G.R. No. 104879 May 6, 1994 ELIZALDE MALALOAN and MARLON LUAREZ, Petitioners, Vs. COURT of APPEALS; HON. ANTONIO J. FINEZA, in H

G.R. No. 104879 May 6, 1994

ELIZALDE MALALOAN and MARLON LUAREZ, petitioners, vs. COURT OF APPEALS; HON. ANTONIO J. FINEZA, in his capacity as Presiding Judge, Branch 131, Regional Trial Court of Kalookan City; HON. TIRSO D.C. VELASCO, in his capacity as Presiding Judge, Branch 88, Regional Trial Court of Quezon City; and PEOPLE OF THE PHILIPPINES, respondents.

Alexander A. Padilla for petitioners.

The Solicitor General for the People of the Philippines.

REGALADO, J.:

Creative legal advocacy has provided this Court with another primae impressionis case through the present petition wherein the parties have formulated and now pose for resolution the following issue: Whether or not a court may take cognizance of an application for a search warrant in connection with an offense committed outside its territorial boundary and, thereafter, issue the warrant to conduct a search on a place outside the court's supposed territorial jurisdiction. 1

The factual background and judicial antecedents of this case are best taken from the findings of respondent Court of Appeals 2 on which there does not appear to be any dispute, to wit:

From the pleadings and supporting documents before the Court, it can be gathered that on March 22, 1990, 1st Lt. Absalon V. Salboro of the CAPCOM Northern Sector (now Central Sector) filed with the Regional Trial Court of Kalookan City an application for search warrant. The search warrant was sought for in connection with an alleged violation of P.D. 1866 (Illegal Possession of Firearms and Ammunitions) perpetrated at No. 25 Newport St., corner Marlboro St., Fairview, Quezon City. On March 23, 1990, respondent RTC Judge of Kalookan City issued Search Warrant No. 95-90. On the same day, at around 2:30 p.m., members of the CAPCOM, armed with subject search warrant, proceeded to the situs of the offense alluded to, where a labor seminar of the Ecumenical Institute for Labor Education and Research (EILER) was then taking place. According to CAPCOM's "Inventory of Property Seized," firearms, explosive materials and subversive documents, among others, were seized and taken during the search. And all the sixty-one (61) persons found within the premises searched were brought to Camp Karingal, Quezon City but most of them were later released, with the exception of the herein petitioners, EILER Instructors, who were indicated for violation of P.D. 1866 in Criminal Case No. Q-90-11757 before Branch 88 of the Regional Trial Court of Quezon City, presided over by respondent Judge Tirso D.C. Velasco. On July 10, 1990, petitioners presented a "Motion for Consolidation, Quashal of Search Warrant and For the Suppression of All Illegally Acquired Evidence" before the Quezon City court; and a "Supplemental Motion to the Motion for Consolidation, Quashal of Search Warrant and Exclusion of Evidence Illegally Obtained.

On September 21, 1990, the respondent Quezon City Judge issued the challenged order, consolidating subject cases but denying the prayer for the quashal of the search warrant under attack, the validity of which warrant was upheld; opining that the same falls under the category of Writs and Processes, within the contemplation of paragraph 3(b) of the Interim Rules and Guidelines, and can be served not only within the territorial jurisdiction of the issuing court but anywhere in the judicial region of the issuing court (National Capital Judicial Region);. . .

Petitioner's motion for reconsideration of the said Order under challenge, having been denied by the assailed Order of October 5, 1990, petitioners have come to this Court via the instant petition, raising the sole issue:

WHETHER OR NOT A COURT MAY TAKE COGNIZANCE OF AN APPLICATION FOR A SEARCH WARRANT IN CONNECTION WITH AN OFFENSE ALLEGEDLY COMMITTED OUTSIDE ITS TERRITORIAL JURISDICTION AND TO ISSUE A WARRANT TO CONDUCT A SEARCH ON A PLACE LIKEWISE OUTSIDE ITS TERRITORIAL JURISDICTION. xxx xxx xxx

Respondent Court of Appeals rendered judgment, 3 in effect affirming that of the trial court, by denying due course to the petition for certiorari and lifting the temporary restraining order it had issued on November 29, 1990 in connection therewith. This judgment of respondent court is now impugned in and sought to be reversed through the present recourse before us.

We are not favorably impressed by the arguments adduced by petitioners in support of their submissions. Their disquisitions postulate interpretative theories contrary to the letter and intent of the rules on search warrants and which could pose legal obstacles, if not dangerous doctrines, in the area of law enforcement. Further, they fail to validly distinguish, hence they do not convincingly delineate the difference, between the matter of (1) the court which has the competence to issue a search warrant under a given set of facts, and (2) the permissible jurisdictional range in the enforcement of such search warrant vis-a-vis the court's territorial jurisdiction. These issues while effectively cognate are essentially discrete since the resolution of one does not necessarily affect or preempt the other. Accordingly, to avoid compounding the seeming confusion, these questions shall be discussedseriatim.

Petitioners invoke the jurisdictional rules in the institution of criminal actions to invalidate the search warrant issued by the Regional Trial Court of Kalookan City because it is directed toward the seizure of firearms and ammunition allegedly cached illegally in Quezon City. This theory is sought to be buttressed by the fact that the criminal case against petitioners for violation of Presidential Decree No. 1866 was subsequently filed in the latter court. The application for the search warrant, it is claimed, was accordingly filed in a court of improper venue and since venue in criminal actions involves the territorial jurisdiction of the court, such warrant is void for having been issued by a court without jurisdiction to do so.

The basic flaw in this reasoning is in erroneously equating the application for and the obtention of a search warrant with the institution and prosecution of a criminal action in a trial court. It would thus categorize what is only a special criminal process, the power to issue which is inherent in all courts, as equivalent to a criminal action, jurisdiction over which is reposed in specific courts of indicated competence. It ignores the fact that the requisites, procedure and purpose for the issuance of a search warrant are completely different from those for the institution of a criminal action.

For, indeed, a warrant, such as a warrant of arrest or a search warrant, merely constitutes process. 4 A search warrant is defined in our jurisdiction as an order in writing issued in the name of the People of the Philippines signed by a judge and directed to a peace officer, commanding him to search for personal property and bring it before the court. 5 A search warrant is in the nature of a criminal process akin to a writ of discovery. It is a special and peculiar remedy, drastic in its nature, and made necessary because of a public necessity. 6

In American jurisdictions, from which we have taken our jural concept and provisions on search warrants, 7 such warrant is definitively considered merely as a process, generally issued by a court in the exercise of its ancillary jurisdiction, and not a criminal action to be entertained by a court pursuant to its original jurisdiction. We emphasize this fact for purposes of both issues as formulated in this opinion, with the catalogue of authorities herein.

Invariably, a judicial process is defined as a writ, warrant, subpoena, or other formal writing issued by authority of law; also the means of accomplishing an end, including judicial proceedings, 8 or all writs, warrants, summonses, andorders of courts of justice or judicial officers. 9 It is likewise held to include a writ, summons, or order issued in a judicial proceeding to acquire jurisdiction of a person or his property, to expedite the cause or enforce the judgment, 10 or a writ,warrant, mandate, or other process issuing from a court of justice. 11

2. It is clear, therefore, that a search warrant is merely a judicial process designed by the Rules to respond only to an incident in the main case, if one has already been instituted, or in anticipation thereof. In the latter contingency, as in the case at bar, it would involve some judicial clairvoyance to require observance of the rules as to where a criminal case may eventually be filed where, in the first place, no such action having as yet been instituted, it may ultimately be filed in a territorial jurisdiction other than that wherein the illegal articles sought to be seized are then located. This is aside from the consideration that a criminal action may be filed in different venues under the rules for delitos continuados or in those instances where different trial courts have concurrent original jurisdiction over the same criminal offense.

In fact, to illustrate the gravity of the problem which petitioners' implausible position may create, we need not stray far from the provisions of Section 15, Rule 110 of the Rules of Court on the venue of criminal actions and which we quote:

Sec. 15. Place where action to be instituted. —

(a) Subject to existing laws, in all criminal prosecutions the action shall be instituted and tried in the court of the municipality or territory wherein the offense was committed or any one of the essential ingredients thereof took place.

(b) Where an offense is committed on a railroad train, in an aircraft, or any other public or private vehicle while in the course of its trip, the criminal action may be instituted and tried in the court of any municipality or territory where such train, aircraft or other vehicle passed during such trip, including the place of departure and arrival.

(c) Where an offense is committed on board a vessel in the course of its voyage, the criminal action may be instituted and tried in the proper court of the first port of entry or of any municipality or territory through which the vessel passed during such voyage, subject to the generally accepted principles of international law.

(d) Other crimes committed outside of the Philippines but punishable therein under Article 2 of the Revised Penal Code shall be cognizable by the proper court in which the charge is first filed. (14a)

It would be an exacting imposition upon the law enforcement authorities or the prosecutorial agencies to unerringly determine where they should apply for a search warrant in view of the uncertainties and possibilities as to the ultimate venue of a case under the foregoing rules. It would be doubly so if compliance with that requirement would be under pain of nullification of said warrant should they file their application therefor in and obtain the same from what may later turn out to be a court not within the ambit of the aforequoted Section 15.

Our Rules of Court, whether of the 1940, 1964 or the present vintage, and, for that matter, the Judiciary Act of 1948 12 or the recent Judiciary Reorganization Act, 13 have never required the jurisdictional strictures that the petitioners' thesis would seek to be inferentially drawn from the silence of the reglementary provisions. On the contrary, we are of the view that said statutory omission was both deliberate and significant. It cannot but mean that the formulators of the Rules of Court, and even Congress itself, did not consider it proper or correct, on considerations of national policy and the pragmatics of experience, to clamp a legal manacle on those who would ferret out the evidence of a crime. For us to now impose such conditions or restrictions, under the guise of judicial interpretation, may instead be reasonably construed as trenching on judicial legislation. It would be tantamount to a judicial act of engrafting upon a law something that has been omitted but which someone believes ought to have been embraced therein. 14

Concededly, the problem of venue would be relatively easier to resolve if a criminal case has already been filed in a particular court and a search warrant is needed to secure evidence to be presented therein. Obviously, the court trying the criminal case may properly issue the warrant, upon proper application and due compliance with the requisites therefor, since such application would only be an incident in that case and which it can resolve in the exercise of its ancillary jurisdiction. If the contraband articles are within its territorial jurisdiction, there would appear to be no further complications. The jurisdictional problem would resurrect, however, where such articles are outside its territorial jurisdiction, which aspect will be addressed hereafter.

3. Coming back to the first issue now under consideration, petitioners, after discoursing on the respective territorial jurisdictions of the thirteen Regional Trial Courts which correspond to the thirteen judicial regions, 15invite our attention to the fact that this Court, pursuant to its authority granted by law, 16 has defined the territorial jurisdiction of each branch of a Regional Trial Court 17 over which the particular branch concerned shall exercise its authority. 18 From this, it is theorized that "only the branch of a Regional Trial Court which has jurisdiction over the place to be searched could grant an application for and issue a warrant to search that place." Support for such position is sought to be drawn from issuances of this Court, that is, Circular No. 13 issued on October 1, 1985, as amended by Circular No. 19 on August 4, 1987.

We reject that proposition. Firstly, it is evident that both circulars were not intended to be of general application to all instances involving search warrants and in all courts as would be the case if they had been adopted as part of the Rules of Court. These circulars were issued by the Court to meet a particular exigency, that is, as emergency guidelines on applications for search warrants filed only in the courts of Metropolitan Manila and other courts with multiple salas and only with respect to violations of the Anti-Subversion Act, crimes against public order under the Revised Penal Code, illegal possession of firearms and/or ammunitions, and violations of the Dangerous Drugs Act. In other words, the aforesaid theory on the court's jurisdiction to issue search warrants would not apply tosingle-sala courts and other crimes. Accordingly, the rule sought by petitioners to be adopted by the Court would actually result in a bifurcated procedure which would be vulnerable to legal and constitutional objections. For that matter, neither can we subscribe to petitioners' contention that Administrative Order No. 3 of this Court, supposedly "defining the limits of the territorial jurisdiction of the Regional Trial Courts," was the source of thesubject matter jurisdiction of, as distinguished from the exercise of jurisdiction by, the courts. As earlier observed, this administrative order was issued pursuant to the provisions of Section 18 of Batas Pambansa Blg. 129, the pertinent portion of which states:

Sec. 18. Authority to define territory appurtenant to each branch. — The Supreme Court shall define the territory over which a branch of the Regional Trial Court shall exercise its authority. The territory thus defined shall be deemed to be the territorial area of the branch concerned for purposes of determining the venue of all writs, proceedings or actions, whether civil or criminal, . . . . (Emphasis ours.)

Jurisdiction is conferred by substantive law, in this case Batas Pambansa Blg. 129, not by a procedural law and, much less, by an administrative order or circular. The jurisdiction conferred by said Act on regional trial courts and their judges is basically regional in scope. Thus, Section 17 thereof provides that "(e)very Regional Trial Judge shall be appointed to a region which shall be his permanent station," and he "may be assigned by the Supreme Court to any branch or city or municipality within the same region as public interest may require, and such assignment shall not be deemed an assignment to another station . . ." which, otherwise, would necessitate a new appointment for the judge.

In fine, Administrative Order No. 3 and, in like manner, Circulars Nos. 13 and 19, did not per se confer jurisdiction on the covered regional trial court or its branches, such that non-observance thereof would nullify their judicial acts. The administrative order merely defines the limits of the administrative area within which a branch of the court may exercise its authority pursuant to the jurisdiction conferred by Batas Pambansa Blg. 129. The circulars only allocated to the three executive judges the administrative areas for which they may respectively issue search warrants under the special circumstance contemplated therein, but likewise pursuant to the jurisdiction vested in them by Batas Pambansa Blg, 129.

Secondly, and more importantly, we definitely cannot accept the conclusion that the grant of power to the courts mentioned therein, to entertain and issue search warrants where the place to be searched is within their territorial jurisdiction, was intended to exclude other courts from exercising the same power. It will readily be noted that Circular No. 19 was basically intended to provide prompt action on applications for search warrants. Its predecessor, Administrative Circular No. 13, had a number of requirements, principally a raffle of the applications for search warrants, if they had been filed with the executive judge, among the judges within his administrative area. Circular No. 19 eliminated, by amendment, that required raffle and ordered instead that such applications should immediately be "taken cognizance of and acted upon by the Executive Judges of the Regional Trial Court, Metropolitan Trial Court, and Municipal Trial Court under whose jurisdiction the place to be searched is located," or by their substitutes enumerated therein.

Evidently, that particular provision of Circular No. 19 was never intended to confer exclusive jurisdiction on said executive judges. In view of the fact, however, that they were themselves directed to personally act on the applications, instead of farming out the same among the other judges as was the previous practice, it was but necessary and practical to require them to so act only on applications involving search of places located within their respective territorial jurisdictions. The phrase above quoted was, therefore, in the nature of an allocation in the assignment of applications among them, in recognition of human capabilities and limitations, and not a mandate for the exclusion of all other courts. In truth, Administrative Circular No. 13 even specifically envisaged and anticipated the non-exclusionary nature of that provision, thus:

4. If, in the implementation of the search warrant properties are seized thereunder and the corresponding case is filed in court, said case shall be distributed conformably with Circular No. 7 dated September 23, 1974, of this Court, and thereupon tried and decided by the judge to whom it has been assigned, and not necessarily by the judge who issued the search warrant. (Emphasis supplied.)

It is, therefore, incorrect to say that only the court which has jurisdiction over the criminal case can issue the search warrant, as would be the consequence of petitioners' position that only the branch of the court with jurisdiction over the place to be searched can issue a warrant to search the same. It may be conceded, as a matter of policy, that where a criminal case is pending, the court wherein it was filed, or the assigned branch thereof, has primary jurisdiction to issue the search warrant; and where no such criminal case has yet been filed, that the executive judges or their lawful substitutes in the areas and for the offenses contemplated in Circular No. 19 shall have primary jurisdiction.

This should not, however, mean that a court whose territorial jurisdiction does not embrace the place to be searched cannot issue a search warrant therefor, where the obtention of that search warrant is necessitated and justified by compelling considerations of urgency, subject, time and place. Conversely, neither should a search warrant duly issued by a court which has jurisdiction over a pending criminal case, or one issued by an executive judge or his lawful substitute under the situations provided for by Circular No. 19, be denied enforcement or nullified just because it was implemented outside the court's territorial jurisdiction.

This brings us, accordingly, to the second issue on the permissible jurisdictional range of enforcement of search warrants.

II As stated in limine, the affiliated issue raised in this case is whether a branch of a regional trial court has the authority to issue a warrant for the search of a place outside its territorial jurisdiction. Petitioners insistently answer the query in the negative. We hold otherwise.

1. We repeat what we have earlier stressed: No law or rule imposes such a limitation on search warrants, in the same manner that no such restriction is provided for warrants of arrest. Parenthetically, in certain states within the American jurisdiction, there were limitations of the time wherein a warrant of arrest could be enforced. In our jurisdiction, no period is provided for the enforceability of warrants of arrest, and although within ten days from the delivery of the warrant of arrest for execution a return thereon must be made to the issuing judge, 19 said warrant does not become functus officio but is enforceable indefinitely until the same is enforced or recalled. On the other hand, the lifetime of a search warrant has been expressly set in our Rules at ten days 20 but there is no provision as to the extent of the territory wherein it may be enforced, provided it is implemented on and within the premises specifically described therein which may or may not be within the territorial jurisdiction of the issuing court.

We make the foregoing comparative advertence to emphasize the fact that when the law or rules would provide conditions, qualifications or restrictions, they so state. Absent specific mention thereof, and the same not being inferable by necessary implication from the statutory provisions which are presumed to be complete and expressive of the intendment of the framers, a contrary interpretation on whatever pretext should not be countenanced.

A bit of legal history on this contestation will be helpful. The jurisdictional rule heretofore was that writs and processes of the so-called inferior courts could be enforced outside the province only with the approval of the former court of first instance. 21 Under the Judiciary Reorganization Act, the enforcement of such writs and processes no longer needs the approval of the regional trial court. 22 On the other hand, while, formerly, writs and processes of the then courts of first instance were enforceable throughout the Philippines, 23 under the Interim or Transitional Rules and Guidelines, certain specified writs issued by a regional trial court are now enforceable only within its judicial region. In the interest of clarity and contrast, it is necessary that said provision be set out in full:

3. Writs and processes. —

(a) Writs of certiorari, prohibition mandamus, quo warranto, habeas corpus and injunction issued by a regional trial court may be enforced in any part of the region.

(b) All other processes, whether issued by a regional trial court or a metropolitan trial court, municipal trial court or municipal circuit trial court may be served anywhere in the Philippines, and, in the last three cases, without a certification by the judge of the regional trial court. (Emphasis ours.) We feel that the foregoing provision is too clear to be further belabored or enmeshed in unwarranted polemics. The rule enumerates the writs and processes which, even if issued by a regional trial court, are enforceable only within its judicial region. In contrast, it unqualifiedly provides that all other writs and processes, regardless of which court issued the same, shall be enforceable anywhere in the Philippines. As earlier demonstrated, a search warrant is but a judicial process, not a criminal action. No legal provision, statutory or reglementary, expressly or impliedly provides a jurisdictional or territorial limit on its area of enforceability. On the contrary, the above-quoted provision of the interim Rules expressly authorizes its enforcement anywhere in the country, since it is not among the processes specified in paragraph (a) and there is no distinction or exception made regarding the processes contemplated in paragraph (b).

2. This is but a necessary and inevitable consequence of the nature and purpose of a search warrant. The Court cannot be blind to the fact that it is extremely difficult, as it undeniably is, to detect or elicit information regarding the existence and location of illegally possessed or prohibited articles. The Court is accordingly convinced that it should not make the requisites for the apprehension of the culprits and the confiscation of such illicit items, once detected, more onerous if not impossible by imposing further niceties of procedure or substantive rules of jurisdiction through decisional dicta. For that matter, we are unaware of any instance wherein a search warrant was struck down on objections based on territorial jurisdiction. In the landmark case of Stonehill, et al. vs. Diokno,et al., 24 the searches in the corporate offices in Manila and the residences in Makati of therein petitioners were conducted pursuant to search warrants issued by the Quezon City and Pasig branches of the Court of First Instance of Rizal and by the Municipal Courts of Manila and Quezon City, 25 but the same were never challenged on jurisdictional grounds although they were subsequently nullified for being general warrants.

3. A clarion call supposedly of libertarian import is further sounded by petitioners, dubiously invoking the constitutional proscription against illegal searches and seizures. We do not believe that the enforcement of a search warrant issued by a court outside the territorial jurisdiction wherein the place to be searched is located would create a constitutional question. Nor are we swayed by the professed apprehension that the law enforcement authorities may resort to what could be a permutation of forum shopping, by filing an application for the warrant with a "friendly" court. It need merely be recalled that a search warrant is only a process, not an action. Furthermore, the constitutional mandate is translated into specifically enumerated safeguards in Rule 126 of the 1985 Rules on Criminal Procedure for the issuance of a search warrant, 26 and all these have to be observed regardless of whatever court in whichever region is importuned for or actually issues a search warrant. Said requirements, together with the ten-day lifetime of the warrant 27 would discourage resort to a court in another judicial region, not only because of the distance but also the contingencies of travel and the danger involved, unless there are really compelling reasons for the authorities to do so. Besides, it does seem odd that such constitutional protests have not been made against warrants of arrest which are enforceable indefinitely and anywhere although they involve, not only property and privacy, but persons and liberty.

On the other hand, it is a matter of judicial knowledge that the authorities have to contend now and then with local and national criminal syndicates of considerable power and influence, political or financial in nature, and so pervasive as to render foolhardy any attempt to obtain a search warrant in the very locale under their sphere of control. Nor should we overlook the fact that to do so will necessitate the transportation of applicant's witnesses to and their examination in said places, with the attendant risk, danger and expense. Also, a further well-founded precaution, obviously born of experience and verifiable data, is articulated by the court a quo, as quoted by respondent court:

This court is of the further belief that the possible leakage of information which is of utmost importance in the issuance of a search warrant is secured (against) where the issuing magistrate within the region does not hold court sessions in the city or municipality, within the region, where the place to be searched is located. 28

The foregoing situations may also have obtained and were taken into account in the foreign judicial pronouncement that, in the absence of statutory restrictions, a justice of the peace in one district of the county may issue a search warrant to be served in another district of the county and made returnable before the justice of still another district or another court having jurisdiction to deal with the matters involved. 29 In the present state of our law on the matter, we find no such statutory restrictions both with respect to the court which can issue the search warrant and the enforcement thereof anywhere in the Philippines.

III

Concern is expressed over possible conflicts of jurisdiction (or, more accurately, in the exercise of jurisdiction) where the criminal case is pending in one court and the search warrant is issued by another court for the seizure of personal property intended to be used as evidence in said criminal case. This arrangement is not unknown or without precedent in our jurisdiction. In fact, as hereinbefore noted, this very situation was anticipated in Circular No. 13 of this Court under the limited scenario contemplated therein.

Nonetheless, to put such presentiments to rest, we lay down the following policy guidelines:

1. The court wherein the criminal case is pending shall have primary jurisdiction to issue search warrants necessitated by and for purposes of said case. An application for a search warrant may be filed with another court only under extreme and compelling circumstances that the applicant must prove to the satisfaction of the latter court which may or may not give due course to the application depending on the validity of the justification offered for not filing the same in the court with primary jurisdiction thereover.

2. When the latter court issues the search warrant, a motion to quash the same may be filed in and shall be resolved by said court, without prejudice to any proper recourse to the appropriate higher court by the party aggrieved by the resolution of the issuing court. All grounds and objections then available, existent or known shall be raised in the original or subsequent proceedings for the quashal of the warrant, otherwise they shall be deemed waived.

3. Where no motion to quash the search warrant was filed in or resolved by the issuing court, the interested party may move in the court where the criminal case is pending for the suppression as evidence of the personal property seized under the warrant if the same is offered therein for said purpose. Since two separate courts with different participations are involved in this situation, a motion to quash a search warrant and a motion to suppress evidence are alternative and not cumulative remedies. In order to prevent forum shopping, a motion to quash shall consequently be governed by the omnibus motion rule, provided, however, that objections not available, existent or known during the proceedings for the quashal of the warrant may be raised in the hearing of the motion to suppress. The resolution of the court on the motion to suppress shall likewise be subject to any proper remedy in the appropriate higher court.

4. Where the court which issued the search warrant denies the motion to quash the same and is not otherwise prevented from further proceeding thereon, all personal property seized under the warrant shall forthwith be transmitted by it to the court wherein the criminal case is pending, with the necessary safeguards and documentation therefor.

5. These guidelines shall likewise be observed where the same criminal offense is charged in different informations or complaints and filed in two or more courts with concurrent original jurisdiction over the criminal action. Where the issue of which court will try the case shall have been resolved, such court shall be considered as vested with primary jurisdiction to act on applications for search warrants incident to the criminal case.

WHEREFORE, on the foregoing premises, the instant petition is DENIED and the assailed judgment of respondent Court of Appeals in CA-G.R. SP No. 23533 is hereby AFFIRMED.

SO ORDERED. Narvasa, C.J., Cruz, Feliciano, Bidin, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug and Kapunan, JJ., concur.

Padilla, J., took no part.

Separate Opinions

DAVIDE, JR., J.,

The majority opinion enunciates these two principles:

1. Before the criminal action is filed with the appropriate court, a court which has no territorial jurisdiction over the crime may validly entertain an application for and thereafter issue a search warrant in connection with the commission of such crime; and

2. After the filing of the criminal action, the court with which it was filed has primary jurisdiction to issue search warrants necessitated by and for purposes of said case; however, under extreme and compelling circumstances, another court may issue a search warrant in connection with said case.

I am unable to agree with the first and with the exception to the second.

A.. By the very definition of a search warrant which the majority opinion adopts, it is clear to me that only a court having territorial jurisdiction over the crime committed can validly entertain an application for and issue a search warrant in connection with said crime. The majority opinion says:

For, indeed, a warrant, such as a warrant of arrest or a search warrant, merely constitutes process. A search warrant is defined in our jurisdiction as an order in writing issued in the name of the People of the Philippines signed by a judge and directed to a peace officer, commanding him to search for personal property and bring it before the court. A search warrant is in the nature of a criminal process akin to a writ of discovery. It is a special and peculiar remedy, drastic in nature, and made necessary because of a public necessity.

In American jurisdictions, from which we have taken our jural concept and provisions on search warrants, such warrant is definitively considered merely as a process generally issued by a court in the exercise of its ancillary jurisdiction, and not a criminal action to be entertained by a court pursuant to its original jurisdiction. We emphasize this fact for purposes of both issues as formulated in this opinion, with the catalogue of authorities herein. Invariably, a judicial process is defined as a writ, warrant, subpoena, or other formal writing issued by authority of law; also the means of accomplishing an end, including judicial proceedings, or all writs, warrants, summonses, and orders of courts of justice or judicial officers. It is likewise held to include a writ, summons, or order in a judicial proceeding to acquire jurisdiction of a person or his property, to expedite the cause or enforce judgment, or a writ, warrant, mandate, or other processes issuing from a court of justice.

What are to be underscored in the foregoing definition or disquisition on the concept of a search warrant are the following: (a) it is "in the nature of a criminal process akin to a writ of discovery," (b) it is generally issued by a court "in the exercise of its ancillary jurisdiction," and (c) it is "designed by the Rules to respond only to an incident in the main case . . . or in anticipation thereof." All of these are premised on the assumption that the court entertaining the application for and issuing the search warrant has jurisdiction over the main case, meaning, of course, the crime in connection with whose commission the warrant was issued.

The writ of discovery is the discovery in federal criminal cases governed by the Federal Rules of Criminal Procedure. Rule 16 thereof provides:

Upon motion of the defendant at any time after the filing of the indictment or information, the court may order the attorney for the government to permit the defendant to inspect and copy or photograph designated books, papers, documents or tangible objects, obtained from or belonging to the defendant or obtained from others by seizure or process, upon a showing that the items sought may be material to the presentation of his defense and that the request is reasonable. (4 Federal Practice and Procedure with Forms, Rules Edition, 1951 ed., 124).

Note that the required motion is filed after the filing of the indictment or information.

"Ancillary," in reference to jurisdiction can only mean in aid of or incidental to an original jurisdiction. Ancillary jurisdiction is defined as follows:

Ancillary jurisdiction. Power of court to adjudicate and determine matters incidental to the exercise of its primary jurisdiction of an action.

Under "ancillary jurisdiction doctrine" federal district court acquires jurisdiction of case or controversy as an entirety and may, as incident to disposition of matter properly before it, possess jurisdiction to decide other matters raised by case, though district court could not have taken cognizance of them if they had been independently presented. . . ."Ancillary jurisdiction" of federal court generally involves either proceedings which are concerned with pleadings, processes, records or judgments of court in principal case or proceedings which affect property already in court's custody. . . . (Black's Law Dictionary 79 [5th ed., 1979]).

"Incident in the main case" also presupposes a main case which, perforce, must be within the court's jurisdiction.Incident is defined thus:

Incident. Used both substantively and adjectively of a thing which, either usually or naturally and inseparably, depends upon, appertains to, or follows another that is more worthy. Used as a noun, it denotes anything which inseparably belongs to, or is connected with, or inherent in, another thing, called the "principal". Also, less strictly, it denotes anything which is usually connected with another, or connected for some purposes, though not inseparably. . . . (Id., at 686)

Reliance upon Section 3 of the Interim or Transitional Rules and Guidelines Implementing B.P. Blg. 129 which reads:

3. Writs and processes. — (a) Writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction issued by a regional trial court may be enforced in any part of the region.

The absence of any express statutory provision prohibiting a court from issuing a search warrant in connection with a crime committed outside its territorial jurisdiction should not be construed as a grant of blanket authority to any court of justice in the country to issue a search warrant in connection with a crime committed outside its territorial jurisdiction. The majority view suggests or implies that a municipal trial court in Tawi-Tawi, Basilan, or Batanes can validly entertain an application for a search warrant and issue one in connection with a crime committed in Manila. Elsewise stated, all courts in the Philippines, including the municipal trial courts, can validly issue a search warrant in connection with a crime committed anywhere in the Philippines. Simply put, all courts of justice in the Philippines have, for purposes of issuing a search warrant, jurisdiction over the entire archipelago.

I cannot subscribe to this view since, in the first place, a search warrant is but an incident to a main case and involves the exercise of an ancillary jurisdiction therefore, the authority to issue it must necessarily be co-extensive with the court's territorial jurisdiction. To hold otherwise would be to add an exception to the statutory provisions defining the territorial jurisdiction of the various courts of the country, which would amount to judicial legislation. The territorial jurisdiction of the courts is determined by law, and a reading of Batas Pambansa Blg. 129 discloses that the territorial jurisdiction of regional trial courts, metropolitan trial courts, municipal trial courts and municipal circuit trial courts are confined to specific territories. In the second place, the majority view may legitimize abuses that would result in the violation the civil rights of an accused or the infliction upon him of undue and unwarranted burdens and inconvenience as when, for instance, an accused who is a resident of Basco, Batanes, has to file a motion to quash a search warrant issued by the Metropolitan Trial Court of Manila in connection with an offense he allegedly committed in Itbayat, Batanes.

Nor can Stonehill vs. Diokno (20 SCRA 383) be an authoritative confirmation of the unlimited or unrestricted power of any court to issue search warrants in connection with crimes committed outside its territorial jurisdiction. While it may be true that the forty-two search warrants involved therein were issued by several Judges — specifically Judges (a) Amado Roan of the City Court of Manila, (b) Roman Cansino of the City Court of Manila, (c) Hermogenes Caluag of the Court of First Instance of Rizal (Quezon City Branch), (d) Eulogio Mencias of the Court of First Instance of Rizal (Pasig Branch), and (e) Damian Jimenez of the City Court of Quezon City (Footnote 2, page 387) — there is no definite showing that the forty-two search warrants were for the searches and seizures of properties outside the territorial jurisdiction of their respective courts. The warrants were issued against the petitioners and corporations of which they were officers and some of the corporations enumerated in Footnote 7 have addresses in Manila and Makati. (pp. 388-89). Rizal (which includes Makati) and Quezon City both belonged to the Seventh Judicial District. That nobody challenged on jurisdictional ground the issuance of these search warrants is no argument in favor of the unlimited power of a court to issue search warrants.

B. I have serious misgivings on the exception to the second principle where another court may, because of extreme and compelling circumstances, issue a search warrant in connection with a criminal case pending in an appropriate court. To illustrate this exception, the Municipal Trial Court of Argao, Cebu, may validly issue a warrant for the search of a house in Davao City and the seizure of any property therein that may have been used in committing an offense in Manila already the subject of an information filed with the Metropolitan Trial Court of Manila. I submit that the exception violates the settled principle that even in cases of concurrent jurisdiction, the first court which acquires jurisdiction over the case acquires it to the exclusion of the other. (People vs. Fernando, 23 SCRA 867, 870 [1968]). This being so, it is with more reason that a court which does not have concurrent jurisdiction with the first which had taken cognizance of the case does not also have the authority to issue writs or processes, including search warrants, in connection with the pending case. Moreover, since the issuance of a search warrant is an incident to a main case or is an exercise of the ancillary jurisdiction of a court, the court where the main case is filed has exclusive jurisdiction over all incidents thereto and in the issuance of all writs and processes in connection therewith. Furthermore, instead of serving the ends of justice, the exception may provide room for unwarranted abuse of the judicial process, wreak judicial havoc and procedural complexities which effective law enforcement apparently cannot justify. I cannot conceive of any extreme and compelling circumstance which the court that first acquired jurisdiction over the case cannot adequately meet within its broad powers and authority.

In the light of the foregoing, and after re-examining my original view in this case, I respectfully submit that:

1. Any court within whose territorial jurisdiction a crime was committed may validly entertain an application for and issue a search warrant in connection with said crime. However, in the National Capital Judicial Region, Administrative Circulars No. 13 of 1 October 1985, and No. 19 of 4 August 1987 must be observed.

2. After the criminal complaint or information is filed with the appropriate court, search warrants in connection with the crime charged may only be issued by said court.

# Separate Opinions

DAVIDE, JR., J.:

The majority opinion enunciates these two principles:

I am unable to agree with the first and with the exception to the second.

Invariably, a judicial process is defined as a writ, warrant, subpoena, or other formal writing issued by authority of law; also the means of accomplishing an end, including judicial proceedings, or all writs, warrants, summonses, and orders of courts of justice or judicial officers. It is likewise held to include a writ, summons, or order in a judicial proceeding to acquire jurisdiction of a person or his property, to expedite the cause or enforce judgment, or a writ, warrant, mandate, or other processes issuing from a court of justice.

What are to be underscored in the foregoing definition or disquisition on the concept of a search warrant are the following: (a) it is "in the nature of a criminal process akin to a writ of discovery," (b) it is generally issued by a court "in the exercise of its ancillary jurisdiction," and (c) it is "designed by the Rules to respond only to an incident in the main case... or in anticipation thereof." All of these are premised on the assumption that the court entertaining the application for and issuing the search warrant has jurisdiction over the main case, meaning, of course, the crime in connection with whose commission the warrant was issued.

The writ of discovery is the discovery in federal criminal cases governed by the Federal Rules of Criminal Procedure. Rule 16 thereof provides:

Note that the required motion is filed after the filing of the indictment or information.

"Ancillary," in reference to jurisdiction can only mean in aid of or incidental to an original jurisdiction. Ancillary jurisdiction is defined as follows:

Ancillary jurisdiction. Power of court to adjudicate and determine matters incidental to the exercise of its primary jurisdiction of an action.

Under "ancillary jurisdiction doctrine" federal district court acquires jurisdiction of case or controversy as an entirety and may, as incident to disposition of matter property before it, possess jurisdiction to decide other matters raised by case, though district court could not have taken cognizance of them if they had been independently presented. . . . "Ancillary jurisdiction" of federal court generally involves either proceedings which are concerned with pleadings, processes, records or judgments of court in principal case or proceedings which affect property already in court's custody. . . . (Black's Law Dictionary 79 [5th ed., 1979]).

"Incident in the main case" also presupposes a main case which, perforce, must be within the court's jurisdiction.Incident is defined thus:

Incident. Used both substantively and adjectively of a thing which, either usually or naturally and inseparably, depends upon, appertains to, or follows another that is more worthy. Used as a noun, it denotes anything which inseparably belongs to, or is connected with, or inherent in, another thing, called the 'principal'. Also, less strictly, it denotes anything which is usually connected with another, or connected for some purposes, though not inseparably. . . . (Id., at 686)

Reliance upon Section 3 of the Interim or Transitional Rules and Guidelines Implementing B.P. Blg. 129 which reads:

3. Writs and processes. — (a) Writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction issued by a regional trial court may be enforced in any part of the region.

(b) All other processes, whether issued by a regional trial court or a metropolitan trial court, municipal trial court or municipal circuit trial court may be served anywhere in the Philippines, and, in the last three cases, without a certification by the judge of the regional trial court. is misplaced for the reason that said section refers to writs or processes issued by a court in a casepending before it and not to a case yet to be filed with it or pending in another court. The absence of any express statutory provision prohibiting a court from issuing a search warrant in connection with a crime committed outside its territorial jurisdiction should not be construed as a grant of blanket authority to any court of justice in the country to issue a search warrant in connection with a crime committed outside its territorial jurisdiction. The majority view suggests or implies that a municipal trial court in Tawi-Tawi, Basilan, or Batanes can validly entertain an application for a search warrant and issue one in connection with a crime committed in Manila. Elsewise stated, all courts in the Philippines, including the municipal trial courts, can validly issue a search warrant in connection with a crime committed anywhere in the Philippines. Simply put, all courts of justice in the Philippines have, for purposes of issuing a search warrant, jurisdiction over the entire archipelago.

In the light of the foregoing, and after re-examining my original view in this case, I respectfully submit that:

2. After the criminal complaint or information is filed with the appropriate court, search warrants in connection with the crime charged may only be issued by said court.

Katz v. United States, 389 U.S. 347 (1967)

Katz v. United States

No. 35

Argued October 17, 1967

Decided December 18, 1967 389 U.S. 347

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

Petitioner was convicted under an indictment charging him with transmitting wagering information by telephone across state lines in violation of 18 U.S.C. § 1084. Evidence of petitioner's end of the conversations, overheard by FBI agents who had attached an electronic listening and recording device to the outside of the telephone booth from which the calls were made, was introduced at the trial. The Court of Appeals affirmed the conviction, finding that there was no Fourth Amendment violation, since there was "no physical entrance into the area occupied by" petitioner.

Held:

1. The Government's eavesdropping activities violated the privacy upon which petitioner justifiably relied while using the telephone booth, and thus constituted a "search and seizure" within the meaning of the Fourth Amendment. Pp. 389 U. S. 350-353.

(a) The Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements. Silverman v. United States,365 U. S. 505, 365 U. S. 511. P.389 U. S. 353.

(b) Because the Fourth Amendment protects people, rather than places, its reach cannot turn on the presence or absence of a physical intrusion into any given enclosure. The "trespass" doctrine of Olmstead v. United States,277 U. S. 438, and Goldman v. United States,316 U. S. 129, is no longer controlling. Pp. 389 U. S. 351, 389 U. S. 353.

2. Although the surveillance in this case may have been so narrowly circumscribed that it could constitutionally have been authorized in advance, it was not in fact conducted pursuant to the warrant procedure which is a constitutional precondition of such electronic surveillance. Pp. 389 U. S. 354-359.

369 F.2d 130, reversed.

Page 389 U. S. 348

MR. JUSTICE STEWART delivered the opinion of the Court.

The petitioner was convicted in the District Court for the Southern District of California under an eight-count indictment charging him with transmitting wagering information by telephone from Los Angeles to Miami and Boston, in violation of a federal statute. [Footnote 1] At trial, the Government was permitted, over the petitioner's objection, to introduce evidence of the petitioner's end of telephone conversations, overheard by FBI agents who had attached an electronic listening and recording device to the outside of the public telephone booth from which he had placed his calls. In affirming his conviction, the Court of Appeals rejected the contention that the recordings had been obtained in violation of the Fourth Amendment,

Page 389 U. S. 349 because "[t]here was no physical entrance into the area occupied by [the petitioner]." [Footnote 2] We granted certiorari in order to consider the constitutional questions thus presented. [Footnote 3]

The petitioner has phrased those questions as follows:

"A. Whether a public telephone booth is a constitutionally protected area so that evidence obtained by attaching an electronic listening recording device to the top of such a booth is obtained in violation of the right to privacy of the user of the booth. "

Page 389 U. S. 350

"B. Whether physical penetration of a constitutionally protected area is necessary before a search and seizure can be said to be violative of the Fourth Amendment to the United States Constitution."

We decline to adopt this formulation of the issues. In the first place, the correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase "constitutionally protected area." Secondly, the Fourth Amendment cannot be translated into a general constitutional "right to privacy." That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. [Footnote 4] Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. [Footnote 5] But the protection of a person's general right to privacy -- his right to be let alone by other people [Footnote 6] -- is, like the

Page 389 U. S. 351 protection of his property and of his very life, left largely to the law of the individual States. [Footnote 7]

Because of the misleading way the issues have been formulated, the parties have attached great significance to the characterization of the telephone booth from which the petitioner placed his calls. The petitioner has strenuously argued that the booth was a "constitutionally protected area." The Government has maintained with equal vigor that it was not. [Footnote 8] But this effort to decide whether or not a given "area," viewed in the abstract, is "constitutionally protected" deflects attention from the problem presented by this case. [Footnote 9] For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States,385 U. S. 206, 385 U. S. 210; United States v. Lee,274 U. S. 559, 274 U. S. 563. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

Page 389 U. S. 352

See Rios v. United States,364 U. S. 253; Ex parte Jackson,96 U. S. 727, 96 U. S. 733.

The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye -- it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, [Footnote 10] in a friend's apartment, [Footnote 11] or in a taxicab, [Footnote 12] a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.

The Government contends, however, that the activities of its agents in this case should not be tested by Fourth Amendment requirements, for the surveillance technique they employed involved no physical penetration of the telephone booth from which the petitioner placed his calls. It is true that the absence of such penetration was at one time thought to foreclose further Fourth Amendment inquiry, Olmstead v. United States,277 U. S. 438, 277 U. S. 457, 277 U. S. 464, 277 U. S. 466; Goldman v. United States,316 U. S. 129, 316 U. S. 134-136, for that Amendment was thought to limit only searches and seizures of tangible

Page 389 U. S. 353 property. [Footnote 13] But "[t]he premise that property interests control the right of the Government to search and seize has been discredited." Warden v. Hayden,387 U. S. 294, 387 U. S. 304. Thus, although a closely divided Court supposed in Olmstead that surveillance without any trespass and without the seizure of any material object fell outside the ambit of the Constitution, we have since departed from the narrow view on which that decision rested. Indeed, we have expressly held that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements, overheard without any "technical trespass under . . . local property law." Silverman v. United States,365 U. S. 505, 365 U. S. 511. Once this much is acknowledged, and once it is recognized that the Fourth Amendment protects people -- and not simply "areas" -- against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.

We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the "trespass" doctrine there enunciated can no longer be regarded as controlling. The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth, and thus constituted a "search and seizure" within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance.

Page 389 U. S. 354

The question remaining for decision, then, is whether the search and seizure conducted in this case complied with constitutional standards. In that regard, the Government's position is that its agents acted in an entirely defensible manner: they did not begin their electronic surveillance until investigation of the petitioner's activities had established a strong probability that he was using the telephone in question to transmit gambling information to persons in other States, in violation of federal law. Moreover, the surveillance was limited, both in scope and in duration, to the specific purpose of establishing the contents of the petitioner's unlawful telephonic communications. The agents confined their surveillance to the brief periods during which he used the telephone booth, [Footnote 14] and they took great care to overhear only the conversations of the petitioner himself. [Footnote 15]

Accepting this account of the Government's actions as accurate, it is clear that this surveillance was so narrowly circumscribed that a duly authorized magistrate, properly notified of the need for such investigation, specifically informed of the basis on which it was to proceed, and clearly apprised of the precise intrusion it would entail, could constitutionally have authorized, with appropriate safeguards, the very limited search and seizure that the Government asserts, in fact, took place. Only last Term we sustained the validity of

Page 389 U. S. 355 such an authorization, holding that, under sufficiently "precise and discriminate circumstances," a federal court may empower government agents to employ a concealed electronic device "for the narrow and particularized purpose of ascertaining the truth of the . . . allegations" of a "detailed factual affidavit alleging the commission of a specific criminal offense." Osborn v. United States,385 U. S. 323, 385 U. S. 329-330. Discussing that holding, the Court in Berger v. New York,388 U. S. 41, said that "the order authorizing the use of the electronic device" in Osborn"afforded similar protections to those . . . of conventional warrants authorizing the seizure of tangible evidence." Through those protections, "no greater invasion of privacy was permitted than was necessary under the circumstances." Id. at 388 U. S. 57. [Footnote 16] Here, too, a similar

Page 389 U. S. 356 judicial order could have accommodated "the legitimate needs of law enforcement" [Footnote 17] by authorizing the carefully limited use of electronic surveillance.

The Government urges that, because its agents relied upon the decisions in Olmstead andGoldman, and because they did no more here than they might properly have done with prior judicial sanction, we should retroactively validate their conduct. That we cannot do. It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer. They were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail of all that had been seized. In the absence of such safeguards, this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive

Page 389 U. S. 357 means consistent with that end. Searches conducted without warrants have been held unlawful "notwithstanding facts unquestionably showing probable cause," Agnello v. United States,269 U. S. 20, 269 U. S. 33, for the Constitution requires "that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police. . . ." Wong Sun v. United States,371 U. S. 471, 371 U. S. 481-482. "Over and again, this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes," United States v. Jeffers,342 U. S. 48, 342 U. S. 51, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment [Footnote 18] -- subject only to a few specifically established and well delineated exceptions. [Footnote 19]

It is difficult to imagine how any of those exceptions could ever apply to the sort of search and seizure involved in this case. Even electronic surveillance substantially contemporaneous with an individual's arrest could hardly be deemed an "incident" of that arrest. [Footnote 20] Page 389 U. S. 358

Nor could the use of electronic surveillance without prior authorization be justified on grounds of "hot pursuit." [Footnote 21] And, of course, the very nature of electronic surveillance precludes its use pursuant to the suspect's consent. [Footnote 22]

The Government does not question these basic principles. Rather, it urges the creation of a new exception to cover this case. [Footnote 23] It argues that surveillance of a telephone booth should be exempted from the usual requirement of advance authorization by a magistrate upon a showing of probable cause. We cannot agree. Omission of such authorization

"bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the . . . search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment."

Beck v. Ohio,379 U. S. 89, 379 U. S. 96. And bypassing a neutral predetermination of the scope of a search leaves individuals secure from Fourth Amendment

Page 389 U. S. 359 violations "only in the discretion of the police." Id. at 379 U. S. 97.

These considerations do not vanish when the search in question is transferred from the setting of a home, an office, or a hotel room to that of a telephone booth. Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures. The government agents here ignored "the procedure of antecedent justification . . . that is central to the Fourth Amendment," [Footnote 24] a procedure that we hold to be a constitutional precondition of the kind of electronic surveillance involved in this case. Because the surveillance here failed to meet that condition, and because it led to the petitioner's conviction, the judgment must be reversed.

It is so ordered.

MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.

[Footnote 1]

18 U.S.C. § 1084. That statute provides in pertinent part:

"(a) Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest, or for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information assisting in the placing of bets or wagers, shall be fined not more than $10,000 or imprisoned not more than two years, or both."

"(b) Nothing in this section shall be construed to prevent the transmission in interstate or foreign commerce of information for use in news reporting of sporting events or contests, or for the transmission of information assisting in the placing of bets or wagers on a sporting event or contest from a State where betting on that sporting event or contest is legal into a State in which such betting is legal."

[Footnote 2]

369 F.2d 130, 134

[Footnote 3]

386 U. S. 954. The petition for certiorari also challenged the validity of a warrant authorizing the search of the petitioner's premises. In light of our disposition of this case, we do not reach that issue.

We find no merit in the petitioner's further suggestion that his indictment must be dismissed. After his conviction was affirmed by the Court of Appeals, he testified before a federal grand jury concerning the charges involved here. Because he was compelled to testify pursuant to a grant of immunity, 48 Stat. 1096, as amended, 47 U.S.C. § 409(l), it is clear that the fruit of his testimony cannot be used against him in any future trial. But the petitioner asks for more. He contends that. his conviction must be vacated and the charges against him dismissed lest he be "subjected to [a] penalty . . . on account of [a] . . . matter . . . concerning which he [was] compelled . . . to testify. . . ." 47 U.S.C. § 409(l). Frank v. United States, 347 F.2d 486. We disagree. In relevant part, § 409(l) substantially repeats the language of the Compulsory Testimony Act of 1893, 27 Stat. 443, 49 U.S.C. § 46, which was Congress' response to this Court's statement that an immunity statute can supplant the Fifth Amendment privilege against self-incrimination only if it affords adequate protection from future prosecution or conviction.Counselman v. Hitchcock,142 U. S. 547, 142 U. S. 585-586. The statutory provision here involved was designed to provide such protection, see Brown v. United States,359 U. S. 41, 359 U. S. 45-46, not to confer immunity from punishment pursuant to a prior prosecution and adjudication of guilt. Cf. Regina v. United States,364 U. S. 507, 364 U. S. 513-514.

[Footnote 4]

"The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. . . . And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home." Griswold v. Connecticut,381 U. S. 479, 381 U. S. 509 (dissenting opinion of MR. JUSTICE BLACK).

[Footnote 5]

The First Amendment, for example, imposes limitations upon governmental abridgment of "freedom to associate and privacy in one's associations." NAACP v. Alabama,357 U. S. 449,357 U. S. 462. The Third Amendment's prohibition against the unconsented peacetime quartering of soldiers protects another aspect of privacy from governmental intrusion. To some extent, the Fifth Amendment too "reflects the Constitution's concern for ...... the right of each individual "to a private enclave where he may lead a private life."'" Tehan v. Shott,382 U. S. 406,382 U. S. 416. Virtually every governmental action interferes with personal privacy to some degree. The question in each case is whether that interference violates a command of the United States Constitution.

[Footnote 6]

See Warren & Brandeis, The Right to Privacy, 4 Harv.L.Rev.193 (1890).

[Footnote 7]

See, e.g., Time, Inc. v. Hill,385 U. S. 374. Cf. Breard v. Alexandria,341 U. S. 622; Kovacs v. Cooper,336 U. S. 77.

[Footnote 8]

In support of their respective claims, the parties have compiled competing lists of "protected areas" for our consideration. It appears to be common ground that a private home is such an area, Weeks v. United States,232 U. S. 383, but that an open field is not. Hester v. United States,265 U. S. 57. Defending the inclusion of a telephone booth in his list the petitioner citesUnited States v. Stone, 232 F.Supp. 396, and United States v. Madison, 32 L.W. 2243 (D.C. Ct.Gen.Sess.). Urging that the telephone booth should be excluded, the Government finds support in United States v. Borgese, 235 F.Supp. 286.

[Footnote 9]

It is true that this Court has occasionally described its conclusions in terms of "constitutionally protected areas," see, e.g., Silverman v. United States,365 U. S. 505, 365 U. S. 510, 365 U. S. 512; Lopez v. United States,373 U. S. 427, 373 U. S. 438-439; Berger v. New York,388 U. S. 41, 388 U. S. 57, 388 U. S. 59, but we have never suggested that this concept can serve as a talismanic solution to every Fourth Amendment problem.

[Footnote 10]

Silverthorne Lumber Co. v. United States,251 U. S. 385. [Footnote 11]

Jones v. United States,362 U. S. 257.

[Footnote 12]

Rios v United States,364 U. S. 253.

[Footnote 13]

See Olmstead v. United States,277 U. S. 438, 277 U. S. 464-466. We do not deal in this case with the law of detention or arrest under the Fourth Amendment.

[Footnote 14]

Based upon their previous visual observations of the petitioner, the agents correctly predicted that he would use the telephone booth for several minutes at approximately the same time each morning. The petitioner was subjected to electronic surveillance only during this predetermined period. Six recordings, averaging some three minutes each, were obtained and admitted in evidence. They preserved the petitioners end of conversations concerning the placing of bets and the receipt of wagering information.

[Footnote 15]

On the single occasion when the statements of another person were inadvertently intercepted, the agents refrained from listening to them.

[Footnote 16]

Although the protections afforded the petitioner in Osborn were "similar . . . to those . . . of conventional warrants," they were not identical. A conventional warrant ordinarily serves to notify the suspect of an intended search. But if Osborn had been told in advance that federal officers intended to record his conversations, the point of making such recordings would obviously have been lost; the evidence in question could not have been obtained. In omitting any requirement of advance notice, the federal court that authorized electronic surveillance in Osborn simply recognized, as has this Court, that officers need not announce their purpose before conducting an otherwise authorized search if such an announcement would provoke the escape of the suspect or the destruction of critical evidence. See Ker v. California,374 U. S. 23, 374 U. S. 37-41.

Although some have thought that this "exception to the notice requirement where exigent circumstances are present," id. at 374 U. S. 39, should be deemed inapplicable where police enter a home before its occupants are aware that officers are present, id. at 374 U. S. 55-58 (opinion of MR. JUSTICE BRENNAN), the reasons for such a limitation have no bearing here. However true it may be that "[i]nnocent citizens should not suffer the shock, fright or embarrassment attendant upon an unannounced police intrusion," id. at 374 U. S. 57, and that "the requirement of awareness . . . serves to minimize the hazards of the officers' dangerous calling," id. at 374 U. S. 57-58, these considerations are not relevant to the problems presented by judicially authorized electronic surveillance.

Nor do the Federal Rules of Criminal Procedure impose an inflexible requirement of prior notice.Rule 41(d) does require federal officers to serve upon the person searched a copy of the warrant and a receipt describing the material obtained, but it does not invariably require that this be done before the search takes place. Nordelli v. United States, 24 F.2d 665, 666-667.

Thus, the fact that the petitioner in Osborn was unaware that his words were being electronically transcribed did not prevent this Court from sustaining his conviction, and did not prevent the Court in Berger from reaching the conclusion that the use of the recording device sanctioned inOsborn was entirely lawful. 388 U. S. 41, 388 U. S. 57.

[Footnote 17]

Lopez v. United States,373 U. S. 427, 373 U. S. 464 (dissenting opinion of MR. JUSTICE BRENNAN).

[Footnote 18]

See, e.g., Jones v. United States,357 U. S. 493, 357 U. S. 497-499; Rios v. United States,364 U. S. 253, 364 U. S. 261; Chapman v. United States,365 U. S. 610, 365 U. S. 613-615; Stoner v. California,376 U. S. 483, 376 U. S. 486-487.

[Footnote 19]

See, e.g., Carroll v. United States,267 U. S. 132, 267 U. S. 153, 156; McDonald v. United States,335 U. S. 451, 335 U. S. 454-456; Brinegar v. United States,338 U. S. 160, 338 U. S. 174-177; Cooper v. California,386 U. S. 58; Warden v. Hayden,387 U. S. 294, 387 U. S. 298-300.

[Footnote 20]

In Agnello v. United States,269 U. S. 20, 269 U. S. 30, the Court stated:

"The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted."

Whatever one's view of "the longstanding practice of searching for other proofs of guilt within the control of the accused found upon arrest," United States v. Rabinowitz,339 U. S. 56, 339 U. S. 61; cf. id. at 339 U. S. 71-79 (dissenting opinion of Mr. Justice Frankfurter), the concept of an "incidental" search cannot readily be extended to include surreptitious surveillance of an individual either immediately before, or immediately after, his arrest.

[Footnote 21]

Although

"[t]he Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others,"

Warden v. Hayden,387 U. S. 294, 387 U. S. 298-299, there seems little likelihood that electronic surveillance would be a realistic possibility in a situation so fraught with urgency.

[Footnote 22]

A search to which an individual consents meets Fourth Amendment requirements, Zap v. United States,328 U. S. 624, but, of course, "the usefulness of electronic surveillance depends on lack of notice to the suspect." Lopez v. United States,373 U. S. 427, 373 U. S. 463 (dissenting opinion of MR. JUSTICE BRENNAN).

[Footnote 23]

Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.

[Footnote 24]

See Osborn v. United States,385 U. S. 323, 385 U. S. 330.

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN joins, concurring.

While I join the opinion of the Court, I feel compelled to reply to the separate concurring opinion of my Brother WHITE, which I view as a wholly unwarranted green light for the Executive Branch to resort to electronic eavesdropping without a warrant in cases which the Executive Branch itself labels "national security" matters.

Neither the President nor the Attorney General is a magistrate. In matters where they believe national security may be involved, they are not detached, disinterested, and neutral as a court or magistrate must be. Under the separation of powers created by the Constitution, the Executive Branch is not supposed to be neutral and disinterested. Rather it should vigorously investigate

Page 389 U. S. 360 and prevent breaches of national security and prosecute those who violate the pertinent federal laws. The President and Attorney General are properly interested parties, cast in the role of adversary, in national security cases. They may even be the intended victims of subversive action. Since spies and saboteurs are as entitled to the protection of the Fourth Amendment as suspected gamblers like petitioner, I cannot agree that, where spies and saboteurs are involved adequate protection of Fourth Amendment rights is assured when the President and Attorney General assume both the position of "adversary and prosecutor" and disinterested, neutral magistrate.

There is, so far as I understand constitutional history, no distinction under the Fourth Amendment between types of crimes. Article III, § 3, gives "treason" a very narrow definition, and puts restrictions on its proof. But the Fourth Amendment draws no lines between various substantive offenses. The arrests in cases of "hot pursuit" and the arrests on visible or other evidence of probable cause cut across the board, and are not peculiar to any kind of crime.

I would respect the present lines of distinction, and not improvise because a particular crime seems particularly heinous. When the Framers took that step, as they did with treason, the worst crime of all, they made their purpose manifest.

MR. JUSTICE HARLAN, concurring.

I join the opinion of the Court, which I read to hold only (a) that an enclosed telephone booth is an area where, like a home, Weeks v. United States,232 U. S. 383, and unlike a field, Hester v. United States,265 U. S. 57, a person has a constitutionally protected reasonable expectation of privacy; (b) that electronic, as well as physical, intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment,

Page 389 U. S. 361 and (c) that the invasion of a constitutionally protected area by federal authorities is, as the Court has long held, presumptively unreasonable in the absence of a search warrant.

As the Court's opinion states, "the Fourth Amendment protects people, not places." The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a "place." My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable." Thus, a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the "plain view" of outsiders are not "protected," because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable. Cf. Hester v. United States, supra.

The critical fact in this case is that "[o]ne who occupies it, [a telephone booth] shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume" that his conversation is not being intercepted. Ante at 389 U. S. 352. The point is not that the booth is "accessible to the public" at other times, ante at 389 U. S. 351, but that it is a temporarily private place whose momentary occupants' expectations of freedom from intrusion are recognized as reasonable. Cf. Rios v. United States,364 U. S. 253.

In Silverman v. United States,365 U. S. 505, we held that eavesdropping accomplished by means of an electronic device that penetrated the premises occupied by petitioner was a violation of the Fourth Amendment.

Page 389 U. S. 362

That case established that interception of conversations reasonably intended to be private could constitute a "search and seizure." and that the examination or taking of physical property was not required. This view of the Fourth Amendment was followed in Wong Sun v. United States,371 U. S. 471, at 371 U. S. 485, and Berger v. New York,388 U. S. 41, at 51. Also compare Osborn v. United States,385 U. S. 323, at 385 U. S. 327. In Silverman, we found it unnecessary to reexamine Goldman v. United States,316 U. S. 129, which had held that electronic surveillance accomplished without the physical penetration of petitioner's premises by a tangible object did not violate the Fourth Amendment. This case requires us to reconsider Goldman, and I agree that it should now be overruled. * Its limitation on Fourth Amendment protection is, in the present day, bad physics as well as bad law, for reasonable expectations of privacy may be defeated by electronic as well as physical invasion.

Finally, I do not read the Court's opinion to declare that no interception of a conversation one-half of which occurs in a public telephone booth can be reasonable in the absence of a warrant. As elsewhere under the Fourth Amendment, warrants are the general rule, to which the legitimate needs of law enforcement may demand specific exceptions. It will be time enough to consider any such exceptions when an appropriate occasion presents itself, and I agree with the Court that this is not one.

* I also think that the course of development evinced by Silverman. supra, Wong Sun., supra, Berger, supra, and today's decision must be recognized as overruling Olmstead v. United States,277 U. S. 438, which essentially rested on the ground that conversations were not subject to the protection of the Fourth Amendment.

MR. JUSTICE WHITE, concurring. I agree that the official surveillance of petitioner's telephone conversations in a public booth must be subjected

Page 389 U. S. 363 to the test of reasonableness under the Fourth Amendment and that, on the record now before us, the particular surveillance undertaken was unreasonable absent a warrant properly authorizing it. This application of the Fourth Amendment need not interfere with legitimate needs of law enforcement.*

In joining the Court's opinion, I note the Court's acknowledgment that there are circumstances in which it is reasonable to search without a warrant. In this connection, in footnote 23 the Court points out that today's decision does not reach national security cases Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. See Berger v. New York,388 U. S. 41, 388 U. S. 112-118 (1967) (WHITE, J.,

Page 389 U. S. 364 dissenting). We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.

* In previous cases, which are undisturbed by today's decision, the Court has upheld, as reasonable under the Fourth Amendment, admission at trial of evidence obtained (1) by an undercover police agent to whom a defendant speaks without knowledge that he is in the employ of the police, Hoffa v. United States,385 U. S. 293 (1966); (2) by a recording device hidden on the person of such an informant, Lopez v. United States,373 U. S. 427 (1963); Osborn v. United States,385 U. S. 323 (1966), and (3) by a policeman listening to the secret microwave transmissions of an agent conversing with the defendant in another location, On Lee v. United States,343 U. S. 747 (1952). When one man speaks to another, he takes all the risks ordinarily inherent in so doing, including the risk that the man to whom he speaks will make public what he has heard. The Fourth Amendment does not protect against unreliable (or law-abiding) associates. Hoffa v. United States, supra. It is but a logical and reasonable extension of this principle that a man take the risk that his hearer, free to memorize what he hears for later verbatim repetitions, is instead recording it or transmitting it to another. The present case deals with an entirely different situation, for as the Court emphasizes the petitioner "sought to exclude . . . the uninvited ear," and spoke under circumstances in which a reasonable person would assume that uninvited ears were not listening.

MR. JUSTICE BLACK, dissenting. If I could agree with the Court that eavesdropping carried on by electronic means (equivalent to wiretapping) constitutes a "search" or "seizure," I would be happy to join the Court's opinion For on that premise, my Brother STEWART sets out methods in accord with the Fourth Amendment to guide States in the enactment and enforcement of laws passed to regulate wiretapping by government. In this respect, today's opinion differs sharply from Berger v. New York,388 U. S. 41, decided last Term, which held void on its face a New York statute authorizing wiretapping on warrants issued by magistrates on showings of probable cause. The Berger case also set up what appeared to be insuperable obstacles to the valid passage of such wiretapping laws by States. The Court's opinion in this case, however, removes the doubts about state power in this field and abates to a large extent the confusion and near-paralyzing effect of the Berger holding. Notwithstanding these good efforts of the Court, I am still unable to agree with its interpretation of the Fourth Amendment.

My basic objection is two-fold: (1) I do not believe that the words of the Amendment will bear the meaning given them by today's decision, and (2) I do not believe that it is the proper role of this Court to rewrite the Amendment in order "to bring it into harmony with the times," and thus reach a result that many people believe to be desirable.

Page 389 U. S. 365

While I realize that an argument based on the meaning of words lacks the scope, and no doubt the appeal, of broad policy discussions and philosophical discourses on such nebulous subjects as privacy, for me, the language of the Amendment is the crucial place to look in construing a written document such as our Constitution. The Fourth Amendment says that

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized."

The first clause protects "persons, houses, papers, and effects against unreasonable searches and seizures. . . ." These words connote the idea of tangible things with size, form, and weight, things capable of being searched, seized, or both. The second clause of the Amendment still further establishes its Framers' purpose to limit its protection to tangible things by providing that no warrants shall issue but those "particularly describing the place to be searched, and the persons or things to be seized." A conversation overheard by eavesdropping, whether by plain snooping or wiretapping, is not tangible and, under the normally accepted meanings of the words, can neither be searched nor seized. In addition the language of the second clause indicates that the Amendment refers not only to something tangible so it can be seized, but to something already in existence, so it can be described. Yet the Court's interpretation would have the Amendment apply to overhearing future conversations, which, by their very nature, are nonexistent until they take place. How can one "describe" a future conversation, and, if one cannot, how can a magistrate issue a warrant to eavesdrop one in the future? It is argued that information showing what

Page 389 U. S. 366 is expected to be said is sufficient to limit the boundaries of what later can be admitted into evidence; but does such general information really meet the specific language of the Amendment, which says "particularly describing"? Rather than using language in a completely artificial way, I must conclude that the Fourth Amendment simply does not apply to eavesdropping.

Tapping telephone wires, of course, was an unknown possibility at the time the Fourth Amendment was adopted. But eavesdropping (and wiretapping is nothing more than eavesdropping by telephone) was, as even the majority opinion in Berger, supra, recognized,

"an ancient practice which, at common law, was condemned as a nuisance. 4 Blackstone, Commentaries 168. In those days, the eavesdropper listened by naked ear under the eaves of houses or their windows, or beyond their walls seeking out private discourse."

388 U.S. at 388 U. S. 45. There can be no doubt that the Framers were aware of this practice, and, if they had desired to outlaw or restrict the use of evidence obtained by eavesdropping, I believe that they would have used the appropriate language to do so in the Fourth Amendment. They certainly would not have left such a task to the ingenuity of language-stretching judges. No one, it seems to me, can read the debates on the Bill of Rights without reaching the conclusion that its Framers and critics well knew the meaning of the words they used, what they would be understood to mean by others, their scope and their limitations. Under these circumstances, it strikes me as a charge against their scholarship, their common sense and their candor to give to the Fourth Amendment's language the eavesdropping meaning the Court imputes to it today.

I do not deny that common sense requires, and that this Court often has said, that the Bill of Rights' safeguards should be given a liberal construction. This

Page 389 U. S. 367 principle, however, does not justify construing the search and seizure amendment as applying to eavesdropping or the "seizure" of conversations. The Fourth Amendment was aimed directly at the abhorred practice of breaking in, ransacking and searching homes and other buildings and seizing people's personal belongings without warrants issued by magistrates. The Amendment deserves, and this Court has given it, a liberal construction in order to protect against warrantless searches of buildings and seizures of tangible personal effects. But, until today, this Court has refused to say that eavesdropping comes within the ambit of Fourth Amendment restrictions.See, e.g., Olmstead v. United States,277 U. S. 438 (1928), and Goldman v. United States,316 U. S. 129 (1942).

So far, I have attempted to state why I think the words of the Fourth Amendment prevent its application to eavesdropping. It is important now to show that this has been the traditional view of the Amendment's scope since its adoption, and that the Court's decision in this case, along with its amorphous holding in Berger last Term, marks the first real departure from that view.

The first case to reach this Court which actually involved a clear-cut test of the Fourth Amendment's applicability to eavesdropping through a wiretap was, of course, Olmstead, supra.In holding that the interception of private telephone conversations by means of wiretapping was not a violation of the Fourth Amendment, this Court, speaking through Mr. Chief Justice Taft, examined the language of the Amendment and found, just as I do now, that the words could not be stretched to encompass overheard conversations:

"The Amendment itself shows that the search is to be of material things -- the person, the house, his papers or his effects. The description of the warrant necessary to make the proceeding lawful, is

Page 389 U. S. 368 that it must specify the place to be searched and the person or things to be seized. . . ."

"* * * *"

"Justice Bradley in the Boyd case [Boyd v. United States,116 U. S. 616], and Justice Clark[e] in the Gouled case [Gouled v. United States,255 U. S. 298], said that the Fifth Amendment and the Fourth Amendment were to be liberally construed to effect the purpose of the framers of the Constitution in the interest of liberty. But that cannot justify enlargement of the language employed beyond the possible practical meaning of houses, persons, papers, and effects, or so to apply the words search and seizure as to forbid hearing or sight."

277 U.S. at 277 U. S. 464-465.

Goldman v. United States,316 U. S. 129, is an even clearer example of this Court's traditional refusal to consider eavesdropping as being covered by the Fourth Amendment. There, federal agents used a detectaphone, which was placed on the wall of an adjoining room, to listen to the conversation of a defendant carried on in his private office and intended to be confined within the four walls of the room. This Court, referring to Olmstead, found no Fourth Amendment violation.

It should be noted that the Court in Olmstead based its decision squarely on the fact that wiretapping or eavesdropping does not violate the Fourth Amendment. As shown supra in the cited quotation from the case, the Court went to great pains to examine the actual language of the Amendment, and found that the words used simply could not be stretched to cover eavesdropping. That there was no trespass was not the determinative factor, and indeed the Court, in citing Hester v. United States,265 U. S. 57, indicated that, even where there was a trespass, the Fourth Amendment does not automatically apply to evidence obtained by "hearing or

Page 389 U. S. 369 sight." The Olmstead majority characterized Hester as holding

"that the testimony of two officers of the law who trespassed on the defendant's land, concealed themselves one hundred yards away from his house, and saw him come out and hand a bottle of whiskey to another, was not inadmissible. While there was a trespass, there was no search of person, house, papers or effects."

277 U.S. at 277 U. S. 465. Thus, the clear holding of the Olmstead and Goldman cases, undiluted by any question of trespass, is that eavesdropping, in both its original and modern forms, is not violative of the Fourth Amendment.

While my reading of the Olmstead and Goldman cases convinces me that they were decided on the basis of the inapplicability of the wording of the Fourth Amendment to eavesdropping, and not on any trespass basis, this is not to say that unauthorized intrusion has not played an important role in search and seizure cases. This Court has adopted an exclusionary rule to bar evidence obtained by means of such intrusions. As I made clear in my dissenting opinion inBerger v. New York,388 U. S. 41, 388 U. S. 76, I continue to believe that this exclusionary rule formulated in Weeks v. United States,232 U. S. 383, rests on the "supervisory power" of this Court over other federal courts and is not rooted in the Fourth Amendment. See Wolf v. Colorado, concurring opinion, 338 U. S. 338 U.S. 25, 338 U. S. 39, at 40. See also Mapp v. Ohio,concurring opinion, 367 U. S. 367 U.S. 643, 367 U. S. 661-666. This rule has caused the Court to refuse to accept evidence where there has been such an intrusion regardless of whether there has been a search or seizure in violation of the Fourth Amendment. As this Court said in Lopez v. United States,373 U. S. 427, 373 U. S. 438-439

"The Court has in the past sustained instances of 'electronic eavesdropping' against constitutional challenge when devices have been used to enable government agents to overhear conversations which would have been beyond the reach of the human ear [citing Page 389 U. S. 370

Olmstead and Goldman]. It has been insisted only that the electronic device not be planted by an unlawful physical invasion of a constitutionally protected area. Silverman v. United States."

To support its new interpretation of the Fourth Amendment, which, in effect, amounts to a rewriting of the language, the Court's opinion concludes that "the underpinnings of Olmstead andGoldman have been . . . eroded by our subsequent decisions. . . ." But the only cases cited as accomplishing this "eroding" are Silverman v. United States,365 U. S. 505, and Warden v. Hayden,387 U. S. 294. Neither of these cases "eroded" Olmstead or Goldman.Silverman is an interesting choice, since there the Court expressly refused to reexamine the rationale ofOlmstead or Goldman although such a reexamination was strenuously urged upon the Court by the petitioners' counsel. Also, it is significant that, in Silverman, as the Court described it, "the eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied by the petitioners," 365 U.S. at 365 U. S. 509, thus calling into play the supervisory exclusionary rule of evidence. As I have pointed out above, where there is an unauthorized intrusion, this Court has rejected admission of evidence obtained regardless of whether there has been an unconstitutional search and seizure. The majority's decision here relies heavily on the statement in the opinion that the Court "need not pause to consider whether or not there was a technical trespass under the local property law relating to party walls." (At 365 U. S. 511.) Yet this statement should not becloud the fact that, time and again, the opinion emphasizes that there has been an unauthorized intrusion:

"For a fair reading of the record in this case shows that the eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied by the petitioners."

(At 365 U. S. 509, emphasis added.) "Eavesdropping

Page 389 U. S. 371 accomplished by means of such a physical intrusion is beyond the pale of even those decisions. . . ." (At 365 U. S. 509, emphasis added.) "Here . . . the officers overheard the petitioners' conversations only by usurping part of the petitioners' house or office. . . ." (At 365 U. S. 511, emphasis added.) "[D]ecision here . . . is based upon the reality of an actual intrusion. . . ." (At365 U. S. 512, emphasis added.) "We find no occasion to reexamine Goldman here, but we decline to go beyond it, by even a fraction of an inch." (At 365 U. S. 512, emphasis added.) As if this were not enough, Justices Clark and Whittaker concurred with the following statement: "In view of the determination by the majority that the unauthorized physical penetration into petitioners' premises constituted sufficient trespass to remove this case from the coverage of earlier decisions, we feel obliged to join in the Court's opinion."

(At 365 U. S. 513, emphasis added.) As I made clear in my dissent in Berger, the Court inSilverman held the evidence should be excluded by virtue of the exclusionary rule, and "I would not have agreed with the Court's opinion in Silverman . . . had I thought that the result depended on finding a violation of the Fourth Amendment. . . ." 388 U.S. at 388 U. S. 79-80. In light of this and the fact that the Court expressly refused to reexamine Olmstead and Goldman, I cannot read Silverman as overturning the interpretation stated very plainly in Olmstead and followed inGoldman that eavesdropping is not covered by the Fourth Amendment.

The other "eroding" case cited in the Court's opinion is Warden v. Hayden,387 U. S. 294. It appears that this case is cited for the proposition that the Fourth Amendment applies to "intangibles," such as conversation, and the following ambiguous statement is quoted from the opinion: "The premise that property interests control the right of the Government to search and seize has been discredited." 387 U.S. at 387 U. S. 304. But far from being concerned

Page 389 U. S. 372 with eavesdropping, Warden v. Hayden upholds the seizure of clothes, certainly tangibles by any definition. The discussion of property interests was involved only with the common law rule that the right to seize property depended upon proof of a superior property interest.

Thus, I think that, although the Court attempts to convey the impression that, for some reason, today Olmstead and Goldman are no longer good law, it must face up to the fact that these cases have never been overruled, or even "eroded." It is the Court's opinions in this case andBerger which, for the first time since 1791, when the Fourth Amendment was adopted, have declared that eavesdropping is subject to Fourth Amendment restrictions and that conversations can be "seized."* I must align myself with all those judges who up to this year have never been able to impute such a meaning to the words of the Amendment.

Page 389 U. S. 373

Since I see no way in which the words of the Fourth Amendment can be construed to apply to eavesdropping, that closes the matter for me. In interpreting the Bill of Rights, I willingly go as far as a liberal construction of the language takes me, but I simply cannot in good conscience give a meaning to words which they have never before been thought to have and which they certainly do not have in common ordinary usage. I will not distort the words of the Amendment in order to "keep the Constitution up to date" or "to bring it into harmony with the times." It was never meant that this Court have such power, which, in effect, would make us a continuously functioning constitutional convention.

With this decision the Court has completed, I hope, its rewriting of the Fourth Amendment, which started only recently when the Court began referring incessantly to the Fourth Amendment not so much as a law against unreasonable searches and seizures as one to protect an individual's privacy. By clever word juggling, the Court finds it plausible to argue that language aimed specifically at searches and seizures of things that can be searched and seized may, to protect privacy, be applied to eavesdropped evidence of conversations that can neither be searched nor seized. Few things happen to an individual that do not affect his privacy in one way or another. Thus, by arbitrarily substituting the Court's language, designed to protect privacy, for the Constitution's language, designed to protect against unreasonable searches and seizures, the Court has made the Fourth Amendment its vehicle for holding all laws violative of the Constitution which offend the Court's broadest concept of privacy. As I said in Griswold v. Connecticut,381 U. S. 479,

"The Court talks about a constitutional 'right of privacy' as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the 'privacy'

Page 389 U. S. 374 of individuals. But there is not."

(Dissenting opinion, at 381 U. S. 508.) I made clear in that dissent my fear of the dangers involved when this Court uses the "broad, abstract and ambiguous concept" of "privacy" as a "comprehensive substitute for the Fourth Amendment's guarantee against unreasonable searches and seizures.'" (See generally dissenting opinion at 381 U. S. 507-527.)

The Fourth Amendment protects privacy only to the extent that it prohibits unreasonable searches and seizures of "persons, houses, papers, and effects." No general right is created by the Amendment so as to give this Court the unlimited power to hold unconstitutional everything which affects privacy. Certainly the Framers, well acquainted as they were with the excesses of governmental power, did not intend to grant this Court such omnipotent lawmaking authority as that. The history of governments proves that it is dangerous to freedom to repose such powers in courts.

For these reasons, I respectfully dissent.

* The first paragraph of my Brother HARLAN's concurring opinion is susceptible of the interpretation, although probably not intended, that this Court "has long held" eavesdropping to be a violation of the Fourth Amendment and therefore "presumptively unreasonable in the absence of a search warrant." There is no reference to any long line of cases, but simply a citation to Silverman, and several cases following it, to establish this historical proposition. In the first place, as I have indicated in this opinion, I do not read Silverman as holding any such thing, and, in the second place, Silverman was decided in 1961. Thus, whatever it held, it cannot be said it "has [been] long held." I think my Brother HARLAN recognizes this later in his opinion when he admits that the Court must now overrule Olmstead and Goldman. In having to overrule these cases in order to establish the holding the Court adopts today, it becomes clear that the Court is promulgating new doctrine instead of merely following what it "has long held." This is emphasized by my Brother HARLAN's claim that it is "bad physics" to adhere to Goldman. Such an assertion simply illustrates the propensity of some members of the Court to rely on their limited understanding of modern scientific subjects in order to fit the Constitution to the times and give its language a meaning that it will not tolerate.

PEOPLE OF THE PHILIPPINES, represented by Chief State Prosecutor JOVENCITO ZUÑO, State Prosecutor G.R. No. 161083 GERONIMO SY and Prosecution Attorney IRWIN MARAYA,

Petitioners, Present:

CARPIO, J., Chairperson, - versus - NACHURA,

PERALTA,

ABAD, and

MENDOZA, JJ. HON. BASILIO R. GABO, in his capacity as Presiding Judge of the Regional Trial Court of Malolos, Bulacan, Branch II and WILSON CUA TING, EDWARD NGO YAO, WILLY SO TAN and CAROL FERNAN

ORTEGA,

Respondents.

Promulgated:

August 3, 2010

D E C I S I O N

PERALTA, J.:

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

The facts of the case, as culled from the petition, are as follows:

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

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

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

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

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

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

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

Chit Chua, an employee at the Accounting Department of Sanyoware, claimed in her sworn statement[10] that Sanyoware was indebted to a number of banks and corporations and that Sanyoware’s outstanding obligations amounted to P95,000,000.00 toP96,000,000.00. Jennifer Chua Reyes, a secretary at Sanyoware, alleged in her sworn statement[11] that Sanyoware has an outstanding loan of P180,000,000.00 to various individuals.

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

SPO1 Valeriano Dizon (SPO1 Dizon), a fireman assigned at the Meycauayan Fire Station, Bulacan, stated in his sworn statement[13] that he conducted the examination of the fire that occurred on May 14, 2001. He alleged that he took the statement of the witnesses, but Sr. Supt. Enrique Linsangan of the BFP Regional Office, Region III, took the witnesses’ statements from him before he could prepare the Final Investigation Report (FIR). Thereafter, Sr. Supt. Linsangan summoned him, Inspector Allan Barredo and BFP C/Ins. Absalon Zipagan, Municipal Fire Marshall of Bocaue, Bulacan, and showed them the copy of the FIR and made them sign it. Inspector Barredo, in his affidavit,[14] corroborated SPO1 Dizon’s allegation as to how Sr. Supt. Lansangan summoned and ordered them to sign the FIR.

In their defense, respondents submitted a Counter-Affidavit[15] to refute the allegations made against them, the significant portions of which read:

7. Principally on the basis of the “Salaysay” of Richard Madrideo attached Annex “A” to the Affidavit of Carol Ortega Fernan dated September 22, 2001, and on the basis of the “Sinumpaang Salaysay” of Ricky A. Hista and of the “Karagdagang Salaysay” of Bobby Bacang and on the basis of our inquiry from others, we have good reason to believe that one claiming to be a representative of CRM Adjustment Corporation had indeed offered money and jobs to persons to give perjured statements to make it appear that there was arson and that we committed it. (The Affidavit of Carol Ortega Fernan, together with the “Salaysay” of Richard Madrideo as Annex “A” thereto, the “Sinumpaang Salaysay” of Ricky A. Hista and the “Karagdagang Salaysay” of Bobby Bacang were all submitted last September 22, 2001 to the Inter Agency Anti-Arson Task Force, Office of the Secretary, Department of the Interior and Local Government.

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

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

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

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

12. Richard Madrideo executed a “Sinumpaang Salaysay” before SPO4 Regino D. Raquipiso, Jr. last June 29, 2001 wherein he claims, among others, that there was a simultaneous fire that occurred in two places in Sanyoware warehouse and in a place in Unitedware. However, said claim is a blatant lie and perjured statement.

13. In his “Salaysay” (Annex “A” to the Affidavit of Carol Ortega Fernan submitted last September 22, 2001 to the Inter Agency Anti-Arson Task Force), Richard Madrideo admitted to the fact that he received the sum of P1,000.00 from Atty. Lugtu and that he subsequently received another sum of P15,000.00 from Atty. Lugtu. Richard Madrideo was also given a cellphone and was promised a job. According to said “Salaysay,” Atty. Lugtu instructed Madrideo to state, among others, in his “Salaysay” that Madrideo saw a simultaneous fire that occurred in two sides of the plant of Sanyoware.

14. In the “Karagdagang Salaysay” of Richard Madrideo, he repudiated his “Salaysay” by claiming that he was threatened and coerced by Respondents into executing said “Salaysay.” Said claim is a blatant lie. In essence, the story contained in the “Karagdagang Salaysay” regarding alleged threats and coercion is nothing but a fabricated lie for the truth of the matter being that his “Salaysay” was executed by him freely and voluntarily last July 30, 2001 at the conference room of Sanyoware. He was not threatened by anyone. He was neither paid nor promised any consideration for executing said “Salaysay.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

WHEREFORE, premises considered, it is respectfully recommended that an information for Destructive Arson be filed against Wilson Ting, Edward Yao, Willy So Tan and Carol Ortega. That the case against Samson Ting be dismissed for lack of sufficient evidence to indict him under the charge.

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

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

That on or about May 14, 2001, in the Municipality of Bocaue, Province of Bulacan, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating and mutually helping one another, acting in common accord, did then and there, willfully, unlawfully, and feloniously, destroy the warehouses known as Sanyoware Plastic Products Manufacturing Plant and New Unitedware Marketing Corporation, including the stocks of raw materials and finish products, machineries and various equipments by maliciously burning the same for the purpose of concealing or destroying evidence of another violation of law, and to conceal bankruptcy to defraud creditors and to collect from insurance.

CONTRARY TO LAW.[20]

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

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

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

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

SO ORDERED.[23]

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

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

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

WHEREFORE, premises considered, there being no grave abuse of discretion committed by the public respondent, the assailed Orders dated February 27, 2002 and March 25, 2002 are hereby AFFIRMED in toto and the present petition is hereby DENIED DUE COURSE and is, accordingly, DISMISSED for lack of merit.

SO ORDERED.[26]

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

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

THE COURT OF APPEALS PATENTLY AND GROSSLY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ADOPTING THE EQUIPOISE RULE IN THE CASE AT BAR.[28]

Before anything else, this Court shall address a procedural issue raised by respondents that certiorari does not lie considering that such special civil action is not and cannot be a substitute for an appeal, or more importantly, a lapsed appeal. [29]

Respondents’ position is well taken.

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

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

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

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

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

SEC 6. When warrant of arrest may issue. –

x x x x

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

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

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

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

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

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

Under the equipoise rule, where the evidence on an issue of fact is in equipoise, or there is doubt on which side the evidence preponderates, the party having the burden of proof loses. The equipoise rule finds application if the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, for then the evidence does not suffice to produce a conviction.[39]

To this Court’s mind, the reliance of the RTC in the equipoise rule is misplaced as a review of previous Court decisions would show that the position of petitioner is in fact correct. The equipoise rule has been generally applied when the parties have already concluded the presentation of their respective evidence as shown in a plethora of cases such as Abarquez v. People,[40] Tin v. People[41] and People v. Leano.[42]

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

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

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

The significance of the above reports and findings cannot be overlooked. Note that F/CINSP. Absalon Zipagan, F/Insp. Allan Barredo and SPO1 Valeriano Dizon, Jr. were included as accessories in the complaint by the DILG, Inter Agency Anti-Arson Task Force but the State Prosecutor did not rule on their liability, which thus enhances all the more the probative value of the said reports and findings.

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

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

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

Based on Section 6, Rule 112 of the Rules of Court, the RTC judge, upon the filing of an Information, has the following options: (1) dismiss the case if the evidence on record clearly failed to establish probable cause; (2) if he or she finds probable cause, issue a warrant of arrest; and (3) in case of doubt as to the existence of probable cause, order the prosecutor to present additional evidence within five days from notice, the issue to be resolved by the court within thirty days from the filing of the information.[45]

The judge is required to personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause.[46] To this Court’s mind, the RTC had complied with its duty of personally evaluating the supporting evidence of the prosecution before arriving at its decision of dismissing the case against respondents.

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

The sole office of writ of certiorari is the correction of errors of jurisdiction, including the commission of grave abuse of discretion amounting to lack of jurisdiction and does not include correction of public respondent’s evaluation of the evidence and factual findings based thereon.[48] An error of judgment that the court may commit in the exercise of its jurisdiction is not correctible through the original special civil action of certiorari.[49]

In any case, the dismissal of herein petition does not preclude petitioner from availing of any other action it deems appropriate under the premises. Double jeopardy cannot be invoked where the accused has not been arraigned and it was upon his express motion that the case was dismissed.[50] Moreover, while the absence of probable cause for the issuance of a warrant of arrest is a ground for the dismissal of the case, the same does not result in the acquittal of the said accused. [51]

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

SO ORDERED.

[G.R. No. L-19550. June 19, 1967.]

HARRY S. STONEHlLL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL BECK, Petitioners, v. HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE, JOSE LUKBAN, in his capacity as Acting Director of the National Bureau of Investigation; SPECIAL PROSECUTORS PEDRO D. CENZON, EFREN I. PLANA and MANUEL VILLAREAL, JR. and ASST. FISCAL MANASES G. REYES, JUDGE AMADO ROAN, Municipal Court of Manila, JUDGE ROMAN CANSINO, Municipal Court of Manila, JUDGE HERMOGENES CALUAG, Court of First Instance of Rizal-Quezon City Branch, and JUDGE DAMIAN JIMENEZ, Municipal Court of Quezon City,Respondents.

Paredes, Poblador, Cruz & Nazareno and Meer, Meer & Meer and Juan T . David, forPetitioners.

Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro, Assistant Solicitor General Frine C . Zaballero, Solicitor Camilo D. Quiason and Solicitor C . Padua forRespondents.

D E C I S I O N

CONCEPCION, C.J.:

Upon application of the officers of the government named on the margin 1 — hereinafter referred to as Respondent-Prosecutors — several judges 2 — hereinafter referred to as Respondent-Judges — issued, on different dates, 3 a total of 42 search warrants against petitioners herein 4 and/or the corporations of which they were officers, 5 directed to any peace officer, to search the persons above-named and/or the premises of their offices, warehouses and/or residences, and to seize and take possession of the following personal property to wit:jgc:chanrobles.com.ph "Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals, portfolios, credit journals, typewriters, and other documents and/or papers showing all business transactions including disbursements receipts, balance sheets and profit and loss statements and Bobbins (cigarette wrappers)."cralaw virtua1aw library as "the subject of the offense; stolen or embezzled and proceeds or fruits of the offense," or "used or intended to be used as the means of committing the offense," which is described in the applications adverted to above as "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and the Revised Penal Code."cralaw virtua1aw library

Alleging that the aforementioned search warrants are null and void, as contravening the Constitution and the Rules of Court — because, inter alia: (1) they do not describe with particularity the documents, books and things to be seized; (2) cash money, not mentioned in the warrants, were actually seized; (3) the warrants were issued to fish evidence against the aforementioned petitioners in deportation cases filed against them; (4) the searches and seizures were made in an illegal manner; and (5) the documents, papers and cash money seized were not delivered to the courts that issued the warrants, to be disposed of in accordance with law — on March 20, 1962, said petitioners filed with the Supreme Court this original action for certiorari, prohibition, mandamus and injunction, and prayed that, pending final disposition of the present case, a writ of preliminary injunction be issued restraining Respondent-Prosecutors, their agents and or representatives from using the effects seized as aforementioned, or any copies thereof, in the deportation cases already adverted to, and that, in due course, thereafter, decision be rendered quashing the contested search warrants and declaring the same null and void, and commanding the respondents, their agents or representatives to return to petitioners herein, in accordance with Section 3, Rule 67, of the Rules of Court, the documents, papers, things and cash moneys seized or confiscated under the search warrants in question.

In their answer, respondents-prosecutors alleged 6 (1) that the contested search warrants are valid and have been issued in accordance with law; (2) that the defects of said warrants, if any, were cured by petitioners’ consent; and (3) that, in any event, the effects seized are admissible in evidence against herein petitioners, regardless of the alleged illegality of the aforementioned searches and seizures.

On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in the petition. However, by resolution dated June 29, 1962, the writ was partially lifted or dissolved, insofar as the papers, documents and things seized from the offices of the corporations above mentioned are concerned; but, the injunction was maintained as regards the papers, documents and things found and seized in the residences of petitioners herein. 7

Thus, the documents, papers, and things seized under the alleged authority of the warrants in question may be split into (2) major groups, namely: (a) those found and seized in the offices of the aforementioned corporations and (b) those found seized in the residences of petitioners herein.

As regards the first group, we hold that petitioners herein have no cause of action to assail the legality of the contested warrants and of the seizures made in pursuance thereof, for the simple reason that said corporations have their respective personalities, separate and distinct from the personality of herein petitioners, regardless of the amount of shares of stock or of the interest of each of them in said corporations, and whatever the offices they hold therein may be. 8 Indeed, it is well settled that the legality of a seizure can be contested only by the party whose rights have been impaired thereby, 9 and that the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties. 10 Consequently, petitioners herein may not validly object to the use in evidence against them of the documents, papers and things seized from the offices and premises of the corporations adverted to above, since the right to object to the admission of said papers in evidence belongs exclusively to the corporations, to whom the seized effects belong, and may not be invoked by the corporate officers in proceedings against them in their individual capacity. 11 Indeed, it has been held:jgc:chanrobles.com.ph

". . . that the Government’s action in gaining possession of papers belonging to the corporation did not relate to nor did it affect the personal defendants. If these papers were unlawfully seized and thereby the constitutional rights of or any one were invaded, they were the rights of the corporation and not the rights of the other defendants. Next, it is clear that a question of the lawfulness of a seizure can be raised only by one whose rights have been invaded. Certainly, such a seizure, if unlawful, could not affect the constitutional rights of defendants whose property had not been seized or the privacy of whose homes had not been disturbed; nor could they claim for themselves the benefits of the Fourth Amendment, when its violation, if any, was with reference to the rights of another. Remus v. United States (C.C.A.) 291 F. 501, 511. It follows, therefore, that the question of the admissibility of the evidence based on an alleged unlawful search and seizure does not extend to the personal defendants but embraces only the corporation whose property was taken . . ." (A. Guckenheimer & Bros. Co. v. United States, [1925] 3 F. 2d, 786, 789, Emphasis supplied.)

With respect to the documents, papers and things seized in the residences of petitioners herein, the aforementioned resolution of June 29, 1962, denied the lifting of the writ of preliminary injunction previously issued by this Court, 12 thereby, in effect, restraining herein Respondent-Prosecutors from using them in evidence against petitioners herein.

In connection with said documents, papers and things, two (2) important questions need be settled, namely: (1) whether the search warrants in question, and the searches and seizures made under the authority thereof, are valid or not; and (2) if the answer to the preceding question is in the negative, whether said documents, papers and things may be used in evidence against petitioners herein.

Petitioners maintain that the aforementioned search warrants are in the nature of general warrants and that, accordingly, the seizures effected upon the authority thereof are null and void. In this connection, the Constitution 13 provides:jgc:chanrobles.com.ph

"The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined 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."cralaw virtua1aw library

Two points must be stressed in connection with this constitutional mandate, namely: (1) that no warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth in said provision; and (2) that the warrant shall particularly describe the things to be seized.

None of these requirements has been complied with in the contested warrants. Indeed, the same were issued upon applications stating that the natural and juridical persons therein named had committed a "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code." In other words, no specific offense had been alleged in said applications. The averments thereof with respect to the offense committed were abstract. As a consequence, it was impossible for the judges who issued the warrants to have found the existence of probable cause, for the same presupposes the introduction of competent proof that the party against whom it is sought has performed particular acts, or committed specific omissions, violating a given provision of our criminal laws. As a matter of fact, the applications involved in this case do not allege any specific acts performed by herein petitioners. It would be a legal heresy, of the highest order, to convict anybody of a "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code," — as alleged in the aforementioned applications — without reference to any determinate provision of said laws or codes.

To uphold the validity of the warrants in question would be to wipe out completely one of the most fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile and the privacy of communication and correspondence at the mercy of the whims, caprice or passion of peace officers. This is precisely the evil sought to be remedied by the constitutional provision above quoted — to outlaw the so-called general warrants. It is not difficult to imagine what would happen, in times of keen political strife, when the party in power feels that the minority is likely to wrest it, even though by legal means.

Such is the seriousness of the irregularities committed in connection with the disputed search warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of Court 14 by providing in its counterpart, under the Revised Rules of Court 15 that "a search warrant shall not issue upon probable cause in connection with one specific offense." Not satisfied with this qualification, the Court added thereto a paragraph, directing that "no search warrant shall issue for more than one specific offense."cralaw virtua1aw library

The grave violation of the Constitution made in the application for the contested search warrants was compounded by the description therein made of the effects to be searched for and seized, to wit:jgc:chanrobles.com.ph

"Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers, portfolios, credit journals, typewriters, and other documents and/or papers showing all business transactions including disbursement receipts, balance sheets and related profit and loss statements."cralaw virtua1aw library

Thus, the warrants authorized the search for and seizure of records pertaining to all business transactions of petitioners herein, regardless of whether the transactions were legal or illegal. The warrants sanctioned the seizure of all records of the petitioners and the aforementioned corporations, whatever their nature, thus openly contravening the explicit command of our Bill of Rights — that the things to be seized be particularly described — as well as tending to defeat its major objective: the elimination of general warrants.

Relying upon Moncado v. People’s Court (80 Phil. 1), Respondent- Prosecutors maintain that, even if the searches and seizures under consideration were unconstitutional, the documents, papers and things thus seized are admissible in evidence against petitioners herein. Upon mature deliberation, however, we are unanimously of the opinion that the position taken in the Moncado case must be abandoned. Said position was in line with the American common law rule, that the criminal should not be allowed to go free merely "because the constable has blundered," 16 upon the theory that the constitutional prohibition against unreasonable searches and seizures is protected by means other than the exclusion of evidence unlawfully obtained, 17 such as the common-law action for damages against the searching officer, against the party who procured the issuance of the search warrant and against those assisting in the execution of an illegal search, their criminal punishment, resistance, without liability to an unlawful seizure, and such other legal remedies as may be provided by other laws.

However, most common law jurisdictions have already given up this approach and eventually adopted the exclusionary rule, realizing that this is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures. In the language of Judge Learned Hand:jgc:chanrobles.com.ph

"As we understand it, the reason for the exclusion of evidence competent as such, which has been unlawfully acquired, is that exclusion is the only practical way of enforcing the constitutional privilege. In earlier times the action of trespass against the offending official may have been protection enough; but that is true no longer. Only in case the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong, will that wrong be repressed." 18

In fact, over thirty (30) years before, the Federal Supreme Court had already declared:jgc:chanrobles.com.ph

"If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the 4th Amendment, declaring his rights to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land." 19

This view was, not only reiterated, but, also, broadened in subsequent decisions of the same Federal Court. 20 After reviewing previous decisions thereon, said Court held, in Mapp v. Ohio (supra.):jgc:chanrobles.com.ph

". . . Today we once again examine the Wolf’s constitutional documentation of the right of privacy free from unreasonable state intrusion, and, after its dozen years on our books, are led by it to close the only courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific guarantee against that very same unlawful conduct. We held that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a State court.

"Since the Fourth Amendment’s right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as it used against the Federal Government. Were it otherwise, then just as without the Weeks rule the assurance against unreasonable federal searches and seizures would be ‘a form of words’, valueless and undeserving of mention in a perpetual charter of inestimable human liberties, so too, ‘without that 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 permit this Court’s high regard as a freedom implicit in the concept of ordered liberty.’ At the time that the Court held in Wolf that the Amendment was applicable to the States through the Due Process Clause, the cases of this Court as we have seen, had steadfastly held that as to federal officers the Fourth Amendment included the exclusion of the evidence seized in violation of its provisions. Even Wolf ‘stoutly adhered’ to that proposition. The right to privacy, when conceded operatively enforceable against the States, was not susceptible of destruction by avulsion of the sanction upon which its protection and enjoyment had always been deemed dependent under the Boyd, Weeks and Silverthorne Cases. Therefore, in extending the substantive protections of due process to all constitutionally unreasonable searches — state or federal — it was logically and constitutionally necessary that the exclusion doctrine — an essential part of the right to privacy — be also insisted upon as an essential ingredient of the right newly recognized by the Wolf Case. In short, the admission of the new constitutional right by Wolf could not consistently tolerate denial of its most important constitutional privilege, namely, the exclusion of the evidence which an accused had been forced to give by reason of the unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its privilege and enjoinment. Only last year the Court itself recognized that the purpose of the exclusionary rule ‘is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.’ . . .

"The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints on which the liberties of the people rest. Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the States, and that the right to be secure against rude invasions of privacy by state officers is, therefore constitutional in origin, we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by the Due Process Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforceable itself, chooses to suspend its enjoinment. Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice." (Emphasis ours.)

Indeed, the non-exclusionary rule is contrary, not only to the letter, but, also, to spirit of the constitutional injunction against unreasonable searches and seizures. To be sure, if the applicant for a search warrant has competent evidence to establish probable cause of the commission of a given crime by the party against whom the warrant is intended, then there is no reason why the applicant should not comply with the requirements of the fundamental law. Upon the other hand, if he has no such competent evidence, then it is not possible for the judge to find that there is probable cause, and, hence, no justification for the issuance of the warrant. The only possible explanation (not justification) for its issuance is the necessity of fishing evidence of the commission of a crime. But, then, this fishing expedition is indicative of the absence of evidence to establish a probable cause.

Moreover, the theory that the criminal prosecution of those who secure an illegal search warrant and/or make unreasonable searches or seizures would suffice to protect the constitutional guarantee under consideration, overlooks the fact that violations thereof are, in general, committed by agents of the party in power, for, certainly, those belonging to the minority could not possibly abuse a power they do not have. Regardless of the handicap under which the minority usually — but, understandably — finds itself in prosecuting agents of the majority, one must not lose sight of the fact that the psychological and moral effect of the possibility 21 of securing their conviction, is watered down by the pardoning, power of the party for whose benefit the illegality had been committed.

In their Motion for Reconsideration and Amendment of the Resolution of this Court dated June 29, 1962, petitioners allege that Room Nos. 81 and 91 of Carmen Apartments, House No. 2008, Dewey Boulevard, House No. 1436, Colorado Street, and Room No. 304 of the Army-Navy Club, should be included among the premises considered in said Resolution as residences of herein petitioners, Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl Beck, respectively, and that, furthermore, the records, papers and other effects seized in the offices of the corporations above referred to include personal belongings of said petitioners and other effects under their exclusive possession and control, for the exclusion of which they have a standing under the latest rulings of the federal courts of the United States. 22

We note, however, that petitioners’ theory, regarding their alleged possession of and control over the aforementioned records, papers and effects, and the alleged "personal" nature thereof, has been advanced, not in their petition or amended petition herein, but in the Motion for Reconsideration and Amendment of the Resolution of June 29, 1962. In other words, said theory would appear to be a readjustment of that followed in said petitions, to suit the approach intimated in the Resolution sought to be reconsidered and amended. Then, too, some of the affidavits or copies of alleged affidavits attached to said motion for reconsideration, or submitted in support thereof, contain either inconsistent allegations, or allegations inconsistent with the theory now advanced by petitioners herein.

Upon the other hand, we are not satisfied that the allegations of said petitions and motion for reconsideration, and the contents of the aforementioned affidavits and other papers submitted in support of said motion, have sufficiently established the facts or conditions contemplated in the cases relied upon by the petitioners, to warrant application of the views therein expressed, should we agree thereto. At any rate, we do not deem it necessary to express our opinion thereon, it being best to leave the matter open for determination in appropriate cases in the future.

We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby, abandoned; that the warrants for the search of three (3) residences of herein petitioners, as specified in the Resolution of June 29, 1962 are null and void; that the searches and seizures therein made are illegal; that the writ of preliminary injunction heretofore issued, in connection with the documents, papers and other effects thus seized in said residences of herein petitioners is hereby made permanent, that the writs prayed for are granted, insofar as the documents, papers and other effects so seized in the aforementioned residences are concerned; that the aforementioned motion for Reconsideration and Amendment should be, as it is hereby, denied; and that the petition herein is dismissed and the writs prayed for denied, as regards the documents, papers and other effects seized in the twenty- nine (29) places, offices and other premises enumerated in the same Resolution, without special pronouncement as to costs.

It is so ordered.

Reyes, J .B.L., Dizon, Makalintal, Bengzon, J .P., Zaldivar and Sanchez, JJ., concur.

Separate Opinions

CASTRO, J., concurring and dissenting:chanrob1es virtual 1aw library

From my analysis of the opinion written by Chief Justice Roberto Concepcion and from the import of the deliberations of the Court on this case, I gather the following distinct conclusions:chanrob1es virtual 1aw library

1. All the search warrants served by the National Bureau of Investigation in this case are general warrants and are therefore prescribed by, and in violation of, Paragraph 3 of Section 1 of Article III (Bill of Rights) of the Constitution;

2. All the searches and seizures conducted under the authority of the said search warrants were consequently illegal;

3. The non-exclusionary rule enunciated in Moncado v. People, 80 Phil. 1, should be, and is declared, abandoned;

4. The search warrants served at the three residences of the petitioners are expressly declared null and void; the searches and seizures therein made are expressly declared illegal; and the writ of preliminary injunction heretofore issued against the use of the documents, papers and effects seized in the residences is made permanent; and

5. Reasoning that the petitioners have not in their pleadings satisfactorily demonstrated that they have legal standing to move for the suppression of the documents, papers and effects seized in the places other than the three residences adverted to above, the opinion written by the Chief Justice refrains from expressly declaring as null and void the search warrants served at such other places and as illegal the searches and seizures made therein, and leaves "the matter open for determination in appropriate cases in the future."cralaw virtua1aw library

It is precisely the position taken by the Chief Justice summarized in the immediately preceding paragraph (numbered 5) with which I am not in accord.

I do not share his reluctance or unwillingness to expressly declare, at this time, the nullity of the search warrants served at places other than the three residences, and the illegality of the searches and seizures conducted under the authority thereof. In my view even the exacerbating passions and prejudices inordinately generated by the environmental political and moral developments of this case should not deter this Court from forthrightly laying down the law - not only for this case but as well for future cases and future generations. All the search warrants, without exception, in this case are admittedly general, blanket and roving warrants and are therefore admittedly and indisputably outlawed by the Constitution; and the searches and seizures made were therefore unlawful. That the petitioners, let us assume in gratia argumenti, have no legal standing to ask for the suppression of the papers, things and effects seized from places other than their residences, to my mind, cannot in any manner affect, alter or otherwise modify the intrinsic illegality of the search warrants and the intrinsic illegality of the searches and seizures made thereunder. Whether or not the petitioners possess legal standing, the said warrants are void and remain void, and the searches and seizures were illegal and remain illegal. No inference can be drawn from the words of the Constitution that "legal standing" or the lack of it is a determinant of the nullity or validity of a search warrant or of the lawfulness or illegality of a search or seizure.

On the question of legal standing, I am of the conviction that, upon the pleadings submitted to this Court, the petitioners have the requisite legal standing to move for the suppression and return of the documents, papers and effects that were seized from places other than their family residences.

Our constitutional provision on searches and seizures was derived almost verbatim from the Fourth Amendment to the United States Constitution. In the many years of judicial construction and interpretation of the said constitutional provision, our courts have invariably regarded as doctrinal the pronouncements made on the Fourth Amendment by federal courts, especially the Federal Supreme Court and the Federal Circuit Courts of Appeals.

The U.S. doctrines and pertinent cases on standing to move for the suppression or return of documents, papers and effects which are the fruits of an unlawful search and seizure, may be summarized as follows: (a) ownership of documents, papers and effects gives "standing" ; (b) ownership and/or control or possession — actual or constructive — of premises searched gives "standing" ; and (c) the "aggrieved person" doctrine where the search warrant and the sworn application for search warrant are "primarily" directed solely and exclusively against the "aggrieved person", gives "standing."cralaw virtua1aw library

An examination of the search warrants in this case will readily show that, excepting three, all were directed against the petitioners personally. In some of them, the petitioners were named personally, followed by the designation, "the President and/or General Manager" of the particular corporation. The three warrants excepted named three corporate defendants. But the "office/house/warehouse/premises" mentioned in the said three warrants were also the same "office/house/warehouse/premises" declared to be owned by or under the control of the petitioners in all the other search warrants directed against the petitioners and/or "the President and/or General Manager" of the particular corporation. (see pages 5-24 of Petitioners’ Reply of April 2, 1962). The searches and seizures were to be made, and were actually made, in the "office/house warehouse/premises" owned by or under the control of the petitioners.

Ownership of matters seized gives "standing."cralaw virtua1aw library

Ownership of the properties seized alone entitles the petitioners to bring a motion to return and suppress, and gives them standing as persons aggrieved by an unlawful search and seizure regardless of their location at the time of seizure. Jones v. United States, 362 U.S. 257, 261 (1960) (narcotics stored in the apartment of a friend of the defendant); Henzel v. United States, 296 F 2d. 650, 652-53 (5th Cir. 1961) (personal and corporate papers of corporation of which the defendant was president); United States v. Jeffers, 342 U.S. 48 (1951) (narcotics seized in an apartment not belonging to the defendant); Pielow v. United States, 8F. 2d 492, 493 (9th Cir. 1925) (books seized from the defendant’s sister but belonging to the defendant); Cf. Villano v. United States, 310 F. 2d 680, 683 (10th Cir. 1962) (papers seized in desk neither owned by nor in exclusive possession of the defendant).

In a very recent case (decided by the U.S. Supreme Court on December 12, 1966), it was held that under the constitutional provision against unlawful searches and seizures, a person places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile:jgc:chanrobles.com.ph "Where the argument falls is in its misapprehension of the fundamental nature and scope of Fourth Amendment protection. What the Fourth Amendment protects is the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his homes, or his office, his hotel room or his automobile. There he is protected from unwarranted governmental intrusion. And when he puts something in his filing cabinet, in his desk drawer, or in his pocket, he has the right to know it will be secure from an unreasonable search or an unreasonable seizure. So it was that the Fourth Amendment could not tolerate the warrantless search of the hotel room in Jeffers, the purloining of the petitioner’s private papers in Gouled, or the surreptitious electronic surveillance in Silverman. Countless other cases which have come to this Court over the years have involved a myriad of differing factual contexts in which the protections of the Fourth Amendment have been appropriately invoked. No doubt the future will bring countless others. By nothing we say here or do we either foresee or foreclose factual situations to which the Fourth Amendment may be applicable." Hoffa v. U.S. 87 S. Ct. 408 (December 12, 1966) See also U.S. v. Jeffers, 342 U.S. 48, 72 S. Ct. 93 (November 13, 1951). (Emphasis supplied).

Control of premises searches gives "standing."cralaw virtua1aw library

Independent of ownership or other personal interest in the records and documents seized, the petitioners have standing to move for return and suppression by virtue of their proprietary or leasehold interest in many of the premises searched. These proprietary and leasehold interests have been sufficiently set forth in their motion for reconsideration and need not be recounted here, except to emphasize that the petitioners paid rent, directly or indirectly, for practically all the premises searched (Room 91, 84 Carmen Apts.; Room 304, Army & Navy Club; Premises 2008, Dewey Boulevard; 1436 Colorado Street); maintained personal offices within the corporate offices (IBMS, USTC); had made improvements or furnished such offices; or had paid for the filing cabinets in which the papers were stored (Room 204, Army & Navy Club); and individually, or through their respective spouses, owned the controlling stock of the corporations involved. The petitioners’ proprietary interest in most, if not all, of the premises searched therefore independently gives them standing to move for the return and suppression of the books, papers and effects seized therefrom.

In Jones v. United States, supra, the U.S. Supreme Court delineated the nature and extent of the interest in the searched premises necessary to maintain a motion to suppress. After reviewing what it considered to be the unduly technical standards of the then prevailing circuit court decisions, the Supreme Court said (362 U.S. 266):jgc:chanrobles.com.ph

"We do not lightly depart from this course of decisions by the lower courts. We are persuaded, however, that it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law, which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. Even in the area from which they derive, due consideration has led to the discarding of those distinctions in the homeland of the common law. See Occupiers’ Liability Act, 1957, 5 and 6 Eliz. 2, c. 31, carrying out Law Reform Committee, Third Report, Cmd. 9305. Distinctions such as those between ‘lessee,’ ‘licensee,’ ‘invitee,’ and ‘guest,’ often only of gossamer strength, ought not be determinative in fashioning procedures ultimately referable to constitutional safeguards." See also Chapman v. United States,354 U.S. 610, 616-17 (1961).

It has never been held that a person with requisite interest in the premises searched must own the property seized in order to have standing in a motion to return and suppress. In Alioto v. United States, 216 F. Supp. 48 (1963), a bookkeeper for several corporations from whose apartment the corporate records were seized successfully moved for their return. In United States v. Antonelli Fireworks Co., 53 F. Supp. 870, 873 (W. D. N. Y. 1943), the corporation’s president successfully moved for the return and suppression as to him of both personal and corporate documents seized from his home during the course of an illegal search:jgc:chanrobles.com.ph

"The lawful possession by Antonelli of documents and property, either his own or the corporation’s, was entitled to protection against unreasonable search and seizure. Under the circumstances in the case at bar, the search and seizure were unreasonable and unlawful. The motion for the return of seized articles and the suppression of the evidence so obtained should be granted." (Emphasis supplied)

Time was when only a person who had property interest in either the place searched or the articles seized had the necessary standing to invoke the protection of the exclusionary rule. But in MacDonald v. United States, 336 U.S. 461 (1948), Justice Robert Jackson, joined by Justice Felix Frankfurter, advanced the view that "even a guest may expect the shelter of the rooftree he is under against criminal intrusion." This view finally became the official view of the U.S. Supreme Court and was articulated in United States v. Jeffers, 342 U.S. 48 (1951). Nine years later, in 1960, in Jones v. United States, 362 U.S. 257, 267, the U.S. Supreme Court went a step further. Jones was a mere guest in the apartment unlawfully searched, but the Court nonetheless declared that the exclusionary rule protected him as well. The concept of "person aggrieved by an unlawful search and seizure" was enlarged to include "anyone legitimately on premises where the search occurs."cralaw virtua1aw library

Shortly after the U.S. Supreme Court’s Jones decision, the U.S. Court of Appeals for the Fifth Circuit held that the defendant organizer, sole stockholder and president of a corporation had standing in a mail fraud prosecution against him to demand the return and suppression of corporate property. Henzel v. United States, 296 F. 2d. 650, 652 (5th Cir. 1961), supra. The court concluded that the defendant had standing on two independent grounds: First — he had a sufficient interest in the property seized, and second — he had an adequate interest in the premises searched (just in the case at bar). A postal inspector had unlawfully searched the corporation’s premises and had seized most of the corporation’s books and records. Looking to Jones, the court observed:jgc:chanrobles.com.ph

"Jones clearly tells us, therefore, what is not required to qualify one as a ‘person aggrieved by an unlawful search and seizure.’ It tells us that appellant should not have been precluded from objecting to the Postal Inspector’s search and seizure of the corporation’s books and records, merely because the appellant did not show ownership or possession of the books and records or a substantial possessory interest in the invaded premises . . ." Henzel v. United States, 296 F. 2d at 651.

Henzel was soon followed by Villano v. United States, 310 F. 2d 680, 683, (10th Cir. 1962). In Villano, police officers seized two notebooks from a desk in the defendant’s place of employment; the defendant did not claim ownership of either; he asserted that several employees (including himself) used the notebooks. The Court held that the employee had a protected interest and that there also was an invasion of privacy. Both Henzel and Villano considered also the fact that the search and seizure were "directed at" the moving defendant. Henzel v. United States, 296 F. 2d at 682; Villano v. United States, 310 F. 2d at 683.

In a case in which an attorney closed his law office, placed his files in storage and went to Puerto Rico, the Court of Appeals for the Eighth Circuit recognized his standing to move to quash as unreasonable search and seizure under the Fourth Amendment of the U.S. Constitution a grand jury subpoena duces tecum directed to the custodian of his files. The Government contended that the petitioner had no standing because the books and papers were physically in the possession of the custodian, and because the subpoena was directed against the custodian. The court rejected the contention, holding that.

"Schwimmer legally had such possession, control and unrelinquished personal rights in the books and papers as not to enable the question of unreasonable search and seizure to be escaped through the mere procedural device of compelling a third- party naked possessor to produce and deliver them." Schwimmer v. United. States, 232 F. 2d 855, 861 (8th Cir. 1956).

Aggrieved person doctrine where the search warrant is primarily directed against said person gives "standing."cralaw virtua1aw library

The latest United States decision squarely in point is United States v. Birrell, 242 F. Supp. 191 (1965, U.S.D.C., S.D.N.Y.). The defendant had stored with an attorney certain files and papers, which attorney, by the name of Dunn, was not, at the time of the seizing of the records, Birrell’s attorney. * Dunn, in turn, had stored most of the records at his home in the country and on a farm which, according to Dunn’s affidavit, was under his (Dunn’s) "control and management." The papers turned out to be private, personal and business papers together with corporate books and records of certain unnamed corporations in which Birrell did not even claim ownership. (All of these type records were seized in the case at bar). Nevertheless, the search in Birrell was held invalid by the court which held that even though Birrell did not own the premises where the records were stored, he had "standing" to move for the return of all the papers and properties seized. The court, relying on Jones v. U.S., supra; U.S. v. Antonelli Fireworks Co., 53 F. Supp. 870, Aff’d 155 F. 2d 631; Henzel v. U.S., supra; and Schwimmer v. U.S., supra, pointed out that.

"It is overwhelmingly established that the searches here in question were directed solely and exclusively against Birrell. The only person suggested in the papers as having violated the law was Birrell. The first "search warrant described the records as having been used in committing a violation of Title 18, United States Code, Section 1341, by the use of the mails by one Lowell M. Birrell, . . .’ The second search warrant was captioned: ‘United States of America v. Lowell M. Birrell. (p. 198)

"Possession (actual or constructive), no less than ownership, gives standing to move to suppress. Such was the rule even before Jones." (p. 199)

"If, as thus indicated, Birrell had at least constructive possession of the records stored with Dunn, it matters not whether he had any interest in the premises searched." See also Jeffers v. United States. 88 U.S. Appl. D.C. 58, 187 F. 2d 498 (1950), affirmed 342 U.S. 48, 72 S. Ct. 93, 96 L. Ed. 459 (1951).

The ruling in the Birrell case was reaffirmed on motion for reargument; the United States did not appeal from this decision. The factual situation in Birrell is strikingly similar to the case of the present petitioners; as in Birrell, many personal and corporate papers were seized from premises not petitioners’ family residences; as in Birrell, the searches were "PRIMARILY DIRECTED SOLELY AND EXCLUSIVELY" against the petitioners. Still both types of documents were suppressed in Birrell because of the illegal search. In the case at bar, the petitioners’ connection with the premises raided is much closer than in Birrell.

Thus, the petitioners have full standing to move for the quashing of all the warrants regardless of whether these were directed against residences in the narrow sense of the word, as long as the documents were personal papers of the petitioners or (to the extent that they were corporate papers) were held by them in a personal capacity or under their personal control.

Prescinding from the foregoing, this Court, at all events, should order the return to the petitioners all personal and private papers and effects seized, no matter where these were seized, whether from their residences or corporate offices or any other place or places. The uncontradicted sworn statements of the petitioners in their various pleadings submitted to this Court indisputably show that amongst the things seized from the corporate offices and other places were personal and private papers and effects belonging to the petitioners.

If there should be any categorization of the documents, papers and things which were the objects of the unlawful searches and seizures, I submit that the grouping should be: (a) personal or private papers of the petitioners wherever they were unlawfully seized, be it their family residences, offices, warehouses and/or premises owned and/or controlled and/or possessed (actually or constructively) by them as shown in all the search warrants and in the sworn applications filed in securing the void search warrants, and (b) purely corporate papers belonging to corporations. Under such categorization or grouping, the determination of which unlawfully seized papers, documents and things are personal/private of the petitioners or purely corporate papers will have to be left to the lower courts which issued the void search warrants in ultimately effecting the suppression and/or return of the said documents.

And as unequivocally indicated by the authorities above cited, the petitioners likewise have clear legal standing to move for the suppression of purely corporate papers as "President and/or General Manager" of the corporations involved as specifically mentioned in the void search warrants.

Finally, I must articulate my persuasion that although the cases cited in my disquisition were criminal prosecutions, the great clauses of the constitutional proscription on illegal searches and seizures do not withhold the mantle of their protection from cases not criminal in origin or nature.

G.R. No. 94396 November 27, 1992

PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. COURT OF APPEALS, HON. ABELARDO DAYRIT, presiding Judge of Manila, Regional Trial Court, Br. 39 and RUBEN SIAO, respondents.

CRUZ, J.:

The Court of Appeals is faulted for its refusal to reinstate a search warrant, quashed by the same trial court that had earlier issued it. The principal reason for the challenged decision is that the issue had become moot and academic with the dismantling of the properties subject of the said warrant. The properties consisted of 27 units of distribution transformers of various sizes sold to the University of the Philippines-Iloilo (UP, for short) and delivered on June 15, 1987. The agreed price, including installation cost, was $39,516.00 and was fully paid by UP to the seller, Varona Trading, through its general manager, Danilo Varona. On June 27, 1987, these same properties were pulled out by Varona on the excuse that they had certain factory defects that had to be repaired. When Varona failed to comply with UP's demand for their return pending their replacement, UP referred the matter to the National Bureau of Investigation, which found that the properties were in the warehouse of Ruben Siao, herein private respondent. NBI applied for and secured the questioned search warrant, 1 which was issued by Judge Abelardo M. Dayrit of the Regional Trial Court of Manila on September 25, 1987. On the strength of this warrant, NBI seized the said transformers, which were later ascertained to be the same transformers sold to UP, not only by their serial numbers but also because the crates where they were contained were marked "UP- Iloilo."

On September 28, Siao filed an urgent motion to quash the search warrant on the ground that Nissen-Denki Philippine Corporation, of which he was the manager, had bought the said transformers from Varona for the sum of P702,483.00. The motion was denied on December 10, 1987, after a lengthy exchange of pleadings between the parties. However, on July 7, 1988, again after a spirited debate between the petitioner and the private respondent, Judge Dayrit granted Siao's motion for reconsideration and dissolved the search warrant. He also ordered the NBI to return the seized transformers to Siao.

Meanwhile, UP had filed a complaint for estafa against Varona and Siao and the City Prosecutor of Iloilo City had lodged the corresponding information before the Regional Trial Court of Iloilo. Upon re-investigation of the complaint, however, it was found that there was no cause to hold Siao for trial and accordingly, on motion of the prosecution, the case against him was dismissed by the trial court on October 13, 1989.

Disagreeing with the quashal of the search warrant, the petitioner went to the respondent court, which as earlier noted, sustained the action of the trial court.

The present petition is based principally on the argument that the search warrant issued by Judge Dayrit complied with all the requirements set out in Article III, Section 2, of the Bill of Rights. There was probable cause to justify its issuance because the properties were fraudulently taken by Varona from UP, the purchaser- owner. Siao, who claimed to have bought it also, was not a purchaser in good faith because he knew or should have known that the transformers belonged to UP as the markings in the crates clearly indicated. The Solicitor General also argues that the question of ownership cannot be litigated in search warrant proceedings and that any property is subject to seizure, regardless of its ownership, as long as it is illegally possessed. He adds that, as required by the Constitution, the probable cause was determined personally by Judge Dayrit and the warrant specifically described the properties to be seized.

In his Comment, the private respondent supports the finding of the Court of Appeals that the issue and become moot and academic. He points out that his company had bought the transformers from Varona not for use in their original condition but precisely for dismantling and conversion to other transformers according to specifications set by the end-users. The transformers had been so dismantled and converted and, at that, not immediately but only after two months following their recovery, when it appeared that the petitioner was no longer interested in pursuing the matter. Even assuming that the properties were the subject of an offense, the search warrant could not be directed of an offense, the search warrant could not be directed against him because the estafa case against him had been dismissed and remained pending only against Varona. And while it was true that stolen property could be recovered even from an innocent purchaser, this rule would not apply in the instant case because UP allowed the withdrawal of the transformers by Danilo, who was consequently able to sell them to Nissen-Denki. Finally, he agrees with the petitioner that the issue of ownership could not be resolved in the search warrant proceeding but in a separate civil action.

In justifying his dissolution of the search warrant, Judge Dayrit said in his order dated July 7, 1988:

(a) The warrant earlier issued omitted (perhaps by inadvertence) to indicate clearly what specific offense had been violated;

(b) While it did mentioned that the subjects of the offense are "stolen or embezzled" goods or proceeds thereof, this Court recognizes that the offense possibly committed from that description may either be robbery, theft, qualified theft, or estafa;

(c) Furthermore, Danilo Varona's deposition, on which this Court relied heavily when it first issued the warrant, stated that the transformers in question were brought to defendant Ruben Siao for repair; but during the hearing on the motion to quash and after the evidences adduced therein, this Court discovered that defendant Siao had strong evidence tending to establish his claim that he bought the transformers in good faith and in the ordinary course of business from Varona Trading which was a merchant of such products;

(d) There was, therefore, no probable cause for the issuance of the search warrant in the first place; and

(e) The Court would not have issued the warrant if it had been confronted with that fact.

As correctly observed by the private respondent: The search warrant issued by the trial court left the space in the caption intended for the nature of the offense in blank, indicating the uncertainty of petitioner and the court as to the crime committed and for which the search warrant was issued. On the other hand, all that the body of the search warrant stated was that the transformers were "Stolen or Embezzled and proceeds or fruits of the offense, used or intended to be used as the means of committing the offense." But, since the particular offense was not mentioned, the reason for the issuance of the search warrant could be anything under the sun.

There is no question that the search warrant did not relate to a specific offense, in violation of the doctrine announced in Stonehill v. Diokno 2 and of Section 3 of Rule 126 providing as follows:

Sec. 3. Requisites for issuing search warrant. — A search warrant shall not issue but upon probable cause in connection with one specific offense 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 searched and the things to be seized. (Emphasis supplied.)

Significantly, the petitioner has not denied this defect in the search warrant and has merely said that there was probable cause, omitting to continue that it was in connection with one specific offense. He could not, of course, for the warrant was a scatter-shot warrant that could refer, in Judge Dayrit's own words "to robbery, theft, qualified theft or estafa." On this score alone, the search warrant was totally null and void and was correctly declared to be so by the very judge who had issued it.

Probable cause is defined as referring to "such facts and circumstances antecedent to the issuance of the warrant that in themselves are sufficient to induce a cautious person to rely on them, and to act in pursuance thereof." 3 At the time he issued the search warrant, there was in Judge Dayrit's view probable cause that a crime had been committed by Siao, who had possession of the subject properties. However, such probable cause no longer exists now because the information for estafa against Siao has already been dismissed by the Regional Trial Court of Manila on motion of the prosecution itself. Siao's guilt is no longer open for conjecture.

What is whether the search warrant could be issued against Siao, assuming he was an innocent purchaser for value, in connection with the prosecution of Varona for estafa. But this is a question we need not decide here. It is clear that, even if it were resolved affirmatively, the search warrant in question would still have to be annulled for its failure to state therein the specific offense for which it was being issued.

The Solicitor General complains that unless the search warrant is reinstated, the properties subject thereof cannot be used in the criminal action for estafa against Varona. The trouble is that the search warrant is in valid as already demonstrated, and the Constitution clearly says that any evidence taken in violation of its Article III, Section 2, cannot be used for any purpose in any proceeding. Moreover, as correctly ruled by the Court of Appeals, the subject of the warrant no longer exists, having been converted to other articles not answering to the specific description of the properties ordered to be seized under the search warrant.

Both the petitioner and the respondents agree that ownership of the transformers is a question that cannot be determined in search civil action. They are correct. Of course, UP is not left without recourse, for it may still claim restitution of the transformers or their value in the civil action impliedly instituted with the criminal action for estafa against Varona or in a separate civil action if it has been reserved. Any statement made by the trial court resolving that question shall be considered mere obiter dictum and not conclusive in any such recovery case.

We find that the search warrant issued by Judge Dayrit on September 25, 1987, was null and void for the reasons above discussed and so was correctly dissolved in the resolution dated July 7, 1988. The Court of Appeals committed no reversible error in refusing to reinstate it.

WHEREFORE, the petition is DENIED for lack of merit. No costs.

SO ORDERED.

G.R. Nos. 95122-23 May 31, 1991

BOARD OF COMMISSIONERS (COMMISSION ON IMMIGRATION AND DEPORTATION), BOARD OF SPECIAL INQUIRY, COMMISSIONER ANDREA D. DOMINGO, ASSOCIATE COMMISSIONER JORGE V. SARMIENTO, ACTING ASSOCIATE COMMISSIONER REGINO R. SANTIAGO, MEMBERS OF THE BOARD OF SPECIAL INQUIRY, ESTANISLAO CANTA, LEO MAGAHOM and BENJAMIN KALAW, petitioners, vs. HON. JOSELITO DELA ROSA, Presiding Judge, RTC Manila, Branch 29, WILLIAM T. GATCHALIAN,respondents.

BOARD OF COMMISSIONERS (COMMISSION ON IMMIGRATION AND DEPORTATION), BOARD OF SPECIAL INQUIRY, COMMISSIONER ANDREA D. DOMINGO, ASSOCIATE COMMISSIONER JORGE V. SARMIENTO, ACTING ASSOCIATE COMMISSIONER REGINO R. SANTIAGO, MEMBERS OF THE BOARD OF SPECIAL INQUIRY, ESTANISLAO CANTA, LEO MAGAHOM and BENJAMIN KALAW, petitioners, vs. HON. TERESITA DIZON CAPULONG, Presiding Judge, RTC Branch 172, Valenzuela, Metro Manila, DEE HUA T. GATCHALIAN, SHERWING T. GATCHALIAN, KENNETH T. GATCHALIAN, REXLON T. GATCHALIAN, and WESLIE T. GATCHALIAN, respondents.

G.R. Nos. 95612-13 May 31, 1991

WILLIAM T. GATCHALIAN, petitioner, vs. BOARD OF COMMISSIONERS (COMMISSION ON IMMIGRATION AND DEPORTATION), et al., respondents.

The Solicitor General for petitioners. edesma, Saludo & Associates for respondent William Gatchalian.

Cervo and Tanay Law Office for respondent T.D. Capulong, D.H.T. Gatchalian, et al.

BIDIN, J.:p

This is a petition for certiorari and prohibition filed by the Solicitor General seeking 1) to set aside the Resolution/Temporary Restraining Order dated September 7, 1990, issued by respondent Judge de la Rosa in Civil Case No. 90-54214 which denied petitioners' motion to dismiss and restrained petitioners from commencing or continuing with any of the proceedings which would lead to the deportation of respondent William Gatchalian, docketed as D.C. No. 90-523, as well as the Order of respondent Judge Capulong dated September 6, 1990 in Civil Case No. 3431-V-90 which likewise enjoined petitioners from proceeding with the deportation charges against respondent Gatchalian, and 2) to prohibit respondent judges from further acting in the aforesaid civil cases.

On October 23, 1990, respondent Gatchalian filed his Comment with Counter- Petition, docketed as G.R. Nos. 96512-13, alleging lack of jurisdiction on the part of respondent Board of Commissioners, et al., over his person with prayer that he be declared a Filipino citizen, or in the alternative, to remand the case to the trial court for further proceedings.

On December 13, 1990, petitioners filed their comment to respondent Gatchalian's counter-petition. The Court considers the comment filed by respondent Gatchalian as answer to the petition and petitioners' comment as answer to the counter- petition and gives due course to the petitions.

There is no dispute as to the following facts:

On July 12, 1960, Santiago Gatchalian, grandfather of William Gatchalian, was recognized by the Bureau of Immigration as a native born Filipino citizen following the citizenship of his natural mother, Marciana Gatchalian (Annex "1", counter- petition). Before the Citizenship Evaluation Board, Santiago Gatchalian testified that he has five (5) children with his wife Chu Gim Tee, namely: Jose Gatchalian, Gloria Gatchalian, Francisco Gatchalian, Elena Gatchalian and Benjamin Gatchalian (Annex "2", counter-petition).

On June 27, 1961, William Gatchalian, then a twelve-year old minor, arrived in Manila from Hongkong together with Gloria, Francisco, and Johnson, all surnamed Gatchalian. They had with them Certificates of Registration and Identity issued by the Philippine Consulate in Hongkong based on a cablegram bearing the signature of the then Secretary of Foreign Affairs, Felixberto Serrano, and sought admission as Filipino citizens. Gloria and Francisco are the daughter and son, respectively, of Santiago Gatchalian; while William and Johnson are the sons of Francisco.

After investigation, the Board of Special Inquiry No. 1 rendered a decision dated July 6, 1961, admitting William Gatchalian and his companions as Filipino citizens (Annex "C", petition). As a consequence thereof, William Gatchalian was issued Identification Certificate No. 16135 by the immigration authorities on August 16, 1961 (Annex "D", petition).

On January 24, 1962, the then Secretary of Justice issued Memorandum No. 9 setting aside all decisions purporting to have been rendered by the Board of Commissioners on appeal or on review motu proprio of decisions of the Board of Special Inquiry. The same memorandum directed the Board of Commissioners to review all cases where entry was allowed on the ground that the entrant was a Philippine citizen. Among those cases was that of William and others.

On July 6, 1962, the new Board of Commissioners, after a review motu proprio of the proceedings had in the Board of Special Inquiry, reversed the decision of the latter and ordered the exclusion of, among others, respondent Gatchalian (Annex "E", petition). A warrant of exclusion also dated July 6, 1962 was issued alleging that "the decision of the Board of Commissioners dated July 6, 1962 . . . has now become final and executory (Annex "F", petition).

The actual date of rendition of said decision by the Board of Commissioners (whether on July 6, 1962 or July 20, 1962) became the subject of controversy in the 1967 case of Arocha vs. Vivo (21 SCRA 532) wherein this Court sustained the validity of the decision of the new Board of Commissioners having been promulgated on July 6, 1962, or within the reglementary period for review.

Sometime in 1973, respondent Gatchalian, as well as the others covered by the July 6, 1962 warrant of exclusion, filed a motion for re-hearing with the Board of Special Inquiry where the deportion case against them was assigned.

On March 14, 1973, the Board of Special Inquiry recommended to the then Acting Commissioner Victor Nituda the reversal of the July 6, 1962 decision of the then Board of Commissioners and the recall of the warrants of arrest issued therein (Annex "5", counter-petition).

On March 15, 1973, Acting Commissioner Nituda issued an order reaffirming the July 6, 1961 decision of the Board of Special Inquiry thereby admitting respondent Gatchalian as a Filipino citizen and recalled the warrant of arrest issued against him (Annex "6", counter-petition). On June 7, 1990, the acting director of the National Bureau of Investigation wrote the Secretary of Justice recommending that respondent Gatchalian along with the other applicants covered by the warrant of exclusion dated July 6, 1962 be charged with violation of Sec. 37 (a), pars. 1 and 2, in relation to Secs. 45 (c), and (d) and (e) of Commonwealth Act No. 613, as amended, also known as the Immigration Act of 1940 (Annex "G", petition).

On August 1, 1990, the Secretary of Justice indorsed the recommendation of the NBI to the Commissioner of Immigration for investigation and immediate action (Annex "20", counter-petition).

On August 15, 1990, petitioner Commissioner Domingo of the Commission of Immigration and Deportation *issued a mission order commanding the arrest of respondent William Gatchalian (Annex "18", counter-petition). The latter appeared before Commissioner Domingo on August 20, 1990 and was released on the same day upon posting P200,000.00 cash bond.

On August 29, 1990, William Gatchalian filed a petition for certiorari and prohibition with injunction before the Regional Trial Court of Manila, Br. 29, presided by respondent Judge dela Rosa, docketed as Civil Case No. 90-54214.

On September 4, 1990, petitioners filed a motion to dismiss Civil Case No. 90-54214 alleging that respondent judge has no jurisdiction over the Board of Commissioners and/or the Board of Special Inquiry. Nonetheless, respondent judge dela Rosa issued the assailed order dated September 7, 1990, denying the motion to dismiss.

Meanwhile, on September 6, 1990, respondent Gatchalian's wife and minor children filed before the Regional Trial Court of Valenzuela, Metro Manila, Br. 172, presided by respondent judge Capulong Civil Case No. 3431-V-90 for injunction with writ of preliminary injunction. The complaint alleged, among others, that petitioners acted without or in excess of jurisdiction in the institution of deportation proceedings against William. On the same day, respondent Capulong issued the questioned temporary restraining order restraining petitioners from continuing with the deportation proceedings against William Gatchalian.

The petition is anchored on the following propositions: 1) respondent judges have no jurisdiction over petitioners (Board of Commissioners, et al.,) and the subject matter of the case, appellate jurisdiction being vested by BP 129 with the Court of Appeals; 2) assuming respondent judges have jurisdiction, they acted with grave abuse of discretion in preempting petitioners in the exercise of the authority and jurisdiction to hear and determine the deportation case against respondent Gatchalian, and in the process determine also his citizenship; 3) respondent judge dela Rosa gravely abused his discretion in ruling that the issues raised in the deportation proceedings are beyond the competence and jurisdiction of petitioners, thereby disregarding the cases of Arocha vs. Vivo and Vivo vs. Arca (supra), which put finality to the July 6, 1962 decision of the Board of Commissioners that respondent Gatchalian is a Chinese citizen; and 4) respondent judge Capulong should have dismissed Civil Case No. 3431-V-90 for forum-shopping.

In his counter-petition, William Gatchalian alleges among others that: 1) assuming that the evidence on record is not sufficient to declare him a Filipino citizen, petitioners have no jurisdiction to proceed with the deportation case until the courts shall have finally resolved the question of his citizenship; 2) petitioners can no longer judiciously and fairly resolve the question of respondent's citizenship in the deportation case because of their bias, pre-judgment and prejudice against him; and 3) the ground for which he is sought to be deported has already prescribed.

For purposes of uniformity, the parties herein will be referred to in the order the petitions were filed.

Petitioners argue that under Sec. 9 (3) of BP 129, it is the Court of Appeals which has exclusive appellate jurisdiction over all final judgments or orders of quasi- judicial agencies, boards or commissions, such as the Board of Commissioners and the Board of Special Inquiry.

Respondent, on the other hand, contends that petitioners are not quasi-judicial agencies and are not in equal rank with Regional Trial Courts.

Under Sec. 21 (1) of Batas Pambansa Blg. 129, the Regional Trial Courts have concurrent jurisdiction with this Court and the Court of Appeals to issue "writs of certiorari, prohibition, mandamus, quo warranto, habeas corpusand injunction which may be enforced in any part of their respective regions, . . ." Thus, the RTCs are vested with the power to determine whether or not there has been a grave abuse of discretion on the part of any branch or instrumentality of the government.

It is true that under Sec. 9 (3) of Batas Pambansa Blg. 129, the Court of Appeals is vested with —

(3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, order, or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, board or commission, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the provisions of this Act, and of sub-paragraph (1) of the third paragraph of and sub-paragraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948.

It does not provide, however, that said exclusive appellate jurisdiction of the Court of Appeals extends to all quasi-judicial agencies. The quasi-judicial bodies whose decisions are exclusively appealable to the Court of Appeals are those which under the law, Republic Act No. 5434, or their enabling acts, are specifically appealable to the Court of Appeals (Presidential Anti-Dollar Salting Task Force vs. Court of Appeals, 171 SCRA 348 [1989]; Lupangco vs. Court of Appeals, 160 SCRA 848 [1988]). Thus, under Republic Act No. 5434, it is specifically provided that the decisions of the Land Registration Commission (LRC), the Social Security Commission (SSC), Civil Aeronautics Board (CAB), the Patent Office and the Agricultural Invention Board are appealable to the Court of Appeals.

In the Presidential Anti-Dollar Salting Task Force (supra), this Court clarified the matter when We ruled:

Under our Resolution dated January 11, 1983:

. . . The appeals to the Intermediate Appellate Court (now Court of Appeals) from quasi-judicial bodies shall continue to be governed by the provisions of Republic Act No. 5434 insofar as the same is not inconsistent with the provisions of B.P. Blg. 129.

The pertinent provisions of Republic Act No. 5434 are as follows:

Sec. 1. Appeals from specified agencies.— Any provision of existing law or Rules of Court to the contrary notwithstanding, parties aggrieved by a final ruling, award, order, or decision, or judgment of the Court of Agrarian Relations; the Secretary of Labor under Section 7 of Republic Act Numbered Six hundred and two, also known as the "Minimum Wage Law"; the Department of Labor under Section 23 of Republic Act Numbered Eight hundred seventy-five, also known as the "Industrial Peace Act"; the Land Registration Commission; the Social Security Commission; the Civil Aeronautics Board; the Patent Office and the Agricultural Inventions Board, may appeal therefrom to the Court of Appeals, within the period and in the manner herein provided, whether the appeal involves questions of fact, mixed questions of fact and law, or questions of law, or all three kinds of questions. From final judgments or decisions of the Court of Appeals, the aggrieved party may appeal by certiorari to the Supreme Court as provided under Rule 45 of the Rules of Court.

Because of subsequent amendments, including the abolition of various special courts, jurisdiction over quasi-judicial bodies has to be, consequently, determined by the corresponding amendatory statutes. Under the Labor Code, decisions and awards of the National Labor Relations Commission are final and executory, but, nevertheless, reviewable by this Court through a petition for certiorariand not by way of appeal.

Under the Property Registration Decree, decision of the Commission of Land Registration, en consulta, are appealable to the Court of Appeals.

The decisions of the Securities and Exchange Commission are likewise appealable to the Appellate Court, and so are decisions of the Social Security Commission.

As a rule, where legislation provides for an appeal from decisions of certain administrative bodies to the Court of Appeals, it means that such bodies are co- equal with the Regional Trial Courts, in terms of rank and stature, and logically, beyond the control of the latter. (Emphasis supplied) There are quasi-judicial agencies, as the National Labor Relations Commissions, whose decisions are directly appealable to this Court. It is only when a specific law, as Republic Act No. 5434, provides appeal from certain bodies or commissions to the Court of Appeals as the Land Registration Commission (LRC), Securities and Exchange Commission (SEC) and others, that the said commissions or boards may be considered co-equal with the RTCs in terms of rank, stature and are logically beyond the control of the latter.

However, the Bureau of Immigration (or CID) is not among those quasi-judicial agencies specified by law whose decisions, orders, and resolutions are directly appealable to the Court of Appeals. In fact, its decisions are subject to judicial review in accordance with Sec. 25, Chapter 4, Book VII of the 1987 Administrative Code, which provides as follows:

Sec. 25. Judicial Review.—(1) Agency decisions shall be subject to judicial review in accordance with this chapter and applicable laws. xxx xxx xxx

(6) The review proceeding shall be filed in the court specified in the statute or, in the absence thereof, in any court of competent jurisdiction in accordance with the provisions on venue of the Rules of Court.

Said provision of the Administrative Code, which is subsequent to B.P. Blg. 129 and which thus modifies the latter, provides that the decision of an agency like the Bureau of Immigration should be subject to review by the court specified by the statute or in the absence thereof, it is subject to review by any court of competent jurisdiction in accordance with the provisions on venue of the Rules of Court.

B.P. Blg. 129 did not intend to raise all quasi-judicial bodies to the same level or rank of the RTC except those specifically provided for under the law as aforestated. As the Bureau of Immigration is not of equal rank as the RTC, its decisions may be appealable to, and may be reviewed through a special civil action for certiorari by, the RTC (Sec. 21, (1) BP 129).

True, it is beyond cavil that the Bureau of Immigration has the exclusive authority and jurisdiction to try and hear cases against an alleged alien, and in the process, determine also their citizenship (Lao Gi vs. Court of Appeals, 180 SCRA 756 [1989]). And a mere claim of citizenship cannot operate to divest the Board of Commissioners of its jurisdiction in deportation proceedings (Miranda vs. Deportation Board, 94 Phil. 531 [1954]).

However, the rule enunciated in the above-cases admits of an exception, at least insofar as deportation proceedings are concerned. Thus, what if the claim to citizenship of the alleged deportee is satisfactory? Should the deportation proceedings be allowed to continue or should the question of citizenship be ventilated in a judicial proceeding? In Chua Hiong vs. Deportation Board (96 Phil. 665 [1955]), this Court answered the question in the affirmative, and We quote:

When the evidence submitted by a respondent is conclusive of his citizenship, the right to immediate review should also be recognized and the courts should promptly enjoin the deportation proceedings. A citizen is entitled to live in peace, without molestation from any official or authority, and if he is disturbed by a deportation proceeding, he has the unquestionable right to resort to the courts for his protection, either by a writ of habeas corpus or of prohibition, on the legal ground that the Board lacks jurisdiction. If he is a citizen and evidence thereof is satisfactory, there is no sense nor justice in allowing the deportation proceedings to continue, granting him the remedy only after the Board has finished its investigation of his undesirability.

. . . And if the right (to peace) is precious and valuable at all, it must also be protected on time, to prevent undue harassment at the hands of ill-meaning or misinformed administrative officials. Of what use is this much boasted right to peace and liberty if it can be availed of only after the Deportation Board has unjustly trampled upon it, besmirching the citizen's name before the bar of public opinion? (Emphasis supplied)

The doctrine of primary jurisdiction of petitioners Board of Commissioners over deportation proceedings is, therefore, not without exception (Calacday vs. Vivo, 33 SCRA 413 [1970]; Vivo vs. Montesa, 24 SCRA 155 [1967]). Judicial intervention, however, should be granted only in cases where the "claim of citizenship is so substantial that there are reasonable grounds to believe that the claim is correct. In other words, the remedy should be allowed only on sound discretion of a competent court in a proper proceeding (Chua Hiong vs. Deportation Board, supra; Co. vs. Deportation Board, 78 SCRA 107 [1977]). It appearing from the records that respondent's claim of citizenship is substantial, as We shall show later, judicial intervention should be allowed.

In the case at bar, the competent court which could properly take cognizance of the proceedings instituted by respondent Gatchalian would nonetheless be the Regional Trial Court and not the Court of Appeals in view of Sec. 21 (1), BP 129, which confers upon the former jurisdiction over actions for prohibition concurrently with the Court of Appeals and the Supreme Court and in line with the pronouncements of this Court in Chua Hiong and Cocases.

Ordinarily, the case would then be remanded to the Regional Trial Court. But not in the case at bar. Considering the voluminous pleadings submitted by the parties and the evidence presented, We deem it proper to decide the controversy right at this instance. And this course of action is not without precedent for "it is a cherished rule of procedure for this Court to always strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seeds of future litigation. No useful purpose will be served if this case is remanded to the trial court only to have its decision raised again to the Court of Appeals and from there to this Court" (Marquez vs. Marquez, 73 Phil. 74; Keramic Industries, Inc. vs. Guerrero, 61 SCRA 265 [1974]) Alger Electric, Inc. vs. Court of Appeals (135 SCRA 37 [1985]), citing Gayos vs. Gayos (67 SCRA 146 [1975]).

In Lianga Bay Logging Co., Inc. vs. Court of Appeals (157 SCRA 357 [1988]), We also stated:

Remand of the case to the lower court for further reception of evidence is not necessary where the court is in a position to resolve the dispute based on the records before it. On many occasions, the Court, in the public interest and the expeditious administration of justice, has resolved actions on the merits instead of remanding them to the trial court for further proceedings, such as where the ends of justice would not be subserved by the remand of the case or when public interest demands an early disposition of the case or where the trial court had already received all the evidence of the parties (Quisumbing vs. CA, 112 SCRA 703; Francisco, et al., vs. The City of Davao, et al., supra; Republic vs. Security Credit & Acceptance Corp., et al., 19 SCRA 58; Samal vs. CA, supra; Republic vs. Central Surety & Insurance Co., 25 SCRA 641).

Likewise in Tejones vs. Gironella (159 SCRA 100 [1988]), We said:

Sound practice seeks to accommodate the theory which avoids waste of time, effort and expense, both to the parties and the government, not to speak of delay in the disposal of the case (cf.Fernandez vs. Garcia, 92 Phil. 592, 297). A marked characterstic of our judicial set-up is that where the dictates of justice so demand . . . the Supreme Court should act, and act with finality (Li Siu Liat vs. Republic, 21 SCRA 1039, 1046, citing Samal vs. CA, 99 Phil. 230 and US vs. Gimenez, 34 Phil. 74.) (Beautifont, Inc. vs. Court of appeals, et al., Jan. 29, 1988; See also Labo vs. Commission on Elections, 176 SCRA 1 [1989]).

Respondent Gatchalian has adduced evidence not only before the Regional Trial Court but also before Us in the form of public documents attached to his pleadings. On the other hand, Special Prosecutor Renato Mabolo in his Manifestation (dated September 6, 1990; Rollo, p. 298, counter-petition) before the Bureau of Immigration already stated that there is no longer a need to adduce evidence in support of the deportation charges against respondent. In addition, petitioners invoke that this Court's decision in Arocha vs. Vivo and Vivo vs. Arca (supra), has already settled respondent's alienage. Hence, the need for a judicial determination of respondent's citizenship specially so where the latter is not seeking admission, but is already in the Philippines (for the past thirty [30] years) and is being expelled (Chua Hiong vs. Deportation Board, supra).

According to petitioners, respondent's alienage has been conclusively settled by this Court in the Arocha and Vivocases, We disagree. It must be noted that in said cases, the sole issue resolved therein was the actual date of rendition of the July 6, 1962 decision of the then board of Commissioners, i.e., whether the decision was rendered on July 6, 1962 or on July 20, 1962 it appearing that the figure (date) "20" was erased and over it was superimposed the figure "6" thereby making the decision fall within the one-year reglementary period from July 6, 1961 within which the decision may be reviewed. This Court did not squarely pass upon any question of citizenship, much less that of respondent's who was not a party in the aforesaid cases. The said cases originated from a petition for a writ of habeas corpus filed on July 21, 1965 by Macario Arocha in behalf of Pedro Gatchalian. Well settled is the rule that a person not party to a case cannot be bound by a decision rendered therein.

Neither can it be argued that the Board of Commissioners' decision (dated July 6, 1962) finding respondent's claim to Philippine citizenship not satisfactorily proved, constitute res judicata. For one thing, said decision did not make any categorical statement that respondent Gatchalian is a Chinese. Secondly, the doctrine of res judicatadoes not apply to questions of citizenship (Labo vs. Commission on Elections (supra); citing Soria vs. Commissioner of Immigration, 37 SCRA 213; Lee vs. Commissioner of Immigration, 42 SCRA 561 [1971]; Sia Reyes vs. Deportation Board, 122 SCRA 478 [1983]).

In Moy Ya Lim vs. Commissioner of Immigration (41 SCRA 292 [1971]) and in Lee vs. Commissioner of Immigration (supra), this Court declared that:

(e)verytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the corresponding court or administrative authority decides therein as to such citizenship is generally not considered as res adjudicata, hence it has to be threshed out again and again as the occasion may demand.

An exception to the above rule was laid by this Court in Burca vs. Republic (51 SCRA 248 [1973]), viz:

We declare it to be a sound rule that where the citizenship of a party in a case is definitely resolved by a court or by an administrative agency, as a material issue in the controversy, after a full-blown hearing with the active participation of the Solicitor General or his authorized representative, and this finding or the citizenship of the party is affirmed by this Court, the decision on the matter shall constitute conclusive proof of such party's citizenship in any other case or proceeding. But it is made clear that in no instance will a decision on the question of citizenship in such cases be considered conclusive or binding in any other case or proceeding, unless obtained in accordance with the procedure herein stated.

Thus, in order that the doctrine of res judicata may be applied in cases of citizenship, the following must be present: 1) a person's citizenship must be raised as a material issue in a controversy where said person is a party; 2) the Solicitor General or his authorized representative took active part in the resolution thereof, and 3) the finding or citizenship is affirmed by this Court.

Gauged by the foregoing, We find the pre-conditions set forth in Burca inexistent in the Arocha and Vivo cases relied upon by petitioners. Indeed, respondent William Gatchalian was not even a party in said cases.

Coming now to the contention of petitioners that the arrest of respondent follows as a matter of consequence based on the warrant of exclusion issued on July 6, 1962, coupled with the Arocha and Vivo cases (Rollo, pp. 33), the Court finds the same devoid of merit.

Sec. 37 (a) of Commonwealth Act No. 613, as amended, otherwise known as the Immigration Act of 1940, reads:

Sec. 37. (a) The following aliens shall be arrested upon the warrant of the Commissioner of Immigration or of any other officer designated by him for the purpose and deported upon the warrant of the Commissioner of Immigration after a determination by the Board of Commissioner of the existence of the ground for deportation as charged against the alien. (Emphasis supplied)

From a perusal of the above provision, it is clear that in matters of implementing the Immigration Act insofar as deportation of aliens are concerned, the Commissioner of Immigration may issue warrants of arrest only after a determination by the Board of Commissioners of the existence of the ground for deportation as charged against the alien. In other words, a warrant of arrest issued by the Commissioner of Immigration, to be valid, must be for the sole purpose of executing a final order of deportation. A warrant of arrest issued by the Commissioner of Immigration for purposes of investigation only, as in the case at bar, is null and void for being unconstitutional (Ang Ngo Chiong vs. Galang, 67 SCRA 338 [1975] citing Po Siok Pin vs. Vivo, 62 SCRA 363 [1975]; Vivo vs. Montesa, 24 SCRA 155; Morano vs. Vivo, 20 SCRA 562; Qua Chee Gan vs. Deportation Board, 9 SCRA 27 [1963]; Ng Hua To vs. Galang, 10 SCRA 411; see also Santos vs. Commissioner of Immigration, 74 SCRA 96 [1976]).

As We held in Qua Chee Gan vs. Deportation Board (supra), "(t)he constitution does not distinguish warrants between a criminal case and administrative proceedings. And if one suspected of having committed a crime is entitled to a determination of the probable cause against him, by a judge, why should one suspected of a violation of an administrative nature deserve less guarantee?" It is not indispensable that the alleged alien be arrested for purposes of investigation. If the purpose of the issuance of the warrant of arrest is to determine the existence of probable cause, surely, it cannot pass the test of constitutionality for only judges can issue the same (Sec. 2, Art. III, Constitution). A reading of the mission order/warrant of arrest (dated August 15, 1990; Rollo, p. 183, counter-petition) issued by the Commissioner of Immigration, clearly indicates that the same was issued only for purposes of investigation of the suspects, William Gatchalian included. Paragraphs 1 and 3 of the mission order directs the Intelligence Agents/Officers to: xxx xxx xxx

1. Make a warrantless arrest under the Rules of Criminal Procedure, Rule 113, Sec. 5, for violation of the Immigration Act, Sec. 37, para. a; Secs. 45 and 46 Administrative Code; xxx xxx xxx

3. Deliver the suspect to the Intelligence Division and immediately conduct custodial interrogation, after warning the suspect that he has a right to remain silent and a right to counsel; . . .

Hence, petitioners' argument that the arrest of respondent was based, ostensibly, on the July 6, 1962 warrant of exclusion has obviously no leg to stand on. The mission order/warrant of arrest made no mention that the same was issued pursuant to a final order of deportation or warrant of exclusion.

But there is one more thing that militates against petitioners' cause. As records indicate, which petitioners conveniently omitted to state either in their petition or comment to the counter-petition of respondent, respondent Gatchalian, along with others previously covered by the 1962 warrant of exclusion, filed a motion for rehearing before the Board of Special Inquiry (BSI) sometime in 1973.

On March 14, 1973, the Board of Special Inquiry, after giving due course to the motion for re-hearing, submitted a memorandum to the then Acting Commissioner Victor Nituda (Annex "5", counter-petition) recommending 1 the reconsideration of the July 6, 1962 decision of the then Board of Commissioners which reversed the July 6, 1961 decision of the then Board of Special Inquiry No. 1 and 2 the lifting of the warrants of arrest issued against applicants. The memorandum inferred that the "very basis of the Board of Commissioners in reversing the decision of the Board of Special Inquiry was due to a forged cablegram by the then Secretary of Foreign Affairs, . . ., which was dispatched to the Philippine Consulate in Hong Kong authorizing the registration of applicants as P.I. citizens." The Board of Special Inquiry concluded that "(i)f at all, the cablegram only led to the issuance of their Certificate(s) of Identity which took the place of a passport for their authorized travel to the Philippines. It being so, even if the applicants could have entered illegally, the mere fact that they are citizens of the Philippines entitles them to remain in the country." On March 15, 1973, then Acting Commissioner Nituda issued an Order (Annex "6", counter-petition) which affirmed the Board of Special Inquiry No. 1 decision dated July 6, 1961 admitting respondent Gatchalian and others as Filipino citizens; recalled the July 6, 1962 warrant of arrest and revalidated their Identification Certificates.

The above order admitting respondent as a Filipino citizen is the last official act of the government on the basis of which respondent William Gatchalian continually exercised the rights of a Filipino citizen to the present. Consequently, the presumption of citizenship lies in favor of respondent William Gatchalian.

There should be no question that Santiago Gatchalian, grandfather of William Gatchalian, is a Filipino citizen. As a matter of fact, in the very order of the BOC of July 6, 1962, which reversed the July 6, 1961 BSI order, it is an accepted fact that Santiago Gatchalian is a Filipino. The opening paragraph of said order states:

The claim to Filipino citizenship of abovenamed applicants is based on the citizenship of one Santiago Gatchalian whose Philippine citizenship was recognized by the Bureau of Immigration in an Order dated July 12, 1960. (Annex "37", Comment with Counter-Petition).

Nonetheless, in said order it was found that the applicants therein have not satisfactorily proven that they are the children and/or grandchildren of Santiago Gatchalian. The status of Santiago Gatchalian as a Filipino was reiterated in Arocha and Arca (supra) where advertence is made to the "applicants being the descendants of one Santiago Gatchalian, a Filipino." (at p. 539).

In the sworn statement of Santiago Gatchalian before the Philippine Consul in Hongkong in 1961 (Annex "1" to the Comment of petitioners to Counter-Petition), he reiterated his status as a Philippine citizen being the illegitimate child of Pablo Pacheco and Marciana Gatchalian, the latter being a Filipino; that he was born in Manila on July 25, 1905; and that he was issued Philippine Passport No. 28160 (PA- No. A91196) on November 18, 1960 by the Department of Foreign Affairs in Manila. In his affidavit of January 23, 1961 (Annex "5", counter-petition), Santiago reiterated his claim of Philippine citizenship as a consequence of his petition for cancellation of his alien registry which was granted on February 18, 1960 in C.E.B. No. 3660-L; and that on July 20, 1960, he was recognized by the Bureau of Immigration as a Filipino and was issued Certificate No. 1-2123.

The dissenting opinions of my esteemed brethrens, Messrs. Justices F.P. Feliciano and H.G. Davide, Jr., proposing to re-open the question of citizenship of Santiago Gatchalian at this stage of the case, where it is not even put in issue, is quite much to late. As stated above, the records of the Bureau of Immigration show that as of July 20, 1960, Santiago Gatchalian had been declared to be a Filipino citizen. It is a final decision that forecloses a re-opening of the same 30 years later. Petitioners do not even question Santiago Gatchalian's Philippine citizenship. It is the citizenship of respondent William Gatchalian that is in issue and addressed for determination of the Court in this case.

Furthermore, petitioners' position is not enhanced by the fact that respondent's arrest came twenty-eight (28) years after the alleged cause of deportation arose. Section 37 (b) of the Immigration Act states that deportation "shall not be effected . . . unless the arrest in the deportation proceedings is made within five (5) years after the cause of deportation arises." In Lam Shee vs. Bengzon (93 Phil. 1065 [1953]), We laid down the consequences of such inaction, thus:

There is however an important circumstance which places this case beyond the reach of the resultant consequence of the fraudulent act committed by the mother of the minor when she admitted that she gained entrance into the Philippines by making use of the name of a Chinese resident merchant other than that of her lawful husband, and that is, that the mother can no longer be the subject of deportation proceedings for the simple reason that more than 5 years had elapsed from the date of her admission. Note that the above irregularity was divulged by the mother herself, who in a gesture of sincerity, made an spontaneous admission before the immigration officials in the investigation conducted in connection with the landing of the minor on September 24, 1947, and not through any effort on the part of the immigration authorities. And considering this frank admission, plus the fact that the mother was found to be married to another Chinese resident merchant, now deceased, who owned a restaurant in the Philippines valued at P15,000 and which gives a net profit of P500 a month, the immigration officials then must have considered the irregularity not serious enough when, inspire of that finding, they decided to land said minor "as a properly documented preference quota immigrant" (Exhibit D). We cannot therefore but wonder why two years later the immigration officials would reverse their attitude and would take steps to institute deportation proceedings against the minor.

Under the circumstances obtaining in this case, we believe that much as the attitude of the mother would be condemned for having made use of an improper means to gain entrance into the Philippines and acquire permanent residence there, it is now too late, not to say unchristian, to deport the minor after having allowed the mother to remain even illegally to the extent of validating her residence by inaction, thus allowing the period of prescription to set in and to elapse in her favor. To permit his deportation at this late hour would be to condemn him to live separately from his mother through no fault of his thereby leaving him to a life of insecurity resulting from lack of support and protection of his family. This inaction or oversight on the part of immigration officials has created an anomalous situation which, for reasons of equity, should be resolved in favor of the minor herein involved. (Emphasis supplied)

In the case at bar, petitioners' alleged cause of action and deportation against herein respondent arose in 1962. However, the warrant of arrest of respondent was issued by Commissioner Domingo only on August 15, 1990 — 28 long years after. It is clear that petitioners' cause of action has already prescribed and by their inaction could not now be validly enforced by petitioners against respondent William Gatchalian. Furthermore, the warrant of exclusion dated July 6, 1962 was already recalled and the Identification certificate of respondent, among others, was revalidated on March 15, 1973 by the then Acting Commissioner Nituda.

It is also proposed in the dissenting opinions of Messrs. Justices Feliciano and Davide, Jr., that the BOC decision dated July 6, 1962 and the warrant of exclusion which was found to be valid in Arocha should be applicable to respondent William Gatchalian even if the latter was not a party to said case. They also opined that under Sec. 37 (b) of the Immigration Act, the five (5) years limitation is applicable only where the deportation is sought to be effected under clauses of Sec. 37 (b) other than clauses 2, 7, 8, 11 and 12 and that no period of limitation is applicable in deportations under clauses 2, 7, 8, 11 and 12.

The Court disagrees. Under Sec. 39 of the Immigration Act, it is reiterated that such deportation proceedings should be instituted within five (5) years. Section 45 of the same Act provides penal sanctions for violations of the offenses therein enumerated with a fine of "not more than P1,000.00 and imprisonment for not more than two (2) years and deportation if he is an alien." Thus:

Penal Provisions

Sec. 45. Any individual who—

(a) When applying for an immigration document personates another individual, or falsely appears in the name of deceased individual, or evades the immigration laws by appearing under an assumed name; fictitious name; or

(b) Issues or otherwise disposes of an immigration document, to any person not authorized by law to receive such document; or

(d) Being an alien, enters the Philippines without inspection and admission by the immigration officials, or obtains entry into the Philippines by wilful, false, or misleading representation or wilful concealment of a material fact; or

(e) Being an alien shall for any fraudulent purpose represent himself to be a Philippine citizen in order to evade any requirement of the immigration laws; or

(f) In any immigration matter shall knowingly make under oath any false statement or representations; or

(g) Being an alien, shall depart from the Philippines without first securing an immigration clearance certificates required by section twenty-two of this Act; or (h) Attempts or conspires with another to commit any of the foregoing acts, shall be guilty of an offense, and upon conviction thereof, shall be fined not more than one thousand pesos, and imprisoned for not more than two years, and deported if he is an alien. (Emphasis supplied)

Such offenses punishable by correctional penalty prescribe in 10 years (Art. 90, Revised Penal Code); correctional penalties also prescribe in 10 years (Art. 92, Revised Penal Code).

It must be noted, however, that under Sec. 1, Act No. 3326 [1926], as amended, (Prescription for Violations Penalized by Special Acts and Municipal Ordinances) "violations penalized by special acts shall, unless otherwise provided in such acts, prescribe in accordance with the following rules: . . .c) after eight years for those punished by imprisonment for two years or more, but less than six years; . . ."

Consequently, no prosecution and consequent deportation for violation of the offenses enumerated in the Immigration Act can be initiated beyond the eight-year prescriptive period, the Immigration Act being a special legislation.

The Court, therefore, holds that the period of effecting deportation of an alien after entry or a warrant of exclusion based on a final order of the BSI or BOC are not imprescriptible. The law itself provides for a period of prescription. Prescription of the crime is forfeiture or loss of the rights of the State to prosecute the offender after the lapse of a certain time, while prescription of the penalty is the loss or forfeiture by the government of the right to execute the final sentence after the lapse of a certain time (Padilla, Criminal Law, Vol. 1, 1974, at p. 855).

"Although a deportation proceeding does not partake of the nature of a criminal action, however, considering that it is a harsh and extraordinary administrative proceeding affecting the freedom and liberty of a person, the constitutional right of such person to due process should not be denied. Thus, the provisions of the Rules of Court of the Philippines particularly on criminal procedure are applicable to deportation proceedings." (Lao Gi vs. Court of Appeals, supra). Under Sec. 6, Rule 39 of the Rules of Court, a final judgment may not be executed after the lapse of five (5) years from the date of its entry or from the date it becomes final and executory. Thereafter, it may be enforced only by a separate action subject to the statute of limitations. Under Art. 1144 (3) of the Civil Code, an action based on judgment must be brought within 10 years from the time the right of action accrues.

In relation to Sec. 37 (b) of the Immigration Act, the rule, therefore, is:

1. Deportation or exclusion proceedings should be initiated within five (5) years after the cause of deportation or exclusion arises when effected under any other clauses other than clauses 2, 7, 8, 11 and 12 and of paragraph (a) of Sec. 37 of the Immigration Act; and 2. When deportation or exclusion is effected under clauses 2, 7, 8, 11 and 12 of paragraph (a) of Sec. 37, the prescriptive period of the deportation or exclusion proceedings is eight (8) years.

In the case at bar, it took petitioners 28 years since the BOC decision was rendered on July 6, 1962 before they commenced deportation or exclusion proceedings against respondent William Gatchalian in 1990. Undoubtedly, petitioners' cause of action has already prescribed. Neither may an action to revive and/or enforce the decision dated July 6, 1962 be instituted after ten (10) years (Art. 1144 [3], Civil Code).

Since his admission as a Filipino citizen in 1961, respondent William Gatchalian has continuously resided in the Philippines. He married Ting Dee Hua on July 1, 1973 (Annex "8", counter-petition) with whom he has four (4) minor children. The marriage contract shows that said respondent is a Filipino (Annex "8"). He holds passports and earlier passports as a Filipino (Annexes "9", "10" & "11", counter- petition). He is a registered voter of Valenzuela, Metro Manila where he has long resided and exercised his right of suffrage (Annex 12, counter-petition). He engaged in business in the Philippines since 1973 and is the director/officer of the International Polymer Corp. and Ropeman International Corp. as a Filipino (Annexes, "13" & "14", counter-petition). He is a taxpayer. Respondent claims that the companies he runs and in which he has a controlling investment provides livelihood to 4,000 employees and approximately 25,000 dependents. He continuously enjoyed the status of Filipino citizenship and discharged his responsibility as such until petitioners initiated the deportation proceedings against him.

"The power to deport an alien is an act of the State. It is an act by or under the authority of the sovereign power. It is a police measure against undesirable aliens whose presence in the country is found to be injurious to the public good and domestic tranquility of the people" (Lao Gi vs. Court of Appeals, supra). How could one who has helped the economy of the country by providing employment to some 4,000 people be considered undesirable and be summarily deported when the government, in its concerted drive to attract foreign investors, grants Special Resident Visa to any alien who invest at least US$50,000.00 in the country? Even assuming arguendo that respondent is an alien, his deportation under the circumstances is unjust and unfair, if not downright illegal. The action taken by petitioners in the case at bar is diametrically opposed to settled government policy.

Petitioners, on the other hand, claim that respondent is an alien. In support of their position, petitioners point out that Santiago Gatchalian's marriage with Chu Gim Tee in China as well as the marriage of Francisco (father of William) Gatchalian to Ong Chiu Kiok, likewise in China, were not supported by any evidence other than their own self-serving testimony nor was there any showing what the laws of China were. It is the postulate advanced by petitioners that for the said marriages to be valid in this country, it should have been shown that they were valid by the laws of China wherein the same were contracted. There being none, petitioners conclude that the aforesaid marriages cannot be considered valid. Hence, Santiago's children, including Francisco, followed the citizenship of their mother, having been born outside of a valid marriage. Similarly, the validity of the Francisco's marriage not having been demonstrated, William and Johnson followed the citizenship of their mother, a Chinese national.

After a careful consideration of petitioner's argument, We find that it cannot be sustained.

In Miciano vs. Brimo (50 Phil. 867 [1924]; Lim and Lim vs. Collector of Customs, 36 Phil. 472; Yam Ka Lim vs. Collector of Customs, 30 Phil. 46 [1915]), this Court held that in the absence of evidence to the contrary, foreign laws on a particular subject are presumed to be the same as those of the Philippines. In the case at bar, there being no proof of Chinese law relating to marriage, there arises the presumption that it is the same as that of Philippine law.

The lack of proof of Chinese law on the matter cannot be blamed on Santiago Gatchalian much more on respondent William Gatchalian who was then a twelve- year old minor. The fact is, as records indicate, Santiago was not pressed by the Citizenship Investigation Board to prove the laws of China relating to marriage, having been content with the testimony of Santiago that the Marriage Certificate was lost or destroyed during the Japanese occupation of China. Neither was Francisco Gatchalian's testimony subjected to the same scrutiny by the Board of Special Inquiry. Nevertheless, the testimonies of Santiago Gatchalian and Francisco Gatchalian before the Philippine consular and immigration authorities regarding their marriages, birth and relationship to each other are not self-serving but are admissible in evidence as statements or declarations regarding family reputation or tradition in matters of pedigree (Sec. 34, Rule 130). Furtheremore, this salutary rule of evidence finds support in substantive law. Thus, Art. 267 of the Civil Code provides:

Art. 267. In the absence of a record of birth, authentic document, final judgment or possession of status, legitimate filiation may be proved by any other means allowed by the Rules of Court and special laws. (See also Art. 172 of the Family Code)

Consequently, the testimonies/affidavits of Santiago Gatchalian and Francisco Gatchalian aforementioned are not self-serving but are competent proof of filiation (Art. 172 [2], Family Code).

Philippine law, following the lex loci celebrationis, adheres to the rule that a marriage formally valid where celebrated is valid everywhere. Referring to marriages contracted abroad, Art. 71 of the Civil Code (now Art. 26 of the Family Code) provides that "(a)ll marriages performed outside of the Philippines in accordance with the laws in force in the country where they were performed, and valid there as such, shall also be valid in this country . . ." And any doubt as to the validity of the matrimonial unity and the extent as to how far the validity of such marriage may be extended to the consequences of the coverture is answered by Art. 220 of the Civil Code in this manner: "In case of doubt, all presumptions favor the solidarity of the family. Thus, every intendment of law or facts leans toward the validity of marriage, the indissolubility of the marriage bonds, the legitimacy of children, the community of property during marriage, the authority of parents over their children, and the validity of defense for any member of the family in case of unlawful aggression." (Emphasis supplied). Bearing in mind the "processual presumption" enunciated in Miciano and other cases, he who asserts that the marriage is not valid under our law bears the burden of proof to present the foreign law.

Having declared the assailed marriages as valid, respondent William Gatchalian follows the citizenship of his father Francisco, a Filipino, as a legitimate child of the latter. Francisco, in turn is likewise a Filipino being the legitimate child of Santiago Gatchalian who (the latter) is admittedly a Filipino citizen whose Philippine citizenship was recognized by the Bureau of Immigration in an order dated July 12, 1960.

Finally, respondent William Gatchalian belongs to the class of Filipino citizens contemplated under Sec. 1, Article IV of the Constitution, which provides:

Sec. 1. The following are citizens of the Philippines:

(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution. . . .

This forecloses any further question about the Philippine citizenship of respondent William Gatchalian.

The Court is not unaware of Woong Woo Yiu vs. Vivo (13 SCRA 552 [1965]) relied upon by petitioners. The ruling arrived thereat, however, cannot apply in the case at bar for the simple reason that the parties therein testified to have been married in China by a village leader, which undoubtedly is not among those authorized to solemnize marriage as provided in Art. 56 of the Civil Code (now Art. 7, Family Code).

Premises considered, the Court deems it unnecessary to resolve the other issues raised by the parties.

WHEREFORE, G.R. Nos. 95122-23 is DISMISSED for lack of merit; G.R. Nos. 95612-13 is hereby GRANTED and respondent William Gatchalian is declared a Filipino citizen. Petitioners are hereby permanently enjoined from continuing with the deportation proceedings docketed as DC No. 90-523 for lack of jurisdiction over respondent Gatchalian, he being a Filipino citizen; Civil Cases No. 90-54214 and 3431-V-90 pending before respondent judges are likewise DISMISSED. Without pronouncement as to costs.

SO ORDERED.

Gutierrez, Jr., Gancayco, Sarmiento, Griño-Aquino and Medialdea, JJ., concur.

Fernan, C.J., and Narvasa, J., concur in the result.

Separate Opinions

DAVIDE, JR., J., concurring-dissenting:

I can easily agree with the summary of antecedent facts in the ponencia of Mr. Justice Bidin and the reiteration therein of the established doctrine that the Bureau of Immigration has the exclusive authority and jurisdiction to try and hear cases against alleged aliens, and in the process, determine also their citizenship, and that "a mere claim of citizenship cannot operate to divest the Board of Commissioners of its jurisdiction in deportation proceedings." I also agree with the conclusion that the petitioners in G.R. No. 95122-23, the Board of Commissioners and Board of Special Inquiry, hereinafter referred to as the Boards, are quasi-judicial bodies.

However, I cannot go along with the view that the case of William Gatchalian should be treated as an exception to that doctrine and, above all, to the law which vests upon the Court of Appeals exclusive appellate jurisdiction over the Boards. Neither can I have solidarity with his opinion that this Court should, in this instance, rule on the citizenship of Mr. Gatchalian instead of remanding the case to the Regional Trial Court. To grant him these benefits would do violence to the law, liberally stretch the limits of the exceptions or misapply the exceptionary rule, and to unduly pollute the settled doctrine. No fact or circumstance exists to justify the application of the exceptions for the benefit of Mr. Gatchalian. On the contrary, substantial facts exist to render immutable the unqualified application of the law and the doctrine.

To my mind, the questioned acts of the Boards were done absolutely within their quasi-judicial functions. Therefore, the rule laid down in Filipinas Engineering and Machine Shop vs. Ferrer (135 SCRA 25) and Lupangco vs. Court of Appeals (160 SCRA 848) does not apply.

Consequently, pursuant to paragraph 3 of Section 9 of Batas Pambansa Blg. 129, and Our resolutions of 15 September 1987 and 2 April 1990 in G.R. No. 79635 (Commissioner of Customs vs. Court of Tax Appeals, et al.) and G.R. No. 80320 (Commissioner of Internal Revenue vs. Court of Tax Appeals, et al.), respectively, and Our decisions of 16 March 1989, 22 December 1989, and 6 June 1990 in G.R. No. 83578 (Presidential Anti-Dollar Salting Task Force vs. Court of Appeals, et al.), 171 SCRA 348, G.R. No. 86625 (Development Bank of the Philippines vs. Court of Tax Appeals, et al.), 180 SCRA 609, 617, and in G.R. No. L-48113 (Yang vs. Court of Appeals, et al.), respectively, the Gatchalians should have invoked the exclusive appellate jurisdiction of the Court of Appeals for appropriate redress instead of filing petitions for certiorari and prohibition with injunction before the Regional Trial Court of Manila (Civil Case No. 90-54214) and before the Regional Trial Court of Valenzuela, Metro Manila (Civil Case No. 3431-V-90). The trial courts should have dismissed the cases. In issuing the questioned orders, respondents Judge Dela Rosa and Judge Capulong clearly acted without jurisdiction or with grave abuse of discretion.

As to why William Gatchalian filed his petition before the former court and his wife and minor children filed a separate complaint before the latter has not been explained. It is to be noted that he is a registered voter of Valenzuela, Metro Manila where he has long resided and exercised his right of suffrage (Annex 12, Counter- Petition). Therefore, he should have filed his petition with the Regional Trial Court of Valenzuela. His wife and minor children are not parties to the case before the Commission on Immigration and Deportation. Their causes of action are based mainly on their claim that the acts of the Boards against William tend to deprive plaintiff mother consortium and connubium and the plaintiffs minors protection and support. At once, the viability of their causes of action is doubtful; however, if indeed they have valid causes of action, they could have been joined as co-plaintiffs in the case filed by William. It appears then that their filing of a separate complaint before another court was part of a strategy to frustrate the proceedings before the Boards. As correctly maintained by the petitioning Boards, we have here a clear case of forum-shopping, especially considering the fact that on September 4, 1990, or two days before the filing of the case before the Valenzuela court the government filed a motion to dismiss the case before the Manila court. Forum-shopping has long been condemned and proscribed. In People vs. Court of Appeals, et al. (101 SCRA 450, 463), promulgated on 28 November 1980, this Court held that a party "should not be allowed to pursue simultaneous remedies in two different forums." In the Resolution of 31 July 1986 in E. Razon Inc., et al. vs. Philippine Port Authority, et al., G.R. No. 75197, this Court held:

The acts of petitioners constitute a clear case of forum-shopping, an act of malpractice that is proscribed and condemned as trifling with the courts and abusing their processes. It is improper conduct that tends to degrade the administration of justice. (See also Buan vs. Lopez, Jr., 145 SCRA 34; Palm Avenue Realty Development Corp. vs. PCGG, 153 SCRA 591; Minister of Natural Resources, et al. vs. Heirs of Orval Hughes, et al., 155 SCRA 566; Limpin vs. IAC, 161 SCRA 98; Collado vs. Hernando, 161 SCRA 639; Villanueva, et al. vs. Adre, et al., 172 SCRA 877; Danville Maritime, Inc. vs. COA, 175 SCRA 717; Crisostomo vs. SEC, 179 SCRA 154; Adlawan vs. Tomol, 179 SCRA 42; and Alonto vs. Memoracion, 185 SCRA 73).

William Gatchalian did not stop in his forum-shopping in the regional trial courts. Under the guise of a counter-petition, he is now before this Court in an active offensive role. This is a very clever, albeit subtle, ploy to bang directly to this Court the issue of his deportation and to divest the Boards of their original jurisdiction thereon. He could have done this at the first instance; he did not. He and his wife and minor children deliberately chose, instead, to separately go to the wrong court, evidently to delay the proceedings before the Boards, which they accomplished when the two judges separately issued orders restraining said Boards from commencing or continuing with any of the proceedings which would lead to the deportation of William Gatchalian (Civil Case No. 90-54214) and from proceeding with the deportation charges against William Gatchalian (Civil Case No. 3431-V-90).

Chua Hiong vs. Deportation Board (96 Phil. 665) cited in the ponencia as another authority which allows William Gatchalian to enjoy the protective mantle of the exceptionary rule affecting the exclusive power of the Commission on Immigration and Deportation to try and hear cases against aliens and in the process also determine their citizenship is either not applicable or is mis-applied. This case laid down the principle that "when the evidence submitted by a respondent is conclusive of his citizenship, the right to immediate review should also be recognized and the courts should promptly enjoin the deportation proceedings. . . . If he is a citizen and evidence thereof is satisfactory, there is no sense nor justice in allowing the deportation proceedings to continue, granting him the remedy only after the Board has finished its investigation of his undesirability. . . ." (emphasis supplied). The word courts should not now be interpreted to mean or to include the regional trial courts because, as stated above, said courts do not have any appellate jurisdiction over the Commission on Immigration and Deportation, the Board of Commissioners and the Board of Special Inquiry. This case was decided in 1955 yet, or twenty-six years before the effectivity of Batas Pambansa Blg. 129.

The condition sine qua non then to an authorized judicial intervention is that the evidence submitted by a respondent is conclusive of his citizenship, or as stated in Co vs. Deportation Board, (78 SCRA 104, 107), the claim of citizenship is so substantial that there are no reasonable grounds for the belief that the claim is correct.

The facts before this Court do not constitute, or even show, a conclusive or substantial evidence that William Gatchalian is a Filipino citizen. On the contrary, very serious doubts surround such a claim from the beginning. His initial entry into the Philippines was made possible through a Certificate of Identity (as Filipino) which was issued on the basis of a forged cablegram by the then Secretary of Foreign Affairs. Then on 6 July 1962 the then new Board of Commissioners promulgated a written decision in I.C. Cases Nos. 61-2108-C to 61-2116-C inclusive (Application for admission as Philippine citizens of Jose, Elena, Benjamin, Juan, Pedro, Gloria, Francisco, William and Johnson, all surnamed Gatchalian) reversing the decision of the Board of Special Inquiry No. 1 of 6 July 1961 and ordering the exclusion of William Gatchalian and the others as aliens not properly documented. Accordingly, a warrant of exclusion, also dated 6 July 1962, was issued by the Commissioners commanding the deportation officer to exclude William Gatchalian, and others, and to cause their removal from the country on the first available transportation in accordance with law to the port of the country of which they were nationals. The pertinent portion of the Decision reads as follows:

The claim to Philippine citizenship of above-named applicants is based on the citizenship of one Santiago Gatchalian whose Philippine citizenship was recognized by the Bureau of Immigration in an Order, dated July 12, 1960. It is alleged that applicants JOSE GATCHALIAN, FRANCISCO GATCHALIAN, ELENA GATCHALIAN and BENJAMIN GATCHALIAN are the legitimate children of Santiago Gatchalian with one Chiu Gim Tee. Except for the self-serving testimonies of Santiago Gatchalian and his alleged children, there has not been submitted any evidence of Santiago Gatchalian's marriage to Chiu Gim Tee and the birth of the alleged children of the couple. The personal records of Santiago Gatchalian on file with this office do not reflect the names of applicants as his children, and while two names listed in his Form 1 (ACR application), Jose and Elena, bear the same name as two of herein applicants, the difference in the ages of said applicants, casts serious doubt on their identity. Apropos, the applicants JOSE GATCHALIAN, GLORIA GATCHALIAN, FRANCISCO GATCHALIAN, ELENA GATCHALIAN and BENJAMIN GATCHALIAN, not having satisfactorily proved as the children of Santiago Gatchalian, determination of the citizenship of the other applicants, JUAN GATCHALIAN, PEDRO GATCHALIAN and JOHNSON GATCHALIAN, whose right to Filipino citizenship are merely drawn from their fathers, Jose Gatchalian and Francisco Gatchalian, is unnecessary. (Decision, Annex "E" of Petition).

Looking back to the case of Santiago, William's alleged grandfather, I cannot find sufficient credible evidence to support his claim of Filipino citizenship. For a long time before 20 July 1960 he considered himself a Chinese citizen. The "conclusion" of the Bureau of Immigration that Santiago is a Filipino citizen is based on totally questionable and insufficient evidence which cannot inspire belief. The Order itself, signed by Associate Commissioner Felix Talabis, supports this conclusion. It reads in full as follows:

This is a petition for the cancellation of an alien registry of SANTIAGO GATCHALIAN, registered as Chinese and holder of ACR No. A-219003 issued at Manila on 13 February 1951 and ICR No. 7501 dated 3 May 1946. He is alleged to be the son of Filipino parents who were not lawfully married.

It is alleged that the petitioner was born in Binondo, Manila, on 25 July 1905, to Pablo Pacheco and Marciana Gatchalian. It is noted that in his application for alien registration filed with this Office on 13 January 1951, Santiago Gatchalian stated that his deceased parents were Pablo Pacheco and Marciana. He was identified by his only brother, Joaquin Pacheco, who insisted that he and petitioner are illegitimate. It is true that, on record, there is a certificate signed on 26 October 1902 by Maxima Gatchalian, their maternal grandmother, giving consent to the marriage of Marciana Gatchalian to Pablo Pacheco (Exh. B), but Joaquin said that his parents did not actually get married. In proof of this, the baptismal record of the petitioner expressly states that Santiago Gatchalian was born on 25 July 1905 and baptized on 6 October 1905, being the son of Marciana Gatchalian, "filipina", and an unknown father (verbatim copy dated 22 June 1907, Parish Priest of Binondo, Manila).

The petitioner, apparently not completely certain about his civil status, has been interchangeably using his paternal and maternal surnames. In school he was known as Santiago Pacheco (Class card for 1920-21, Meisic, Manila; Certificates of completion of third and fourth grades, Meisic Primary School); but in his residence certificate dated 17 September 1937, and in Tax Clearance Certificate issued on 2 October 1937, he is referred to as Santiago Gatchalian; and in a communication dated 6 June 1941, he was addressed to as Santiago Pacheco by the Philippine Charity Sweepstakes office.

Considering, however, the positive assertion by his elder brother who is better informed about their origin, the incontestable entry in his baptismal record that he is illegitimate and the entry in the marriage contract of his elder brother wherein the father's name is omitted and the mother, Marciana Gatchalian, is described as Filipina (marriage contract dated 29 November 1936) there is sufficient evidence to establish that Santiago Gatchalian is really Filipino at birth, being the legitimate child of a Filipino woman.

WHEREFORE, the herein petition to cancel his alien registration is granted, petitioner shall henceforth be shown in the records of this office as a citizen of the Philippines and the issuance to him of the appropriate Identification certificate showing his correct status is hereby authorized. (Order of 12 July 1960, Annex "1" of Comment with Counter-Petition).

As to his alleged marriage to Chu Gim Tee, and their five children, we only have his self-selling oral testimony, thus:

Q What is the name of your wife?

A Her name is Chu Gim Tee.

Q Is she still alive?

A No, she died in 1951, in Amoy.

Q Do you have children with her, if so, mention their names, ages and sexes? A Yes. I have five children, all of them alive and they are as follows:

Jose Gatchalian, born on Jan. 2, 1927 in Amoy; Gloria Gatchalian, born February 20, 1929 in Amoy; Francisco Gatchalian, born on March 3, 1931 in Amoy; Elena Gatchalian, born on April 4, 1933 in Amoy; Benjamin Gatchalian, born on 31 March 1942 in Amoy.

Q Where are they living now?

A All of them are now living in Macao, with my sister-in-law by the name of Chu Lam Tee. (p. 4, Transcript of the proceedings before the Citizen Evaluation Board on 12 February 1960, Annex "2" of Comment with Counter-Petition).

If indeed Santiago's parents, Pablo Pacheco and Marciana Gatchalian, were married, what was his reason for insisting, through his brother Joaquin, that he, is an illegitimate son? The only possible reason is that Pablo Pacheco is a Chinese citizen, in which case Santiago would follow the citizenship of Marciana, a "filipina." But to give full faith and credit to the oral insistence of illegitimacy is to do violence to the presumptions of validity of marriage, the indissolubility of the marriage bonds and the legitimacy of children. (Art. 220, Civil Code). These are among the presumptions which the ponencia precisely applied when it rejected the petitioners' claim that Santiago failed to establish his claimed marriage to Chu Gim Tee and Francisco's (father of William) claimed marriage to Ong Chiu Kiok, both of which were allegedly celebrated abroad. I cannot find any valid justification why these presumptions should be liberally applied in favor of claimed marriages allegedly celebrated abroad but denied to purported marriages celebrated in the Philippines.

Interestingly, Santiago used the surname Pacheco during such proceedings and when he testified, he gave his name as Santiago Gatchalian Pacheco. This is an incontrovertible proof that he recognized the legitimate union of his father and mother.

On 18 February 1960, Santiago was recalled to be confronted re his claim as to the number of his children; he testified thus:

Q In your testimony on February 12, this year, you named as your children the following: Jose, Gloria, Francisco, Elena and Benjamin, all born in Amoy, arranged according to the order of their ages. However, in your Form 1 when you secured your ACR in 1951, you mentioned only Jose Gatchalian and Elena Gatchalian. Why, what is the reason why in this form that you filled up in 1951, you mentioned only Jose and Elena?

A That form I am not the one who filled it because that is not my handwriting. It is the handwriting of my broker or the clerk of my broker. However, when they prepared that I mentioned my children named Jose, Gloria, Francisco, Elena in a piece of paper which I gave to him, except Benjamin. Q Why did you not mention Benjamin in the list?

A Because he was not yet baptized then. (Transcript, p. 7, Annex "2" of Comment with Counter-Petition).

The explanation is very flimsy and does not deserve the respect of a passing glance.

There is no showing that Gatchalian took any immediate definite positive step against the 6 July 1962 decision and the warrant of exclusion.

It was only sometime in 1973, or eleven years after, that he and others covered by the warrant of expulsion filed a motion for re-hearing with the Board of Special Inquiry. There has been no explanation for the unreasonable delay in the filing of the motion. It may be surmised that it was due to his minority, considering that he was allegedly only twelve years old when he arrived in Manila from Hongkong on 27 June 1961. But, such minority was no obstacle to the filing of any remedial action for and in his behalf.

The action taken by and the recommendation of the Board of Special Inquiry of 14 March 1973 to the then Acting Commissioner Victor Nituda for the reversal of the July 6, 1962 decision of the Board of Commissioners were not only highly anomalous, irregular and improper, it was done without any semblance of authority. The Board of Special Inquiry did not have the power to review, modify or reverse a Decision of the Board of Commissioners rendered about eleven years earlier. Then Acting Commissioner Victor Nituda, acting alone, did not likewise have the power or authority to approve the recommendation of said Board, to revive and/or reaffirm the July 6, 1961 decision of the Board of Special Inquiry, to reverse, and nullify, the Decision of 6 July 1962 of the Board of Commissioners, and to order the admission of William Gatchalian as a Filipino citizen. Pursuant to Sec. 26 (b) of C.A. No. 613, as amended (The Philippine Immigration Act of 1940), only the Board of Commissioners can act on the recommendation, if at all it was legally and validly done. The Board of Commissioners is composed of the Commissioner of Immigration and the two Deputy Commissioners. In the absence of any member of the Board, the Department Head shall designate an officer or employee in the Bureau of Immigration to serve as member thereof. In any case coming before it, the decision of any two members shall prevail. (Sec. 8, C.A. No. 613 as amended). The Department Head referred to is the Secretary of Justice since the Commission is, for administrative purposes, under the supervision and control of the Department of Justice.

The decision then of Acting Commissioner Nituda was void and invalid ab initio. In view thereof, the rationalization in the ponencia that the issue could be re-opened since the decision of the Board of Commissioners of 6 July 1962 did not constitute res judicata is irrelevant. But even if it is to be conceded that the 6 July 1962 decision did not constitute res judicata, I find it both strange and illogical to give full faith and credit to the unilateral action of Mr. Nituda and to use it to bar the Boards from exercising its power and jurisdiction over William Gatchalian.

Assuming that indeed William is the grandson of Santiago, I find it rather strange why Santiago did not mention him in his testimony before the Citizenship Evaluation Board. At that time William was already eleven years old. It is logical to presume that the proceeding initiated by Santiago was principally for the benefit of his alleged children and grandchildren. It was, as subsequent events proved, intended to prepare the legal basis for their entry into the country as Filipino citizens. Thus, eleven months after he obtained a favorable decision from the Board, and on two successive dates, his alleged children and grandchildren entered the country. On 25 June 1961 his alleged children Jose, Elena, Benjamin, and his alleged grandchildren Pedro and Juan arrived from Hongkong. On 27 June 1961, his alleged daughter Gloria and son Francisco with his alleged children William and Johnson also arrived from Hongkong. (pp. 4-5, Petition).

That he has continuously resided in the Philippines since 1961; he is married to Ting Dee Hua on July 1, 1973, and his marriage contract shows that he is a Filipino citizen; he holds passports and earlier passports as a Filipino; he is a registered voter of Valenzuela, Metro Manila where he has long resided and exercised his right of suffrage; he is engaged in business in the Philippines since 1973, and is a director/officer of the International Polymer Corp. and Ropeman International Corp. as a Filipino, and that the companies he runs and in which he has a controlling investment provided a livelihood to 4,000 employees and approximately 25,000 dependents; he is a taxpayer; and he has continuously enjoyed the status of Filipino citizenship, discharged his responsibility as such until petitioning Boards initiated the deportation proceedings against him, are not of any help to William Gatchalian. For, they neither confer nor strengthen his claim of Filipino citizenship since they are all rooted on the illegal and void decision of then Acting Commissioner Victor Nituda of 15 March 1973. A decision which is void and invalid ab initio cannot be a source of valid acts. Neither can such substantive infirmity be cured by salutary acts that tend to confirm the status conferred by the void decision.

In the light of the foregoing, it follows that the warrant of exclusion issued against William Gatchalian pursuant to and by virtue of the 6 July 1962 Decision of the Board of Commissioners subsists and remains valid and enforceable.

I disagree with the view advanced in the ponencia that the State can no longer enforce the warrant of exclusion because it is already barred by prescription considering that Section 37 (b) of the Immigration Act states that deportation "shall not be effected . . . unless the arrest in the deportation proceedings is made within five (5) years after the cause of deportation arises."

Said paragraph (b) of Section 37 reads in full as follows: (b) Deportation may be effected under clauses 2, 7, 8, 11 and 12 paragraph (a) of this section at any time after entry, but shall not be effected under any other clause unless the arrest in the deportation proceedings is made within five years after the cause of deportation arises. Deportation under clauses 3 and 4 shall not be effected if the court or judge thereof, when sentencing the alien, shall recommend to the Commissioner of Immigration that the alien be not deported. (As amended by Sec. 13, R.A. No. 503). (Emphasis supplied).

Note that the five-year period applies only to clauses other than 2, 7, 8, 11 and 12 of paragraph (a) of the Section. In respect to clauses 2, 7, 8, 11 and 12, the limitation does not apply. These clauses read as follows:

(2) Any alien who enters the Philippines after the effective date of this Act, who was not lawfully admissible at the time of entry; xxx xxx xxx

(7) Any alien who remains in the Philippines in violation of any limitation or condition under which he was admitted as a non- immigrant;

(8) Any alien who believes in, advises, advocates or teaches the overthrow by force and violence of the Government of the Philippines, or of constituted law and authority, or who disbelieves in or is opposed to organized government, or who advises, advocates, or teaches the assault or assassination of public officials because of their office, or who advises, advocates, or teaches the unlawful destruction of property, or who is a member of or affiliated with any organization entertaining, advocating or teaching such doctrines, or who in any manner whatsoever lends assistance, financial or otherwise, to the dissemination of such doctrines; xxx xxx xxx

(11) Any alien who engages in profiteering, hoarding, or black-marketing, independent of any criminal action which may be brought against him;

(12) Any alien who is convicted of any offense penalized under Commonwealth Act Numbered Four Hundred and Seventy-Three, otherwise known as the Revised Naturalization Laws of the Philippines, or any law relating to acquisition of Philippine citizenship; xxx xxx xxx

Mr. Gatchalian is covered by clause (2); besides, the warrant for his exclusion was issued within a period of five years following his entry.

Lam Shee vs. Bengzon (93 Phil. 1065) is not applicable to Mr. Gatchalian. In issue in that case was the deportation of a minor whose mother fraudulently entered the Philippines by using the name of a resident Chinese merchant who is not her lawful husband but against whom no deportation proceedings was initiated within five years following her entry. Said mother did in fact acquire permanent residence status. Furthermore, the minor's mother never claimed to be a Filipino citizen.

IN VIEW OF ALL THE FOREGOING, I vote to GRANT the petition in G.R. Nos. 95122- 23, SET ASIDE the questioned orders of respondents Judge Joselito Dela Rosa and Judge Teresita Dizon Capulong as having been issued beyond their jurisdiction, ORDER the DISMISSAL of Civil Case Nos. 90-54214 of the Regional Trial Court of Manila and 3431-V-90 of the Regional Trial Court of Valenzuela, Metro Manila and to DISMISS for lack of merit the COUNTER-PETITION.

FELICIANO, J., dissenting:

I regret I am unable to join the opinion written by my distinguished brother in the Court, Mr. Justice A.A. Bidin, and I, therefore, undertake to submit this separate opinion.

For convenience, the following is a precis of the matters discussed in detail below.

1. I agree that the Warrant of Arrest dated 14 August 1990 is defective in its language. The surrounding facts, however, make quite clear that an amended warrant of arrest or mission order, or a new one correctly worded, may be issued by Immigration Commissioner Domingo for the purpose of carrying out an existing and valid Warrant of Exclusion covering respondent William Gatchalian and his co- applicants for admission.

2. The 6 July 1962 Decision of the Board of Commissioners ("BOC") and Warrant of Exclusion remain valid and effective and enforceable against respondent William Gatchalian, and his co-applicants for that matter. That Decision reversed a 6 July 1961 decision of the Board of Special Inquiry ("BSI") and held that respondent William Gatchalian and his co-applicants failed to subtantiate and prove their claim to Philippine citizenship in 1961. Respondent William Gatchalian does not claim Philippine citizenship by any mode of entitlement subsequent to his application for entry as a citizen of the Philippines in 1961, i.e., by any act or circumstance subsequent to his birth and supposed filiation as a legitimate son of Francisco Gatchalian, also a supposed citizen of the Philippines.

4. Should this Court now determine to examine once more the claim to Philippine citizenship of respondent William Gatchalian, a detailed examination of the facts, including the supposed status of Santiago Gatchalian as a natural born Philippine citizenship, shows that those claims to Philippine citizenship were indeed not proven by respondent William Gatchalian and his co-applicants. Since respondent William Gatchalian does not claim to have been naturalized as a Philippine citizen after rendition of the 6 July 1962 BOC Decision, he must accordingly be held to be not a Philippine citizen.

5. Should the legal results thus reached seem harsh to some, I respectfully submit that the remedy lies not with this Court which is charged with the application of the law as it is in fact written, but with the political branches of the Government. It is those departments of Government which must consider the desirability and wisdom of enacting legislation providing for the legalization of the entry and stay of aliens who may be in the same situation as respondent William Gatchalian and his co- applicants.

1. Petitioner argues that respondent William Gatchalian's arrest follows as a matter of "consequence" of the Warrant of Exclusion issued by the BOC on 6 July 1962. This is opposed by respondent Gatchalian upon the ground that the Mission Order or Warrant of Arrest does not mention that it is issued pursuant to a final order of deportation or Warrant of Exclusion.

The Mission Order or Warrant of Arrest dated 14 August 1990 issued by petitioner Commissioner Domingo, CID, reads in part as follows:

Intelligence Officers/Agents: All Teams

Team No.

Subject: William, Juan, Francisco, Jose, Benjamin, Jonathan, Pedro, Gloria, Elena, all surnamed Gatchalian

Address: Bgy. Canumay, Valenzuela, M.M. xxx xxx xxx 1. Make a warrantless arrest under the Rules of Criminal Procedure, Rule 113, Section 5, for violation of the Immigration Act, Section 37, para. a; Secs. 45 and 46 Administrative Code;

2. Make a warrantless search as an incident to a lawful arrest under Rule 125, Section 12.

3. Deliver the suspect to the Intelligence Division and immediately conduct custodial interrogation, after warning the suspect that he has a right to remain silent and a right to counsel;

4. Prepare and file an affidavit of arrest with the Special Prosecutor's Office and, in case of a search, prepare and file an inventory of the properties seized, verified under oath following Office Memorandum Order No. 45 xxx xxx xxx

The above Mission Order merely referred to Section 37 (a) of the Immigration Act, as amended, and to Sections 45 and 46 of the Administrative Code (should be Immigration Law), and that its wording suggests that the arrest is sought to be carried out for the purpose of carrying out a preliminary investigation or custodial interrogation rather than for the purpose of enforcing a final order of deportation or warrant of exclusion. More specifically, the Mission Order failed to mention the 6 July 1962 BOC Decision and Warrant of Exclusion. At the same time, there is no gainsaying the fact that the 6 July 1962 BOC Decision and Warrant of Exclusion do exist and became final and, as discussed in detail below, remain valid and effective.

It should be noted also that by 6 September 1990, Special Prosecutor Mabolo had filed a Manifestation or Motion before the Bureau of Immigration explicitly referring to the Warrant of Exclusion issued against respondent William Gatchalian and his original co-applicants for admission in 1961, which had been passed upon in Arocha vs. Vivo(supra), and argued that there was, therefore, no longer any need to adduce evidence in support of the charges against respondent William Gatchalian.

Thus it appears to me that the Warrant of Arrest or Mission Order dated 15 August 1990, ineptly worded as it is, may be amended so as to refer explicitly to the mentioned Warrant of Exclusion, or a new warrant of arrest or mission order issued similarly explicitly referring to the Warrant of Exclusion.

2. It is indispensably necessary to refer to the Warrant of Exclusion of 6 July 1962 which read as follows:

WHEREAS, upon review, motu proprio of the proceedings had on the application for admission as Philippine citizens of JOSE GATCHALIAN, ELENA GATCHALIAN, BENJAMIN GATCHALIAN, JUAN GATCHALIAN, PEDRO GATCHALIAN, GLORIA GATCHALIAN, FRANCISCO GATCHALIAN,WILLIAM GATCHALIAN, and JOHNSON GATCHALIAN, the Board of Commissioners found them not entitled to admission as Filipinos in a Decision, dated July 6, 1962, and ordered their exclusion aspersons not properly documented;

AND WHEREAS, the Decision of the Board of Commissioners, dated 6 July 1962, ordering the exclusion of above-named applicants, has now become final and executory.

NOW THEREFORE, by virtue of the authority vested in the undersigned by law, you are hereby ordered to exclude the aforenamed individuals and cause their removal from this country to the port where they came or to the port of the country of which they are nationals, on the first available transportation, in accordance with law. (Emphasis supplied)

It should be noted that respondent William Gatchalian was a party to the 1961-1962 proceedings before the Bureau of Immigration which proceedings culminated in the 6 July 1962 Decision of the BOC and the aforequoted Warrant of Exclusion.

It is, however, insisted by respondent William Gatchalian that the Warrant of Exclusion may no longer be executed or implemented as against him in view of the passage of approximately twenty-eight (28) years since the issuance of such Warrant. Respondent Gatchalian here relies upon Section 37 (b) of the Immigration Act which states that:

Sec. 37 (b). Deportation may be effected under clauses 2, 3, 7, 8, 11 and 12 of the Par. (a) of this Section at any time after entry, but shall not be effected under any other clauses unless the arrest in the deportation proceedings is made within five (5) years after the cause for deportation arises . . . (Emphasis supplied)

Examination of the above quoted Section 37 (b) shows that the five (5) year- limitation is applicable only where deportation is sought to be effected under clauses of Section 37 (a) other than clauses 2, 7, 8, 11 and 12; that where deportation or exclusion is sought to be effected under clauses 2, 7, 8 11 and 12 of Section 37 (a), noperiod of limitation is applicable; and that, to the contrary, deportation or exclusion may be effected "at any time after entry."

Examination of contemporaneous facts shows that the Government has sought to effect the exclusion and deportation of respondent William Gatchalian upon the ground that he had entered the country as a citizen of the Philippines when he was not lawfully admissible as such at the time of entry under Section 37 (a) (2), since the BOC had held him and the other Gatchalians there involved as not properly documented for admission, underSection 29 (a) (17) of the Immigration Act, as amended. On 7 July 1990, the Acting Director of the National Bureau of Investigation ("NBI") initiated the proceedings immediately before us by writing to the Secretary of Justice recommending that respondent William Gatchalian, and his co-applicants covered by the Warrant of Exclusion dated 6 July 1962, be charged with: "Violation of Section 37 (a), paragraphs 1 and 2, in relation to Section 45 (c), (d) and (e) of Commonwealth Act 613 as amended, also known as the Immigration Act of 1940." The Secretary of Justice endorsed this recommendation to Immigration Commissioner Domingo for investigation and immediate action. On 20 August 1990, Special Prosecutor Mabolo filed a charge sheet against respondent William Gatchalian which specified the following charges:

The respondent is an alien national who unlawfully gained entry into the Philippines without valid travel document in violation of the Immigration Act; Sec. 37 par. a, sub pars. (1) and (2);

That respondent being an alien misrepresented himself as Philippine Citizen by false statements and fraudulent documents in violation of the Immigration Act, Sec. 45, par. (c), (d) and (e).

That respondent being an alien national is an undocumented person classified as excludable under the Immigration Act, Sec. 29 (a) sub par. (17). xxx xxx xxx

(Emphasis supplied)

Section 37 (a) (1) and (2), of Commonwealth Act No. 613, as amended, provides as follows:

Sec. 37 (a). The following aliens shall be arrested upon the warrant of the Commissioner of Immigration or of any other officer designated by him for the purpose and deported upon the warrant of the Commissioner of Immigration after a determination by the Board of Commissioners of the existence of the ground for deportation as charged against the alien.

(1) Any alien who enters the Philippines after the effective date of this act by means of false and misleading statements or without inspection and admission by the Immigration authorities at a designated port of entry or at any place other than at a designated port of entry; (As amended by Republic Act No. 503).

(2) An alien who enters the Philippines after the effective date of this act, who was not lawfully admissible at the time of entry. xxx xxx xxx

(Emphasis supplied)

Section 37 (a) (2), quoted above, relates back to Section 29 (a) of the Immigration Act, as amended, which lists the classes of alien excluded from entry in the Philippines, as follows:

Sec. 29. (a). The following classes of aliens shall be excluded from entry into the Philippines; xxx xxx xxx

(17) Persons not properly documented for admission as may be required under the provisions of this act. (Emphasis supplied)

Thus, in the instant case, the net result is that no time limitation is applicable in respect of the carrying out of the Warrant of Exclusion issued in 1962.

A little reflection suffices to show why this must be so. What was involved in 1961 when the supposed children and grandchildren of Santiago Gatchalian first descended upon the Philippines, was the right of a person claiming to be a Philippine citizen to enter for the first time and reside in the Philippines. On the part of the Government, what was at stake was the right to exclude from the country persons who had claimed the right to enter the country as Philippine citizens but who had failed to substantiate such claimed status. Aliens seeking entry into the Philippines do not acquire the right to be admitted into the country by the simple passage of time. Exclusion of persons found not to be entitled to admission as Philippine citizens, must be distinguished from the deportation of aliens, who, after having been initially lawfully admitted into the Philippines, committed acts which rendered them liable to deportation.

Normally, aliens excluded are immediately sent back to their country of origin. 2 This is so in cases where the alien has not yet gained a foothold into the country and is still seeking physical admittance. However, when the alien had already physically gained entry but such entry is later found unlawful or devoid of legal basis, the alien can be excluded any time after it is found that he was not lawfully admissible at the time of his entry. Technically, the alien in this case is beingexcluded; however, the rules on deportation can be made to apply to him in view of the fact that the cause for his exclusion is discovered only after he had gained physical entry.

It is worth noting at this point that in Arocha vs. Vivo (supra), this Court upheld the 6 July 1962 Order of the BOC and the application of the Warrant of Exclusion, in respect of Pedro Gatchalian, even though more than five (5) years had elapsed by the time the Court's Decision was promulgated on 26 October 1967.

Though respondent William Gatchalian is physically inside the country, it is the government's basic position that he was never lawfully admitted into the country, having failed to prove his claim of Philippine citizenship, and hence the Warrant of Exclusion of 6 July 1962, or a new Warrant of Exclusion for that matter, may be executed "at any time" under Section 37 (b). It is the correctness of that basic position which must be ascertained and in that ascertainment, the mere passage of time is quite peripheral in relevance considering the express language of Section 37 (b).

My distinguished brother, Bidin, J., finally invokes Act No. 3326, and on the basis of Section 1 thereof, would hold that where the arrest for purpose of deportation is made more than five (5) years after the cause for deportation arose, the prescriptive period of eight (8) years should be applied. Act No. 3326 which took effect on 4 December 1926, establishes prescriptive periods in respect of criminal prosecutions for violations penalized not by the Revised Penal Code but rather by special acts which do not otherwise establish a period of prescription. In other words, Act No. 3326 establishes a statute of limitations for the institution of criminal proceedings. It is, however, quite settled that deportation proceedings cannot be assimilated to criminal prosecutions for violation either of the Revised Penal Code or of special statutes. 3 Moreover, Act No. 3326 purports to be applicable only where the special act itself has not established an applicable statute of limitations for criminal proceedings. It cannot, however, be said that Article 37 (b) of the Immigration Act (quoted earlier) has not established an applicable statute of limitations. For, precisely, Section 37 (b) of the Immigration Act states that deportation may be effected under certain clauses of Section 37 (a) "at any time after entry." One of those instances is, precisely, deportation upon the ground specified in Clause (2) of 37 (a) which relates to "any alien who enters the Philippines after the effective date of this act, who was not lawfully admissible at the time of entry." Thus, the Immigration Act, far from failing to specify a prescriptive period for deportation under Section 37 (a) (2), expressly authorizes deportation under such ground "at any time after entry." It is, thus, very difficult to see how Act No. 3326 could apply at all to the instant case.

Finally, we must recall once more that what is actually involved in the case at bar is exclusion, not deportation.

3. It is urged by the government that Arocha vs. Vivo (supra) has already resolved the claim to Philippine citizenship of respondent William Gatchalian adversely to him and that such ruling constitutes res judicata. Upon the other hand, respondent William Gatchalian vehemently argues that neither the 6 July 1962 BOC's Decision nor Arocha definitely settled the question of his citizenship.

My respectful submission is that respondent William Gatchalian's argument constitutes a highly selective reading of both the BOC Decision and the Decision in Arocha Written by J.B.L. Reyes, J. for a unanimous court. The 6 July 1962 Decision of the BOC, in its dispositive portion, reads as follows:

IN VIEW OF THE FOREGOING CONSIDERATIONS, this Board finds and hereby holds that the applicants [Jose Gatchalian, Elena Gatchalian, Benjamin Gatchalian, Juan Gatchalian, Pedro Gatchalian, Gloria Gatchalian, Francisco Gatchalian, William Gatchalian and Johnson Gatchalian] herein have not satisfactorily proved their claim to Philippine citizenship and therefore the Decision of the Board of Special Inquiry, dated July 6, 1961 admitting them as Filipinos is hereby reversed, andsaid applicants should be, as they are hereby ordered excluded as persons not properly documented. SO ORDERED. (Emphasis supplied)

Since respondent William Gatchalian and his co-applicants in 1961 claimed the right to enter the country as Philippine citizens, determination of their right to enter the Philippines thus indispensably involved the resolution of their claim to Philippine citizenship. In other words, the determination of that citizenship in the instant case was not a mere incident of the case; it was rather the central and indeed the only issue that had to be resolved by the BOC. Review of the 1961 proceedings before the BSI shows that the sole issue before it was the supposed Philippine citizenship of the applicants. Thus, the very same issue of claimed Philippine citizenship was resolved by the BOC when it reversed the 6 July 1961 decision of the BSI. This case may be distinguished from other types of cases, e.g., applications for public utility franchises, petitions for change of name, applications for registration as voter, filing of certificates of candidacy for an elective position, etc., where the central issue is not citizenship although resolution of that issue requires a determination of the citizenship of the applicant, candidate or petitioner.

The ruling of the BOC that respondent William Gatchalian and his co-applicants for admission as Philippine citizens had not satisfactorily proved their claim to Philippine citizenship, can only be reasonably read as a holding that respondent William Gatchalian and his co-applicants were not Philippine citizens, whatever their true nationality or nationalities might be. Thus, it appears to be merely semantic play to argue, as respondent William Gatchalian argues, that the 1962 BOC Decision did not categorically hold him to be an "alien" and that the BOC had merely held him and his co-applicants as "not properly documented." The phrase "not properly documented" was strictly and technically correct. For William Gatchalian and his co- applicants had presented themselves as Philippine citizens and as such entitled to admission into the country. Since the BOC rejected their claims to Philippine citizenship, William Gatchalian and his co-applicants were non-Filipinos "not properly documented for admission" under Section 29 (a) (17), Immigration Act as amended.

4. In Arocha vs. Vivo (supra), the Supreme Court had before it the following items:

1. The 6 July 1961 Decision of the BSI which allowed the entry of respondent Gatchalian and his co-applicants as citizens of the Philippines;

2. A split BOC Decision approving the 6 July 1961 BSI decision, which had been "noted" by two (2) Commissioners but rejected by Commissioner Galang on 14 and 26 July 1961 and 21 August 1961, respectively;

3. The 6 July 1962 Decision of the BOC in which the BOC had reviewed motu proprio the Gatchalian proceedings before the BSI and reversed the BSI decision of 6 July 1961;

4. The Warrant of Exclusion dated 6 July 1962 issued pursuant to the 6 July 1962 Decision of the BOC; and 5. A decision of the Manila Court of First Instance dated 31 July 1965, rendered in a habeas corpusproceeding brought to effect the release of Pedro Gatchalian who had been taken into custody by immigration officials pursuant to the 6 July 1962 Warrant of Exclusion.

The Court of First Instance ("CFI") decision ordered Pedro Gatchalian's release upon the ground that the 6 July 1962 BOC Decision had been issued beyond the one (1) year period for review of the BSI decision of 6 July 1961. The CFI decision was reversed and nullified by the Supreme Court.

The Supreme Court held that the BOC Decision of 6 July 1962 had not been antedated and that it was valid and effective to reverse and nullify the BSI order granting admission to the Gatchalians as citizens of the Philippines.

The Court also held that the split BOC decision of July-August 1961 did not operate to confirm and render final the BSI decision of 6 July 1961, the split decision being null and void because it had not been rendered by the BOC as a body.

The Court further rejected Pedro Gatchalian's argument that he was not bound by the 6 July 1962 BOC Decision:

It is argued for the appellee that the minutes in Exh. 5-A refer only to the cases of Gloria, Francisco and Benjamin Gatchalian. But the designation of the case is "Gloria Gatchalian, et al." No reason is shown why the case of these three should be considered and voted upon separately, considering that the claims to citizenship and entry of all were based on the same circumstances, applicants being the descendants of one Santiago Gatchalian, a Filipino and that all their applications for entry were in fact jointly resolved by the Board of Inquiry in one single decision (Annex 1, petition, G.R. No. L-24844). 4

I respectfully submit that the above-quoted ruling in Arocha disposes of the contention here being made by respondent William Gatchalian that he is not bound by the Decision in Arocha vs. Vivo, Arocha held that the 1962 BOC Decision was valid and effective and William was certainly one of the applicants for admission in the proceedings which began in 1961 before the BSI.

Respondent William Gatchalian contends that the Court in Arocha did not find him nor any of his co-applicants to be aliens and that all the Court did was to hold that the 6 July 1962 Board of Commissioners decision had not been antedated. This contention cannot be taken seriously. As has already been pointed out several times, the 1962 Board of Commissioners decision held that William Gatchalian and his eight (8) other co-applicants for admission had not proved their claim to Philippine citizenship; not being Filipinos, they must have been aliens, to be excluded as persons not properly documented. Moreover, a review of the Rollo in Arocha vs. Vivo shows that the parties there had expressly raised the issue of the citizenship of Pedro Gatchalian in their pleadings. The Solicitor General, in his fifth assignment of error, argued that the Court of First Instance had erred in declaring Pedro Gatchalian a Filipino, and simultaneously urged that the 6 July 1962 decision of the Board of Commissioners was quite correct. Pedro Gatchalian, upon the other hand, contended that precisely because he was a Filipino, the Bureau of Immigration had no jurisdiction to exclude him. 5

The Court also said in Arocha:

Finally, it is well to note that appellee did not traverse the allegation of appellant Commissioners in their return to the writ of Habeas Corpus that appellee Pedro Gatchalian gained entry on the strength of a forged cablegram, purportedly signed by the former Secretary of Foreign Affairs Felixberto Serrano, and apparently authorizing appellee's documentation as a Filipino (par. 3[a] of Return, C.F.I. Rec., pp. 15-16). Such failure to deny imports admission of its truth by the appellee, establishes that his entry was irregular. Neither has he appealed the decision of the Commissioners of Immigration to the Department Head. 6

Since the physical entry of Pedro Gatchalian was effected simultaneously with that of Francisco and William Gatchalian, on exactly the same basis and on the strength of the same forged cablegram allegedly from then Secretary of Foreign Affairs Felixberto Serrano, it must follow that the entry of Francisco and William Gatchalian was similarly irregular. The applications for admission of the nine (9) Gatchalians were all jointly resolved by the BSI on 6 July 1961 on the identical basis that they were all descendants of Santiago Gatchalian, a supposed natural born Philippine citizen.

5. The purported reversal of the 1962 BOC Decision by Commissioner Nituda in 1973, cannot be given any effect. A close examination of the same reveals that such purported reversal was highly irregular.

Respondent William Gatchalian alleges that Mr. Nituda, being in 1973 Acting Commissioner of Immigration, had the authority to reverse the BOC Decision of 6 July 1962, since he (Nituda) had immediate control, direction and supervision of all officers, clerks and employees of the Bureau of Immigration. Control means, respondent Gatchalian continues, the power to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. 7

Respondent Gatchalian's view is obviously flawed. The Commissioner's power of control over the officers and employees of the Bureau of Immigration cannot be compared to the power of control and supervision vested by the Constitution in the President of the Philippines (which was what Ham was all about), for the Commissioner's general power of control cannot be said to include the power to review and set aside the prior final decision reached by the BOC. The Commissioner of Immigration, acting alone, cannot be regarded as an authority higher than the BOC itself (constituted by the Commissioner and the two [2] Associate Commissioners), in respect of matters vested by the governing statute in such Board itself. One of these matters is precisely the hearing and deciding of appeals from decisions of the BSI, and the motu proprio review of the entire proceedings of a case within one (1) year from the promulgation of a decision by the BSI. 8

Respondent Gatchalian points to Section 29 (b) of the Immigration Act as amended, as empowering Nituda to reverse the 1962 BOC Decision. Section 29 (b) reads as follows:

Section 29. . . . xxx xxx xxx

(b) Notwithstanding the provisions of this section, the Commissioner of Immigration, in his discretion, may permit to enter (sic) any alien properly documented, who is subject to exclusion under this section, but who is —

(1) an alien lawfully resident in the Philippines who is returning from a temporary visit abroad;

(2) an alien applying for temporary admission.

It is difficult to understand respondent's argument. For one thing, Section 29 (b) relates to an "alien properly documented" while respondent Gatchalian precisely claims to be a citizen of the Philippines rather than a resident alien returning from a temporary visit abroad or an alien applying for temporary admission.

It should be recalled that Nituda's 1973 Decision approved a ruling rendered by a Board of Special Inquiry in 1973 that respondent Gatchalian was properly documented, a ruling which was precipitated by a "Petition for Rehearing" filed by respondent Gatchalian and his co-applicants in 8 March 1972 before the BSI. There are a number of obvious defects in the action of the BSI. Firstly, the motion for rehearing was filed way out of time. Rule 3, B 22 of the Immigration Rules and Regulations of 1 January 1941 provides as follows:

At any time before the alien is deported, but not later than seven days from the date he receives notice of the decision on appeal of the Board of Commissioners, the applicant or his attorney or counsel may file a petition for rehearing only on the ground of newly discovered evidence. Such petition shall be in writing and shall set forth the nature of the evidence discovered and the reason or reasons why it was not produced before. . . . (Emphasis supplied)

Respondent Gatchalian's and his co-applicants' motion for rehearing was filed, not seven (7) days but rather ten (10) years after notice of the 1962 BOC Decision had been received by them. Secondly, Rule 3, B 25 of the Immigration Rules and Regulations prescribed that any motion for rehearing shall be filed only with the Board of Commissioners; the Gatchalians' motion for rehearing was filed with the BSI which then purported to reopen the case "without first securing the consent in writing of the Commissioner of Immigration" as required by Rule 2, D 20.

Furthermore, the purported reversal of the 1962 BOC Decision was made not by the duly constituted BOC in 1973, but only by its Chairman, then Acting Commissioner Nituda. Mr. Nituda's action flew in the face of Rule 3, B 22 of the Immigration Rules and Regulation, which mandates that the decision of any two (2) members of the BOC shall prevail. It thus appears that Mr. Nituda purported to act as if he were the entire BOC. Indeed, even the BOC itself in 1973 could not have lawfully reversed a final decision rendered by the BOC ten (10) years ago. 9

We must, finally, not lose sight of the ruling in Arocha vs. Vivo (supra) where the Supreme Court expressly outlined the procedure to be followed by the BOC in resolving cases before them. This court was very explicit in holding that individual actions of members of the BOC are legally ineffective:

. . . [T]he former Immigration Commissioners appeared to have acted individually in this particular instance and not as a Board. It is shown by the different dates affixed to their signatures that they did not actually meet to discuss and vote on the case. This was officially made to record by the Secretary of Justice in his Memorandum Order No. 9, on January 24, 1962, wherein he stated. that for the past several years, the Board of Commissioners of Immigration has not met collectively to discuss and deliberate in the cases coming before it. [Citation omitted]

Individual action by members of a board plainly renders nugatory the purpose of its constitution as a Board. The Legislature organized the Board of Commissioners precisely in order that they should deliberate collectively and in order that their views and Ideas should be exchanged and examined before reaching a conclusion (See Ryan vs. Humphrise, LRA 1915F 1047). This process is of the essence of a board's action, save where otherwise provided by law, and the salutary effects of the rule would be lost were the members to act individually, without benefit of discussion.

The powers and duties of boards and commissions may not be exercised by the individual members separately. Their acts are official only when done by the members convened in sessions, upon a concurrence of at least a majority and with at least aquorum present. [Citation omitted]

Where the action needed is not of the individuals composing a board but of the official body, the members must be together and act in their official capacity, and the action should appear on the records of the board. [Citation omitted] Where a duty is entrusted to a board, composed of different individuals, that board can act officially only as such, in convened sessions, with the members, or a quorum thereof, present. [Citation omitted] 10 (Emphasis supplied)

The act of Mr. Nituda of reversing the 1962 Decision of the BOC could not hence be considered as the act of the BOC itself.

The pretended act of reversal 0of Mr. Nituda must, therefore, be stricken down and disregarded for having been made in excess of his lawful authority. The 1973 order of Nituda was ineffective to vest any right upon respondent Gatchalian who, it is worth nothing, did not pretend to submit any newly discovered evidence to support their claim to Philippine citizenship already rejected by the 1962 BOC. In essence, Mr. Nituda purported not merely to set aside the 1962 BOC Decision but also the 1967 Decision of this Court in Arocha vs. Vivo.

I turn to an examination of the underlying facts which make up the basis of the claim of William Gatchalian to Philippine citizenship. The most striking feature of this claim to Philippine citizenship is that it rests upon a fragile web constructed out of self-serving oral testimony, a total lack of official documentation whether Philippine or foreign, of negative facts and of invocation of presumptions without proof of essential factual premises. Put in summary terms, the claim of William Gatchalian to Philippine citizenship rests upon three (3) premises, to wit: a. that Santiago Gatchalian was a Philippine citizen; b. the supposed filiation of Francisco Gatchalian as a legitimate son of Santiago Gatchalian, which leads to the intermediate conclusion that Francisco was a Philippine citizen; and c. the supposed filiation of William Gatchalian as a legitimate son of Francisco Gatchalian leading to the final conclusion that William Gatchalian is a Philippine citizen.

I respectfully submit that a careful examination of the facts made of record will show that the correctness and factual nature of each of these layered premises are open to very serious doubt, doubts which can only lead to the same conclusion which the BOC reached on 6 July 1962 when it reversed the BSI, that is, that there was failure to prove the Philippine citizenship of William Gatchalian and of his eight (8) alleged uncles, aunts and brother in 1961 when they first arrived in the Philippines.

The first point that should be made in respect of Santiago's claim was that he had always regarded himself as a Chinese citizen until around 1958 or 1960, that is, when he reached the age of 53 or 55 years. Santiago, by his own testimony, lived the bulk of his adult life in China where he went in 1924 at age 19 and where he stayed for about 13 years returning to the Philippines for the first time in 1937. He returned in the same year to China, stayed there for another nine (9) years, and then came back to the Philippines again in 1946. He once more left the Philippines for China on 14 April 1947 and returned on 14 June 1947. Upon his second return to the Philippines in 1946, he documented himself as a Chinese national: he was holder of ICR No. 7501 dated 3 May 1946. He continued to be documented as such, the record showing that he was also holder of an ACR No. A-219003 dated 13 January 1951. Santiago, again by his own statement, married in China a Chinese woman. This Chinese wife, however, Santiago never brought or attempted to bring to the Philippines and she allegedly died in China in 1951, or four (4) years after Santiago had permanently returned to the Philippines.

In 1958, when he was 53 years of age, Santiago obtained a residence certificate where for the first time he described himself as a Filipino. It was also only in 1960, that is, when Santiago was 55 years of age, that he filed a petition for cancellation of his ACR obviously upon the theory that he had always been a Philippine citizen. It was at the hearing of his petition for cancellation of his ACR that Santiago made his oral statements concerning the supposed circumstances of his birth, parentage and marriage. Santiago's petition to cancel his ACR was apparently made in preparation for efforts to bring in, the succeeding year, a whole group of persons as his supposed descendants.

The second point that needs to be made in respect of Santiago's claim of citizenship resting on his supposed status as an illegitimate son of a Filipina woman, is that no birth certificate bearing the name of Santiago Gatchalian was ever presented.

Instead, a baptismal certificate bearing the name Santiago Gatchalian was presented showing the name of Marciana Gatchalian, Filipina, as mother, with the name of the father unknown. There was also presented a marriage certificate dated 1936 of Joaquin Pacheco, alleged brother of Santiago Gatchalian, also showing Marciana Gatchalian as mother with the name of the father similarly left blank. These two (2) pieces of paper, together with Santiago's own statements to the Citizenship Evaluation Board as well as the statements of Joaquin Pacheco to the same Board, constituted the sum total of the evidence supporting Santiago's claim to Philippine citizenship and on the basis of which an Order dated 12 July 1960, signed by Felix S. Talabis, Associate Commissioner, granted the petition to cancel Santiago's alien registry.

In so issuing his Order granting cancellation of Santiago's ACR, Commissioner Talabis disregarded Santiago's failure to present a birth certificate, in obvious violation of rules of the Bureau of Immigration which expressly require the submission of a birth certificate, or a certified true copy thereof, in proceedings brought for cancellation of an ACR upon the ground that the petitioner is an illegitimate son of a Filipina mother. 11 It is well-settled that a baptismal certificate is proof only of the administration of baptism to the person named therein, and that such certificate is not proof of anything else and certainly not proof of parentage nor of the status of legitimacy or illegitimacy. 12

That Order also casually disregarded a number of other things, one of which was a document dated 1902 signed by Maxima Gatchalian, the mother of Marciana Gatchalian, stating that Maxima —

. . . residing in the City of Manila, mother of Marciana Gatchalian, unmarried, of 18 years of age, her father being dead, do hereby freely consent to her marriage with Pablo C. Pacheco, of Manila, and that I know of no legal impediment to such marriage. (Emphasis supplied)

Such parental consent indicated that a marriage ceremony would have taken place shortly thereafter as a matter of course; otherwise, the consent would have been totally pointless. Even more importantly, Commissioner Talabis' Order disregarded the testimony of Santiago Gatchalian himself in the same cancellation proceedings that he (Santiago) believed that his parents had been married by the Justice of the Peace of Pasig, Rizal. 13 In his Order, Commissioner Talabis referred to the fact that Santiago Gatchalian had been "interchangeably using his parental and maternal surnames. In school, he was known as Santiago Pacheco (Class Card for 1920-1921, Meisic Manila; Certificates of Completion of Third and Fourth Grades, Meisic Primary School). But in his Special Cedula Certificate No. 676812 dated 17 September 1937, and in tax clearance certificate issued on 2 October 1937, he is referred to as Santiago Gatchalian; and in a Communication dated 6 June 1941, he was addressed to as Santiago Pacheco by the Philippine Charity Sweepstakes Office." At the very least, such use of both paternal and maternal surnames indicated that Santiago was uncertain as to his supposed illegitimacy. In our case law, moreover, the use of a paternal surname may be regarded as an indication of possession of the status of a legitimate or acknowledged natural child. 14

Perhaps the most important aspect of Commissioner Talabis Order granting cancellation of Santiago's ACR, is that such Order failed to give any weight to the presumption in law in favor of marriage, a presumption significantly reinforced by the parental consent given by Maxima Gatchalian to the marriage of her daughter Marciana Gatchalian to one Pablo C. Pacheco. A related presumption is that in favor of the legitimacy of offspring born of a man and woman comporting themselves as husband and wife. 15 I respectfully submit that these presumptions cannot be successfully overthrown by the simple self-serving testimony of Santiago and of his alleged brother Joaquin Pacheco and by the two (2) pieces of paper (the baptismal certificate of Santiago and the marriage certificate of Joaquin Pacheco). It seems relevant to point out that Joaquin Pacheco, too, was unable to present any birth certificate to prove his supposed common parentage with Santiago Gatchalian; Joaquin was allegedly born in 1902, the same year that Maxima Gatchalian gave her consent to the marriage of Marciana Gatchalian and Pablo C. Pacheco.

The third point that needs to be underscored is that Santiago Gatchalian did nothing to try to bring into the Philippines his supposed sons and daughters and grandchildren since 1947, when he returned permanently to the Philippines, and until 1960. The story given by the nine (9) supposed descendants of Santiago when they first arrived in the Philippines was that they had left the People's Republic of China and had gone to Macao in 1952and there they stayed until they moved to Hongkong in 1958. It should also be noted that the youngest supposed child of Santiago, Benjamin Gatchalian, was said to have been born in China in 1942 and was consequently only five (5) years old when Santiago returned permanently to the Philippines in 1947. In other words, Santiago Gatchalian behaved as if the nine (9) supposed descendants did not exist until 1960 when Commissioner Talabis' Order cancelling Santiago's ACR was issued.

It may also be noted that Santiago's 1951 ACR application mentioned only two (2) children of Santiago: Jose and Elena. In 1961, however, Santiago stated before the immigration investigator that he had a total of five (5) children: Jose, Elena, Francisco, Gloria and Benjamin. Santiago's explanation strongly echoes a common lawyer's excuse for failure to seasonably file some pleading, and, it is respectfully submitted, is equally contrived and unpersuasive; that he had his clerk fill up the ACR; that he gave his clerk four (4) names (not five [5]); that the clerk had simply failed to fill up the ACR correctly. In its 6 July 1962 Decision, the BOC noted that "while the two (2) names listed in [Santiago's] [ACR application] Jose and Elena, bear the same names as two of the [9] applicants, the difference in the ages of said persons compared to the said applicants, casts serious doubts on their Identity." 16

2. The second of the three (3) premises noted in the beginning of this section is: that Francisco Gatchalian was the legitimate son of Santiago Gatchalian and therefore followed the supposed Philippine citizenship of Santiago. This premise has in fact two (2) parts: (a) the physical filiation of Francisco Gatchalian as the son of Santiago Gatchalian; and (b) that Santiago Gatchalian was lawfully married to the Chinese mother of Francisco Gatchalian. This premise is remarkable for the total absence of documentary support for either of its two (2) parts. Francisco was born in Amoy, China in 1931, according to Santiago. The sum total of the evidence on this premise consists of Francisco Gatchalian's own statement and that of Santiago. No birth certificate or certified true copy thereof, or comparable documentation under Chinese law, was submitted by either Santiago or by Francisco. No secondary evidence of any kind was submitted. No testimony of a disinterested person was offered.

Santiago Gatchalian claimed to have been married in China in 1926 to a Chinese woman, Chua Gim Tee, out of which marriage Francisco was allegedly born. No documentary proof of such marriage in China, whether primary or secondary, was ever submitted. Neither was there ever presented any proof of the contents of the Chinese law on marriage in 1926 and of compliance with its requirements.

It is firmly settled in our jurisdiction that he who asserts and relies upon the existence of a valid foreign marriage must prove not only the foreign law on marriage and the fact of compliance with the requisites of such law, but also the fact of the marriage itself. In Yao Kee vs. Sy-Gonzales, 17 the issue before the Court was whether the marriage of petitioner Yao Kee to the deceased Sy Kiat in accordance with Chinese law and custom had been adequately proven. In rendering a negative answer, this Court, speaking through Cortes, J., said:

These evidence may very well prove the fact of marriage between Yao Kee and Sy Kiat. However, the same do not suffice to establish the validity of said marriage in accordance with Chinese law and custom.

Custom is defined as "a rule of conduct formed by repetition of acts, uniformly observed (practiced) as a social rule, legally binding and obligatory." The law requires that "a custom must be proved as a fact, according to the rules of evidence" [Article 12, Civil Code]. On this score the Court had occasion to state that "a local custom as a source of right can not be considered by a court of justice unless such custom is properly established by competent evidence like any other fact" [Patriarca vs. Orato, 7 Phil. 390, 395 (1907)]. The same evidence, if not one of a higher degree, should be required of a foreign custom.

The law on foreign marriages is provided by Article 71 of the Civil Code which states that:

Art. 71. All marriages performed outside the Philippines in accordance with the laws in force in the country where they were performed, and valid there as such, shall also be valid in this country, except bigamous, polygamous, or incestuous marriages, as determined by Philippine law.

Construing this provision of law the Court has held that to establish a valid foreign marriage two things must be proven, namely: (1) the existence of the foreign law as a question of fact; and (2) the alleged foreign marriage by convincing evidence [Adong vs. Cheong Seng Gee, 43 Phil. 43, 49 (1922). 18 (Emphasis supplied)

In the instant case, there was absolutely no proof other than Santiago's bare assertion that a marriage ceremony between Santiago and Chua Gim Tee had taken place in China in accordance with Chinese law. The contents of the relevant Chinese law on marriage at the time of the supposed marriage, was similarly not shown. Should it be assumed simply that the requirements of the 1926 Chinese law on marriage are identical with the requirements of the Philippine law on marriage, it must be pointed out that neither Santiago nor Francisco Gatchalian submitted proof that any of the requirements of a valid marriage under Philippine law had been complied with.

I respectfully urge, therefore, that the reliance in the majority opinion upon our conflicts rule on marriage embodied in Article 71 of the Civil Code (now Article 26 of the Family Code; then Section 19 of Act No. 3630) is unwarranted. The rule that a foreign marriage valid in accordance with the law of the place where it was performed shall be valid also in the Philippines, cannot begin to operate until after the marriage performed abroad and its compliane with the requirements for validity under the marriage law of the place where performed, are first shown as factual matters. There is, in other words, no factual basis for a presumption that a lawful marriage under Chinese law had taken place in 1926 in China between Santiago Gatchalian and Chua Gim Tee.

It must follow also that Francisco Gatchalian cannot simply rely upon a presumption of legitimacy of offspring of a valid marriage. As far as the record here is concerned, there could well have been no marriage at all in China between Santiago Gatchalian and Chua Gim Tee (just as Santiago had insisted that his father and mother had never married each other) and that consequently Francisco Gatchalian could just as well have followed the nationality of his admittedly Chinese mother. 3. The last premise noted earlier is the supposed filiation of William Gatchalian as a legitimate son of Francisco which resulted in William's following the supposed Philippine citizenship of Francisco Gatchalian. William was, according to Santiago Gatchalian, born in Amoy, China in 1949. Here again, just in the case of Francisco Gatchalian, there is a complete absence of contemporaneous documentary evidence of the supposed filiation of William Gatchalian as a legitimate son of Francisco Gatchalian. 19 The only support ever presented for such alleged filiation consisted of the oral statements of Santiago Gatchalian, Francisco Gatchalian and William Gatchalian. It is difficult to resist the impression that there took place here a pyramiding of oral statements, each resting upon another oral statement and all going back to the supposed bastardy of Santiago, a status suddenly discovered or asserted by Santiago in his 55th year in life. No birth certificate, or comparable documentation under Chinese law, exhibiting the name of William Gatchalian was submitted.

Francisco Gatchalian stated that he had married a Chinese woman, Ong Siu Kiok, in Amoy in 1947 according to Chinese custom. Once again, we must note that there was no proof submitted that a marriage ceremony satisfying the requirements of "Chinese custom" had ever taken place in China between Francisco and Ong Siu Kiok; neither was there any proof that a marriage "according to Chinese custom" was valid and lawful under Chinese law in 1947 and of factual compliance with the requirements of the law and custom in China concerning marriage. 20 Ong Siu Kiok was alleged to have died in Macau and never came to the Philippines. It must then follow, once again, that no presumption of a lawful marriage between Francisco Gatchalian and his alleged Chinese wife can be invoked by William Gatchalian. It follows still further that William Gatchalian cannot invoke any presumption of legitimacy in his own favor. As in the case of his putative father Francisco, William could as well have followed the nationality of his concededly Chinese mother.

One final note: it might be thought that the result I have reached is unduly harsh considering the prolonged physical stay of William Gatchalian in the country. But this Court must apply the law as it is in fact written. I respectfully submit that the appropriate recourse of respondent William Gatchalian, should he feel that he has some humanitarian claim to a right to stay in the Philippines, is to the political departments of Government. Those departments of Government may then consider the wisdom and desirability, in the light of the interests of the country, of legislation permitting the legalization of the entry and stay in the Philippines of respondent William Gatchalian and those similarly situated. Unless and until such legislation is enacted, this Court really has no choice save to apply and enforce our immigration law and regulations and our law on citizenship.

Accordingly, I vote to GRANT the Petition for Certiorari and Prohibition in G.R. Nos. 95122-23, and to SET ASIDE the Resolution/Temporary Restraining Order dated 7 September 1990 issued by respondent Judge Dela Rosa in Civil Case No. 90-5214, as well as the Order of respondent Judge Capulong dated 6 September 1990 in Civil Case No. 3431-V-90; and to RE-AFFIRM that respondent William Gatchalian is not a Philippine citizen.

Melencio-Herrera, Cruz, Paras, Padilla, Regalado, JJ., concur

Separate Opinions

DAVIDE, JR., J., concurring-dissenting opinion:

As to his alleged marriage to Chu Gim Tee, and their five children, we only have his self-selling oral testimony, thus:

Q What is the name of your wife?

A Her name is Chu Gim Tee.

Q Is she still alive?

A No, she died in 1951, in Amoy.

Q Do you have children with her, if so, mention their names, ages and sexes?

A Yes. I have five children, all of them alive and they are as follows:

On 18 February 1960, Santiago was recalled to be confronted re his claim as to the number of his children; he testified thus:

Q Why did you not mention Benjamin in the list?

A Because he was not yet baptized then. (Transcript, p. 7, Annex "2" of Comment with Counter-Petition).

The explanation is very flimsy and does not deserve the respect of a passing glance. There is no showing that Gatchalian took any immediate definite positive step against the 6 July 1962 decision and the warrant of exclusion.

Said paragraph (b) of Section 37 reads in full as follows:

(b) Deportation may be effected under clauses 2, 7, 8, 11 and 12 paragraph (a) of this section at any time after entry, but shall not be effected under any other clause unless the arrest in the deportation proceedings is made within five years after the cause of deportation arises. Deportation under clauses 3 and 4 shall not be effected if the court or judge thereof, when sentencing the alien, shall recommend to the Commissioner of Immigration that the alien be not deported. (As amended by Sec. 13, R.A. No. 503). (Emphasis supplied). Note that the five-year period applies only to clauses other than 2, 7, 8, 11 and 12 of paragraph (a) of the Section. In respect to clauses 2, 7, 8, 11 and 12, the limitation does not apply. These clauses read as follows:

(2) Any alien who enters the Philippines after the effective date of this Act, who was not lawfully admissible at the time of entry; xxx xxx xxx

(7) Any alien who remains in the Philippines in violation of any limitation or condition under which he was admitted as a non- immigrant;

(11) Any alien who engages in profiteering, hoarding, or black-marketing, independent of any criminal action which may be brought against him;

Mr. Gatchalian is covered by clause (2); besides, the warrant for his exclusion was issued within a period of five years following his entry.

FELICIANO, J., dissenting:

I regret I am unable to join the opinion written by my distinguished brother in the Court, Mr. Justice A.A. Bidin, and I, therefore, undertake to submit this separate opinion.

For convenience, the following is a precis of the matters discussed in detail below.

3. In its Decision in Arocha vs. Vivo, 1 the Supreme Court upheld the validity and legal effect of the 6 July 1962 Decision of the BOC and the Warrant of Exclusion not only against Pedro Gatchalian, the particular Gatchalian who was taken into custody by immigration authorities in 1965, but also against Pedro's co-applicants, which include respondent William Gatchalian. The validity of the claim to Philippine citizenship by Pedro Gatchalian, as a supposed descendant of Santiago Gatchalian, allegedly a natural born citizen of the Philippines, was directly placed in issue in the 1961-1962 proceedings before the BSI and the BOC, and by the Solicitor General and Pedro Gatchalian in Arocha vs. Vivo (supra). In upholding the validity and legal effect of the 6 July 1962 BOC Decision that the Gatchalian applicants had not substantiated their claim to Philippine citizenship, this Court in effect ruled that the Gatchalian applicants were not Philippine citizens, whatever their true nationality might be. 4. Should this Court now determine to examine once more the claim to Philippine citizenship of respondent William Gatchalian, a detailed examination of the facts, including the supposed status of Santiago Gatchalian as a natural born Philippine citizenship, shows that those claims to Philippine citizenship were indeed not proven by respondent William Gatchalian and his co-applicants. Since respondent William Gatchalian does not claim to have been naturalized as a Philippine citizen after rendition of the 6 July 1962 BOC Decision, he must accordingly be held to be not a Philippine citizen.

The Mission Order or Warrant of Arrest dated 14 August 1990 issued by petitioner Commissioner Domingo, CID, reads in part as follows:

Intelligence Officers/Agents: All Teams

Team No.

Subject: William, Juan, Francisco, Jose, Benjamin, Jonathan, Pedro, Gloria, Elena, all surnamed Gatchalian

Address: Bgy. Canumay, Valenzuela, M.M. x x------x x

1. Make a warrantless arrest under the Rules of Criminal Procedure, Rule 113, Section 5, for violation of the Immigration Act, Section 37, para. a; Secs. 45 and 46 Administrative Code;

2. Make a warrantless search as an incident to a lawful arrest under Rule 125, Section 12. 3. Deliver the suspect to the Intelligence Division and immediately conduct custodial interrogation, after warning the suspect that he has a right to remain silent and a right to counsel;

2. It is indispensably necessary to refer to the Warrant of Exclusion of 6 July 1962 which read as follows:

AND WHEREAS, the Decision of the Board of Commissioners, dated 6 July 1962, ordering the exclusion of above-named applicants, has now become final and executory. NOW THEREFORE, by virtue of the authority vested in the undersigned by law, you are hereby ordered to exclude the aforenamed individuals and cause their removal from this country to the port where they came or to the port of the country of which they are nationals, on the first available transportation, in accordance with law. (Emphasis supplied)

That respondent being an alien misrepresented himself as Philippine Citizen by false statements and fraudulent documents in violation of the Immigration Act, Sec. 45, par. (c), (d) and (e).

That respondent being an alien national is an undocumented person classified as excludable under the Immigration Act, Sec. 29 (a) sub par. (17). xxx xxx xxx

(Emphasis supplied)

Section 37 (a) (1) and (2), of Commonwealth Act No. 613, as amended, provides as follows:

(2) An alien who enters the Philippines after the effective date of this act, who was not lawfully admissible at the time of entry. xxx xxx xxx

(Emphasis supplied)

Section 37 (a) (2), quoted above, relates back to Section 29 (a) of the Immigration Act, as amended, which lists the classes of alien excluded from entry in the Philippines, as follows:

Sec. 29. (a). The following classes of aliens shall be excluded from entry into the Philippines; xxx xxx xxx

(17) Persons not properly documented for admission as may be required under the provisions of this act. (Emphasis supplied) Thus, in the instant case, the net result is that no time limitation is applicable in respect of the carrying out of the Warrant of Exclusion issued in 1962.

Finally, we must recall once more that what is actually involved in the case at bar is exclusion, not deportation.

SO ORDERED. (Emphasis supplied)

4. In Arocha vs. Vivo (supra), the Supreme Court had before it the following items:

1. The 6 July 1961 Decision of the BSI which allowed the entry of respondent Gatchalian and his co-applicants as citizens of the Philippines;

3. The 6 July 1962 Decision of the BOC in which the BOC had reviewed motu proprio the Gatchalian proceedings before the BSI and reversed the BSI decision of 6 July 1961;

4. The Warrant of Exclusion dated 6 July 1962 issued pursuant to the 6 July 1962 Decision of the BOC; and

5. A decision of the Manila Court of First Instance dated 31 July 1965, rendered in a habeas corpusproceeding brought to effect the release of Pedro Gatchalian who had been taken into custody by immigration officials pursuant to the 6 July 1962 Warrant of Exclusion. The Court of First Instance ("CFI") decision ordered Pedro Gatchalian's release upon the ground that the 6 July 1962 BOC Decision had been issued beyond the one (1) year period for review of the BSI decision of 6 July 1961. The CFI decision was reversed and nullified by the Supreme Court.

The Court further rejected Pedro Gatchalian's argument that he was not bound by the 6 July 1962 BOC Decision:

Section 29. . . . xxx xxx xxx

(1) an alien lawfully resident in the Philippines who is returning from a temporary visit abroad;

(2) an alien applying for temporary admission.

Where a duty is entrusted to a board, composed of different individuals, that board can act officially only as such, in convened sessions, with the members, or a quorum thereof, present. [Citation omitted] 10 (Emphasis supplied)

The act of Mr. Nituda of reversing the 1962 Decision of the BOC could not hence be considered as the act of the BOC itself. The pretended act of reversal 0of Mr. Nituda must, therefore, be stricken down and disregarded for having been made in excess of his lawful authority. The 1973 order of Nituda was ineffective to vest any right upon respondent Gatchalian who, it is worth nothing, did not pretend to submit any newly discovered evidence to support their claim to Philippine citizenship already rejected by the 1962 BOC. In essence, Mr. Nituda purported not merely to set aside the 1962 BOC Decision but also the 1967 Decision of this Court in Arocha vs. Vivo.

1. The supposed Philippine citizenship of Santiago Gatchalian must be considered first. Santiago was allegedly born in Binondo, Manila, on 25 July 1905 to Pablo Pacheco and Marciana Gatchalian. The records do not disclose anything about Pablo Pacheco but everyone, including William Gatchalian, assumes that Pablo Pacheco was a Chinese subject and never became a citizen of the Philippine Islands. The basic claim of Santiago was that his mother Marciana Gatchalian was a Philippine citizen and that Marciana was not lawfully married to Pablo Pacheco and that consequently, he (Santiago) was an illegitimate son of Marciana Gatchalian. The first point that should be made in respect of Santiago's claim was that he had always regarded himself as a Chinese citizen until around 1958 or 1960, that is, when he reached the age of 53 or 55 years. Santiago, by his own testimony, lived the bulk of his adult life in China where he went in 1924 at age 19 and where he stayed for about 13 years returning to the Philippines for the first time in 1937. He returned in the same year to China, stayed there for another nine (9) years, and then came back to the Philippines again in 1946. He once more left the Philippines for China on 14 April 1947 and returned on 14 June 1947. Upon his second return to the Philippines in 1946, he documented himself as a Chinese national: he was holder of ICR No. 7501 dated 3 May 1946. He continued to be documented as such, the record showing that he was also holder of an ACR No. A-219003 dated 13 January 1951. Santiago, again by his own statement, married in China a Chinese woman. This Chinese wife, however, Santiago never brought or attempted to bring to the Philippines and she allegedly died in China in 1951, or four (4) years after Santiago had permanently returned to the Philippines.

That Order also casually disregarded a number of other things, one of which was a document dated 1902 signed by Maxima Gatchalian, the mother of Marciana Gatchalian, stating that Maxima —

It is suggested in the majority opinion that the question of citizenship of Santiago Gatchalian is a closed matter which cannot be reviewed by this Court; that per the records of the Bureau of Immigration, as of 20 July 1960, Santiago Gatchalian had been declared to be a Filipino citizen and that this forecloses re-opening of that question thirty (30) years later. I must, with respect, disagree with this suggestion. The administrative determination by the Bureau of Immigration as of 20 July 1960 certainly does not constitute res adjudicata that forecloses this Court from examining the supposed Philippine citizenship of Santiago Gatchalian upon which private respondent William Gatchalian seeks to rely. The Court cannot avoid examining the Philippine nationality claimed by Santiago Gatchalian or, more accurately, claimed on his behalf by William Gatchalian, considering that one of the central issues here is the tanability or untenability of the claim of William Gatchalian to Philippine citizenship and hence to entry or admission to the Philippines as such citizen. 2. The second of the three (3) premises noted in the beginning of this section is: that Francisco Gatchalian was the legitimate son of Santiago Gatchalian and therefore followed the supposed Philippine citizenship of Santiago. This premise has in fact two (2) parts: (a) the physical filiation of Francisco Gatchalian as the son of Santiago Gatchalian; and (b) that Santiago Gatchalian was lawfully married to the Chinese mother of Francisco Gatchalian. This premise is remarkable for the total absence of documentary support for either of its two (2) parts. Francisco was born in Amoy, China in 1931, according to Santiago. The sum total of the evidence on this premise consists of Francisco Gatchalian's own statement and that of Santiago. No birth certificate or certified true copy thereof, or comparable documentation under Chinese law, was submitted by either Santiago or by Francisco. No secondary evidence of any kind was submitted. No testimony of a disinterested person was offered.

The law on foreign marriages is provided by Article 71 of the Civil Code which states that:

3. The last premise noted earlier is the supposed filiation of William Gatchalian as a legitimate son of Francisco which resulted in William's following the supposed Philippine citizenship of Francisco Gatchalian. William was, according to Santiago Gatchalian, born in Amoy, China in 1949. Here again, just in the case of Francisco Gatchalian, there is a complete absence of contemporaneous documentary evidence of the supposed filiation of William Gatchalian as a legitimate son of Francisco Gatchalian. 19 The only support ever presented for such alleged filiation consisted of the oral statements of Santiago Gatchalian, Francisco Gatchalian and William Gatchalian. It is difficult to resist the impression that there took place here a pyramiding of oral statements, each resting upon another oral statement and all going back to the supposed bastardy of Santiago, a status suddenly discovered or asserted by Santiago in his 55th year in life. No birth certificate, or comparable documentation under Chinese law, exhibiting the name of William Gatchalian was submitted.

G.R. No. 82585 November 14, 1988

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

G.R. No. 82827 November 14, 1988

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

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

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

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

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

R E S O L U T I O N

PER CURIAM:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Separate Opinions

GUTIERREZ, JR., J., concurring:

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

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

We have in these four petitions the unusual situation where the highest official of the Republic and one who enjoys unprecedented public support asks for the prosecution of a newspaper columnist, the publisher and chairman of the editorial board, the managing editor and the business manager in a not too indubitable a case for alleged libel. I am fully in accord with an all out prosecution if the effect will be limited to punishing a newspaperman who, instead of observing accuracy and fairness, engages in unwarranted personal attacks, irresponsible twisting of facts, of malicious distortions of half-truths which tend to cause dishonor, discredit, or contempt of the complainant. However, this case is not a simple prosecution for libel. We have as complainant a powerful and popular President who heads the investigation and prosecution service and appoints members of appellate courts but who feels so terribly maligned that she has taken the unorthodox step of going to court inspite of the invocations of freedom of the press which would inevitably follow.

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

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

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

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

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

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

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

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

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

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

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

Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. ... (at pp. 700-701) Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that Messrs. Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly participated in a wilful purveying of falsehood? Considering the free speech aspects of these petitions, should not a differentiated approach to their particular liabilities be taken instead of lumping up everybody with the offending columnist? I realize that the law includes publishers and editors but perhaps the "chilling effect" issue applies with singular effectivity to publishers and editors vis-a-vis newspaper columnists. There is no question that, ordinarily, libel is not protected by the free speech clause but we have to understand that some provocative words, which if taken literally may appear to shame or disparage a public figure, may really be intended to provoke debate on public issues when uttered or written by a media personality. Will not a criminal prosecution in the type of case now before us dampen the vigor and limit the variety of public debate? There are many other questions arising from this unusual case which have not been considered.

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

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

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

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

Separate Opinions GUTIERREZ, JR., J., concurring:

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

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

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

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

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

I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly drawn ones. I see no reason to disagree with the way the Court has resolved them. The first issue on prematurity is moot. The second issue discusses a procedure now embodied in the recently amended Rules of Court on how a Judge should proceed before he issues a warrant of arrest. Anent the third issue, considerations of public policy dictate that an incumbent President should not be sued. At the same time, the President cannot stand by helplessly bereft of legal remedies if somebody vilifies or maligns him or her. The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception. I know that most of our fiscals and judges are courageous individuals who would not allow any considerations of possible consequences to their careers to stand in the way of public duty. But why should we subject them to this problem? And why should we allow the possibility of the trial court treating and deciding the case as one for ordinary libel without bothering to fully explore the more important areas of concern, the extremely difficult issues involving government power and freedom of expression.

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

G.R. No. L-23051 October 20, 1925

THE PEOPLE OF THE PHILIPPINES ISLANDS, plaintiff-appellant, vs. JOSE MA. VELOSO, defendant-appellant.

Claro M. Recto for appellant. Attorney-General Villa-Real for appellee.

MALCOLM, J.:

This is an appeal from a judgment of the Court of First Instance of Manila finding the accused, Jose Ma. Veloso, guilty of the crime of resistance of the agents of the authority, in violation of article 252 of the Penal Code, and sentencing him to four months and one day imprisonment, arresto mayor, with the accessory penalties, to pay a fine of P200, with the corresponding subsidiary imprisonment in case of insolvency, and to pay the costs. The errors assigned by counsel for the accused as appellant, go to the proposition that the resistance of the police was justifiable on account of the illegality of the John Doe search warrant.

In May, 1923, the building located at No. 124 Calle Arzobispo, City of Manila, was used by an organization known as the Parliamentary Club. Jose Ma. Veloso was at that time a member of the House of Representative of the Philippine Legislature. He was also the manager of the club.

The police of Manila had reliable information that the so-called Parliamentary Club was nothing more than a gambling house. Indeed, on May 19, 1923, J. F. Townsend, the chief of the gambling squad, had been to the club and verified this fact. As a result, on May 25, 1923, Detective Andres Geronimo of the secret service of the City of Manila, applied for, and obtained a search warrant from Judge Garduño of the municipal court. Thus provided, the police attempted to raid the Parliamentary Club a little after three in the afternoon of the date above- mentioned. They found the doors to the premises closed and barred. Accordingly, one band of police including policeman Rosacker, ascended a telephone pole, so as to enter a window of the house. Other policemen, headed by Townsend, broke in the outer door.

Once inside the Parliamentary Club, nearly fifty persons were apprehended by the police. One of them was the defendant Veloso. Veloso asked Townsend what he wanted, and the latter showed him the search warrant. Veloso read it and told Townsend that he was Representative Veloso and not John Doe, and that the police had no right to search the house. Townsend answered that Veloso was considered as John Doe. As Veloso's pocket was bulging, as if it contained gambling utensils, Townsend required Veloso to show him the evidence of the game. About five minutes was consumed in conversation between the policemen and the accused the policemen insisting on searching Veloso, and Veloso insisting in his refusal to submit to the search.

At last the patience of the officers was exhausted. So policeman Rosacker took hold of Veloso only to meet with his resistance. Veloso bit Rosacker in the right forearm, and gave him a blow in another part of the body, which injured the policeman quite severely. Through the combined efforts of Townsend and Rosacker, Veloso was finally laid down on the floor, and long sheets of paper, of reglas de monte, cards, cardboards, and chips were taken from his pockets.

All of the persons arrested were searched and then conducted to the patrol wagons. Veloso again refused to obey and shouted offensive epithets against the police department. It was necessary for the policemen to conduct him downstairs. At the door, Veloso resisted so tenaciously that three policemen were needed to place him in the patrol wagon. 1awph!l.net

In the municipal court of the City of Manila, the persons arrest in the raid were accused of gambling. All of them were eventually acquitted in the Court of First Instance for lack of proof, with the sole exception of Veloso, who was found guilty of maintaining a gambling house. This case reached the appellate court where the accused was finally sentenced to pay a fine of P500. (No. 22163. 1 )

The foregoing are the principal facts taken mainly from the findings of the trial judge, the Honorable Vicente Nepomuceno. Counsel for the appellant makes no effort to impugn these findings, except that he stresses certain points as more favorable to the case of his client. The defense, as previously indicated, is planted squarely on the contention that since the name of Veloso did not appear in the search warrant, but instead the pseudonym John Doe was used, Veloso had a legal right to resist the police by force. The nature of this defense makes it advisable to set forth further facts, relating particularly to the search warrant, before passing to the law.

There are found in the record the application for search warrant, the affidavit for search warrant, and the search warrant. The application reads:

UNITED STATES OF AMERICA PHILIPPINE ISLANDS

IN THE MUNICIPAL COURT OF THE CITY OF MANILA

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff, vs. JOHN DOE, Defendant.

APPLICATION FOR (G) SEARCH WARRANT

Testimony taken before Hon. L. Garduño, Judge, Municipal Court, Manila.

Andres Geronimo, being duly sworn, testifies as follows:

Q. What is your name, residence and occupation? — A. Andres Geronimo, No. 47 Revellin, detective.

Q. Are you the applicant of this search warrant? — A. Yes, sir.

Q. Do you know the premises situated at No. 124 Calle Arzobispo, District of W. C., City of Manila? — A. Yes. sir.

Q. Do you know who occupies said premises? — A. I do not know. According to the best of my information the house is occupied by John Doe.

Q . What are your reasons for applying for this search warrant? — A. It has been reported to me by a person whom I consider to be reliable that in said premises there are instruments and devices used in gambling games, such as cards, dice, chips, lottery tickets, lists of drawing and lists used in prohibited games kept. It has been reported to me by a person whom I consider to be reliable that there are or there will be gambling conducted in said premises. The aforesaid premises are known as gambling house. I have watched the foregoing premises and believed it to be a gambling house and a place where instruments and devices used in gambling games, such as cards, dice, chips, lottery tickets, lists of drawing and lists used in prohibited games are kept.

I, Andres Geronimo, being duly sworn, depose and say that I have read the foregoing questions and answers and that I find the same to correct and true to the best of my knowledge and belief.

(Sgd.) ANDRES GERONIMO Subscribed and sworn to before me this 25th day of May, 1923.

(Sgd.) L. GARDUÑO Judge, Municipal Court

The affidavit and the search warrant are so nearly alike that it will suffice to copy the search warrant alone. This document reads:

UNITED STATES OF AMERICA PHILIPPINE ISLANDS

IN THE MUNICIPAL COURT OF THE CITY OF MANILA

THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff, vs.

JOHN DOE, Defendant.

SEARCH WARRANT (G)

The People of the Philippine Islands, to any member of the

Police Force of the City of Manila.

GREETING:

Proof by affidavit having this day been made before me by Andres Geronimo that he has good reason to believe and does believe that John Doe has illegally in his possession in the building occupied by him and which is under his control, namely in the building numbered 124 Calle Arzobispo, City of Manila, Philippines Islands, certain devices and effects used in violation of the Gambling Law, to wit: money, cards, chips, reglas, pintas, tables and chairs and other utensils used in connection with the game commonly known as monte and that the said John Doe keeps and conceals said devices and effects with the illegal and criminal intention of using them in violation of the Gambling Law.

Now therefore, you are hereby commanded that at any time in the day or night within ten (10) days on or after this date to make a search on the person of said John Doe and in the house situated at No. 124 Calle Arzobispo, City of Manila, Philippine Islands, in quest of the above described devices and effects and if you find the same or any part thereof, you are commanded to bring it forthwith before me as provided for by law.

Given under my hand, this 25th day of May, 1923.

(Sgd.) L. GARDUÑO Judge, Municipal Court Coming now to the legal aspects of the case it is first worthy of mention that by reason of the Fourth Amendment to the United States Constitution and the eleventh and eighteenth paragraphs of the Philippine Bill of Rights, as found in the present Organic Act, the security of the dwelling and the person is guaranteed. The organic act provides "that the right to be secured against unreasonable searches and seizures shall not be violated." It further provides "that no warrant shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the person or things to be seized."

In the Philippine Code of Criminal Procedure are found provisions of the same import although naturally entering more into detail. It is therein provided, among other things, that "a search warrant shall not issue except for probable cause and upon application supported by oath particularly describing the place to be searched and the person of thing to be seized." (Section 97.) After the judge or justice shall have examined on oath the complainant and any witnesses he may produce, and shall have taken their depositions in writing (section 98), and after the judge or justice is satisfied of the existence of facts upon which the application is based, or that there is probable cause to believe that they exist, he must issue the warrant which must be substantially in the following form:

. . . You are, therefore, commanded, . . . to make immediate search on the person of ...... , or in the house situated ...... (describing it or any other place to be searched with reasonable particularity, as the case may be) for the following property: . . . ." (Section 99.) It is finally provided that "a person charged with a crime may be searched for dangerous weapons or anything which may be used as proof of the commission of the crime. (Section 105).

A search warrant must conform strictly to the requirements of the constitutional and statutory provisions under which it is issued. Otherwise it has rightly been held, must be absolutely legal, "for there is not a description of process known to the law, the execution of which is more distressing to the citizen. Perhaps there is none which excites such intense feeling in consequence of its humiliating and degrading effect." The warrant will always be construed strictly without, however, going the full length of requiring technical accuracy. No presumptions of regularity are to be invoked in aid of the process when an officer undertakes to justify under it. (24 R. C. L., pp. 711, et seq.; Reed vs. Rice [1829], 2 J. J. Marshall [Ky.] 44; 19 Am. Dec., 122; Smith vs. McDuffee [1914], 72 Ore., 276; Ann. Cas. 1916 D, 947.)

The search warrant has been likened to a warrant of arrest. Although apprehending that there are material differences between the two, in view of the paucity of authority pertaining to John Doe search warrants we propose to take into consideration the authorities relied upon by the appellant, thus following the precedent of Uy Kheytin vs. Villareal ([1920], 42 Phil., 886), where the regularity of the issuance of the search warrant was also questioned. In the lower court, and again in this court, the attorneys for the defense quoted from Wharton's Criminal Procedure. In that text at pages 51, 52, 54, 55, and 56 of volume 1 of the Tenth Edition, is found the following:

Form and Sufficiency of Warrant. Technical accuracy is not required. . . . x x x x x x x x x

Name and description of the accused should be inserted in the body of the warrant and where the name is unknown there must be such a description of the person accused as will enable the officer to identify him when found. x x x x x x x x x

Warrant for apprehension of unnamed party, or containing a wrong name for the party to be apprehended is void, except in those cases where it contains a descriptio personae such as will enable the officer to identify the accused. x x x x x x x x x

John Doe' Warrants. It follows, on principle, from what has already been said regarding the essential requirements of warrants for the apprehension of persons accused, and about blank warrants, that a warrant for the apprehension of a person whose true name is unknown, by the name of "John Doe" or "Richard Roe," "whose other or true name in unknown," is void, without other and further descriptions of the person to be apprehended, and such warrant will not justify the officer in acting under it. Such a warrant must, in addition, contain the best descriptio personae possible to be obtained of the person or persons to be apprehended, and this description must be sufficient to indicate clearly the proper person or persons upon whom the warrant is to be served; and should state his personal appearance and peculiarities, give his occupation and place of residence, and any other circumstances by means of which he can be identified.

Person apprehended in act of committing a crime, under a "John Doe" warrant, on the other hand, the apprehension will not be illegal, or the officer liable, because under such circumstances it is not necessary that a warrant should have been issued.

The authority most often cited to sustain the text, and quoted with approval by the United States Supreme Court, is the case of Commonwealth vs. Crotty ([1865], 10 Allen [Mass.], 403). It there appeared that one Peaslee had made a complaint to the police court Lee, charging that "John Doe or Richard Roe, whose other or true name is to your complainant unknown," had committed an assault and battery upon him; upon which complaint a warrant was issued against "John Doe or Richard Roe, whose other or true name is to your complainant unknown, named in the foregoing complaint." Neither the complaint nor the warrant contained any further description or means of identification of the person to be arrested. Crotty resisted the arrest upon the ground that the warrant was invalid. Mr. Chief Justice Bigelow, as the organ of the Supreme Court of Massachusetts, said:

We cannot entertain a doubt that the warrant on which the officer attempted to arrest one of the defendant at the time of the alleged riot was insufficient, illegal and void. It did not contain the name of the defendant, nor any description or designation by which he could be known and identified as the person against whom it was issued. It was in effect a general warrant, upon which any other individual might as well have been arrested, as being included in the description, as the defendant himself. Such a warrant was contrary to elementary principles, and in direct violation of the constitutional right of the citizen, as set forth in the Declaration of Rights, article 14, which declares that every subject has a right to be secure from all unreasonable searches and seizures of his person, and that all warrants, therefore, are contrary to this right, if the order in the warrant to a civil officer to arrest one or more suspected persons or to seize their property be not accompanied with a special designation of the persons or objects of search, arrest or seizure. This is in fact only a declaration of an ancient common law right. It was always necessary to express the name or give some description of a party to be arrested on a warrant; and if one was granted with the name in blank, and without other designation of the person to be arrested, it was void. (1 Hale P. C. 577. 2 Ib. 119. Foster, 312. 7 Dane Ab. 248. 1 Chit. Crim. Law, 39. Mead vs. Haws, 7 Cow., 332, and cases cited.)

This rule or principle does not prevent the issue and service of a warrant against a party whose name is unknown. In such case the best description possible of the person to be arrested is to be given in the warrant; but it must be sufficient to indicate clearly on whom it is to be served, by stating his occupation, his personal appearance and peculiarities, the place of his residence, or other circumstances by which he can be identified. (1 Chit. Crim. Law, 39, 40.)

The warrant being defective and void on its face, the officer had no right to arrest the person on whom he attempted to serve it. He acted without warrant and was a trespasser. The defendant whom he sought to arrest had a right to resist by force, using no more than was necessary to resist the unlawful acts of the officer . . .

The defendants, therefore, in resisting the officer in making an arrest under the warrant in question, if they were guilty of no improper or excessive force or violence, did not do an unlawful act by lawful means, or a lawful act by unlawful means, and so could not be convicted of the misdemeanor of a riot, with which they are charged in the indictment.

Appellant's argument, as based on these authorities, runs something like this. The law, constitutional and statutory, requires that the search warrant shall not issue unless the application "particularly" describe the person to be seized. A failure thus to name the person is fatal to the validity of the search warrant. To justify search and arrest, the process must be legal. Illegal official action may be forcibly resisted.

For the prosecution, however, as the arguments are advanced by the Attorney- General, and as the law was summarized by the trial judge, there is much to be said. Careful and logical reflection brings forth certain points of paramount force and exercising a decisive influence. We will now make mention of them by correlating the facts and the law.

In the first place, the affidavit for the search warrant and the search warrant itself described the building to be searched as "the building No. 124 Calle Arzobispo, City of Manila, Philippine Islands." This, without doubt, was a sufficient designation of the premises to be searched. It is the prevailing rule that a description of a place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended. (Steele vs. U. S. [1925], U. S. Supreme Court Advance Opinions 1924-1925; 69 Law. ed., 757). The police officers were accordingly authorized to break down the door and enter the premises of the building occupied by the so-called Parliamentary Club. When inside, they then had the right to arrest the persons presumably engaged in a prohibited game, and to confiscate the evidence of the commission of the crime. It has been held that an officer making an arrest may take from the person arrested any money or property found upon his person, which was used in the commission of the crime or was the fruit of the crime, or which may furnish the person arrested with the means of committing violence or of escaping, or which may be used as evidence on the trial of the cause, but not otherwise. (Moreno vs. Ago Chi [1909], 12 Phil., 439.)

Proceeding along a different line of approach, it is undeniable that the application for the search warrant, the affidavit, and the search warrant failed to name Jose Ma. Veloso as the person to be seized. But the affidavit and the search warrant did state that "John Doe has illegally in his possession in the building occupied by him, and which is under his control, namely, in the building numbered 124 Calle Arzobispo, City of Manila, Philippine Islands, certain devices and effects used in violation of the Gambling Law." Now, in this connection, it must not be forgotten that the Organic Act requires a particular description of the place to be searched, and the person or things to be seized, and that the warrant in this case sufficiently described the place and the gambling apparatus, and, in addition, contained a description of the person to be seized. Under the authorities cited by the appellant, it is invariably recognized that the warrant for the apprehension of an unnamed party is void, "except in those cases where it contains a description personae such as will enable the officer to identify the accused." The description must be sufficient to indicate clearly the proper person upon whom the warrant is to be served. As the search warrant stated that John Doe had gambling apparatus in his possession in the building occupied by him at No. 124 Calle Arzobispo, City of Manila, and as this John Doe was Jose Ma. Veloso, the manager of the club, the police could identify John Doe as Jose Ma. Veloso without difficulty. Again, it must be remembered that No. 124 Calle Arzobispo was supposed to be used for club purposes. It was not the home of Veloso; not the place of abode of the family, which the law carefully protects in all of its sanctity. It was a club partially public in nature. It was, moreover, a camouflaged club with a high sounding name calculated to mislead the police, but intended for nefarious practices. In a club of such a character, unlike in the home, there would commonly be varying occupancy, a number of John Does and Richard Roes whose names would be unknown to the police.

It is also borne out by the authorities that, in defense of himself, any member of his family or his dwelling, a man has a right to employ all necessary violence. But even in the home, and much less so in a club or public place, the person sought to be arrested or to be searched should use no more force than is necessary to repel the unlawful act of the officers. To authorize resistance to the agents of the authority, the illegality of the invasion must be clearly manifest. Here, there was possibly a proper case for protest. There was no case for excessive violence to enforce the defendant's idea of a debatable legal question. (Commonwealth vs. Crotty, supra; People vs. Chan Fook [1921], 42 Phil., 230; 3 Groizard, Codigo Penal, pp. 456, 457.)

The trial judge deduced from the searched warrant that the accused Veloso was sufficiently identified therein. Mention was made by his Honor of the code provision relating to a complaint or information, permitting a fictitious name to be inserted in the complaint or information, in lieu of the true name. The Attorney-General adds to this the argument that the police were authorized to arrest without a warrant since a crime was being committed. We find it unnecessary to comment on this contention.

John Doe search warrants should be the exception and not the rule. The police should particularly describe the place to be searched and the person or things to be seized, wherever and whenever it is feasible. The police should not be hindered in the performance of their duties, which are difficult enough of performance under the best of conditions, by superficial adherence to technicality or far fetched judicial interference.

We agree with the trial judge and with the Attorney-General in their conclusions to the effect that the search warrant was valid, and that the defendant has been proved guilty beyond a reasonable doubt, of the crime of resistance of the agents of the authority.

The information alleges that at the time of the commission of the crime, the accused was a member of the House of Representatives. The trial court was led to consider this allegation in relation with the facts as an aggravating circumstance, and to sentence the accused accordingly. We doubt, however, that advantage was taken by the offender of his public position when he resisted the officers of the law. The offender did not necessarily make use of the prestige of his office as a means to commit a crime. Undoubtedly, Jose Ma. Veloso, as Juan de la Cruz, would have resisted the police just as stoutly, as the Honorable Jose Ma. Veloso did. The penalty, accordingly, falls within the medium of that provided by the Penal Code.

Finding present no reversible error, agreeing in all respects with the findings of facts as made by the trial judge, and concurring with the trial judge in his legal conclusion, with one exception, it results that the judgment appealed from must be, as it is hereby, affirmed, with the sole modification that the defendant and appellant shall be sentenced to two months and one day imprisonment, arresto mayor, with the costs of this instance against him. Let the corresponding order to carry this judgment into effect issue

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.

(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 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.

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.

Plana, Escolin Relova, Gutierrez, Jr., De la Fuente, Alampay and Patajo concur.

Makasiar, C.J., concurs in the result.

Aquino, J.; took no part.

Concepcion Jr., J., reserves his vote.

Separate Opinions

TEEHANKEE, J., concurring and dissenting:

All the articles thus seized fall under the exclusionary rule totally and unqualifiedly and cannot be used 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 search warrant the judge must strictly comply with the requirements of the Constitution and the statutory provisions. A liberal construction should be given in favor of the individual to prevent stealthy encroachment upon, or gradual depreciation of the rights secured by the Constitution. No presumptions of regularity are to be invoked in aid of the process when an officer undertakes to justify it." (Mata vs. Bayona, 128 SCRA 388, 393-394)

The majority pronouncement that "as an incident to (petitioner Mila Aguilar- Roque's) arrest, her dwelling 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 and jurisprudence. 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 needed a search warrant and obtained the void warrant in question. The exception of Rule 126, sec. 12 which allows a warrantless search of a person who is lawfully arrested is absolutely limited to his person, at the time of and incident to his arrest and to dangerous weapons or anything which may be used as proof of the commission of the offense." Such warrantless search obviously cannot be made in a place other than 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 dwelling could "later on the same day" be searched without warrant is to sanction an untenable violation, if not nullification, 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 Paño for the reasons adduced by Justice Melencio Herrera. In addition I wish to state the judge either did not fully know the legal and constitutional requirements for the issuance of a search warrant or he allowed himself to be used by the military. In either case his action can only be described as deplorable.

I do not agree with the ponencia when it says that 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. I agree with Justice Cuevas. for the reasons stated by him, that their retention cannot be justified by the provisions of Sec. 12, Rule 126 of the Rules of Court. But then again I cannot agree with Justice Cuevas, statement that not all the things seized can be ordered returned to their owners. He refers to "the subversive materials seized by the government agents." What are subversive materials? Whether a material is subversive or not is a conclusion of law, 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 Playboy magazines were seized from a labor leader now deceased and medicines were also seized from a physician who was suspected of being a subversive. I say return everything to the petitioners.

CUEVAS, J., concurring and dissenting

I fully agree with the pronouncement in the majority opinion nullifying Search warrant No. 80-84 issued by the Hon. Ernani Cruz Paño Executive Judge of the Regional Trial Court of Quezon City which was served at 239B Mayon St., Quezon City It does not specify with requisite particularity the things, objects or properties that may be seized hereunder. Being in the nature of a general warrant, it violates the constitutional mandate that the place to be searched and the persons or things to be seized, '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: SEC. 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 lawful arrest being the sole justification for the validity of the warrantless search under the aforequoted provision (Sec. 12, Rule 126) the same must be limited to and circumscribed by, the subject, time, and place of said arrest. As to subject, the warrantless search is sanctioned only with 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 found upon his person which was used in the commission of the crime or might furnish the prisoner with the means of committing violence or escaping or which may be used as evidence in the trial of the cause ... (In Re Moreno vs. Ago Chi, 12 Phil. 439: People vs. Veloso, 48 Phil. 169)

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

The right without a search warrant contemporaneously to search a person lawfully arrested while committing a crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons or other things to effect an escape from custody is not to be doubted. 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 was made. When it was entered and searched, the conspiracy was ended and the defendants were under arrest and in custody elsewhere. That search cannot be sustained as an incident of 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 general rule 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 the arrest.AGNELLO vs. U.S. supra. In this latter case, 269 U.S. 20 at 30, it is said that the officers have a right to make a search contemporaneously with the arrest. And if the purpose of the officers in making their entry is not to make an arrest, but to make a search to obtain evidence for some future arrest, then search is not incidental to arrest. BYARS vs. U.S. 273 U.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. at 11:30 A.M. of August 6. 1976. The search, on the other hand, was conducted after the arrest, that was 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 appear shown 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 a lawful arrest, the search of the premises at 239B Mayon St., Quezon City WITHOUT A VALID SEARCH WARRANT is ILLEGAL and violative of the constitutional rights of the respondent. The things and properties seized on the occasion of said illegal search are therefore INADMISSIBLE in evidence under the exclusionary rule. However, not all the things so seized can be ordered returned to their owners. Objects and properties the possession of which is prohibited by law, cannot be returned to their owners notwithstanding the illegality of their seizure. (Mata vs. Bayona, 128 SCRA 388, 1984 citing Castro vs. Pabalan, 70 SCRA 478). Thus, the subversive materials seized by the government agents which cannot be legally possessed by anyone under the law can and must be retained by the government.

Separate Opinions

TEEHANKEE, J., concurring and dissenting.

I concur with the concurring and dissenting opinion of Mr. Justice Vicente Abad Santos. The questioned search warrant has correctly been declared null and void in the Court's decision as a general warrant issued in gross violation of the constitutional mandate that "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 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 of this . . . section shall be inadmissible for any purpose in any proceeding" (Sec. 4[2]). This constitutional mandate expressly adopting the exclusionary rule has proved by historical experience to be the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures by outlawing all evidence illegally seized and thereby removing the incentive on the part of state and police officers to disregard such basic rights. What the plain language of the Constitution mandates is beyond the power of the courts to change or modify. All the articles thus seized fall under the exclusionary rule totally and unqualifiedly and cannot be used 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 search warrant the judge must strictly comply with the requirements of the Constitution and the statutory provisions. A liberal construction should be given in favor of the individual to prevent stealthy encroachment upon, or gradual depreciation of the rights secured by the Constitution. No presumptions of regularity are to be invoked in aid of the process when an officer undertakes to justify it." (Mata vs. Bayona, 128 SCRA 388, 393-394)

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 Paño for the reasons adduced by Justice Melencio Herrera. In addition I wish to state the judge either did not fully know the legal and constitutional requirements for the issuance of a search warrant or he allowed himself to be used by the military. In either case his action can only be described as deplorable.

CUEVAS, J., concurring and dissenting:

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:

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

In the instant case, petitioners were arrested at the intersection of Mayon St. and P. Margall St. at 11:30 A.M. of August 6. 1976. The search, on the other hand, was conducted after the arrest, that was 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 Mayon St., Quezon City. How far or how many kilometers is that place from the place where petitioner was arrested do not appear shown 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 a lawful arrest, the search of the premises at 239B Mayon St., Quezon City WITHOUT A VALID SEARCH WARRANT is ILLEGAL and violative of the constitutional rights of the respondent. The things and properties seized on the occasion of said illegal search are therefore INADMISSIBLE in evidence under the exclusionary rule. However, not all the things so seized can be ordered returned to their owners. Objects and properties the possession of which is prohibited by law, cannot be returned to their owners notwithstanding the illegality of their seizure. (Mata vs. Bayona, 128 SCRA 388, 1984 citing Castro vs. Pabalan, 70 SCRA 478). Thus, the subversive materials seized by the government agents which cannot be legally possessed by anyone under the law can and must be retained by the government.

G.R. No. 5649 THE UNITED STATES, plaintiff-appellee, vs. ISAAC SAMONTE, defendant-appellant.

Godofredo Reyes, for appellant. Attorney-General Villamor, for appellee.

TRENT, J.:

The defendant, Isaac Samonte, was tried in the Court of First Instance of the Province of Tayabas on a charge of criminal attempt against an agent of the authorities, and sentenced to one year eight months and twenty-one days of prision correctional, to pay a fine of P65, in case of insolvency to suffer the corresponding subsidiary imprisonment, to the accessory penalties provided in article 61 of the Penal Code, and to pay the costs. He appealed to this court.

Counsel for appellant insists, first, that the prosecution has failed to establish beyond a reasonable doubt that the policeman, Gregorio Glindo, attempted to arrest the accused in Verdales Street, the place where the trouble occurred; and, second that if said policeman did attempt to arrest the defendant at this place he, not having a judicial warrant, was not, under the circumstances, authorized to make the arrest which he attempted to make.

About 8 o'clock on the night of September 6, 1908, the appellant, Isaac Samonte, and Basilio Rabe were together in the house of one Demetrio Pandeñio in the barrio of Macalalong, jurisdiction of Pitogo, Province of Tayabas. They both left the house and met shortly afterwards in the street (Verdades) in said barrio. On meeting there they became engaged in a quarrel, the appellant knocking or pushing Rabe down, then proceeded to maltreat him. At this moment Rabe called "police! police!" Gregorio Glindo, a municipal policeman of Pitogo, being a patrol duty that night in said barrio, hearing these words went to the scene, arriving just as the offended party was getting up, and attempted to arrest the appellant, saying to him: "In the name of the United States, don't move." The appellant, on seeing the policeman and hearing this command, said: Don't come near, because I will take your life." The policeman continued toward the appellant and when very near him the appellant struck at the policeman with a knife. On account of this resistance the policeman could not arrest the appellant at that time, so he went immediately to the house of the councilman of that barrio, Demetrio Pandenio, and reported the matter. Pandenio ordered him to arrest the appellant. He returned to obey this order, being followed by Pandenio. They found the appellant in a place called Mutingbayan. The policeman attempted to take hold of the appellant, but he resisted, striking at the policeman again with his knife. The councilman then ordered the appellant to submit himself, and on receiving this order the appellant said: "I do not recognize anyone," and struck at the councilman with the knife.

The appellant was not arrested on that night on account of this resistance. He did not lay hands on to touch with his knife either the policeman or the councilman, but he did refuse to submit himself to the authorities, and resisted arrest. The policeman did not see the appellant knock the priest down, neither did he see him kick the said priest, but we heard the cries of the priest calling for help, saying "police! police!" and when he arrived on the scene the priest was getting up and freeing himself from the appellant. When the policeman heard these cries for help he was only a very short distance — some 6 or 8 brazas — away, and when arrived the trouble had not terminated, although no active fighting took place after his arrival. Under these facts and circumstances it was the duty if this police officer to stop this disturbance by placing the defendant under arrest.

Any officer in charged with the preservation of the public peace may arrest, without a warrant, any person who is committing, or has committed, a breach of the peace in his presence. (3 Cyc., 881; Carolina vs. McAfee, 10 L. R. A., 607; Commonwealth vs. Tobin, 11 Am., Rep., 375; People vs. Rounds, 35 N. W., 77; Douglas vs. Barber, 28 Atl. Rep., 805.)

An offense is committed in the presence or within the view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or hears the disturbances created thereby and proceeds at once to the scene thereof; of the offense is continuing, or has not been consummated, at the time the arrest is made. (3 Cyc., 886; Ramseyvs. State, 17 S. E., 613; Dilger vs. Com., 11 S. W., 651; State vs. McAfee, 12 S. E., 435; State vs. Williams, 15 S. E., 554; and Hawkins vs. Lutton, 70 N. W., 483.)

In the case at bar Gregorio Glindo, being a peace officer, not only had authority to arrest the defendant at that time, but it was his duty to do so, he having heard the priest call for help and having arrived on the scene before the disturbance had finally ended.

Article 249 of the Penal Code provides that the following commit criminal attempt: xxx xxx xxx

2. Those who attack the authorities or their agents or employ force against them, or gravely intimidate them, or offer an equally grave resistance while they are discharging the functions of their office or on the occasion thereof.

Article 250 of the same code fixes the penalty to be imposed for those guilty of an attempt against the authorities or their agents, as provided in the above article.

The accused in this case, after an attempt had been made to arrest him by duly authorized police officer in the discharge of his duty a such, offered grave resistance by refusing to submit himself to arrest and by striking at the policeman with a knife, thereby attempting to a personal injury. Although the policeman was not wounded or touched by the accused, these facts do not receive him from criminal responsibility. The penalty imposed by the court below being in accordance with the law and the proofs presented, the same is hereby affirmed, with costs against the appellant. So ordered.

PEOPLE OF THE G.R. No. 178039 PHILIPPINES,

Plaintiff-Appellee, Present:

CORONA, C.J.,

Chairperson

VELASCO, JR.,

LEONARDO-DE CASTRO, -versus- DEL CASTILLO, and

PEREZ, JJ.

Promulgated: ERNESTO UYBOCO y RAMOS,

Defendant-Appellant. January 19, 2011

x------x

D E C I S I O N

PEREZ, J.:

Subject of this appeal is the 27 September 2006 Decision[1] promulgated by the Court of Appeals, affirming the Regional Trial Court’s (RTC) Judgment[2] in Criminal Case Nos. 93-130980, 93-132606, and 93-132607, finding Ernesto Uyboco y Ramos (appellant) guilty of three (3) counts of kidnapping for ransom.

Appellant, along with now deceased Colonel Wilfredo Macias (Macias) and several John Does were charged in three separate Informations, which read as follow:

In Criminal Case No. 93-130980:

That in the morning of December 20, 1993 and for sometime subsequent thereto in Manila and within the jurisdiction of this Honorable Court, the above- named accused, conspiring, confederating and mutually helping one another, did then and there willfully, unlawfully and feloniously kidnap, carry away and detain the minor, JESON KEVIN DICHAVES, five (5) years old, against his will and consent, thus depriving him of his liberty, for the purpose of extorting ransom for his release, which after payment thereof in the amount ofP1,320,000.00 in cash and P175,000.00 worth of assorted jewelry, including a Colt .45 Caliber Pistol with SN 14836 or a total of ONE MILLION FIVE HUNDRED THOUSAND PESOS (P1,500,000.00) was divided by said accused between and/or among themselves to the damage and prejudice of the aforementioned victim/or his parents.[3]

In Criminal Case No. 93-132606:

That in the morning of December 20, 1993 and for sometime subsequent thereto in Manila and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, did then and there willfully, unlawfully and feloniously kidnap, carry away and detain the minor, JESON KIRBY DICHAVES, two (2) years old, against his will and consent, thus depriving him of his liberty, for the purpose of extorting ransom for his release, which after payment thereof in the amount ofP1,320,000.00 in cash and P175,000.00 worth of assorted jewelry, including a Colt .45 Caliber Pistol with SN 14836 or a total of ONE MILLION FIVE HUNDRED THOUSAND PESOS (P1,500,000.00) was divided by said accused between and/or among themselves to the damage and prejudice of the aforementioned victim/or his parents.[4]

In Criminal Case No. 93-132607:

That in the morning of December 20, 1993 and for sometime subsequent thereto in Manila and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, did then and there willfully, unlawfully and feloniously kidnap, carry away and detain NIMFA CELIZ, against her will and consent, thus depriving her of liberty, for the purpose of extorting ransom for her release, which after payment thereof in the amount of P1,320,000.00 in cash and P175,000.00 worth of assorted jewelry, including a Colt .45 Caliber Pistol with SN 14836 or a total of ONE MILLION FIVE HUNDRED THOUSAND PESOS (P1,500,000.00) was divided by said accused between and/or among themselves to the damage and prejudice of the aforementioned victim.[5]

The arraignment was held in abeyance twice.[6] Finally, the arraignment was set on 22 October 1996. Appellant and Macias, with the assistance of their counsels, however refused to enter a plea. This prompted the RTC to enter a plea of “Not Guilty” for each of them. Trial on the merits ensued.

The prosecution presented the following witnesses: Nimfa Celiz (Nimfa), Jepson Dichaves (Jepson), Police Superintendent Gilbert Cruz (P/Supt. Cruz), Police Superintendent Mario Chan (P/Supt. Chan), Police Inspector Cesar Escandor (P/Insp. Escandor) and Carolina Alejo, whose version of facts are summarized as follows:

At around 10:30 a.m. on 20 December 1993, Nimfa and her wards, siblings Jeson Kevin and Jeson Kirby Dichaves were riding in the Isuzu car of the Dichaves family, together with Yusan Dichaves (Yusan). Driver Pepito Acon (Acon) dropped off Yusan at Metrobank in Claro M. Recto Avenue, Manila. While waiting for Yusan, Acon drove along Bilibid Viejo, Sampaloc. When the vehicle passed by in front of San Sebastian Church, a stainless jeep with two men and one woman described as a tomboyon board, suddenly blocked its way. One of the men, who was in police uniform accosted Acon and accused him of hitting the son of a Presidential Security Group (PSG) General apparently with a stone when the vehicle ran over it. Acon denied the charges but he was transferred to the stainless jeep while the man in police uniform drove the Isuzu car. The tomboy sat next to Nimfa who then had Jeson Kirby sit on her lap while Jeson Kevin was sitting on the tomboy’s lap. They were brought to a house in Merville Subdivision, Parañaque.[7]

While still in garage of the house, Nimfa was able to sneak out of the car and place a call to the secretary of her employer to inform the latter that they were in Merville Subdivision. She came back to the car undetected and after a while, she and her wards were asked to alight from the car and they were locked inside the comfort room.[8]

Jepson was at his office at 10:00 a.m. of 20 December 1993. He received a call from his wife asking him if Nimfa or Acon called up, as she had been waiting for them at Metrobank where she was dropped off earlier. After 15 minutes, Yusan called again and was already hysterical because she could not find the car when she roamed around the area. Jepson immediately called up his brother Jaime and some police officers to inform them that his sons were missing. When Jepson arrived at Metrobank at around 11:30 a.m., he received a call from his secretary informing him that Nimfa called about their whereabouts. When Jepson got back to his office, his secretary informed him that an unidentified man called to inform them that he has custody of the children and demanded P26 Million.[9]

Meanwhile in Merville Subdivision, the man in police uniform introduced himself to Nimfa as Sarge. He asked Nimfa for information regarding her name and her employer’s telephone number. She feigned ignorance of those information. She even claimed that she was merely a new employee.[10] Sarge informed Nimfa that they were in Fairview and that she was asked if she knew how to go home. Nimfa chose to stay with her wards. When the phone rang, Sarge went out of the house and Nimfa again sneaked a phone call to her employer informing them that they were being held up in Merville Subdivision.[11]

Jepson, through Jaime’s help, went to the house of then Vice-President Joseph Estrada (Vice-President Estrada) at 8:00 p.m. Thereat, he met General Jewel Canson (Gen. Canson), General Panfilo Lacson (Gen. Lacson) and Major Ray Aquino (Major Aquino). Vice-President Estrada ordered the police generals to rescue Jepson’s sons and arrest the kidnappers.[12]

At 6:00 p.m., the kidnappers called Jepson and reduced the ransom to P10 Million. [13] That night, Nimfa was able to speak to Jepson when two men handed the telephone to her. She recognized one of them as appellant, because she had seen the latter in her employer’s office sometime in the first week of December 1993.[14]

On the following noon of 21 December 1993, the kidnappers called up Jepson numerous times to negotiate for the ransom. In one of those calls, Jepson was able to recognize the voice of appellant because he had several business transactions with the latter and they have talked for at least a hundred times during a span of two to four years.[15]

On 22 December 1993, the parties finally agreed to a ransom of P1.5 Million. Jepson offered P1.3 Million in cash and the balance to be paid in kind, such as jewelry and a pistol.[16] Appellant asked Jepson to bring the ransom alone at Pancake House in Magallanes Commercial Center. Jepson called up Gen. Canson and Gen. Lacson to inform them of the pay-off.[17]

At around 1:00 p.m. of even date, Nimfa was able to talk to Jepson and the latter informed her that they would be released that afternoon.[18] At 3:00 p.m., Jepson drove his white Toyota Corolla car and proceeded to Pancake House in Magallanes Commercial Center. He placed the money inside a gray bag and put it on the backseat. Jepson received a call from appellant at 4:00 p.m. who ordered him to put the bag in the trunk, leave the trunk unlocked, and walk away for ten (10) minutes without turning back. Later, appellant checked on his trunk and the bag was already gone. Appellant then apprised him that his sons and helper were already at the Shell Gasoline Station along South Luzon Expressway. He immediately went to the place and found his sons and helper seated at the corner of the gas station.[19]

P/Insp. Escandor was assigned to proceed to Magallanes Commercial Center, together with two other police officers. They reached the place at 3:30 p.m. and positioned themselves in front of the Maranao Arcade located at Magallanes Commercial Center. He brought a camera to cover the supposed pay-off. He took a total of 24 shots.[20] He identified Macias together with appellant in Magallanes Commercial Center and the latter as the one who took the ransom.[21]

P/Supt. Chan was one of the team leaders dispatched also at Magallanes Commercial Center in Makati on 22 December 1993 to take a video coverage on the supposed pay-off. He witnessed the pay-off and identified appellant as the one who took the bag containing the ransom money from the car trunk of Jepson.[22]

P/Supt. Cruz is assigned to the now defunct Presidential Anti-Crime Commission Task Force Habagat and one of the team leaders of Special Project Task Force organized on 22 December 1993 with the primary task of apprehending the kidnappers of Dichaves’ children and helper. His group was assigned at Fort Bonifacio to await instructions from the overall Field Command Officer Gen. Lacson. They had been waiting from 4:00 p.m. until 6:00 p.m. when they received information that the kidnap victims were released unharmed. They were further asked to maintain their position in Fort Bonifacio. At around 7:45 p.m., they heard on their radio that the suspect’s vehicle, a red Nissan Sentra was heading in their direction. A few minutes later, they saw the red car and tailed it until it reached Dasmariñas Village in Makati. They continuously followed the car inside the village. When said car slowed down, they blocked it and immediately approached the vehicle.[23]

They introduced themselves as police officers and accosted the suspect, who turned out to be appellant. Appellant suddenly pulled a .38 caliber revolver and a scuffle took place. They managed to subdue appellant and handcuffed him. Appellant was requested to open the compartment and a gray bag was found inside. P/Supt. Cruz saw money, jewelry and a gun inside the bag. Appellant was then brought to Camp Crame for questioning.[24]

At 8:00 p.m., Jepson received a call from Gen. Lacson asking him to go to Camp Crame. He and Nimfa went to Camp Crame where he saw appellant alone in the office of Gen. Canson. He then saw the bag containing the ransom money, pieces of jewelry and his gun on the table. Photographs were taken and Jepson was asked to identify them.[25]

A written inventory was prepared on the contents of the bag.[26] It was found out that a portion of the ransom money was missing. It was then that appellant revealed that the missing money was in the possession of Macias. Appellant accompanied P/Supt. Cruz and his team to the residence of Macias in Camp Aguinaldo. P/Supt. Cruz waited for Macias until 4:00 a.m. on the following day and placed him under arrest. Macias was asked where the rest of the ransom money was and Macias went inside the house and retrieved a red bag inside a small cabinet. P/Supt. Cruz prepared a receipt of the seized property from Macias. Macias placed his signature on the receipt.[27]

Carolina Alejo was the owner of the house in Merville Subdivision where the kidnap victims were detained. She stated that she leased the house to appellant. On 23 December 1993, it came to her knowledge that said house was used in the kidnapping. She noticed that the lock of the comfort room was reversed so that it could only be locked from the outside. She considered this unusual because she personally caused the door knob to be installed.[28]

The defense, on its part, presented appellant, Florinda Sese Barcelona (Ms. Sese), Dr. Jaime Leal (Dr. Leal), and retired Colonel Ramon Navarro (Col. Navarro).

Appellant testified that he came to know Jepson when he was introduced to him by Col. Navarro in 1989 as the importer of police equipment and accessories. Jepson wanted to buy revolving lights, police sirens and paging system. Through Navarro, appellant also met Macias who was then selling his security agency in July 1993. He admitted that Jepson had been lending him money since 1990 and his total borrowings amounted to P8.5 Million in December 1993. Appellant also knew Nimfa since 1990 and had met her five (5) times in the office of Jepson where Nimfa usually served him coffee.[29]

In December 1993, he rented a house in Merville Subdivision for his mother. He was given the key to the house in 15 December 1993 but he denied going to said place on 20, 21, 22, 23 of December 1993.

At 3:00 p.m. of 20 December 1993, he received a call from Jepson asking for P1 Million, as partial payment of his loan. Jepson informed appellant that his sons were kidnapped and he requested appellant to negotiate with the kidnappers for the release of his children. Out of pity, appellant agreed. He actively participated in the negotiations between 20 to 22 of December 1993, where he successfully negotiated a lower ransom of P1.5 Million.

On 11:30 a.m. of 22 December 1993, Jepson again requested appellant to deliver the ransom money to the kidnappers. Appellant acceded to the request. He asked Macias, who was in his office that day, to accompany him. The kidnappers asked appellant to proceed to the Makati area and wait for further instructions. Appellant called up Jepson who told him that he would deliver the money to appellant once instructions were given by the kidnappers. The kidnappers finally called and asked appellant to proceed to Shell Gasoline Station-Magallanes. He informed Jepson of this fact and the latter asked appellant to meet him in Magallanes Commercial Center where he would just put the money inside the car trunk and leave it unlocked. Appellant took the money from Jepson’s car and put it inside his car trunk and proceeded to Shell Gasoline station.[30] Appellant and Macias did not see the kidnappers and Jepson’s children at the station. He tried calling Jepson but failed to communicate with him. They then decided to go back to the office in Cubao, Quezon City. At 7:00 p.m., he received a call from the kidnappers who were cursing him because they apparently went to the Shell Gasoline Station and noticed that there were many policemen stationed in the area, which prompted them to release the victims. Appellant left his office at around 7:20 p.m. to go home in Dasmariñas Village, Makati. When he was about ten (10) meters away from the gate of his house, a car blocked his path. He saw P/Supt. Cruz, a certain Lt. Rodica and two other men alight from the car and were heavily armed. They pulled him out of the car and hit him with their firearms.[31]

Ms. Sese was at the office of appellant on 22 December 1993 when she was told by the secretary, who appeared shaken, that a caller was looking for appellant. She saw appellant arrive at the office with Macias.[32]

Dr. Leal, the medico-legal officer at Philippine National Police (PNP) Crime Laboratory, presented the medico-legal certificate of appellant and testified that the injuries of appellant could have been sustained during the scuffle.[33]

Col. Navarro introduced appellant to Jepson. He was privy to the loan transactions between appellant and Jepson where the former asked loans from the latter. He even served as guarantor of some of the obligations of appellant. When the checks issued by appellant were dishonored by the bank, Jepson filed a case against Navarro for violation of Batas Pambansa Blg. 22, wherein the latter was eventually acquitted.[34]

While the criminal cases were undergoing trial, Macias died. Consequently, his criminal liability is totally extinguished under Article 89, paragraph 1 of the Revised Penal Code.[35]

On 30 August 2002, the RTC rendered judgment finding appellant guilty beyond reasonable doubt of the crime of kidnapping for ransom. The dispositive portion reads:

WHEREFORE, premises considered herein accused Ernesto Ramos Uyboco is hereby found guilty beyond reasonable doubt of the crime of Kidnapping for Ransom penalized by Article 267 of the Revised Penal Code, as amended by R.A. 1084. He is hereby ordered to suffer the prison term of reclusion perpetua for three (3) counts together with the accessory penalties provided by law. He should pay private complainant Jepson Dichaves the amount of P150,000.00 as moral damages.

The above-described .45 Caliber Colt Pistol and 12-gauge Remington shotgun as well as the Nissan Sentra 4-Door Sedan are hereby confiscated in favor of the government.

The Warden of Metro Manila Rehabilitation Center, Camp Ricardo R. Papa, Bicutan, Taguig, Metro Manila is hereby ordered to immediately transfer the said accused to the Bureau of Corrections, National Bilibid Prison, Muntinlupa City. The Jail Director of said bureau is ordered to inform this court in writing soonest as to when the said official took custody of the accused.[36]

The trial court held that the prosecution had established with the required quantum of evidence that the elements of kidnapping for ransom were present and that appellant was the author of said crime.

Appellant filed a notice of appeal to the Supreme Court. Conformably to People v. Mateo,[37] this Court in a Resolution dated 6 September 2004, referred the case to the Court of Appeals for appropriate action and disposition.[38]

On 27 September 2006, the Court of Appeals affirmed in toto the Decision of the RTC, the dispositive portion of which reads:

WHEREFORE, the August 30, 2002 Decision of the Regional Trial Court, national Capital Judicial Region, Br. 18, Manila, in Criminal Cases Nos. 93-130980, 93-132606, and 93-132607, in convicting Ernesto Uyboco of three (3) counts of Kidnapping for Ransom is hereby AFFIRMED in toto. No costs.[39]

A motion for reconsideration was filed by appellant but the same was denied in a Resolution dated 22 December 2006. Hence, this appeal.

On 3 September 2007, this Court required the parties to file their respective supplemental briefs. On 25 October 2007, appellant’s counsel filed a withdrawal of appearance. Appellee manifested that it is no longer filing a Supplemental Brief. [40] Meanwhile, this Court appointed the Public Attorney’s Office as counsel de oficio for appellant. Appellee also filed a manifestation that it is merely adopting all the arguments in the appellant’s brief submitted before the Court of Appeals.[41]

Appellant prays for a reversal of his conviction on three (3) counts of kidnapping for ransom based on the following assignment of errors:

I. THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE DISTURBING WHISPERS OF DOUBT REPLETE IN THE PROSECUTION’S THEORY.

II. THE TRIAL COURT ERRED IN GIVING CREDENCE TO NIMFA CELIZ’ TESTIMONY NOTWITHSTANDING THE INCREDIBILITY OF HER STORY.

III. THE TRIAL COURT ERRED IN PRESUMING REGULARITY IN THE PERFORMANCE OF OFFICIAL FUNCTIONS OVER THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE OF THE ACCUSED UYBOCO.

IV. THE TRIAL COURT ERRED IN ADMITTING THE TESTIMONY OF JEPSON DICHAVEZ NOTWITHSTANDING HIS DISPLAYED PROPENSITY FOR UNTRUTHFULNESS.

V. THE TRIAL COURT ERRED IN ADMITTING MOST OF THE OBJECT EVIDENCE PRESENTED AGAINST THE ACCUSED-APPELLANT SINCE THEY WERE PROCURED IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS.

VI. THE TRIAL COURT ERRED IN FINDING OF FACT THAT THE MERVILLE PROPERTY LEASED BY ACCUSED-APPELLANT FROM MS. CAROLINA ALEJO WAS THE VERY SAME HOUSE WHERE NIMFA CELIZ AND HER WARDS WERE ALLEGEDLY DETAINED.

VII. THE TRIAL COURT ERRED IN HOLDING THAT ACCUSED UYBOCO AS HAVING PARTICIPATED IN THE ABDUCTION OF JESON KEVIN, JESON KIRBY, AND NIMFA CELIZ AS NOT A SINGLE EVIDENCE ON RECORD SUPPORTS THE SAME.

VIII. THE TRIAL COURT ERRED IN NOT ACQUITTING THE ACCUSED CONSIDERING THAT ABDUCTION, AN IMPORTANT ELEMENT OF THE CRIME, WAS NEVER ESTABLISHED AGAINST HIM.

IX. THE TRIAL COURT ERRED IN HOLDING THE ACCUSED GUILTY OF KIDNAPPING FOR RANSOM WITHOUT DISCUSSING THE PARTICIPATION OF ACCUSED MACIAS CONSIDERING THAT THE CHARGE WAS FOR CONSPIRACY.[42]

The ultimate issue in every criminal case is whether appellant’s guilt has been proven beyond reasonable doubt. Guided by the law and jurisprudential precepts, this Court is unerringly led to resolve this issue in the affirmative, as we shall hereinafter discuss.

In order for the accused to be convicted of kidnapping and serious illegal detention under Article 267 of the Revised Penal Code, the prosecution is burdened to prove beyond reasonable doubt all the elements of the crime, namely: (1) the offender is a private individual; (2) he kidnaps or detains another, or in any manner deprives the latter of his liberty; (3) the act of detention or kidnapping must be illegal; and (4) in the commission of the offense any of the following circumstances is present: (a) the kidnapping or detention lasts for more than three days; (b) it is committed by simulating public authority; (c) serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (d) the person kidnapped and kept in detained is a minor, the duration of his detention is immaterial. Likewise, if the victim is kidnapped and illegally detained for the purpose of extorting ransom, the duration of his detention is immaterial.[43]

We are in full accord with the findings of the trial court that these elements were proven by the prosecution, thus:

1) Accused Uyboco is a private individual; 2) Accused Uyboco together with the unidentified persons/companions of accused Uyboco, referred to as John Does, forcibly abducted the two sons of private complainant Jepson Dichaves, namely: then five-year-old Jeson Kevin and two-year old Jeson Kirby as well as their maid or “yaya” Nimfa Celiz. Their abduction occurred at about 10:30 in the morning of December 20, 1993. The three victims were on board Jepson’s Isuzu pick-up driven by Jepson’s driver Pepito Acon. The moving pick-up was in front of San Sebastian Church, Legarda, Manila when its path was blocked by a stainless jeep. A man in white t-shirt and brown vest accosted driver Pepito for having allegedly ran over a stone that hit a son of a general working at the Presidential Security Group. Pepito was made to ride in a jeep. The same man drove the pick-up to a house in Merville Subdivision, Paranaque, Metro Manila, where the victims were illegally detained from December 20 to 23, 1993.

x x x x

3) The act of the detention or kidnapping of the three victims was indubitably illegal. Their detention was not ordered by any competent authority but by the private individual whose mind and heart were focused to illegally amassed huge amount of money thru force and coercion for personal gain;

x x x x

5) Both accused Uyboco and Macias had successfully extorted ransom by compelling the parents of the minors to give in to their unreasonable demands to get the huge amount of money, a gun, and pieces of jewelry x x x.[44]

These facts were based on the narrations of the prosecution’s witnesses, particularly that of Nimfa, the victim herself and Jepson, the father of the two children abducted and the person from whom ransom was extorted.

Nimfa recounted how she and her wards were abducted in the morning of 20 December 2003 and detained in a house in Merville Subdivision, Parañaque, thus:

A: When we arrived at the office after awhile we boarded the pick-up and then we left, Sir. x x x x

A: Those who boarded the pick-up, the driver Pepito Acon, Mrs. Yusan Dichavez, the two (2) children and myself, Sir. x x x x

A: We proceeded to Metrobank Recto, Sir. x x x x

Q: And when you stopped there, what happened?

A: Mrs. Yusan Dichavez alighted in order to cross the street to go to Metrobank, Sir.

Q: And then what followed next?

A: The driver, Jeson Kirvy, Jeson Kervin and myself made a right turn and we entered an alley, Sir. x x x x

Q: Before reaching Legarda, do you know of any untowards incident that happened?

A: Yes, sir.

ATTY. PAMARAN:

Q: What?

A: When we were already in front of the San Sebastian Church and Sta. Rita College there was a stainless jeep that block our path, Sir.

Q: How many persons were inside that stainless jeep, if you know?

A: I have not notice, but there were many, Sir.

Q: How did that stainless jeep stop your vehicle?

A: Our driver Pepito Acon was signaled by the persons on the stainless jeep to stay on the side, sir.

Q: What did your driver Pepito Acon do when the sign was made to him?

A: The driver stopped the pick-up and set on the side, Sir.

Q: And then what followed next after he stopped? x x x x

A: The man told us that we will be brought to the precinct because when we then make a turn at Kentucky a stone was ran and hit the son of the General of PSG from Malacañang, Sir. x x x x

Q: What did Pepito Acon do? When told to alight?

A: Pepito Acon alighted, Sir.

Q: Then what followed next?

A: After that Pepito alighted and the man who came from the stainless jeep boarded and he was the one who drove, Sir. x x x x

A: When that man boarded the pick-up there was a T-bird who also boarded on the passenger’s side, Sir. x x x x

Q: When you entered the gate of Merville Subdivision, where did you proceed?

A: When we entered the gate there was a street which I do not know and when we went straight as to my estimate we were going back to the main gate, Sir. x x x x

A: The pick-up stopped in front of a low house near the gate, Sir.

Q: When you stopped in front of the gate, that house which is low, what happened?

A: The tomboy alighted and opened the gate of that low house, Sir.

Q: What followed next after the tomboy opened the gate?

A: After the tomboy opened the gate, the driver entered the pick-up inside, Sir. x x x x

Q: And when you entered the house, what happened?

A: When we entered the house we were confined at the comfort room, Sir.[45]

Jepson gave an account how appellant demanded ransom from him and eventually got hold of the money, thus:

A: Then Macias offered the release of the two (2) boys for 1.5 Million each, Sir.

A: Then I started begging and bargaining with them and then suddenly Uyboco was again the one continuing the conversation, Sir.

Q: What did you say?

A: After some bargaining and beggings he reduced the demand to 1.7 million, and he asked for my wife to talk to because according to him I was very hard to talk too, Sir.

ATTY. PAMARAN:

Q: You said he, to whom are you referring?

A: To Mr. Uyboco, Sir.

Q: What followed?

A: After some more bargaining and begins he further reduced their demand to1.5 million x x x.

x x x x

Q: And after that what followed?

A: I offered them to fill up the different (sic) in kind, Sir.

Q: Why to offer the different (sic) in kind?

A: To fill up the different (sic) between 1.3 million to 1.5 million, Sir.

Q: So in short, how much cash did you offer?

A: I offered it for 1.3 million, Sir.

Q: How about the different (sic), what will it be?

A: At this point, he asked me to include my gun, Sir.

Q: How about the other balance?

A: My jewelry, Sir.[46]

x x x x

Q: And what did you do after you were in possession of the money, the jewelries, the gun and the bag?

A: I returned to my office and put the cash in the bag.

Q: In short, what were those inside the bag?

A: The P1.325 million money, the gun and the assorted jewelries.

Q: And after placing them inside the bag, what happened?

A: I left my office at 3:00 PM to proceed to the Pancake House at the

Magallanes Commercial Center.

Q: Where did you place that bag?

A: That bag, at that time, was placed at the back seat when I was going to the Pancake House.

x x x x

Q: What else did he tell you?

A: x x x He told me to put the ransom bag x x x inside my trunk compartment, leave it and lock the car, and walk away without looking back for ten (10) minutes.

Q: After that instruction, what happened, or what did you do?

A: After few minutes, he called again. He told me to drive and park the car beside the car Mitsubishi Colt Mirage with Plate NO. NRZ-863.

Q: Did he tell you where was that Colt Mirage car parked?

A: Yes, in front of the Mercury Drug Store.

Q: And then, what did you do?

A: I followed his instruction.

Q: And what followed next?

A: After few more minutes, he called again and asked if I am in front of the Mercury Drug Store already.

Q: And what was your answer?

A: I told him yes and he again gave me the final arrangement, but he uttered I walk back towards the Pancake House without looking back for ten (10) minutes.

Q: And?

A: And informing me the whereabouts of my sons.

ATTY. PAMARAN:

Q: Did you comply with that instruction?

A: Yes, sir.

Q: What did you do?

A: I walked towards the Pancake House without looking back for more than ten (10) minutes.

Q: That car that you parked near the Mitsubishi Colt, how far was your car the parked form that Colt Mirage?

A: Beside the Colt Mirage, Sir.

Q: And after you parked the car, what followed?

A: I walked towards the Pancake House without looking back and then I turned to the back of the supermarket and I checked my trunk and saw that the bag is gone already.

Q: And what followed thereafter?

A: A few minutes, Uyboco called up and told me that my sons were at the shell station after the Magallanes Commercial Center inside theBibingkahan.[47]

Now, appellant seeks to destroy the credibility of these witnesses by imputing inconsistencies, untruthfulness and incredibility in their testimonies.

Appellant harps on the supposed inconsistencies in the testimony of Nimfa, namely: First, Nimfa stated that on the day they were to be released, they, together with Macias, left Merville Subdivision at 4:00 p.m. while appellant stayed behind. However, P/Insp. Escandor testified that at around 4:00 p.m., he saw Macias and appellant at Magallanes Commercial Center. Second, Nimfa could not properly identify the number of kidnappers. Third, Nimfa failed to state in her affidavit and during the direct examination that Sarge had a gun, but later on cross- examination, she intimated that Sarge had a gun. Fourth, it was incredible that Nimfa was able to identify the route taken by the kidnappers to the safe house because she was not allegedly blindfolded. Fifth, it was strange for Nimfa to say that two persons, Macias and appellant, were holding the receiver and the dialing mechanism whenever they hand the phone to her. Sixth, it was impossible for Nimfa to have access to an operational telephone while in captivity.[48] The Court of Appeals correctly dismissed these inconsistencies as immaterial, in this wise:

The purported inconsistencies and discrepancies involve estimations of time or number; hence, the reference thereto would understandably vary. The rule is that inconsistencies in the testimonies of prosecution witnesses on minor details and collateral matters do not affect the substance of their declaration, their veracity or the weight of their testimonies. The inconsistencies and discrepancies of the testimonies, in the case at bar, are not of such nature as would warrant the reversal of the decision appealed from. On the contrary, such trivial inconsistencies strengthen, rather than diminish, Celiz’ testimony as they erase suspicion that the same was rehearsed.

The fact that Uyboco and his companions neither donned masks to hide their faces nor blindfolded or tied up their victims goes to show their brazenness in perpetrating the crime. Besides, familiarity with the victims or their families has never rendered the commission of the crime improbable, but has in fact at times even facilitated its commission. Moreover, the fact that there was a usable phone in the house where Celiz and the kids were held captive only proves that, in this real world, mistakes or blunders are made and there is no such thing as a perfect crime. On a different view, it may even be posited that the incredible happenings narrated by Celiz only highlights the brilliance of Uyboco and his companions. Verily, in committing the crime of kidnapping with ransom, they adopted and pursued unfamiliar strategies to confuse the police authorities, the victim, and the family of the victims.[49]

Appellant then zeroes in on Jepson and accuses him of lying under oath when he claimed that appellant owed him only P2.3 Million when in fact, appellant owed him P8.5 Million. Appellant charges Jepson of downplaying his closeness to him when in fact they had several business deals and Jepson would address appellant as “Ernie.” Moreover, it was unbelievable for Jepson to be able to identify with utmost certainty that the kidnapper he was supposedly talking to was appellant. Finally, appellant claims that Jepson’s motive to maliciously impute a false kidnapping charge against him boils down to money. Among the businesses that Jepson owns was along the same line of business as that of appellant, which is the supply of police equipment to the PNP. To eliminate competition and possibly procure all contracts from the PNP and considering his brother’s close association to then Vice- President Estrada, Jepson crafted and executed a frame up of appellant.

And the Court of Appeals had this to say:

For one, the strategy used, which is the use of unconventional or not so commonly used strategy, to apprehend the kidnappers of Celiz and the Dichaves’ children is, by reason of their special knowledge and expertise, the police operatives’ call or prerogative. Accordingly, in the absence of any evidence that said agents falsely testified against Uyboco, We shall presume regularity in their performance of official duties and disregard Uyboco’s unsubstantiated claim that he was framed up.

Secondly, matters of presentation of witnesses by the prosecution and the determination of which evidence to present are not for Uyboco or even the trial court to decide, but the same rests upon the prosecution. This is so since Section 5, Rule 110 of the Revised Rules of Court expressly vests in the prosecution the direction and control over the prosecution of a case. As the prosecution had other witnesses who it believes could sufficiently prove the case against Uyboco, its non- presentation of other witnesses cannot be taken against the same.[50]

Time and again, this court has invariably viewed the defense of frame-up with disfavor. Like the defense of alibi, it can be just as easily concocted.[51]

We are inclined to accord due weight and respect to the ruling of the lower courts in giving credence to the positive testimonies of Nimfa and Jepson, both pointing to appellant as one of the kidnappers. Both witnesses testified in a clear and categorical manner, unfazed by efforts of the defense to discredit them. As a rule, the assessment of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court, which had a unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct and attitude.[52] While it is true that the trial judge who conducted the hearing would be in a better position to ascertain the truth or falsity of the testimonies of the witnesses, it does not necessarily follow that a judge who was not present during the trial, as in this case, cannot render a valid and just decision, since the latter can very well rely on the transcribed stenographic notes taken during the trial as the basis of his decision.[53]

Appellant raises questions which purportedly tend to instill doubt on the prosecution’s theory, thus:

If Uyboco is really the mastermind of the kidnapping syndicate, why would he demand only P1.325M x x x as ransom? Why would he be the one to personally pick-up the ransom money using his own car registered in his son’s name? Why did he not open the bag containing the ransom to check its contents? Why would he be the one to personally hand the phone to Nimfa Celiz without any mask covering his face x x x. Why would he go back to his family residence x x x with the ransom money still intact in the trunk of his car?

If Nimfa Celiz and her wards were indeed kidnapped, why were they not blindfolded x x x? Why were they not tied x x x?

x x x x

If it is true that the house at Merville, Parañaque was used by accused-appellant Uyboco as the place of the alleged detention x x x how come Uyboco signed the lease contract under his own name? x x x Certainly, any person with the education attainment of at least high school degree, much more so an established businessman like accused-appellant would know that the lease contract and the post-dated checks are incriminating evidence.

x x x (h)ow come no effort was exerted in apprehending Uyboco during day 1 of the kidnapping? x x x Why is their story focused only on the day of the ransom payment? Why did they not apply for a warrant of arrest against accused-appellant Uyboco when they supposedly knew that from day 1, he was the kidnapper?

Why were there no tapes presented in evidence which recorded the conversations between the kidnappers x x x.[54]

Furthermore, appellant stresses that his financial status as an established and well- off businessman negates any motive on his part to resort to kidnapping.

If we indulge appellant’s speculations, we could readily provide for the answers to all these questions – that appellant originally demanded P26 Million but this had been substantially reduced due to aggressive bargaining and negotiations; that appellant personally picked up the ransom money because he could not trust anybody to do the work for him; that appellant did not open the bag containing the money because he trusted Jepson, who then out of fear, would deliver as instructed; that appellant did not cover his face in front of Nimfa because he thought Nimfa would not recognize him; that appellant went back to his family residence because he never thought that Jepson would recognize him as the voice behind one of the kidnappers; that the victims were not blindfolded or tied because Nimfa, who appeared to be ignorant to the kidnappers and the two children barely 5 years old would be emboldened to escape; that appellant never thought that the police would discover the place of detention; that the police employed a different strategy, which is to first secure the victims before they apprehend the kidnappers; that to secure a warrant would be futile as the police then did not have sufficient evidence to pin down appellant to the crime of kidnapping; that there were no actual record of the telephone conversations between Jepson and the kidnappers.

However, to individually address each and every question would be tantamount to engaging in a battle of endless speculations, which do not have a place in a court of law where proof or hard evidence takes precedence. On the other hand, the prosecution presented testimonies and evidence to prove that kidnapping occurred and that appellant is the author thereof.

Appellant seeks to pierce the presumption of regularity enjoyed by police officers to anchor his argument that he has been framed up. He belittles the efforts of the police officers who participated in the operation. Appellant claims that despite knowledge of the place of alleged detention, the police did not try to rescue the kidnap victims. Appellant also notes that while P/Supt. Chan denies installing any listening device to record the conversations of the kidnappers and Jepson, the interview made by a reporter for a television network shows that Major Aquino admitted to taped conversations of appellant’s alleged negotiations for the ransom with Jepson. Appellant insists that these taped conversations do exist.

Appellant cannot rely on a vague mention of an interview, if it indeed exists, to discredit the testimony of P/Supt. Chan. The truth of the matter is appellant failed to prove the existence of the alleged taped conversations. The matters of failure of the police officer to properly document the alleged pay-off, the non- production of the master copy of the video tape, and the chain of custody supposedly broken are not semblance of neglect so as to debunk the presumption of regularity. In the absence of proof of motive on the part of the police officers to falsely ascribe a serious crime against the accused, the presumption of regularity in the performance of official duty, as well as the trial court's assessment on the credibility of the apprehending officers, shall prevail over the accused's self-serving and uncorroborated claim of frame-up.[55]

Appellant then questions the validity of his arrest and the search conducted inside his car in absence of a warrant. The arrest was validly executed pursuant to Section 5, paragraph (b) of Rule 113 of the Rules of Court, which provides:

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

The second instance of lawful warrantless arrest covered by paragraph (b) cited above necessitates two stringent requirements before a warrantless arrest can be effected: (1) an offense has just been committed; and (2) the person making the arrest has personal knowledge of facts indicating that the person to be arrested has committed it.[56]

Records show that both requirements are present in the instant case. The police officers present in Magallanes Commercial Center were able to witness the pay-off which effectively consummates the crime of kidnapping. They all saw appellant take the money from the car trunk of Jepson. Such knowledge was then relayed to the other police officers stationed in Fort Bonifacio where appellant was expected to pass by.

Personal knowledge of facts must be based on probable cause, which 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. Section 5, Rule 113 of the 1985 Rules on Criminal Procedure does not require the arresting officers to personally witness the commission of the offense with their own eyes.[57]

It is sufficient for the arresting team that they were monitoring the pay-off for a number of hours long enough for them to be informed that it was indeed appellant, who was the kidnapper. This is equivalent to personal knowledge based on probable cause.

Likewise, the search conducted inside the car of appellant was legal because the latter consented to such search as testified by P/Supt. Cruz. Even assuming that appellant did not give his consent for the police to search the car, they can still validly do so by virtue of a search incident to a lawful arrest under Section 13, Rule 126 of the Rules of Court which states:

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

In lawful arrests, it becomes both the duty and the right of the apprehending officers to conduct a warrantless search not only on the person of the suspect, but also in the permissible area within the latter's reach. Otherwise stated, a valid arrest allows the seizure of evidence or dangerous weapons either on the person of the one arrested or within the area of his immediate control. The phrase "within the area of his immediate control" means the area from within which he might gain possession of a weapon or destructible evidence.[58] Therefore, it is only but expected and legally so for the police to search his car as he was driving it when he was arrested.

Appellant avers that it was not proven that appellant was present and in fact participated in the abduction of the victims. Lacking this element, appellant should have been acquitted. In a related argument, appellant contends that conspiracy was not proven in the execution of the crime, therefore, appellant’s participation was not sufficiently established.

The Court of Appeal effectively addressed these issues, to wit:

The prosecution was able to prove that: 1) At the time of the kidnapping, the house where Celiz and the Dichaves’ children were kept was being leased by Uyboco; 2) Uyboco was present in the said house at the time when Celiz and the Dichaves’ children were being kept thereat; 3) there being no evidence to the contrary, Uyboco’s presence in the same is voluntary; 4) that Uyboco has in his possession some of the ransom payment; and, 5) that Uyboco was the one who told them that the balance of the ransom payment is with Macias. All these circumstances clearly point out that Uyboco, together with several unidentified persons, agreed or decided and conspired, to commit kidnapping for ransom.

x x x x

x x x Uyboco’s claim, that since it was not proven that he was one of the passengers of the jeep which waylaid the Dichaves’ vehicle on December 20, 1993, he could not be convicted of kidnapping for ransom considering that his participation, if any, was merely to provide the house where the victims were kept, is misplaced.

Moreover, to Our mind, it is inconceivable that members of a kidnapping syndicate would entrust the performance of an essential and sensitive phase of their criminal scheme, i.e. possession of the ransom payment, to people not in cahoots with them, and who had no knowledge whatsoever of the details of their nefarious plan.[59]

The testimonies of Nimfa and Jepson sufficiently point to the participation of appellant. While he was not present during the abduction, he was present in the house where the victims were detained, oftentimes giving the phone to Nimfa to talk to Jepson. He also actively demanded ransom from Jepson. The conspiracy was likewise proven by the above testimonies. Appellant conspired with Macias and other John Does in committing the crime. Therefore, even with the absence of appellant in the abduction stage, he is still liable for kidnapping for ransom because in conspiracy, the act of one is the act of all.[60]

Based on the foregoing, we sustain appellant’s conviction.

WHEREFORE, the Decision dated 30 August 2002 in Criminal Case Nos. 93-130980, 93-132606, and 93-132607 RTC, Branch 18, Manila, finding Ernesto Uyboco y Ramos guilty of kidnapping for ransom, and the Decision dated 27 September 2006 of the Court of Appeals, affirming in toto the Decision of the RTC, are AFFIRMED.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, G.R. No. 181037

Appellee,

Present:

Ynares-Santiago, J. (Chairperson),

- versus - Carpio,*

Austria-Martinez,

Chico-Nazario, and

Leonardo-De Castro,** JJ.

SAIDAMEN MACATINGAG y NAMRI alias SAI, Promulgated:

Appellant.

January 19, 2009

DECISION

YNARES-SANTIAGO, J.:

For review is the Decision[1] of the Court of Appeals in CA-G.R. CR-HC No. 01487, which affirmed in toto the June 16, 2005 Decision[2] of the Regional Trial Court of San Pablo, Laguna, Branch 32 in Criminal Case No. 14730-SP(04), finding appellant Saidamen Macatingag y Namri guilty beyond reasonable doubt of the crime of Violation of Section 5, Article II of Republic Act No. 9165, also known as the “Comprehensive Dangerous Drugs Act of 2002.”

In its Brief for the Appellee,[3] the Office of the Solicitor General (OSG) presents the prosecution’s version of the facts as follows:

On January 17, 2004, about 8:00 o’clock in the morning, the members of the Philippine National Police (PNP) in Camp Vicente Lim in Canlubang, Calamba City formed a buy-bust team because of a report from a confidential informant about the drug pushing activities of a certain “Sai,” who later turned out to be appellant. The team was composed of P/Sr. Insp. Julius Cesar V. Ablan, as leader, and PO3 Marino A. Garcia as the poseur-buyer and PO3 Danilo Leona as the arresting officer, as well as two police officers. After discussing the buy-bust procedure including the pre- arranged signal which is the removal of PO3 Garcia’s cap, and the preparation of two P500.00 bills initialed with “MAG,” the police authorities immediately proceeded to the target area at the vicinity of Phase I, Villa Antonio, San Pablo City.

Upon arriving thereat about 11:30 o’clock in the morning of that day, PO3 Garcia and the confidential informant waited for appellant at the entrance gate of Villa Antonio Subdivision in San Pablo City. Some twenty (20) minutes later, appellant arrived sporting black pants and dark gray t-shirt. PO3 Garcia was introduced to appellant as the prospective buyer. Appellant, on the other hand, asked PO3 Garcia about the money amounting to P52,500.00. PO3 Garcia then pulled out an envelope containing the two P500.00 bills with the boodle money from his pocket, and demanded the drugs. Appellant thereafter pulled out from his pocket one plastic sachet and handed it to PO3 Garcia. Immediately upon giving appellant the marked money, PO3 Garcia lost no time in giving the pre-arranged signal to PO3 Leona. PO3 Leona thereupon hurriedly seized from appellant the marked money, while PO3 Garcia recovered the plastic sachet containing suspected shabu from appellant. The policemen thereafter brought appellant to their station in Canlubang, Calamba City. PO3 Garcia marked the seized plastic sachet with markings “A” and “MAG” representing his initials, and the date and time of arrest. After making an inventory on the seized suspected shabu, the police authorities requested for the laboratory examination thereof with the PNP Crime Laboratory.

The seized suspected sachet of shabu was shown positive for Methamphetamine Hydrochloride weighing 25.23 grams per Chemistry Report No. D-54-04 issued by P/Insp. Lorna R. Tria, Forensic Chemical Officer of PNP Crime Laboratory.[4]

On January 19, 2004, appellant was charged with Violation of Section 5, Article II of R.A. No. 9165,[5] in an Information[6]that reads:

That on or about January 17, 2004, in the City of San Pablo, Republic of the Philippines and within the jurisdiction of this Honorable Court, the accused above- named, did then and there willfully, unlawfully and feloniously sell 25.23 grams of Methamphetamine Hydrochloride (shabu), a dangerous drug, without being authorized by law.

CONTRARY TO LAW.[7]

Appellant pleaded not guilty to the offense charged.[8] He maintained that he was at home with his wife on January 17, 2004 when four armed men suddenly entered their house, seized his money, placed handcuffs on his wrists, and forcibly brought him to the police headquarters in Bgy. Canlubang. He averred that he was not allowed to talk with anybody when he was incarcerated for two days and that he was alone during the preliminary investigation. Thereafter, he was transferred to the Bureau of Jail Management and Penology (BJMP) in San Pablo City, where he was formally charged with selling shabu.

On June 16, 2005, the trial court rendered judgment convicting appellant of Violation of Section 5, Article II of R.A. No. 9165, the dispositive portion of which reads:

WHEREFORE, IN VIEW OF THE FOREGOING CONSIDERATIONS, accused SAIDAMEN MACATINGAG Y NAMRI alias “SAI” is found GUILTY beyond reasonable doubt of the crime of Violation of Section 5, Article II of Republic Act 9165 also known as the “Comprehensive Dangerous Drugs Act of 2002”, and there being no mitigating circumstance, accused is hereby sentenced to suffer a penalty of LIFE IMPRISONMENT and a fine of FIVE HUNDRED THOUSAND PESOS (P500,000.00), and to pay the costs.

The effects of the crime are ordered confiscated in favor of the government. The custodian of the shabu subject of the case is hereby ordered to submit the same to the Dangerous Drugs Board for proper disposition within 48 hours from receipt of a copy of this judgment and the latter is given 48 hours from receipt of the same to submit an acknowledgment receipt to this Court to form part of the records of this case.

SO ORDERED.[9]

The trial court found that all the elements of the crime charged were present and proven beyond reasonable doubt by the evidence of the prosecution and the testimonies of the poseur-buyer and the arresting officer who are presumed to have performed their duties regularly. It disregarded the allegations of the defense that appellant was a victim of a frame-up and that he was not arrested pursuant to a valid buy-bust operation.

On July 31, 2007, the Court of Appeals rendered the assailed Decision which affirmed in toto the ruling of the trial court. The appellate court held that the constitutional right of appellant against warrantless arrest and search was not violated; that appellant failed to assail the legality of the arrest and the seizure of the sachet of shabu prior to his arraignment or at any stage in the proceedings of the trial court; that the arrest was pursuant to a buy-bust operation which is a valid form of entrapment of felons in the execution of their criminal plan; and that the search conducted on appellant was incidental to a lawful arrest.[10] The appellate court also gave more weight and credence to the testimonies of the members of the buy-bust team because they were not shown to have been impelled by ill-motives in testifying against appellant.

Hence, this petition.[11]

Appellant avers that the trial court and the Court of Appeals gravely erred in giving undue credence to the testimonies of the police officers and in upholding the presumption of regularity in the performance of their official functions. He also assails the validity of his arrest because the police officers were not armed with any warrant when he was arrested. Finally, he assails the propriety of the chain of custody of the shabu allegedly seized from him due to the non-observation of Section 21, Article II of R.A. No. 9165.[12]

The elements necessary for the prosecution of illegal sale of drugs are (1) the identity of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment therefor. What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti.[13]

These elements have been proven to be present in the instant case. PO3 Garcia who acted as the poseur-buyer, categorically testified about the buy-bust operation – from the time he was introduced by the informant to appellant as the buyer of the shabu; to the time when appellant agreed to the sale; to the actual exchange of the marked money and the heat-sealed sachet containing a white crystalline substance; and until the apprehension of appellant, to wit:

A I myself together with confidential informant just walked, as well as the area and waited the poseur at the agreed place situated at the vicinity of entrance of Villa Antonio, San Pablo City.

Q You were waiting for the suspects at the entrance of Villa San Antonio and then what else transpired next?

A After more or less 20 minutes of waiting ma’am we saw a man wearing a black pants and dark gray t-shirts arrived in our position, it was introduced our confidential informant, he was introduced our confidential that as the poseur, likewise I was also introduced as the seller, [sic] I was also introduced by the confidential informant as the buyer.

Q Who are the supposed to be the buyer, you were introduced as a buyer?

A Yes, ma’am.

FISCAL LAGMAN

Q And this suspect who was the seller, is he present in Court today?

A Yes, ma’am.

Q Would you kindly point to him?

A The 6th man from the Steel Cabinet.

INTERPRETER

Makikitayo, anong pangalan mo?

ACCUSED

Saidamen Macatingag po.

x x x x

FISCAL LAGMAN

Q So, after the introductions were made what happened?

A The seller identified the money, ma’am, which is amounting to P52,500.00.

FISCAL LAGMAN

Q What did you do?

A I immediately pull out from my pocket the envelope which is contained the 2 pieces of P500 bills and the bodol money as agreed amount of P52,500. Likewise as also the seller if it has a dangerous drugs, ma’am.

Q And then what happened?

A I immediately pulled out 1 plastic sachet from his pocket and handed it over to me ma’am.

Q One (1) plastic sachet was handed to you?

A Yes, ma’am.

Q After you handed that money?

A No, ma’am we handed first to me the sachet and he demanded the payment of sachet, ma’am.

x x x x

FISCAL LAGMAN

Q What happened after the exchanged of the money and plastic sachet?

A After I gave him the buy bust money as agreed upon before we discovered as the bodol money, I immediately executed the pre-arranged signal which is remove my cap, ma’am.

Q After you removed your cap, what happened?

A I saw PO3 Leona arrived and assisted me, after the arresting.

Q While you were arresting this Saidamen, this accused, what did you do as a matter of procedure, what did you tell him?

A We informed him the constitutional rights, ma’am. PO2 Leona was able to recovered this custody control of bodol money.

x x x x

Q So, after that, where did you bring Saidamen?

A We immediately brought him at our office at Camp Vicente Lim, Canlubang, Laguna together with confiscated pieces of evidence for proper disposition.

Q You said that you were able to buy 1 plastic sachet of shabu that was supposed to be worth of P52,500, would you be able to identify the plastic sachet if you will be shown to you?

A Yes, ma’am.

Q What markings did you place if any?

A I put my exhibit A, my initials, the date and time of arrest included the month and year, ma’am.

Q I am showing to you exhibit F, would you kindly tell us if this is the one that you brought from Saidamen Macatingag?

A Yes, ma’am.[14]

PO3 Leona, the back-up arresting officer during the buy-bust operation corroborated PO3 Garcia’s testimony, thus:

Q After you placed yourself 10 meters a way from the house, from the site and likewise Marino Garcia and the informant and the fence near the site, what happened thereafter?

A I saw a person came out from that way near the hollow blocks fence wearing black pants and green t-shirt and I saw they were talking with our confidential informant.

FISCAL COMILANG

Q Could you see the person who just arrived and talked with your confidential informant on said occasion, is he in Court?

A Yes, sir.

Q Could you please point to him if he is present?

INTERPRETER

Witness pointed to a person who gave us his name as Saidamen Macatingag.

FISCAL COMILANG

Q Now, Mr. Witness after the confidential informant and the accused had a conversation what did if any transpired after this conversation?

A After 30 minutes I saw the pre-arranged signal that this PO3 Marino Garcia will remove his cap.

Q You mean to say or to impress this court that Mr. Witness that the informant and Mr. Garcia were together when they had a transaction with the accused?

A Yes, sir because the confidential informant introduced Mr. Marino Garcia to the accused.

x x x x

FISCAL COMILANG

Q After you saw PO3 Marino Garcia removed his cap, what did you do after that?

A I went to the area to help PO3 Garcia.

Q What if any did you find out after helping PO3 Marino Garcia?

A I arrested Saidamen and I removed from him the 2 pieces of P500 the bodol money.

x x x x

Q Now after recovering that 2 P500 bills from the accused what will be, were you able to recover?

A I recovered from the accused the money and it was SPO3 Marino Garcia who recovered the 25 grams of shabu conducted.[15]

Prosecutions involving illegal drugs depend largely on the credibility of the police officers who conducted the buy-bust operation.[16] It is a fundamental rule that findings of the trial courts which are factual in nature and which involve credibility are accorded respect when no glaring errors; gross misapprehension of facts; or speculative, arbitrary, and unsupported conclusions can be gathered from such findings. The reason for this is that the trial court is in a better position to decide the credibility of witnesses, having heard their testimonies and observed their deportment and manner of testifying during the trial. The rule finds an even more stringent application where said findings are sustained by the Court of Appeals.[17]

The testimonies of police officers Garcia and Leona, and the sachet of shabu sold by appellant sufficiently proved the crime charged. Moreover, the prosecution was able to establish that the substance recovered from appellant was indeed shabu.[18]

In view of these testimonies and evidence of the prosecution, appellant’s denial must fail. The Court has consistently stressed that denial, like alibi, is a weak defense that becomes even weaker in the face of positive identification of the accused by prosecution witnesses.[19] Moreover, appellant failed to adduce clear and convincing evidence to overturn the presumption that the arresting officers regularly performed their duties. It was not shown, by any satisfactory degree of proof, that said policemen were impelled by ill-motives to testify against him. There is, therefore, no basis to suspect the veracity of their testimonies.

With regard to the validity of his arrest, evidence shows that appellant was the subject of a buy-bust operation. In this jurisdiction, the conduct of a buy-bust operation is a common and accepted mode of apprehending those involved in illegal sale of prohibited or regulated drugs. It has been proven to be an effective way of unveiling the identities of drug dealers and of luring them out of obscurity.[20] It catches the violator in flagrante delicto and the police officers conducting the operation are not only authorized but duty-bound to apprehend the violator and to search him for anything that may have been part of or used in the commission of the crime.[21]

Finally, this Court likewise finds no merit in appellant’s contention that the police officers failed to comply with the guidelines on the chain of custody and disposition of the seized sachet of shabu as provided in Section 21, Article II of R.A. No. 9165. Testimonies of prosecution witnesses convincingly state that the integrity and the evidentiary value of the seized item was properly preserved by the apprehending officers. P03 Garcia testified that he marked the sachet of shabu with his initials, and the date and time of appellant’s arrest.[22] PO3 Leona confirmed that he had seen PO3 Garcia mark the same sachet of shabu sold by appellant; that a letter of request for the examination of said sachet was made; and such request was received by the regional crime laboratory office. Thus:

Q Were you able to see that the shabu was actually was you said that recovered PO3 Marino Garcia from the accused?

A Yes, sir.

COURT

Q Did you put your initial in the specimen?

A I was only accompanied Marino Garcia in bringing to the crime lab.

FISCAL COMILANG

Q Since you have seen Mr. Witness the actual shabu was taken from the accused, do you know if Mr. Garcia placed any reference on the said article, if any?

A Yes, sir, the initial of Marino Garcia.

Q What is that initial?

A MAG.

Q Mr. Witness, why do you know that police officer Marino Garcia actually placed his initial on the said specimen or item? A Everytime that we conducted the buy bust, it is our SOP to place the marking.

Q Mr. Witness I will show you that item confiscated Marino Garcia from the accused on the alleged of the item, could you identify it?

A Yes, sir.

Q I will show to you now the plastic sachet big plastic sachet which contained white crystalline substance, could you please tell us what is the relationship of this item from that item allegedly taken by Marino Garcia from the accused on which marking was placed?

A This is the item which is recovered from the accused. Mr. Garcia placed his initial.

Q What is MAG?

A MAG referred to Marino A. Garcia.

x x x x

Q After the specimen and the accused were transferred to the investigator of Regional director what happened to the accused and the specimen?

A The investigator prepared a paper for the filing of the…and prepared a letter request for the examination.

Q Would you specify what are those documents prepared by the investigator as pre-requisite of filing of this case?

A We prepared the letter request for the crime lab request for the accused we first report to the effect…did not suffer physical injury.

x x x x

Q Do you know if this document was actually received by the addressee?

A Yes, sir, because I was with them.

Q What proof that this document was actually received by the addressee?

A There was a stamp marked of receipt, sir.[23]

As can be gleaned from the foregoing, the seized sachet of shabu was immediately marked for proper identification and, thereafter, forwarded to the Crime Laboratory for examination. The Chemistry Report of the Regional Crime Laboratory Office stated that the specimen submitted by the apprehending officers indeed bore the marking “Exh A MAG 171200-01-14” and that the same gave positive result to the tests for the presence of Methamphetamine Hydrochloride. Forensic Chemical Officer Tria confirmed on the witness stand that she examined the specimen submitted by the PDEA and that she was the one who prepared the Chemistry Report No. D-54-04.[24]

It is thus evident that the identity of the corpus delicti has been properly preserved and established by the prosecution. Besides, the integrity of the evidence is presumed to be preserved unless there is a showing of bad faith, ill will, or proof that the evidence has been tampered with. The appellant in this case has the burden to show that the evidence was tampered or meddled with to overcome a presumption of regularity in the handling of exhibits by public officers and a presumption that public officers properly discharge their duties.[25] Appellant failed to discharge such burden.

This Court has held that non-compliance with Section 21, Article II of R.A. No. 9165 will not render an accused’s arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused.[26]

In People of the Philippines v. Del Monte,[27] it was held that:

Under Section 3 of Rule 128 of the Rules of Court, evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. For evidence to be inadmissible, there should be a law or rule which forbids its reception. If there is no such law or rule, the evidence must be admitted subject only to the evidentiary weight that will accorded it by the courts. One example is that provided in Section 31 of Rule 132 of the Rules of Court wherein a party producing a document as genuine which has been altered and appears to be altered after its execution, in a part material to the question in dispute, must account for the alteration. His failure to do so shall make the document inadmissible in evidence. This is clearly provided for in the rules.

We do not find any provision or statement in said law or in any rule that will bring about the non-admissibility of the confiscated and/or seized drugs due to non- compliance with Section 21 of Republic Act No. 9165. The issue therefore, if there is non-compliance with said section, is not of admissibility, but of weight — evidentiary merit or probative value — to be given the evidence. The weight to be given by the courts on said evidence depends on the circumstances obtaining in each case.[28]

All told, We see no reason to disturb the findings of the trial court that appellant is guilty beyond reasonable doubt of illegal sale of a dangerous drug, as defined and penalized in Section 5, Article II of R.A. No. 9165. Under said provision, the illegal sale of any dangerous drug, regardless of its quantity and purity, is punishable by life imprisonment to death and a fine of P500,000.00 to P10,000,000.00.

For illegally selling 25.23 grams of shabu, and there being no modifying circumstance alleged in the Information, the trial court, as sustained by the Court of Appeals, correctly imposed the penalty of life imprisonment in accordance with Article 63 (2) of the Revised Penal Code[29] and a fine of P500,000.00.

WHEREFORE, the instant appeal is DENIED. The Decision of the Court of Appeals in CA-G.R. CR-HC No. 01487 dated July 31, 2007, sustaining the conviction of appellant Saidamen Macatingag y Namri for violation of Section 5, Article II of Republic Act No. 9165, and imposing upon him the penalty of life imprisonment and a fine of P500,000.00 is hereby AFFIRMED.

SO ORDERED. G.R. No. 81567 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA, MANOLITA O. UMIL and NICANOR P. DURAL, FELICITAS V. SESE, petitioners, vs. FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO, BRIG. GEN. ALEXANDER AGUIRRE, respondents.

G.R. Nos. 84581-82 October 3, 1991

AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners, vs. GEN. RENATO DE VILLA and GEN, RAMON MONTANO, respondents.

G.R. Nos. 84583-84 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T. ANONUEVO and RAMON CASIPLE: DOMINGO T. ANONUEVO and RAMON CASIPLE, petitioners, vs. HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARIÑO, LT. COL. REX D. PIAD, T/SGT. CONRADO DE TORRES, S/SGT. ARNOLD DURIAN, and Commanding Officer, PC-INP Detention Center, Camp Crame, Quezon City, respondents.

G.R. No. 83162 October 3, 1991

IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A. OCAYA AND DANNY RIVERA: VIRGILIO A. OCAYA, petitioners, vs. BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL. NESTOR MARIANO, respondents.

G.R. No. 85727 October 3, 1991

IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF DEOGRACIAS ESPIRITU, petitioner, vs. BRIG. GEN.ALFREDO S. LIM, COL. RICARDO REYES, respondents.

G.R. No. 86332 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B. NAZARENO: ALFREDO NAZARENO,petitioner, vs. THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION, Muntinglupa, Metro Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and P/SGT. MALTRO AROJADO, respondents.

Efren H. Mercado for petitioners in G.R. No. 81567 and G. R. No. 83162.

Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82

Josefina G. Campbell-Castillo for petitioners in G.R. Nos. 84583-84.

Potenciano A. Flores, Jr. for petitioner in G.R. No. 85727.

The Solicitor General for the respondents.

R E S O L U T I O N

PER CURIAM:p

Before the Court are separate motions filed by the petitioners in the above-entitled petitions, seeking reconsideration of the Court's decision promulgated on 9 July 1990 (the decision, for brevity) which dismissed the petitions, with the following dispositive part:

WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No. 85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional liberty is hereby ordered reduced from P60,000.00 to P10,000.00. No costs.

The Court avails of this opportunity to clarify its ruling a begins with the statement that the decision did not rule — as many misunderstood it to do — that mere suspicion that one is Communist Party or New People's Army member is a valid ground for his arrest without warrant. Moreover, the decision merely applied long existing lawsto the factual situations obtaining in the several petitions. Among these laws are th outlawing the Communist Party of the Philippines (CPP) similar organizations and penalizing membership therein be dealt with shortly). It is elementary, in this connection, if these laws no longer reflect the thinking or sentiment of the people, it is Congress as the elected representative of the people — not the Court — that should repeal, change or modify them.

In their separate motions for reconsideration, petitioners, in sum, maintain:

1. That the assailed decision, in upholding the validity of the questioned arrests made without warrant, and in relying on the provisions of the Rules of Court, particularly Section 5 of Rule 113 (Arrest), disregards the fact that such arrests violated the constitutional rights of the persons arrested;

2. That the doctrine laid down in Garcia vs. Enrile 1 and Ilagan vs. Enrile 2 should be abandoned; 3. That the decision erred in considering the admissions made by the persons arrested as to their membership in the Communist Party of the Philippines/New People's Army, and their ownership of the unlicensed firearms, ammunitions and subversive documents found in their possession at the time of arrest, inasmuch as those confessions do not comply with the requirements on admissibility of extrajudicial admissions;

4. That the assailed decision is based on a misappreciation of facts;

5. That G.R. No. 81567 (the Umil case) should not be deemed moot and academic.

We find no merit in the motions for reconsideration.

It can not be overlooked that these are petitions for the issuance of the writ of habeas corpus, filed by petitioners under the Rules of Court. 3 The writ of habeas corpus exists as a speedy and effective remedy to relieve persons from unlawful restraint. 4Therefore, the function of the special proceedings of habeas corpus is to inquire into the legality of one's detention, 5 so that if detention is illegal, the detainee may be ordered forthwit released.

In the petitions at bar, to ascertain whether the detention petitioners was illegal or not, the Court before rendering decision dated 9 July 1990, looked into whether their questioned arrests without warrant were made in accordance with law. For, if the arrests were made in accordance with law, would follow that the detention resulting from such arrests also in accordance with law.

There can be no dispute that, as a general rule, no peace officer or person has the power or authority to arrest anyo without a warrant of arrest, except in those cases express authorized by law. 6 The law expressly allowing arrests witho warrant is found in Section 5, Rule 113 of the Rules of Court which states the grounds upon which a valid arrest, without warrant, can be conducted.

In the present cases, the focus is understandably on Section 5, paragraphs (a) and (b) of the said Rule 113, which read:

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 he 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 arrest has committed it; and

. . . (Emphasis supplied).

The Court's decision of 9 July 1990 rules that the arrest Rolando Dural (G.R. No. 81567) without warrant is justified it can be said that, within the contemplation of Section 5 Rule 113, he (Dural) was committing an offense, when arrested because Dural was arrested for being a member of the New People's Army, an outlawed organization, where membership penalized, 7 and for subversion which, like rebellion is, under the doctrine of Garcia vs. Enrile, 8 a continuing offense, thus:

The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance (sic) on the occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside from their essentially involving a massive conspiracy of nationwide magnitude. . . .

Given the ideological content of membership in the CPP/NPA which includes armed struggle for the overthrow of organized government, Dural did not cease to be, or became less of a subversive, FOR PURPOSES OF ARREST, simply because he was, at the time of arrest, confined in the St. Agnes Hospital. Dural was identified as one of several persons who the day before his arrest, without warrant, at the St. Agnes Hospital, had shot two (2) CAPCOM policemen in their patrol car. That Dural had shot the two (2) policemen in Caloocan City as part of his mission as a "sparrow" (NPA member) did not end there and then. Dural, given another opportunity, would have shot or would shoot other policemen anywhere as agents or representatives of organized government. It is in this sense that subversion like rebellion (or insurrection) is perceived here as a continuing offense. Unlike other so-called "common" offenses, i.e. adultery, murder, arson, etc., which generally end upon their commission, subversion and rebellion are anchored on an ideological base which compels the repetition of the same acts of lawlessness and violence until the overriding objective of overthrowing organized government is attained.

Nor can it be said that Dural's arrest was grounded on mere suspicion by the arresting officers of his membership in the CPP/NPA. His arrest was based on "probable cause," as supported by actual facts that will be shown hereafter.

Viewed from another but related perspective, it may also be said, under the facts of the Umil case, that the arrest of Dural falls under Section 5, paragraph (b), Rule 113 of the Rules of Court, which requires two (2) conditions for a valid arrestt without warrant: first, that the person to be arrested has just committed an offense, and second, that the arresting peace officer or private person has personal knowledge of facts indicating that the person to be arrested is the one who committed the offense. Section 5(b), Rule 113, it will be noted, refers to arrests without warrant, based on "personal knowledge of facts" acquired by the arresting officer or private person.

It has been ruled that "personal knowledge of facts," in arrests without warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion 9 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. 10 A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. 11

These requisites were complied with in the Umil case and in the other cases at bar.

In G.R. No. 81567 (Umil case), military agents, on 1 February 1988, were dispatched to the St. Agnes Hospital, Roosevelt Avenue, Quezon City, to verify a confidential information which was received by their office, about a "sparrow man" (NPA member) who had been admitted to the said hospital with a gunshot wound; that the information further disclosed that the wounded man in the said hospital was among the five (5) male "sparrows" who murdered two (2) Capcom mobile patrols the day before, or on 31 January 1988 at about 12:00 o'clock noon, before a road hump along Macanining St., Bagong Barrio, Caloocan City; that based on the same information, the wounded man's name was listed by the hospital management as "Ronnie Javellon," twenty-two (22) years old of Block 10, Lot 4, South City Homes, Biñan, Laguna. 12

Said confidential information received by the arresting officers, to the effect that an NPA member ("sparrow unit") was being treated for a gunshot wound in the named hospital, is deemed reasonable and with cause as it was based on actual facts and supported by circumstances sufficient to engender a belief that an NPA member was truly in the said hospital. The actual facts supported by circumstances are: first — the day before, or on 31 January 1988, two (2) CAPCOM soldiers were actually killed in Bagong Bario, Caloocan City by five (5) "sparrows" including Dural; second — a wounded person listed in the hospital records as "Ronnie Javellon" was actually then being treated in St. Agnes Hospital for a gunshot wound; third — as the records of this case disclosed later, "Ronnie Javellon" and his address entered in the hospital records were fictitious and the wounded man was in reality Rolando Dural.

In fine, the confidential information received by the arresting officers merited their immediate attention and action and, in fact, it was found to be true. Even the petitioners in their motion for reconsideration, 13 believe that the confidential information of the arresting officers to the effect that Dural was then being treated in St. Agnes Hospital was actually received from the attending doctor and hospital management in compliance with the directives of the law, 14 and, therefore, came from reliable sources.

As to the condition that "probable cause" must also be coupled with acts done in good faith by the officers who make the arrest, the Court notes that the peace officers wno arrested Dural are deemed to have conducted the same in good faith, considering that law enforcers are presumed to regularly perform their official duties. The records show that the arresting officers did not appear to have been ill- motivated in arresting Dural. 15 It is therefore clear that the arrest, without warrant, of Dural was made in compliance with the requirements of paragraphs (a) and (b) of Section 5, Rule 113.

Parenthetically, it should be mentioned here that a few day after Dural's arrest, without warrant, an information charging double murder with assault against agents of persons in authority was filed against Dural in the Regional Trial Court of Caloocan City (Criminal Case No. C-30112). He was thus promptly placed under judicial custody (as distinguished fro custody of the arresting officers). On 31 August 1988, he wa convicted of the crime charged and sentenced to reclusion perpetua. The judgment of conviction is now on appeal before this Court in G.R. No. 84921.

As to Amelia Roque and Wilfredo Buenaobra (G.R. Nos. 84581-82), Domingo Anonuevo and Ramon Casiple(G.R. Nos. 84583-84) and Vicky Ocaya (G.R. No. 83162), their arrests, without warrant, are also justified. They were searched pursuant to search warrants issued by a court of law and were found wit unlicensed firearms, explosives and/or ammunition in their persons. They were, therefore, caught in flagrante delicto which justified their outright arrests without warrant, under Sec 5(a), Rule 113, Rules of Court. Parenthetically, it should be mentioned here that a few davs after their arrests without warrant, informations were filed in court against said petitioners, thereby placing them within judicial custody and disposition. Furthermore, Buenaobra mooted his own petition fo habeas corpus by announcing to this Court during the hearing of these petitions that he had chosen to remain in detention in the custody of the authorities.

More specifically, the antecedent facts in the "in flagrante" cases are:

1. On 27 June 1988, the military agents received information imparted by a former NPA about the operations of the CPP and NPA in Metro Manila and that a certain house occupied by one Renato Constantine, located in the Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro Manila was being used as their safehouse; that in view of this information, the said house was placed under military surveillance and on 12 August 1988, pursuant to a search warrant duly issued by court, a search of the house was conducted; that when Renato Constantine was then confronted he could not produce any permit to possess the firearms, ammunitions, radio and other communications equipment, and he admitted that he was a ranking member of the CPP. 16

2. In the case of Wilfredo Buenaobra, he arrived at the house of Renato Constantino in the evening of 12 August 1988, and admitted that he was an NPA courier and he had with him letters to Renato Constantine and other members of the rebel group. 3. On the other hand, the arrest of Amelia Roque was a consequence of the arrest of Buenaobra who had in his possession papers leading to the whereabouts of Roque; 17 that, at the time of her arrest, the military agents found subversive documents and live ammunitions, and she admitted then that the documents belonged to her. 18

4. As regards Domingo Anonuevo and Ramon Casiple they were arrested without warrant on 13 August 1988, when they arrived at the said house of Renato Constantine in the evening of said date; that when the agents frisked them, subversive documents, and loaded guns were found in the latter's possession but failing to show a permit to possess them. 19

5. With regard to Vicky Ocaya, she was arrested, without warrant when she arrived (on 12 May 1988) at the premises ofthe house of one Benito Tiamzon who was believed to be the head of the CPP/NPA, and whose house was subject of a search warrant duly issued by the court. At the time of her arrest without warrant the agents of the PC-Intelligence and Investigation found ammunitions and subversive documents in the car of Ocaya. 20

It is to be noted in the above cases (Roque, Buenaobra, Anonuevo, Casiple and Ocaya) that the reason which compelled the military agents to make the arrests without warrant was the information given to the military authorities that two (2) safehouses (one occupied by Renato Constantine and the other by Benito Tiamzon) were being used by the CPP/NPA for their operations, with information as to their exact location and the names of Renato Constantine and Benito Tiamzon as residents or occupants thereof.

And at the time of the actual arrests, the following circumstances surrounded said arrests (of Roque, Buenaobra, Anonuevo and Casiple), which confirmed the belief of the military agents that the information they had received was true and the persons to be arrested were probably guilty of the commission of certain crimes: first: search warrant was duly issued to effect the search of the Constantine safehouse; second: found in the safehouse was a person named Renato Constantine, who admitted that he was a ranking member of the CPP, and found in his possession were unlicensed firearms and communications equipment; third: at the time of their arrests, in their possession were unlicensed firearms, ammunitions and/or subversive documents, and they admitted ownership thereof as well as their membership in the CPP/NPA. And then, shortly after their arrests, they were positively identified by their former comrades in the organization as CPP/NPA members. In view of these circumstances, the corresponding informations were filed in court against said arrested persons. The records also show that, as in the case of Dural, the arrests without warrant made by the military agents in the Constantino safehouse and later in the Amelia Roque house, do not appear to have been ill-motivated or irregularly performed. With all these facts and circumstances existing before, during and after the arrest of the afore-named persons (Dural, Buenaobra, Roque, Anonuevo, Casiple and Ocaya), no prudent an can say that it would have been better for the military agents not to have acted at all and made any arrest. That would have been an unpardonable neglect of official duty and a cause for disciplinary action against the peace officers involved.

For, one of the duties of law enforcers is to arrest lawbreakers in order to place them in the hands of executive and judicial authorities upon whom devolves the duty to investigate the acts constituting the alleged violation of law and to prosecute and secure the punishment therefor. 21 An arrest is therefore in the nature of an administrative measure. The power to arrest without warrant is without limitation as long as the requirements of Section 5, Rule 113 are met. This rule is founded on an overwhelming public interest in peace and order in our communities.

In ascertaining whether the arrest without warrant is conducted in accordance with the conditions set forth in Section 5, Rule 113, this Court determines not whether the persons arrested are indeed guilty of committing the crime for which they were arrested. 22 Not evidence of guilt, but "probable cause" is the reason that can validly compel the peace officers, in the performance of their duties and in the interest of public order, to conduct an arrest without warrant. 23

The courts should not expect of law-enforcers more than what the law requires of them. Under the conditions set forth in Section 5, Rule 113, particularly paragraph (b) thereof, even if the arrested persons are later found to be innocent and acquitted, the arresting officers are not liable. 24 But if they do not strictly comply with the said conditions, the arresting officers can be held liable for the crime of arbitrary detention, 25 for damages under Article 32 of the Civil Code 26 and/or for other administrative sanctions.

In G.R. No. 85727, Espiritu, on 23 November 1988, was arrested without warrant, on the basis of the attestation of certain witnesses: that about 5:00 o'clock in the afternoon of 22 November 1988, at the corner of Magsaysay Boulevard and Velencia St., Sta. Mesa, Manila, Espiritu spoke at a gathering of drivers and sympathizers, where he said, among other things:

Bukas tuloy ang welga natin . . . hanggang sa magkagulona. 27 (Emphasis supplied) and that the police authorities were present during the press conference held at the National Press Club (NPC) on 22 November 1988 where Espiritu called for a nationwide strike (of jeepney and bus drivers) on 23 November 1988. 28 Espiritu was arrested without warrant, not for subversion or any "continuing offense," but for uttering the above-quoted language which, in the perception of the arresting officers, was inciting to sedition. Many persons may differ as to the validity of such perception and regard the language as falling within free speech guaranteed by the Constitution. But, then, Espiritu had not lost the right to insist, during the pre-trial or trial on the merits, that he was just exercising his right to free speech regardless of the charged atmosphere in which it was uttered. But, the authority of the peace officers to make the arrest, without warrant, at the time the words were uttered, or soon thereafter, is still another thing. In the balancing of authority and freedom, which obviously becomes difficult at times, the Court has, in this case, tilted the scale in favor of authority but only for purposes of the arrest (not conviction). Let it be noted that the Court has ordered the bail for Espiritu's release to be reduced from P60,000.00 to P10,000.00.

Let it also be noted that supervening events have made the Espiritu case moot and academic. For Espiritu had before arraignment asked the court a quo for re- investigation, the peace officers did not appear. Because of this development, the defense asked the court a quo at the resumption of the hearings to dismiss the case. Case against Espiritu (Criminal Case No. 88-68385) has been provisionally dismissed and his bail bond cancelled.

In G.R. No. 86332 (Nazareno), the records show that in the morning of 14 December 1988, Romulo Bunye II was killed by a group of men in Alabang, Muntinlupa, Metro Manila; that at about 5:00 o'clock in the morning of 28 December 1988, Ramil Regala, one of the suspects in the said killing, was arrested and he pointed to Narciso Nazareno as one of his companions during the killing of Bunye II; that at 7:20 of the same morning (28 December 1988), the police agents arrested Nazareno, without warrant, for investigation. 29

Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant was made only on 28 December 1988, or 14 days later, the arrest fans under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the police authorities came to know that Nazareno was probably one of those guilty in the killing of Bunye II and the arrest had to be made promptly, even without warrant, (after the police were alerted) and despite the lapse of fourteen (14) days to prevent possible flight.

As shown in the decision under consideration, this Court, in upholding the arrest without warrant of Nazareno noted several facts and events surrounding his arrest and detention, as follows:

. . . on 3 January 1989 (or six (6) days after his arrest without warrant), an information charging Narciso Nazareno, Ramil Regala and two (2) others, with the killing of Romulo Bunye II was filed wit the Regional Trial Court of Makati, Metro Manila. The case is dock eted therein as Criminal Case No. 731.

On 7 January 1989, Narciso Nazareno filed a motion to post bail but the motion was denied by the trial court in an order dated 10 January 1989, even as the motion to post bail, earlier filed by his co-accused, Manuel Laureaga, was granted by the same trial court.

On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of Narciso Nazareno and on 13 January 1989, the Court issued the writ of habeas corpus, retumable to the Presiding Judge of the Regional Trial Court of Bifian, Laguna, Branch 24, ordering said court to hear the case on 30 January 1989 and thereafter resolve the petition.

At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the Regional Trial Court of Biñan, Laguna issued a resolution denying the petition for habeas corpus, it appearing that the said Narciso Nazareno is in the custody of the respondents by reason of an information filed against him with the Regional Trial Court of Makati, Metro Manila which liad taken cognizance of said case and had, in fact, denied the motion for bail filed by said Narciso Nazareno (presumably because of the strength of the evidence against him).

This Court reiterates that shortly after the arrests of Espiritu and Nazareno, the corresponding informations against them were filed in court. The arrests of Espiritu and Nazareno were based on probable cause and supported by factual circumstances. They complied with conditions set forth in Section 5(b) of Rule 113. They were not arbitrary or whimsical arrests.

Parenthetically, it should be here stated that Nazareno has since been convicted by the court a quo for murder and sentenced to reclusion perpetua. He has appealed the judgment of conviction to the Court of Appeals where it is pending as of this date ( CA-G.R. No. still undocketed).

Petitioners contend that the decision of 9 July 1990 ignored the contitution requisiteds for admissibility of an extrajudicial admission.

In the case of Buenaobra (G.R. Nos. 84581-82), he admitted 30 that he was an NPA courier. On the other hand, in the case ofAmelia Roque, she admitted 31 that the unlicensed firearms, ammunition and subversive documents found in her possession during her arrest, belonged to her.

The Court, it is true, took into account the admissions of the arrested persons of their membership in the CPP/NPA, as well as their ownership of the unlicensed firearms, ammunitions and documents in their possession. But again, these admissions, as revealed by the records, strengthen the Court's perception that truly the grounds upon which the arresting officers based their arrests without warrant, are supported by probable cause, i.e. that the persons arrested were probably guilty of the commission of certain offenses, in compliance with Section 5, Rule 113 of the Rules of Court. To note these admissions, on the other hand, is not to rule that the persons arrested are already guilty of the offenses upon which their warrantless arrests were predicated. The task of determining the guilt or innocence of persons arrested without warrant is not proper in a petition for habeas corpus. It pertains to the trial of the case on the merits.

As to the argument that the doctrines in Garcia vs. Enrile, and Ilagan vs. Enrile should be abandoned, this Court finds no compelling reason at this time to disturb the same, particularly ln the light of prevailing conditions where national security and liability are still directly challenged perhaps with greater vigor from the communist rebels. What is important is that everv arrest without warrant be tested as to its legality via habeas corpus proceeding. This Court. will promptly look into — and all other appropriate courts are enjoined to do the same — the legality of the arrest without warrant so that if the conditions under Sec. 5 of Rule 113, Rules of Court, as elucidated in this Resolution, are not met, then the detainee shall forthwith be ordered released; but if such conditions are met, then the detainee shall not be made to languish in his detention but must be promptly tried to the end that he may be either acquitted or convicted, with the least delay, as warranted by the evidence.

A Final Word

This Resolution ends as it began, reiterating that mere suspicion of being a Communist Party member or a subversive is absolutely not a ground for the arrest without warrant of the suspect. The Court predicated the validity of the questioned arrests without warrant in these petitions, not on mere unsubstantiated suspicion, but on compliance with the conditions set forth in Section 5, Rule 113, Rules of Court, a long existing law, and which, for stress, are probable cause and good faith of the arresting peace officers, and, further, on the basis of, as the records show, the actual facts and circumstances supporting the arrests. More than the allure of popularity or palatability to some groups, what is important is that the Court be right.

ACCORDINGLY, the motions for reconsideration of the decision dated 9 July 1990, are DENIED. This denial is FINAL.

SO ORDERED.

Narvasa, Melencio-Herrera, Paras, Padilla, Bidin, Griño-Aquino, Medialdea and Davide, Jr., JJ., concur.

Separate Opinions

FERNAN, C.J., concurring and dissenting:

After a deep and thorough reexamination of the decision of Julv 9, 1990 and an exhaustive evaluation of the motions for reconsideration of the said decision, I am inclined to agree with the, majority's resolution on said motions for reconsideration except for the legality of the warrantless arrests of petitioner Deogracias Espiritu for the crime of inciting to sedition and petitioner Alfredo Nazareno for the crime of murder.

In the words of the resolution, Espiritu "was arrested without warrant, not for subversion or any 'continuing offense,' but for uttering" the following: "Bukas tuloy ang welga natin . . . hanggang sa magkagulo na." Apparently, such statement was, in the perception of the arresting officers, inciting to sedition. While not conceding the validity of such perception, realizing that it is indeed possible that Espiritu was merely exercising his right to free speech, the resolution nonetheless supports the authority of peace officers "only for purposes of the arrest."

I find this position to be adverse to the very essence of the resolution which sanctions warrantless arrests provided they are made in accordance with law. In the first place, Espiritu mav not be considered as having "just committed" the crime charged. He allegedly first uttered seditious remarks at the National Press Club in the afternoon of November 12, 1988. The second allegedly seditious remark aforequoted was made at around 5:00 o'clock in the same afternoon (Decision, pp. 23-24). Under these circumstances, the law enforcement agents had time, short though it might seem, to secure a warrant for his arrest. Espiritu's apprehension may not therefore be considered as covered by Section 5(b) of Rule 113 which allows warrantless arrests "when an offense has in fact just been committed."

The same observation applies with greater force in the case of Nazareno who was arrested 14 days after the commission of the crime imputed to him.

Secondly, warrantless arrests may not be allowed if the arresting officer are not sure what particular provision of law had beeri violated by the person arrested. True it is that law en.orcement agents and even prosecutors are not all adept at the However, errneous perception, not to mention ineptitude among their ranks, especially if it would result in the violation of any right of a person, may not be tolerated. That the arrested person has the "right to insist during the pre-trial or trial on the merits" (Resolution., p. 18) that he was exercising a right which the arresting officer considered as contrary to law, is beside the point. No person should be subjected to the ordeal of a trial just because the law enforcers wrongly perceived his action.

Thirdly, inciting to sedition is not a continuous crime for which the offender may be arrested without a warrant duly issued by the proper authority. By its nature, a single act of urging others to commit any of the acts enumerated in Article 142 of the Revised Penal Code may suffice to hold anyone liable for inciting to sedition. While the crime is aimed at anarchy and radicalism and presents largely a question of policy (Espuelas vs. People, 90 Phil, 524 [1951]), it should be remembered that any of the prohibited acts in Article 142 may infringe upon the fundamental freedoms of speech and expression. There arises, therefore, the necessity of balancing interests; those of the State as against those of its individual citizen. Here lies the urgency of judicial intervention before an arrest is made. Added to this is the subjectivity of the determination of what may incite other people to sedition. Hence, while the police should act swiftly when a seditious statement has been uttered in view of the jeopardy it may cause the government, speedy action should consist not in warrantless arrests but in securing warrants for such arrests.

On the legality of warrantless arrests of violators of the Anti-Subversion Law, it should be underscored that anyone who undertakes such arrest must see to it that the alleged violator is knowing member of a subversive organization as distinguished from a nominal one (People vs. Ferrer, L-32613-14, December 27, 1972, 48 SCRA 382). Thus, a subversive may be arrested even if has not committed overt act of overthrowing the government such as bombing of government offices trie assassination of government officials provided there is probable cause to believe that he is in the roll of members of a subversive organization. It devolves upon the accused to prove membership by force or ciorcion. Certainly, one may not be in such a roll without undergoing the concious act of enlistment.

It bears repeating theat warrantless arrests are governed by law and subject to stringent application. Section 5, Rule 113 of the Rules on Criminal Procedure now requires that an offense "has in fact just been committed. "connotes immediacy in point of time and excludes cases under the old rule where an offense 'has in fact been committed' no how long ago. Similarly, the arrestor must have 'personal knowledge of the facts indicating that the [arrestee] has committed it' (instead of just 'reasonable ground believe that the [arrestee] has committed it' under the old rule)." (Dissenting opinion in Ilagan vs. Enrile, G.R. No. 70748, October 21, 1985, 139 SCRA 349, 408).

I deem it aptherein to recall other Court rulings provide guidelines in effecting arrests without warrants. In People vs. Burgos (G.R. No. 68955, September 4, 1986,144 SCRA 1), the Court considered as illegal the warrantless arrest of a subversive not based on the arresting officer's personal knowledge such subversion and held that any rule on arrests witho warrants must be strictly construed. We categorically state therein that warrantless arrests should "clearly fall within the situations when securing a warrant be absurd or is manifestly unnecessary was provided by the Rules" (144 SCRA at 14). Moreover. "it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually (has just) been committed first. That crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator. (Supra, at p. 15).

Earlier, in Morales, Jr. vs. Enrile (G.R. No. 61016, April 26, 1983, 121 SCRA 538), the Court laid out the procedure to be observed the moment a person is arrested:

At the time a person is arrested, it shall be the duty of the arresting officer to imform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means — by telephone if possible — or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arressted, by any person on his behalf, or appointed by the court upon petition on his behalf, or appointed the court upon the petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part shall be inadmissible evidence. (121 SCRA at 554).

These judicial pronouncements must be observed by everyone concerned: the military and civilian components of the government tasked with law enforcement as well as the ordinary citizen who faces a situation wherein civic duty demands his intervention to preserve peace in the community.

I am not unmindful of the fact that abuses occur in arrests especially of offenders of crimes with a political or ideological element. Such abuses are more often than not, triggered by the difficulty in finding evidence that could stand judicial scrutiny — to pinpoint a subversive, police officers usually have to make long persistent surveillance. However, for the orderly administration of government and the maintenance of peace and order in the country, good faith should be reposed on the officials implementing the law. After all, we are not wanting in laws to hold any offending peace officer liable both administratively and criminally for abuses in the performance of their duties. Victims of abuses should resort to legal remedies to redress their grievances.

If existing laws are inadequate, the policy-determining branches of the government may be exhorted peacefully by the citizenry to effect positive changes. This Court, mandated b the Constitution to uphold the law, can only go as far as inter pruting existing laws and the spirit behind them. Otherwise, we hail be entering the dangerous ground of judicial legislation.

GUTIERREZ, JR., J., concurring and dissenting: The philosophy adopted in our Constitution is that liberty is an essential condition for order, It is disturbing whenever the Court leans in the direction of order instead of liberty in har cases coming before us.

People all over the world are fast accepting the theory that only as a society encourages freedom and permits dissent can it have lasting security and real progress, the theory that enhancing order through constraints on freedom is deceptive because restrictions on liberty corrode the very values Govenment pretends to promote. I believe we should move with the people of the world who are fast liberating themselves.

I, therefore, vote for the strict application of Section 5 (a) and (b) of Rule 113 on arrests without warrant, to wit:

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

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

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it. xxx xxx xxx

Only in the cases found in the Rule should we allow arrests without warrants. In case of doubt, the tendency should be to declare the warrantless arrest illegal.

Insofar as G.R. Nos, 84581-82, G.R. Nos. 84583-84 and G.R. No. 83162 involving Amelia Roque, Wilfredo Buenaobra, Domingo Anonuevo, Ramon Casiple, and Vicky Ocaya are concerned, the petitioners were arrested after having been apprehended while in possession of illegal firearms and ammunitions. They were actually committing a crime when arrested. I concur in the denial of their motions for reconsideration.

I vote to grant the motion for reconsideration in G.R. No. 85727 where Deogracias Espiritu was arrested while urging jeepnev and bus drivers to join a strike of transport workers on the ground that that was inciting to sedition.

This impresses me as Court validation of a clear infringement of an individual's freedom of speech. "Inciting to sedition" is a term over which the most learned writers and jurists will differ when applied to actual cases. I doubt if there are more than a handful of policemen in the whole country who would know the full dimensions of the fine distinctions which separate the nation's interest in the liberty to fully anfd freely discuss matters of national importance on one hand and the application of the clear and present danger rule as the test when claims of national security and public safety are asserted, on the other. In fact, the percentage of knowledgeability would go down further if we consider that "inciting to sedition" requires the ability to define, among other (1) what kinds of speeches or writings fall lander the term "inciting" (2) the meaning of rising publicly and tumultously; (3,) when does a certain effort amount to force, intimidation. or illegal method; (4) what constitute the five objects or ends of sedition; and (5) what is a scurrilous libel against the Philippines. If we allow public speakers to be picked up simply because what they say is irritating or obnoxious to the ears of a peace officer or critical of government policy and action, we will undermine all pronouncements of this Court on the need to protect that matrix of all freedoms, which is freedom of expression. At the very least, a warrant of arrest after a preliminary examination by a Judge is essential in this type of offense.

Insofar as G.R. No. 81567 is concemed, I join the other dissenting Justices in their observations regarding "continuing oftenses." To base warrantless arrests on the doctrine of continuing offense is to give a license for the illegal detention of persons on pure suspicion. Rebellion, insurrection, or sedition are political offenses where the line between overt acts and simple advocacy or adherence to a belief is extremely thin. If a court has convicted an accused of rebellion and he is found roaming around, he may be arrested. But until a person is proved guilty, I fail to see how anybody can jump to a personal conclusion that the suspect is indeed a rebel and must be picked up on sight whenever seen. The grant of authority in the majority opinion is too broad. If warrantless searches are to be validated, it should be Congress and not this Court which should draw strict and narrow standards. Otherwise, the non-rebels who are critical, noisy, or obnoxious will be indiscriminately lumped up with those actually taking up arms against the Government.

The belief of law enforcement authorities, no matter how well grounded on past events, that the petitioner would probably shoot other policemen whom he may meet does not validate warrantless arrests. I cannot understand why the authorities preferred to bide their time, await the petitioner's surfacing from underground, and pounce on him with no legal authority instead of securing warrants of arrest for his apprehension. The subsequent conviction of a person arrested illegally does not the warrantless arrest.

In G.R. No. 86332, Romulo Bunye was killed on December 14, 1988. The information that Narciso Nazareno was one of the killers came to the attention of peace officers only on December 28, 1988 or fourteen (14) days later. To say that the offense "has in fact just been committed" even if 14 days have lapsed is to stretch Rule 11 3 on warrantless arrests into ridiculous limits. A warrant of arrest is essential in this case. I vote to grant the motion for reconsideration.

The subsequent conviction of a person arrested illegally does not reach back into the past and render legal what was illegal. The violation of the constitutional right against illegal seizures is not cured by the fact that the arrested person is indeed guilty of the offense for which he was seized. A government of laws must abide by its own Constitution.

CONSIDERING THE FOREGOING, I VOTE TO:

(1) DENY the motions for reconsideration in G.R. Nos. 84581-82; G.R. No. 84583-84; and G.R. No. 83162;

(2) GRANT the motion for reconsideration in G.R. No. 85727;

(3) GRANT the motion for reconsideration in G.R. No. 86332;and

(4) GRANT the motion for reconsideration in G.R. No. 81567.

CRUZ, J., Separate Opinion:

I reiterate my concurrence with the ponencia insofar as it dismissed the petitions of those who were arrested inflagrante, or subsequently posted bail or chose to remain in the custody of the military, or voluntarily permitted the search of the house without warrant. I do not think that under the applicable circumstances the petitioners can validly complain that they are being unlawfully detained.

But I must again express may dissent to the continued observance of Garcia-Padilla vs. Enrile, 121 SCRA 472, to justify the warrantless arrest and detention of the other petitioners on the ground that they were apprehended for the continuing offenses of rebellion and other allied crimes.

We find in the said decision this partltularly disturbing observation, which was quoted with approval in the originalponencia:

The arrest of persons involved in the rebellion, whether as its fighting armed elements, or for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which requires the determination by a judge of the existence of probable cause before the issuance of arrest and the granting of bail of the offense is bailable. Obviously, the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against govenment forces, or any other milder acts but equally in pursuance of the rebellious movement. (Emphasis supplied.)

The treatment suggested envisions an actual state of war and is justified only when a recognition of beuigerency is accorded by the legitimate government to the rebels, resulting in the application of the laws of war in the regulation of their relations. The rebels are then considered alien enemies-to be treated as prisoners of war when captured-and cannot invoke the municipal law of the legitimate government they have disowned. It is in such a situation that the processes of the local courts are not observed and the rebels cannot demand the protection of the Bill of Rights that they are deemed to have renounced by their defiance of the government.

But as long as that recognition has not yet been extended, the legitimate govenment must treat the rebels as its citizens, subject to its municipal law and entitled to all the rights provided thereunder, including and especially those guaranteed by the Constitution. Principal among these — in our country — are whose embodied in the Bill of Rights, particularly those guaranteeing due process, prohibiting unreasonable searches and seizures, allowing bail, and presuming the innocence of the accused. The legitimate government cannot excuse the suppression of these rights by the "exigencies" of an armed conflict that at this time remains an intemal matter governed exclusively by the laws of the Republic of the Philippines.

Treatment of the rebels as if they were foreign invaders — or combatants — is not justified in the present situation as our government continues to prosecute them as violators of our own laws. Under the doctrine announced in Garcia-Padilla, however, all persons suspected as rebels are by such suspicion alone made subject to summary arrest no different from the unceremonious capture of an enemy soldier in the course of a battle. The decision itself says that the arrest "need not follow the usual procedure in the prosecution of offenses" and "the absence of a judicial warrant is no impediment" as long as the person arrested is suspected by the authorities of the "continuing offense" of subversion or rebellion or other related crimes. International law is thus substituted for municipal law in regulating the relations of the Republic with its own citizens in a purely domestic matter.

As for the duration of the offenses, the decision contained the following pronouncement which this Court has also adopted as its own:

. . . The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance on the occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside front their essentially involving a massive conspiracy of nationwide manitude. (Emphasis supplied.)

The beginning of the "continuing offense" may be arbitrarily fixed by the authorities, usually by simply placing the suspect "under surveillance," to lay the basis for his eventual apprehension. Once so placed, he may at any time be arrested without warrant on the specious pretext that he is in the process of committing the "continuing offense," no matter that what he may be actuallly doing at the time is a perfectly innocent act. In the case of Dural. the arrest was made while he was engaged in the passive and innocuous act of undergoing medical treatment. The fiction was indulged that he was even then, as he lay supine in his sickbed, engaged in the continuing offense of rebellion against the State. In further justification, the Court says that the arresting officers acted on "confidential information" that he was in the hospital, which information "was found to be true." This is supposed to have validated the determination of the officers that there was "probable cause" that excused the absence of a warrant.

My own impression is that probable cause must be established precisely to justify the issuance of a warrant, not to dispense with it; moreover, probable cause must be determined by the judge issuing the warrant, not the arresting officer who says it is not necessary.

In the case of Espiritu, the arrest was made while he was actually sleeping, and for allegedly seditious remarks made by him the day before. The Court says his case is not covered by the Garcia-Padilla doctrine but approves the arrest just the same because the remarks were supposed to continue their effects even to the following day. The offense was considered as having been just committed (to make it come under Rule 113, Section 5, of the Rules of Court) despite the considerable time lapse.

It was worse in the case of Nazareno, who was also arrested without warrant, and no less than fourteen days after the killing. In sustaining this act, the Court says that it was only on the day of his arrest that he was identified as one of the probable killers, thus suggesting that the validity of a warrantless arrest is reckoned not from the time of the commission of an offense but from the time of the Identification of the suspect.

Section 5 of Rule 113 says that a peace officer may arrest a person without a warrant if the latter "has committed, is actually committing, or is attempting to commit an offense" or when an offense "has in fact just been committed." The requirement of immediacy is obvious from the word "just," which, according to Webster, means "a very short time ago." The arrest must be made almost immediately or soon after these acts, not at any time after the suspicion of the arresting officer begins, no matter how long ago the offense was committed.

I am also uneasy over the following observations in the present resolution which I hope will not be the start of another dangerous doctrine:

I can only repeat my own misgivings when I dissented in the recent case of People vs. Malmstedt, G.R. No. 91107, June 19, 1991, where I noted: "The conclusion that there was probable cause may have been influenced by the subsequent discovery that the accused was carrying a prohibited drug. This is supposed to justify the soldier's suspicion. In other words, it was the fact of illegal possession that retroactively established the probable cause that validated the illegal search and seizure. It was the fruit of the poisonous tree that washed clean the tree itself."

I submit that the affirmation by this Court of the Garcia-Padilla decision to justify the illegal arrests made in the cases before us is a step back to that shameful past when individual rights were wantonly and systematically violated by the Marcos dictatorship. It seems some of us have short memories of that repressive regime, but I for one am not one to forget so soon. As the ultimate defender of the Constitution, this Court should not gloss over the abuses of those who, out of mistaken zeal, would violate individual liberty in the dubious name of national security. Whatever their ideology and even if it be hostile to ours, the petitioners are entitled to the protection of the Bill of Rights, no more and no less than any other person in this country. That is what democracy is all about.

FELICIANO, J., concurring and dissenting:

I concur in the result reached by the majority in the Resolution disposing of the Motion for Reconsideration.

At the same time, however, I feel compelled to dissent from certain statements made by the majority principally concerning the applicability of the "continuing crimes" doctrine to the problem of arrests without warrants. It seems clear that these statements are really obiter dicta, since they are quite unnecessary for sustaining the actual results reached in the majority Resolution. This was summarily pointed out in my very brief statement concurring in the result reached in the original Decision of the Court dated 9 July 1990. The subsequent developments in several of the cases here consolidated, which are carefully detailed in the majority Resolution, make this even clearer. Nonetheless, the majority Resolution has taken the time and trouble expressly to reiterate the "continuing crimes" doctrine as applicable in respect of warrantless arrests. Although the above statements are obiter, they have been made and, I believe, need to be addressed to some extent and the inter-relation of the "continuing crimes" doctrine with constitutional rights explored.

1. We start at the beginning, that is, the constitutional guarantee against unreasonable seizures of persons. Article III Section 2 of the Constitution reads: 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. (Emphais supplied)

Under the above provision, arrests, i.e., the constraint and seizure of the persons of individual members of society, must, as a general rule, be preceded by the securing of a warrant of arrest, the rendition of which complies with the constitutional procedure specified in Article III Section 2. Arrests made without a warrant issued by a judge after complying with the constitutional procedure, are prima facie unreasonable seizures of persons within the meaning of Article III Section 2.

2. There are, however, certain well-recognized exceptions to the norm that warrantless arrests are unreasonable seizures of persons. Those exceptions are, in our day, essentially found in Section 5(a) and (b) of Rule 113 of the Rules of Court. Section 5(a) and (b) mark out the situations where an officer of the law, or a private person for that matter, may lawfully arrest a person without previously securing a warrant of arrest. The full text of Section 5, Rule 113 follows:

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

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

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

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

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

3. Before examining the scope and implications of Section 5(a) and (b), it is important to recall that judicial interpretation and application of Section 5(a) and (b) must take those provision for what they are: they areexceptions to a vital constitutional norm enshrined in the Bill of Rights. Exceptions to such a norm must be strictly construed so as not to render futile and meaningless the constitutional rule requiring warrants of arrests before the persons of individuals may be lawfully constrained and seized. The ordinary rule generally applicable to statutory provisions is that exceptions to such provisions must not be stretched beyond what the language in which they are cast fairly warrants, and all doubts should be resolved in favor of the general provision, rather than the exception. 1 This rule must apply with special exigency and cogency where we deal, not with an ordinary statutory provision, but with a constitutional guarantee. 2 Exceptions to such a guarantee must be read with especial care and sensitivity and kept within the limits of their language so to keep vital and significant the general constitutional norms warrantless arrests. In Alvarez vs. Court of First Instance, 3 this Court, stressing that:

II. As the protection of the citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of the court. these constitutional guaranties should be given a liberal construction or a strict construction in favor of the individual, to prevent stealthy encroachment upon, or gradual depreciation of, the rights secured by them (State vs. Custer County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965; 237 Pac., 373). Since the proceeding is a drastic one, it is the general rule that statutes authorizing searches and seizures or search warrants must be strictly construed (Rose vs. St. Clair, 28 Fed. [2d], 189; Leonard vs. U.S., 6 Fed. [2d], 353; Perry vs. U.S., 14 Fed. [2d], 88; Cofer vs. State, 118 So., 613. (emphasis supplied) held that:

. . . All illegal searches and seizures are unreasonable whith lawful ones are reasonable. 4

In People vs. Burgos, 5 this Court reiterated the above rule in the following terms:

There is no such personal knowledge in this case. Whatever knowledge was possessed by the arresting officers, it came in its entirety from the information furnished by Cesar Masamlok. The location of the firearm was given by the appellant's wife.

At the time of the appellant's arrest, he was not in actual possession of any firearm or subversive document. Neither was he commit ting any act which could be described as subversive. He was, in fact plowing his field at the time of the arrest.

The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions the requirement of warrants of arrest is strictly construed. Any exception must clearly fall within the situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the rule on arrests without warrant or extend its application beyond the cases specifically provided by law. To do so would infringe upon personal liberty and set back a basic right so often vilated and so deserving of full protection. 6 (emphasis supplied)

4. Section 5(a) relates to situations where a crime is committed or attempted to be committed in the presence of the arresting officer. The fact of the occurrence of the offense, or of the attempt to commit an offense, in the presence of the arresting officer, may be seen to be the substitute, under the circumstances, for the securing of a warrant of arrest. In such situation, there is an obvious need for immediate, even instantaneous, action on the part of the arresting officer to suppress the breach of public order and to prevent further breaches then and there. Section 5(a) may, moreover, be seen to refer to overt acts constitutive of a crime taking place in the presence of the arresting officer. The term "presence" in this connection is properly and restrictively construed to relate to acts taking place within the optical or perhaps auditory perception of the arresting officer. 7 If no overt, recognizably criminal, acts occur which are perceptible through the senses of the arresting officer, such officer could not, of course, become aware at all that a crime is being committed or attempted to be committed in his presence. 8 It is elementary that purely mental or psychological phenomena, not externalized in overt physical acts of a human person, cannot constitute a crime in our legal system. For a crime to exist in our legal law, it is not enough that mens rea be shown; there must also be an actus reus. If no such overt acts are actually taking place in the presence or within the sensor perception of the arresting officer, there would, in principle, be ample time to go to a magistrate and ask for a warrant of arrest. There would, in other words, not be that imperious necessity for instant action to prevent an attempted crime, to repress the crime being committed, or to capture the doer of the perceive criminal act, the necessity which serves as the justification in law of warrantless arrests under Section 5(a).

5. Turning to Section 5 (b), two (2) elements must be coincide before a warrantless arrest may be sustained under this subsection: 1) the offense must have "just been committed" when the arresting officer arrived in the scene; and 2) the officer must have "personal knowledge" of facts indicating tha the person to be arrested has committed the offense. In somewhat different terms, the first requirement imports that th effects or corpus of the offense which has just been committed are still visible: e.g. a person sprawled on the ground, dead of gunshot wound; or a person staggering around bleeding profusely from stab wounds. The arresting officer may not ha seen the actual shooting or stabbing of the victim, and thereto the offense can not be said to have been committed "in [his] presence." The requirement of "personal knowledge" on the part of the arresting officer is a requirement that such knowledge must have been obtained directly from sense perception the arresting officer. That requirement would exclude informtion conveyed by another person, no matter what his reputation for, truth and reliability might be. 9 Thus, where the arresting officer comes upon a person dead on the street and sees a person running away with a knife from where the victim is sprawled the ground, he has personal knowledge of facts which render it highly probable that the person fleeing was the doer of the criminal deed. The arresting officer must, in other words, perceive through his own senses some act which directly connects the person to be arrested with the visible effects or corpus of a crime which has "just been committed."

6. The use of the words "has in fact just been committed" underscores the requirement that the time interval between the actual commission of the crime and the arrival of the arresting officer must be brief indeed. In the first place, the word "just" was fairly recently inserted in Section 5(b) by the 1985 Rules on Criminal Procedures, no doubt in order to underscore the point here being made. In the second place, a latitudinarian view of the phrase "has in fact just been committed" would obviously render pointless the requirement in Section 5(a) that the crime must have been committed "[in] the presence" of the arresting officer. In G.R. No. 86332, the warrantless arrest of Alfredo Nazareno 14-days after the occurrence of the killing with which he was charged along with other persons, cannot by any standard be justified under Section 5(b). In G.R. No. 81567, Dural was arrested without warrant while being treated in a hospital the day after the shooting of the policemen in which he was suspected to have been a participant. While 1-day may be substantially different from 14-days, still it must be pointed out that at the time Dural was arrested in the hospital, the killing of the two (2) policemen in Caloocan City far away from the St. Agnes Hospital in Quezon City could not reasonably be said to have been just committed. There was no showing, nor did the Court require it, that the arresting officers had been in "hot pursuit" of Dural beginning at the scene of the killing and ending the next day in the hospital.

7. It is worth noting that the requisite of "personal knowledge" on the part of the arresting officer who is determining "probable cause" right at the scene of the crime, is in a sense more exacting than the standard imposed by the Constitution upon the judge who, in the seclusion of his chambers, ascertains "probable cause" by examining the evidence submitted before him. The arresting officer must himself have "personal knowledge"; the magistrate may rely upon the personal knowledge of the witnesses examined by or for him in issuing a warrant of arrest. In the present Resolution, the majority begins with noting the requirement of "personal knowledge" in Section 5(b), but winds up in the next page with a very diluted standard of "reasonable belief and "good faith" on the part of the arresting officers. The stricter standard is properly applicable to the officers seizing a person without a warrant of arrest, for they are acting in derogation of a constitutional right. That the person unlawfully arrested without a warrant may later turn out to be guilty of the offense he was suspected of in the first place is, course, quite beside the point. Even a person secretly guilty some earlier crime is constitutionally entitled to be secure from warrantless arrest, unless he has in fact committed physically observable criminal acts in the presence of the arresting officer or hadjust committed such acts when the arresting officer burst upon the scene.

8. Examination of the utilization in the majotity Resolution of the doctrine of "continuing crimes," shows that doctrine is here being used as a substitute for the requirement under Section 5(a) that the offense "has in fact just been presence of the arresting officer arrived, but rather because the person to be arrested is suspected of having committed a crime in the future. The pertinent portion of the majority Resolution reads:

. . . Dural did not cease to be, or because less of a subversive, FOR PURPOSE OF ARREST, simply because he was, at the time of arrest, confined in the St. Agnes Hospital. . . . That Dural had shot the two (2) policemen in Caloocan City as part of his mission as a "sparrow" (NPA member) did not end there and then. Dural, given another opportunity, would have shot or would shoot other policemen anywhere as agents or representatives of organized government. It is in this sense that subversion like rebelion (or insurrection) is perceived here as a continuing offense. Unlike other so-called "common" offenses, i.e., adultery, murder, arson, etc., which generally end upon their commission,subversion and rebellion are anchored on an ideological base which compels the repetition of the same acts of lawlessness and violence until the overriding objectives of overthrowing organized government is attained. (Emphasis supplied)

9. I respectfully submit that an examination of the "continuing crimes" doctrine as actually found in our case law offers no reasonable basis for such use of the dotrine. More specifically, that doctrine, in my submission, does notdispence with the requirement that overt acts recognizably criminal in character must take place in the presence of the arresting officer, or must have just been committed when the arresting officer arrived, if the warrantless arrest it to be lawful. The "continuing crimes" doctrine in our case law (before rendition of Garcia-Padilla vs. Enrile10 does not sustain warrantless arrests of person to be arrested is, as it were, merely resting in between specific lawless and commit the moment he gets an opportunity to do so.

Our case law shows that the "continuing crimes" doctrine has been used basically in relation to two (2) problems: the first problem is that of determination of whether or not a particular offense was committed within the territorial jurisdiction of the trial court; the second problem is that of determining whether a single crime or multiple crimes were committed where the defense of double jeopardy is raised.

10. In respect of the first problem, the gist of our case law is that where some of the ingredients or elements of an offense taken place within the territorial jurisdiction of one court and some other ingredients or elements of the same offense occur in the territory of another court, (e.g., estafa or malversation) either one of the two courts has jurisdiction to try the offense. Where all of the essential elements of a crime take place within the territory of one court but "by reason of he very nature of the offense committed" the violation of the law is deemed to be "continuing," then the court within whose territorial jurisdiction the offense continues to be committed, has jurisdiction to try a person charged with such offense. In the latter case, the offense is deemed to be continuing because some or all of the elements constituting the offense occurred within jurisdiction of the second court (e.g., kidnapping and illegal detention; libel; evasion of service of sentence). The criminal acts are regarded as repeated or as continuing within the province or city where the defendant was found and arrested. 11 Clearly, overt acts of the accussed constituting elements of the crime charged must be shown to have been committed within the territorial jurisdiction of the court where he is charged.

11. Turning to the second type of problem, the question is normally presented in terms of whether one crime or multiple crimes were committed by the accused. Where the series of acts actually alleged and proven to have been committed by the accused constituted only one and the same crime, the defense of double jeopardy becomes available where a second information is filed covering acts later in the series. Upon the other hand, where the acts of the accused constituted discrete, multiple offenses, each act comprising a distinct and separate offense, the double jeopardy defense is non-available. 12 The point worth stressing is that in passing upon the issue relating to the unity or multiplicity of offense committed, the overt acts of the accused constitutive either of the single offense or of the plural offenses, must be shown.

12. My final submission, is that, the doctrine of "continuing crimes," which has its own legitimate function to serve in our criminal law jurisprudence, cannot be invoked for weakening and dissolving the constitutional guarantee against warrantless arrest. Where no overt acts comprising all or some of the elements of the offense charged are shown to have been committed by the person arrested without warrant, the "continuing crime" doctrine should not be used to dress up the pretense that a crime, begun or committed elsewhere, continued to be committed by the person arrested in the presence of the arresting officer. The capacity for mischief of such a utilization of the "continuing crimes" doctrine, is infinitely increased where the crime charged does not consist of unambiguous criminal acts with a definite beginning and end in time and space (such as the killing or wounding of a person or kidnapping and illegal dentention or arson) but rather of such problematic offenses as membership in or affiliation with or becoming a member of, a subversive association or organization. For in such cases, the overt constitutive acts may be morally neutral in themselves, and the unlawfulness of the acts a function of the aims or objectives of the organization involved. Note, for instance, the following acts which constitute prima facie evidence of "membership in any subversive association:" 13 a) Allowing himself to be listed as a member in any book or any of the lists, records, correspondence, or any other document of the organization; b) Subjecting himself to the discipline of such association or organization in any form whatsoever; c) Giving financial contribution to such association or organization in dues, assessments, loans or in any other forms; xxx xxx xxx f) Conferring with officers or other members of such association or organization in furtherance of any plan or enterprise thereof; xxx xxx xxx h) Preparing documents, pamphlets, leaflets, books, or any other type of publication to promote the objectives and purposes of such association or organization; xxx xxx xxx k) Participating in any was in the activities, planning action, objectives, or purposes of such association or organization; xxx xxx xxx

It may well be, as the majority implies, that the constitutional rule against warrantless arrests and seizures makes the law enforcement work of police agencies more difficult to carry out. It is not our Court's function, however, and the Bill of Rights was not designed, to make life easy for police forces but rather to protect the liberties of private individuals. Our police forces must simply learn to live with the requirements of the Bill of Rights, to enforce the law by modalities which themselves comply with the fundamental law. Otherwise they are very likely to destroy, whether through sheer ineptness or excess of zeal, the very freedoms which make our polity worth protecting and saving.

REGALADO, J.: Separate Opinion:

While I have heretofore concurred in the ponencia in the above-entitled cases and I reiterate such concurrence, I wish to unburden myself of some reservations on the rationale adopted in G.R. No. 86332.

It is posited in this resolution that "(a)lthough the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant was made only on 28 December 1988, or 14 days later, the arrest falls under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the police authorities came to know that Nazareno was probably one of those guilty in the killing of Bunye II."

I am afraid that there has been a misapplication of Section 5(b) of Rule 113 which, while authorizing a peace officer or a private person to effect a warrantless arrest, specifically conditions that grant of authority upon the situation "(w)hen 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."

It is significant that when the corresponding provisions of the 1964 Rules of Court were amended in the 1985 Rules of Criminal Procedure, the particular revision of paragraph (b) of the aforesaid section consisted in imposing the requirements that the person making the arrest has personal knowledge of the facts indicating that the arrestee is responsible for an offense which has just been committed.

Now, according to the resolution, "the records show that in the morning of 14 December 1988, Romulo Bunye II was killed by a group of men in Alabang, Muntinlupa, Metro Manila; that at about 5 o'clock in the morning of 28 December 1988, Ramil Regala, one of the suspects in the said killing, was arrested and he pointed to Narciso Nazareno as one of his companions during the killing of Bunye II; that at 7:20 of the same morning (28 December 1988), the police agents arrested Nazareno, without warrant, for investigation."

Since, clearly, the arresting police agents merely acted upon the information imparted by one of the suspects, Ramil Regala, the resolution has emasculated the requirement in Section 5(b) that the person making the arrest must have had personal knowledge of factual indications regarding the complicity or liability of the arrestee for the crime. Yet, that amendment requiring such personal knowledge must have been designed to obviate the practice in the past of warrantless arrests being effected on the basis of or supposed reliance upon information obtained from third persons who merely professed such knowledge or, worse, concocted such reports for variant reasons not necessarily founded on truth.

Further, and obviously as an added deterrent to the possibility that such arrest without a warrant may result from imputations based on dubious motives, it is now required that the crime must have just been committed. The recency contemplated here, in relation to the making of the warrantless arrest, is the time when the crime was in fact committed, and not the time when the crime was in fact committed, and not the time when the person making the arrest learned or was informed of such commission. Otherwise, at the risk of resorting to reductio ad absurdum, such warrantless arrests could be validly made even for a crime committed, say, more than a year ago but of which the arresting officer received information only today.

The brevity in the interval of time between the commission of the crime and the arrest, as now required by Section 5(b), must have been dictated by the consideration, among others, that by reason of such recency of the criminal occurrence, the probability of the arresting officer acquiring personal and/or reliable knowledge of such fact and the identity of the offender is necessarily enhanced, if not assured. The longer the interval, the more attenuated are the chances of his obtaining such verifiable knowledge. In the case under consideration, the obtention of information of a crime committed fourteen (14) days earlier necessarily undermines the capacity of the arresting officer to ascertain the reliability of the information he is acting upon and to acquire personal knowledge thereof after such verification.

It may be granted, as an ad hoc proposition, that the arrest of Nazareno was based on probable cause and it was not whimsical, at least, in this instance. It is correct to say that prevailing conditions affecting national security and stability must also be taken into account. However, for the reasons above elucidated, I take exception to the conclusion that the conditions in Section 5(b) of Rule 113 had been complied with in this case. It is true that the corresponding information was filed against Nazareno shortly after his arrest but that, precisely, is another cause for controversy. Definitely, if the rules on arrest are scrupulously observed, there would be no need for the usual invocation of Ilagan as a curative balm for unwarranted incursions into civil liberties.

SARMIENTO, J.: dissenting:

I reiterate my dissent. I submit that in spite of its "clarificatory" resolution, 1 the majority has not shown why the arrests in question should after all be sustained.

According to the majority, Rolando Dural (G.R. No. 815667) was validly arrested without a warrant and that his arrest was sufficient compliance with the provisions of Section 5, paragraph (b), Rule 113, of the Rules of Court. According to the majority, he, Dural, was after all committing an offense (subversion being supposedly a continuing offense) and that the military did have personal knowledge that he had committed it. "Personal knowledge," according to the majority, is supposedly no more than "actual belief or reasonable grounds . . . of suspicion," and suspicion is supposedly 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 guilty 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. 2

As I said, I dissent.

First, and as I held, subversion, as an offense punished by Executive Order No. 167, as amended by Executive Order No. 276, in relation to Republic Act No. 1700, 3 is made up of "overt acts." 4 In People vs. Ferrer 5 this Court defined "overt acts" as follows:

. . . Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge Communists in court, as the law alone, without more would suffice to secure their punishment. But the undeniable fact is that their guilt still has to be judicially established. The Government has yet to prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that they joined the Party, knowing its subversive character and with specific intent to further its basic objective, i.e., to overthrow the existing government by force, deceit, and other illegal means and place the country under the control and domination of a foreign power.

As Ferrer held, that above "overt acts" constitute the essence of "subversion," and as Ferrer has taken pains to explain, the law requires more than mere membership in a subversive organization to make the accused liable. I respectfully submit that for purposes of arrest without a warrant, that above "overt acts" should be visible to the eyes of the police officers (if that is possible), otherwise the accused can not be said to be committing any offense within the contemplation of the Rules of Court, to justify police action, and otherwise, we would have made "subversion" to mean mere "membership" when, as Ferrer tells us, subversion means more that mere membership.

I find strained that majority's interpretation of "personal knowledge," as the majority would interpret it, as no more than "actual belief or reasonable suspicion," that is, "suspicion . . . based on actual facts . . . [and] founded on probable cause, coupled with good faith . . . " 6 I submit that personal knowledge means exactly what it says — that the peace officer is aware that the accused has committed an offense, in this case, membership in a subversive organization with intent to further the objectives thereof. It is to be noted that prior to their amendment, the Rules (then Section 6) spoke of simple "reasonable ground" — which would have arguably encompassed "actual belief or suspicion . . . coupled with good faith" referred to by the majority. Section 5(b) as amended, however, speaks of "personal knowledge"; I respectfully submit that to give to "personal knowledge" the same meaning as "reasonable ground" is to make the amendment as useless exercise.

What, furthermore, we have here was a mere "confidential information" that a "sparrow man" had been wounded and was recuperating in the hospital, and that that person was Rolando Dural. Clearly, what we have is second-hand, indeed, hearsay, information, and needless to say, not personal knowledge.

I would like to point out that in the case of People vs. Burgos 7 this Court rejected a similar arrest because of lack of personal knowledge, and, as the Court held, "[w]hatever knowledge was possessed by the arresting officers came in its entirety from the information furnished by [another] . . ." 8 I do not see how We can act differently here.

I do not find the majority's reliance on the case of United States vs. Santos 9 to be well-taken. Santos involved a prosecution for coercion (against a peace officer for affecting an arrest without a warrant). Santos, however, did in fact affirm the illegality of the arrest but absolved the peace officer on grounds of good faith. Santos did not say that so long as he, the peace officer, was acting in good faith, as the majority here says that the military was acting in good faith, the arrest is valid. Quite to the contrary, Santos suggested that notwithstanding good faith on the part of the police, the arrest is nevertheless subject to question.

As far as the information leading to the arrest of Dural is concerned, the majority would quite evidently swallow the version of the military as if in the first place, there truly was an information, and that it was reliable, and that "it was found to be true;" 10 and as if, in the second place, the hospital authorities (the alleged informants) could have legally tipped the military under existing laws. We have, it should be noted, previously rejected such a species of information because of the lack of "compulsion for [the informant] to state truthfully his charges under pain of criminal prosecution." 11 Here, it is worse, because we do not even know who that informant was.

The majority is apparently unaware that under Executive Order No. 212, amending Presidential Decree No. 169, hospital establishments are required to report cases of acts of violence to "government health authorities" — not to the military.

I am concerned that if the military were truly armed with reliable information and if it did have personal knowledge to believe that Dural had committed an offense, there was no reason for the military to ignore the courts, to which the Constitution after all, gives the authority to issue warrants. As People vs. Burgos held:

More important, we find no compelling reason for the haste with which the arresting officers sought to arrest the accused. We fail to see why they failed to first go through the process of obtaining a warrant of arrest, if indeed they had reasonable ground to believe that the accused had truly committed a crime. There is no showing that there was a real apprehension that the accused was on the verge of flight or escape. Likewise, there is no showing that the whereabouts of the accused were unknown. 12

I do not likewise see how the petitioners Amelia Roque, Wilfredo Buenaobra, Domingo Anonuevo, Ramon Caspile, and Vicky Ocaya (G.R. Nos. 84581-82; 83162) could have been lawfully picked up under similar circumstances. As the majority points out, the military had (again) acted on a mere tip-the military had no personal knowledge (as I elaborated what personal knowledge means). Second, I do not think that the majority can say that since Amelia Roque, et al. "were NPA's anyway" (As Roque, et al. allegedly admitted), immediatearrests were "prudent" and necessary. As I said, that Roque, et al. were admitted "NPA's" is (was) the question before the trial court and precisely, the subject of controversy. I think it is imprudent for this Court to pass judgment on the guilt of the petitioners-since after all, and as the majority points out, we are talking simply of the legality of the petitioner's arrests. More important, that Roque, et al. "were NPA's anyway" is evidently, a mere say-so of the military, and evidently, the Court is not bound by bare say-so's. Evidently, we can not approve an arrest simply because the military says it is a valid arrest (the accused being "NPA's anyway")— that would be abdication of judicial duty and when, moreover, the very basis of the claim rests on dubious "confidential information."

According to the majority, we are speaking of simple arrests; we are not talking of the guilt or innocence of the accused. I certainly hope not, after the majority referred to Rolando Dural as a "sparrow man" and having Amelia Roque, et al. admit to being NPA's."

It is to gloss over at any rate, the nature of arrest as a restraining on liberty. It is to me immaterial that the guilt of the accused still has to be established, since meanwhile, the accused are in fact being deprived of liberty. Arrest to me, is something to crow about, even if in the opinion of the majority, it is nothing to crow about (a mere "administrative measure").

I can not, again, accept the validity of the arrests of Deogracia Espiritu or Narciso Nazareno (G.R. Nos. 85727; 86332). Espiritu was supposedly picked up for inciting to sedition, in uttering supposedly, on November 22, 1988, the following:

Bukas tuloy and welga natin . . . hanggang sa magkagulo na. 13

Espiritu however was arrested on November 23, 1988, a day later-and in no way is "inciting to sedition" a continuing offense. Obviously, the majority is not saying that it is either, but that:

. . . Many persons may differ as to the validity of such perception and regard the language as falling within free speech guaranteed by the Constitution. But, then, Espiritu has not lost the right to insist, during the trial on the merits, that he was just exercising his right to free speech regardless of the charged atmosphere in which it was uttered. But, the authority of the peace officers to make the arrest, without warrant, at the time the words were uttered, or soon thereafter, is still another thing. In the balancing of authority and freedom, which obviously becomes difficult at times, the Court has, in this case, titled the scale in favor of authority but only for purposes of the arrest (not conviction). Let it be noted that the Court has ordered the bail for Espiritu's release to be reduced from P60,000.00 to P10,000.00. 14

And obviously, the majority is concerned about whether or not Espiritu's speech was after all, protected speech, but apparently, that is also of no moment, since: (1) that is a matter of defense; (2) we are talking of mere arrests, and as far as arrests are concerned, "the Court has, in this case, titled in favor of authority," 15 and (3) we have, anyway, given a reduced bail to the accused. First, that the accused's statement is in the category of free speech is not only plain to my mind, it is a question I do not think the majority can rightly evade in these petitions without shirking the Court's constitutional duty. It is to my mind plain, because it does not contain enough "fighting words" recognized to be seditious. 16 Secondly, it is the very question before the Court—whether or not the statement in question constitutes an offense for purposes of a warrantless arrest. It is a perfectly legal question to my mind and I am wondering why we can not answer it.

What the majority has not answered, as I indicated, is that inciting to sedition is in no way a continuing offense, and as I said, the majority is not apparently convicted that it is, either. Of course, the majority would anyway force the issue: "But the authority of the peace officers to make the arrest, without warrant, at the time the words were uttered, or soon thereafter, is still another thing." 17 First, Espiritu was picked up the following day, and in no way is "the following day" "soon thereafter". Second, we would have stretched the authority of peace officers to make warrantless arrests for acts done days before. I do not think this is the contemplation of the Rules of Court.

As in the case of Burgos in People vs. Burgos, 18 Espiritu was neither "on the verge of flight or escape" 19 and there was no impediment for the military to go through the judicial processes, as there was none in the case of Burgos.

In the case of People vs. Aminnudin, 20 this Court held that unless there "was a crime about to be committed or had just been committed," and unless there existed an urgency as where a moving vehicle is involved, instant police action can not be justified.

"In the balancing of authority and freedom," states the majority, "the Court has, in this case, titled in favor of authority but only for purposes of the arrest (not conviction)." 21 It is a strange declaration, first, because it is supported by no authority (why the Court should "tilt" on the side of Government), and second, because this Court has leaned, by tradition, on the side of liberty — as the custodian of the Bill of Rights — even if we were talking of "simple" arrests.

I do not understand why this Court should "tilt" . . . the scale in favor of authority . . . in this case," 22 as if to say that normally, this Court would have tilted the scales the other way. I do not understand why these cases are apparently, special cases, and apparently, the majority is not telling us neither. I am wondering why, apart from the fact that these cases involved, incidentally, people who think differently from the rest of us.

The majority goes on:

Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant was made only on 28 December 1988, or 14 days later, the arrest falls under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the police authorities came to know that Nazareno was probably one of those guilty in the killing of Bunye II. 23

With all due respect, I do not think that the majority is aware of the serious implications of its pronouncement on individual rights (and statutory construction in general), and I feel I am appropriately concerned because as a member of the Court, I am co-responsible for the acts of my colleagues and I am afraid that I may, rightly or wrongly, be in time made to defend such an indefensible pronouncement.

Section 5(b) of Rule 113 is clear and categorical: the offense must have been "just committed" and the authorities must have "personal knowledge."

In no way can an offense be said to have been "just committed" fourteen days after it was in fact (allegedly) committed. In no way can the authorities be said to have "personal knowledge" two weeks thereafter; whatever "personal knowledge" they have can not possibly be "personal knowledge" of a crime that had "just been committed;" whatever "personal knowledge" they have is necessarily "personal knowledge" of a crime committed two weeks before.

In no way can Nazareno's arrest be said to be an arrest sanctioned by the exceptional provisions of the Rules.

I am not saying that the military can not act in all cases, and it is sheer ignorance to suppose that I am saying it, (or worse, that I am "coddling criminals"). I am not saying that a suspected criminal, if he can not be arrested without a warrant, can not be arrested at all — but that the military should first procure a warrant from a judge before effecting an arrest. It is not too much to ask of so-called law enforcers.

As it is, the majority has enlarged the authority of peace officers to act, when the Rules have purposely limited it by way of an exception, precisely, to the general rule, mandated by the Constitution no less, that arrests may be done only through a judicial warrant. As it is, the majority has in fact given the military the broadest discretion to act, a discretion the law denies even judges 24 — today it is fourteen days, tomorrow, one year, and sooner, a decade. I submit that a year, a decade, would not be in fact unreasonable, following the theory of the majority, since the military can claim anytime that it "found out only later," as the majority did not find it unreasonable for the Capital Command to claim that it "came to know that Nazareno was probably one of those guilty in the killing of Bunye II" 25—and none of us can possibly dispute it.

I would like to stress strongly that we are not talking of a simple "administrative measure" alone—we are talking ofarrests, of depriving people of liberty—even if we are not yet talking of whether or not people are guilty. That we are not concerned with guilt or innocence is hardly the point, I respectfully submit, and it will not minimize the significance of the petitioners' predicament. With respect to Wilfredo Buenaobra, I submit that the majority has, as in the cases of Amelia Roque, et al., ignored the fact that Buenaobra's alleged "admission" (actually, an uncounselled confession) was precisely, the basis for Buenaobra's arrest. It is to beg the question, I respectfully submit, to approve the military's action for the reason that Buenaobra confessed, because Buenaobra confessed for the reason that the military, precisely, pounced on him. I am not to be mistaken for prejudging Buenaobra's innocence (although it is supposed to be presumed) but I can not imagine that Buenaobra would have voluntarily proclaimed to the military that he was an NPA courier so that the military could pounce on him.

I respectfully submit that the cases Garcia vs. Padilla 26 and Ilagan vs. Enrile 27 have been better days. I do not see how this court can continuously sustain them "where national security and stability are still directly challenged perhaps with greater vigor from the communist rebels." 28 First and foremost, and as the majority has conceded, we do not know if we are in fact dealing with "Communists." The case of Deogracias Espiritu, for one, hardly involves subversion. Second, "Communism" and "national security" are old hat — the dictator's own excuses to perpetuate tyranny, and I am genuinely disappointed that we would still fall for old excuses. Third, Garcia and Ilagan rested on supposed grounds that can not be possibly justified in a regime that respects the rule of law — that the Presidential Commitment Order (PCO) is a valid presidential document (Garcia) and that the filing of an information cures a defective arrest (Ilagan). Fourth and finally, it is evident that neither "Communist threat" nor "national security" are valid grounds for warrantless arrests under Section 5(b) of Rule 113.

I most respectfully submit that Garcia and Ilagan have not only been diluted by subsequent jurisprudence (e.g., People vs. Burgos, supra), they are relics of authoritarian rule that can no longer be defended, if they could have been defended, in Plaza Miranda or before our own peers in the bar.

"What is important," says the majority, "is that every arrest without warrant be tested as to its legality, via habeas corpus proceedings." 29 I supposed that goes without saying. But it is also to patronize the petitioners and simply, to offer a small consolation, when after all, this Court is validating their continued detention. 30 With all due respect, I submit that it is nothing for which the public should be elated.

A Final Word

As I began my dissent, in this Resolution and the Decision sought to be reconsidered, I reiterate one principle: The State has no right to bother citizens without infringing their right against arbitrary State action. "The right of the people," states the Constitution, "to be secure in their persons, houses, papers, and effects against unreasonable searchers and seizures of whatever nature and for any purpose shall be inviolable . . . ." 31 "The State," the Charter likewise states, "values the dignity of every human person and guarantees full respect for human rights." 32 The Constitution states the general rule — the majority would make the exception the rule, and the rule the exception. With all due respect, this is not what constitutionalism is all about.

I submit that the "actual facts and circumstances" the majority refers to are, in the first place, doubtful, the "actual facts and circumstances" being no more than "confidential information" (manufactured or genuine, we have no way of telling) and in the second place, any information with which the military (or police) were armed could no more than be hearsay, not personal, information. I submit that the "actual facts and circumstances" the majority insists on can not justify the arrests in question under Section 5(b) of Rule 113, the rule the majority insists is the applicable rule.

Apparently, Section 5(b) is not the applicable rule, as far as Deogracias Espiritu and Narciso Nazareno are concerned; certainly, it is not the Section 5(b) I know. As I indicated, Espiritu was arrested one day after the act, allegedly, inciting to sedition; Nazareno was picked up fourteen days after it (allegedly, murder). Yet, the majority would approve the police's actions nonetheless because the police supposedly "found out only later." I submit that the majority has read into Section 5(b) a provision that has not been written there.

"More than the allure of popularity of palatability to some groups," concludes the majority, "what is important is that the Court be right." 33

Nobody has suggested in the first place, that Umil was and is a question of popularity or palatability. Umil is a question, on the contrary, of whether or not the military (or police), in effecting the arrests assailed, had complied with the requirements of law on warrantless arrests. Umil is a question of whether or not this Court, in approving the military's actions, is right.

In spite of "EDSA", a climate of fear persists in the country, as incidences of disappearances, torture, hamletting, bombings, saturation drives, and various human rights violations increase in alarming rates. In its update for October, 1990, the Task Force Detainees of the Philippines found:

An average of 209 arrested for political reasons monthly since 1988, 94% of them illegally;

Four thousand four hundred eight (4,408) political detentions from January, 1989 to September, 1990, 4,419, illegally;

Of those arrested, 535 showed signs of torture; 280 were eventually salvaged, 40, of frustrated salvage, and 109 remained missing after their arrest;

Forty (40) cases of massacres, with 218 killed; 54 cases of frustrated massacre, in which 157 were wounded; The victims belonged to neighborhood and union organizations;

Since February, 1986, 532 of those illegally arrested were women;

From January to June 1990, 361 children were detained for no apparent reason;

One million ten thousand four hundred nine (1,010,409) have been injured as a consequence of bombing, shellings, and food blockades undertaken by the military since 1988. 34

It is a bleak picture, and I am disturbed that this Court should express very little concern. I am also disappointed that it is the portrait of the Court I am soon leaving. Nonetheless, I am hopeful that despite my departure, it will not be too late.

Motions denied.

[G.R. No. 132042. February 19, 2003.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ARNOLD BACLA-AN LAPITAJE, MARIO REYES, WENDEL ARELLANO y TANIO and ROMY BALUYOS y PINGKI- AN, Accused-Appellants.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Before us for automatic review is a decision dated September 22, 1997, rendered by the Regional Trial Court of Danao City (Branch 25), the dispositive portion of which reads as follows:chanrob1es virtua1 1aw 1ibrary

"WHEREFORE, the court finds accused Arnold B. Lapitaje, Mario Reyes, Wendel Arellano, and Romy Baluyos GUILTY beyond reasonable doubt of the special complex crime of Robbery with Homicide as charged and defined by the Revised Penal Code, and hereby sentences each to suffer the penalty of reclusion perpetua to death.

"Accused are hereby ordered to pay jointly and severally the sum of P1,210.00, the remaining unrecovered stolen money, unto private complainant Domingo Colonia.

"No other damages are proved in court.

"SO ORDERED." 1 (Emphasis supplied) On January 13, 1994, an Information was filed before the trial court against Arnold Bacla-an Lapitaje, Mario Reyes, Wendell Arellano y Tanio and Romy Baluyos y Pingki- an for Robbery with Frustrated Homicide 2 to which they all pleaded not guilty. Despite timely medical attention, victim Nelson Saavedra died by reason of which the Information was amended to Robbery with Homicide. The Amended Information reads as follows:jgc:chanrobles.com.ph

"That on or about October 31, 1993 at around 7:30 o’clock in the evening, at Barangay Catmondaan, Municipality of Catmon, Province of Cebu, Philippines and within the jurisdiction of this Honorable Court, the said accused, conspiring and confederating together with others whose real names and present whereabouts are still unknown and helping one another did then and there willfully. unlawfully and feloniously, with intent of gain and by means of force, violence and intimidation, to wit: by entering the store of Domingo Colonia, and once inside held up the owner at gun point and thereafter take, steal and carry away cash money worth P2,000.00 belonging to the said Domingo Colonia against his will, to the damage and prejudice of said owner in the sum of P1,210.00 (as the amount of P790.00 was recovered) and shot one NELSON SAAVEDRA in their escape, thereby inflicting wounds and despite timely medical intervention the said wounds caused his death at the Chong Hua Hospital in Cebu City on February 8, 1994 where he was medically treated for several months.

"Contrary to law." 3

All accused pleaded not guilty to the Amended Information. Trial ensued.

The prosecution presented oral, documentary and real evidence.

Offended party Domingo Colonia testified as follows: On October 31, 1993, at about 7:30 o’clock in the evening, three unmasked armed men barged inside his store. Two of the men pointed firearms at him, one at his forehead, the other at his nape. They introduced themselves as members of the New People’s Army (NPA) asking for aid. He recognized accused Arnold Bacla-an Lapitaje who used to deliver edible oil to his store and was a customer in his tailoring shop. He saw Arnold go to the kitchen and point a firearm at his wife. The man who pointed a firearm at his nape opened the drawer of the table, took the coins amounting to P1,000.00, and took the contents of his wallet which amounted to around P1,000.00. When his wife shouted for help, neighbors came rushing to their aid, prompting the men to leave hastily. After the three men left, they heard gunfires. He learned that the fleeing robbers shot one of his neighbors, Nelson Saavedra, who was rushed by other bystanders to the nearest hospital. The following morning, a dead person was discovered at Sitio Bakhaw in Barangay Catmondaan, Municipality of Catmon, Cebu. Found in the dead man’s belongings were assorted coins and bills amounting to P790.00 wrapped in a small towel, a .38 caliber firearm with two live ammunitions and an empty shell. He recognized the deceased as the person who poked a firearm at his forehead the night before. When asked to identify the persons apprehended and detained in jail in Catmon, he recognized accused Arnold Lapitaje. 4

Rizalina Ares testified as follows: At around 7:30 o’clock in the evening of October 31, 1993, she met three persons coming from the store of Domingo Colonia. One was wearing a colored short sleeve polo, another was wearing a long sleeve fatigue shirt and the last one wore a green shirt. Shortly thereafter, she heard gunfires. She found a neighbor, Nelson Saavedra, who was wounded. She and a brother of the victim rushed the victim to the hospital. The next morning, she learned from Domingo that he was robbed. Later, Rizalina went to the municipal hall. She was able to identify accused Mario Reyes and Arnold Lapitaje, as the two men she met the night before through the t-shirts worn by them. Rizalina said that the person who was found dead the morning after the robbery was the one wearing a green shirt whom she also met that night while she was walking towards Domingo’s store. 5

Fred Ares testified: On the night in question, he heard a woman’s voice coming from the highway. When he proceeded towards the highway, he met some of his neighbors who told him about the fleeing robbers. As he directed his gaze towards the direction pointed by his neighbors, he saw a parked taxi marked "Aaron." A speeding Hi-Ace van then arrived. Military men donning firearms alighted from the van and approached the taxi. The military men held the driver of the taxi, a man seated in the first seat and another man about to enter the taxi. The three men who were held by the military were recognized by Fred in the courtroom as the accused Romy Baluyos, Wendel Arellano and Arnold Lapitaje. 6

Cesar Roldan testified as follows: On the night of October 31, 1993, he was in the house of his uncle located 50 meters away from the place of Domingo when he heard explosions. He ran towards the road where he saw three persons with pistols, two of whom he identified in the courtroom as accused Mario Reyes and Arnold Lapitaje. The third man happened to be the person found dead the morning after the robbery. He recognized the three men that night because of the illumination coming from the fluorescent lamp along the road. Mario Reyes wore a fatigue shirt, Arnold Lapitaje donned an ordinary shirt the color of which Cesar could no longer recall and the third man was wearing a green shirt. Cesar was more than an arm’s length from the three men with pistols who proceeded towards the direction of Sitio Bakhaw in Catmondaan coming from the house of Domingo Colonia. As Cesar made his way towards the place of Domingo, he saw Nelson Saavedra lying prostrate on the ground. 7

SPO2 Calixto Nuñeza testified that: he proceeded to the national highway on his motorcycle upon hearing cries for help from his neighbors, at a distance of around 10 meters, he saw a Hi-Ace van with Air Force men as passengers blocking a taxi marked "Aaron" ; when he introduced himself as a person in authority, Mauro Oarga who identified himself as a colonel, turned over to him the persons of accused Romy Baluyos, Arnold Lapitaje and Wendel Arellano; Oarga and his men likewise turned over to him a .22 caliber revolver magnum, five live ammunitions, one empty shell and a hand grenade which was allegedly recovered under the front seat of the taxi much later; he recognized accused Arnold Lapitaje since the latter used to deliver edible oil in their place; he also recognized Wendel Arellano who used crutches, and, Romy Baluyos, as the driver of the taxi; with the help of some barangay tanods, he brought the three men to the police station for proper investigation; early in the morning of the following day, a dead person, recognized by Domingo Colonia as one of the robbers, was found dead; said person may have been killed by the civilian volunteers; in the meantime, the articles recovered by Oarga and his men were submitted to the National Bureau of Investigation (NBI), Central Visayas Regional Office at Cebu City for ballistic examination. 8

A chemical analysis of the paraffin casts taken from the hands of accused Arnold Lapitaje and Mario Reyes yielded the following results:jgc:chanrobles.com.ph

"1. POSITIVE result for the presence of gunpowder residues on both hand casts taken from MARIO REYES.

"2. NEGATIVE result for the presence of gunpowder residue on both hand casts taken from ARNOLD LAPITAJE." 9

Bonifacio Ayag, a ballistic expert of the NBI, testified that he had conducted a ballistic examination on the specimens submitted to their office upon letter request of the PNP, Catmon, Cebu and that his findings, contained in his ballistic report, are as follows:jgc:chanrobles.com.ph

"Comparative examinations made between the evidence empty shells marked ‘AS’, ‘AS-I’, ‘AS-2’ and the test shells fired from PALTIK" (COLT) REVOLVER caliber .38 without serial number, marked EF (X on the trigger guard) and paltik (S&W) revolver caliber .22 magnum, SN_11155 (X on the trigger guard) revealed the following results:jgc:chanrobles.com.ph

"a) Evidence empty shells marked ‘AS-A1’ and ‘AS-2’ and the test shells fired from PALTIK (COLT) REVOLVER CALIBER .38 without serial number, marked ‘EF’ (X on the trigger guard) gave POSITIVE results; said evidence shells were fired from this particular firearm.

"b) Evidence empty shells marked ‘AS’ and the test shells fired from PALTIK (S&W) REVOLVER CALIBER .22 MAGNUM, SN — 11155 (X on the trigger guard) gave positive results; said evidence shell was fired from this particular firearm." 10 Dr. Wayben Briones testified: He treated Nelson Saavedra who was admitted at the Chong Hua Hospital in Cebu City for multiple injuries on November 1, 1993. Nelson had a gunshot wound located at the right neck injuring the thyroid gland. The wound penetrated the scapular area and also injured the spinal cord which caused Nelson to be paralyzed from the neck to the lower part of his body. Nelson became bedridden in the hospital and developed bedsores but due to financial constraints, he went home on December 7, 1993. He returned to the hospital on January 27, 1994 but died on February 8, 1994 from multiple organ failures caused primarily by the gunshot wound on the neck. 11

Lt. Col. Mauro Oarga, an officer of the Philippine Air Force, testified: On October 31, 1993, he and his companions had a beach activity at Catmondaan, Catmon, Cebu. On their way to Catmon, they saw "four" persons running towards a waiting taxi. Finding the actuations of the men to be suspicious, he instructed his driver to overtake the taxi and asked his men to disembark for the purpose of conducting a search on the taxi as well as on the "four" persons who had already boarded the taxi. 12 Accused driver Romy Baluyos and Wendel Arellano were among the persons on board the taxicab. Their body search on the "four" persons as well as on the driver of the taxi failed to yield anything but a search conducted on the taxi produced a .22 caliber revolver with five ammunitions and one empty shell found under the front seat of the taxi. A hand grenade was also discovered at the back portion of the vehicle. Although it was already dark at the time, the group was aided in their search by the headlights of the van which were switched on. Upon arrival of PNP operatives, he turned over the five persons as well as the articles recovered from the taxi. 13

Sgt. Rogelio Castro testified that: while they were on their way home from Catmondaan their commanding officer, Lt. Col. Oarga ordered the driver of the vehicle to block a certain taxi; they disembarked from their vehicle upon instructions of Lt. Col. Oarga who told them to conduct a search on the taxi; they found the driver, who he could not recognize because it was dark, and, a person with an amputated leg seated in front of the taxi; during his search, Castro saw a . 22 caliber firearm under the front seat of the taxi where the man with amputated leg was seated; he gave the firearm to Lt. Col. Oarga who handed it over to SPO2 Nuñeza, a member of the PNP of Catmon, who arrived at the scene. 14

The accused refuted the evidence of the prosecution through the testimonies of their witnesses —

Arnold Lapitaje testified: He was a hired helper tasked to collect payments from customers of edible oil supplied by his employer. On October 31, 1993 at around 8:30 o’clock in the evening, he was at Catmondaan supposedly to collect payments from his regular customers, Domingo Colonia and a certain Fredo. He was not able to meet either of the two because Domingo’s store was already closed at the time and Fredo was not around. Arnold thought of waiting for Fredo but since he was already hungry, he took his supper at the market place near the seashore. Suddenly, an explosion was heard coming from the highway causing the people to scamper away. Fearing for his safety, he went to one of the houses near the marketplace and continued eating his supper after which he proceeded to the highway to wait for a passenger vehicle bound for Cebu City. It was while waiting for a passenger vehicle that he learned from a group of women about some intruders who barged inside the house of Domingo Colonia and introduced themselves as members of the NPA. When he boarded an Isuzu elf vehicle, a member of the CAFGU (Civilian Armed Forced Geographical Unit) saw him and ordered him to alight from the vehicle. A policeman named Ceniza later arrived and brought him to the municipal hall where he was mauled so as to force him to reveal the identity of the persons involved in the robbery. He had nothing to reveal since he did not know the robbers. As a result of the mauling, he sustained injuries which caused him to have difficulties in standing up and walking. Inside the jail, he met accused Romy Baluyos and Wendel Arellano. Accused Mario Reyes was brought to the jail much later. The policemen told him (Arnold) that Mario identified him as one of the robbers but when confronted, Mario denied having implicated Arnold. The following day, the policemen brought him to Km. 47 where he was again asked to reveal the names of the persons who robbed the house of Domingo Colonia. When he denied any participation in the robbery, he was mauled and tied to an ipil-ipil tree by the policemen, some of whom he recognized as Calixto Nuñeza, Bravio and Ares. Although bribed with P5,000.00 to reveal the names of the robbers, he insisted that he did not know the robbers. Much later, he and Mario were brought to the police headquarters at Gorordo Avenue, Cebu City for examination where the policemen poured warm water into their hands. 15

Arnold further testified that Domingo might have implicated him as one of the robbers because of an incident wherein he accidentally spilled some of the edible oil that he was delivering in Domingo’s store which caused some sacks of rice to get wet; that Domingo asked him to replace the spilled edible oil but he refused which angered Domingo. 16

Accused Wendel Arellano testified: On October 31, 1993, at around 2:30 o’clock in the afternoon, after he had just bought a towel from the White Gold Store in Cebu City, he chanced upon his cousin Mario Albarena. After a brief conversation, he acceded to his cousin’s invitation to go to Hagnaya so that the latter can catch a boat heading for Bantayan, Cebu. His cousin hired a taxi and upon reaching Hagnaya, the taxi driver was made to wait while they had some snacks. Afterwards, his cousin boarded the boat bound for Bantayan while he went back to the waiting taxi which was to take him back to Cebu City. The taxi left Hagnaya at around 5:45 o’clock in the afternoon. When they reached Catmondaan at around 7:30 in the evening, the taxi driver stopped the taxi near a lighted post to fill the overheated engine with water. While the driver opened the hood of the car, three persons suddenly boarded the taxi and told him (Wendel), "Do not be afraid, Bay, because we have here a wounded person and we wanted only this wounded person to board this taxi. We are NPAs." 17 Upon returning to the taxi, the driver was startled to find three other persons on board and he moved backward. Nevertheless, the driver went back to his seat after the man told him that they wanted to load a wounded person. Before the driver could even start moving the taxi, a Hi-Ace van stopped in front of the taxi. Armed persons alighted from the van. One of the supposed NPAs told the driver to start the taxi but in his confusion, the driver maneuvered the taxi towards the rear end of the van. The three men jumped off the taxi and ran away leaving him and the taxi driver behind. The men from the van who identified themselves as members of the Air Force, arrested him and the taxi driver whose name he later came to know as Romy Baluyos. A search conducted on the taxi failed to yield anything. Later, an armed person named Nuñeza arrived to whom the Air Force men entrusted him and Romy. Nuñeza then brought them to the police station and locked them inside the jail. Two other persons arrived in jail whose names he later came to know as Arnold Lapitaje and Mario Reyes. They were implicated in the robbery at Catmondaan although they were not among the persons who jumped off the taxi. At around 2:00 o’clock in the morning of November 1, 1993, Arnold was fetched by policemen. When Arnold returned, he saw some bruises on Arnold. On the same day, Domingo Colonia happened to be in the municipal hall. Domingo was surprised to see Arnold and asked the latter what he was doing there. Arnold asked for help from Domingo saying that he was being implicated in the robbery but a policeman pulled Domingo away. 18

Wendel further testified that he could not have been seen running towards the taxi because his leg had been amputated in an accident prior to the incident in question; that the case which he had filed in relation to the accident causing his leg to be amputated is still pending in Regional Trial Court, Branch 8, Cebu. 19

Accused Romy Pingkian Baluyos testified: He had been a taxi driver for more than twenty years. On October 31, 1993, at around 2:30 o’clock in the afternoon, a man boarded the taxi together with another man whose leg was amputated. They arrived at Hagnaya, Cebu at around 5:30 o’clock in the afternoon. His passengers made him wait while they had a merienda. After thirty minutes, the man with the amputated leg returned and informed him that they were to proceed back to Cebu City. Before reaching Bogo, Cebu, the taxi had a flat tire. He had the tire vulcanized after which they proceeded on their way. Sometime later, the engine of the taxi overheated, prompting him to park the taxi at a well lit portion of the road. He refilled the radiator with water which he got from the baggage compartment. When he returned to the driver’s seat, there were already three men inside. He was told not to worry, that they were good persons and that they are NPAs with a wounded companion. As Romy started the engine of the taxi, a Hi-Ace van, with armed men on board, stopped in front of the taxi around 25 meters away, prompting the three men who had just boarded the taxi to jump off. The armed men who turned out to be members of the military, alighted from the van, arrested him and his passenger with the amputated leg, identified later as Wendel Arellano. The armed men searched the taxi but their search proved to be fruitless. When a policeman arrived, they turned him and Wendel over to the policeman. The policeman brought him and Wendel to the Municipal Hall of Catmon, Cebu where they were detained. Another man whose name they later came to know as Arnold Lapitaje was brought in jail. Arnold said that he was a suspect in a robbery which occurred in Catmondaan. Later, another person by the name of Mario Reyes was brought inside the jail. Mario had bruises and contusions all over his face. Arnold and Mario were not among the persons who jumped off from the taxi he was driving on the night of his arrest. He came to know Domingo Colonia only on November 1, 1993 when the latter, upon seeing them all in jail said to Arnold, "Nold, you are here?" 20

Accused Mario Reyes testified that: on October 29, 1993, he was at Medellin, Cebu in the company of his employer, Bernardino Sabal, who is engaged in the business of rattan poles; Sabal returned to Cebu City ahead of him instructing him to collect payments from debtors in Mandaue City; on October 31, 1993, he headed for Cebu City on board a passenger jeepney; at around 8:00 o’clock in the evening, the jeepney stopped at a check point in Catmondaan and all the passengers were made to alight by the members of the PNP and the CAFGU; they were bodily searched and asked to produce a "cedula" ; he was held by the PNP despite his protestations and was brought to the police station in Catmon, Cebu after being harmed by angry apprehenders; there were already four persons in jail whose names he later came to know as Jose Jumao-as, Wendel Arellano, Romy, Baluyos and Arnold Lapitaje; while he was in jail, he met Domingo Colonia who was surprised to see Arnold in detention; he had fired a gun a number of times, the last of which was on October 15, 1993 when he fired a gun owned by the military in the mountains of Sagaboy, Mati, Davao Oriental. 21

Bernardino Sabal corroborated the testimony of accused Mario Reyes on certain matters. He testified that: he hired Mario as a worker in his rattan business in Davao Oriental; on October 15, 1993, he and Mario went to Cebu City to sell rattan poles; after a week, they received an invitation from Pablo Inot to go to Medellin, Bogo, Cebu where the latter was engaged in selling rattan and fishing business; he and Mario arrived at Medellin at around 2:00 o’clock in the afternoon; he had to leave the following day for Davao; since Mario was still enjoying himself, he allowed Mario to stay behind but with the instruction that Mario should collect payments without delay from debtors in Mandaue City; unfortunately, Mario was imprisoned and never got to follow him to Davao; he learned from Mario when he visited him in jail that when Mario was on his way to Cebu on board a passenger jeepney, he was told to alight from the vehicle and produce an identification card as well as a community tax receipt at a check point in Catmon, Cebu; although Mario was able to show his community tax receipt, he was ordered to stay and forced to accompany the apprehending officer. 22

The trial court held:jgc:chanrobles.com.ph

"By the evidence so presented by the prosecution, the Court finds that all accused acted in concert in committing the act. The Court is convinced that Arnold B. Lapitaje who is familiar with complainant Domingo Colonia at Catmon Daan, Cebu, was the lead man. The Court portrays a situation that it was the two accused Mario Reyes and Arnold Lapitaje who barged into the house and pointed the gun to complainant and wife. That the two accused Wendel Arellano and Romy Baluyos were watchmen outside and that after the robbery and upon fear of reprisals from neighbors who responded to the shout for help of the wife of complainant, the four accused went hurriedly to the waiting taxi on the highway. Such fact of the four running towards the taxi was duly testified by prosecution witness Col. Oarga who, seeing the four rushing to the waiting taxi in suspicious manner, caused their Hi-Ace Van to block the taxi. Thus, the arrest of the four accused and the search on the taxi.

"Both evidence considered, the Court finds overwhelmingly that the four accused acted in concert to commit the act of robbery with homicide, and should be responsible therefore (sic).

"x x x

"The Court finds no merit the defense of alibi and general denials of accused. The positive identification by prosecution witnesses upon the persons of the accused as perpetrator of the crime negates all allegations "that accused were at some other place at the time of the commission of the offense or that they did not commit the offense as charged." 23 and found all accused guilty of Robbery with Homicide and imposing a penalty of "reclusion perpetua to death." The imposition of said penalty is erroneous and inappropriate. 24 But because of the possibility that death could be the correct imposable penalty, the Court en banc entertained the automatic review of the decision of the trial court. Hence, herein automatic review pursuant to Article 47 of the Revised Penal Code, as amended.

In their Brief, appellants raise the following Assignment of Errors:jgc:chanrobles.com.ph

"I. The trial court erred in finding that appellants Wendel Arellano and Romy Baluyos were in cahoots with the other appellant Arnold Lapitaje and Mario Reyes in the perpetration of the crime despite the existence of exculpatory evidence warranting the acquittal of the first duo. "II. The trial court erred in relying on the vulnerability of the defense evidence rather than on the strength of the prosecution evidence.

"III. The trial court erred in not finding that the arrest of all appellants were illegal and the subsequent alleged recovery of incriminatory evidence presented against the latter was a product of a poisonous tree, hence inadmissible in evidence."25cralaw:red

The Solicitor General filed the Brief for Plaintiff-Appellee with Manifestation and Motion recommending that the judgment convicting Wendel Arellano and Romy Baluyos be reversed and set aside, their guilt not having been proven beyond reasonable doubt; and, that the judgment convicting Arnold Lapitaje and Mario Reyes be affirmed with the modification that the penalty of reclusion perpetua should be imposed upon them in the absence of any aggravating circumstance in the commission of the crime charged.

We uphold appellee’s recommendations insofar as appellants Wendel Arellano and Romy Baluyos are concerned, the same being in accordance with the evidence presented by the prosecution and the defense. Both should be absolved from liability.

The well-settled rule is that the trial court’s findings on the credibility of witnesses and their testimonies are accorded great weight and respect, in the absence of any clear showing that some facts or circumstances of weight or substance which could have affected the result of the case have been overlooked, misunderstood or misapplied." 26

After a painstaking review of the prosecution evidence, the Court found certain facts and circumstances of such great weight that the trial court overlooked and misappreciated or misapplied, as follows:chanrob1es virtual 1aw library

1. The trial court had erroneously given credence to the testimony of Lt. Col. Oarga who testified that he had seen four men running towards a waiting taxicab; and that the four who boarded the taxi were apprehended together with the driver. On this basis, the trial court hastily concluded that Wendel and Romy acted as lookouts while Arnold and Mario robbed Domingo’s house and that after the robbery, the four ran towards the waiting taxi. The other prosecution witnesses consistently and unequivocably belied the testimony of Lt. Col. Oarga.

Prosecution witness Fred Ares categorically testified that Oarga’s men held only three persons: the driver of the taxi, the man with crutches and another who was still about to enter the taxi. 27 Fred Ares further clarified that Wendel was just inside the taxi and was not one of the persons who were running towards the taxi. 28 The testimony of Fred Ares is corroborated by Rizalina Ares who testified that she met three persons coming from the store of Domingo Colonia. 29 Another prosecution witness, SPO2 Nuñeza testified that Oarga turned over to him only three persons, namely, the driver Romy Baluyos, Wendel Arellano and Arnold Lapitaje.

2. The trial court miserably failed to consider that appellant Wendel had a physical disability. Wendel could not have ran together with the other robbers because he had an amputated leg and walked on crutches.

3. The firearm and live ammunitions allegedly found under the front seat of the taxi cannot be used as evidence against Wendel and Romy for they were taken as a result of an illegal search and seizure which will be discussed forthwith.

Thus, Oarga’s testimony of the event leading to the arrest of appellants is not accurate and could not be a valid basis for the conviction of appellants Wendel and Romy.

Even if the defense of general denial posited by Wendel and Romy is uncorroborated, the trial court committed an error in disregarding said defense considering that the evidence of the prosecution failed to establish the participation of both accused Wendel and Romy in the commission of the crime charged. As the Court has enunciated in People v. Ladrilio:jgc:chanrobles.com.ph

". . . . The rule that this Court should refrain from disturbing the conclusions of the trial court on the credibility of witnesses, does not apply where, as in the instant case, the trial court overlooked certain facts of substance or value which if considered would affect the outcome of the case; or where the disputed decision is based on misapprehension of facts.

"Denial and alibi may be weak but courts should not at once look at them with disfavor. There are situations where an accused may really have no other defenses but denial and alibi which, if established to be the truth, may tilt the scales of justice in his favor, especially when the prosecution evidence itself is weak." 30 and in People v. Albao:jgc:chanrobles.com.ph

". . . denial and alibi, while inherently weak, assume relevance when the evidence of the prosecution linking the accused to the crime is inconclusive." 31

With respect to appellant Arnold: By the testimonies of prosecution witnesses Fred Ares and SPO2 Nuñeza, it is established that Arnold was arrested by Lt. Col. Oarga. However, it must be stated that the warrantless arrest of appellant Arnold together with Wendel and Romy was not lawful. Oarga testified that he caused the arrest of "four men" running towards the taxi since they were acting suspiciously. However, Oarga did not elaborate why he thought said men were acting suspiciously.

Rule 113 of the Rules on Criminal Procedure provides:jgc:chanrobles.com.ph

"Sec. 5. Arrest without warrant; when lawful — A peace officer or a private person may, without a warrant, arrest a person:jgc:chanrobles.com.ph

"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 the 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 a place where he is serving final judgment or temporarily confined while his case is pending or has escaped while being transferred from one confinement to another."cralaw virtua1aw library

None of the aforesaid circumstances were attendant in the case at bar. The "four men" were not prisoners who had just escaped from a penal establishment. Oarga did not testify that the "four men" he had seen running towards the taxi have earlier committed or were actually committing or attempting to commit an offense in his presence.chanrob1es virtua1 1aw 1ibrary

Nevertheless, considering that appellant Arnold, had entered his plea and actively participated in the trial of the case, he submitted to the jurisdiction of the trial court thereby curing any defect in his arrest. 32 Legality of an arrest affects only the jurisdiction of the court over his person. 33

In spite of said waiver, the firearm and live ammunition taken from the taxi during the search, cannot be admitted in evidence against appellants because they were seized during a warrantless search which was not lawful. 34

A waiver of an illegal warrantless arrest does not also mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest. The following searches and seizures are deemed permissible by jurisprudence: (1) search of moving vehicles (2) seizure in plain view (3) customs searches (4) waiver or consent searches (5) stop and frisk situations (Terry Search) and (6) search incidental to a lawful arrest. The last includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected with a valid warrant of arrest, the Rules of Court recognize permissible warrantless arrests, to wit: (1) arrests in flagrante delicto, (2) arrests effected in hot pursuit, and, (3) arrests of escaped prisoners. 35 Thus, the search cannot be justified on the ground that it involves search of a moving vehicle. Warrantless search of a moving vehicle is allowed only when it is not practicable to secure a warrant because the vehicle carrying the prohibited drugs can be quickly moved out of the area or jurisdiction in which the warrant must be sought. We have already clarified in a number of cases that this exception in no way gives the police officers unlimited discretion to conduct warrantless searches of automobiles in the absence of probable cause. 36 When a vehicle is stopped and subjected to an extensive search, such warrantless search has been held to be valid as long as the officers conducting the search have reasonable or probable cause to believe before search that they will find the instrumentality or evidence pertaining to a crime, in the vehicle to be searched.

As we have earlier found, Oarga and his men did not have personal knowledge of the crime that had just been committed and therefore had no probable cause to believe that they will find the instruments or evidence pertaining to the crime. Consequently, the firearms, empty shell and live ammunitions as well as the hand grenade allegedly found during the search cannot be admitted as evidence.

The above notwithstanding, the trial court did not err in finding both appellants Arnold Lapitaje and Mario Reyes to be the perpetrators of the crime of robbery. Despite the inadmissibility of the guns and ammunitions, both appellants were positively identified by the prosecution witnesses. At the time of the incident, Domingo instantly recognized Arnold who pointed a firearm at his wife. He recognized Arnold although the robbery happened at nighttime because the place was lit by a fluorescent bulb and all three men who entered the store were not wearing masks. Aside from Domingo Colonia, Cesar Roldan positively identified appellants Arnold and Mario as two of the three men, armed with pistols, who he saw fleeing from the store. Cesar had no motive to testify against appellants. He categorically testified that he saw Mario with a pistol in one hand while running towards the direction of Sitio Bakhaw, Domingo Colonia’s place. This is corroborated by the result of the Chemistry Report conducted on appellant Mario which showed the presence of gunpowder residue on both of his hands.

The fact that appellant Arnold did not have any gunpowder residue on both of his hands does not demolish the fact that prosecution witness Domingo Colonia had positively identified Arnold as one of those who robbed his store and the one who pointed a gun at his wife. It simply means that Arnold had not fired the gun he was holding.

However, although appellant Mario may have fired the gun he was holding at the time of robbery, there is no direct or sufficient circumstantial evidence to prove that he or anyone of the appellants had shot deceased Nelson Saavedra or that the latter was shot on the occasion of the robbery. The trial court itself was ambivalent on the matter, to wit:jgc:chanrobles.com.ph

"While prosecution evidence pointed to deceased Nelson Saavedra as one among the three who came from the house of complainant Domingo Colonia, no convincing evidence is shown that the deceased is one among the perpetrators of the robbery as charged. Possibility may rise that said deceased Nelson Saavedra may have responded to the shout for help by the wife of complainant or being one of the perpetrators of the crime. At any rate, no such intervention, criminally or civilly, was ever interposed by relatives of the deceased. But the evidence on record showed that deceased Nelson Saavedra died during the occasion of robbery." 37

While Saavedra was indeed shot on the date of the incident, the only evidence connecting appellants Arnold and Mario to the gunshot wound sustained by Saavedra were the facts that they were seen by prosecution witnesses Rizalina Ares and Cesar Roldan running away from Domingo’s store with guns; that gunshots were heard and right after that, Rizalina Ares saw a wounded Saavedra. Rizalina did not actually see the shooting. Neither did any of the other prosecution witnesses testify that they saw any of the appellants shoot Saavedra, or that he was shot while the robbers were fleeing from the store. Notwithstanding the presence of the neighbors who rushed to their aid after hearing the cries for help of the wife of Domingo, the prosecution failed to present any one who might have actually seen how the shooting of Saavedra took place. There was no proof that the gunshot wound which caused the subsequent death of Saavedra came from any of the guns used by the robbers. The prosecution failed to connect the results of the ballistic examination of the guns confiscated by Lt. Col. Oarga to the gunshot wound sustained by the victim. Also, the guns were not admissible in evidence. Thus, there is not enough circumstantial evidence to support the finding that appellants Arnold and Mario should be held responsible for the death of Saavedra. The prosecution evidence failed to prove circumstances that constitute an unbroken chain that led to one fair and reasonable conclusion that points to said appellants, to the exclusion of all others, as the persons guilty of homicide perpetuated on the occasion of, before, during, or after the commission of the crime of robbery. 38

Consequently, appellants Arnold Lapitaje and Mario Reyes should have been found guilty only of the simple crime of Robbery under paragraph 5, Article 294 of the Revised Penal Code which prescribes a penalty of prision correccional in its maximum period to prision mayor in its medium period ranging from four years, two months and 1 day up to ten years.

That the robbery was committed with the aid of armed men is established by the positive testimonies of prosecution witnesses Domingo Colonia, Rizalina Ares and Cesar Roldan that appellants Arnold and Mario used firearms. It is a generic circumstance under paragraph 8, Article 14 of the Revised Penal Code. However, the Amended Information did not specifically allege said aggravating circumstance. Although in the narration of how the crime was committed, it is alleged that appellants "held up the owner at gunpoint", the same is not a substantial compliance of Sections 8 & 9, Rule 110 of the Revised Rules on Criminal Procedure, to wit:jgc:chanrobles.com.ph

"SEC. 8. Designation of the offense. — The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.

"SEC. 9. Cause of the accusation. — The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment."cralaw virtua1aw library

In People v. Costales, the Court held that aggravating or qualifying circumstance must be expressly and specifically alleged in the complaint or information; otherwise, it cannot be considered by the trial court, even if proved during the trial. 39 The above-quoted Rules took effect on December 1, 2000, or after the subject crime of Robbery has been committed. In consonance with Article 22 of the Revised Penal Code, the said Rules are given retroactive effect because they are beneficial to the appellants. Thus, the Court will not take into consideration the aggravating circumstance that the crime was committed with the aid of armed men.

Applying the Indeterminate Sentence Law, one degree lower is arresto mayor in its maximum period to prision correccional in its medium period or four (4) months and one (1) day to four (4) years and two (2) months. With no mitigating or aggravating circumstance, the imposable penalty may be taken from the period of one (1) year, seven (7) months and eleven (11) days to two (2) years, ten (10) months and twenty (20) days of prision correccional, for the minimum period, and from six (6) years, one (1) month and eleven (11) days to eight (8) years and twenty (20) days of prision mayor, for the maximum period.

Furthermore, appellant Arnold Bacla-an Lapitaje and Mario Reyes should be ordered to pay jointly and severally, to Domingo Colonia, the amount of P1,210.00, representing the unrecovered stolen money.

WHEREFORE, the decision of the Regional Trial Court of Danao City (Branch 25) is AFFIRMED WITH MODIFICATIONS:chanrob1es virtual 1aw library Accused-appellants Arnold Bacla-an Lapitaje and Mario Reyes are found guilty beyond reasonable doubt of the simple crime of Robbery and applying the Indeterminate Sentence Law, without any mitigating or aggravating circumstance, they are sentenced to suffer the penalty of two (2) years and ten (10) months of prision correccional, as the minimum to eight (8) years and twenty (20) days of prision mayor, as the maximum. They are also held jointly and severally liable to pay the sum of P1,210.00 to Domingo Colonia.

Accused-appellants Romy Baluyos and Wendel Arellano are ACQUITTED, their guilt not having been proven beyond reasonable doubt. The Director of the Bureau of Corrections is ORDERED to implement this Decision forthwith and to INFORM the Court within five (5) days from receipt hereof, the date when appellants were actually released from confinement.chanrob1es virtua1 1aw 1ibrary

Costs de oficio.

SR. INSP. JERRY C. VALEROSO, G.R. No. 164815

Petitioner,

Present:

YNARES-SANTIAGO, J.,

Chairperson,

- versus - CHICO-NAZARIO,

VELASCO, JR.,

NACHURA, and

PERALTA, JJ.

COURT OF APPEALS and Promulgated:

PEOPLE OF THE PHILIPPINES,

Respondents. September 3, 2009

RESOLUTION

NACHURA, J.:

For resolution is the Letter-Appeal[1] of Senior Inspector (Sr. Insp.) Jerry C. Valeroso (Valeroso) praying that our February 22, 2008 Decision[2] and June 30, 2008 Resolution[3] be set aside and a new one be entered acquitting him of the crime of illegal possession of firearm and ammunition.

The facts are briefly stated as follows:

Valeroso was charged with violation of Presidential Decree No. 1866, committed as follows:

That on or about the 10th day of July, 1996, in Quezon City, Philippines, the said accused without any authority of law, did then and there willfully, unlawfully and knowingly have in his/her possession and under his/her custody and control

One (1) cal. 38 “Charter Arms” revolver bearing serial no. 52315 with five (5) live ammo.

without first having secured the necessary license/permit issued by the proper authorities.

CONTRARY TO LAW.[4]

When arraigned, Valeroso pleaded “not guilty.”[5] Trial on the merits ensued.

During trial, the prosecution presented two witnesses: Senior Police Officer (SPO)2 Antonio Disuanco (Disuanco) of the Criminal Investigation Division of the Central Police District Command; and Epifanio Deriquito (Deriquito), Records Verifier of the Firearms and Explosives Division in Camp Crame. Their testimonies are summarized as follows:

On July 10, 1996, at around 9:30 a.m., Disuanco received a Dispatch Order from the desk officer directing him and three (3) other policemen to serve a Warrant of Arrest, issued by Judge Ignacio Salvador, against Valeroso for a case of kidnapping with ransom.[6]

After a briefing, the team conducted the necessary surveillance on Valeroso checking his hideouts in Cavite, Caloocan, and Bulacan. Eventually, the team members proceeded to the Integrated National Police (INP) Central Police Station in Culiat, Quezon City, where they saw Valeroso about to board a tricyle. Disuanco and his team approached Valeroso. They put him under arrest, informed him of his constitutional rights, and bodily searched him. They found a Charter Arms revolver, bearing Serial No. 52315, with five (5) pieces of live ammunition, tucked in his waist.[7]

Valeroso was then brought to the police station for questioning. Upon verification in the Firearms and Explosives Division inCamp Crame, Deriquito presented a certification[8] that the subject firearm was not issued to Valeroso, but was licensed in the name of a certain Raul Palencia Salvatierra of Sampaloc, Manila.[9]

On the other hand, Valeroso, SPO3 Agustin R. Timbol, Jr. (Timbol), and Adrian Yuson testified for the defense. Their testimonies are summarized as follows:

On July 10, 1996, Valeroso was sleeping inside a room in the boarding house of his children located at Sagana Homes, Barangay New Era, Quezon City. He was awakened by four (4) heavily armed men in civilian attire who pointed their guns at him and pulled him out of the room.[10] The raiding team tied his hands and placed him near the faucet (outside the room) then went back inside, searched and ransacked the room. Moments later, an operative came out of the room and exclaimed, “Hoy, may nakuha akong baril sa loob!”[11]

Disuanco informed Valeroso that there was a standing warrant for his arrest. However, the raiding team was not armed with a search warrant.[12]

Timbol testified that he issued to Valeroso a Memorandum Receipt[13] dated July 1, 1993 covering the subject firearm and its ammunition, upon the verbal instruction of Col. Angelito Moreno.[14]

On May 6, 1998, the Regional Trial Court (RTC), Branch 97, Quezon City, convicted Valeroso as charged and sentenced him to suffer the indeterminate penalty of four (4) years, two (2) months and one (1) day, as minimum, to six (6) years, as maximum. The gun subject of the case was further ordered confiscated in favor of the government.[15]

On appeal, the Court of Appeals (CA) affirmed[16] the RTC decision but the minimum term of the indeterminate penalty was lowered to four (4) years and two (2) months.

On petition for review, we affirmed[17] in full the CA decision. Valeroso filed a Motion for Reconsideration[18] which was denied with finality[19] on June 30, 2008.

Valeroso is again before us through this Letter-Appeal[20] imploring this Court to once more take a contemplative reflection and deliberation on the case, focusing on his breached constitutional rights against unreasonable search and seizure.[21]

Meanwhile, as the Office of the Solicitor General (OSG) failed to timely file its Comment on Valeroso’s Motion for Reconsideration, it instead filed a Manifestation in Lieu of Comment.[22]

In its Manifestation, the OSG changed its previous position and now recommends Valeroso’s acquittal. After a second look at the evidence presented, the OSG considers the testimonies of the witnesses for the defense more credible and thus concludes that Valeroso was arrested in a boarding house. More importantly, the OSG agrees with Valeroso that the subject firearm was obtained by the police officers in violation of Valeroso’s constitutional right against illegal search and seizure, and should thus be excluded from the evidence for the prosecution. Lastly, assuming that the subject firearm was admissible in evidence, still, Valeroso could not be convicted of the crime, since he was able to establish his authority to possess the gun through the Memorandum Receipt issued by his superiors.

After considering anew Valeroso’s arguments through his Letter-Appeal, together with the OSG’s position recommending his acquittal, and keeping in mind that substantial rights must ultimately reign supreme over technicalities, this Court is swayed to reconsider.[23]

The Letter-Appeal is actually in the nature of a second motion for reconsideration. While a second motion for reconsideration is, as a general rule, a prohibited pleading, it is within the sound discretion of the Court to admit the same, provided it is filed with prior leave whenever substantive justice may be better served thereby. [24]

This is not the first time that this Court is suspending its own rules or excepting a particular case from the operation of the rules. In De Guzman v. Sandiganbayan, [25] despite the denial of De Guzman’s motion for reconsideration, we still entertained his Omnibus Motion, which was actually a second motion for reconsideration. Eventually, we reconsidered our earlier decision and remanded the case to the Sandiganbayan for reception and appreciation of petitioner’s evidence. In that case, we said that if we would not compassionately bend backwards and flex technicalities, petitioner would surely experience the disgrace and misery of incarceration for a crime which he might not have committed after all. [26] Also in Astorga v. People,[27] on a second motion for reconsideration, we set aside our earlier decision, re-examined the records of the case, then finally acquitted Benito Astorga of the crime of Arbitrary Detention on the ground of reasonable doubt. And in Sta. Rosa Realty Development Corporation v. Amante,[28]by virtue of the January 13, 2004 En Banc Resolution, the Court authorized the Special First Division to suspend the Rules, so as to allow it to consider and resolve respondent’s second motion for reconsideration after the motion was heard on oral arguments. After a re-examination of the merits of the case, we granted the second motion for reconsideration and set aside our earlier decision.

Clearly, suspension of the rules of procedure, to pave the way for the reexamination of the findings of fact and conclusions of law earlier made, is not without basis.

We would like to stress that rules of procedure are merely tools designed to facilitate the attainment of justice. They are conceived and promulgated to effectively aid the courts in the dispensation of justice. Courts are not slaves to or robots of technical rules, shorn of judicial discretion. In rendering justice, courts have always been, as they ought to be, conscientiously guided by the norm that, on the balance, technicalities take a backseat to substantive rights, and not the other way around. Thus, if the application of the Rules would tend to frustrate rather than to promote justice, it would always be within our power to suspend the rules or except a particular case from its operation.[29]

Now on the substantive aspect.

The Court notes that the version of the prosecution, as to where Valeroso was arrested, is different from the version of the defense. The prosecution claims that Valeroso was arrested near the INP Central Police Station in Culiat, Quezon City, while he was about to board a tricycle. After placing Valeroso under arrest, the arresting officers bodily searched him, and they found the subject firearm and ammunition. The defense, on the other hand, insists that he was arrested inside the boarding house of his children. After serving the warrant of arrest (allegedly for kidnapping with ransom), some of the police officers searched the boarding house and forcibly opened a cabinet where they discovered the subject firearm.

After a thorough re-examination of the records and consideration of the joint appeal for acquittal by Valeroso and the OSG, we find that we must give more credence to the version of the defense.

Valeroso’s appeal for acquittal focuses on his constitutional right against unreasonable search and seizure alleged to have been violated by the arresting police officers; and if so, would render the confiscated firearm and ammunition inadmissible in evidence against him.

The right against unreasonable searches and seizures is secured by Section 2, Article III of the Constitution which states:

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.

From this constitutional provision, it can readily be gleaned that, as a general rule, the procurement of a warrant is required before a law enforcer can validly search or seize the person, house, papers, or effects of any individual.[30]

To underscore the significance the law attaches to the fundamental right of an individual against unreasonable searches and seizures, the Constitution succinctly declares in Article III, Section 3(2), that “any evidence obtained in violation of this or the preceding section shall be inadmissible in evidence for any purpose in any proceeding.”[31]

The above proscription is not, however, absolute. The following are the well- recognized instances where searches and seizures are allowed even without a valid warrant:

1. Warrantless search incidental to a lawful arrest;

2. [Seizure] of evidence in “plain view.” The elements are: a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; b) the evidence was inadvertently discovered by the police who have the right to be where they are; c) the evidence must be immediately apparent; and d) “plain view” justified mere seizure of evidence without further search;

3. Search of a moving vehicle. Highly regulated by the government, the vehicle’s inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;

4. Consented warrantless search;

5. Customs search;

6. Stop and Frisk;

7. Exigent and emergency circumstances.[32]

8. Search of vessels and aircraft; [and] 9. Inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations.[33]

In the exceptional instances where a warrant is not necessary to effect a valid search or seizure, what constitutes a reasonable or unreasonable search or seizure is purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured.[34]

In light of the enumerated exceptions, and applying the test of reasonableness laid down above, is the warrantless search and seizure of the firearm and ammunition valid?

We answer in the negative.

For one, the warrantless search could not be justified as an incident to a lawful arrest. Searches and seizures incident to lawful arrests are governed by Section 13, Rule 126 of the Rules of Court, which reads:

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

We would like to stress that the scope of the warrantless search is not without limitations. In People v. Leangsiri,[35] People v. Cubcubin, Jr.,[36] and People v. Estella, [37] we had the occasion to lay down the parameters of a valid warrantless search and seizure as an incident to a lawful arrest.

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapon that the latter might use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.[38]

Moreover, in lawful arrests, it becomes both the duty and the right of the apprehending officers to conduct a warrantless search not only on the person of the suspect, but also in the permissible area within the latter’s reach.[39] Otherwise stated, a valid arrest allows the seizure of evidence or dangerous weapons either on the person of the one arrested or within the area of his immediate control.[40] The phrase “within the area of his immediate control” means the area from within which he might gain possession of a weapon or destructible evidence.[41] A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested.[42]

In the present case, Valeroso was arrested by virtue of a warrant of arrest allegedly for kidnapping with ransom. At that time, Valeroso was sleeping inside the boarding house of his children. He was awakened by the arresting officers who were heavily armed. They pulled him out of the room, placed him beside the faucet outside the room, tied his hands, and then put him under the care of Disuanco.[43] The other police officers remained inside the room and ransacked the locked cabinet[44] where they found the subject firearm and ammunition.[45] With such discovery, Valeroso was charged with illegal possession of firearm and ammunition.

From the foregoing narration of facts, we can readily conclude that the arresting officers served the warrant of arrest without any resistance from Valeroso. They placed him immediately under their control by pulling him out of the bed, and bringing him out of the room with his hands tied. To be sure, the cabinet which, according to Valeroso, was locked, could no longer be considered as an “area within his immediate control” because there was no way for him to take any weapon or to destroy any evidence that could be used against him.

The arresting officers would have been justified in searching the person of Valeroso, as well as the tables or drawers in front of him, for any concealed weapon that might be used against the former. But under the circumstances obtaining, there was no comparable justification to search through all the desk drawers and cabinets or the other closed or concealed areas in that room itself.[46]

It is worthy to note that the purpose of the exception (warrantless search as an incident to a lawful arrest) is to protect the arresting officer from being harmed by the person arrested, who might be armed with a concealed weapon, and to prevent the latter from destroying evidence within reach. The exception, therefore, should not be strained beyond what is needed to serve its purpose.[47] In the case before us, search was made in the locked cabinet which cannot be said to have been within Valeroso’s immediate control. Thus, the search exceeded the bounds of what may be considered as an incident to a lawful arrest.[48]

Nor can the warrantless search in this case be justified under the “plain view doctrine.”

The “plain view doctrine” may not be used to launch unbridled searches and indiscriminate seizures or to extend a general exploratory search made solely to find evidence of defendant’s guilt. The doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object.[49]

As enunciated in People v. Cubcubin, Jr.[50] and People v. Leangsiri:[51]

What the “plain view” cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which[,] he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification – whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused – and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the “plain view” doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.[52]

Indeed, the police officers were inside the boarding house of Valeroso’s children, because they were supposed to serve a warrant of arrest issued against Valeroso. In other words, the police officers had a prior justification for the intrusion. Consequently, any evidence that they would inadvertently discover may be used against Valeroso. However, in this case, the police officers did not just accidentally discover the subject firearm and ammunition; they actually searched for evidence against Valeroso.

Clearly, the search made was illegal, a violation of Valeroso’s right against unreasonable search and seizure. Consequently, the evidence obtained in violation of said right is inadmissible in evidence against him.

Unreasonable searches and seizures are the menace against which the constitutional guarantees afford full protection. While the power to search and seize may at times be necessary for public welfare, still it may be exercised and the law enforced without transgressing the constitutional rights of the citizens, for no enforcement of any statute is of sufficient importance to justify indifference to the basic principles of government. Those who are supposed to enforce the law are not justified in disregarding the rights of an individual in the name of order. Order is too high a price to pay for the loss of liberty.[53]

Because a warrantless search is in derogation of a constitutional right, peace officers who conduct it cannot invoke regularity in the performance of official functions.[54]

The Bill of Rights is the bedrock of constitutional government. If people are stripped naked of their rights as human beings, democracy cannot survive and government becomes meaningless. This explains why the Bill of Rights, contained as it is in Article III of the Constitution, occupies a position of primacy in the fundamental law way above the articles on governmental power.[55]

Without the illegally seized firearm, Valeroso’s conviction cannot stand. There is simply no sufficient evidence to convict him.[56] All told, the guilt of Valeroso was not proven beyond reasonable doubt measured by the required moral certainty for conviction. The evidence presented by the prosecution was not enough to overcome the presumption of innocence as constitutionally ordained. Indeed, it would be better to set free ten men who might probably be guilty of the crime charged than to convict one innocent man for a crime he did not commit.[57]

With the foregoing disquisition, there is no more need to discuss the other issues raised by Valeroso.

One final note. The Court values liberty and will always insist on the observance of basic constitutional rights as a conditionsine qua non against the awesome investigative and prosecutory powers of the government.[58]

WHEREFORE, in view of the foregoing, the February 22, 2008 Decision and June 30, 2008 Resolution areRECONSIDERED and SET ASIDE. Sr. Insp. Jerry Valeroso is hereby ACQUITTED of illegal possession of firearm and ammunition.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, appellee, vs. ABDUL MACALABA y DIGAYON, appellant.

D E C I S I O N

DAVIDE, JR., C.J.:

Appellant Abdul Macalaba y Digayon (hereafter ABDUL) was charged before the Regional Trial Court of San Pedro, Laguna, with violations of the Presidential Decree No. 1866[1]; Article 168 of the Revised Penal Code[2]; and Section 16 of Article III of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended, in Criminal Cases Nos. 1236, 1237 and 1238, respectively. The accusatory portions of the informations in these cases read as follows:

Criminal Case No. 1236

That on or about April 12, 1999, in the Municipality of San Pedro, Province of Laguna, Philippines and within the jurisdiction of this Honorable Court, said accused without the required permit/license from the proper authorities, did then and there willfully, unlawfully, and feloniously have in his possession, custody and control one (1) caliber .45 pistol with Serial No. 909904, and one (1) magazine with five (5) live ammunition thereof.

CONTRARY TO LAW.[3]

Criminal Case No. 1237

That on or about April 12, 1999, in the Municipality of San Pedro, Province of Laguna, Philippines and within the jurisdiction of this Honorable Court, said accused did then and there willfully, unlawfully and feloniously have in his possession, custody and control two (2) ONE THOUSAND PESOS bill with Serial Numbers BG 021165 and BG 995998, knowing the same to be forged or otherwise falsified with the manifest intention of using such falsified or forged instruments.

CONTRARY TO LAW.[4]

Criminal Case No. 1238 That on or about April 12, 1999, in the Municipality of San Pedro, Province of Laguna, Philippines and within the jurisdiction of this Honorable Court, the said accused without being authorized by law, did then and there willfully, unlawfully and feloniously have in his possession, custody and control one (1) self-sealing transparent plastic bag of methamphetamine hydrochloride “shabu” weighing 226.67 grams (3 medium sized transparent plastic bags and 1 big heat-sealed transparent plastic bag).

CONTRARY TO LAW.[5]

The three cases were consolidated and raffled to Branch 31 of said court. Upon his arraignment, ABDUL entered in each case a plea of not guilty.

At the trial, the prosecution presented as witnesses SPO1 Generoso Pandez, PO3 Ernani Mendez, Police Inspector Anacleta Cultura and Police Inspector Lorna Tria. ABDUL was the sole witness for the defense.

SPO1 Pandez, a PNP member of the Laguna Criminal Investigation Detection Group (CIDG), testified that on 12 April 1999, at 5:15 p.m., Major R’ Win Pagkalinawan ordered the search of ABDUL, alias “Boy Muslim,” based on a verified information that the latter was driving a carnapped Mitsubishi olive green car with Plate No. UPV 511 and was a drug-pusher in San Pedro, Laguna. Two teams were formed for the search. The first was headed by Major Pagkalinawan, with SPO4 Aberion and five others as members; and the second was led by Capt. Percival Rumbaoa, with SPO1 Pandez and PO3 Mendez as members.[6]

Between 6:30 p.m. and 7:00 p.m., the two groups proceeded to Barangay Nueva, San Pedro, Laguna, on board a car and a van. They went to ABDUL’s apartment where he was reportedly selling shabu, but they learned that ABDUL had already left. While looking for ABDUL, they saw the suspected carnapped car somewhere at Pacita Complex I, San Pedro, Laguna, going towards the Poblacion. When it stopped due to the red traffic light, the CIDG officers alighted from their vehicles. Capt. Rumbaoa positioned himself at the passenger side of the suspected carnapped car, while Major Pagkalinawan stood in front of the car. SPO1 Pandez, with PO3 Mendez beside him, went straight to the driver and knocked at the driver’s window. ABDUL, who was driving the car, lowered the glass window. SPO1 Pandez introduced himself as a member of the Laguna CIDG and asked ABDUL to turn on the light and show them the car’s certificate of registration.[7]

When the light was already on, SPO1 Pandez saw a black Norinco .45 caliber gun[8] inside an open black clutch/belt bag placed on the right side of the driver’s seat near the gear. He asked ABDUL for the supporting papers of the gun, apart from the car’s certificate of registration, but the latter failed to show them any. [9] When ABDUL opened the zipper of the clutch/belt bag, the CIDG officers saw inside it four plastic sachets of what appeared to be shabu. They likewise found a self-sealing plastic bag which contained the following items: two fake P1,000 bills, a list of names of persons, a magazine and five ammunitions for a .45 caliber gun. They confiscated the gun, the shabu, and the fake P1,000 bills and thereafter brought ABDUL to the CIDG office.[10]

PO3 Mendez substantially corroborated the testimony of SPO1 Pandez.[11]

The two P1,000 bills were found to be counterfeit after an examination conducted by Police Inspector Anacleta Cultura,[12] a document examiner at Camp Vicente Lim, Calamba, Laguna. The white crystalline substance contained in the four small plastic bags was subjected to physical and laboratory examination conducted by Police Inspector Lorna Tria, a Forensic Chemist at the PNP Crime Laboratory, Region IV, Camp Vicente Lim. Her findings[13] were as follows: (a) the three small plastic sachets weighed 29.46 grams, while the big plastic sachet weighed 197.21 grams, or a total weight of 226.67 grams; (b) representative samples taken from the specimens thereof were positive for methamphetamine hydrochloride or shabu, a regulated drug; and (c) the improvised tooter and the rolled aluminum foil with residue found in the self-sealing plastic bag were also positive of the presence for shabu residue.

As expected, ABDUL had a different story to tell. He testified that on 12 April 1999, between 6:50 and 7:00 p.m., he was driving a borrowed Mitsubishi Galant Car with Plate No. UPV 501 somewhere in San Pedro, Laguna. With him was Rose, his live-in partner, whom he fetched from Angeles City, Pampanga. He had borrowed the car from his friend Ferdinand Navares, who instructed him to return it in front of the latter’s store at San Pedro Public Market.[14]

ABDUL was about to park the car when a man knocked hard on the glass window on the driver’s side of the car and pointed at the former a .45 caliber pistol. Another one who was armed with an armalite rifle positioned himself in front of the car, while the third one positioned himself near the window on the passenger side and pointed a gun at his live-in partner Rose. ABDUL then lowered the car’s window. The man near him opened the door, held him, and told him to alight. When the man asked him whether he was “Boy Muslim,” he answered in the negative. The same man opened the back door of the car and boarded at the back seat. Rose remained seated at the front passenger seat. [15]

The other men likewise boarded the car, which was thereafter driven by one of them. While inside the car, they saw a .45 caliber pistol at the edge of the driver’s seat. They asked him whether he had a license. He showed his gun license and permit to carry. After taking his gun, license, and permit to carry, they tried to remove his belt bag from his waist, but he did not allow them.[16]

Upon reaching the headquarters, ABDUL learned that these people were C.I.S. agents. There, he was told to surrender the belt bag to the officer who would issue a receipt for it. He did as he was told, and the money inside his belt bag was counted and it amounted toP42,000. They then got his money and the cellular phone, which was also inside the bag, together with some other pieces of paper. They also took another cell phone from the car. He was never issued a receipt for these items.[17]

Thereafter, a man entered the office with a white plastic bag allegedly taken from the borrowed car. ABDUL denied ownership over the plastic bag. That same man then told him that it contained shabu. ABDUL and Rose were detained at the headquarters. The next morning, Rose was allowed to get out; and in the afternoon, he was transferred to San Pedro Municipal Jail.[18]

After the trial, the trial court acquitted ABDUL in Criminal Cases Nos. 1236 and 1237 for violations of Presidential Decree No. 1866 and Article 168 of the Revised Penal Code, respectively, due to insufficiency of evidence. However, it convicted him in Criminal Case No. 1238 for violation of Section 16, Article III of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended,[19] and sentenced him to suffer the penalty of reclusion perpetua and to pay a fine of P500,000, as well as the costs of the suit.

Dissatisfied with the judgment, ABDUL interposed the present appeal, alleging that the trial court erred in (1) convicting him for violation of Section 16 of Article III of the Dangerous Drugs Act of 1972, as amended, despite insufficiency of evidence; and (2) admitting the evidence presented by the prosecution although it was obtained in violation of his constitutional rights.

In his first assigned error, ABDUL argues that the prosecution failed to prove the material allegations in the information. The information charges him, among other things, that “without being authorized by law, [he] did then and there willfully and feloniously have in his possession, custody and control … methamphetamine hydrochloride.” However, the prosecution did not present any certification from the concerned government agency, like the Dangerous Drugs Board, to the effect that he was not authorized to possess shabu, which is a regulated drug. Thus, his guilt was not proved beyond reasonable doubt.

In his second assigned error, ABDUL asserts that he was not committing a crime when the CIS agents boarded his car, searched the same and ultimately arrested him. He was about to park his borrowed car per instruction by the owner when he was harassed by the operatives at gunpoint. The gun seen was properly documented; thus, there was no reason for the CIS agents to bring him and his companion to the headquarters. The shabu allegedly found in the car was brought in by somebody at the time he was under interrogation. It was taken in violation of his constitutional right against illegal search and seizure. Being a “fruit of a poisonous tree” it should not have been admitted in evidence.

Moreover, the members of the CIDG merely relied on the information received from an anonymous telephone caller who said that ABDUL was driving a carnapped vehicle. They had no personal knowledge of the veracity of the information. Consequently, there was no legal basis for his warrantless arrest.

In the Appellee’s Brief, the Office of the Solicitor General (OSG) maintains that ABDUL had the burden of proving that he was authorized to possess shabu, but he failed to discharge such burden. Therefore, it is presumed that he had no authority; consequently, he is liable for violation of Section 16, Article III of the Dangerous Drugs Act of 1972, as amended. The OSG likewise refutes ABDUL’s argument that there was a violation of his right against unreasonable searches and seizures.

The general rule is that if a criminal charge is predicated on a negative allegation, or that a negative averment is an essential element of a crime, the prosecution has the burden of proving the charge. However, this rule is not without an exception. Thus, we have held:

Where the negative of an issue does not permit of direct proof, or where the facts are more immediately within the knowledge of the accused, the onus probandi rests upon him. Stated otherwise, it is not incumbent upon the prosecution to adduce positive evidence to support a negative averment the truth of which is fairly indicated by established circumstances and which, if untrue, could readily be disproved by the production of documents or other evidence within the defendant’s knowledge or control. For example, where a charge is made that a defendant carried on a certain business without a license (as in the case at bar, where the accused is charged with the selling of a regulated drug without authority), the fact that he has a license is a matter which is peculiarly within his knowledge and he must establish that fact or suffer conviction.[20]

In the instant case, the negative averment that ABDUL had no license or authority to possess methamphetamine hydrochloride orshabu, a regulated drug, has been fairly indicated by the following facts proven by the testimonies of the CIDG officers and the forensic chemist: (a) ABDUL was driving the suspected carnapped vehicle when he was caught, and he appeared to be healthy and not indisposed as to require the use of shabu as medicine; (b) the contents of the sachets found in ABDUL’s open clutch bag inside the car were prima facie determined by the CIDG officers to be shabu; and (c) the said contents were conclusively found to be shabu by the forensic chemist. With these established facts, the burden of evidence was shifted to ABDUL. He could have easily disproved the damning circumstances by presenting a doctor’s prescription for said drug or a copy of his license or authority to possess the regulated drug. Yet, he offered nothing.

And now on the second issue. The Constitution enshrines in its Bill of Rights 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.[21] To give full protection to it, the Bill of Rights also ordains the exclusionary principle that any evidence obtained in violation of said right is inadmissible for any purpose in any proceeding.[22]

It is obvious from Section 2 of the Bill of Rights that reasonable searches and seizures are not proscribed. If conducted by virtue of a valid search warrant issued in compliance with the guidelines prescribed by the Constitution and reiterated in the Rules of Court, the search and seizure is valid.

The interdiction against warrantless searches and seizures is not absolute. The recognized exceptions established by jurisprudence are (1) search of moving vehicles; (2) seizure in plain view; (3) customs search; (4) waiver or consented search; (5) stop and frisk situation (Terry search); and (6) search incidental to a lawful arrest. The last includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected with a valid warrant of arrest, the Rules of Court recognize permissible warrantless arrests, to wit: (1) arrests in flagrante delicto, (2) arrests effected in hot pursuit, and (3) arrests of escaped prisoners.[23] Another exception is a search made pursuant to routine airport security procedure, which is authorized under Section 9 of R.A. No. 6235.[24]

The warrantless arrest of, or warrantless search and seizure conducted on, ABDUL constitute a valid exemption from the warrant requirement. The evidence clearly shows that on the basis of an intelligence information that a carnapped vehicle was driven by ABDUL, who was also a suspect of drug pushing, the members of the CIDG of Laguna went around looking for the carnapped car.[25] They spotted the suspected carnapped car, which was indeed driven by ABDUL. While ABDUL was fumbling about in his clutch bag for the registration papers of the car the CIDG agents saw four transparent sachets of shabu.[26] These sachets of shabu were therefore in “plain view” of the law enforcers.

Under the “plain view” doctrine, unlawful objects within the plain view of an officer who has the right to be in the position to have that view are subject to seizure and may be presented in evidence. Nonetheless, the seizure of evidence in plain view must comply with the following requirements: (a) a prior valid intrusion in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who had the right to be where they are; (c) the evidence must be immediately apparent; and (d) the plain view justified mere seizure of evidence without further search.[27]

We are convinced beyond any shadow of doubt under the circumstances above discussed that all the elements of seizure in plain viewexist in the case at bar. Thus, the warrantless search and seizure conducted on ABDUL, as well as his warrantless arrest, did not transgress his constitutional rights.

ABDUL’s sole defense of denial is unsubstantiated. We have time and again ruled that mere denial cannot prevail over the positive testimony of a witness. A mere denial, just like alibi, is a self-serving negative evidence which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters. As between a categorical testimony that rings of truth on one hand, and a bare denial on the other, the former is generally held to prevail.[28]

On the issue of credibility between ABDUL’s testimony and the declarations of the CIDG officers, we hold for the latter. As has been repeatedly held, credence shall be given to the narration of the incident by the prosecution witnesses especially when they are police officers who are presumed to have performed their duties in a regular manner, unless there be evidence to the contrary; moreover in the absence of proof of motive to falsely impute such a serious crime against the accused, the presumption of regularity in the performance of official duty, as well as the findings of the trial court on the credibility of witnesses, shall prevail over accused’s self- serving and uncorroborated claim of having been framed.[29] ABDUL miserably failed to rebut this presumption and to prove any ulterior motive on the part of the prosecution witnesses.

Unauthorized possession of 200 grams or more of shabu or methylamphetamine hydrochloride is punishable by reclusion perpetua to death under Section 16 of Article III, in relation to Section 20 of Article IV, of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended by P.D. Nos. 44, 1675, 1683, and 1707; Batas Pambansa Blg. 179; and R.A. No. 7659 (now further amended by R.A. No. 9165). These sections provide as follows:

SEC.16. Possession or Use of Regulated Drugs. -- The penalty of reclusion perpetua to death and fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who shall possess or use any regulated drug without the corresponding license or prescription, subject to the provisions of Section 20 hereof.

…

SEC. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instruments of the Crime. -- The penalties for offenses under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the following quantities:

…

3. 200 grams or more of shabu or methylamphetamine hydrochloride….

There is no doubt that the charge of illegal possession of shabu in Criminal Case No. 1238 was proved beyond reasonable doubt since ABDUL knowingly carried with him at the time he was caught 226.67 grams of shabu without legal authority. There being no modifying circumstance proven, the proper penalty pursuant to Article 63(2) of the Revised Penal Code is reclusion perpetua. The penalty imposed by the trial court, including the fine, is, therefore, in order.

WHEREFORE, the appealed decision of the Regional Trial Court of San Pedro, Laguna, in Criminal Case No. 1238 convicting appellant ABDUL MACALABA y DIGAYON of the violation of Section 16 of Article III of the Dangerous Drugs Act of 1972 (R.A. No. 6425), as amended, and sentencing him to suffer the penalty of reclusion perpetua and to pay a fine of P500,000 and the costs of the suit, is hereby affirmed in toto.

Costs de oficio.

SO ORDERED.

G.R. No. 175783 September 3, 2007

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BERNARDO TUAZON Y NICOLAS, accused-appellant.

D E C I S I O N

CHICO-NAZARIO, J.:

For Review is the Decision1 of the Court of Appeals promulgated on 31 July 2006 in CA-G.R. CR-HC No. 01799 entitled, "People of the Philippines v. Bernardo Tuazon y Nicolas," affirming the Decision2 dated 14 October 2002 of the Regional Trial Court (RTC), Antipolo City, Branch 71, in Criminal Case No. 99-16114, finding accused- appellant guilty beyond reasonable doubt of violation of Section 16, Article III of Republic Act No. 6425,3 as amended.

The Information filed against appellant alleged:

The undersigned State Prosecutor accuses BERNARDO TUAZON y NICOLAS of the crime of Violation of Section 16, Article III, R.A. 6425, as amended, committed as follows:

That, on or about the 7th day of March, 1999, in the City of Antipolo, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized to possess any regulated drug, did then and there willfully, unlawfully and feloniously have in his possession, custody and control seven (7) heat-sealed transparent plastic bags each containing 97.92 grams, 95.46 grams, 40.47 grams, 5.36 grams, 5.41 grams, 2.95 grams and 3.17 grams for a total weight of 250.74 grams of white crystalline substance, which after the corresponding laboratory examination conducted gave positive result to the test for methylamphetamine hydrochloride also known as "shabu" a regulated drug, in violation of the above-cited law.4

Upon arraignment, appellant, duly assisted by counsel de oficio, pleaded not guilty.5

The prosecution’s version of the case relied heavily on the testimony of PO3 Glenon Bueno (PO3 Bueno) who testified that in the morning of 7 March 1999, the Antipolo City Police Station received through telephone, a confidential information that a Gemini car bearing plate number PFC 4116 would deliver an unspecified amount ofshabu in Marville Subdivision, Antipolo City. Acting on said tip, Antipolo City Chief of Police Major Rene Quintana dispatched a team of policemen to the area to conduct a surveillance. When the team arrived in Marville Subdivision, they saw the said Gemini car and immediately flagged it down. The driver of the car pulled to a stop and opened a window of said vehicle giving the policemen the opportunity to identify themselves as members of the Antipolo City Police Station. It was then that PO1 Manuel Padlan (PO1 Padlan) saw a gun tucked on appellant’s waist. PO1 Padlan inquired about the gun and appellant allegedly replied it did not belong to him nor could he produce any pertinent document relating to said firearm. This prompted PO3 Bueno to order appellant to get down from the car. As soon as appellant stepped down from the vehicle, PO3 Bueno saw five plastic sachets on the driver’s seat, the contents of which appellant allegedly admitted to be shabu. Appellant was thereafter immediately brought to the police station.

In the Joint Affidavit executed by PO3 Bueno and PO1 Padlan, it was stated that when they frisked appellant, they discovered "2 big plastic bag (sic) and 5 medium size plastic (sic) and a 9 mm. pistol marked Parabellum bearing serial number C- 9890 with one loaded magazine with eleven ammunition."7

The white crystalline substance confiscated from appellant was then forwarded to the Philippine National Police Crime Laboratory in Camp Crame, Quezon City for examination. The test conducted on the specimen turned over to the crime laboratory yielded the following:

FINDINGS:

Qualitative examination conducted on the above-stated specimen gave POSITIVE result to the test for Methylamphetamine Hydrochloride, a regulated drug. x x x.

CONCLUSION:

Specimens A-1 through A-7 contains Methylamphetamine Hydrochloride, a regulated drug. x x x.8

Expectedly, appellant presented a vastly different account of the events that led to his indictment. According to him, he used to work as a caretaker of "Curacha," a beer house/videoke bar located along Circumferential Road, Marville II Subdivision and owned by a certain Bong Reyes. On 6 March 1999, he reported for work at six o’clock in the evening. Later that night, unidentified men walked up to him. One of these men asked him regarding the ownership of the car parked outside the bar. He allegedly accompanied the men outside so he could confirm the identity of the owner of the car that the men were inquiring about. Thereupon, the men pointed to him a green colored Isuzu Gemini car which according to him was driven by his employer, Reyes. After revealing this information to the unidentified men, the latter purportedly pointed guns at him and ordered him to board an owner-type jeepney. The men allegedly asked him regarding the whereabouts of Reyes and threatened to include him in whatever trouble Reyes was in. A few hours passed and he was then brought to the police headquarters where he was asked regarding his address and the name of his employer. After two days, he was allegedly forced to admit that he was in fact the owner of the Gemini car as well as of the shabu and the gun recovered from said vehicle. He learned later on that he was charged with violations of Republic Act No. 6425 for illegal possession ofshabu and Presidential Decree No. 1866 for illegal possession of firearm. The latter case was eventually dismissed. At the end of his direct examination, appellant reiterated that he should not have been the one charged with illegal possession of shabu, but Reyes who was driving the Gemini car.

The trial court found the evidence presented by the prosecution sufficient to support a guilty verdict and imposed upon appellant the penalty of reclusion perpetua and to pay a fine of P500,000.00.9

On 17 September 2003, we resolved to accept the appeal interposed by appellant, the records of the case having been forwarded to this Court by the RTC, Antipolo City, Branch 71. We also required the parties to file their respective briefs.10

In addition to the required brief, appellant filed a supplementary pleading in which he questioned the validity of his arrest and the admissibility of the evidence presented against him. He contends that at the time of his warrantless arrest, he was merely driving within Marville Subdivision. He had not committed, was not committing, and was not about to commit any crime which could have justified his apprehension. He goes on to argue that even if he had waived the issue regarding the validity of his arrest by his failure to raise the matter before entering his plea, such waiver did not affect the unlawfulness of the search and seizure conducted by the police. Appellant claims that as the confidential informant had been cooperating with the police for three weeks prior to his arrest, the authorities were already informed of his identity and his alleged illegal activities. They should have conducted a prior surveillance and then sought a search warrant from the court. Absent said warrant, the shabu seized from him should be excluded from evidence. 11

On 23 February 2005, we ordered the transfer of this case to the Court of Appeals conformably with our decision in People v. Mateo, which modified the pertinent provisions of the Rules of Court with respect to direct appeals from the RTCs to this Court of cases where the penalty imposed is death, reclusion perpetua, or life imprisonment.12

The Court of Appeals affirmed the findings and conclusion of the court a quo. The dispositive portion of the Court of Appeals’ Decision states:

WHEREFORE, the October 14, 2002 Decision of the Regional Trial Court, Branch 71, Antipolo City, in Criminal Case No. 99-16114, is hereby AFFIRMED.13

In sustaining the trial court, the Court of Appeals found PO3 Bueno’s testimony to be "clear and unequivocal"14and should therefore prevail over appellant’s defense of denial.15 The Court of Appeals likewise brushed aside appellant’s contention that he was a victim of frame-up as this defense has been viewed with disfavor and has become a standard line of defense in most prosecutions arising from violations of the Dangerous Drugs Act.16 It also took note of appellant’s failure to give any credible reason why the police singled him out considering that they were strangers to one another prior to the date of the incident.17

Appellant is again before this Court pleading his innocence by making a lone assignment of error –

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT FOR VIOLATION OF SECTION 16, ARTICLE III, REPUBLIC ACT 6425, AS AMENDED.18

Appellant contends that the trial court’s reliance on the prosecution’s evidence was erroneous considering that he, as a mere grade school graduate, could not have concocted his narration of the events that led to his arrest.19 He also maintains that he was an easy target of police operatives, since he was a new employee in the videoke bar and was therefore unfamiliar with the people who frequented said establishment. In addition, he insists that the prosecution failed to meet the exacting test of moral certainty required for conviction and that the trial court should not have applied the presumption of regularity in the performance of duties on the part of the police officers. 20

Appellant likewise points out the trial court’s supposed failure to substantiate the factual and legal bases for his conviction. He notes that the court a quo’s evaluation of the facts and evidence was contained in only two paragraphs and was utterly lacking in substantial discussion, in contravention of this Court’s edict that the decisions must distinctly and clearly express their factual and legal bases.21

On 19 February 2007, we required the parties to file their respective supplemental briefs, if they so desired. On 17 April 2007, appellant filed a Manifestation stating that he would no longer file a supplemental brief as all relevant matters for his defense were already discussed in his previous pleadings.22 The Office of the Solicitor General likewise manifested that it would no longer file a supplemental brief.23 The appeal must fail.

In insisting that the trial court should not have given credence to the testimony of PO3 Bueno, appellant is basically making an issue about a witness’s credibility. In this regard, we reiterate the rule that appellate courts will generally not disturb factual findings of the trial court since the latter has the unique opportunity to weigh conflicting testimonies, having heard the witnesses themselves and observed their deportment and manner of testifying.24 Thus, unless attended with arbitrariness or plain disregard of pertinent facts or circumstances, the factual findings are accorded the highest degree of respect on appeal.25 Our careful review of the records of this case reveals that the trial court did not err in relying on the testimony of PO3 Bueno. In open court, PO3 Bueno recounted their encounter with appellant as follows:

PROS. LUNA:

Thank you, your honor.

Q: Mr. Witness, where were you assigned as police officer sometime in the month of March 1999?

WITNESS:

A: At the Antipolo Police Station, sir.

Q: Mr. Witness, do you know accused Bernardo Tuazon?

A: Yes, sir.

Q: How did you come to know him?

A: Because we arrested Bernardo Tuazon.

Q: If the accused in this case is present before this Court, will you please point him out?

A: He is that person wearing yellow T-shirt.

LEGAL RESEARCHER ACTING AS INTERPRETER:

The witness is pointing to a male person inside the courtroom when confronted give his name as Bernardo Tuazon.

PROS. LUNA:

Q: Do you recall where were you at about 12:10 in the morning of March 7, 1999?

WITNESS: A: At the Antipolo Police Station, sir.

Q: What were you doing then at that time?

A: We were doing our duty as police investigator, sir.

Q: Who were your companions at that time?

A: PO1 Manuel Padlan, and CA Ronald Naval, sir.

Q: While performing your functions, do you remember any unusual incident at that time?

A: One of our confidential agents gave an information thru telephone, sir.

Q: About what?

A: About delivery of shabu of undetermined amount in the area of Marville Subdivision, Antipolo City, sir.

Q: Do you know that person involved or who is the person supposed to deliver an undetermined amount of "shabu"?

A: The asset did not say who will deliver the shabu but he only said on the telephone that the car is a Gemini bearing plate number PFC 411 who will deliver at said place.

Q: Upon receipt of said information what did you do next?

A: We informed our Chief of Police Major Rene Quintana, sir.

Q: What was the reaction of Major Quintana?

A: Our Chief of Police told us to do surveillance in the area.

Q: What did you do next?

A: We immediately recorded the dispatch and we boarded a marked vehicle and proceeded to the area in Marville Subdivision, sir.

Q: Where is this located?

A: In Barangay San Roque fronting along the highway in Antipolo City.

Q: Upon reaching that place what happened?

A: When we arrived in the subdivision we saw a Gemini car with plate number PFC 411, sir.

Q: If a picture of that car would be shown to you would you be able to identify it? A: Yes, sir.

Q: I am showing to you a picture already marked as Exhibit B,. B-1 and B-2. What relation has this to the one you mentioned?

A: This is the car where the accused was then on board, sir.

Q: Upon seeing the car what did you do?

A: We immediately conduct a check point, sir.

Q: Specifically, what did you do?

A: We flagged down the vehicle, sir.

Q: What happened after flagging down the car?

A: When we flagged down the vehicle, we identified ourselves as police officers, sir.

Q: What was the reaction of the driver of the vehicle?

A: The driver opened the window and we identified ourselves as members of the Antipolo City Police Station, sir.

Q: What was the reaction of the driver?

A: When he opened the window, PO1 Padlan saw a gun tucked on his waist.

Q: What did you do next? In your case what did you do?

A: We identified ourselves as policem[e]n.

COURT:

Q: Did you know what Padlan did?

WITNESS:

A: Yes, sir.

Q: What did he do?

A: He questioned his gun and it turned out that there is no pertinent document for his gun.

Q: What do you mean "he was asked"? Who was asked?

A: The driver, Bernardo Tuazon, sir.

PROS. LUNA: Q: What was the reaction of Bernardo Tuazon?

WITNESS:

A: He said that the gun is not his.

Q: Upon hearing that the gun was not owned by Bernardo Tuazon what did you do as police officer?

A: I ordered him to get down from the car.

COURT:

Q: After he got down from the car, what happened?

WITNESS:

A: I saw five (5) plastic bags on the driver’s seat.

Q: Upon seeing that plastic bag what did you do?

A: I asked him the contents of that plastic and he replied that it contained shabu, sir.

Q: What did you do upon hearing the answer of the accused?

A: We immediately brought him to the headquarters together with the evidence, sir.

Q: What did you do with the "shabu"?

A: We brought it to the PNP Crime Laboratory for examination, sir.

Q: What was the result of the examination, if you know?

A: It gave positive result to the tests for methylamphetamine hydrochloride sir.26

We agree with the Court of Appeals that the foregoing testimony of PO3 Bueno establishes beyond reasonable doubt appellant’s culpability. His testimony regarding the circumstances that occurred in the early hours of 7 March 1999 – from the moment their office received a confidential tip from their informer up to the time they accosted appellant – deserved to be given significance as it came from the mouth of a law enforcement officer who enjoys the presumption of regularity in the performance of his duty. Police officers are presumed to have acted regularly in the performance of their official functions in the absence of clear and convincing proof to the contrary or that they were moved by ill-will.27

Appellant’s bare-faced defense of denial cannot surmount the positive and affirmative testimony offered by the prosecution. It is well-settled that positive declarations of a prosecution witness prevail over the bare denials of an accused.28 A defense of denial which is unsupported and unsubstantiated by clear and convincing evidence becomes negative and self-serving, deserving no weight in law and cannot be given greater evidentiary value over convincing, straightforward and probable testimony on affirmative matters.29 Denial is an inherently weak defense which must be supported by strong evidence of non-culpability to merit credibility.30

We shall now resolve the issue raised by appellant regarding the admissibility of the physical evidence presented against him. No less than our Constitution recognizes the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. This right is encapsulated in Article III, Section 2 of the Constitution which states:

Complementing this provision is the so-called exclusionary rule embodied in Section 3(2) of the same article –

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

It is recognized, however, that these constitutional provisions against warrantless searches and seizures admit of certain exceptions, as follows: (1) warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence; (2) seizure of evidence in plain view; (3) search of a moving vehicle; (4) consented warrantless search; (5) customs search; (6) stop and frisk; and (7) exigent and emergency circumstances.31

In the case of People v. Lo Ho Wing,32 this Court had the occasion to elucidate on the rationale for the exemption of searches of moving vehicles from the requirement of search warrant, thus:

[T]he rules governing search and seizure have over the years been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge – a requirement which borders on the impossible in the case of smuggling effected by the use of a moving vehicle that can transport contraband from one place to another with impunity. We might add that a warrantless search of a moving vehicle is justified on the ground that "it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought."

Nevertheless, the exception from securing a search warrant when it comes to moving vehicles does not give the police authorities unbridled discretion to conduct a warrantless search of an automobile. To do so would render the aforementioned constitutional stipulations inutile and expose the citizenry to indiscriminate police distrust which could amount to outright harassment. Surely, the policy consideration behind the exemption of search of moving vehicles does not encompass such arbitrariness on the part of the police authorities. In recognition of the possible abuse, jurisprudence dictates that at all times, it is required that probable cause exist in order to justify the warrantless search of a vehicle.33

In Caballes v. Court of Appeals,34 the term "probable cause" was explained to mean –

[A] reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man’s belief that the person accused is guilty of the offense with which he is charged; or the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched. The required probable cause that will justify a warrantless search and seizure is not determined by a fixed formula but is resolved according to the facts of the case.

When a vehicle is flagged down and subjected to an extensive search, such a warrantless search has been held to be valid as long as the officers conducting the search have reasonable or probable cause to believe prior to the search that they would find the instrumentality or evidence pertaining to a crime, in the vehicle to be searched.35

In this case, we hold that the police had probable cause to effect the warrantless search of the Gemini car driven by appellant. A confidential informer tipped them off that said car was going to deliver shabu at Marville Subdivision. Pursuing said lead, the Antipolo City police sent a team to Marville Subdivision to monitor said vehicle. The information provided by the informer turned out to be correct as, indeed, the Gemini car was spotted in the place where it was said to be bringing shabu. When they stopped the car, they saw a gun tucked in appellant’s waist. Appellant did not have any document to support his possession of said firearm which all the more strengthened the police’s suspicion. After he was told to step out of the car, they found on the driver’s seat plastic sachets containing white powdery substance. These circumstances, taken together, are sufficient to establish probable cause for the warrantless search of the Gemini car and the eventual admission into evidence of the plastic packets against appellant. In any case, appellant failed to timely object to the admissibility of the evidence against him on the ground that the same was obtained through a warrantless search. His failure amounts to a waiver of the objection on the legality of the search and the admissibility of the evidence obtained by the police. It was only proper for the trial court to admit said evidence. 36

Appellant also faults the trial court for its failure to abide by the Constitutional requirement that "(n)o decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based."37 Again, we disagree.

Faithful adherence to the aforementioned constitutional provision is a vital component of due process and fair play.38 The rule takes an even more important significance for the losing party who is entitled to know why he lost so that he may appeal to a higher court, if permitted, should he believe that the decision needs to be reversed. A decision that does not clearly and distinctly state the facts and the law on which it is based leaves the parties in the dark as to how it was reached and is especially prejudicial to the losing party, who is unable to pinpoint the possible errors of the court for review by a higher tribunal.39

In this case, we find that the assailed decision of the trial court substantially complied with the requirements of the Constitution. The decision contained a summary of the facts of the case as presented by the prosecution and by the defense. It likewise contained an explanation as to why it found appellant guilty as charged. Admittedly, the decision is brief but to our mind, it sufficiently informed appellant as regards the bases for his conviction. It readily informs appellant that the trial court disregarded his defense of bare denial in favor of the presumption of regularity in the performance of duties enjoyed by police officers.

WHEREFORE, premises considered, the Decision of the Court of Appeals in CA-G.R. CR-HC No. 01799 dated 31 July 2006, finding appellant Bernardo Tuazon y Nicolas guilty beyond reasonable doubt of violation of Section 16, Article III of Republic Act No. 6425, as amended, is AFFIRMED. No costs.

SO ORDERED.

THE PEOPLE OF THE PHILIPPINES, G.R. No. 175604

Appellee,

Present:

QUISUMBING, J.,* - versus - Chairperson,

CARPIO MORALES,

Acting Chairperson,

TINGA,

VELASCO, JR.,

SALVADOR PEÑAFLORIDA, JR., BRION, JJ.

Y CLIDORO,

Appellant. Promulgated:

April 10, 2008 x------x

D E C I S I O N

TINGA, J.:

Subject of this appeal is the Decision[1] of the Court of Appeals in CA-G.R. CR No. 01219, dated 31 July 2006, affirming intoto the judgment[2] of the Regional Trial Court of Camarines Sur, Branch 30, in Criminal Case No. T-1476. The trial court found appellant Salvador Peñaflorida y Clidoro guilty of transporting marijuana and sentenced him to suffer the penalty of reclusion perpetua and to pay a fine of one million pesos.

The Information against appellant reads:

That on or about the 7th day of June, 1994, in the afternoon thereat, at Barangay Huyon-huyon, Municipality of Tigaon, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to sell, possess and to deliver with the use of a bicycle, did then and there, willfully, unlawfully and feloniously have in his possession, control and custody, [o]ne bundle estimated to be one (1) kilo more or less, of dried marijuana leaves (Indian Hemp) without the necessary license, permit or authority to sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug from a competent officer as required by law.

ACTS CONTRARY TO LAW.[3]

Upon arraignment, appellant pleaded not guilty. Trial ensued.

Two police officers and one forensic chemist testified for the prosecution.

SPO3 Vicente Competente (Competente) narrated that in his capacity as chief of the Investigation and Operation Division of the Philippine National Police (PNP) station in Tigaon, Camarines Sur, that he received a tip from an asset that a bundle of marijuana was being transported by appellant to Huyon-huyon from another barangay in Tigaon, Camarines Sur.[4] Major Domingo Agravante (Agravante), chief of police of Tigaon, then organized a team composed of Competente as team leader, SPO2 Ricardo Callo (Callo), SPO1 Portugal, PO3 Pillos and PO2 Edgar Latam. The team boarded the police mobile car and proceeded to Sitio Nasulan in Barangay Huyon-huyon.[5] They overtook appellant who was on a bicycle. The police officers flagged appellant down and found marijuana wrapped in a cellophane and newspaper together with other grocery items. The amount of P1550.00 was also found in appellant’s possession. The police officers confiscated these items and took photographs thereof. Appellant was then brought to the headquarters where he was booked. [6]

Callo, who was the chief intelligence officer of Tigaon PNP, recounted that at around 1:00 p.m. on 7 June 1994, he was called by Competente and was briefed about the operation. While they were in Nasulan, the members of the police team caught a man riding a bicycle who turned out to be appellant. Callo saw the marijuana wrapped in a cellophane and newspaper in the bicycle of appellant so the latter was brought to the police headquarters and turned over to the desk officer. [7]

Major Lorlie Arroyo (Arroyo), a forensic chemist at the PNP Crime Laboratory Regional Office No. V, was presented as an expert witness to identify the subject marijuana leaves. She related that after taking a representative sample from the 928-gram confiscated dried leaves, the same was tested positive of marijuana. The findings were reflected in Chemistry Report No. D-26-94 dated 9 June 1994.[8]

Appellant denied the accusations against him. Appellant, who is a resident of Huyon-huyon, Tigaon, Camarines Sur, testified that in the morning of 7 June 1994, he first went to the house of Igmidio Miranda (Miranda) in Sagnay, Camarines Sur. The latter accompanied appellant to the house of Arnel Dadis in San Francisco, Tigaon to buy a dog. They, however, failed to get the dog; prompting them to leave. On their way home, they met Boyet Obias (Obias) who requested appellant to bring a package wrapped in a newspaper to Jimmy Gonzales (Gonzales).[9] Appellant placed it in the basket in front of his bicycle and Gonzales proceeded to the Tiagon town proper. He and Miranda parted ways when they reached the place. Appellant dropped by the grocery store and the blacksmith to get his scythe. On his way home, he was flagged down by the police and was invited to go with them to the headquarters. Upon inspection of the package in his bicycle, the police discovered the subject marijuana. Appellant tried to explain that the package was owned by Obias but the police did not believe him. He was sent to jail.[10]

Miranda corroborated the testimony of appellant that the two of them went to San Francisco, Tigaon, Camarines Sur in the morning of 7 June 1994 to buy a dog. On their way back to the town proper of Tigaon, they met Obias who requested appellant to bring a package, which Miranda thought contained cookies, to Gonzales. Upon reaching the town proper, they parted ways.[11]

On 26 October 1998, the trial court rendered judgment finding appellant guilty beyond reasonable doubt of transporting a prohibited drug, a violation of Section 4, Article II of Republic Act (R.A.) No. 6425, otherwise known as The Dangerous Drugs Act of 1972, as amended by R.A. No. 7659. The dispositive portion of the decision reads:

WHEREFORE, the accused Salvador Peñaflorida[,Jr.] is hereby sentenced to suffer the penalty of imprisonment of reclusion perpetua and to pay a fine of One Million (P1,000,000.00) Pesos, with subsidiary imprisonment in accordance with law, in case of insolvency for the fine and for him to pay the costs.

The accused Salvador Peñaflorida[,Jr.] shall be entitled to full credit of his preventive imprisonment if he agreed to abide with the rules imposed upon convicted person, otherwise, he shall be entitled to four-fifth (4/5) credit thereof.

The subject marijuana consisting of 928 grams, possession thereof being mala prohibita, the court hereby orders its confiscation in favor of the Government to be destroyed in accordance with law.

This court, however, hereby recommends to His Excellency, the President of the Philippines, through the Honorable Secretary of Justice to commute the above penalty herein imposed, being too harsh; accordingly, the said penalty imposed to accused Salvador Peñaflorida[,Jr] shall be six (6) years of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum.

SO ORDERED.[12]

In convicting appellant, the trial court lent credence to the testimonies of the police officers, thus:

Now going over the evidence adduced, the court is convinced that the accused Salvador Peñaflorida[,Jr.] committed the offense of illegal possession of 928 grams of marijuana, if not, of transporting it, as charged. This is so, because it appears undisputed that on June 7, 1994, at about 1:00 o’clock in the afternoon police officers Vicente Competente and his four (4) other co-police officers apprehended the accused Salvador Peñaflorida[,Jr.] on the roadside at Nasulan, Huyon-huyon, Tigaon, Camarines Sur [,] then riding on his bicycle and placed on the still structure at its front, a thing wrapped in a newspaper and found to be 928 grams of marijuana. No ill-motive has been presented by the defense against the police officers Vicente Competente and companions by falsely testifying against the accused Salvador Peñaflorida, Jr. So, the conclusion is inevitable that the presumption that the police officers were in the regular performance of their duties apply. The confiscation of the marijuana subject of the instant case and the arrest of the accused Salvador Peñaflorida[,Jr.] by the said police officers being lawful, having been caught in flagrante delicto, there is no need for the warrant for the seizure of the fruit of the crime, the same being incidental to the lawful arrest. Rightly so, because a person caught illegally possessing or transporting drugs is subject to the warrantless search. Besides, object in the “plain view” of an officer who has the right to be in the position to have that view are subject to seizure and may be presented as evidence.[13]

In view of the penalty imposed, the case was directly appealed to this Court on automatic review. Pursuant to our decision inPeople v. Mateo,[14] however, this case was referred to the Court of Appeals. The appellate court affirmed appellant’s conviction on 31 July 2006.

In a Resolution[15] dated 14 February 2007, the parties were given to file their supplemental briefs, if they so desire. Both parties manifested their intention not to file any supplemental brief since all the issues and arguments have already been raised in their respective briefs.[16]

Hence, the instant case is now before this Court on automatic review.

In assailing his conviction, appellant submits that there is doubt that he had freely and consciously possessed marijuana. First, he claims that the alleged asset did not name the person who would transport the marijuana to Huyon-huyon. In view of the “vague” information supplied by the asset, the latter should have been presented in court. Second, upon receipt of the information from the asset, the police officers should have first investigated and tried to obtain a warrant of arrest against appellant, instead of arbitrarily arresting him. Third, appellant maintains that he is not aware of the contents of the package. Fourth, upon arrival at the headquarters, the police did not determine the contents and weight of the package. Fifth, appellant argues that the findings of the forensic expert are questionable because there is doubt as to the identity of the package examined.[17]

Prefatorily, factual findings of the trial courts, including their assessment of the witness' credibility are entitled to great weight and respect by this Court, particularly when the Court of Appeals affirm the findings.[18] Indeed, the trial court is in the best position to assess the credibility of witnesses since it has observed firsthand their demeanor, conduct and attitude under grilling examination.[19] After a review of the records of this case, we find no cogent reason to disregard this time- honored principle.

We shall retrace the series of events leading to the arrest of appellant and resolve the issues raised by him.

Acting on an asset’s tip, a police team was organized to apprehend appellant who was allegedly about to transport the subject marijuana. Appellant is wrong in concluding that the asset did not name appellant. As early as 16 November 1996, appellant through counsel had already conceded in his Memorandum[20] filed with the trial court that based on the tip, he was about to transport the contraband. It further cited excerpts from the result of the preliminary investigation conducted by the judge on Competente, and we quote:

Q: Did your [a]sset tell you the place and the person or persons involved?

A: Yes[,]sir.

Q: Where and who?

A: He said that marijuana is being transported from Tigaon town to Bgy. Huyon- huyon by Salvador Peñaflorida, Jr.[21]

Moreover, on cross-examination, the defense counsel even assumed that according to the asset’s tip it was appellant who was assigned to deliver the contraband. And the witness under cross-examination affirmed it was indeed appellant who would be making the delivery according to the tip:

Q: Will you inform this Honorable Court who has given you the tip that the accused was going to deliver that marijuana[?] [W]ho is [this] person?

A: It was a confidential tip.

Q: Now, but [sic] on June 1 you were in your office?

A: Yes[,] sir[.] I was in the office.

Q: Since your office is just near the Municipal Trial Court of Tigaon and you were given a tip that Salvador Peñaflorida[,Jr.] will be delivering marijuana, why did you not get a [w]arrant of [a]rrest?

x x x

Q: The tip that was given to you that it was Salvador Peñaflorida [who] will be dealing marijuana on that date and according to you Salvador was to travel from a certain town to Tigaon, is that the tip?

A: Yes[,] sir[.] That he would deliver marijuana.

Q: So, at the time that you form[ed] a team, Salvador was nowhere to be seen, you have not seen the shadow of Salvador?

A: When the tip was given to us[,] I have not seen him[.] [B]ut the tip is he will deliver from Tigaon to Huyon-huyon, that is why we chased him. [22] [Emphasis supplied]

Prescinding from the above argument, appellant insists that the asset should have been presented in court. He invoked the court ruling in People v. Libag, [23] wherein the non-presentation of the informant was fatal to the case of the prosecution. Libagcannot find application in this case. In that case, the crime charged was the sale of shabu where the informant himself was a poseur-buyer and a witness to the transaction. His testimony as a poseur-buyer was indispensable because it could have helped the trial court in determining whether or not the appellant had knowledge that the bag contained marijuana, such knowledge being an essential ingredient of the offense for which he was convicted.[24] In this case, however, the asset was not present in the police operation. The rule is that the presentation of an informant in an illegal drugs case is not essential for conviction nor is it indispensable for a successful prosecution because his testimony would merely be corroborative and cumulative. Informants are generally not presented in court because of the need to hide their identity and preserve their invaluable service to the police.[25]

Competente testified that his team caught up with appellant who was riding a bicycle. He saw the marijuana in a package which appellant was carrying inside his basket, thus:

Q: And so as the team leader x x x and in connection with the instruction of Chief Domingo Agravante, what did you do?

A: We used the mobile and proceeded to the place, to the route where the marijuana was being transported.

Q: When you said we to whom are you referring to?

A: The team.

Q: Were you able to go to the place as you said?

A: Yes, sir.

Q: So, upon reaching the place, [sic] what place was that?

A: Sitio Nasulan, Barangay Huyon-huyon, Tigaon, Camarines Sur.

Q: And upon reaching the place together with the other member of the team, what did you find if you found any?

A: We overtook our suspect while riding in a bicycle and we stopped him.

Q: And did the suspect stop?

A: Yes[,] sir.

Q: Tell us the name of your suspect?

A: Salvador Peñaflorida[,] Jr. y Clidoro.

Q: And after stopping the accused in this case, what else did you do[,] if any[,] together with the team?

A: When we saw the marijuana and other groceries in his bicycle we invited him to the headquarters.[26]

Callo also confirmed that he saw appellant transporting and in possession of the subject marijuana:

Q: When you reached there[,] what happened next?

A: We have not reached yet [sic] the Huyon-huyon proper. [W]e are in Nasulan when we met the man who had with him the marijuana.

x x x

Q: After you talked with the person with marijuana[,] what happened next?

A: We saw on his bicycle a wrap[ped] marijuana.

Q: Who was in possession of that?

A: Salvador Peñaflorida[,] Jr.

Q: How is that person related to the accused in this case now?

A: He is the one, sir.

Q: Kindly describe to us the marijuana that you are able to tell that it was marijuana?

A: It was wrapped on [cellophane] and newspaper. We saw the edges of the marijuana.

Q: For the [record], kindly describe to us the edges of the marijuana[;] its appearance and color.

A: It was like a shape of ½ ream of coupon bond and the color is green.[27]

These positive and categorical declarations of two police officers deserve weight and credence in light of the presumption of regularity accorded to them and the lack of motive on their part to falsely testify against appellant.

Appellant resorts to a challenge on the validity of his arrest predicated on lack of a warrant of arrest. The OSG correctly justifies the failure to apply for an arrest warrant because at that point, time was of the essence in appellant’s apprehension, noting in the same breath that there is no law requiring investigation and surveillance upon receipt of tips from assets before conducting police operations. [28] The police officers succinctly testified on this point when cross-examined, viz:

Q: Will you inform this Honorable Court who has given you the tip that the accused was going to deliver that marijuana, who is that person?

A: It was a confidential tip.

Q: Now, but [sic] on June 1 you were in your office?

A: Yes[,] sir[.] I was in the office.

A: There was no time to apply for a search warrant because just after the information was received, we proceeded.

x x x

Q: If that is true, Mr. Competente that you were given a tip, the most that you will do is first see the Judge of Tigaon in as much as you have not seen yet [sic] the said person carrying marijuana?

A: There was no time for us to apply, because the marijuana is being delivered so we have no more time to see the Judge.

x x x

Q: Are you aware of the law that illegally confiscated marijuana cannot be used in court?

FISCAL SOLANO: Conclusion of law.

A: Yes, sir[.] [I]f it is illegally confiscated it cannot be used in court.

ATTY. CLEDERA: Despite that prohibition under the rules[,] you insisted in apprehending Salvador Peñaflorida[,Jr.] without warrant of arrest inspite of the fact that you know that restriction?

A: Our apprehension was in plain view.

Q: How can you see that it was in open view when according to you the house of Salvador is 120 meters[?] [H]ow can you see that distance?

A: I could see that because the marijuana was carried in his bicycle, we have seen it.

Q: In what street?

A: Huyon-huyon[,] Sitio Nasulan, Tigaon, Camarines Sur.

Q: About what time did you see him?

A: 1:00 o’clock sir.

x x x[29]

The police was tipped off at around 1:00 p.m. that appellant was transporting marijuana to Huyon-huyon. Certainly, they had no time to secure an arrest warrant as appellant was already in transit and already committing a crime. The arrest was effected after appellant was caught in flagrante delicto. He was seen riding his bicycle and carrying with him the contraband, hence, demonstrating that a crime was then already being committed. Under the circumstances, the police had probable cause to believe that appellant was committing a crime. Thus, the warrantless arrest is justified.

Article II, Section 4 of R.A. No. 6425, as amended by R.A. No. 7659, states:

SEC. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. — The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as broker in any of such transactions. x x x.

Jurisprudence defines “transport” as “to carry or convey from one place to another.”[30] In the instant case, appellant was riding his bicycle when he was caught by the police. He admitted that he was about to convey the package, which contained marijuana, to a certain Jimmy Gonzales.

Appellant, however, denies any knowledge that the package in his possession contained marijuana. But the trial court rejected his contention, noting that it was impossible for appellant not to be aware of the contents of the package because “marijuana has a distinct sweet and unmistakable aroma x x x which would have alarmed him.”[31]

Taking one step further, the appellate court went on to declare that being mala prohibita, one commits the crime under R.A. No. 6425 by mere possession of a prohibited drug without legal authority. Intent, motive or knowledge thereof is not necessary.[32]

Appellant, in the main, asserts that he did not freely and consciously possess marijuana.[33] In criminal cases involving prohibited drugs, there can be no conviction unless the prosecution shows that the accused knowingly possessed the prohibited articles in his person, or that animus possidendi is shown to be present together with his possession or control of such article. Animus possidendi is only prima facie. It is subject to contrary proof and may be rebutted by evidence that the accused did not in fact exercise power and control over the thing in question, and did not intend to do so. The burden of evidence is thus shifted to the possessor to explain absence of animus possidendi.[34]

Knowledge refers to a mental state of awareness of a fact. Since courts cannot penetrate the mind of an accused and thereafter state its perceptions with certainty, resort to other evidence is necessary. Animus possidendi, as a state of mind, may be determined on a case-to-case basis by taking into consideration the prior or contemporaneous acts of the accused, as well as the surrounding circumstances. Its existence may and usually must be inferred from the attendant events in each particular case.[35]

Appellant failed to satisfactorily establish his lack of knowledge of possession in the instant case. First, the marijuana was found in the bicycle he himself was driving. Second, the police officers first readily saw in plain view the edges of the marijuana leaves jutting out of the package. Third, it is incredulous that appellant did not ask Obias what the package contained when the latter requested him to do the delivery errand since the package was wrapped in a newspaper and weighed almost one kilogram. The same observation was reached by the trial court:

Finally, it is very hard for the court to accept the claim of the accused Salvador Peñaflorida[,Jr.] that he does not know that the thing wrapped in a newspaper which Boyet Obias, now dead, requested the accused Peñaflorida[,Jr.] would deliver to a certain Jimmy Gonzales whose present whereabouts is not known, was a marijuana. Its odor is different especially from tobacco. This was observed by the court during the trial of the case, everytime the wrapper containing the subject marijuana with a volume of 928 grams is brought to court its odor is noticeable. For the accused Peñaflorida[,Jr.], not to notice it is hard to believe. Rightly so, because marijuana has a distinct sweet and unmistakable aroma very different from (and not nauseating) unlike tobacco. This aroma would have alarmed him.[36]

Furthermore, it appeared from the cross-examination of appellant that Obias was an acquaintance. In the ordinary course of things, one is expected to inquire about the contents of a wrapped package especially when it is a mere acquaintance who requests the delivery and, more so, when delivery is to a place some distance away.

Anent appellant’s claim that the package examined by Arroyo was not the one confiscated from him, the appellate court had this to say:

SPO3 Competente testified that marijuana was confiscated from appellant. The pictures of appellant, together with the items seized from him, depict a package containing dry leaves suspected to be marijuana. On the other hand, Forensic Chemist Arroyo testified that the specimen she examined was delivered to her by Major Agravante on June 9, 1994 or two days after the apprehension. From these series of events, it can be inferred that the package confiscated from appellant and the specimen delivered to Forensic Chemist Arroyo for laboratory examination were one and the same.[37]

Despite intense grilling from the defense counsel, Arroyo never faltered and was in fact consistent in declaring that she received the specimen from Agravante on 9 June 1994 and immediately conducted the laboratory test.

Finally, the lower courts correctly sentenced appellant to suffer the penalty of reclusion perpetua and to pay a fine of one million pesos by virtue of the amendment to Section 4, R.A. No. 6425 by R.A. No. 7659.[38]

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of San Jose, Camarines Sur, Branch 30 in Criminal Case No. T-1476, finding appellant Salvador Peñaflorida y Clidoro guilty beyond reasonable doubt of violation of Section 4, Article II of R.A. No. 6425 (Dangerous Drugs Act) as amended, and sentencing him to suffer the penalty of reclusion perpetuaand to pay a fine of One Million Pesos (P1,000,000.00), is AFFIRMED in toto.

SO ORDERED.

G.R. No. 160792 August 25, 2005

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF CAPT. GARY ALEJANO, PN (MARINES) CAPT. NICANOR FAELDON, PN (MARINES) CAPT. GERARDO GAMBALA, PA LT. SG JAMES LAYUG, PN CAPT. MILO MAESTRECAMPO, PA LT. SG ANTONIO TRILLANES IV, PN HOMOBONO ADAZA, and ROBERTO RAFAEL (ROEL) PULIDO, Petitioners, vs. GEN. PEDRO CABUAY, GEN. NARCISO ABAYA, SEC. ANGELO REYES, and SEC. ROILO GOLEZ,Respondents.

D E C I S I O N

CARPIO, J.:

The Case

This petition for review1 seeks to nullify the Decision2 of the Court of Appeals dated 17 September 2003 and Resolution dated 13 November 2003 in CA-G.R. SP No. 78545. The Court of Appeals’ Decision and Resolution dismissed the petition for habeas corpus filed by lawyers Homobono Adaza and Roberto Rafael Pulido ("petitioners") on behalf of their detained clients Capt. Gary Alejano (PN-Marines), Capt. Nicanor Faeldon (PN-Marines), Capt. Gerardo Gambala (PA), Lt. SG James Layug (PN), Capt. Milo Maestrecampo (PA), and Lt. SG Antonio Trillanes IV (PN) ("detainees"). Petitioners named as respondent Gen. Pedro Cabuay ("Gen. Cabuay"), Chief of the Intelligence Service of the Armed Forces of the Philippines ("ISAFP"), who has custody of the detainees. Petitioners impleaded Gen. Narciso Abaya ("Gen. Abaya"), Sec. Angelo Reyes and Roilo Golez, who are respectively the Chief of Staff of the Armed Forces of the Philippines ("AFP"), Secretary of National Defense and National Security Adviser, because they have command responsibility over Gen. Cabuay.

Antecedent Facts

Early morning of 27 July 2003, some 321 armed soldiers, led by the now detained junior officers, entered and took control of the Oakwood Premier Luxury Apartments ("Oakwood"), an upscale apartment complex, located in the business district of Makati City. The soldiers disarmed the security officers of Oakwood and planted explosive devices in its immediate surroundings. The junior officers publicly renounced their support for the administration and called for the resignation of President Gloria Macapagal-Arroyo and several cabinet members.

Around 7:00 p.m. of the same date, the soldiers voluntarily surrendered to the authorities after several negotiations with government emissaries. The soldiers later defused the explosive devices they had earlier planted. The soldiers then returned to their barracks.

On 31 July 2003, Gen. Abaya, as the Chief of Staff of the AFP, issued a directive to all the Major Service Commanders to turn over custody of ten junior officers to the ISAFP Detention Center. The transfer took place while military and civilian authorities were investigating the soldiers’ involvement in the Oakwood incident.

On 1 August 2003, government prosecutors filed an Information for coup d’etat with the Regional Trial Court of Makati City, Branch 61, against the soldiers involved in the 27 July 2003 Oakwood incident. The government prosecutors accused the soldiers of coup d’etat as defined and penalized under Article 134-A of the Revised Penal Code of the Philippines, as amended. The case was docketed as Criminal Case No. 03-2784. The trial court later issued the Commitment Orders giving custody of junior officers Lt. SG Antonio Trillanes IV ("Trillanes") and Capt. Gerardo Gambala to the Commanding Officers of ISAFP.

On 2 August 2003, Gen. Abaya issued a directive to all Major Service Commanders to take into custody the military personnel under their command who took part in the Oakwood incident except the detained junior officers who were to remain under the custody of ISAFP.

On 11 August 2003, petitioners filed a petition for habeas corpus with the Supreme Court. On 12 August 2003, the Court issued a Resolution, which resolved to:

(a) ISSUE the WRIT OF HABEAS CORPUS; (b) require respondents to make a RETURN of the writ on Monday, 18 August 2003, at 10:00 a.m. before the Court of Appeals; (c) refer the case to the Court of Appeals for RAFFLEamong the Justices thereof for hearing, further proceedings and decision thereon, after which a REPORT shall be made to this Court within ten (10) days from promulgation of the decision.3

Thus, the Court issued a Writ of Habeas Corpus dated 12 August 2003 directing respondents to make a return of the writ and to appear and produce the persons of the detainees before the Court of Appeals on the scheduled date for hearing and further proceedings.

On the same date, the detainees and their other co-accused filed with the Regional Trial Court of Makati City a Motion for Preliminary Investigation, which the trial court granted.

On 18 August 2003, pursuant to the directives of the Court, respondents submitted their Return of the Writ and Answer to the petition and produced the detainees before the Court of Appeals during the scheduled hearing. After the parties filed their memoranda on 28 August 2003, the appellate court considered the petition submitted for decision.

On 17 September 2003, the Court of Appeals rendered its decision dismissing the petition. Nonetheless, the appellate court ordered Gen. Cabuay, who was in charge of implementing the regulations in the ISAFP Detention Center, to uphold faithfully the rights of the detainees in accordance with Standing Operations Procedure No. 0263-04. The appellate court directed Gen. Cabuay to adhere to his commitment made in court regarding visiting hours and the detainees’ right to exercise for two hours a day.

The Ruling of the Court of Appeals

The Court of Appeals found the petition bereft of merit. The appellate court pointed out that the detainees are already charged of coup d’etat before the Regional Trial Court of Makati. Habeas corpus is unavailing in this case as the detainees’ confinement is under a valid indictment, the legality of which the detainees and petitioners do not even question.

The Court of Appeals recognized that habeas corpus may also be the appropriate remedy to assail the legality of detention if there is a deprivation of a constitutional right. However, the appellate court held that the constitutional rights alleged to have been violated in this case do not directly affect the detainees’ liberty. The appellate court ruled that the regulation of the detainees’ right to confer with their counsels is reasonable under the circumstances.

The appellate court declared that while the opening and reading of Trillanes’ letter is an abhorrent violation of his right to privacy of communication, this does not justify the issuance of a writ of habeas corpus. The violation does not amount to illegal restraint, which is the proper subject of habeas corpus proceedings.

The Court of Appeals thus dismissed the petition and ordered Gen. Cabuay to fulfill the promise he made in open court to uphold the visiting hours and the right of the detainees to exercise for two hours a day. The dispositive portion of the appellate court’s decision reads:

WHEREFORE, the foregoing considered, the instant petition is hereby DISMISSED. Respondent Cabuay is hereby ORDERED to faithfully adhere to his commitment to uphold the constitutional rights of the detainees in accordance with the Standing Operations Procedure No. 0263-04 regarding visiting hours and the right of the detainees to exercise for two (2) hours a day.

SO ORDERED.4

The Issues

Petitioners raise the following issues for resolution:

A. THE COURT OF APPEALS ERRED IN REVIEWING AND REVERSING A DECISION OF THE SUPREME COURT;

B. THE COURT OF APPEALS ERRED IN NOT ACKNOWLEDGING THE APPROPRIATENESS OF THE REMEDY PETITIONERS SEEK; and

C. THE COURT OF APPEALS ERRED IN ASSERTING THE LEGALITY OF THE CONDITIONS OF THE DETAINED JUNIOR OFFICERS’ DETENTION.5

The Ruling of the Court

The petition lacks merit.

Petitioners claim that the Court’s 12 August 2003 Order granted the petition and the Court remanded the case to the Court of Appeals only for a factual hearing. Petitioners thus argue that the Court’s Order had already foreclosed any question on the propriety and merits of their petition.

Petitioners’ claim is baseless. A plain reading of the 12 August 2003 Order shows that the Court referred to the Court of Appeals the duty to inquire into the cause of the junior officers’ detention. Had the Court ruled for the detainees’ release, the Court would not have referred the hearing of the petition to the Court of Appeals. The Court would have forthwith released the detainees had the Court upheld petitioners’ cause.

In a habeas corpus petition, the order to present an individual before the court is a preliminary step in the hearing of the petition.6 The respondent must produce the person and explain the cause of his detention.7 However, this order is not a ruling on the propriety of the remedy or on the substantive matters covered by the remedy. Thus, the Court’s order to the Court of Appeals to conduct a factual hearing was not an affirmation of the propriety of the remedy of habeas corpus.

For obvious reasons, the duty to hear the petition for habeas corpus necessarily includes the determination of the propriety of the remedy. If a court finds the alleged cause of the detention unlawful, then it should issue the writ and release the detainees. In the present case, after hearing the case, the Court of Appeals found that habeas corpus is inapplicable. After actively participating in the hearing before the Court of Appeals, petitioners are estopped from claiming that the appellate court had no jurisdiction to inquire into the merits of their petition.

The Court of Appeals correctly ruled that the remedy of habeas corpus is not the proper remedy to address the detainees’ complaint against the regulations and conditions in the ISAFP Detention Center. The remedy ofhabeas corpus has one objective: to inquire into the cause of detention of a person.8 The purpose of the writ is to determine whether a person is being illegally deprived of his liberty.9 If the inquiry reveals that the detention is illegal, the court orders the release of the person. If, however, the detention is proven lawful, then the habeas corpus proceedings terminate. The use of habeas corpus is thus very limited. It is not a writ of error.10 Neither can it substitute for an appeal.11

Nonetheless, case law has expanded the writ’s application to circumstances where there is deprivation of a person’s constitutional rights. The writ is available where a person continues to be unlawfully denied of one or more of his constitutional freedoms, where there is denial of due process, where the restraints are not merely involuntary but are also unnecessary, and where a deprivation of freedom originally valid has later become arbitrary.12

However, a mere allegation of a violation of one’s constitutional right is not sufficient. The courts will extend the scope of the writ only if any of the following circumstances is present: (a) there is a deprivation of a constitutional right resulting in the unlawful restraint of a person; (b) the court had no jurisdiction to impose the sentence; or (c) an excessive penalty is imposed and such sentence is void as to the excess.13 Whatever situation the petitioner invokes, the threshold remains high. The violation of constitutional right must be sufficient to void the entire proceedings.14

Petitioners admit that they do not question the legality of the detention of the detainees. Neither do they dispute the lawful indictment of the detainees for criminal and military offenses. What petitioners bewail is the regulation adopted by Gen. Cabuay in the ISAFP Detention Center preventing petitioners as lawyers from seeing the detainees – their clients – any time of the day or night. The regulation allegedly curtails the detainees’ right to counsel and violates Republic Act No. 7438 ("RA 7438").15 Petitioners claim that the regulated visits made it difficult for them to prepare for the important hearings before the Senate and the Feliciano Commission. Petitioners also point out that the officials of the ISAFP Detention Center violated the detainees’ right to privacy of communication when the ISAFP officials opened and read the personal letters of Trillanes and Capt. Milo Maestrecampo ("Maestrecampo"). Petitioners further claim that the ISAFP officials violated the detainees’ right against cruel and unusual punishment when the ISAFP officials prevented the detainees from having contact with their visitors. Moreover, the ISAFP officials boarded up with iron bars and plywood slabs the iron grills of the detention cells, limiting the already poor light and ventilation in the detainees’ cells.

Pre-trial detainees do not forfeit their constitutional rights upon confinement.16 However, the fact that the detainees are confined makes their rights more limited than those of the public.17 RA 7438, which specifies the rights of detainees and the duties of detention officers, expressly recognizes the power of the detention officer to adopt and implement reasonable measures to secure the safety of the detainee and prevent his escape. Section 4(b) of RA 7438 provides:

Section 4. Penalty Clause. – a) x x x b) Any person who obstructs, prevents or prohibits any lawyer, any member of the immediate family of a person arrested, detained or under custodial investigation, or any medical doctor or priest or religious minister or by his counsel, from visiting and conferring privately chosen by him or by any member of his immediate family with him, or from examining and treating him, or from ministering to his spiritual needs, at any hour of the day or, in urgent cases, of the night shall suffer the penalty of imprisonment of not less than four (4) years nor more than six (6) years, and a fine of four thousand pesos (P4,000.00).

The provisions of the above Section notwithstanding, any security officer with custodial responsibility over any detainee or prisoner may undertake such reasonable measures as may be necessary to secure his safety and prevent his escape. (Emphasis supplied)

True, Section 4(b) of RA 7438 makes it an offense to prohibit a lawyer from visiting a detainee client "at any hour of the day or, in urgent cases, of the night." However, the last paragraph of the same Section 4(b) makes the express qualification that "notwithstanding" the provisions of Section 4(b), the detention officer has the power to undertake such reasonable measures as may be necessary to secure the safety of the detainee and prevent his escape.

The last paragraph of Section 4(b) of RA 7438 prescribes a clear standard. The regulations governing a detainee’s confinement must be "reasonable measures x x x to secure his safety and prevent his escape." Thus, the regulations must be reasonably connected to the government’s objective of securing the safety and preventing the escape of the detainee. The law grants the detention officer the authority to "undertake such reasonable measures" or regulations. Petitioners contend that there was an actual prohibition of the detainees’ right to effective representation when petitioners’ visits were limited by the schedule of visiting hours. Petitioners assert that the violation of the detainees’ rights entitle them to be released from detention.

Petitioners’ contention does not persuade us. The schedule of visiting hours does not render void the detainees’ indictment for criminal and military offenses to warrant the detainees’ release from detention. The ISAFP officials did not deny, but merely regulated, the detainees’ right to counsel. The purpose of the regulation is not to render ineffective the right to counsel, but to secure the safety and security of all detainees. American cases are instructive on the standards to determine whether regulations on pre-trial confinement are permissible.

In Bell v. Wolfish,18 the United States (U.S.) Supreme Court held that regulations must be reasonably related to maintaining security and must not be excessive in achieving that purpose. Courts will strike down a restriction that is arbitrary and purposeless.19 However, Bell v. Wolfish expressly discouraged courts from skeptically questioning challenged restrictions in detention and prison facilities.20 The U.S. Supreme Court commanded the courts to afford administrators "wide-ranging deference" in implementing policies to maintain institutional security.21

In our jurisdiction, the last paragraph of Section 4(b) of RA 7438 provides the standard to make regulations in detention centers allowable: "such reasonable measures as may be necessary to secure the detainee’s safety and prevent his escape." In the present case, the visiting hours accorded to the lawyers of the detainees are reasonably connected to the legitimate purpose of securing the safety and preventing the escape of all detainees.

While petitioners may not visit the detainees any time they want, the fact that the detainees still have face-to-face meetings with their lawyers on a daily basis clearly shows that there is no impairment of detainees’ right to counsel. Petitioners as counsels could visit their clients between 8:00 a.m. and 5:00 p.m. with a lunch break at 12:00 p.m. The visiting hours are regular business hours, the same hours when lawyers normally entertain clients in their law offices. Clearly, the visiting hours pass the standard of reasonableness. Moreover, in urgent cases, petitioners could always seek permission from the ISAFP officials to confer with their clients beyond the visiting hours.

The scheduled visiting hours provide reasonable access to the detainees, giving petitioners sufficient time to confer with the detainees. The detainees’ right to counsel is not undermined by the scheduled visits. Even in the hearings before the Senate and the Feliciano Commission,22 petitioners were given time to confer with the detainees, a fact that petitioners themselves admit.23 Thus, at no point were the detainees denied their right to counsel. Petitioners further argue that the bars separating the detainees from their visitors and the boarding of the iron grills in their cells with plywood amount to unusual and excessive punishment. This argument fails to impress us.Bell v. Wolfish pointed out that while a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law, detention inevitably interferes with a detainee’s desire to live comfortably.24The fact that the restrictions inherent in detention intrude into the detainees’ desire to live comfortably does not convert those restrictions into punishment.25 It is when the restrictions are arbitrary and purposeless that courts will infer intent to punish.26 Courts will also infer intent to punish even if the restriction seems to be related rationally to the alternative purpose if the restriction appears excessive in relation to that purpose.27 Jail officials are thus not required to use the least restrictive security measure.28 They must only refrain from implementing a restriction that appears excessive to the purpose it serves.29

We quote Bell v. Wolfish:

One further point requires discussion. The petitioners assert, and respondents concede, that the "essential objective of pretrial confinement is to insure the detainees’ presence at trial." While this interest undoubtedly justifies the original decision to confine an individual in some manner, we do not accept respondents’ argument that the Government’s interest in ensuring a detainee’s presence at trial is the only objective that may justify restraints and conditions once the decision is lawfully made to confine a person. "If the government could confine or otherwise infringe the liberty of detainees only to the extent necessary to ensure their presence at trial, house arrest would in the end be the only constitutionally justified form of detention." The Government also has legitimate interests that stem from its need to manage the facility in which the individual is detained. These legitimate operational concerns may require administrative measures that go beyond those that are, strictly speaking, necessary to ensure that the detainee shows up at trial. For example, the Government must be able to take steps to maintain security and order at the institution and make certain no weapons or illicit drugs reach detainees. Restraints that are reasonably related to the institution’s interest in maintaining jail security do not, without more, constitute unconstitutional punishment, even if they are discomforting and are restrictions that the detainee would not have experienced had he been released while awaiting trial. We need not here attempt to detail the precise extent of the legitimate governmental interests that may justify conditions or restrictions of pretrial detention. It is enough simply to recognize that in addition to ensuring the detainees’ presence at trial, the effective management of the detention facility once the individual is confined is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such restrictions are intended as punishment.30 An action constitutes a punishment when (1) that action causes the inmate to suffer some harm or "disability," and (2) the purpose of the action is to punish the inmate.31 Punishment also requires that the harm or disability be significantly greater than, or be independent of, the inherent discomforts of confinement.32

Block v. Rutherford,33 which reiterated Bell v. Wolfish, upheld the blanket restriction on contact visits as this practice was reasonably related to maintaining security. The safety of innocent individuals will be jeopardized if they are exposed to detainees who while not yet convicted are awaiting trial for serious, violent offenses and may have prior criminal conviction.34 Contact visits make it possible for the detainees to hold visitors and jail staff hostage to effect escapes.35 Contact visits also leave the jail vulnerable to visitors smuggling in weapons, drugs, and other contraband.36 The restriction on contact visits was imposed even on low-risk detainees as they could also potentially be enlisted to help obtain contraband and weapons.37 The security consideration in the imposition of blanket restriction on contact visits was ruled to outweigh the sentiments of the detainees.38

Block v. Rutherford held that the prohibition of contact visits bore a rational connection to the legitimate goal of internal security.39 This case reaffirmed the "hands-off" doctrine enunciated in Bell v. Wolfish, a form of judicial self-restraint, based on the premise that courts should decline jurisdiction over prison matters in deference to administrative expertise.40

In the present case, we cannot infer punishment from the separation of the detainees from their visitors by iron bars, which is merely a limitation on contact visits. The iron bars separating the detainees from their visitors prevent direct physical contact but still allow the detainees to have visual, verbal, non-verbal and limited physical contact with their visitors. The arrangement is not unduly restrictive. In fact, it is not even a strict non-contact visitation regulation like in Block v. Rutherford. The limitation on the detainees’ physical contacts with visitors is a reasonable, non-punitive response to valid security concerns.

The boarding of the iron grills is for the furtherance of security within the ISAFP Detention Center. This measure intends to fortify the individual cells and to prevent the detainees from passing on contraband and weapons from one cell to another. The boarded grills ensure security and prevent disorder and crime within the facility. The diminished illumination and ventilation are but discomforts inherent in the fact of detention, and do not constitute punishments on the detainees.

We accord respect to the finding of the Court of Appeals that the conditions in the ISAFP Detention Center are not inhuman, degrading and cruel. Each detainee, except for Capt. Nicanor Faeldon and Capt. Gerardo Gambala, is confined in separate cells, unlike ordinary cramped detention cells. The detainees are treated well and given regular meals. The Court of Appeals noted that the cells are relatively clean and livable compared to the conditions now prevailing in the city and provincial jails, which are congested with detainees. The Court of Appeals found the assailed measures to be reasonable considering that the ISAFP Detention Center is a high-risk detention facility. Apart from the soldiers, a suspected New People’s Army ("NPA") member and two suspected Abu Sayyaf members are detained in the ISAFP Detention Center.

We now pass upon petitioners’ argument that the officials of the ISAFP Detention Center violated the detainees’ right to privacy when the ISAFP officials opened and read the letters handed by detainees Trillanes and Maestrecampo to one of the petitioners for mailing. Petitioners point out that the letters were not in a sealed envelope but simply folded because there were no envelopes in the ISAFP Detention Center. Petitioners contend that the Constitution prohibits the infringement of a citizen’s privacy rights unless authorized by law. The Solicitor General does not deny that the ISAFP officials opened the letters.

Courts in the U.S. have generally permitted prison officials to open and read all incoming and outgoing mail of convicted prisoners to prevent the smuggling of contraband into the prison facility and to avert coordinated escapes.41 Even in the absence of statutes specifically allowing prison authorities from opening and inspecting mail, such practice was upheld based on the principle of "civil deaths."42 Inmates were deemed to have no right to correspond confidentially with anyone. The only restriction placed upon prison authorities was that the right of inspection should not be used to delay unreasonably the communications between the inmate and his lawyer.43

Eventually, the inmates’ outgoing mail to licensed attorneys, courts, and court officials received respect.44 The confidential correspondences could not be censored.45 The infringement of such privileged communication was held to be a violation of the inmates’ First Amendment rights.46 A prisoner has a right to consult with his attorney in absolute privacy, which right is not abrogated by the legitimate interests of prison authorities in the administration of the institution.47 Moreover, the risk is small that attorneys will conspire in plots that threaten prison security.48

American jurisprudence initially made a distinction between the privacy rights enjoyed by convicted inmates and pre-trial detainees. The case of Palmigiano v. Travisono49 recognized that pre-trial detainees, unlike convicted prisoners, enjoy a limited right of privacy in communication. Censorship of pre-trial detainees’ mail addressed to public officials, courts and counsel was held impermissible. While incoming mail may be inspected for contraband and read in certain instances, outgoing mail of pre-trial detainees could not be inspected or read at all.

In the subsequent case of Wolff v. McDonnell,50 involving convicted prisoners, the U.S. Supreme Court held that prison officials could open in the presence of the inmates incoming mail from attorneys to inmates. However, prison officials could not read such mail from attorneys. Explained the U.S. Supreme Court: The issue of the extent to which prison authorities can open and inspect incoming mail from attorneys to inmates, has been considerably narrowed in the course of this litigation. The prison regulation under challenge provided that ‘(a)ll incoming and outgoing mail will be read and inspected,’ and no exception was made for attorney-prisoner mail. x x x

Petitioners now concede that they cannot open and read mail from attorneys to inmates, but contend that they may open all letters from attorneys as long as it is done in the presence of the prisoners. The narrow issue thus presented is whether letters determined or found to be from attorneys may be opened by prison authorities in the presence of the inmate or whether such mail must be delivered unopened if normal detection techniques fail to indicate contraband. x x x x x x If prison officials had to check in each case whether a communication was from an attorney before opening it for inspection, a near impossible task of administration would be imposed. We think it entirely appropriate that the State require any such communications to be specially marked as originating from an attorney, with his name and address being given, if they are to receive special treatment. It would also certainly be permissible that prison authorities require that a lawyer desiring to correspond with a prisoner, first identify himself and his client to the prison officials, to assure that the letters marked privileged are actually from members of the bar. As to the ability to open the mail in the presence of inmates, this could in no way constitute censorship, since the mail would not be read. Neither could it chill such communications, since the inmate’s presence insures that prison officials will not read the mail. The possibility that contraband will be enclosed in letters, even those from apparent attorneys, surely warrants prison officials’ opening the letters. We disagree with the Court of Appeals that this should only be done in ‘appropriate circumstances.’ Since a flexible test, besides being unworkable, serves no arguable purpose in protecting any of the possible constitutional rights enumerated by respondent, we think that petitioners, by acceding to a rule whereby the inmate is present when mail from attorneys is inspected, have done all, and perhaps even more, than the Constitution requires.51

In Hudson v. Palmer,52 the U.S. Supreme Court ruled that an inmate has no reasonable expectation of privacy inside his cell. The U.S. Supreme Court explained that prisoners necessarily lose many protections of the Constitution, thus:

However, while persons imprisoned for crime enjoy many protections of the Constitution, it is also clear that imprisonment carries with it the circumscription or loss of many significant rights. These constraints on inmates, and in some cases the complete withdrawal of certain rights, are "justified by the considerations underlying our penal system." The curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of "institutional needs and objectives" of prison facilities, chief among which is internal security. Of course, these restrictions or retractions also serve, incidentally, as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction.53

The later case of State v. Dunn,54 citing Hudson v. Palmer, abandoned Palmigiano v. Travisono and made no distinction as to the detainees’ limited right to privacy. State v. Dunn noted the considerable jurisprudence in the United States holding that inmate mail may be censored for the furtherance of a substantial government interest such as security or discipline. State v. Dunn declared that if complete censorship is permissible, then the lesser act of opening the mail and reading it is also permissible. We quote State v. Dunn:

[A] right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order. We are satisfied that society would insist that the prisoner’s expectation of privacy always yield to what must be considered a paramount interest in institutional security. We believe that it is accepted by our society that "[l]oss of freedom of choice and privacy are inherent incidents of confinement."

The distinction between the limited privacy rights of a pre-trial detainee and a convicted inmate has been blurred as courts in the U.S. ruled that pre-trial detainees might occasionally pose an even greater security risk than convicted inmates. Bell v. Wolfish reasoned that those who are detained prior to trial may in many cases be individuals who are charged with serious crimes or who have prior records and may therefore pose a greater risk of escape than convicted inmates.55 Valencia v. Wiggins56 further held that "it is impractical to draw a line between convicted prisoners and pre-trial detainees for the purpose of maintaining jail security."

American cases recognize that the unmonitored use of pre-trial detainees’ non- privileged mail poses a genuine threat to jail security.57 Hence, when a detainee places his letter in an envelope for non-privileged mail, the detainee knowingly exposes his letter to possible inspection by jail officials.58 A pre-trial detainee has no reasonable expectation of privacy for his incoming mail.59 However, incoming mail from lawyers of inmates enjoys limited protection such that prison officials can open and inspect the mail for contraband but could not read the contents without violating the inmates’ right to correspond with his lawyer.60 The inspection of privileged mail is limited to physical contraband and not to verbal contraband.61

Thus, we do not agree with the Court of Appeals that the opening and reading of the detainees’ letters in the present case violated the detainees’ right to privacy of communication. The letters were not in a sealed envelope. The inspection of the folded letters is a valid measure as it serves the same purpose as the opening of sealed letters for the inspection of contraband. The letters alleged to have been read by the ISAFP authorities were not confidential letters between the detainees and their lawyers. The petitioner who received the letters from detainees Trillanes and Maestrecampo was merely acting as the detainees’ personal courier and not as their counsel when he received the letters for mailing. In the present case, since the letters were not confidential communication between the detainees and their lawyers, the officials of the ISAFP Detention Center could read the letters. If the letters are marked confidential communication between the detainees and their lawyers, the detention officials should not read the letters but only open the envelopes for inspection in the presence of the detainees.

That a law is required before an executive officer could intrude on a citizen’s privacy rights62 is a guarantee that is available only to the public at large but not to persons who are detained or imprisoned. The right to privacy of those detained is subject to Section 4 of RA 7438, as well as to the limitations inherent in lawful detention or imprisonment. By the very fact of their detention, pre-trial detainees and convicted prisoners have a diminished expectation of privacy rights.

In assessing the regulations imposed in detention and prison facilities that are alleged to infringe on the constitutional rights of the detainees and convicted prisoners, U.S. courts "balance the guarantees of the Constitution with the legitimate concerns of prison administrators."63 The deferential review of such regulations stems from the principle that:

[s]ubjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration.64

The detainees in the present case are junior officers accused of leading 300 soldiers in committing coup d’etat, a crime punishable with reclusion perpetua.65 The junior officers are not ordinary detainees but visible leaders of the Oakwood incident involving an armed takeover of a civilian building in the heart of the financial district of the country. As members of the military armed forces, the detainees are subject to the Articles of War.66

Moreover, the junior officers are detained with other high-risk persons from the Abu Sayyaf and the NPA. Thus, we must give the military custodian a wider range of deference in implementing the regulations in the ISAFP Detention Center. The military custodian is in a better position to know the security risks involved in detaining the junior officers, together with the suspected Abu Sayyaf and NPA members. Since the appropriate regulations depend largely on the security risks involved, we should defer to the regulations adopted by the military custodian in the absence of patent arbitrariness. The ruling in this case, however, does not foreclose the right of detainees and convicted prisoners from petitioning the courts for the redress of grievances. Regulations and conditions in detention and prison facilities that violate the Constitutional rights of the detainees and prisoners will be reviewed by the courts on a case-by-case basis. The courts could afford injunctive relief or damages to the detainees and prisoners subjected to arbitrary and inhumane conditions. However, habeas corpus is not the proper mode to question conditions of confinement.67 The writ of habeas corpus will only lie if what is challenged is the fact or duration of confinement.68

WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of Appeals in CA-G.R. SP No. 78545.

No pronouncement as to costs.

SO ORDERED.

G.R. No. L-68635 May 14, 1987

IN THE MATTER OF PROCEEDINGS FOR DISCIPLINARY ACTION AGAINST ATTY. WENCESLAO LAURETA, AND OF CONTEMPT PROCEEDINGS AGAINST EVA MARAVILLA-ILUSTRE in G.R. No. 68635, entitled "EVA MARAVILLA- ILUSTRE, vs. HON. INTERMEDIATE APPELLATE COURT, ET AL."

R E S O L U T I O N

PER CURIAM:

Before us are 1) Atty. Wenceslao Laureta's Motion for Reconsideration of the Per Curiam Resolution of this Court promulgated on March 12, 1987, finding him guilty of grave professional misconduct and suspending him indefinitely from the practice of law; and 2) Eva Maravilla-Ilustre's Motion for Reconsideration of the same Resolution holding her in contempt and ordering her to pay a fine of P1,000.00.chanrobles virtual law library

Essentially, Atty. Laureta maintains that the Order of suspension without hearing violated his right to life and due process of law and by reason thereof the Order is null and void; that the acts of misconduct imputed to him are without basis; that the charge against him that it was he who had circulated to the press copies of the Complaint filed before the Tanodbayan is unfounded such that, even in this Court's Resolution, his having distributed copies to the press is not stated positively; that the banner headline which appeared In the Daily Express is regrettable but that he was not responsible for such "misleading headline;" that he "did nothing of the sort" being fully conscious of his responsibilities as a law practitioner and officer of the Court; that as a former newspaperman, he would not have been satisfied with merely circulating copies of the Complaint to the press in envelopes where his name appears; "he himself would have written stories about the case in a manner that sells newspapers; even a series of juicy articles perhaps, something that would have further subjected the respondent justices to far worse publicity;" that, on the contrary, the press conference scheduled by Ilustre was cancelled through his efforts in order to prevent any further adverse publicity resulting from the filing of the complaint before the Tanodbayan; that, as a matter of fact, it was this Court's Resolution that was serialized in the Bulletin Today, which newspaper also made him the subject of a scathing editorial but that he "understands the cooperation because after all, the Court rendered a favorable judgment in the Bulletin union case last year;" that he considered it "below his dignity to plead for the chance to present his side" with the Editor, Mr. Ben Rodriguez, "a long-time personal friend" since he "can afford to be the sacrificial lamb if only to help the Honorable Court uphold its integrity;" that he was called by a reporter of DZRH and was asked to comment on the case filed before the Tanodbayan but that his remarks were confined to the filing of the case by Ilustre herself, and that the judgment of the trial Court had attained its finality long ago; that he is not Ilustre's counsel before the Tanodbayan and did not prepare the complaint filed before it, his professional services having been terminated upon the final dismissal of Ilustre's case before this Court; that similarities in the language and phraseology used in the Ilustre letters, in pleadings before this Court and before the Tanodbayan do not prove his authorship since other lawyers "even of a mediocre caliber" could very easily have reproduced them; that the discussions on the merits in the Per Curiam Resolution are "more properly addressed to the Tanodbayan, Justice Raul M. Gonzales being competent to deal with the case before him;" that he takes exception to the accusation that he has manifested lack of respect for and exposed to public ridicule the two highest Courts of the land, all he did having been to call attention to errors or injustice committed in the promulgation of judgments or orders; that he has "not authorized or assisted and/or abetted and could not have prevented the contemptuous statements, conduct, acts and malicious charges of Eva Maravilla Ilustre who was no longer his client when these alleged acts were done; that "he is grateful to this Court for the reminder on the first duty of a lawyer which is to the Court and not to his client, a duty that he has always impressed upon his law students;" and finally, that "for the record, he is sorry for the adverse publicity generated by the filing of the complaint against the Justices before the Tanodbayan."

In her own Motion for Reconsideration, Eva Maravilla-Ilustre also raises as her main ground the alleged deprivation of her constitutional right to due process. She maintains that as contempt proceedings are commonly treated as criminal in nature, the mode of procedure and rules of evidence in criminal prosecution should be assimilated, as far as practicable, in this proceeding, and that she should be given every opportunity to present her side. Additionally, she states that, with some sympathetic lawyers, they made an "investigation" and learned that the Resolution of the First Division was arrived at without any deliberation by its members; that Court personnel were "tight-lipped about the matter, which is shrouded mystery" thereby prompting her to pursue a course which she thought was legal and peaceful; that there is nothing wrong in making public the manner of voting by the Justices, and it was for that reason that she addressed Identical letters to Associate Justices Andres Narvasa, Ameurfina M. Herrera, Isagani Cruz and Florentino Feliciano; that "if the lawyers of my opponents were not a Solicitor General, and member of the Supreme Court and a Division Chairman, respectively, the resolution of May 14, 1986 would not have aroused my suspicion;" that instead of taking the law into her own hands or joining any violent movement, she took the legitimate step of making a peaceful investigation into how her case was decided, and brought her grievance to the Tanodbayan "in exasperation" against those whom she felt had committed injustice against her "in an underhanded manner."

We deny reconsideration in both instances.chanrobles virtual law library

The argument premised on lack of hearing and due process, is not impressed with merit. What due process abhors is absolute lack of opportunity to be heard (Tajonera vs. Lamaroza, et al., 110 SCRA 438 [1981]). The word "hearing" does not necessarily connote a "trial-type" proceeding. In the show-cause Resolution of this Court, dated January 29, 1987, Atty. Laureta was given sufficient opportunity to inform this Court of the reasons why he should not be subjected to dispose action. His Answer, wherein he prayed that the action against him be dismissed, contained twenty-two (22) pages, double spaced. Eva Maravilla-Ilustre was also given a like opportunity to explain her statements, conduct, acts and charges against the Court and/or the official actions of the Justices concerned. Her Compliance Answer, wherein she prayed that the contempt proceeding against her be dismissed, contained nineteen (19) pages, double spaced. Both were afforded ample latitude to explain matters fully. Atty. Laureta denied having authored the letters written by Ilustre, his being her counsel before the Tanodbayan, his having circularized to the press copies of the complaint filed before said body, and his having committed acts unworthy of his profession. But the Court believed otherwise and found that those letters and the charges levelled against the Justices concerned, of themselves and by themselves, betray not only their malicious and contemptuous character, but also the lack of respect for the two highest Courts of the land, a complete obliviousness to the fundamental principle of separation of powers, and a wanton disregard of the cardinal doctrine of independence of the Judiciary. Res ipsa loquitur. Nothing more needed to have been said or proven. The necessity to conduct any further evidentially hearing was obviated (See People vs. Hon. Valenzuela, G.R. Nos. 63950-60, April 19, 1985, 135 SCRA 712). Atty. Laureta and Ilustre were given ample opportunity to be heard, and were, in fact, heard.

(1)

In his Motion for Reconsideration, Atty. Laureta reiterates his allegations in his Answer to the show-cause Resolution that his professional services were terminated by Ilustre after the dismissal of the main petition by this Court; that he had nothing to do with the contemptuous letters to the individual Justices; and that he is not Ilustre's counsel before the Tanodbayan.chanrobles virtual law library

Significantly enough, however, copy of the Tanodbayan Resolution dismissing Ilustre's Complaint was furnished Atty. Laureta as "counsel for the complainant" at his address of record. Of note, too, is the fact that it was he who was following up the Complaint before the Tanodbayan and, after its dismissal, the Motion for Reconsideration of the Order of dismissal.chanrobles virtual law library

Of import, as well, is the report of Lorenzo C. Bardel, a process server of this Court, that after having failed to serve copy of the Per Curiam Resolution of March 12, 1987 of this Court on Ilustre personally at her address of record, "101 F. Manalo St., Cubao, Quezon City," having been informed that she is 6 not a resident of the place," he proceeded to the residence of Atty. Laureta where the latter's wife "voluntarily received the two copies of decision for her husband and for Ms. Maravina-Ilustre" (p. 670, Rollo, Vol. 11).chanrobles virtual law library

That Ilustre subsequently received copy of this Court's Resolution delivered to Mrs. Laureta is shown by the fact that she filed, as of March 27, 1987, a "Petition for Extension of Time to file Motion for Reconsideration" and subsequently the Motion for Reconsideration. In that Petition Ilustre acknowledged receipt of the Resolution on March 12, 1987, the very same date Mrs. Laureta received copy thereof. If, indeed, the lawyer-client relationship between her husband and Ilustre had been allegedly completely severed, all Mrs. Laureta had to do was to return to the Sheriff the copy intended for Ilustre. As it was, however, service on Atty. Laureta proved to be service on Ilustre as well. The close tie- up between the corespondents is heightened by the fact that three process servers of this Court failed to serve copy of this Court's Per Curiam Resolution on Ilustre personally.chanrobles virtual law library

Noteworthy, as well, is that by Atty. Laureta's own admission, he was the one called by a "reporter" of DZRH to comment on the Ilustre charges before the Tanodbayan. If, in fact, he had nothing to do with the complaint, he would not have been pinpointed at all. And if his disclaimer were the truth, the logical step for him to have taken was to refer the caller to the lawyer/s allegedly assisting Ilustre, at the very least, out of elementary courtesy and propriety. But he did nothing of the sort. " He gave his comment with alacrity.chanrobles virtual law library

The impudence and lack of respect of Atty. Laureta for this Court again surfaces when he asserts in his Motion for Reconsideration that he "understands the cooperation" of the Bulletin Today as manifested in the serialized publication of the Per Curiam Resolution of this Court and his being subjected to a scathing editorial by the same newspaper "because after all, the Court rendered a favorable judgment in the Bulletin union case last year." The malice lurking in that statement is most unbecoming of an officer of the Court and is an added reason for denying reconsideration.chanrobles virtual law library

Further, Atty. Laureta stubbornly contends that discussions on the merits in the Court's Per Curiam Resolution are more properly addressed to the Tanodbayan, forgetting, however, his own discourse on the merits in his Answer to this Court's Resolution dated January 29, 1987. He thus incorrigibly insists on subordinating the Judiciary to the executive notwithstanding the categorical pronouncement in the Per Curiam Resolution of March 12, 1987, that Article 204 of the Revised Penal Code has no application to the members of a collegiate Court; that a charge of violation of the Anti-Graft and Corrupt Practices Act on the ground that a collective decision is "unjust" cannot prosper; plus the clear and extended dissertation in the same Per Curiam Resolution on the fundamental principle of separation of powers and of checks and balances, pursuant to which it is this Court "entrusted exclusively with the judicial power to adjudicate with finality all justifiable disputes, public and private. No other department or agency may pass upon its judgments or declare them 'unjust' upon controlling and irresistible reasons of public policy and of sound practice."

Atty. Laureta's protestations that he has done his best to protect and uphold the dignity of this Court are belied by environmental facts and circumstances. His apologetic stance for the "adverse publicity" generated by the filing of the charges against the Justices concerned before the Tanodbayan rings with insincerity. The complaint was calculated precisely to serve that very purpose. The threat to bring the case to "another forum of justice" was implemented to the fun. Besides, he misses the heart of the matter. Exposure to the glare of publicity is an occupational hazard. If he has been visited with disciplinary sanctions it is because by his conduct, acts and statements, he has, overall, deliberately sought to destroy the "authenticity, integrity, and conclusiveness of collegiate acts," to "undermine the role of the Supreme Court as the final arbiter of all justifiable disputes," and to subvert public confidence in the integrity of the Courts and the Justices concerned, and in the orderly administration of justice.chanrobles virtual law library

In fine, we discern nothing in Atty. Laureta's Motion for Reconsideration that would call for a modification, much less a reversal, of our finding that he is guilty of grave professional misconduct that renders him unfit to continue to be entrusted with the duties and responsibilities pertaining to an attorney and officer of the Court.

(2)

Neither do we find merit in Ilustre's Motion for Reconsideration. She has turned deaf ears to any reason or clarification. She and her counsel have refused to accept the untenability of their case and the inevitability of losing in Court. They have allowed suspicion alone to blind their actions and in so doing degraded the administration of justice. "Investigation" was utterly uncalled for. All conclusions and judgments of the Court, be they en banc or by Division, are arrived at only after deliberation. The fact that no dissent was indicated in the Minutes of the proceedings held on May 14, 1986 showed that the members of the Division voted unanimously. Court personnel are not in a position to know the voting in any case because all deliberations are held behind closed doors without any one of them being present. No malicious inferences should have been drawn from their inability to furnish the information Ilustre and Atty. Laureta desired The personality of the Solicitor General never came into the picture. It was Justice Abad Santos, and not Justice Yap, who was Chairman of the First Division when the Resolution of May 14, 1986 denying the Petition was rendered. Thereafter Justice Yap inhibited himself from any participation. The fact that the Court en banc upheld the challenged Resolutions of the First Division emphasizes the irrespective of Ilustre's case irrespective of the personalities involved.chanrobles virtual law library

Additionally, Ilustre has been trifling with this Court. She has given our process servers the run-around. Three of them failed to serve on her personally her copy of this Court's Per Curiam Resolution of March 12, 1987 at her address of record. Mrs. Laureta informed process server Lorenzo C. Bardel that Ilustre was residing at 17-D, Quezon St., Tondo, Manila. Romeo C. Regala, another process server, went to that address to serve copy of the Resolution but he reported:

4. That inspite of diligent efforts to locate the address of ms.Eva Maravilla-Ilustre, said address could not be located;

5. That I even asked the occupants (Cerdan Family) of No. 17 Quezon Street, Tondo, Manila, and they informed that there is no such Ms. Eva Maravilla-Ilustre in the neighborhood and/or in the vicinity; ... (p. 672, Rollo, Vol. 11).

The third process server, Nelson C. Cabesuela, was also unable to serve copy of this Court's Resolution on Ilustre. He reported:

2. On March 17, 1987, at about 9:30 A.M., I arrived at the house in the address furnished at; the notice of judgment (101 Felix Manalo St., Cubao, Quezon City), and was received by an elderly woman who admitted to be the owner of the house but vehemently refused to be Identified, and told me that she does not know the addressee Maravilla, and told me further that she always meets different persons looking for Miss Maravilla because the latter always gives the address of her house;

3. That, I was reminded of an incident that I also experienced in the same place trying to serve a resolution to Miss Maravilla which was returned unserved because she is not known in the place; ... (p. 674, Rollo, Vol. II).

And yet, in her Petition for Extension of Time and in her Motion for Reconsideration she persists in giving that address at 101 Felix Manalo St., Cubao, Quezon City, where our process servers were told that she was not a resident of and that she was unknown thereat. If for her contumacious elusiveness and lack of candor alone, Ilustre deserves no further standing before this Court.chanrobles virtual law library

ACCORDINGLY, the respective Motions for reconsideration of Atty. Wenceslao G. Laureta for the setting aside of the order suspending him from the practice of law, and of Eva Maravilla Ilustre for the lifting of the penalty for contempt are DENIED, and this denial is FINAL. Eva Maravilla Ilustre shall pay the fine of P1,000.00 imposed on her within ten (10) days from notice, or, suffer imprisonment for ten (10) days upon failure to pay said fine within the stipulated period.chanrobles virtual law library

SO ORDERED.

G.R. No. 157870 November 3, 2008

SOCIAL JUSTICE SOCIETY (SJS), petitioner vs. DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA),respondents. x ------x

G.R. No. 158633 November 3, 2008

ATTY. MANUEL J. LASERNA, JR., petitioner vs. DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY, respondents. x ------x

G.R. No. 161658 November 3, 2008

AQUILINO Q. PIMENTEL, JR., petitioner vs. COMMISSION ON ELECTIONS, respondents.

D E C I S I O N

VELASCO, JR., J.:

In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor's office with certain offenses, among other personalities, is put in issue. As far as pertinent, the challenged section reads as follows:

SEC. 36. Authorized Drug Testing. - Authorized drug testing shall be done by any government forensic laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the quality of the test results. x x x The drug testing shall employ, among others, two (2) testing methods, the screening test which will determine the positive result as well as the type of drug used and the confirmatory test which will confirm a positive screening test. x x x The following shall be subjected to undergo drug testing: x x x x

(c) Students of secondary and tertiary schools. - Students of secondary and tertiary schools shall, pursuant to the related rules and regulations as contained in the school's student handbook and with notice to the parents, undergo a random drug testing x x x;

(d) Officers and employees of public and private offices. - Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the company's work rules and regulations, x x x for purposes of reducing the risk in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law; x x x x

(f) All persons charged before the prosecutor's office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory drug test;

(g) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test.

In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of this Act.

G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)

On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486, prescribing the rules and regulations on the mandatory drug testing of candidates for public office in connection with the May 10, 2004 synchronized national and local elections. The pertinent portions of the said resolution read as follows:

WHEREAS, Section 36 (g) of Republic Act No. 9165 provides: SEC. 36. Authorized Drug Testing. - x x x x x x x

(g) All candidates for public office x x x both in the national or local government shall undergo a mandatory drug test.

WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency;

WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know the quality of candidates they are electing and they will be assured that only those who can serve with utmost responsibility, integrity, loyalty, and efficiency would be elected x x x.

NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the Constitution, Batas Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other election laws, RESOLVED to promulgate, as it hereby promulgates, the following rules and regulations on the conduct of mandatory drug testing to candidates for public office[:]

SECTION 1. Coverage. - All candidates for public office, both national and local, in the May 10, 2004 Synchronized National and Local Elections shall undergo mandatory drug test in government forensic laboratories or any drug testing laboratories monitored and accredited by the Department of Health.

SEC. 3. x x x

On March 25, 2004, in addition to the drug certificates filed with their respective offices, the Comelec Offices and employees concerned shall submit to the Law Department two (2) separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply x x x.

SEC. 4. Preparation and publication of names of candidates. - Before the start of the campaign period, the [COMELEC] shall prepare two separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply with said drug test. x x x

SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate. - No person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test and filed with the offices enumerated under Section 2 hereof the drug test certificate herein required. (Emphasis supplied.) Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re - election in the May 10, 2004 elections,1 filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being unconstitutional in that they impose a qualification for candidates for senators in addition to those already provided for in the 1987 Constitution; and (2) to enjoin the COMELEC from implementing Resolution No. 6486.

Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states:

SECTION 3. No person shall be a Senator unless he is a natural - born citizen of the Philippines, and, on the day of the election, is at least thirty - five years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election.

According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be a candidate for, elected to, and be a member of the Senate. He says that both the Congress and COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other candidates, to undergo a mandatory drug test, create an additional qualification that all candidates for senator must first be certified as drug free. He adds that there is no provision in the Constitution authorizing the Congress or COMELEC to expand the qualification requirements of candidates for senator.

G.R. No. 157870 (Social Justice Society v. Dangerous Drugs Board and Philippine Drug Enforcement Agency)

In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are constitutionally infirm. For one, the provisions constitute undue delegation of legislative power when they give unbridled discretion to schools and employers to determine the manner of drug testing. For another, the provisions trench in the equal protection clause inasmuch as they can be used to harass a student or an employee deemed undesirable. And for a third, a person's constitutional right against unreasonable searches is also breached by said provisions.

G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous Drugs Board and Philippine Drug Enforcement Agency)

Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional for infringing on the constitutional right to privacy, the right against unreasonable search and seizure, and the right against self - incrimination, and for being contrary to the due process and equal protection guarantees.

The Issue on Locus Standi

First off, we shall address the justiciability of the cases at bench and the matter of the standing of petitioners SJS and Laserna to sue. As respondents DDB and PDEA assert, SJS and Laserna failed to allege any incident amounting to a violation of the constitutional rights mentioned in their separate petitions.2

It is basic that the power of judicial review can only be exercised in connection with a bona fidecontroversy which involves the statute sought to be reviewed.3 But even with the presence of an actual case or controversy, the Court may refuse to exercise judicial review unless the constitutional question is brought before it by a party having the requisite standing to challenge it.4 To have standing, one must establish that he or she has suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action.5

The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non - traditional plaintiffs, like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is of transcendental importance, of overarching significance to society, or of paramount public interest.6 There is no doubt that Pimentel, as senator of the Philippines and candidate for the May 10, 2004 elections, possesses the requisite standing since he has substantial interests in the subject matter of the petition, among other preliminary considerations. Regarding SJS and Laserna, this Court is wont to relax the rule on locus standi owing primarily to the transcendental importance and the paramount public interest involved in the enforcement of Sec. 36 of RA 9165.

The Consolidated Issues

The principal issues before us are as follows:

(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for senator in addition to those laid down by the Constitution? and

(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the equal protection clause? Or do they constitute undue delegation of legislative power?

Pimentel Petition (Constitutionality of Sec. 36[g] of RA 9165 and COMELEC Resolution No. 6486) In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose an additional qualification on candidates for senator. He points out that, subject to the provisions on nuisance candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3, Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5) residency. Beyond these stated qualification requirements, candidates for senator need not possess any other qualification to run for senator and be voted upon and elected as member of the Senate. The Congress cannot validly amend or otherwise modify these qualification standards, as it cannot disregard, evade, or weaken the force of a constitutional mandate,7 or alter or enlarge the Constitution.

Pimentel's contention is well - taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby declared as, unconstitutional. It is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with the Constitution.8 In the discharge of their defined functions, the three departments of government have no choice but to yield obedience to the commands of the Constitution. Whatever limits it imposes must be observed.9

Congress' inherent legislative powers, broad as they may be, are subject to certain limitations. As early as 1927, in Government v. Springer, the Court has defined, in the abstract, the limits on legislative power in the following wise:

Someone has said that the powers of the legislative department of the Government, like the boundaries of the ocean, are unlimited. In constitutional governments, however, as well as governments acting under delegated authority, the powers of each of the departments x x x are limited and confined within the four walls of the constitution or the charter, and each department can only exercise such powers as are necessarily implied from the given powers. The Constitution is the shore of legislative authority against which the waves of legislative enactment may dash, but over which it cannot leap.10

Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional limitations which circumscribe both the exercise of the power itself and the allowable subjects of legislation.11 The substantive constitutional limitations are chiefly found in the Bill of Rights12 and other provisions, such as Sec. 3, Art. VI of the Constitution prescribing the qualifications of candidates for senators.

In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or promulgating rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates for senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for senator to meet such additional qualification, the COMELEC, to be sure, is also without such power. The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution.13

Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36(g) unmistakably requires a candidate for senator to be certified illegal - drug clean, obviously as a pre - condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed as senator - elect. The COMELEC resolution completes the chain with the proviso that "[n]o person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test." Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate. Whether or not the drug - free bar set up under the challenged provision is to be hurdled before or after election is really of no moment, as getting elected would be of little value if one cannot assume office for non - compliance with the drug - testing requirement.

It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does not expressly state that non - compliance with the drug test imposition is a disqualifying factor or would work to nullify a certificate of candidacy. This argument may be accorded plausibility if the drug test requirement is optional. But the particular section of the law, without exception, made drug - testing on those covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer the adverse consequences for not adhering to the statutory command. And since the provision deals with candidates for public office, it stands to reason that the adverse consequence adverted to can only refer to and revolve around the election and the assumption of public office of the candidates. Any other construal would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without meaning and effect whatsoever.

While it is anti - climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer enforceable, for by its terms, it was intended to cover only the May 10, 2004 synchronized elections and the candidates running in that electoral event. Nonetheless, to obviate repetition, the Court deems it appropriate to review and rule, as it hereby rules, on its validity as an implementing issuance.

It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165 is rooted on its having infringed the constitutional provision defining the qualification or eligibility requirements for one aspiring to run for and serve as senator. SJS Petition (Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)

The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level students and public and private employees, while mandatory, is a random and suspicionless arrangement. The objective is to stamp out illegal drug and safeguard in the process "the well being of [the] citizenry, particularly the youth, from the harmful effects of dangerous drugs." This statutory purpose, per the policy - declaration portion of the law, can be achieved via the pursuit by the state of "an intensive and unrelenting campaign against the trafficking and use of dangerous drugs x x x through an integrated system of planning, implementation and enforcement of anti - drug abuse policies, programs and projects."14 The primary legislative intent is not criminal prosecution, as those found positive for illegal drug use as a result of this random testing are not necessarily treated as criminals. They may even be exempt from criminal liability should the illegal drug user consent to undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this point:

Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and Rehabilitation. - A drug dependent or any person who violates Section 15 of this Act may, by himself/herself or through his/her parent, [close relatives] x x x apply to the Board x x x for treatment and rehabilitation of the drug dependency. Upon such application, the Board shall bring forth the matter to the Court which shall order that the applicant be examined for drug dependency. If the examination x x x results in the certification that the applicant is a drug dependent, he/she shall be ordered by the Court to undergo treatment and rehabilitation in a Center designated by the Board x x x. x x x x

Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program. - A drug dependent under the voluntary submission program, who is finally discharged from confinement, shall be exempt from the criminal liability under Section 15 of this Act subject to the following conditions: x x x x

School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and addictive effects of drugs. Maturing nervous systems of the young are more critically impaired by intoxicants and are more inclined to drug dependency. Their recovery is also at a depressingly low rate.15

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against unreasonable search and seizure16 under Sec. 2, Art. III17 of the Constitution. But while the right to privacy has long come into its own, this case appears to be the first time that the validity of a state - decreed search or intrusion through the medium of mandatory random drug testing among students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these proceedings is veritably one of first impression.

US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug testing among school children, we turn to the teachings of Vernonia School District 47J v. Acton (Vernonia) and Board of Education of Independent School District No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board of Education),18 both fairly pertinent US Supreme Court - decided cases involving the constitutionality of governmental search.

In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their respective institutions following the discovery of frequent drug use by school athletes. After consultation with the parents, they required random urinalysis drug testing for the school's athletes. James Acton, a high school student, was denied participation in the football program after he refused to undertake the urinalysis drug testing. Acton forthwith sued, claiming that the school's drug testing policy violated, inter alia, the Fourth Amendment19 of the US Constitution.

The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the following: (1) schools stand in loco parentis over their students; (2) school children, while not shedding their constitutional rights at the school gate, have less privacy rights; (3) athletes have less privacy rights than non - athletes since the former observe communal undress before and after sports events; (4) by joining the sports activity, the athletes voluntarily subjected themselves to a higher degree of school supervision and regulation; (5) requiring urine samples does not invade a student's privacy since a student need not undress for this kind of drug testing; and (6) there is need for the drug testing because of the dangerous effects of illegal drugs on the young. The US Supreme Court held that the policy constituted reasonable search under the Fourth20 and 14th Amendments and declared the random drug - testing policy constitutional.

In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test for high school students desiring to join extra - curricular activities. Lindsay Earls, a member of the show choir, marching band, and academic team declined to undergo a drug test and averred that the drug - testing policy made to apply to non - athletes violated the Fourth and 14th Amendments. As Earls argued, unlike athletes who routinely undergo physical examinations and undress before their peers in locker rooms, non - athletes are entitled to more privacy.

The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non - athletes on the basis of the school's custodial responsibility and authority. In so ruling, said court made no distinction between a non - athlete and an athlete. It ratiocinated that schools and teachers act in place of the parents with a similar interest and duty of safeguarding the health of the students. And in holding that the school could implement its random drug - testing policy, the Court hinted that such a test was a kind of search in which even a reasonable parent might need to engage.

In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1) schools and their administrators stand in loco parentis with respect to their students; (2) minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and well - being of their students and may adopt such measures as may reasonably be necessary to discharge such duty; and (4) schools have the right to impose conditions on applicants for admission that are fair, just, and non-discriminatory.

Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements.

The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the well - being of the people,21 particularly the youth and school children who usually end up as victims. Accordingly, and until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected. To borrow from Vernonia, "[d]eterring drug use by our Nation's schoolchildren is as important as enhancing efficient enforcement of the Nation's laws against the importation of drugs"; the necessity for the State to act is magnified by the fact that the effects of a drug - infested school are visited not just upon the users, but upon the entire student body and faculty.22 Needless to stress, the random testing scheme provided under the law argues against the idea that the testing aims to incriminate unsuspecting individual students.

Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable, albeit not exactly for the same reason. The Court notes in this regard that petitioner SJS, other than saying that "subjecting almost everybody to drug testing, without probable cause, is unreasonable, an unwarranted intrusion of the individual right to privacy,"23 has failed to show how the mandatory, random, and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the Constitution.24 Petitioner Laserna's lament is just as simplistic, sweeping, and gratuitous and does not merit serious consideration. Consider what he wrote without elaboration:

The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the constitutionality of mandatory drug tests in the school and the workplaces. The US courts have been consistent in their rulings that the mandatory drug tests violate a citizen's constitutional right to privacy and right against unreasonable search and seizure. They are quoted extensively hereinbelow.25

The essence of privacy is the right to be left alone.26 In context, the right to privacy means the right to be free from unwarranted exploitation of one's person or from intrusion into one's private activities in such a way as to cause humiliation to a person's ordinary sensibilities. 27 And while there has been general agreement as to the basic function of the guarantee against unwarranted search, "translation of the abstract prohibition against ‘unreasonable searches and seizures' into workable broad guidelines for the decision of particular cases is a difficult task," to borrow from C. Camara v. Municipal Court.28 Authorities are agreed though that the right to privacy yields to certain paramount rights of the public and defers to the state's exercise of police power.29

As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held, "reasonableness" is the touchstone of the validity of a government search or intrusion.30 And whether a search at issue hews to the reasonableness standard is judged by the balancing of the government - mandated intrusion on the individual's privacy interest against the promotion of some compelling state interest.31 In the criminal context, reasonableness requires showing of probable cause to be personally determined by a judge. Given that the drug - testing policy for employees--and students for that matter--under RA 9165 is in the nature of administrative search needing what was referred to inVernonia as "swift and informal disciplinary procedures," the probable - cause standard is not required or even practicable. Be that as it may, the review should focus on the reasonableness of the challenged administrative search in question.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees' privacy interest in an office is to a large extent circumscribed by the company's work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld. Just as defining as the first factor is the character of the intrusion authorized by the challenged law. Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated in Ople v. Torres, is the enabling law authorizing a search "narrowly drawn" or "narrowly focused"?32

The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules and regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation that would unduly embarrass the employees or place them under a humiliating experience. While every officer and employee in a private establishment is under the law deemed forewarned that he or she may be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to discourage drug use by not telling in advance anyone when and who is to be tested. And as may be observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by providing that the employees concerned shall be subjected to "random drug test as contained in the company's work rules and regulations x x x for purposes of reducing the risk in the work place."

For another, the random drug testing shall be undertaken under conditions calculated to protect as much as possible the employee's privacy and dignity. As to the mechanics of the test, the law specifies that the procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless to ensure as much as possible the trustworthiness of the results. But the more important consideration lies in the fact that the test shall be conducted by trained professionals in access - controlled laboratories monitored by the Department of Health (DOH) to safeguard against results tampering and to ensure an accurate chain of custody.33 In addition, the IRR issued by the DOH provides that access to the drug results shall be on the "need to know" basis;34 that the "drug test result and the records shall be [kept] confidential subject to the usual accepted practices to protect the confidentiality of the test results."35 Notably, RA 9165 does not oblige the employer concerned to report to the prosecuting agencies any information or evidence relating to the violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing. All told, therefore, the intrusion into the employees' privacy, under RA 9165, is accompanied by proper safeguards, particularly against embarrassing leakages of test results, and is relatively minimal.

To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the well - being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The law intends to achieve this through the medium, among others, of promoting and resolutely pursuing a national drug abuse policy in the workplace via a mandatory random drug test.36 To the Court, the need for drug testing to at least minimize illegal drug use is substantial enough to override the individual's privacy interest under the premises. The Court can consider that the illegal drug menace cuts across gender, age group, and social - economic lines. And it may not be amiss to state that the sale, manufacture, or trafficking of illegal drugs, with their ready market, would be an investor's dream were it not for the illegal and immoral components of any of such activities. The drug problem has hardly abated since the martial law public execution of a notorious drug trafficker. The state can no longer assume a laid back stance with respect to this modern - day scourge. Drug enforcement agencies perceive a mandatory random drug test to be an effective way of preventing and deterring drug use among employees in private offices, the threat of detection by random testing being higher than other modes. The Court holds that the chosen method is a reasonable and enough means to lick the problem.

Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well - defined limits set forth in the law to properly guide authorities in the conduct of the random testing, we hold that the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, constitutional.

Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the public service.37 And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with utmost responsibility and efficiency.38

Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation of power hardly commends itself for concurrence. Contrary to its position, the provision in question is not so extensively drawn as to give unbridled options to schools and employers to determine the manner of drug testing. Sec. 36 expressly provides how drug testing for students of secondary and tertiary schools and officers/employees of public/private offices should be conducted. It enumerates the persons who shall undergo drug testing. In the case of students, the testing shall be in accordance with the school rules as contained in the student handbook and with notice to parents. On the part of officers/employees, the testing shall take into account the company's work rules. In either case, the random procedure shall be observed, meaning that the persons to be subjected to drug test shall be picked by chance or in an unplanned way. And in all cases, safeguards against misusing and compromising the confidentiality of the test results are established.

Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH, Department of the Interior and Local Government, Department of Education, and Department of Labor and Employment, among other agencies, the IRR necessary to enforce the law. In net effect then, the participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA 9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to determine how often, under what conditions, and where the drug tests shall be conducted.

The validity of delegating legislative power is now a quiet area in the constitutional landscape.39 In the face of the increasing complexity of the task of the government and the increasing inability of the legislature to cope directly with the many problems demanding its attention, resort to delegation of power, or entrusting to administrative agencies the power of subordinate legislation, has become imperative, as here.

Laserna Petition (Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)

Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement.

We find the situation entirely different in the case of persons charged before the public prosecutor's office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are "randomness" and "suspicionless." In the case of persons charged with a crime before the prosecutor's office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor's office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy.40 To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons' right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.

WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and toPARTIALLY GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) ofRA 9165 CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are, accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs.

SO ORDERED.

G.R. No. 181881 October 18, 2011

BRICCIO "Ricky" A. POLLO, Petitioner, vs. CHAIRPERSON KARINA CONSTANTINO-DAVID, DIRECTOR IV RACQUEL DE GUZMAN BUENSALIDA, DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR III ENGELBERT ANTHONY D. UNITE AND THE CIVIL SERVICE COMMISSION, Respondents.

D E C I S I O N

VILLARAMA, JR., J.:

This case involves a search of office computer assigned to a government employee who was charged administratively and eventually dismissed from the service. The employee’s personal files stored in the computer were used by the government employer as evidence of misconduct.

Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and set aside the Decision1dated October 11, 2007 and Resolution2 dated February 29, 2008 of the Court of Appeals (CA). The CA dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by petitioner Briccio "Ricky" A. Pollo to nullify the proceedings conducted by the Civil Service Commission (CSC) which found him guilty of dishonesty, grave misconduct, conduct prejudicial to the best interest of the service, and violation of Republic Act (R.A.) No. 6713 and penalized him with dismissal.

The factual antecedents:

Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and also the Officer-in-Charge of the Public Assistance and Liaison Division (PALD) under the "Mamamayan Muna Hindi Mamaya Na" program of the CSC.

On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to respondent CSC Chairperson Karina Constantino-David which was marked "Confidential" and sent through a courier service (LBC) from a certain "Alan San Pascual" of Bagong Silang, Caloocan City, was received by the Integrated Records Management Office (IRMO) at the CSC Central Office. Following office practice in which documents marked "Confidential" are left unopened and instead sent to the addressee, the aforesaid letter was given directly to Chairperson David.

The letter-complaint reads:

The Chairwoman Civil Service Commission Batasan Hills, Quezon City

Dear Madam Chairwoman,

Belated Merry Christmas and Advance Happy New Year!

As a concerned citizen of my beloved country, I would like to ask from you personally if it is just alright for an employee of your agency to be a lawyer of an accused gov’t employee having a pending case in the csc. I honestly think this is a violation of law and unfair to others and your office.

I have known that a person have been lawyered by one of your attorny in the region 4 office. He is the chief of the Mamamayan muna hindi mamaya na division. He have been helping many who have pending cases in the Csc. The justice in our govt system will not be served if this will continue. Please investigate this anomaly because our perception of your clean and good office is being tainted.

Concerned Govt employee3 Chairperson David immediately formed a team of four personnel with background in information technology (IT), and issued a memo directing them to conduct an investigation and specifically "to back up all the files in the computers found in the Mamamayan Muna (PALD) and Legal divisions."4After some briefing, the team proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon City. Upon their arrival thereat around 5:30 p.m., the team informed the officials of the CSC-ROIV, respondents Director IV Lydia Castillo (Director Castillo) and Director III Engelbert Unite (Director Unite) of Chairperson David’s directive.

The backing-up of all files in the hard disk of computers at the PALD and Legal Services Division (LSD) was witnessed by several employees, together with Directors Castillo and Unite who closely monitored said activity. At around 6:00 p.m., Director Unite sent text messages to petitioner and the head of LSD, who were both out of the office at the time, informing them of the ongoing copying of computer files in their divisions upon orders of the CSC Chair. The text messages received by petitioner read:

"Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD per instruction of the Chairman. If you can make it here now it would be better."

"All PCs Of PALD and LSD are being backed up per memo of the chair." "CO IT people arrived just now for this purpose. We were not also informed about this.

"We can’t do anything about … it … it’s a directive from chair."

"Memo of the chair was referring to an anonymous complaint"; "ill send a copy of the memo via mms"5

Petitioner replied also thru text message that he was leaving the matter to Director Unite and that he will just get a lawyer. Another text message received by petitioner from PALD staff also reported the presence of the team from CSC main office: "Sir may mga taga C.O. daw sa kuarto natin."6 At around 10:00 p.m. of the same day, the investigating team finished their task. The next day, all the computers in the PALD were sealed and secured for the purpose of preserving all the files stored therein. Several diskettes containing the back-up files sourced from the hard disk of PALD and LSD computers were turned over to Chairperson David. The contents of the diskettes were examined by the CSC’s Office for Legal Affairs (OLA). It was found that most of the files in the 17 diskettes containing files copied from the computer assigned to and being used by the petitioner, numbering about 40 to 42 documents, were draft pleadings or letters7 in connection with administrative cases in the CSC and other tribunals. On the basis of this finding, Chairperson David issued the Show-Cause Order8 dated January 11, 2007, requiring the petitioner, who had gone on extended leave, to submit his explanation or counter-affidavit within five days from notice.

Evaluating the subject documents obtained from petitioner’s personal files, Chairperson David made the following observations:

Most of the foregoing files are drafts of legal pleadings or documents that are related to or connected with administrative cases that may broadly be lumped as pending either in the CSCRO No. IV, the CSC-NCR, the CSC-Central Office or other tribunals. It is also of note that most of these draft pleadings are for and on behalves of parties, who are facing charges as respondents in administrative cases. This gives rise to the inference that the one who prepared them was knowingly, deliberately and willfully aiding and advancing interests adverse and inimical to the interest of the CSC as the central personnel agency of the government tasked to discipline misfeasance and malfeasance in the government service. The number of pleadings so prepared further demonstrates that such person is not merely engaged in an isolated practice but pursues it with seeming regularity. It would also be the height of naivete or credulity, and certainly against common human experience, to believe that the person concerned had engaged in this customary practice without any consideration, and in fact, one of the retrieved files (item 13 above) appears to insinuate the collection of fees. That these draft pleadings were obtained from the computer assigned to Pollo invariably raises the presumption that he was the one responsible or had a hand in their drafting or preparation since the computer of origin was within his direct control and disposition.9

Petitioner filed his Comment, denying that he is the person referred to in the anonymous letter-complaint which had no attachments to it, because he is not a lawyer and neither is he "lawyering" for people with cases in the CSC. He accused CSC officials of conducting a "fishing expedition" when they unlawfully copied and printed personal files in his computer, and subsequently asking him to submit his comment which violated his right against self-incrimination. He asserted that he had protested the unlawful taking of his computer done while he was on leave, citing the letter dated January 8, 2007 in which he informed Director Castillo that the files in his computer were his personal files and those of his sister, relatives, friends and some associates and that he is not authorizing their sealing, copying, duplicating and printing as these would violate his constitutional right to privacy and protection against self-incrimination and warrantless search and seizure. He pointed out that though government property, the temporary use and ownership of the computer issued under a Memorandum of Receipt (MR) is ceded to the employee who may exercise all attributes of ownership, including its use for personal purposes. As to the anonymous letter, petitioner argued that it is not actionable as it failed to comply with the requirements of a formal complaint under the Uniform Rules on Administrative Cases in the Civil Service (URACC). In view of the illegal search, the files/documents copied from his computer without his consent is thus inadmissible as evidence, being "fruits of a poisonous tree."10

On February 26, 2007, the CSC issued Resolution No. 07038211 finding prima facie case against the petitioner and charging him with Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees). Petitioner was directed to submit his answer under oath within five days from notice and indicate whether he elects a formal investigation. Since the charges fall under Section 19 of the URACC, petitioner was likewise placed under 90 days preventive suspension effective immediately upon receipt of the resolution. Petitioner received a copy of Resolution No. 070382 on March 1, 2007.

Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing the formal charge as without basis having proceeded from an illegal search which is beyond the authority of the CSC Chairman, such power pertaining solely to the court. Petitioner reiterated that he never aided any people with pending cases at the CSC and alleged that those files found in his computer were prepared not by him but by certain persons whom he permitted, at one time or another, to make use of his computer out of close association or friendship. Attached to the motion were the affidavit of Atty. Ponciano R. Solosa who entrusted his own files to be kept at petitioner’s CPU and Atty. Eric N. Estrellado, the latter being Atty. Solosa’s client who attested that petitioner had nothing to do with the pleadings or bill for legal fees because in truth he owed legal fees to Atty. Solosa and not to petitioner. Petitioner contended that the case should be deferred in view of the prejudicial question raised in the criminal complaint he filed before the Ombudsman against Director Buensalida, whom petitioner believes had instigated this administrative case. He also prayed for the lifting of the preventive suspension imposed on him. In its Resolution No. 07051912 dated March 19, 2007, the CSC denied the omnibus motion. The CSC resolved to treat the said motion as petitioner’s answer.

On March 14, 2007, petitioner filed an Urgent Petition13 under Rule 65 of the Rules of Court, docketed as CA-G.R. SP No. 98224, assailing both the January 11, 2007 Show- Cause Order and Resolution No. 070382 dated February 26, 2007 as having been issued with grave abuse of discretion amounting to excess or total absence of jurisdiction. Prior to this, however, petitioner lodged an administrative/criminal complaint against respondents Directors Racquel D.G. Buensalida (Chief of Staff, Office of the CSC Chairman) and Lydia A. Castillo (CSC-RO IV) before the Office of the Ombudsman, and a separate complaint for disbarment against Director Buensalida.14

On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal investigation of the case on April 30, 2007. On April 25, 2007, he filed in the CA an Urgent Motion for the issuance of TRO and preliminary injunction.15 Since he failed to attend the pre-hearing conference scheduled on April 30, 2007, the CSC reset the same to May 17, 2007 with warning that the failure of petitioner and/or his counsel to appear in the said pre-hearing conference shall entitle the prosecution to proceed with the formal investigation ex-parte.16 Petitioner moved to defer or to reset the pre-hearing conference, claiming that the investigation proceedings should be held in abeyance pending the resolution of his petition by the CA. The CSC denied his request and again scheduled the pre-hearing conference on May 18, 2007 with similar warning on the consequences of petitioner and/or his counsel’s non-appearance.17 This prompted petitioner to file another motion in the CA, to cite the respondents, including the hearing officer, in indirect contempt.18

On June 12, 2007, the CSC issued Resolution No. 07113419 denying petitioner’s motion to set aside the denial of his motion to defer the proceedings and to inhibit the designated hearing officer, Atty. Bernard G. Jimenez. The hearing officer was directed to proceed with the investigation proper with dispatch.

In view of the absence of petitioner and his counsel, and upon the motion of the prosecution, petitioner was deemed to have waived his right to the formal investigation which then proceeded ex parte.

On July 24, 2007, the CSC issued Resolution No. 071420,20 the dispositive part of which reads:

WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A. Pollo, a.k.a. Ricky A. Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of Republic Act 6713. He is meted the penalty of DISMISSAL FROM THE SERVICE with all its accessory penalties, namely, disqualification to hold public office, forfeiture of retirement benefits, cancellation of civil service eligibilities and bar from taking future civil service examinations.21

On the paramount issue of the legality of the search conducted on petitioner’s computer, the CSC noted the dearth of jurisprudence relevant to the factual milieu of this case where the government as employer invades the private files of an employee stored in the computer assigned to him for his official use, in the course of initial investigation of possible misconduct committed by said employee and without the latter’s consent or participation. The CSC thus turned to relevant rulings of the United States Supreme Court, and cited the leading case of O’Connor v. Ortega22 as authority for the view that government agencies, in their capacity as employers, rather than law enforcers, could validly conduct search and seizure in the governmental workplace without meeting the "probable cause" or warrant requirement for search and seizure. Another ruling cited by the CSC is the more recent case of United States v. Mark L. Simons23 which declared that the federal agency’s computer use policy foreclosed any inference of reasonable expectation of privacy on the part of its employees. Though the Court therein recognized that such policy did not, at the same time, erode the respondent’s legitimate expectation of privacy in the office in which the computer was installed, still, the warrantless search of the employee’s office was upheld as valid because a government employer is entitled to conduct a warrantless search pursuant to an investigation of work-related misconduct provided the search is reasonable in its inception and scope.

With the foregoing American jurisprudence as benchmark, the CSC held that petitioner has no reasonable expectation of privacy with regard to the computer he was using in the regional office in view of the CSC computer use policy which unequivocally declared that a CSC employee cannot assert any privacy right to a computer assigned to him. Even assuming that there was no such administrative policy, the CSC was of the view that the search of petitioner’s computer successfully passed the test of reasonableness for warrantless searches in the workplace as enunciated in the aforecited authorities. The CSC stressed that it pursued the search in its capacity as government employer and that it was undertaken in connection with an investigation involving work-related misconduct, which exempts it from the warrant requirement under the Constitution. With the matter of admissibility of the evidence having been resolved, the CSC then ruled that the totality of evidence adequately supports the charges of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service and violation of R.A. No. 6713 against the petitioner. These grave infractions justified petitioner’s dismissal from the service with all its accessory penalties.

In his Memorandum24 filed in the CA, petitioner moved to incorporate the above resolution dismissing him from the service in his main petition, in lieu of the filing of an appeal via a Rule 43 petition. In a subsequent motion, he likewise prayed for the inclusion of Resolution No. 07180025 which denied his motion for reconsideration.

By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after finding no grave abuse of discretion committed by respondents CSC officials. The CA held that: (1) petitioner was not charged on the basis of the anonymous letter but from the initiative of the CSC after a fact-finding investigation was conducted and the results thereof yielded a prima facie case against him; (2) it could not be said that in ordering the back-up of files in petitioner’s computer and later confiscating the same, Chairperson David had encroached on the authority of a judge in view of the CSC computer policy declaring the computers as government property and that employee-users thereof have no reasonable expectation of privacy in anything they create, store, send, or receive on the computer system; and (3) there is nothing contemptuous in CSC’s act of proceeding with the formal investigation as there was no restraining order or injunction issued by the CA.

His motion for reconsideration having been denied by the CA, petitioner brought this appeal arguing that –

THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED SERIOUS IRREGULARITY AND BLATANT ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT ANONYMOUS COMPLAINT IS ACTIONABLE UNDER E.O. 292 WHEN IN TRUTH AND IN FACT THE CONTRARY IS EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8 OF CSC RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO THE ORIGINAL RULES PER CSC RESOLUTION NO. 94-0521;

THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT PETITIONER CANNOT INVOKE HIS RIGHT TO PRIVACY, TO UNREASONABLE SEARCH AND SEIZURE, AGAINST SELF-INCRIMINATION, BY VIRTUE OF OFFICE MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL MEMORANDUM SIGNED SOLELY AND EXCLUSIVELY BY RESPONDENT DAVID AND NOT BY THE COLLEGIAL COMMISSION CONSIDERING THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL RIGHTS CANNOT BE COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED TO PROCEDURAL AND ROUTINARY INSTRUCTION;

III

THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND THE TAKING OF DOCUMENTS IN THE EVENING THEREOF FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OF DISCRETION LIMITING THE DEFINITION [OF] GRAVE ABUSE OF DISCRETION TO ONE INVOLVING AND TAINTED WITH PERSONAL HOSTILITY. IT LIKEWISE ERRED IN HOLDING THAT DATA STORED IN THE GOVERNMENT COMPUTERS ARE GOVERNMENT PROPERTIES INCLUDING THE PERSONAL FILES WHEN THE CONTRARY IS PROVIDED UNDER SECTION 14 OF OM. 10 s. 2002. AND GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT DAVID BY VIRTUE OF O.M. 10 DID NOT ENCROACH ON THE DUTIES AND FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE III, SECTION 2 OF THE 1987 PHILIPPINE CONSTITUTION;

THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW ARGUMENTS, ADDITIONAL EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS FAILURE TO EVALUATE AND TAKE ACTION ON THE 2 MOTIONS TO ADMIT AND INCORPORATE CSC RESOLUTION NOS. 07-1420 DATED JULY 24, 2007 AND CSC RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID NOT RULE LIKEWISE ON THE FOUR URGENT MOTION TO RESOLVE ANCILLARY PRAYER FOR TRO.26

Squarely raised by the petitioner is the legality of the search conducted on his office computer and the copying of his personal files without his knowledge and consent, alleged as a transgression on his constitutional right to privacy.

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against unreasonable search and seizure under Section 2, Article III of the 1987 Constitution,27 which 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.

The constitutional guarantee is not a prohibition of all searches and seizures but only of "unreasonable" searches and seizures.28 But to fully understand this concept and application for the purpose of resolving the issue at hand, it is essential that we examine the doctrine in the light of pronouncements in another jurisdiction. As the Court declared in People v. Marti29 :

Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in the 1935 Charter which, worded as follows:

"The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined 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." (Sec. 1[3], Article III) was in turn derived almost verbatim from the Fourth Amendment to the United States Constitution. As such, the Court may turn to the pronouncements of the United States Federal Supreme Court and State Appellate Courts which are considered doctrinal in this jurisdiction.30

In the 1967 case of Katz v. United States,31 the US Supreme Court held that the act of FBI agents in electronically recording a conversation made by petitioner in an enclosed public telephone booth violated his right to privacy and constituted a "search and seizure". Because the petitioner had a reasonable expectation of privacy in using the enclosed booth to make a personal telephone call, the protection of the Fourth Amendment extends to such area. In the concurring opinion of Mr. Justice Harlan, it was further noted that the existence of privacy right under prior decisions involved a two-fold requirement: first, that a person has exhibited an actual (subjective) expectation of privacy; and second, that the expectation be one that society is prepared to recognize as reasonable (objective).32

In Mancusi v. DeForte33 which addressed the reasonable expectations of private employees in the workplace, the US Supreme Court held that a union employee had Fourth Amendment rights with regard to an office at union headquarters that he shared with other union officials, even as the latter or their guests could enter the office. The Court thus "recognized that employees may have a reasonable expectation of privacy against intrusions by police."

That the Fourth Amendment equally applies to a government workplace was addressed in the 1987 case of O’Connor v. Ortega34 where a physician, Dr. Magno Ortega, who was employed by a state hospital, claimed a violation of his Fourth Amendment rights when hospital officials investigating charges of mismanagement of the psychiatric residency program, sexual harassment of female hospital employees and other irregularities involving his private patients under the state medical aid program, searched his office and seized personal items from his desk and filing cabinets. In that case, the Court categorically declared that "[i]ndividuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer."35 A plurality of four Justices concurred that the correct analysis has two steps: first, because "some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable", a court must consider "[t]he operational realities of the workplace" in order to determine whether an employee’s Fourth Amendment rights are implicated; and next, where an employee has a legitimate privacy expectation, an employer’s intrusion on that expectation "for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances."36

On the matter of government employees’ reasonable expectations of privacy in their workplace, O’Connor teaches: x x x Public employees’ expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation. x x x The employee’s expectation of privacy must be assessed in the context of the employment relation. An office is seldom a private enclave free from entry by supervisors, other employees, and business and personal invitees. Instead, in many cases offices are continually entered by fellow employees and other visitors during the workday for conferences, consultations, and other work-related visits. Simply put, it is the nature of government offices that others – such as fellow employees, supervisors, consensual visitors, and the general public – may have frequent access to an individual’s office. We agree with JUSTICE SCALIA that "[c]onstitutional protection against unreasonable searches by the government does not disappear merely because the government has the right to make reasonable intrusions in its capacity as employer," x x x but some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable. x x x Given the great variety of work environments in the public sector, the question of whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.37 (Citations omitted; emphasis supplied.)

On the basis of the established rule in previous cases, the US Supreme Court declared that Dr. Ortega’s Fourth Amendment rights are implicated only if the conduct of the hospital officials infringed "an expectation of privacy that society is prepared to consider as reasonable." Given the undisputed evidence that respondent Dr. Ortega did not share his desk or file cabinets with any other employees, kept personal correspondence and other private items in his own office while those work-related files (on physicians in residency training) were stored outside his office, and there being no evidence that the hospital had established any reasonable regulation or policy discouraging employees from storing personal papers and effects in their desks or file cabinets (although the absence of such a policy does not create any expectation of privacy where it would not otherwise exist), the Court concluded that Dr. Ortega has a reasonable expectation of privacy at least in his desk and file cabinets.38

Proceeding to the next inquiry as to whether the search conducted by hospital officials was reasonable, the O’Connor plurality decision discussed the following principles: Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the Court of Appeals simply concluded without discussion that the "search… was not a reasonable search under the fourth amendment." x x x "[t]o hold that the Fourth Amendment applies to searches conducted by [public employers] is only to begin the inquiry into the standards governing such searches…[W]hat is reasonable depends on the context within which a search takes place. x x x Thus, we must determine the appropriate standard of reasonableness applicable to the search. A determination of the standard of reasonableness applicable to a particular class of searches requires "balanc[ing] the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." x x x In the case of searches conducted by a public employer, we must balance the invasion of the employees’ legitimate expectations of privacy against the government’s need for supervision, control, and the efficient operation of the workplace. x x x x

In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an employee’s office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such cases upon supervisors, who would otherwise have no reason to be familiar with such procedures, is simply unreasonable. In contrast to other circumstances in which we have required warrants, supervisors in offices such as at the Hospital are hardly in the business of investigating the violation of criminal laws. Rather, work-related searches are merely incident to the primary business of the agency. Under these circumstances, the imposition of a warrant requirement would conflict with the "common-sense realization that government offices could not function if every employment decision became a constitutional matter." x x x x x x x

The governmental interest justifying work-related intrusions by public employers is the efficient and proper operation of the workplace. Government agencies provide myriad services to the public, and the work of these agencies would suffer if employers were required to have probable cause before they entered an employee’s desk for the purpose of finding a file or piece of office correspondence. Indeed, it is difficult to give the concept of probable cause, rooted as it is in the criminal investigatory context, much meaning when the purpose of a search is to retrieve a file for work-related reasons. Similarly, the concept of probable cause has little meaning for a routine inventory conducted by public employers for the purpose of securing state property. x x x To ensure the efficient and proper operation of the agency, therefore, public employers must be given wide latitude to enter employee offices for work-related, noninvestigatory reasons. We come to a similar conclusion for searches conducted pursuant to an investigation of work-related employee misconduct. Even when employers conduct an investigation, they have an interest substantially different from "the normal need for law enforcement." x x x Public employers have an interest in ensuring that their agencies operate in an effective and efficient manner, and the work of these agencies inevitably suffers from the inefficiency, incompetence, mismanagement, or other work-related misfeasance of its employees. Indeed, in many cases, public employees are entrusted with tremendous responsibility, and the consequences of their misconduct or incompetence to both the agency and the public interest can be severe. In contrast to law enforcement officials, therefore, public employers are not enforcers of the criminal law; instead, public employers have a direct and overriding interest in ensuring that the work of the agency is conducted in a proper and efficient manner. In our view, therefore, a probable cause requirement for searches of the type at issue here would impose intolerable burdens on public employers. The delay in correcting the employee misconduct caused by the need for probable cause rather than reasonable suspicion will be translated into tangible and often irreparable damage to the agency’s work, and ultimately to the public interest. x x x x x x x

In sum, we conclude that the "special needs, beyond the normal need for law enforcement make the…probable-cause requirement impracticable," x x x for legitimate, work-related noninvestigatory intrusions as well as investigations of work-related misconduct. A standard of reasonableness will neither unduly burden the efforts of government employers to ensure the efficient and proper operation of the workplace, nor authorize arbitrary intrusions upon the privacy of public employees. We hold, therefore, that public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct,should be judged by the standard of reasonableness under all the circumstances. Under this reasonableness standard, both the inception and the scope of the intrusion must be reasonable:

"Determining the reasonableness of any search involves a twofold inquiry: first, one must consider ‘whether the…action was justified at its inception,’ x x x ; second, one must determine whether the search as actually conducted ‘was reasonably related in scope to the circumstances which justified the interference in the first place,’" x x x

Ordinarily, a search of an employee’s office by a supervisor will be "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work- related misconduct, or that the search is necessary for a noninvestigatory work-related purposesuch as to retrieve a needed file. x x x The search will be permissible in its scope when "the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of …the nature of the [misconduct]." x x x39 (Citations omitted; emphasis supplied.)

Since the District Court granted summary judgment without a hearing on the factual dispute as to the character of the search and neither was there any finding made as to the scope of the search that was undertaken, the case was remanded to said court for the determination of the justification for the search and seizure, and evaluation of the reasonableness of both the inception of the search and its scope.

In O’Connor the Court recognized that "special needs" authorize warrantless searches involving public employees for work-related reasons. The Court thus laid down a balancing test under which government interests are weighed against the employee’s reasonable expectation of privacy. This reasonableness test implicates neither probable cause nor the warrant requirement, which are related to law enforcement.40

O’Connor was applied in subsequent cases raising issues on employees’ privacy rights in the workplace. One of these cases involved a government employer’s search of an office computer, United States v. Mark L. Simons41where the defendant Simons, an employee of a division of the Central Intelligence Agency (CIA), was convicted of receiving and possessing materials containing child pornography. Simons was provided with an office which he did not share with anyone, and a computer with Internet access. The agency had instituted a policy on computer use stating that employees were to use the Internet for official government business only and that accessing unlawful material was specifically prohibited. The policy also stated that users shall understand that the agency will periodically audit, inspect, and/or monitor the user’s Internet access as deemed appropriate. CIA agents instructed its contractor for the management of the agency’s computer network, upon initial discovery of prohibited internet activity originating from Simons’ computer, to conduct a remote monitoring and examination of Simons’ computer. After confirming that Simons had indeed downloaded pictures that were pornographic in nature, all the files on the hard drive of Simon’s computer were copied from a remote work station. Days later, the contractor’s representative finally entered Simon’s office, removed the original hard drive on Simon’s computer, replaced it with a copy, and gave the original to the agency security officer. Thereafter, the agency secured warrants and searched Simons’ office in the evening when Simons was not around. The search team copied the contents of Simons’ computer; computer diskettes found in Simons’ desk drawer; computer files stored on the zip drive or on zip drive diskettes; videotapes; and various documents, including personal correspondence. At his trial, Simons moved to suppress these evidence, arguing that the searches of his office and computer violated his Fourth Amendment rights. After a hearing, the district court denied the motion and Simons was found guilty as charged.

Simons appealed his convictions. The US Supreme Court ruled that the searches of Simons’ computer and office did not violate his Fourth Amendment rights and the first search warrant was valid. It held that the search remains valid under the O’Connor exception to the warrant requirement because evidence of the crime was discovered in the course of an otherwise proper administrative inspection. Simons’ violation of the agency’s Internet policy happened also to be a violation of criminal law; this does not mean that said employer lost the capacity and interests of an employer. The warrantless entry into Simons’ office was reasonable under the Fourth Amendment standard announced in O’Connor because at the inception of the search, the employer had "reasonable grounds for suspecting" that the hard drive would yield evidence of misconduct, as the employer was already aware that Simons had misused his Internet access to download over a thousand pornographic images. The retrieval of the hard drive was reasonably related to the objective of the search, and the search was not excessively intrusive. Thus, while Simons had a reasonable expectation of privacy in his office, he did not have such legitimate expectation of privacy with regard to the files in his computer. x x x To establish a violation of his rights under the Fourth Amendment, Simons must first prove that he had a legitimate expectation of privacy in the place searched or the item seized. x x x And, in order to prove a legitimate expectation of privacy, Simons must show that his subjective expectation of privacy is one that society is prepared to accept as objectively reasonable. x x x x x x x x x x We conclude that the remote searches of Simons’ computer did not violate his Fourth Amendment rights because, in light of the Internet policy, Simons lacked a legitimate expectation of privacy in the files downloaded from the Internet. Additionally, we conclude that Simons’ Fourth Amendment rights were not violated by FBIS’ retrieval of Simons’ hard drive from his office.

Simons did not have a legitimate expectation of privacy with regard to the record or fruits of his Internet use in light of the FBIS Internet policy. The policy clearly stated that FBIS would "audit, inspect, and/or monitor" employees’ use of the Internet, including all file transfers, all websites visited, and all e-mail messages, "as deemed appropriate." x x x This policy placed employees on notice that they could not reasonably expect that their Internet activity would be private. Therefore, regardless of whether Simons subjectively believed that the files he transferred from the Internet were private, such a belief was not objectively reasonable after FBIS notified him that it would be overseeing his Internet use. x x x Accordingly, FBIS’ actions in remotely searching and seizing the computer files Simons downloaded from the Internet did not violate the Fourth Amendment. x x x x

The burden is on Simons to prove that he had a legitimate expectation of privacy in his office. x x x Here, Simons has shown that he had an office that he did not share. As noted above, the operational realities of Simons’ workplace may have diminished his legitimate privacy expectations. However, there is no evidence in the record of any workplace practices, procedures, or regulations that had such an effect. We therefore conclude that, on this record, Simons possessed a legitimate expectation of privacy in his office. x x x x

In the final analysis, this case involves an employee’s supervisor entering the employee’s government office and retrieving a piece of government equipment in which the employee had absolutely no expectation of privacy – equipment that the employer knew contained evidence of crimes committed by the employee in the employee’s office. This situation may be contrasted with one in which the criminal acts of a government employee were unrelated to his employment. Here, there was a conjunction of the conduct that violated the employer’s policy and the conduct that violated the criminal law. We consider that FBIS’ intrusion into Simons’ office to retrieve the hard drive is one in which a reasonable employer might engage. x x x42 (Citations omitted; emphasis supplied.)

This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board43 which involved the constitutionality of a provision in R.A. No. 9165 requiring mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor’s office with certain offenses, have also recognized the fact that there may be such legitimate intrusion of privacy in the workplace.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees’ privacy interest in an office is to a large extent circumscribed by the company’s work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld. (Emphasis supplied.) Applying the analysis and principles announced in O’Connor and Simons to the case at bar, we now address the following questions: (1) Did petitioner have a reasonable expectation of privacy in his office and computer files?; and (2) Was the search authorized by the CSC Chair, the copying of the contents of the hard drive on petitioner’s computer reasonable in its inception and scope?

In this inquiry, the relevant surrounding circumstances to consider include "(1) the employee’s relationship to the item seized; (2) whether the item was in the immediate control of the employee when it was seized; and (3) whether the employee took actions to maintain his privacy in the item." These factors are relevant to both the subjective and objective prongs of the reasonableness inquiry, and we consider the two questions together.44Thus, where the employee used a password on his computer, did not share his office with co-workers and kept the same locked, he had a legitimate expectation of privacy and any search of that space and items located therein must comply with the Fourth Amendment.45

We answer the first in the negative. Petitioner failed to prove that he had an actual (subjective) expectation of privacy either in his office or government-issued computer which contained his personal files. Petitioner did not allege that he had a separate enclosed office which he did not share with anyone, or that his office was always locked and not open to other employees or visitors. Neither did he allege that he used passwords or adopted any means to prevent other employees from accessing his computer files. On the contrary, he submits that being in the public assistance office of the CSC-ROIV, he normally would have visitors in his office like friends, associates and even unknown people, whom he even allowed to use his computer which to him seemed a trivial request. He described his office as "full of people, his friends, unknown people" and that in the past 22 years he had been discharging his functions at the PALD, he is "personally assisting incoming clients, receiving documents, drafting cases on appeals, in charge of accomplishment report, Mamamayan Muna Program, Public Sector Unionism, Correction of name, accreditation of service, and hardly had anytime for himself alone, that in fact he stays in the office as a paying customer."46 Under this scenario, it can hardly be deduced that petitioner had such expectation of privacy that society would recognize as reasonable.

Moreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned factual circumstances, that petitioner had at least a subjective expectation of privacy in his computer as he claims, such is negated by the presence of policy regulating the use of office computers, as in Simons.

Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly provides:

POLICY 1. The Computer Resources are the property of the Civil Service Commission and may be used only for legitimate business purposes.

2. Users shall be permitted access to Computer Resources to assist them in the performance of their respective jobs.

3. Use of the Computer Resources is a privilege that may be revoked at any given time. x x x x

No Expectation of Privacy

4. No expectation of privacy. Users except the Members of the Commission shall not have an expectation of privacy in anything they create, store, send, or receive on the computer system.

The Head of the Office for Recruitment, Examination and Placement shall select and assign Users to handle the confidential examination data and processes.

5. Waiver of privacy rights. Users expressly waive any right to privacy in anything they create, store, send, or receive on the computer through the Internet or any other computer network. Users understand that theCSC may use human or automated means to monitor the use of its Computer Resources.

6. Non-exclusivity of Computer Resources. A computer resource is not a personal property or for the exclusive use of a User to whom a memorandum of receipt (MR) has been issued. It can be shared or operated by other users. However, he is accountable therefor and must insure its care and maintenance. x x x x

Passwords

12. Responsibility for passwords. Users shall be responsible for safeguarding their passwords for access to the computer system. Individual passwords shall not be printed, stored online, or given to others. Users shall be responsible for all transactions made using their passwords. No User may access the computer system with another User’s password or account.

13. Passwords do not imply privacy. Use of passwords to gain access to the computer system or to encode particular files or messages does not imply that Users have an expectation of privacy in the material they create or receive on the computer system. The Civil Service Commission has global passwords that permit access to all materials stored on its networked computer system regardless of whether those materials have been encoded with a particular User’s password. Only members of the Commission shall authorize the application of the said global passwords. x x x x47 (Emphasis supplied.)

The CSC in this case had implemented a policy that put its employees on notice that they have no expectation of privacy in anything they create, store, send or receive on the office computers, and that the CSC may monitor the use of the computer resources using both automated or human means. This implies that on-the-spot inspections may be done to ensure that the computer resources were used only for such legitimate business purposes.

One of the factors stated in O’Connor which are relevant in determining whether an employee’s expectation of privacy in the workplace is reasonable is the existence of a workplace privacy policy.48 In one case, the US Court of Appeals Eighth Circuit held that a state university employee has not shown that he had a reasonable expectation of privacy in his computer files where the university’s computer policy, the computer user is informed not to expect privacy if the university has a legitimate reason to conduct a search. The user is specifically told that computer files, including e-mail, can be searched when the university is responding to a discovery request in the course of litigation. Petitioner employee thus cannot claim a violation of Fourth Amendment rights when university officials conducted a warrantless search of his computer for work-related materials.49

As to the second point of inquiry on the reasonableness of the search conducted on petitioner’s computer, we answer in the affirmative.

The search of petitioner’s computer files was conducted in connection with investigation of work-related misconduct prompted by an anonymous letter- complaint addressed to Chairperson David regarding anomalies in the CSC-ROIV where the head of the Mamamayan Muna Hindi Mamaya Na division is supposedly "lawyering" for individuals with pending cases in the CSC. Chairperson David stated in her sworn affidavit:

8. That prior to this, as early as 2006, the undersigned has received several text messages from unknown sources adverting to certain anomalies in Civil Service Commission Regional Office IV (CSCRO IV) such as, staff working in another government agency, "selling" cases and aiding parties with pending cases, all done during office hours and involved the use of government properties;

9. That said text messages were not investigated for lack of any verifiable leads and details sufficient to warrant an investigation;

10. That the anonymous letter provided the lead and details as it pinpointed the persons and divisions involved in the alleged irregularities happening in CSCRO IV;

11. That in view of the seriousness of the allegations of irregularities happening in CSCRO IV and its effect on the integrity of the Commission, I decided to form a team of Central Office staff to back up the files in the computers of the Public Assistance and Liaison Division (PALD) and Legal Division; x x x x50

A search by a government employer of an employee’s office is justified at inception when there are reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of work-related misconduct.51 Thus, in the 2004 case decided by the US Court of Appeals Eighth Circuit, it was held that where a government agency’s computer use policy prohibited electronic messages with pornographic content and in addition expressly provided that employees do not have any personal privacy rights regarding their use of the agency information systems and technology, the government employee had no legitimate expectation of privacy as to the use and contents of his office computer, and therefore evidence found during warrantless search of the computer was admissible in prosecution for child pornography. In that case, the defendant employee’s computer hard drive was first remotely examined by a computer information technician after his supervisor received complaints that he was inaccessible and had copied and distributed non- work-related e-mail messages throughout the office. When the supervisor confirmed that defendant had used his computer to access the prohibited websites, in contravention of the express policy of the agency, his computer tower and floppy disks were taken and examined. A formal administrative investigation ensued and later search warrants were secured by the police department. The initial remote search of the hard drive of petitioner’s computer, as well as the subsequent warrantless searches was held as valid under the O’Connor ruling that a public employer can investigate work-related misconduct so long as any search is justified at inception and is reasonably related in scope to the circumstances that justified it in the first place.52

Under the facts obtaining, the search conducted on petitioner’s computer was justified at its inception and scope. We quote with approval the CSC’s discussion on the reasonableness of its actions, consistent as it were with the guidelines established by O’Connor:

Even conceding for a moment that there is no such administrative policy, there is no doubt in the mind of the Commission that the search of Pollo’s computer has successfully passed the test of reasonableness for warrantless searches in the workplace as enunciated in the above-discussed American authorities. It bears emphasis that the Commission pursued the search in its capacity as a government employer and that it was undertaken in connection with an investigation involving a work-related misconduct, one of the circumstances exempted from the warrant requirement. At the inception of the search, a complaint was received recounting that a certain division chief in the CSCRO No. IV was "lawyering" for parties having pending cases with the said regional office or in the Commission. The nature of the imputation was serious, as it was grievously disturbing. If, indeed, a CSC employee was found to be furtively engaged in the practice of "lawyering" for parties with pending cases before the Commission would be a highly repugnant scenario, then such a case would have shattering repercussions. It would undeniably cast clouds of doubt upon the institutional integrity of the Commission as a quasi-judicial agency, and in the process, render it less effective in fulfilling its mandate as an impartial and objective dispenser of administrative justice. It is settled that a court or an administrative tribunal must not only be actually impartial but must be seen to be so, otherwise the general public would not have any trust and confidence in it.

Considering the damaging nature of the accusation, the Commission had to act fast, if only to arrest or limit any possible adverse consequence or fall-out. Thus, on the same date that the complaint was received, a search was forthwith conducted involving the computer resources in the concerned regional office. That it was the computers that were subjected to the search was justified since these furnished the easiest means for an employee to encode and store documents. Indeed, the computers would be a likely starting point in ferreting out incriminating evidence. Concomitantly, the ephemeral nature of computer files, that is, they could easily be destroyed at a click of a button, necessitated drastic and immediate action.Pointedly, to impose the need to comply with the probable cause requirement would invariably defeat the purpose of the wok-related investigation.

Worthy to mention, too, is the fact that the Commission effected the warrantless search in an open and transparent manner. Officials and some employees of the regional office, who happened to be in the vicinity, were on hand to observe the process until its completion. In addition, the respondent himself was duly notified, through text messaging, of the search and the concomitant retrieval of files from his computer.

All in all, the Commission is convinced that the warrantless search done on computer assigned to Pollo was not, in any way, vitiated with unconstitutionality. It was a reasonable exercise of the managerial prerogative of the Commission as an employer aimed at ensuring its operational effectiveness and efficiency by going after the work-related misfeasance of its employees. Consequently, the evidence derived from the questioned search are deemed admissible.53

Petitioner’s claim of violation of his constitutional right to privacy must necessarily fail. His other argument invoking the privacy of communication and correspondence under Section 3(1), Article III of the 1987 Constitution is also untenable considering the recognition accorded to certain legitimate intrusions into the privacy of employees in the government workplace under the aforecited authorities. We likewise find no merit in his contention that O’Connor and Simons are not relevant because the present case does not involve a criminal offense like child pornography. As already mentioned, the search of petitioner’s computer was justified there being reasonable ground for suspecting that the files stored therein would yield incriminating evidence relevant to the investigation being conducted by CSC as government employer of such misconduct subject of the anonymous complaint. This situation clearly falls under the exception to the warrantless requirement in administrative searches defined in O’Connor.

The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty. Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila54 involving a branch clerk (Atty. Morales) who was investigated on the basis of an anonymous letter alleging that he was consuming his working hours filing and attending to personal cases, using office supplies, equipment and utilities. The OCA conducted a spot investigation aided by NBI agents. The team was able to access Atty. Morales’ personal computer and print two documents stored in its hard drive, which turned out to be two pleadings, one filed in the CA and another in the RTC of Manila, both in the name of another lawyer. Atty. Morales’ computer was seized and taken in custody of the OCA but was later ordered released on his motion, but with order to the MISO to first retrieve the files stored therein. The OCA disagreed with the report of the Investigating Judge that there was no evidence to support the charge against Atty. Morales as no one from the OCC personnel who were interviewed would give a categorical and positive statement affirming the charges against Atty. Morales, along with other court personnel also charged in the same case. The OCA recommended that Atty. Morales should be found guilty of gross misconduct. The Court En Banc held that while Atty. Morales may have fallen short of the exacting standards required of every court employee, the Court cannot use the evidence obtained from his personal computer against him for it violated his constitutional right against unreasonable searches and seizures. The Court found no evidence to support the claim of OCA that they were able to obtain the subject pleadings with the consent of Atty. Morales, as in fact the latter immediately filed an administrative case against the persons who conducted the spot investigation, questioning the validity of the investigation and specifically invoking his constitutional right against unreasonable search and seizure. And as there is no other evidence, apart from the pleadings, retrieved from the unduly confiscated personal computer of Atty. Morales, to hold him administratively liable, the Court had no choice but to dismiss the charges against him for insufficiency of evidence.

The above case is to be distinguished from the case at bar because, unlike the former which involved a personal computer of a court employee, the computer from which the personal files of herein petitioner were retrieved is a government-issued computer, hence government property the use of which the CSC has absolute right to regulate and monitor. Such relationship of the petitioner with the item seized (office computer) and other relevant factors and circumstances under American Fourth Amendment jurisprudence, notably the existence of CSC MO 10, S. 2007 on Computer Use Policy, failed to establish that petitioner had a reasonable expectation of privacy in the office computer assigned to him. Having determined that the personal files copied from the office computer of petitioner are admissible in the administrative case against him, we now proceed to the issue of whether the CSC was correct in finding the petitioner guilty of the charges and dismissing him from the service.

Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC, are accorded not only respect but even finality if such findings are supported by substantial evidence. Substantial evidence is such amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion, even if other equally reasonable minds might conceivably opine otherwise.55

The CSC based its findings on evidence consisting of a substantial number of drafts of legal pleadings and documents stored in his office computer, as well as the sworn affidavits and testimonies of the witnesses it presented during the formal investigation. According to the CSC, these documents were confirmed to be similar or exactly the same content-wise with those on the case records of some cases pending either with CSCRO No. IV, CSC-NCR or the Commission Proper. There were also substantially similar copies of those pleadings filed with the CA and duly furnished the Commission. Further, the CSC found the explanation given by petitioner, to the effect that those files retrieved from his computer hard drive actually belonged to his lawyer friends Estrellado and Solosa whom he allowed the use of his computer for drafting their pleadings in the cases they handle, as implausible and doubtful under the circumstances. We hold that the CSC’s factual finding regarding the authorship of the subject pleadings and misuse of the office computer is well-supported by the evidence on record, thus:

It is also striking to note that some of these documents were in the nature of pleadings responding to the orders, decisions or resolutions of these offices or directly in opposition to them such as a petition for certiorari or a motion for reconsideration of CSC Resolution. This indicates that the author thereof knowingly and willingly participated in the promotion or advancement of the interests of parties contrary or antagonistic to the Commission. Worse, the appearance in one of the retrieved documents the phrase, "Eric N. Estr[e]llado, Epal kulang ang bayad mo," lends plausibility to an inference that the preparation or drafting of the legal pleadings was pursued with less than a laudable motivation. Whoever was responsible for these documents was simply doing the same for the money – a "legal mercenary" selling or purveying his expertise to the highest bidder, so to speak.

Inevitably, the fact that these documents were retrieved from the computer of Pollo raises the presumption that he was the author thereof. This is because he had a control of the said computer. More significantly, one of the witnesses, Margarita Reyes, categorically testified seeing a written copy of one of the pleadings found in the case records lying on the table of the respondent. This was the Petition for Review in the case of Estrellado addressed to the Court of Appeals. The said circumstances indubitably demonstrate that Pollo was secretly undermining the interest of the Commission, his very own employer.

To deflect any culpability, Pollo would, however, want the Commission to believe that the documents were the personal files of some of his friends, including one Attorney Ponciano Solosa, who incidentally served as his counsel of record during the formal investigation of this case. In fact, Atty. Solosa himself executed a sworn affidavit to this effect. Unfortunately, this contention of the respondent was directly rebutted by the prosecution witness, Reyes, who testified that during her entire stay in the PALD, she never saw Atty. Solosa using the computer assigned to the respondent. Reyes more particularly stated that she worked in close proximity with Pollo and would have known if Atty. Solosa, whom she personally knows, was using the computer in question. Further, Atty. Solosa himself was never presented during the formal investigation to confirm his sworn statement such that the same constitutes self-serving evidence unworthy of weight and credence. The same is true with the other supporting affidavits, which Pollo submitted.

At any rate, even admitting for a moment the said contention of the respondent, it evinces the fact that he was unlawfully authorizing private persons to use the computer assigned to him for official purpose, not only once but several times gauging by the number of pleadings, for ends not in conformity with the interests of the Commission. He was, in effect, acting as a principal by indispensable cooperation…Or at the very least, he should be responsible for serious misconduct for repeatedly allowing CSC resources, that is, the computer and the electricity, to be utilized for purposes other than what they were officially intended.

Further, the Commission cannot lend credence to the posturing of the appellant that the line appearing in one of the documents, "Eric N. Estrellado, Epal kulang ang bayad mo," was a private joke between the person alluded to therein, Eric N. Estrellado, and his counsel, Atty. Solosa, and not indicative of anything more sinister. The same is too preposterous to be believed. Why would such a statement appear in a legal pleading stored in the computer assigned to the respondent, unless he had something to do with it?56

Petitioner assails the CA in not ruling that the CSC should not have entertained an anonymous complaint since Section 8 of CSC Resolution No. 99-1936 (URACC) requires a verified complaint:

Rule II – Disciplinary Cases

SEC. 8. Complaint. - A complaint against a civil service official or employee shall not be given due course unless it is in writing and subscribed and sworn to by the complainant. However, in cases initiated by the proper disciplining authority, the complaint need not be under oath. No anonymous complaint shall be entertained unless there is obvious truth or merit to the allegation thereinor supported by documentary or direct evidence, in which case the person complained of may be required to comment. x x x x

We need not belabor this point raised by petitioner. The administrative complaint is deemed to have been initiated by the CSC itself when Chairperson David, after a spot inspection and search of the files stored in the hard drive of computers in the two divisions adverted to in the anonymous letter -- as part of the disciplining authority’s own fact-finding investigation and information-gathering -- found a prima facie case against the petitioner who was then directed to file his comment. As this Court held in Civil Service Commission v. Court of Appeals57 --

Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section 8, Rule II of Uniform Rules on Administrative Cases in the Civil Service, a complaint may be initiated against a civil service officer or employee by the appropriate disciplining authority, even without being subscribed and sworn to. Considering that the CSC, as the disciplining authority for Dumlao, filed the complaint, jurisdiction over Dumlao was validly acquired. (Emphasis supplied.)

As to petitioner’s challenge on the validity of CSC OM 10, S. 2002 (CUP), the same deserves scant consideration. The alleged infirmity due to the said memorandum order having been issued solely by the CSC Chair and not the Commission as a collegial body, upon which the dissent of Commissioner Buenaflor is partly anchored, was already explained by Chairperson David in her Reply to the Addendum to Commissioner Buenaflor’s previous memo expressing his dissent to the actions and disposition of the Commission in this case. According to Chairperson David, said memorandum order was in fact exhaustively discussed, provision by provision in the January 23, 2002 Commission Meeting, attended by her and former Commissioners Erestain, Jr. and Valmores. Hence, the Commission En Banc at the time saw no need to issue a Resolution for the purpose and further because the CUP being for internal use of the Commission, the practice had been to issue a memorandum order.58 Moreover, being an administrative rule that is merely internal in nature, or which regulates only the personnel of the CSC and not the public, the CUP need not be published prior to its effectivity.59

In fine, no error or grave abuse of discretion was committed by the CA in affirming the CSC’s ruling that petitioner is guilty of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service, and violation of R.A. No. 6713. The gravity of these offenses justified the imposition on petitioner of the ultimate penalty of dismissal with all its accessory penalties, pursuant to existing rules and regulations. WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated October 11, 2007 and Resolution dated February 29, 2008 of the Court of Appeals in CA-G.R. SP No. 98224 are AFFIRMED.

With costs against the petitioner.

SO ORDERED.