2003-People v. Tudtud

SECOND DIVISION
[G.R. No. 144037. September 26, 2003.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NOEL

TUDTUD y PAYPA and DINDO BOLONG y NARET , accused-
appellants.
The Solicitor General for plaintiff-appellee.

Roberto Q. Canete for accused-appellant N. Tudtud.
Camilo F. Narava and Alejandro Cabal for accused-appellant D. Bolong
SYNOPSIS
Appellants assailed before the Supreme Court the decision of the Regional
Trial Court of Davao City finding them guilty beyond reasonable doubt of the
crime of illegal possession of prohibited drugs and sentenced to suffer
imprisonment of reclusion perpetua. Appellants contended that the marijuana
leaves were seized in violation of their right against unreasonable searches and
seizures, hence, inadmissible in evidence. aSHAIC
In acquitting the appellants, the Court held that the search of appellants'
box did not come under the recognized exceptions to a valid warrantless
search; hence, the marijuana leaves obtained thereby were inadmissible in
evidence. First, the arresting officers' knowledge that appellant was in
possession of marijuana cannot be described as "personal" having learned the
same only from their informer, who in turn, obtained the information only from
his neighbors and the friends of appellant Tudtud. Hence, the information was
hearsay, not of personal knowledge. Second, appellants were neither
performing any overt act or acting in a suspicious manner that would hint that
a crime had been, was being, or was about to be, committed. If the arresting
officers' testimonies are to be believed, appellants were merely helping each
other carry a carton box. Although appellant Tudtud did appear afraid and
perspiring, pale and trembling, this was only after, not before, he was asked to
open the box containing the marijuana leaves. Third, the arresting officers were
not impelled by any urgency that would allow them to do away with the
requisite warrant. Records showed that the police had ample opportunity to
apply for a warrant Fourth, there was no valid waiver of rights against
unreasonable searches and seizures. The fact that appellant Tudtud did not
resist, and opened the box himself when requested to by the police officers, did
not amount to permission to the search. Appellant's implied acquiescence, if at
all, could not have been more than mere passive conformity given under
coercive or intimidating circumstances and was, thus, considered no consent at
all within the purview of the constitutional guarantee.
SYLLABUS
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1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST
UNREASONABLE SEARCHES AND SEIZURES; EVIDENCE OBTAINED IN VIOLATION
OF THE RIGHT IS INADMISSIBLE IN EVIDENCE. — The right against unreasonable
searches and seizures is secured by Section 2, Article III of the Constitution,
which states: SEC. 2. The right of the people to be secured in their persons,
houses, papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search warrant
or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the
places to be searched and the persons or things to be seized. The rule is that a
search and seizure must be carried out through or with a judicial warrant;
otherwise, such search and seizure becomes "unreasonable" within the
meaning of. the above quoted constitutional provision, and any evidence
secured thereby, will be inadmissible in evidence "for any purpose in any
proceeding." Section 3 (2), Article III of the Constitution explicitly provides: (2)
Any evidence obtained in violation of... the preceding section shall be
inadmissible for any purpose in any proceeding.
2 ID.; ID.; ID.; ID.; EXCEPTIONS. — The proscription in Section 2, Article
III, however, covers only "unreasonable" searches and seizures. The following
instances are not deemed "unreasonable" even in the absence of a warrant: 1.
Warrantless search incidental to a lawful arrest. (Sec. 12, Rule 126 of the Rules
of Court and prevailing jurisprudence); 2. Search of evidence in "plain view."
The elements are: (a) a prior valid intrusion based on the valid warrantless
arrest in which the police are legally present in the pursuit of their official
duties; (b) the evidence was inadvertently discovered by the police who have
the right to be where they are; (c) the evidence must be immediately apparent;
(d) "plain view" justified mere seizure of evidence without further search; 3.
Search of a moving vehicle. Highly regulated by the government, the vehicle's
inherent mobility reduces expectation of privacy especially when its transit in
public thoroughfares furnishes a highly reasonable suspicion amounting to
probable cause that the occupant committed a criminal activity; 4. Consented
warrantless search; 5. Customs search; 6. Stop and Frisk; and 7. Exigent and
emergency circumstances.
3. ID.; ID.; ID.; WAIVER OF THE RIGHT; REQUISITES TO BE VALID; NOT
ESTABLISHED IN CASE AT BAR.- Finally, there is an effective waiver of rights
against unreasonable searches and seizures if the following requisites are
present: 1. It must appear that the rights exist; 2. The person involved had
knowledge, actual or constructive, of the existence of such right; 3. Said person
had an actual intention to relinquish the right. Here, the prosecution failed to
establish the second and third requisites. Records disclose that when the police
officers introduced themselves as such and requested appellant that they see
the contents of the carton box supposedly containing the marijuana, appellant
Tudtud said "it was alright." He did not resist and opened the box himself.
4. ID.; ID.; ID.; ID.; FAILURE OF A PERSON TO OBJECT TO A SEARCH DOES
NOT AMOUNT TO PERMISSION THERETO.— The fundamental law and
jurisprudence require more than the presence of these circumstances to
constitute a valid waiver of the constitutional right against unreasonable
searches and seizures. Courts indulge every reasonable presumption against
waiver of fundamental constitutional rights; acquiescence in the loss of
fundamental rights is not to be presumed. The fact that a person failed to
object to a search does not amount to permission thereto. ... As the
constitutional guaranty is not dependent upon any affirmative act of the citizen,
the courts do not place the citizen in the position of either contesting an
officer's authority by force, or waiving his constitutional rights; but instead they
hold that a peaceful submission to a search or seizure is not a consent or an
invitation thereto, but is merely a demonstration of regard for the supremacy of
the law. Thus, even in cases where the accused voluntarily handed her bag or
the chairs containing marijuana to the arresting officer, this Court held there
was no valid consent to the search.
5. ID.; ID.; ID.; ID.; ACCUSED'S LACK OF OBJECTION TO SEARCH AND
SEIZURE NOT TANTAMOUNT TO VOLUNTARY SUBMISSION TO WARRANTLESS
SEARCH AND SEIZURE; CASE AT BAR.- Appellants' implied acquiescence, if at
all, could not have been more than mere passive conformity given under
coercive or intimidating circumstances and is, thus, considered no consent at
all within the purview of the constitutional guarantee. Consequently, appellants'
lack of objection to the search and seizure is not tantamount to a waiver of his
constitutional right or a voluntary submission to the warrantless search and
seizure. As the search of appellants' box does not come under the recognized
exceptions to a valid warrantless search, the marijuana leaves obtained thereby
are inadmissible in evidence. And as there is no evidence other than the
hearsay testimony of the arresting officers and their informant, the conviction
of appellants cannot be sustained.
6. ID.; ID.; ID.; ELABORATED. — The Bill of Rights is the bedrock of
constitutional government. If people are stripped naked of their rights as
human beings, democracy cannot survive and government becomes
meaningless. This explains why the Bill of Rights, contained as it is in Article III
of the Constitution, occupies a position of primacy in the fundamental law way
above the articles on governmental power. The right against unreasonable
search and seizure in turn is at the top of the hierarchy of rights, next only to, if
not on the same plane as, the right to life, liberty and property, which is
protected by the due process clause. This is as it should be for, as stressed by a
couple of noted freedom advocates, the right to personal security which, along
with the right to privacy, is the foundation of the right against unreasonable
search and seizure "includes the right to exist, and the right to enjoyment of life
while existing." Emphasizing such right, this Court declared in People v. Aruta:
Unreasonable searches and seizures are the menace against which the
constitutional guarantees afford full protection. While the power to search and
seize may at times be necessary to the public welfare, still it may be exercised
and the law enforced without transgressing the constitutional rights of the
citizens, for the enforcement of no statute is of sufficient importance to justify
indifference to the basic principles of government. Those who are supposed to
enforce the law are not justified in disregarding the rights of the individual in
the name of order. Order is too high a price to pay for the loss of liberty. As
Justice Holmes declared: "1 think it is less evil that some criminals escape than
that the government should play an ignoble part." It is simply not allowed in
free society to violate a law to enforce another, especially if the law violated is
the Constitution itself. Thus, given a choice between letting suspected criminals
escape or letting the government play an ignoble part, the answer, to this
Court, is clear and ineluctable.
7. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARRESTS AND
SEARCHES; A SEARCH SUBSTANTIALLY CONTEMPORANEOUS WITH AN ARREST
CAN PRECEDE THE ARREST IF THE POLICE HAVE PROBABLE CAUSE TO MAKE
THE ARREST AT THE OUTSET OF THE SEARCH.-- It is significant to note that the
search in question preceded the arrest. Recent jurisprudence holds that the
arrest must precede the search; the process cannot be reversed. Nevertheless,
a search substantially contemporaneous with an arrest can precede the arrest
if the police have probable cause to make the arrest at the outset of the search.
The question, therefore, is whether the police in this case had probable cause
to arrest appellants.
8 ID.; ID.; ID.; ID.; PROBABLE CAUSE; DEFINED.—Probable cause has been
defined as: an actual belief or reasonable grounds of suspicion. The grounds of
suspicion are reasonable when, in the absence of actual belief of the arresting
officers, the suspicion that the person to be arrested is probably guilty of
committing the offense, is based on actual facts, i. e., supported by
circumstances sufficiently strong in themselves to create the probable cause of
guilt of the person to be arrested. A reasonable suspicion therefore must be
founded on probable cause, coupled with good faith of the peace officers
making the arrest.
9. ID.; ID.; ID.; RELIABLE INFORMATION ALONE INSUFFICIENT TO JUSTIFY
WARRANTLESS ARREST. — The long-standing rule in this jurisdiction, applied
with a great degree of consistency, is that "reliable information" alone is not
sufficient to justify a warrantless arrest under Section 5 (a), Rule 113. The rule
requires, in addition, that the accused perform some overt act that would
indicate that he "has committed, is actually committing, or is attempting to
commit an offense."
10. ID.; ID.; ID.; ELEMENTS. — Personal knowledge was also required in
the case of People v. Doria. Recently, in People v. Binad Sy Chua, this Court
declared invalid the arrest of the accused, who was walking towards a hotel
clutching a sealed Zest-O juice box. For the exception in Section 5 (a), Rule 113
to apply, this Court ruled, two elements must concur: (1) the person to be
arrested must execute an overt act indicating he has just committed, is actually
committing, or is attempting to commit a crime; and (2) such overt act is done
in the presence or within the view of the arresting officer. Reliable information
alone is insufficient.
11. ID.; ID.; ID.; ID.; NOT PRESENT IN CASE AT BAR. — Appellants in this
case were neither performing any overt act or acting in a suspicious manner
that would hint that a crime has been, was being, or was about to be,
committed. If the arresting officers' testimonies are to be believed, appellants
were merely helping each other carry a carton box. Although appellant Tudtud
did appear "afraid and perspiring," "pale" and "trembling," this was only after,
not before, he was asked to open the said box. In no sense can the knowledge
of the herein arresting officers that appellant Tudtud was in possession of
marijuana be described as "personal," having learned the same only from their
informant Solier. Solier, for his part, testified that he obtained his information
only from his neighbors and the friends of appellant Tudtud: . . . In other words,
Solier's information itself is hearsay. He did not even elaborate on how his
neighbors or Tudtud's friends acquired their information that Tudtud was
responsible for the proliferation of drugs in their neighborhood. Indeed, it
appears that PO1 Floreta himself doubted the reliablility of their informant. The
prosecution, on re-direct examination, did not attempt to extract any
explanation from PO1 Floreta for his telling silence. Confronted with such a
dubious informant, the police perhaps felt it necessary to conduct their own
"surveillance." This "surveillance," it turns out, did not actually consist of
staking out appellant Tudtud to catch him in the act of plying his illegal trade,
but of a mere "gather[ing] of information from the assets there." The police
officers who conducted such "surveillance" did not identify who these "assets"
were or the basis of the latter's information. Clearly, such information is also
hearsay, not of personal knowledge.
12. ID.; ID.; ID.; MERE SUBJECTIVE CONCLUSIONS OF A POLICE OFFICER

CONCERNING THE EXISTENCE OF PROBABLE CAUSE NOT BINDING ON THE
COURTS —.Given that the police had adequate time to obtain the warrant, PO1
Floreta's testimony that the real reason for their omission was their belief that
they lacked sufficient basis to obtain the same assumes greater significance. It
may be conceded that "the mere subjective conclusions of a police officer
concerning the existence of probable cause is not binding on [the courts] which
must independently scrutinize the objective facts to determine the existence of
probable cause" and that "a court may also find probable cause in spite of an
officer's judgment that none exists." However, the fact that the arresting
officers felt that they did not have sufficient basis to obtain a warrant, despite
their own information-gathering efforts, raises serious questions whether such
"surveillance" actually yielded any pertinent information and even whether they
actually conducted any information-gathering at all, thereby eroding any claim
to personal knowledge.
13. ID.; ID.; ID.; UNJUSTIFIED WHERE POLICE OFFICERS HAVE AMPLE
OPPORTUNITY TO PROCURE A WARRANT; CASE AT BAR. —- Neither were the
arresting officers impelled by any urgency that would allow them to do away
with the requisite warrant, PO1 Desierto's assertions of lack of time
notwithstanding. Records show that the police had ample opportunity to apply
for a warrant, having received Solier's information at around 9:00 in the
morning; Tudtud, however, was expected to arrive at around 6:00 in the
evening of the same day. In People v. Encinada, supra, the Court ruled that
there was sufficient time to procure a warrant where the police officers
received at 4:00 in the afternoon an intelligence report that the accused, who
was supposedly carrying marijuana, would arrive the next morning at 7:00
a.m.:. . .
14. ID.; ID.; ID.; REGULARITY IN THE PERFORMANCE OF OFFICIAL

FUNCTION CANNOT BE INVOKED WHERE THE WARRANTLESS ARREST IS IN
DEROGATION OF A CONSTITUTIONAL RIGHT. — On the other hand, because a
warrantless search is in derogation of a constitutional right, peace officers who
conduct it cannot invoke regularity in the performance of official functions and
shift to the accused the burden of proving that the search was unconsented.
15. ID.; ID.; ID.; RULE THEREON STRICTLY CONSTRUED. —Nevertheless,
the great majority of cases conforms to the rule in Burgos, which, in turn, more
faithfully adheres to the letter of Section 5(a), Rule 113. Note the phrase "in his
presence" therein, connoting personal knowledge on the part of the arresting
officer. The right of the accused to be secure against any unreasonable
searches on and seizure of his own body and any deprivation of his liberty
being a most basic and fundamental one, the statute or rule that allows
exception to the requirement of a warrant of arrest is strictly construed. Its
application cannot be extended beyond the cases specifically provided by law.
QUISUMBING, J., dissenting opinion:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST
UNREASONABLE SEARCHES AND SEIZURES; EXCLUSIONARY RULE; EXCEPTION.
— Section 2, Article III of the Constitution, ordains that search and seizure must
be carried out through or on the strength of a judicial warrant, absent which
such search and seizure becomes "unreasonable" and that evidence secured on
the occasion of such an unreasonable search and seizure shall be inadmissible
in evidence for any purpose in any proceeding. But this exclusionary rule is not,
however, an absolute and rigid proscription. Section 5(a), Rule 113 of the Rules
of Court provides one such exception where 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. In the case at hand. appellants were caught in flagrante delicto, since
they carrying marijuana at the time of their arrest. A warrantless arrest, under
this circumstance, is legitimate. It also necessarily cloaks the arresting officer
with authority to search and seize from the offender contraband or prohibited
material and whatever may be used as proof of the offense being committed.
2. REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH AND SEIZURE;
WARRANTLESS SEARCH AND SEIZURE; REQUIRES PROBABLE CAUSE. —
However, the instances of permissible arrests set out in Section 5(a) of Rule
113, do not dispense with the requisite probable cause before a warrantless
search and seizure can be lawfully conducted. In these cases, probable cause
must only be based on reasonable ground of suspicion or belief that a crime
has been committed or is about to be committed. The required probable cause
that will justify a warrantless search and seizure is not determined by a fixed
formula but is resolved according to the facts of each case.
3. ID.; ID.; ID.; ID.; JUSTIFIED BY LACK OF MATERIAL TIME TO APPLY FOR A
SEARCH WARRANT. — The warrantless search and seizure is further justified by
lack of material time to apply for a search warrant. Faced with such on-the-spot
information that Tudtud would arrive that same day with the prohibited drugs,
the law enforcers had to respond quickly. As often said, it is necessary to adopt
a realistic appreciation of the physical and tactical problems of the police,
instead of critically viewing them from the placid and clinical environment of
judicial chambers, if courts of justice wish to be of understanding assistance to
law enforcement agencies in the fight against crime.
4. ID.; ID.; ID.; ID.; ILLEGAL DRUGS DISCOVERED AS A RESULT OF
CONSENTED SEARCH IS ADMISSIBLE IN EVIDENCE —.Moreover, appellants
consented to the search in this case. This, to me, is established not merely from
the words but the actions taken hereon. When the officers approached
appellants, they formally introduced themselves as policemen. They inquired
from appellants about the contents of their luggage, and requested appellant
Tudtud to open the box. Although trembling, appellant Tudtud agreed to the
request. Neither did appellant Bolong resist the search. In People vs. Cuizon, we
held that illegal drugs discovered as a result of consented search is admissible
in evidence. And, in People vs. Montilla, when an individual voluntarily submits
to a search or consents to have the same conducted upon his person or
premises, he is precluded from later complaining thereof.
5. ID.; EVIDENCE; CONSPIRACY; PRESENT IN CASE AT BAR — The

conspiracy to commit the offense between appellants Noel Tudtud and Dindo
Bolong clearly appears from the records. They were apprehended at the same
time. They alighted together from the bus at the highway corner of Toril, Davao
City. Appellant Bolong was helping his co-appellant Tudtud carry the "King
Flakes" carton box, which contained what turned out to be a large quantity of
dried marijuana leaves covered by dried fish and concealed in plastic and
newspaper wrapper. These factors convince me that indeed the two appellants
had conspired together and helped each other in the commission of the
offense.
6 . ID.; ID.; DEFENSE OF FRAME-UP; VIEWED WITH DISFAVOR; CASE AT
BAR. — As the trial court explained, the frame-up angle in this case that
appellants wish to peddle in their defense does not inspire belief. Like alibi, the
defense of frame-up is viewed with disfavor, because it is easily concocted. It is
a common and standard line of defense in cases arising from violations of the
Dangerous Drugs Act. Appellant Tudtud's alibi that he came from Kabacan,
North Cotabato, where he sold Levis jeans, is uncorroborated. In his
memorandum, he referred to Exh. "F", claiming that the apprehending officers
had confiscated the six pants then in his possession, although Exh. "F" refers to
the entry in the police blotter on the arrest of both appellants, with no mention
of a plastic bag containing 6 Levis jeans. In the same vein, the defense of
appellant Dindo Bolong, that he took the bus from Hagonoy, Davao del Sur,
after delivering invitations for his cousin's wedding, remains a bare allegation
that is not substantiated. The version of the incident by the police officers,
coming as it did from law enforcers presumed to have regularly performed their
duty in the absence of proof to the contrary, and accepted as credible by the
trial court, has not been discredited at all by appellants who claimed a frame-up
without sufficient bases.
7. ID.; ID.; CREDIBILITY OF WITNESSES; TESTIMONY OF POLICE
INFORMANT IN AN ILLEGAL DRUG CASE MERELY CUMULATIVE AND
CORROBORATIVE OF THE APPREHENDING OFFICERS' EYEWITNESS TESTIMONIES
— .Appellants next assail the credibility of the civilian informant, witness
Bobong Solier, on the ground that various informations and complaints had
been filed against him in the City Court and Regional Trial Court of Davao City.
But it should be stressed that witness Solier's testimony is not essential for the
conviction of the appellants. Testimonies of the police informant in an illegal
drug case is merely cumulative and corroborative of the apprehending officers'
eyewitness testimonies. Moreover, Solier's tip-off was not the sole basis for the
police operation in this case as there was prior surveillance conducted by the
police. As it stands, Solier's testimony merely buttressed the case for the
prosecution.
8. ID.; ID.; ID.; TRIAL COURT'S EVALUATION THEREOF ENTITLED TO GREAT
RESPECT AND WILL NOT BE DISTURBED ON APPEAL. — The investigative
including laboratory procedures adopted in this regard by Chief Inspector
Noemi Austero are being criticized by appellants. They lament that the
Duquenois' Levine Test conducted by Austero at the PNP Crime Laboratory on
the confiscated leaves was inconclusive in regard to determining whether the
confiscated items were indeed marijuana, absent any confirmatory or other
tests. However, nothing on record effectively negate the finding of the trial
court that the test was regularly performed. The trial court's evaluation of the
credibility of witnesses and their testimonies is entitled to great respect and will
not be disturbed on appeal, unless there appears on record some facts of
weight and substance that have been overlooked, misapprehended, or
misapplied by the trial court.
9. CRIMINAL LAW; REPUBLIC ACT NO. 6425, AS AMENDED; ILLEGAL
POSSESSION OF MARIJUANA; ELEMENTS; PRESENT IN CASE AT BAR.— The
elements of illegal possession of marijuana are: (a) the accused is in possession
of an item or object which is identified to be a prohibited drug; (b) such
possession is not authorized by law; and (c) the accused freely and consciously
possessed the said drug. The identity of either appellant as a possessor of the
seized marijuana leaves is not an issue. Both were caught in flagrante delicto in
a standard police operation. The substance found in appellants' possession was
identified after laboratory analysis by Philippine National Police forensic chemist
Noemi Austero to be marijuana. Appellants' lack of authority to possess these
items was also established.
10. ID.; ID.; ID.; POSSESSION OF A PROHIBITED DRUG PER SE
CONSTITUTES PRIMA FACIE EVIDENCE OF KNOWLEDGE OR ANIMUS POSSIDENDI
SUFFICIENT TO CONVICT AN ACCUSED ABSENT A SATISFACTORY EXPLANATION
OF SUCH POSSESSION; CASE AT BAR. — Appellants' awareness of the prohibited
drug's character is also irrefutable. When stopped by the policemen, appellant
Tudtud was holding the plastic bag in one hand and a carton box in his other
hand, with appellant Bolong was helping him in carrying said box. Irrefutably,
appellants' animus possidendi existed together with the possession or control of
said articles. Recently, in People v. Tee, we held that possession of a prohibited
drug per se constitutes prima facie evidence of knowledge or animus possidendi
sufficient to convict an accused absent a satisfactory explanation of such
possession. In effect, the onus probandi must be shifted to the accused to
explain the absence of knowledge or consciousness of the element of
possession of the contraband, i.e. his animus possidendi. Appellants, in this
case, have failed to discharge this exculpatory burden.
11. ID.; ID.; ID.; IMPOSABLE PENALTY. — In sentencing both appellants to
reclusion perpetua and in imposing a fine of P500,000 upon each of them, the
trial court was not in error but only enforcing law and policy on prohibited and
dangerous drugs. Under R.A. No. 6425 as amended by R.A. No. 7659, the
penalty or reclusion perpetua to death and a fine ranging from five hundred
thousand pesos (P500,000) to ten million pesos (P10,000,000) shall be imposed
if the quantity of marijuana involved in a conviction for possession of marijuana
or Indian hemp is 750 grams or more. In the present case, the Chemistry Report
submitted by forensic chemist Noemi Austero states that the subject prohibited
drugs were: "(a) Dried suspected Marijuana fruiting tops weighing 3,200 grams
contained in a "King Flakes" box, and (b) Dried suspected Marijuana leaves
weighing 890.0 grams contained in pink and white plastic bag." The quantity of
the confiscated marijuana as proved by the prosecution weighs more than 4
kilos, much in excess of 750 grams cited, by the law as baseline for the penalty
involved. In the absence of any aggravating or mitigating circumstance, the
lower penalty of reclusion perpetua should be properly imposed, in view of Art.
63 of the Revised Penal Code.
DECISION
TINGA, J : p
. . . . It is desirable that criminals should be detected, and to that

end that all available evidence should be used. It also is desirable that
the government should not itself foster and pay for other crimes, when
they are the means by which the evidence is to be obtained. If it pays
its officers for having got evidence by crime, I do not see why it may
not as well pay them for getting it in the same way, and I can attach no
importance to protestations of disapproval if it knowingly accepts and
pays and announces that it will pay for the fruits. We have to choose,
and for my part I think it a less evil that some criminals should escape
than that the government should play an ignoble part. EAHDac
So wrote Justice Oliver Wendell Holmes in Olmstead v. U.S. 1 On this

occasion, this Court is made to choose between letting suspected criminals
escape or letting the government play an ignoble part.
Sometime during the months of July and August 1999, the Toril Police
Station, Davao City received a report from a "civilian asset" named Bobong
Solier about a certain Noel Tudtud. 2 Solier related that his neighbors have been
complaining about Tudtud, who was allegedly responsible for the proliferation
of marijuana in their area. 3
Reacting to the report, PO1 Ronald Desierto, PO1 Ramil Floreta and their
superior, SPO1 Villalonghan, 4 all members of the Intelligence Section of the
Toril Police Station, conducted surveillance in Solier's neighborhood in Sapa,
Toril, Davao City. 5 For five days, they gathered information and learned that
Tudtud was involved in illegal drugs. 6 According to his neighbors, Tudtud was
engaged in selling marijuana. 7
On August 1, 1999, Solier informed the police that Tudtud had headed to
Cotabato and would be back later that day with new stocks of marijuana. 8
Solier described Tudtud as big-bodied and short, and usually wore a hat. 9 At
around 4:00 in the afternoon that same day, a team composed of PO1 Desierto,
PO1 Floreta and SPO1 Villalonghan posted themselves at the corner of Saipon
and McArthur Highway to await Tudtud's arrival. 10 All wore civilian clothes. 11
About 8:00 later that evening, two men disembarked from a bus and
helped each other carry a carton 12 marked "King Flakes." 13 Standing some five
feet away from the men, PO1 Desierto and PO1 Floreta observed that one of
the men fit Tudtud's description. 14 The same man also toted a plastic bag. 15
PO1 Floreta and PO1 Desierto then approached the suspects and
identified themselves as police officers. 16 PO1 Desierto informed them that the
police had received information that stocks of illegal drugs would be arriving
that night. 17 The man who resembled Tudtud's description denied that he was
carrying any drugs. 18 PO1 Desierto asked him if he could see the contents of
the box. 19 Tudtud obliged, saying, "it was alright." 20 Tudtud opened the box
himself as his companion looked on. 21
The box yielded pieces of dried fish, beneath which were two bundles,
one wrapped in a striped plastic bag 22 and another in newspapers. 23 PO1
Desierto asked Tudtud to unwrap the packages. 24 They contained what
seemed to the police officers as marijuana leaves. 25
The police thus arrested Tudtud and his companion, informed them of
their rights and brought them to the police station. 26 The two did not resist. 27
The confiscated items were turned over to the Philippine National Police
(PNP) Crime Laboratory for examination. 28 Forensic tests conducted by Police
Chief Inspector Noemi Austero, forensic chemist of the PNP Crime Laboratory,
Region XI, on specimens taken from the confiscated items confirmed the police
officers' suspicion. The plastic bag contained 3,200 grams of marijuana leaves
while the newspapers contained another 890 grams. 29 Police Chief Inspector
Austero reduced her findings in her report, Physical Sciences Report No. D-220-
99 dated 2 August 1999. 30
Noel Tudtud and his companion, Dindo Bulong, were subsequently
charged 31 before the Regional Trial Court (RTC) of Davao City with illegal
possession of prohibited drugs. 32 Upon arraignment, both accused pleaded not
guilty. 33 The defense, however, reserved their right to question the validity of
their arrest and the seizure of the evidence against them. 34
Trial ensued thereafter.
The prosecution presented five witnesses, namely, arresting officers PO1
Desierto and PO1 Floreta, their civilian informant Bobong Solier, forensic
chemist Police Chief Inspector Noemi Austero, and SPO3 Nicolas Algabre,
exhibit custodian of the PNP Crime Laboratory. Said witnesses testified to the
foregoing narration of facts.
The accused, denying the charges against them, cried frame-up.
Noel Tudtud recalled that on August 1, 1999 he had gone to Kabacan,

North Cotabato to sell pairs of Levi's pants, which was his "sideline." 35 At about
5:00 in the afternoon, he returned to Davao City by bus. 36 Upon reaching Toril,
Tudtud, along with less than ten passengers, got down the bus. 37
Suddenly, a man who identified himself as a police officer approached
him, pointing a .38 caliber revolver. 38 The man told him not to run. 39 Tudtud
raised his arms and asked, "Sir, what is this about?" 40 The man answered that
he would like to inspect the plastic bag Tudtud was carrying, and instructed
Tudtud to open the bag, which revealed several pairs of Levi's pants. 41
The man then directed Tudtud to open a carton box some two meters
away. 42 According to Tudtud, the box was already there when he disembarked
the bus. 43 Tudtud told the man the box was not his, but proceeded to open it
out of fear after the man again pointed his revolver at him. 44 Tudtud
discovered pieces of dried fish, underneath which was something wrapped in
cellophane. 45
"What is that?" the man asked. 46 Tudtud replied that he did not know. 47
Without even unwrapping the cellophane, the man said it was marijuana and
abruptly handcuffed Tudtud. 48
Simultaneously, another man was pointing a firearm at Dindo Bolong at

the other side of the street, some eight meters from Tudtud. 49
Bolong recounted that he was on his way to a relative in Daliao after

attending a cousin's wedding in Hagonoy, Davao del Sur when he was
accosted. 50 After alighting the bus, Bolong crossed the street. 51 Someone then
approached him and pointed a gun at him. 52 The man ordered him not to move
and handcuffed him. 53 Bolong asked why he was being arrested but the man
just told him to go with them. 54
The suspects were then taken to the police station where, they would
later claim, they met each other for the first time. 55
Assailing the credibility of informant Bobong Solier, the defense offered
the testimonies of Felicia Julaton, 56 Branch 3 Clerk of Court, Claudio Bohevia, 57
Branch 7 Clerk of Court, and Mercedita Abunda, 58 Branch 9 Utility Clerk, all of
the Davao City Municipal Trial Circuit Court. They testified and presented court
documents showing that one "Bobo" or "Bobong" Ramirez was charged in their
respective branches with various crimes, specifically, light threats, less serious
physical injuries and robbery. The defense asserted that the "Bobo" or
"Bobong" Ramirez accused in these cases is the same person as the informant
Bobong Solier. 59
Swayed by the prosecution's evidence beyond reasonable doubt, the RTC
rendered judgment convicting both accused as charged and sentencing them
to suffer the penalty of reclusion perpetua and to pay a fine of P500,000.00. 60
On appeal, Noel Tudtud and Dindo Bolong assign, among other errors, the
admission in evidence of the marijuana leaves, which they claim were seized in
violation of their right against unreasonable searches and seizures.
The right against unreasonable searches and seizures is secured by

Section 2, Article III of the Constitution, which states:
SEC. 2. The right of the people to be secured in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the places to be
searched and the persons or things to be seized.
The rule is that a search and seizure must be carried out through or with
a judicial warrant; otherwise, such search and seizure becomes "unreasonable"
within the meaning of the above-quoted constitutional provision, and any
evidence secured thereby, will be inadmissible in evidence "for any purpose in
any proceeding." 61 Section 3 (2), Article III of the Constitution explicitly
provides:
(2) Any evidence obtained in violation of . . . the preceding
section shall be inadmissible for any purpose in any proceeding.
The proscription in Section 2, Article III, however, covers only

"unreasonable" searches and seizures. The following instances are not deemed
"unreasonable" even in the absence of a warrant:
1. Warrantless search incidental to a lawful arrest. (Sec. 12, Rule
126 of the Rules of Court and prevailing jurisprudence);
2. Search of evidence in "plain view. " The elements are: (a) a
prior valid intrusion based on the valid warrantless arrest in which the
police are legally present in the pursuit of their official duties; (b) the
evidence was inadvertently discovered by the police who have the
right to be where they are; (c) the evidence must be immediately
apparent; (d) "plain view" justified mere seizure of evidence without
further search;
3. Search of a moving vehicle. Highly regulated by the

government, the vehicle's inherent mobility reduces expectation of
privacy especially when its transit in public thoroughfares furnishes a
highly reasonable suspicion amounting to probable cause that the
occupant committed a criminal activity;
4. Consented warrantless search;
5. Customs search;
6. Stop and Frisk; and
7. Exigent and emergency circumstances. 62
The RTC justified the warrantless search of appellants' belongings under

the first exception, as a search incident to a lawful arrest. It cited as authorities
this Court's rulings in People v. Claudio , 63 People v. Tangliben , 64 People v.
Montilla, 65 and People v. Valdez . 66 The Office of the Solicitor General (OSG), in
arguing for the affirmance of the appealed decision, invokes the cases of People
v. Maspil, Jr., 67 People v. Malmstedt, 68 and People v. Bagista. 69
A search incidental to a lawful arrest is sanctioned by the Rules of Court.
Prior to its revision in 2000, Section 12, 70 Rule 126 of said Rules read as
follows:
SEC. 12. Search incident to lawful arrest. — A person lawfully
arrested may be searched for dangerous weapons or anything which
may be used as proof of the commission of an offense, without a
search warrant.
Section 5 (a), Rule 113 of the Rules, in turn, allows warrantless arrests:
SEC. 5. Arrest without warrant; when lawful. — A peace officer or
a 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;
xxx xxx xxx
It is significant to note that the search in question preceded the arrest.

Recent jurisprudence holds that the arrest must precede the search; the
process cannot be reversed. 71 Nevertheless, a search substantially
contemporaneous with an arrest can precede the arrest if the police have
probable cause to make the arrest at the outset of the search. 72 The question,
therefore, is whether the police in this case had probable cause to arrest
appellants. Probable cause has been defined as:
an actual belief or reasonable grounds of suspicion. The grounds
of suspicion are reasonable when, in the absence of actual belief of the
arresting officers, the suspicion that the person to be arrested is
probably guilty of committing the offense, is based on actual facts, i.e.,
supported by circumstances sufficiently strong in themselves to create
the probable cause of guilt of the person to be arrested. A reasonable
suspicion therefore must be founded on probable cause, coupled with
good faith of the peace officers making the arrest. 73
The long-standing rule in this jurisdiction, applied with a great degree of

consistency, is that "reliable information" alone is not sufficient to justify a
warrantless arrest under Section 5 (a), Rule 113. The rule requires, in addition,
that the accused perform some overt act that would indicate that he "has
committed, is actually committing, or is attempting to commit an offense."
In the leading case of People v. Burgos, 74 this Court held that "the officer
arresting a person who has just committed, is committing, or is about to
commit an offense must have personal knowledge of that fact. The offense
must also be committed in his presence or within his view." 75 In Burgos, the
authorities obtained information that the accused had forcibly recruited one
Cesar Masamlok as member of the New People's Army, threatening the latter
with a firearm. Upon finding the accused, the arresting team searched his
house and discovered a gun as well as purportedly subversive documents. This
Court, in declaring then Section 6 (a), Rule 113 of the Rules of Court
inapplicable, ruled that:
There is no such personal knowledge in this case. Whatever
knowledge was possessed by the arresting officers, it came in its
entirety from the information furnished by Cesar Masamlok. The
location of the firearm was given by the appellant's wife.
At the time of the appellant's arrest, he was not in actual

possession of any firearm or subversive document. Neither was he
committing any act which could be described as subversive. He was, in
fact, plowing his field at the time of the arrest.
The right of a person to be secure against any unreasonable

seizure of his body and any deprivation of his liberty is a most basic
and fundamental one. The statute or rule which allows exceptions to
the requirement of warrants of arrest is strictly construed. Any
exception must clearly fall within the situations when securing a
warrant would be absurd or is manifestly unnecessary as provided by
the Rule. We cannot liberally construe the rule on arrests without
warrant or extend its application beyond the cases specifically
provided by law. To do so would infringe upon personal liberty and set
back a basic right so often violated and so deserving of full protection.
76
Consequently, the items seized were held inadmissible, having been

obtained in violation of the accused's constitutional rights against
unreasonable searches and seizures.
In People v. Aminnudin, 77 this Court likewise held the warrantless arrest
and subsequent search of appellant therein illegal, given the following
circumstances:
. . . the accused-appellant was not, at the moment of his arrest,
committing a crime nor was it shown that he was about to do so or that
he had just done so. What he was doing was descending the gangplank
of the M/V Wilcon 9 and there was no outward indication that he called
for his arrest. To all appearances, he was like any of the other
passengers innocently disembarking from the vessel. It was only when
the former pointed to him as the carrier of the marijuana that he
suddenly became suspect and so subject to apprehension. It was the
furtive finger that triggered his arrest. The identification by the
informer was the probable cause as determined by the officers (and
not a judge) that authorized them to pounce upon Aminnudin and
immediately arrest him. 78

Thus, notwithstanding tips from confidential informants and regardless of
the fact that the search yielded contraband, the mere act of looking from side
to side while holding one's abdomen, 79 or of standing on a corner with one's
eyes moving very fast, looking at every person who came near, 80 does not
justify warrantless arrest under said Section 5 (a). Neither does putting
something in one's pocket, 81 handing over one's baggage, 82 riding a
motorcycle, 83 nor does holding a bag on board a trisikad 84 sanction State
intrusion. The same rule applies to crossing the street per se. 85
Personal knowledge was also required in the case of People v. Doria . 86

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

arrest because of "suspicious" circumstances: People v. Tangliben 88 (accused
was "acting suspiciously"), People v. Malmstedt 89 (a bulge on the accused's
waist), and People v. de Guzman 90 (likewise a bulge on the waist of the
accused, who was wearing tight-fitting clothes).
There is, however, another set of jurisprudence that deems "reliable

information" sufficient to justify a search incident to a warrantless arrest under
Section 5 (a), Rule 113, thus deviating from Burgos. To this class of cases
belong People v. Maspil, Jr. , 91 People v. Bagista, 92 People v. Balingan , 93 People
v. Lising, 94 People v. Montilla , 95 People v. Valdez , 96 and People v. Gonzales . 97
In these cases, the arresting authorities were acting on information regarding
an offense but there were no overt acts or suspicious circumstances that would
indicate that the accused has committed, is actually committing, or is
attempting to commit the same. Significantly, these cases, except the last two,
come under some other exception to the rule against warrantless searches.
Thus, Maspil, Jr. involved a checkpoint search, Balingan was a search of a
moving vehicle, Bagista was both, and Lising and Montilla were consented
searches.
Nevertheless, the great majority of cases conforms to the rule inBurgos,
which, in turn, more faithfully adheres to the letter of Section 5(a), Rule 113.
Note the phrase "in his presence" therein, connoting personal knowledge on
the part of the arresting officer. The right of the accused to be secure against
any unreasonable searches on and seizure of his own body and any deprivation
of his liberty being a most basic and fundamental one, the statute or rule that
allows exception to the requirement of a warrant of arrest is strictly construed.
Its application cannot be extended beyond the cases specifically provided by
law. 98
The cases invoked by the RTC and the OSG are, therefore, gravely
misplaced. In Claudio, 99 the accused, who was seated aboard a bus in front of
the arresting officer, put her bag behind the latter, thus arousing the latter's
suspicion. In Tangliben and Malmstedt, the accused had also acted suspiciously.
As noted earlier, Maspil, Jr. , Bagista and Montilla were justified by other
exceptions to the rule against warrantless searches. Montilla, moreover, was
not without its critics. There, majority of the Court held:
Appellant insists that the mere fact of seeing a person carrying a
traveling bag and a carton box should not elicit the slightest suspicion
of the commission of any crime since that is normal. But precisely, it is
in the ordinary nature of things that drugs being illegally transported
are necessarily hidden in containers and concealed from view. Thus,
the officers could reasonably assume, and not merely on a hollow
suspicion since the informant was by their side and had so informed
them, that the drugs were in appellant's luggage. It would obviously
have been irresponsible, if now downright absurd under the
circumstances, to require the constable to adopt a "wait and see"
attitude at the risk of eventually losing the quarry.
Here, there were sufficient facts antecedent to the search and

seizure that, at the point prior to the search were already constitutive
of probable cause, and which by themselves could properly create in
the minds of the officers a well-grounded and reasonable belief that
appellant was in the act of violating the law. The search yielded
affirmance both of that probable cause and the actuality that appellant
was then actually committing a crime by illegally transporting
prohibited drug. With these attendant facts, it is ineluctable that
appellant was caught in flagrante delicto , hence his arrest and the
search of his belongings without the requisite warrant were both
justified. 100
While concurring with the majority, Mr. Justice Vitug reserved his vote on
the discussion on the warrantless search being incidental to a lawful arrest. Mr.
Justice Panganiban, joined by Messrs. Justices Melo and Puno, filed a Separate
Opinion.
Although likewise concurring in the majority's ruling that appellant

consented to the inspection of his baggage, Justice Panganiban disagreed with
the conclusion that the warrantless search was incidental to a lawful arrest. He
argued that jurisprudence required personal knowledge on the part of the
officers making the in flagrante delicto arrest. In Montilla, the appellant "did not
exhibit any overt act or strange conduct that would reasonably arouse in their
minds suspicion that he was embarking on some felonious enterprise."
Law and jurisprudence in fact require stricter grounds for valid
arrests and searches without warrant than for the issuance of warrants
therefore. In the former, the arresting person must have actually
witnessed the crime being committed or attempted by the person
sought to be arrested; or he must have personal knowledge of facts
indicating that the person to be arrested perpetrated the crime that
had just occurred. In the latter case, the judge simply determines
personally from testimonies of witnesses that there exists reasonable
grounds to believe that a crime was committed by the accused.
xxx xxx xxx
To say that "reliable tips" constitute probable cause for a

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

opinion in People v. Doria, supra, where this Court ruled:
Accused-Appellant Gaddao was arrested solely on the basis of the
alleged identification made by her co-accused. PO3 Manlangit,
however, declared in his direct examination that appellant Doria
named his co-accused in response to his (PO3 Manlangit's) query as to
where the marked money was. Appellant Doria did not point to
appellant Gaddao as his associate in the drug business, but as the
person with whom he left the marked bills. This identification does not
necessarily lead to the conclusion that appellant Gaddao conspired
with her co-accused in pushing drugs. Appellant Doria may have left
the money in her house, with or without any conspiracy. Save for
accused-appellant Doria's word, the Narcom agents had no showing
that the person who affected the warrantless arrest had, in his own
right, knowledge of facts implicating the person arrested to the
perpetration of a criminal offense, the arrest is legally objectionable.
102 [Italics in the original.]
Expressing his accord with Mr. Justice Puno's ponencia, Justice Panganiban
said that Doria "rightfully brings the Court back to well-settled doctrines on
warrantless arrests and searches, which have seemingly been modified through
an obiter in People v. Ruben Montilla." 103
Montilla, therefore, has been seemingly discredited insofar as it sanctions

searches incidental to lawful arrest under similar circumstances. At any rate,
Montilla was a consented search. As will be demonstrated later, the same could
not be said of this case.
That leaves the prosecution with People v. Valdez , which, however,

involved an "on-the-spot information." The urgency of the circumstances, an
element not present in this case, prevented the arresting officer therein from
obtaining a warrant.
Appellants in this case were neither performing any overt act or acting in
a suspicious manner that would hint that a crime has been, was being, or was
about to be, committed. If the arresting officers' testimonies are to be believed,
appellants were merely helping each other carry a carton box. Although
appellant Tudtud did appear "afraid and perspiring," 104 " p a l e " 105 and
"trembling," 106 this was only after, not before, he was asked to open the said
box.
In no sense can the knowledge of the herein arresting officers that

appellant Tudtud was in possession of marijuana be described as "personal,"
having learned the same only from their informant Solier. Solier, for his part,
testified that he obtained his information only from his neighbors and the
friends of appellant Tudtud:
Q — What was your basis in your report to the police that Tudtud is
going to Cotabato and get stocks of marijuana?
A — Because of the protest of my neighbors who were saying who will

be the person whou [sic] would point to him because he had
been giving trouble to the neighborhood because according to
them there are [sic] proliferation of marijuana in our place. That
was the complained [sic] of our neighbors.
Q — Insofar as the accused Tudtud is concerned what was your basis in

reporting him particularly?
A — His friends were the once who told me about it.
Q — For how long have you know [sic] this fact of alleged activity of
Tudtud in proliferation of marijuana?
A — About a month.
xxx xxx xxx
Q — Regarding the report that Tudtud went to Cotabato to get stocks

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

A — Because of the information of his neighbor. 107
In other words, Solier's information itself is hearsay. He did not even

elaborate on how his neighbors or Tudtud's friends acquired their information
that Tudtud was responsible for the proliferation of drugs in their neighborhood.
Indeed, it appears that PO1 Floreta himself doubted the reliability of their
informant. He testified on cross-examination:
Q — You mean to say that Bobot Solier, is not reliable?
A — He is trustworthy.
Q — Why [did] you not consider his information not reliable if he is
reliable?
A — (witness did not answer).
ATTY. CAÑETE:
Never mind, do not answer anymore. That's all. 108
The prosecution, on re-direct examination, did not attempt to extract any

explanation from PO1 Floreta for his telling silence.
Confronted with such a dubious informant, the police perhaps felt it

necessary to conduct their own "surveillance." This "surveillance," it turns out,
did not actually consist of staking out appellant Tudtud to catch him in the act
of plying his illegal trade, but of a mere "gather[ing] of information from the
assets there." 109 The police officers who conducted such "surveillance" did not
identify who these "assets" were or the basis of the latter's information. Clearly,
such information is also hearsay, not of personal knowledge.
Neither were the arresting officers impelled by any urgency that would
allow them to do away with the requisite warrant, PO1 Desierto's assertions of
lack of time 110 notwithstanding. Records show that the police had ample
opportunity to apply for a warrant, having received Solier's information at
around 9:00 in the morning; Tudtud, however, was expected to arrive at around
6:00 in the evening of the same day. 111 In People v. Encinada , supra, the Court
ruled that there was sufficient time to procure a warrant where the police
officers received at 4:00 in the afternoon an intelligence report that the
accused, who was supposedly carrying marijuana, would arrive the next
morning at 7:00 a.m.:
Even if the information was received by Bolonia about 4:00 p.m.
of May 20, 1992 at his house, there was sufficient time to secure a
warrant of arrest, as the M/V Sweet Pearl was not expected to dock
until 7:00 a.m. the following day. Administrative Circular No. 13 allows
application for search warrants even after office hours:
"3. Raffling shall be strictly enforced, except only in case

where an application for search warrant may be filed directly
with any judge whose jurisdiction the place to be searched is
located, after office hours, or during Saturdays, Sundays, and
legal holidays, in which case the applicant is required to certify
under oath the urgency of the issuance thereof after office hours,
or during Saturdays, Sundays and legal holidays;" . . . .
The same procedural dispatch finds validation and reiteration in

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

"This Court has received reports of delay while awaiting
raffle, in acting on applications for search warrants in the
campaign against loose firearms and other serious crimes
affecting peace and order. There is a need for prompt action on
such applications for search warrant. Accordingly, these
amended guidelines in the issuance of a search warrant are
issued:
1. All applications for search warrants relating to violation
of the Anti-subversion Act, crimes against public order as defined
in the Revised Penal Code, as amended, illegal possession of
firearms and/or ammunition and violations of the Dangerous
Drugs Act of 1972, as amended, shall no longer be raffled and
shall immediately be taken cognizance of and acted upon by the
Executive Judge of the Regional Trial Court, Metropolitan Trial
Court, and Municipal Trial Court under whose jurisdiction the
place to be searched is located.
2. In the absence of the Executive Judge, the Vice-

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

Sundays and holidays, shall likewise be taken cognizance of and
acted upon by any judge of the Court having jurisdiction of the
place to be searched, but in such cases the applicant shall certify
and state the facts under oath, to the satisfaction of the judge,
that its issuance is urgent.
4. Any judge acting on such application shall immediately

and without delay personally conduct the examination of the
applicant and his witnesses to prevent the possible leakage of
information. He shall observe the procedures, safeguards, and
guidelines for the issuance of search warrants provided for in this
Court's Administrative Circular No. 13, dated October 1, 1985."
112 [Italics in the original.]
Given that the police had adequate time to obtain the warrant, PO1
Floreta's testimony that the real reason for their omission was their belief that
they lacked sufficient basis to obtain the same assumes greater significance.
This was PO1 Floreta's familiar refrain:
Q — When Solier reported to you that fact, that Tudtud will be coming
from Cotabato to get that (sic) stocks, you did not go to court to
get a search warrant on the basis of the report of Bobot Solier?
A — No.
Q — Why?
A — Because we have no real basis to secure the search warrant.
Q — When you have no real basis to secure a search warrant, you have
also no real basis to search Tudtud and Bulong at that time?
A — Yes, sir.
xxx xxx xxx
Q — And Bobot Solier told you that Tudtud, that he would already bring
marijuana?
A — Yes, Sir.
Q — And this was 9:00 a.m.?
A — Yes, Sir.
Q — The arrival of Tudtud was expected at 6:00 p.m.?
A — Yes, Sir.
Q — Toril is just 16 kilometers from Davao City?
A — Yes, Sir.
Q — And the Office of the Regional Trial Court is only about 16

kilometers, is that correct?
A — Yes, Sir.
Q — And it can be negotiated by thirty minutes by a jeep ride?

A — Yes, Sir.
Q — And you can asked [sic] the assistance of any prosecutor to apply
for the search warrant or the prosecutor do [sic] not assist?
A — They help.
Q — But you did not come to Davao City, to asked [sic] for a search
warrant?
A — As I said, we do not have sufficient basis. 113
It may be conceded that "the mere subjective conclusions of a police

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

searches and seizures if the following requisites are present:
1. It must appear that the rights exist;
2. The person involved had knowledge, actual or constructive, of the

existence of such right;
3. Said person had an actual intention to relinquish the right. 115
Here, the prosecution failed to establish the second and third requisites.
Records disclose that when the police officers introduced themselves as such
and requested appellant that they see the contents of the carton box
supposedly containing the marijuana, appellant Tudtud said "it was alright." He
did not resist and opened the box himself.
The fundamental law and jurisprudence require more than the presence
of these circumstances to constitute a valid waiver of the constitutional right
against unreasonable searches and seizures. Courts indulge every reasonable
presumption against waiver of fundamental constitutional rights; acquiescence
in the loss of fundamental rights is not to be presumed. 116 The fact that a
person failed to object to a search does not amount to permission thereto.
. . . . As the constitutional guaranty is not dependent upon any
affirmative act of the citizen, the courts do not place the citizen in the
position of either contesting an officer's authority by force, or waiving
his constitutional rights; but instead they hold that a peaceful
submission to all search or seizure is not a consent or an invitation
thereto, but is merely a demonstration of regard for the supremacy of
the law. 117 [Emphasis supplied.]
Thus, even in cases where the accused voluntarily handed her bag 118 or
the chairs 119 containing marijuana to the arresting officer, this Court held there
was no valid consent to the search.
On the other hand, because a warrantless search is in derogation of a
constitutional right, peace officers who conduct it cannot invoke regularity in
the performance of official functions and shift to the accused the burden of
proving that the search was unconsented. 120
In any case, any presumption in favor of regularity would be severely

diminished by the allegation of appellants in this case that the arresting officers
pointed a gun at them before asking them to open the subject box. Appellant
Tudtud testified as follows:
Q — This person who approached you according to you pointed
something at you[.] [What] was that something?
A — A 38 cal. Revolver.
Q — How did he point it at you?
A — Like this (Witness demonstrating as if pointing with his two arms
holding something towards somebody).
Q — This man[,] what did he tell you when he pointed a gun at you?
A — He said do not run.
Q — What did you do?
A — I raised my hands and said "Sir, what is this about?"

Q — Why did you call him Sir?
A — I was afraid because when somebody is holding a gun, I am afraid.
Q — Precisely, why did you address him as Sir?

A — Because he was holding a gun and I believed that somebody who
is carrying a gun is a policeman.
Q — When you asked him what is this? What did he say?
A — He said "I would like to inspect what you are carrying. ["]
xxx xxx xxx

Q — What did you say when you were asked to open that carton box?
A — I told him that is not mine.
Q — What did this man say?

A — He again pointed to me his revolver and again said to open.
Q — What did you do?
A — So I proceeded to open for fear of being shot. 121
Appellants' implied acquiescence, if at all, could not have been more than
mere passive conformity given under coercive or intimidating circumstances
and is, thus, considered no consent at all within the purview of the
constitutional guarantee. 122 Consequently, appellants' lack of objection to the
search and seizure is not tantamount to a waiver of his constitutional right or a
voluntary submission to the warrantless search and seizure. 123
As the search of appellants' box does not come under the recognized
exceptions to a valid warrantless search, the marijuana leaves obtained thereby
are inadmissible in evidence. And as there is no evidence other than the
hearsay testimony of the arresting officers and their informant, the conviction
of appellants cannot be sustained.
The Bill of Rights is the bedrock of constitutional government. If people

are stripped naked of their rights as human beings, democracy cannot survive
and government becomes meaningless. This explains why the Bill of Rights,
contained as it is in Article III of the Constitution, occupies a position of primacy
in the fundamental law way above the articles on governmental power. 124
The right against unreasonable search and seizure in turn is at the top of
the hierarchy of rights, 125 next only to, if not on the same plane as, the right to
life, liberty and property, which is protected by the due process clause. 126 This
is as it should be for, as stressed by a couple of noted freedom advocates, 127
the right to personal security which, along with the right to privacy, is the
foundation of the right against unreasonable search and seizure "includes the
right to exist, and the right to enjoyment of life while existing." Emphasizing
such right, this Court declared in People v. Aruta:
Unreasonable searches and seizures are the menace against
which the constitutional guarantees afford full protection. While the
power to search and seize may at times be necessary to the public
welfare, still it may be exercised and the law enforced without
transgressing the constitutional rights of the citizens, for the
enforcement of no statute is of sufficient importance to justify
indifference to the basic principles of government.
Those who are supposed to enforce the law are not justified in
disregarding the rights of the individual in the name of order. Order is
too high a price to pay for the loss of liberty. As Justice Holmes
declared: "I think it is less evil that some criminals escape than that
the government should play an ignoble part." It is simply not allowed in
free society to violate a law to enforce another, especially if the law
violated is the Constitution itself. 128
Thus, given a choice between letting suspected criminals escape or letting

the government play an ignoble part, the answer, to this Court, is clear and
ineluctable.
WHEREFORE, the Decision of the Regional Trial Court of Davao City is
REVERSED. Appellants Noel Tudtud y Paypa and Dindo Bolong y Naret are
hereby ACQUITTED for insufficiency of evidence. The Director of the Bureau of
Prisons is ordered to cause the immediate release of appellants from
confinement, unless they are being held for some other lawful cause, and to
report to this Court compliance herewith within five (5) days from receipt
hereof. cEaTHD
SO ORDERED.
Bellosillo, Austria-Martinez and Callejo, Sr., JJ ., concur.
Separate Opinions
QUISUMBING, J., dissenting:
I respectfully differ from the majority of my brethren on this case. I vote to

sustain the decision 1 dated March 8, 2000, the Regional Trial Court of Davao
City, Branch 17, which convicted in Criminal Case No. 43,817-99 appellants
Noel Tudtud y Paypa and Dindo Bolong 2 y Naret, and imposed upon each of
them the penalty of reclusion perpetua and a fine of P500,000, for illegal
possession of prohibited drugs.
For emphasis, I quote hereunder the information against the appellants
filed by the prosecution:
That on or about August 1, 1999, in the City of Davao,
Philippines, and within the jurisdiction of this Honorable Court, the
above-mentioned accused, conspiring, confederating together and
helping one another, wilfully, unlawfully and feloniously and with intent
to possess and without being authorized by law had in their possession
two (2) packages of Marijuana leaves and stems with leaves, weighing
890 grams and 3.2 kgs. more or less, respectively, which are
prohibited drugs.

CONTRARY TO LAW. 3
There is no doubt in my mind that appellants are guilty of the illegal

possession of prohibited drugs found by the police inside their carton box. The
facts and the law support the findings of the trial court, leading to the
conviction of as well the penalty imposed upon appellants.
Allow me to restate the facts and my reasons for this dissent.
Sometime in the months of July and August 1999, PO1 Ronald Desierto
assigned at Police Precinct 8, Toril, Davao City, received a tip from their
"civilian asset," Bobong Solier, that appellant Noel Tudtud was involved in the
prohibited drug trade. According to Solier, Tudtud got his stocks of marijuana
from Cotabato. The information was entered in the police blotter, 4 after which
PO1 Desierto and other members of the Intelligence Section of Toril Precinct 8
conducted surveillance on Tudtud for five (5) days. 5 Gathering information
from other secret informants in the vicinity and from Tudtud's neighbors,
Solier's tip to the police was validated. 6
In the morning of August l, 1999, Bobong Solier informed Precinct 8

officers that appellant Tudtud went on another trip to Cotabato and was
expected to arrive in the afternoon of the same day with a load of marijuana. 7
A team was immediately formed, which included PO1 Ronald Desierto, SPO1
Villanueva 8 and PO1 Ramil Floreta. They posted themselves at the corner of
Saypon, MacArthur Highway, Toril, Davao City. 9 They waited from 4:00 p.m.
until 8:00 p.m., when a Weena bus stopped and appellants disembarked. 10
Tudtud alighted holding a plastic bag with his right hand while his left hand was
holding a carton box with the markings "King Flakes." Appellant Bolong helped
Tudtud carry the carton box with his right hand. 11
PO1 Desierto and Floreta approached appellants and identified

themselves as police officers. 12 For security purposes, SPO1 Villanueva stood
ten (10) meters away from them. 13 PO1 Desierto and Floreta told appellants
that they received information of the arrival of illegal drugs. They requested
appellants if they could be allowed to see the contents of the carton box.
Appellant Tudtud said "okay" and opened the carton box himself. 14 PO1
Desierto and Floreta saw dried sliced fish on top of the carton box. PO1
Desierto requested Tudtud to take the dried sliced fish out of the carton box. 15
Inside the box, something was wrapped in a striped plastic bag, while another
bundle was wrapped in a newspaper. PO1 Desierto again requested Tudtud to
open the striped plastic bag and the bundle wrapped in newspaper. When
appellant Tudtud opened the striped plastic bag, PO1 Desierto and Floreta saw
leaves, which appeared to be marijuana. 16 Likewise, the contents of the bundle
wrapped with newspaper revealed what appeared to be marijuana stalks with
leaves. 17
Appellants, who did not resist arrest, were forthwith informed of their right
to counsel and to remain silent. They were brought to the police station where
the foregoing incident was recorded in the police blotter. 18
The seized packages of suspected marijuana, weighing 820 grams and
3.2 kilograms, were referred to the PNP Crime Laboratory, Region XI, Davao
City, for examination. The forensic result revealed that the dried leaves were
indeed marijuana. 19
For his defense, appellant NOEL TUDTUD testified that in the morning of
August 1, 1999, he left for Kabacan, North Cotabato to sell ten pieces of Levis
20 maong pants to students at the University of Southern Mindanao. 21 He left
for Davao City in the afternoon, taking the Weena bus crossing Bayabas and
arrived at Toril at about 8:30 p.m., where he alighted before going to his
residence at Sapa, Crossing Bayabas, Toril, Davao City. After the bus left,
somebody whom he later identified as PO1 Desierto aimed a gun at him and
ordered him to open a box, which yielded marijuana leaves. He denied carrying
said carton box or knowing its contents but despite his pleas he was
handcuffed and brought to the Toril Police Station along with somebody whom
he had never met before, herein co-appellant Dindo Bolong.
In his own testimony, co-appellant DINDO BOLONG likewise denied

knowing Noel Tudtud. He too, disclaimed any knowledge of a carton box
containing the subject marijuana. He denied having carried said carton box
together with his co-appellant. He narrated that on August 1, 1999, he went to
Hagonoy, Davao del Sur, to do an errand for his cousin who was about to get
married. In the afternoon of that day, he boarded a Weena bus going back to
Calinan, Davao City, but decided to drop by at Toril, Davao City, to meet a
relative. When he alighted at the crossing of Bayabas and Toril in Davao City, at
about 8:30 p.m., he and another man, herein appellant Tudtud, were
apprehended by a man who handcuffed them. They were at once brought
together to the Toril Police Station.
In its decision dated March 8, 2000, the trial court disbelieved the version
of the defense and gave credence to the testimony of the apprehending
officers, as corroborated by the Philippine National Police forensic chemist. The
trial court found appellants guilty, as follows:
WHEREFORE, finding the evidence of prosecution more than
sufficient to prove the guilt of both accused of the offense charged
beyond reasonable doubt, pursuant to the provision of Sec. 8, Art. 11 of
the Republic Act 6575, as amended by Republic Act 7659, Sec. 20 Art.
4, without any aggravating nor mitigating circumstances attendant in
the commission of the offense charged, both above-named accused,
Noel Tudtud y Paypa and Dindo Bolong y Naret, are sentenced to suffer
an imprisonment of reclusion perpetua, together with all accessory
penalty as provided for by law and to pay a fine of P500,000.00 in favor
of the government.
The confiscated subject marijuana dried leaves, placed in a
carton box with name "King Flakes" marked Exh. "A" and "B" for the
prosecution, are ordered confiscated in favor of the government, and
are turn-over (sic) to the Office of the Narcotics Command, Davao City,
for its immediate destruction through burning, as the circumstances,
will warrant.
SO ORDERED. 22

Hence, the present appeal before us. Appellant Noel Tudtud assigned in
his Brief several errors. 23
On July 19, 2001, appellant Dindo Bolong filed a manifestation, adopting

appellant Tudtud's brief as his own. 24
In our view, the resolution of this appeal hinges on the following issues:
(1) whether the warrantless arrest, search and seizure effected by the police
officers are unlawful; (2) whether the prosecution's evidence suffices to sustain
a finding of guilt with moral certainty; and (3) whether the penalty of reclusion
perpetua and the fine of P500,000 imposed on each appellant are proper.
On the first issue, appellants contend that the warrantless arrest of
appellants and the search and seizure of the marijuana leaves were irregular,
hence unlawful. They claim that the marijuana allegedly seized from them was
a product of an illegal search, hence, inadmissible in evidence. CHcTIA
The Office of the Solicitor General (OSG), however, argues that the
findings and conclusions of the trial court should be sustained. According to the
OSG, the law permits the warrantless search and seizure of the marijuana as an
incident to a lawful arrest. I am squarely in agreement with the OSG's
submission.
The validity of the warrantless arrest and the search made by the police
upon the persons of appellants, as well as the seizure of the marijuana leaves,
as herein presented, is no longer a matter of first impression. Jurisprudence is
replete with cases on this score.
Section 2, Article III of the Constitution, ordains that a search and seizure
must be carried out through or on the strength of a judicial warrant, absent
which such search and seizure becomes "unreasonable" 25 and that evidence
secured on the occasion of such an unreasonable search and seizure shall be
inadmissible in evidence for any purpose in any proceeding. 26 But this
exclusionary rule is not, however, an absolute and rigid proscription. Section
5(a), Rule 113 of the Rules of Court 27 provides one such exception where 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. In the case at hand,
appellants, were caught in flagrante delicto, since they were carrying marijuana
at the time of their arrest. A warrantless arrest, under this circumstance, is
legitimate. It also necessarily cloaks the arresting police officer with authority
to search and seize from the offender contraband or prohibited material and
whatever may be used as proof of the offense being committed.
However, the instances of permissible arrests set out in Section 5(a) of

Rule 113, do not dispense with the requisite probable cause before a
warrantless search and seizure can be lawfully conducted. In these cases,
probable cause must only be based on reasonable ground of suspicion or belief
that a crime has been committed or is about to be committed. 28 The required
probable cause that will justify a warrantless search and seizure is not
determined by a fixed formula but is resolved according to the facts of each
case.
In this case, I note that the arresting officers personally verified the
information tipped to them by their civilian informant concerning appellant
Tudtud's drug trafficking activities. After receiving this information from Solier,
PO1 Desierto and other members of the Intelligence Section of Toril Precinct,
conducted surveillance operations on appellants for five (5) days and confirmed
the tip. 29 Having verified Solier's data, the police officers had personal
knowledge of the probable cause to believe the subsequent tip-off in the
morning of August 1, 1999 that on that day, Tudtud was on another trip to
Cotabato to replenish his stocks of marijuana and was expected to arrive in the
afternoon of the same day. 30 Further, the informant described in detail the
personal circumstances of appellant Tudtud, i.e. that he was short, burly, and
usually wore a baseball cap. PO1 Desierto and his team already had leases as
to the identity of the person they were looking for. 31 It was indubitable,
therefore, that the police team of PO1 Desierto had probable cause to search
appellant Tudtud's belongings since he fitted the description given by the
civilian asset. 32
The warrantless search and seizure is further justified by lack of material

time to apply for a search warrant. Faced with such on-the-spot information
that Tudtud would arrive that same day with the prohibited drugs, the law
enforcers had to respond quickly. As often said, it is necessary to adopt a
realistic appreciation of the physical and tactical problems of the police, instead
of critically viewing them from the placid and clinical environment of judicial
chambers, 33 if courts of justice wish to be of understanding assistance to law
enforcement agencies in the fight against crime.
Moreover, appellants consented to the search in this case. This, to me, is

established not merely from the words but the actions taken hereon. When the
officers approached appellants, they formally introduced themselves as
policemen. They inquired from appellants about the contents of their luggage,
and requested appellant Tudtud to open the box. Although trembling appellant
Tudtud agreed to the request. 34 Neither did appellant Bolong resist the search.
I n People v. Cuizon, 35 we held that illegal drugs discovered as a result of
consented search is admissible in evidence. And, in People v. Montilla , 36 when
an individual voluntarily submits to a search or consents to have the same
conducted upon his person or premises, he is precluded from later complaining
thereof.
Circumstances considered, I believe that there was a valid warrantless

search by the police officer. Any evidence obtained during the course of said
search is admissible in evidence against appellants.
On the second issue, I concur in the trial court's conclusion that the
prosecution has proved appellants' guilt for violation of Section 8 37 of the
Dangerous Drugs Act beyond reasonable doubt, for the following reasons:
The elements of illegal possession of marijuana are: (a) the accused is in

possession of an item or object which is identified to be a prohibited drug; (b)
such possession is not authorized by law; and (c) the accused freely and
consciously possessed the said drug. 38
The identity of either appellant as a possessor of the seized marijuana

leaves is not at issue. Both were caught in flagrante delicto in a standard police
operation. The substance found in appellants' possession was identified after
laboratory analysis by Philippine National Police forensic chemist Noemi Austero
to be marijuana. 39 Appellants' lack of authority to possess these items was also
established.
Appellants' awareness of the prohibited drug's character is also

irrefutable. When stopped by the policemen, appellant Tudtud was holding the
plastic bag in one hand and a carton box in his other hand, with appellant
Bolong as helping him in carrying said box. Irrefutably, appellants' animus
possidendi existed together with the possession or control of said articles.
Recently, in People v. Tee , 40 we held that possession of a prohibited drug per
se constitutes prima facie evidence of knowledge or animus possidendi
sufficient to convict an accused absent a satisfactory explanation of such
possession. In effect, the onus probandi must be shifted to the accused to
explain the absence of knowledge or consciousness of the element of
possession of the contraband, i.e. his animus possidendi. 41 Appellants, in this
case, have failed to discharge this exculpatory burden.
The conspiracy to commit the offense between appellants Noel Tudtud

and Dindo Bolong clearly appears from the records. They were apprehended at
the same time. They alighted together from the bus at the highway corner of
Toril, Davao City. Appellant Bolong was helping his co-appellant Tudtud carry
the "King Flakes" carton box, which contained what turned out to be a large
quantity of dried marijuana leaves covered by dried fish and concealed in
plastic and newspaper wrapper. These factors convince me that indeed the two
appellants had conspired together and helped each other in the commission of
the offense.
As the trial court explained, the frame-up angle in this case that
appellants wish to peddle in their defense does not inspire belief. Like alibi, the
defense of frame-up is viewed with disfavor, because it is easily concocted. It is
a common and standard line of defense in cases arising from violations of the
Dangerous Drugs Act. 42 Appellant Tudtud's alibi that he came from Kabacan,
North Cotabato, where he sold Levis jeans, is uncorroborated. In his
memorandum, he referred to Exh. "F," claiming that the apprehending officers
had confiscated the six pants then in his possession, 43 although Exh. "F" refers
to the entry in the police blotter on the arrest of both appellants, with no
mention of a plastic bag containing 6 Levis jeans. 44 In the same vein, the
defense of appellant Dindo Bolong, that he took the bus from Hagonoy, Davao
del Sur, after delivering invitations for his cousin's wedding, remains a bare
allegation that is not substantiated. The version of the incident by the police
officers, coming as it did from law enforcers presumed to have regularly
performed their duty in the absence of proof to the contrary, 45 and accepted as
credible by the trial court, has not been discredited at all by appellants who
claimed a frame-up without sufficient bases.
Appellants next assail the credibility of the civilian informant, witness
Bobong Solier, on the ground that various informations and complaints had
been filed against him in the City Court and Regional Trial Court of Davao City.
But it should be stressed that witness Solier's testimony is not essential for the
conviction of the appellants. Testimony of the police informant in an illegal drug
case is merely cumulative and corroborative of the apprehending officers'
eyewitness testimonies. 46 Moreover, Solier's tip-off was not the sole basis for
the police operation in this case as there was prior surveillance conducted by
the police. As it stands, Solier's testimony merely buttressed the case for the
prosecution.
The investigative including laboratory procedures adopted in this regard

by Chief Inspector Noemi Austero are being criticized by appellants. They
lament that the Duquenois Levine Test conducted by Austero at the PNP Crime
Laboratory on the confiscated leaves was inconclusive in regard to determining
whether the confiscated items were indeed marijuana, absent any confirmatory
or other tests. However, nothing on record effectively negates the finding of the
trial court that the test was regularly performed. The trial court's evaluation of
the credibility of witnesses and their testimonies is entitled to great respect and
will not be disturbed on appeal, unless there appears on record some facts of
weight and substance that have been overlooked, misapprehended, or
misapplied by the trial court.
The trial court, in my view, did not err in ruling that the prosecution has
established the guilt of appellants beyond reasonable doubt. Appellants are
guilty of illegal possession of a prohibited drug under Section 8 of Republic Act
6425, which provides:
SEC. 8. Possession or Use of Prohibited Drugs. — The penalty of
reclusion perpetua to death and a fine ranging from five hundred
thousand pesos to ten million pesos shall be imposed upon any person
who, unless authorized by law, shall possess or use any prohibited drug
subject to the provisions of Section 20 hereof. (As amended by
Republic Act 7659.)
In sentencing both appellants to reclusion perpetua and in imposing a fine

of P500,000 upon each of them, the trial court was not in error but only
enforcing law and policy on prohibited and dangerous drugs. Under R.A. No.
6425 as amended by R.A. No. 7659, the penalty of reclusion perpetua to death
and a fine ranging from five hundred thousand pesos (P500,000) to ten million
pesos (P10,000,000) shall be imposed if the quantity of marijuana involved in a
conviction for possession of marijuana or Indian hemp is 750 grams or more. 47
In the present case, the Chemistry Report submitted by forensic chemist

Noemi Austero states that the subject prohibited drugs were: "(a) Dried
suspected Marijuana fruiting tops weighing 3,200 grams contained in a "King
Flakes" box, and (b) Dried suspected Marijuana leaves weighing 890.0 grams
contained in pink and white plastic bag." 48 The quantity of the confiscated
marijuana as proved by the prosecution weighs more than 4 kilos, much in
excess of 750 grams cited by the law as baseline for the penalty involved. In
the absence of any aggravating or mitigating circumstance, the lower penalty
o f reclusion perpetua should be properly imposed, in view of Art. 63 of the
Revised Penal Code. 49
To conclude, I am of the considered view that the judgment of the
Regional Trial Court convicting the appellants, as well as the penalty of
reclusion perpetua imposed on them, should be affirmed.
Footnotes
1. 277 U.S. 438, 470 (1927); 72 L. Ed. 944.

2. TSN, 15 November 1999, p. 5.
3. TSN, 28 January 2000, p. 3.
4. Also appears as "SPO2 Villalongja" in the Records.

5. TSN, 15 November 1999, p. 7; TSN, 16 November 1999.
6. Id., at 7–8.
7. Id., at 8; TSN, 16 November 1999, p. 6.

8. Ibid. ; id., at 7.
9. Ibid. ; id., at 8–9.
10. TSN, 15 November 1999, p. 9; id., at 7.
11. Ibid.
12. Exhibit A.
13. TSN, 15 November 1999, pp. 9–10.
14. Id., at 9.
15. Ibid.
16. TSN, 15 November 1999, p. 11.
17. Ibid. , TSN, 16 November 1999, p. 10.

18. TSN, 16 November 1999, p. 10.
19. TSN, 15 November 1999, p. 11; TSN, 16 November 1999, pp. 10–11.
20. Ibid. ; id., at 11.
21. Ibid. , ibid.

22. Exhibit B.
23. TSN, 15 November 1999, pp. 11–12; TSN, 16 November 1999, p. 12.
24. TSN, 16 November 1999, p. 13.

25. TSN, 15 November 1999, p. 12; TSN, 16 November 1999, p. 13.
26. Id., at 13; id., at 14.
27. Ibid.
28. TSN, 15 November 1999, pp. 13–14; TSN, 16 November 1999, p. 14.
29. TSN, 12 November 1999, pp. 6–7.

30. Exhibit E.
31. The Information (Records, p. 1) against the accused reads:
That on or about August 1, 1999, in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the above-mentioned accused,
conspiring, confederating together and helping one another, willfully,
unlawfully and feloniously had in their possession two (2) packages of
Marijuana leaves and stems with leaves, weighing 890 grams and 3.2 kgs.
more or less, respectively, which are prohibited drugs.
Contrary to law.
32. Rep. Act No. 6425 (1972), sec. 8.
33. TSN, 29 October 1999, p. 2; Records, pp. 17–18.
34. Ibid.
35. TSN, 4 February 2000, p. 2.
36. Ibid.
37. TSN, 4 February 2000, pp. 2–3.

38. Id., at 4.
39. Ibid.
40. Ibid.
41. Ibid.
42. TSN, 4 February 2000, pp. 5–10.
43. Id., at 10.

44. Id., at 5.
45. Id., at 5, 10.
46. Id., at 5, 10.
47. Id., at 5, 10.

48. Id., at 5, 10.
49. Id., at 5.
50. TSN, 8 February 2000, p. 4.

51. Id., at 5.
52. Ibid.
53. Ibid.
54. TSN, 8 February 2000, p. 15.

55. Id., at 7, 14.
56. Id., at 19–21.
57. Id., at 23.
58. Id., at 26–27.

59. TSN, 4 February 2000, pp. 6–7.
60. Records, p. 148. The dispositive portion of the Decision dated 8 March 2000
reads:
WHEREFORE, finding the evidence of prosecution more than sufficient to prove

the guilt of both accused of the offense charged beyond reasonable doubt,
pursuant to the provision of Sec. 8[,] Art. 11 of the Republic Act 6575, as
amended by Republic Act 7659, Sec. 20[,] Art. 4, without any aggravating
nor mitigating circumstances attendant in the commission of the offense
charged, both above-named accused, Noel Tudtud [y] Paypa and Dindo
Bolong [y] Naret, are sentenced to suffer an [sic] imprisonment of reclusion
perpetua, together with all accessory penalty [sic] as provided for by law and
to pay a fine of P500,000.00 in favor of the government.
The confiscated subject marijuana dried leaves, placed in a carton box with brand
name "King Flakes" marked Exh. "A" and "B" for the prosecution, are ordered
confiscated in favor of the government, and are turn-over [sic] to the Office
of the Narcotics Command, Davao City, for its immediate destruction through
burning, as the circumstances, will warrant.
SO ORDERED.
61. People v. Barros , G.R. No. 90640, 29 March 1994, 231 SCRA 557.
62. People v. Bolasa , 378 Phil. 1073, 1078–1079 (1999).
63. G.R. No. L-72564,15 April 1988,160 SCRA 646 (1988).
64. G.R. No. 63630, 6 April 1990, 184 SCRA 220 (1990).
65. G.R. No. 123872, 30 January 1998, 285 SCRA 703 (1998).
66. 363 Phil. 481 (1999).
67. G.R. No. 85177, 20 August 1990, 188 SCRA 751 (1990).
68. G.R. No. 91107, 19 June 1991, 198 SCRA 401 (1991).
69. G.R. No. 86218, 12 September 1992, 214 SCRA 63 (1992).
70. Now Section 13, as amended.
71. People v. Chua Ho San, 367 Phil. 703 (1999), citing Malacat v. Court of Appeals ,
347 Phil. 462(1997).
72. 68 Am Jur 2d, Search and Seizure §114.
73. People v. Molina, G.R. No. 133917, 19 February 2001, 352 SCRA 174.
74. 228 Phil. 1 (1986).
75. Id., at 15.

76. Ibid.
77. G.R. No. L-74869, 6 July 1988, 163 SCRA 402 (1988). Griño-Aquino, J.,
dissented.
78. Id., at 409–410.

79. People v. Mengote , G.R. No. 87059, 22 June 1992, 210 SCRA 174 (1992).
80. Malacat v. Court of Appeals , 347 Phil. 462 (1997).
81. People v. Rodriguez , G.R. No. 79965, 25 May 1994, 232 SCRA 498 (1994).
82. People v. Cuizon , 326 Phil. 345 (1996).
83. People v. Encinada, 345 Phil. 301(1997).
84. People v. Molina, supra, note 72.
85. People v. Aruta , 351 Phil. 868 (1998).

86. 361 Phil. 595 (1999).
87. G.R. Nos. 136066-67,4 February 2003.
88. G.R. No. 63630, 6 April 1990, 184 SCRA 220.

89. Supra, note 68. Fernan, C.J., Narvasa, Cruz, Gutierrez and Gancayco, JJ. ,
dissented.
90. G.R. Nos. 117952-53, 14 February 2001, 351 SCRA 573. In De Guzman,
however, the narration of facts do not indicate how the arresting officer
"learned" that the accused was engaged in the sale of drugs, whether from
personal knowledge or through an informant.
91. Supra, note 67.
92. Supra, note 69.

93. 311 Phil. 290 (1995). Padilla, J., dissented.
94. 341 Phil. 801 (1997).
95. Supra, note 65.

96. Supra, note 66.
97. 417 Phil. 342 (2001).
98. People v. Salangga, G.R No. 100910, 25 July 1994, 234 SCRA 407.
99. Claudio involved information provided by the arresting office himself and,
hence, is not included in the above survey of cases.
100. People v. Montilla , supra, note 65, at 721–722.
101. Id., at 733–734.

102. People v. Doria , supra, note 86, at 632–633.
103. Id., at 642–643.
104. TSN, 16 November 1999, p. 18.
105. Id., at 124.

106. Ibid.
107. TSN, 08 January 2000, p. 3.
108. TSN, 16 November 1999, p. 29. Emphasis supplied.

109. TSN, 15 November 1999, p. 7.
110. Id., at 14.
111. TSN, 16 November 1999, p. 17.
112. People v. Encinada, supra, note 83, at 319–321.

113. Id., at 17, 28. Emphasis supplied.
114. United States ex rel Senk v. Brierly, 381 F. Supp. 447, 463 (1974).
115. People v. Burgos , supra; note 74; People v. Salangga , supra; note 98; People
v. Aruta, supra, note 85.
116. Ibid. ; ibid.; ibid.
117. Ibid. ; People v. Aruta , supra, note 85.
118. People v. Aruta , supra, note 85.
119. People v. Encinada, supra, note 83.

120. People v. Cubcubin , 413 Phil. 249 (2001). See also People v. Salanguit , G.R.
No. 133254-55,19 April 2001, 356 SCRA 683 (2001); People v. Encinada ,
supra, note 83.
121. TSN, February 4, 2000, pp. 4–5. See also Id., at 8, and TSN, 8 February 2000,
p. 5.
122. People v. Compacion , 414 Phil. 68 (2001).
123. Ibid.
124. C.f. Constitution, Arts. VI (Legislative Department), VII (Executive
Department), VIII (Judicial Department), IX (Constitutional Commissions) and
X (Local Government).
125. See CONST., art. III, sec. 2.
126. Id., sec. 1.

127. D. SANDIFER AND L. SCHEMAN, THE FOUNDATION OF FREEDOM 44–45 (1966).
128. People v. Aruta , supra, note 85, at 895.
QUISUMBING, J.:

1. Rollo , pp. 16–34.
2. Sometimes spelled as "Bulong" in other parts of the records.
3. Rollo , p. 8.
4. TSN, 15 November 1999, pp. 5–6.

5. Id. at 7.
6. Id. at 8.
7. Id. at 8, 17.
8. "Villalonja" and "Villalonghan" in other parts of the records.
9. TSN, 15 November 1999, pp. 8–9.
10. TSN, 16 November 1999, pp. 8–9.

11. Id. at 9.
12. TSN, 15 November 1999, p. 11.
13. Id. at 9.
14. Supra, note 12; TSN, 16 November 1999, p. 11.
15. TSN, 15 November 1999, pp. 11–12.
16. TSN, 16 November 1999, p. 13.
17. Ibid.
18. TSN, 15 November 1999, p. 13.
19. TSN, 12 November 1999, pp. 5–7; Records, p. 51, Exh. "E."
20. Sometimes spelled as "Levi" in other parts of the records.

21. TSN, 4 February 2000, pp. 2–3.
22. Rollo , p. 34.
23. Id. at 58.

24. Id. at 127.
25. CONST. ARTICLE III, Sec. 2. The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable, and no
search 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.
26. People v. Sarap, G.R. No. 132165, 26 March 2003, p. 5.
27. 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. (Emphasis supplied).
28. Supra, note 26 citing People v. Aruta , 351 Phil. 868, 881 (1998).
29. TSN, 15 November 1999, pp. 7–8.
30. Supra, note 7.
31. TSN, 16 November 1999, pp. 8–9.
32. See People v. Valdez , 363 Phil. 481, 489 (1999).

33. People v. Montilla , 349 Phil. 640, 658 (1998).
34. Supra, note 31 at 24.
35. 326 Phil. 345, 372 (1996).

36. Supra, note 33 at 661.
37. SEC. 8. Possession or Use of Prohibited Drugs. — The penalty of reclusion
perpetua to death and a fine ranging from five hundred thousand pesos to
ten million pesos shall be imposed upon any person who, unless authorized
by law, shall possess or use any prohibited drug subject to the provisions of
Section 20 hereof.
38. Manalili v. Court of Appeals, 345 Phil. 632, 650 (1997).
39. Records, p. 51, Exh. "E."

40. G.R. Nos. 140546-47, 20 January 2003, p. 30.
41. People v. Burton , 335 Phil. 1003, 1025 (1997).
42. People v. Rodriguez , G.R. No. 144399, 20 March 2002, p. 10.

43. Records, p. 86.
44. Id. at 52.
45. See People v. Padasin , G.R. No. 143671, 14 February 2003, p. 7; See also
People v. Che Chun Ting , G.R. Nos. 130568-69, 21 March 2000, 328 SCRA
592, 602.
46. People v. Zheng Bai Hui , G.R. No. 127580, 22 August 2000, 338 SCRA 420,
475–476.
47. Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or
Instruments of the crime. — The penalties for offenses under Sections 3, 4, 7,
8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act
shall be applied if the dangerous drugs involved is in any of the following
quantities:
1. 40 grams or more of opium;

2. 40 grams or more of morphine;
3. 200 grams or more of shabu or methylamphetamine hydrochloride;
4. 40 grams or more of heroin;
5. 750 grams or more of indian hemp or marijuana;

6. 50 grams or more of marijuana resin or marijuana resin oil;
7. 40 grams or more of cocaine or cocaine hydrochloride; or
8. In the case of other dangerous drugs, the quantity of which is far beyond
therapeutic requirements, as determined and promulgated by the Dangerous
Drugs Board, after public consultations/hearings conducted for the purpose.
Otherwise, if the quantity involved is less than the foregoing quantities, the
penalty shall range from prison correccional to reclusion perpetua depending
upon the quantity. (Emphasis supplied.)
48. Supra, note 40.
49. ART. 63. Rules for the application of indivisible penalties. — In all cases in
which the law prescribes a single indivisible penalty, it shall be applied by the
courts regardless of any mitigating or aggravating circumstances that may
have attended the commission of the deed.
In all cases in which the law prescribes a penalty composed of two indivisible
penalties the following rules shall be observed in the application thereof:
xxx xxx xxx
2. When there are neither mitigating nor aggravating circumstances in the

commission of the deed, the lesser penalty shall be applied.
xxx xxx xxx

2003-People v. Tudtud

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SECOND DIVISION

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

PEOPLE OF THE PHILIPPINES, plaintiﬀ-appellee, vs. NOEL

The Solicitor General for plaintiff-appellee.

12. ID.; ID.; ID.; MERE SUBJECTIVE CONCLUSIONS OF A POLICE OFFICER

14. ID.; ID.; ID.; REGULARITY IN THE PERFORMANCE OF OFFICIAL

5. ID.; EVIDENCE; CONSPIRACY; PRESENT IN CASE AT BAR — The

. . . . It is desirable that criminals should be detected, and to that

So wrote Justice Oliver Wendell Holmes in Olmstead v. U.S. 1 On this

Noel Tudtud recalled that on August 1, 1999 he had gone to Kabacan,

Simultaneously, another man was pointing a ﬁrearm at Dindo Bolong at

Bolong recounted that he was on his way to a relative in Daliao after

The right against unreasonable searches and seizures is secured by

The proscription in Section 2, Article III, however, covers only

3. Search of a moving vehicle. Highly regulated by the

7. Exigent and emergency circumstances. 62

The RTC justiﬁed the warrantless search of appellants' belongings under

xxx xxx xxx

It is signiﬁcant to note that the search in question preceded the arrest.

The long-standing rule in this jurisdiction, applied with a great degree of

At the time of the appellant's arrest, he was not in actual

The right of a person to be secure against any unreasonable

Consequently, the items seized were held inadmissible, having been

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Personal knowledge was also required in the case of People v. Doria . 86

In the following cases, the search was held to be incidental to a lawful

There is, however, another set of jurisprudence that deems "reliable

Here, there were suﬃcient facts antecedent to the search and

Although likewise concurring in the majority's ruling that appellant

To say that "reliable tips" constitute probable cause for a

Montilla would shortly ﬁnd mention in Justice Panganiban's concurring

Montilla, therefore, has been seemingly discredited insofar as it sanctions

That leaves the prosecution with People v. Valdez , which, however,

In no sense can the knowledge of the herein arresting oﬃcers that

A — Because of the protest of my neighbors who were saying who will

Q — Insofar as the accused Tudtud is concerned what was your basis in

xxx xxx xxx

Q — Regarding the report that Tudtud went to Cotabato to get stocks

xxx xxx xxx

In other words, Solier's information itself is hearsay. He did not even

Never mind, do not answer anymore. That's all. 108

The prosecution, on re-direct examination, did not attempt to extract any

Confronted with such a dubious informant, the police perhaps felt it

"3. Raﬄing shall be strictly enforced, except only in case

The same procedural dispatch ﬁnds validation and reiteration in

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2. In the absence of the Executive Judge, the Vice-

3. Applications ﬁled after oﬃce hours, during Saturdays,

4. Any judge acting on such application shall immediately

Q — And this was 9:00 a.m.?

Q — And the Oﬃce of the Regional Trial Court is only about 16

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

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

It may be conceded that "the mere subjective conclusions of a police

Finally, there is an eﬀective waiver of rights against unreasonable

2. The person involved had knowledge, actual or constructive, of the

In any case, any presumption in favor of regularity would be severely

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

Q — Precisely, why did you address him as Sir?

xxx xxx xxx