Dear Sir

Eight weeks ago, the police forcibly entered our home on the basis of tsismis of our neighbors that my son pushed drugs and possessed deadly weapons. He was so frightened that despite my pleas to present a warrant (they had none) my son presented his collection of large bolos, an improvised 22 cal a very small amount of cannabis leaves.

Later at the PAO tells me that they will resist the presentation of evidence on the ground of exclusionary rule. Please tell me more of this.

Alona

Hello Alona

Section 3 (2), Article 3, of the 1987 Constitution, provides that “any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.”

Section 3 of the Rules of Court. Admissibility of evidence further provides that evidence is admissible when it is relevant to the issue and is not excluded by law or these rules

The Exclusionary Rule raised by the PAO is the principle that bars evidence obtained from an illegal arrest, unreasonable search or coercive investigation, or in violation of a particular law. The Judge will exclude these from trial and not be admitted as evidence. Note the twin postulates

  1. The principle judges the admissibility of evidence based on how the evidence is obtained or acquired and not what the evidence proves.
  2. The principle is to be applied only if it is so expressly provided for by the constitution or by a particular law. Even if the manner of obtaining the evidence is in violation of a certain law but the law does not declare that the evidence is inadmissible, then such evidence will be admissible.

In sum, pieces of evidence harvested despite Constitution exhortation, particularly the provisions on the Bill of Rights are worthless. Citizens are protected from unreasonable searches and seizures conducted by the PNP, military or NBI The provision tells us that evidence obtained and confiscated on the occasion of such unreasonable searches and seizures is abhorrent and should be excluded for being a fruit of the poisonous tree.

The ruling in the recent case of Republic vs Gonzales (GR 205926, July 22, 2015) gives anexplains the power ofExclusionary Rule. Thus:

The Court’s Ruling

The petition is meritorious.

Section 2, Article III 21 of the Constitution mandates that a search and seizure must be carried out through or on the strength of a judicial warrant predicated upon the existence of probable cause; in the absence of such warrant, such search and seizure becomes, as a general rule, “unreasonable” within the meaning of said constitutional provision. To protect people from unreasonable searches and seizures, Section 3 (2), Article III 22 of the Constitution provides an exclusionary rule which instructs that evidence obtained and confiscated on the occasion of such unreasonable searches and seizures are deemed tainted and should be excluded for being the proverbial fruit of a poisonous tree. In other words, evidence obtained from unreasonable searches and seizures shall be inadmissible in evidence for any purpose in any proceeding. 23

The exclusionary rule is not, however, an absolute and rigid proscription. One of the recognized exceptions established by jurisprudence is a search incident to a lawful arrest. 24 In this instance, the law requires that there first be a lawful arrest before a search can be made – the process cannot be reversed. 25 Section 5, Rule 113 of the Revised Rules on Criminal Procedure lays down the rules on lawful warrantless arrests, as follows:

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 just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances 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 is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with Section 7 of Rule 112.

The aforementioned provision provides three (3) instances when a warrantless arrest may be lawfully effected: (a) arrest of a suspect in flagrante delicto; (b) arrest of a suspect where, based on personal knowledge of the arresting officer, there is probable cause that said suspect was the perpetrator of a crime which had just been committed; ( c) arrest of a prisoner who has escaped from custody serving final judgment or temporarily confined during the pendency of his case or has escaped while being transferred from one confinement to another. 26

For a warrantless arrest under Section 5 (a) to operate, two (2) elements must concur, namely: (a) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and ( b) such overt act is done in the presence or within the view of the arresting officer. 27 On the other hand, Section 5 (b) requires for its application that at the time of the arrest, an offense had in fact just been committed and the arresting officer had personal knowledge of facts indicating that the accused had committed it.28

In both instances, the officer’s personal knowledge of the fact of the commission of an offense is absolutely required. Under Section 5 (a), the officer himself witnesses the crime; while in Section (b), he knows for a fact that a crime has just been committed. 29

A judicious review of the factual milieu of the instant case reveals that there could have been no lawful warrantless arrest made on Comerciante. P03 Calag himself admitted that he was aboard a motorcycle cruising at a speed of around 30 kilometers per hour when he saw Comerciante and Dasilla standing around and showing “improper and unpleasant movements,” with one of them handing plastic sachets to the other. On the basis of the foregoing, he decided to effect an arrest. P03 Calag’s testimony on direct examination is revelatory:

Pros. Silao:

Q: Now on July 30, 2003 around 10:00 o’clock in the evening, kindly tell the court where were you?

A: We were then conducting our patrol on a motorbike ma’ am.

x x x x

Q: And who were with you while you were patrolling?

A: Eduardo Radan, Ma’ am.

Q: And who is this Eduardo Radan?

A: He is an agent of the Narcotics Group, ma’am.

Q: While you were along Private Road, Hulo, Mandaluyong City, what unusual incident that happened if any?

A: We spotted somebody who was then as if handing a plastic sachet to someone.

x x x x

Q: Now how far were you when you saw this incident from these two male persons you already identified?

A: About ten (10) meters away ma’am.

Q: What were their positions in relation to you when you saw them in that particular act?

A: They were quite facing me then.

0: What was the speed of your motorcycle when you were traversing this Private Road, Hulo, Mandaluyong City?

A: About thirty (30) kilometers per hour, ma’am.

Q: And who was driving the motorcycle?

A: Eduardo Radan, ma’am.

Q: When you spotted them as if handing something to each other, what did you do?

A: We stopped ma’am.

Q: And how far were you from them when you stopped, more or less?

A: We passed by them for a short distance before we stopped ma’am.

Q: And after you passed by them and you said you stopped, what was the reaction of these two male persons?

A: They were surprised, ma’am.

x x x x

Q: And what was their reaction when you said you introduced yourself as police officer?

A: They were surprised.

Q: When you say “nabigla” what was their reaction that made you say that they were surprised?

A: They were stunned.

Q: After they were stunned, what did you do next, police officer?

A: I arrested them, ma’ am. I invited them.

Q: What did you say to them? How did you invite them? In short, napakasimple Lang ng tanong ko sa yo eh. Did you say anything?

Court:

Mr. Witness, stop making unnecessary movements, just listens.

Pros. Silao: Are you fit to testify? May sakit ka ba o wala? Witness: Wala po.

Pros. Silao: Eh, bakit di ka makapagsalita?

Court: You keep touching your eyes. Just relax. Answer the question, ano sinabi mo sa kanila?

Pros. Silao: Are you fit to testify? Wala ka bang sakit?

Witness: Wala po.

x x x x

Q: From what portion of his body, I am referring to Alvin Comerciante did you recover the plastic sachet?

A: From his hand ma’am.

Q: Left or right hand?

Pros. Silao: You cannot recall? Hindi mo matandaan. Sabihin mo Kung Hindi mo matandaan, no problem. Kaliwa, kanan or you cannot recall? 30

(Emphases and underscoring supplied)

On the basis of such testimony, the Court finds it highly implausible that P03 Calag, even assuming that he has perfect vision, would be able to identify with reasonable accuracy – especially from a distance of around 10 meters, and while aboard a motorcycle cruising at a speed of 30 kilometers per hour – miniscule amounts of white crystalline substance inside two (2) very small plastic sachets held by Comerciante. The Court also notes that no other overt act could be properly attributed to Comerciante as to rouse suspicion in the mind of P03 Calag that the former had just committed, was committing, or was about to commit a crime. Verily, the acts of standing around with a companion and handing over something to the latter cannot in any way be considered criminal acts. In fact, even if Comerciante and his companion were showing “improper and unpleasant movements” as put by P03 Calag, the same would not have been sufficient in order to effect a lawful warrantless arrest under Section 5 (a), Rule 113 of the Revised Rules on Criminal Procedure. 31 That his reasonable suspicion bolstered by (a) the fact that he had seen his fellow officers arrest persons in possession of shabu; and (b) his trainings and seminars on illegal drugs when he was still assigned in the province are insufficient to create a conclusion that what he purportedly saw in Comerciante was indeed shabu. 32

Neither has the prosecution established that the rigorous conditions set forth in Section 5 (b), Rule 113, have been complied with, i.e., that an offense had in fact just been committed and the arresting officer had personal knowledge of facts indicating that the accused had committed it. As already discussed, the factual backdrop of the instant case failed to show that P03 Calag had personal knowledge that a crime had been indisputably committed by Comerciante. Verily, it is not enough that the arresting officer had reasonable ground to believe that the accused had just committed a crime; a crime must, in fact, have been committed first, which does not obtain in this case. 33

In this relation, the Court finds respondent’s assertion that there was a valid “stop and frisk” search made on Comerciante untenable. In People v. Cogaed, 34 the Court had an opportunity to exhaustively explain “stop and frisk” searches:

“Stop and frisk” searches (sometimes referred to as Terry searches) are necessary for law enforcement.1a\^/phi1 That is, law enforcers should be given the legal arsenal to prevent the commission of offenses. However, this should be balanced with the need to protect the privacy of citizens in accordance with Article III, Section 2 of the Constitution.

The balance lies in the concept of “suspiciousness” present where the police officer finds himself or herself in. This may be undoubtedly based on the experience of the police officer. Experienced police officers have personal experience dealing with criminals and criminal behavior. Hence, they should have the ability to discern – based on facts that they themselves observe – whether an individual is acting in a suspicious manner. Clearly, a basic criterion would be that the police officer, with his or her personal knowledge, must observe the facts leading to the suspicion of an illicit act.

x x x x

Normally, “stop and frisk” searches do not give the law enforcer an opportunity to confer with a judge to determine probable cause. In Posadas v. Court of Appeals, one of the earliest cases adopting the “stop and frisk” doctrine in Philippine jurisprudence, this court approximated the suspicious circumstances as probable cause:

The probable cause is that when the petitioner acted suspiciously and attempted to flee with the buri bag there was a probable cause that he was concealing something illegal in the bag and it was the right and duty of the police officers to inspect the same.

For warrantless searches, probable cause was defined as “a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person accused is guilty of the offense with which he is charged.

Malacat v. Court of Appeals clarifies the requirement further. It does not have to be probable cause, but it cannot be mere suspicion. It has to be a genuine reason to serve the purposes of the “stop and frisk” exception:

Other notable points of Terry are that while probable cause is not required to conduct a “stop and frisk,” it nevertheless holds that mere suspicion or a hunch will not validate a “stop and frisk.” A genuine reason must exist, in light of the police officer’s experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him.

In his dissent for Esquillo v. People, Justice Bersamin reminds us that police officers must not rely on a single suspicious circumstance. There should be “presence of more than one seemingly innocent activity, which, taken together, warranted a reasonable inference of criminal activity.” The Constitution prohibits “umeasonable searches and seizures.” Certainly, reliance on only one suspicious circumstance or none at all will not result in a reasonable search. [35]] (Emphases and underscoring supplied)

In this case, the Court reiterates that Comerciante’ s acts of standing around with a companion and handing over something to the latter do not constitute criminal acts.1âwphi1 These circumstances are not enough to create a reasonable inference of criminal activity which would constitute a “genuine reason” for P03 Calag to conduct a “stop and frisk” search on the former. In this light, the “stop and frisk” search made on Comerciante should be deemed unlawful.

In sum, there was neither a valid warrantless arrest nor a valid “stop and frisk” search made on Comerciante. As such, the shabu purportedly seized from him is rendered inadmissible in evidence for being the proverbial fruit of the poisonous tree. Since the confiscated shabu is the very corpus delicti of the crime charged, Comerciante must necessarily be acquitted and exonerated from all criminal liability.

WHEREFORE, the petition is GRANTED. Accordingly, ‘the Decision dated October 20, 2011 and the Resolution dated February 19, 2013 of the Court of Appeals in CA-G.R. CR No. 32813 are hereby REVERSED and SET ASIDE. Accordingly, petitioner Alvin Comerciante y Gonzales is hereby ACQUITTED of the crime of violating Section 11, Article II of Republic Act No. 9165. The Director of the Bureau of Corrections is ordered to cause his immediate release, unless he is being lawfully held for any other reason.

SO ORDERED.

ESTELA M PERLAS-BERNABE
Associate Justice

WE CONCUR:

DIOSDADO M. PERALTA*
Associate Justice

LUCAS P.BERSAMIN**
Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice

MARVIC M.V.F. LEONEN***
Associate Justice

A T T E S T A T I O N