Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 176830

February 11, 2014

SATURNINO
C.
OCAMPO, Petitioner,
vs.
HON. EPHREM S. ABANDO, in his capacity as Presiding Judge of the
Regional Trial Court of Hilongos, Leyte, Branch 18, CESAR M.
MERIN, in. his capacity as Approving Prosecutor and Officer-inCharge, ROSULO U. VIVERO, in his capacity as Investigating
Prosecutor, RAUL M. GONZALEZ, in his capacity as Secretary of the
Department of Justice, Respondents.
x-----------------------x
G.R. No. 185587
RANDALL
B.
ECHANIS, Petitioner,
vs.
HON. THELMA BUNYl-MEDINA, in her capacity as Presiding Judge
of the Regional Trial Court of Manila, Branch 32, HON. EPHREM S.
ABANDO, in his capacity as Presiding Judge of the Regional Trial
Court of Hilongos, Leyte, Branch 18, CESAR M. MERIN, in his
capacity as Approving Prosecutor and Officer-in-Charge, ROSULO U.
VIVERO, in his capacity as Investigating Prosecutor, RAUL M.
GONZALEZ, in his capacity as Secretary of the Department of
Justice, Respondents.
x-----------------------x
G.R. No. 185636
RAFAEL
G.
BAYLOSIS, Petitioner,
vs.
HON. THELMA BUNYI-MEDINA, in her capacity as Presiding Judge
of the Regional Trial Court of Manila, Branch 32, HON. EPHREM S.
ABANDO, in his capacity as Presiding Judge of the Regional Trial
Court of Hilongos, Leyte, Branch 18, CESAR M. MERIN, in his
capacity as Approving Prosecutor and Officer-in-Charge, ROSULO U.
VIVERO, in his capacity as Investigating Prosecutor, RAUL M.
GONZALEZ, in his capacity as Secretary of the Department of
Justice, Respondents.

x-----------------------x
G.R. No. 190005
VICENTE
P.
LADLAD, Petitioner,
vs.
HON. THELMA BUNYI-MEDINA, in her capacity as Presiding Judge
of the Regional Trial Court of Manila, Branch 32, and the PEOPLE OF
THE PHILIPPINES, Respondents.
DECISION
SERENO, CJ.:
On 26 August 2006, a mass grave was discovered by elements of the 43rd
Infantry Brigade of the Philippine Army at Sitio Sapang Daco, Barangay
Kaulisihan, Inopacan, Leyte.1 The mass grave contained skeletal remains of
individuals believed to be victims of "Operation Venereal Disease" (Operation
VD) launched by members of the Communist Party of the Philippines/New
Peoples Army/National Democratic Front of the Philippines (CPP/NPA/NDFP)
to purge their ranks of suspected military informers.
While the doctrine of hierarchy of courts normally precludes a direct invocation
of this Courts jurisdiction, we take cognizance of these petitions considering that
petitioners have chosen to take recourse directly before us and that the cases are
of significant national interest.
Petitioners have raised several issues, but most are too insubstantial to require
consideration. Accordingly, in the exercise of sound judicial discretion and
economy, this Court will pass primarily upon the following:
1. Whether petitioners were denied due process during preliminary
investigation and in the issuance of the warrants of arrest.
2. Whether the murder charges against petitioners should be dismissed
under the political offense doctrine.
ANTECEDENT FACTS
These are petitions for certiorari and prohibition2 seeking the annulment of the
orders and resolutions of public respondents with regard to the indictment and
issuance of warrants of arrest against petitioners for the crime of multiple
murder.
Police Chief Inspector George L. Almaden (P C/Insp. Almaden) of the Philippine
National Police (PNP) Regional Office 8 and Staff Judge Advocate Captain Allan
Tiu (Army Captain Tiu) of the 8th Infantry Division of the Philippine Army sent

12 undated letters to the Provincial Prosecutor of Leyte through Assistant

Provincial Prosecutor Rosulo U. Vivero (Prosecutor Vivero).3 The letters
requested appropriate legal action on 12 complaint-affidavits attached therewith
accusing 71 named members of the Communist Party of the Philippines/New
Peoples Army/National Democratic Front of the Philippines (CPP/NPA/NDFP)
of murder, including petitioners herein along with several other unnamed
members.
The letters narrated that on 26 August 2006, elements of the 43rd Infantry
Brigade of the Philippine Army discovered a mass grave site of the
CPP/NPA/NDFP at Sitio Sapang Daco, Barangay Kaulisihan, Inopacan,
Leyte.4Recovered from the grave site were 67 severely deteriorated skeletal
remains believed to be victims of Operation VD.5
The PNP Scene of the Crime Operation (SOCO) Team based in Regional Office 8
was immediately dispatched to the mass grave site to conduct crime
investigation, and to collect, preserve and analyze the skeletal remains.6 Also,
from 11-17 September 2006, an investigation team composed of intelligence
officers, and medico-legal and DNA experts, conducted forensic crime analysis
and collected from alleged relatives of the victims DNA samples for matching.7
The Initial Specialist Report8 dated 18 September 2006 issued by the PNP Crime
Laboratory in Camp Crame, Quezon City, was inconclusive with regard to the
identities of the skeletal remains and even the length of time that they had been
buried. The report recommended the conduct of further tests to confirm the
identities of the remains and the time window of death.9
However, in a Special Report10 dated 2 October 2006, the Case Secretariat of the
Regional and National Inter-Agency Legal Action Group (IALAG) came up with
the names of ten (10) possible victims after comparison and examination based
on testimonies of relatives and witnesses.11
The 12 complaint-affidavits were from relatives of the alleged victims of
Operation VD. All of them swore that their relatives had been abducted or last
seen with members of the CPP/NPA/NDFP and were never seen again.
They also expressed belief that their relatives remains were among those
discovered at the mass grave site.
Also attached to the letters were the affidavits of Zacarias Piedad,12 Leonardo C.
Tanaid, Floro M. Tanaid, Numeriano Beringuel, Glecerio Roluna and Veronica P.
Tabara. They narrated that they were former members of the
CPP/NPA/NDFP.13 According to them, Operation VD was ordered in 1985 by the
CPP/NPA/NDFP Central Committee.14 Allegedly, petitioners Saturnino C.
Ocampo (Ocampo),15 Randall B. Echanis (Echanis),16 Rafael G. Baylosis
(Baylosis),17 and Vicente P. Ladlad (Ladlad)18 were then members of the Central
Committee.

According to these former members, four sub-groups were formed to implement

Operation VD, namely, (1) the Intel Group responsible for gathering information
on suspected military spies and civilians who would not support the movement;
(2) the Arresting Group charged with their arrests; (3) the Investigation Group
which would subject those arrested to questioning; and (4) the Execution Group
or the "cleaners" of those confirmed to be military spies and civilians who would
not support the movement.19
From 1985 to 1992, at least 100 people had been abducted, hog-tied, tortured and
executed by members of the CPP/NPA/NDF20 pursuant to Operation VD.21
On the basis of the 12 letters and their attachments, Prosecutor Vivero issued a
subpoena requiring, among others, petitioners to submit their counter-affidavits
and those of their witnesses.22 Petitioner Ocampo submitted his counteraffidavit.23 Petitioners Echanis24 and Baylosis25 did not file counter-affidavits
because they were allegedly not served the copy of the complaint and the attached
documents or evidence. Counsel of petitioner Ladlad made a formal entry of
appearance
on
8
December
2006
during
the
preliminary
26
investigation. However, petitioner Ladlad did not file a counter-affidavit
because he was allegedly not served a subpoena.27
In a Resolution28 dated 16 February 2007, Prosecutor Vivero recommended the
filing of an Information for 15 counts of multiple murder against 54 named
members of the CPP/NPA/NDFP, including petitioners herein, for the death of
the following: 1) Juanita Aviola, 2) Concepcion Aragon, 3) Gregorio Eras, 4)
Teodoro Recones, Jr., 5) Restituto Ejoc, 6) Rolando Vasquez, 7) Junior Milyapis,
8) Crispin Dalmacio, 9) Zacarias Casil, 10) Pablo Daniel, 11) Romeo Tayabas, 12)
Domingo Napoles, 13) Ciriaco Daniel, 14) Crispin Prado, and 15) Ereberto
Prado.29
Prosecutor Vivero also recommended that Zacarias Piedad, Leonardo Tanaid,
Numeriano Beringuel and Glecerio Roluna be dropped as respondents and
utilized as state witnesses, as their testimonies were vital to the success of the
prosecution.30 The Resolution was silent with regard to Veronica Tabara.
The Information was filed before the Regional Trial Court (RTC) Hilongos, Leyte,
Branch 18 (RTC Hilongos, Leyte) presided by Judge Ephrem S. Abando (Judge
Abando) on 28 February 2007, and docketed as Criminal Case No. H1581.31 Petitioner Ocampo filed an Ex Parte Motion to Set Case for Clarificatory
Hearing dated 5 March 2007 prior to receiving a copy of the Resolution
recommending the filing of the Information.32
On 6 March 2007, Judge Abando issued an Order finding probable cause "in the
commission by all mentioned accused of the crime charged."33 He ordered the
issuance of warrants of arrest against them with no recommended bail for their
temporary liberty.34

On 16 March 2007, petitioner Ocampo filed before us this special civil action for
certiorari and prohibition under Rule 65 of the Rules of Court and docketed as
G.R. No. 176830 seeking the annulment of the 6 March 2007 Order of Judge
Abando and the 16 February 2007 Resolution of Prosecutor Vivero.35 The petition
prayed for the unconditional release of petitioner Ocampo from PNP custody, as
well as the issuance of a temporary restraining order/ writ of preliminary
injunction to restrain the conduct of further proceedings during the pendency of
the petition.36
Petitioner Ocampo argued that a case for rebellion against him and 44 others
(including petitioners Echanis and Baylosis37 and Ladlad38) docketed as Criminal
Case No. 06-944 was then pending before the RTC Makati, Branch 150 (RTC
Makati).39 Putting forward the political offense doctrine, petitioner Ocampo
argues that common crimes, such as murder in this case, are already absorbed by
the crime of rebellion when committed as a necessary means, in connection with
and in furtherance of rebellion.40
We required41 the Office of the Solicitor General (OSG) to comment on the
petition and the prayer for the issuance of a temporary restraining order/ writ of
preliminary injunction, and set42 the case for oral arguments on 30 March 2007.
The OSG filed its Comment on 27 March 2007.43
The following were the legal issues discussed by the parties during the oral
arguments:
1. Whether the present petition for certiorari and prohibition is the proper
remedy of petitioner Ocampo;
2. Assuming it is the proper remedy, whether he was denied due process
during preliminary investigation and in the issuance of the warrant of
arrest;
3. Whether the murder charges against him are already included in the
rebellion charge against him in the RTC.44
Afterwards, the parties were ordered to submit their memoranda within 10
days.45 On 3 April 2007, the Court ordered the provisional release of petitioner
Ocampo
under
a P100,000
cash
bond.46
Acting on the observation of the Court during the oral arguments that the single
Information filed before the RTC Hilongos, Leyte was defective for charging 15
counts of murder, the prosecution filed a Motion to Admit Amended Information
and New Informations on 11 April 2007.47 In an Order dated 27 July 2007, Judge
Abando held in abeyance the resolution thereof and effectively suspended the
proceedings during the pendency of G.R. No. 176830 before this Court.48
While the proceedings were suspended, petitioner Echanis was arrested on 28
January 2008 by virtue of the warrant of arrest issued by Judge Abando on 6

March 2007.49 On 1 February 2008, petitioners Echanis and Baylosis filed a

Motion for Judicial Reinvestigation/ Determination of Probable Cause with
Prayer to Dismiss the Case Outright and Alternative Prayer to Recall/ Suspend
Service of Warrant.50
On 30 April 2008, Judge Abando issued an Order denying the
motion.51 Petitioners
Echanis
and
Baylosis
filed
a
Motion
for
Reconsideration52 dated 30 May 2008, but before being able to rule thereon,
Judge Abando issued an Order dated 12 June 2008 transmitting the records of
Criminal Case No. H-1581 to the Office of the Clerk of Court, RTC Manila.53 The
Order was issued in compliance with the Resolution dated 23 April 2008 of this
Court granting the request of then Secretary of Justice Raul Gonzales to transfer
the venue of the case.
The case was re-raffled to RTC Manila, Branch 32 (RTC Manila) presided by
Judge Thelma Bunyi-Medina (Judge Medina) and re-docketed as Criminal Case
No. 08-262163.54 Petitioner Echanis was transferred to the PNP Custodial Center
in Camp Crame, Quezon City. On 12 August 2008, petitioners Echanis and
Baylosis filed their Supplemental Arguments to Motion for Reconsideration.55
In an Order56 dated 27 October 2008, Judge Medina suspended the proceedings
of the case pending the resolution of G.R. No. 176830 by this Court.
On 18 December 2008, petitioner Ladlad filed with the RTC Manila a Motion to
Quash and/or Dismiss.57
On 23 December 2008, petitioner Echanis filed before us a special civil action for
certiorari and prohibition under Rule 65 of the Rules of Court seeking the
annulment of the 30 April 2008 Order of Judge Abando and the 27 October 2008
Order of Judge Medina.58 The petition, docketed as G.R. No. 185587, prayed for
the unconditional and immediate release of petitioner Echanis, as well as the
issuance of a temporary restraining order/writ of preliminary injunction to
restrain his further incarceration.59
On 5 January 2009, petitioner Baylosis filed before us a special civil action for
certiorari and prohibition under Rule 65 of the Rules of Court also seeking the
annulment of the 30 April 2008 Order of Judge Abando and the 27 October 2008
Order of Judge Medina.60 The petition, docketed as G.R. No. 185636, prayed for
the issuance of a temporary restraining order/ writ of preliminary injunction to
restrain the implementation of the warrant of arrest against petitioner Baylosis.61
The Court consolidated G.R. Nos. 185587 and 185636 on 12 January 2009.62
On 3 March 2009, the Court ordered the further consolidation of these two cases
with G.R. No. 176830.63 We required64 the OSG to comment on the prayer for
petitioner Echaniss immediate release, to which the OSG did not interpose any
objection on these conditions: that the temporary release shall only be for the

purpose of his attendance and participation in the formal peace negotiations

between the Government of the Republic of the Philippines (GRP) and the
CPP/NPA/NDFP, set to begin in August 2009; and that his temporary release
shall not exceed six (6) months.65 The latter condition was later modified, such
that his temporary liberty shall continue for the duration of his actual
participation in the peace negotiations.66
On 11 August 2009, the Court ordered the provisional release of petitioner
Echanis under a P100,000 cash bond, for the purpose of his participation in the
formal peace negotiations.67
Meanwhile, the Department of Justice (DOJ) filed its Opposition68 to petitioner
Ladlads motion to quash before the RTC Manila. The trial court conducted a
hearing on the motion on 13 February 2009.69
On 6 May 2009, Judge Medina issued an Order70 denying the motion to quash.
The motion for reconsideration filed by petitioner Ladlad was also denied on 27
August 2009.71
On 9 November 2009, petitioner Ladlad filed before us a special civil action for
certiorari under Rule 65 of the Rules of Court seeking the annulment of the 6
May 2009 and 27 August 2009 Orders of Judge Medina.72 The petition was
docketed as G.R. No. 190005.
On 11 January 2010, we ordered the consolidation of G.R. No. 190005 with G.R.
Nos. 176830, 185587 and 185636.73 We also required the OSG to file its comment
thereon. The OSG submitted its Comment74 on 7 May 2010.
On 27 July 2010, we likewise required the OSG to file its Comment in G.R. Nos.
185636 and 185587.75 These Comments were filed by the OSG on 13 December
201076 and on 21 January 2011,77 respectively. Petitioners Echanis and Baylosis
filed their Consolidated Reply78 on 7 June 2011.
On 2 May 2011, petitioner Ladlad filed an Urgent Motion to Fix Bail.79 On 21 July
2011, petitioner Baylosis filed A Motion to Allow Petitioner to Post Bail.80 The
OSG interposed no objection to the grant of a P100,000 cash bail to them
considering that they were consultants of the NDFP negotiating team, which was
then holding negotiations with the GRP peace panel for the signing of a peace
accord.81
On 17 January 2012, we granted the motions of petitioners Ladlad and Baylosis
and fixed their bail in the amount ofP100,000, subject to the condition that their
temporary release shall be limited to the period of their actual participation in the
peace negotiations.82
Petitioner Ladlad filed his Reply83 to the OSG Comment on 18 January 2013.

OUR RULING
Petitioners
were
process
during
investigation
and
in
the warrants of arrest.

accorded
the

due
preliminary
issuance
of

A. Preliminary Investigation
A preliminary investigation is "not a casual affair."84 It is conducted to protect the
innocent from the embarrassment, expense and anxiety of a public trial.85 While
the right to have a preliminary investigation before trial is statutory rather than
constitutional, it is a substantive right and a component of due process in the
administration of criminal justice.86
In the context of a preliminary investigation, the right to due process of law
entails the opportunity to be heard.87 It serves to accord an opportunity for the
presentation of the respondents side with regard to the accusation. Afterwards,
the investigating officer shall decide whether the allegations and defenses lead to
a reasonable belief that a crime has been committed, and that it was the
respondent who committed it. Otherwise, the investigating officer is bound to
dismiss the complaint.
"The essence of due process is reasonable opportunity to be heard and submit
evidence in support of one's defense."88 What is proscribed is lack of opportunity
to be heard.89 Thus, one who has been afforded a chance to present ones own
side of the story cannot claim denial of due process.90
Petitioners Echanis and Baylosis allege that they did not receive a copy of the
complaint and the attached documents or evidence.91 Petitioner Ladlad claims
that he was not served a subpoena due to the false address indicated in the 12
undated letters of P C/Insp. Almaden and Army Captain Tiu to Prosecutor
Vivero.92 Furthermore, even though his counsels filed their formal entry of
appearance before the Office of the Prosecutor, petitioner Ladlad was still not
sent a subpoena through his counsels addresses.93 Thus, they were deprived of
the right to file counter-affidavits.
Petitioner Ocampo claims that Prosecutor Vivero, in collusion with P C/Insp.
Almaden and Army Captain Tiu, surreptitiously inserted the Supplemental
Affidavit of Zacarias Piedad in the records of the case without furnishing
petitioner Ocampo a copy.94 The original affidavit of Zacarias Piedad dated 14
September 2006 stated that a meeting presided by petitioner Ocampo was held in
1984, when the launching of Operation VD was agreed upon.95Petitioner Ocampo
refuted this claim in his Counter-affidavit dated 22 December 2006 stating that
he was in military custody from October 1976 until his escape in May
1985.96 Thereafter, the Supplemental Affidavit of Zacarias Piedad dated 12
January 2007 admitted that he made a mistake in his original affidavit, and that

the meeting actually took place in June 1985.97 Petitioner Ocampo argues that he
was denied the opportunity to reply to the Supplemental Affidavit by not being
furnished a copy thereof.
Petitioner Ocampo also claims that he was denied the right to file a motion for
reconsideration or to appeal the Resolution of Prosecutor Vivero, because the
latter deliberately delayed the service of the Resolution by 19 days, effectively
denying petitioner Ocampo his right to due process.98
As to the claim of petitioners Echanis and Baylosis, we quote the pertinent
portion of Prosecutor Viveros Resolution, which states:
In connection with the foregoing and pursuant to the Revised Rules of Criminal
Procedure[,] the respondents were issued and served with Subpoena at their last
known address for them to submit their counter-affidavits and that of their
witnesses.
Majority of the respondents did not submit their counter-affidavits because they
could no longer be found in their last known address, per return of the
subpoenas. On the other hand, Saturnino Ocampo @ Satur, Fides Lim, Maureen
Palejaro and Ruben Manatad submitted their Counter-Affidavits. However,
Vicente Ladlad and Jasmin Jerusalem failed to submit the required Counter
Affidavits in spite entry of appearance by their respective counsels.99
Section 3(d), Rule 112 of the Rules of Court, allows Prosecutor Vivero to resolve
the complaint based on the evidence before him if a respondent could not be
subpoenaed. As long as efforts to reach a respondent were made, and he was
given an opportunity to present countervailing evidence, the preliminary
investigation remains valid.100The rule was put in place in order to foil
underhanded attempts of a respondent to delay the prosecution of offenses.101
In this case, the Resolution stated that efforts were undertaken to serve
subpoenas on the named respondents at their last known addresses. This is
sufficient for due process. It was only because a majority of them could no longer
be found at their last known addresses that they were not served copies of the
complaint and the attached documents or evidence.
Petitioner Ladlad claims that his subpoena was sent to the nonexistent address
"53 Sct. Rallos St., QC,"102 which had never been his address at any time.103 In
connection with this claim, we take note of the fact that the subpoena to Fides
Lim, petitioner Ladlads wife,104 was sent to the same address, and that she was
among those mentioned in the Resolution as having timely submitted their
counter-affidavits.
Despite supposedly never receiving a subpoena, petitioner Ladlads counsel filed
a formal entry of appearance on 8 December 2006.105 Prosecutor Vivero had a

reason to believe that petitioner Ladlad had received the subpoena and
accordingly instructed his counsel to prepare his defense.
Petitioner Ladlad, through his counsel, had every opportunity to secure copies of
the complaint after his counsels formal entry of appearance and, thereafter, to
participate fully in the preliminary investigation. Instead, he refused to
participate.
We have previously cautioned that "litigants represented by counsel should not
expect that all they need to do is sit back, relax and await the outcome of their
case."106 Having opted to remain passive during the preliminary investigation,
petitioner Ladlad and his counsel cannot now claim a denial of due process, since
their failure to file a counter-affidavit was of their own doing.
Neither do we find any merit in petitioner Ocampos allegation of collusion to
surreptitiously insert the Supplemental Affidavit of Zacarias Piedad in the
records. There was nothing surreptitious about the Supplemental Affidavit since
it clearly alludes to an earlier affidavit and admits the mistake committed
regarding the date of the alleged meeting. The date of the execution of the
Supplemental Affidavit was also clearly stated. Thus, it was clear that it was
executed after petitioner Ocampo had submitted his counter-affidavit. Should the
case go to trial, that will provide petitioner Ocampo with the opportunity to
question the execution of Zacarias Piedads Supplemental Affidavit.
Neither can we uphold petitioner Ocampos contention that he was denied the
right to be heard. For him to claim that he was denied due process by not being
furnished a copy of the Supplemental Affidavit of Zacarias Piedad would imply
that the entire case of the prosecution rested on the Supplemental Affidavit. The
OSG has asserted that the indictment of petitioner Ocampo was based on the
collective affidavits of several other witnesses107 attesting to the allegation that he
was a member of the CPP/NPA/NDFP Central Committee, which had ordered the
launch of Operation VD.
As to his claim that he was denied the right to file a motion for reconsideration or
to appeal the Resolution of Prosecutor Vivero due to the 19-day delay in the
service of the Resolution, it must be pointed out that the period for filing a
motion for reconsideration or an appeal to the Secretary of Justice is reckoned
from the date of receipt of the resolution of the prosecutor, not from the date of
the resolution. This is clear from Section 3 of the 2000 National Prosecution
Service Rule on Appeal:
Sec. 3. Period to appeal. The appeal shall be taken within fifteen (15) days from
receipt of the resolution, or of the denial of the motion for reconsideration/
reinvestigation if one has been filed within fifteen (15) days from receipt of the
assailed resolution. Only one motion for reconsideration shall be allowed.
(Emphasis supplied)

Thus, when petitioner Ocampo received the Resolution of Prosecutor Vivero on

12 March 2007,108 the former had until 27 March 2007 within which to file either
a motion for reconsideration before the latter or an appeal before the Secretary of
Justice. Instead, petitioner Ocampo chose to file the instant petition for certiorari
directly before this Court on 16 March 2007.
B. Issuance of the Warrants of Arrest
Article III, Section 2 of the Constitution provides that "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."
Petitioner Ocampo alleges that Judge Abando did not comply with the
requirements of the Constitution in finding the existence of probable cause for
the issuance of warrants of arrest against petitioners.109
Probable cause for the issuance of a warrant of arrest has been defined as "such
facts and circumstances which would lead a reasonably discreet and prudent man
to believe that an offense has been committed by the person sought to be
arrested."110 Although the Constitution provides that probable cause shall be
determined by the judge after an examination under oath or an affirmation of the
complainant and the witnesses, we have ruled that a hearing is not necessary for
the determination thereof.111 In fact, the judges personal examination of the
complainant and the witnesses is not mandatory and indispensable for
determining the aptness of issuing a warrant of arrest.112
It is enough that the judge personally evaluates the prosecutors report and
supporting documents showing the existence of probable cause for the
indictment and, on the basis thereof, issue a warrant of arrest; or if, on the basis
of his evaluation, he finds no probable cause, to disregard the prosecutor's
resolution and require the submission of additional affidavits of witnesses to aid
him in determining its existence.113
Petitioners Echanis and Baylosis claim that, had Judge Abando painstakingly
examined the records submitted by Prosecutor Vivero, the judge would have
inevitably dismissed the charge against them.114 Additionally, petitioner Ocampo
alleges that Judge Abando did not point out facts and evidence in the record that
were used as bases for his finding of probable cause to issue a warrant of arrest.115
The determination of probable cause for the issuance of warrants of arrest
against petitioners is addressed to the sound discretion of Judge Abando as the
trial judge.116 Further elucidating on the wide latitude given to trial judges in the
issuance of warrants of arrest, this Court stated in Sarigumba v.
Sandiganbayan117 as follows:

x x x. The trial court's exercise of its judicial discretion should not, as a general
rule, be interfered with in the absence of grave abuse of discretion. Indeed,
certiorari will not lie to cure errors in the trial court's appreciation of the evidence
of the parties, the conclusion of facts it reached based on the said findings, as well
as the conclusions of law. x x x.
Whether or not there is probable cause for the issuance of warrants for the arrest
of the accused is a question of fact based on the allegations in the Informations,
the Resolution of the Investigating Prosecutor, including other documents and/or
evidence appended to the Information.
Here, the allegations of petitioners point to factual matters indicated in the
affidavits of the complainants and witnesses as bases for the contention that
there was no probable cause for petitioners indictment for multiple murder or
for the issuance of warrants for their arrest. As stated above, the trial judges
appreciation of the evidence and conclusion of facts based thereon are not
interfered with in the absence of grave abuse of discretion. Again, "he sufficiently
complies with the requirement of personal determination if he reviews the
[I]nformation and the documents attached thereto, and on the basis thereof
forms a belief that the accused is probably guilty of the crime with which he is
being charged."118
Judge Abandos review of the Information and the supporting documents is
shown by the following portion of the judges 6 March 2007 Order:
On the evaluation of the Resolution and its Information as submitted and filed by
the Provincial Prosecution of Leyte Province supported by the following
documents: Affidavits of Complainants, Sworn Statements of Witnesses and
other pertinent documents issued by the Regional Crime Laboratory Office, PNP,
Region VIII and Camp Crame, Quezon City, pictures of the grave site and skeletal
remains, this court has the findings [sic] of probable cause in the commission by
all mentioned accused of the crime charged.119
At bottom, issues involving the finding of probable cause for an indictment and
issuance of a warrant of arrest, as petitioners are doubtless aware, are primarily
questions of fact that are normally not within the purview of a petition for
certiorari,120 such as the petitions filed in the instant consolidated cases.
The
political
offense
doctrine
is
not
a
ground
to
dismiss
the
charge
against
petitioners
prior
to
a
determination
by
the
trial
court
that
the
murders
were
committed
in
furtherance
of
rebellion.
Under the political offense doctrine, "common crimes, perpetrated in furtherance
of a political offense, are divested of their character as "common" offenses and

assume the political complexion of the main crime of which they are mere
ingredients, and, consequently, cannot be punished separately from the principal
offense, or complexed with the same, to justify the imposition of a graver
penalty."121
Any ordinary act assumes a different nature by being absorbed in the crime of
rebellion.122 Thus, when a killing is committed in furtherance of rebellion, the
killing is not homicide or murder. Rather, the killing assumes the political
complexion of rebellion as its mere ingredient and must be prosecuted and
punished as rebellion alone.
However, this is not to say that public prosecutors are obliged to consistently
charge respondents with simple rebellion instead of common crimes. No one
disputes the well-entrenched principle in criminal procedure that the institution
of criminal charges, including whom and what to charge, is addressed to the
sound discretion of the public prosecutor.123
But when the political offense doctrine is asserted as a defense in the trial court,
it becomes crucial for the court to determine whether the act of killing was done
in furtherance of a political end, and for the political motive of the act to be
conclusively demonstrated.124
Petitioners aver that the records show that the alleged murders were committed
in furtherance of the CPP/NPA/NDFP rebellion, and that the political motivation
behind the alleged murders can be clearly seen from the charge against the
alleged top leaders of the CPP/NPA/NDFP as co-conspirators.
We had already ruled that the burden of demonstrating political motivation must
be discharged by the defense, since motive is a state of mind which only the
accused knows.125 The proof showing political motivation is adduced during trial
where the accused is assured an opportunity to present evidence supporting his
defense. It is not for this Court to determine this factual matter in the instant
petitions.
As held in the case of Office of the Provincial Prosecutor of Zamboanga Del Norte
v. CA,126 if during trial, petitioners are able to show that the alleged murders were
indeed committed in furtherance of rebellion, Section 14, Rule 110 of the Rules of
Court provides the remedy, to wit:
SECTION 14. Amendment or substitution. A complaint or information may be
amended, in form or in substance, without leave of court, at any time before the
accused enters his plea. After the plea and during the trial, a formal amendment
may only be made with leave of court and when it can be done without causing
prejudice to the rights of the accused.
However, any amendment before plea, which downgrades the nature of the
offense charged in or excludes any accused from the complaint or information,

can be made only upon motion by the prosecutor, with notice to the offended
party and with leave of court. The court shall state its reasons in resolving the
motion and copies of its order shall be furnished all parties, especially the
offended party. (n)
If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in
accordance with Section 19, Rule 119, provided the accused shall not be placed in
double jeopardy. The court may require the witnesses to give bail for their
appearance at the trial. (Emphasis supplied)
Thus, if it is shown that the proper charge against petitioners should have been
simple rebellion, the trial court shall dismiss the murder charges upon the filing
of the Information for simple rebellion, as long as petitioners would not be placed
in double jeopardy.
Section 7, Rule 117 of the Rules of Court, states:
SEC. 7. Former conviction or acquittal; double jeopardy. When an accused has
been convicted or acquitted, or the case against him dismissed or otherwise
terminated without his express consent by a court of competent jurisdiction,
upon a valid complaint or information or other formal charge sufficient in form
and substance to sustain a conviction and after the accused had pleaded to the
charge, the conviction or acquittal of the accused or the dismissal of the case shall
be a bar to another prosecution for the offense charged, or for any attempt to
commit the same or frustration thereof, or for any offense which necessarily
includes or is necessarily included in the offense charged in the former complaint
or information.
Based on the above provision, double jeopardy only applies when: (1) a first
jeopardy attached; (2) it has been validly terminated; and (3) a second jeopardy is
for the same offense as in the first.127
A first jeopardy attaches only after the accused has been acquitted or convicted,
or the case has been dismissed or otherwise terminated without his express
consent, by a competent court in a valid indictment for which the accused has
entered a valid plea during arraignment.128
To recall, on 12 May 2006, an Information for the crime of rebellion, as defined
and penalized under Article 134 in relation to Article 135 of the Revised Penal
Code, docketed as Criminal Case No. 06-944 was filed before the RTC Makati
against petitioners and several others.129
However, petitioners were never arraigned in Criminal Case No. 06944.1awp++i1 Even before the indictment for rebellion was filed before the RTC
Makati, petitioners Ocampo, Echanis and Ladlad had already filed a petition

before this Court to seek the nullification of the Orders of the DOJ denying their
motion for the inhibition of the members of the prosecution panel due to lack of
impartiality and independence.130 When the indictment was filed, petitioners
Ocampo, Echanis and Ladlad filed supplemental petitions to enjoin the
prosecution of Criminal Case No. 06-944.131We eventually ordered the dismissal
of the rebellion case. It is clear then that a first jeopardy never had a chance to
attach.
Petitioner Ocampo shall remain on provisional liberty under the P100,000 cash
bond posted before the Office of the Clerk of Court. He shall remain on
provisional liberty until the termination of the proceedings before the RTC
Manila.1wphi1
The OSG has given its conformity to the provisional liberty of petitioners Echanis,
Baylosis and Ladlad in view of the ongoing peace negotiations. Their provisional
release from detention under the cash bond of P100,000 each shall continue
under the condition that their temporary release shall be limited to the period of
their actual participation as CPP-NDF consultants in the peace negotiations with
the government or until the termination of the proceedings before the RTC
Manila, whichever is sooner. It shall be the duty of the government to inform this
Court the moment that peace negotiations are concluded.
WHEREFORE, the instant consolidated petitions are DISMISSED. The RTC of
Manila, Branch 32, is hereby ORDERED to proceed with dispatch with the
hearing of Criminal Case No. 08-262163. Petitioner Saturnino C. Ocampo shall
remain on temporary liberty under the same bail granted by this Court until the
termination of the proceedings before the RTC Manila. Petitioners Randall B.
Echanis, Rafael G. Baylosis and Vicente P. Ladlad shall remain on temporary
liberty under the same bail granted by this Court until their actual participation
as CPP-NDF consultants in the peace negotiations with the government are
concluded or terminated, or until the termination of the proceedings before the
RTC Manila, whichever is sooner.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 143591

May 5, 2010

TEODORO C. BORLONGAN, JR., CORAZON M. BEJASA, ARTURO E.

MANUEL, JR., ERIC L. LEE, P. SIERVO H. DIZON, BENJAMIN DE
LEON, DELFIN C. GONZALES, JR., and BEN YU LIM, JR., Petitioners,
vs.
MAGDALENO M. PEA and HON. MANUEL Q. LIMSIACO, JR., as
Judge Designate of the Municipal Trial Court in Cities, Bago
City, Respondents.
DECISION
PEREZ, J.:
The pivotal issue in this case is whether or not the Court of Appeals, in its
Decision1 dated 20 June 2000 in CA-G.R. SP No. 49666, is correct when it
dismissed the petition for certiorari filed by petitioners Teodoro C. Borlongan,
Jr., Corazon M. Bejasa, Arturo E. Manuel, Jr., Benjamin de Leon, P. Siervo H.
Dizon, Delfin C. Gonzales, Jr., Eric L. Lee and Ben Yu Lim, Jr., and ruled that the
Municipal Trial Court in Cities (MTCC), Bago City, did not gravely abuse its
discretion in denying the motion for reinvestigation and recall of the warrants of
arrest in Criminal Case Nos. 6683, 6684, 6685, and 6686.
The factual antecedents of the case are as follows:
Respondent Atty. Magdaleno M. Pea (Atty. Pea) instituted a civil case for
recovery of agents compensation and expenses, damages, and attorneys
fees2 against Urban Bank and herein petitioners, before the Regional Trial Court
(RTC) of Negros Occidental, Bago City. The case was raffled to Branch 62 and
was docketed as Civil Case No. 754. Atty. Pea anchored his claim for
compensation on the Contract of Agency3 allegedly entered into with the
petitioners, wherein the former undertook to perform such acts necessary to
prevent any intruder and squatter from unlawfully occupying Urban Banks
property located along Roxas Boulevard, Pasay City. Petitioners filed a Motion to
Dismiss4 arguing that they never appointed the respondent as agent or counsel.
Attached to the motion were the following documents: 1) a Letter5 dated 19
December 1994 signed by Herman Ponce and Julie Abad on behalf of Isabela
Sugar Company, Inc. (ISCI), the original owner of the subject property; 2) an
unsigned Letter6 dated 7 December 1994 addressed to Corazon Bejasa from
Marilyn G. Ong; 3) a Letter7 dated 9 December 1994 addressed to Teodoro
Borlongan, Jr. and signed by Marilyn G. Ong; and 4) a Memorandum8 dated 20

November 1994 from Enrique Montilla III. Said documents were presented in an
attempt to show that the respondent was appointed as agent by ISCI and not by
Urban Bank or by the petitioners.
In view of the introduction of the above-mentioned documents, Atty. Pea filed
his Complaint-Affidavit9 with the Office of the City Prosecutor, Bago City.10 He
claimed that said documents were falsified because the alleged signatories did not
actually affix their signatures, and the signatories were neither stockholders nor
officers and employees of ISCI.11 Worse, petitioners introduced said documents
as evidence before the RTC knowing that they were falsified.
In a Resolution12 dated 24 September 1998, the City Prosecutor found probable
cause for the indictment of petitioners for four (4) counts of the crime of
Introducing Falsified Documents, penalized by the second paragraph of Article
172 of the Revised Penal Code. The City Prosecutor concluded that the documents
were falsified because the alleged signatories untruthfully stated that ISCI was
the principal of the respondent; that petitioners knew that the documents were
falsified considering that the signatories were mere dummies; and that the
documents formed part of the record of Civil Case No. 754 where they were used
by petitioners as evidence in support of their motion to dismiss, and then
adopted in their answer and in their Pre-Trial Brief.13 Subsequently, the
corresponding Informations14 were filed with the MTCC, Bago City. The cases
were docketed as Criminal Case Nos. 6683, 6684, 6685, and 6686. Thereafter,
Judge Primitivo Blanca issued the warrants15 for the arrest of the petitioners.
On 1 October 1998, petitioners filed an Omnibus Motion to Quash, Recall
Warrants of Arrest and/or For Reinvestigation.16 Petitioners insisted that they
were denied due process because of the non-observance of the proper procedure
on preliminary investigation prescribed in the Rules of Court. Specifically, they
claimed that they were not afforded the right to submit their counter-affidavit.
Then they argued that since no such counter-affidavit and supporting documents
were submitted by the petitioners, the trial judge merely relied on the complaintaffidavit and attachments of the respondent in issuing the warrants of arrest, also
in contravention with the Rules of Court. Petitioners further prayed that the
information be quashed for lack of probable cause. Moreover, one of the accused,
i.e., Ben Lim, Jr., is not even a director of Urban Bank, contrary to what
complainant stated. Lastly, petitioners posited that the criminal cases should
have been suspended on the ground that the issue being threshed out in the civil
case is a prejudicial question.
In an Order17 dated 13 November 1998, the MTCC denied the omnibus motion
primarily on the ground that preliminary investigation was not available in the
instant case which fell within the jurisdiction of the first-level court. The court,
likewise, upheld the validity of the warrant of arrest, saying that it was issued in
accordance with the Rules of Court. Besides, the court added, petitioners could
no longer question the validity of the warrant since they already posted bail. The
court also believed that the issue involved in the civil case was not a prejudicial

question, and, thus, denied the prayer for suspension of the criminal proceedings.
Lastly, the court was convinced that the Informations contained all the facts
necessary to constitute an offense.
Petitioners immediately instituted a special civil action for Certiorari and
Prohibition with Prayer for Writ of Preliminary Injunction and Temporary
Restraining Order (TRO) before the Court of Appeals, ascribing grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the MTCC in
issuing and not recalling the warrants of arrest, reiterating the arguments in their
omnibus motion.18 They, likewise, questioned the courts conclusion that by
posting bail, petitioners already waived their right to assail the validity of the
warrants of arrest.
On 20 June 2000, the Court of Appeals dismissed the petition.19 Thus,
petitioners filed the instant petition for review on certiorari under Rule 45 of the
Rules of Court, raising the following issues:
A.
Where the offense charged in a criminal complaint is not cognizable by the
Regional Trial Court and not covered by the Rule on Summary Procedure, is the
finding of probable cause required for the filing of an Information in court?
If the allegations in the complaint-affidavit do not establish probable cause,
should not the investigating prosecutor dismiss the complaint, or at the very
least, require the respondent to submit his counter-affidavit?
B.
Can a complaint-affidavit containing matters which are not within the personal
knowledge of the complainant be sufficient basis for the finding of probable
cause?
C.
Where there is offense charged in a criminal complaint is not cognizable by the
Regional Trial Court and not covered by the Rule on Summary Procedure, and
the record of the preliminary investigation does not show the existence of
probable cause, should not the judge refuse to issue a warrant of arrest and
dismiss the criminal case, or at the very least, require the accused to submit his
counter-affidavit in order to aid the judge in determining the existence of
probable cause?
D.
Can a criminal prosecution be restrained?

E.
Can this Honorable Court itself determine the existence of probable cause?20
On the other hand, respondent contends that the issues raised by the petitioners
had already become moot and academic when the latter posted bail and were
already arraigned.
On 2 August 2000, this Court issued a TRO21 enjoining the judge of the MTCC
from proceeding in any manner with Criminal Case Nos. 6683 to 6686, effective
during the entire period that the case is pending before, or until further orders of,
this Court.
We will first discuss the issue of mootness.
The issues raised by the petitioners have not been mooted by the fact that they
had posted bail and were already arraigned.
It appears from the records that upon the issuance of the warrant of arrest,
petitioners immediately posted bail as they wanted to avoid embarrassment,
being then the officers of Urban Bank. On the scheduled date for the
arraignment, despite the petitioners refusal to enter a plea, the court a quo
entered a plea of "Not Guilty" for them.
The erstwhile ruling of this Court was that posting of bail constitutes a waiver of
any irregularity in the issuance of a warrant of arrest, that has already been
superseded by Section 26, Rule 114 of the Revised Rule of Criminal Procedure.
The principle that the accused is precluded from questioning the legality of the
arrest after arraignment is true only if he voluntarily enters his plea and
participates during trial, without previously invoking his objections thereto.22
As held in Okabe v. Hon. Gutierrez:23
It bears stressing that Section 26, Rule 114 of the Revised Rules on Criminal
Procedure is a new one, intended to modify previous rulings of this Court that an
application for bail or the admission to bail by the accused shall be considered as
a waiver of his right to assail the warrant issued for his arrest on the legalities or
irregularities thereon. The new rule has reverted to the ruling of this Court
in People v. Red. The new rule is curative in nature because precisely, it was
designed to supply defects and curb evils in procedural rules. Hence, the rules
governing curative statutes are applicable. Curative statutes are by their essence
retroactive in application. Besides, procedural rules as a general rule operate
retroactively, even without express provisions to that effect, to cases pending at
the time of their effectivity, in other words to actions yet undetermined at the
time of their effectivity. Before the appellate court rendered its decision on
January 31, 2001, the Revised Rules on Criminal Procedure was already in effect.
It behoved the appellate court to have applied the same in resolving the

petitioners petition for

reconsideration.1avvphi1

certiorari

and

her

motion

for

partial

Moreover, considering the conduct of the petitioner after posting her personal
bail bond, it cannot be argued that she waived her right to question the finding of
probable cause and to assail the warrant of arrest issued against her by the
respondent judge. There must be clear and convincing proof that the petitioner
had an actual intention to relinquish her right to question the existence of
probable cause. When the only proof of intention rests on what a party does, his
act should be so manifestly consistent with, and indicative of, an intent to
voluntarily and unequivocally relinquish the particular right that no other
explanation of his conduct is possible. x x x.
Herein petitioners filed the Omnibus Motion to Quash, Recall Warrants of Arrest
and/or For Reinvestigation on the same day that they posted bail. Their bail
bonds likewise expressly contained a stipulation that they were not waiving their
right to question the validity of their arrest.24 On the date of their arraignment,
petitioners refused to enter their plea due to the fact that the issue on the legality
of their arrest is still pending with the Court. Thus, when the court a quo entered
a plea of not guilty for them, there was no valid waiver of their right to preclude
them from raising the same with the Court of Appeals or this Court. The posting
of bail bond was a matter of imperative necessity to avert their incarceration; it
should not be deemed as a waiver of their right to assail their arrest. The ruling to
which we have returned in People v. Red25 stated:
x x x The present defendants were arrested towards the end of January, 1929, on
the Island and Province of Marinduque by order of the judge of the Court of First
Instance of Lucena, Tayabas, at a time when there were no court sessions being
held in Marinduque. In view of these circumstances and the number of the
accused, it may properly be held that the furnishing of the bond was prompted by
the sheer necessity of not remaining in detention, and in no way implied their
waiver of any right, such as the summary examination of the case before their
detention. That they had no intention of waiving this right is clear from their
motion of January 23, 1929, the same day on which they furnished a bond, and
the fact that they renewed this petition on February 23, 1929, praying for the stay
of their arrest for lack of the summary examination; the first motion being denied
by the court on January 24, 1929 (G.R. No. 33708, page 8), and the second
remaining undecided, but with an order to have it presented in Boac,
Marinduque.
Therefore, the defendants herein cannot be said to have waived the right granted
to them by section 13, General Order No. 58, as amended by Act No. 3042.
The rest of the issues raised by the petitioners may be grouped into two, which
are: (1) the procedural aspect, i.e., whether the prosecution and the court a quo
properly observed the required procedure in the instant case, and, (2) the

substantive aspect, which is whether there was probable cause to pursue the
criminal cases to trial.
The procedural aspect:
Petitioners contend that they were denied due process as they were unable to
submit their counter-affidavits and were not accorded the right to a preliminary
investigation. Considering that the complaint of Atty. Pea was filed in
September 1998, the rule then applicable was the 1985 Rules of Criminal
Procedure.
The provisions of the 1985 Rules of Criminal Procedure relevant to the issue are
Sections 1, 3(a) and 9(a) of Rule 112, to wit:
Section 1. Definition. Preliminary investigation is an inquiry or proceeding for the
purpose of determining whether there is sufficient ground to engender a well
founded belief that a crime cognizable by the Regional Trial Court has been
committed and that the respondent is probably guilty thereof, and should be held
for trial.
Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or
information for an offense cognizable by the Regional Trial Court shall be filed
without a preliminary investigation having been first conducted in the following
manner:
(a) The complaint shall state the known address of the respondent and be
accompanied by affidavits of the complainant and his witnesses as well as
other supporting documents, in such number of copies as there are
respondents, plus two (2) copies for the official file. The said affidavits
shall be sworn to before any fiscal, state prosecutor or government official
authorized to administer oath, or, in their absence or unavailability, a
notary public, who must certify that he personally examined the affiants
and that he is satisfied that they voluntarily executed and understood their
affidavits.
Sec. 9. Cases not falling under the original jurisdiction of the Regional Trial
Courts nor covered by the Rule on Summary Procedure.
(a) Where filed with the fiscal. If the complaint is filed directly with the
fiscal or state prosecutor, the procedure outlined in Section 3(a) of this
Rule shall be observed. The fiscal shall take appropriate action based on
the affidavits and other supporting documents submitted by the
complainant. (underscoring supplied)
The crime to which petitioners were charged was defined and penalized under
second paragraph of Article 172 in relation to Article 171 of the Revised Penal
Code.

Art. 172. Falsification by private individual and use of falsified documents.

The penalty of prision correccional in its medium and maximum periods and a
fine of not more than P5,000 pesos shall be imposed upon:
1. Any private individual who shall commit any of the falsifications
enumerated in the next preceding article in any public or official document
or letter of exchange or any other kind of commercial document; and
2. Any person who, to the damage of a third party, or with the intent to
cause such damage, shall in any private document commit any of the acts
of falsification enumerated in the next preceding article.
Any person who shall knowingly introduce in evidence in any judicial proceeding
or to the damage of another or who, with the intent to cause such damage, shall
use any of the false documents embraced in the next preceding article or in any of
the foregoing subdivisions of this article, shall be punished by the penalty next
lower in degree.
Prision correccional in its medium and maximum periods translates to
imprisonment of 2 years, 4 months and 1 day.26 The next lower in degree to
prision correccional is arresto mayor in its maximum period to prision
correccional in its minimum period which translates to 4 months and 1 day to 2
years and 4 months27 of imprisonment. Since the crime committed is not covered
by the Rules of Summary Procedure,28 the case falls within the exclusive
jurisdiction of the first level courts but applying the ordinary rules. In such
instance, preliminary investigation as defined in Section 1, Rule 112 of the 1985
Rules of Criminal Procedure is not applicable since such section covers only
crimes cognizable by the RTC. That which is stated in Section 9(a) is the
applicable rule.
Under this Rule, while probable cause should first be determined before an
information may be filed in court, the prosecutor is not mandated to require the
respondent to submit his counter-affidavits to oppose the complaint. In the
determination of probable cause, the prosecutor may solely rely on the complaint,
affidavits and other supporting documents submitted by the complainant. If he
does not find probable cause, the prosecutor may dismiss outright the complaint
or if he finds probable cause or sufficient reason to proceed with the case, he shall
issue a resolution and file the corresponding information.
The complaint of respondent, verbatim, is as follows:
COMPLAINT AFFIDAVIT
I, MAGDALENO M. PEA, Filipino, of legal age, with address at Brgy. Ubay,
Pulupandan, Negros Occidental, after having been sworn in accordance with law
hereby depose and state:

1. I am the Plaintiff in Civil Case No. 754 pending with the Regional Trial Court of
Bago City entitled "Atty. Magdaleno M. Pea v. Urban Bank, et al" Impleaded
therein as defendants of the board of the bank, namely, Teodoro Borlongan,
Delfin Gonzales, Jr., Benjamin De Leon, P. Siervo Dizon, Eric Lee, Ben Lim Jr.,
Corazon Bejasa and Arturo Manuel.(underlining ours)
2. I filed the said case to collect my fees as agent of Urban Bank, Inc.(hereinafter
referred to as the "bank") in ridding a certain parcel of land in Pasay City of
squatters and intruders. A certified true copy of the Complaint in the said case is
hereto attached as Annex "A".
3. In the Motion to Dismiss dated 12 March 1996 (a certified true copy of which is
attached as Annex "B"), Answer dated 28 October 1996 (Annex "C"), and PreTrial Brief dated 28 January 1997 (Annex "D") filed by the bank and the
respondent members of the board, the said respondents used as evidence the
following documents:
a. Letter dated 19 December 1994 supposedly signed by a certain Herman Ponce
and Julie Abad for Isabela Sugar Company (ISC) (a copy of which is attached as
Annex "E"), which states:
December
Urban
Urban
Metro Manila

19,
Avenue,

1994
Bank
Makati

Gentlemen:
This has reference to your property located among Roxas Boulevard, Pasay City
which you purchased from Isabela Sugar Company under a Deed of Absolute Sale
executed on December 1, 1994.
In line with our warranties as the Seller of the said property and our undertaking
to deliver to you the full and actual possession and control of said property, free
from tenants, occupants or squatters and from any obstruction or impediment to
the free use and occupancy of the property and to prevent the former tenants or
occupants from entering or returning to the premises. In view of the transfer of
ownership of the property to Urban Bank, it may be necessary for Urban Bank to
appoint Atty. Pea likewise as its authorized representative for purposes of
holding/maintaining continued possession of the said property and to represent
Urban Bank in any court action that may be instituted for the abovementioned
purposes.
It is understood that any attorneys fees, cost of litigation and any other charges
or expenses that may be incurred relative to the exercise by Atty. Pea of his
abovementioned duties shall be for the account of Isabela Sugar Company and

any loss or damage that may be incurred to third parties shall be answerable by
Isabela Sugar Company.
Very truly yours,
Isabela Sugar Company
By:
HERMAN
JULIE ABAD

PONCE

b. Memorandum dated 7 December 1994 supposedly executed by a certain

Marilyn Ong on behalf of ISC, a copy of which is hereto attached as annex "F",
which states:
December 7, 1994
To: ATTY. CORA BEJASA
From: MARILYN G. ONG
RE: ISABELA SUGAR CO., INC.
Atty. Magdaleno M. Pea, who has been assigned by Isabela Sugar Company inc.
to take charge of inspecting the tenants would like to request an authority similar
to this from the Bank to new owners. Can you please issue something like this
today as he (unreadable) this.
b. Letter dated 9 December 1994 supposedly executed by the same Marilyn Ong,
a copy of which is hereto attached as Annex "G", which states:
December 9, 1994
Atty.
URBAN
BANK
MAKATI, METRO MANILA

Ted
OF

THE

Borlongan
PHILIPPINES

Attention: Mr. Ted Borlongan

Dear Mr. Borlongan
I would like to request for an authority from Urban Bank per attached
immediately as the tenants are questioning authority of the people who are
helping us to take possession of the property.
Marilyn Ong

c. Memorandum dated 20 November 1994, copy of which is attached as annex

"H", which states:
MEMORANDUM
To:
Director
From:
President

Atty.

Magadaleno

Enrique

C.

M.
Montilla

Pea
III

Date: 20 November 1994

You are hereby directed to recover and take possession of the property of the
corporation situated at Roxas Boulevard covered by TCT No. 5382 of the Registry
of Deeds for Pasay City, immediately upon the expiration of the contract of lease
over the said property on 29 November 1994. For this purpose, you are
authorized to engage the services of security guards to protect the property
against intruders. You may also engage the services of a lawyer in case there is a
need to go to court to protect the said property of the corporation. In addition,
you may take whatever steps or measures are necessary to ensure our continued
possession of the property.
ENRIQUE
President

C.

MONTILLA

III

4. The respondent member of the board of the bank used and introduced the
aforestated documents as evidence in the civil case knowing that the same are
falsified. They used thae said documents to justify their refusal to pay my agents
fees, to my damage and prejudice.
5. The 19 December 1994 letter (Annex E") is a falsified document, in that the
person who supposedly executed the letter on behalf of ISC, a certain Herman
Ponce and Julie Abad did not actually affix their signatures on the document. The
execution of the letter was merely simulated by making it appear that Ponce and
Abad executed the letter on behalf of ISC when they did not in fact do so.
6. No persons by the name of Herman Ponce and Julie Abad were ever
stockholders, officers, employees or representatives of ISC. In the letter, Herman
Ponce was represented to be the President of ISC and Julie Abad, the Corporate
Secretary. However, as of 19 December 1994, the real President of plaintiff was
Enrique Montilla, III and Cristina Montilla was the Corporate Secretary. A copy
of the Minutes of the Regular Meeting of ISC for the year 1994, during which
Montilla, et al. Were elected is hereto attached as Annex "I". On the otherhand, a
list of the stockholders of ISC on or about the time of the transaction is attached
as Annex "J".

7. The same holds true with respect to the Memorandum dated 7 December 1994
and athe letter dated 9 December 1994 allegedly written by a ceratin Marilyn
Ong. Nobody by the said name was ever a stockholder of ISC.
8. Lastly, with respect to the supposed Memorandum issued by Enrique Montilla,
III his signature thereon was merely forged by respondents. Enrique Montilla III,
did not affix his signature on any such document.
9. I am executing this affidavit for the purpose of charging Teodoro C. Borlongan,
Corazon M. Bejasa and Arturo E. Manuel, Delfin C. Gonzales Jr., Benjamin L. De
Leon, P. Siervo H. Dizon and Eric Lee, with the crime of use of falsified
documents under Artilce 172, paragraph 2, of the Revised Penal
Code.(underlining ours)
10. I am likewise executing this affidavit for whatever legal purpose it may serve.
FURTHER AFFIANT SAYETH NAUGHT.
Sgd. MAGDALENO M. PEA
It is evident that in the affidavit-complaint, specifically in paragraph 1,
respondent merely introduced and identified "the board of the bank, namely,
Teodoro Borlongan, Jr., Delfin Gonzales, Jr., Benjamin De Leon, P. Siervo Dizon,
Eric Lee, Ben Lim, Jr., Corazon Bejasa and Arturo Manuel, Sr." However, in the
accusatory portion of the complaint which is paragraph number 9, Mr. Ben Lim,
Jr. was not included among those charged with the crime of use of falsified
documents under Article 172, paragraph 2, of the Revised Penal Code. The
omission indicates that respondent did not intend to criminally implicate Mr.
Ben Lim, Jr., even as he was acknowledged to be a member of the board. And
there was no explanation in the Resolution and Information by the City
Prosecutor why Mr. Ben Lim, Jr. was included. Moreover, as can be gleaned from
the body of the complaint and the specific averments therein, Mr. Ben Lim, Jr.
was never mentioned.
The City Prosecutor should have cautiously reviewed the complaint to determine
whether there were inconsistencies which ought to have been brought to the
attention of the respondent or, on his own, considered for due evaluation. It is a
big mistake to bring a man to trial for a crime he did not commit.
Prosecutors are endowed with ample powers in order that they may properly
fulfill their assigned role in the administration of justice. It should be realized,
however, that when a man is hailed to court on a criminal charge, it brings in its
wake problems not only for the accused but for his family as well. Therefore, it
behooves a prosecutor to weigh the evidence carefully and to deliberate thereon
to determine the existence of a prima facie case before filing the information in
court. Anything less would be a dereliction of duty.29

Atty. Pea, in his Second Manifestation30 dated 16 June 1999, averred that
petitioners, including Mr. Ben Lim, Jr., were already estopped from raising the
fact that Mr. Ben Lim, Jr. was not a member of the board of directors of Urban
Bank, as the latter participated and appeared through counsel in Civil Case No.
754 without raising any opposition. However, this does not detract from the fact
that the City Prosecutor, as previously discussed, did not carefully scrutinize the
complaint of Atty. Pea, which did not charge Mr. Ben Lim, Jr. of any crime.
What tainted the procedure further was that the Judge issued a warrant for the
arrest of the petitioners, including, Mr. Ben Lim, Jr. despite the filing of the
Omnibus Motion to Quash, Recall Warrants of Arrest and/or For Reinvestigation
raising among others the issue that Mr. Ben Lim, Jr., was not even a member of
the board of directors. With the filing of the motion, the judge is put on alert that
an innocent person may have been included in the complaint. In the
Order31 dated 13 November 1998, in denying the motion to quash, Judge
Primitivo Blanca ruled that:
Courts in resolving a motion to quash cannot consider facts contrary to those
alleged in the information or which do not appear on the face of the information
because said motion is hypothethical admission of the facts alleged in the
information x x x. (citations omitted.)
We cannot accept as mere oversight the mistake of respondent judge since it was
at the expense of liberty. This cannot be condoned.
In the issuance of a warrant of arrest, the mandate of the Constitution is for the
judge to personally determine the existence of probable cause:
Section 2, Article III of the Constitution provides:
Section 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.
Corollary thereto, Section 9(b) of the 1985 Rules of Criminal Procedure provides:
Sec. 9. Cases not falling under the original jurisdiction of the Regional Trial
Courts nor covered by the Rule on Summary Procedure.
(a) x x x.
(b) Where filed directly with the Municipal Trial Court. If the complaint or
information is filed directly with the Municipal Trial Court, the procedure

provided for in Section 3(a) of this Rule shall likewise be observed. If the judge
finds no sufficient ground to hold the respondent for trial, he shall dismiss the
complaint or information. Otherwise, he shall issue a warrant of arrest after
personally examining in writing and under oath the complainant and his
witnesses in the form of searching questions and answers.
Enshrined in our Constitution is the rule that "[n]o x x x 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 x x x the persons x x x to be
seized."32 Interpreting the words "personal determination," we said in Soliven v.
Makasiar33 that it does not thereby mean that judges are obliged to conduct the
personal examination of the complainant and his witnesses themselves. To
require thus would be to unduly laden them with preliminary examinations and
investigations of criminal complaints instead of concentrating on hearing and
deciding cases filed before them. Rather, what is emphasized merely is the
exclusive and personal responsibility of the issuing judge to satisfy himself as to
the existence of probable cause. To this end, he may: (a) personally evaluate the
report and the supporting documents submitted by the prosecutor regarding the
existence of probable cause and, on the basis thereof, issue a warrant of arrest; or
(b) if on the basis thereof he finds no probable cause, disregard the prosecutor's
report and require the submission of supporting affidavits of witnesses to aid him
in determining its existence. What he is never allowed to do is to follow blindly
the prosecutor's bare certification as to the existence of probable cause. Much
more is required by the constitutional provision. Judges have to go over the
report, the affidavits, the transcript of stenographic notes if any, and other
documents supporting the prosecutor's certification. Although the extent of the
judge's personal examination depends on the circumstances of each case, to be
sure, he cannot just rely on the bare certification alone but must go beyond it.
This is because the warrant of arrest issues not on the strength of the certification
standing alone but because of the records which sustain it.34 He should even call
for the complainant and the witnesses to answer the court's probing questions
when the circumstances warrant.35
An arrest without a probable cause is an unreasonable seizure of a person, and
violates the privacy of persons which ought not to be intruded by the State.36
Measured against the constitutional mandate and established rulings, there was
here a clear abdication of the judicial function and a clear indication that the
judge blindly followed the certification of a city prosecutor as to the existence of
probable cause for the issuance of a warrant of arrest with respect to all of the
petitioners. The careless inclusion of Mr. Ben Lim, Jr., in the warrant of arrest
gives flesh to the bone of contention of petitioners that the instant case is a
matter of persecution rather than prosecution.37 On this ground, this Court may
enjoin the criminal cases against petitioners. As a general rule, criminal
prosecutions cannot be enjoined. However, there are recognized exceptions
which, as summarized in Brocka v. Enrile,38 are:

a. To afford adequate protection to the constitutional rights of the

accused;39
b. When necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions;40
c. When there is a prejudicial question which is sub judice;41
d. When the acts of the officer are without or in excess of authority;42
e. Where the prosecution is under an invalid law, ordinance or
regulation;43
f. When double jeopardy is clearly apparent;44
g. Where the court had no jurisdiction over the offense;45
h. Where it is a case of persecution rather than prosecution;46
i. Where the charges are manifestly false and motivated by the lust for
vengeance;47 and
j. When there is clearly no prima facie case against the accused and a
motion to quash on that ground has been denied.48
The substantive aspect:
Petitioners were charged with violation of par. 2, Article 172 of the Revised Penal
Code or Introduction of Falsified Document in a judicial proceeding. The
elements of the offense are as follows:
1. That the offender knew that a document was falsified by another person.
2. That the false document is embraced in Article 171 or in any
subdivisions Nos. 1 or 2 of Article 172.
3. That he introduced said document in evidence in any judicial
proceeding.49
The falsity of the document and the defendants knowledge of its falsity are
essential elements of the offense. The Office of the City Prosecutor filed the
Informations against the petitioners on the basis of the Complaint-Affidavit of
respondent Atty. Pea, attached to which were the documents contained in the
Motion to Dismiss filed by the petitioners in Civil Case No. 754. Also included as
attachments to the complaint were the Answers, Pre-Trial Brief, the alleged
falsified documents, copy of the regular meetings of ISCI during the election of
the Board of Directors and the list of ISCI Stockholders.50 Based on these

documents and the complaint-affidavit of Atty. Pea, the City Prosecutor

concluded that probable cause for the prosecution of the charges existed. On the
strength of the same documents, the trial court issued the warrants of arrest.
This Court, however, cannot find these documents sufficient to support the
existence of probable cause.
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 restoring 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.51
As enunciated in Baltazar v. People,52 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.
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.53
We do not see how it can be concluded that the documents mentioned by
respondent in his complaint-affidavit were falsified. In his complaint, Atty. Pea
stated that Herman Ponce, Julie Abad and Marilyn Ong, the alleged signatories of
the questioned letters, did not actually affix their signatures therein; and that
they were not actually officers or stockholders of ISCI.54 He further claimed that
Enrique Montillas signature appearing in another memorandum addressed to
respondent was forged.55 These averments are mere assertions which are
insufficient to warrant the filing of the complaint or worse the issuance of
warrants of arrest. These averments cannot be considered as proceeding from the
personal knowledge of herein respondent who failed to, basically, allege that he
was present at the time of the execution of the documents. Neither was there any
mention in the complaint-affidavit that herein respondent was familiar with the
signatures of the mentioned signatories to be able to conclude that they were
forged. What Atty. Pea actually stated were but sweeping assertions that the
signatories are mere dummies of ISCI and that they are not in fact officers,
stockholders or representatives of the corporation. Again, there is no indication
that the assertion was based on the personal knowledge of the affiant.
The reason for the requirement that affidavits must be based on personal
knowledge is to guard against hearsay evidence. A witness, therefore, may not
testify as what he merely learned from others either because he was told or read

or heard the same. Such testimony is considered hearsay and may not be received
as proof of the truth of what he has learned.56 Hearsay is not limited to oral
testimony or statements; the general rule that excludes hearsay as evidence
applies to written, as well as oral statements.57
The requirement of personal knowledge should have been strictly applied
considering that herein petitioners were not given the opportunity to rebut the
complainants allegation through counter-affidavits.
Quite noticeable is the fact that in the letter dated 19 December 1994 of Herman
Ponce and Julie Abad, neither of the two made the representation that they were
the president or secretary of ISCI. It was only Atty. Pea who asserted that the
two made such representation. He alleged that Marilyn Ong was never a
stockholder of ISCI but he did not present the stock and transfer book of ISCI.
And, there was neither allegation nor proof that Marilyn Ong was not connected
to ISCI in any other way.lawphil Moreover, even if Marilyn Ong was not a
stockholder of ISCI, such would not prove that the documents she signed were
falsified.
The Court may not be compelled to pass upon the correctness of the exercise of
the public prosecutors function without any showing of grave abuse of discretion
or manifest error in his findings.58 Considering, however, that the prosecution
and the court a quo committed manifest errors in their findings of probable
cause, this Court therefore annuls their findings.
Our pronouncement in Jimenez v. Jimenez59 as reiterated in Baltazar v. People is
apropos:
It is x x x imperative upon the fiscal or the judge as the case may be, to relieve the
accused from the pain of going through a trial once it is ascertained that the
evidence is insufficient to sustain a prima facie case or that no probable cause
exists to form a sufficient belief as to the guilt of the accused. Although there is no
general formula or fixed rule for the determination of probable cause since the
same must be decided in the light of the conditions obtaining in given situations
and its existence depends to a large degree upon the finding or opinion of the
judge conducting the examination, such a finding should not disregard the facts
before the judge nor run counter to the clear dictates of reasons. The judge or
fiscal, therefore, should not go on with the prosecution in the hope that some
credible evidence might later turn up during trial for this would be a flagrant
violation of a basic right which the courts are created to uphold. It bears
repeating that the judiciary lives up to its mission by visualizing and not
denigrating constitutional rights. So it has been before. It should continue to be
so.
On the foregoing discussion, we find that the Court of Appeals erred in affirming
the findings of the prosecutor as well as the court a quo as to the existence of

probable cause. The criminal complaint against the petitioners should be

dismissed.
WHEREFORE, the petition is hereby GRANTED. The Decision of the Court of
Appeals
dated
20
June
2000,
in
CA-G.R.
SP
No.
49666,
is REVERSED and SET ASIDE. The Temporary Restraining Order dated 2
August 2000 is hereby made permanent. Accordingly, the Municipal Trial Court
in
Cities,
Negros
Occidental,
Bago
City,
is
herebyDIRECTED to DISMISS Criminal Case Nos. 6683, 6684, 6685 and
6686.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
A.M.
No.
MTJ-06-1658
[Formerly OCA IPI No. 01-1014-MTJ]

July

3,

2007

MIGUEL
E.
COLORADO, complainant,
vs.
JUDGE RICARDO M. AGAPITO Municipal Circuit Trial Court, Laur,
Nueva Ecija, respondent.
RESOLUTION
AUSTRIA-MARTINEZ, J.:
Before us is a sworn letter-complaint1 dated January 31, 2001 of Miguel E.
Colorado (complainant) charging Judge Ricardo M. Agapito (respondent),
Municipal Circuit Trial Court (MCTC), Laur, Nueva Ecija, with Gross Ignorance
of the Law and Grave Abuse of Authority relative to Criminal Case Nos. 3461-G
and 3462-G, entitled "People v. Miguel Colorado," with Grave Slander and Grave
Threats.
Complainant alleges: He is the accused in the aforementioned criminal cases. The
cases were directly filed with the court without first passing the Office of
the Barangay Chairman, although he and private complainants are permanent
residents of Barangay Bagong Sikat, Gabaldon, Nueva Ecija. Respondent
ignored the glaring deficiency in private complainants filing of the cases without
attaching the requisite certifications to file action from thebarangay. On the date
the two cases were filed, respondent immediately issued two warrants for his
arrest. He was arrested on a Friday and languished in the municipal jail for two
days and two nights. He posted bail and filed a motion to inhibit respondent from
hearing the case, but the same was not acted upon. He received an envelope from
the court with nothing inside and found out later that the same was supposed to
be a notice of hearing; thus, he was ordered arrested in view of his nonappearance in court.
On February 22, 2001, respondent compulsorily retired from the judiciary.
In a 1st Indorsement dated June 8, 2001, respondent was directed to file his
comment on the complaint. A 1st Tracer dated October 17, 2001 was sent to
respondent giving him a non-extendible period of five days to file his comment.
However, the said tracer was returned unserved due to respondents retirement
from the judiciary. Another Tracer dated July 30, 2002 was sent to respondent in

his residential address giving him a chance to file his comment, but none was
filed.
Acting on the complaint, the Court, in its Resolution of March 24, 2003, required
respondent to manifest whether he was willing to submit the administrative
matter against him for resolution without his comment. Respondent failed to
comply with the Court Resolution. Thus, in the Resolution of January 26, 2005,
the Court ordered respondent to show cause why he should not be disciplinarily
dealt with or held in contempt for failure to manifest and to comply with the
Resolution of March 24, 2003. Still, respondent failed to comply with the
Resolution of January 26, 2005. In the Resolution of August 24, 2005, the Court
imposed upon respondent a fine of P1,000.00 and deemed respondent to have
waived the filing of a comment on the complaint.
In the Agenda Report2 dated October 12, 2005, the Office of the Court
Administrator (OCA) found respondent guilty as charged and recommended that
he be fined in the amount of Twenty Thousand Pesos (P20,000.00) to be
deducted from his retirement benefits.
On November 8, 2005, respondent paid the fine of P1,000.00 imposed on him in
the Resolution of August 24, 2005 and submitted his Comment on the complaint.
In his Comment3 dated October 31, 2005, respondent denied the allegations
contained in the complaint reasoning that he acted in good faith and within the
scope of his duties. He further contends: Based on Administrative Circular No.
140-93, the crimes committed by the accused are not within
the Katarungan Pambarangay Law because the imposable penalty exceeds one
year. Both cases are within the original jurisdiction of the court and, finding a
probable cause against the accused, the court issued the warrant of arrest. There
is no law or circular issued by this Court that a court cannot issue a warrant of
arrest on Friday. If the accused was not able to post bail on time, it is not his fault
or of the court. The motion for inhibition filed by complainant must be set for
hearing. But in spite of several settings to hear the motion, complainant failed to
appear. In the hearing of both cases, complainant failed to appear in court; thus,
the assistant provincial prosecutor moved for the arrest of the complainant. At
the hearing of November 17, 2000 and January 5, 2001, complainant failed to
appear in court, and orders of arrest were issued against him, but said orders
were reconsidered by the court. In spite of all the orders of the court for the arrest
of complainant, none of the orders were implemented. Neither was the accused
arrested and detained in jail. And if the complainant received an envelope from
the MCTC of Laur without content, complainant should have immediately
informed the court of the said circumstance so that proper action may be done on
the employee in charge of the mailing of notices.
In the Resolution of March 29, 2006, the Court referred back the instant
administrative matter to the OCA for evaluation, report and recommendation.

In a letter4 dated November 21, 2005, respondent requested the Court that his
retirement benefits be released subject to the withholding of P20,000.00 pending
resolution of the present complaint.
In the Resolution5 of June 28, 2006, the Court granted the partial release of
respondent's compulsory retirement benefits and withheld therefrom the amount
of P20,000.00 to answer for whatever liability respondent may incur in the
present administrative case.
In the Agenda Report dated August 30, 2006, the OCA submitted its evaluation
and recommendation, to wit:
The charges against respondent judge are summarized as follows:
1. Gross Ignorance of the law for his failure to remand or dismiss
the case in view of the absence of the requisite certificate to file
action issued by the Barangay as a mandatory requirement of the
Katarungan Pambarangay Law and the Local Government Code.
2. Grave abuse of authority for the issuance of a warrant of arrest on
a Friday to ensure complainants incarceration for two days.
3. Grave abuse of authority and bias in continuing the hearing of
the cases and for failure to act on the motion for inhibition.
4. An intention on the part of respondent to prevent complainants
appearance in court by sending an envelope, with a supposed notice
of hearing but with nothing inside.
xxxx
Respondent judge argued that under Administrative Circular No. 14-93
dated August 3, 1993 issued by this Court as Guidelines for the
Implementation of the Barangay Conciliation Procedure, based on the
Local Government Code of 1991, R.A. 7160, which took effect on January 1,
1992, one of the exceptions to the coverage of the circular is "Offense[s] for
which the law prescribes a maximum penalty of imprisonment exceeding
one (1) year or a fine over five thousand pesos (P5,000.00)." Considering
that the offenses for which accused was charged have corresponding
penalties of more than one year there is no need for a certification to file
action from the Barangay.
There was likewise no grave abuse of discretion in the issuance of warrant
of arrest. The subject criminal cases were within the original jurisdiction of
the MTC and after finding probable cause against the accused, respondent
issued the questioned warrant of arrest. Respondent pointed out that there

is no law or circular issued by the Honorable Court prohibiting the

issuance of a warrant of arrest on Friday.
With regard to the charge of grave abuse of discretion relative to the
motion for inhibition, respondent submitted that there should be a
hearing on the motion before it could be acted upon. But in spite of the
several settings of said motion the complainant as accused failed to
appear.
Respondent contended that if it were true that complainant received an
envelope from the MCTC of Laur, Nueva Ecija, without any contents, he
should have immediately informed the court about it so that the proper
action could have been done.
Lastly, respondent invited the Courts attention to the fact that
complainant was also accused of Grave Slander by Darlito Urbano and
Violeta Urbano which case were docketed as Criminal Case No. 3648-G
and 3649-G, MCTC Laur-Gabaldon, Nueva Ecija. It is argued that this
shows the character of Miguel Colorado.
After careful evaluation of the record of the case, the undersigned finds
merit in the neglect of respondent judge to resolve the pending issue of the
motion for inhibition which was not acted upon up to the time of his
compulsory retirement from the service.
It should be noted that respondent never gave any valid justification for
the delay in the filing of his comment. It seems that he believed that the
mere payment of the fine obliterated the charge of contumacious refusal to
obey the order of this Court. Respondent's conduct cannot be left
unnoticed by the Court. Judges are the visible representations of law and
justice, from whom the people draw the will and inclination to obey the
law (Moroo v. Lomeda, 316 Phil. 103, July 14, 1995) "How can the
respondent judge expect others to respect the law when he himself cannot
obey orders as simple as the show-cause resolution?" {Longboan v. Hon.
Polig (A.M. No. R-704-RTJ, June 14, 1990, 186 SCRA 557) cited in the
case of Bonifacio Guintu v. Judge Aunario L. Lucero, A.M. No. MTJ-93794, August 23, 1996}.
In a catena of cases this Court has unhesitatingly imposed the penalty of
dismissal on those who have persistently failed to comply with orders
requiring them either to file comment or to show cause and comply.
Respondent's belated filing of his comment cannot cure or obliterate[d]
his shortcomings with this Court. The fact remains that he ignored the
lawful directive of the Court and in fact offered no valid justification or
excuse for it. This Court could have imposed the penalty of dismissal and
forfeiture of all of respondent's retirement benefit had it not been for this
Courts compassion in allowing him to retire with the mere retention

ofP20,000.00. Respondents comment should not have been received in

the first place as the same was already considered waived pursuant to the
Resolution of the Honorable Court dated 24 August 2005.
IN VIEW OF THE FOREGOING, the undersigned respectfully
recommends to the Honorable Court that:
1. Judge Ricardo M. Agapito, former judge of MCTC, Laur, Nueva
Ecija be found guilty of gross neglect for failure to act on the motion
for inhibition filed by accused-complainant and for his failure to
promptly comply with the lawful order of Court and not offering a
valid excuse therefor and should be FINED in the amount of
Twenty Thousand Pesos (P20,000); and
2. The withheld amount of Twenty Thousand Pesos (P20,000) shall
be considered the payment of the fine.6
We agree in toto with the findings and recommendations of the OCA.
First of all, we deem it necessary to determine the applicability of A.M. No. 0310-01-SC, a Resolution Prescribing Measures to Protect Members of the Judiciary
from Baseless and Unfounded Administrative Complaints, which took effect on
November 3, 2003.
Recognizing the proliferation of unfounded or malicious administrative or
criminal cases against members of the judiciary for purposes of harassment, we
issued said Resolution, which provides:
2. If the complaint is (a) filed within six months before the compulsory
retirement of a Justice or Judge; (b) for an alleged cause of action that
occurred at least a year before such filing; and (c) shown prima facie that
it is intended to harass the respondent, it must forthwith be recommended
for dismissal. If such is not the case, the Office of the Court Administrator
must require the respondent to file a comment within ten (10) days from
receipt of the complaint, and submit to the Court a report and
recommendation not later than thirty (30) days from receipt of the
comment. The Court shall act on the recommendation before the date of
compulsory retirement of the respondent, or if it is not possible to do so,
within six (6) months from such date without prejudice to the release of
the retirement benefits less such amount as the Court may order to be
withheld, taking into account the gravity of the cause of action alleged in
the complaint.
Thus, in order for an administrative complaint against a retiring judge or justice
to be dismissed outright, the following requisites must concur: (1) the complaint
must have been filed within six months from the compulsory retirement of the
judge or justice; (2) the cause of action must have occurred at least a year before

such filing; and (3) it is shown that the complaint was intended to harass the
respondent.
In the present case, the first two requisites are present. The sworn lettercomplaint was received by the Office of the Court Administrator on January 31,
2001. The respondent retired compulsorily from the service barely three weeks
after or on February 22, 2001; and the ground for disciplinary action alleged to
have been committed by the respondent occurred five months before the
respondents separation from the service.
As to the third requirement, although the first and second charges against
respondent are outrightly without merit as aptly found by the OCA, the complaint
that respondent failed to act on his motion for inhibition and intentionally
prevented complainant from appearing in a scheduled hearing was not prima
facie shown to be without merit; nor was the filing thereof shown to be intended
merely to harass the respondent.7 Thus, the OCA correctly proceeded with the
administrative case against respondent.
Moreover, the fact that a judge has retired or has otherwise been separated from
the service does not necessarily divest the Court of its jurisdiction to determine
the veracity of the allegations of the complaint, pursuant to its disciplinary
authority over members of the bench. As we held in Gallo v.
Cordero,8 citing Zarate v. Judge Romanillos:9]
The jurisdiction that was ours at the time of the filing of the administrative
complaint was not lost by the mere fact that the respondent had ceased in
office during the pendency of his case. The Court retains jurisdiction either
to pronounce the respondent public official innocent of the charges or
declare him guilty thereof. A contrary rule would be fraught with injustice
and pregnant with dreadful and dangerous implications... If innocent,
respondent public official merits vindication of his name and integrity as
he leaves the government which he has served well and faithfully; if guilty,
he deserves to receive the corresponding censure and a penalty proper and
imposable under the situation.
We now go to the four charges against respondent.
1. Gross Ignorance of the law for his failure to remand or dismiss the case
in view of the absence of the requisite certificate to file action issued by
the barangay as a mandatory requirement of the Katarungan
Pambarangay Law and the Local Government Code.
As we earlier stated, the Court finds that the OCA is correct in not finding
respondent administratively liable therefor. Complainant is charged with grave
slander, the maximum penalty for which is 2 years and 4 months under Article
358 of the Revised Penal Code. Thus, respondent is not guilty of gross ignorance
of the law in taking jurisdiction over said criminal case, considering that prior

recourse to barangay conciliation is not required where the law provides a

maximum penalty of imprisonment exceeding one year.
2. Grave abuse of authority for the issuance of a warrant of arrest on a
Friday to ensure complainants incarceration for two days.
Complainant faults respondent for having been arrested on a Friday, causing him
to languish in jail for two days and two nights. Respondent cannot be held
administratively liable for this particular matter.
Section 6, Rule 113 of the Revised Rules of Criminal Procedure provides that
an arrest may be made on any dayand at any time of the day or night.
It is of no moment that the warrant of arrest was issued by respondent on a
Friday, because it is clear from the foregoing that an arrest may be made on any
day regardless of what day the warrant of arrest was issued. Nowhere in the Rules
or in our jurisprudence can we find that a warrant of arrest issued on a Friday is
prohibited.
Granting that complainant was arrested on a Friday, he was not without recourse,
as he could have posted bail for his temporary liberty in view of Supreme Court
Circular No. 95-9610 dated December 5, 1996, providing for a skeletal force on a
Saturday from 8:00 a.m. to 1:00 p.m. primarily to act on petitions for bail and
other urgent matters. And on Saturday afternoons, Sundays and non-working
holidays, any judge may act on bailable offenses. Thus, we agree with the OCA
that respondent did not commit grave abuse of authority for issuing the warrant
of arrest on a Friday, the same not being prohibited by law.
3. Grave abuse of authority and bias in continuing the hearing of the
cases and for failure to act on the motion for inhibition.
While there is no evidence in support of the claim that respondent committed
grave abuse of authority and bias in continuing the hearing of cases, we find
respondent liable for failure to act upon complainants motion for inhibition.
As borne by the records, complainant filed his motion for respondent's inhibition
sometime in September 2000 but up to the time of respondents compulsory
retirement from the judiciary on February 22, 2001, the same remained unacted
upon. Verily, the undue delay of respondent by five months in resolving the
pending incident before his court erodes the peoples faith in the judiciary and
the same is tantamount to gross inefficiency. Respondents explanation that
despite the fact that the motion was set for hearing several times, complainant
repeatedly failed to appear thereat, is untenable. Respondent must know that he
may act motu proprio on the motion for inhibition without requiring the
attendance of complainant. A judge, in the exercise of his sound discretion, may
disqualify himself from sitting on a case for just or valid reasons.11

Section 5, Canon 6 of the New Code of Judicial Conduct for the Philippine
Judiciary,12 mandates judges to perform all judicial duties, including the delivery
of reserved decisions, efficiently, fairly and with reasonable promptness.
Similarly, Supreme Court Circular No. 13 dated July 1, 1987 directs judges to
observe unscrupulously the periods prescribed by the Constitution in the
adjudication and resolution of all cases or matters submitted to their court.
In Visbal v. Buban,13 the Court held that failure to decide cases and other matters
within the reglementary period constitutes gross inefficiency and warrants the
imposition of administrative sanction against the erring magistrate.14Delay in
resolving motions and incidents pending before a judge within the reglementary
period of ninety (90) days fixed by the Constitution and the law is not excusable
and constitutes gross inefficiency.15 Further, such delay constitutes a violation of
Rule 3.05, Canon 3 of the Code of Judicial Conduct, which mandates that a judge
should dispose of the courts business promptly and decide cases within the
required periods. As a trial judge, respondent is a frontline official of the judiciary
and should at all times act with efficiency and with probity.16 Undue delay in the
disposition of cases and motions erodes the faith and confidence of the people in
the judiciary and unnecessarily blemishes its stature.17
4. An intention on the part of respondent to prevent complainants
appearance in court by sending an envelope, with a supposed notice of
hearing but with nothing inside.
Suffice it to be stated that in the absence of evidence to show that the sending of
an empty envelope to complainant was malicious on the part of respondent, he
cannot be held liable therefor.
Section 9 (1) and 11 (B), Rule 140 of the Rules of Court, as amended by A.M. No.
01-8-10-SC, classifies gross neglect or undue delay in rendering a decision or
order as a less serious charge which carries any of the following sanctions:
suspension from office without salary and other benefits for not less than one (1)
nor more than three (3) months or a fine of more than P10,000.00 but not
exceeding P20,000.00. We adopt the recommendation of the OCA that
respondent should be imposed a fine in the amount of P20,000.00.18
WHEREFORE, the Court finds respondent Judge Ricardo M. Agapito guilty of
gross neglect and is FINED in the amount of Twenty Thousand Pesos
(P20,000.00). The withheld amount of Twenty Thousand Pesos (P20,000.0)
from respondents retirement benefits is considered as payment of the fine.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 191532

August 15, 2012

MARGARITA
AMBRE
Y
vs.
PEOPLE OF THE PHILIPPINES Respondent.

CAYUNI, Petitioner,

PEREZ,*
REYES,**
DECISION
MENDOZA, J.:
This is a petition for review on certiorari seeking to reverse and set aside the
November 26, 2009 Decision 1 and the March 9, 2010 Resolution2 of the Court of
Appeals (CA) in CA-G.R. CR No. 31957, which affirmed the September
1,2008 Decision3 of the Regional Trial Court, Branch 123, Caloocan City, (RTC) in
Criminal Case No .. C-73029, finding petitioner Margarita Ambre y
Cayuni (Ambre) guilty beyond reasonable doubt of the crime of violation of
Section 15, Article II of Republic Act (R.A.) No. 9165.
THE FACTS
Two separate Informations were filed against Ambre, and co-accused, Bernie
Castro (Castro) and Kaycee Mendoza(Mendoza), before the RTC charging them
with illegal possession of drug paraphernalia docketed as Criminal Case No. C73028, and illegal use of methylamphetamine hydrochloride, otherwise known as
shabu, docketed as Criminal Case No. C-73029. The Informations indicting the
accused read:
Criminal Case No. C-73028
That on or about 20th day of April 2005 in Caloocan City, Metro Manila and
within the jurisdiction of this Honorable Court, the above-named accused,
without being authorized by law, did then and there willfully, unlawfully and
feloniously have in his possession, custody and control one (1) unsealed
transparent plastic sachet containing traces of white crystalline substance,
(METHYLAMPHETAMINE HYDROCHLORIDE), one (1) rolled aluminum foil
strip containing traces of white crystalline substance, (METHYLAMPHETAMINE
HYDROCHLORIDE), one (1) folded aluminum foil strip containing traces of

white crystalline substance, (METHYLAMPHETAMINE HYDROCHLORIDE)

and two (2) disposable plastic lighters, knowing the same are paraphernalias
instruments apparatus fit or intended for smoking, consuming, administering,
ingesting or introducing dangerous drug (METHYLAMPHETAMINE
HYDROCHLORIDE) into the body.
Contrary to law.4
Criminal Case No. C-73029
That on or about the 20th of April 2005 in Caloocan City, Metro Manila and
within the jurisdiction of this Honorable Court, the above-named accused,
conspiring together and mutually helping with one another, without being
authorized by law, did then and there willfully, unlawfully and feloniously use
and sniff Methylamphetamine Hydrochloride (Shabu), knowing the same to be a
dangerous drug under the provisions of the above-cited law.
Contrary to law.5
When arraigned, Castro and Mendoza pleaded guilty to both charges.
Consequently, they were meted the penalty of imprisonment of six (6) months
and one (1) day to one (1) year and eight (8) months and a fine of P25,000.00 in
Criminal Case No. C-73028. For their conviction in Criminal Case No. C-73029,
the RTC ordered their confinement at the Center for the Ultimate Rehabilitation
of Drug Dependents (CUREDD) for a period of six (6) months.6
Ambre, on the other hand, entered a plea of not guilty to the charges.7 Trial on
the merits ensued.
The Version of the Prosecution
From the testimonies of prosecution witnesses PO3 Fernando Moran (PO3
Moran), PO1 Ronald Allan Mateo (PO1 Mateo), PO2 Randulfo Hipolito (PO2
Hipolito), and P/Insp. Jessie dela Rosa (P/Insp. dela Rosa), it appeared that on
April 20, 2005, the Caloocan Police Station Anti-Illegal Drug-Special Operation
Unit conducted a buy-bust operation pursuant to a tip from a police informant
that a certain Abdulah Sultan (Sultan) and his wife Ina Aderp (Aderp) were
engaged in the selling of dangerous drugs at a residential compound in Caloocan
City; that the buy-bust operation resulted in the arrest of Aderp and a certain
Moctar Tagoranao (Tagoranao); that Sultan ran away from the scene of the
entrapment operation and PO3 Moran, PO2 Masi and PO1 Mateo, pursued him;
that in the course of the chase, Sultan led the said police officers to his house;
that inside the house, the police operatives found Ambre, Castro and Mendoza
having a pot session; that Ambre, in particular, was caught sniffing what was
suspected to be shabu in a rolled up aluminum foil; and that PO3 Moran ran after
Sultan while PO2 Masi and PO1 Mateo arrested Ambre, Castro and Mendoza for
illegal use of shabu.

The items confiscated from the three were marked and, thereafter, submitted for
laboratory examination. Physical Science Report No. DT-041-05 to DT-043-05
stated that the urine samples taken from Ambre and her coaccused were positive
for the presence of shabu while Physical Science Report No. D-149-05 showed
that the items seized from them were all found positive for traces of shabu.8
The Version of the Defense
Ambre vehemently denied the charges against her. Through the testimonies of
Ambre, Mendoza and Lily Rosete(Rosete), the defense claimed that on the
afternoon of April 20, 2005, Ambre was inside the residential compound in
Caloocan to buy malong; that her mother asked Rosete to accompany her because
Rosetes daughter-in-law, Nancy Buban (Buban), was a resident of Phase 12,
Caloocan City, an area inhabited by Muslims; that when they failed to buy
malong, Rosete and Buban left her inside the residential compound to look for
other vendors; that ten minutes later, the policemen barged inside the compound
and arrested her; that she was detained at the Caloocan City Jail where she met
Castro, Mendoza and Tagoranao; and that she was not brought to the Philippine
National Police (PNP) Crime Laboratory for drug testing.
Rosete further testified that after she had left Ambre inside the compound to find
other malong vendors, she returned fifteen minutes later and learned that the
policemen had arrested people inside the compound including Ambre.
Mendoza, who was convicted in Criminal Case No. C-73029, claimed that no pot
session took place on the afternoon of April 20, 2005. She averred that she and
Ambre were merely inside the residential compound, when policemen suddenly
came in and pointed guns at them.9
The Ruling of the Regional Trial Court
On September 1, 2008, the RTC rendered its decision declaring that the
prosecution was able to establish with certitude the guilt of Ambre for illegal use
of methylamphetamine hydrochloride or violation of Section 15, Article II of R.A.
No. 9165. The RTC, however, acquitted her of the crime of violation of Section 12,
Article II of R.A. No. 9165 for failure of the prosecution to prove with
particularity the drug paraphernalia found in her possession. The trial court
adjudged:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
1) In Crim. Case No. C- 73028, finding accused MARGARITA AMBRE Y CAYUNI
not guilty of the crime of Violation of Section 12, Article II, RA 9165;
2)In Crim. Case No. C-73029, finding accused MARGARITA AMBRE Y CAYUNI
guilty beyond reasonable doubt of the crime of Violation of Sec. 15, Art. II RA
9165 and hereby sentences her to be confined and rehabilitated at the

government rehabilitation center in Bicutan, Taguig, Metro Manila for a period of

six (6) months. The six (6) month period of rehabilitation shall commence only
from the time that she is brought inside the rehabilitation center and its
promulgation by this court for which the accused shall be notified.
The shabu subject of these cases is hereby confiscated in favor of the government
to be disposed of in accordance with the rules governing the same.
Costs against the accused.
SO ORDERED.10
The Decision of the Court of Appeals
Undaunted, Ambre appealed the judgment of conviction before the CA professing
her innocence of the crime. On November 26, 2009, the CA rendered the assailed
decision, the dispositive portion of which reads:
WHEREFORE, premises considered, the appeal is hereby DENIED. The Decision
dated September 1, 2008 of the Regional Trial Court, Branch 123, Caloocan City
is AFFIRMED.
SO ORDERED.11
Ambre's motion for reconsideration was denied by the CA in its March 9, 2010
Resolution. Hence, she filed this petition
THE ISSUES
Ambre raised the following issues:
1. WHETHER OR NOT THE ARREST OF AND THE SEARCH DONE AGAINST
THE PETITIONER ON APRIL 20, 2005 (THAT YIELDED ALLEGED DRUG
PARAPHERNALIA) CONFORMED WITH THE MANDATED LEGAL
PROCEDURES IN CONDUCTING A BUY-BUST OPERATION.
2. WHETHER OR NOT THE ARREST OF AND THE SEARCH DONE AGAINST
THE PETITIONER WERE PART AND PARCEL OF THE DISMISSED AND
DISCREDITED BUY-BUST OPERATIONS OF THE POLICE AND/OR "FRUITS
OF THE POISONOUS TREE" AND HENCE, WERE ILLEGAL.
3. WHETHER OR NOT THE PROSECUTION'S EVIDENCE THAT WERE
SEIZED DURING THE ILLEGAL BUY-BUST OPERATION ARE ADMISSIBLE
AS EVIDENCE.
4. WHETHER OR NOT THE EXCLUSION OR DISREGARD OF THE
FAVORABLE TESTIMONY OF PETITIONER'S WITNESS, HER CO-ACCUSED,

KAYCEE MENDOZA, ON THE GROUND THAT THE LATTER EARLIER PLED

GUILTY TO SUCH ILLEGAL USE, HAD VIOLATED THE RULE ON INTER
ALIOS ACTA UNDER SECTION 26, RULE 130 OF THE RULES OF COURT.
5. WHETHER OR NOT THE PETITIONER'S PENALTY OF SIX (6) MONTHS
REHABILITATION IN A GOVERNMENT CENTER IS A NULLITY GIVEN THE
LACK OF CONFIRMATORY TEST AS REQUIRED UNDER R.A. 9165
("COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002").12
A perusal of the pleadings filed by the parties leads the Court to conclude that the
case revolves on the following core issues:
1.) Whether the warrantless arrest of Ambre and the search of her person
was valid; and
2.) Whether the items seized are inadmissible in evidence.
Essentially, Ambre insists that the warrantless arrest and search made against
her were illegal because no offense was being committed at the time and the
police operatives were not authorized by a judicial order to enter the dwelling of
Sultan. She argues that the alleged "hot pursuit" on Sultan which ended in the
latter's house, where she, Mendoza and Castro were supposedly found having a
pot session, was more imaginary than real. In this regard, Ambre cites the April
29, 2005 Resolution of the Prosecutor's Office of Caloocan City dismissing the
case against Aderp and Sultan for insufficiency of evidence because the April 20,
2005 buy-bust operation was highly suspicious and doubtful. She posits that the
items allegedly seized from her were inadmissible in evidence being fruits of a
poisonous tree. She claims that the omission of the apprehending team to
observe the procedure outlined in R.A. No. 9165 for the seizure of evidence in
drugs cases significantly impairs the prosecutions case. Lastly, Ambre maintains
that she was not subjected to a confirmatory test and, hence, the imposition of
the penalty of six months rehabilitation was not justified.
For the State, the Office of the Solicitor General (OSG) urges this Court to affirm
the challenged decision for failure of Ambre to show that the RTC committed any
error in convicting her of illegal use of shabu. The OSG insists that Ambre was
lawfully arrested in accordance with Section 5, Rule 113 of the Rules of Court. It is
of the opinion that the credible and compelling evidence of the prosecution could
not be displaced by the empty denial offered by Ambre.
THE COURT'S RULING
The conviction of Ambre stands.
Section 2, Article III13 of the Constitution mandates that a search and seizure
must be carried out through or on the strength of a judicial warrant predicated
upon the existence of probable cause, absent which such search and seizure

becomes "unreasonable" within the meaning of said constitutional provision.

Evidence obtained and confiscated on the occasion of such an unreasonable
search and seizure is tainted and should be excluded for being the proverbial fruit
of a poisonous tree. In the language of the fundamental law, it shall be
inadmissible in evidence for any purpose in any proceeding.14
This exclusionary rule is not, however, an absolute and rigid proscription. One of
the recognized exception established by jurisprudence is search incident to a
lawful arrest.15 In this exception, the law requires that a lawful arrest must
precede the search of a person and his belongings. As a rule, an arrest is
considered legitimate if effected with a valid warrant of arrest. Section 5, Rule 113
of the Rules of Criminal Procedure, however, recognizes permissible 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;
(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 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)
Section 5, above, provides three (3) instances when warrantless arrest may be
lawfully effected: (a) arrest of a suspect in flagrante delicto; (b) arrest of a
suspect where, based on personal knowledge of the arresting officer, there is
probable cause that said suspect was the perpetrator of a crime which had just
been committed; (c) arrest of a prisoner who has escaped from custody serving
final judgment or temporarily confined during the pendency of his case or has
escaped while being transferred from one confinement to another.
In arrest in flagrante delicto, the accused is apprehended at the very moment he
is committing or attempting to commit or has just committed an offense in the
presence of the arresting officer. Clearly, to constitute a valid in flagrante
delicto arrest, two requisites must concur: (1) the person to be arrested must
execute an overt act indicating that he has just committed, is actually committing,
or is attempting to commit a crime; and (2) such overt act is done in the presence
or within the view of the arresting officer.16
In the case at bench, there is no gainsaying that Ambre was caught by the police
officers in the act of using shabu and, thus, can be lawfully arrested without a
warrant. PO1 Mateo positively identified Ambre sniffing suspected shabu from an

aluminum foil being held by Castro.17 Ambre, however, made much of the fact
that there was no prior valid intrusion in the residence of Sultan. The argument is
specious.
Suffice it to state that prior justification for intrusion or prior lawful intrusion is
not an element of an arrest in flagrante delicto. Thus, even granting arguendo
that the apprehending officers had no legal right to be present in the dwelling of
Sultan, it would not render unlawful the arrest of Ambre, who was seen sniffing
shabu with Castro and Mendoza in a pot session by the police officers.
Accordingly, PO2 Masi and PO1 Mateo were not only authorized but were also
duty-bound to arrest Ambre together with Castro and Mendoza for illegal use of
methamphetamine hydrochloride in violation of Section 15, Article II of R.A. No.
9165.
To write finis to the issue of validity and irregularity in her warrantless arrest, the
Court holds that Ambre is deemed to have waived her objections to her arrest for
not raising them before entering her plea.18
Considering that the warrantless arrest of Ambre was valid, the subsequent
search and seizure done on her person was likewise lawful. After all, a legitimate
warrantless arrest necessarily cloaks the arresting police officer with authority to
validly search and seize from the offender (1) dangerous weapons, and (2) those
that may be used as proof of the commission of an offense.19
Further, the physical evidence corroborates the testimonies of the prosecution
witnesses that Ambre, together with Castro and Mendoza, were illegally using
shabu. The urine samples taken from them were found positive for the presence
of shabu, as indicated in Physical Science Report No. DT-041-05 to DT-043-05. It
was likewise found that the items seized from the three were all positive for traces
of shabu as contained in Physical Science Report No. D-149-05 dated April 21,
2005. These findings were unrebutted.
Ambre's assertion that her conviction was incorrect, because the evidence against
her was obtained in violation of the procedure laid down in R.A. No. 9165, is
untenable.
While ideally the procedure on the chain of custody should be perfect and
unbroken, in reality, it is not as it is almost always impossible to obtain an
unbroken chain.20 This Court, however, has consistently held that the most
important factor is the preservation of the integrity and evidentiary value of the
seized items.21 In this case, the prosecution was able to demonstrate that the
integrity and evidentiary value of the confiscated drug paraphernalia had not
been compromised. Hence, even though the prosecution failed to submit in
evidence the physical inventory and photograph of the drug paraphernalia with
traces of shabu, this will not render Ambre's arrest illegal or the items seized
from her inadmissible.

Records bear out that after the arrest of Ambre with Castro and Mendoza, the
following items were confiscated from them: one (1) unsealed sachet with traces
of suspected shabu; one (1) strip of rolled up aluminum foil with traces of
suspected shabu; one (1) folded piece of aluminum foil with traces of white
crystalline substance also believed to be shabu; and two (2) yellow disposable
lighters. Upon arrival at the police station, PO3 Moran turned over the seized
items to PO2 Hipolito who immediately marked them in the presence of the
former. All the pieces of evidence were placed inside an improvised envelope
marked as "SAID-SOU EVIDENCE 04-20-05." With the Request for Laboratory
Examination, PO2 Hipolito brought the confiscated items to the PNP Crime
Laboratory and delivered them to P/Insp. dela Rosa, a forensic chemist, who
found all the items, except the disposable lighters, positive for traces of shabu.
Verily, the prosecution had adduced ample evidence to account for the crucial
links in the chain of custody of the seized items.
Even if the Court strikes down the seized drug paraphernalia with traces of shabu
as inadmissible, Ambre will not be exculpated from criminal liability. First, let it
be underscored that proof of the existence and possession by the accused of drug
paraphernalia is not a condition sine qua non for conviction of illegal use of
dangerous drugs. The law merely considers possession of drug paraphernalia
as prima facie evidence that the possessor has smoked, ingested or used a
dangerous drug and creates a presumption that he has violated Section 15 of R.A.
No. 9165.22
Secondly, the testimonies of the police officers have adequately established with
moral certainty the commission of the crime charged in the information and the
identity of Ambre as the perpetrator. At this juncture, the Court affirms the RTC's
finding that the police officers' testimonies deserve full faith and credit. Appellate
courts, generally, will not disturb the trial court's assessment of a witness'
credibility unless certain material facts and circumstances have been overlooked
or arbitrarily disregarded.23 The Court finds no reason to deviate from this rule in
this case.
Likewise, the Court upholds the presumption of regularity in the performance of
official duties. The presumption remains because the defense failed to present
clear and convincing evidence that the police officers did not properly perform
their duty or that they were inspired by an improper motive. The presumption
was not overcome as there was no showing that PO3 Moran, PO1 Mateo, PO2
Hipolito, and P/Insp. dela Rosa were impelled with improper motive to falsely
impute such offense against Ambre.
As against the positive testimonies of the prosecution witnesses, the defense of
denial offered by Ambre must simply fail. Bare denials cannot prevail over
positive identification made by the prosecution witnesses.24 Besides, this Court
has held in a catena of cases that the defense of denial or frame-up has been
viewed with disfavor for it can just as easily be concocted and is a common and
standard ploy in most prosecutions for violation of the Dangerous Drugs Act.25

Finally, Ambre contends that the penalty of six months of rehabilitation in a

government center imposed on her was a nullity, in view of the alleged lack of
confirmatory test. The Court is not persuaded.
It must be emphasized that in no instance did Ambre challenge, at the RTC, the
supposed absence of confirmatory drug test conducted on her. Ambre only
questioned the alleged omission when she appealed her conviction before the
CA. It was too late in the day for her to do so. Wellentrenched is the rule that
litigants cannot raise an issue for the first time on appeal as this would
contravene the basic rules of fair play and justice.26
WHEREFORE, the petition is DENIED. The assailed November 26, 2009
Decision and the March 9, 2010 Resolution of the Court of Appeals in CA-G.R.
CR No. 31957 are hereby AFFIRMED.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 201100

February 4, 2015

PEOPLE
OF
THE
PHILIPINES, Plaintiff-Appellee,
vs.
MHODS USMAN y GOGO, Accused-Appellant.
DECISION
PEREZ, J.:
Assailed in the present notice of appeal is the Decision1 dated 30 June 2011 of the
Court of Appeals (CA) in CA-G.R. CR-H.C. No. 03942, which affirmed in toto the
Decision2 dated 13 August 2008 of the Regional Trial Court (RTC), Manila,
Branch 23 in Criminal Case No. 03-222096, finding accused-appellant Mhods
Usman y Gogo (accused-appellant) guilty beyond reasonable doubt of illegal sale
of shabu under Sec. 5, Article II of Republic Act No. 9165 (R. A. No. 9165) or the
Comprehensive Dangerous Drugs Act of 2002, sentencing him to suffer the
penalty of life imprisonment and ordering him to pay a fine of P500,000.00.
In an Information dated 22 December 2003,3 accused-appellant was charged
with violation of Section 5, Art. II of R. A. No. 9165, as follows:
That on or about December 17, 2003 in the City of Manila, Philippines, the said
accused, not being authorized by law to sell, trade, deliver or give away any
dangerous drug, did then and there willfully, unlawfully and knowingly sell zero
pointzero six eight (0.068) grams of white crystalline substance containing
methylamphetamine hydrochloride known as "shabu," a dangerous drug.
Upon arraignment, accused-appellant, assisted by counsel, pleaded not guilty to
the crime charged.4
During pre-trial, the parties stipulated on the following: (1) the identity of
accused-appellant, (2) the jurisdiction of the court, (3) the qualification of the
expert witness,and (4) the genuineness of the documentary evidence submitted
by the prosecution.5 Thereafter, trial on the merits ensued.
As culled from the records, the prosecutions version of the facts was a
combination of the testimonies of the officers: PO1 Joel Sta. Maria (PO1 Sta.
Maria), PO2 Elymar Garcia, Irene Vidal, and PSI Judycel Macapagal (PSI
Macapagal):

PO1 JOEL STA. MARIA testified ingist as follows: On December 17, 2003, he was
assigned at the Anti Illegal Drugs Special Operations Task Unit of Police Station
No. 2. At around 11:00 oclock in the morning of said date, while on duty at PS 2,
a male confidential informant came to their office and informed SPO3 Rolando
del Rosario, their team leader, of the illegal selling of shabu by a certain Mhods, a
muslim at Isla Puting Bato. He heard them conversing as he was not far from
them. SPO3 del Rosario relayed the information to SAID Chief Nathaniel
Capitanea who instructed the former to form a team and to conduct a possible
buy bust operation against the subject. A five-member team was at once formed
consisting of PO2 Elymar Garcia, SPO3 Rolando del Rosario, PO3 Ricardo
Manansala, PO1 Erick Barias and the herein witness. They agreed that they will
buy P200.00 worth of shabu from the subject, who was later identified as the
herein accused. SPO3 del Rosario prepared the buy bust money consisting of
two P100.00 bills with marking "RR". He was designated to act as poseur buyer
so the marked bills were delivered to him by the team leader, SPO3 del Rosario.
They agreed likewise that the witness will immediately arrest the subject if the
sale is consummated. A pre-operation report was also prepared (Exh. "A"). Apart
from the identity and the location of the subject Mhods, the confidential
informant described the former as wearing a skin head hair, well built body, fair
complexion and wearing fatigue either pants or t-shirt. They left the station at
3:15 p.m. and conveyed to the Isla Puting Bato on board an owner type jeep and
scooter. He rode in the owner type jeep with SPO3 del Rosario, PO3 Manansala,
and the confidential informant arriving in the target place at 3:35 p.m., as the
jeep cannot passed (sic) through, he and the confidential informant rode a side
car going to Isla Puting Bato, thereafter they alighted from the pedicab and
entered a small alley where they saw MHODS. Accused approached the
Confidential Informant and asked him if he is going to get, meaning if he is going
to buy shabu. Instead of answering, the confidential informant pointed to him
who was beside him at that time. The herein witness showed the marked money
and the accused took them. Accused turned his back a little and got something
from his rightpocket and passed to him a plastic sachet containing white
crystalline substance suspected to be shabu. Upon receipt he grabbed the accused
and introduced himself as a police officer. He informed the accused of his
constitutional rights and the law he violated (Sec. 5 of RA 9165). Accused resisted
but other policemen rushed to assist him. He kept possession of the evidence
from place of arrest and upon arriving in the police station, he marked the same
with the accuseds initials "MUG" (Exh. "B-1"). Thereafter, he turned over the
stuff to the investigator Elymar Garcia, who in turn prepared a request for
laboratory examination (Exhibit "C") and brought the same together to the crime
laboratory for examination. After lab test, the specimen was found positive for
methamphetamine hydrochloride as borne in the Chemistry Report No. D285803 (Exhibit "D"). The arresting team executed an Affidavit of Apprehension
(Exhibits "E" to "E-4") and a Booking Sheet and Arrest Report (Exhibit "F").
Subsequently, the case was referred for inquest proceedings on December 18,
2003 (Exhibit "G") for the filing of appropriate proceedings (TSNs dated August
30, 2005).

On cross-examination, witness said that it was the accused who actually initiated
the buy bust operation by offering him and the confidential informant to buy
illegal drugs. After arrest, he did not mark the evidence in the area because the
accused was resisting and they do not know his name yet. They also did not
prepare an inventory of seized items. On re-cross, the witness said it was the
investigators duty to prepare the inventory of seized item (TSNs dated February
2, 2006).
PO2 Elymar Garcia next took the witness stand and he corroborated the
testimony of PO1 Joel Sta. Maria on material points.1wphi1 He added that he
acted merely as security perimeter and admitted that they did not follow the
confidential informant and the poseur buyer in Isla Puting Bato and just waited
for the arrest of the accused. Thus, he did not see the conduct of the buy bust
operation. The poseur buyer handed the evidence to him at the police station
after hemarked the same. He immediately prepared a request for laboratory
examination and brought the same and the specimen at the crime laboratory
(TSNs dated Sept. 27, 2006).
The prosecution presented Irene Vidal, Records Custodian of the Office of the
City Prosecutor of Manila. Her tesitmony was dispensed with after the defense
agreed to stipulate on the following material points, to wit: that she is in charge of
safekeeping records and evidence submitted to their office; that she has brought
with her the two pieces 100 peso marked bills with Serial Nos. BT670067 and
EX15103, respectively (Exhibits "I" and "J"), subject matter of this case, and that
she has no personal knowledge of the facts and circumstances surrounding the
arrest of the accused.
On June 26, 2007, the testimony of PSI Judycel A. Macapagal was stipulated on
by the prosecution and the defense specifically the qualification and expertise of
the forensic chemist, the authenticity and due execution of the letter request for
laboratory examination dated December 18, 2003 (Exh. "C") and the Chemistry
Report (Exhibit "D"). The defense admitted the existence of small brown envelop
(Exhibit "B") and the specimen contained thereat which is one heat sealed
transparent plastic sachet marked "MUG" (Exh. "B-1"). It was also admitted that
the laboratory examination on the specimen yielded positive result for
methylamphetamine hydrochloride, a dangerous drugs; that the Forensic
Chemist has brought the documents and specimen to Court. The prosecution in
turn admitted that the Forensic Chemist has no personal knowledge as to the
source of the specimen as well as the person who caused the markings on the
specimen.6
In defense, accused-appellant claimed that he was a victim of frameup by the
arresting officers, to wit:7
For his part, accused denied the allegations of the police officers and countered as
a defense that he was framed up by the arresting officers. He testified that he was,
in fact, arrested between 2 to 3 PM on December 17, 2003 and not at 4PM of said

day. He was then inside the comfort room in his house when the policemen in
civillian clothes entered and kicked the door of the CR. The policemen ransacked
his house and took his money which he borrowed from Uphill which was
intended for use in his business. When he got out of the restroom, he was
handcuffed and taken to Police Station No. 2 where he was forced to admit selling
shabu. He showed them his identification cardto prove that he was engaged in a
legal trade, but the police did not heedhis pleas. The team leader SPO1 del
Rosario demanded P400,000.00 from him in exchange of his freedom which he
was not able to give. On cross, he said that he did not know the police officers
prior to his arrest and therefore there is no established motive for them to charge
him falsely of such a grave offense. He admitted that he is not a good subject of
extortion.
Finding the evidence of the prosecution sufficient to establish the guilt of
accused-appellant, the RTC rendered a judgment of conviction, viz.:8
WHEREFORE, with all the foregoing facts and conclusions, accused MHODS
USMAN Y GOGO, is hereby found GUILTY of violating Section 5, Article II of
Republic Act No. 9165 in the manner stated in the Information and is sentenced
to suffer the penalty of life imprisonment and to pay a fineof P500,000.00,
without subsidiary imprisonment in case of insolvency.
The shabu, subject matter of this case, is hereby forfeited in favor of the STATE
and is ordered turned over to the PDEA for their appropriate destruction
pursuant to existing Rules.
Accused-appellant appealed before the CA, assigning the following errors:
I
THE COURT A QUOGRAVELY ERRED IN NOT FINDING THE
WARRANTLESS SEARCH AND SUBSEQUENT ARREST AS ILLEGAL.
II
THE COURT A QUOGRAVELY ERRED IN NOT FINDING THE
ACCUSED-APPELLANTS RIGHTS UNDER REPUBLIC ACT NO. 7438
(AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED,
DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS
THE DUTIES OF THE ARRESTING, DETAINING AND INVESTIGATING
OFFICERS, AND PROVIDING PENALTIES FOR VIOLATIONS
THEREOF) WERE VIOLATED.
III
THE COURT A QUOGRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY DESPITE NON-COMPLIANCE WITH SECTION 21

OF REPUBLIC ACT NO. 9165 AND ITS IMPLEMENTING RULES AND

REGULATIONS.9
After a thorough review of the records, the CA affirmed in totothe RTC Decision.
The appellate court ruled that accused-appellants arrest was valid because he
was caught in flagrante delicto selling dangerous drugs, that all the elements of
illegal saleof regulated or prohibited drugs are present in the case at bar, that
there was substantial compliance with the legal requirements on the handling of
the seized item, and that there was no proof to support accused-appelllants
allegation of frame-up. Thus, the CA held:
WHEREFORE, premises considered, the Decision dated August 13, 2008 of the
Regional Trial Court, National Capital Judicial Region, Branch 23, Manila, is
hereby AFFIRMED in toto.10 Accused-appellant is now before the Court, repleading the arguments he raised before the CA. In particular, accused-appellant
claims that his warrantless arrest was illegal;11 that he was not apprised of his
rights under Sections 2 and 3 of R. A. No. 7438;12and that there were serious
lapses in the procedure mandated by R. A. No. 9165 in the handling of the seized
shabu, as well as non-compliance with the chain of custody rule, resulting in the
prosecutions failure to properly identify the shabuoffered in court as the same
drugs seized from accused-appellant.13
We dismiss the appeal.
To begin with, we hold that accused-appellant can no longer question the legality
of his arrest. In People v. Vasquez,14 we reiterated the rule that any objection,
defect or irregularity attending an arrest mustbe made before the accused enters
his plea on arraignment, and having failed to move for the quashal of the
Information before arraignment, accused-appellant is now estopped from
questioning the legality of his arrest. Moreover, any irregularity was cured upon
his voluntary submission to the RTCs jurisdiction.
In the same vein, the claim of accused-appellant that he was not apprised of the
rights of a person taken into custody under R. A. No. 7438, which claim was
raised only during appealand not before he was arraigned, is deemed waived.15
Be that as it may, the fact of the matter is that the accused-appellant was caught
in flagrante delicto of selling illegal drugs to an undercover police officer in a buybust operation. His arrest, thus, falls within the ambit of Section 5 (a), Rule 113 of
the Revised Rules on Criminal Procedure when an arrest made without warrant is
deemed lawful.16
In People v. Loks,17 we acknowledged that a buy-bust operation is a legally
effective and proven procedure, sanctioned by law, for apprehending drug
peddlers and distributors. Since accused-appellant was caught by the buy-bust
team in flagrante delicto, his immediate arrest was also validly made. The
accused was caught in the act and had tobe apprehended on the spot.

Accused-appellants arrest being valid, we also hold that the subsequent

warrantless seizure of the illegal drugs from his person is equally valid. The
legitimate warrantless arrestalso cloaks the arresting police officer with the
authority to validly search and seize from the offender those that may be used to
prove the commission of the offense.18
As to whether accused-appellants guilt was established beyond reasonable doubt,
we rule in the affirmative.
In a catena of cases, this Court laid down the essential elements to be duly
established for a successful prosecution of offenses involving the illegal sale of
dangerous or prohibited drugs, like shabu, under Section 5, Article II of R.A. No.
9165, to wit: (1) the identity of the buyer and the seller, the object of the sale, and
the consideration; and (2) the delivery of the thing sold and payment therefor.
Briefly,the delivery of the illicit drug to the poseur-buyer and the receipt of the
marked money by the seller successfully consummate the buy-bust transaction.
What is material, therefore, is the proof that the transaction or sale transpired,
coupled with the presentation in court of the corpus delicti.19
The concurrence of said element scan be gleaned from the testimony of PO1 Sta.
Maria:
xxxx
Q When the confidential informant saw Mhods Usman, what happened next?
A He was approached by Mhods Usman and asked if we are going to get.
Q At the time that Mhods Usman approached the confidential informant and
asked him "kung kukuha," where were you then?
A I stood beside the confidential informant.
Q When Mhods Usman uttered the word (sic) "kung kukuha," what did you
understand those words (sic)?
A This is the term used in buying shabu maam.
Q What is the answer of the confidential informant when asked by Mhods
Usman?
A I was pointed to and said HIM.
Q So when you were pointed to by the confidential informant, what was the
reaction of Mhods Usman?
A I showed him the marked money and he took it.

Q Once he took the money, what did he do next?

A He turned slightly and get (sic) something from his pocket and he passed the
plastic sachet containing undetermined amount of white crystalline substance
suspected to be shabu.
Q What portion of the pocket of MhodsUsman did he take the plastic sachet?
A Right pocket, maam.
Q After the plastic sachet was handed to you by Usman what did you do next?
A When he passed to me the plastic sachet containing undetermined amount of
white crystalline substance, I immediately grabbed him and introduced myself as
police officer.
Q After you grabbed him and introduced yourself as police officer, what did you
tell him?
A I informed him of his constitutional rights and his possible violation.20
xxxx
Verily, all the elements for a conviction of illegal sale of dangerous or prohibited
drugs were proven by the prosecution: PO1 Sta. Maria proved that a buy-bust
operation actually took place, and that on such an occasion, accused-appellant
was apprehended delivering a plastic sachet containing white crystalline
substance to him, the poseur-buyer, in exchange of P200.00. PO1 Sta. Maria
retained possession of the seized substance until he was able to mark it inthe
police station with accused-appellants initials ("MUG"), then turned it over to
PO2 Garcia who prepared the request for laboratory examination and brought
the same to the crime laboratory, where PSI Macapagal later on confirmed that
the substance was methamphetamine hydrochloride or shabu. In open court, PO1
Sta. Maria positively identified accused-appellant as the one who sold him the
plastic sachet containing white crystalline substance, and he was also able to
identify said sachet as the same object sold to him by accused-appellant because
of the initials ("MUG") inscribed therein.
Accused-appellant raises the claim that no inventory was prepared, nor was a
photograph taken of the small plastic sachet allegedly recovered from him, and
that, moreover, there was no representative from the media and the Department
of Justice, nor any elected public official who signed the copies of the inventory.21
Indeed, as we held in People v. Torres,22 equally important in every prosecution
for illegal sale of dangerous or prohibited drugs is the presentation of evidence
ofthe seized drug as the corpus delicti. The identity of the prohibited drug must
be proved with moral certainty. It must also be established with the same degree

of certitude that the substance bought or seized during the buy-bust operation is
the same item offered in court as exhibit. In this regard, paragraph 1, Section 21,
Article II of R. A. No. 9165 (the chain of custody rule) provides for safeguards for
the protection of the identity and integrityof dangerous drugs seized, to wit:
SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered
Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and
Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment.
The PDEA shall take charge and have custody of all dangerous drugs, plant
sources of dangerous drugs, controlled precursors and essential chemicals, as
well as instruments/paraphernalia and/or laboratory equipment so confiscated,
seized and/or surrendered, for proper disposition in the following manner:
(1) The apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph
the same in the presence of the accused or the person/s from whom such items
were confiscated and/or seized, or his/her representative orcounsel, a
representative from the media and the Department of Justice (DOJ), and any
elected public official who shall be required to sign the copies of the inventory
and be given a copy thereof.
However, this Court has, in many cases, held that while the chain of custody
should ideally be perfect, in realityit is not, "as it is almost always impossible to
obtain an unbroken chain." The most important factor is the preservation of the
integrity and the evidentiary value of the seized items as they will be used to
determine the guiltor innocence of the accused. Hence, the prosecutions failure
to submit inevidence the physical inventory and photograph of the seized drugs
as required under Article 21 of R. A. No. 9165, will not render the accuseds arrest
illegal or the items seized from him inadmissible.23
The chain of custody is not established solely by compliance with the prescribed
physical inventory and photographing of the seized drugs in the presence of the
enumerated persons. The Implementing Rules and Regulations of R. A. No. 9165
on the handling and disposition of seized dangerous drugs states:
Provided, further, that non-compliance with these requirements under justifiable
grounds, as long as the integrity and evidentiary value of the seized items are
properly preserved by the apprehending officer/team, shall not render void and
invalid suchseizures of and custody over said items.24 (Italics, emphasis and
underscoring omitted)
In the case at bar, after the salewas consummated,PO1 Sta. Maria retained
possession of the seized sachetuntil he was able toproperly mark it, then turned it
over to PO2 Garcia who prepared the request for laboratory examination and
brought the same to the crime laboratory, where PSI Macapagal later on
confirmed that the substance was methamphetamine hydrochloride or shabu.

The same sachet was positively identified by PO1 Sta. Maria in open court to
bethe same item he confiscated from accused-appellant.
As to the fact that PO1 Sta. Maria was able to mark the seized sachet only at the
police station, in People v. Loks,25we held that the marking of the seized
substance immediately upon arrival at the police station qualified as a
compliance with the marking requirement. Such can also be said here in light of
the fact that the reason why PO1 Sta. Maria was unable to immediately mark the
seized sachet was due to accused-appellants resistance to arrest and, as at that
time, he did not knowaccused-appellants name yet.
It is apropos to reiterate here that where there is no showing that the trial court
overlooked or misinterpreted some material facts or that it gravely abused its
discretion, the Court will not disturb the trial court's assessment of the facts and
the credibility of the witnesses since the RTC was in a better position to assess
and weigh the evidence presented during trial. Settled too is the rule that the
factual findings of the appellate court sustaining those of the trial court are
binding on this Court, unless there is a clear showing that such findings are
tainted with arbitrariness, capriciousness or palpable error.26 In the case at bar,
we see no justification for overturning the findings of fact of the RTC and CA.
Lastly, as to accused-appellant's claim of frame-up, suffice it to say that in People
v. Bartolome,27 we held that the fact that frame-up and extortion could be easily
concocted renders such defenses hard to believe. Thus, although drug-related
violators have commonly tendered such defenses to fend off or refute valid
prosecutions of their drug-related violations, the Court has required that such
defenses, to be credited at all, must be established with clear and convincing
evidence.
In the case at bar, accused-appellant failed to ascribe, much less prove, any ill will
or improper motive on the part of the apprehending police officers. The accusedappellant admitted that he does not know said police officers prior to his arrest,
and that he is not aware of any established motive for them to charge him falsely
of a grave offense. Moreover, accusedappellant acknowledged that he is not a
good subject for extortion. Thus, in the absence of any evidence of ill will or
improper motive, none is presumed to exist.
WHEREFORE, premises considered, the present appeal is DISMISSED.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 190623

November 17, 2014

PEOPLE
OF
THE
PIDLIPPINES, Plaintiff-Appellee,
vs.
ROMMEL ARAZA y SAGUN, Accused-Appellant.
DECISION
DEL CASTILLO, J.:
In this appeal, appellant Rommel Araza y Sagun (Araza) assails the October 14,
2009 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 03164
which affirmed the December 11, 2007 Decision2 of the Regional Trial Court
(RTC), Branch 93, San Pedro, Laguna in Criminal Case No. 3829-SPL finding
him guilty beyond reasonable doubt of illegal possession of shabu.
Factual Antecedents
On August 15, 2003, an Information3 for violation of Section 11, Article II,
Republic Act No. 9165 (RA 9165) otherwise known as the Comprehensive
Dangerous Drugs Act of 2002 was filed against Araza, the accusatory portion of
which reads as follows:
That on or about August 28, 2002, inthe Municipality of San Pedro, Province of
Laguna, Philippines and within the jurisdiction of this Honorable Court the said
accused, not being authorized by law, did then and there willfully, unlawfully and
feloniously have in his possession, control and custody one (1) small heat-sealed
transparent
plasticsachet
containing
METHAMPHETAMINE
HYDROCHLORIDE commonly known as "shabu," a dangerous drug, weighing
zero point zero six (0.06) gram.
CONTRARY TO LAW.4
During arraignment, Araza pleaded "not guilty."5 Thereafter, trial ensued.
Version of the Prosecution
The prosecution presented Police Officer 1 Edmund Talacca (PO1 Talacca) who
testified as follows:

At around 8:00 p.m. of August 28, 2002,PO1 Talacca accompanied the Barangay
Chairman, BarangayTanods and several members of the barangay council in
confiscating a video karera machine inside the house of a certain Alejandro Sacdo
(Sacdo). While confiscating said machine, PO1 Talacca saw nine persons,
including Araza, sniffing shabuor engaging in a pot session inside the house of
Sacdo. He arrested and frisked them. Recovered from the pocket of Araza was a
small heat-sealed transparent plastic sachet containing white crystalline
substance which PO1 Talacca suspected to be shabu. PO1 Talacca immediately
seized said sachet and brought Araza and his companions to the police station.
He turned over the said sachet to the chief investigator, Larry Cabrera (Cabrera),
who marked the same with the initials "RSA" in his presence.
The prosecution was supposed to alsopresent Police Senior Inspector Donna Villa
Huelgas (P/Sr. Insp. Huelgas), the Forensic Chemist who examined the
confiscated white crystalline substance, but her testimony was dispensed with
after the defense agreed to the following stipulations: 1) Chemistry Report No. D2028-02 as Exhibit "B"; 2) the name of suspect Rommel Araza ySagun as Exhibit
"B-1"; 3) the specimen submitted as Exhibit "B-2"; 4) findingsas Exhibit "B-3"; 5)
conclusion as Exhibit "B-4"; 6) the name and signature of P/Sr. Insp. Huelgas as
Exhibits "B-5"; 7) the request for laboratory examination as Exhibit "C"; 8) the
name of suspect Rommel Araza ySagun as Exhibit "C-1"; 9) the evidence
submitted as Exhibit "C-2"; 10) the stamp mark as Exhibit "C-3"; 11) the half-size
white envelope as Exhibit "D"; 12) the plastic sachet as Exhibit "D-1"; and 13) the
small heat-sealed plastic sachets as Exhibit "D-1-A."6
Version of the Defense
The defense presented a completely different version of the incident. Araza
testified that he was sleeping inside a room in the house of Sacdo when PO1
Talacca suddenly woke him up and frisked him. PO1 Talacca confiscated his
wallet that contained coins then took him to the police station and charged him
with illegal possession of prohibited drugs.
Ruling of the Regional Trial Court
The RTC ruled thatthe prosecution was able toestablish the guilt of Araza beyond
reasonable doubt. It gave credence to the testimony of PO1 Talacca since he is
presumed to have regularly performed his duties and there was no evidence that
he had any motive to falsely testify against Araza. The RTC rejected Arazas alibi
as a feeble defense that cannot prevail over the positive testimony of PO1 Talacca.
The dispositive portion of the December 11, 2007 Decision7 of the RTC reads:
WHEREFORE, the Court herebysentences accused ROMMEL ARAZA y SAGUN
to suffer an indeterminate penalty of imprisonment from twelve (12) years and
one (1) day as minimum to fifteen (15)years as maximum and to pay a fine in the
amount of P300,000.00.

The 0.06 gram of Methamphetamine Hydrochloride "shabu" which constitutes

the instrument in the commission of the crime is confiscated and forfeited in
favor of the government. Atty. Jaarmy Bolus-Romero, Branch Clerk of Court, is
hereby directed to immediately transmit the 0.06 [gram] of Methamphetamine
Hydrochloride "shabu"to the Dangerous Drugs Board for proper disposition.
Costs against accused.
SO ORDERED.8
Araza filed a notice of appeal9 which was approved bythe RTC. Hence, the entire
records of the casewere forwarded to the CA.10
Ruling of the Court of Appeals
In his brief,11 Araza highlighted PO1 Talaccas admission under oath that the
shabuwas confiscated from his pocket and not in plain view. He posited that the
shabu is inadmissible in evidence since it was illegally seized, having been taken
from his pocket and not as an incident of an arrest in flagrante delicto. Araza
likewise argued that the rule on chain of custody was not properly adhered to
since there was no evidence that a physical inventory of the shabu was conducted
in the presence ofany elected local government official and the media. He claimed
that the possibility of tampering, alteration or substitution of the substance may
have been present since the investigating officer who marked the seized shabuin
the police station and the person who delivered the same to the crime laboratory
were not presented during the trial.
The CA, however, was not impressed. It ruled that Araza was estopped from
assailing the legality of his arrest for his failure to move to quash the Information
against him prior to arraignment.It also held that he could no longer question the
chain of custody for failing to raise the same during trial. Besides, the prosecution
was able to establish the integrity and evidentiary value of the seized item. Thus,
the CA issued its assailed Decision12 with the following dispositive portion:
WHEREFORE, the assailed Decisiondated 11 December 2007 of the Regional
Trial Court, Fourth Judicial Region, San Pedro, Laguna, Branch 93, in Criminal
Case No. 3829-SPL, is hereby AFFIRMED.
SO ORDERED.13
Hence, this appeal where Araza seeks for his acquittal.
Issues
On February 15, 2010, the parties weredirected to file their respective
supplemental briefs but both of them opted to just adopt the brief they submitted
before the CA.

Araza imputes error upon the RTC and CA in upholding the validity of his
warrantless arrest and in finding that the procedure for the custody and control
of prohibited drugs was complied with.14
Our Ruling
The appeal is unmeritorious.
The offense of illegal possession of dangerous drugs has been established.
The elements that must be established in the successful prosecution of a
dangerous drugs case are: "(1) the accused is in possession of an item or object
which is identified to be a prohibited drug; (2) such possession is not authorized
by law; and (3) the accused freely and consciously possessed the drug."15 "Mere
possession x x x of a prohibited drug, without legal authority, is punishable under
[RA 9165]."16
The prosecution satisfied the foregoing elements during trial. The arresting
officer, PO1 Talacca, positively identified Arazaas the person caught in possession
of the shabu presented in court. He stated that the shabuwas validly confiscated
after Araza was arrested in flagrante delicto sniffing shabuin the company of
other people. Relevant portions of his testimony are as follows:
Q Do you recall where you were on August 28, 2002 at around 8:00 oclock in the
evening?
A Yes, maam, I was with the barangay chairman of Brgy. Langgam, San Pedro,
Laguna, Police Officer Mendoza, some members of the barangay council and
members of the barangay tanod. [W]e went to Brgy. Langgam to conduct a
confiscation of video karera in the house of Alejandro Sacdo.
xxxx
Q When you arrived at the house ofAlejandro Sacdo, what happened?
A We [went directly] to the house ofAlejandro Sacdo [where] we found a video
karera.
Q What did you do when you saw that there was a video karera machine inside
the house?
A The barangay chairman and [the] members of our group immediately
confiscated the video karera machine.
Q Was Alejandro Sacdo inside his house then?
A Yes, maam, he was present.

xxxx
Q Aside from Alejandro Sacdo, who else, if any, was inside that house?
A There were all in all nine persons, including Alejandro Sacdo.
Q What were they doing?
A They were inside the house of Alejandro Sacdo sniffing shabu.
Q After that, what did you do?
A I called the attention of our companions, the barangay officials and the tanods
and we immediately [entered] the house and arrested these nine people.
Q After you arrested the nine people,including Alejandro Sacdo, what happened
next?
A When we arrested the nine persons, it is our standard operating procedure to
search each suspect and when I searched Mr. Araza, I found one small heat[]sealed plastic sachet [on] him. Q You referred to Mr. Rommel Araza y Sagun as
the one from whom you were able to confiscate a small heat[-]sealed plastic
[sachet], if he is in court right now, will you beable to identify him?
A Yes, maam, there he is (witness pointing to a man seated inside the courtroom
who identified himself as Rommel Araza y Sagun)
Q After you arrested the nine persons including Alejandro Sacdo and herein
accused Araza and after confiscating from him the small heat[-] sealed plastic
sachet, what did you do next?
A We brought them to the barangay hall of Brgy. Langgam.
Q What did you do next?
A After we [took down their names and pertinent details] in the blotter, all of
them were brought to the police station for investigation and proper filing of case
against them.
Q What did you do with the specimen you confiscated from Araza?
A I gave it to our chief investigator, Officer Larry Cabrera, for proper [marking] of
the specimen and for them to deliver the same to the crime laboratory for
examination.
Q Where were you then when the police investigator put the markings on the
specimen?

A I was in front of him, maam.

Q Did you see what markings were placed on the specimen?
A Yes, maam, it was RSA which stands for the name of Rommel Araza y
Sagun.17 Chemistry Report No. D-2028-02 confirmed that a qualitative
examination conducted on the specimen inside the plastic sachet seized from
Araza yielded positive result for methamphetamine hydrochloride or shabu.18
We find the statement of PO1 Talacca tobe credible. The narration of the incident
by a police officer, "buttressed by the presumption that they have regularly
performed their duties in the absence of convincing proof to the contrary, must
be given weight."19 His testimony, the physical evidence and the facts stipulated
upon during trial wereconsistent with each other. Araza also failed to adduce
evidence showing thathe had legal authority to possess the seized drugs. Thus,
there is no reason to disturb the findings of the RTC as affirmed by the CA.
An accused cannot assail any irregularity in the manner of his arrest after
arraignment.
Araza calls attention to the admission of PO1 Talacca that the shabuwas
confiscated from his pocket and was not in plain view. Hetherefore posits that he
was not apprehended in flagrante delicto and the ensuing warrantless arrest was
invalid. Moreover, the sachet allegedly seized from him isnot admissible in
evidence against him being the fruit of a poisonous tree.
Such an argument is unworthy of credence since objections to a warrant of arrest
or the procedure by which the court acquired jurisdiction over the person of the
accused must be manifested prior to entering his plea.20 Otherwise, the objection
is deemed waived.21 Moreover, jurisprudence dictates that "the illegal arrest of an
accused is not sufficient cause for setting aside a valid judgment rendered upon a
sufficient complaint after a trial free from error. It will not even negate the
validity of the conviction of the accused."22
Here, Araza did not object to the alleged irregularity of his arrest before or during
his arraignment. He even actively participated in the proceedings before the RTC.
He is, therefore, deemed to have waived any defect he believes to have existed
during his arrest and effectively submitted himself to the jurisdiction of the RTC.
In other words, Arazais already estopped from assailing any irregularity in his
arrest after he failed to raise this issue or to move for the quashal of the
Information on this ground before his arraignment.
Circumstances when warrantless search and subsequent seizure are valid.
As to the admissibility of the shabuseized from Araza, it is crucial to ascertain
whether the search that yielded the alleged contraband was lawful.23 The
Constitution states that failureto secure a judicial warrant prior to the actual

search and consequent seizure would render it unreasonable and any evidence
obtained therefrom shall be inadmissible for any purpose in any
proceeding.24 This constitutional prohibition,however, admits of the following
exceptions:
1. Warrantless search incidental to a lawful arrest;
2. Search 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.25
In this case, there is sufficient evidence to prove that the warrantless search of
Araza was effected as an incident to a lawful arrest. Section 5, Rule 113 of the
Rules of Court provides in part:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he isserving final judgment or
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
PO1 Talacca testified that he saw Araza and his companions sniffing substance
that seemed to be shabu inside the premises where a video karera machine was
being confiscated by the barangay officials for whom he provided security. He
thus entered the room, effected their arrest and conducted a body search on
them. Upon searching the person of Araza, PO1 Talacca recovered from him a
plastic sachet containing white crystalline substance. Araza and the seized item
were then brought to the police station. After a laboratory examination, the white
crystalline substance insidethe sachet was found positive for shabu.

Considering the foregoing, Arazawas clearly apprehended inflagrante delictoas he

was then committing a crime (sniffing shabu) in the presence of PO1 Talacca.
Hence, his warrantless arrest is valid pursuant to Section 5(a) of the abovequoted Rule 113 of the Rules of Court. And having been lawfully arrested, the
warrantless search that followed was undoubtedly incidental to a lawful arrest,
which as mentioned, is an exception to the constitutional prohibition on
warrantless search and seizure. Conversely, the shabuseized from Araza is
admissible in evidence toprove his guilt of the offense charged.
Failure to comply with Section 21, Article II of Republic Act No. 9165 is not fatal.
Araza hinges his claim for acquittal on the failure of the police officers to submit a
pre-coordination report and physicalinventory of the seized dangerous drug. He
cites Section 21(1), Art. II of RA 9165, which provides:
Sec. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered
Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and
Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment.
The PDEA shall take charge and have custody of all dangerous drugs, plant
sources of dangerous drugs, controlled precursors and essential chemicals, as
well as instruments/paraphernalia and/or laboratory equipment so confiscated,
seized and/orsurrendered, for proper disposition in the following manner:
(1) The apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph
the same in the presence of the accused, or the person/s from whom such items
were confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the Department of Justice (DOJ), and any
elected public official who shall be required to sign the copies of the inventory
and be given a copy thereof.
However, it has beenheld time and again that failure to strictly comply with
aforesaid procedure will not render an arrest illegal or the seized items
inadmissible in evidence. Substantial compliance is sufficientas provided under
Section 21(a) of the Implementing Rules and Regulationsof RA 9165, viz:
(a) The apprehending officer/team having initial custody and control of the drugs
shall, immediately after seizure and confiscation, physically inventory and
photograph the same in the presence of the accused or the person/s from whom
such items were confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the Department of Justice (DOJ), and any
elected public official who shall be required to sign the copies of the inventory
and be given a copy thereof: Provided, that the physical inventory and
photograph shall be conducted at the place where the search warrant is served; or
at the nearest police station or at the nearest office of the apprehending officer/
team, whichever is practicable, in case of warrantless seizures; Provided, further,
that non-compliance with these requirements under justifiable grounds, as long

as the integrity and the evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall not render void and invalid
such seizures of and custody over said items; (Emphasis supplied)
Arazas contention that there must be compliance with a pre-coordination report
has no legal basis since nowhere is itstated in the foregoing provision that this is
an essential procedural requisite. A pre-coordination report is also not needed
when an accused is apprehended inflagrante delicto for obvious reason.
Further, failure by the prosecution to prove that the police officers conducted the
required physical inventory of the seized shabudoes not immediately result in the
unlawful arrest of an accused or render inadmissible in evidence the items seized.
"What is essential 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
orinnocence of the accused."26 Here, the records reveal that the police officers
substantially complied with the process of preserving the integrity of the seized
shabu.
The chain of custody has not been broken.
Araza likewise contends thatthe prosecution failed to properly establish the chain
of custody of evidence, and this adversely affected its admissibility. He argues
that the non-presentation of the investigating officer and the person who
delivered the specimen to the police crime laboratory creates serious doubt that
the alleged shabuconfiscated from him was the same one marked, forwarded to
the crime laboratory for examination, and later presented as evidence in court.
He puts forward the possibility that the evidence may have been tampered,
altered, and/or substituted as would affectits identity and integrity.
Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002,
implementing RA 9165, defines chain of custody as "the duly recorded authorized
movements and custody of seized drugs orcontrolled chemicals or plant sources
of dangerous drugs or laboratory equipment of each stage, from the time of
seizure/confiscation to receipt in the forensic laboratory to safekeeping to
presentation in court for destruction. Such record of movements and custody of
[the] seized item shall include the identity and signature of the person who held
temporary custody of the seized item, the date and time when such transfer of
custody were made in the course of safekeeping and use in court as evidence, and
the final disposition."
The chain of custody requirement ensures the preservation of the integrity and
evidentiary value of the seized items such that doubts as to the identity of the
evidence are eliminated.27 "To be admissible, the prosecution must show by
records or testimony, the continuous whereabouts of the exhibit at least between
the time it came into possession of the police officers and until it was tested in the
laboratory to determine its composition up to the time it was offered in
evidence."28

Here, the prosecution proved the chain of custody of the seized shabuas follows:
After arresting Araza for possession of a sachet of suspected shabu, PO1 Talacca
brought him and the confiscated item to the police station. The said sachet was
turned over to the chief investigator, Cabrera, who marked it with the initials
"RSA" in front of PO1 Talacca. A request for laboratory examination of the
contents of said sachet was delivered, together with the sachet of suspected
shabu, to the PNP Crime Laboratory in Calamba, Laguna. Forensic Chemist P/Sr.
Insp. Huelgas examined the contents ofthe sachet with markings "RSA" and
prepared Chemistry Report No. D-2028-02, confirming that the specimen tested
positive for shabu. During the trial, this result was submitted to the RTC as
Exhibit "D" and stipulated on by both parties.29 The marked sachet of shabuwas
also presented in evidence and identified by PO1 Talacca.
Arazas contention that the investigating officer who received the seized drug in
the police station and the person who delivered the same to the crime laboratory
should have been presented to establish an unbroken chain of custody fails to
impress. It is not necessary to present all persons who came into contact with the
seized drug to testify in court.30 "As long as the chain of custody of the seized
drug was clearly established to have not been broken and the prosecution did not
fail to identify properly the drugs seized, it is not indispensable that each and
every person who came into possession of the drugs should take the witness
stand."31 The non-presentation as witnesses of the evidence custodian and the
officer on duty is not a crucial point against the prosecution since it has the
discretion as to how to present its case and the right tochoose whom it wishes to
present as witnesses.32
Based on the foregoing findings, the chain of custody of the seized substance was
not broken.1wphi1 The suspected illegal drug confiscated from Araza was the
same substance presented and identified in court. There is therefore no reason to
disturb the findings of the RTC, as affirmed by the CA, that he is guilty beyond
reasonable doubt of illegal possession of a dangerous drug.
Proper Penalty
Section 11, Article II of RA 9165, provides:
Sec. 11. Possession qf' Dangerous Drugs. - The penalty of life imprisonment to
death and a fine ranging from Five hundred thousand pesos (P500,000.00) to
Ten million pesos (P10,000,000.00) shall be imposed upon any person who,
unless authorized by law, shall possess any dangerous drug in the following
quantities, regardless of the degree of purity thereof;
xxxx
Otherwise, if the quantity involved is less than the foregoing quantities, the
penalties shall be graduated as follows:

xxxx
(3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a
fine ranging from Three hundred thousand (P300,000.00) pesos to Four
hundred thousand pesos (P400,000.00), if the quantities of dangerous drugs are
less than five (5) grams of opium, morphine, heroin, cocaine or cocaine
hydrochloride, marijuana resin or marijuana resin oil, methamphetamine
hydrochloride or "shabu," or other dangerous drugs such as, but not limited to
MDMA or "ecstasy," PMA, TMA, LSD, GHB, and those similarly designed or
newly introduced drugs and their derivatives, without having any therapeutic
value or if the quantity possessed is far beyond therapeutic requirements; or less
than three hundred (300) grams of marijuana x x x. (Emphasis supplied)
Araza was found guilty of possessing 0.06 gram of shabu, or less than five grams
of the dangerous drug, without any legal authority. Under these circumstances,
the penalty of imprisonment imposed by the RTC and affinned by the CA, which
is twelve (12) years and one (1) day as minimum to fifteen (15) years as
maximum, is within the range provided by RA 9165. Thus, the Court finds the
same, as well as the payment of fine of P300,000.00 in order. WHEREFORE, the
appeal is DISMISSED. The Decision dated October 14, 2009 of the Court of
Appeals in CA-G.R. CR-H.C. No. 03164 is AFFIRMED.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 208169

October 8, 2014

PEOPLE
OF
THE
PHILIPPINES, Plaintiff-Appellee,
vs.
EDWARD ADRIANO y SALES, Accused-Appellant.
RESOLUTION
PEREZ, J.:
For review is the conviction of Edward Adriano y Sales (Adriano) for the crime of
illegal sale of shabu punishable under Section 5, Article II of the Republic Act No.
9165 (R.A. No. 9165), otherwise known as Comprehensive Dangerous Drugs Act
(CDDA) of 2002, by the Court of Appeals (CA) in a Decision1 dated 29 October
2012 in CA-G.R. CR-H.C. No. 05182, which affirmed the Decision2 of the
Regional Trial Court (RTC) dated 23 August 2011 in "People of the Philippines v.
Edward Adriano y Sales", docketed as Criminal Case No. 16444-D.
The Information
That on or about 25th day of October 2008, in the City of Taguig, Philippines,
and within the jurisdiction of this Honorable Court, the abovenamed accused,
without being authorized by law, sell, deliver, and give away to a poseur buyer,
zero point twelve (0.12) gram of a white crystalline substance, commonly known
as "shabu" which is a dangerous drug, in consideration of the amount of Two
Hundred Pesos (Php200.00) and in violation of the above cited law.3 When
arraigned, Adriano pleaded not guilty to the crime charged. During the pre-trial
conference on 13 July 2009, the parties stipulated on the following:
1. The identity of the accused as the same person named in the
information;
2. The existence of the specimens and documents marked as evidence but
with a counter-proposal that the forensic chemist has no personal
knowledge as to the source of the specimen; 3. The qualification of the
forensic chemist, P/Sr. Insp. Yelah Manaog;
4. The existence and due execution of the Physical Science Report No. D334-08;

5. The due execution and genuineness of the FINDINGS on the qualitative

examination conducted on the specimens gave POSITIVE result to the test
for the presence of Methylamphetamine Hydrochloride, a dangerous
drug;4
During trial, the prosecution presented Police Officer 1 Teodoro Morales (PO1
Morales), who testified that acting on a report received from a barangay official
and an informant that Adriano was selling drugs in North Daang Hari, Taguig
City, Police Chief Inspector Porfirio Calagan formed a team to conduct a buy-bust
operation to entrap Adriano, designating PO1 Morales as the poseur-buyer, and
marking the buy-bust money consisting of ten P100.00 bills with the initials
"PC". After briefing, PO1 Morales, together with the informant and his team,
proceeded to North Daang Hari where PO1 Morales bought P200.00 worth of
shabu from Adriano. Upon giving Adriano the marked money and after receiving
a plastic sachet containing white crystalline substance, PO1 Morales signaled his
team to arrest Adriano. PO2 Ronnie Fabroa immediately arrested Adriano.5 The
marked money confiscated from Adriano was brought to the police station for
investigation, while the plastic sachet containing white crystalline substance,
which was marked with "ESA-251008"6 at the crime scene was brought to the
Philippine National Police (PNP) Crime Laboratory by PO2 Vergelio Del Rosario,
who also prepared the letter-request.7
In the PNP Crime Laboratory, the result of the laboratory examination conducted
by Police/Senior Inspector Yelah Manaog confirmed the presence of
methamphetamine hydrochloride.8
On the other hand, the defense presented Adriano, who testified that on 22
October 2008, at around 10:00 p.m., he was at home, putting his nephews and
nieces to sleep when suddenly two (2) armed men barged into the house and
dragged him outside and forcibly took him to the police station in Taguig City. It
was only whenthey arrived at the police station when he learned that he was
arrested for illegal sale of shabu.9
The Ruling of the RTC
In a Decision dated 23 August 2011, the RTC found Adriano guilty beyond
reasonable doubt of the crime charged.1wphi1The RTC gave credence to the
testimony of PO1 Morales based on the presumption that police officers perform
their duties in a regular manner because the defense failed to establish any illmotive on the part of the arresting officers to at least create a dent in the
prosecutions case. The positive identification of Adriano as the perpetrator of the
crime charged without any showing of ill-motive on the part of the witness
testifying on the matter, prevails over Adrianos alibi and denial. The dispositive
portion of the decision reads:
WHEREFORE, in view of the foregoing, the accused Edward Adriano y Sales is
hereby found GUILTY beyond reasonable doubt of committing the crime, as

charged, and is hereby sentenced to suffer the penalty of LIFE IMPRISONMENT

and a fine of FIVE HUNDRED THOUSAND PESOS (PHP500,000.00).10 x x x x
On appeal, Adriano argued that the shabu allegedly seized from his possession is
inadmissible because of the following reasons: (1) the warrantless arrest on his
person is invalid; and (2) the arresting officers violated Section 21 of R.A. No.
9165. Adriano asserted that the warrantless arrest was illegal because there was
no reason why the police officers could not have obtained a judicial warrant
before the arrest.
The Ruling of the CA
The CA affirmed the ruling of the RTC. The CA ruled that the prosecution
established the elements of the crime of illegal sale of shabu. Even if the
prosecution failed to comply with the requirements provided in Section 21 of R.A.
No. 9165, such noncompliance did not render the seized items inadmissible in
evidence. Further, the CA rejected the defenses attempt to debunk PO1 Morales
testimony based on the defenses failure to substantiate its allegation of ill-motive
on the part of the arresting officers.
The appeal before us maintained thatthe lower courts gravely erred in not finding
the warrantless arrest on the person of Adriano as illegal and in convicting
Adriano despite the police officers noncompliance with Section 21 of R.A. No.
9165.
We rule in the negative.
Our Ruling
In prosecutions for illegal sale of dangerous drugs, the following two (2) elements
must be duly established: (1) proof that the transaction or sale took place; and (2)
the presentation in court of the corpus delicti or the illicit drug as evidence.11
In the case at bar, the prosecution duly established the two (2) elements: (1) to
account that the transaction or sale indeed took place, PO1 Morales narrated the
transaction in a clear and direct manner; and (2) the seized illegal drugs and
marked money were presented before the trial court as proof of the identity of the
object of the crime and of the corpus delicti.12
The argument on the arresting officers noncompliance with Section 21 of R.A.
No. 9165 deals with the procedure for the custody and disposition of confiscated,
seized or surrendered dangerous drugs. The law reads:
Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered
Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and
Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment.
The PDEA shall take charge and have custody of all dangerous drugs, plant

sources of dangerous drugs, controlled precursors and essential chemicals, as

well as instruments/paraphernalia and/or laboratory equipment so confiscated,
seized and/or surrendered, for proper disposition in the following manner:
(1) The apprehending team having initial custody and control of the drugs
shall, immediately after seizure and confiscation, physically inventory and
photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public official who shall be
required to sign the copies of the inventory and be given a copy thereof;
(2) Within twenty-four (24) hours upon confiscation/seizure of dangerous
drugs, plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well asinstruments/paraphernalia and/or
laboratory equipment, the same shall be submitted to the PDEA Forensic
Laboratory for a qualitative and quantitative examination;
(3) A certification of the forensic laboratory examination results, which
shall be done under oath by the forensic laboratory examiner, shall be
issued within twenty-four (24) hours after the receipt of the subject
item/s: Provided, That when the volume of the dangerous drugs, plant
sources of dangerous drugs, and controlled precursors and essential
chemicals does not allow the completion of testing within the time frame,
a partial laboratory examination report shall be provisionally issued
stating therein the quantities of dangerous drugs still to be examined by
the forensic laboratory: Provided, however, That a final certification shall
be issued on the completed forensic laboratory examination on the same
within the next twenty-four (24) hours;
However, it has been repeatedly noted by the Court, the Implementing Rules of
R.A. No. 9165 offer some measure of flexibility through the proviso, "noncompliance with these requirements under justifiable grounds, as long as the
integrity and the evidentiary value of the seized items are properly preserved by
the apprehending officer/team, shall not render void and invalid such seizures of
and custody over said items". Otherwise stated, non-compliance does not
invalidate the seizure or render the arrest of the accused illegal or the items
seized from him as inadmissible as long as the integrity and evidentiary value of
the seized items are preserved.
To prove that the integrity and evidentiary value of the seized items are
preserved, the Implementing Rules allow the prosecution to establish an
unbroken chain of custody of the seized item, which in this case, has been duly
established by the prosecution. "Chain of custody" means the duly recorded
authorized movements and custody of seized drugs or controlled chemicals from
the time of seizure/confiscation to receipt in the forensic laboratory to
safekeeping to presentation in court for destruction.13

The details of the unbroken chain of custody as found by the CA: The first link in
the chain of custody is from the time PO1 Morales took possession of the plastic
sachet of shabu from accused-appellant and marked the same with the initials
"EAS", to the time the plastic sachet of shabu was brought to the Police Station.
The Certificate of Inventory for the items seized from accused-appellant was
signed by PO1 Morales, PO2 Ronnie Fabroa, and the accused-appellant. The
second link in the chain of custody is from the time the plastic sachet of shabu
was brought from the Police Station, to the PNP Crime Laboratory. A letterrequest was made for the laboratory examination of the contents of the plastic
sachet of shabu seized from accused-appellant. The letter-request, and plastic
sachet of shabu, were delivered to the PNP Crime Laboratory by PO2 Del Rosario.
Per Chemistry Report No. D-334-08 prepared by Police Senior Inspector Yelah
Manaog, the contents of the plastic sachet tested positive for shabu.14
Thus, despite the arresting officersfailure to strictly observe the requirements of
Section 21 on the custody and disposition of the seized items, the violation of the
CDDA of 2002 was duly proven. The arresting officers duly recorded the
movements and custody of the seized items from the time of seizure/confiscation
to receipt by the forensic laboratory to safekeeping up to presentation in court.
With regard to the warrantless arrest, the defenses contention that the buy-bust
team should have procured a search warrant for the validity of the buy-bust
operation is misplaced. Warrantless arrests are allowed in three (3) instances as
provided by Section 5 of Rule 113 of the Rules on Criminal Procedure, 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, oris 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 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.
Based on the above provision, Adriano was arrested pursuant to Section 5(a),
which provides that a person may be arrested without a warrant if he "has
committed, is actually committing, or is attempting to commit an offense." In the
case at bar, Adriano was caught in the act of committing an offense, in flagrante
delicto, when Adriano was caught selling illegal shabu through a buy-bust
operation, within the plain view of the arresting officers.

A buy-bust operation is "a form of entrapment, in which the violator is caught in

flagrante delictoand the police officers conducting the operation are not only
authorized but duty-boundto apprehend the violator and to search him for
anything that may have been part of or used in the commission of the crime."15 In
People v. Agulay,16 we discussed buy-bust operation as a form of a valid and
effective mode of apprehending drug pushers:
A buy-bust operation is a form of entrapment which in recent years has been
accepted as a valid and effective mode of apprehending drug pushers. In a buybust operation, the idea to commit a crime originates from the offender, without
anybody inducing or prodding him to commit the offense. If carried out with due
regard for constitutional and legal safeguards, a buy-bust operation deserves
judicial sanction.17
Finally, the arresting officers enjoy the presumption of regularity in the
performance of their official duties. The presumption may be overcome by clear
and convincing evidence. However, in the case at bar, the defense failed to
present any proof to substantiate its imputation of ill-motive on the part of the
arresting officers. Contrarily, the prosecution duly proved the existence of the two
elements ofthe crime of illegal sale of shabu and established the integrity and
evidentiary value of the seized items. The presumption of regularity in favor of
the arresting officers prevails. WHEREFORE, we find no cogent reason to reverse
the finding of the lower court which found Edward Adriano y Salesguilty beyond
reasonable doubt of the crime of illegal sale of shabu. The appeal is hereby
DISMISSED. The Court of Appeal's decision in "People of the Philippines v.
Edward Adriano y Sales", docketed as CA-G.R. CR-H.C. No. 05182 is
AFFIRMED.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 204589

November 19, 2014

RIZALDY
SANCHEZ
y
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

CAJILI, Petitioner,

DECISION
MENDOZA, J.:
This is a petition for certiorari under Rule 65 seeking to reverse and set aside the
July 25, 2012 Decision1 and the November 20, 2012 Resolution2 of the Court of
Appeals (CA), in CA-G.R. CR No. 31742 filed by petitioner Rizaldy Sanchez y
Cajili (Sanchez), affirming the April 21, 2005 Decision3 of the Regional Trial
Court of Imus, Cavite, Branch 20 (RTC), which convicted him for Violation of
Section 11, Article l l of Republic Act (R.A.) No. 9165. The dispositive portion of
the RTC decision reads:
WHEREFORE, premises considered, judgment is rendered convicting accused
Rizaldy Sanchez y Cajili of Violation of Section 11, Article II of Republic Act No.
9165 and hereby sentences him to suffer imprisonment from twelve (12) to fifteen
(15) years and to pay a fine of Php300,000.00. SO ORDERED.4
Sanchez was charged with violation of Section 11, Article II of R.A. No. 9165,
otherwise known as the Comprehensive Dangerous Drugs Act of 2002, in the
Information,5 dated March 20, 2003, filed before the RTC and docketed as
Criminal Case No. 10745-03. The accusatory portion of the Information indicting
Sanchez reads:
That on or about the 19th day of March 2003, in the Municipality of Imus,
Province of Cavite, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, not being authorized by law, did then and there
willfully, unlawfully and feloniously have in his possession, control and custody,
0.1017 gram of Methamphetamine Hydrochloride, commonly known as "shabu,"
a dangerous drug, in violation of the provisions of Republic Act No. 9165,
otherwise known as the Comprehensive Dangerous Drugs Act of 2002.
When arraigned, Sanchez pleaded not guilty to the offense charged. During the
pre-trial, the prosecution and the defense stipulated on the existence and due
execution of the following pieces of evidence: 1] the request for laboratory
examination; 2]certification issued by the National Bureau of Investigation

(NBI);3] Dangerous Drugs Report; and 4] transparent plastic sachet containing

small transparent plastic sachet of white crystalline substance.6Thereafter, trial
on the merits ensued.
Version of the Prosecution
The prosecutions version of the events as summarized by the Office of the
Solicitor General (OSG)in its Comment7on the petition is as follows:
Around 2:50 pm of March 19, 2003, acting on the information that Jacinta
Marciano, aka "Intang," was selling drugs to tricycle drivers, SPO1 Elmer
Amposta, together with CSU Edmundo Hernandez, CSU Jose Tagle, Jr., and CSU
Samuel Monzon, was dispatched to Barangay Alapan 1-B, Imus, Cavite to conduct
an operation.
While at the place, the group waited for a tricycle going to, and coming from, the
house of Jacinta. After a few minutes, they spotted a tricycle carrying Rizaldy
Sanchez coming out of the house. The group chased the tricycle. After catching up
with it, they requested Rizaldy to alight. It was then that they noticed Rizaldy
holding a match box.
SPO1 Amposta asked Rizaldy if he could see the contents of the match box.
Rizaldy agreed. While examining it, SPO1 Amposta found a small transparent
plastic sachet which contained a white crystalline substance. Suspecting that the
substance was a regulated drug, the group accosted Rizaldy and the tricycle
driver. The group brought the two to the police station.
On March 20, 2003, Salud M. Rosales, a forensic chemist from the NBI,
submitted a Certification which reads:
This certifies that on the above date at 9:25 a.m. one PO1 Edgardo Nario of Imus,
Mun. PS, PNP, Imus, Cavite submitted to this office for laboratory examinations
the following specimen/s to wit:
White crystalline substance contained in a small plastic sachet, marked "RSC,"
placed in a plastic pack, marked "Mar. 19, 2003." (net wt. = 0.1017 gm)
Examinations conducted on the above-mentioned specimen/s gave POSITIVE
RESULTS for METHAMPHETAMINE HYDROCHLORIDE.
Said specimen/s were allegedly confiscated from RIZALDY SANCHEZ y CAJILI
and DARWIN REYES y VILLARENTE.
Official report follows:
This certification was issued uponrequest for purpose of filing the case.8

Version of the Defense

In the present petition,9 Sanchez denied the accusation against him and
presented a different version of the events that transpired in the afternoon of
March 19, 2003, to substantiate his claim of innocence:
On 24 February 2005, the accused Rizaldy Sanchez took the witness stand. He
testified that on the date and time in question, he, together with a certain Darwin
Reyes, were on their way home from Brgy. Alapan, Imus, Cavite, where they
transported a passenger, when their way was blocked by four (4) armed men
riding an owner-type jeepney. Without a word, the four men frisked him and
Darwin. He protested and asked what offense did they commit. The arresting
officers told him that they had just bought drugs from Alapan. He reasoned out
that he merely transported a passenger there but the policemen still accosted him
and he was brought to the Imus Police Station where hewas further investigated.
The police officer, however, let DarwinReyes go. On cross-examination, the
accused admitted that it was the first time that he saw the police officers at the
time he was arrested. He also disclosed that he was previously charged with the
same offense before Branch 90 of this court which was already dismissed, and
that the police officers who testified in the said case are not the same as those
involved in this case.10
The Ruling of the RTC
On April 21, 2005, the RTC rendered its decision11 finding that Sanchez was
caught in flagrante delicto,in actual possession of shabu. It stated that the police
operatives had reasonable ground to believe that Sanchez was in possession of
the said dangerous drug and such suspicion was confirmed when the match box
Sanchez was carrying was found to contain shabu. The RTC lent credence to the
testimony of prosecution witness, SPO1 Elmer Amposta (SPO1 Amposta) because
there was no showing that he had been impelled by any ill motive to falsely testify
against Sanchez. The dispositive portion of which reads:
WHEREFORE, premises considered, judgment is rendered convicting accused
Rizaldy Sanchez y Cajili of Violation of Section 11, Article II of Republic Act No.
9165 and hereby sentences him to suffer imprisonment from twelve (12) to fifteen
(15) years and to pay a fine of Php300,000.00. SO ORDERED.12
Unfazed, Sanchez appealed the RTC judgment of conviction before the CA. He
faulted the RTC for giving undue weight on the testimony of SPO1 Amposta
anchored merely on the presumption of regularity in the performance of duty of
the said arresting officer. He insisted that the prosecution evidence was
insufficient to establish his guilt.
The Ruling of the CA

The CA found no cogent reason to reverse or modify the findings of facts and
conclusions reached by the RTC and, thus, upheld the conviction of the accused
for violation of Section 11, Article II of R.A. No. 9165. According to the CA, there
was probable cause for the police officers to believe that Sanchez was then and
there committing a crime considering that he was seen leaving the residence of a
notorious drug dealer where, according to a tip they received, illegal drug
activities were being perpetrated. It concluded that the confiscation by the police
operative of the subject narcotic from Sanchez was pursuant to a valid search.
The CA then went on to write that non-compliance by the police officers on the
requirements of Section 21, paragraph 1, Article II of R.A. No. 9165, particularly
on the conduct of inventory and photograph of the seized drug, was not fatal to
the prosecutions causesince its integrity and evidentiary value had been duly
preserved. The falloof the decision reads:
WHEREFORE, the Decision of the Regional Trial Court, Branch 20, Imus, Cavite
dated April 21, 2005 and Order dated October 1, 2007 in Criminal Case No.
10745-03 finding accused appellant Rizaldy C. Sanchez guilty beyond reasonable
doubt of violation of Section 11, Article II of Republic Act No. 9165, is
AFFIRMED.
SO ORDERED.13
Sanchez filed a motion for reconsideration of the July 25, 2012 Decision, but it
was denied by the CA in its November 20, 2012 Resolution.
Hence, this petition.
Bewailing his conviction, Sanchez filed the present petition for "certiorari"under
Rule 65 of the Rules of Court and anchored on the following
GROUNDS:
1. THE HONORABLE COURT OF APPEALS, WITH ALL DUE RESPECT,
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
AND/OR EXCESS OF JURISDICTION WHEN IT HELD THAT ACCUSED
WAS CAUGHT IN FLAGRANTE DELICTO, HENCE,A SEARCH
WARRANT WAS NO LONGER NECESSARY; AND
2. THE HONORABLE COURT OFAPPEALS, WITH DUE RESPECT,
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
AND/OR EXCESS OF JURISDICTION WHEN IT HELD THAT NONCOMPLIANCE WITH SECTION 21, PARAGRAPH 1, ARTICLE II OF
REPUBLIC ACT NO. 9165 DOES NOT AUTOMATICALLY RENDER THE
SEIZED ITEMS INADMISSIBLE IN EVIDENCE.14
Sanchez insists on his acquittal. He argues that the warrantless arrest and search
on him were invalid due to the absence of probable cause on the part of the police

officers to effect an in flagrante delicto arrest under Section 15, Rule 113 of the
Rules of Court. He also contends that the failure of the police operatives to
comply with Section 21, paragraph 1, Article II of R.A. No. 9165 renders the
seized item inadmissible in evidence and creates reasonable doubt on his guilt.
By way of Comment15 to the petition, the OSG prays for the affirmance of the
challenged July 25, 2012 decision of the CA. The OSG submits that the
warrantless search and seizure of the subject narcotic were justified under the
plain view doctrine where a police officer is not searching for evidence against the
accused, but nonetheless inadvertently comes across an incriminating object.
The Courts Ruling
Preliminarily, the Court notes that this petition suffers from procedural infirmity.
Under Section 1, Rule 45 of the Rules of Court, the proper remedy to question the
CA judgment,final order or resolution, as in the present case, is a petition for
review on certiorari, which would be but a continuation of the appellate process
over the original case.16By filing a special civil action for certiorari under Rule 65,
Sanchez therefore clearly availed himself of the wrong remedy.
Be that as it may, the Court, in several cases before, had treated a petition for
certiorari as a petition for review under Rule 45, in accordance with the liberal
spirit and in the interest of substantial justice, particularly (1) if the petition was
filed within the reglementary period for filing a petition for review; (2) errors of
judgment are averred; and (3) there is sufficient reason to justify the relaxation of
the rules.17 The case at bench satisfies all the above requisites and, hence, there is
ample justification to treat this petition for certiorari as a petition for review.
Besides, it is axiomatic that the nature of an action is determined by the
allegations of the complaint or petition and the character of the relief
sought.18 Here, stripped of allegations of "grave abuse of discretion," the petition
actually avers errors of judgment rather than of jurisdiction, which are the
appropriate subjects of a petition for review on certiorari.
Going now into the substance of the petition, the Court finds the same to be
impressed with merit.
Although it is true that the trial courts evaluation of the credibility of witnesses
and their testimonies is entitled to great respect and not to be disturbed on
appeal, this rule, however, is not a hard and fast one. It is a time-honored rule
that the assessment of the trial court with regard to the credibility of witnesses
deserves the utmost respect, if not finality, for the reason that the trial judge has
the prerogative, denied to appellate judges, of observing the demeanor of the
declarants in the course of their testimonies. But an exception exists if there is a
showing that the trial judge overlooked, misunderstood, or misapplied some facts
or circumstances of weight and substance that would have affected the
case.19 After going over the records of the case at bench, the Court finds some
facts of weight and substance that have been overlooked, misapprehended, or
misapplied by the trial court which cast doubt on the guilt of Sanchez.

In sustaining the conviction of Sanchez, the CA ratiocinated that this was a clear
case of an in flagrante delicto arrest under paragraph (a) Section 5, Rule 113 of
the Rules on Criminal Procedure. In this regard, the CA wrote:
In the case at Bar, the acquisition of the regulated drug by the police officers
qualifies as a valid search following a lawful operation by the police officers. The
law enforcers acted on the directive of their superior based on an information
that the owner of the residence where Sanchez came from was a notorious drug
dealer. As Sanchez was seen leaving the said residence, the law enforcers had
probable cause to stop Sanchez on the road since there was already a tip that
illegal drug-related activities were perpetrated in the place where he came from
and seeing a match box held on one hand, the police officers action were justified
to inspect the same. The search therefore, is a sound basis for the lawful seizure
of the confiscated drug, arrest and conviction of Sanchez.
The case of People vs. Valdez (G.R. No. 127801, March 3, 1999) is instructive. In
that case, the police officers, by virtue of an information that a person having
been previously described by the informant, accosted Valdez and upon inspection
of the bag he was carrying, the police officers found the information given to
them to be true as it yielded marijuana leaves hidden in the water jug and lunch
box inside Valdezs bag. The Supreme Court in affirming the trial courts ruling
convicting Valdez declared that:
In this case, appellant was caught in flagrante since he was carrying marijuana at
the time of his arrest.1wphi1 A crime was actually being committed by the
appellant, thus, the search made upon his personal effects falls squarely under
paragraph (a) of the foregoing provisions of law, which allow a warrantless search
incident to lawful arrest. While it is true that SPO1 Mariano was not armed with a
search warrant when the search was conducted over the personal effects of
appellant, nevertheless, under the circumstances of the case, there was sufficient
probable cause for said police officer to believe that appellant was then and there
committing a crime. The cited case is akin to the circumstances in the instant
appeal as in this case, Sanchez, coming from the house of the identified drug
dealer, previously tipped by a concerned citizen, walked to a parked tricycle and
sped towards the direction of Kawit, Cavite. The search that gave way to the
seizure of the match box containing shabu was a reasonable course of event that
led to the valid warrantless arrest since there was sufficient probable cause for
chasing the tricycle he was in. (Underscoring supplied)
A judicious examination of the evidence on record belies the findings and
conclusions of the RTC and the CA.
At the outset, it is observed that the CA confused the search incidental to a lawful
arrest withthe stop-and-frisk principle, a wellrecognized exception to the warrant
requirement. Albeit it did not expressly state so, the CA labored under the
confused view that one and the other were indistinct and identical. That confused

view guided the CA to wrongly affirm the petitioner's conviction. The Court must
clear this confusion and correct the error.
It is necessary to remind the RTC and the CA that the Terry20 stop- and-frisk
search is entirely different from and should not be confused with the search
incidental to a lawful arrest envisioned under Section 13, Rule 126 of the Rules on
Criminal Procedure. The distinctions have been made clear in Malacat v. Court of
Appeals21:
In a search incidental to a lawful arrest, as the precedent arrest determines the
validity of the incidental search, the legality of the arrest is questioned in a large
majority of these cases, e.g., whether an arrest was merely used as a pretext for
conducting a search. In this instance, the law requires that there first be a lawful
arrest before a search can be made -- the process cannot be reversed. At bottom,
assuming a valid arrest, the arresting officer may search the person of the
arrestee and the area within which the latter may reach for a weapon or for
evidence to destroy, and seize any money or property found which was used in
the commission of the crime, or the fruit of the crime, or that which may be used
as evidence, or which might furnish the arrestee with the means of escaping or
committing violence.
xxxx
We now proceed to the justification for and allowable scope of a "stop-and-frisk"
as a "limited protective search of outer clothing for weapons," as laid down in
Terry, thus:
We merely hold today that where a police officer observes unusual conduct which
leads him reasonably to conclude in light of his experience that criminal activity
may be afoot and that the persons with whom he is dealing may be armed and
presently dangerous, where in the course of investigating this behavior he
identifies himself as a policeman and makes reasonable inquiries, and where
nothing in the initial stages of the encounter serves to dispel his reasonable fear
for his own or others' safety, he is entitled for the protection of himself and others
in the area to conduct a carefully limited search of the outer clothing of such
persons in an attempt to discover weapons which might be used to assault him.
Such a search is a reasonable search under the Fourth Amendment x x x x.
Other notable points of Terry are that while probable cause is not required to
conduct a "stop-and-frisk," it nevertheless holds that mere suspicion or a hunch
will not validate a "stop-and-frisk." A genuine reason must exist, in light of the
police officer's experience and surrounding conditions, to warrant the belief that
the person detained has weapons concealed about him. Finally, a "stop-and-frisk"
serves a two-fold interest: (1) the general interest of effective crime prevention
and detection, which underlies the recognition that a police officer may, under
appropriate circumstances and in an appropriate manner, approach a person for
purposes of investigating possible criminal behavior even without probable

cause; and (2) the more pressing interest of safety and self-preservation which
permit the police officer to take steps to assure himself that the person with
whom he deals is not armed with a deadly weapon that could unexpectedly and
fatally be used against the police officer.22
In the case at bench, neither the in flagrante delictoarrest nor the stop- and-frisk
principle was applicableto justify the warrantless search and seizure made by the
police operatives on Sanchez. An assiduous scrutiny of the factual backdrop of
this case shows that the search and seizure on Sanchez was unlawful. A portion of
SPO1 Ampostas testimony on direct examination is revelatory, viz:
Pros. Villarin:
Q: On March 19, 2003 at around 2:50 p.m., can you recall where were you?
A: Yes, Mam.
Q: Where were you? A: We were in Brgy. Alapan 1-B, Imus, Cavite.
Q: What were you doing at Alapan 1-B, Imus, Cavite? A: We were conducting an
operation against illegal drugs.
Q: Who were with you? A: CSU Edmundo Hernandez, CSU Jose Tagle, Jr. and
CSU Samuel
Monzon.
Q: Was the operation upon the instruction of your Superior?
A: Our superior gave us the information that there were tricycle drivers buying
drugs from "Intang" or Jacinta Marciano.
Q: What did you do after that?
A: We waited for a tricycle who will go to the house of Jacinta Marciano.
Q: After that what did you do?
A: A tricycle with a passenger went to the house of "Intang" and when the
passenger boarded the tricycle, we chase[d] them.
Q: After that, what happened next?
A: When we were able to catch the tricycle, the tricycle driver and the passenger
alighted from the tricycle.
Q: What did you do after they alighted from the tricycle?

A: I saw the passenger holding a match box.

Q: What did you do after you saw the passenger holding a match box?
A: I asked him if I can see the contents of the match box.
Q: Did he allow you?
A: Yes, mam. He handed to me voluntarily the match box.
Court:
Q: Who, the driver or the passenger?
A: The passenger, sir.
Pros. Villarin:
Q: After that what did you find out?
A: I opened the match box and I found out that it contained a small transparent
plastic sachet containing white crystalline substance.23
A search as an incident to a lawfularrest is sanctioned by the Rules of Court.24 It
bears emphasis that the law requires that the search be incidental to a lawful
arrest. Therefore it is beyond cavil that a lawful arrest must precede the search of
a person and his belongings; the process cannot be reversed.25
Here, the search preceded the arrest of Sanchez. There was no arrest prior to the
conduct of the search. Arrest is defined under Section 1, Rule 113 of the Rules of
Court as the taking of a person into custody that he may be bound to answer for
the commission of an offense. Under Section 2, of the same rule, an arrest is
effected by an actual restraint of the person to be arrested or by his voluntary
submission to the custody of the person making the arrest.26 Even casting aside
the petitioners version and basing the resolution of this case on the general
thrust of the prosecution evidence, no arrest was effected by the police operatives
upon the person of Sanchez before conducting the search on him. It appears from
the above quoted testimony of SPO1 Amposta that after they caught up with the
tricycle, its driver and the passenger, Sanchez, alighted from it; that he noticed
Sanchez holding a match box; and that he requested Sanchez if he could see the
contents of the match box, to which the petitioner acceded and handed it over to
him. The arrest of Sanchez was made only after the discovery by SPO1 Amposta
of the shabu inside the match box. Evidently, what happened in this case was that
a search was first undertaken and then later an arrest was effected based on the
evidence produced by the search.

Even granting arguendo that Sanchez was arrested before the search, still the
warrantless search and seizure must be struck down as illegal because the
warrantless arrest was unlawful. Section 5, Rule 113 of the Rules of Criminal
Procedure lays down the basic rules on lawful warrantless arrests, either by a
peace officer or a private person, as 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
actuallly committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or is
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
xxx
For warrantless arrest under paragraph (a) of Section 5 (in flagrante delicto
arrest) to operate, two elements must concur: (1) the person to be arrested must
execute an overt act indicating that he has just committed, is actually committing,
or is attempting tocommit a crime; and (2) such overt act is done in the presence
or withinthe view of the arresting officer.27 On the other hand, paragraph (b) of
Section 5 (arrest effected in hot pursuit) requires for its application that at the
time of the arrest, an offense has in fact just been committed and the arresting
officer has personal knowledge of facts indicating that the person to be
apprehended has committed it. These elements would be lacking in the case at
bench.
The evidence on record reveals that no overt physical act could be properly
attributed to Sanchez as to rouse suspicion in the minds of the police operatives
that he had just committed, was committing, or was about to commit a crime.
Sanchez was merely seen by the police operatives leaving the residence of a
known drug peddler, and boarding a tricycle that proceeded towards the
direction of Kawit, Cavite. Such acts cannot in any way be considered criminal
acts. In fact, even if Sanchez had exhibited unusual or strange acts, or at the
veryleast appeared suspicious, the same would not have been considered overt
acts in order for the police officers to effect a lawful warrantless arrest under
paragraph (a) of Section 5, Rule 113.
It has not been established either that the rigorous conditions set forth in
paragraph (b) of Section 5 have been complied with in this warrantless arrest.

When the police officers chased the tricycle, they had no personal knowledge to
believe that Sanchez bought shabu from the notorious drug dealer and actually
possessed the illegal drug when he boarded the tricycle. Probable cause has been
held to signify 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.28 The police
officers in this case had no inkling whatsoever as to what Sanchez did inside the
house of the known drug dealer. Besides, nowhere in the prosecution evidence
does it show that the drug dealer was conducting her nefarious drug activities
inside her house so as to warrant the police officers to draw a reasonable
suspicion that Sanchez must have gotten shabu from her and possessed the illegal
drug when he came out of the house. In other words, there was no overt
manifestation on the part of Sanchez that he had just engaged in, was actually
engaging in or was attempting to engage in the criminal activity of illegal
possession of shabu. Verily, probable cause in thiscase was more imagined than
real.
In the same vein, there could be no valid "stop-and-frisk" search in the case at
bench. Elucidating on what constitutes "stop-and-frisk" operation and how it is to
be carried out, the Court in People v. Chua29 wrote:
A stop and frisk was defined as the act of a police officer to stop a citizen on the
street, interrogate him, and pat him for weapon(s) or contraband. The police
officer should properly introduce himself and make initial inquiries, approach
and restrain a person who manifests unusual and suspicious conduct, in order to
check the latters outer clothing for possibly concealed weapons. The
apprehending police officer must have a genuine reason, in accordance with the
police officers experience and the surrounding conditions, to warrant the belief
that the person to be held has weapons (or contraband) concealed about him. It
should therefore be emphasized that a search and seizure should precede the
arrest for this principle to apply.30
In this jurisdiction, what may be regarded as a genuine reason or a reasonable
suspicion justifying a Terry stop-and-frisk search had been sufficiently illustrated
in two cases. In Manalili v. Court of Appeals and People,31 a policeman chanced
upon Manalili in front of the cemetery who appeared to be "high" on drugs as he
was observed to have reddish eyes and to be walking in a swaying manner.
Moreover, he appeared to be trying to avoid the policemen and when approached
and asked what he was holding in his hands, he tried to resist. When he showed
his wallet, it contained marijuana. The Court held that the policeman had
sufficient reason to accost Manalili to determine if he was actually "high" on
drugs due to his suspicious actuations, coupled with the fact that the area was a
haven for drug addicts.
In People v. Solayao,32 the Court also found justifiable reason for the police to
stop and frisk the accused after considering the following circumstances: the
drunken actuations of the accused and his companions; the fact that his

companions fled whenthey saw the policemen; and the fact that the peace officers
were precisely on an intelligence mission to verify reports that armed persons
where roaming the vicinity. Seemingly, the common thread of these examples
isthe presence of more than one seemingly innocent activity, which, taken
together, warranted a reasonable inference of criminal activity. It was not so in
the case at bench.
The Court does not find the totality of the circumstances described by SPO1
Amposta as sufficient to incite a reasonable suspicion that would justify a stopand-frisk search on Sanchez. Coming out from the house of a drug pusher and
boarding a tricycle, without more, were innocuous movements, and by
themselves alone could not give rise in the mind of an experienced and prudent
police officer of any belief that hehad shabu in his possession, or that he was
probably committing a crime in the presence of the officer. There was even no
allegation that Sanchez left the house of the drug dealer in haste or that he acted
in any other suspicious manner. There was no showing either that he tried
toevade or outmaneuver his pursuers or that he attempted to flee when the police
officers approached him. Truly, his acts and the surrounding circumstances could
not have engendered any reasonable suspicion on the part of the police officers
that a criminal activity had taken place or was afoot.
In the recent case of People v. Cogaed,33 where not a single suspicious
circumstance preceded the search on the accused, the Court ruled that the
questioned act of the police officer did not constitute a valid stop-and-frisk
operation. Cogaed was a mere passenger carrying a blue bag and a sack and
travelling aboard a jeepney. He did not exhibit any unusual or suspicious
behavior sufficient to justify the law enforcer in believing that he was engaged in
a criminal activity. Worse, the assessment of suspicion was made not by the
police officer but by the jeepney driver, who signaled to the police officer that
Cogaed was "suspicious." In view of the illegality of the search and seizure, the
12,337.6 grams of marijuana confiscated from the accused was held as
inadmissible.
The OSG characterizes the seizure of the subject shabu from Sanchez as seizure of
evidence in plain view. The Court disagrees.
Under the plain view doctrine, objects falling in the plain view of an officer who
has a right to be in the position to have that view are subject to seizure and may
be presented as evidence.34 The plain view doctrine applies when the following
requisites concur: (1) the law enforcement officer in search of the evidence has a
prior justification for an intrusion or is in a position from which he can view a
particular area; (2) the discovery of the evidence in plain view is inadvertent; and
(3) it is immediately apparent to the officer that the item he observes may be
evidence of a crime, contraband or otherwise subject to seizure.35
Measured against the foregoing standards, it is readily apparent that the seizure
of the subject shabu does notfall within the plain view exception. First, there was

no valid intrusion. As already discussed, Sanchez was illegally arrested. Second,

subject shabu was not inadvertently discovered, and third, it was not plainly
exposed to sight. Here, the subject shabu was allegedly inside a match box being
thenheld by Sanchez and was not readily apparent or transparent to the police
officers. In fact, SPO1 Amposta had to demand from Sanchez the possession of
the match box in order for him to open it and examine its content. The shabu was
not in plain view and its seizure without the requisite search warrant is in
violation of the law and the Constitution. In the light of the foregoing, there being
no lawful warrantless arrest and warrantless search and seizure, the shabu
purportedly seized from Sanchez is inadmissible in evidence for being the
proverbial fruit of the poisonous tree. As the confiscated shabu is the very corpus
delicti of the crime charged, the accused must be acquitted and exonerated from
the criminal charge of violation of Section 11, Article II of R.A. No. 9165.
Furthermore, the Court entertains doubts whether the shabu allegedly seized
from Sanchez was the very same item presented during the trial of this case. The
Court notes that there wereseveral lapses in the law enforcers handling of the
seized item which, when taken collectively, render the standards of chain of
custody seriously breached.
Chain of custody means the duly recorded authorized movements and custody of
seized drugs or controlled chemicals from the time of seizure/confiscation to
receipt in the forensic laboratory to safekeeping to presentation in court for
destruction.36 The function of the chain of custody requirement is to ensure that
the integrity and evidentiary value of the seized items are preserved, so much so
that unnecessary doubts as to the identity of the evidence are removed.37 Thus,
the chain of custody requirement has a two-fold purpose: (1) the preservation of
the integrity and evidentiary value of the seized items, and (2) the removal of
unnecessary doubts as to the identity of the evidence.38
In this case, the prosecution failed to account for each and every link in the chain
of custody of the shabu, from the moment it was allegedly confiscated up to the
time it was presented before the court as proof of the corpus delicti. The
testimony of SPO 1 Amposta was limited to the fact that he placed the marking
"RSC" on the seized drug; and that he and the three other police officers brought
Sanchez and the subject shabu to their station and turned them over to their
investigator. The prosecution evidence did not disclose where the marking of the
confiscated shabu took place and who witnessed it. The evidence does not show
who was in possession of the seized shabu from the crime scene to the police
station. A reading of the Certification, dated March 20, 2003, issued by Forensic
Chemist Salud Rosales shows that a certain PO I Edgardo Nario submitted the
specimen to the NBI for laboratory examination, but this piece of evidence does
not establish the identity of the police investigator to whom SPO 1 Amposta and
his group turned over the seized shabu. The identities of the person who received
the specimen at the NBI laboratory and the person who had the custody and
safekeeping of the seized marijuana after it was chemically analyzed pending its
presentation in court were also not disclosed.

Given the procedural lapses pointed out above, a serious uncertainty hangs over
the identity of the seized shabu that the prosecution introduced in evidence. The
prosecution failed to establish an unbroken chain of custody, resulting in
rendering the seizure and confiscation of the shabu open to doubt and suspicion.
Hence, the incriminatory evidence cannot pass judicial scrutiny. WHEREFORE,
the petition is GRANTED. The assailed July 25, 2012 Decision and the November
20, 2012 Resolution of the Court of Appeals in CA-G.R. CR No. 31742 are
REVERSED and SET ASIDE. Petitioner Rizaldy Sanchez y Cajili is ACQUITTED
on reasonable doubt. Accordingly, the Court orders the immediate release of the
petitioner, unless the latter is being lawfully held for another cause; and to
inform the Court of the date of his release, or reason for his continued
confinement, within ten (10) days from receipt of notice.
SO ORDERED.

FIRST DIVISION
G.R. No. 183700, October 13, 2014
PEOPLE
OF
THE
PHILIPPINES, Plaintiff-Appellee,
ANDAYA Y REANO, Accused-Appellant.

v. PABLITO

DECISION
BERSAMIN, J.:
The non-presentation of the confidential informant as a witness does not
ordinarily weaken the State's case against the accused. However, if the arresting
lawmen arrested the accused based on the pre-arranged signal from the
confidential informant who acted as the poseur buyer, his non-presentation must
be credibly explained and the transaction established by other ways in order to
satisfy the quantum of proof beyond reasonable doubt because the arresting
lawmen did not themselves participate in the buy-bust transaction with the
accused.
Antecedents
On February 7, 2003, an information for violation of Section 5 of Republic Act
No. 91651 (RA 9165) was filed charging Pablito Andaya y Reano (Andaya). The
accusatory portion of the information reads:ChanRoblesVirtualawlibrary
That on or about December 16, 2002 at around 9:50 o'clock in the evening at
Brgy. San Jose Sico, Batangas City, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, not being authorized by law, did
then and there, willfully, unlawfully and feloniously, sell, dispense or deliver,
more or less 0.09 gram(s) of Methamphetamine Hydrochloride (shabu), a
dangerous drug, which is a clear violation of the above-cited law.
CONTRARY TO LAW.2
Upon arraignment,3 Andaya pleaded not guilty to the charge. Thereafter, trial on
the
merits
ensued.
The CA summed up the versions of the parties, as follows:4
Five (5) witnesses were presented by the prosecution, namely: SPO4 Delfin Alea,
SPO3 Nelio Lopez, SPO2 Danilo Mercado, SPO4 Protasio Marasigan and Jupri
Delantar.
SPO2 Delfin Alea testified that at about 8:00 o'clock in the evening of December
16, 2002, their asset who was conducting surveillance of Pablito Andaya in
Barangay San Jose Sico, Batangas City, arrived at their station. Said asset

reported that he had arranged to buy shabu from Pablito. A team composed of
SPO1 Aguila, SPO1 Cabungcal, Eric de Chavez, PO1 Lindberg Yap, Edwalberto
Villar and asset Bagsit was constituted to conduct a buy-bust. Two (2) pieces of
PI00.00 bills both duly marked "X" were recorded in the police blotter. Alea gave
the marked bills to the asset. Upon reaching the designated place, the team
members alighted from their vehicles and occupied different positions where they
could see and observe the asset. The asset knocked on the door of Pablito's house.
Pablito came out. Pablito and the asset talked briefly. The asset gave Pablito the
marked money. The asset received something from appellant. The pre-arranged
signal signifying consummation of the transaction was given. The team members
approached Pablito and the asset, introduced themselves as police officers and
arrested accused. He was brought to the police station. The arrival of the team
was recorded in the police blotter. The merchandise handed by accused to the
asset was sent to the Regional Crime Laboratory in Camp Vicente Lim,
Canlubang, Laguna. The specimen was positive for methampethamine
Hydrochloride
(shabu),
a
dangerous
drug.
SPO2 Lopez received the person of the accused, the marked money and the item
accused handed to the asset. Lopez prepared the request for laboratory
examination. He also prepared the documents required for filing of the case with
the
Public
Prosecutor.
SPO2 Danilo Mercado recorded the marked bills in the police blotter before the
buy-bust. Upon the team's return, the marked money and the merchandise from
accused were turned over to SPO2 Mercado. He prepared a complaint sheet.
Thereafter, he turned over accused and the evidence to the Police Investigator.
SPO4 Protacio Marasigan received a written request for laboratory examination
of the subject merchandise. He brought the request to the crime laboratory in
Laguna.
Jupri Delantar, a Forensic Chemical Officer in Camp Vicente Lim, Laguna,
conducted the examination. The merchandise tested positive for shabu.
Accused-appellant denied the charge. He stated that at about 9:15 in the evening
of December 16, 2002 he was at home watching TV with his family when police
officers arrived. When he opened the door, a police officer poked his gun at him.
Somebody else held a long firearm. Pablito was handcuffed and brought outside.
He refused to negotiate and asked for a warrant. The policemen searched the
house, turned over the beddings and uncovered their furniture. No gun nor shabu
was found. Pablito was brought to the police station and detained. After three (3)
days he was released. He received a subpoena from the Public Prosecutor
afterwards.
His wife Crisanta, corroborated appellants' testimony. She added having told her
husband about the loss of their cellphone and the money in his wallet. She was

asked to produce P5,000.00 which she was unable to do. She was able to raise
only P2,000.00.
Judgment of the RTC
On February 21, 2006, the Regional Trial Court, Branch 4, in Batangas City
(RTC) rendered its judgment convicting Andaya as charged, and meted him the
penalty of life imprisonment,5viz:ChanRoblesVirtualawlibrary
In the case at bar, the buy-bust operation conducted on the night of December 16,
2002 is supported by the police blotter wherein not only was the departure and
arrival of the operatives have been duly recorded but also the two (2) pieces of
marked one hundred peso bills. The arrest of the accused was made after the
police asset had given the pre-arranged signal outside his house. The marked
money was recovered from the very hand of the accused while the deck of
crystalline substances given to the asset upon the latter's handing over to the
accused the marked money has been turned over to the police by the asset. The
crystalline substance when examined at the police crime laboratory was found to
contain methamphetamine hydrochloride a dangerous and prohibited drug and
weighed
0.09
gram.
These foregoing facts have been clearly testified to by the Prosecution witnesses
who are members of the Philippine Integrated National Police Force stationed at
Batangas City. No ill-motive has been imputed to any of these police officers prior
to and at the time the herein accused was arrested on the night of December 16,
2002.
The accused and his wife as a defense denied the sale of shabu that fateful night.
There were allegations in their testimonies that the police demanded money from
them. The wife of the accused even testified that she gave P1,500.00 to the police
officer who then eventually released said accused. And early on, she even claimed
money and a cellphone were missing after the accused was arrested in their
house.
The testimonies of the accused and his wife are bereft of any corroborating
evidence emanating from a disinterested source. It is no less than self-serving
devoid of any credence considering the following circumstances:
1. Scrutinizing the entirety of the testimony of the accused and his wife
Crisanta Andaya, there are material variances gleaned therefrom. The
accused himself never testified that he was pushed to a chair and yet
witness Crisanta Andaya said she saw her husband pushed to a chair. Also,
the accused said there were two guns poked at him when he opened the
door but his wife said only one was holding a gun while another had a long
firearm on his shoulder.

2. The testimony of the accused was that only P500.00 was taken by the
police before his release. But the wife said PI,500.00 was given to the
police before the accused was released.
3. The accused and his wife never made any complaint to the proper
authorities as regards the alleged loss of money and cellphone when the
accused was arrested on December 16, 2002. Neither was there any
complaint filed by them for the alleged P500.00 or PI,500.00 demanded
from and given by them to the police.
4. The accused was a resident of Barangay San Jose Sico, Batangas City since
the 1980's why was it that it was at Rosario, Batangas where the accused
was arrested. The Defense gave no evidence to contest the presumption of
guilt based on flight.
5. It is significant to note also that the accused never bothered to ask who
was knocking at his door past 9:00 o'clock in the evening. While his family
was already lying in bed to sleep he was still watching T.V. These
actuations of the accused tend to support the fact that the police asset had
made a deal with the accused for the sale of shabu and was expecting the
asset to come that night.
In the light of all foregoing considerations, the Court is left with no alternative
than to find the herein accused criminally liable for the offense charged in the
information.
Wherefore, accused Pablito Andaya y Reano is found GUILTY beyond
reasonable doubt of violating Section 5, Article II of Republic Act No. 9165. He is
therefore sentenced to undergo life imprisonment and to pay the costs of this
action. The 0.09 gram of methamphetamine hydrochloride subject of this case is
confiscated and directed to be proceeded against pursuant to law.
The accused may be credited with his preventive imprisonment if he is entitled to
any.
SO ORDERED.6
Decision of the CA
In his appeal, Andaya contended:ChanRoblesVirtualawlibrary
I.
THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THE ACCUSEDAPPELLANT'S SEARCH AND ARREST AS ILLEGAL.
II.

THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSEDAPPELLANT OF THE CRIME CHARGED DESPITE THE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE
DOUBT.7chanRoblesvirtualLawlibrary
On February 11, 2008, the CA promulgated its assailed decision affirming the
conviction,8viz:ChanRoblesVirtualawlibrary
WHEREFORE, in view of the foregoing, the appeal is DISMISSED. The decision
of Branch IV, RTC, Fourth Judicial Region, Batangas City, in Criminal Case No.
12771
is
AFFIRMED
in
toto.
SO ORDERED.9
Issues
Hence, Andaya appeals, insisting that the search of his house and his person and
his arrest by the police officers violated his constitutional right against
unreasonable searches and seizures; and that the Prosecution's non-presentation
of the confidential informant was adverse to the Prosecution, indicating that his
guilt was not proved beyond reasonable doubt.
Ruling
The

appeal

is

meritorious.

To secure the conviction of the accused who is charged with the illegal sale of
dangerous drugs as defined and punished by Section 5, Article II of Republic Act
No. 9165 (Comprehensive Drugs Act of 2002), the State must establish the
concurrence of the following elements, namely: (a) that the transaction or sale
took place between the accused and the poseur buyer; and (b) that the dangerous
drugs subject of the transaction or sale is presented in court as evidence of
the corpus
delicti.10
We reiterate that a buy-bust operation is a valid and legitimate form of
entrapment of the drug pusher.11 In such operation, the poseur buyer transacts
with the suspect by purchasing a quantity of the dangerous drug and paying the
price agreed upon, and in turn the drug pusher turns over or delivers the
dangerous drug subject of their agreement in exchange for the price or other
consideration. Once the transaction is consummated, the drug pusher is arrested,
and can be held to account under the criminal law. The justification that
underlies the legitimacy of the buy-bust operation is that the suspect is
arrested in flagranti delicto, that is, the suspect has just committed, or is in the
act of committing, or is attempting to commit the offense in the presence of the
arresting police officer or private person.12 The arresting police officer or private
person is favored in such instance with the presumption of regularity in the

performance

of

official

duty.

Proof of the transaction must be credible and complete. In every criminal

prosecution, it is the State, and no other, that bears the burden of proving the
illegal sale of the dangerous drug beyond reasonable doubt.13 This responsibility
imposed on the State accords with the presumption of innocence in favor of the
accused, who has no duty to prove his innocence until and unless the
presumption of innocence in his favor has been overcome by sufficient and
competent
evidence.14
Here, the confidential informant was not a police officer. He was designated to be
the poseur buyer himself. It is notable that the members of the buy-bust team
arrested Andaya on the basis of the pre-arranged signal from the poseur buyer.
The pre-arranged signal signified to the members of the buy-bust team that the
transaction had been consummated between the poseur buyer and Andaya.
However, the State did not present the confidential informant/ poseur buyer
during the trial to describe how exactly the transaction between him and Andaya
had taken place. There would have been no issue against that, except that none of
the members of the buy-bust team had directly witnessed the transaction, if any,
between Andaya and the poseur buyer due to their being positioned at a distance
from the poseur buyer and Andaya at the moment of the supposed transaction.
The CA did not find anything wrong or odd in the non-presentation of the poseur
buyer as a witness against the accused. In fact, it justified the non-presentation as
follows:ChanRoblesVirtualawlibrary
Appellant also questioned the failure of the prosecution to present the informer.
The court is aware of the considerations why confidential informants are usually
not presented by the prosecution. There is the need to hide their identity and
preserve their invaluable service to the police. (People v. Khor, 307 SCRA 295
[1999], citing People v. Gireng, 241 SCRA 11 [1995].) Foremost is the desire to
protect them from being objects or targets of revenge by the criminals they
implicate once they become known. (People vs. Ong, G.R. No. 137348, June 21,
2004.)
In People vs Lopez (214 SCRA 323), it was held that there was no need for the
prosecution to present the confidential informer as the poseur-buyer himself
positively identified the accused as the one who sold to him one deck of
methamphetamine hydrochloride or "shabu." The trial court then properly relied
on the testimonies of the police officers despite the decision of the prosecution
not to present the informer.15
The foregoing justification by the CA was off-tangent and does not help the
State's cause any. It is obvious that the rulings cited to support the need to
conceal the confidential informants' identities related to the confidential
informants who gave information against suspected drug dealers. The
presentation of the confidential informants as witnesses for the Prosecution in

those instances could be excused because there were poseur buyers who directly
incriminated the accused. In this case, however, it was different, because the
poseur buyer and the confidential informant were one and the same. Without the
poseur buyer's testimony, the State did not credibly incriminate Andaya.
Indeed, Section 5 of Republic Act No. 9165 punishes "any person, who, unless
authorized by law, shall sell, trade, administer, dispense, deliver, give away to
another, distribute, dispatch in transit or transport any dangerous drug,
including any and all species of opium poppy regardless of the quantity and
purity involved, or shall act as a broker in any of such transactions." Under the
law, selling was any act "of giving away any dangerous drug and/or controlled
precursor and essential chemical whether for money or any other
consideration;"16 while delivering was any act "of knowingly passing a dangerous
drug to another, personally or otherwise, and by any means, with or without
consideration."17 Given the legal characterizations of the acts constituting the
offense charged, the members of the buy-bust team could not incriminate Andaya
by simply declaring that they had seen from their positions the poseur buyer
handing something to Andaya who, in turn, gave something to the poseur buyer.
If the transaction was a sale, it was unwarranted to infer from such testimonies of
the members of the buy-bust team that what the poseur buyer handed over were
the marked P100.00 bills and that what Andaya gave to the poseur buyer was
the shabu purchased.
Another mark of suspicion attending the evidence of guilt related to the reliance
by the members of the buy-bust team on the pre-arranged signal from the poseur
buyer. To start with, the record does not show what the prearranged signal
consisted of. It is fundamental enough to expect the State to be clear and definite
about its evidence of guilt, particularly here where the conviction of Andaya
would require him to spend the rest of his natural life behind bars. Nothing less
should be done here. Secondly, the reliance on the supposed signal to establish
the consummation of the transaction between the poseur buyer and Andaya was
unwarranted because the unmitigatedly hearsay character of the signal rendered
it entirely bereft of trustworthiness. The arresting members of the buy-bust
team interpreted the signal from the anonymous poseur buyer as the sign of the
consummation of the transaction. Their interpretation, being necessarily
subjective without the testimony of the poseur buyer, unfairly threatened the
liberty of Andaya. We should not allow that threat to perpetuate itself. And,
lastly, the reliance on the signal would deprive Andaya the right to confront and
test the credibility of the poseur buyer who supposedly gave it.
We should look at the situation of Andaya with utmost caution because of what
our judicial experience through the years has told us about unscrupulous lawmen
resorting to stratagems of false incrimination in order to arrest individuals they
target for ulterior reasons. In this case, the arrest did not emanate from probable
cause, for the formless signal from the anonymous poseur buyer did not establish
beyond reasonable doubt the elements of illegal sale of dangerous drugs under
Section
5
of
Republic
Act
No.
9165.

In affirming the RTC's conviction of the accused, the CA observed that the
defense of frame-up put up by the accused was discredited by the absence of
proof of "any intent on the part of the police authorities to falsely impute such
crime against the accused, the presumption of regularity in the performance of
official duty stands."18 Such outright rejection by the lower courts of Andaya's
defense of frame-up is not outrightly binding. For sure, the frame-up defense has
been commonly used in prosecutions based on buy-bust operations that have led
to the arrest of the suspects.19 Its use might be seen as excessive, but the failure of
the accused to impute any ill motives to falsely incriminate them should not deter
us from scrutinizing the circumstances of the cases brought to us for review. We
should remind ourselves that we cannot presume that the accused committed the
crimes they have been charged with. The State must fully establish that for us. If
the imputation of ill motive to the lawmen is the only means of impeaching them,
then that would be the end of our dutiful vigilance to protect our citizenry from
false arrests and wrongful incriminations. We are aware that there have been in
the past many cases of false arrests and wrongful incriminations, and that should
heighten our resolve to strengthen the ramparts of judicial scrutiny.
Nor should we shirk from our responsibility of protecting the liberties of our
citizenry just because the lawmen are shielded by the presumption of the
regularity of their performance of duty. The presumed regularity is nothing but a
purely evidentiary tool intended to avoid the impossible and time-consuming
task of establishing every detail of the performance by officials and functionaries
of the Government. Conversion by no means defeat the much stronger and much
firmer presumption of innocence in favor of every person whose life, property
and liberty comes under the risk of forfeiture on the strength of a false accusation
of
committing
some
crime.20
The criminal accusation against a person must be substantiated by proof beyond
reasonable doubt. The Court should steadfastly safeguard his right to be
presumed innocent. Although his innocence could be doubted, for his reputation
in his community might not be lily-white or lustrous, he should not fear a
conviction for any crime, least of all one as grave as drug pushing, unless the
evidence against him was clear, competent and beyond reasonable doubt.
Otherwise, the presumption of innocence in his favor would be rendered empty.
WHEREFORE, the Court REVERSES and SETS ASIDE the decision
promulgated on February 11, 2008; ACQUITS accused Pablito Andaya y Reano
for failure to prove his guilt beyond reasonable doubt; and ORDERS his
immediate release from confinement at the National Penitentiary in Muntinlupa
City.
The Court DIRECTS that the Director of the Bureau of Corrections to implement
the immediate release of Pablito Andaya y Reano, unless he is confined for any
other lawful cause; and to report his compliance within ten days from receipt.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 200334

July 30, 2014

THE
PEOPLE
OF
THE
PHILIPPINES, Respondent-Appellee,
vs.
VICTOR COGAED y ROMANA, Accused-Appellant.
DECISION
LEONEN, J.:
The mantle of protection upon one's person and one's effects through Article III,
Section 2 of the Constitution is essential to allow citizens to evolve their
autonomy and, hence, to avail themselves of their right to privacy. The alleged
compromise with the battle against dangerous drugs is more apparent than real.
Often, the compromise is there because law enforcers neglect to perform what
could have been done to uphold the Constitution as they pursue those who traffic
this scourge of society.
Squarely raised in this appeal1 is the admissibility of the evidence seized as a
result of a warrantless arrest. The police officers identified the alleged perpetrator
through facts that were not based on their personal knowledge. The information
as to the accuseds whereabouts was sent through a text message. The
accusedwho never acted suspicious was identified by a driver. The bag that
allegedly contained the contraband was required to be opened under intimidating
circumstances and without the accused having been fully apprised of his rights.
This was not a reasonable search within the meaning of the Constitution. There
was no reasonable suspicion that would allow a legitimate "stop and frisk" action.
The alleged waiver of rights by the accused was not done intelligently, knowingly,
and without improper pressure or coercion.
The evidence, therefore, used against the accused should be excluded consistent
with Article III, Section 3 (2) of the Constitution. There being no possible
admissible evidence, the accused should be acquitted.
I
According to the prosecution, at about 6:00 a.m. of November 25, 2005, Police
Senior Inspector Sofronio Bayan (PSI Bayan) of the San Gabriel Police Station in
San Gabriel,La Union, "received a text message from an unidentified civilian

informer"2 that one Marvin Buya (also known as Marvin Bugat) "[would]be
transporting marijuana"3 from Barangay LunOy, San Gabriel, La Union to the
Poblacion of San Gabriel, La Union.4
PSI Bayan organized checkpoints in order "to intercept the suspect."5 PSI Bayan
ordered SPO1 Jaime Taracatac, Jr. (SPO1 Taracatac), a member of the San
Gabriel Police, to set up a checkpoint in the waiting area of passengers from San
Gabriel bound for San Fernando City.6 A passenger jeepney from Barangay LunOy arrived at SPO1 Taracatacs checkpoint.7 The jeepney driver disembarked and
signalled to SPO1 Taracatac indicating the two male passengers who were
carrying marijuana.8 SPO1 Taracatac approached the two male passengers who
were later identified as Victor RomanaCogaed and Santiago Sacpa
Dayao.9 Cogaed was carrying a blue bag and a sack while Dayao was holding a
yellow bag.10
SPO1 Taracatac asked Cogaed and Dayao about the contents of their
bags.11 Cogaed and Dayao told SPO1 Taracatac that they did not know since they
were transporting the bags as a favor for their barriomatenamed Marvin.12 After
this exchange, Cogaed opened the blue bag, revealing three bricks of what looked
like marijuana.13Cogaed then muttered, "nagloko daytoy nga Marvinen,
kastoymet gayam ti nagyanna,"which translates to "Marvin is a fool, this is what
[is] contained in the bag."14 "SPO1 Taracatac arrested [Cogaed] and . . . Dayao
and brought them to the police station."15 Cogaed and Dayao "were still carrying
their respective bags"16 inside the station.17
While at the police station, the Chief of Police and Investigator PO3 Stanley
Campit (PO3 Campit) requested Cogaed and Dayao to empty their bags.18 Inside
Cogaeds sack was "four (4) rolled pieces of suspected marijuana fruiting
tops,"19 and inside Dayaos yellow bag was a brick of suspected marijuana.20
PO3 Campit prepared the suspected marijuana for laboratory testing.21 PSI Bayan
personally delivered the suspected marijuana to the PNP Crime
Laboratory.22 Forensic Chemical Officer Police Inspector Valeriano Panem Laya
II performed the tests and found that the objects obtained were indeed
marijuana.23 The marijuana collected from Cogaeds blue bag had a total weight
of 8,091.5 grams.24 The marijuana from Cogaeds sack weighed 4,246.1
grams.25 The marijuana collected from Dayaos bag weighed 5,092 grams.26 A
total of 17,429.6 grams werecollected from Cogaeds and Dayaos bags.27
According to Cogaeds testimony during trial, he was at Balbalayan, La Union,
"waiting for a jeepney to take him"28to the Poblacion of San Gabriel so he could
buy pesticide.29 He boarded a jeepney and recognized Dayao, his younger
brothers friend.30 Upon arrival at the Poblacion of San Gabriel, Dayao and
Cogaed alighted from the jeepney.31 Dayao allegedly "asked for [Cogaeds] help in
carrying his things, which included a travelling bag and a sack."32 Cogaed agreed
because they were both going to the market.33 This was when SPO1 Taracatac
approached them, and when SPO1 Taracatac asked Cogaed what was inside the

bags, Cogaed replied that he did not know.34SPO1 Taracatac then talked to
Dayao, however, Cogaed was not privy to their conversation.35 Thereafter, SPO1
Taracatac arrested Dayao and Cogaed and brought them to the police
station.36 These facts were corroborated by an eyewitness,Teodoro Nalpu-ot, who
was standing across the parking lot where Cogaed was apprehended.37
At the police station, Cogaed said that "SPO1 Taracatac hit [him] on the
head."38 The bags were also opened, but Cogaed never knew what was inside.39
It was only later when Cogaed learned that it was marijuana when he and Dayao
were charged with illegal possession of dangerous drugs under Republic Act No.
9165.40 The information against them states:
That on or about the 25th day of November, 2005, in the Municipality of San
Gabriel, Province of La Union, and within the jurisdiction of this Honorable
Court, the above-named accused VICTOR COGAED Y ROMANA and SANTIAGO
DAYAO Y SACPA (who acted with discernment) and JOHN DOE,conspiring,
confederating and mutually helping one another, did then there wilfully,
unlawfully, feloniously and knowingly, without being authorized by law, have in
their control, custody and possession dried marijuana, a dangerous drug, with a
total weight of seventeen thousand,four hundred twenty-nine and sixtenths (17,
429.6) grams.
CONTRARY TO Section 11 (Possession of Dangerous Drugs), Article II, of
Republic Act No. 9165 (otherwise known as the "Comprehensive Dangerous
Drugs Act of 2002").41
The case was raffled to Regional Trial Court, Branch 28 of San Fernando City, La
Union.42 Cogaed and Dayao pleaded not guilty.43 The case was dismissed against
Dayao because he was only 14 years old at that time and was exempt from
criminal liability under the Juvenile Justice and Welfare Act of 2006 or Republic
Act No. 9344.44 Trial against Cogaed ensued. In a decision45 dated May 21, 2008,
the Regional Trial Court found Cogaed guilty. The dispositive portion of the
decision states:
WHEREFORE, the Court finds accused Victor Cogaed y Romana GUILTY beyond
reasonable doubt for Violation of Section 11, Article II of Republic Act No. 9165
(otherwise known as the "Comprehensive Dangerous Drugs Act of 2002") and
sentences him to suffer life imprisonment, and to pay a fine of one million pesos
(Php 1,000,000.00).46
The trial court judge initiallyfound Cogaeds arrest illegal considering that
"Cogaed at that time was not, at the moment of his arrest, committing a crime
nor was shown that hewas about to do so or that had just done so. He just
alighted from the passenger jeepney and there was no outward indication that
called for his arrest."47 Since the arrest was illegal, the warrantless search should
also be considered illegal.48 However, the trial court stated that notwithstanding

the illegality of the arrest, Cogaed "waived his right to object to such
irregularity"49 when "he did not protest when SPO1 Taracatac, after identifying
himself, asked him to open his bag."50
Cogaed appealed51 the trial courts decision.However, the Court of Appeals denied
his appeal and affirmed the trial courts decision.52 The Court of Appeals found
that Cogaed waived his right against warrantless searches when "[w]ithout any
prompting from SPO1 Taracatac, [he] voluntarily opened his bag."53 Hence, this
appeal was filed.
The following errors were assigned by Cogaed in his appellants brief:
I
THE TRIAL COURT GRAVELY ERRED IN ADMITTING THE SEIZED
DANGEROUS DRUGS AS EVIDENCE AGAINST THE ACCUSED-APPELLANT
DESPITE BEING THE RESULT OF AN UNLAWFUL WARRANTLESS SEARCH
AND SEIZURE.
II
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT DESPITE THE ARRESTING OFFICERS NON-COMPLIANCE
WITH THE REQUIREMENTS FOR THE PROPER CUSTODY OF SEIZED
DANGEROUS DRUGS UNDER REPUBLIC ACT NO. 9165.
III
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT DESPITE THE ARRESTING OFFICERS FAILURE TO PRESERVE
THE INTEGRITY AND EVIDENTIARY VALUE OF THE SEIZED DANGEROUS
DRUGS.54
For our consideration are the following issues: (1) whether there was a valid
search and seizure of marijuana as against the appellant; (2) whether the
evidence obtained through the search should be admitted; and (3) whether there
was enough evidence to sustain the conviction of the accused.
In view of the disposition of this case, we deem that a discussion with respect to
the requirements on the chain of custody of dangerous drugs unnecessary.55
We find for the accused.
II
The right to privacy is a fundamental right enshrined by implication in our
Constitution. It has many dimensions. One of its dimensions is its protection

through the prohibition of unreasonable searches and seizures in Article III,

Section 2 of the Constitution:
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 determinedpersonally 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.
This provision requires that the court examine with care and diligence whether
searches and seizures are "reasonable." As a general rule, searches conducted
with a warrant that meets all the requirements of this provision are reasonable.
This warrant requires the existence of probable cause that can only be
determined by a judge.56The existence of probable cause must be established by
the judge after asking searching questions and answers.57Probable cause at this
stage can only exist if there is an offense alleged to be committed. Also, the
warrant frames the searches done by the law enforcers. There must be a
particular description of the place and the things to be searched.58
However, there are instances when searches are reasonable even when
warrantless.59 In the Rules of Court, searchesincidental to lawful arrests are
allowed even without a separate warrant.60 This court has taken into account the
"uniqueness of 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."61 The known jurisprudential instances of reasonable
warrantless searches and seizures are:
1. Warrantless search incidental to a lawful arrest. . . ;
2. Seizure of evidence in "plain view," . . . ;
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. Consentedwarrantless search;
5. Customs search;
6. Stop and frisk; and
7. Exigent and emergency circumstances.62 (Citations omitted)

III
One of these jurisprudential exceptionsto search warrants is "stop and frisk".
"Stop and frisk" searches are often confused with searches incidental to lawful
arrests under the Rules of Court.63 Searches incidental to a lawful arrest require
that a crime be committed in flagrante delicto, and the search conducted within
the vicinity and withinreach by the person arrested is done to ensure that there
are no weapons, as well as to preserve the evidence.64
On the other hand, "stop and frisk"searches are conducted to prevent the
occurrence of a crime. For instance, the search in Posadas v. Court of
Appeals65 was similar "to a stop and frisk situation whose object is either to
determine the identity of a suspicious individual or to maintain the status
quomomentarily while the police officer seeks to obtain more
information."66 This court stated that the "stop and frisk" search should be used
"[w]hen dealing with a rapidly unfolding and potentially criminal situation in the
city streets where unarguably there is no time to secure . . . a search warrant."67
The search involved in this case was initially a "stop and frisk" search, but it did
not comply with all the requirements of reasonability required by the
Constitution.
"Stop and frisk" searches (sometimes referred to as Terrysearches68) are
necessary for law enforcement. That is, law enforcers should be given the legal
arsenal to prevent the commission of offenses. However, this should be balanced
with the need to protect the privacy of citizens in accordance with Article III,
Section 2 of the Constitution.
The balance lies in the concept of"suspiciousness" present in the situation where
the police officer finds himself or herself in. This may be undoubtedly based on
the experience ofthe police officer. Experienced police officers have personal
experience dealing with criminals and criminal behavior. Hence, they should
have the ability to discern based on facts that they themselves observe
whether an individual is acting in a suspicious manner. Clearly, a basic criterion
would be that the police officer, with his or her personal knowledge, must observe
the facts leading to the suspicion of an illicit act.
In Manalili v. Court of Appeals,69 the police officers were initially informed about
a place frequented by people abusing drugs.70 When they arrived, one of the
police officers saw a man with "reddish eyes and [who was] walking in a swaying
manner."71 The suspicion increased when the man avoided the police
officers.72 These observations led the police officers to conclude that the man was
high on drugs.73 These were sufficient facts observed by the police officers "to
stop[the] petitioner [and] investigate."74
In People v. Solayao,75 police officers noticed a man who appeared drunk.76 This
man was also "wearing a camouflage uniform or a jungle suit."77 Upon seeing the

police, the man fled.78 His flight added to the suspicion.79After stopping him, the
police officers found an unlicensed "homemade firearm"80 in his
possession.81 This court ruled that "[u]nder the circumstances, the government
agents could not possibly have procured a search warrant first."82 This was also a
valid search.
In these cases, the police officers using their senses observed facts that led to the
suspicion. Seeing a man with reddish eyes and walking in a swaying manner,
based on their experience, is indicative of a person who uses dangerous and illicit
drugs. A drunk civilian in guerrilla wear is probably hiding something as well.
The case of Cogaed was different. He was simply a passenger carrying a bag and
traveling aboarda jeepney. There was nothing suspicious, moreover, criminal,
about riding a jeepney or carrying a bag. The assessment of suspicion was not
made by the police officer but by the jeepney driver. It was the driver who
signalled to the police that Cogaed was "suspicious."
This is supported by the testimony of SPO1 Taracatac himself:
COURT:
Q So you dont know what was the content while it was still being carried by him
in the passenger jeep?
WITNESS:
A Not yet, Your Honor.83
SPO1 Taracatac likewise stated:
COURT:
Q If the driver did not make a gesture pointing to the accused, did you have
reason to believe that the accused were carrying marijuana?
WITNESS:
A No, Your Honor.84
The jeepney driver had to point toCogaed. He would not have been identified by
the police officers otherwise.
It is the police officer who should observe facts that would lead to a reasonable
degree of suspicion of a person. The police officer should not adopt the suspicion
initiated by another person. This is necessary to justify that the person suspected
be stopped and reasonably searched.85 Anything less than this would be an
infringementupon ones basic right to security of ones person and effects.

IV
Normally, "stop and frisk" searches do not give the law enforcer an opportunity to
confer with a judge to determine probable cause. In Posadas v. Court of
Appeals,86 one of the earliest cases adopting the "stop and frisk" doctrine in
Philippine jurisprudence, this court approximatedthe suspicious circumstances
as probable cause:
The probable causeis that when the petitioner acted suspiciously and attempted
to flee with the buri bag there was a probable cause that he was concealing
something illegal in the bag and it was the right and duty of the police officers to
inspect the same.87 (Emphasis supplied)
For warrantless searches, probable cause was defined as "a reasonable ground of
suspicionsupported by circumstances sufficiently strong in themselves to warrant
a cautious man to believe that the person accused is guilty of the offense with
which he is charged."88
Malacat v. Court of Appeals89 clarifies the requirement further. It does not have
to be probable cause,but it cannot be mere suspicion.90 It has to be a "genuine
reason"91 to serve the purposes of the "stop and frisk" exception:92
Other notable points of Terryare that while probable cause is not required to
conduct a "stop and frisk," it nevertheless holds that mere suspicion or a hunch
will not validate a "stop and frisk." A genuine reason must exist, in light of the
police officers experience and surrounding conditions, to warrant the belief that
the person detained has weapons concealed about him.93 (Emphasis supplied,
footnotes omitted)
In his dissent for Esquillo v. People,94 Justice Bersamin reminds us that police
officers must not rely on a single suspicious circumstance.95 There should be
"presence of more than oneseemingly innocent activity, which, taken together,
warranted a reasonable inference of criminal activity."96 The Constitution
prohibits "unreasonable searches and seizures."97 Certainly, reliance on only one
suspicious circumstance or none at all will not result in a reasonable search.98
There was not a single suspicious circumstance in this case, and there was no
approximation for the probable cause requirement for warrantless arrest. The
person searched was noteven the person mentioned by the informant. The
informant gave the name of Marvin Buya, and the person searched was Victor
Cogaed. Even if it was true that Cogaed responded by saying that he was
transporting the bag to Marvin Buya, this still remained only as one
circumstance. This should not have been enough reason to search Cogaed and his
belongings without a valid search warrant.
V

Police officers cannot justify unbridled searches and be shielded by this

exception, unless there is compliance with the "genuine reason" requirement and
that the search serves the purpose of protecting the public. As stated in Malacat:
[A] "stop-and-frisk" serves a two-fold interest: (1) the general interest of effective
crime prevention and detection, which underlies the recognition that a police
officer may, under appropriate circumstances and in an appropriate manner,
approach a person for purposes of investigating possible criminal behavior even
without probable cause; and (2) the more pressing interest of safety and selfpreservationwhich permit the police officer to take steps to assure himself that
the person with whom he deals is not armed with a deadly weapon that could
unexpectedly and fatally be used against the police officer.99 (Emphasis supplied)
The "stop and frisk" searchwas originally limited to outer clothing and for the
purpose of detecting dangerous weapons.100 As in Manalili,101 jurisprudence also
allows "stop and frisk" for cases involving dangerous drugs.
The circumstances of thiscase are analogous to People v. Aruta.102 In that case, an
informant told the police that a certain "Aling Rosa" would be bringing in drugs
from Baguio City by bus.103 At the bus terminal, the police officers prepared
themselves.104 The informant pointed at a woman crossing the street105 and
identified her as "Aling Rosa."106 The police apprehended "Aling Rosa," and they
alleged that she allowed them to look inside her bag.107The bag contained
marijuana leaves.108
In Aruta, this court found that the search and seizure conducted was
illegal.109 There were no suspicious circumstances that preceded Arutas arrest
and the subsequent search and seizure.110 It was only the informant that
prompted the police to apprehend her.111 The evidence obtained was not
admissible because of the illegal search.112 Consequently, Aruta was acquitted.113
Arutais almost identical to this case, except that it was the jeepney driver, not the
polices informant, who informed the police that Cogaed was "suspicious."
The facts in Arutaare also similar to the facts in People v. Aminnudin.114 Here, the
National Bureau ofInvestigation (NBI) acted upon a tip, naming Aminnudin as
somebody possessing drugs.115 The NBI waited for the vessel to arrive and
accosted Aminnudin while he was disembarking from a boat.116 Like in the case at
bar, the NBI inspected Aminnudins bag and found bundles of what turnedout to
be marijuana leaves.117 The court declared that the searchand seizure was
illegal.118 Aminnudin was acquitted.119
People v. Chua120 also presents almost the same circumstances. In this case, the
police had been receiving information that the accused was distributing drugs in
"different karaoke bars in Angeles City."121 One night, the police received
information that thisdrug dealer would be dealing drugs at the Thunder Inn
Hotel so they conducted a stakeout.122 A car "arrived and parked"123 at the

hotel.124The informant told the police that the man parked at the hotel was
dealing drugs.125 The man alighted from his car.126 He was carrying a juice
box.127 The police immediately apprehended him and discovered live ammunition
and drugs in his person and in the juice box he was holding.128
Like in Aruta, this court did not find anything unusual or suspicious about Chuas
situation when the police apprehended him and ruled that "[t]here was no
validstop-and-frisk."129
VI
None of the other exceptions to warrantless searches exist to allow the evidence
to be admissible.The facts of this case do not qualify as a search incidental to a
lawful arrest.
Rule 126, Section 13 of the Rules of Court allows for searches incidental to a
lawful arrest. For there to be a lawful arrest, there should be either a warrant of
arrest or a lawful warrantless arrest as enumerated in Rule 113, Section 5 of the
Rules of Court:
Section 5. Arrest without warrant; when lawful. A peace officer or a private
person may, withouta warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
The apprehension of Cogaed was not effected with a warrant of arrest. None of
the instances enumerated in Rule 113, Section 5 of the Rules of Court were
present whenthe arrest was made. At the time of his apprehension, Cogaed has
not committed, was not committing, or was about to commit a crime. As in
People v. Chua, for a warrantless arrest of in flagrante delictoto be affected, "two
elements must concur: (1) the person to bearrested must execute anovert act
indicating that he has just committed, is actually committing, or is attempting to
commit a crime; and (2) such overt act is done inthe presence or within the view
of the arresting officer."130 Both elements were missing when Cogaed was
arrested.131 There were no overt acts within plain view of the police officers that
suggested that Cogaed was in possession of drugs at that time.

Also, Cogaed was not an escapee prisoner that time; hence, he could not have
qualified for the last allowable warrantless arrest.
VII
There can be no valid waiver of Cogaeds constitutional rights even if we assume
that he did not object when the police asked him to open his bags. As this court
previously stated:
Appellants silence should not be lightly taken as consent to such search. The
implied acquiescence to the search, if there was any, could not have been more
than mere passive conformity given under intimidating or coercive circumstances
and is thus considered no consent at all within the purview of the constitutional
guarantee.132(Citations omitted) Cogaeds silence or lack of aggressive objection
was a natural reaction to a coercive environment brought about by the police
officers excessive intrusion into his private space. The prosecution and the police
carry the burden of showing that the waiver of a constitutional right is one which
is knowing, intelligent, and free from any coercion. In all cases, such waivers are
not to be presumed.
The coercive atmosphere created by the presence of the police officer can be
discerned again from the testimony of SPO1 Taracatac during cross-examination:
ATTY. BINWAG:
Q Now, Mr. witness, you claimed that you only asked them what are the contents
of their bags, is it not?
WITNESS:
A Yes, maam.
Q And then without hesitation and voluntarily they just opened their bags, is it
not?
A Yes, maam.
Q So that there was not any order from you for them to open the bags?
A None, maam.
Q Now, Mr. witness when you went near them and asked them what were the
contents ofthe bag, you have not seen any signs of hesitation or fright from them,
is it not?
A It seems they were frightened, maam.

Q But you actually [claimed] that there was not any hesitation from them in
opening the bags, is it not?
A Yes, maam but when I went near them it seems that they were
surprised.133 (Emphasis supplied)
The state of mind of Cogaed was further clarified with SPO1 Taracatacs
responses to Judge Florendos questions:
COURT:
....
Q Did you have eye contact with Cogaed?
A When I [sic] was alighting from the jeepney, Your Honor I observed that he was
somewhat frightened.1wphi1 He was a little apprehensive and when he was
already stepping down and he put down the bag I asked him, "whats that," and
he answered, "I dont know because Marvin only asked me to carry."134
For a valid waiver by the accused of his or her constitutional right, it is not
sufficient that the police officerintroduce himself or herself, or be known as a
police officer.1wphi1 The police officer must also inform the person to be
searched that any inaction on his orher part will amount to a waiver of any of his
or her objections that the circumstances do not amount to a reasonable search.
The police officer must communicate this clearly and in a language known to the
person who is about to waive his or her constitutional rights. There must be
anassurance given to the police officer that the accused fully understands his or
her rights. The fundamental nature of a persons constitutional right to privacy
requires no less.
VIII
The Constitution provides:
Any evidence obtained in violation of [the right against unreasonable searches
and seizures] shall be inadmissible for any purpose in any proceeding.135
Otherwise known as the exclusionary rule or the fruit of the poisonous tree
doctrine, this constitutional provision originated from Stonehill v. Diokno.136 This
rule prohibits the issuance of general warrants that encourage law enforcers to go
on fishing expeditions. Evidence obtained through unlawful seizures should be
excluded as evidence because it is "the only practical means of enforcing the
constitutional injunction against unreasonable searches and seizures."137 It
ensures that the fundamental rights to ones person, houses, papers, and effects
are not lightly infringed upon and are upheld.

Considering that the prosecution and conviction of Cogaed were founded on the
search of his bags, a pronouncement of the illegality of that search means that
there is no evidence left to convict Cogaed.
Drugs and its illegal traffic are a scourgeto our society. In the fight to eradicate
this menace, law enforcers should be equipped with the resources to be able to
perform their duties better. However, we cannot, in any way, compromise our
societys fundamental values enshrined in our Constitution. Otherwise, we will be
seen as slowlydismantling the very foundations of the society that we seek to
protect.
WHEREFORE, the decisions of the Regional Trial Court, Branch 28, San
Fernando City, La Union and of the Court of Appeals in CA-G.R. CR-HC No.
03394 are hereby REVERSEDand SET ASIDE. For lack of evidence to establish
his guilt beyond reasonable doubt, accused-appellant VICTOR COGAED Y
ROMANA is hereby ACQUITTED and ordered RELEASED from confinement
unless he is being heldfor some other legal grounds. No costs.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 182601

November 10, 2014

JOEY M. PESTILOS, DWIGHT MACAPANAS, MIGUEL GACES, JERRY

FERNANDEZ
and
RONALD
MUNOZ,Petitioners,
vs.
MORENO
GENEROSO
and
PEOPLE
OF
THE
PHILIPPINES, Respondents.
DECISION
BRION, J.:
We resolve the petition for review on certiorari under Rule 45 of the Rules of
Court challenging the decision1 dated January 21, 2008 and the resolution2 dated
April 17, 2008 of the Court of Appeals (CA) in CAG.R. SP No. 91541.
The appealed decision affirmed the Order dated March 16, 2005 of the Regional
Trial Court (RTC), Branch 96, Quezon City, denying Joey M. Pestilos, Dwight
Macapanas, Miguel Gaces, Jerry Fernandez, and Ronald Munoz's (petitioners)
Urgent Motion for Regular Preliminary Investigation, as well as their subsequent
motion for reconsideration.
The Antecedent Facts
The records of the case reveal that on February 20, 2005, at around 3: 15 in the
morning, an altercation ensued between the petitioners and Atty. Moreno
Generoso (Atty. Generoso) at Kasiyahan Street, Barangay Holy Spirit, Quezon
City where the petitioners and Atty. Generoso reside.3
Atty. Generoso called the Central Police District, Station 6 (Batas an Hills Police
Station) to report the incident.4Acting on this report, Desk Officer SPOl Primitivo
Monsalve (SPOJ Monsalve) dispatched SP02 Dominador Javier (SP02 Javier) to
go to the scene of the crime and to render assistance.5 SP02 Javier, together with
augmentation personnel from the Airforce, A2C Alano Sayson and Airman Ruel
Galvez, arrived at the scene of the crime less than one hour after the alleged
altercation6 and they saw Atty. Generoso badly beaten.7
Atty. Generoso then pointed to the petitioners as those who mauled him. This
prompted the police officers to "invite" the petitioners to go to Batasan Hills
Police Station for investigation.8 The petitioners went with the police officers to
Batasan Hills Police Station.9 At the inquest proceeding, the City Prosecutor of

Quezon City found that the petitioners stabbed Atty. Generoso with a bladed
weapon. Atty. Generoso fortunately survived the attack.10
In an Information dated February 22, 2005, the petitioners were indicted for
attempted murder allegedly committed as follows:
That on or about the 20th h day of February, 2005, in Quezon City, Philippines,
the said accused, conspiring together, confederating with and mutually helping
one another, with intent to kill, qualified with evident premeditation, treachery
and taking advantage of superior strength, did then and there, willfully,
unlawfully and feloniously commence the commission of the crime of Murder
directly by overt acts, by then and there stabbing one Atty. MORENO
GENEROSO y FRANCO, with a bladed weapon, but said accused were not able to
perform all the acts of execution which would produce the crime of Murder by
reason of some cause/s or accident other than their own spontaneous desistance,
that is, said complainant was able to parry the attack, to his damage and
prejudice.
CONTRARY TO LAW.11
On March 7, 2005, the petitioners filed an Urgent Motion for Regular
Preliminary Investigation12 on the ground that they had not been lawfully
arrested. They alleged that no valid warrantless arrest took place since the police
officers had no personal knowledge that they were the perpetrators of the crime.
They also claimed that they were just "invited" to the police station. Thus, the
inquest proceeding was improper, and a regular procedure for preliminary
investigation should have been performed pursuant to Rule 112 of the Rules of
Court.13
On March 16, 2005, the RTC issued its order denying the petitioners' Urgent
Motion for Regular Preliminary Investigation.14 The court likewise denied the
petitioners' motion for reconsideration.15
The petitioners challenged the lower court's ruling before the CA on a Rule 65
petition for certiorari. They attributed grave abuse of discretion, amounting to
lack or excess of jurisdiction, on the R TC for the denial of their motion for
preliminary investigation.16
The Assailed CA Decision
On January 21, 2008, the CA issued its decision dismissing the petition for lack of
merit.17 The CA ruled that the word "invited" in the Affidavit of Arrest executed
by SP02 Javier carried the meaning of a command. The arresting officer clearly
meant to arrest the petitioners to answer for the mauling of Atty. Generoso. The
CA also recognized that the arrest was pursuant to a valid warrantless arrest so
that an inquest proceeding was called for as a consequence. Thus, the R TC did

not commit any grave abuse of discretion in denying the Urgent Motion for
Regular Preliminary Investigation.
The CA saw no merit in the petitioners' argument that the order denying the
Urgent Motion for Regular Preliminary Investigation is void for failure to clearly
state the facts and the law upon which it was based, pursuant to Rule 16, Section
3 of the Revised Rules of Court. The CA found that the RTC had sufficiently
explained the grounds for the denial of the motion.
The petitioners moved for reconsideration, but the CA denied the motion in its
Resolution of April 17, 2008;18 hence, the present petition.
The Issues
The petitioners cited the following assignment of errors:
I.
WHETHER OR NOT THE PETITIONERS WERE VALIDLY ARRESTED
WITHOUT A WARRANT.
II.
WHETHER OR NOT THE PETITIONERS WERE LAWFULLY
ARRESTED WHEN THEY WERE MERELY INVITED TO THE POLICE
PRECINCT.
III.
WHETHER OR NOT THE ORDER DENYING THE MOTION FOR
PRELIMINARY INVESTIGATION IS VOID FOR FAILURE TO STATE
THE FACTS AND THE LAW UPON WHICH IT WAS BASED.
The petitioners primarily argue that they were not lawfully arrested. No arrest
warrant was ever issued; they went to the police station only as a response to the
arresting officers' invitation. They even cited the Affidavit of Arrest, which
actually used the word "invited. "
The petitioners also claim that no valid warrantless arrest took place under the
terms of Rule 112, Section 7 of the Revised Rules of Court. The incident happened
two (2) hours before the police officers actually arrived at the crime scene. The
police officers could not have undertaken a valid warrantless arrest as they had
no personal knowledge that the petitioners were the authors of the crime.
The petitioners additionally argue that the R TC' s Order denying the Urgent
Motion for Regular Preliminary Investigation is void because it was not properly
issued.

The Court's Ruling

We find the petition unmeritorious and thus uphold the RTC Order. The criminal
proceedings against the petitioners should now proceed.
It is unfortunate that the kind of motion that the petitioners filed has to reach
this Court for its resolution. The thought is very tempting that the motion was
employed simply to delay the proceedings and that the use of Rule 65 petition has
been abused.
But accepting things as they are, this delay can be more than compensated by
fully examining in this case the legalities surrounding warrantless warrants and
establishing the proper interpretation of the Rules for the guidance of the bench
and the bar. These Rules have evolved over time, and the present case presents to
us the opportunity to re-trace their origins, development and the current
applicable interpretation.
I. Brief history on warrantless arrests
The organic laws of the Philippines, specifically, the Philippine Bill of 1902,19 and
the 1935,20 197321 and 198722Constitutions all protect the right of the people to be
secure in their persons against unreasonable searches and seizures. Arrest falls
under the term "seizure. "23
This constitutional mandate is identical with the Fourth Amendment of the
Constitution of the United States. The Fourth Amendment traces its origins to the
writings of Sir Edward Coke24 and The Great Charter of the Liberties of England
(Magna Carta Libertatum), sealed under oath by King John on the bank of the
River Thames near Windsor, England on June 15, 1215.25 The Magna Carta
Libertatum limited the King of England's powers and required the Crown to
proclaim certain liberties26 under the feudal vassals' threat of civil war.27 The
declarations in Chapter 29 of the Magna Carta Libertatum later became the
foundational component of the Fourth Amendment of the United States
Constitution.28 It provides:
No freeman shall be taken, or imprisoned, or be disseised29 of his Freehold, or
Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed;
nor will we not pass upon him, nor condemn him, but by lawful Judgment of his
Peers, or by the Law of the Land, We will sell to no man, we will not deny or defer
to any man either Justice or Right.30 [Emphasis supplied]
In United States v. Snyder,31 the United States Supreme Court held that this
constitutional provision does not prohibit arrests, searches and seizures without
judicial warrant, but only those that are unreasonable.32 With regard to an arrest,
it is considered a seizure, which must also satisfy the test of reasonableness.33

In our jurisdiction, early rulings of the Court have acknowledged the validity of
warrantless arrests. The Court based these rulings on the common law of America
and England that, according to the Court, were not different from the Spanish
laws.34 These court rulings likewise justified warrantless arrests based on the
provisions of separate laws then existing in the Philippines.35
In 1905, the Court held in The United States v. Wilson36 that Section 3737 of Act
No. 183, or the Charter of Manila, defined the arresting officer's power to arrest
without a warrant, at least insofar as the City of Manila was concerned.
In The United States v. Vallejo, et al.,38 the Court held that in the absence of any
provisions under statutes or local ordinances, a police officer who held similar
functions as those of the officers established under the common law of England
and America, also had the power to arrest without a warrant in the Philippines.
The Court also ruled in The United States v. Santos39 that the rules on
warrantless arrest were based on common sense and reason.40 It further held that
warrantless arrest found support under the then Administrative Code41 which
directed municipal policemen to exercise vigilance in the prevention of public
offenses.
In The United States v. Fortaleza,42 the Court applied Rules 27, 28, 29 and 3043 of
the Provisional Law for the Application of the Penal Code which were provisions
taken from the Spanish Law.
These rules were subsequently established and incorporated in our Rules of Court
and jurisprudence. Presently, the requirements of a warrantless arrest are now
summarized in Rule 113, Section 5 which states that: Section 5. Arrest without
warrant; when lawful. - A peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed, and he has probable cause
to believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or is
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
In cases falling under paragraph (a) and (b) above, the person arrested without a
warrant shall be forth with delivered to the nearest police station or jail and shall
be proceeded against in accordance with section 7 of Rule 112.

A warrantless arrest under the circumstances contemplated under Section 5(a)

above has been denominated as one "in flagrante delicto," while that under
Section 5(b) has been described as a "hot pursuit" arrest.44
For purposes of this case, we shall focus on Section 5(b) the provision
applicable in the present case. This provision has undergone changes through the
years not just in its phraseology but also in its interpretation in our
jurisprudence.
We shall first trace the evolution of Section 5(b) and examine the applicable
American and Philippine jurisprudence to fully understand its roots and its
appropriate present application.
II. Evolution of Section 5(b), Rule 113
A. Prior to the 1940 Rules of Court
Prior to 1940, the Court based its rulings not just on American and English
common law principle on warrantless arrests but also on laws then existing in the
Philippines. In Fortaleza,45 the Court cited Rule 28 of the Provisional Law for the
Application of the Penal Code which provided that:
Judicial and administrative authorities have power to detain, or to cause to be
detained, persons whom there is reasonable ground to believe guilty of some
offense. It will be the duty of the authorities, as well as of their agents, to arrest:
First. Such persons as may be arrested under the provisions of rule 27.
Second. A person charged with a crime for which the code provides a penalty
greater than that of confinamiento.
Third. A person charged with a crime for which the code provides a penalty less
than that of confinamiento, if his antecedents or the circumstances of the case
would warrant the presumption that he would fail to appear when summoned by
the judicial authorities.
The provisions of the preceding paragraph shall not apply, however, to a
defendant who gives sufficient bond, to the satisfaction of the authority or agent
who may arrest him, and who it may reasonably be presumed will appear
whenever summoned by the judge or court competent to try him.
Fourth. A person coining under the provisions of the preceding paragraph may be
arrested, although no formal complaint has been filed against him, provided the
following circumstances are present:
First. That the authority or agent had reasonable cause to believe that an
unlawful act, amounting to a crime had been committed.

Second. That the authority or agent had sufficient reason to believe that the
person arrested participated in the commission of such unlawful act or crime."
[Emphasis and underscoring supplied]
In the same decision, the Court likewise cited Section 3 7 of the Charter of
Manila, which provided that certain officials, including police officers may, within
the territory defined in the law, pursue and arrest without warrant, any person
found in suspicious places or under suspicious circumstances, reasonably tending
to show that such person has committed, or is about to commit any crime or
breach of the peace.
In Santos,46 the Court cited Miles v. Weston,47 which ruled that a peace officer
may arrest persons walking in the street at night when there is reasonable ground
to suspect the commission of a crime, although there is no proof of a felony
having been committed.
The Court ruled in Santos that the arresting officer must justify that there was a
probable cause for an arrest without a warrant. The Court defined probable cause
as a reasonable ground of suspicion, supported by circumstances sufficiently
strong in themselves as to warrant a reasonable man in believing that the accused
is guilty. Besides reasonable ground of suspicion, action in good faith is another
requirement. Once these conditions are complied with, the peace officer is not
liable even if the arrested person turned out to be innocent.
Based on these discussions, it appears clear that prior to the 1940 Rules of Court,
it was not necessary for the arresting officer to first have knowledge that a crime
was actually committed. What was necessary was the presence of reasonably
sufficient grounds to believe the existence of an act having the characteristics of a
crime; and that the same grounds exist to believe that the person sought to be
detained participated in it. In addition, it was also established under the old court
rulings that the phrase "reasonable suspicion" was tantamount to probable cause
without which, the warrantless arrest would be invalid and the arresting officer
may be held liable for its breach.48
In The US. v. Hachaw,49 the Court invalidated the warrantless arrest of a
Chinaman because the arresting person did not state in what way the Chinaman
was acting suspiciously or the particular act or circumstance which aroused the
arresting person's curiosity.
It appears, therefore, that prior to the establishment in our Rules of Court of the
rules on warrantless arrests, the gauge for a valid warrantless arrest was the
arresting officer's reasonable suspicion (probable cause) that a crime was
committed and the person sought to be arrested has participated in its
commission. This principle left so much discretion and leeway on the part of the
arresting officer. However, the 1940 Rules of Court has limited this discretion.

B.
The
(Restricting
officer's
probable cause)

1940

Rules
the
determination

of

Court
arresting
of

Rules 27 and 28 of the Provisional Law for the Application of the Penal Code were
substantially incorporated in Section 6, Rule 109 of the 1940 Rules of Court as
follows:50
SEC. 6. Arrest without warrant - When lawful. - A peace officer or a private
person may, without a warrant, arrest a person:
(a) When the person to be arrested has committed, is actually committing,
or is about to commit an offense in his presence;
(b) When an offense has in fact been committed, and he has reasonable
ground to believe that the person to be arrested has committed it;
(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 and
underscoring supplied]
These provisions were adopted in toto in Section 6, Rule 113 of the 1964 Rules of
Court. Notably, the 1940 and 1964 Rules have deviated from the old rulings of the
Court. Prior to the 1940 Rules, the actual commission of the offense was not
necessary in determining the validity of the warrantless arrest. Too, the arresting
officer's determination of probable cause (or reasonable suspicion) applied both
as to whether a crime has been committed and whether the person to be arrested
has committed it.
However, under the 1940 and the 1964 Rules of Court, the Rules required that
there should be actual commission of an offense, thus, removing the element of
the arresting officer's "reasonable suspicion of the commission of an offense."
Additionally, the determination of probable cause, or reasonable suspicion, was
limited only to the determination of whether the person to be arrested has
committed the offense. In other words, the 1940 and 1964 Rules of Court
restricted the arresting officer's discretion in warrantless arrests under Section
6(b), Rule 113 of the 1964 Rules of Court.
C. The more restrictive 1985 Rules of Criminal Procedure
Section 6, Rule 113 of the 1964 Rules of Court again underwent substantial
changes and was re-worded and re-numbered when it became Section 5, Rule 113
of the 1985 Rules of Criminal Procedure, 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; 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. [Emphasis and
underscoring supplied]
As amended, Section 5(b ), Rule 113 of the 1985 Rules of Court retained the
restrictions introduced under the 1964 Rules of Court. More importantly,
however, it added a qualification that the commission of the offense should not
only have been "committed" but should have been "just committed." This limited
the arresting officer's time frame for conducting an investigation for purposes of
gathering information indicating that the person sought to be arrested has
committed the crime.
D. The Present Revised Rules of Criminal Procedure
Section 5(b ), Rule 113 of the 1985 Rules of Criminal Procedure was further
amended with the incorporation of the word "probable cause" as the basis of the
arresting officer's determination on whether the person to be arrested has
committed the crime.
Hence, as presently worded, Section 5(b), Rule 113 of the Revised Rules of
Criminal Procedure provides that:
When an offense has just been committed, and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be
arrested has committed it.
From the current phraseology of the rules on warrantless arrest, it appears that
for purposes of Section S(b ), the following are the notable changes: first, the
contemplated offense was qualified by the word "just," connoting immediacy; and
second, the warrantless arrest of a person sought to be arrested should be based
on probable cause to be determined by the arresting officer based on his personal

knowledge of facts and circumstances that the person to be arrested has

committed it.
It is clear that the present rules have "objectified" the previously subjective
determination of the arresting officer as to the (1) commission of the crime; and
(2) whether the person sought to be arrested committed the crime. According to
Feria, these changes were adopted to minimize arrests based on mere suspicion
or hearsay.51
As presently worded, the elements under Section 5(b), Rule 113 of the Revised
Rules of Criminal Procedure are: first, an offense has just been committed; and
second, the arresting officer has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed
it.
For purposes of this case, we shall discuss these elements separately below,
starting with the element of probable cause, followed by the elements that the
offense has just been committed, and the arresting officer's personal knowledge
of facts or circumstances that the person to be arrested has committed the crime.
i) First Element of Section 5(b), Rule 113 of the Revised Rules of Criminal
Procedure: Probable cause
The existence of "probable cause" is now the "objectifier" or the determinant on
how the arresting officer shall proceed on the facts and circumstances, within his
personal knowledge, for purposes of determining whether the person to be
arrested has committed the crime.
i.a) U.S. jurisprudence on probable cause in warrantless arrests
In Payton v. New York,52 the U.S. Supreme Court held that the Fourth
Amendment of the Federal Constitution does not prohibit arrests without a
warrant although such arrests must be reasonable. According to State v.
Quinn,53 the warrantless arrest of a person who was discovered in the act of
violating the law is not a violation of due process.
The U.S. Supreme Court, however indicated in Henry v. United States54 that the
Fourth Amendment limited the circumstances under which warrantless arrests
may be made. The necessary inquiry is not whether there was a warrant or
whether there was time to get one, but whether at the time of the arrest probable
cause existed. The term probable cause is synonymous to "reasonable cause" and
"reasonable grounds."55
In determining the existence of probable cause, the arresting officer should make
a thorough investigation and exercise reasonable judgment. The standards for
evaluating the factual basis supporting a probable cause assessment are not less
stringent in warrantless arrest situation than in a case where a warrant is sought

from a judicial officer. The probable cause determination of a warrantless arrest

is based on information that the arresting officer possesses at the time of the
arrest and not on the information acquired later.56
In evaluating probable cause, probability and not certainty is the determinant of
reasonableness under the Fourth Amendment. Probable cause involves
probabilities similar to the factual and practical questions of everyday life upon
which reasonable and prudent persons act. It is a pragmatic question to be
determined in each case in light of the particular circumstances and the
particular offense involved.57
In determining probable cause, the arresting officer may rely on all the
information in his possession, his fair inferences therefrom, including his
observations. Mere suspicion does not meet the requirements of showing
probable cause to arrest without warrant especially if it is a mere general
suspicion. Probable cause may rest on reasonably trustworthy information as well
as personal knowledge. Thus, the arresting officer may rely on information
supplied by a witness or a victim of a crime; and under the circumstances, the
arresting officer need not verify such information.58
In our jurisdiction, the Court has likewise defined probable cause in the context
of Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure.
In Abelita Ill v. Doria et al.,59 the Court held that 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.
i.b) Probable cause under Section 5(b), Rule 113 of the Revised Rules of Criminal
Procedure, distinguished from probable cause in preliminary investigations and
the judicial proceeding for the issuance of a warrant of arrest
The purpose of a preliminary investigation is to determine whether a crime has
been committed and whether there is probable cause to believe that the accused
is guilty of the crime and should be held for triat.60 In Buchanan v. Viuda de
Esteban,61 we defined probable cause as the existence of facts and circumstances
as would excite the belief in a reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person charged was guilty of the crime for
which he was prosecuted.

In this particular proceeding, the finding of the existence of probable cause as to

the guilt of the respondent was based on the submitted documents of the
complainant, the respondent and his witnesses.62
On the other hand, probable cause in judicial proceedings for the issuance of a
warrant of arrest is defined as the existence of such facts and circumstances that
would lead a reasonably discreet and prudent person to believe that an offense
has been committed by the person sought to be arrested.
Hence, before issuing a warrant of arrest, the judge must be satisfied that based
on the evidence submitted, there is sufficient proof that a crime has been
committed and that the person to be arrested is probably guilty thereof. At this
stage of the criminal proceeding, the judge is not yet tasked to review in detail the
evidence submitted during the preliminary investigation. It is sufficient that he
personally evaluates the evidence in determining probable cause63 to issue a
warrant of arrest.
In contrast, the arresting officer's determination of probable cause under Section
5(b), Rule 113 of the Revised Rules of Criminal Procedure is based on his personal
knowledge of facts or circumstances that the person sought to be arrested has
committed the crime. These facts or circumstances pertain to actual facts or raw
evidence, 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.
The probable cause to justify warrantless arrest ordinarily signifies a reasonable
ground of suspicion supported by circumstances sufficiently strong in themselves
to warrant a cautious man to believe that the person accused is guilty of the
offense with which he is charged,64 or an actual belief or reasonable ground of
suspicion, based on actual facts.65
It is clear therefore that the standard for determining "probable cause" is
invariable for the officer arresting without a warrant, the public prosecutor, and
the judge issuing a warrant of arrest. It is the existence of such facts and
circumstances that would lead a reasonably discreet and prudent person to
believe that an offense has been committed by the person sought to be arrested or
held for trial, as the case may be.
However, while the arresting officer, the public prosecutor and the judge all
determine "probable cause," within the spheres of their respective functions, its
existence is influenced heavily by the available facts and circumstance within
their possession. In short, although these officers use the same standard of a
reasonable man, they possess dissimilar quantity of facts or circumstances, as set
by the rules, upon which they must determine probable cause.

Thus, under the present rules and jurisprudence, the arresting officer should base
his determination of probable cause on his personal knowledge of facts and
circumstances that the person sought to be arrested has committed the crime; the
public prosecutor and the judge must base their determination on the evidence
submitted by the parties.
In other words, the arresting officer operates on the basis of more limited facts,
evidence or available information that he must personally gather within a limited
time frame.
Hence, in Santos,66 the Court acknowledged the inherent limitations of
determining probable cause in warrantless arrests due to the urgency of its
determination in these instances. The Court held that one should not expect too
much of an ordinary policeman. He is not presumed to exercise the subtle
reasoning of a judicial officer. Oftentimes, he has no opportunity to make proper
investigation but must act in haste on his own belief to prevent the escape of the
criminal.67
ii) Second and Third Elements of Section 5(b), Rule 113:
The
crime
has
just
been
committed/personal
knowledge
of
facts
or
circumstances
that
the
person
to be arrested has committed it
We deem it necessary to combine the discussions of these two elements as our
jurisprudence shows that these were usually taken together in the Court's
determination of the validity of the warrantless arrests that were made pursuant
to Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure.
In Posadas v. Ombudsman,68 the killing of Dennis Venturina happened on
December 8, 1994. It was only on December 11, 1994 that Chancellor Posadas
requested the NBI's assistance. On the basis of the supposed identification of two
(2) witnesses, the NBI attempted to arrest Francis Carlo Taparan and Raymundo
Narag three (3) days after the commission of the crime. With this set of facts, it
cannot be said that the officers have personal knowledge of facts or
circumstances that the persons sought to be arrested committed the crime.
Hence, the Court invalidated the warrantless arrest.
Similarly, in People v. Burgos,69 one Cesar Masamlok personally and voluntarily
surrendered to the authorities, stating that Ruben Burgos forcibly recruited him
to become a member of the NPA, with a threat of physical harm. Upon receipt of
this information, a joint team of PC-INP units was dispatched to arrest Burgos
who was then plowing the field. Indeed, the arrest was invalid considering that
the only information that the police officers had in effecting the arrest was the
information from a third person. It cannot be also said in this case that there was
certainty as regards the commission of a crime.

In People v. del Rosario,70 the Court held that the requirement that an offense has
just been committed means that there must be a large measure of immediacy
between the time the offense was committed and the time of the arrest. If there
was an appreciable lapse of time between the arrest and the commission of the
crime, a warrant of arrest must be secured.
The Court held that the arrest of del Rosario did not comply with these
requirements because he was arrested only a day after the commission of the
crime and not immediately thereafter. Additionally, the arresting officers were
not present and were not actual eyewitnesses to the crime. Hence, they had no
personal knowledge of facts indicating that the person to be arrested had
committed the offense. They became aware of del Rosario's identity as the driver
of the getaway tricycle only during the custodial investigation.
In People v. Cendana,71 the accused was arrested one (1) day after the killing of
the victim and only on the basis of information obtained from unnamed sources.
The unlawful arrest was held invalid.
In Rolito Go v. CA,72 the arrest of the accused six ( 6) days after the commission
of the crime was held invalid because the crime had not just been committed.
Moreover, the "arresting" officers had no "personal knowledge" of facts indicating
that the accused was the gunman who had shot the victim. The information upon
which the police acted came from statements made by alleged eyewitnesses to the
shooting; one stated that the accused was the gunman; another was able to take
down the alleged gunman's car's plate number which turned out to be registered
in the name of the accused's wife. That information did not constitute "personal
knowledge."
In People v. Tonog, Jr.,73 the warrantless arrest which was done on the same day
was held valid. In this case, the arresting officer had knowledge of facts which he
personally gathered in the course of his investigation, indicating that the accused
was one of the perpetrators.
In People v. Gerente,74 the policemen arrested Gerente only about three (3) hours
after Gerente and his companions had killed the victim. The Court held that the
policemen had personal knowledge of the violent death of the victim and of facts
indicating that Gerente and two others had killed him. The warrantless arrest was
held valid.
In People v. Alvario,75 the warrantless arrest came immediately after the arresting
officers received information from the victim of the crime. The Court held that
the personal knowledge of the arresting officers was derived from the information
supplied by the victim herself who pointed to Alvario as the man who raped her
at the time of his arrest. The Court upheld the warrantless arrest. In People v.
Jayson,76 there was a shooting incident. The policemen who were summoned to
the scene of the crime found the victim. The informants pointed to the accused as
the assailant only moments after the shooting. The Court held that the arresting

officers acted on the basis of personal knowledge of the death of the victim and of
facts indicating that the accused was the assailant. Thus, the warrantless arrest
was held valid.
In People v. Acol,77 a group held up the passengers in a jeepney and the
policemen immediately responded to the report of the crime. One of the victims
saw four persons walking towards Fort Bonifacio, one of whom was wearing his
jacket. The victim pointed them to the policemen. When the group saw the
policemen coming, they ran in different directions. The Court held that the arrest
was valid.
In Cadua v. CA,78 there was an initial report to the police concerning a robbery. A
radio dispatch was then given to the arresting officers, who proceeded to Alden
Street to verify the authenticity of the radio message. When they reached the
place, they met with the complainants who initiated the report about the robbery.
Upon the officers' invitation, the victims joined them in conducting a search of
the nearby area where the accused was spotted in the vicinity. Based on the
reported statements of the complainants, he was identified as a logical suspect in
the offense just committed. Hence, the arrest was held valid.
In Doria,79 the Court held that Section S(b ), Rule 113 of the 1985 Rules of
Criminal Procedure does not require the arresting officers to personally witness
the commission of the offense.
In this case, P/Supt. Doria alleged that his office received a telephone call from a
relative of Rosa Sia about a shooting incident. He dispatched a team headed by
SP03 Ramirez to investigate the incident. SP03 Ramirez later reported that a
certain William Sia was wounded while Judge Abelita III, who was implicated in
the incident, and his wife just left the place of the incident. P/Supt. Doria looked
for Abelita III and when he found him, he informed him of the incident report.
P/Supt. Doria requested Abelita III to go with him to the police headquarters as
he had been reported to be involved in the incident. Abelita III agreed but
suddenly sped up his vehicle and proceeded to his residence where P/Supt. Doria
caught him up as he was about to run towards his house.
The police officers saw a gun in the front seat of the vehicle beside the driver's
seat as Abelita III opened the door. They also saw a shotgun at the back of the
driver's seat. The police officers confiscated the firearms and arrested Abelita III.
The Court held that the petitioner's act of trying to get away, coupled with the
incident report which they investigated, were enough to raise a reasonable
suspicion on the part of the police authorities as to the existence of probable
cause. Based on these discussions, it appears that the Court's appreciation of the
elements that "the offense has just been committed" and ''personal knowledge of
facts and circumstances that the person to be arrested committed it" depended
on the particular circumstances of the case. However, we note that the element of
''personal knowledge of facts or circumstances" under Section S(b ), Rule 113 of
the Revised Rules of Criminal Procedure requires clarification.

The phrase covers facts or, in the alternative, circumstances. According to the
Black's Law Dictionary,80"circumstances are attendant or accompanying facts,
events or conditions. " Circumstances may pertain to events or actions within the
actual perception, personal evaluation or observation of the police officer at the
scene of the crime. Thus, even though the police officer has not seen someone
actually fleeing, he could still make a warrantless arrest if, based on his personal
evaluation of the circumstances at the scene of the crime, he could determine the
existence of probable cause that the person sought to be arrested has committed
the crime. However, the determination of probable cause and the gathering of
facts or circumstances should be made immediately after the commission of the
crime in order to comply with the element of immediacy.
In other words, the clincher in the element of ''personal knowledge of facts or
circumstances" is the required element of immediacy within which these facts or
circumstances should be gathered. This required time element acts as a safeguard
to ensure that the police officers have gathered the facts or perceived the
circumstances within a very limited time frame. This guarantees that the police
officers would have no time to base their probable cause finding on facts or
circumstances obtained after an exhaustive investigation.
The reason for the element of the immediacy is this - as the time gap from the
commission of the crime to the arrest widens, the pieces of information gathered
are prone to become contaminated and subjected to external factors,
interpretations and hearsay. On the other hand, with the element of immediacy
imposed under Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure,
the police officer's determination of probable cause would necessarily be limited
to raw or uncontaminated facts or circumstances, gathered as they were within a
very limited period of time. The same provision adds another safeguard with the
requirement of probable cause as the standard for evaluating these facts of
circumstances before the police officer could effect a valid warrantless arrest.
In light of the discussion above on the developments of Section 5(b), Rule 113 of
the Revised Rules of Criminal Procedure and our jurisprudence on the matter, we
hold that the following must be present for a valid warrantless arrest: 1) the crime
should have been just committed; and 2) the arresting officer's exercise of
discretion is limited by the standard of probable cause to be determined from the
facts and circumstances within his personal knowledge. The requirement of the
existence of probable cause objectifies the reasonableness of the warrantless
arrest for purposes of compliance with the Constitutional mandate against
unreasonable arrests.
Hence, for purposes of resolving the issue on the validity of the warrantless arrest
of the present petitioners, the question to be resolved is whether the
requirements for a valid warrantless arrest under Section 5(b), Rule 113 of the
Revised Rules of Criminal Procedure were complied with, namely: 1) has the
crime just been committed when they were arrested? 2) did the arresting officer
have personal knowledge of facts and circumstances that the petitioners

committed the crime? and 3) based on these facts and circumstances that the
arresting officer possessed at the time of the petitioners' arrest, would a
reasonably discreet and prudent person believe that the attempted murder of
Atty. Generoso was committed by the petitioners? We rule in the affirmative.
III. Application of Section S(b), Rule 113
of
Criminal
Procedure
in
the
present
valid warrantless arrest

of the Revised Rules

case:
there
was
a

We deem it necessary to review the records of the CA because it has

misapprehended the facts in its decision.81From a review of the records, we
conclude that the police officers had personal knowledge of facts or
circumstances upon which they had properly determined probable cause in
effecting a warrantless arrest against the petitioners. We note, however, that the
determination of the facts in the present case is purely limited to the resolution of
the issue on the validity of the warrantless arrests of the petitioners.
Based on the police blotter82 entry taken at 4:15 a.m. on February 20, 2005, the
date that the alleged crime was committed, the petitioners were brought in for
investigation at the Batasan Hills Police Station. The police blotter stated that the
alleged crime was committed at 3:15 a.m. on February 20, 2005, along Kasiyahan
St., Brgy. Holy Spirit, Quezon City.
The time of the entry of the complaint in the police blotter at 4:15 a.m., with Atty.
Generoso and the petitioners already inside the police station, would connote
that the arrest took place less than one hour from the time of the occurrence of
the crime. Hence, the CA finding that the arrest took place two (2) hours after the
commission of the crime is unfounded.
The arresting officers' personal observation of Atty. Generoso's bruises when they
arrived at the scene of the crime is corroborated by the petitioners' admissions
that Atty: Generoso indeed suffered blows from petitioner Macapanas and his
brother Joseph Macapanas,83 although they asserted that they did it in selfdefense against Atty. Generoso.
Atty. Generoso's bruises were also corroborated by the Medico-Legal
Certificate84 that was issued by East Avenue Medical Center on the same date of
the alleged mauling. The medical check-up of Atty. Generoso that was made
about 8:10 a.m. on the date of the incident, showed the following findings:
"Contusion Hematoma, Left Frontal Area; Abrasion, T6 area, right midclavicular
line periorbital hematoma, left eye; Abrasion, distal 3rd posterolateral aspect of
right forearm; Abrasion, 4th and fifth digit, right hand; Abrasion on area of ih rib
(L ant. Chest wall), tenderness on L peripheral area, no visible abrasion. In
addition, the attending physician, Dr. Eva P. Javier, diagnosed Atty. Generoso of
contusion hematoma, periorbital L., and traumatic conjunctivitis, o.s.

To summarize, the arresting officers went to the scene of the crime upon the
complaint of Atty. Generoso of his alleged mauling; the police officers responded
to the scene of the crime less than one (1) hour after the alleged mauling; the
alleged crime transpired in a community where Atty. Generoso and the
petitioners reside; Atty. Generoso positively identified the petitioners as those
responsible for his mauling and, notably, the petitioners85 and Atty.
Generoso86 lived almost in the same neighborhood; more importantly, when the
petitioners were confronted by the arresting officers, they did not deny their
participation in the incident with Atty. Generoso, although they narrated a
different version of what transpired.87
With these facts and circumstances that the police officers gathered and which
they have personally observed less than one hour from the time that they have
arrived at the scene of the crime until the time of the arrest of the petitioners, we
deem it reasonable to conclude that the police officers had personal knowledge of
facts or circumstances justifying the petitioners' warrantless arrests. These
circumstances were well within the police officers' observation, perception and
evaluation at the time of the arrest. These circumstances qualify as the police
officers' personal observation, which are within their personal knowledge,
prompting them to make the warrantless arrests.
Similar to the factual antecedents in Jayson,88 the police officers in the present
case saw Atty. Generoso in his sorry bloodied state. As the victim, he positively
identified the petitioners as the persons who mauled him; however, instead of
fleeing like what happened in Jayson, the petitioners agreed to go with the police
officers.
This is also similar to what happened in People v. Tonog, Jr.89 where Tonog did
not flee but voluntarily went with the police officers. More than this, the
petitioners in the present case even admitted to have been involved in the
incident with Atty. Generoso, although they had another version of what
transpired.
In determining the reasonableness of the warrantless arrests, it is incumbent
upon the courts to consider if the police officers have complied with the
requirements set under Section 5(b), Rule 113 of the Revised Rules of Criminal
Procedure, specifically, the requirement of immediacy; the police officer's
personal knowledge of facts or circumstances; and lastly, the propriety of the
determination of probable cause that the person sought to be arrested committed
the crime.
The records show that soon after the report of the incident occurred, SPOl
Monsalve immediately dispatched the arresting officer, SP02 Javier, to render
personal assistance to the victim.90 This fact alone negates the petitioners'
argument that the police officers did not have personal knowledge that a crime
had been committed - the police immediately responded and had personal
knowledge that a crime had been committed.1wphi1

To reiterate, personal knowledge of a crime just committed under the terms of

the above-cited provision, does not require actual presence at the scene while a
crime was being committed; it is enough that evidence of the recent commission
of the crime is patent (as in this case) and the police officer has probable cause to
believe based on personal knowledge of facts or circumstances, that the person to
be arrested has recently committed the crime.
Considering the circumstances of the stabbing, particularly the locality where it
took place, its occasion, the personal circumstances of the parties, and the
immediate on-the-spot investigation that took place, the immediate and
warrantless arrests of the perpetrators were proper. Consequently, the inquest
proceeding that the City Prosecutor conducted was appropriate under the
circumstances.
IV. The term "invited" in the
mean as an authoritative command

Affidavit

of

Arrest

is

construed

to

After the resolution of the validity of the warrantless arrest, the discussion of the
petitioners' second issue is largely academic. Arrest is defined as the taking of a
person into custody in order that he may be bound to answer for the commission
of an offense. An arrest is made by an actual restraint of the person to be
arrested, or by his submission to the custody of the person making the
arrest.91 Thus, application of actual force, manual touching of the body, physical
restraint or a formal declaration of arrest is not required. It is enough that there
be an intention on the part of one of the parties to arrest the other and the intent
of the other to submit, under the belief and impression that submission is
necessary.92
Notwithstanding the term "invited" in the Affidavit of Arrest,93 SP02 Javier could
not but have the intention of arresting the petitioners following Atty. Generoso' s
account. SP02 Javier did not need to apply violent physical restraint when a
simple directive to the petitioners to follow him to the police station would
produce a similar effect. In other words, the application of actual force would
only be an alternative if the petitioners had exhibited resistance.
To be sure, after a crime had just been committed and the attending policemen
have acquired personal knowledge of the incidents of the crime, including the
alleged perpetrators, the arrest of the petitioners as the perpetrators pointed to
by the victim, was not a mere random act but was in connection with a particular
offense. Furthermore, SP02 Javier had informed the petitioners, at the time of
their arrest, of the charges against them before taking them to Batasan Hills
Police Station for investigation.94
V.
The
Order
investigation is valid

denying

the

motion

for

preliminary

In their last ditch attempt at avoidance, the petitioners attack the R TC Order
denying the petitioners' urgent motion for regular preliminary investigation for
allegedly having been issued in violation of Article VIII, Section 14 of the 1987
Constitution95 and Rule 16, Section 3 of the Revised Rules of Court.96
The RTC, in its Order dismissing the motion, clearly states that the Court is not
persuaded by the evidentiary nature of the allegations in the said motion of the
accused. Aside from lack of clear and convincing proof, the Court, in the exercise
of its sound discretion on the matter, is legally bound to pursue and hereby gives
preference to the speedy disposition of the case."
We do not see any taint of impropriety or grave abuse of discretion in this Order.
The RTC, in resolving the motion, is not required to state all the facts found in the
record of the case. Detailed evidentiary matters, as the RTC decreed, is best
reserved for the full-blown trial of the case, not in the preliminary incidents
leading up to the trial.
Additionally, no less than the Constitution itself provides that it is the decision
that should state clearly and distinctly the facts and the law on which it is based.
In resolving a motion, the court is only required to state clearly and distinctly the
reasons therefor. A contrary system would only prolong the proceedings, which
was precisely what happened to this case. Hence, we uphold the validity of the
RTC's order as it correctly stated the reason for its denial of the petitioners'
Urgent Motion for Regular Preliminary Investigation. WHEREFORE, premises
considered, we hereby DENY the petition, and hereby AFFIRM the decision
dated January 21, 2008 and the resolution dated April 17, 2008 of the Court of
Appeals in CA-G.R. SP No. 91541. The City Prosecutor of Quezon City is hereby
ORDERED to proceed with the criminal proceedings against the petitioners.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 200748

July 23, 2014

JAIME
D.
DELA
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

CRUZ, Petitioner,

DECISION
SERENO, CJ:
This is a Petition for Review on Certiorari, filed by petitioner Jaime D. dela Cruz,
from the Decision1 dated 22 June 2011 issued by the Twentieth Division of the
Court of Appeals (CA) and Resolution2 dated 2 February 2012 issued by the
Former Twentieth Division of the CA in CA-G.R. C.R. No. 00670.
THE ANTECEDENT FACTS
Petitioner Jaime D. dela Cruz was charged with violation of Section 15, Article II
of Republic Act No. (R.A.) 9165, or The Comprehensive Dangerous Drugs Act of
2002, by the Graft Investigation and Prosecution Officer of the Office of the
Ombudsman - Visayas, in an Information3 dated 14 February 2006, which reads:
That on or about the 31st day of January 2006, at Cebu City, Philippines, and
within the jurisdiction of this Honorable Court, the abovenamed accused, JAIME
D. DE LA CRUZ, a public officer, having been duly appointed and qualified to
such public position as Police Officer 2 of the Philippine National Police (PNP)
assigned in the Security Service Group of the Cebu City Police Office, after having
beenarrested by agents of the National Bureau of Investigation (NBI) in an
entrapment operation, was found positive for use of METHAMPHETAMINE
HYDROCHLORIDEcommonly known as "Shabu", the dangerous drug after a
confirmatory test conducted on said accused.
CONTRARY TO LAW.
When arraigned, petitioner, assisted by counsel de parte, pleaded not guilty to the
charge. The records do not reveal whether De la Cruz was likewise charged for
extortion.
VERSION OF THE PROSECUTION

The evidence of the prosecution reveals that at 8:00 a.m. of 31 January 2006, the
agents and special investigators of the National Bureau of Investigation, Central
Visayas Regional Office (NBI-CEVRO) or simply NBI, received a Complaint from
Corazon Absin (Corazon) and Charito Escobido (Charito). The complainants
claimed that at 1:00 a.m. of that same day, Ariel Escobido (Ariel), the live-in
partner of Corazon and son of Charito, was picked up by several unknown male
persons believed to be police officers for allegedly selling drugs. An errand boy
gave a number to the complainants, and when the latter gave the number a ring,
they were instructed to proceed to the Gorordo Police Office located along
Gorordo Avenue, Cebu City. In the said police office, they met "James" who
demanded from them P100,000, later lowered to P40,000, in exchange for the
release of Ariel. After the meeting, the complainants proceeded to the NBICEVRO to file a complaint and narrate the circumstances of the meeting to the
authorities. While at the NBI-CEVRO, Charitoeven received calls supposedly
from "James" instructing her to bring the money as soon as possible.
The special investigators at the NBI-CEVRO verified the text messages received
by the complainants.1wphi1 A team was immediately formed to implement an
entrapment operation, which took place inside a Jollibee branch at the corner of
Gen. Maxilom and Gorordo Avenues, Cebu City. The officers were able to nab
Jaime dela Cruz by using a pre-marked 500 bill dusted with fluorescent powder,
which was made part of the amount demanded by "James" and handed by
Corazon. Petitioner was later brought to the forensic laboratory of the NBICEVRO where forensic examination was done by forensic chemist Rommel
Paglinawan. Petitioner was required to submit his urine for drug testing. It later
yielded a positive result for presence of dangerous drugs as indicated in the
confirmatory test result labeled as Toxicology (DangerousDrugs) Report No.
2006-TDD-2402 dated 16 February 2006.
VERSION OF THE DEFENSE
The defense presented petitioner as the lone witness. He denied the charges and
testified that while eating at the said Jollibee branch, he was arrested allegedly
for extortion by NBI agents. When he was at the NBI Office, he was required to
extract urine for drug examination, but he refused saying he wanted it to be done
by the Philippine National Police (PNP) Crime Laboratory and not by the NBI.
His request was, however, denied. He also requested to be allowed to call his
lawyer prior to the taking of his urine sample, to no avail.
THE RULING OF THE RTC
The Regional Trial Court (RTC) Branch 58 of Cebu City, in its Decision4 dated 6
June 2007, found the accused guilty beyond reasonable doubt of violating Section
15, Article II of R.A. 9165 and sentenced him to suffer the penalty of compulsory
rehabilitation for a period of not less than six (6) months at the Cebu Center for
the Ultimate Rehabilitation of Drug Dependents located at Salinas, Lahug, Cebu
City.5

Petitioner filed an appeal assigning as error the RTCs validation of the result of
the urine test despite its dubiousness having been admitted in spite of the lack of
legal basis for itsadmission. First, he alleges that the forensic laboratory
examination was conducted despite the fact that he was not assisted by counsel,
in clear violation of his constitutional right. Secondly, he was allegedly held guilty
beyond reasonable doubt notwithstanding the lack of sufficient basis to convict
him.
THE RULING OF THE CA
The CA found the appeal devoid of merit and affirmed the ruling of the RTC.
Petitioner filed a timely Motion for Reconsideration. He argued that the CA
overlooked prevailing jurisprudence, which states that drug testing conducted
under circumstancessimilar to his would violate a persons right to privacy. The
appellate court nevertheless denied the motion.
Petitioner thus filed the present Petition for Review on certiorari. He assigns as
errors the use of hearsay evidence as basis for his conviction and the questionable
circumstances surrounding his arrest and drug test.
Respondent, through the Office of the Solicitor General, filed its
Comment,6 saying that "petitioners arguments cannot be the subject of a petition
for review on certiorariunder Rule 45, as they involve questions of facts which
may not be the subject thereof; after his arraignment, he can no longer contest
the validity of his arrest, less so at this stage of the proceedings; his guilt has been
adequately established by direct evidence; and the manner in which the
laboratory examination was conducted was grounded on a valid and existing law.
THE ISSUE
We deem it proper to give due course to this Petition by confronting head-on the
issue of whether or not the drug test conducted upon the petitioner is legal.
OUR RULING
We declare that the drug testconducted upon petitioner is not grounded upon any
existing law or jurisprudence.
We gloss over petitioners non-compliance with the Resolution7 ordering him to
submit clearly legible duplicate originals or certified true copies of the assailed
Decision and Resolution. Petitioner was charged with use of dangerous drugs in
violation of the law, the pertinent provision of which reads:
Section 15. Use of Dangerous Drugs. A person apprehended or arrested, who is
found to be positive for use of any dangerous drug, after a confirmatory test, shall
be imposed a penalty of a minimum of six (6) months rehabilitation in a

government center for the first offense, subject to the provisions of Article VIII of
this Act. If apprehended using any dangerous drug for the second time, he/she
shall suffer the penalty of imprisonment ranging from six (6) years and one (1)
day to twelve (12) years and a fine ranging from Fifty thousand pesos
(P50,000.00) to Two hundred thousand pesos (P200,000.00): Provided,That
this Section shall not be applicable where the person tested is also found to have
in his/her possession such quantity of any dangerous drug provided for under
Section 11 of this Act, in which case the provisions stated therein shall apply.8
The RTC subsequently convicted petitioner, ruling that the following elements of
Section 15 were established: (1) the accused was arrested; (2) the accused was
subjected to drug test; and (3) the confirmatory test shows that he used a
dangerous drug.
Disregarding petitioners objection regarding the admissibility of the evidence,
the lower court also reasoned that "a suspect cannot invoke his right to counsel
when he is required to extract urine because, while he is already in custody, he is
not compelled to make a statement or testimony against himself. Extracting urine
from ones body is merely a mechanical act, hence, falling outside the concept of a
custodial investigation."
We find the ruling and reasoning of the trial court, as well as the subsequent
affirmation by the CA, erroneous on three counts.
The drug test in Section 15 does not cover persons apprehended or arrested for
any unlawful act, but only for unlawful acts listed under Article II of R.A. 9165.
First, "[a] person apprehended orarrested" cannot literally mean any person
apprehended or arrested for any crime.The phrase must be read in context and
understood in consonance with R.A. 9165. Section 15 comprehends persons
arrested or apprehended for unlawful acts listed under Article II of the law.
Hence, a drug test can be made upon persons who are apprehended or arrested
for, among others, the "importation,"9 "sale, trading, administration,
dispensation, delivery, distribution and transportation",10"manufacture"11 and
"possession"12 of dangerous drugs and/or controlled precursors and essential
chemicals; possession thereof "during parties, social gatherings or meetings"13 ;
being "employees and visitors of a den, dive or resort";14 "maintenance of a den,
dive or resort";15 "illegal chemical diversion of controlled precursors and essential
chemicals"16 ; "manufacture or delivery"17 or "possession"18 of equipment,
instrument, apparatus, and other paraphernalia for dangerous drugs and/or
controlled precursors and essential chemicals; possession of dangerous drugs
"during parties, social gatherings or meetings"19 ; "unnecessary"20 or
"unlawful"21 prescription thereof; "cultivation or culture of plantsclassified as
dangerous drugs or are sources thereof";22 and "maintenance and keeping of
original records of transactions on dangerous drugs and/orcontrolled precursors
and essential chemicals."23 To make the provision applicable to all persons

arrested or apprehended for any crime not listed under Article II is tantamount
to unduly expanding its meaning. Note thataccused appellant here was arrested
in the alleged act of extortion.
A charge for violation of Section 15 of R.A. 9165 is seen as expressive of the intent
of the law to rehabilitate persons apprehended or arrested for the unlawful acts
enumerated above instead of charging and convicting them of other crimes with
heavier penalties. The essence of the provision is more clearly illustrated in
People v. Martinez24 as follows:
On a final note, this Court takes the opportunity to be instructive on Sec. 11
(Possession of Dangerous Drugs) and Sec. 15 (Use of Dangerous Drugs) of R.A.
No. 9165, withregard to the charges that are filed by law enforcers. This Court
notes the practice of law enforcers of filing charges under Sec. 11 in cases where
the presence of dangerous drugs as basis for possession is only and solely in the
form of residue, being subsumed under the last paragraph of Sec. 11. Although
not incorrect, it would be more in keeping withthe intent of the law to file charges
under Sec. 15 instead in order to rehabilitate first time offenders of drug use,
provided thatthere is a positive confirmatory test result as required under Sec.
15.The minimum penalty under the last paragraph of Sec. 11 for the possession of
residue isimprisonment of twelve years and one day, while the penalty under Sec.
15 for first time offenders of drug use is a minimum of six months rehabilitation
in a government center. To file charges under Sec. 11 on the basis of residue alone
would frustrate the objective of the law to rehabilitate drug users and provide
them with an opportunity to recover for a second chance at life.
In the case at bench, the presence of dangerous drugs was only in the form of
residue on the drug paraphernalia, and the accused were found positive for use of
dangerous drugs. Granting that the arrest was legal, the evidence obtained
admissible, and the chain of custody intact, the law enforcers should have filed
charges under Sec. 15, R.A. No. 9165 or for use of dangerous drugs and, if there
was no residue at all, they should have been charged under Sec. 14 (Possession of
Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous
Drugs During Parties, Social Gatherings or Meetings). Sec. 14 provides that the
maximum penalty under Sec. 12(Possession of Equipment, Instrument,
Apparatus and Other Paraphernalia for Dangerous Drugs) shall be imposed on
any person who shall possess any equipment, instrument, apparatus and other
paraphernalia for dangerous drugs. Under Sec. 12, the maximum penalty is
imprisonment of four years and a fine of P50,000.00. In fact, under the same
section, the possession of such equipment, apparatus or other paraphernalia is
prima facieevidence that the possessor has used a dangerous drug and shall be
presumed to have violated Sec. 15.
In order to effectively fulfill the intent of the law to rehabilitate drug users, this
Court thus calls on law enforcers and prosecutors in dangerous drugs cases to
exercise proper discretion in filing charges when the presence of dangerous drugs
isonly and solely in the form of residue and the confirmatory test required under

Sec. 15 is positive for use of dangerous drugs.In such cases, to afford the accused
a chance to be rehabilitated, the filing of charges for or involving possession of
dangerous drugs should only be done when another separate quantity of
dangerous drugs, other than mere residue, is found in the possession of the
accused as provided for in Sec. 15. (Emphasis supplied)
Furthermore, making the phrase "a person apprehended or arrested" in Section
15 applicable to all persons arrested or apprehended for unlawful acts, not only
under R.A. 9165 but for all other crimes, is tantamount to a mandatory drug
testing of all persons apprehended or arrested for any crime. To overextend the
application of thisprovision would run counter to our pronouncement in Social
Justice Society v. Dangerous Drugs Board and Philippine Drug Enforcement
Agency,25 to wit:
x x x [M]andatory drug testing can never be random and 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 prosecutors 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. 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 6195. 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. (Emphasis supplied)
The drug test is not covered by allowable non-testimonial compulsion.
We find that petitioner never raisedthe alleged irregularity of his arrest before his
arraignment and raises the issue only now before this tribunal; hence, he is
deemed to have waived his right to question the validity of his arrest curing
whatever defect may have attended his arrest.26 However, "a waiver of an illegal
warrantless arrest does not mean a waiver of the inadmissibility of evidence
seized during an illegal warrantless arrest."27
We are aware of the prohibition against testimonial compulsion and the
allowable exceptions to such proscription. Cases where non-testimonial
compulsion has been allowed reveal, however, that the pieces of evidence
obtained were all material to the principal cause of the arrest.
The constitutional right of an accused against self-incrimination proscribes the
use of physical or moral compulsion to extort communications from the accused
and not the inclusion of his body in evidence when it may be material. Purely
mechanical acts are not included in the prohibition as the accused does not
thereby speak his guilt, hence the assistance and guiding hand ofcounsel is not

required. (People vs. Olvis, 238 Phil. 513 [1987]) The essence of the right against
selfincrimination is testimonial compulsion, that is, the giving of evidence against
himself through a testimonial act. (People vs. Casinillo, 213 SCRA 777 [1992];
People vs. Tranca, 235 SCRA 455 [1994]; People vs. Rondero, 378 Phil. 123
[1999]) Hence,it has been held that a woman charged with adultery may be
compelled to submit to physical examination to determine her pregnancy;
(Villaflor vs. Summers, 41 Phil. 62 [1920]) and an accused may be compelled to
submit to physical examination and to have a substance taken from his body for
medical determination as to whether he was suffering from gonorrhea which was
contracted by his victim;(U.S. vs. Tan Teng, 23 Phil. 145 [1912]) to expel
morphine from his mouth; (U.S. vs. Ong Siu Hong, 36 Phil. 735 [1917]) to have
the outline of his foot traced todetermine its identity with bloody footprints; (U.S.
vs. Salas, 25 Phil. 337 [1913]; U.S. vs. Zara, 42 Phil. 308 [1921]) and to be
photographed or measured, or his garments or shoes removed or replaced, or to
move his body to enable the foregoing things to be done.(People vs. Otadora, 86
Phil. 244 [1950])28(Emphasis supplied)
In the instant case, we fail to see howa urine sample could be material to the
charge of extortion.1wphi1 The RTC and the CA, therefore, both erred when
they held that the extraction of petitioners urine for purposes of drug testing was
"merely a mechanical act, hence, falling outside the concept of a custodial
investigation."
We note a case where a urine sample was considered as admissible. In Gutang v.
People,29 the petitioner therein and his companions were arrested in connection
with the enforcement of a search warrant in his residence. A PNP-NARCOM team
found and confiscated shabu materials and paraphernalias. The petitioner and
his companions in that case were also asked to give urine samples, which yielded
positive results. Later, the petitioner therein was found guilty of the crime of
illegal possession and use of prohibited drugs. Gutang claimed that the latters
urine sample was inadmissible in evidence, since it was derived in effect from an
uncounselled extrajudicial confession.
In the Gutang et al.case, the Court clarified that "what the Constitution prohibits
is the use of physical or moral compulsion to extort communication from the
accused, but not an inclusion of his body in evidence, when it may be material."
The situation in Gutangwas categorized as falling among the exemptions under
the freedom from testimonial compulsion since what was sought tobe examined
came from the body of the accused. The Court said:
This was a mechanical act the accused was made to undergo which was not meant
to unearth undisclosedfacts but to ascertain physical attributes determinable by
simple observation. In fact, the record shows that petitioner and his co-accused
were not compelled to give samples of their urine but they in fact voluntarily gave
the same when they were requested to undergo a drug test.

Assuming arguendothat the urine samples taken from the petitioner are
inadmissible in evidence, we agree with the trial court that the record is replete
with other pieces of credible evidence including the testimonial evidence of the
prosecution which point to the culpability of the petitioner for the crimes
charged.
We emphasize that the circumstances in Gutangare clearly different from the
circumstances of petitioner in the instant case.1awp++i1 First, Gutang was
arrested in relation to a drug case. Second, he volunteered to give his urine.
Third, there were other pieces of evidence that point to his culpability for the
crimes charged. In the present case, though, petitioner was arrested for extortion;
he resisted having his urine sample taken; and finally, his urine sample was the
only available evidencethat was used as basis for his conviction for the use of
illegal drugs.
The drug test was a violation of petitioners right to privacy and right against selfincrimination.
It is incontrovertible that petitioner refused to have his urine extracted and tested
for drugs. He also asked for a lawyer prior to his urine test. He was adamant in
exercising his rights, but all of his efforts proved futile, because he was still
compelled to submit his urine for drug testing under those circumstances.
The pertinent provisions in Article III of the Constitution are clear:
Section 2. The right of the people to be securein 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.
Section 17. No person shall be compelled to be a witness against himself.
In the face of these constitutional guarantees, we cannot condone drug testing of
all arrested persons regardless of the crime or offense for which the arrest is
being made.
While we express our commendation of law enforcement agents as they
vigorously track down offenders intheir laudable effort to curb the pervasive and
deleterious effects of dangerous drugs on our society, they must, however, be
constantly mindful of the reasonable limits of their authority, because it is not
unlikely that in their clear intent to purge society of its lawless elements, they
may be knowingly or unknowingly transgressing the protected rights of its
citizens including even members of its own police force.

WHEREFORE, premises considered, the assailed Decision dated 22 June 2011

issued by the Twentieth Division, and the Resolution dated 2 February 2012
issued by the former Twentieth Division of the Court of Appeals, in CA-G.R. C.R.
No. 00670 are SET ASIDE. Petitioner is hereby ACQUITTED.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 180661

December 11, 2013

GEORGE
ANTIQUERA
y
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

CODES, Petitioner,

DECISION
ABAD, J.:
This case is about a supposed warrantless arrest and a subsequent search
prompted by the police officers' chance sighting through an ajar door of the
accused engaged in pot session.
The Facts and the Case
On January 13, 2004 the second Assistant City Prosecutor of Pasay City charged
the accused George Codes Antiquera* and Corazon Olivenza Cruz with illegal
possession of paraphernalia for dangerous drugs 1 before the Regional Trial
Court (RTC) of Pasay City in Criminal Case 04-0100-CFM. 2 Since the accused
Cruz jumped bail, the court tried her in absentia. 3
The prosecution evidence shows that at around 4:45 a.m. of February 11, 2004,
PO1 Gregorio Recio, PO1 Laurence Cabutihan, P/Insp. Eric Ibon, PO1 Rodelio
Rania, and two civilian operatives on board a patrol car and a tricycle were
conducting a police visibility patrol on David Street, Pasay City, when they saw
two unidentified men rush out of house number 107-C and immediately boarded
a jeep.
Suspecting that a crime had been committed, the police officers approached the
house from where the men came and peeked through the partially opened door.
PO1 Recio and PO1 Cabutihan saw accused Antiquera holding an improvised
tooter and a pink lighter. Beside him was his live-in partner, Cruz, who was
holding an aluminum foil and an improvised burner. They sat facing each other
at the living room. This prompted the police officers to enter the house, introduce
themselves, and arrest Antiquera and Cruz.4
While inspecting the immediate surroundings, PO1 Cabutihan saw a wooden
jewelry box atop a table. It contained an improvised burner, wok, scissors, 10
small transparent plastic sachets with traces of white crystalline substance,
improvised scoop, and seven unused strips of aluminum foil. The police officers

confiscated all these and brought Antiquera and Cruz to the Drug Enforcement
Unit of the Philippine National Police in Pasay City for further investigation and
testing.5
A forensic chemical officer examined the confiscated drug paraphernalia and
found them positive for traces of methamphetamine hydrochloride or "shabu."6
Accused Antiquera gave a different story. He said that on the date and time in
question, he and Cruz were asleep in their house when he was roused by knocking
on the door. When he went to open it, three armed police officers forced
themselves into the house. One of them shoved him and said, "Dyan ka lang,
pusher ka." He was handcuffed and someone instructed two of the officers to go
to his room. The police later brought accused Antiquera and Cruz to the police
station and there informed them of the charges against them. They were shown a
box that the police said had been recovered from his house.7
On July 30, 2004 the RTC rendered a Decision8 that found accused Antiquera
and Cruz guilty of the crime charged and sentenced them to a prison term
ranging from six months and one day to two years and four months, and to pay a
fine of P10,000.00 each and the costs of the suit.
The RTC said that the prosecution proved beyond reasonable doubt that the
police caught accused Antiquera and Cruz in the act of using shabu and having
drug paraphernalia in their possession. Since no ill motive could be attributed to
PO1 Recio and PO1 Cabutihan, the court accorded full faith and credit to their
testimony and rejected the self-serving claim of Antiquera.
The trial court gave no weight to accused Antiqueras claim of illegal arrest, given
PO1 Recio and PO1 Cabutihans credible testimony that, prior to their arrest, they
saw Antiquera and Cruz in a pot session at their living room and in possession of
drug paraphernalia. The police officers were thus justified in arresting the two
without a warrant pursuant to Section 5, Rule 113 of the Rules of Criminal
Procedure.9
On appeal, the Court of Appeals (CA) rendered a Decision10 on September 21,
2007 affirming in full the decision of the trial court. The accused moved for
reconsideration but the CA denied it.11 The accused is now before this Court
seeking acquittal.
The Issue Presented
The issue in this case is whether or not the CA erred in finding accused Antiquera
guilty beyond reasonable doubt of illegal possession of drug paraphernalia based
on the evidence of the police officers that they saw him and Cruz in the act of
possessing drug paraphernalia.
Ruling of the Court

The prosecutions theory, upheld by both the RTC and the CA, is that it was a case
of valid warrantless arrest in that the police officers saw accused Antiquera and
Cruz through the door of their house, in the act of having a pot session. That valid
warrantless arrest gave the officers the right as well to search the living room for
objects relating to the crime and thus seize the paraphernalia they found there.
The prosecution contends that, since the seized paraphernalia tested positive
for shabu, they were no doubt used for smoking, consuming, administering,
injecting, ingesting, or introducing dangerous drug into the body in violation of
Section 12 of Republic Act 9165. That the accused tested negative for shabu, said
the prosecution, had no bearing on the crime charged which was for illegal
possession of drug paraphernalia, not for illegal use of dangerous drugs. The
prosecution added that even assuming that the arrest of the accused was
irregular, he is already considered to have waived his right to question the
validity of his arrest when he voluntarily submitted himself to the courts
jurisdiction by entering a plea of not guilty.12
Section 5(a), Rule 113 of the Rules of Criminal Procedure provides that a "peace
officer or a private person may, without a warrant, arrest a person when, in his
presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense." This is an arrest in flagrante delicto.13 The
overt act constituting the crime is done in the presence or within the view of the
arresting officer.14
But the circumstances here do not make out a case of arrest made in flagrante
delicto.
1. The police officers claim that they were alerted when they saw two unidentified
men suddenly rush out of 107 David Street, Pasay City. Since they suspected that
a crime had been committed, the natural thing for them to do was to give chase to
the jeep that the two fleeing men boarded, given that the officers were in a patrol
car and a tricycle. Running after the fleeing suspects was the more urgent task
but the officers instead gave priority to the house even when they heard no cry for
help from it.
2. Admittedly, the police officers did not notice anything amiss going on in the
house from the street where they stood. Indeed, even as they peeked through its
partially opened door, they saw no activity that warranted their entering it. Thus,
PO1 Cabutihan testified:
THE COURT:
Q By the way, Mr. Cabutihan, when you followed your companion towards the
open door, how was the door open? Was it totally open, or was it partially open?
A It was partially open Your Honor.

Q By how much, 1/3, 1/2? Only by less than one (1) foot?
A More or less 4 to 6 inches, Your Honor.
Q So how were you able to know, to see the interior of the house if
the door was only open by 6 inches? Or did you have to push the door?
A We pushed the door, Your Honor.
xxxx
Q Were you allowed to just go towards the door of the house, push its door and
peeped inside it, as a police officer?
A Kasi po naghinala po kami baka may
Q Are you not allowed to Are you not required to get a search warrant before
you can search the interior of the house?
A Yes, Your Honor.
Q What do you mean by yes? Would you first obtain a search warrant before
searching the interior of the house?
A Yes, Your Honor.
Q So why did you not a [sic] secure a search warrant first before you tried to
investigate the house, considering your admission that you suspected that there
was something wrong inside the house?
A Because we saw them that they were engaged in pot session, Your Honor.
Q But before you saw them, you just had to push the door wide open
to peep through its opening because you did not know what was
happening inside?
A Yes, Your Honor.15 (Emphasis supplied)
Clearly, no crime was plainly exposed to the view of the arresting officers that
authorized the arrest of accused Antiquera without warrant under the abovementioned rule. Considering that his arrest was illegal, the search and seizure
that resulted from it was likewise illegal.16 Consequently, the various drug
paraphernalia that the police officers allegedly found in the house and seized are
inadmissible, having proceeded from an invalid search and seizure. Since the
confiscated drug paraphernalia is the very corpus delicti of the crime charged, the
Court has no choice but to acquit the accused.17

One final note. The failure of the accused to object to the irregularity of his arrest
by itself is not enough to sustain his conviction. A waiver of an illegal warrantless
arrest does not carry with it a waiver of the inadmissibility of evidence seized
during the illegal warrantless arrest.18
WHEREFORE, the Court REVERSES and SETS ASIDE the Decision dated
September 21, 2007 and Resolution dated November 16, 2007 of the Court of
Appeals in CA-G.R. CR 28937 and ACQUITS the accused George
Antiquera y Codes of the crime of which he is charged for lack of evidence
sufficient to establish his guilt beyond reasonable doubt.1wphi1 The Court
further ORDERS the cancellation and release of the bail bond he posted for his
provisional liberty.
SO ORDERED.

Republic
SUPREME
Manila

of

the

Philippines
COURT

FIRST DIVISION
G.R. No. 198389

December 11, 2013

VIVENCIO
ROALLOS
y
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

TRILLANES, Petitioner,

RESOLUTION
REYES, J.:
Before this Court is a Petition for Review on Certiorari1under Rule 45 of the
Rules of Court seeking to annul and set aside the Decision2 dated April 29, 2011
and the Resolution3 dated August 19, 2011 of the Court of Appeals (CA) in CAG.R. CR No. 32192. The CA affirmed with modification the Decision4 dated July
26, 2007 of the Regional Trial Court (RTC) of Quezon City, Branch 88, finding
Vivencio Roallos y Trillanes (Roallos) guilty beyond reasonable doubt of the
offense of sexual abuse punished under Section 5(b), Article III of Republic Act
No. 7610 (R.A. No. 7610), otherwise known as the "Special Protection of Children
Against Abuse, Exploitation, and Discrimination Act."
The Facts

Roallos was charged in an Information5 for the crime of sexual abuse under
Section 5(b), Article III of R.A. No. 7610, docketed as Criminal Case No. Q-02108825 before the RTC, viz:
The undersigned accuses VIVENCIO ROALLOS Y TRILLANES of the crime of
Acts of Lasciviousness in relation to Sec. 5(b)[,] Art. III of R.A. 7610, committed
as follows:
That on or about the 15th day of April, 2002, in Quezon City, Philippines, the said
accused, with lewd design, by means of force and intimidation, did then and there
wilfully, unlawfully and feloniously commit acts of lasciviousness upon the
person of one [AAA]6, a minor, 15 years of age, by then and there mashing her
breast and kissing her cheek, against her will which act debases, degrades or
demeans the intrinsic worth and dignity of said [AAA] as a human being.
CONTRARY TO LAW.7
Upon arraignment, Roallos pleaded "not guilty" to the offense charged.8 On June
24, 2002, the pre-trial conference was deemed terminated. Trial on the merits
ensued thereafter.9
Roallos, a retired officer of the Armed Forces of the Philippines, was the
Executive Director of the Aguinaldo Vets and Associates Credit Cooperative
(AVACC). BBB, AAAs mother, worked as the secretary and treasurer of Roallos.
On April 15, 2002, at around 1:00 p.m., AAA went to BBBs office at Camp
Aguinaldo, Quezon City; BBB, however, was then out running office errands. AAA
decided to stay in her mothers office and wait for the latter to return. At that
time, two women were talking to Roallos inside the AVACC office.
AAA alleged that, after the two women left, Roallos went by the door of the office,
looked outside to see if anybody was around, and then locked it. He then
approached AAA and asked her if there was any pain bothering her; the latter
replied that her tooth ached. Thereupon, Roallos held AAAs hand and
intermittently pressed it. He then asked AAA if there is anything else aching in
her body. AAA said none. Roallos then placed his left hand on the table while his
right hand was on AAAs right shoulder. At this point, AAA was seated on a chair
without a backrest while Roallos was standing behind her. Roallos then slid his
hand towards AAAs right breast and mashed it. AAA asked Roallos why he is
touching her. Roallos ignored her. He then mashed AAAs left breast. AAA
shouted "Ano ba!," but Roallos still ignored her and, instead slid his hand
towards AAAs abdomen. AAA then stomped her feet and pushed her chair
towards Roallos. Roallos then left the office.
Thinking that her mother would soon return, AAA stayed inside the office.
However, after about ten minutes, Roallos returned to the office and approached
AAA. He then asked AAA if she was hungry, the latter told him that she would

just wait for BBB to return. Roallos then offered to give money to AAA for her to
buy food, but the latter refused the offer. AAA then felt Roallos body pressing
against her back. Thereafter, Roallos attempted to kiss AAA. AAA was unable to
escape as there was no space in front of her; she just turned her face to avoid his
kiss. He then held AAAs right cheek, pulled her face towards him, and kissed her
left cheek. AAA then stomped her feet, still trying to free herself from the grasp of
Roallos. Roallos then left the office. This time, AAA decided to stay outside the
AVACC office and wait for her mother to return.
Upon her return to the office, BBB saw AAA crying. She asked AAA why she was
crying. AAA then relayed what Roallos did to her. BBB then confronted Roallos
about the incident. Roallos, however, denied having done anything to AAA. BBB
and AAA thereafter left the office. However, BBB saw that Roallos was following
them. Fearing that Roallos would do something to harm them, BBB and AAA
immediately entered the office of the Department of National Defense (DND) in
Camp Aguinaldo. They were then advised by the employees therein to go to
DNDs legal department office, where they were advised to report the incident to
the police authorities.
AAA and BBB went to the police station where a report regarding the incident
was prepared. They then referred the report to the provost marshal for proper
coordination and to effect the arrest of the accused. Thereafter, the police and the
provost marshal brought Roallos to the police station for investigation.
In his defense, Roallos denied that he molested AAA. He claimed that, on the
date of the incident, he merely stayed with AAA in the AVACC office while the
latter waited for her mother; that he went out of the office twice to meet clients of
AVACC. Roallos further claimed that his arrest was illegal since the same was
effected sans any warrant of arrest. He likewise averred that he was not informed
of his rights when he was arrested nor was he made to undergo any preliminary
investigation.
On July 26, 2007, the RTC rendered a Decision10 finding Roallos guilty beyond
reasonable doubt of violation of Section 5(b), Article III of R.A. No. 7610, viz:
WHEREFORE, premises considered, accused VIVENCIO ROALLOS Y
TRILLANES is hereby found GUILTY beyond reasonable doubt of violation of
Section 5 (b) of Republic Act 7610 and he is hereby sentenced to an
indeterminate penalty of EIGHT (8) YEARS and ONE (1) DAY of prision mayor
medium as minimum to SEVENTEEN (17) YEARS FOUR (4) MONTHS and ONE
(1) DAY of reclusion temporal maximum as maximum; to indemnify [AAA] in the
amount of [P]20,000.00 by way of moral damages; and pay the fine of
[P]15,000.00.
SO ORDERED.11

Roallos Amended Motion for Reconsideration12 was denied by the RTC in its
Order13 dated June 30, 2008.
On appeal, the CA rendered the Decision dated April 29, 2011 which affirmed the
RTC Decision dated July 26, 2007, albeit with the modification that the awards of
moral damages and civil indemnity were both increased toP50,000.00.
Roallos sought a reconsideration of the CA Decision dated April 29, 2011,14 but it
was likewise denied by the CA in its Resolution15 dated August 19, 2011.
In support of the instant petition, Roallos claims that the CA erred in affirming
his conviction considering that the Information filed against him was defective
since it charged two crimes, i.e., acts of lasciviousness under Article 336 of the
Revised Penal Code (RPC) and sexual abuse under Section 5(b), Article III of R.A.
No. 7610. He further argues that he was denied due process as he was not made
to undergo a preliminary investigation. Roallos also asserts that his arrest was
illegal considering that the same was effected sans any warrant of arrest.
Moreover, he alleges that the charge against him should have been dismissed
considering the unreasonable delay in the prosecution of the case.
Further, Roallos avers that the charge against him was defective since neither
AAA nor BBB signed the Information that was filed against him and, thus,
Roallos claims that the prosecutor had no authority to file the said Information
and, accordingly, the charge against him was defective.
Furthermore, Roallos alleges that the offense of sexual abuse under Section 5(b),
Article III of R.A. No. 7610 only applies when the victim is a child engaged in
prostitution or when they indulge in lascivious conduct due to the coercion of an
adult or a syndicate. Thus, he claims that he is not liable for sexual abuse under
Section 5(b), Article III of R.A. No. 7610 since AAA is not a child engaged in
prostitution. In any case, he avers that the evidence adduced by the prosecution is
not sufficient to establish his guilt beyond reasonable doubt of the offense
charged.
Issue
Essentially, the issue presented for the Courts resolution is whether the CA erred
in affirming Roallos conviction for the offense of sexual abuse under Section
5(b), Article III of R.A. No. 7610.
The Courts Ruling
The petition is bereft of any merit.
First, Roallos claim that the Information filed against him is duplicitous as it
charged him with the commission of two crimes is plainly untenable. The
designation of the crime in the Information is clear Roallos was charged with

the crime of acts of lasciviousness in relation to Section 5(b), Article III of R.A.
No. 7610.
The mention of the phrase "acts of lasciviousness" in the Information does not
mean that Roallos was charged with the felony of acts of lasciviousness under
Article 336 of the RPC. The charge of acts of lasciviousness against Roallos is
specifically delimited to that committed in relation to Section 5(b), Article III of
R.A. No. 7610.
In any case, "the real nature of the criminal charge is determined not from the
caption or preamble of the information, or from the specification of the provision
of law alleged to have been violated, which are mere conclusions of law, but by
the actual recital of the facts in the complaint or information."16
The recital of the ultimate facts and circumstances in the Information that was
filed against Roallos clearly makes out a case for the offense of sexual abuse
under Section 5(b), Article III of R.A. No. 7610. The elements of sexual abuse
under Section 5(b), Article III of R.A. No. 7610 are as follows:
1. The accused commits the act of sexual intercourse or lascivious conduct[;]
2. The [said] act is performed with a child exploited in prostitution or subjected
to other sexual abuse[; and]
3. The child, whether male or female, is below 18 years of age.17
(Emphasis supplied)
The Information that was filed against Roallos alleged that he committed
lascivious acts towards AAA, i.e., that he mashed the breasts and kissed the
cheeks of the latter. It likewise alleged that AAA, at the time she was subjected to
sexual abuse by Roallos, was only 15 years of age. Clearly, all the elements of
sexual abuse under Section 5(b), Article III of R.A. No. 7610 are set out in the
Information that was filed against Roallos.
In this regard, the Court likewise finds that the CA and the RTC did not err in
finding Roallos criminally liable for violation of Section 5(b), Article III of R.A.
No. 7610. It is undisputed that AAA was only 15 years old at the time of the
incident. Further, the prosecution was able to establish beyond reasonable doubt
the committed lascivious conduct towards AAA, who is a child subjected to sexual
abuse within the purview of Section 5(b), Article III of R.A. No. 7610.
That Roallos did in fact commit lascivious conduct towards AAA is a finding of
fact by the lower courts, which this Court cannot simply disregard. In a criminal
case, factual findings of the trial court are generally accorded great weight and
respect on appeal, especially when such findings are supported by substantial
evidence on record. It is only in exceptional circumstances, such as when the trial

court overlooked material and relevant matters, that this Court will re-calibrate
and evaluate the factual findings of the court below.18 The Court finds no reason
to overturn the factual findings as the lower courts in this case.
Roallos assertion that he is not liable for sexual abuse under Section 5(b), Article
III of R.A. No. 7610 since AAA is not a child engaged in prostitution is plainly
without merit. "[T]he law covers not only a situation in which a child is abused
for profit but also one in which a child, through coercion or intimidation, engages
in any lascivious conduct. The very title of Section 5, Article III (Child
Prostitution and Other Sexual Abuse) of R.A. No. 7610 shows that it applies not
only to a child subjected to prostitution but also to a child subjected to other
sexual abuse. A child is deemed subjected to "other sexual abuse" when he or she
indulges in lascivious conduct under the coercion or influence of any adult."19
Second, Roallos claim that he was denied due process since he was arrested
without any warrant of arrest and that he was not afforded a preliminary
investigation is likewise untenable. In Miclat, Jr. v. People,20 the Court
emphasized that the accused is estopped from assailing any irregularity attending
his arrest should he fail to move for the quashal of the information against him
on this ground prior to arraignment, viz:
At the outset, it is apparent that petitioner raised no objection to the
irregularity of his arrest before his arraignment. Considering this and
his active participation in the trial of the case, jurisprudence dictates
that petitioner is deemed to have submitted to the jurisdiction of the
trial court, thereby curing any defect in his arrest. An accused is
estopped from assailing any irregularity of his arrest if he fails to raise this issue
or to move for the quashal of the information against him on this ground before
arraignment. Any objection involving a warrant of arrest or the procedure by
which the court acquired jurisdiction over the person of the accused must be
made before he enters his plea; otherwise, the objection is deemed
waived.21 (Citations omitted and emphasis ours)
Similarly, in Villarin v. People,22 the Court stressed that the absence of a proper
preliminary investigation must be timely raised. The accused is deemed to have
waived his right to a preliminary investigation by entering his plea and actively
participating in the trial without raising the lack of a preliminary investigation.
Thus:
Moreover, the absence of a proper preliminary investigation must be
timely raised and must not have been waived. This is to allow the trial
court to hold the case in abeyance and conduct its own investigation or require
the prosecutor to hold a reinvestigation, which, necessarily "involves a reexamination and re-evaluation of the evidence already submitted by the
complainant and the accused, as well as the initial finding of probable cause
which led to the filing of the Informations after the requisite preliminary
investigation."

Here, it is conceded that Villarin raised the issue of lack of a preliminary

investigation in his Motion for Reinvestigation. However, when the Ombudsman
denied the motion, he never raised this issue again. He accepted the
Ombudsmans verdict, entered a plea of not guilty during his arraignment and
actively participated in the trial on the merits by attending the scheduled
hearings, conducting cross-examinations and testifying on his own behalf. It was
only after the trial court rendered judgment against him that he once again
assailed the conduct of the preliminary investigation in the Motion for
Reconsideration. Whatever argument Villarin may have regarding the alleged
absence of a preliminary investigation has therefore been mooted. By entering
his plea, and actively participating in the trial, he is deemed to have
waived his right to preliminary investigation.23 (Citations omitted and
emphases ours)
It is undisputed that, at the time of his arraignment, Roallos did not raise any
objection to the supposed illegality of his arrest and the lack of a proper
preliminary investigation. Indeed, he actively participated in the proceedings
before the RTC. Thus, he is deemed to have waived any perceived irregularity in
his arrest and has effectively submitted himself to the jurisdiction of the RTC. He
is likewise deemed to have waived his right to preliminary investigation.
Third, Roallos failed to substantiate his claim that his right to speedy trial was
violated. The right to speedy trial is violated only when the proceedings are
attended by vexatious, capricious and oppressive delays. In the determination of
whether said right has been violated, particular regard must be taken of the facts
and circumstances peculiar to each case. The conduct of both the prosecution and
defendant, the length of the delay, the reasons for such delay, the assertion or
failure to assert such right by the accused, and the prejudice caused by the delay
are the factors to consider and balance.24 In order for the government to sustain
its right to try the accused despite a delay, it must show two things: first, that the
accused suffered no serious prejudice beyond that which ensued from the
ordinary and inevitable delay; and second, that there was no more delay that is
reasonably attributable to the ordinary processes of justice.25
As aptly ruled by the CA, Roallos failed to show that the proceedings below were
attended by vexatious, capricious, and oppressive delays. The postponements
sought for by the prosecution did not, in any way, seriously prejudice Roallos. If
at all, the delay in the proceedings below is only attributable to the ordinary
processes of justice.
Lastly, that neither AAA nor BBB signed the Information filed against Roallos
would not render the charge against the latter defective; it does not signify that
they did not conform to the filing of the Information against Roallos. AAA and
BBB vigorously pursued the indictment against Roallos. Likewise, contrary to
Roallos claim, AAA executed a complaint-affidavit for the indictment of
Roallos.26 The foregoing circumstances clearly indicate the conformity of both
AAA and BBB to the charge against Roallos.

For acts of lasciviousness performed on a child under Section 5(b), Article III of
R.A. No. 7610, the penalty prescribed is reclusion temporal in its medium period
to reclusion perpetua. Notwithstanding that R.A. No. 7610 is a special law,
Roallos may enjoy the benefits of the Indeterminate Sentence Law. Applying the
Indeterminate Sentence Law, Roallos shall be entitled to a minimum term to be
taken within the range of the penalty next lower to that prescribed by R.A. No.
7610. The penalty next lower in degree is prision mayor medium to reclusion
temporalminimum, the range of which is from eight (8) years and one (1) day to
fourteen (14) years and eight (8) months. On the other hand, the maximum term
of the penalty should be taken from the penalty prescribed under Section 5(b),
Article III of R.A. No. 7610, which is reclusion temporal in its medium period
to reclusion perpetua, the range of which is from fourteen (14) years, eight (8)
months and one (1) day to reclusion perpetua. The minimum, medium and
maximum term of the same is as follows: minimum fourteen (14) years, eight
(8) months and one (1) day to seventeen (17) years and four (4) months; medium
seventeen (17) years, four (4) months and one (1) day to twenty (20) years; and
maximum reclusion perpetua.27
Considering that there are neither aggravating nor mitigating circumstances
extant in this case, both the RTC and the CA correctly imposed on Roallos the
indeterminate penalty of eight (8) years and one (1) day of prision mayormedium
as the minimum term to seventeen (17) years, four (4) months and one (1) day
of reclusion temporal as the maximum term. The Court likewise upholds the fine
imposed by the lower courts in the amount of P15,000.00.
Nevertheless, the Court hereby modifies the amount of moral damages and civil
indemnity awarded by the CA. The RTC directed Roallos to pay AAA moral
damages in the amount of P20,000.00. The CA increased the amount of moral
damages awarded by the RTC to P50,000.00 and imposed an additional award
for civil indemnity in the amount of P50,000.00. In line with recent
jurisprudence,28 the Court deems it proper to reduce the award of moral damages
from P50,000.00 to P15,000.00, as well as the award of civil indemnity
from P50,000.00 to P20,000.00.
In addition, and in conformity with current policy, the Court imposes interest on
all monetary awards for damages at the rate of six percent ( 6%) per annum from
the date of finality of this Resolution until fully paid.29
WHEREFORE, in consideration of the foregoing disquisitions, the petition
is DENIED. The Decision dated April 29, 2011 and the Resolution dated August
19, 2011 of the Court of Appeals in CA-G.R. CR No. 32192 are
herebyAFFIRMED
WITH
MODIFICATION in
that
Vivencio
Roallos y Trillanes is ordered to pay P15,000.00 as moral damages
and P20,000.00 as civil indemnity. He is likewise ordered to pay interest on all
monetary awards for damages at the rate of six percent ( 6%) per annum from
the date of finality of this Resolution until fully satisfied.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 182677

August 3, 2010

JOSE
ANTONIO
C.
LEVISTE, Petitioner,
vs.
HON. ELMO M. ALAMEDA, HON. RAUL M. GONZALEZ, HON.
EMMANUEL Y. VELASCO, HEIRS OF THE LATE RAFAEL DE LAS
ALAS, Respondents.
DECISION
CARPIO MORALES, J.:
Jose Antonio C. Leviste (petitioner) assails via the present petition for review
filed on May 30, 2008 the August 30, 2007 Decision1 and the April 18, 2008
Resolution2 of the Court of Appeals in CA-G.R. SP No. 97761 that affirmed the
trial courts Orders of January 24, 31, February 7, 8, all in 2007, and denied the
motion for reconsideration, respectively.
Petitioner was, by Information3 of January 16, 2007, charged with homicide for
the death of Rafael de las Alas on January 12, 2007 before the Regional Trial
Court (RTC) of Makati City. Branch 150 to which the case was raffled, presided by
Judge Elmo Alameda, forthwith issued a commitment order4 against petitioner
who was placed under police custody while confined at the Makati Medical
Center.5
After petitioner posted a P40,000 cash bond which the trial court approved,6 he
was released from detention, and his arraignment was set on January 24, 2007.
The private complainants-heirs of De las Alas filed, with the conformity of the
public prosecutor, an Urgent Omnibus Motion7 praying, inter alia, for the
deferment of the proceedings to allow the public prosecutor to re-examine the
evidence on record or to conduct a reinvestigation to determine the proper
offense.
The RTC thereafter issued the (1) Order of January 24, 20078 deferring
petitioners arraignment and allowing the prosecution to conduct a
reinvestigation to determine the proper offense and submit a recommendation

within 30 days from its inception, inter alia; and (2) Order of January 31,
20079 denying reconsideration of the first order. Petitioner assailed these orders
via certiorari and prohibition before the Court of Appeals.
Meantime, petitioner filed an Urgent Ex-Parte Manifestation and Motion before
the trial court to defer acting on the public prosecutors recommendation on the
proper offense until after the appellate court resolves his application for
injunctive reliefs, or alternatively, to grant him time to comment on the
prosecutors recommendation and thereafter set a hearing for the judicial
determination of probable cause.10 Petitioner also separately moved for the
inhibition of Judge Alameda with prayer to defer action on the admission of the
Amended Information.11
The trial court nonetheless issued the other assailed orders, viz: (1) Order of
February 7, 200712 that admitted the Amended Information13 for murder and
directed the issuance of a warrant of arrest; and (2) Order of February 8,
200714 which set the arraignment on February 13, 2007. Petitioner questioned
these two orders via supplemental petition before the appellate court.
The appellate court dismissed petitioners petition, hence, his present petition,
arguing that:
PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO CAUSE THE
REINVESTIGATION OF THE CRIMINAL CASE BELOW WHEN THE
CRIMINAL INFORMATION HAD ALREADY BEEN FILED WITH THE LOWER
COURT. HENCE, THE COURT OF APPEALS COMMITTED A GRAVE ERROR
IN FINDING THAT RESPONDENT JUDGE DID NOT ACT WITH GRAVE
ABUSE OF DISCRETION IN GRANTING SUCH REINVESTIGATION DESPITE
HAVING NO BASIS IN THE RULES OF COURT[;]
RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION IN
ADMITTING STATE PROSECUTOR VELASCOS AMENDED INFORMATION,
ISSUING A WARRANT OF ARREST, AND SETTING THE CASE BELOW FOR
ARRAIGNMENT, CONSIDERING THAT THE VALIDITY AND LEGALITY OF
HIS ORDERS DATED 24 AND 31 JANUARY 2007, WHICH LED TO THE
QUESTIONABLE
REINVESTIGATION
AND
ILLEGAL
AMENDED
INFORMATION[,] ARE YET TO BE RESOLVED BY THIS HONORABLE COURT
(sic); [AND]
CONSIDERING THAT PROSECUTOR VELASCOS FINDINGS IN HIS
RESOLUTION DATED 2 FEBRUARY 2007 ARE BLATANTLY BASED ON MERE
SPECULATIONS AND CONJECTURES, WITHOUT ANY SUBSTANTIAL OR
MATERIAL NEW EVIDENCE BEING ADDUCED DURING THE
REINVESTIGATION, RESPONDENT JUDGE SHOULD HAVE AT LEAST
ALLOWED PETITIONERS MOTION FOR A HEARING FOR JUDICIAL
DETERMINATION OF PROBABLE CAUSE.15 (emphasis in the original omitted)

Records show that the arraignment scheduled on March 21, 2007 pushed
through during which petitioner refused to plead, drawing the trial court to enter
a plea of "not guilty" for him.
Prior thereto or on February 23, 2007, petitioner filed an Urgent Application for
Admission to Bail Ex Abundanti Cautela16 which the trial court, after hearings
thereon, granted by Order of May 21, 2007,17 it finding that the evidence of guilt
for the crime of murder is not strong. It accordingly allowed petitioner to post
bail in the amount ofP300,000 for his provisional liberty.
The trial court, absent any writ of preliminary injunction from the appellate
court, went on to try petitioner under the Amended Information. By Decision of
January 14, 2009, the trial court found petitioner guilty of homicide, sentencing
him to suffer an indeterminate penalty of six years and one day of prision mayor
as minimum to 12 years and one day of reclusion temporal as maximum. From
the Decision, petitioner filed an appeal to the appellate court, docketed as CAG.R. CR No. 32159, during the pendency of which he filed an urgent application
for admission to bail pending appeal. The appellate court denied petitioners
application which this Court, in G.R. No. 189122, affirmed by Decision of March
17, 2010.
The Office of the Solicitor General (OSG) later argued that the present petition
had been rendered moot since the presentation of evidence, wherein petitioner
actively participated, had been concluded.18
Waiver on the part of the accused must be distinguished from mootness of the
petition, for in the present case, petitioner did not, by his active participation in
the trial, waive his stated objections.
Section 26, Rule 114 of the Rules of Court provides:
SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular
preliminary investigation. An application for or admission to bail shall not bar
the accused from challenging the validity of his arrest or the legality of the
warrant issued therefor, or from assailing the regularity or questioning the
absence of a preliminary investigation of the charge against him, provided that he
raises them before entering his plea. The court shall resolve the matter as early as
practicable but not later than the start of the trial of the case.
By applying for bail, petitioner did not waive his right to challenge the regularity
of the reinvestigation of the charge against him, the validity of the admission of
the Amended Information, and the legality of his arrest under the Amended
Information, as he vigorously raised them prior to his arraignment. During the
arraignment on March 21, 2007, petitioner refused to enter his plea since the
issues he raised were still pending resolution by the appellate court, thus
prompting the trial court to enter a plea of "not guilty" for him.

The principle that the accused is precluded after arraignment from questioning
the illegal arrest or the lack of or irregular preliminary investigation applies "only
if he voluntarily enters his plea and participates during trial, without previously
invoking his objections thereto."19 There must be clear and convincing proof that
petitioner had an actual intention to relinquish his right to question the existence
of probable cause. When the only proof of intention rests on what a party does,
his act should be so manifestly consistent with, and indicative of, an intent to
voluntarily and unequivocally relinquish the particular right that no other
explanation of his conduct is possible.20
From the given circumstances, the Court cannot reasonably infer a valid waiver
on the part of petitioner to preclude him from obtaining a definite resolution of
the objections he so timely invoked. Other than its allegation of active
participation, the OSG offered no clear and convincing proof that petitioners
participation in the trial was unconditional with the intent to voluntarily and
unequivocally abandon his petition. In fact, on January 26, 2010, petitioner still
moved for the early resolution of the present petition.21
Whatever delay arising from petitioners availment of remedies against the trial
courts Orders cannot be imputed to petitioner to operate as a valid waiver on his
part. Neither can the non-issuance of a writ of preliminary injunction be deemed
as a voluntary relinquishment of petitioners principal prayer. The non-issuance
of such injunctive relief only means that the appellate court did not preliminarily
find any exception22 to the long-standing doctrine that injunction will not lie to
enjoin a criminal prosecution.23 Consequently, the trial of the case took its
course.
The petition is now moot, however, in view of the trial courts rendition of
judgment.
A moot and academic case is one that ceases to present a justiciable controversy
by virtue of supervening events, so that a declaration thereon would be of no
practical use or value.24
The judgment convicting petitioner of homicide under the Amended Information
for murder operates as a supervening event that mooted the present petition.
Assuming that there is ground25 to annul the finding of probable cause for
murder, there is no practical use or value in abrogating the concluded
proceedings and retrying the case under the original Information for homicide
just to arrive, more likely or even definitely, at the same conviction of homicide.
Mootness would have also set in had petitioner been convicted of murder, for
proof beyond reasonable doubt, which is much higher than probable cause,
would have been established in that instance.
Instead, however, of denying the petition outright on the ground of mootness, the
Court proceeds to resolve the legal issues in order to formulate controlling
principles to guide the bench, bar and public.26 In the present case, there is

compelling reason to clarify the remedies available before and after the filing of
an information in cases subject of inquest.
After going over into the substance of the petition and the assailed issuances, the
Court finds no reversible error on the part of the appellate court in finding no
grave abuse of discretion in the issuance of the four trial court Orders.
In his first assignment of error, petitioner posits that the prosecution has no right
under the Rules to seek from the trial court an investigation or reevaluation of the
case except through a petition for review before the Department of Justice (DOJ).
In cases when an accused is arrested without a warrant, petitioner contends that
the remedy of preliminary investigation belongs only to the accused.
The contention lacks merit.
Section 6,27 Rule 112 of the Rules of Court reads:
When a person is lawfully arrested without a warrant involving an offense which
requires a preliminary investigation, the complaint or information may be filed
by a prosecutor without need of such investigation provided an inquest has been
conducted in accordance with existing rules. In the absence or unavailability of
an inquest prosecutor, the complaint may be filed by the offended party or a
peace officer directly with the proper court on the basis of the affidavit of the
offended party or arresting officer or person.
Before the complaint or information is filed, the person arrested may ask for a
preliminary investigation in accordance with this Rule, but he must sign a waiver
of the provisions of Article 125 of the Revised Penal Code, as amended, in the
presence of his counsel. Notwithstanding the waiver, he may apply for bail and
the investigation must be terminated within fifteen (15) days from its inception.
After the filing of the complaint or information in court without a preliminary
investigation, the accused may, within five (5) days from the time he learns of its
filing, ask for a preliminary investigation with the same right to adduce evidence
in his defense as provided in this Rule. (underscoring supplied)
A preliminary investigation is required before the filing of a complaint or
information for an offense where the penalty prescribed by law is at least four
years, two months and one day without regard to fine.28 As an exception, the
rules provide that there is no need for a preliminary investigation in cases of a
lawful arrest without a warrant29 involving such type of offense, so long as an
inquest, where available, has been conducted.30
Inquest is defined as an informal and summary investigation conducted by a
public prosecutor in criminal cases involving persons arrested and detained
without the benefit of a warrant of arrest issued by the court for the purpose of

determining whether said persons should remain under custody and

correspondingly be charged in court.31
It is imperative to first take a closer look at the predicament of both the arrested
person and the private complainant during the brief period of inquest, to grasp
the respective remedies available to them before and after the filing of a
complaint or information in court.
BEFORE THE FILING OF COMPLAINT OR INFORMATION IN COURT, the
private complainant may proceed in coordinating with the arresting officer and
the inquest officer during the latters conduct of inquest. Meanwhile, the arrested
person has the option to avail of a 15-day preliminary investigation, provided he
duly signs a waiver of any objection against delay in his delivery to the proper
judicial authorities under Article 125 of the Revised Penal Code. For obvious
reasons, this remedy is not available to the private complainant since he cannot
waive what he does not have. The benefit of the provisions of Article 125, which
requires the filing of a complaint or information with the proper judicial
authorities within the applicable period,32 belongs to the arrested person.
The accelerated process of inquest, owing to its summary nature and the
attendant risk of running against Article 125, ends with either the prompt filing of
an information in court or the immediate release of the arrested
person.33Notably, the rules on inquest do not provide for a motion for
reconsideration.34
Contrary to petitioners position that private complainant should have appealed
to the DOJ Secretary, such remedy is not immediately available in cases subject
of inquest.
Noteworthy is the proviso that the appeal to the DOJ Secretary is by "petition by
a proper party under such rules as the Department of Justice may
prescribe."35 The rule referred to is the 2000 National Prosecution Service Rule
on Appeal,36 Section 1 of which provides that the Rule shall "apply to appeals
from resolutions x x x in cases subject of preliminary investigation/
reinvestigation." In cases subject of inquest, therefore, the private party should
first avail of a preliminary investigation or reinvestigation, if any, before elevating
the matter to the DOJ Secretary.
In case the inquest proceedings yield no probable cause, the private complainant
may pursue the case through the regular course of a preliminary investigation.
ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, the rules yet
provide the accused with another opportunity to ask for a preliminary
investigation within five days from the time he learns of its filing. The Rules of
Court and the New Rules on Inquest are silent, however, on whether the private
complainant could invoke, as respondent heirs of the victim did in the present
case, a similar right to ask for a reinvestigation.

The Court holds that the private complainant can move for reinvestigation,
subject to and in light of the ensuing disquisition.
All criminal actions commenced by a complaint or information shall be
prosecuted under the direction and control of the public prosecutor.37 The private
complainant in a criminal case is merely a witness and not a party to the case and
cannot, by himself, ask for the reinvestigation of the case after the information
had been filed in court, the proper party for that being the public prosecutor who
has the control of the prosecution of the case.38 Thus, in cases where the private
complainant is allowed to intervene by counsel in the criminal action,39 and is
granted the authority to prosecute,40 the private complainant, by counsel and
with the conformity of the public prosecutor, can file a motion for reinvestigation.
In fact, the DOJ instructs that before the arraignment of the accused, trial
prosecutors must "examine the Information vis--vis the resolution of the
investigating prosecutor in order to make the necessary corrections or revisions
and to ensure that the information is sufficient in form and substance."41
x x x Since no evidence has been presented at that stage, the error would appear
or be discoverable from a review of the records of the preliminary investigation.
Of course, that fact may be perceived by the trial judge himself but,
again, realistically it will be the prosecutor who can initially determine
the same. That is why such error need not be manifest or evident, nor is it
required that such nuances as offenses includible in the offense charged be taken
into account. It necessarily follows, therefore, that the prosecutor can and
should institute remedial measures[.]42 (emphasis and underscoring
supplied)
The prosecution of crimes appertains to the executive department of the
government whose principal power and responsibility is to see that our laws are
faithfully executed. A necessary component of this power to execute our laws is
the right to prosecute their violators. The right to prosecute vests the prosecutor
with a wide range of discretion the discretion of what and whom to charge, the
exercise of which depends on a smorgasbord of factors which are best
appreciated by prosecutors.43
The prosecutions discretion is not boundless or infinite, however.44 The standing
principle is that once an information is filed in court, any remedial measure such
as a reinvestigation must be addressed to the sound discretion of the court.
Interestingly, petitioner supports this view.45 Indeed, the Court ruled in one case
that:
The rule is now well settled that once a complaint or information is filed in court,
any disposition of the case, whether as to its dismissal or the conviction or the
acquittal of the accused, rests in the sound discretion of the court. Although the
prosecutor retains the direction and control of the prosecution of criminal cases
even when the case is already in court, he cannot impose his opinion upon the

tribunal. For while it is true that the prosecutor has the quasi-judicial discretion
to determine whether or not a criminal case should be filed in court, once the
case had already been brought therein any disposition the prosecutor may deem
proper thereafter
should be addressed to the court for its consideration and approval. The only
qualification is that the action of the court must not impair the substantial rights
of the accused or the right of the People to due process of law.
xxxx
In such an instance, before a re-investigation of the case may be conducted by the
public prosecutor, the permission or consent of the court must be secured. If after
such re-investigation the prosecution finds a cogent basis to withdraw the
information or otherwise cause the dismissal of the case, such proposed course of
action may be taken but shall likewise be addressed to the sound discretion of the
court.46 (underscoring supplied)
While Abugotal v. Judge Tiro47 held that to ferret out the truth, a trial is to be
preferred to a reinvestigation, the Court therein recognized that a trial court
may, where the interest of justice so requires, grant a motion for reinvestigation
of a criminal case pending before it.
Once the trial court grants the prosecutions motion for reinvestigation, the
former is deemed to have deferred to the authority of the prosecutorial arm of the
Government. Having brought the case back to the drawing board, the prosecution
is thus equipped with discretion wide and far reaching regarding the
disposition thereof,48 subject to the trial courts approval of the resulting
proposed course of action.
Since a reinvestigation may entail a modification of the criminal information as
what happened in the present case, the Courts holding is bolstered by the rule on
amendment of an information under Section 14, Rule 110 of the Rules of Court:
A complaint or information may be amended, in form or in substance,
without leave of court, at any time before the accused enters his plea.
After the plea and during the trial, a formal amendment may only be made with
leave of court and when it can be done without causing prejudice to the rights of
the accused.
However, any amendment before plea, which downgrades the nature of the
offense charged in or excludes any accused from the complaint or information,
can be made only upon motion by the prosecutor, with notice to the offended
party and with leave of court. The court shall state its reasons in resolving the
motion and copies of its order shall be furnished all parties, especially the
offended party.

If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in
accordance with section 11, Rule 119, provided the accused would not be placed in
double jeopardy. The court may require the witnesses to give bail for their
appearance at the trial. (emphasis supplied)
In fine, before the accused enters a plea, a formal or substantial amendment of
the complaint or information may be made without leave of court.49 After the
entry of a plea, only a formal amendment may be made but with leave of court
and only if it does not prejudice the rights of the accused. After arraignment, a
substantial amendment is proscribed except if the same is beneficial to the
accused.50
It must be clarified though that not all defects in an information are curable by
amendment prior to entry of plea. An information which is void ab initio cannot
be amended to obviate a ground for quashal.51 An amendment which operates to
vest jurisdiction upon the trial court is likewise impermissible.52
Considering the general rule that an information may be amended even in
substance and even without leave of court at any time before entry of plea, does it
mean that the conduct of a reinvestigation at that stage is a mere superfluity?
It is not.
Any remedial measure springing from the reinvestigation be it a complete
disposition or an intermediate modification53 of the charge is eventually
addressed to the sound discretion of the trial court, which must make an
independent evaluation or assessment of the merits of the case. Since the trial
court would ultimately make the determination on the proposed course of action,
it is for the prosecution to consider whether a reinvestigation is necessary to
adduce and review the evidence for purposes of buttressing the appropriate
motion to be filed in court.
More importantly, reinvestigation is required in cases involving a substantial
amendment of the information. Due process of law demands that no substantial
amendment of an information may be admitted without conducting another or a
new preliminary investigation. In Matalam v. The 2nd Division of the
Sandiganbayan,54 the Court ruled that a substantial amendment in an
information entitles an accused to another preliminary investigation, unless the
amended information contains a charge related to or is included in the original
Information.
The question to be resolved is whether the amendment of the Information from
homicide to murder is considered a substantial amendment, which would make it
not just a right but a duty of the prosecution to ask for a preliminary
investigation.

The Court answers in the affirmative.

A substantial amendment consists of the recital of facts constituting
the offense charged and determinative of the jurisdiction of the
court. All other matters are merely of form. The following have been held to be
mereformal amendments: (1) new allegations which relate only to the range of
the penalty that the court might impose in the event of conviction; (2) an
amendment which does not charge another offense different or distinct from that
charged in the original one; (3) additional allegations which do not alter the
prosecutions theory of the case so as to cause surprise to the accused and affect
the form of defense he has or will assume; (4) an amendment which does not
adversely affect any substantial right of the accused; and (5) an amendment that
merely adds specifications to eliminate vagueness in the information and not to
introduce new and material facts, and merely states with additional precision
something which is already contained in the original information and which adds
nothing essential for conviction for the crime charged.
The test as to whether a defendant is prejudiced by the amendment is whether a
defense under the information as it originally stood would be available after the
amendment is made, and whether any evidence defendant might have would be
equally applicable to the information in the one form as in the other. An
amendment to an information which does not change the nature of the crime
alleged therein does not affect the essence of the offense or cause surprise or
deprive the accused of an opportunity to meet the new averment had each been
held to be one of form and not of substance.55 (emphasis and underscoring
supplied)
Matalam adds that the mere fact that the two charges are related does not
necessarily or automatically deprive the accused of his right to another
preliminary investigation. Notatu dignum is the fact that both the original
Information and the amended Information in Matalam were similarly charging
the accused with violation of Section 3(e) of the Anti-Graft and Corrupt Practices
Act.
In one case,56 it was squarely held that the amendment of the Information from
homicide to murder is "one of substance with very serious consequences."57 The
amendment involved in the present case consists of additional averments of the
circumstances of treachery, evident premeditation, and cruelty, which qualify the
offense charged from homicide to murder. It being a new and material element of
the offense, petitioner should be given the chance to adduce evidence on the
matter. Not being merely clarificatory, the amendment essentially varies the
prosecutions original theory of the case and certainly affects not just the form
but the weight of defense to be mustered by petitioner.
The Court distinguishes the factual milieus in Buhat v. CA58 and Pacoy v.
Cajigal,59 wherein the amendment of the caption of the Information from
homicide to murder was not considered substantial because there was no real

change in the recital of facts constituting the offense charged as alleged in the
body of the Information, as the allegations of qualifying circumstances were
already clearly embedded in the original Information. Buhat pointed out that the
original Information for homicide already alleged the use of superior strength,
while Pacoy states that the averments in the amended Information for murder
are exactly the same as those already alleged in the original Information for
homicide. None of these peculiar circumstances obtains in the present case.
Considering that another or a new preliminary investigation is required, the fact
that what was conducted in the present case was a reinvestigation does not
invalidate the substantial amendment of the Information. There is no substantial
distinction between a preliminary investigation and a reinvestigation since both
are conducted in the same manner and for the same objective of determining
whether there exists sufficient ground to engender a well-founded belief that a
crime has been committed and the respondent is probably guilty thereof and
should be held for trial.60 What is essential is that petitioner was placed on guard
to defend himself from the charge of murder61 after the claimed circumstances
were made known to him as early as the first motion.
Petitioner did not, however, make much of the opportunity to present
countervailing evidence on the proposed amended charge. Despite notice of
hearing, petitioner opted to merely observe the proceedings and declined to
actively participate, even with extreme caution, in the reinvestigation. Mercado v.
Court of Appeals states that the rules do not even require, as a condition sine qua
non to the validity of a preliminary investigation, the presence of the respondent
as long as efforts to reach him were made and an opportunity to controvert the
complainants evidence was accorded him.62
In his second assignment of error, petitioner basically assails the hurried
issuance of the last two assailed RTC Orders despite the pendency before the
appellate court of the petition for certiorari challenging the first two trial court
Orders allowing a reinvestigation.
The Rules categorically state that the petition shall not interrupt the course of the
principal case unless a temporary retraining order or a writ of preliminary
injunction has been issued.63 The appellate court, by Resolution of February 15,
2007,64 denied petitioners application for a temporary restraining order and writ
of preliminary injunction. Supplementary efforts to seek injunctive reliefs proved
futile.65 The appellate court thus did not err in finding no grave abuse of
discretion on the part of the trial court when it proceeded with the case and
eventually arraigned the accused on March 21, 2007, there being no injunction
order from the appellate court. Moreover, petitioner opted to forego appealing to
the DOJ Secretary, a post-inquest remedy that was available after the
reinvestigation and which could have suspended the arraignment.661avvphi1

Regarding petitioners protestations of haste, suffice to state that the pace in

resolving incidents of the case is not per se an indication of bias. In SantosConcio v. Department of Justice,67 the Court held:
Speed in the conduct of proceedings by a judicial or quasi-judicial officer
cannot per se be instantly attributed to an injudicious performance of functions.
For ones prompt dispatch may be anothers undue haste. The orderly
administration of justice remains as the paramount and constant consideration,
with particular regard of the circumstances peculiar to each case.
The presumption of regularity includes the public officers official actuations in
all phases of work. Consistent with such presumption, it was incumbent upon
petitioners to present contradictory evidence other than a mere tallying of days or
numerical calculation. This, petitioners failed to discharge. The swift completion
of the Investigating Panels initial task cannot be relegated as shoddy or shady
without discounting the presumably regular performance of not just one but five
state prosecutors.68
There is no ground for petitioners protestations against the DOJ Secretarys
sudden designation of Senior State Prosecutor Emmanuel Velasco as Acting City
Prosecutor of Makati City for the present case69 and the latters conformity to the
motion for reinvestigation.
In granting the reinvestigation, Judge Alameda cannot choose the public
prosecutor who will conduct the reinvestigation or preliminary
investigation.70 There is a hierarchy of officials in the prosecutory arm of the
executive branch headed by the Secretary of Justice71 who is vested with the
prerogative to appoint a special prosecutor or designate an acting prosecutor to
handle a particular case, which broad power of control has been recognized by
jurisprudence.72
As for the trial courts ignoring the DOJ Secretarys uncontested statements to
the media which aired his opinion that if the assailant merely intended to maim
and not to kill the victim, one bullet would have sufficed the DOJ Secretary
reportedly uttered that "the filing of the case of homicide against ano against
Leviste lintek naman eh I told you to watch over that case there should be a
report about the ballistics, about the paraffin, etc., then thats not a complete
investigation, thats why you should use that as a ground" no abuse of
discretion, much less a grave one, can be imputed to it.
The statements of the DOJ Secretary do not evince a "determination to file the
Information even in the absence of probable cause."73 On the contrary, the
remarks merely underscored the importance of securing basic investigative
reports to support a finding of probable cause. The original Resolution even
recognized that probable cause for the crime of murder cannot be determined
based on the evidence obtained "[u]nless and until a more thorough investigation
is conducted and eyewitness/es [is/]are presented in evidence[.]"74

The trial court concluded that "the wound sustained by the victim at the back of
his head, the absence of paraffin test and ballistic examination, and the handling
of physical evidence,"75 as rationalized by the prosecution in its motion, are
sufficient circumstances that require further inquiry.
That the evidence of guilt was not strong as subsequently assessed in the bail
hearings does not affect the prior determination of probable cause because, as the
appellate court correctly stated, the standard of strong evidence of guilt which is
sufficient to deny bail to an accused is markedly higher than the standard of
judicial probable cause which is sufficient to initiate a criminal case.76
In his third assignment of error, petitioner faults the trial court for not
conducting, at the very least, a hearing for judicial determination of probable
cause, considering the lack of substantial or material new evidence adduced
during the reinvestigation.
Petitioners argument is specious.
There are two kinds of determination of probable cause: executive and
judicial. The executive determination of probable cause is one made during
preliminary investigation. It is a function that properly pertains to the public
prosecutor who is given a broad discretion to determine whether probable cause
exists and to charge those whom he believes to have committed the crime as
defined by law and thus should be held for trial. Otherwise stated, such official
has the quasi-judicial authority to determine whether or not a criminal case must
be filed in court. Whether that function has been correctly discharged by the
public prosecutor, i.e., whether he has made a correct ascertainment of the
existence of probable cause in a case, is a matter that the trial court itself does not
and may not be compelled to pass upon.77
The judicial determination of probable cause is one made by the judge to
ascertain whether a warrant of arrest should be issued against the accused. The
judge must satisfy himself that based on the evidence submitted, there is
necessity for placing the accused under custody in order not to frustrate the ends
of justice. If the judge finds no probable cause, the judge cannot be forced to issue
the arrest warrant.78 Paragraph (a), Section 5,79 Rule 112 of the Rules of Court
outlines the procedure to be followed by the RTC.
To move the court to conduct a judicial determination of probable cause is a mere
superfluity, for with or without such motion, the judge is duty-bound to
personally evaluate the resolution of the public prosecutor and the supporting
evidence. In fact, the task of the presiding judge when the Information is filed
with the court is first andforemost to determine the existence or non-existence of
probable cause for the arrest of the accused.80
What the Constitution underscores is the exclusive and personal responsibility of
the issuing judge to satisfy himself of the existence of probable cause. But 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 prosecutor
regarding the existence of probable cause, and on the basis thereof, he may
already make a personal determination of the existence of probable cause; and
(2) if he is not satisfied that probable cause exists, he may disregard the
prosecutors 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.81(emphasis and underscoring supplied)
The rules do not require cases to be set for hearing to determine probable cause
for the issuance of a warrant of arrest of the accused before any warrant may be
issued.82 Petitioner thus cannot, as a matter of right, insist on a hearing for
judicial determination of probable cause. Certainly, petitioner "cannot determine
beforehand how cursory or exhaustive the [judge's] examination of the records
should be [since t]he extent of the judges examination depends on the exercise of
his sound discretion as the circumstances of the case require."83 In one case, the
Court emphatically stated:
The periods provided in the Revised Rules of Criminal Procedure are mandatory,
and as such, the judge must determine the presence or absence of probable cause
within such periods. The Sandiganbayans determination of probable cause is
made ex parte and is summary in nature, not adversarial. The Judge should
not be stymied and distracted from his determination of probable
cause by needless motions for determination of probable cause filed
by the accused.84 (emphasis and underscoring supplied)
Petitioner proceeds to discuss at length evidentiary matters, arguing that no
circumstances exist that would qualify the crime from homicide to murder.
The allegation of lack of substantial or material new evidence deserves no
credence, because new pieces of evidence are not prerequisites for a valid conduct
of reinvestigation. It is not material that no new matter or evidence was
presented during the reinvestigation of the case. It should be stressed that
reinvestigation, as the word itself implies, is merely a repeat investigation of the
case. New matters or evidence are not prerequisites for a reinvestigation, which is
simply a chance for the prosecutor to review and re-evaluate its findings and the
evidence already submitted.85
Moreover, under Rule 45 of the Rules of Court, only questions of law may be
raised in, and be subject of, a petition for review on certiorari since this Court is
not a trier of facts. The Court cannot thus review the evidence adduced by the
parties on the issue of the absence or presence of probable cause, as there exists
no exceptional circumstances to warrant a factual review.86
In a petition for certiorari, like that filed by petitioner before the appellate court,
the jurisdiction of the court is narrow in scope. It is limited to resolving only

errors of jurisdiction.1avvphi1 It is not to stray at will and resolve questions and

issues beyond its competence, such as an error of judgment.87 The courts duty in
the pertinent case is confined to determining whether the executive and judicial
determination of probable cause was done without or in excess of jurisdiction or
with grave abuse of discretion. Although it is possible that error may be
committed in the discharge of lawful functions, this does not render the act
amenable to correction and annulment by the extraordinary remedy of certiorari,
absent any showing of grave abuse of discretion amounting to excess of
jurisdiction.88
WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of
the Court of Appeals in CA-G.R. SP No. 97761 are AFFIRMED.
SO ORDERED.