460 Phil. 146
SANDOVAL-GUTIERREZ, J.:
"That on or about the 12th day of April, 1994, in the City of Bacolod, Philippines, and within the jurisdiction of this Honorable Court, the herein accused, not being lawfully authorized to possess, prepare, administer or otherwise use any prohibited drug, did then and there willfully, unlawfully and feloniously have in his possession and under his custody and control 1.9 kilos or 1,900 grams, more or less, of marijuana which is a prohibited drug, in violation of the aforementioned laws.Upon arraignment, appellant entered a plea of not guilty. Thereafter, trial followed.
"Acts contrary to law."
"WHEREFORE, finding the accused HEDISHI SUZUKI guilty beyond reasonable doubt of the offense charged, he is hereby sentenced to suffer the maximum penalty of death, to pay a fine of Ten Million Pesos (P10,000,000.00), and to pay the costs.Hence the instant mandatory review.
"Pursuant to Section 20, Article IV of Republic Act No. 6425, as amended by Section 17 of Republic Act No. 7659, let the 1,547.07 grams of dried marijuana fruiting tops, subject matter of this case, be confiscated and forfeited in favor of the government and be turned over to the Dangerous Drugs Board Custodian, NBI, to be disposed according to law.
"SO ORDERED."
Considering that the above assigned errors are interrelated, they will be discussed jointly."I
THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE GOVERNMENT AGENTS HAD THE LEGAL AUTHORITY WHEN THEY OPENED AND SEARCHED THE SMALL CARTON IN QUESTION.
II
THE TRIAL COURT GRAVELY ERRED IN FINDING THAT SUFFICIENT PROBABLE CAUSE EXISTS FOR THE OPENING AND SEARCH OF THE SUBJECT CARTON AND IN DECLARING LEGAL AND VALID THE SEIZURE OF SAID CARTON AND THE SUBSEQUENT ARREST OF THE APPELLANT.
III
THE TRIAL COURT GRAVELY ERRED IN ADMITTING IN EVIDENCE THE MARIJUANA CONTENTS OF THE SUBJECT CARTON AGAINST THE APPELLANT.
IV
THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE SEARCH ON THE CARTON IN QUESTION WAS INCIDENTAL TO A LAWFUL ARREST.
V
THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE SEARCH ON THE SUBJECT CARTON WAS MADE UNDER THE EXCEPTION OF SEIZURE OF EVIDENCE IN PLAIN VIEW.
VI
THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE ARREST OF THE APPELLANT WAS VALID AS HE WAS CAUGHT IN FLAGRANTE DELICTO POSSESSING MARIJUANA.
VII
THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THERE WAS UNQUALIFIED, VOLUNTARY AND AUTHORITATIVE CONSENT GIVEN BY THE APPELLANT TO THE OPENING OF THE CARTON.
VIII
ON THE ASSUMPTION EX GRATIA ARGUMENTI THAT THE APPELLANT WAS CAUGHT IN POSSESSION OF MARIJUANA, THE TRIAL COURT GRAVELY ERRED IN CONVICTING HIM, FOR THE PROSECUTION FAILED TO PROVE THE NEGATIVE ELEMENT OF THE OFFENSE.
IX
ON THE ASSUMPTION EX GRATIA ARGUMENTI THAT HE WAS CAUGHT IN PHYSICAL POSSESSION OF THE CARTON IN QUESTION (CONTAINING MARIJUANA), THE TRIAL COURT GRAVELY ERRED IN FINDING THAT APPELLANT INTENDED TO POSSESS SAID PACKS OF MARIJUANA.
X
THE TRIAL COURT GRAVELY ERRED IN FINDING THAT APPELLANT'S PETITION TO BE RELEASED ON BAIL CONSTITUTES WAIVER OF ANY IRREGULARITY ATTENDING HIS ARREST AND ESTOPS HIM FROM QUESTIONING ITS VALIDITY.
XI
THE TRIAL COURT GRAVELY ERRED IN NOT GIVING DUE WEIGHT, CONSIDERATION AND CREDIT TO THE TESTIMONY OF THE APPELLANT AND IN DECLARING THE SAME SELF-SERVING AND NOT AMPLY PROVEN.
XII
THE TRIAL COURT GRAVELY ERRED IN DISREGARDING SUBSTANTIAL CONTRADICTIONS IN THE EVIDENCE FOR THE PROSECUTION WHICH CREATE REASONABLE DOUBT ON THE GUILT OF THE APPELLANT.
XIII
THE TRIAL COURT GRAVELY ERRED IN GOING BEYOND THE EVIDENCE PRESENTED BY THE PROSECUTION IN SUPPORT OF ITS DECISION CONVICTING APPELLANT.
XIV
THE TRIAL COURT GRAVELY ERRED IN SENTENCING APPELLANT TO THE MAXIMUM PENALTY OF DEATH AND IMPOSING A FINE OF TEN MILLION PESOS.
XV
THE TRIAL COURT GRAVELY ERRED IN HOLDING THAT THE GUILT OF THE APPELLANT WAS PROVEN BY THE PROSECUTION BEYOND REASONABLE DOUBT AND IN NOT ACQUITTING HIM."
"SECTION 8. Aircraft companies which operate as public utilities or operators of aircraft which are for hire are authorized to open and investigate suspicious packages and cargoes in the presence of the owner or shipper, or his authorized representatives if present, in order to help the authorities in the enforcement of the provisions of this Act: Provided, That if the owner, shipper or his representative refuses to have the same opened and inspected, the airline or air carrier is authorized to refuse the loading thereof."In line with the afore-cited law, the trial court correctly upheld the PASCOM's authority to open packages and cargoes, thus:
"This Court does not subscribe to the contention of the accused. The Police Aviation Security Command (PASCOM) is the implementing arm of the National Action Committee on Anti-Hijacking (NACAH), which is a creation of Presidential Letter of Instruction (LOI) No. 399, dated April 28, 1976.This is not the first time we recognize a search conducted pursuant to routine airport security procedure as an exception to the proscription against warrantless searches. In People vs. Canton,[6] and People vs. Johnson,[7] we validated the search conducted on the departing passengers and the consequent seizure of the shabu found in their persons, thus:
"On February 18, 1978, a Memorandum of Understanding among the Secretary of National Defense, the Secretary of Public Works, Transportation and Communication, the Secretary of Justice, the Director General, National Intelligence and Security Authority and the Secretary of Finance was signed. The purpose was to establish a working arrangement among cognizant agencies, set up guidelines and procedures for the security of the airport complex throughout the Philippines particularly handling, coordination and disposition of hijacking and other criminal incidents that may occur thereat (PAFM 3-9, page 1-3).`Under the said Memorandum of Understanding the then AVSECOM (now PASCOM) shall have the following functions and responsibilities:"The prosecution correctly argued that the PASCOM established a system of checkpoint at the pre-departure area of the Bacolod Airport to quickly inspect or screen persons or hand-carried baggages for illegal items pursuant to said Memorandum of Agreement, which in turn derived its life from LOI 399. In short, the setting up of checkpoint at the Bacolod Airport on April 12, 1994 does not have only jurisprudential basis (Valmonte vs. De Villa, et al., G.R. No. 83288, September 29, 1989, 178 SCRA 211, more popularly known as the `checkpoints cases') but also statutory basis.
- Secure all airports against offensive and terroristic acts that threaten civil aviation;
- Undertake aircraft anti-hijacking operations;
- Exercise operational control and supervision over all agencies involved in airport security operations;
- Take all necessary preventive measures to maintain peace and order, and provide other pertinent public safety services within the airports;
x x x
`One of its guidelines before the passenger can enter the sanitized area (pre-departure area) is to check the hand-carried luggage and personal effects of passengers (PAFM 3-9, page 2-3).
`Passengers are allowed one hand-carried bag or attaché case with the following limitation:`Based upon the Memorandum of Understanding, pursuant to President LOI 399, in relation to R.A. 6235, the PASCOM had the legal authority to be at the Bacolod Airport, Bacolod City and to inspect luggages or hand-carried bags.
- x x x x x x
- x x x x x x
- It can be readily opened for inspection (PAFM 3-9, page 2-4).
`Under DOC 8973/3, Security Manual for Safeguarding Civil Aviation against Acts of Unlawful Interference, particularly paragraph 3.6.4 `when x-ray inspection is not possible or when the x-ray image of a bag gives rise to suspicion, x x x, a manual search must be carried out' (Memorandum of the Prosecution, pp. 15-16; underscoring supplied).'
"Moreover, to sustain the stand of the accused exclusively limiting the authority to open and search `suspicious' luggages would result to absurdity. It would deprive law enforcers of their authority to perform their duty of maintaining order, preserving peace, protecting life and property and other police works such as crime detection, while within the airport premises. The construction given by the accused conveniently omitted the phrase found in Section 8 of Republic Act No. 6235 which reads `in order to help the authorities in the enforcement of the provisions of this Act.' The word `authorities' evidently refers to police officers and other law enforcers such as the PASCOM officers. It follows that in allowing or authorizing aircraft companies which operate as public utilities or operators of aircraft which are for hire, to open and investigate suspicious packages and seizures, the authors of the law does not disallow or prohibit law enforcement agencies of the government from assisting or conducting the opening and investigation of suspicious packages and cargoes. Otherwise, they will be remiss in their sworn duty of protecting the public in general and more particularly those in the aviation industry. x x x. It becomes crystal-clear that the PASCOM officers and personnel had the legal authority when they opened and investigated the box in the presence of the accused and his counsel."
"Persons may lose the protection of the search and seizure clause by exposure of their persons or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to recognize as reasonable. Such recognition is implicit in airport security procedures. With increased concern over airplane hijacking and terrorism has come increased security at the nation's airports. Passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence of suspicious objects, physical searches are conducted to determine what the objects are. There is little question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacy expectations associated with airline travel. Indeed, travelers are often notified through airport public address systems, signs and notices in their airline tickets that they are subject to search and, if any prohibited materials or substances are found, such would be subject to seizure. These announcements place passengers on notice that ordinary constitutional protections against warrantless searches and seizures do not apply to routine airport procedures." (Underscoring ours)Clearly, the PASCOM agents have the right under the law to conduct search of prohibited materials or substances. To simply refuse passengers carrying suspected illegal items to enter the pre-departure area, as claimed by appellant, is to deprive the authorities of their duty to conduct search, thus sanctioning impotence and ineffectivity of the law enforcers, to the detriment of society.[8]
That appellant gave his consent when PO1 Casugod asked him to open the box was confirmed by SPO1 Linda and PO3 Poyugao.[11] As succinctly found by the trial court, appellant cannot deny that he consented by feigning ignorance of the English language, thus:
"Q And when the said carton box was passed for the second time thru the walk-through machine it indicated this metallic element by flashing a red light, is that correct? A Yes, sir. Q And because of that, what did you do? A Rhodelin Poyugao put the box on top of the inspection table. Q What happened then? A And then our non-uniformed personnel, Mr. Donato Barnezo, asked the passenger Mr. Hedishi Suzuki, saying, `kindly open your box for inspection'. Q What happened after he asked the accused to open the box? A Mr. Hedishi Suzuki refused to open, sir. He signaled `no, no'. Q What happened then? A At that juncture, sir. I advised the said passenger, Mr. Hedishi Suzuki: `Very sorry, sir, we need to open your luggage because it indicated a red light'. Q When you say open the luggage you are referring to the box? A Referring to the small carton marked Bongbong Piaya. Q What happened then? A Mr. Hedishi Suzuki tried to get outside of the pre-departure area instead of opening the box. Q Where did Mr. Suzuki go if he went away? A Before he could get out of the door of the pre-departure area I called his attention to come back. Q Did he come back? A He came back and I explained to him again, sir, that we are very sorry but we need to open your small carton marked Bongbong Piaya. I told him, `I am very sorry, sir, but we need to open your small carton marked Bongbong Piaya'. Q And what did Mr. Suzuki do? A Mr. Suzuki answered me, `open'. Q What did you do? A I said `kindly open your carton' and he repeated, `open'. Q For the second time? A Yes, sir. Q What did you do then because he said `open'? A I explained to him, sir, and I asked him again, `sir, I am going to open this' and he told me `you open'. Q Then, what did you do? A I got hold of the carton and opened it by means of cutting the masking tape that bound both ends of the carton. Q And what did you find inside the said box? A When I opened the box, sir, I found out that it contained suspected dried marijuana fruiting tops wrapped in an aluminum foil, sir, and transparent cellophane. x x x."[10]
"Accused through counsel would want this Court to believe that the opening of the carton containing marijuana fruiting tops was without the consent of the accused. The defense relied on the alleged inability of the accused to understand nor speak the English language because he is a Japanese national. It made capital on the presence of Japanese interpreters, Tsuyushi Tsuchida and Hideo Agarie, who assisted during the trial.It is axiomatic that a reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case.[12] Given the circumstances obtaining here, we find the search conducted by the airport authorities reasonable and, therefore, not violative of his constitutional rights. Hence, when the search of the box of piaya revealed several marijuana fruiting tops, appellant is deemed to have been caught in flagrante delicto, justifying his arrest even without a warrant under Section 5(a), Rule 113 of the Rules of Criminal Procedure.[13] The packs of marijuana obtained in the course of such valid search are thus admissible as evidence against appellant.[14]
"The Court has no doubt in the positive testimonies of the prosecution witnesses and their categorical declaration that accused Hedishi Suzuki gave his consent not only nodding his head but also by saying `Open. Open. Open.' There was even a `third-party consent' given by his Japanese companion Takeshi Koketsu.
"The allegation of the accused that he does not understand English is indeed incredible to believe. As aptly observed by Assistant City Prosecutor Rafael Guanco, the trial prosecutor, `the accused might not be able to speak straight English yet he might understand English' (Memorandum of the Prosecution, page 21). The prosecution witnesses categorically declared that accused Hedishi Suzuki was speaking English during the airport encounter with the PASCOM and NARCOM operatives and while being investigated at the PASCOM Office. While it may be true that Lourdes Linsangan participated on some occasions, her participation merely facilitated the conversation.
"The Court cannot believe accused's protestation of ignorance of the English language. There are several indications that accused understand the English language. It may be noted that in filing a motion to terminate the legal services of Atty. Nicanor Villarosa, it appeared that accused caused its preparation or filing without the assistance of a lawyer (Motion To Terminate Services of Counsel, page 53, expediente). The accused testified that his wife is proficient in English. Accused was able to play games in the casino, the night before the airport incident. He was able to give direction to the driver from the motel to the airport. He has traveled to the Philippines about ten (10) times. He claims to be an owner and manager of a company where some clients or customers are non-Japanese such as Germans and Americans. During the trial accused appeared to be an intelligent witness and this Court has keenly observed that accused had shown eagerness and readiness to answer the questions propounded in the English language even before the Japanese translation. Above all, accused answered in the affirmative when queried by the Court whether he was able to attend English classes while in college. In short, the Court was literally taken for a ride when initially made to believe that the accused could not read, speak and understand the English language."
(a ) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;[14] People vs. del Mundo, G.R. No. 138929, October 2, 2001; Co vs. Court of Appeals, G.R. No. 123943, March 14, 2001.
x x x"