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[ GR No. 91107, Jun 19, 1991 ]



G.R. No. 91107


[ G.R. No. 91107, June 19, 1991 ]




In an information dated 15 June 1989, accused-appellant Mikael Malmstedt (hereinafter referred to as the accused) was charged before the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch 10, in Criminal Case No. 89-CR-0663, for violation of Section 4, Art. II of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, as amended.  The factual background of the case is as follows:

Accused Mikael Malmstedt, a Swedish national, entered the Philippines for the third time in December 1988 as a tourist.  He had visited the country sometime in 1982 and 1985.

In the evening of 7 May 1989, accused left for Baguio City.  Upon his arrival thereat in the, morning of the following day, he took a bus to Sagada and stayed in that place for two (2) days.

At around 7:00 o'clock in the morning of 11 May 1989, accused went to the Nangonogan bus stop Sagada to catch the first available trip to Baguio City.  From Baguio City, accused planned to take a late afternoon trip to Angeles City, then proceed to Manila to catch his flight out of the country, scheduled on 13 May 1989.  From Sagada, accused took a Skyline bus with body number 8005 and Plate number AVC 902.[1]

At about 8:00 o'clock in the morning of that same day (11 May 1989).  Captain Alen Vasco, the Commanding Officer of the First Regional Command (NARCOM) stationed at Camp Dangwa, ordered his men to set up a temporary checkpoint at Kilometer 14, Acop, Tublay, Mountain Province, for the purpose of checking all vehicles coming from the Cordillera Region.  The order to establish a checkpoint in the said area was prompted by persistent reports that vehicles coming from Sagada were transporting marijuana and other prohibited drugs.  Moreover, information was received by the Commanding Officer of NARCOM, that same morning, that a Caucasian coming from Sagada had in his possession prohibited drugs.[2]

The group composed of seven (7) NARCOM officers, in coordination with Tublay Police Station, set up a checkpoint at the designated area at about 10:00 o'clock in the morning and inspected all vehicles coming from the Cordillera Region.

At about 1:30 o'clock in the afternoon, the bus where accused was riding was stopped.  Sgt. Fider and CIC Galutan boarded the bus and announced that they were members of the NARCOM and that they would conduct an inspection.  The two (2) NARCOM officers started their inspection from the front going towards the rear of the bus.  Accused who was the sole foreigner riding the bus was seated at the rear thereof.

During the inspection, CIC Galutan noticed a bulge on accused's waist.  Suspecting the bulge on accused's waist to be a gun, the officer asked for accused's passport and other identification papers.  When accused failed to comply, the officer required him to bring out whatever it was that was bulging on his waist.  The bulging object turned out to be a pouch bag and when accused opened the same bag, as ordered, the officer noticed four (4) suspicious-looking objects wrapped in brown packing tape, prompting the officer to open one of the wrapped objects.  The wrapped objects turned out to contain hashish, a derivative of marijuana.

Thereafter, accused was invited outside the bus for questioning.  But before he alighted from the bus, accused stopped to get two (2) travelling bags from the luggage carrier.

Upon stepping out of the bus, the officers got the bags and opened them.  A teddy bear was found in each bag.  Feeling the teddy bears, the officer noticed that there were bulges inside the same which did not feel like foam stuffing.  It was only after the officers had opened the bags that accused finally presented his passport.

Accused was then brought to the headquarters of the NARCOM at Camp Dangwa, La Trinidad, Benguet for further investigation.  At the investigation room, the officers opened the teddy bears and they were found to also contain, hashish.  Representative samples were taken from the hashish found among the personal effects of accused and the same were brought to the PC Crime Laboratory for chemical analysis.

In the chemistry report, it was established that the objects examined were hashish, a prohibited drug which is a derivative of marijuana.  Thus, an information was filed against accused for violation of the Dangerous Drugs Act.

During the arraignment, accused entered a plea of "not guilty." For his defense, he raised the issue of illegal search of his personal effects.  He also claimed that the hashish was planted by the NARCOM officers in his pouch bag and that the two (2) travelling bags were not owned by him, but were merely entrusted to him by an Australian couple whom he met in Sagada.  He further claimed that the Australian couple intended to take the same bus with him but because there were no more seats available in said bus, they decided to take the next ride and asked accused to take charge of the bags, and that they would meet each other at the Dangwa Station.

Likewise, accused alleged that when the NARCOM officers demanded for his passport and other identification papers, he handed to one of the officers his pouch bag which was hanging on his neck containing, among others, his passport, return ticket to Sweden and other papers.  The officer in turn handed it to his companion who brought the bag outside the bus.  When said officer came back, he charged the accused that there was hashish in the bag.  He was told to get off the bus and his picture was taken with the pouch bag placed around his neck.  The trial court did not give credence to accused's defense.

The claim of the accused that the hashish was planted by the NARCOM officers, was belied by his failure to raise such defense at the earliest opportunity.  When accused was, investigated at the Provincial Fiscal's Office, he did not inform the Fiscal or his lawyer that the hashish was planted by the NARCOM officers in his bag.  It was only two (2) months after said investigation when be told his lawyer about said claim, denying ownership of the two (2) travelling bags as well as having hashish in his pouch bag.

In a decision dated 12 October 1989, the trial court found accused guilty beyond reasonable doubt for violation, of the Dangerous Drugs Act, specifically Section 4. Art. II of RA 6425, as amended.[3] The dispositive portion of the decision reads as follows:

"WHEREFORE, finding the guilt of the accused Mikael Malmstedt established beyond reasonable doubt, this Court finds him GUILTY of violation of Section 4, Article II of Republic Act 6425, as amended, and hereby sentences him to suffer the penalty of life imprisonment and to pay a fine of Twenty Thousand Pesos (P20,000.00) with subsidiary imprisonment in case of insolvency and to pay the costs.
Let the hashish subject of this case be turned over to the First Narcotics Regional Unit at Camp Bado; Dangwa, La Trinidad, Benguet for proper disposition under Section 20, Article IV of Republic Act 6425, as amended.

Seeking the reversal of the decision of the trial court finding him guilty of the crime charged, accused argues that the search of his personal effects was illegal because it was made without a search warrant and, therefore, the prohibited drugs which were discovered during the illegal search are not admissible as evidence against him.

The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.[5] However, where the search is made pursuant to a lawful arrest, there is no need to obtain a search warrant.  A lawful arrest without a warrant may be made by a peace officer or a private person under the following circumstances:[6]

"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 from a penal establishment or place where he is serving final judgment or 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) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7.  (6a, 17a)."

Accused was searched and arrested while transporting prohibited drugs (hashish).  A crime was actually being committed by the accused and he was caught in flagrante delicto.  Thus, the search made upon his personal effects falls squarely under paragraph (1) of the foregoing provisions of law, which allow a warrantless search incident to a lawful arrest.[7]

While it is true that the NARCOM officers were not armed with a search warrant when the search was made over the personal effects of accused, however, under the circumstances of the case, there was sufficient probable cause for said officers to believe that accused was then and there committing a crime.

Probable cause has been defined as such facts and circumstances which could lead a reasonable, discreet and prudent man to believe that an offense has been committed, and that the objects sought in connection with the offense are in the place sought to be searched.[8] The required probable cause that will justify a warrantless search and seizure is not determined by any fixed formula but is resolved according to the facts of each case.[9]

Warrantless search of the personal effects of an accused has been declared by this Court as valid, because of existence of probable cause, where the smell of marijuana emanated from a plastic bag owned by the accused,[10] or where the accused was acting suspiciously,[11] and attempted to flee.[12]

Aside from the persistent reports received by the NARCOM that vehicles coming from Sagada were transporting marijuana and other prohibited drugs, their Commanding Officer also received information that a Caucasian coming from Sagada on that particular day had prohibited drugs in his possession.  Said information was received by the Commanding Officer of NARCOM the very same morning that accused came down by bus from Sagada on his way to Baguio City.

When NARCOM received the information, a few hours before the apprehension of herein accused, that a Caucasian travelling from Sagada to Baguio City was carrying with him prohibited drugs, there was no time to obtain a search warrant.  In the Tangliben case,[13] the police authorities conducted a surveillance at the Victory Liner Terminal located at Bgy. San Nicolas, San Fernando Pampanga, against persons engaged in the traffic of dangerous drugs, based on information supplied by some informers.  Accused Tangliben who was acting suspiciously and pointed out by an informer was apprehended and searched by the police authorities.  It was held that when faced with on-the-spot information, the police officers had to act quickly and there was no time to secure a search warrant.

It must be observed that, at first, the NARCOM officers merely conducted a routine check of the bus (where accused was riding) and the passengers therein, and no extensive search was initially made.  It was only when one of the officers noticed a bulge on the waist of accused, during the course of the inspection, that accused was required to present his passport.  The failure of accused to present his identification papers, when ordered to do so, only managed to arouse the suspicion of the officer that accused was trying to hide his identity.  For is it not a regular norm for an innocent man, who has nothing to hide from the authorities, to readily present his identification papers when required to do so?

The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession, plus the suspicious failure of the accused to produce his passport, taken together as a whole, led the NARCOM officers to reasonably believe that the accused was trying to hide something illegal from the authorities.  From these circumstances arose a probable cause which justified the warrantless search that was made on the personal effects of the accused.  In other words, the acts of the NARCOM officers in requiring the accused to open his pouch bag and in opening one of the wrapped objects found inside said bag (which was discovered to contain hashish) as well as the two (2) travelling bags containing two (2) teddy bears with hashish stuffed inside them were prompted by accused's own attempt to hide his identity by refusing to present his passport, and by the information received by the NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession.  To deprive the NARCOM agents of the ability and facility to act accordingly, including, to search even without warrant, in the light of such circumstances, would be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society.

WHEREFORE, premises considered, the appealed judgment of conviction by the trial court is hereby AFFIRMED.  Costs against the accused-appellant.


Melencio-Herrera, Paras, Feliciano, Bidin, Grino-Aquino, Medialdea, Regalado, and Davide, Jr., JJ., concur
Fernan, C.J., and Gutierrez, Jr., J., join J. Narvasa and J. Cruz in their dissenting opinion.
Gancayco, J., join J. Narvasa in his dissenting opinion.
Sarmiento, J., on leave.

[1] Brief for Defendant-appellant, Rollo, pp. 43-44

[2] Brief for Plaintiff-appellee, Rollo, p. 89

[3] Decision of the RTC of La Trinidad, Branch 10, dated 12 October 1989, Rollo, pp. 14-20

[4] Rollo, pp. 16-17

[5] Art. III, Sec. 2, 1987 Constitution

[6] Sec. 5, Rule 113 of the Rules on Criminal Procedure

[7] People vs. Maspil, G.R. No. 85177, 20 August 1990; People vs. Tangliben, G.R. No. 63630, 6 April 1990, 184 SCRA 220; People vs. Claudio, G.R. No. 72564, 15 April 1988, 160 SCRA 646

[8] Quintero vs. NBI, G.R. No. 35149, 23 June 1988, 162 SCRA 467

[9] Valmonte vs. De Villa, G.R. No. 83988, 29 September 1989, 178 SCRA 211

[10] People vs. Claudio, supra.

[11] People vs. Tangliben, supra.

[12] Posadas vs. Court of Appeals, G.R. No. 83139, 2 August 1990

[13] Supra.