THIRD DIVISION

[G.R. No. 120915. April 13, 1998.]

THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . ROSA ARUTA

y MENGUIN , accused-appellant.

The Solicitor General for plaintiff-appellee.

Norberto de la Cruz for accused-appellant.

SYNOPSIS

Rosa Aruta was arrested, charged and then convicted with violation of Section 4,
Article II of the Dangerous Drugs Act. It appears that on December 13, 1998, P/Lt. Abello
was tipped off by his informant that a certain "Aling Rosa" would be arriving from Baguio
City the following day with a large volume of marijuana. Acting on said tip, a team was
assembled and proceeded to West Bajac-Bajac, Olongapo City. At around 4:00 P.M. of
December 14, 1988, when a bus stopped two females got off, the informant pointed out to
the team "Aling Rosa" who was then carrying a travelling bag. The team approached the
woman and introduced themselves as NARCOM agents. When they asked about the
contents of her bag, Aling Rosa handed it to them. Upon inspection, the bag was found to
contain dried marijuana leaves packed in a plastic bag. On trial, instead of presenting its
evidence, the defense led a "Demurrer to Evidence" alleging the illegality of the search and
seizure conducted. The same was denied without the trial court ruling on thereon. Instead,
the trial court continued to hear the case. But after the prosecution made a formal offer of
evidence, the defense led its Comment contesting the admissibility of the items seized
as they were allegedly a product of an unreasonable search and seizure. THAICD

A search may be conducted by law enforcers only on the strength of a search warrant
validly issued by a judge. Articles which are the product of unreasonable searches and
seizures are inadmissible as evidence. To legitimize the warrantless search and seizure
of accused-appellant's bag, she must have been validly arrested under Section 5 of Rule
113. However, accused-appellant cannot be said to be committing a crime. Neither
was she about to commit nor had she just committed a crime. It was only when the
informant pointed to accused-appellant and identi ed her as the carrier of the
marijuana that she was singled out as the suspect. This is a clear violation of the
constitutional guarantee against unreasonable search and seizure. Hence, the arrest
being incipiently illegal, it logically follows that the subsequent search was similarly
illegal, it being not incidental to a lawful arrest. As such, the articles seized could not be
used as evidence against accused-appellant. Also, her lack of objection to the search is
not tantamount to a voluntary submission to the warrantless search because to
constitute a waiver, there should be an actual intention to relinquish the right. HSaIDc

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE

SEARCH AND SEIZURE; NECESSITY OF SEARCH WARRANT OPERATIVE AGAINST
UNREASONABLE SEARCH AND SEIZURE. — A search may be conducted by law enforcers
CD Technologies Asia, Inc. 2018 cdasiaonline.com
 only on the strength of a search warrant validly issued by a judge as provided in Article III,
Section 2 of the Constitution. This constitutional guarantee however, is not a blanket
prohibition against all searches and seizures as it operates only against "unreasonable"
searches and seizures. The plain import of the language of the Constitution, which in one
sentence prohibits unreasonable searches and seizures and at the same time prescribes
the requisites for a valid warrant, is that searches and seizures are normally unreasonable
unless authorized by validly issued search warrant or warrant of arrest. Thus, the
fundamental protection accorded by the search and seizure clause is that between person
and police must stand the protective authority of a magistrate clothed with power to issue
or refuse to issue search warrants or warrants of arrest. Further, articles which are the
product of unreasonable searches and seizures are inadmissible as evidence. TAacCE

2. ID.; ID.; ID.; ID.; EXCEPTIONS TO THE REQUIREMENT OF WARRANT. — The State
cannot simply intrude indiscriminately into the houses, papers, effects, and most
importantly, on the person of the individual. The constitutional provision guaranteed an
impenetrable shield against unreasonable searches and seizures. As such, it protects the
privacy and sanctity of the person himself against unlawful arrest and other forms of
restraint. The right of a person to be secured against any unreasonable seizure of his body
and any deprivation of his liberty is a most basic and fundamental one. A statute, rule or
situation which allows exceptions to the requirement of a warrant of arrest or search
warrant must perforce be strictly construed and their application limited only to cases
speci cally provided or allowed by law. To do otherwise is an infringement upon personal
liberty and would set back a right so basic and deserving of full protection and vindication
yet often violated. The following cases are speci cally provided or allowed by law: 1.
Warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of
the Rules of Court and by prevailing jurisprudence; 2. Seizure of evidence in "plain view, "
the elements of which are: (a) a prior valid intrusion based on the valid warrantless arrest
in which the police are legally present in the pursuit of their o cial duties; (b) the evidence
was inadvertently discovered by the police who had the right to be where they are; (c) the
evidence must be immediately apparent, and (d) "plain view" justi ed mere seizure of
evidence without further search; 3. Search of a moving vehicle. Highly regulated by the
government, the vehicle's inherent mobility reduces expectation of privacy especially when
its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to
probable cause that the occupant committed a criminal activity; 4. Consented warrantless
search; 5. Customs search; 6. Stop and Frisk; and 7. Exigent and Emergency
Circumstances. cCSEaA

3. ID.; ID.; ID.; ID.; ID.; PROBABLE CAUSE, REQUIRED. — The exceptions should not
become unbridled licenses for law enforcement o cers to trample upon the
constitutionality guaranteed and more fundamental right of persons against unreasonable
search and seizures. The essential requisite of probable cause must still be satis ed
before a warrantless search and seizure can be lawfully conducted. Although probable
cause eludes exact and concrete de nition, it generally signi es a reasonable ground of
suspicion supported by circumstances su ciently strong in themselves to warrant a
cautious man to believe that the person accused is guilty of the offense with which he is
charged. It likewise refers to 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 item(s), article(s) or objects sought in connection with said
offense or subject to seizure and destruction by law is in the place to be searched. It ought
to be emphasized that in determining probable cause, the average man weighs facts and
circumstances without resorting to the calibrations of our rules of evidence of which his
CD Technologies Asia, Inc. 2018 cdasiaonline.com
 knowledge is technically nil. Rather, he relies on the calculus of common sense which all
reasonable men have in abundance. The same quantum of evidence is required in
determining probable cause relative to search. Before a search warrant can be issued, it
must be shown by substantial evidence that the items sought are in fact seizable by virtue
of being connected with criminal activity, and that the items will be found in the place to be
searched. In searches and seizures effected without a warrant, it is necessary for probable
to be present. Absent any probable cause, the article(s) seized could not be admitted and
used as evidence against the person arrested. Probable cause, in these cases, must only
be based on reasonable ground of suspicion or belief that a crime has been committed or
is about to be committed.
4. ID.; ID.; ID.; ID.; ID.; ID.; NOT PRESENT IN CASE AT BAR. — In the instant case, the
NARCOM agents were admittedly not armed with a warrant of arrest. To legitimize the
warrantless search and seizure of accused-appellant's bag, accused-appellant must have
been validly arrested under Section 5 of Rule 113. However, accused-appellant Aruta
cannot be said to be committing a crime. Neither was she about to commit one nor had
she just committed crime. Accused-appellant was merely crossing the street and was not
acting in any manner that would engender a reasonable ground for the NARCOM agents to
suspect and conclude that she was committing a crime. It was only when the informant
pointed to accused-appellant and identi ed her to the agents as the carrier of the
marijuana that she was singled out as the suspect. Consequently, there was no legal basis
for the NARCOM agents to effect a warrantless search of accused-appellant's bag, there
being no probable cause and the accused-appellant not having been lawfully arrested. The
constitutional guarantee against unreasonable search and seizure must perforce operate
in favor of accused-appellant. As such, the articles seized could not be used as evidence
against accused-appellant. The law requires that the search be incidental to a lawful arrest
in order that the search itself may likewise be considered legal. Therefore, it is beyond cavil
that a lawful arrest must precede the search of a person and hi belongings. Where a search
is rst undertaken, and an arrest effected based on evidence produced by the search, both
such search and arrest would be unlawful, for being contrary to law.
5. ID.; ID.; ID.; ID.; ID.; WAIVER TO THE UNREASONABLE SEARCH, NOT PRESENT IN
CASE AT BAR. — The act of herein accused-appellant in handling over her bag to the
NARCOM agents could not be construed as voluntary submission or an implied
acquiescence to the unreasonable search. While in principle we agree that the consent will
validate an otherwise illegal search, we believe that appellant — did not voluntarily consent
to the search of her belongings. Appellant's silence should not be lightly taken as consent
to such search. The implied acquiescence to the search, if there was any, could not have
been more than mere passive conformity given under intimidating or coercive
circumstances and is thus considered no consent at all within the purview of the
constitutional guarantee. Furthermore, considering that the search was conducted
irregularly, i.e., without a warrant, we cannot appreciate consent based merely on the
presumption of regularity of the performance of duty." Thus, accused-appellant's lack of
objection to the search is not tantamount to a waiver of her constitutional rights or a
voluntary submission to the warrantless search. To constitute a waiver, there should be an
actual intention to relinquish the right.
cCSEaA

6. ID.; ID.; ID.; ID.; SEARCH WARRANT; WANTING IN CASE AT BAR. — Search
warrants to be valid must particularly describe the place to be searched and the persons
or things to be seized. The purpose of this rule is to limit the things to those and only
those, particularly described in the warrant so as to leave the o cers of the law with no
discretion regarding what articles they shall seize to the end that unreasonable searches
CD Technologies Asia, Inc. 2018 cdasiaonline.com
 and seizures may not be made. Had the NARCOM agents only applied for a search warrant,
they could have secured one without too much di culty. The person intended to be
searched has been particularized and the thing to be seized speci ed. The time was also
su ciently ascertained. And in any case, this Court has held that the police should
particularly describe the place to be searched and the person or thing to be seized,
wherever and whenever it is feasible.
7. ID.; ID.; ID.; ID.; ID.; ID.; ENTERING A PLEA DURING ARRAIGNMENT AND ACTIVELY
PARTICIPATING IN TRIAL, NOT A WAIVER TO THE ILLEGAL SEARCH AND TO THE
INADMISSIBILITY OF THE EVIDENCE OBTAINED THEREIN. — While it may be argued that
by entering a plea during arraignment and by actively participating in the trial, accused-
appellant may be deemed to have waived objections to the illegality of the warrantless
search and to the inadmissibility of the evidence obtained thereby, the same may not apply
in the instant case for the following reasons: 1. The waiver would only apply to objections
pertaining to the illegality of the arrest as her plea of "not guilty" and participation in the
trial are indications of her voluntary submission to the court's jurisdiction. The plea and
active participation in the trial would not cure the illegality of the search and transform the
inadmissible evidence into objects of proof. The waiver simply does not extend this far. 2.
Granting that evidence obtained through a warrantless search becomes admissible upon
failure to object thereto during the trial of the case, records show that accused-appellant
led a Demurrer to Evidence and objected and opposed the prosecution's Formal Offer of
Evidence. AIHECa

DECISION

ROMERO , J : p

With the pervasive proliferation of illegal drugs and its pernicious effects on our
society, our law enforcers tend at times to overreach themselves in apprehending drug
offenders to the extent of failing to observe well-entrenched constitutional guarantees
against illegal searches and arrests. Consequently, drug offenders manage to evade the
clutches of the law on mere technicalities. LLjur

Accused-appellant Rosa Aruta y Menguin was arrested and charged with violating
Section 4, Article II of Republic Act No. 6425 or the Dangerous Drugs Act. The information
reads:
"That on or about the fourteenth (14th) day of December, 1988, in the City
of Olongapo, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, without being lawfully authorized, did then and there
willfully, unlawfully and knowingly engage in transporting approximately eight (8)
kilos and ve hundred (500) grams of dried marijuana packed in plastic bag
marked 'Cash Katutak' placed in a travelling bag, which are prohibited drugs."

Upon arraignment, she pleaded "not guilty." After trial on the merits, the Regional
Trial Court of Olongapo City convicted and sentenced her to suffer the penalty of life
imprisonment and to pay a fine of twenty thousand (P20,000.00) pesos. 1
The prosecution substantially relied on the testimonies of P/Lt. Ernesto Abello,
O cer-in-Charge of the Narcotics Command (NARCOM) of Olongapo City and P/Lt. Jose
Domingo. Based on their testimonies, the court a quo found the following:
CD Technologies Asia, Inc. 2018 cdasiaonline.com
 On December 13, 1988, P/Lt. Abello was tipped off by his informant, known only as
Benjie, that a certain "Aling Rosa" would be arriving from Baguio City the following day,
December 14, 1988, with a large volume of marijuana. Acting on said tip, P/Lt. Abello
assembled a team composed of P/Lt. Jose Domingo, Sgt. Angel Sudiacal, Sgt. Oscar
Imperial, Sgt. Danilo Santiago and Sgt. Efren Quirubin.
Said team proceeded to West Bajac-Bajac, Olongapo City at around 4:00 in the
afternoon of December 14, 1988 and deployed themselves near the Philippine National
Bank (PNB) building along Rizal Avenue and the Caltex gasoline station. Dividing
themselves into two groups, one group, made up of P/Lt. Abello, P/Lt. Domingo and the
informant posted themselves near the PNB building while the other group waited near the
Caltex gasoline station.
While thus positioned, a Victory Liner Bus with body number 474 and the letters
BGO printed on its front and back bumpers stopped in front of the PNB building at around
6:30 in the evening of the same day from where two females and a male got off. It was at
this stage that the informant pointed out to the team "Aling Rosa" who was then carrying a
travelling bag.
Having ascertained that accused-appellant was "Aling Rosa," the team approached
her and introduced themselves as NARCOM agents. When P/Lt. Abello asked "Aling Rosa"
about the contents of her bag, the latter handed it to the former.
Upon inspection, the bag was found to contain dried marijuana leaves packed in a
plastic bag marked "Cash Katutak." The team con scated the bag together with the
Victory Liner bus ticket to which Lt. Domingo a xed his signature. Accused-appellant was
then brought to the NARCOM o ce for investigation where a Receipt of Property Seized
was prepared for the confiscated marijuana leaves.
Upon examination of the seized marijuana specimen at the PC/INP Crime
Laboratory, Camp Olivas, Pampanga, P/Maj. Marlene Salangad, a Forensic Chemist,
prepared a Technical Report stating that said specimen yielded positive results for
marijuana, a prohibited drug.
After the presentation of the testimonies of the arresting o cers and of the above
technical report, the prosecution rested its case.
Instead of presenting its evidence, the defense led a "Demurrer to Evidence"
alleging the illegality of the search and seizure of the items thereby violating accused-
appellant's constitutional right against unreasonable search and seizure as well as their
inadmissibility in evidence.
The said "Demurrer to Evidence" was, however, denied without the trial court ruling
on the alleged illegality of the search and seizure and the inadmissibility in evidence of the
items seized to avoid pre-judgment. Instead, the trial court continued to hear the case.
In view of said denial, accused-appellant testi ed on her behalf. As expected, her
version of the incident differed from that of the prosecution. She claimed that immediately
prior to her arrest, she had just come from Choice Theater where she watched the movie
"Balweg." While about to cross the road, an old woman asked her help in carrying a
shoulder bag. In the middle of the road, Lt. Abello and Lt. Domingo arrested her and asked
her to go with them to the NARCOM Office.
During investigation at said o ce, she disclaimed any knowledge as to the identity
CD Technologies Asia, Inc. 2018 cdasiaonline.com
 of the woman and averred that the old woman was nowhere to be found after she was
arrested. Moreover, she added that no search warrant was shown to her by the arresting
officers.
After the prosecution made a formal offer of evidence, the defense led a
"Comment and/or Objection to Prosecution's Formal Offer of Evidence" contesting the
admissibility of the items seized as they were allegedly a product of an unreasonable
search and seizure.
Not convinced with her version of the incident, the Regional Trial Court of Olongapo
City convicted accused-appellant of transporting eight (8) kilos and ve hundred (500)
grams of marijuana from Baguio City to Olongapo City in violation of Section 4, Article 11
of R.A. No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972 and
sentenced her to life imprisonment and to pay a ne of twenty thousand (P20,000.00)
pesos without subsidiary imprisonment in case of insolvency. 2
In this appeal, accused-appellant submits the following:
1. The trial court erred in holding that the NARCOM agents could not apply
for a warrant for the search of a bus or a passenger who boarded a
bus because one of the requirements for applying a search warrant is
that the place to be searched must be speci cally designated and
described.
2. The trial court erred in holding or assuming that if a search warrant was
applied for by the NARCOM agents, still no court would issue a search
warrant for the reason that the same would be considered a general
search warrant which may be quashed.
3. The trial court erred in not nding that the warrantless search resulting to
the arrest of accused-appellant violated the latter's constitutional
rights.
4. The trial court erred in not holding that although the defense of denial is
weak yet the evidence of the prosecution is even weaker.
These submissions are impressed with merit.
I n People v. Ramos, 3 this Court held that a search may be conducted by law
enforcers only on the strength of a search warrant validly issued by a judge as provided in
Article III, Section 2 of the Constitution which provides:
"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 a rmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched
and the persons or things to be seized."

This constitutional guarantee is not a blanket prohibition against all searches and
seizures as it operates only against "unreasonable" searches and seizures. The plain
import of the language of the Constitution, which in one sentence prohibits unreasonable
searches and seizures and at the same time prescribes the requisites for a valid warrant, is
that searches and seizures are normally unreasonable unless authorized by a validly issued
CD Technologies Asia, Inc. 2018 cdasiaonline.com
 search warrant or warrant of arrest. Thus, the fundamental protection accorded by the
search and seizure clause is that between person and police must stand the protective
authority of a magistrate clothed with power to issue or refuse to issue search warrants or
warrants of arrest. 4
Further, articles which are the product of unreasonable searches and seizures are
inadmissible as evidence pursuant to the doctrine pronounced in Stonehill v. Diokno. 5 This
exclusionary rule was later enshrined in Article III, Section 3(2) of the Constitution, thus:
"SEC. 3(2). Any evidence obtained in violation of this or the preceding
section shall be inadmissible in evidence for any purpose in any proceeding."

From the foregoing, it can be said that the State cannot simply intrude
indiscriminately into the houses, papers, effects, and most importantly, on the person of an
individual. The constitutional provision guaranteed an impenetrable shield against
unreasonable searches and seizures. As such, it protects the privacy and sanctity of the
person himself against unlawful arrests and other forms of restraint. 6
Therewithal, the right of a person to be secured against any unreasonable seizure of
his body and any deprivation of his liberty is a most basic and fundamental one. A statute,
rule or situation which allows exceptions to the requirement of a warrant of arrest or
search warrant must perforce be strictly construed and their application limited only to
cases speci cally provided or allowed by law. To do otherwise is an infringement upon
personal liberty and would set back a right so basic and deserving of full protection and
vindication yet often violated. 7
The following cases are specifically provided or allowed by law:
1. Warrantless search incidental to a lawful arrest recognized under Section
12, Rule 126 of the Rules of Court 8 and by prevailing jurisprudence;
2. Seizure of evidence in "plain view," the elements of which are:
(a) a prior valid intrusion based on the valid warrantless arrest in
which the police are legally present in the pursuit of their official
duties;
(b) the evidence was inadvertently discovered by the police who had
the right to be where they are;
(c) the evidence must be immediately apparent, and
(d) "plain view" justi ed mere seizure of evidence without further
search;
3. Search of a moving vehicle. Highly regulated by the government, the
vehicle's inherent mobility reduces expectation of privacy especially
when its transit in public thoroughfares furnishes a highly reasonable
suspicion amounting to probable cause that the occupant committed
a criminal activity;
4. Consented warrantless search;
5. Customs search; 9
6. Stop and Frisk; 1 0 and
CD Technologies Asia, Inc. 2018 cdasiaonline.com
 7. Exigent and Emergency Circumstances. 1 1
The above exceptions, however, should not become unbridled licenses for law
enforcement o cers to trample upon the constitutionally guaranteed and more
fundamental right of persons against unreasonable search and seizures. The essential
requisite of probable cause must still be satis ed before a warrantless search and seizure
can be lawfully conducted.
Although probable cause eludes exact and concrete definition, it generally signifies a
reasonable ground of suspicion supported by circumstances su ciently strong in
themselves to warrant a cautious man to believe that the person accused is guilty of the
offense with which he is charged. It likewise refers to 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 item(s), article(s) or object(s) sought in
connection with said offense or subject to seizure and destruction by law is in the place to
be searched. 1 2
It ought to be emphasized that in determining probable cause, the average man
weighs facts and circumstances without resorting to the calibrations of our rules of
evidence of which his knowledge is technically nil. Rather, he relies on the calculus of
common sense which all reasonable men have in abundance. The same quantum of
evidence is required in determining probable cause relative to search. Before a search
warrant can be issued, it must be shown by substantial evidence that the items sought are
in fact seizable by virtue of being connected with criminal activity, and that the items will
be found in the place to be searched. 1 3
In searches and seizures effected without a warrant, it is necessary for probable
cause to be present. Absent any probable cause, the article(s) seized could not be
admitted and used as evidence against the person arrested. Probable cause, in these
cases, must only be based on reasonable ground of suspicion or belief that a crime has
been committed or is about to be committed.
In our jurisprudence, there are instances where information has become a su cient
probable cause to effect a warrantless search and seizure.
I n People v. Tangliben, 1 4 acting on information supplied by informers, police
officers conducted a surveillance at the Victory Liner Terminal compound in San Fernando,
Pampanga against persons who may commit misdemeanors and also on those who may
be engaging in the tra c of dangerous drugs. At 9:30 in the evening, the policemen
noticed a person carrying a red travelling bag who was acting suspiciously. They
confronted him and requested him to open his bag but he refused. He acceded later on
when the policemen identi ed themselves. Inside the bag were marijuana leaves wrapped
in a plastic wrapper. The police o cers only knew of the activities of Tangliben on the
night of his arrest.
In instant case, the apprehending o cers already had prior knowledge from their
informant regarding Aruta's alleged activities. In Tangliben policemen were confronted
with an on-the-spot tip. Moreover, the policemen knew that the Victory Liner compound is
being used by drug tra ckers as their "business address". More signi cantly, Tangliben
was acting suspiciously. His actuations and surrounding circumstances led the policemen
to reasonably suspect that Tangliben is committing a crime. In instant case, there is no
single indication that Aruta was acting suspiciously.

CD Technologies Asia, Inc. 2018 cdasiaonline.com

 In People v. Malmstedt, 1 5 the Narcom agents received reports that vehicles coming
from Sagada were transporting marijuana. They likewise received information that a
Caucasian coming from Sagada had prohibited drugs on his person. There was no
reasonable time to obtain a search warrant, especially since the identity of the suspect
could not be readily ascertained. His actuations also aroused the suspicion of the o cers
conducting the operation. The Court held that in light of such circumstances, to deprive the
agents of the ability and facility to act promptly, including a search without a warrant,
would be to sanction impotence and ineffectiveness in law enforcement, to the detriment
of society.
Note, however, the glaring differences of Malmstedt to the instant case. In present
case, the police o cers had reasonable time within which to secure a search warrant.
Second, Aruta's identity was priorly ascertained. Third, Aruta was not acting suspiciously.
Fourth, Malmstedt was searched aboard a moving vehicle, a legally accepted exception to
the warrant requirement. Aruta, on the other hand, was searched while about to cross a
street.
I n People v. Bagista, 1 6 the NARCOM o cers had probable cause to stop and
search all vehicles coming from the north to Acop, Tublay, Benguet in view of the
con dential information they received from their regular informant that a woman having
the same appearance as that of accused-appellant would be bringing marijuana from up
north. They likewise had probable cause to search accused-appellant's belongings since
she tted the description given by the NARCOM informant. Since there was a valid
warrantless search by the NARCOM agents, any evidence obtained in the course of said
search is admissible against accused-appellant. Again, this case differs from Aruta as this
involves a search of a moving vehicle plus the fact that the police o cers erected a
checkpoint. Both are exceptions to the requirements of a search warrant.
I n Manalili v. Court of Appeals and People, 1 7 the policemen conducted a
surveillance in an area of the Kalookan Cemetery based on information that drug addicts
were roaming therein. Upon reaching the place, they chanced upon a man in front of the
cemetery who appeared to be "high" on drugs. He was observed to have reddish eyes and
to be walking in a swaying manner. Moreover, he appeared to be trying to avoid the
policemen. When approached and asked what he was holding in his hands, he tried to
resist. When he showed his wallet, it contained marijuana. The Court held that the
policemen had su cient reason to accost accused-appellant to determine if he was
actually "high" on drugs due to his suspicious actuations, coupled with the fact that based
on information, this area was a haven for drug addicts.
In all the abovecited cases, there was information received which became the bases
for conducting the warrantless search. Furthermore, additional factors and circumstances
were present which, when taken together with the information, constituted probable
causes which justified the warrantless searches and seizures in each of the cases.
In the instant case, the determination of the absence or existence of probable cause
necessitates a reexamination of the facts. The following have been established: (1) In the
morning of December 13, 1988, the law enforcement officers received information from an
informant named "Benjie" that a certain "Aling Rosa" would be leaving for Baguio City on
December 14, 1988 and would be back in the afternoon of the same day carrying with her
a large volume of marijuana; (2) At 6:30 in the evening of December 14, 1988, accused-
appellant alighted from a Victory Liner Bus carrying a travelling bag even as the informant
pointed her out to the law enforcement o cers; (3) The law enforcement o cers
CD Technologies Asia, Inc. 2018 cdasiaonline.com
 approached her and introduced themselves as NARCOM agents; (4) When asked by Lt.
Abello about the contents of her travelling bag, she gave the same to him; (5) When they
opened the same, they found dried marijuana leaves; (6) Accused-appellant was then
brought to the NARCOM office for investigation.
This case is similar to People v. Aminnudin where the police received information
two days before the arrival of Aminnudin that the latter would be arriving from Iloilo on
board the M/V Wilcon 9. His name was known, the vehicle was identi ed and the date of
arrival was certain. From the information they had received, the police could have
persuaded a judge that there was probable cause, indeed, to justify the issuance of a
warrant. Instead of securing a warrant rst, they proceeded to apprehend Aminnudin.
When the case was brought before this Court, the arrest was held to be illegal; hence any
item seized from Aminnudin could not be used against him.
Another recent case is People v. Encinada where the police likewise received
con dential information the day before at 4:00 in the afternoon from their informant that
Encinada would be bringing in marijuana from Cebu City on board M/V Sweet Pearl at 7:00
in the morning of the following day. This intelligence information regarding the culprit's
identity, the particular crime he allegedly committed and his exact whereabouts could have
been a basis of probable cause for the lawmen to secure a warrant. This Court held that in
accordance with Administrative Circular No. 13 and Circular No. 19, series of 1987, the
lawmen could have applied for a warrant even after court hours. The failure or neglect to
secure one cannot serve as an excuse for violating Encinada's constitutional right.
In the instant case, the NARCOM agents were admittedly not armed with a warrant
of arrest. To legitimize the warrantless search and seizure of accused-appellant's bag,
accused-appellant must have been validly arrested under Section 5 of Rule 113 which
provides inter alia:
"SEC. 5. Arrest without warrant; when lawful. — A peace o cer or a private
person may, without a warrant, arrest a person:

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

actually committing, or is attempting to commit an offense;
xxx xxx xxx"

Accused-appellant Aruta cannot be said to be committing a crime. Neither was she

about to commit one nor had she just committed a crime. Accused-appellant was merely
crossing the street and was not acting in any manner that would engender a reasonable
ground for the NARCOM agents to suspect and conclude that she was committing a
crime. It was only when the informant pointed to accused-appellant and identi ed her to
the agents as the carrier of the marijuana that she was singled out as the suspect. The
NARCOM agents would not have apprehended accused-appellant were it not for the furtive
nger of the informant because, as clearly illustrated by the evidence on record, there was
no reason whatsoever for them to suspect that accused-appellant was committing a
crime, except for the pointing nger of the informant. This the Court could neither sanction
nor tolerate as it is a clear violation of the constitutional guarantee against unreasonable
search and seizure. Neither was there any semblance of any compliance with the rigid
requirements of probable cause and warrantless arrests.
Consequently, there was no legal basis for the NARCOM agents to effect a
warrantless search of accused-appellant's bag, there being no probable cause and the
accused-appellant not having been lawfully arrested. Stated otherwise, the arrest being
CD Technologies Asia, Inc. 2018 cdasiaonline.com
 incipiently illegal, it logically follows that the subsequent search was similarly illegal, it
being not incidental to a lawful arrest. The constitutional guarantee against unreasonable
search and seizure must perforce operate in favor of accused-appellant. As such, the
articles seized could not be used as evidence against accused-appellant for these are
"fruits of a poisoned tree" and, therefore, must be rejected, pursuant to Article III, Sec. 3(2)
of the Constitution.
Emphasis is to be laid on the fact that the law requires that the search be incidental
to a lawful arrest, in order that the search itself may likewise be considered legal.
Therefore, it is beyond cavil that a lawful arrest must precede the search of a person and
his belongings. Where a search is rst undertaken, and an arrest effected based on
evidence produced by the search, both such search and arrest would be unlawful, for being
contrary to law. 1 8
As previously discussed, the case in point is People v. Aminnudin 19 where, this
Court observed that:
". . . accused-appellant was not, at the moment of his arrest, committing a
crime nor was it shown that he was about to do so or that he had just done so.
What he was doing was descending the gangplank of the M/V Wilcon 9 and there
was no outward indication that called for his arrest. To all appearances, he was
like any of the other passengers innocently disembarking from the vessel. It was
only when the informer pointed to him as the carrier of the marijuana that he
suddenly became suspect and so subject to apprehension. It was the furtive
finger that triggered his arrest. The identification by the informer was the probable
cause as determined by the o cers (and not a judge) that authorized them to
pounce upon Aminnudin and immediately arrest him."

In the absence of probable cause to effect a valid and legal warrantless arrest, the
search and seizure of accused-appellant's bag would also not be justi ed as seizure of
evidence in " plain view" under the second exception. The marijuana was obviously not
immediately apparent as shown by the fact that the NARCOM agents still had to request
accused-appellant to open the bag to ascertain its contents.
Neither would the search and seizure of accused-appellant's bag be justi ed as a
search of a moving vehicle. There was no moving vehicle to speak of in the instant case as
accused-appellant was apprehended several minutes after alighting from the Victory Liner
bus. In fact, she was accosted in the middle of the street and not while inside the vehicle.
People v. Solayao, 2 0 applied the stop and frisk principle which has been adopted in
Posadas v. Court of Appeals. 2 1 In said case, Solayao attempted to ee when he and his
companions were accosted by government agents. In the instant case, there was no
observable manifestation that could have aroused the suspicion of the NARCOM agents as
to cause them to "stop and frisk" accused-appellant. To reiterate, accused-appellant was
merely crossing the street when apprehended. Unlike in the abovementioned cases,
accused-appellant never attempted to ee from the NARCOM agents when the latter
identi ed themselves as such. Clearly, this is another indication of the paucity of probable
cause that would su ciently provoke a suspicion that accused-appellant was committing
a crime. LLjur

The warrantless search and seizure could not likewise be categorized under exigent
and emergency circumstances, as applied in People v. De Gracia. 2 2 In said case, there
were intelligence reports that the building was being used as headquarters by the RAM
during a coup d'etat. A surveillance team was red at by a group of armed men coming out
CD Technologies Asia, Inc. 2018 cdasiaonline.com
 of the building and the occupants of said building refused to open the door despite
repeated requests. There were large quantities of explosives and ammunitions inside the
building. Nearby courts were closed and general chaos and disorder prevailed. The
existing circumstances su ciently showed that a crime was being committed. In short,
there was probable cause to effect a warrantless search of the building. The same could
not be said in the instant case.
The only other exception that could possibly legitimize the warrantless search and
seizure would be consent given by the accused-appellant to the warrantless search as to
amount to a waiver of her constitutional right. The Solicitor General argues that accused-
appellant voluntarily submitted herself to search and inspection citing People v. Malasugui
2 3 where this Court ruled:

"When one voluntarily submits to a search or consents to have it made on

his person or premises, he is precluded from complaining later thereof. (Cooley,
Constitutional Limitations, 8th ed., [V]ol. I, p. 631.) The right to be secure from
unreasonable search may, like every right, be waived and such waiver may be
made either expressly or impliedly."

In support of said argument, the Solicitor General cited the testimony of Lt. Abello,
thus:
"Q When this informant by the name of alias Benjie pointed to Aling Rosa, what
happened after that?

A We followed her and introduced ourselves as NARCOM agents and confronted

her with our informant and asked her what she was carrying and if we can
see the bag she was carrying.
Q What was her reaction?

A She gave her bag to me.

Q So what happened after she gave the bag to you?

A I opened it and found out plastic bags of marijuana inside." 2 4

This Court cannot agree with the Solicitor General's contention for the Malasugui
case is inapplicable to the instant case. In said case, there was probable cause for the
warrantless arrest thereby making the warrantless search effected immediately thereafter
equally lawful. 2 5 On the contrary, the most essential element of probable cause, as
expounded above in detail, is wanting in the instant case making the warrantless arrest
unjusti ed and illegal. Accordingly, the search which accompanied the warrantless arrest
was likewise unjusti ed and illegal. Thus, all the articles seized from the accused-appellant
could not be used as evidence against her.
Aside from the inapplicability of the abovecited case, the act of herein accused-
appellant in handing over her bag to the NARCOM agents could not be construed as
voluntary submission or an implied acquiescence to the unreasonable search. The instant
case is similar to People v. Encinada, 2 6 where this Court held:
"[T]he Republic's counsel avers that appellant voluntarily handed the chairs
containing the package of marijuana to the arresting o cer and thus effectively
waived his right against the warrantless search. This he gleaned from Bolonia's
testimony.

CD Technologies Asia, Inc. 2018 cdasiaonline.com

 Q: After Roel Encinada alighted from the motor tricycle, what happened next?
A: I requested to him to see his chairs that he carried.

Q: Are you referring to the two plastic chairs?

A: Yes, sir.

Q: By the way, when Roel Encinada agreed to allow you to examine the two chairs
that he carried, what did you do next?
A: I examined the chairs and I noticed that something inside in between the two
chairs."

We are not convinced. While in principle we agree that consent will validate an
otherwise illegal search, we believe that appellant — based on the transcript quoted above
— did not voluntarily consent to Bolonia's search of his belongings . Appellant's silence
should not be lightly taken as consent to such search. The implied acquiescence to the
search, if there was any, could not have been more than mere passive conformity given
under intimidating or coercive circumstances and is thus considered no consent at all
within the purview of the constitutional guarantee. Furthermore, considering that the
search was conducted irregularly, i.e., without a warrant, we cannot appreciate consent
based merely on the presumption of regularity of the performance of duty." (Emphasis
supplied)
Thus, accused-appellant's lack of objection to the search is not tantamount to a
waiver of her constitutional rights or a voluntary submission to the warrantless search. As
this Court held in People v. Barros: 2 7
". . . [T]he accused is not to be presumed to have waived the unlawful
search conducted on the occasion of his warrantless arrest "simply because he
failed to object" —

". . . To constitute a waiver, it must appear rst that the right exists;
secondly, that the person involved had knowledge, actual or constructive,
of the existence of such right; and lastly, that said person had an actual
intention to relinquish the right (Pasion Vda. de Garcia v. Locsin, 65 Phil.
698). The fact that the accused failed to object to the entry into his house
does not amount to a permission to make a search therein (Magoncia v.
Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the case of
Pasion Vda. de Garcia v. Locsin (supra):
'xxx xxx xxx

. . . As the constitutional guaranty is not dependent upon any

a rmative act of the citizen, the courts do not place the citizen in the
position of either contesting an o cer'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.' (Citation omitted).

We apply the rule that: 'courts indulge every reasonable presumption

against waiver of fundamental constitutional rights and that we do not presume
acquiescence in the loss of fundamental rights.'" 2 8 (Emphasis supplied)
To repeat, to constitute a waiver, there should be an actual intention to relinquish the
right. As clearly illustrated in People v. Omaweng , 2 9 where prosecution witness Joseph
CD Technologies Asia, Inc. 2018 cdasiaonline.com
 Layong testified thus:
"PROSECUTOR AYOCHOK:

Q When you and David Fomocod saw the travelling bag, what did you do?
A When we saw that travelling bag, we asked the driver if we could see the
contents.
Q And what did or what was the reply of the driver, if there was any?
A He said ''you can see the contents but those are only clothings (sic).'

Q When he said that, what did you do?

A We asked him if we could open and see it.

Q When you said that, what did he tell you?

A He said ' you can see it.'

Q And when he said 'you can see and open it,' what did you do?

A When I went inside and opened the bag, I saw that it was not clothings (sic) that
was contained in the bag.

Q And when you saw that it was not clothings (sic), what did you do?
A When I saw that the contents were not clothes, I took some of the contents and
showed it to my companion Fomocod and when Fomocod smelled it, he
said it was marijuana." (Emphasis supplied)
In the above-mentioned case, accused was not subjected to any search which may
be stigmatized as a violation of his Constitutional right against unreasonable searches and
seizures. If one had been made, this Court would be the rst to condemn it "as the
protection of the citizen and the maintenance of his constitutional rights is one of the
highest duties and privileges of the Court." He willingly gave prior consent to the search
and voluntarily agreed to have it conducted on his vehicle and traveling bag, which is not
the case with Aruta.
In an attempt to further justify the warrantless search, the Solicitor General next
argues that the police o cers would have encountered di culty in securing a search
warrant as it could be secured only if accused-appellant's name was known, the vehicle
identi ed and the date of its arrival certain, as in the Aminnudin case where the arresting
officers had forty-eight hours within which to act.
This argument is untenable.
ARTICLE IV, SECTION 3 of the Constitution provides:
". . . [N]o search warrant or warrant of arrest shall issue except upon
probable cause to be determined by the judge, or such other responsible o cer as
may be authorized by law, after examination under oath or a rmation 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." (Emphasis supplied)
Search warrants to be valid must particularly describe the place to be searched and
the persons or things to be seized. The purpose of this rule is to limit the things to be
CD Technologies Asia, Inc. 2018 cdasiaonline.com
 seized to those and only those, particularly described in the warrant so as to leave the
o cers of the law with no discretion regarding what articles they shall seize to the end
that unreasonable searches and seizures may not be made. 3 0
Had the NARCOM agents only applied for a search warrant, they could have secured
one without too much di culty, contrary to the assertions of the Solicitor General. The
person intended to be searched has been particularized and the thing to be seized
speci ed. The time was also su ciently ascertained to be in the afternoon of December
14, 1988. "Aling Rosa" turned out to be accused-appellant and the thing to be seized was
marijuana. The vehicle was identi ed to be a Victory Liner bus. In fact, the NARCOM agents
purposely positioned themselves near the spot where Victory Liner buses normally unload
their passengers. Assuming that the NARCOM agents failed to particularize the vehicle,
this would not in any way hinder them from securing a search warrant. The above
particulars would have already su ced. In any case, this Court has held that the police
should particularly describe the place to be searched and the person or things to be
seized, wherever and whenever it is feasible. 3 1 (Emphasis supplied)
While it may be argued that by entering a plea during arraignment and by actively
participating in the trial, accused-appellant may be deemed to have waived objections to
the illegality of the warrantless search and to the inadmissibility of the evidence obtained
thereby, the same may not apply in the instant case for the following reasons:
1. The waiver would only apply to objections pertaining to the illegality of the
arrest as her plea of "not guilty" and participation in the trial are
indications of her voluntary submission to the court's jurisdiction. 3 2
The plea and active participation in the trial would not cure the
illegality of the search and transform the inadmissible evidence into
objects of proof. The waiver simply does not extend this far.
2. Granting that evidence obtained through a warrantless search becomes
admissible upon failure to object thereto during the trial of the case,
records show that accused-appellant led a Demurrer to Evidence
and objected and opposed the prosecution's Formal Offer of
Evidence.
It is apropos to quote the case of People v. Barros, 3 3 which stated:
"It might be supposed that the non-admissibility of evidence secured
through an invalid warrantless arrest or a warrantless search and seizure may be
waived by an accused person. The a priori argument is that the invalidity of an
unjusti ed warrantless arrest, or an arrest effected with a detective warrant of
arrest may be waived by applying for and posting of bail for provisional liberty, so
as to estop an accused from questioning the legality or constitutionality of his
detention or the failure to accord him a preliminary investigation. We do not
believe, however, that waiver of the latter necessarily constitutes, or carries with it,
waiver of the former — an argument that the Solicitor General appears to be
making impliedly. Waiver of the non-admissibility of the " fruits" of an invalid
warrantless arrest and of a warrantless search and seizure is not casually to be
presumed, if the constitutional right against unlawful searches and seizures is to
retain its vitality for the protection of our people. In the case at bar, defense
counsel had expressly objected on constitutional grounds to the admission of the
carton box and the four (4) kilos of marijuana when these were formally offered
in evidence by the prosecution. We consider that appellant's objection to the
admission of such evidence was made clearly and seasonably and that, under the
CD Technologies Asia, Inc. 2018 cdasiaonline.com
 circumstances, no intent to waive his rights under the premises can be reasonably
inferred from his conduct before or during the trial."(Emphasis supplied)
In ne, there was really no excuse for the NARCOM agents not to procure a search
warrant considering that they had more than twenty-four hours to do so. Obviously, this is
again an instance of seizure of the "fruit of the poisonous tree," hence illegal and
inadmissible subsequently in evidence.
The exclusion of such evidence is the only practical means of enforcing the
constitutional injunction against unreasonable searches and seizure. The non-exclusionary
rule is contrary to the letter and spirit of the prohibition against unreasonable searches and
seizures. 3 4
While conceding that the o cer making the unlawful search and seizure may be held
criminally and civilly liable, the Stonehill case observed that most jurisdictions have
realized that the exclusionary rule is "the only practical means of enforcing the
constitutional injunction" against abuse. This approach is based on the justi cation made
by Judge Learned Hand that "only in case the prosecution which itself controls the seizing
officials, knows that it cannot profit by their wrong, will the wrong be repressed." 3 5
Unreasonable searches and seizures are the menace against which the
constitutional guarantees afford full protection. While the power to search and seize may
at times be necessary to the public welfare, still it may be exercised and the law enforced
without transgressing the constitutional rights of the citizens, for the enforcement of no
statute is of su cient importance to justify indifference to the basic principles of
government. 3 6
Those who are supposed to enforce the law are not justi ed in disregarding the
rights of the individual in the name of order. Order is too high a price to pay for the loss of
liberty. As Justice Holmes declared: "I think it is less evil that some criminals escape than
that the government should play an ignoble part." It is simply not allowed in free society to
violate a law to enforce another, especially if the law violated is the Constitution itself. 3 7
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court,
Branch 73, Olongapo City, is hereby REVERSED and SET ASIDE. For lack of evidence to
establish her guilt beyond reasonable doubt, accused-appellant ROSA ARUTA Y MENGUIN
is hereby ACQUITTED and ordered RELEASED from con nement unless she is being held
for some other legal grounds. No costs.
SO ORDERED. LLjur

Narvasa, C .J ., Kapunan and Purisima, JJ ., concur.

Footnotes

1. Decision penned by Judge Alicia L. Santos.

2. Decision, Rollo, p. 49.

3. 222 SCRA 557 [1993].

4. Bernas, The Constitution of the Republic of the Philippines, A Commentary, 1987, First ed.,
pp. 85-86.
5. 20 SCRA 383 [1967].
CD Technologies Asia, Inc. 2018 cdasiaonline.com
 6. Bernas, Joaquin G., The 1987 Constitution of the Republic of the Philippines: A Commentary,
1996 ed., pp. 147-148.

7. People v. Argawanon, 215 SCRA 652 [1992].

8. "Search incident to lawful arrest. — A person lawfully arrested may be searched for
dangerous weapons or anything which may be used as proof of the commission of an
offense, without a search warrant."

9. Padilla v. CA and People, G.R. No. 121917, March 12, 1997.

10. People v. Solayao, 262 SCRA 255 [1996].

11. People v. De Gracia, 233 SCRA 716 [1994].

12. People v. Encinada, G.R. No. 116720, October 2, 1997.

13. Webb v. De Leon, 247 SCRA 652 [1995].

14. 184 SCRA 220 [1990].

15. 198 SCRA 401 [1991].

16. 214 SCRA 63 [1992].

17. G.R. No. 113447, October 9, 1997.

18. People v. Cuizon, 256 SCRA 325 [1996].

19. 163 SCRA 402 [1988].

20. 262 SCRA 255 [1996].

21. 188 SCRA 288 [1990].

22. 233 SCRA 716 [1994].

23. 63 Phil. 221 [1936].

24. TSN, June 14, 1989, p. 6.

25. Supra.

26. G.R. No. 116720, October 2, 1997.

27. 231 SCRA 557 [1994].

28. Supra, citing Johnson v. Zerbst, 304 U.S. 458.

29. 213 SCRA 462 [1992].

30. Herrera, Oscar, A Handbook on Arrest, Search and Seizure and Custodial Investigation, 1994
ed., p. 60.

31. People v. Veloso, 48 Phil. 169 [1925].

32. People v. De Guzman, 224 SCRA 93 [1993], People v. De Guia , 227 SCRA 614 [1993], People
v. De Guzman , 231 SCRA 737 [1994], People v. Correa , G.R. No. 119246, January 30,
1998.

33. Supra.

CD Technologies Asia, Inc. 2018 cdasiaonline.com

 34. Stonehill v. Diokno, 20 SCRA 383 [1967].
35. Cruz, I. A., Constitutional Law, 1991 ed., p. 148.

36. Pamaran, The 1985 Rules on Criminal Procedure, Annotated, 1995 ed., p. 526 citing
Rodriguez v. Villamiel, 65 Phil. 230 and Alvarez v. CFI of Tayabas, 64 Phil. 33.
37. People v. Aminnudin, supra.

CD Technologies Asia, Inc. 2018 cdasiaonline.com