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SEPARATE OPINION

PANGANIBAN, J.:

I agree with the persuasive ponencia of Mr. Justice Hilario G. Davide, Jr., that:

1. the search conducted on petitioner (a) was not incidental to a lawful arrest and (b) did not constitute a valid stop-and-frisk; thus, the grenade found in his person cannot be admitted as evidence against him; and

2. the Court of Appeals had no jurisdiction to entertain the appeal from the trial court's decision.

I wish, however, to correlate the present case with four relevant decisions I authored for the Court: Manalili vs. Court of Appeals,¹ People vs. Encinada,² People vs. Lacerna³ and People vs. Cuizon,⁴ all of which were promulgated without any dissenting view. This correlation may be of benefit to the bench, the bar and, particularly, to law enforcement officers. Let me first present a background on each.

Manalili Involved a

Valid Stop-and-Frisk

In Manalili, anti-narcotics policemen conducted a surveillance in response to information that drug addicts were roaming the area fronting the city cemetery of Kalookan, and chance upon Manalili who was observed to have reddish eyes and to be walking in a wobbly manner. Because his appearance was characteristic of a person "high on drugs," the lawmen approached him, introduced themselves and inquired as to what was in his hands. At first, Manalili resisted but the police prevailed and he showed them his wallet. The anti-narcotics men found inside what they suspected to be crushed marijuana residue. They took Manalili to their station for further investigation. A chromatographic test of the wallet contents positively affirmed the lawmen's suspicions. Manalili was thus charged, tried and convicted of illegal possession of the prohibited substance. He subsequently challenged before us the legality of his search and arrest, and the admission of the marijuana as evidence. He contended that the latter two were products of the illegal search.

Rejecting his appeal, this Court held that the search was akin to a stop-and-frisk. The police had sufficient reason to stop Manalili, who "had red eyes and was wobbling like a drunk x x x [in] a popular hangout of drug addicts," in order to investigate if he was actually "high" on drugs. The situation verily called for a stop-and-frisk.

Lawmen Had Sufficient Opportunity

to Secure Warrant in Encinada

In Encinada, a police officer received late in the afternoon a tip from an informant that the following morning, appellant would be arriving at the Surigao port bringing marijuana. Without securing a search warrant allegedly because courts were already closed for the day, the lawmen proceeded early next morning to the city wharf. About 8:30 a.m., they saw the suspect, carrying two plastic baby chairs, disembark and thereafter board a tricycle. The police followed immediately and ordered the driver to stop. After introducing themselves, the policemen asked Encinada to alight and to hand over his luggage for inspection. found between the baby chairs was a bulky package which was later found to contain marijuana. On these particulars, he was charged, tried and convicted by the trial court for violation of Sec. 4, Art. II of RA 6425, holding that Encinada was caught in flagrante delicto. Hence, the warrantless search following his arrest was valid, and the marijuana seized was admissible in evidence.

Reversing the trial court, this Court stressed the following: Encinada was not committing a crime in the presence of the police; the latter did not have personal knowledge of facts indicating that he just committed an offense; and raw intelligence information was not a sufficient ground for a warantless arrest.⁵ Furthermore, "[t]he prosecution's evidence did not show any suspicious behavior when the appellant disembarked from the ship or while he rode the motorela. No act or fact demonstrating a felonious enterprise could be ascribed to appellant under such bare circumstances."⁶ Having known the identity of their suspect the previous day, the law enforcers could have secured a warrant of arrest even within such limited period (per Administative Circular No. 13 and Circular No. 19, s. 1987). In emphasizing the importance of according respect to every person's constitutional rights against illegal arrests and searches, the Court exhorted:

"Lawmen cannot be allowed to violate every law they are expected to enforce. [The policeman's] receipt of the intelligence information regarding the culprit's identity, the particular crime he allegedly committed and his exact whereabouts underscored the need to secure a warrant for his arrest. But he failed to do so. Such failure or neglect cannot excuse him from violating a constitutional right of the appellant."⁷chanroblesvirtuallawlibrary

"x x x That the search disclosed a prohibited substance in appellant's possession and thus confirmed the police officers' initial information and suspicion, did not cure its patent illegality. An illegal search cannot be undertaken and then an arrest effected on the strength of the evidcnce yielded by the search."⁸chanroblesvirtuallawlibrary

Consent Validated an Otherwise

Illegal Search in Lacerna

In Lacerna meanwhile, a police officer observed that the occupants of a taxicab bowed their heads and slouched when they passed through the checkpoint he was manning, making him suspect that something was amiss. He signaled the driver to stop, then asked permission to search the vehicle. The occupants consented. Found inside a plastic bag were several blocks wrapped in newspaper, which were later discovered to contain marijuana. Lacerna questioned his warrantless arrest and seizure, claiming that they were violative of his constitutional rights.

The Court, despite declaring that the prior attendant circumstances did not justify a warrantless search and seizure, ruled that the search was valid, not because Lacerna was caught in flagrante delicto, but because he freely consented to the search. Although appellant and his companion were stopped by the police on mere suspicion -- without probable cause -- that they were engaged in a felonious enterprise, the Court stressed that their permission for the search was expressly sought and obtained by the law enforcers. This consent validated the search, waiver being a generally recognized exception to the rule against warrantless search.⁹ The marijuana, therefore, was admissible in evidence. "There was no poisonous tree to speak of."

Mere Suspicion of Criminal Activity

Did Not Justify Search of Cuizon

Lastly, in Cuizon, the NBI, after conducting a surveillance on Cuizon for about a month, received in the morning a tip from an informant that Cuizon and his wife were arriving at NAIA that same day, bringing a large quantity of shabu. A team was immediately organized and sent to the airport to intercept the suspect. Shortly after noon, the Cuizon spouses arrived. While at the airport arrival area, Cuizon handed four travelling bags to Pua and Lee who thereafter boarded a taxicab, while the Cuizons took a different vehicle. The NBI team members posted at the NAIA parking area, however, failed to intercept the suspects. The team merely trailed the taxicab which proceeded to the Manila Peninsula Hotel in Makati. After identifying themselves to the suspects in their hotel room, the team asked permission to search their bags in the presence of the hotel's chief security officer. Pua and Lee consented in writing. Found inside three of the four bags similar to those handed to them by Cuizon at the airport were plastic packages of white crystaline substances which, upon later examination, were confirmed to be shabu. Taking with them the two accused (who, however, did not implicate Cuizon), the NBI team proceeded to the Cuizon residence where they found a bag allegedly containing the same subtance. The three were charged and convicted of illegal transport of the regulated drug. On appeal, only Cuizon challenged the validity of his warrantless arrest, search and seizure.

Reiterating the doctrine that "where a person is searched without a warrant, and under circumstances other than those justifying a warrantless arrest x x x, upon a mere suspicion that he has embarked on some criminal activity, and/or for the purpose of discovering if indeed a crime has been committed by him, then the search made of such person as well as his arrest [is] deemed illegal," ¹⁰ this Court declared unlawful the arrest of Cuizon as well as the incidental search and seizure. The warrantless arrest and search were not justified by the rules on "in flagrante delicto" or "hot pursuit" for, at the time of his arrest, Cuizon was inside his home resting with his wife and child. No offense had just been committed or was actually being committed or attempted by him in the presence of the lawmen, nor did the latter have personal knowledge of facts indicating that Cuizon authored an offense that had just in fact been committed. Consequently, any evidence obtained during the illegal search, "even if tending to confirm or actually confirming the initial suspicion, is absolutely inadmissible for any purpose and in any proceeding, the same being 'the fruit of the poisonous tree."¹¹cräläwvirtualibräry

The same would have been true as regards Pua and Lee. But Pua effectively waived his right against the warantless search when he agreed in writing for the NBI team to search his luggage. Besides, he failed to challenge the validity of his arrest and search and the admission of the evidence obtained thereby. However, the case against Lee, who could not speak English or Filipino, was remanded for a retrial, because he was effectively denied his right to counsel; for although he was provided with one, he could not understand and communicate with him concerning his defense.

After reviewing previous decisions on valid warrantless arrests and searches, the Court underscored in sum that there was need for facts providing probable cause, such as the "distinct odor of marijuana, reports about drug transporting or positive identification by informers, suspicious behavior, attempt to flee, [or] failure to produce identification papers" to justify warantless arrests and searches. Likewise, urgency must attend such arrests and searches, as where motor vehicles are used and there is great probaility that the suspect would get away before a warrant can be procured. Most important is that the law enforcers must act immediately on the information received, suspicions raised or probable cause established, and should effect the arrests and searches without any delay.¹²chanroblesvirtuallawlibrary

Instant Case Correlated

with Four cited

Now to the correlation with the case at bar.

(1) As in Manalili, lawmen were on surveillance in response to information that a criminal activity could be in the offing at a specified place. The stark difference, however, is that in Manalili, the reported activity involved drug use and the lawmen belonged to the anti-narcotics group, while in the instant case, the police on patrol were ordinary law enforcers on the lookout for possible bombers. In the former, the law enforcers concerned may be presumed to possess special knowledge and skill to detect the physical features exhibited by a current drug user. Thus, when these specially trained enforcers saw Manalili with reddish eyes and walking in a wobbly manner characteristic of a person "high" on drugs per their experience, and in a known hangout of drug users, there was sufficient genuine reason to stop and frisk the suspect. It is well to emphasize that under different circumstances, such as where the policemen are not specially trained, and in common places where people ordinarily converge, the same features displayed by a person will not normally justify a warrantless arrest or search on him.

The case before us presents such a situation. The policemen merely observed that Malacat's eyes were moving very fast. They did not notice any bulges or packets about the bodies of these men indicating that they might be hiding explosive paraphernalia. From their outward look, nothing suggested that they were at the time armed and dangerous. Hence, there was no justification for a stop-and-frisk.

(2) In relation to the cases of Encinada and Cuizon, at the time of the arrests of the suspects, none of the actions of Accused Encinada and Cuizon were beyond normal as to suggest that they were then engaged in felonious activities. The simple handing over of the baggage by Cuizon to Pua and Lee was far from being indicative of any illegal activity. Such act by itself does not, by any stretch of imagination, even appear to be suspicious. Granting that indeed and offense was committed by Cuizon at the airport, his subsequent arrest cannot even be justified under the rule on "hot pursuit." He did not attempt to flee, but was actually able to leave the premises and reach his house unhampered by the police. There was considerable interruption between the supposed commission of the crime and his subsequent arrest in his house where he was already resting.

Moreover, Encinada and Cuizon had been previously identified and subjected to surveillance. Police informants themselves, presumably reliable, tipped off their alleged criminal activity. Specifically with respect to Encinada, there was sufficient time to priorly obtain a warrant for his arrest. It must be stressed that raw unverified intelligence information alone is not sufficient to justify a warrantless arrest or search. That is why it is important to bring one's evidence before a judge who shall independently determine if probable cause exists for the issuance of the warrant. It is not for the police to make such determination.

As regards Cuizon, it was, worse, the ineptness of the NBI team dispatched to intercept him which foiled his arrest and search. In the present case, if it were true that the arresting officer saw Malacat two days earlier attempting to detonate a grenade in the same vicinity, again it was the policemen's ineptitude that frustrated his valid arrest there and then and, further, their inability to effectively investigate and identify the culprit -- so as to have obtained a lawful arrest warrant -- that hindered his valid seizure thereafter.

(3) In Lacerna, true, the occupants of the taxicab bowed their heads and slouched when they passed through the police checkpoint. Although such acts could raise suspicions, they did not provide sufficient reason for the police to stop and investigate them for possible criminal operation; much less, to conduct an extensive search of their belongings. A checkpoint search is limited to a roving view within the vehicle. A further search may be validly effected only if something probably illegal is within his "plain view." In Lacerna, if not for the passengers' free and express consent, the search would have been undoubtedly declared illegal. Similarly, the fast-moving eyes of Malacat, although connoting unusual behavior, was not indicative that he was armed and dangerous as to justify a search on his person.

Mengote Supports

Present Ponencia

Bolstering the invalidity of the arrest and search of Malacat is People vs. Mengote,¹³ Another classic on the right against unreasonable searches and seizures. Upon receiving a telephone call shortly before noon from an informer that there were suspicious-looking persons at a certain street corner in Tondo, Manila, the Western Police District dispatched a surveillance team to said place. There they saw two men "looking from side to side" with one "holding his abdomen." The police approached them and identified themselves, whereupon the two tried to flee but failed as other lawmen surrounded them. The suspects were searched, and recovered from Mengote was a fully loaded pistol; from his companion, a fan knife.

The Court ruled that the situation was not one calling for a lawful warrantless search and arrest. As the Court, through Mr. Justice Isagani A. Cruz, succintly put it: "What offense could possibly have been suggested by a person 'looking from side to side' and 'holding his abdomen' and in a place not exactly forsaken?"

"x x x [T]here could have been a number of reasons, all of them innocent, why his eyes were darting from side to side and he was holding his abdomen. If they excited suspicion in the minds of the arresting officers, as the prosecution suggests, it has nevertheless not been shown what their suspicion was all about. In fact, the policemen themselves testified that they were dispatched to that place only because of the telephone call from the informer that there were 'suspicious-looking' persons in that vicinity who were about to commit a robbery at North Bay Boulevard. The caller did not explain why he thought the men looked suspicious nor did he elaborate on the impending crime."¹⁴cräläwvirtualibräry

In closing, the Court lamented and thus warned:

"It would be a sad day, indeed, if any person could be summarily arrested and searched just because he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a peace officer could clamp handcuffs on any person with a shifty look on suspicion that he may have committed a criminal act or is actually committing or attempting it. This simply cannot be done in a free society. This is not a police state where order is exalted over liberty or, worse, personal malice on the part of the arresting officer may be justified in the name of security."¹⁵chanroblesvirtuallawlibrary

Under our rule in Mengote, petitioner's dubious act of moving his eyes swiftly from side to side can in no way justify a stop-and-frisk. To convict a person on the basis only of his queer behavior and to sentence him to practically a lifetime in prison would simply be unfathomable. Nothing can be more wrong, unjust and inhuman.

WHEREFORE, I vote to SET ASIDE the assailed decision and to ACQUIT Petitioner Sammy Malacat y Mandar.