THIRD DIVISION

March 23, 2015

G.R. No. 184355

ARNULFO a.k.a. ARNOLD JACABAN, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

Assailed in this Petition for Review on Certiorari is the Decision1 dated July 30, 2008 of the Court
ofAppeals (CA), Cebu City, which affirmed in toto the decision of the Regional Trial Court (RTC),
Branch 13, Cebu City, finding petitioner guilty of illegal possession of firearms and ammunitions
under Presidential Decree (PD) No. 1866, as amended by Republic Act (RA) 8294.

An Information was filed with the RTC, Branch 13, Cebu City2 charging petitioner with violation of PD
1866 as amended by RA 8294, to wit:

That on or about the 16111 day of July 1999, at about 12:45 A.M., in the City of Cebu, Philippines,
and within the jurisdiction of this Honorable Court, the said accused, with deliberate intent, did then
and there have in his possession and control the following articles, to wit:

1.One (1) cal. 45 pistol "Llama Gabilondo" with SN515090

2.One (1) stainless magazine for caliber 45 pistol loaded with seven (7) rounds of Live
ammunitions for caliber .45

3.Three (3) short magazines for caliber 5.56 mm containing fifty-nine rounds of live ammos

4.Two (2) long magazines for caliber 5.56 mm containing fifty-five (55) rounds of live ammos

5.One (1) Bandoler for caliber 5.56 mm

6.One (1) bullet [links] for caliber 7.62 mm with twenty-eight (28) rounds of live ammos for
caliber 7.62 mm

7.One (1) bullet clips for caliber 30 M1 Garrand Rifle containing eight (8) rounds of live
ammos

8.One (1) plastic sachet containing five (5) rounds of live ammos for caliber 5.56 mm

9.Six (6) rounds live ammos for caliber 7.62 mm

10.One (1) pair Upper Handguard for caliber 5.56 mm M16 rifle

11.One (1) damage carrying handle for caliber 5.56 rifle.

without first securing the necessary license/permit issued therefor from any competent authority.
Contrary to law.3

On July 19, 1999, petitioner was arraigned and pleaded not guilty to the charge.4

Trial on the merits ensued.

The facts, as found by the Court of Appeals, are as follows:

Evidence for the prosecution established that on July 15, 1999, Police Senior Inspector Ipil H.
Dueñas (P/SInsp. Dueñas) of the now defunct Presidential Anti-Organized Crime Task Force
(PAOCTF) filed an Application for Search Warrant before Branch 22 of the RTC, Cebu City, to
search the premises of [appellant's] residence at J. Labra St., Guadalupe, Cebu City and seize the
following items.

One (1) 7.62 cal M-14 Rifle;

Two (2) 5.56 mm M16 Armalite Rifle;

One (1) 12 gauge Shotgun;

One (1) .45 cal. Pistol;

One (1) .9 mm cal. Pistol

A Search Warrant was then immediately issued to the applicant by Judge Pampio A. Abarintos.

At about 12:45 in the morning of July 16, 1999, the search warrant was implemented by P/S Insp.
Dueñas as the team leader, SPO2 Eric Mendoza, SPO2 Eric Abellana. PO1 Allan Jalagpas, PO3
Epifania Manila Sarte and other members of the PAOCTF. Before reaching appellant's house, the
policemen invited three (3) barangay tanods from Guadalupe's Barangay outpost to accompany
them to the house of the appellant.

Upon arrival to appellant's house, SPO2 Abellana served the search warrant to appellant who was
just inside the house together with his wife and other ladies. Upon informing appellant of the search
1awp++i1

warrant, he became angry and denied having committed any illegal activity. P/SInsp. Dueñas
assured appellant that he had nothing to worry about if the PAOCTF would not find anything.

The team proceeded to search the living room in the presence of three tanods and the appellant
himself. The team continued to search the room where SPO2 Abellana found a calibre .45 placed in
the ceiling. Appellant, who was at the living room that time, rushed to the room and grappled with
SPO2 Abellana but failed to get hold of the gun.

After an exhaustive search was done, other firearms and ammunitions were recovered from the
searched premises. An inventory was made at the living room of appellant in the presence of
appellant himself, the barangay tanods and other persons present during the search. After appellant
and the witnesses signed the inventory receipt, the team proceeded back to their office with
appellant and the confiscated items.

Police Officer IV Dionisio V. Sultan, Chief Clerk of the Firearms and Explosives Division of the
Philippine National Police-Visayas (FED PNP-Visayas), testified that he prepared a certification
dated April 29, 2002. Based on their office's master, appellant is not licensed to possess any kind of
firearm or ammunition.
For the defense, they presented witness Felipenerie Jacaban, older sister of the appellant, who
testified as to her presence during the conduct of the search. According to Felipenerie, at about
12:45 in the morning of July 16, 1999, policemen conducted a raid in the house of Gabriel Arda
(uncle of appellant). The policemen who implemented the warrant were looking for his brother,
herein appellant, so she went to appellant's house and informed him that a raid was conducted at
their uncle's house and policemen were looking for him. When appellant arrived at his uncle's house,
policemen searched around the house and a pistol was subsequently recovered. Felipenerie claims
that the recovered pistol was allegedly pledged by a policeman to her father. She also testified that
appellant never made any protest and merely observed the proceeding.5

On July 12, 2005, the RTC rendered its Decision6 convicting petitioner of the crime charged, the
dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered finding ACCUSED ARNULFO a.k.a. ARNOLD

JACABAN GUILTY of the crime of violation of PD 1866, as amended by RA 8294 and sentences
him to a penalty of imprisonment of from SIX (6) YEARS AND ONE (1) DAY of prision mayor, as
minimum to SIX (6) YEARS AND EIGHT (8) MONTHS, as maximum, plus fine in the amount of
P30,000.

With cost against the accused.

SO ORDERED.7

In so ruling, the RTC found that the prosecution had established all the elements of the crime
charged. Petitioner was in possession of the firearm, ammunitions and other items with intent to
possess the same as they were found inside his house; and he had no license or permit to possess
the same from any competent authority. The RTC did not give credence to petitioner’s claim that he
is not the owner of the house but his uncle, Gabriel Arda, as the latter did not testify at all and was
not in the house at the time of the raid. It was petitioner and his wife who were at the house at 12:45
a.m. of July 16, 1999; and that petitioner did not protest his arrest.

Petitioner appealed his conviction to the CA. After the respective briefs had been filed, the case was
submitted for decision.

On July 30, 2008, the CA issued its assailed Decision which affirmed in toto the RTC decision.

The CA agreed with the RTC’s conclusion that the elements of the crime charged were duly proved
by the prosecution. Anent petitioner’s claim of the alleged discrepancy in the testimony of PO3 Sarte
on the time the raid was conducted, the CA found the same to be minor and did not damage the
essential integrity of the prosecution’s evidence in its material whole; and that such discrepancy was
explained by PO3 Sarte in her testimony.

Hence, this petition for review filed by petitioner.

Petitioner argues that the RTC decision finding him guilty of the crime charged is premised on its
erroneous conclusion that he is the owner the house where the unlicensed firearms and
ammunitions were found. He reiterated his claim that there was discrepancy in the testimony of PO3
Sarte as to the time the raid was conducted.

As a rule, only questions of law may be raised in a petition for review under Rule 45 of the Rules of
Court.8 As such, we are not duty-bound to analyze and weigh all over again the evidence already
considered in the proceedings below. The findings of facts by a trial court, when affirmed by the
Court of Appeals, are binding on the Supreme Court.9 This rule, however, is not without
exceptions.10 However, petitioner failed to show that his case falls under any of the exceptions.
Section 1 of PD 1866, as amended by RA 8294, provides:

Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or

Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. - ….....

The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000.00)
shall be imposed if the firearm is classified as high powered firearm which includes those with bores
bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, 45 and also lesser
calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum
and other firearms with firing capability of full automatic and by burst of two or three: Provided,
however,

That no other crime was committed by the person arrested.

The essential elements in the prosecution for the crime of illegal possession of firearms and
ammunitions are: (1) the existence of subject firearm; and, (2) the fact that the accused who
possessed or owned the same does not have the corresponding license for it.11 The unvarying rule is
that ownership is not an essential element of illegal possession of firearms and ammunition.12 What
the law requires is merely possession, which includes not only actual physical possession, but also
constructive possession or the subjection of the thing to one’s control and management.13

Once the prosecution evidence indubitably points to possession without the requisite authority or
license, coupled with animus possidendi or intent to possess on the part of the accused, conviction
for violation of the said law must follow. Animus possidendi is a state of mind, the presence or
determination of which is largely dependent on attendant events in each case. It may be inferred
from the prior or contemporaneous acts of the accused, as well as the surrounding circumstances.14

Here, the prosecution had proved the essential elements of the crime charged under PD 1866 as
amended by RA 8294. The existence of the seized firearm and the ammunitions was established
through the testimony of PO3 Sarte. There was an inventory of the items seized which was made in
the presence of the petitioner and the three barangay tanods who all voluntarily signed the inventory
receipt. PO3 Sarte identified all the seized items in open court.

It was convincingly proved that petitioner had constructive possession of the gun and the
ammunitions, coupled with the intent to possess the same. Petitioner's act of immediately rushing
from the living room to the room where SPO2 Abellana found a calibre .45 and grappled with the
latter for the possession of the gun proved that the gun was under his control and management. He
also had the animus possidendi or intent to possess the gun when he tried to wrest it from SPO2
Abellana.

Petitioner's lack of authority to possess the firearm was established by the testimony of Police
Officer IV Dionisio V. Sultan, Chief Clerk of the Firearms and Explosive Division of the Philippine
National Police-Visayas (FED-PNP- Visayas) that petitioner is not licensed to possess any kind of
firearm or ammunition based on the FED-PNP master list.

Anent petitioner's argument that the house where the firearm was found was not owned by him is not
persuasive. We quote with approval what the RTC said in debunking such issue which was affirmed
by the CA, thus:

If the accused is not really the owner of the house where the firearm, ammunitions and other items
were found, he should have protested his arrest. But in the instant case Felipenieri (sic) Jacaban
said that there was no protest at all.
If the accused is not really the owner of the house raided by the police officers, what was he and his
wife doing there at 12:45 in the morning?

The defense asserted that the house of the accused was already demolished when the road fronting
it was widened. But the defense failed to present the tax declaration covering the said house before
it was demolished.

xxx xxx xxx

Gabriel Arda, the alleged owner of the house did not testify. He was allegedly suffering from
hypertension. The defense, however, did not file a motion to take his deposition.

Felipenieri likewise testified that at the time of the raid, the owner of the house was not present. Her
testimony bolsters the fact that Gabriel Arda is not really the owner of the house where the raid was
conducted.15

Even assuming that petitioner is not the owner of the house where the items were recovered, the
ownership of the house is not an essential element of the crime under PD 1866 as amended. While
petitioner may not be the owner, he indeed had control of the house as shown by the following
circumstances: (1) When the PAOCTF went to the house to serve the search warrant, petitioner was
very angry and restless and even denied having committed any illegal act, but he was assured by
P/SInsp. Dueñas that he has nothing to answer if they would not find anything, thus, he consented to
the search being conducted; (2) while the search was ongoing, petitioner merely observed the
conduct of the search and did not make any protest at all; and

(3) petitioner did not call for the alleged owner of the house.

As to the alleged discrepancy in PO3 Sarte's testimony as to the time the search was conducted, we
agree with the CA when it found:

Appellant likewise questions the discrepancies in the testimony of prosecution witness PO3 Epifania
Sarte. Appellant contends that PO3 Sarte could not even testify correctly as to the time the raid was
conducted. According to appellant, the established fact on records shows that it was conducted past
midnight of July 16, 1999 while witness PO3 Sarte asserted that it was conducted at 12:45 high
noon of said date.

It bears stressing that minor discrepancies might be found in her testimony, but this does not
damage the essential integrity of the evidence in its material whole, nor should it reflect adversely on
the witness' credibility as it erases suspicion that the same was perjured. Here, prior testimony of
PO3 Sarte as to the time of the raid is considered only a trivial matter which is not even enough to
destroy or discredit her credibility. Besides, she was able to explain her mistake when she previously
stated that the search was conducted at 12:45 noon of July 16, 1999 instead of 12:45 in the morning
as she was hungry when she first testified. The record likewise does not reveal that PO3 Sarte was
actuated by ill-motive in so testifying against appellant. Thus, when there is nothing to indicate that a
witness was actuated by improper motives, her positive declarations on the witness stand, made
under solemn oath, deserve full faith and credence.16

The RTC sentenced petitioner to an imprisonment of six (6) years and one (1) day of prision mayor,
as minimum, to six (6) years and eight (8) months, as maximum, plus fine in the amount of
P30,000.00. The CA upheld the RTC. Under PD 1866, as amended by RA 8294, the penalty for
illegal possession of firearms classified as high powered, like cal. 45, is prision mayor minimum and
a fine of P30,000.00. Applying Article 64 of the Revised Penal Code, the maximum period of the
imposable penalty cannot exceed prision mayor minimum in its medium period, there being no
mitigating or aggravating circumstance, i.e., six (6) years, eight (8) months and one (1) day to seven
(7) years and four (4) months. The minimum period, as provided in the Indeterminate Sentence Law,
shall be within the range of prision correccional in its maximum period, i.e., four (4) years, two (2)
months and one (1) day to six (6) years, the penalty next lower in degree to prision
mayor minimum.17 Thus, the minimum penalty imposable must be modified. Albeit, PD 1866, as
amended by RA 8294, is a malum prohibitum and that the Revised Penal Code is generally not
applicable, it has been held that when a special law, which is a malum prohibitum, adopts the
nomenclature of the penalties in the Revised Penal Code, the latter law shall apply.18

While in 2013, RA 10951 entitled "An Act Providing for a Comprehensive Law on Firearms and
Ammunitions and Providing Penalties for Violation Thereof" took effect, the same finds no
application in this case as the law provides for stiffer penalties which is not at all favorable to the
accused.

WHEREFORE, in view of all the foregoing, the Decision of the Court of Appeals, dated July 30,
2008, is AFFIRMED WITH MODIFICATION. Petitioner is sentenced to suffer the indeterminate
penalty of imprisonment ranging from SIX (6) YEARS of prision correccional in its maximum period,
as minimum, to SIX (6) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of prision mayor minimum in
its medium period, as maximum, and to pay a fine of P30,000.00.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

MARTIN S. VILLARAMA, JR. BIENVENIDO L. REYES

Associate Justice Associate Justice

FRANCIS H. JARDELEZA
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P.A. SERENO

Chief Justice
Footnotes

1
Penned by Associate Justice Fiorito S. Macalino, with Associate Justices Antonio L.
Villamor and Stephen C. Cruz, concurring; rollo, pp. 21-30;

2
Docketed as Criminal Case No. CBU -51111.

3
Id. at 22.

4
Id.

5
Id. at 23-25. (Citations omitted)

6
Id. at 31-38; Per Judge Meinrado P. Paredes.

7
Id. at 38.

8
Salcedo v. People, 400 Phil. 1302, 1308 (2000).

9
Id. at 1304.

10
(1) When the factual findings of the Court of Appeals and the trial court are contradictory;

(2)When the conclusion is a findings grounded entirely on speculation, surmises, or

conjectures;

(3)When the inference made by the Court of Appeals from its findings of fact is
manifestly mistaken, absurd, or impossible;

(4)When there is grave abuse of discretion in the appreciation of facts;

(5)When the appellate court, in making its findings, goes beyond the issues of the
case, and such findings are contrary to the admissions of both appellant and
appellee;

(6)When the judgment of the Court of Appeals is premised on a misapprehension of

facts;

(7)When the Court of Appeals failed to notice certain relevant facts which, if properly
considered, would justify a different conclusion;

(8)When the findings of fact are themselves conflicting;

(9)When the findings of fact are conclusions without citation of the specific evidence
on which they are based; and

(10)When the findings of fact of the Court of Appeals are premised on the absence of
evidence but such findings are contradicted by the evidence on record (Id. at 1308-
1309).
 Evangelista v. People, 634 Phil. 207, 227 (2010); People v. Eling, G.R. No. 178546, April
11

30, 2008, 553 SCRA 724, 738; Gonzales v. Court of Appeals, 343 Phil. 297, 305 (1997).

12
Gonzales v. Court of Appeals, supra.

13
Id.

14
People v. Lian, 325 Phil. 881, 889 (1996).

15
Rollo, p. 27.

16
Id. at 28.

17
Cupcupin v. People, 440 Phil. 712, 733 (2002).

18
People v. Simon, G.R. No. 93028, July 29, 1994, 234 SCRA 555, 574.

ECOND DIVISION

G.R. No. 221991, August 30, 2017

JOSELITO PERALTA Y ZARENO, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERLAS-BERNABE, J.:

Before the Court is a petition for review on certiorari1 filed by petitioner Joselito Peralta y Zareno (Peralta)
assailing the Decision2 dated May 29, 2015 and the Resolution3 dated December 8, 2015 of the Court of
Appeals (CA) in CA-G.R. CR No. 35193, which affirmed the Decision4 dated July 31, 2012 of the Regional
Trial Court of Dagupan City, Branch 44 (RTC) in Crim. Case No. 2008-0659-D finding him guilty beyond
reasonable doubt of illegal possession of firearms and ammunition under Section 1 of Presidential Decree
No. (PD) 1866,5 as amended by Republic Act No. (RA)8294.6

The Facts

The instant case arose from an Information7 dated November 20, 2008 charging Peralta of illegal possession
of firearms and ammunition, defined and penalized under PD 1866, as amended, the accusatory portion of
which reads: chanRoble svirtual Lawlib ra ry

That on or about the 18th day of November, 2008, in the City of Dagupan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, JOSELITO PERALTA y Zareno, did then and
there, willfully, unlawfully and criminally, have in his possession, custody, and control one (1) cal. 45 with
Serial No. 4517488 with magazine with five (5) live ammunitions, without authority to possess the same.

Contrary to PD 1866, as amended by RA 8294.8

The prosecution alleged that at around 11 o'clock in the evening of November 18, 2008, a team consisting of
Police Officer 3 Christian A. Carvajal (PO3 Carvajal), one Police Officer Lavarias, Police Officer 2 Bernard
Arzadon (PO2 Arzadon), and Police Officer 3 Lucas Salonga (PO3 Salonga) responded to a telephone call
received by their desk officer-on-duty that there was a man firing a gun at the back of the PLDT Building in
Pantal District, Dagupan City.9 Upon arrival thereat, the police officers saw two (2) men walking, later
identified as Peralta and his companion, Larry Calimlim (Calimlim), holding a gun and a knife
respectively.10 Upon seeing the police officers, the men became uneasy, which prompted the police officers
to swoop in. Upon apprehension, they recovered a caliber .45 pistol with Serial Number 4517488 containing
a magazine with five (5) live ammunitions from Peralta and a knife from Calimlim.11The men were then
brought to the Region I Medical Center in Dagupan City, and later, to the community precinct for paraffin
and gun powder residue test. Meanwhile, the pistol and the magazine with live ammunitions were endorsed
to the duty investigator.12

In his defense, Peralta denied the accusation against him and presented a different narration of facts.
According to him, he was riding a motorcycle with Calimlim when they were flagged down by the police
officers. While admitting that the latter recovered a knife from Calimlim, Peralta vigorously denied having a
firearm with him, much less illegally discharging the same.13 He pointed out that it was impossible for him to
carry a gun at the time and place of arrest since they were near the barangay hall and the respective
residences of Police Officer Salonga and mediaman Orly Navarro.14 Further, Peralta averred that upon arrival
at the police station, he was forced to admit possession of the gun allegedly recovered from him, and that
they were subjected to a paraffin test but were not furnished with copies of the results thereof.15 Finally,
Peralta claimed that he and Calimlim were merely framed up, after his brother who operated a "hataw"
machine went bankrupt and stopped giving "payola" to the police officials.16

The RTC Ruling

In a Decision17 dated July 31, 2012, the RTC found Peralta guilty beyond reasonable doubt of the crime
charged, and accordingly, sentenced him to suffer the penalty of imprisonment for a period of six (6) years
and one (1) day of prision mayor, as minimum, to eight (8) years of prision mayor, as maximum, and to pay
a fine of P30,000.00.18

The RTC found that the prosecution had established the existence of the elements of the crime charged,
considering that PO3 Carvajal positively identified him walking at the Pantal District, Dagupan City carrying
a firearm and that he had no license to carry the same, as per the Certification19 issued by the Firearms and
Explosives Office in Camp Crame, Quezon City.20

Aggrieved, Peralta appealed21 to the CA.

The CA Ruling

In a Decision22 dated May 29, 2015, the CA affirmed Peralta's conviction in toto.23 It concurred with the
RTC's finding that the prosecution had established all the elements of the crime charged, namely, the
existence of firearm and ammunitions, and the lack of the corresponding license/s by the person possessing
or owning the same. In this relation, the CA held that the police officers conducted a valid warrantless arrest
on Peralta under the plain view doctrine, considering that the latter was walking at the Pantal District
carrying a firearm in full view of the arresting policemen, who arrived at the scene in response to a call they
received at the police station.24

Further, for lack of substantiation, it did not lend any credence to Peralta's claim that he was only set up by
the police officers as revenge for his brother's failure to give "payola" to the police officials in connection
with his operation of the "hataw" machine.25 Finally, the CA ruled that the results of the paraffin test were
immaterial to Peralta's conviction of the crime charged since what is being punished by the law is the
possession of a firearm and ammunitions without any license or permit to carry the same.26

Undaunted, Peralta moved for reconsideration,27 which was, however, denied in a Resolution28dated
December 8, 2015; hence, this petition.

The Issue Before the Court

The sole issue for the Court's Resolution is whether or not the CA correctly upheld Peralta's conviction for
Illegal Possession of Firearm and Ammunition.

The Court's Ruling

The petition is without merit.

At the outset, the Court reiterates that Peralta was charged with illegal possession of firearms and
ammunition for carrying a .45 caliber pistol with a magazine containing five (5) live ammunitions, a crime
defined and penalized under Section 1 of PD 1866, as amended by RA 8294, pertinent portions of which
read:chanRob lesvi rtual Lawli bra ry

Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or

Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. - The penalty of
xxx shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or
possess any xxx firearm, xxx part of firearm, ammunition, or machinery, tool or instrument used or
intended to be used in the manufacture of any firearm or ammunition xxx.
The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be
imposed if the firearm is classified as high powered firearm which includes those with bores bigger in
diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered
firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms
with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime
was committed by the person arrested.

xxxx
The corpus delicti in the crime of illegal possession of firearms is the accused's lack of license or permit to
possess or carry the firearm, as possession itself is not prohibited by law. To establish the corpus delicti, the
prosecution has the burden of proving that: (a) the firearm exists; and (b) the accused who owned or
possessed it does not have the corresponding license or permit to possess or carry the same.29

In this case, the prosecution had proven beyond reasonable doubt the existence of the aforesaid elements,
considering that: (a) the police officers positively identified Peralta as the one holding a .45 caliber pistol
with Serial Number 4517488 with magazine and live ammunitions, which was seized from him and later on,
marked, identified, offered, and properly admitted as evidence at the trial; and (b) the Certification30 dated
August 10, 2011 issued by the Firearms and Explosives Office of the Philippine National Police which
declared that Peralta "is not a licensed/registered firearm holder of any kind and calibre, specifically Caliber
.45 Pistol, make (unknown) with Serial Number 4517488 per verification from the records of this office as of
this date."31

That the prosecution failed to present the results of the paraffin test made on Peralta is inconsequential
since it is not indicative of his guilt or innocence of the crime charged. In People v. Gaborne,32 the Court
discussed the probative value of paraffin tests, to wit: chanRoblesvirtual Lawli bra ry

Paraffin tests, in general, have been rendered inconclusive by this Court. Scientific experts concur in the
view that the paraffin test was extremely unreliable for use. It can only establish the presence or absence of
nitrates or nitrites on the hand; however, the test alone cannot determine whether the source of the nitrates
or nitrites was the discharge of a firearm. The presence of nitrates should be taken only as an indication of a
possibility or even of a probability but not of infallibility that a person has fired a gun, since nitrates are also
admittedly found in substances other than gunpowder.33
Thus, the Court finds no reason to deviate from the factual findings of the trial court, as affirmed by the CA,
as there is no indication that it overlooked, misunderstood or misapplied the surrounding facts and
circumstances of the case. In fact, the trial court was in the best position to assess and determine the
credibility of the witnesses presented by both parties, and hence, due deference should be accorded to the
same.34

In an attempt to absolve himself from criminal liability, Peralta questioned the legality of the warrantless
arrest and subsequent search made on him. According to him, there was no reason for the police officers to
arrest him without a warrant and consequently, conduct a search incidental thereto. As such, the firearm
and ammunitions purportedly recovered from him are rendered inadmissible in evidence against him.35

Such contention is untenable.

Section 2, Article III36 of the 1987 Constitution mandates that a search and seizure must be carried out
through or on the strength of a judicial warrant predicated upon the existence of probable
cause, absent which, such search and seizure becomes "unreasonable" within the meaning of
said constitutional provision. To protect the people from unreasonable searches and seizures, Section 3
(2), Article III37 of the 1987 Constitution provides that evidence obtained from unreasonable searches
and seizures shall be inadmissible in evidence for any purpose in any proceeding. In other words,
evidence obtained and confiscated on the occasion of such unreasonable searches and seizures are deemed
tainted and should be excluded for being the proverbial fruit of a poisonous tree.38

One of the recognized exceptions to the need for a warrant before a search may be effected is a search
incidental to a lawful arrest. In this instance, the law requires that there first be a lawful arrest
before a search can be made - the process cannot be reversed.39

A lawful arrest may be effected with or without a warrant. With respect to the latter, the parameters of
Section 5, Rule 113 of the Revised Rules of Criminal Procedure should - as a general rule - be complied
with:chanRob lesvi rtual Lawl ibra ry

Section 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 just been committed and he has probable cause to believe based on personal
knowledge of facts or circumstances 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 is 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) above, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with
Section 7 of Rule 112.
The aforementioned provision identifies three (3) instances when warrantless arrests may be lawfully
effected. These are: (a) an arrest of a suspect in flagrante delicto; (b) an arrest of a suspect where, based
on personal knowledge of the arresting officer, there is probable cause that said suspect was the perpetrator
of a crime which had just been committed; and (c) an arrest of a prisoner who has escaped from custody
serving final judgment or temporarily confined during the pendency of his case or has escaped while being
transferred from one confinement to another.40

In warrantless arrests made pursuant to Section 5 (a), Rule 113, two (2) elements must concur, namely:
(a) the person to be arrested must execute an overt act indicating that he has just committed, is actually
committing, or is attempting to commit a crime; and (b) such overt act is done in the presence or within the
view of the arresting officer. On the other hand, Section 5 (b), Rule 113 requires for its application that at
the time of the arrest, an offense had in fact just been committed and the arresting officer had personal
knowledge of facts indicating that the accused had committed it.41

In both instances, the officer's personal knowledge of the fact of the commission of an offense is
essential. Under Section 5 (a), Rule 113 of the Revised Rules of Criminal Procedure, the officer himself
witnesses the crime; while in Section 5 (b) of the same, he knows for a fact that a crime has just been
committed.42

In this case, records show that upon the police officers' arrival at Pantal District, Dagupan City, they saw
Peralta carrying a pistol, in plain view of everyone. This prompted the police officers to confront Peralta
regarding the pistol, and when the latter was unable to produce a license for such pistol and/or a permit to
carry the same, the former proceeded to arrest him and seize the pistol from him. Clearly, the police officer
conducted a valid in flagrante delicto warrantless arrest on Peralta, thus, making the consequent search
incidental thereto valid as well. At this point, it is well to emphasize that the offense of illegal possession of
firearms is malum prohibitum punished by special law and, in order that one may be found guilty of a
violation of the decree, it is sufficient that the accused had no authority or license to possess a firearm,
and that he intended to possess the same, even if such possession was made in good faith and without
criminal intent.43 In People v. PO2 Abriol,44 the court ruled that the carrying of firearms and ammunition
without the requisite authorization - a clear violation of PD 1866, as amended - is enough basis for the
conduct of a valid in flagrante delicto warrantless arrest.45 Given these, Peralta can no longer question the
validity of his arrest and the admissibility of the items seized from him on account of the search incidental to
such arrest.

As to the proper penalty to be imposed on Peralta, the courts a quo en-ed in sentencing him to suffer the
penalty of imprisonment for a period of six (6) years and one (1) day of prision mayor, as minimum, to
eight (8) years of prision mayor, as maximum. As may be gleaned from Section 1 of PD 1866, as amended,
the prescribed penalties for the crime Peralta committed is "prision mayor in its minimum period," or
imprisonment for a period of six (6) years and one (1) day up to eight (8) years, and a fine of P30,000.00.
Notably, while such crime is punishable by a special penal law, the penalty provided therein is taken from
the technical nomenclature in the Revised Penal Code (RPC). In Quimvel v. People,46 the Court succinctly
discussed the proper treatment of prescribed penalties found in special penal laws vis-a-vis Act No.
4103,47 otherwise known as the Indeterminate Sentence Law, viz.: chanRoble svirtual Lawlib rary

Meanwhile, Sec. 1 of Act No. 4103, otherwise known as the Indeterminate Sentence Law (ISL), provides
that if the offense is ostensibly punished under a special law, the minimum and maximum prison term of the
indeterminate sentence shall not be beyond what the special law prescribed. Be that as it may, the Court
had clarified in the landmark ruling of People v. Simon that the situation is different where although the
offense is defined in a special law, the penalty therefor is taken from the technical nomenclature in the RPC.
Under such circumstance, the legal effects under the system of penalties native to the Code would also
necessarily apply to the special law.48
Otherwise stated, if the special penal law adopts the nomenclature of the penalties under the RPC, the
ascertainment of the indeterminate sentence will be based on the rules applied for those crimes punishable
under the RPC.49
Applying the foregoing to the instant case, the Court deems it proper to adjust the indeterminate period of
imprisonment imposed on Peralta to four (4) years, nine (9) months, and eleven (11) days of prision
correccional, as minimum, to six (6) years, eight (8) months, and one (1) day of prision mayor, as
maximum.50 Finally, the imposition of fine in the amount of P30,000.00 stands.

WHEREFORE, the petition is DENIED. The Decision dated May 29, 2015 and the Resolution dated
December 8, 2015 of the Court of Appeals in CA-G.R. CR No. 35193, which upheld the Decision dated July
31, 2012 of the Regional Trial Court of Dagupan City, Branch 44 in Crim. Case No. 2008-0659-D finding
petitioner Joselito Peralta y Zareno (petitioner) GUILTY beyond reasonable doubt of Illegal Possession of
Firearms and Ammunition, defined and penalized under Section 1, paragraph 2 of PD 1866, as amended by
RA 8294, are hereby AFFIRMED with MODIFICATION, sentencing petitioner to suffer the penalty of
imprisonment for an indeterminate period of four (4) years, nine (9) months, and eleven (11) days
of prision correccional, as minimum, to six (6) years, eight (8) months, and one (1) day of prision mayor, as
maximum, and to pay a fine in the amount of P30,000.00.

SO ORDERED.

Carpio,*Acting C. J., (Chairperson), Peralta, Caguioa, and Reyes, Jr., JJ., concur.

Endnotes:

*
Acting Chief Justice per Special Order No. 2475 dated August 29, 2017.

Rollo, pp. 12-29.

1

2
Id. at 33-50. Penned by Associate Justice Amy C. Lazaro-Javier with Associate Justices Celia C. Librea-
Leagogo and Melchor Q.C. Sadang concurring.

3
Id. at 52.

4
Id. at 69-72. Penned by Judge Genoveva Coching-Maramba.

5
Entitled "CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE, DEALING IN,
ACQUISITION OR DISPOSITION, OF FIREARMS, AMMUNITION OR EXPLOSIVES OR INSTRUMENTS USED IN
THE MANUFACTURE OF FIREARMS, AMMUNITION OR EXPLOSIVES, AND IMPOSING STIFFER PENALTIES FOR
CERTAIN VIOLATIONS THEREOF AND FOR RELEVANT PURPOSES," approved on June 29, 1983.

6
Entitled "AN ACT AMENDING THE PROVISIONS OF PRESIDENTIAL DECREE NO. 1866, AS AMENDED,
ENTITLED 'CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE, DEALING IN,
ACQUISITION OR DISPOSITION OF FIREARMS, AMMUNITION OR EXPLOSIVES OR INSTRUMENTS USED IN
THE MANUFACTURE OF FIREARMS, AMMUNITION OR EXPLOSIVES, AND IMPOSING STIFFER PENALTIES FOR
CERTAIN VIOLATIONS THEREOF AND FOR RELEVANT PURPOSES," approved on June 6, 1997.

7
Records, pp. 1-2.

8
Id. at 1.

Rollo, p. 35.
9

10
Id.

11
Id. at 69.

12
Id. at 35-36. See also id. at 69-70.

13
Id. at 36-37.

14
Id. at 70.

15
Id. at 37 and 70.

16
Id.

17
Id. at 69-72.
18
Id. at 72.

19
Records, p. 127. Signed by Police Chief Inspector Rodrigo Benedicto H. Sarmiento, Jr.

20
See id. at 71.

21
See Brief for the Accused-Apellant dated July 30, 2014. Rollo, pp. 54-68.

22
Id. at 33-50.

23
See id. at 49.

24
See id. at 40-43.

25
Id. at 42.

26
Id. at 45.

27
Dated June 30, 2015. Id. at 86-93.

28
Id. at 52.

Sayco v. People, 571 Phil. 73, 82-83 (2008); citations omitted.

29

30
Records, p. 127.

31
Id.

32
See G.R. No. 210710, July 27, 2016.

33
See id, citing People v. Cajumocan, 474 Phil. 349, 357 (2004).

34
See People v. Matibag, 757 Phil. 286, 293 (2015), citing Almojuela v. People, 734 Phil. 636, 651 (2014).

35
See rollo, p. 21.

36
Section 2, Article III of the 1987 constitution states:chanRoblesvi rt ualLawl ibra ry

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.
37
Section 3 (2), Article III of the 1987 Constitution states: chanRob lesvi rtual Lawli bra ry

Sec. 3. x x x.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose
in any proceeding.
38
See Sindac v. People, G.R. No. 220732, September 6, 2016, citing People v. ManagoG.R. No. 212340,
August 17, 2016.

39
See id.

40
See id., citing Comerciante v. People, 764 Phil. 627, 634-635 (2015).

41
See id.

42
See id.

43
See Fajardo v. People, 654 Phil. 184, 203 (2011), citing People v. De Gracia, G.R. Nos. 102009-10, July 6,
1994, 233 SCRA 716, 726-727.

44
419 Phil. 609 (2001).

45
See id. at 635-636; citation omitted.
46
See G.R. No. 214497, April 18, 2017.

47
Entitled "AN ACT TO PROVIDE FOR AN INDETERMINATE SENTENCE AND PAROLE FOR ALL PERSONS
CONVICTED OF CERTAIN CRIMES BY THE COURTS OF THE PHILIPPINE ISLANDS; TO CREATE A BOARD OF
INDETERMINATE SENTENCE AND TO PROVIDE FUNDS THEREFOR; AND FOR OTHER PURPOSES," approved
on December 5, 1993. See Quimvel v. People, supra note 46; citation omitted.

49
See Mabunot v. People, G.R. No. 204659, September 19, 2016, citing People v. Simon, G.R. No. 93028,
July 29, 1994, 234 SCRA 555, 580-581.

50
See Articles 64 and 76 of the Revised Penal Code.

SECOND DIVISION

G.R. No. 209387, January 11, 2016

ERWIN LIBO-ON DELA CRUZ, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

LEONEN, J.

Routine baggage inspections conducted by port authorities, although done without search warrants, are not
unreasonable searches per se. Constitutional provisions protecting privacy should not be so literally
understood so as to deny reasonable safeguards to ensure the safety of the traveling public.

For resolution is a Petition for Review on Certiorari1 assailing the Decision2 dated September 28, 2012 and
the Resolution3 dated August 23, 2013 of the Court of Appeals, Cebu City.4 The Court of Appeals
affirmed5 the trial court's Judgment6 finding petitioner Erwin Libo-on Dela Cruz (Dela Cruz) guilty beyond
reasonable doubt of possessing unlicensed firearms under Commission on Elections Resolution No. 77647in
relation to Section 2618 of Batas Pambansa Big. 8819 during the 2007 election period.10

Dela Cruz was an on-the-job trainee of an inter-island vessel. He frequently traveled, "coming back and
forth taking a vessel."12 At around 12:00 noon of May 11, 2007, Dela Cruz was at a pier of the Cebu
Domestic Port to go home to Iloilo.13While buying a ticket, he allegedly left his bag on the floor with a
porter.14 It took him around 15 minutes to purchase a ticket.15

Dela Cruz then proceeded to the entrance of the terminal and placed his bag on the x-ray scanning machine
for inspection.16 The operator of the x-ray machine saw firearms inside Dela Cruz's bag.17

Cutie Pie Flores (Flores) was the x-ray machine operator-on-duty on May 11, 2007.18 She saw the
impression of what appeared to be three (3) firearms inside Dela Cruz's bag.19 Upon seeing the suspected
firearms, she called the attention of port personnel Archie Igot (Igot) who was the baggage inspector then.20

Igot asked Dela Cruz whether he was the owner of the bag.21 Dela Cruz answered Igot in the affirmative and
consented to Igot's manual inspection of the bag.22

"Port Police Officer Adolfo Abregana [(Officer Abregana)] was on duty at the terminal of the Cebu Domestic
Port in Pier 1-G when his attention was called by ... Igot."23 Igot told Officer Abregana that there were
firearms in a bag owned by a certain person.24 Igot then pointed to the person.25 That person was later
identified as Dela Cruz.26

Dela Cruz admitted that he was owner of the bag.27 The bag was then inspected and the following items
were found inside: three (3) revolvers; NBI clearance; seaman's book; other personal items; and four (4)
live ammunitions placed inside the cylinder.28 When asked whether he had the proper documents for the
firearms, Dela Cruz answered in the negative.29

Dela Cruz was then arrested and informed of his violation of a crime punishable by law.30 He was also
informed of his constitutional rights.31
In the Information dated November 19, 2003, Dela Cruz was charged with violation of Republic Act No. 8294
for illegal possession of firearms.32 chan roblesv irt uallawl ibra ry

Criminal Case No. CBU -80084

That on or about the 11th day of May 2007, at about 12:45 p.m. in the City of Cebu, Philippines, and within
the jurisdiction of this Honorable Court, the said accused, with the deliberate intent and without being
authorized by law, did then and there possess and carry outside his residence one (1) Cal. 38 Simith [sic] &
Wesson revolver without serial number; one (1) .22 Smith & Wesson Magnum revolver without serial
number; one (1) North American Black Widow magnum revolver without serial number and four rounds of
live ammunitions for cal. 38 without first securing the necessary license to possess and permit to carry from
the proper authorities.

CONTRARY TO LAW.33
cralawlawl ibra ry
ChanRoblesVirt ualawli bra ry

Subsequently, another Information was filed charging Dela Cruz with the violation of Commission on
Elections Resolution No. 7764, in relation to Section 261 of Batas Pambansa Blg. 88134 chan roble svirtuallaw lib rary

Criminal Case No. CBU 80085

That on or about the 11th day of May 2007, at about 12:45 in the afternoon, which is within the election
period for the May 14, 2007 National and Local Elections, in the City of Cebu, Philippines and within the
jurisdiction of this Honorable Court, the said accused, with deliberate intent, did then and there possess and
carry outside his residence the following

One (1) cal. .38 Simith [sic] & Wesson revolver without serial number; One (1) cal. .22 Smith & Wesson
Magnum revolver without serial number; One (1) North American Black Widow magnum revolver without
serial number and four (4) rounds of live ammunitions for cal. 38.

CONTRARY TO LAW.35
cralawlawl ibra ry
ChanRoblesVirt ualawli bra ry

Dela Cruz entered a plea of not guilty to both charges during arraignment.36

After trial, Branch 12 of the Regional Trial Court, Cebu City found Dela Cruz guilty beyond reasonable doubt
of violating the Gun Ban under Commission on Elections Resolution No. 7764, in relation to Section 261 of
Batas Pambansa Blg. 881 in Criminal Case No. CBU 80085.37 Dela Cruz was sentenced to suffer
imprisonment of one (1) year with disqualification from holding public office and the right to suffrage.38

According to the trial court, the prosecution was able to prove beyond reasonable doubt that Dela Cruz
committed illegal possession of firearms.39 It proved the following elements: "(a) the existence of the
subject firearm and (b) the fact that the accused who owned or possessed it does not have the license or
permit to possess the same."40 The prosecution presented the firearms and live ammunitions found in Dela
Cruz's possession.41 It also presented three (3) prosecution witnesses who testified that the firearms were
found inside Dela Cruz's bag.42 The prosecution also presented a Certification that Dela Cruz did not file any
application for license to possess a firearm, and he was not given authority to carry a firearm outside his
residence.43

The trial court also held that the search conducted by the port authorities was reasonable and, thus,
valid44 cha nrob lesvi rtua llawli bra ry

Given the circumstances obtaining here, the court finds the search conducted by the port authorities
reasonable and, therefore, not violative of the accused's constitutional rights. Hence, when the search of the
bag of the accused revealed the firearms and ammunitions, accused is deemed to have been caught
in flagrante delicto, justifying his arrest even without a warrant under Section 5(a), Rule 113 of the Rules of
Criminal Procedure. The firearms and ammunitions obtained in the course of such valid search are thus
admissible as evidence against [the] accused.45
cralawlawl ibra ry
ChanRoblesVi rtua lawlib rary

The trial court did not give credence to Dela Cruz's claim that the firearms were "planted" inside his bag by
the porter or anyone who could have accessed his bag while he was buying a ticket.46 According to the trial
court, Dela Cruz's argument was "easy to fabricate, but terribly difficult to disprove."47 Dela Cruz also did
not show improper motive on the part of the prosecution witnesses to discredit their testimonies.48

The trial court dismissed the case for violation of Republic Act No. 8294.49 It held that "Republic Act No.
8294 penalizes simple illegal possession of firearms, provided that the person arrested committed 'no other
crime.'"50 Dela Cruz, who had been charged with illegal possession of firearms, was also charged with
violating the Gun Ban under Commission on Elections Resolution No. 7764.51

The dispositive portion of the trial court's Consolidated Judgment reads

WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of violation of COMELEC
Resolution No. 7764 in relation to Section 261 of BP Blg. 881 in Criminal Case No. CBU-80085, and hereby
sentences him to suffer an imprisonment for a period of one (1) year, and to suffer disqualification to hold
public office and deprivation of the right to suffrage.

While Criminal Case No. CBU-80084 for Violation of RA 8294 is hereby DISMISSED. Accordingly, the cash
bond posted by accused therein for his provisional liberty is hereby ordered cancelled and released to said
accused.

The subject firearms (Exhs. "H", "I" & "J"), and the live ammunitions (Exhs. "K to K-2"") shall, however,
remain in custodia legis for proper disposition of the appropriate government agency.

SO ORDERED.52 (Emphasis in the original)

cralawlawl ibra ry

On appeal, the Court of Appeals affirmed the trial court's Judgment.53 It held that the defense failed to show
that the prosecution witnesses were moved by improper motive; thus, their testimonies are entitled to full
faith and credit.54 The acts of government authorities were found to be regular.55

The Court of Appeals did not find Dela Cruz's defense of denial meritorious.56 "Denial as a defense has been
viewed upon with disfavor by the courts due to the ease with which it can be concocted."57 Dela Cruz did not
present any evidence "to show that he had authority to carry outside of residence firearms and ammunition
during the period of effectivity of the Gun Ban [during] election time." The prosecution was able to prove
Dela Cruz's guilt beyond reasonable doubt.

The dispositive portion of the assailed Decision provides

WHEREFORE, premises considered, the appeal is hereby DENIED. The assailed January 27, 2010
Consolidated Judgment of the Regional Trial Court (RTC), Branch 12 of Cebu City in Criminal Case CBU-
59434 is hereby AFFIRMED. Costs on accused-appellant.

SO ORDERED.59 (Emphasis in the original)

cralawlawl ibra ry

Dela Cruz filed a Motion for Reconsideration,60 which was denied by the Court of Appeals in its Resolution
dated August 23, 2013.61

Dela Cruz filed this Petition on November 4, 2013.62 In the Resolution63 dated December 9, 2013, this court
required respondent, through the Office of the Solicitor General, to submit its Comment on the Petition.
Respondent submitted its Comment64 on March 6, 2014, which this court noted in the Resolution65 dated
March 19, 2014.

Dela Cruz claims that he was an on-the-job trainee for an inter-island vessel.66 He was "well[-]acquainted
with [the] inspection scheme [at the] ports."67 He would not have risked placing prohibited items such as
unlicensed firearms inside his luggage knowing fully the consequences of such an action.68

According to Dela Cruz, when he arrived at the port on May 11, 2007, he left his luggage with a porter to
buy a ticket.69 "A considerable time of fifteen minutes went by before he could secure the ticket while his
luggage was left sitting on the floor with only the porter standing beside it."70 He claims that someone must
have placed the unlicensed firearms inside his bag during the period he was away from it.71 He was
surprised when his attention was called by the x-ray machine operator after the firearms were detected.72

Considering the circumstances, Dela Cruz argues that there was no voluntary waiver against warrantless
search73 chanro blesvi rt uallawl ibra ry

In petitioner's case, it may well be said that, with the circumstances attending the search of his luggage, he
had no actual intention to relinquish his right against warrantless searches. He knew in all honest belief that
when his luggage would pass through the routine x-ray examination, nothing incriminating would be
recovered. It was out of that innocent confidence that he allowed the examination of his luggage. . . . [H]e
believed that no incriminating evidence wfouldj be found. He knew he did not place those items. But
what is strikingly unique about his situation is that a considerable time interval lapsed, creating an
opportunity for someone else to place inside his luggage those incriminating items.74 (Emphasis in the
original)
cralaw lawlib rary

Respondent argues that there was a valid waiver of Dela Cruz's right to unreasonable search and seizure,
thus warranting his conviction.75 Dela Cruz was "caught in flagrante delicto carrying three (3) revolvers and
four (4) live ammunitions when his bag went through the x-ray machine in the Cebu Domestic Port on May
11, 2007, well within the election period."76 The firearms were seized during a routine baggage x-ray at the
port of Cebu, a common seaport security procedure.77

According to respondent, this case is similar to valid warrantless searches and seizures conducted by airport
personnel pursuant to routine airport security procedures.78

Records are also clear that Dela Cruz voluntarily waived his right to unreasonable searches and seizure.79The
trial court found that Dela Cruz voluntarily gave his consent to the search.80

Dela Cruz's claim that his bag was switched is also baseless.81 The witnesses categorically testified that Dela
Cruz was "in possession of the bag before it went through the x-ray machine, and he was also in possession
of the same bag that contained the firearms when he was apprehended."82

Dela Cruz raised the lone issue of "whether the Court of Appeals gravely erred in finding [him] guilty beyond
reasonable doubt of the crime charged despite the failure of the prosecution to establish his guilt beyond
reasonable doubt[.]"83

The issues for resolution in this case are

First, whether petitioner Erwin Libo-on Dela Cruz was in possession of the illegal firearms within the
meaning of the Commission on Elections Resolution No. 7764, in relation to Section 261 of Batas Pambansa
Blg. 881;

Second, whether petitioner waived his right against unreasonable searches and seizures; and

Lastly, assuming that there was no waiver, whether there was a valid search and seizure in this case.

We deny the Petition.

The present criminal case was brought to this court under Rule 45 of the Rules of Court. The penalty
imposed on petitioner by the trial court is material in determining the mode of appeal to this court. A
petition for review on certiorari under Rule 45 must be differentiated from appeals under Rule 124, Section
1384 involving cases where the lower court imposed on the accused the penalty of reclusion perpetua, life
imprisonment, or, previously, death.85

In Mercado v. People86 cha nrob lesvi rtua llawlib ra ry

Where the Court of Appeals finds that the imposable penalty in a criminal case brought to it on appeal is at
least reclusion perpetua, death or life imprisonment, then it should impose such penalty, refrain from
entering judgment thereon, certify the case and elevate the entire records to this Court for review. This will
obviate the unnecessary, pointless and time-wasting shuttling of criminal cases between this Court and the
Court of Appeals, for by then this Court will acquire jurisdiction over the case from the very inception and
can, without bothering the Court of Appeals which has fully completed the exercise of its jurisdiction, do
justice in the case.

On the other hand, where the Court of Appeals imposes a penalty less than reclusion perpetua, a review of
the case may be had only by petition for review on certiorari under Rule 45 where only errors or questions
of law may be raised.87 (Emphasis supplied, citations omitted) c ralawlawli bra ry

It is settled that in petitions for review on certiorari, only questions of law are reviewed by this court.88The
rule that only questions of law may be raised in a petition for review under Rule 45 is based on sound and
practical policy considerations stemming from the differing natures of a question of law and a question of
fact
A question of law exists when the doubt or controversy concerns the correct application of law or
jurisprudence to a certain set of facts; or when the issue does not call for an examination of the probative
value of the evidence presented, the truth or falsehood of facts being admitted. A question of fact exists
when the doubt or difference arises as to the truth or falsehood of facts or when the query invites calibration
of the whole evidence considering mainly the credibility of the witnesses, the existence and relevancy of
specific surrounding circumstances as well as their relation to each other and to the whole, and the
probability of the situation.89
cralawlawl ibra ry
ChanRobles Vi rtua lawlib rary

Concomitantly, factual findings of the lower courts as affirmed by the Court of Appeals are binding on this
court.90

In contrast, an appeal in a criminal case "throws the whole case open for review[.]"91 The underlying
principle is that errors in an appealed judgment, even if not specifically assigned, may be corrected motu
propio by the court if the consideration of these errors is necessary to arrive at a just resolution of the
case.92 Nevertheless, "the right to appeal is neither a natural right nor a part of due process, it being merely
a statutory privilege which may be exercised only in the manner provided for by law[.]"93

II

Petitioner argues that the firearms found in his bag were not his. Thus, he could not be liable for possessing
the contraband. Key to the resolution of this case is whether petitioner possessed firearms without the
necessary authorization from the Commission on Elections. Petitioner was charged under special laws:
Republic Act No. 8294 and Commission on Elections Resolution No. 7764, in relation to Section 261 of Batas
Pambansa Blg. 881.

The law applicable is Section 2(a) of Commission on Elections Resolution No. 7764, which provides

SECTION 2. Prohibitions. During the election period from January 14, 2007 it shall be unlawful for

a. Any person, including those possessing a permit to carry firearms outside of residence or
place of business, to bear, carry or transport firearms or other deadly weapons in public
places including any building, street, park, private vehicle or public conveyance. For the
purpose firearm includes airgun, while deadly weapons include hand grenades or other
explosives, except pyrotechnics[.]
cralawlawl ibra ry

Section 261 (q) of Batas Pambansa Blg. 881 states

Section 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. (Par. (1), Id.)

This prohibition shall not apply to cashiers and disbursing officers while in the performance of their duties or
to persons who by nature of their official duties, profession, business or occupation habitually carry large
sums of money or valuables.
cralawlawl ibra ry

For a full understanding of the nature of the constitutional rights involved, we will examine three (3) points
of alleged intrusion into the right to privacy of petitioner: first, when petitioner gave his bag for x-ray
scanning to port authorities; second, when the baggage inspector opened petitioner's bag and called the
Port Authority Police; and third, when the police officer opened the bag to search, retrieve, and seize the
firearms and ammunition.

III

The first point of intrusion occurred when petitioner presented his bag for inspection to port personnel—the
x-ray machine operator and baggage inspector manning the x-ray machine station.94 With regard to
searches and seizures, the standard imposed on private persons is different from that imposed on state
agents or authorized government authorities.

In People v. Marti,95 the private forwarding and shipping company, following standard operating procedure,
opened packages sent by accused Andre Marti for shipment to Zurich, Switzerland and detected a peculiar
odor from the packages.96 The representative from the company found dried marijuana leaves in the
packages.97 He reported the matter to the National Bureau of Investigation and brought the samples to the
Narcotics Section of the Bureau for laboratory examination.98 Agents from the National Bureau of
Investigation subsequently took custody of the illegal drugs.99 Andre Marti was charged with and was found
guilty of violating Republic Act No. 6425, otherwise known as the Dangerous Drugs Act.100

This court held that there was no unreasonable search or seizure.101 The evidence obtained against the
accused was not procured by the state acting through its police officers or authorized government
agencies.102 The Bill of Rights does not govern relationships between individuals; it cannot be invoked
against the acts of private individuals103
chan roble svirtuallaw lib rary

If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to
pass the test of constitutionality. However, if the search is made at the behest or initiative of the proprietor
of a private establishment for its own and private purposes, as in the case at bar, and without the
intervention of police authorities, the right against unreasonable search and seizure cannot be invoked for
only the act of private individual, not the law enforcers, is involved. In sum, the protection against
unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to
bring it within the ambit of alleged unlawful intrusion by the government.104
cralawlawl ibra ry
ChanRobles Vi rtua lawlib rary

Hence, by virtue of Marti, items seized pursuant to a reasonable search conducted by private persons are
not covered by the exclusionary rule.105

To determine whether the intrusion by the port personnel in this case was committed by private or public
persons, we revisit the history and organizational structure of the Philippine Ports Authority.

Port security measures are consistent with the country's aim to develop transportation and trade in
conjunction with national and economic growth. In 1974, the Philippine Ports Authority was created for the
reorganization of port administration and operation functions.106 The Philippine Ports Authority's Charter was
later revised through Presidential Decree No. 857. The Revised Charter provided that the Authority may

after consultation with relevant Government agencies, make rules or regulations for the planning,
development, construction, maintenance, control, supervision and management of any Port or Port District
and the services to be provided therein, and for the maintenance of good order therein, and generally for
carrying out the process of this Decree.107 cra lawlawlib ra ry

The Philippine Ports Authority was subsequently given police authority through Executive Order No.
513,108 which provides

Sec. 2. Section 6 is hereby amended by adding a new paragraph to read as follows

Section 6-c. Police Authority - The Authority shall have such police authority within the ports administered
by it as may be necessary to carry out its powers and functions and attain its purposes and objectives,
without prejudice to the exercise of the functions of the Bureau of Customs and other law enforcement
bodies within the area. Such police authority shall include the following

a) To provide security to cargoes, port equipment, structure, facilities, personnel and documents: Provided,
however, That in ports of entry, physical security to import and export cargoes shall be exercised jointly
with the Bureau of Customs;

b) To regulate the entry to, exit from, and movement within the port, of persons and vehicles, as well as
movement within the port of watercraft;

c) To maintain peace and order inside the port, in coordination with local police authorities;

d) To supervise private security agencies operating within the port area; and

e) To enforce rules and regulations promulgated by the Authority pursuant to law. (Emphasis supplied)
cralawlawl ibra ry
In 1992, the Cebu Port Authority was created to specifically administer all ports located in the Province of
Cebu.109 The Cebu Port Authority is a "public-benefit corporation . . . under the supervision of the
Department of Transportation and Communications for purposes of policy coordination."110 Control of the
ports was transferred to the Cebu Port Authority on January 1, 1996, when its operations officially began.111

In 2004, the Office for Transportation Security was designated as the "single authority responsible for the
security of the transportation systems [in] the country[.]"112 Its powers and functions included providing
security measures for all transportation systems in the country

b. Exercise operational control and supervision over all units of law enforcement agencies and agency
personnel providing security services in the transportation systems, except for motor vehicles in land
transportation, jointly with the heads of the bureaus or agencies to which the units or personnel organically
belong or are assigned;

c. Exercise responsibility for transportation security operations including, but not limited to, security
screening of passengers, baggage and cargoes, and hiring, retention, training and testing of security
screening personnel;

d. In coordination with the appropriate agencies and/or instrumentalities of the government, formulate,
develop, promulgate and implement comprehensive security plans, policies, measures, strategies and
programs to ably and decisively deal with any threat to the security of transportation systems, and
continually review, assess and upgrade such security plans, policies, measures, strategies and programs, to
improve and enhance transportation security and ensure the adequacy of these security measures;

e. Examine and audit the performance of transportation security personnel, equipment and facilities, and,
thereafter, establish, on a continuing basis, performance standards for such personnel, equipment and
facilities, including for the training of personnel;

f. Prepare a security manual/master plan or programme which shall prescribe the rules and regulations for
the efficient and safe operation of all transportation systems, including standards for security screening
procedures, prior screening or profiling of individuals for the issuance of security access passes, and
determination of levels of security clearances for personnel of the OTS, the DOTC and its attached agencies,
and other agencies of the government;

g. Prescribe security and safety standards for all transportation systems in accordance with existing laws,
rules, regulations and international conventions;

h. Subject to the approval of the Secretary of the DOTC, issue Transportation Security Regulations/Rules
and amend, rescind or revise such regulations or rules as may be necessary for the security of the
transportation systems of the country[.]113 (Emphasis supplied) c ralawlawli bra ry

The Cebu Port Authority has adopted security measures imposed by the Office for Transportation Security,
including the National Security Programme for Sea Transport and Maritime Infrastructure.114

The Cebu Port Authority is clothed with authority by the state to oversee the security of persons and
vehicles within its ports. While there is a distinction between port personnel and port police officers in this
case, considering that port personnel are not necessarily law enforcers, both should be considered agents of
government under Article III of the Constitution. The actions of port personnel during routine security
checks at ports have the color of a state-related function.

In People v. Malngan,115 barangay tanod and the Barangay Chairman were deemed as law enforcement
officers for purposes of applying Article III of the Constitution.116 In People v. Lauga,117 this court held that a
"bantay bayan," in relation to the authority to conduct a custodial investigation under Article III, Section
12118 of the Constitution, "has the color of a state-related function and objective insofar as the entitlement
of a suspect to his constitutional rights[.]"119

Thus, with port security personnel's functions having the color of state-related functions and deemed agents
of government, Marti is inapplicable in the present case. Nevertheless, searches pursuant to port security
measures are not unreasonable per se. The security measures of x-ray scanning and inspection in domestic
ports are akin to routine security procedures in airports.

In People v. Suzuki,120 the accused "entered the pre-departure area of the Bacolod Airport Terminal."121He
was "bound for Manila via flight No. 132 of the Philippine Airlines and was carrying a small traveling bag and
a box marked 'Bongbong's piaya."122 The accused "proceeded to the 'walk through metal detector,' a
machine which produces a red light and an alarm once it detects the presence of metallic substance or
object."123 "Thereupon, the red light switched on and the alarm sounded, signifying the presence of metallic
substance either in his person or in the box he was carrying."124 When the accused was asked to open the
content of the box, he answered "open, open."125 Several packs of dried marijuana fruiting tops were then
found inside the box.126 Suzuki argued that the box was only given to him as "pasalubong" by a certain
Pinky, whom he had sexual relations with the night before.127 He did not know the contents of the box.128

This court in Suzuki found that the search conducted on the accused was a valid exception to the prohibition
against warrantless searches as it was pursuant to a routine airport security procedure129 cha nro blesvi rtua llawli bra ry

It is axiomatic that a reasonable search is not to be determined by any fixed formula but is to be resolved
according to the facts of each case. Given the circumstances obtaining here, we find the search conducted
by the airport authorities reasonable and, therefore, not violative of his constitutional rights. Hence, when
the search of the box of piaya revealed several marijuana fruiting tops, appellant is deemed to have been
caught in flagrante delicto, justifying his arrest even without a warrant under Section 5(a), Rule 113 of the
Rules of Criminal Procedure. The packs of marijuana obtained in the course of such valid search are thus
admissible as evidence against appellant.130 (Citations omitted) c ralawlawli bra ry

The reason behind it is that there is a reasonable reduced expectation of privacy when coming into airports
or ports of travel

Persons may lose the protection of the search and seizure clause by exposure of their persons or property to
the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is
prepared to recognize as reasonable. Such recognition is implicit in airport security procedures. With
increased concern over airplane hijacking and terrorism has come increased security at the nation's airports.
Passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage
as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the
presence of suspicious objects, physical searches are conducted to determine what the objects are. There is
little question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety
interests involved, and the reduced privacy expectations associated with airline travel. Indeed, travelers are
often notified through airport public address systems, signs and notices in their airline tickets that they are
subject to search and, if any prohibited materials or substances are found, such would be subject to seizure.
These announcements place passengers on notice that ordinary constitutional protections against
warrantless searches and seizures do not apply to routine airport procedures.131 (Emphasis supplied,
citations omitted)cra lawlawlib rary

This rationale was reiterated more recently in Sales v. People.132 This court in Sales upheld the validity of
the search conducted as part of the routine security check at the old Manila Domestic Airport—now Terminal
1 of the Ninoy Aquino International Airport.133

Port authorities were acting within their duties and functions when it used x-ray scanning machines for
inspection of passengers' bags.134 When the results of the x-ray scan revealed the existence of firearms in
the bag, the port authorities had probable cause to conduct a search of petitioner's bag. Notably, petitioner
did not contest the results of the x-ray scan.

IV

Was the search rendered unreasonable at the second point of intrusion—when the baggage inspector
opened petitioner's bag and called the attention of the port police officer?

We rule in the negative.

The port personnel's actions proceed from the authority and policy to ensure the safety of travelers and
vehicles within the port. At this point, petitioner already submitted himself and his belongings to inspection
by placing his bag in the x-ray scanning machine.

The presentation of petitioner's bag for x-ray scanning was voluntary. Petitioner had the choice of whether
to present the bag or not. He had the option not to travel if he did not want his bag scanned or inspected. X-
ray machine scanning and actual inspection upon showing of probable cause that a crime is being or has
been committed are part of reasonable security regulations to safeguard the passengers passing through
ports or terminals. Probable cause is

reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to induce a

cautious man to believe that the person accused is guilty of the offense charged. It refers to the existence of
such facts and circumstances that can lead a reasonably discreet and prudent man to believe that an offense
has been committed, and that the items, articles or objects sought in connection with said offense or subject
to seizure and destruction by law are in the place to be searched.135 cralawlaw lib rary

It is not too burdensome to be considered as an affront to an ordinary person's right to travel if weighed
against the safety of all passengers and the security in the port facility.

As one philosopher said, the balance between authority and an individual's liberty may be confined within
the harm that the individual may cause others. John Stuart Mill's "harm principle" provides

[T]he sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of
action of any of their number, is self-protection. That the only purpose for which power can be rightfully
exercised over any member of a civilised community, against his will, is to prevent harm to others. His own
good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear
because it will be better for him to do so, because it will make him happier, because, in the opinions of
others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or
reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with
any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be
calculated to produce evil to someone else. The only part of the conduct of any one, for which he is
amenable to society, is that which concerns others. In the part which merely concerns himself, his
independence is, of right, absolute. Over himself, over his own body and mind, the individual is
sovereign.136c ralawlawl ibrary

Any perceived curtailment of liberty due to the presentation of person and effects for port security measures
is a permissible intrusion to privacy when measured against the possible harm to society caused by lawless
persons.

A third point of intrusion to petitioner's right to privacy occurred during petitioner's submission to port
security measures. This court should determine whether the requirements for a valid waiver against
unreasonable searches and seizures were met.

After detection of the firearms through the x-ray scanning machine and inspection by the baggage inspector,
Officer Abregana was called to inspect petitioner's bag.

The Constitution safeguards a person's right against unreasonable searches and seizures.137 A warrantless
search is presumed to be unreasonable.138 However, this court lays down the exceptions where warrantless
searches are deemed legitimate: (1) warrantless search incidental to a lawful arrest; (2) seizure in "plain
view"; (3) search of a moving vehicle; (4) consented warrantless search; (5) customs search; (6) stop and
frisk; and (7) exigent and emergency circumstances.139

In Caballes v. Court of Appeals140chan roble svirtual lawlib rary

In case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it is
fundamental that to constitute a waiver, it must first appear that (1) the right exists; (2) that the person
involved had knowledge, either actual or constructive, of the existence of such right; and (3) the said person
had an actual intention to relinquish the right.141 cra lawlawlib rary

Petitioner anchors his case on the claim that he did not validly consent to the search conducted by the port
authorities. He argues that he did not have an actual intention to relinquish his right against a warrantless
search.

In cases involving the waiver of the right against unreasonable searches and seizures, events must be
weighed in its entirety. The trial court's findings show that petitioner presented his bag for scanning in the
x-ray machine.142 When his bag went through the x-ray machine and the firearms were detected, he
voluntarily submitted his bag for inspection to the port authorities

Prosecutor Narido

Q. What did he tell you?

A. I asked him if I can check his bag?

Q. What was his response?

A. He consented and cooperated. I checked the bag.143 cralawlawlibra ry

It was after the port personnel's inspection that Officer Abregana's attention was called and the bag was
inspected anew with petitioner's consent.144

"[A]ppellate courts accord the highest respect to the assessment of witnesses' credibility by the trial court,
because the latter was in a better position to observe their demeanor and deportment on the witness
stand." We do not find anything erroneous as to the findings of fact of both the trial court and the Court of
Appeals.

There was probable cause that petitioner was committing a crime leading to the search of his personal
effects. As the trial court found

Given the circumstances obtaining here, the court finds the search conducted by the port authorities
reasonable and, therefore, not violative of the accused's constitutional rights. Hence, when the search of the
bag of the accused revealed the firearms and ammunitions, accused is deemed to have been caught in
flagrante delicto, justifying his arrest even without a warrant under Section 5(a), Rule 113 of the Rules of
Criminal Procedure. The firearms and ammunitions obtained in the course of such valid search are thus
admissible as evidence against [the] accused.146 cralawlawlib rary

Similar to the accused in People v. Kagui Malasugui174 and People v. Omaweng148 who permitted authorities
to search their persons and premises without a warrant, petitioner is now precluded from claiming an invalid
warrantless search when he voluntarily submitted to the search on his person. In addition, petitioner's
consent to the search at the domestic port was not given under intimidating or coercive circumstances.149

This case should be differentiated from that of Aniag, Jr. v. Commission on Elections,150 which involved the
search of a moving vehicle at a checkpoint.151 In that case, there was no implied acquiescence to the search
since the checkpoint set up by the police authorities was conducted without proper consultation, and it left
motorists without any choice except to subject themselves to the checkpoint

It may be argued that the seeming acquiescence of Arellano to the search constitutes an implied waiver of
petitioner's right to question the reasonableness of the search of the vehicle and the seizure of the firearms.

While Resolution No. 2327 authorized the setting up of checkpoints, it however stressed that "guidelines
shall be made to ensure that no infringement of civil and political rights results from the implementation of
this authority," and that "the places and manner of setting up of checkpoints shall be determined in
consultation with the Committee on Firearms Ban and Security Personnel created under Sec. 5, Resolution
No. 2323." The facts show that PNP installed the checkpoint at about five o'clock in the afternoon of 13
January 1992. The search was made soon thereafter, or thirty minutes later. It was not shown that news of
impending checkpoints without necessarily giving their locations, and the reason for the same have been
announced in the media to forewarn the citizens. Nor did the informal checkpoint that afternoon carry signs
informing the public of the purpose of its operation. As a result, motorists passing that place did not have
any inkling whatsoever about the reason behind the instant exercise. With the authorities in control to stop
and search passing vehicles, the motorists did not have any choice but to submit to the PNP's scrutiny.
Otherwise, any attempt to turnabout albeit innocent would raise suspicion and provide probable cause for
the police to arrest the motorist and to conduct an extensive search of his vehicle.

In the case of petitioner, only his driver was at the car at that time it was stopped for inspection. As
conceded by COMELEC, driver Arellano did not know the purpose of the checkpoint. In the face of fourteen
(14) armed policemen conducting the operation, driver Arellano being alone and a mere employee of
petitioner could not have marshalled the strength and the courage to protest against the extensive search
conducted in the vehicle. In such scenario, the "implied acquiescence," if there was any, could not be more
than a mere passive conformity on Arellano's part to the search, and "consent" given under intimidating or
coercive circumstances is no consent within the purview of the constitutional guaranty.152 (Emphasis
supplied, citations omitted)cra lawlawli brary

We also cannot subscribe to petitioner's argument that there was no . valid consent to the search because
his consent was premised on his belief that there were no prohibited items in his bag. The defendant's belief
that no incriminating evidence would be found does not automatically negate valid consent to the search
when incriminating items are found. His or her belief must be measured against the totality of the
circumstances.153 Again, petitioner voluntarily submitted himself to port security measures and, as he
claimed during trial, he was familiar with the security measures since he had been traveling back and forth
through the sea port.

Consequently, we find respondent's argument that the present petition falls under a valid consented search
and during routine port security procedures meritorious. The search conducted on petitioner's bag is valid.

VI

The consented search conducted on petitioner's bag is different from a customs search.

Customs searches, as exception to the requirement of a valid search warrant, are allowed when "persons
exercising police authority under the customs law . . . effect search and seizure ... in the enforcement of
customs laws."154 The Tariff and Customs Code provides the authority for such warrantless search, as this
court ruled in Papa, et at. v. Mago, et al.155
chanroblesv irt uallawl ibra ry

The Code authorizes persons having police authority under Section 2203 of the Tariff and Customs Code to
enter, pass through or search any land, inclosure, warehouse, store or building, not being a dwelling house;
and also to inspect, search and examine any vessel or aircraft and any trunk, package, box or envelope or
any person on board, or stop and search and examine any vehicle, beast or person suspected of holding or
conveying any dutiable or prohibited article introduced into the Philippines contrary to law, without
mentioning the need of a search warrant in said cases.156 (Citation omitted)
cralawlawl ibra ry

The ruling in Papa was echoed in Salvador v. People,157 in that the state's policy to combat smuggling must
not lose to the difficulties posed by the debate on whether the state has the duty to accord constitutional
protection to dutiable articles on which duty has not been paid, as with a person's papers and/or effects.158

Hence, to be a valid customs search, the requirements are: (1) the person/s conducting the search
was/were exercising police authority under customs law; (2) the search was for the enforcement of customs
law; and (3) the place searched is not a dwelling place or house. Here, the facts reveal that the search was
part of routine port security measures. The search was not conducted by persons authorized under customs
law. It was also not motivated by the provisions of the Tariff and Customs Code or other customs laws.
Although customs searches usually occur within ports or terminals, it is important that the search must be
for the enforcement of customs laws.

VII

In violations of the Gun Ban, the accused must be "in possession of a firearm . . . outside of his residence
within the period of the election gun ban imposed by the COMELEC sans authority[.]"159

In Abenes v. Court of Appeals,160 this court enumerated the elements for a violation of the Gun Ban: "1) the
person is bearing, carrying, or transporting firearms or other deadly weapons; 2) such possession occurs
during the election period; and, 3) the weapon is carried in a public place."161 This court also ruled that
under the Omnibus Election Code, the burden to show that he or she has a written authority to possess a
firearm is on the accused.162

We find that the prosecution was able to establish all the requisites for violation of the Gun Ban. The
firearms were found inside petitioner's bag. Petitioner did not present any valid authorization to carry the
firearms outside his residence during the period designated by the Commission on Elections. He was
carrying the firearms in the Cebu Domestic Port, which was a public place.

However, petitioner raised the following circumstances in his defense: (1) that he was a frequent traveler
and was, thus, knowledgeable about the security measures at the terminal; (2) that he left his bag with a
porter for a certain amount of time; and (3) that he voluntarily put his bag on the x-ray machine for
voluntary inspection. All these circumstances were left uncontested by the prosecution.

This court is now asked to determine whether these circumstances are sufficient to raise reasonable doubt
on petitioner's guilt.

When petitioner claimed that someone planted the illegal firearms in his bag, the burden of evidence to
prove this allegation shifted to him. The shift in the burden of evidence does not equate to the reversal of
the presumption of innocence. In People v. Villanueva,163 this court discussed the difference between burden
of proof and burden of evidence, and when the burden of evidence shifts to the accused

Indeed, in criminal cases, the prosecution bears the onus to prove beyond reasonable doubt not only the
commission of the crime but likewise to establish, with the same quantum of proof, the identity of the
person or persons responsible therefor. This burden of proof does not shift to the defense but remains in the
prosecution throughout the trial. However, when the prosecution has succeeded in discharging the burden of
proof by presenting evidence sufficient to convince the court of the truth of the allegations in the information
or has established a prima facie case against the accused, the burden of evidence shifts to the accused
making it incumbent upon him to adduce evidence in order to meet and nullify, if not to overthrow, that
prima facie case.164 (Emphasis supplied, citation omitted) cral awlawlib rary

Petitioner failed to negate the prosecution's evidence that he had animus possidendi or the intent to possess
the illegal firearms. In People v. De Gracia, this court elucidated on the concept of animus possidendi and
the importance of the intent to commit an act prohibited by law as differentiated from criminal intent.166 The
accused was charged with the qualified offense of illegal possession of firearms in furtherance of rebellion
under Presidential Decree No. 1866 resulting from the coup d'etat staged in 1989 by the Reform Armed
Forces Movement - Soldiers of the Filipino People.167 This court held that the actions of the accused
established his intent to possess the illegal firearms

When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is
sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to
commit the crime and intent to perpetrate the act must be distinguished. A person may not have
consciously intended to commit a crime; but he did intend to commit an act, and that act is, by the very
nature of things, the crime itself. In the first (intent to commit the crime), there must be criminal intent; in
the second (intent to perpetrate the act) it is enough that the prohibited act is done freely and consciously.

In the present case, a distinction should be made between criminal intent and intent to possess. While mere
possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it
must still be shown that there was animus possidendi or an intent to possess on the part of the
accused. Such intent to possess is, however, without regard to any other criminal or felonious intent which
the accused may have harbored in possessing the firearm. Criminal intent here refers to the intention of the
accused to commit an offense with the use of an unlicensed firearm. This is not important in convicting a
person under Presidential Decree No. 1866. Hence, in order that one may be found guilty of a violation of
the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he
intended to possess the same, even if such possession was made in good faith and without criminal intent.

Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot be

considered a violation of a statute prohibiting the possession of this kind of weapon, such as Presidential
Decree No. 1866. Thus, although there is physical or constructive possession, for as long as the animus
possidendi is absent, there is no offense committed.

Coming now to the case before us, there is no doubt in our minds that appellant De Gracia is indeed guilty
of having intentionally possessed several firearms, explosives and ammunition without the requisite license
or authority therefor. Prosecution witness Sgt. Oscar Abenia categorically testified that he was the first one
to enter the Eurocar Sales Office when the military operatives raided the same, and he saw De Gracia
standing in the room and holding the several explosives marked in evidence as Exhibits D to D-4. At first,
appellant denied any knowledge about the explosives. Then, he alternatively contended that his act of
guarding the explosives for and in behalf of Col. Matillano does not constitute illegal possession thereof
because there was no intent on his part to possess the same, since he was merely employed as an errand
boy of Col. Matillano. His pretension of impersonal or indifferent material possession does not and cannot
inspire credence.

Animus possidendi is a state of mind which may be determined on a case to case basis, taking into
consideration the prior and coetaneous acts of the accused and the surrounding circumstances. What exists
in the realm of thought is often disclosed in the range of action.It is not controverted that appellant De
Gracia is a former soldier, having served with the Philippine Constabulary prior to his separation from the
service for going on absence without leave (AWOL). We do not hesitate, therefore, to believe and conclude
that he is familiar with and knowledgeable about the dynamites, "molotov" bombs, and various kinds of
ammunition which were confiscated by the military from his possession. As a former soldier, it would be
absurd for him not to know anything about the dangerous uses and power of these weapons. A fortiori, he
cannot feign ignorance on the import of having in his possession such a large quantity of explosives and
ammunition. Furthermore, the place where the explosives were found is not a military camp or office, nor
one where such items can ordinarily but lawfully be stored, as in a gun store, an arsenal or armory. Even an
ordinarily prudent man would be put on guard and be suspicious if he finds articles of this nature in a place
intended to carry out the business of selling cars and which has nothing to do at all, directly or indirectly,
with the trade of firearms and ammunition.168 (Emphasis supplied, citations omitted) cralawlaw lib rary

The disquisition in De Gracia on the distinction between criminal intent and intent to possess, which is
relevant to convictions for illegal possession of firearms, was reiterated in Del Rosario v. People.169 This
court ruled that "[i]n the absence of animus possidendi, the possessor of a Firearms incurs no criminal
liability.”170

In this case, petitioner failed to prove that his possession of the illegal firearms seized from his bag was
“temporary, incidental, casual, or harmless possession[.]”171 As put by the trial court, petitioner’s claim that
anyone could have planted the firearms in his bag while it was unattended is flimsy.172 There are dire
consequences in accepting this claim at face value, particularly that no one will be caught and convicted of
illegal possession of firearms.

Courts must also weigh the accused’s claim against the totality of the evidence presented by the
prosecution. This includes determination of: (1) the motive of whoever allegedly planted the illegal
firearms(s); (2) whether there was opportunity to plant the illegal firearms(s); and (3) reasonableness of
the situation creating the opportunity.

Petitioner merely claims that someone must have planted the firearms when he left his bag with the porter.
He did not identify who this person could have been and he did not state any motive for this person to plant
the firearms in his possession, even if there was indeed an opportunity to plant the firearms.

However, this court is mindful that, owing to the nature of his work, petitioner was a frequent traveler who
is well-versed with port security measure. We cannot accept that an average reasonable person aware of
travel security measures would leave his belongings with a stranger for a relatively long period of time. Also,
records show that petitioner had only (1) bag. There was no evidence to show that a robust young man like
petitioner would have been need of the porter’s services. The defense did not identify nor present this porter
with whom petitioner left his bag.

VIII

The trial court was correct when it dismissed Criminal Case No. CBU-80084 for violation of Republic Act no.
8294, otherwise known as illegal possession of firearms. Section 1 of Republic Act No. 8294 provides

SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as
follows

SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or

Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. - The penalty
of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000)
shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess
any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part
of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of
any firearm or ammunition

Provided, That no other crime was committed. (Emphasis supplied) cra lawlawlib ra ry

Agote v. Judge Lorenzo173 already settled the question of whether there can be a "separate offense of illegal
possession of firearms and ammunition if there is another crime committed[.]"174 In that case, the petitioner
was charged with both illegal possession of firearms and violation of the Gun Ban under Commission on
Elections Resolution No. 2826.175 This court acquitted petitioner in the case for illegal possession of firearms
since he simultaneously violated the Gun Ban.176 This court also held that the unlicensed firearm need not
be actually used in the course of committing the other crime for the application of Section 1 of Republic Act
No. 8294.177

Similarly, Madrigal v. People178 applied the ruling in Agote and held that Section 1 of Republic Act No. 8294
is express in its terms that a person may not be convicted for illegal possession of firearms if another crime
was committed.179

IX

We note that the trial court imposed the penalty of imprisonment for a period of one (1) year and to suffer
disqualification to hold public office and deprivation of the right to suffrage. Under Section 264 of Batas
Pambansa Blg. 881, persons found guilty of an election offense "shall be punished with imprisonment of not
less than one year but not more than six years and shall not be subject to probation."180 The Indeterminate
Sentence Law applies to offenses punished by both the Revised Penal Code and special laws.181

The penalty to be imposed is a matter of law that courts must follow. The trial court should have provided
minimum and maximum terms for petitioner's penalty of imprisonment as required by the Indeterminate
Sentence Law.182 Accordingly, we modify the penalty imposed by the trial court. Based on the facts, we
deem it reasonable that petitioner be penalized with imprisonment of one (1) year as minimum to two (2)
years as maximum.183

The records are unclear whether petitioner is currently detained by the state or is out on bail. Petitioner's
detention is relevant in determining whether he has already served more than the penalty imposed upon
him by the trial court as modified by this court, or whether he is qualified to the credit of his preventive
imprisonment with his service of sentence.

Article 29184 of the Revised Penal Code states

ART. 29. Period of preventive imprisonment deducted from term of imprisonment. - Offenders or accused
who have undergone preventive imprisonment shall be credited in the service of their sentence consisting of
deprivation of liberty, with the full time during which they have undergone preventive imprisonment if the
detention prisoner agrees voluntarily in writing after being informed of the effects thereof and with the
assistance of counsel to abide by the same disciplinary rules imposed upon convicted prisoners, except in
the following cases

1. When they are recidivists, or have been convicted previously twice or more times of any crime; and

2. When upon being summoned for the execution of their sentence they have failed to surrender voluntarily.

If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted
prisoners, he shall do so in writing with the assistance of a counsel and shall be credited in the service of his
sentence with four-fifths of the time during which he has undergone preventive imprisonment.

Credit for preventive imprisonment for the penalty of reclusion perpetua shall be deducted from thirty (30)
years.

Whenever an accused has undergone preventive imprisonment for a period equal to the possible maximum
imprisonment of the offense charged to which he may be sentenced and his case is not yet terminated, he
shall be released immediately without prejudice to the continuation of the trial thereof or the proceeding on
appeal, if the same is under review. Computation of preventive imprisonment for purposes of immediate
release under this paragraph shall be the actual period of detention with good conduct time allowance:
Provided, however, That if the accused is absent without justifiable cause at any stage of the trial, the court
may motu proprio order the rearrest of the accused: Provided, finally, That recidivists, habitual delinquents,
escapees and persons charged with heinous crimes are excluded from the coverage of this Act. In case the
maximum penalty to which the accused may be sentenced is lestierro [sic], he shall be released after thirty
(30) days of preventive imprisonment. cralawlawl ibra ry

In case credit of preventive imprisonment is due, petitioner must first signify his agreement to the
conditions set forth in Article 29 of the Revised Penal Code.185 If petitioner has already served more than the
penalty imposed upon him by the trial court, then his immediate release from custody is in order unless
detained for some other lawful cause.186

WHEREFORE, the Petition is DENIED. The Court of Appeals Decision dated September 8, 2012 and the
Resolution dated August 23, 2013 in CA-GR CEB CR No. 01606 are AFFIRMED with MODIFICATIONS.
Petitioner Erwin Libo-On Dela Cruz is sentenced to imprisonment of one (1) year as minimum to two (2)
years as maximum in accordance with the Indeterminate Sentence Law. The period of his preventive
imprisonment shall be credited in his favor if he has given his written conformity to abide by the disciplinary
rules imposed upon convicted prisoners in accordance with Article 29 of the Revised Penal Code, as
amended, and if he is not out on bail.

SO ORDERED.

Carpio, (Chairperson), Brion, Del Castillo, and Mendoza, JJ., concur.

Endnotes

Rollo, pp. 8-21.

1
2
Id. at 56-63. The case was docketed as CA-GR CEB CR. No. 01606. The Decision was penned by Associate
Justice Ramon Paul L. Hernando (Chair) and concurred in by Associate Justices Gabriel T. Ingles and Zenaida
T. Galapate-Laguilles of the Special Twentieth Division, Court of Appeals Cebu.

3
Id. at 68-69. The Resolution was penned by Associate Justice Ramon Paul L. Hernando and concurred in by
Associate Justices Edgardo L. Delos Santos (Chair) and Gabriel T. Ingles of the Special Former Special
Twentieth Division, Court of Appeals Cebu.

4
Id. at 17, Petition.

5
Id. at 63, Court of Appeals Decision.

6
Id. at 23-31, Regional Trial Court's Consolidated Judgment. The Consolidated Judgment was penned by
Presiding Judge Estela Alma A. Singco of Branch 12 of the Regional Trial Court, Cebu City.

7
Rules and Regulations on: (A) Bearing, Carrying or Transporting Firearms or Other Deadly Weapons; (B)
Security Personnel or Bodyguards; (C) Bearing Arms by any Member of Security or Police Organization of
Government Agencies and Other Similar Organization (D) Organization or Maintenance of Reaction Forces
during the Election Period in connection with the May 14, 2007 National and Local Elections.

8
Batas Blg. 881 (1985), sec. 261(q) provides

Section 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. (Par. (1), Id.) This prohibition shall not
apply to cashiers and disbursing officers while in the performance of their duties or to persons who by
nature of their official duties, profession, business or occupation habitually carry large sums of money or
valuables.

9
Omnibus Election Code of The Philippines.

10
Rollo, p. 30, Regional Trial Court's Consolidated Judgment.

11
Id. at 12, Petition, and 27, Regional Trial Court's Consolidated Judgment; defense's version of the facts as
summarized by the trial court.

12
Id. at 27, Regional Trial Court's Consolidated Judgment.

13
Id. at 25 and 27, Regional Trial Court's Consolidated Judgment, and 58, Court of Appeals Decision.

14
Id. at 27.

15
Id.

16
Id.

17
Id. at 26-27.

18
Id. at 26.

19
Id.

20
Id.

21
Id.

22
Id.

23
Id. at 58, Court of Appeals Decision. In the trial court's Consolidated Judgment, the port personnel was
named "Archie" Igot. The Court of Appeals Decision refers to the port personnel as "Arcie" Igot.

24
Id.
25
Id.

26
Id.

27
Id.

28
Id. at 58-59.

29
Id. at 11, Petition, and 59, Court of Appeals Decision.

30
Id. at 59, Court of Appeals Decision.

31
Id.

32
Id. at 57.

33
Id.

34
Id. at 58.

35
Id.

36
Id. at 11, Petition, and 25, Regional Trial Court's Consolidated Judgment.

37
Id. at 30, Regional Trial Court's Consolidated Judgment, and 59-60, Court of Appeals Decision.

38
Id. at 30, Regional Trial Court's Consolidated Judgment, and 60, Court of Appeals Decision. Id. at 27-28,
Regional Trial Court's Consolidated Judgment.

40
Id.

41
Id. at 28.

42
Id. at 25-28.

43
Id. at 29.

44
Id. at 28.

45
Id.

46
Id. at 29.

47
Id.

48
Id.

49
Id. at 60, Court of Appeals Decision.

50
Id. at 29, Regional Trial Court's Consolidated Judgment.

51
Id. at 30.

52
Id. at 30-31.

53
Id. at 63, Court of Appeals Decision.

54
Id. at 60-61.

55
Id. at 61.

56
Id. at 62.

57
Id.

58
Id. at 62-63.
59
Id. at 63.

60
Id. at 64-67.

61
Id. at 69, Court of Appeals Resolution.

62
Id. at 8, Petition.

63
Id. at 72.

64
Id. at 83-95.

65
Id. at 97.

66
Id. at 14, Petition.

67
Id.

68
Id.

69
Id. at 15.

70
Id.

71
Id.

72
Id.

73
Id. at 15-16.

74
Id. at 16.

75
Id. at 88 and 90-91, Comment.

76
Id. at 88.

77
Id.

78
Id. at 89-90.

79
Id. at 90.

80
Id. at 92, citing the Regional Trial Court's Consolidated Judgment, p. 6.

81
Id. at 92.

82
Id. at 92-93.

83
Id. at 14, Petition.

84
RULES OF COURT, Rule 124, sec. 13, as amended by A.M. No. 00-5-03-SC dated September 28, 2004,
provides

Sec. 13. Certification or appeal of case to the Supreme Court.—(a) Whenever the Court of Appeals finds that
the penalty of death should be imposed, the court shall render judgment but refrain from making an entry of
judgment and forthwith certify the case and elevate its entire record to the Supreme Court for review.

(b) Where the judgment also imposes a lesser penalty for offenses' committed on the same occasion or
which arose out of the same occurrence that gave rise to the more severe offense for which the penalty of
death is imposed, and the accused appeals, the appeal shall be included in the case certified for review to
the Supreme Court.

(c) In cases where the Court of Appeals imposes reclusion perpetua, life imprisonment or a lesser penalty, it
shall render and enter judgment imposing such penalty. The judgment may be appealed to the Supreme
Court by notice of appeal filed with the Court of Appeals.
See People v. Rocha, 558 Phil. 521, 530-535 (2007) [Per J. Chico-Nazario, Third Division], for a discussion
on the difference between appeal for cases involving imposition of life imprisonment and reclusion perpetua,
and automatic review for cases involving imposition of death penalty. See also People v. Mateo, All Phil. 752,
768-773 (2004) [Per J. Vitug, En Banc].

85
See Republic Act No. 9346, entitled "An Act Prohibiting the Imposition of Death Penalty in the Philippines"

86
441 Phil. 216 (2002) [Per J. Bellosillo, Second Division]. The case was decided in 2002 before the
amendment of the Rules in A.M. No. 00-5-3-SC dated September 28, 2004.

87
Id. at 222-223.

88
RULES OF COURT, Rule 45, sec. 1 provides

SECTION 1. Filing of petition with Supreme Court.— A party desiring to appeal by certiorari from a judgment
or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other
courts whenever authorized by law, may file with the Supreme Court a verified petition for review on
certiorari. The petition shall raise only questions of law which must be distinctly set forth.

See Tan v. People, 604 Phil. 68, 78 (2009) [Per J. Chico-Nazario, Third Division].

Ruiz v. People, 512 Phil. 127, 135 (2005) [Per J. Callejo, Sr., Second Division], citing Republic v.
89

Sandiganbayan, 425 Phil. 752, 765-766 (2002) [Per C.J. Davide, Jr., En Banc].

See People v. Cardenas, G R. No. 190342, March 21, 2012, 668 SCRA 827, 844-845 [Per J. Sereno (now
90

C.J.), Second Division].

People v. Galigao, 443 Phil. 246, 261 (2003) [Per J. Ynares-Santiago, En Banc], citing People v. Tano, 387
91

Phil. 465, 478 (2000) [Per J. Panganiban, En Banc] and People v. Castillo, 382 Phil. 499, 506 (2000) [Per J.
Puno, En Banc].

92
People v. Galigao, 443 Phil. 246, 261 (2003) [Per J. Ynares-Santiago, En Banc], citing People v.
Pirame, 384 Phil. 286, 300 (2000) [Per J. Quisumbing, Second Division].

People v. Judge Laguio, Jr., 547 Phil. 296, 309 (2007) [Per J. Garcia, First Division].
93

Rollo, p. 28, Regional Trial Court's Consolidated Judgment.

94

95
271 Phil. 51 (1991) [Per J. Bidin, Third Division].

96
Id. at 54-55.

97
Id. at 55.

98
Id.

99
Id.

100
Id. at 56.

101
Id. at 60.

102
Id.

103
Id. at 61.

104
Id. at 62.

105
Id. at 58. See Stonehill, et al. v. Diokno, et al, 126 Phil. 738 (1967) [Per C.J. Concepcion, En Banc].
In People v. Alicando, 321 Phil. 656, 690-691 (1995) [Per J. Puno, En Banc], this court explained the
doctrine of fruit of the poisonous tree as adopted in this jurisdiction: "We have not only constitutionalized
the Miranda warnings in our jurisdiction. We have also adopted the libertarian exclusionary rule known as
the 'fruit of the poisonous tree,' a phrase minted by Mr. Justice Felix Frankfurter in the celebrated case
of Nardone v. United States. According to this rule, once the primary source (the 'tree') is shown to have
been unlawfully obtained, any secondary or derivative evidence (the 'fruit') derived from it is also
inadmissible. Stated otherwise, illegally seized evidence is obtained as a direct result of the illegal act,
whereas the 'fruit of the poisonous tree' is the indirect result of the same illegal act. The 'fruit of the
poisonous tree' is at least once removed from the illegally seized evidence, but it is equally inadmissible. The
rule is based on the principle that evidence illegally obtained by the State should not be used to gain other
evidence because the originally illegally obtained evidence taints all evidence subsequently obtained. We
applied this exclusionary rule in the recent case of People vs. Salanga, et al., a ponencia of Mr. Justice
Regalado. Salanga was the appellant in the rape and killing of a 15-year old barrio lass. He was, however,
illegally arrested. Soldiers took him into custody. They gave him a body search which yielded a lady's
underwear. The underwear was later identified as that of the victim. We acquitted Salanga. Among other
reasons, we ruled that 'the underwear allegedly taken from the appellant is inadmissible in evidence, being a
so-called fruit of the poisonous tree.'"

106
See Pres. Decree No. 505 (1974), entitled Providing for the Reorganization of Port Administration and
Operation Functions in the Country, Creating the Philippine Port Authority, Paving the Way for the
Establishment of Individual, Autonomous Port/Industrial Zone Authorities in the Different Port Districts, and
for Other Purposes.

107
Pres. Decree No. 857 (1974), art. VIII, sec. 26(a).

108
Exec. Order No. 513 (1978) is entitled Reorganizing the Philippine Ports Authority.

See Rep. Act No. 7621 (1992), entitled An Act Creating the Cebu Port Authority Defining its Powers and
109

Functions, Providing Appropriation therefor, and for Other Purposes.

110
Rep. Act No. 7621 (1992), sec. 3.

111
See Cebu Port Authority, Corporate Profile, History (visited September 1, 2015).

See Exec. Order No. 311 (2004), entitled Designating the Office for Transportation Security as the Single
112

Authority Responsible for the Security of the Transportation Systems of the Country, Expanding its Powers
and Functions and for Other Purposes. See also Exec. Order No. 277 (2004).

113
Exec. Order No. 311 (2004), sec. 2.

See Cebu Port Authority Admin. Order No. 04 (2008) (visited September 1, 2015).
114

115
534 Phil. 404 (2006) [Per J. Chico-Nazario, En Banc]. This case applied the ruling in Marti on the
inapplicability of the Bill of Rights against private individuals. However, it found that barangay tanod and
the Barangay Chairman are law enforcement officers for purposes of applying Article III, Section 12(1) and
(3) of the Constitution.

116
Id. at 439.

117
629 Phil. 522 (2010) [Per J. Perez, Second Division].

118
CONST., art. III, sec. 12 provides

SECTION 12. (1) Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be
used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are
prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in
evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation
to and rehabilitation of victims of torture or similar practices, and their families.

People v. Lauga, 629 Phil. 522, 531 (2010) [Per J. Perez, Second Division].
119

120
G.R. No. 120670, October 23,2003,414 SCRA 43 [Per J. Sandoval-Gutierrez, En Bane].
121
Id. at 45.

122
Id.

123
Id. at 46.

124
Id.

125
Id.

126
Id.

127
Id. at 47.

128
Id.

129
Id. at 53.

130
Id. at 56-57.

131
Id. at 53-54.

132
G.R. No. 191023, February 6, 2013, 690 SCRA 141 [Per J. Villarama, Jr., First Division].

133
Id. at 145 and 152.

134
Police authority has been delegated to different government agencies and instrumentalities through law.
See Tariff Code, sec. 2203; Pres. Decree No. 1716-A (1980), entitled Further Amending Presidential Decree
No. 66 dated November 20, 1972, Creating the Export Processing Zone Authority, sec. 7; and Exec. Order
No. 903 (1983), entitled Providing for a Revision of Executive Order No. 778 Creating the Manila
International Airport Authority, Transferring Existing Assets of the Manila International Airport to the
Authority, and Vesting the Authority with Power to Administer and Operate the Manila International
Airport. See also Salvador v. People, 502 Phil. 60 (2005) [Per J. Sandoval- Gutierrez, Third Division]; Pads
v. Pamaran, 155 Phil. 17 (1974) [Per J. Fernando, Second Division]; Manikad, et al. v. Tanodbayan, et al.,
212 Phil. 669 (1984) [Per J. Escolin, En Banc]; and Manila International Airport Authority v. Court of
Appeals, 528 Phil. 181 (2006) [Per J. Carpio, En Banc].

People v. Mariacos, 635 Phil. 315, 329 (2010) [Per J. Nachura, Second Division], citing People v.
135

Aruta, 351 Phil. 868, 880 (1998) [Per J. Romero, Third Division], citing in turn People v. Encinada, 345 Phil.
301, 317 (1997) [Per J. Panganiban, Third Division].

136
John Stuart Mill, On Liberty (visited September 1, 2015).

137
CONST., art. Ill, sec. 2 provides

SECTION 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.

See People v. Aruta, 351 Phil. 868 (1998) [Per J. Romero, Third Division].
138

139
See People v. Cogaed, G.R. No. 200334, July 30, 2014, 731 SCRA 427, 440-441 [Per J. Leonen, Third
Division]. See also Villanueva v. People, G.R. No. 199042, November 17, 2014 5 [Per C.J. Sereno, First
Division].

140
424 Phil. 263 (2002) [Per J. Puno, First Division].

141
Id. at 289. See People v. Figueroa, 390 Phil. 561 (2000) [Per C.J. Davide, First Division].

Rollo, pp. 26-28, Regional Trial Court's Consolidated Judgment.

142

143
Id. at 28.

144
Id. at 25-27.
145
People v. Lacerna, 344 Phil. 100, 124 (1997) [Per J. Panganiban, Third Division].

Rollo, p. 28, Regional Trial Court's Consolidated Judgment.

146

63 Phil. 221 (1936) [Per J. Diaz, En Banc], citing I THOMAS COOLEY, CONSTITUTIONAL LIMITATIONS
147

631 (8th ed.).

148
G.R. No. 99050, September 2, 1992, 213 SCRA 462, 470-471 [Per J. Davide, Jr., Third Division].

See Caballes v. Court of Appeals, 424 Phil. 263, 289 (2002) [Per J. Puno, First Division].
149

150
G.R. No. 104961, October 7, 1994,237 SCRA424 [Per J. Bellosillo, En Banc].

151
Id. at 429.

152
Id. at 436-437.

See Caballes v. Court of Appeals, 424 Phil. 263, 286 (2002) [Per J. Puno, First Division].
153

Papa, et al v. Mago, et al, 130 Phil. 886, 902 (1968) [Per J. Zaldivar, En Banc].
154

155
130 Phil. 886 (1968) [Per J. Zaldivar, En Banc].

156
Id. at 901-902.

157
502 Phil. 60 (2005) [Per J. Sandoval-Gutierrez, Third Division].

158
Id. at 72.

See Escalante v. People, G.R. No. 192727, January 9, 2013, 688 SCRA 362, 373 [Per J. Reyes, First
159

Division].

160
544 Phil. 614 (2007) [Per J. Austria-Martinez, Third Division]. In this case, the accused was convicted of
violating the Gun Ban but was acquitted of violating Presidential Decree No. 1866 (Id. at 634). This court
held: "While the prosecution was able to establish the fact that the subject firearm was seized by the police
from the possession of the petitioner, without the latter being able to present any license or permit to
possess the same, such fact alone is not conclusive proof that he was not lawfully authorized to carry such
firearm. In other words, such fact does not relieve the prosecution from its duty to establish the lack of a
license or permit to carry the firearm by clear and convincing evidence, like a certification from the
government agency concerned" (Id. at 631).

161
Id. at 633. Abenes involved the Commission on Elections' imposed Gun Ban through Rep. Act No. 7166
(1991), sec. 32, which is substantially the same with COMELEC Resolution No. 7764 (2006), sec. 2, in
relation to Batas Blg. 881 (1985), sec. 261.

162
Id. at 632.

163
536 Phil. 998 (2006) [Per J. Ynares-Santiago, First Division].

164
Id. at 1003-1004.

165
G.R. Nos. 102009-10, July 6, 1994, 233 SCRA716 [Per J. Regalado, Second Division].

166
Id. at 726-727.

167
Id. at 720-721.

168
Id. at 726-728.

Del Rosario v. People, 410 Phil. 642, 664 (2001) [Per J. Pardo, First Division].
169

170
Id.

People v. De Gracia, G.R. Nos. 102009-10, July 6, 1994, 233 SCRA 716, 727 [Per J. Regalado, Second
171

Division].
172
Rollo, p. 29 Regional Trial Court’s Consolidated Judgment.

173
502 Phil. 318 (2005) [Per J. Garcia, En Banc].

174
Id. at 332.

175
Id. at 323-324.

176
Id. at 335.

177
Id. at 331-334.

178
584 Phil. 241 (2008) [Per J. Corona, First Division].

179
Id. at 245.

180
Batas Blg. 881 (1985), sec. 264 provides

SECTION 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. Any political party found guilty shall be sentenced to pay a
fine of not less than ten thousand pesos, which shall be imposed upon such party after criminal action has
been instituted in which their corresponding officials have been found guilty.

See Uriarte v. People, 540 Phil. 477, 501 (2006) [Per J. Callejo, Sr., First Division] and People v.
181

Simon, G.R. No. 93028, July 29, 1994, 234 SCRA 555, 579-581 [Per J. Regalado, En Banc].

182
ActNo. 4103(1933), sec. 1, as amended by Act No. 4225 (1935), sec. 1, provides

SEC. 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its
amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of
which shall be that which, in view of the attending circumstances, could be properly imposed under the rules
of the said Code, and to a minimum which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall
sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the
same.

See Escalante v. People, G.R. No. 192727, January 9, 2013, 688 SCRA 362, 374 [Per J. Reyes, First
Division].

183
In Abenes v. Court of Appeals, 544 Phil. 614, 634 (2007) [Per J. Austria-Martinez, Third Division], this
court imposed the indeterminate sentence of one (1) year of imprisonment as minimum to two (2) years of
imprisonment as maximum. In Madrigal v. People, 584 Phil. 241, 245 (2008) [Per J. Corona, First Division],
the accused was "sentenced to suffer the indeterminate penalty of imprisonment from one year as minimum
to three years as maximum[.]"

184
As amended by Rep. Act No. 10592 (2012), sec. 1.

People v. Oloverio, G.R. No. 211159, March 28, 2015

185

<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/march2015/211159.pdf>17-18
[Per J. Leonen, Second Division]

Agote v. Judge Lorenzo, 502 Phil. 318, 335 (2005) [Per J. Garcia, En Banc].
186

FIRST DIVISION

G.R. No. 192727 January 9, 2013

RAUL B. ESCALANTE, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES and THEHONORABLECOURTOF APPEALS, FORMER
SPECIAL TWENTIETH DIVISION and EIGHTEENTH DIVISION, COURT OF APPEALS, CEBU
CITY, Respondents.

RESOLUTION

REYES, J.:

Nature of the Petition

Before this Court is a Petition for Certiorari under Rule 65 of the Rules of Court seeking to annul and
set aside the Decision1 dated June 24, 2008 and Resolution2 dated March 4, 2009 issued by the
Court of Appeals (CA) in CA-G.R. CR No. 27673 which, inter alia, affirmed the conviction of Raul B.
Escalante (petitioner) for violation of Section 261 (q) of Batas Pambansa Blg. 881 (BP 881),
otherwise known as the "Omnibus Election Code of the Philippines".

The Antecedent Facts

The instant case stemmed from two (2) separate Informations that were filed with the Regional Trial
Court (RTC) of Calbayog City, Samar against the petitioner, charging him for violation of Section 261
(q) of BP 881 (Election Gun Ban) and Section 1 of Presidential Decree (P.D.) No.

1866,3 as amended (Illegal Possession of Firearms and Ammunitions). The first Information4 dated
August 23, 1995, docketed as Criminal Case No. 2074, reads:

The undersigned Prosecutor II of Samar accuses MAYOR RAUL ESCALANTE for VIOLATION OF
SECTION 261, PARAGRAPH (Q) OF THE OMNIBUS ELECTION CODE, AS AMENDED BY
SECTION 32, REPUBLIC ACT 7166, committed as follows:

That on or about the 3rd day of April, 1995, at about 11:00 o’clock in the evening, at Barangay
Biasong, Municipality of Almagro, Province of Samar, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, during the Election Period of the May 8, 1995 Election,
did then and there wilfully, unlawfully and feloniously have in his possession, custody and control
one (1) .45 caliber pistol, without first having obtained the proper license and/or permit from the
Comelec.

CONTRARY TO LAW.5

The second Information6 dated June 16, 2000, docketed as Criminal Case No. 3824, reads:

The undersigned Assistant Provincial Prosecutor I of Samar accuses Raul Escalante for Illegal
Possession of Firearm (P.D. 1866), as amended by Republic Act No. 8294, committed as follows:

That on or about the 3rd day of April, 1995, at nighttime, at Barangay Biasong, Municipality of
Almagro, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, with deliberate intent to possess and without being authorized by law, did
then and there wilfully, unlawfully, feloniously and illegally have in his possession, custody and
control one (1) caliber .45 pistol loaded with live ammunition, in a public place outside of his
residence, without first securing the necessary permit to possess the same from the competent
authority, as required by law.

CONTRARY TO LAW.7
The two cases were consolidated and jointly tried by the RTC as the crimes charged against the
petitioner arose from the same incident. Upon arraignment, the petitioner pleaded not guilty to both
charges.8

During the pre-trial conference, the petitioner admitted the following facts: first, that he was not
issued any license to possess any firearm; and second, that April 3, 1995 fell within the election gun
ban period imposed by the Commission on Elections (COMELEC).9

Trial on the merits ensued thereafter.

The Prosecution’s Version

The petitioner, then the Municipal Mayor of Almagro, Samar, was the guest of honor during the fiesta
celebration in Barangay Biasong that was held on April 3, 1995. Towards the end of the program,
the emcee called on the petitioner and Ina Rebuya to crown the fiesta queen. Thereupon, the
petitioner went to fetch Ina Rebuya who was seated together with Atty. Felipe Maglana, Jr. (Atty.
Maglana) and the other members of the rival political party. It was then that Atty. Maglana noticed
that the petitioner had a firearm tucked on his waist.10

After the crowning ceremony, the petitioner delivered a speech, stating that he had never won at
Barangay Biasong in any election. This caught the ire of a group of supporters of the rival political
party who then shouted invectives at the petitioner.11

Shamed by the insults hurled at him, the petitioner cut short his speech and, thereafter, went back to
his table. However, the mocking continued. Thereupon, the petitioner, with the loaded firearm in
hand, went to the table occupied by his political rivals. He then stared at Atty. Maglana and
thereafter fired a shot upwards, causing the crowd to scamper for safety. The petitioner’s
bodyguards immediately took hold of his hand to prevent him from firing another shot. Consequently,
Ali Prudenciado, a former policeman and then, a kagawad, disarmed the petitioner.12

The following morning, the Chief of Police of Almagro, Samar entered the incident into the police
blotter as an "accidental firing".13

The Defense’s Version

The petitioner denied that he was in possession of a firearm during the April 3, 1995 fiesta
celebration in Barangay Biasong. He claimed that, while he was delivering his speech therein, a
group of people were shouting insults at him. Not wanting to aggravate the situation, the petitioner
abruptly ended his speech and went to the group to ask them not to disturb the festivities.14

The group, however, continued to mock the petitioner, prompting PO3 Conrado Unajan (PO3
Unajan) to draw his firearm from his holster to pacify the unruly crowd. When the petitioner saw this,
he tried to take the firearm away from PO3 Unajan and, in the process, a shot was accidentally fired.
Thereafter, the petitioner was able to take hold of the firearm and, together with PO3 Unajan, went
back to his table. He then returned the firearm to PO3 Unajan.15

The RTC’s Decision

On May 23, 2003, the RTC rendered a judgment16 finding the petitioner guilty beyond reasonable
doubt of the crimes of violation of election gun ban and illegal possession of firearms and
ammunitions. The dispositive portion of the RTC’s decision reads:

WHEREFORE AND IN VIEW OF THE FOREGOING, judgment is hereby rendered finding accused,
Raul Escalante, GUILTY beyond reasonable doubt of the crimes of Illegal Possession of Firearm
and Ammunition and for Violation of Section 261, Par. (q) of the Omnibus Election Code for which he
is hereby sentenced (1) in Criminal Case No. 3824 to an Indeterminate Penalty of imprisonment
ranging from FOUR (4) YEARS and TWO (2) MONTHS, as minimum, to SIX (6) YEARS, as
maximum, both of prision correccional, and to pay a fine of [P]15,000.00 and to pay the costs, and
(2) in Criminal Case No. 2074, he is hereby sentenced to a straight penalty of ONE (1) YEAR
imprisonment and to pay the costs.

IT IS SO ORDERED.17

The RTC found the testimonies of the prosecution witnesses as to the petitioner’s possession of a
firearm during the said incident to be categorical and straightforward and should thus be accorded
full weight and credit. The RTC likewise disregarded the petitioner’s claim that it was PO3 Unajan
who was in possession of the firearm, asserting that the same is belied by the respective affidavits
executed by the officials of Barangay Biasong and the report executed by the Chief of Police of
Almagro.

The petitioner appealed to the CA, asserting that the RTC erred in convicting him for the crimes
charged since the prosecution failed to establish the following: (1) the existence of the firearm which
is the corpus delicti; and (2) the absence of a license or permit for the firearm.

The CA’s Decision

On June 24, 2008, the CA rendered the herein assailed decision18 which affirmed in toto the May 23,
2003 Judgment of the RTC. The CA held that the prosecution was able to establish the existence of
the firearm notwithstanding that it was not presented as evidence. It pointed out that the
straightforward and positive testimonies of the prosecution witnesses on the petitioner’s possession
of a firearm during the April 3, 1995 fiesta celebration in Barangay Biasong and the circumstances
surrounding it had amply established the corpus delicti. In any case, the CA asserted that in an
indictment for illegal possession of firearms and ammunitions and violation of election gun ban, the
production of the firearm itself is not required for conviction.

Further, the CA held that there was no necessity on the part of the prosecution to prove that the
petitioner had no license or permit to possess a firearm since the same had already been admitted
by the petitioner during the trial.

The petitioner sought a reconsideration of the June 24, 2008 Decision of the CA, maintaining that
the prosecution failed to substantiate the elements of the crimes charged against him. Additionally,
the petitioner averred that Criminal Case No. 3824 for illegal possession of firearms and
ammunitions should be dismissed pursuant to the ruling of this Court in Agote v. Judge
Lorenzo19 which declared that an accused is not liable for illegal possession of firearm if the firearm
was used in the commission of an offense such as a violation of the election gun ban.

On March 4, 2009, the CA issued a resolution20 which partly granted the petitioner’s motion for
reconsideration, the decretal portion of which reads:

WHEREFORE, the Motion for Reconsideration dated July 18, 2008 is PARTLY GRANTED. Criminal
Case No. 3824 is DISMISSED and accused-appellant’s conviction in Criminal Case No. 2074 for
Violation of Section 261, par. (q) of the Omnibus Election Code, AFFIRMED.

SO ORDERED.21

The CA ruled that under prevailing jurisprudence there can be no separate offense of simple illegal
possession of firearm if the unlicensed firearm is used in the commission of any crime. Considering
that the petitioner was convicted of violation of election gun ban, the CA held that he can no longer
be convicted for illegal possession of firearm. Nevertheless, the CA found no reason to reverse the
conviction of the petitioner for violation of election gun ban.

On April 7, 2009, the petitioner, with leave of court, filed a "Second Partial Motion for
Reconsideration of Judgment for Violation of the Omnibus Election Code only". On May 5, 2010, the
CA issued a resolution denying the second partial motion for reconsideration filed by the petitioner.

Undaunted, the petitioner filed the instant petition.

Issue

The petitioner submits a lone issue for this Court’s resolution:

WHETHER THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT RESOLVED TO DENY THE
APPEAL FILED BY THE PETITIONER DESPITE THE FACT THAT ONE OF THE ESSENTIAL
ELEMENTS OF THE OFFENSE OF VIOLATION OF COMELEC GUN BAN IS ABSENT.22

The Court’s Ruling

The petition is dismissed.

The petitioner committed a serious procedural faux pas by filing before this Court a petition for
certiorari under Rule 65, when the proper remedy should have been a petition for review on certiorari
under Rule 45 of the Rules of Court.

Decisions, final orders or resolutions of the CA in any case, i.e., regardless of the nature of the
action or proceedings involved, may be appealed to this Court by filing a petition for review under
Rule 45, which would be but a continuation of the appellate process over the original case.23

The period to file a petition for review on certiorari is 15 days from notice of the decision appealed
from or of the denial of the petitioner’s motion for reconsideration.24

Here, the petitioner received a copy of the CA’s May 5, 2010 Resolution, which denied his second
motion for reconsideration, on May 20, 2010, thus, he only had until June 4, 2010 to file a petition for
review on certiorari with this Court. This he failed to do.

"The perfection of an appeal in the manner and within the period prescribed by law is mandatory.
Failure to conform to the rules regarding appeal will render the judgment final and executory and,
hence, unappealable."25 Thus, the petitioner’s failure to file a petition for review under Rule 45 within
the reglementary period rendered the CA’s June 24, 2008 Decision, as modified by its March 4,
2009 Resolution, final and executory.

It is at once evident that the instant certiorari action is merely being used by the petitioner to make
up for his failure to promptly interpose an appeal from the CA’s June 24, 2008 Decision and March
4, 2009 Resolution. "However, a special civil action under Rule 65 cannot cure petitioner’s failure to
timely file a petition for review on Certiorari under Rule 45 of the Rules of Court."26 It is settled that a
special civil action for certiorari will not lie as a substitute for the lost remedy of appeal, especially if
such loss or lapse was occasioned by one’s own neglect or error in the choice of remedies.27

In any case, assuming arguendo that a petition for certiorari is the proper remedy, the petition would
still be dismissed.
The petitioner claimed that the CA gravely abused its discretion when it affirmed his conviction for
violation of election gun ban considering that the fact of his possession of the firearm was not
sufficiently established. He averred that the firearm, alleged to be possessed by him during the
incident, was in fact in the possession of PO3 Unajan and that it was only when he wrestled the
firearm away from the latter that he was able to possess it. His possession of the firearm, the
petitioner contends, is merely incidental and would not suffice to convict him for violation of election
gun ban.

Basically, the petitioner asks this Court to overturn the factual findings of the RTC and the CA for
alleged misapprehension of evidence. However, "it is settled that questions of fact cannot be raised
in an original action for certiorari."28 Only established or admitted facts can be considered.29

That the petitioner was in possession of a firearm with live ammunition outside of his residence
within the period of the election gun ban imposed by the COMELEC sans authority therefor is a
finding of fact by the RTC and the CA which cannot be disturbed by this Court in this original action
for certiorari.

Moreover, "it has been held time and again that factual findings of the trial court, its assessment of
the credibility of witnesses and the probative weight of their testimonies and the conclusions based
on these factual findings are to be given the highest respect. As a rule, the Court will not weigh anew
the evidence already passed on by the trial court and affirmed by the CA."30 Here, the Court sees no
compelling reason to depart from this rule.

The Court notes, however, that the lower courts erred in imposing the applicable penalty against the
petitioner. Finding the petitioner guilty of the offense of violation of election gun ban, the RTC
imposed upon him the straight penalty of one (1) year imprisonment. The penalty imposed by the
RTC was affirmed by the CA. Section 264 of BP 881, in part, reads:

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. x x x. (Emphasis ours)

On the other hand, Section 1 of the Indeterminate Sentence Law31 provides:

Sec. 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal
Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the
maximum term of which shall be that which, in view of the attending circumstances, could be
properly imposed under the rules of the said Code, and the minimum which shall be within the range
of the penalty next lower to that prescribed by the Code for the offense; and if the offense is
punished by any other law, the court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not
be less than the minimum term prescribed by the same. 1âwphi 1

Applying the Indeterminate Sentence Law, the imposable penalty for violation of the election gun
ban should have a maximum period, which shall not exceed six (6) years, and a minimum period
which shall not be less than one (1) year. Accordingly, the RTC and the CA erred in imposing a
straight penalty of one (1) year imprisonment against the petitioner.

Nevertheless, considering that the CA’s June 24, 2008 Decision and March 4, 2009 Resolution had
already attained finality on account of the petitioner’s failure to timely file a petition for review on
Certiorari under Rule 45, the Court may no longer modify the penalty imposed by the lower courts no
matter how obvious the error may be. "Under the doctrine of finality of judgment or immutability of
judgment, a decision that has acquired finality becomes immutable and unalterable, and may no
longer be modified in any respect, even if the modification is meant to correct erroneous conclusions
of fact and law, and whether it be made by the court that rendered it or by the Highest Court of the
land."32

WHEREFORE, in consideration of the foregoing disquisitions, the petition is DISMISSED. The

Decision dated June 24, 2008 and Resolution dated March 4, 2009 of the Court of Appeals in CA-
G.R. CR No. 27673 are hereby AFFIRMED.

SO ORDERED.

BIENVENIDO L. REYES
Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice
Chairperson

TERESIT A J. LEONARDO-DE CASTRO LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Resolution had been reached in consultation before the case was assigned to the writer of the
opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

1Penned by Associate Justice Amy C. Lazaro-Javier, with Associate Justices Francisco P.

Acosta and Fiorito S. Macalino. concurring; rollo, pp. 19-33.

2 Id. at 35-42.

3Decree Codifying the Laws on Illegal/Unlawful Possession, Manufacture, Dealing In

Acquisition or Disposition of Firearms, Ammunition or Explosives.

4 Rollo, pp. 43-44.

5 Id. at 43.

6 Id. at 46-47.
7 Id. at 46.

8 Id. at 20.

9 Id. at 20-21.

10 Id. at 21.

11 Id.

12 Id. at 21-22.

13 Id. at 22.

14 Id.

15 Id. at 22-23.

16 Id. at 49-59.

17 Id. at 59.

18 Supra note 1.

19 502 Phil. 318 (2005).

20 Supra note 2.

21 Id. at 42.

22
Rollo, p. 9.

23 See Fortune Guarantee and Ins. Corp. v. Court of Appeals, 428 Phil. 783, 791 (2002).

24 Rules of Court, Rule 45, Section 2.

Lapulapu Devt. & Housing Corp. v. Group Mgt. Corp., 437 Phil. 297, 314 (2002); citation
25

omitted.

26 Talento v. Escalada, Jr., G.R. No. 180884, June 27, 2008, 556 SCRA 491, 498.

27See China Banking Corporation v. Cebu Printing and Packaging Corporation, G.R. No.
172880, August 11, 2010, 628 SCRA 154, 166.

28Korea Technologies Co., Ltd. v. Lerma, G.R. No. 143581, January 7, 2008, 542 SCRA 1,
33; citation omitted.

29 Ramcar, Inc. v. Hi-Power Marketing, 527 Phil. 699, 708 (2006); citation omitted.

People v. Mamaruncas, G.R. No. 179497, January 25, 2012, 664 SCRA 182, 199; citation
30

omitted.
 31 Act No. 4103, as amended by Act No. 4225.

32FGU Insurance Corporation v. Regional Trial Court of Makati City, Branch 66, G.R. No.
161282, February 23, 2011, 644 SCRA 50, 56.

SECOND DIVISION

[G.R. No. 114267. December 17, 1999]

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

DORIMON, accused-appellant.

DECISION
QUISUMBING, J.:

On appeal is the decision dated January 24, 1994, of the Regional Trial Court of Sindangan,
Zamboanga del Norte, Branch 11, in Criminal Case No. S-2180 convicting accused-appellant
Gilbert Dorimon[1] of Presidential Decree No. 1866,[2] sentencing him to reclusion perpetua, and
ordering the forfeiture of his .22 caliber paltik revolver in favor of the government.
At the time of the incident, appellant was an eighteen (18) year-old senior high school student
at the Salug National High School of Salug, Zamboanga del Norte. Found in his possession was a
.22 cal. paltik, that he allegedly used to threaten a classmate who had defeated him in a basketball
game at school.[3]
The pertinent facts are as follows:
On August 7, 1992, at around 9:30 A.M., Esnani Bontigao, a high school student, personally
reported to the Chief of Police of the Philippine National Police (PNP), Salug, Zamboanga del
Norte, that appellant had threatened him with a gun.[4] Acting on the information, the Chief of
Police dispatched a team composed of SPO3 Marcelino Tamala, SPO2 Ernesto Lagare and SPO3
Malik Sapihi to proceed to the store near the school to apprehend appellant. Upon reaching the
store, SPO3 Tamala approached appellant whom he knew since the latter was a relative of his wife,
and asked him whether he was carrying a gun.[5] Appellant answered in the affirmative but
explained that he only found the gun at the back of the school.[6]Thereafter, appellant was brought
to the police station where SPO3 Sapihi discovered a .22 cal. paltik revolver, which fell from
appellants waist when appellant was frisked.[7]
On August 10, 1992, the Chief of Police of Salug, Zamboanga del Norte filed a Complaint[8]for
Illegal Possession with the Municipal Circuit Trial Court of Salug-Godod, Salug, Zamboanga del
Norte against appellant.
On August 24, 1992, after conducting the preliminary investigation, Municipal Circuit Trial
Judge Ig H. Aricheta issued a Resolution,[9] which found a prima facie case for Illegal Possession,
fixed the bail at P200,000.00, and ordered the records of the case forwarded to the Office of the
Provincial Prosecutor.
 On September 16, 1992, Second Assistant Provincial Prosecutor Valeriano B. Lagula affirmed
the aforesaid Resolution but lowered the recommended bail to P50,000.00.[10]
On October 8, 1992, Provincial Prosecutor Rodolfo T. Mata filed the following
Information[11] for Illegal Possession of Firearm with the Regional Trial Court:

The undersigned, Provincial Prosecutor, accuses GILBERT DORIMON of the crime

of ILLEGAL POSSESSION OF FIREARM, committed as follows:

That, in the morning, on or about the 7th day of August, 1992, in the Municipality of
Salug, Zamboanga del Norte, within the jurisdiction of this Honorable Court, the said
accused, did then and there wilfully, unlawfully and feloniously have in his possession
and under his custody and control one revolver caliber 22 homemade (paltic), bring
and carry it outside his residence without the necessary license or permit from the
proper authorities and neither is he exempted from liability for carrying said firearm
outside his residence.

CONTRARY TO LAW. (Violation of P.D. 1866).

Dipolog City (for Sindanganan, Zamboanga del Norte).

On May 5, 1993, upon arraignment, appellant, duly assisted by counsel de parte Atty. Reubin
Maraon, entered a plea of not guilty.
During trial, the prosecution presented two of the arresting officers as its witnesses, namely,
SPO3 Marcelino Tamala and SPO2 Ernesto Lagare.Both identified the .22 cal. paltik revolver
(Exhibit A) recovered from appellant.[12]
Appellant testified on his behalf and denied the charges. He testified that on August 7, 1992,
at about 9:00 o clock in the morning, he was in a store in front of his school when three (3)
policemen whom he identified as SPO3 Tamala, SPO2 Lagare and SPO3 Sapihi, approached
him.[13] SPO2 Lagare told him that they wanted to bring him to the Office of the Chief of Police. He
was not shown any warrant of arrest nor search warrant. He stood up to enter the school campus
but SPO3 Sapihi aimed his armalite at him so that he was forced to go with them to the Office of
the Station Commander. At the Office of the Station Commander, SPO3 Tamala searched his body
but recovered nothing from him. He denied any knowledge of the firearm presented as Exhibit
A.[14]
On January 28, 1994, the trial court rendered a decision[15] convicting appellant of the crime
charged. The dispositive portion of the decision reads:

WHEREFORE, the Court finds accused, Gilbert Dorimon, guilty beyond reasonable
doubt of the crime of Illegal Possession of Firearm, punishable under Section 1 of
P.D. 1866, hereby sentences him the penalty of Reclusion Perpetua. Exh. A forfeited
in favor of the Government.

Hence, the present appeal.

In his Brief, appellant assigns the sole error that:[16]
THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-
APPELLANT OF THE CRIME AS CHARGED IN THE INFORMATION DESPITE
FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.

Additionally, appellant contends that even granting that he possessed the firearm, his arrest
without a warrant violated his constitutional right against unlawful searches and seizures, and as a
result, the evidence obtained in violation thereof should be inadmissible for any purpose. Appellant
insists that before he was picked up by the policemen, they should have first secured a warrant of
arrest or search warrant. The arrest being unlawful, the subsequent search on the body of appellant
should also be held unlawful.
The Office of the Solicitor General maintains, however, that appellant was arrested with the
firearm in flagrante delicto; when asked whether he had a firearm, he admitted that he possessed
one, which he found at the back of the school.[17] Hence, the warrantless arrest and the incidental
search on his body were both valid.
According to the OSG, mere possession of the firearm consummated the crime under P.D.
1866. Although appellant denied ownership of the gun, what is essential for purposes of illegal
possession is control or dominion over the use of the weapon of the holder. Absent any ill motive
on the part of the police officers in testifying against appellant, their testimonies are entitled to full
faith and credit.
As to the sufficiency of evidence to convict, however, we are constrained by the factual
circumstances in this case to differ from the OSGs contention that all the elements of the crime of
illegal possession were duly proven.
In cases involving illegal possession of firearm, the requisite elements are: (a) the existence
of the subject firearm and (b) the fact that the accused who owned or possessed the firearm does
not have the corresponding license or permit to possess.[18]
The first requisite is beyond dispute as the subject firearm was recovered from the person of
accused, identified in court as the same firearm, and offered in evidence during trial.
As to the second requisite, we have held that the testimony of a representative of, or a
certification from, the Philippine National Police (PNP) Firearms and Explosives Unit that
appellant was not a licensee of the said firearm would suffice to prove beyond reasonable doubt
the second element of the crime of illegal possession.[19] The non-possession of a license is a
negative fact, which constitutes an essential ingredient of the offense of illegal possession, and it
is the duty of the prosecution not only to allege it but also to prove it beyond reasonable doubt.[20]
In this case, while the Information alleged that the appellant did not possess any license or
permit to carry, such fact was not established during trial.The only reference to the non-possession
of a license or permit of the appellant was when the trial judge propounded clarificatory questions
to SPO3 Tamala and SPO2 Lagare in this wise:
COURT TO SPO3 MARCELINO TAMALA
Q: And at the time when the firearm was recovered in the possession of the herein accused he was not
able to present any permit to carry?
A: No, sir.[21]
xxx
 COURT TO SPO2 ERNESTO LAGARE
Q: Do you mean to say actually Sapihi did not recover said firearm because it fall? (sic)
A: At the time Sapihi pulled up the T-shirt that was the time the firearm fall. In the act of raising the
shirt the firearm fall down. (sic)
Q: And the firearm dropped from the waist line of the herein accused?
A: Yes, sir.
Q: And the accused fails to show that he has an authority? (sic)
A: Yes, sir.
Q: And he is not a member of Bantay-dagat or bantay-bayan?
A: No, sir.[22]
We find the above clarificatory questions, in the absence of any other testimonial or
documentary evidence, insufficient to prove the essential element of non-possession of the
necessary license or permit. It does not appear that SPO3 Tamala and SPO2 Lagare are duly
authorized representatives of the PNP Firearms and Explosives Unit, and neither was a certificate
from said office presented in evidence. While no license or permit may be issued for a paltik, we
have already ruled that this mere fact alone does not dispense with proof that it is
unlicensed.[23] Indeed, the prosecution failed to present this vital piece of evidence and the trial court overlooked
such requirement and proceeded to convict the accused.

While it is true that the appellant did not raise the issue of failure of the prosecution to prove
his non-possession of a license to possess a firearm, the rule is well-settled that in a criminal case,
an appeal to the Court throws the whole case open for review, and it becomes the duty of the Court
to correct such errors as may be found in the judgment appealed from, whether they are made the
subject of the assignment of error or not.[24] Moreover, well established is the principle that
conviction of a person for an alleged offense should not rest on the weakness of the defense but on
the strength of the prosecutions evidence. Accordingly, in this case it is proper for the Court to
consider in favor of appellant the absence of proof of one element in the charge of illegal
possession of firearm, that is, the certificate from the PNP Firearms and Explosive Unit that he
had no license or permit to possess it.
WHEREFORE, for insufficiency of evidence to prove the guilt of the accused beyond
reasonable doubt, the decision of the Regional Trial Court of Sindangan, Zamboanga del Norte,
Branch 11, in Criminal Case No. S-2180 is REVERSED and SET ASIDE. Accused-appellant
Gilbert Dorimon is hereby ACQUITTED of the charge of Illegal Possession of Firearm. He is
ordered RELEASED immediately unless there are other legal grounds for his continued detention.
No pronouncement as to costs.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

[1]
The Information, Records, and Decision did not indicate his middle name.1 for violation of Section
[2]
CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE, DEALING IN,
ACQUISITION OR DISPOSITION, OF FIREARMS, AMMUNITION OR EXPLOSIVES OR INSTRUMENTS
USED IN THE MANUFACTURE OF FIREARMS, AMMUNITION OR EXPLOSIVES; AND IMPOSING
STIFFER PENALTIES FOR CERTAIN VIOLATIONS THEREOF AND FOR RELEVANT PURPOSES. P.D. No.
1866 has already been amended by Republic Act No. 8294, which took effect on July 6, 1997; Pastrano v. Court of
Appeals, 281 SCRA 287, 296 (1997).
[3]
Sworn Statement of Esnani Bontigao, Records, p. 3; Records of Preliminary Examination, Records, p. 5.
[4]
TSN, July 14, 1993, pp. 3-4, 11.
[5]
Ibid.
[6]
Id. at 4, 14.
[7]
Id. at 4.
[8]
Records, p. 1.
[9]
Id. at 16-17.
[10]
Id. at 20-22.
[11]
Id. at 23.
[12]
TSN, July 14, 1993, pp. 5, 14-15.
[13]
TSN, November 17, 1993, p. 3-4.
[14]
Id. at 4-5.
[15]
Records, p. 70.
[16]
Rollo, p. 30.
[17]
TSN, July 14, 1993, p. 4.
[18]
People v. Bansil, G.R. No.120163, March 10, 1999, p. 11; Gonzales v. Court of Appeals, 277 SCRA 518, 525
(1997); People v. Lualhati, 234 SCRA 325, 332 (1994).
[19]
People v. Narvasa, G.R. No. 128618, November 16, 1998, p. 16; People v. Villanueva, 275 SCRA 489, 496 (1997);
Mallari v. Court of Appeals, 265 SCRA 456, 465 (1996).
[20]
People v. Villanueva, 275 SCRA 489, 495 (1997).
[21]
TSN, July 14, 1993, p. 9.
[22]
Id. at 16.
[23]
Mallari v. Court of Appeals, 265 SCRA 456, 465 (1996); People v. Evangelista, 256 SCRA 611, 627-628 (1996);
People v. Ramos, 222 SCRA 557, 578 (1993).
[24]
People v. Tiozon, 198 SCRA 368, 387 (1991); People v. Borbano, 76 Phil. 702, 708 (945) People v. Olfindo, 47
Phil. 1, 5 (1924).

SECOND DIVISION

January 11, 2016

G.R. No. 209387

ERWIN LIBO-ON DELA CRUZ, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

LEONEN, J.:
Routine baggage inspections conducted by port authorities, although done without search warrants,
are not unreasonable searches per se. Constitutional provisions protecting privacy should not be so
literally understood so as to deny reasonable safeguards to ensure the safety of the traveling public.

For resolution is a Petition for Review on Certiorari1 assailing the Decision2 dated September 28,
2012 and the Resolution3 dated August 23, 2013 of the Court of Appeals, Cebu City.4 The Court of
Appeals affirmed5 the trial court’s Judgment6 finding petitioner Erwin Libo-on Dela Cruz (Dela Cruz)
guilty beyond reasonable doubt of possessing unlicensed firearms under Commission on Elections
Resolution No. 77647 in relation to Section 2618 of Batas Pambansa Blg. 8819 during the 2007
election period.10

Dela Cruz was an on-the-job trainee of an inter-island vessel.11 He frequently traveled, "coming back
and forth taking a vessel."12 At around 12:00 noon of May 11, 2007, Dela Cruz was at a pier of the
Cebu Domestic Port to go home to Iloilo.13 While buying a ticket, he allegedly left his bag on the floor
with a porter.14 It took him around 15 minutes to purchase a ticket.15

Dela Cruz then proceeded to the entrance of the terminal and placed his bag on the x-ray scanning
machine for inspection.16 The operator of the x-ray machine saw firearms inside Dela Cruz’s bag.17

Cutie Pie Flores (Flores) was the x-ray machine operator-on-duty on May 11, 2007.18 She saw the
impression of what appeared to be three (3) firearms inside Dela Cruz’s bag.19 Upon seeing the
suspected firearms, she called the attention of port personnel Archie Igot (Igot) who was the
baggage inspector then.20

Igot asked Dela Cruz whether he was the owner of the bag.21 Dela Cruz answered Igot in the
affirmative and consented to Igot’s manual inspection of the bag.22

"Port Police Officer Adolfo Abregana [(Officer Abregana)] was on duty at the terminal of the Cebu
Domestic Port in Pier 1-G when his attention was called by . . . Igot."23 Igot told Officer Abregana that
there were firearms in a bag owned by a certain person.24 Igot then pointed to the person.25 That
person was later identified as Dela Cruz.26

Dela Cruz admitted that he was owner of the bag.27 The bag was then inspected and the following
items were found inside: three (3) revolvers; NBI clearance; seaman’s book; other personal items;
and four (4) live ammunitions placed inside the cylinder.28 When asked whether he had the proper
documents for the firearms, Dela Cruz answered in the negative.29

Dela Cruz was then arrested and informed of his violation of a crime punishable by law.30 He was
also informed of his constitutional rights.31

In the Information dated November 19, 2003, Dela Cruz was charged with violation of Republic Act
No. 8294 for illegal possession of firearms:32

Criminal Case No. CBU -80084

That on or about the 11th day of May 2007, at about 12:45 p.m. in the City of Cebu, Philippines, and
within the jurisdiction of this Honorable Court, the said accused, with the deliberate intent and
without being authorized by law, did then and there possess and carry outside his residence one (1)
Cal. 38 Simith [sic] & Wesson revolver without serial number; one (1) .22 Smith & Wesson Magnum
revolver without serial number; one (1) North American Black Widow magnum revolver without serial
number and four rounds of live ammunitions for cal. 38 without first securing the necessary license
to possess and permit to carry from the proper authorities.

CONTRARY TO LAW.33
Subsequently, another Information was filed charging Dela Cruz with the violation of Commission on
Elections Resolution No. 7764, in relation to Section 261 of Batas Pambansa Blg. 881:34

Criminal Case No. CBU 80085

That on or about the 11th day of May 2007, at about 12:45 in the afternoon, which is within the
election period for the May 14, 2007 National and Local Elections, in the City of Cebu, Philippines
and within the jurisdiction of this Honorable Court, the said accused, with deliberate intent, did then
and there possess and carry outside his residence the following:

One (1) cal. .38 Simith [sic] & Wesson revolver without serial number;

One (1) cal. .22 Smith & Wesson Magnum revolver without serial number;

One (1) North American Black Widow magnum revolver without serial number and four (4)
rounds of live ammunitions for cal. 38.

CONTRARY TO LAW.35

Dela Cruz entered a plea of not guilty to both charges during arraignment.36

After trial, Branch 12 of the Regional Trial Court, Cebu City found Dela Cruz guilty beyond
reasonable doubt of violating the Gun Ban under Commission on Elections Resolution No. 7764, in
relation to Section 261 of Batas Pambansa Blg. 881 in Criminal Case No. CBU 80085.37 Dela Cruz
was sentenced to suffer imprisonment of one (1) year with disqualification from holding public office
and the right to suffrage.38

According to the trial court, the prosecution was able to prove beyond reasonable doubt that Dela
Cruz committed illegal possession of firearms.39 It proved the following elements: "(a) the existence
of the subject firearm and (b) the fact that the accused who owned or possessed it does not have the
license or permit to possess the same."40 The prosecution presented the firearms and live
ammunitions found in Dela Cruz’s possession.41 It also presented three (3) prosecution witnesses
who testified that the firearms were found inside Dela Cruz’s bag.42 The prosecution also presented a
Certification that Dela Cruz did not file any application for license to possess a firearm, and he was
not given authority to carry a firearm outside his residence.43

The trial court also held that the search conducted by the port authorities was reasonable and, thus,
valid:44

Given the circumstances obtaining here, the court finds the search conducted by the port authorities
reasonable and, therefore, not violative of the accused’s constitutional rights. Hence, when the
search of the bag of the accused revealed the firearms and ammunitions, accused is deemed to
have been caught in flagrante delicto, justifying his arrest even without a warrant under Section 5(a),
Rule 113 of the Rules of Criminal Procedure. The firearms and ammunitions obtained in the course
of such valid search are thus admissible as evidence against [the] accused.45

The trial court did not give credence to Dela Cruz’s claim that the firearms were "planted" inside his
bag by the porter or anyone who could have accessed his bag while he was buying a
ticket.46 According to the trial court, Dela Cruz’s argument was "easy to fabricate, but terribly difficult
to disprove."47 Dela Cruz also did not show improper motive on the part of the prosecution witnesses
to discredit their testimonies.48

The trial court dismissed the case for violation of Republic Act No. 8294.49 It held that "Republic Act
No. 8294 penalizes simple illegal possession of firearms, provided that the person arrested
committed ‘no other crime.’"50Dela Cruz, who had been charged with illegal possession of firearms,
was also charged with violating the Gun Ban under Commission on Elections Resolution No. 7764.51

The dispositive portion of the trial court’s Consolidated Judgment reads:

WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of violation of
COMELEC Resolution No. 7764 in relation to Section 261 of BP Blg. 881 in Criminal Case No. CBU-
80085, and hereby sentences him to suffer an imprisonment for a period of one (1) year, and to
suffer disqualification to hold public office and deprivation of the right to suffrage.

While Criminal Case No. CBU-80084 for Violation of RA 8294 is hereby DISMISSED. Accordingly,
the cash bond posted by accused therein for his provisional liberty is hereby ordered cancelled and
released to said accused.

The subject firearms (Exhs. "H", "I" & "J"), and the live ammunitions (Exhs. "K to K-2"") shall,
however, remain in custodia legis for proper disposition of the appropriate government agency.

SO ORDERED.52 (Emphasis in the original)

On appeal, the Court of Appeals affirmed the trial court’s Judgment.53 It held that the defense failed
to show that the prosecution witnesses were moved by improper motive; thus, their testimonies are
entitled to full faith and credit.54The acts of government authorities were found to be regular.55

The Court of Appeals did not find Dela Cruz’s defense of denial meritorious.56 "Denial as a defense
has been viewed upon with disfavor by the courts due to the ease with which it can be
concocted."57 Dela Cruz did not present any evidence "to show that he had authority to carry outside
of residence firearms and ammunition during the period of effectivity of the Gun Ban [during] election
time."58 The prosecution was able to prove Dela Cruz’s guilt beyond reasonable doubt.

The dispositive portion of the assailed Decision provides:

WHEREFORE, premises considered, the appeal is hereby DENIED. The assailed January 27, 2010
Consolidated Judgment of the Regional Trial Court (RTC), Branch 12 of Cebu City in Criminal Case
CBU-59434 is hereby AFFIRMED. Costs on accused-appellant.

SO ORDERED.59 (Emphasis in the original)

Dela Cruz filed a Motion for Reconsideration,60 which was denied by the Court of Appeals in its
Resolution dated August 23, 2013.61

Dela Cruz filed this Petition on November 4, 2013.62 In the Resolution63 dated December 9, 2013, this
court required respondent, through the Office of the Solicitor General, to submit its Comment on the
Petition. Respondent submitted its Comment64 on March 6, 2014, which this court noted in the
Resolution65 dated March 19, 2014.

Dela Cruz claims that he was an on-the-job trainee for an inter-island vessel.66 He was "well[-
]acquainted with [the] inspection scheme [at the] ports."67 He would not have risked placing
prohibited items such as unlicensed firearms inside his luggage knowing fully the consequences of
such an action.68

According to Dela Cruz, when he arrived at the port on May 11, 2007, he left his luggage with a
porter to buy a ticket.69 "A considerable time of fifteen minutes went by before he could secure the
ticket while his luggage was left sitting on the floor with only the porter standing beside it."70 He
claims that someone must have placed the unlicensed firearms inside his bag during the period he
was away from it.71 He was surprised when his attention was called by the x-ray machine operator
after the firearms were detected.72

Considering the circumstances, Dela Cruz argues that there was no voluntary waiver against
warrantless search:73

In petitioner’s case, it may well be said that, with the circumstances attending the search of his
luggage, he had no actual intention to relinquish his right against warrantless searches. He knew in
all honest belief that when his luggage would pass through the routine x-ray examination, nothing
incriminating would be recovered. It was out of that innocent confidence that he allowed the
examination of his luggage. . . . [H]e believed that no incriminating evidence w[ould] be found.
He knew he did not place those items. But what is strikingly unique about his situation is that a
considerable time interval lapsed, creating an opportunity for someone else to place inside his
luggage those incriminating items.74 (Emphasis in the original)

Respondent argues that there was a valid waiver of Dela Cruz’s right to unreasonable search and
seizure, thus warranting his conviction.75 Dela Cruz was "caught in flagrante delicto carrying three (3)
revolvers and four (4) live ammunitions when his bag went through the x-ray machine in the Cebu
Domestic Port on May 11, 2007, well within the election period."76 The firearms were seized during a
routine baggage x-ray at the port of Cebu, a common seaport security procedure.77

According to respondent, this case is similar to valid warrantless searches and seizures conducted
by airport personnel pursuant to routine airport security procedures.78

Records are also clear that Dela Cruz voluntarily waived his right to unreasonable searches and
seizure.79 The trial court found that Dela Cruz voluntarily gave his consent to the search.80

Dela Cruz’s claim that his bag was switched is also baseless.81 The witnesses categorically testified
that Dela Cruz was "in possession of the bag before it went through the x-ray machine, and he was
also in possession of the same bag that contained the firearms when he was apprehended."82

Dela Cruz raised the lone issue of "whether the Court of Appeals gravely erred in finding [him] guilty
beyond reasonable doubt of the crime charged despite the failure of the prosecution to establish his
guilt beyond reasonable doubt[.]"83

The issues for resolution in this case are:

First, whether petitioner Erwin Libo-on Dela Cruz was in possession of the illegal firearms within the
meaning of the Commission on Elections Resolution No. 7764, in relation to Section 261 of Batas
Pambansa Blg. 881;

Second, whether petitioner waived his right against unreasonable searches and seizures; and

Lastly, assuming that there was no waiver, whether there was a valid search and seizure in this
case.

We deny the Petition.

The present criminal case was brought to this court under Rule 45 of the Rules of Court. The penalty
imposed on petitioner by the trial court is material in determining the mode of appeal to this court. A
petition for review on certiorari under Rule 45 must be differentiated from appeals under Rule 124,
Section 1384 involving cases where the lower court imposed on the accused the penalty of reclusion
perpetua, life imprisonment, or, previously, death.85

In Mercado v. People:86

Where the Court of Appeals finds that the imposable penalty in a criminal case brought to it on
appeal is at least reclusion perpetua, death or life imprisonment, then it should impose such penalty,
refrain from entering judgment thereon, certify the case and elevate the entire records to this Court
for review. This will obviate the unnecessary, pointless and time-wasting shuttling of criminal cases
between this Court and the Court of Appeals, for by then this Court will acquire jurisdiction over the
case from the very inception and can, without bothering the Court of Appeals which has fully
completed the exercise of its jurisdiction, do justice in the case.

On the other hand, where the Court of Appeals imposes a penalty less than reclusion perpetua, a
review of the case may be had only by petition for review on certiorari under Rule 45 where only
errors or questions of law may be raised.87 (Emphasis supplied, citations omitted)

It is settled that in petitions for review on certiorari, only questions of law are reviewed by this
court.88 The rule that only questions of law may be raised in a petition for review under Rule 45 is
based on sound and practical policy considerations stemming from the differing natures of a
question of law and a question of fact:

A question of law exists when the doubt or controversy concerns the correct application of law or
jurisprudence to a certain set of facts; or when the issue does not call for an examination of the
probative value of the evidence presented, the truth or falsehood of facts being admitted. A question
of fact exists when the doubt or difference arises as to the truth or falsehood of facts or when the
query invites calibration of the whole evidence considering mainly the credibility of the witnesses, the
existence and relevancy of specific surrounding circumstances as well as their relation to each other
and to the whole, and the probability of the situation.89

Concomitantly, factual findings of the lower courts as affirmed by the Court of Appeals are binding
on this court.90

In contrast, an appeal in a criminal case "throws the whole case open for review[.]"91 The underlying
principle is that errors in an appealed judgment, even if not specifically assigned, may be
corrected motu propio by the court if the consideration of these errors is necessary to arrive at a just
resolution of the case.92 Nevertheless, "the right to appeal is neither a natural right nor a part of due
process, it being merely a statutory privilege which may be exercised only in the manner provided for
by law[.]"93

II

Petitioner argues that the firearms found in his bag were not his. Thus, he could not be liable for
possessing the contraband. Key to the resolution of this case is whether petitioner possessed
firearms without the necessary authorization from the Commission on Elections. Petitioner was
charged under special laws: Republic Act No. 8294 and Commission on Elections Resolution No.
7764, in relation to Section 261 of Batas Pambansa Blg. 881.

The law applicable is Section 2(a) of Commission on Elections Resolution No. 7764, which provides:

SECTION 2. Prohibitions. During the election period from January 14, 2007 it shall be unlawful for:

a. Any person, including those possessing a permit to carry firearms outside of residence or place of
business, to bear, carry or transport firearms or other deadly weapons in public places including any
building, street, park, private vehicle or public conveyance. For the purpose firearm includes airgun,
while deadly weapons include hand grenades or other explosives, except pyrotechnics[.]

Section 261(q) of Batas Pambansa Blg. 881 states:

Section 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. (Par. (l), Id.)

This prohibition shall not apply to cashiers and disbursing officers while in the performance of their
duties or to persons who by nature of their official duties, profession, business or occupation
habitually carry large sums of money or valuables.

For a full understanding of the nature of the constitutional rights involved, we will examine three (3)
points of alleged intrusion into the right to privacy of petitioner: first, when petitioner gave his bag for
x-ray scanning to port authorities; second, when the baggage inspector opened petitioner’s bag and
called the Port Authority Police; and third, when the police officer opened the bag to search, retrieve,
and seize the firearms and ammunition.

III

The first point of intrusion occurred when petitioner presented his bag for inspection to port
personnel—the x-ray machine operator and baggage inspector manning the x-ray machine
station.94 With regard to searches and seizures, the standard imposed on private persons is different
from that imposed on state agents or authorized government authorities.

In People v. Marti,95 the private forwarding and shipping company, following standard operating
procedure, opened packages sent by accused Andre Marti for shipment to Zurich, Switzerland and
detected a peculiar odor from the packages.96 The representative from the company found dried
marijuana leaves in the packages.97 He reported the matter to the National Bureau of Investigation
and brought the samples to the Narcotics Section of the Bureau for laboratory examination.98 Agents
from the National Bureau of Investigation subsequently took custody of the illegal drugs.99 Andre
Marti was charged with and was found guilty of violating Republic Act No. 6425, otherwise known as
the Dangerous Drugs Act.100

This court held that there was no unreasonable search or seizure.101 The evidence obtained against
the accused was not procured by the state acting through its police officers or authorized
government agencies.102 The Bill of Rights does not govern relationships between individuals; it
cannot be invoked against the acts of private individuals:103

If the search is made upon the request of law enforcers, a warrant must generally be first secured if
it is to pass the test of constitutionality. However, if the search is made at the behest or initiative of
the proprietor of a private establishment for its own and private purposes, as in the case at bar, and
without the intervention of police authorities, the right against unreasonable search and seizure
cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the
protection against unreasonable searches and seizures cannot be extended to acts committed by
private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government.104
Hence, by virtue of Marti, items seized pursuant to a reasonable search conducted by private
persons are not covered by the exclusionary rule.105

To determine whether the intrusion by the port personnel in this case was committed by private or
public persons, we revisit the history and organizational structure of the Philippine Ports Authority.

Port security measures are consistent with the country’s aim to develop transportation and trade in
conjunction with national and economic growth. In 1974, the Philippine Ports Authority was created
for the reorganization of port administration and operation functions.106 The Philippine Ports
Authority’s Charter was later revised through Presidential Decree No. 857. The Revised Charter
provided that the Authority may:

after consultation with relevant Government agencies, make rules or regulations for the planning,
development, construction, maintenance, control, supervision and management of any Port or Port
District and the services to be provided therein, and for the maintenance of good order therein, and
generally for carrying out the process of this Decree.107

The Philippine Ports Authority was subsequently given police authority through Executive Order No.
513,108 which provides:

Sec. 2. Section 6 is hereby amended by adding a new paragraph to read as follows:

Section 6-c. Police Authority – The Authority shall have such police authority within the ports
administered by it as may be necessary to carry out its powers and functions and attain its purposes
and objectives, without prejudice to the exercise of the functions of the Bureau of Customs and other
law enforcement bodies within the area. Such police authority shall include the following:

a) To provide security to cargoes, port equipment, structure, facilities, personnel and

documents: Provided, however, That in ports of entry, physical security to import and export
cargoes shall be exercised jointly with the Bureau of Customs;

b) To regulate the entry to, exit from, and movement within the port, of persons and vehicles,
as well as movement within the port of watercraft;

c) To maintain peace and order inside the port, in coordination with local police authorities;

d) To supervise private security agencies operating within the port area; and

e) To enforce rules and regulations promulgated by the Authority pursuant to law. (Emphasis
supplied)

In 1992, the Cebu Port Authority was created to specifically administer all ports located in the
Province of Cebu.109The Cebu Port Authority is a "public-benefit corporation . . . under the
supervision of the Department of Transportation and Communications for purposes of policy
coordination."110 Control of the ports was transferred to the Cebu Port Authority on January 1, 1996,
when its operations officially began.111

In 2004, the Office for Transportation Security was designated as the "single authority responsible
for the security of the transportation systems [in] the country[.]"112 Its powers and functions included
providing security measures for all transportation systems in the country:

b. Exercise operational control and supervision over all units of law enforcement agencies
and agency personnel providing security services in the transportation systems, except for
 motor vehicles in land transportation, jointly with the heads of the bureaus or agencies to
which the units or personnel organically belong or are assigned;

c. Exercise responsibility for transportation security operations including, but not limited to,
security screening of passengers, baggage and cargoes, and hiring, retention, training and
testing of security screening personnel;

d. In coordination with the appropriate agencies and/or instrumentalities of the government,

formulate, develop, promulgate and implement comprehensive security plans, policies,
measures, strategies and programs to ably and decisively deal with any threat to the security
of transportation systems, and continually review, assess and upgrade such security plans,
policies, measures, strategies and programs, to improve and enhance transportation security
and ensure the adequacy of these security measures;

e. Examine and audit the performance of transportation security personnel, equipment and
facilities, and, thereafter, establish, on a continuing basis, performance standards for such
personnel, equipment and facilities, including for the training of personnel;

f. Prepare a security manual/master plan or programme which shall prescribe the rules and
regulations for the efficient and safe operation of all transportation systems, including
standards for security screening procedures, prior screening or profiling of individuals for the
issuance of security access passes, and determination of levels of security clearances for
personnel of the OTS, the DOTC and its attached agencies, and other agencies of the
government;

g. Prescribe security and safety standards for all transportation systems in accordance with
existing laws, rules, regulations and international conventions;

h. Subject to the approval of the Secretary of the DOTC, issue Transportation Security
Regulations/Rules and amend, rescind or revise such regulations or rules as may be
necessary for the security of the transportation systems of the country[.]113 (Emphasis
supplied)

The Cebu Port Authority has adopted security measures imposed by the Office for Transportation
Security, including the National Security Programme for Sea Transport and Maritime Infrastructure.114

The Cebu Port Authority is clothed with authority by the state to oversee the security of persons and
vehicles within its ports. While there is a distinction between port personnel and port police officers in
this case, considering that port personnel are not necessarily law enforcers, both should be
considered agents of government under Article III of the Constitution. The actions of port personnel
during routine security checks at ports have the color of a state-related function.

In People v. Malngan,115 barangay tanod and the Barangay Chairman were deemed as law
enforcement officers for purposes of applying Article III of the Constitution.116 In People v.
Lauga,117 this court held that a "bantay bayan," in relation to the authority to conduct a custodial
investigation under Article III, Section 12118 of the Constitution, "has the color of a state-related
function and objective insofar as the entitlement of a suspect to his constitutional rights[.]"119

Thus, with port security personnel’s functions having the color of state-related functions and deemed
agents of government, Marti is inapplicable in the present case. Nevertheless, searches pursuant to
port security measures are not unreasonable per se. The security measures of x-ray scanning and
inspection in domestic ports are akin to routine security procedures in airports.
In People v. Suzuki,120 the accused "entered the pre-departure area of the Bacolod Airport
Terminal."121 He was "bound for Manila via flight No. 132 of the Philippine Airlines and was carrying a
small traveling bag and a box marked ‘Bongbong’s piaya.’"122 The accused "proceeded to the ‘walk-
through metal detector,’ a machine which produces a red light and an alarm once it detects the
presence of metallic substance or object."123 "Thereupon, the red light switched on and the alarm
sounded, signifying the presence of metallic substance either in his person or in the box he was
carrying."124 When the accused was asked to open the content of the box, he answered "open,
open."125 Several packs of dried marijuana fruiting tops were then found inside the box.126 Suzuki
argued that the box was only given to him as "pasalubong" by a certain Pinky, whom he had sexual
relations with the night before.127 He did not know the contents of the box.128

This court in Suzuki found that the search conducted on the accused was a valid exception to the
prohibition against warrantless searches as it was pursuant to a routine airport security procedure:129

It is axiomatic that a reasonable search is not to be determined by any fixed formula but is to be
resolved according to the facts of each case. Given the circumstances obtaining here, we find the
search conducted by the airport authorities reasonable and, therefore, not violative of his
constitutional rights. Hence, when the search of the box of piaya revealed several marijuana fruiting
tops, appellant is deemed to have been caught in flagrante delicto, justifying his arrest even without
a warrant under Section 5(a), Rule 113 of the Rules of Criminal Procedure. The packs of marijuana
obtained in the course of such valid search are thus admissible as evidence against
appellant.130(Citations omitted)

The reason behind it is that there is a reasonable reduced expectation of privacy when coming into
airports or ports of travel:

Persons may lose the protection of the search and seizure clause by exposure of their persons or
property to the public in a manner reflecting a lack of subjective expectation of privacy, which
expectation society is prepared to recognize as reasonable. Such recognition is implicit in airport
security procedures. With increased concern over airplane hijacking and terrorism has come
increased security at the nation’s airports. Passengers attempting to board an aircraft routinely pass
through metal detectors; their carry-on baggage as well as checked luggage are routinely subjected
to x-ray scans. Should these procedures suggest the presence of suspicious objects, physical
searches are conducted to determine what the objects are. There is little question that such
searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests
involved, and the reduced privacy expectations associated with airline travel. Indeed, travelers are
often notified through airport public address systems, signs and notices in their airline tickets that
they are subject to search and, if any prohibited materials or substances are found, such would be
subject to seizure. These announcements place passengers on notice that ordinary constitutional
protections against warrantless searches and seizures do not apply to routine airport
procedures.131 (Emphasis supplied, citations omitted)

This rationale was reiterated more recently in Sales v. People.132 This court in Sales upheld the
validity of the search conducted as part of the routine security check at the old Manila Domestic
Airport—now Terminal 1 of the Ninoy Aquino International Airport.133

Port authorities were acting within their duties and functions when it used x-ray scanning machines
for inspection of passengers’ bags.134 When the results of the x-ray scan revealed the existence of
firearms in the bag, the port authorities had probable cause to conduct a search of petitioner’s bag.
Notably, petitioner did not contest the results of the x-ray scan.

IV

Was the search rendered unreasonable at the second point of intrusion—when the baggage
inspector opened petitioner’s bag and called the attention of the port police officer?
We rule in the negative.

The port personnel’s actions proceed from the authority and policy to ensure the safety of travelers
and vehicles within the port. At this point, petitioner already submitted himself and his belongings to
inspection by placing his bag in the x-ray scanning machine.

The presentation of petitioner’s bag for x-ray scanning was voluntary. Petitioner had the choice of
whether to present the bag or not. He had the option not to travel if he did not want his bag scanned
or inspected. X-ray machine scanning and actual inspection upon showing of probable cause that a
crime is being or has been committed are part of reasonable security regulations to safeguard the
passengers passing through ports or terminals. Probable cause is:

reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to

induce a cautious man to believe that the person accused is guilty of the offense charged. It refers to
the existence of such facts and circumstances that can lead a reasonably discreet and prudent man
to believe that an offense has been committed, and that the items, articles or objects sought in
connection with said offense or subject to seizure and destruction by law are in the place to be
searched.135

It is not too burdensome to be considered as an affront to an ordinary person’s right to travel if

weighed against the safety of all passengers and the security in the port facility.

As one philosopher said, the balance between authority and an individual’s liberty may be confined
within the harm that the individual may cause others. John Stuart Mill’s "harm principle" provides:

[T]he sole end for which mankind are warranted, individually or collectively, in interfering with the
liberty of action of any of their number, is self-protection. That the only purpose for which power can
be rightfully exercised over any member of a civilised community, against his will, is to prevent harm
to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be
compelled to do or forbear because it will be better for him to do so, because it will make him
happier, because, in the opinions of others, to do so would be wise, or even right. These are good
reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but
not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the
conduct from which it is desired to deter him must be calculated to produce evil to someone else.
The only part of the conduct of any one, for which he is amenable to society, is that which concerns
others. In the part which merely concerns himself, his independence is, of right, absolute. Over
himself, over his own body and mind, the individual is sovereign.136

Any perceived curtailment of liberty due to the presentation of person and effects for port security
measures is a permissible intrusion to privacy when measured against the possible harm to society
caused by lawless persons.

A third point of intrusion to petitioner’s right to privacy occurred during petitioner’s submission to port
security measures. This court should determine whether the requirements for a valid waiver against
unreasonable searches and seizures were met.

After detection of the firearms through the x-ray scanning machine and inspection by the baggage
inspector, Officer Abregana was called to inspect petitioner’s bag.

The Constitution safeguards a person’s right against unreasonable searches and seizures.137 A
warrantless search is presumed to be unreasonable.138 However, this court lays down the exceptions
where warrantless searches are deemed legitimate: (1) warrantless search incidental to a lawful
arrest; (2) seizure in "plain view"; (3) search of a moving vehicle; (4) consented warrantless search;
(5) customs search; (6) stop and frisk; and (7) exigent and emergency circumstances.139

In Caballes v. Court of Appeals:140

In case of consented searches or waiver of the constitutional guarantee against obtrusive searches,
it is fundamental that to constitute a waiver, it must first appear that (1) the right exists; (2) that the
person involved had knowledge, either actual or constructive, of the existence of such right; and (3)
the said person had an actual intention to relinquish the right.141

Petitioner anchors his case on the claim that he did not validly consent to the search conducted by
the port authorities. He argues that he did not have an actual intention to relinquish his right against
a warrantless search.

In cases involving the waiver of the right against unreasonable searches and seizures, events must
be weighed in its entirety. The trial court’s findings show that petitioner presented his bag for
scanning in the x-ray machine.142When his bag went through the x-ray machine and the firearms
were detected, he voluntarily submitted his bag for inspection to the port authorities:

Prosecutor Narido:

Q. What did he tell you?

A. I asked him if I can check his bag?

Q. What was his response?

A. He consented and cooperated. I checked the bag.143

It was after the port personnel’s inspection that Officer Abregana’s attention was called and the bag
was inspected anew with petitioner’s consent.144

"[A]ppellate courts accord the highest respect to the assessment of witnesses’ credibility by the trial
court, because the latter was in a better position to observe their demeanor and deportment on the
witness stand."145 We do not find anything erroneous as to the findings of fact of both the trial court
and the Court of Appeals.

There was probable cause that petitioner was committing a crime leading to the search of his
personal effects. As the trial court found:

Given the circumstances obtaining here, the court finds the search conducted by the port authorities
reasonable and, therefore, not violative of the accused’s constitutional rights. Hence, when the
search of the bag of the accused revealed the firearms and ammunitions, accused is deemed to
have been caught in flagrante delicto, justifying his arrest even without a warrant under Section 5(a),
Rule 113 of the Rules of Criminal Procedure. The firearms and ammunitions obtained in the course
of such valid search are thus admissible as evidence against [the] accused.146

Similar to the accused in People v. Kagui Malasugui147 and People v. Omaweng148 who permitted
authorities to search their persons and premises without a warrant, petitioner is now precluded from
claiming an invalid warrantless search when he voluntarily submitted to the search on his person. In
addition, petitioner’s consent to the search at the domestic port was not given under intimidating or
coercive circumstances.149
This case should be differentiated from that of Aniag, Jr. v. Commission on Elections,150 which
involved the search of a moving vehicle at a checkpoint.151 In that case, there was no implied
acquiescence to the search since the checkpoint set up by the police authorities was conducted
without proper consultation, and it left motorists without any choice except to subject themselves to
the checkpoint:

It may be argued that the seeming acquiescence of Arellano to the search constitutes an implied
waiver of petitioner’s right to question the reasonableness of the search of the vehicle and the
seizure of the firearms.

While Resolution No. 2327 authorized the setting up of checkpoints, it however stressed that
"guidelines shall be made to ensure that no infringement of civil and political rights results from the
implementation of this authority," and that "the places and manner of setting up of checkpoints shall
be determined in consultation with the Committee on Firearms Ban and Security Personnel created
under Sec. 5, Resolution No. 2323." The facts show that PNP installed the checkpoint at about five
o’clock in the afternoon of 13 January 1992. The search was made soon thereafter, or thirty minutes
later. It was not shown that news of impending checkpoints without necessarily giving their locations,
and the reason for the same have been announced in the media to forewarn the citizens. Nor did the
informal checkpoint that afternoon carry signs informing the public of the purpose of its operation. As
a result, motorists passing that place did not have any inkling whatsoever about the reason behind
the instant exercise. With the authorities in control to stop and search passing vehicles, the motorists
did not have any choice but to submit to the PNP’s scrutiny. Otherwise, any attempt to turnabout
albeit innocent would raise suspicion and provide probable cause for the police to arrest the motorist
and to conduct an extensive search of his vehicle.

In the case of petitioner, only his driver was at the car at that time it was stopped for inspection. As
conceded by COMELEC, driver Arellano did not know the purpose of the checkpoint. In the face of
fourteen (14) armed policemen conducting the operation, driver Arellano being alone and a mere
employee of petitioner could not have marshalled the strength and the courage to protest against the
extensive search conducted in the vehicle. In such scenario, the "implied acquiescence," if there was
any, could not be more than a mere passive conformity on Arellano’s part to the search, and
"consent" given under intimidating or coercive circumstances is no consent within the purview of the
constitutional guaranty.152 (Emphasis supplied, citations omitted)

We also cannot subscribe to petitioner’s argument that there was no valid consent to the search
because his consent was premised on his belief that there were no prohibited items in his bag. The
defendant’s belief that no incriminating evidence would be found does not automatically negate valid
consent to the search when incriminating items are found. His or her belief must be measured
against the totality of the circumstances.153 Again, petitioner voluntarily submitted himself to port
security measures and, as he claimed during trial, he was familiar with the security measures since
he had been traveling back and forth through the sea port.

Consequently, we find respondent’s argument that the present petition falls under a valid consented
search and during routine port security procedures meritorious. The search conducted on petitioner’s
bag is valid.

VI

The consented search conducted on petitioner’s bag is different from a customs search.

Customs searches, as exception to the requirement of a valid search warrant, are allowed when
"persons exercising police authority under the customs law . . . effect search and seizure . . . in the
enforcement of customs laws."154The Tariff and Customs Code provides the authority for such
warrantless search, as this court ruled in Papa, et al. v. Mago, et al.:155
The Code authorizes persons having police authority under Section 2203 of the Tariff and Customs
Code to enter, pass through or search any land, inclosure, warehouse, store or building, not being a
dwelling house; and also to inspect, search and examine any vessel or aircraft and any trunk,
package, box or envelope or any person on board, or stop and search and examine any vehicle,
beast or person suspected of holding or conveying any dutiable or prohibited article introduced into
the Philippines contrary to law, without mentioning the need of a search warrant in said
cases.156 (Citation omitted)

The ruling in Papa was echoed in Salvador v. People,157 in that the state’s policy to combat
smuggling must not lose to the difficulties posed by the debate on whether the state has the duty to
accord constitutional protection to dutiable articles on which duty has not been paid, as with a
person’s papers and/or effects.158

Hence, to be a valid customs search, the requirements are: (1) the person/s conducting the search
was/were exercising police authority under customs law; (2) the search was for the enforcement of
customs law; and (3) the place searched is not a dwelling place or house. Here, the facts reveal that
the search was part of routine port security measures. The search was not conducted by persons
authorized under customs law. It was also not motivated by the provisions of the Tariff and Customs
Code or other customs laws. Although customs searches usually occur within ports or terminals, it is
important that the search must be for the enforcement of customs laws.

VII

In violations of the Gun Ban, the accused must be "in possession of a firearm . . . outside of his
residence within the period of the election gun ban imposed by the COMELEC sans authority[.]"159

In Abenes v. Court of Appeals,160 this court enumerated the elements for a violation of the Gun Ban:
"1) the person is bearing, carrying, or transporting firearms or other deadly weapons; 2) such
possession occurs during the election period; and, 3) the weapon is carried in a public place."161 This
court also ruled that under the Omnibus Election Code, the burden to show that he or she has a
written authority to possess a firearm is on the accused.162

We find that the prosecution was able to establish all the requisites for violation of the Gun Ban. The
firearms were found inside petitioner’s bag. Petitioner did not present any valid authorization to carry
the firearms outside his residence during the period designated by the Commission on Elections. He
was carrying the firearms in the Cebu Domestic Port, which was a public place.

However, petitioner raised the following circumstances in his defense: (1) that he was a frequent
traveler and was, thus, knowledgeable about the security measures at the terminal; (2) that he left
his bag with a porter for a certain amount of time; and (3) that he voluntarily put his bag on the x-ray
machine for voluntary inspection. All these circumstances were left uncontested by the prosecution.

This court is now asked to determine whether these circumstances are sufficient to raise reasonable
doubt on petitioner’s guilt.

When petitioner claimed that someone planted the illegal firearms in his bag, the burden of evidence
to prove this allegation shifted to him. The shift in the burden of evidence does not equate to the
reversal of the presumption of innocence. In People v. Villanueva,163 this court discussed the
difference between burden of proof and burden of evidence, and when the burden of evidence shifts
to the accused:

Indeed, in criminal cases, the prosecution bears the onus to prove beyond reasonable doubt not only
the commission of the crime but likewise to establish, with the same quantum of proof, the identity of
the person or persons responsible therefor. This burden of proof does not shift to the defense but
remains in the prosecution throughout the trial. However, when the prosecution has succeeded in
discharging the burden of proof by presenting evidence sufficient to convince the court of the truth of
the allegations in the information or has established a prima facie case against the accused, the
burden of evidence shifts to the accused making it incumbent upon him to adduce evidence in order
to meet and nullify, if not to overthrow, that prima facie case.164 (Emphasis supplied, citation omitted)

Petitioner failed to negate the prosecution’s evidence that he had animus possidendi or the intent to
possess the illegal firearms. In People v. De Gracia,165 this court elucidated on the concept of animus
possidendi and the importance of the intent to commit an act prohibited by law as differentiated from
criminal intent.166 The accused was charged with the qualified offense of illegal possession of
firearms in furtherance of rebellion under Presidential Decree No. 1866 resulting from the coup
d’etat staged in 1989 by the Reform Armed Forces Movement - Soldiers of the Filipino
People.167 This court held that the actions of the accused established his intent to possess the illegal
firearms:

When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary.
It is sufficient that the offender has the intent to perpetrate the act prohibited by the special
law. Intent to commit the crime and intent to perpetrate the act must be distinguished. A person may
not have consciously intended to commit a crime; but he did intend to commit an act, and that act is,
by the very nature of things, the crime itself. In the first (intent to commit the crime), there must be
criminal intent; in the second (intent to perpetrate the act) it is enough that the prohibited act is done
freely and consciously.

In the present case, a distinction should be made between criminal intent and intent to
possess. While mere possession, without criminal intent, is sufficient to convict a person for illegal
possession of a firearm, it must still be shown that there was animus possidendi or an intent to
possess on the part of the accused. Such intent to possess is, however, without regard to any other
criminal or felonious intent which the accused may have harbored in possessing the firearm.
Criminal intent here refers to the intention of the accused to commit an offense with the use of an
unlicensed firearm. This is not important in convicting a person under Presidential Decree No.
1866. Hence, in order that one may be found guilty of a violation of the decree, it is sufficient that the
accused had no authority or license to possess a firearm, and that he intended to possess the same,
even if such possession was made in good faith and without criminal intent.

Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm

cannot be considered a violation of a statute prohibiting the possession of this kind of weapon, such
as Presidential Decree No. 1866. Thus, although there is physical or constructive possession, for as
long as the animus possidendi is absent, there is no offense committed.

Coming now to the case before us, there is no doubt in our minds that appellant De Gracia is indeed
guilty of having intentionally possessed several firearms, explosives and ammunition without the
requisite license or authority therefor. Prosecution witness Sgt. Oscar Abenia categorically testified
that he was the first one to enter the Eurocar Sales Office when the military operatives raided the
same, and he saw De Gracia standing in the room and holding the several explosives marked in
evidence as Exhibits D to D-4. At first, appellant denied any knowledge about the explosives. Then,
he alternatively contended that his act of guarding the explosives for and in behalf of Col. Matillano
does not constitute illegal possession thereof because there was no intent on his part to possess the
same, since he was merely employed as an errand boy of Col. Matillano. His pretension of
impersonal or indifferent material possession does not and cannot inspire credence.

Animus possidendi is a state of mind which may be determined on a case to case basis, taking into
consideration the prior and coetaneous acts of the accused and the surrounding circumstances.
What exists in the realm of thought is often disclosed in the range of action. It is not controverted that
appellant De Gracia is a former soldier, having served with the Philippine Constabulary prior to his
separation from the service for going on absence without leave (AWOL). We do not hesitate,
therefore, to believe and conclude that he is familiar with and knowledgeable about the dynamites,
"molotov" bombs, and various kinds of ammunition which were confiscated by the military from his
possession. As a former soldier, it would be absurd for him not to know anything about the
dangerous uses and power of these weapons. A fortiori, he cannot feign ignorance on the import of
having in his possession such a large quantity of explosives and ammunition. Furthermore, the place
where the explosives were found is not a military camp or office, nor one where such items can
ordinarily but lawfully be stored, as in a gun store, an arsenal or armory. Even an ordinarily prudent
man would be put on guard and be suspicious if he finds articles of this nature in a place intended to
carry out the business of selling cars and which has nothing to do at all, directly or indirectly, with the
trade of firearms and ammunition.168 (Emphasis supplied, citations omitted)

The disquisition in De Gracia on the distinction between criminal intent and intent to possess, which
is relevant to convictions for illegal possession of firearms, was reiterated in Del Rosario v.
People.169 This court ruled that "[i]n the absence of animus possidendi, the possessor of a firearm
incurs no criminal liability."170

In this case, petitioner failed to prove that his possession of the illegal firearms seized from his bag
was "temporary, incidental, casual, or harmless possession[.]"171 As put by the trial court, petitioner’s
claim that anyone could have planted the firearms in his bag while it was unattended is
flimsy.172 There are dire consequences in accepting this claim at face value, particularly that no one
will be caught and convicted of illegal possession of firearms.

Courts must also weigh the accused’s claim against the totality of the evidence presented by the
prosecution. This includes determination of: (1) the motive of whoever allegedly planted the illegal
firearm(s); (2) whether there was opportunity to plant the illegal firearm(s); and (3) reasonableness of
the situation creating the opportunity.

Petitioner merely claims that someone must have planted the firearms when he left his bag with the
porter. He did not identify who this person could have been and he did not state any motive for this
person to plant the firearms in his possession, even if there was indeed an opportunity to plant the
firearms.

However, this court is mindful that, owing to the nature of his work, petitioner was a frequent traveler
who is well-versed with port security measures. We cannot accept that an average reasonable
person aware of travel security measures would leave his belongings with a stranger for a relatively
long period of time. Also, records show that petitioner had only one (1) bag. There was no evidence
to show that a robust young man like petitioner would have need of the porter’s services. The
defense did not identify nor present this porter with whom petitioner left his bag.

VIII

The trial court was correct when it dismissed Criminal Case No. CBU-80084 for violation of Republic
Act No. 8294, otherwise known as illegal possession of firearms. Section 1 of Republic Act No. 8294
provides:

SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to
read as follows:

SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or

Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. – The penalty of prision correccional in its maximum period and a fine of not less than
Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire
handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be used in the manufacture of any firearm or
ammunition: Provided, That no other crime was committed. (Emphasis supplied)
Agote v. Judge Lorenzo173 already settled the question of whether there can be a "separate offense
of illegal possession of firearms and ammunition if there is another crime committed[.]"174 In that
case, the petitioner was charged with both illegal possession of firearms and violation of the Gun
Ban under Commission on Elections Resolution No. 2826.175 This court acquitted petitioner in the
case for illegal possession of firearms since he simultaneously violated the Gun Ban.176 This court
also held that the unlicensed firearm need not be actually used in the course of committing the other
crime for the application of Section 1 of Republic Act No. 8294.177

Similarly, Madrigal v. People178 applied the ruling in Agote and held that Section 1 of Republic Act No.
8294 is express in its terms that a person may not be convicted for illegal possession of firearms if
another crime was committed.179

IX

We note that the trial court imposed the penalty of imprisonment for a period of one (1) year and to
suffer disqualification to hold public office and deprivation of the right to suffrage. Under Section 264
of Batas Pambansa Blg. 881, persons found guilty of an election offense "shall be punished with
imprisonment of not less than one year but not more than six years and shall not be subject to
probation."180 The Indeterminate Sentence Law applies to offenses punished by both the Revised
Penal Code and special laws.181

The penalty to be imposed is a matter of law that courts must follow. The trial court should have
provided minimum and maximum terms for petitioner’s penalty of imprisonment as required by the
Indeterminate Sentence Law.182Accordingly, we modify the penalty imposed by the trial court. Based
on the facts, we deem it reasonable that petitioner be penalized with imprisonment of one (1) year as
minimum to two (2) years as maximum.183

The records are unclear whether petitioner is currently detained by the state or is out on bail.
Petitioner’s detention is relevant in determining whether he has already served more than the
penalty imposed upon him by the trial court as modified by this court, or whether he is qualified to
the credit of his preventive imprisonment with his service of sentence.

Article 29184 of the Revised Penal Code states:

ART. 29. Period of preventive imprisonment deducted from term of imprisonment. – Offenders or
accused who have undergone preventive imprisonment shall be credited in the service of their
sentence consisting of deprivation of liberty, with the full time during which they have undergone
preventive imprisonment if the detention prisoner agrees voluntarily in writing after being informed of
the effects thereof and with the assistance of counsel to abide by the same disciplinary rules
imposed upon convicted prisoners, except in the following cases:

1. When they are recidivists, or have been convicted previously twice or more times of any
crime; and

2. When upon being summoned for the execution of their sentence they have failed to
surrender voluntarily.

If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon
convicted prisoners, he shall do so in writing with the assistance of a counsel and shall be credited in
the service of his sentence with four-fifths of the time during which he has undergone preventive
imprisonment. 1âwphi 1
Credit for preventive imprisonment for the penalty of reclusion perpetua shall be deducted from thirty
(30) years.

Whenever an accused has undergone preventive imprisonment for a period equal to the possible
maximum imprisonment of the offense charged to which he may be sentenced and his case is not
yet terminated, he shall be released immediately without prejudice to the continuation of the trial
thereof or the proceeding on appeal, if the same is under review. Computation of preventive
imprisonment for purposes of immediate release under this paragraph shall be the actual period of
detention with good conduct time allowance: Provided, however, That if the accused is absent
without justifiable cause at any stage of the trial, the court may motu proprio order the rearrest of the
accused: Provided, finally, That recidivists, habitual delinquents, escapees and persons charged
with heinous crimes are excluded from the coverage of this Act. In case the maximum penalty to
which the accused may be sentenced is lestierro [sic], he shall be released after thirty (30) days of
preventive imprisonment.

In case credit of preventive imprisonment is due, petitioner must first signify his agreement to the
conditions set forth in Article 29 of the Revised Penal Code.185 If petitioner has already served more
than the penalty imposed upon him by the trial court, then his immediate release from custody is in
order unless detained for some other lawful cause.186

WHEREFORE, the Petition is DENIED. The Court of Appeals Decision dated September 8, 2012
and the Resolution dated August 23, 2013 in CA-GR CEB CR No. 01606
are AFFIRMED with MODIFICATIONS. Petitioner Erwin Libo-On Dela Cruz is sentenced to
imprisonment of one (1) year as minimum to two (2) years as maximum in accordance with the
Indeterminate Sentence Law. The period of his preventive imprisonment shall be credited in his
favor if he has given his written conformity to abide by the disciplinary rules imposed upon convicted
prisoners in accordance with Article 29 of the Revised Penal Code, as amended, and if he is not out
on bail.

SO ORDERED.

MARVIC M.V.F. LEONEN

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D. BRION MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
 CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

1
Rollo, pp. 8-21.

2
Id. at 5~3. The case was docketed as CA-GR CEB CR. No. 01606. The Decision was
penned by Associate Justice Ramon Paul L. Hernando (Chair) and concurred in by
Associate Justices Gabriel T. Ingles and Zenaida T. Galapate-Laguilles of the Special
Twentieth Division, Court of Appeals Cebu.

3
Id. at 68--69. The Resolution was penned by Associate Justice Ramon Paul L. Hernando
and concurred in by Associate Justices Edgardo L. Delos Santos (Chair) and Gabriel T.
Ingles of the Special Former Special Twentieth Division, Court of Appeals Cebu.

4
Id. at 17, Petition.

5
Id. at 63, Court of Appeals Decision.

6
Id. at 23–31, Regional Trial Court’s Consolidated Judgment. The Consolidated Judgment
was penned by Presiding Judge Estela Alma A. Singco of Branch 12 of the Regional Trial
Court, Cebu City.

7
Rules and Regulations on: (A) Bearing, Carrying or Transporting Firearms or Other Deadly
Weapons; (B) Security Personnel or Bodyguards; (C) Bearing Arms by any Member of
Security or Police Organization of Government Agencies and Other Similar Organization (D)
Organization or Maintenance of Reaction Forces during the Election Period in connection
with the May 14, 2007 National and Local Elections.

8
Batas Blg. 881 (1985), sec. 261(q) provides:

....

(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. (Par. (l), Id.) This
prohibition shall not apply to cashiers and disbursing officers while in the
performance of their duties or to persons who by nature of their official duties,
profession, business or occupation habitually carry large sums of money or
valuables.

9
Omnibus Election Code of The Philippines.
10
Rollo, p. 30, Regional Trial Court’s Consolidated Judgment.

Id. at 12, Petition, and 27, Regional Trial Court’s Consolidated Judgment; defense’s
11

version of the facts as summarized by the trial court.

12
Id. at 27, Regional Trial Court’s Consolidated Judgment.

Id. at 25 and 27, Regional Trial Court’s Consolidated Judgment, and 58, Court of Appeals
13

Decision.

14
Id. at 27.

15
Id.

16
Id.

17
Id. at 26–27.

18
Id. at 26.

19
Id.

20
Id.

21
Id.

22
Id.

Id. at 58, Court of Appeals Decision. In the trial court’s Consolidated Judgment, the port
23

personnel was named "Archie" Igot. The Court of Appeals Decision refers to the port
personnel as "Arcie" Igot.

24
Id.

25
Id.

26
Id.

27
Id.

28
Id. at 58–59.

29
Id. at 11, Petition, and 59, Court of Appeals Decision.

30
Id. at 59, Court of Appeals Decision.

31
Id.

32
Id. at 57.

33
Id.
34
Id. at 58.

35
Id.

36
Id. at 11, Petition, and 25, Regional Trial Court’s Consolidated Judgment.

Id. at 30, Regional Trial Court’s Consolidated Judgment, and 59–60, Court of Appeals
37

Decision.

Id. at 30, Regional Trial Court’s Consolidated Judgment, and 60, Court of Appeals
38

Decision.

39
Id. at 27–28, Regional Trial Court’s Consolidated Judgment.

40
Id.

41
Id. at 28.

42
Id. at 25–28.

43
Id. at 29.

44
Id. at 28.

45
Id.

46
Id. at 29.

47
Id.

48
Id.

49
Id. at 60, Court of Appeals Decision.

50
Id. at 29, Regional Trial Court’s Consolidated Judgment.

51
Id. at 30.

52
Id. at 30–31.

53
Id. at 63, Court of Appeals Decision.

54
Id. at 60–61.

55
Id. at 61.

56
Id. at 62.

57
Id.

58
Id. at 62–63.
59
Id. at 63.

60
Id. at 64–67.

61
Id. at 69, Court of Appeals Resolution.

62
Id. at 8, Petition.

63
Id. at 72.

64
Id. at 83–95.

65
Id. at 97.

66
Id. at 14, Petition.

67
Id.

68
Id.

69
Id. at 15.

70
Id.

71
Id.

72
Id.

73
Id. at 15–16.

74
Id. at 16.

75
Id. at 88 and 90–91, Comment.

76
Id. at 88.

77
Id.

78
Id. at 89–90.

79
Id. at 90.

80
Id. at 92, citing the Regional Trial Court’s Consolidated Judgment, p. 6.

81
Id. at 92.

82
Id. at 92–93.

83
Id. at 14, Petition.

RULES OF COURT, Rule 124, sec. 13, as amended by A.M. No. 00-5-03-SC dated
84

September 28, 2004, provides:

 Sec. 13. Certification or appeal of case to the Supreme Court.—(a) Whenever the
Court of Appeals finds that the penalty of death should be imposed, the court shall
render judgment but refrain from making an entry of judgment and forthwith certify
the case and elevate its entire record to the Supreme Court for review.

(b) Where the judgment also imposes a lesser penalty for offenses’
committed on the same occasion or which arose out of the same occurrence
that gave rise to the more severe offense for which the penalty of death is
imposed, and the accused appeals, the appeal shall be included in the case
certified for review to the Supreme Court.

(c) In cases where the Court of Appeals imposes reclusion perpetua, life
imprisonment or a lesser penalty, it shall render and enter judgment imposing
such penalty. The judgment may be appealed to the Supreme Court by
notice of appeal filed with the Court of Appeals.

See People v. Rocha, 558 Phil. 521, 530–535 (2007) [Per J. Chico-Nazario, Third
Division], for a discussion on the difference between appeal for cases involving
imposition of life imprisonment and reclusion perpetua, and automatic review for
cases involving imposition of death penalty. See also People v. Mateo, 477 Phil. 752,
768–773 (2004) [Per J. Vitug, En Banc].

85
See Republic Act No. 9346, entitled "An Act Prohibiting the Imposition of Death Penalty in
the Philippines"

441 Phil. 216 (2002) [Per J. Bellosillo, Second Division]. The case was decided in 2002
86

before the amendment of the Rules in A.M. No. 00-5-3-SC dated September 28, 2004.

87
Id. at 222–223.

88
RULES OF COURT, Rule 45, sec. 1 provides:

SECTION 1. Filing of petition with Supreme Court.— A party desiring to appeal by

certiorari from a judgment or final order or resolution of the Court of Appeals, the
Sandiganbayan, the Regional Trial Court or other courts whenever authorized by
law, may file with the Supreme Court a verified petition for review on certiorari. The
petition shall raise only questions of law which must be distinctly set forth.

See Tan v. People, 604 Phil. 68, 78 (2009) [Per J. Chico-Nazario, Third Division].

Ruiz v. People, 512 Phil. 127, 135 (2005) [Per J. Callejo, Sr., Second Division], citing
89

Republic v. Sandiganbayan, 425 Phil. 752, 765–766 (2002) [Per C.J. Davide, Jr., En Banc].

90
See People v. Cardenas, G. R. No. 190342, March 21, 2012, 668 SCRA 827, 844–845
[Per J. Sereno (now C.J.), Second Division].

People v. Galigao, 443 Phil. 246, 261 (2003) [Per J. Ynares-Santiago, En Banc], citing
91

People v. Taño, 387 Phil. 465, 478 (2000) [Per J. Panganiban, En Banc] and People v.
Castillo, 382 Phil. 499, 506 (2000) [Per J. Puno, En Banc].

People v. Galigao, 443 Phil. 246, 261 (2003) [Per J. Ynares-Santiago, En Banc], citing
92

People v. Pirame, 384 Phil. 286, 300 (2000) [Per J. Quisumbing, Second Division].

93
People v. Judge Laguio, Jr., 547 Phil. 296, 309 (2007) [Per J. Garcia, First Division].
94
Rollo, p. 28, Regional Trial Court’s Consolidated Judgment.

95
271 Phil. 51 (1991) [Per J. Bidin, Third Division].

96
Id. at 54–55.

97
Id. at 55.

98
Id.

99
Id.

100
Id. at 56.

101
Id. at 60.

102
Id.

103
Id. at 61.

104
Id. at 62.

Id. at 58. See Stonehill, et al. v. Diokno, et al., 126 Phil. 738 (1967) [Per C.J. Concepcion,
105

En Banc].

In People v. Alicando, 321 Phil. 656, 690–691 (1995) [Per J. Puno, En Banc], this
court explained the doctrine of fruit of the poisonous tree as adopted in this
jurisdiction: "We have not only constitutionalized the Miranda warnings in our
jurisdiction. We have also adopted the libertarian exclusionary rule known as the ‘fruit
of the poisonous tree,’ a phrase minted by Mr. Justice Felix Frankfurter in the
celebrated case of Nardone v. United States. According to this rule, once the primary
source (the ‘tree’) is shown to have been unlawfully obtained, any secondary or
derivative evidence (the ‘fruit’) derived from it is also inadmissible. Stated otherwise,
illegally seized evidence is obtained as a direct result of the illegal act, whereas the
‘fruit of the poisonous tree’ is the indirect result of the same illegal act. The ‘fruit of
the poisonous tree’ is at least once removed from the illegally seized evidence, but it
is equally inadmissible. The rule is based on the principle that evidence illegally
obtained by the State should not be used to gain other evidence because the
originally illegally obtained evidence taints all evidence subsequently obtained. We
applied this exclusionary rule in the recent case of People vs. Salanga, et al., a
ponencia of Mr. Justice Regalado. Salanga was the appellant in the rape and killing
of a 15-year old barrio lass. He was, however, illegally arrested. Soldiers took him
into custody. They gave him a body search which yielded a lady’s underwear. The
underwear was later identified as that of the victim. We acquitted Salanga. Among
other reasons, we ruled that ‘the underwear allegedly taken from the appellant is
inadmissible in evidence, being a so-called fruit of the poisonous tree.’"

See Pres. Decree No. 505 (1974), entitled Providing for the Reorganization of Port
106

Administration and Operation Functions in the Country, Creating the Philippine Port
Authority, Paving the Way for the Establishment of Individual, Autonomous Port/Industrial
Zone Authorities in the Different Port Districts, and for Other Purposes.

107
Pres. Decree No. 857 (1974), art. VIII, sec. 26(a).
108
Exec. Order No. 513 (1978) is entitled Reorganizing the Philippine Ports Authority.

109
See Rep. Act No. 7621 (1992), entitled An Act Creating the Cebu Port Authority Defining
its Powers and Functions, Providing Appropriation therefor, and for Other Purposes.

110
Rep. Act No. 7621 (1992), sec. 3.

See Cebu Port Authority, Corporate Profile, History

111

<http://www.cpa.gov.ph/index.php?option=com_content&view=article&id=142&mId=110&mIt
emId=111> (visited September 1, 2015).

112
See Exec. Order No. 311 (2004), entitled Designating the Office for Transportation
Security as the Single Authority Responsible for the Security of the Transportation Systems
of the Country, Expanding its Powers and Functions and for Other Purposes. See also Exec.
Order No. 277 (2004).

113
Exec. Order No. 311 (2004), sec. 2.

See Cebu Port Authority Admin. Order No. 04 (2008)

114

<http://www.cpa.gov.ph/external/pdf/all_admin_order/2008/AO_04-2008.pdf> (visited
September 1, 2015).

115
534 Phil. 404 (2006) [Per J. Chico-Nazario, En Banc]. This case applied the ruling
in Marti on the inapplicability of the Bill of Rights against private individuals. However, it
found that barangay tanod and the Barangay Chairman are law enforcement officers for
purposes of applying Article III, Section 12(1) and (3) of the Constitution.

116
Id. at 439.

117
629 Phil. 522 (2010) [Per J. Perez, Second Division].

118
CONST., art. III, sec. 12 provides:

SECTION 12. (1) Any person under investigation for the commission of an offense
shall have the right to be informed of his right to remain silent and to have competent
and independent counsel preferably of his own choice. If the person cannot afford
the services of counsel, he must be provided with one. These rights cannot be
waived except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which
vitiate the free will shall be used against him. Secret detention places,
solitary, incommunicado, or other similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17

hereof shall be inadmissible in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this
section as well as compensation to and rehabilitation of victims of torture or
similar practices, and their families.

119
People v. Lauga, 629 Phil. 522, 531 (2010) [Per J. Perez, Second Division].

120
G.R. No. 120670, October 23, 2003, 414 SCRA 43 [Per J. Sandoval-Gutierrez, En Banc].
121
Id. at 45.

122
Id.

123
Id. at 46.

124
Id.

125
Id.

126
Id.

127
Id. at 47.

128
Id.

129
Id. at 53.

130
Id. at 56–57.

131
Id. at 53–54.

132
G.R. No. 191023, February 6, 2013, 690 SCRA 141 [Per J. Villarama, Jr., First Diviison].

133
Id. at 145 and 152.

134
Police authority has been delegated to different government agencies and
instrumentalities through law. See TARIFF CODE, sec. 2203; Pres. Decree No. 1716-A
(1980), entitled Further Amending Presidential Decree No. 66 dated November 20, 1972,
Creating the Export Processing Zone Authority, sec. 7; and Exec. Order No. 903 (1983),
entitled Providing for a Revision of Executive Order No. 778 Creating the Manila International
Airport Authority, Transferring Existing Assets of the Manila International Airport to the
Authority, and Vesting the Authority with Power to Administer and Operate the Manila
International Airport. See also Salvador v. People, 502 Phil. 60 (2005) [Per J. Sandoval-
Gutierrez, Third Division]; Pacis v. Pamaran, 155 Phil. 17 (1974) [Per J. Fernando, Second
Division]; Manikad, et al. v. Tanodbayan, et al., 212 Phil. 669 (1984) [Per J. Escolin, En
Banc]; and Manila International Airport Authority v. Court of Appeals, 528 Phil. 181 (2006)
[Per J. Carpio, En Banc].

People v. Mariacos, 635 Phil. 315, 329 (2010) [Per J. Nachura, Second Division], citing
135

People v. Aruta, 351 Phil. 868, 880 (1998) [Per J. Romero, Third Division], citing in turn
People v. Encinada, 345 Phil. 301, 317 (1997) [Per J. Panganiban, Third Division].

136
John Stuart Mill, On Liberty <https://www.gutenberg.org/files/34901/34901-h/34901-h.htm>
(visited September 1, 2015).

137
CONST., art. III, sec. 2 provides:

SECTION 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.

138
See People v. Aruta, 351 Phil. 868 (1998) [Per J. Romero, Third Division].

See People v. Cogaed, G.R. No. 200334, July 30, 2014, 731 SCRA 427, 440–441 [Per J.
139

Leonen, Third Division]. See also Villanueva v. People, G.R. No. 199042, November 17,
2014

<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2014/november20
14/199042.pdf> 5 [Per C.J. Sereno, First Division].

140
424 Phil. 263 (2002) [Per J. Puno, First Division].

141
Id. at 289. See People v. Figueroa, 390 Phil. 561 (2000) [Per C.J. Davide, First Division].

142
Rollo, pp. 26–28, Regional Trial Court’s Consolidated Judgment.

143
Id. at 28.

144
Id. at 25–27.

145
People v. Lacerna, 344 Phil. 100, 124 (1997) [Per J. Panganiban, Third Division].

146
Rollo, p. 28, Regional Trial Court’s Consolidated Judgment.

63 Phil. 221 (1936) [Per J. Diaz, En Banc], citing I THOMAS COOLEY,

147

CONSTITUTIONAL LIMITATIONS 631 (8th ed.).

G.R. No. 99050, September 2, 1992, 213 SCRA 462, 470–471 [Per J. Davide, Jr., Third
148

Division].

149
See Caballes v. Court of Appeals, 424 Phil. 263, 289 (2002) [Per J. Puno, First Division].

150
G.R. No. 104961, October 7, 1994, 237 SCRA 424 [Per J. Bellosillo, En Banc].

151
Id. at 429.

152
Id. at 436–437.

153
See Caballes v. Court of Appeals, 424 Phil. 263, 286 (2002) [Per J. Puno, First Division].

154
Papa, et al. v. Mago, et al., 130 Phil. 886, 902 (1968) [Per J. Zaldivar, En Banc].

155
130 Phil. 886 (1968) [Per J. Zaldivar, En Banc].

156
Id. at 901–902.

157
502 Phil. 60 (2005) [Per J. Sandoval-Gutierrez, Third Division].

158
Id. at 72.
 See Escalante v. People, G.R. No. 192727, January 9, 2013, 688 SCRA 362, 373 [Per J.
159

Reyes, First Division].

160
544 Phil. 614 (2007) [Per J. Austria-Martinez, Third Division]. In this case, the accused
was convicted of violating the Gun Ban but was acquitted of violating Presidential Decree
No. 1866 (Id. at 634). This court held: "While the prosecution was able to establish the fact
that the subject firearm was seized by the police from the possession of the petitioner,
without the latter being able to present any license or permit to possess the same, such fact
alone is not conclusive proof that he was not lawfully authorized to carry such firearm. In
other words, such fact does not relieve the prosecution from its duty to establish the lack of a
license or permit to carry the firearm by clear and convincing evidence, like a certification
from the government agency concerned" (Id. at 631).

Id. at 633. Abenes involved the Commission on Elections’ imposed Gun Ban through Rep.
161

Act No. 7166 (1991), sec. 32, which is substantially the same with COMELEC Resolution No.
7764 (2006), sec. 2, in relation to Batas Blg. 881 (1985), sec. 261.

162
Id. at 632.

163
536 Phil. 998 (2006) [Per J. Ynares-Santiago, First Division].

164
Id. at 1003–1004.

165
G.R. Nos. 102009–10, July 6, 1994, 233 SCRA 716 [Per J. Regalado, Second Division].

166
Id. at 726–727.

167
Id. at 720–721.

168
Id. at 726–728.

169
Del Rosario v. People, 410 Phil. 642, 664 (2001) [Per J. Pardo, First Division].

170
Id.

People v. De Gracia, G.R. Nos. 102009–10, July 6, 1994, 233 SCRA 716, 727 [Per J.
171

Regalado, Second Division].

172
Rollo, p. 29, Regional Trial Court’s Consolidated Judgment.

173
502 Phil. 318 (2005) [Per J. Garcia, En Banc].

174
Id. at 332.

175
Id. at 323–324.

176
Id. at 335.

177
Id. at 331–334.

178
584 Phil. 241 (2008) [Per J. Corona, First Division].

179
Id. at 245.
180
Batas Blg. 881 (1985), sec. 264 provides:

SECTION 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. Any political party found
guilty shall be sentenced to pay a fine of not less than ten thousand pesos, which
shall be imposed upon such party after criminal action has been instituted in which
their corresponding officials have been found guilty.

See Uriarte v. People, 540 Phil. 477, 501 (2006) [Per J. Callejo, Sr., First Division]
181

and People v. Simon, G.R. No. 93028, July 29, 1994, 234 SCRA 555, 579–581 [Per J.
Regalado, En Banc].

182
Act No. 4103 (1933), sec. 1, as amended by Act No. 4225 (1935), sec. 1, provides:

SEC. 1. Hereafter, in imposing a prison sentence for an offense punished by the

Revised Penal Code, or its amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall be that which, in view of
the attending circumstances, could be properly imposed under the rules of the said
Code, and to a minimum which shall be within the range of the penalty next lower to
that prescribed by the Code for the offense; and if the offense is punished by any
other law, the court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by said law and the
minimum shall not be less than the minimum term prescribed by the same.

See Escalante v. People, G.R. No. 192727, January 9, 2013, 688 SCRA 362, 374
[Per J. Reyes, First Division].

In Abenes v. Court of Appeals, 544 Phil. 614, 634 (2007) [Per J. Austria-Martinez, Third
183

Division], this court imposed the indeterminate sentence of one (1) year of imprisonment as
minimum to two (2) years of imprisonment as maximum. In Madrigal v. People, 584 Phil.
241, 245 (2008) [Per J. Corona, First Division], the accused was "sentenced to suffer the
indeterminate penalty of imprisonment from one year as minimum to three years as
maximum[.]"

184
As amended by Rep. Act No. 10592 (2012), sec. 1.

People v. Oloverio, G.R. No. 211159, March 28, 2015

185

<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/march2015/211159.
pdf> 17–18 [Per J. Leonen, Second Division].

186
Agote v. Judge Lorenzo, 502 Phil. 318, 335 (2005) [Per J. Garcia, En Banc].

FIRST DIVISION

[G.R. No. 142295. May 31, 2001]

VICENTE DEL ROSARIO y NICOLAS, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.

DECISION
PARDO, J.:

Petitioner Vicente del Rosario y Nicolas appeals via certiorari from a decision of the Court of
Appeals[1] affirming with modification the decision of the Regional Trial Court, Bulacan, Branch
20, Malolos, and finding him guilty beyond reasonable doubt of violation of P. D. No. 1866, as
amended by Republic Act No. 8294 (illegal possession of firearms), sentencing him to four (4)
years, nine (9) months and eleven (11) days of prision correccional, as minimum, to six (6) years,
eight (8) months and one (1) day of prision mayor, as maximum, and to pay a fine of P30,000.00.
On June 17, 1996, Assistant Provincial Prosecutor Eufracio S. Marquez of Bulacan filed with
the Regional Trial Court, Bulacan, Malolos an Information charging petitioner Vicente del Rosario
y Nicolas with violation of P. D. No. 1866, as follows:

That on or about the 15th day of June 1996, in the municipality of Norzagaray,
Province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, did then and there wilfully, unlawfully and feloniously
have in his possession under his custody and control, the following, to wit:

a) One (1) pc. Pistol Cal. 45 SN:70G23792 (w/o license)

b) One (1) pc. Revolver Cal. 22 SN:48673 (w/o license)

c) Twenty Seven (27) rds live ammos. For cal. .45

d) Five (5) pcs. Magazines for cal. .45

e) Eight (8) rds live ammunitions for cal. 22

f) Five (5) pcs. Magazines short for cal. 5.56 (M16)

g) Twenty (20) rds live ammunitions for cal 5.56

without first having obtained a proper license therefor.

Contrary to law.[2]

On June 25, 1996, the trial court arraigned the petitioner. He pleaded not guilty.[3] Trial ensued.
The facts, as found by the Court of Appeals, are as follows:

Sometime in May 1996, the police received a report that accused-appellant Vicente
del Rosario was in possession of certain firearms without the necessary licenses.
Acting upon the report, P/Sr. Insp. Jerito Adique of the PNP Criminal Investigation
Group at Camp Olivas, Pampanga inquired from the PNP Firearms and Explosive
Division whether or not the report was true. On May 10, 1996, P/Sr. Insp. Edwin C.
Roque of the PNP Firearms and Explosives Division issued a certification (Exhibit L)
stating that per records in his office, the appellant is not a licensed/registered firearm
holder of any kind and caliber. Armed with the said certification, P/Sr. Insp. Adique
applied for a search warrant to enable his team to search the house of appellant.

On June 13, 1996, a search warrant (Exhibit A) was issued by Judge Gil Fernandez,
Sr. of the Regional Trial Court of Quezon City, Branch 217, authorizing the search of
the residence of appellant at Barangay Tigbe, Norzagaray, Bulacan.[4] On June 15,
1996, at about 7:00 oclock in the morning, a team led by P/Sr. Insp. Adique went to
Norzagaray to serve the warrant. Before proceeding to the residence of the appellant,
the police officers requested Barangay Chairman Rogelio de Silva and Barangay
Councilman Aurelio Panteleon to accompany them in the implementation of the
warrant. Upon arrival at the house of appellant, the police officers introduced
themselves to the wife of appellant. When the appellant came out, P/Sr. Insp. Adique
informed him that they had a search warrant and that they were authorized to search
his house. After appellant gave his permission, the police officers conducted a search
of the house. The search yielded the following items: (a) a caliber .45 pistol with
Serial No. 703792 with five magazines of caliber .45 (Exhibits B and H) found at the
masters bedroom; (b) five magazines of 5.56 M-16 rifle and two radios (Exhibits C to
C-4) found in the room of appellants daughter; and (c) a caliber .22 revolver with
Serial No. 48673 (Exhibit F) containing 8 pieces of live ammunition (Exhibit M)
found in the kitchen of the house. When asked about his license to possess the
firearms, the appellant failed to produce any. This prompted the police officers to
seize the subject firearms.

SPO2 Marion Montezon, one of the searching officers, prepared three separate
inventories of the seized items (Exhibits H, M and N). The inventories were signed by
P/Sr. Insp. Adique, the appellant and the barangay officials who witnessed the search.
Thereafter SPO2 Montezon prepared a certification of orderly search (Exhibit I)
which was signed by the appellant and the barangay officials attesting to the orderly
conduct of the search.

For his defense, appellant contends that he had a license for the caliber .45 pistol
recovered in his bedroom and that the other items seized during the search including
the caliber .22 revolver, were merely planted by the police officers. Appellant
likewise assails the manner in which the search was carried out, claiming that the
police officers just barged into his house without asking permission. Furthermore, he
claimed that the barangay officials arrived only after the police already had finished
the search.

After trial and on July 2, 1998, the trial court rendered a judgment of conviction, the
dispositive portion of which reads:
WHEREFORE, premises considered, the Court finds the accused VICENTE DEL
ROSARIO y NICOLAS guilty beyond reasonable doubt of violation of P. D. No.
1866 as charged under the Information dated June 17, 1996.

Conformably with the provisions of said law, as amended by Republic Act No. 8294,
and pursuant to the provisions of the Indeterminate Sentence Law, the Court hereby
sentences the accused to suffer imprisonment of six (6) months of arresto mayor, as
minimum, to six (6) years of prision correctional, as maximum, and to pay a fine of
Fifteen Thousand Pesos (P15,000.00).[5]

On July 20, 1998, petitioner appealed to the Court of Appeals, assailing the decision for being
contrary to facts and the law.[6]
On July 9, 1999, the Court of Appeals promulgated its decision affirming with modification
the decision of the trial court as set out in the opening paragraph of this decision.[7]
On August 10, 1999, petitioner filed with the Court of Appeals a motion for reconsideration
and/or new trial.[8] He contended that the certification issued by the Chief, Firearms and Explosives
Division, Philippine National Police stating that the person named therein had not been issued a
firearm license referred to a certain Vicente Vic del Rosario of barangay Bigte, Norzagaray,
Bulacan, not to him. He comes from barangay Tigbe, Norzagaray, Bulacan, and that he has a valid
firearm license.
On February 22, 2000, the Court of Appeals denied the motion for reconsideration for lack of
merit.[9]
Hence, this appeal.[10]
Petitioner submits that the search conducted at his residence was illegal as the search warrant
was issued in violation of the Constitution[11] and consequently, the evidence seized was
inadmissible. He also submits that he had a license for the .45 caliber firearm and ammunition
seized in his bedroom. The other firearm, a .22 caliber revolver seized in a drawer at the kitchen
of his house, a magazine for 5.56 mm. cal. Armalite rifle, and two 2-way radios found in his
daughters bedroom, were either planted by the police or illegally seized, as they were not
mentioned in the search warrant.
We find the petition impressed with merit.
We define the issues as follows:
First: whether petitioner had a license for the .45 caliber Colt pistol and ammunition seized
in his bedroom; and
Second: whether the .22 caliber revolver seized in a drawer at the kitchen of his house, a
magazine for 5.56 mm. cal. Armalite rifle and two 2-way radios found in his daughters bedroom,
were planted by the police or were illegally seized.
We shall resolve the issues in seriatim.
First: The .45 cal. Colt pistol in question was duly licensed.
Normally, we do not review the factual findings of the Court of Appeals and the trial
courts.[12] However, this case comes within the exceptions.[13]The findings of fact by the Court of
Appeals will not be disturbed by the Court unless these findings are not supported by
evidence.[14] In this case, the findings of the lower courts even directly contradict the evidence.
Hence, we review the evidence. The trial court held that the copy of the license presented was
blurred, and that in any event, the court could rely on the certification dated May 10, 1996, of P/Sr.
Inspector Edwin C. Roque, Chief, Records Branch, Firearms and Explosives Division, Philippine
National Police stating that Vicente Vic del Rosario of Barangay Bigte, Norzagaray, Bulacan is
not a licensed/registered firearm holder of any kind and caliber.[15] As against this, petitioner
submitted that he was not the person referred to in the said certification because he is Vicente del
Rosario y Nicolas from Barangay Tigbe, Norzagaray, Bulacan. The Court takes judicial notice of
the existence of both barangay Tigbe and barangay Bigte, in Norzagaray, Bulacan.[16] In fact, the
trial court erred grievously in not taking judicial notice of the barangays within its territorial
jurisdiction, believing the prosecutions submission that there was only barangay Tigbe, and that
barangay Bigte in the certification was a typographical error.[17] Petitioner presented to the head of
the raiding team, Police Senior Inspector Jerito A. Adique, Chief, Operations Branch, PNP
Criminal Investigation Command, a valid firearm license. The court is duty bound to examine the
evidence assiduously to determine the guilt or innocence of the accused. It is true that the court
may rely on the certification of the Chief, Firearms and Explosives Division, PNP on the absence
of a firearm license.[18] However, such certification referred to another individual and thus, cannot
prevail over a valid firearm license duly issued to petitioner. In this case, petitioner presented the
printed computerized copy of License No. RCL 1614021915 issued to him on July 13, 1993,
expiring in January 1995, by the Chief, Firearms and Explosives Division, PNP under the signature
of Reynaldo V. Velasco, Sr. Supt. (GSC) PNP, Chief, FEO.[19] On the dorsal side of the printed
computerized license, there is stamped the words Validity of computerized license is extended
until renewed license is printed dated January 17, 1995, signed by Police Chief Inspector Franklin
S. Alfabeto, Chief, Licence Branch, FEO.[20] Coupled with this indefinite extension, petitioner paid
the license fees for the extension of the license for the next two-year period.[21]
Consequently, we find that petitioner was the holder of a valid firearm license for the .45
caliber Colt pistol seized in the bedroom of his house on June 15, 1996.[22] As required, petitioner
presented the license to the head of the raiding team, Police Senior Inspector Jerito A. Adique
of the Criminal Investigation Division Group, PNP.[23] As a senior police officer, Senior Inspector
Adique could easily determine the genuineness and authenticity of the computerized printed
license presented. He must know the computerized license printed form. The stamp is clearly
visible. He could decipher the words and the signature of the authorized signing official of the
Firearms and Explosives Division, PNP. He belonged to the same national police organization.
Nevertheless, Senior Insp. Adique rejected the license presented because, according to him, it
was expired. However, assuming that the license presented was expired during the period January
1995 to January 1997, still, possession of the firearm in question, a .45 caliber Colt pistol with
serial No. 70G23792, during that period was not illegal. The firearm was kept at home, not carried
outside residence. On June 15, 1996, at the time of the seizure of the firearm in
question, possession of firearm with an expired license was not considered unlawful, provided
that the license had not been cancelled or revoked. Republic Act No. 8294, providing that
possession of a firearm with an expired license was unlawful took effect only on July 7, 1997.[24] It
could not be given retroactive effect.[25]
According to firearm licensing regulations, the renewal of a firearm license was automatically
applied for upon payment of the license fees for the renewal period. The expired license was not
cancelled or revoked. It served as temporary authority to possess the firearm until the renewed
license was issued. Meantime, the applicant may keep the gun at home pending renewal of the
firearm license and issuance of a printed computerized license. He was not obliged to surrender
the weapon. Printed at the dorsal side of the computerized license is a notice reading:
 IMPORTANT

1. This firearm license is valid for two (2) years. Exhibit this license whenever demanded by
proper authority.
2. Surrender your firearm/s to the nearest PNP Unit upon revocation or termination of this
license. Under any of the following instances, your license shall be revoked for which reason
your firearm/s is/are subject to confiscation and its/their forfeiture in favor of the government.

a. Failure to notify the Chief of PNP in writing of your change of address,

and/or qualification.

b. Failure to renew this license by paying annual license, fees, within six (6)
months from your birth month. Renewal of your license can be made
within your birth month or month preceding your birth month. Late
renewal shall be penalized with 50% surcharge for the first month (from the
first day to the last day of this month) followed by an additional 25%
surcharge for all of the succeeding five (5) months compounded monthly.

c. Loss of firearm/s through negligence.

d. Carrying of firearm/s outside of residence without appropriate permit

and/or carrying firearm/s in prohibited places.

e. Conviction by competent court for a crime involving moral turpitude or for

any offense where the penalty carries an imprisonment of more than six (6)
months or fine of at least P1,000.00.

f. Dismissal for cause from the service.

g. Failure to sign license, or sign ID picture or affix right thumbmark.

3. Unauthorized loan of firearm/s to another person is punishable by permanent disqualification

and forfeiture of the firearm in favor of the government.
4. If termination is due to death, your next of kin should surrender your firearm/s to the nearest
PNP Unit. For those within Metro Manila, surrender should be made with FEO, Camp Crame.
5. When firearms become permanently unserviceable, they should be deposited with the nearest
PNP Unit and ownership should be relinquished in writing so that firearms may be disposed
of in accordance with law.
6. Application for the purchase of ammunition should be made in case of a resident of Metro
Manila direct to the Chief, FEO and for residents of a Province to secure recommendation
letter to the nearest PNP Provincial Command who will thereafter endorse same to CHIEF,
FEO for issuance of the permit.License must be presented before an authority to purchase
ammo could be obtained.[26]
Indeed, as heretofore stated, petitioner duly paid the license fees for the automatic renewal of
the firearm license for the next two years upon expiration of the license in January 1995, as
evidenced by official receipt No. 7615186, dated January 17, 1995.[27] The license would be
renewed, as it was, because petitioner still possessed the required qualifications. Meantime, the
validity of the license was extended until the renewed computerized license was printed. In fact, a
renewed license was issued on January 17, 1997, for the succeeding two-year period.[28]
Aside from the clearly valid and subsisting license issued to petitioner, on January 25, 1995,
the Chief, Philippine National Police issued to him a permit to carry firearm outside residence
valid until January 25, 1996, for the firearm in question.[29] The Chief, Philippine National Police
would not issue a permit to carry firearm outside residence unless petitioner had a valid and
subsisting firearm license. Although the permit to carry firearm outside residence was valid for
only one year, and expired on January 25, 1996, such permit is proof that the regular firearm license
was renewed and subsisting within the two-year term up to January 1997. A Permit to Carry
Firearm Outside Residence presupposes that the party to whom it is issued is duly licensed to
possess the firearm in question.[30] Unquestionably, on January 17, 1997, the Chief, Firearms and
Explosives Division, PNP renewed petitioners license for the .45 cal. Colt pistol in question.[31]
Clearly then, petitioner had a valid firearm license during the interregnum between January
17, 1995, to the issuance of his renewed license on January 17, 1997.
Finally, there is no rhyme or reason why the Court of Appeals and the trial court did not accept
with alacrity the certification dated June 25, 1996, of P/Sr. Inspector Edwin C. Roque, [32] Chief,
Records Branch, Firearms and Explosives Division, PNP that Vicente N. del Rosario of Barangay
Tigbe, Norzagaray, Bulacan is a licensed/registered holder of Pistol, Colt caliber .45 with serial
number 70G23792, covered by computerized license issued dated June 15, 1995, with an expiry
date January 1997.[33] Reinforcing the aforementioned certification, petitioner submitted another
certification dated August 27, 1999, stating that Vicente N. del Rosario of Barangay Tigbe,
Norzagaray, Bulacan, was issued firearm license No. RL-C1614021915, for caliber .45 Pistol with
Serial Number 70G23792, for the years covering the period from July 13, 1993 to January 1995,
and the extension appearing at the back thereof for the years 1995 to 1997.[34] Had the lower courts
given full probative value to these official issuances, petitioner would have been correctly
acquitted, thus sparing this Court of valuable time and effort.
In crimes involving illegal possession of firearm, the prosecution has the burden of proving
the elements thereof, viz.: (a) the existence of the subject firearm and (b) the fact that the accused
who owned or possessed it does not have the license or permit to possess the same.[35] The essence
of the crime of illegal possession is the possession, whether actual or constructive, of the subject
firearm, without which there can be no conviction for illegal possession. After possession is
established by the prosecution, it would only be a matter of course to determine whether the
accused has a license to possess the firearm.[36] Possession of any firearm becomes unlawful only
if the necessary permit or license therefor is not first obtained. The absence of license and legal
authority constitutes an essential ingredient of the offense of illegal possession of firearm and
every ingredient or essential element of an offense must be shown by the prosecution by proof
beyond reasonable doubt. Stated otherwise, the negative fact of lack or absence of license
constitutes an essential ingredient of the offense which the prosecution has the duty not only to
allege but also to prove beyond reasonable doubt.[37] To convict an accused for illegal possession
of firearms and explosives under P. D. 1866, as amended, two (2) essential elements must be
indubitably established, viz.: (a) the existence of the subject firearm or explosive which may be
proved by the presentation of the subject firearm or explosive or by the testimony of witnesses
who saw accused in possession of the same, and (b) the negative fact that the accused had no
license or permit to own or possess the firearm or explosive which fact may be established by the
testimony or certification of a representative of the PNP Firearms and Explosives Unit that the
accused has no license or permit to possess the subject firearm or explosive. x x x We stress that
the essence of the crime penalized under P. D. 1866 is primarily the accuseds lack of license or
permit to carry or possess the firearm, ammunition or explosive as possession by itself is not
prohibited by law.[38] Illegal possession of firearm is a crime punished by special law, a malum
prohibitum, and no malice or intent to commit a crime need be proved.[39] To support a conviction,
however, there must be possession coupled with intent to possess (animus possidendi) the
firearm.[40]
In upholding the prosecution and giving credence to the testimony of police officer Jerito A.
Adigue, the trial court relied on the presumption of regularity in the performance of official duties
by the police officers.[41] This is a flagrant error because his testimony is directly contradictory to
the official records of the Firearms and Explosives Division, PNP, which must prevail. Morever,
the presumption of regularity can not prevail over the Constitutional presumption of
innocence.[42] Right from the start, P/Sr. Insp. Jerito A. Adigue was aware that petitioner possessed
a valid license for the caliber .45 Colt pistol in question. Despite this fact, P/Sr. Insp. Adigue
proceeded to detain petitioner and charged him with illegal possession of firearms. We quote
pertinent portions of the testimony of petitioner:
Q: What else did Adigue tell you after showing to him the license of your cal. .45 pistol and the alleged
cal. .22 found in a drawer in your kitchen?
A: He told me that since my firearm is licensed, he will return my firearm, give him ten thousand
pesos (P10,000.00) and for me to tell who among the people in our barangay have unlicensed
firearm, sir.
Q: How did he say about the ten thousand pesos?
A: He said palit kalabaw na lang tayo sir.
Q: And what did you answer him?
A: I told him my firearm is licensed and I do not have money, if I have, I will not give him, sir, because
he was just trying to squeeze something from me.
Q: How about the unlicensed firearms in your barangay which he asked from you?
A: I said I do not know any unlicensed firearm in our barangay, sir.
Q: About the .22 cal. pistol, what was your answer to him?
A: I told him that it was not mine, they planted it, sir.
Q: What did he say next?
A: He said that it is your word against mine, the Court will believe me because I am a police officer,
sir.
Q: What was your comment to what he said?
A: I said my firearm is licensed and we have Courts of law who do not conform with officials like you
and then he laughed and laughed, sir.[43]
The trial court was obviously misguided when it held that it is a matter of judicial notice that
a caliber .45 firearm can not be licensed to a private individual.[44] This ruling has no basis either
in law or in jurisprudence.[45]
Second issue. The seizure of items not mentioned in the search warrant was illegal.
With respect to the .22 caliber revolver with Serial No. 48673, that the police raiding team
found in a drawer at the kitchen of petitioners house, suffice it to say that the firearm was not
mentioned in the search warrant applied for and issued for the search of petitioners house. Section
2, Article III of the Constitution lays down the general rule that a search and seizure must be carried
out through or on the strength of a judicial warrant, absent which such search and seizure becomes
unreasonable within the meaning of said constitutional provision.[46] Supporting jurisprudence thus
outlined the following requisites for a search warrants validity, the absence of even one will cause
its downright nullification: (1) it must be issued upon probable cause; (2) the probable cause must
be determined by the judge himself and not by the applicant or any other person; (3) in the
determination of probable cause, the judge must examine, under oath or affirmation, the
complainant and such witnesses as the latter may produce; and (4) the warrant issued must
particularly describe the place to be searched and persons or things to be seized.[47] Seizure is
limited to those items particularly described in a valid search warrant. Searching officers are
without discretion regarding what articles they shall seize.[48] Evidence seized on the occasion of
such an unreasonable search and seizure is tainted and excluded for being the proverbial fruit of a
poisonous tree. In the language of the fundamental law, it shall be inadmissible in evidence for
any purpose in any proceeding.[49]
In this case, the firearm was not found inadvertently and in plain view. It was found as a result
of a meticulous search in the kitchen of petitioners house. This firearm, to emphasize, was not
mentioned in the search warrant. Hence, the seizure was illegal.[50] The seizure without the requisite
search warrant was in plain violation of the law and the Constitution.[51] True that as an exception,
the police may seize without warrant illegally possessed firearm or any contraband for that matter,
inadvertently found in plain view. However, [t]he seizure of evidence in plain view applies only
where the police officer is not searching for evidence against the accused, but inadvertently comes
across an incriminating object.[52] Specifically, seizure of evidence in plain view is justified when
there is:
(a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally
present in the pursuit of their official duties;
(b) the evidence was inadvertently discovered by the police who had the right to be where they
are;
(c) the evidence must be immediately apparent, and
(d) plain view justified mere seizure of evidence without further search.[53]
Hence, the petitioner rightly rejected the firearm as planted and not belonging to him. The
prosecution was not able to prove that the firearm was in the effective possession or control of the
petitioner without a license. In illegal possession of firearms, the possessor must know of the
existence of the subject firearm in his possession or control. In People v. de Gracia,[54] we clarified
the meaning of possession for the purpose of convicting a person under P. D. No. 1866, thus: x x
x In the present case, a distinction should be made between criminal intent and intent to
possess. While mere possession without criminal intent is sufficient to convict a person for illegal
possession of a firearm, it must still be shown that there was animus possidendi or an intent to
possess on the part of the accused. x x x x Hence, the kind of possession punishable under P. D.
No. 1866 is one where the accused possessed a firearm either physically or constructively
with animus possidendi or intention to possess the same.[55] That is the meaning of animus
possidendi. In the absence of animus possidendi, the possessor of a firearm incurs no criminal
liability.
The same is true with respect to the 5.56 cal. magazine found in the bedroom of petitioners
daughter. The seizure was invalid and the seized items were inadmissible in evidence. As
explained in People v. Doria,[56] the plain view doctrine applies when the following requisites
concur: (1) the law enforcement officer is in a position where he has a clear view of a particular
area or has prior justification for an intrusion; (2) said officer inadvertently comes across (or sees
in plain view) a piece of incriminating evidence; and (3) it is immediately apparent to such officer
that the item he sees may be evidence of a crime or a contraband or is otherwise subject to seizure.
With particular reference to the two 2-way radios that the raiding policemen also seized in the
bedroom of petitioners daughter, there was absolutely no reason for the seizure. The radios were
not contraband per se. The National Telecommunications Commission may license two-way
radios at its discretion.[57] The burden is on the prosecution to show that the two-way radios were
not licensed. The National Telecommunication Commission is the sole agency authorized to seize
unlicensed two-way radios. More importantly, admittedly, the two-way radios were not mentioned
in the search warrant.We condemn the seizure as illegal and a plain violation of a citizens
right. Worse, the petitioner was not charged with illegal possession of the two-way radios.
Consequently, the confiscation of the two 2-way radios was clearly illegal. The possession of
such radios is not even included in the charge of illegal possession of firearms (violation of P. D.
No. 1866, as amended) alleged in the Information.
WHEREFORE, the Court hereby REVERSES the decision of the Court of Appeals in CA-
G. R. CR No. 22255, promulgated on July 09, 1999.
The Court ACQUITS petitioner Vicente del Rosario y Nicolas of the charge of violation of P.
D. No. 1866, as amended by R. A. No. 8294 (illegal possession of firearms and ammunition), in
Criminal Case No. 800-M-96, Regional Trial Court, Bulacan, Branch 20, Malolos.
Costs de oficio.
The Chief, Firearms and Explosives Division, PNP shall return to petitioner his caliber .45
Colt pistol, with Serial Number No. 70G23792, the five (5) extra magazines and twenty seven (27)
rounds of live ammunition, and the two 2-way radios confiscated from him. The Chief, Philippine
National Police, or his duly authorized representative shall show to this Court proof of compliance
herewith within fifteen (15) days from notice. The .22 caliber revolver with Serial No. 48673, and
eight (8) live ammunition and the magazine for 5.56 mm. caliber Armalite rifle are confiscated in
favor of the government.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, and Ynares-Santiago, JJ., concur.
Kapunan, J., on leave.

[1]
In CA-G. R. CR No. 22255, promulgated on July 09, 1999. Aquino, J., ponente, Mabutas, Jr. and Agnir, Jr., JJ.,
concurring. Petition, Annex A, Rollo, pp. 21-28.
[2]
Regional Trial Court Records, pp. 2-3.
[3]
Ibid., p. 21.
[4]
Note well that petitioner is a resident of Barangay Tigbe, Norzagaray, Bulacan. The certification issued by P/Sr.
Insp. Edwin C. Roque referred to Vicente Vic del Rosario of Barangay Bigte, Norzagaray, Bulacan.
[5]
Petition, Annex A, Rollo, pp. 22-28, at pp. 23-24; CA Rollo, pp. 87-93, at pp. 88-89. Promulgated on July 13, 1998,
Regional Trial Court Records, p. 173.
[6]
Notice of Appeal, dated July 17, 1998, Regional Trial Court Records, p. 175. Docketed as CA-G. R. CR No. 22255.
[7]
Rollo, pp. 22-28.
[8]
CA Rollo, pp. 94-116.
[9]
Resolution, Rollo, pp. 60-61.
[10]
Petition, filed on April 24, 2000. Rollo, pp. 9-20. On June 14, 2000, we required respondent to comment on the
petition (Rollo, p. 129). On October 26, 2000, respondent filed its comment (Rollo, pp. 143-156). On December 6,
2000, we gave due course to the petition (Temp. Rollo, pp. 1-2).
[11]
On the ground that the judge who issued the search warrant did not personally ask searching questions to the
applicant and his witnesses (Prudente v. Dayrit, 180 SCRA 69 [1989]; Pendon v. Court of Appeals, 191 SCRA 429
[1990]; Silva v. RTC Negros Oriental, 203 SCRA 140 [1991].
[12]
Siguan v. Lim, 318 SCRA 725, 734 [1999]; de los Reyes v. Court of Appeals, 313 SCRA 632, 645 [1999];
American Express International, Inc. v. Court of Appeals, 308 SCRA 65, 69 [1999]; Pimentel v. Court of Appeals,
307 SCRA 38, 43 [1999].
[13]
Sta. Maria v. Court of Appeals, 349 Phil. 275, 282-283 [1998].
[14]
Guerrero v. Court of Appeals, 349 Phil. 605, 614 [1998].
[15]
See Exhibit L, Folder of Exhibits, Regional Trial Court Records, p. 6.
[16]
See Petition, Annex C, Supplement to the Motion for Reconsideration, Annex B, Rollo, p. 57. We also checked
these data from the records of the Commission on Elections.
[17]
But the trial court and the Court of Appeals ignored the sworn certification dated August 16, 1999, to the effect
that Barangay Tigbe and Barangay Bigte, Norzagaray, Bulacan are two different and distinct barangays.
[18]
People v. Lazaro, 317 SCRA 435, 446 [1999].
[19]
Exh. 1, Folder of Exhibits, Regional Trial Court Records, p. 10; See also p. 21.
[20]
See reverse side of Exhibit 1, back of p. 10 and p. 21.
[21]
Exh. 3-A, Folder of Exhibits, Regional Trial Court Records, p. 14; See also Exh. 1, ibid., p. 21.
[22]
The trial court, by taking judicial notice, ruled that a .45 cal. pistol can not be licensed. The trial court committed
two errors here. One, for taking judicial notice of a disputed fact without hearing and receiving evidence thereon
(Salamera v. Sandiganbayan, 303 SCRA 217 [1999]). Second, no law prohibits the licensing of a .45 cal pistol; the
power to issuelicense is vested in the discretion of the Chief of Constabulary, now the Chief, Philippine National
Police (Rules and Regulations Implementing P. D. No. 1866, Section 2).
[23]
TSN, November 26, 1996, p. 3.
[24]
People v. Mendoza, 301 SCRA 66, 82 [1999].
[25]
People v. de Vera, Sr., 308 SCRA 75, 100 [1999].
[26]
Exh. 1, dorsal side, Folder of Exhibits, Regional Trial Court Records, back of p. 21; see also Annex 5.2, CA Rollo,
p. 112.
[27]
Exh. 3-A, Folder of Exhibits, Regional Trial Court Records, p. 14.
[28]
Motion for Reconsideration and/or new trial, Annex 5.1, Rollo, pp. 29-51, at p. 46; See also CA Rollo, pp. 94-116,
at p. 111.
[29]
Exh. 3-b, Folder of Exhibits, Regional Trial Court Records, p. 15. See also Exhibit 1-Motion, ibid., p. 21.
[30]
Pastrano v. Court of Appeals, 346 Phil. 277, 284 [1997].
[31]
Supra, Note 28.
[32]
He is the same P/Sr. Insp. Edwin C. Roque who certified on May 10, 1996, that one Vicente Vic del Rosario of
barangay Bigte, Norzagaray, Bulacan is not a licensed/registered firearm holder of any kind and caliber, basis of
the issuance of a search warrant. Supra, Note 15.
[33]
Exh. 2, Folder of Exhibits, Regional Trial Court Records, p. 11. See also Exhibit 5, ibid., p. 18.
[34]
Supplement to the motion for reconsideration and/or new trial, Annex C, CA Rollo, pp. 118-124, at p. 124.
[35]
People v. Castillo, 325 SCRA 613, 620 [2000]; People v. Dorimon, 321 SCRA 43, 48 [1999]; People v. Cerveto,
315 SCRA 611, 624 [1999]; Cadua v. Court of Appeals, 312 SCRA 703, 722 [1999]; People v. Khor, 307 SCRA 295,
311 [1999].
[36]
People v. Bansil, 304 SCRA 384, 394 [1999].
[37]
People v. Khor, supra, Note 35, at p. 310.
[38]
People v. Cortez, 324 SCRA 335, 344 [2000].
[39]
People v. Lubo, 101 Phil. 179 [1957], citing U. S. v. Go Chico, 14 Phil. 128 [1909]; People v. Bayona, 61 Phil.
181 [1935]; People v. Cava, G. R. No. L-9416, August 31, 1956 [unpublished].
[40]
People v. Lubo, supra, Note 39.
[41]
People v. Jubilag, 331 Phil. 897, 910 [1996].
[42]
People v. Figueroa, G. R. No. 134056, July 6, 2000.
[43]
TSN, November 26, 1996, pp. 7-9.
[44]
Decision, Regional Trial Court Records, pp. 147-171, at p. 168.
[45]
Supra, Note 22.
[46]
People v. Montilla, 349 Phil. 640, 656 [1998].
[47]
Republic v. Sandiganbayan, 325 Phil. 762, 821-822 [1996].
[48]
Uy Kheytin v. Villareal, 42 Phil. 886 [1933]. In Roan v. Gonzales, 145 SCRA 687, there was a search warrant but
it was declared invalid because of failure to conduct proper examination. The seizure of guns not described in the
warrant was held illegal because there was no valid search warrant, and the articles seized were not in plain view but
deliberately sought (taken from A Handbook on Arrest, Search and Seizure and Custodial Investigation, by Justice
Oscar M. Herrera, 1994 ed., p. 178).
[49]
People v. Valdez, G. R. No. 129296, September 25, 2000.
[50]
People v. Doria, 301 SCRA 668 [1999]. Cf. Veroy v. Layaque, 210 SCRA 97 [1992], the seizure of a gun found
inside an unlocked drawer was rejected because there was no valid search.
[51]
Ibid., at p. 716, citing Section 2, Bill of Rights, 1987 Constitution.
[52]
People v. Valdez, supra, Note 49.
[53]
People v. Aruta, 351 Phil. 868, 879 [1998].
[54]
233 SCRA 716, 725, 727 [1994].
[55]
People v. de la Rosa, 348 Phil. 173, 184-185 [1998], citing People v. Soyang, 110 Phil. 565 [1960].
[56]
Supra, Note 50, concurring opinion of Justice Artemio V. Panganiban, pp. 726-727, citing People v. Musa,
217 SCRA 597, 611 [1993].
[57]
Rep. Act No. 3846, as amended.

Republic of the Philippines

Supreme Court
Manila
SECOND DIVISION

ELENITA C. FAJARDO, G.R. No. 190889

 Petitioner,
Present:

CARPIO, J.,
Chairperson,
- versus - NACHURA,
PERALTA,
ABAD, and
MENDOZA, JJ.

Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. January 10, 2011

x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

At bar is a Petition for Review on Certiorari under Rule 45 of the Rules of

Court, seeking the reversal of the February 10, 2009 Decision[1] of the Court of
Appeals (CA), which affirmed with modification the August 29, 2006 decision [2] of
the Regional Trial Court (RTC), Branch 5, Kalibo, Aklan, finding petitioner guilty
of violating Presidential Decree (P.D.) No. 1866, as amended.

The facts:

Petitioner, Elenita Fajardo, and one Zaldy Valerio (Valerio) were charged with
violation of P.D. No. 1866, as amended, before the RTC, Branch 5, Kalibo, Aklan,
committed as follows:

That on or about the 28th day of August, 2002, in the morning, in Barangay Andagao,
Municipality of Kalibo, Province of Aklan, Republic of the Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping one another, without
authority of law, permit or license, did then and there, knowingly, willfully,
unlawfully and feloniously have in their possession, custody and
control two (2) receivers of caliber .45 pistol, [M]odel [No.] M1911A1
 US with SN 763025 and Model [No.] M1911A1 US with defaced serial
number, two (2) pieces short magazine of M16 Armalite rifle, thirty-
five (35) pieces live M16 ammunition 5.56 caliber and fourteen (14)
pieces live caliber .45 ammunition, which items were confiscated and
recovered from their possession during a search conducted by members of
the Provincial Intelligence Special Operation Group, Aklan Police
Provincial Office, Kalibo, Aklan, by virtue of Search Warrant No. 01 (9) 03
issued by OIC Executive Judge Dean Telan of the Regional Trial Court of
Aklan.[3]

When arraigned on March 25, 2004, both pleaded not guilty to the offense
charged.[4] During pre-trial, they agreed to the following stipulation of facts:

1. The search warrant subject of this case exists;

2. Accused Elenita Fajardo is the same person subject of the search

warrant in this case who is a resident of Sampaguita Road, Park
Homes, Andagao, Kalibo, Aklan;

3. Accused Zaldy Valerio was in the house of Elenita Fajardo in the

evening of August 27, 2002 but does not live therein;

4. Both accused were not duly licensed firearm holders;

5. The search warrant was served in the house of accused Elenita

Fajardo in the morning of August 28, 2002; and

6. The accused Elenita Fajardo and Valerio were not arrested

immediately upon the arrival of the military personnel despite the
fact that the latter allegedly saw them in possession of a firearm in
the evening of August 27, 2002.[5]

As culled from the similar factual findings of the RTC and the CA,[6] these are
the chain of events that led to the filing of the information:

In the evening of August 27, 2002, members of the Provincial Intelligence

Special Operations Group (PISOG) were instructed by Provincial Director Police
Superintendent Edgardo Mendoza (P/Supt. Mendoza) to respond to the complaint of
concerned citizens residing on Ilang-Ilang and Sampaguita Roads, Park Homes III
Subdivision, Barangay Andagao, Kalibo, Aklan, that armed men drinking liquor at
the residence of petitioner were indiscriminately firing guns.
 Along with the members of the Aklan Police Provincial Office, the elements
of the PISOG proceeded to the area. Upon arrival thereat, they noticed that several
persons scampered and ran in different directions. The responding team saw Valerio
holding two .45 caliber pistols. He fired shots at the policemen before entering the
house of petitioner.

Petitioner was seen tucking a .45 caliber handgun between her waist and the
waistband of her shorts, after which, she entered the house and locked the main door.
To prevent any violent commotion, the policemen desisted from entering petitioners
house but, in order to deter Valerio from evading apprehension, they cordoned the
perimeter of the house as they waited for further instructions from P/Supt. Mendoza.
A few minutes later, petitioner went out of the house and negotiated for the pull-out
of the police troops. No agreement materialized.

At around 2:00 a.m. and 4:00 a.m. of August 28, 2002, Senior Police Officer
2 Clemencio Nava (SPO2 Nava), who was posted at the back portion of the house,
saw Valerio emerge twice on top of the house and throw something. The discarded
objects landed near the wall of petitioners house and inside the compound of a
neighboring residence. SPO2 Nava, together with SPO1 Teodoro Neron and Jerome
T. Vega (Vega), radio announcer/reporter of RMN DYKR, as witness, recovered the
discarded objects, which turned out to be two (2) receivers of .45 caliber
pistol, model no. M1911A1 US, with serial number (SN) 763025, and model no.
M1911A1 US, with a defaced serial number. The recovered items were then
surrendered to SPO1 Nathaniel A. Tan (SPO1 Tan), Group Investigator, who utilized
them in applying for and obtaining a search warrant.

The warrant was served on petitioner at 9:30 a.m. Together with

a barangay captain, barangay kagawad, and members of the media, as witnesses,
the police team proceeded to search petitioners house. The team found and was able
to confiscate the following:

1. Two (2) pieces of Short Magazine of M16 Armalite Rifle;

2. Thirty five (35) pieces of live M16 ammos 5.56 Caliber; and
3. Fourteen (14) pieces of live ammos of Caliber 45 pistol.

Since petitioner and Valerio failed to present any documents showing their
authority to possess the confiscated firearms and the two recovered receivers, a
criminal information for violation of P.D. No. 1866, as amended by Republic Act
(R.A.) No. 8294, was filed against them.

For their exoneration, petitioner and Valerio argued that the issuance of the
search warrant was defective because the allegation contained in the application filed
and signed by SPO1 Tan was not based on his personal knowledge. They quoted this
pertinent portion of the application:

That this application was founded on confidential information received by

the Provincial Director, Police Supt. Edgardo Mendoza.[7]

They further asserted that the execution of the search warrant was infirm since
petitioner, who was inside the house at the time of the search, was not asked to
accompany the policemen as they explored the place, but was instead ordered to
remain in the living room (sala).

Petitioner disowned the confiscated items. She refused to sign the

inventory/receipt prepared by the raiding team, because the items allegedly belonged
to her brother, Benito Fajardo, a staff sergeant of the Philippine Army.
Petitioner denied that she had a .45 caliber pistol tucked in her waistband when
the raiding team arrived. She averred that such situation was implausible because
she was wearing garterized shorts and a spaghetti-strapped hanging blouse.[8]

Ruling of the RTC

The RTC rejected the defenses advanced by accused, holding that the same
were already denied in the Orders dated December 31, 2002 and April 20, 2005,
respectively denying the Motion to Quash Search Warrant and Demurrer to
Evidence. The said Orders were not appealed and have thus attained finality. The
RTC also ruled that petitioner and Valerio were estopped from assailing the legality
of their arrest since they participated in the trial by presenting evidence for their
defense. Likewise, by applying for bail, they have effectively waived such
irregularities and defects.

In finding the accused liable for illegal possession of firearms, the RTC
explained:
 Zaldy Valerio, the bodyguard of Elenita Fajardo, is a former soldier, having
served with the Philippine Army prior to his separation from his service for going
on absence without leave (AWOL). With his military background, it is safe to
conclude that Zaldy Valerio is familiar with and knowledgeable about different
types of firearms and ammunitions. As a former soldier, undoubtedly, he can
assemble and disassemble firearms.
It must not be de-emphasize[d] that the residence of Elenita Fajardo is
definitely not an armory or arsenal which are the usual depositories for firearms,
explosives and ammunition. Granting arguendo that those firearms and ammunition
were left behind by Benito Fajardo, a member of the Philippine army, the fact
remains that it is a government property. If it is so, the residence of Elenita Fajardo
is not the proper place to store those items. The logical explanation is that those
items are stolen property.

xxxx

The rule is that ownership is not an essential element of illegal possession

of firearms and ammunition. What the law requires is merely possession which
includes not only actual physical possession but also constructive possession or the
subjection of the thing to ones control and management. This has to be so if the
manifest intent of the law is to be effective. The same evils, the same perils to public
security, which the law penalizes exist whether the unlicensed holder of a
prohibited weapon be its owner or a borrower. To accomplish the object of this
law[,] the proprietary concept of the possession can have no bearing whatsoever.

xxxx

x x x. [I]n order that one may be found guilty of a violation of the decree, it
is sufficient that the accused had no authority or license to possess a firearm, and
that he intended to possess the same, even if such possession was made in good
faith and without criminal intent.

xxxx

To convict an accused for illegal possession of firearms and explosive under

P.D. 1866, as amended, two (2) essential elements must be indubitably
established, viz.: (a) the existence of the subject firearm ammunition or explosive
which may be proved by the presentation of the subject firearm or explosive or by
the testimony of witnesses who saw accused in possession of the same, and (b) the
negative fact that the accused has no license or permit to own or possess the firearm,
ammunition or explosive which fact may be established by the testimony or
certification of a representative of the PNP Firearms and Explosives Unit that the
accused has no license or permit to possess the subject firearm or explosive (Exhibit
G).

The judicial admission of the accused that they do not have permit or license
on the two (2) receivers of caliber .45 pistol, model M1911A1 US with SN 763025
and model M1911A1 of M16 Armalite rifle, thirty-five (35) pieces live M16
ammunition, 5.56 caliber and fourteen (14) pieces live caliber .45 ammunition
 confiscated and recovered from their possession during the search conducted by
members of the PISOG, Aklan Police Provincial Office by virtue of Search Warrant
No. 01 (9) 03 fall under Section 4 of Rule 129 of the Revised Rules of Court.[9]

Consequently, petitioner and Valerio were convicted of illegal possession of

firearms and explosives, punishable under paragraph 2, Section 1 of P.D. No. 1866,
as amended by R.A. No. 8294, which provides:

The penalty of prision mayor in its minimum period and a fine of Thirty
thousand pesos (P30,000.00) shall be imposed if the firearm is classified as high
powered firearm which includes those with bores bigger in diameter than .38 caliber
and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms
but considered powerful such as caliber .357 and caliber .22 center-fire magnum
and other firearms with firing capability of full automatic and by burst of two or
three: Provided, however, That no other crime was committed by the person
arrested.

Both were sentenced to suffer the penalty of imprisonment of six (6) years
and one (1) day to twelve (12) years of prisionmayor, and to pay a fine
of P30,000.00.

On September 1, 2006, only petitioner filed a Motion for Reconsideration,

which was denied in an Order dated October 25, 2006. Petitioner then filed a Notice
of Appeal with the CA.

Ruling of the CA
The CA concurred with the factual findings of the RTC, but disagreed with its
conclusions of law, and held that the search warrant was void based on the following
observations:

[A]t the time of applying for a search warrant, SPO1 Nathaniel A. Tan did not have
personal knowledge of the fact that appellants had no license to possess firearms as
required by law. For one, he failed to make a categorical statement on that point
during the application. Also, he failed to attach to the application a certification to
that effect from the Firearms and Explosives Office of the Philippine National
Police. x x x, this certification is the best evidence obtainable to prove that appellant
indeed has no license or permit to possess a firearm. There was also no explanation
given why said certification was not presented, or even deemed no longer
necessary, during the application for the warrant. Such vital evidence was simply
ignored.[10]
 Resultantly, all firearms and explosives seized inside petitioners residence
were declared inadmissible in evidence. However, the 2 receivers recovered by the
policemen outside the house of petitioner before the warrant was served were
admitted as evidence, pursuant to the plain view doctrine.

Accordingly, petitioner and Valerio were convicted of illegal possession of a

part of a firearm, punishable under paragraph 1, Section 1 of P.D. No. 1866, as
amended. They were sentenced to an indeterminate penalty of three (3) years, six (6)
months, and twenty-one (21) days to five (5) years, four (4) months, and twenty (20)
days of prision correccional, and ordered to pay a P20,000.00 fine.

Petitioner moved for reconsideration,[11] but the motion was denied in the CA
Resolution dated December 3, 2009.[12]Hence, the present recourse.

At the onset, it must be emphasized that the information filed against

petitioner and Valerio charged duplicitous offenses contrary to Section 13 of Rule
110 of the Rules of Criminal Procedure, viz.:

Sec. 13. Duplicity of offense. A complaint or information must charge but

one offense, except only in those cases in which existing laws prescribe a single
punishment for various offenses.

A reading of the information clearly shows that possession of the enumerated articles
confiscated from Valerio and petitioner are punishable under separate provisions of
Section 1, P.D. No. 1866, as amended by R.A. No. 8294.[13] Illegal possession of two
(2) pieces of short magazine of M16 Armalite rifle, thirty-five (35) pieces of live
M16 ammunition 5.56 caliber, and fourteen (14) pieces of live caliber .45
ammunition is punishable under paragraph 2 of the said section, viz.:
The penalty of prision mayor in its minimum period and a fine of Thirty
thousand pesos (P30,000.00) shall be imposed if the firearm is classified as high
powered firearm which includes those with bores bigger in diameter than .38
caliber and 9 millimeter such as caliber .40, 41, .44, .45 and also lesser calibered
firearms but considered powerful such as caliber .357 and caliber .22 center-fire
magnum and other firearms with firing capability of full automatic and by burst of
two or three: Provided, however, That no other crime was committed by the person
arrested.[14]

On the other hand, illegal possession of the two (2) receivers of a .45 caliber
pistol, model no. M1911A1 US, with SN 763025, and Model M1911A1 US, with a
defaced serial number, is penalized under paragraph 1, which states:
 Sec. 1. Unlawful manufacture, sale, acquisition, disposition or possession
of firearms or ammunition or instruments used or intended to be used in the
manufacture of firearms or ammunition. The penalty of prision correccional in its
maximum period and a fine of not less than Fifteen thousand pesos (P15,000.00)
shall be imposed upon any person who shall unlawfully manufacture, deal in,
acquire, dispose, or possess any low powered firearm, such as rimfire handgun,
.380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be used in the manufacture of any
firearm or ammunition: Provided, That no other crime was committed.[15]

This is the necessary consequence of the amendment introduced by R.A. No.

8294, which categorized the kinds of firearms proscribed from being possessed
without a license, according to their firing power and caliber. R.A. No. 8294 likewise
mandated different penalties for illegal possession of firearm according to the above
classification, unlike in the old P.D. No. 1866 which set a standard penalty for the
illegal possession of any kind of firearm. Section 1 of the old law reads:

Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or

Possession of Firearms or Ammunition or Instruments Used or Intended to be Used
in the Manufacture of Firearms of Ammunition. The penalty of reclusion temporal
in its maximum period to reclusion perpetua shall be imposed upon any person who
shall unlawfully manufacture, deal in, acquire dispose, or possess any firearms, part
of firearm, ammunition, or machinery, tool or instrument used or intended to be
used in the manufacture of any firearm or ammunition. (Emphasis ours.)

By virtue of such changes, an information for illegal possession of firearm

should now particularly refer to the paragraph of Section 1 under which the seized
firearm is classified, and should there be numerous guns confiscated, each must be
sorted and then grouped according to the categories stated in Section 1 of R.A. No.
8294, amending P.D. No. 1866. It will no longer suffice to lump all of the seized
firearms in one information, and state Section 1, P.D. No. 1866 as the violated
provision, as in the instant case,[16] because different penalties are imposed by the
law, depending on the caliber of the weapon. To do so would result in duplicitous
charges.

Ordinarily, an information that charges multiple offenses merits a quashal, but

petitioner and Valerio failed to raise this issue during arraignment. Their failure
constitutes a waiver, and they could be convicted of as many offenses as there were
charged in the information.[17] This accords propriety to the diverse convictions
handed down by the courts a quo.
Further, the charge of illegal possession of firearms and ammunition under
paragraph 2, Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, including
the validity of the search warrant that led to their confiscation, is now beyond the
province of our review since, by virtue of the CAs Decision, petitioner and Valerio
have been effectively acquitted from the said charges. The present review is
consequently only with regard to the conviction for illegal possession of a part of a
firearm.

The Issues

Petitioner insists on an acquittal and avers that the discovery of the two (2)
receivers does not come within the purview of the plain view doctrine. She argues
that no valid intrusion was attendant and that no evidence was adduced to prove that
she was with Valerio when he threw the receivers. Likewise absent is a positive
showing that any of the two receivers recovered by the policemen matched the .45
caliber pistol allegedly seen tucked in the waistband of her shorts when the police
elements arrived. Neither is there any proof that petitioner had knowledge of or
consented to the alleged throwing of the receivers.

Our Ruling

We find merit in the petition.

First, we rule on the admissibility of the receivers. We hold that the receivers were
seized in plain view, hence, admissible.

No less than our Constitution recognizes the right of the people to be secure in their
persons, houses, papers, and effects against unreasonable searches and seizures. This
right is encapsulated in Article III, Section 2, of the Constitution, which states:

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.
 Complementing this provision is the exclusionary rule embodied in Section
3(2) of the same article

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

There are, however, several well-recognized exceptions to the foregoing rule. Thus,
evidence obtained through a warrantless search and seizure may be admissible under
any of the following circumstances: (1) search incident to a lawful arrest; (2) search
of a moving motor vehicle; (3) search in violation of custom laws; (4) seizure of
evidence in plain view; and (5) when the accused himself waives his right against
unreasonable searches and seizures.[18]
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 thatview, are subject to seizure and may
be presented as evidence.[19] It applies when the following requisites concur: (a) the
law enforcement officer in search of the evidence has a prior justification for an
intrusion or is in a position from which he can view a particular area; (b) the
discovery of the evidence in plain view is inadvertent; and (c) it is immediately
apparent to the officer that the item he observes may be evidence of a crime,
contraband, or otherwise subject to seizure. The law enforcement officer must
lawfully make an initial intrusion or properly be in a position from which he can
particularly view the area. In the course of such lawful intrusion, he came
inadvertently across a piece of evidence incriminating the accused. The object must
be open to eye and hand, and its discovery inadvertent.[20]

Tested against these standards, we find that the seizure of the two receivers of the
.45 caliber pistol outside petitioners house falls within the purview of the plain view
doctrine.

First, the presence of SPO2 Nava at the back of the house and of the other law
enforcers around the premises was justified by the fact that petitioner and Valerio
were earlier seen respectively holding .45 caliber pistols before they ran inside the
structure and sought refuge. The attendant circumstances and the evasive actions of
petitioner and Valerio when the law enforcers arrived engendered a reasonable
ground for the latter to believe that a crime was being committed. There was thus
sufficient probable cause for the policemen to cordon off the house as they waited
for daybreak to apply for a search warrant.
Secondly, from where he was situated, SPO2 Nava clearly saw, on two different
instances, Valerio emerge on top of the subject dwelling and throw suspicious
objects. Lastly, considering the earlier sighting of Valerio holding a pistol, SPO2
Nava had reasonable ground to believe that the things thrown might be contraband
items, or evidence of the offense they were then suspected of committing. Indeed,
when subsequently recovered, they turned out to be two (2) receivers of .45 caliber
pistol.

The pertinent portions of SPO2 Navas testimony are elucidating:

Q When you arrived in that place, you saw policemen?

A Yes, sir.

Q What were they doing?

A They were cordoning the house.

Q You said that you asked your assistant team leader Deluso about that incident. What did
he tell you?
A Deluso told me that a person ran inside the house carrying with him a gun.

Q And this house you are referring to is the house which you mentioned is the police
officers were surrounding?
A Yes, sir.

Q Now, how long did you stay in that place, Mr. Witness?
A I stayed there when I arrived at past 10:00 oclock up to 12:00 oclock the following day.

Q At about 2:00 oclock in the early morning of August 28, 2002, can you recall where were
you?
A Yes, sir.

Q Where were you?

A I was at the back of the house that is being cordoned by the police.

Q While you were at the back of this house, do you recall any unusual incident?
A Yes, sir.

Q Can you tell the Honorable Court what was that incident?
A Yes, sir. A person went out at the top of the house and threw something.

Q And did you see the person who threw something out of this house?
A Yes, sir.

xxxx
 Q Can you tell the Honorable Court who was that person who threw that something outside
the house?
A It was Zaldy Valerio.

COURT: (to witness)

Q Before the incident, you know this person Zaldy Valerio?
A Yes, sir.

Q Why do you know him?

A Because we were formerly members of the Armed Forces of the Philippines.

xxxx

PROS. PERALTA:
Q When you saw something thrown out at the top of the house, did you do something if
any?
A I shouted to seek cover.

xxxx

Q So, what else did you do if any after you shouted, take cover?
A I took hold of a flashlight after five minutes and focused the beam of the flashlight on
the place where something was thrown.

Q What did you see if any?

A I saw there the lower [part] of the receiver of cal. 45.

xxxx

Q Mr. Witness, at around 4:00 oclock that early morning of August 28, 2002, do you recall
another unusual incident?
A Yes, sir.

Q And can you tell us what was that incident?

A I saw a person throwing something there and the one that was thrown fell on top of the
roof of another house.

Q And you saw that person who again threw something from the rooftop of the house?
A Yes, sir.

Q Did you recognize him?

A Yes, sir.

Q Who was that person?

A Zaldy Valerio again.

xxxx
 Q Where were you when you saw this Zaldy Valerio thr[o]w something out of the house?
A I was on the road in front of the house.

Q Where was Zaldy Valerio when you saw him thr[o]w something out of the house?
A He was on top of the house.

xxxx

Q Later on, were you able to know what was that something thrown out?
A Yes, sir.

Q What was that?

A Another lower receiver of a cal. 45.

xxxx
Q And what did he tell you?
A It [was] on the wall of another house and it [could] be seen right away.

xxxx

Q What did you do if any?

A We waited for the owner of the house to wake up.

xxxx

Q Who opened the fence for you?

A It was a lady who is the owner of the house.

Q When you entered the premises of the house of the lady, what did you find?
A We saw the lower receiver of this .45 cal. (sic)[21]

The ensuing recovery of the receivers may have been deliberate; nonetheless,
their initial discovery was indubitably inadvertent. It is not crucial that at initial
sighting the seized contraband be identified and known to be so. The law merely
requires that the law enforcer observes that the seized item may be evidence of a
crime, contraband, or otherwise subject to seizure.

Hence, as correctly declared by the CA, the two receivers were admissible as
evidence. The liability for their possession, however, should fall only on Valerio and
not on petitioner.

The foregoing disquisition notwithstanding, we find that petitioner is not liable for
illegal possession of part of a firearm.
 In dissecting how and when liability for illegal possession of firearms
attaches, the following disquisitions in People v. De Gracia[22] are instructive:

The rule is that ownership is not an essential element of illegal possession of firearms and
ammunition. What the law requires is merely possession which includes not only
actual physical possession but also constructive possession or the subjection of the
thing to one's control and management. This has to be so if the manifest intent of
the law is to be effective. The same evils, the same perils to public security, which
the law penalizes exist whether the unlicensed holder of a prohibited weapon be its
owner or a borrower. To accomplish the object of this law the proprietary concept
of the possession can have no bearing whatsoever.
But is the mere fact of physical or constructive possession sufficient to convict a
person for unlawful possession of firearms or must there be an intent to possess to
constitute a violation of the law? This query assumes significance since the offense
of illegal possession of firearms is a malum prohibitum punished by a special
law, in which case good faith and absence of criminal intent are not valid defenses.
When the crime is punished by a special law, as a rule, intent to commit the
crime is not necessary. It is sufficient that the offender has the intent to perpetrate
the act prohibited by the special law. Intent to commit the crime and intent to
perpetrate the act must be distinguished. A person may not have consciously
intended to commit a crime; but he did intend to commit an act, and that act is, by
the very nature of things, the crime itself. In the first (intent to commit the crime),
there must be criminal intent; in the second (intent to perpetrate the act) it is enough
that the prohibited act is done freely and consciously.
In the present case, a distinction should be made between criminal intent and intent
to possess. While mere possession, without criminal intent, is sufficient to convict
a person for illegal possession of a firearm, it must still be shown that there
was animus possidendi or an intent to possess on the part of the accused. Such
intent to possess is, however, without regard to any other criminal or felonious
intent which the accused may have harbored in possessing the firearm. Criminal
intent here refers to the intention of the accused to commit an offense with the use
of an unlicensed firearm. This is not important in convicting a person under
Presidential Decree No. 1866. Hence, in order that one may be found guilty of a
violation of the decree, it is sufficient that the accused had no authority or license
to possess a firearm, and that he intended to possess the same, even if such
possession was made in good faith and without criminal intent.
Concomitantly, a temporary, incidental, casual, or harmless possession or
control of a firearm cannot be considered a violation of a statute prohibiting the
possession of this kind of weapon, such as Presidential Decree No. 1866. Thus,
although there is physical or constructive possession, for as long as the animus
possidendi is absent, there is no offense committed.[23]

Certainly, illegal possession of firearms, or, in this case, part of a firearm, is

committed when the holder thereof:
 (1) possesses a firearm or a part thereof
(2) lacks the authority or license to possess the firearm.[24]

We find that petitioner was neither in physical nor constructive possession of

the subject receivers. The testimony of SPO2 Nava clearly bared that he only saw
Valerio on top of the house when the receivers were thrown. None of the witnesses
saw petitioner holding the receivers, before or during their disposal.

At the very least, petitioners possession of the receivers was merely incidental
because Valerio, the one in actual physical possession, was seen at the rooftop of
petitioners house. Absent any evidence pointing to petitioners participation,
knowledge or consent in Valerios actions, she cannot be held liable for illegal
possession of the receivers.

Petitioners apparent liability for illegal possession of part of a firearm can only
proceed from the assumption that one of the thrown receivers matches the gun seen
tucked in the waistband of her shorts earlier that night. Unfortunately, the
prosecution failed to convert such assumption into concrete evidence.

Mere speculations and probabilities cannot substitute for proof required to

establish the guilt of an accused beyond reasonable doubt. The rule is the same
whether the offenses are punishable under the Revised Penal Code, which are mala
in se, or in crimes, which are malum prohibitum by virtue of special law.[25] The
quantum of proof required by law was not adequately met in this case in so far as
petitioner is concerned.

The gun allegedly seen tucked in petitioners waistband was not identified with
sufficient particularity; as such, it is impossible to match the same with any of the
seized receivers. Moreover, SPO1 Tan categorically stated that he saw Valerio
holding two guns when he and the rest of the PISOG arrived in petitioners house. It
is not unlikely then that the receivers later on discarded were components of the two
(2) pistols seen with Valerio.

These findings also debunk the allegation in the information that petitioner
conspired with Valerio in committing illegal possession of part of a firearm. There
is no evidence indubitably proving that petitioner participated in the decision to
commit the criminal act committed by Valerio.

Hence, this Court is constrained to acquit petitioner on the ground of

reasonable doubt. The constitutional presumption of innocence in her favor was not
adequately overcome by the evidence adduced by the prosecution.

The CA correctly convicted Valerio with illegal possession of part of a

firearm.

In illegal possession of a firearm, two (2) things must be shown to exist: (a) the
existence of the subject firearm; and (b) the fact that the accused who possessed the
same does not have the corresponding license for it.[26]

By analogy then, a successful conviction for illegal possession of part of a

firearm must yield these requisites:

(a) the existence of the part of the firearm; and

(b) the accused who possessed the same does not have the license for the
firearm to which the seized part/component corresponds.

In the instant case, the prosecution proved beyond reasonable doubt the
elements of the crime. The subject receivers - one with the markings United States
Property and the other bearing Serial No. 763025 - were duly presented to the court
as Exhibits E and E-1, respectively. They were also identified by SPO2 Nava as the
firearm parts he retrieved af ter Valerio discarded them.[27] His testimony was
corroborated by DYKR radio announcer Vega, who witnessed the recovery of the
receivers.[28]

Anent the lack of authority, SPO1 Tan testified that, upon verification, it was
ascertained that Valerio is not a duly licensed/registered firearm holder of any type,
kind, or caliber of firearms.[29] To substantiate his statement, he submitted a
certification[30] to that effect and identified the same in court.[31] The testimony of
SPO1 Tan, or the certification, would suffice to prove beyond reasonable doubt the
second element.[32]

WHEREFORE, premises considered, the February 10, 2009 Decision of the Court
of Appeals is hereby REVERSED with respect to petitioner Elenita
Fajardo y Castro, who is hereby ACQUITTED on the ground that her guilt was not
proved beyond reasonable doubt.
SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

DIOSDADO M. PERALTA ROBERTO A. ABAD

Associate Justice Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
 CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairperson's Attestation, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the opinion
of the Courts Division.

RENATO C. CORONA
Chief Justice

[1]
Penned by Executive Justice Antonio L. Villamor, with Associate Justices Stephen C. Cruz and Florito S. Macalino,
concurring; rollo, pp. 71-84.
[2]
Id. at 32-69.
[3]
Information; CA rollo, pp. 6-7. (Emphasis supplied.)
[4]
Supra note 2, at 33.
[5]
Id.
[6]
Supra notes 1 and 2.
[7]
CA rollo, pp. 60-90; see also Exhibits 2 & 2a, records, Vol. I, p. 37.
[8]
Supra note 2, at 49-63.
[9]
Id. at 64-68.
[10]
Supra note 1, at 78-79.
[11]
Rollo, pp. 85-90.
[12]
Id. at 92-93.
[13]
Approved on June 6, 1997.
[14]
Emphasis supplied.
[15]
Emphasis supplied.
[16]
In fact, the signing prosecutor did not even cite Section 1; see Information, supra note 3.
[17]
The purpose of the rule against duplicity of offense, embodied in Sec. 13, Rule 110 of the Rules of Court, is to
give the defendant the necessary knowledge of the charge so that he may not be confused in his defense. (F.
REGALADO, REMEDIAL LAW COMPENDIUM, Volume II [8th ed., 2000], citing People v. Ferrer, 101 Phil. 234,
270 [1957]).

[18]
People v. Go, 457 Phil. 885, 926 (2003), citing People v. Doria, G.R. No. 125299, January 22, 1999, 301 SCRA
668, 704-705.
[19]
People v. Go, supra, at 928, citing People v. Musa, 217 SCRA 597, 610 (1993) and Harris v. United States,
390 U.S. 192, 72 L. ed. 231 (1927).
[20]
People v. Doria, supra note 18, at 711.
[21]
TSN, August 25, 2004, pp. 5-14.
[22]
G.R. Nos. 102009-10, July 6, 1994, 233 SCRA 716.
[23]
Id. at 725-727. (Citations omitted.)
[24]
See People v. Dela Rosa, G.R. No. 84857, January 16, 1998, 284 SCRA 158, 167, citing People v. Caling, G.R.
No. 94784, May 8, 1992, 208 SCRA 827.
[25]
People v. Dela Rosa, id. at 172.
[26]
See Teofilo Evangelista v. The People of the Philippines, G.R. No. 163267, May 5, 2010; People v. Eling, G.R.
No. 178546, April 30, 2008, 553 SCRA 724, 738; Advincula v. Court of Appeals, 397 Phil. 641, 649 (2000).

[27]
Q Now, when you saw this lower receiver of the cal. 45, what did you do if any?
A I called some uniformed men and asked them to guard the place.
Q You did not right away pick it up?
A No, sir, because we waited for some media persons for them to see what was thrown.
Q Were (sic) the media people eventually arrived?
A Yes, sir.
Q Were they able to see this lower receiver of cal. 45?
A Yes, sir.
xxxx
Q Were you the one who actually picked up this lower receiver of the cal. 45?
A Yes, sir, I picked it with the help of a wire.
Q If that lower receiver of cal. 45 including the wire in picking it up is shown to you, will you be able to identify
them?
A Yes, sir.
Q I am showing to you a receiver of the cal. 45 already marked as Exhibit E, please go over the same and tell if
this is the same lower receiver of cal. 45 including the wire?
A Yes, sir.
xxxx
Q You said that Zaldy Valerio threw something out of the house towards the direction of another house. Can you
remember having said so?
A Yes, sir.
xxxx
Q And you cannot enter this if the owner of the house will not open the gate for you?
A Yes, sir.
Q And so, were you able to enter this house?
A They let us in because they opened the fence.
xxxx
Q When you entered the premises of the house of the lady, what did you find?
A We saw the lower receiver of this .45 cal.
Q If that lower receiver of cal. 45 will be shown to you, will you be able to identify the same?
A Yes, sir.
Q I am showing to you this lower receiver of the cal. 45 already marked as Exhibit E-1, is that the same lower
receiver of cal. 45 which you saw in the early morning of August 28, 2002?
A Yes, sir.
Q What did you do with that lower receiver?
A I picked it up and when I have picked it up, turned it over to our investigator.
Q Can you tell us how did you pick up that lower receiver?
A Through the use of a wire.
Q Was there any media people present when you picked up this lower receiver of the cal. 45?
A Many. (TSN, August 25, 2004, pp. 8-14)
[28]
TSN, August 18, 2004, pp. 21-30.
[29]
TSN, August 4, 2004, pp. 16-17.
[30]
Exhibit G; records, Volume I, p. 8.
[31]
TSN, August 4, 2004, p. 16.
[32]
Valeroso v. People, G.R. No. 164815, February 22, 2008, 546 SCRA 450, 468-469.

FIRST DIVISION

[G.R. No. 153087. August 7, 2003]

BERNARD R. NALA, petitioner, vs. JUDGE JESUS M. BARROSO, JR.,
Presiding Judge, Regional Trial Court, Branch 10, 10th Judicial
Region, Malaybalay City, respondent.

DECISION
YNARES-SANTIAGO, J.:

In determining the existence of probable cause for the issuance of a search warrant,
the examining magistrate must make probing and exhaustive, not merely routine or pro
forma examination of the applicant and the witnesses.[1] Probable cause must be shown
by the best evidence that could be obtained under the circumstances. The introduction of
such evidence is necessary especially where the issue is the existence of a negative
ingredient of the offense charged, e.g., the absence of a license required by law.[2]
This is a petition for certiorari under Rule 65 of the Rules of Court, seeking to annul
the October 18, 2001[3] and February 15, 2002[4]Orders[5] of the Regional Trial Court of
Malaybalay City, Branch 10, which denied petitioners Omnibus Motion to Quash [6] Search
and Seizure Warrant No. 30-01.[7]
On June 25, 2001, PO3 Macrino L. Alcoser applied for the issuance of a warrant to
search the person and residence of petitioner Bernard R. Nala, who was referred to in the
application as Rumolo[8] Nala alias Long[9] of Purok 4, Poblacion, Kitaotao,
Bukidnon.[10] The application was filed in connection with petitioners alleged illegal
possession of one caliber .22 magnum and one 9 mm. pistol in violation of Republic Act
No. 8294, which amended Presidential Decree No. 1866, or the law on Illegal Possession
of Firearms. On the same day, after examining Alcoser and his witness Ruel Nalagon,
respondent Presiding Judge of RTC of Malaybalay City, Branch 10, issued Search and
Seizure Warrant No. 30-01, against Romulo Nala alias Lolong Nala who is said to be
residing at Purok 4, Poblacion, Kitaotao, Bukidnon.
At around 6:30 in the morning of July 4, 2001, Alcoser and other police officers
searched petitioners house and allegedly seized the following articles, to wit
-1- one piece caliber .38 revolver (snub-nose) with Serial Number 1125609
-1- one pc. fragmentation grenade (cacao type)
-1- one pc. .22 long barrel
-5- pcs live ammunition for caliber .38 revolver
-4- four pcs. of disposable lighter and unestimated numbers of cellophane used
for packing of shabu[11]
On July 5, 2001, Criminal Cases Nos. 10943-2001-P and 10944-2001-P for illegal
possession of firearms, ammunitions and explosives were filed against the petitioner
before the 5th Municipal Circuit Trial Court of Kitaotao, Bukidnon.[12]
On August 8, 2001, petitioner filed an Omnibus Motion[13] seeking to (1) quash Search
and Seizure Warrant No. 30-01; (2) declare inadmissible for any purpose the items
allegedly seized under the said warrant; and (3) direct the release of the air rifle seized
by the police officers.
Respondent judge denied the Omnibus Motion to Quash but ordered the return of the
air rifle to petitioner. As to the validity of the search warrant, respondent found that
probable cause was duly established from the deposition and examination of witness Ruel
Nalagon and the testimony of PO3 Macrino L. Alcoser who personally conducted a
surveillance to confirm the information given by Nalagon. The fact that the items seized
were not exactly the items listed in the warrant does not invalidate the same because the
items seized bear a direct relation to the crime of illegal possession of
firearms. Respondent judge also found that petitioner was sufficiently identified in the
warrant although his first name was erroneously stated therein as Romulo and not
Bernard, considering that the warrant was couched in terms that would make it
enforceable against the person and residence of petitioner and no other. The dispositive
portion of the questioned Order reads:
WHEREFORE, finding the Omnibus Motion to be without merit, the same is hereby
DENIED. However, as to the questioned Air Rifle, the same is allowed to be withdrawn
and ordered returned to herein movant.
SO ORDERED.[14]
Petitioner filed a motion for reconsideration but the same was denied on February 15,
2002.[15] Hence, he filed the instant petition alleging that respondent judge committed
grave abuse of discretion in issuing the questioned orders.
The issues for resolution are as follows: (1) Was petitioner sufficiently described in
the search and seizure warrant? (2) Was there probable cause for the issuance of a
search and seizure warrant against petitioner? and (3) Whether or not the firearms and
explosive allegedly found in petitioners residence are admissible in evidence against him
even though said firearms were not listed in the search and seizure warrant.
At the outset, it must be noted that the instant petition for certiorari was filed directly
with this Court in disregard of the rule on hierarchy of courts. In the interest of substantial
justice and speedy disposition of cases, however, we opt to take cognizance of this
petition in order to address the urgency and seriousness of the constitutional issues
raised.[16] In rendering decisions, courts have always been conscientiously guided by the
norm that on the balance, technicalities take a backseat against substantive rights, and
not the other way around. Thus, if the application of the Rules would tend to
frustrate rather than promote justice, it is always within our power to suspend the rules,
or except a particular case from its operation.[17]
Article III, Section 2 of the Constitution guarantees every individual the right to
personal liberty and security of homes against unreasonable searches and seizures, viz:
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.
The purpose of the constitutional provision against unlawful searches and seizures is
to prevent violations of private security in person and property, and unlawful invasion of
the sanctity of the home, by officers of the law acting under legislative or judicial sanction,
and to give remedy against such usurpations when attempted. [18]
Corollarily, Rule 126, Sections 4 and 5 of the 2000 Rules on Criminal Procedure
provide for the requisites for the issuance of a search warrant, to wit:
SEC. 4. Requisites for issuing search warrant. A search warrant shall not issue except
upon probable cause in connection with one specific offense to be determined personally
by the judge after examination under oath or affirmation of the complainant and the
witness he may produce, and particularly describing the place to be searched and the
things to be seized which may be anywhere in the Philippines.
SEC. 5. Examination of complainant; record. The judge must, before issuing the
warrant, personally examine in the form of searching questions and answers, in writing
and under oath, the complainant and the witnesses he may produce on facts personally
known to them and attach to the record their sworn statements, together with the affidavits
submitted.
More simply stated, the requisites of a valid search warrant are: (1) probable cause
is present; (2) such presence is determined personally by the judge; (3) the complainant
and the witnesses he or she may produce are personally examined by the judge, in writing
and under oath or affirmation; (4) the applicant and the witnesses testify on facts
personally known to them; and (5) the warrant specifically describes the person and place
to be searched and the things to be seized.[19]
On the first issue, the failure to correctly state in the search and seizure warrant the
first name of petitioner, which is Bernard and not Romulo or Rumolo, does not invalidate
the warrant because the additional description alias Lolong Nala who is said to be residing
at Purok 4, Poblacion, Kitaotao, Bukidnon sufficiently enabled the police officers to locate
and identify the petitioner. What is prohibited is a warrant against an unnamed party, and
not one which, as in the instant case, contains a descriptio personae that will enable the
officer to identify the accused without difficulty.[20]
The probable cause for a valid search warrant has been defined as such facts and
circumstances which would lead a reasonably discreet and prudent man to believe that
an offense has been committed, and that objects sought in connection with the offense
are in the place sought to be searched. This probable cause must be shown to be within
the personal knowledge of the complainant or the witnesses he may produce and not
based on mere hearsay.[21] In determining its existence, the examining magistrate must
make a probing and exhaustive, not merely routine or pro forma examination of the
applicant and the witnesses.[22] Probable cause must be shown by the best evidence that
could be obtained under the circumstances. On the part of the applicant and witnesses,
the introduction of such evidence is necessary especially where the issue is the existence
of a negative ingredient of the offense charged, e.g., the absence of a license required
by law.[23] On the other hand, the judge must not simply rehash the contents of the
affidavits but must make his own extensive inquiry on the existence of such license, as
well as on whether the applicant and the witnesses have personal knowledge thereof.
In Paper Industries Corporation of the Philippines (PICOP) v. Asuncion,[24] we
declared as void the search warrant issued by the trial court in connection with the offense
of illegal possession of firearms, ammunitions and explosives, on the ground, inter alia,
of failure to prove the requisite probable cause. The applicant and the witness presented
for the issuance of the warrant were found to be without personal knowledge of the lack
of license to possess firearms of the management of PICOP and its security agency. They
likewise did not testify as to the absence of license and failed to attach to the application
a no license certification from the Firearms and Explosives Office of the Philippine
National Police. Thus -
Bacolod appeared during the hearing and was extensively examined by the judge. But
his testimony showed that he did not have personal knowledge that the petitioners, in
violation of PD 1866, were not licensed to possess firearms, ammunitions or explosives
xxxxxxxxx
When questioned by the judge, Bacolod stated merely that he believed that the PICOP
security guards had no license to possess the subject firearms. This, however, does not
meet the requirement that a witness must testify on his personal knowledge, not belief.
xxxxxxxxx
Moreover, Bacolod failed to affirm that none of the firearms seen inside the PICOP
compound was licensed. Bacolod merely declared that the security agency and its guards
were not licensed. He also said that some of the firearms were owned by PICOP. Yet, he
made no statement before the trial court that PICOP, aside from the security agency, had
no license to possess those firearms. Worse, the applicant and his witnesses inexplicably
failed to attach to the application a copy of the aforementioned no license certification
from the Firearms and Explosives Office (FEO) of the PNP, or to present it during the
hearing. Such certification could have been easily obtained, considering that the FEO
was located in Camp Crame where the unit of Bacolod was also based.[25]
In the case at bar, the search and seizure warrant was issued in connection with the
offense of illegal possession of firearms, the elements of which are (1) the existence of
the subject firearm; and (2) the fact that the accused who owned or possessed it does not
have the license or permit to possess the same.[26] Probable cause as applied to illegal
possession of firearms would therefore be such facts and circumstances which would
lead a reasonably discreet and prudent man to believe that a person is in possession of
a firearm and that he does not have the license or permit to possess the same. Nowhere,
however, in the affidavit and testimony of witness Ruel Nalagon nor in PO3 Macrino L.
Alcosers application for the issuance of a search warrant was it mentioned that petitioner
had no license to possess a firearm. While Alcoser testified before the respondent judge
that the firearms in the possession of petitioner are not licensed, this does not qualify
as personal knowledge but only personal belief because neither he nor Nalagon verified,
much more secured, a certification from the appropriate government agency that
petitioner was not licensed to possess a firearm. This could have been the best evidence
obtainable to prove that petitioner had no license to possess firearms and ammunitions,
but the police officers failed to present the same.
Regrettably, even the examination conducted by the respondent judge on Nalagon
and Alcoser fell short of the required probing and exhaustive inquiry for the determination
of the existence of probable cause. Thus
COURT: [To witness Ruel Nalagon]
Q I am showing you this document/sworn statement of Ruel Nala[gon] given to PO3
Rodrigo Delfin, Investigator, SCOT/PDEU Bukidnon Police Provincial Office, Camp
Ramon Onahon, Malaybalay City on or about 12:30 in the afternoon of June 25,
2001, in the presence of PO3 Macrino Alcoser, Operative of Special Case Operation
Team. Are you the same Ruel Nalagon who has given a statement before the
above-named police officer?
A Yes, Sir.
 Q You have given a statement before the abovenamed police officer or Investigator that
you have personal knowledge that a certain Romulo Nala in Purok 4, Poblacion,
Kitaotao, Bukidnon has in his possession a .22 magnum pistol and 9MM
pistol[?] Why and how do you know that he has in his possession such pistols?
A Because I personally saw and witnessed him bringing or carrying said pistols.
Q Where did you see him bringing or carrying said pistols?
A I saw him personally in the public market of Kitaotao, Bukidnon. I also witnessed him
firing said pistol especially when he is drunk.
Q How often did you see him carrying and firing said pistols?
A Many times.
Q Do you know Romulo Nala? Are you friends with said person?
A Yes, sir because we are neighbors in Purok 4, Poblacion, Kitaotao, Bukidnon.
Q This Romulo Nala, is he bringing these two (2) pistols at the same time?
A No sir, he is bringing often times the .22 magnum and I saw him only twice bringing
9MM pistol.
Q Do you have something more to add or say in this investigation?
A None as of this moment.
That is all.[27]
COURT:
Next witness [PO3 Macrino L. Alcoser]
xxxxxxxxx
Q Regarding this application filed by your office, what is your basis in arriving into a
conclusion that this certain Romulo Nala of Purok 4, Poblacion, Kitaotao, Bukidnon
has in his possession illegal firearms?
A Based on the report of our reliable asset, a civilian agent who was able to personally
witness this Mr. Romulo Nala who has in his possession one (1) .22 magnum and
one (1) 9MM pistols which are unlicensed.
Q What action [was] commenced by your office if any as to the report made by your
asset regarding the alleged possession of Mr. Romulo Nala of unlicensed firearms?
A Our officer through authorized personnel, conducted surveillance operation on the
spot, headed by this affiant.
Q What was the result of the surveillance conducted by your office?
A The result turned out to be positive and we have [concrete] evidence that indeed this
Romulo Nala is engaged with the above illegal act.
Q Are there more information you wish to inform this Court.
A None, as of the moment.
Q Do you affirm the truthfulness of the above statement made by you and [will you]
voluntarily sign the same?
A Yes, sir.
That is all.[28]
It did not even occur to the examining judge to clarify how did the police officers
conduct an on the spot surveillance on June 25, 2001 on a 2-hour interval between 12:30
p.m.,[29] when Nalagon executed the affidavit, and 2:30 p.m., [30] when PO3 Macrino L.
Alcoser testified before the respondent judge that they conducted surveillance operation
on the spot right after Nalagon executed his affidavit. Even if we apply the presumption
of regularity in the performance of duty, the on the spot surveillance claimed by Alcoser
contradicts his statement in the application for the issuance of warrant that he conducted
long range surveillance of petitioner. At any rate, regardless of the nature of the
surveillance and verification of the information carried out by the police officers, the fact
remains that both the applicant, PO3 Macrino L. Alcoser, and his witness Ruel Nalagon
did not have personal knowledge of petitioners lack of license to possess firearms,
ammunitions and explosive; and did not adduce the evidence required to prove the
existence of probable cause that petitioner had no license to possess a firearm. Hence,
the search and seizure warrant issued on the basis of the evidence presented is void.
Can petitioner be charged with illegal possession of firearms and explosive allegedly
seized from his house? Petitioner contends that said articles are inadmissible as evidence
against him because they were not the same items specifically listed in the warrant. The
Office of the Provincial Prosecutor, on the other hand, claims that petitioner should be
held liable because the items seized bear a direct relation to the offense of illegal
possession of firearms. These arguments, however, become immaterial in view of the
nullity of the search warrant which made possible the seizure of the questioned articles.
The settled rule is that where entry into the premises to be searched was gained by
virtue of a void search warrant, prohibited articles seized in the course of the search are
inadmissible against the accused. In Roan v. Gonzales,[31] the prosecution sought to
charge the accused with illegal possession of firearms on the basis of the items seized in
a search through a warrant which the Court declared as void for lack of probable cause. In
ruling against the admissibility of the items seized, the Court said
Prohibited articles may be seized but only as long as the search is valid. In this case, it
was not because: 1) there was no valid search warrant; and 2) absent such a warrant,
the right thereto was not validly waived by the petitioner. In short, the military officers who
entered the petitioners premises had no right to be there and therefore had no right either
to seize the pistol and bullets.[32]
Conformably, the articles allegedly seized in the house of petitioner cannot be used
as evidence against him because access therein was gained by the police officer using a
void search and seizure warrant. It is as if they entered petitioners house without a
warrant, making their entry therein illegal, and the items seized, inadmissible.
Moreover, it does not follow that because an offense is malum prohibitum, the subject
thereof is necessarily illegal per se. Motive is immaterial in mala prohibita, but the
subjects of this kind of offense may not be summarily seized simply because they are
prohibited. A warrant is still necessary,[33] because possession of any firearm becomes
unlawful only if the required permit or license therefor is not first obtained.[34]
So also, admissibility of the items seized cannot be justified under the plain view
doctrine. It is true that, as an exception, the police officer may seize without warrant
illegally possessed firearm, or any contraband for that matter, inadvertently found in plain
view. However, said officer must have a prior right to be in the position to have that view
of the objects to be seized. The plain view doctrine applies when the following requisites
concur: (a) the law enforcement officer in search of the evidence has a prior justification
for an intrusion or is in a position from which he can view a particular area; (b) the
discovery of the evidence in plain view is inadvertent; (c) it is immediately apparent to the
officer that the item he observes may be evidence of a crime, contraband or otherwise
subject to seizure. The law enforcement officer must lawfully make an initial intrusion or
properly be in a position from which he can particularly view the area. In the course of
such lawful intrusion, he came inadvertently across a piece of evidence incriminating the
accused. The object must be open to eye and hand and its discovery inadvertent. [35]
No presumption of regularity may be invoked in aid of the process when the officer
undertakes to justify an encroachment of rights secured by the Constitution. In this case,
the firearms and explosive were found at the rear portion of petitioners house [36] but the
records do not show how exactly were these items discovered. Clearly, therefore, the
plain view doctrine finds no application here not only because the police officers had no
justification to search the house of petitioner (their search warrant being void for lack of
probable cause), but also because said officers failed to discharge the burden of proving
that subject articles were inadvertently found in petitioners house.
The issue of the reasonableness of the implementation of the search and seizure
warrant, i.e., whether the search was conducted in the presence of witnesses and
whether the air rifle which the trial court ordered to be returned to petitioner was indeed
among the items seized during the search, are matters that would be best determined in
the pending administrative case for grave misconduct and irregularity in the performance
of duty against the police officers who conducted the search.
Considering that the search and seizure warrant in this case was procured in violation
of the Constitution and the Rules of Court, all the items seized in petitioners house, being
fruits of the poisonous tree, are inadmissible for any purpose in any proceeding. The
exclusion of these unlawfully seized evidence is the only practical means of enforcing the
constitutional injunction against unreasonable searches and seizures.[37] Hence, the
complaints filed against petitioner for illegal possession of firearms and explosive based
on illegally obtained evidence have no more leg to stand on.[38] Pending resolution of said
cases, however, the articles seized are to remain in custodia legis.[39]
Finally, the Court notes that among the items seized by the officers were four pcs. of
disposable lighter and unestimated numbers of cellophane used for packing of
shabu. These items are not contraband per se, nor objects in connection with the offense
of illegal possession of firearms for which the warrant was issued. Moreover, it is highly
preposterous to assume that these items were used in connection with offenses involving
illegal drugs. Even granting that they were, they would still be inadmissible against the
petitioner for being products of an illegal search. Hence, the subject articles should be
returned to petitioner.[40]
WHEREFORE, in view of all the foregoing, the petition is GRANTED. The October
18, 2001 and February 15, 2002 Orders of the Regional Trial Court of Malaybalay City,
Branch 10, are REVERSED and SET ASIDE insofar as it denied petitioners omnibus
motion to quash the search warrant. Search and Seizure Warrant No. 30-01 dated June
25, 2001 is declared VOID and the articles seized by virtue thereof are declared
inadmissible in evidence. Pending resolution of Criminal Case Nos. 10943-2001-P and
10944-2001-P for illegal possession of firearms, ammunitions and explosive against
petitioner, the items (caliber .38 revolver with Serial Number 1125609 and 5 pieces live
ammunitions; fragmentation grenade; and .22 long barrel) subject thereof, must remain
in custodia legis. The four pieces of disposable lighter and cellophane seized should be
returned to petitioner.
SO ORDERED.
 Davide, Jr., C.J., (Chairman), Vitug, Carpio, and Azcuna, JJ., concur.

[1] People v. Tee, G.R. Nos. 140546-47, 20 January 2003, citing the Constitution, Article III, Section 2; 2000
Rules on Criminal Procedure, Rule 126, Sections 4 and 5.See also Pendon v. Court of Appeals,
G.R. No. 84873, 16 November 1990, 191 SCRA 429, 438, citing Roan v. Gonzales, G.R. No.
71410, 25 November 1986, 145 SCRA 687; Mata v. Bayona, G.R. No. L-50720, 26 March 1984,
128 SCRA 388.
[2] Paper Industries Corporation of the Philippines v. Asuncion, 366 Phil. 717, 736-737 (1999), citing People
v. Estrada, 357 Phil. 377 (1998).
[3] Rollo, p. 91.
[4] Rollo, p. 130.
[5] Penned by Judge Jesus M. Barroso, Jr.
[6] Records, p. 8.
[7] Records, p. 6.
[8] Spelled as Rumolo in the application for search and seizure warrant and spelled as Romulo in the issued
search and seizure warrant.
[9] Records, p. 1.
[10] Id.
[11] Return of Search Warrant noted at the back of Search and Seizure Warrant No. 30-01, Records, p. 6.
[12] Rollo, pp. 161-162.
[13] Rollo, p. 46.
[14] Rollo, p. 93.
[15] Rollo, p. 130.
[16] Roan v. Gonzales, supra, note 1, at p. 698, citing Burgos, Sr. v. Chief of Staff, 218 Phil. 754
(1984); Philippine Rural Electric Cooperatives Association, Inc. v. Secretary of the Department of
Interior and Local Government, G.R. No. 143076, 10 June 2003. See also Fortich v. Corona, 352
Phil. 461, 480-481 (1998), citing People v. Cuaresma, G.R. No. 67787, 18 April 1989, 172 SCRA
415.
[17] Coronel v. Desierto, G.R. No. 149022, 8 April 2003, citing People v. Flores, 336 Phil. 58 (1997); De
Guzman v. Sandiganbayan, G.R. No. 103276, 11 April 1996, 256 SCRA 171; Manila Railroad Co.
v. Atty. General, 20 Phil. 523 (1911); Viuda de Ordoveza v. Raymundo, 63 Phil. 275 (1936); Olacao
v. National Labor Relations Commission, G.R. No. 81390, 29 August 1989, 177 SCRA 38; Legasto
v. Court of Appeals, G.R. Nos. 76854-60, 25 April 1989, 172 SCRA 722; City Fair Corporation v.
National Labor Relations Commission, 313 Phil. 464 (1995); Republic v. Court of Appeals, G.R.
Nos. L-31303-04, 31 May 1978, 83 SCRA 453; Bank of America, NT & SA v. Gerochi, Jr., G.R. No.
73210, 10 February 1994, 230 SCRA 9.
[18] Silva v. Presiding Judge, Regional Trial Court of Negros, Oriental, Branch XXXIII, G.R. No. 81756, 21
October 1991, 203 SCRA 140, 144, citing Alvero v. Dizon, 76 Phil. 637 (1946).
[19] Paper Industries Corporation of the Philippines v. Asuncion, supra, note 2 at p. 731, citing Republic v.
Sandiganbayan, G.R. Nos. 112708-09, 29 March 1996, 255 SCRA 438.
[20] People v. Veloso, 48 Phil. 169, 181 (1925).
[21] Prudente v. Dayrit, G.R. No. 82870, 14 December 1989, 180 SCRA 69, 76, citing Quintero v. National
Bureau of Investigation, G.R. No. L-35149, 23 June 1988, 162 SCRA 467; 20th Century Fox Film
 Corporation v. Court of Appeals, G.R. Nos. L-76649-51, 19 August 1988, 164 SCRA 655; People
v. Sy Juco, 64 Phil. 667 (1937); Alvarez v. CFI, 64 Phil. 33 (1937); United States v. Addison, 28
Phil. 566 (1914).
[22] People v. Tee, supra, note 1; Pendon v. Court of Appeals, supra, note 1.
[23] Paper Industries Corporation of the Philippines v. Asuncion, supra, note 2.
[24] Id.
[25] Id., at pp. 733-736.
[26] Del Rosario v. People, G.R. No. 142295, 31 May 2001, 358 SCRA 373, 389, citing People v. Castillo,
382 Phil. 499 (2000); People v. Dorimon, 378 Phil. 660 (1999); People v. Cerveto, 374 Phil. 220
(1999); Cadua v. Court of Appeals, 371 Phil. 627 (1999); People v. Khor, 366 Phil. 762 (1999).
[27] Records, pp. 4-5.
[28] Records, pp. 5 and 5a.
[29] Records, p. 2.
[30] Records, p. 4.
[31] Supra, note 1.
[32] Id., at pp. 696-697.
[33] Id., at 697.
[34] Del Rosario v. People, supra, note 27.
[35] People v. Doria, 361 Phil. 595, 633-634 (1999), citing Harris v. United States, 390 U.S. 234, 19 L. Ed.
2d 1067, 1069 (1968); Bernas, The Constitution of the Republic of the Philippines, at 174 (1996);
Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564 (1971); Texas v. Brown, 460 U.S. 730,
75 L. Ed. 2d 502, 510 [1983]; People v. Musa, G.R. No. 96177, 27 January 1993, 217 SCRA 597,
611 (1993); Roan v. Gonzales, supra, note 1; Cruz, Constitutional Law, p. 151 (1996).
[36] Petition, Rollo, pp. 30-31.
[37] Paper Industries Corporation of the Philippines v. Asuncion, supra, note 2 at p. 740, citing The
Constitution, Article III, Section 2; Stonehill v. Diokno, 126 Phil. 738 (1967); Mapp v. Ohio, 367 US
643 (1961).
[38] Id.
[39] Roan v. Gonzales, supra, note 1 at p. 698.
[40] Del Rosario v. People, supra, note 27, at pp. 394-395.