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AURELIO S. ALVERO,vs.ARSENIO P. DIZON, ET AL.,

This is a petition for certiorariwith injunction originally filed in this court.

In the petition it is alleged that petitioner Aurelio S. Alvero has been accused of treason, in criminacase No. 3 of the People's Court; that at the hearing on his petition for bail, the prosecutionpresented, as part of its evidence, certain documents which had been allegedly seized by soldiersof the United States Army, accompanied by Filipino guerrillas, in the petitioner's house; thatpetitioner immediately objected to the presentation of said documents, and called the attention ofthe respondent judges to the fact that he had filed a petition, in which he protested against theprocedure of the government in the seizure of said documents, and asked for their return to thepetitioner; that the respondents permitted the prosecution to present said documents as evidence,which were considered, upon the termination of the presentation of the evidence for both parties,in denying said petition for bail; that the petition filed on December 1, 1945, for the return of thedocuments allegedly seized illegally in petitioner's house, was not considered by the respondents,before the commencement of the trial of petitioner's case, on the merits, due perhaps to aninvoluntary oversight; that at the commencement of the trial of said criminal case No. 3, andduring its course, the prosecution again presented, as evidence, against the petitioner saiddocuments which had been taken from his house, and petitioner renewed his objection thereto,

and asked for their return to him, alleging that their seizure was illegal and that their presentationwould be tantamount to compelling him to testify against himself, in violation of his constitutionarights; that in deciding the question so raised, the respondent judges, in open court, stated thatthe prosecution might in the meanwhile continue presenting said documents, without prejudice tothe final resolution of said petition, when the prosecution should finish presenting its evidence; thatin concluding the presentation of its evidence and resting the case, after offering said documentsas part of its evidence, the petitioner again raised the question of the admissibility of saiddocuments, and the respondent judges then ordered the substantiation of said allegations ofpetitioner, and set for hearing his petition for the return of said documents; that said petition washeard on February 16, 1946, and at said hearing, the petitioner and his wife testified, without anycontradiction that, on February 12, 1945, on the occasion of the arrest of the petitioner by soldiersof the United States Army, the latter searched the house of the petitioner and seized, among otherthings, the documents which he had in his house; that when said petition for the return of said

documents was submitted for the consideration and decision of the respondent judges, the latter,on February 26, 1946, issued an order denying said petition, and admitted as competent evidencethe documents presented by the prosecution, marked as Exhibits A, C, G, H, K, L, P, R, R-1, R-2,U, Z, CC, DD, FF, HH; that on the same date that said order was issued, denying the petition forthe return of said documents, petitioner asked for the reconsideration of said order, which was alsodenied. (Petition, pars. 1-12.)

And herein petitioner now claims that the respondent judges, in denying the petition for the returnof said documents, acted without jurisdiction and committed a grave abuse in the exercise of theirdiscretion, alleging that even the seizure of documents by means of a search warrant legallyissued, constitutes a violation of the rights guaranteed in paragraphs 3 and 18 of section 1 ofArticle III of the Constitution, and, consequently, when their seizure cannot be justified by the

corresponding search warrant, the court should order their immediate return; that the petitionerhas no other speedy and adequate remedy for the protection of his rights guaranteed by theConstitution, other than this petition for certiorari, as the right of appeal granted by law to aperson accused of a crime, is costly and highly prejudicial to the petitioner, as it presupposes thatthe prosecution has established the guilt of the accused by means of legal and competentevidence, as alleged in the last three (3) paragraphs of the petition.

Consequently, herein petitioner asks for the annulment of the order issued by the respondentjudges, on February 26, 1946, in said criminal case No. 3, entitled People of the Philippines vsAurelio S. Alvero, the return to him of the documents presented by the prosecution, mentionedabove, and the issuance of a writ of preliminary injunction. .In their answer filed on March 21,


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1946, herein respondents have substantially admitted the allegations made and contained in thefirst twelve (12) paragraphs of the petition, except the portions alleging that the documents inquestion had been obtained by means of force and intimidation or through coercion; and thatcertain soldiers of the American Army took certain personal properties of herein petitioner, at thetime the search was made; and that the acquisition of said documents was manifestly a violation ofpetitioner's constitutional rights and that their admission, as evidence for the prosecution, would betantamount to compelling petitioner, as accused, to testify against himself all of which portions

have been expressly denied by the respondents.

Respondents have also expressly denied the allegations contained in the remaining three (3)paragraphs of the petition.

And as defenses, respondents allege (1) that petitioner himself has admitted the legality of theseizure of the documents in question in his motion for reconsideration, dated February 26, 1946;(2) that petitioner has not proven that said documents had been illegally seized for him; (3) thatthe seizure of the documents in question took place, on February 12, 1945, in Pasay, Rizal, whichwas then still a combat zone, and that the seizure of certain papers in the house of the petitionerwas made by soldiers of the United States Army of Liberation or its instrumentalities; (4) that saidseizure was effected lawfully under the terms of the proclamation of the Commander in Chief of the

United States Liberation Forces, dated December 29, 1944, in which he declared his purpose toremove alleged collaborators, when apprehended, from any position of political and economicinfluence in the Philippines and to hold them in restraint for the duration of the war; (5) that thedocuments in question had been properly admitted as evidence for the prosecution in criminal caseNo. 3, as herein petitioner, as accused in said case, had expressly waived his right to object totheir admissibility, particularly Exhibits A, FF, HH and P; (6) that petitioner's evidence of allegedownership, relative to Exhibits C, G, H, K, I, P, R, R-1 and R-2, is altogether insufficient, andpetitioner himself has expressly admitted that said documents are not his personal papers but partof the files of the New Leaders' Association, which was proven to be an organization created, forthe purpose of collaborating with the enemy; (7) and that none of the exhibits referred to in thepetition has been satisfactorily identified by the petitioner as included among the papers allegedlywrongfully seized from his house and belonging to him.

Considering the allegations made by the parties in their respective pleadings, and their supportingpapers, as well as the admissions made therein, the following facts appear to have been sufficientlyestablished:

(1) That on February 12, 1945, while the battle for Manila was raging, soldiers of the United StatesArmy, accompanied by men of Filipino Guerrilla Forces, placed herein petitioner under arrest,having been suspected of collaboration with the enemy, and seized and took certain papers fromhis house in Pasay, Rizal;

(2) That on or about October 4, 1945, petitioner was accused of treason, in criminal case No. 3 ofthe People's Court; after which, on December 1, 1945, he filed a petition, demanding the return ofthe papers allegedly seized and taken from his house;

(3) That petitioner also filed a petition for bail, at the hearing of which the prosecution presentedcertain papers and documents, which were admitted as part of its evidence, and said petition wasdenied;

(4) That at the trial of the case on the merits, the prosecution again presented said papers anddocuments, which were admitted as part of its evidence, and were marked as exhibits, asdescribed in the petition for certiorari, filed in this court;

(5) That herein petitioner had failed to object properly to the admission of said papers anddocuments at the hearing on said petition for bail, and at the trial of the case on the merits, in not


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having insisted that the question of the legality of the search and seizure of the papers anddocuments taken from his house should have been litigated and finally decided first, and thuspractically waived his objection to their admissibility, as evidence for the prosecution;

(6) That at the hearing on his petition for the return of the papers taken from his house, held afterthey had been admitted as part of the evidence for the prosecution, at the hearing on the petitionfor bail and at the trial of the case on the merits, herein petitioner had failed to identify

satisfactorily the documents now in question, and his ownership thereof; and

(7) That petitioner himself in his petition for reconsideration, dated February 26, 1946, admittedthe legality the legality of the seizure of the documents taken from his house, and at the hearingon his petition for bail, he himself called for some of the documents in question.

The right of officers and men of the United States Army to arrest herein petitioner, as acollaborationist suspect, and to seize his personal papers, without any search warrant, in the zoneof military operations, is unquestionable, under the provisions of article 4, Chapter II, Section I, ofthe Regulations relative to the Laws and Customs of War on Land of the Hague Conventions of1907, authorizing the seizure of military papers in the possession of prisoners of war (Wilson,International Law, 3d ed., 1939, p.524); and also under the proclamation, dated December 29,

1944, issued by Gen. Douglas MacArthur, as Commander in Chief of the United States of Army,declaring his purpose to remove certain citizens of the Philippines, who had voluntarily given aidand comfort to the enemy, in violation of the allegiance due the Governments of the United Statesand the Commonwealth of the Philippines, when apprehended, from any position of political andeconomic influence in the Philippines and to hold them in restraint for the duration of the war. (41Off. Gaz., No. 2, pp. 148, 149.) As a matter of fact, petitioner himself, in his motion forreconsideration, dated February 26, 1946, expressly admitted the legality of the seizure of hispersonal papers and documents at the time of his arrest.

The most important exception to the necessity for a search warrant is the right of search andseizure as an incident to a lawful arrest. A lawful arrest may be made either while a crime is beingcommitted or after its commission. The right to search includes in both instances that of searching

the person of him who is arrested, in order to find and seize things connected with the crime as itsfruits or as the means by which it was committed. (Agnello vs. United States, 269 U. S., 20.)

When one is legally arrested for an offense, whatever is found in his possession or in his contromay be seized and used in evidence against him; and an officer has the right to make an arrestwithout a warrant of a person believed by the officer upon reasonable grounds to have committed afelony. (Carroll vs. United States, 267 U. S., 132.).

The majority of the states have held that the privilege against compulsory self-incrimination, whichis also guaranteed by state constitutional provisions is not violated by the use in evidence ofarticles obtained by an unconstitutional search and seizure. (People vs. Defore, 242 N. Y., 13; 150N. E., 585.)

It is true that on December 1, 1945, herein petitioner filed a petition, demanding the return ofcertain papers and documents allegedly seized and taken from his house at the time of his arrest;but when he consented to their presentation, as part of the evidence for the prosecution, at thehearing on his petition for bail and at the trial of the case on the merits, without having insistedthat the question of the alleged illegality of the search and seizure of said papers and documentsshould first have been directly litigated and established by a motion, made before the trial, for theirreturn, he was and should be deemed to have waived his objection to their admissibility as part ofthe evidence for the prosecution; since the privilege against compulsory self-incrimination may bewaived. (Weeks vs. United States, 232 U. S., 383; Silverthorne Lumber Co. vs. United States, 251U. S., 385; Gouled vs. United States, 255 U. S., 298; People vs. Carlos, 47 Phil., 626, 630, 631.)


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At the hearing on his petition for bail, petitioner himself requested the production of the documentmarked as Exhibit A, which was a letter sent by him to Dr. Jose P. Laurel; the document marked asExhibit HH, which was a memorandum to Col. Suzuki, dated December 30, 1944; and thedocument marked as Exhibit P, which was a memorandum on Nippongo classes. And he is now,therefore, estopped from questioning their admission.

Furthermore, petitioner could not properly identify many of said documents, such as Exhibit FF, nor

satisfactorily establish his ownership thereof; while the prosecution has sufficiently established thefact that some of the papers now in question, such as Exhibit C, had been received at the Office ofthe CIC of the United States Army in the City of Manila, since February 11, 1945, that is, one dayprior to the seizure of certain papers and documents in the house of the petitioner. And withreference to Exhibits C, G, H, K, L, P, R, R-1 and R-2, petitioner himself admitted that they are nothis personal papers but part of the files of the New Leader's Association. And it is well establishedrule in this jurisdiction that in a petition for the production of papers and documents, they must besufficiently described and identified, otherwise the petition cannot prosper. (Liebenow vs. PhilippineVegetable Oil Co., 39 Phil., 60, 67, 69; Rule 21, section 1, Rules of Court.)

The purpose of the constitutional provisions against unlawful searches and seizures is to preventviolations of private security in person and property, and unlawful invasions of the sanctity of the

home, by officers of the law acting under legislative or judicial sanction, and to give remedyagainst such usurpations when attempted. (Adams vs. New York, 192 U. S., 585.) But it does notprohibit the Federal Government from taking advantage of unlawful searches made by a privateperson or under authority of state law. (Weeks vs. United States, 232 U. S., 383; Burdeau vs.McDowell, 256 U. S., 465.)

As the soldiers of the United States Army, that took and seized certain papers and documents fromthe residence of herein petitioner, on February 12, 1945, were not acting as agents or on behalf ofthe Government of the Commonwealth of the Philippines; and that those papers and documentscame in the possession of the authorities of the Commonwealth Government, through the Office ofthe CIC of the United States Army in Manila, the use and presentation of said papers anddocuments, as evidence for the prosecution against herein petitioner, at the trial of his case fortreason, before the People's Court, cannot now be legally attacked, on the ground of unlawful orunreasonable searches and seizures, or on any other constitutional ground, as declared by theSupreme Court of the United States in similar cases. (Burdeau vs. McDowell, 256 U. S., 465;Gambino vs. United States, 275 U. S., 310.)

In view of the foregoing, it is evident that the petition for certiorariwith injunction, filed in thiscase, is absolutely without merit, and it is, therefore, hereby denied and dismissed with costs. Soordered.

PEOPLE OF THE PHILIPPINES, vs. ANDRE MARTI,

This is an appeal from a decision *rendered by the Special Criminal Court of Manila (Regional TriaCourt, Branch XLIX) convicting accused-appellant of violation of Section 21 (b), Article IV inrelation to Section 4, Article 11 and Section 2 (e) (i), Article 1 of Republic Act 6425, as amended,otherwise known as the Dangerous Drugs Act.

The facts as summarized in the brief of the prosecution are as follows:

On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law wife, Shirley Reyes, went to the booth of the "Manila Packing and ExportForwarders" in the Pistang Pilipino Complex, Ermita, Manila, carrying with them four(4) gift wrapped packages. Anita Reyes (the proprietress and no relation to ShirleyReyes) attended to them. The appellant informed Anita Reyes that he was sendingthe packages to a friend in Zurich, Switzerland. Appellant filled up the contract


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necessary for the transaction, writing therein his name, passport number, the date ofshipment and the name and address of the consignee, namely, "WALTER FIERZ,Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)

Anita Reyes then asked the appellant if she could examine and inspect the packagesAppellant, however, refused, assuring her that the packages simply contained books,cigars, and gloves and were gifts to his friend in Zurich. In view of appellant's

representation, Anita Reyes no longer insisted on inspecting the packages. The four(4) packages were then placed inside a brown corrugated box one by two feet in size(1' x 2'). Styro-foam was placed at the bottom and on top of the packages before thebox was sealed with masking tape, thus making the box ready for shipment(Decision, p. 8).

Before delivery of appellant's box to the Bureau of Customs and/or Bureau ofPosts, Mr.Job Reyes (proprietor) and husband of Anita (Reyes), following standardoperating procedure, opened the boxes for final inspection.When he openedappellant's box, a peculiar odor emitted therefrom.His curiousity aroused, hesqueezed one of the bundles allegedly containing gloves and felt dried leaves

inside.Opening one of the bundles, he pulled out a cellophane wrapper protruding

from the opening of one of the gloves.He made an opening on one of the cellophanewrappers and took several grams of the contents thereof(tsn, pp. 29-30, October 61987; Emphasis supplied).

Job Reyes forthwith prepared a letter reporting the shipment to the NBI andrequesting a laboratory examination of the samples he extracted from the cellophanewrapper (tsn, pp. 5-6, October 6, 1987).

He brought the letter and a sample of appellant's shipment to the Narcotics Sectionof the National Bureau of Investigation (NBI), at about 1:30 o'clock in the afternoonof that date, i.e., August 14, 1987. He was interviewed by the Chief of NarcoticsSection. Job Reyes informed the NBI that the rest of the shipment was still in his

office. Therefore, Job Reyes and three (3) NBI agents, and a photographer, went tothe Reyes' office at Ermita, Manila (tsn, p. 30, October 6, 1987).

Job Reyes brought out the box in which appellant's packages were placed and, in the

presence of the NBI agents, opened the top flaps, removed the styro-foam and took

out the cellophane wrappers from inside the gloves.Dried marijuana leaves werefound to have been contained inside the cellophane wrappers (tsn, p. 38, October 6,1987; Emphasis supplied).

The package which allegedly contained books was likewise opened by Job Reyes. Hediscovered that the package contained bricks or cake-like dried marijuana leavesThe package which allegedly contained tabacalera cigars was also opened. It turnedout that dried marijuana leaves were neatly stocked underneath the cigars (tsn, p.39, October 6, 1987).

The NBI agents made an inventory and took charge of the box and of the contentsthereof, after signing a "Receipt" acknowledging custodyof the said effects (tsn, pp2-3, October 7, 1987).

Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address inhis passport being the Manila Central Post Office, the agents requested assistance from the latter'sChief Security. On August 27, 1987, appellant, while claiming his mail at the Central Post Office,was invited by the NBI to shed light on the attempted shipment of the seized dried leaves. On thesame day the Narcotics Section of the NBI submitted the dried leaves to the Forensic Chemistry


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Section for laboratory examination. It turned out that the dried leaves were marijuana floweringtops as certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).

Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known asthe Dangerous Drugs Act.

After trial, the court a quorendered the assailed decision.

In this appeal, accused/appellant assigns the following errors, to wit:

THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY SEARCHEDAND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS.

THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE UNDISPUTEDFACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE UNDER CUSTODIALPROCEEDINGS WERE NOT OBSERVED.

THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION OFTHE APPELLANT ON HOW THE FOUR PARCELS CAME INTO HIS POSSESSION(Appellant's Brief, p. 1;Rollo, p. 55)

1. Appellant contends that the evidence subject of the imputed offense had been obtained inviolation of his constitutional rights against unreasonable search and seizure and privacy ofcommunication (Sec. 2 and 3, Art. III, Constitution) and therefore argues that the same should beheld inadmissible in evidence (Sec. 3 (2), Art. III).

Sections 2 and 3, Article III of the Constitution provide:

Sec. 2. The right of the people to be secure in their persons, houses, papers andeffects against unreasonable searches and seizures of whatever nature and for anypurpose shall be inviolable, and no search warrant or warrant of arrest shall issueexcept upon probable cause to be determined personally by the judge afterexamination under oath or affirmation of the complainant and the witnesses he mayproduce, and particularly describing the place to be searched and the persons orthings to be seized.

Sec. 3. (1) The privacy of communication and correspondence shall be inviolableexcept upon lawful order of the court, or when public safety or order requiresotherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall beinadmissible for any purpose in any proceeding.

Our present constitutional provision on the guarantee against unreasonable search and seizure hadits origin in the 1935 Charter which, worded as follows:

The right of the people to be secure in their persons, houses, papers and effectsagainst unreasonable searches and seizures shall not be violated, and no warrantsshall issue but uponprobablecause, to be determined by the judge after examinationunder oath or affirmation of the complainant and the witnesses he may produce, andparticularly describing the place to be searched, and the persons or things to beseized. (Sec. 1 [3], Article III)


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was in turn derived almost verbatim from the Fourth Amendment **to the United StatesConstitution. As such, the Court may turn to the pronouncements of the United States FederaSupreme Court and State Appellate Courts which are considered doctrinal in this jurisdiction.

Thus, following the exclusionary rule laid down in Mapp v.Ohio by the US Federal SupremeCourt (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, in Stonehill v.Diokno(20SCRA 383 [1967]), declared as inadmissible any evidence obtained by virtue of a defective search

and seizure warrant, abandoning in the process the ruling earlier adopted in Moncado v.People'sCourt (80 Phil. 1 [1948]) wherein the admissibility of evidence was not affected by the illegality ofits seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and iscarried over up to the present with the advent of the 1987 Constitution.

In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down theadmissibility of evidence obtained in violation of the constitutional safeguard against unreasonablesearches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce deLeon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA687 [1987]; See alsoSalazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990).

It must be noted, however, that in all those cases adverted to, the evidence so obtained were

invariably procured by the State acting through the medium of its law enforcers or other authorizedgovernment agencies.

On the other hand, the case at bar assumes a peculiar character since the evidence sought to beexcluded was primarily discovered and obtained by a private person, acting in a private capacityand without the intervention and participation of State authorities. Under the circumstances, canaccused/appellant validly claim that his constitutional right against unreasonable searches andseizure has been violated? Stated otherwise, may an act of a private individual, allegedly inviolation of appellant's constitutional rights, be invoked against the State?

We hold in the negative. In the absence of governmental interference, the liberties guaranteed bythe Constitution cannot be invoked against the State.

As this Court held in Villanueva v.Querubin(48 SCRA 345 [1972]:

1. This constitutional right(against unreasonable search and seizure) refers to theimmunity of one's person, whether citizen or alien, from interference by governmentincluded in which is his residence, his papers, and other possessions. . . .

. . . There the state, however powerful, does not as such have the access exceptunder the circumstances above noted, for in the traditional formulation, his house,however humble, is his castle. Thus is outlawed any unwarranted intrusion bygovernment, which is called upon to refrain from any invasion of his dwelling and to

respect the privacies of his life. . . . (Cf. Schermerber v. California, 384 US 757

[1966] and Boyd v. United States, 116 US 616 [1886]; Emphasis supplied).

In Burdeau v.McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there inconstruing the right against unreasonable searches and seizures declared that:

(t)he Fourth Amendment gives protection against unlawful searches and seizures,and as shown in previous cases, its protection applies to governmental action. Itsorigin and history clearly show that it was intended as a restraint upon the activitiesof sovereign authority, and was not intended to be a limitation upon other thangovernmental agencies; as against such authority it was the purpose of the FourthAmendment to secure the citizen in the right of unmolested occupation of his


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dwelling and the possession of his property, subject to the right of seizure by processduly served.

The above ruling was reiterated in State v.Bryan(457 P.2d 661 [1968]) where a parking attendantwho searched the automobile to ascertain the owner thereof found marijuana instead, without theknowledge and participation of police authorities, was declared admissible in prosecution for illegalpossession of narcotics.

And again in the 1969 case of Walker v.State (429 S.W.2d 121), it was held that the search andseizure clauses are restraints upon the government and its agents, not upon private individuals(citingPeople v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957).

Likewise appropos is the case of Bernas v.US (373 F.2d 517 (1967). The Court there said:

The search of which appellant complains, however, was made by a private citizen the owner of a motel in which appellant stayed overnight and in which he left behinda travel case containing the evidence***complained of. The search was made onthe motel owner's own initiative. Because of it, he became suspicious, called the loca

police, informed them of the bag's contents, and made it available to the authorities.

The fourth amendment and the case law applying it do not require exclusion ofevidence obtained through a search by a private citizen. Rather, the amendmentonly proscribes governmental action."

The contraband in the case at bar having come into possession of the Government without thelatter transgressing appellant's rights against unreasonable search and seizure, the Court sees nocogent reason why the same should not be admitted against him in the prosecution of the offensecharged.

Appellant, however, would like this court to believe that NBI agents made an illegal search and

seizure of the evidence later on used in prosecuting the case which resulted in his conviction.

The postulate advanced by accused/appellant needs to be clarified in two days. In both instances,the argument stands to fall on its own weight, or the lack of it.

First, the factual considerations of the case at bar readily foreclose the proposition that NBI agentsconducted an illegal search and seizure of the prohibited merchandise. Records of the case clearlyindicate that it was Mr. Job Reyes, the proprietor of the forwarding agency, who madesearch/inspection of the packages. Said inspection was reasonable and a standard operatingprocedure on the part of Mr. Reyes as a precautionary measure before delivery of packages to theBureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; OriginaRecords, pp. 119-122; 167-168).

It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples ofthe same to the NBI and later summoned the agents to his place of business. Thereafter, heopened the parcel containing the rest of the shipment and entrusted the care and custody thereofto the NBI agents. Clearly, the NBI agents made no search and seizure, much less an illegal one,contrary to the postulate of accused/appellant.

Second, the mere presence of the NBI agents did not convert the reasonable search effected byReyes into a warrantless search and seizure proscribed by the Constitution. Merely to observe andlook at that which is in plain sight is not a search. Having observed that which is open, where notrespass has been committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135).


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Where the contraband articles are identified without a trespass on the part of the arresting officer,there is not the search that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202[1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d122 [1968]).

In Gandy v.Watkins(237 F. Supp. 266 [1964]), it was likewise held that where the property wastaken into custody of the police at the specific request of the manager and where the search was

initially made by the owner there is no unreasonable search and seizure within the constitutionalmeaning of the term.

That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts ofprivate individuals finds support in the deliberations of the Constitutional Commission. True, theliberties guaranteed by the fundamental law of the land must always be subject to protection. Butprotection against whom? Commissioner Bernas in his sponsorship speech in the Bill of Rightsanswers the query which he himself posed, as follows:

First, the general reflections. The protection of fundamental liberties in the essenceof constitutional democracy. Protection against whom? Protection against thestate.The Bill of Rights governs the relationship between the individual and the

state.Its concern is not the relation between individuals, between a privateindividual and other individuals.What the Bill of Rights does is to declare someforbidden zones in the private sphere inaccessible to any power holder. (SponsorshipSpeech of Commissioner Bernas , Record of the Constitutional Commission, Vol. 1, p674; July 17, 1986; Emphasis supplied)

The constitutional proscription against unlawful searches and seizures therefore applies as arestraint directed only against the government and its agencies tasked with the enforcement of thelaw. Thus, it could only be invoked against the State to whom the restraint against arbitrary andunreasonable exercise of power is imposed.

If the search is made upon the request of law enforcers, a warrant must generally be first secured

if it is to pass the test of constitutionality. However, if the search is made at the behest or initiativeof the proprietor of a private establishment for its own and private purposes, as in the case at bar,and without the intervention of police authorities, the right against unreasonable search andseizure cannot be invoked for only the act of private individual, not the law enforcers, is involved.In sum, the protection against unreasonable searches and seizures cannot be extended to actscommitted by private individuals so as to bring it within the ambit of alleged unlawful intrusion bythe government.

Appellant argues, however, that since the provisions of the 1935 Constitution has been modified bythe present phraseology found in the 1987 Charter, expressly declaring as inadmissible anyevidence obtained in violation of the constitutional prohibition against illegal search and seizure, itmatters not whether the evidence was procured by police authorities or private individuals(Appellant's Brief, p. 8, Rollo, p. 62).

The argument is untenable. For one thing, the constitution, in laying down the principles of thegovernment and fundamental liberties of the people, does not govern relationships betweenindividuals. Moreover, it must be emphasized that the modifications introduced in the 1987Constitution (re: Sec. 2, Art. III) relate to the issuance of either a search warrant or warrant ofarrest vis-a-visthe responsibility of the judge in the issuance thereof (SeeSoliven v. Makasiar, 167SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987]. Themodifications introduced deviate in no manner as to whom the restriction or inhibition againstunreasonable search and seizure is directed against. The restraint stayed with the State and didnot shift to anyone else.


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Corolarilly, alleged violations against unreasonable search and seizure may only be invoked againstthe State by an individual unjustly traduced by the exercise of sovereign authority. To agree withappellant that an act of a private individual in violation of the Bill of Rights should also beconstrued as an act of the State would result in serious legal complications and an absurdinterpretation of the constitution.

Similarly, the admissibility of the evidence procured by an individual effected through private

seizure equally applies, inpari passu, to the alleged violation, non-governmental as it is, ofappellant's constitutional rights to privacy and communication.

2. In his second assignment of error, appellant contends that the lower court erred in convictinghim despite the undisputed fact that his rights under the constitution while under custodiainvestigation were not observed.

Again, the contention is without merit, We have carefully examined the records of the case andfound nothing to indicate, as an "undisputed fact", that appellant was not informed of hisconstitutional rights or that he gave statements without the assistance of counsel. The lawenforcers testified that accused/appellant was informed of his constitutional rights. It is presumedthat they have regularly performed their duties (See. 5(m), Rule 131) and their testimonies should

be given full faith and credence, there being no evidence to the contrary. What is clear from therecords, on the other hand, is that appellant refused to give any written statement while underinvestigation as testified by Atty. Lastimoso of the NBI, Thus:

Fiscal Formoso:

You said that you investigated Mr. and Mrs. Job Reyes. What about the accused heredid you investigate the accused together with the girl?

WITNESS:

Yes, we have interviewed the accused together with the girl but the accused availed

of his constitutional right not to give any written statement, sir. (TSN, October 81987, p. 62; Original Records, p. 240)

The above testimony of the witness for the prosecution was not contradicted by the defense oncross-examination. As borne out by the records, neither was there any proof by the defense thatappellant gave uncounselled confession while being investigated. What is more, we haveexaminedthe assailed judgment of the trial court and nowhere is there any reference made to the testimonyof appellant while under custodial investigation which was utilized in the finding of conviction.Appellant's second assignment of error is therefore misplaced.

3. Coming now to appellant's third assignment of error, appellant would like us to believe that hewas not the owner of the packages which contained prohibited drugs but rather a certain Michael, a

German national, whom appellant met in a pub along Ermita, Manila: that in the course of their 30-minute conversation, Michael requested him to ship the packages and gave him P2,000.00 for thecost of the shipment since the German national was about to leave the country the next day(October 15, 1987, TSN, pp. 2-10).

Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-serving and contrary to human experience. It can easily be fabricated. An acquaintance with acomplete stranger struck in half an hour could not have pushed a man to entrust the shipment offour (4) parcels and shell out P2,000.00 for the purpose and for appellant to readily accede tocomply with the undertaking without first ascertaining its contents. As stated by the trial court, "(a)person would not simply entrust contraband and of considerable value at that as the marijuana


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flowering tops, and the cash amount of P2,000.00 to a complete stranger like the Accused. TheAccused, on the other hand, would not simply accept such undertaking to take custody of thepackages and ship the same from a complete stranger on his mere say-so" (Decision, p. 19, Rollop. 91). As to why he readily agreed to do the errand, appellant failed to explain. Denials, ifunsubstantiated by clear and convincing evidence, are negative self-serving evidence whichdeserve no weight in law and cannot be given greater evidentiary weight than the testimony ofcredible witnesses who testify on affirmative matters (People v. Esquillo, 171 SCRA 571 [1989];

People vs. Sariol, 174 SCRA 237 [1989]).

Appellant's bare denial is even made more suspect considering that, as per records of the Interpol,he was previously convicted of possession of hashish by the Kleve Court in the Federal Republic ofGermany on January 1, 1982 and that the consignee of the frustrated shipment, Walter Fierz, alsoa Swiss national, was likewise convicted for drug abuse and is just about an hour's drive fromappellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66; Original Records, p244; Decision, p. 21; Rollo, p. 93).

Evidence to be believed, must not only proceed from the mouth of a credible witness, but it mustbe credible in itself such as the common experience and observation of mankind can approve asprobable under the circumstances (People v. Alto, 26 SCRA 342 [1968], citingDaggers v. Van

Dyke, 37 N.J. Eg. 130; see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123SCRA 327 [1983]); Castaares v. CA, 92 SCRA 567 [1979]). As records further show, appellant didnot even bother to ask Michael's full name, his complete address or passport number. Furthermoreif indeed, the German national was the owner of the merchandise, appellant should have soindicated in the contract of shipment (Exh. "B", Original Records, p. 40). On the contrary, appellantsigned the contract as the owner and shipper thereof giving more weight to the presumption thatthings which a person possesses, or exercises acts of ownership over, are owned by him (Sec. 5[j], Rule 131). At this point, appellant is therefore estopped to claim otherwise.

Premises considered, we see no error committed by the trial court in rendering the assailedjudgment.

WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of thecrime charged is hereby AFFIRMED. No costs.

CECILIA ZULUETA, vs. COURT OF APPEALS and ALFREDO MARTIN,

This is a petition to review the decision of the Court of Appeals, affirming the decision of theRegional Trial Court of Manila (Branch X) which ordered petitioner to return documents and paperstaken by her from private respondents clinic without the latters knowledge and consent.

The facts are as follows:

Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982,petitioner entered the clinic of her husband, a doctor of medicine, and in the presence of hermother, a driver and private respondents secretary, forcibly opened the drawers and cabinet in her

husbands clinic and took 157 documents consisting of private correspondence between Dr. Martinand his alleged paramours, greetings cards, cancelled checks, diaries, Dr. Martins passport , andphotographs. The documents and papers were seized for use in evidence in a case for legalseparation and for disqualification from the practice of medicine which petitioner had filed againsther husband.

Dr. Martin brought this action below for recovery of the documents and papers and fordamages against petitioner. The case was filed with the Regional Trial Court of Manila, Branch X,which, after trial, rendered judgment for private respondent, Dr. Alfredo Martin, declaring him the

capital/exclusive owner of the properties described in paragraph 3 of plaintiffs Complaint or thosefurther described in the Motion to Return and Suppress and ordering Cecilia Zulueta and anyperson acting in her behalf to immediately return the properties to Dr. Martin and to pay him


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P5,000.00, as nominal damages; P5,000.00, as moral damages and attorneys fees; and to pay the

costs of the suit. The writ of preliminary injunction earlier issued was made final and petitionerCecilia Zulueta and her attorneys and representatives were enjoined from using orsubmitting/admitting as evidence the documents and papers in question. On appeal, the Court ofAppeals affirmed the decision of the Regional Trial Court. Hence this petition.

There is no question that the documents and papers in question belong to private respondent,

Dr. Alfredo Martin, and that they were taken by his wife, the herein petitioner, without hisknowledge and consent. For that reason, the trial court declared the documents and papers to beproperties of private respondent, ordered petitioner to return them to private respondent andenjoined her from using them in evidence. In appealing from the decision of the Court of Appealsaffirming the trial courts decision, petitioners only ground is that inAlfredo Martin v. Alfonso Felix,Jr.,1this Court ruled that the documents and papers (marked as Annexes A-i to J-7 of respondentscomment in that case) were admissible in evidence and, therefore, their use by petitionersattorney, Alfonso Felix, Jr., did not constitute malpractice or gross misconduct. For this reason it iscontended that the Court of Appeals erred in affirming the decision of the trial court instead ofdismissing private respondents complaint.

Petitioners contention has no merit. The case against Atty. Felix, Jr. was for disbarment.

Among other things, private respondent, Dr. Alfredo Martin, as complainant in that case, charged

that in using the documents in evidence, Atty. Felix, Jr. committed malpractice or gross misconductbecause of the injunctive order of the trial court. In dismissing the complaint against Atty. Felix,Jr., this Court took note of the following defense of Atty. Felix, Jr. which it found to be impressedwith merit:2

On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he maintainsthat:

xxx xxx xxx

4. When respondent refiled Cecilias case for legal separation before the Pasig Regional Trial Court,

there was admittedly an order of the Manila Regional Trial Court prohibiting Cecilia from using thedocuments Annex A-I to J-7. On September 6, 1983, however having appealed the said order tothis Court on a petition for certiorari, this Court issued a restraining order on aforesaid date whichorder temporarily set aside the order of the trial court. Hence, during the enforceability of thisCourts order, respondents request for petitioner to admit the genuineness and authenticity of thesubject annexes cannot be looked upon as malpractice. Notably, petitioner Dr. Martin finallyadmitted the truth and authenticity of the questioned annexes. At that point in time, would it havebeen malpractice for respondent to use petitioners admission as evidence against him in the legalseparation case pending in the Regional Trial Court of Makati? Respondent submits it is- notmalpractice.

Significantly, petitioners admission was done not thru his counsel but by Dr. Martin himselfunder oath. Such verified admission constitutes an affidavit, and, therefore, receivable in evidenceagainst him. Petitioner became bound by his admission. For Cecilia to avail herself of her husbandsadmission and use the same in her action for legal separation cannot be treated as malpractice.

Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than adeclaration that his use of the documents and papers for the purpose of securing Dr. Martinsadmission as to their genuiness and authenticity did not constitute a violation of the injunctiveorder of the trial court. By no means does the decision in that case establish the admissibility othe documents and papers in question.

It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating thewrit of preliminary injunction issued by the trial court, it was only because, at the time he used thedocuments and papers, enforcement of the order of the trial court was temporarily restrained bythis Court. The TRO issued by this Court was eventually lifted as the petition for certiorari filed by
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petitioner against the trial courts order was dismissed and, therefore, the prohibition against the

further use of the documents and papers became effective again.

Indeed the documents and papers in question are inadmissible in evidence. The constitutionainjunction declaring the privacy of communication and correspondence [to be] inviolable3is noless applicable simply because it is the wife (who thinks herself aggrieved by her husbandsinfidelity) who is the party against whom the constitutional provision is to be enforced. The only

exception to the prohibition in the Constitution is if there is a lawful order [from a] court or whenpublic safety or order requires otherwise, as prescribed by law.4Any violation of this provisionrenders the evidence obtained inadmissible for any purpose in any proceeding.5

The intimacies between husband and wife do not justify any one of them in breaking thedrawers and cabinets of the other and in ransacking them for any telltale evidence of maritainfidelity. A person, by contracting marriage, does not shed his/her integrity or his right to privacyas an individual and the constitutional protection is ever available to him or to her.

The law insures absolute freedom of communication between the spouses by making itprivileged. Neither husband nor wife may testify for or against the other without the consent of theaffected spouse while the marriage subsists.6Neither may be examined without the consent of theother as to any communication received in confidence by one from the other during the marriage,save for specified exceptions.7But one thing is freedom of communication; quite another is acompulsion for each one to share what one knows with the other. And this has nothing to do withthe duty of fidelity that each owes to the other.

WHEREFORE, the petition for review is DENIED for lack of merit.

PEOPLE OF THE PHILIPPINES v. CONWAY B. OMAWENG

1. CRIMINAL LAW; DANGEROUS DRUG ACT; ILLEGAL POSSESSION OF PROHIBITED DRUGS;PROOF OF OWNERSHIP THEREOF BY THE ACCUSED NOT REQUIRED. The accused contends thatthe prosecution failed to prove that he is the owner of the marijuana found inside the travelling bagwhich he had in his vehicle, a Ford Fiera Proof of ownership is immaterial. Accused was prosecuted

for the dispatching in transit or transporting of prohibited drugs pursuant to Section 4, Article II ofR.A. No. 6425, as amended. This section does not require that for one to be liable for participatingin any of the proscribed transactions enumerated therein, he must be the owner of the prohibiteddrug. This section penalizes the pusher, who need not be the owner of the prohibited drug. The lawdefines pusher as "any person who sells, administers, delivers, or gives away to another, on anyterms whatsoever, or distributes, dispatches in transit or transports any dangerous drug or whoacts as a broker in any of such transactions, in violation of this Act. [Section 2 (m), R.A. No. 6425,as amended.] In People v. Alfonso, [186 SCRA (1990)] where the accused was charged with theunlawful transportation of marijuana under the aforesaid Section 4, this Court ruled that ownershipis not a basic issue

2. REMEDIAL LAW; EVIDENCE; CIRCUMSTANTIAL EVIDENCE COMBINATION THEREOF; WARRANTSA CONVICTION BEYOND REASONABLE DOUBT. The facts, as proven by the prosecutionestablish beyond cavil that the accused was caught in the act of transporting the prohibited drugor, in other words, in flagrante delicto. That he knew fully well what he was doing is shown beyondmoral certainty by the following circumstances: (a) the prohibited drug was found in a travellingbag, (b) he is the owner of the said bag, (c) he concealed the bag behind a spare tire, (d) he wastravelling alone, and (e) the Ford Fiera in which he loaded the bag was under his absolute control,pursuant to Section 4, Rule 133 of the Rules of Court (on circumstantial evidence), the combinationof all these circumstances is such as to produce a conviction beyond reasonable doubt. Suchcircumstances, unrebutted by strong and convincing evidence by the accused, even gave rise tothe presumption that he is the owner of the prohibited drug. [Section 3(j), Rule 131, Rules ofCourt.]
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3. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCH &SEIZURE; WHEN DEEMED WAIVED. Accused was not subjected to any search which may bestigmatized as a violation of his Constitutional right against unreasonable searches and seizures.[Section 2, Article III, 1987 Constitution.] If one had been made, this Court would be the first tocondemn it "as the protection of the citizen and the maintenance of his constitutional rights is oneof the highest duties and privileges of the Court." [Rodriguez v. Villamiel, 65 Phil. 230 (1937).] Hewillingly gave prior consent to the search and voluntarily agreed to have it conducted on his vehicle

and travelling bag. Thus, the accused waived his right against unreasonable searches and seizuresAs this Court stated in People v. Malasugui: (63 Phil. 221, 226 [1936]. See also Vda. de Garcia v.Locsin, 65 Phil. 689 [1938]; People v. Donato, 198 SCRA 130 [1991]; People v. Rodrigueza, 205SCRA 791 [1992].)." . . When one voluntarily submits to a search or consents to have it made of(sic) his person or premises, he is precluded from later complaining thereof (Cooley, ConstitutionalLimitations, 8th ed., vol. I, page 631.) The right to be secure from unreasonable search may, likeevery right, be waived and such waiver may be made either expressly or impliedly." Since in thecourse of the valid search forty-one (41) packages of drugs were found, it behooved the officers toseize the same; no warrant was necessary for such seizure. Besides, when said packages wereidentified by the prosecution witnesses and later on formally offered in evidence, the accused didnot raise any objection whatsoever.

D E C I S I O NDAVIDE, JR.,J.:

Accused Conway B. Omaweng was originally indicted for the violation of Section 4, Article II ofRepublic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, in acriminal complaint filed with the Municipal Trial Court of Bontoc, Mountain Province on 12September 1988. 1 Upon his failure to submit counter-affidavits despite the granting of anextension of time to do so, the court declared that he had waived his right to a preliminaryinvestigation and, finding probable cause against the accused, ordered the elevation of the case tothe proper court. 2

On 14 November 1988, the Office of the Provincial Fiscal of Mountain Province filed an Information

charging the accused with the violation of Section 47 Article II of the Dangerous Drugs Act of 1972,as amended. The accusatory portion thereof reads:chanrobles virtual lawlibrary

"That on or about September 12, 1988, at Dantay, Bontoc, Mountain Province, and within thejurisdiction of this Honorable Court, the above-named accused, without being authorized by law,did then and there willfully, unlawfully and feloniously dispatch in transit or transport in a FordFiera, owned and driven by him, 10 1/4 kilos of processed marijuana in powder form contained inal plastic bags of different sizes which were placed in a travelling bag destained (sic) and intendedfor delivery, disposition and sale in Sagada, Mountain Province, with full knowledge that saidprocessed marijuana is (sic) prohibited drug or from which (sic) prohibited drug maybemanufactured.

CONTRARY TO LAW." 3

The case was docketed as Criminal Case No. 713.

After his motion for reinvestigation was denied by the Provincial Fiscal, 4 the accused entered aplea of not guilty during his arraignment on 20 June 1989.

During the trial on the merits, the prosecution presented four (4) witnesses. The accused did notpresent any evidence other than portions of the Joint Clarificatory Sworn Statement, dated 23December 1988, of prosecution witnesses Joseph Layong and David Fomocod.

On 21 March 1991, the trial court promulgated its Judgment 5 convicting the accused of the crime


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of transporting prohibited drugs penalized under Section 4, Article II of R.A. No. 6425, asamended. The dispositive portion of the decision reads:jgc:chanrobles.com.ph

"WHEREFORE, judgment is hereby rendered imposing upon the accused herein the penalty of lifeimprisonment and a fine of Twenty Five Thousand Pesos.

Pursuant to Sec. 20, Art. IV of the aforecited special law, the drugs subject of the crime are

ordered confiscated and forfeited in favor of the Government. Accordingly, it is further directed thatsuch drugs so confiscated and forfeited be destroyed without delay per existing rules andregulations on the matter.chanrobles lawlibrary : rednad

Costs against the accused.

SO ORDERED." 6

Hence, this appeal.

In the Appellants Brief,Accusedimputes upon the trial court the commission of the followingerrors.

"I

. . . IN CONVICTING THE ACCUSED DESPITE INSUFFICIENCY OF EVIDENCE TO PROVE HIS GUILTBEYOND REASONABLE DOUBT.

II

. . . IN NOT CONSIDERING THE JOINT CLARIFICATORY STATEMENT OF THE ARRESTING OFFICERSTO THE EFFECT THAT THE ACCUSED IS NOT THE OWNER OF THE PROHIBITED DRUG SUBJECT OFTHIS CASE.

III

. . . IN NOT RULING THAT THE CONTRABAND SUBJECT OF THE INSTANT CASE IS INADMISSIBLEIN EVIDENCE FOR HAVING BEEN OBTAINED IN VIOLATION OF THE CONSTITUTIONAL RIGHT OFTHE ACCUSED AGAINST UNREASONABLE SEARCH (sic) AND SEIZURE." 7

The appeal is without merit. The decision appealed from must be upheld.

After a careful review and evaluation of the evidence, We find to have been fully proven thefollowing facts as summarized by the Solicitor General in the Brief for the Appellee. 8

"In the morning of September 12, 1988, Joseph Layong, a PC constable with the Mt. Province PCCommand at Bontoc, Mt. Province proceeded with other PC soldiers to Barrio Dantay, Bontoc and,per instruction of their officer, Capt. Eugene Martin, put up a checkpoint at the junction of theroads, one going to Sagada and the other to Bontoc (TSN, November 9, 1989, pp. 3-4). Theystopped and checked all vehicles that went through the checkpoint (TSN, April 5, 1990, p. 12).

At about 9:15 A.M., Layong and his teammate, Constable David Osborne Famocod (sic), saw andflagged down a cream-colored Ford Fiera bearing Plate No. ABT-634 coming from the BontocPoblacion and headed towards Baguio (TSN, November 9, 1989, pp. 4-5, 8). The vehicle wasdriven by appellant and had no passengers (TSN, November 9, 1989, pp. 4-5).

Layong and his companions asked permission to inspect the vehicle and appellant acceded to therequest. (TSN, November 9, 1989, pp. 4-5). When they peered into the rear of the vehicle, theysaw a travelling bag which was partially covered by the rim of a spare tire under the passengerseat on the right side of the vehicle (TSN, November 9, 1989, pp. 6, 10,


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11).chanrobles.com:cralaw:red

Layong and his companions asked permission to see the contents of the bag (TSN, November 9,1989, p. 6). Appellant consented to the request but told them that it only contained some clothes(TSN, November 9, 1989, p. 6). When Layong opened the bag, he found that it contained forty-one(41) plastic packets of different sizes containing pulverized substances (TSN, November 9, 1989,pp. 7, 9).

Layong gave a packet to his team leader, constable David Osborne Fomocod, who, after sniffingthe stuff concluded that it was marijuana (TSN, November 9, 1989, p. 16).

The PC constables, together with appellant, boarded the latters Ford Fiera and proceeded to the

Bontoc poblacion to report the incident to the PC Headquarters (TSN, November 9, 1989, pp. 7-8)The prohibited drugs were surrendered to the evidence custodian, Sgt. Angel Pokling (TSN,November 9, 1989, pp. 7-8).

Major Carlos Figueroa, a PC Forensic Chemist at Camp Dangwa, La Trinidad, Benguet, who hasconducted more than 2500 professional examinations of marijuana, shabu and cocaine samples,conducted two chemistry examinations of the substance contained in the plastic packets taken

from appellant and found them to be positive for hashish or marijuana (TSN, October 24, 1990, pp.3, 5-81)." 9

Anent the first assigned error, the accused contends that the prosecution failed to prove that he isthe owner of the marijuana found inside the travelling bag which he had in his vehicle, a Ford FieraProof of ownership is immaterial. Accused was prosecuted for the dispatching in transit ortransporting of prohibited drugs pursuant to Section 4, Article II of R.A. No. 6425, as amended.This section does not require that for one to be liable for participating in any of the proscribedtransactions enumerated therein, he must be the owner of the prohibited drug. It simply reads:

"SEC. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. Thepenalty of life imprisonment to death and a fine ranging from twenty thousand to thirty thousandpesos shall be imposed upon any person who, unless authorized by law, shall sell, administer,

deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, orshall act as a broker in any of such transactions. If the victim of the offense is a minor, or should aprohibited drug involved in any offense under this Section be the proximate cause of the death of avictim thereof, the maximum penalty herein provided shall be imposed."cralaw virtua1aw library

This section penalizes the pusher, who need not be the owner of the prohibited drug. The lawdefines pusher as "any person who sells, administers, delivers, or gives away to another, on anyterms whatsoever, or distributes, dispatches in transit or transports any dangerous drug or whoacts as a broker in any of such transactions, in violation of this Act. 10

In People v. Alfonso, 11 where the accused was charged with the unlawful transportation ofmarijuana under the aforesaid Section 4, this Court ruled that ownership is not a basic issue.

The facts, as proven by the prosecution, establish beyond cavil that the accused was caught in theact of transporting the prohibited drug or, in other words, in flagrante delicto. That he knew fullywell what he was doing is shown beyond moral certainty by the following circumstances: (a) theprohibited drug was found in a travelling bag, (b) he is the owner of the said bag, (c) he concealedthe bag behind a spare tire, (d) he was travelling alone, and (e) the Ford Fiera in which he loadedthe bag was under his absolute control, pursuant to Section 4, Rule 133 of the Rules of Court (oncircumstantial evidence), the combination of all these circumstances is such as to produce aconviction beyond reasonable doubt. Such circumstances, unrebutted by strong and convincingevidence by the accused, even gave rise to the presumption that he is the owner of the prohibiteddrug. 12


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The second assigned error is devoid of merit. The declaration in the joint clarificatory swornstatement executed by the apprehending officers, that the marijuana subject of the case wassurreptitiously placed by an unknown person in the bag of the accused, is not supported byevidence. Said sworn statement cannot be used as a basis for exoneration because the very sameofficers who signed the same reiterated on the witness stand their statements in their originalaffidavit implicating the accused, both the criminal complaint before the Municipal Trial Court ofLontoc and the information in this case were based on this original affidavit. No probative value

could be assigned to it not only because it was procured by the defense under questionablecircumstances, but also because the affiants therein merely expressed their personal opinion. Thetrial courts correct exposition on this point, to which nothing more may be added, deserves to bequoted,thus:

"From the portions of the Joint Clarificatory Sworn Statement- of prosecution witnesses Layongand Fomocod cited (Exhs. "I" to "I-C" ; p 155, Record), the defense would want this Court to drawthe inference that the accused Conway Omaweng is innocent as confirmed by no less than thepersons who apprehended the suspect in flagranti (sic). In other words, that the said accused isnot the owner of the contraband confiscated but someone else; that to (sic) mysterious individualplaced the prohibited articles inside the travelling bag of the accused without the knowledge andconsent of the latter; and that the identity of this shadowy third person is known by the PC/INP

investigators. The isolated declarations, albeit under oath are much too asinine to be true and donot affect the credibilities of the witnesses affiants and the truth of their affirmations on thestand. As gleaned from parts of the record of the reinvestigation of this case conducted by theProvincial Fiscal (Exhs "G" and "D" ; pp. 158 and 161, Record), it appears that Layong andFomocod were prevailed upon to affix their signatures to (sic) the document styled as JointClarificatory Sworn Statement by interested persons in a vain ploy to extricate the accused from

the morass he got himself into. Testifying in open court, the same witnesses maintained the tenorof their original affidavit supporting the filing of the criminal complaint in the lower court (Exh. "C"; p. 2, Record) No additional information was elicited from said witnesses during their examinationfrom which it can reasonably be deduced that a third person instead of the accused is the culpritand that the suspect is being framed-up for a crime he did not commit. Nonetheless, grantingarguendo that the declarations of Layong and Fomocod now the bone of contention, are on thelevel, the same are but mere opinions and conclusions without bases. Any which way, to believe

that any person in his right mind owning several kilos of hot hashish worth tens of thousands ofpesos would simply stash it away in the travelling bag of someone he has no previous agreementwith is a mockery of common sense. And to think further that the PC/INP agents know of such factyet they kept the vital information under confidential Status (whatever that means in police

parlance) while an innocent person is being prosecuted and practically in the shadow of the gallowsfor the offense would be stretching human credulity to the snapping point. By and large, the factremains as the circumstances logically indicate that the accused Conway Omaweng has knowledgeof the existence of the contraband inside his vehicle and he was caught red-handed transportingthe hot stuff." 13

The third assignment of error hardly deserves any consideration Accused was not subjected to anysearch which may be stigmatized as a violation of his Constitutional right against unreasonablesearches and seizures. 14 If one had been made, this Court would be the first to condemn it "asthe protection of the citizen and the maintenance of his constitutional rights is one of the highestduties and privileges of the Court." 15 He willingly gave prior consent to the search and voluntarilyagreed to have it conducted on his vehicle and travelling bag. Prosecution witness Joseph Layongtestifiedthus:

"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?


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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 containedin 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." 16

This testimony was not dented on cross-examination or rebutted by the accused for he chose notto testify on his own behalf.

Thus, the accused waived his right against unreasonable searches and seizures As this Court statedin People v. Malasugui: 17

". . . When one voluntarily submits to a search or consents to have it made of (sic) his person orpremises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8thed., vol. I, page 631.) The right to be secure from unreasonable search may, like every right, bewaived and such waiver may be made either expressly or impliedly."

Since in the course of the valid search forty-one (41) packages of drugs were found, it behoovedthe officers to seize the same; no warrant was necessary for such seizure. Besides, when saidpackages were identified by the prosecution witnesses and later on formally offered in evidence,the accused did not raise any objection whatsoever. Thus, in the accuseds Comments And/OrObjections To Offer of Evidence, 18 We merely find the following:

"EXHIBIT COMMENTS AND/OR OBJECTIONS

"A" The bag was not positively identified to be

the same bag allegedly found inside the

vehicle driven by the accused. The

arresting officers failed to show any

identifying marks; thug, said bag is an

irrelevant evidence not admissible in court;

"A-1" to "A-40" Objected to also as irrelevant as the 40

bags now being offered are not the same


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bags alleged in the information which is 41

bags. The prosecution failed to proved (sic)

beyond reasonable doubt that Exhibit "A-1"

to "A-40" are the same bags allegedly taken

from inside Exhibit "A" because what is

supposed to be inside the bag are 41 bags

and not 40 bags."cralaw virtua1aw library

x x x

WHEREFORE, the decision of Branch 36 of the Regional Trial t of Bontoc, Mountain Province of 21March 1991 in Criminal Case No. 713 finding the accused CONWAY B. OMAWENG guilty beyond

reasonable doubt of the crime charged, is hereby AFFIRMED

Costs against the accused.

SPOUSES LEOPOLDO and MA. LUISA VEROY, Petitioners, vs. THE HON. WILLIAM LLAYAGUE, Presiding Judge, Branch XIV, Regional Trial Court at Davao City; and BRIG.GEN. PANTALEON DUMLAO, Commanding General, PC-Criminal Investigation Service,

This was originally a petition forcertiorari, mandamusand prohibition under Rule 65 of the Rules ofCourt: certiorari, to review the Order of the respondent Judge dated October 2, 1990 denyingherein petitioner's Motion for Hospital Confinement; mandamus, to compel respondent Judge toresolve petitioners' long pending motion for bail; and prohibition, to enjoin further proceedings onthe ground that the legal basis therefore is unconstitutional for being violative of the due processand equal protection clauses of the Constitution. The facts of this case are as follows:

Petitioners are husband and wife who owned and formerly resided at No. 13 Isidro St., SkylineVillage. Catalunan Grande, Davao City. When petitioner Leopoldo Veroy was promoted to theposition of Assistant Administrator of the Social Security System sometime in June, 1988, he andhis family transferred to 130 K-8th St., East Kamias, Quezon City, where they are presentlyresiding. The care and upkeep of their residence in Davao City was left to two (2) houseboys,Jimmy Favia and Eric Burgos, who had their assigned quarters at a portion of the premises. TheVeroys would occasionally send money to Edna Soguilon for the salary of the said houseboys andother expenses for the upkeep of their house. While the Veroys had the keys to the interior of thehouse, only the key to the kitchen, where the circuit breakers were located, was entrusted to Edna

Soguilon to give her access in case of an emergency. Hence, since 1988, the key to the master'sbedroom as well as the keys to the children's rooms were retained by herein Petitioners so thatneither Edna Soguilon nor the caretakers could enter the house.

On April 12, 1990, Capt. Reynaldo Obrero of the Talomo Patrol Station, PC/INP, acting upon adirective issued by Metrodiscom Commander Col. Franco Calida, raided the house of hereinpetitioners in Davao City on information that the said residence was being used as a safehouse ofrebel soldiers. They were able to enter the yard with the help of the caretakers but did not enterthe house since the owner was not present and they did not have a search warrant. Petitioner Ma.Luisa was contacted by telephone in her Quezon City residence by Capt. Obrero to ask permissionto search the house in Davao City as it was reportedly being used as a hideout and recruitment


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center of rebel soldiers. Petitioner Ma. Luisa Veroy responded that she is flying to Davao City towitness the search but relented if the search would not be conducted in the presence of MajorErnesto Macasaet, an officer of the PC/INP, Davao City and a long time family friend of the Veroys.The authority given by Ma. Luisa Veroy was relayed by Capt. Obrero to Major Macasaet whoanswered that Ma. Luisa Veroy has called him twice by telephone on the matter and that thepermission was given on the condition that the search be conducted in his presence.

The following day, Capt. Obrero and Major Macasaet met at the house of herein petitioners inSkyline Village to conduct the search pursuant to the authority granted by petitioner Ma. LuisaVeroy. The caretakers facilitated their entry into the yard, and using the key entrusted to EdnaSoguilon, they were able to gain entrance into the kitchen. However, a locksmith by the name ofGeorge Badiang had to be employed to open the padlock of the door leading to the children's roomCapt. Obrero and Major Macasaet then entered the children's room and conducted the search.Capt. Obrero recovered a .45 cal. handgun with a magazine containing seven (7) live bullets in ablack clutch bag inside an unlocked drawer. Three (3) half-full jute sacks containing printedmaterials of RAM-SFP (samples of which were attached as Annexes "H" and "H-1" of the petition)(Rollo, pp. 49-55) were also found in the children's room. A search of the children's recreation andstudy area revealed a big travelling bag containing assorted polo shirts, men's brief, two (2) piecespolo barong and short sleeve striped gray polo. sweat shirt, two (2) pairs men's socks, a towe

made in U.S.A., one blanket, a small black bag, Gandhi brand, containing a book entitled "IslamicRevolution Future Path of the Nation", a road map of the Philippines, a telescope, a plastic bagcontaining assorted medicines and religious pamphlets was found in the master's bedroom. Sgt.Leo Justalero was instructed by Capt. Obrero to make an inventory and receipt of the articlesseized, in the house (Annex "F" of the Petition, Rollo, p. 48). Said receipt was signed by EricBurgos, one of the caretakers, and George Badiang, the locksmith, as witnesses. Sgt. Justaleroturned over the articles to Sgt. Rodolfo Urbano at the police station.

The case was referred for preliminary investigation to Quezon City Assistant Prosecutor RodolfoPonferrada who was designated Acting Provincial Prosecutor for Davao City by the Department ofJustice through Department Order No. 88 dated May 16, 1990. In a resolution dated August 6,1990, Fiscal Ponferrada recommended the filing of an information against herein petitioners forViolation of Presidential Decree No. 1866 (Illegal Possession of Firearms and Ammunitions in

Furtherance of Rebellion) (Annex "L" of the Petition, Rollo, p. 71). Hence, on August 8, 1990. anInformation for the said offense was filed by the Office of the City Prosecutor of Davao City beforethe Regional Trial Court, 11th Judicial Region, Davao City, docketed as Criminal Case No. 20595-90and entitled"People of the Philippines v. Atty. Leopoldo Veroy and Mrs. Maria Luisa Veroy" (Annex"K" of the Petition, Rollo, p. 70). No bail was recommended by the prosecution.

The aforementioned resolution dated August 6, 1990 of Fiscal Ponferrada was received by thepetitioners on August 13, 1990. On the same day, the latter filed a Motion for Bail before hereinrespondent Judge Layague which was denied on August 17, 1990 for being premature since at thattime, petitioners had not yet been arrested. Despite the fact that the warrants for their arrest havenot yet been served on them, herein petitioners voluntarily surrendered themselves to Brig. Gen.Pantaleon Dumlao, PC-CIS Chief, since it was the CIS that initiated the complaint. However, the

latter refused to receive them on the ground that his office has not yet received copies of theirwarrants of arrest.

In the meantime, on August 15, 1990, herein petitioners were admitted to the St. Luke's Hospitalfor various ailments brought about or aggravated by the stress and anxiety caused by the filing ofthe criminal complaint. On August 17, 1990, Brig. Gen. Dumlao granted their request that they beallowed to be confined at the hospital and placed under guard thereat.

In an Indorsement dated August 20, 1990, the CIS through Capt. Benjamin de los Santos, made itsreturn to the trial court informing the latter of the voluntary surrender of herein petitioners and thefact that they were under hospital confinement. Herein Petitioner reiterated their Motion for Bail. In


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an Order dated August 24, 1990 (Annex "M" of the Petition, Rollo, p. 74), the hearing for theMotion for Ball was set for August 31, 1990 to enable the prosecution to present evidence itopposition to said motion. The prosecution filed its written opposition (Annex "N" of thePetition, Rollo, p. 75) on August 28, 1990, arguing that the evidence of petitioners' guilt was strongand thereafter presented its evidence.

On September 21, 1990, respondent Judge required the CIS to produce the bodies of herein

petitioners on October 1, 1990 for arraignment (Annex "O" of the Petition, Rollo, p. 76). Upon theirarraignment, herein Petitioners entered a plea of not guilty and filed an "Urgent Motion for HospitaConfinement" (Annex "OO" of the Petition Rollo, p. 77) which was denied by the court in its Orderdated October 2, 1990 (Annex "P" of the Petition, Rollo, p. 80). It likewise ordered theircommitment at the Davao City Rehabilitation Center, Ma-a, Davao City pending trial on the merits.Herein petitioners argued orally a motion for reconsideration which was opposed by theprosecution. At the conclusion thereof, the court a quo issued a second order annex "Q" of thePetition,Rollo, p. 83) denying then motion for reconsideration and as to the alternative prayer toreopen the motion for hospital confinement, set the continuance thereof to October 17, 1990. Itwas further ordered that the petitioners shall remain under the custody of the PC-CIS pendingresolution of the case.

Meanwhile, petitioners were returned to the St. Luke's Hospital where their physical conditionremained erratic. On or about October 18, 1990, herein petitioners were informed that Brig. Gen.Dumlao had issued a directive for their transfer from the St. Luke's Hospital to Camp Crame on thebasis of the October 2, 1990 Order (Annex "Q" of the Petition, Rollo, p. 83). Petitioners maderepresentations that the tenor of the court order warranted maintenance of the status quo, i.e.they were to continue their hospital confinement. However, Brig, Gen. Dumlao informed them thatunless otherwise restrained by the court, they would proceed with their transfer pursuant to theorder of the trial court.

Hence, this petition on October 25, 1990 this Court issued a Temporary Restraining Order, effectiveimmediately and continuing until further orders from this Court, ordering: (a) respondent Hon.William L. Layague to refrain from further proceeding with petitioners' "Motion for HospitaConfinement" in Criminal Case No. 20595-90 entitled "People of the Philippines v. Leopoldo Veroyand Ma. Luisa Veroy"; and (b) respondent Brig. Gen. Pantaleon Dumlao to refrain from transferringpetitioners from the St. Luke's Hospital (Rollo, pp. 84-A to 84-C).

On November 2, 1990, respondent Judge issued an order denying petitioners' Motion for Bai(Annex "A" of the Second Supplemental Petition, Rollo, p. 133). Petitioners filed a SupplementaPetition on November 7, 1990 (Rollo, P. 105) and a Second Supplemental Petition on November16, 1990 (Rollo, p. 120) which sought to review the order of the trial court dated November 2,1990 denying their petition for bail.

Acting on the Supplemental Petition filed by Petitioners and taking into consideration severalfactors such as: a) that the possibility that they will flee or evade the processes of the court isfairly remote; b) their poor medical condition; and c) the matters in their Second Supplemental

Petition especially since the prosecution's evidence refers to constructive possession of thedisputed firearms in Davao City through the two (2) caretakers while petitioners lived in Manilasince 1988, this Court, on November 20, 1990, granted petitioners' provisional liberty and set thebail bond at P20,000.00 each (Rollo, p. 141). Petitioners posted a cash bond in the said amount onNovember 23, 1990 (Rollo, pp. 143-145).

The petition was given due course on July 16, 1991 (Rollo, p. 211). Respondents adopted theirComment dated December 28, 1990 (Rollo, pp. 182-191) as their Memorandum while, petitionersfiled their Memorandum on September 9, 1991 (Rollo, pp. 218-269).


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As submitted by the respondents, and accepted by petitioners, the petition formandamusto comperespondent Judge to resolve petitioners' Motion for Bail, and the petition for certiorari to review theorder of respondent judge initially denying their Motion for Hospital Confinement, were renderedmoot and academic by the resolutions of this Court dated November 20, 1990 and October 25,1990, respectively. What remains to be resolved is the petition for prohibition where petitionersraised the following issues:

1. Presidential Decree No. 1866, or at least the third paragraph of Section 1 thereof, isunconstitutional for being violative of the due process and equal protection clauses of theConstitution;

2. Presidential Decree No. 1866 has been repealed by Republic Act No. 6968;

3. Assuming the validity of Presidential Decree No. 1866 the respondent judge gravely abused hisdiscretion in admitting in evidence certain articles which were clearly inadmissible for beingviolative of the prohibition against unreasonable searches and seizures.

The issue of constitutionality of Presidential Decree No. 1866 has been laid to rest in the caseof Misolas v. Panga, G.R. No. 83341, January 30, 1990 (181 SCRA 648), where this Court held that

the declaration of unconstitutionality of the third paragraph of Section 1 of Presidential Decree No.1866 is wanting in legal basis since it is neither a bill of attainder nor does it provide a possibility ofa double jeopardy.

Likewise, petitioners' contention that Republic Act 6968 has repealed Presidential Decree No. 1866is bereft of merit. It is a cardinal rule of statutory construction that where the words and phrases ofa statute are not obscure or ambiguous. its meaning and the intention of the legislature must bedetermined from the language employed, and where there is no ambiguity in the words, there is noroom for construction (Provincial Board of Cebu v. Presiding Judge of Cebu, CFI, Br. IV, G.R. No.34695, March 7, 1989 [171 SCRA 1]). A perusal of the aforementioned laws would reveal that thelegislature provided for two (2) distinct offenses: (1) illegal possession of firearms underPresidential Decree No. 1866; and (2) rebellion, coup d' etat, sedition and disloyalty under Republic

Act 6968; evidently involving different subjects which were not clearly shown to have eliminatedthe others.

But petitioners contend that Section 1 of Presidential Decree No. 1866 is couched in general orvague terms. The terms "deal in", "acquire", "dispose" or "possess" are capable of variousinterpretations such that there is no definiteness as to whether or not the definition includes"constructive possession" or how the concept of constructive possession should be applied.Petitioners were not found in actual possession of the firearm and ammunitions. They were inQuezon City while the prohibited articles were found in Davao City. Yet they were being chargedunder Presidential Decree No. 1866 upon the sole circumstance that the house wherein the itemswere found belongs to them (Memorandum for Petitioners, Rollo, pp. 242-244).

Otherwise stated, other than their ownership of the house in Skyline Village, there was no otherevidence whatsoever that herein petitioners possessed or had in their control the items seized(Ibid., pp. 248-250). Neither was it shown that they had the intention to possess the Firearms or tofurther rebellion (Ibid., P. 252).

In a similar case, the revolver in question was found in appellant's store and the question arousewhether he had possession or custody of it within the meaning of the law.

This Court held that:


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The animus possidendimust be proved in opium cases where the prohibited drug was found on thepremises of the accused and the same rule is applicable to the possession of firearms. Theappellant denied all knowledge of the existence of the revolver, and the Government's principawitness stated that there were a number of employees in the store. The only testimony whichtends to show that the appellant had the possession or custody of this revolver is the inferencedrawn from the fact that it was found in his store, but we think that this inference is overcome bythe positive testimony of the appellant, when considered with the fact that there were a number of

employees in the store, who, of course, could have placed the revolver in the secret place where itwas found without the knowledge of the appellant. At least there is a very serious doubt whetherhe knew of the existence of this revolver. In such case the doubt must be resolved in favor of theappellant. (U.S. v. Jose and Tan Bo., 34 Phil. 724 [1916])

But more importantly, petitioners question the admissibility in evidence of the articles seized inviolation of their constitutional right against unreasonable search and seizure.

Petitioners aver that while they concede that Capt. Obrero had permission from Ma. Luisa Veroy tobreak open the door of their residence, it was merely for the purpose of ascertaining thereat thepresence of the alleged "rebel" soldiers. The permission did not include any authority to conduct aroom to room

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