FACTS:

In response to reports of bomb threats, Rodolfo Yu, was on foot patrol with other police officers at Plaza Miranda. They chanced upon two groups of Muslim-looking men near the Mercury Drug Store. These men were acting suspiciously with their eyes moving very fast. Yu and his companions observed both groups for about thirty minutes.

The police officers then approached one group of men, who then fled in different directions. As the policemen gave chase, Yu caught up with and apprehended petitioner. Upon searching petitioner, a fragmentation grenade was found tucked inside petitioners front waist line.

Yu did not issue any receipt for the grenade he allegedly recovered from petitioner.

Josefino G. Serapio, the investigating officer, conducted the inquest of the two suspects, informing them of their rights to remain silent and to be assisted by competent and independent counsel. Despite Serapio‘s advice, petitioner and Casan manifested their willingness to answer questions even without the assistance of a lawyer. Serapio then took petitioners uncounselled confession, there being no PAO lawyer available, wherein petitioner admitted possession of the grenade.

In its decision, the trial court thus found petitioner guilty of the crime of illegal possession of explosives under Section 3 of P.D. No. 1866.

In his appeal to the CA, petitioner argued that the warrantless arrest was invalid due to absence of any of the conditions provided for in Section 5 of Rule 113 of the Rules of Court, citing People vs. Mengote. As such, the search was illegal, and the hand grenade seized, inadmissible in evidence.

The CA affirmed the trial court’s decision.

ISSUE:

WHETHER THE WARRANTLESS ARREST OF PETITIONER WAS VALID AND LEGAL.

 

RULING:

The Court convinced that the prosecution failed to establish petitioner’s guilt with moral certainty.

First, serious doubt surrounds the story of police officer Yu that a grenade was found in and seized from petitioner’s possession. Notably, Yu did not identify, in court, the grenade he allegedly seized.

According to him, he turned it over to his commander after putting an X mark at its bottom; however, the commander was not presented to corroborate this claim.

Yu did not, and was not made to, identify the grenade examined by Ramilo, the police officer who conducted the examination, and the latter did not claim that the grenade he examined was that seized from petitioner. Plainly, the law enforcement authorities failed to safeguard and preserve the chain of evidence so crucial in cases such as these.

Second, if indeed petitioner had a grenade with him, then considering that Yu and his three fellow officers were in uniform and therefore easily cognizable as police officers, it was then unnatural and against common experience that petitioner simply stood there in proximity to the police officers. Note that Yu observed petitioner for thirty minutes and must have been close enough to petitioner in order to discern petitioner’s eyes moving very fast.

Finally, even assuming that petitioner admitted possession of the grenade during his custodial investigation by police officer Serapio, such admission was inadmissible in evidence for it was taken in palpable violation of Section 12(1) and (3) of Article III of the Constitution, which provide as follows:

SEC. 12 (1). Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

x x x

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

Serapio conducted the custodial investigation on petitioner the day following his arrest. No lawyer was present and Serapio could not have requested a lawyer to assist petitioner as no PAO lawyer was then available. Thus, even if petitioner consented to the investigation and waived his rights to remain silent and to counsel, the waiver was invalid as it was not in writing, neither was it executed in the presence of counsel.

Even granting ex gratia that petitioner was in possession of a grenade, the arrest and search of petitioner were invalid, as will be discussed below.

The general rule as regards arrests, searches and seizures is that a warrant is needed in order to validly effect the same. The Constitutional prohibition against unreasonable arrests, searches and seizures refers to those effected without a validly issued warrant, subject to certain exceptions. As regards valid warrantless arrests, these are found in Section 5, Rule 113 of the Rules of Court, which reads, in part:

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 has escaped ***

A warrantless arrest under the circumstances contemplated under Section 5(a) has been denominated as one “in flagrante delicto,” while that under Section 5(b) has been described as a “hot pursuit” arrest.

Turning to valid warrantless searches, they are limited to the following: (1) customs searches; (2) search of moving vehicles; (3) seizure of evidence in plain view; (4) consent searches; (5) a search incidental to a lawful arrest; and (6) a “stop and frisk.”

In the instant petition, the trial court validated the warrantless search as a stop and frisk with the seizure of the grenade from the accused [as] an appropriate incident to his arrest, hence necessitating a brief discussion on the nature of these exceptions to the warrant requirement.

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 a lawful 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.

Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in light of the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on the part of petitioner, indicating that a crime had just been committed, was being committed or was going to be committed.

Having thus shown the invalidity of the warrantless arrest in this case, plainly, the search conducted on petitioner could not have been one incidental to a lawful arrest.

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.

Here, here are at least three (3) reasons why the stop-and-frisk was invalid:

As to Yus claim that petitioner was a member of the group which attempted to bomb Plaza Miranda two days earlier, this claim is neither supported by any police report or record nor corroborated by any other police officer who allegedly chased that group.

Also, there was nothing in petitioner’s behavior or conduct which could have reasonably elicited even mere suspicion other than that his eyes were moving very fast, an observation which leaves us incredulous since Yu and his teammates were nowhere near petitioner and it was already 6:30 p.m., thus presumably dusk.

Lastly, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was discovered inside the front waistline of petitioner, and from all indications as to the distance between Yu and petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not have been visible to Yu. In fact, as noted by the trial court:

When the policemen approached the accused and his companions, they were not yet aware that a hand grenade was tucked inside his waistline. They did not see any bulging object in [sic] his person.

What is unequivocal then in this case are blatant violations of petitioners rights solemnly guaranteed in Sections 2 and 12(1) of Article III of the Constitution.

Petitioner SAMMY MALACAT y MANDAR was ACQUITTED.