cases for exigent circumstance

7/29/2019 Cases for Exigent Circumstance

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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-45950 June 20, 1938

LEONA PASION VIUDA DE GARCIA, petitioner,vs.DIEGO LOCSIN, Judge of First Instance of Tarlac,FELIX IMPERIAL, Provincial Fiscal of Tarlac, and the ANTI-USURYBOARD, respondents.

Benigo S. Aquino and Marcial P. Lichauco for petitionerAdolfo N. Feliciano for the respondent Anti-Usury Board.

Office of the Solicitor-General Tuason for other respondents.

LAUREL, J.:

This is a petition formandamuspresented to secure the annulment of a search warrantand two orders of the respondent judge, and the restoration of certain documentsalleged to have been illegally seized by an agent of the Anti-Usuary Board.

It appears that on November 10, 1934, Mariano G. Almeda, an agent of the Anti-UsuaryBoard, obtained from the justice of the peace of Tarlac, Tarlac, a search warrant(ExhibitB) commanding any officer of the law to search the person, house or store of the

petitioner at Victoria, Tarlac, for "certain books, lists, chits, receipts, documents andother papers relating to her activities as usurer." The search warrant was issued uponan affidavit given by the said Almeda "that he has and there (is) just and probable causeto believe and he does believe that Leona Pasion de Garcia keeps and conceals in herhouse and store at Victoria, Tarlac, certain books, lists, chits, receipts, documents, andother papers relating to her activities as usurer, all of which is contrary to the statute insuch cases made and provided." On the same date, the said Mariano G. Almeda,accompanied by a captain of the Philippine Constabulary, went to the office of thepetitioner in Victoria, Tarlac and, after showing the search warrant to the petitioner'sbookkeeper, Alfredo Salas, and, without the presence of the petitioner who was ill andconfined at the time, proceeded with the execution thereof. Two packages of records

and a locked filing cabinet containing several Papers and documents were seized byAlmeda and a receipt therefor issued by him to Salas. The papers and documentsseized were kept for a considerable length of time by the Anti-Usury Board andthereafter were turned over by it to the respondent fiscal who subsequently filed, in theCourt of First Instance of Tarlac, six separate criminal cases against the hereinpetitioner for violation of the Anti-Usury Law. On several occasions, after seizure, thepetitioner, through counsel, demanded from the respondent Anti-Usury Board the returnof the documents seized. On January 7. and, by motion, on June 4, 1937, the legality of


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the search warrant was challenged by counsel for the petitioner in the six criminal casesand the devolution of the documents demanded. By resolution of October 5, 1937, therespondent Judge of First Instance denied the petitioner's motion of June 4 for thereason that though the search warrant was illegal, there was a waiver on the part of thepetitioner. "En el caso presente,"declared the respondent judge, "teniendo en cuenta

que la acusada Por si o por medio de su representante, no presento protests algunacontra el registro de autos, at verificarse el mismo, o despues de un tiempo rezonable,el juzgado declare que la citada con su silencio y conducta, ha renunciadoimplicitanmente a su derecho a no ser sometido a un registro irrazonable, por lo que nole es pemitido quejarse despues, puesto que cualquier defecto queha adolecido loexpedicion de la orden de registro y su ejecucion, ha quidado implilcitamentesubsanado." A motion for reconsideration was presented but was denied by order ofJanuary 3, 1938. Petitioner registered her exception. The resolution of October 5, 1937and the order of January 3, 1938 are sought, together with the search warrant, ExhibitB, to be nullified in these proceedings.

Paragraph 3, section 1 of the bill of right of our Constitution provides as follows:

The right of the people to be secure in their persons, houses, papers, and effectsagainst unreasonable searches and seizures shall not be violated, and nowarrants shall issue but upon probable cause, to be judge after examinationunder 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 tobe seized.

Freedom from unreasonable searches and seizures is declared a popular right and for asearch warrant to be valid, (1) it must be issued upon probable cause; (2) the probable

cause must be determined by the judge himself and not by the applicant or any otherperson; (3) in the determination of probable cause, the judge must examine, under oathor affirmation, the complainant and such witnesses as the latter may produce; and (4)the warrant issued must particularly describe the place to be searched and persons orthings to be seized. These requirements are complemented by the Code of CriminalProcedure (G. O. No. 58), particularly with reference to the duration of the validity of thesearch warrant and the obligation of the officer seizing the property to deliver the sameto the corresponding court (secs. 102-104). On more than one occasion, since theapproval of the Constitution, we had emphasized the necessity of adherence to theconstitutional requirements on this subject (Alvarez vs. Court of First Instance ofTayabas and Anti-Usury Board [1937], 35 Off. Gaz., 1183; People vs. Sy Juco [1937],G.R. No. 41957; Rodriguez vs. Villamiel [1937], G.R. No. 44328; and Molo vs. Yatco[1936], 35 Off. Gaz., 1935) and we do not deem it necessary to reiterate what has beensaid or observed in these cases.

In the instant case the existence of probable cause was determined not by the judgehimself but by the applicant. All that the judge did was to accept as true the affidavitmade by agent Almeda. He did not decide for himself. It does not appear that heexamined the applicant and his witnesses, if any. Even accepting the description of the


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properties to be seized to be sufficient and on the assumption that the receipt issued issufficiently detailed within the meaning of the law, the properties seized were notdelivered to the court which issued the warrant, as required by law. (See, secs. 95 and104, G. O. No. 58.) instead, they were turned over to the respondent provincial fiscaland used by him in building up cases against the petitioner. Considering that at the time

the warrant was issued there was no case pending against the petitioner, the avermentthat the warrant was issued primarily for exploration purposes is not without basis. Thelower court is, therefore, correct in reaching the conclusion that the search warrant(Exhibit B) was illegally issued by the justice of the peace of Tarlac, Tarlac.

The important question presented is whether upon the facts and under thecircumstances of the present case, there has been a waiver by the petitioner of herconstitutional immunity against unreasonable searches and seizures. While theSolicitor-General admits that, in the light of decisions of this court, the search warrantwas illegally issued, he maintains "(1) that the petitioner had waived her constitutionalright by her acquiescence after the search and seizure, and (2) that the application for

the return of the documents illegally seized was made after an unreasonable length oftime after the date of seizure." Doubtless, the constitutional immunity againstunreasonable searches and seizures is a personal right which may be waived. (Peoplevs. Kagui Malasugui, 34 Off. Gaz., pp. 2163, 2164; 56 C.J., pp. 1178, 1179; Cf.Rodriguez vs. Villamiel, supra.) The waiver may be either express or implied (67 C.J., p.304). No express waiver has been made in the case before us. It is urged, however,that there has been a waiver by implication. It is well-settled that to constitute a waiverof a constitutional right, it must appear, first, that the right exists; secondly, that thepersons involved had knowledge, either actual or constructive, of the existence of suchright; and, lastly, that said person had an actual intention to relinquish the right. (67 C.J., 299.) It is true that the petitioner did not object to the legality of the search when itwas made. She could not have objected because she was sick and was not presentwhen the warrant was served upon Alfredo Salas. Certainly, the constitutional immunityfrom unreasonable searches and seizures, being a personal one, cannot be waived byanyone except the person whose rights are invaded or one who is expressly authorizedto do so in his or her behalf. (56 C. J., p. 1183.) Of course, the petitioner came to knowlater of the seizure of some of her papers and documents. But this was precisely thereason why she sent her attorneys to the office of the Anti-Usuary Board to demand thereturn of the documents seized. In any event, the failure on the part of the petitioner andher bookkeeper to resist or object to the execution of the warrant does not constitute animplied waiver of constitutional right. It is, as Judge Cooley observes, but a submissionto the authority of the law. (Const. Lim., 8th ed., Vol., I, p. 630.) As the constitutionalguaranty is not dependent upon any affirmative act of the citizen, the courts do notplace the citizen in the position of either contesting an officer's authority by force, orwaiving his constitutional rights; but instead they hold that a peaceful submission to asearch or seizure is not a consent or an invitation thereto, but is merely a demonstrationof regard for the supremacy of the law. (56 C.J., pp. 1180, 1181.)

As a general proposition, it may be admitted that waiver may be the result of a failure toobject within a reasonable time to a search and seizure illegally made. It must be


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observed, however, that the petitioner, on several occasions, and prior to the filing ofcriminal actions against her, had demanded verbally, through counsel, the return by the

Anti-Usuary Board of the properties seized. This is admitted by Adolfo N. Feliciano,acting chief of the board, who said that the demand was refused simply becauseno habiamos terminado con nuestra investigacion. (T.s.n., pp. 24-25.) On July 7, 1936,

counsel for the petitioner wrote a letter to the Anti-Usuary Board demanding again thereturn of the documents withheld. And in connection with the criminal cases pendingagainst the petitioner, similar demands were made on January 7, 1937 and on June 4,1937. In the light of these circumstances, we find that the petitioner did not waive herconstitutional right. The delay in making demand for the return of the documents seizedis not such as to result in waiver by implication.

In view of the foregoing, the writ prayed for is granted. The search warrant, Exhibit B, ishereby declared void and of no effect; the orders of October 5, 1937 and January 3,1938 of the respondent judge are set aside; and the respondents Anti-Usuary Boardand the provincial fiscal of Tarlac or those acting in their behalf, are hereby ordered to

return and restore to the petitioner all the properties, documents, papers and effectsillegally seized from her, within forty-eight (48) hours from the time this decisionbecomes final. Without costs. So ordered.

Avancea, C.J., Villa-Real, Abad Santos, Imperial, Diaz and Concepcion, JJ., concur.


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Manila

FIRST DIVISION

G.R. No. 124442 July 20, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.ARMANDO COMPACION y SURPOSA, accused-appellant.

KAPUNAN, J.:

Armando S. Compacion was charged with violating Section 9 of R.A. No. 6425 (knownas the Dangerous Drugs Act of 1972), as amended by R.A. No. 7659, in an information

which reads as follows:

The undersigned accuses ARMANDO COMPACION y Surposa, BarangayCaptain of Barangay Bagonbon, San Carlos City, Negros Occidental, of thecrime of "VIOLATION OF SECTION 9, REPUBLIC ACT NO. 6425, OTHERWISEKNOWN AS THE DANGEROUS DRUGS ACT OF 1972 AS AMENDED BYREPUBLIC ACT NO. 7659" committed as follows:

"That on or about 1:30 o'clock A.M., July 13, 1995, at Barangay Bagonbon, SanCarlos City, Negros Occidental, Philippines, and within the jurisdiction of thisHonorable Court, the above-named accused, without any authority of law, did,

then and there, willfully, unlawfully and criminally plant, cultivate or culture two (2)full grown Indian Hemp Plants, otherwise known as "Marijuana plants", more orless eleven (11) feet tall, in gross violation of Section 9, Republic Act No. 6425,otherwise known as the Dangerous Drugs Act of 1972 as amended by Republic

Act No. 7659."

CONTRARY TO LAW.1

Upon arraignment on August 16, 1995, the accused pleaded not guilty to the crimecharged.

Thereafter, trial ensued.

On January 2, 1996, the trial court convicted the accused of the crime charged. Thedecretal portion of the decision reads as follows:

WHEREAS, the Court finds the accused ARMANDO COMPACION Y SURPOSAGUILTY BEYOND REASONABLE DOUBT of the crime of "Violation of Section 9,R.A. No. 6425, otherwise known as The Dangerous Drugs Act of 1972, as


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amended by R.A. No. 7659" whereof he is charged in the information in theinstant case and sentences him to reclusion perpetua and to pay a fine of half amillion (P500,000.00) Pesos, Philippine Currency. The portion of the backyard ofhis residence in the poblacion proper of Brgy. Bagonbon this City and Province,in which the two (2) marijuana plants, Exh. "F", subject-matter of this case, were

planted, cultivated and cultured, is hereby ordered confiscated and escheated infavor of the State, pursuant to the aforequoted Sec. 13 R.A. 7659.

It would seem that the penalty imposed upon the accused in the instant case forhaving planted, cultivated and cultured just two (2) marijuana plants is extremelyharsh. But there is nothing in the law which allows the Court to impose a lesserpenalty in view of the peculiar facts and circumstances in this particular case.Hence, dura lex, sed lex. The law is, indeed, harsh but it is the law.

The obvious message of the law is that people should not have a nonchalant orcavalier attitude towards dangerous prohibited drugs. They should not dabble in

it as if they were a flippant thing. These dangerous and prohibited drugs are aterrible menace to the minds and morality of our people for their distortive andpervertive effects on them resulting in rampant criminality. That is why thegovernment wants this evil exterminated from our country. It is too bad that theaccused instead of helping the government in this drive, in his capacity asbarangay captain of his barangay, made a mockery of it by planting, cultivatingand culturing said two (2) marijuana plants himself.

A word of counsel and hope for the accused. This is a time of reflection forcedupon him by the result of his own act in violating the law. It is time for him tohumbly submit to the compassion of God and of his only begotten Son, whose

birth on earth to become the Saviour of all sinners, we have just celebrated, tochange and transform his own life by his coming to Him for the purpose, so thatwith a changed life, God might be gracious enough to move the heart of HisExcellency, the President, of this Country, to pardon and let him walk out ofprison a freeman. It would be good for him to read God's Word daily while inprison for his guidance, comfort and hope.

Accused convicted of the crime whereof he is charged in the information in theinstant case.

SO ORDERED.2

The accused now appeals from the above judgment of conviction and asks the Court toreverse the same on the following grounds, viz:

The lower court erred:

1. In holding that Exhibit "F" of the prosecution, consisting of two marijuanaplants wrapped in plastic, is admissible in evidence against the accused as the


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corpus delicti in the instant case, inspite of the fact that the prosecution failed toprove that the specimens of marijuana (Exhibit "F") examined by the forensicchemist were the ones purportedly planted and cultivated by the accused, and ofthe fact that the prosecution failed to establish the evidence's chain of custody;and

2. In holding that the warrantless search of the residence of the accused at 1:30o'clock in the morning of July 13, 1995 at Barangay Bagonbon, San Carlos City,Negros Occidental, and seizure of two eleven feet tall, more or less, full grownsuspected Indian Hemp, otherwise known as Marijuana plants, leading to thesubsequent arrest of the accused, were valid on the ground that the accused hascommitted the crime of cultivating the said marijuana plants in violation of Sec. 9,RA 6425 (Dangerous Drugs Act of 1972), as amended by RA 7659 in open view,inspite of the fact that they had to enter the dwelling of the accused to get to theplace where the suspected marijuana plants were planted, and in admitting inevidence the said plants, later marked as Exhibit "F", against the accused, inspite

of the fact that the said plants were the fruits of the poisonous tree.

3

The relevant facts are as follows:

Acting on a confidential tip supplied by a police informant that accused-appellant wasgrowing and cultivating marijuana plants, SPO1 Gilbert L. Linda and SPO2 BasilioSarong of the 6th Narcotic Regional Field Unit of the Narcotics Command (NARCOM) ofthe Bacolod City Detachment conducted a surveillance of the residence of accused-appellant who was then the barangay captain of barangay Bagonbon, San Carlos City,Negros Occidental on July 9, 1995. During the said surveillance, they saw two (2) tallplants in the backyard of the accused-appellant which they suspected to be marijuana

plants.

4

SPO1 Linda and SPO2 Sarong reported the result of their surveillance to SPO4 RanulfoT. Villamor, Jr., Chief of NARCOM, Bacolod City, who immediately formed a teamcomposed of the members of the Intelligence Division Provincial Command, theCriminal Investigation Command and the Special Action Force. Two members of themedia, one from DYWF Radio and another from DYRL Radio, were also included in thecomposite team.

On July 12, 1995, the team applied for a search warrant with the office of ExecutiveJudge Bernardo Ponferrada in Bacolod City. However, Judge Ponferrada informed themthat he did not have territorial jurisdiction over the matter. 5 The team then left BacolodCity for San Carlos City. They arrived there around six-thirty in the evening, then went tothe house of Executive Judge Roberto S. Javellana to secure a search warrant. Theywere not able to do so because it was nighttime and office hours were obviously over.They were told by the judge to go back in the morning.6

Nonetheless, the team proceeded to barangay Bagonbon and arrived at the residenceof accused-appellant in the early morning of July 13, 1995. SPO4 Villamor knocked at


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the gate and called out for the accused-appellant. What happened thereafter is subjectto conflicting accounts. The prosecution contends that the accused-appellant openedthe gate and permitted them to come in. He was immediately asked by SPO4 Villamorabout the suspected marijuana plants and he admitted that he planted and cultivatedthe same for the use of his wife who was suffering from migraine. SPO4 Villamor then

told him that he would be charged for violation of Section 9 of R.A. No. 6425 andinformed him of his constitutional rights. The operatives then uprooted the suspectedmarijuana plants. SPO1 Linda conducted an initial field test of the plants by using theNarcotics Drug Identification Kit. The test yielded a positive result.7

On July 15, 1995, the plants were turned over to the Philippine National Police (PNP)Crime Laboratory, Bacolod City Police Command, particularly to Senior Inspector Reah

Abastillas Villavicencio. Senior Inspector Villavicencio weighed and measured theplants, one was 125 inches and weighed 700 grams while the other was 130 inches andweighed 900 grams. Three (3) qualitative examinations were conducted, namely: themicroscopic test, the chemical test, and the thin layer chromatographic test. All yielded

positive results.

8

On his part, accused-appellant maintains that around one-thirty in the early morning ofJuly 13, 1995 while he and his family were sleeping, he heard somebody knockingoutside his house. He went down bringing with him a flashlight. After he opened thegate, four (4) persons who he thought were members of the military, entered thepremises then went inside the house. It was dark so he could not count the others whoentered the house as the same was lit only by a kerosene lamp. One of the four mentold him to sit in the living room. Some of the men went upstairs while the others wentaround the house. None of them asked for his permission to search his house and thepremises.9

After about twenty (20) minutes of searching, the men called him outside and broughthim to the backyard. One of the military men said: "Captain, you have a (sic) marijuanahere at your backyard" to which accused-appellant replied: "I do not know that theywere (sic) marijuana plants but what I know is that they are medicinal plants for my wife"who was suffering from migraine.10

After he was informed that the plants in his backyard were marijuana, the men tookpictures of him and themselves. Thereafter, he was brought inside the house where heand the military men spent the night.11

At around ten o'clock that same morning, they brought him with them to the city hall.Accused-appellant saw that one of the two (2) service vehicles they brought was fullyloaded with plants. He was later told by the military men that said plants weremarijuana.12 Upon arrival at the city hall, the men met with the mayor and then unloadedthe alleged marijuana plants. A picture of him together with the arresting team wastaken with the alleged marijuana as back drop. Soon thereafter, he was taken to Hda.Socorro at the SAF Headquarters.13


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A criminal complaint for violation of Section 9 of R.A. No. 6425, as amended by R.A.No. 7659 was filed against accused-appellant.

Turning to the legal defenses of accused-appellant, we now consider his allegation thathis constitutional right against unreasonable searches and seizures had been violated

by the police authorities.

The relevant constitutional provisions are found in Sections 2 and 3 [2], Article III of the1987 Constitution which read as follows:

Sec. 2. The right of the people to be secure in their persons, houses, papers, andeffects against unreasonable searches and seizures of whatever nature and forany purpose shall be inviolable, and no search warrant or warrant of arrest shallissue except upon probable cause to be determined personally by the judge afterexamination under oath or affirmation of the complainant and the witnesses hemay produce, and particularly describing the place to be searched and the

persons or things to be seized.

Sec. 3. xxx

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

Said constitutional provisions are safeguards against reckless, malicious andunreasonable invasion of privacy and liberty. The Court, in Villanueva v.Querubin,14 underscored their importance:

It is deference to one's personality that lies at the core of this right, but it could bealso looked upon as a recognition of a constitutionally protected area, primarilyone's home, but not necessarily thereto confined. What is sought to be guardedis a man's prerogative to choose who is allowed entry to his residence. In thathaven of refuge, his individuality can assert itself not only in the choice of whoshall be welcome but likewise in the kind of objects he wants around him. Therethe state, however powerful, does not as such have access except under thecircumstances above noted, for in the traditional formulation, his house, howeverhumble, is his castle. Thus is outlawed any unwarranted intrusion bygovernment, which is called upon to refrain from any invasion of his dwelling andto respect the privacies of his life. In the same vein, Landynski in his authoritative

work could fitly characterize this constitutional right as the embodiment of "aspiritual concept: the belief that to value the privacy of home and person and toafford its constitutional protection against the long reach of government is no lessthan to value human dignity, and that his privacy must not be disturbed except incase of overriding social need, and then only under stringent proceduralsafeguards."15


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A search and seizure, therefore, must be carried out through or with a judicial warrant;otherwise, such search and seizure becomes "unreasonable" within the meaning of theconstitutional provision.16 Evidence secured thereby, i.e., the "fruits" of the search andseizure, will be inadmissible in evidence for any purpose in any proceeding."17

The requirement that a warrant must be obtained from the proper judicial authority priorto the conduct of a search and seizure is, however, not absolute. There are severalinstances when the law recognizes exceptions, such as when the owner of the premisesconsents or voluntarily submits to a search;18 when the owner of the premises waiveshis right against such incursion;19 when the search is incidental to a lawful arrest;20 whenit is made on vessels and aircraft for violation of customs laws;21 when it is made onautomobiles for the purpose of preventing violations of smuggling or immigrationlaws;22 when it involves prohibited articles in plain view;23 when it involves a "stop andfrisk" situation;24 when the search is under exigent and emergency circumstances; 25 orin cases of inspection of buildings and other premises for the enforcement of fire,sanitary and building regulations.26 In these instances, a search may be validly made

even without a warrant.

In the instant case, the search and seizure conducted by the composite team in thehouse of accused-appellant was not authorized by a search warrant. It does not appeareither that the situation falls under any of the above mentioned cases. Consequently,accused-appellant's right against unreasonable search and seizure was clearly violated.

It is extant from the records that accused-appellant did not consent to the warrantlesssearch and seizure conducted. While the right to be secure from unreasonable searchand seizure may, like every right, be waived either expressly or impliedly,27 such waivermust constitute a valid waiver made voluntarily, knowingly and intelligently. The act of

the accused-appellant in allowing the members of the military to enter his premises andhis consequent silence during the unreasonable search and seizure could not beconstrued as voluntary submission or an implied acquiescence to warrantless searchand seizure especially so when members of the raiding team were intimidatinglynumerous and heavily armed. His implied acquiescence, if any, could not have beenmore than mere passive conformity given under coercive or intimidating circumstancesand is, thus, considered no consent at all within the purview of the constitutionalguarantee. Consequently, herein accused-appellant's lack of objection to the searchand seizure is not tantamount to a waiver of his constitutional right or a voluntarysubmission to the warrantless search and seizure.28 The case ofPeople v. Burgos,29 isinstructive. In Burgos, the Court ruled that the accused is not to be presumed to havewaived the unlawful search "simply because he failed to object." There, we held:

xxx To constitute a waiver, it must appear first that the right exists; secondly, thatthe person involved had knowledge, actual or constructive, of the existence ofsuch a right; and lastly, that said person had an actual intention to relinquish theright (Pasion Vda. De Garcia v. Locsin, 65 Phil. 689). The fact that the accusedfailed to object to the entry into his house does not amount to a permission to


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make a search therein (Magoncia v. Palacio, 80 Phil. 770). As pointed out byJustice Laurel in the case ofPasion Vda. De Garcia v. Locsin (supra);

xxx xxx xxx

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

We apply the rule that: "courts indulge every reasonable presumption againstwaiver of fundamental constitutional rights and that we do not presumeacquiescence in the loss of fundamental rights."30

Neither could the members of the composite team have justified their search ofaccused-appellant's premises by invoking the necessity and urgency of the situation. Itwas admitted by the members of the arresting team that the residence of accused-appellant had already been put under surveillance following a tip from a confidentialinformant. The surveillance was conducted on July 9, 1995 while the alleged marijuanaplants were seized four (4) days later or on July 13, 1995. Surely, the raiding team hadall the opportunity to have first secured a search warrant before forcing their way intoaccused-appellant's premises. In fact, they earlier had approached then ExecutiveJudge Ponferrada of Bacolod City who declined to issue one on the ground that thematter was outside his territorial jurisdiction. Then, they went to Executive JudgeJavellana of San Carlos City in the evening of July 12, 1995 who asked them to come

back in the morning as it was already nighttime and outside of office hours. However, intheir haste to apprehend the accused-appellant on the pretext that information of hisimpending arrest may be leaked to him, the team proceeded to go to his residence toarrest him and seize the alleged marijuana plants. The team's apprehension of a tip-offwas unfounded. It is far-fetched that one could have gone to accused-appellant's placebefore the following morning to warn him of his impending arrest as barangayBagonbon is an isolated and difficult to reach mountain barangay. The road leading to itwas rough, hilly and eroded by rain and flood.31 A few hours delay to await the issuanceof a warrant in the morning would not have compromised the team's operation.

In justifying the validity of the warrantless arrest, search and seizure on July 13, 1995,the trial court ruled that the accused-appellant was caught " inflagrante delictoof havingplanted, grown and cultivated the marijuana plants" which was "easily visible fromoutside of the residence of the accused."32 Thus, the trial court concluded that:

xxx (T)he said two (2) marijuana plants, Exh. "F", were the very corpus delictiofthe crime the accused has been committing since the time he planted them in thebackyard of his residence for whatever reason acorpus delictiwhich theNARCOM agents saw with their very own eyes as the same were in plain view


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when they made a surveillance in the accused's place on July 9, 1995. Saidcorpus delicti has remained on the spots in accused's backyard where they hadbeen growing since the time they were planted there and, therefore, any peaceofficer or even private citizen, for that matter, who has seen said plants andrecognized them as marijuana, was by law empowered and authorized to arrest

the accused even without any warrant of arrest.

The accused was caught in flagrante delicto for he was carryingmarijuana, hence, committing a crime, at the time of his arrest. Thewarrantless search which was conducted following a lawful arrest, wasvalid.

- People vs. Bandin (Dec. 10, 1993)

226 SCRA 299, at p. 300

The accused was caught in flagrante delicto growing, cultivating and culturingsaid two (2) marijuana plants, Exh. "F", in the backyard of his residence, whichthe NARCOM agents uprooted from there at the time they arrested andapprehended him. Under said circumstances, a search warrant and/or warrant ofarrest were not legally needed before the NARCOM agents could effect thearrest of the accused.33

As a general rule, objects in the "plain view" of an officer who has the right to be in theposition to have that view are subject to seizure without a warrant. 34 It is usually appliedwhere a police officer is not searching for evidence against the accused, butnonetheless inadvertently comes across an incriminating object.35 Thus, the following

elements must be present before the doctrine may be applied: (a) a prior valid intentionbased on the valid warrantless arrest in which the police are legally present in thepursuit of their official duties; (b) the evidence was inadvertently discovered by thepolice who have the right to be where they are; (c) the evidence must be immediatelyapparent; and (d) "plain view" justified were seizure of evidence without further search.36

Here, there was no valid warrantless arrest. They forced their way into accused-appellant's premises without the latter's consent. It is undisputed that the NARCOMagents conducted a surveillance of the residence of accused-appellant on July 9, 1995on the suspicion that he was growing and cultivating marijuana when they allegedlycame in "plain view" of the marijuana plants. When the agents entered his premises on

July 13, 1995, their intention was to seize the evidence against him. In fact, they initiallywanted to secure a search warrant but could not simply wait for one to be issued. TheNARCOM agents, therefore, did not come across the marijuana plants inadvertentlywhen they conducted a surveillance and barged into accused-appellant's residence.

In People v. Musa,37 the Court held:


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The "plain view" doctrine may not, however, be used to launch unbridledsearches and indiscriminate seizures nor to extend a general exploratory searchmade solely to find evidence of defendant's guilt. The "plain view" doctrine isusually applied where a police officer is not searching for evidence against theaccused, but nonetheless inadvertently comes across an incriminating object.

[Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed. 2d 564 (1971)]Furthermore, the U.S. Supreme Court stated the following limitations on theapplication of the doctrine:

What the "plain view" cases have in common is that the police officer ineach of them had a prior justification for an intrusion in the course of whichhe came inadvertently across a piece of evidence incriminating theaccused. The doctrine serves to supplement the prior justification whether it be a warrant for another object, hot pursuit, search incident tolawful arrest, or some other legitimate reason for being presentunconnected with a search directed against the accused and permits the

warrantless seizure. Of course, the extension of the original justification islegitimate only where it is immediately apparent to the police that theyhave evidence before them; the "plain view" doctrine may not be used toextend a general exploratory search from one object to another untilsomething incriminating at last emerges. [Id., 29 L.Ed. 2d 583. SeealsoTexas v. Brown, 460 U.G. 730, 75 L. Ed. 2d 502 (1983)]

It was not even apparent to the members of the composite team whether the plantsinvolved herein were indeed marijuana plants. After said plants were uprooted, SPO1Linda had to conduct a field test on said plants by using a Narcotics Drug IdentificationKit to determine if the same were indeed marijuana plants.38 Later, Senior Inspector

Villavicencio, a forensic chemist, had to conduct three (3) qualitative examinations todetermine if the plants were indeed marijuana.39

Since the evidence was secured on the occasion of an unreasonable search andseizure, the same is tainted and illegal and should therefore be excluded for being theproverbial fruit of a poisonous tree.40 In People v. Aruta,41we held that:

The exclusion of such evidence is the only practical means of enforcing theconstitutional injunction against unreasonable searches and seizure. The non-exclusionary rule is contrary to the letter and spirit of the prohibition againstunreasonable searches and seizures.

While conceding that the officer making the unlawful search and seizure may beheld criminally and civilly liable, the Stonehillcase observed that most

jurisdictions have realized that the exclusionary rule is "he only practical meansof enforcing the constitutional injunction" against abuse. This approach is basedon the justification made by Judge Learned Hand that "only in case theprosecution which itself controls the seizing officials, knows that it cannot profitby their wrong, will the wrong be repressed."


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Unreasonable searches and seizures are the menace against which theconstitutional guarantees afford full protection. While the power to search andseize may at times be necessary to the public welfare, still it may be exercisedand the law enforced without transgressing the constitutional rights of thecitizens, for the enforcement of no statute is of sufficient importance to justify

indifference to the basic principles of government.

Those who are supposed to enforce the law are not justified in disregarding therights of the individual in the name of order. Order is too high a price to pay forthe loss of liberty. As Justice Holmes declared: "I think it is less evil that somecriminals escape than that the government should play an ignoble part." It issimply not allowed in free society to violate a law to enforce another, especially ifthe law violated is the Constitution itself.42

WHEREFORE, the decision of the Regional Trial Court of San Carlos City, Branch 58 ishereby REVERSED andSET ASIDE. Accused-appellant Armando S. Compacion is

hereby ACQUITTED of the crime charged on ground of reasonable doubt. He isordered released from confinement unless he is being held for some other legalgrounds. The subject marijuana is ordered disposed of in accordance with law. 1wphi1.nt

SO ORDERED.

Davide, Jr., C.J., Puno, Pardo, Ynares-Santiago, JJ., concur.


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Manila

SECOND DIVISION

G. R. Nos. 102009-10 July 6, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.ROLANDO DE GRACIA, CHITO HENSON and JOHN DOES, accused. ROLANDODE GRACIA, accused-appellant.

The Solicitor General for plaintiff-appellee.

Nicolas R. Ruiz, II for accused-appellant.

REGALADO, J.:

The incidents involved in this case took place at the height of the coup d' etatstaged inDecember, 1989 by ultra-rightist elements headed by the Reform the Armed ForcesMovement-Soldiers of the Filipino People (RAM-SFP) against the Government. At thattime, various government establishments and military camps in Metro Manila were

being bombarded by the rightist group with their"tora-tora"planes. At around midnightof November 30, 1989, the 4th Marine Battalion of the Philippine Marines occupiedVillamor Air Base, while the Scout Rangers took over the Headquarters of the Philippine

Army, the Army Operations Center, and Channel 4, the government television station.Also, some elements of the Philippine Army coming from Fort Magsaysay occupied theGreenhills Shopping Center in San Juan, Metro Manila. 1

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

103.

In Criminal Case No. Q-90-11755, Rolando de Gracia, Chito Henson and several JohnDoes whose true names and identities have not as yet been ascertained, were chargedwith the crime of illegal possession of ammunition and explosives in furtherance ofrebellion, penalized under Section 1, paragraph 3, of Presidential Decree No. 1866,allegedly committed as follows:


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That on or about the 5th day of DECEMBER, 1989, in QUEZON CITY,METRO MANILA, PHILIPPINES, and within the jurisdiction of thisHonorable Court, the above-named accused, conspiring andconfederating together and mutually helping one another, and withoutauthority of law, did then and there willfully, unlawfully, feloniously and

knowingly have in their possession, custody and control, the following towit:

Five (5) bundles of C-4 or dynamitesSix (6) cartoons of M-16 ammunition at 20 eachOne hundred (100) bottles of MOLOTOV bombs

without first securing the necessary license and/or permit to possess the same from theproper authorities, and armed with said dynamites, ammunition and explosives andpursuant to their conspiracy heretofore agreed upon by them and prompted by commondesigns, come to an agreement and decision to commit the crime of rebellion, by thenand there participating therein and publicly taking arms against the duly constituted

authorities, for the purpose of overthrowing the Government of the Republic of thePhilippines, disrupting and jeopardizing its activities and removing from its allegiance the

territory of the Philippines or parts thereof.2

In Criminal Case No. Q-90-11756, Rolando de Gracia, Chito Henson, Lamberto Bicus,Rodolfo Tor and several John Does were charged with attempted homicide allegedlycommitted on December 1, 1989 in Quezon City upon the person of Crispin Sagariowho was shot and hit on the right thigh.

Appellant was convicted for illegal possession of firearms in furtherance of rebellion, butwas acquitted of attempted homicide.

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

The records show that in the early morning of December 1, 1989, Maj. Efren Soria ofthe Intelligence Division, National Capital Region Defense Command, was on board abrown Toyota car conducting a surveillance of the Eurocar Sales Office located atEpifanio de los Santos Avenue in Quezon City, together with his team composed of Sgt.Crispin Sagario, M/Sgt. Ramon Briones, S/Sgt. Henry Aquino, one S/Sgt. Simon and aSgt. Ramos. The surveillance, which actually started on the night of November 30, 1989

at around 10:00 P.M., was conducted pursuant to an intelligence report received by thedivision that said establishment was being occupied by elements of the RAM-SFP as acommunication command post.

Sgt. Crispin Sagario, the driver of the car, parked the vehicle around ten to fifteenmeters away from the Eurocar building near P. Tuazon Street, S/Sgt. Henry Aquino hadearlier alighted from the car to conduct his surveillance on foot. A crowd was thengathered near the Eurocar office watching the on-going bombardment near Camp


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Aguinaldo. After a while, a group of five men disengaged themselves from the crowdand walked towards the car of the surveillance team. At that moment, Maj. Soria, whowas then seated in front, saw the approaching group and immediately ordered Sgt.Sagario to start the car and leave the area. As they passed by the group, then only sixmeters away, the latter pointed to them, drew their guns and fired at the team, which

attack resulted in the wounding of Sgt. Sagario on the right thigh. Nobody in thesurveillance team was able to retaliate because they sought cover inside the car andthey were afraid that civilians or bystanders might be caught in the cross-fire.

As a consequence, at around 6:30 A.M. of December 5, 1989, a searching teamcomposed of F/Lt. Virgilio Babao as team leader, M/Sgt. Lacdao, Sgt. Magallion, Sgt.Patricio Pacatang, and elements of the 16th Infantry Battalion under one Col. delosSantos raided the Eurocar Sales Office. They were able to find and confiscate sixcartons of M-16 ammunition, five bundles of C-4 dynamites, M-shells of differentcalibers, and "molotov"bombs inside one of the rooms belonging to a certain Col.Matillano which is located at the right portion of the building. Sgt. Oscar Obenia, the first

one to enter the Eurocar building, saw appellant De Gracia inside the office of Col.Matillano, holding a C-4 and suspiciously peeping through a door. De Gracia was theonly person then present inside the room. A uniform with the nametag of Col. Matillanowas also found. As a result of the raid, the team arrested appellant, as well as SopriesoVerbo and Roberto Jimena who were janitors at the Eurocar building. They were thenmade to sign an inventory, written in Tagalog, of the explosives and ammunitionconfiscated by the raiding team. No search warrant was secured by the raiding teambecause, according to them, at that time there was so much disorder considering thatthe nearby Camp Aguinaldo was being mopped up by the rebel forces and there wassimultaneous firing within the vicinity of the Eurocar office, aside from the fact that thecourts were consequently closed. The group was able to confirm later that the owner ofEurocar office is a certain Mr. Gutierrez and that appellant is supposedly a "boy"therein.

Appellant Rolando de Gracia gave another version of the incident. First, he claims thaton November 30, 1989, he was in Antipolo to help in the birthday party of Col. Matillano.He denies that he was at the Eurocar Sales Office on December 1, 1989. Second, hecontends that when the raiding team arrived at the Eurocar Sales Office on December5, 1989, he was inside his house, a small nipa hut which is adjacent to the building.

According to him, he was tasked to guard the office of Col. Matillano which is located atthe right side of the building. He denies, however, that he was inside the room of Col.Matillano when the raiding team barged in and that he had explosives in his possession.He testified that when the military raided the office, he was ordered to get out of hishouse and made to lie on the ground face down, together with "Obet" and "Dong" whowere janitors of the building. He avers that he does not know anything about theexplosives and insists that when they were asked to stand up, the explosives werealready there.

Appellant stated that he visited Col. Matillano in 1987 at the stockade of the PhilippineConstabulary-Integrated National Police (PC-INP), and that he knew Matillano was


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detained because of the latter's involvement in the 1987coup d' etat. In July, 1989,appellant again went to see Matillano because he had no job. Col. Matillano then toldhim that he could stay in the PC-INP stockade and do the marketing for them. From thattime until his arrest at the Eurocar office, appellant worked for Matillano.

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

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

jail term of five (5) years of good behavior.

That judgment of conviction is now challenged before us in this appeal.

Appellant principally contends that he cannot be held guilty of illegal possession offirearms for the reason that he did not have either physical or constructive possessionthereof considering that he had no intent to possess the same; he is neither the ownernor a tenant of the building where the ammunition and explosives were found; he wasmerely employed by Col. Matillano as an errand boy; he was guarding the explosivesfor and in behalf of Col. Matillano; and he did not have actual possession of theexplosives. He claims that intent to possess, which is necessary before one can be

convicted under Presidential Decree No. 1866, was not present in the case at bar.

Presidential Decree No. 1866 provides as follows:

Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition orPossession of Firearms or Ammunition or Instruments Used or intended tobe Used in the Manufacture of Firearms or Ammunition. The penaltyofreclusion temporalin its maximum period to reclusion perpetuashall beimposed upon any person who shall unlawfully manufacture, deal in,acquire, dispose, or possess any firearms, part of firearms, ammunition ormachinery, tool or instrument used or intended to be used in the

manufacture of any firearm or ammunition.

If homicide or murder is committed with the use of an unlicensed firearm,the penalty of death shall be imposed.

If the violation of this Section is in furtherance of, or incident to, or inconnection with the crimes of rebellion, insurrection or subversion, thepenalty of death shall be imposed.


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Presidential Decree No. 1866 was passed because of an upsurge of crimes vitallyaffecting public order and safety due to the proliferation of illegally possessed andmanufactured firearms, ammunition and explosives, and which criminal acts haveresulted in loss of human lives, damage to property and destruction of valuableresources of the country. The series ofcoup d' etatsunleashed in the country during the

first few years of the transitional government under then President Corazon P. Aquinoattest to the ever-growing importance of laws such as Presidential Decree No. 1866which seek to nip in the bud and preempt the commission of any act or acts which tendto disturb public peace and order.

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

The rule is that ownership is not an essential element of illegal possession of firearmsand ammunition. What the law requires is merely possession which includes not only

actual physical possession but also constructive possession or the subjection of thething to one's control and management. 6This has to be so if the manifest intent of thelaw is to be effective. The same evils, the same perils to public security, which the lawpenalizes exist whether the unlicensed holder of a prohibited weapon be its owner or aborrower. To accomplish the object of this law the proprietary concept of the possessioncan have no bearing whatsoever. 7

But is the mere fact of physical or constructive possession sufficient to convict a personfor unlawful possession of firearms or must there be an intent to possess to constitute aviolation of the law? This query assumes significance since the offense of illegalpossession of firearms is a malum prohibitumpunished by a special law, 8in which case

good faith and absence of criminal intent are not valid defenses.

9

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

In the present case, a distinction should be made between criminal intent and intent topossess. While mere possession, without criminal intent, is sufficient to convict a personfor illegal possession of a firearm, it must still be shown that there was animuspossidendior an intent to possess on the part of the accused. 11Such intent to possessis, however, without regard to any other criminal or felonious intent which the accusedmay have harbored in possessing the firearm. Criminal intent here refers to the intentionof the accused to commit an offense with the use of an unlicensed firearm. This is notimportant in convicting a person under Presidential Decree No. 1866. Hence, in order


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that one may be found guilty of a violation of the decree, it is sufficient that the accusedhad no authority or license to possess a firearm, and that he intended to possess thesame, even if such possession was made in good faith and without criminal intent.

Concomitantly, a temporary, incidental, casual, or harmless possession or control of a

firearm cannot be considered a violation of a statute prohibiting the possession of thiskind of weapon, 12such as Presidential Decree No. 1866. Thus, although there isphysical or constructive possession, for as long as the animus possidendiis absent,there is no offense committed.

Coming now to the case before us, there is no doubt in our minds that appellant DeGracia is indeed guilty of having intentionally possessed several firearms, explosivesand ammunition without the requisite license or authority therefor. Prosecution witnessSgt. Oscar Abenia categorically testified that he was the first one to enter the EurocarSales Office when the military operatives raided the same, and he saw De Graciastanding in the room and holding the several explosives marked in evidence as Exhibits

D to D-4.

13

At first, appellant denied any knowledge about the explosives. Then, healternatively contended that his act of guarding the explosives for and in behalf of Col.Matillano does not constitute illegal possession thereof because there was no intent onhis part to possess the same, since he was merely employed as an errand boy of Col.Matillano. His pretension of impersonal or indifferent material possession does not andcannot inspire credence.

Animus possidendiis a state of mind which may be determined on a case to case basis,taking into consideration the prior and coetaneous acts of the accused and thesurrounding circumstances. What exists in the realm of thought is often disclosed in therange of action. It is not controverted that appellant De Gracia is a former soldier,

having served with the Philippine Constabulary prior to his separation from the servicefor going on absence without leave(AWOL). 14We do not hesitate, therefore, to believe and conclude that he is familiar withand knowledgeable about the dynamites, "molotov"bombs, and various kinds ofammunition which were confiscated by the military from his possession. As a formersoldier, it would be absurd for him not to know anything about the dangerous uses andpower of these weapons. A fortiori, he cannot feign ignorance on the import of having inhis possession such a large quantity of explosives and ammunition. Furthermore, theplace where the explosives were found is not a military camp or office, nor one wheresuch items can ordinarily but lawfully be stored, as in a gun store, an arsenal or armory.Even an ordinarily prudent man would be put on guard and be suspicious if he findsarticles of this nature in a place intended to carry out the business of selling cars andwhich has nothing to do at all, directly or indirectly, with the trade of firearms andammunition.

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


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

imposed.

It is admitted that the military operatives who raided the Eurocar Sales Office were notarmed with a search warrant at that time. 15The raid was actually precipitated byintelligence reports that said office was being used as headquarters by the RAM. 16Priorto the raid, there was a surveillance conducted on the premises wherein thesurveillance team was fired at by a group of men coming from the Eurocar building.When the military operatives raided the place, the occupants thereof refused to openthe door despite requests for them to do so, thereby compelling the former to break intothe office. 17The Eurocar Sales Office is obviously not a gun store and it is definitely notan armory or arsenal which are the usual depositories for explosives and ammunition. It

is primarily and solely engaged in the sale of automobiles. The presence of an unusualquantity of high-powered firearms and explosives could not be justifiably or evencolorably explained. In addition, there was general chaos and disorder at that timebecause of simultaneous and intense firing within the vicinity of the office and in thenearby Camp Aguinaldo which was under attack by rebel forces. 18The courts in thesurrounding areas were obviously closed and, for that matter, the building and housestherein were deserted.

Under the foregoing circumstances, it is our considered opinion that the instant casefalls under one of the exceptions to the prohibition against a warrantless search. In thefirst place, the military operatives, taking into account the facts obtaining in this case,

had reasonable ground to believe that a crime was being committed. There wasconsequently more than sufficient probable cause to warrant their action. Furthermore,under the situation then prevailing, the raiding team had no opportunity to apply for andsecure a search warrant from the courts. The trial judge himself manifested that onDecember 5, 1989 when the raid was conducted, his court was closed. 19Under suchurgency and exigency of the moment, a search warrant could lawfully be dispensedwith.

The view that we here take is in consonance with our doctrinal ruling which was amplyexplained in People vs. Malmstedt 20and bears reiteration:

While it is true that the NARCOM officers were not armed with a searchwarrant when the search was made over the personal effects of accused,however, under the circumstances of the case, there was sufficientprobable cause for said officers to believe that accused was then andthere committing a crime.

Probable cause has been defined as such facts and circumstances whichwould lead a reasonable, discreet and prudent man to believe that an


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offense has been committed, and that the objects sought in connectionwith the offense are in the place sought to be searched. The requiredprobable cause that will justify a warrantless search and seizure is notdetermined by any fixed formula but is resolved according to the facts ofeach case.

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

Aside from the persistent reports received by the NARCOM that vehiclescoming from Sagada were transporting marijuana and other prohibiteddrugs, their Commanding Officer also received information that aCaucasian coming from Sagada on that particular day had prohibited

drugs in his possession. Said information was received by theCommanding Officer of NARCOM the very same morning that accusedcame down by bus from Sagada on his way to Baguio City.

When NARCOM received the information, a few hours before theapprehension of herein accused, that a Caucasian travelling from Sagadato Baguio City was carrying with him prohibited drugs, there was no timeto obtain a search warrant. In the Tanglibencase, the police authoritiesconducted a surveillance at the Victory Liner Terminal located at Bgy. SanNicolas, San Fernando, Pampanga, against persons engaged in the trafficof dangerous drugs, based on information supplied by some informers.

Accused Tanglibenwho was acting suspiciously and pointed out by aninformer was apprehended and searched by the police authorities. It washeld that when faced with on-the-spot information, the police officers hadto act quickly and there was no time to secure a search warrant.

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

The receipt of information by NARCOM that a Caucasian coming fromSagada had prohibited drugs in his possession, plus the suspicious failureof the accused to produce his passport, taken together as a whole, led the


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NARCOM officers to reasonably believe that the accused was trying tohide something illegal from the authorities. From these circumstancesarose a probable cause which justified the warrantless search that wasmade on the personal effects of the accused. In other words, the acts ofthe NARCOM officers in requiring the accused to open his pouch bag and

in opening one of the wrapped objects found inside said bag (which wasdiscovered to contain hashish) as well as the two (2) teddy bears withhashish stuffed inside them, were prompted by accused's own attempt tohide his identity by refusing to present his passport, and by the informationreceived by the NARCOM that a Caucasian coming from Sagada hadprohibited drugs in his possession. To deprive the NARCOM agents of theability and facility to act accordingly, including, to search even withoutwarrant, in the light of such circumstances, would be to sanctionimpotence and ineffectiveness in law enforcement, to the detriment ofsociety.

In addition, we find the principle enunciated in Umil, et al., vs. Ramos,et al.,21applicable, by analogy, to the present case:

The arrest of persons involved in the rebellion whether as its fightingarmed elements, or for committing non-violent acts but in furtherance ofthe rebellion, is more an act of capturing them in the course of an armedconflict, to quell the rebellion, than for the purpose of immediatelyprosecuting them in court for a statutory offense. The arrest, therefore,need not follow the usual procedure in the prosecution of offenses whichrequires the determination by a judge of the existence of probable causebefore the issuance of a judicial warrant of arrest and the granting of bail if

the offense is bailable. Obviously the absence of a judicial warrant is nolegal impediment to arresting or capturing persons committing overt actsof violence against government forces, or any other milder acts but reallyin pursuance of the rebellious movement. The arrest or capture is thusimpelled by the exigencies of the situation that involves the very survival ofsociety and its government and duly constituted authorities. If killing andother acts of violence against the rebels find justification in the exigenciesof armed hostilities which (are) of the essence of waging a rebellion orinsurrection, most assuredly so in case of invasion, merely seizing theirpersons and detaining them while any of these contingencies continuescannot be less justified.

III. As earlier stated, it was stipulated and admitted by both parties that from November30, 1989 up to and until December 9, 1989, there was a rebellion. Ergo, our next inquiryis whether or not appellant's possession of the firearms, explosives and ammunitionseized and recovered from him was for the purpose and in furtherance of rebellion.

The trial court found accused guilty of illegal possession of firearms in furtherance ofrebellion pursuant to paragraph 2 of Article 135 of the Revised Penal Code which states


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that "any person merely participating or executing the command of others in a rebellionshall suffer the penalty ofprision mayorin its minimum period." The court below heldthat appellant De Gracia, who had been servicing the personal needs of Col. Matillano(whose active armed opposition against the Government, particularly at the CamelotHotel, was well known), is guilty of the act of guarding the explosives

and "molotov"bombs for and in behalf of the latter. We accept this finding of the lowercourt.

The above provision of the law was, however, erroneously and improperly used by thecourt below as a basis in determining the degree of liability of appellant and the penaltyto be imposed on him. It must be made clear that appellant is charged with the qualifiedoffense of illegal possession of firearms in furtherance of rebellion under PresidentialDecree No. 1866 which, in law, is distinct from the crime of rebellion punished under

Articles 134 and 135 of the Revised Penal Code. These are two separate statutespenalizing different offenses with discrete penalties. The Revised Penal Code treatsrebellion as a crime apart from murder, homicide, arson, or other offenses, such as

illegal possession of firearms, that might conceivably be committed in the course of arebellion. Presidential Decree No. 1866 defines and punishes, as a specific offense, thecrime of illegal possession of firearms committed in the course or as part of arebellion. 22

As a matter of fact, in one case involving the constitutionality of Section 1 of PresidentialDecree No. 1866, the Court has explained that said provision of the law will not beinvalidated by the mere fact that the same act is penalized under two different statuteswith different penalties, even if considered highly advantageous to the prosecution andonerous to the accused. 23It follows that, subject to the presence of the requisiteelements in each case, unlawful possession of an unlicensed firearm in furtherance of

rebellion may give rise to separate prosecutions for a violation of Section 1 ofPresidential Decree No. 1866, and also a violation of Articles 134 and 135 of theRevised Penal Code on rebellion. Double jeopardy in this case cannot be invokedbecause the first is an offense punished by a special law while the second is a felonypunished by the Revised Penal Code, 24with variant elements.

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

Withal, we are duly convinced that the firearms, explosives and ammunition confiscatedfrom appellant De Gracia were illegally possessed by him in furtherance of the rebellionthen admittedly existing at that time. In the words of the court a quo:

2. the nature and quantity of the items 5 bundles of C-4 dynamites, 6cartons of M-16 ammo and 100 bottles of molotov bombs indicate that the


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reports received by the military that the Eurocar Sales Building was beingused by the rebels was not without basis. Those items are clearly not forone's personal defense. They are for offensive operations. De Graciaadmitted that per instruction of Col. Matillano he went down to EurocarSales Building from Antipolo to stay guard there.

His manifestation of innocence of those items and what he has been guarding in thatoffice is not credible for: (a) he was a former military personnel; (b) at the birthday partyof Col. Matillano on November 30, 1989 many soldiers and ex-soldiers were presentwhich self-evidently discloses that De Gracia, in the company of his boss, was still verymuch at home and constantly in touch with soldiers and the armed rebellion of November30, 1989 to December 8 or 9, 1989 was a military coup d' etat; (c) it appears that he isthe only person tasked with caretaking (sic) there in the Matillano office, which shows thathe is a highly trusted right-hand man of Col. Matillano; and (d) as heretofore discussed,De Gracia was earlier seen with some men who fired upon a car of the AFP intelligence

agents.25

Presidential Decree No. 1866 imposes the death penalty where the illegal possession of

firearms and ammunition is committed in furtherance of rebellion. At the time theoffense charged in this case was committed under the governance of that law, theimposition of the death penalty was proscribed by the Constitution. Consequently,appellant De Gracia could only be sentenced to serve the penalty of reclusionperpetuawhich was correctly meted out by the trial court, albeit with an erroneousrecommendation in connection therewith.

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

SO ORDERED.

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


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Manila

EN BANC

G.R. No. L-69401 June 23, 1987

RIZAL ALIH, NASIM ALIH, AISAN ALIH, MIJAL ALIH, OMAR ALIH, EDRISMUKSAN, MULSIDI WARADIL, BILLY ASMAD RAMSID ASALI, BANDING USMAN,ANGGANG HADANI, WARMIKHAN HAPA, GABRAL JIKIRI, ALLAN TAN,MUJAHIRIN MARAJUKI, KENNEDY GONZALES, URDUJA ALIH, MERLA ALIH, andNURAISA ALIH VDA DE FEROLINO, petitioners,vs.MAJOR GENERAL DELFIN C. CASTRO, IN HIS CAPACITY AS COMMANDERSOUTHCOM AND REGIONAL UNIFIED COMMAND, REGION IX, ZAMBOANGA

CITY, COLONEL ERNESTO CALUPIG, IN HIS CAPACITY AS COMMANDINGOFFICER OF THE SPECIAL FORCES GROUP (AIRBORNE) AND INTERNALDEFENSE COMMAND, OTHERWISE KNOWN AS IdC MAJOR ARNOLD BLANCO INHIS CAPACITY AS COMMANDING OFFICER OF THE PHILIPPINE MARINES AND1ST LIEUTENANT DARWIN GUERRA IN HIS CAPACITY AS ACTS SUPERVISOR,INTERNAL DEFENSE COMMAND, ARMED FORCES OF THEPHILIPPINES, respondents.

CRUZ, J.:

On November 25, 1984, a contingent of more than two hundred Philippine marines andelements of the home defense forces raided the compound occupied by the petitionersat Gov. Alvarez street, Zamboanga City, in search of loose firearms, ammunition andother explosives. 1

The military operation was commonly known and dreaded as a "zona," which was notunlike the feared practice of the kempeitaiduring the Japanese Occupation of roundingup the people in a locality, arresting the persons fingered by a hooded informer, andexecuting them outright (although the last part is not included in the modernrefinement).

The initial reaction of the people inside the compound was to resist the invasion with aburst of gunfire. No one was hurt as presumably the purpose was merely to warn theintruders and deter them from entering. Unfortunately, as might be expected in incidentslike this, the situation aggravated soon enough. The soldiers returned fire and a bloodyshoot-out ensued, resulting in a number of casualties. 2


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The besieged compound surrendered the following morning, and sixteen maleoccupants were arrested, later to be finger-printed, paraffin-tested and photographedover their objection. The military also inventoried and confiscated nine M16 rifles, oneM14 rifle, nine rifle grenades, and several rounds of ammunition found in the premises. 3

On December 21, 1984, the petitioners came to this Court in a petition for prohibitionand mandamuswith preliminary injunction and restraining order. Their purpose was torecover the articles seized from them, to prevent these from being used as evidenceagainst them, and to challenge their finger-printing, photographing and paraffin-testingas violative of their right against self-incrimination. 4

The Court, treating the petition as an injunction suit with a prayer for the return of thearticles alleged to have been illegally seized, referred it for hearing to Judge Omar U.

Amin of the regional trial court, Zamboanga City. 5After receiving the testimonial anddocumentary evidence of the parties, he submitted the report and recommendations onwhich this opinion is based. 6

The petitioners demand the return of the arms and ammunition on the ground that theywere taken without a search warrant as required by the Bill of Rights. This is confirmedby the said report and in fact admitted by the respondents, "but with avoidance. 7

Article IV, Section 3, of the 1973 Constitution, which was in force at the time of theincident in question, provided as follows:

Sec. 3. The right of the people to be secure in their persons, houses,papers, and effects against unreasonable searches and seizures ofwhatever nature and for any purpose shall not be violated, and no search

warrant or warrant of arrest shall issue except upon probable cause to bedetermined by the judge, or such other responsible officer as may beauthorized by law, after examination under oath or affirmation of thecomplainant and the witnesses he may produce, and particularlydescribing the place to be searched, and the persons or things to beseized.

It was also declared in Article IV, Section 4(2) that-

Sec. 4(2) Any evidence obtained in violation of this or the precedingsection shall be inadmissible for any purpose in any proceeding.

The respondents, while admitting the absence of the required such warrant, sought tojustify their act on the ground that they were acting under superior orders. 8 There wasalso the suggestion that the measure was necessary because of the aggravation of thepeace and order problem generated by the assassination of Mayor Cesar Climaco. 9

Superior orders" cannot, of course, countermand the Constitution. The fact that thepetitioners were suspected of the Climaco killing did not excuse the constitutional short-


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cuts the respondents took. As eloquently affirmed by the U.S. Supreme Court in Ex parteMilligan: 10

The Constitution is a law for rulers and people, equally in war and inpeace, and covers with the shield of its protection all classes of men, at alltimes and under all circumstances. No doctrine, involving more perniciousconsequences, was ever invented by the wit of man than that any of itsprovisions can be suspended during any of the great exigencies ofgovernment.

The precarious state of lawlessness in Zamboanga City at the time in question certainlydid not excuse the non-observance of the constitutional guaranty against unreasonablesearches and seizures. There was no state of hostilities in the area to justify, assumingit could, the repressions committed therein against the petitioners.

It is so easy to say that the petitioners were outlaws and deserved the arbitrarytreatment they received to take them into custody; but that is a criminal argument. It is

also fallacious. Its obvious flaw lies in the conclusion that the petitioners wereunquestionably guilty on the strength alone of unsubstantiated reports that they werestockpiling weapons.

The record does not disclose that the petitioners were wanted criminals or fugitives fromjustice. At the time of the "zona," they were merely suspected of the mayor's slaying andhad not in fact even been investigated for it. As mere suspects, they were presumedinnocent and not guilty as summarily pronounced by the military.

Indeed, even if were assumed for the sake of argument that they were guilty, they wouldnot have been any less entitled to the protection of the Constitution, which covers both

the innocent and the guilty. This is not to say, of course, that the Constitution coddlescriminals. What it does simply signify is that, lacking the shield of innocence, the guiltyneed the armor of the Constitution, to protect them, not from a deserved sentence, butfrom arbitrary punishment. Every person is entitled to due process. It is no exaggerationthat the basest criminal, ranged against the rest of the people who would condemn himoutright, is still, under the Bill of Rights, a majority of one.

If the respondents did not actually disdain the Constitution when they made their illegalraid, they certainly gave every appearance of doing so. This is truly regrettable for it wasincumbent on them, especially during those tense and tindery times, to encouragerather than undermine respect for the law, which it was their duty to uphold.

In acting as they did, they also defied the precept that "civilian authority is at all timessupreme over the military" so clearly proclaimed in the 1973 Constitution. 11 In theinstant case, the respondents simply by-passed the civil courts, which had the authorityto determine whether or not there was probable cause to search the petitioner'spremises. Instead, they proceeded to make the raid without a search warrant on theirown unauthorized determination of the petitioner's guilt.


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The respondents cannot even plead the urgency of the raid because it was in fact noturgent. They knew where the petitioners were. They had every opportunity to get asearch warrant before making the raid. If they were worried that the weapons inside thecompound would be spirited away, they could have surrounded the premises in themeantime, as a preventive measure. There was absolutely no reason at all why they

should disregard the orderly processes required by the Constitution and instead insiston arbitrarily forcing their way into the petitioner's premises with all the menace of amilitary invasion.

Conceding that the search was truly warrantless, might not the search and seizure benonetheless considered valid because it was incidental to a legal arrest? Surely not. Ifall the law enforcement authorities have to do is force their way into any house and thenpick up anything they see there on the ground that the occupants are resisting arrest,then we might as well delete the Bill of Rights as a fussy redundancy.

When the respondents could have easily obtained a search warrant from any of the

TEN civil courts then open and functioning in Zamboanga City, 12 they instead simplybarged into the beleaguered premises on the verbal order of their superior officers. Onecannot just force his way into any man's house on the illegal orders of a superior,however lofty his rank. Indeed, even the humblest hovel is protected from officialintrusion because of the ancient rule, revered in all free regimes, that a man's house ishis castle.

It may be frail; its roof may shake; the wind may enter; the rain may enter. But the King ofEngland may not enter. All the forces of the Crown dare not cross the threshold of theruined tenement. 13

If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection

with a crime about to be committed, being committed, or just committed, what was thatcrime? There is no allegation in the record of such a justification. Parenthetically, it maybe observed that under the Revised Rule 113, Section 5(b), the officer making thearrest must have personalknowledge of the ground therefor as stressed in the recentcase ofPeople v. Burgos.14

If follows that as the search of the petitioners' premises was violative of the Constitution,all the firearms and ammunition taken from the raided compound are inadmissible inevidence in any of the proceedings against the petitioners. These articles are "fruits ofthe poisonous tree. 15 As Judge Learned Hand observed, "Only in case the prosecutionwhich itself controls the seizing officials, knows that it cannotprofit by their wrong, will

the wrong be repressed. 16 Pending determination of the legality of such articles,however, they shall remain in custodia legis, subject to such appropriate disposition asthe corresponding courts may decide. 17

The objection to the photographing, fingerprinting and paraffin-testing of the petitionersdeserves slight comment. The prohibition against self-incrimination applies totestimonial compulsion only. As Justice Holmes put it in Holt v. United States, 18 "Theprohibition of compelling a man in a criminal court to be a witness against himself is a


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prohibition of the use of physical or moral compulsion to extort communications fromhim, not an exclusion of his body as evidence when it may be material."

The fearful days of hamleting salvaging, "zona" and other dreaded operations shouldremain in the past, banished with the secret marshals and their covert license to kill

without trial. We must be done with lawlessness in the name of law enforcement. Thosewho are supposed to uphold the law must not be the first to violate it. As Chief JusticeClaudio Teehankee stressed in his concurring opinion in Lacanilao v. De Leon, 19 "It istime that the martial law regime's legacy of the law of force be discarded and that therebe a return to the force and rule of law."

All of us must exert efforts to make our country truly free and democratic, where everyindividual is entitled to the full protection of the Constitution and the Bill of Rights canstand as a stolid sentinel for all, the innocent as well as the guilty, including the basestof criminals.

WHEREFORE, the search of the petitioners' premises on November 25, 1984, is herebydeclared ILLEGAL and all the articles seized as a result thereof are inadmissible inevidence against the petitioners in any proceedings. However, the said articles shallremain in custodia legispending the outcome of the criminal cases that have been ormay later be filed against the petitioners.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras,Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

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