THIRD DIVISION
[ G.R. No. 96177, January 27, 1993 ]PEOPLE v. MARI MUSA Y HANTATALU +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MARI MUSA Y HANTATALU, ACCUSED-APPELLANT.
D E C I S I O N
PEOPLE v. MARI MUSA Y HANTATALU +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MARI MUSA Y HANTATALU, ACCUSED-APPELLANT.
D E C I S I O N
ROMERO, J.:
The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision, dated August 31, 1990,[1] of the Regional Trial Court (RTC) of Zamboanga City, Branch XII, finding him guilty of selling marijuana in violation of Article
II, Section 4 of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972.
The information filed on December 15, 1989 against the appellant reads:
At the trial, the prosecution presented three (3) witnesses, namely: (1) Sgt. Amado Ani, Jr. of the 9th Narcotics Command (NARCOM) of Zamboanga City, who acted as poseur-buyer in the buy?bust operation made against the appellant; (2) T/Sgt. Jesus Belarga, also of the 9th Narcotics Command of Zamboanga City, who was the NARCOM team leader of the buy-bust operation; and (3) Athena Elisa P. Anderson, the Document Examiner and Forensic Chemist of PC-INP Crime Laboratory of Regional Command (RECOM) 9. The evidence of the prosecution was summarized by the trial court as follows:
The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not credible because: (1) prior to the buy-bust operation, neither Sgt. Ani nor the other NARCOM agents were personally known by the appellant or vice-versa; and (2) there was no witness to the alleged giving of the two wrappers of marijuana by the appellant to Sgt. Ani.
Sgt. Ani testified that on December 13, 1989, upon instruction by T/Sgt. Jesus Belarga, he conducted a test-buy operation on the appellant whereby he bought one wrapper of marijuana for P15.00 from the latter.[7] He reported the successful operation to T/Sgt. Belarga on the same day.[8] Whereupon, T/Sgt. Belarga conducted a conference to organize a buy-bust operation for the following day.[9]
On December 14, 1989, at 1:30 p.m., two NARCOM teams in separate vehicles headed by T/Sgt. Belarga and a certain Sgt. Foncardas went to the place of operation, which was the appellant's house located in Laquian Compound, Suterville, Zamboanga City. Sgt. Ani was with the team of T/Sgt. Belarga, whose other members were Sgts. Lego and Biong.[10] Sgt. Ani was given a marked P20.00 bill by T/Sgt. Belarga, which was to be used in the operation.
Upon reaching the place, the NARCOM agents positioned themselves at strategic places.[11] Sgt. Ani approached the house. Outside the house, the appellant asked Sgt. Ani what he wanted. Sgt. Ani asked him for some more marijuana.[12] Sgt. Ani gave him the marked P20.00 bill and the appellant went inside the house and brought back two paper wrappers containing marijuana which he handed to Sgt. Ani.[13] From his position, Sgt. Ani could see that there were other people in the house.[14]
After the exchange, Sgt. Ani approached the other NARCOM agents and made the pre-arranged signal of raising his right hand.[15] The NARCOM agents, accompanied by Sgt. Ani, went inside the house and made the arrest. The agents searched the appellant and unable to find the marked money, they asked him where it was. The appellant said that he gave it to his wife."[16]
The Court, after a careful reading of the record, finds the testimony of Sgt. Ani regarding the buy-bust operation, which resulted in the apprehension, prosecution and subsequent conviction of the appellant, to be direct, lucid and forthright. Being totally untainted by contradictions in any of the material points, it deserves credence.
The contention that the appellant could not have transacted with Sgt. Ani because they do not know each other is without merit. The day before the buy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought a wrapper of marijuana from the appellant. Through this previous transaction, Sgt. Ani was able to gain the appellant's confidence for the latter to sell more marijuana to Sgt. Ani the following day, during the buy-bust operation. Moreover, the Court has held that what matters is not an existing familiarity between the buyer and the seller, for quite often, the parties to the transaction may be strangers, but their agreement and the acts constituting the sale and delivery of the marijuana.[17]
The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was impossible for the appellant to sell marijuana while his wife, cousin and manicurist were present. But the place of the commission of the crime of selling prohibited drugs has been held to be not crucial[18] and the presence of other people apart from the buyer and seller will not necessarily prevent the consummation of the illegal sale. As the Court observed in People v. Paco,[19] these factors may sometimes camouflage the commission of the crime. In the instant case, the fact that the other people inside the appellant's house are known to the appellant may have given him some assurance that these people will not report him to the authorities.
The appellant, besides assailing Sgt. Ani's credibility, also questions the credibility of T/Sgt. Belarga. The appellant submits that since T/Sgt. Belarga admitted that he was about 90 meters away from Sgt. Ani and the appellant, he could not have possibly witnessed the sale. The appellant invokes People v. Ale[20] where the Court observed that from a distance of 10-15 meters, a policeman cannot distinguish between marijuana cigarette from ordinary ones by the type of rolling done on the cigarette sticks. And since T/Sgt. Belarga allegedly did not see the sale, the appellant contends that the uncorroborated testimony of Sgt. Ani can not stand as basis for his conviction.
People v. Ale does not apply here because the policeman in that case testified that he and his companion were certain that the appellant therein handed marijuana cigarettes to the poseur-buyer based on the appearance of the cigarette sticks. The Court rejected this claim, stating that:
Notwithstanding the fact that T/Sgt. Belarga could not have been certain that what Sgt. Ani received from the appellant was marijuana because of the distance, his testimony, nevertheless, corroborated the direct evidence, which the Court earlier ruled to be convincing, presented by Sgt. Ani on the following material points: (1) T/Sgt. Belarga instructed Sgt. Ani to conduct a surveillance and test-buy operation on the appellant at Suterville, Zamboanga City on December 13, 1989;[23] (2) later that same day, Sgt. Ani went back to their office and reported a successful operation and turned over to T/Sgt. Belarga one wrapper of marijuana;[24] (3) T/Sgt. Belarga then organized a team to conduct a buy-bust operation the following day;[25] (4) on December 14, 1989, T/Sgt. Belarga led a team of NARCOM agents who went to Suterville, Zamboanga City;[26] (5) T/Sgt. Belarga gave a P20.00 marked bill to Sgt. Ani which was to be used in the buy-bust operation;[27] (6) upon the arrival of the NARCOM agents in Suterville, Zamboanga City, Sgt. Ani proceeded to the house of the appellant while some agents stayed in the vehicles and others positioned themselves in strategic places;[28] the appellant met Sgt. Ani and an exchange of articles took place.[29]
The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence given by Sgt. Ani. Additionally, the Court has ruled that the fact that the police officers who accompanied the poseur-buyer were unable to see exactly what the appellant gave the poseur-buyer because of their distance or position will not be fatal to the prosecution's case[30] provided there exists other evidence, direct or circumstantial, e.g., the testimony of the poseur-buyer, which is sufficient to prove the consummation of the sale of the prohibited drug.
The appellant next assails the seizure and admission as evidence of a plastic bag containing marijuana which the NARCOM agents found in the appellant's kitchen. It appears that after Sgt. Ani gave the pre-arranged signal to the other NARCOM agents, the latter moved in and arrested the appellant inside the house. They searched him to retrieve the marked money but didn't find it. Upon being questioned, the appellant said that he gave the marked money to his wife.[31] Thereafter, T/Sgt. Belarga and Sgt. Lego went to the kitchen and noticed what T/Sgt. Belarga described as a "cellophane colored white and stripe hanging at the corner of the kitchen."[32] They asked the appellant about its contents but failing to get a response, they opened it and found dried marijuana leaves. At the trial, the appellant questioned the admissibility of the plastic bag and the marijuana it contains but the trial court issued an Order ruling that these are admissible in evidence.[33]
Built into the Constitution are guarantees on the freedom of every individual against unreasonable searches and seizures by providing in Article III, Section 2, the following:
While a valid search warrant is generally necessary before a search and seizure may be effected, exceptions to this rule are recognized. Thus, in Alvero v. Dizon,[36] the Court stated that "[t]he most important exception to the necessity for a search warrant is the right of search and seizure as an incident to a lawful arrest."[37]
Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless search and seizure incident to a lawful arrest, thus:
In the case at bar, the NARCOM agents searched the person of the appellant after arresting him in his house but found nothing. They then searched the entire house and, in the kitchen, found and seized a plastic bag hanging in a corner.
The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend beyond the person of the one arrested to include the premises or surroundings under his immediate control.[40] Objects in the "plain view" of an officer who has the right to be in the position to have that view are subject to seizure and may be presented as evidence.[41]
In Ker v. California,[42] police officers, without securing a search warrant but having information that the defendant husband was selling marijuana from his apartment, obtained from the building manager a passkey to defendants' apartment, and entered it. There they found the defendant husband in the living room. The defendant wife emerged from the kitchen, and one of the officers, after identifying himself, observed through the open doorway of the kitchen, a small scale atop the kitchen sink, upon which lay a brick-shaped package containing green leafy substance which he recognized as marijuana. The package of marijuana was used as evidence in prosecuting defendants for violation of the Narcotic Law. The admissibility of the package was challenged before the U.S. Supreme Court, which held, after observing that it was not unreasonable for the officer to walk to the doorway of the adjacent kitchen on seeing the defendant wife emerge therefrom, that "the discovery of the brick of marijuana did not constitute a search, since the officer merely saw what was placed before him in full view."[43] The U.S. Supreme Court ruled that the warrantless seizure of the marijuana was legal on the basis of the "plain view" doctrine and upheld the admissibility of the seized drugs as part of the prosecution's evidence.[44]
The "plain view" doctrine may not, however, be used to launch unbridled searches and indiscriminate seizures nor to extend a general exploratory search made solely to find evidence of defendant's guilt. The "plain view" doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object.[45] Furthermore, the U.S. Supreme Court stated the following limitations on the application of the doctrine:
In the instant case, the appellant was arrested and his person searched in the living room. Failing to retrieve the marked money which they hoped to find, the NARCOM agents searched the whole house and found the plastic bag in the kitchen. The plastic bag was, therefore, not within their "plain view" when they arrested the appellant as to justify its seizure. The NARCOM agents had to move from one portion of the house to another before they sighted the plastic bag. Unlike Ker v. California, where the police officer had reason to walk to the doorway of the adjacent kitchen and from which position he saw the marijuana, the NARCOM agents in this case went from room to room with the obvious intention of fishing for more evidence.
Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen, they had no clue as to its contents. They had to ask the appellant what the bag contained. When the appellant refused to respond, they opened it and found the marijuana. Unlike Ker v. California, where the marijuana was visible to the police officer's eyes, the NARCOM agents in this case could not have discovered the inculpatory nature of the contents of the bag had they not forcibly opened it. Even assuming then, that the NARCOM agents inadvertently came across the plastic bag because it was within their "plain view," what may be said to be the object in their "plain view" was just the plastic bag and not the marijuana. The incriminating nature of the contents of the plastic bag was not immediately apparent from the "plain view" of said object. It cannot be claimed that the plastic bag clearly betrayed its contents, whether by its distinctive configuration, its transparency, or otherwise, that its contents are obvious to an observer.[48]
We, therefore, hold that under the circumstances of the case, the "plain view" doctrine does not apply and the marijuana contained in the plastic bag was seized illegally and cannot be presented in evidence pursuant to Article III, Section 3(2) of the Constitution.
The exclusion of this particular evidence does not, however, diminish, in any way, the damaging effect of the other pieces of evidence presented by the prosecution to prove that the appellant sold marijuana, in violation of Article II, Section 4 of the Dangerous Drugs Act of 1972. We hold that by virtue of the testimonies of Sgt. Ani and T/Sgt. Belarga and the two wrappings of marijuana sold by the appellant to Sgt. Ani, among other pieces of evidence, the guilt of the appellant of the crime charged has been proved beyond reasonable doubt.
WHEREFORE, the appeal is DISMISSED and the judgment of the Regional Trial Court AFFIRMED.
SO ORDERED.
Gutierrez, Jr., (Chairman), Bidin, Davide, Jr., and Melo, JJ., concur.
[1] Penned by Judge Pelagio S. Mandi.
[2] Original Record, p. 1.
[3] Id., at 8.
[4] RTC Decision, pp. 2-5.
[5] RTC Decision, pp. 5-7.
[6] Id., at 11.
[7] TSN, pp. 18-19.
[8] Id., at 19.
[9] Id., at 19-20.
[10] Id., at 20.
[11] Id., at 21.
[12] Id., at 23.
[13] TSN, p. 23.
[14] Id., at 36.
[15] Id., at 23.
[16] Id., at 26.
[17] People v. Jaymalin, G.R. No. 90452, October 19, 1992 citing People v. Rodriguez, G.R. No. 81332, April 25, 1989, 172 SCRA 742. Contra People v. Ventura, G.R. No. 88670, November 19, 1992.
[18] People v. Simbulan, G.R. No. 100754, October 13, 1992.
[19] G.R. No. 76893, February 27, 1989, 170 SCRA 681, 689.
[20] G.R. No. 70998, October 14, 1986, 145 SCRA 50.
[21] G.R. No. 70998, October 14, 1986, 145 SCRA 50 at 62.
[22] TSN, pp. 55-56.
[23] TSN, p. 52.
[24] Id., at 52-53.
[25] Id., at 53.
[26] TSN, p. 53.
[27] Id., at 54.
[28] Id., at 55.
[29] Supra, note 22.
[30] People v. Santiago, G.R. No. 94472, March 3, 1992; See also People v. Paco, supra, note 19.
[31] TSN, p. 57.
[32] Ibid.
[33] Original Record, p. 26.
[34] G.R. No. L-19550, June 19, 1967, 20 SCRA 383.
[35] Article III, Section 3(2).
[36] 76 Phil. 637 (1946).
[37] Id., at 645.
[38] Moreno v. Ago Chi, 12 Phil. 439, 442 (1909). See also People v. Veloso, 48 Phil. 169 (1925).
[39] People v. Paco, supra, note 19.
[40] Marron v. United States, 275 U.S. 192, 72 L. Ed. 231 (1927).
[41] Harris v. United States, 390 U.S. 234, 19 L. Ed. 2d 1067 (1968).
[42] 374 U.S. 23, 10 L. Ed. 2d 726 (1963).
[43] Id., 10 L. Ed. 2d 744.
[44] Another case where the seizure of marijuana was held valid under the "plain view" doctrine is Washington v. Chrisman, 455 U.S. 1, 70 L. Ed. 2d 778 (1982).
[45] Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564 (1971).
[46] Id., 29 L. Ed. 2d 583. See also Texas v. Brown, 460 U.S. 730, 75 L. Ed. 2d 502 (1983).
[47] See concurring opinion by Stewart, Brennan, and White, JJ., in Stanley v. Georgia 394 U.S. 557, 22 L. Ed. 2d 542 (1969). See also Walter v. United States, 447 U.S. 649, 65 L. Ed. 2d 410 (1980).
[48] Robbins v. California, 453 U.S. 420, 69 L. Ed. 2d 744 (1981).
The information filed on December 15, 1989 against the appellant reads:
"That on or about December 14, 1989, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and there, wilfully, unlawfully and feloniously sell to one SGT. AMADO ANI, two (2) wrappers containing dried marijuana leaves, knowing the same to be a prohibited drug.Upon his arraignment on January 11, 1990, the appellant pleaded not guilty.[3]
CONTRARY TO LAW."[2]
At the trial, the prosecution presented three (3) witnesses, namely: (1) Sgt. Amado Ani, Jr. of the 9th Narcotics Command (NARCOM) of Zamboanga City, who acted as poseur-buyer in the buy?bust operation made against the appellant; (2) T/Sgt. Jesus Belarga, also of the 9th Narcotics Command of Zamboanga City, who was the NARCOM team leader of the buy-bust operation; and (3) Athena Elisa P. Anderson, the Document Examiner and Forensic Chemist of PC-INP Crime Laboratory of Regional Command (RECOM) 9. The evidence of the prosecution was summarized by the trial court as follows:
"Prosecution evidence shows that in the morning of December 13, 1989, T/Sgt. Jesus Belarga, leader of a NARCOTICS COMMAND (NARCOM) team based at Calarian, Zamboanga City, instructed Sgt. Amado Ani to conduct surveillance and test buy on a certain Mari Musa of Suterville, Zamboanga City. Information received from civilian informer was that this Mari Musa was engaged in selling marijuana in said place. So Sgt. Amado Ani, another NARCOM agent, proceeded to Suterville, in company with a NARCOM civilian informer, to the house of Mari Musa to which house the civilian informer had guided him. The same civilian informer had also described to him the appearance of Mari Musa. Amado Ani was able to buy one newspaper-wrapped dried marijuana (Exh. 'E') for P10.00. Sgt. Ani returned to the NARCOM office and turned over the newspaper-wrapped marijuana to T/Sgt. Jesus Belarga. Sgt. Belarga inspected the stuff turned over to him and found it to be marijuana.For the defense, the following testified as witnesses: (1) the accused-appellant Mari H. Musa; and (2) Ahara R. Musa, his wife. The trial court summarized the version of the defense, thus:
The next day, December 14, 1989, about 1:30 P.M., a buy-bust was planned. Sgt. Amado Ani was assigned as the poseur buyer for which purpose he was given P20.00 (with SN GA955883) by Belarga. The buy-bust money had been taken by T/Sgt. Jesus Belarga from M/Sgt. Noh Sali Mihasun, Chief of Investigation Section, and for which Belarga signed a receipt (Exh. 'L' & 'L-1'). The team under Sgt. Foncargas was assigned as back-up security. A pre-arranged signal was arranged consisting of Sgt. Ani's raising his right hand, after he had succeeded to buy the marijuana. The two NARCOM teams proceeded to the target site in two civilian vehicles. Belarga's team was composed of Sgt. Belarga, team leader, Sgt. Amado Ani, poseur buyer, Sgt. Lego and Sgt. Biong.
Arriving at the target site, Sgt. Ani proceeded to the house of Mari Musa, while the rest of the NARCOM group positioned themselves at strategic places about 90 to 100 meters from Mari Musa's house. T/Sgt. Belarga could see what went on between Ani and suspect Mari Musa from where he was. Ani approached Mari Musa, who came out of his house, and asked Ani what he wanted. Ani said he wanted some more stuff. Ani gave Mari Musa the P20.00 marked money. After receiving the money, Mari Musa went back to his house and came back and gave Amado Ani two newspaper wrappers containing dried marijuana. Ani opened the two wrappers and inspected the contents. Convinced that the contents were marijuana, Ani walked back towards his companions and raised his right hand. The two NARCOM teams, riding the two civilian vehicles, sped towards Sgt. Ani. Ani joined Belarga's team and returned to the house.
At the time Sgt. Ani first approached Mari Musa, there were four persons inside his house: Mari Musa, another boy, and two women, one of whom Ani and Belarga later came to know to be Mari Musa's wife. The second time, Ani with the NARCOM team returned to Mari Musa's house, the woman, who was later known as Mari Musa's wife, slipped away from the house. Sgt. Belarga frisked Mari Musa but could not find the P20.00 marked money with him. Mari Musa was then asked where the P20.00 was and he told the NARCOM team he has given the money to his wife (who had slipped away). Sgt. Belarga also found a plastic bag containing dried marijuana inside it somewhere in the kitchen. Mari Musa was then placed under arrest and brought to the NARCOM office. At Suterville, Sgt. Ani turned over to Sgt. Belarga the two newspaper-wrapped marijuana he had earlier bought from Mari Musa (Exhs. 'C' & 'D').
In the NARCOM office, Mari Musa first gave his name as Hussin Musa. Later on, Mari Musa gave his true name - Mari Musa. T/Sgt. Jesus Belarga turned over the two newspaper-wrapped marijuana (bought at the buy-bust), the one newspaper-wrapped marijuana (bought at the test-buy) and the plastic bag containing more marijuana (which had been taken by Sgt. Lego inside the kitchen of Mari Musa) to the PC Crime Laboratory, Zamboanga City, for laboratory examination. The turn-over of the marijuana specimen to the PC Crime Laboratory was by way of a letter-request, dated December 14, 1989 (Exh. 'B'), which was stamped 'RECEIVED' by the PC Crime Laboratory (Exh. 'B-1') on the same day.
Mrs. Athena Elisa P. Anderson, the Forensic Chemist of the PC Crime Laboratory, examined the marijuana specimens subjecting the same to her three tests. All submitted specimens she examined gave positive results for the presence of marijuana. Mrs. Anderson reported the results of her examination in her Chemistry Report D-100-89, dated December 14, 1989, (Exh. 'J', 'J-1', 'J-2', 'J-3', 'J-4' and 'J-5'). Mrs. Anderson identified in court the two newspaper wrapped marijuana bought at the buy-bust on December 14, 1989, through her initial and the weight of each specimen written with red ink on each wrapper (Exhs. 'C-1' and 'D-1'). She also identified the one newspaper-wrapped marijuana bought at the test-buy on December 13, 1989, through her markings (Exh. 'E-1'). Mrs. Anderson also identified her Chemistry Report (Exh. 'J' & sub-markings.)
T. Sgt. Belarga identified the two buy-bust newspaper wrapped marijuana through his initial, the words 'buy-bust' and the words 'December 14, 1989, 2:45 P.M.' (written on Exhs. 'C' and 'D'). Belarga also identified the receipt of the P20 marked money (with SN GA955883) (Exh. 'L'), dated December 14, 1989, and his signature thereon (Exh. 'L-1'). He also identified the letter-request, dated December 14, 1989, addressed to the PC Crime Laboratory (Exh. 'B') and his signature thereon (Exh. 'B-2') and the stamp of the PC Crime Laboratory marked 'RECEIVED' (Exh. 'B-1')."[4]
"[O]n December 14, 1989, at about 1:30 in the afternoon, Mari Musa was in his house at Suterville, Zamboanga City. With him were his wife, Ahara Musa, known as Ara, his one-year old child, a woman manicurist, and a male cousin named Abdul Musa. About 1:30 that afternoon, while he was being manicured at one hand, his wife was inside the one room of their house, putting their child to sleep. Three NARCOM agents, who introduced themselves as NARCOM agents, dressed in civilian clothes, got inside Mari Musa's house whose door was open. The NARCOM agents did not ask permission to enter the house but simply announced that they were NARCOM agents. The NARCOM agents searched Mari Musa's house and Mari Musa asked them if they had a search warrant. The NARCOM agents were just silent. The NARCOM agents found a red plastic bag whose contents, Mari Musa said, he did not know. He also did not know if the plastic bag belonged to his brother, Faisal, who was living with him, or his father, who was living in another house about ten arms-length away. Mari Musa, then, was handcuffed and when Mari Musa asked why, the NARCOM agents told him for clarification.After trial, the trial court rendered the assailed decision with the following disposition:
Mari Musa was brought in a pick-up, his wife joining him to the NARCOM Office at Calarian, Zamboanga City. Inside the NARCOM Office, Mari Musa was investigated by one NARCOM agent which investigation was reduced into writing. The writing or document was interpreted to Mari Musa in Tagalog. The document stated that the marijuana belonged to Mari Musa and Mari Musa was asked to sign it. But Mari Musa refused to sign because the marijuana did not belong to him. Mari Musa said he was not told that he was entitled to the assistance of counsel, although he himself told the NARCOM agents he wanted to be assisted by counsel.
Mari Musa said four bullets were then placed between the fingers of his right hand and his fingers were pressed which felt very painful. The NARCOM agents boxed him and Mari Musa lost consciousness. While Mari Musa was maltreated, he said his wife was outside the NARCOM building. The very day he was arrested (on cross-examination Mari Musa said it was on the next day), Mari Musa was brought to the Fiscal's Office by three NARCOM agents. The fiscal asked him if the marijuana was owned by him and he said "not." After that single question, Mari Musa was brought to the City Jail. Mari Musa said he did not tell the fiscal that he had been maltreated by the NARCOM agents because he was afraid he might be maltreated in the fiscal's office.
Mari Musa denied the NARCOM agents' charge that he had sold two wrappers of marijuana to them; that he had received from them a P20.00 bill which he had given to his wife. He did not sell marijuana because he was afraid that was against the law and that the person selling marijuana was caught by the authorities; and he had a wife and a very small child to support. Mari Musa said he had not been arrested for selling marijuana before.[5]
"WHEREFORE, finding accused Mari Musa y Hantatalu guilty beyond reasonable doubt of selling marijuana and pursuant to Sec. 4, Art II of Rep. Act No. 6425, he is sentenced to life imprisonment and to pay the fine of P20,000.00, the latter imposed without subsidiary imprisonment."[6]In this appeal, the appellant contends that his guilt was not proved beyond reasonable doubt and impugns the credibility of the prosecution witnesses.
The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not credible because: (1) prior to the buy-bust operation, neither Sgt. Ani nor the other NARCOM agents were personally known by the appellant or vice-versa; and (2) there was no witness to the alleged giving of the two wrappers of marijuana by the appellant to Sgt. Ani.
Sgt. Ani testified that on December 13, 1989, upon instruction by T/Sgt. Jesus Belarga, he conducted a test-buy operation on the appellant whereby he bought one wrapper of marijuana for P15.00 from the latter.[7] He reported the successful operation to T/Sgt. Belarga on the same day.[8] Whereupon, T/Sgt. Belarga conducted a conference to organize a buy-bust operation for the following day.[9]
On December 14, 1989, at 1:30 p.m., two NARCOM teams in separate vehicles headed by T/Sgt. Belarga and a certain Sgt. Foncardas went to the place of operation, which was the appellant's house located in Laquian Compound, Suterville, Zamboanga City. Sgt. Ani was with the team of T/Sgt. Belarga, whose other members were Sgts. Lego and Biong.[10] Sgt. Ani was given a marked P20.00 bill by T/Sgt. Belarga, which was to be used in the operation.
Upon reaching the place, the NARCOM agents positioned themselves at strategic places.[11] Sgt. Ani approached the house. Outside the house, the appellant asked Sgt. Ani what he wanted. Sgt. Ani asked him for some more marijuana.[12] Sgt. Ani gave him the marked P20.00 bill and the appellant went inside the house and brought back two paper wrappers containing marijuana which he handed to Sgt. Ani.[13] From his position, Sgt. Ani could see that there were other people in the house.[14]
After the exchange, Sgt. Ani approached the other NARCOM agents and made the pre-arranged signal of raising his right hand.[15] The NARCOM agents, accompanied by Sgt. Ani, went inside the house and made the arrest. The agents searched the appellant and unable to find the marked money, they asked him where it was. The appellant said that he gave it to his wife."[16]
The Court, after a careful reading of the record, finds the testimony of Sgt. Ani regarding the buy-bust operation, which resulted in the apprehension, prosecution and subsequent conviction of the appellant, to be direct, lucid and forthright. Being totally untainted by contradictions in any of the material points, it deserves credence.
The contention that the appellant could not have transacted with Sgt. Ani because they do not know each other is without merit. The day before the buy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought a wrapper of marijuana from the appellant. Through this previous transaction, Sgt. Ani was able to gain the appellant's confidence for the latter to sell more marijuana to Sgt. Ani the following day, during the buy-bust operation. Moreover, the Court has held that what matters is not an existing familiarity between the buyer and the seller, for quite often, the parties to the transaction may be strangers, but their agreement and the acts constituting the sale and delivery of the marijuana.[17]
The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was impossible for the appellant to sell marijuana while his wife, cousin and manicurist were present. But the place of the commission of the crime of selling prohibited drugs has been held to be not crucial[18] and the presence of other people apart from the buyer and seller will not necessarily prevent the consummation of the illegal sale. As the Court observed in People v. Paco,[19] these factors may sometimes camouflage the commission of the crime. In the instant case, the fact that the other people inside the appellant's house are known to the appellant may have given him some assurance that these people will not report him to the authorities.
The appellant, besides assailing Sgt. Ani's credibility, also questions the credibility of T/Sgt. Belarga. The appellant submits that since T/Sgt. Belarga admitted that he was about 90 meters away from Sgt. Ani and the appellant, he could not have possibly witnessed the sale. The appellant invokes People v. Ale[20] where the Court observed that from a distance of 10-15 meters, a policeman cannot distinguish between marijuana cigarette from ordinary ones by the type of rolling done on the cigarette sticks. And since T/Sgt. Belarga allegedly did not see the sale, the appellant contends that the uncorroborated testimony of Sgt. Ani can not stand as basis for his conviction.
People v. Ale does not apply here because the policeman in that case testified that he and his companion were certain that the appellant therein handed marijuana cigarettes to the poseur-buyer based on the appearance of the cigarette sticks. The Court rejected this claim, stating that:
"This Court cannot give full credit to the testimonies of the prosecution witnesses marked as they are with contradictions and tainted with inaccuracies.In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw the appellant hand over marijuana to Sgt. Ani. What he said was that there was an exchange of certain articles between the two. The relevant portion of T/Sgt. Belarga's testimony reads:[22]
Biñan testified that they were able to tell that the four cigarettes were marijuana cigarettes because according to him, the rolling of ordinary cigarettes are different from those of marijuana cigarettes. (tsn, November 13, 1984, p. 10)
It is however, incredible to believe that they could discern the type of rolling done on those cigarettes from the distance where they were observing the alleged sale of more or less 10 to 15 meters."[21]
Q Now, do you remember whether Sgt. Ani was able to reach the houseContrary to the contention of the appellant, it was not impossible for T/Sgt. Belarga to have seen, from a distance of 90-100 meters, Sgt. Ani hand to the appellant "something" and for the latter to give to the former "something."
of Mari Musa?
A Yes, ma'am.
Q After reaching Mari Musa, did you see what happened (sic)?
A Yes, ma'am.
Q Could you please tell us?
A From our vehicle the stainless owner type jeep where Sgt.
Lego,
Sgt. Biong were boarded, I saw that Sgt. Ani proceeded to the house near the road and he was met by one person and later known as Mari Musa who was at the time wearing short pants and later on I saw that Sgt. Ani handed something to him, thereafter received by Mari Musa and went inside the house and came back later and handed something to Sgt. Ani.
Notwithstanding the fact that T/Sgt. Belarga could not have been certain that what Sgt. Ani received from the appellant was marijuana because of the distance, his testimony, nevertheless, corroborated the direct evidence, which the Court earlier ruled to be convincing, presented by Sgt. Ani on the following material points: (1) T/Sgt. Belarga instructed Sgt. Ani to conduct a surveillance and test-buy operation on the appellant at Suterville, Zamboanga City on December 13, 1989;[23] (2) later that same day, Sgt. Ani went back to their office and reported a successful operation and turned over to T/Sgt. Belarga one wrapper of marijuana;[24] (3) T/Sgt. Belarga then organized a team to conduct a buy-bust operation the following day;[25] (4) on December 14, 1989, T/Sgt. Belarga led a team of NARCOM agents who went to Suterville, Zamboanga City;[26] (5) T/Sgt. Belarga gave a P20.00 marked bill to Sgt. Ani which was to be used in the buy-bust operation;[27] (6) upon the arrival of the NARCOM agents in Suterville, Zamboanga City, Sgt. Ani proceeded to the house of the appellant while some agents stayed in the vehicles and others positioned themselves in strategic places;[28] the appellant met Sgt. Ani and an exchange of articles took place.[29]
The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence given by Sgt. Ani. Additionally, the Court has ruled that the fact that the police officers who accompanied the poseur-buyer were unable to see exactly what the appellant gave the poseur-buyer because of their distance or position will not be fatal to the prosecution's case[30] provided there exists other evidence, direct or circumstantial, e.g., the testimony of the poseur-buyer, which is sufficient to prove the consummation of the sale of the prohibited drug.
The appellant next assails the seizure and admission as evidence of a plastic bag containing marijuana which the NARCOM agents found in the appellant's kitchen. It appears that after Sgt. Ani gave the pre-arranged signal to the other NARCOM agents, the latter moved in and arrested the appellant inside the house. They searched him to retrieve the marked money but didn't find it. Upon being questioned, the appellant said that he gave the marked money to his wife.[31] Thereafter, T/Sgt. Belarga and Sgt. Lego went to the kitchen and noticed what T/Sgt. Belarga described as a "cellophane colored white and stripe hanging at the corner of the kitchen."[32] They asked the appellant about its contents but failing to get a response, they opened it and found dried marijuana leaves. At the trial, the appellant questioned the admissibility of the plastic bag and the marijuana it contains but the trial court issued an Order ruling that these are admissible in evidence.[33]
Built into the Constitution are guarantees on the freedom of every individual against unreasonable searches and seizures by providing in Article III, Section 2, the following:
"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 witness he may produce, and particularly describing the place to be searched and the persons or things to be seized."Furthermore, the Constitution, in conformity with the doctrine laid down in Stonehill v. Diokno,[34] declares inadmissible, any evidence obtained in violation of the freedom from unreasonable searches and seizures.[35]
While a valid search warrant is generally necessary before a search and seizure may be effected, exceptions to this rule are recognized. Thus, in Alvero v. Dizon,[36] the Court stated that "[t]he most important exception to the necessity for a search warrant is the right of search and seizure as an incident to a lawful arrest."[37]
Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless search and seizure incident to a lawful arrest, thus:
SEC. 12. Search incident to lawful arrest. -- A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant.There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting officer to make a search upon the person of the person arrested. As early as 1909, the Court has ruled that "[a]n officer making an arrest may take from the person arrested any money or property found upon his person which was used in the commission of the crime or was the fruit of the crime or which might furnish the prisoner with the means of committing violence or of escaping, or which may be used as evidence in the trial of the cause..."[38] Hence, in a buy-bust operation conducted to entrap a drug-pusher, the law enforcement agents may seize the marked money found on the person of the pusher immediately after the arrest even without arrest and search warrants.[39]
In the case at bar, the NARCOM agents searched the person of the appellant after arresting him in his house but found nothing. They then searched the entire house and, in the kitchen, found and seized a plastic bag hanging in a corner.
The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend beyond the person of the one arrested to include the premises or surroundings under his immediate control.[40] Objects in the "plain view" of an officer who has the right to be in the position to have that view are subject to seizure and may be presented as evidence.[41]
In Ker v. California,[42] police officers, without securing a search warrant but having information that the defendant husband was selling marijuana from his apartment, obtained from the building manager a passkey to defendants' apartment, and entered it. There they found the defendant husband in the living room. The defendant wife emerged from the kitchen, and one of the officers, after identifying himself, observed through the open doorway of the kitchen, a small scale atop the kitchen sink, upon which lay a brick-shaped package containing green leafy substance which he recognized as marijuana. The package of marijuana was used as evidence in prosecuting defendants for violation of the Narcotic Law. The admissibility of the package was challenged before the U.S. Supreme Court, which held, after observing that it was not unreasonable for the officer to walk to the doorway of the adjacent kitchen on seeing the defendant wife emerge therefrom, that "the discovery of the brick of marijuana did not constitute a search, since the officer merely saw what was placed before him in full view."[43] The U.S. Supreme Court ruled that the warrantless seizure of the marijuana was legal on the basis of the "plain view" doctrine and upheld the admissibility of the seized drugs as part of the prosecution's evidence.[44]
The "plain view" doctrine may not, however, be used to launch unbridled searches and indiscriminate seizures nor to extend a general exploratory search made solely to find evidence of defendant's guilt. The "plain view" doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object.[45] Furthermore, the U.S. Supreme Court stated the following limitations on the application of the doctrine:
"What the 'plain view' cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification -- whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused--and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the 'plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges."[46]It has also been suggested that even if an object is observed in "plain view," the "plain view" doctrine will not justify the seizure of the object where the incriminating nature of the object is not apparent from the "plain view" of the object.[47] Stated differently, it must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband, or otherwise subject to seizure.
In the instant case, the appellant was arrested and his person searched in the living room. Failing to retrieve the marked money which they hoped to find, the NARCOM agents searched the whole house and found the plastic bag in the kitchen. The plastic bag was, therefore, not within their "plain view" when they arrested the appellant as to justify its seizure. The NARCOM agents had to move from one portion of the house to another before they sighted the plastic bag. Unlike Ker v. California, where the police officer had reason to walk to the doorway of the adjacent kitchen and from which position he saw the marijuana, the NARCOM agents in this case went from room to room with the obvious intention of fishing for more evidence.
Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen, they had no clue as to its contents. They had to ask the appellant what the bag contained. When the appellant refused to respond, they opened it and found the marijuana. Unlike Ker v. California, where the marijuana was visible to the police officer's eyes, the NARCOM agents in this case could not have discovered the inculpatory nature of the contents of the bag had they not forcibly opened it. Even assuming then, that the NARCOM agents inadvertently came across the plastic bag because it was within their "plain view," what may be said to be the object in their "plain view" was just the plastic bag and not the marijuana. The incriminating nature of the contents of the plastic bag was not immediately apparent from the "plain view" of said object. It cannot be claimed that the plastic bag clearly betrayed its contents, whether by its distinctive configuration, its transparency, or otherwise, that its contents are obvious to an observer.[48]
We, therefore, hold that under the circumstances of the case, the "plain view" doctrine does not apply and the marijuana contained in the plastic bag was seized illegally and cannot be presented in evidence pursuant to Article III, Section 3(2) of the Constitution.
The exclusion of this particular evidence does not, however, diminish, in any way, the damaging effect of the other pieces of evidence presented by the prosecution to prove that the appellant sold marijuana, in violation of Article II, Section 4 of the Dangerous Drugs Act of 1972. We hold that by virtue of the testimonies of Sgt. Ani and T/Sgt. Belarga and the two wrappings of marijuana sold by the appellant to Sgt. Ani, among other pieces of evidence, the guilt of the appellant of the crime charged has been proved beyond reasonable doubt.
WHEREFORE, the appeal is DISMISSED and the judgment of the Regional Trial Court AFFIRMED.
SO ORDERED.
Gutierrez, Jr., (Chairman), Bidin, Davide, Jr., and Melo, JJ., concur.
[1] Penned by Judge Pelagio S. Mandi.
[2] Original Record, p. 1.
[3] Id., at 8.
[4] RTC Decision, pp. 2-5.
[5] RTC Decision, pp. 5-7.
[6] Id., at 11.
[7] TSN, pp. 18-19.
[8] Id., at 19.
[9] Id., at 19-20.
[10] Id., at 20.
[11] Id., at 21.
[12] Id., at 23.
[13] TSN, p. 23.
[14] Id., at 36.
[15] Id., at 23.
[16] Id., at 26.
[17] People v. Jaymalin, G.R. No. 90452, October 19, 1992 citing People v. Rodriguez, G.R. No. 81332, April 25, 1989, 172 SCRA 742. Contra People v. Ventura, G.R. No. 88670, November 19, 1992.
[18] People v. Simbulan, G.R. No. 100754, October 13, 1992.
[19] G.R. No. 76893, February 27, 1989, 170 SCRA 681, 689.
[20] G.R. No. 70998, October 14, 1986, 145 SCRA 50.
[21] G.R. No. 70998, October 14, 1986, 145 SCRA 50 at 62.
[22] TSN, pp. 55-56.
[23] TSN, p. 52.
[24] Id., at 52-53.
[25] Id., at 53.
[26] TSN, p. 53.
[27] Id., at 54.
[28] Id., at 55.
[29] Supra, note 22.
[30] People v. Santiago, G.R. No. 94472, March 3, 1992; See also People v. Paco, supra, note 19.
[31] TSN, p. 57.
[32] Ibid.
[33] Original Record, p. 26.
[34] G.R. No. L-19550, June 19, 1967, 20 SCRA 383.
[35] Article III, Section 3(2).
[36] 76 Phil. 637 (1946).
[37] Id., at 645.
[38] Moreno v. Ago Chi, 12 Phil. 439, 442 (1909). See also People v. Veloso, 48 Phil. 169 (1925).
[39] People v. Paco, supra, note 19.
[40] Marron v. United States, 275 U.S. 192, 72 L. Ed. 231 (1927).
[41] Harris v. United States, 390 U.S. 234, 19 L. Ed. 2d 1067 (1968).
[42] 374 U.S. 23, 10 L. Ed. 2d 726 (1963).
[43] Id., 10 L. Ed. 2d 744.
[44] Another case where the seizure of marijuana was held valid under the "plain view" doctrine is Washington v. Chrisman, 455 U.S. 1, 70 L. Ed. 2d 778 (1982).
[45] Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564 (1971).
[46] Id., 29 L. Ed. 2d 583. See also Texas v. Brown, 460 U.S. 730, 75 L. Ed. 2d 502 (1983).
[47] See concurring opinion by Stewart, Brennan, and White, JJ., in Stanley v. Georgia 394 U.S. 557, 22 L. Ed. 2d 542 (1969). See also Walter v. United States, 447 U.S. 649, 65 L. Ed. 2d 410 (1980).
[48] Robbins v. California, 453 U.S. 420, 69 L. Ed. 2d 744 (1981).