THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROSA ARUTA Y MENGUIN, ACCUSED-APPELLANT.

With the pervasive proliferation of illegal drugs and its pernicious
effects on our society, our law enforcers tend at times to overreach themselves
in apprehending drug offenders to the extent of failing to observe
well-entrenched constitutional guarantees against illegal searches and arrests. Consequently, drug offenders manage to evade the clutches of the law
on mere technicalities.

Accused-appellant Rosa Aruta y Menguin was arrested and charged
with violating Section 4, Article II of Republic Act No. 6425 or the Dangerous
Drugs Act. The information reads:

“That on or about the fourteenth (14th) day of December, 1988, in
the City of Olongapo, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, without being lawfully authorized,
did then and there wilfully, unlawfully and knowingly engage in transporting
approximately eight (8) kilos and five hundred (500) grams of dried marijuana
packed in plastic bag marked ‘Cash Katutak’ placed in a travelling bag, which
are prohibited drugs.”

Upon arraignment, she pleaded “not guilty.” After trial on the merits, the Regional
Trial Court of Olongapo City convicted and sentenced her to suffer the penalty
of life imprisonment and to pay a fine of twenty thousand (P20,000.00)
pesos.^[1]

The prosecution substantially relied on the testimonies of P/Lt.
Ernesto Abello, Officer-in-Charge of the Narcotics Command (NARCOM) of Olongapo
City and P/Lt. Jose Domingo. Based on
their testimonies, the court a quo found the following:

On December 13, 1988, P/Lt. Abello was tipped off by his informant,
known only as Benjie, that a certain “Aling Rosa” would be arriving from Baguio
City the following day, December 14, 1988, with a large volume of
marijuana. Acting on said tip, P/Lt.
Abello assembled a team composed of P/Lt. Jose Domingo, Sgt. Angel Sudiacal,
Sgt. Oscar Imperial, Sgt. Danilo Santiago and Sgt. Efren Quirubin.

Said team proceeded to West Bajac-Bajac, Olongapo City at around
4:00 in the afternoon of December 14, 1988 and deployed themselves near the
Philippine National Bank (PNB) building
along Rizal Avenue and the Caltex gasoline station. Dividing themselves into two groups, one group, made up of P/Lt.
Abello, P/Lt. Domingo and the informant posted themselves near the PNB building
while the other group waited near the Caltex gasoline station.

While thus positioned, a Victory Liner Bus with body number 474 and
the letters BGO printed on its front and back bumpers stopped in front of the
PNB building at around 6:30 in the evening of the same day from where two
females and a male got off. It was at
this stage that the informant pointed out to the team “Aling Rosa” who was then
carrying a travelling bag.

Having ascertained that accused-appellant was “Aling Rosa,” the
team approached her and introduced themselves as NARCOM agents. When P/Lt. Abello asked “Aling Rosa” about
the contents of her bag, the latter handed it to the former.

Upon inspection, the bag was found to contain dried marijuana
leaves packed in a plastic bag marked “Cash Katutak.” The team confiscated the bag together with the Victory Liner bus
ticket to which Lt. Domingo affixed his signature. Accused-appellant was then brought to the NARCOM office for
investigation where a Receipt of
Property Seized was prepared for the confiscated marijuana leaves.

Upon examination of the seized marijuana specimen at the PC/INP
Crime Laboratory, Camp Olivas, Pampanga, P/Maj. Marlene Salangad, a Forensic
Chemist, prepared a Technical Report stating that said specimen yielded
positive results for marijuana, a prohibited drug.

After the presentation of the testimonies of the arresting officers
and of the above technical report, the prosecution rested its case.

Instead of presenting its evidence, the defense filed a “Demurrer
to Evidence” alleging the illegality of the search and seizure of the items
thereby violating accused-appellant’s constitutional right against unreasonable
search and seizure as well as their inadmissibility in evidence.

The said “Demurrer to Evidence” was, however, denied without the
trial court ruling on the alleged illegality of the search and seizure and the
inadmissibility in evidence of the items seized to avoid pre-judgment. Instead, the trial court continued to hear
the case.

In view of said denial, accused-appellant testified on her
behalf. As expected, her version of the
incident differed from that of the prosecution. She claimed that immediately prior to her arrest, she had
just come from Choice Theater where she watched the movie “Balweg.” While about to cross the road, an old woman
asked her help in carrying a shoulder bag. In the middle of the road, Lt. Abello and Lt. Domingo arrested her and
asked her to go with them to the NARCOM
Office.

During investigation at said office, she disclaimed any knowledge
as to the identity of the woman and averred that the old woman was nowhere to
be found after she was arrested. Moreover, she added that no search warrant was shown to her by the
arresting officers.

After the prosecution made a formal offer of evidence, the
defense filed a “Comment and/or Objection to Prosecution’s Formal Offer of
Evidence” contesting the admissibility of the items seized as they were
allegedly a product of an unreasonable search and seizure.

Not convinced with her version of the incident, the Regional
Trial Court of Olongapo City convicted accused-appellant of transporting eight
(8) kilos and five hundred (500) grams of marijuana from Baguio City to
Olongapo City in violation of Section 4, Article 11 of R.A. No. 6425, as
amended, otherwise known as the Dangerous Drugs Act of 1972 and sentenced her
to life imprisonment and to pay a fine of twenty thousand (P20,000.00)
pesos without subsidiary imprisonment in case of insolvency.^[2]

In this appeal, accused-appellant submits the following:

1.     The trial court erred
in holding that the NARCOM agents could not apply for a warrant for the search
of a bus or a passenger who boarded a bus because one of the requirements for
applying a search warrant is that the place to be searched must be specifically
designated and described.

2.     The trial court erred
in holding or assuming that if a search warrant was applied for by the NARCOM
agents, still no court would issue a search warrant for the reason that the
same would be considered a general search warrant which may be quashed.

3.     The trial court erred
in not finding that the warrantless search resulting to the arrest of
accused-appellant violated the latter’s constitutional rights.

4.     The trial court erred
in not holding that although the defense of denial is weak yet the evidence of
the prosecution is even weaker.

These submissions are impressed with merit.

In People v. Ramos,^[3] this Court held that a search may be
conducted by law enforcers only on the strength of a search warrant validly issued
by a judge as provided in Article III, Section 2 of the Constitution which
provides:

“Section 2. The right of
the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall
be inviolable, and no search 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 place to be searched and the persons or things
to be seized.”

This constitutional guarantee is not a blanket prohibition
against all searches and seizures as it operates only against “unreasonable”
searches and seizures. The plain import
of the language of the Constitution, which in one sentence prohibits
unreasonable searches and seizures and at the same time prescribes the
requisites for a valid warrant, is that searches and seizures are normally
unreasonable unless authorized by a validly issued search warrant or warrant of
arrest. Thus, the fundamental
protection accorded by the search and seizure clause is that between person and
police must stand the protective authority of a magistrate clothed with power
to issue or refuse to issue search warrants or warrants of arrest.^[4]

Further, articles which are the product of unreasonable searches
and seizures are inadmissible as evidence pursuant to the doctrine pronounced
in Stonehill v. Diokno.^[5]
This exclusionary rule was later enshrined in Article III, Section 3(2) of the
Constitution, thus:

“Section 3(2). Any evidence
obtained in violation of this or the preceding section shall be inadmissible in
evidence for any purpose in any proceeding.”

From the foregoing, it can be said that the State cannot simply
intrude indiscriminately into the houses, papers, effects, and most
importantly, on the person of an individual. The constitutional provision guaranteed an impenetrable shield against
unreasonable searches and seizures. As
such, it protects the privacy and sanctity of the person himself against
unlawful arrests and other forms of restraint.^[6]

Therewithal, the right of a person to be secured against any
unreasonable seizure of his body and any deprivation of his liberty is a most basic
and fundamental one. A statute, rule or
situation which allows exceptions to the requirement of a warrant of arrest or
search warrant must perforce be strictly construed and their application
limited only to cases specifically provided or allowed by law. To do otherwise is an infringement upon
personal liberty and would set back a right so basic and deserving of full
protection and vindication yet often violated.^[7]

The following cases are specifically provided or allowed by law:

1.     Warrantless
search incidental to a lawful arrest recognized under Section 12, Rule 126
of the Rules of Court^[8] and by prevailing jurisprudence;

2.     Seizure of evidence in
“plain view,” the elements of which 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 had the right to be where they are;

(c) the evidence must be
immediately apparent, and

(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;^[9]

6.     Stop
and Frisk;^[10] and

7.     Exigent
and Emergency Circumstances.^[11]

The above exceptions, however, should not become unbridled
licenses for law enforcement officers to trample upon the constitutionally
guaranteed and more fundamental right of persons against unreasonable search
and seizures. The essential requisite
of probable cause must still be satisfied before a warrantless search and seizure can be lawfully conducted.

Although probable cause eludes exact and concrete
definition, it generally signifies 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. It likewise refers to the existence of such facts and
circumstances which could lead a reasonably discreet and prudent man to believe
that an offense has been committed and that the item(s), article(s) or
object(s) sought in connection with said offense or subject to seizure and
destruction by law is in the place to be searched.^[12]

It ought to be emphasized that in determining probable cause, the
average man weighs facts and circumstances without resorting to the
calibrations of our rules of evidence
of which his knowledge is technically nil. Rather, he relies on the calculus of common sense which all reasonable
men have in abundance. The same quantum of evidence is required in determining
probable cause relative to search. Before a search warrant can be issued, it
must be shown by substantial evidence that the items sought are in fact
seizable by virtue of being connected with criminal activity, and that the
items will be found in the place to be searched.^[13]

In searches and seizures effected without a warrant, it is
necessary for probable cause to be present. Absent any probable cause, the article(s) seized could not be admitted
and used as evidence against the person arrested. Probable cause, in these cases, must only be based on reasonable
ground of suspicion or belief that a crime has been committed or is about to be
committed.

In our jurisprudence, there are instances where information has
become a sufficient probable cause to effect a warrantless search and seizure.

In People v. Tangliben,^[14]
acting on information supplied by informers, police officers conducted a surveillance at the
Victory Liner Terminal compound in San Fernando, Pampanga against persons who
may commit misdemeanors and also on those who may be engaging in the traffic of
dangerous drugs. At 9:30 in the
evening, the policemen noticed a person carrying a red travelling bag who was acting suspiciously. They confronted him and requested him to open his bag but he
refused. He acceded later on when the
policemen identified themselves. Inside
the bag were marijuana leaves wrapped in a plastic wrapper. The police officers only knew of the
activities of Tangliben on the night of his arrest.

In instant case, the apprehending officers already had prior
knowledge from their informant regarding Aruta’s alleged activities. In Tangliben policemen were
confronted with an on-the-spot tip. Moreover, the policemen knew that the Victory Liner compound is being
used by drug traffickers as their “business address”. More significantly, Tangliben was acting suspiciously. His actuations and surrounding circumstances
led the policemen to reasonably suspect that Tangliben is committing a
crime. In instant case, there is no
single indication that Aruta was acting suspiciously.

In People v. Malmstedt,^[15]
the Narcom agents received reports that vehicles
coming from Sagada were transporting marijuana. They likewise received information that a Caucasian coming from
Sagada had prohibited drugs on his person. There was no reasonable time to obtain a search warrant, especially
since the identity of the suspect could not be readily ascertained. His actuations also aroused the suspicion
of the officers conducting the operation. The Court held that in light of such circumstances, to deprive the
agents of the ability and facility to act promptly, including a search without
a warrant, would be to sanction impotence and ineffectiveness in law
enforcement, to the detriment of society.

Note, however, the glaring differences of Malmstedt to the
instant case. In present case, the
police officers had reasonable time within which to secure a search
warrant. Second, Aruta’s identity was
priorly ascertained. Third, Aruta was
not acting suspiciously. Fourth,
Malmstedt was searched aboard a moving vehicle, a legally accepted exception to
the warrant requirement. Aruta, on the
other hand, was searched while about to cross a street.

In People v. Bagista,^[16]
the NARCOM officers had probable cause to stop and search all vehicles coming
from the north to Acop, Tublay, Benguet in view of the confidential information
they received from their regular informant that a woman having the same
appearance as that of accused-appellant would be bringing marijuana from up
north. They likewise had probable cause
to search accused-appellant’s belongings since she fitted the description given
by the NARCOM informant. Since there
was a valid warrantless search by the NARCOM agents, any evidence obtained in
the course of said search is admissible against accused-appellant. Again, this case differs from Aruta as this
involves a search of a moving vehicle plus the fact that the police officers
erected a checkpoint. Both are
exceptions to the requirements of a search warrant.

In Manalili v. Court of Appeals and People,^[17]
the policemen conducted a surveillance
in an area of the Kalookan Cemetery based on information that drug addicts were
roaming therein. Upon reaching the place,
they chanced upon a man in front of the cemetery who appeared to be “high” on
drugs. He was observed to have reddish
eyes and to be walking in a swaying manner. Moreover, he appeared to be trying to avoid the policemen. When approached and asked what he was
holding in his hands, he tried to resist. When he showed his wallet, it contained marijuana. The Court held that the policemen had
sufficient reason to accost accused-appellant to determine if he was actually
“high” on drugs due to his suspicious actuations, coupled with the fact that
based on information, this area was a haven for drug addicts.

In all the abovecited cases, there was information received which
became the bases for conducting the warrantless search. Furthermore, additional factors and
circumstances were present which, when taken together with the information,
constituted probable causes which justified the warrantless searches and
seizures in each of the cases.

In the instant case, the determination of the absence or existence
of probable cause necessitates a reexamination of the facts. The following have been established: (1) In the morning of December 13, 1988, the law enforcement officers
received information from an informant named “Benjie” that a certain “Aling
Rosa” would be leaving for Baguio City on December 14, 1988 and would be back
in the afternoon of the same day carrying with her a large volume of marijuana;
(2) At 6:30 in the evening of December
14, 1988, accused-appellant alighted from a Victory Liner Bus carrying a
travelling bag even as the informant pointed her out to the
law enforcement officers; (3) The law
enforcement officers approached her and introduced themselves as NARCOM agents;
(4) When asked by Lt. Abello about the
contents of her travelling bag, she gave the same to him; (5) When they opened the same, they found dried
marijuana leaves; (6) Accused-appellant was then brought to the NARCOM office
for investigation.

This case is similar to People
v. Aminnudin where the police received information two days before the
arrival of Aminnudin that the latter would be arriving from Iloilo on board the
M/V Wilcon 9. His name was known, the
vehicle was identified and the date of arrival was certain. From the information they had received, the
police could have persuaded a judge that there was probable cause, indeed, to
justify the issuance of a warrant. Instead of securing a warrant first, they proceeded to apprehend Aminnudin. When the case was brought before this Court, the arrest was held to be
illegal; hence any item seized from Aminnudin could not be used against
him.

Another recent case is People v. Encinada where the police
likewise received confidential information the day before at 4:00 in the
afternoon from their informant that Encinada would be bringing in marijuana
from Cebu City on board M/V Sweet Pearl at 7:00 in the morning of the following
day. This intelligence information
regarding the culprit’s identity, the particular crime he allegedly committed
and his exact whereabouts could have been a basis of probable cause for the
lawmen to secure a warrant. This Court
held that in accordance with Administrative Circular No. 13 and Circular No.
19, series of 1987, the lawmen could have applied for a warrant even after
court hours. The failure or neglect to
secure one cannot serve as an excuse for violating Encinada’s constitutional
right.

In the instant case, the NARCOM agents were admittedly not armed
with a warrant of arrest. To legitimize
the warrantless search and seizure of accused-appellant’s bag,
accused-appellant must have been validly arrested under Section 5 of Rule 113
which provides inter alia:

“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;

       xxx        xxx        xxx.”

Accused-appellant Aruta cannot be said to be committing a
crime. Neither was she about to commit
one nor had she just committed a crime. Accused-appellant was merely crossing the street and was not acting in
any manner that would engender a reasonable ground for the NARCOM agents to
suspect and conclude that she was committing a crime. It was only when the informant pointed to accused-appellant and
identified her to the agents as the carrier of the marijuana that she was singled out as the suspect. The
NARCOM agents would not have apprehended accused-appellant were it not for the
furtive finger of the informant because, as clearly illustrated by the evidence
on record, there was no reason
whatsoever for them to suspect that accused-appellant was committing a crime,
except for the pointing finger of the informant. This the Court could neither
sanction nor tolerate as it is a clear violation of the constitutional
guarantee against unreasonable search and seizure. Neither was there any semblance of any compliance with the rigid
requirements of probable cause and warrantless arrests.

Consequently, there was no legal basis for the NARCOM agents to
effect a warrantless search of accused-appellant’s bag, there being no probable
cause and the accused-appellant not having been lawfully arrested. Stated otherwise, the arrest being
incipiently illegal, it logically follows that the subsequent search was
similarly illegal, it being not incidental to a lawful arrest. The constitutional guarantee against
unreasonable search and seizure must perforce operate in favor of accused-appellant. As such, the articles seized could not be
used as evidence against accused-appellant for these are “fruits of a poisoned
tree” and, therefore, must be rejected, pursuant to Article III, Sec. 3(2) of
the Constitution.

Emphasis is to be laid on the fact that the law requires that the
search be incidental to a lawful arrest, in order that the search itself may
likewise be considered legal. Therefore, it is beyond cavil that a lawful arrest must precede the
search of a person and his belongings. Where a search is first undertaken, and an arrest effected based on
evidence produced by the search, both such search and arrest would be unlawful,
for being contrary to law.^[18]

As previously discussed, the case in point is People v.
Aminnudin^[19]
where, this Court observed that:

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

In the absence of probable cause to effect a valid and legal
warrantless arrest, the search and seizure of accused-appellant’s bag would
also not be justified as seizure of evidence in “plain view” under the
second exception. The marijuana was
obviously not immediately apparent as shown by the fact that the NARCOM agents
still had to request accused-appellant to open the bag to ascertain its
contents.

Neither would the search and seizure of accused-appellant’s bag
be justified as a search of a moving vehicle. There was no moving vehicle to speak of in the instant case as
accused-appellant was apprehended several minutes after alighting from the
Victory Liner bus. In fact, she was
accosted in the middle of the street and not while inside the vehicle.

People v. Solayao,^[20]
applied the stop and frisk principle which has been adopted in Posadas v. Court of Appeals.^[21]
In said case, Solayao attempted to flee when he and his companions were
accosted by government agents. In the
instant case, there was no observable manifestation that could have aroused the
suspicion of the NARCOM agents as to cause them to “stop and frisk”
accused-appellant. To reiterate,
accused-appellant was merely crossing the street when apprehended. Unlike in the abovementioned cases,
accused-appellant never attempted to flee from the NARCOM agents when the
latter identified themselves as such. Clearly, this is another indication of the paucity of probable cause
that would sufficiently provoke a suspicion that accused-appellant was
committing a crime.

The warrantless search and seizure could not likewise be
categorized under exigent and emergency circumstances, as applied in People
v. De Gracia.^[22]
In said case, there were intelligence reports that the building was being used
as headquarters by the RAM during a coup d’etat. A surveillance team was fired at by a group
of armed men coming out of the building and the occupants of said building
refused to open the door despite repeated requests. There were large quantities of explosives and ammunitions inside
the building. Nearby courts were closed
and general chaos and disorder prevailed. The existing circumstances sufficiently showed that a crime was being
committed. In short, there was probable
cause to effect a warrantless search of the building. The same could not be
said in the instant case.

The only other exception that could possibly legitimize the
warrantless search and seizure would be consent given by the accused-appellant
to the warrantless search as to amount to a waiver of her constitutional
right. The Solicitor General argues
that accused-appellant voluntarily submitted herself to search and inspection
citing People v. Malasugui^[23]
where this Court ruled:

“When one voluntarily submits to a search or consents to have it
made on his person or premises, he is precluded from complaining later thereof.
(Cooley, Constitutional Limitations, 8th ed., [V]ol. I, p. 631.) The right to be secure from unreasonable
search may, like every right, be waived and such waiver may be made either
expressly or impliedly.”

In support of said argument, the Solicitor General cited the
testimony of Lt. Abello, thus:

“Q          When this
informant by the name of alias Benjie pointed to Aling Rosa, what happened
after that?

A          We followed her and
introduced ourselves as NARCOM agents and confronted her with our informant and
asked her what she was carrying and if we can see the bag she was carrying.

Q          What was her
reaction?

A          She gave her bag to
me.

Q          So what happened
after she gave the bag to you?

A     I
opened it and found out plastic bags of marijuana inside.”^[24]

This Court cannot agree with the Solicitor General’s contention
for the Malasugui case is inapplicable to the instant case. In said case, there was probable cause for
the warrantless arrest thereby making the warrantless search effected immediately
thereafter equally lawful.^[25]
On the contrary, the most essential element of probable cause, as expounded
above in detail, is wanting in the instant case making the warrantless arrest
unjustified and illegal. Accordingly,
the search which accompanied the warrantless arrest was likewise unjustified
and illegal. Thus, all the articles
seized from the accused-appellant could not be used as evidence against
her.

Aside from the inapplicability of the abovecited case, the act of
herein accused-appellant in handing over her bag to the NARCOM agents could not
be construed as voluntary submission or an implied acquiescence to the unreasonable search. The instant case is similar to People v.
Encinada,^[26]
where this Court held:

“[T]he Republic’s counsel avers that appellant voluntarily handed
the chairs containing the package of marijuana to the arresting officer and
thus effectively waived his right against the warrantless search. This he gleaned from Bolonia’s testimony.

Q:          After Roel
Encinada alighted from the motor tricycle, what happened next?

A:    I requested to him to
see his chairs that he carried.

Q:          Are you referring
to the two plastic chairs?

A:          Yes, sir.

Q:          By the way, when
Roel Encinada agreed to allow you to examine the two chairs that he carried,
what did you do next?

A:    I examined the chairs
and I noticed that something inside in between the two chairs.”

We are not convinced. While
in principle we agree that consent will validate an otherwise illegal search,
we believe that appellant — based on the transcript quoted above — did not
voluntarily consent to Bolonia’s search of his belongings. Appellant’s silence should not be lightly
taken as consent to such search. The
implied acquiscence to the search, if there was any, could not have been more
than mere passive conformity given under intimidating or coercive circumstances
and is thus considered no consent at all within the purview of the
constitutional guarantee. Furthermore, considering that the search was conducted irregularly,
i.e., without a warrant, we cannot appreciate consent based merely on the
presumption of regularity of the performance of duty.”(Emphasis supplied)

Thus, accused-appellant’s lack of objection to the search is not
tantamount to a waiver of her constitutional rights or a voluntary submission
to the warrantless search. As this
Court held in People v. Barros:^[27]

“x x x [T]he accused is not to be presumed to have waived the
unlawful search conducted on the occasion of his warrantless arrest “simply because
he failed to object”-

“x x x. To constitute a
waiver, it must appear first that the right exists; secondly, that the person
involved had knowledge, actual or constructive, of the existence of such right;
and lastly, that said person had an actual intention to relinquish the right
(Pasion Vda. de Garcia v. Locsin, 65 Phil. 698). The fact that the accused failed to object to the entry into his
house does not amount to a permission to make a search therein (Magoncia v.
Palacio, 80 Phil. 770). As pointed out
by Justice Laurel in the case of Pasion Vda. de Garcia v. Locsin (supra):

‘xxx xxx xxx

x x x 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 a
search or seizure is not a consent or an invitation thereto, but is merely a
demonstration of regard for the supremacy of the law.’ (Citation omitted).

We apply the rule that: ‘courts
indulge every reasonable presumption against waiver of fundamental
constitutional rights and that we do not presume acquiescence in the loss of
fundamental rights.’”^[28] (Emphasis supplied)

To repeat, to constitute a waiver, there should be an actual
intention to relinquish the right. As
clearly illustrated in People v. Omaweng,^[29]
where prosecution witness Joseph Layong testified thus:

“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?

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
contained in 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.”(Emphasis supplied)

In the above-mentioned case, accused was not subjected to any
search which may be stigmatized as a violation of his Constitutional right
against unreasonable searches and seizures. If one had been made, this Court would be the first to condemn it “as
the protection of the citizen and the maintenance of his constitutional rights
is one of the highest duties and privileges of the Court.” He willingly gave prior consent to the
search and voluntarily agreed to have it conducted on his vehicle and traveling
bag, which is not the case with Aruta.

In an attempt to further justify the warrantless search, the
Solicitor General next argues that the police officers would have encountered
difficulty in securing a search warrant as it could be secured only if accused-appellant’s name was known, the
vehicle identified and the date of its
arrival certain, as in the Aminnudin case where the arresting officers
had forty-eight hours within which to act.

This argument is untenable.

Article IV, Section 3 of the Constitution provides:

“x x x [N]o search warrant or warrant of arrest shall issue except
upon probable cause to be determined by the judge, or such other responsible
officer as may be authorized by law, after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.” (Italics
supplied)

Search warrants to be valid must particularly describe the place
to be searched and the persons or things to be seized. The purpose of this rule is to limit the
things to be seized to those and only those, particularly described in the
warrant so as to leave the officers of the law with no discretion regarding
what articles they shall seize to the end that unreasonable searches and
seizures may not be made.^[30]

Had the NARCOM agents only applied for a search warrant, they
could have secured one without too much difficulty, contrary to the assertions
of the Solicitor General. The person
intended to be searched has been particularized and the thing to be seized specified. The time was also sufficiently ascertained
to be in the afternoon of December 14, 1988. “Aling Rosa” turned out to be accused-appellant and the thing to be
seized was marijuana. The vehicle was identified to be a Victory Liner bus. In fact, the NARCOM agents purposely
positioned themselves near the spot where Victory Liner buses normally unload
their passengers. Assuming that the
NARCOM agents failed to particularize the vehicle, this would not in any way
hinder them from securing a search warrant. The above particulars would have already sufficed. In any case,
this Court has held that the police should particularly describe the place to
be searched and the person or things to be seized, wherever and whenever it
is feasible.^[31]
(Emphasis supplied)

While it may be argued that by entering a plea during arraignment
and by actively participating in the trial, accused-appellant may be deemed to
have waived objections to the illegality of the warrantless search and to the
inadmissibility of the evidence obtained thereby, the same may not apply in the
instant case for the following reasons:

1.     The
waiver would only apply to objections pertaining to the illegality of the
arrest as her plea of “not guilty” and
participation in the trial are indications of her voluntary submission to the
court’s jurisdiction.^[32] The plea and active participation in the trial would
not cure the illegality of the search and transform the inadmissible evidence
into objects of proof. The waiver
simply does not extend this far.

2.     Granting that evidence
obtained through a warrantless search becomes admissible upon failure to object
thereto during the trial of the case, records show that accused-appellant filed
a Demurrer to Evidence and objected and opposed the prosecution’s Formal Offer
of Evidence.

It is apropos to quote the case
of People v. Barros,^[33]
which stated:

“It might be supposed that the non-admissibility of evidence
secured through an invalid warrantless arrest or a warrantless search and
seizure may be waived by an accused person. The a priori argument is that the invalidity of an unjustified
warrantless arrest, or an arrest effected with a defective warrant of arrest
may be waived by applying for and posting of bail for provisional liberty, so
as to estop an accused from questioning the legality or constitutionality of
his detention or the failure to accord him a preliminary investigation. We do not believe, however, that waiver of
the latter necessarily constitutes, or carries with it, waiver of the former–an
argument that the Solicitor General appears to be making impliedly. Waiver of the non-admissibility of the
“fruits” of an invalid warrantless arrest and of a warrantless search and
seizure is not casually to be presumed, if the constitutional right against
unlawful searches and seizures is to retain its vitality for the protection of
our people. In the case at bar,
defense counsel had expressly objected on constitutional grounds to the
admission of the carton box and the four (4) kilos of marijuana when these were
formally offered in evidence by the prosecution. We consider that appellant’s objection to the admission of
such evidence was made clearly and seasonably and that, under the
circumstances, no intent to waive his rights under the premises can be
reasonably inferred from his conduct before or during the trial.”(Emphasis
supplied)

In fine, there was really no excuse for the NARCOM agents not to
procure a search warrant considering that they had more than twenty-four hours
to do so. Obviously, this is again an instance of seizure of the “fruit of the
poisonous tree,” hence illegal and inadmissible subsequently in evidence.

The exclusion of such evidence is the only practical means of
enforcing the constitutional injunction against unreasonable searches and
seizure. The non-exclusionary rule is
contrary to the letter and spirit of the prohibition against unreasonable
searches and seizures.^[34]

While conceding that the officer making the unlawful search and
seizure may be held criminally and civilly liable, the Stonehill case
observed that most jurisdictions have realized that the exclusionary rule is
“the only practical means of enforcing the constitutional injunction” against
abuse. This approach is based on the
justification made by Judge Learned Hand that “only in case the prosecution which
itself controls the seizing officials, knows that it cannot profit by their
wrong, will the wrong be repressed.”^[35]

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.^[36]

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.^[37]

WHEREFORE, in view of the foregoing, the decision of the
Regional Trial Court, Branch 73, Olongapo City, is hereby REVERSED and SET
ASIDE. For lack of evidence to
establish her guilt beyond reasonable doubt, accused-appellant ROSA ARUTA Y MENGUIN
is hereby ACQUITTED and ordered
RELEASED from confinement unless she is being held for some other legal
grounds. No costs.

SO ORDERED.

Narvasa, C.J., (Chairman), Kapunan, and Purisima, JJ., concur.

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