FIRST DIVISION

[G.R. No. 87059. June 22, 1992.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGELIO

MENGOTE Y TEJAS, accused-appellant.

The Solicitor General for plaintiff-appellee.

Violeta C. Drilon counsel de oficio for accused-appellant.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST ILLEGAL SEARCH

AND SEIZURE; EVIDENCE OBTAINED IN VIOLATION THEREOF; EFFECT; CASE AT
BAR. 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
eected 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. 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 justication given
by Judge Learned Hand that "only in case the prosecution which itself controls the
seizing ocials, knows that it cannot prot by their wrong will the wrong be
repressed."

2. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT;

WHEN LAWFUL; REQUISITES; NOT ESTABLISHED IN CASE AT BAR. 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. 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 conne
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
oense, (2) in the presence of the arresting ocer. 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 ocers themselves. There was apparently no
oense that had just been committed or was being actually committed or at least
being attempted by Mengote in their presence. Par. (b) is no less applicable because
its no less stringent requirements have also not been satised. The prosecution has
not shown that at the time of Mengote's arrest an oense 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.

DECISION

CRUZ, J :
p

Accused-appellant Rogelio Mengote was convicted of illegal possession of rearms

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
J uan, 1 they there saw two men "looking from side to side," one of whom was
holding his abdomen. They approached these persons and identied 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 identied 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.
LLpr

On August 11, 1987, the following information was led 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 rst having secured the necessary license or permit therefor from
the proper authorities.

Besides the police ocers, one other witness presented by the prosecution was
Rigoberto Danganan, who identied 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 eort to prove that he owned the rearm 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 oered 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 eected
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 eects 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
armation 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 justication given by Judge Learned Hand that "only in case the
prosecution, which itself controls the seizing ocials, knows that it cannot prot 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 ocer or private

person may without a warrant, arrest a person: Cdpr

(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 oense 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 nal judgment or
temporarily conned 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 conne 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 oense, (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 ocers themselves. There was
apparently no oense that had just been committed or was being actually
committed or at least being attempted by Mengote in their presence.

The Solicitor General submits that the actual existence of an oense was not
necessary as long as Mengote's acts "created a reasonable suspicion on the part of
the arresting ocers and induced in them the belief that an oense had been
committed and that the accused-appellant had committed it." The question is, What
oense? What oense 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 dierent 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 ocers, as the
prosecution suggests, it has nevertheless not been shown what their suspicion was
all about. In fact, the policemen themselves testied 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. LLpr

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 ocer 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 ocer 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 dierent because there was nothing to support the arresting
ocers' 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
oense 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 eected 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 oense in the presence of the arresting ocers. 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 satised. The prosecution has not shown that at the time of Mengote's arrest
an oense had in fact just been committed and that the arresting ocers 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 oense, 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 or the rearm 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 rearm 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 ocer arresting a person who has just
committed, is committing, or is about to commit an oense must have
personal knowledge of the fact. The oense must also be committed in is
presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859). (Emphasis
supplied)

xxx xxx xxx

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 rst. 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 oense must be undisputed.
The test of reasonable ground applies only to the identity of the perpetrator.
(Emphasis 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 justication. Parenthetically, it may be observed that under the Revised
Rule 113, Section 5(b), the ocer making the arrest must have personal
knowledge of the ground therefor as stressed in the recent case of People
v. Burgos. (Emphasis 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
stomachache, or if a peace ocer could clamp handcus 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 sucient to sustain his exoneration. Without the evidence
of the rearm 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 rearm) is not sucient 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 le 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 ocio with no expectation of
material reward makes her representation even more commendable.

The Court feels that if the peace ocers 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. LLpr

This should be a lesson to other peace ocers. 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.

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

Footnotes

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.