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

The trial court erred in holding that the seized items were admissible in evidence. It erred in not upholding the doctrine of the “fruit of the poisonous tree”. The two [2] foregoing errors are discussed jointly below, they being interrelated.

Evidence that is acquired illegally by police officers [in violation of the constitutional, human and statutory rights of an accused] are inadmissible in evidence.

Sec. 2, Art. III, Bill of Rights, 1987 Constitution provides that “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”.

Section 3 of Article III of the 1987 Constitution provides that “any evidence obtained in violation of this or the preceding section shall be INADMISSIBLE FOR ANY PURPOSE IN ANY PROCEEEDING.”

In the case of DANILO VILLANUEVA Y ALCARAZ VS. PEOPLE OF THE PHILIPPINES, G.R. No. 199042, November 17, 2014, the Supreme Court held that although the appellant was estopped from questioning the legality of his arrest because he failed to file a motion to quash the Information, nonetheless, a waiver of an illegal arrest is not a waiver of an illegal search, thus:

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

The Supreme Court enumerated in the aforecited case the recognized instances where warrantless searches and seizures may be done by law enforcers:

(1) search of a moving vehicle;

(2) seizure in plain view;

(3) customs search;

(4) waiver or consented search;

(5) stop-and-frisk situation;

(6) search incidental to a lawful arrest and

(7) exigent and emergency circumstance. ⁠

Note that in the case of the herein appellant xxx, the contents of the tubular plastic container were NOT IN PLAIN VIEW because the container was nontransparent or opaque. The contents thereof could not be seen without first forcibly seizing and searching the container. That was exactly what happened in the instant case. The xxx policemen approached the appellant Deseo and his companions while they were drinking softdrinks in front of a store. The seizing officer xxx demanded that the appellant Deseo give to him the tubular container. The appellant xxx refused. Psywar threat and force were applied by the police. They forcibly pulled from the appellant xxx the tubular container that he was allegedly holding. They opened it. Then, they arrested him and his two companions. There was no probable cause to search and to arrest. A tip from an asset is not “personal knowledge”. Neither is it “probable cause.”

In the aforecited jurisprudence, the Supreme Court held:

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

Consent must also be voluntary to validate an otherwise illegal search; that is, the consent must be unequivocal, specific, intelligently given, and uncontaminated by any duress or coercion. In this case, petitioner was merely “ordered” to take out the contents of his pocket.”

The Supreme Court held in the aforecited jurisprudence that the evidence obtained was not admissible. It was a case of a seizure of a “fruit of a poisonous tree.” It was inadmissible in evidence, citing Sec. 3 [2], Art. III, Bill of Rights, of the 1987 Constitution.

“Having been obtained through an unlawful search, the seized item is thus inadmissible in evidence against accused-appellant. Obviously, this is an instance of seizure of the “fruit of the poisonous tree.” Hence, the confiscated item is inadmissible in evidence consonant with Article III, Section 3(2) of the 1987 Constitution: “Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.” ⁠ Without the seized item, therefore, the conviction of accused-appellant cannot be sustained. This being the case, we see no more reason to discuss the alleged lapses of the officers in the handling of the confiscated drug.”