EN BANC
[G.R. No. 125299. January 22, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
FLORENCIO DORIA y BOLADO, and VIOLETA GADDAO y CATAMA @ "NENETH," accused-appellants.
D E C I S I O N
PUNO, J.:
On December 7, 1995, accused-appellants
Florencio Doria y Bolado and Violeta Gaddao y Catama @ "Neneth" were
charged with violation of Section 4, in relation to Section 21 of the Dangerous
Drugs Act of 1972.[1] The information reads:
"That on or about the 5th day of December, 1995 in the City of Mandaluyong, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping and aiding one another and without having been authorized by law, did, then and there willfully, unlawfully and feloniously sell, administer, deliver and give away to another eleven (11) plastic bags of suspected marijuana fruiting tops weighing 7,641.08 grams in violation of the above-cited law.
CONTRARY TO LAW."[2]
The prosecution contends the
offense was committed as follows: In November 1995, members of the North
Metropolitan District, Philippine National Police (PNP) Narcotics Command
(Narcom), received information from two (2)
civilian informants (CI) that one "Jun" was engaged in illegal
drug activities in Mandaluyong City. The Narcom agents decided to entrap and
arrest "Jun" in a buy-bust operation. As arranged by one of the CI's,
a meeting between the Narcom agents and "Jun" was scheduled on
December 5, 1995 at E. Jacinto Street in Mandaluyong City.
On December 5, 1995, at 6:00 in
the morning, the CI went to the PNP Headquarters at EDSA, Kamuning, Quezon City
to prepare for the buy-bust operation. The Narcom agents formed Team Alpha
composed of P/Insp. Nolasco Cortes as team leader and PO3 Celso Manlangit, SPO1
Edmund Badua and four (4) other policemen as members. P/Insp. Cortes designated
PO3 Manlangit as the poseur-buyer and SPO1 Badua as his back-up, and the rest
of the team as perimeter security. Superintendent Pedro Alcantara, Chief of the
North Metropolitan District PNP Narcom, gave the team P2,000.00 to cover
operational expenses. From this sum, PO3 Manlangit set aside P1,600.00--
a one thousand peso bill and six (6) one hundred peso bills[3]-- as money for the buy-bust
operation. The market price of one kilo of marijuana was then P1,600.00.
PO3 Manlangit marked the bills with his initials and listed their serial
numbers in the police blotter.[4] The team rode in two cars
and headed for the target area.
At 7:20 of the same morning,
"Jun" appeared and the CI introduced PO3 Manlangit as interested in
buying one (1) kilo of marijuana. PO3 Manlangit handed "Jun" the
marked bills worth P1,600.00. "Jun" instructed PO3 Manlangit
to wait for him at the corner of Shaw Boulevard and Jacinto Street while he got
the marijuana from his associate.[5] An hour later,
"Jun" appeared at the agreed place where PO3 Manlangit, the CI and
the rest of the team were waiting. "Jun" took out from his bag an
object wrapped in plastic and gave it to PO3 Manlangit. PO3 Manlangit forthwith
arrested "Jun" as SPO1 Badua rushed to help in the arrest. They
frisked "Jun" but did not find the marked bills on him. Upon inquiry,
"Jun" revealed that he left the money at the house of his associate
named "Neneth."[6] "Jun" led the
police team to "Neneth's" house nearby at Daang Bakal.
The team found the door of
"Neneth's" house open and a woman inside. "Jun" identified
the woman as his associate.[7] SPO1 Badua asked "Neneth" about the P1,600.00
as PO3 Manlangit looked over "Neneth's" house. Standing by the door,
PO3 Manlangit noticed a carton box under the dining table. He saw that one of
the box's flaps was open and inside the box was something wrapped in plastic.
The plastic wrapper and its contents appeared similar to the marijuana earlier "sold" to him by
"Jun." His suspicion aroused, PO3 Manlangit entered
"Neneth's" house and took hold of the box. He peeked inside the box
and found that it contained ten (10) bricks of what appeared to be dried marijuana
leaves.
Simultaneous with the box's
discovery, SPO1 Badua recovered the marked bills from "Neneth."[8] The policemen arrested "Neneth." They took
"Neneth" and "Jun," together with the box, its contents and
the marked bills and turned them over to the investigator at headquarters. It
was only then that the police learned that "Jun" is Florencio Doria y
Bolado while "Neneth" is Violeta Gaddao y Catama. The one (1) brick
of dried marijuana leaves recovered from "Jun" plus the ten (10)
bricks recovered from "Neneth's" house were examined at the PNP Crime
Laboratory.[9] The bricks, eleven (11) in all, were found to be dried marijuana
fruiting tops of various weights totalling 7,641.08 grams.[10]
The prosecution story was denied
by accused-appellants Florencio Doria and Violeta Gaddao. Florencio Doria, a 33-year old carpenter,
testified that on December 5, 1995, at 7:00 in the morning, he was at the gate
of his house reading a tabloid newspaper.
Two men appeared and asked him if he knew a certain "Totoy." There were many "Totoys" in their
area and as the men questioning him were strangers, accused-appellant denied
knowing any "Totoy." The men
took accused-appellant inside his house and accused him of being a pusher in
their community. When accused-appellant
denied the charge, the men led him to their car outside and ordered him to
point out the house of "Totoy."
For five (5) minutes, accused-appellant stayed in the car. Thereafter, he gave in and took them to
"Totoy's" house.
Doria knocked on the door of
"Totoy's" house but no one answered.
One of the men, later identified as PO3 Manlangit, pushed open the door
and he and his companions entered and looked around the house for about three
minutes. Accused-appellant Doria was
left standing at the door. The policemen came out of the house and they saw
Violeta Gaddao carrying water from the well. He asked Violeta where
"Totoy" was but she replied he was not there. Curious onlookers and kibitzers were, by
that time, surrounding them. When
Violeta entered her house, three men were already inside. Accused-appellant
Doria, then still at the door, overheard one of the men say that they found a
carton box. Turning towards them, Doria
saw a box on top of the table. The box was open and had something inside. PO3
Manlangit ordered him and Violeta to go outside the house and board the car.
They were brought to police headquarters where they were investigated.
Accused-appellant Doria further
declared that his co-accused, Violeta Gaddao, is the wife of his acquaintance,
Totoy Gaddao. He said that he and Totoy
Gaddao sometimes drank together at the neighborhood store. This closeness, however, did not extend to
Violeta, Totoy's wife.[11]
Accused-appellant Violeta Gaddao,
a 35-year old rice vendor, claimed that on December 5, 1995, she was at her
house at Daang Bakal, Mandaluyong City where she lived with her husband and
five (5) children, namely, Arvy, aged 10, Arjay, aged 8, the twins Raymond and
Raynan, aged 5, and Jason, aged 3. That
day, accused-appellant woke up at 5:30 in the morning and bought pan de sal for
her children's breakfast. Her husband,
Totoy, a housepainter, had left for Pangasinan five days earlier. She woke her children and bathed them. Her eldest son, Arvy, left for school at
6:45 A.M. Ten minutes later, she
carried her youngest son, Jayson, and accompanied Arjay to school. She left the twins at home leaving the door
open. After seeing Arjay off, she and
Jayson remained standing in front of the school soaking in the sun for about
thirty minutes. Then they headed for
home. Along the way, they passed the
artesian well to fetch water. She was
pumping water when a man clad in short pants and denim jacket suddenly appeared
and grabbed her left wrist. The man
pulled her and took her to her house. She found out later that the man was PO3
Manlangit.
Inside her house were her
co-accused Doria and three (3) other persons.
They asked her about a box on top of the table. This was the first time she saw the box. The
box was closed and tied with a piece of green straw. The men opened the box and showed her its contents. She said she did not know anything about the
box and its contents.
Accused-appellant Violeta Gaddao
confirmed that her co-accused Florencio Doria was a friend of her husband, and
that her husband never returned to their house after he left for
Pangasinan. She denied the charge
against her and Doria and the allegation that marked bills were found in her
person.[12]
After trial, the Regional Trial
Court, Branch 156, Pasig City convicted the accused-appellants. The trial court
found the existence of an "organized/syndicated crime group" and
sentenced both accused-appellants to death and pay a fine of P500,000.00
each. The dispositive portion of the decision reads as follows:
"WHEREFORE, the guilt of accused, FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA GADDAO y CATAMA @ "Neneth" having been established beyond reasonable doubt, they are both CONVICTED of the present charge against them.
According to the amendatory provisions of Sec. 13 of Republic Act No. 7659 which cover violations of Sec. 4 of Republic Act No. 6425 and which was exhaustively discussed in People v. Simon, 234 SCRA 555, the penalty imposable in this case is reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos. Taking into consideration, however, the provisions of Sec. 23, also of Republic Act No. 7659 which explicitly state that:
'The maximum penalty shall be imposed if the offense was committed by any person who belongs to an organized/syndicated crime group.
An organized/syndicated crime group means a group of two or more persons collaborating, confederating or mutually helping one another for purposes of gain in the commission of any crime.'
the Court is hereby constrained to sentence
(hereby sentences) said FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA
GADDAO y CATAMA @ "Neneth" to DEATH and to pay a fine of Five Hundred
Thousand Pesos (P500,000.00) each without subsidiary imprisonment in
case of insolvency and to pay the costs.
The confiscated marijuana bricks (7,641.08 grams) shall be turned over to the Dangerous Drugs Board, NBI for destruction in accordance with law.
Let a Commitment Order be issued for the transfer of accused DORIA from the Mandaluyong City Jail to the New Bilibid Prisons, Muntinlupa City and also for accused GADDAO for her transfer to the Correctional Institute for Women, Mandaluyong City.
Let the entire records of this case be forwarded immediately to the Supreme Court for mandatory review.
SO ORDERED."[13]
Before this Court,
accused-appellant Doria assigns two errors, thus:
"I
THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT TO THE TESTIMONY OF THE WITNESSES FOR THE PROSECUTION WHEN THEIR TESTIMONIES WERE SHOT WITH DISCREPANCIES, INCONSISTENCIES AND THAT THE CORPUS DELICTI OF THE MARIJUANA ALLEGEDLY TAKEN FROM APPELLANT WAS NOT POSITIVELY IDENTIFIED BY THE POSEUR-BUYER.
II
THE COURT A QUO GRAVELY ERRED IN ADMITTING
AS EVIDENCE THE MARIJUANA FRUITINGS FOUND INSIDE THE CARTON BOX AS THESE WERE
OBTAINED THROUGH A WARRANTLESS SEARCH AND DOES NOT COME WITHIN THE PLAIN VIEW
DOCTRINE."[14]
Accused-appellant Violeta Gaddao
contends:
"I
THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY DESPITE THE INCREDIBILITY OF THE POLICE VERSION OF THE MANNER THE ALLEGED BUY-BUST AS CONDUCTED.
II
THE PNP OFFICERS' VERSIONS AS TO WHERE THE BUY-BUST MONEY CAME FROM ARE INCONSISTENT WITH ONE ANOTHER AND ALSO REEKS WITH INCREDIBILITY.
III
THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY AND SENTENCING HER TO DEATH DESPITE THE MANIFESTLY IRRECONCILABLE INCONSISTENCIES IN THE VERSIONS OF THE POLICE AS TO HOW AND BY WHOM THE ALLEGED BUY-BUST MONEY WAS RECOVERED FROM HER, WHICH IN CONSEQUENCE RESULTS IN THE EVIDENCE, OF RETRIEVAL FROM HER OF THE SAME, NEBULOUS, AT BEST, NIL, AT WORST.
IV
THE LOWER COURT ERRED IN UPHOLDING THE
VALIDITY OF THE WARRANTLESS SEARCH LEADING TO THE SEIZURE OF THE MARIJUANA
ALLEGEDLY FOUND INSIDE THE HOUSE OF ACCUSED-APPELLANT."[15]
The assigned errors involve two
principal issues: (1) the validity of the buy-bust operation in the
apprehension of accused-appellant Doria; and (2) the validity of the
warrantless arrest of accused-appellant Gaddao, the search of her person and
house, and the admissibility of the pieces of evidence obtained therefrom.
Accused-appellants were caught by
the police in a buy-bust operation. A buy-bust operation is a form of
entrapment employed by peace officers as an effective way of apprehending a
criminal in the act of the commission of an offense.[16] Entrapment has received judicial sanction when
undertaken with due regard to constitutional and legal safeguards.[17]
Entrapment was unknown in common
law. It is a judicially created twentieth-century American doctrine that
evolved from the increasing use of informers and undercover agents in the
detection of crimes, particularly liquor and narcotics offenses.[18] Entrapment sprouted from
the doctrine of estoppel and the public interest in the formulation and
application of decent standards in the enforcement of criminal law.[19] It also took off from a spontaneous moral revulsion
against using the powers of government to beguile innocent but ductile persons
into lapses that they might otherwise resist.[20]
In the American jurisdiction, the
term "entrapment" has a generally negative meaning because it is
understood as the inducement of one to commit a crime not contemplated by him,
for the mere purpose of instituting a criminal prosecution against him.[21] The classic definition of entrapment is that articulated
by Justice Roberts in Sorrells v. United States,[22] the first Supreme Court decision to acknowledge the
concept: "Entrapment is the conception and planning of an offense by an
officer, and his procurement of its commission by one who would not have
perpetrated it except for the trickery, persuasion or fraud of the officer."[23] It consists of two (2)
elements: (a) acts of persuasion, trickery, or fraud carried out by law
enforcement officers or the agents to induce a defendant to commit a crime; and
(b) the origin of the criminal design in the minds of the government officials
rather than that of the innocent defendant, such that the crime is the product
of the creative activity of the law enforcement officer.[24]
It is recognized that in every
arrest, there is a certain amount of entrapment used to outwit the persons violating or about to violate the law. Not
every deception is forbidden. The type of entrapment the law forbids is the
inducing of another to violate the law, the "seduction" of an
otherwise innocent person into a criminal career.[25] Where the criminal intent originates in the mind of
the entrapping person and the accused is lured into the commission of the
offense charged in order to prosecute him, there is entrapment and no
conviction may be had.[26] Where, however, the criminal intent originates in
the mind of the accused and the criminal offense is completed, the fact that a
person acting as a decoy for the state, or public officials furnished the
accused an opportunity for commission of the offense, or that the accused is
aided in the commission of the crime in order to secure the evidence necessary
to prosecute him, there is no entrapment and the accused must be convicted.[27] The law tolerates the use
of decoys and other artifices to catch a criminal.
Entrapment is recognized as a
valid defense[28] that can be raised by an accused and partakes of the
nature of a confession and avoidance.[29] It is a positive defense. Initially, an accused has
the burden of providing sufficient evidence that the government induced him to
commit the offense. Once established, the burden shifts to the government to
show otherwise.[30] When entrapment is raised as a defense, American
federal courts and a majority of state courts use the "subjective" or
"origin of intent" test laid down in Sorrells v. United States[31] to determine whether entrapment actually occurred.
The focus of the inquiry is on the accused's predisposition to commit the
offense charged, his state of mind and inclination before his initial exposure
to government agents.[32] All relevant facts such as the accused's mental and
character traits, his past offenses, activities, his eagerness in committing
the crime, his reputation, etc., are considered to assess his state of mind
before the crime.[33] The predisposition test emphasizes the accused's
propensity to commit the offense rather than the officer's misconduct[34] and reflects an attempt to draw a line between a
"trap for the unwary innocent and the trap for the unwary criminal."[35] If the accused was found to have been ready and
willing to commit the offense at any favorable opportunity, the entrapment
defense will fail even if a police agent used an unduly persuasive inducement.[36] Some states, however, have adopted the
"objective" test.[37] This test was first authoritatively laid down in the
case of Grossman v. State[38] rendered by the Supreme Court of Alaska. Several other states have subsequently
adopted the test by judicial pronouncement or legislation. Here, the court considers the nature of the police
activity involved and the propriety of police conduct.[39] The inquiry is focused on the inducements used by
government agents, on police conduct, not on the accused and his predisposition
to commit the crime. For the goal of
the defense is to deter unlawful police conduct.[40] The test of entrapment is
whether the conduct of the law enforcement agent was likely to induce a
normally law-abiding person, other than one who is ready and willing, to commit
the offense;[41] for purposes of this test, it is presumed that a
law-abiding person would normally resist the temptation to commit a crime that
is presented by the simple opportunity to act unlawfully.[42] Official conduct that merely offers such an
opportunity is permissible, but overbearing conduct, such as badgering,
cajoling or importuning,[43] or appeals to sentiments such as pity, sympathy,
friendship or pleas of desperate illness, are not.[44] Proponents of this test believe that courts must
refuse to convict an entrapped accused not because his conduct falls outside
the legal norm but rather because, even if his guilt has been established, the
methods employed on behalf of the government to bring about the crime
"cannot be countenanced." To
some extent, this reflects the notion that the courts should not become tainted
by condoning law enforcement improprieties.[45] Hence, the transactions leading up to the offense,
the interaction between the accused and law enforcement officer and the
accused's response to the officer's inducements, the gravity of the crime, and
the difficulty of detecting instances of its commission are considered in
judging what the effect of the officer's conduct would be on a normal person.[46]
Both the "subjective"
and "objective" approaches have been criticized and objected to. It is claimed that the
"subjective" test creates an "anything goes" rule, i.e., if
the court determines that an accused was predisposed to commit the crime
charged, no level of police deceit, badgering or other unsavory practices will
be deemed impermissible.[47] Delving into the accused's character and
predisposition obscures the more important task of judging police behavior and
prejudices the accused more generally.
It ignores the possibility that no matter what his past crimes and
general disposition were, the accused might not have committed the particular
crime unless confronted with inordinate inducements.[48] On the other extreme, the purely
"objective" test eliminates entirely the need for considering a
particular accused's predisposition.
His predisposition, at least if known by the police, may have an
important bearing upon the question of whether the conduct of the police and
their agents was proper.[49] The undisputed fact that
the accused was a dangerous and chronic offender or that he was a shrewd and
active member of a criminal syndicate at the time of his arrest is relegated to
irrelevancy.[50]
Objections to the two tests gave
birth to hybrid approaches to entrapment.
Some states in the United States now combine both the
"subjective" and "objective" tests.[51] In Cruz v. State,[52] the Florida Supreme Court declared that the
permissibility of police conduct must first be determined. If this objective
test is satisfied, then the analysis turns to whether the accused was
predisposed to commit the crime.[53] In Baca v. State,[54] the New Mexico Supreme Court modified the state's
entrapment analysis by holding that "a criminal defendant may successfully
assert a defense of entrapment, either by showing lack of predisposition to
commit the crime for which he is charged, or, that the police exceeded the
standards of proper investigation.[55] The hybrid approaches combine and apply the
"objective" and "subjective" tests alternatively or
concurrently.
As early as 1910, this Court has examined
the conduct of law enforcers while apprehending the accused caught in flagrante
delicto. In United States v.
Phelps,[56] we acquitted the accused from the offense of smoking
opium after finding that the government employee, a BIR personnel, actually
induced him to commit the crime in order to prosecute him. Smith, the BIR agent, testified that Phelps'
apprehension came after he overheard Phelps in a saloon say that he liked
smoking opium on some occasions.
Smith's testimony was disregarded.
We accorded significance to the fact that it was Smith who went to the
accused three times to convince him to look for an opium den where both of them
could smoke this drug.[57] The conduct of the BIR agent was condemned as
"most reprehensible."[58] In People v. Abella,[59] we acquitted the accused of the crime of selling
explosives after examining the testimony of the apprehending police officer who
pretended to be a merchant. The police
officer offered "a tempting price, xxx a very high one" causing the
accused to sell the explosives. We
found that there was inducement, "direct, persistent and effective"
by the police officer and that outside of his testimony, there was no evidence
sufficient to convict the accused.[60] In People v. Lua Chu and Uy Se Tieng,[61] we convicted the accused after finding that there
was no inducement on the part of the law enforcement officer. We stated that
the Customs secret serviceman smoothed the way for the introduction of opium
from Hongkong to Cebu after the accused had already planned its importation and
ordered said drug. We ruled that the
apprehending officer did not induce the accused to import opium but merely
entrapped him by pretending to have an understanding with the Collector of
Customs of Cebu to better assure the seizure of the prohibited drug and the
arrest of the surreptitious importers.[62]
It was also in the same case of People
v. Lua Chu and Uy Se Tieng[63] we first laid down the distinction between
entrapment vis-a-vis instigation or inducement. Quoting 16 Corpus Juris,[64] we held:
"ENTRAPMENT AND INSTIGATION. -- While it has been said that
the practice of entrapping persons into crime for the purpose of instituting
criminal prosecutions is to be deplored, and while instigation, as
distinguished from mere entrapment, has often been condemned and has sometimes
been held to prevent the act from being criminal or punishable, the general
rule is that it is no defense to the perpetrator of a crime that facilities for
its commission were purposely placed in his way, or that the criminal act was
done at the 'decoy solicitation' of persons seeking to expose the criminal, or
that detectives feigning complicity in the act were present and apparently
assisting in its commission. Especially is this true in that class of cases
where the offense is one of a kind habitually committed, and the solicitation
merely furnishes evidence of a course of conduct. Mere deception by the
detective will not shield defendant, if the offense was committed by him, free
from the influence or instigation of the detective. The fact that an agent of an owner acts as a supposed confederate
of a thief is no defense to the latter in a prosecution for larceny, provided
the original design was formed independently of such agent; and where a person
approached by the thief as his confederate notifies the owner or the public
authorities, and, being authorised by them to do so, assists the thief in
carrying out the plan, the larceny is nevertheless committed. It is generally held that it is no defense
to a prosecution for an illegal sale of liquor that the purchase was made by a
'spotter,' detective, or hired informer; but there are cases holding the
contrary."[65]
The
distinction above-quoted was reiterated in two (2) decisions of the Court of
Appeals. In People v. Galicia,[66] the appellate court declared that "there is a
wide difference between entrapment and instigation." The instigator
practically induces the would-be accused into the commission of the offense and
himself becomes a co-principal. In
entrapment, ways and means are resorted to by the peace officer for the purpose
of trapping and capturing the lawbreaker in the execution of his criminal plan.[67] In People v. Tan Tiong,[68] the Court of Appeals further declared that
"entrapment is no bar to the prosecution and conviction of the
lawbreaker."[69]
The pronouncement of the Court of
Appeals in People v. Galicia was affirmed by this Court in People v.
Tiu Ua.[70] Entrapment, we further held, is not contrary to
public policy. It is instigation that
is deemed contrary to public policy and illegal.[71]
It can thus be seen that the
concept of entrapment in the American jurisdiction is similar to instigation or
inducement in Philippine jurisprudence.
Entrapment in the Philippines is not a defense available to the accused. It is instigation that is a defense and is
considered an absolutory cause.[72] To determine whether there is entrapment or
instigation, our courts have mainly examined the conduct of the apprehending
officers, not the predisposition of the accused to commit the crime. The "objective" test first applied
in United States v. Phelps has been followed in a series of similar
cases.[73] Nevertheless, adopting the "objective"
approach has not precluded us from likewise applying the "subjective"
test. In People v. Boholst,[74] we applied both tests by examining the conduct of
the police officers in a buy-bust operation and admitting evidence of the accused's membership with the notorious
and dreaded Sigue-Sigue Sputnik Gang.
We also considered accused's previous convictions of other crimes[75] and held that his opprobrious past and membership
with the dreaded gang strengthened the state's evidence against him. Conversely, the evidence that the accused
did not sell or smoke marijuana and did not have any criminal record was
likewise admitted in People v. Yutuc[76] thereby sustaining his defense that led to his
acquittal.
The distinction between entrapment
and instigation has proven to be very material in anti-narcotics
operations. In recent years, it has
become common practice for law enforcement officers and agents to engage in
buy-bust operations and other entrapment procedures in apprehending drug
offenders. Anti-narcotics laws, like
anti-gambling laws are regulatory statutes.[77] They are rules of convenience designed to secure a
more orderly regulation of the affairs of society, and their violation gives
rise to crimes mala prohibita.[78] They are not the traditional type of criminal law
such as the law of murder, rape, theft, arson, etc. that deal with crimes mala
in se or those inherently wrongful and immoral.[79] Laws defining crimes mala prohibita condemn
behavior directed, not against particular individuals, but against public
order.[80] Violation is deemed a wrong against society as a whole
and is generally unattended with any particular harm to a definite person.[81] These offenses are carried on in secret and the
violators resort to many devices and subterfuges to avoid detection. It is rare for any member of the public, no
matter how furiously he condemns acts mala prohibita, to be willing to
assist in the enforcement of the law.
It is necessary, therefore, that government in detecting and punishing
violations of these laws, rely, not upon the voluntary action of aggrieved
individuals, but upon the diligence of its own officials. This means that the
police must be present at the time the offenses are committed either in an
undercover capacity or through informants, spies or stool pigeons.[82]
Though considered essential by the
police in enforcing vice legislation, the confidential informant system breeds
abominable abuse. Frequently, a person
who accepts payment from the police in the apprehension of drug peddlers and
gamblers also accept payment from these persons who deceive the police. The informant himself may be a drug addict,
pickpocket, pimp, or other petty criminal.
For whatever noble purpose it serves, the spectacle that government is
secretly mated with the underworld and uses underworld characters to help
maintain law and order is not an inspiring one.[83] Equally odious is the bitter reality of dealing with
unscrupulous, corrupt and exploitative law enforcers. Like the informant, unscrupulous law enforcers' motivations are
legion-- harassment, extortion, vengeance, blackmail, or a desire to report an
accomplishment to their superiors. This
Court has taken judicial notice of this ugly reality in a number of cases[84] where we observed that it is a common modus
operandi of corrupt law enforcers to prey on weak and hapless persons, particularly
unsuspecting provincial hicks.[85] The use of shady underworld characters as
informants, the relative ease with which illegal drugs may be planted in the
hands or property of trusting and ignorant persons, and the imposed secrecy
that inevitably shrouds all drug deals have compelled this Court to be
extra-vigilant in deciding drug cases.[86] Criminal activity is such that stealth and strategy,
although necessary weapons in the arsenal of the police officer, become as
objectionable police methods as the coerced confession and the unlawful
search. As well put by the Supreme
Court of California in People v. Barraza,[87]
"[E]ntrapment is a facet of a broader problem. Along with illegal search and seizures,
wiretapping, false arrest, illegal detention and the third degree, it is a type
of lawless enforcement. They all spring from common motivations. Each is a substitute for skillful and
scientific investigation. Each is condoned by the sinister sophism that the
end, when dealing with known criminals of the 'criminal classes,' justifies the
employment of illegal means."[88]
It is thus
imperative that the presumption, juris tantum, of regularity in the
performance of official duty by law enforcement agents raised by the Solicitor
General be applied with studied restraint.
This presumption should not by itself prevail over the presumption of
innocence and the constitutionally-protected rights of the individual.[89] It is the duty of courts to preserve the purity of
their own temple from the prostitution of the criminal law through lawless
enforcement.[90] Courts should not allow themselves to be used as an
instrument of abuse and injustice lest an innocent person be made to suffer the
unusually severe penalties for drug offenses.[91]
We therefore stress that the
"objective" test in buy-bust operations demands that the details of
the purported transaction must be clearly and adequately shown. This must start
from the initial contact between the poseur-buyer and the pusher, the offer to
purchase, the promise or payment of the consideration until the consummation of
the sale by the delivery of the illegal drug subject of the sale.[92] The manner by which the initial contact was made,
whether or not through an informant, the offer to purchase the drug, the
payment of the "buy-bust" money, and the delivery of the illegal
drug, whether to the informant alone or the police officer, must be the subject
of strict scrutiny by courts to insure that law-abiding citizens are not
unlawfully induced to commit an offense. Criminals must be caught but not at
all cost. At the same time, however, examining the conduct of the police should
not disable courts into ignoring the accused's predisposition to commit the
crime. If there is overwhelming evidence of habitual delinquency, recidivism or
plain criminal proclivity, then this must also be considered. Courts should
look at all factors to determine the predisposition of an accused to commit an
offense in so far as they are relevant to determine the validity of the defense
of inducement.
In the case at bar, the evidence
shows that it was the confidential informant who initially contacted
accused-appellant Doria. At the pre-arranged meeting, the informant was
accompanied by PO3 Manlangit who posed as the buyer of marijuana. PO3 Manlangit
handed the marked money to accused-appellant Doria as advance payment for one
(1) kilo of marijuana. Accused-appellant Doria was apprehended when he later
returned and handed the brick of marijuana to PO3 Manlangit.
PO3 Manlangit testified in a
frank, spontaneous, straighforward and categorical manner and his credibility
was not crumpled on cross-examination by defense counsel. Moreover, PO3
Manlangit's testimony was corroborated on its material points by SPO1 Badua,
his back-up security. The non-presentation of the confidential informant is not
fatal to the prosecution. Informants are usually not presented in court because
of the need to hide their identity and preserve their invaluable service to the
police.[93] It is well-settled that except when the appellant
vehemently denies selling prohibited drugs and there are material
inconsistencies in the testimonies of the arresting officers,[94] or there are reasons to believe that the arresting
officers had motives to testify falsely against the appellant,[95] or that only the informant was the poseur-buyer who
actually witnessed the entire transaction,[96] the testimony of the informant may be dispensed with
as it will merely be corroborative of the apprehending officers' eyewitness
testimonies.[97] There is no need to present the informant in court
where the sale was actually witnessed and adequately proved by prosecution
witnesses.[98]
The inconsistencies in PO3
Manlangit's and SPO1 Badua's testimonies and the other police officers'
testimonies are minor and do not detract from the veracity and weight of the
prosecution evidence. The source of the money for the buy-bust operation is not
a critical fact in the case at bar. It
is enough that the prosecution proved that money was paid to accused-appellant
Doria in consideration of which he sold and delivered the marijuana.
Contrary to accused-appellant
Doria's claim, the one kilo of marijuana "sold" by him to PO3
Manlangit was actually identified by PO3 Manlangit himself before the trial
court. After appellants' apprehension, the Narcom agents placed this one (1)
brick of marijuana recovered from appellant Doria inside the carton box lumping
it together with the ten (10) bricks inside. This is why the carton box
contained eleven (11) bricks of marijuana when brought before the trial court. The
one (1) brick recovered from appellant Doria and each of the ten (10) bricks,
however, were identified and marked in court. Thus:
"ATTY. ARIAS, Counsel for Florencio Doria:
Mr. Police Officer, when you identified that box,. Tell the court, how were you able to identify that box?
A This is the box that I brought to the crime laboratory which contained the eleven pieces of marijuana brick we confiscated from the suspect, sir.
Q Please open it and show those eleven bricks.
PROSECUTOR Witness bringing out from the said box...
ATTY. VALDEZ, Counsel for Violeta Gaddao:
Your Honor, I must protest the line of questioning considering the fact that we are now dealing with eleven items when the question posed to the witness was what was handed to him by Jun?
COURT So be it.
ATTY. ARIAS May we make it of record that the witness is pulling out item after item from the box showed to him and brought in front of him.
COURT Noted.
Q Now tell the court,
how did you know that those are the eleven bricks?
x x x.
A I have markings on
these eleven bricks, sir.
Q Point to the court, where are those markings?
A Here, sir, my signature, my initials with the date, sir.
PROSECUTOR Witness showed a white wrapper and pointing to CLM and the signature.
Q Whose signature is that?
ATTY VALDEZ Your Honor, may we just limit the inquiry to the basic question of the fiscal as to what was handed to him by the accused Jun, your Honor?
PROSECUTOR Your Honor, there is already a ruling by this Honorable Court, your Honor, despite reconsideration.
COURT Let the prosecution do its own thing and leave the appreciation of what it has done to the court.
ATTY. VALDEZ We submit, your Honor.
A This brick is the one
that was handed to me by the suspect Jun, sir.
COURT Why do you know
that that is the thing? Are you sure that is not "tikoy?"
A Yes, your Honor.
Q What makes you so
sure?
A I am sure that this
is the one, your Honor. This is the Exhibit "A" which I marked before
I brought it to the PCCL, your Honor.
Q What are you sure of?
A I am sure that this
is the brick that was given to me by one alias Jun, sir.
Q What makes you so
sure?
A Because I marked it
with my own initials before giving it to the investigator and before we brought
it to the PCCL, your Honor.
x x x.
PROSECUTOR May we request
that a tag be placed on this white plastic bag and this be marked as Exhibit
"D?"
COURT Mark it as
Exhibit "D."
Q To stress, who made the entries of this date, Exhibit "A" then the other letters and figures on this plastic?
A This one, the signature, I made the signature, the date and the time and this Exhibit "A."
Q How about this one?
A I don't know who made this marking, sir.
PROSECUTOR May it be of record that this was just entered this morning.
Q I am asking you about this "itim" and not the "asul."
A This CLM, the date and the time and the Exhibit "A," I was the one who made these markings, sir.
PROSECUTOR May we place on record that the one that was enclosed...
ATTY. ARIAS Your Honor, there are also entries included in that enclosure where it appears D-394-95, also Exhibit "A," etc. etc., that was not pointed to by the witness. I want to make it of record that there are other entries included in the enclosure.
COURT Noted. The court saw it.
Q Now, and this alleged
brick of marijuana with a piece of paper, with a newspaper wrapping with a
piece of paper inside which reads: "D-394-95, Exhibit A, 970 grams
SSL" be marked as our Exhibit "D-2?"
COURT Tag it. Mark it.
Q This particular exhibit
that you identified, the wrapper and the contents was given to you by whom?
A It was given to me by
suspect Jun, sir.
Q Whereat?
A At the corner of
Boulevard and Jacinto St., sir.
Q How about the other
items that you were able to recover?
x x x.
A These other marijuana
bricks, because during our follow-up, because according to Jun the money which
I gave him was in the hands of Neneth and so we proceeded to the house of
Neneth, sir.
x x x."[99]
The first
brick identified by P03 Manlangit was the brick of marijuana "given to
[him] by suspect Jun" at the corner of Boulevard and Jacinto Streets. This
brick, including the newspaper and white plastic wrapping were marked as
Exhibits "D," "D-1," and "D-2" and described as weighing
nine hundred seventy (970) grams.[100]
We also reject appellant's
submission that the fact that PO3 Manlangit and his team waited for almost one
hour for appellant Doria to give them the one kilo of marijuana after he
"paid" P1,600.00 strains credulity. Appellant cannot capitalize on the circumstance that the money
and the marijuana in the case at bar
did not change hands under the usual "kaliwaan" system. There is no rule of law which requires that
in "buy-bust" operations there must be a simultaneous exchange of the
marked money and the prohibited drug between the poseur-buyer and the pusher.[101] Again, the decisive fact is that the poseur-buyer
received the marijuana from the accused-appellant.[102]
We also hold that the warrantless
arrest of accused-appellant Doria is not unlawful. Warrantless arrests are
allowed in three instances as provided by Section 5 of Rule 113 of the 1985
Rules on Criminal Procedure, to wit:
"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 escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.
x x x."[103]
Under
Section 5 (a), as above-quoted, a person may be arrested without a warrant if
he "has committed, is actually committing, or is attempting to commit an
offense." Appellant Doria was caught in the act of committing an offense.
When an accused is apprehended in flagrante delicto as a result of a buy-bust
operation, the police are not only authorized but duty-bound to arrest him even
without a warrant.[104]
The warrantless arrest of
appellant Gaddao, the search of her person and residence, and the seizure of
the box of marijuana and marked bills are different matters.
Our Constitution proscribes search
and seizure without a judicial warrant and any evidence obtained without such
warrant is inadmissible for any purpose in any proceeding.[105] The rule is, however, not absolute. Search and
seizure may be made without a warrant and the evidence obtained therefrom may
be admissible in the following instances:[106] (1) search incident to a lawful arrest;[107] (2) search of a moving motor vehicle;[108] (3) search in violation of customs laws;[109] (4) seizure of evidence in plain view;[110] (5) when the accused himself waives his right
against unreasonable searches and seizures.[111]
The prosecution admits that
appellant Gaddao was arrested without a warrant of arrest and the search and
seizure of the box of marijuana and the marked bills were likewise made without
a search warrant. It is claimed, however, that the warrants were not necessary
because the arrest was made in "hot pursuit" and the search was an
incident to her lawful arrest.
To be lawful, the warrantless
arrest of appellant Gaddao must fall under any of the three (3) instances
enumerated in Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure as
aforequoted. The direct testimony of
PO3 Manlangit, the arresting officer, however shows otherwise:
"ATTY VALDEZ, Counsel for appellant Gaddao:
We submit at this juncture, your Honor, that there will be no basis for that question.
Q This particular exhibit that you identified, the wrapper and the contents was given to you by whom?
A It was given to me by suspect Jun, sir.
Q Whereat?
A At the corner of Boulevard and Jacinto Street, sir.
Q How about the other items that you were able to recover?
ATTY. VALDEZ: We submit at this juncture, your Honor, that there will be no basis for that question.
COURT There is. Answer.
A These other marijuana
bricks, because during our follow-up, because according to Jun the money
which I gave him was in the hands of Neneth and so we proceeded to the house of
Neneth, sir.
Q Whereat?
A At Daang Bakal near
the crime scene at Shaw Boulevard, sir.
Q And what happened upon
arrival thereat?
A We saw alias Neneth
inside the house and we asked him to give us the buy-bust money, sir.
Q You mentioned "him?"
A Her, sir. We asked
her to give us the money, the marked money which Jun gave her, sir.
Q And what happened?
A At this instance, it was SPO1 Badua who can testify regarding this buy-bust money, sir.
x x x."[112]
SPO1 Badua testified on cross-examination
that:
Q What was your
intention in going to the house of Aling Neneth?
A To arrest her, sir.
Q But the fact is, Mr.
Witness, when you reached the house of Aling Neneth, Aling Neneth was there?
A Yes, sir.
Q As far as you can see,
she was just inside her house?
A I saw her outside,
sir.
Q She was fetching water
as a matter of fact?
A She was `sa bandang
poso.'
Q Carrying a baby?
A No, sir.
Q At that particular
time when you reached the house of Aling Neneth and saw her outside the house, she
was not committing any crime, she was just outside the house?
A No, sir.
Q She was not about to
commit any crime because she was just outside the house doing her daily
chores. Am I correct?
A I just saw her
outside, sir.
Q And at that point in
time you already wanted to arrest her.
That is correct, is it not?
A Yes, sir.
Q Now, if any memory of your testimony is correct, according to you SPO1 Manlangit approached her?
A PO3 Manlangit, sir.
Q You did not approach her because PO3 Manlangit approached her?
A Yes, sir.
Q During all the time that this confrontation, arrest or whatever by SPO3 Manlangit was taking place, you were just in the side lines?
A I was just watching, sir.
Q So you were just an on-looker to what Manlangit was doing, because precisely according to you your role in this buy-bust operation was as a back-up?
A Yes, sir.
Q Who got the alleged marijuana from inside the house of Mrs. Neneth?
A PO3 Manlangit, sir.
Q Manlangit got the marijuana?
A Yes, sir.
Q And the money from Aling Neneth?
A I don't know, sir.
Q You did not even know who got the money from Aling Neneth?
PROSECUTOR:
There is no basis for this question, your Honor. Money, there's no testimony on that.
ATTY. VALDEZ:
I was asking him precisely.
PROSECUTOR:
No basis.
COURT:
Sustained.
Q Alright. I will ask you a question and I expect an
honest answer. According to the
records, the amount of P1,600.00 was recovered from the person of Aling
Neneth. That's right?
A Yes, sir, the buy-bust money.
Q What you are now saying for certain and for the record is the fact that you were not the one who retrieved the money from Aling Neneth, it was Manlangit maybe?
A I saw it, sir.
Q It was Manlangit who got the money from Aling Neneth?
A The buy-bust money was recovered from the house of Aling Neneth, sir.
Q It was taken from the house of Aling Neneth, not from the person of Aling Neneth. Is that what you are trying to tell the Court?
A No, sir.
ATTY. VALDEZ: I am through
with this witness, your Honor."[113]
Accused-appellant Gaddao was not caught
red-handed during the buy-bust operation to give ground for her arrest under
Section 5 (a) of Rule 113. She was not
committing any crime. Contrary to the finding of the trial court, there was no
occasion at all for appellant Gaddao to flee from the policemen to justify her
arrest in "hot pursuit."[114] In fact, she was going about her daily chores when
the policemen pounced on her.
Neither could the arrest of
appellant Gaddao be justified under the second instance of Rule 113. "Personal knowledge" of facts in
arrests without warrant under Section 5 (b) of Rule 113 must be based upon
"probable cause" which means an "actual belief or reasonable
grounds of suspicion."[115] The grounds of suspicion are reasonable when, in the
absence of actual belief of the arresting officers, the suspicion that the
person to be arrested is probably guilty of committing the offense, is based on
actual facts, i.e., supported by circumstances sufficiently strong in
themselves to create the probable cause of guilt of the person to be arrested.[116] A reasonable suspicion therefore must be founded on
probable cause, coupled with good faith on the part of the peace officers
making the arrest.[117]
Accused-appellant Gaddao was
arrested solely on the basis of the alleged identification made by her
co-accused. PO3 Manlangit, however,
declared in his direct examination that appellant Doria named his co-accused in
response to his (PO3 Manlangit's) query as to where the marked money
was.[118] Appellant Doria did not point to appellant Gaddao as
his associate in the drug business, but as the person with whom he left the
marked bills. This identification does
not necessarily lead to the conclusion that appellant Gaddao conspired with her
co-accused in pushing drugs. Appellant
Doria may have left the money in her house,[119] with or without her
knowledge, with or without any conspiracy.
Save for accused-appellant Doria's word, the Narcom agents had no
reasonable grounds to believe that she was engaged in drug pushing. If there is no showing that the person who
effected the warrantless arrest had, in his own right, knowledge of facts
implicating the person arrested to the perpetration of a criminal offense, the
arrest is legally objectionable.[120]
Since the warrantless arrest of
accused-appellant Gaddao was illegal, it follows that the search of her person
and home and the subsequent seizure of the marked bills and marijuana cannot be
deemed legal as an incident to her arrest.
This brings us to the question of whether the trial court correctly
found that the box of marijuana was in plain view, making its warrantless
seizure valid.
Objects falling in plain view of
an officer who has a right to be in the position to have that view are subject
to seizure even without a search warrant and may be introduced in evidence.[121] 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.[122] The law enforcement officer must lawfully make an
initial intrusion or properly be in a position from which he can particularly
view the area.[123] In the course of such lawful intrusion, he came
inadvertently across a piece of evidence incriminating the accused.[124] The object must be open to eye and hand[125] and its discovery inadvertent.[126]
It is clear that an object is in
plain view if the object itself is plainly exposed to sight. The difficulty arises when the object is
inside a closed container. Where the object
seized was inside a closed package, the object itself is not in plain view and
therefore cannot be seized without a warrant.
However, if the package proclaims its contents, whether by its
distinctive configuration, its transparency, or if its contents are obvious to
an observer, then the contents are in plain view and may be seized.[127] In other words, if the package is such that an
experienced observer could infer from its appearance that it contains the
prohibited article, then the article is deemed in plain view.[128] It must be immediately apparent to the police that the
items that they observe may be evidence of a crime, contraband or otherwise
subject to seizure.[129]
PO3 Manlangit, the Narcom agent
who found the box, testified on cross-examination as follows:
"ATTY. VALDEZ:
So here we are. When you and Badua arrived, Aling Neneth was inside the house?
A Yes, sir.
Q Badua demanded from Aling Neneth the buy-bust money?
A Yes, sir.
Q At that particular
instance, you saw the carton?
A Yes, sir.
Q This carton, according
to you was under a table?
A Yes, sir, dining
table.
Q I noticed that this
carton has a cover?
A Yes, sir.
Q I ask you were the
flaps of the cover raised or closed?
A It was open,
sir. Not like that.
COURT
Go down there. Show to the court.
INTERPRETER
Witness went down the witness stand and approached a carton box.
A Like this, sir.
PROSECUTOR
Can we describe it?
ATTY. VALDEZ
Yes.
PROSECUTOR
One flap is inside and the other flap is
standing and with the contents visible.
COURT
Noted.
Q At this juncture, you
went inside the house?
A Yes, sir.
Q And got hold of this
carton?
A Yes, sir.
Q Did you mention
anything to Aling Neneth?
A I asked her, what's
this...
Q No, no. no. did you mention anything to Aling Neneth before getting the carton?
A I think it was Badua who accosted Aling Neneth regarding the buy-bust money and he asked "Sa iyo galing ang marijuanang ito, nasaan ang buy-bust money namin?" sir.
Q Making reference to the marijuana that was given by alias Jun?
A Yes, sir.
Q When you proceeded to take hold of this carton, Aling Neneth was not yet frisked, is it not [sic]?
A I just don't know if she was frisked already by Badua, sir.
Q Who got hold of this?
A I was the one, sir.
Q You were the one who got this?
A Yes, sir.
Q At that particular point in time, you did not know if the alleged buy-bust money was already retrieved by Badua?
A Yes, sir.
Q You went inside the house?
A Yes, sir.
Q You did not have any search warrant?
A Yes, sir.
Q In fact, there was nothing yet as far as you were concerned to validate the fact that Mrs. Gadao was in possession of the buy-bust money because according to you, you did not know whether Badua already retrieved the buy-bust money from her?
A Yes, sir.
Q How far was this from the door?
A Two and a half meters from the door, sir. It was in plain view.
Q Under the table according to you?
A Yes, sir, dining table.
Q Somewhere here?
A It's far, sir.
PROSECUTOR
May we request the witness to place it, where he saw it?
A Here, sir.
Q What you see is a
carton?
A Yes, sir, with
plastic.
Q Marked "Snow Time
Ice Pop?"
A Yes, sir.
Q With a piece of
plastic visible on top of the carton?
A Yes, sir.
Q That is all that you
saw?
A Yes, sir.
PROSECUTOR
For the record, your Honor...
Q You were only able to verify according to you...
PROSECUTOR
Panero, wait. Because I am objecting to the words a piece of plastic. By reading it...
ATTY. VALDEZ
That's a piece of plastic.
PROSECUTOR
By reading it, it will connote... this is not a piece of plastic.
ATTY. VALDEZ
What is that? What can you say, Fiscal? I'm asking you?
PROSECUTOR
With due respect, what I am saying is, let's place the size of the plastic. A piece of plastic may be big or a small one, for record purposes.
COURT
Leave that to the court.
PROSECUTOR
Leave that to the court.
Q The only reason
according to you, you were able to... Look at this, no even Superman... I
withdraw that. Not even a man with very
kin [sic] eyes can tell the contents here. And according to the Court, it could be "tikoy," is it
not [sic]?
A Yes, sir.
Q Siopao?
A Yes, sir.
Q Canned goods?
A Yes, sir.
Q It could be ice cream
because it says Snow Pop, Ice Pop?
A I presumed it was
also marijuana because it may ...
Q I am not asking you
what your presumptions are. I'm asking
you what it could possibly be.
A It's the same
plastic, sir.
ATTY. VALDEZ
I'm not even asking you that question so why are you voluntarily saying the information. Let the prosecutor do that for you.
COURT
Continue. Next question.
x x x."[130]
PO3
Manlangit and the police team were at appellant Gaddao's house because they
were led there by appellant Doria. The
Narcom agents testified that they had no information on appellant Gaddao until
appellant Doria named her and led them to her.[131] Standing by the door of appellant Gaddao's house,
PO3 Manlangit had a view of the interior of said house. Two and a half meters away was the dining
table and underneath it was a carton box.
The box was partially open and revealed something wrapped in plastic.
In his direct examination, PO3
Manlangit said that he was sure that the contents of the box were marijuana
because he himself checked and marked the said contents.[132] On cross-examination, however, he admitted that he merely presumed the contents
to be marijuana because it had the same plastic wrapping as the "buy-bust
marijuana." A close scrutiny of
the records reveals that the plastic wrapper was not colorless and transparent
as to clearly manifest its contents to a viewer. Each of the ten (10) bricks of marijuana in the box was
individually wrapped in old newspaper and placed inside plastic bags-- white,
pink or blue in color.[133] PO3 Manlangit himself admitted on cross-examination
that the contents of the box could be items other than marijuana. He did not know exactly what the box
contained that he had to ask appellant Gaddao about its contents.[134] It was not immediately apparent to PO3 Manlangit
that the content of the box was marijuana. The
marijuana was not in plain view and its seizure without the requisite search
warrant was in violation of the law and the Constitution.[135] It was fruit of the poisonous tree and should have
been excluded and never considered by the trial court.[136]
The fact that the box containing
about six (6) kilos of marijuana[137] was found in the house of accused-appellant Gaddao
does not justify a finding that she herself is guilty of the crime
charged.[138] Apropos is our ruling in People v. Aminnudin,[139] viz:
"The Court strongly supports the campaign of the government against drug addiction and commends the efforts of our law enforcement officers against those who would inflict this malediction upon our people, especially the susceptible youth. But as demanding as this campaign may be, it cannot be more so than the compulsions of the Bill of Rights for the protection of the liberty of every individual in the realm, including the basest of criminals. The Constitution covers with the mantle of its protection the innocent and the guilty alike against any manner of high-handedness from the authorities, however praiseworthy their intentions.
Those who are supposed to enforce the law are not justified in
disregarding the right of the individual in the name of order. Order is too high a price for the loss of
liberty. As Justice Holmes, again,
said, 'I think it a less evil that some criminals should escape than that the
government should play an ignoble part.'
It is simply not allowed in the free society to violate a law to enforce
another, especially if the law violated is the Constitution itself."[140]
Section 4 of Republic Act No.
6425, the Dangerous Drugs Act of 1972, as amended by Section 13 of Republic Act
No. 7659 punishes the "sale, administration, delivery, distribution and
transportation of a prohibited drug" with the penalty of reclusion
perpetua to death and a fine ranging from P500,000.00 to P10
million, to wit:
"Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs.-- The penalty of reclusion perpetua to death, and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions.
x x x."
In every prosecution for illegal sale of dangerous drugs, what is
material is the submission of proof that the sale took place between the
poseur-buyer and the seller thereof and the presentation of the drug, i.e., the
corpus delicti, as evidence in court.[141] The prosecution has clearly established the fact
that in consideration of P1,600.00 which he received, accused-appellant
Doria sold and delivered nine hundred seventy (970) grams of marijuana to PO3
Manlangit, the poseur-buyer. The
prosecution, however, has failed to prove that accused-appellant Gaddao
conspired with accused-appellant Doria in the sale of said drug. There being no mitigating or aggravating
circumstances, the lower penalty of reclusion perpetua must be imposed.[142]
IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch
156, Pasig City acting as a Special Court in Criminal Case No. 3307-D is
reversed and modified as follows:
1. Accused-appellant Florencio Doria y Bolado
is sentenced to suffer the penalty of reclusion perpetua and to pay a
fine of five hundred thousand pesos (P500,000.00).
2. Accused-appellant Violeta Gaddao y Catama is acquitted.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo,
Melo, Vitug, Kapunan, Mendoza, Martinez, Quisumbing, Purisima, Pardo, Buena, and Gonzaga-Reyes, JJ., concur.
Panganiban, J., please see concurring opinion.
[1]
Republic Act No. 6425, as amended by R.A. 7659.
[2]
Rollo, pp. 6-7.
[3]
Exhibits "A-1" to "A-4," "B-1" to
"B-3."
[4]
Exhibits "C-1" and "C-2."
[5]
TSN of February 6, 1996, p. 10.
[6]
TSN of February 6, 1996, pp. 11-12.
[7]
TSN of February 6, 1996, p. 18.
[8]
TSN of March 12, 1996, p. 18.
[9]
Exhibit "S," Request for Laboratory Examination.
[10]
Exhibits "Q," and "R;" TSN of March 5, 1996, pp. 2-11.
[11]
TSN of May 8, 1996, pp. 2-8.
[12] TSN of April 10, 1996, pp. 4-17.
[13]
Decision of the trial court, pp. 13-14, Rollo, pp. 30-31.
[14]
Brief for Accused-Appellant Florencio Doria, pp. 8, 14, Rollo, pp. 52,
58.
[15]
Brief for Accused-Appellant Violeta Gaddao, p. 39, Rollo, p. 126.
[16]
People v. Basilgo, 235 SCRA 191 [1994]; People v. Yap, 229 SCRA
787 [1994]; People v. Macasa, 229 SCRA 422 [1994].
[17]
People v. Herrera, 247 SCRA 433 [1995]; People v. Tadepa, 244 SCRA 339
[1995]; People v. Basilgo, supra.
[18]
21 Am Jur 2d, "Criminal Law," Sec. 203 [1981 ed.]; see also State v.
Campbell, 110 NH 238, 265 A2d 11, 13 [1970]-- sale of narcotics; Annotation in
62 ALR 3d 110, Sec. 2[a].
[19]
21 Am Jur 2d, "Criminal Law," Sec. 204 [1981 ed.]; see also United
States ex rel. Hall v. Illinois (CA7 Ill) 329 F2d 354, 358-359 cert den 379 US
891, 13 L Ed 2d 94, 85 S Ct 164 [1964]-- unlawful sale and possession of
narcotic drugs.
[20]
Id; see also State v. Campbell, supra, at 13; United
States v. Becker (CA2 NY) 62 F2d 1007, 1009 [1933]-- sending obscene
matter in interstate commerce.
[21]
21 Am Jur 2d, "Criminal Law," Sec. 202 [1981 ed.].
[22]
287 U.S. 435, 53 S. Ct. 210, 77 L Ed 413 [1932]. This case involved the sale of
liquor in violation of the Prohibition Act. The majority decision was penned by
Chief Justice Hughes. Justice Roberts wrote a concurring opinion.
[23]
at 287 U.S. 454, 77 L Ed 423; also cited in People v. Bernal (4th Dist)
345 P 2d 140,143, 174 Cal App 2d 777 [1959]; People v. Outten, 147 NE 2d
284,285, 13 Ill 2d 21 [1958]; Swift v. Commonwealth, 100 SE 2d 9, 12,
199 Va 420 [1957]; see also 21 Am Jur 2d, "Criminal Law," Sec. 202.
[24]
21 Am Jur 2d, supra, at Sec. 202.
[25]
People v. Outten, supra, at 286.
[26]
Sorrells v. United States, 287 U.S. 435, 442, 451-452 [1932].
[27]
Hoy v. State, 53 Ariz 440, 90 P2d 623, 628-629 [1939]--bribery; see 21 Am Jur 2d, supra, Sec. 202.
[28]
Woo Wai v. United States, 233 Fed. 412 (6th Cir. 1916); Sorrells v.
United States, supra, at 452-- the defense is available, not in the view
that the accused though guilty may go free, but that the government cannot be
permitted to contend that he is guilty of the crime when the government
officials are the instigators of his conduct; see also 22 C.J.S.,
"Criminal Law," Sec. 45, [1940 ed.].
[29]
21 Am Jr 2d, "Criminal Law," Sec. 203.
[30]
Christopher Moore, "The Elusive Foundation of the Entrapment
Defense," Northwestern University Law Review, vol. 89: 1151, 1153-1154 [Spring
1995]; Scott C. Paton, "The Government Made Me Do It: A Proposed Approach
to Entrapment under Jacobson v. United States," Cornell Law Review,
vol. 79:885, 1000-1001 [1994]; Roger Park, "The Entrapment
Controversy," Minnesota Law Review, vol. 60: 163, 165 [1976].
[31]
The "subjective" test is also referred to as the Sherman-Sorrells
doctrine, a reference to the fact that the test was adopted by a majority of
the U.S. Supreme Court in the cases of Sherman v. United States, 356
U.S. 369, 2 L Ed 2d 848, 78 S Ct 819 [1958] and Sorrells v. United
States, supra-- Wayne R. LaFave and Austin W. Scott, Jr., Criminal Law,
Hornbook series, 2d ed., p. 422 [1986].
[32]
Sorrells v. United States, supra, at 451-452; Sherman v. United
States, 356 U.S. 369, 373, 2 L ed 2d 848, 78 S Ct 819 [1958].
[33]
Paton, supra, at 1001-1002.
[34]
LaFave and Scott, supra, at 422.
[35]
Sherman v. United States, supra, at 356 U.S. at 372-373.
[36]
United States v. Russell, 411 U.S. 423, 435-437, 36 L Ed 2d 366,
3750376, 93 S Ct 1637 [1973]; see also Park, supra, at 165.
[37]
Or the Roberts-Frankfurter approach, after the writers of the concurring
opinions in Sorrells and Sherman-- LaFave and Scott, supra, at 423.
[38]
457 P. 2d 226 [Alaska 1969].
[39]
Grossman v. State, 457 P. 2d 226, 229 [Alaska 1969]; Paton, supra,
at 1002.
[40]
Sorrells v. United States, 287 U.S. at 453, Roberts, J., concurring;
Sherman v. United States, 356 U.S. at 378-385, Frankfurter, J.,
concurring.
[41]
Grossman v. State, 457 P. 2d 226, 229 [Alaska 1969].
[42]
People v. Barraza, 591 P. 2d 947, 955 [California 1979]-- selling
heroin.
[43]
People v. Barraza, supra, at 955.
[44]
Sherman v. United States, 356 U.S. 369, 383 [1958] Frankfurter, J.,
concurring; Grossman v. State, supra, at 230; see also Park, supra,
Note 212, at 227.
[45]
LaFave and Scott, supra, at 424.
[46]
Grossman v. State, supra, at 230; People v. Barraza, supra,
at 955-956.
[47]
LaFave and Scott, supra, at 425-426.
[48]
Id. Other objections are also discussed in said book.
[49]
Id.
[50]
Id.
[51]
Paton, supra, at 1005-1006.
[52]
465 So. 2d 516 [Fla. 1985].
[53] Id. at 521-522.
[54]
742 P. 2d 1043 [N.M. 1987].
[55]
Paton, supra, at 1039.
[56]
16 Phil. 440 [1910].
[57]
This case was interpreted in People v. Hilario and Aguila, 93 Phil. 386,
390 [1953], where the Supreme Court declared that the "criminal
intent" to smoke opium "originated in the mind of the entrapping
agent" and the accused was merely induced to commit the act by repeated
and persistent solicitation. In Phelps, the court disregarded the evidence of
Phelps' predisposition to commit the crime.
[58]
Id., at 443-444.
[59]
46 Phil. 857 [1923].
[60]
Id., at 861.
[61]
56 Phil. 44 [1931].
[62]
Id. at 53-54.
[63]
Id.
[64]
Page 88, section 57.
[65]
Id., at 52-53; also cited in People v. Hilario and Aguila, 93
Phil. 386, 389-390 [1953].
[66]
40 O.G. No. 23, p. 4476 [1941].
[67]
Id., at 4478.
[68]
43 O.G. No. 4, p. 1286 [1947].
[69]
Id., at 1287.
[70]
96 Phil. 738, 741 [1955].
[71]
Id.; also cited in Aquino, Revised Penal Code, vol. 2, p. 240 [1997].
[72]
Absolutory causes are those causes where the act committed is a crime but for
reasons of public policy and sentiment there is no penalty imposed-- Reyes,
Revised Penal Code, Book I, pp. 231-232 [1993].
[73]
People v. Cruz, 231 SCRA 759 [1994]; People v. Poliza, 214 SCRA
56 [1992]; People v. Lapatha, 167 SCRA 159 [1988] citing U.S. v.
Phelps, supra; People v. Flores, 165 SCRA 71 [1988]; People v.
Ale, 145 SCRA 50 [1986]; People v. Fernando, 145 SCRA 151 [1986]; People
v. Patog, 144 SCRA 429 [1986]; People v. Valmores, 122 SCRA 922
[1983] citing People v. Lua Chu, etc.
[74]
152 SCRA 263, 271 [1987]. Although the accused did not raise the defense of
instigation, the court examined the conduct of the police at the buy-bust
operation and admitted evidence of the accused's past and predisposition to
commit the crime.
[75]
Accused was previously convicted of frustrated murder, robbery, hold-up and
drug pushing. In the drug-pushing case, he was detained at Welfareville but
escaped-- People v. Boholst, 152 SCRA 263, 271 [1987].
[76] 188 SCRA 1, 15 [1990].
[77]
Richard C. Donnelly, "Judicial Control of Informants, Spies, Stool Pigeons
and Agent Provocateurs," The Yale
Law Journal, vol. 60: 1091, 1093 [1951].
[78]
Reyes, Revised Penal Code, Book I, pp. 54-55 [1993].
[79]
Id.
[80]
Donnelly, supra, at 1093. Instead of "mala prohibita,"
Donnelly uses the term "regulatory statutes."
[81]
Id.
[82]
Id.
[83]
Id., at 1094.
[84]
People v. Simon, 234 SCRA 555, 563 [1994]; People v. Cruz, 231
SCRA 759, 764 [1994]; People v. Crisostomo, 222 SCRA 511, 514 [1993];
People v. Fernando, 145 SCRA 151, 159 [1986]; People v. Ale, 145
SCRA 50, 58-59 [1986].
[85]
Id.
[86]
People v. Cruz, 231 SCRA 759, 764-765 [1994]; People v. Salcedo,
195 SCRA 345, 352 [1991]; People v. William, 209 SCRA 808, 814 [1992];
People v. Ale, 145 SCRA 50, 58-59 [1986].
[87]
591 P. 2d 947 [Cal. 1979].
[88]
Id. at 955. The Supreme Court of California quoted Richard C. Donnelly,
"Judicial Control of Informants, Spies, Stool Pigeons and Agent
Provocateurs," Yale Law Journal, vol. 60: 1091, 1111 [1951], also
herein cited; See also Paton, Cornell Law Review, supra, at Note 55. It
must be noted, however, that entrapment is not based on constitutional grounds
as search and seizure and forced confessions-- United States v. Russell,
411 U.S. 423, 430, 36 L Ed 2d 366, 372-373, 93 S Ct 1637 [1973].
[89]
Tambasen v. People, 246 SCRA 184 [1995]; People v. Rigodon, 238
SCRA 27 [1994]; People v. Cruz, 231 SCRA 759, 771 [1994].
[90]
Sorrells v. United States, supra, at 457, Roberts, J.,
concurring.
[91]
Tambasen v. People, 246 SCRA 184, 191 [1995]; People v. Rigodon,
238 SCRA 27, 35 [1994]; People v. Cruz, 231 SCRA 759, 771 [1994].
[92]
People v. Tadepa, 244 SCRA 339, 341-342 [1995]; People v.
Crisostomo, 222 SCRA 511, 515 [1993].
[93]
People v. Gireng, 241 SCRA 11 [1995]; People v. Nicolas, 241 SCRA
67 [1995]; People v. Marcelo, 223 SCRA 24 [1993].
[94]
People v. Ale, 145 SCRA 50 [1994].
[95]
People v. Sillo, 214 SCRA 74 [1992].
[96]
People v. Sahagun, 182 SCRA 91 [1990]; People v. Libag, 184 SCRA
707, 717-715 [1990]; People v. Ramos, 186 SCRA 184, 191-192 [1990].
[97]
People v. Lucero, 229 SCRA 1, 9-10 [1994]; People v. Tranca, 235
SCRA 455, 464 [1994]; People v. Solon, 244 SCRA 554, 561 [1995]; People v.
Herrera, 247 SCRA 433 [1995].
[98]
People v. Solon, 244 SCRA 554 [1995]; People v. Ong Co, 245 SCRA
733 [1995].
[99]
TSN of February 20, 1996, pp. 14-18; Emphasis supplied.
[100]
TSN of February 20, 1996, pp. 16-17.
[101]
People v. Ponsica, 230 SCRA 87, 95-96 [1994]; People v. Agustin,
215 SCRA 725, 732-733 [1992].
[102]
People v. Agustin, supra, at 732-733.
[103]103 Emphasis supplied.103
[104]
People v. Sibug, 229 SCRA 489 [1994]; People v. de Lara, 236 SCRA
291 [1994]; People v. Labarias, 217 SCRA 483 [1993].
[105]
Sections 2 and 3 (2), Article III.
[106]
Hizon v. Court of Appeals, 265 SCRA 517, 527 [1996]; People v.
Fernandez, 239 SCRA 174, 182-183 [1994]; Roan v. Gonzales, 145 SCRA 687,
697 [1986]; see also Bernas, The Constitution of the Republic of the
Philippines, p. 169 [1996]; Cruz, Constitutional Law, pp. 147-153 [1986].
[107]
Section 12, Rule 126; Section 5, Rule 113, Revised Rules on Criminal Procedure.
[108]
People v. Bagista, 214 SCRA 63, 69 [1992]; People v. Lo Ho Wing,
193 SCRA 122, 126-128 [1991].
[109] Roldan, Jr. v. Arca, 65 SCRA 336,
348 [1975]; Papa v. Mago, 22 SCRA 857, 871-874 [1968].
[110]
People v. Tabar, 222 SCRA 144, 153 [1993]; Roan v. Gonzales, 145
SCRA 687, 697 [1986].
[111]
People v. Tabar, supra, at 153-154; Alvarez v. CFI, 64
Phil. 33, 48 [1937]; People v. Kagui Malasugui, 63 Phil. 221, 226
[1936].
[112]
TSN of February 20, 1996, pp. 17-18; Direct examination; Emphasis supplied.
[113]
TSN of March 12, 1996, pp. 16-18, Cross-examination by counsel for Violeta
Gaddao; Emphasis supplied.
[114]
Compare with People v. Bati, 189 SCRA 97, 103 [1990], where the two
accused were pursued and arrested a few minutes after consummating the sale of
marijuana. "Hot pursuit" has a technical meaning. It is a doctrine in International Law which
means the pursuit in the high seas of a foreign vessel undertaken by the
coastal state which has good reason to believe that the ship has violated the
laws and regulations of that state (Salonga and Yap, Public International Law,
p. 90 [1992]).
[115] Umil v. Ramos, 202 SCRA 251, 263
[1991]; United States v. Santos, 36 Phil. 851 [1917]. Police officers
had personal knowledge of the actual commission of the crime after conducting a
surveillance of the accused (People v. Bati, 189 SCRA 97 [1990]; People v.
Sucro, 195 SCRA 388 [1990]), or a prior test-buy operation (People v.
Ramos, 186 SCRA 184 [1990]).
[116]
Id.
[117]
Id.
[118]
PO3 Manlangit affirmed this fact in his cross-examination by counsel for
appellant Gaddao-- TSN of February 20, 1996, pp. 42-43.
[119] SPO1 Badua's testimony does not clearly
establish where he found the marked bills-- whether from appellant Gaddao's
person or after a search of her house.
[120]
Pamaran, The 1985 Rules on Criminal Procedure Annotated, p. 195 [1995].
[121]
Harris v. United States, 390 U.S. 234, 19 L. Ed. 2d 1067, 1069 [1968];
see also Bernas, supra, at 174.
[122]
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]; see also People
v. Musa, 217 SCRA 597, 611 [1993] citing both cases.
[123]
Harris v. United States, supra, at 1069.
[124]
Coolidge v. New Hampshire, supra, at 582.
[125]
Roan v. Gonzales, 145 SCRA 687, 697 [1986]; Cruz, supra, at 151.
[126]
Roan v. Gonzales, supra, at 697, citing Harris v. United
States, supra; Bernas, supra, at 174 citing Coolidge v.
New Hampshire, 403 U.S. 443, 472 [1971].
[127]
Robbins v. California, 453 U.S. 420, 69 L. Ed. 2d 744, 751 [1981]; also
cited in People v. Musa, supra, at 612 and Note 48; Arkansas v. Sanders, 442 U.S. 753, 61
L. Ed. 2d 235, 245, Note 13 [1979].
[128]
Robbins v. California, supra, at 751; Texas v. Brown, supra,
at 514.
[129] People v. Musa, supra, at
611.
[130]
TSN of February 20, 1996, pp. 44-47; Emphasis supplied.
[131]
TSN of February 20, 1996, p. 31.
[132]
TSN of February 20, 1996, pp. 15-16.
[133]
Exhibits "F," "G," "H," "I,"
"J," "K," "L," "M," "N,"
"O;" TSN of February 20, 1996, pp. 22-25; see also Exhibit "S--"
Request for Laboratory Examination.
[134]
In People v. Musa, 217 SCRA 597, 612 [1993], the Narcom agents found
marijuana in a plastic bag hanging in one corner of the kitchen. The agents had no clue as to the contents of
the bag and had to ask the accused what it contained. The Supreme Court held that the marijuana was not in plain view.
[135]
Section 2, Bill of Rights, 1987 Constitution.
[136] People v. Aminnudin, 163 SCRA 403,
410 [1988].
[137]
The total weight of 7,641.08 grams or 7.6 kilos of marijuana included the 970
grams (or almost one kilo) of "buy-bust marijuana" given by appellant
Doria (See "Request for Laboratory Examination," Exhibit
"S"). Deducting this 970 grams, the ten bricks of marijuana found in
the box weigh 6,671.08 grams or approximately 6 kilos.
[138] People v. Aminnudin, 163 SCRA 402,
410 [1988].
[139]
Id.
[140]
Id, at 410-411; also cited in People v. Flores, 165 SCRA 71, 85
[1988].
[141]
People v. Zervoulakos, 241 SCRA 625 [1995]; People v. Martinez,
235 SCRA 171 [1994]; People v. Rigodon, 238 SCRA 27 [1994]. The exclusion or absence of the marked money
does not create a hiatus in the prosecution's evidence as long as the
drug subject of the illegal transaction was presented at the trial court--
People v. Nicolas, 241 SCRA 573 [1995]; People v. Lucero, 229
SCRA 1 [1994].
[142]
Section 23, R.A. 7659 amending Article 62 of the Dangerous Drugs Act; see also
Section 17 (5), R.A. 7659 amending Section 20 of the Dangerous Drugs Act.