SECOND DIVISION
[ G.R. No. 144037, September 26, 2003 ]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. NOEL TUDTUD Y PAYPA AND DINDO BOLONG Y NARET, ACCUSED-APPELLANTS.
QUISUMBING, J.,
DISSENTING OPINION
I respectfully differ from the majority of my brethren on this case. I vote to sustain the decision1 dated March 8, 2000, the Regional Trial Court of Davao City, Branch 17, which convicted in Criminal Case No. 43,817-99 appellants Noel Tudtud y Paypa and Dindo Bolong2 y Naret, and imposed upon each of them the penalty of reclusion perpetua and a fine of P500,000, for illegal possession of prohibited drugs.
For emphasis, I quote hereunder the information against the appellants filed by the prosecution:
That on or about August 1, 1999, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, conspiring, confederating together and helping one another, willfully, unlawfully and feloniously and with intent to possess and without being authorized by law had in their possession two (2) packages of Marijuana leaves and stems with leaves, weighing 890 grams and 3.2 kgs. More or less, respectively, which are prohibited drugs.
CONTRARY TO LAW.3
There is no doubt in my mind that appellants are guilty of the illegal possession of prohibited drugs found by the police inside their carton box. The facts and the law support the findings of the trial court, leading to the conviction of as well the penalty imposed upon appellants.
Allow me to restate the facts and my reasons for this dissent.
Sometime in the months of July and August 1999, PO1 Ronald Desierto assigned at Police Precinct 8, Toril, Davao City, received a tip from their "civilian asset," Bobong Solier, that appellant Noel Tudtud was involved in the prohibited drug trade. According to Solier, Tudtud got his stocks of marijuana from Cotabato. The information was entered in the police blotter,4 after which PO1 Desierto and other members of the Intelligence Section of Toril Precinct 8 conducted surveillance on Tudtud for five (5) days.5 Gathering information from other secret informants in the vicinity and from Tudtud's neighbors, Solier's tip to the police was validated.6
In the morning of August 1, 1999, Bobong Solier informed Precinct 8 officers that appellant Tudtud went on another trip to Cotabato and was expected to arrive in the afternoon of the same day with a load of marijuana.7 A team was immediately formed, which included PO1 Ronald Desierto, SPO1 Villanueva8 and PO1 Ramil Floreta. They posted themselves at the corner of Saypon, MacArthur Highway, Toril, Davao City.9 They waited from 4:00 p.m. until 8:00 p.m. when a Weena bus stopped and appellants disembarked.10 Tudtud alighted holding a plastic bag with his right hand while his left hand was holding a carton box with the markings "King Flakes." Appellant Bolong helped Tudtud carry the carton box with his right hand.11
PO1 Desierto and Floreta approached appellants and identified themselves as police officers.12 For security purposes, SPO1 Villanueva stood ten (10) meters away from them.13 PO1 Desierto and Floreta told appellants that they received information of the arrival of illegal drugs. They requested appellants if they could be allowed to see the contents of the carton box. Appellant Tudtud said "okay" and opened the carton box himself.14 PO1 Desierto and Floreta saw dried sliced fish on top of the carton box. PO1 Desierto requested Tudtud to take the dried sliced fish out of the carton box.15 Inside the box, something was wrapped in a striped plastic bag, while another bundle was wrapped in a newspaper. PO1 Desierto again requested Tudtud to open the striped plastic bag and the bundle wrapped in newspaper. When appellant Tudtud opened the striped plastic bag, PO1 Desierto and Floreta saw leaves, which appeared to be marijuana.16 Likewise, the contents of the bundle wrapped with newspaper revealed what appeared to be marijuana stalks with leaves.17
Appellants, who did not resist arrest, were forthwith informed of their right to counsel and to remain silent. They were brought to the police station where the foregoing incident was recorded in the police blotter.18
The seized packages of suspected marijuana, weighing 820 grams and 3.2 kilograms, were referred to the PNP Crime Laboratory, Region XI, Davao City, for examination. The forensic result revealed that the dried leaves were indeed marijuana.19
For his defense, appellant NOEL TUDTUD testified that in the morning of August 1, 1999, he left for Kabacan, North Cotabato to sell ten pieces of Levis20 maong pants to students at the University of Southern Mindanao.21 He left for Davao City in the afternoon, taking the Weena bus crossing Bayabas and arrived at Toril at about 8:30 p.m., where he alighted before going to his residence at Sapa, Crossing Bayabas, Toril, Davao City. After the bus left, somebody whom he later identified as PO1 Desierto aimed a gun at him and ordered him to open a box, which yielded marijuana leaves. He denied carrying said carton box or knowing its contents but despite his pleas he was handcuffed and brought to the Toril Police Station along with somebody whom he had never met before, herein co-appellant Dindo Bolong,
In his own testimony, co-appellant DINDO BOLONG likewise denied knowing Noel Tudtud. He too, disclaimed any knowledge of a carton box containing the subject marijuana. He denied having carried said carton box together with his co-appellants. He narrated that on August 1, 1999, he went to Hagonoy, Davao del Sur, to do an errand for his cousin who was about to get married. In the afternoon of that day, he boarded a Weena bus going back to Calinan, Davao City, but decided to drop by at Toril, Davao City, to meet a relative. When he alighted at the crossing of Bayabas and Toril in Davao City, at about 8:30 p.m., he and another man, herein appellant Tudtud, were apprehended by a man who handcuffed them. They were at once brought together to the Toril Police Station.
In its decision dated March 8, 2000, the trial court disbelieved the version of the defense and gave credence to the testimony of the apprehending officers, as corroborated by the Philippine National Police forensic chemist. The trial court found appellants guilty, as follows:
WHEREFORE, finding the evidence of prosecution more than sufficient to prove the guilt of both accused of the offense charged beyond reasonable doubt, pursuant to the provision of Sec. 8, Art. 11 of the Republic Act 6575, as amended by Republic Act 7659, Sec. 20 Art. 4, without any aggravating nor mitigating circumstances attendant in the commission of the offense charged, both above-named accused, Noel Tudtud y Paypa and Dindo Bolong y Naret, are sentenced to suffer an imprisonment of reclusion perpetua, together with all accessory penalty as provided for by law and to pay a fine of P500,000.00 in favor of the government.
The confiscated subject marijuana dried leaves, placed in a carton box with name "King Flakes" marked Exh. "A" and "B" for the prosecution, are ordered confiscated in favor of the government, and are turn-over (sic) to the Office of the Narcotics Command, Davao City, for its immediate destruction through burning, as the circumstances, will warrant.
SO ORDERED.22
Hence, the present appeal before us. Appellant Noel Tudtud assigned in his Brief several errors.23
On July 19, 2001, appellant Dindo Bolong filed a manifestation, adopting appellant Tuftud's brief as his own.24
In our view, the resolution of this appeal hinges on the following issues: (1) whether the warrantless arrest, search and seizure effected by the police officer are unlawful; (2) whether the prosecution's evidence suffices to sustain a finding of guilt with moral certainty; and (3) whether the penalty of reclusion perpetua and the fine of P500,000 imposed on each appellant are proper.
On the first issue, appellants content that the warrantless arrest of appellants and the search and seizure of the marijuana leaves were irregular, hence, unlawful. They claim that the marijuana allegedly seized from them was a product of an illegal search, hence, inadmissible in evidence.
The Office of the Solicitor General (OSG), however, argues that the findings and conclusions of the trial court should be sustained. According to the OSG, the law permits the warrantless search and seizure of the marijuana as an incident to a lawful arrest. I am squarely in agreement with the OSG's submission.
The validity of the warrantless arrest and the search made by the police upon the persons of appellants, as well as the seizure of the marijuana leaves, as herein presented, is no longer a matter of first impression. Jurisprudence is replete with cases on this score.
Section 2, Article III of the Constitution, ordains that a search and seizure must be carried out through or on the strength of a judicial warrant, absent which such search and seizure becomes "unreasonable"25 and that evidence secured on the occasion of such an unreasonable search and seizure shall be inadmissible in evidence for any purpose in any proceeding.26 But this exclusionary rule is not, however, an absolute and rigid proscription. Section 5(a), Rule 113 of the Rules of Court27 provides one such exception where a peace officer or a private person may, without a warrant, arrest a person when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. In the case at hand, appellants were caught in flagrante delicto, since they were carrying marijuana at the time of their arrest. A warrantless arrest, under this circumstance, is legitimate. It also necessarily cloaks the arresting police officer with authority to search and seize from the offender contraband or prohibited material and whatever may be used as proof of the offense being committed.
However, the instances of permissible arrests set out in Section 5(a) of Rule 113, do not dispense with the requisite probable cause before a warrantless search and seizure can be lawfully conducted. In these cases, probable cause must only be based on reasonable ground of suspicion or belief that a crime has been committed or is about to be committed.28 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.
In this case, I note that the arresting officers personally verified the information tipped to them by their civilian informant concerning appellant Tudtud's drug trafficking activities. After receiving this information from Solier, PO1 Desierto and other members of the Intelligence Section of Toril Precinct, conducted surveillance operations on appellants for five (5) days and confirmed the tip.29 Having verified Solier's data, the police officers had personal knowledge of the probable cause to believe the subsequent tip-off in the morning of August 1, 1999 that on that day, Tudtud was on another trip to Cotabato to replenish his stocks of marijuana and was expected to arrive in the afternoon of the same day.30 Further, the informant described in detail the personal circumstances of appellant Tudtud, i.e. that he was short, burly, and usually wore a baseball cap. PO1 Desierto and his team already had leases as to the identity of the person they were looking for.31 It was indubitable, therefore, that the police team of PO1 Desierto had probable cause to search appellant Tudtud's belongings since he fitted the description given by the civilian asset.32
The warrantless search and seizure is further justified by lack of material time to apply for a search warrant. Faced with such on-the-spot information that Tudtud would arrive that same day with the prohibited drugs, the law enforcers had to respond quickly. As often said, it is necessary to adopt a realistic appreciation of the physical and tactical problems of the police, instead of critically viewing them from the placid and clinical environment of judicial chambers,33 if courts of justice wish to be of understanding assistance to law enforcement agencies in the fight against crime.
Moreover, appellants consented to the search in this case. This, to me, is established not merely from the words but the actions taken hereon. When the officers approached appellants, they formally introduced themselves as policemen. They inquired from appellants about the contents of their luggage, and requested appellant Tudtud to open the box. Although trembling, appellant Tuftuf agreed to the request.34 Neither did appellant Bolong resist the search. In People v. Cuizon,35 we held that illegal drugs discovered as a result of consented search is admissible in evidence. And, in People v. Montilla,36 when an individual voluntarily submits to a search or consents to have the same conducted upon his person or premises, he is precluded from later complaining thereof.
Circumstances considered, I believe that there was a valid warrantless search by the police officer. Any evidence obtained during the course of said search is admissible in evidence against appellants1aшphi1.
On the second issue, I concur in the trial court's conclusion that the prosecution has proved appellant's guilt for violation of Section 837 of the Dangerous Drugs Act beyond reasonable doubt, for the following reasons:
The elements of illegal possession of marijuana are: (a) the accused is in possession of an item or object which is identified to be a prohibited drug; (b) such possession is not authorized by law; and (c) the accused freely and consciously possessed the said drug.38
The identity of either appellant as a possessor of the seized marijuana leaves is not at issue. Both were caught in flagrante delicto in a standard police operation.1aшphi1 The substance found in appellants' possession was identified after laboratory analysis by Philippine National Police forensic chemist Noemi Austero to be marijuana.39 Appellants' lack of authority to possess these items was also established.
Appellants' awareness of the prohibited drug's character is also irrefutable. When stopped by the policemen, appellant Tudtud was holding the plastic bag in one hand and a carton box in his other hand, with appellant Bolong was helping him in carrying said box. Irrefutably, appellants' animus possidendi existed together with the possession or control of said articles. Recently, in People v. Tee,40 we held that possession of a prohibited drug per se constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused absent a satisfactory explanation of such possession. In effect, the onus probandi must be shifted to the accused to explain the absence of knowledge or consciousness of the element of possession of the contraband, i.e. his animus possidendi.41 Appellants, in this case, have failed to discharge this exculpatory burden.
The conspiracy to commit the offense between appellants Noel Tudtud and Dindo Bolong clearly appears from the records. They were apprehended at the same time. They alighted together from the bus at the highway corner of Toril, Davao City. Appellant Bolong was helping his co-appellant Tudtud carry the "King Flakes" carton box, which contained what turned out to be a large quantity of dried marijuana leaves covered by dried fish and concealed in plastic and newspaper wrapper. These factors convince me that indeed the two appellants had conspired together and helped each other in the commission of the offense.
As the trial court explained, the frame-up angle in this case that appellants wish to peddle in their defense does not inspire belief. Like alibi, the defense of frame-up is viewed with disfavor, because it is easily concocted. It is a common and standard line of defense in cases arising from violations of the Dangerous Drugs Act.42 Appellant Tudtud's alibi that he came from Kabacan, North Cotabato, where he sold Levis jeans, is uncorroborated. In his memorandum, he referred to Exh. "F," claiming that the apprehending officers had confiscated the six pants then in his possession,43 although Exh. "F" refers to the entry in the police blotter on the arrest of both appellants, with no mention of a plastic bag containing 6 Levis jeans.44 In the same vein, the defense of appellant Dindo Bolong, that he took the bus from Hagonoy, Davao del Sur, after delivering invitations for his cousin's wedding, remains a bare allegation that is not substantiated. The version of the incident by the police officers, coming as it did from law enforcers presumed to have regularly performed their duty in the absence of proof to the contrary,45 and accepted as credible by the trial court, has not been discredited at all by appellants who claimed a frame-up without sufficient bases.
Appellants next assail the credibility of the civilian informant, witness Bobong Solier, on the ground that various informations and complaints had been filed against him in the City Court and Regional Trial Court off Davao City. But it should be stressed that witness Solier's testimony is not essential for the conviction of the appellants. Testimony of the police informant in an illegal drug case is merely cumulative and corroborative of the apprehending officers' eyewitness testimonies.46 Moreover, Solier's tip-off was not the sole basis for the police operation in this case as there was prior surveillance conducted by the police. As it stands, Solier's testimony merely buttressed the case for the prosecution.
The investigative including laboratory procedures adopted in this regard by Chief Inspector Noemi Austero are being criticized by appellants. They lament that the Duquenois Levine Test conducted by Austero at the PNP Crime Laboratory on the confiscated leaves was inconclusive in regard to determining whether the confiscated items were indeed marijuana, absent any confirmatory or other tests. However, nothing on record effectively negates the finding of the trial court that the test was regularly performed. The trial court's evaluation of the credibility of witnesses and their testimonies is entitled to great respect and will not be disturbed on appeal, unless there appears on record some facts of weight and substance that have been overlooked, misapprehended, or misapplied by the trial court.
The trial court, in my view, did not err in ruling that the prosecution has established the guilt of appellants beyond reasonable doubt. Appellants are guilty of illegal possession of a prohibited drug under Section 8 of Republic Act 6425, which provides:
SEC. 8. Possession or Use of Prohibited Drugs. - The penalty of reclusion perpetua to death and a fine raging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who unless authorized by law, shall possess or use any prohibited drug subject to the provisions of Section 20 hereof. (As amended by Republic Act 7659).
In sentencing both appellants to reclusion perpetua and in imposing a fine of P500,000 upon each of them, the trial court was not in error but only enforcing law and policy on prohibited and dangerous drugs. Under R.A. No. 6425 as amended by R.A. No. 7659, the penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos (P500,000) to ten million pesos (10,000,000) shall be imposed if the quantity of marijuana involved in a conviction for possession of marijuana or Indian hemp is 750 grams or more.47
In the present case, the Chemistry Report submitted by forensic chemist Noemi Austero states that the subject prohibited drugs were: "(a) Dried suspected Marijuana fruiting tops weighing 3,200 grams contained in a "King Flakes" box, and (b) Dried suspected Marijuana leaves weighing 890.0 grams contained in pink and white plastic bag."48 The quantity of the confiscated marijuana as proved by the prosecution weighs more than 4 kilos, much in excess of 750 grams cited by the law as baseline for the penalty involved. In the absence of any aggravating or mitigating circumstances, the lower penalty of reclusion perpetua should be properly imposed, in view of Art. 63 of the Revised Penal Code.49
To conclude, I am of the considered view that the judgment of the Regional Trial Court convicting the appellants, as well as the penalty of reclusion perpetua imposed on them, should be affirmed.
Footnotes
1 Rollo, pp. 16-34.
2 Sometimes spelled as "Bulong" in other parts of the records.
3 Rollo, p. 8.
4 TSN, 15 November 1999, pp. 5-6.
5 Id. at 7.
6 Id. at 8.
7 Id. at 8, 17.
8 "Villalonja" and "Villalonghan" in other parts of the records.
9 TSN, 15 November 1999, pp. 8-9.
10 TSN, 16 November 1999, pp. 8-9.
11 Id. at 9.
12 TSN, 15 November 1999, p. 11.
13 Id. at 9.
14 Supra, note 12; TSN, 16 November 1999, p. 11.
15 TSN, 15 November 1999, pp. 11-12.
16 TSN, 16 November 1999, p. 13.
17 Ibid.
18 TSN, 15 November 1999, p. 13.
19 TSN, 12 November 1999, pp. 5-7; Records, p. 51, Exh. "E."
20 Sometimes spelled as "Levi" in other parts of the records.
21 TSN, 4 February 2000, pp. 2-3.
22 Rollo, p. 34.
23 Id., at 58.
24 Id., at 127.
25 CONST. ARTICLE III 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 or warrant of arrest shall issue 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 of things to be seized.
26 People v. Sarap, G.R. No. 132165, 26 March 2003, p. 5.
27 SEC. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. (Emphasis supplied).
28 Supra, note 26 citing People v. Aruta, 351 Phil. 868, 881 (1998).
29 TSN, 15 November 1999, pp. 7-8.
30 Supra, note 7.
31 TSN, 16 November 1999, pp. 8-9.
32 See People v. Valdez, 363 Phil. 481, 489 (1999).
33 People v. Montilla, 349 Phil. 640, 658 (1998).
34 Supra, note 31 at 24.
35 326 Phil. 345, 372 (1996).
36 Supra, note 33 at 661.
37 SEC. 8. Possession of Use of Prohibited Drugs. - The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall possess or use any prohibited drug subject to the provisions of Section 20 hereof.
38 Manalili v. Court of Appeals, 345 Phil. 632, 650 (1997).
39 Records, p. 51, Exh. "E."
40 G.R. Nos. 140546-47, 20 January 2003, p. 30.
41 People v. Burton, 335 Phil. 1003, 1025 (1997).
42 People v. Rodriguez, G.R. No. 144399, 20 March 2002, p. 10
43 Records, p. 86.
44 Id. at 52.
45 See People v. Padasin, G.R. No. 143671, 14 February 2003, p. 7; See also People v. Che Chun Ting, G.R. Nos. 130568-69, 21 March 2000, 328 SCRA 592, 602.
46 People v. Zheng Bai Hui, G.R. No. 127580, 22 August 2000, 338 SCRA 420, 475-476.
47 Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instruments of the Crime. – The penalties for offenses under Section 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 or Article III of this Act shall be applied if the dangerous drugs involved is in any of the following quantities:
1. 40 grams or more of opium;
2. 40 grams of more of morphine;
3. 200 grams of more of shabu or methylamphetamine hydrochloride;
4. 40 grams of more of heroin;
5. 750 grams or more of Indian hemp or marijuana;
6. 50 grams or more of marijuana resin or marijuana resin oil;
7. 40 grams or more of cocaine or cocaine hydrochloride; or
8. In the case of other dangerous drugs, the quantity of which is far beyond therapeutic requirements, as determined and promulgated by the Dangerous Drugs Board, after public consultations/hearings conducted for the purpose.
Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range from prision correctional to reclusion perpetua depending upon the quantity. (Emphasis supplied.)
48 Supra, note 40.
49 ART. 63. Rules for the application of indivisible penalties. - In all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed.
In all cases in which the law prescribes a penalty composed of two indivisible penalties the following rules shall be observed in the application thereof:
...
2. When there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied.
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