criminal additional cases

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FIRST DIVISION

PHILIPPINE DRUG ENFORCEMENT AGENCY

(PDEA),

Petitioner,

-versus-

RICHARD BRODETT AND JORGE JOSEPH,

Respondents.

G.R. No. 196390

Present:

LEONARDO-DE CASTRO,

ActingChairperson,

BERSAMIN,

DEL CASTILLO,

PEREZ,*and

MENDOZA,** J J.

Promulgated:

September 28, 2011

x--------------------------- ------------------------- ------------------------- ------------x

D E C I S I O N

BERSAMIN, J.:

Objects of lawful commerce confiscated in the course of an enforcement of

the Comprehensive Dangerous Drugs Act of 2002 (Republic Act No. 9165)that are the property of a

third person are subject to be returned to the lawful ownerwho is not liable for the unlawful act. But

the trial court may not release such objects pending trial and before judgment.

Antecedents

On April 13, 2009, the State, through the Office of the City Prosecutor of Muntinlupa City,charged

RichardBrodett (Brodett) and Jorge Joseph (Joseph) with a violation of Section 5, in relation to Section

26(b), of Republic Act No. 9165[1]in the Regional Trial Court (RTC) in MuntinlupaCity,docketed as

Criminal Case No. 09-208,the accusatory portion of the information for which reads as follows:

That on or about the 19 th day of September 2 008, in the City of

Muntinlupa, Philippines and within the jurisdiction of this Honorable Court, the

above-named accused, conspiring and confederating together and mutually

helping and aiding each other, they not being authorized by law, did then and

there wilfully, unlawfully, and feloniously sell, trade, deliver and give away toanother, sixty (60) pieces of blue-colored tablets with Motorala ( M ) logos,

contained in six (6) self-sealing transparent plastic sachets with recorded total

net weight of 9.8388 grams, which when subjected to laboratory examination

yielded positive results for presence of METHAMPHETAMINE, a dangerous

drug.[2]

Also on April 16, 2009, the State, also through the Office of the City Prosecutor of Muntinlupa City,

filed another information charging only Brodett with a violation of Section 11 of R.A. No. 9165,

docketed as Criminal Case No. 09-209, with the information alleging:

That on or about the 19th day of September 2008, in the City of

Muntinlupa, Philippines and within the jurisdiction of this Honorable Court, theabove-named accused, not being authorized by law, did then and there, wilfully,

unlawfully, and feloniously have in his possession, custody and control the

following:

a. Four (4) yellow tablets with Playboy logos and ten (10) transparent

capsules containing white powdery substance contained in oneself-sealing transparent plastic sachet having a net weight of

4.9007 grams, which when subjected to laboratory examination

yielded positive results for presence of METHYLENE

DIOXYMETHAMPHETAMINE (MDMA), commonly known as

Ecstasy, a dangerous drug;

b. Five (5) self-sealing t ransparent plastic sachets containing white

powdery substance with total recorded net weight of 1.2235

grams, which when subjected to laboratory examination yielded

positive results for presence of COCCAINE, a dangerous drug;

c. Five (5) self-sealing transparent plastic sachets containing white

powdery substance, placed in a light-yellow folded paper, with

total recorded net weight of 2.7355 grams, which when subjected

to laboratory examination yielded positive results for presence of

COCCAINE, a dangerous drug;

d. Three (3) self-sealing transparent plastic sachets containing dried

leaves with total recorded net weight of 54.5331 grams, which

when subjected to laboratory examination yielded positive results

for presence of TETRAHYDROCANNABINOL, a dangerous

drug.[3]

http://sc.judiciary.gov.ph/jurisprudence/2011/september2011/196390.htm#_ftn1






















In the course of the proceedings in the RTC, on July 30, 2009, Brodett filed

a MotionToReturn Non-Drug Evidence. He averred that during his arrest, Philippine Drug

Enforcement Agency (PDEA) had seized several personal non-drug effects from him,including a 2004

Honda Accord car with license plate no. XPF-551;and that PDEArefused to return his personal effects

despite repeated demands for their return. He prayed that his personal effects be tendered to the trial

court to be returned to himupon verification.[4]

On August 27, 2009, the Office of the City Prosecutor submitted its Comment and

Objection ,[5] proposingthereby that the delivery to the RTC of the listedpersonal effects for safekeeping,

to be held there throughout the duration of the trial, would be to enable the Prosecution and the

Defense to exhaust their possible evidentiary value. The Office of the City Prosecutor objected to the

return of the car because it appeared to be the instrument in the commission of the violation of Section

5 of R.A. No. 9165 due to its being the vehicle used in the transaction of the sale of dangerous drugs.

On November 4, 2009, the RTC directedthe release of the car, viz :

WHEREFORE, the Director of PDEA or any of its authorized officer or

custodian is hereby directed to: (1) photograph the abovementioned Honda

Accord, before returning the same to its rightful owner Myra S. Brodett and the

return should be fully documented, and (2) bring the personal properties as listed

in this Order of both accused, Richard S. Brodett and Jorge J. Joseph to this

court for safekeeping, to be held as needed.

SO ORDERED.[6]

PDEA moved to reconsider the order of the RTC, but its motion was denied on February

17, 2010 for lack of merit, to wit:

WHEREFORE,premises considered, the Motion for Reconsideration is

hereby DENIED for lack of merit. The Order of the Court dated November 4,

2009 is upheld.

SO ORDERED.[7]

Thence, PDEA assailed the order of the RTC in the Court of Appeals (CA) by petition

for certiorari, claiming that the orders of the RTC were issued in grave abuse of discretion amounting

to lack or excess of jurisdiction.

On March 31, 2011, the CA promulgated its Decision,[8]

dismissing the petition

for certiorari thusly:

xxxx

Here it is beyond dispute that the Honda Accord subject of this petition

is owned by and registered in the name of Myra S. Brodett, not accused Richard

Brodett. Also, it does not appear from the records of the case that said Myra S.

Brodett has been charged of any crime, more particularly, in the subject cases of

possession and sale of dangerous dru gs. Applying Section 20 of the law to the

dispute at bar, We therefore see no cogent reason why the subject Honda Accord

may not be exempted from confiscation and forfeiture.

xxxx

We thus cannot sustain petitioners submission that the subject car, being an instrument of the offense, may not be released to Ms. Brodett and

should remain in custodia legis.The letters of the law are plain and

unambiguous. Being so, there is no room for a contrary construction, especiallyso that the only purpose of judicial construction is to remove doubt and

uncertainty, matters that are not obtaining here. More so that the required literal

interpretation is consistent with the Constitutional guarantee that a person may

not be deprived of life, liberty or property without due process of law.

WHEREFORE, the instant petition is DENIED and consequently

DISMISSED for lack of merit.

SO ORDERED.[9]

Hence, PDEA appeals.

Issues

Essentially,PDEA asserts that the decision of the CAwas not in accord with applicable laws

and the primordial intent of the framers of R. A. No. 9165 .[10]It contends that the CA gravely erred in































its ruling; that the Honda Accord car, registered under the name of Myra S. Brodett (Ms.Brodett), had

been seized from accused Brodettduring a legitimate anti-illegal operation and should not be released

from the custody of the law;that the Motion to Return Non -Drug Evidencedid not intimate or allege

that the car had belonged to a third person; and that even if the car had belonged to Ms. Brodett, a third

person, her own ership did n ot ipso facto authorize its release, because she was under the obligation to

prove to the RTC that she had no knowledge of the commission of the crime.

In hisComment ,[11]

Brodettcounters that the petitioner failed to present any question of law

that warranted a review by the Court;that Section 20 of R. A. No. 9165 clearly and unequivocally

states that confiscation and forfeiture of the proceeds or instruments of the supposed unlawful act in

favor of the Government may be done by PDEA, unless such proceeds or instruments are the property

of a third person not liable for the unlawful act; that PDEA is gravely mistaken in its reading that the

third person must still prove in the trial court that he has no knowledge of the commission of the crime;

and that PDEA failed to exhaust all remedies before filing the petition for review.

The decisive issue is whether or not the CA erred in affirming the orderfor the release of the

car to Ms.Brodett.

Ruling

The petition is meritorious.

I

Applicable laws and jurisprudence on releasing

property confiscated in criminal proceedings

It is not open to question thatin a criminal proceeding, the court having jurisdiction over the offense

has the power to order upon conviction of an accused the seizure of (a) the instruments to commit the

crime, including documents, papers, and other effects that are the necessary means to commit the

crime; and (b) contraband, the ownership or possession of which is not permitted for being illegal. As

justification for the first, t he accused must not profit from his crime, or mu st not ac quire prop erty or

the right to possession of property through his unlawful act .[12]As justification for thesecond, to return

to the convict from whom thecontraband was taken, in one way or another,is not prudent or proper,

because doing so will giv e rise to a violation of the law for po ssessing the contraband again .[13]Indeed,

the court having jurisdiction over the offense has theright to dispose of property used in the

commission of the crime, such disposition being an accessory penalty to be imposed on the accused,

unless the property belongs to a third person not liable for the offense that it was used as the instrument

to commit.[14]

In case of forfeiture of property for crime, title and ownership of the convict are absolutely

divested and shall pass to the Government.[15] But it is required that the property to be forfeited must be

before the court in such manner that it can be said to be within its jurisdiction.[16]

According to the Rules of Court , personal property may be seized in connection with a criminal

offense either by authority of a search warrant or as the product of a search incidental to a lawful

arrest. If the search is by virtue of a search warrant, the personal property that may be seized may be

that which is the subject of the offense; or that which has been stolen or embezzled and other proceeds,

or fruits of the offense; orthat which has been used or intended to be used as the means of committing

an offense.[17] If the search is an incident of a lawful arrest, seizure may be made of dangerous weapons

or anything that may have been used or may constitute proof in the commission of an

offense.[18]

Should there be no ensuing criminal prosecution in which the personal property seized is

used as evidence, itsreturn to the person from whom it was taken, or to the person who is entitled to its

































possession is bu t a matter of course,[19]

except if it is contraband or illegal per se . A proper court may

order the return of property held solely as evidence should the Government be unreasonably delayed in

bringing a criminal prosecution.[20]

The order for the disposition of such property can be made only

when the case is finally terminated.[21]

Generally, the trial court is vested with considerable legal discretion in the matter of disposing of

property claimed as evidence,[22] and this discretion extends even to the manner of proceeding in the

event the accused claims the property was wrongfully taken from him.[23]

In particular, the trial court

has the power to return property held as evidence to its rightful owners, whether the property was

legally or illegally seized by the Government.[24] Property used as evidence must be returned once the

criminal proceedings to which it relates have terminated, unless it is then subject to forfeiture or other

proceedings.[25]

II

Order of release was premature and made

in contravention of Section 20, R.A. No. 9165

It is undisputed that the ownership of the confiscated car belonged to Ms. Brodett, who was not

charged either in connection with the illegal possession and sale of illegal drugs involving Brodett and

Joseph that were the subject of the criminal proceedings in the RTC, or even in any other criminal

proceedings.

In its decision under review, the CA held as follows:

A careful reading of the above provision shows that confiscation and

forfeiture in drug-related cases pertains to all t he proceeds and propertiesderived from the unlawful act, including but not limited to, money and other

assets obtained thereby, and the instruments or tools with which the particular

unlawful act was committed unless they are the property of a third person not

liable for the unlawful act . Simply put, the law exempts from the effects of

confiscation and forfeiture any property that is owned by a third personwho is not liable for the unlawful act .

Here, it is beyond dispute that the Honda Accord subject of this

petition is owned by and registered in the name of Myra S. Brodett, not

accused Richard Brodett. Also, it does not appear from the records of the casethat said Myra S. Brodett has been charged of any crime, more particularly, in

the subject cases of possession and sale of dangerous drugs. Applying Section

20 of the law to the dispute at bar, We therefore see no cogent reason why the

subject Honda Accord may not be exempted from confiscation and forfeiture.

Basic is the rule in statutory construction that when the law is clear andunambiguous, the court has no alternative but to apply the same according to its

clear language. The Supreme Court had steadfastly adhered to the doctrine that

the first and fundamental duty of courts is to apply the law according to its

express terms, interpretation being called only when such literal application is

impossible. No process of interpretation or construction need be resorted to

where a provision of law peremptorily calls for application.

We thus cannot sustain petitioners submission that the subject car,

being an instrument of the offense, may not be released to Ms. Brodett and

should remain in custodia legis. The letters of the law are plain and

unambiguous. Being so, there is no room for a contrary construction, especially

so that the only purpose of judicial construction is to remove doubt and

uncertainty, matters that are not obtaining here. More so that the required literal

interpretation is not consistent with the Constitutional guarantee that a person

may not be deprived of life, liberty or property without due process of

law.[26] (emphases are in the original text)

The legal provision applicable to the confiscation and forfeiture of the proceeds or instruments of the

unlawful act, including the properties or proceeds derived from illegal trafficking of dangerous drugs

and precursors and essential chemicals,is Section 20 of R.A. No. 9165, which pertinently providesas

follows:

Section 20.Confiscation and Forfeiture of the Proceeds or Instruments

of the Unlawful Act, Including the Properties or Proceeds Derived from the

Illegal Trafficking of Dangerous Drugs and/or Precursors and Essential

Chemicals. Every penalty imposed for the unlawful importation, sale, trading,

administration, dispensation, delivery, distribution, transportation ormanufacture of any dangerous drug and/or controlled precursor and essential

chemical, the cultivation or culture of plants which are sources of dangerousdrugs, and the possession of any equipment, instrument, apparatus and other

paraphernalia for dangerous drugs including other laboratory equipment, shall

carry with it the confiscation and forfeiture, in favor of the government, of all

the proceeds derived from unlawful act, including, but not limited to, money and

other assets obtained thereby, and the instruments or tools with which the

particular unlawful act was committed, unless they are the property of a third



































person not liable for the unlawful act, but those which are not of lawful

commerce shall be ordered destroyed without delay pursuant to the provisions of

Section 21 of this Act.

After conviction in the Regional Trial Court in the appropriate criminal

case filed, the Court shall immediately schedule a hearing for the confiscation

and forfeiture of all the proceeds of the offense and all the assets and properties

of the accused either owned or held by him or in the name of some other persons

if the same shall be found to be manifestly out of proportion to his/her lawfulincome: Provided, however, That if the forfeited property is a vehicle, the same

shall be auctioned off not later than five (5) days upon order of confiscation or

forfeiture.

During the pendency of the case in the Regional Trial Court, no

property, or i ncome derived there from, which may be confiscated an d forfeited,

shall be disposed, alienated or transferred and the same shall be

in custodialegis and no bond shall be admitted for the release of the same.

The proceeds of any sale or disposition of any property confiscated or

forfeited under this Section shall be used to pay all proper expenses incurred in

the proceedings for the confiscation, forfeiture, custody and maintenance of the

property pending disposition, as well as expenses for publication and court

costs. The proceeds in excess of the above expenses shall accrue to the Board to

be used in its campaign against illegal drugs.[27]

There is no question, for even PDEA has itself pointed out, that the text of Section 20 of R. A. No.

9165relevant to the confiscation and forfeiture of the proceeds or instruments of the unlawful act is

similar to that ofArticle 45 of the Revised Penal Code, which states:

Article 45.Confiscation and Forfeiture of the Proceeds or Instruments

of theCrime. Every penalty imposed for the commission of a felony shall carry

with it the forfeiture of the proceeds of the crime and the instruments or tools

with which it was committed.

Such proceeds and instruments or tools shall be confiscated and

forfeited in favor of the Government, unless they be the property of a third

person not liable for the offense , but those articles which are not subject oflawful commerce shall be destroyed.

The Court has interpreted and applied Article 45of the Revised Penal Codein People v.

Jose ,[28]

concerning the confiscation and forfeiture of the car used by the four accused when they

committed theforcible abduction with rape, although the car did not belong to any of them, holding:

xxx Article 45 of the Revised Penal Code bars the confiscation and

forfeiture of an instrument or tool used in the commission of the crime if such be

the property of a third person not liable for the offense, it is the sense of this

Court that the order of the court below for the confiscation of the car in question

should be set aside and that the said car should be ordered delivered to the

intervenor for foreclosure as decreed in the judgment of the Court of First

Instance of Manila in replevin case. xxx[29]

Such interpretation is extended by analogy to Section 20, supra. To bar the forfeiture of the tools and

instruments belonging to a third person,therefore, there must be an indictment charging such third

person either as a principal, ac cessory, or accomplice. Less than that will not suffice to prevent the

return of the tools and instruments to the third person, for a mere suspicion of that persons

participation is not sufficient ground for the court to order the for feiture of the goods seized.[30]

However, the Office of the City Prosecutorproposed throughits Comment and Objection submitted on

August 27, 2009 in the RTC[31]

that the delivery to the RTC of the listed personal effects for

safekeeping, to be held there throughout the duration of the trial, would be to enable the Prosecution

and the Defenseto exhaust their possible evidentiary value. The Office of the City Prosecutor further

objected to the return of the car because it appeared to bethe vehicle used in the transaction of the sale

of dangerous drugs, and, as such, was the instrument in the commission of the violation of Section 5 of

R.A. No. 9165.

On its part, PDEA regards the decision of the CA to be not in accord with applicable laws

and the primordial intent of the framers of R. A. No. 9165,[32]and contends that the car should not be

released from the custody of the law because it had been seized from accused Brodett during a

legitimate anti-illegal operation. It argues that the Motion to Return Non-Drug Evidencedid not



























intimate or allege that the car had belonged to a third person; and that even if the car had belonged to

Ms. Brodett, a third person, her ownership did not ipso facto authorize its release, because she was

under the obligation to prove to the RTC that she had no knowledge of the commission of the crime. It

insists that the car is a property in custodialegis and may not be released during the pendency of the

trial.

We agree with PDEA and the Office of the City Prosecutor.

We note that the RTC granted accused Brodetts Motion To Re turn Non-Drug Evidence on

November 4, 2009 when t he criminal proceedings were still going on, and the trial was y et to be

completed. Ordering the release of the car at that point of the proceedings was premature, considering

that the third paragraph of Section 20, supra, expressly forbids the disposition , alienation, or transfer of

any property, or income derived therefrom, that has been confiscated from the accused charged under

R.A. No. 9165 during the pendency of the proceedings in the Regional Trial Court. Section 20 further

expressly requires that such property or income derived therefrom should remain in custodialegis in all

that time and that no bond shall be admitted for the release of it.

Indeed, forfeiture, if warrantedpursuant to either Article 45 of the Revised Penal Code and

Section 20 of R.A. No. 9165, would be a part of the penalty to be prescribed. The determination of

whetheror not the car (or any other article confiscated in relation to the unlawful act) would be subject

of forfeiture could be made only when the judgment was to be rendered in the proceedings. Section 20

is also clear as to this.

The status of the car (or any other article confiscated in relation to the unlawful act) for the

duration of the trial in the RTCas being in custodialegisisprimarily intended to preserve it as evidence

and to ensure its availability as such. To release it before the judgment is rendered is to deprive the

trial court and the parties access to it as evidence. Consequently, that photographs were ordered to be

taken of the car was not enough, for mere photographs might not fill in fully the evidentiary need of

the Prosecution. As such, the RTCs assailed orders were issued with grave abuse of discretion

amounting to lack or excess of jurisdiction for being in contravention with the express language of

Section 20 of R.A. No. 9165.

Nonetheless, the Court need not annul the assailed orders of the RTC, or reverse the

decision of the CA. It appears thaton August 26, 2011 the RTC promulgated its decision on the merits

in Criminal Case No. 09-208 and Criminal Case No. 09-209, acquitting both Brodettand Joseph and

further ordering the return to the accused of all non-drug evidence except the buy-bust money and the

genuine money,because:

The failure of the prosecution therefore to establish all the links in the

chain of custody is fatal to the case at bar. The Court cannot merely rely on the

presumption o f regularity in the performa nce of official functio n in view of the

glaring blunder in the handling of the corpus delicti of these cases. The

presumption of regularity should bow down t o the presumption of innocence ofthe accused. Hence, the two (2) accused BRODETT and JOSEPH should be as it

is hereby ACQUITTED of the crimes herein charged for Illegal Selling and

Illegal Possession of Dangerous Drugs.

WHEREFORE, premises considered, for failure of the prosecution to

prove the guilt of the accu sed beyond reasonable doubt, RICHARD BRODETT

y SANTOS and JORGE JOSEPH y JORDANA are ACQUITTED of the crimescharged in Criminal Case Nos. 09-208 and 09-209.

The subject drug evidence are all ordered transmitted to the PhilippineDrug Enforcement Agency (PDEA) for proper disposition. All the non-drug

evidence except the buy bust money and the genuine money are orderedreturned to the accused.

The genuine money used in the buy bust operation as well as the

genuine money confiscated from both accused are ordered escheated in favor ofthe government and accordingly transmitted to the National Treasury for proper

disposition. (emphasis supplied)[33]







The directive to return the non-drug evidence hasovertaken the petition for review as to

render further action upon it superfluous. Yet, the Court seizes the opportunity to perform its duty to

formulate guidelines on the matter of confiscation and forfeiture of non-drug articles, including those

belonging to third person s not liable for the o ffense, in order to clarify the extent of t he power of the

trial court under Section 20 of R.A. No. 9165.[34]This the Court must now do in view of the question

about the confiscation and forfeiture of non-drug objects being susceptible of repetition in the

future.[35]

We rule that henceforth the Regional Trial Courts shall comply strictly with the provisions

of Section 20 of R.A. No. 9165, and should not release articles, whether drugs or non-drugs, for the

duration of the trial and before the rendition of the judgment, even if owned by a third person who is

not liable for the unlawful act.

IN VIEW OF THE FOREGOING, the petition for review isDENIED.

The Office of the Court Administrator is directed to disseminate this decision to all trial

courts for their guidance.

SO ORDERED.

FIRST DIVISION

TERESITA SUSON y BANZON and

ANTONIO FORTICH y SILANG,

Petitioners,

- versus -

PEOPLE OF THE PHILIPPINES, Respondent.

G. R. No. 152848

Present:

PANGANIBAN, C.J.

Chairperson, YNARES-SANTIAGO, AUSTRIA-MARTINEZ,

CALLEJO, SR., andCHICO-NAZARIO, JJ .

Promulgated:

July 12, 2006

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N

CHICO-NAZARIO, J .:

Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, which seeks the

reversal of the Decision[1]

of the Court of Appeals dated 30 October 2001 in CA-G.R. CR No. 22775

which affirmed the decision of the Regional Trial Court (RTC), Branch 25, Danao City, in Criminal

Case No. DNO-1532,and its Resolution[2]

dated 26 February 2002 denying petitioners Teresita B.

Suson and Antonio S. Fortichs Motion for Reconsideration.

On 16 April 1996, petitioners Teresita B. Suson and Antonio S. Fortich, a.k.a. Jojo Muslim, were

charged with Violation of Section 15, Article III, in relation to Section 21, Article 4 of Republic Act







http://sc.judiciary.gov.ph/jurisprudence/2006/july2006/G.%20R.%20No.%20152848.htm#_ftn1












No. 64 25, otherwise known as The Dan gerous Drugs Act of 1972.[3]

An Amended Information was

filed on 2 May 1996.[4]

On2 July 1996, a Second Amended Information[5]

was filed, the accusatory

portion of which reads:

That on or about April 12, 1996 at 3:30 oclock in the afternoon more or less inS. Duterte St., Suba, Danao City, Philippines and within the jurisdiction of this

Honorable Court, the above-named accused in a buy bust operation, conspiring,

confederating together and mutually helping one another, did then and there

willfully, unlawfully and feloniously sell and deliver three (3) packs of white

crystalline substance containing metamphetamine hydrochloride, commonly

known as shabu, a regulated drug, weighing .7 grams to informant decoy SPO2

Alicia A. Patio for a total consideration of P2,400, without any permit from the

proper authorities.[6]

The case was filed before Branch 25 of the RTC of Danao City and docketed as Criminal

Case No. DNO-1532.

Petitioner Suson, together with Andres Camargo, was also charged with Illegal Possession

of Shabu and Firearm in Criminal Cases No. DNO-1533 and No.DNO-1534 before the same court.

When arraigned, petitioners, assisted by counsel de oficio, pleaded Not Guilty.[7] Thereafter,

the three cases were tried jointly.

The facts which we find supported by evidence, are summarized by the Office of the

Solicitor General and are quoted by the Court of Appeals:

After conducting a few days earlier a surveillance on

appellant Teresita Susons house located at S. Duterte St., Suba, Danao City, the

Narcotics Team of Cebu City, in coordination with the Danao City Police

Station, proceeded to the said house in the afternoon of April 12, 1996 in order

to make a buy-bust operation. SPO2 Alicia Patio, a member of the Narcotics

Team who met Suson on April 10, 1996 in order to buy shabu and who was told

by the latter to come back on April 12, 1996, posed as the poseur-bu yer.

SPO2 Patio, who was then positioned outside the gate of Susons house, called

the latter in order to buy shabu. Answering the call, Suson went out of the house

and, after receiving the total sum of P2,400.00 in marked bills, went backinside. Moments later, appellant Antonio Fortich approached SPO2 Patio and

handed to her three (3) packs of shabu.

Subsequently, Fortich went across the street and joined other persons who were

playing mahjong. On the other hand, after SPO2 Patio had made a pre-arranged

signal, the police authorities accompanying her rushed towards Fortich andarrested him.

The packs of shabu which were handed to SPO2 Patio were submitted to the

PNP Crime Laboratory which, after examining the same, found that the said

items were positive of the regulated drug known

as Methampetamine Hydrochloride.

Later in the afternoon of the same date, and after the police authorities were able

to secure a Search Warrant (for the search of shabu from the house of Suson)

from the trial court, said search warrant was implemented and the police

companions of SPO2 Patio, searched, in the presence of the barangay captain in

the ar ea, Susons house. Thereupon, Suson was apprehen ded. The police was

also able to recover, among others, the marked bills amounting

to P1,180.00 from Susons possession.[8]

Petitioners contend that no buy-bust operation occurred and that the evidence - shabu and

firearm - allegedly confiscated in their home was planted evidence.

On 30 September 1998, the trial court rendered its decision convicting petitioners of the

crime of illegal sale of shabu in Criminal Case No. DNO-1532, while acquitting petitioner Suson and

Andres Camargo of the crimes of illegal possession of shabu and firearm in Criminal Cases No. DNO-

1533 and No. DNO-1534. Thedecretal portion of the Decision reads:

WHEREFORE, for proof beyond reasonable doubt, the Court findsaccused Antonio Fortich and Teresita Suson in Criminal Case No. DNO-1532

GUILTY beyond reasonable doubt for Violation of Section 15, Article III, in

relation to Section 21, Article IV of Republic Act 6425, as amended, and in

conformity with Supreme Court doctrine in Pp. vs. Simon, 234 SCRA 555, each

accused is hereby sentenced to suffer an indeterminate penalty of SIX (6)

MONTHS and ONE (1) DAY of prision correccional as minimum to SIX (6)

YEARS of prision correccional as maximum. The amount of P1,180 being th e

fruit of a crime is hereby confiscated in favor of the government



























For lack of sufficient evidence, the Court hereby ACQUITS accused

Andres Camargo and Teresita Suson from th e crime of illegal possession ofshabu and firearm, as charged in Crim. Case Nos. DNO-1533 and 1534. The

amount of P34,770 and one (1) cellular phone marked SIEMEN are hereby

ordered returned to said accused Teresita Suson.[9]

The trial court declared that petitioners, by their concerted action, sold shabu powder to

poseur-buyer SPO2 Alicia Patio for P2,400.00, and that an hour after the sale, SPO3

Alejandro Bian confiscated or recovered from petitioner Suson marked money used in the buy-bust

operation amounting to P1,180.00 whose serial numbers corresponded to the serial numbers recorded

in the log book kept by SPO3 Bian as marked money used in said operation.

On 29 October 1 998, petitioners ap pealed to the Court of Appeals via a Notice o f

Appeal.[10]

On 30 October 2001, the Court of Appeals affirmed in toto the RTCs decision in Criminal

Case No. DNO-1532 and dismissed, for lack of merit, petitioners a ppeal.[11]

The Motion for

Reconsideration[12]

filed by petitioners was denied[13]

on 26 February 2002.

Petitioners appeal their conviction before this Court grounded on the following:

1. THE DECISION OF THE HONORABLE COURT OF APPELAS AS WELL

AS ITS RESOLUTION DENYING A MOTION FOR RECONSIDERATION

THEREOF IN CA-GR. CR NO. 22775 AND SUBJECT HEREOF IS A T OTAL

DEPARTURE FORM (sic) ESTABLISHED DOCTRINES, EXPRESS LEGAL

PROVISIONS AND PRINCIPLES OF LAW; THUS SAID APPELLATE

COURT, IN SUSTAINING THE FINAL ORDER OF THE TRIAL COURT,

GRAVELY ABUSED ITS DISCRETION TANTAMOUNT TO A WANT, IF

NOT A TOTAL LACK, OF JURISDICTION;

2. THE HONORABLE COURT OF APPEALS ALSO REVERSIBLY ERRED

AND GRAVELY ABUSED ITS DISCRETION IN IGNORING AND

DEFYING THE OVERWHELMING EVIDENCE FOR PETITIONERS

(ACCUSED-APPELLANTS THEREAT) OR A LACK OF EVIDENCE TO

PROVE THE GUILT OF THE ACCUSED (HEREIN PETITIONERS)BEYOND REASONABLE DOUBT WHICH SHOW THE GLARING

VIOLATION OF SAID COURT IN ITS DECISION OVER THE BASICS OF

HEREIN PETITIONERS; THUS AN OTHERWISE EVIDENTIARY ASPECT

OF THE CASE IS IN QUESTION, THE JUDGEMENT (sic) UNSUPPORTED

BY THE EVIDENCE IF NOT CONTRARY THERETO, BECOMES NOW A

LEGAL QUESTION THAT CALLS FOR THE INTERVENTION OF THEHONORABLE SUPREME COURT.

The Supreme Court accords, as a general rule, conclusiveness to a lower courts findings of fact

except when: (1) the conclusion is a finding grounded entirely on speculation, surmise and conjecture;

(2) the inference made is manifestly an error or founded on a mistake; (3) there is grave abuse of

discretion; (4) the judgment is based on misapprehension of facts; and (5) the findings of fact are

premised on a want of evid ence and/or contradicted b y evidence on re cord.[14]

Especially in criminal

cases where the accused stands to lose his liberty by virtue of his conviction, the Court must be

satisfied that the factual findings and conclusions of the lower courts leading to his conviction must

satisfy the standard of proof beyond reasonable doubt .[15]

Petitioners ask us to review the findings of fact made by the trial court alleging that their

conviction was not supported by, and even contrary to, the evidence per its own findings of facts.

In showing the error of the lower court, petitioners quoted the Transcript of Stenographic Notes and its

findings contained in its decision. It quoted part of the testimony of SPO2 Patio as follows:

A There was somebody, a male person who got outside and later I identified that

male person named Jojo who was the one who delivered the thing to

me.

Q What was the thing delivered by Jojo to you?

A Three (3) packs of shabu.































Q Then after that, what did Jojo tell you, if any?

A The gate was already opened when he delivered to me the shabu and after he

delivered the shabu to me he went across [the road], and I asked him,

where are you going, and he answered to me that he will play

mahjong. . .[16]

The lower courts decision partially reads:

Prosecution would want to show that after surveillance conducted

on April 8, 1996 in the residence of accused Antonio Fortich

and Teresita Suson the Narcom in coordination with the Danao City Police

conducted a buy-bust operation on a ccused. That with SPO2

Alicia Patino acting as po seur/buyer, a pr e-arranged signal in the manner of

combing her hair was agreed when actual bust-buying of shabu is

consummated. That said Alicia Patino agreed to buy shabu from

accused Teresita Suson who received the amount of P2,400.00 and a few

minutes thereafter said accused Teresita Suson came back with a male

companion named Antonio Fortich who delivered to Alicia Patino three (3)

packs of shabu. Said accused Antonio Fortich then crossed the street towar ds

where mahjong was played about 4 0 meters away. Upon the agreed signal,SPO3 Eduardo Misaproceeded to wh ere Antonio Fortich was located and

arrested him. Then followed by other rai ding companions to th e house of

Andres Camargo where accused Teresita was located and arrested her. . .[17]

After going over the Transcript of Stenographic Notes and the Decision of the RTC, it behooves us to

have a second look on the evidence on record. It appears that theRTCs finding as to who delivered

the shabu to SPO2 Patio contradicts, or is n ot i n a ccord with, SPO2 Patios testimony. From the

testimony of SPO2 Patio, it is clear that it was only petitioner Fortich who delivered to her the 3 packs

of shabu. On the other hand, the RTC narrated that after petitioner Suson received the payment for

the shabu and went inside her home, she came back out with petitioner Fortich who delivered or

handed over the shabu to SPO2 Patio. Petitioner would like to capitalize on the RTCs gaffe in making

its findings of fact.

The question is: Can this inadvertence on the part of the RTC exonerate petitioners and cause the

reversal of their conviction?

We do not think so.

It must be made clear that what controls are the statements in the Transcript of Stenographic Notes and

not the findings of fact which is merely taken from the Transcript of Stenographic Notes and from

other documentary exhibits. This Court is not prevented from going into the Transcript of Stenographic

Notes to verify if the statements made b y the witnesses are correctly integrated i n the decision. If there

are inaccuracies, this Court can rectify the same and be the basis of our decision.

In the case at bar, petitioners were convicted for Violation of Section 15 (Sale), Article III, in relation

to Section 21 (Conspiracy), Article IV of Republic Act No. 6425, as amended. Many times, this Court

has already ruled that a buy-bust operation is a form of entrapment which has repeatedly been accepted

to be a valid means of arresting violators of the Dangerous Drugs Law.[18]

In every prosecution for

illegal sale of prohibited or regulated drugs, the following elements must be established: (1) the

identity of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold

and the payment therefor .[19]

In proving that the sale was consummated, the prosecution presented the

poseur buyer - SPO2 Patio.

The testimony of SPO2 Patio on the sale of the shabu is as follows:

PROSECUTOR GEROMO: continues

Q: After the briefing on April 12, 1996, what happened next?

A: After our lunch we proceeded here in Danao City all narcom Officers.



















Q: Can you tell the Court about how many wer e you who came here

in Danao City?

A: Maybe ten (10) or twelve personnel.

Q: After that, what happened next?

A: We contacted Major Castro.

Q: Did you have a conference with Major Castro at that time?

A: We have a conference but it was not done at the headquarters. We had our

conference but it was not done at the headquarters, we had our

conference on a secret place.

Q: Now after your conference with Major Castro on April 12, 1996 , what

happened after that?

A: At about 3:30 p.m. we proceeded to the house o f Tessie and ou r back u p

were positioned on strategic places and I went t o the gat e

of Tessie and I called her up.

Q: After you called up Tessie, were you able to have a conversation with her?

A: She went outside the gate and we have our conversation.

Q: What did you tell Tessie if any?

A: I told her I wanted now to buy shabu because she told me to return on that

very day.

Q: Did you tell her, how much are you going to buy?

A: I told her I will buy shabu worth P2,400 and then she told me that the packworth P800.00 each.

Q: Then after that, what did Tessie tell you if any?

A: She received the money and she told me to just wait for a while and she went

inside her house and I just waited for her.

Q: After you waited for her, what happened next?

A: There was somebody, a male person who got outside and later I identified

that male person na med Jojo who was the on e who delivered t he

thing to me.

Q: What was the thing delivered by Jojo to you?

A: Three (3) packs of shabu.

Q: Then after that, what did Jojo tell you, if any?

A: The gate was already opened when he delivered to me the shabu and after he

delivered the shabu to me he went across, and I asked him, where are

you going, and he answered to me that he will play mahjong game.

Q: What made you [ask] that question to Jojo?

A: My purpose in asking Jojo is to be sure that at the time of the arrest he will be

there and he could be located.

Q: How far was the place where Jojo went across from the house where you

were at the time?

A: Just across the street where the house is situated when he played mahjong.

Q: After Jojo told you that he will play mahjong, what did you do?

A: I opened my bag and I placed the shabu inside the bag and I took my comb

and I comb my hair because that was our pre-arranged signal.

Q: Now after giving your pre-arranged signal, what happened?

A: My companions rushed towards Jojo.

Q: Was Jojo arrested?

A: Yes, sir, we let Jojo return to the house and got inside the house.[20]

From the categorical and straightforward testimony of SPO2 Patio, the elements of the crime charged

have been sufficiently establi shed. Her testimony was corr oborated on material points by SPO3

Eduardo Misa who acted as a back-up during the buy-bust operation. SPO3 Misa testified:

Q What did you do in order to effect the buy bust operation?

A After the selling and buying were consummated, Alicia Patio made a pre-

arranged signal, and on that occasion I was not the only back-up. We

were many, including the PNP ofDanao City.

Q At about what time was the buy bust operation conducted?

A More or less, at 3:30 oclock in the afternoon, sir.







Q Were you able to see the accused in this instance?

A Yes, sir.

Q Who of the two accused did you see first?

ATTORNEY CAETE:

I object, Your Honor, there is no showing that its either the two accused who

gave.

COURT:

Saw, saw. Whom did you see.

ATTORNEY CAETE:

Whom did you give the money?

COURT:

No, no. Whom did you see first?

PROSECUTOR GEROMO:

Whom did you see first?

WITNESS continues:

A It was Tessie, sir.

COURT (TO WITNESS):

Q From where?

A From the house of a certain Camargo.

COURT continues:

Q She came from the house of Camargo?

A Yes, Your Honor.

COURT (TO PROSECUTOR GEROMO):

Proceed.

PROSECUTOR GEROMO continues:

Q From the place where you were positioned, did you see also the poseur-buyer,

Alicia Patio?

A Yes, sir, they were talking to each other.

Q After they were talking to each other, can you tell the Court what transpired

next?

A Alicia Patio gave money to her and she went to the house, and it

was Jojo who delivered the shabu to Alice.

Q After that shabu was delivered, what happened next?

WITNESS continues:

A Jojo went away and went across the road, and thereafter, Alicia Patio gave the

pre-arranged signal.

PROSECUTOR GEROMO continues:

Q After that pre-arranged signal. . . by the way, what was that pre-arranged

signal?

A By combing her hair, sir.

Q After you saw that pre-arranged signal given by Alicia Patio, what did you

do?

A We immediately approached Jojo who at that time was in the mahjong place

because they wanted to play mahjong, but they were not able to playmahjong because we arrested him.[21]

The testimonial evidence was supported by the phy sical evidence on record. The three

pack s[22] -- containing a white crystalline substance weighing .7 gram -- which were received from

petitioner Fortich, wer e turned o ver to the PNP Crime Laborat ory, Camp Sotero Cabahug, Cebu City,

for analysis. During trial, these three packs were submitted and marked in evidence. Police Inspector

Myrna Areola, PNP Forensic Analyst, testified that the substance contained in the packs were positive

for Methamphetamine Hydrochloride or shabu. Said finding was indicated in Physical Science Report

No. C-263-96.[23]















Petitioners contend that the RTC decision is contrary to law and jurisprudence. They claim that despite

the failure of the raiding/searching team to submit an inventory of the confiscated articles to the court

which issued the search warrant, the court still considered the shabu in convicting them.

This contention is untenable.

The instant case involves the sale of shabu (Crim. Case No. DNO-1532) which is separate and distinct

from Criminal Cases No. DNO-1533 and No. DNO-1534 involving Illegal Possession of Shabu and

Firearm. In the two latter cases, petitioner Suson and accused Camargo were acquitted. It is in this case

for illegal possession of shabu that the court stated that the raiding team allegedly did not make an

inventory of the confiscated drugs. Nowhere in the decision did the court say that the lack of inventory

referred to the case for the sale of shabu (Criminal Case No. DNO-1532). In the case for the sale

of shabu which is now pending before this Court, no inventory or return of search warrant is required

because the shabu involved was not confiscated by virtue of a search warrant; same was obtained by

the poseur- buyer because it was delivered to her by petitioner Fortich after payment was made to

petitioner Suson. As previously discussed, the shabu sold to the poseur-buyer was subjected to

laboratory examination and presented in court as evidence which clearly proves the identity of the

drug. Thus, petitioners reliance on the statement of the RTC that grave doubt is entertained as to the

genuineness of the specimen for the searching teams failure to submit an inventory thereof, is

misplaced.

To further cast doubts on the validity and regularity of the buy-bust operation, petitioners argue that

the marked money allegedly used in the buy-bust was not officially marked since the same was merely

recorded in a private logbook.

Such argument will not help p etitioners get out of the pr edicament they are in. The recording of

marked money used in a buy-bust operation is not one of the elements for the prosecution of sale of

illegal drugs. The recording or non-recording thereof in an official record will not necessarily lead to

an acquittal as long as the sale of the prohibit ed drug is adequately p roven. In the case at bar,

SPO2 Patio, the poseur-buyer, testified on the circumstances regarding the sale of the shabu for which

petitioners were charged and convicted. Settled is the rule that in the prosecution for the sale of

dangerous drugs, the absence of marked money does not create a hiatus in the evidence for the

prosecution as long as the sale of dangerous drugs is adequately proven and the drug subject of the

transaction is presented before the court. Neither law nor jurisprudence requires the presentation of any

money used in the buy-bust operation.[24]

What is material to a prosecution for illegal sale of dangerous

drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court

of the corpus delicti as evidence.[25] In the instant case, both were sufficiently shown by the

prosecution.

Petitioners deny that a buy-bust operation took place and claim that the evidence against

them is planted evidence.

We are not convinced. The defense of denial or frame-up, like alibi, has been viewed with

disfavor for it can easily be concocted and is a common defense ploy in most prosecutions for violation

of the Dangerous Drugs Act. [26] Denial is a weak form of defense, particularly when it is not

substantiated by clear and convincing evidence just like in the case before us.

All told, the illegal sale of drugs having been established beyond reasonable doubt, we are

constrained to uphold petitioners conviction.
















Finally, we determine the proper imposable penalty. The proper penalty to be imposed for

the illegal sale of 0.7 gram of shabu would be a prision correcional , pursuant to the second paragraph

of Section 20 of Republic Act No. 6425, as amended by Section 17 of Republic Act No. 7659 and in

consonance with the doctrine laid down in People v. Simon.[27]

Further, applying the Indeterminate

Sentence Law, the imposable penalty should be the indeterminate sentence of SIX (6)MONTHS

OF ARRESTO MAYOR, as the minimum, to FOUR (4) YEARS AND TWO (2) MONTHS

OF PRISION CORRECCIONAL, as the maximum.

WHEREFORE, the decision of the trial court in Criminal Case No. DNO-1532 convicting

petitioners Teresita B. Suson and Antonio S. Fortich for the sale of 0.7 gram of " shabu" is

hereby AFFIRMED, with the MODIFICATION that the penalty of impri sonment to be imposed

should be the indeterminate sentence of SIX (6) MONTHS OF ARRESTO MAYOR, as minimum, to

FOUR (4) YEARS AND TWO (2) MONTHS OF PRISION CORRECCIONAL, as maximum.

SO ORDERED.







G.R. No. 125299 January 22, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.FLORENCIO DORIA y BOLADO and VIOLETA GADDAO y CATAMA @

"NENETH," accused-appellants.

PUNO, J. :

On December 7, 1995, accused-appellants Florencio Doria y Bolado and Violeta Gaddao yCatama @ "Neneth" were charged with violation of Section 4, in relation to Section 21 of theDangerous Drugs Act of 1972.

1 The information reads:

That on or about the 5th day of December, 1995 in the City ofMandaluyong, Philippines, a place within the jurisdiction of this

Honorable Court, the above-named accused, conspiring, c onfederatingand mutually helping and aiding one another and without ha ving beenauthorized by law, did, then and there willfully, unlawfully and feloniously

sell, administer, deliver and give away to another eleven (11) plastic

bags of suspected marijuana fruiting tops weighing 7,641.08 grams inviolation of the above-cited law.

CONTRARY TO LAW. 2

The prosecution contends the offense was committ ed as follows: In November 1995,members of the North Metropolitan District, Philippine National Police (PNP) NarcoticsCommand (Narcom), received information from two (2) civilian informants (CI) that one "Jun"

was engaged in illegal drug activities in Mandaluyong City. The Narcom agents decided toentrap and arrest "Jun" in a buy -bust operation. As arranged by one of the CI's, a meetingbetween the Narcom agents and "Jun" was sch eduled on December 5, 1995 at E. J acinto

Street in Mandaluyong City.

On December 5, 1995, at 6:00 in the morning, the CI went to the PNP H eadquarters at

EDSA, Kamuning, Quezon City to prepare for the buy-bust operation. The Narcom agents

formed Team Alpha composed of P/Insp. Nolasco Cortes as team leader and PO3 CelsoManlangit, SPO1 Edmund Badua and four (4) other policemen as members. P/Insp. Cortes

designated P03 Manlangit as the poseur-buyer and SPO1 Badua as his back-up, and the restof the team as perimeter security. Superintendent Pedro Alcantara, Chief of the NorthMetropolitan District PNP Narcom, gave the team P2, 000. 00 to cover operational expenses.

From this sum, PO3 Manlangit set aside P1,600.00 — a one thousand peso bill and si x (6)one hundred peso bills

3 — as money for the buy-bust operation. The market price of one kilo

of marijuana was then P1,600.00. P03 Manlangit marked the bills with his initials and listed

their serial numbers in the police blotter. 4 The team rode in two c ars and headed for the

target area.

At 7:20 of the same morning, "Jun" appeared and the CI introduced PO3 Manlangit asinterested in buying one (1) kilo of marijuana. P03 Manlangit handed "Jun" the marked bills

worth P1,600.00. "Jun" instructed P03 Manlangit to wait for him at the corner of ShawBoulevard and Jacinto Street while he got the marijuana from his associate.

5 An hour later,

"Jun" appeared at the agreed place where P03 Manlangit, the CI and the rest of the teamwere waiting. "Jun" took out from his bag an object wrapped in plastic and gave it to P03Manlangit. P03 Manlangit forthwith arrested "Jun" as SPO1 Badua rushed to help in thearrest. They frisked "Jun" but did not find the marked bills on him. Upon inquiry, "Jun"

revealed that he left the money at the house of his associate named " Neneth. 6 "Jun" led the

police team to "Neneth's" house nearby at Daang Bakal.

The team found the door of "Neneth's" house open and a woman ins ide. "Jun" identified thewoman as his associate.

7 SPO1 Badua asked "N eneth" about the P1,600.00 as PO3

Manlangit looked over "Neneth's" house. Standing by the door, PO3 Manlangit noticed a

carton box under the dining table. He saw that one of the box's flaps was open and inside t hebox was something wrapped in plastic. The plastic wrapper and its contents appeared similarto the marijuana earlier "sold" to him by "Jun." His suspicion aroused, PO3 Manlangit entered

"Neneth's" house and took hold of the box. He peeked inside the box and found that itcontained ten (10) bricks of what appeared to be dried marijuana leaves.

Simultaneous with the box's discovery, SPO1 Badua recovered the marked bills from"Neneth."

8 The policemen arrested "Neneth." They took "N eneth" and "Jun," together with

the box, its contents and the marked bills and turned them over to the investigator at

headquarters. It was only then that the police l earned that "Jun" is Florencio D oria y Boladowhile "Neneth" is Violeta Gaddao y Catama. The one (1) brick of dried marijuana leavesrecovered from "Jun" plus the ten (10) bricks recovered from "Neneth's" house were

examined at the PNP Crime Laboratory. 9 The bricks, eleven (11) in all, were found to be

dried marijuana fruiting tops of various weights totalling 7,641.08 grams.10

The prosecution story was denied by accused-appellants Florencio Doria and VioletaGaddao. Florencio Doria, a 33-year old carpenter, testified that on December 5, 1995, at 7:00in the morning, he was at the gate of his house reading a tabloid newspaper. Two men

appeared and asked him if he knew a certain "Totoy." There were many "Totoys" in their areaand as the men questioning him were str angers, accused-appellant denied knowing any"Totoy." The men took accused-appellant inside his house and accused him of being a

pusher in their community. When accused-appellant denied the charge, the men led him totheir car outside and ordered him t o point out the house of "Totoy." For fi ve (5) minutes,accused-appellant stayed in the car. Thereafter, he gave in and took them to "Totoy's" house.

Doria knocked on the door of "Totoy's" h ouse but no one answered. One of the men, l ateridentified as P03 Manlangit, pushed open the door and he and his companions entered and

looked around the house for about three minutes. Accused-appellant Doria was left standingat the door. The policemen came out of the house and they saw Violeta G addao carrying



water from the well. He asked V ioleta where "Totoy" was but she replied he was not there.Curious onlookers and kibitzers were, by that time, surrounding them. When Violeta entered

her house, three men were already inside. Accused-appellant Doria, then still at the door,overheard one of the men say that they f ound a carton box. Turning towards them, Doria sawbox on top of the table. The box was open and had something inside. P03 Manlangit ordered

him and Violeta to go outside t he house and board the car. They were brought to policeheadquarters where they were investigated.

Accused-appellant Doria further declared that his co-accused, Violeta G addao, is the wife ofhis acquaintance, Totoy Gaddao. He said that he and Totoy Gaddao sometimes dranktogether at the neighborhood store. This closeness, however, did not extend to Violeta,

Totoy's wife. 11

Accused-appellant Violeta Gaddao, a 35-year old rice vendor, claimed that on December 5,

1995, she was at her house at Daang Bakal, Mandaluyong City where she lived with herhusband and five (5) children, namely, Arvy, aged 10, Arjay, aged 8, the twins Raymond andRaynan, aged 5, and Jason, aged 3. That day, accused-appellant woke up at 5:30 in the

morning and bought pan de sal f or her children's breakfast. Her husband, Totoy, ahousepainter, had left for Pangasinan five days earlier. She woke her children and bathedthem. Her eldest son, Arvy, left for school at 6:45 A.M. Ten minutes later, she carried her

youngest son, Jayson, and accompanied Arjay to school. She left the twins at home leavingthe door open. After seeing Arjay off, she and Jayson remained standing in fr ont of the schoolsoaking in the sun for about thirty minutes. Then they headed for home. A long the way, they

passed the artesian well to f etch water. She was pumping water when a man clad in shortpants and denim jacket suddenly appeared and grabbed her left wrist. The man pulled h erand took her to her house. She f ound out later that the man was P03 Manlangit.

Inside her house were her co-accused Doria and three (3) other persons. They asked herabout a box on top of the table. This was the first time sh e saw the box. The box was closed

and tied with a piece of green str aw. The men opened the box and sh owed her its contents.She said she did not know anything about the box and its contents.

Accused-appellant Violeta Gaddao confirmed that her co-accused Florencio Doria was afriend of her husband, and that her husband never r eturned to their house after he left forPangasinan. She denied the charge against her and Doria and the allegation that marked

bills were found in her person. 12

After trial, the Regional Trial Court, Branch 156, Pasig City convicted the accused-appellants.

The trial court found the exist ence of an "organized/syndicated crime group" and sentencedboth accused-appellants to death and pay a fine of P500,000.00 each. The dispositive portionof the decision reads as follows:

WHEREFORE, the guilt of accused, FLORENCIO DORIA y BOLADO @"Jun" and VIOLETA GADDAO y CATAMA @ "Neneth" having been

established beyond reasonable doubt, they are bothCONVICTED of the present charge against them.

According to the amendatory provisions of Sec. 13 of Republic Act No.7659 which cover violations of Sec. 4 of Republic Act No. 6425 and

which was exhaustively discussed in People v. Simon, 234 SCRA 555,the penalty imposable in this case is reclusion perpetua to death and a

fine ranging from five hundred thousand pesos t o ten million pesos.

Taking into consideration, however, the provisions of Sec. 23, also ofRepublic Act No. 7659 which explicitly state that:

The maximum penalty shall be imposed if theoffense was committed by any pers on who belongsto an organized/syndicated crime group.

An organized/syndicated crime group means agroup of two or more persons collaborating,

confederating or mutually helping one another forpurposes of gain in the commission of any crime.

the Court is hereby constrained to sentence (hereby sentences) saidFLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA GADDAO y

CATAMA @ "Neneth" to DEATH and to pay a fine of Five HundredThousand Pesos (P500,000.00) each without subsidiary imprisonment incase of insolvency and to pay the costs.

The confiscated marijuana bricks (7,641.08 grams) shall be turned overto the Dangerous Drugs Board, NBI for destructi on in accordance withlaw.

Let a Commitment Order be issued for the transfer of accused DORIAfrom the Mandaluyong City Jail to the New Bilibid Prisons, Muntinlupa

City and also for accused GADDAO for her transfer to the CorrectionalInstitute for Women, Mandaluyong City.

Let the entire records of this case be forwarded immediately to theSupreme Court for mandatory review.

SO ORDERED. 13

Before this Court, accused-appellant Doria assigns two errors, thus:

I



THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT TO THE

TESTIMONY OF THE WITNESSES FOR THE PROSECUTION WHEN

THEIR TESTIMONIES WERE SHOT WITH DISCREPANCIES,INCONSISTENCIES AND THAT THE CORPUS DELICTI OF THE

MARIJUANA ALLEGEDLY TAKEN FROM APPELLANT WAS NOT

POSITIVELY IDENTIFIED BY THE POSEUR-BUYER.

II

THE COURT A QUO GRAVELY ERRED IN ADMITTING AS EVIDENCE

THE MARIJUANA FRUITINGS FOUND INSIDE THE CARTON BOX AS

THESE WERE OBTAINED THROUGH A WARRANTLESS SEARCH AND DOES NOT COME WITHIN THE PLAIN VIEW DOCTRINE.

14

Accused-appellant Violeta Gaddao contends:

I

THE LOWER COURT ERRED IN FINDING APPELLANT GUILTYDESPITE THE INCREDIBILITY OF THE POLICE VERSION OF THE

MANNER THE ALLEGED BUY-BUST WAS CONDUCTED.

II

THE PNP OFFICERS' VERSIONS AS TO WHERE THE BUY-BUSTMONEY CAME FROM ARE INCONSISTENT WITH ONE ANOTHER

AND ALSO REEKS WITH INCREDIBILITY.

III

THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY ANDSENTENCING HER TO DEATH DESPITE THE MANIFESTLY

IRRECONCILABLE INCONSISTENCIES IN THE VERSIONS OF THEPOLICE AS TO HOW AND BY WHOM THE ALLEGED BUY-BUSTMONEY WAS RECOVERED FROM HER, WHICH IN CONSEQUENCE

RESULTS IN THE EVIDENCE, OF RETRIEVAL FROM HER OF THESAME, NEBULOUS, AT BEST, NIL, AT WORST.

IV

THE LOWER COURT ERRED IN UPHOLDING THE VALIDITY OF THE

WARRANTLESS SEARCH LEADING TO THE SEIZURE OF THE

MARIJUANA ALLEGEDLY FOUND INSIDE THE HOUSE OF ACCUSED-APPELLANT.

15

The assigned errors involve two principal issues: (1) the validity of the buy-bust operation inthe apprehension of accused-appellant Doria; and (2) the validity of the warrantless arrest of

accused-appellant Gaddao, the search of her person and house, and the admissibility of thepieces of evidence obtained therefrom.

Accused-appellants were caught by the police in a buy-bust operation. A buy-bust operationis a form of entrapment employed by peace officers as an effective way of apprehending acriminal in the act of the commission of an offense.

16 Entrapment has received judicial

sanction when undertaken with due regard to constitution al and legal safeguards. 17

Entrapment was unknown in common law. It is a judicially created twentieth-century

American doctrine that evolved from the increasing use of informers and undercover agentsin the detection of crimes, particularly liquor and narcotics offenses.

18 Entrapment sprouted

from the doctrine of estoppel and the public interest in the formulation and application of

decent standards in the enforcement of criminal law. 19

It also took off from a spontaneousmoral revulsion against using the powers of government to beguile innocent but ductilepersons into lapses that they might otherwise resist.

20

In the American jurisdiction, the term "entrapment" has a generally negative meaning

because it is understood as the inducement of one to commit a crime not contemplated byhim, for the mere purpose of instituting a criminal prosecution against him.

21 The classic

definition of entrapment is that articulated by Justice Roberts in Sorrells v. UnitedStates,

22 the first Supreme Court decision to acknowledge the concept: "Entrapment is the

conception and planning of an offense by an officer, and his procurement of its commissionby one who would not have perpetrated it except f or the trickery, percuasion or fr aud of theofficers."

23 It consists of two (2) elements: (a) acts of percuasion, trickery, or fraud carried out

by law enforcement officers or the agents t o induce a defendant to commit a crime; and (b)the origin of the criminal design in the minds of the government officials rather than that of theinnocent defendant, such that the crime is the product of the creative activity of the law

enforcement officer. 24

It is recognized that in every arrest, there is a certain amount of entrapment used to outwit

the persons violating or about to violate the law. Not every deception is forbidden. The type ofentrapment the law forbids is the inducing of another to violate the law, the "seduction" of anotherwise innocent person into a criminal career.

25Where the criminal intent originates

criminal in the mind of the entrapping person and the accused is lured into the commission ofthe offense charged in order to prosecute him, th ere is entrapment and no conviction may behad.

26 Where, however, the criminal intent originates in the mind of the accused and the

criminal offense is completed, the fact that a person acting as a decoy for the state, or publicofficials furnished the accused an opportunity f or commission of the of fense, or that theaccused is aided in the commission of the crime in order to secure the evidence necessary to

prosecute him, there is no entrapment and the accused must be convict ed. 27

The lawtolerates the use of decoys and other artifices to catch a criminal.



Entrapment is recognized as a valid defense 28

that can be raised by an accused andpartakes of the nature of a confession and avoidance.

29 It is a positive defense. Initially, an

accused has the burden of providing suff icient evidence that the government induced him t ocommit the offense. Once established, the burden shifts to the governmet to showotherwise.

30 When entrapment is raised as a defense, American federal courts and a majority

of state courts use the "subjective" or "origin of intent" test laid down in Sorrells v. UnitedStates

31 to determine whether entrapment actually occurred. The focus of the inquiry is on

the accused's predisposition to commit the offense charged, his state of mind and inclination

before his initial exposure to government agents.32

All relevant facts such as the accused'smental and character traits, his past offenses, activities, his eagerness in committing thecrime, his reputation, etc., are considered to assess his state of mind before the crime.

33 The

predisposition test emphasizes the accused's propensity to commit the offense rather thanthe officer's misconduct

34 and reflects an attempt to draw a line between a "trap for the

unwary innocent and the trap for the unwary cr iminal." 35

If the accused was found to have

been ready and willing to commit the offense at any favorable opportunity, the entrapmentdefense will fail even if a police agent used an unduly persuasive inducement.

36 Some

states, however, have adopted the "objective" test.37

This test was first authoritatively laiddown in the case of Grossman v. State 38 rendered by the Supreme Court of Alaska. Several

other states have subsequently adopted the test by judici al pronouncement or legislation.Here, the court considers the nature of the police activity involved and the propriety of police

conduct. 39

The inquiry is focused on the inducements used by government agents, on polic econduct, not on the accused and his predisposition to commit the crime. For the goal of thedefense is to deter unlawful police conduct.

40 The test of entrapment is whether the c onduct

of the law enforcement agent was likely to induce a normally law-abiding person, other than

one who is ready and willing, to commit the offense; 41

for purposes of this test, it is presumedthat a law-abiding person would normally resist the temptation to commit a crime that is

presented by the simple opportunity to act unlawfully.42

Official conduct that merely offerssuch an opportunity is permissible, but overbearing conduct, such as badgering, cajoling orimportuning,

43 or appeals to sentiments such as pity, sympathy, friendship or pleas of

desperate illness, are not. 44

Proponents of this test believe that courts must refuse to convictan entrapped accused not because his conduct f alls outside the legal norm but r atherbecause, even if his guilt h as been established, the methods employed on behalf of the

government to bring about the crime "c annot be countenanced." To some extent, this reflectsthe notion that the courts should not become t ainted by condoning law enforcementimproprieties.

45 Hence, the transactions leading up to th e offense, the interaction between

the accused and law enforcement officer and the accused's response to the officer'sinducements, the gravity of the crime, and the difficulty of detecting instances of itscommission are considered in judging what the effect of the officer's conduct would on a

normal person. 46

Both the "subjective" and "objective" approaches have been criticized and objected to. It isclaimed that the "subjective" test creates an "anything goes" rule, i .e, if the court determines

that an accused was predisposed to commit the crime charged, no level of police deceit,badgering or other unsavory practices will be deemed impermissible.

47 Delving into the

accused's character and predisposition obscures the more important task of judging policebehavior and prejudices the accused more generally. It ignores the possibility that no matterwhat his past crimes and general disposition were, the accused might not have committed

the particular crime unless confronted with inordinate inducements. 48

On the other extreme,

the purely "objective" test eliminates entirely the need for considering a particular accused'spredisposition. His predisposition, at least if known by the police, may have an important

bearing upon the question of whether the conduct of the polic e and and their agents wasproper.

49 The undisputed fact that the accused was a dangerous and chronic offender or that

he was a shrewd and active member of a criminal syndicate at the time of his arrest is

relegated to irrelevancy. 50

Objections to the two tests gave birth t o hybrid approaches to entrapment. Some st ates in theUnited States now combine both the "subjecti ve" and "objective" 51 In Cruz v. State, 52 the

Florida Supreme Court declared that the permissibility of police conduct must first bedetermined. If this objective test is satisfied, then the analysis turns to whether the accusedwas predisposed to commit the crime.

53 In Baca v. State,

54 the New Mexico Supreme Court

modified the state's entrapment analysis by holding that "a criminal defendant maysuccessfully assert a defense of entrapment, either by showing lack of predisposition to

commit the crime f or which he is charged, or, that the polic e exceeded the standards ofproper investigation.

55 The hybrid approaches combine and apply the "objective" and

"subjective" tests alternatively or concurrently.

As early as 1910, this Court has examined the conduct of law enforcers while apprehendingthe accused caught in flagrante delicto. In United States v. Phelps,

56 we acquitted the

accused from the offense of smoking opium after finding that the government employee, aBIR personnel, actually induced him to commit the crime in order to prosecute him. Smith, theBIR agent, testified that Phelps' apprehension came after he overheard Phelps in a s aloon

say that he liked smoking opium on some occasions. Smith's testimony was disregarded. Weaccorded significance to the fact that it was Smith who went to the accused three times toconvince him to look for an opium den where both of them could smoke this drug.

57 The

conduct of the BIR agent was condemned as "most reprehensible." 58

In People v. Abella,

59 we acquitted the accused of the crime of selling explosives after examining the

testimony of the apprehending police officer who pretended to be a merchant. The police

officer offered "a tempting price, . . . a very high one" causing the accused to sell theexplosives. We found that there was inducement, "direct, persistent and effective" by t hepolice officer and that outside of his t estimony, there was no evidence suff icient to convict theaccused.

60 In People v. Lua Chu and Uy Se Tieng ,

61 we convicted the accused after finding

that there was no inducement on the part of the l aw enforcement officer. W e stated that theCustoms secret serviceman smoothed the way for the introduction of opium from Hongkong

to Cebu after the accused had already planned its importation and ordered said drug. Weruled that the apprehending officer did not induce the accus ed to import opium but merelyentrapped him by pretending to have an understanding with the Col lector of Customs of Cebu

to better assure the seizure of the prohibited drug and the arrest of the surreptitious

importers. 62

It was also in the same case of People v. Lua Chu and Uy Se Tieng 63 we first laid down thedistinction between entrapment vis-a-vis instigation or inducement. Quoting 16 Corpus

Juris, 64

we held:



ENTRAPMENT AND INSTIGATION.— While it has been said that thepractice of entrapping persons into crime for the purpose of instituting

criminal prosecutions is to be deplored, and while instigation, asdistinguished from mere entrapment, has often been condemned andhas sometimes been held to prevent the act from being criminal or

punishable, the general rule is that it is no defense to the perpetrator of acrime that facilities for its commission were purposely placed in his way,or that the criminal act was done at the 'decoy solicitation' of persons

seeking to expose the criminal, or that detectives feigning complicity inthe act were present and apparently assisting in its commission.Especially is this true in that class of cases where the offense is one of a

kind habitually committed, and the solicitation merely furnishes evidenceof a course of conduct. Mere deception b y the detective will not shielddefendant, if the offense was committed by him, free from the influence

or instigation of the detective. Th e fact that an agent of an owner acts asa supposed confederate of a thief is no defense t o the latter in aprosecution for larceny, provided the original design was formed

independently of such agent; and where a person approached by thethief as his confederate notifies the owner or the public authorities, and,being authorised by them to do so, assists the thief in carrying out the

plan, the larceny is nevertheless committed. It is generally held that it isno defense to a prosecution for an ill egal sale of liquor th at the purchasewas made by a "spotter," detective, or hired informer; but there are cases

holding the contrary. 65

The distinction above-quoted was reiterated in t wo (2) decisions of the Court of Appeals.In People v. Galicia,

66the appellate court declared that "there is a wide difference between

entrapment and instigation." The instigator practically induces the would-be accused into thecommission of the offense and himself becomes a co-principal. In entrapment, ways and

means are resorted to by th e peace officer for the purpose of trapping and capturing thelawbreaker in the execution of his criminal plan.

67 In People v. Tan Tiong ,

68 the Court of

Appeals further declared that "entrapment is no bar to the prosecution and conviction of the

lawbreaker. 69

The pronouncement of the Court of Appeals in People v. Galicia was affirmed by this Court

in People v. Tiu Ua. 70

Entrapment, we further held, is not contrary to public policy. It is

instigation that is deemed contrary to public policy and illegal. 71

It can thus be seen that the concept of entrapment in the American jurisdiction is similar toinstigation or inducement in Philippine jurisprudence. Entrapment in the Philippines is not adefense available to the accused. It is instigation that is a defense and is considered an

absolutory cause. 72

To determine whether there is a entrapment or instigation, our courtshave mainly examined the conduct of the apprehending officers, not the predisposition of theaccused to commit the crime. The "objective" test first applied in United States v. Phelps has

been followed in a series of similar cases. 73

Nevertheless, adopting the "objective" approachhas not precluded us from likewise applying the "subjective" test. In People v. Boholst ,

74 we

applied both tests by examining the c onduct of the police officers in a buy-bust operation and

admitting evidence of the accused's membership with the notorious and dreaded Sigue-SigueSputnik Gang. We also considered accused's previous his convictions of other crimes

75 and

held that his opprobrious past and membership with the dreaded gang strengthened thestate's evidence against him. Conversely, the evidence that the accused did not sell orsmoke marijuana and did not have any criminal record was likewise admitted in People v.

Yutuc 76thereby sustaining his defense that led to his acquittal.

The distinction between entrapment and instigation has proven to be very material in anti-

narcotics operations. In recent years, it has become common practice for law enforcementofficers and agents to engage in buy-bust operations and other entrapment procedures inapprehending drug offenders. Anti-narcotics laws, like anti-gambling laws are regulatory

statutes. 77

They are rules of convenience designed to secure a more orderly regulation of theaffairs of society, and their violation gives rise to crimes mala prohibita.

78 They are not the

traditional type of criminal l aw such as the law of murder, r ape, theft, arson, etc. that deal withcrimes mala in se or those inherently wrongful and immoral.

79 Laws defining crimes mala

prohibita condemn behavior directed, not against particular individuals, but against public

order. 80

Violation is deemed a wrong against society as a whole and is generally unattended

with any particular harm to a d efinite person. 81

These offenses are carried on in s ecret andthe violators resort to many d evices and subterfuges to avoid detection. It is rare for anymember of the public, no matter how furiously he condemns acts mala prohibita, to be willing

to assist in the enforcement of the l aw. It is necessary, therefore, that government indetecting and punishing violations of these laws, r ely, not upon the voluntary action ofaggrieved individuals, but upon the diligence of its own officials. This means that the police

must be present at the time the offenses are committed either in an undercover capacity orthrough informants, spies or stool pigeons. 82

Though considered essential by the police in enforcing vice legislation, the confidentialinformant system breeds abominable abuse. Frequently, a person who accepts payment fromthe police in the apprehension of drug peddlers and gambl ers also accept payment from

these persons who deceive the police. The informant himself maybe a drug addict,pickpocket, pimp, or other petty criminal. For whatever noble purpose it serves, the spectaclethat government is secretly mated wit h the underworld and uses underworld characters t o

help maintain law and order is not an inspiring one. 83

Equally odious is the bitter reality ofdealing with unscrupulous, corrupt and exploitative l aw enforcers. Like the informant,unscrupulous law enforcers' motivations are legion — harassment, extortion, vengeance,

blackmail, or a desire to report an accomplishment to their superiors. This Court has taken judicial notice of this ugly reality in a number of cases

84 where we observed that it is a

common modus operandi of corrupt law enforcers to prey on weak and hapless persons,

particularly unsuspecting provincial hicks. 85

The use of shady underworld characters as

informants, the relative ease with which illegal drugs may be planted in the hands or propertyof trusting and ignorant persons, and the imposed secrecy that inevitably shrouds all drug

deals have compelled this Court to be extra-vigilant in deciding drug cases. 86

Criminal activityis such that stealth and strategy, although necessary weapons in the arsenal of the policeofficer, become as objectionable police methods as the coerced confession and the unlawfulsearch. As well put by the Supreme Court of California in People v. Barraza,

87



[E]ntrapment is a facet of a broader problem. Along with illegal searchand seizures, wiretapping, false arrest, i llegal detention and the third

degree, it is a type of lawless enforcement. They all spring from commonmotivations. Each is a substitute for skillful and scientific investigation.Each is condoned by the sinist er sophism that the end, when dealing

with known criminals of the 'criminal class,' justifies the employment ofillegal means. 88

It is thus imperative that the presumption, juris tantum, of regularity in the performance of

official duty by law enforcement agents raised by the Solicitor General be applied with studiedrestraint. This presumption should not by itself prevail over the presumption of innocence and

the constitutionally-protected rights of the individual. 89

It is the duty of courts to preserve thepurity of their own temple from the prostitution of the criminal law through lawlessenforcement.

90 Courts should not allow themselves to be used as an instrument of abuse

and injustice lest an innocent person be made to suffer the unusually severe penalties fordrug offenses.

91

We therefore stress that the "objective" test in buy-bust operations demands that the detailsof the purported transaction must be clearly and adequately shown. This must st art from theinitial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or

payment of the consideration until the consummation of the sale by the delivery of the illegaldrug subject of the sale.

92 The manner by which the initi al contact was made, whether or not

through an informant, the offer to purchase the drug, the p ayment of the "buy-bust" money,

and the delivery of the ill egal drug, whether to the informant alone or the police officer, mustbe the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfullyinduced to commit an offense. Criminals must be caught but not at all cost. At the same time,

however, examining the conduct of the polic e should not disable courts into ignoring t heaccused's predisposition to commit the crime. If there is overwhelming evidence of habitualdelinquency, recidivism or plain criminal proclivity, then this must also be considered. Courts

should look at all factors t o determine the predisposition of an accused to commit an offensein so far as they are r elevant to determine the validity of the defense ofinducement.1âwphi1.nêt

In the case at bar, the evidence shows that it was the confidential informant who initiallycontacted accused-appellant Doria. At the pre-arranged meeting, the informant was

accompanied by PO3 Manlangit who posed as the buyer of marijuana. P03 Manlangithanded the marked money to accused-appellant Doria as advance payment for one (1) kilo ofmarijuana. Accused-appellant Doria was apprehended when he later returned and handed

the brick of marijuana to P03 Manlangit.

PO3 Manlangit testified in a frank, spontaneous, straightforward and categorical manner and

his credibility was not crumpled on cross-examination by defense counsel. Moreover, P03Manlangit's testimony was corroborated on its material points by SPO1 Badua, his back-upsecurity. The non-presentation of the confidential informant is not fatal to the prosecution.

Informants are usually not presented in court because of the need to hide their identity andpreserve their invaluable service to the police.

93 It is well-settled that except when the

appellant vehemently denies selling prohibited drugs and there are material inconsistenciesin the testimonies of the arresting officers,

94 or there are reasons to believe that th e arresting

officers had motives to testify falsely against the appellant, 95

or that only the informant wasthe poseur-buyer who actually witnessed the entir e transaction,

96 the testimony of the

informant may be dispensed with as it will merely be corroborative of the apprehending

officers' eyewitness testimonies. 97

There is no need to present the i nformant in court wherethe sale was actually witnessed and adequately proved by prosecution witnesses.

98

The inconsistencies in P03 Manlangit's and SPO1 Badua's testimonies and the other policeofficers' testimonies are minor and do not detract from the veracity and weight of theprosecution evidence. The source of the money for the buy-bust operation is not a critical fact

in the case at bar. It is enough that the prosecution proved that money was paid t o accused-appellant Doria in consideration of which he sold and delivered the marijuana.

Contrary to accused-appellant Doria's claim, the one kilo of marijuana "sold" by him to PO3Manlangit was actually identified by PO3 Manlangit himself before the trial court. Afterappellants' apprehension, the Narcom agents placed this one (1) brick of marijuana

recovered from appellant Doria inside th e carton box lumping it together with t he ten (10)bricks inside. This is why the carton box contained eleven (11) bricks of marijuana whenbrought before the trial court. The one (1) br ick recovered from appellant Doria and each of

the ten (10) bricks, however, were identified and marked in court. Thus:

ATTY. ARIAS, Counsel for Florencio Doria:

Mr. Police Officer, when you identified that box,. Tellthe court, how were you able to identif y that box?

A This is the box that I brought to the crimelaboratory which contained the eleven pieces of

marijuana brick we confiscated from the suspect, sir.

Q Please open it and show those eleven bricks.

PROSECUTOR Witness bringing out from the saidbox. . .

ATTY. VALDEZ, Counsel for Violeta Gaddao:

Your Honor, I must protest the li ne of questioningconsidering the fact that we are now dealing witheleven items when the question posed to the

witness was what was handed to him by Jun?



COURT So be it.

ATTY. ARIAS May we make it of record that thewitness is pulling out them after item from the boxshowed to him and brought in front of him.

COURT Noted.

Q Now tell the court, how did you know that thoseare the eleven bricks?

xxx xxx xxx

A I have markings on these eleven bricks, sir.

Q Point to the court, where are those markings?

A Here, sir, my signature, my initials with the date,sir.

PROSECUTOR Witness showed a white wrapperand pointing to CLM and the signature.

Q Whose signature is that?

ATTY. VALDEZ Your Honor, may we just limit the

inquiry to the basic question of the f iscal as to whatwas handed to him by the accused Jun, your Honor?

PROSECUTOR Your Honor, there is already aruling by this Honorable Court, your Honor, despitereconsideration.

COURT Let the prosecution do its own thing and

leave the appreciation of what it has d one to thecourt.

ATTY. VALDEZ We submit, your Honor.

A This brick is the one that was handed to me by thesuspect Jun, sir.

COURT Why do you know that that is the thing? Areyou sure that is not "tikoy?"

A Yes, your Honor.

Q What makes you so sure?

A I am sure that this is the one, your Honor. This is

the Exhibit "A" which I marked before I brought it tothe PCCL, your Honor.

Q What are you sure of?

A I am sure that this is the brick that was given to

me by one alias Jun, sir.

Q What makes you so sure?

A Because I marked it with my own initials beforegiving it to the investigator and before we brought it

to the PCCL, your Honor.

xxx xxx xxx

PROSECUTOR May we request that a tag beplaced on this white plastic bag and this be marked

as Exhibit "D?"

COURT Mark it as Exhibit "D."

Q To stress, who made th e entries of this date,Exhibit "A" then the other letters and figures on this

plastic?

A This one, the signature, I made the signature, thedate and the time and this Exhibit "A."

Q How about this one?

A I don't know who made this marking, sir.



PROSECUTOR May it be of record that this was justentered this morning.

Q I am asking you about this "itim" and not the"asul."

A This CLM, the date and the time and the Exhibit

"A," I was the one who made these markings, sir.

PROSECUTOR May we place on record that theone that was enclosed. . .

ATTY. ARIAS Your Honor, there are also entriesincluded in that enclosure where it appears D -394-

95 also Exhibit "A," etc. etc., that was not pointed toby the witness. I want to make it of record that thereare other entries included in the enclosure.

COURT Noted. The court saw it.

Q Now, and this alleged brick of marijuana with a

piece of paper, with a newspaper wrapping with apiece of paper inside which reads: "D -394-95,

Exhibit A, 970 grams SSL" be marked as our Exhibit"D-2?"

COURT Tag it. Mark it.

Q This particular exhibit that you identified, the

wrapper and the contents was given to you bywhom?

A It was given to me by suspect Jun, sir.

Q Whereat?

A At the corner of Boulevard and Jacinto St., sir.

Q How about the other items that you were able torecover?

xxx xxx xxx

A These other marijuana bricks, because during ourfollow-up, because according to Jun the money

which I gave him was in the hands of Neneth and sowe proceeded to the house of Neneth, sir.

xxx xxx xxx 99

The first brick identified by P03 Manlangit was the brick of marijuana "given to [him] bysuspect Jun" at the corner of Boulevard and Jacinto Streets. This brick, including thenewspaper and white plastic wrapping were marked as Exhibits "D," "D-l," and "D-2" anddescribed as weighing nine hundred seventy (970) grams.

100

We also reject appellant's submission that the fact that P03 Manlangit and his team waitedfor almost one hour for appellant Doria to give them the one kilo of marijuana after he "paid"

P1,600.00 strains credulity. Appellant cannot capitalize on the circumstance that the moneyand the marijuana in the case at bar did not change hands under the usual "kal iwaan"system. There is no rule of law which requires that in "buy-bust" operations there must be a

simultaneous exchange of the marked money and the prohibited drug between the poseur-buyer and the pusher.

101 Again, the decisive fact is that the poseur-buyer received the

marijuana from the accused-appellant. 102

We also hold that the warrantless arrest of accused-appellant Doria is not unlawful.

Warrantless arrests are allowed in three instances as provided by Section 5 of Rule 113 ofthe 1985 Rules on Criminal Procedure, to wit:

Sec. 5. Arrest without warrant; when lawful. — A peace officer or a

private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is

actually committing, 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 pers on to be arrested hascommitted it; and

(c) When the person to be arrested is a prisoner who escaped from a

penal establishment or place where he is serving final judgment ortemporarily confined while his case is pending, or has escaped while

being transferred from one confinement to another.

xxx xxx xxx 103



Under Section 5 (a), as above-quoted, a person may be arrested without a warrantif he "has committed, is actually committing, or is attempting to commit an offense."

Appellant Doria was caught in the act of committing an offense. When an accusedis apprehended in flagrante delicto as a result of a buy-bust operation, the police

are not only authorized but duty-bound to arrest him even without a warrant. 104

The warrantless arrest of appellant Gaddao, the search of her person and residence, and theseizure of the box of marijuana and marked bills are different matters.

Our Constitution proscribes search and seizure without a judicial warrant and any evidenceobtained without such warrant is inadmissible for any purpose in any proceeding.

105 The rule

is, however, not absolute. Search and seizure may be made without a warrant and theevidence obtained therefrom may be admissible in the following instances:

106 (1) search

incident to a lawful arrest;107 (2) search of a moving motor vehicle; 108

(3) search in violation

of customs laws; 109

(4) seizure of evidence in plain view; 110

(5) when the accused himselfwaives his right against unreasonable searches and seizures.

111

The prosecution admits that appellant Gaddao was arrested without a warrant of arrest andthe search and seizure of the box of marijuana and the marked bills were likewise madewithout a search warrant. It is c laimed, however, that the warrants were not necessary

because the arrest was made in "hot pursuit" and the search was an incident to her lawfularrest.

To be lawful, the warrantless arrest of appellant Gaddao must fall under any of the three (3)instances enumerated in Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure asaforequoted. The direct testimony of PO3 Manlangit, the arresting officer, however shows

otherwise:

ATTY. VALDEZ, Counsel for appellant Gaddao:

We submit at this juncture, your Honor, that therewill be no basis for that question.

Q This particular exhibit that you identified, thewrapper and the contents was given to you by

whom?

A It was given to me by suspect Jun, sir.

Q Whereat?

A At the corner of Boulevard and Jacinto Street, sir.

Q How about, the other items that you were able torecover?

ATTY. VALDEZ: We submit at this juncture, yourHonor, that there will be no basis for that question.

COURT There is. Answer.

A These other marijuana bricks, because during ourfollow-up, because according to Jun the moneywhich I gave him was in the hands of Neneth and so

we proceeded to the house of Neneth, sir.

Q Whereat?

A At Daang Bakal near the crime scene at ShawBoulevard, sir.

Q And what happened upon arrival thereat?

A We saw alias Neneth inside the house and weasked him to give us the buy-bust money, sir.

Q You mentioned "him?"

A Her, sir. We asked her to give us the money, the

marked money which Jun gave her, sir.

Q And what happened?

A At this instance, it was SPO1 Badua who cantestify regarding this buy-bust money, sir.

xxx xxx xxx 112

SPO1 Badua testified on cross-examination that:

Q What was your intention in going to the house of

Aling Neneth?

A To arrest her, sir.



Q But the fact is, Mr . Witness, when you reached thehouse of Aling Neneth, Aling Neneth was there?

A Yes, sir.

Q As far as you can see, she was just inside herhouse?

A I saw her outside, sir.

Q She was fetching water as a matter of fact?

A She was 'sa bandang poso.'

Q Carrying a baby?

A No, sir.

Q At that particular time when you reached thehouse of Aling Neneth and saw her outside t he

house, she was not committing any crime, she was just outside the house?

A No, sir.

Q She was not about to commit any crime because

she was just outside the house doing her dailychores. Am I correct?

A I just saw her outside, sir.

Q And at that point in time you already wanted to

arrest her. That is correct, is it not?

A Yes, sir.

Q Now, if any memory of your testimony is correct,according to you SPO1 Manlangit approached her?

A PO3 Manlangit, sir.

Q You did not approach her because P03 Manlangitapproached her?

A Yes, sir.

Q During all the time that this confrontation, arrest orwhatever by SPO3 Manlangit was taking place, you

were just in the side lines?

A I was just watching, sir.

Q So you were just an on-looker to what Manlangitwas doing, because precisely according to you yourrole in this buy-bust operation was as a back-up?

A Yes, sir.

Q Who got the alleged mariju ana from inside thehouse of Mrs. Neneth?

A P03 Manlangit, sir.

Q Manlangit got the marijuana?

A Yes, sir.

Q And the money from Aling Neneth?

A I don't know, sir.

Q You did not even know who got the money from Aling Neneth?

PROSECUTOR:

There is no basis f or this question, your Honor.Money, there 's no testimony on that.

ATTY. VALDEZ:



I was asking him precisely.

PROSECUTOR:

No basis.

COURT:

Sustained.

Q Alright. I will ask you a question and I expect an

honest answer. According to the records, theamount of P1,600.00 was recovered from the personof Aling Neneth. That's right?

A Yes, sir, the buy-bust money.

Q What you are now saying for c ertain and for therecord is the fact that you were not the one whoretrieved the money from Aling Neneth, it was

Manlangit maybe?

A I saw it, sir.

Q It was Manlangit who got the money from AlingNeneth?

A The buy-bust money was recovered from thehouse of Aling Neneth, sir.

Q It was taken from the house of Aling Neneth, notfrom the person of Aling Neneth. Is that what you

are trying to tell the Court?

A No, sir.

ATTY. VALDEZ:

I am through with this witness, your Honor. 113

Accused-appellant Gaddao was not caught red-handed during the buy-bust operation to giveground for her arrest under Section 5 ( a) of Rule 113. She was not committing any crime.

Contrary to the finding of the trial c ourt, there was no occasion at all for appellant Gaddao toflee from the policemen to justify her arrest in "hot pursuit."

114 In fact, she was going about

her daily chores when the policemen pounced on her.

Neither could the arrest of appellant Gaddao be justif ied under the second instance of Rule113. "Personal knowledge" of facts in arrests without warrant under Section 5 ( b) of Rule 113

must be based upon "probable cause" which means an "actual belief or reasonable groundsof suspicion."

115 The grounds of suspicion are reasonable when, in the absence of actual

belief of the arresting officers, the suspic ion that the person to be arrested is probably guiltyof committing the offense, is based an actual facts, i .e., supported by circumstances

sufficiently strong in themselves to create the probable cause of guilt of the person to bearrested.

116 A reasonable suspicion therefore must be founded on probable cause, coupled

with good faith on the part of the peace officers making the arrest. 117

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 thatappellant Doria named his co-accused in response to his (PO3 Manlangit's) query as towhere the marked money was.

118 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. Thisidentification does not necessarily lead to the conclusion that appellant Gaddao conspiredwith her co-accused in pushing drugs. Appellant Doria may have left the money in her

house, 119

with or without her knowledge, with or without any conspiracy. Save for accused-appellant Doria 's word, the Narcom agents h ad no reasonable grounds to believe that shewas engaged in drug pushing. If there is no showing that the person who effected the

warrantless arrest had, in his own ri ght, knowledge of facts implicating the person arrested tothe perpetration of a criminal offense, the arrest is legally objectionable.

120

Since the warrantless arrest of accused-appellant Gaddao was illegal, it follows that thesearch of her person and home and the subsequent seizure of the marked bills andmarijuana cannot be deemed legal as an incident to her arrest. This bri ngs us to the question

of whether the trial court correctly found that the box of marijuana was in plain view, makingits warrantless seizure valid.

Objects falling in plain view of an officer who has a ri ght to be in the position to have t hat vieware subject to seizure even without a s earch warrant and maybe introduced inevidence.

121 The "plain view" doctrine applies when the following requisites concur: (a) the

law enforcement officer in search of the evidence has a prior justification for an intrusion or isin a position from which he can view a particular area; (b) the discovery of the evidence inplain view is inadvertent; (c) it is immediately apparent to the officer that the item he observes

may be evidence of a crime, contraband or otherwise subject to seizure. 122

The lawenforcement officer must lawfully make an initial intrusion or properly be in a position fromwhich he can particularly view the area.

123 In the course of such lawful intrusion, he came

inadvertently across a piece of evidence incriminating the accused. 124

The object must be



open to eye andhand

125 and its discovery inadvertent.

126

It is clear that an object is in plain view if the object itself is plainly exposed to sight. Thedifficulty arises when the object is inside a closed container. Where the object seized was

inside a closed package, the object itself is not in plain view and therefore cannot be seizedwithout a warrant. However, if the package proclaims its contents, whether by its distinctiveconfiguration, its transparency, or if its contents are obvious to an observer, then the contents

are in plain view and may be seized. 127 In other words, if the package is such that anexperienced observer could infer from its appearance that it contains the prohibited article,then the article is deemed in plain view.

128 It must be immediately apparent to the police that

the items that they observe may be evidence of a crime, contraband or otherwise subject toseizure.

129

PO3 Manlangit, the Narcom agent who found the box, testified on cross-examination asfollows:

ATTY. VALDEZ:

So here we are. When you and Badua arrived, Aling

Neneth was inside the house?

A Yes, sir.

Q Badua demanded from Aling Neneth the buy-bustmoney?

A Yes, sir.

Q At that particular instance, you saw the carton?

A Yes, sir.

Q This carton, according to you was under a table?

A Yes, sir, dining table.

Q I noticed that this carton has a cover?

A Yes, sir.

Q I ask you were the fl aps of the cover raised orclosed?

A It was open, sir. Not like that.

COURT

Go down there. Show to the court.

INTERPRETER

Witness went down the witness stand andapproached a carton box.

A Like this, sir.

PROSECUTOR

Can we describe it?

ATTY. VALDEZ

Yes.

PROSECUTOR

One flap is inside and th e other flap is standing andwith the contents visible.

COURT

Noted.

Q At this juncture, you went inside the house?

A Yes, sir.

Q And got hold of this carton?



A Yes, sir.

Q Did you mention anything to Aling Neneth?

A I asked her, what's this. . .

Q No, no. no. did you mention anything to AlingNeneth before getting the carton?

A I think it was Badua who accosted Aling Nenethregarding the buy-bust money and he asked "Sa iyo

galing ang marijuanang ito, nasaan ang buy-bustmoney namin?" sir.

Q Making reference to the marijuana that was givenby alias Jun?

A Yes, sir.

Q When you proceeded to take hold of this carton, Aling Neneth was not yet frisked, is it not [sic ]?

A I just don't know if she was frisked already by

Badua, sir.

Q Who got hold of this?

A I was the one, sir.

Q You were the one who got this?

A Yes, sir.

Q At that particular point in time, you did not know ifthe alleged buy-bust money was already retrieved

by Badua?

A Yes, sir.

Q You went inside the house?

A Yes, sir.

Q You did not have any search warrant?

A Yes, sir.

Q In fact, there was nothing yet as far as you wereconcerned to validate the fact that Mrs. Gadao was

in possession of the buy-bust money becauseaccording to you, you did not know whether Baduaalready retrieved the buy-bust money from her?

A Yes, sir.

Q How far was this from the door?

A Two and a half meters from the door, sir. It was in

plain view.

Q Under the table according to you?

A Yes, sir, dining table.

Q Somewhere here?

A It's far, sir.

PROSECUTOR

May we request the witness to plac e it, where hesaw it?

A Here, sir.

Q What you see is a carton?

A Yes, sir, with plastic.

Q Marked "Snow Time Ice Pop?



A Yes, sir.

Q With a piece of plastic visible on top of the carton?

A Yes, sir.

Q That is all that you saw?

A Yes, sir.

PROSECUTOR

For the record, your Honor. . .

Q You were only able to verify according to you . . .

PRESECUTOR

Panero, wait. Because I am objecting to the words apiece of plastic. By reading it . . .

ATTY. VALDEZ

That's a piece of plastic.

PROSECUTOR

By reading it, it will connote . . . this is not a piece ofplastic.

ATTY. VALDEZ

What is that? What can you say, Fiscal? I'm askingyou?

PROSECUTOR

With due respect, what I am saying is, let's place the

size of the plastic. A piece of plastic may be big or asmall one, for record purposes.

COURT

Leave that to the court.

PROSECUTOR

Leave that to the court.

Q The only reason according to you, you were ableto . . . Look at this, no even Superman . . . I withdrawthat. Not even a man with very kin [sic ] eyes can tell

the contents here. And according to the Court, i tcould be "tikoy," is it not [sic ]?

A Yes, sir.

Q Siopao?

A Yes, sir.

Q Canned goods?

A Yes, sir.

Q It could be ice cream because it says Snow Pop,Ice Pop?

A I presumed it was also marijuana because it may .. .

Q I am not asking you what your presumptions are.I'm asking you what it could possibly be.

A It's the same plastic, sir.

ATTY. VALDEZ

I'm not even asking you that questi on so why are

you voluntarily saying the information. Let theprosecutor do that for you.



COURT

Continue. Next question.

xxx xxx xxx130

P03 Manlangit and the police team were at appellant Gaddao's house because

they were led there by appellant Doria. T he Narcom agents testified that they hadno information on appellant Gaddao until appellant Doria name her and led them toher.

131 Standing by the door of appellant G addao's house, P03 Manlangit had a

view of the interior of said house. Two and a half meters away was t he dining table

and underneath it was a carton box. The box was partially open and revealedsomething wrapped in plastic.

In his direct examination, PO 3 Manlangit said that he was sure that the contents of the boxwere marijuana because he himself checked and marked the said contents.

132 On cross-

examination, however, he admitted that he merely presumed the contents to be mariju ana

because it had the same plastic wrapping as the "buy-bust marijuana." A close scrutiny of therecords reveals that the plastic wrapper was not colorless and transparent as to clearlymanifest its contents to a viewer. Each of the ten (10) bricks of marijuana in the box was

individually wrapped in old newspaper and placed inside plastic bags — white, pink or blue incolor.

133 PO3 Manlangit himself admitted on cross-examination that the contents of the box

could be items other than mari juana. He did not know exactly what the box contained that hehad to ask appellant Gaddao about its contents.

134 It was not immediately apparent to PO3

Manlangit that the content of the box was marijuana. The marijuana was not in plain view andits seizure without the requisite search warrant was in violation of the law and the

Constitution. 135

It was fruit of the poisonous tree and should have been excluded and neverconsidered by the trial court.

136

The fact that the box containing about six (6) kilos of marijuana 137

was found in the house ofaccused-appellant Gaddao does not justify a finding that she herself is guilty of the crimecharged.

138 Apropos is our ruling in People v. Aminnudin,

139 viz :

The Court strongly supports the camp aign of the government againstdrug addiction and commends the efforts of our law enforcement officers

against those who would inflict this malediction upon our people,especially the susceptible youth. But as demanding as this campaign

may be, it cannot be more so than the compulsions of the Bill of Rightsfor the protection of the liberty of every individual in the realm, includingthe basest of criminals. The Constitution covers with the mantle of itsprotection the innocent and the guilty alike against any manner of high-

handedness from the authorities, however praiseworthy their intentions.

Those who are supposed to enforce the law are not justified in

disregarding the right of the individual in the name of order. Order is too

high a price for the loss of liberty. As Justice Holmes, again, said, 'I thinkit a less evil that some criminals should escape than that the government

should play an ignoble part.' It is simply not allowed in the free society toviolate a law to enforce another, especially if the law violated is theConstitution itself. 140

Section 4 of Republic Act N o. 6425, the Dangerous Drugs Act of 1972, as amended bySection 13 of Republic Act No. 7659 punishes the "sale, administration, delivery, distribution

and transportation of a prohibited drug" with the penalty of reclusion perpetua to death and afine ranging from P500,000.00 to P10 million, to wit:

Sec. 4. Sale, Administration, Delivery, Distribution and Transportation ofProhibited Drugs.— The penalty of reclusion perpetua to death, and a

fine ranging from five hundred thousand pesos to ten million pesos shall

be imposed upon any person who, unless authorized by law, shall sell,administer, deliver, give away to another, distribute, dispatch in transit ortransport any prohibited drug, or shall act as a broker in any of such

transactions.

xxx xxx xxx

In every prosecution for illegal sale of dangerous drugs, what is material is the

submission of proof that the sale took place between the poseur-buyer and theseller thereof and the presentation of the drug, i .e., thecorpus delicti , as evidence in

court. 141

The prosecution has clearly established the fact that in consideration ofP1,600.00 which he received, accused-appellant Doria sold and delivered nine

hundred seventy (970) grams of marijuana to PO3 Manlangit, the poseur-buyer.The prosecution, however, has fail ed to prove that accused-appellant Gaddaoconspired with accused-appellant Doria i n the sale of said drug. Th ere being nomitigating or aggravating circumstances, the lower penalty of reclusion

perpetua must be imposed. 142

IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 156, Pasig City actingas a Special Court in Criminal Case No. 3307-D is reversed and modified as follows:

1. Accused-appellant Florencio Doria y Bolado is sentenced to suffer the penalty of reclusion perpetua and to pay a fine of five hundred thousand pesos (P 500,000.00).

2. Accused-appellant Violeta Gaddao y Catama is acquitted.

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, Martinez, Quisumbing,Purisima, Pardo, Buena and Gonzaga-Reyes, JJ., concur.



Panganiban, J., please see concurring opinion.

Separate Opinions

PANGANIBAN, J., concurring opinion;

I fully concur with the exhaustive and incisive ponencia of Mr. Justice Reynato S. Puno. This

Decision rightfully brings the Court back to well-settled doctrines on warrantless arrests andsearches, which have seemingly been modified through an obiter in People v. Ruben

Montilla. 1

I just wish to outlin e some guidelines on when an arrest or a search without a

warrant is valid. Hopefully, they would be of help, especially to our law enforcers who areoften faced with actual situations that promptly call for their application.

Valid Arrests

Without Warrants

Sec. 5 of Rule 113 of the Rules of Court lays down the basic rule on when an arrest without a

warrant is lawful. It states:

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 pers on to be arrested hascommitted it; and

(c) When the person to be arrested is a prisoner who escaped from apenal establishment or place where he is serving final judgment or

temporarily confined while his case is pending, or has escaped whilebeing transferred from one confinement to another.

xxx xxx xxx

I shall focus my discussion on the first two rules, which have been most frequently misappliedand misinterpreted, not only by law enforcers but some trial judges and lawyers as well.

At the very outset, I wish to underscore that in both cases the arresting officer must havepersonal knowledge of the fact of the commission of an offense. Under Secti on 5 (a), theofficer himself is a witness to the crime; under Section 5 (b), he knows for a fact that a crime

has just been committed. Let me elaborate.

1. In Flagrante

Delicto Arrests

Sec. 5 (a) is commonly referred to as the rule on in flagrante delicto arrests. 2 The accused is

apprehended at the very moment he is committing or attempting to commit or has justcommitted an offense in the presence of the arresting officer. There are two elements that

must concur: (1) the person to be arrested must execute an overt act indicating that he has

just committed, is actually committing, or is attempting to commit a crime; and (2) such overtact is done in the presence or within the view of the arresting officer.

3

It is not sufficient that the suspect exhibits unusual or strange acts or simply appearssuspicious. Thus, in the recent en banc case of Malicat v. Court of Appeals,

4 the Court,

through now Chief Justice Hilario G. D avide Jr., held that the fact t hat the appellant's eyeswere "moving very fast" and looking at every approaching person were not suff icient tosuspect him of "attempting to commit a crime," much less to justify his arrest and subsequent

search without a warrant. The Court said that "th ere was nothing in [Malacat's] behavior orconduct which could have reasonably elic ited even mere suspicion" that he was armed with adeadly weapon. In other words, there was no overt physic al act on the part of the suspect,

positively indicating that he had just committed a crime or was committing or attempting tocommit one. There was, therefore, no vali d reason for the police officers t o arrest or searchhim.

The same was true in People v. Mengote,

5

where the arresting police tri ed to justify thewarrantless arrest of the appellant on the ground that h e appeared suspicious. The

"suspicious" acts consisted of his darting eyes and the fact that his hand was over hisabdomen. The Court, rejecting such justification, stated: "By no stretch of the imaginationcould it have been inferred from these acts that an offense had just been committ ed, or was

actually being committed, or was at least being attempted in their presence. 6



In other words, the behavior or conduct of the person to be arrested must be clearly indicativeof a criminal act. If there is no outward indication at all that calls for an arrest, the suspect

cannot be validly apprehended under this paragraph, notwithstanding a tip from an informantthat he would at the time be undertaking a f elonious enterprise.

This doctrine found strength in People v. Aminnudin7 and again in People v. Encinada.

8 In

both cases, the appellants were arrested while disembarking from a ship, on account of a tipreceived from an informant that they were carrying prohibited drugs. The Court invalidated

their warrantless arrests, explaining that at the moment of their arrests , the appellants weresimply descending the gangplank, without manifesting any suspicious behavior that wouldreasonably invite the attention of the police. To all appearances, they were not committing a

crime; nor was it sh own that they were about to do so or had just done so. There was,therefore, no valid reason for their arrests.

Adhering to (and having faith in) the above rules, I respectfully disagreed with thedistinguished Mr. Justice Florenz D. Regalado in People v. Montilla,

9 when he upheld the

validity of the warrantless arrest of the appellant while the latter was merely alighting from a

passenger jeepney. I opined that Montilla could not have been perceived as committing acrime while merely alighting from a jeepney carrying a traveling bag and a carton. He did notexhibit any overt act or s trange conduct that would reasonably arouse in the m inds of the

police suspicion that he was embarking on a felonious undertaking. Th ere was no outwardmanifestation that he had just committed or was committing or attempting to commit anoffense. Mercifully, the statement of the C ourt that Montilla's arrest was valid because he was

caught in flagrante delicto was only an obiter, for what finally nailed him down was his impliedwaiver of any objection to the validity of his arrest.

2. "Hot Pursuit "

Arrests

Sec. 5 (b) is otherwise known as the rule on "hot pursuit" arrests. 10

Here, two elements mustalso concur prior to the arrest: (1) and "offense has in fact been committed," (2) the arresting

officer "has personal knowledge of facts indicating that the person to be arrested . . .committed [the offense]." In effecting this type of arrest, "it is n ot enough that there isreasonable ground to believe that the person to be arrested has committed a crime. A crime

must in fact or actually have been committed first. . . . The fact of the commission of theoffense must be undisputed.

11

Thus, while the law enforcers may not actually witness the execution of acts constituting theoffense, they must have direct knowledge or view of the crime right after its commission.They should know for a fact that a crime was committed. AND they must also perceive acts

exhibited by the person to be arrested, i ndicating that he perpetrated the crime. Again, mereintelligence information that the suspect committed the crime will not suffice. The arrestingofficers themselves must have personal knowledge of facts showing that the suspect

performed the criminal act. Personal knowledge means actual belief or reasonable grounds

of suspicion, based on actual facts, that th e person to be arrested is probably guilty ofcommitting the crime.

12

In several cases wherein third persons gave law enforcers information that certain individualsor groups were engaged in some felonious activities, such relayed information was notdeemed equivalent to personal knowledge of the lawmen. In People v. Burgos,

13 a certain

Masamlok informed police authorities that the appellant was involved in subversive activities. Acting on the strength of such information and without securing a judicial warrant, the police

proceeded to appellant's house to arrest him. There, they also allegedly recovered anunlicensed firearm and subversive materials.

The Court held that there was no personal knowledge on the part of the arresting officers,since the information came in its entirety from Masamlok, a civilian. We pointed out that at thetime of his arrest, appellant was not in actual possession of any firearm or subversive

document; neither was he committing a subversive act. 14

His warrantless arrest, therefore,could not be allowed under any of the instances in Rule 113, Section 6 (now 5) of the Rulesof Court.

Also in Encinada, the appellant was arrested without a warrant, on the j ustification that the

arresting officer "received an intelligence report that appellant who was carrying marijuana

would arrive the next morning aboard M/V Sweet Pearl." The Court categorically stated thatsuch "[r]aw intelligence information is not a sufficient ground for a warrantless arrest."

15 And

since, at the time of his arrest, no act or fact demonstrating a f elonious enterprise could be

ascribed to appellant, there was no valid justification for his arrest.

To be distinguished from the above cases are those involving continuing offenses for whichthe culprit could be arrested any time in flagrante delicto. In Umil v. Ramos,

16 there were

strong objections to the warrantless arrest of a suspected member of the New People's Army(NPA), while he was being treated f or a gunshot wound in a hospital. H e alleged that there

was no valid justification for his arrest without a warrant, because he was not then committingany offense nor were there any indications that he had just committed or was about tocommit one; he was in fact confined in a hospital.

The Court held that subversion, for which he was arrested and subsequently charged, was acontinuing offense. For purposes of arrest, the Cour t said, the NPA member "did not cease to

be, or became less of a subversive, . . . simply because he was, at the time of his arrest,confined in the . . . [hospital]." "Unlike other so-called 'common' offenses, i .e., adultery,

murder, arson, etc., which generally end upon their commission, subversion and rebellion are

anchored on an ideological base which compels the repetition of the same acts oflawlessness and violence until the overriding object of overthrowing organized government isattained.

17

In the above instances where the arrests without warrants were held unlawful, so were thesearches conducted subsequent thereto. Thus, the items seized consequent to the invalid

search, though clearly prohibited by law (e.g. marijuana or unlicensed firearm), were



considered inadmissable as evidence against the person wrongfully arrested. Important tobear in mind always is that any search conducted without a judicial warrant must be prcceded

by a lawful arrest, whether with or without a warrant duly issued therefor.

To underscore the rationale behind these strict rules, I deem it quite apt to quote theseinspiring words from the precedent-setting case of People v. Burgos:

18

The right of a person to be secure against any unreasonable seizure ofhis body and any deprivation of his liberty is a most basic andfundamental one. The statute or rule which allows exceptions to therequirement of warrants of arrest is strictly construed. Any exception

must clearly fall within the situations when securing a warrant would beabsurd or is manifestly unnecessary as provided by the Rule. We cannotliberally construe the rule on arrests without warrant or extend its

application beyond the cases specifically provided by law. To do sowould infringe upon personal liberty and set back a basic right so oftenviolated and so deserving of full protection.

Valid Searches

Without Warrant

The general rule is that a judicial warrant must first be duly obtained before search andseizure may be conducted. The only allowable instances in which a search may beconducted without a warrant are: (1) search i ncident to lawful arrest, (2) s earch pursuant tothe "plain view" doctrine, (3) search of moving vehicles, (4) searches incidental to violation of

customs laws, (5) search with consent, and (6) a "stop and frisk. 19

1. Search Incident

to Lawful Arrest

Section 12 of Rule 126 provides t hat a lawfully arrested person may be searched without awarrant for dangerous weapons or anything else that may be used as evidence of th eoffense. Such incidental search is, however, limited to the person of the arrestee at the time

of the apprehension. The search cannot be extended to or made in a place other than the

place of the arrest.

20

2. The "Plain View"

Doctrine

The "plain view" doctrine applies when the following requisites concur: (1) the lawenforcement officer is in a position where he has a clear view of a particular area or has prior

justification for an intrusion; (2) said officer inadvertently comes across ( or sees in plainview)a piece of incriminating evidence; and (3) it is immediately apparent to such officer that theitem he sees may be evidence of a crime or a contraband or is otherwise subject to

seizure. 21

3. Search of

Moving Vehicles

The warrantless search of moving vehicles (including shipping vessels and aircraft) is justifiedby practicability,viz .:

22

The guaranty of freedom from unreasonable searches and seizuresconstrued as recognizing a necessary difference between a search of adwelling house or other structure in respect of which a search warrant

may readily be obtained and a s earch of a ship, motorboat, wagon, orautomobile for contraband goods, where it is not practicable to secure awarrant, because the vehicle can be quickly moved out of the locality or

jurisdiction in which the warrant must be sought.

xxx xxx xxx

The automobile is a swift and powerful vehicle . . . C onstructed ascovered vehicles to standard form in immense quantities, and with a

capacity for speed rivaling express trains they furnish for successfulcommission of crime a distinguishing means of silent approach and swiftescape unknown in the history of the world before their advent. The

question of their police control and reasonable search on highways orother public place is a serious question far deeper and broader t han theiruse in so-called 'bootlegging' or 'rum running,' which in itself is no small

matter. While a possession in the sense of private ownership, they arebut a vehicle constructed for travel and transportation on highways. Theiractive use is not in homes or on private premises, the privacy of which

the law especially guards from search and seizure without process. Thebaffling extent to which they are successfully utilized to facilitate

commission of crime of all degrees, from those against morality, chastity,and decency to robbery, rape, burglary, and murder, is a matter ofcommon knowledge. Upon that problem, a condition, and not a theory,confronts proper administration of our criminal laws. Whether search of

and seizure from an automobile upon a highway or other public placewithout a search warrant is unreasonable is in its final analysis to bedetermined as a judicial question in view of all the circumstances under

which it is made.



4. Customs Searches

Under the Tariff and Customs Code, searches, seizures and arrests may be made evenwithout warrants, for purposes of enforcing customs and tariff laws. W ithout mention of theneed to priorly obtain a judicial warrant, the Code specifically allows police authorities to

"enter, pass through or search any l and, enclosure, warehouse, store or building, not being adwelling house; and also to inspect, search and examine any vessel or aircraft and any trunk,package, box or envelope or any person on board[;]or stop and search and examine any

vehicle, beast or person suspected of holding or conveying any dutiable or prohibited articleintroduced into the Philippines contrary to law.

23

5. Search With Consent

Waiver of any objection to the unresonableness or invalidity of a search is a recognized

exception to the rule against a warrantless search. 24

The consent to the search, however,must be express knowing and voluntary. A search based merely on implied acquiescene isnot valid, because such consent is not within the purview of the constitutional gurantee, but

only a passive conformity to the search given under intimidating and coercivecircumstances.

25

6. Stop and Frisk

The "stop and frisk" concept is of American origin, the most notable case thereon being Terryv. Ohio.

27 The idea is that a police officer may after properly introducing himself and making

initial inquiries, approach and restrain a person manifesting unusual and suspicious conduct,in order to check, the latter's outer clothing for possibly concealed weapons. The strict

manner in which this n otion should be applied has been laid down as f ollows: 28

. . . where a police officer observes unusual conduct which leads him

reasonably to conclude in the light of his experience that criminal activitymay be afoot and that the persons with whom he is dealing may bearmed and presently dangerous, where in the course of investigating this

behaviour, he identifies himself as a policeman and makes reasonableinquiries, and where nothing in the initi al stages of the encounter servesto dispel his reasonable fear f or his own and others' safety, he is entitled

for the protection of himself and others in the area to conduct a carefullylimited search of the outer clothing of such persons in an attempt to

discover weapons which might be used to assault him.

As in the warrantless arrest of a person reasonably suspected of having just committed acrime, mere suspicious behavior would not call for a "stop and frisk." There must be a

genuine reason, in accordance with the police officer's experience and the surroundingconditions, to warrant the belief that the p erson to be held has weapons (or contraband)concealed about him.

29

A valid application of the doctrine was recognized in Posadas v. Court of Appeals30

andin Manalili v. Court of Appeals.

31 In Manalili, the l aw enforcers who were members of the

Anti-Narcotics Unit of the Caloocan City Police, observed during their surveillance thatappellant had red eyes and was walking in a wobby manner along the city c emetery which,according to police information, was a popular hangout of drug addicts. Based on polic e

experience, such suspicious behaviour was characteristic of persons who were "high" ondrugs. The Court held that past experience and the surrounding circumstances gave thepolice sufficient reason to stop the sus pect and to investigate if he was really high on drugs.

The marijuana that they found in the suspect's possession was held to be admissible inevidence.

Before I end, I must reiterate that the above exceptions to the general rule on t he necessity ofa judicial warrant for any arrest, search and seizure must all be strictly construed. Foremostin our minds must still be every person's prized and fundamental right to liberty and security,

a right protected and guaranteed by our Constitution.

WHEREFORE, I vote to ACQUIT Appellant Violeta Gaddao y Catama, as well as toREDUCE the penalty of Appellant Florencio Doria y Bolado to reclusion perpetua and a fine

of P500,000.

Separate Opinions

PANGANIBAN, J., concurring opinion;

I fully concur with the exhaustive and incisive ponencia of Mr. Justice Reynato S. Puno. This

Decision rightfully brings the Court back to well-settled doctrines on warrantless arrests andsearches, which have seemingly been modified through an obiter in People v. RubenMontilla.

1 I just wish to outlin e some guidelines on when an arrest or a search without a

warrant is valid. Hopefully, they would be of help, especially to our l aw enforcers who are

often faced with actual situations that promptly call for their application.

Valid Arrests

Without Warrants

Sec. 5 of Rule 113 of the Rules of Court lays down the basic rule on when an arrest without a

warrant is lawful. It states:

Sec. 5. Arrest without warrant; when lawful. — A peace officer or aprivate person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, isactually committing, or is attempting to commit an offense;



(b) When an offense has in fact just been committed, and he haspersonal knowledge of facts indicating that the person to be arrested has

committed it; and

(c) When the person to be arrest ed is a prisoner who escaped from a

penal establishment or place where he is serving final judgment ortemporarily confined while his case is pending, or has escaped whilebeing transferred from one confinement to another.

xxx xxx xxx

I shall focus my discussion on the first two rules, which have been most frequently misappliedand misinterpreted, not only by law enforcers but some trial judges and lawyers as well.

At the very outset, I wish to underscore that in both cases the arresting officer must havepersonal knowledge of the fact of the commission of an offense. Under Secti on 5 (a), theofficer himself is a witness to the crime; under Section 5 (b), he knows for a fact that a crime

has just been committed. Let me elaborate.

1. In Flagrante

Delicto Arrests

Sec. 5 (a) is commonly referred to as the rule on in flagrante delicto arrests. 2 The accused is

apprehended at the very moment he is committing or attempting to commit or has justcommitted an offense in the presence of the arresting officer. There are two elements that

must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committi ng, or is attempting to commit a crime; and (2) such overtact is done in the presence or within the view of the arresting officer.

3

It is not sufficient that the suspect exhibits unusual or strange acts or simply appearssuspicious. Thus, in the recent en banc case of Malicat v. Court of Appeals,

4 the Court,

through now Chief Justice Hilario G. Davide Jr., held that the fact that the appellant's eyeswere "moving very fast" and looking at every approaching person were not sufficient tosuspect him of "attempting to commit a crime," much less to justify his arrest and subsequent

search without a warrant. The Court said that "t here was nothing in [Malacat's] behavior or

conduct which could have reasonably elicited even mere suspicion" that he was armed with adeadly weapon. In other words, there was no overt physical act on the part of the suspect,

positively indicating that he had just committed a crime or was committing or attempting tocommit one. There was, therefore, no valid reason for the police officers to arrest or searchhim.

The same was true in People v. Mengote, 5 where the arresting police tri ed to justify the

warrantless arrest of the appellant on the ground that he appeared suspicious. The

"suspicious" acts consisted of his darting eyes and the fact that his hand was over hisabdomen. The Court, rejecting such justification, stated: "By no stretch of the imagination

could it have been inferred from these acts that an offense had just been committ ed, or wasactually being committed, or was at least being attempted in their presence.

6

In other words, the behavior or conduct of the person to be arrested must be clearly indicativeof a criminal act. If there is no outward indication at all that calls for an arrest, the suspectcannot be validly apprehended under this paragraph, notwithstanding a tip from an informant

that he would at the time be undertaking a f elonious enterprise.

This doctrine found strength in People v. Aminnudin7 and again in People v. Encinada.

8 In

both cases, the appellants were arrested while disembarking from a ship, on account of a tipreceived from an informant that they were carrying prohibited drugs. The Court invalidatedtheir warrantless arrests, explaining that at the moment of their arrests, the appellants were

simply descending the gangplank, without manifesting any suspicious behavior that wouldreasonably invite the attention of the police. To all appearances, they were not committing acrime; nor was it shown that they were about to do so or had just d one so. There was,

therefore, no valid reason for their arrests.

Adhering to (and having faith in) the above rules, I respectfully disagreed with thedistinguished Mr. Justice Florenz D. Regalado in People v. Montilla,

9 when he upheld the

validity of the warrantless arrest of the appellant while the latter was merely alighting from apassenger jeepney. I opined that Montilla could not have been perceived as committing a

crime while merely alighting from a jeepney carrying a traveling bag and a carton. He did notexhibit any overt act or str ange conduct that would reasonably arouse in the min ds of thepolice suspicion that he was embarkin g on a felonious undertaking. There was no outward

manifestation that he had just committed or was committing or attempting to commit anoffense. Mercifully, the statement of the Court that Montilla's arrest was vali d because he wascaught in flagrante delicto was only an obiter, for what finally nailed him down was his implied

waiver of any objection to the validity of his arrest.

2. "Hot Pursuit "

Arrests

Sec. 5 (b) is otherwise known as the rule on "hot pursuit" arrests. 10

Here, two elements mustalso concur prior to the arrest: (1) and "offense has in fact been committed," (2) the arresting

officer "has personal knowledge of facts indic ating that the person to be arrested . . .committed [the offense]." In effecting this type of arrest, "it is not enough that there isreasonable ground to believe that the person to be arrested has committed a crime. A crimemust in fact or actually have been committed first. . . . The fact of the commission of the

offense must be undisputed. 11

Thus, while the law enforcers may not actually witness the execution of acts constituting the

offense, they must have direct knowledge or view of the crime right after its commission.



They should know for a fact that a crime was committed. AND they must also perceive actsexhibited by the person to be arrested, i ndicating that he perpetrated the crime. Again, mere

intelligence information that the suspect committed the crime will not suffice. The arrestingofficers themselves must have personal knowledge of facts showing that the suspectperformed the criminal act. Personal knowledge means actual belief or reasonable grounds

of suspicion, based on actual f acts, that the person to be arrested is probably guilty ofcommitting the crime.

12

In several cases wherein third persons gave law enforcers information that certain individualsor groups were engaged in some felonious activities, such relayed information was notdeemed equivalent to personal knowledge of the l awmen. In People v. Burgos,

13 a certain

Masamlok informed police authorities that the appellant was involved in subversive activities. Acting on the strength of such information and without securing a judicial warrant, the policeproceeded to appellant's house to arrest him. T here, they also allegedly recovered an

unlicensed firearm and subversive materials.

The Court held that there was no personal kn owledge on the part of the arresting officers,

since the information came in its entirety from Masamlok, a civilian. We pointed out that at thetime of his arrest, appellant was not in actual possession of any firearm or subversivedocument; neither was he committing a subversive act.

14 His warrantless arrest, therefore,

could not be allowed under any of the inst ances in Rule 113, Section 6 (now 5) of the Rulesof Court.

Also in Encinada, the appellant was arrested without a warrant, on the justification that thearresting officer "received an intelligence report that appellant who was carrying marijuanawould arrive the next morning aboard M/V Sweet Pearl." The Court categorically stated that

such "[r]aw intelligence information is not a sufficient ground for a warrantless arrest." 15

Andsince, at the time of his arrest, no act or fact demonstrating a felonious enterprise could beascribed to appellant, there was no valid justification for his arrest.

To be distinguished from the above cases are those involving continuing offenses for whichthe culprit could be arrested any time in flagrante delicto. In Umil v. Ramos,

16 there were

strong objections to the warrantless arrest of a suspected member of the New People's Army(NPA), while he was being tr eated for a gunshot wound in a hospital. He alleged that therewas no valid justification for his arrest without a warrant, because he was not then committing

any offense nor were there any indications that he had just committed or was about tocommit one; he was in fact confined in a hospital.

The Court held that subversion, for which he was arrested and subsequently charged, was acontinuing offense. For purposes of arrest, the Court s aid, the NPA member "did not cease tobe, or became less of a subversive, . . . simply because he was, at the time of his arrest,confined in the . . . [hospital]." "Unlike other so-called 'common' offenses, i .e., adultery,

murder, arson, etc., which generally end upon their commission, subversion and rebellion areanchored on an ideological base which c ompels the repetition of the same acts of

lawlessness and violence until the overriding object of overthrowing organized government isattained.

17

In the above instances where the arrests without warrants were held unlawful, so were thesearches conducted subsequent thereto. Thus, the items seized consequent to the invalid

search, though clearly prohibited by law (e.g. marijuana or unlicensed firearm), wereconsidered inadmissable as evidence against the person wrongfully arrested. Important tobear in mind always is t hat any search conducted without a judicial warrant must be prcceded

by a lawful arrest, whether with or without a warrant duly issued therefor.

To underscore the rationale behind these strict ru les, I deem it quite apt to quote these

inspiring words from the precedent-setting case of People v. Burgos: 18

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 andfundamental one. The statute or rule which allows exceptions to therequirement of warrants of arrest is strictly construed. Any exception

must clearly fall within the situations when securing a warrant would beabsurd or is manifestly unnecessary as provided by the Rule. We cannotliberally construe the rule on arrests without warrant or extend its

application beyond the cases specifically provided by law. To do sowould infringe upon personal liberty and set back a basic right s o oftenviolated and so deserving of full protection.

Valid Searches

Without Warrant

The general rule is that a judicial warrant must first be duly obtained before search and

seizure may be conducted. The only allowable instances in which a search may beconducted without a warrant are: (1) search incident to lawful arrest, ( 2) search pursuant tothe "plain view" doctrine, (3) search of moving vehicles, (4) searches incidental to violation of

customs laws, (5) search with consent, and (6) a "stop and frisk. 19

1. Search Incident

to Lawful Arrest

Section 12 of Rule 126 provides th at a lawfully arrested person may be searched without a

warrant for dangerous weapons or anything else that may be used as evidence of theoffense. Such incidental search is, however, limited to the person of the arrest ee at the time

of the apprehension. The search cannot be extended to or made in a place other than theplace of the arrest.

20

2. The "Plain View"



Doctrine

The "plain view" doctrine applies when the following requisites concur: (1) the lawenforcement officer is in a position where he has a clear view of a particular area or has prior

justification for an intrusion; (2) said officer inadvertently comes across (or sees in plainview)

a piece of incriminating evidence; and (3) it is immediately apparent to such officer that theitem he sees may be evidence of a crime or a contraband or is otherwise subject toseizure.

21

3. Search of

Moving Vehicles

The warrantless search of moving vehicles (including shipping vessels and aircraft) is justifiedby practicability,viz .:

22

The guaranty of freedom from unreasonable searches and seizures

construed as recognizing a necessary difference between a search of adwelling house or other structure in r espect of which a search warrantmay readily be obtained and a search of a ship, motorboat, wagon, or

automobile for contraband goods, where it is not practicable to secure awarrant, because the vehicle can be quickly moved out of the locality or

jurisdiction in which the warrant must be sought.

xxx xxx xxx

The automobile is a swift and powerful vehicle . . . Constructed ascovered vehicles to standard form in immense quantities, and with acapacity for speed rivaling express trains they furnish for successful

commission of crime a distinguishing means of silent approach and swiftescape unknown in the history of the world before their advent. Thequestion of their police control and reasonable search on highways or

other public place is a s erious question far deeper and broader than theiruse in so-called 'bootlegging' or 'rum running,' which in itself is no smallmatter. While a possession in the sense of private ownership, they are

but a vehicle constructed for travel and transportation on highways. Theiractive use is not in homes or on private premises, the privacy of which

the law especially guards from search and seizure without process. Thebaffling extent to which they are successfully utilized to facilitatecommission of crime of all degrees, from those against morality, chastity,and decency to robbery, rape, burglary, and murder, is a matter of

common knowledge. Upon that problem, a conditi on, and not a theory,confronts proper administration of our criminal laws. Whether search ofand seizure from an automobile upon a highway or other public place

without a search warrant is unreasonable is in its final analysis to be

determined as a judicial question in view of all the circumstances underwhich it is made.

4. Customs Searches

Under the Tariff and Customs Code, searches, seizures and arrests may b e made evenwithout warrants, for purposes of enforcing customs and tariff laws. W ithout mention of the

need to priorly obtain a judicial warrant, the Code specifically allows police authorities to"enter, pass through or search any land, enclosure, warehouse, store or building, not being adwelling house; and also to inspect, search and examine any vessel or aircraft and any trunk,package, box or envelope or any person on b oard[;]or stop and search and examine any

vehicle, beast or person suspected of holding or conveying any dutiable or prohibited articleintroduced into the Philippines contrary to law.

23

5. Search With Consent

Waiver of any objection to the unresonableness or invalidity of a search is a recognized

exception to the rule against a warrantless s earch. 24

The consent to the search, however,must be express knowing and voluntary. A search based merely on implied acquiescene isnot valid, because such consent is not within the purview of the constituti onal gurantee, but

only a passive conformity to the search given under intimidating and coercivecircumstances.

25

6. Stop and Frisk

The "stop and frisk" concept is of American origin, the most notable case thereon being Terry

v. Ohio. 27

The idea is that a police officer may after properly introducing himself and making

initial inquiries, approach and restrain a person manifesting unusual and suspicious conduct,in order to check, the latter's outer clothing for possibly concealed weapons. The strict

manner in which this notion should b e applied has been laid down as follows: 28

. . . where a police officer observes unusual conduct which leads him

reasonably to conclude in the light of his experience that criminal activitymay be afoot and that the persons with whom he is dealing may bearmed and presently dangerous, where in the course of investigating this

behaviour, he identifies himself as a policeman and makes reasonableinquiries, and where nothing in the initial stages of the encounter serves

to dispel his reasonable fear f or his own and others' safety, he is entitledfor the protection of himself and others in the area to conduct a carefullylimited search of the outer clothing of such persons in an attempt todiscover weapons which might be used to assault him.

As in the warrantless arrest of a person reasonably suspected of having just committed acrime, mere suspicious behavior would not call for a "stop and frisk." There must be a



genuine reason, in accordance with the police officer's experience and the surroundingconditions, to warrant the belief that the p erson to be held has weapons (or contraband)

concealed about him. 29

A valid application of the doctrine was recognized in Posadas v. Court of Appeals30

and

in Manalili v. Court of Appeals. 31

In Manalili, the l aw enforcers who were members of the

Anti-Narcotics Unit of the Caloocan City Police, observed during their surveillance thatappellant had red eyes and was walking in a wobby manner along the city c emetery which,

according to police information, was a popular hangout of drug addicts. Based on p oliceexperience, such suspicious behaviour was characteristic of persons who were "high" ondrugs. The Court held that past experience and the surrounding circumstances gave the

police sufficient reason to stop the suspect and to investigate if he was really high on drugs.The marijuana that they found in the suspect's possession was held to be admissible inevidence.

Before I end, I must reiterate that the above exceptions to the general rule on the necessity ofa judicial warrant for any arrest, search and seizure must all be strictly construed. Foremost

in our minds must still be every person's prized and fundamental right to liberty and security,a right protected and guaranteed by our Constituti on.1âwphi1.nêt

WHEREFORE, I vote to ACQUIT Appellant Violeta Gaddao y Catama, as well as toREDUCE the penalty of Appellant Florencio Doria y Bolado to reclusion perpetua and a fine

of P500,000.



PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,

- versus -

JESUSA FIGUEROA y CORONADO,

Accused-Appellant.

G.R. No. 186141

Present:

LEONARDO-DE CASTRO,

Acting Chairperson,

BERSAMIN,

DEL CASTILLO, and

VILLARAMA, JR.,

REYES,* JJ.

Promulgated:

April 11, 2012

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

D E C I S I O N

LEONARDO-DE CASTRO, J.:



This is an appeal from the Decision[1] of the Court of Appeals in CA-G.R. C.R.-H.C. No.

02348 dated October 25, 2007 affirming the conviction of accused-appellant Jesusa Figueroa in

Criminal Case No. 04-2433 for violation of Section 26, Article II of Republic Act No. 9165.

There were originally two Informations filed against accused-appellant:

Criminal Case No. 04-2432

That on or about the 2nd day of July 2004, in the City of Makati, Philippines, and within

the jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized by

law, did then and there willfully, unlawfully and feloniously have in her possession, direct custody and

control a total weight of nine point fourty [sic] two (9.42) grams of Methylamphetamine

Hydrochloride (shabu) which is a dangerous drug, in violation of the above-cited law.[2]

Criminal Case No. 04-2433

That on or about the 2nd day of July 2004, in the City of Makati, Philippines, and within

the jurisdiction of this Honorable Court, the above-named accused, without the corresponding license

or prescription, did then and there willfully, unlawfully and feloniously attempt to sell, give away,

distribute and deliver four point sixty (4.60) grams of Methylamphetamine Hydrochloride (shabu)

which is a dangerous drug, by then and there agreeing to sell and deliver the said dangerous drug to the

proposed buyer PO3 JOSEFINO CALLORA, thereby commencing the commission of t he crime o f

sale of dangerous drugs, but which nevertheless failed to consummate the said sale by reason of causes

other than her own spontaneous desistance, that is she got frightened by the presence of police officers

at the scene of the crime.[3]

Accused-appellant pleaded not guilty to the crimes charged. Thereafter, the Regional Trial

Court (RTC), Branch 64 of Makati City proceeded with the trial of the aforementioned charges. The

versions of the prosecution and the defense of what transpired on July 2, 2004, as concisely

summarized by the Court of Appeals, were as follows:

Version of the Prosecution



In the evening of June 20, 2004, an informant came to the office of P/Supt. Nelson T. Yabut

(P/SUPT. YABUT), Chief of the Special Operation Unit 1 of PNP Anti-Illegal Drugs Special

Operations Task Force (PNP AIDSOTF) at Camp Crame, Quezon City and informed him of the drug

pushing activities of a certain Baby, later identified as accused-appellant FIGUEROA. P/SUPT.

YABUT instructed PS/Insp. Pepito Garcia (PS/INSP. GARCIA), PO3 Josefino Callora (PO3

CALLORA) and PO2 Rogie Pinili (PO2 PINILI) to conduct discreet surveillance operation to verify

the information.

On June 23, 2004, at about 8:00 p.m., PO3 CALLORA, together with the informant, met

with accused-appellant FIGUEROA at the parking area of SM Bicutan in Taguig, Metro Manila. The

informant introduced PO3 CALLORA to accused-appellant FIGUEROA as the one who was willing to

regularly buy shabu from her should her sample be of good quality. Accused-appellant FIGUEROA,

however, told them that she had no stock of shabu at that time, but she promised to inform PO3

CALLORA through the informant once she already has supply of good quality shabu.

In the morning of the following day, the Special Operation Unit 1 of the PNP AIDSOTF

requested the PNP Crime Laboratory to dust with ultra-violet powder the two (2) pieces of P500.00

bills with serial numbers FG403794 and MY883243 to be used in the planned buy-bust operation

against accused-appellant FIGUEROA.

On July 2, 2004, at about 12:00 noon, the informant called the Desk Officer of the Special

Operation Unit 1 of PNP AIDSOTF, who in turn relayed to P/SUPT. YABUT that accused-appellant

FIGUEROA had informed him that she already had a stock of good quality shabu and asked how much

shabu would be bought by PO3 CALLORA. P/SUPT YABUT instructed the informant to tell accused-

appellant FIGUEROA that P10,000.00 worth of shabu would be bought from her. Later on the same

day, the informant made another telephone call and relayed the information that accused-appellant

FIGUEROA had agreed to deliver the shabu worth [P10,000.00] in front of the 7-Eleven Convenience

Store at the corner of M. Almeda and M. Conception Avenues, San Joaquin, Pasig City at about 4:00

p.m. of that day.

A team, composed of P/SUPT. YABUT, PS/INSP. GARCIA, PO2 PINILI and PO3

CALLORA, was then formed to conduct the buy-bust operation, with PO3 CALLORA designated as

the poseur-buyer. The buy-bust money was prepared. The genuine two (2) pieces of P500.00 bills were

placed on top of boodle money to make them appear as P10,00 0.00.



At about 4:00 p.m. of July 2, 2004, the team proceeded to the agreed meeting place. PO3

CALLORA arrived in the vicinity of 7-Eleven on board a car driven by PS/INSP. GARCIA and met

with the informant. PO3 CALLORA and the informant waited for accused-appellant FIGUEROA, who

after a few minutes, arrived driving a Toyota Revo with Plate No. XPN 433. Seeing the two, accused-

appellant FIGUEROA waived at them and drove towards them. Stopping near them, accused-appellant

FIGUEROA rolled down the window of her car and asked where the money was. On the other hand,

PO3 CALLORA asked for the shabu. At that juncture, accused-appellant FIGUEROA opened a

Chowking plastic bag and showed a plastic sachet containing white crystalline substance. When PO3

CALLORA was about to hand over the buy-bust money to accused-appellant FIGUEROA, the latter

sensed the presence of police officers in the area, so she sped away towards the direction of Kalayaan

Avenue and C-5 road. The other occupants of the car were Susan Samson y Figueroa, sister-in-law of

the accused, Margie Sampayan y Garbo, Fe Salceda y Resma and Christian Salceda y Resma, a nine[-

]year[-]old boy.

PO3 CALLORA immediately boarded the car being driven by PS/INSP. GARCIA and

gave chase. PO2 PINILI, who was driving another vehicle, joined the chase.

Accused-appellant FIGUEROAs vehicle was finally blocked at Kalayaan Avenue near the

intersection of C-5 road. At that time, PS/INSP. GARCIA saw Christian Salceda y Resma alighted

from the backdoor of the Toyota Revo and threw the Chowking plastic bag to the pavement, which

was about two steps from the backdoor. PS/INSP. GARCIA picked it up and saw a heat sealed

transparent plastic sachet containing white crystalline substance inside. PO3 CALLORA and PO2

PINILI introduced themselves as police officers. The Toyota Revo was checked by PS/INSP.

GARCIA and PO2 PINILI, which was witnessed by PO1 Alvarado and PO3 Basa of the Makati Police

PCP No. 7, MMDA Traffic Enforcers Gonzales and Salvador and a reporter/press photographer of

Manila Star named Eduardo Rosales. Retrieved under the floor matting of the Toyota Revo were two

heat sealed transparent plastic sachets of undetermined quantity of white crystalline substance.

Accused-appellant FIGUEROA was informed of her violation and was apprised of her

constitutional rights. She was brought to the office of Special Operation Unit 1 of PNP AIDSOTF for

investigation. The items recovered from the crime scene were brought to the PNP Crime Laboratory,

where they were tested positive for Methylamphetamine Hydrochloride.

Version of the Defense



Accused-appellant FIGUEROA denied that she met and transacted with PO3 CALLORA

regarding the sale of shabu. She likewise denied knowledge of the plastic sachets of shabu that were

recovered under the floor matting of the car she was driving as well as the plastic sachet of shabu

inside a Chowking plastic bag found on the pavement of Kalayaan Avenue corner C-5 road.

She alleged that between 1:00 and 2:00 p.m. of July 2, 2004, she was driving a Toyota

Revo with Plate No. XPN 433 on her way to the house of her elder brother at Eco Center, Barangay

Calsada, Taguig City to get their mothers allowance. Their mother stays with her at her residence at

Better Living Subdivision, Paraaque City. With her as passengers were Susan Samson y Figueroa, Fe

Salceda y Resma, and the latters nine[-]year[-]old son, Christian Salceda y Resma, and Margie

Sampayan y Garbo, accused-appellant FIGUEROAs laundrywoman. They stayed at her brothers house

for about twenty (20) minutes.

From her brothers house, she proceeded to Tejeron, Sta. Ana, Manila to bring Susan

Samson y Figueroa to the latters house. The other passengers remained in the car. Accused-appellant

FIGUEROA then continued driving, taking the C-5-Kalayaan Avenue route. When she was about to

proceed after the traffic light turned gr een at the junction of Kalayaan Avenu e, a navy blue car blocked

her path. P/SUPT YABUT alighted from said car and was shouting that he was a police officer while

approaching accused-appellant FIGUEROA. He ordered accused-appellant FIGUEROA to roll down

her car window. Accused then asked, Bakit po mister? P/SUPT YABUT reiterated that he was a police

officer and ordered accused-appellant FIGUEROA to get down from her car as they would be

searching the same.

Accused-appellant FIGUEROA and her companions were made to stay at the sidewalk for

about thirty (30) minutes. They were asked to turn their backs and were told not to do anything while

the search was going on. P/SUPT. YABUT later said, Aantayin muna natin sila. For another thirty

minutes, they stayed at the sidewalk until other persons referred to by P/SUPT. YABUT arrived at the

scene.

After the search, accused-appellant FIGUEROA and her companions were ordered to board

the same Toyota Revo, which was driven to Camp Crame by one of the persons who arrived at the

scene.[4]



On May 18, 2006, the RTC rendered its Decision[5] acquitting accused-appellant in

Criminal Case No. 04-2432, but convicting her in Criminal Case No. 04-2433. The dispositive portion

of the Decision states:

WHEREFORE, in view of the foregoing[,] judgment is rendered as follows:

1. In Criminal Case No. 04-2432[,] the accused Jesusa Figueroa y Coronado is

ACQUITTED of the charge for violation of Sec. 11, Art. II RA No. 9165 for lack of evidence. The two

plastic sachets of containing Methylamph etamine Hydrochlorid e or shabu with a combined weight of

9.42 grams are forfeited in favor of the Government. Let the custody thereof be turned over to the

Philippine Drug Enforcement Agency (PDEA) for its appropriate disposition.

2. In Criminal Case No. 04-2433, the accused Jesusa Figueroa y Coronado alias Baby is

found guilty beyond reasonable doubt of the offense of violation of Sec. 26, Art. II, RA 9165 and is

sentenced to suffer life imprisonment and to pay a fine of Five Hundred Thousand (P500,000.00).

Let the one plastic bag labeled Chowking containing one (1) heat sealed plastic sachet with

4.60 grams of Methylamphetamine Hydrochloride be turned over to the PDEA for its appropriate

disposition.

The period during which the accused is detained at the City Jail of Makati shall be

considered in her favor pursuant to existing rules.[6]

Alleging that the foregoing decision was contrary to law and unsupported by the

evidentiary records, accused-appellant sought a review of the same with this Court through a Notice of

Appeal, which the RTC gave due course. However, in accordance with our ruling in People v.

Mateo,[7] we remanded the case to the Court of Appeals for intermediate review.

On October 25, 2007, the Court of Appeals issued the assailed Decision affirming the

conviction of accused-appellant. The dispositive portion of the Decision states:



WHEREFORE, premises considered, appeal is hereby DISMISSED and the assailed

Decision, dated May 18, 2006, in Criminal Case Nos. 04-2432 and 04-2433, of the Regional Trial

Court of Makati City, Branch 64, is hereby AFFIRMED.

Pursuant to Section 13 (c), Rule 124 of the 2000 Rules of Criminal Procedure as amended

by A.M. No. 00-5-03-SC dated Septemb er 28, 2004, which became effective on October 15, 2004 , this

judgment of the Court of Appeals may be appeale d to the Supreme Court by notice of appeal filed with

the Clerk of Court of the Court of Appeals.[8]

Accused-appellant appealed to this Court anew. Accused-appellant filed a Supplemental

Brief,[9] wherein she highlighted the fact that the Court of Appeals did not discuss the first error

assigned in her Brief with said appellate court. In the aforementioned Brief[10] with the Court of

Appeals, accused-appellant submitted the following assignment of errors:

First

THE TRIAL COURT ERRED IN NOT HOLDING THAT THE ALLEGED BUY-BUST

OPERATION CONDUCTED BY THE SPECIAL OPERATION UNIT 1 OF THE PHILIPPINE

NATIONAL POLICE ANTI-ILLEGAL DRUGS SPECIAL OPERATIONS TASK FORCE WAS

IRREGULAR BECAUSE OF LACK OF PRIOR COORDINATION WITH THE PHILIPPINE

DRUG ENFORCEMENT AGENCY (PDEA).

Second

THE TRIAL COURT SERIOUSLY ERRED IN HOLDING THAT THERE WAS A

PRIOR AGREEMENT BETWEEN PO3 JOSEFINO CALLORA AND ACCUSED REGARDING

THE ALLEGED SALE OF SHABU.

Third

THE TRIAL COURT SERIOUSLY ERRED IN GIVING WEIGHT AND CREDENCE

TO THE CONFLICTING AND CONTRADICTORY TESTIMONIES OF PO3 JOSEFINO

CALLORA AND P/INSP. PEPITO GARCIA THAT HAVE DIRECT BEARING ON THE

ELEMENTS OF THE OFFENSE CHARGED.



Fourth

THE TRIAL COURT SERIOUSLY ERRED IN FINDING ACCUSED GUILTY OF THE

OFFENSE OF ATTEMPT TO SELL SHABU AS PROVIDED UNDER SECTION 26, ART. II OF

R.A. 9165.[11]

Lack of Prior Coordination with the PDEA

In both the Appellants Brief with the Court of Appeals and accused-appellants

Supplemental Brief before this Court, the main defense proffered by accused-appellant was the alleged

violation of Section 86[12] of Republic Act No. 9165, requiring that the Philippine National Police

(PNP) maintain close coordination with the Philippine Drug Enforcement Agency (PDEA) on all drug

related matters.

Accused-appellants contention is unmeritorious. It is settled that Section 86 of Republic Act

No. 9165 does not i nvalidate operation s on acc ount of the the law enforcers failure to maintain close

coordination with the PDEA. Thus, in People v. Berdadero,[13] the Court noted that Section 86, as

well as the Internal Rules and Regulations implementing the same, is silent as to the consequences of

the failure on the part of the law enforcers to seek the authority of the PDEA prior to conducting a buy-

bust operation. This Court consequently held that this silence [cannot] be inter preted as a legislative

intent to make an arrest without the participation of PDEA illegal or evidence obtained pursuant to

such an arrest inadmissible.[14] The same conclusion was reached by this Court in People v. Roa,[15]

People v. Mantalaba[16] and People v. Sabadlab.[17]

Alleged lack of prior agreement between accused-appellant and PO3 Callora.

Accused-appellant argues that the alleged sale transaction borne out by the evidence of the

prosecution was not between Police Officer 3 (PO3) Josefino Callora and accused -appellant Figueroa,

but was instead between the latter and the unnamed informant. Accused-appellant concludes that the

testimony of PO3 Callora regarding the alleged sale transaction is purely hearsay, and therefore



inadmissible and without probative value, as it was the informant which is competent to testify on the

alleged agreement to sell drugs.[18]

We disagree. Under the doctrine of independently relevant statements, we have held that

the hearsay rule does not apply where only the fact that such statements were made is relevant, and the

truth or falsity thereof is immaterial.[19] In the case at bar, the testimony of PO3 Callora as regards the

conversations between the informant and accused-appellant is admissible insofar as it established that

said information led the police officers to prepare for and proceed with the buy-bust operation. The

conversation between the informant and the accused-appellant was not necessary to prove the

attempted sale of shabu, as said attempt to sell was already clear from accused-appellants actuations on

July 2, 2004, which were all within the personal knowledge of PO3 Callora and testified to by him, to

wit: (1) when accused-appellant arrived at the scene, she waived at the informant and PO3 Callora and

approached them while driving her Toyota Revo;[20] (2) upon reaching PO3 Callora and the

informant, accused-appellant asked PO3 Callora where the money was, while the latter asked for the

shabu;[21] (3) accused-appellant showed PO3 Callora a Chowking plastic bag containing a sachet of

white crystalline substance;[22] (4) when PO3 Callora was about to give her the money, accused-

appellant sensed that there were police officers around the area, and drove away;[23] (5) PO3 Callora

and the informant boarded the car of PS/Insp. Garcia, and they chased her to C-5 Road corner

Kalayaan Avenue.[24]

Under the Revised Penal Code, there is an attempt to commit a crime when the offender

commences its commission directly by overt acts but does not perform all the acts of execution which

should produce the felony by reason of some cause or accident other than his own spontaneous

desistance.[25] This definition has essentially been adopted by this Court in interpreting Section 26 of

Republic Act No. 9165. Thus in People v. Laylo,[26] we affirmed the conviction of the appellant

therein and held that the attempt to sell shabu was shown by the overt act of appellant therein of

showing the substance to the poseur-buyer. In said case, the sale was aborted when the police officers

identified themselves and placed appellant under arrest.

The identity of the white crystalline substance was furthermore established by the

testimony of PS/Insp. Garcia, who likewise testified as to the following matters based on his own

personal knowledge: (1) after the chase, PS/Insp. Garcia saw a boy (later identified as Christian

Salceda) alight from the vehicle and threw a Chowking plastic bag two to three meters from the

vehicle;[27] (2) PS/Insp. Garcia picked up the Chowking plastic bag from the sidewalk ad found a

sachet of shabu inside the same;[28] (3) PS/Insp. Garcia later proceeded with the other police officers



to their office, where they requested for a laboratory examination of the white crystalline

substance;[29] PS/Insp. Garcia identified the Chowking plastic bag and the sachet containing white

crystalline substance in court. He identified the mark PEG-1 on the sachet as his initial and testified

that he was the one who marked the same.[30]

The prosecution presented as its Exhibit B an Initial Laboratory Report. The report states

that the heat-sealed transparent plastic bag with the marking PEG-1 inside a Chowking plastic bag was

found to contain 4.60 grams of white crystalline substance. The latter specimen was found positive for

methylamphetamine hydrochloride.[31]

In light of the foregoing testimonial and documentary evidence, which were found credible

by both the trial court and the Court of App eals, the cri me of att empt to sell a dangerous drug under

Section 26 of Republic Act No. 9165 was sufficiently proven beyond reasonable doubt.

As for the purported inconsistencies in the testimonies of the prosecution witnesses, we

agree with the pronouncement of the Court of Appeals that discrepancies referring to minor details,

and not in actuality touching upon the central fact of the crime, do not impair [the witnesses]

credibility[32] nor do they overcome the presumption that the arresting officers have regularly

performed their official duties.[33]

In sum, this Court finds no cogent reason to disturb the rulings of the lower courts in the

instant case.

WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals in CA-G.R.

CR.-H.C. No. 02348 dated October 25, 2007 affirming the conviction of accused-appellant Jesusa

Figueroa in Criminal Case No. 04-2433 for violation of Section 26, Article II of Republic Act No.

9165 is hereby AFFIRMED.

SO ORDERED.



SECOND DIVISION

G.R. No. 193768, March 05, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff – Appellee, v . JERRY CARANTO YPROPETA, Accused – Appellant.

D E C I S I O N

PEREZ, J.:

On appeal is the 28 July 2010 Decision1 of the Court of Appeals (CA) in CA–G.R.C.R.–H.C. No. 01680. The CA affirmed the 7 October 2005 Decision of the

Regional Trial Court (RTC), Branch 267, Pasig City, that found Jerry Caranto yPropeta (Jerry) guilty beyond reasonable doubt of violation of Section 5, Article II

of Republic Act (R.A.) No. 9165 (The Comprehensive Dangerous Drugs Act of2002) and imposed upon him the penalty of life imprisonment.

Jerry was charged under the criminal information,2 which

reads:chanRoblesvirtualLawlibrary

That, on or about the 24th day of July 2002, in the Municipality of Taguig, Metro

Manila, Philippines and within the jurisdiction of this Honorable Court, the above–named accused, without having been authorized by law, did, then and therewillfully, unlawfully and knowingly sell, deliver and give away to another one (1)heat sealed transparent sachet containing 0.39 gram of white crystallinesubstance, which was found positive to the test of Methylamphetamine (sic)Hydrochloride also known as “shabu”, a dangerous drug, in consideration of the

amount of PhP 500.00, in violation of [Section 5, Article II, Republic Act No. 9165(The Comprehensive Dangerous Drugs Act of 2002].

The Facts

The antecedent facts were culled from the records of the case, particularly the

Appellee’s Brief 3 for the version of the prosecution and the Appellant’s Brief 4 forthe version of the defense.

Version of the Prosecution

On 24 July 2002, PO2 Danilo Arago (PO2 Arago) was inside the office of the DrugEnforcement Unit (DEU) of the Philippine National Police (PNP) in Taguig Citywhen his informant approached him and reported that there was widespreadselling of methamphetamine hydrochloride (shabu) by a certain Jojo at thelatter’s residence at No. 13 Santos Street, Barangay Calzada, Tipas, Taguig City.

PO2 Arago immediately reported the information to his superior, P/Supt. RamonRamirez (P/Supt. Ramirez), who in turn organized a “buy–bust” operation toapprehend Jerry.

Inside P/Supt. Ramirez’ office, PO2 Arago, along with the informant, PO3 Angelito

Galang, SPO3 Arnuldo Vicuna, PO3 Santiago Cordova, PO2 Archie Baltijero andPO1 Alexander Saez, discussed the conduct of the “buy–bust” operation.

The team agreed that the informant would accompany the team to Jerry’s

residence where PO2 Arago would act as the poseur buyer while the rest of theteam would serve as his back up. P/Supt. Ramirez thereafter provided the “buy–

bust” money of five hundred pesos (P500.00), which PO2 Arago marked with hisinitials, “DBA.”

At around 12:00 in the afternoon of the same day, the team proceeded to Jerry’s

residence. Upon nearing the area, the informant and PO2 Arago separated fromthe rest of the team. They walked ahead of their companions and proceeded

towards Jerry’s residence while the rest of the team hid in a corner some six toseven meters away from the two.

When they were about 10 to 20 meters when they got near him, from the house,

the informant pointed PO2 Arago to Jerry and the informant introduced PO2Arago to Jerry as a balikbayan who was looking for some shabu.

Jerry then asked them how much worth of shabu they planned to buy, to which

informant answered Five Hundred Pesos (P500.00) worth. PO2 Arago thenhanded Jerry the marked money.

Upon receiving the money, Jerry went inside his house and after around thirty(30) seconds to one (1) minute, he returned and handed PO2 Arago a plasticsachet, which PO2 Arago suspected to beshabu.

After the completion of the transaction, Jerry noticed the informant and PO2

Arago’s companions moving in from behind the two. Jerry immediately tried toflee but was stopped by PO2 Arago.

Seeing the scuffle between PO2 Arago and Jerry, the rest of the “buy–bust” team

rushed towards them. After Jerry was subdued, PO2 Arago recovered the marked



money inside Jerry’s right pocket. Thereafter, the team introduced themselves as

police officers, informed Jerry of his constitutional rights in Filipino and thenreturned to their station in Taguig City where Jerry was duly investigated.

Version of the Defense

Recalling what transpired on 24 July 2002, Jerry said that he went through hisroute as a tricycle driver from 6:00 a.m. until he went home around 12:00 in the

afternoon to have lunch. He was at the rooftop of their house feeding the dogwhen policemen arrived looking for his father Cesar Caranto. The policemen

kicked the door and forced it open. They held Jerry and told him that they wouldhave to bring him in unless they get his father. Jerry told the policemen that hewas not aware of his father’s whereabouts because his father did not live withthem anymore. The policemen frisked him and took his wallet. He was brought to

the DEU and was thereafter hit by P/Supt. Ramirez on the chest. He denied thathe sold any shabu.

The mother of Jerry, Teresita Propeta Caranto (Teresita), testified that on that

date, she was at the Baclaran church attending mass when her daughter calledand told her that her son Jerry was taken from their house and invited by

policemen. She hurriedly went to the police station and cried when her son toldher that the policemen mauled him. The policemen also asked money from her,

but she did not give them anything as her son is innocent. Upon learning that her

son’s case was non–bailable, she went back to the police station and utteredinvectives against the policemen who arrested her son.

More than a month after the incident or on 28 August 2002, Teresita, togetherwith her son Christopher Caranto, her daughter Cynthia Caranto, and a

housemaid, were arrested in Baclaran. A drug related case was also filed againstthem. They were incarcerated for about two years but they were eventually

acquitted. Teresita filed a case against the policemen who arrested them and isalso planning to file a case against the law officers who arrested her son Jerry.

At the pre–trial, the parties stipulated:5 1) that a request has been made by thearresting officers for examination of the specimens confiscated; 2) that theforensic chemist P/Insp. Lourdeliza Gural (P/Insp. Gural) examined thespecimens submitted and thereafter issued her initial and final laboratory report;3) that P/Insp. Gural has no personal knowledge from whom the alleged

specimens were taken and that the test conducted on the alleged specimenyielded positive to metamphetamine hydrochloride. After stipulations were made,

the public prosecutor dispensed with the testimony of P/Insp. Gural. Thereafter,trial on the merits ensued.

The RTC Decision

On 7 October 2005, the RTC found Jerry guilty of the offense charged andimposed upon him the penalty of life imprisonment. The dispositive portion of theRTC decision is as follows:chanRoblesvirtualLawlibrary

WHEREFORE, in view of the foregoing considerations, the prosecution having

proven the guilt of the accused beyond reasonable doubt, this Court acting as aSpecial Drug Court in the above–captioned case hereby finds JERRY CARANTO y

PROPETA a.k.a. ‘Jojo’, accused in Criminal Case No. 11539–D, GUILTY as chargedand is hereby sentenced to suffer LIFE IMPRISONMENT and to pay a fine of

FIVE HUNDRED THOUSAND PESOS (PhP 500,000.00).

x x x x

Moreover, the shabu contained in one (1) heat sealed transparent plastic sachetcontaining 0.39 gram of shabu which is the subject matter of the above–

captioned case is ordered to be immediately transmitted and/or submitted to thecustody of the Philippine Drug Enforcement Agency (PDEA) for its proper

disposition.6

The CA Decision

The CA, in its assailed decision, affirmed the judgement of conviction by the RTC.

The appellate court ruled that Jerry’s guilt was proven beyond reasonable doubt.The dispositive portion of the decision reads:chanRoblesvirtualLawlibrary

WHEREFORE, premises considered, the instant appeal is hereby DISMISSED. The

assailed Decision of the Regional Trial Court of Pasig City, Branch 267, subject ofthe appeal is AFFIRMED in toto.7

In a Resolution8 dated 22 November 2010, we required the parties to file their

respective supplemental briefs. The prosecution manifested that it was no longerfiling any supplemental brief.9The issues raised in appellant’s supplementalbrief 10 were similar to those previously raised to the appellate court. Theappellant raises the following assignment of errors:chanRoblesvirtualLawlibrary

I.

THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THE ACCUSED–APPELLANT’S SEARCH AND ARREST AS ILLEGAL.

II.

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED–APPELLANT



OF THE CRIME CHARGED DESPITE THE FAILURE OF THE PROSECUTION TO

PROVE HIS GUILT BEYOND REASONABLE DOUBT.11

Ruling of this Court

It should be noted that the significant issues, as discussed below, were initiallyraised by Jerry in his Memorandum12 filed with the RTC. Unfortunately, the RTC

failed to discuss the issues raised when it rendered its 7 October 2005 decision.

On the other hand, the Brief for Jerry filed with the CA was wanting of saidpertinent issues. In effect, the CA, likewise, failed to include in its discussion saidissues. Upon appeal, the Supplemental Brief for Jerry filed with this Court once

again raised and expounded on said issues. Given the foregoing circumstancesand in the interest of justice, this Court gives due consideration to the issues

raised in Jerry’s Supplemental Brief. The Court refuses to turn a blind eye on theimportance of the rights of the accused. For this reason, we consider the requiredprocedure for the timely raising of issues, substantially complied with.

Jerry was arrested during a buy–bust operation conducted on 24 July 2002 bythe members of the DEU of the Taguig PNP. A buy–bust operation is a form of

entrapment employed by peace officers to apprehend prohibited drug lawviolators in the act of committing a drug–related offense.13 We agree with the

appellate court when it opined that:chanRoblesvirtualLawlibrary

x x x [T]here is no rigid or textbook method of conducting buy–bust operations.The choice of effective ways to apprehend drug dealers is within the ambit ofpolice authority. Police officers have the expertise to determine which specific

approaches are necessary to enforce their entrapment operations.14

The built–in danger for abuse that a buy–bust operation carries cannot bedenied. It is essential therefore, that these operations be governed by specific

procedures on the seizure and custody of drugs. We had occasion to express thisconcern in People v. Tan,15 when we recognized that “by the very nature of anti–

narcotic operations, the need for entrapment procedures, the use of shadycharacters as informants, the ease with which illegal drugs can be planted in thepockets or hands of unsuspecting provincial hicks, and the secrecy that inevitablyshrouds all drug deals, the possibility of abuse is great. Thus, the courts havebeen exhorted to be extra vigilant in trying drug cases lest an innocent person ismade to suffer the unusually severe penalties for drug offenses.” 16

Moreover, we have time and again recognized that a buy–bust operation

resulting from the tip of an anonymous confidential informant, although aneffective means of eliminating illegal drug related activities, is “susceptible to

police abuse.” Worse, it is usually used as a means for extortion.17 It is for thisreason, that the Court must ensure that the enactment of R.A. No. 9165

providing specific procedures to counter these abuses is not put to naught.18

Non–compliance with the requirements

of Section 21, par. 1 of Article II ofR.A. No. 9165

The required procedure on the seizure and custody of drugs is embodied inSection 21, paragraph 1, Article II of R.A. No. 9165, whichstates:chanRoblesvirtualLawlibrary

1) The apprehending team having initial custody and control of the drugs shall,immediately after seizure and confiscation, physically inventory and

photograph the same in the presence of the accused or the person/sfrom whom such items were confiscated and/or seized, or his/herrepresentative or counsel, a representative from the media and the Departmentof Justice (DOJ), and any elected public official who shall be required to sign the

copies of the inventory and be given a copy thereof. (Emphasis supplied)

This is implemented by Section 21(a), Article II of the Implementing Rules andRegulations of R.A. No. 9165, which reads:chanRoblesvirtualLawlibrary

(a) The apprehending officer/team having initial custody and control of the drugsshall, immediately after seizure and confiscation, physically inventory andphotograph the same in the presence of the accused or the person/s from whomsuch items were confiscated and/or seized, or his/her representative or counsel,

a representative from the media and the Department of Justice (DOJ), and anyelected public official who shall be required to sign the copies of the inventory

and be given a copy thereof: x x xProvided, further, that non–compliance withthese requirements under justifiable grounds, as long as the integrity and the

evidentiary value of the seized items are properly preserved by the apprehendingofficer/team, shall not render void and invalid such seizures of and custody over

said items. (Emphasis supplied)

This Court recognizes that the strict compliance with the requirements of Section21 of R.A. No. 9165 may not always be possible under field conditions, many ofthem far from ideal. For this reason, the Implementing Rules provide that non–compliance with the strict directive of Section 21 is not necessarily fatal to the

prosecution’s case because courts recognize the possible occurrence ofprocedural lapses. However, we emphasize that these lapses must be recognized

and explained in terms of their justifiable grounds and the integrity and

evidentiary value of the evidence seized must be shown to have beenpreserved.19 In the present case, the prosecution did not bother to present anyexplanation to justify the non–observance of the prescribed procedures.

Therefore, the non–observance by the police of the required procedure cannot beexcused. It likewise failed to prove that the integrity and evidentiary value of the

items adduced were not tainted.



Chain of Custody

To secure a conviction for the illegal sale of shabu, the following elements mustbe present: (a) the identities of the buyer and seller, the object of the sale, andthe consideration; and (b) the delivery of the thing sold and the payment for thething. It is material to establish that the transaction actually took place, and tobring to the court the corpus delicti as evidence.20 In the prosecution of a drug

case, the primary consideration is to ensure that the identity and integrity of the

seized drugs and other related articles have been preserved from the time theywere confiscated from the accused until their presentation as evidence in court.21

The chain of custody requirement ensures that doubts concerning the identity ofthe evidence are removed. In a long line of cases, we have considered it fatal for

the prosecution when they fail to prove that the specimen submitted forlaboratory examination was the same one allegedly seized from the accused. Thecase of Malillin v. People22 is particularly instructive on how we expect the chainof custody to be maintained. As a method of authenticating evidence, the chain

of custody rule requires that the admission of an exhibit be preceded by evidencesufficient to support a finding that the matter in question is what the proponent

claims to be. It would include testimony about every link in the chain, from themoment the item was picked up to the time it is offered into evidence, in such a

way that every person who touched the exhibit would describe how and fromwhom it was received, where it was and what happened to it while in the witness’

possession, the condition in which it was received and the condition in which itwas delivered to the next link in the chain. These witnesses would then describe

the precautions taken to ensure that there had been no change in the conditionof the item and no opportunity for someone not in the chain to have possessionof the same.23 An unbroken chain of custody becomes indispensable and essentialwhen the item of real evidence is susceptible to alteration, tampering,

contamination and even substitution and exchange.24

The “chain of custody” rule requires that the “marking” of the seized items – totruly ensure that they are the same items that enter the chain and are eventually

the ones offered in evidence – should be done (1) in the presence of theapprehended violator (2) immediately upon confiscation. This step initiates the

process of protecting innocent persons from dubious and concoctedsearches.25 “Marking” means the placing by the apprehending officer orthe poseur –buyer of his/her initials and signature on the item/s seized.

This Court previously held26 that the following links must be established in thechain of custody in a buy–bust operation: first, the seizure and marking, if

practicable, of the illegal drug recovered from the accused by the apprehendingofficer; second, the turnover of the illegal drug seized by the apprehending

officer to the investigating officer; third, the turnover by the investigating officerof the illegal drug to the forensic chemist for laboratory examination; and fourth,

the turnover and submission of the marked illegal drug seized from the forensic

chemist to the court.

A perusal of the records will show that the procedure of preserving the chain ofcustody as laid down by jurisprudence27 was not observed. This is evident fromthe testimonies of the witnesses for the prosecution. Prosecution witness PO3Angelito Galang testified on how the seized item was handled, towit:chanRoblesvirtualLawlibrary

PROSEC.BAUTISTA:

At the time you proceeded to the area, what did you observe?

A: I saw the buy–bust money recovered by PO3 Arago and the

plastic sachet he bought was placed in his wallet, sir.<SUPSTYLE="COLOR: RGB(255, 0, 0);” >[28]</SUP>

PO3 Santiago Cordova, on the other hand, testified in thiswise:chanRoblesvirtualLawlibrary

PROSEC.

BAUTISTA:

So you assisted Arago in arresting this accused?

A: Yes sir.

PROSEC.

BAUTISTA:

What did Arago did with the stuff, which was taken?

A: He kept it and brought to the office.

PROSEC.

BAUTISTA:

Before keeping, did Arago do something with the stuff?

A: I saw him holding the specimen and he put the specimeninside his pocket.

PROSEC.

BAUTISTA:

He did not do anything with the stuff?

A: I did not notice other things he did with the specimen.

PROSEC.BAUTISTA: You did not see what happened afterwards?

A: I did not notice because I am busy holding alias Jojo,because he is resisting.

PROSEC.

BAUTISTA:

And what did Arago do with the stuff?

ATTY. HERRERA: Your Honor, the question has been repeatedly asked, your

Honor.

PROSEC.BAUTISTA:

You saw the stuff?

A: Yes sir.



PROSEC.

BAUTISTA:

And that’s all what you saw?

A: Yes sir.<SUP STYLE="COLOR: RGB(255, 0, 0);”>[29]</SUP>

It is clear from the aforecited testimonies that the evidence was not “marked” infront of the accused or his representative. Evidently, there was an irregularity in

the first link of the chain of custody.

Even assuming that the physical inventory contemplated in R.A. No. 9165subsumes the marking of the items itself, the belated marking of the seized

items at the police station sans the required presence of the accused and thewitnesses enumerated under Section 21(a) of the Implementing Rules andRegulations of R.A. No. 9165, and absent a justifiable ground to stand on, cannotbe considered a minor deviation from the procedures prescribed by the law. Wenote that other than the allegation that a marking was done at the police station,there was no proof that such marking was actually undertaken at all. From the

time it was placed inside the pocket or wallet of PO2 Arago, it surfaced again onlyat the marking of exhibits. In fact, there was no statement from any of the

witnesses that markings were made on the seized item in the presence of any ofthe persons mentioned in Section 21 (a) of the Implementing Rules and

Regulations of R.A. No. 9165. Moreover, the prosecution even failed to presentan accomplished Certificate of Inventory.30

Another gap in the chain of custody is apparent from the lack of evidencepresented by the prosecution to prove that the sachet of shabu, which wasentrusted by PO2 Arago to the investigator, is the same sachet that wasdelivered to the forensic chemist. The records are wanting o f testimonies showingthe manner of handling of the evidence, precautions taken and other significant

circumstances surrounding this essential transfer of custody. The prosecution didnot take the testimony of the investigator, nor did they adduce evidence on what

the investigator did with the seized shabu, how these got to the forensic chemist,and how they were kept before being adduced in evidence at trial. In fact, the

identity of such investigator was not even mentioned nor was there any mention

of a marking made on the seized item.

Upon further examination, we find that another gap in the chain of custody isapparent. There was no information on what happened to the drugs after P/Insp.

Gural examined it. This Court recognizes that the chemist’s testimony wasstipulated upon.31 However, the stipulations did not cover the manner on how the

specimens were handled after her examination. Without this testimony, there isno way for this Court to be assured that the substances produced in court are thesame specimens the forensic chemist found positive for shabu.32 Furthermore,most glaring is the fact that the prosecution even stipulated that the forensic

chemist had no knowledge from whom the alleged specimens were taken.33

Ultimately, when the prosecution evidence is wanting, deficient to the point ofdoubt that the dangerous drug recovered from the accused is the same drugpresented to the forensic chemist for review and examination, or the same drugpresented to the court, an essential element in cases of illegal sale and illegalpossession of dangerous drugs, the corpus delicti, is absent.

Negation of Presumption of Regularity

The lower courts erred in giving weight to the presumption of regularity in the

performance that a police officer enjoys in the absence of any taint of irregularityand of ill motive that would induce him to falsify his testimony. The regularity ofthe performance of the police officers’ duties leaves much to be desired in thiscase given the lapses in their handling of the allegedly confiscated shabu. The

totality of all the aforementioned procedural lapses effectively produced seriousdoubts on the integrity and identity of the corpus delicti , especially in the face of

allegations of frame–up.34 We have previously held35 that these lapses negate thepresumption that official duties have been regularly performed by the police

officers. Any taint of irregularity affects the whole performance and should makethe presumption unavailable.

In People v. Santos, Jr.,36 we held that the presumption of regularity in the

performance of official duty cannot by itself overcome the presumption of

innocence nor constitute proof beyond reasonable doubt.37

It should be notedthat the presumption is precisely just that – a presumption. Once challenged byevidence, as in this case, it cannot be regarded as binding truth.38

We recognize that the evidence proffered by the defense is far from strong; the

appellant merely denied the occurrence of a buy–bust operation and failed topresent impartial witnesses who were not interested in the case. In our

jurisdiction, the defense of denial or frame–up, like alibi, has been viewed withdisfavor for it can easily be concocted and is a common defense ploy in most

prosecutions for violation of the Dangerous Drugs Act.39 It should be emphasized,however, that these weaknesses do not add any strength to the prosecution’scause. Thus, however weak the defense evidence might be, the prosecution’swhole case still falls. As the well–entrenched dictum goes, the evidence for theprosecution must stand or fall on its own weight and cannot be allowed to drawstrength from the weakness of the defense.40

We therefore resolve to acquit the accused for failure of the prosecution – due to

the gap–induced weakness of the case – to prove the appellant’s guilt beyondreasonable doubt.

WHEREFORE, in light of all the foregoing, the 28 July 2010 Decision of the Court

of Appeals in CA–G.R. CR.–H.C. No. 01680 affirming the judgement of convictionof the Regional Trial Court, Branch 267, Pasig City is hereby REVERSED and SET



ASIDE. Appellant Jerry Caranto y Propeta isACQUITTED on reasonable doubt

and is ordered immediately RELEASED from detention, unless he is confined forany other lawful cause.

The Director of the Bureau of Corrections is DIRECTED to IMPLEMENT thisDecision and to report to this Court the action taken hereon within five (5) daysfrom receipt.

SO ORDERED.

FIRST DIVISION

PHILIPPINE DRUG ENFORCEMENT

AGENCY (PDEA),

Petitioner,

-versus-

RICHARD BRODETT AND JORGE

JOSEPH,

G.R. No. 196390

Present:

LEONARDO-DE CASTRO,

ActingChairperson,

BERSAMIN,

DEL CASTILLO,

PEREZ,*and

MENDOZA,** J J.

Promulgated:

Respondents.

September 28, 2011

x-------------------------- --------------------- --------------------- --------------------- x

D E C I S I O N

BERSAMIN, J.:

Objects of lawful commerce confiscated in the course of an enforcement of

the Comprehensive Dangerous Drugs Act of 2002 (Republic Act No. 9165)that are the property of a

third person are subject to be returned to the lawful ownerwho is not liable for the unlawful act. But

the trial court may not release such objects pending trial and before judgment.

Antecedents

On April 13, 2009, the State, through the Office of the City Prosecutor of Muntinlupa

City,charged RichardBrodett (Brodett) and Jorge Joseph (Joseph) with a violation of Section 5, in

relation to Section 26(b), of Republic Act No. 9165[1]in the Regional Trial Court (RTC) in















MuntinlupaCity,docketed as Criminal Case No. 09-208,the accusatory portion of the information for

which reads as follows:

That on or about the 19th day of September 2008, in the City of Muntinlupa, Philippines and

within the jurisdiction of this Honorable Court, the above-named accused, conspiring and

confederating together and mutually helping and aiding each other, they not being authorized by law,

did then and there wilfully, unlawfully, and feloniously sell, trade, deliver and give away to another,

sixty (60) pieces of blue-colored tablets with Motorala ( M ) logos, contained in six (6) self-sealing

transparent plastic sachets with recorded total net weight of 9.8388 grams, which when subjected to

laboratory examination yielded positive results for presence of METHAMPHETAMINE, a dangerous

drug.[2]

Also on April 16, 2009, the State, also through the Office of the City Prosecutor of

Muntinlupa City, filed another information charging only Brodett with a violation of Section 11 of

R.A. No. 9165, docketed as Criminal Case No. 09-209, with the information alleging:

That on or about the 19th day of September 2008, in the City of Muntinlupa, Philippines

and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by

law, did then and there, wilfully, unlawfully, and feloniously have in his possession, custody and

control the following:

a. Four (4) yellow tablets with Playboy logos and ten (10) transparent capsules containing

white powdery substance contained in one self-sealing transparent plastic sachet having a net weight of

4.9007 grams, which when subjected to laboratory examination yielded positive results for presence of

METHYLENE DIOXYMETHAMPHETAMINE (MDMA), commonly known as Ecstasy, a

dangerous drug;

b. Five (5) self-sealing tran sparent plastic sachets containing white po wdery substance

with total recorded net weight of 1.2235 grams, which when subjected to laboratory examination

yielded positive results for presence of COCCAINE, a dangerous drug;

c. Five (5) self-sealing transpar ent plastic sachets containing white pow dery substance,

placed i n a light-yellow folded paper, with total recorded net weight of 2.7355 grams, which when

subjected to laboratory examination yielded positive results for presence of COCCAINE, a dangerous

drug;







d. Three (3) self-sealing transparent plastic sachets containing dried leaves with total

recorded net weight of 54.5331 grams, which when subjected to laboratory examination yielded

positive results for presence of TETRAHYDROCANNABINOL, a dangerous drug.[3]

In the course of the proceedings in the RTC, on July 30, 2009, Brodett filed

a MotionToReturn Non-Drug Evidence. He averred that during his arrest, Philippine Drug

Enforcement Agency (PDEA) had seized several personal non-drug effects from him,including a 2004

Honda Accord car with license plate no. XPF-551;and that PDEArefused to return his personal effects

despite repeated demands for their return. He prayed that his personal effects be tendered to the trial

court to be returned to himupon verification.[4]

On August 27, 2009, the Office of the City Prosecutor submitted its Comment and

Objection ,[5] proposingthereby that the delivery to the RTC of the listedpersonal effects for safekeeping,

to be held there throughout the duration of the trial, would be to enable the Prosecution and the

Defense to exhaust their possible evidentiary value. The Office of the City Prosecutor objected to the

return of the car because it appeared to be the instrument in the commission of the violation of Section

5 of R.A. No. 9165 due to its being the vehicle used in the transaction of the sale of dangerous drugs.

On November 4, 2009, the RTC directedthe release of the car, viz :

WHEREFORE, the Director of PDEA or any of its authorized officer or custodian is hereby

directed to: (1) photograph the abovementioned Honda Accord, before returning the same to its

rightful owner Myra S. Brodett and the return should be fully documented, and (2) bring the personal

properties as listed i n this Ord er of bo th accused, Ri chard S. Brodett and Jorge J. Joseph to this court

for safekeeping, to be held as needed.

SO ORDERED.[6]

PDEA moved to reconsider the order of the RTC, but its motion was denied on February

17, 2010 for lack of merit, to wit:

WHEREFORE,premises considered, the Motion for Reconsideration is hereby DENIED for

lack of merit. The Order of the Court dated November 4, 2009 is upheld.

SO ORDERED.[7]























Thence, PDEA assailed the order of the RTC in the Court of Appeals (CA) by petition

for certiorari, claiming that the orders of the RTC were issued in grave abuse of discretion amounting

to lack or excess of jurisdiction.

On March 31, 2011, the CA promulgated its Decision,[8]dismissing the petition

for certiorari thusly:

xxxx

Here it is beyond dispute that the Honda Accord subject of this petition is owned by and

registered in the name of Myra S. Brodett, not accused Richard Brodett. Also, it does not appear from

the records of the case that said Myra S. Brodett has been charged of any crime, more particularly, in

the subject cases of possession and sale of dangerous drugs. Applying Section 20 of the law to the

dispute at bar, We therefore see no cogent reason why the subject Honda Accord may not be exempted

from confiscation and forfeiture.

xxxx

We thus cannot sustain petitioners submission that the subject car, being an instrument of

the offense, may not be released to Ms. Brodett and should remain in custodia legis.The letters of the

law are plain and unambiguous. Being so, there is no room for a contrary construction, especially so

that the only purpose of judicial construction is to remove doubt and uncertainty, matters that are not

obtaining here. More so that the required literal interpretation is consistent with the Constitutional

guarantee that a person may not be deprived of life, liberty or property without due process of law.

WHEREFORE, the instant petition is DENIED and consequently DISMISSED for lack of

merit.

SO ORDERED.[9]

Hence, PDEA appeals.

Issues

Essentially,PDEA asserts that the decision of the CAwas not in accord with applicable laws

and the primordial intent of the framers of R. A. No. 9165 .[10]

It contends that the CA gravely erred in

its ruling; that the Honda Accord car, registered under the name of Myra S. Brodett (Ms.Brodett), had

been seized fro m accused Br odettduring a legitimate anti-illegal operation and should not be released

from the custody of the law;that the Motion to Return Non -Drug Evid encedid not intimate or allege















that the car had belonged to a third person; and that even if the car had belonged to Ms. Brodett, a third

person, her own ership did n ot ipso facto authorize its release, because she was under the obligation to

prove to the RTC that she had no knowledge of the commission of the crime.

In hisComment ,[11]

Brodettcounters that the petitioner failed to present any question of law

that warranted a review by the Court;that Section 20 of R. A. No. 9165 clearly and unequivocally

states that confiscation and forfeiture of the proceeds or instruments of the supposed unlawful act in

favor of the Government may be done by PDEA, unless such proceeds or instruments are the property

of a third person not liable for the unlawful act; that PDEA is gravely mistaken in its reading that the

third person must still prove in the trial court that he has no knowledge of the commission of the crime;

and that PDEA failed to exhaust all remedies before filing the petition for review.

The decisive issue is whether or not the CA erred in affirming the orderfor the release of the

car to Ms.Brodett.

Ruling

The petition is meritorious.

I

Applicable laws and jurisprudence on releasing

property confiscated in criminal proceedings

It is not open to question thatin a criminal proceeding, the court having jurisdiction over the

offense has the power to order upon conviction of an accused the seizure of (a) the instruments to

commit the crime, including documents, papers, and other effects that are the necessary means to

commit the crime; and (b) contraband, the ownership or possession of which is not permitted for being

illegal. As justification for the first, the accused must not profit from his crime, or must not acquire

property or the right to possession of property through his unlawful act.[12]As justification for

thesecond, to return to the convict from whom thecontraband was taken, in one way or another,is not

prudent or proper, because doing so will give rise to a violation of the law for possessing the

contraband again.[13]

Indeed, the court having jurisdiction over the offense has theright to dispose of

property used in the commission of the crime, such disposition being an accessory penalty to be













imposed on the accused, unless the property belongs to a third person not liable for the offense that it

was used as the instrument to commit.[14]

In case of forfeiture of property for crime, title and ownership of the convict are absolutely

divested and shall pass to the Government.[15]

But it is required that the property to be forfeited must be

before the court in such manner that it can be said to be within its jurisdiction.[16]

According to the Rules of Court , personal property may be seized in connection with a

criminal offense either by authority of a search warrant or as the product of a search incidental to a

lawful arrest. If the search is by virtue of a search warrant, the personal property that may be seized

may be that which is the subject of the offense; or that which has been stolen or embezzled and other

proceeds, or fruits of the offense; orthat which has been used or intended to be used as the means of

committing an offense.[17]

If the search is an incident of a lawful arrest, seizure may be made of

dangerous weapons or anything that may have been used or may constitute proof in the commission of

an offense.[18]

Should there be no ensuing criminal prosecution in which the personal property seized is

used as evidence, itsreturn to the person from whom it was taken, or to the person who is entitled to its

possession is bu t a matter of course,[19]

except if it is contraband or illegal per se . A proper court may

order the return of property held solely as evidence should the Government be unreasonably delayed in

bringing a criminal prosecution.[20]The order for the disposition of such property can be made only

when the case is finally terminated.[21]

Generally, the trial court is vested with considerable legal discretion in the matter of

disposing of property claimed as evidence,[22]

and this discretion extends even to the manner of

proceeding in the event the accused claims the property was wrongfully taken from him.[23]In

particular, the trial court has the power to return property held as evidence to its r ightful owners,

whether the property was legally or illegally seized by the Government .[24]

Property used as evidence

must be returned once the criminal proceedings to which it relates have terminated, unless it is then

subject to forfeiture or other proceedings.[25]

II

Order of release was premature and made

in contravention of Section 20, R.A. No. 9165

It is undisputed that the ownership of the confiscated car belonged to Ms. Brodett, who was

not charged either in connection with the illegal possession and sale of illegal drugs involving Brodett

and Joseph that were the subject of the criminal proceedings in the RTC, or even in any other criminal

proceedings.



















































In its decision under review, the CA held as follows:

A careful reading of the above provision shows that confiscation and forfeiture in drug-

related cases pertains to all the proceeds and properties derived from the unlawful act, including but

not limited to, money and other assets obtained thereby, and the instruments or tools with which the

particular unlawful act was committed unless they are the property of a third person not liabl e for the

unlawful act . Simply put, the law exempts from the effects of confiscation and forfeiture any

property that is owned by a t hird person who is not liable for the unla wful act.

Here, it is beyond dispute that the Honda Accord subject of this petition is owned by and

registered in the name of Myra S. Brodett, not accused Richard Brodett . Also, it does not appear

from the records of the case that said Myra S. Brodett has been charged of any crime, more

particularly, in the subject cases of possession and sale of dangerous drugs. Applying Section 2 0 of the

law to the dispute at bar, We therefore see no cogent reason why the subject Honda Accord may not be

exempted from confiscation and forfeiture.

Basic is the rule in statutory construction that when the law is clear and unambiguous, the

court has no alternative but to apply the same according to its clear language. The Supreme Court had

steadfastly adhered to the doctrine that the first and fundamental duty of courts is to apply the law

according to its express terms, interpretation being called only when such literal application is

impossible. No process of interpretation or construction need be resorted to where a provision of law

peremptorily calls for application.

We thus cannot sustain petitioners submission that the subject car, being an instrument of

the offense, may not be released to Ms. Brodett and should remain in custodia legis. The letters of the

law are plain and unambiguous. Being so, there is no room for a contrary construction, especially so

that the only purpose of judicial construction is to remove doubt and uncertainty, matters that are not

obtaining here. More so that the required literal interpretation is not consistent with the Constitutional

guarantee that a person may not be deprived of life, liberty or property without due process of

law.[26] (emphases are in the original text)

The legal provision applicable to the confiscation and forfeiture of the proceeds or

instruments of the unlawful act, including the properties or proceeds derived from illegal trafficking of







dangerous drugs and precursors and essential chemicals,is Section 20 of R.A. No. 9165, which

pertinently providesas follows:

Section 20.Confiscation and Forfeiture of the Proceeds or Instruments of the Unlawful Act,

Including the Properties or Proceeds Derived from the Illegal Trafficking of Dangerous Drugs a nd/or

Precursors and Essential Chemicals. Every penalty imposed for the unlawful importation, sale,

trading, administration, dispensation, delivery, distribution, transportation or manufacture of any

dangerous drug and/or controlled precursor and essential chemical, the cultivation or culture of plants

which are sources of dangerous drugs, and the possession of any equipment, instrument, apparatus and

other paraphernalia for dangerous drugs including other laboratory equipment, shall carry with it the

confiscation and forfeiture, in favor of the government, of all the proceeds derived from unlawful act,

including, but not limited to, money and other assets obtained thereby, and the instruments or tools

with which the particular unlawful act was committed, unless they are the property of a third

person not liable for the unlawful act , but those which are not of lawful commerce shall be ordered

destroyed without delay pursuant to the provisions of Section 21 of this Act.

After conviction in the Regional Trial Court in the appropriate criminal case filed, the Court

shall immediately schedule a hearing for the confiscation and forfeiture of all the proceeds of the

offense and all the assets and properties of the accused either owned or held by him or in the name of

some other persons if the same shall be found to be manifestly out of proportion to his/her lawful

income: Provided, however, That if the forfeited property is a vehicle, the same shall be auctioned off

not later than five (5) days upon order of confiscation or forfeiture.

During the pendency of the case in the Regional Trial Court, no property, or income

derived therefrom, which may be confiscated and forfeited, shall be disposed, alienated or transferred

and the same shall be in custodialegis and no bond shall be admitted for the release of the same.

The proceeds of any sale or disposition of any property confiscated or forfeited under this

Section shall be used to pay all proper expenses incurred in the proceedings for the confiscation,

forfeiture, custody and maintenance of the property pending disposition, as well as expenses for

publication and court costs. The proceeds in excess of the abov e expenses shall accrue to the Board to

be used in its campaign against illegal drugs.[27]

There is no question, for even PDEA has itself pointed out, that the text of Section 20 of R.

A. No. 9165relevant to the confiscation and forfeiture of the proceeds or instruments of the unlawful

act is similar to that ofArticle 45 of the Revised Penal Code, which states:







Article 45.Confiscation and Forfeiture of the Proceeds or Instruments of theCrime . Every

penalty imposed for t he commission of a felony shall carry with it the forfeiture o f the proceeds of th e

crime and the instruments or tools with which it was committed.

Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the

Government, unless they be the property of a third person not liable for the offense, but those

articles which are not subject of lawful commerce shall be destroyed.

The Court has interpreted and applied Article 45of the Revised Penal Codein People v.

Jose ,[28]

concerning the confiscation and forfeiture of the car used by the four accused when they

committed theforcible abduction with rape, although the car did not belong to any of them, holding:

xxx Article 45 of the Revised Penal Code bars the confiscation and for feiture of an

instrument or tool used in the commission of the crime if such be the property of a third person not

liable for the offense, it is the sense of this Court that the order of the court below for the confiscation

of the car in question should be set aside and that the said car should be ordered delivered to the

intervenor for foreclosure as decreed in the judgment of the Court of First Instance of Manila in

replevin case. xxx[29]

Such interpretation is extended by analogy to Section 20, supra. To bar the forfeiture of the

tools and instruments belonging to a third person,therefore, there must be an indictment charging such

third person either as a principal, accessory, or accomplice. Less than that will not suffice to prevent

the return of the tools and instruments to the third person, for a mere suspicion of that persons

participation is not sufficient ground for the court to order the for feiture of the goods seized.[30]

However, the Office of the City Prosecutorproposed throughits Comment and

Objection submitted on August 27, 2009 in the RTC[31]that the delivery to the RTC of the listed

personal effects for safekeeping, to be held there throughout the duration of the trial, would be to

enable the Prosecution and the Defenseto exhaust their possible evidentiary value . The Office of the

City Prosecutor further objected to the return of the car because it appeared to bethe vehicle used in the

transaction of the sale of dangerous drugs, and, as such, was the instrument in the commission of the

violation of Section 5 of R.A. No. 9165.


















On its part, PDEA regards the decision of the CA to be not in accord with applicable laws

and the primordial intent of the framers of R. A. No. 9165,[32]

and contends that the car should not be

released from the custody of the law because it had been seized from accused Brodett during a

legitimate anti-illegal operation. It argues that the Motion to Return Non-Drug Evidencedid not

intimate or allege that the car had belonged to a third person; and that even if the car had belonged to

Ms. Brodett, a third person, her ownership did not ipso facto authorize its release, because she was

under the obligation to prove to the RTC that she had no knowledge of the commission of the crime. It

insists that the car is a property in custodialegis and may not be released during the pendency of the

trial.

We agree with PDEA and the Office of the City Prosecutor.

We note that the RTC granted accused Brodetts Motion To Retu rn Non-Drug Evidence on

November 4, 2009 when t he criminal proceedings were still going on, and the trial was y et to be

completed. Ordering the release of the car at that point of the proceedings was premature, considering

that the third paragraph of Section 20, supra, expressly forbids the disposition , alienation, or transfer of

any property, or income derived therefrom, that has been confiscated from the accused charged under

R.A. No. 9165 during the pendency of the proceedings in the Regional Trial Court. Section 20 further

expressly requires that such property or income derived therefrom should remain in custodialegis in all

that time and that no bond shall be admitted for the release of it.

Indeed, forfeiture, if warrantedpursuant to either Article 45 of the Revised Penal Cod e and

Section 20 of R.A. No. 9165, would be a part of the penalty to be prescribed. The determination of

whetheror not the car (or any other article confiscated in relation to the unlawful act) would be subject

of forfeiture could be made only when the judgment was to be rendered in the proceedings. Section 20

is also clear as to this.

The status of the car (or any other article confiscated in relation to the unlawful act) for the

duration of the trial in the RTCas being in custodialegisisprimarily intended to preserve it as evidence

and to ensure its availability as such. To release it before the judgment is rendered is to deprive the

trial court and the parties access to it as evidence. Consequently, that photographs were ordered to be

taken of the car was not enough, for mere photographs might not fill in fully the evidentiary need of

the Prosecution. As such, the RTCs assailed orders were issued with grave abuse of discretion

amounting to lack or excess of jurisdiction for being in contravention with the express language of

Section 20 of R.A. No. 9165.







Nonetheless, the Court need not annul the assailed orders of the RTC, or reverse the

decision of the CA. It appears thaton August 26, 2011 the RTC promulgated its decision on the merits

in Criminal Case No. 09-208 and Criminal Case No. 09-209, acquitting both Brodettand Joseph and

further ordering the return to the accused of all non-drug evidence except the buy-bust money and the

genuine money,because:

The failure of the prosecution therefore to establish all the links in the chain of custody is

fatal to the case at bar. The Court cannot merely rely on the presumption of regularity in the

performance of official function in view of the glaring blunder in the handl ing of the corpus delicti of

these cases. The presumption of regularity should bow down to the presumption of innocence of the

accused. Hence, the two (2) accused BRODETT and JOSEPH should be as it is hereby ACQUITTED

of the crimes herein charged for Illegal Selling and Illegal Possession of Dangerous Drugs.

WHEREFORE, premises considered, for failure of the prosecution to prove the guilt of the

accused beyond reasonable doubt, RICHARD BRODETT y SANTOS and JORGE JOSEPH y

JORDANA are ACQUITTED of the crimes charged in Criminal Case Nos. 09-208 and 09-209.

The subject drug evidence are all ordered transmitted to the Philippine Drug Enforcement

Agency (PDEA) for proper disposition. All the non-drug evidence except the buy bust money and

the genuine money are ordered returned to t he accused.

The genuine money used in the buy bust operation as well as the genuine money

confiscated from both accused are ordered escheated in favor of the government and accordingly

transmitted to the National Treasury for proper disposition. (emphasis supplied)[33]

The directive to return the non-drug evidence hasovertaken the petition for review as to

render further action upon it superfluous. Yet, the Court seizes the opportunity to perform its duty to

formulate guidelines on the matter of confiscation and forfeiture of non-drug articles, including those

belonging to third persons not liable for the o ffense, in order to clarify the extent of th e power of the

trial court under Section 20 of R.A. No. 9165.[34]This the Court must now do in view of the question

about the confiscation and forfeiture of non-drug objects being susceptible of repetition in the

future.

[35]

We rule that henceforth the Regional Trial Courts shall comply strictly with the provisions

of Section 20 of R.A. No. 9165, and should not release articles, whether drugs or non-drugs, for the















duration of the trial and before the rendition of the judgment, even if owned by a third person who is

not liable for the unlawful act.

IN VIEW OF THE FOREGOING, the petition for review isDENIED.

The Office of the Court Administrator is directed to disseminate this decision to all trial

courts for their guidance.

SO ORDERED.

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