[G.R. No. 144037. September 26, 2003.

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. NOEL TUDTUD y PAYPA and DINDO BOLONG y

DECISION

TINGA, J.:

. . . . It is desirable that criminals should be detected, and to that end that all available evidence should be
used. It also is desirable that the government should not itself foster and pay for other crimes, when they
are the means by which the evidence is to be obtained. If it pays its officers for having got evidence by
crime, I do not see why it may not as well pay them for getting it in the same way, and I can attach no
importance to protestations of disapproval if it knowingly accepts and pays and announces that it will pay for
the fruits. We have to choose, and for my part I think it a less evil that some criminals should escape than
that the government should play an ignoble part. chanrob1es virtua1 1aw 1ibrary

So wrote Justice Oliver Wendell Holmes in Olmstead v. U.S. 1 On this occasion, this Court is made to choose
between letting suspected criminals escape or letting the government play an ignoble part.

Sometime during the months of July and August 1999, the Toril Police Station, Davao City received a report
from a "civilian asset" named Bobong Solier about a certain Noel Tudtud. 2 Solier related that his neighbors
have been complaining about Tudtud, who was allegedly responsible for the proliferation of marijuana in
their area. 3 

Reacting to the report, PO1 Ronald Desierto, PO1 Ramil Floreta and their superior, SPO1 Villalonghan, 4 all
members of the Intelligence Section of the Toril Police Station, conducted surveillance in Solier’s
neighborhood in Sapa, Toril, Davao City. 5 For five days, they gathered information and learned that Tudtud
was involved in illegal drugs. 6 According to his neighbors, Tudtud was engaged in selling marijuana. 7 

On August 1, 1999, Solier informed the police that Tudtud had headed to Cotabato and would be back later
that day with new stocks of marijuana. 8 Solier described Tudtud as big-bodied and short, and usually wore
a hat. 9 At around 4:00 in the afternoon that same day, a team composed of PO1 Desierto, PO1 Floreta and
SPO1 Villalonghan posted themselves at the corner of Saipon and McArthur Highway to await Tudtud’s
arrival. 10 All wore civilian clothes. 11 

About 8:00 later that evening, two men disembarked from a bus and helped each other carry a carton 12
marked "King Flakes." 13 Standing some five feet away from the men, PO1 Desierto and PO1 Floreta
observed that one of the men fit Tudtud’s description. 14 The same man also toted a plastic bag. 15 

PO1 Floreta and PO1 Desierto then approached the suspects and identified themselves as police officers. 16
PO1 Desierto informed them that the police had received information that stocks of illegal drugs would be
arriving that night. 17 The man who resembled Tudtud’s description denied that he was carrying any drugs.
18 PO1 Desierto asked him if he could see the contents of the box. 19 Tudtud obliged, saying, "it was
alright." 20 Tudtud opened the box himself as his companion looked on. 21 

The box yielded pieces of dried fish, beneath which were two bundles, one wrapped in a striped plastic bag
22 and another in newspapers. 23 PO1 Desierto asked Tudtud to unwrap the packages. 24 They contained
what seemed to the police officers as marijuana leaves.25 cralaw:red

The police thus arrested Tudtud and his companion, informed them of their rights and brought them to the
police station. 26 The two did not resist. 27 

The confiscated items were turned over to the Philippine National Police (PNP) Crime Laboratory for
examination. 28 Forensic tests conducted by Police Chief Inspector Noemi Austero, forensic chemist of the
PNP Crime Laboratory, Region XI, on specimens taken from the confiscated items confirmed the police
officers’ suspicion. The plastic bag contained 3,200 grams of marijuana leaves while the newspapers
contained another 890 grams. 29 Police Chief Inspector Austero reduced her findings in her report, Physical
Sciences Report No. D-220-99 dated 2 August 1999. 30 
Noel Tudtud and his companion, Dindo Bulong, were subsequently charged 31 before the Regional Trial
Court (RTC) of Davao City with illegal possession of prohibited drugs. 32 Upon arraignment, both accused
pleaded not guilty. 33 The defense, however, reserved their right to question the validity of their arrest and
the seizure of the evidence against them. 34 

Trial ensued thereafter.

The prosecution presented five witnesses, namely, arresting officers PO1 Desierto and PO1 Floreta, their
civilian informant Bobong Solier, forensic chemist Police Chief Inspector Noemi Austero, and SPO3 Nicolas
Algabre, exhibit custodian of the PNP Crime Laboratory. Said witnesses testified to the foregoing narration of
facts.
chanrob1es virtua1 1aw 1ibrary

The accused, denying the charges against them, cried frame-up.

Noel Tudtud recalled that on August 1, 1999 he had gone to Kabacan, North Cotabato to sell pairs of Levi’s
pants, which was his "sideline." 35 At about 5:00 in the afternoon, he returned to Davao City by bus. 36
Upon reaching Toril, Tudtud, along with less than ten passengers, got down the bus. 37 

Suddenly, a man who identified himself as a police officer approached him, pointing a .38 caliber revolver.
38 The man told him not to run. 39 Tudtud raised his arms and asked, "Sir, what is this about?" 40 The man
answered that he would like to inspect the plastic bag Tudtud was carrying, and instructed Tudtud to open
the bag, which revealed several pairs of Levi’s pants. 41 

The man then directed Tudtud to open a carton box some two meters away. 42 According to Tudtud, the
box was already there when he disembarked the bus. 43 Tudtud told the man the box was not his, but
proceeded to open it out of fear after the man again pointed his revolver at him. 44 Tudtud discovered
pieces of dried fish, underneath which was something wrapped in cellophane. 45 

"What is that?" the man asked. 46 Tudtud replied that he did not know. 47 Without even unwrapping the
cellophane, the man said it was marijuana and abruptly handcuffed Tudtud. 48 

Simultaneously, another man was pointing a firearm at Dindo Bolong at the other side of the street, some
eight meters from Tudtud. 49 

Bolong recounted that he was on his way to a relative in Daliao after attending a cousin’s wedding in
Hagonoy, Davao del Sur when he was accosted. 50 After alighting the bus, Bolong crossed the street. 51
Someone then approached him and pointed a gun at him. 52 The man ordered him not to move and
handcuffed him. 53 Bolong asked why he was being arrested but the man just told him to go with them. 54 

The suspects were then taken to the police station where, they would later claim, they met each other for
the first time. 55 

Assailing the credibility of informant Bobong Solier, the defense offered the testimonies of Felicia Julaton, 56
Branch 3 Clerk of Court, Claudio Bohevia, 57 Branch 7 Clerk of Court, and Mercedita Abunda, 58 Branch 9
Utility Clerk, all of the Davao City Municipal Trial Circuit Court. They testified and presented court documents
showing that one "Bobo" or "Bobong" Ramirez was charged in their respective branches with various crimes,
specifically, light threats, less serious physical injuries and robbery. The defense asserted that the "Bobo" or
"Bobong" Ramirez accused in these cases is the same person as the informant Bobong Solier. 59 

Swayed by the prosecution’s evidence beyond reasonable doubt, the RTC rendered judgment convicting
both accused as charged and sentencing them to suffer the penalty of reclusion perpetua and to pay a fine
of P500,000.00. 60 

On appeal, Noel Tudtud and Dindo Bolong assign, among other errors, the admission in evidence of the
marijuana leaves, which they claim were seized in violation of their right against unreasonable searches and
seizures.

The right against unreasonable searches and seizures is secured by Section 2, Article III of the Constitution,
which states: chanrob1es virtual 1aw library

SEC. 2. The right of the people to be secured in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the places to be searched and the persons or things to be seized.

The rule is that a search and seizure must be carried out through or with a judicial warrant; otherwise, such
search and seizure becomes "unreasonable" within the meaning of the above-quoted constitutional
provision, and any evidence secured thereby, will be inadmissible in evidence "for any purpose in any
proceeding." 61 Section 3 (2), Article III of the Constitution explicitly provides: chanrob1es virtual 1aw library

(2) Any evidence obtained in violation of . . . the preceding section shall be inadmissible for any purpose in
any proceeding.

The proscription in Section 2, Article III, however, covers only "unreasonable" searches and seizures. The
following instances are not deemed "unreasonable" even in the absence of a warrant: chanrob1es virtual 1aw library

1. Warrantless search incidental to a lawful arrest. (Sec. 12, Rule 126 of the Rules of Court and prevailing
jurisprudence);

2. Search of evidence in "plain view." The elements are: (a) a prior valid intrusion based on the valid
warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the
evidence was inadvertently discovered by the police who have the right to be where they are; (c) the
evidence must be immediately apparent; (d) "plain view" justified mere seizure of evidence without further
search;

3. Search of a moving vehicle. Highly regulated by the government, the vehicle’s inherent mobility reduces
expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable
suspicion amounting to probable cause that the occupant committed a criminal activity;

4. Consented warrantless search;

5. Customs search;

6. Stop and Frisk; and

7. Exigent and emergency circumstances. 62 

The RTC justified the warrantless search of appellants’ belongings under the first exception, as a search
incident to a lawful arrest. It cited as authorities this Court’s rulings in People v. Claudio, 63 People v.
Tangliben, 64 People v. Montilla, 65 and People v. Valdez. 66 The Office of the Solicitor General (OSG), in
arguing for the affirmance of the appealed decision, invokes the cases of People v. Maspil, Jr., 67 People v.
Malmstedt, 68 and People v. Bagista. 69 

A search incidental to a lawful arrest is sanctioned by the Rules of Court. Prior to its revision in 2000,
Section 12, 70 Rule 126 of said Rules read as follows: chanrob1es virtual 1aw library

SEC. 12. Search incident to lawful arrest. — A person lawfully arrested may be searched for dangerous
weapons or anything which may be used as proof of the commission of an offense, without a search
warrant.

Section 5 (a), Rule 113 of the Rules, in turn, allows warrantless arrests: chanrob1es virtual 1aw library

SEC. 5. Arrest without warrant; when lawful. — A peace officer or a person may, without a warrant, arrest a
person: chanrob1es virtual 1aw library

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting
to commit an offense;

x           x           x

It is significant to note that the search in question preceded the arrest. Recent jurisprudence holds that the
arrest must precede the search; the process cannot be reversed. 71 Nevertheless, a search substantially
contemporaneous with an arrest can precede the arrest if the police have probable cause to make the arrest
at the outset of the search. 72 The question, therefore, is whether the police in this case had probable cause
to arrest appellants. Probable cause has been defined as: chanrob1es virtual 1aw library

an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when, in the
absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably
guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently
strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable
suspicion therefore must be founded on probable cause, coupled with good faith of the peace officers
making the arrest. 73 

The long-standing rule in this jurisdiction, applied with a great degree of consistency, is that "reliable
information" alone is not sufficient to justify a warrantless arrest under Section 5 (a), Rule 113. The rule
requires, in addition, that the accused perform some overt act that would indicate that he "has committed,
is actually committing, or is attempting to commit an offense." cralaw virtua1aw library

In the leading case of People v. Burgos, 74 this Court held that "the officer arresting a person who has just
committed, is committing, or is about to commit an offense must have personal knowledge of that fact. The
offense must also be committed in his presence or within his view." 75 In Burgos, the authorities obtained
information that the accused had forcibly recruited one Cesar Masamlok as member of the New People’s
Army, threatening the latter with a firearm. Upon finding the accused, the arresting team searched his
house and discovered a gun as well as purportedly subversive documents. This Court, in declaring then
Section 6 (a), Rule 113 of the Rules of Court inapplicable, ruled that: chanrob1es virtual 1aw library

There is no such personal knowledge in this case. Whatever knowledge was possessed by the arresting
officers, it came in its entirety from the information furnished by Cesar Masamlok. The location of the
firearm was given by the appellant’s wife.

At the time of the appellant’s arrest, he was not in actual possession of any firearm or subversive document.
Neither was he committing any act which could be described as subversive. He was, in fact, plowing his field
at the time of the arrest.

The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his
liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the requirement
of warrants of arrest is strictly construed. Any exception must clearly fall within the situations when securing
a warrant would be absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally
construe the rule on arrests without warrant or extend its application beyond the cases specifically provided
by law. To do so would infringe upon personal liberty and set back a basic right so often violated and so
deserving of full protection. 76 

Consequently, the items seized were held inadmissible, having been obtained in violation of the accused’s
constitutional rights against unreasonable searches and seizures. chanrob1es virtua1 1aw 1ibrary

In People v. Aminnudin, 77 this Court likewise held the warrantless arrest and subsequent search of
appellant therein illegal, given the following circumstances: chanrob1es virtual 1aw library

. . . the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that
he was about to do so or that he had just done so. What he was doing was descending the gangplank of the
M/V Wilcon 9 and there was no outward indication that he called for his arrest. To all appearances, he was
like any of the other passengers innocently disembarking from the vessel. It was only when the former
pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to
apprehension. It was the furtive finger that triggered his arrest. The identification by the informer was the
probable cause as determined by the officers (and not a judge) that authorized them to pounce upon
Aminnudin and immediately arrest him. 78 

Thus, notwithstanding tips from confidential informants and regardless of the fact that the search yielded
contraband, the mere act of looking from side to side while holding one’s abdomen, 79 or of standing on a
corner with one’s eyes moving very fast, looking at every person who came near, 80 does not justify
warrantless arrest under said Section 5 (a). Neither does putting something in one’s pocket, 81 handing
over one’s baggage, 82 riding a motorcycle, 83 nor does holding a bag on board a trisikad 84 sanction State
intrusion. The same rule applies to crossing the street per se. 85 
Personal knowledge was also required in the case of People v. Doria. 86 Recently, in People v. Binad Sy
Chua, 87 this Court declared invalid the arrest of the accused, who was walking towards a hotel clutching a
sealed Zest-O juice box. For the exception in Section 5 (a), Rule 113 to apply, this Court ruled, two
elements must concur: (1) the person to be arrested must execute an overt act indicating he has just
committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the
presence or within the view of the arresting officer. Reliable information alone is insufficient.

In the following cases, the search was held to be incidental to a lawful arrest because of "suspicious"
circumstances: People v. Tangliben 88 (accused was "acting suspiciously"), People v. Malmstedt 89 (a bulge
on the accused’s waist), and People v. de Guzman 90 (likewise a bulge on the waist of the accused, who was
wearing tight-fitting clothes).

There is, however, another set of jurisprudence that deems "reliable information" sufficient to justify a
search incident to a warrantless arrest under Section 5 (a), Rule 113, thus deviating from Burgos. To this
class of cases belong People v. Maspil, Jr., 91 People v. Bagista, 92 People v. Balingan, 93 People v. Lising,
94 People v. Montilla, 95 People v. Valdez, 96 and People v. Gonzales. 97 In these cases, the arresting
authorities were acting on information regarding an offense but there were no overt acts or suspicious
circumstances that would indicate that the accused has committed, is actually committing, or is attempting
to commit the same. Significantly, these cases, except the last two, come under some other exception to
the rule against warrantless searches. Thus, Maspil, Jr. involved a checkpoint search, Balingan was a search
of a moving vehicle, Bagista was both, and Lising and Montilla were consented searches.

Nevertheless, the great majority of cases conforms to the rule in Burgos, which, in turn, more faithfully
adheres to the letter of Section 5(a), Rule 113. Note the phrase "in his presence" therein, connoting
personal knowledge on the part of the arresting officer. The right of the accused to be secure against any
unreasonable searches on and seizure of his own body and any deprivation of his liberty being a most basic
and fundamental one, the statute or rule that allows exception to the requirement of a warrant of arrest is
strictly construed. Its application cannot be extended beyond the cases specifically provided by law. 98 

The cases invoked by the RTC and the OSG are, therefore, gravely misplaced. In Claudio, 99 the accused,
who was seated aboard a bus in front of the arresting officer, put her bag behind the latter, thus arousing
the latter’s suspicion. In Tangliben and Malmstedt, the accused had also acted suspiciously.

As noted earlier, Maspil, Jr., Bagista and Montilla were justified by other exceptions to the rule against
warrantless searches. Montilla, moreover, was not without its critics. There, majority of the Court held: chanrob1es virtual 1aw library

Appellant insists that the mere fact of seeing a person carrying a traveling bag and a carton box should not
elicit the slightest suspicion of the commission of any crime since that is normal. But precisely, it is in the
ordinary nature of things that drugs being illegally transported are necessarily hidden in containers and
concealed from view. Thus, the officers could reasonably assume, and not merely on a hollow suspicion
since the informant was by their side and had so informed them, that the drugs were in appellant’s luggage.
It would obviously have been irresponsible, if now downright absurd under the circumstances, to require the
constable to adopt a "wait and see" attitude at the risk of eventually losing the quarry.

Here, there were sufficient facts antecedent to the search and seizure that, at the point prior to the search
were already constitutive of probable cause, and which by themselves could properly create in the minds of
the officers a well-grounded and reasonable belief that appellant was in the act of violating the law. The
search yielded affirmance both of that probable cause and the actuality that appellant was then actually
committing a crime by illegally transporting prohibited drug. With these attendant facts, it is ineluctable that
appellant was caught in flagrante delicto, hence his arrest and the search of his belongings without the
requisite warrant were both justified. 100 

While concurring with the majority, Mr. Justice Vitug reserved his vote on the discussion on the warrantless
search being incidental to a lawful arrest. Mr. Justice Panganiban, joined by Messrs. Justices Melo and Puno,
filed a Separate Opinion.

Although likewise concurring in the majority’s ruling that appellant consented to the inspection of his
baggage, Justice Panganiban disagreed with the conclusion that the warrantless search was incidental to a
lawful arrest. He argued that jurisprudence required personal knowledge on the part of the officers making
the in flagrante delicto arrest. In Montilla, the appellant "did not exhibit any overt act or strange conduct
that would reasonably arouse in their minds suspicion that he was embarking on some felonious
enterprise."cralaw virtua1aw library
Law and jurisprudence in fact require stricter grounds for valid arrests and searches without warrant than
for the issuance of warrants therefore. In the former, the arresting person must have actually witnessed the
crime being committed or attempted by the person sought to be arrested; or he must have personal
knowledge of facts indicating that the person to be arrested perpetrated the crime that had just occurred. In
the latter case, the judge simply determines personally from testimonies of witnesses that there exists
reasonable grounds to believe that a crime was committed by the accused.

x           x           x

To say that "reliable tips" constitute probable cause for a warrantless arrest or search is in my opinion, a
dangerous precedent and places in great jeopardy the doctrines laid down in many decisions made by this
Court, in its effort to zealously guard and protect the sacred constitutional right against unreasonable
arrests, searches and seizures. Everyone would be practically at the mercy of so-called informants,
reminiscent of the makapilis during the Japanese occupation. Any one whom they point out to a police
officer as a possible violator of the law could then be subject to search and possible arrest. This is placing
limitless power upon informants who will no longer be required to affirm under oath their accusations, for
they can always delay their giving of tips in order to justify warrantless arrests and searches. Even law
enforcers can use this as an oppressive tool to conduct searches without warrants, for they can always claim
that they received raw intelligence information only on the day or afternoon before. This would clearly be a
circumvention of the legal requisites for validly effecting an arrest or conducting a search and seizure.
Indeed the majority’s ruling would open loopholes that would allow unreasonable arrests, searches and
seizures. 101 

Montilla would shortly find mention in Justice Panganiban’s concurring opinion in People v. Doria, supra,
where this Court ruled: chanrob1es virtual 1aw library

Accused-Appellant Gaddao was arrested solely on the basis of the alleged identification made by her co-
accused. PO3 Manlangit, however, declared in his direct examination that appellant Doria named his co-
accused in response to his (PO3 Manlangit’s) query as to where the marked money was. Appellant Doria did
not point to appellant Gaddao as his associate in the drug business, but as the person with whom he left the
marked bills. This identification does not necessarily lead to the conclusion that appellant Gaddao conspired
with her co-accused in pushing drugs. Appellant Doria may have left the money in her house, with or
without any conspiracy. Save for accused-appellant Doria’s word, the Narcom agents had no showing that
the person who affected the warrantless arrest had, in his own right, knowledge of facts implicating the
person arrested to the perpetration of a criminal offense, the arrest is legally objectionable. 102 [Italics in
the original.]

Expressing his accord with Mr. Justice Puno’s ponencia, Justice Panganiban said that Doria "rightfully brings
the Court back to well-settled doctrines on warrantless arrests and searches, which have seemingly been
modified through an obiter in People v. Ruben Montilla." 103 

Montilla, therefore, has been seemingly discredited insofar as it sanctions searches incidental to lawful arrest
under similar circumstances. At any rate, Montilla was a consented search. As will be demonstrated later,
the same could not be said of this case.

That leaves the prosecution with People v. Valdez, which, however, involved an "on-the-spot information."
The urgency of the circumstances, an element not present in this case, prevented the arresting officer
therein from obtaining a warrant. chanrob1es virtua1 1aw 1ibrary

Appellants in this case were neither performing any overt act or acting in a suspicious manner that would
hint that a crime has been, was being, or was about to be, committed. If the arresting officers’ testimonies
are to be believed, appellants were merely helping each other carry a carton box. Although appellant Tudtud
did appear "afraid and perspiring," 104 "pale" 105 and "trembling," 106 this was only after, not before, he
was asked to open the said box.

In no sense can the knowledge of the herein arresting officers that appellant Tudtud was in possession of
marijuana be described as "personal," having learned the same only from their informant Solier. Solier, for
his part, testified that he obtained his information only from his neighbors and the friends of appellant
Tudtud: chanrob1es virtual 1aw library
Q — What was your basis in your report to the police that Tudtud is going to Cotabato and get stocks of
marijuana?

A — Because of the protest of my neighbors who were saying who will be the person whou [sic] would point
to him because he had been giving trouble to the neighborhood because according to them there are [sic]
proliferation of marijuana in our place. That was the complained [sic] of our neighbors.

Q — Insofar as the accused Tudtud is concerned what was your basis in reporting him particularly?

A — His friends were the once who told me about it.

Q — For how long have you know [sic] this fact of alleged activity of Tudtud in proliferation of marijuana?

A — About a month.

x           x           x

Q — Regarding the report that Tudtud went to Cotabato to get stocks of marijuana which led to his
apprehension sometime in the evening of August 1 and according to the report [which] is based on your
report my question is, how did you know that Tudtud will be bringing along with him marijuana stocks on
August 1, 1999?

x           x           x

A — Because of the information of his neighbor. 107 

In other words, Solier’s information itself is hearsay. He did not even elaborate on how his neighbors or
Tudtud’s friends acquired their information that Tudtud was responsible for the proliferation of drugs in their
neighborhood.

Indeed, it appears that PO1 Floreta himself doubted the reliability of their informant. He testified on cross-
examination: chanrob1es virtual 1aw library

Q — You mean to say that Bobot Solier, is not reliable?

A — He is trustworthy.

Q — Why [did] you not consider his information not reliable if he is reliable?

A — (witness did not answer).

ATTY. CAÑETE: chanrob1es virtual 1aw library

Never mind, do not answer anymore. That’s all. 108 

The prosecution, on re-direct examination, did not attempt to extract any explanation from PO1 Floreta for
his telling silence.

Confronted with such a dubious informant, the police perhaps felt it necessary to conduct their own
"surveillance." This "surveillance," it turns out, did not actually consist of staking out appellant Tudtud to
catch him in the act of plying his illegal trade, but of a mere "gather[ing] of information from the assets
there." 109 The police officers who conducted such "surveillance" did not identify who these "assets" were or
the basis of the latter’s information. Clearly, such information is also hearsay, not of personal knowledge.

Neither were the arresting officers impelled by any urgency that would allow them to do away with the
requisite warrant, PO1 Desierto’s assertions of lack of time 110 notwithstanding. Records show that the
police had ample opportunity to apply for a warrant, having received Solier’s information at around 9:00 in
the morning; Tudtud, however, was expected to arrive at around 6:00 in the evening of the same day. 111
In People v. Encinada, supra, the Court ruled that there was sufficient time to procure a warrant where the
police officers received at 4:00 in the afternoon an intelligence report that the accused, who was supposedly
carrying marijuana, would arrive the next morning at 7:00 a.m.: chanrob1es virtual 1aw library

Even if the information was received by Bolonia about 4:00 p.m. of May 20, 1992 at his house, there was
sufficient time to secure a warrant of arrest, as the M/V Sweet Pearl was not expected to dock until 7:00
a.m. the following day. Administrative Circular No. 13 allows application for search warrants even after
office hours:jgc:chanrobles.com.ph

"3. Raffling shall be strictly enforced, except only in case where an application for search warrant may be
filed directly with any judge whose jurisdiction the place to be searched is located, after office hours, or
during Saturdays, Sundays, and legal holidays, in which case the applicant is required to certify under oath
the urgency of the issuance thereof after office hours, or during Saturdays, Sundays and legal
holidays;." . . .

The same procedural dispatch finds validation and reiteration in Circular No. 19, series of 1987, entitled
"Amended Guidelines and Procedures on Application for search warrants for Illegal Possession of Firearms
and Other Serious Crimes Filed in Metro Manila Courts and Other Courts with Multiple Salas" : jgc:chanrobles.com.ph

"This Court has received reports of delay while awaiting raffle, in acting on applications for search warrants
in the campaign against loose firearms and other serious crimes affecting peace and order. There is a need
for prompt action on such applications for search warrant. Accordingly, these amended guidelines in the
issuance of a search warrant are issued: chanrob1es virtual 1aw library

1. All applications for search warrants relating to violation of the Anti-subversion Act, crimes against public
order as defined in the Revised Penal Code, as amended, illegal possession of firearms and/or ammunition
and violations of the Dangerous Drugs Act of 1972, as amended, shall no longer be raffled and shall
immediately be taken cognizance of and acted upon by the Executive Judge of the Regional Trial Court,
Metropolitan Trial Court, and Municipal Trial Court under whose jurisdiction the place to be searched is
located.

2. In the absence of the Executive Judge, the Vice-Executive Judge shall take cognizance of and personally
act on the same. In the absence of the Executive judge or Vice-Executive judge, the application may be
taken cognizance of and acted upon by any judge of the Court where application is filed.

3. Applications filed after office hours, during Saturdays, Sundays and holidays, shall likewise be taken
cognizance of and acted upon by any judge of the Court having jurisdiction of the place to be searched, but
in such cases the applicant shall certify and state the facts under oath, to the satisfaction of the judge, that
its issuance is urgent.

4. Any judge acting on such application shall immediately and without delay personally conduct the
examination of the applicant and his witnesses to prevent the possible leakage of information. He shall
observe the procedures, safeguards, and guidelines for the issuance of search warrants provided for in this
Court’s Administrative Circular No. 13, dated October 1, 1985." 112 [Italics in the original.]

Given that the police had adequate time to obtain the warrant, PO1 Floreta’s testimony that the real reason
for their omission was their belief that they lacked sufficient basis to obtain the same assumes greater
significance. This was PO1 Floreta’s familiar refrain: chanrob1es virtual 1aw library

Q — When Solier reported to you that fact, that Tudtud will be coming from Cotabato to get that (sic)
stocks, you did not go to court to get a search warrant on the basis of the report of Bobot Solier?

A — No.

Q — Why?

A — Because we have no real basis to secure the search warrant.

Q — When you have no real basis to secure a search warrant, you have also no real basis to search Tudtud
and Bulong at that time?

A — Yes, sir.

x           x           x
Q — And Bobot Solier told you that Tudtud, that he would already bring marijuana?

A — Yes, Sir.

Q — And this was 9:00 a.m.?

A — Yes, Sir.

Q — The arrival of Tudtud was expected at 6:00 p.m.?

A — Yes, Sir.

Q — Toril is just 16 kilometers from Davao City?

A — Yes, Sir.

Q — And the Office of the Regional Trial Court is only about 16 kilometers, is that correct?

A — Yes, Sir.

Q — And it can be negotiated by thirty minutes by a jeep ride?

A — Yes, Sir.

Q — And you can asked [sic] the assistance of any prosecutor to apply for the search warrant or the
prosecutor do [sic] not assist?

A — They help.

Q — But you did not come to Davao City, to asked [sic] for a search warrant?

A — As I said, we do not have sufficient basis. 113 

It may be conceded that "the mere subjective conclusions of a police officer concerning the existence of
probable cause is not binding on [the courts] which must independently scrutinize the objective facts to
determine the existence of probable cause" and that "a court may also find probable cause in spite of an
officer’s judgment that none exists." 114 However, the fact that the arresting officers felt that they did not
have sufficient basis to obtain a warrant, despite their own information-gathering efforts, raises serious
questions whether such "surveillance" actually yielded any pertinent information and even whether they
actually conducted any information-gathering at all, thereby eroding any claim to personal knowledge. chanrob1es virtua1 1aw 1ibrary

Finally, there is an effective waiver of rights against unreasonable searches and seizures if the following
requisites are present:chanrob1es virtual 1aw library

1. It must appear that the rights exist;

2. The person involved had knowledge, actual or constructive, of the existence of such right;

3. Said person had an actual intention to relinquish the right. 115 

Here, the prosecution failed to establish the second and third requisites. Records disclose that when the
police officers introduced themselves as such and requested appellant that they see the contents of the
carton box supposedly containing the marijuana, appellant Tudtud said "it was alright." He did not resist and
opened the box himself.

The fundamental law and jurisprudence require more than the presence of these circumstances to constitute
a valid waiver of the constitutional right against unreasonable searches and seizures. Courts indulge every
reasonable presumption against waiver of fundamental constitutional rights; acquiescence in the loss of
fundamental rights is not to be presumed. 116 The fact that a person failed to object to a search does not
amount to permission thereto.
. . . . As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do
not place the citizen in the position of either contesting an officer’s authority by force, or waiving his
constitutional rights; but instead they hold that a peaceful submission to all search or seizure is not a
consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. 117
[Emphasis supplied.]

Thus, even in cases where the accused voluntarily handed her bag 118 or the chairs 119 containing
marijuana to the arresting officer, this Court held there was no valid consent to the search.

On the other hand, because a warrantless search is in derogation of a constitutional right, peace officers
who conduct it cannot invoke regularity in the performance of official functions and shift to the accused the
burden of proving that the search was unconsented. 120 

In any case, any presumption in favor of regularity would be severely diminished by the allegation of
appellants in this case that the arresting officers pointed a gun at them before asking them to open the
subject box. Appellant Tudtud testified as follows: chanrob1es virtual 1aw library

Q — This person who approached you according to you pointed something at you[.] [What] was that
something?

A — A 38 cal. Revolver.

Q — How did he point it at you?

A — Like this (Witness demonstrating as if pointing with his two arms holding something towards
somebody).

Q — This man[,] what did he tell you when he pointed a gun at you?

A — He said do not run.

Q — What did you do?

A — I raised my hands and said "Sir, what is this about?" 

Q — Why did you call him Sir?

A — I was afraid because when somebody is holding a gun, I am afraid.

Q — Precisely, why did you address him as Sir?

A — Because he was holding a gun and I believed that somebody who is carrying a gun is a policeman.

Q — When you asked him what is this? What did he say?

A — He said "I would like to inspect what you are carrying. [" ]

x           x           x

Q — What did you say when you were asked to open that carton box?

A — I told him that is not mine.

Q — What did this man say?

A — He again pointed to me his revolver and again said to open.

Q — What did you do?

A — So I proceeded to open for fear of being shot. 121 

As the search of appellants’ box does not come under the recognized exceptions to a valid warrantless
search, the marijuana leaves obtained thereby are inadmissible in evidence. And as there is no evidence
other than the hearsay testimony of the arresting officers and their informant, the conviction of appellants
cannot be sustained.

The Bill of Rights is the bedrock of constitutional government. If people are stripped naked of their rights as
human beings, democracy cannot survive and government becomes meaningless. This explains why the Bill
of Rights, contained as it is in Article III of the Constitution, occupies a position of primacy in the
fundamental law way above the articles on governmental power. 124 

The right against unreasonable search and seizure in turn is at the top of the hierarchy of rights, 125 next
only to, if not on the same plane as, the right to life, liberty and property, which is protected by the due
process clause. 126 This is as it should be for, as stressed by a couple of noted freedom advocates, 127 the
right to personal security which, along with the right to privacy, is the foundation of the right against
unreasonable search and seizure "includes the right to exist, and the right to enjoyment of life while
existing." Emphasizing such right, this Court declared in People v. Aruta: chanrob1es virtual 1aw library

Unreasonable searches and seizures are the menace against which the constitutional guarantees afford full
protection. While the power to search and seize may at times be necessary to the public welfare, still it may
be exercised and the law enforced without transgressing the constitutional rights of the citizens, for the
enforcement of no statute is of sufficient importance to justify indifference to the basic principles of
government.

Those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the
name of order. Order is too high a price to pay for the loss of liberty. As Justice Holmes declared: "I think it
is less evil that some criminals escape than that the government should play an ignoble part." It is simply
not allowed in free society to violate a law to enforce another, especially if the law violated is the
Constitution itself. 128 

Thus, given a choice between letting suspected criminals escape or letting the government play an ignoble
part, the answer, to this Court, is clear and ineluctable.

WHEREFORE, the Decision of the Regional Trial Court of Davao City is REVERSED. Appellants Noel Tudtud y
Paypa and Dindo Bolong y Naret are hereby ACQUITTED for insufficiency of evidence. The Director of the
Bureau of Prisons is ordered to cause the immediate release of appellants from confinement, unless they are
being held for some other lawful cause, and to report to this Court compliance herewith within five (5) days
from receipt hereof.chanrob1es virtua1 1aw 1ibrary