EN BANC
G.R. No. 215305, April 03, 2018
MARCELO G. SALUDAY, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
D E C I S I O N
CARPIO, ACTING C.J.:**
That on or about May 5, 2009, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, willfully, unlawfully and knowingly, with intent to possess, had in his possession and under his custody an improvised high powered firearm caliber .30 carbine bearing Serial No. 64702 (made in Spain) with one (1) magazine loaded with three (3) live ammunitions and one (1) "cacao" type hand grenade explosive; without first securing the necessary license to possess the same.When arraigned, petitioner pleaded not guilty.
CONTRARY TO LAW.6
On the other hand, the defense presented petitioner as sole witness. On direct examination, petitioner denied ownership of the bag. However, he also admitted to answering SCAA Buco when asked about its contents and allowing SCAA Buco to open it after the latter sought for his permission:
Atty. Mamburam Q And that check point, which was conducted along Ilang [R]oad, Davao City, was by virtue of a memorandum? A Yes, Your Honor. x x x x Q Now, you said that at around 5:00 of said date, you were able to intercept a Metro Shuttle passenger bus and you requested all passengers to alight? A Yes. Q All female passengers were left inside? A Yes.Your Honor. Q And, after all passengers were able to alight, you checked all cargoes of the passengers in the bus? A Yes. x x x x Q And, you testified that one of those things inside the bus was a black gray colored pack bag which was placed at the back portion of the bus? A Yes. Q You said that the bag was heavy? A Yes. Q And you picked up or carried also the other belongings or cargo[e]s inside the bus and that was the only thing or item inside the bus which was heavy. Is that correct? A There were many bags and they were heavy. When I asked who is the owner of the bag because it was heavy but the bag was small, when I asked, he said the content of the bag was a cellphone. But I noticed that it was heavy. x x x x Q And you said that somebody admitted ownership of the bag. Is that correct? A Yes. Q Who admitted ownership of the bag? A (WITNESS POINTS TO THE ACCUSED) Q Now, you said that while you are looking at the bag, you noticed that one male passenger you pointed as the accused kept looking at you? A Yes. Q And, aside from the accused, all the other male passengers were not looking at you? A The other passengers were on the ground but he was in front of [the] window looking towards his bag. x x x x Q And the accused admitted that he owned the bag, you requested him to open the bag? A Not yet. I let him board the bus and asked him if he can open it. Q And, when he opened it? A I saw the handle of the firearm.8 (Emphasis supplied)
On cross-examination, petitioner clarified that only he was pointed at by the conductor when the latter was asked who owned the bag. Petitioner also admitted that he never disclosed he was with his brother when he boarded the bus:
ATTY. MAMBURAM Q x x x [A]fter the conductor of the bus told the member of the task force that you and your brother were seated at the back of the bus, can you please tell us what happened next? A A The member of the task force asked who is the owner of the bag and what were the contents of the bag. Q To whom did the member of the task force address that question? A To me because I was pointed to by the conductor. Q And what was your reply to the question of the member of the task force? A I told him it was only a cellphone. Q By the way, Mr. Witness, who owned that bag? A My elder brother. Q And why did you make a reply to the question of the member of the task force when, in fact, you were not the owner of the bag? A Because I was pointed to by the conductor that it was me and my brother who were seated at the back. x x x x Q Now, after you told the member of the task force that probably the content of the bag was cellphone, what happened next? A He asked if he can open it. Q And what was your reply? A I told him yes, just open it. x x x x Q Now, you said that the owner of the bag and the one who carried that bag was your brother, what is the name of your brother? A Roger Saluday. Q Where is your brother Roger now? A Roger is already dead. He died in September 2009.9 (Emphasis supplied)
The defense subsequently rested its case and the prosecution waived the right to present rebuttal evidence. Upon order from the trial cm.ni, the parties submitted their respective memoranda.
PROS. VELASCO Q You said that you panicked because they pulled you but as a way of suving yourself considering you don't own the bag, did you not volunteer to inform them that [the] bag was owned by your brother? A I told them I have a companion but I did not tell them that it was my brother because I was also afraid of my brother. Q So, in short, Mr. Witness, you did not actually inform them that you had a brother at that time when you were boarding that bus, correct? A No, sir, I did not. x x x x Q So, you were answering all questions by saying it is not your bag but you confirm now that it was the conductor of that bus who pointed you as the owner of the bag, correct? A Yes, sir, the conductor pointed at me as the one who [sic] seated at the back.10 (Emphasis supplied)
WHEREFORE, in view of all the foregoing, judgment is hereby rendered finding Marcelo Gigbalen Saluday GUILTY of illegal possession of high powered firearm, ammunition and explosive. For the offense of illegal possession of high powered firearm and ammunition, he is hereby sentenced to suffer an imprisonment of prision mayor in its minimum period. He is likewise ordered to pay a fine of P30,000.00. For the offense of illegal possession of explosive, he is hereby sentenced to suffer an imprisonment of prision mayor in its maximum period to reclusion temporal. He is likewise ordered to pay a fine of P50,000.00.On 12 October 2011, petitioner timely filed his Notice of Appeal.12
x x x x
SO ORDERED.11
WHEREFORE, the instant appeal is DISMISSED. The Sentence dated September 15, 2011 of the Regional Trial Court, 11th Judicial Region, Branch 11, Davao City, in Criminal Case No. 65,734-09, finding Marcelo Gigbalen Saluday guilty beyond reasonable doubt of illegal possession of high powered firearm, ammunition and explosive is AFFIRMED with the MODIFICATION that:Petitioner then filed a Motion for Reconsideration,16 to which the OSG filed its Comment.17 In its Resolution dated 15 October 2014,18 the Court of Appeals denied petitioner's Motion for Reconsideration for being pro forma. Hence, petitioner filed this Petition for Review on Certiorari under Rule 45 of the Rules of Court.
(1) for the offense of illegal possession of high-powered firearm and ammunition, he is imposed an indeterminate sentence of four (4) years, eight (8) months and twenty-one (21) days of prision correccional maximum, as the minimum term, to seven (7) years and one (1) day of prision mayor minimum, as the maximum term, in addition lo the fine of Thirty thousand pesos (P30,000.00); and
(2) for the offense of illegal possession of explosive, he is sentenced to suffer the penalty of reclusion perpetua without eligibility for parole.
SO ORDERED.15
In the present case, the prosecution proved the negative fact that appellant has no license or permit to own or possess the firearm ammunition and explosive by presenting NUP Daniel Tab[u]ra (Tab[u]ra), a representative of the Firearms and Explosives Division (FED) of the PNP. He identified the Certification issued by the Chief, Records Section, FED of the PNP, stating that appellant "is not a licensed/registered holder of any kind and caliber per verification from records of this office."As above-quoted, the presence of the second and third elements of illegal possession of firearm, ammunition, and explosive raises questions of fact. Considering further that the Court of Appeals merely echoed the factual findings of the trial court, the Court finds no reason to disturb them.
Appellant, however, questions the competence of Tab[u]ra to testify on the veracity or truthfulness of the Certification. He claims that the officer who issued it should have been the one presented so he would not be denied the right to confront and cross-examine the witnesses against him.
There is no merit to petitioner's claim. The following is pertinent:x x x xAlso, appellant denies having physical or constructive possession of the firearms, ammunition and explosive. However, his denial flies in the face of the following testimonies which he himself made:
The Court on several occasions ruled that either the testimony of a representative of, or a certification from, the Philippine National Police (PNP) Firearms and Explosive Office attesting that a person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the second element of possession of illegal firearms. The prosecution more than complied when it presented both.
x x x x
x x x x
Appellant gave information, albeit misleading, op the contents of the bag. He even allowed the police officer to open it Based on his actuations, there could be no doubt that he owned the bag containing the fireann, ammunition and explosive.
Shifting the blame to his dead brother is very easy for appellant to fabricate. Besides, the allegation that his brother owned the bag is uncorroborated and self-serving.23
SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant.of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. (Emphasis supplied)Indeed, the constitutional guarantee is not a blanket prohibition. Rather, it operates against "unreasonable" searches and seizures only.25 Conversely, when a search is "reasonable," Section 2, Article III of the Constitution does not apply. As to what qualifies as a reasonable search, the pronouncements of the U.S. Supreme Court, which are doctrinal in this jurisdiction,26 may shed light on the matter.
Because of the misleading way the issues have been formulated, the parties have attached great significance to the characterization oftbe telephone booth trom which the petitioner placed his calls. The petitioner has strenuously argued that the booth was a "constitutionally protected area." The Government has maintained with equal vigor that it was not. But this effort to decide whether or not a given "area," viewed in the abstract, is constitutionally protected" deflects attention from the problem presented by this cast. For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210; United States v. Lee, 274 U.S. 559, 563. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. See Rios v. United States, 364 U.S. 253; Ex parte Jackson, 96 U.S. 727, 733.28 (Emphasis supplied)Further, Justice John Harlan laid down in his concurring opinion the two-part test that would trigger the application of the Fourth Amendment. First, a person exhibited an actual (subjective) expectation of privacy.29Second, the expectation is one that society is prepared to recognize as reasonable (objective).30
Persons may lose the protection of the search and seizure clause by exposure of their persons or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to recognize as reasonable. Such recognition is implicit in airport security procedures. With increased concern over airplane hijacking and terrorism has come increased security at the nation's airports. Passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence of suspicious objects, physical searches are conducted to determine what the objects are. There is little question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacy expectations associated with airline travel. Indeed, travelers are often notified through airport public address systems, signs. and notices in their airline tickets that they are subject to search and, if any prohibited materials or substances are found, such would be subject to seizure. These announcements place passengers on notice that ordinary constitutional protections against warrantless searches and seizures do not apply to routine airport procedures.32 (Citations omitted)Similarly, in Dela Cruz v. People,33 the Court described seaport searches as reasonable searches on the ground that the safety of the traveling public overrides a person's right to privacy:
Routine baggage inspections conducted by port authorities, although done without search warrants, are not unreasonable searches per se. Constitutional provisions protecting privacy should not be so literally understood so as to deny reasonable safeguards to ensure the safety of the traveling public.In People v. Breis,35 the Court also justitied a bus search owing to the reduced expectation of privacy of the riding public:
x x x x
Thus, with port security personnel's functions having the color of state-related functions and deemed agents of govemment, Marti is inapplicable in the present case. Nevertheless, searches pursuant to port security measures are not unreasonable per se. The security measures of x-ray scanning and inspection in domestic ports are akin to routine security procedures in airports.
x x x x
Port authorities were acting within their duties and functions when [they] used x-ray scanning machines for inspection of passengers' bags. When the results of the x-ray scan revealed the existence of firearms in the bag, the port authorities had probable cause to conduct a search of petitioner's bag. Notably, petitioner did not contest the results of the x-ray scan.34
Unlike the officer in Chan Fook, IOl Mangili did not exceed his authority in the performance of his duty. Prior to Breis' resistance, IOl Mangili laid nary a finger on Breis or Yumol. Neither did his presence in the bus constitute an excess of authority. The bus is public transportation, and is open to the public. The expectation of privacy in relation to the constitutional right against unreasonable searches in a public bus is not the same as that in a person's dwelling. In fact, at that point in time, only the bus was being searched, not Yumol, Breis, or their belongings, and the search of moving vehicles has been uphold.36Indeed, the reasonableness of a person's expectation of privacy must be determined on a case-to-case basis since it depends on the factual circumstances surrounding the case.37 Other factors such as customs, physical surroundings and practices of a particular activity may diminish this expectation.38 In Fortune Express, Inc. v. Court of Appeals,39 a common carrier was held civilly liable for the death of a passenger due to the hostile acts of armed men who boarded and subsequently seized the bus. The Court held that "simple precautionary measures to protect the safety of passengers, such as frisking passengers and inspecting their baggages, preferably with non-intrusive gadgets such as metal detectors, before allowing them on board could have been employed without violating the passenger's constitutional rights."40 In Costabella Corp. v. Court of Appeals,41 a compulsory right of way was found improper for the failure of the owners of the dominant estate to allege that the passageway they sought to be re-opened was at a point least prejudicial to the owner of the servient. estate. The Court thus explained, "[c]onsidering that the petitioner operates a hotel and beach resort in its property, it must undeniably maintain a strict standard of security within its premises. Otherwise, the convenience, privacy, and safety of its clients and patrons would be compromised."42 Similarly, shopping malls install metal detectors and body scanners, and require bag inspection as a requisite tor entry. Needless to say, any security lapse on the part of the mall owner can compromise public safety.
A waiver was found in People v. Omaweng. There, the police officers asked the accused if they could see the contents of his bag and he answered "you can see the contents but those are only clothings." When asked if they could open and see it, he said "you can see it." In the present case, accused-appellant told the member of the task force that "it was only a cellphone" when asked who owns the bag and what are its contents. When asked by the member of the task force if he could open it, accusedappellant told him "yes, just open it." Hence, as in Omaweng, there was a waiver of accused-appellants right against warrantless search.52To emphasize, a reasonable search, on the one hand, and a warrantless search, on the other, are mutually exclusive. While both State intrusions are valid even without a warrant, the underlying reasons for the absence of a warrant are different. A reasonable search arises from a reduced expectation of privacy, for which reason Section 2, Article III of the Constitution finds no application. Examples include searches done at airports, seaports, bus terminals, malls, and similar public places. In contrast, a warrantless search is presumably an "unreasonable search," but for reasons of practicality, a search warrant can be dispensed with. Examples include search incidental to a lawful arrest, search of evidence in plain view, consented search, and extensive search of a private moving vehicle.
| Very truly yours, |
(SGD) | |
EDGAR O. ARICHETA | |
Clerk of Court |
Endnotes:
** Acting Chief Justice.
1Rollo, pp. 25-34. Penned by Associate Justice Edgardo T. Lloren with Associate Justices Edward B. Contreras and Rafael Antonio M. Santos concurring.
2 Id. at 41-42.
3 CA rollo, pp. 22-25. Penned by Judge Virginia Hofileña Europa.
4 Entitled "Codifying the Laws on Illegal/Unlawful Possession, Manufacture, Dealing in Acquisition or Disposition, of Firearms, Ammunition or Explosives or Instruments Used in the Manufacture of Firearms, Ammunition or Explosives. and Imposing Stiffer Penalties for Certain Violations Thereof and for Relevant Purposes." Effective 29 June 1983.
5 Records, pp. 2-3.
6 Id. at 1.
7 Exhibit "F;" Folder of Exhibits, p. 2.
8 TSN, 11 November 2009, pp. 14-16.
9 TSN, 22 March 2010, pp. 5-6, 8.
10 TSN, 22 March 2010, p. 10.
11 CA rollo, pp. 24-25.
12 Id. at 8.
13 Id. at 15-19.
14 Id. at 46-60.
15Rollo, pp. 33-34.
16 Id. at 35-39.
17 CA rollo, pp. 87-90.
18Rollo, pp. 41-42.
19 Section I, Rule 45, Rules of Court.
20Jose v. People, 479 Phil. 969, 978 (2004).
21De la Cruz v. Court of Appeals, 333 Phil. 126, 135 (1996). See also Castillo v. Court of Appeals, 329 Phil. 150, 158-159 (1996); Navallo v. Sandiganbayan, 304 Phil. 343, 354 (1994); People v. Cabalhin, 301 Phil. 494, 504 (1994).
22People v. Dela Cruz, 400 Phil. 872, 879-880 (2000), citing People v. Bergante, 350 Phil. 275, 291 (1998).
23Rollo, pp. 28-31.
24 The Fourth Amendment of the U.S. Constitution reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, andparticularly describing the place to be searched, and the persons of things to be seized. (Emphasis supplied)
25People v. Aruta, 351 Phil. 868, 878 (1998).
26People v. Marti, 271 Phil. 51, 57 (1991).
27 389 U.S. 347 (1967).
28 Id. at 351.
29 Id. at 361.
30 Id.
31 401 Phil. 734 (2000).
32 Id. at 743.
33 776 Phil. 653 (2016).
34 Id. at 66l, 681, 683-684.
35 766 Phil. 785 (2015).
36 Id. at 812.
37Sps. Hing v. Choachuy, Sr., 712 Phil. 337, 350 (2013).
38Ople v. Torres. 354 Phil. 948, 981 (1998).
39 364 Phil. 480 (1999).
40 Id. at 490.
41 271 Phil. 350 (1991)
42 Id. at 359.
43Rollo, pp. 108-110.
44Caballes v. Court of Appeals, 424 Phil. 263, 286 (2002).
45 Id., citing 68 Am Jur 2d Searches and Seizures, § 135.
46 Id., citing United States v. Barahona, 990 F. 2d 412.
47 Id., citing United States v. Lopez, 911 F. 2d 1006.
48 Id., citing United States v. Nafzger, 965 F. 2d 213.
49 362 Phil. 118, 127 (1999).
50 349 Phil. 640, 661 (1998).
51 288 Phil. 350, 358-359 (1992).
52Rollo, p. 32.