SECOND DIVISION

[G.R. No. 144037. September 26, 2003]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NOEL TUDTUD y PAYPA and DINDO BOLONG y NARET, accused-appellants.

D E C I S I O N

Tinga, J.:

. It is desirable that criminals should be detected, and to that end that all available evidence should be used. It also is desirable that the government should not itself foster and pay for other crimes, when they are the means by which the evidence is to be obtained. If it pays its officers for having got evidence by crime, I do not see why it may not as well pay them for getting it in the same way, and I can attach no importance to protestations of disapproval if it knowingly accepts and pays and announces that it will pay for the fruits. We have to choose, and for my part I think it a less evil that some criminals should escape than that the government should play an ignoble part.

So wrote Justice Oliver Wendell Holmes in Olmstead v. U.S.[1] On this occasion, this Court is made to choose between letting suspected criminals escape or letting the government play an ignoble part.

Sometime during the months of July and August 1999, the Toril Police Station, Davao City received a report from a civilian asset named Bobong Solier about a certain Noel Tudtud.[2] Solier related that his neighbors have been complaining about Tudtud, who was allegedly responsible for the proliferation of marijuana in their area.[3]

Reacting to the report, PO1 Ronald Desierto, PO1 Ramil Floreta and their superior, SPO1 Villalonghan,[4] all members of the Intelligence Section of the Toril Police Station, conducted surveillance in Soliers neighborhood in Sapa, Toril, Davao City.[5] For five days, they gathered information and learned that Tudtud was involved in illegal drugs.[6] According to his neighbors, Tudtud was engaged in selling marijuana.[7]

On August 1, 1999, Solier informed the police that Tudtud had headed to Cotabato and would be back later that day with new stocks of marijuana.[8] Solier described Tudtud as big-bodied and short, and usually wore a hat.[9] At around 4:00 in the afternoon that same day, a team composed of PO1 Desierto, PO1 Floreta and SPO1 Villalonghan posted themselves at the corner of Saipon and McArthur Highway to await Tudtuds arrival.[10] All wore civilian clothes.[11]

About 8:00 later that evening, two men disembarked from a bus and helped each other carry a carton[12] marked King Flakes.[13] Standing some five feet away from the men, PO1 Desierto and PO1 Floreta observed that one of the men fit Tudtuds description.[14] The same man also toted a plastic bag.[15]

PO1 Floreta and PO1 Desierto then approached the suspects and identified themselves as police officers.[16] PO1 Desierto informed them that the police had received information that stocks of illegal drugs would be arriving that night.[17] The man who resembled Tudtuds description denied that he was carrying any drugs.[18] PO1 Desierto asked him if he could see the contents of the box.[19] Tudtud obliged, saying, it was alright.[20] Tudtud opened the box himself as his companion looked on.[21]

The box yielded pieces of dried fish, beneath which were two bundles, one wrapped in a striped plastic bag[22] and another in newspapers.[23] PO1 Desierto asked Tudtud to unwrap the packages.[24] They contained what seemed to the police officers as marijuana leaves.[25]

The police thus arrested Tudtud and his companion, informed them of their rights and brought them to the police station.[26] The two did not resist.[27]

The confiscated items were turned over to the Philippine National Police (PNP) Crime Laboratory for examination.[28] Forensic tests conducted by Police Chief Inspector Noemi Austero, forensic chemist of the PNP Crime Laboratory, Region XI, on specimens taken from the confiscated items confirmed the police officers suspicion. The plastic bag contained 3,200 grams of marijuana leaves while the newspapers contained another 890 grams.[29] Police Chief Inspector Austero reduced her findings in her report, Physical Sciences Report No. D-220-99 dated 2 August 1999.[30]

Noel Tudtud and his companion, Dindo Bulong, were subsequently charged[31] before the Regional Trial Court (RTC) of Davao City with illegal possession of prohibited drugs.[32] Upon arraignment, both accused pleaded not guilty.[33] The defense, however, reserved their right to question the validity of their arrest and the seizure of the evidence against them.[34]

Trial ensued thereafter.

The prosecution presented five witnesses, namely, arresting officers PO1 Desierto and PO1 Floreta, their civilian informant Bobong Solier, forensic chemist Police Chief Inspector Noemi Austero, and SPO3 Nicolas Algabre, exhibit custodian of the PNP Crime Laboratory. Said witnesses testified to the foregoing narration of facts.

The accused, denying the charges against them, cried frame-up.

Noel Tudtud recalled that on August 1, 1999 he had gone to Kabacan, North Cotabato to sell pairs of Levis pants, which was his sideline.[35] At about 5:00 in the afternoon, he returned to Davao City by bus.[36] Upon reaching Toril, Tudtud, along with less than ten passengers, got down the bus.[37]

Suddenly, a man who identified himself as a police officer approached him, pointing a .38 caliber revolver.[38] The man told him not to run.[39] Tudtud raised his arms and asked, Sir, what is this about?[40] The man answered that he would like to inspect the plastic bag Tudtud was carrying, and instructed Tudtud to open the bag, which revealed several pairs of Levis pants.[41]

The man then directed Tudtud to open a carton box some two meters away.[42] According to Tudtud, the box was already there when he disembarked the bus.[43] Tudtud told the man the box was not his, but proceeded to open it out of fear after the man again pointed his revolver at him.[44] Tudtud discovered pieces of dried fish, underneath which was something wrapped in cellophane.[45]

What is that? the man asked.[46] Tudtud replied that he did not know.[47] Without even unwrapping the cellophane, the man said it was marijuana and abruptly handcuffed Tudtud.[48]

Simultaneously, another man was pointing a firearm at Dindo Bolong at the other side of the street, some eight meters from Tudtud.[49]

Bolong recounted that he was on his way to a relative in Daliao after attending a cousins wedding in Hagonoy, Davao del Sur when he was accosted.[50] After alighting the bus, Bolong crossed the street.[51] Someone then approached him and pointed a gun at him.[52] The man ordered him not to move and handcuffed him.[53] Bolong asked why he was being arrested but the man just told him to go with them.[54]

The suspects were then taken to the police station where, they would later claim, they met each other for the first time.[55]

Assailing the credibility of informant Bobong Solier, the defense offered the testimonies of Felicia Julaton,[56] Branch 3 Clerk of Court, Claudio Bohevia,[57] Branch 7 Clerk of Court, and Mercedita Abunda,[58] Branch 9 Utility Clerk, all of the Davao City Municipal Trial Circuit Court. They testified and presented court documents showing that one Bobo or Bobong Ramirez was charged in their respective branches with various crimes, specifically, light threats, less serious physical injuries and robbery. The defense asserted that the Bobo or Bobong Ramirez accused in these cases is the same person as the informant Bobong Solier.[59]

Swayed by the prosecutions evidence beyond reasonable doubt, the RTC rendered judgment convicting both accused as charged and sentencing them to suffer the penalty of reclusion perpetua and to pay a fine of P500,000.00.[60]

On appeal, Noel Tudtud and Dindo Bolong assign, among other errors, the admission in evidence of the marijuana leaves, which they claim were seized in violation of their right against unreasonable searches and seizures.

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 secured 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 places to be searched and the persons or things to be seized.

The rule is that a search and seizure must be carried out through or with a judicial warrant; otherwise, such search and seizure becomes unreasonable within the meaning of the above-quoted constitutional provision, and any evidence secured thereby, will be inadmissible in evidence for any purpose in any proceeding.[61] Section 3 (2), Article III of the Constitution explicitly provides:

(2) Any evidence obtained in violation of the preceding section shall be inadmissible for any purpose in any proceeding.

The proscription in Section 2, Article III, however, covers only unreasonable searches and seizures. The following instances are not deemed unreasonable even in the absence of a warrant:

1. Warrantless search incidental to a lawful arrest. (Sec. 12, Rule 126 of the Rules of Court and prevailing jurisprudence);

2. Search 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; (d) plain view justified mere seizure of evidence without further search;

3. Search of a moving vehicle. Highly regulated by the government, the vehicles inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;

4. Consented warrantless search;

5. Customs search;

6. Stop and Frisk; and

7. Exigent and emergency circumstances.[62]

The RTC justified the warrantless search of appellants belongings under the first exception, as a search incident to a lawful arrest. It cited as authorities this Courts rulings in People v. Claudio,[63] People v. Tangliben,[64] People v. Montilla,[65] and People v. Valdez.[66] The Office of the Solicitor General (OSG), in arguing for the affirmance of the appealed decision, invokes the cases of People v. Maspil, Jr.,[67] People v. Malmstedt,[68] and People v. Bagista.[69]

A search incidental to a lawful arrest is sanctioned by the Rules of Court. Prior to its revision in 2000, Section 12,[70] Rule 126 of said Rules read as follows:

SEC. 12. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant.

Section 5 (a), Rule 113 of the Rules, in turn, allows warrantless arrests:

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;

.

It is significant to note that the search in question preceded the arrest. Recent jurisprudence holds that the arrest must precede the search; the process cannot be reversed.[71] Nevertheless, a search substantially contemporaneous with an arrest can precede the arrest if the police have probable cause to make the arrest at the outset of the search.[72] The question, therefore, is whether the police in this case had probable cause to arrest appellants. Probable cause has been defined as:

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 of the peace officers making the arrest.[73]

The long-standing rule in this jurisdiction, applied with a great degree of consistency, is that reliable information alone is not sufficient to justify a warrantless arrest under Section 5 (a), Rule 113. The rule requires, in addition, that the accused perform some overt act that would indicate that he has committed, is actually committing, or is attempting to commit an offense.

In the leading case of People v. Burgos,[74] this Court held that the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personal knowledge of that fact. The offense must also be committed in his presence or within his view.[75] In Burgos, the authorities obtained information that the accused had forcibly recruited one Cesar Masamlok as member of the New Peoples Army, threatening the latter with a firearm. Upon finding the accused, the arresting team searched his house and discovered a gun as well as purportedly subversive documents. This Court, in declaring then Section 6 (a), Rule 113 of the Rules of Court inapplicable, ruled that:

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 appellants wife.

At the time of the appellants arrest, he was not in actual possession of any firearm or subversive document. Neither was he committing 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 to 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 violated and so deserving of full protection.[76]

Consequently, the items seized were held inadmissible, having been obtained in violation of the accuseds constitutional rights against unreasonable searches and seizures.

In People v. Aminnudin,[77] this Court likewise held the warrantless arrest and subsequent search of appellant therein illegal, given the following circumstances:

the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that he called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his arrest. The identification by the informer was the probable cause as determined by the officers (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him.[78]

Thus, notwithstanding tips from confidential informants and regardless of the fact that the search yielded contraband, the mere act of looking from side to side while holding ones abdomen,[79] or of standing on a corner with ones eyes moving very fast, looking at every person who came near,[80] does not justify a warrantless arrest under said Section 5 (a). Neither does putting something in ones pocket,[81] handing over ones baggage,[82] riding a motorcycle,[83] nor does holding a bag on board a trisikad[84]sanction State intrusion. The same rule applies to crossing the street per se.[85]

Personal knowledge was also required in the case of People v. Doria.[86] Recently, in People v. Binad Sy Chua,[87] this Court declared invalid the arrest of the accused, who was walking towards a hotel clutching a sealed Zest-O juice box. For the exception in Section 5 (a), Rule 113 to apply, this Court ruled, two elements must concur: (1) the person to be arrested must execute an overt act indicating he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer. Reliable information alone is insufficient.

In the following cases, the search was held to be incidental to a lawful arrest because of suspicious circumstances: People v. Tangliben[88] (accused was acting suspiciously), People v. Malmstedt[89] (a bulge on the accuseds waist), and People v. de Guzman[90] (likewise a bulge on the waist of the accused, who was wearing tight-fitting clothes).

There is, however, another set of jurisprudence that deems reliable information sufficient to justify a search incident to a warrantless arrest under Section 5 (a), Rule 113, thus deviating from Burgos. To this class of cases belong People v. Maspil, Jr.,[91] People v. Bagista,[92] People v. Balingan,[93] People v. Lising,[94] People v. Montilla,[95] People v. Valdez,[96] and People v. Gonzales.[97] In these cases, the arresting authorities were acting on information regarding an offense but there were no overt acts or suspicious circumstances that would indicate that the accused has committed, is actually committing, or is attempting to commit the same. Significantly, these cases, except the last two, come under some other exception to the rule against warrantless searches. Thus, Maspil, Jr. involved a checkpoint search, Balingan was a search of a moving vehicle, Bagista was both, and Lising and Montilla were consented searches.

Nevertheless, the great majority of cases conforms to the rule in Burgos, which, in turn, more faithfully adheres to the letter of Section 5(a), Rule 113. Note the phrase in his presence therein, connoting personal knowledge on the part of the arresting officer. The right of the accused to be secure against any unreasonable searches on and seizure of his own body and any deprivation of his liberty being a most basic and fundamental one, the statute or rule that allows exception to the requirement of a warrant of arrest is strictly construed. Its application cannot be extended beyond the cases specifically provided by law.[98]

The cases invoked by the RTC and the OSG are, therefore, gravely misplaced. In Claudio,[99] the accused, who was seated aboard a bus in front of the arresting officer, put her bag behind the latter, thus arousing the latters suspicion. In Tangliben and Malmstedt, the accused had also acted suspiciously.

As noted earlier, Maspil, Jr., Bagista and Montilla were justified by other exceptions to the rule against warrantless searches. Montilla, moreover, was not without its critics. There, majority of the Court held:

Appellant insists that the mere fact of seeing a person carrying a traveling bag and a carton box should not elicit the slightest suspicion of the commission of any crime since that is normal. But precisely, it is in the ordinary nature of things that drugs being illegally transported are necessarily hidden in containers and concealed from view. Thus, the officers could reasonably assume, and not merely on a hollow suspicion since the informant was by their side and had so informed them, that the drugs were in appellants luggage. It would obviously have been irresponsible, if now downright absurd under the circumstances, to require the constable to adopt a wait and see attitude at the risk of eventually losing the quarry.

Here, there were sufficient facts antecedent to the search and seizure that, at the point prior to the search were already constitutive of probable cause, and which by themselves could properly create in the minds of the officers a well-grounded and reasonable belief that appellant was in the act of violating the law. The search yielded affirmance both of that probable cause and the actuality that appellant was then actually committing a crime by illegally transporting prohibited drugs. With these attendant facts, it is ineluctable that appellant was caught in flagrante delicto, hence his arrest and the search of his belongings without the requisite warrant were both justified.[100]

While concurring with the majority, Mr. Justice Vitug reserved his vote on the discussion on the warrantless search being incidental to a lawful arrest. Mr. Justice Panganiban, joined by Messrs. Justices Melo and Puno, filed a Separate Opinion.

Although likewise concurring in the majoritys ruling that appellant consented to the inspection of his baggage, Justice Panganiban disagreed with the conclusion that the warrantless search was incidental to a lawful arrest. He argued that jurisprudence required personal knowledge on the part of the officers making the in flagrante delicto arrest. In Montilla, the appellant did not exhibit any overt act or strange conduct that would reasonably arouse in their minds suspicion that he was embarking on some felonious enterprise.

Law and jurisprudence in fact require stricter grounds for valid arrests and searches without warrant than for the issuance of warrants therefore. In the former, the arresting person must have actually witnessed the crime being committed or attempted by the person sought to be arrested; or he must have personal knowledge of facts indicating that the person to be arrested perpetrated the crime that had just occurred. In the latter case, the judge simply determines personally from testimonies of witnesses that there exists reasonable grounds to believe that a crime was committed by the accused.

.

To say that reliable tips constitute probable cause for a warrantless arrest or search is in my opinion, a dangerous precedent and places in great jeopardy the doctrines laid down in many decisions made by this Court, in its effort to zealously guard and protect the sacred constitutional right against unreasonable arrests, searches and seizures. Everyone would be practically at the mercy of so-called informants, reminiscent of the makapilis during the Japanese occupation. Any one whom they point out to a police officer as a possible violator of the law could then be subject to search and possible arrest. This is placing limitless power upon informants who will no longer be required to affirm under oath their accusations, for they can always delay their giving of tips in order to justify warrantless arrests and searches. Even law enforcers can use this as an oppressive tool to conduct searches without warrants, for they can always claim that they received raw intelligence information only on the day or afternoon before. This would clearly be a circumvention of the legal requisites for validly effecting an arrest or conducting a search and seizure. Indeed the majoritys ruling would open loopholes that would allow unreasonable arrests, searches and seizures.[101]

Montilla would shortly find mention in Justice Panganibans concurring opinion in People v. Doria, supra, where this Court ruled:

Accused-Appellant Gaddao was arrested solely on the basis of the alleged identification made by her co-accused. PO3 Manlangit, however, declared in his direct examination that appellant Doria named his co-accused in response to his (PO3 Manlangits) query as to where the marked money was. Appellant Doria did not point to appellant Gaddao as his associate in the drug business, but as the person with whom he left the marked bills. This identification does not necessarily lead to the conclusion that appellant Gaddao conspired with her co-accused in pushing drugs. Appellant Doria may have left the money in her house, with or without any conspiracy. Save for accused-appellant Dorias word, the Narcom agents had no showing that the person who affected the warantless arrest had, in his own right, knowledge of facts implicating the person arrested to the perpetration of a criminal offense, the arrest is legally objectionable.[102] [Italics in the original.]

Expressing his accord with Mr. Justice Punos ponencia, Justice Panganiban said that Doria rightfully brings the Court back to well-settled doctrines on warrantless arrests and searches, which have seemingly been modified through an obiter in People v. Ruben Montilla.[103]

Montilla, therefore, has been seemingly discredited insofar as it sanctions searches incidental to lawful arrest under similar circumstances. At any rate, Montilla was a consented search. As will be demonstrated later, the same could not be said of this case.

That leaves the prosecution with People v. Valdez, which, however, involved an on-the-spot information. The urgency of the circumstances, an element not present in this case, prevented the arresting officer therein from obtaining a warrant.

Appellants in this case were neither performing any overt act or acting in a suspicious manner that would hint that a crime has been, was being, or was about to be, committed. If the arresting officers testimonies are to be believed, appellants were merely helping each other carry a carton box. Although appellant Tudtud did appear afraid and perspiring,[104] pale[105] and trembling,[106] this was only after, not before, he was asked to open the said box.

In no sense can the knowledge of the herein arresting officers that appellant Tudtud was in possession of marijuana be described as personal, having learned the same only from their informant Solier. Solier, for his part, testified that he obtained his information only from his neighbors and the friends of appellant Tudtud:

Q What was your basis in your report to the police that Tudtud is going to Cotabato and get stocks of marijuana?

A Because of the protest of my neighbors who were saying who will be the person whou [sic] would point to him because he had been giving trouble to the neighborhood because according to them there are [sic] proliferation of marijuana in our place. That was the complained [sic] of our neighbors.

Q Insofar as the accused Tudtud is concerned what was your basis in reporting him particularly?

A His friends were the once who told me about it.

Q For how long have you know [sic] this fact of alleged activity of Tudtud in proliferation of marijuana?

A About a month.

.

Q Regarding the report that Tudtud went to Cotabato to get stocks of marijuana which led to his apprehension sometime in the evening of August 1 and according to the report [which] is based on your report my question is, how did you know that Tudtud will be bringing along with him marijuana stocks on August 1, 1999?

.

A Because of the information of his neighbor.[107]

In other words, Soliers information itself is hearsay. He did not even elaborate on how his neighbors or Tudtuds friends acquired their information that Tudtud was responsible for the proliferation of drugs in their neighborhood.

Indeed, it appears that PO1 Floreta himself doubted the reliablility of their informant. He testified on cross-examination:

Q You mean to say that Bobot Solier, is not reliable?

A He is trustworthy.

Q Why [did] you not consider his information not reliable if he is reliable?

A (witness did not answer).

ATTY. CAETE:

Never mind, do not answer anymore. Thats all.[108]

The prosecution, on re-direct examination, did not attempt to extract any explanation from PO1 Floreta for his telling silence.

Confronted with such a dubious informant, the police perhaps felt it necessary to conduct their own surveillance. This surveillance, it turns out, did not actually consist of staking out appellant Tudtud to catch him in the act of plying his illegal trade, but of a mere gather[ing] of information from the assets there.[109] The police officers who conducted such surveillance did not identify who these assets were or the basis of the latters information. Clearly, such information is also hearsay, not of personal knowledge.

Neither were the arresting officers impelled by any urgency that would allow them to do away with the requisite warrant, PO1 Desiertos assertions of lack of time[110] notwithstanding. Records show that the police had ample opportunity to apply for a warrant, having received Soliers information at around 9:00 in the morning; Tudtud, however, was expected to arrive at around 6:00 in the evening of the same day.[111] In People v. Encinada, supra, the Court ruled that there was sufficient time to procure a warrant where the police officers received at 4:00 in the afternoon an intelligence report that the accused, who was supposedly carrying marijuana, would arrive the next morning at 7:00 a.m.:

Even if the information was received by Bolonia about 4:00 p.m. of May 20, 1992 at his house, there was sufficient time to secure a warrant of arrest, as the M/V Sweet Pearl was not expected to dock until 7:00 a.m. the following day. Administrative Circular No. 13 allows application for search warrants even after office hours:

3. Raffling shall be strictly enforced, except only in case where an application for search warrant may be filed directly with any judge whose jurisdiction the place to be searched is located, after office hours, or during Saturdays, Sundays, and legal holidays, in which case the applicant is required to certify under oath the urgency of the issuance thereof after office hours, or during Saturdays, Sundays and legal holidays; . . ..

The same procedural dispatch finds validation and reiteration in Circular No. 19, series of 1987, entitled Amended Guidelines and Procedures on Application for search warrants for Illegal Possession of Firearms and Other Serious Crimes Filed in Metro Manila Courts and Other Courts with Multiple Salas:

This Court has received reports of delay while awaiting raffle, in acting on applications for search warrants in the campaign against loose firearms and other serious crimes affecting peace and order. There is a need for prompt action on such applications for search warrant. Accordingly, these amended guidelines in the issuance of a search warrant are issued:

1. All applications for search warrants relating to violation of the Anti-subversion Act, crimes against public order as defined in the Revised Penal Code, as amended, illegal possession of firearms and/or ammunition and violations of the Dangerous Drugs Act of 1972, as amended, shall no longer be raffled and shall immediately be taken cognizance of and acted upon by the Executive Judge of the Regional Trial Court, Metropolitan Trial Court, and Municipal Trial Court under whose jurisdiction the place to be searched is located.

2. In the absence of the Executive Judge, the Vice-Executive Judge shall take cognizance of and personally act on the same. In the absence of the Executive Judge or Vice-Executive Judge, the application may be taken cognizance of and acted upon by any judge of the Court where application is filed.

3. Applications filed after office hours, during Saturdays, Sundays and holidays, shall likewise be taken cognizance of and acted upon by any judge of the Court having jurisdiction of the place to be searched, but in such cases the applicant shall certify and state the facts under oath, to the satisfaction of the judge, that its issuance is urgent.

4. Any judge acting on such application shall immediately and without delay personally conduct the examination of the applicant and his witnesses to prevent the possible leakage of information. He shall observe the procedures, safeguards, and guidelines for the issuance of search warrants provided for in this Courts Administrative Circular No. 13, dated October 1, 1985.[112] [Italics in the original.]

Given that the police had adequate time to obtain the warrant, PO1 Floretas testimony that the real reason for their omission was their belief that they lacked sufficient basis to obtain the same assumes greater significance. This was PO1 Floretas familiar refrain:

Q When Solier reported to you that fact, that Tudtud will be coming from Cotabato to get that (sic) stocks, you did not go to court to get a search warrant on the basis of the report of Bobot Solier?

A No.

Q Why?

A Because we have no real basis to secure the search warrant.

Q When you have no real basis to secure a search warrant, you have also no real basis to search Tudtud and Bulong at that time?

A Yes, sir.

.

Q And Bobot Solier told you that Tudtud, that he would already bring marijuana?

A Yes, sir.

Q And this was 9:00 a.m.?

A Yes, sir.

Q The arrival of Tudtud was expected at 6:00 p.m.?

A Yes, sir.

Q Toril is just 16 kilometers from Davao City?

A Yes, sir.

Q And the Office of the Regional Trial Court is only about 16 kilometers, is that correct?

A Yes, sir.

Q And it can be negotiated by thirty minutes by a jeep ride?

A Yes, sir.

Q And you can asked [sic] the assistance of any prosecutor to apply for the search warrant or the prosecutor do [sic] not assist?

A They help.

Q But you did not come to Davao City, to asked [sic] for a search warrant?

A As I said, we do not have sufficient basis.[113]

It may be conceded that the mere subjective conclusions of a police officer concerning the existence of probable cause is not binding on [the courts] which must independently scrutinize the objective facts to determine the existence of probable cause and that a court may also find probable cause in spite of an officers judgment that none exists.[114] However, the fact that the arresting officers felt that they did not have sufficient basis to obtain a warrant, despite their own information-gathering efforts, raises serious questions whether such surveillance actually yielded any pertinent information and even whether they actually conducted any information-gathering at all, thereby eroding any claim to personal knowledge.

Finally, there is an effective waiver of rights against unreasonable searches and seizures if the following requisites are present:

1. It must appear that the rights exist;

2. The person involved had knowledge, actual or constructive, of the existence of such right;

3. Said person had an actual intention to relinquish the right.[115]

Here, the prosecution failed to establish the second and third requisites. Records disclose that when the police officers introduced themselves as such and requested appellant that they see the contents of the carton box supposedly containing the marijuana, appellant Tudtud said it was alright. He did not resist and opened the box himself.

The fundamental law and jurisprudence require more than the presence of these circumstances to constitute a valid waiver of the constitutional right against unreasonable searches and seizures. Courts indulge every reasonable presumption against waiver of fundamental constitutional rights; acquiescence in the loss of fundamental rights is not to be presumed.[116] The fact that a person failed to object to a search does not amount to permission thereto.

. As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officers authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law.[117] [Underscoring supplied.]

Thus, even in cases where the accused voluntarily handed her bag[118] or the chairs[119] containing marijuana to the arresting officer, this Court held there was no valid consent to the search.

On the other hand, 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 and shift to the accused the burden of proving that the search was unconsented.[120]

In any case, any presumption in favor of regularity would be severely diminished by the allegation of appellants in this case that the arresting officers pointed a gun at them before asking them to open the subject box. Appellant Tudtud testified as follows:

Q This person who approached you according to you pointed something at you[.] [What] was that something?

A A 38 cal. Revolver.

Q How did he point it at you?

A Like this (Witness demonstrating as if pointing with his two arms holding something towards somebody).

Q This man[,] what did he tell you when he pointed a gun at you?

A He said do not run.

Q What did you do?

A I raised my hands and said Sir, what is this about?

Q Why did you call him Sir?

A I was afraid because when somebody is holding a gun, I am afraid.

Q Precisely, why did you address him as Sir?

A Because he was holding a gun and I believed that somebody who is carrying a gun is a policeman.

Q When you asked him what is this? What did he say?

A He said I would like to inspect what you are carrying.[]

Q What did you say when you were asked to open that carton box?

A I told him that is not mine.

Q What did this man say?

A He again pointed to me his revolver and again said to open.

Q What did you do?

A So I proceeded to open for fear of being shot.[121]

Appellants implied acquiescence, if at all, could not have been more than mere passive conformity given under coercive or intimidating circumstances and is, thus, considered no consent at all within the purview of the constitutional guarantee.[122] Consequently, appellants lack of objection to the search and seizure is not tantamount to a waiver of his constitutional right or a voluntary submission to the warrantless search and seizure.[123]

As the search of appellants box does not come under the recognized exceptions to a valid warrantless search, the marijuana leaves obtained thereby are inadmissible in evidence. And as there is no evidence other than the hearsay testimony of the arresting officers and their informant, the conviction of appellants cannot be sustained.

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.[124]

The right against unreasonable search and seizure in turn is at the top of the hierarchy of rights,[125] next only to, if not on the same plane as, the right to life, liberty and property, which is protected by the due process clause.[126] This is as it should be for, as stressed by a couple of noted freedom advocates,[127] the right to personal security which, along with the right to privacy, is the foundation of the right against unreasonable search and seizure includes the right to exist, and the right to enjoyment of life while existing. Emphasizing such right, this Court declared in People v. Aruta:

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 to the public welfare, still it may be exercised and the law enforced without transgressing the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government.

Those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of order. Order is too high a price to pay for the loss of liberty. As Justice Holmes declared: I think it is less evil that some criminals escape than that the government should play an ignoble part. It is simply not allowed in free society to violate a law to enforce another, especially if the law violated is the Constitution itself.[128]

Thus, given a choice between letting suspected criminals escape or letting the government play an ignoble part, the answer, to this Court, is clear and ineluctable.

WHEREFORE, the Decision of the Regional Trial Court of Davao City is REVERSED. Appellants Noel Tudtud y Paypa and Dindo Bolong y Naret are hereby ACQUITTED for insufficiency of evidence. The Director of the Bureau of Prisons is ordered to cause the immediate release of appellants from confinement, unless they are being held for some other lawful cause, and to report to this Court compliance herewith within five (5) days from receipt hereof.

SO ORDERED.

Bellosillo, (Chairman), Austria-Martinez, and Callejo, Sr., JJ., concur.

Quisumbing, J., please see dissenting opinion.



[1] 277 U.S. 438, 470 (1927); 72 L. Ed. 944.

[2] TSN, 15 November 1999, p. 5.

[3] TSN, 28 January 2000, p. 3.

[4] Also appears SPO2 Villalongja in the Records.

[5] TSN, 15 November 1999, p. 7; TSN, 16 November 1999.

[6] Id., at 7-8.

[7] Id., at 8; TSN, 16 November 1999, p. 6.

[8] Ibid; id., at 7.

[9] Ibid; id., at 8-9.

[10] TSN, 15 November 1999, p. 9; id., at 7.

[11] Ibid.

[12] Exhibit A.

[13] TSN, 15 November 1999, pp. 9-10.

[14] Id., at 9.

[15] Ibid.

[16] TSN, 15 November 1999, p. 11.

[17] Ibid.; TSN, 16 November 1999, p. 10.

[18] TSN, 16 November 1999, p. 10.

[19] TSN, 15 November 1999, p. 11; TSN, 16 November 1999, pp. 10-11.

[20] Ibid.; id., at 11.

[21] Ibid.; ibid.

[22] Exhibit B.

[23] TSN, 15 November 1999, pp. 11-12; TSN, 16 November 1999, p. 12.

[24] TSN, 16 November 1999, p. 13.

[25] TSN, 15 November 1999, p. 12; TSN, 16 November 1999, p. 13.

[26] Id., at 13; id., at 14.

[27] Ibid.

[28] TSN, 15 November 1999, pp. 13-14; TSN, 16 November 1999, p. 14.

[29] TSN, 12 November 1999, pp. 6-7.

[30] Exhibit E.

[31] The Information (Records, p. 1) against the accused reads:

That on or about August 1, 1999, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, conspiring, confederating together and helping one another, willfully, unlawfully and feloniously had in their possession two (2) packages of Marijuana leaves and stems with leaves, weighing 890 grams and 3.2 kgs. more or less, respectively, which are prohibited drugs.

Contrary to law.

[32] Rep. Act No. 6425 (1972), sec. 8.

[33] TSN, 29 October 1999, p. 2; Records, pp. 17-18.

[34] Ibid.

[35] TSN, 4 February 2000, p. 2.

[36] Ibid.

[37] TSN, 4 February 2000, pp. 2-3.

[38] Id., at 4.

[39] Ibid.

[40] Ibid.

[41] Ibid.

[42] TSN, 4 February 2000, pp. 5-10.

[43] Id., at 10.

[44] Id., at 5.

[45] Id., at 5, 10.

[46] Id., at 5, 10.

[47] Id., at 5, 10.

[48] Id., at 5, 10.

[49] Id., at 5.

[50] TSN, 8 February 2000, p. 4.

[51] Id., at 5.

[52] Ibid.

[53] Ibid.

[54] TSN, 8 February 2000, p. 15.

[55] Id., at 7, 14.

[56] Id., at 19-21.

[57] Id., at 23.

[58] Id., at 26-27.

[59] TSN, 4 February 2000, pp. 6-7.

[60] Records, p. 148. The dispositive portion of the Decision dated 8 March 2000 reads:

WHEREFORE, finding the evidence of prosecution more than sufficient to prove the guilt of both accused of the offense charged beyond reasonable doubt, pursuant to the provision of Sec. 8[,] Art. 11 of the Republic Act 6575, as amended by Republic Act 7659, Sec. 20[,] Art. 4, without any aggravating nor mitigating circumstances attendant in the commission of the offense charged, both above-named accused, Noel Tudtud [y] Paypa and Dindo Bolong [y] Naret, are sentenced to suffer an [sic] imprisonment of reclusion perpetua, together with all accessory penalty [sic] as provided for by law and to pay a fine of P500,000.00 in favor of the government.

The confiscated subject marijuana dried leaves, placed in a carton box with brand name King Flakes marked Exh. A and B for the prosecution, are ordered confiscated in favor of the government, and are turn-over [sic] to the Office of the Narcotics Command, Davao City, for its immediate destruction through burning, as the circumstances, will warrant.

SO ORDERED.

[61] People v. Barros, G.R. No. 90640, 29 March 1994, 231 SCRA 557.

[62] People v. Bolasa, 378 Phil. 1073, 1078-1079 (1999).

[63] G.R. No. L-72564, 15 April 1988, 160 SCRA 646 (1988).

[64] G.R. No. 63630, 6 April 1990, 184 SCRA 220 (1990).

[65] G.R. No. 123872, 30 January 1998, 285 SCRA 703 (1998).

[66] 363 Phil. 481 (1999).

[67] G.R. No. 85177, 20 August 1990, 188 SCRA 751 (1990).

[68] G.R. No. 91107, 19 June 1991, 198 SCRA 401 (1991).

[69] G.R. No. 86218, 12 September 1992, 214 SCRA 63 (1992).

[70] Now Section 13, as amended.

[71] People v. Chua Ho San, 367 Phil. 703 (1999), citing Malacat v. Court of Appeals, 347 Phil. 462 (1997).

[72] 68 Am Jur 2d, Search and Seizure 114.

[73] People v. Molina, G.R. No. 133917, 19 February 2001, 352 SCRA 174.

[74] 228 Phil. 1 (1986).

[75] Id., at 15.

[76] Ibid.

[77] G.R. No. L-74869, 6 July 1988, 163 SCRA 402 (1988). Grio-Aquino, J., dissented.

[78] Id., at 409-410.

[79] People v. Mengote, G.R. No. 87059, 22 June 1992, 210 SCRA 174 (1992).

[80] Malacat v. Court of Appeals, 347 Phil. 462 (1997).

[81] People v. Rodriguez, G.R. No. 79965, 25 May 1994, 232 SCRA 498 (1994).

[82] People v. Cuizon, 326 Phil. 345 (1996).

[83] People v. Encinada, 345 Phil. 301(1997).

[84] People v. Molina, supra, note 72.

[85] People v. Aruta, 351 Phil. 868 (1998).

[86] 361 Phil. 595 (1999).

[87] G.R. Nos. 136066-67, 4 February 2003.

[88] G.R. No. 63630, 6 April 1990, 184 SCRA 220.

[89] Supra, note 68. Fernan, C.J., Narvasa, Cruz, Gutierrez and Gancayco, JJ., dissented.

[90] G.R. Nos. 117952-53, 14 February 2001, 351 SCRA 573. In De Guzman, however, the narration of facts do not indicate how the arresting officer learned that the accused was engaged in the sale of drugs, whether from personal knowledge or through an informant.

[91] Supra, note 67.

[92] Supra, note 69.

[93] 311 Phil. 290 (1995). Padilla, J., dissented,

 

[94] 341 Phil. 801 (1997).

[95] Supra, note 65.

[96] Supra, note 66.

[97] 417 Phil. 342 (2001).

[98] People v. Salangga, G.R. No. 100910, 25 July 1994, 234 SCRA 407.

[99] Claudio involved information provided by the arresting office himself and, hence, is not included in the above survey of cases.

[100] People v. Montilla, supra, note 65, at 721-722.

[101] Id., at 733-734.

[102] People v. Doria, supra, note 86, at 632-633.

[103] Id., at 642-643.

[104] TSN, 16 November 1999, p. 18.

[105] Id., at 24.

[106] Ibid.

[107] TSN, 28 January 2000, p. 3.

[108] TSN, 16 November 1999, p. 29. Underscoring supplied.

[109] TSN, 15 November 1999, p. 7.

[110] Id., at 14.

[111] TSN, 16 November 1999, p. 17.

[112] People v. Encinada, supra, note 83, at 319-321.

[113] Id., at 17, 28. Underscoring supplied.

[114] United States ex rel. Senk v. Brierly, 381 F.Supp. 447, 463 (1974).

[115] People v. Burgos, supra; note 74; People v. Salangga, supra; note 98; People v. Aruta, supra, note 85.

[116] Ibid.; ibid.; ibid.

[117] Ibid.; People v. Aruta, supra, note 85.

[118] People v. Aruta, supra, note 85.

[119] People v. Encinada, supra, note 83.

[120] People v. Cubcubin, 413 Phil. 249 (2001). See also People v. Salanguit, G.R. No. 133254-55, 19 April 2001, 356 SCRA 683 (2001); People v. Encinada, supra, note 83.

[121] TSN, February 4, 2000, pp. 4-5. See also Id., at 8, and TSN, 8 February 2000, p. 5.

[122] People v. Compacion, 414 Phil. 68 (2001).

[123] Ibid.

[124] C.f. Constitution, Arts. VI (Legislative Department), VII (Executive Department), VIII (Judicial Department), IX (Constitutional Commissions) and X (Local Government).

[125] See Const., art. III, sec. 2.

[126] Id., sec. 1.

[127] D. Sandifer and L. Scheman, The Foundation Of Freedom 44-45 (1966).

[128] People v. Aruta, supra, note 85, at 895.