SECOND DIVISION

G.R. No. 182534, September 02, 2015

ONGCOMA HADJI HOMAR, Petitioner, v. PEOPLE OF THE

PHILIPPINES, Respondent.

DECISION

BRION, J.:

Before the Court is a petition for review on certiorari filed by Ongcoma Hadji

Homar (petitioner) seeking the reversal of the Decision1 of the Court of
Appeals (CA) dated January 10, 2008, and its Resolution dated April 11, 2008
in CA-G.R. CR No. 29364. These assailed CA rulings affirmed the decision of
the Regional Trial Court (RTC) of Parañaque City, Branch 259 in Criminal Case
No. 02-0986 which convicted the petitioner for violation of Republic Act (RA)
No. 9165 entitled "An Act Instituting the Comprehensive Dangerous Drugs Act
of 2002."

The Factual Antecedents

The petitioner was charged for violation of Section 11, Article II 2 of RA 9165.
The Information states that on or about August 20, 2002, the petitioner was
found to possess one heat-sealed transparent plastic sachet containing 0.03
grams of methylamphetamine hydrochloride, otherwise known as shabu. The
petitioner pleaded not guilty during arraignment.

PO1 Eric Tan (Tan) was the lone witness for the prosecution. As stated in the
RTC decision, he testified that on August 20, 2002, at around 8:50 in the
evening, their Chief, P/Chief Supt. Alfredo C. Valdez, ordered him and civilian
agent (C/A) Ronald Tangcoy (Tangcoy) to go to the South Wing, Roxas
Boulevard. While proceeding to the area onboard a mobile hunter, they saw
the petitioner crossing a "No Jaywalking" portion of Roxas Boulevard. They
immediately accosted him and told him to cross at the pedestrian crossing
area.

Eric Tan and Ronald Tangcoy was ordered to go to Roxas Boulevard by their
Superior. While proceeding to the area onboard a mobile hunter, they saw the
petitioner crossing a "No Jaywalking" portion of Roxas Boulevard. They
immediately accosted him and told him to cross at the pedestrian crossing
area.
The petitioner picked up something from the ground, prompting Tangcoy to
frisk him resulting in the recovery of a knife. Thereafter, Tangcoy conducted a
thorough search on the petitioner's body and found and confiscated a plastic
sachet containing what he suspected as shabu.

Tangcoy and Tan executed a sinumpaang salaysay on the incident.4

The petitioner was the sole witness for the defense. 5 He testified that on
August 20, 2002, he was going home at around 6:30 p.m. after selling
imitation sunglasses and other accessories at the BERMA Shopping Center.
After crossing the overpass, a policeman and a civilian stopped and frisked
him despite his refusal. They poked a gun at him, accused him of being
a holdupper, and forced him to go with them. They also confiscated the
kitchen knife, which he carried to cut cords. He was likewise investigated for
alleged possession of shabu and detained for one day. He was criminally
charged before the Metropolitan Trial Court of Parañaque City, Branch 77 for
the possession of the kitchen knife but he was eventually acquitted.6

The RTC's Ruling

The RTC convicted the petitioner. It ruled that PO1 Tan and C/A Tangcoy
were presumed to have performed their duties regularly in arresting and
conducting a search on the petitioner. The RTC also noted that PO1 Eric Tan
was straightforward in giving his testimony and he did not show any ill motive
in arresting the petitioner.7

The RTC also did not believe the petitioner's defense of denial and ruled that
it is a common and standard defense ploy in most prosecutions in dangerous
drugs cases. This defense is weak especially when it is not substantiated by
clear and convincing evidence as in this case.8

The petitioner filed an appeal with the CA.

The CA's ruling

The CA dismissed the petition and affirmed the RTC's findings.

According to the CA, Section 5, paragraph (a) of Rule 113 of the Revised
Rules of Criminal Procedure enumerates the circumstances when a
warrantless arrest is legal, valid, and proper. One of these is when the person
to be arrested has committed, is actually committing, or is attempting to
commit an offense in the presence of a peace officer or a private person. In
the present case, the petitioner committed jaywalking in the presence of PO1
Tan and C/A Tangcoy; hence, his warrantless arrest for jaywalking was
lawful.9

Consequently, the subsequent frisking and search done on the petitioner's

body which produced the knife and the shabu were incident to a lawful arrest
allowed under Section 13, Rule 126 of the Revised Rules of Criminal
Procedure.10

The CA likewise ruled that PO1 Tan11 clearly showed that the petitioner was
caught in flagrante delicto in possession of shabu.12

The petitioner filed a motion for reconsideration which was denied by the
CA.13 Hence, this appeal.

The Petitioner's Position

The petitioner argues that the CA erred in affirming his conviction on the
following grounds:chanRoblesvirtualLawlibrary

First, the shabu, which was allegedly recovered from the petitioner, is

inadmissible as evidence because it was obtained as a result of his unlawful
arrest and in violation of his right against unreasonable search and seizure.
The petitioner has not committed, was not committing and was not
attempting to commit any crime at the time of his arrest. In fact, no report or
criminal charge was filed against him for the alleged jaywalking.14

Second, assuming for the sake of argument that there was a valid arrest,
Section 13, Rule 126 of the Revised Rules of Criminal Procedure permits a
search that is directed only upon dangerous weapons or "anything which may
have been used or constitute proof in the commission of an offense without a
warrant." In the present case, the offense, for which the petitioner was
allegedly caught in flagrante delicto, is jaywalking. The alleged confiscated
drug has nothing to do with the offense of jaywalking.15

Finally, the non-presentation of Tangcoy, who allegedly recovered

the shabu from the petitioner, renders the prosecution's evidence weak and
uncorroborated. Consequently, the sole testimony of Tan cannot sustain the
petitioner's conviction beyond reasonable doubt.

The Respondent's Position

In his Comment, the respondent argues that the guilt of the petitioner was
conclusively established beyond reasonable doubt.16 He reiterates that the
warrantless frisking and search on the petitioner's body was an incident to a
lawful warrantless arrest for jaywalking.17 The non-filing of a criminal charge
of jaywalking against the petitioner does not render his arrest invalid.18

The respondent also assails the petitioner's defense that the shabu is

inadmissible as evidence. According to the respondent, the petitioner can no
longer question his arrest after voluntarily submitting himself to the
jurisdiction of the trial court when he entered his plea of not guilty and when
he testified in court.19

The Court's Ruling

We find the petition meritorious.

The prosecution failed to prove that a lawful warrantless arrest preceded the
search conducted on the petitioner's body.

The Constitution guarantees the right of the people to be secure in their

persons, houses, papers, and effects against unreasonable searches and
seizures. Any evidence obtained in violation of these rights shall be
inadmissible for any purpose in any proceeding. While the power to search
and seize may at times be necessary to the public welfare, the exercise of
this power and the implementation of the law should not violate the
constitutional rights of the citizens.20

To determine the admissibility of the seized drugs in evidence, it is

indispensable to ascertain whether or not the search which yielded the
alleged contraband was lawful.21 There must be a valid warrantless search
and seizure pursuant to an equally valid warrantless arrest, which must
precede the search. For this purpose, the law requires that there be first a
lawful arrest before a search can be made — the process cannot be
reversed.22
Section 5, Rule 11323 of the Revised Rules of Criminal Procedure provides the
only occasions when a person may be lawfully arrested without a warrant. In
the present case, the respondent alleged that the petitioner's warrantless
arrest was due to his commission of jaywalking in flagrante delicto and in the
presence of Tan and Tangcoy.

To constitute a valid in flagrante delicto arrest, two requisites must concur:

(1) the person to be arrested must execute an overt act indicating that he
has just committed, is actually committing, or is attempting to commit a
crime; and (2) such overt act is done in the presence of or within the view of
the arresting officer.24

The prosecution has the burden to prove the legality of the warrantless arrest
from which the corpus delicti of the crime - shabu - was obtained. For,
without a valid warrantless arrest, the alleged confiscation of
the shabu resulting from a warrantless search on the petitioner's body is
surely a violation of his constitutional right against unlawful search and
seizure. As a consequence, the alleged shabu shall be inadmissible as
evidence against him.

On this point, we find that aside from the bare testimony of Tan as quoted by
the CA in its decision, the prosecution did not proffer any other proof to
establish that the requirements for a valid in flagrante delicto arrest were
complied with. Particularly, the prosecution failed to prove that the petitioner
was committing a crime.

The respondent failed to specifically identify the area where the petitioner
allegedly crossed. Thus, Tan merely stated that the petitioner "crossed the
street of Roxas Boulevard, in a place not designated for crossing." Aside from
this conclusion, the respondent failed to prove that the portion of Roxas
Boulevard where the petitioner crossed was indeed a "no jaywalking" area.
The petitioner was also not charged of jaywalking. These are pieces of
evidence that could have supported the conclusion that indeed the petitioner
was committing a crime of jaywalking and therefore, the subsequent arrest
and search on his person was valid. Unfortunately, the prosecution failed to
prove this in the present case.

We clarify, however, that the filing of a criminal charge is not a condition

precedent to prove a valid warrantless arrest. Even if there is a criminal
charge against an accused, the prosecution is not relieved from its burden to
prove that there was indeed a valid warrantless arrest preceding the
warrantless search that produced the corpus delicti of the crime.

Neither can the presumption of regularity in the performance of official duty

save the prosecution's lack of evidence to prove the warrantless arrest and
search. This presumption cannot overcome the presumption of innocence or
constitute proof of guilt beyond reasonable doubt. Among the constitutional
rights enjoyed by an accused, the most primordial yet often disregarded is
the presumption of innocence. This elementary principle accords every
accused the right to be presumed innocent until the contrary is proven
beyond reasonable doubt; and the burden of proving the guilt of the accused
rests upon the prosecution.25cralawred

It may not be amiss to point out also the contrary observation of the Court as
regards the findings of the RTC when it held, rather hastily, that in the
process of accosting the petitioner for jaywalking, Tangcoy recovered from his
possession a knife and a small plastic sachet containing shabu26 The
testimony of Tan, as quoted in the CA decision, and the findings of the RTC,
cast doubt on whether Tan and Tangcoy intended to arrest the petitioner
for jaywalking.

Arrest is the taking of a person into custody in order that he or she may be
bound to answer for the commission of an offense. It is effected by an actual
restraint of the person to be arrested or by that person's voluntary
submission to the custody of the one making the arrest. Neither the
application of actual force, manual touching of the body, or physical restraint,
nor a formal declaration of arrest, is required. It is enough that there be
an intention on the part of one of the parties to arrest the other, and
that there be an intent on the part of the other to submit, under the
belief and impression that submission is necessary. 27

The pertinent testimony28 of Tan, as quoted by the CA, is as follows:

What happened after you obeyed the order of your immediate
Q:
superior?

At 8:50 in the evening of August 20, 2002, we saw a male person

A: crossed the street of Roxas Boulevard, in a place not designated
for crossing.

What did you do when you saw this person crossed the street of
Q:
Roxas Boulevard, in a place not designated for crossing?

A: We accosted him.

Q: How did you accost that person?

We accosted him and pointed to him the right place for crossing.
Pero napansin namin siya na parang may kinukuha, so he was
A:
frisked by Ronald Tangcoy and a knife was recovered from his
possession.

After a knife was recovered by your companions (sic) from that

Q: person who allegedly crossed the wrong side of the street, what
happened after that?

After recovering the knife, nakaalalay lang ako and he was

A: frisked again by Tangcoy and a plastic sachet was recovered from
his possession.

Did you know the contents of that plastic sachet which your
Q: companion recovered from that person who crossed the wrong side
of the street?

A: Yes, sir.

Q: What about the contents?

 A: Suspected shabu or methylamphetamine hydrochloride.

After the drug was recovered from the possession of that man,
Q:
what did you do?

We brought him to our precinct and informed him of his

constitutional rights and brought him to the Parañaque Community
A:
Hospital and the suspected shabu or methylamphetamine was brought
to the PNP Crime Lab at Fort Bonifacio.

Did you come to know the name of that person whom you arrested in
Q:
the morning of August 20, 2002?

A: Yes, sir.

Q: What is his name?

A: Ongcoma Hadji Omar, sir.

Is he the same Ongcoma Hadji Omar y Para, the accused in this

Q:
case?

A: Yes, sir.
[emphasis and underscoring supplied]
Clearly, no arrest preceded the search on the person of the petitioner. When
Tan and Tangcoy allegedly saw the petitioner jaywalking, they did not arrest
him but accosted him and pointed to him the right place for crossing. In fact,
according to the RTC, Tan and Tangcoy "immediately accosted him and
told him to cross [at] the designated area."29

Tan and Tangcoy did not intend to bring the petitioner under custody or to
restrain his liberty. This lack of intent to arrest him was bolstered by the fact
that there was no criminal charge that was filed against the petitioner for
crossing a "no jaywalking" area.

From Tan's testimony, the intent to arrest the petitioner only came after they
allegedly confiscated the shabu from the petitioner, for which they informed
him of his constitutional rights and brought him to the police station.

The indispensability of the intent to arrest an accused in a warrantless search

incident to a lawful arrest was emphasized in Luz vs. People of the
Philippines.30 The Court held that the shabu confiscated from the accused in
that case was inadmissible as evidence when the police officer who flagged
him for traffic violation had no intent to arrest him. According to the Court,
due to the lack of intent to arrest, the subsequent search was unlawful. This
is notwithstanding the fact that the accused, being caught in flagrante
delicto for violating an ordinance, could have been therefore lawfully
stopped or arrested by the apprehending officers.

In the light of the discussion above, the respondent's argument that there
was a lawful search incident to a lawful warrantless arrest for jaywalking
appears to be an afterthought in order to justify a warrantless search
conducted on the person of the petitioner. In fact, the illegality of the search
for the shabu is further highlighted when it was not recovered immediately
after the alleged lawful arrest, if there was any, but only after the initial
search resulted in the recovery of the knife. Thereafter, according to Tan,
Tangcoy conducted another search on the person of the petitioner resulting
in the alleged confiscation of the shabu. Clearly, the petitioner's right to be
secure in his person was callously brushed aside twice by the arresting police
officers.31
chanroblesvirtuallawlibrary

The waiver of an illegal warrantless arrest does not also mean a waiver of the
inadmissibility of evidence seized during an illegal warrantless arrest.

We agree with the respondent that the petitioner did not timely object to the
irregularity of his arrest before his arraignment as required by the Rules. In
addition, he actively participated in the trial of the case. As a result, the
petitioner is deemed to have submitted to the jurisdiction of the trial court,
thereby curing any defect in his arrest.

However, this waiver to question an illegal arrest only affects the jurisdiction
of the court over his person. It is well-settled that a waiver of an illegal,
warrantless arrest does not carry with it a waiver of the inadmissibility of
evidence seized during an illegal warrantless arrest.32

Since the shabu was seized during an illegal arrest, its inadmissibility as

evidence precludes conviction and justifies the acquittal of the petitioner.

WHEREFORE, we GRANT the petition and REVERSE and SET ASIDE the

Decision of the Court of Appeals dated January 10, 2008, and its Resolution
dated April 11, 2008 in CA-G.R. CR No. 29364. Petitioner ONGCOMA HADJI
HOMAR is ACQUITTED and ordered immediately RELEASED from detention,
unless he is confined for any other lawful cause.
Homar v. People (Warrantless arrrest) (The confiscated evidence is
inadmissible, is because it is taken without warrant, and valid
warantless arrest cant be applied its because the defendant was not
in the act of committing a crime or has committed a crime)

Facts:

Eric Tan and Ronald Tangcoy was ordered to go to Roxas Boulevard by their
Superior. While proceeding to the area onboard a mobile hunter, they saw the
petitioner crossing a "No Jaywalking" portion of Roxas Boulevard. They
immediately accosted him and told him to cross at the pedestrian crossing
area.
The petitioner picked up something from the ground, prompting Tangcoy to
frisk him resulting in the recovery of a knife. Thereafter, Tangcoy conducted a
thorough search on the petitioner's body and found and confiscated a plastic
sachet containing what he suspected as shabu.

Issue:

Won Warrantless arrest was valid?

Held:
The seizure of the shabu was inadmissible as evidence for it was taken
without warrant. It is invalid warrantless arrest its because due to lack of
evidence that the defendant is about to commit a crime or has committed a
crime. It is clear that there is a violation to his constitutional right to be
secured from warrantless arrest, search and seizure. Acquitted.