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FIRST DIVISION

G.R. Nos. 129756-58. January 28, 2000

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. JULIAN DEEN ESCAO, VIRGILIO TOME USANA and JERRY CASABAAN LOPEZ, Accused.

VIRGILIO TOME USANA and JERRY CASABAAN LOPEZ, Accused-Appellants.

D E C I S I O N

DAVIDE, JR., C.J.:

Accused-appellants Virgilio T. Usana and Jerry C. Lopez, together with Julian D. Escao, were charged before the Regional Trial Court of Makati City, Branch 64, in Criminal Case No. 95-936 with violation of Section 4, Article II of Republic Act No. 6425,¹ as amended. Escao and Usana were also charged in Criminal Case No. 95-937 and No. 95-938 with illegal possession of firearms and ammunition in violation of Presidential Decree No. 1866.

The accusatory portion of the Information in Criminal Case No. 95-936 reads as follows:

That on or about the 5th day of April, 1995, in the City of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and all of them mutually helping and aiding one another, without being authorized by law, did then and there willfully, unlawfully and feloniously sell, distribute and transport 3.3143 kilograms of "HASHISH", a prohibited drug, in violation of the above-cited law.²cräläwvirtualibräry

The charge against accused Julian D. Escao in Criminal Case No. 95-937 reads as follows:

That on or about the 5th day of April, 1995, in the City of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully and feloniously have in his possession, direct custody and control one (1) pc. of cal. .45 pistol, government model with Serial No. 990255, with magazine containing 7 live ammos and two (2) more magazines for cal. .45 pistol containing 7 live ammos each, without first securing the necessary license or permit from the proper government authorities and which firearm and ammunitions he carried outside of his residence.³cräläwvirtualibräry

The accusatory portion of the information against Virgilio Usana in Criminal Case No. 95-938 reads:

That on or about the 5th day of April, 1995, in the City of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession, direct custody and control One (1) pc. of rifle carbine with Serial No. 7176644 with a banana type magazine loaded with 28 live ammunitions without first securing the necessary license or permit from the proper government authorities and which firearms and ammunitions he carried outside of his residence.⁴cräläwvirtualibräry

The cases were consolidated and jointly tried.

In its Decision of 30 May 1997,⁵ which was promulgated on 17 June 1997, the trial court convicted Escao and herein appellants in Criminal Case No. 95-936, Escao in Criminal Case No. 95-937, and appellant Usana in Criminal Case No. 95-938.

Escao filed on 19 June 1997 a Notice of Appeal, but on 16 July 1997, he filed a Manifestation and Withdrawal of Appeal,⁶ which was granted by the trial court in its Order of 17 July 1997.⁷cräläwvirtualibräry

Usana and Lopez filed a Notice of Appeal on 30 June 1997,⁸ manifesting therein that they were appealing to this Court and to the Court of Appeals. Considering the penalties imposed, the decision in Criminal Case No. 95-936 was appealed to this Court, while the Court of Appeals took cognizance of the appeal from Criminal Case No. 95-938. In its Order of 30 June 1997,⁹ the trial court gave due course to the appeal and ordered the transmittal of the record in Criminal Case No. 95-936 to this Court and the record of Criminal Case No. 95-938 to the Court of Appeals.

Accordingly, it is only the appeal from the judgment in Criminal Case No. 95-936 that is now before this Court.

Due to the differing versions of the parties, there is a need to narrate each of the testimonies of the key players in this case.

The prosecution has this version of the events: On the 5th of April 1995 and during a COMELEC gun ban, some law enforcers of the Makati Police, namely, PO3 Eduardo P. Suba, PO3 Bernabe Nonato, SPO4 Juan de los Santos, and Inspector Ernesto Guico,¹⁰ were manning a checkpoint at the corner of Senator Gil Puyat Ave. and the South Luzon Expressway (SLEX).¹¹ They were checking the cars going to Pasay City, stopping those they found suspicious, and imposing merely a running stop on the others. At about past midnight, they stopped a Kia Pride car with Plate No. TBH 493.¹² PO3 Suba saw a long firearm on the lap of the person seated at the passenger seat, who was later identified as Virgilio Usana. They asked the driver, identified as Escao, to open the door. PO3 Suba seized the long firearm, an M-1 US Carbine, from Usana. When Escao, upon order of the police, parked along Sen. Gil Puyat Ave., the other passengers were search for more weapons. Their search yielded a .45 caliber firearm which they seized from Escao.¹³cräläwvirtualibräry

The three passengers were thereafter brought to the police station Block 5 in the Kia Pride driven by PO3 Nonato.¹⁴ Upon reaching the precinct, Nonato turned over the key to the desk officer. Since SPO4 de los Santos was suspicious of the vehicle, he requested Escao to open the trunk.¹⁵ Escao readily agreed and opened the trunk himself using his key.¹⁶ They noticed a blue bag inside it,¹⁷ which they asked Escao to open. The bag contained a parcel wrapped in tape,¹⁸ which, upon examination by National Bureau of Investigation Forensic Chemist Emilia A. Rosaldos, was found positive for hashish weighing 3.3143 kilograms.¹⁹cräläwvirtualibräry

A certification was issued by the Firearms and Explosive Office of the National Police Commission (NAPOLCOM) to the effect that Escao was not a licensed/registered firearms holder of any kind and caliber. Usana, however, according to the same certification is a licensed/registered holder of a pistol Colt .45 caliber with license issued on 14 October 1994 and to expire on April 1996. Usana also has an application for a pistol Uzi Cal. 9mm. Neither of the two guns seized were licensed/registered with the NAPOLCOM.²⁰cräläwvirtualibräry

For his part, Escao (or Jovy) testified that on the 4th of April 1995, between 11:00 and 11:30 in the morning, he was at the lobby of Legend Hotel, at Pioneer St., Mandaluyong City, to meet with his business partners, including Usana and Lopez. He saw his friend and erstwhile co-employee at Philippine Airlines, Ramon Cabrera, who had borrowed his wifes car. Since it was his wifes birthday the following day, he asked Cabrera if he could get back the car. Cabrera readily gave him the keys of the car.²¹cräläwvirtualibräry

He left the hotel at around 11:45 in the evening with Usana and Lopez. Using his wifes car, they cruised southward along Epifanio de los Santos Avenue (EDSA) and turned right at Sen. Gil Puyat Avenue. They stopped before crossing SLEX because the traffic light turned red. From the other side of SLEX, he could see a group of policemen. Upon crossing SLEX, they were flagged down by one of the policemen, so he slowed down and stopped. PO3 Nonato asked him to roll down the window and demanded to see his license. He asked if he had committed any violation, but PO3 Nonato accused him of being drunk, which he denied. The policemen persisted in asking for his license, but he did not budge and instead reiterated that there was no reason for him to surrender his license for he had not committed any violation. A verbal tussle ensued resulting in the drawing of firearms by the policemen which prompted Usana to suggest that they go to the police station because the policemen were carrying guns and they have not done anything wrong.²²cräläwvirtualibräry

He stated further that he was the one who drove to the police station along Dian St. with his companions. He parked the car then they were brought to the office of the Deputy Station Commander, Lieutenant Eco.²³ The policemen asked if they could search his car. He then inquired if he was not entitled to a lawyer and why they needed to conduct a search when they had not even told him what he had violated. Apparently, he thought they were there only for verification purposes. Lt. Eco explained that that was the reason why they were going to search his car, to see if he had done anything illegal. Although the police were insistent in asking for the keys to his car, he continuously refused. Lt. Eco asked his men to usher the trio into the detention cell.²⁴cräläwvirtualibräry

After two hours, he was brought back to Lt. Ecos office. Lt. Eco pointed to a bag, a rifle, a pistol and a package wrapped in masking tape or packing tape on his desk, and said these items constituted evidence of illegal possession of firearms and transporting of drugs. He was surprised that they found those items from his car because his key had been with him all the time. He was handcuffed, brought to his car, and again was surprised to see its trunk open.²⁵cräläwvirtualibräry

On the other hand, Lopez had a different story. He claimed he was the mechanic of Usana and they lived in the same subdivision.²⁶ On 4 April 1995, he was working on Usanas pick-up truck at the latters house when Escao dropped by at around 4:30 in the afternoon looking for Usana who was then working in Forbes Park.²⁷ At around 5:30 p.m., they left Usanas house in Escaos metallic gray Kia Pride. Inside the car, he saw a .45 caliber pistol and two spare magazines tucked in the right side and left side of Escaos waist. He also saw a carbine under the right passenger seat. When he inquired about the guns, Escao replied that such did not pose any problem since they were licensed. Before going to Usana, they went to Pasay City to see a certain Jerry.²⁸ They met Usana at the Sen. Gil Puyat Station of the LRT at around 9:00 p.m. He gave his seat to Usana but was unaware if the latter noticed the rifle beneath the seat.²⁹cräläwvirtualibräry

They went home via Sen. Gil Puyat Avenue but were stopped at a checkpoint after crossing SLEX. The policemen directed their flashlights at them and one opened the front passenger door.³⁰ The latter saw the rifle under Usanas seat. Usana and Escao were ordered to get out of the car. PO3 Nonato immediately saw the gun tucked in Escaos waist and asked if he was a policeman. Escao replied that everything would be explained at the police station. He was also asked to step out. No firearm was, however, found in his possession.³¹cräläwvirtualibräry

When confronted about the guns, Escao tried to intercede for his two companions and said that "... these two dont know anything about it, I just took them for a drive." They subsequently went to police station Block 5. A certain Toto, a policeman, drove the Kia Pride to Block 5.³²cräläwvirtualibräry

Upon reaching the police station, Escao was immediately brought to the office of Lt. Eco while he and Usana were asked to sit on the bench. After a few minutes, PO3 de los Santos came out of the office of Lt. Eco to talk to him. He told him that all he knew about Escao is that he was a wealthy flight attendant with military connections. After returning to Lt. Ecos office, PO3 de los Santos went out of the police station with Lt. Eco and Escao. The three came back with a blue bag which he had never seen before. The bag was opened before the three suspects. Escao reiterated that his two companions had nothing to do with the bag.³³cräläwvirtualibräry

He and Usana stayed overnight in their cell and only saw Escao in the morning of April 5. At around 4:00 p.m., they were transferred to the CID and stayed in the office of a certain Inspector Sipin. Escao admitted he owned the bag/case.³⁴cräläwvirtualibräry

For his part, Usana testified that he was a duly licensed architect who was gainfully employed by Rolando de Asis and Taytay Management Corporation.³⁵ He admitted owning a licensed .45 caliber pistol.³⁶ In March 1995, he hired as mechanic Lopez, who lives in Bernabe Subdivision Phase II where he also lives. Escao on the other hand, was introduced to him by a certain Roberto Samparado, a neighbor of Lopez. Escao, an international flight attendant of Philippine Airlines and a businessman who owns Verge Enterprises, also supplied materials to the Philippine Army and planned to engage in a construction business.³⁷chanroblesvirtuallawlibrary

On 4 April 1995, at around 7:30 p.m., he paged Escao to talk about the materials for the five prototype gunship helicopters they were supposed to supply. They talked on the phone, agreeing to meet between 8:30 and 9:00 p.m. at the Sen. Gil Puyat Ave. Station of the Light Rail Transit,³⁸ and met at around a quarter past nine. Escao was on board a metallic Kia Pride with Lopez on the passenger seat. Lopez vacated the seat for him. They went to Magallanes Village to meet a certain Norman Garcia and talk about the documents³⁹ relating to the helicopter gunship of the Air Force. They arrived there at 11:30 p.m. While they were talking with Garcia, he noticed a gun and magazines tucked in Escaos waist. Upon inquiry, Escao said it was not a problem and only for his protection.⁴⁰ On their way to Roxas Boulevard, they were stopped at a checkpoint along Sen. Gil Puyat Ave. Policemen knocked on the car windows so he and Escao rolled down their windows. A person in civilian clothes suddenly opened the right door, took something from the side of his seat and shouted, "Theres a gun." He was surprised because he did not carry anything when he boarded the car; neither did he see anything inside the car because it was dark and he was not wearing his eyeglasses.⁴¹ The person who took the gun asked if he was a policeman, and he said he was an architect. He was then asked to alight from the car, then frisked. Escao was also asked to alight from a car. They saw a gun tucked in his waist, so they asked if he was a policeman, and Escao answered in the negative. Lopez was then ordered to get out of the car by the person in civilian clothes and was also searched. They rode the Anfra service vehicle of the police. One of the policemen asked Lopez to handcuff him and Escao. The policeman who asked Escao to get out of the car drove the Anfra van to Block 5 where they arrived at 1:30 in the morning of 5 April.⁴²cräläwvirtualibräry

He and Lopez waited outside the office of Lt. Eco while Escao was inside with the arresting officers. Lt. Eco came out of his office and urged Lopez to tell the truth. He heard Lopez say that they were both just with Escao and that they knew nothing about the guns; neither do they own any. SPO4 de los Santos entered the office of Lt. Eco and came out five minutes later with Escao, Lt. Eco, and the other arresting officers, Nonato, Suba and Erwin Eco, the person in civilian clothes. All six went out to the parking area and returned after about five minutes. Lt. Eco was carrying a bag which he placed on top his desk. Lopez and Escao were asked about the contents of the bag. The two replied it was the first time they saw that bag. Lt. Eco opened the bag before them. They all saw something in brown paper. He and Lopez simultaneously exclaimed that they knew nothing about the contents of the bag, and they implored Escao to tell the police that they had nothing to do with it.⁴³cräläwvirtualibräry

The trial court found the prosecutions version more credible than that of any one of the accused, and ruled that the evidence presented by the prosecution was sufficient to convict the accused as charged. It decreed:

WHEREFORE, in view of the foregoing judgment is hereby rendered as follows:

1. In Criminal Case No. 95-936, accused JULIAN ESCAO y DEEN, VIRGILIO USANA y TOME and JERRY LOPEZ y CASABAAN are GUILTY as charged and are sentenced to suffer imprisonment of RECLUSION PERPETUA, and to pay a fine of P500,000.00.

The Branch Clerk of Court is directed to turn over to the Dangerous Drugs Board the 3.314 kilograms of Hashish (marijuana) for its appropriate disposition in accordance with law; and

2. In criminal Cases Nos. 95-937 and 95-938, accused JULIAN ESCAO y DEEN and VIRGILIO USANA y TOME are GUILTY as charged in the two separate informations respectively filed against them and are sentenced to suffer the indeterminate prison term from TEN (10) YEARS of PRISION MAYOR maximum, as minimum to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of RECLUSION TEMPORAL maximum as maximum.⁴⁴cräläwvirtualibräry

The firearms and ammunitions subject matter of these cases which are still with the City Prosecutors Office are forfeited in favor of the Government are directed to be turned over to the Firearms and Explosive Unit, PNP, Camp Crame, Quezon City for its appropriate disposition.

SO ORDERED. ⁴⁵cräläwvirtualibräry

Accused-appellants Usana and Lopez anchor their appeal on the following arguments:

1. The trial court erred in admitting in evidence the hashish seized without search warrant when the police officers already had the opportunity to secure a search warrant before searching the bag found at the baggage compartment at the back of the car;

2. Assuming that the hashish is admissible in evidence, the trial court erred in finding appellants to have conspired with Escao in transporting the hashish when the evidence clearly shows that the hashish was owned and possessed solely by Escao;

3. The trial court erred in convicting appellants of illegal possession of hashish despite the fact that they were neither in actual nor constructive possession of the illegal drug; and

4. The trial court erred in not considering the exculpatory testimony of Julian Escao in favor of appellants.

Before going any further, some words are in order regarding the establishment of checkpoints.

Accused-appellants assail the manner by which the checkpoint in question was conducted. They contend that the checkpoint manned by elements of the Makati Police should have been announced. They also complain of its having been conducted in an arbitrary and discriminatory manner.

We take judicial notice of the existence of the COMELEC resolution⁴⁶ imposing a gun ban during the election period issued pursuant to Section 52(c) in relation to Section 26(q) of the Omnibus Election Code (Batas Pambansa Blg. 881). The national and local elections in 1995 were held on 8 May, the second Monday of the month. The incident, which happened on 5 April 1995, was well within the election period.

This Court has ruled that not all checkpoints are illegal. Those which are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists are allowed.⁴⁷ For, admittedly, routine checkpoints do intrude, to a certain extent, on motorists right to "free passage without interruption," but it cannot be denied that, as a rule, it involves only a brief detention of travelers during which the vehicles occupants are required to answer a brief question or two. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individuals right against unreasonable search. In fact, these routine checks, when conducted in a fixed area, are even less intrusive.⁴⁸cräläwvirtualibräry

The checkpoint herein conducted was in pursuance of the gun ban enforced by the COMELEC. The COMELEC would be hard put to implement the ban if its deputized agents were limited to a visual search of pedestrians. It would also defeat the purpose for which such ban was instituted. Those who intend to bring a gun during said period would know that they only need a car to be able to easily perpetrate their malicious designs.

The facts adduced do not constitute a ground for a violation of the constitutional rights of the accused against illegal search and seizure. PO3 Suba admitted that they were merely stopping cars they deemed suspicious, such as those whose windows are heavily tinted just to see if the passengers thereof were carrying guns. At best they would merely direct their flashlights inside the cars they would stop, without opening the cars doors or subjecting its passengers to a body search. There is nothing discriminatory in this as this is what the situation demands.

We see no need for checkpoints to be announced, as the accused have invoked. Not only would it be impractical, it would also forewarn those who intend to violate the ban. Even so, badges of legitimacy of checkpoints may still be inferred from their fixed location and the regularized manner in which they are operated.⁴⁹cräläwvirtualibräry

Usana and Lopez also question the validity of the search. The trial court, in convicting the three accused for violation of R.A. No. 6425, accepted as aboveboard the search done by the Makati Police of the trunk of the car. Jurisprudence recognizes six generally accepted exceptions to the warrant requirement: (1) search incidental to an arrest; (2) search of moving vehicles; (3) evidence in plain view; (4) customs searches; (5) consented warrantless search;⁵⁰ and (6) stop-and-frisk situations.⁵¹cräläwvirtualibräry

Even though there was ample opportunity to obtain a search warrant, we cannot invalidate the search of the vehicle, for there are indications that the search done on the car of Escao was consented to by him. Both Lopez and Usana testified that Escao was with the police officers when they searched the car.⁵² There was no apparent objection made by Escao as he seemed to have freely accompanied the police officers to the car. PO3 Suba, on the other hand, testified that "Escao readily agreed to open the trunk," upon request of SPO4 de los Santos.⁵³ But according to Escao, he refused the request of the police officers to search his car.⁵⁴ We must give credence to the testimony of PO3 Suba. Not only is it buttressed by the testimony of Usana and Lopez that Escao freely accompanied the police officers to the car, it is also deemed admitted by Escao in failing to appeal the decision. The findings of fact of the trial court are thus deemed final as against him.

Despite the validity of the search, we cannot affirm the conviction of Usana and Lopez for violation of R.A. No. 6425, as amended. The following facts militate against a finding of conviction: (1) the car belonged to Escao; (2) the trunk of the car was not opened soon after it was stopped and after the accused were searched for firearms; (3) the car was driven by a policeman from the place where it was stopped until the police station; (4) the cars trunk was opened, with the permission of Escao, without the presence of Usana and Lopez; and (5) after arrival at the police station and until the opening of the cars trunk, the car was in the possession and control of the police authorities. No fact was adduced to link Usana and Lopez to the hashish found in the trunk of the car. Their having been with Escao in the latters car before the "finding" of the hashish sometime after the lapse of an appreciable time and without their presence left much to be desired to implicate them to the offense of selling, distributing, or transporting the prohibited drug. In fact, there was no showing that Usana and Lopez knew of the presence of hashish in the trunk of the car or that they saw the same before it was seized.

IN VIEW WHEREOF, that portion of the challenged decision of 30 May 1997 of the Regional Trial Court, Makati, Branch 64, insofar as Criminal Case No. 95-936 is concerned with regard to accused-appellants VIRGILIO T. USANA and JERRY C. LOPEZ, holding them guilty of violation of Section 4, Article II of R.A. No 6425, as amended, is hereby REVERSED and SET ASIDE and another is hereby rendered ACQUITTING them therein on ground of reasonable doubt and ORDERING their immediate release from confinement at the New Bilibid Prison, unless their further detention is justified for any lawful ground. The Director of the Bureau of Corrections is hereby directed to report to the Court the release of said accused-appellants within five (5) days from notice of this decision.

SO ORDERED.

Puno, Kapunan, Pardo, and Ynares-Santiago, JJ., concur.

¹ Otherwise known as the Dangerous Drugs Act of 1972.

² Original Record (OR), 2; Rollo, 11.

³ Id., 3; id., 12.

⁴ Id., 4, id., 13.

⁵ OR, Vol. II, 65-68; Rollo, 43-62. Per Judge Delia H. Panganiban.

⁶ Rollo, 109.

⁷ Id., 112.

⁸ OR, Vol. II, 99.

⁹ Id., 101.

¹⁰ Tsn, 6 July 1995, 56.

¹¹ Tsn, 6 July 1995, 55.

¹² Id., 63; OR, 140-142.

¹³ Id., 64-68.

¹⁴ Tsn, 13 July 1995, 79.

¹⁵ Id., 12, 80.

¹⁶ Id., 14-15, 81-82.

¹⁷ Id., 16.

¹⁸ Id., 18.

¹⁹ TSN, 6 July 1995, 17-19; 24-25. See also Exhibit "C."

²⁰ OR, 240; Exhibit "Q."

²¹ Tsn, 27 August 1996, 8-12.

²² Id., 13-24.

²³ Tsn, 27 August 1996, 31-33.

²⁴ Tsn, 27 August 1996, 38-40.

²⁵ Id., 41-43.

²⁶ Tsn, 24 October 1996, 4.

²⁷ Id.

²⁸ Id., 5-7.

²⁹ Tsn, 24 October 1996, 11-12.

³⁰ Id., 13-16.

³¹ Id., 17-20.

³² Id., 20-22.

³³ Id., 22-27.

³⁴ Tsn, 24 October 1996, 27-30.

³⁵ Tsn, 5 November 1996, 4, 9, 11; Exhibit 4.

³⁶ Id., 14-15.

³⁷ Tsn, 24 October 1996, 16-20; Exhibit 6.

³⁸ Id., 22-23.

³⁹ Id., 33; Exhibit 7.

⁴⁰ Tsn, 24 October 1996, 29-31.

⁴¹ Tsn, 24 October 1996, 24-28.

⁴² Tsn, 5 November 1996, 37-45.

⁴³ Id., 46-50.

⁴⁴ Per R.A. No. 8294, amending P.D. 1866, the penalty for violation of the second paragraph of Section 1 therefor has been reduced to prision mayor in its minimum period and a fine of P30,000.

⁴⁵ Rollo, 61-62.

⁴⁶ Section 2 (a), COMELEC Resolution No. 2735.

⁴⁷ Valmonte v. de Villa, 185ra 665 (1990)

⁴⁸ Id., 669.

⁴⁹ U.S. v. Martinez-Fuerte, 428 U.S. 543, 49 L Ed. 2d 1116 [1976], as cited in Valmonte v. de Villa, supra.

⁵⁰ See Mustang Lumber v. CA, 257ra 430, 449-450 [1996]; 1 Joaquin G. Bernas, The Constitution of the Republic of the Philippines: A Commentary, 1987 ed., 104-105.

⁵¹ See People v. Chua Ho San, G.R. No. 128222, 17 June 1999, 9.

⁵² Tsn, 24 October 1996, p. 23; 5 November 1996, 48.

⁵³ Tsn, 13 July 1995, 14.

⁵⁴ Tsn, 27 August 1995, 38-40.