764 Phil. 627
PERLAS-BERNABE, J.:
That on or about the 30th day of July 2003, in the City of Mandaluyong, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, not having been lawfully authorized to possess any dangerous drugs, did then and there willfully, unlawfully and feloniously and knowingly have in his possession, custody and control Two (2) heat-sealed transparent plastic sachet (sic) each containing 0.15 gram (sic) and 0.28 gram (sic) of white crystalline substance with a total of 0.43 grams which was found positive to the test for Methamphetamine Hydrochloride commonly known as "shabu", a dangerous drug.According to the prosecution, at around 10 o'clock in the evening of July 30, 2003, Agent Eduardo Radan (Agent Radan) of the NARCOTICS group and PO3 Bienvy Calag II (PO3 Calag) were aboard a motorcycle, patrolling the area while on their way to visit a friend at Private Road, Barangay Hulo, Mandaluyong City. Cruising at a speed of 30 kilometers per hour along Private Road, they spotted, at a distance of about 10 meters, two (2) men - later identified as Comerciante and a certain Erick Dasilla[7] (Dasilla) - standing and showing "improper and unpleasant movements," with one of them handing plastic sachets to the other. Thinking that the sachets may contain shabu, they immediately stopped and approached Comerciante and Dasilla. At a distance of around five (5) meters, PO3 Calag introduced himself as a police officer, arrested Comerciante and Dasilla, and confiscated two (2) plastic sachets containing white crystalline substance from them. A laboratory examination later confirmed that said sachets contained methamphetamine hydrochloride or shabu.[8]
CONTRARY TO LAW.[6]
SEC. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person:The aforementioned provision provides three (3) instances when a warrantless arrest may be lawfully effected: (a) arrest of a suspect in flagrante delicto; (b) arrest of a suspect where, based on personal knowledge of the arresting officer, there is probable cause that said suspect was the perpetrator of a crime which had just been committed; (c) arrest of a prisoner who has escaped from custody serving final judgment or temporarily confined during the pendency of his case or has escaped while being transferred from one confinement to another.[26]
(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 just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with Section 7 of Rule 112.
On the basis of such testimony, the Court finds it highly implausible that PO3 Calag, even assuming that he has perfect vision, would be able to identify with reasonable accuracy especially from a distance of around 10 meters, and while aboard a motorcycle cruising at a speed of 30 kilometers per hour miniscule amounts of white crystalline substance inside two (2) very small plastic sachets held by Comerciante. The Court also notes that no other overt act could be properly attributed to Comerciante as to rouse suspicion in the mind of PO3 Calag that the former had just committed, was committing, or was about to commit a crime. Verily, the acts of standing around with a companion and handing over something to the latter cannot in any way be considered criminal acts. In fact, even if Comerciante and his companion were showing "improper and unpleasant movements" as put by PO3 Calag, the same would not have been sufficient in order to effect a lawful warrantless arrest under Section 5 (a), Rule 113 of the Revised Rules on Criminal Procedure.[31] That his reasonable suspicion bolstered by (a) the fact that he had seen his fellow officers arrest persons in possession of shabu; and (b) his trainings and seminars on illegal drugs when he was still assigned in the province are insufficient to create a conclusion that what he purportedly saw in Comerciante was indeed shabu.[32]
Pros. Silao: Q: Now on July 30, 2003 around 10:00 o'clock in the evening, kindly tell the court where were you? A: We were then conducting our patrol on a motorbike ma'am. x x x x Q: And who were with you while you were patrolling? A: Eduardo Radan, Ma'am. Q: And who is this Eduardo Radan? A: He is an agent of the Narcotics Group, ma'am. Q: While you were along Private Road, Hulo, Mandaluyong City, what unusual incident that happened if any? A: We spotted somebody who was then as if handing a plastic sachet to someone. x x x x Q: Now how far were you when you saw this incident from these two male persons you already identified? A: About ten (10) meters away ma'am. Q: What were their positions in relation to you when you saw them in that particular act? A: They were quite facing me then. Q: What was the speed of your motorcycle when you were traversing this Private Road, Hulo, Mandaluyong City? A: About thirty (30) kilometers per hour, ma'am. Q: And who was driving the motorcycle? A: Eduardo Radan, ma'am. Q: When you spotted them as if handing something to each other, what did you do? A: We stopped ma'am. Q: And how far were you from them when you stopped, more or less? A: We passed by them for a short distance before we stopped ma'am. Q: And after you passed by them and you said you stopped, what was the reaction of these two male persons? A: They were surprised, ma'am. x x x x Q: And what was their reaction when you said you introduced yourself as police officer? A: They were surprised. Q: When yon say "nabigla" what was their reaction that made you say that they were surprised? A: They were stunned. Q: After they were stunned, what did you do next, police officer? A: I arrested them, ma'am. I invited them. Q: What did you say to them? How did you invite them? In short, napakasimple lang ng tanong ko sa yo eh. Did you say anything? Court: Mr. Witness, stop making unnecessary movements, just listen. Pros. Silao: Are you fit to testify? May sakit ka ba o wala? Witness: Wala po. Pros. Silao: Eh, bakit di ka makapagsalita? Court: You keep touching your eyes. Just relax. Answer the question, ano sinabi mo sa kanila? Pros. Silao: Are you fit to testify? Wala ka bang sakit? Witness: Wala po. x x x x Q: From what portion of his body, I am referring to Alvin Comerciante did you recover the plastic sachet? A: From his hand ma'am. Q: Left or right hand? Pros. Silao: You cannot recall? Hindi mo matandaan. Sabihin mo kung hindi mo matandaan, no problem. Kaliwa, kanan or you cannot recall?[30] (Emphases and underscoring supplied)
"Stop and frisk" searches (sometimes referred to as Terry searches) are necessary for law enforcement. That is, law enforcers should be given the legal arsenal to prevent the commission of offenses. However, this should be balanced with the need to protect the privacy of citizens in accordance with Article III, Section 2 of the Constitution.In this case, the Court reiterates that Comerciante's acts of standing around with a companion and handing over something to the latter do not constitute criminal acts. These circumstances are not enough to create a reasonable inference of criminal activity which would constitute a "genuine reason" for PO3 Calag to conduct a "stop and frisk" search on the former. In this light, the "stop and frisk" search made on Comerciante should be deemed unlawful.
The balance lies in the concept of "suspiciousness" present where the police officer finds himself or herself in. This may be undoubtedly based on the experience of the police officer. Experienced police officers have personal experience dealing with criminals and criminal behavior. Hence, they should have the ability to discern - based on facts that they themselves observe - whether an individual is acting in a suspicious manner. Clearly, a basic criterion would be that the police officer, with his or her personal knowledge, must observe the facts leading to the suspicion of an illicit act.xxx xxx xxx
Normally, "stop and frisk" searches do not give the law enforcer an opportunity to confer with a judge to determine probable cause. In Posadas v. Court of Appeals, one of the earliest cases adopting the "stop and frisk" doctrine in Philippine jurisprudence, this court approximated the suspicious circumstances as probable cause:The probable cause is that when the petitioner acted suspiciously and attempted to flee with the buri bag there was a probable cause that he was concealing something illegal in the bag and it was the right and duty of the police officers to inspect the same.For warrantless searches, probable cause was defined as a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person accused is guilty of the offense with which he is charged.
Malacat v. Court of Appeals clarifies the requirement further. It does not have to be probable cause, but it cannot be mere suspicion. It has to be a genuine reason to serve the purposes of the "stop and frisk" exception: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.In his dissent for Esquillo v. People, Justice Bersamin reminds us that police officers must not rely on a single suspicious circumstance. There should be "presence of more than one seemingly innocent activity, which, taken together, warranted a reasonable inference of criminal activity." The Constitution prohibits "unreasonable searches and seizures." Certainly, reliance on only one suspicious circumstance or none at all will not result in a reasonable search.[35] (Emphases and underscoring supplied)
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.[22] Section 3 (2), Article III of the Constitution states:
Section 3. x x x x[23] See Ambre v. People, 692 Phil. 681, 693 (2012).
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.