G.R. No.

123595 December 12, 1997

SAMMY MALACAT y MANDAR, petitioner,

Facts:

An Information was filed before the Regional Trial Court (RTC) of Manila, Branch 5 against petitioner Sammy Malacat y Mandar
charging him for violating Section 3 of Presidential Decree No. 1866,  as follows:

That on or about August 27, 1990, Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated National
Police, Police Station No. 3, Quiapo, Manila, testified that on 27 August 1990, at about 6:30 p.m., in response to bomb threats
reported seven days earlier, he was on foot patrol with three other police officers (all of them in uniform) along Quezon Boulevard,
Quiapo, Manila, near the Mercury Drug store at Plaza Miranda. They chanced upon two groups of Muslim-looking men, with each
group, comprised of three to four men, posted at opposite sides of the corner of Quezon Boulevard near the Mercury Drug Store.
These men were acting suspiciously with "[t]heir eyes. . . moving very fast.

Yu and his companions positioned themselves at strategic points and observed both groups for about thirty minutes. The police
officers then approached one group of men, who then fled in different directions. As the policemen gave chase, Yu caught up with
and apprehended petitioner. Upon searching petitioner, Yu found a fragmentation grenade tucked inside petitioner's "front waist
line." Yu's companion, police officer Rogelio Malibiran, apprehended Abdul Casan from whom a .38 caliber revolver was recovered.
Petitioner and Casan were then brought to Police Station No. 3 where Yu placed an "X" mark at the bottom of the grenade and
thereafter gave it to his commander.

Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner and a certain Abdul Casan were brought in by
Sgt. Saquilla for investigation. Forthwith, Serapio conducted the inquest of the two suspects, informing them of their rights to remain
silent and to be assisted by competent and independent counsel. Despite Serapio's advice, petitioner and Casan manifested their
willingness to answer questions even without the assistance of a lawyer. Serapio then took petitioner's uncounselled confession,
there being no PAO lawyer available, wherein petitioner admitted possession of the grenade. Thereafter, Serapio prepared the
affidavit of arrest and booking sheet of petitioner and Casan. Later, Serapio turned over the grenade to the Intelligence and Special
Action Division (ISAD) of the Explosive Ordinance Disposal Unit for examination. 

Petitioner was the lone defense witness. He declared that he arrived in Manila on 22 July 1990 and resided at the Muslim Center in
Quiapo, Manila. At around 6:30 in the evening of 27 August 1990, he went to Plaza Miranda to catch a breath of fresh air. Shortly
after, several policemen arrived and ordered all males to stand aside. The policemen searched petitioner and two other men, but
found nothing in their possession. However, he was arrested with two others, brought to and detained at Precinct No. 3, where he
was accused of having shot a police officer. The officer showed the gunshot wounds he allegedly sustained and shouted at
petitioner "[i]to ang tama mo sa akin." This officer then inserted the muzzle of his gun into petitioner's mouth and said, "[y]ou are the
one who shot me." Petitioner denied the charges and explained that he only recently arrived in Manila. However, several other
police officers mauled him, hitting him with benches and guns. Petitioner was once again searched, but nothing was found on him.
He saw the grenade only in court when it was presented. 

The trial court ruled that the warrantless search and seizure of petitioner was akin to it a "stop and frisk," where a "warrant and
seizure can be effected without necessarily being preceded by an arrest" and "whose object is either to maintain the  status
quo momentarily while the police officer seeks to obtain more information." Probable cause was not required as it was not certain
that a crime had been committed, however, the situation called for an investigation, hence to require probable cause would have
been "premature."  The RTC emphasized that Yu and his companions were "[c]onfronted with an emergency, in which the delay
necessary to obtain a warrant, threatens the destruction of evidence" and the officers "[h]ad to act in haste," as petitioner and his
companions were acting suspiciously, considering the time, place and "reported cases of bombing." Further, petitioner's group
suddenly ran away in different directions as they saw the arresting officers approach, thus "[i]t is reasonable for an officer to conduct
a limited search, the purpose of which is not necessarily to discover evidence of a crime, but to allow the officer to pursue his
investigation without fear of violence." 

The trial court then ruled that the seizure of the grenade from petitioner was incidental to a lawful arrest, and since petitioner "[l]ater
voluntarily admitted such fact to the police investigator for the purpose of bombing the Mercury Drug Store," concluded that
sufficient evidence existed to establish petitioner's guilt beyond reasonable doubt.

In its decision 19 dated 10 February 1994 but promulgated on 15 February 1994, the trial court thus found petitioner guilty of the
crime of illegal possession of explosives under Section 3 of P.D. No. 186, and sentenced him to suffer: [T]he penalty of not less than
SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than
THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum.

In his Appellant's Brief filed with the Court of Appeals, petitioner asserted that the warrantless arrest was invalid due to absence of
any of the conditions provided for in Section 5 of Rule 113 of the Rules of Court, citing  People vs. Mengote. 23 As such, the search
was illegal, and the hand grenade seized, inadmissible in evidence.

In its decision of 24 January 1996, the Court of Appeals affirmed the trial court, it ruled that the arrest was lawful on the ground that
there was probable cause for the arrest as petitioner was "attempting to commit an offense
Finally, the Court of Appeals held that the rule laid down in People v. Mengote, which petitioner relied upon, was inapplicable in light
of "[c]rucial differences," to wit:

[In Mengote] the police officers never received any intelligence report that someone [at] the corner of a busy street [would] be in
possession of a prohibited article. Here the police officers were responding to a [sic] public clamor to put a check on the series of
terroristic bombings in the Metropolis, and, after receiving intelligence reports about a bomb threat aimed at the vicinity of the
historically notorious Plaza Miranda, they conducted foot patrols for about seven days to observe suspicious movements in the area.
Furthermore, in Mengote, the police officers [had] no personal knowledge that the person arrested has committed, is actually
committing, or is attempting to commit an offense. Here, PO3 Yu [had] personal knowledge of the fact that he chased Malacat in
Plaza Miranda two days before he finally succeeded in apprehending him.

Issue: Whether or not the respondent court erred in affirming the finding of the trial court that the warranties arrest of petitioner was
valid and legal. (YES)

Ruling:

Petitioner merely restates his arguments below regarding the validity of the warrantless arrest and search, then disagrees with the
finding of the Court of Appeals that he was "attempting to commit a crime," as the evidence for the prosecution merely disclosed that
he was "standing at the corner of Plaza Miranda and Quezon Boulevard" with his eyes "moving very fast" and "looking at every
person that come (sic) nearer (sic) to them." Finally, petitioner points out the factual similarities between his case and that of  People
v. Mengote to demonstrate that the Court of Appeals miscomprehended the latter.

The challenged decision must immediately fall on jurisdictional grounds. To repeat, the penalty imposed by the trial court was:

[N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and
not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum.

The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall unlawfully possess grenades is reclusion
temporal in its maximum period to reclusion perpetua.

For purposes of determining appellate jurisdiction in criminal cases, the maximum of the penalty, and not the minimum, is taken into
account. Since the maximum of the penalty is reclusion perpetua, the appeal therefrom should have been to us, and not the Court of
Appeals, pursuant to Section 9(3) of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129),  in relation to Section 17 of the
Judiciary Act of 1948, Section 5(2) of Article VIII of the Constitution and Section 3(c) of Rule 122 of the Rules of Court. 

We then set aside the decision of the Court of Appeals for having been rendered without jurisdiction, and consider the appeal as
having been directly brought to us, with the petition for review as petitioner's Brief for the Appellant, the comment thereon by the
Office of the Solicitor General as the Brief for the Appellee and the memoranda of the parties as their Supplemental Briefs.

Deliberating on the foregoing pleadings, we find ourselves convinced that the prosecution failed to establish petitioner's guilt with
moral certainty.

First, serious doubt surrounds the story of police officer Yu that a grenade was found in and seized from petitioner's possession.
Notably, Yu did not identify, in court, the grenade he allegedly seized. According to him, he turned it over to his commander after
putting an "X" mark at its bottom; however, the commander was not presented to corroborate this claim. On the other hand, the
grenade presented in court and identified by police officer Ramilo referred to what the latter received from Lt. Eduardo Cabrera and
police officer Diotoy not immediately after petitioner's arrest, but nearly seven (7) months later, or on 19 March 1991; further, there
was no evidence whatsoever that what Ramilo received was the very same grenade seized from petitioner. In his testimony, Yu
never declared that the grenade passed on to Ramilo was the grenade the former confiscated from petitioner.

Second, if indeed petitioner had a grenade with him, and that two days earlier he was with a group about to detonate an explosive at
Plaza Miranda, and Yu and his fellow officers chased, but failed to arrest them, then considering that Yu and his three fellow officers
were in uniform and therefore easily cognizable as police officers, it was then unnatural and against common experience that
petitioner simply stood there in proximity to the police officers. Note that Yu observed petitioner for thirty minutes and must have
been close enough to petitioner in order to discern petitioner's eyes "moving very fast."

Finally, even assuming that petitioner admitted possession of the grenade during his custodial investigation by police officer
Serapio, such admission was inadmissible in evidence for it was taken in palpable violation of Section 12(1) and (3) of Article III of
the Constitution, which provide as follows:

Sec. 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.

xxx xxx xxx

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.
Serapio conducted the custodial investigation on petitioner the day following his arrest. No lawyer was present and Serapio could
not have requested a lawyer to assist petitioner as no PAO lawyer was then available. Thus, even if petitioner consented to the
investigation and waived his rights to remain silent and to counsel, the waiver was invalid as it was not in writing, neither was it
executed in the presence of counsel.

Even granting ex gratia that petitioner was in possession of a grenade, the arrest and search of petitioner were invalid, as will be
discussed below.

The general rule as regards arrests, searches and seizures is that a warrant is needed in order to validly effect the same.  The
Constitutional prohibition against unreasonable arrests, searches and seizures refers to those effected without a validly issued
warrant, subject to certain exceptions. As regards valid warrantless arrests, these are found in Section 5, Rule 113 of the Rules of
Court, which reads, in part:

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

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

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

(c) When the person to be arrested is a prisoner who has escaped . . .

A warrantless arrest under the circumstances contemplated under Section 5(a) has been denominated as one " in flagrante delicto,"
while that under Section 5(b) has been described as a "hot pursuit" arrest.

Turning to valid warrantless searches, they are limited to the following: (1) customs searches; (2) search of moving
vehicles; (3) seizure of evidence in plain view; (4) consent searches;  (5) a search incidental to a lawful arrest; and (6) a
"stop and frisk."

In the instant petition, the trial court validated the warrantless search as a "stop and frisk" with "the seizure of the grenade from the
accused [as an appropriate incident to his arrest," hence necessitating a brief discussion on the nature of these exceptions to the
warrant requirement.

At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a search incidental to a lawful arrest.
These two types of warrantless searches differ in terms of the requisite quantum of proof before they may be validly effected and in
their allowable scope.

In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search, the legality of the
arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used as a pretext for conducting a
search.  In this instance, the law requires that there first be a lawful arrest before a search can be made — the process cannot be
reversed.At bottom, assuming a valid arrest, the arresting officer may search the person of the arrestee and the area within which
the latter may reach for a weapon or for evidence to destroy, and seize any money or property found which was used in the
commission of the crime, or the fruit of the crime, or that which may be used as evidence, or which might furnish the arrestee with
the means of escaping or committing violence. 

Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in light of the lack of personal
knowledge on the part of Yu, the arresting officer, or an overt physical act, on the part of petitioner, indicating that a crime had just
been committed, was being committed or was going to be committed. Having thus shown the invalidity of the warrantless arrest in
this case, plainly, the search conducted on petitioner could not have been one incidental to a lawful arrest.

We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited protective search of outer clothing for
weapons," as laid down in Terry, thus:

We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous,
where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where
nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the
protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt
to discover weapons which might be used to assault him.

Other notable points of Terry are that while probable cause is not required to conduct a "stop and frisk," it nevertheless holds that
mere suspicion or a hunch will not validate a "stop and frisk." A genuine reason must exist, in light of the police officer's experience
and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. Finally, a "stop-and-
frisk" serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition
that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of
investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-
preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a
deadly weapon that could unexpectedly and fatally be used against the police officer.
Here, there are at least three (3) reasons why the "stop-and-frisk" was invalid:

First, we harbor grave doubts as to Yu's claim that petitioner was a member of the group which attempted to bomb Plaza Miranda
two days earlier. This claim is neither supported by any police report or record nor corroborated by any other police officer who
allegedly chased that group. Aside from impairing Yu's credibility as a witness, this likewise diminishes the probability that a genuine
reason existed so as to arrest and search petitioner.

Second, there was nothing in petitioner's behavior or conduct which could have reasonably elicited even mere suspicion other than
that his eyes were "moving very fast" — an observation which leaves us incredulous since Yu and his teammates were nowhere
near petitioner and it was already 6:30 p.m., thus presumably dusk. Petitioner and his companions were merely standing at the
corner and were not creating any commotion or trouble, as Yu explicitly declared on cross-examination.

Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly weapon. None was
visible to Yu, for as he admitted, the alleged grenade was "discovered" "inside the front waistline" of petitioner, and from all
indications as to the distance between Yu and petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade,
could not have been visible to Yu. In fact, as noted by the trial court:

When the policemen approached the accused and his companions, they were not yet aware that a handgrenade was tucked inside
his waistline. They did not see any bulging object in [sic] his person. 

What is unequivocal then in this case are blatant violations of petitioner's rights solemnly guaranteed in Sections 2 and 12(1) of
Article III of the Constitution.

WHEREFORE, the challenged decision of the Seventeenth Division of the Court of Appeals in CA-G.R. CR No. 15988 is SET
ASIDE for lack of jurisdiction on the part of said Court and, on ground of reasonable doubt, the decision of 10 February 1994 of
Branch 5 of the Regional Trial Court of Manila is REVERSED and petitioner SAMMY MALACAT y MANDAR is hereby ACQUITTED
and ORDERED immediately released from detention, unless his further detention is justified for any other lawful cause.