6 Laguio Chua

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G.R. No. 128587             March 16, 2007

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

D E C I S I O N

GARCIA, J.:

On pure questions of law, petitioner People of the Philippines has directly come to this Court via this petition for review on certiorari to nullify and set aside the Resolution1 dated 13 March 1997 of the Regional Trial Court of Manila, Branch 18, in Criminal Case Nos. 96-149990 to 96-149992, entitled People of the Philippines v. Lawrence Wang y Chen, granting private respondent Lawrence C. Wang’s Demurrer to Evidence and acquitting him of the three (3) charges filed against him, namely: (1) Criminal Case No. 96-149990 for Violation of Section 16, Article III in relation to Section 2(e)(2), Article I of Republic Act (R.A.) No. 6425 (Dangerous Drugs Act); (2) Criminal Case No. 96-149991 for Violation of Presidential Decree No. 1866 (Illegal Possession of Firearms); and (3) Criminal Case No. 96-149992 for Violation of Comelec Resolution No. 2828 in relation to R.A. No. 7166 (COMELEC Gun Ban).

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

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

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

Contrary to law.2

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

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

Contrary to law. 3

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

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

Contrary to law. 4

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

The pertinent facts are as follows:

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

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

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

On 6 December 1996, the prosecution rested its case and upon motion, accused Wang was granted 25 days from said date within which to file his intended Demurrer to Evidence.9 On 19 December 1996, the prosecution filed a Manifestation10 to the effect that it had rested its case only in so far as the charge for Violation of the Dangerous Drugs Act in Criminal Case No. 96-149990 is concerned, and not as regards the two cases for Illegal Possession of Firearms (Crim. Case No. 96-149991) and Violation of the Comelec Gun Ban (Crim. Case No. 96-149992). Accordingly, trial continued.

On 9 January 1997, Wang filed his undated Demurrer to Evidence,11 praying for his acquittal and the dismissal of the three (3) cases against him for lack of a valid arrest and search warrants and the inadmissibility of the prosecution’s evidence against him. Considering that the prosecution has not yet filed its Opposition to the demurrer, Wang filed an Amplification12

to his Demurrer of Evidence on 20 January 1997. On 12 February 1997, the prosecution filed its Opposition13 alleging that the warrantless search was legal as an incident to the lawful arrest and that it has proven its case, so it is now time for the defense to present its evidence.

On 13 March 1997, the respondent judge, the Hon. Perfecto A.S. Laguio, Jr., issued the herein assailed Resolution14

granting Wang’s Demurrer to Evidence and acquitting him of all charges for lack of evidence, thus:

WHEREFORE, the accused's undated Demurrer to Evidence is hereby granted; the accused is acquitted of the charges against him for the crimes of Violation of Section 16, Article III of the Dangerous Drugs Act, Illegal Possession of Firearms, and Violation of Comelec Gun Ban, for lack of evidence; the 32 bags of shabu with a total weight of 29.2941 kilograms and the two unlicensed pistols, one AMT Cal. .380 9mm and one Daewoo Cal. 9mm. are ordered confiscated in favor of the government and the branch clerk is directed to

turn over the 32 bags of shabu to the Dangerous Drugs Board in Intramuros, Manila, and the two firearms to the Firearms and Explosive Units, PNP, Camp Crame, Quezon City, for proper disposition, and the officer-in-charge of PARAC, Department of Interior and Local Government, is ordered to return the confiscated amount of P650,000.00 to the accused, and the confiscated BMW car to its registered owner, David Lee. No costs.

SO ORDERED.

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

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

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XXX IN HOLDING, IN EFFECT, THAT A WARRANTLESS SEARCH IS CONSTITUTIONALLY ALLOWABLE AND CAN ONLY BE VALID AS AN INCIDENT TO A LAWFUL ARREST.

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

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XXX IN NOT DECLARING THE ACCUSED AS HAVING WAIVED, AS A RESULT OF HIS SUBMISSION AND FAILURE TO PROTEST THE SEARCH AND HIS ARREST, HIS CONSTITUTIONAL RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE AND HIS OBJECTION TO THE ADMISSION OF THE EVIDENCE SEIZED.

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

In its Resolution16 of 9 July 1997, the Court, without giving due course to the petition, required the public and private respondents to comment thereon within ten days from notice.

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Private respondent Wang filed his comment17on 18 August 1997.

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

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

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

First off, it must be emphasized that the present case is an appeal filed directly with this Court via a petition for review on certiorari under Rule 45 in relation to Rule 41, Section 2, paragraph (c) of the Rules of Court raising only pure questions of law, ordinary appeal by mere filing of a notice of appeal not being allowed as a mode of appeal directly to this Court. Then, too, it bears stressing that the right to appeal is neither a natural right nor a part of due process, it being merely a statutory privilege which may be exercised only in the manner provided for by law (Velasco v. Court of Appeals21). Although Section 2, Rule 122 of the Rules on Criminal Procedure states that any party may appeal, the right of the People to appeal is, in the very same provision, expressly made subject to the prohibition against putting the accused in double jeopardy. It also basic that appeal in criminal cases throws the whole records of the case wide open for review by the appellate court, that is why any appeal from a judgment of acquittal necessarily puts the accused in double jeopardy. In effect, the very same Section 2 of Rule 122 of the Rules on Criminal Procedure, disallows appeal by the People from judgments of acquittal.

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

The celebrated case of Galman v. Sandiganbayan22 presents one exception to the rule on double jeopardy, which is, when the prosecution is denied due process of law:

No court whose Presiding Justice has received "orders or suggestions" from the very President who by an amendatory decree (disclosed only at the hearing of oral arguments on November 8, 1984 on a petition challenging the referral of the Aquino-Galman murder cases to the Tanodbayan and Sandiganbayan instead of to a court martial, as mandatorily

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

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

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

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

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

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

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

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

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

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

In our jurisdiction, the finality-of-acquittal doctrine as a safeguard against double jeopardy faithfully adheres to the principle first enunciated in Kepner v. United States. In this case, verdicts of acquittal are to be regarded as absolutely final and irreviewable. The cases of United States v. Yam Tung Way, People v. Bringas, Gandicela v. Lutero, People v. Cabarles, People v. Bao, to name a few, are illustrative cases.

The fundamental philosophy behind the constitutional proscription against double jeopardy is to afford the defendant, who has been acquitted, final repose and safeguard him from government oppression through the abuse of criminal processes. As succinctly observed in Green v. United States "(t)he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty." (Underscoring supplied)

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

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

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

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

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

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sufficient evidence to sustain the indictment or support a verdict of guilt.

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

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

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

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

By this time, it is settled that the appellate court may review dismissal orders of trial courts granting an accused’s demurrer

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

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

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

Appeal and Certiorari Distinguished

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

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

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

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

As to the Manner of Filing. Over an appeal, the CA exercises its appellate jurisdiction and power of review. Over a certiorari, the higher court uses its original jurisdiction in accordance with its power of control and supervision over the proceedings of lower courts. An appeal is thus a continuation of the original suit, while a petition for certiorari is an original and independent action that was not part of the trial that had

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resulted in the rendition of the judgment or order complained of. The parties to an appeal are the original parties to the action. In contrast, the parties to a petition for certiorari are the aggrieved party (who thereby becomes the petitioner) against the lower court or quasi-judicial agency, and the prevailing parties (the public and the private respondents, respectively).

As to the Subject Matter. Only judgments or final orders and those that the Rules of Court so declared are appealable. Since the issue is jurisdiction, an original action for certiorari may be directed against an interlocutory order of the lower court prior to an appeal from the judgment; or where there is no appeal or any plain, speedy or adequate remedy.

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

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

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

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

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

Even assuming that the Court may treat an "appeal" as a special civil action of certiorari, which definitely this Court has the power to do, when there is a clear showing of grave abuse of discretion committed by the lower court, the instant

petition will nevertheless fail on the merits as the succeeding discussion will show.

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

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

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

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

Ditto on the 32 bags of shabu and the other unlicensed Daewoo Cal. 9mm Pistol with magazine that were found and seized from the car. The contraband items in the car were not in plain view. The 32 bags of shabu were in the trunk compartment, and the Daewoo handgun was underneath the

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driver’s seat of the car. The police officers had no information, or knowledge that the banned articles were inside the car, or that the accused had placed them there. The police officers searched the car on mere suspicion that there was shabu therein.

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

POLICE INSPECTOR CIELITO CORONEL’S TESTIMONY

"PROSECUTOR TO WITNESS: Direct-Examination

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

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

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

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

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

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

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

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

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

A. We waited for him.

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

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

Q. What about your other companions where were they?

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

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

A. That was when the accused arrived.

Q. How many of your approached him.

A. Inspector Margallo, myself and two other operatives.

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

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

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

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

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

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

Q. Then what happened?

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

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

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

Q. Did you come to know the results?

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

ATTY. LOZANO TO WITNESS: CROSS

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

A. Yes, Sir.

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

8

A. Yes, Sir.

xxx xxx xxx

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

A. Yes, Sir.

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

A. I supposed, Sir.

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

A. Yes, Sir.

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

A. Yes, Sir.

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

A. Yes, Sir.

xxx xxx xxx

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

A. He was outside, Sir.

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

A. He was likewise outside, Sir.

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

A. Yes, Sir.

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

A. Yes, Sir.

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

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

SPO3 REYNALDO CRISTOBAL’S TESTIMONY

PROSECUTOR TO WITNESS: DIRECT EXAMINATION

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

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

xxx xxx xxx

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

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

xxx xxx xxx

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

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

COURT: Where did you arrest these people?

A They were arrested in Metro Manila also.

COURT: The same date?

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

COURT: Why were these people, arrested?

A. For violation of R.A. 6425.

COURT: How were they arrested?

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

COURT: So, this involved a series of operation?

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

9

COURT: They were arrested for what, for possession?

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

COURT: Whose name did they mention:

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

COURT: So there was an entrapment?

A. Yes, Your Honor.

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

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

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

A. Yes, Your Honor.

COURT: What was the information?

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

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

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

COURT: When?

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

COURT: At what place?

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

xxx xxx xxx

COURT: What happened during the stake out?

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

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

A. Probably, Sir.

COURT: What did you do?

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

xxx xxx xxx

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

A. We approached him.

COURT: What happened when you approached him?

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

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

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

CLARIFICATORY QUESTIONING OF SPO3 CRISTOBAL BY THE COURT

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

A: Yes, Sir.

xxx xxx xxx

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

A: Yes, Sir.

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

A: Yes, Sir.

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

A: Yes, Sir.

xxx xxx xxx

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

A: Yes, Sir.

Q: You were present while they were investigated?

A: I was the one whom investigated them.

xxx xxx xxx

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

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

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

A: On the 17th.

xxx xxx xxx

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

A: No, Sir.

xxx xxx xxx

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

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

xxx xxx xxx

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

A: No, Sir. It cannot be seen.

Q: It was concealed?

A: Yes, Sir.

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

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

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

A: None, Sir.

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

A: No, Sir.

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

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

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

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

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

The conflicting versions as to whether the arrest preceded the search or vice versa, is a matter of credibility of evidence. It entails appreciation of evidence, which may be done in an appeal of a criminal case because the entire case is thrown open for review, but not in the case of a petition for certiorari where the factual findings of the trial court are binding upon the Court. Since a dismissal order consequent to a demurrer to evidence is not subject to appeal and reviewable only by certiorari, the factual finding that the arrest preceded the

11

search is conclusive upon this Court. The only legal basis for this Court to possibly reverse and set aside the dismissal order of the trial court upon demurrer to evidence would be if the trial court committed grave abuse of discretion in excess of jurisdiction when it ruled that there was no legal basis to lawfully effect a warrantless arrest.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

12

continuing objection to the validity of the warrantless arrest made of record during the arraignment bolsters Wang’s claim that he resisted the warrantless arrest and search.

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

WHEREFORE, the instant petition is DENIED.

SO ORDERED.

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14

G.R. No. L-69803 October 8, 1985

CYNTHIA D. NOLASCO, MILA AGUILAR-ROQUE and WILLIE C. TOLENTINO, petitioners, vs.HON. ERNANI CRUZ PAÑO, Executive Judge, Regional Trial Court of Quezon City; HON. ANTONIO P. SANTOS, Presiding Judge, Branch XLII, Metropolitan Trial Court of Quezon City: HON. SERGIO F. APOSTOL, City Fiscal, Quezon City; HON. JUAN PONCE ENRILE, LT. GEN. FIDEL RAMOS and COL. JESUS ALTUNA, respondents.

Jose W .Diokno, Joker P. Arroyo, Rene A. V. Sarmiento, Dan Malabonga and Cesar Maravilla for petitioners.

MELENCIO-HERRERA, J.:

The facts before the Court in these Certiorari, Prohibition, and mandamus proceedings will be briefly stated. The three petitioners will be referred to through their surnames of NOLASCO, AGUILAR-ROQUE and TOLENTINO.

1. Prior to August 6, 1984 (hereinafter to be referred to without the year), AGUILAR-ROQUE was one of the accused of Rebellion in Criminal Case No. MC-25-113 of Military Commission No. 25, both cases being entitled "People of the Philippines vs. Jose Ma. Sison, et al." She was then still at large.

2. At 11:30 A.M. on August 6th, AGUILAR-ROQUE and NOLASCO were arrested by a Constabulary Security Group (CSG) at the intersection of Mayon Street and P. Margall Street, Quezon City. The stated time is an allegation of petitioners, not denied by respondents. The record does not disclose that a warrant of arrest had previously beeen issued against NOLASCO.

3. At 12:00 N. on August 6th, elements of the CSG searched the premises at 239-B Mayon Street, Quezon City. The stated time is an allegation of petitioners, not specifically denied by respondents. In their COMMENT, however, respondents have alleged that the search was conducted "late on the same day"; that is late on august 6th.

4. On August 6th, at around 9:00 A.M., Lt. Col. Virgilio G. Saldajeno of the CSG, applied for a Search Warrant from respondent Hon. Ernani Cruz Paño, Executive Judge of the Regional Trial Court in Quezon City, to be served at No. 239-B Mayon Street, Quezon City, determined tyo be the leased residence of AGUILAR-ROQUE, after almost a month of "round the clock surveillance" of the premises as a "suspected underground house of the CPP/NPA." AGUILAR-ROQUE has been long wanted by the military for being a high ranking officer of the Communist Party of the Philippines, particularly connected with the MV Karagatan/Doña Andrea cases.

In connection with the Search Warrant issued, the following may be stated:

(a) The Search Warrant was issued in proceedings entitled "People of the Philippines vs. Mila Aguilar-Roque, Accused, Search Warrant No. 80- 84 for rebellion" (the SEARCH WARRANT CASE). Judge Panos Court was Branch 88.

(b) It does not appear from the records before us that an application in writing was submitted by Lt. Col. Saldajeno to Judge Paño.

(c) According to the record, Lt. Col. Saldajeno and his witness S/A Dionicio A. Lapus, were examined under oath by Judge Paño but only the deposition of S/A Lapus has been submitted to us. The latter deposed that to his personal knowledge, there were kept in the premises to be searched records, documents and other papers of the CPP/NPA and the National Democratic Front, including support money from foreign and local sources intended to be used for rebellion. 1

5. In connection with the search made at 12:00 N. of August 6th the following may be stated:

(a) TOLENTINO was a person then in charge of the premises. He was arrested by the searching party presumably without a warrant of arrest.

(b) The searching party seized 428 documents and written materials, 2 and additionally a portable typewriter, and 2 wooden boxes, making 431 items in all. 3

(c) According to the Return, submitted in the SEARCH WARRANT CASE on August 10th, 4 the search was made in the presence of Dra. Marciana Galang, owner of the premises, and of two (2) Barangay Tanods. No mention was made that TOLENTINO was present. The list of the 428 articles and documents attached to the Return was signed by the two Barangay Tanods, but not by Dra. Galang.

6. (a) On August 10th, the three petitioners, AGUILAR-ROQUE, NOLASCO and TOLENTINO, were charged before the Quezon City Fiscal's Office (the CITY FISCAL, for short) upon complaint filed by the CSG against petitioners for "Subversion/Rebellion and/or Conspiracy to Commit Rebellion/Subversion."

(b) On August 13th, the CITY FISCAL filed an Information for Violation of Presidential Decree No. 33 (Illegal Possession of Subversive Documents) against petitioners before Branch 42 of the Metropolitan Trial Court of Quezon City (the SUBVERSIVE DOCUMENTS CASE), respondent Judge Antonio P. Santos, presiding.

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(c) On August 16th, CSG filed a Motion for Reconsideration with the CITY FISCAL, praying that AGUILAR-ROQUE and NOLASCO be charged with Subversion. The Motion was denied on November 16th.

7. (a) On September 10th, the CSG submitted an Amended Return in the SEARCH WARRANT CASE praying, inter alia, that the CSG be allowed to retain the seized 431 documents and articles, in connection with cases that are presently pending against Mila Aguilar Roque before the Quezon City Fiscal's Office and the court. 5

(b) On September 28th, petitioners were required by Judge Pano to comment on the Amended Return, which AGUILAR-ROQUE did on October 18th, raising the issue of the inadmissibility of any evidence obtained pursuant to the Search Warrant.

(c) On December 13, 1984, Judge Paño admitted the Amended Return and ruled that the seized documents "shall be subject to disposition of the tribunal trying the case against respondent."

8. (a) On December 12th, petitioners filed a Motion to Suppress in the SUBVERSIVE DOCUMENTS CASE, praying that such of the 431 items belonging to them be returned to them. It was claimed that the proceedings under the Search Warrant were unlawful. Judge Santos denied the Motion on January 7, 1985 on the ground that the validity of the Search Warrant has to be litigated in the SEARCH WARRANT CASE. He was apparently not aware of the Order of Judge Paño of December 13th issued in the SEARCH WARRANT CASE.

Hence, this Petition for Certiorari, Prohibition and mandamus to annul and set aside the (1) Search Warrant issued by respondent RTC Judge Paño; (2) his Order admitting the Amended Return and granting the Motion to Retain Seized Items; and (3) Order of respondent MTC Judge Santos denying petitioners' Motion to Suppress.

This Court, on February 12, 1985, issued a Temporary Restraining Order enjoining the respondents or their duly authorized representatives from introducing evidence obtained under the Search Warrant.

The PETITIONERS principally assert that the Search Warrant is void because it is a general warrant since it does not sufficiently describe with particularity the things subject of the search and seizure, and that probable cause has not been properly established for lack of searching questions propounded to the applicant's witness. The respondents, represented by the Solicitor General, contend otherwise, adding that the questions raised cannot be entertained in this present petition without petitioners first moving for the quashal of the disputed Search Warrant with the issuing Judge.

We find merit in the Petition.

Section 3, Article IV of the Constitution, guarantees 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. It also specifically provides that no Search Warrant shall issue except upon probable cause to be determined by the Judge or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized.

The disputed Search Warrant (No. 80-84) describes the personalities to be seized as follows:

Documents, papers and other records of the Communist Party of the Phihppines/New Peoples Army and/or the National Democratic Front, such as Minutes of the Party Meetings, Plans of these groups, Programs, List of possible supporters, subversive books and instructions, manuals not otherwise available to the public, and support money from foreign or local sources.

It is at once evident that the foregoing Search Warrant authorizes the seizure of personal properties vaguely described and not particularized. It is an all- embracing description which includes everything conceivable regarding the Communist Party of the Philippines and the National Democratic Front. It does not specify what the subversive books and instructions are; what the manuals not otherwise available to the public contain to make them subversive or to enable them to be used for the crime of rebellion. There is absent a definite guideline to the searching team as to what items might be lawfully seized thus giving the officers of the law discretion regarding what articles they should seize as, in fact, taken also were a portable typewriter and 2 wooden boxes. It is thus in the nature of a general warrant and infringes on the constitutional mandate requiring particular description of the things to be seized. In the recent rulings of this Court, search warrants of similar description were considered null and void for being too general. Thus:

Subversive documents, pamphlets, leaflets, books, and other publications to promote the objectives and purposes of the subversive organizations known as Movement for Free Philippines. Light-a-Fire Movement and April 6 Movement. 6

The things to be seized under the warrant issued by respondent judge were described as 'subversive documents, propaganda materials, FAs, printing paraphernalia and all other subversive materials Such description hardly provided a definite guideline to the search team as to what articles might be lawfully seized thereunder. Said description is no different from if not

16

worse than, the description found in the search warrants in "Burgos, et al. v. the Chief of Staff"which this Court declared null and void for being too general. 7

In the case at bar, the search warrant issued by respondent judge allowed the seizure of printed copies of the Philippine Times, manuscripts/drafts of articles for publication, newspaper dummies subversive documents, articles, etc., and even typewriters, duplicating machines, mimeographing and tape recording machines. Thus, the language used is so all embracing as to include all conceivable records and equipment of petitioner regardless of whether they are legal or illegal. The search warrant under consideration was in the nature of a general warrant which is constitutionally objectionable. 8

The lack of particularization is also evident in the examination of the witness presented by the applicant for Search Warrant.

Q Mr. Dionicio Lapus, there is an application for search warrant filed by Lt. Col. Virgilio Saldajeno and the Court would like to know if you affirm the truth of your answer in this deposition?

(The deposition instead)—

A Yes, sir,

Q How long did it take you for the surveillance?

A Almost a month, sir.

Q Are you a lawyer, Mr. Lapus?

A No, Your Honor, but I was a student of law.

Q So, you are more or less familiar with the requisites of the application for search warrant?

A Yes, Your Honor.

Q How did you come to know of the person of Mila Aguilar-Roque?

A Because of our day and night surveillance, Your Honor, there were so many suspicious persons with documents.

Q What kind of documents do you refer to?

A Documents related to the Communist Party of Philippines and New People's Army.

Q What else?

A Conferences of the top ranking officials from the National Democratic Front, Organization of the Communist Party of the Philippines ...

Q And may include what else?

A Other papers and documents like Minutes of the Party Meetings, Plans of these groups, Programs, List of possible supporters, subversive books and instructions, manuals not otherwise available to the public and support money from foreign and local sources. 9

The foregoing questions propounded by respondent Executive Judge to the applicant's witness are not sufficiently searching to establish probable cause. The "probable cause" required to justify the issuance of a search warrant comprehends such facts and circumstances as will induce a cautious man to rely upon them and act in pursuant thereof. 10 Of the 8 questions asked, the 1st, 2nd and 4th pertain to Identity. The 3rd and 5th are leading not searching questions. The 6th, 7th and 8th refer to the description of the personalities to be seized, which is Identical to that in the Search Warrant and suffers from the same lack of particularity. The examination conducted was general in nature and merely repetitious of the deposition of said witness. Mere generalization will not suffice and does not satisfy the requirements of probable cause upon which a warrant may issue. 11

Respondents claim, however, that the proper forum for questioning the illegality of a Search Warrant is with the Court that issued it instead of this original, independent action to quash. The records show, however, that petitioners did raise that issue in the SEARCH WARRANT CASE in their Comment, dated October 18, 1984. In fact, they already questioned the admissibility of the evidence obtained under the Search Warrant, even during the inquest investigation on August 10, 1984. And in the SUBVERSIVE DOCUMENTS CASE, they filed a Motion to Suppress on December 12, 1984 claiming that the proceedings under the Search Warrant were unlawful. Substantially, therefore, while not denominated as a motion to quash, petitioners had questioned the legality of the Search Warrant.

Parenthetically, it strikes the Court that the pendency of the SEARCH WARRANT CASE and of the SUBVERSIVE DOCUMENTS CASE before two different Courts is not conducive to an orderly administration of justice. It should be advisable that, whenever a Search Warrant has been issued by one Court, or Branch, and a criminal prosecution is initiated in another Court, or Branch, as a result of the service of the Search Warrant, the SEARCH WARRANT CASE should be consolidated with the criminal case for orderly procedure. The later criminal case is more substantial than the Search Warrant proceeding, and the Presiding Judge in the criminal case should have the right to act on petitions to exclude evidence unlawfully obtained.

17

Notwithstanding the irregular issuance of the Search Warrant and although, ordinarily, the articles seized under an invalid search warrant should be returned, they cannot be ordered returned in the case at bar to AGUILAR-ROQUE. Some searches may be made without a warrant. Thus, Section 12, Rule 126, Rules of Court, explicitly provides:

Section 12. Search without warrant of person arrested.—A person charged with an offense may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense.

The provision is declaratory in the sense that it is confined to the search, without a search warrant, of a person who had been arrested. It is also a general rule that, as an incident of an arrest, the place or premises where the arrest was made can also be search without a search warrant. In this latter case, "the extent and reasonableness of the search must be decided on its own facts and circumstances, and it has been stated that, in the application of general rules, there is some confusion in the decisions as to what constitutes the extent of the place or premises which may be searched. 12 "What must be considered is the balancing of the individual's right to privacy and the public's interest in the prevention of crime and the apprehension of criminals." 13

Considering that AGUILAR-ROQUE has been charged with Rebellion, which is a crime against public order; that the warrant for her arrest has not been served for a considerable period of time; that she was arrested within the general vicinity of her dwelling; and that the search of her dwelling was made within a half hour of her arrest, we are of the opinion that in her respect, the search at No. 239-B Mayon Street, Quezon City, did not need a search warrant; this, for possible effective results in the interest of public order.

Such being the case, the personalities seized may be retained. by CSG, for possible introduction as evidence in the Rebellion Case, leaving it to AGUILAR-ROQUE to object to their relevance and to ask Special Military Commission No.1 to return to her any and all irrelevant documents and articles.

WHEREFORE, while Search Warrant No. 80-84 issued on August 6, 1984 by respondent Executive Judge Ernani Cruz Paño is hereby annulled and set aside, and the Temporary Restraining Order enjoining respondent from introducing evidence obtained pursuant to the Search Warrant in the Subversive Documents case hereby made permanent, the, personalities seized may be retained by the Constabulary Security Group for possible introduction as evidence in Criminal Case No. SMC-1-1, pending before Special Military commission No. 1, without prejudice to petitioner Mila Aguilar-Roque objecting to their relevance and asking said Commission to return to her any and all irrelevant documents and articles.

SO ORDERED.

18

G.R. No. 133917       February 19, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.NASARIO MOLINA y MANAMA @ "BOBONG" and GREGORIO MULA y MALAGURA @ "BOBOY", accused-appellants.

YNARES-SANTIAGO, J.:

To sanction disrespect and disregard for the Constitution in the name of protecting the society from lawbreakers is to make the government itself lawless and to subvert those values upon which our ultimate freedom and liberty depend.1

For automatic review is the Decision2 of the Regional Trial Court of Davao City, Branch 17, in Criminal Case No. 37,264-96, finding accused-appellants Nasario Molina y Manamat alias "Bobong" and Gregorio Mula y Malagura alias "Boboy," guilty beyond reasonable doubt of violation of Section 8,3 of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended by Republic Act No. 7659,4 and sentencing them to suffer the supreme penalty of death.

The information against accused-appellants reads:

That on or about August 8, 1996, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, in conspiracy with each other, did then and there willfully, unlawfully and feloniously was found in their possession 946.9 grants of dried marijuana which are prohibited.

CONTRARY TO LAW.5

Upon arraignment on September 4, 1996, accused-appellants pleaded not guilty to the accusation against them.6 Trial ensued, wherein the prosecution presented Police Superintendent Eriel Mallorca, SPO1 Leonardo Y. Pamplona, Jr., and SPO1 Marino S. Paguidopon, Jr. as witnesses.

The antecedent facts are as follows:

Sometime in June 1996, SPO1 Marino Paguidopon, then a member of the Philippine National Police detailed at Precinct No. 3, Matina, Davao City, received an information regarding the presence of an alleged marijuana pusher in Davao City.7

The first time he came to see the said marijuana pusher in person was during the first week of July 1996. SPO1 Paguidopon was then with his informer when a motorcycle passed by. His informer pointed to the motorcycle driver, accused-appellant Mula, as the pusher. As to accused-appellant Molina, SPO1 Paguidopon had no occasion to see him before the arrest. Moreover, the names and addresses of the accused- appellants came to the knowledge of SPO1 Paguidopon only after they were arrested.8

At about 7:30 in the morning of August 8, 1996, SPO1 Paguidopon received an information that the alleged pusher will be passing at NHA, Ma- a, Davao City any time that morning.9 Consequently, at around 8:00 A.M. of the same day, he called for assistance at the PNP, Precinct No. 3, Matina, Davao City, which immediately dispatched the team of SPO4 Dionisio Cloribel (team leader), SPO2 Paguidopon (brother of SPO1 Marino Paguidopon), and SPO1 Pamplona, to proceed to the house of SPO1 Marino Paguidopon where they would wait for the alleged pusher to pass by.10

At around 9:30 in the morning of August 8, 1996, while the team were positioned in the house of SPO1 Paguidopon, a "trisikad" carrying the accused-appellants passed by. At that instance, SPO1 Paguidopon pointed to the accused-appellants as the pushers. Thereupon, the team boarded their, vehicle and overtook the "trisikad."11 SPO1 Paguidopon was left in his house, thirty meters from where the accused-appellants were accosted.12

The police officers then ordered the "trisikad" to stop. At that point, accused-appellant Mula who was holding a black bag handed the same to accused-appellant Molina. Subsequently, SPO1 Pamplona introduced himself as a police officer and asked accused-appellant Molina to open the bag.13 Molina replied, "Boss, if possible we will settle this."14 SPO1 Pamplona insisted on opening the bag, which revealed dried marijuana leaves inside. Thereafter; accused-appellants Mula and Molina were handcuffed by the police officers.15

On December 6, 1996, accused-appellants, through counsel, jointly filed a Demurrer to Evidence, contending that the marijuana allegedly seized from them is inadmissible as evidence for having been obtained in violation of their constitutional right against unreasonable searches and seizures.16 The demurrer was denied by the trial court.17 A motion for reconsideration was filed by accused-appellants, but this was likewise denied. Accused-appellants waived presentation of evidence and opted to file a joint memorandum.

On April 25, 1997, the trial court rendered the assailed decision,18 the decretal portion of which reads:

WHEREFORE, finding the evidence of the prosecution alone without any evidence from both accused who waived presentation of their own evidence through their counsels, more than sufficient to prove the guilt of both accused of the offense charged beyond reasonable doubt, pursuant to Sec. 20, sub. par. 5 of Republic Act 7659, accused NASARIO MOLINA and GREGORIO MULA, are sentenced to suffer a SUPREME PENALTY OF DEATH through lethal injection under Republic Act 8176, to be effected and implemented as therein provided for by law, in relation to Sec. 24 of Rep. Act 7659.

19

The Branch Clerk of Court of this court, is ordered to immediately elevate the entire records of this case with the Clerk of Court of the Supreme Court, Manila, for the automatic review of their case by the Supreme Court and its appropriate action as the case may be.

SO ORDERED.19

Pursuant to Article 47 of the Revised penal Code and Rule 122, Section 10 of the Rules of Court, the case was elevated to this Court on automatic review. Accused-appellants contend:

I.

THAT THE MARIJUANA IS IN ADMISSIBLE IN EVIDENCE FOR HAVING BEEN SEIZED IN VIOLATION OF APPELLANTS' CONSTITUTIONAL RIGHTS AGAINST UNREASONABLE, SEARCHES AND SEIZURES;

II.

THAT ASSUMING IT IS ADMISSIBLE IN EVIDENCE, THE GOVERNMENT HAS NOT OTHERWISE PROVED THEIR GUILT BEYOND REASONABLE DOUBT; AND

III.

THAT, FINALLY, ASSUMING THEIR GUILT HAS BEEN PROVED BEYOND REASONABLE DOUBT, THE IMPOSABLE PENALTY FOR VIOLATION OF SEC. 8 OF RA No. 7659 (sic), IN THE ABSENCE OF ANY AGGRAVATING CIRCUMSTANCE, IS LIFE IMPRISONMENT, NOT DEATH.20

The Solicitor General filed a Manifestation and MO1ion (In Lieu of Brief), wherein he prayed for the acquittal of both accused-appellants.

The fundamental law of the land mandates that searches and seizures be carried out in a reasonable fashion, that is, by virtue or on the strength of a search warrant predicated upon the existence of a probable cause. The pertinent provision of the Constitution provides:

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.21

Complementary to the foregoing provision is the exclusionary rule enshrined under Article III, Section 3, paragraph 2, which bolsters and solidifies the protection against unreasonable searches and seizures.22 Thus:

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

Without this rule, the right to privacy would be a form of words, valueless and undeserving of mention in a perpetual charter of inestimable human liberties; so too, without this rule, the freedom from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not to merit this Court's high regard as a freedom implicit in the concept of ordered liberty.23

The foregoing constitutional proscription, however, is not without exceptions. Search and seizure may be made without a warrant and the evidence obtained therefrom may be admissible in the following instances: (1) search incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of customs laws; (4) seizure of evidence in plain view; (5) when the accused himself waives his right against unreasonable searches and seizures;24 and (6) stop and frisk situations (Terry search).25

The first exception (search incidental to a lawful arrest) includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest which must precede the search. In this instance, the law requires that there be first a lawful arrest before a search can be made --- the process cannot be reversed.26 As a rule, an arrest is considered legitimate if effected with .a valid warrant of arrest. The Rules of Court, however, recognizes permissible warrantless arrests. Thus, a peace officer or a private person may, without 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 (arrest in flagrante delicto); (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 (arrest effected in hot pursuit); and (c) when the person to be arrested is a prisoner who has escaped from a penal establishment or a 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 ( arrest of escaped prisoners ).27

In the case at bar, the court a quo anchored its judgment of conviction on a finding that the warrantless arrest of accused-appellants, and the subsequent search conducted by the peace officers, are valid because accused-appellants were caught in flagrante delicto in possession of prohibited drugs.28 This brings us to the issue of whether or not the warrantless arrest, search and seizure in the present case fall within the recognized exceptions to the warrant requirement.

20

In People v. Chua Ho San,29 the Court held that in cases of in flagrante delicto arrests, a peace officer or a private person may, without a warrant, arrest a person when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. The arresting officer, therefore, must have personal knowledge of such fact or, as recent case law adverts to, personal knowledge of facts or circumstances convincingly indicative or constitutive of probable cause. As discussed in People v. Doria,30 probable cause means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest.

As applied to in flagrante delicto arrests, it is settled that "reliable information" alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, are not sufficient to constitute probable cause that would justify an in flagrante delicto arrest. Thus, in People v. Aminnudin,31 it was held that "the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the MN Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension."

Likewise, in People v. Mengote,32 the Court did not consider "eyes... darting from side to side :.. [while] holding ... [one's] abdomen", in a crowded street at 11:30 in the morning, as overt acts and circumstances sufficient to arouse suspicion and indicative of probable cause. According to the Court, "[b]y no stretch of the imagination could it have been inferred from these acts that an offense had just been committed, or was actually being committed or was at least being attempted in [the arresting officers'] presence." So also, in People v. Encinada,33 the Court ruled that no probable cause is gleanable from the act of riding a motorela while holding two plastic baby chairs.1âwphi1.nêt

Then, too, in Malacat v. Court of Appeals,34 the trial court concluded that petitioner was attempting to commit a crime as he was "`standing at the comer of Plaza Miranda and Quezon Boulevard' with his eyes 'moving very fast' and 'looking at every person that come (sic) nearer (sic) to them.'"35 In declaring the warrantless arrest therein illegal, the Court said:

Here, there could have been no valid in flagrante delicto ... arrest preceding the search in light of the lack of personal knowledge on the part of V u, the arresting officer, or an overt physical act, on the part

of petitioner, indicating that a crime had just been committed, was being committed or was going to be committed.36

It went on to state that –

Second, there was nothing in petitioner's behavior or conduct which could have reasonably elicited even mere suspicion other than that his eyes were "moving very fast" - an observation which leaves us incredulous since Yu and his teammates were nowhere near petitioner and it was already 6:30 p.m., thus presumably dusk. Petitioner and his companions were merely standing at the comer and were not creating any commotion or trouble...

Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was "discovered" "inside the front waistline" of petitioner, and from all indications as to the distance between Yu and petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not have been visible to Yu.37

Clearly, to constitute a valid in flagrante delicto arrest, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.38

In the case at bar, accused-appellants manifested no outward indication that would justify their arrest. In holding a bag on board a trisikad, accused-appellants could not be said to be committing, attempting to commit or have committed a crime. It matters not that accused-appellant Molina responded "Boss, if possible we will settle this" to the request of SPO1 Pamplona to open the bag. Such response which allegedly reinforced the "suspicion" of the arresting officers that accused-appellants were committing a crime, is an equivocal statement which standing alone will not constitute probable cause to effect an inflagrante delicto arrest. Note that were it not for SPO1 Marino Paguidopon (who did not participate in the arrest but merely pointed accused-appellants to the arresting officers), accused-appellants could not be the subject of any suspicion, reasonable or otherwise.

While SPO1 Paguidopon claimed that he and his informer conducted a surveillance of accused-appellant Mula, SPO1 Paguidopon, however, admitted that he only learned Mula's name and address after the arrest. What is more, it is doubtful if SPO1 Paguidopon indeed recognized accused-appellant Mula. It is worthy to note that, before the arrest, he was able to see Mula in person only once, pinpointed to him by his informer while they were on the side of the road. These circumstances could not have afforded SPO1 Paguidopon a closer look at accused-appellant Mula, considering that the

21

latter was then driving a motorcycle when, SPO1 Paguidopon caught a glimpse of him. With respect to accused-appellant Molina, SPO1 Paguidopon admitted that he had never seen him before the arrest.

This belies the claim of SPO1 Pamplona that he knew the name of accused-appellants even before the arrest, to wit –

"Q-       When you said that certain Mula handed a black bag to another person and how did you know that it was Mula who handed the black bag to another person?

A-       Because I have already information from Paguidopon, regarding Mula and Molina, when they pass by through the street near the residence of Paguidopon. He told that the one who is big one that is Gregorio Mula and the thin one is Nazario Molina"39

The aforecited testimony of SPO1 Pamplona, therefore, is entirely baseless SPO1 Pamplona could not have learned the name of accused-appellants from SPO1 Paguipodon because Paguipodon himself, who allegedly conducted the surveillance, was not even aware of accused-appellants' name and address prior to the arrest.

Evidently, SPO1 Paguidopon, who acted as informer of the arresting officers, more so the arresting officers themselves, could not have been certain of accused-appellants' identity, and were, from all indications, merely fishing for evidence at the time of the arrest.

Compared to People v. Encinada, the arresting officer in the said case knew appellant Encinada even before the arrest because of the latter's illegal gambling activities, thus, lending at least a semblance of validity on the arrest effected by the peace officers. Nevertheless, the Court declared in said case that the warrantless arrest and the consequent search were illegal, holding that "[t]he prosecution's evidence did not show any suspicious behavior when the appellant disembarked from the ship or while he rode the motorela. No act or fact demonstrating a felonious enterprise could be ascribed to appellant under such bare circumstances."40

Moreover, it could not be said that accused-appellants waived their right against unreasonable searches and seizure. Implied acquiescence to the search, if there was any, could not have been more than mere passive conformity given under intimidating or coercive circumstances and is thus considered no consent at all within the purview of the constitutional guarantee.41

Withal, the Court holds that the arrest of accused-appellants does not fall under the exceptions allowed by the rules. Hence, the search conducted on their person was likewise illegal. Consequently, the marijuana seized by the peace officers could not be admitted as evidence against accused-appellants,

and the Court is thus, left with no choice but to find in favor of accused-appellants.

While the Court strongly supports the campaign of the government against drug addiction and commends the efforts of our law-enforcement officers towards this drive, all efforts for the achievement of a drug-free society must not encroach on the fundamental rights and liberties of individuals as guaranteed in the Bill of Rights, which protection extends even to the basest of criminals.

WHEREFORE, the Decision of the Regional Trial Court of Davao City, Branch 17, in Criminal Case No. 37, 264-96, is REVERSED and SET ASIDE. For lack of evidence to establish their guilt beyond reasonable doubt, accused-appellants Nasario Molina y Manamat alias "Bobong" and Gregorio Mula y Malagura alias "Boboy", are ACQUITTED and ordered RELEASED from confinement unless they are validly detained for other offenses. No costs.

SO ORDERED.

22

G.R. Nos. 136066-67             February 4, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.BINAD SY CHUA, accused-appellant.

D E C I S I O N

YNARES-SANTIAGO, J.:

Accused-appellant Binad Sy Chua was charged with violation of Section 16, Article III of R.A. 6425, as amended by R.A. 7659, and for Illegal Possession of ammunitions in two separate Informations which read as follows:

Criminal Case No. 96-5071

That on or about the 21st day of September 1996, in the City of Angeles, 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 and under his control two (2) plastic bags containing Methamphetamine Hydrochloride (SHABU) weighing more or less two (2) kilos and one (1) small plastic bag containing Methamphetamine Hydrocloride weighing more or less fifteen (15) grams, which is a regulated drug, without any authority whatsoever.

Criminal Case No. 96-5132

That on or about the 21st day of September 1996, in the City of Angeles, 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 and under his control twenty (20) pieces of live .22 cal. ammunitions, without first having obtained a license or permit to possess or carry the same.

Accused-appellant pleaded "not guilty" on arraignment.1awphi1.nét The two cases were then jointly tried.

The prosecution presented three (3) witnesses, all members of the police force of Angeles City. Their testimonies can be synthesized as follows:

On September 21, 1996, at around 10:00 in the evening, SPO2 Mario Nulud and PO2 Emmeraldo Nunag received a report from their confidential informant that accused-appellant was about to deliver drugs that night at the Thunder Inn Hotel in Balibago, Angeles City. The informer further reported that accused-appellant distributes illegal drugs in different karaoke bars in Angeles City. On the basis of this lead, the PNP Chief of Angeles City, Col. Neopito Gutierrez, immediately formed a team of operatives composed of Major Bernardino, Insp. Tullao, Insp. Emmanuel Nunag, P02 Emmeraldo Nunag, SP01 Fernando Go, and some civilian assets, with SPO2 Mario

Nulud, as team investigator. The group of SPO2 Nulud, PO2 Nunag and the civilian informer positioned themselves across McArthur Highway near Bali Hai Restaurant, fronting Thunder Inn Hotel. The other group acted as their back up.

At around 11:45 in the evening, their informer pointed to a car driven by accused-appellant which just arrived and parked near the entrance of the Thunder Inn Hotel. After accused-appellant alighted from the car carrying a sealed Zest-O juice box, SPO2 Nulud and PO2 Nunag hurriedly accosted him and introduced themselves as police officers. As accused-appellant pulled out his wallet, a small transparent plastic bag with a crystalline substance protruded from his right back pocket. Forthwith, SPO2 Nulud subjected him to a body search which yielded twenty (20) pieces of live .22 caliber firearm bullets from his left back pocket. When SPO2 Nunag peeked into the contents of the Zest-O box, he saw that it contained a crystalline substance. SPO2 Nulud instantly confiscated the small transparent plastic bag, the Zest-O juice box, the twenty (20) pieces of .22 caliber firearm bullets and the car used by accused-appellant. Afterwards, SPO2 Nulud and the other police operatives who arrived at the scene brought the confiscated items to the office of Col. Guttierez at the PNP Headquarters in Camp Pepito, Angeles City.3

When Col. Gutierrez opened the sealed Zest-O juice box, he found 2 big plastic bags containing crystalline substances. The initial field test conducted by SPO2 Danilo Cruz at the PNP Headquarters revealed that the siezed items contained shabu.4

Thereafter, SPO2 Nulud together with accused-appellant brought these items for further laboratory examination to the Crime Laboratory at Camp Olivas, San Fernando, Pampanga. After due testing, forensic chemist S/Insp. Daisy Babor concluded that the crystalline substances yielded positive results for shabu. The small plastic bag weighed 13.815 grams while the two big plastic bags weighed 1.942 kilograms of shabu.5

Accused-appellant vehemently denied the accusation against him and narrated a different version of the incident.

Accused-appellant alleged that on the night in question, he was driving the car of his wife to follow her and his son to Manila. He felt sleepy, so he decided to take the old route along McArthur Highway. He stopped in front of a small store near Thunder Inn Hotel in Balibago, Angeles City to buy cigarettes and candies. While at the store, he noticed a man approach and examine the inside of his car. When he called the attention of the onlooker, the man immediately pulled out a .45 caliber gun and made him face his car with raised hands. The man later on identified himself as a policeman. During the course of the arrest, the policeman took out his wallet and instructed him to open his car. He refused, so the policeman took his car keys and proceeded to search his car. At this time, the police officer’s companions arrived at the scene in two cars. PO2 Nulud, who just arrived at the scene, pulled him away from his car in a nearby bank, while the others searched his car.1awphi1.nét

23

Thereafter, he was brought to the Salakot Police Station and was held inside a bathroom for about fifteen minutes until Col. Guttierez arrived, who ordered his men to call the media. In the presence of reporters, Col. Guttierez opened the box and accused-appellant was made to hold the box while pictures were being taken.6

Wilfredo Lagman corroborated the story of the accused-appellant in its material points. He testified that he witnessed the incident while he was conducting a routine security check around the premises of the Guess Building, near Thunder Inn Hotel.7

On September 15, 1998 the Regional Trial Court of Angeles City, Branch 59, rendered a decision,8 the dispositive portion of which reads:

WHEREFORE, the foregoing considered, judgement is hereby rendered as follows:

1. In Criminal Case No. 96-513 for Illegal Possession of Ammunitions, the accused is hereby acquitted of the crime charged for insufficiency of evidence.

2. In Criminal Case No. 96-507 for Illegal Possession of 1,955.815 grams of shabu, accused Binad Sy Chua is found GUILTY beyond reasonable doubt of the crime charge and is hereby sentenced to suffer the penalty of reclusion perpetua and to pay a fine of One Million (P1,000,000.00) Pesos.

SO ORDERED.9

Hence, the instant appeal where accused-appellant raised the following errors:

THE TRIAL COURT ERRED GRAVELY IN ITS FOLLOWING FINDINGS:

A. THE ARREST OF ACCUSED-APPELLANT BINAD SY CHUA WAS LAWFUL;

B. THE SEARCH OF HIS PERSON AND THE SUBSEQUENT CONFISCATION OF SHABU ALLEGEDLY FOUND ON HIM WERE CONDUCTED IN A LAWFUL AND VALID MANNER;

C. THE PROSECUTION EVIDENCE SUPPORTING THE CRIME CHARGED IS SUFICIENT TO PROVE THE GUILT OF THE ACCUSED-APPELLANT BEYOND REAONABLE DOUBT.10

Accused-appellant maintains that the warrantless arrest and search made by the police operatives was unlawful; that in the light of the testimony of SPO2 Nulud that prior to his arrest he has been under surveillance for two years, there was therefore

no compelling reason for the haste within which the arresting officers sought to arrest and search him without a warrant; that the police officers had sufficient information about him and could have easily arrested him. Accused-appellant further argues that since his arrest was null an void, the drugs that were seized should likewise be inadmissible in evidence since they were obtained in violation of his constitutional rights against unreasonable search and seizures and arrest.

Accused-appellant’s argument is impressed with merit.

Although the trial court’s evaluation of the credibility of witnesses and their testimonies is entitled to great respect and will not be disturbed on appeal, however, this rule is not a hard and fast one.

It is a time-honored rule that the assessment of the trial court with regard to the credibility of witnesses deserves the utmost respect, if not finality, for the reason that the trial judge has the prerogative, denied to appellate judges, of observing the demeanor of the declarants in the course of their testimonies. The only exception is if there is a showing that the trial judge overlooked, misunderstood, or misapplied some fact or circumstance of weight and substance that would have affected the case.11

In the case at bar, there appears on record some facts of weight and substance that have been overlooked, misapprehended, or misapplied by the trial court which casts doubt on the guilt of accused-appellant. An appeal in a criminal case opens the whole case for review and this includes the review of the penalty and indemnity imposed by the trial court.12 We are clothed with ample authority to review matters, even those not raised on appeal, if we find that their consideration is necessary in arriving at a just disposition of the case. Every circumstance in favor of the accused shall be considered.13

This is in keeping with the constitutional mandate that every accused shall be presumed innocent unless his guilt is proven beyond reasonable doubt.

First, with respect to the warrantless arrest and consequent search and seizure made upon accused-appellant, the court a quo made the following findings:

Accused was searched and arrested while in possession of regulated drugs (shabu). A crime was actually being committed by the accused and he was caught in flagrante delicto. Thus, the search made upon his personal effects x x x allow a warrantless search incident to a lawful arrest. x x x x

While it is true that the police officers were not armed with a search warrant when the search was made over the personal affects (sic) of the accused, however, under the circumstances of the case, there was sufficient probable cause for said officers to believe that accused was then and there committing a crime.

x x x x x x x x x

24

In the present case, the police received information that the accused will distribute illegal drugs that evening at the Thunder Inn Hotel and its vicinities. The police officer had to act quickly and there was no more time to secure a search warrant. The search is valid being akin to a "stop and frisk".14

A thorough review of the evidence on record belies the findings and conclusion of the trial court. It confused the two different concepts of a search incidental to a lawful arrest (in flagrante delicto) and of a "stop-and-frisk."

In Malacat v. Court of Appeals,15 we distinguished the concepts of a "stop-and-frisk" and of a search incidental to a lawful arrest, to wit:

At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a search incidental to a lawful arrest. These two types of warrantless searches differ in terms of the requisite quantum of proof before they may be validly effected and in their allowable scope.

In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used as a pretext for conducting a search. In this instance, the law requires that there first be arrest before a search can be made—the process cannot be reversed. At bottom, assuming a valid arrest, the arresting officer may search the person of the arrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and seize any money or property found which was used in the commission of the crime, or the fruit of the crime, or that which may be used as evidence, or which might furnish the arrestee with the means of escaping or committing violence.

x x x x x x x x x

We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited protective search of outer clothing for weapons," as laid down in Terry, thus:

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

Other notable points of Terry are that while probable cause is not required to conduct a "stop-and-frisk," it nevertheless holds that mere suspicion or a hunch will not validate a "stop-

and-frisk". A genuine reason must exist, in light of the police officer’s experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. Finally, a "stop-and-frisk" serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer.16 (Emphasis ours)

In the case at bar, neither the in flagrante delicto nor the "stop and frisk" principles is applicable to justify the warrantless arrest and consequent search and seizure made by the police operatives on accused-appellant.

In in flagrante delicto arrests, the accused is apprehended at the very moment he is committing or attempting to commit or has just committed an offense in the presence of the arresting officer. Emphasis should be laid on the fact that the law requires that the search be incidental to a lawful arrest. Therefore it is beyond cavil that a lawful arrest must precede the search of a person and his belongings.17 Accordingly, for this exception to apply two elements must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.18

We find the two aforementioned elements lacking in the case at bar. The record reveals that when accused-appellant arrived at the vicinity of Thunder Inn Hotel, he merely parked his car along the McArthur Highway, alighted from it and casually proceeded towards the entrance of the Hotel clutching a sealed Zest-O juice box. Accused-appellant did not act in a suspicious manner. For all intents and purposes, there was no overt manifestation that accused-appellant has just committed, is actually committing, or is attempting to commit a crime.

However, notwithstanding the absence of any overt act strongly manifesting a violation of the law, the group of SPO2 Nulud "hurriedly accosted"19 accused-appellant and later on "introduced themselves as police officers."20 Accused-appellant was arrested before the alleged drop-off of shabu was done. Probable cause in this case was more imagined than real. Thus, there could have been no in flagrante delicto arrest preceding the search, in light of the lack of an overt physical act on the part of accused-appellant that he had committed a crime, was committing a crime or was going to commit a crime. As applied to in flagrante delicto arrests, it has been held that "reliable information" alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, is not sufficient to constitute probable cause that would justify an in flagrante delicto arrest.21 Hence, in People v. Aminudin,22 we ruled that "the accused-appellant was not, at the moment of his arrest,

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committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension" (Emphasis supplied).

The reliance of the prosecution in People v. Tangliben23 to justify the police’s actions is misplaced. In the said case, based on the information supplied by informers, police officers conducted a surveillance at the Victory Liner Terminal compound in San Fernando, Pampanga against persons who may commit misdemeanors and also on those who may be engaged in the traffic of dangerous drugs. At 9:30 in the evening, the policemen noticed a person carrying a red travelling bag who was acting suspiciously. They confronted him and requested him to open his bag but he refused. He acceded later on when the policemen identified themselves. Inside the bag were marijuana leaves wrapped in a plastic wrapper. The police officers only knew of the activities of Tangliben on the night of his arrest.

In the instant case, the apprehending policemen already had prior knowledge from the very same informant of accused-appellant’s activities. No less than SPO2 Mario Nulud, the team leader of the arresting operatives, admitted that their informant has been telling them about the activities of accused-appellant for two years prior to his actual arrest on September 21, 1996. An excerpt of the testimony of SPO2 Mario Nulud reveals the illegality of the arrest of accused-appellant as follows:

Q. Did the civilian informer of yours mentioned to you the name of this chinese drug pusher?

A. He is mentioning the name of Binad or Jojo Chua.

Q. And he had been mentioning these names to you even before September 21, 1996?

A. Yes, sir.

Q. How long did this civilian informant have been telling you about the activities of this chinese drug pusher reckoning in relation to September 21, 1996?

A. That was about two years already.

Q. Nothwithstanding his two years personal knowledge which you gained from the civilian informant that this chinese drug pusher have been engaged pushing drugs here in Angeles City, you did not think of applying for a search warrant for this chinese drug pusher?

A. No, sir.

x x x x x x x x x

Q. When you accosted this Binad Chua, he was casually walking along the road near the Thunder Inn Hotel, is that right?

A. He was pinpointed by the civilian informer that he is the chinese drug pusher that will deliver to him also.

Q. My question Mr. Witness, is this Jojo Chua or Binad Chua the accused in this case he alighted with a Corolla car with plate number 999, I think, he just alighted when you saw him?

A. Yes, sir.

Q. From the car when he alighted, he casually walked towards near the entrance of the Thunder Inn Hotel?

A. He was about to proceed towards Thunder Inn Hotel but he was pinpointed already by the civilian informer.

Q. But he was just walking towards the entrance of the Thunder Inn Hotel?

A. Yes, sir, he is about to enter Thunder Inn Hotel.

x x x x x x x x x

Q. While he was walking, then you and PO2 Nunag pounced on him as you used pounced on him in your affidavit?

A. Yes, sir.

x x x x x x x x x

Q. And you pounced on Jojo Chua before you saw that alleged small plastic bag, is that correct?

A. Yes, sir.

Q. And after that you also confiscated this Zesto juice box?

A. Yes, sir.

x x x x x x x x x

Q. But would you agree with me that not all crystalline substance is shabu?

A. No, that is shabu and it is been a long time that we have been tailing the accused that he is really a drug pusher.

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Q. So you have been tailing this accused for quite a long time that you are very sure that what was brought by him was shabu?

A. Yes, sir.24

The police operatives cannot feign ignorance of the alleged illegal activities of accused-appellant. Considering that the identity, address and activities of the suspected culprit was already ascertained two years previous to the actual arrest, there was indeed no reason why the police officers could not have obtained a judicial warrant before arresting accused-appellant and searching his person. Whatever information their civilian asset relayed to them hours before accused-appellant’s arrest was not a product of an "on-the-spot" tip which may excuse them from obtaining a warrant of arrest. Accordingly, the arresting team’s contention that their arrest of accused-appellant was a product of an "on-the-spot" tip is untenable.

In the same vein, there could be no valid "stop-and-frisk" in this case. A stop-and-frisk was defined as the act of a police officer to stop a citizen on the street, interrogate him, and pat him for weapon(s)25 or contraband. The police officer should properly introduce himself and make initial inquiries, approach and restrain a person who manifests unusual and suspicious conduct, in order to check the latter’s outer clothing for possibly concealed weapons.26 The apprehending police officer must have a genuine reason, in accordance with the police officer’s experience and the surrounding conditions, to warrant the belief that the person to be held has weapons (or contraband) concealed about him.27 It should therefore be emphasized that a search and seizure should precede the arrest for this principle to apply.28

This principle of "stop-and-frisk" search was invoked by the Court in Manalili v. Court of Appeals.29 In said case, the policemen chanced upon the accused who had reddish eyes, walking in a swaying manner, and who appeared to be high on drugs. Thus, we upheld the validity of the search as akin to a "stop-and-frisk." In People v. Solayao,30 we also found justifiable reason to "stop-and-frisk" the accused after considering the following circumstances: the drunken actuations of the accused and his companions, the fact that his companions fled when they saw the policemen, and the fact that the peace officers were precisely on an intelligence mission to verify reports that armed persons where roaming the vicinity.

The foregoing circumstances do not obtain in the case at bar. There was no valid "stop-and-frisk" in the case of accused-appellant. To reiterate, accused-appellant was first arrested before the search and seizure of the alleged illegal items found in his possession. The apprehending police operative failed to make any initial inquiry into accused-appellant’s business in the vicinity or the contents of the Zest-O juice box he was carrying. The apprehending police officers only introduced themselves when they already had custody of accused-appellant. Besides, at the time of his arrest, accused-appellant did not exhibit manifest unusual and suspicious conduct

reasonable enough to dispense with the procedure outlined by jurisprudence and the law. There was, therefore, no genuine reasonable ground for the immediacy of accused-appellant’s arrest.

Obviously, the acts of the police operatives wholly depended on the information given to them by their confidential informant. Accordingly, before and during that time of the arrest, the arresting officers had no personal knowledge that accused-appellant had just committed, was committing, or was about to commit a crime.

At any rate, even if the fact of delivery of the illegal drugs actually occurred, accused-appellant’s warrantless arrest and consequent search would still not be deemed a valid "stop-and frisk". For a valid "stop-and-frisk" the search and seizure must precede the arrest, which is not so in this case. Besides, as we have earlier emphasized, the information about the illegal activities of accused-appellant was not unknown to the apprehending officers. Hence, the search and seizure of the prohibited drugs cannot be deemed as a valid "stop-and-frisk".

Neither can there be valid seizure in plain view on the basis of the seized items found in accused-appellant’s possession. First, there was no valid intrusion. Second, the evidence, i.e., the plastic bags found in the Zest-O juice box which contained crystalline substances later on identified as methamphetamine hydrochloride (shabu) and the 20 rounds of .22 caliber ammunition, were not inadvertently discovered. The police officers first arrested accused-appellant and intentionally searched his person and peeked into the sealed Zest-O juice box before they were able to see and later on ascertain that the crystalline substance was shabu. There was no clear showing that the sealed Zest-O juice box accused-appellant carried contained prohibited drugs. Neither were the small plastic bags which allegedly contained crystalline substance and the 20 rounds of .22 caliber ammunition visible. These prohibited substances were not in plain view of the arresting officers; hence, inadmissible for being the fruits of the poisonous tree.

In like manner, the search cannot be categorized as a search of a moving vehicle, a consented warrantless search, or a customs search. It cannot even fall under exigent and emergency circumstances, for the evidence at hand is bereft of any such showing.1a\^/phi1.net

All told, the absence of ill-motive on the part of the arresting team cannot simply validate, much more cure, the illegality of the arrest and consequent warrantless search of accused-appellant. Neither can the presumption of regularity of performance of function be invoked by an officer in aid of the process when he undertakes to justify an encroachment of rights secured by the Constitution.31 In People v. Nubla,32 we clearly stated that:

The presumption of regularity in the performance of official duty cannot be used as basis for affirming accused-appellant’s conviction because, first, the presumption is precisely just that – a mere presumption. Once challenged by evidence, as in this

27

case, xxx [it] cannot be regarded as binding truth. Second, the presumption of regularity in the performance of official functions cannot preponderate over the presumption of innocence that prevails if not overthrown by proof beyond reasonable doubt.

Furthermore, we entertain doubts whether the items allegedly seized from accused-appellant were the very same items presented at the trial of this case. The record shows that the initial field test where the items seized were identified as shabu, was only conducted at the PNP headquarters of Angeles City.33 The items were therefore not marked at the place where they were taken. In People v. Casimiro,34 we struck down with disbelief the reliability of the identity of the confiscated items since they were not marked at the place where they were seized, thus:

The narcotics field test, which initially identified the seized item as marijuana, was likewise not conducted at the scene of the crime, but only at the narcotics office. There is thus reasonable doubt as to whether the item allegedly seized from accused-appellant is the same brick of marijuana marked by the policemen in their headquarters and given by them to the crime laboratory.

The government’s drive against illegal drugs needs the support of every citizen. But it should not undermine the fundamental rights of every citizen as enshrined in the Constitution. The constitutional guarantee against warrantless arrests and unreasonable searches and seizures cannot be so carelessly disregarded as overzealous police officers are sometimes wont to do. Fealty to the constitution and the rights it guarantees should be paramount in their minds, otherwise their good intentions will remain as such simply because they have blundered. The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.35

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Angeles City, Branch 59, in Criminal Cases Nos. 96-507 and 96-513, convicting accused-appellant Binad Sy Chua of violation of Section 16, Article III, Republic Act No. 6425 and sentencing him to suffer the penalty of reclusion perpetua and to pay a fine of P1,000,000.00, is REVERSED and SET ASIDE. Accused-appellant Binad Sy Chua is ACQUITTED on the ground of reasonable doubt. Consequently, he is ordered forthwith released from custody, unless he is being lawfully held for another crime.

SO ORDERED.