On May 19, 2003, a confidential agent of the police transacted through cellular phone with appellant for the purchase of shabu. The agent later reported the transaction to the police authorities who immediately formed a team composed of member of the Philippine Drug Enforcement Agency (PDEA), the Intelligence group of the Philippine Army and the local police force to apprehend the appellant. The agent gave the police appellant’s name, together with his physical description. He also assured them that appellant would arrive in Baler, Aurora the following day.
The next day, appellant called up the agent and informed him that he was on board a Genesis bus and would arrive in Baler, Aurora, anytime of the day wearing a red and white striped T-shirt. The team members then posted themselves along the national highway in Baler, Aurora. At around 3:00 p.m. of the same day, a Genesis bus arrived in Baler. When appellant alighted from the bus, the confidential agent pointed to him as the person he transacted with earlier. Having alighted from the bus, appellant stood near the highway and waited for a tricycle that would bring him to his final destination. As appellant was about to board a tricycle, the team approached him and invited him to the police station on suspicion of carrying shabu. Appellant immediately denied the accusation, but as he pulled out his hands from his pants’ pocket, a white envelope slipped therefrom which, when opened, yielded a small sachet containing the suspected drug.
The team then brought appellant to the police station for investigation. The confiscated specimen was turned over to Police Inspector Rogelio Sarenas De Vera who marked it with his initials and with appellant’s name. The field test and laboratory examinations on the contents of the confiscated sachet yielded positive results for methamphetamine hydrochloride.
Appellant was charged in two separate Informations, one for violation of Section 5 of R.A. 9165, for transporting or delivering; and the second, of Section 11 of the same law for possessing, dangerous drugs.
Appellant was convicted of Violation of Section 5, but acquitted him of the charge of Violation of Section 11, Article II, R.A. 9165. On appeal, the CA affirmed the RTC decision.
Hence, the present appeal.
Whether or not the confiscated sachet was the fruit of the poisonous tree.
The appeal is meritorious.
Appellant focuses his appeal on the validity of his arrest and the search and seizure of the sachet of shabu and, consequently, the admissibility of the sachet. It is noteworthy that although the circumstances of his arrest were briefly discussed by the RTC, the validity of the arrest and search and the admissibility of the evidence against appellant were not squarely raised by the latter and thus, were not ruled upon by the trial and appellate courts.
It is well-settled that an appeal in a criminal case opens the whole case for review. This Court is clothed with ample authority to review matters, even those not raised on appeal, if we find them necessary in arriving at a just disposition of the case. Every circumstance in favor of the accused shall be considered. This is in keeping with the constitutional mandate that every accused shall be presumed innocent unless his guilt is proven beyond reasonable doubt.
After a thorough review of the records of the case and for reasons that will be discussed below, we find that appellant can no longer question the validity of his arrest, but the sachet of shabu seized from him during the warrantless search is inadmissible in evidence against him.
The records show that appellant never objected to the irregularity of his arrest before his arraignment. In fact, this is the first time that he raises the issue. Considering this lapse, coupled with his active participation in the trial of the case, we must abide with jurisprudence which dictates that appellant, having voluntarily submitted to the jurisdiction of the trial court, is deemed to have waived his right to question the validity of his arrest, thus curing whatever defect may have attended his arrest. The legality of the arrest affects only the jurisdiction of the court over his person. Appellant’s warrantless arrest therefore cannot, in itself, be the basis of his acquittal.
The 1987 Constitution states that a search and consequent seizure must be carried out with a judicial warrant; otherwise, it becomes unreasonable and any evidence obtained therefrom shall be inadmissible for any purpose in any proceeding.
Said proscription, however, admits of exceptions, namely:
1. Warrantless search incidental to a lawful arrest;
2. Search of evidence in “plain view;”
3. Search of a moving vehicle;
4. Consented warrantless search;
5. Customs search;
6. Stop and Frisk; and
7. Exigent and emergency circumstances.
What constitutes a reasonable or unreasonable warrantless search or seizure is purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured.
Recent jurisprudence holds that in searches incident to a lawful arrest, the arrest must precede the search; generally, the process cannot be reversed. Nevertheless, a search substantially contemporaneous with an arrest can precede the arrest if the police have probable cause to make the arrest at the outset of the search. Thus, given the factual milieu of the case, we have to determine whether the police officers had probable cause to arrest appellant. Although probable cause eludes exact and concrete definition, it ordinarily signifies 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.
Clearly, what prompted the police to apprehend appellant, even without a warrant, was the tip given by the informant that appellant would arrive in Baler, Aurora carrying shabu. This circumstance gives rise to another question: whether that information, by itself, is sufficient probable cause to effect a valid warrantless arrest.
The long standing rule in this jurisdiction is that “reliable information” alone is not sufficient to justify a warrantless arrest. The rule requires, in addition, that the accused perform some overt act that would indicate that he has committed, is actually committing, or is attempting to commit an offense. We find no cogent reason to depart from this well-established doctrine.
Appellant herein was not committing a crime in the presence of the police officers. Neither did the arresting officers have personal knowledge of facts indicating that the person to be arrested had committed, was committing, or about to commit an offense. At the time of the arrest, appellant had just alighted from the Genesis bus and was waiting for a tricycle. Appellant was not acting in any suspicious manner that would engender a reasonable ground for the police officers to suspect and conclude that he was committing or intending to commit a crime. Were it not for the information given by the informant, appellant would not have been apprehended and no search would have been made, and consequently, the sachet of shabu would not have been confiscated.
Obviously, this is an instance of seizure of the “fruit of the poisonous tree,” hence, the confiscated item is inadmissible in evidence consonant with Article III, Section 3(2) of the 1987 Constitution, “any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.”
Without the confiscated shabu, appellant’s conviction cannot be sustained based on the remaining evidence.
Appellant Jack Raquero Racho is ACQUITTED for insufficiency of evidence.