THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MIKAEL MALMSTEDT, DEFENDANT-APPELLANT.

DISSENTING OPINION

CRUZ, J.:

I join Mr. Justice Andres R. Narvasa in his dissent, which I
believe represents the correct application to the facts of this case of the
provisions of the Bill of Rights and the Rules of Court on searches and
seizures.  It is consistent with my ponencia
in People v. Amminudin, 163 SCRA 402, and also with Alih v. Castro, 151 SCRA
279, the latter being a unanimous decision of the Court en banc, and my dissents in Umil v. Ramos (on
warrantless arrests), 187 SCRA 311, Valmonte v. De Villa (on checkpoints), 178
SCRA 211, 185 SCRA 665, and Guazon v. De Villa (on “zonas”), 181 SCRA
623.

I write this separate opinion merely to remark on an observation
made during the deliberation on this case that some members of the Court seem
to be coddling criminals instead of extending its protection to society, which
deserves our higher concern.  The
inference is that because of our wrong priorities, criminals are being
imprudently let free, to violate our laws again; and it is all our fault.

Believing myself to be among those alluded to, I will say without
apology that I do not consider a person a criminal until he is convicted by
final judgment after a fair trial by a competent and impartial court.  Until then, the Constitution bids us to presume
him innocent.  He may seem boorish or
speak crudely or sport tattoos or dress weirdly or otherwise fall short of our
own standards of propriety and decorum. 
None of these makes him a criminal
although he may look like a criminal.

It is so easy to condemn a person on the basis of his appearance but it is
also so wrong.

On the question before us, it seems to be the inclination of some
judges to wink at an illegal search and seizure as long as the suspect has been
actually found in possession of a prohibited article.  That fact will retroactively validate the
violation of the Bill of Rights for after all, as they would rationalize, the
suspect is a criminal.  What matters
to them is the fact of illegal possession, not the fact of illegal search and
seizure.

This kind of thinking takes us back to the intolerant days of
Moncado v. People’s Court, 80 Phil. 1, which was discredited in Stonehill v.
Diokno, 20 SCRA 383, even before it was definitely rejected by an express
provision in the 1973 Constitution.  That
provision, which has been retained in the present Constitution, again
explicitly declares that any evidence illegally obtained “shall be
inadmissible for any purpose in any proceeding.”

The fruit of the forbidden tree should not be allowed to poison
our system of criminal justice.  In the
case at bar, the search was made at a checkpoint established for the
preposterous reason that the route was being used by marijuana dealers and on
an individual who had something bulging at his waist that excited the soldier’s
suspicion.  Was that probable cause?  The ponencia notes that the military
had advance information that a Caucasian was coming from the Sagada with prohibited
drugs in his possession.  This is what
the military says now, after the fact, to justify the warrantless
search.  It is so easy to make such a claim, and
I am surprised
that the majority should readily accept it.

The conclusion that there was probable cause may have been
influenced by the subsequent discovery that the accused was carrying a prohibited
drug.  This is supposed to justify the
soldier’s suspicion.  In other words, it
was the fact of illegal possession that retroactively established the
probable cause that validated the illegal search and seizure.  It was the fruit
of the forbidden tree that washed clean the tree itself.

In Olmstead v. U.S., 277 U.S. 438, Justice Holmes said sixty-four years ago:

x x x It is
desirable that criminals should be detected, and to that end that all available
evidence should be used.  It is also
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 in the future 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.

If by deterring the
government from playing “an ignoble part,” I am “coddling
criminals,” I welcome the accusation and take pride in it.  I would rather err in favor of the accused
who is impaled with outlawed evidence than exalt order at the price of liberty.

SEPARATE OPINION*

NARVASA, J.:

The ancient tradition that a man’s home is his castle, safe from
intrusion even by the king, has not only found its niche in all our charters,
from 1935 to the present; it has also received unvarying recognition and
acceptance in our case law.^[1]
The present Constitution^[2]
declares that –

“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.”

It
further ordains that any evidence obtained in violation of said right, among
others, “shall be inadmissible for any purpose in any proceeding.”^[3]

The rule is that no person may be subjected by the police or
other government authority to a search of his body, or his personal effects or
belongings, or his residence except by virtue of a search warrant or on the
occasion of a legitimate arrest.^[4]
An arrest is legitimate, of course, if effected by virtue of a warrant of
arrest.  Even without a warrant, an
arrest may also be lawfully made by a peace officer or a private person:^[5]

“(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.”

In
any of these instances of a lawful arrest, the person 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.”^[6] And it has been held that the search may
extend to the area “within his immediate control,” i.e., the area from
which said person arrested might gain possession of a weapon or destructible
evidence.^[7]

Apart from “search incidental to an arrest,” a
warrantless search has also been held to be proper in cases of “search of
a moving vehicle,”^[8]
and “seizure of evidence in plain view.”^[9]
This was the pronouncement in Manipon, Jr. v. Sandiganbayan, 143 SCRA 267, 276,
which drew attention to Moreno v. Ago Chi;^[10] Alvero
v. Dizon,^[11] Papa
v. Mago,^[12] and an
American precedent, Harris v. U.S.^[13]

If, on the other hand, a person is searched without a warrant, or
under circumstances other than those justifying an arrest without warrant in
accordance with law, supra, merely on suspicion that he is engaged in
some felonious enterprise, and in order to discover if he has indeed committed a
crime, it is not only the arrest which is illegal but also, the search on the
occasion thereof, as being “the fruit of the poisonous tree.”^[14]
In that event, any evidence taken, even if confirmatory of the initial
suspicion, is inadmissible “for any purpose in any proceeding.”^[15]
But the right against an unreasonable search and seizure may be waived by the
person arrested, provided he knew of such right and knowingly decided not to
invoke it.^[16]

There is unanimity among the members of the Court upon the
continuing validity of these established principles.  However, the Court is divided as regards the
ultimate conclusions which may properly be derived from the proven facts and
consequently, the manner in which
the principles just cited should apply thereto.

The proofs of the prosecution and those of the defense are
diametrically at odds.  What is certain,
however, is that the soldiers had no warrant of arrest when they conducted a
search of Malmstedt’s person and the things in his possession at the time.  Indeed, the Court a quo acknowledged
that the soldiers could “not be expected to be armed with a warrant or
arrest nor a search warrant everytime they establish a temporary checkpoint **
(and) no judge would issue them one considering that searching questions have
to be asked before a warrant could be issued.” Equally plain is that prior
to the search, a warrantless arrest of Malmstedt could not validly have been
made in accordance with the norms of the law. 
For Malmstedt had not committed, nor was he actually committing or
attempting to commit a crime, in the soldiers’ presence, nor did said soldiers
have personal and competent knowledge that Malmstedt had in fact just committed
a crime.  All they had was a suspicion
that Malmstedt might have some prohibited drug on him or in his bags; all they
had was, in the words of the Trial Court, “the hope of intercepting any
dangerous drug being transported,” or, as the Office of the Solicitor
General asserts, “information that most of the buses coming ** (from the
Cordillera) were transporting marijuana and other prohibited drugs.”

This case, is remarkably similar to Peo. v. Aminnudin, decided on
July 6, 1988 also by the First Division.^[17]
There, Aminnudin was arrested without a warrant by PC officers as he was
disembarking from an inter­-island vessel. 
The officers were waiting for him because he was, according to an
informer’s report, then transporting marijuana. 
The search of Aminnudin’s bag confirmed the informer’s report: the bag
indeed contained marijuana.  The Court nevertheless
held that since the PC officers had failed to procure a search warrant although
they had sufficient time (two days) to do so and therefore, the case presented
no such urgency as to justify a warrantless search, the search of Aminnudin’s
person and bag, the seizure of the marijuana and his subsequent arrest were
illegal; and the marijuana was inadmissible in evidence in the criminal action
subsequently instituted against Aminnudin for violating the Dangerous Drugs
Act.

 There are, on the other
hand, other cases adjudicated by this Court in which apparently different
conclusions were reached.  It is needful
to devote a few words to them so that the relevant constitutional and legal
propositions are not misunderstood.

In People v. Claudio (decision promulgated on April 15, 1988),^[18]
the accused boarded a “Victory Liner” passenger bus going to Olongapo
from Baguio City.  She placed the plastic
bag she was carrying at the back of the seat then occupied by Obiña, an INP
member “on Detached Service with the Anti-Narcotics Unit.” This
avowedly aroused Obiña’s suspicion, and at the first opportunity, and without
Claudio’s knowledge, he surreptitiously looked into the plastic bag and noted
that it contained camote tops as well as a package, and that there emanated
from the package the smell of marijuana with which he had become familiar on
account of his work.  So when the bus
stopped at Sta. Rita, and Claudio alighted, Obiña accosted her, showed her his
ID, identified himself as a policeman, and announced his intention to search
her bag which he said contained marijuana because of the distinctive odor
detected by him.  Ignoring her plea —
“Please go with me, let us settle this at home” — he brought her to
the police headquarters, where examination of the package in Claudio’s bag
confirmed his suspicion that it indeed contained marijuana.  The Court held the warrantless arrest under
the circumstances to be lawful, the search justified, and the evidence thus
discovered admissible in evidence against the accused.

In People v. Tangliben (decision promulgated on April 6, 1990),^[19]
two police officers and a barangay tanod were conducting a “surveillance
mission” at the Victory Liner Terminal at San Nicolas, San Fernando,
Pampanga “aimed not only against persons who may commit misdemeanors **
(there) but also on persons who may be engaging in the traffic of dangerous
drugs based on information supplied by informers; * * they noticed a person
carrying a red traveling bag; ** who was acting suspiciously;” they asked
him to open the bag; the person did so only after they identified themselves as
peace officers; found in the bag were marijuana leaves wrapped in plastic
weighing one kilogram, more or less; the person was then taken to the police
headquarters at San Fernando, Pampanga, where he was investigated; and an
information was thereafter filed against that person, Tangliben, charging him
with a violation of the Dangerous Drugs Act of 1972 (RA 6425), as amended.  Upon these facts it was ruled, citing Claudio, supra,
that there was a valid warrantless arrest and a proper warrantless search
incident thereto.

The facts in Tangliben were pronounced to be different from
those in People v. Aminnudin,
supra.  “In contrast” to Aminnudin where the
Court perceived no urgency as to preclude the application for and obtention of
a search warrant, it was declared that the Tangliben case –

” * * presented urgency.  ** (The evidence revealed) that there
was an informer who pointed to the accused-appellant as carrying
marijuana.  ** Faced with such
on-the-spot information, the police officers had to act quickly.  There was not enough time to secure a search
warrant.  * * To require search warrants
during on-the-spot apprehensions of drug pushers, illegal possessors of
firearms, jueteng collectors, smugglers of contraband goods, robbers, etc.
would make it extremely difficult, if not impossible to contain the crimes with
which these persons are associated.”

In Tangliben, therefore, there was in the Court’s
view sufficient evidence on hand to enable the PC officers to secure a search
warrant, had there been time.  But because there was
actually no time to get the warrant, and there were “on-the-spot”
indications that Tangliben was then actually committing a crime, the search of
his person and his effects was considered valid.

Two other decisions presented substantially similar
circumstances:  Posadas v. C.A.,
et al.,
decided on August 2, 1990,^[20]
and People
v. Moises Maspil, Jr., et al., decided on August 20, 1990.^[21]

In the first case, Posadas was seen to be acting suspiciously by
two members of the INP, Davao Metrodiscom, and when he was accosted by the two,
who identified themselves as police officers, he suddenly fled.  He was pursued, overtaken and,
notwithstanding his resistance, placed in custody.  The buri bag Posadas was then carrying was
found to contain a revolver, for which he could produce no license or authority
to possess, four rounds of live ammunition, and a tear gas grenade.  He was prosecuted for illegal possession of
firearms and ammunition and convicted after trial.  This Court affirmed Posadas’ conviction,
holding that there was, in the premises, probable cause for a search without
warrant, i.e., the appellant was acting suspiciously and attempted to flee with
the buri bag he had
with him at the time.  The Court cited
with approval the ruling of the U.S. Federal Supreme Court in John W.
Terry
v. State of Ohio,^[22] a 1968 case, which the Solicitor
General had invoked to justify the search.

In the case of Maspil, et al., a
checkpoint was set up by elements of the First Narcotics Regional Unit of the
Narcotics Command at Sayangan, Atok, Benguet, to monitor, inspect and
scrutinize vehicles on the highway going towards Baguio City.  This was done because of a confidential
report by informers that Maspil and another person, Bagking, would be
transporting a large quantity of marijuana to Baguio City.  In fact, the informers were with the
policemen manning the checkpoint.  As
expected, at about 2 o’clock in the early morning of November 1, 1986, a
jeepney approached the checkpoint, driven by Maspil, with Bagking as
passenger.  The officers stopped the
vehicle and saw that on it were loaded 2 plastic sacks, a jute sack, and 3 big
round tin cans.  When opened, the sacks
and cans were seen to contain what appeared to be marijuana leaves.  The policemen thereupon placed Maspil and
Bagking under arrest, and confiscated the leaves which, upon scientific
examination, were verified to be marijuana leaves.  The Court upheld the validity of the search
thus conducted, as being incidental to a lawful warrantless arrest,^[23]
and declared that, as in Tangliben, supra, Maspil and Bagking had been caught in flagrante delicto transporting
prohibited drugs at the time of their arrest. 
Again, the Court took occasion to distinguish the case from Aminnudin^[24] in which,
as aforestated, it appeared that the police officers were aware of Aminnudin’s
identity, his projected criminal enterprise and the vessel on which he would be
arriving, and, equally as importantly, had sufficient time and opportunity to
obtain a search
warrant.  In the case of Maspil and
Bagking, the Court found that the officers concerned had no exact description
of the vehicle the former would be using to transport marijuana, and no inkling
of the definite time of the suspects’ arrival, and pointed out that a jeepney
on the road is not the same as a passenger boat on the high seas whose route
and time of arrival are more or less certain, and which ordinarily cannot
deviate from or otherwise alter its course, or select another destination.^[25]

The most recent decision treating of warrantless search and
seizure appears to be People v. Lo Ho Wing, etc., et al, G.R. No.
88017, decided on January 21, 1991 (per Gancayco, J.).  In that case, an undercover or “deep
penetration” agent, Tia, managed somehow to gain acceptance into a group
of suspected drug smugglers, which included Peter Lo and Lim Ching Huat.  Tia accompanied Peter Lo, to Guangzhou,
China, where he saw him and other persons empty the contents of six (6) tins of
tea and replace them with white powder. 
On their return to Manila with the cans of substituted “tea,”
they were met at the airport by Lim.  As
they were leaving the airport in separate vehicles, they were intercepted by
officers and operatives of the Narcotics Command (NARCOM), who had earlier been
tipped off by Tia, and placed under arrest. 
A search of the luggage brought in by Tia and Peter Lo, loaded on the
group’s vehicles, quickly disclosed the six (6) tin cans containing fifty-six
(56) bags of white crystalline powder which, upon analysis, was identified as
metamphetamine.  Tia, Lo and Lim were
indicted for violation of the Dangerous Drugs Act of 1972.  Tia was discharged as state witness.  Lo and Lim were subsequently convicted and
sentenced to life imprisonment.  One of
the questions raised by them in this Court on appeal was whether the
warrantless search of their vehicles and personal effects was legal.  The Court, citing Manipon, Jr. v. Sandiganbayan, 143 SCRA 267 (1986),^[26]
held legal the search of the appellants’ moving vehicles and the seizure
therefrom of the dangerous drug, considering that there was intelligence
information, including clandestine reports by a planted spy actually
participating in the activity, that the appellants were bringing prohibited
drugs into the country; that the requirement of obtaining a search warrant
“borders on the impossible in the case of smuggling effected by the use of
a moving vehicle that can transport contraband from one place to another with
impunity,” and “it is not practicable to secure a warrant because the
vehicle can be quickly moved out of the locality or jurisdiction in which the
warrant must be sought.”^[27]

In all five cases, Claudio, Tangliben, Posadas, Maspil, and Lo Ho Wing, facts existed which were found by the Court as justifying
warantless arrests.  In Claudio, the
arresting officer had secretly ascertained that the woman he was arresting was
in fact in possession of marijuana:  he
had personally seen that her bag contained not only vegetables but also a
package emitting the odor of marijuana. 
In Tangliben, the person arrested and searched was acting suspiciously, and
had been positively pointed to as carrying marijuana.  And in both cases, the accused were about to
board passenger buses, making it urgent for the police officers concerned to
take quick and decisive action.  In Posadas, the person
arrested and searched was acting suspiciously, too, and when accosted had
attempted to flee from the police officers. 
And in Maspil and Lo Ho Wing, there was
definite information of the precise identity of the persons engaged in
transporting prohibited drugs at a particular time and place.

Now,
as regards the precise issue at hand, whether or not the facts in the
case at bar make out a legitimate instance of a warrantless search and seizure, there,
is, as earlier pointed out, a regrettable divergence of views among the members
of the Court.

Contrary to the conclusion reached by the majority, I believe
that the appellant should be absolved on reasonable doubt.  There was in this case no confidential report
from, or positive identification by an informer; no attempt to flee; no bag or
package emitting tell- tale odors; no other reasonably persuasive indications
that Malmstedt was at the time in process of perpetrating the offense for which
he was subsequently prosecuted.  Hence,
when the soldiers searched Malmstedt’s pouch and the bags in his possession,
they were simply “fishing” for evidence.  It matters not that the search disclosed that
the bags contained prohibited substances, confirming their initial information
and suspicion.  The search was not made
by virtue of a warrant or as an incident of a lawful warrantless arrest, i.e.,
under circumstances sufficient to engender a reasonable belief that some crime
was being or about to be committed, or had just been committed.  There was no intelligent and intentional
waiver of the right against unreasonable searches and seizure.  The search was therefore illegal, since the
law requires that there first be a lawful arrest of an individual before a
search of his body and his belongings may licitly be made.  The process cannot be reversed, i.e., a
search be first undertaken, and then an arrest effected, on the strength of the
evidence yielded by the search.  An
arrest made in that case would be unlawful, and the search undertaken as an
incident of such an unlawful arrest, also unlawful.

The fact that when investigated at the headquarters of the
Narcotics Command at Camp Dangwa, La Trinidad, Malmstedt had, it is said,
willingly admitted that there were was hashish inside the “teddy
bears” in the luggage found in his possession — an admission subsequently
confirmed by laboratory examination — does not help the cause of the
prosecution one bit.  Nothing in the
record even remotely suggests that Malmstedt was accorded the rights guaranteed
by the Constitution to all persons under custodial investigation.^[28]
He was not informed, prior to being interrogated, that he had the “right
to remain silent and to have competent and independent counsel preferably of
his own choice,” and that if he could not afford the services of counsel,
he would be provided with one; not does it appear at all that he waived those
rights “in writing and in the presence of counsel.” The soldiers and
the police officers simply went ahead with the investigation of Malmsted,
without counsel.  The admissions elicited
from Malmstedt under these circumstances, as the Constitution clearly states,
are “inadmissible in evidence against him.”^[29]

The prohibited drugs supposedly discovered in Malmstedt’s bags,
having been taken in violation of the constitutional right against unreasonable
searches and seizures, are inadmissible against him “for any purpose in
any proceeding.” Also pronounced as incompetent evidence against him are
the admissions supposedly made by him without his first being accorded the
constitutional rights of persons under custodial investigation.  Without such object evidence and admissions,
nothing remains of the case against Malmstedt.

It may be conceded that, as the Trial Court points out, the
evidence presented by Malmstedt in his defense is feeble, unworthy of
credence.  This is beside the point; for
conformably to the familiar axiom, the State must rely on the strength of its
evidence and not on the weakness of the defense.  The unfortunate fact is that although the
existence of the hashish is an objective physical reality that cannot but be
conceded, there is in law no evidence to demonstrate with any degree of
persuasion, much less beyond reasonable doubt, that Malmstedt was engaged in a
criminal activity.  This is the paradox
created by the disregard of the applicable constitutional safeguards.  The tangible benefit is that the hashish in
question has been correctly confiscated and thus effectively withdrawn from
private use.

What is here said should not by any means be taken as a
disapproval or a disparagement of the efforts of the police and military
authorities to deter and detect offenses, whether they be possession of and
traffic in prohibited drugs, or some other. 
Those efforts obviously merit the support and commendation of the Courts
and indeed of every responsible citizen. 
But those efforts must take account of the basic rights granted by the
Constitution and the law to persons who may fall under suspicion of engaging in
criminal acts.  Disregard of those rights
may not be justified by the objective of ferreting
out and punishing crime, no matter how eminently desirable attainment of
that objective might be.  Disregard of
those rights, as
this Court has earlier stressed, may result in the escape of the guilty,
and all because the “constable has blundered,” rendering the evidence
inadmissible even if truthful or otherwise credible.^[30]

I therefore vote to reverse the Trial Court’s judgment of October
12, 1989 and to acquit the appellant on reasonable doubt.

* The case was referred to the
Court En Banc by the First Division (to which it had originally been
assigned).  Thereafter the Court En
Banc resolved to accept and itself decide the case.

^[1]
SEE Peo. v. Burgos, 144 SCRA 1 (1986); Roan v. Gonzales, 145 SCRA
687 (1986); Alih v. Castro, 151 SCRA 279 (1987); Guazon v. de
Villa, G.R. No. 80508, Jan. 30, 1990

^[2]
ART. III, Sec. 2, 1987 Constitution; to the same effect: ART. IV, Sec. 3, 1973
Constitution, and ART. IV, Sec. 3, 1935 Constitution

^[3]
ART III, Sec. 3 (2)

^[4]
Peo v. de la Cruz, G.R. No. 83260, April 18, 1990.

^[5]
Sec. 5, Rule 113, Rules of Court; SEE Cruz, I.A., Constitutional Law, 1987 ed.,
pp. 141-142, citing Adams v. Williams, 47 U.S. 143 and Terry v.
Ohio, 392 U.S. 1

^[6]
Sec. 12, Rule 126, Rules of Court

^[7]
SEE Chimel v. California, 395 U.S. 752 (1969), cited in the monograph of Mr. Justice Mendoza, V.V. entitled Reflections on the Constitutional Law of
Arrest, Search and Seizure, Philippine
Law Journal, Vol. LXIII, Third Quarter, September, 1988, p. 241.

^[8]
As pointed out in Cruz, op. cit., p. 142, in the U.S., “searches
without warrant may also be made of automobiles for the purpose of preventing
violations of smuggling or immigration laws, provided such searches are made at
borders or ‘constructive borders’ like checkpoints near the boundary lines of
the State,” but “the mere mobility of these vehicles does not justify
their indiscriminate searches without warrants if made within the interior of
the territory and in the absence of probable cause (Almeida-Sanchez v.
U.S., 37 L. ed. 2d 596; Carroll v. U.S. 267 U.S. 132).”

^[9]
SEE footnote 13, infra

^[10]
12 Phil. 439, to the effect that, “An officer making an arrest may take
from the person arrested any money or property found upon his persons which was
used in the commission of the crime or was the fruit of the crime of which
might furnish the prisoner with the means of committing violence or escaping,
or which may be used in evidence in the trial of the case.”

^[11]
76 Phil. 637 to the effect that, “The most important exception to the
necessity for a search warrant is the right of search and seizure as an
incident to a lawful arrest. A lawful arrest may be made either while a crime
is being committed or after its commission. The right to search includes in
both instances that of searching the person of him who is arrested, in order to
find and seize things connected with the crime as its fruits or as the means by
which it was committed (Agnello vs. United States, 269 U.S., 20).”

^[12]
22 SCRA 857 — that the “Tariff and Customs Code does not require any
search warrant issued by a competent court before police authorities can effect
the seizure. But the Code requires it in the search of a dwelling house.”

^[13]
390 U.S. 234, holding that “prohibited articles within plain view, ‘open
to eye and hand,’ of the law-enforcement officer who comes upon them
‘inadvertently,’ may also be seized by him even without warrant (SEE Cruz, op.
cit., p. 143)

^[14]
SEE U.S. v. Hachaw, 21 Phil. 514 (1912); U.S. v. Santos, 36 Phil.
853 (1917), Integrated Bar of the Philippines v. Enrile, Oct. 21, 1985,
cited in Gupit, Rules of Criminal Procedure, 1986 ed., pp. 179-182; Peo. v.
Aminnudin, 163 SCRA 402 (1988); Guazon v. de Villa, G.R. No. 80508, Jan.
30, 1990; cf., Peo. v. Cruz, 165 SCRA 135 (1988)

^[15]
Nolasco v. Ernani Cruz-Paño, 147 SCRA 509 (1987); SEE, also, People v.
Burgos, 144 SCRA 1 (1986) where the petitioner, while plowing his field, was
arrested and his premises searched on
the basis of information that he was in possession of unlicensed firearms, and
thereafter, on discovery by the authorities of a gun and subversive documents,
had admitted ownership thereof — upon which facts, this Court ruled the gun
and documents to be inadmissible in evidence because their seizure was not an
incident of a lawful arrest, and his acknowledgment of ownership thereof
equally incompetent because obtained in violation of the Miranda doctrine.

^[16]
SEE Cruz, op. cit., p.
142, citing Terry v. Ohio, supra, and Magoncia v. Palacio,
80 Phil. 770, and pointing out, on the authority of Callanta v.
Villanueva, 77 SCRA 377 and Bagcal v. Villaraza, 120 SCRA 525, that the posting
by the accused of a bail bond constitutes waiver of any irregularity attending
his arrest and estops him from questioning its validity.

^[17]
163 SCRA 402, per Cruz, J.,
Griño-Aquino, J., dissenting; SEE footnote 6 at page 2, supra

^[18]
160 SCRA 646, Third Division, per Gutierrez, Jr., J.

^[19]
184 SCRA 220, Third Division, per Gutierrez, Jr., J.

^[20]
G.R. No. 83139, First Division, per Gancayco, J.

^[21]
G.R. No. 85177, Third Division, per Gutierrez, Jr., J.

^[22]
392 US 1, 20 L Ed 2d 889, 88 S Ct 1868

^[23]
Sec. 12, Rule 126 in relation to Sec. 5, Rule 113 of the 1985 Rules of Criminal
Procedure

^[24]
SEE footnote 20, supra

^[25]
Attention may be drawn, in this connection, to the Resolution of May 24, 1990
in G.R. No. 83988 (Valmonte v. de Villa, [Sept. 29, 1989], 178 SCRA 211)
where the Court cited with approval a ruling of the U.S. Supreme Court that
“Automobiles, because of their mobility, may be searched without a warrant
upon facts not justifying a warrantless search of a residence or office.
Brinegar v. United States, 338 US 160, 93 L Ed 1879, 69 S Ct 1302
(1949); Carroll v. United States, 267 US 132, 69 L Ed 543, 45 S Ct 280,
39 ALR 790 (1925). The cases so holding have, however, always insisted that the
officers conducting the search have ‘reasonable or probable cause’ to believe
that they will find the instrumentality of a crime or evidence pertaining to a
crime before they begin their warrantless search. ** (Dyke v. Taylor,
391 US 216, 20 L Ed 538, 88 S Ct 1472).”

^[26]
SEE footnotes 9 and 13, supra

^[27]
Citing Carroll v. U.S., 267 U.S. 132, 153 (1925)

^[28]
ART. III, Sec. 12 (1)

^[29]
Id., Sec. 12 (3); Peo. v. Buenaflor, G.R. No. 62805, Jan. 22,
1990; Peo. v. Camalog, G.R. No. 77116, Jan. 31, 1989; Peo. v.
Lagahan, G.R. No. 78692, Dec. 8, 1988; Peo. v. Newman, G.R. No. 45354,
July 26, 1988

^[30]
Peo. v. Hizon, G.R. No. 71273, July 29, 1988, per Cruz, J.