A waiver of an illegal arrest  is not a waiver of an illegal search.

FACTS:

Petitioner Danilo Villanueva was charged with violation of Section 11, Article II of Republic Act (R.A.) No. 9165 or The Comprehensive Dangerous Drugs Act of 2002.

A Complaint was filed by Brian Resco against Danilo Villanueva for allegedly shooting the former along C-3 Road, Navotas City. After recording the incident in the police blotter, four police officers, together with Resco, proceeded to the house of Villanueva. They informed Villanueva about the Complaint lodged against him and invited him to the police station where he was subjected to a body search and, in the process, a plastic sachet of shabu was recovered from the left pocket of his pants.

ISSUE:

Whether or not the warrantless arrest and search was legal.

Section 5, Rule 113 of the Revised Rules of Criminal Procedure, lays down the basic rules on lawful warrantless arrests either by a peace officer or a private person, as follows:

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 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.

The circumstances that transpired between accused-appellant and the arresting officer show none of the above that would make the warrantless arrest lawful. Nevertheless, records reveal that accused-appellant never objected to the irregularity of his arrest before his arraignment. He pleaded not guilty upon arraignment. He actively participated in the trial of the case. Thus, he is considered as one who had properly and voluntarily submitted himself to the jurisdiction of the trial court and waived his right to question the validity of his arrest.

The warrantless search conducted is not among those allowed by law.

A waiver of an illegal arrest, however, is not a waiver of an illegal search. Records have established that both the arrest and the search were made without a warrant. While the accused has already waived his right to contest the legality of his arrest, he is not deemed to have equally waived his right to contest the legality of the search.

Jurisprudence is replete with pronouncements on when a warrantless search can be conducted. 

These searches include:

(1) search of a moving vehicle;

(2) seizure in plain view;

(3) customs search;

(4) waiver or consented search;

(5) stop-and-frisk situation;

(6) search incidental to a lawful arrest and

(7) exigent and emergency circumstance.

The search made was not among the enumerated instances. Certainly, it was not of a moving vehicle, a customs search, or a search incidental to a lawful arrest. There could not have been a seizure in plain view as the seized item was allegedly found inside the left pocket of accused-appellant’s pants. Neither was it a stop-and-frisk situation. While thistype may seemingly fall under the consented search exception, we reiterate that “[c]onsent to a search is not to be lightly inferred, but shown by clear and convincing evidence.”

Consent must also be voluntary inorder to validate an otherwise illegal search; that is, the consent mustbe unequivocal, specific, intelligently given, and uncontaminated by any duress or coercion.