G.R. No. 83988 September 29, 1989 RICARDO C.

VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLE'S RIGHTS (ULAP),petitioners, vs. GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT COMMAND, respondents. Ricardo C. Valmonte for himself and his co-petitioners.
PADILLA, J.: This is a petition for prohibition with preliminary injunction and/or temporary restraining order, seeking the declaration of checkpoints in Valenzuela, Metro Manila or elsewhere, as unconstitutional and the dismantling and banning of the same or, in the alternative, to direct the respondents to formulate guidelines in the implementation of checkpoints, for the protection of the people. Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the Republic, taxpayer, member of the Integrated Bar of the Philippines (IBP), and resident of Valenzuela, Metro Manila; while petitioner Union of Lawyers and Advocates for People's Rights (ULAP) sues in its capacity as an association whose members are all members of the IBP. The factual background of the case is as follows: On 20 January 1987, the National Capital Region District Command (NCRDC) was activated pursuant to Letter of Instruction 02/87 of the Philippine General Headquarters, AFP, with the mission of conducting security operations within its area of responsibility and peripheral areas, for the purpose of establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the social, economic and political development of the National Capital Region. 1 As part of its duty to maintain peace and order, the NCRDC installed checkpoints in various parts of Valenzuela, Metro Manila. Petitioners aver that, because of the installation of said checkpoints, the residents of Valenzuela are worried of being harassed and of their safety being placed at the arbitrary, capricious and whimsical disposition of the military manning the checkpoints, considering that their cars and vehicles are being subjected to regular searches and check-ups, especially at night or at dawn, without the benefit of a search warrant and/or court order. Their alleged fear for their safety increased when, at dawn of 9 July 1988, Benjamin Parpon, a supply officer of the Municipality of Valenzuela, Bulacan, was gunned down allegedly in cold blood by the members of the NCRDC manning the checkpoint along McArthur Highway at Malinta, Valenzuela, for ignoring and/or refusing to submit himself to the checkpoint and for continuing to speed off inspire of warning shots fired in the air. Petitioner Valmonte also claims that, on several occasions, he had gone thru these checkpoints where he was stopped and his car subjected to search/check-up without a court order or search warrant. Petitioners further contend that the said checkpoints give the respondents a blanket authority to make searches and/or seizures without search warrant or court order in violation of the Constitution; 2 and, instances have occurred where a citizen, while not killed, had been harassed. Petitioners' concern for their safety and apprehension at being harassed by the military manning the checkpoints are not sufficient grounds to declare the checkpoints as per se illegal. No proof has been presented before the Court to show that, in the course of their routine checks, the military indeed committed specific violations of petitioners' right against unlawful search and seizure or other rights. In a case filed by the same petitioner organization, Union of Lawyers and Advocates for People's Right (ULAP) vs. Integrated National Police , 3 it was held that individual petitioners who do not allege that any of their rights were violated are not qualified to bring the action, as real parties in interest. The constitutional right against unreasonable searches and seizures is a personal right invocable only by those whose rights have been infringed, 4 or threatened to be infringed. What constitutes a reasonable or unreasonable search and seizure in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved. 5 Petitioner Valmonte's general allegation to the effect that he had been stopped and searched without a search warrant by the military manning the checkpoints, without more, i.e., without stating the details of the incidents which amount to a violation of his right against unlawful search and seizure, is not sufficient to enable the Court to determine whether there was a violation of Valmonte's right

against unlawful search and seizure. Not all searches and seizures are prohibited. Those which are reasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case. 6 Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds, 7 or simply looks into a vehicle, 8 or flashes a light therein, 9 these do not constitute unreasonable search. The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be considered as a security measure to enable the NCRDC to pursue its mission of establishing effective territorial defense and maintaining peace and order for the benefit of the public. Checkpoints may also be regarded as measures to thwart plots to destabilize the government, in the interest of public security. In this connection, the Court may take judicial notice of the shift to urban centers and their suburbs of the insurgency movement, so clearly reflected in the increased killings in cities of police and military men by NPA "sparrow units," not to mention the abundance of unlicensed firearms and the alarming rise in lawlessness and violence in such urban centers, not all of which are reported in media, most likely brought about by deteriorating economic conditions which all sum up to what one can rightly consider, at the very least, as abnormal times. Between the inherent right of the state to protect its existence and promote public welfare and an individual's right against a warrantless search which is howeverreasonably conducted, the former should prevail. True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform, in the same manner that all governmental power is susceptible of abuse. But, at the cost of occasional inconvenience, discomfort and even irritation to the citizen, the checkpoints during these abnormal times, when conducted within reasonable limits, are part of the price we pay for an orderly society and a peaceful community. Finally, on 17 July 1988, military and police checkpoints in Metro Manila were temporarily lifted and a review and refinement of the rules in the conduct of the police and military manning the checkpoints was ordered by the National Capital Regional Command Chief and the Metropolitan Police Director. 10 WHEREFORE, the petition is DISMISSED. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Bidin, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur. Separate Opinions CRUZ, J., dissenting: I dissent. The sweeping statements in the majority opinion are as dangerous as the checkpoints it would sustain and fraught with serious threats to individual liberty. The bland declaration that individual rights must yield to the demands of national security ignores the fact that the Bill of Rights was intended precisely to limit the authority of the State even if asserted on the ground of national security. What is worse is that the searches and seizures are peremptorily pronounced to be reasonable even without proof of probable cause and much less the required warrant. The improbable excuse is that they are aimed at 'establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the social, economic and political development of the National Capital Region." For these purposes, every individual may be stopped and searched at random and at any time simply because he excites the suspicion, caprice, hostility or malice of the officers manning the checkpoints, on pain of arrest or worse, even being shot to death, if he resists. I have no quarrel with a policeman flashing a light inside a parked vehicle on a dark street as a routine measure of security and curiosity. But the case at bar is different. Military officers are systematically stationed at strategic checkpoint to actively ferret out suspected criminals by detaining and searching any individual who in their opinion might impair "the social, economic and political development of the National Capital Region." It is incredible that we can sustain such a measure. And we are not even under martial law. Unless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and the barbed wire, with the Court itself a captive of its own complaisance and sitting at the death-bed of liberty.

SARMIENTO, J., dissenting: I join Justice Isagani Cruz in his dissent, delivered so staightforwardly and eloquently. I am agreed that the existence alone of checkpoints makes search done therein, unreasonable and hence, repugnant to the Constitution. The Charter says that the people enjoy the right of security of person, home, and effects. (CONST., art. III, sec. 2.) It is also the bedrock the right of the people to be left alone on which the regime of law and constitutionalism rest. It is not, as the majority would put it, a matter of "occasional inconveniences, discomfort and even irritation." (Resolution, 4.) To say that it is, is so I submit to trivialize the plain command of the Constitution. Checkpoints, I further submit, are things of martial rule, and things of the past. They first saw the light of day by virtue of General Order No. 66 (AUTHORIZING THE CHIEF OF CONSTABULARY TO ESTABLISH CHECKPOINTS, UPDATE LISTS OF WANTED PERSONS AND CONDUCT DRAGNET OPERATIONS AND FOR OTHER PURPOSES), a martial law issuance, as amended by General Order No. 67 (AMENDING AND AMPLIFYING PARAGRAPH 7 OF GENERAL ORDER NO. 66 DATED SEPTEMBER 12, 1980), yet another martial law issuance. (See O.G. 4224-4226; 4226-4227 [Aug., 1983].) They are, so I strongly submit, repressive measures, the same measures against which we had fought so painstakingly in our quest for liberty, a quest that ended at EDSA and a quest that terminated a dictatorship. How soon we forget. While the right against unreasonable searches and seizures, as my brethren advance, is a right personal to the aggrieved party, the petitioners, precisely, have come to Court because they had been, or had felt, aggrieved. I submit that in that event, the burden is the State's, to demonstrate the reasonableness of the search. The petitioners, Ricardo Valmonte in particular, need not, therefore, have illustrated the "details of the incident" (Resolution, supra, 4) in all their gore and gruesomeness. In any event, the absence alone of a search warrant, as I have averred, makes checkpoint searches unreasonable, and by itself, subject to constitutional challenges. (Supra.) As it is, "checkpoints", have become "search warrants" unto themselves a roving one at that. That "[n]ot all searches and seizures are prohibited," the majority points out, is fine. And so is "a reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case." (Supra) But the question, exactly, is: Is (are) the search(es) in this case reasonable? I submit that it (they) is (are) not, for one simple reason: No search warrant has been issued by a judge. I likewise do not find this case to be a simple matter of an "officer merely draw(ing) aside the curtain of a vacant vehicle ... or simply look(ing) ( supra) there, "or flash(ing) a light therein." ( Supra) What we have here is Orwell's Big Brother watching every step we take and every move we make. As it also is, "checkpoints" are apparently, State policy. The American cases the majority refers to involve routine checks compelled by "probable cause". What we have here, however, is not simply a policeman on the beat but armed men, CAFGU or Alsa Masa, who hold the power of life or death over the citizenry, who fire with no provocation and without batting an eyelash. They likewise shoot you simply because they do not like your face. I have witnessed actual incidents. Washington said that militia can not be made to dictate the terms for the nation. He can not be anymore correct here. "Between the inherent right of the state to protect its existence ... and on individual's right against a warrantless search, which is reasonably conducted, "so my brethren go on, the former shall prevail. (Supra) First, this is the same lie that the hated despot foisted on the Filipino people. It is a serious mistake to fall for it a second time around. Second, the checkpoint searches herein are unreasonable: There was no warrant. A final word. After twenty years of tyranny, the dawn is upon us. The country is once again the "showcase of democracy" in Asia. But if in many cases, it has been "paper democracy", let this Court anyway bring to pass its stand, and make liberty in the land, a living reality. I vote then, to grant the petition.

Footnotes 1 Comment of Respondents. Rollo, p. 32. 2 Article III, Section 2, 1987 Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. 3 G.R. No. 80432. Minute Resolution dated 8 March 1988. 4 Section 52, 79 C.J.S. 810-811. 5 Section 8, 79 C.J.S. 786. 6 U.S. v. Robinwitz, N.Y., 70 S. Crt. 430,339 U.S. 56,94 L.Ed. 653; Harries v. U.S., Okl., 67 S.Ct. 1098 & 331 U.S. 146, 94 L.Ed. 1871; Martin v. U.S., C.A. Va., 183 F2d 436; 66, 79 C.J.S., 835-8,36. 7 Ibid., citing the case of People v. Case, 190 MW 289, 220 Mich. 379, 27 A.L.R. 686. 8 Ibid., citing the case of State v. Gaina, 97 SE 62, 111 S.C. 1 74, 3 A.L.R. 1500. 9 Ibid., citing the case of Rowland v. Commonwealth, 259 SW 33, 202 Rg 92. 10 Comment. Rollo, pp. 25-26.

G.R. No. L-69803 October 8, 1985

CYNTHIA D. NOLASCO, MILA AGUILAR-ROQUE and WILLIE C. TOLENTINO, petitioners, vs. HON. ERNANI CRUZ PAO, Executive Judge, RTC of Quezon City; HON. ANTONIO P. SANTOS, Presiding Judge, Branch XLII, MTC of Quezon City: HON. SERGIO F. APOSTOL, City Fiscal, Quezon City; HON. JUAN PONCE ENRILE, LT. GEN. FIDEL RAMOS and COL. JESUS ALTUNA, respondents.
MELENCIO-HERRERA, J.: The facts before the Court in these Certiorari, Prohibition, and mandamus proceedings will be briefly stated. The three petitioners will be referred to through their surnames of NOLASCO, AGUILARROQUE and TOLENTINO. 1. Prior to August 6, 1984 (hereinafter to be referred to without the year), AGUILAR-ROQUE was one of the accused of Rebellion in Criminal Case No. MC-25-113 of Military Commission No. 25, both cases being entitled "People of the Philippines vs. Jose Ma. Sison, et al." She was then still at large. 2. At 11:30 A.M. on August 6th, AGUILAR-ROQUE and NOLASCO were arrested by a Constabulary Security Group (CSG) at the intersection of Mayon Street and P. Margall Street, Quezon City. The stated time is an allegation of petitioners, not denied by respondents. The record does not disclose that a warrant of arrest had previously beeen issued against NOLASCO. 3. At 12:00 N. on August 6th, elements of the CSG searched the premises at 239-B Mayon Street, Quezon City. The stated time is an allegation of petitioners, not specifically denied by respondents. In their COMMENT, however, respondents have alleged that the search was conducted "late on the same day"; that is late on august 6th. 4. On August 6th, at around 9:00 A.M., Lt. Col. Virgilio G. Saldajeno of the CSG, applied for a Search Warrant from respondent Hon. Ernani Cruz Pao, Executive Judge of the Regional Trial Court in Quezon City, to be served at No. 239-B Mayon Street, Quezon City, determined tyo be the leased residence of AGUILAR-ROQUE, after almost a month of "round the clock surveillance" of the premises as a "suspected underground house of the CPP/NPA." AGUILAR-ROQUE has been long wanted by the military for being a high ranking officer of the Communist Party of the Philippines, particularly connected with the MV Karagatan/Doa Andrea cases. In connection with the Search Warrant issued, the following may be stated: (a) The Search Warrant was issued in proceedings entitled "People of the Philippines vs. Mila AguilarRoque, Accused, Search Warrant No. 80- 84 for rebellion" (the SEARCH WARRANT CASE). Judge Panos Court was Branch 88. (b) It does not appear from the records before us that an application in writing was submitted by Lt. Col. Saldajeno to Judge Pao. (c) According to the record, Lt. Col. Saldajeno and his witness S/A Dionicio A. Lapus, were examined under oath by Judge Pao but only the deposition of S/A Lapus has been submitted to us. The latter deposed that to his personal knowledge, there were kept in the premises to be searched records, documents and other papers of the CPP/NPA and the National Democratic Front, including support money from foreign and local sources intended to be used for rebellion. 1 5. In connection with the search made at 12:00 N. of August 6th the following may be stated: (a) TOLENTINO was a person then in charge of the premises. He was arrested by the searching party presumably without a warrant of arrest. (b) The searching party seized 428 documents and written materials, 2 and additionally a portable typewriter, and 2 wooden boxes, making 431 items in all. 3 (c) According to the Return, submitted in the SEARCH WARRANT CASE on August 10th, 4 the search was made in the presence of Dra. Marciana Galang, owner of the premises, and of two (2) Barangay Tanods. No mention was made that TOLENTINO was present. The list of the 428 articles and documents attached to the Return was signed by the two Barangay Tanods, but not by Dra. Galang. 6. (a) On August 10th, the three petitioners, AGUILAR-ROQUE, NOLASCO and TOLENTINO, were charged before the Quezon City Fiscal's Office (the CITY FISCAL, for short) upon complaint filed by the CSG against petitioners for "Subversion/Rebellion and/or Conspiracy to Commit Rebellion/Subversion." (b) On August 13th, the CITY FISCAL filed an Information for Violation of Presidential Decree No. 33 (Illegal Possession of Subversive Documents) against petitioners before Branch 42 of the Metropolitan Trial Court of Quezon City (the SUBVERSIVE DOCUMENTS CASE), respondent Judge Antonio P. Santos, presiding.

(c) On August 16th, CSG filed a Motion for Reconsideration with the CITY FISCAL, praying that AGUILAR-ROQUE and NOLASCO be charged with Subversion. The Motion was denied on November 16th. 7. (a) On September 10th, the CSG submitted an Amended Return in the SEARCH WARRANT CASE praying, inter alia, that the CSG be allowed to retain the seized 431 documents and articles, in connection with cases that are presently pending against Mila Aguilar Roque before the Quezon City Fiscal's Office and the court. 5 (b) On September 28th, petitioners were required by Judge Pano to comment on the Amended Return, which AGUILAR-ROQUE did on October 18th, raising the issue of the inadmissibility of any evidence obtained pursuant to the Search Warrant. (c) On December 13, 1984, Judge Pao admitted the Amended Return and ruled that the seized documents "shall be subject to disposition of the tribunal trying the case against respondent." 8. (a) On December 12th, petitioners filed a Motion to Suppress in the SUBVERSIVE DOCUMENTS CASE, praying that such of the 431 items belonging to them be returned to them. It was claimed that the proceedings under the Search Warrant were unlawful. Judge Santos denied the Motion on January 7, 1985 on the ground that the validity of the Search Warrant has to be litigated in the SEARCH WARRANT CASE. He was apparently not aware of the Order of Judge Pao of December 13th issued in the SEARCH WARRANT CASE. Hence, this Petition for Certiorari, Prohibition and mandamus to annul and set aside the (1) Search Warrant issued by respondent RTC Judge Pao; (2) his Order admitting the Amended Return and granting the Motion to Retain Seized Items; and (3) Order of respondent MTC Judge Santos denying petitioners' Motion to Suppress. This Court, on February 12, 1985, issued a TRO enjoining the respondents or their duly authorized representatives from introducing evidence obtained under the Search Warrant. The PETITIONERS principally assert that the Search Warrant is void because it is a general warrant since it does not sufficiently describe with particularity the things subject of the search and seizure, and that probable cause has not been properly established for lack of searching questions propounded to the applicant's witness. The respondents, represented by the Solicitor General, contend otherwise, adding that the questions raised cannot be entertained in this present petition without petitioners first moving for the quashal of the disputed Search Warrant with the issuing Judge. We find merit in the Petition. Section 3, Article IV of the Constitution, guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose. It also specifically provides that no Search Warrant shall issue except upon probable cause to be determined by the Judge or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized. The disputed Search Warrant (No. 80-84) describes the personalities to be seized as follows: Documents, papers and other records of the Communist Party of the Phihppines/New Peoples Army and/or the National Democratic Front, such as Minutes of the Party Meetings, Plans of these groups, Programs, List of possible supporters, subversive books and instructions, manuals not otherwise available to the public, and support money from foreign or local sources. It is at once evident that the foregoing Search Warrant authorizes the seizure of personal properties vaguely described and not particularized. It is an all- embracing description which includes everything conceivable regarding the Communist Party of the Philippines and the National Democratic Front. It does not specify what the subversive books and instructions are; what the manuals not otherwise available to the public contain to make them subversive or to enable them to be used for the crime of rebellion. There is absent a definite guideline to the searching team as to what items might be lawfully seized thus giving the officers of the law discretion regarding what articles they should seize as, in fact, taken also were a portable typewriter and 2 wooden boxes. It is thus in the nature of a general warrant and infringes on the constitutional mandate requiring particular description of the things to be seized. In the recent rulings of this Court, search warrants of similar description were considered null and void for being too general. Thus:

Subversive documents, pamphlets, leaflets, books, and other publications to promote the objectives and purposes of the subversive organizations known as Movement for Free Philippines. Light-a-Fire Movement and April 6 Movement. 6 The things to be seized under the warrant issued by respondent judge were described as 'subversive documents, propaganda materials, FAs, printing paraphernalia and all other subversive materials Such description hardly provided a definite guideline to the search team as to what articles might be lawfully seized thereunder. Said description is no different from if not worse than, the description found in the search warrants in "Burgos, et al. v. the Chief of Staff"which this Court declared null and void for being too general. 7 In the case at bar, the search warrant issued by respondent judge allowed the seizure of printed copies of the Philippine Times, manuscripts/drafts of articles for publication, newspaper dummies subversive documents, articles, etc., and even typewriters, duplicating machines, mimeographing and tape recording machines. Thus, the language used is so all embracing as to include all conceivable records and equipment of petitioner regardless of whether they are legal or illegal. The search warrant under consideration was in the nature of a general warrant which is constitutionally objectionable. 8 The lack of particularization is also evident in the examination of the witness presented by the applicant for Search Warrant. Q Mr. Dionicio Lapus, there is an application for search warrant filed by Lt. Col. Virgilio Saldajeno and the Court would like to know if you affirm the truth of your answer in this deposition? (The deposition instead) A Yes, sir, Q How long did it take you for the surveillance? A Almost a month, sir. Q Are you a lawyer, Mr. Lapus? A No, Your Honor, but I was a student of law. Q So, you are more or less familiar with the requisites of the application for search warrant? A Yes, Your Honor. Q How did you come to know of the person of Mila Aguilar-Roque? A Because of our day and night surveillance, Your Honor, there were so many suspicious persons with documents. Q What kind of documents do you refer to? A Documents related to the Communist Party of Philippines and New People's Army. Q What else? A Conferences of the top ranking officials from the National Democratic Front, Organization of the Communist Party of the Philippines ... Q And may include what else? A Other papers and documents like Minutes of the Party Meetings, Plans of these groups, Programs, List of possible supporters, subversive books and instructions, manuals not otherwise available to the public and support money from foreign and local sources. 9 The foregoing questions propounded by respondent Executive Judge to the applicant's witness are not sufficiently searching to establish probable cause. The "probable cause" required to justify the issuance of a search warrant comprehends such facts and circumstances as will induce a cautious man to rely upon them and act in pursuant thereof. 10 Of the 8 questions asked, the 1st, 2nd and 4th pertain to Identity. The 3rd and 5th are leading not searching questions. The 6th, 7th and 8th refer to the description of the personalities to be seized, which is Identical to that in the Search Warrant and suffers from the same lack of particularity. The examination conducted was general in nature and merely repetitious of the deposition of said witness. Mere generalization will not suffice and does not satisfy the requirements of probable cause upon which a warrant may issue. 11 Respondents claim, however, that the proper forum for questioning the illegality of a Search Warrant is with the Court that issued it instead of this original, independent action to quash. The records show, however, that petitioners did raise that issue in the SEARCH WARRANT CASE in their Comment, dated October 18, 1984. In fact, they already questioned the admissibility of the evidence obtained under the Search Warrant, even during the inquest investigation on August 10, 1984. And in the

SUBVERSIVE DOCUMENTS CASE, they filed a Motion to Suppress on December 12, 1984 claiming that the proceedings under the Search Warrant were unlawful. Substantially, therefore, while not denominated as a motion to quash, petitioners had questioned the legality of the Search Warrant. Parenthetically, it strikes the Court that the pendency of the SEARCH WARRANT CASE and of the SUBVERSIVE DOCUMENTS CASE before two different Courts is not conducive to an orderly administration of justice. It should be advisable that, whenever a Search Warrant has been issued by one Court, or Branch, and a criminal prosecution is initiated in another Court, or Branch, as a result of the service of the Search Warrant, the SEARCH WARRANT CASE should be consolidated with the criminal case for orderly procedure. The later criminal case is more substantial than the Search Warrant proceeding, and the Presiding Judge in the criminal case should have the right to act on petitions to exclude evidence unlawfully obtained. Notwithstanding the irregular issuance of the Search Warrant and although, ordinarily, the articles seized under an invalid search warrant should be returned, they cannot be ordered returned in the case at bar to AGUILAR-ROQUE. Some searches may be made without a warrant. Thus, Section 12, Rule 126, Rules of Court, explicitly provides: Section 12. Search without warrant of person arrested .A person charged with an offense may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense. The provision is declaratory in the sense that it is confined to the search, without a search warrant, of a person who had been arrested. It is also a general rule that, as an incident of an arrest, the place or premises where the arrest was made can also be search without a search warrant. In this latter case, "the extent and reasonableness of the search must be decided on its own facts and circumstances, and it has been stated that, in the application of general rules, there is some confusion in the decisions as to what constitutes the extent of the place or premises which may be searched. 12 "What must be considered is the balancing of the individual's right to privacy and the public's interest in the prevention of crime and the apprehension of criminals." 13 Considering that AGUILAR-ROQUE has been charged with Rebellion, which is a crime against public order; that the warrant for her arrest has not been served for a considerable period of time; that she was arrested within the general vicinity of her dwelling; and that the search of her dwelling was made within a half hour of her arrest, we are of the opinion that in her respect, the search at No. 239-B Mayon Street, Quezon City, did not need a search warrant; this, for possible effective results in the interest of public order. Such being the case, the personalities seized may be retained. by CSG, for possible introduction as evidence in the Rebellion Case, leaving it to AGUILAR-ROQUE to object to their relevance and to ask Special Military Commission No.1 to return to her any and all irrelevant documents and articles. WHEREFORE, while Search Warrant No. 80-84 issued on August 6, 1984 by respondent Executive Judge Ernani Cruz Pao is hereby annulled and set aside, and the Temporary Restraining Order enjoining respondent from introducing evidence obtained pursuant to the Search Warrant in the Subversive Documents case hereby made permanent, the, personalities seized may be retained by the Constabulary Security Group for possible introduction as evidence in Criminal Case No. SMC-1-1, pending before Special Military commission No. 1, without prejudice to petitioner Mila Aguilar-Roque objecting to their relevance and asking said Commission to return to her any and all irrelevant documents and articles. SO ORDERED. Separate Opinions TEEHANKEE, J., concurring and dissenting: I concur with the concurring and dissenting opinion of Mr. Justice Vicente Abad Santos. The questioned search warrant has correctly been declared null and void in the Court's decision as a general warrant issued in gross violation of the constitutional mandate that "the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated" (Bill of Rights, sec. 3). The Bill of Rights orders the absolute exclusion of all illegally obtained evidence: "Any evidence obtained in violation of this . . . section shall be inadmissible for any purpose in any proceeding" (Sec. 4[2]). This

constitutional mandate expressly adopting the exclusionary rule has proved by historical experience to be the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures by outlawing all evidence illegally seized and thereby removing the incentive on the part of state and police officers to disregard such basic rights. What the plain language of the Constitution mandates is beyond the power of the courts to change or modify. All the articles thus seized fall under the exclusionary rule totally and unqualifiedly and cannot be used against any of the three petitioners, as held by the majority in the recent case of Galman vs. Pamaran (G.R. Nos. 71208-09, August 30, 1985). The Court has held that "in issuing a search warrant the judge must strictly comply with the requirements of the Constitution and the statutory provisions. A liberal construction should be given in favor of the individual to prevent stealthy encroachment upon, or gradual depreciation of the rights secured by the Constitution. No presumptions of regularity are to be invoked in aid of the process when an officer undertakes to justify it." (Mata vs. Bayona, 128 SCRA 388, 393-394) The majority pronouncement that "as an incident to (petitioner Mila Aguilar- Roque's) arrest, her dwelling at No. 239-B Mayon Street, Quezon City could have been searched, even without a warrant, for evidence of rebellion" is patently against the constitutional proscription and settled law and jurisprudence. Mr. Justice Cuevas amply discusses this in the dissenting portion of his separate opinion. Suffice it to add and stress that the arresting CSG Group themselves knew that they needed a search warrant and obtained the void warrant in question. The exception of Rule 126, sec. 12 which allows a warrantless search of a person who is lawfully arrested is absolutely limited to his person, at the time of and incident to his arrest and to dangerous weapons or anything which may be used as proof of the commission of the offense." Such warrantless search obviously cannot be made in a placeother than the place of arrest. In this case, petitioner Aguilar-Roque was arrested at 11:30 a.m. on board a public vehicle on the road (at Mayon and P. Margall Streets). To hold that her dwelling could "later on the same day" be searched without warrant is to sanction an untenable violation, if not nullification, of the cited basic constitutional rights against unreasonable searches and seizures. I vote to grant the petition in toto. ABAD SANTOS, J., concurring and dissenting: I concur in the judgment insofar as it annuls and sets aside Search Warrant No. 80-84 issued by Executive Judge Ernani Cruz Pao for the reasons adduced by Justice Melencio Herrera. In addition I wish to state the judge either did not fully know the legal and constitutional requirements for the issuance of a search warrant or he allowed himself to be used by the military. In either case his action can only be described as deplorable. I do not agree with the ponencia when it says that personalities seized may be retained by the Constabulary Security Group for possible introduction as evidence in Criminal Case No. SMC-1-1 pending before Special Military Commission No. 1. I agree with Justice Cuevas. for the reasons stated by him, that their retention cannot be justified by the provisions of Sec. 12, Rule 126 of the Rules of Court. But then again I cannot agree with Justice Cuevas, statement that not all the things seized can be ordered returned to their owners. He refers to "the subversive materials seized by the government agents." What are subversive materials? Whether a material is subversive or not is a conclusion of law, not of fact. Who will make the determination? Certainly not the military for it is not competent to do so aside from the fact that it has its own peculiar views on the matter. thus copies of Playboy magazines were seized from a labor leader now deceased and medicines were also seized from a physician who was suspected of being a subversive. I say return everything to the petitioners. CUEVAS, J., concurring and dissenting I fully agree with the pronouncement in the majority opinion nullifying Search warrant No. 80-84 issued by the Hon. Ernani Cruz Pao Executive Judge of the Regional Trial Court of Quezon City which was served at 239B Mayon St., Quezon City It does not specify with requisite particularity the things, objects or properties that may be seized hereunder. Being in the nature of a general warrant, it violates the constitutional mandate that the place to be searched and the persons or things to be seized, 'must be particularly described. (Art. IV, Sec. 3, 1973 Constitution) I, however, regret being unable to concur with the dictum justifying the said search on the basis of Sec. 12, Rule 126 of the Rules of Court which provides:

SEC. 12. Search without warrant of person arrested.A person charged with an offense may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense. The lawful arrest being the sole justification for the validity of the warrantless search under the aforequoted provision (Sec. 12, Rule 126) the same must be limited to and circumscribed by, the subject, time, and place of said arrest. As to subject, the warrantless search is sanctioned only with respect to the person of the suspect, and things that may be seized from him are limited to "dangerous weapons" or "anything which may be used as proof of the commission of the offense." Hence An officer making an arrest may take from the person arrested any money or property found upon his person which was used in the commission of the crime or might furnish the prisoner with the means of committing violence or escaping or which may be used as evidence in the trial of the cause ... (In Re Moreno vs. Ago Chi, 12 Phil. 439: People vs. Veloso, 48 Phil. 169) With respect to the time and place of the warrantless search allowed by law, it must be contemporaneous with the lawful arrest. Stated otherwise, to be valid, the search must have been conducted at about the time of the arrest or immediately thereafter and only at the place where the suspect was arrested, The right without a search warrant contemporaneously to search a person lawfully arrested while committing a crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons or other things to effect an escape from custody is not to be doubted. CAROLL vs. US 267 US 122. 158. ... But the right does not extend to other places. Frank Agnello's house was several blocks distant from Alba's house where the arrest was made. When it was entered and searched, the conspiracy was ended and the defendants were under arrest and in custody elsewhere. That search cannot be sustained as an incident of the arrests. MARSON vs. US, 275 US 192, 199. (Emphasis supplied) (Agnello vs. U.S., 269 U.S. 20,30) The second element which must exist in order to bring the case within the exception to the general rule is that, in addition to a lawful arrest, the search must be incident to the arrest. The search must be made at the place of the arrest, otherwise, it is not incident to the arrest.AGNELLO vs. U.S. supra. In this latter case, 269 U.S. 20 at 30, it is said that the officers have a right to make a search contemporaneously with the arrest. And if the purpose of the officers in making their entry is not to make an arrest , but to make a search to obtain evidence for some future arrest, then search is not incidental to arrest. BYARS vs. U.S. 273 U.S., 28 ET AL. (Papani vs, U. S. 84 F 2d 160, 163) In the instant case, petitioners were arrested at the intersection of Mayon St. and P. Margall St. at 11:30 A.M. of August 6. 1976. The search, on the other hand, was conducted after the arrest, that was at around 12:00 noon of the same day or "late that same day (as respondents claim in their "COMMENT") at the residence of petitioner AGUILAR-ROQUE in 239B May n St., Quezon City. How far or how many kilometers is that place from the place where petitioner was arrested do not appear shown by the record. But what appears undisputed is that the search was made in a place other than the place of arrest and, not on the occasion of nor immediately after the arrest . It cannot be said, therefore, that such a search was incidental to the arrest of the petitioners. Not being an incident of a lawful arrest, the search of the premises at 239B Mayon St., Quezon City WITHOUT A VALID SEARCH WARRANT is ILLEGAL and violative of the constitutional rights of the respondent. The things and properties seized on the occasion of said illegal search are therefore INADMISSIBLE in evidence under the exclusionary rule. However, not all the things so seized can be ordered returned to their owners. Objects and properties the possession of which is prohibited by law, cannot be returned to their owners notwithstanding the illegality of their seizure. (Mata vs. Bayona, 128 SCRA 388, 1984 citing Castro vs. Pabalan, 70 SCRA 478). Thus, the subversive materials seized by the government agents which cannot be legally possessed by anyone under the law can and must be retained by the government.

G.R. No. 136292

January 15, 2002

RUDY CABALLES y TAIO, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
PUNO, J.: This is an appeal by certiorari from the decision1 of respondent Court of Appeals dated September 15, 1998 which affirmed the judgment rendered by the RTC of Santa Cruz, Laguna, finding herein petitioner, Rudy Caballes y Taio, guilty beyond reasonable doubt of the crime of theft, and the resolution2 dated November 9, 1998 which denied petitioner's motion for reconsideration . In an Information3 dated October 16, 1989, petitioner was charged with the crime of theft committed as follows: "That on or about the 28th day of June, 1989, in the Municipality of Pagsanjan, and/or elsewhere in the Province of Laguna, and within the jurisdiction of this Honorable Court, the above-named accused, with intent of gain, and without the knowledge and consent of the owner thereof, the NPC, did then and there wilfully, unlawfully and feloniously take, steal and carry away about 630-kg of Aluminum Cable Conductors, valued at P27, 450.00, belonging to and to the damage and prejudice of said ownerNPC, in the aforesaid amount. CONTRARY TO LAW." During the arraignment, petitioner pleaded not guilty and hence, trial on the merits ensued. The facts are summarized by the appellate court as follows: "[At] about 9:15 p.m. of June 28, 1989, Sgt. Victorino Noceja and Pat. Alex de Castro, while on a routine patrol in Barangay Sampalucan, Pagsanjan, Laguna, spotted a passenger jeep unusually covered with "kakawati" leaves. Suspecting that the jeep was loaded with smuggled goods, the two police officers flagged down the vehicle. The jeep was driven by appellant. When asked what was loaded on the jeep, he did not answer; he appeared pale and nervous. With appellant's consent, the police officers checked the cargo and they discovered bundles of 3.08 mm aluminum/galvanized conductor wires exclusively owned by NPC. The conductor wires weighed 700 kilos and valued at P55, 244.45. Noceja asked appellant where the wires came from and appellant answered that they came from Cavinti, a town approximately 8 kilometers away from Sampalucan. Thereafter, appellant and the vehicle with the high-voltage wires were brought to the Pagsanjan Police Station. Danilo Cabale took pictures of the appellant and the jeep loaded with the wires which were turned over to the Police Station Commander of Pagsanjan, Laguna. Appellant was incarcerated for 7 days in the Municipal jail. In defense, appellant interposed denial and alibi. He testified that he is a driver and resident of Pagsanjan, Laguna; a NARCOM civilian agent since January, 1988 although his ID has already expired. In the afternoon of June 28, 1989, while he was driving a passenger jeepney, he was stopped by one Resty Fernandez who requested him to transport in his jeepney conductor wires which were in Cavinti, Laguna. He told Resty to wait until he had finished his last trip for the day from Santa Cruz, Laguna. On his way to Santa Cruz, Laguna, he dropped by the NARCOM headquarters and informed his superior, Sgt. Callos, that something unlawful was going to happen. Sgt. Callos advised him to proceed with the loading of the wires and that the former would act as back-up and intercept the vehicle at the Sambat Patrol Base in Pagsanjan. After receiving those instructions, he went back to see Resty. Although Resty had his own vehicle, its tires were old so the cable wires were loaded in appellant's jeep and covered with kakawati leaves. The loading was done by about five (5) masked men. He was promised P1,000.00 for the job. Upon crossing a bridge, the two vehicles separated but in his case, he was intercepted by Sgt. Noceja and Pat. De Castro. When they discovered the cables, he told the police officers that the cables were loaded in his jeep by the owner, Resty Fernandez. But despite his explanation, he was ordered to proceed to police headquarters where he was interrogated. The police officers did not believe him and instead locked him up in jail for a week."4 On April 27, 1993, the court a quo rendered judgment5 the dispositive portion of which reads: "WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of Theft of property worthP55,244.45, the Court hereby sentences him to suffer imprisonment from 2

[YEARS], 4 MONTHS, and ) DAY of Prision Correccional, as minimum, to 10 YEARS of Prision Mayor, as maximum, to indemnify the complainant National Power Corporation in the amount of P55, 244.45, and to pay the costs." On appeal, the Court of Appeals affirmed the judgment of conviction but deleted the award for damages on the ground that the stolen materials were recovered and modified the penalty imposed, to wit: "WHEREFORE, the appealed decision is hereby AFFIRMED with the modification that appellant RUDY CABALLES is found guilty beyond reasonable doubt as principal in theft, defined and penalized under Articles 308 and 309, par. 1, Revised Penal Code, and there being no modifying circumstances, he is hereby meted an indeterminate penalty of 4 years, 9 months and 1) days of prision correccional, as minimum term, to 8 years, 8 months and 1 day of prision mayor, as maximum term. No civil indemnity and no costs." 6 Petitioner comes before us and raises the following issues: "(a) Whether or not the constitutional right of petitioner was violated when the police officers searched his vehicle and seized the wires found therein without a search warrant and when samples of the wires and references to them were admitted in evidence as basis for his conviction; (b) Whether or not respondent Court erred in rejecting petitioner's defense that he was engaged in an entrapment operation and in indulging in speculation and conjecture in rejecting said defense; and (c) Whether or not the evidence of the prosecution failed to establish the guilt of petitioner beyond reasonable doubt and thus failed to overcome the constitutional right of petitioner to presumption of innocence." The conviction or acquittal of petitioner hinges primarily on the validity of the warrantless search and seizure made by the police officers, and the admissibility of the evidence obtained by virtue thereof. In holding that the warrantless search and seizure is valid, the trial court ruled that: "As his last straw of argument, the accused questions the constitutionality of the search and validity of his arrest on the ground that no warrant was issued to that effect. The Court cannot again sustain such view. In the case of People v. Lo Ho [Wing], G.R. No. 88017, January 21, 1991, it has been held that 'considering that before a warrant can be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge a requirement which borders on the impossible in the case of smuggling effected by the use of a moving vehicle that can transport contraband from one place to another with impunity, a warrantless search of a moving vehicle is justified on grounds of practicability.' The doctrine is not of recent vintage. In the case of Valmonte vs. de Villa, G.R. No. 83988, May 24, 1990 (Resolution on Motion for Reconsideration, September 29, 1989), it was ruled that 'automobiles because of their mobility may be searched without a warrant upon facts not justifying warrantless search of a resident or office. x x x To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many instances' (Ibid.). In Umil v. Ramos, 187 SCRA 311, and People vs. Ortiz, 191 SCRA 836, the Supreme Court held that a search may be made even without a warrant where the accused is caught in flagrante. Under the circumstances, the police officers are not only authorized but are also under obligation to arrest the accused even without a warrant." 7 Petitioner contends that the flagging down of his vehicle by police officers who were on routine patrol, merely on "suspicion" that "it might contain smuggled goods," does not constitute probable cause that will justify a warrantless search and seizure. He insists that, contrary to the findings of the trial court as adopted by the appellate court, he did not give any consent, express or implied, to the search of the vehicle. Perforce, any evidence obtained in violation of his right against unreasonable search and seizure shall be deemed inadmissible. Enshrined in our Constitution is the inviolable right of the people to be secure in their persons and properties against unreasonable searches and seizures, as defined under Section 2, Article III thereof, which reads:

"Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized." The exclusionary rule under Section 3(2), Article III of the Constitution bars the admission of evidence obtained in violation of such right. The constitutional proscription against warrantless searches and seizures is not absolute but admits of certain exceptions, namely: (1) warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence; 8 (2) seizure of evidence in plain view;9 (3) search of moving vehicles; 10 (4) consented warrantless search; 11 (5) customs search; (6) stop and frisk situations (Terry search);12and (7) exigent and emergency circumstances.13 In cases where warrant is necessary, the steps prescribed by the Constitution and reiterated in the Rules of Court must be complied with. In the exceptional events where warrant is not necessary to effect a valid search or seizure, or when the latter cannot be performed except without a warrant, what constitutes a reasonable or unreasonable search or seizure is purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched and the character of the articles procured. 14 It is not controverted that the search and seizure conducted by the police officers in the case at bar was not authorized by a search warrant. The main issue is whether the evidence taken from the warrantless search is admissible against the appellant. Without said evidence, the prosecution cannot prove the guilt of the appellant beyond reasonable doubt. I. Search of moving vehicle Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity. 15 Thus, the rules governing search and seizure have over the years been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge a requirement which borders on the impossible in the case of smuggling effected by the use of a moving vehicle that can transport contraband from one place to another with impunity. We might add that a warrantless search of a moving vehicle is justified on the ground that it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.16 Searches without warrant of automobiles is also allowed for the purpose of preventing violations of smuggling or immigration laws, provided such searches are made at borders or 'constructive borders' like checkpoints near the boundary lines of the State. 17 The mere mobility of these vehicles, however, does not give the police officers unlimited discretion to conduct indiscriminate searches without warrants if made within the interior of the territory and in the absence of probable cause.18 Still and all, the important thing is that there was probable cause to conduct the warrantless search, which must still be present in such a case. Although the term eludes exact definition, probable cause signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man's belief that the person accused is guilty of the offense with which he is charged; or the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched. 19 The required probable cause that will justify a warrantless search and seizure is not determined by a fixed formula but is resolved according to the facts of each case.20 One such form of search of moving vehicles is the "stop-and-search" without warrant at military or police checkpoints which has been declared to be not illegal per se, 21 for as long as it is warranted by

the exigencies of public order 22 and conducted in a way least intrusive to motorists. 23 A checkpoint may either be a mere routine inspection or it may involve an extensive search. Routine inspections are not regarded as violative of an individual's right against unreasonable search. The search which is normally permissible in this instance is limited to the following instances: (1) where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds;24 (2) simply looks into a vehicle; 25 (3) flashes a light therein without opening the car's doors;26 (4) where the occupants are not subjected to a physical or body search; 27 (5) where the inspection of the vehicles is limited to a visual search or visual inspection; 28 and (6) where the routine check is conducted in a fixed area.29 None of the foregoing circumstances is obtaining in the case at bar. The police officers did not merely conduct a visual search or visual inspection of herein petitioner's vehicle. They had to reach inside the vehicle, lift the kakawati leaves and look inside the sacks before they were able to see the cable wires. It cannot be considered a simple routine check. In the case of United States vs. Pierre,30 the Court held that the physical intrusion of a part of the body of an agent into the vehicle goes beyond the area protected by the Fourth Amendment, to wit: "The Agent . . . stuck his head through the driver's side window. The agent thus effected a physical intrusion into the vehicle. . . [W]e are aware of no case holding that an officer did not conduct a search when he physically intruded part of his body into a space in which the suspect had a reasonable expectation of privacy. [The] Agent['s] . . . physical intrusion allowed him to see and to smell things he could not see or smell from outside the vehicle. . . In doing so, his inspection went beyond that portion of the vehicle which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers, and into the area protected by the Fourth amendment, just as much as if he had stuck his head inside the open window of a home." On the other hand, when a vehicle is stopped and subjected to an extensive search, such a warrantless search would be constitutionally permissible only if the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a lawoffender or they will find the instrumentality or evidence pertaining to a crime in the vehicle to be searched.31 This Court has in the past found probable cause to conduct without a judicial warrant an extensive search of moving vehicles in situations where (1) there had emanated from a package the distinctive smell of marijuana; (2) agents of the Narcotics Command ("Narcom") of the Philippine National Police ("PNP") had received a confidential report from informers that a sizeable volume of marijuana would be transported along the route where the search was conducted; (3) Narcom agents had received information that a Caucasian coming from Sagada, Mountain Province, had in his possession prohibited drugs and when the Narcom agents confronted the accused Caucasian, because of a conspicuous bulge in his waistline, he failed to present his passport and other identification papers when requested to do so; (4) Narcom agents had received confidential information that a woman having the same physical appearance as that of the accused would be transporting marijuana; 32 (5) the accused who were riding a jeepney were stopped and searched by policemen who had earlier received confidential reports that said accused would transport a large quantity of marijuana; and (6) where the moving vehicle was stopped and searched on the basis of intelligence information and clandestine reports by a deep penetration agent or spy - one who participated in the drug smuggling activities of the syndicate to which the accused belonged - that said accused were bringing prohibited drugs into the country.33 In the case at bar, the vehicle of the petitioner was flagged down because the police officers who were on routine patrol became suspicious when they saw that the back of the vehicle was covered with kakawati leaves which, according to them, was unusual and uncommon. Pat. Alex de Castro recounted the incident as follows: "ATTY. SANTOS Q Now on said date and time do you remember of any unusual incident while you were performing your duty?

A Yes, sir, at that time and date myself and Police Sgt. Noceja were conducting patrol in the said place when we spotted a suspicious jeepney so we stopped the jeepney and searched the load of the jeepney and we found out (sic) these conductor wires. Q You mentioned about the fact that when you saw the jeepney you became suspicious, why did you become suspicious? A Because the cargo was covered with leaves and branches, sir. Q When you became suspicious upon seeing those leaves on top of the load what did you do next, if any? A We stopped the jeepney and searched the contents thereof, sir." 34 The testimony of Victorino Noceja did not fare any better: "ATTY SANTOS Q When you saw the accused driving the said vehicle, what did you do? A Because I saw that the vehicle being drawn by Caballes was covered by kakawati leaves, I became suspicious since such vehicle should not be covered by those and I flagged him, sir."35 We hold that the fact that the vehicle looked suspicious simply because it is not common for such to be covered with kakawati leaves does not constitute "probable cause" as would justify the conduct of a search without a warrant. In People vs. Chua Ho San,36 we held that the fact that the watercraft used by the accused was different in appearance from the usual fishing boats that commonly cruise over the Bacnotan seas coupled with the suspicious behavior of the accused when he attempted to flee from the police authorities do not sufficiently establish probable cause. Thus: "In the case at bar, the Solicitor General proposes that the following details are suggestive of probable cause - persistent reports of rampant smuggling of firearm and other contraband articles, CHUA's watercraft differing in appearance from the usual fishing boats that commonly cruise over the Bacnotan seas, CHUA's illegal entry into the Philippines x x x, CHUA's suspicious behavior, i.e., he attempted to flee when he saw the police authorities, and the apparent ease by which CHUA can return to and navigate his speedboat with immediate dispatch towards the high seas, beyond the reach of Philippine laws. This Court, however, finds that these do not constitute "probable cause." None of the telltale clues, e.g., bag or package emanating the pungent odor of marijuana or other prohibited drug, confidential report and/or positive identification by informers of courier of prohibited drug and/or the time and place where they will transport/deliver the same, suspicious demeanor or behavior, and suspicious bulge in the waist - accepted by this Court as sufficient to justify a warrantless arrest exists in this case. There was no classified information that a foreigner would disembark at Tammocalao beach bearing prohibited drug on the date in question. CHUA was not identified as a drug courier by a police informer or agent. The fact that the vessel that ferried him to shore bore no resemblance to the fishing boats of the area did not automatically mark him as in the process of perpetrating an offense. x x x." (emphasis supplied) In addition, the police authorities do not claim to have received any confidential report or tipped information that petitioner was carrying stolen cable wires in his vehicle which could otherwise have sustained their suspicion. Our jurisprudence is replete with cases where tipped information has become a sufficient probable cause to effect a warrantless search and seizure. 37 Unfortunately, none exists in this case. II. Plain view doctrine It cannot likewise be said that the cable wires found in petitioner's vehicle were in plain view, making its warrantless seizure valid. Jurisprudence is to the effect that an object is in plain view if the object itself is plainly exposed to sight. Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be seized without a warrant. However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized. In other words, if the package is such that an experienced observer could infer from its appearance that it contains the prohibited article, then the

article is deemed in plain view. It must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband or otherwise subject to seizure. 38 It is clear from the records of this case that the cable wires were not exposed to sight because they were placed in sacks39 and covered with leaves. The articles were neither transparent nor immediately apparent to the police authorities. They had no clue as to what was hidden underneath the leaves and branches. As a matter of fact, they had to ask petitioner what was loaded in his vehicle. In such a case, it has been held that the object is not in plain view which could have justified mere seizure of the articles without further search.40 III. Consented search Petitioner contends that the statement of Sgt. Victorino Noceja that he checked the vehicle "with the consent of the accused" is too vague to prove that petitioner consented to the search. He claims that there is no specific statement as to how the consent was asked and how it was given, nor the specific words spoken by petitioner indicating his alleged "consent." At most, there was only an implied acquiescence, a mere passive conformity, which is no "consent" at all within the purview of the constitutional guarantee. Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. The consent must be voluntary in order to validate an otherwise illegal detention and search, i.e., the consent is unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion.41 Hence, consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence. 42 The question whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances.43 Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given: (1) the age of the defendant; (2) whether he was in a public or secluded location; (3) whether he objected to the search or passively looked on;44 (4) the education and intelligence of the defendant; (5) the presence of coercive police procedures; (6) the defendant's belief that no incriminating evidence will be found; 45 (7) the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the possibly vulnerable subjective state of the person consenting. 46 It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given.47 In the case at bar, Sgt. Victorino Noceja testified on the manner in which the search was conducted in this wise: "WITNESS Q On June 28, 1989, where were you? A We were conducting patrol at the poblacion and some barangays, sir. xxx xxx xxx Q After conducting the patrol operation, do you remember of any unusual incident on said date and time? A Yes, sir. Q What is that incident? A While I was conducting my patrol at barangay Sampalucan, I saw Rudy Caballes driving a vehicle and the vehicle contained aluminum wires, sir. xxx xxx xxx Q When you saw the accused driving the said vehicle, what did you do? A Because I saw that the vehicle being driven by Caballes was covered by kakawati leaves, I became suspicious since such vehicle should not be covered by those and I flagged him, sir. Q Did the vehicle stop? A Yes, sir, and after said vehicle stop[ped], I removed the cover of said vehicle and by so doing, I saw the aluminum wires. Q Before you saw the aluminum wires, did you talk to the accused? A Yes, sir, I asked him what his load was. Q What was the answer of Caballes? A He did not answer and I observed him to be pale, "nagpapamutla" ( sic), so I told him I will look at the contents of his vehicle and he answered in the positive. Q And after you saw for yourself the aluminum wires loaded on the jeep, what did you do?

A I asked him where those wires came from and he answered those came from the Cavinti area, sir."48 This Court is not unmindful of cases upholding the validity of consented warrantless searches and seizure. But in these cases, the police officers' request to search personnel effects was orally articulated to the accused and in such language that left no room for doubt that the latter fully understood what was requested. In some instance, the accused even verbally replied to the request demonstrating that he also understood the nature and consequences of such request. 49 In Asuncion vs. Court of Appeals,50 the apprehending officers sought the permission of petitioner to search the car, to which the latter agreed. Petitioner therein himself freely gave his consent to said search. In People vs. Lacerna,51 the appellants who were riding in a taxi were stopped by two policemen who asked permission to search the vehicle and the appellants readily agreed. In upholding the validity of the consented search, the Court held that appellant himself who was "urbanized in mannerism and speech" expressly said that he was consenting to the search as he allegedly had nothing to hide and had done nothing wrong. In People vs. Cuizon,52 the accused admitted that they signed a written permission stating that they freely consented to the search of their luggage by the NBI agents to determine if they were carrying shabu. In People vs. Montilla,53 it was held that the accused spontaneously performed affirmative acts of volition by himself opening the bag without being forced or intimidated to do so, which acts should properly be construed as a clear waiver of his right. In People vs. Omaweng,54 the police officers asked the accused if they could see the contents of his bag to which the accused said "you can see the contents but those are only clothings." Then the policemen asked if they could open and see it, and accused answered "you can see it." The Court said there was a valid consented search. In case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it is fundamental that to constitute a waiver, it must first appear that (1) the right exists; (2) that the person involved had knowledge, either actual or constructive, of the existence of such right; and (3) the said person had an actual intention to relinquish the right. 55 In the case at bar, the evidence is lacking that the petitioner intentionally surrendered his right against unreasonable searches. The manner by which the two police officers allegedly obtained the consent of petitioner for them to conduct the search leaves much to be desired. When petitioner's vehicle was flagged down, Sgt. Noceja approached petitioner and "told him I will look at the contents of his vehicle and he answered in the positive." We are hard put to believe that by uttering those words, the police officers were asking or requesting for permission that they be allowed to search the vehicle of petitioner. For all intents and purposes, they were informing, nay, imposing upon herein petitioner that they will search his vehicle. The "consent" given under intimidating or coercive circumstances is no consent within the purview of the constitutional guaranty. In addition, in cases where this Court upheld the validity of consented search, it will be noted that the police authorities expressly asked, in no uncertain terms, for the consent of the accused to be searched. And the consent of the accused was established by clear and positive proof. In the case of herein petitioner, the statements of the police officers were not asking for his consent; they were declaring to him that they will look inside his vehicle. Besides, it is doubtful whether permission was actually requested and granted because when Sgt. Noceja was asked during his direct examination what he did when the vehicle of petitioner stopped, he answered that he removed the cover of the vehicle and saw the aluminum wires. It was only after he was asked a clarificatory question that he added that he told petitioner he will inspect the vehicle. To our mind, this was more of an afterthought. Likewise, when Pat. de Castro was asked twice in his direct examination what they did when they stopped the jeepney, his consistent answer was that they searched the vehicle. He never testified that he asked petitioner for permission to conduct the search.56 Neither can petitioner's passive submission be construed as an implied acquiescence to the warrantless search. InPeople vs. Barros,57 appellant Barros, who was carrying a carton box, boarded a bus where two policemen were riding. The policemen inspected the carton and found marijuana inside. When asked who owned the box, appellant denied ownership of the box and failed to object to the search. The Court there struck down the warrantless search as illegal and held that the accused is not to be presumed to have waived the unlawful search conducted simply because he failed to object, citing the ruling in the case of People vs. Burgos,58 to wit:

"As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizens in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law." Casting aside the cable wires as evidence, the remaining evidence on record are insufficient to sustain petitioner's conviction. His guilt can only be established without violating the constitutional right of the accused against unreasonable search and seizure. WHEREFORE, the impugned decision is REVERSED and SET ASIDE, and accused Rudy Caballes is herebyACQUITTED of the crime charged. Cost de oficio. SO ORDERED.

G.R. No. 104961 October 7, 1994 CONGRESSMAN FRANCISCO B. ANIAG, JR., petitioner, vs. COMMISSION ON ELECTIONS and DEPARTMENT OF JUSTICE SPECIAL TASK FORCE, respondents.

BELLOSILLO, JR., J.: PETITIONER assails in this petition (for declaratory relief, certiorari and prohibition) the following resolutions of the COMELEC: Reso. No. 2327 dated 26 December 1991 for being unconstitutional, and Reso. No. 92-0829 dated 6 April 1992 and Reso. No. 92-0999 dated 23 April 1992, for want of legal and factual bases. The factual backdrop: In preparation for the synchronized national and local elections scheduled on 11 May 1992, the COMELEC issued on 11 December 1991 Resolution No. 2323 otherwise referred to as the "Gun Ban," promulgating rules and regulations on bearing, carrying and transporting of firearms or other deadly weapons, on security personnel or bodyguards, on bearing arms by members of security agencies or police organizations, and organization or maintenance of reaction forces during the election period. 1Subsequently, on 26 December 1991 COMELEC issued Resolution No. 2327 providing for the summary disqualification of candidates engaged in gunrunning, using and transporting of firearms, organizing special strike forces, and establishing spot checkpoints. 2 On 10 January 1992, pursuant to the "Gun Ban," Mr. Serapio P. Taccad, Sergeant-at-Arms, House of Representatives, wrote petitioner who was then Congressman of 1st District of Bulacan requesting the return of the 2 firearms 3 issued to him by the House of Representatives. Upon being advised of the request on 13 January 1992 by his staff, petitioner immediately instructed his driver, Ernesto Arellano, to pick up the firearms from petitioner's house at Valle Verde and return them to Congress. Meanwhile, at about five o'clock in the afternoon of the same day, the PNP headed by Senior Superintendent Danilo Cordero set up a checkpoint outside the Batasan Complex some 20 meters away from its entrance. About thirty minutes later, the policemen manning the outpost flagged down the car driven by Arellano as it approached the checkpoint. They searched the car and found the firearms neatly packed in their gun cases and placed in a bag in the trunk of the car. Arellano was then apprehended and detained. He explained that he was ordered by petitioner to get the firearms from the house and return them to Sergeant-at-Arms Taccad of the House of Representatives. Thereafter, the police referred Arellano's case to the OCP for inquest. The referral did not include petitioner as among those charged with an election offense. On 15 January 1992, the City Prosecutor ordered the release of Arellano after finding the latter's sworn explanation meritorious. 4 On 28 January 1992, the City Prosecutor invited petitioner to shed light on the circumstances mentioned in Arellano's sworn explanation. Petitioner not only appeared at the preliminary investigation to confirm Arellano's statement but also wrote the City Prosecutor urging him to exonerate Arellano. He explained that Arellano did not violate the firearms ban as he in fact was complying with it when apprehended by returning the firearms to Congress; and, that he was petitioner's driver, not a security officer nor a bodyguard. 5 On 6 March 1992, the Office of the City Prosecutor issued a resolution which, among other matters, recommended that the case against Arellano be dismissed and that the "unofficial" charge against petitioner be also dismissed. 6 Nevertheless, on 6 April 1992, upon recommendation of its Law Department, COMELEC issued Resolution No. 92-0829 directing the filing of information against petitioner and Arellano for violation of Sec. 261, par. (q), of B.P. Blg. 881 otherwise known as the Omnibus Election Code, in relation to Sec. 32 of R.A. No. 7166; 7 and petitioner to show cause why he should not be disqualified from running for an elective position, pursuant to COMELEC Resolution No. 2327, in relation to Sec. 32, 33 and 35 of R.A. 7166, andSec. 52, par. (c), of B.P. Blg. 881. 8 On 13 April 1992, petitioner moved for reconsideration and to hold in abeyance the administrative proceedings as well as the filing of the information in court. 9 On 23 April 1992, the COMELEC denied petitioner's motion for reconsideration. 10 Hence, this recourse. Petitioner questions the constitutionality of Resolution No. 2327. He argues that the rules and regulations of an administrative body must respect the limits defined by law; that the Omnibus Election Code provides for the disqualification of any person/candidate from running for or holding a public office, i.e., any person who has either been declared by competent authority as insane or incompetent or has been sentenced by final judgment for subversion, insurrection, rebellion or for any

offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude; that gunrunning, using or transporting firearms or similar weapons and other acts mentioned in the resolution are not within the letter or spirit of the provisions of the Code; that the resolution did away with the requirement of final conviction before the commission of certain offenses; that instead, it created a presumption of guilt as a candidate may be disqualified from office in situations (a) where the criminal charge is still pending, (b) where there is no pending criminal case, and (c) where the accused has already been acquitted, all contrary to the requisite quantum of proof for one to be disqualified from running or holding public office under the Omnibus Election Code, i.e., proof beyond reasonable doubt. As a result, petitioner concludes, Resolution No. 2327 violates the fundamental law thus rendering it fatally defective. But, the issue on the disqualification of petitioner from running in the 11 May 1992 synchronized elections was rendered moot when he lost his bid for a seat in Congress in the elections that ensued. Consequently, it is now futile to discuss the implications of the charge against him on his qualification to run for public office. However, there still remains an important question to be resolved, i.e., whether he can be validly prosecuted for instructing his driver to return to the Sergeant-at-Arms of the House of Representatives the two firearms issued to him on the basis of the evidence gathered from the warrantless search of his car. Petitioner strongly protests against the manner by which the PNP conducted the search. According to him, without a warrant and without informing the driver of his fundamental rights the policemen searched his car. The firearms were not tucked in the waist nor within the immediate reach of Arellano but were neatly packed in their gun cases and wrapped in a bag kept in the trunk of the car. Thus, the search of his car that yielded the evidence for the prosecution was clearly violative of Secs. 2 and 3, par. (2), Art. III, of the Constitution. 11 Petitioner further maintains that he was neither impleaded as party respondent in the preliminary investigation before the OCP nor included in the charge sheet. Consequently, making him a respondent in the criminal information would violate his constitutional right to due process. Petitioner disputes the charge that he violated Sec. 33 of R.A. 7166, which prohibits any candidate for public office during the election period from employing or availing himself or engaging the services of security personnel or bodyguards since, admittedly, Arellano was not a security officer or bodyguard but a civilian employee assigned to him as driver by the House of Representatives. Specifically, petitioner further argues, Arellano was instructed to return to Congress, as he did, the firearms in compliance with the directive of its Sergeant-at-Arms pursuant to the "Gun Ban," thus, no law was in fact violated. 12 On 25 June 1992, we required COMELEC to file its own comment on the petition 13 upon manifestation of the Solicitor General that it could not take the position of COMELEC and prayed instead to be excused from filing the required comment. 14 COMELEC claims that petitioner is charged with violation of Sec. 261, par. (q), in relation to Sec. 263, of B.P. Blg. 881 which provides that "the principals, accomplices and accessories, as defined in the Revised Penal Code, shall be criminally liable for election offenses." It points out that it was upon petitioner's instruction that Arellano brought the firearms in question outside petitioner's residence, submitting that his right to be heard was not violated as he was invited by the City Prosecutor to explain the circumstances regarding Arellano's possession of the firearms. Petitioner also filed a sworn written explanation about the incident. Finally, COMELEC claims that violation of the "Gun Ban" is mala prohibita, hence, the intention of the offender is immaterial. 15 Be that as it may, we find no need to delve into the alleged constitutional infirmity of Resolution No. 2327 since this petition may be resolved without passing upon this particular issue. 16 As a rule, a valid search must be authorized by a search warrant duly issued by an appropriate authority. However, this is not absolute. Aside from a search incident to a lawful arrest, a warrantless search had been upheld in cases of moving vehicles and the seizure of evidence in plain view, 17 as well as the search conducted at police or military checkpoints which we declared are not illegal per se, and stressed that the warrantless search is not violative of the Constitution for as long as the vehicle

is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is merely limited to a visual search. 18 Petitioner contends that the guns were not tucked in Arellano's waist nor placed within his reach, and that they were neatly packed in gun cases and placed inside a bag at the back of the car. Significantly, COMELEC did not rebut this claim. The records do not show that the manner by which the package was bundled led the PNP to suspect that it contained firearms. There was no mention either of any report regarding any nervous, suspicious or unnatural reaction from Arellano when the car was stopped and searched. Given these circumstances and relying on its visual observation, the PNP could not thoroughly search the car lawfully as well as the package without violating the constitutional injunction. An extensive search without warrant could only be resorted to if the officers conducting the search had reasonable or probable cause to believe before the search that either the motorist was a law offender or that they would find the instrumentality or evidence pertaining to the commission of a crime in the vehicle to be searched. 19 The existence of probable cause justifying the warrantless search is determined by the facts of each case. 20 Thus, we upheld the validity of the warrantless search in situations where the smell of marijuana emanated from a plastic bag owned by the accused, or where the accused was acting suspiciously, and attempted to flee. 21 We also recognize the stop-and-search without warrant conducted by police officers on the basis of prior confidential information which were reasonably corroborated by other attendant matters, e.g., where a confidential report that a sizeable volume of marijuana would be transported along the route where the search was conducted and appellants were caught in flagrante delicto transporting drugs at the time of their arrest; 22 where apart from the intelligence information, there were reports by an undercover "deep penetration" agent that appellants were bringing prohibited drugs into the country; 23 where the information that a Caucasian coming from Sagada bringing prohibited drugs was strengthened by the conspicuous bulge in accused's waistline, and his suspicious failure to produce his passport and other identification papers; 24 where the physical appearance of the accused fitted the description given in the confidential information about a woman transporting marijuana; 25 where the accused carrying a bulging black leather bag were suspiciously quiet and nervous when queried about its contents; 26 or where the identity of the drug courier was already established by police authorities who received confidential information about the probable arrival of accused on board one of the vessels arriving in Dumaguete City. 27 In the case at bench, we find that the checkpoint was set up 20 meters from the entrance to the Batasan Complex to enforce Resolution No. 2327. There was no evidence to show that the policemen were impelled to do so because of a confidential report leading them to reasonably believe that certain motorists matching the description furnished by their informant were engaged in gunrunning, transporting firearms or in organizing special strike forces. Nor, as adverted to earlier, was there any indication from the package or behavior of Arellano that could have triggered the suspicion of the policemen. Absent such justifying circumstances specifically pointing to the culpability of petitioner and Arellano, the search could not be valid. The action then of the policemen unreasonably intruded into petitioner's privacy and the security of his property, in violation of Sec. 2, Art. III, of the Constitution. Consequently, the firearms obtained in violation of petitioner's right against warrantless search cannot be admitted for any purpose in any proceeding. It may be argued that the seeming acquiescence of Arellano to the search constitutes an implied waiver of petitioner's right to question the reasonableness of the search of the vehicle and the seizure of the firearms. While Resolution No. 2327 authorized the setting up of checkpoints, it however stressed that "guidelines shall be made to ensure that no infringement of civil and political rights results from the implementation of this authority," and that "the places and manner of setting up of checkpoints shall be determined in consultation with the Committee on Firearms Ban and Security Personnel created under Sec. 5, Resolution No. 2323." 28 The facts show that PNP installed the checkpoint at about five o'clock in the afternoon of 13 January 1992. The search was made soon thereafter, or thirty minutes later. It was not shown that news of impending checkpoints without necessarily giving their locations, and the reason for the same have been announced in the media to forewarn the citizens. Nor did the informal checkpoint that afternoon carry signs informing the public of the purpose of its operation. As

a result, motorists passing that place did not have any inkling whatsoever about the reason behind the instant exercise. With the authorities in control to stop and search passing vehicles, the motorists did not have any choice but to submit to the PNP's scrutiny. Otherwise, any attempt to turnabout albeit innocent would raise suspicion and provide probable cause for the police to arrest the motorist and to conduct an extensive search of his vehicle. In the case of petitioner, only his driver was at the car at that time it was stopped for inspection. As conceded by COMELEC, driver Arellano did not know the purpose of the checkpoint. In the face of fourteen (14) armed policemen conducting the operation, 29 driver Arellano being alone and a mere employee of petitioner could not have marshalled the strength and the courage to protest against the extensive search conducted in the vehicle. In such scenario, the "implied acquiescence," if there was any, could not be more than a mere passive conformity on Arellano's part to the search, and "consent" given under intimidating or coercive circumstances is no consent within the purview of the constitutional guaranty. Moreover, the manner by which COMELEC proceeded against petitioner runs counter to the due process clause of the Constitution. The facts show that petitioner was not among those charged by the PNP with violation of the Omnibus Election Code. Nor was he subjected by the City Prosecutor to a preliminary investigation for such offense. The non-disclosure by the City Prosecutor to the petitioner that he was a respondent in the preliminary investigation is violative of due process which requires that the procedure established by law should be obeyed. 30 COMELEC argues that petitioner was given the change to be heard because he was invited to enlighten the City Prosecutor regarding the circumstances leading to the arrest of his driver, and that petitioner in fact submitted a sworn letter of explanation regarding the incident. This does not satisfy the requirement of due process the essence of which is the reasonable opportunity to be heard and to submit any evidence one may have in support of his defense. 31 Due process guarantees the observance of both substantive and procedural rights, whatever the source of such rights, be it the Constitution itself or only a statute or a rule of court. 32 In Go v. CA, 33 we held that While the right to preliminary investigation is statutory rather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of due process in criminal justice. The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty is not a mere formal or technical right; it is a substantive right . . . . [T]he right to an opportunity to avoid a process painful to anyone save, perhaps, to hardened criminals is a valuable right. To deny petitioner's claim to a preliminary investigation would be to deprive him of the full measure of his right to due process. Apparently, petitioner was merely invited during the preliminary investigation of Arellano to corroborate the latter's explanation. Petitioner then was made to believe that he was not a party respondent in the case, so that his written explanation on the incident was only intended to exculpate Arellano, not petitioner himself. Hence, it cannot be seriously contended that petitioner was fully given the opportunity to meet the accusation against him as he was not apprised that he was himself a respondent when he appeared before the City Prosecutor. Finally, it must be pointed out too that petitioner's filing of a motion for reconsideration with COMELEC cannot be considered as a waiver of his claim to a separate preliminary investigation for himself. The motion itself expresses petitioner's vigorous insistence on his right. Petitioner's protestation started as soon as he learned of his inclusion in the charge, and did not ease up even after COMELEC's denial of his motion for reconsideration. This is understandably so since the prohibition against carrying firearms bears the penalty of imprisonment of not less than one (1) year nor more than six (6) years without probation and with disqualification from holding public office, and deprivation of the right to suffrage. Against such strong stance, petitioner clearly did not waive his right to a preliminary investigation. WHEREFORE, the instant petition is GRANTED. The warrantless search conducted by the Philippine National Police on 13 January 1992 is declared illegal and the firearms seized during the warrantless search cannot be used as evidence in any proceeding against petitioner. Consequently, COMELEC Resolution No. 92-0829 dated 6 April 1992 being violative of the Constitution is SET ASIDE.

The temporary restraining order we issued on 5 May 1992 is made permanent. SO ORDERED. Separate Opinions CRUZ, J., concurring: I concur, and reiterate my objections to checkpoints in general as originally expressed in my dissent in the case ofValmonte v. De Villa, 178 SCRA 217, where I said: The sweeping statements in the majority opinion are as dangerous as the checkpoints it would sustain and fraught with serious threats to individual liberty. The bland declaration that individual rights must yield to the demands of national security ignores the fact that the Bill of Rights was intended precisely to limit the authority of the State even if asserted on the ground of national security. What is worse is that the searches and seizures are peremptorily pronounced to be reasonable even without proof of probable cause and much less the required warrant. The improbable excuse is that they are aimed at "establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the social, economic and political development of the National Capital Region." For these purposes, every individual may be stopped and searched at random and at any time simply because he excites the suspicion, caprice, hostility or malice of the officers manning the checkpoints, on pain of arrest or worse, even being shot to death, if he resists. xxx xxx xxx Unless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and the barbed wire, with the Court itself a captive of its own complaisance and sitting at the death-bed of liberty. I hope the colleagues I have behind on my retirement will reconsider the stand of the Court on checkpoints and finally dismantle them altogether as an affront to individual liberty. VITUG, J., concurring: The ultimate hypothesis of sound governance is not might but the willingness of the governed to accept and subordinate themselves to authority. When our people gave their consent to the fundamental law of the land, they did not renounce but, to the contrary, reserved for themselves certain rights that they held sacred and inviolable. One such right is the privilege to be so secured "in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose." Their sole conceded proviso to this rule is when a search warrant or a warrant of arrest is lawfully issued. There are, to be sure, known exceptions, predicated on necessity and justified by good reasons, when warrantless searches and seizures are allowed. It is in this context that I appreciate the ratio decidendi of the Court in Valmonte vs. De Villa (178 SCRA 211). In giving its imprimatur to the installation of checkpoints, the Court clearly has based its decision on the existence at the time of what has been so described as an "abnormal" situation that then prevailed. Evidently, the Court did not have the intention to have its ruling continue to apply to less aberrant circumstances than previously obtaining. The question has been asked: Between the security of the State and its due preservation, on the one hand, and the constitutionally-guaranteed right of an individual, on the other hand, which should be held to prevail? There is no choice to my mind not for any other reason than because there is, in the first place, utterly no need to make a choice. The two are not incompatible; neither are they necessarily opposed to each other. Both can be preserved; indeed, the vitality of one is the strength of the other. There should be ways to curb the ills of society so severe as they might seem. A disregard of constitutional mandates or an abuse on the citizenry, I am most certain, is not the answer. It might pay to listen to the words of Mr. Justice Isagani A. Cruz when he said, "(u)nless we are vigilant of our

rights, we may find ourselves back to the dark era of the truncheon and the barbed wire, with the Court itself a captive of its own complaisance and sitting at the death-bed of liberty." It is a welcome note that in the subsequent case of Bagalihog vs. Fernandez (198 SCRA 614), the Court has expressed: This guaranty is one of the greatest of individual liberties and was already recognized even during the days of the absolute monarchies, when the king could do no wrong. On this right, Cooley wrote: "Awe surrounded and majesty clothed the King, but the humblest subject might shut the door of his cottage against him and defend from intrusion that privacy which was as sacred as the kingly prerogatives. The provision protects not only those who appear to be innocent but also those who appear to be guilty but are nevertheless to be presumed innocent until the contrary is proved. The mere fact that in the private respondent's view the crime involved is "heinous" and the victim was "a man of consequence" did not authorize disregard of the constitutional guaranty. Neither did "superior orders" condone the omission for they could not in any case be superior to the Constitution. While it gives me great comfort to concur with my esteemed colleague, Mr. Justice Josue N. Bellosillo, in his ponencia, I would express, nonetheless, the humble view that even on the above constitutional aspect, the petition could rightly be granted. REGALADO, J., concurring and dissenting: I join Mr. Justice Davide, Jr. in his opinion wherein he concurs with the majority ruling that with respect to petitioner Aniag, Resolution No. 92-0829 of respondent commission should be set aside, not because of an unconstitutional warrantless search but by reason of the fact that he was not actually charged as a respondent in the preliminary investigation of the case. With regard to petitioner's driver, Ernesto Arellano, although he was not impleaded as a co-petitioner in the present recourse, the nullification of said Resolution No. 92-0829 necessarily applies to him and redounds to his benefit. To the extent, therefore, that the majority opinion thereby reinstate the resolution of the Office of the City Prosecutor dismissing the charge against Arellano, I concur in that result. However, even as a simple matter of consistency but more in point of law, I dissent from the rationale submitted therefor, that is, that Arellano was the victim of an unlawful search without a warrant. The pertinent facts stated by the majority readily yield the conclusion that there was consent on the part of Arellano to the search of the car then under his control, particularly of its baggage compartment where the firearms were discovered. As held in People vs. Excela, et al., 1 consent to a search may be given expressly or impliedly, and as early as People vs. Malasugui, 2 the settled rule is that a search may be validly conducted without a warrant if the person searched consented thereto. I would prefer to sustain the exoneration of Ernesto Arellano on the justifying circumstance that he was acting in obedience to what he innocently believed to be a lawful order of a superior, that is, the instructions of his employer, petitioner Aniag, who was himself acting upon and in compliance with Resolution No. 2323 of respondent commission which was implemented by the Sergeant-at-Arms of the House of Representatives. The said justifying circumstance provided in paragraph 6, Article 11 of the Revised Penal Code can be given suppletory effect to special laws like B.P. Blg. 881 and R.A. No. 7166 by force of Article 10 of the same Code. There is no prohibition therefor in the cited provisions of B.P. Blg. 881 in relation to R.A. No. 7166, nor is there any legal impossibility for such suppletory application whether by express provision or by necessary implication. And even if the order of petitioner Aniag may be considered as illegal, Arellano acted thereon in good faith 3 and under a mistake of fact as to its legality, hence his exculpation is ineludibly dictated. Ignorantia facti excusat. It being evident from the very records and the factual findings adopted in the majority opinion that no error was committed by the Office of the City Prosecutor in dismissing the charge against Ernesto Arellano for lack of sufficient grounds to engender a well founded belief that a crime had been committed and that he was probably guilty thereof, 4 respondent commission acted with grave abuse

of discretion in arriving at a contrary conclusion and directing his prosecution in its Resolution No. 920829. DAVIDE, JR., J., concurring and dissenting: I regret that I can concur only in the result, viz., the granting of the petition. Considering the specific issues raised by the petitioner which, as stated in the exordium of the majority opinion, are whether (a) COMELEC Resolution No. 2327, dated 26 December 1991, is unconstitutional, and (b) COMELEC Resolutions No. 92-0829, dated 6 April 1992, and No. 92-0999, dated 23 April 1992, have legal and factual bases, I am unable to agree with the specific disposition declaring (a) illegal the warrantless search conducted by the Philippine National Police (PNP) on 13 January 1992, (b) inadmissible in evidence in any proceeding against the petitioner the firearms seized during such warrantless search, and (c) unconstitutional COMELEC Resolution No. 92-0829. 1. Having declined to rule on the constitutionality of Resolution No. 2327 because "this petition may be resolved without passing upon this particular issue" (first paragraph, page 10, Ponencia), this Court may no longer inquire into the constitutionality of the spot checkpoints authorized to be established thereunder. And whether the warrantless search conducted by the PNP at the checkpoint was valid, it being assumed that it would have been, provided there existed a probable cause therefor, is a question of fact whose presentation in this case is either procedurally premature, or one which this Court cannot, with definiteness, resolve considering the obvious paucity of the facts before it. The most the majority opinion can state is that "[t]here was no evidence to show that the police were impelled to do so because of a confidential report leading them to reasonably believe that certain motorists matching the description furnished by their informant were engaged in gunrunning, transporting firearms or in organizing special strike forces. Nor, as adverted to earlier, was there any indication from the package or behavior of Arellano that could have triggered the suspicion of the policemen." Nothing more could be expected at this stage since the records of the proceedings conducted by the Office of the City Prosecutor and the COMELEC are not before this Court. A declaration of invalidity of the warrantless search and of the inadmissibility in evidence of the firearms seized would thus be premature. It may additionally be relevant to state that the search was not in connection with the crime of illegal possession of firearms, which would have been factually and legally baseless since the firearms involved were licensed and were duly issued to the petitioner by the House of Representatives, but for the violation of the gun ban which was validly decreed by the COMELEC pursuant to its constitutional power to enforce and administer all laws and regulations relative to the conduct of elections, plebiscite, initiative, referendum; and recall (Section 2(1), Article IX-C, 1987 Constitution), its statutory authority to have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly, and honest elections (Section 52, Omnibus Election Code), and its statutory authority to promulgate rules and regulations implementing the provisions of the Omnibus Election Code or other laws which the COMELEC is required to enforce and administer (Section 52(c), Id.; Section 35, R.A. No. 7166), in relation to paragraph (q), Section 261 of the Omnibus Election Code which prohibits the carrying of firearms outside the residence or place of business during the election period unless authorized in writing by the COMELEC, and Section 32 of R.A. No. 7166 which prohibits any person from bearing, carrying, or transporting firearms or other deadly weapons in public places, including any building, street, park, private vehicle, or public conveyance, even if such person is licensed to possess or carry the same during the election period, unless authorized in writing by the COMELEC. In this case, the petitioner himself admits that on 10 January 1992 he was requested by the Sergeantat-Arms of the House of Representatives to return the two firearms issued to him, and that on 13 January 1992, he instructed his driver, Ernesto Arellano, to pick up the firearms from his (petitioner's) house at Valle Verde and to return them to the House of Representatives. That day was already within the election period, which commenced the day earlier pursuant to COMELEC Resolution No. 2314 (In The Matter of Fixing The Schedule of Activities in Connection With the Elections of National and Local Officials on May 11, 1992), promulgated on 20 November 1991. Considering then that the offense for which he was to be charged was for the violation of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No. 7166, which, in view of his aforesaid

admissions, renders unnecessary the offer in evidence of the seized firearms, I fail to grasp the rationale of a ruling on the admissibility in evidence of the firearms. 2. COMELEC Resolution No. 92-0829, dated 6 April 1992, should not be set aside on the ground of unconstitutionality. It simply directed the filing of an information against the petitioner and Arellano for the violation of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No. 7166, and directed the petitioner to show cause why he should not be disqualified from running for an elective position, pursuant to COMELEC Resolution No. 2327, in relation to Sections 32, 33, and 35 of R.A. No. 7166 and paragraph (c), Section 52 of the Omnibus Election Code. Insofar as Arellano is concerned, he is not a petitioner in this case. Moreover, as to him, the resolution was nothing more than a disapproval of the recommendation of the Office of the City Prosecutor to dismiss the complaint against him. As against the petitioner, there was no denial of due process because the petitioner was later heard on his motion for reconsideration. Moreover, the right of an accused to a preliminary investigation is not a creation of the Constitution; its origin is statutory ( Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan ng Muntinglupa, Inc. vs. Dominguez , 205 SCRA 92 [1992]). The fatal flaw of Resolution No. 92-0829 lies in its directive to file the information against the petitioner despite the fact that he was never formally charged before the Office of the City Prosecutor. There was only an "'unofficial' charge imputed against" him. The COMELEC then acted with grave abuse of discretion amounting to want or excess of jurisdiction. I vote then to grant the petition, but solely on the ground that the COMELEC acted with grave abuse of discretion in directing the filing of an information against the petitioner for the violation of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No. 7166. Melo, J., concurs.