report the incident to her
mother. Appellant got up and suddenly sensed that someone was watching them. He turned around
and saw the gaping hole in the wall divider. The hole was not covered by the wall calendar as it used
to be.

Earlier, when appellant was on top of Chenny, the girl saw someone peeping through the hole in the
divider. It was her aunt, Salvacion Ardenio Niegas, and Chenny heard her exclaim "Nakita ko! Nakita
ko!" Chenny did not cry out for help because she was afraid. She then saw another person peering
through hole. It was her little cousin. When appellant realized that someone was watching them, he
got up and said "O, Gene!" and pretended to fix something at the door. Softly, appellant again
warned Chenny not to tell her mother about what he did to her.

Five days later, on April 2, 1998, Chenny's mother, Esterlita, arrived. She had just come from work in
Taytay, Rizal. Chenny's aunt lost no time in reporting to Esterlita what she witnessed. Fuming mad,
Esterlita roused her daughter from sleep and asked her about the incident. Chenny denied it. By
Esterlita's persistent questioning, however, Chenny finally admitted her father's dastardly act.
Forthwith, Esterlita brought her daughter to the police station where Chenny executed a sworn
statement and submitted herself to a physical and medical examination.

Dr. Manuel C. Aves, the medico-legal officer at the Philippine National Police (PNP) Regional Crime
Laboratory Office found the following:

"GENERAL AND EXTRA-GENITAL

PHYSICAL BUILD: lean built

MENTAL STATUS: coherent female

BREAST: conical
 ABDOMEN: flat

PHYSICAL INJURIES: No sign of physical injury

GENITAL

PUBIC HAIR: scanty

LABIA MAJORA: coaptated

LABIA MINORA: light pink

HYMEN: Multiple healed lacerations at 12, 2, 4, 5, 7, 9, 11 o'clock

EXTERNAL VAGINAL ORIFICE: With moderate resistance upon inserting examining

finger.

VAGINAL CANAL: prominent rugosities

CERVIX: smooth

PERI-URETHRAL AND VAGINAL SMEARS:

REMARKS: Multiple healed lacerations at 12, 2, 4, 5, 7, 9, 11 o'clock.

xxx xxx xxx"7

On May 22, 1998, the trial court found appellant guilty of the offense and sentenced him to death.
The court held:

"WHEREFORE, the foregoing considered, this Court hereby finds accused ALBERTO CHUA
alias Bert GUILTY beyond reasonable doubt of the crime of rape defined and penalized
under Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, and
sentences him to suffer the penalty of Death and to pay private complainant Chenny Chua
the amount of Fifty Thousand Pesos (P50,000.00) as moral damages and Twenty Thousand
Pesos (P20,000.00) as exemplary damages. With costs.

SO ORDERED."8

Hence this recourse. Appellant assigns the following errors:

"I THE TRIAL COURT ERRED IN METING OUT THE DEATH PENALTY ON THE
ACCUSED DESPITE THE FACT THAT THE QUALIFYING CIRCUMSTANCE OF
MINORITY WAS NOT PROPERLY ALLEGED IN THE INFORMATION. THE FACT THAT
COMPLAINANT DAUGHTER WAS DESCRIBED AS A "MINOR" IN THE INFORMATION IS
A CONCLUSION OF LAW AND NOT A STATEMENT OF FACT.

"II. THE TRIAL COURT ERRED IN ACCEPTING WITH ALACRITY ACCUSED'S PLEA OF
GUILTY TO THE OFFENSE. CHARGED."9
When the accused pleads guilty to a capital offense, Rule 116, Section 3 of the Rules on Criminal
Procedure provides the following procedure:

"Sec. 3. Plea of guilty to capital offense; reception of evidence. When the accused pleads
guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness
and full comprehension of the consequences of his plea and require the prosecution to prove
his guilt and the precise degree of culpability.

The accused may also present evidence in his behalf."10

When the accused enters a plea of guilty to a capital offense, the trial court must do the following: (1)
conduct a searching inquiry into the voluntariness of the plea and the accused's full comprehension
of the consequences thereof; (2) require the prosecution to present evidence to prove the guilt of the
accused and the precise degree of his culpability; and (3) ask the accused if he desires to present
evidence in his behalf and allow him to do so if he desires.11 This procedure is mandatory and a
judge who fails to observe it commits grave abuse of discretion.12

The essence of a plea of guilty is that the accused admits his guilt freely, voluntarily and with fill
knowledge of the consequences and meaning of his act and with a clear understanding of the
precise nature of the crime charged in the complaint or information.13 Thus, when the accused enters
a plea of guilt, the trial court must, first of all, determine the voluntariness of the said plea and
accused's comprehension of its consequences. In making such determination, the court must
conduct a searching inquiry. The inquiry is not a simple question and answer exercise; it must be
searching. To "search" means "to look into or over carefully or thoroughly in an effort to find
something."14 This looking into carefully and thoroughly, in the matter under consideration, must be
focused on: (1) the voluntariness of the plea; and (2) the full comprehension of the consequences of
said plea.15

There is no hard and fast rule as to the number and type of questions the judge may put to the
accused, or as to the earnestness with which he may conduct the inquiry. What is essential is that
the judge should, first of all, consider the age, personality, educational background, socio-economic
status and other personal circumstances of the accused confessing his guilt.16 The trial judge should
determine whether the accused had been coerced or placed under a state of duress either by actual
threats of physical harm coming from malevolent or avenging quarters, or by mistaken impressions
given, wittingly or unwittingly, by authorities or parties; whether the accused had the assistance of
competent counsel during the custodial and preliminary investigations; and whether he understood
the charges against him.17 The court should inquire if the accused knows the crime with which he is
charged and explain to him the elements of the crime and the corresponding penalty therefor. The
court may require the accused to fully narrate the incident that spawned the charges against him, or
make him reenact the manner in which he perpetrated the crime, or cause him to furnish and explain
missing details of significance18about his personal circumstances, about the commission of the crime
and events during the custodial and preliminary investigation. In doing so, all questions posed by the
judge to the accused should be in a language known and understood by the latter.19 Still, the inquiry
need not stop with the accused. The court may also propound questions to accused's counsel to
determine whether or not said counsel had conferred with, and completely explained to accused the
meaning of a plea and its consequences.20 In all cases, the bottom line is that the judge must fully
convince himself that: (1) the accused, in pleading guilty, is doing so voluntarily; and (2) he, in so
doing, is truly guilty, and that there exists a rational basis for a finding of guilt, based on his
testimony.21

In the case at bar, appellant claims that the trial court accepted his plea of guilt without following the
procedure laid down in the Rules of Court. He alleges that the court should have placed him on the
witness stand to find out if he actually understood the effect of his action and to hear his version of
the events.22

We agree.

The following transpired at the pretrial:

"SECOND CALL

PROS. SANTIAGO : Same appearance for the State, your honor.

ATTY. LADERAS : Same appearance for the accused. Your honor, may I request for a five-
minute recess to confer with the accused because he is intending to change his plea.

ON THE THIRD CALL

PROS. SANTIAGO : Same appearance, your honor.

ATTY. LADERAS : For the accused, your honor.

COURT : Is he willing to change his plea?

ATTY. LADERAS : Yes, your honor.

COURT : Do you understand that by withdrawing your former plea and entering a plea of
guilty, you will be sentenced by this court to the penalty of death?

ACCUSED : (After having conferred with counsel) Yes, your honor.

COURT : And despite that fact, you will still insist on withdrawing your former plea of NOT
GUILTY and change it to one GUILTY as charged?

ACCUSED : Not anymore, your honor.

ATTY. LADERAS : He will accept whatever will be the punishment of the court.

COURT : In other words, you are determined to admit that you are guilty as charged?

ACCUSED : Yes, your honor.

COURT : Despite the fact that the penalty of the charge carries with it the penalty of death?

ACCUSED : I cannot do anything, your honor. If that will be the verdict, your honor.

COURT : You are not being forced to admit the charge. But if you admit and enter the plea
of guilty to the charge, the court will impose the penalty of death.

ACCUSED : Yes, your honor.

COURT : You will not change your mind?

 ACCUSED : "Mahirap kalabanin ang pamilya ko."

COURT : You are sure of your decision?

ACCUSED : Yes, your honor.

COURT : Rearraign the accused.

(After the arraignment)

COURT : When this case was called for pretrial conference, accused Alberto Chua, through
counsel, manifested that he is withdrawing his former plea of NOT GUILTY and he is
changing it to one of GUILTY as charged. Rearraigned, the accused, assisted by Atty. Ma.
Cristine Laderas of the Public Attorney's Office entered a plea of GUILTY as charged. After
conducting searching inquiry into the voluntariness and full comprehension of the
consequences of his plea, the accused voluntarily manifested to the Court that he
understood all the consequences of his change of plea and that he is willing to face the
verdict of death. Considering the accused's plea of guilty to a capital offense, the prosecution
was required to present evidence to prove the guilt of the accused and the precise degree of
his culpability. SO ORDERED.

xxx xxx xxx"23

From the foregoing, it is clear that the court a quo did not probe carefully and thoroughly into the
reasons for appellant's change of plea and his comprehension of the consequences of said plea.
First of all, there was no determination of appellant's age, personality, educational background and
socio-economic status. All questions the court propounded were couched in English and yet there is
nothing in the records to show that appellant had a good comprehension, or at least, a nodding
acquaintance with the English language. As to whether the judge translated and explained his
questions to appellant in a language or dialect known and understood by the latter is not likewise
borne by the records. It is not insignificant that appellant revealed to the trial judge that it was difficult
to go against his family. This statement should have led the trial judge to inquire into the family
background and the voluntariness of appellant's guilty plea. But no questions were asked. It would
have been well for the court to go over appellant's relationship with the victim and the other family
members, the specific reason why appellant decided to change his plea, the effect of his guilty plea
on his family, and the fact that despite said plea, if his family knew that he was still to be put to
death.

Further, the trial court did not bother to explain the essential elements of the crime with which
appellant was charged. Appellant was convicted by the court a quo of incestuous rape under the first
qualifying circumstance of Article 335 of the Revised Penal Code, as amended by R.A. 7659. The
information charged him with "rape penalized under the provisions of Art. 335 of the Revised Penal
Code, as amended by R.A. 7659." It did not specify under what particular paragraph of Article 335
the charge was made. Nothing in the record shows that appellant was aware as to what specific
paragraph of the law he was being charged. As regards the penalty, the court may have repeatedly
informed appellant that his penalty was death, notwithstanding his guilty plea, but it did not disclose
the indemnity he was to pay the victim. The decision of the court ordered appellant to pay Chenny
the amount of P50,000.00 as moral damages and P20,000.00 as exemplary damages. As a result of
the court's failure to fully explain the basis of appellant's indictment, appellant was not accorded his
fundamental right to be informed of the precise nature of the accusation against him, and was
therefore denied due process.24
The trial court did not only neglect to make the searching inquiry, it also failed to inquire from
appellant whether he desired to present evidence in his behalf. This is the third requirement under
Section 3, Rule 116. The prosecution presented the victim's testimony, her sworn statement and
medico-legal report as its evidence. But when cross-examination came, appellant's counsel declined
to do so. The court merely accepted this and did not inquire into the reason why they waived cross-
examination. Given this disinterest, the court should have, at least, informed appellant that he could
present his own evidence and ask him if he desired to do so. Courts must proceed with meticulous
care wherever the punishment for the crime is in its severest form. The execution of a death
sentence is irrevocable and experience has shown that innocent persons have, at times, pleaded
guilty.25In capital offenses, the essence of judicial review is anchored on the principle that while
society allows violent retribution for heinous crimes committed against it, it always must make certain
that the blood of the innocent is not spilled, or that the guilty are not made to suffer more than their
just measure of punishment and retribution.26The prudent course to follow is to take testimony not
only to satisfy the trial judge but also to aid the Supreme Court in determining whether the accused
understood the significance and consequences of his plea.27 This is to preclude any room for
reasonable doubt in the mind of the trial court, or this Court on review, as to the possibility that there
might have been some misunderstanding by the accused of the nature of the charge to which he
pleaded guilty, and to ascertain the circumstances attendant to the commission of the crime which
justify or require the exercise of a greater or lesser degree of severity in the imposition of the
prescribed penalties.28

There is also another element of the crime overlooked by the trial court. Chenny testified that on that
day subject of the complaint-information, when appellant started peeling off her short pants, she did
not resist him. She just stared at her father knowing what he was going to do to her. She fought back
the very first time he molested her, but he forced himself on her. Since then, she did not resist him;
and that day was like the rest. Appellant was able to satisfy his lust on the girl without exerting force
or intimidation on her.

In incestuous rape cases, the victim's lack of resistance has been explained as a product of the
moral ascendancy parents exercise over their children, viz:

"x x x A rape victim's actions are oftentimes overwhelmed by fear rather than by reason. It is
this fear, springing from the initial rape, that the perpetrator hopes to build a climate of
extreme psychological terror, which would, he hopes, numb his victim into silence and
submissiveness. Incestuous rape magnifies this terror, because the perpetrator is a person
normally expected to give solace and protection to the victim. Furthermore, in incest, access
to the victim is guaranteed by the blood relationship, proximity magnifying the sense of
helplessness and degree of fear.

xxx xxx xxx

x x x [T]he rapist perverts whatever moral ascendancy and influence he has over his victim in
order to intimidate and force the latter to submit to repeated acts of rape over a period of
time. In many instances, he succeeds and the crime is forever kept on a lid. In a few cases,
the victim suddenly finds the will to summon unknown sources of courage to cry out for help
and bring her depraved malefactor to justice.

x x x The perpetrator takes full advantage of his blood relationship, ascendancy and
influence over his victim, both to commit the sexual assault and to intimidate the victim into
silence. Unfortunately for some perpetrators of incestuous rape, their victims manage to
break out from the cycle of fear and terror. x x x. . . ."29
In Philippine society, the father is considered the head of the family, and the children are taught not
to defy the father's authority even when this is abused. They are taught to respect the sanctity of
manage and to value the family above everything else. Hence, when the abuse begins, the victim
sees no reason or need to question the righteousness of the father whom she had trusted right from
the start.30 The value of respect and obedience to parents instilled among Filipino children is
transferred into the very same value that exposes them to risks of exploitation by their own
parents.31 The sexual relationship could begin so subtly that the child does not realize that it is
abnormal. Physical force then becomes unnecessary. The perpetrator takes full advantage of this
blood relationship. Most daughters cooperate and this is one reason why they suffer tremendous
guilt later on. It is almost impossible for a daughter to reject her father's advances, for children
seldom question what grown-ups tell them to do.32

But incest, no matter how despicable, hateful and revolting it is both to the victim and society, is not
a crime in our statute books. There is no law that specifically defines and penalizes incest. The case
at bar involves rape. Rape, under Article 335 of the Revised Penal Code, as amended, is committed
by having carnal knowledge of a woman: (1) by using force or intimidation; (2) when the woman is
deprived of reason or otherwise unconscious; or (3) when the woman is under twelve years of age or
is demented.33 In the instant case, the victim was not under twelve years of age or demented when
her father abused her. Neither was she deprived of reason or rendered unconscious. No force or
violence was used on her, she herself testified. As to whether there was intimidation, this element
must be viewed in the light of the victim's perception and judgment at the time of the commission of
the crime. It is addressed to the mind of the victim and is, therefore, subjective.34

There is nothing in Chenny's testimony that shows how appellant intimidated her into giving him her
body. Intimidation breaks down the victim's moral resistance and makes her submit to the evil in
order to escape what she conceives to be a greater evil.35 There is no proof of what greater evil
Chenny had to escape that made her submit to her father's carnal desires. The mere fact that
appellant is her father and therefore exercises moral ascendancy over his daughter cannot ipso
facto lead this Court to conclude that there was intimidation. There must be some evidence of the
intimidation employed on the victim as to indubitably show how vitiated the victim's consent was to
the violation of her womanhood. After all, rape is committed against or without the consent of the
victim.36 The very first time appellant violated Chenny, he did not use any weapon to threaten her
into submission. Neither did appellant threaten her with blackmail or words of terror. He warned her
not to tell her mother because if she did, her mother will surely kill him and she will land in jail and no
one will take care of Chenny and her younger brothers and sisters. These words of doom may give
the reason why Chenny did not report the incident or incidents to her mother, her aunt or other
people; but they do not show how they brainwashed her into giving in to appellant's lustful desires.
The doomsday scenario is not per se sufficient to establish the psychological terror that made the
girl submit to her father. The court cannot rely on presumptions of moral ascendancy,37 for in this
new century where mores change, it could well be that in certain cases, the traditional moral
ascendancy of a parent over children is a myth. Presumptions of moral ascendancy cannot and
should not prevail over the constitutional presumption of innocence. Force or intimidation is an
element of the crime of rape. There must, therefore, be proof beyond reasonable doubt that the
victim did not resist her defloration due to the moral ascendancy of the accused.

IN VIEW WHEREOF, the judgment appealed from is set aside. The case is remanded to the trial
court for rearraignment and thereafter, should the accused appellant enter a plea of "guilty," for
reception of evidence for the prosecution, and should the accused-appellant so desire, for reception
likewise of evidence on his part, all in accord with the guidelines set forth in this Decision.

SO ORDERED.
Davide Jr., C.J., Bellosillo, Melo, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo,
Buena, Ynares-Santiago, Sandoval-Gutierrez and De Leon Jr., JJ., concur.

SYLLABI/SYNOPSIS

THIRD DIVISION

[G.R. No. 134503. July 2, 1999]

JASPER AGBAY, petitioner, vs. THE HONORABLE DEPUTY

OMBUDSMAN FOR THE MILITARY, SPO4 NEMESIO
NATIVIDAD, JR. and SPO2 ELEAZAR M. SOLOMON, respondents.

DECISION
GONZAGA-REYES, J.:

This petition for certiorari seeks to nullify the Resolution of the Deputy Ombudsman for the
Military dated 19 January 1998[1] which recommended the dismissal of the criminal complaint
filed by petitioner against herein private respondents for violation of Article 125 of the Revised
Penal Code for delay in the delivery of detained persons, and the Order of April 13 1998 [2] which
denied his motion for reconsideration.
The pertinent facts leading to the filing of the petition at bar are as follows:
On September 7, 1997, petitioner, together with a certain Sherwin Jugalbot, was arrested and
detained at the Liloan Police Station, Metro Cebu for an alleged violation of R.A. 7610, the
Special Protection of Children Against Child abuse, Exploitation and Discrimination Act. [3] The
following day, or on September 8, 1997, a Complaint for violation of R.A. 7610 was filed
against petitioner and Jugalbot before the 7th Municipal Circuit Trial Court of Liloan, Metro
Cebu by one Joan Gicaraya for and in behalf of her daughter Gayle[4] The complaint, insofar as
pertinent, reads as follows:

That on the 7th day of September 1997 at Sitio Bonbon, Brgy. Catarman, Liloan,
Metro Cebu, Philippines and within the Preliminary Jurisdiction of this Honorable
Court, the above-named accused, did then and there, willfully, feloniously and
unlawfully, conspiring, confederating, helping with one another, while accused
JASPER AGBAY manipulating to finger the vagina of GAYLE FATIMA
AMIGABLE GICAYARA, his companion block the sight of the Private Complainant,
Mrs. JOAN A. GICAYARA, while on board a tricycle going their destinations. Upon
initial investigation of the Bgy, Captain of Bgy. Catarman, accused SHERWIN
JUGALBOT was released and accused JASPER AGBAY is presently detain Liloan
Police Station Jail. Medical Certificate issued from Don Vicente Sotto Memorial
Medical Center, Cebu City is hereto attached.

On September 10, 1997, counsel for petitioner wrote the Chief of Police of Liloan
demanding the immediate release of petitioner considering that the latter had failed to deliver the
detained Jasper Agbay to the proper judicial authority within thirty-six (36) hours from
September 7, 1997.[5] Private respondents did not act on this letter and continued to detain petitioner. [6]
On September 12, 1997, the 7th Municipal Circuit Trial Court of Liloan, Metro Cebu issued
an order, denominated as Detention During the Pendency of the Case, committing petitioner to
the jail warden of Cebu City.[7] Five (5) days later, or on September 17, 1997, petitioner was
ordered released by the said court after he had posted bond.[8]
On September 26, 1997, petitioner filed a complaint for delay in the delivery of detained
persons against herein private respondents SPO4 Nemesio Natividad, Jr., SPO2 Eleazar M.
Salomon and other unidentified police officers stationed at the Liloan Police Substation, before
the Office of the Deputy Ombudsman for the Visayas.[9]
Regarding the complaint for violation of R.A. 7610, it is alleged by petitioner that on
November 10, 1997, the 7th MCTC of Liloan, Metro Cebu issued a resolution containing the
following dispositive portion:

WHEREFORE, finding probable cause for the crime in Violation of Republic Act
7610, it is hereby recommended that an INFORMATION be filed against the two
aforenamed accused.

Forward the record of this case to the Provincial Fiscals Office for appropriate
action.[10]

By virtue of Memorandum Circular No. 14, Series of 1995, dated 10 October 1995 of the
Office of the Ombudsman,[11] the case for delay in delivery filed by petitioner against herein private
respondents before the Deputy Ombudsman for the Visayas was transferred to the Deputy Ombudsman for the
Military for its proper disposition. Thus, it was this office which acted on the complaint, now denominated as OMB-
VIS-CRIM-97-0786, and which issued the questioned Resolution dated January 19, 1998 recommending its
dismissal against herein private respondents. Petitioner moved for reconsideration of this Resolution but this motion
was denied in an Order dated April 13, 1998.

Hence, this petition for certiorari.

The grounds relied upon in the present petition[12] are as follows:
I.

THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN

RELYING ON MEMORANDUM CIRCULAR NO. 14, SERIES OF 1995, DATED
10 OCTOBER 1995, OF THE OFFICE OF THE OMBUDSMAN IN HOLDING
THAT IT HAS COMPETENCE TO ACT ON THE ABOVE-ENTITLED CASE
BEFORE IT, THE SAID CIRCULAR BEING UNCONSTITUTIONAL AND
ILLEGAL, HENCE, NULL AND VOID.
II.

THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN NOT

HOLDING THAT IT IS BEYOND ITS COMPETENCE TO DETERMINE
WHETHER OR NOT THE MUNICIPAL CIRCUIT TRIAL COURT OF LILOAN-
COMPOSTELA HAS IN FACT NO JURISDICTION TO TRY THE CASE FILED
AGAINST HEREIN PETITIONER.
III.

THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN NOT

HOLDING THAT THE MCTC, WHILE HAVING AUTHORITY TO CONDUCT A
PRELIMINARY INVESTIGATION, IS NOT THE PROPER JUDICIAL
AUTHORITY CONTEMPLATED IN ARTICLE 125 OF THE REVISED PENAL
CODE AND, HENCE, THE FILING OF THE COMPLAINT BEFORE IT FOR THE
PURPOSE OF CONDUCTING A PRELIMINARY INVESTIGATION DID NOT
INTERRUPT THE PERIOD PRESCRIBED BY ART. 125.
IV.

THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN

HOLIDING THAT THE ISSUE OF THE VALIDITY OF THE ORDER OF
DETENTION IS IRRELEVANT TO THE ISSUE OF CRIMINAL LIABILITY OF
PRIVATE RESPONDENTS FOR DELAY IN THE DELIVERY OF DETAINED
PERSONS.
V.

THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN

HOLDING THAT THE DUTY OF PRIVATE RESPONDENTS TO FILE THE
NECESSARY COMPLAINT IN COURT WAS FULFILLED WHEN THEY FILED
A FORMAL COMPLAINT ON 8 SEPTEMBER 1997 WITH THE 7TH MCTC OF
LILOAN-COMPOSTELA.

On the first issue, petitioner argues that due to the civilian character of the Philippine
National Police, the Office of the Deputy Ombudsman for the Military, by virtue of the
description of the Office, has no competence or jurisdiction to act on his complaint against
private respondents who are members of the PNP. Petitioner also questions the constitutionality
of Memorandum Circular No. 14 insofar as it purports to vest the Office of the Deputy
Ombudsman for Military Affairs with jurisdiction to investigate all cases against personnel of the
Philippine National Police.
There is no dispute as to the civilian character of our police force. The 1987 Constitution, in
Section 6, Article XVI, has mandated the establishment of one police force, which shall be
national in scope and civilian in character (underscoring supplied). Likewise, R.A. 6975[13] is
categorical in describing the civilian character of the police force.[14] The only question now is
whether Memorandum Circular No. 14, in vesting the Office of the Deputy Ombudsman for the
Military with jurisdiction to investigate complaints against members of the PNP, violates the
latters civilian character.
As opined by the Office of the Solicitor General in its Comment dated 7 December 1998 [15],
the issue as to whether the Deputy Ombudsman for the Military has the authority to investigate
civilian personnel of the government was resolved in the affirmative in the case of Acop v. Office
of the Ombudsman.[16] In that case, the petitioners, who were members of the Philippine National
Police questioned the jurisdiction of the Deputy Ombudsman to investigate the alleged shootout
of certain suspected members of the Kuratong Baleleng robbery gang; this Court held that:

The deliberations on the Deputy for the military establishment do not yield conclusive
evidence that such deputy is prohibited from performing other functions or duties
affecting non-military personnel. On the contrary, a review of the relevant
Constitutional provisions reveal otherwise.

As previously established, the Ombudsman `may exercise such other powers or

perform such functions or duties as Congress may prescribe through
legislation. Therefore, nothing can prevent Congress from giving the Ombudsman
supervision and control over the Ombudsmans deputies, one being the deputy for the
military establishment. In this light, Section 11 of R.A. No. 6770 provides:

SEC. 11. Structural Organization.- The authority and responsibility for the exercise of
the mandate of the Office of the Ombudsman and for the discharge of its powers and
functions shall be vested in the Ombudsman, who shall have supervision and control
of the said Office.

While Section 31 thereof declares:

SEC, 31. Designation of Investigators and Prosecutors.- The Ombudsman may utilize
the personnel of his office and/or designate or deputize any fiscal, state prosecutor to
assist in the investigation and prosecution of certain cases. Those designated or
deputized to assist him herein shall be under his supervision and control.

Accordingly, the Ombudsman may refer cases involving non-military personnel for
investigation by the Deputy for Military Affairs. In these cases at bench, therefore, no
irregularity attended the referral by the Acting Ombudsman of the Kuratong
Baleleng case to respondent Casaclang who, in turn, created a panel of investigators.[17]
 The cited case is determinative of the issue. However, petitioner, in his Reply to Comment
dated February 1, 1999, argues that the ruling in the Acop case is not on all fours with the case at
bar[18].Petitioner states that the doctrine laid down in the said case is simply that the Ombudsman
may refer cases involving non-military personnel for investigation by the Deputy for Military
Affairs. This doctrine, petitioner argues, applies only to isolated or individual cases involving
non-military personnel referred by the Ombudsman to the Deputy for Military Affairs and does
not apply when, as in this case, there is a wholesale or indiscriminate referral of such cases to the
Deputy Ombudsman for Military Affairs in the form of an Office Memorandum Circular.
Petitioners arguments do not convince as there is no basis for the distinction.
There is no basis in the above-cited decision to limit the referral of cases involving non-
military personnel to the Deputy Ombudsman for Military Affairs to isolated or individual cases.
The Office of the Ombudsman, in issuing Memorandum Circular No. 15, is simply
exercising the power vested in the Ombudsman to utilize the personnel of his office and/or
designate or deputize any fiscal, state prosecutor or lawyer in the government service to act as
special investigator or prosecutor to assist in the investigation and prosecution of certain cases.
This Court, absent any grave abuse of discretion, may not interfere with the exercise by the
Ombudsman of his power of supervision and control over the said Office.
Petitioner further argues that Memorandum Circular No. 14 violates the clear intent and
policy of the Constitution and of R.A. 6975 to maintain the civilian character of the police force
and would render nugatory and meaningless the distinction between cases involving civilian and
military personnel and the creation of separate divisions of the Ombudsman.[19]
Said contentions are misplaced.
The Deputy Ombudsman for the Military, despite his designation as such, is by no means a
member of the military establishment. The said Office was established to extend the Office of the
Ombudsman to the military establishment just as it champions the common people against
bureaucratic indifference. The Office was intended to help the ordinary foot soldiers to obtain
redress for their grievances against higher authorities and the drafters of the Constitution were
aware that the creation of the Office, which is seemingly independent of the President, to
perform functions which constitutionally should be performed by the President, might be in
derogation of the powers of the President as Commander-In-Chief of the Armed Forces[20]
It must be borne in mind that the Office of the Ombudsman was envisioned by the framers
of the 1987 Constitution as the eyes and ears of the people[21] and a champion of the
citizen.[22] Sec. 12, Art. XI of the 1987 Constitution describes the Ombudsman and his deputies as
protectors of the people. Thus, first and foremost, the Ombudsman and his deputies, including
the Deputy Ombudsman for the Military owe their allegiance to the people and ordinary citizens;
it is clearly not a part of the military. We fail to see how the assumption of jurisdiction by the
said office over the investigation of cases involving the PNP would detract from or violate the
civilian character of the police force when precisely the Office of the Ombudsman is a civilian
office.
The other issues raised by petitioner concerns the application of Art. 125 of the Revised
Penal Code which provides as follows:
Art. 125. Delay in the delivery of detained persons to the proper judicial authorities. -
The penalties provided in the next preceding article shall be imposed upon the public
officer or employee who shall detain any person for some legal ground and shall fail
to deliver such person to the proper judicial authorities within the period of: twelve
(12) hours, for crimes or offenses punishable by light penalties, or their equivalent;
eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or
their equivalent; and thirty-six hours (36) hours, for crimes or offenses punishable by
afflictive or capital penalties, or their equivalent.

In every case, the person detained shall be informed of the cause of his detention and
shall be allowed, upon his request, to communicate and confer at any time with his
attorney or counsel.

In the case at bar, petitioner was arrested and detained at the Liloan Police Station on 7
September 1997 for an alleged violation of R.A. 7610, specifically section 5(b) thereof[23]. This
crime carries a penalty of reclusion temporal in its medium period to reclusion perpetua, an afflictive
penalty. Under these circumstances, a criminal complaint or information should be filed with the proper judicial
authorities within thirty six (36) hours of his arrest.

As borne by the records before us the mother of private complainant, Joan Gicaraya, filed a
complaint on 8 September 1997 against petitioner for violation of R.A. 7610 before the 7th
Municipal Circuit Trial Court of Liloan, Metro Cebu.
Petitioner contends that the act of private complainant in filing the complaint before the
MCTC was for purposes of preliminary investigation as the MCTC has no jurisdiction to try the
offense. This act of private complainant petitioner argues, was unnecessary, a surplusage which
did not interrupt the period prescribed by Art. 125[24] considering that under the Rules it is the
Regional Trial Court which has jurisdiction to try the case against him. As such, upon the lapse
of the thirty-six hours given to the arresting officers to effect his delivery to the proper Regional
Trial Court, private respondents were already guilty of violating Art. 125. Thus, petitioner
argues, when the Judge-Designate of the 7th MCTC issued a Commitment Order on September
12, 1997, he was acting contrary to law since by then there was no basis for the continued
detention of petitioner.[25]
In addressing the issue, the Office of the Deputy Ombudsman for the Military in its 13 April
1998 Order, stated that the duty of filing the corresponding complaint in court was fulfilled by
respondent when the formal complaint was filed on September 8, 1997 with the 7th MCTC of
Liloan-Compostela, barely 20 hours after the arrest of herein complainant of September 7,
1997.[26] The Solicitor General, for his part, argues that while a municipal court judge may
conduct preliminary investigations as an exception to his normal judicial duties, he still retains
the authority to issue an order of release or commitment. As such, upon the filing of the
complaint with the MCTC, there was already compliance with the very purpose and intent of
Art. 125[27]
The core issue is whether the filing of the complaint with the Municipal Trial Court
constitutes delivery to a proper judicial authority as contemplated by Art. 125 of the Revised
Penal Code.
 Article 125 of the Revised Penal Code is intended to prevent any abuse resulting from
confining a person without informing him of his offense and without permitting him to go on
bail[28]. More specifically, it punishes public officials or employees who shall detain any person
for some legal ground and shall fail to deliver such person to the proper judicial authorities
within the periods prescribed by law. The continued detention of the accused becomes illegal
upon the expiration of the periods provided for by Art. 125 without such detainee having been
delivered to the corresponding judicial authorities[29]
The words judicial authority as contemplated by Art. 125 mean the courts of justices or
judges of said courts vested with judicial power to order the temporary detention or confinement
of a person charged with having committed a public offense, that is, the Supreme Court and other
such inferior courts as may be established by law.[30]
Petitioner takes great pains in arguing that when a municipal trial court judge, as in the
instant case, conducts a preliminary investigation, he is not acting as a judge but as a fiscal. In
support, petitioner cites the cases of Sangguniang Bayan ng Batac, Ilocos Norte vs. Albano, 260
SCRA 561, and Castillo vs. Villaluz, 171 SCRA 39, where it was held that when a preliminary
investigation is conducted by a judge, he performs a non-judicial function as an exception to his
usual duties. Thus, petitioner opines, the ruling in Sayo v. Chief of Police of Manila, 80 Phil. 862,
that the city fiscal is not the proper judicial authority referred to in Art. 125 is applicable.
Petitioners reliance on the cited cases is misplaced. The cited cases of Sangguniang
Bayan and Castillo dealt with the issue of whether or not the findings of the Municipal Court
Judge in a preliminary investigation are subject to review by provincial and city fiscals. There
was no pronouncement in these cases as to whether or not a municipal trial court, in the exercise
of its power to conduct preliminary investigations, is a proper judicial authority as contemplated
by Art. 125.
Neither can petitioner rely on the doctrine enunciated in Sayo vs. Chief of Police,
supra, since the facts of this case are different. In Sayo, the complaint was filed with the city
fiscal of Manila who could not issue an order of release or commitment while in the instant case,
the complaint was filed with a judge who had the power to issue such an order. Furthermore, in
the Resolution denying the Motion for Reconsideration of the Sayo case[31], this Court even made
a pronouncement that the delivery of a detained person is a legal one and consists in making a
charge or filing a complaint against the prisoner with the proper justice of the peace or judge of
Court of First Instance in provinces, and in filing by the city fiscal of an information with the
corresponding city courts after an investigation if the evidence against said person warrants.
The power to order the release or confinement of an accused is determinative of the issue. In
contrast with a city fiscal, it is undisputed that a municipal court judge, even in the performance
of his function to conduct preliminary investigations, retains the power to issue an order of
release or commitment[32]. Furthermore, upon the filing of the complaint with the Municipal Trial
Court, the intent behind Art. 125 is satisfied considering that by such act, the detained person is
informed of the crime imputed against him and, upon his application with the court, he may be
released on bail[33]. Petitioner himself acknowledged this power of the MCTC to order his release
when he applied for and was granted his release upon posting bail[34]. Thus, the very purpose
underlying Article 125 has been duly served with the filing of the complaint with the MCTC. We
agree with the position of the Ombudsman that such filing of the complaint with the MCTC
interrupted the period prescribed in said Article.
 Finally, we note that it was the mother of private complainant who filed the complaint
against petitioner with the 7th MCTC of Liloan, Metro Cebu. If there was any error in this
procedure, private respondents should not be held liable. In the same manner, petitioners
argument that the controversial orders issued by the MCTC are contrary to law does not give rise
to criminal liability on the part of the respondents. Respondent police officers may have rendered
themselves open to sanctions if they had released petitioners without the order of the court,
knowing fully well that a complaint was already filed with it.
WHEREFORE, finding no grave abuse of discretion in the issuance of the assailed January
19, 1998 Resolution and the April 13, 1998 Order of the Office of the Deputy Ombudsman for
the Military, the Court resolves to DISMISS the petition. No pronouncement as to costs.
SO ORDERED.
Vitug, (Acting Chairman), Panganiban, and Purisima, JJ., concur.
Romero, J., abroad, on official business leave.

[1]
Rollo, pp. 42-43.
[2]
Rollo, pp. 34-36.
[3]
Rollo, p. 6.
[4]
Annex B of Petition; Rollo, p. 37.
[5]
Annex C of Petition; Rollo, p. 38
[6]
Rollo, p. 7.
[7]
Annex D of Petition: Rollo, p. 39.
[8]
Annex E of Petition; Rollo, p. 40.
[9]
Annex F of Petition; Rollo, p. 41.

[10]
Rollo, p. 8.

[11]
Which reads, in part, as follows:
In pursuance of the Offices mandate to promote efficient service to the people and conformably with the powers
vested in the Ombudsman under Section 15, par. 10 and Section 31 of RA 6770, the Deputy Ombudsman for the
Military shall continue to investigate all cases against personnel of the PNP, BFP, and BJMP.
[12]
Rollo, pp. 9-10.
[13]
Entitled, An Act Establishing the Philippine National Police Under a Reorganized Department of the Interior and
Local Government and For Other Purposes, otherwise known as the Department of the Interior and Local
Government Act of 1990.
[14]
R.A. 6975, Section 2. Declaration of Policy.--It is hereby declared that the policy of the State to promote peace
and order, ensure public safety and further strenghten local government capability aimed towards the effective
delivery of the basic services to the citizenry through the establishment of a highly efficient and competent police
force that is national in scope and civilian in character. xxx
The police force shall be organized, trained and equipped primarily for the performance of police functions. Its
national scope and civilian character shall be paramount. xxx
[15]
Rollo, pp. 79-81.
[16]
248 SCRA 566.
[17]
Id. pp. 587-588
[18]
Rollo, p. 92.
[19]
Reply; Rollo, pp. 95-96.
[20]
Record of the Constitutional Commission, vol. 2, p. 318-320 (hereinafter 2 Record).
[21]
2 Record, p. 267.
[22]
2 Record, p. 268.
[23]
Sec. 5. Child Prostitution and Other Sexual Abuse.-
xxx
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:
xxx
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or
subjected to other sexual abuse:xxx
[24]
Rollo, p. 98.
[25]
Rollo, p. 27.
[26]
Rollo, p. 35.
[27]
Comment, p. 83.
[28]
Laurel v. Misa, 76 Phil 372.
[29]
Lino v. Fugoso, 77 Phil. 933.
[30]
Sayo v. Chief of Police of Manila, 80 Phil 859 citing Section 1, Article VIII of the Constitution.
[31]
80 Phil. 875.
[32]
Rule 112, Sec. 6 (b), Rules of Court. When warrant of arrest may issue.- (a) By the Regional Trial Court.-Upon
the filing of an information, the Regional Trial Court may issue a warrant for the arrest of the accused.
(b) By the Municipal Trial Court.- If the municipal trial judge conducting the preliminary investigation is satisfied
after an examination in writing and under oath of the complainant and his witnesses in the form of searching
questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under
immediate custody in order not to frustrate the ends of justice, he shall issue a warrant of arrest.
[33]
Rule 112, Sec. 5, Rules of Court. Duty of investigating judge.- Within ten (10) days after the conclusion of the
preliminary investigation, the investigating judge shall transmit to the provincial or city fiscal, for appropriate
action, the resolution of the case, which shall include: (a) the warrant, if the arrest is by virtue of a warrant; (b) the
affidavits and other supporting evidence of the parties; (c) the undertaking or bail of the accused; (d) the order of
release of the accused and the cancellation of his bail bond, if the resolution is for the dismissal of the complaint.

xxx
Rule 114, Section 4, Rules of Court. Bail, a matter of right.- All persons in custody shall: (a) before or after
conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities and Municipal
Circuit Trial Court; and (b) before conviction by the Regional Trial Court of an offense not punishable by
death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right, with sufficient sureties, or be
released on recognizance as prescribed by law or this Rule.
[34]
Rollo, p. 40.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 141176 May 27, 2004

ELI LUI and LEO ROJAS, petitioners,

vs.
SPOUSES EULOGIO and PAULINA MATILLANO, respondents.

DECISION

CALLEJO, SR., J.:

This is a petition for review on certiorari of the Decision1 of the Court of Appeals in CA-G.R. CV No.
44768 which reversed and set aside the decision of the Regional Trial Court of Bansalan, Davao del
Sur, Branch 21.2

The Antecedents

Sometime in September 1987, then seventeen-year-old Elenito Lariosa visited his aunt, his fathers
older sister, Paulina Lariosa Matillano, at Lily Street, Poblacion Bansalan, Davao del Sur. On May 2,
1988, Lariosawas employed as a laborer at the Davao United Products Enterprise store, with a
monthly salary of P800.00. The store was owned by Leong Shiu Ben and King Kiao and was located
at the corner of Monteverde and Gempesaw Streets, Davao City. Lariosa was tasked to close the
store during lunchtime and after store hours in the afternoon. Ben himself opened the store in the
mornings and after lunchtime. Adjacent to the said store was another store owned by Kiaos son, Eli
Lui, who also happened to be Bens nephew. Aside from Lariosa, Ben and Kiao employed Maximo
Pagsa and Rene Malang.

Lariosa chose to live in the house of Kiao. Lariosa fed the dogs of his employer every morning
before going to work and in the afternoon, in exchange for free meals and lodging. There were
occasions when Lariosa stayed in the house of Pagsa and Malang and left some of his things with
them. Lariosa deposited his savings with the Mindanao Savings Bank in Bansalan.

On October 17, 1988, Lariosa was taken ill and was permitted to take the day off. He went to the
house of his aunt, Paulina Matillano, and her husband Eulogio Matillano in Bansalan City, where he
rested until the next day, October 18, 1988. Lariosa reported for work the day after, or on October
19, 1988, but Kiao told him that his employment was terminated. Lariosa was not paid his salary for
the month of October. Kiao warned Lariosa not to report the matter to the Department of Labor.
Lariosa decided to return to Bansalan without retrieving his things from Kiaos house.
On October 27, 1988, Lariosa returned to Davao City and was able to collect his backwages from
Ben in the amount of P500.00. Lariosa withdrew his savings from the Mindanao Savings Bank in
Bansalan City and on November 1, 1988, applied for a job at his cousins place, at Quimpo
Boulevard, Davao City. He bought a radio cassette for P2,500.00 and a pair of Rayban sunglasses
for P900.00.

On November 3, 1988, Lariosa went to the house of his fiancee, Nancy, at New Matina, Davao City,
but returned to Bansalan on the same day. On November 4, 1988, he returned to Nancys house
and stayed there until the next day, November 5, 1988.

That day, Ben informed his nephew, Eli Lui, that he had lost P45,000.00 in cash at the store. Ben
reported the matter to NBI Senior Agent Ruperto Galvez, and forthwith executed an affidavit wherein
he alleged that after Lariosas employment was terminated on October 19, 1988, he discovered that
he had lost P45,000.00 in cash. He suspected that Lariosa was the culprit because the latter, as a
former employee, had a duplicate key to the side door of the United Products Enterprise Store.

At 9:00 a.m. on November 6, 1988, a Sunday, Lariosa went to the house of Pagsa and Malang to
retrieve his things. The two invited Lariosa to go with them to the beach, and when Lariosa agreed,
they borrowed Luis Ford Fierra for their transportation. The vehicle stopped at the Almendras Hall
where Pagsa alighted on the pretext that he was going to buy fish. Lariosa, Rene, and his wife
remained in the Fierra. Pagsa contacted Lui and informed the latter that Lariosa was with him.

After about an hour, Lui arrived on board a vehicle. With him were Pagsa and two others, Alan
Mendoza and Henry Tan. Lui told Lariosa that he wanted to talk, and asked the latter to go with him.
Pagsa urged Lariosa to go along with Lui. Lariosa agreed and boarded Luis vehicle. The car
stopped in front of Luis house, where the latter alighted and went inside, while his companions and
Lariosa remained in the car. When Lui returned, he was armed with a 9 mm. caliber gun and poked
Lariosa with the weapon. He warned Lariosa not to run, otherwise, he would be killed. The group
went to Bens house to get the keys to the store. Ben joined them as they drove towards the store.

Lui mauled Lariosa and tried to force the latter to admit that he had stolen Bens money. Lariosa
refused to do so. Lui then brought Lariosa to the comfort room of the store and pushed his face into
the toilet bowl, in an attempt to force him into confessing to the crime. Lariosa still refused to admit to
anything. Lui then made a telephone call to the Metrodiscom (PNP) based in Davao City.

Sgt. Alberto Genise of the Metrodiscom (PNP) issued Mission Order No. MRF-A-004-88 dated
November 6, 1988, directing Pat. Leo Rojas "to follow up a theft case committed in Davao City from
12:30 p.m. to 5:00 p.m." Rojas was directed to coordinate with the nearest PNP headquarters and/or
stations. He was authorized to carry his firearm for the mission. He then left the police station on
board a police car and proceeded to the corner of Magsaysay and Gempesaw Streets.

In the meantime, a police car arrived at the store with two policemen on board. One of them
handcuffed Lariosa at gunpoint and ordered him to open the store with the use of the keys. As
Lariosa opened the lock as ordered, one of Luis companions took his picture. Another picture was
taken as Lariosa held the door knob to open the door. Lariosa was then boarded in the police car
and brought to the corner of Magsaysay and Gemphesaw Streets where he was transferred to the
police car driven by Rojas. He was brought to the Metrodiscom headquarters. Lui once more mauled
Lariosa, still trying to force the latter to confess that he stole P45,000.00 from his uncle and to reveal
what he did with the money. When a policeman asked him where he slept the night before, Lariosa
replied that he spent the night in the house of his girlfriends parents at New Matina, Davao City. The
policemen brought Lariosa there, where they asked Nancy if Lariosa had left anything while he slept
thereat. Nancy replied that Lariosa had left a radio cassette and a pair of sunglasses. The policemen
took these and brought Lariosa back to the Metrodiscom headquarters where Lui and his two
companions were waiting.

Lui asked Lariosa where he stayed when he went to Bansalan, and Lariosa replied that he used to
stay in the house of his aunt and uncle, the Spouses Matillano, in Lily Street, Poblacion Bansalan.
Rojas and Lui then brought Lariosa, with his hands still handcuffed, to a car. Luis companions, Alan
Mendoza and Henry Tan boarded another car and proceeded to the Matillano residence.

Without prior coordination with the Bansalan PNP, Rojas, who was in civilian clothes, Lui, Tan and
Mendoza arrived at the house of the Spouses Matillano at about 3:00 p.m, with the handcuffed
Lariosa in tow. With handguns drawn, they kicked the door to the kitchen and gained entry into the
house. They then proceeded to the sala where they found Lariosas aunt, Paulina Matillano. In the
adjacent room were Julieta, Lariosas sister, Paulinas daughter-in-law, Virginia, the latters sister,
Erlinda, and a seven-month-old baby. Paulina was shocked. Rojas told Paulina, "Mrs., we are
authorities. We are here to get something." Paulina remonstrated, "Why are you meddling
(manghilabot)?"

Lui poked his gun at Paulina and warned her not to talk anymore because something might happen.
He then said, "All right, where is your aparador because we are getting something." Paulina told Lui
to wait for her husband Eulogio. Lui ignored her protest and told her that they were in a hurry.
Paulina was then impelled to bring Lui and his two companions, Mendoza and Tan, to the second
floor where her aparador was located. Rojas and the handcuffed Lariosa remained in the sala. Lui
and his two companions then took two mats and two pairs of ladies shoes belonging to Paulina and
Eulogio, two pairs of pants, leather shoes, two t-shirts and two polo shirts which belonged to the
latters children. They also ordered Paulina to open a chest and when she did, Lui and his
companions took her old Bulova wristwatch, necklace, ring and old coins. Lui and his two
companions then went down to the ground floor. When Julieta went out of the room, one of Luis
companions recognized her as Lariosas sister. Lui and his companions brought her along with them
as they left the house.

Paulina was so unnerved by the incident. Her vision blurred, her stomach ached and she was on the
verge of losing consciousness. Concerned, Erlinda massaged Paulinas stomach. However, Erlinda
had to leave because she was worried about her mother. Paulina then went to the kitchen, prepared
hot water and put a soothing ointment on her stomach to relieve the pain.

In the meantime, Lui and his companions proceeded to the Bansalan Police Station and caused an
entry in the police blotter at 3:20 p.m. that he had recovered the following items from the Matillano
residence -- one pair of colored blue pants valued at P89.00; one floor mat costing P290.00; a pair of
black ladies shoes worth P126.00; and another pair of ladies shoes worth P69.00.

At 4:30 p.m., Paulina reported to the barangay captain that persons identifying themselves as
policemen had gained entry into their house and took the following: two polo shirts; two t-shirts; two
pairs of pants; two floor mats; two pairs of ladies shoes; one Bulova wristwatch; one necklace; one
ring; and old coins.3

At 7:35 p.m., Eulogio Matillano made an entry in the Bansalan police blotter that earlier that day, at
4:00 p.m., Rojas took the following from his house: two polo shirts; two t-shirts; 2 pairs of pants; two
floor mats; two pairs of ladies shoes; 1 Bulova wristwatch; 1 necklace; one ring; and, old coins,
without his and his wifes consent and without a search warrant.4 In the meantime, Doroteo Barawan,
officer-in-charge of the Office of the Barangay Captain, filed a complaint against Kim Kiao, et al.,
based on the complaint of Paulina, docketed as Barangay Case No. 168.5
On November 8, 1988, Lariosa executed an uncounselled confession where he stated that he
stole P40,000.00 on October 15, 1988 from the Davao United Products, and that he used part of the
money to buy appliances, a Sony cassette tape-recorder, two pairs of ladies shoes, a Seiko
wristwatch, two pairs of maong pants, Rayban sunglasses and floor mats.6

On November 16, 1988, an Information was filed in the Regional Trial Court of Davao City, charging
Lariosa with robbery with force upon things. The case was docketed as Criminal Case No.
17,136,88.7 The trial court rendered judgment on June 14, 1989, acquitting Lariosa of the crime
charged on reasonable doubt. The trial court held that Lui procured Lariosas confession through
force and intimidation, in connivance with police authorities.8 The trial court, likewise, found that Lui
had an ulterior motive for charging Lariosa of robbery:

What would have been the possible motive of complainant in putting the burden of this
charged against the accused despite want of any appreciable evidence, can be gathered in
the record, as indicating the fear of complainant, that the accused will file a complaint against
him in the Department of Labor for illegally dismissing him in his employment, without any
sufficient legal grounds and basis. This unfounded complaint was intended to support
complainants ground against any possible complaint, the accused might file against him with
the Department of Labor by way of anticipation.9

On motion of Lariosa, the trial court ordered the return of the following exhibits:

Accordingly and conformably with the judgment of this court dated June 14, 1989, one
Eulogio Matillano, accuseds uncle, is hereby allowed to get or to retrieve exhibits "H," "I,"
"J," "K," "L," and "M," consisting of Sony Cassette with serial no. W3658; Rayban
sunglasses; two (2) bundles of floor mat; two (2) pairs of pants; two (2) pairs of ladies shoes;
and Seiko Actus wristwatch.10

Meanwhile, Paulina Matillano filed a criminal complaint for robbery against Lui, Peter Doe, John Doe
and Alan Mendoza. An Information was, thereafter, filed against them in the Municipal Circuit Trial
Court of Bansalan, Davao del Sur, and the case was docketed as Criminal Case No. 880-B. On
December 13, 1988, the court issued a warrant for the arrest of the accused therein. Upon
reinvestigation, however, the Provincial Prosecutor issued a Resolution dated March 31, 1989,
recommending that the case be dismissed for insufficiency of evidence, but that the charges be
forwarded to the Judge Advocate Generals Office for possible administrative sanctions against
Rojas.

WHEREFORE, in view of the foregoing, it is respectfully recommended that the complaint against
the respondents Eli Lui be dismissed for insufficiency of evidence. Considering that Pat. Leo Rojas is
a member of the Integrated National Police, this office is without jurisdiction to entertain the
complaint against him pursuant to Presidential Decree No. 1850. Therefore, let the complaint against
Pat. Leo Rojas, together with its annexes, including a copy of the resolution of the undersigned, be
forwarded to the Judge Advocate Generals Office at Camp Catitipan, Davao City, for whatever
action it may take.11

The complaint was docketed as Administrative Case No. 92-0020. The National Police Commission,
thereafter, rendered a decision exonerating Rojas of administrative liability for the complainants
failure to substantiate the charges.12 The Commission held that Rojas was merely complying with the
mission order issued to him when he accompanied Lui and the latters two companions to the
Matillano residence.
In a Resolution dated August 25, 1989, then Secretary of Justice Silvestre H. Bello III dismissed the
petition for review of the Provincial Prosecutors resolution filed by Paulina Matillano. The Secretary
of Justice, likewise, denied a motion for reconsideration thereon.

In a parallel development, Lariosas parents, as well as Paulina Matillano, filed a complaint for
robbery, violation of domicile, unlawful arrest and/or arbitrary detention against Leo Rojas, Eli Lui, et
al., with the Commission of Human Rights docketed as CHR Case No. RFO No. 88-0207-DS. In a
Resolution dated December 4, 1989, the Regional Office of the Commission recommended, thus:

WHEREFORE, premises considered, we are recommending that there is sufficient prima

facie evidence:

1. to indict Eli Lui for unlawful arrest as defined under Art. 369 of the Revised Penal
Code, as amended; and

2. to indict both Eli Lui and Pat. Leo Rojas liable for Violation of Domicile, as defined
under Art. 128 of the same code.13

The Proceedings in the Trial Court

On January 11, 1990, the spouses Eulogio and Paulina Matillano filed a civil complaint for damages
in the Regional Trial Court of Davao del Sur against Eli Lui, Leo Rojas, Alan Mendoza and Henry
Tan. The case was docketed as Civil Case No. G-XXI-47(90). The plaintiffs therein alleged the
following:

3. That plaintiffs are merchants by occupation and have been residing in Bansalan, Davao
del Sur, for several years now. They are law-abiding and peaceful citizens in the community;

4. That at about 3:00 oclock in the afternoon of November 6, 1988, while plaintiff husband
was away from his residential house at Lily St., Bansalan, Davao del Sur, and plaintiff wife
was there tending the house, defendants, without any lawful search warrant, arrived and thru
intimidation succeeded in searching the house owned by the plaintiff after which they brought
with them two floor mats, two pairs of ladies shoes, two pairs of pants, two polo shirts, two T-
shirts, one Relova wrist watch, one necklace (sinubong), one ring (sinubong) and several old
coins, without the consent of the plaintiffs and without even giving any receipt for the items
taken;

5. That the defendants allegedly wanted to recover the items taken by one Elinito Lariosa but
defendants thru the use of naked power and brute force, illegally searched the house of the
herein plaintiffs in gross violation of plaintiffs constitutional rights;

6. That what defendants did in conspiring and confederating to illegally search the house of
plaintiffs and then taking with them the items mentioned above without even the benefit of
any receipt is not only violative of Article 19 in relation to Article 21 of the Civil Code but also
of Article 32 of the Civil Code;

7. That because of what defendants did, plaintiffs suffered mental anguishes, wounded
feelings, deprivation of the properties taken, besmirched reputation, and fright for which
reason defendants should be made to jointly and severally pay moral damages in the
amount of P500,000.00;
 8. That in order to deter others similarly bent and minded and by way of example or
correction for the public good, defendants should be made to pay jointly and severally
exemplary damages in the amount of P300,000.00;

9. That in the protection of their rights, plaintiffs engaged the services of counsel for an
agreed attorneys fees equivalent to 25% of the total award plus per diem of P1,000.00 per
court appearance;

10. That plaintiffs are bound to incur litigation expenses in an amount not less
than P10,000.00;14

They prayed that, after due proceedings, judgment be rendered in their favor, viz:

WHEREFORE, it is most respectfully prayed that after hearing judgment issue ordering the
defendants to jointly and severally pay plaintiffs:

1. P500,000.00 as moral damages;

2. P300,000.00 as exemplary damages;

3. Litigation expenses of P10,000.00;

4. Attorneys fees equivalent to 25% of the total award;

5. Per diems to be proved during the trial of this case.

Plaintiffs pray for other reliefs consistent with equity.15

In their Answer to the complaint, the defendants therein alleged, inter alia, that they did not conduct
a search in the house of the plaintiffs and that plaintiff Paulina Matillano allowed them to enter the
house and even brought out pairs of pants. They added that the other items were brought out by
Lariosas sister and that they took only one (1) floor mat, two (2) pairs of ladies shoes, and one (1)
pair of blue pants.16

The defendants adduced evidence that plaintiff Paulina Matillano allowed them to enter their house,
and with Lariosas sister, voluntarily turned over the items declared in the complaint. They testified
that no violence, threats or intimidation were even committed by them against Paulina Matillano.
Defendant Rojas further testified that he was merely complying with the Mission Order issued to him
when he entered the house of the plaintiffs in the company of the other defendants, and that he
remained in the ground floor while the other defendants retrieved the goods from plaintiff Matillano in
the second floor of the house.

On August 18, 1993, the RTC rendered judgment, ordering the dismissal of the complaint for
plaintiffs failure to prove their claims. The trial court also dismissed the defendants counterclaims.
The trial court gave credence to the collective testimonies of the defendants, that plaintiff Paulina
Matillano voluntarily allowed them to enter her house, and that the latter voluntarily turned over the
subject items to them. The trial court took into account the findings of the Provincial Prosecutor, the
Secretary of Justice, the National Police Commission, as well as the order of the Municipal Circuit
Trial Court of Bansalan, dismissing Criminal Case No. 880-B.

The Case on Appeal

The decision of the trial court was elevated to the Court of Appeals where the appellants contended,
thus:

1. THE LOWER COURT ERRED IN FINDING THAT APPELLANT PAULINA MATILLANO

VOLUNTARILY ALLOWED APPELLEES TO ENTER THE HOUSE BECAUSE OF THE
PRESENCE OF HER NEPHEW ELINITO LARIOSA WHO WAS HANDCUFFED;

2. THE LOWER COURT ERRED IN FINDING THAT MRS. PAULINA MATILLANO WAS
THE ONE WHO REPORTED THE MATTER TO THE BANSALAN POLICE STATION.

3. THE LOWER COURT ERRED IN DISMISSING THE COMPLAINT DESPITE CLEAR

PREPONDERANCE OF EVIDENCE AGAINST THE DEFENDANTS APPELLEES.17

On April 22, 1999, the Court of Appeals rendered judgment reversing the decision of the RTC. The
decretal portion of the decision reads:

IN VIEW OF ALL THE FOREGOING, the decision appealed from is hereby REVERSED and
SET ASIDE and a new one entered ordering defendants-appellees jointly and severally:

1. To pay plaintiffs-appellants the amount of Fifty Thousand Pesos (P50,000.00) as

moral damages and Fifteen Thousand Pesos (P15,000.00) as exemplary damages;
and

2. Ten Thousand Pesos (P10,000.00), as attorneys fees; and

3. To pay the costs.

SO ORDERED.18

The appellate court denied the appellees motion for reconsideration of the said decision. The
appellees Mendoza and Tan no longer appealed the decision.

Petitioners Eli Lui and Leo Rojas now assail the decision of the Court of Appeals contending that:

I. THE HONORABLE COURT OF APPEALS DISREGARDED THE TIME-HONORED

DOCTRINE LAID DOWN BY THIS HONORABLE COURT THAT FINDINGS OF TRIAL
COURT ARE BINDING AND CONCLUSIVE AND DESERVE A HIGH DEGREE OF
RESPECT, WHEN IT SET ASIDE THE FINDINGS OF FACTS AND ASSESSMENT OF THE
REGIONAL TRIAL COURT THAT TRIED THE CASE;

II. THE HONORABLE COURT OF APPEALS ERRONEOUSLY CONCLUDED THAT AN

ILLEGAL SEARCH WAS CONDUCTED IN MRS. MATILLANOS RESIDENCE, IN
DISREGARD OF THE EXCULPATORY FINDINGS OF THE TRIAL COURT THAT MRS.
MATILLANO HAD VOLUNTARILY ALLOWED PETITIONERS ENTRY INTO HER HOUSE.19

The Issues

The issues in this case may be synthesized, thus: (a) whether or not respondent Paulina Matillano
consented to the petitioners entry into her house, as well as to the taking of the clothes, shoes and
pieces of jewelry owned by her and her family; (b) whether or not the petitioners are liable for
damages to the respondents; and, (c) if so, the extent of the petitioners liability to the respondents.
Considering that the assignments of errors are interrelated, this Court shall delve into and resolve
them simultaneously.

The Courts Ruling

The petition has no merit.

Admittedly, the issues in the case at bar are factual. Under Rule 45 of the Rules of Court, only
questions of law may be raised in this Court in a petition for review on certiorari. However, the rule
admits of some exceptions, such as a case where the findings of facts of the trial court are
substantially different from those of the appellate court, and the resolution of such issues are
determinative of the outcome of the petition.20

The petitioners aver that the Court of Appeals committed a reversible error in discarding the factual
findings of the trial court. Contrary to the disquisitions of the appellate court, the petitioners assert
that the inconsistencies between the testimonies of Rojas and Lui are peripheral. Lui did not conduct
any search in the second floor of the respondents house and even if he did so, respondent Paulina
Matillano waived her right against unreasonable search when she allowed the petitioners to enter.
According to the petitioners, the respondents failed to prove that they forced their way into the house
of the respondents, and that the facts and circumstances which the appellate court found the trial
court to have overlooked are not, in fact, substantial enough to warrant a reversal of the factual
findings of the court a quo. According to the petitioners, the appellate court failed to discern that the
action filed by the respondents with the trial court was merely a leverage to the charge of robbery
against Lariosa, the respondents nephew.

On the other hand, the Court of Appeals gave credence and full probative weight to the evidence of
the respondents. It stated in its decision that the trial court erred in giving credence and probative
weight to the testimonies of the petitioners (the appellants therein). Moreover, the appellate court
found that the trial court had overlooked facts and circumstances of substance, which, if considered,
would have altered the courts decision. The appellate court gave weight to the findings of the trial
court in Criminal Case No. 17,136,88.21

We agree with the Court of Appeals.

The evidence of the respondents show that the petitioners, Tan and Mendoza, guns drawn and with
the handcuffed Lariosa in tow, kicked the kitchen door and barged into the house of the
respondents. They proceeded to the sala where respondent Paulina Matillano was. Over her
vehement protests, and because of petitioner Luis warning that she might be harmed, respondent
Paulina Matillano was forced to accompany the petitioner and his cohorts to the second floor of their
house. The foregoing was testified to by respondent Paulina Matillano, thus:

ATTY. SUARIO:

Q Mrs. Matillano, do you know the person of Eli Lui?

A I know him.

Q Why do you know Eli Lui?

A Because he is from Bansalan.

Q On November 6, 1988, where were you, Mrs. Matillano?

A I was in our house.

Q At about 3:00 oclock in the afternoon of November 6, 1988, did you notice any unusual
incident that took place in your house?

A There was.

Q What incident was that, Mrs. Matillano?

A There were five (5) persons who suddenly went inside our house.

Q Where did they enter?

A They entered through the kitchen.

Q Now, where were you when they entered suddenly in your house?

A I was in our sala.

Q Now, what did you do when you saw these five (5) persons entered (sic) your house?

A I was afraid.

Q Aside from fear, what did you do?

A One of them suddenly said, "Mrs., we are authorities."

ATTY. TAN:

Not responsive to the question, Your Honor.

ATTY. SUARIO:

She is responding the question because my question is, "Aside from fear, what did you do?"
and according to this witness, she was not able to do anything because one of those who
entered(not continued)

COURT:

I think the answer is not responsive. Just reform the question.

ATTY. SUARIO:

Q What did these persons do when they entered your house?

A One of them said, "Mrs., we are authorities. We are here to get something from your
house."
Q Do you know who this person was, this person who was talking that they were persons in
authority?

A That person when he first went to our house, I do not know him yet, but I know (sic) him
later to be Leo Rojas.

Q Why do you know him later to be Leo Rojas?

A When the case was already being tried, he introduced himself as Leo Rojas.

Q What was Leo Rojas wearing at that time?

A He was in civilian clothes.

Q Aside from Leo Rojas, who were the other persons who entered your house?

A Aside from the two (2) persons whom I do not know, my nephew was also with them in the
name of Elinito Lariosa.

Q Who else, Mrs. Matillano?

A Eli Lui.

ATTY. SUARIO:

At least, may we ask, Your Honor, that the word "manghilabot" be incorporated.

COURT:

So, the word is "interfering" or "meddling." You record the word "manghilabot."

ATTY. SUARIO:

Q When you said "manghilabot," what do you mean, Mrs. Matillano?

A Yes, because they said that they are taking some of our things and I said why are they
doing that (manghilabot)?

Q When you said those remarks, what else happened?

A It was Eli Lui who answered, "Mrs., do not answer anymore because something might
happen." (Basig madisgrasya).

ATTY. SUARIO:

"Madisgrasya," Your Honor, is more than something.

ATTY. SUARIO:
Q When you heard those words from Eli Lui, what else transpired?

A He said, "All right, where is your aparador because we are getting something." And I even
told him that we should wait for my husband but they did not agree because they said they
are in a hurry.

Q And after that, what else happened?

A I accompanied him upstairs.

Q You accompanied him upstairs, who are you referring to that you accompanied upstairs.

A Eli Lui and his other two (2) companions.

Q These two (2) companions whom you said you do not know their names?

A Yes, sir.22

ATTY. TAN:

Q Now, you said on November 6, 1988, five (5) men suddenly entered your house. When
you said suddenly, will you please describe how did they enter the house?

A They passed through the kitchen and suddenly appeared inside the house.

Q You mean to say that they did not knock at the door?

A They did not.

Q Who first entered the house among the five (5)?

A What I first saw was that they immediately converged in the sala and whom I recognized
was Eli Lui and my nephew who was in handcuffs.

Q Was your door opened at that time?

A It was closed but it was not locked. It can be kicked open.

Q But you can open it without kicking the door?

A Yes, sir.

Q Now, you said that you were afraid, why were you afraid?

A Why would you not be afraid when they were armed?

Q Who were armed among the five (5)?

 A All of them except the one who was in handcuffs.

Q You are very sure of that?

A I am very sure.23

Respondent Paulina Matillano, likewise, testified that petitioner Lui and his cohorts took her personal
things, and those of her familys, from the second floor of the house:

Q Now, while you and Eli Lui with two (2) other companions were upstairs, what happened
upstairs?

A Upon reaching upstairs, they immediately rolled the two (2) floor mats, the pair of leather
shoes, 2 pairs of pants, two (2) polo-shirts. They also let me open the chest and when it was
already open they rummaged through it and they got my old Bulova watch, my necklace, my
ring and a coinsita, old gold coins.

Q When you said "coinsita," what is "coinsita"?

A Old coins.

Q After taking all of these things, what else happened?

A They went downstairs.24

Q Now, you mentioned in this affidavit that several properties were taken from your house,
do you confirm that there were two (2) polo-shirts that were taken?

A Yes.

Q And there were also two (2) floor mats?

A Yes, that is true.

Q One (1) Bulova wristwatch?

A Yes.

Q One (1) necklace?

A Yes.

Q Two (2) pairs of lady (sic) shoes?

A Yes.

Q Two (2) pairs of pants?

A Yes.

Q One (1) ring?

A Yes.

Q Who owns these two (2) pairs of ladys (sic) shoes?

A That was mine.

Q What were the color of the shoes?

A Black and dirty white (referring to the color of the rostrum).

Q Where did you buy that shoes?

A In Davao City.

Q What store in Davao City?

A NCCC.

Q What particular date when you bought that shoes?

A I think it was in the month of November.

Q 1988?

A 1988.

Q And who owns these two (2) polo-shirts?

A My children.

Q What are the names of your children?

A Allan and Danilo.

Q Where is Allan residing?

A During the incident, Allan was still schooling in Tacloban.

Q So, you mean to say, on November 6, 1988, he was no longer residing in Bansalan?

A No more.

Q How about Danilo, where was he residing in November 6, 1988?

A He was living in Sta. Cruz.

Q He has a family of his own at Sta. Cruz?

A He was still single then.

Q But he was residing in Sta. Cruz?

A Yes.

Q How about these two (2) pairs of pants, who owns these pants?

A My children also.

Q You are referring to Allan and Danilo?

A No, because I still have so many children.

Q So, who owns these two (2) pants?

A Also my children, Eulogio, Jr. and Allan.

Q Now, Eulogio, Jr. where is (sic) he residing on November 6, 1988?

A In our house.

Q How about these two (2) t-shirts?

A Also owned by my children.

Q Are you referring to Allan and Danilo?

A They used to wear that.

Q How come that Allan has a polo-shirt in your house when you said he was then residing in
Tacloban?

ATTY. SUARIO:

May we manifest, Your Honor, that he was schooling in Tacloban.

COURT:

All right.

A They used to have a vacation during December and March and usually they left some of
their clothes inside our aparador.

Q These polo shirts were still new?

A Already used.
 Q How about the pants?

A The other one is already used and the other one is new.

Q How about the floor mats?

A That is mine.

Q Now, you claimed that these clothes were taken from the cabinet or aparador, is that
correct?

A Yes, that is true.

Q Inside your aparador, how many pieces of clothes were stored therein?

A Many.

Q Could you say one (1) dozen?

A It cannot be counted.

Q Could you say three (3) dozens?

A It is really full of dress.

Q Would you say it is more than three (3) dozens?

A More.

Q And these more than three (3) dozens consists of polo shirts, t-shirts and pants?

A Yes.

Q And inspite (sic) the fact that there were more than three (3) dozens of clothes, pants, polo
shirts and t-shirts only these two (2) pants, two (2) polo shirts and two (2) t-shirts w ere
taken?

A Only those things because they only selected the ones which were still usable the good
ones.

Q Now, you mentioned also in your affidavit that the group also searched your trunk?

A I was ordered to open the trunk.

Q Who particularly ordered you to open the trunk?

A Eli Lui.25

The respondents immediately reported the matter to the Office of the Barangay Captain26 and filed a
complaint against petitioner Lui and his cohorts.27
The petitioners claim that respondent Paulina Matillano allowed them and their cohorts inside the
house and voluntarily gave their personal belongings is belied by the unshaken testimony of
respondent Paulina Matillano, corroborated by Erlinda Clarin.

The petitioners attempt to project themselves to have acted with civility and courtesy to respondent
Paulina Matillano is implausible, taking into account petitioner Luis state of mind before he and
petitioner Rojas and their cohorts left the Metrodiscom Headquarters in Davao City, and proceeded
to the house of the respondents in Bansalan. Before they left Davao City, Lui sadistically mauled
Lariosa with the acquiescence of the police authorities, and forced him to give an uncounselled
extrajudicial confession. This was the finding of the RTC in Criminal Case No. 17,136,88:

Despite being mauled by Eli Lui and drowned in a toilet bowl, accused denied having
anything to do with the lost money of the complainant. Later, he was turned over to the police
for investigation and there without affording accused with his right to counsel, he was
interrogated orally and was forced to admit that out of the money he stole, he bought items
which the police later recovered at Bansalan. They also returned the accused to the
complainants establishment and forced to do re-enactment of the act of robbery, without
accused again afforded the right to counsel. Pictures were taken during the re-enactment
while accused was handcuffed, as shown in the pictures taken by the police.

Finally, the accused was forced to admit and sign his extrajudicial statement (Exhibit A), no
longer able to bear the pain of the mauling to him by Eli Lui, who has the temerity of
maltreating the accused even in the presence of the guards in the jail and seriously
threatening accused to admit ownership of the recovered items at Bansalan and at New
Matina, SIR, Davao City, otherwise he will be salvaged, along with the serious threatening
words of accuseds companion in the jail, that if he will refuse to sign his alleged confession,
he will be salvaged as directed by Eli Lui with the police.

Indeed, in the records, it can be deduced with sufficient basis, that Eli Lui seems to have an
open hand in the prosecution of accused. He was the one who called the police to arrest
him, even without a warrant of arrest. Before his statement was obtained, policeman relied
on him in the investigation and the filing of proper charges against accused. They rode in a
car of Eli Lui, in taking accused from the Metrodiscom to the establishment of complainant
during the re-enactment in going to Bansalan, to recover the items allegedly bought by
accused out of the money allegedly stolen; all of these incidents shows (sic) [that] the police
despite justification, that they do not have enough facilities (sic), [had] gone astray in
conducting an impartial investigation, by submitting to any possible indiscretion of Eli Lui of
making the scale of justice bend in his favor, by manifesting control over the police power of
investigation highly and seriously pre-judicial to the rights, and interests of the accused.28

If petitioner Lui was so brazen as to have mauled Lariosa in the presence of police authorities, he
would not have cared a whit in barging into the respondents house with petitioner Rojas, a
policeman of Davao City, and his cohorts, and divesting the respondents of their belongings. The
petitioners and their cohorts wanted to insure that their caper would succeed. Hence, they did not
coordinate with the Bansalan Police Station when they went to the respondents house with their
intention to divest them of their belongings.

Petitioner Rojas reliance on Mission Order No. MRF-A-004-98 issued to him by Sergeant Alberto
Genise is misplaced. It bears stressing that the petitioner was merely tasked in the said order to
"follow up a theft case within the area of responsibility of the Metrodiscom, Davao City." The
petitioner was not authorized, under the said order, to commit or tolerate the commission of a crime,
such as violation of domicile as defined in Article 128 of the Revised Penal Code, viz:
 ART. 128. Violation of domicile The penalty of prision correccional in its minimum period
shall be imposed upon any public officer or employee who, not being authorized by judicial
order, shall enter any dwelling against the will of the owner thereof, search papers or other
effects found therein without the previous consent of such owner, or, having surreptitiously
entered said dwelling, and being required to leave the premises, shall refuse to do so.

If the offense be committed in the nighttime, or if any papers or effects not constituting evidence of a
crime be not returned immediately after the search made by the offender, the penalty shall be prision
correccional in its medium and maximum periods.

Although petitioner Rojas did not follow petitioner Lui and his cohorts to the second floor of the
respondents house and himself conduct a search therein, he allowed them to search the premises
without a warrant. The petitioners and their cohorts were not authorized to conduct a search in the
house of the respondents, much less divest the latter of their personal belongings. As a police
officer, it was petitioner Rojas duty to prevent the commission of crimes in his presence, and to
arrest the persons committing such crimes.

The trial court rejected the testimony of respondent Paulina Matillano on the following grounds: (a)
she had known petitioner Lui for ten years as a businessman doing business in Bansalan; (b) the
occupants of the respondents house when the petitioners and their cohorts arrived were all women;
(c) the respondents failed to report the incident to the Bansalan police authorities; and, (d) the
provincial prosecutors resolution recommending the dismissal of Criminal Case No. 880-B for
robbery against the petitioners, which was sustained by the Secretary of Justice, and the ruling of
the National Police Commission exonerating petitioner Rojas from any liability.

We find that the Court of Appeals was correct in overruling the trial court.

First. Respondent Paulina Matillano testified that petitioner Lui did not stay permanently in Bansalan.
He went there only to collect money from a certain Matura and other businessmen.29 She also
testified that there were many cases against the petitioner, one of which was for arson. The case
was dismissed, but one of her neighbors was rendered missing.30 If the petitioner, a businessman for
ten years or so, had no qualms in torturing Lariosa under the very noses of police officers, he would,
likewise, have no qualms about intimidating respondent Paulina Matillano and divesting her of her
personal belongings. It must be stressed that petitioner Lui was in the company of petitioner Rojas, a
police officer from Davao City.

Second. The petitioners and their cohorts had no foreknowledge that the occupants of the
respondents house were all women. They must have believed that there were male occupants;
hence, barged into the house with drawn guns.

Third. As shown clearly in respondent Paulina Matillanos sworn statement before the Bansalan
Police Station, she declared that the petitioners were armed with guns. They threatened her life and,
without any search warrant therefor, divested her and her family of their personal belongings against
their will.31

Fourth. In her complaint before the Office of the Barangay Captain, respondent Paulina Matillano
declared that the petitioners entered their house, that petitioner Lui pointed a gun at her, and that the
petitioners and their cohorts searched the house and carted away their personal belongings.32 That
the report made before the Barangay Captain and petitioner Paulina Matillanos sworn statement are
not as complete as her testimony before the trial court is understandable. Affidavits are usually taken
ex parte and are almost always incomplete and inaccurate, but they do not detract from the
credibility of the witness.33 An entry in the police blotter is usually incomplete and inaccurate for want
of suggestions or inquiries, without the aid of which the victim may be unable to recall the connected
collateral circumstances necessary for the correction of the first suggestion of his memory, and for
his accurate recollection of all that pertain to the subject.34 The same principle applies to entries in
the barangay blotter.

Fifth. As correctly held by the trial court, the findings of administrative and quasi-administrative
agencies are not binding on the courts. In the present case, the Office of the Provincial Prosecutor,
as affirmed by the Secretary of Justice,35 found no probable cause for robbery against the petitioners
because they had no intent to rob, but merely to recover the properties from the house of the
respondents which petitioner Lui perceived to have been acquired by Lariosa with money stolen
from his uncle, Ben.36 The decision of the National Police Commission absolving petitioner Rojas of
grave misconduct was anchored on its finding that the petitioner was merely performing his duty as
ordered by his superior officer.37 It was inevitable for the City Prosecutor to dismiss the complaint for
violation of domicile filed against petitioner Rojas in I.S. No. 91-1488 because the crime of violation
of domicile was committed in Bansalan and not in Davao City.38 In contrast, the Commission on
Human Rights recommended the indictment of petitioner Lui for unlawful arrest and of petitioner
Rojas for violation of domicile.39

Sixth. Under Articles 19 and 32, in relation to Article 21 of the New Civil Code, the dismissal of the
complaint against the petitioners by the Provincial and City Prosecutors, the Municipal Trial Court
and the National Police Commission are of no relevance to the civil complaint for damages filed by
the respondents against the petitioners. The action of the respondents against the petitioners may
still proceed despite the dismissal of the criminal and administrative actions against them.

The petitioners contention that respondent Paulina Matillano waived her right against unreasonable
search and seizure deserves scant consideration. Under Article III, Section 2 of the Constitution, "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." This provision
protects not only those who appear to be innocent but also those who appear to be guilty, who must
nevertheless be presumed innocent until the contrary is proved.40 The general rule is that a search
and seizure must be carried through or with judicial warrant; otherwise, such a search and seizure
becomes unconstitutional within the context of the constitutional provision41because a warrantless
search is in derogation of a constitutional right. Peace officers who effect a warrantless search
cannot invoke regularity in the performance of official functions.42

The right against unreasonable searches and seizures is a personal right which may be waived
expressly or impliedly. But a waiver by implication cannot be presumed.43 There must be clear and
convincing evidence of an actual intention to relinquish the right to constitute a waiver of a
constitutional right. There must be proof of the following: (a) that the right exists; (b) that the person
involved had knowledge, either actual or constructive, of the existence of such right; and, (c) that the
said person had an actual intention to relinquish the right.44 The waiver must be made voluntarily,
knowingly and intelligently. The Court indulges every reasonable presumption against any waiver of
fundamental constitutional rights.45 The fact that the aggrieved person did not object to the entry into
her house by the police officers does not amount to a permission to make a search therein.46 A
peaceful submission to search and seizure is not a consent or an invitation thereto, but is merely a
demonstration of regard for the supremacy of the law.47

In this case, the petitioners failed to prove, with clear and convincing evidence, that respondent
Paulina Matillano waived her right against unreasonable search and seizure by consenting thereto,
either expressly or impliedly. Admittedly, respondent Paulina Matillano did not object to the opening
of her wooden closet and the taking of their personal properties. However, such failure to object or
resist did not amount to an implied waiver of her right against unreasonable search and seizure. The
petitioners were armed with handguns; petitioner Lui threatened and intimidated her. Respondent
Eulogio Matillano, her husband, was out of the house when the petitioner and his cohorts conducted
the search and seizure. He could, thus, not have waived his constitutional right.

Furthermore, the petitioners claim that respondent Paulina Matillano voluntarily handed over the
articles to petitioner Lui is incredible. There is no evidence that there was foreknowledge on the part
of the petitioners of the articles they wanted to retrieve from the respondents house. Even if
respondent Paulina Matillano did hand over the articles to the petitioner, it was only because the
petitioner and his cohorts had earlier threatened and intimidated her into doing so.

We agree with the ruling of the Court of Appeals that the petitioners are liable to the respondents for
moral and exemplary damages in the amounts respectively awarded by it. Petitioner Rojas, a
policeman of Davao City, conspired with petitioner Lui and, with drawn guns, gained entry into the
respondents house, and threatened and intimidated respondent Paulina Matillano. Although
petitioner Rojas did not himself conduct the search, he assented thereto by allowing petitioner Lui
and his cohorts to go up to the second floor and divest the respondents of their belongings. The
petitioners even left together after the incident.

In MHP Garments, Inc. vs. Court of Appeals,48 we had the occasion to state:

In the case of Lim vs. Ponce de Leon, we ruled for the recovery of damages for violation of
constitutional rights and liberties from public officer or private individual, thus:

"ART. 32. Any public officer or employee, or any private individual, who directly or indirectly
obstructs, defeats, violates or in any manner impedes or impairs any of the following rights
and liberties of another person shall be liable to the latter for damages.

"x x x

"(9) the rights to be secure in ones persons, house, papers and effects against
unreasonable searches and seizures.

"x x x

"The indemnity shall include moral damages. Exemplary damages may also be adjudged."

"ART 2219. Moral damages may be recovered in the following and analogous cases:

"x x x

"(6) Illegal search;

"(1) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35.

"Pursuant to the foregoing provisions, a person whose constitutional rights have been
violated or impaired is entitled to actual and moral damages from the public officer or
employee responsible therefor. In addition, exemplary damages may also be awarded."

xxx
 "The very nature of Article 32 is that the wrong may be civil or criminal. It is not necessary
therefore that there should be malice or bad faith. To make such a requisite would defeat the
main purpose of Article 32 which is the effective protection of individual rights. Public officials
in the past have abused their powers on the pretext of justifiable motives or good faith in the
performance of their duties. Precisely, the object of the Article is to put an end to official
abuse by plea of the good faith. In the United States this remedy is in the nature of a tort."
(emphasis supplied)

In the subsequent case of Aberca vs. Ver, the Court En Banc explained the liability of persons
indirectly responsible, viz:

"[T]he decisive factor in this case, in our view, is the language of Article 32. The law speaks
of an officer or employee or person directly or indirectly responsible for the violation of the
constitutional rights and liberties of another. Thus, it is not the actor alone (i.e., the one
directly responsible) who must answer for damages under Article 32; the person indirectly
responsible has also to answer for the damages or injury caused to the aggrieved party.

xxx

"While it would certainly be too nave to expect that violators of human rights would easily be
deterred by the prospect of facing damage suits, it should nonetheless be made clear in no
uncertain terms that Article 32 of the Civil Code makes the persons who are directly, as well
as indirectly, responsible for the transgression joint tortfeasors.

xxx

[N]either can it be said that only those shown to have participated directly should be held
liable. Article 32 of the Civil Code encompasses within the ambit of its provisions those
directly, as well as indirectly, responsible for its violations." (emphasis supplied)

Applying the aforecited provisions and leading cases, the respondent court correctly granted
damages to private respondents. Petitioners were indirectly involved in transgressing the right of
private respondents against unreasonable search and seizure. Firstly, they instigated the raid
pursuant to their covenant in the Memorandum Agreement to undertake the prosecution in court of
all illegal sources of scouting supplies. As correctly observed by respondent court:

"Indeed, the acts committed by the PC soldiers of unlawfully seizing appellees

(respondents) merchandise and of filing the criminal complaint for unfair competition against
appellees (respondents) were for the protection and benefit of appellant (petitioner)
corporation. Such being the case, it is, thus, reasonably fair to infer from those acts that it
was upon appellant (petitioner) corporations instance that the PC soldiers conducted the
raid and effected the illegal seizure. These circumstances should answer the trial courts
query posed in its decision now under consideration as to why the PC soldiers
immediately turned over the seized merchandise to appellant (petitioner) corporation."

The raid was conducted with the active participation of their employee. Larry de Guzman did not lift a
finger to stop the seizure of the boy and girl scout items. By standing by and apparently assenting
thereto, he was liable to the same extent as the officers themselves. So with the petitioner
corporation which even received for safekeeping the goods unreasonable seized by the PC raiding
team and de Guzman, and refused to surrender them for quite a time despite the dismissal of its
complaint for unfair competition.49
IN LIGHT OF ALL THE FOREGOING, the petition is DISMISSED. The Decision of the Court of
Appeals is AFFIRMED in toto. Costs against the petitioners.

SO ORDERED.

Puno*, Quisumbing**, Austria-Martinez, and Tinga, JJ., concur.

SECOND DIVISION
ARSENIO VERGARA VALDEZ, G.R. No. 170180

Petitioner,

Present:

QUISUMBING, J.,

Chairperson,

- versus - CARPIO,

CARPIO MORALES,

TINGA, and

VELASCO, JJ.

PEOPLE OF THE PHILIPPINES,

Respondent. Promulgated:

November 23, 2007

x------------------------------------------------------------------------------------x
 DECISION

TINGA, J.:

The sacred right against an arrest, search or seizure without valid warrant is not
only ancient. It is also zealously safeguarded. The Constitution guarantees the
right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures.[1] Any evidence obtained in violation
of said right shall be inadmissible for any purpose in any proceeding. Indeed,
while the power to search and seize may at times be necessary to the public
welfare, still it must be exercised and the law implemented without contravening
the constitutional rights of the citizens, for the enforcement of no statute is of
sufficient importance to justify indifference to the basic principles of
government.[2]

On appeal is the Decision[3] of the Court of Appeals dated 28 July 2005, affirming
the Judgment[4] of the Regional Trial Court (RTC), Branch 31, Agoo, La Union dated
31 March 2004 finding petitioner Arsenio Vergara Valdez guilty beyond
reasonable doubt of violating Section 11 of Republic Act No. 9165 (R.A. No.
9165)[5] and sentencing him to suffer the penalty of imprisonment ranging from
eight (8) years and one (1) day of prision mayor medium as minimum to fifteen
(15) years of reclusion temporal medium as maximum and ordering him to pay a
fine of P350,000.00.[6]

I.

On 26 June 2003, petitioner was charged with violation of Section 11, par. 2(2) of
R.A. No. 9165 in an Information[7] which reads:
 That on or about the 17th day of March 2003, in the Municipality of Aringay,
Province of La Union, 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, control and custody dried marijuana leaves wrapped in a cellophane and
newspaper page, weighing more or less twenty-five (25) grams, without first securing
the necessary permit, license or prescription from the proper government agency.

CONTRARY TO LAW.[8]

On arraignment, petitioner pleaded not guilty. Thereafter, trial on the merits

ensued with the prosecution presenting the three (3) barangay tanods of San
Benito Norte, Aringay, La Union namely, Rogelio Bautista (Bautista), Nestor Aratas
(Aratas) and Eduardo Ordoo (Ordoo), who arrested petitioner.

Bautista testified that at around 8:00 to 8:30 p.m. of 17 March 2003, he was
conducting the routine patrol along the National Highway in Barangay San Benito
Norte, Aringay, La Union together with Aratas and Ordoo when they noticed
petitioner, lugging a bag, alight from a mini-bus. The tanods observed that
petitioner, who appeared suspicious to them, seemed to be looking for
something. They thus approached him but the latter purportedly attempted to
run away. They chased him, put him under arrest and thereafter brought him to
the house of Barangay Captain Orencio Mercado (Mercado) where he, as averred
by Bautista, was ordered by Mercado to open his bag. Petitioners bag allegedly
contained a pair of denim pants, eighteen pieces of eggplant and dried marijuana
leaves wrapped in newspaper and cellophane. It was then that petitioner was
taken to the police station for further investigation.[9]
Aratas and Ordoo corroborated Bautistas testimony on most material points. On
cross-examination, however, Aratas admitted that he himself brought out the
contents of petitioners bag before petitioner was taken to the house of
Mercado.[10] Nonetheless, he claimed that at Mercados house, it was petitioner
himself who brought out the contents of his bag upon orders from Mercado. For
his part, Ordoo testified that it was he who was ordered by Mercado to open
petitioners bag and that it was then that they saw the purported contents
thereof.[11]

The prosecution likewise presented Police Inspector Valeriano Laya II (Laya), the
forensic chemist who conducted the examination of the marijuana allegedly
confiscated from petitioner. Laya maintained that the specimen submitted to him
for analysis, a sachet of the substance weighing 23.10 grams and contained in a
plastic bag, tested positive of marijuana. He disclosed on cross-examination,
however, that he had knowledge neither of how the marijuana was taken from
petitioner nor of how the said substance reached the police officers. Moreover,
he could not identify whose marking was on the inside of the cellophane
wrapping the marijuana leaves.[12]

The charges were denied by petitioner. As the defenses sole witness, he

testified that at around 8:30 p.m. on 17 March 2003, he arrived in Aringay from
his place in Curro-oy, Santol, La Union. After alighting from the bus, petitioner
claimed that he went to the house of a friend to drink water and then proceeded
to walk to his brothers house. As he was walking, prosecution witness Ordoo, a
cousin of his brothers wife, allegedly approached him and asked where he was
going. Petitioner replied that he was going to his brothers house. Ordoo then
purportedly requested to see the contents of his bag and appellant acceded. It
was at this point that Bautista and Aratas joined them. After inspecting all the
contents of his bag, petitioner testified that he was restrained by the tanod and
taken to the house of Mercado. It was Aratas who carried the bag until they
reached their destination.[13]

Petitioner maintained that at Mercados house, his bag was opened by

the tanod and Mercado himself. They took out an item wrapped in newspaper,
which later turned out to be marijuana leaves. Petitioner denied ownership
thereof. He claimed to have been threatened with imprisonment by his arrestors
if he did not give the prohibited drugs to someone from the east in order for them
to apprehend such person. As petitioner declined, he was brought to the police
station and charged with the instant offense. Although petitioner divulged that it
was he who opened and took out the contents of his bag at his friends house, he
averred that it was one of the tanod who did so at Mercados house and that it
was only there that they saw the marijuana for the first time.[14]
Finding that the prosecution had proven petitioners guilt beyond
reasonable doubt, the RTC rendered judgment against him and sentenced him to
suffer indeterminate imprisonment ranging from eight (8) years and one (1) day
of prision mayor medium as minimum to fifteen (15) years of reclusion
temporal medium as maximum and ordered him to pay a fine of P350,000.00.[15]

Aggrieved, petitioner appealed the decision of the RTC to the Court of Appeals.
On 28 July 2005, the appellate court affirmed the challenged decision. The Court
of Appeals, finding no cogent reason to overturn the presumption of regularity in
favor of the barangay tanod in the absence of evidence of ill-motive on their part,
agreed with the trial court that there was probable cause to arrest petitioner. It
observed further:

That the prosecution failed to establish the chain of custody of the seized marijuana is of
no moment. Such circumstance finds prominence only when the existence of the seized
prohibited drugs is denied. In this case, accused-appellant himself testified that the
marijuana wrapped in a newspaper was taken from his bag. The corpus delicti of the
crime, i.e.[,] the existence of the marijuana and his possession thereof, was amply
proven by accused-appellant Valdezs own testimony.[16]
 In this appeal, petitioner prays for his acquittal and asserts that his guilt of
the crime charged had not been proven beyond reasonable doubt. He argues,
albeit for the first time on appeal, that the warrantless arrest effected against him
by the barangay tanod was unlawful and that the warrantless search of his bag
that followed was likewise contrary to law. Consequently, he maintains, the
marijuana leaves purportedly seized from him are inadmissible in evidence for
being the fruit of a poisonous tree.

Well-settled is the rule that the findings of the trial court on the credibility
of witnesses and their testimonies are accorded great respect and weight, in the
absence of any clear showing that some facts and circumstances of weight or
substance which could have affected the result of the case have been overlooked,
misunderstood or misapplied.[17]

After meticulous examination of the records and evidence on hand,

however, the Court finds and so holds that a reversal of the decision a quo under
review is in order.

II.

At the outset, we observe that nowhere in the records can we find any
objection by petitioner to the irregularity of his arrest before his arraignment.
Considering this and his active participation in the trial of the case, jurisprudence
dictates that petitioner is deemed to have submitted to the jurisdiction of the trial
court, thereby curing any defect in his arrest. The legality of an arrest affects only
the jurisdiction of the court over his person.[18] Petitioners warrantless arrest
therefore cannot, in itself, be the basis of his acquittal.
 However, to determine the admissibility of the seized drugs in evidence, it
is indispensable to ascertain whether or not the search which yielded the alleged
contraband was lawful. The search, conducted as it was without a warrant, is
justified only if it were incidental to a lawful arrest.[19] Evaluating the evidence on
record in its totality, as earlier intimated, the reasonable conclusion is that the
arrest of petitioner without a warrant is not lawful as well.

Petitioner maintains, in a nutshell, that after he was approached by

the tanod and asked to show the contents of his bag, he was simply herded
without explanation and taken to the house of the barangay captain. On their way
there, it was Aratas who carried his bag. He denies ownership over the
contraband allegedly found in his bag and asserts that he saw it for the first time
at the barangay captains house.

Even casting aside petitioners version and basing the resolution of this case
on the general thrust of the prosecution evidence, the unlawfulness of petitioners
arrest stands out just the same.

Section 5, Rule 113 of the Rules on Criminal Procedure provides the only
occasions on which a person may be arrested without a warrant, to wit:

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

xxx

It is obvious that based on the testimonies of the arresting barangay tanod,

not one of these circumstances was obtaining at the time petitioner was arrested.
By their own admission, petitioner was not committing an offense at the time he
alighted from the bus, nor did he appear to be then committing an
offense.[20] The tanod did not have probable cause either to justify petitioners
warrantless arrest.

For the exception in Section 5(a), Rule 113 to operate, this Court has ruled
that two (2) elements must be present: (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.[21] Here, petitioners act of looking
around after getting off the bus was but natural as he was finding his way to his
destination. That he purportedly attempted to run away as the tanod approached
him is irrelevant and cannot by itself be construed as adequate to charge
the tanod with personal knowledge that petitioner had just engaged in, was
actually engaging in or was attempting to engage in criminal activity. More
importantly, petitioner testified that he did not run away but in fact spoke with
the barangay tanodwhen they approached him.

Even taking the prosecutions version generally as the truth, in line with our
assumption from the start, the conclusion will not be any different. It is not
unreasonable to expect that petitioner, walking the street at night, after being
closely observed and then later tailed by three unknown persons, would attempt
to flee at their approach. Flight per se is not synonymous with guilt and must not
always be attributed to ones consciousness of guilt.[22] Of persuasion was the
Michigan Supreme Court when it ruled in People v. Shabaz[23] that [f]light alone is
not a reliable indicator of guilt without other circumstances because flight alone is
inherently ambiguous. Alone, and under the circumstances of this case,
petitioners flight lends itself just as easily to an innocent explanation as it does to
a nefarious one.

Moreover, as we pointed out in People v. Tudtud,[24] [t]he phrase in his

presence therein, connot[es] penal knowledge on the part of the arresting officer.
The right of the accused to be secure against any unreasonable searches on and
seizure of his own body and any deprivation of his liberty being a most basic and
fundamental one, the statute or rule that allows exception to the requirement of
a warrant of arrest is strictly construed. Its application cannot be extended
beyond the cases specifically provided by law.[25]

Indeed, the supposed acts of petitioner, even assuming that they appeared
dubious, cannot be viewed as sufficient to incite suspicion of criminal activity
enough to validate his warrantless arrest.[26] If at all, the search most permissible
for the tanod to conduct under the prevailing backdrop of the case was a stop-
and-frisk to allay any suspicion they have been harboring based on petitioners
behavior. However, a stop-and-frisk situation, following Terry v. Ohio,[27] must
precede a warrantless arrest, be limited to the persons outer clothing, and should
be grounded upon a genuine reason, in light of the police officers experience and
surrounding conditions, to warrant the belief that the person detained has
weapons concealed about him.[28]

Accordingly, petitioners waiver of his right to question his arrest

notwithstanding, the marijuana leaves allegedly taken during the search cannot
be admitted in evidence against him as they were seized during a warrantless
search which was not lawful.[29] As we pronounced in People v. Bacla-an

A waiver of an illegal warrantless arrest does not also mean a waiver of the
inadmissibility of evidence seized during an illegal warrantless arrest. The following
searches and seizures are deemed permissible by jurisprudence: (1) search of moving
vehicles (2) seizure in plain view (3) customs searches (4) waiver or consent searches (5)
stop and frisk situations (Terry Search) and (6) search incidental to a lawful arrest. The
last includes a valid warrantless search and seizure pursuant to an equally valid
warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected with
a valid warrant of arrest, the Rules of Court recognize permissible warrantless arrests, to
wit: (1) arrests in flagrante delicto, (2) arrests effected in hot pursuit, and, (3) arrests of
escaped prisoners.[30]

When petitioner was arrested without a warrant, he was neither caught

in flagrante delicto committing a crime nor was the arrest effected in hot pursuit.
Verily, it cannot therefore be reasonably argued that the warrantless search
conducted on petitioner was incidental to a lawful arrest.

In its Comment, the Office of the Solicitor General posits that apart from
the warrantless search being incidental to his lawful arrest, petitioner had
consented to the search. We are not convinced. As we explained in Caballes v.
Court of Appeals[31]

Doubtless, the constitutional immunity against unreasonable searches and

seizures is a personal right which may be waived. The consent must be voluntary in
order to validate an otherwise illegal detention and search, i.e., the consent is
unequivocal, specific, and intelligently given, uncontaminated by any duress or
coercion. Hence, consent to a search is not to be lightly inferred, but must be shown by
clear and convincing evidence. The question whether a consent to a search was in fact
voluntary is a question of fact to be determined from the totality of all the
circumstances. Relevant to this determination are the following characteristics of the
person giving consent and the environment in which consent is given: (1) the age of the
defendant; (2) whether he was in a public or secluded location; (3) whether he objected
 to the search or passively looked on; (4) the education and intelligence of the defendant;
(5) the presence of coercive police procedures; (6) the defendant's belief that no
incriminating evidence will be found; (7) the nature of the police questioning; (8) the
environment in which the questioning took place; and (9) the possibly vulnerable
subjective state of the person consenting. It is the State which has the burden of
proving, by clear and positive testimony, that the necessary consent was obtained and
that it was freely and voluntarily given.[32]

In the case at bar, following the theory of the prosecution albeit based on
conflicting testimonies on when petitioners bag was actually opened, it is
apparent that petitioner was already under the coercive control of the public
officials who had custody of him when the search of his bag was demanded.
Moreover, the prosecution failed to prove any specific statement as to how the
consent was asked and how it was given, nor the specific words spoken by
petitioner indicating his alleged "consent." Even granting that petitioner admitted
to opening his bag when Ordoo asked to see its contents, his implied
acquiescence, if at all, could not have been more than mere passive conformity
given under coercive or intimidating circumstances and hence, is considered no
consent at all within the contemplation of the constitutional guarantee.[33] As a
result, petitioners lack of objection to the search and seizure is not tantamount to
a waiver of his constitutional right or a voluntary submission to the warrantless
search and seizure.[34]

III.

Notably, the inadmissibility in evidence of the seized marijuana leaves for

being the fruit of an unlawful search is not the lone cause that militates against
the case of the prosecution. We likewise find that it has failed to convincingly
establish the identity of the marijuana leaves purportedly taken from petitioners
bag.
 In all prosecutions for violation of the Dangerous Drugs Act, the following
elements must concur: (1) proof that the transaction took place; and (2)
presentation in court of the corpus delicti or the illicit drug as evidence.[35] The
existence of dangerous drugs is a condition sine qua non for conviction for the
illegal sale of dangerous drugs, it being the very corpus delicti of the crime.[36]

In a line of cases, we have ruled as fatal to the prosecutions case its failure
to prove that the specimen submitted for laboratory examination was the same
one allegedly seized from the accused.[37] There can be no crime of illegal
possession of a prohibited drug when nagging doubts persist on whether the item
confiscated was the same specimen examined and established to be the
prohibited drug.[38] As we discussed in People v. Orteza[39], where we deemed the
prosecution to have failed in establishing all the elements necessary for
conviction of appellant for illegal sale of shabu

First, there appears nothing in the record showing that police officers complied
with the proper procedure in the custody of seized drugs as specified in People v. Lim,
i.e., any apprehending team having initial control of said drugs and/or paraphernalia
should, immediately after seizure or confiscation, have the same physically inventoried
and photographed in the presence of the accused, if there be any, and or his
representative, who shall be required to sign the copies of the inventory and be given a
copy thereof. The failure of the agents to comply with the requirement raises doubt
whether what was submitted for laboratory examination and presented in court was
actually recovered from appellant. It negates the presumption that official duties have
been regularly performed by the police officers.

In People v. Laxa, where the buy-bust team failed to mark the confiscated
marijuana immediately after the apprehension of the accused, the Court held that the
deviation from the standard procedure in anti-narcotics operations produced doubts as
to the origins of the marijuana. Consequently, the Court concluded that the prosecution
failed to establish the identity of the corpus delicti.
 The Court made a similar ruling in People v. Kimura, where the Narcom
operatives failed to place markings on the seized marijuana at the time the accused was
arrested and to observe the procedure and take custody of the drug.

More recently, in Zarraga v. People, the Court held that the material
inconsistencies with regard to when and where the markings on the shabu were made
and the lack of inventory on the seized drugs created reasonable doubt as to the identity
of the corpus delicti. The Court thus acquitted the accused due to the prosecutions
failure to indubitably show the identity of the shabu.

In the case at bar, after the arrest of petitioner by the barangay tanod, the
records only show that he was taken to the house of the barangay captain and
thereafter to the police station. The Joint Affidavit[40] executed by
the tanod merely states that they confiscated the marijuana leaves which they
brought to the police station together with petitioner. Likewise, the
Receipt[41] issued by the Aringay Police Station merely acknowledged receipt of
the suspected drugs supposedly confiscated from petitioner.

Not only did the three tanod contradict each other on the matter of when
petitioners bag was opened, they also gave conflicting testimony on who actually
opened the same. The prosecution, despite these material inconsistencies,
neglected to explain the discrepancies. Even more damning to its cause was the
admission by Laya, the forensic chemist, that he did not know how the specimen
was taken from petitioner, how it reached the police authorities or whose
marking was on the cellophane wrapping of the marijuana. The non-presentation,
without justifiable reason, of the police officers who conducted the inquest
proceedings and marked the seized drugs, if such was the case, is fatal to the
case. Plainly, the prosecution neglected to establish the crucial link in the chain of
custody of the seized marijuana leaves from the time they were first allegedly
discovered until they were brought for examination by Laya.
 The Court of Appeals found as irrelevant the failure of the prosecution to
establish the chain of custody over the seized marijuana as such [f]inds
prominence only when the existence of the seized prohibited drug is
denied.[42] We cannot agree.

To buttress its ratiocination, the appellate court narrowed on petitioners

testimony that the marijuana was taken from his bag, without taking the
statement in full context.[43] Contrary to the Court of Appeals findings, although
petitioner testified that the marijuana was taken from his bag, he consistently
denied ownership thereof.[44]Furthermore, it defies logic to require a denial of
ownership of the seized drugs before the principle of chain of custody comes into
play.

The onus of proving culpability in criminal indictment falls upon the State.
In conjunction with this, law enforcers and public officers alike have the corollary
duty to preserve the chain of custody over the seized drugs. The chain of evidence
is constructed by proper exhibit handling, storage, labeling and recording, and
must exist from the time the evidence is found until the time it is offered in
evidence. Each person who takes possession of the specimen is duty-bound to
detail how it was cared for, safeguarded and preserved while in his or her control
to prevent alteration or replacement while in custody. This guarantee of the
integrity of the evidence to be used against an accused goes to the very heart of
his fundamental rights.

The presumption of regularity in the performance of official duty invoked

by the prosecution and relied upon by the courts a quo cannot by itself overcome
the presumption of innocence nor constitute proof of guilt beyond reasonable
doubt.[45] Among the constitutional rights enjoyed by an accused, the most
primordial yet often disregarded is the presumption of innocence. This
elementary principle accords every accused the right to be presumed innocent
until the contrary is proven beyond reasonable doubt. Thus, the burden of
proving the guilt of the accused rests upon the prosecution.
 Concededly, the evidence of the defense is weak and uncorroborated.
Nevertheless, this [c]annot be used to advance the cause of the prosecution as its
evidence must stand or fall on its own weight and cannot be allowed to draw
strength from the weakness of the defense.[46] Moreover, where the
circumstances are shown to yield two or more inferences, one inconsistent with
the presumption of innocence and the other compatible with the finding of guilt,
the court must acquit the accused for the reason that the evidence does not
satisfy the test of moral certainty and is inadequate to support a judgment of
conviction.[47]

Drug addiction has been invariably denounced as an especially vicious

[48]
crime, and one of the most pernicious evils that has ever crept into our
society,[49] for those who become addicted to it not only slide into the ranks of the
living dead, what is worse, they become a grave menace to the safety of law-
abiding members of society,[50]whereas peddlers of drugs are actually agents of
destruction.[51] Indeed, the havoc created by the ruinous effects of prohibited
drugs on the moral fiber of society cannot be underscored enough. However, in
the rightfully vigorous campaign of the government to eradicate the hazards of
drug use and drug trafficking, it cannot be permitted to run roughshod over an
accuseds right to be presumed innocent until proven to the contrary and neither
can it shirk from its corollary obligation to establish such guilt beyond reasonable
doubt.

In this case, the totality of the evidence presented utterly fails to overcome
the presumption of innocence which petitioner enjoys. The failure of the
prosecution to prove all the elements of the offense beyond reasonable doubt
must perforce result in petitioners exoneration from criminal liability.
 IV.

A final word. We find it fitting to take this occasion to remind the courts to
exercise the highest degree of diligence and prudence in deliberating upon the
guilt of accused persons brought before them, especially in light of the
fundamental rights at stake. Here, we note that the courts a quo neglected to give
more serious consideration to certain material issues in the determination of the
merits of the case. We are not oblivious to the fact that in some instances, law
enforcers resort to the practice of planting evidence to extract information or
even harass civilians. Accordingly, courts are duty-bound to be [e]xtra vigilant in
trying drug cases lest an innocent person be made to suffer the unusually severe
penalties for drug offenses.[52] In the same vein, let this serve as an admonition to
police officers and public officials alike to perform their mandated duties with
commitment to the highest degree of diligence, righteousness and respect for the
law.

WHEREFORE, the assailed Decision is REVERSED and SET ASIDE. Petitioner

Arsenio Vergara Valdez is ACQUITTED on reasonable doubt. The Director of the
Bureau of Corrections is directed to cause the immediate release of petitioner,
unless the latter is being lawfully held for another cause; and to inform the Court
of

the date of his release, or the reasons for his continued confinement, within ten
(10) days from notice. No costs.
 SO ORDERED.

DANTE O. TINGA
Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

ANTONIO T. CARPIO CONCHITA CARPIO MORALES

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR.

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, 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 had been reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

Republic of the Philippines

Supreme Court
Manila
 THIRD DIVISION

ABRAHAM MICLAT, JR. y G.R. No. 176077

CERBO, Present:
Petitioner, VELASCO, JR., J., Chairperson,
PERALTA,
ABAD,
MENDOZA, and
- versus - SERENO,* JJ.

Promulgated:

August 31, 2011

PEOPLE OF THE PHILIPPINES,
Respondent.
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

PERALTA, J.:

This is a petition for review on certiorari seeking to reverse and set aside the
Decision[1] dated October 13, 2006 of the Court of Appeals (CA) in CA-G.R. CR
No. 28846, which in turn affirmed in toto the Decision of the Regional Trial Court
(RTC), Branch 120, Caloocan City, in Criminal Case No. C-66765 convicting
petitioner of Violation of Section 11, Article II of Republic Act (RA) No. 9165, or
the Comprehensive Dangerous Drugs Act of 2002.
The factual and procedural antecedents are as follows:

In an Information[2] dated November 11, 2002, petitioner Abraham C.

Miclat, Jr. was charged for Violation of Section 11, Article II of RA No. 9165, the
accusatory portion of which reads:
 That on or about the 08th day of November 2002, in Caloocan City, Metro
Manila and within the jurisdiction of this Honorable Court, the above-named
accused, without the authority of law, did then and there willfully and feloniously
have in his possession, custody and control [METHAMPHETAMINE]
HYDROCHLORIDE (SHABU) weighing 0.24 gram, knowing the same to be a
dangerous drug under the provisions of the above-cited law.
CONTRARY TO LAW. (Emphasis supplied.)[3]

Upon arraignment, petitioner, with the assistance of counsel pleaded not guilty to
the crime charged. Consequently, trial on the merits ensued.

To establish its case, the prosecution presented Police Inspector Jessie

Abadilla Dela Rosa (P/Insp Dela Rosa), Forensic Chemical Officer of the
Philippine National Police (PNP) Crime Laboratory, NPD-CLO, Caloocan City
Police Station and Police Officer 3 Rodrigo Antonio (PO3 Antonio) of the
Caloocan Police Station Drug Enforcement Unit.The testimony of the police
investigator, PO3 Fernando Moran (PO3 Moran), was dispensed with after
petitioners counsel admitted the facts offered for stipulation by the prosecution.

On the other hand, the defense presented the petitioner as its sole
witness. The testimonies of Abraham Miclat, Sr. and Ma. Concepcion Miclat, the
father and sister, respectively, of the petitioner was dispensed with after the
prosecution agreed that their testimonies were corroborative in nature.
Evidence for the Prosecution

First to testify for the prosecution was P/Insp. Jessie Abadilla Dela Rosa,
Forensic Chemical Officer of the PNP Crime Laboratory, NPD-CLO, Caloocan
City Police Station who, on the witness stand, affirmed his own findings in
Physical Science Report No. D-1222-02 (Exhs. D, D-1, and D-2) that per
qualitative examination conducted on the specimen submitted, the white
crystalline substance weighing 0.05 gram, 0.06 gram, 0.07 gram, and 0.06 gram
then contained inside four (4) separate pieces of small heat-sealed transparent
plastic sachets (Exhs. D-4 to D-7) gave positive result to the test for
Methylamphetamine (sic) Hydrochloride, a dangerous drug.
 Also, thru the testimony of PO3 Rodrigo Antonio of the Caloocan Police
Station-Drug Enforcement Unit, Samson Road, Caloocan City, the prosecution
further endeavored to establish the following:

At about 1:00 oclock in the afternoon of November 8, 2002, P/Insp. Jose

Valencia of the Caloocan City Police Station-SDEU called upon his subordinates
after the (sic) receiving an INFOREP Memo from Camp Crame relative to the
illicit and down-right drug-trading activities being undertaken along Palmera
Spring II, Bagumbong, Caloocan City involving Abe Miclat, Wily alias Bokbok
and one Mic or Jojo (Exhs. E, E-1, and (sic) E-3, and E-4). Immediately, P/Insp.
Valencia formed a surveillance team headed by SPO4 Ernesto Palting and is
composed of five (5) more operatives from the Drug Enforcement Unit, namely:
PO3 Pagsolingan, PO2 Modina, PO2 De Ocampo, and herein witness PO3
Antonio. After a short briefing at their station, the team boarded a rented
passenger jeepney and proceeded to the target area to verify the said informant
and/or memorandum.

When the group of SPO4 Palting arrived at Palmera Spring

II, Caloocan City at around 3:50 oclock that same afternoon, they were [at] once
led by their informant to the house of one Alias Abe. PO3 Antonio then
positioned himself at the perimeter of the house, while the rest of the members of
the group deployed themselves nearby. Thru a small opening in the curtain-
covered window, PO3 Antonio peeped inside and there at a distance of 1 meters,
he saw Abe arranging several pieces of small plastic sachets which he believed to
be containing shabu. Slowly, said operative inched his way in by gently pushing
the door as well as the plywood covering the same. Upon gaining entrance, PO3
Antonio forthwith introduced himself as a police officer while Abe, on the other
hand, after being informed of such authority, voluntarily handed over to the
former the four (4) pieces of small plastic sachets the latter was earlier sorting
out. PO3 Antonio immediately placed the suspect under arrest and brought him
and the four (4) pieces of plastic sachets containing white crystalline substance to
their headquarters and turned them over to PO3 Fernando Moran for proper
disposition. The suspect was identified as Abraham Miclat y Cerbo a.k.a ABE, 19
years old, single, jobless and a resident of Maginhawa Village, Palmera Spring II,
Bagumbong, Caloocan City.[4]

Evidence for the Defense

On the other hand, the [petitioner] has a different version of the incident
completely opposed to the theory of the prosecution. On the witness stand, he
alleged that at about 4:00 oclockin the afternoon of November 8, 2002, while he,
together with his sister and father, were at the upper level of their house watching
the television soap Cindy, they suddenly heard a commotion downstairs
prompting the three (3) of them to go down. There already inside were several
male individuals in civilian clothes who introduced themselves as raiding police
 operatives from the SDEU out to effect his (Abe) arrest for alleged drug
pushing. [Petitioner] and his father tried to plead his case to these officers, but to
no avail. Instead, one of the operatives even kicked [petitioner] at the back when
he tried to resist the arrest. Immediately, [petitioner] was handcuffed and together
with his father, they were boarded inside the police vehicle. That on their way to
the Bagong Silang Police Station, PO3 Pagsolingan showed to [petitioner] a small
piece of plastic sachet containing white crystalline substances allegedly recovered
by the raiding police team from their house. At around 9:00 oclock in the evening,
[petitioner] was transferred to the Sangandaan Headquarters where he was finally
detained. That upon [petitioners] transfer and detention at the said headquarters,
his father was ordered to go home.[5]

On July 28, 2004, the RTC, after finding that the prosecution has established
all the elements of the offense charged, rendered a Decision [6] convicting petitioner
of Violation of Section 11, Article II of RA No. 9165, the dispositive portion of
which reads:

WHEREFORE, from the facts established, the Court finds the

accused ABRAHAM MICLAT Y CERBO GUILTY beyond reasonable doubt
of the crime of possession of a dangerous drugs (sic) defined and penalized under
the provision of Section 11, sub-paragraph No. (3), Article II of Republic Act No.
9165 and hereby imposes upon him an indeterminate penalty of six (6) years and
one (1) day to twelve (12) years of imprisonment, in view of the absence of
aggravating circumstances. The Court likewise orders the accused to pay the
amount of Three Hundred Thousand Pesos (Php300,000.00) as fine.

Let the 0.24 gram of shabu subject matter of this case be confiscated and
forfeited in favor of the Government and to be turned over to the Philippine Drug
Enforcement Agency for proper disposition.

SO ORDERED. (Emphasis supplied.)[7]

Aggrieved, petitioner sought recourse before the CA, which appeal was later
docketed as CA-G.R. CR No. 28846.

On October 13, 2006, the CA rendered a Decision[8] affirming in toto the

decision of the RTC, the dispositive portion of which reads:

WHEREFORE, the foregoing considered, the appeal is

hereby DISMISSED and the assailed Decision AFFIRMED in toto. Costs
against the accused-appellant.
 SO ORDERED. (Emphasis supplied.)[9]

In affirming the RTC, the CA ratiocinated that contrary to the contention of the
petitioner, the evidence presented by the prosecution were all admissible against
him. Moreover, it was established that he was informed of his constitutional rights
at the time of his arrest. Hence, the CA opined that the prosecution has proven
beyond reasonable doubt all of the elements necessary for the conviction of the
petitioner for the offense of illegal possession of dangerous drugs.

Hence, the petition raising the following errors:

1. WHETHER OR NOT A POLICE SURVEILLANCE TEAM SENT TO

DETERMINE THE VERACITY OF A CAMP CRAME MEMORANDUM OF
SHABU TRADING ACTIVITY AT CALOOCAN CITY, WHICH
CONVERTED THEIR MISSION FROM SURVEILLANCE TO A RAIDING
TEAM, CAN VALIDLY MAKE AN ARREST AND SEARCH WITHOUT A
VALID WARRANT HAVING BEEN FIRST OBTAINED FROM A COURT
OF COMPETENT JURISDICTION.

2. WHETHER OR NOT PEEPING THROUGH A CURTAIN-COVERED

WINDOW IS WITHIN THE MEANING OF PLAIN VIEW DOCTRINE FOR A
WARRANTLESS SEIZURE TO BE LAWFUL.

3. WHETHER OR NOT THE BELIEF OF PO3 ANTONIO THAT THE FOUR (4)
PIECES OF PLASTIC SACHETS ALLEGEDLY BEING ARRANGED BY
PETITIONER CONTAINED SHABU JUSTIFIED HIS ENTRY INTO THE
HOUSE AND ARREST PETITIONER WITHOUT ANY WARRANT.

4. WHETHER OR NOT ARRANGING FOUR (4) PIECES OF PLASTIC

SACHETS CONSTITUTE AS A CRIME WITHIN THE MEANING OF
SECTION 5 (3), RULE 113 OF THE RULES OF COURT.

5. WHETHER OR NOT PETITIONER WAS PROPERLY APPRAISED (SIC) OF

HIS CONSTITUTIONAL RIGHTS TO BE INFORMED OF THE CAUSE AND
NATURE OF HIS ARREST AND RIGHT TO BE ASSISTED BY COUNSEL
DURING THE PERIOD OF HIS ARREST AND CONTINUED DETENTION.

6. WHETHER OR NOT THE CONVICTION BY THE LOWER COURT OF THE

PETITIONER, AS AFFIRMED BY THE HONORABLE COURT OF
 APPEALS, ON THE BASIS OF AN ILLEGAL SEARCH AND ARREST, IS
CORRECT.[10]

Simply stated, petitioner is assailing the legality of his arrest and the
subsequent seizure of the arresting officer of the suspected sachets of dangerous
drugs from him.Petitioner insists that he was just watching television with his
father and sister when police operatives suddenly barged into their home and
arrested him for illegal possession of shabu.

Petitioner also posits that being seen in the act of arranging several plastic
sachets inside their house by one of the arresting officers who was peeping through
a window is not sufficient reason for the police authorities to enter his house
without a valid search warrant and/or warrant of arrest. Arguing that the act of
arranging several plastic sachets by and in itself is not a crime per se, petitioner
maintains that the entry of the police surveillance team into his house was illegal,
and no amount of incriminating evidence will take the place of a validly issued
search warrant. Moreover, peeping through a curtain-covered window cannot be
contemplated as within the meaning of the plain view doctrine, rendering the
warrantless arrest unlawful.

Petitioner also contends that the chain of custody of the alleged illegal drugs
was highly questionable, considering that the plastic sachets were not marked at
the place of the arrest and no acknowledgment receipt was issued for the said
evidence.

Finally, petitioner claims that the arresting officer did not inform him of his
constitutional rights at any time during or after his arrest and even during his
detention. Hence, for this infraction, the arresting officer should be punished
accordingly.
 The petition is bereft of merit.

At the outset, it is apparent that petitioner raised no objection to the

irregularity of his arrest before his arraignment. Considering this and his active
participation in the trial of the case, jurisprudence dictates that petitioner is deemed
to have submitted to the jurisdiction of the trial court, thereby curing any defect in
his arrest.[11] An accused is estopped from assailing any irregularity of his arrest if
he fails to raise this issue or to move for the quashal of the information against him
on this ground before arraignment. Any objection involving a warrant of arrest or
the procedure by which the court acquired jurisdiction over the person of the
accused must be made before he enters his plea; otherwise, the objection is deemed
waived.[12]

In the present case, at the time of petitioners arraignment, there was no

objection raised as to the irregularity of his arrest. Thereafter, he actively
participated in the proceedings before the trial court. In effect, he is deemed to
have waived any perceived defect in his arrest and effectively submitted himself to
the jurisdiction of the court trying his case. At any rate, the illegal arrest of an
accused is not sufficient cause for setting aside a valid judgment rendered upon a
sufficient complaint after a trial free from error. It will not even negate the validity
of the conviction of the accused.[13]

True, the Bill of Rights under the present Constitution provides in part:

SEC. 2. The right of the people to be secure in their persons, houses,

papers, and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses
he may produce, and particularly describing the place to be searched and the
persons or things to be seized.
 However, a settled exception to the right guaranteed by the above-stated
provision is that of an arrest made during the commission of a crime, which does
not require a previously issued warrant. Such warrantless arrest is considered
reasonable and valid under Section 5 (a), Rule 113 of the Revised Rules on
Criminal Procedure, to wit:

Sec. 5. Arrest without warrant; when lawful. a peace office of 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;[14]

For the exception in Section 5 (a), Rule 113 to operate, this Court has ruled
that two (2) elements must be present: (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.[15]

In the instant case, contrary to petitioners contention, he was caught in

flagrante delicto and the police authorities effectively made a valid warrantless
arrest. The established facts reveal that on the date of the arrest, agents of the
Station Drug Enforcement Unit (SDEU) of the Caloocan City Police Station were
conducting a surveillance operation in the area of Palmera Spring II to verify the
reported drug-related activities of several individuals, which included the
petitioner. During the operation, PO3 Antonio, through petitioners window, saw
petitioner arranging several plastic sachets containing what appears to be shabu in
the living room of their home. The plastic sachets and its suspicious contents were
plainly exposed to the view of PO3 Antonio, who was only about one and one-half
meters from where petitioner was seated. PO3 Antonio then inched his way in the
house by gently pushing the door. Upon gaining entrance, the operative introduced
himself as a police officer. After which, petitioner voluntarily handed over to PO3
Antonio the small plastic sachets. PO3 Antonio then placed petitioner under arrest
and, contrary to petitioners contention, PO3 Antonio informed him of his
constitutional rights.[16] PO3 Antonio then took the petitioner and the four (4)
pieces of plastic sachets to their headquarters and turned them over to PO3
Moran. Thereafter, the evidence were marked AMC 1-4, the initials of the name of
the petitioner. The heat-sealed transparent sachets containing white crystalline
substance were submitted to the PNP Crime Laboratory for drug examination,
which later yielded positive results for the presence of methamphetamine
hydrochloride, a dangerous drug under RA No. 9165.

Considering the circumstances immediately prior to and surrounding the

arrest of the petitioner, petitioner was clearly arrested in flagrante delicto as he was
then committing a crime, violation of the Dangerous Drugs Act, within the view of
the arresting officer.

As to the admissibility of the seized drugs in evidence, it too falls within the
established exceptions.

Verily, no less than the 1987 Constitution mandates that a search and
consequent seizure must be carried out with a judicial warrant; otherwise, it
becomes unreasonable, and any evidence obtained therefrom shall be inadmissible
for any purpose in any proceeding.[17] The right against warrantless searches and
seizure, however, is subject to legal and judicial exceptions, namely:

1. Warrantless search incidental to a lawful arrest;

2. Search of evidence in "plain view";
3. Search of a moving vehicle;
4. Consented warrantless search;
5. Customs search;
6. Stop and Frisk; and
7. Exigent and emergency circumstances.[18]
 What constitutes a reasonable or unreasonable warrantless search or seizure
is purely a judicial question, determinable from the uniqueness of the
circumstances involved, including the purpose of the search or seizure, the
presence or absence of probable cause, the manner in which the search and seizure
was made, the place or thing searched, and the character of the articles procured.[19]

It is to be noted that petitioner was caught in the act of arranging the heat-
sealed plastic sachets in plain sight of PO3 Antonio and he voluntarily surrendered
them to him upon learning that he is a police officer. The seizure made by PO3
Antonio of the four plastic sachets from the petitioner was not only incidental to a
lawful arrest, but it also falls within the purview of the plain view doctrine.

Objects falling in plain view of an officer who has a right to be in a

position to have that view are subject to seizure even without a search
warrant and may be introduced in evidence. The plain view doctrine applies
when the following requisites concur: (a) the law enforcement officer in search
of the evidence has a prior justification for an intrusion or is in a position
from which he can view a particular area; (b) the discovery of evidence
in plain view is inadvertent; (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. The law enforcement officer must lawfully make an initial
intrusion or properly be in a position from which he can particularly view the
area. In the course of such lawful intrusion, he came inadvertently across a piece
of evidence incriminating the accused. The object must be open to eye and hand
and its discovery inadvertent. (Emphasis supplied.)[20]

It is clear, therefore, that an object is in plain view if the object itself is

plainly exposed to sight. Since petitioners arrest is among the exceptions to the
rule requiring a warrant before effecting an arrest and the evidence seized from the
petitioner was the result of a warrantless search incidental to a lawful arrest, which
incidentally was in plain view of the arresting officer, the results of the ensuing
search and seizure were admissible in evidence to prove petitioners guilt of the
offense charged.
 As to petitioners contention that the police failed to comply with the proper
procedure in the transfer of custody of the seized evidence thereby casting serious
doubt on its seizure, this too deserves scant consideration.

Section 21, paragraphs 1 and 2, Article II of RA No. 9165 provides:

Section 21. Custody and Disposition of Confiscated, Seized, and/or

Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled
Precursors and Essential Chemicals, Instruments/Paraphernalia and/or
Laboratory Equipment. - The PDEA shall take charge and have custody of all
dangerous drugs, plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered, for proper disposition in the
following manner:

(1) The apprehending team having initial custody and control of

the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in the presence of
the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the Department of Justice
(DOJ), and any elected public official who shall be required to sign
the copies of the inventory and be given a copy thereof;

(2) Within twenty-four (24) hours upon confiscation/seizure of

dangerous drugs, plant sources of dangerous drugs, controlled
precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment, the same
shall be submitted to the PDEA Forensic Laboratory for a
qualitative and quantitative examination;

x x x x.

Corolarilly, the implementing provision of Section 21 (a), Article II of the

Implementing Rules and Regulations (IRR) of RA No. 9165, provides:

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

x x x x.[21]

From the foregoing, it is clear that the failure of the law enforcers to comply
strictly with the rule is not fatal. It does not render petitioners arrest illegal nor the
evidence adduced against him inadmissible.[22] What is essential is the preservation
of the integrity and the evidentiary value of the seized items, as the same would be
utilized in the determination of the guilt or innocence of the accused.[23]

Here, the requirements of the law were substantially complied with and the
integrity of the drugs seized from the petitioner was preserved. More importantly,
an unbroken chain of custody of the prohibited drugs taken from the petitioner was
sufficiently established. The factual antecedents of the case reveal that the
petitioner voluntarily surrendered the plastic sachets to PO3 Antonio when he was
arrested. Together with petitioner, the evidence seized from him were immediately
brought to the police station and upon arriving thereat, were turned over to PO3
Moran, the investigating officer. There the evidence was marked. The turn-over of
the subject sachets and the person of the petitioner were then entered in the official
blotter. Thereafter, the Chief of the SDEU, Police Senior Inspector Jose
Ramirez Valencia, endorsed the evidence for laboratory examination to the
National Police District PNP Crime Laboratory. The evidence was delivered by
PO3 Moran and received by Police Inspector Jessie Dela Rosa.[24] After a
qualitative examination of the contents of the four (4) plastic sachets by the latter,
the same tested positive for methamphetamine hydrochloride, a dangerous drug.[25]
 An unbroken chain of custody of the seized drugs had, therefore, been
established by the prosecution from the arresting officer, to the investigating
officer, and finally to the forensic chemist. There is no doubt that the items seized
from the petitioner at his residence were also the same items marked by the
investigating officer, sent to the Crime Laboratory, and later on tested positive for
methamphetamine hydrochloride.

For conviction of illegal possession of a prohibited drug to lie, the following

elements must be established: (1) the accused was in possession of an item or an
object identified to be a prohibited or regulated drug; (2) such possession is not
authorized by law; and (3) the accused was freely and consciously aware of being
in possession of the drug.[26] Based on the evidence submitted by the prosecution,
the above elements were duly established in the present case. Mere possession of a
regulated drug per seconstitutes prima facie evidence of knowledge or animus
possidendi sufficient to convict an accused absent a satisfactory explanation of
such possession the onus probandi is shifted to the accused, to explain the absence
of knowledge or animus possidendi.[27]

It is a settled rule that in cases involving violations of the Comprehensive

Dangerous Drugs Act, credence is given to prosecution witnesses who are police
officers for they are presumed to have performed their duties in a regular
manner.[28] Although not constrained to blindly accept the findings of fact of trial
courts, appellate courts can rest assured that such facts were gathered from
witnesses who presented their statements live and in person in open court. In cases
where conflicting sets of facts are presented, the trial courts are in the best position
to recognize and distinguish spontaneous declaration from rehearsed spiel,
straightforward assertion from a stuttering claim, definite statement from tentative
disclosure, and to a certain degree, truth from untruth.[29]
 In the present case, there is no compelling reason to reverse the findings of
fact of the trial court. No evidence exist that shows any apparent inconsistencies in
the narration of the prosecution witnesses of the events which transpired and led to
the arrest of petitioner. After a careful evaluation of the records, We find no error
was committed by the RTC and the CA to disregard their factual findings that
petitioner committed the crime charged against him.

Against the overwhelming evidence of the prosecution, petitioner merely

denied the accusations against him and raised the defense of frame-up. The defense
of denial and frame-up has been invariably viewed by this Court with disfavor, for
it can easily be concocted and is a common and standard defense ploy in
prosecutions for violation of the Dangerous Drugs Act. In order to prosper, the
defense of denial and frame-up must be proved with strong and convincing
evidence.[30]

As to the penalty, while We sustain the amount of fine, the indeterminate

sentence imposed should, however, be modified.
Section 11, Article II, RA No. 9165, otherwise known as the Comprehensive
Dangerous Drugs Act of 2002, provides:

Section 11. Possession of Dangerous Drugs. The penalty of life

imprisonment to death and a fine ranging from Five hundred thousand pesos
(P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any
person, who, unless authorized by law, shall possess any dangerous drug in the
following quantities, regardless of the degree of purity thereof:

x x x x.

Otherwise, if the quantity involved is less than the foregoing quantities,

the penalties shall be graduated as follows:

x x x x.

(3) Imprisonment of twelve (12) years and one (1) day to

twenty (20) years and a fine ranging from Three hundred thousand
pesos (P300,000.00) to Four hundred thousand pesos
 (P400,000.00), if the quantities of dangerous drugs are less than
five (5) grams of opium, morphine, heroin, cocaine or cocaine
hydrochloride, marijuana resin or marijuana resin
oil, methamphetamine hydrochloride or "shabu", or other
dangerous drugs such as, but not limited to, MDMA or "ecstasy,"
PMA, TMA, LSD, GHB, and those similarly designed or newly-
introduced drugs and their derivatives, without having any
therapeutic value or if the quantity possessed is far beyond
therapeutic requirements; or less than three hundred (300) grams of
marijuana.[31]

From the foregoing, illegal possession of less than five (5) grams of
methamphetamine hydrochloride or shabu is penalized with 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). The evidence adduced by the prosecution established beyond
reasonable doubt that petitioner had in his possession 0.24 gram of shabu, or less
than five (5) grams of the dangerous drug, without any legal authority.

Applying the Indeterminate Sentence Law, the minimum period of the

imposable penalty shall not fall below the minimum period set by the law; the
maximum period shall not exceed the maximum period allowed under the law;
hence, the imposable penalty should be within the range of twelve (12) years and
one (1) day to fourteen (14) years and eight (8) months.
WHEREFORE, premises considered, the appeal is DENIED. The
Decision dated October 13, 2006 of the Court of Appeals in CA-G.R. CR No.
28846 is AFFIRMED with MODIFICATION. Petitioner is sentenced to suffer
the indeterminate sentence of twelve (12) years and one (1) day to fourteen (14)
years and eight (8) months.

SO ORDERED.
 DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

ROBERTO A. ABAD JOSE CATRAL MENDOZA

Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO

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.

PRESBITERO J. VELASCO, JR.

Associate Justice
Third Division, Chairperson

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairpersons Attestation, I certify 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.

SECOND DIVISION

PEOPLE OF THE G.R. No. 191366

PHILIPPINES,
Plaintiff-Appellee, Present:
CARPIO, J.,Chairperson,
NACHURA,
PERALTA,
ABAD, and
- versus - MENDOZA, JJ.

ARNOLD MARTINEZ Y
ANGELES, EDGAR DIZON
Y FERRER, REZIN MARTINEZ
Y CAROLINO, and RAFAEL
GONZALES Y CUNANAN, Promulgated:
Accused-Appellants. December 13, 2010

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

DECISION
MENDOZA, J.:

This is an appeal from the August 7, 2009 Decision[1] of the Court of

Appeals (CA), in CA-G.R. HC-NO. 03269, which affirmed the February 13, 2008
Decision[2] of the Regional Trial Court, Branch 41, Dagupan City (RTC), in
Criminal Case No. 2006-0525-D, finding the accused guilty of violating Section
13, in relation to Section 11, Article II of Republic Act No. 9165 for Possession of
Dangerous Drugs During Parties, Social Gatherings or Meetings.

The Facts

The Information indicting the accused reads:

That on or about the 2nd day of September 2006, in the City of

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

Contrary to Section 13, Article II, R.A. 9165.[3]

Version of the Prosecution

As culled from the testimonies of prosecution witnesses, Police Officer 1

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

As the police officers entered the gate of the house, they saw accused
Orlando Doria (Doria) coming out of the side door and immediately arrested
him. Inside the house, they saw accused Gonzales, Arnold Martinez (A. Martinez),
Edgar Dizon (Dizon), and Rezin Martinez (R. Martinez) in a room. The four were
surprised by the presence of the police. In front of them were open plastic sachets
(containing shabu residue), pieces of rolled used aluminum foil and pieces of used
aluminum foil.
 The accused were arrested and brought to the police precinct. The items
found in the room were seized and turned over to the Pangasinan Provincial Police
Crime Laboratory Officer, P/Insp. Maranion. The latter conducted a laboratory
examination on the seized items and all 115 plastic sachets, 11 pieces of rolled
used aluminum foil, and 27 of the 49 pieces of used aluminum foil tested positive
for methamphetamine hydrochloride. The accused were subjected to a drug test
and, except for Doria, they were found to be positive for methamphetamine
hydrochloride.

Version of the Defense

The defense, through its witnesses, accused A. Martinez, Dizon, and R. Martinez,
claimed that in the morning of September 2, 2006, the three of them were along
Arellano Street in Trinidad Subdivision, Dagupan City, to meet with a certain
Apper who bumped the passenger jeep of R. Martinez and who was to give the
materials for the painting of said jeep. As they were going around the subdivision
looking for Apper, they saw Gonzales in front of his house and asked him if he
noticed a person pass by. While they were talking, Doria arrived. It was then that
five to seven policemen emerged and apprehended them. They were handcuffed
and brought to the police station in Perez, Dagupan City, where they were
incarcerated and charged with sniffing shabu.

The Ruling of the RTC

The case against Doria was dismissed on a demurrer to evidence.

On February 13, 2008, the RTC rendered its decision, the dispositve portion of
which reads:

WHEREFORE, premises considered, judgment is hereby rendered

finding accused ARNOLD MARTINEZ y Angeles, EDGAR DIZON y Ferrer,
REZIN MARTINEZ y Carolino, and RAFAEL GONZALES y Cunanan
GUILTY beyond reasonable doubt of the crime of Possession of Dangerous
Drugs During Parties, Social Gatherings or Meetings defined and
penalized under Section 13 in relation to Section 11, Article II of Republic
Act 9165, and each of them is sentenced to suffer the penalty of life
imprisonment and to pay the fine in the amount of P500,000.00, and to
pay the cost of suit.
 The subject items are hereby forfeited in favor of the government
and to be disposed of in accordance with the law.

SO ORDERED.[4]

The RTC was of the view that the positive testimony of prosecution witness
PO1 Azardon, without any showing of ill-motive on his part, prevailed over the
defenses of denial and alibi put up by the accused. The accused were held to have
been in constructive possession of the subject items. A conspiracy was also found
present as there was a common purpose to possess the dangerous drug.

The Ruling of the CA

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

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

Assignment of Errors

For accused Arnold Martinez, Edgar Dizon and Rezin Martinez

1. The lower court erred in finding the accused-appellants

to be having a pot session at the time of their arrest;

2. The lower court erred in not seeing through the antics of the
police to plant the shabu paraphernalia to justify the arrest of
the accused-appellants without warrant;
 3. The lower court erred in not finding that the corpus delicti has
not been sufficiently established;

4. The lower court erred in not finding the uncorroborated

testimony of PO1 Azardon insufficient to convict the accused-
appellants of the crime charged;

5. The lower court erred in not acquitting the accused-appellants.

For accused Rafael Gonzales

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE

ACCUSED-APPELLANT DESPITE THE PROSECUTIONS FAILURE TO
OVERTHROW THE CONSTITUTIONAL PRESUMPTION OF
INNOCENCE.

II

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE

ACCUSED-APPELLANT DESPITE THE PROSECUTIONS FAILURE TO
ESTABLISH THE CHAIN OF CUSTODY OF THE ALLEGED
CONFISCATED DRUG.

After an assiduous assessment of the evidentiary records, the Court finds

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

Illegal Arrest, Search and Seizure

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

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

The State cannot, in a manner contrary to its constitutional guarantee,

intrude into the persons of its citizens as well as into their houses, papers and
effects.[10] Sec. 2, Art. III, of the 1987 Constitution provides:

Section 2. - The right of the people to be secure in their persons, houses,

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

This constitutional guarantee, however, is not a blanket prohibition against

all searches and seizures without warrant. Arrests and seizures in the following
instances are allowed even in the absence of a warrant (i) warrantless search
incidental to a lawful arrest;[11] (ii) search of evidence in "plain view;" (iii) search
of a moving vehicle; (iv) consented warrantless search; (v) customs search; (vi)
stop and frisk; and (vii) exigent and emergency circumstances.[12]

This case would appear to fall under either a warrantless search incidental to
a lawful arrest or a plain view search, both of which require a lawful arrest in order
to be considered valid exceptions to the constitutional guarantee. Rule 113 of the
Revised Rules of Criminal Procedure provides for the circumstances under which a
warrantless arrest is lawful. Thus:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a
private person may, without a warrant, arrest a person:
 (a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense;
(b) When an offense has just been committed and he has
probable cause to believe based on personal knowledge of
facts or circumstances that the person to be arrested has
committed it; and

(c) When the person to be arrested is a prisoner who has

escaped from a penal establishment or place where he is
serving final judgment or is temporarily confined while his
case is pending, or has escaped while being transferred
from one confinement to another.

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

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

Q: I go back to the information referred to you by the informant, did he

not tell you how many persons were actually conducting the pot
session?
A: Yes, sir.

Q: When you went to the place of Rafael Gonzales, of course you were not
armed with a search warrant, correct?
A: None, sir.

Q: Before the information was given to you by your alleged informant, you
did not know personally Rafael Gonzales?
A: I have not met [him] yet but I heard his name, sir.

Q: When this informant told you that he was told that there was [an]
ongoing pot session in the house of Rafael Gonzales, was this report
to you placed in the police blotter before you proceeded to the house
of Rafael Gonzales?
A: I think it was no longer recorded, sir.
Q: In other words, you did not even bother to get the personal data or
identity of the person who told you that he was allegedly informed
that there was an ongoing pot session in the house of Rafael
Gonzales?
A: What I know is that he is a jeepney driver of a downtown jeepney but he
does not want to be identified because he was afraid, sir.

Q: And likewise, he did not inform you who told him that there was an
ongoing pot session in the house of Rafael Gonzales?
A: No more, sir.

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

xxx

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

Q: You did not also see the alleged paraphernalia as well as the plastic
sachet of shabu on the table while you were outside the premises of
the property of Rafael Gonzales?

xxx

Q: Before they entered the premises they could not see the paraphernalia?

COURT: Answer.

A: Of course because they were inside the room, how could we see them,
sir.

Q: But still you entered the premises, only because a certain person who
told you that he was informed by another person that there was an
ongoing pot session going on inside the house of Rafael Gonzales?
A: Yes, sir.

Q: And that is the only reason why you barged in inside the house of Rafael
Gonzales and you arrested the persons you saw?
A: Yes, sir.[14]
 Paragraph (c) of Rule 113 is clearly inapplicable to this case. Paragraphs (a)
and (b), on the other hand, may be applicable and both require probable cause to be
present in order for a warrantless arrest to be valid. Probable cause has been held to
signify a reasonable ground of suspicion supported by circumstances sufficiently
strong in themselves to warrant a cautious mans belief that the person accused is
guilty of the offense with which he is charged.[15]

Although this Court has ruled in several dangerous drugs cases [16] that tipped
information is sufficient probable cause to effect a warrantless search,[17] such
rulings cannot be applied in the case at bench because said cases involve either a
buy-bust operation or drugs in transit, basically, circumstances other than the sole
tip of an informer as basis for the arrest. None of these drug cases involve police
officers entering a house without warrant to effect arrest and seizure
based solely on an informers tip. The case ofPeople v. Bolasa[18] is informative on
this matter.

In People v. Bolasa, an anonymous caller tipped off the police that a man
and a woman were repacking prohibited drugs at a certain house. The police
immediately proceeded to the house of the suspects. They walked towards the
house accompanied by their informer. When they reached the house, they peeped
inside through a small window and saw a man and woman repacking marijuana.
They then entered the house, introduced themselves as police officers, confiscated
the drug paraphernalia, and arrested the suspects. This Court ruled:

The manner by which accused-appellants were apprehended does

not fall under any of the above-enumerated categories. Perforce, their
arrest is illegal. First, the arresting officers had no personal knowledge that
at the time of their arrest, accused-appellants had just committed, were
committing, or were about to commit a crime. Second, the arresting
officers had no personal knowledge that a crime was committed nor did
they have any reasonable ground to believe that accused-appellants
committed it. Third, accused-appellants were not prisoners who have
escaped from a penal establishment.
Neither can it be said that the objects were seized in plain view.
First, there was no valid intrusion. As already discussed, accused-
appellants were illegally arrested. Second, the evidence, i.e., the tea bags
later on found to contain marijuana, was not inadvertently discovered. The
police officers intentionally peeped first through the window before they
saw and ascertained the activities of accused-appellants inside the room.
In like manner, the search cannot be categorized as a search of a moving
vehicle, a consented warrantless search, a customs search, or a stop and
 frisk; it cannot even fall under exigent and emergency circumstances, for
the evidence at hand is bereft of any such showing.
On the contrary, it indicates that the apprehending officers should
have conducted first a surveillance considering that the identities and
address of the suspected culprits were already ascertained. After
conducting the surveillance and determining the existence of probable
cause for arresting accused-appellants, they should have secured a search
warrant prior to effecting a valid arrest and seizure. The arrest being
illegal ab initio, the accompanying search was likewise illegal. Every
evidence thus obtained during the illegal search cannot be used against
accused-appellants; hence, their acquittal must follow in faithful obeisance
to the fundamental law.[19]

It has been held that personal knowledge of facts in arrests without warrant
must be based upon probable cause, which means an actual belief or reasonable
grounds of suspicion. The grounds of suspicion are reasonable when the suspicion,
that the person to be arrested is probably guilty of committing an offense, is based
on actual facts, that is, supported by circumstances sufficiently strong in
themselves to create the probable cause of guilt of the person to be arrested. [20]

As to paragraph (a) of Section 5 of Rule 113, the arresting officers had no

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

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

Q: What exactly [did] that informant tell you?

A: He told us that somebody told him that there was an ongoing pot
session in the house of one of the accused Rafael Gonzales, sir.

Q: You mean to say that it was not the informant himself to whom the
information originated but from somebody else?
A: That was what he told me, sir.
 Q: Because of that you proceeded to where the alleged pot session was
going on? [No Answer]

Q: Did you[r] informant particularly pinpointed [sic] to where the alleged

pot session was going on?
A: No more because he did not go with us, sir.

Q: So you merely relied on what he said that something or a pot session

was going on somewhere in Arellano but you dont know the exact
place where the pot session was going on?
A: Yes, sir.

Q: And your informant has no personal knowledge as to the veracity of the

alleged pot session because he claimed that he derived that
information from somebody else?
A: This is what he told us that somebody told him that there was an
ongoing pot session, sir.

Q: Despite of [sic] that information you proceeded to where?

A: Trinidad Subdivision, sir.

xxx

Q: Mr. Witness, did your informant named [sic] those included in the
alleged pot session?
A: No, sir.

Q: That was, because your informant dont [sic] know physically what was
really happening there?
A: He was told by another person that there was an ongoing pot session
there, sir.[21] [Emphasis supplied]

Neither can it be said that the subject items were seized in plain view. The
elements of plainview are: (a) a prior valid intrusion based on the valid warrantless
arrest in which the police are legally present in the pursuit of their official duties;
(b) the evidence was inadvertently discovered by the police who have the right to
be where they are; (c) the evidence must be immediately apparent; and, (d) "plain
view" justified mere seizure of evidence without further search.[22]

The evidence was not inadvertently discovered as the police officers

intentionally entered the house with no prior surveillance or investigation before
they discovered the accused with the subject items. If the prior peeking of the
police officers in Bolasa was held to be insufficient to constitute plain view, then
more so should the warrantless search in this case be struck down. Neither can the
search be considered as a search of a moving vehicle, a consented warrantless
search, a customs search, a stop and frisk, or one under exigent and emergency
circumstances.

The apprehending officers should have first conducted a surveillance

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

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

Chain of Custody

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

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

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

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

As a method of authenticating evidence, the chain of custody rule

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

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

custody as follows:

b. Chain of Custody means the duly recorded authorized movements

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

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

SEC. 21. Custody and Disposition of Confiscated, Seized, and/or

Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA
shall take charge and have custody of all dangerous drugs, plant sources of
dangerous drugs controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so confiscated,
seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs
shall, immediately after seizure and confiscation, physically inventory and
photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative
or counsel, a representative from the media and the Department of Justice
(DOJ), and any elected public official who shall be required to sign the
copies of the inventory and be given a copy thereof.

People v. Habana thoroughly discusses the proper procedure for the custody
of seized or confiscated items in dangerous drugs cases in order to ensure their
identity and integrity, as follows:

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

If the substance is not in a plastic container, the officer should put it

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

If the sealing of the seized substance has not been made, the
prosecution would have to present every police officer, messenger,
laboratory technician, and storage personnel, the entire chain of custody,
no matter how briefly ones possession has been. Each of them has to
testify that the substance, although unsealed, has not been tampered with
or substituted while in his care.[29]

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

(a) The apprehending officer/team having initial custody and control of the
drugs shall, immediately after seizure and confiscation, physically
inventory and photograph the same in the presence of the accused or the
person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public official who shall be
required to sign the copies of the inventory and be given a copy
thereof: Provided, that the physical inventory and photograph shall be
conducted at the place where the search warrant is served; or at the nearest
police station or at the nearest office of the apprehending officer/team,
whichever is practicable, in case of warrantless seizures; Provided, further
that non-compliance with these requirements under justifiable grounds, as
long as the integrity and the evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall not render void and invalid
such seizures of and custody over said items. [Emphasis supplied]
Accordingly, non-compliance with the prescribed procedural requirements will not
necessarily render the seizure and custody of the items void and invalid, provided
that (i) there is a justifiable ground for such non-compliance, and (ii) the integrity
and evidentiary value of the seized items are properly preserved. In this case,
however, no justifiable ground is found availing, and it is apparent that there was a
failure to properly preserve the integrity and evidentiary value of the seized items
to ensure the identity of the corpus delictifrom the time of seizure to the time of
presentation in court. A review of the testimonies of the prosecution witnesses and
the documentary records of the case reveals irreparably broken links in the chain of
custody.

According to the apprehending police officers in their Joint Affidavit, the

following were confiscated from the accused, to wit:

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

residues.

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

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

residues.

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

residues.

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

[Emphases supplied]

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

a) Pieces of used empty small plastic sachets with suspected shabu

residues marked DC&A-1.

b) Pieces of used rolled and cut aluminum foil with suspected shabu
residues marked DC&A-2.
 c) Pieces of used cut aluminum foil with suspected shabu residues
marked DC&A-3.[32]
[Emphases supplied]

The letter-request and above-mentioned items were submitted to P/Insp.

Maranion by SPO3 Froilan Esteban (SPO3 Esteban). Final Chemistry Report No.
D-042-06L listed the specimens which were submitted for testing, to wit:
SPECIMENS SUBMITTED:

A A1 to A115 One Hundred fifteen (115) open transparent plastic sachet

with tag each containing suspected shabu residue without markings.

B B1 to B11 Eleven (11) rolled used aluminum foil with tag each containing
suspected shabu residue without markings.

C C1 to C49 Forty-nine (49) used aluminum foil with tag each containing
suspected shabu residue without markings.[33]
[Emphases supplied]

Three days after the subject items were seized, or on September 5, 2006, a
Confiscation Receipt was issued by PO1 Azardon and PO1 Dela Cruz, which
reads:

DCPS AID SOTG 05 September 2006

CONFISCATION RECEIPT

TO WHOM IT MAY CONCERN:

THIS IS TO CERTIFY that on or about 12:45 noon of September 4,

2006, we together with our precinct supervisor, SPO4 Pedro Belen Jr., and
SWAT members composed of SPO1 Marlon Decano, PO3 Manuel Garcia,
PO2 Adriano Cepiroto and PO1 Aldrin Guarin apprehended the following
names of persons of ARNOLD MARTINEZ Y ANGELES, 37 yrs old,
married, jobless, a resident of Lucao Dist., this city; EDGAR DIZON Y
FERRER, 36 yrs old, single, tricycle driver, a resident of 471 Lucao Dist.,
this city. REZIN MARTINEZ Y CAROLINO, 44 yrs old, married, jitney
driver, a resident of Lucao Disttrict this city; ROLAND DORIA Y DIAZ, 39
yrs old, married, businessman, resident of Cabeldatan, Malasiqui,
Pangasinan and RAFAEL GONZALES Y CUNANAN, 49 yrs old, separated,
jobless and a resident of Trinidad Subd., Arellano-Bani this city.
 Suspects were duly informed of their constitutional rights and were
brought to Dagupan City Police
Station, Perez Market Site Dagupan City and indorsed to Duty Desk
Officer to record the incident and the sachet of suspected Shabu
Paraphernalias were brought to PNP Crime Laboratory, Lingayen,
Pangasinan for Laboratory Examination.

Seizing Officer:

(sgd.) (sgd.)
PO1 Bernard B Azardon PO1 Alejandro Dela Cruz
Affiant Affiant

Remarks:

Refused to Signed
Refused to Signed
Refused to Signed
Refused to Signed
Refused to Signed[34]
[Emphases supplied]

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

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

A review of the chain of custody indicates, however, that the CA is

mistaken.

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

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

Q: Such that you did not even inform the PDEA before you barged in that
place of Rafael Gonzales?
A: It was so suddenly, [sic] sir.

Q: And that explains the reason why you were not able to have pictures
taken, is that correct?
A: Yes, sir.[37]
[Emphasis supplied]

The Court does not find such to be a justifiable ground to excuse non-
compliance. The suddenness of the situation cannot justify non-compliance with
the requirements. The police officers were not prevented from preparing an
inventory and taking photographs. In fact, Section 21(a) of the IRR of R.A. No.
9165 provides specifically that in case of warrantless seizures, the inventory and
photographs shall be done at the nearest police station or at the nearest office of the
apprehending officer/team. Whatever effect the suddenness of the situation may
have had should have dissipated by the time they reached the police station, as the
suspects had already been arrested and the items seized.Moreover, it has been held
that in case of warrantless seizures nothing prevents the apprehending officer from
immediately conducting the physical inventory and photography of the items at
their place of seizure, as it is more in keeping with the laws intent to preserve their
integrity and evidentiary value.[38]
This Court has repeatedly reversed conviction in drug cases for failure to comply
with Section 21 of R.A. No. 9165, resulting in the failure to properly preserve the
integrity and evidentiary value of the seized items. Some cases are People v.
Garcia,[39] People v. Dela Cruz,[40] People v. Dela Cruz,[41] People v. Santos,
Jr.,[42] People v. Nazareno,[43]People v. Orteza,[44] Zarraga v.
[45] [46]
People, and People v. Kimura.

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

For greater specificity, "marking" means the placing by the

apprehending officer or the poseur-buyer of his/her initials and signature
on the item/s seized. x x x Thereafter, the seized items shall be placed in
an envelope or an evidence bag unless the type and quantity of the seized
items require a different type of handling and/or container. The evidence
bag or container shall accordingly be signed by the handling officer and
turned over to the next officer in the chain of custody.[47] [Emphasis in the
original]

Nowhere in the testimony of PO1 Azardon or in his Joint Affidavit with

PO1 Dela Cruz does it appear that the subject items were at all marked. It was only
in the letter-request for laboratory examination that the subject items were
indicated to have been marked with DC&A-1, DC&A-2 and DC&A-3. There is no
showing, however, as to who made those markings and when they were
made. Moreover, those purported markings were never mentioned when the
subject items were identified by the prosecution witnesses when they took the
stand.

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

This Court has acquitted the accused for the failure and irregularity in the
marking of seized items in dangerous drugs cases, such as Zarraga v.
People,[53] People v. Kimura,[54] and People v. Laxa.[55]

Third, the Confiscation Receipt relied upon by the prosecution and the courts
below gives rise to more uncertainty. Instead of being prepared on the day of the
seizure of the items, it was prepared only three days after. More important, the
receipt did not even indicate exactly what items were confiscated and their
quantity. These are basic information that a confiscation receipt should provide.
The only information contained in the Confiscation Receipt was the fact of arrest
of the accused and the general description of the subject items as the sachet of
suspected Shabu paraphernallas were brought to the PNP Crime Laboratory. The
receipt is made even more dubious by PO1 Azardons admission in his
testimony[56] that he did not personally prepare the Confiscation Receipt and he did
not know exactly who did so.

Fourth, according to the Certification[57] issued by the Dagupan Police Station, the
subject items were indorsed by PO1 Dela Cruz to Duty Investigator SPO1 Urbano
for proper disposition. These were later turned over by SPO3 Esteban to P/Insp.
Maranion. There is, however, no showing of how and when the subject items were
transferred from SPO1 Urbano to SPO3 Esteban.

Fifth, P/Insp. Maranion appears to be the last person in the chain of custody. No
witness testified on how the subject items were kept after they were tested prior to
their presentation in court. This Court has highlighted similar shortcomings
in People v. Cervantes,[58] People v. Garcia,[59] People v. Sanchez,[60] and Malillin
v. People.[61]

More irregularities further darken the cloud as to the guilt of the

accused. Contrary to PO1 Azardons testimony[62] that they were tipped off by a
concerned citizen while at the police station, the Letter[63] to the Executive Director
of the DDB states that the apprehending officers were tipped off while conducting
monitoring/surveillance. Said letter also indicates, as does the Confiscation
Receipt, that the arrest and seizure occurred on September 4, 2006, and
not September 2, 2006, as alleged in the Information. It was also mentioned in the
aforementioned Certification of the Dagupan Police and Joint Affidavit of the
police officers that a glass tube suspected to contain shabu residue was also
confiscated from the accused. Interestingly, no glass tube was submitted for
laboratory examination.

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

Regarding the lack of prior coordination with the PDEA provided in Section
86 of R.A. No. 9165, in People v. Sta. Maria,[65] this Court held that said section
was silent as to the consequences of such failure, and said silence could not be
interpreted as a legislative intent to make an arrest without the participation of
PDEA illegal, nor evidence obtained pursuant to such an arrest
inadmissible. Section 86 is explicit only in saying that the PDEA shall be the lead
agency in the investigation and prosecution of drug-related cases. Therefore, other
law enforcement bodies still possess authority to perform similar functions as the
PDEA as long as illegal drugs cases will eventually be transferred to the latter.

Let it be stressed that non-compliance with Section 21 of R.A. No. 9165

does not affect the admissibility of the evidence but only its weight. [66] Thus, had
the subject items in this case been admissible, their evidentiary merit and probative
value would be insufficient to warrant conviction.

It may be true that where no ill motive can be attributed to the police
officers, the presumption of regularity in the performance of official duty should
prevail. However, such presumption obtains only when there is no deviation from
the regular performance of duty.[67] Where the official act in question is irregular
on its face, the presumption of regularity cannot stand.
 In this case, the official acts of the law enforcers were clearly shown and
proven to be irregular. When challenged by the evidence of a flawed chain of
custody, the presumption of regularity cannot prevail over the presumption of
innocence of the accused.[68]

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

It is recognized that strict compliance with the legal prescriptions of R.A.

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

On a final note, this Court takes the opportunity to be instructive on Sec.

11 (Possession of Dangerous Drugs) and Sec. 15[72] (Use of Dangerous Drugs) of
[71]

R.A. No. 9165, with regard to the charges that are filed by law enforcers. This
Court notes the practice of law enforcers of filing charges under Sec. 11 in cases
where the presence of dangerous drugs as basis for possession is only and solely in
the form of residue, being subsumed under the last paragraph of Sec. 11. Although
not incorrect, it would be more in keeping with the intent of the law to file charges
under Sec. 15 instead in order to rehabilitate first time offenders of drug use,
provided that there is a positive confirmatory test result as required under Sec. 15.
The minimum penalty under the last paragraph of Sec. 11 for the possession of
residue is imprisonment of twelve years and one day, while the penalty under Sec.
15 for first time offenders of drug use is a minimum of six months rehabilitation in
a government center. To file charges under Sec. 11 on the basis of residue alone
would frustrate the objective of the law to rehabilitate drug users and provide them
with an opportunity to recover for a second chance at life.
In the case at bench, the presence of dangerous drugs was only in the form of
residue on the drug paraphernalia, and the accused were found positive for use of
dangerous drugs. Granting that the arrest was legal, the evidence obtained
admissible, and the chain of custody intact, the law enforcers should have filed
charges under Sec. 15, R.A. No. 9165 or for use of dangerous drugs and, if there
was no residue at all, they should have been charged under Sec. 14[73] (Possession
of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous
Drugs During Parties, Social Gatherings or Meetings). Sec. 14 provides that the
maximum penalty under Sec. 12[74] (Possession of Possession of Equipment,
Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs) shall be
imposed on any person who shall possess any equipment, instrument, apparatus
and other paraphernalia for dangerous drugs. Under Sec. 12, the maximum penalty
is imprisonment of four years and a fine of P50,000.00. In fact, under the same
section, the possession of such equipment, apparatus or other paraphernalia
is prima facie evidence that the possessor has used a dangerous drug and shall be
presumed to have violated Sec. 15.

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

WHEREFORE, the August 7, 2009 Decision of the Court of Appeals in CA-G.R.

HC-NO. 03269 is REVERSED and SET ASIDE and another judgment
enteredACQUITTING the accused and ordering their immediate release from
detention, unless they are confined for any other lawful cause.

Let a copy of this decision be furnished the Director of the Bureau of

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

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

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ANTONIO EDUARDO B. NACHURA DIOSDADO M. PERALTA

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.

ANTONIO T. CARPIO
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairpersons Attestation, I certify 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.

RENATO C. CORONA
Chief Justice

[1]
Rollo, pp. 2-14. Penned by Associate Justice Sixto C. Marella, Jr. with Associate Justice Magdangal M. De Leon
and Associate Justice Japar B. Dimaampao, concurring.
[2]
Records, pp. 140-145. Penned by Judge Emma M. Torio.
[3]
Id. at 1.
[4]
Id. at 145.
[5]
People v. Palma, G.R. No. 189279, March 9, 2010.
[6]
People v. Racho, G.R. No. 186529, August 3, 2010.
[7]
C.F. Sharp & Co., Inc. v. Northwest Airlines, Inc., 431 Phil 11, 22 (2002).
[8]
People v. Bodoso, 446 Phil. 838, 849-850 (2003).
[9]
San Luis v. Rojas, G.R. No. 159127, March 3, 2008, 547 SCRA 345, 357-358.
[10]
People v. Siton, G.R. No. 169364, September 18, 2009, 600 SCRA 476, 493.
[11]
Rules of Court, Rule 126, Sec. 13.
[12]
People v. Bolasa, 378 Phil. 1073, 1078-1079 (1999).
[13]
Exhibit E, folder of exhibits, p. 11.
[14]
TSN, February 23, 2007, pp. 10-16.
[15]
People v. Ayangao, 471 Phil. 379, 388 (2004).
[16]
Id., People v. Valdez, 363 Phil. 481 (1999); People v. Montilla, 349 Phil. 640 (1998).
[17]
Id.
[18]
Supra note 13.
[19]
Supra note 13.
[20]
People v. Doria, 361 Phil. 595, 632 (1999).
[21]
TSN, February 23, 2007, pp. 3-5.
[22]
Supra note 13.
[23]
People v. Valdez, 395 Phil. 206, 218 (2000).
[24]
People v. Racho, G.R. No. 186529, August 3, 2010; citing People v. Nuevas, G.R. No. 170233, February 22,
2007, 516 SCRA 463, 484-485.
[25]
People v. Gutierrez, G.R. No. 177777, December 4, 2009, 607 SCRA 377, 390-391.
[26]
People v. Garcia, G.R. No. 173480, February 25, 2009, 580 SCRA 259, 274.
[27]
G.R. No. 172953, April 30, 2008, 553 SCRA 619, 632-633.
[28]
Guidelines on the Custody and Disposition of Seized Dangerous Drugs, Controlled Precursors and Essential
Chemicals, and Laboratory Equipment.
[29]
G.R. No. 188900, March 5, 2010.
[30]
Exhibit E, folder of exhibits, p. 11.
[31]
Exhibit G, folder of exhibits, p. 13.
[32]
Exhibit A, folder of exhibits, p. 6.
[33]
Exhibit D, folder of exhibits, p. 10.
[34]
Exhibit F, folder of exhibits, p. 12.
[35]
TSN, February 9, 2007, p. 6; and TSN, January 22, 2007, pp. 10-12.
[36]
TSN, February 23, 2007, p. 7.
[37]
TSN, February 23, 2007, p. 12.
[38]
People v. Sanchez, G.R. No. 175832, October 15, 2008, 569 SCRA 194, 218.
[39]
Supra note 27.
[40]
G.R. No. 177222, October 29, 2008, 570 SCRA 273.
[41]
G.R. No. 181545, October 8, 2008, 568 SCRA 273.
[42]
G.R. No. 175593, October 17, 2007, 536 SCRA 489.
[43]
G.R. No. 174771, September 11, 2007, 532 SCRA 630.
[44]
G.R. No. 173051, July 31, 2007, 528 SCRA 750.
[45]
G.R. No. 162064, March 14, 2006, 484 SCRA 639.
[46]
471 Phil. 895 (2004).
[47]
Supra note 38.
[48]
Exhibit C, folder of exhibits, p. 9; Exhibit D, folder of exhibits, p. 10.
[49]
Exhibit A, folder of exhibits, p. 6.
[50]
Exhibit E, folder of exhibits, p. 11; Exhibit G, folder of exhibits, p. 13.
[51]
Exhibit B, folder of exhibits, p. 7; Exhibit F, folder of exhibits, p. 12.
[52]
TSN, January 22, 2007, pp. 10-12.
[53]
Supra note 46.
[54]
Supra note 47.
[55]
414 Phil. 156 (2001).
[56]
TSN, February 9, 2007, p. 7; TSN, February 23, 2007, pp. 6-7.
[57]
Exhibit G, folder of exhibits, p. 13.
[58]
G.R. No. 181494, March 17, 2009, 581 SCRA 762.
[59]
Supra note 27.
[60]
Supra note 39.
[61]
Supra note 28.
[62]
TSN, February 9, 2007, p. 4.
[63]
Exhibit B, folder of exhibits, p. 7.
[64]
People v. Cacao, G.R. No. 180870, January 22, 2010, 610 SCRA 636, 651.
[65]
G.R. No. 171019, February 23, 2007, 516 SCRA 621, 631-632.
[66]
People v. Del Monte, G.R. No. 179940, April 23, 2008, 552 SCRA 627, 637.
[67]
People v. Obmiranis, G.R. No. 181492, December 16, 2008, 574 SCRA 140, 156-157.
[68]
People v. Peralta, G.R. No. 173477, February 26, 2010.
[69]
People v. Cervantes, G.R. No. 181494, March 17, 2009, 581 SCRA 762, 784-785, citing People v. Garcia, G.R.
No. 173480, February 25, 2009, 580 SCRA 259, 277-278.
[70]
Id. at 785.
[71]
Section 11. Possession of Dangerous Drugs. - The penalty of life imprisonment to death and a fine ranging from
Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any
person, who, unless authorized by law, shall possess any dangerous drug in the following quantities, regardless of
the degree of purity thereof:
(1) 10 grams or more of opium;
(2) 10 grams or more of morphine;
(3) 10 grams or more of heroin;
(4) 10 grams or more of cocaine or cocaine hydrochloride;
(5) 50 grams or more of methamphetamine hydrochloride or "shabu";
(6) 10 grams or more of marijuana resin or marijuana resin oil;
(7) 500 grams or more of marijuana; and
(8) 10 grams or more of other dangerous drugs such as, but not limited to,
methylenedioxymethamphetamine (MDA) or "ecstasy", paramethoxyamphetamine (PMA),
trimethoxyamphetamine (TMA), lysergic acid diethylamine (LSD), gamma hydroxyamphetamine (GHB),
and those similarly designed or newly introduced drugs and their derivatives, without having any
therapeutic value or if the quantity possessed is far beyond therapeutic requirements, as determined and
promulgated by the Board in accordance to Section 93, Article XI of this Act.
Otherwise, if the quantity involved is less than the foregoing quantities, the penalties shall be graduated as follows:
(1) Life imprisonment and a fine ranging from Four hundred thousand pesos (P400,000.00) to Five hundred
thousand pesos (P500,000.00), if the quantity of methamphetamine hydrochloride or "shabu" is ten (10)
grams or more but less than fifty (50) grams;
(2) Imprisonment of twenty (20) years and one (1) day to life imprisonment and a fine ranging from Four
hundred thousand pesos (P400,000.00) to Five hundred thousand pesos (P500,000.00), if the quantities of
dangerous drugs are five (5) grams or more but less than ten (10) grams of opium, morphine, heroin,
cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil, methamphetamine hydrochloride
or "shabu", or other dangerous drugs such as, but not limited to, MDMA or "ecstasy", PMA, TMA, LSD,
GHB, and those similarly designed or newly introduced drugs and their derivatives, without having any
therapeutic value or if the quantity possessed is far beyond therapeutic requirements; or three hundred (300)
grams or more but less than five hundred (500) grams of marijuana; and
(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 opium, morphine, heroin, cocaine or cocaine hydrochloride,
marijuana resin or marijuana resin oil, methamphetamine hydrochloride or "shabu", or other dangerous
drugs such as, but not limited to, MDMA or "ecstasy", PMA, TMA, LSD, GHB, and those similarly
designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the
quantity possessed is far beyond therapeutic requirements; or less than three hundred (300) grams of
marijuana.
[72]
Section 15. Use of Dangerous Drugs. A person apprehended or arrested, who is found to be positive for use of
any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six (6) months
rehabilitation in a government center for the first offense, subject to the provisions of Article VIII of this Act. If
apprehended using any dangerous drug for the second time, he/she shall suffer the penalty of imprisonment ranging
from six (6) years and one (1) day to twelve (12) years and a fine ranging from Fifty thousand pesos (P50,000.00) to
Two hundred thousand pesos (P200,000.00): Provided, That this Section shall not be applicable where the person
tested is also found to have in his/her possession such quantity of any dangerous drug provided for under Section 11
of this Act, in which case the provisions stated therein shall apply.
[73]
Section 14. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs
During Parties, Social Gatherings or Meetings. - The maximum penalty provided for in Section 12 of this Act shall
be imposed upon any person, who shall possess or have under his/her control any equipment, instrument, apparatus
and other paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting, or introducing
any dangerous drug into the body, during parties, social gatherings or meetings, or in the proximate company of at
least two (2) persons.
[74]
Section 12. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs. -
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 other
paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting, or introducing any
dangerous drug into the body: Provided, That in the case of medical practitioners and various professionals who are
required to carry such equipment, instrument, apparatus and other paraphernalia in the practice of their profession,
the Board shall prescribe the necessary implementing guidelines thereof.
The possession of such equipment, instrument, apparatus and other paraphernalia fit or intended for any of the
purposes enumerated in the preceding paragraph shall be prima facie evidence that the possessor has smoked,
consumed, administered to himself/herself, injected, ingested or used a dangerous drug and shall be presumed to
have violated Section 15 of this Act.

SECOND DIVISION

PEOPLE OF THE PHILIPPINES, G.R. No. 188611

Appellee,
Present:

CARPIO, J.,
 Chairperson,

- versus - NACHURA,

PERALTA,

ABAD, and

PEREZ,* JJ.

BELEN MARIACOS, Promulgated:

Appellant.

June 16, 2010

x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

Before this Court is an appeal from the Decision[1] of the Court of Appeals (CA) in
CA-G.R. CR-HC No. 02718, which affirmed the decision[2] of the Regional Trial
Court (RTC), Branch 29, San Fernando City, La Union, in Criminal Case No. 7144,
finding appellant Belen Mariacos guilty of violating Article II, Section 5 of Republic
Act (R.A.) No. 9165, or the Comprehensive Dangerous Drugs Act of 2002.
The facts of the case, as summarized by the CA, are as follows:

Accused-appellant Belen Mariacos was charged in an Information, dated November 7,

2005 of violating Section 5, Article II of Republic Act [No.] 9165, allegedly committed as
follows:

That on or about the 27th day of October, 2005, in the Municipality of

San Gabriel, Province of La Union, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, did then
and there willfully, unlawfully and feloniously transport, deliver 7,030.3,
(sic) grams of dried marijuana fruiting tops without the necessary
permit or authority from the proper government agency or office.

CONTRARY TO LAW.

When arraigned on December 13, 2005, accused-appellant pleaded not guilty. During the
pre-trial, the following were stipulated upon:

1. Accused admits that she is the same person identified in the

information as Belen Mariacos;

2. That accused is a resident of Brgy. Lunoy, San Gabriel, La Union;

3. That at the time of the arrest of the accused, accused had just
alighted from a passenger jeepney;

4. That the marijuana allegedly taken from the possession of the

accused contained in two (2) bags were submitted for examination
to the Crime Lab;
 5. That per Chemistry Report No. D-109-2005, the alleged drug
submitted for examination gave positive result for the presence of
marijuana;

6. That the drugs allegedly obtained from the accused contained (sic)
and submitted for examination weighed 7,030.3 grams;

7. The Prosecutor admits the existence of a counter-affidavit executed

by the accused; and

8. The existence of the affidavits executed by the witnesses of the

accused family (sic): Lyn Punasen, Mercedes Tila and Magdalena
Carino.

During the trial, the prosecution established the following evidence:

On October 26, 2005, in the evening, the San Gabriel Police Station of San Gabriel, La
Union, conducted a checkpoint near the police station at the poblacion to intercept a
suspected transportation of marijuana from Barangay Balbalayang, San Gabriel, La
Union. The group at the checkpoint was composed of PO2 Lunes B. Pallayoc (PO2
Pallayoc), the Chief of Police, and other policemen. When the checkpoint did not yield
any suspect or marijuana, the Chief of Police instructed PO2 Pallayoc to proceed to
Barangay Balbalayang to conduct surveillance operation (sic).

At dawn on October 27, 2005, in Barangay Balbalayang, PO2 Pallayoc met with a secret
agent of the Barangay Intelligence Network who informed him that a baggage of
marijuana had been loaded on a passenger jeepney that was about to leave for
the poblacion. The agent mentioned three (3) bags and one (1) blue plastic bag. Further,
the agent described a backpack bag with an O.K. marking. PO2 Pallayoc then boarded
the said jeepney and positioned himself on top thereof. While the vehicle was in
motion, he found the black backpack with an O.K. marking and peeked inside its
contents. PO2 Pallayoc found bricks of marijuana wrapped in newspapers. He then
asked the other passengers on top of the jeepney about the owner of the bag, but no
one knew.
When the jeepney reached the poblacion, PO2 Pallayoc alighted together with the other
passengers. Unfortunately, he did not notice who took the black backpack from atop the
jeepney. He only realized a few moments later that the said bag and three (3) other
bags, including a blue plastic bag, were already being carried away by two (2) women.
He caught up with the women and introduced himself as a policeman. He told them that
they were under arrest, but one of the women got away.

PO2 Pallayoc brought the woman, who was later identified as herein accused-appellant
Belen Mariacos, and the bags to the police station. At the police station, the
investigators contacted the Mayor of San Gabriel to witness the opening of the bags.
When the Mayor arrived about fifteen (15) minutes later, the bags were opened and
three (3) bricks of marijuana wrapped in newspaper, two (2) round bundles of
marijuana, and two (2) bricks of marijuana fruiting tops, all wrapped in a newspaper,
were recovered.

Thereafter, the investigators marked, inventoried and forwarded the confiscated

marijuana to the crime laboratory for examination. The laboratory examination showed
that the stuff found in the bags all tested positive for marijuana, a dangerous drug.

When it was accused-appellants turn to present evidence, she testified that:

On October 27, 2005, at around 7:00 in the morning, accused-appellant, together with
Lani Herbacio, was inside a passenger jeepney bound for the poblacion. While the
jeepney was still at the terminal waiting for passengers, one Bennie Lao-ang (Lao-ang),
her neighbor, requested her to carry a few bags which had been loaded on top of the
jeepney. At first, accused-appellant refused, but she was persuaded later when she was
told that she would only be carrying the bags. When they reached the poblacion, Lao-
ang handed accused-appellant and her companion, Lani Herbacio, the bags, and then
Lao-ang suddenly ran away. A few moments later, PO2 Pallayoc was upon them,
arresting them. Without explanation, they were brought to the police station. When
they were at the police station, Lani Herbacio disappeared. It was also at the police
station that accused-appellant discovered the true contents of the bags which she was
asked to carry. She maintained that she was not the owner of the bags and that she did
not know what were contained in the bags. At the police station (sic) she executed a
Counter-Affidavit.[3]
On January 31, 2007, the RTC promulgated a decision, the dispositive portion of
which states:

WHEREFORE, the Court finds the accused Belen Mariacos GUILTY as charged and
sentences here (sic) to suffer the penalty of life imprisonment and to pay a fine
of P500,000.00.

The 7,030.3 grams of marijuana are ordered confiscated and turned over to the
Philippine Drug Enforcement Agency for destruction in the presence of the Court
personnel and media.

SO ORDERED.[4]

Appellant appealed her conviction to the CA. She argued that the trial court erred
in considering the evidence of the prosecution despite its inadmissibility.[5] She
claimed that her right against an unreasonable search was flagrantly violated by
Police Officer (PO)2 Pallayoc when the latter searched the bag, assuming it was
hers, without a search warrant and with no permission from her. She averred that
PO2 Pallayocs purpose for apprehending her was to verify if the bag she was
carrying was the same one he had illegally searched earlier. Moreover, appellant
contended that there was no probable cause for her arrest.[6]

Further, appellant claimed that the prosecution failed to prove the corpus
delicti of the crime.[7] She alleged that the apprehending police officers violated
Dangerous Drugs Board Regulation No. 3, Series of 1979, as amended by Board
Regulation No. 2, Series of 1990, which prescribes the procedure in the custody of
seized prohibited and regulated drugs, instruments, apparatuses, and articles. The
said regulation directs the apprehending team having initial custody and control
of the drugs and/or paraphernalia, immediately after seizure or confiscation, to
have the same physically inventoried and photographed in the presence of
appellant or her representative, who shall be required to sign copies of the
inventory. The failure to comply with this directive, appellant claimed, casts a
serious doubt on the identity of the items allegedly confiscated from her. She,
likewise, averred that the prosecution failed to prove that the items allegedly
confiscated were indeed prohibited drugs, and to establish the chain of custody
over the same.

On the other hand, the People, through the Office of the Solicitor General (OSG),
argued that the warrantless arrest of appellant and the warrantless seizure of
marijuana were valid and legal,[8] justified as a search of a moving vehicle. It
averred that PO2 Pallayoc had reasonable ground to believe that appellant had
committed the crime of delivering dangerous drugs based on reliable information
from their agent, which was confirmed when he peeked into the bags and smelled
the distinctive odor of marijuana.[9] The OSG also argued that appellant was now
estopped from questioning the illegality of her arrest since she voluntarily
entered a plea of not guilty upon arraignment and participated in the trial and
presented her evidence.[10] The OSG brushed aside appellants argument that the
bricks of marijuana were not photographed and inventoried in her presence or
that of her counsel immediately after confiscation, positing that physical
inventory may be done at the nearest police station or at the nearest office of the
apprehending team, whichever was practicable.[11]

In a Decision dated January 19, 2009, the CA dismissed appellants appeal and
affirmed the RTC decision in toto.[12] It held that the prosecution had successfully
proven that appellant carried away from the jeepney a number of bags which,
when inspected by the police, contained dangerous drugs. The CA ruled that
appellant was caught in flagrante delicto of carrying and conveying the bag that
contained the illegal drugs, and thus held that appellants warrantless arrest was
valid. The appellate court ratiocinated:
 It must be stressed that PO2 Pallayoc had earlier ascertained the contents of the bags
when he was aboard the jeep. He saw the bricks of marijuana wrapped in newspaper.
That said marijuana was on board the jeepney to be delivered to a specified destination
was already unlawful. PO2 Pallayoc needed only to see for himself to whom those bags
belonged. So, when he saw accused-appellant carrying the bags, PO2 Pallayoc was
within his lawful duty to make a warrantless arrest of accused-appellant.

xxxx

Firstly, this Court opines that the invocation of Section 2, Article III of the
Constitution is misplaced. At the time, when PO2 Pallayoc looked into the contents of
the suspicious bags, there was no identified owner. He asked the other passengers atop
the jeepney but no one knew who owned the bags. Thus, there could be no violation of
the right when no one was entitled thereto at that time.

Secondly, the facts of the case show the urgency of the situation. The local police has
been trying to intercept the transport of the illegal drugs for more than a day, to no
avail. Thus, when PO2 Pallayoc was tipped by the secret agent of the Barangay
Intelligence Network, PO2 Pallayoc had no other recourse than to verify as promptly as
possible the tip and check the contents of the bags.

Thirdly, x x x the search was conducted in a moving vehicle. Time and again, a search of
a moving vehicle has been justified on the ground that the mobility of motor vehicles
makes it possible for the vehicle to move out of the locality or jurisdiction in which the
warrant must be sought. Thus, under the facts, PO2 Pallayoc could not be expected to
secure a search warrant in order to check the contents of the bags which were loaded
on top of the moving jeepney. Otherwise, a search warrant would have been of no use
because the motor vehicle had already left the locality.[13]

Appellant is now before this Court, appealing her conviction.

Once again, we are asked to determine the limits of the powers of the States
agents to conduct searches and seizures. Over the years, this Court had laid down
the rules on searches and seizures, providing, more or less, clear parameters in
determining which are proper and which are not.

Appellants main argument before the CA centered on the inadmissibility of

the evidence used against her. She claims that her constitutional right against
unreasonable searches was flagrantly violated by the apprehending officer.

Thus, we must determine if the search was lawful. If it was, then there
would have been probable cause for the warrantless arrest of appellant.

Article III, Section 2 of the Philippine 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.

Law and jurisprudence have laid down the instances when a warrantless
search is valid. These are:

1. Warrantless search incidental to a lawful arrest recognized under Section 12

[now Section 13], Rule 126 of the Rules of Court and by prevailing jurisprudence;

2. Seizure of evidence in plain view, the elements of which are:

(a) a prior valid intrusion based on the valid warrantless arrest in

which the police are legally present in the pursuit of their official
duties;
 (b) the evidence was inadvertently discovered by the police who
had the right to be where they are;

(c) the evidence must be immediately apparent[;] and;

(d) plain view justified mere seizure of evidence without further

search.

3. Search of a moving vehicle. Highly regulated by the government, the vehicle's

inherent mobility reduces expectation of privacy especially when its transit in
public thoroughfares furnishes a highly reasonable suspicion amounting to
probable cause that the occupant committed a criminal activity;

4. Consented warrantless search;

5. Customs search;

6. Stop and Frisk; and

7. Exigent and Emergency Circumstances.[14]

Both the trial court and the CA anchored their respective decisions on the fact that
the search was conducted on a moving vehicle to justify the validity of the search.

Indeed, the search of a moving vehicle is one of the doctrinally accepted

exceptions to the Constitutional mandate that no search or seizure shall be made
except by virtue of a warrant issued by a judge after personally determining the
existence of probable cause.[15]

In People v. Bagista,[16] the Court said:

The constitutional proscription against warrantless searches and seizures admits

of certain exceptions. Aside from a search incident to a lawful arrest, a warrantless
search had been upheld in cases of a moving vehicle, and the seizure of evidence in
plain view.
 With regard to the search of moving vehicles, this had been justified on the
ground that the mobility of motor vehicles makes it possible for the vehicle to be
searched to move out of the locality or jurisdiction in which the warrant must be sought.

This in no way, however, gives the police officers unlimited discretion to

conduct warrantless searches of automobiles in the absence of probable cause. When a
vehicle is stopped and subjected to an extensive search, such a warrantless search has
been held to be valid only as long as the officers conducting the search have reasonable
or probable cause to believe before the search that they will find the instrumentality or
evidence pertaining to a crime, in the vehicle to be searched.

It is well to remember that in the instances we have recognized as

exceptions to the requirement of a judicial warrant, it is necessary that the officer
effecting the arrest or seizure must have been impelled to do so because of
probable cause. The essential requisite of probable cause must be satisfied before
a warrantless search and seizure can be lawfully conducted.[17] Without probable
cause, the articles seized cannot be admitted in evidence against the person
arrested.[18]

Probable cause is defined as a reasonable ground of suspicion supported by

circumstances sufficiently strong in themselves to induce a cautious man to
believe that the person accused is guilty of the offense charged. It refers to the
existence of such facts and circumstances that can lead a reasonably discreet and
prudent man to believe that an offense has been committed, and that the items,
articles or objects sought in connection with said offense or subject to seizure and
destruction by law are in the place to be searched.[19]

The grounds of suspicion are reasonable when, in the absence of actual

belief of the arresting officers, the suspicion that the person to be arrested is
probably guilty of committing the offense is based on actual facts, i.e., supported
by circumstances sufficiently strong in themselves to create the probable cause of
guilt of the person to be arrested. A reasonable suspicion therefore must be
founded on probable cause, coupled with good faith on the part of the peace
officers making the arrest.[20]

Over the years, the rules governing search and seizure have been steadily
liberalized whenever a moving vehicle is the object of the search on the basis of
practicality. This is so considering that before a warrant could be obtained, the
place, things and persons to be searched must be described to the satisfaction of the
issuing judge a requirement which borders on the impossible in instances where
moving vehicle is used to transport contraband from one place to another with
impunity.[21]

This exception is easy to understand. A search warrant may readily be

obtained when the search is made in a store, dwelling house or other immobile
structure. But it is impracticable to obtain a warrant when the search is conducted
on a mobile ship, on an aircraft, or in other motor vehicles since they can quickly
be moved out of the locality or jurisdiction where the warrant must be sought.[22]

Given the discussion above, it is readily apparent that the search in this
case is valid. The vehicle that carried the contraband or prohibited drugs was
about to leave. PO2 Pallayoc had to make a quick decision and act fast. It would
be unreasonable to require him to procure a warrant before conducting the
search under the circumstances. Time was of the essence in this case. The
searching officer had no time to obtain a warrant. Indeed, he only had enough
time to board the vehicle before the same left for its destination.

It is well to remember that on October 26, 2005, the night before

appellants arrest, the police received information that marijuana was to be
transported from Barangay Balbalayang, and had set up a checkpoint around the
area to intercept the suspects. At dawn of October 27, 2005, PO2 Pallayoc met
the secret agent from the Barangay Intelligence Network, who informed him that
a baggage of marijuana was loaded on a passenger jeepney about to leave for
the poblacion. Thus, PO2 Pallayoc had probable cause to search the packages
allegedly containing illegal drugs.

This Court has also, time and again, upheld as valid a warrantless search
incident to a lawful arrest. Thus, Section 13, Rule 126 of the Rules of Court
provides:

SEC. 13. Search incident to lawful arrest.A person lawfully arrested may be searched for
dangerous weapons or anything which may have been used or constitute proof in the
commission of an offense without a search warrant.[23]

For this rule to apply, it is imperative that there be a prior valid

arrest. Although, generally, a warrant is necessary for a valid arrest, the Rules of
Court provides the exceptions therefor, to wit:

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

(a) When, in his presence, the person to be arrested has

committed, is actually committing, or is attempting to commit an
offense;

(b) When an offense has just been committed and he has

probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has

escaped from a penal establishment or place where he is serving
final judgment or is temporarily confined while his case is
pending, or has escaped while being transferred from one
confinement to another.
 In cases falling under paragraphs (a) and (b) above, the person arrested without
a warrant shall be forthwith delivered to the nearest police station or jail and shall be
proceeded against in accordance with section 7 of Rule 112.[24]

Be that as it may, we have held that a search substantially

contemporaneous with an arrest can precede the arrest if the police has probable
cause to make the arrest at the outset of the search.[25]

Given that the search was valid, appellants arrest based on that search is
also valid.

Article II, Section 5 of the Comprehensive Dangerous Drugs Act of 2002

states:

SEC. 5 Sale, Trading, Administration, Dispensation, Delivery, Distribution and

Transportation of Dangerous Drugs and/or Controlled Precursors and Essential
Chemicals. The penalty of life imprisonment to death and a fine ranging from Five
hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be
imposed upon any person, who, unless authorized by law, shall sell, trade, administer,
dispense, deliver, give away to another, distribute, dispatch in transit or transport any
dangerous drug, including any and all species of opium poppy regardless of the quantity
and purity involved, or shall act as a broker in any of such transactions.

The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty
(20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five
hundred thousand pesos (P500,000.00) shall be imposed upon any person who, unless
authorized by law, shall sell, trade, administer, dispense, deliver, give away to another,
distribute, dispatch in transit or transport any controlled precursor and essential
chemical, or shall act as a broker in such transactions.
In her defense, appellant averred that the packages she was carrying did not
belong to her but to a neighbor who had asked her to carry the same for him. This
contention, however, is of no consequence.

When an accused is charged with illegal possession or transportation of

prohibited drugs, the ownership thereof is immaterial. Consequently, proof of
ownership of the confiscated marijuana is not necessary.[26]

Appellants alleged lack of knowledge does not constitute a valid defense.

Lack of criminal intent and good faith are not exempting circumstances where the
crime charged is malum prohibitum, as in this case.[27] Mere possession and/or
delivery of a prohibited drug, without legal authority, is punishable under the
Dangerous Drugs Act.[28]

Anti-narcotics laws, like anti-gambling laws, are regulatory statutes. They

are rules of convenience designed to secure a more orderly regulation of the
affairs of society, and their violation gives rise to crimes mala prohibita. Laws
defining crimes mala prohibita condemn behavior directed not against particular
individuals, but against public order.[29]

Jurisprudence defines transport as to carry or convey from one place to

another.[30] There is no definitive moment when an accused transports a
prohibited drug. When the circumstances establish the purpose of an accused to
transport and the fact of transportation itself, there should be no question as to
the perpetration of the criminal act.[31] The fact that there is actual conveyance
suffices to support a finding that the act of transporting was committed and it is
immaterial whether or not the place of destination is reached.[32]

Moreover, appellants possession of the packages containing illegal drugs

gave rise to the disputable presumption[33] that she is the owner of the packages
and their contents.[34] Appellant failed to rebut this presumption. Her
uncorroborated claim of lack of knowledge that she had prohibited drug in her
possession is insufficient.

Appellants narration of facts deserves little credence. If it is true that Bennie Lao-
ang merely asked her and her companion to carry some baggages, it is but logical
to first ask what the packages contained and where these would be taken.
Likewise, if, as appellant said, Lao-ang ran away after they disembarked from
the jeepney, appellant and her companion should have ran after him to give him
the bags he had left with them, and not to continue on their journey without
knowing where they were taking the bags.

Next, appellant argues that the prosecution failed to prove the corpus delicti of
the crime. In particular, she alleged that the apprehending police officers failed to
follow the procedure in the custody of seized prohibited and regulated drugs,
instruments, apparatuses, and articles.

In all prosecutions for violation of the Dangerous Drugs Act, the existence
of all dangerous drugs is a sine qua non for conviction. The dangerous drug is the
very corpus delicti of that crime.[35]
Thus, Section 21 of R.A. No. 9165 prescribes the procedure for custody and
disposition of seized dangerous drugs, to wit:

Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered

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

The Implementing Rules and Regulations (IRR) of R.A. No. 9165 further provides:
SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered
Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and
Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. The
PDEA shall take charge and have custody of all dangerous drugs, plant sources of
dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or
surrendered, for proper disposition in the following manner:

(a) The apprehending officer/team having initial custody and

control of the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, a representative
from the media and the Department of Justice (DOJ), and any elected
public official who shall be required to sign the copies of the inventory
and be given a copy thereof: Provided, that the physical inventory and
photograph shall be conducted at the place where the search warrant is
served; or at the nearest police station or at the nearest office of the
apprehending officer/team, whichever is practicable, in case of
warrantless seizures; Provided, further, that non-compliance with these
requirements under justifiable grounds, as long as the integrity and the
evidentiary value of the seized items are properly preserved by the
apprehending officer/team, shall not render void and invalid such
seizures of and custody over said items.
PO2 Pallayoc testified that after apprehending appellant, he immediately brought
her to the police station. At the station, the police requested the Mayor to
witness the opening of the bags seized from appellant. When the Mayor arrived,
he opened the bag in front of appellant and the other police officers. The black
bag yielded three bricks of marijuana wrapped in newspaper, while the plastic bag
yielded two bundles of marijuana and two bricks of marijuana fruiting
tops.[36] PO2 Pallayoc identified the bricks. He and PO3 Stanley Campit then
marked the same. Then the seized items were brought to the PNP Crime
Laboratory for examination.

It is admitted that there were no photographs taken of the drugs seized, that
appellant was not accompanied by counsel, and that no representative from the
media and the DOJ were present. However, this Court has already previously held
that non-compliance with Section 21 is not fatal and will not render an accuseds
arrest illegal, or make the items seized inadmissible. What is of utmost
importance is the preservation of the integrity and evidentiary value of the seized
items.[37]

Based on the testimony of PO2 Pallayoc, after appellants arrest, she was
immediately brought to the police station where she stayed while waiting for the
Mayor. It was the Mayor who opened the packages, revealing the illegal drugs,
which were thereafter marked and sent to the police crime laboratory the
following day. Contrary to appellants claim, the
prosecutions evidence establishes the chain of custody from the time of

appellants arrest until the prohibited drugs were tested at the police crime
laboratory.
 While it is true that the arresting officer failed to state explicitly the
justifiable ground for non-compliance with Section 21, this does not necessarily
mean that appellants arrest was illegal or that the items seized are inadmissible.
The justifiable ground will remain unknown because appellant did not question
the custody and disposition of the items taken from her during the trial.[38] Even
assuming that the police officers failed to abide by Section 21, appellant should
have raised this issue before the trial court. She could have moved for the quashal
of the information at the first instance. But she did not. Hence, she is deemed to
have waived any objection on the matter.

Further, the actions of the police officers, in relation to the procedural rules
on the chain of custody, enjoyed the presumption of regularity in the
performance of official functions. Courts accord credence and full faith to the
testimonies of police authorities, as they are presumed to be performing their
duties regularly, absent any convincing proof to the contrary.[39]

In sum, the prosecution successfully established appellants guilt. Thus, her

conviction must be affirmed.

WHEREFORE, the foregoing premises considered, the appeal is DISMISSED. The

Decision of the Court of Appeals in CA-G.R. CR-HC No. 02718 is AFFIRMED.

SO ORDERED.
 ANTONIO EDUARDO B. NACHURA
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

DIOSDADO M. PERALTA ROBERTO A. ABAD

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ

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.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairperson's Attestation, I certify 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.

RENATO C. CORONA
Chief Justice

SECOND DIVISION

SONY COMPUTER G.R. No. 169156

ENTERTAINMENT, INC.,
Petitioner, Present:

QUISUMBING, J., Chairperson,

CARPIO,
- versus - CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.
Promulgated:
BRIGHT FUTURE February 15, 2007
TECHNOLOGIES, INC.,
Respondent.

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CARPIO MORALES, J.:

On application of Inspector Rommel G. Macatlang of the Philippine
National Police, after a complaint was received from petitioner, Sony Computer
Entertainment, Inc. (SCEI), eight search warrants[1] for copyright and trademark
infringement, of which Search Warrant Nos. 05-6336 and 05-6337 are relevant to
the present case, were issued by the Manila Regional Trial Court (RTC) Executive
Judge Antonio M. Eugenio, Jr. following which a raid was conducted on the
premises of respondent, Bright Future Technologies, Inc. (BFTI), on April 1,
2005. Seized during the raid were the following items:

eight replicating machines

five bonding machines
four printing machines
seven polycarbonate dryers
one table for silk screen
ten moulds
two shredder machines
one color blue centroller
one dryer machine
92 boxes of assorted colors of paint
600 pieces of counterfeit Sony Playstation DVDs
285 boxes of blank CDs
eight boxes of white blank CDs
nine boxes of AL targets
two boxes of sputtering targets
18 gallons of UV bonding adhesive
four gallons of DVD bondage
21 gallons of phothum chemicals
four gallons of CPS mesh prep, and
nine gallons of CD lacquer.[2]

BFTI subsequently filed on April 5, 2005 before Branch 24 of the RTC

Manila presided by Judge Eugenio an Urgent Motion to Quash and/or to Exclude
or Suppress Evidence and Return Seized Articles,[3] alleging as
follows, quoted verbatim:

1. The searching team entered the premises and conducted the search
without any witness in violation of the Rules of Court;

2. The raiding team planted evidence of 600 compact discs at the scene
while no witnesses were present;

3. Certification against forum shopping prescribed by law was not

executed;
 4. For search warrant to be valid, the master tapes must be presented;

5. The statement made by the affiants in their joint-affidavit in support of

the application for the search warrant were false and perjurious;
6. No probable cause exists for the issuance of the warrant;

7. The search conducted was illegal;

8. The place to be searched was not described with particularity;

9. No bond was posted by the applicant.[4]

SCEI filed an Opposition[5] to the motion, to which BFTI filed a Reply,[6] the
latter arguing that SCEI had no personality to represent the People of
the Philippines in the case and to file the opposition to the motion because SCEIs
agents were mere witnesses of the applicant for the issuance of the search
warrants.[7]

On April 11, 2005, acting on a Very Urgent Motion to Inhibit [8] filed by
SCEI to which BFTI interposed its objection, Judge Eugenio voluntarily inhibited
himself from the case.[9] The case was thereafter raffled to Branch 21 of the Manila
RTC, presided by Judge Amor A. Reyes.[10]

In the meantime or on April 14, 2005, SCEI, through counsel, filed with the
Department of Justice Task Force on Anti-Intellectual Property Piracy a complaint-
affidavit against the directors and officers of BFTI.[11]

By Order[12] dated April 18, 2005, the RTC denied BFTIs motion to quash
the warrants, it finding that they were regularly issued and implemented, and that a
bond is not required in the application for their issuance.

BFTI filed a Motion for Reconsideration[13] of the denial of its motion to

quash. It also filed joint motions for the inhibition of the Honorable Judge Amor
Reyes, for reconsideration of the order of voluntary inhibition dated April 11,
2005, and for the return of the case to the executive judge.[14]
 In an Order dated May 20, 2005, Judge Reyes transmitted the records of the
case to the Executive Judge pursuant to A.M. No. 03-8-02.[15] The case was then
re-raffled to Branch 8 of the Manila RTC, presided by Judge Felixberto T. Olalia,
Jr.[16]

In addressing the issue of SCEIs personality to appear in the proceedings,

the RTC held that it would treat SCEIs counsel as an officer of [the] Court to argue
the other side, so to speak, for the clarification of issues related to search and
seizure cases and to arrive at a better conclusion and resolution of issues in this
case.[17]

The RTC, however, found that the two-witness rule under Section 8 of Rule
126 which provides:

SEC. 8. Search of house, room, or premises to be made in presence of two witnesses.

No search of a house, room or any other premise shall be made except in the
presence of the lawful occupant thereof or any member of his family or in the
absence of the latter, two witnesses of sufficient age and discretion residing in
the same locality. (Underscoring supplied),

was violated and that the searching teams use of a bolt cutter to open the searched
premises was unnecessary, hence, it granted BFTIs Motion for Reconsideration of
its April 18, 2005 Order by Order of August 8, 2005.[18]

BFTI subsequently filed on August 9, 2005 an Ex Parte Motion to Return

Seized Articles[19] which the RTC granted, by Order of August 10, 2005, subject to
the filing of a bond.[20] BFTI filed the required bond alright,[21] and the seized items
were turned over to its custody.[22]

Hence, arose SCEIs present Petition for Review on Certiorari under Rule
[23]
45 which assails the August 8 and August 10, 2005 Orders of the court a
quo, contending that the RTC erred

(1) . . . when it disregarded [its] clear right . . . to appear and participate as a

private complainant in the search warrant proceedings;
 (2) . . . when it granted respondents Motion to Quash based on questions of
alleged irregularities by the peace officers in enforcing the search
warrants.

(a) . . . when it ruled that the use of the bolt cutter violated
Section 7 of Rule 126.

(b) . . . when it ruled that the enforcement of the search warrant

violated the two-witness rule provided in Section 8 of Rule
126;

[3] . . . when it ordered the immediate release of the seized property prior to the
finality of the order quashing the search warrants.

(a) . . . when it released the seized properties by virtue of the filing

of a bond by the respondent.[24]

The issue of whether a private complainant, like SCEI, has the right to
participate in search warrant proceedings was addressed in the affirmative
in United Laboratories, Inc. v. Isip:[25]

. . . [A] private individual or a private corporation complaining to the

NBI or to a government agency charged with the enforcement of special penal
laws, such as the BFAD, may appear, participate and file pleadings in the
search warrant proceedings to maintain, inter alia, the validity of the search
warrant issued by the court and the admissibility of the properties seized in
anticipation of a criminal case to be filed; such private party may do so in
collaboration with the NBI or such government agency. The party may file an
opposition to a motion to quash the search warrant issued by the court, or a
motion for the reconsideration of the court order granting such motion to
quash.[26] (Emphasis and underscoring supplied)

When SCEI then opposed BFTIs Urgent Motion to Quash and/or to

Suppress or Exclude Evidence and Return Seized Articles (emphasis supplied),
the RTC correctly recognized the participation of SCEI in the proceedings.

As for the use of a bolt cutter to gain access to the premises of BFTI, it was,
under the circumstances, reasonable, contrary to the RTCs finding that it was
unnecessary. For, as the RTC itself found, after the members of the searching team
introduced themselves to the security guards of BFTI and showed them the search
warrants, the guards refused to receive the warrants and to open the premises, they
claiming that they are not in control of the case.[27] The conditions required under
Section 7 of Rule 126 were thus complied with:

The officer, if refused admittance to the place of directed search after

giving notice of his purpose and authority, may break open any outer or inner
door or window of a house or any part of a house or anything therein to
execute the warrant or liberate himself or any person lawfully aiding him when
unlawfully detained therein. (Underscoring supplied)

The RTCs finding that the two-witness rule governing the execution of
search warrant was not complied with, which rule is mandatory to ensure regularity
in the execution of the search warrant,[28] is in order, however.

Observed the RTC:

At this point, it is worthy of note [sic] the two statements issued by
Barangay Police Subrino P. de Castro and Gaudencio A. Masambique who
affirmed in their testimonies in Court that, to wit:

xxxx

3. Noong ako ay makarating sa nasabing lugar nadatnan

ko ang mga pulis at mga miyembro ng Raiding Team na nasa
loob na ng gusali ng Bright Future at nagsisiyasat sa mga gamit
at makinaryang naroroon. Pagkatapos ay nilapitan ako ng isang
pulis at ipinatanggap sa akin ang nasabing search warrant.

The police were already searching (nagsisiyasat) the area of respondent

BFTI in clear violation of the two-witness rule provided for by Section 8 of
Rule 126. These statements of the two Barangay Police ostensibly arriving late
while a search was going on was corroborated by Insp. Macatlangs testimony
that the Barangay officials arrived at about 11:30 PM to 12
AM.[29] (Underscoring supplied)

The RTC did not thus err in ordering the quashal of the search warrants.

SCEI insists, however, that the searching team waited for the arrival of the
barangay officials who were summoned to witness the search,[30] and that [e]ven
when the enforcing officers were moving towards the actual BFTI premises . . .
they were accompanied at all times by one of the security guards on duty until
the barangay officials arrived.[31] SCEIs position raises an issue of fact which is not
proper for consideration in a petition for review on certiorari before this Court
under Rule 45, which is supposed to cover only issues of law. [32] In any event, a
security guard may not be considered a lawful occupant or a member of [the lawful
occupants] family under the earlier quoted Section 8 of Rule 126.

As the two-witness rule was not complied with, the objects seized during
the April 1, 2005 search are inadmissible in evidence. Their return, on motion of
BFTI, was thus in order.[33]

A final word. The RTC order requiring BFTI to file a bond to ensure the
return of the seized items should the Department of Justice find probable cause
against it in I.S. No. 2005-315, SCEI v. Anthony Bryan B. Sy, et al., has no basis in
law. Besides, the seized items being inadmissible in evidence, it would serve no
purpose to ensure their return.

WHEREFORE, the petition is DENIED.

The August 8, 2005 Order of the Regional Trial Court of Manila, Branch 8
granting the Urgent Motion to Quash filed by respondent, Bright Future
Technologies, Inc., is AFFIRMED.

The August 10, 2005 Order granting the Ex Parte Motion to Return Seized
Articles filed by respondent is AFFIRMED, with the MODIFICATION that the
portion requiring respondent to file a bond is SET ASIDE. Let the bond then filed
by respondent be CANCELLED.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice
WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

ANTONIO T. CARPIO DANTE O. TINGA

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ATTESTATION

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.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson
 CERTIFICATION

Pursuant to Article VIII, Section 13 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 Court.