G.R. No. 182010

G.R. No. 182010 – SUSAN ESQUILLO Y ROMINES v. PEOPLE OF THE PHILIPPINES

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DISSENTING OPINION

BERSAMIN, J.:

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

– Section 2, Article III of the Constitution

The petitioner was charged with, tried for, and convicted of the serious crime of illegal possession of methamphetamine hydrochloride or shabu weighing about 0.1224 gram in violation of Section 11, Article II of Republic Act (RA) No. 9165 (Comprehensive Dangerous Drugs Act of 2002) confiscated from her in a stop-and-frisk situation. She is now before the Court to seek the reversal of the decision dated November 27, 2007 rendered by the Court of Appeals (CA), affirming her conviction by the Regional Trial Court in Pasay City (RTC).[1]

The petitioner insists on her acquittal. She challenges the application of the stop-and-frisk principle as the justification for her warrantless arrest and confiscation of the evidence, and points to the abject failure of the arresting officer to justify his suspicion that she was committing a crime by her mere act of placing a transparent plastic sachet inside her cigarette case. She contends that her act was not per se suspicious.

The majority affirm the CA decision.

I cannot resist the compulsion to differ and dissent. My careful study moves me to agree with the petitioner that she should be acquitted in view of the illegality of the seizure and the resulting inadmissibility of the evidence used against her. In so declaring, I do not mind that her urine sample tested positive for substance abuse, for she was not charged with and tried for that shortcoming. I believe that the State should not have gone on to prosecute her, given that all the circumstances surrounding her unfortunate arrest indicated the grossest violation of her guaranteed right to privacy. The stop-and-frisk search was absolutely unwarranted and unreasonable.

Antecedents

During a covert surveillance operation mounted in Malibay, Pasay City against an alleged notorious snatcher held in the late afternoon of December 10, 2002, PO1 Alvin Cruzin, the arresting police officer, happened upon the petitioner, who was then standing about a mere three meters away from where he and as fellow police officer were. PO1 Cruzin saw her placing a transparent plastic sachet inside a yellow cigarette case. Although unsure at that moment of what was inside the plastic sachet, he became suspicious and approached her. In his mind, her behavior was strange. He introduced himself as a police officer and inquired about the plastic sachet. Instead of replying, she started to flee. He thus restrained her, and requested her to take the plastic sachet out of the cigarette case. He informed her of her constitutional rights, and confiscated the plastic sachet, which he subsequently marked with her initials “SRE.” He haled her to the police station for investigation and disposition.

Subject to her defenses, the petitioner admitted the genuineness and due execution of the Dangerous Drugs and Toxicology Reports rendered by the National Bureau of Investigation (NBI). The reports confirmed that the specimen found inside the plastic sachet was shabu, which contained

methamphetamine hydrochloride (Exhibit C); and that the urine sample taken from her was positive for metabolite amphetamine (Exhibit D).

The petitioner’s defense was frame-up. She assailed the legality of her arrest for the first time on appeal.

As stated, the RTC found the petitioner guilty of illegal possession of the dangerous substance, and imposed the penalty of imprisonment ranging from eight years and one day, as minimum, to 14 years, eight months and one day as maximum and to pay a fine of P350,000.00.[2] The RTC found the testimony of PO1 Cruzin positive and straightforward, hence, more credible than the evidence of the petitioner, which consisted of mere denials of the positive assertions of the Prosecution. Further, the RTC ruled that the legal presumption of regularity of performance of official duty in favor of the arresting officer was not rebutted, considering that she did not establish any evil motive on the part of the arresting officers to falsely accuse her; that the defenses of frame-up and extortion by the police in exchange for her release were purely self-serving assertions; and that the fact that she had been determined by the NBI laboratory to be a shabu user rendered it not a remote possibility that she had possessed the shabu for her personal use or consumption.[3] The majority modify the penalty with an indeterminate sentence ranging from 12 years and one day as minimum to 14 years as maximum.

In affirming the conviction, the CA indicated that the police officers had probable cause to effect a search of the petitioner under the concept of stop-and-frisk as an exception to the general rule requiring a warrant to search. The CA ruminated that under the principle of stop-and-frisk, the police officer was authorized “to stop a citizen on the street, interrogate him, and search him for weapon or contraband.”[4] The CA brushed aside the defense of frame-up, noting that she failed to adduce evidence showing that the officers had been impelled by any evil motive to falsely charge her; and further noting that she was even found positive for substance abuse.

Submissions

In support of my dissent, I make the following submissions.

The petitioner’s failure to assail the invalidity of her arrest prior to her arraignment, and her objecting to the inadmissibility of the evidence for the first time only on appeal on the ground that the search was illegal for being done despite her not committing any unlawful act to give a justification for the search did not amount to a waiver of her objection to the admissibility of the evidence against her.

The failure to object to the irregularity of an arrest prior to the arraignment does not involve a waiver of the inadmissibility of the evidence. It only amounts to a submission to the jurisdiction of the trial court. The Court said so in several decisions, including People v. Lapitaje,[5] viz:

A waiver of an illegal warrantless arrest does not also mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest. The following searches and seizures are deemed permissible by jurisprudence: (1) search of moving vehicles (2) seizure in plain view (3) customs searches (4) waiver or consent searches (5) stop and frisk situations (Terry Search) and (6) search incidental to a lawful arrest. The last includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected with a valid warrant of arrest, the Rules of Court recognize permissible warrantless arrests, to wit: (1) arrests in flagrante delicto, (2) arrests effected in hot pursuit, and, (3) arrests of escaped prisoners.[6]

The CA found nothing wrong or irregular in the arrest of the petitioner and in the search of her person and the seizure of the incriminating evidence from her due to the stop-and-frisk doctrine, a well-recognized exception to the warrant requirement.

I believe that the CA gravely erred in appreciating the factual situation of the search. The stop-and-frisk principle did not apply. The CA confused the stop-and-frisk principle with a search as incidental to a lawful arrest. The Court must correct the CA’s error and confusion.

In Terry v. Ohio,[7] circa 1968, the United States Supreme Court allowed a limited protective search of outer clothing for weapons, where a police officer observes unusual conduct that leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety.

Such permissible limited protective search is for the only purpose of enabling the officer to protect himself and others in the area, and is now known famously as the Terry stop-and-frisk.

A Terry stop-and-frisk is an exception to the constitutional requirement for a judicial warrant as a prerequisite to a valid arrest and search. It is entirely different from and should not be confused with a search incidental to a lawful arrest envisioned under Section 13, Rule 126, 2001 Rules of Criminal Procedure.[8] Although it did not expressly state so, the CA labored under the confused view that one and the other were indistinct and identical. That confused view guided the CA to wrongly affirm the petitioner’s unfortunate conviction.

We should now reverse the CA, not affirm its error, for it is necessary to remind the trial court and the CA that the stop-and-frisk search is entirely different from the search incidental to a lawful arrest. The distinctions have been made clear in Malacat v. Court of Appeals:[9]

xxx the trial court confused the concepts of a “stop-and-frisk” and of a search incidental to a lawful arrest. These two types of warrantless searches differ in terms of the requisite quantum of proof before they may be validly effected and in their allowable scope.

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

In addition to defining the distinctions between the stop-and-frisk search and the search incidental to a lawful arrest, Malacat v. Court of Appeals restated the justification for and the allowable scope of a Terry stop-and-frisk in the following terms:

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

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

Other notable points of Terry are that while probable cause is not required to conduct a “stop and frisk,” it nevertheless holds that mere suspicion or a hunch will not validate a “stop and frisk.” A genuine reason must exist, in light of the police officer’s experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him.Finally, a “stop-and-frisk” serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer.[10]

Another American judicial pronouncement, Minnesota v. Dickerson,[11] enlightens on the purpose and limits of a Terry stop-and-frisk, viz:

The Fourth Amendment, made applicable to the States by way of the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Time and again, this Court has observed that searches and seizures “‘conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well delineated exceptions.’ ” Thompson v. Louisiana, 469 U.S. 17, 19-20, 105 S.Ct. 409, 410, 83 L.Ed.2d 246 (1984) (per curiam) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) (footnotes omitted)); Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978); see also United States v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637, 2641, 77 L.Ed.2d 110 (1983). One such excepti on was recognized in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which held that “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot...,” the officer may briefly stop the suspicious person and make “reasonable inquiries” aimed at confirming or dispelling his suspicions. Id., 392 U.S., at 30, 88 S.Ct., at 1884; see also Adams v. Williams, 407 U.S. 143, 145-146, 92 S.Ct. 1921, 1922-1923, 32 L.Ed.2d 612 (1972).

Terry further held that “[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,” the officer may conduct a patdown search “to determine whether the person is in fact carrying a weapon.” 392 U.S., at 24, 88 S.Ct., at 1881. “The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence....” Adams, supra, at 146, 92 S.Ct., at 1923. Rather, a protective search - permitted without a warrant and on the basis of reasonable suspicion less than probable cause - must be strictly “limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.” Terry, supra, at 26, 88 S.Ct., at 1882; see also Michigan v. Long, 463 U.S. 1032, 1049, and 1052, n. 16, 103 S.Ct. 3469, 3480-3481, and 3482, n. 16, 77 L.Ed.2d 1201 (1983); Ybarra v. Illinois, 444 U.S. 85, 93-94, 100 S.Ct. 338, 343-344, 62 L.Ed.2d 238 (1979). If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed. Sibron v. New York, 392 U.S. 40, 65-66, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917 (1968).

To me, all the foregoing case law cumulatively shows that a Terry protective search is strictly limited to what is necessary for the discovery of weapons that may be used to harm the officer of the law or others nearby. There must then be a genuine reason to believe that the accused is armed and presently dangerous. Being an exception to the rule requiring a search warrant, a Terry protective search is strictly construed; hence, it cannot go beyond what is necessary to determine if the suspect is armed. Anything beyond is no longer valid and the fruits of the search will be suppressed.

Moreover, the genuine reason to believe required for a Terry protective search need not amount or equate to probable cause,[12] which infers that an offense is being committed or has been committed. If the reason amounts to probable cause, the officer can already validly effect an outright warrantless arrest, and his ensuing search will not be limited to a merely protective one for weapons but will be for anything related to the offense being committed or has been committed. Such a search is one incidental to a lawful arrest.

What may be regarded as reasonable suspicion justifying a Terry stop-and-frisk search in this jurisdiction has been illustrated in two cases. In Manalili v. Court of Appeals,[13] specially trained policemen saw Manalili with reddish eyes walking in a wobbly manner characteristic of a person on drugs in a known hangout of drug users. In People v. Solayao,[14] the Court found the drunken actuations of the accused and his companions as justifiable reason to conduct stop-and-frisk on them after considering the following circumstances: (a) the fact that his companions fled when they saw the policemen, and (b) the fact that the peace officers were precisely on an intelligence mission to verify reports that armed persons were roaming in the vicinity. The common thread of these examples is the presence of more than one seemingly innocent activity, which, taken together, warranted a reasonable inference of criminal activity. It was not so in this case.

Worse, the search and confiscation of the shabu by PO1 Cruzin resulted neither from a valid Terry stop-and-frisk nor from a search incidental to a lawful arrest. The petitioner was merely placing a transparent plastic sachet inside her cigarette case in public. PO1 Cruzin himself indicated in his testimony that he did not see or know what the plastic sachet contained before deciding to intrude into her privacy, viz.:

Q - So you were conducting surveillance on this certain alias Ryan, the alleged snatcher, why, is he residing thereat?

A - The informant told us that he is residing there sir.

Q - So what happened to the surveillance?

A - We did not see him in the said place sir.

Q - After that you went home?

A - No sir.

Q - What happened next?

A - We saw Susan Esquillo sir, putting something inside a yellow cigarette case.

Q - Where was this Susan Equillo then, when you came to see her?

A - She was along the street of Bayanihan sir.

Q - By the way, were you in uniform?

A - No sir.

Q - You were in civilian clothes?

A - Yes sir.

Q - So what was this Susan Esquillo doing then?

A - Inserting small plastic sachet inside the yellow cigarette case sir.

Q - When you saw her along Bayanihan St., how far were you from her?

A - About 3 meters sir.

Q - Was Susan Esquillo has (sic) any company?

A - None sir.

Q - So why do you say that you saw her inserting transparent plastic sachet, was she waving the plastic sachet and then inserts it?

A - When I passed by her, I saw her inserting something inside the yellow cigarette case sir.

Q - But you were not sure that that something was transparent plastic sachet containing shabu?

A - Yes sir, but I became suspicious sir.

FISCAL PUTI:

Q - Why did you become suspicious that she was inserting illegal item on the cigarette case?

A - Because when I was about to come near her, she moved differently.

Q - At what point in time did you see Susan Esquillo inserting something inside the cigarette case, while after you saw her or while you were approaching her?

A - When I was approaching her sir.

Q - Now, did you say, she was inserting something inside the cigarette case?

A - Yes sir.[15]

PO1 Cruzin’s further testimony attested to his belated realization of the content as probably shabu only after the petitioner had brought the plastic sachet out of the cigarette case upon his command, to wit:

Q - So why do you have to hold her, was she committing a crime then?

A - Because she was attempting to leave, and if I will not prevent her, she could have left.

Q - So you got hold of her because she was attempting to evade you, is that what you mean?

A - Yes sir.

Q - You did not hold her because he committed a crime?

A - No sir.

Q - So what happened next?

A - That’s it, when she brought out the contents of the cigarette case we learned that it was suspected shabu sir.

Q - Why did she pull out the suspected shabu from the cigarette case?

A - Because I requested her to bring out the contents sir.

Q - So you ordered her to pull out the suspected shabu?

A - Yes sir.

Q - What happened next?

A - After that, I apprise her of her constitutional rights and then we brought her to our office sir.[16]

For purposes of a valid Terry stop-and-frisk search, the test for the existence of reasonable suspicion that a person is engaged in criminal activity is the totality of the circumstances, viewed through the eyes of a reasonable, prudent police officer.[17] Yet, the totality of the circumstances described by PO1 Cruzin did not suffice to engender any reasonable suspicion in his mind. The petitioner’s act, without more, was an innocuous movement, absolutely not one to give rise in the mind of an experienced officer to any belief that she had any weapon concealed about her, or that she was probably committing a crime in the presence of the officer. Neither should her act and the surrounding circumstances engender any reasonable suspicion on the part of the officer that a criminal activity was afoot. We should bear in mind that the Court has frequently struck down the arrest of individuals whose overt acts did not transgress the penal laws, or were wholly innocent.

For instance, in People v. Aminnudin,[18] the Court declared the warrantless arrest of Aminnudin as he was coming down a vessel to be unconstitutional because, to all appearances, such coming down was no less innocent than the coming down of the other disembarking passengers. The Court observed that Aminnudin had not committed, nor was he actually committing or attempting to commit an offense in the presence of the arresting officer, nor was he even acting suspiciously.

Also, in People v. Mengote,[19] Mengote was arrested allegedly because the policemen had seen his eyes darting from side to side and he had been holding his abdomen. The State explained that Mengote’s actions had excited suspicion in the minds of the arresting officers; but the State did not show what their suspicion was all about, for the policemen themselves testified that they had been dispatched to that place where the arrest was effected 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. The State contended that the actual existence of an offense was not necessary as long as Mengote’s acts “created a reasonable suspicion on the part of the arresting officers and induced in them the belief that an offense had been committed and that the accused-appellant had committed it.” But the Court would have none of the State’s justifications, for it quickly asked: “The question is, What offense? 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?,” and followed its queries with the telling observation: “These are certainly not sinister acts. And the setting of the arrest made them less so, if at all. It might have been different if Mengote had been apprehended at an ungodly hour and in a place where he had no reason to be, like a darkened alley at 3 o'clock in the morning. But he was arrested at 11:30 in the morning and in a crowded street shortly after alighting from a passenger jeep with his companion. He was not skulking in the shadows but walking in the clear light of day. There was nothing clandestine about his being on that street at that busy hour in the blaze of the noonday sun.” The Court continued: “On the other hand, there 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. xxx”

In another case, People v. Chua,[20] the record reveals that when Chua arrived at the vicinity of the Thunder Inn Hotel, he merely parked his car along the McArthur Highway, alighted from it, and casually proceeded towards the entrance of the hotel clutching a sealed Zest-O juice box. He did not thereby act in a suspicious manner; hence, for all intents and purposes, he gave no overt manifestation that he had just committed, was actually committing, or was attempting to commit a crime. In that setting, the policemen hurriedly accosted him and later on introduced themselves as officers and arrested him before the alleged drop-off of shabu happened. According to the Court, the probable cause was more imagined than real, for there “could have been no in flagrante delicto arrest preceding the search, in light of the lack of an overt physical act on the part of accused-appellant that he had committed a crime, was committing a crime or was going to commit a crime. As applied to in flagrante delicto arrests, it has been held that “reliable information” alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, is not sufficient to constitute probable cause that would justify an in flagrante delicto arrest.”

If the reasonableness of a Terry stop and search is tested in the light of the totality of the circumstances in each case, a dual inquiry is necessary:- whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances, which justified the interference in the first place.[21]

Here, however, the dual inquiry was not successfully met. The police officers were not even surveying the area of arrest for the presence of drug violators. Neither did they have any informant’s tip that the area was a known place for drug users or drug pushers. Considering that they were not even shown to have been specially trained to determine and identify shabu from a distance, the only acceptable conclusion to be reached is that PO1 Cruzin had no reasonable suspicion about any illegal or criminal activity on the part of the petitioner. In fact, he admitted that only his curiosity had prompted him to approach her in order to “inquire” about the content of the plastic sachet.

PO1 Cruzin’s curiosity did not equate to a reasonable suspicion sufficient to justify his intrusion upon the person of the petitioner, even assuming that he had a sense that the content was white crystalline substance. We all know that shabu was not the only white crystalline substance easily available, for other items very similar in appearance, like tawas or chlorine bleach, could also be packed in a similar plastic sachet. With that, he had absolutely no justification for his intrusion.

Relevantly, it is observed that the majority do not categorically state what the suspicious behavior of the petitioner was.

PO1 Cruzin’s restraining of the petitioner because she attempted to flee as he approached her was not also legitimate or reasonable. Flight alone was no basis for any reasonable suspicion that criminal activity was afoot. Indeed, a person’s flight cannot immediately justify an investigatory stop, for even in high crime areas there are many innocent reasons for flight, including fear of retribution for speaking to officers, unwillingness to appear as witnesses, and fear of being wrongfully apprehended as a guilty party.[22] At any rate, the Court has said in Valdez v. People:[23]

Flight per se is not synonymous with guilt and must not always be attributed to one’s consciousness of guilt. Of persuasion was the Michigan Supreme Court when it ruled in People v. Shabaz that “[f]light alone is not a reliable indicator of guilt without other circumstances because flight alone is inherently ambiguous.” Alone, and under the circumstances of this case, petitioner’s flight lends itself just as easily to an innocent explanation as it does to a nefarious one.

I contend, therefore, that contrary to the CA’s dangerous position the purpose of the Terry dictum – to enable the officer to discover weapons that may be used to harm him or others nearby – forbids any overindulgence in stopping and searching persons who have given no indication of impending criminal activity. Such purpose really delineates a boundary for all stop-and-frisk situations that limits the search to the person’s outer clothing, subject to the officer having a genuine reason, in light of his and the surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. Any search done beyond the boundary cannot be justified as a valid stop-and-frisk under Terry, for it cannot be a limited protective search, or a preventive measure, or an act of self-preservation against a potentially dangerous criminal from harming the officer and others.

Thus, we should exclude the evidence then seized from the petitioner, for that is the only way by which the Court can effectively enforce the guarantee of the Bill of Rights to her right to privacy and personal security expressed under its Section 2, supra. The exclusionary rule is embodied in Section 3 of the Bill of Rights, thus:

Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

The eminent Justice Frankfurter observed in Walder v. United States[24] that the application of the exclusionary rule and the invalidation of the conviction were necessary to prevent the State from profiting from its agents’ stark violation of this important constitutional right, thus:

The Government cannot violate the Fourth Amendment – in the only way in which the Government can do anything, namely through its agents – and use the fruits of such unlawful conduct to secure a conviction. Weeks v. United States (US) supra. Nor can the Government make indirect use of such evidence for its case, Silverthorne Lumber Co. v. United States, 251 US 385, 64 L ed 319, 40 S Ct 182, 24 ALR 1426, or support a conviction on evidence obtained through leads from the unlawfully obtained evidence, cf. Nardone v. United States, 308 US 338, 84 L ed 307, 60 S Ct 266. All these methods are outlawed, and convictions obtained by means of them are invalidated, because they encourage the kind of society that is obnoxious to free men.

Even so, I hasten to clarify that the officer can lawfully seize contraband that should come into view in the course of a justified stop-and-frisk or pat-down search, and the contraband will be admissible in evidence. The justification in such a situation is the plain view doctrine, for, as explained in Minnesota v. Dickerson:[25]

We have already held that police officers, at least under certain circumstances, may seize contraband detected during the lawful execution of a Terry search. In Michigan v. Long, x x x. x x x. (t)he Court then held: “If, while conducting a legitimate Terry search of the interior of the automobile, the officer should, as here, discover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances.” Id., at 1050, 103 S.Ct., at 3481; accord, Sibron, 392 U.S., at 69-70, 88 S.Ct., at 1905-1906 (WHITE, J., concurring); id., at 79, 88 S.Ct., at 1910 (Harlan, J., concurring in result).

The Court in Long justified this latter holding by reference to our cases under the “plain-view” doctrine. See Long, supra, at 1050, 103 S.Ct., at 3481; see also United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 683-684, 83 L.Ed.2d 604 (1985) (upholding plain-view seizure in c ontext *375 of Terry stop). Under that doctrine, if police are lawfully in a position from which they view an object, if its incriminating cha racter **2137 is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. See Horton v. California, 496 U.S. 128, 136-137, 110 S.Ct. 2301, 2307-2308, 110 L.Ed.2d 112 (1990); Texas v. Brown, 460 U.S. 730, 739, 103 S.Ct. 1535, 1541-1542, 75 L.Ed.2d 502 (1983) (plurality opinion). If, however, the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object- i.e., if “its incriminating character [is not] ‘immediately apparent,’” Horton, supra, 496 U.S., at 136, 110 S.Ct., at 2308 - the plain-view doctrine cannot justify its seizure. Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987).

I need to caution, however, that this exception regarding contraband can arise only as the consequence of a validly executed Terry stop-and-frisk, which was not true herein. The petitioner was immediately restrained only for the reason that she attempted to flee when PO1 Cruzin was approaching her, despite her not ostensibly posing any danger to him or to anyone else nearby. She did not even appear to be holding any weapon on her person. Thus, the stoppage did not constitute a valid Terry stop-and-search, and the CA was in gross error to conclude differently. There was also no probable cause to arrest. Truly, the confiscated evidence should be excluded due to its inadmissibility against the petitioner.

I urge that we should not feel obstructed by any unwanted criticisms that applying the exclusionary rule can hamper needed law enforcement. A commentator on stop-and-frisk has aptly observed in that regard:[26]

It is frequently argued that legal technicalities give undue advantage to criminals and that the police must be unshackled in order to fight crime more effectively. Whatever theoretical standards are ideally required, the practical demands of effective criminal investigation require some compromise with theory. It seems obvious that every restriction on police behavior hampers law enforcement. On the other hand, the human animal rebels at the thought of change, especially when such change implies more work, and police have opposed every incursion on their activities since the abolition of the rack and screw. Yet, each of their dire predictions has gone unfulfilled because this myopic view confuses the long-run and the short-run. As the Supreme Court has said:

However much in a particular case insistence upon such rules may appear as a technicality that inures to the benefit of a guilty person, the history of the criminal law proves that tolerance of shortcut methods in law enforcement impairs its enduring effectiveness.[27]

Effectiveness should not be measured in terms of the number of convictions obtained. The ultimate goal of our society is not to punish criminals; rather, it is to preserve liberty. Whenever police act illegally - whatever their purpose - our society suffers. Even if the tasks of the police are made somewhat more difficult by adherence to lawful procedures, it would be a small price to pay for the preservation of individual liberty. If it is conceded that law enforcement is not as effective as it could be, it is fallacious to argue that it would necessarily be improved if short cut methods were approved. As the Mapp decision stated:

Nor can it lightly be assumed that, as a practical matter, adoption of the exclusionary rule fetters law enforcement. Only last year this Court expressly considered that contention and found that “pragmatic evidence of a sort” to the contrary was not wanting. Elkins v. United States . . . . [364 U.S. 206, 218]. The Court noted that:

The federal courts themselves have operated under the exclusionary rule of Weeks for almost half a century; yet it has not been suggested either that the Federal Bureau of Investigation [citing remarks of J. Edgar Hoover quoted in Elkins, supra at 218-19] has thereby been rendered ineffective, or that the administration of criminal justice in the federal courts has thereby been disrupted . . ..” Id., at 218-219

Indeed, it is conceivable that adherence to the Constitution would improve justice. xxx

The right of the petitioner to privacy and to personal security intoned herein at the start and enshrined in the Bill of Rights of the Constitution was violated by the arresting officer. We should not hesitate to rectify the violation, and so we must acquit her.

LUCAS P. BERSAMIN

Associate Justice

[3] RTC Decision, RTC Records, pp. 143-150.

[5] G..R. No. 132042, February 19, 2003, 397 SCRA 674.

[6] See also Valdez v. People (G..R. No. 170180, November 23, 2007, 538 SCRA 611), where the Court held that notwithstanding the accused’s waiver of his right to assail his arrest, the marijuana leaves allegedly taken from the accused during an illegal warrantless search that could not be admitted in evidence against him.

[7] 392 US 1, 88 S. Ct. 1868, 20 L. Ed. 889.

[8] Section 13. Search incident to lawful arrest. – A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant. (12a)

[9] G..R. No. 123595, December 12, 1997, 283 SCRA 159.

[11] 508 U.S. 366, 113 S.Ct. 2130 (June 7, 1993).

[12] Probable cause is understood to merely mean a reasonable ground for belief in the existence of facts warranting the proceedings complained of (Owens vs. Gratezel, 148 Md. 689, 132 A. 265), or an apparent state of facts found to exist upon reasonable inquiry which would induce a reasonably intelligent and prudent man to believe that the accused person had committed the crime (Brand vs. Hinchman, 68 Mich. 590, 36 N.W. 664, 13 Am. St. Rep. 362).

[13] G..R. No. 113447, October 9, 1997, 280 SCRA 400.

[14] G..R. No. 119220, September 20, 1996, 262 SCRA 255.

[17] Bost v. State, 406 Md. 341, 958 A.2d 356 (2008).

[18] G..R. No. L-74869, July 6, 1988, 163 SCRA 402.

[19] G..R. No. 87059, June 22, 1992, 210 SCRA 174.

[20] G..R. Nos. 136066-67, February 4, 2003, 396 SCRA 657.

[21] State v. Roe, 2004 WL 417511 (Idaho Ct. App. 2004).

[22] State v. Nicholson, 188 S.W.3d 649 (Tenn. 2006).

[26] Prof. Marcus Schoenfeld, The “Stop And Frisk” Law Is Unconstitutional, Syracuse Law Review, Volume17, No. 4, Summer, 1966, pp. 633-634 (Note: Professor Schoenfeld taught law at the Cleveland-Marshall Law School of Baldwin-Wallace College; and at the Villanova University School of Law).

[27] Citing Miller v. US, 357 US 301, 313.