34

Valmonte vs. De Villa, 178 SCRA 211 , G.R. No. 83988, September 29, 1989G.R. No. 83988 September 29, 1989

RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLE'S RIGHTS (ULAP),petitioners,vs.GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT COMMAND,respondents.Ricardo C. Valmonte for himself and his co-petitioners.PADILLA,J.:This is a petition for prohibition with preliminary injunction and/or temporary restraining order, seeking the declaration of checkpoints in Valenzuela, Metro Manila or elsewhere, as unconstitutional and the dismantling and banning of the same or, in the alternative, to direct the respondents to formulate guidelines in the implementation of checkpoints, for the protection of the people.Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the Republic, taxpayer, member of the Integrated Bar of the Philippines (IBP), and resident of Valenzuela, Metro Manila; while petitioner Union of Lawyers and Advocates for People's Rights (ULAP) sues in its capacity as an association whose members are all members of the IBP.The factual background of the case is as follows:On 20 January 1987, the National Capital Region District Command (NCRDC) was activated pursuant to Letter of Instruction 02/87 of the Philippine General Headquarters, AFP, with the mission of conducting security operations within its area of responsibility and peripheral areas, for the purpose of establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the social, economic and political development of the National Capital Region.1As part of its duty to maintain peace and order, the NCRDC installed checkpoints in various parts of Valenzuela, Metro Manila.Petitioners aver that, because of the installation of said checkpoints, the residents of Valenzuela are worried of being harassed and of their safety being placed at the arbitrary, capricious and whimsical disposition of the military manning the checkpoints, considering that their cars and vehicles are being subjected to regular searches and check-ups, especially at night or at dawn, without the benefit of a search warrant and/or court order. Their alleged fear for their safety increased when, at dawn of 9 July 1988, Benjamin Parpon, a supply officer of the Municipality of Valenzuela, Bulacan, was gunned down allegedly in cold blood by the members of the NCRDC manning the checkpoint along McArthur Highway at Malinta, Valenzuela, for ignoring and/or refusing to submit himself to the checkpoint and for continuing to speed off inspire of warning shots fired in the air. Petitioner Valmonte also claims that, on several occasions, he had gone thru these checkpoints where he was stopped and his car subjected to search/check-up without a court order or search warrant.Petitioners further contend that the said checkpoints give the respondents a blanket authority to make searches and/or seizures without search warrant or court order in violation of the Constitution;2and, instances have occurred where a citizen, while not killed, had been harassed.Petitioners' concern for their safety and apprehension at being harassed by the military manning the checkpoints are not sufficient grounds to declare the checkpoints as per se illegal. No proof has been presented before the Court to show that, in the course of their routine checks, the military indeed committed specific violations of petitioners' right against unlawful search and seizure or other rights.In a case filed by the same petitioner organization,Union of Lawyers and Advocates for People's Right (ULAP) vs. Integrated National Police,3it was held that individual petitioners who do not allege that any of their rights were violated are not qualified to bring the action, as real parties in interest.The constitutional right against unreasonable searches and seizures is a personal right invocable only by those whose rights have been infringed,4or threatened to be infringed. What constitutes a reasonable or unreasonable search and seizure in anyparticular caseis purely a judicial question, determinable from a consideration of the circumstances involved.5Petitioner Valmonte's general allegation to the effect that he had been stopped and searched without a search warrant by the military manning the checkpoints, without more, i.e., without stating the details of the incidents which amount to a violation of his right against unlawful search and seizure, is not sufficient to enable the Court to determine whether there was a violation of Valmonte's right against unlawful search and seizure. Not all searches and seizures are prohibited. Those which are reasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case.6Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds,7or simply looks into a vehicle,8or flashes a light therein,9these do not constitute unreasonable search.The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be considered as a security measure to enable the NCRDC to pursue its mission of establishing effective territorial defense and maintaining peace and order for the benefit of the public. Checkpoints may also be regarded as measures to thwart plots to destabilize the government, in the interest of public security. In this connection, the Court may take judicial notice of the shift to urban centers and their suburbs of the insurgency movement, so clearly reflected in the increased killings in cities of police and military men by NPA "sparrow units," not to mention the abundance of unlicensed firearms and the alarming rise in lawlessness and violence in such urban centers, not all of which are reported in media, most likely brought about by deteriorating economic conditions which all sum up to what one can rightly consider, at the very least, as abnormal times. Between the inherent right of the state to protect its existence and promote public welfare and an individual's right against a warrantless search which is howeverreasonablyconducted, the former should prevail.True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform, in the same manner that all governmental power is susceptible of abuse. But, at the cost of occasional inconvenience, discomfort and even irritation to the citizen, the checkpoints during these abnormal times, when conducted within reasonable limits, are part of the price we pay for an orderly society and a peaceful community.Finally, on 17 July 1988, military and police checkpoints in Metro Manila were temporarily lifted and a review and refinement of the rules in the conduct of the police and military manning the checkpoints was ordered by the National Capital Regional Command Chief and the Metropolitan Police Director.10WHEREFORE, the petition is DISMISSED.SO ORDERED.

The Checkpoints Case : Valmonte v. De Villa, G.R. No. 83988 September 29, 1989 (173 SCRA 211)

D E C I S I O NPADILLA,J.:I.THE FACTSOn 20 January 1987, the National Capital Region District Command (NCRDC) was activated pursuant to Letter of Instruction 02/87 of the Philippine General Headquarters, AFP, with the mission of conducting security operations within its area of responsibility and peripheral areas, for the purpose of establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the social, economic and political development of the National Capital Region.As part of its duty to maintain peace and order, the NCRDC installed checkpoints in various parts of Valenzuela, Metro Manila.

Petitioners Atty. Ricardo Valmonte, who is a resident of Valenzuela, Metro Manila,and the Union of Lawyers and Advocates For Peoples Rights (ULAP) sought thedeclaration of checkpoints in Valenzuela, Metro Manila and elsewhere as unconstitutional. In the alternative, they prayed that respondents Renato De Villa and the National Capital Region District Command (NCRDC) be directed to formulate guidelines in the implementation of checkpoints for the protection of the people. Petitioners contended that the checkpoints gave the respondents blanket authority to make searches and seizures without search warrant or court order in violation of the Constitution.

II.THE ISSUEDo the military and police checkpoints violate the right of the people against unreasonable search and seizures?

III.THE RULING[The Court, voting 13-2, DISMISSED the petition.]NO,military and police checkpoints DO NOT violate the right of the people against unreasonable search and seizures.xxx. Not all searches and seizures are prohibited. Those which are reasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case.

Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds, or simply looks into a vehicle, or flashes a light therein, these do not constitute unreasonable search.

The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be considered as a security measure to enable the NCRDC to pursue its mission of establishing effective territorial defense and maintaining peace and order for the benefit of the public. Checkpoints may also be regarded as measures to thwart plots to destabilize the government, in the interest of public security. In this connection, the Court may take judicial notice of the shift to urban centers and their suburbs of the insurgency movement, so clearly reflected in the increased killings in cities of police and military men by NPA sparrow units, not to mention the abundance of unlicensed firearms and the alarming rise in lawlessness and violence in such urban centers, not all of which are reported in media, most likely brought about by deteriorating economic conditions which all sum up to what one can rightly consider, at the very least, as abnormal times.Between the inherent right of the state to protect its existence and promote public welfare and an individual's right against a warrantless search which is howeverreasonablyconducted, the former should prevail.True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform, in the same manner that all governmental power is susceptible of abuse. But,at the cost of occasional inconvenience, discomfort and even irritation to the citizen, the checkpoints during these abnormal times, when conducted within reasonable limits, are part of the price we pay for an orderly society and a peaceful community.FIRST DIVISION

185 SCRA 665G.R. No. 76005. April 23, 1993.PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.RODELIO C. EXALA, RESTITUTO B. BOCALAN and JAIME P. FERNANDEZ, accused, RESTITUTO B. BOCALAN, accused-appellant.

The Solicitor General for plaintiff-appellee.

Amador E. Mostajo and Presbiterio Velasco, Jr. for accused -appellant.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; "STOP-AND-SEARCH" AT A MILITARY OR POLICE CHECKPOINT, THE CONSTITUTIONALITY OF WHICH HAS BEEN UPHELD, IS ONE OF THE INSTANCES WHERE SEARCH AND SEIZURE CAN BE EFFECTED WITHOUT PRIOR ARREST OR WARRANT. There are indeed instances where search and seizure can be effected without necessarily being preceded by an arrest. An illustration would be the "stop-and-search" without a warrant at military or police checkpoints, the constitutionality of which has already been upheld by this Court. Vehicles are generally allowed to pass through these checkpoints after a routine inspection and answering a few questions. If vehicles are stopped and extensively searched it is because of some probable cause which justifies a reasonable belief of those manning the checkpoints that either the motorist is a law-offender or the contents of the vehicle are or have been instruments in the commission of an offense. However, lest it be misunderstood, this doctrine is not intended to do away with the general rule that no person shall be subjected to search of his person, personal effects and belongings, or his residence except by virtue of a search warrant or on the occasion of a lawful arrest. The case before Us is an incident to or an offshoot of a lawful "stop-and-search" at a military or police checkpoint.

2. ID.; ID.; THE RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE MAY BE WAIVED, AS IN THIS CASE. Their submissive stance after the discovery of the bag of marijuana, as well as the absence of any protest on their part when arrested, not only casts serious doubt on their professed innocence but also confirms their acquiescence to the search. Clearly then, there was waiver of the right against unreasonable search and seizure. In one case We held ". . . When one voluntarily submits to a search or consents to have it made of his person or premises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th Ed., Vol. I, p. 361). The right to be secure from unreasonable search and seizure may, like every right, be waived and such waiver may be made either expressly or impliedly."

3. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST MADE UPON DISCOVERY OF ACT OF DISPATCHING IN TRANSIT OR TRANSPORTING MARIJUANA IN VIOLATION OF SEC. 4, ART. II, R.A. 6425, AS AMENDED, IS LAWFUL AND REQUIRES NO WARRANT; AN INSTANCE OF WARRANTLESS ARREST UNDER SEC. 5, PAR. (A), RULE 113, 1985 RULES ON CRIMINAL PROCEDURE, AS AMENDED. The arrest of the three (3) accused was lawful because it was made upon the discovery of the prohibited drug in their possession. There was no need for a warrant; the arrest was made while a crime was committed. This is one of the situations envisioned by Sec. 5, par. (a), of Rule 113 of the 1985 Rules on Criminal Procedure, as amended, when a warrantless arrest may be made. The accused were caught in the act of dispatching in transit or transporting marijuana, in violation of Sec. 4, Art. II, of R.A. 6425, as amended.

4. ID.; ID.; WEIGHT OF FACTUAL CONCLUSIONS BY TRIAL COURT RELATIVE TO CREDIBILITY OF WITNESSES; CASE AT BAR. Factual conclusions by the trial court relative to the credibility of witnesses are entitled to great respect and are generally sustained by the appellate court unless some material facts have been overlooked or misconstrued as to affect the result. There is none in this case on appeal.

5. ID.; EVIDENCE; OBJECTION ON THE LEGALITY OF SEARCH AND ADMISSIBILITY OF EVIDENCE OBTAINED IN THE COURSE OF SEARCH IS WAIVED WHEN NOT RAISED BEFORE THE TRIAL COURT, AND THE COURT IS BOUND TO ADMIT THE EVIDENCE. We turn to the legal question on the admissibility of the marijuana as evidence in the light of Bocalan's contention that it was seized without a valid search warrant. Since the search was conducted prior to the arrest, Bocalan argues that it was not incident to a lawful arrest. This issue was never raised in the proceedings below. Bocalan never objected to the admissibility of the evidence on the ground that the same was obtained in a warrantless search. Consequently, he is deemed to have waived his objection on the legality of the search and the admissibility of the evidence obtained in the course thereof. In view of such waiver, the court is bound to admit evidence.

6. CRIMINAL LAW; MATERIALITY OF OWNERSHIP OF PROHIBITED DRUG IN A PROSECUTION FOR VIOLATION OF SEC. 4, ART. II, R.A. 6425, AS AMENDED. Proof of ownership is immaterial where the accused is charged with the unlawful transportation of marijuana. Section 4, Art. II, of R.A. 6425, as amended, does not require that one be the owner of the prohibited drug before he can be prosecuted for dispatching in transit or transporting a prohibited drug.

CRUZ, J., dissenting:

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; SEARCH AND SEIZURE AT AN ORDINARY CHECKPOINT IS ILLEGAL FOR LACK OF PROBABLE CAUSE AS ENVISIONED IN THE BILL OF RIGHTS. I do not agree that in the interest of peace and order, any or every vehicle may be stopped at any time by the authorities and searched without warrant on the chance that it may be carrying prohibited articles. That possibility is not the probable cause envisioned in the Bill of Rights. In the case of the ordinary checkpoint, there is not even any suspicion to justify the search. The search is made as a matter of course, either of all vehicles or at random. There is no showing that a crime is about to be committed, is actually being committed, or has just been committed and the searching officer has personal knowledge that the person being searched or arrested is the culprit . . . I realize that this view would result in the inadmissibility of the seized marijuana as evidence against the petitioner and in his inevitable acquittal. But as I have always maintained, we cannot retroactively validate an illegal search on the justification that, after all, the articles seized are illegal.

D E C I S I O N

BELLOSILLO, J p:

The admissibility of the evidence seized from the accused at a checkpoint after being stopped for routine inspection is put to test in this appeal from the decision 1 of the Regional Trial Court of Cavite City finding inter alia accused-appellant Restituto B. Bocalan guilty beyond reasonable doubt of violating Sec. 4, Art. II, of R.A. 6425, as amended, otherwise known as "The Dangerous Drugs Act of 1972."

On 2 November 1982, at about 8:15 in the evening, a private jeep driven by accused-appellant Restituto B. Bocalan was stopped at a police checkpoint in Cavite City for routine inspection regarding unlicensed firearms and other prohibited items. With Bocalan were his co-accused Jaime P. Fernandez and Rodelio C. Exala. Pfc. Ricardo Galang, a member of the inspection team, went near the jeep and asked the occupants if there were firearms inside. They answered in the negative. Pfc. Galang then proceeded to inspect the vehicle by beaming a flashlight inside. He noticed a black leather bag measuring about one (1) foot wide and two (2) feet long with its sides bulging. He asked what it contained. There was deadening silence. Nobody answered. Instead, the three (3) accused, Restituto B. Bocalan, Jaime P. Fernandez and Rodelio C. Exala, suddenly became fidgety. Suspicious, Pfc. Galang ordered the bag opened. He found what he excitedly described as "marijuana, marijuana, napakaraming marijuana!" At this juncture, the three (3) remained motionless in their seats and appeared petrified with fear. They were brought to the police station that same night for further investigation. 2

After laboratory examination, the bag was verified to contain more than two (2) kilos of Indian hemp otherwise known as marijuana. 3

Thereafter, Rodelio C. Exala, Restituto B. Bocalan and Jaime P. Fernandez were accordingly charged for violation of Sec. 4, Art. II, of R.A. 6425, as amended.

After trial, Bocalan was held guilty as principal and sentenced to life imprisonment. A fine of P25,000.00 was also imposed. 4 The other two (2) were convicted as accomplices and received lighter penalties. Fernandez appealed to the Court of Appeals. Exala did not.

Bocalan, whose punishment is reviewable only by this Court, is now before Us assailing his conviction; hence, We deal only with him in this appeal.

Appellant Bocalan seeks exculpation by imputing ownership of the bag to Exala alone. 5 Bocalan claims that while on the way to Cavite City, he and Fernandez offered Exala a ride. Exala accepted the offer and requested Bocalan to make a detour to Salitran, Dasmarias, Cavite, where he was to pick up some clothes. They agreed and Exala got the bag which he kept beside him all the time until their apprehension at the checkpoint. 6

Bocalan further contends that the trial court erred in admitting the bag as evidence against him since it was obtained through a warrantless search. The protestations of Bocalan are devoid of merit. We agree with the trial court that the conduct of Bocalan was not only unusual but also contrary to normal human experience. 8 He alleged that he knew Exala only by face and had no personal association with him; 9 yet, on that eventful day of 2 November 1982, he agreed to detour to Salitran which was some fifteen (15) to twenty (20) kilometers out of his way. Thus, his contention that it was Exala who owned the bag containing the marijuana is hardly credible.

On the other hand, Exala declared that it was he who did not know the contents of the bag as it was already in the jeep when he boarded it. Exala asserted that it was either Bocalan or Fernandez who owned the bag. Exala swore that Bocalan and Fernandez offered him P5,000.00, later raised to P10,000.00, to take the blame alone, but he refused. 10

Proof of ownership is immaterial where the accused is charged with the unlawful transportation of marijuana. 11 Section 4, Art. II, of R.A. 6425, as amended, does not require that one be the owner of the prohibited drug before he can be prosecuted for dispatching in transit or transporting a prohibited drug. The law simply provides thus

"Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The penalty of life imprisonment to death and a fine ranging from twenty thousand to thirty thousand pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions. If the victim of the offense is a minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty herein provided shall be imposed."

Nonetheless, there is substantial evidence to prove that Bocalan was directly involved in the unlawful dispatch in transit or transport of marijuana. The evidence of the prosecution, particularly the testimonies of Pfc. Ricardo Galang and Pat. Rosauro de Guzman, belies the defense of Bocalan and establishes beyond cavil that he was caught in flagrante delicto of transporting the prohibited drug; that he was the driver of the jeep owned by his father that carried the stuff; and, that he was in fact the owner of the bag. The trial court noted that Bocalan picked up Fernandez and Exala one after the other to accompany him to the place where the bag of marijuana was taken and to help him bring the marijuana to Cavite City. 12 Regardless of the degree of participation of Fernandez and Exala, Bocalan is correctly punished for his direct involvement in the crime.

Such factual conclusions by the trial court relative to the credibility of witnesses are entitled to great respect and are generally sustained by the appellate court unless some material facts have been overlooked or misconstrued as to affect the result. 13 There is none in this case on appeal.

We turn to the legal question on the admissibility of the marijuana as evidence in the light of Bocalan's contention that it was seized without a valid search warrant. Since the search was conducted prior to the arrest, Bocalan argues that it was not incident to a lawful arrest.

This issue was never raised in the proceedings below. Bocalan never objected to the admissibility of the evidence on the ground that the same was obtained in a warrantless search. Consequently, he is deemed to have waived his objection on the legality of the search and the admissibility of the evidence obtained in the course thereof. 14 In view of such waiver, the court is bound to admit the evidence. 15 But even assuming arguendo that there was no waiver, still appellant's contention deserves scant consideration.

There are indeed instances where search and seizure can be effected without necessarily being preceded by an arrest. 16 An illustration would be the "stop-and-search" without a warrant at military or police checkpoints, the constitutionality of which has already been upheld by this Court. 17 Vehicles are generally allowed to pass through these checkpoints after a routine inspection and answering a few questions. If vehicles are stopped and extensively searched it is because of some probable cause which justifies a reasonable belief of those manning the checkpoints that either the motorist is a law-offender or the contents of the vehicle are or have been instruments in the commission of an offense. 18 However, lest it be misunderstood, this doctrine is not intended to do away with the general rule that no person shall be subjected to search of his person, personal effects and belongings, or his residence except of virtue of a search warrant or on the occasion of a lawful arrest. 19 The case before Us is an incident to or an offshoot of a lawful "stop-and-search" at a military or police checkpoint.

The checkpoint in the instant case was established in line with "Operational Bakal" the main object of which was to search for unlicensed firearms and other prohibited items in the possession of unauthorized persons passing through it. 20 When the jeep carrying the contraband passed through the checkpoint, it was flagged down and the occupants were asked routine questions. In the course thereof, Pfc. Galang noticed a black leather bag the sides of which were bulging. He asked what the contents of the bag were. None of the accused answered. At that moment, the demeanor of the accused changed; they became suspiciously quiet and nervous as if they were concealing something from Pfc. Galang. The accused clearly appeared to be in abject fear of being discovered. Such peculiar apprehensiveness if not restrained reaction of the accused, which did not appear normal, provided the probable cause justifying a more extensive search that led to the opening of the bag and the discovery of the prohibited stuff. Significantly, there was no sign of any protest or objection to the search. The accused remained silent even after their arrest.

Their submissive stance after the discovery of the bag of marijuana, as well as the absence of any protest on their part when arrested, not only casts serious doubts on their professed innocence 21 but also confirms their acquiescence to the search. 22 Clearly then, there was waiver of the right against unreasonable search and seizure. 23 In one case 24 We held

". . . When one voluntarily submits to a search or consents to have it made of his person or premises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th Ed., Vol. I, p. 361). The right to be secure from unreasonable search and seizure may, like every right, be waived and such waiver may be made either expressly or impliedly" (emphasis supplied).

The arrest of the three (3) accused was lawful because it was made upon the discovery of the prohibited drug in their possession. There was no need for a warrant; the arrest was made while a crime was committed. This is one of the situations envisioned by Sec. 5, par. (a), of Rule 113 of the 1985 Rules on Criminal Procedure, as amended, when a warrantless arrest may be made. 25 The accused were caught in the act of dispatching in transit or transporting marijuana, in violation of Sec. 4, Art. II, of R.A. 6425, as amended.

The alleged contradiction between the sworn statements of Pfc. Galang and Pat. de Guzman was explained in their separate testimonies and, in any event, has been resolved by the trial court as a factual issue. We find no reason to reverse its findings.

Anent the argument that the three (3) accused should not have been assigned different levels of liability, suffice it to say that whether a principal, co-principal or conspirator, accused-appellant would have been meted out the same penalty imposed by the trial court.

WHEREFORE, there being no reversible error in the decision appealed from finding accused-appellant RESTITUTO B. BOCALAN guilty beyond reasonable doubt of the crime charged, the same is AFFIRMED, with costs against him.

SO ORDERED.

Grio-Aquino and Quiason, JJ ., concur.

Separate Opinions

CRUZ, J., dissenting:

I dissent, for the reasons expressed in my dissenting opinions in Valmonte v. de Villa, 185 SCRA 665/178 SCRA 211, and People v. Malmstedt, 198 SCRA 401, and the following additional observations.

I am opposed to checkpoints as regular police measures aimed at reducing criminality in general. I do not agree that in the interest of peace and order, any or every vehicle may be stopped at any time by the authorities and searched without warrant on the chance that it may be carrying prohibited articles. That possibility is not the probable cause envisioned in the Bill of Rights.

In the case of the ordinary checkpoint, there is not even any suspicion to justify the search. The search is made as a matter of course, either of all vehicles or at random. There is no showing that a crime is about to be committed, is actually being committed, or has just been committed and the searching officer has personal knowledge that the person being searched or arrested is the culprit.

I will concede that checkpoints may be established at borders of states or at "constructive borders" near the boundary for the purpose of preventing violations of immigration and customs laws. But in the interior of the territory, the requirements of a valid search and seizure must be strictly observed. The only permissible exemption is where a crime like a bank robbery has just been committed or a jailbreak has just occurred, and the authorities have to seal off all possible avenues of escape in the area. In all other cases, I submit that the checkpoint should not be allowed.

I realize that this view would result in the inadmissibility of the of the seized marijuana as evidence against the petitioner and in his inevitable acquittal. But as I have always maintained, we cannot retroactively validate an illegal search on the justification that, after all, the articles seized are illegal. That is putting the cart before the horse. I would rather see some criminals go unpunished now and then than agree to the Bill of Rights being systematically ignored in the oppressive checkpoint. Respect for the Constitution is more important than securing a conviction based on a violation of the rights of the accused.

GUANZON v. DE VILLAG.R. No. 8050830 January 1990

PONENTE:Gutierrez, Jr., J.

PARTIES:1. PETITIONERS:EDDIE GUAZON, JOSEFINA CABRERA, YOLANDA DACUNES, VIOLETA SEVILLA, QUERUBIN BILLONES, ESTELITA BILLONES, GORGONIA MACARAEG, LAUREANA JOAQUIN, CRESTITA LICUP, SOLIDAD ABURDO, ROSALINA VILLARDA, CONRADA HOBALANE, ERLINDA RESTORAN, VERIDIAN FLORA, ROSELA CONDE, SOSIMA COSTO, JOSEFINA ALDIANO, ROSALINA DOMINGO, ARESTIO YANGA, MILAGROS GONZALES, ESTRELITA ESTARES, BONIFACIA ANTIVO, PATRIA VALLES, ERLINDA LEE, MELANIO GAROFIL, ERIBERTO MATEO, FRANCISCO HORTILLANO, ANATALIA PESIMO, LOSENDO GARBO, VIRGINIA LORESTO, LYDIA ELA, RAFAEL VILLABRILLE, MA. RECHILDA SABALZA, EDITHA MAAMO, ELENIETA BANOSA, ALEXANDER LABADO, ANDREW GO, WYNEFREDO REYES, ROSARIO SESPENE, ROSA MARTIN and JAIME BONGAT

2. RESPONDENTS:MAJ. GEN. RENATO DE VILLA, BRIG. GEN. ALEXANDER AGUIRRE, BRIG. GEN. RAMON MONTANO, BRIG. GEN. ALFREDO LIM, and COL. JESUS GARCIANATURE:Petition for Prohibition with Preliminary InjunctionPROCEDURAL BACKGROUND:Supreme Court:Original Petition for Prohibition with Preliminary Injunction

FACTS:

The forty one (41) petitioners, claiming to represent the citizens of Metro Manila who have similar interests and are so numerous that it is impracticable to bring them all before th[e] Court, filed a petition for prohibition with preliminary injunction to prohibit the military and police officers from conducting Aerial Target Zonings or Saturation Drives in Metro Manila. In their petition, they claim that the saturation drive or aerial target zoning that were conducted in Tondo, Manila were unconstitutional. To support such claim, they specifically alleged that there is no specific target house to be search and that there is no search warrant or warrant of arrest served. Most of the policemen are in their civilian clothes and without nameplates or identification cards. The residents were rudely roused from their sleep by banging on the walls and windows of their houses. The residents were at the point of high-powered guns and herded like cows. Men were ordered to strip down to their briefs for the police to examine their tattoo marks. The petitioners claim that in all these drives, the following acts were committed:

1. Having no specific target house in mind, in the dead of the night or early morning hours, police and military units without any search warrant or warrant of arrest cordon an area of more than one residence and sometimes whole barangay or areas of barangay in Metro Manila. Most of them are in civilian clothes and without nameplates or identification cards.

2. These raiders rudely rouse residents from their sleep by banging on the walls and windows of their homes, shouting, kicking their doors open (destroying some in the process), and then ordering the residents within to come out of their respective residences.

3. The residents at the point of high-powered guns are herded like cows, the men are ordered to strip down to their briefs and examined for tattoo marks and other imagined marks.

4. While the examination of the bodies of the men are being conducted by the raiders, some of the members of the raiding team force their way into each and every house within the cordoned off area and then proceed to conduct search of the said houses without civilian witnesses from the neighborhood.

5. In many instances, many residents have complained that the raiders ransack their homes, tossing about the residents belongings without total regard for their value. In several instances, walls are destroyed, ceilings are damaged in the raiders illegal effort to fish for incriminating evidence.

6. Some victims of these illegal operations have complained with increasing frequency that their money and valuables have disappeared after the said operations.

7. All men and some women who respond to these illegal and unwelcome intrusions are arrested on the spot and hauled off to waiting vehicles that take them to detention centers where they are interrogated and verified. These arrests are all conducted without any warrants of arrest duly issued by a judge, nor under the conditions that will authorize warrantless arrest. Some hooded men are used to fingerpoint suspected subversives.

8. In some instances, arrested persons are released after the expiration of the period wherein they can be legally detained without any charge at all. In other instances, some arrested persons are released without charge after a few days of arbitrary detention.

9. The raiders almost always brandish their weapons and point them at the residents during these illegal operations.

10. Many have also reported incidents of on-the-spot beatings, maulings and maltreatment.

11. Those who are detained for further verification by the raiders are subjected to mental and physical torture to extract confessions and tactical information. (Rollo, pp. 2 -4)

In their defense, the respondents, represented by the Solicitor General, alleged that the accusations of the petitioners were total lies. Respondents contend that the Constitution grants to government the power to seek and cripple subversive movements for the maintenance of peace in the state. The aerial target zoning were intended to flush out subversives and criminal elements coddled by the communities were the said drives were conducted. They said that they have intelligently and carefully planned months ahead for the actual operation and that local and foreign media joined the operation to witness and record such event.

PERTINENT ISSUES:1. Whether or not the saturation drives performed by respondents involved acts which violated human rights.

2. Whether or not the original action for prohibition is the proper remedy.ANSWER:1. Yes.

2. No.

SUPREME COURT RULINGS:

1. ON SATURATION DRIVES AND VIOLATION OF HUMAN RIGHTSWhen saturation drives may be conducted without having to secure search warrants and without violating the Bill of Rights Where there is large scale mutiny or actual rebellion, the police or military may go out in force to the combat areas, enter affected residences or buildings, round up suspected rebels and otherwise quell the mutiny or rebellion without having to secure search warrants and without violating the Bill of Rights.

Duty of the court to stop the transgression and encroachment upon the rights of the individual Where a violation of human rights specifically guaranteed by the Constitution is involved, it is the duty of the court to stop the transgression and state where even the awesome power of the state may not encroach upon the rights of the individual. It is the duty of the court to take remedial action even in cases such as the present petition where the petitioners do not complain they were victims of the police actions, where no names of any of the thousands of alleged victims are given, and where the prayer is a general one to stop all police saturation drives, as long as the Court is convinced that the event actually happened.

The Court believes it highly probable that some violations were actually committed. This is so inspite of the alleged pleas of barangay officials for the thousands of residents to submit themselves voluntarily for character and personal verification. We cannot imagine police actions of the magnitude described in the petitions and admitted by the respondents, being undertaken without some undisciplined soldiers and policemen committing certain abuses. However, the remedy is not to stop all police actions, including the essential and legitimate ones. We see nothing wrong in police making their presence visibly felt in troubled areas. Police cannot respond to riots or violent demonstrations if they do not move in sufficient numbers. A show of force is sometimes necessary as long as the rights of people are protected and not violated. A blanket prohibition such as that sought by the petitioners would limit all police actions to one-on-one confrontations where search warrants and warrants of arrests against specific individuals are easily procured. Anarchy may reign if the military and the police decide to sit down in their offices because all concerted drives where a show of force is present are totally prohibited.

2. ON VIOLATION OF HUMAN RIGHTS AND REMEDYThe present petition is an improper remedy The remedy is not an original action for prohibition brought through a taxpayers suit. Where not one victim complains and not one violator is properly charged, the problem is not initially for the Supreme Court. It is basically one for the executive departments and for trial courts. Well-meaning citizens with only second-hand knowledge of the events cannot keep on indiscriminately tossing problems of the executive, the military, and the police to the Supreme Court as if we are the repository of all remedies for all evils. The rules of constitutional litigation have been evolved for an orderly procedure in the vindication of rights. They should be followed. If our policy-makers sustain the contention of the military and the police that occasional saturation drives are essential to maintain the stability of government and to insure peace and order, clear policy guidelines on the behavior of soldiers and policemen must not only be evolved, they should also be enforced. A method of pinpointing human rights abuses and identifying violators is necessary.

The problem is appropriate for the Commission on Human Rights. A high level conference should bring together the heads of the Department of Justice, Department of National Defense and the operating heads of affected agencies and institutions to devise procedures for the prevention of abuses.

No permanent relief can be given Under the circumstances of this taxpayers suit, there is no erring soldier or policeman whom we can order prosecuted. In the absence of clear facts ascertained through an orderly procedure, no permanent relief can be given at this time. Further investigation of the petitioners charges and a hard look by administration officials at the policy implications of the prayed for blanket prohibition are also warranted.

In the meantime and in the face of a prima facie showing that some abuses were probably committed and could be committed during future police actions, we have to temporarily restrain the alleged banging on walls, the kicking in of doors, the herding of half-naked men to assembly areas for examination of tattoo marks, the violation of residences even if these are humble shanties of squatters, and the other alleged acts which are shocking to the conscience.

DISPOSITIVE:The Supreme Court remanded the petition to the Regional Trial Courts of Manila, Malabon, and Pasay City where the petitioners may present evidence supporting their allegations and where specific erring parties may be pinpointed and prosecuted.

The Supreme Court likewise forwarded to the Commission on Human Rights, the Secretary of Justice, the Secretary of National Defense, and the Commanding General of the Philippine Constabulary Integrated National Police for the drawing up and enforcement of clear guidelines to govern police actions intended to abate riots and civil disturbances, flush out criminal elements, and subdue terrorist activities.

In the meantime, the Supreme Court enjoined the acts violative of human rights alleged by petitioners as committed during the police actions until such time as permanent rules to govern such rules are promulgated.Alvero vs Dizon CaseDigestAURELIO S. ALVERO vs ARSENIO P. DIZON, et al.,

G.R. No. L-342 May 4, 1946

FACTS:

The petitioner has been accused of treason; that at the hearing on his petition for bail, the prosecution presented, as part of its evidence, certain documents which had been allegedly seized by soldiers of the United States Army, accompanied by Filipino Guerrillas in the petitioners house. The Petitioner further contends that the seized documents should be returned as it obtained by means of force and intimidation or through coercion, those are not his personal papers but part of the files of the New Leaders Association, which was proven to be an organization created for the purpose of collaborating with the enemy. Lastly, the presentation of the seized documents in the trial is tantamount to compelling him to testify against himself, in violation of his constitutional rights.

ISSUES:Whether or not the seized documents are legal?

Whether or not the documents seized should be admitted as evidence in the trial court?

HELD.No. The petition for Certiorari with Injunction is absolutely no merit.

RATIONALE:The right of the officer and men of the United States Army to arrest the petitioner as a collaborationist suspect, and to seize his personal papers is unquestionable. Also, proclamation of General Douglas McArthur, as Commander in Chief of the United States of Army, declaring his purpose to remove certain citizens of the Philippines, who had voluntarily given aid and comfort to the enemy, in violation of the allegiance.

EXCEPTION:Important exception to the necessity for a Search Warrant is the right of search and seizure as an incident to a lawful arrest. A lawful arrest may be made either while a crime is being committed or after its commission. The right to search includes in both instances that of searching the person of him who is arrested, in order to find and seize things arrested with the crime as its fruits as the means by which it was committed.

The Petitioner consented to the presentation of the seized documents, as part of the evidence for the prosecution, at the hearing in his petition for bail and at the trial of the case on the merits, without having insisted that the question of the alleged illegality of the search and seizure of said papers and documents should first have been directly litigated and established by a motion.

COMPULSORY SELF-INCRIMINATIONNot violated by the use of evidence of articles obtained by an unconstitutional search and seizure. Thus, the petitioner is estopped from questioning their admission.

PURPOSE: (Adam vs New York)The purpose of the constitutional provisions against unlawful searched and seizures is to prevent violations of private security in person and property, and unlawful invasions of the sanctity of the home, by officers of the law acting under legislative and judicial sanction, and to give remedy against such usurpations when attempted. G.R. No. L-342 May 4, 1946

AURELIO S. ALVERO,petitioner,vs.ARSENIO P. DIZON, ET AL.,respondent.

Albert and Albert for petitioner.First Assistant Solicitor General Reyes and Assistant Solicitor General Alvendia for respondents.DE JOYA,J.:This is a petition forcertiorariwith injunction originally filed in this court.

In the petition it is alleged that petitioner Aurelio S. Alvero has been accused of treason, in criminal case No. 3 of the People's Court; that at the hearing on his petition for bail, the prosecution presented, as part of its evidence, certain documents which had been allegedly seized by soldiers of the United States Army, accompanied by Filipino guerrillas, in the petitioner's house; that petitioner immediately objected to the presentation of said documents, and called the attention of the respondent judges to the fact that he had filed a petition, in which he protested against the procedure of the government in the seizure of said documents, and asked for their return to the petitioner; that the respondents permitted the prosecution to present said documents as evidence, which were considered, upon the termination of the presentation of the evidence for both parties, in denying said petition for bail; that the petition filed on December 1, 1945, for the return of the documents allegedly seized illegally in petitioner's house, was not considered by the respondents, before the commencement of the trial of petitioner's case, on the merits, due perhaps to an involuntary oversight; that at the commencement of the trial of said criminal case No. 3, and during its course, the prosecution again presented, as evidence, against the petitioner said documents which had been taken from his house, and petitioner renewed his objection thereto, and asked for their return to him, alleging that their seizure was illegal and that their presentation would be tantamount to compelling him to testify against himself, in violation of his constitutional rights; that in deciding the question so raised, the respondent judges, in open court, stated that the prosecution might in the meanwhile continue presenting said documents, without prejudice to the final resolution of said petition, when the prosecution should finish presenting its evidence; that in concluding the presentation of its evidence and resting the case, after offering said documents as part of its evidence, the petitioner again raised the question of the admissibility of said documents, and the respondent judges then ordered the substantiation of said allegations of petitioner, and set for hearing his petition for the return of said documents; that said petition was heard on February 16, 1946, and at said hearing, the petitioner and his wife testified, without any contradiction that, on February 12, 1945, on the occasion of the arrest of the petitioner by soldiers of the United States Army, the latter searched the house of the petitioner and seized, among other things, the documents which he had in his house; that when said petition for the return of said documents was submitted for the consideration and decision of the respondent judges, the latter, on February 26, 1946, issued an order denying said petition, and admitted as competent evidence the documents presented by the prosecution, marked as Exhibits A, C, G, H, K, L, P, R, R-1, R-2, U, Z, CC, DD, FF, HH; that on the same date that said order was issued, denying the petition for the return of said documents, petitioner asked for the reconsideration of said order, which was also denied. (Petition, pars. 1-12.)

And herein petitioner now claims that the respondent judges, in denying the petition for the return of said documents, acted without jurisdiction and committed a grave abuse in the exercise of their discretion, alleging that even the seizure of documents by means of a search warrant legally issued, constitutes a violation of the rights guaranteed in paragraphs 3 and 18 of section 1 of Article III of the Constitution, and, consequently, when their seizure cannot be justified by the corresponding search warrant, the court should order their immediate return; that the petitioner has no other speedy and adequate remedy for the protection of his rights guaranteed by the Constitution, other than this petition forcertiorari, as the right of appeal granted by law to a person accused of a crime, is costly and highly prejudicial to the petitioner, as it presupposes that the prosecution has established the guilt of the accused by means of legal and competent evidence, as alleged in the last three (3) paragraphs of the petition.

Consequently, herein petitioner asks for the annulment of the order issued by the respondent judges, on February 26, 1946, in said criminal case No. 3, entitled People of the Philippines vs. Aurelio S. Alvero, the return to him of the documents presented by the prosecution, mentioned above, and the issuance of a writ of preliminary injunction. .In their answer filed on March 21, 1946, herein respondents have substantially admitted the allegations made and contained in the first twelve (12) paragraphs of the petition, except the portions alleging that the documents in question had been obtained by means of force and intimidation or through coercion; and that certain soldiers of the American Army took certain personal properties of herein petitioner, at the time the search was made; and that the acquisition of said documents was manifestly a violation of petitioner's constitutional rights and that their admission, as evidence for the prosecution, would be tantamount to compelling petitioner, as accused, to testify against himself all of which portions have been expressly denied by the respondents.

Respondents have also expressly denied the allegations contained in the remaining three (3) paragraphs of the petition.

And as defenses, respondents allege (1) that petitioner himself has admitted the legality of the seizure of the documents in question in his motion for reconsideration, dated February 26, 1946; (2) that petitioner has not proven that said documents had been illegally seized for him; (3) that the seizure of the documents in question took place, on February 12, 1945, in Pasay, Rizal, which was then still a combat zone, and that the seizure of certain papers in the house of the petitioner was made by soldiers of the United States Army of Liberation or its instrumentalities; (4) that said seizure was effected lawfully under the terms of the proclamation of the Commander in Chief of the United States Liberation Forces, dated December 29, 1944, in which he declared his purpose to remove alleged collaborators, when apprehended, from any position of political and economic influence in the Philippines and to hold them in restraint for the duration of the war; (5) that the documents in question had been properly admitted as evidence for the prosecution in criminal case No. 3, as herein petitioner, as accused in said case, had expressly waived his right to object to their admissibility, particularly Exhibits A, FF, HH and P; (6) that petitioner's evidence of alleged ownership, relative to Exhibits C, G, H, K, I, P, R, R-1 and R-2, is altogether insufficient, and petitioner himself has expressly admitted that said documents are not his personal papers but part of the files of the New Leaders' Association, which was proven to be an organization created, for the purpose of collaborating with the enemy; (7) and that none of the exhibits referred to in the petition has been satisfactorily identified by the petitioner as included among the papers allegedly wrongfully seized from his house and belonging to him.

Considering the allegations made by the parties in their respective pleadings, and their supporting papers, as well as the admissions made therein, the following facts appear to have been sufficiently established:

(1) That on February 12, 1945, while the battle for Manila was raging, soldiers of the United States Army, accompanied by men of Filipino Guerrilla Forces, placed herein petitioner under arrest, having been suspected of collaboration with the enemy, and seized and took certain papers from his house in Pasay, Rizal;

(2) That on or about October 4, 1945, petitioner was accused of treason, in criminal case No. 3 of the People's Court; after which, on December 1, 1945, he filed a petition, demanding the return of the papers allegedly seized and taken from his house;

(3) That petitioner also filed a petition for bail, at the hearing of which the prosecution presented certain papers and documents, which were admitted as part of its evidence, and said petition was denied;

(4) That at the trial of the case on the merits, the prosecution again presented said papers and documents, which were admitted as part of its evidence, and were marked as exhibits, as described in the petition forcertiorari, filed in this court;

(5) That herein petitioner had failed to object properly to the admission of said papers and documents at the hearing on said petition for bail, and at the trial of the case on the merits, in not having insisted that the question of the legality of the search and seizure of the papers and documents taken from his house should have been litigated and finally decided first, and thus practically waived his objection to their admissibility, as evidence for the prosecution;

(6) That at the hearing on his petition for the return of the papers taken from his house, held after they had been admitted as part of the evidence for the prosecution, at the hearing on the petition for bail and at the trial of the case on the merits, herein petitioner had failed to identify satisfactorily the documents now in question, and his ownership thereof; and

(7) That petitioner himself in his petition for reconsideration, dated February 26, 1946, admitted the legality the legality of the seizure of the documents taken from his house, and at the hearing on his petition for bail, he himself called for some of the documents in question.

The right of officers and men of the United States Army to arrest herein petitioner, as a collaborationist suspect, and to seize his personal papers, without any search warrant, in the zone of military operations, is unquestionable, under the provisions of article 4, Chapter II, Section I, of the Regulations relative to the Laws and Customs of War on Land of the Hague Conventions of 1907, authorizing the seizure of military papers in the possession of prisoners of war (Wilson, International Law, 3d ed., 1939, p.524); and also under the proclamation, dated December 29, 1944, issued by Gen. Douglas MacArthur, as Commander in Chief of the United States of Army, declaring his purpose to remove certain citizens of the Philippines, who had voluntarily given aid and comfort to the enemy, in violation of the allegiance due the Governments of the United States and the Commonwealth of the Philippines, when apprehended, from any position of political and economic influence in the Philippines and to hold them in restraint for the duration of the war. (41 Off. Gaz., No. 2, pp. 148, 149.) As a matter of fact, petitioner himself, in his motion for reconsideration, dated February 26, 1946, expressly admitted the legality of the seizure of his personal papers and documents at the time of his arrest.

The most important exception to the necessity for a search warrant is the right of search and seizure as an incident to a lawful arrest. A lawful arrest may be made either while a crime is being committed or after its commission. The right to search includes in both instances that of searching the person of him who is arrested, in order to find and seize things connected with the crime as its fruits or as the means by which it was committed. (Agnello vs. United States, 269 U. S., 20.)

When one is legally arrested for an offense, whatever is found in his possession or in his control may be seized and used in evidence against him; and an officer has the right to make an arrest without a warrant of a person believed by the officer upon reasonable grounds to have committed a felony. (Carroll vs. United States, 267 U. S., 132.).

The majority of the states have held that the privilege against compulsory self-incrimination, which is also guaranteed by state constitutional provisions is not violated by the use in evidence of articles obtained by an unconstitutional search and seizure. (People vs. Defore, 242 N. Y., 13; 150 N. E., 585.)

It is true that on December 1, 1945, herein petitioner filed a petition, demanding the return of certain papers and documents allegedly seized and taken from his house at the time of his arrest; but when he consented to their presentation, as part of the evidence for the prosecution, at the hearing on his petition for bail and at the trial of the case on the merits, without having insisted that the question of the alleged illegality of the search and seizure of said papers and documents should first have been directly litigated and established by a motion, made before the trial, for their return, he was and should be deemed to have waived his objection to their admissibility as part of the evidence for the prosecution; since the privilege against compulsory self-incrimination may be waived. (Weeks vs. United States, 232 U. S., 383; Silverthorne Lumber Co. vs. United States, 251 U. S., 385; Gouled vs. United States, 255 U. S., 298; People vs. Carlos, 47 Phil., 626, 630, 631.)

At the hearing on his petition for bail, petitioner himself requested the production of the document marked as Exhibit A, which was a letter sent by him to Dr. Jose P. Laurel; the document marked as Exhibit HH, which was a memorandum to Col. Suzuki, dated December 30, 1944; and the document marked as Exhibit P, which was a memorandum on Nippongo classes. And he is now, therefore, estopped from questioning their admission.

Furthermore, petitioner could not properly identify many of said documents, such as Exhibit FF, nor satisfactorily establish his ownership thereof; while the prosecution has sufficiently established the fact that some of the papers now in question, such as Exhibit C, had been received at the Office of the CIC of the United States Army in the City of Manila, since February 11, 1945, that is, one day prior to the seizure of certain papers and documents in the house of the petitioner. And with reference to Exhibits C, G, H, K, L, P, R, R-1 and R-2, petitioner himself admitted that they are not his personal papers but part of the files of the New Leader's Association. And it is well established rule in this jurisdiction that in a petition for the production of papers and documents, they must be sufficiently described and identified, otherwise the petition cannot prosper. (Liebenow vs. Philippine Vegetable Oil Co., 39 Phil., 60, 67, 69; Rule 21, section 1, Rules of Court.)

The purpose of the constitutional provisions against unlawful searches and seizures is to prevent violations of private security in person and property, and unlawful invasions of the sanctity of the home, by officers of the law acting under legislative or judicial sanction, and to give remedy against such usurpations when attempted. (Adams vs. New York, 192 U. S., 585.) But it does not prohibit the Federal Government from taking advantage of unlawful searches made by a private person or under authority of state law. (Weeks vs. United States, 232 U. S., 383; Burdeau vs. McDowell, 256 U. S., 465.)

As the soldiers of the United States Army, that took and seized certain papers and documents from the residence of herein petitioner, on February 12, 1945, were not acting as agents or on behalf of the Government of the Commonwealth of the Philippines; and that those papers and documents came in the possession of the authorities of the Commonwealth Government, through the Office of the CIC of the United States Army in Manila, the use and presentation of said papers and documents, as evidence for the prosecution against herein petitioner, at the trial of his case for treason, before the People's Court, cannot now be legally attacked, on the ground of unlawful or unreasonable searches and seizures, or on any other constitutional ground, as declared by the Supreme Court of the United States in similar cases. (Burdeau vs. McDowell, 256 U. S., 465; Gambino vs. United States, 275 U. S., 310.)

In view of the foregoing, it is evident that the petition forcertiorariwith injunction, filed in this case, is absolutely without merit, and it is, therefore, hereby denied and dismissed with costs. So ordered.

Jaranilla, Feria, Pablo, and Hilado, JJ., and Buenaventura, Santos, Santiago and T. Santos, JJ., concur.Separate OpinionsPERFECTO,J.,concurring:

We concur in the decision, but we wish to make of record our express disagreement with the doctrine as stated in the following paragraphs of said decision:

The majority of the states have held that the privilege against compulsory self-incrimination, which is also guaranteed by state constitutional provisions is not violated by the use in evidence of articles obtained by an unconstitutional search and seizure. (People vs. Defore, 242 N. Y., 13; 150 N. E., 585.).

But it does not prohibit the Federal Government from taking advantage of unlawful searches made by a private person or under authority of state law. (Weeks vs. United States, 232 U. S., 383; Burdeau vs. McDowell, 256 U. S., 465.)

We also disagree with the following pronouncement in the other concurring opinion:.

La traicion implica renuncia y privacion de la garantia contra irrazonables registros y secuestros, diligencias previas a la conviccion o absolucion, actuaciones estas finales del proceso.

The theory is erroneous and retrogressive. It violates the spirit and the letter of the Constitution. There is no reason, either legal or moral, for depriving an accused of treason of the benefits of constitutional guarantees. Even those convicted of the most heinous crimes remain under the pale of the Constitution, and cannot be punished, including those sentenced to death, except in accordance with the due process clause of our fundamental law.

G.R. No. 81561 January 18, 1991

PEOPLE OF THE PHILIPPINES,plaintiff-appelleevs.ANDRE MARTI,accused-appellant.

The Solicitor General for plaintiff-appellee.

Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.

BIDIN,J.:pThis is an appeal from a decision*rendered by the Special Criminal Court of Manila (Regional Trial Court, Branch XLIX) convicting accused-appellant of violation of Section 21 (b), Article IV in relation to Section 4, Article 11 and Section 2 (e) (i), Article 1 of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act.

The facts as summarized in the brief of the prosecution are as follows:

On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law wife, Shirley Reyes, went to the booth of the "Manila Packing and Export Forwarders" in the Pistang Pilipino Complex, Ermita, Manila, carrying with them four (4) gift wrapped packages. Anita Reyes (the proprietress and no relation to Shirley Reyes) attended to them. The appellant informed Anita Reyes that he was sending the packages to a friend in Zurich, Switzerland. Appellant filled up the contract necessary for the transaction, writing therein his name, passport number, the date of shipment and the name and address of the consignee, namely, "WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)

Anita Reyes then asked the appellant if she could examine and inspect the packages. Appellant, however, refused, assuring her that the packages simply contained books, cigars, and gloves and were gifts to his friend in Zurich. In view of appellant's representation, Anita Reyes no longer insisted on inspecting the packages. The four (4) packages were then placed inside a brown corrugated box one by two feet in size (1' x 2'). Styro-foam was placed at the bottom and on top of the packages before the box was sealed with masking tape, thus making the box ready for shipment (Decision, p. 8).

Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts,Mr.Job Reyes (proprietor) and husband of Anita (Reyes), following standard operating procedure, opened the boxes for final inspection.When he opened appellant's box, a peculiar odor emitted therefrom.His curiousity aroused, he squeezed one of the bundles allegedly containing gloves and felt dried leaves inside.Opening one of the bundles, he pulled out a cellophane wrapper protruding from the opening of one of the gloves.He made an opening on one of the cellophane wrappers and took several grams of the contents thereof(tsn, pp. 29-30, October 6, 1987; Emphasis supplied).

Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a laboratory examination of the samples he extracted from the cellophane wrapper (tsn, pp. 5-6, October 6, 1987).

He brought the letter and a sample of appellant's shipment to the Narcotics Section of the National Bureau of Investigation (NBI), at about 1:30 o'clock in the afternoon of that date,i.e., August 14, 1987. He was interviewed by the Chief of Narcotics Section. Job Reyes informed the NBI that the rest of the shipment was still in his office. Therefore, Job Reyes and three (3) NBI agents, and a photographer, went to the Reyes' office at Ermita, Manila (tsn, p. 30, October 6, 1987).

Job Reyes brought out the box in which appellant's packages were placed and, in the presence of the NBI agents, opened the top flaps, removed the styro-foam and took out the cellophane wrappers from inside the gloves.Dried marijuana leaves were found to have been contained inside the cellophane wrappers (tsn, p. 38, October 6, 1987; Emphasis supplied).

The package which allegedly contained books was likewise opened by Job Reyes. He discovered that the package contained bricks or cake-like dried marijuana leaves. The package which allegedly contained tabacalera cigars was also opened. It turned out that dried marijuana leaves were neatly stocked underneath the cigars (tsn, p. 39, October 6, 1987).

The NBI agents made an inventory and took charge of the box and of the contents thereof, after signing a "Receipt" acknowledgingcustodyof the said effects (tsn, pp. 2-3, October 7, 1987).

Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in his passport being the Manila Central Post Office, the agents requested assistance from the latter's Chief Security. On August 27, 1987, appellant, while claiming his mail at the Central Post Office, was invited by the NBI to shed light on the attempted shipment of the seized dried leaves. On the same day the Narcotics Section of the NBI submitted the dried leaves to the Forensic Chemistry Section for laboratory examination. It turned out that the dried leaves were marijuana flowering tops as certified by the forensic chemist. (Appellee's Brief, pp. 9-11,Rollo, pp. 132-134).

Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known as the Dangerous Drugs Act.After trial, the courta quorendered the assailed decision.In this appeal, accused/appellant assigns the following errors, to wit:

THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY SEARCHED AND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS.

THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE UNDISPUTED FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE UNDER CUSTODIAL PROCEEDINGS WERE NOT OBSERVED.

THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION OF THE APPELLANT ON HOW THE FOUR PARCELS CAME INTO HIS POSSESSION (Appellant's Brief, p. 1;Rollo, p. 55)

1. Appellant contends that the evidence subject of the imputed offense had been obtained in violation of his constitutional rights against unreasonable search and seizure and privacy of communication (Sec. 2 and 3, Art. III, Constitution) and therefore argues that the same should be held inadmissible in evidence (Sec. 3 (2), Art. III).

Sections 2 and 3, Article III of the Constitution provide:

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

Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

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

Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in the 1935 Charter which, worded as follows:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but uponprobablecause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. (Sec. 1 [3], Article III)

was in turn derived almost verbatim from the Fourth Amendment**to the United States Constitution. As such, the Court may turn to the pronouncements of the United States Federal Supreme Court and State Appellate Courts which are considered doctrinal in this jurisdiction.

Thus, following the exclusionary rule laid down inMapp v.Ohio by the US Federal Supreme Court(367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, inStonehill v.Diokno(20 SCRA 383 [1967]), declared as inadmissible any evidence obtained by virtue of a defective search and seizure warrant, abandoning in the process the ruling earlier adopted inMoncado v.People's Court(80 Phil. 1 [1948]) wherein the admissibility of evidence was not affected by the illegality of its seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized theStonehillruling and is carried over up to the present with the advent of the 1987 Constitution.

In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the admissibility of evidence obtained in violation of the constitutional safeguard against unreasonable searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA 687 [1987];See alsoSalazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990).

It must be noted, however, that in all those cases adverted to, the evidence so obtained were invariably procured by the State acting through the medium of its law enforcers or other authorized government agencies.

On the other hand, the case at bar assumes a peculiar character since the evidence sought to be excluded was primarily discovered and obtained by a private person, acting in a private capacity and without the intervention and participation of State authorities. Under the circumstances, can accused/appellant validly claim that his constitutional right against unreasonable searches and seizure has been violated? Stated otherwise, may an act of a private individual, allegedly in violation of appellant's constitutional rights, be invoked against the State?

We hold in the negative. In the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked against the State.

As this Court held inVillanueva v.Querubin(48 SCRA 345 [1972]:

1. This constitutional right(against unreasonable search and seizure)refers to the immunity of one's person, whether citizen or alien, from interference by government, included in which is his residence, his papers, and other possessions. . . .

. . . There the state, however powerful, does not as such have the access except under the circumstances above noted, for in the traditional formulation, his house, however humble, is his castle.Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life. . . . (Cf. Schermerber v. California, 384 US 757 [1966] and Boyd v. United States, 116 US 616 [1886]; Emphasis supplied).

InBurdeau v.McDowell(256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in construing the right against unreasonable searches and seizures declared that:

(t)he Fourth Amendment gives protection against unlawful searches and seizures, and as shown in previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies; as against such authority it was the purpose of the Fourth Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the possession of his property, subject to the right of seizure by process duly served.

The above ruling was reiterated inState v.Bryan(457 P.2d 661 [1968]) where a parking attendant who searched the automobile to ascertain the owner thereof found marijuana instead, without the knowledge and participation of police authorities, was declared admissible in prosecution for illegal possession of narcotics.

And again in the 1969 case ofWalker v.State(429 S.W.2d 121), it was held that the search and seizure clauses are restraints upon the government and its agents, not upon private individuals (citingPeople v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957).

Likewise appropos is the case ofBernas v.US(373 F.2d 517 (1967). The Court there said:

The search of which appellant complains, however, was made by a private citizen the owner of a motel in which appellant stayed overnight and in which he left behind a travel case containing the evidence***complained of. The search was made on the motel owner's own initiative. Because of it, he became suspicious, called the local police, informed them of the bag's contents, and made it available to the authorities.

The fourth amendment and the case law applying it do not require exclusion of evidence obtained through a search by a private citizen. Rather, the amendment only proscribes governmental action."

The contraband in the case at bar having come into possession of the Government without the latter transgressing appellant's rights against unreasonable search and seizure, the Court sees no cogent reason why the same should not be admitted against him in the prosecution of the offense charged.

Appellant, however, would like this court to believe that NBI agents made an illegal search and seizure of the evidence later on used in prosecuting the case which resulted in his conviction.

The postulate advanced by accused/appellant needs to be clarified in two days. In both instances, the argument stands to fall on its own weight, or the lack of it.

First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents conducted an illegal search and seizure of the prohibited merchandise. Records of the case clearly indicate that it was Mr. Job Reyes, the proprietor of the forwarding agency, who made search/inspection of the packages. Said inspection was reasonable and a standard operating procedure on the part of Mr. Reyes as a precautionary measure before delivery of packages to the Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original Records, pp. 119-122; 167-168).

It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of the same to the NBI and later summoned the agents to his place of business. Thereafter, he opened the parcel containing the rest of the shipment and entrusted the care and custody thereof to the NBI agents. Clearly, the NBI agents made no search and seizure, much less an illegal one, contrary to the postulate of accused/appellant.

Second, the mere presence of the NBI agents did not convert the reasonable search effected by Reyes into a warrantless search and seizure proscribed by the Constitution. Merely to observe and look at that which is in plain sight is not a search. Having observed that which is open, where no trespass has been committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135). Where the contraband articles are identified without a trespass on the part of the arresting officer, there is not the search that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202 [1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122 [1968]).

InGandy v.Watkins(237 F. Supp. 266 [1964]), it was likewise held that where the property was taken into custody of the police at the specific request of the manager and where the search was initially made by the owner there is no unreasonable search and seizure within the constitutional meaning of the term.

That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private individuals finds support in the deliberations of the Constitutional Commission. True, the liberties guaranteed by the fundamental law of the land must always be subject to protection. But protection against whom? Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the query which he himself posed, as follows:

First, the general reflections. The protection of fundamental liberties in the essence of constitutional democracy. Protection against whom?Protection against the state.The Bill of Rights governs the relationship between the individual and the state.Its concern is not the relation between individuals, between a private individual and other individuals.What the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder. (Sponsorship Speech of Commissioner Bernas , Record of the Constitutional Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied)

The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed.

If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to pass the test of constitutionality. However, if the search is made at the behest or initiative of the proprietor of a private establishment for its own and private purposes, as in the case at bar, and without the intervention of police authorities, the right against unreasonable search and seizure cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government.

Appellant argues, however, that since the provisions of the 1935 Constitution has been modified by the present phraseology found in the 1987 Charter, expressly declaring as inadmissible any evidence obtained in violation of the constitutional prohibition against illegal search and seizure, it matters not whether the evidence was procured by police authorities or private individuals (Appellant's Brief, p. 8,Rollo, p. 62).

The argument is untenable. For one thing, the constitution, in laying down the principles of the government and fundamental liberties of the people, does not govern relationships between individuals. Moreover, it must be emphasized that the modifications introduced in the 1987 Constitution (re: Sec. 2, Art. III) relate to the issuance of either a search warrant or warrant of arrestvis-a-visthe responsibility of the judge in the issuance thereof (SeeSoliven v. Makasiar, 167 SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987]. The modifications introduced deviate in no manner as to whom the restriction or inhibition against unreasonable search and seizure is directed against. The restraint stayed with the State and did not shift to anyone else.

Corolarilly, alleged violations against unreasonable search and seizure may only be invoked against the State by an individual unjustly traduced by the exercise of sovereign authority. To agree with appellant that an act of a private individual in violation of the Bill of Rights should also be construed as an act of the State would result in serious legal complications and an absurd interpretation of the constitution.

Similarly, the admissibility of the evidence procured by an individual effected through private seizure equally applies, inpari passu, to the alleged violation, non-governmental as it is, of appellant's constitutional rights to privacy and communication.

2. In his second assignment of error, appellant contends that the lower court erred in convicting him despite the undisputed fact that his rights under the constitution while under custodial investigation were not observed.

Again, the contention is without merit, We have carefully examined the records of the case and found nothing to indicate, as an "undisputed fact", that appellant was not informed of his constitutional rights or that he gave statements without the assistance of counsel. The law enforcers testified that accused/appellant was informed of his constitutional rights. It is presumed that they have regularly performed their duties (See. 5(m), Rule 131) and their testimonies should be given full faith and credence, there being no evidence to the contrary. What is clear from the records, on the other hand, is that appellant refused to give any written statement while under investigation as testified by Atty. Lastimoso of the NBI, Thus:

Fiscal Formoso:

You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here, did you investigate the accused together with the girl?

WITNESS:

Yes, we have interviewed the accused together with the girl but the accused availed of his constitutional right not to give any written statement, sir. (TSN, October 8, 1987, p. 62; Original Records, p. 240)

The above testimony of the witness for the prosecution was not contradicted by the defense on cross-examination. As borne out by the records, neither was there any proof by the defense that appellant gave uncounselled confession while being investigated.What is more, we haveexamined the assailed judgment of the trial court and nowhere is there any reference made to the testimony of appellant while under custodial investigation which was utilized in the finding of conviction. Appellant's second assignment of error is therefore misplaced.

3. Coming now to appellant's third assignment of error, appellant would like us to believe that he was not the owner of the packages which contained prohibited drugs but rather a certain Michael, a German national, whom appellant met in a pub along Ermita, Manila: that in the course of their 30-minute conversation, Michael requested him to ship the packages and gave him P2,000.00 for the cost of the shipment since the German national was about to leave the country the next day (October 15, 1987, TSN, pp. 2-10).

Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-serving and contrary to human experience. It can easily be fabricated. An acquaintance with a complete stranger struck in half an hour could not have pushed a man to entrust the shipment of four (4) parcels and shell out P2,000.00 for the purpose and for appellant to readily accede to comply with the undertaking without first ascertaining its contents. As stated by the trial court, "(a) person would not simply entrust contraband and of considerable value at that as the marijuana flowering tops, and the cash amount of P2,000.00 to a complete stranger like the Accused. The Accused, on the other hand, would not simply accept such undertaking to take custody of the packages and ship the same from a complete stranger on his mere say-so" (Decision, p. 19,Rollo, p. 91). As to why he readily agreed to do the errand, appellant failed to explain. Denials, if unsubstantiated by clear and convincing evidence, are negative self-serving evidence which deserve no weight in law and cannot be given greater evidentiary weight than the testimony of credible witnesses who testify on affirmative matters (People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237 [1989]).

Appellant's bare denial is even made more suspect considering that, as per records of the Interpol, he was previously convicted of possession of hashish by the Kleve Court in the Federal Republic of Germany on January 1, 1982 and that the consignee of the frustrated shipment, Walter Fierz, also a Swiss national, was likewise convicted for drug abuse and is just about an hour's drive from appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66; Original Records, p. 244; Decision, p. 21;Rollo, p. 93).

Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances (People v. Alto, 26 SCRA 342 [1968],citingDaggers v. Van Dyke, 37 N.J. Eg. 130;see alsoPeople v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123 SCRA 327 [1983]); Castaares v. CA, 92 SCRA 567 [1979]). As records further show, appellant did not even bother to ask Michael's full name, his complete address or passport number. Furthermore, if indeed, the German national was the owner of the merchandise, appellant should have so indicated in the contract of shipment (Exh. "B", Original Records, p. 40). On the contrary, appellant signed the contract as the owner and shipper thereof giving more weight to the presumption that things which a person possesses, or exercises acts of ownership over, are owned by him (Sec. 5 [j], Rule 131). At this point, appellant is therefore estopped to claim otherwise.

Premises considered, we see no error committed by the trial court in rendering the assailed judgment.

WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of the crime charged is hereby AFFIRMED. No costs.

SO ORDERED.PEOPLE OF THE PHILIPPINES vs ANDRE MARTI

G.R. No. 81561 January 18, 1991

FACTS:

August 14, 1957, the appellant and his common-law wife, Sherly Reyes, went to the booth of the Manila Packing and Export Forwarders carrying Four (4) wrapped packages. The appellant informed Anita Reyes that he was sending the packages to a friend in Zurich, Switzerland. Anita Reyes asked if she could examine and inspect the packages. She refused and assures her that the packages simply contained books, cigars, and gloves.

Before the delivery of appellants box to the Bureau of Customs and Bureau of Posts, Mr. Job Reyes (Proprietor), following the standard operating procedure, opened the boxes for final inspection. A peculiar odor emitted from the box and that the gloves contain dried leaves. He prepared a letter and reported to the NBI and requesting a laboratory examinations. The dried marijuana leaves were found to have contained inside the cellophane wrappers.

The accused appellant assigns the following errors: The lower court erred in admitting in evidence the illegalit