EN BANC
G.R. No. 123872 January 30, 1998
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RUBEN MONTILLA y GATDULA, accused-appellant.
Separate Opinions
PANGANIBAN, J., separate opinion:
I agree with the respected Mr. Justice Florenz D. Regalado that the imposition of the death penalty by the trial court upon Appellant Montilla was erroneous. For want of any aggravating circumstance attending the commission of the crime, the proper penalty is reclusion perpetua.
However, I beg to disagree with his conclusion that the warrantless search conducted upon the person of appellant was valid for being "a search incidental to a lawful arrest under Section 5(a), Rule 113 of the Rules of Court." Under the cited provisions, an arrest may be lawfully effected upon a person caught in flagrante delicto, i.e. in the very act of committing a crime. 1 I do not see how Appellant Montilla who was apprehended while merely alighting from a passenger jeepney carrying a traveling bag and a carton could have been perceived by the police as committing a crime at the very moment of his arrest.
Lawful Arrest Must
Precede Warrantless Search
In the very recent en banc case of Malacat vs. Court of Appeals,2 the Court through Mr. Justice Hilario G. Davide Jr., clearly and unanimously explained the concept of a search incidental to a lawful arrest, and I quote:
In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used as a pretext for conducting a search. In this instance, the law requires that there be first a lawful arrest before a search can be made — the process cannot be reversed. At bottom, assuming a valid arrest, the arresting officer may search the person of the arrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and seize any money or property found which was used in the commission of the crime, or the fruit of the crime, or that which may be used as evidence, or which might furnish the arrestee with the means of escaping or committing violence.3 [Emphasis supplied.]
In that case, a police surveillance team, dispatched on reports of a possible bombing in Quiapo, arrested Appellant Malacat after he attempted to flee. He was priorly observed standing with a group of men at the corner of Plaza Miranda and Quezon Boulevard with eyes moving very fast and looking at every approaching person. He was searched, and allegedly recovered from his body was a bomb. The trial court justified his arrest and search on the finding that he was "attempting to commit a crime." But we reversed and ruled that there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in light of the lack of personal knowledge on the part of the arresting officer or an overt physical act on the part of Malacat indicating that a crime had just been committed, was being committed, or was going to be committed. The warrantless arrest being invalid, the search conducted upon the petitioner could not have been a valid incident to a lawful arrest.
In also ruling our a valid "stop and frisk," the Court remarked that "there was nothing in [Malacat's] behavior or conduct which could have reasonably elicited even mere suspicion other than that his eyes were 'moving very fast' . . ." There was no ground at all to suspect that Malacat was armed with a deadly weapon.4
Neither did this Court find a valid search and arrest under in flagrante delicto rule in People vs. Mengote,5 even though the appellant was accosted by the police because he allegedly appeared suspicious. The lawmen were at the time conducting a surveillance in response to a telephone call from an informer that there were suspicious-looking persons at the particular place. What offense Mengote was suspected of doing could not even be ascertained by the police. We said that "there was nothing to support the arresting officer's suspicion other than Mengote's darting eyes and his hand on his abdomen. By no stretch of the imagination could it have been inferred from these acts that an offense had just been committed, or was actually being committed, or was at least being attempted in their presence."6 The Court further exhorted:
It would be a sad day, indeed, if any person could be summarily arrested and searched just because he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a peace officer could clamp handcuffs on any person with a shifty look on suspicion that he may have committed a criminal act or is actually committing or attempting it. This simply cannot be done in a free society. This is not a police state where order is exalted over liberty or, worse, personal malice on the part of the arresting officer may be justified in the name of security.7
Personal Knowledge Required in
in Flagrante Delicto Arrests
Jurisprudence is settled that under the in flagrante delicto rule, "the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personal knowledge of that fact. The offense must also be committed in his presence or within his view."8
The circumstances of the case at bar is patently wanting in fulfillment of the above standard. For one, the arresting officers had no personal knowledge that Montilla either had just committed or was committing or attempting to commit an offense. Secondly, even if we equate the possession of an intelligence report with personal knowledge of the commission of a crime, still, the alleged felonious act was not performed in the presence or within the view of the arresting officers. The lawmen did not see appellant exhibit any overt act or strange conduct that would reasonably arouse in their minds suspicion that he was embarking on some felonious enterprise. Neither was there any mention at all by the police of any outward indication, such as bulkiness on his body that could have suggested that he was carrying a firearm, or any peculiar smell emanating from his baggage that could have hinted that he was carrying marijuana. In short, there was no valid ground for the warrantless arrest.
"Hot Pursuit" Doctrine
Not Applicable
Parenthetically, neither could Appellant Montilla's arrest be justified under the "hot pursuit" rule. In People vs. Burgos,9 we said:
In arrests without a warrant under Section 6(b) [of Rule 113, Rules of Court], however, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. That a crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator.
The instant case is very similar to People vs. Aminnudin,10 Therein, the police arrested Aminnudin and seized the bag he was carrying on account of a "tip they had earlier received from a reliable and regular informer" that the accused-appellant was "arriving in Iloilo by boat with marijuana." This information was received at least two days earlier, thus "[e]ven expediency could not be invoked to dispense with the obtention of the warrant . . ." In invalidating his arrest, this Court reasoned:
. . . the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that 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 by the officers (not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him. 11
Aminnudin's arrest being illegal, so was the warrantless search subsequent thereto, the Court ruled. Hence, the marijuana allegedly seized from him was not admitted as evidence for being a fruit of the poisonous tree.
Another parallel case is People vs. Encinada,12 where the appellant was searched without a warrant while also disembarking from a ship, on the strength of a tip from an informant received by the police the previous afternoon that the appellant would be transporting prohibited drugs. The search yielded a plastic package containing marijuana. Encinada's arrest and search were validated by the trial court under the in flagrante delicto rule. In reversing the trial court, this Court stressed that when he disembarked from the ship or while he rode the motorela, Encinada did not manifest any suspicious behavior that would reasonably invite the attention of the police. Under such bare circumstances, no act or fact demonstrating a felonious enterprise could be ascribed to the accused. In short, he was not committing a crime in the presence of the police; neither did the latter have personal knowledge of facts indicating that he just committed an offense. Where the search was illegal, there could be no valid incidental arrest:
. . . That the search disclosed a prohibited substance in appellant's possession and thus confirmed the police officers' initial information and suspicion, did not cure its patent illegality. An illegal search cannot be undertaken and then an arrest effected on the strength of the evidence yielded by the search.13
Raw Intelligence Information
Cannot Justify Warrantless Arrest
The Court further said that raw intelligence information was not a sufficient ground for a warrantless arrest.14 Having known the identity of their suspect the previous day, the law enforcers could have secured a judicial warrant even within such limited period.
Under the circumstances of the instant case, there was sufficient time for the police to have applied for a search warrant.ℒαwρhi৷ The information that appellant would be arriving in the early morning of June 20, 1994 at Barangay Salitran, Dasmariñas, Cavite, was received by the police at 2:00 p.m. of the preceding day. The fact that it was a Sunday did not prevent the police from securing a warrant. Administrative Circulars 13 and 19, s. 1987 allow applications for search warrants even "after office hours, or during Saturdays, Sundays and legal holidays" where there is an urgency and prompt action is needed. Surely, with the attendant circumstances, the arresting officers could have easily justified the urgency of the issuance of a search warrant.
But the majority believes that the law enforcers had no sufficient information upon which the warrant could have been validly issued, simply because the name of the suspect and the exact time and place where he could be found were not known.
I cannot in clear conscience agree with the reasoning of the majority that "[on] such bare information, the police authorities could not have properly applied for a warrant, assuming that they could readily have access to a judge or court . . . ," yet ruling that "there were sufficient facts antecedent to the search and seizure that, at the point prior to the search, were already constitutive of probable cause, and which by themselves could properly create in the minds of the officers a well-grounded and reasonable belief that appellant was in the act of violating the law." Be it remembered that appellant was merely alighting from a jeepney carrying a traveling bag and a carton when he was searched and arrested. How can that be "in the act of violating the law?"
Law and jurisprudence in fact require stricter grounds for valid arrests and searches without warrant than for the issuance of warrants therefor. In the former, the arresting person must have actually witnessed the crime being committed or attempted by the person sought to be arrested; or he must have personal knowledge of facts indicating that the person to be arrested perpetrated the crime that had just occurred. In the latter case, the judge simply determines personally from testimonies of witnesses that there exists reasonable grounds to believe that a crime was committed by the accused.
If, as the majority believes, the police did not have on hand what the law requires for the issuance of a warrant, then much less did they have any justification for a warrantless arrest. In other words, what ground did the police have to arrest Appellant Montilla?
I submit that if the police doubts the exact identity or name of the person to be arrested or the exact place to be searched, with more reason should they seek a judge's independent determination of the existence of probable cause. The police, in such instances, cannot take the law into their own hands, or by themselves conclude that probable cause exists. I must reiterate that the actual discovery of prohibited drugs in the possession of the accused does not cure the illegality of his arrest or search.
To say that "reliable tips" constitute probable cause for a warrantless arrest or search is, in my opinion, a dangerous precedent and places in great jeopardy the doctrines laid down in many decisions made by this Court, in its effort to zealously guard and protect the sacred constitutional right against unreasonable arrests, searches, and seizures. Everyone would be practically at the mercy of so-called informants, reminiscent of the makapilis during the Japanese occupation. Any one whom they point out to a police officer as a possible violator of the law could then be subject to search and possible arrest. This is placing limitless power upon informants who will no longer be required to affirm under oath their accusations, for they can always delay their giving of tips in order to justify warrantless arrests and searches. Even law enforcers can use this as an oppressive tool to conduct searches without warrants, for they can always claim that they received raw intelligence information only on the day or afternoon before. This would clearly be a circumvention of the legal requisites for validly effecting an arrest or conducting a search and seizure. Indeed, the majority's ruling would open loopholes that would allow unreasonable arrests, searches and seizures.
The majority's reasoning effectively abrogates, through an obiter, doctrinal rules on warrantless arrests and searches. I believe this should not be allowed. We have endlessly castigated law enforcers for their nonchalant violation of the people's constitutional right against unreasonable searches and seizures. We have also invariably admonished them that basic rights should not be lightly disregarded in the name of crime prevention or law enforcement. The Court should never be less vigilant in protecting the rights guaranteed by the fundamental law to all persons, be they innocent or guilty.
Appellant Waived his
Constitutional Right
In any event, notwithstanding the illegality with which the search and arrest of Appellant Montilla was effected, I have to concur with the majority in affirming his conviction, only for the reason that appellant waived his right to object to such illegality. It appears that he did not protest when the police, after identifying themselves, asked him to open his baggage for inspection. The fact that he voluntarily submitted to the search, without any force or intimidation on the part of the police, signifies his consent thereto. Voluntary consent is a valid waiver of one's right against unreasonable searches.15
Furthermore, upon arraignment, Appellant Montilla pleaded not the guilty and proceeded to participate in the trial. Established jurisprudence holds that a plea is tantamount to foregoing an objection to the irregularity of one's arrest.16 The right to question the legality of appellant's arrest may therefore be deemed to have been waived by him.
Summation
IN SUM, the arrest of Appellant Montilla was not lawful, because it was effected without a judicial warrant. It was not made in accordance with Sec. 5(a) of Rule 113, because there was no evidence that Montilla had just committed an offense, or was committing or attempting one in the presence or within the view of the arresting officers at the time he was apprehended. Neither can his arrest be valid under Sec. 5(b) of the same rule, since the police officers did not actually know that a crime had in fact been committed, nor did they have personal knowledge of any fact logically pointing to appellant as the perpetrator thereof. Much less could there have been a valid stop-and-frisk, since appellant did not manifest any dubious act or show any indication that could reasonably invite suspicion of a criminal undertaking.
However, appellant waived his right to object to the illegality of his search and arrest by consenting to the search of his belongings and also by entering his plea during his arraignment. Had he raised a timely objection against the violation of his constitutional right, he would, in my view, deserve no less than an acquittal.
WHEREFORE, I conclude that the warrantless arrest and search of Appellant Montilla was illegal. However, such illegality was effectively waived by him. Hence, I vote to AFFIRM his conviction with the modification that he shall serve the penalty of reclusion perpetua only.
Melo and Puno, JJ., concur.
VITUG, J., concurring:
I concur but I reserve my vote on the discussion on the warrantless search upon appellant as being incidental to a lawful arrest.
Footnotes
1 Moreno, Philippine Law Dictionary, 2nd ed.
2 G.R. No. 123595, December 12, 1997.
3 Ibid., p. 13. (Citations omitted.)
4 Ibid., pp. 15-16.
5 210 SCRA 174, June 22, 1992, per Cruz, J.
6 Ibid., p. 180.
7 Ibid., pp. 181-182.
8 People vs. Burgos, 144 SCRA 1, 14, September 4, 1986, per Gutierrez Jr., J., citing Sayo vs. Chief of Police, 80 Phil. 859, May 12, 1948. See also People vs. Pablo, 239 SCRA 500, 505, December 28, 1994.
9 Ibid., p. 15.
10 163 SCRA 402, July 6, 1988, per Cruz, J.
11 Ibid., p. 409-410.
12 G.R. No. 116720, October 2, 1997, per Panganiban, J.
13 Ibid., p. 24.
14 Ibid., p. 17.
15 People vs. Lacerna, G.R. No. 109250, September 5, 1997, citing People vs. Fernandez, 239 SCRA 174, December 13, 1994, Aniag vs. Comelec, 237 SCRA 424, October 7, 1994, and other cases.
16 People vs. Lopez Jr., 245 SCRA 95, June 16, 1995; People vs. Macam, 238 SCRA 306, November 24, 1994.
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