THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROGELIO MENGOTE Y TEJAS, ACCUSED-APPELLANT.

Accused-appellant Rogelio Mengote was convicted of illegal possession
of firearms on the strength mainly of the stolen pistol found on his person at
the moment of his warrantless arrest. In this appeal, he pleads that the weapon was not admissible as evidence
against him because it had been illegally seized and was therefore the fruit of
the poisonous tree. The Government
disagrees. It insists that the revolver
was validly received in evidence by the trial judge because its seizure was
incidental to an arrest that was doubtless lawful even if admittedly without warrant.

The incident occurred shortly before noon of August 8, 1987,
after the Western Police District received a telephone call from an informer
that there were three suspicious-looking persons at the corner of Juan Luna and
North Bay Boulevard in Tondo, Manila. A
surveillance team of plainclothesmen was forthwith dispatched to the
place. As later narrated at the trial
by Patrolmen Rolando Mercado and Alberto Juan,^[1] they
there saw two men “looking from side to side,” one of whom was
holding his abdomen. They approached
these persons and identified themselves as policemen, whereupon the two tried
to run away but were unable to escape because the other lawmen had surrounded
them. The suspects were then
searched. One of them, who turned out
to be the accused-appellant, was found with a .38 caliber Smith and Wesson
revolver with six live bullets in the chamber. His companion, later identified as Nicanor Morellos, had a fan knife
secreted in his front right pants pocket. The weapons were taken from them. Mengote and Morellos were then turned over to police headquarters
for investigation by the Intelligence Division.

On August 11, 1987, the following information was filed against
the accused-appellant before the Regional Trial Court of Manila:

The undersigned accuses ROGELIO MENGOTE y TEJAS of a violation of
Presidential Decree No. 1866, committed as follows:

That on or about August 8, 1987, in the City of Manila,
Philippines, the said accused did then and there wilfully, unlawfully and
knowingly have in his possession and under his custody and control a firearm,
to wit:

one (1) cal. 38 “S
& W” bearing Serial No. 8720-T

without first having secured the necessary
license or permit therefor from the proper authorities.

Besides the police officers, one other witness presented by the
prosecution was Rigoberto Danganan, who identified the subject weapon as among
the articles stolen from him during the robbery in his house in Malabon on June 13, 1987. He pointed to Mengote as one of the robbers. He had duly reported the robbery to the
police, indicating the articles stolen from him, including the revolver.^[2] For his part, Mengote made no effort to
prove that he owned the firearm or that he was licensed to possess it and
claimed instead that the weapon had been “planted” on him at the time
of his arrest.^[3]

The gun, together with the live bullets and its holster, were
offered as Exhibits A, B and C and admitted over the objection of the
defense. As previously stated, the weapon was the principal evidence that
led to Mengote’s conviction for violation of P.D. 1866. He was sentenced to reclusion perpetua.^[4]

It is submitted in the Appellant’s Brief that the revolver should
not have been admitted in evidence because of its illegal seizure, no warrant
therefor having been previously obtained. Neither could it have been seized as an incident of a lawful arrest
because the arrest of Mengote was itself unlawful, having been also effected
without a warrant. The defense also
contends that the testimony regarding the alleged robbery in Danganan’s house
was irrelevant and should also have been disregarded by the trial court.

The following are the pertinent provision of the Bill of Rights:

Sec. 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.

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

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

There is no question that evidence obtained as a result of an
illegal search or seizure is inadmissible in any proceeding for any
purpose. That is the absolute
prohibition of Article III, Section 3(2), of the Constitution. This is the celebrated exclusionary rule
based on the justification given 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.”

The Solicitor General, while conceding the rule, maintains that
it is not applicable in the case at bar. His reason is that the arrest and search of Mengote and the seizure of
the revolver from him were lawful under Rule 113, Section 5, of the Rules of
Court reading as follows:

Sec. 5. Arrest without warrant; when lawful. – A peace
officer or private person may, without a warrant, arrest a person:

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

(b) When an offense has in
fact just been committed, and he has personal knowledge of facts indicating
that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.

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

We have carefully examined the wording of this rule and cannot
see how we can agree with the prosecution.

Par. (c) of Section 5 is obviously inapplicable as Mengote was
not an escapee from a penal institution when he was arrested. We therefore confine ourselves to
determining the lawfulness of his arrest under either Par. (a) or Par. (b) of
this section.

Par. (a) requires that the person be arrested (1) after he has
committed or while he is actually committing or is at least attempting to
commit an offense, (2) in the presence of the arresting officer.

These requirements have not been established in the case at
bar. At the time of the arrest in
question, the accused-appellant was merely “looking from side to
side” and “holding his abdomen,” according to the arresting
officers themselves. There was
apparently no offense that had just been committed or was being actually
committed or at least being attempted by Mengote their presence.

The Solicitor General submits that the actual existence of an
offense was not necessary as long as Mengote’s acts “created a reasonable
suspicion on the part of the arresting officers and induced in them the belief
that an offense had been committed and that the accused-appellant had committed
it.” The question is, What offense? What offense could possibly have been suggested by a person
“looking from side to side” and “holding his abdomen” and
in a place not exactly forsaken?

These are certainly not sinister acts. And the setting of the arrest made them less so, if at all. It might have been different if Mengote had
been apprehended at an ungodly hour and in a place where he had no reason to be, like a darkened alley at 3
o’clock in the morning. But he was
arrested at 11:30 in the morning and in a crowded street shortly after
alighting from a passenger jeep
with his companion. He was not skulking
in the shadows but walking in the clear light of day. There was nothing clandestine about his being on that street at
that busy hour in the blaze of the noonday sun.

On the other hand, there could have been a number of reasons, all
of them innocent, why his eyes were darting from side to side and he was
holding his abdomen. If they excited
suspicion in the minds of the arresting officers, as the prosecution suggests,
it has nevertheless not been shown what their suspicion was all about. In fact, the policemen themselves testified
that they were dispatched to that place only because of the telephone call from
the informer that there were “suspicious-looking” persons in that
vicinity who were about to commit a robbery
at North Bay Boulevard. The caller did
not explain why he thought the men looked suspicious nor did he elaborate on
the impending crime.

In the recent case of People v. Malmstedt,^[5] the
Court sustained the warrantless arrest of the accused because there was a bulge in his waist that excited the
suspicion of the arresting officer and, upon inspection, turned out to be a pouch containing hashish. In
People v. Claudio,^[6]
the accused boarded a bus and placed the buri bag she was carrying behind the
seat of the arresting officer while she herself sat in the seat before
him. His suspicion aroused, he
surreptitiously examined the bag, which he found to contain marijuana. He then and there made the warrantless
arrest and seizure that we subsequently upheld on the ground that probable
cause had been sufficiently established.

The case before us is different because there was nothing to
support the arresting officers’ suspicion other than Mengote’s darting eyes and
his hand on his abdomen. By no stretch
of the imagination could it have been inferred from these acts that an offense
had just been committed, or was actually being committed, or was at least being
attempted in their presence.

This case is similar to People v. Aminnudin,^[7] where
the Court held that the warrantless arrest of the accused was
unconstitutional. This was effected while
he was coming down a vessel, to all appearances no less innocent than the other
disembarking passengers. He had not
committed nor was he actually committing or attempting to commit an offense in
the presence of the arresting officers. He was not even acting suspiciously. In short, there was no probable cause that, as the prosecution
incorrectly suggested, dispensed with the constitutional requirement of a
warrant.

Par. (b) is no less applicable because its no less stringent
requirements have also not been satisfied. The prosecution has not shown that at the time of Mengote’s arrest an
offense had in fact just been committed and that the arresting officers had personal
knowledge of facts indicating that Mengote had committed it. All they had was hearsay information from
the telephone caller, and about a crime that had yet to be committed.

The truth is that they did not know then what offense, if at all,
had been committed and neither were they aware of the participation therein of
the accused-appellant. It was only
later, after Danganan had appeared at the police headquarters, that they
learned of the robbery in his house and of Mengote’s supposed involvement
therein.^[8]
As for the illegal possession of the firearm found on Mengote’s person, the
policemen discovered this only after he had been searched and the
investigation conducted later revealed that he was not its owners nor was he
licensed to possess it.

Before these events, the peace officers had no knowledge even of
Mengote’ identity, let alone the fact (or suspicion) that he was unlawfully carrying a firearm or
that he was involved in the robbery of Danganan’s house.

In the landmark case of People v. Burgos,^[9] this
Court declared:

Under Section 6(a) of Rule 113, the officer arresting a person who has
just committed, is committing, or is about to commit an offense must have personal
knowledge of the fact. The offense must also be committed in his
presence or within his view. (Sayo
v. Chief of Police, 80 Phil. 859). (Underscoring supplied)

x x x

In arrests without a warrant under Section 6 (b), however, it is
not enough that there is reasonable ground to believe that the person to be
arrested has committed a crime. A
crime must in fact or actually have been committed first. That a crime has actually been committed is
an essential precondition. It is not
enough to suspect that a crime may have
been committed. The fact of the
commission of the offense must be undisputed. The test of reasonable ground
applies only to the identity of the perpetrator. (Underscoring supplied)

This doctrine was affirmed in Alih v. Castro,^[10]
thus:

If the arrest was made under Rule 113, Section 5, of the Rules of
Court in connection with a crime about to be committed, being committed, or
just committed, what was that crime? There is no allegation in the record of such a justification. Parenthetically, it may be observed that
under the Revised Rule 113, Section 5(b), the officer making the arrest must
have personal knowledge of the ground therefor as stressed in the recent
case of People v. Burgos. (Underscoring
supplied)

It would be a sad day, indeed, if any person could be summarily
arrested and searched just because he is holding his abdomen, even if it be
possibly because of a stomach-ache, or if a peace officer could clamp handcuffs
on any person with a shifty look on suspicion that he may have committed a
criminal act or is actually committing or attempting it. This simply cannot be done in a free
society. This is not a police state
where order is exalted over liberty or, worse, personal malice on the part of
the arresting officer may be justified in the name of security.

There is no need to discuss the other issues raised by the
accused-appellant as the ruling we here make is sufficient to sustain his
exoneration. Without the evidence of
the firearm taken from him at the time of his illegal arrest, the prosecution
has lost its most important exhibit and must therefore fail. The testimonial evidence against Mengote
(which is based on the said firearm) is not sufficient to prove his guilt
beyond reasonable doubt of the crime imputed to him.

We commend Atty. Violeta Calvo-Drilon for her able and spirited
defense of the accused-appellant not only in the brief but also in the reply
brief, which she did not have to file but did so just the same to stress the
constitutional rights of her client. The fact that she was acting only as a counsel de oficio
with no expectation of material reward makes her representation even more
commendable.

The Court feels that if the peace officers had been more mindful
of the provisions of the Bill of Rights, the prosecution of the
accused-appellant might have succeeded. As it happened, they allowed their over-zealousness to get the better of
them, resulting in their disregard of the requirements of a valid search and
seizure that rendered inadmissible the vital evidence they had invalidly
seized.

This should be a lesson
to other peace officers. Their
impulsiveness may be the very cause of the acquittal of persons who deserve to
be convicted, escaping the clutches of the law because, ironically enough, it
has not been observed by those who are supposed to enforce it.

WHEREFORE, the appealed decision is REVERSED and SET
ASIDE. The accused-appellant is
ACQUITTED and ordered released immediately unless he is validly detained for other offenses. No costs.

SO ORDERED.

Griño-Aquino, Medialdea, and
Bellosillo, JJ., concur.

^[1]
TSN, September 21, 1987, October 21, 1987.

^[2]
Records, p. 54.

^[3]
TSN, October 26, 1987, p. 11.

^[4]
Through Judge Romeo J. Callejo.

^[5]
198 SCRA 401.

^[6]
160 SCRA 646.

^[7]
163 SCRA 402.

^[8]
TSN, September 23, 1987, p. 10.

^[9]
144 SCRA 1.

^[10]
151 SCRA 279.