Valmonte Case

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G.R. No. 83988 September 29, 1989RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FORPEOPLE'S RIGHTS (ULAP),petitioners, vs. GEN. RENATO DE VILLA AND NATIONALCAPITAL REGION DISTRICT COMMAND, respondents.Ricardo C. Valmonte for himself and his co-petitioners.PADILLA, J.:This is a petition for prohibition with preliminary injunction and/or temporary restraining order, seekingthe declaration of checkpoints in Valenzuela, Metro Manila or elsewhere, as unconstitutional and thedismantling and banning of the same or, in the alternative, to direct the respondents to formulateguidelines in the implementation of checkpoints, for the protection of the people.

Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the Republic, taxpayer, member ofthe Integrated Bar of the Philippines (IBP), and resident of Valenzuela, Metro Manila; while petitionerUnion of Lawyers and Advocates for People's Rights (ULAP) sues in its capacity as an associationwhose members are all members of the IBP.

The factual background of the case is as follows:On 20 January 1987, the National Capital Region District Command (NCRDC) was activated pursuantto Letter of Instruction 02/87 of the Philippine General Headquarters, AFP, with the mission ofconducting security operations within its area of responsibility and peripheral areas, for the purpose ofestablishing an effective territorial defense, maintaining peace and order, and providing anatmosphere conducive to the social, economic and political development of the National CapitalRegion. 1 As part of its duty to maintain peace and order, the NCRDC installed checkpoints in variousparts of Valenzuela, Metro Manila.

Petitioners aver that, because of the installation of said checkpoints, the residents of Valenzuela areworried of being harassed and of their safety being placed at the arbitrary, capricious and whimsicaldisposition of the military manning the checkpoints, considering that their cars and vehicles are beingsubjected to regular searches and check-ups, especially at night or at dawn, without the benefit of asearch warrant and/or court order. Their alleged fear for their safety increased when, at dawn of 9 July

1988, Benjamin Parpon, a supply officer of the Municipality of Valenzuela, Bulacan, was gunned downallegedly in cold blood by the members of the NCRDC manning the checkpoint along McArthurHighway at Malinta, Valenzuela, for ignoring and/or refusing to submit himself to the checkpoint andfor continuing to speed off inspire of warning shots fired in the air. Petitioner Valmonte also claimsthat, on several occasions, he had gone thru these checkpoints where he was stopped and his carsubjected to search/check-up without a court order or search warrant.

Petitioners further contend that the said checkpoints give the respondents a blanket authority to makesearches and/or seizures without search warrant or court order in violation of the Constitution; 2and,instances have occurred where a citizen, while not killed, had been harassed.

Petitioners' concern for their safety and apprehension at being harassed by the military manning thecheckpoints are not sufficient grounds to declare the checkpoints as per se illegal. No proof has been

presented before the Court to show that, in the course of their routine checks, the military indeedcommitted specific violations of petitioners' right against unlawful search and seizure or other rights.

In a case filed by the same petitioner organization, Union of Lawyers and Advocates for People'sRight (ULAP) vs. Integrated National Police, 3it was held that individual petitioners who do not allegethat any of their rights were violated are not qualified to bring the action, as real parties in interest.

The constitutional right against unreasonable searches and seizures is a personal right invocable onlyby those whose rights have been infringed, 4 or threatened to be infringed. What constitutes areasonable or unreasonable search and seizure in anyparticular case is purely a judicial question,determinable from a consideration of the circumstances involved. 5

Petitioner Valmonte's general allegation to the effect that he had been stopped and searched without

a search warrant by the military manning the checkpoints, without more, i.e., without stating thedetails of the incidents which amount to a violation of his right against unlawful search and seizure, isnot sufficient to enable the Court to determine whether there was a violation of Valmonte's right

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against unlawful search and seizure. Not all searches and seizures are prohibited. Those which arereasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but isto be resolved according to the facts of each case. 6

Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked onthe public fair grounds, 7 or simply looks into a vehicle, 8 or flashes a light therein, 9 these do not

constitute unreasonable search.

The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may beconsidered as a security measure to enable the NCRDC to pursue its mission of establishing effectiveterritorial defense and maintaining peace and order for the benefit of the public. Checkpoints may alsobe regarded as measures to thwart plots to destabilize the government, in the interest of publicsecurity. In this connection, the Court may take judicial notice of the shift to urban centers and theirsuburbs of the insurgency movement, so clearly reflected in the increased killings in cities of policeand military men by NPA "sparrow units," not to mention the abundance of unlicensed firearms andthe alarming rise in lawlessness and violence in such urban centers, not all of which are reported inmedia, most likely brought about by deteriorating economic conditions which all sum up to whatone can rightly consider, at the very least, as abnormal times. Between the inherent right of the stateto protect its existence and promote public welfare and an individual's right against a warrantless

search which is howeverreasonablyconducted, the former should prevail.

True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform, in thesame manner that all governmental power is susceptible of abuse. But, at the cost of occasionalinconvenience, discomfort and even irritation to the citizen, the checkpoints during these abnormaltimes, when conducted within reasonable limits, are part of the price we pay for an orderly society anda peaceful community.

Finally, on 17 July 1988, military and police checkpoints in Metro Manila were temporarily lifted and areview and refinement of the rules in the conduct of the police and military manning the checkpointswas ordered by the National Capital Regional Command Chief and the Metropolitan Police Director. 10

WHEREFORE, the petition is DISMISSED.

SO ORDERED.Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Bidin, Cortes,Grio-Aquino, Medialdea and Regalado, JJ., concur.Separate OpinionsCRUZ, J., dissenting:I dissent. The sweeping statements in the majority opinion are as dangerous as the checkpoints itwould sustain and fraught with serious threats to individual liberty. The bland declaration thatindividual rights must yield to the demands of national security ignores the fact that the Bill of Rightswas intended precisely to limit the authority of the State even if asserted on the ground of nationalsecurity. What is worse is that the searches and seizures are peremptorily pronounced to bereasonable even without proof of probable cause and much less the required warrant. The improbable

excuse is that they are aimed at 'establishing an effective territorial defense, maintaining peace andorder, and providing an atmosphere conducive to the social, economic and political development ofthe National Capital Region." For these purposes, every individual may be stopped and searched atrandom and at any time simply because he excites the suspicion, caprice, hostility or malice of theofficers manning the checkpoints, on pain of arrest or worse, even being shot to death, if he resists.I have no quarrel with a policeman flashing a light inside a parked vehicle on a dark street as a routinemeasure of security and curiosity. But the case at bar is different. Military officers are systematicallystationed at strategic checkpoint to actively ferret out suspected criminals by detaining and searchingany individual who in their opinion might impair "the social, economic and political development of theNational Capital Region." It is incredible that we can sustain such a measure. And we are not evenunder martial law.

Unless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and

the barbed wire, with the Court itself a captive of its own complaisance and sitting at the death-bed ofliberty.

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SARMIENTO, J., dissenting:I join Justice Isagani Cruz in his dissent, delivered so staightforwardly and eloquently. I am agreedthat the existence alone of checkpoints makes search done therein, unreasonable and hence,repugnant to the Constitution.

The Charter says that the people enjoy the right of security of person, home, and effects. (CONST.,

art. III, sec. 2.) It is also the bedrock the right of the people to be left alone on which the regimeof law and constitutionalism rest. It is not, as the majority would put it, a matter of "occasionalinconveniences, discomfort and even irritation." (Resolution, 4.) To say that it is, is so I submit totrivialize the plain command of the Constitution.

Checkpoints, I further submit, are things of martial rule, and things of the past. They first saw the lightof day by virtue of General Order No. 66 (AUTHORIZING THE CHIEF OF CONSTABULARY TOESTABLISH CHECKPOINTS, UPDATE LISTS OF WANTED PERSONS AND CONDUCT DRAGNETOPERATIONS AND FOR OTHER PURPOSES), a martial law issuance, as amended by GeneralOrder No. 67 (AMENDING AND AMPLIFYING PARAGRAPH 7 OF GENERAL ORDER NO. 66DATED SEPTEMBER 12, 1980), yet another martial law issuance. (See O.G. 4224-4226; 4226-4227[Aug., 1983].) They are, so I strongly submit, repressive measures, the same measures against whichwe had fought so painstakingly in our quest for liberty, a quest that ended at EDSA and a quest that

terminated a dictatorship. How soon we forget.

While the right against unreasonable searches and seizures, as my brethren advance, is a rightpersonal to the aggrieved party, the petitioners, precisely, have come to Court because they hadbeen, or had felt, aggrieved. I submit that in that event, the burden is the State's, to demonstrate thereasonableness of the search. The petitioners, Ricardo Valmonte in particular, need not, therefore,have illustrated the "details of the incident" (Resolution, supra, 4) in all their gore and gruesomeness.In any event, the absence alone of a search warrant, as I have averred, makes checkpoint searchesunreasonable, and by itself, subject to constitutional challenges. (Supra.) As it is, "checkpoints", havebecome "search warrants" unto themselves a roving one at that.

That "[n]ot all searches and seizures are prohibited," the majority points out, is fine. And so is "areasonable search is not to be determined by any fixed formula but is to be resolved according to the

facts of each case." (Supra) But the question, exactly, is: Is (are) the search(es) in this casereasonable? I submit that it (they) is (are) not, for one simple reason: No search warrant has beenissued by a judge.

I likewise do not find this case to be a simple matter of an "officer merely draw(ing) aside the curtainof a vacant vehicle ... or simply look(ing) (supra) there, "or flash(ing) a light therein." (Supra) What wehave here is Orwell's Big Brother watching every step we take and every move we make.

As it also is, "checkpoints" are apparently, State policy. The American cases the majority refers toinvolve routine checks compelled by "probable cause". What we have here, however, is not simply apoliceman on the beat but armed men, CAFGU or Alsa Masa, who hold the power of life or death overthe citizenry, who fire with no provocation and without batting an eyelash. They likewise shoot yousimply because they do not like your face. I have witnessed actual incidents.

Washington said that militia can not be made to dictate the terms for the nation. He can not beanymore correct here.

"Between the inherent right of the state to protect its existence ... and on individual's right against awarrantless search, which is reasonably conducted, "so my brethren go on, the former shall prevail.(Supra) First, this is the same lie that the hated despot foisted on the Filipino people. It is a seriousmistake to fall for it a second time around. Second, the checkpoint searches herein are unreasonable:There was no warrant.

A final word. After twenty years of tyranny, the dawn is upon us. The country is once again the"showcase of democracy" in Asia. But if in many cases, it has been "paper democracy", let this Courtanyway bring to pass its stand, and make liberty in the land, a living reality.

I vote then, to grant the petition.

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Footnotes1 Comment of Respondents. Rollo, p. 32.2 Article III, Section 2, 1987 Constitution provides: The right of the people to be secure in theirpersons, houses, papers, and effects against unreasonable searches and seizures ofwhatever nature and for any purpose shall be inviolable, and no search warrant or warrant ofarrest 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.3 G.R. No. 80432. Minute Resolution dated 8 March 1988.4 Section 52, 79 C.J.S. 810-811.5 Section 8, 79 C.J.S. 786.6 U.S. v. Robinwitz, N.Y., 70 S. Crt. 430,339 U.S. 56,94 L.Ed. 653; Harries v. U.S., Okl., 67S.Ct. 1098 & 331 U.S. 146, 94 L.Ed. 1871; Martin v. U.S., C.A. Va., 183 F2d 436; 66, 79C.J.S., 835-8,36.7 Ibid., citing the case of People v. Case, 190 MW 289, 220 Mich. 379, 27 A.L.R. 686.8 Ibid., citing the case of State v. Gaina, 97 SE 62, 111 S.C. 1 74, 3 A.L.R. 1500.9 Ibid., citing the case of Rowland v. Commonwealth, 259 SW 33, 202 Rg 92.10 Comment. Rollo, pp. 25-26.

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

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CYNTHIA D. NOLASCO, MILA AGUILAR-ROQUE and WILLIE C.TOLENTINO, petitioners, vs. HON. ERNANI CRUZ PAO, Executive Judge, RTC ofQuezon City; HON. ANTONIO P. SANTOS, Presiding Judge, Branch XLII, MTC ofQuezon City: HON. SERGIO F. APOSTOL, City Fiscal, Quezon City; HON. JUANPONCE ENRILE, LT. GEN. FIDEL RAMOS and COL. JESUS ALTUNA, respondents.

MELENCIO-HERRERA, J.:The facts before the Court in these Certiorari, Prohibition, and mandamus proceedings will be brieflystated. 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 oneof the accused of Rebellion in Criminal Case No. MC-25-113 of Military Commission No. 25, bothcases 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 ConstabularySecurity Group (CSG) at the intersection of Mayon Street and P. Margall Street, Quezon City. Thestated time is an allegation of petitioners, not denied by respondents. The record does not disclosethat 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. Intheir COMMENT, however, respondents have alleged that the search was conducted "late on thesame 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 SearchWarrant from respondent Hon. Ernani Cruz Pao, Executive Judge of the Regional Trial Court inQuezon City, to be served at No. 239-B Mayon Street, Quezon City, determined tyo be the leasedresidence of AGUILAR-ROQUE, after almost a month of "round the clock surveillance" of thepremises as a "suspected underground house of the CPP/NPA." AGUILAR-ROQUE has been longwanted by the military for being a high ranking officer of the Communist Party of the Philippines,particularly connected with the MV Karagatan/Doa 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 forrebellion" (the SEARCH WARRANT CASE). JudgePanos 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 Pao.(c) According to the record, Lt. Col. Saldajeno and his witness S/A Dionicio A. Lapus, were examinedunder oath by Judge Pao but only the deposition of S/A Lapus has been submitted to us. The latterdeposed 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 supportmoney 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 partypresumably without a warrant of arrest.

(b) The searching party seized 428 documents and written materials,2

and additionally a portabletypewriter, 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 thesearch 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 articlesand 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, werecharged before the Quezon City Fiscal's Office (the CITY FISCAL, for short) upon complaint filed bythe CSG against petitioners for "Subversion/Rebellion and/or Conspiracy to CommitRebellion/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 JudgeAntonio P. Santos, presiding.

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(c) On August 16th, CSG filed a Motion for Reconsideration with the CITY FISCAL, praying thatAGUILAR-ROQUE and NOLASCO be charged with Subversion. The Motion was denied onNovember 16th.7. (a) On September 10th, the CSG submitted an Amended Return in the SEARCH WARRANT CASEpraying, inter alia, that the CSG be allowed to retain the seized 431 documents and articles, inconnection 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 AmendedReturn, which AGUILAR-ROQUE did on October 18th, raising the issue of the inadmissibility of anyevidence obtained pursuant to the Search Warrant.(c) On December 13, 1984, Judge Pao admitted the Amended Return and ruled that the seizeddocuments "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 DOCUMENTSCASE, praying that such of the 431 items belonging to them be returned to them. It was claimed thatthe proceedings under the Search Warrant were unlawful. Judge Santos denied the Motion onJanuary 7, 1985 on the ground that the validity of the Search Warrant has to be litigated in theSEARCH WARRANT CASE. He was apparently not aware of the Order of Judge Pao of December13th issued in the SEARCH WARRANT CASE.

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

This Court, on February 12, 1985, issued a TRO enjoining the respondents or their duly authorizedrepresentatives from introducing evidence obtained under the Search Warrant.

The PETITIONERS principally assert that the Search Warrant is void because it is a general warrantsince 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 questionspropounded 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 theirpersons, houses, papers and effects against unreasonable searches and seizures of whatever natureand for any purpose. It also specifically provides that no Search Warrant shall issue except uponprobable cause to be determined by the Judge or such other responsible officer as may be authorizedby law, after examination under oath or affirmation of the complainant and the witnesses he mayproduce, 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/NewPeoples 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 andinstructions, manuals not otherwise available to the public, and support money from foreign orlocal sources.

It is at once evident that the foregoing Search Warrant authorizes the seizure of personal propertiesvaguely described and not particularized. It is an all- embracing description which includes everythingconceivable regarding the Communist Party of the Philippines and the National Democratic Front. Itdoes not specify what the subversive books and instructions are; what the manuals not otherwiseavailable to the public contain to make them subversive or to enable them to be used for the crime ofrebellion. There is absent a definite guideline to the searching team as to what items might be lawfullyseized thus giving the officers of the law discretion regarding what articles they should seize as, infact, taken also were a portable typewriter and 2 wooden boxes. It is thus in the nature of a generalwarrant 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 nulland void for being too general. Thus:

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Subversive documents, pamphlets, leaflets, books, and other publications to promote theobjectives and purposes of the subversive organizations known as Movement for FreePhilippines. 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 teamas to what articles might be lawfully seized thereunder. Said description is no different from ifnot worse than, the description found in the search warrants in "Burgos, et al. v. the Chief ofStaff"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 ofprinted copies of the Philippine Times, manuscripts/drafts of articles for publication,newspaper dummies subversive documents, articles, etc., and even typewriters, duplicatingmachines, mimeographing and tape recording machines. Thus, the language used is so allembracing as to include all conceivable records and equipment of petitioner regardless ofwhether they are legal or illegal. The search warrant under consideration was in the nature ofa general warrant which is constitutionally objectionable. 8

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

Q Mr. Dionicio Lapus, there is an application for search warrant filed by Lt. Col. VirgilioSaldajeno and the Court would like to know if you affirm the truth of your answer in thisdeposition?(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 suspiciouspersons 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 ofthe 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 nototherwise 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 arenot sufficiently searching to establish probable cause. The "probable cause" required to justify theissuance of a search warrant comprehends such facts and circumstances as will induce a cautiousman to rely upon them and act in pursuant thereof. 10 Of the 8 questions asked, the 1st, 2nd and 4thpertain to Identity. The 3rd and 5th are leading not searching questions. The 6th, 7th and 8th refer tothe description of the personalities to be seized, which is Identical to that in the Search Warrant andsuffers from the same lack of particularity. The examination conducted was general in nature andmerely repetitious of the deposition of said witness. Mere generalization will not suffice and does notsatisfy 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 Warrantis 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 obtainedunder the Search Warrant, even during the inquest investigation on August 10, 1984. And in the

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SUBVERSIVE DOCUMENTS CASE, they filed a Motion to Suppress on December 12, 1984 claimingthat the proceedings under the Search Warrant were unlawful. Substantially, therefore, while notdenominated 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 theSUBVERSIVE 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 byone Court, or Branch, and a criminal prosecution is initiated in another Court, or Branch, as a result ofthe service of the Search Warrant, the SEARCH WARRANT CASE should be consolidated with thecriminal case for orderly procedure. The later criminal case is more substantial than the SearchWarrant proceeding, and the Presiding Judge in the criminal case should have the right to act onpetitions to exclude evidence unlawfully obtained.

Notwithstanding the irregular issuance of the Search Warrant and although, ordinarily, the articlesseized under an invalid search warrant should be returned, they cannot be ordered returned in thecase 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 offensemay 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, ofa person who had been arrested. It is also a general rule that, as an incident of an arrest, the place orpremises 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 thedecisions as to what constitutes the extent of the place or premises which may be searched. 12 "Whatmust be considered is the balancing of the individual's right to privacy and the public's interest in theprevention of crime and the apprehension of criminals." 13

Considering that AGUILAR-ROQUE has been charged with Rebellion, which is a crime against publicorder; 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 madewithin a half hour of her arrest, we are of the opinion that in her respect, the search at No. 239-BMayon Street, Quezon City, did not need a search warrant; this, for possible effective results in theinterest of public order.

Such being the case, the personalities seized may be retained. by CSG, for possible introduction asevidence in the Rebellion Case, leaving it to AGUILAR-ROQUE to object to their relevance and to askSpecial 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 ExecutiveJudge Ernani Cruz Pao is hereby annulled and set aside, and the Temporary Restraining Orderenjoining respondent from introducing evidence obtained pursuant to the Search Warrant in theSubversive 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-Roqueobjecting to their relevance and asking said Commission to return to her any and all irrelevantdocuments and articles. SO ORDERED.Separate OpinionsTEEHANKEE, J., concurring and dissenting:I concur with the concurring and dissenting opinion of Mr. Justice Vicente Abad Santos. Thequestioned search warrant has correctly been declared null and void in the Court's decision as ageneral warrant issued in gross violation of the constitutional mandate that "the right of the people tobe secure in their persons, houses, papers and effects against unreasonable searches and seizuresof whatever nature and for any purpose shall not be violated" (Bill of Rights, sec. 3). The Bill of Rights

orders the absolute exclusion of all illegally obtained evidence: "Any evidence obtained in violation ofthis . . . section shall be inadmissible for any purpose in any proceeding" (Sec. 4[2]). This

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constitutional mandate expressly adopting the exclusionary rule has proved by historical experience tobe the only practical means of enforcing the constitutional injunction against unreasonable searchesand seizures by outlawingall evidence illegally seized and thereby removing the incentive on the partof state and police officers to disregard such basic rights. What the plain language of the Constitutionmandates is beyond the power of the courts to change or modify.

All the articles thus seized fall under the exclusionary rule totally and unqualifiedlyand cannot beused against any of the three petitioners, as held by the majority in the recent case of Galman vs.Pamaran (G.R. Nos. 71208-09, August 30, 1985). The Court has held that "in issuing a searchwarrant the judge must strictly comply with the requirements of the Constitution and the statutoryprovisions. A liberal construction should be given in favor of the individual to prevent stealthyencroachment upon, or gradual depreciation of the rights secured by the Constitution. Nopresumptions of regularity are to be invoked in aid of the process when an officer undertakes to justifyit." (Mata vs. Bayona, 128 SCRA 388, 393-394)

The majority pronouncement that "as an incident to (petitioner Mila Aguilar- Roque's) arrest, herdwelling at No. 239-B Mayon Street, Quezon City could have been searched, even without a warrant,for evidence of rebellion" is patently against the constitutional proscription and settled law andjurisprudence. Mr. Justice Cuevas amply discusses this in the dissenting portion of his separate

opinion. Suffice it to add and stress that the arresting CSG Group themselves knew that they neededa search warrant and obtained the void warrant in question. The exception of Rule 126, sec. 12 whichallows a warrantless search of a person who is lawfully arrested is absolutely limited to his person, atthe time of and incident to his arrest and to dangerous weapons or anything which may be used asproof of the commission of the offense." Such warrantless search obviously cannot be made in aplaceotherthan the place of arrest. In this case, petitioner Aguilar-Roque was arrested at 11:30 a.m.on board a public vehicle on the road(at Mayon and P. Margall Streets). To hold that her dwellingcould "later on the same day" be searched without warrant is to sanction an untenable violation, if notnullification, of the cited basic constitutional rights against unreasonable searches and seizures.I vote to grant the petition in toto.

ABAD SANTOS, J., concurring and dissenting:I concur in the judgment insofar as it annuls and sets aside Search Warrant No. 80-84 issued by

Executive Judge Ernani Cruz Pao for the reasons adduced by Justice Melencio Herrera. In addition Iwish to state the judge either did not fully know the legal and constitutional requirements for theissuance of a search warrant or he allowed himself to be used by the military. In either case his actioncan only be described as deplorable.

I do not agree with theponencia when it says that personalities seized may be retained by theConstabulary Security Group for possible introduction as evidence in Criminal Case No. SMC-1-1pending before Special Military Commission No. 1. I agree with Justice Cuevas. for the reasons statedby him, that their retention cannot be justified by the provisions of Sec. 12, Rule 126 of the Rules ofCourt. But then again I cannot agree with Justice Cuevas, statement that not all the things seized canbe ordered returned to their owners. He refers to "the subversive materials seized by the governmentagents." What are subversive materials? Whether a material is subversive or not is a conclusion oflaw, not of fact. Who will make the determination? Certainly not the military for it is not competent to

do so aside from the fact that it has its own peculiar views on the matter. thus copies of Playboymagazines were seized from a labor leader now deceased and medicines were also seized from aphysician who was suspected of being a subversive. I say return everything to the petitioners.

CUEVAS, J., concurring and dissentingI fully agree with the pronouncement in the majority opinion nullifying Search warrant No. 80-84issued by the Hon. Ernani Cruz Pao Executive Judge of the Regional Trial Court of Quezon Citywhich was served at 239B Mayon St., Quezon City It does not specify with requisite particularity thethings, objects or properties that may be seized hereunder. Being in the nature of a general warrant, itviolates the constitutional mandate that the place to be searched and the persons or things to beseized, 'must be particularly described. (Art. IV, Sec. 3, 1973 Constitution)

I, however, regret being unable to concur with the dictum justifying the said search on the basis of

Sec. 12, Rule 126 of the Rules of Court which provides:

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

The lawful arrest being the sole justification for the validity of the warrantless search under theaforequoted provision (Sec. 12, Rule 126) the same must be limited to and circumscribed by,

the subject, time, andplace of said arrest. As to subject, the warrantless search is sanctioned onlywith respect to the person of the suspect, and things that may be seized from him are limited to"dangerous weapons" or "anything which may be used as proof of the commission of the offense."Hence

An officer making an arrest may take from the person arrested any money or property foundupon his person which was used in the commission of the crime or might furnish the prisonerwith the means of committing violence or escaping or which may be used as evidence in thetrial of the cause ... (In Re Moreno vs. Ago Chi, 12 Phil. 439: People vs. Veloso, 48 Phil. 169)

With respect to the time andplace of the warrantless search allowed by law, it must becontemporaneous with the lawful arrest. Stated otherwise, to be valid, the search must have beenconducted at about the time of the arrest or immediately thereafter and only at the place where thesuspect was arrested,

The right without a search warrant contemporaneously to search a person lawfullyarrested while committing a crime and to search the place where the arrest is made in orderto find and seize things connected with the crime as its fruits or as the means by which it wascommitted, as well as weapons or other things to effect an escape from custody is not to bedoubted. CAROLL vs. US 267 US 122. 158. ... But the right does not extend to other places.Frank Agnello's house was several blocks distant from Alba's house where the arrest wasmade. When it was entered and searched, the conspiracy was ended and the defendantswere under arrest and in custody elsewhere. That search cannot be sustained as an incidentof the arrests. MARSON vs. US, 275 US 192, 199. (Emphasis supplied) (Agnello vs. U.S.,269 U.S. 20,30)

The second element which must exist in order to bring the case within the exception to the generalrule is that, in addition to a lawful arrest, the search must be incident to the arrest.

The search must be made at the place of the arrest, otherwise, it is not incident to thearrest.AGNELLO vs. U.S. supra. In this latter case, 269 U.S. 20 at 30, it is said that theofficers have a right to make a search contemporaneously with the arrest. And if the purposeof the officers in making their entry is not to make an arrest, but to make a search to obtainevidence for some future arrest, then search is not incidental to arrest. BYARS vs. U.S. 273U.S., 28 ET AL. (Papani vs, U. S. 84 F 2d 160, 163)

In the instant case, petitioners were arrested at the intersection of Mayon St. and P. Margall St. at11:30 A.M. of August 6. 1976. The search, on the other hand, was conducted after the arrest, thatwas at around 12:00 noon of the same day or "late that same day (as respondents claim in their"COMMENT") at the residence of petitioner AGUILAR-ROQUE in 239B May n St., Quezon City. How far or how many kilometers is that place from the place where petitioner was arrested do not appearshown by the record. But what appears undisputed is that the search was made in a place other than

the place of arrest and, not on the occasion of nor immediately after the arrest. It cannot be said,therefore, that such a search was incidental to the arrest of the petitioners. Not being an incident of alawful arrest, the search of the premises at 239B Mayon St., Quezon City WITHOUT A VALIDSEARCH WARRANT is ILLEGAL and violative of the constitutional rights of the respondent. Thethings and properties seized on the occasion of said illegal search are therefore INADMISSIBLE inevidence under the exclusionary rule. However, not all the things so seized can be ordered returnedto their owners. Objects and properties the possession of which is prohibited by law, cannot bereturned to their owners notwithstanding the illegality of their seizure. (Mata vs. Bayona, 128 SCRA388, 1984 citing Castro vs. Pabalan, 70 SCRA 478). Thus, the subversive materials seized by thegovernment agents which cannot be legally possessed by anyone under the law can and must beretained by the government.

G.R. No. 136292 January 15, 2002

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RUDY CABALLES y TAIO, petitioner, vs. COURT OF APPEALS and PEOPLE OF THEPHILIPPINES, respondents.

PUNO, J.:This is an appeal by certiorarifrom the decision1of respondent Court of Appeals dated September 15,1998 which affirmed the judgment rendered by the RTC of Santa Cruz, Laguna, finding herein

petitioner, Rudy Caballes y Taio, guilty beyond reasonable doubt of the crime of theft, and theresolution2 dated November 9, 1998 which denied petitioner's motion for reconsideration.In an Information3 dated October 16, 1989, petitioner was charged with the crime of theft committedas follows:

"That on or about the 28th day of June, 1989, in the Municipality of Pagsanjan, and/orelsewhere in the Province of Laguna, and within the jurisdiction of this Honorable Court, theabove-named accused, with intent of gain, and without the knowledge and consent of theowner thereof, the NPC, did then and there wilfully, unlawfully and feloniously take, steal andcarry away about 630-kg of Aluminum Cable Conductors, valued at P27, 450.00, belonging toand to the damage and prejudice of said ownerNPC, in the aforesaid amount.CONTRARY TO LAW."

During the arraignment, petitioner pleaded not guilty and hence, trial on the merits ensued.

The facts are summarized by the appellate court as follows:"[At] about 9:15 p.m. of June 28, 1989, Sgt. Victorino Noceja and Pat. Alex de Castro, whileon a routine patrol in Barangay Sampalucan, Pagsanjan, Laguna, spotted a passenger jeepunusually covered with "kakawati" leaves.Suspecting that the jeep was loaded with smuggled goods, the two police officers flaggeddown the vehicle. The jeep was driven by appellant. When asked what was loaded on thejeep, he did not answer; he appeared pale and nervous.With appellant's consent, the police officers checked the cargo and they discovered bundlesof 3.08 mm aluminum/galvanized conductor wires exclusively owned by NPC. The conductorwires weighed 700 kilos and valued at P55, 244.45. Noceja asked appellant where the wirescame from and appellant answered that they came from Cavinti, a town approximately 8

kilometers away from Sampalucan. Thereafter, appellant and the vehicle with the high-voltagewires were brought to the Pagsanjan Police Station. Danilo Cabale took pictures of theappellant and the jeep loaded with the wires which were turned over to the Police StationCommander of Pagsanjan, Laguna. Appellant was incarcerated for 7 days in the Municipaljail.In defense, appellant interposed denial and alibi. He testified that he is a driver and residentof Pagsanjan, Laguna; a NARCOM civilian agent since January, 1988 although his ID hasalready expired. In the afternoon of June 28, 1989, while he was driving a passenger jeepney,he was stopped by one Resty Fernandez who requested him to transport in his jeepneyconductor wires which were in Cavinti, Laguna. He told Resty to wait until he had finished hislast trip for the day from Santa Cruz, Laguna. On his way to Santa Cruz, Laguna, he droppedby the NARCOM headquarters and informed his superior, Sgt. Callos, that somethingunlawful was going to happen. Sgt. Callos advised him to proceed with the loading of the

wires and that the former would act as back-up and intercept the vehicle at the Sambat PatrolBase in Pagsanjan.After receiving those instructions, he went back to see Resty. Although Resty had his ownvehicle, its tires were old so the cable wires were loaded in appellant's jeep and covered withkakawati leaves. The loading was done by about five (5) masked men. He waspromised P1,000.00 for the job. Upon crossing a bridge, the two vehicles separated but in hiscase, he was intercepted by Sgt. Noceja and Pat. De Castro. When they discovered thecables, he told the police officers that the cables were loaded in his jeep by the owner, RestyFernandez. But despite his explanation, he was ordered to proceed to police headquarterswhere he was interrogated. The police officers did not believe him and instead locked him upin jail for a week."4

On April 27, 1993, the court a quo rendered judgment5 the dispositive portion of which reads:"WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of Theft ofproperty worthP55,244.45, the Court hereby sentences him to suffer imprisonment from 2

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[YEARS], 4 MONTHS, and ) DAY of Prision Correccional, as minimum, to 10 YEARS ofPrision Mayor, as maximum, to indemnify the complainant National Power Corporation in theamount of P55, 244.45, and to pay the costs."

On appeal, the Court of Appeals affirmed the judgment of conviction but deleted the award fordamages on the ground that the stolen materials were recovered and modified the penalty imposed,

to wit:"WHEREFORE, the appealed decision is hereby AFFIRMED with the modification thatappellant RUDY CABALLES is found guilty beyond reasonable doubt as principal in theft,defined and penalized under Articles 308 and 309, par. 1, Revised Penal Code, and therebeing no modifying circumstances, he is hereby meted an indeterminate penalty of 4 years, 9months and 1) days ofprision correccional, as minimum term, to 8 years, 8 months and 1 dayof prision mayor, as maximum term. No civil indemnity and no costs."6

Petitioner comes before us and raises the following issues:"(a) Whether or not the constitutional right of petitioner was violated when the police officerssearched his vehicle and seized the wires found therein without a search warrant and whensamples of the wires and references to them were admitted in evidence as basis for hisconviction;

(b) Whether or not respondent Court erred in rejecting petitioner's defense that he wasengaged in an entrapment operation and in indulging in speculation and conjecture inrejecting said defense; and(c) Whether or not the evidence of the prosecution failed to establish the guilt of petitionerbeyond reasonable doubt and thus failed to overcome the constitutional right of petitioner topresumption of innocence."

The conviction or acquittal of petitioner hinges primarily on the validity of the warrantless search andseizure made by the police officers, and the admissibility of the evidence obtained by virtue thereof.In holding that the warrantless search and seizure is valid, the trial court ruled that:

"As his last straw of argument, the accused questions the constitutionality of the search andvalidity of his arrest on the ground that no warrant was issued to that effect. The Court cannotagain sustain such view. In the case of People v. Lo Ho [Wing], G.R. No. 88017, January 21,

1991, it has been held that 'considering that before a warrant can be obtained, the place,things and persons to be searched must be described to the satisfaction of the issuing judge -a requirement which borders on the impossible in the case of smuggling effected by the useof a moving vehicle that can transport contraband from one place to another with impunity, awarrantless search of a moving vehicle is justified on grounds of practicability.' The doctrine isnot of recent vintage. In the case of Valmonte vs. de Villa, G.R. No. 83988, May 24, 1990(Resolution on Motion for Reconsideration, September 29, 1989), it was ruled that'automobiles because of their mobility may be searched without a warrant upon facts notjustifying warrantless search of a resident or office. x x x To hold that no criminal can, in anycase, be arrested and searched for the evidence and tokens of his crime without a warrant,would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert,and the most depraved of criminals, facilitating their escape in many instances' (Ibid.). In Umilv. Ramos, 187 SCRA 311, and People vs. Ortiz, 191 SCRA 836, the Supreme Court held that

a search may be made even without a warrant where the accused is caught in flagrante.Under the circumstances, the police officers are not only authorized but are also underobligation to arrest the accused even without a warrant."7

Petitioner contends that the flagging down of his vehicle by police officers who were on routine patrol,merely on "suspicion" that "it might contain smuggled goods," does not constitute probable cause thatwill justify a warrantless search and seizure. He insists that, contrary to the findings of the trial courtas adopted by the appellate court, he did not give any consent, express or implied, to the search ofthe vehicle. Perforce, any evidence obtained in violation of his right against unreasonable search andseizure shall be deemed inadmissible.

Enshrined in our Constitution is the inviolable right of the people to be secure in their persons andproperties against unreasonable searches and seizures, as defined under Section 2, Article III thereof,

which reads:

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"Sec. 2. The right of the people to be secure in their persons, houses, papers, and effectsagainst unreasonable searches and seizures of whatever nature and for any purpose shall beinviolable, and no search warrant or warrant of arrest shall issue except upon probable causeto be determined personally by the judge after examination under oath or affirmation of thecomplainant and the witnesses he may produce, and particularly describing the place to besearched and the persons or things to be seized."

The exclusionary rule under Section 3(2), Article III of the Constitution bars the admission of evidenceobtained in violation of such right.

The constitutional proscription against warrantless searches and seizures is not absolute but admitsof certain exceptions, namely: (1) warrantless search incidental to a lawful arrest recognized underSection 12, Rule 126 of the Rules of Court and by prevailing jurisprudence;8(2) seizure of evidence inplain view;9 (3) search of moving vehicles;10(4) consented warrantless search;11 (5) customs search;(6) stop and frisk situations (Terry search);12and (7) exigent and emergency circumstances.13

In cases where warrant is necessary, the steps prescribed by the Constitution and reiterated in theRules of Court must be complied with. In the exceptional events where warrant is not necessary toeffect a valid search or seizure, or when the latter cannot be performed except without a warrant, what

constitutes a reasonable or unreasonable search or seizure is purely a judicial question, determinablefrom the uniqueness of the circumstances involved, including the purpose of the search or seizure,the presence or absence of probable cause, the manner in which the search and seizure was made,the place or thing searched and the character of the articles procured. 14

It is not controverted that the search and seizure conducted by the police officers in the case at barwas not authorized by a search warrant. The main issue is whether the evidence taken from thewarrantless search is admissible against the appellant. Without said evidence, the prosecution cannotprove the guilt of the appellant beyond reasonable doubt.

I. Search of moving vehicleHighly regulated by the government, the vehicle's inherent mobility reduces expectation of privacyespecially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting

to probable cause that the occupant committed a criminal activity. 15 Thus, the rules governing searchand seizure have over the years been steadily liberalized whenever a moving vehicle is the object ofthe search on the basis of practicality. This is so considering that before a warrant could be obtained,the place, things and persons to be searched must be described to the satisfaction of the issuingjudge a requirement which borders on the impossible in the case of smuggling effected by the useof a moving vehicle that can transport contraband from one place to another with impunity. We mightadd that a warrantless search of a moving vehicle is justified on the ground that it is not practicable tosecure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in whichthe warrant must be sought.16Searches without warrant of automobiles is also allowed for thepurpose of preventing violations of smuggling or immigration laws, provided such searches are madeat borders or 'constructive borders' like checkpoints near the boundary lines of the State. 17

The mere mobility of these vehicles, however, does not give the police officers unlimited discretion to

conduct indiscriminate searches without warrants if made within the interior of the territory and in theabsence of probable cause.18Still and all, the important thing is that there was probable cause toconduct the warrantless search, which must still be present in such a case.

Although the term eludes exact definition, probable cause signifies a reasonable ground of suspicionsupported by circumstances sufficiently strong in themselves to warrant a cautious man's belief thatthe person accused is guilty of the offense with which he is charged; or the existence of such factsand circumstances which could lead a reasonably discreet and prudent man to believe that an offensehas been committed and that the items, articles or objects sought in connection with said offense orsubject to seizure and destruction by law is in the place to be searched. 19The required probablecause that will justify a warrantless search and seizure is not determined by a fixed formula but isresolved according to the facts of each case.20

One such form of search of moving vehicles is the "stop-and-search" without warrant at military or

police checkpoints which has been declared to be not illegal per se, 21 for as long as it is warranted by

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the exigencies of public order22and conducted in a way least intrusive to motorists.23 A checkpointmay either be a mere routine inspection or it may involve an extensive search.

Routine inspections are not regarded as violative of an individual's right against unreasonable search.The search which is normally permissible in this instance is limited to the following instances: (1)where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair

grounds;24

(2) simply looks into a vehicle;25

(3) flashes a light therein without opening the car'sdoors;26(4) where the occupants are not subjected to a physical or body search;27(5) where theinspection of the vehicles is limited to a visual search or visual inspection;28and (6) where the routinecheck is conducted in a fixed area.29

None of the foregoing circumstances is obtaining in the case at bar. The police officers did not merelyconduct a visual search or visual inspection of herein petitioner's vehicle. They had to reach inside thevehicle, lift the kakawati leaves and look inside the sacks before they were able to see the cablewires. It cannot be considered a simple routine check.

In the case ofUnited States vs. Pierre,30the Court held that the physical intrusion of a part of thebody of an agent into the vehicle goes beyond the area protected by the Fourth Amendment, to wit:

"The Agent . . . stuck his head through the driver's side window. The agent thus effected a

physical intrusion into the vehicle. . . [W]e are aware of no case holding that an officer did notconduct a search when he physically intruded part of his body into a space in which thesuspect had a reasonable expectation of privacy. [The] Agent['s] . . . physical intrusionallowed him to see and to smell things he could not see or smell from outside the vehicle. . .In doing so, his inspection went beyond that portion of the vehicle which may be viewed fromoutside the vehicle by either inquisitive passersby or diligent police officers, and into the areaprotected by the Fourth amendment, just as much as if he had stuck his head inside the openwindow of a home."

On the other hand, when a vehicle is stopped and subjected to an extensive search, such awarrantless search would be constitutionally permissible only if the officers conducting the searchhave reasonable or probable cause to believe, before the search, that either the motorist is a law-offender or they will find the instrumentality or evidence pertaining to a crime in the vehicle to be

searched.31

This Court has in the past found probable cause to conduct without a judicial warrant an extensivesearch of moving vehicles in situations where (1) there had emanated from a package the distinctivesmell of marijuana; (2) agents of the Narcotics Command ("Narcom") of the Philippine National Police("PNP") had received a confidential report from informers that a sizeable volume of marijuana wouldbe transported along the route where the search was conducted; (3) Narcom agents had receivedinformation that a Caucasian coming from Sagada, Mountain Province, had in his possessionprohibited drugs and when the Narcom agents confronted the accused Caucasian, because of aconspicuous bulge in his waistline, he failed to present his passport and other identification paperswhen requested to do so; (4) Narcom agents had received confidential information that a womanhaving the same physical appearance as that of the accused would be transporting marijuana;32(5)the accused who were riding a jeepney were stopped and searched by policemen who had earlier

received confidential reports that said accused would transport a large quantity of marijuana; and (6)where the moving vehicle was stopped and searched on the basis of intelligence information andclandestine reports by a deep penetration agent or spy - one who participated in the drug smugglingactivities of the syndicate to which the accused belonged - that said accused were bringing prohibiteddrugs into the country.33

In the case at bar, the vehicle of the petitioner was flagged down because the police officers whowere on routine patrol became suspicious when they saw that the back of the vehicle was coveredwith kakawati leaves which, according to them, was unusual and uncommon.

Pat. Alex de Castro recounted the incident as follows:"ATTY. SANTOSQ Now on said date and time do you remember of any unusual incident while you were

performing your duty?

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A Yes, sir, at that time and date myself and Police Sgt. Noceja were conducting patrol inthe said place when we spotted a suspicious jeepney so we stopped the jeepney andsearched the load of the jeepney and we found out (sic) these conductor wires.Q You mentioned about the fact that when you saw the jeepney you becamesuspicious, why did you become suspicious?A Because the cargo was covered with leaves and branches, sir.

Q When you became suspicious upon seeing those leaves on top of the load what did youdo next, if any?A We stopped the jeepney and searched the contents thereof, sir."34

The testimony of Victorino Noceja did not fare any better:"ATTY SANTOSQ When you saw the accused driving the said vehicle, what did you do?A Because I saw that the vehicle being drawn by Caballes was covered by kakawatileaves, I became suspicious since such vehicle should not be covered by those and Iflagged him, sir."35

We hold that the fact that the vehicle looked suspicious simply because it is not common for such tobe covered with kakawati leaves does not constitute "probable cause" as would justify the conduct of

a search without a warrant.

In People vs. Chua Ho San,36we held that the fact that the watercraft used by the accused wasdifferent in appearance from the usual fishing boats that commonly cruise over the Bacnotan seascoupled with the suspicious behavior of the accused when he attempted to flee from the policeauthorities do not sufficiently establish probable cause. Thus:

"In the case at bar, the Solicitor General proposes that the following details are suggestive ofprobable cause - persistent reports of rampant smuggling of firearm and other contrabandarticles, CHUA's watercraft differing in appearance from the usual fishing boats thatcommonly cruise over the Bacnotan seas, CHUA's illegal entry into the Philippines x x x,CHUA's suspicious behavior, i.e., he attempted to flee when he saw the police authorities,and the apparent ease by which CHUA can return to and navigate his speedboat withimmediate dispatch towards the high seas, beyond the reach of Philippine laws.

This Court, however, finds that these do not constitute "probable cause." None of the telltaleclues, e.g., bag or package emanating the pungent odor of marijuana or other prohibited drug,confidential report and/or positive identification by informers of courier of prohibited drugand/or the time and place where they will transport/deliver the same, suspicious demeanor orbehavior, and suspicious bulge in the waist - accepted by this Court as sufficient to justify awarrantless arrest exists in this case. There was no classified information that a foreignerwould disembark at Tammocalao beach bearing prohibited drug on the date in question.CHUA was not identified as a drug courier by a police informer or agent. The fact that thevessel that ferried him to shore bore no resemblance to the fishing boats of the areadid not automatically mark him as in the process of perpetrating an offense. x x x."(emphasis supplied)

In addition, the police authorities do not claim to have received any confidential report or tipped

information that petitioner was carrying stolen cable wires in his vehicle which could otherwise havesustained their suspicion. Our jurisprudence is replete with cases where tipped information hasbecome a sufficient probable cause to effect a warrantless search and seizure. 37 Unfortunately, noneexists in this case.

II. Plain view doctrineIt cannot likewise be said that the cable wires found in petitioner's vehicle were in plain view, makingits warrantless seizure valid.

Jurisprudence is to the effect that an object is in plain view if the object itself is plainly exposed tosight. Where the object seized was inside a closed package, the object itself is not in plain view andtherefore cannot be seized without a warrant. However, if the package proclaims its contents, whetherby its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the

contents are in plain view and may be seized. In other words, if the package is such that anexperienced observer could infer from its appearance that it contains the prohibited article, then the

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article is deemed in plain view. It must be immediately apparent to the police that the items that theyobserve may be evidence of a crime, contraband or otherwise subject to seizure.38

It is clear from the records of this case that the cable wires were not exposed to sight because theywere placed in sacks39and covered with leaves. The articles were neither transparent nor immediatelyapparent to the police authorities. They had no clue as to what was hidden underneath the leaves and

branches. As a matter of fact, they had to ask petitioner what was loaded in his vehicle. In such acase, it has been held that the object is not in plain view which could have justified mere seizure of thearticles without further search.40

III. Consented searchPetitioner contends that the statement of Sgt. Victorino Noceja that he checked the vehicle "with theconsent of the accused" is too vague to prove that petitioner consented to the search. He claims thatthere is no specific statement as to how the consent was asked and how it was given, nor the specificwords spoken by petitioner indicating his alleged "consent." At most, there was only an impliedacquiescence, a mere passive conformity, which is no "consent" at all within the purview of theconstitutional guarantee.

Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right

which may be waived. The consent must be voluntary in order to validate an otherwise illegaldetention and search, i.e., the consent is unequivocal, specific, and intelligently given,uncontaminated by any duress or coercion.41 Hence, consent to a search is not to be lightly inferred,but must be shown by clear and convincing evidence.42 The question whether a consent to a searchwas in fact voluntary is a question of fact to be determined from the totality of all thecircumstances.43 Relevant to this determination are the following characteristics of the person givingconsent and the environment in which consent is given: (1) the age of the defendant; (2) whether hewas in a public or secluded location; (3) whether he objected to the search or passively lookedon;44(4) the education and intelligence of the defendant; (5) the presence of coercive policeprocedures; (6) the defendant's belief that no incriminating evidence will be found; 45(7) the nature ofthe police questioning; (8) the environment in which the questioning took place; and (9) the possiblyvulnerable subjective state of the person consenting.46 It is the State which has the burden of proving,by clear and positive testimony, that the necessary consent was obtained and that it was freely and

voluntarily given.47

In the case at bar, Sgt. Victorino Noceja testified on the manner in which the search was conducted inthis wise:

"WITNESSQ On June 28, 1989, where were you?A We were conducting patrol at the poblacion and some barangays, sir.x x x x x x x x xQ After conducting the patrol operation, do you remember of any unusual incident on saiddate and time?A Yes, sir.Q What is that incident?A While I was conducting my patrol at barangay Sampalucan, I saw Rudy Caballes driving

a vehicle and the vehicle contained aluminum wires, sir.x x x x x x x x xQ When you saw the accused driving the said vehicle, what did you do?A Because I saw that the vehicle being driven by Caballes was covered by kakawatileaves, I became suspicious since such vehicle should not be covered by those and I flaggedhim, sir.Q Did the vehicle stop?A Yes, sir, and after said vehicle stop[ped], I removed the cover of said vehicle andby so doing, I saw the aluminum wires.Q Before you saw the aluminum wires, did you talk to the accused?A Yes, sir, I asked him what his load was.Q What was the answer of Caballes?A He did not answer and I observed him to be pale, "nagpapamutla" (sic), so I told

him I will look at the contents of his vehicle and he answered in the positive.Q And after you saw for yourself the aluminum wires loaded on the jeep, what did you do?

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A I asked him where those wires came from and he answered those came from theCavinti area, sir."48

This Court is not unmindful of cases upholding the validity of consented warrantless searches andseizure. But in these cases, the police officers' request to search personnel effects was orallyarticulated to the accused and in such language that left no room for doubt that the latter fully

understood what was requested. In some instance, the accused even verbally replied to the requestdemonstrating that he also understood the nature and consequences of such request.49

In Asuncion vs. Court of Appeals,50 the apprehending officers sought the permission of petitioner tosearch the car, to which the latter agreed. Petitioner therein himself freely gave his consent to saidsearch. In People vs. Lacerna,51 the appellants who were riding in a taxi were stopped by twopolicemen who asked permission to search the vehicle and the appellants readily agreed. Inupholding the validity of the consented search, the Court held that appellant himself who was"urbanized in mannerism and speech" expressly said that he was consenting to the search as heallegedly had nothing to hide and had done nothing wrong. In People vs. Cuizon,52the accusedadmitted that they signed a written permission stating that they freely consented to the search of theirluggage by the NBI agents to determine if they were carrying shabu. In People vs. Montilla,53it washeld that the accused spontaneously performed affirmative acts of volition by himself opening the bag

without being forced or intimidated to do so, which acts should properly be construed as a clearwaiver of his right. In People vs. Omaweng,54the police officers asked the accused if they could seethe contents of his bag to which the accused said "you can see the contents but those are onlyclothings." Then the policemen asked if they could open and see it, and accused answered "you cansee it." The Court said there was a valid consented search.

In case of consented searches or waiver of the constitutional guarantee against obtrusive searches, itis fundamental that to constitute a waiver, it must first appear that (1) the right exists; (2) that theperson involved had knowledge, either actual or constructive, of the existence of such right; and (3)the said person had an actual intention to relinquish the right.55

In the case at bar, the evidence is lacking that the petitioner intentionally surrendered his right againstunreasonable searches. The manner by which the two police officers allegedly obtained the consent

of petitioner for them to conduct the search leaves much to be desired. When petitioner's vehicle wasflagged down, Sgt. Noceja approached petitioner and "told him I will look at the contents of hisvehicle and he answered in the positive." We are hard put to believe that by uttering those words,the police officers were asking or requesting for permission that they be allowed to search the vehicleof petitioner. For all intents and purposes, they were informing, nay, imposing upon herein petitionerthat they will search his vehicle. The "consent" given under intimidating or coercive circumstances isno consent within the purview of the constitutional guaranty. In addition, in cases where this Courtupheld the validity of consented search, it will be noted that the police authorities expressly asked, inno uncertain terms, for the consent of the accused to be searched. And the consent of the accusedwas established by clear and positive proof. In the case of herein petitioner, the statements of thepolice officers were not asking for his consent; they were declaring to him that they will look insidehis vehicle. Besides, it is doubtful whether permission was actually requested and granted becausewhen Sgt. Noceja was asked during his direct examination what he did when the vehicle of petitioner

stopped, he answered that he removed the cover of the vehicle and saw the aluminum wires. It wasonly after he was asked a clarificatory question that he added that he told petitioner he will inspect thevehicle. To our mind, this was more of an afterthought. Likewise, when Pat. de Castro was askedtwice in his direct examination what they did when they stopped the jeepney, his consistent answerwas that they searched the vehicle. He never testified that he asked petitioner for permission toconduct the search.56

Neither can petitioner's passive submission be construed as an implied acquiescence to thewarrantless search. InPeople vs. Barros,57appellant Barros, who was carrying a carton box, boardeda bus where two policemen were riding. The policemen inspected the carton and found marijuanainside. When asked who owned the box, appellant denied ownership of the box and failed to object tothe search. The Court there struck down the warrantless search as illegal and held that the accused isnot to be presumed to have waived the unlawful search conducted simply because he failed to object,

citing the ruling in the case ofPeople vs. Burgos,58to wit:

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"As the constitutional guaranty is not dependent upon any affirmative act of the citizen, thecourts do not place the citizens in the position of either contesting an officer's authority byforce, or waiving his constitutional rights; but instead they hold that a peaceful submission to asearch or seizure is not a consent or an invitation thereto, but is merely a demonstration ofregard for the supremacy of the law."

Casting aside the cable wires as evidence, the remaining evidence on record are insufficient tosustain petitioner's conviction. His guilt can only be established without violating the constitutionalright of the accused against unreasonable search and seizure.

WHEREFORE, the impugned decision is REVERSED and SET ASIDE, and accused Rudy Caballesis herebyACQUITTED of the crime charged. Cost de oficio.

SO ORDERED.

G.R. No. 104961 October 7, 1994

CONGRESSMAN FRANCISCO B. ANIAG, JR., petitioner, vs. COMMISSION ON ELECTIONS andDEPARTMENT OF JUSTICE SPECIAL TASK FORCE, respondents.

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BELLOSILLO, JR., J.:PETITIONER assails in this petition (for declaratory relief, certiorariand prohibition) the followingresolutions of the COMELEC: Reso. No. 2327 dated 26 December 1991 for being unconstitutional,and Reso. No. 92-0829 dated 6 April 1992 and Reso. No. 92-0999 dated 23 April 1992, for want oflegal and factual bases.

The factual backdrop: In preparation for the synchronized national and local elections scheduled on11 May 1992, the COMELEC issued on 11 December 1991 Resolution No. 2323 otherwise referred toas the "Gun Ban," promulgating rules and regulations on bearing, carrying and transporting offirearms or other deadly weapons, on security personnel or bodyguards, on bearing arms by membersof security agencies or police organizations, and organization or maintenance of reaction forcesduring the election period. 1Subsequently, on 26 December 1991 COMELEC issued Resolution No.2327 providing for the summary disqualification of candidates engaged in gunrunning, using andtransporting of firearms, organizing special strike forces, and establishing spot checkpoints. 2

On 10 January 1992, pursuant to the "Gun Ban," Mr. Serapio P. Taccad, Sergeant-at-Arms, House ofRepresentatives, wrote petitioner who was then Congressman of 1st District of Bulacan requestingthe return of the 2 firearms 3issued to him by the House of Representatives. Upon being advised ofthe request on 13 January 1992 by his staff, petitioner immediately instructed his driver, Ernesto

Arellano, to pick up the firearms from petitioner's house at Valle Verde and return them to Congress.

Meanwhile, at about five o'clock in the afternoon of the same day, the PNP headed by SeniorSuperintendent Danilo Cordero set up a checkpoint outside the Batasan Complex some 20 metersaway from its entrance. About thirty minutes later, the policemen manning the outpost flagged downthe car driven by Arellano as it approached the checkpoint. They searched the car and found thefirearms neatly packed in their gun cases and placed in a bag in the trunk of the car. Arellano wasthen apprehended and detained. He explained that he was ordered by petitioner to get the firearmsfrom the house and return them to Sergeant-at-Arms Taccad of the House of Representatives.

Thereafter, the police referred Arellano's case to the OCP for inquest. The referral did not includepetitioner as among those charged with an election offense. On 15 January 1992, the City Prosecutorordered the release of Arellano after finding the latter's sworn explanation meritorious. 4

On 28 January 1992, the City Prosecutor invited petitioner to shed light on the circumstancesmentioned in Arellano's sworn explanation. Petitioner not only appeared at the preliminaryinvestigation to confirm Arellano's statement but also wrote the City Prosecutor urging him toexonerate Arellano. He explained that Arellano did not violate the firearms ban as he in fact wascomplying with it when apprehended by returning the firearms to Congress; and, that he waspetitioner's driver, not a security officer nor a bodyguard. 5

On 6 March 1992, the Office of the City Prosecutor issued a resolution which, among other matters,recommended that the case against Arellano be dismissed and that the "unofficial" charge againstpetitioner be also dismissed. 6

Nevertheless, on 6 April 1992, upon recommendation of its Law Department, COMELEC issued

Resolution No. 92-0829 directing the filing of information against petitioner and Arellano for violationof Sec. 261, par. (q), of B.P. Blg. 881 otherwise known as the Omnibus Election Code, in relation toSec. 32 of R.A. No. 7166; 7and petitioner to show cause why he should not be disqualified fromrunning for an elective position, pursuant to COMELEC Resolution No. 2327, in relation to Sec. 32, 33and 35 of R.A. 7166, andSec. 52, par. (c), of B.P. Blg. 881. 8

On 13 April 1992, petitioner moved for