ROMEO POSADAS Y ZAMORA, PETITIONER, VS. THE HONORABLE COURT OF APPEALS AND THE PEOPLE OF THE PHILIPPINES, RESPONDENTS.

The validity of a warrantless
search on the person of petitioner is put into issue in this case.

On October 16, 1986 at
about 10:00 o’clock in the morning Pat. Ursicio Ungab and Pat. Umbra Umpar,
both members of the Integrated National Police (INP) of the Davao Metrodiscom assigned
with the Intelligence Task Force, were conducting a surveillance along
Magallanes Street, Davao City. While
they were within the premises of the Rizal Memorial Colleges they spotted
petitioner carrying a “buri” bag and they noticed him to be acting
suspiciously.

They approached the
petitioner and identified themselves as members of the INP. Petitioner attempted to flee but his attempt
to get away was thwarted by the two notwithstanding his resistance.

They then checked the “buri” bag of the petitioner
where they found one (1) caliber .38 Smith & Wesson revolver with Serial
No. 770196^[1]
two (2) rounds of live
ammunition for a .38 caliber gun,^[2] a smoke (tear gas) grenade,^[3] and two (2) live ammunitions for a
.22 caliber gun.^[4]
They brought the petitioner to the police station for further
investigation. In the course of the
same, the petitioner was asked to show the necessary license or authority to
possess firearms and ammunitions found in his possession but he failed to do so. He was then taken to the Davao Metrodiscom office and the
prohibited articles recovered from him were indorsed to M/Sgt. Didoy, the
officer then on duty. He was prosecuted
for illegal possession of firearms and ammunitions in the Regional Trial
Court of Davao City wherein after a plea of not guilty and trial on the merits
a decision was rendered on October 8, 1987 finding petitioner guilty of the
offense charged as follows:

“WHEREFORE, in view of all the foregoing, this Court finds the
accused guilty beyond reasonable doubt of the offense charged.

It appearing that the accused was below eighteen (18) years old at
the time of the commission of the offense (Art. 68, par. 2), he is hereby
sentenced to an indeterminate penalty ranging from TEN (10) YEARS and ONE (1)
DAY of prision mayor to TWELVE (12) Years, FIVE (5) months and Eleven (11) days
of Reclusion Temporal, and to pay the costs.

The firearm, ammunitions and smoke grenade are forfeited in favor
of the government and the Branch Clerk of Court is hereby directed to turn over
said items to the Chief, Davao Metrodiscom, Davao City.”^[5]

Not satisfied therewith the petitioner interposed an appeal to
the Court of Appeals wherein in due course a decision was rendered on February
23, 1989 affirming in toto the appealed decision with costs
against the petitioner.^[6]

Hence, the herein petition for review, the main thrust of which
is that there being no lawful arrest or search and seizure, the items which
were confiscated from the possession of the petitioner are inadmissible in
evidence against him.

The Solicitor General, in justifying the warrantless search of
the buri bag then carried by the petitioner, argues that under Section 12, Rule
136 of the Rules of Court a person lawfully arrested may be searched for
dangerous weapons or anything used as proof of a commission of an offense
without a search warrant. It is further
alleged that the arrest without a warrant of the petitioner was lawful under
the circumstances.

Section 5, Rule 113 of the 1985 Rules on Criminal Procedure
provides as follows:

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

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

(b)         
When an offense has 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. (6a, 17a)”

From the foregoing provision of law it is clear that an arrest
without a warrant may be effected by a peace officer or private person, among
others, when in his presence the person to be arrested has committed, is
actually committing, or is attempting to commit an offense; or when an offense
has in fact just been committed, and he has personal knowledge of the facts indicating
that the person arrested has committed it.

The Solicitor General argues that when the two policemen
approached the petitioner, he was actually committing or had just committed the
offense of illegal possession of firearms and ammunitions in the presence of
the police officers and consequently the search and seizure of the contraband
was incidental to the lawful arrest in accordance with Section 12, Rule 126 of
the 1985 Rules on Criminal Procedure. We disagree.

At the time the peace officers in this case identified themselves
and apprehended the petitioner as he attempted to flee they did not know that
he had committed, or was actually committing the offense of illegal possession
of firearms and ammunitions. They just
suspected that he was hiding something in the buri bag. They did now know what its contents
were. The said circumstances did not
justify an arrest without a warrant.

However, there are many instances where a warrant and seizure can
be effected without necessarily being preceded by an arrest, foremost of which
is the “stop and search” without a search warrant at military or
police checkpoints, the constitutionality or validity of which has been upheld
by this Court in Valmonte vs. de Villa,^[7] as
follows:

“Petitioner Valmonte’s general allegation to the effect that
he had been stopped and searched without a search warrant by the military
manning the checkpoints, without more, i.e., without stating the details of the
incidents which amount to a violation of his right against unlawful search and
seizure, is not sufficient to enable the Court to determine whether there was a
violation of Valmonte’s right against unlawful search and seizure. Not all searches and seizures are
prohibited. Those which are reasonable
are not forbidden. A reasonable search
is not to be determined by any fixed formula but is to be resolved according to
the facts of each case.

Where, for example, the officer merely draws aside the curtain of a
vacant vehicle which is parked on the public fair grounds, or simply looks into
a vehicle or flashes a light therein, these do not constitute unreasonable
search.

The setting up of the questioned checkpoints in Valenzuela (and
probably in other areas) may be considered as a security measure to enable the NCRDC
to pursue its mission of establishing effective territorial defense and
maintaining peace and order for the benefit of the public. Checkpoints may also be regarded as measures
to thwart plots to destabilize the government in the interest of public security. In this connection, the Court may take
judicial notice of the shift to urban centers and their suburbs of the
insurgency movement, so clearly reflected in the increased killings in cities
of police and military men by NPA
“sparrow units,” not to mention the abundance of unlicensed firearms
and the alarming rise in lawlessnes and violence in such urban centers, not all
of which are reported in media, most likely brought about by deteriorating
economic conditions – which all sum up to what one can rightly consider, at the
very least, as abnormal times. Between the inherent right of the state
to protect its existence and promote public welfare and an individual’s right
against a warrantless
search which is however reasonably conducted, the former should prevail.

True, the manning of checkpoints by the military is susceptible of
abuse by the men in uniform in the same manner that all governmental power is
susceptible of abuse. But, at the cost
of occasional inconvenience, discomfort and even irritation to the citizen, the
checkpoints during these abnormal times, when
conducted within reasonable limits, are part of the price we
pay for an orderly society and a peaceful community. (Emphasis supplied).”

Thus, as between a warrantless search and seizure, conducted at
military or police checkpoints and the search thereat in the case at bar, there
is no question that, indeed, the latter is more reasonable considering that unlike in the former, it was effected
on the basis of a probable cause. The
probable cause is that when the petitioner acted suspiciously and attempted to
flee with the buri bag there was a probable cause that he was concealing
something illegal in the bag and it was the right and duty of the police
officers to inspect the same.

It is too much indeed to require the police officers to search
the bag in the possession of the petitioner only after they shall have obtained
a search warrant for the purpose. Such
an exercise may prove to be useless, futile and much too late.

In  People vs. CFI of Rizal,^[8]
this Court held as follows:

“x x x In the
ordinary cases where warrant is indispensably necessary, the mechanics
prescribed by the Constitution and reiterated in the Rules of Court must be
followed and satisfied. But We need not
argue that there are exceptions. Thus
in the extraordinary events where warrant is not necessary to effect a valid
search or seizure, or when the latter cannot be performed except without
warrant, what constitutes a reasonable or unreasonable search or seizure becomes purely a judicial question,
determinable from the uniqueness of the circumstances involved, including the
purpose of the search or seizure, the presence or absence of probable cause,
the manner in which the search and seizure was made, the place or thing searched
and the character of the articles procured.”

The Court reproduces with approval the following disquisition of
the Solicitor General:

“The assailed search and seizure may still be justified as
akin to a “stop and frisk” situation whose object is either to
determine the identity of a suspicious individual or to maintain the status
quo momentarily while the police officer seeks to obtain more
information. This is illustrated in the
case of Terry vs. Ohio, 392 U.S. 1 (1968). In this case, two men repeatedly walked past
a store window and returned to a spot where they apparently conferred with a
third man. This aroused the suspicion
of a police officer. To the experienced officer, the behaviour of
the men indicated that they were sizing up the store for an armed robbery. When the police officer approached the men
and asked them for their names, they mumbled a reply. Whereupon, the officer grabbed one of them, spun him around and
frisked him. Finding a concealed weapon
in one, he did the same to the other two and found another weapon. In the prosecution for the offense of
carrying a concealed weapon, the defense of illegal search and seizure
was put up. The United States Supreme
Court held that “a police officer may in appropriate circumstances and in an
appropriate manner approach a person for the purpose of investigating possible
criminal behaviour even though there is no probable cause to make an
arrest.” In such a situation, it is reasonable for an officer rather than
simply to shrug his shoulder and allow a crime to occur, to stop a suspicious
individual briefly in order to determine his identity or maintain the status
quo while obtaining more information. xxx

Clearly, the search in the
case at bar can be sustained under the exceptions heretofore discussed, and hence, the constitutional
guarantee against unreasonable searches and seizures has not been
violated.”^[9]

WHEREFORE, the petition is DENIED with costs against
petitioner.

SO ORDERED.

Narvasa, (Chairman), Cruz, Griño-Aquino, and Medialdea, JJ., concur.

^[1]
Exhibit B.

^[2]
Exhibits B1 and B2.

^[3]
Exhibit C.

^[4]
Exhibits D and D-1.

^[5]
Page 40, Rollo.

^[6]Justice
Bienvenido Ejercito, ponente, concurred in by Justices Felipe B. Kalalo
and Luis L. Victor.

^[7]
G.R. No. 83988, September 29, 1989.

^[8]
101 SCRA 86 (1986).

^[9]
Pages 67 to 69, Rollo.