RODOLFO ABENES Y GACUTAN, PETITIONER, VS. THE HON. COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES, RESPONDENTS.

Abenes versus Court of Appeals and People of the Philippines

The Case

This is the case of Rodolfo Abenes, a barangay chairman, against the Court of Appeals and the People of the Philippines. He was convicted by the trial court of two offenses arising from a single incident at a police checkpoint: illegal possession of a high powered firearm and ammunition under Presidential Decree Number 1866, and carrying a firearm outside his residence during the election period in violation of the Omnibus Election Code. The case matters because the Supreme Court draws a sharp and examinable distinction between the two charges. On the illegal possession charge, the prosecution bears the burden of proving the absence of a license, and it failed. On the election offense, the burden shifts to the accused to show a written authority from the Commission on Elections, and he failed. It is also a leading statement on the validity of election period checkpoints and on the plain view doctrine.

Procedural History

Two Informations were filed against Abenes before the Regional Trial Court of Pagadian City, Branch 19. One charged illegal possession of a high powered firearm and ammunition under Presidential Decree Number 1866, as amended. The other charged an election offense under the Omnibus Election Code in relation to the Commission on Elections gun ban. Abenes pleaded not guilty and trial ensued. After the prosecution rested, he filed a demurrer to evidence with a motion to dismiss, which the trial court denied. The trial court then rendered a joint decision convicting him on both charges.

Abenes appealed to the Court of Appeals. The Court of Appeals affirmed the joint decision, modifying only the penalty on the illegal possession charge. Abenes then came to the Supreme Court on a petition for review. The Supreme Court reversed the conviction for illegal possession but affirmed the conviction for the election offense.

Facts

Three days before the May 11, 1998 national and local elections, the Philippine National Police of Pagadian City created a team of seven policemen to establish and man a checkpoint in Barangay Danlugan, for the purpose of enforcing the gun ban then being implemented by the Commission on Elections. The team coordinated with the barangay chairman and put up a road block marked with the words Commission on Elections gun ban. Vehicles were stopped, and their occupants were politely requested to alight for a routine inspection. Motorists who refused were not forced to do so.

At about ten thirty in the morning of May 8, 1998, a red Tamaraw FX was stopped. Because its windows were tinted, a policeman knocked and requested the occupants to step down. Eight occupants alighted, including Abenes, who was the barangay chairman of Tawagan Norte, Labangan, Zamboanga del Sur. The policemen noticed a holstered firearm tucked at Abenes' right waist. It was readily visible and not covered by his shirt. When asked whether he had a license and authority to carry the firearm, and whether his possession was exempt from the gun ban, Abenes answered in the affirmative, but he could not show any document. The policemen confiscated the Norinco forty five caliber pistol and its magazine containing seven live ammunitions.

A certification from the Firearms and Explosives License Processing Section of the Philippine National Police stated that Abenes was neither a registered nor a licensed firearm holder. For his defense, Abenes claimed the firearm did not belong to him and was not taken from his person. He said it was found on the floor of the vehicle inside a clutch bag left by an unidentified person who had hitched a ride. The trial court found this version flimsy and unbelievable, and gave credence to the positive identification by the policemen.

Issues

• Whether or not the checkpoint was validly established.
• Whether or not the petitioner's constitutional right against unlawful search and seizure was violated.
• Whether or not the Court of Appeals committed grave abuse of discretion in adopting the trial court's findings of fact.
• Whether or not the petitioner is entitled to acquittal on the ground that the prosecution failed to prove his guilt beyond reasonable doubt.

Applicable Provisions

Section 261 of Batas Pambansa Blg. 881, the Omnibus Election Code, as originally worded, provides:

Sec. 261. Prohibited Acts. – The following shall be guilty of an election offense: (q) Carrying firearms outside residence or place of business. – Any person who, although possessing a permit to carry firearms, carries any firearms outside his residence or place of business during the election period, unless authorized in writing by the Commission: Provided, That a motor vehicle, water or air craft shall not be considered a residence or place of business or extension hereof.

This is the election offense provision under which Abenes was charged and convicted.

Section 32 of Republic Act Number 7166, amending Section 261 of the Omnibus Election Code, provides:

SEC. 32. Who May Bear Firearms. – During the election period, no person shall bear, carry or transport firearms or other deadly weapons in public places, including any building, street, park, private vehicle or public conveyance, even if licensed to possess or carry the same, unless authorized in writing by the Commission. The issuance of firearm licenses shall be suspended during the election period.

This provision makes clear that even a licensed holder may be convicted during the election period absent a written authority from the Commission on Elections.

Section 264 of the Omnibus Election Code provides:

Sec. 264. Penalties. – Any person found guilty of any election offense under this Code shall be punished with imprisonment of not less than one year but not more than six years and shall not be subject to probation. In addition, the guilty party shall be sentenced to suffer disqualification to hold public office and deprivation of the right of suffrage. If he is a foreigner, he shall be sentenced to deportation which shall be enforced after the prison term has been served.

This fixes the penalty affirmed against Abenes on the election offense.

Ruling

On the first issue, the Court upheld the validity of the checkpoint. Not all checkpoints are illegal. Those warranted by the exigencies of public order and conducted in a way least intrusive to motorists are allowed. The checkpoint was set up three days before the elections precisely to enforce the gun ban, and the production of a mission order was not necessary under the circumstances. The Court relied on its ruling in People versus Escaño, quoted at length, that routine checks limited to a visual search do not violate the right against unreasonable search.

On the second issue, the Court held that there was no violation of the right against unlawful search and seizure. The firearm was seized under the plain view doctrine, which applies when the officer has a prior justification for the intrusion, the discovery is inadvertent, and it is immediately apparent that the item may be evidence of a crime. All requisites were present. The policemen lawfully made the initial intrusion because of the gun ban, and they inadvertently saw the gun tucked into Abenes' waist when he alighted, before any frisk.

On the third issue, the Court found no grave abuse of discretion. The credibility of witnesses is primarily for the trial court to determine, and its assessment deserves great respect absent a showing of arbitrariness or oversight.

On the fourth issue, the Court split the charges. On illegal possession, the Court held that the prosecution failed to prove the negative allegation that Abenes had no license. The prosecution witness admitted his records were outdated, covering licenses only up to 1994, and that it was possible for Abenes to have acquired a license after that year. The absence of a license is an essential ingredient of the offense and must be proved beyond reasonable doubt. On the election offense, however, the Court affirmed the conviction. Under the Omnibus Election Code, the burden lies on the accused to show a written authority from the Commission on Elections, and Abenes presented none.

Doctrine

First, in crimes involving illegal possession of firearm, the prosecution bears the burden of proving the existence of the firearm and the fact that the accused does not have the corresponding license or permit. The absence of a license is an essential ingredient that must be shown by proof beyond reasonable doubt, such as a certification from the government agency concerned.

Second, under the Omnibus Election Code, the burden shifts. Even if the accused holds a valid license to possess the firearm, that alone cannot exculpate him. He must show a written authority from the Commission on Elections to carry the firearm during the election period.

Third, election period checkpoints warranted by the exigencies of public order and conducted in a way least intrusive to motorists are valid. Routine checks limited to a visual search do not violate the right against unreasonable search.

Fourth, under the plain view doctrine, objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be presented as evidence.

Disposition

The petition was partly granted. Abenes was acquitted of illegal possession of firearm under Presidential Decree Number 1866, but his conviction for violating the election offense under the Omnibus Election Code was affirmed.

Remember This

Memorize the burden shift: the prosecution must prove the lack of a license under the illegal possession law, but the accused must prove a written Commission on Elections authority under the election gun ban. Examiners use this case to test the plain view doctrine at election checkpoints and the essential elements of illegal possession of firearm.