EDWIN CADUA

G.R. No. 123123           August 19, 1999

EDWIN CADUA, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

QUISUMBING, J.:

On appeal by certiorari are the Decision¹ of the Court of Appeals in CA-G.R. No. 16312, promulgated on June 30, 1995, and the subsequent Resolution² dated December 15, 1995, denying petitioner's motion for reconsideration.

The appellate court's decision affirmed in toto the judgment of the Regional Trial Court of Quezon City in Criminal Case No. Q-92-27261,³ which disposed of the case as follows:

WHEREFORE, in view of the foregoing, this Court finds the accused Edwin Cadua guilty beyond reasonable doubt of the crime charge (sic) against him, and hereby sentences him to suffer an indeterminate penalty of 12 years 5 months and 10 days of Reclusion Temporal as Minimum to 17 years, 4 months and 1 day of Reclusion Temporal as Maximum, and to pay the cost. The accused is entitled to the benefits of the provision of Article 29 of the Revised Penal Code, as amended, provided he does not fall within the exceptions thereof.

SO ORDERED.⁴

This case stemmed from a charge for Illegal Possession of Firearms. The Information reads:

The undersigned Assistant City Prosecutor accuses EDWIN CADUA Y QUINTAYO of (sic) violation of PD 1866 (Illegal Possession of Firearms and Ammunitions), committed as follows:

That on or about the 2nd day of January, 1992, in Quezon City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without any authority in law, did then and there wilfully, unlawfully and feloniously have in his possession and under his control and custody one (1) .38 cal. revolver "Smith and Wesson" paltik, brown finished and wooden handle with four (4) live ammunitions, without first having obtained the proper license therefor from the proper authorities.

Contrary to law.⁵

Assisted by counsel de oficio, petitioner was arraigned in open court, waived the reading of the Information, and entered a plea of not guilty.⁶

As culled from the records, the following factual and procedural antecedents are pertinent to this appeal.

In the evening of January 2, 1992, between 6:30 and 7:00 in the evening, PO3 Joselito Burdeos and companions, all assigned with the Central Police District in Quezon City, were aboard mobile unit 118 patrolling the vicinity of Fairview, Quezon City. Their tour of duty was from 3:00 p.m. to 11:00 p.m. While deployed, they received a radio dispatch requesting them to proceed to Lot 10 Block 14, Alden Street, North Fairview. Said dispatch was based on a report concerning an alleged holdup of complainants Lourdes Bulos and her daughter Bernadette, who were in need of police assistance.⁷

At said address, police officers found both complainants who stated that the alleged holduppers had just fled. PO3 Burdeos asked where the robbery took place. Complainants replied that they were held up by two (2) men at the corner of Archer and Regalado Streets, near their house. The police officers also asked in what direction the alleged holduppers fled and what they were wearing. Then, the police officers requested the complainants to board the patrol unit in order to facilitate the search for the two (2) men.⁸ As they were patrolling around the area, complainants informed the police officers that one of the suspects was dressed in jeans and a t-shirt while the other was dressed in a black top and black pants The police officers then noticed two (2) men walking alongside the street and as the officers slowed down the mobile unit to get a closer look, the complainants identified the men as the alleged holduppers, one of which is the petitioner in this case. The police officers slowed down to a stop, alighted from the vehicle, and called out to the suspects. As Burdeos was approaching the suspects, he noticed that petitioner Cadua was about to pull something which was tucked at the right side of his waist. Burdeos promptly pointed his firearm at Cadua and warned him not to move. He then frisked Cadua and found in his possession a .38 caliber "paltik" revolver. PO3 Reynoso Bacnat the apprehended Cadua's companion, who was later identified as Joselito Aguilar. In Aguilar's possession was found a fan knife.⁹

Verification with the Firearms and Explosives Unit revealed that petitioner-accused Edwin Cadua is not a valid license holder of a .38 caliber "paltik" revolver.¹⁰

Originally, Chief Inspector Herminigildo Faustino referred to the City Prosecutor's Office for investigation the cases of Robbery, Violation of PD 1866 (Illegal Possession of Firearms) and Violation of PD 5121 (Concealment of a Deadly Weapon).¹¹ However, Assistant City Prosecutor Edgardo Paragua by resolution dated January 6, 1992, found only the case for Illegal Possession of Firearms warranting the filing of an Information. According to Prosecutor Paragua, during the investigation for robbery, complainants manifested their doubts as to the identity of the respondents, hence he set this matter for further investigation. As to the charge for Violation of City Ordinance 5121 against Aguilar, for concealment of a deadly weapon, it was found that there was sufficient evidence to warrant the filing of an Information against him. But, considering that said violation falls under the Rules of Summary Procedure, it could not be included in the Information¹² for alleged possession of firearms, which concerned only herein petitioner. On the same day that this Resolution by Prosecutor Paragua was released, the Information against petitioner was filed.¹³

On arraignment, petitioner pleaded not guilty. Trial on the merits ensued, resulting in his conviction.¹⁴

Petitioner seasonably appealed to the Court of Appeals, which affirmed the decision of the trial court. The CA ruled that the warrantless arrest of petitioner was based on probable cause and that the police officers had personal knowledge of the fact which led to his arrest. The subsequent search was therefore an incident to the arrest, making the firearm found in his possession admissible in evidence. Moreover, the CA stated that the positive declaration of prosecution witness Joselito Burdeos, that the .38 "paltik" revolver was found in petitioner's possession, already proved one of the essential elements of the crime of Illegal Possession of Firearms.¹⁵ The CA further held that:

. . . As between the positive declaration of prosecution eyewitness and only the negative assertion of accused-appellant, the former deserves more credence and is entitled to greater evidentiary weight. (People vs. Regalario, 220 SCRA 368) Besides, courts generally give full faith and credence to testimony of police officers as they are presumed to have acted in the performance of official duty in a regular manner. (People vs. Cabisada, 226 SCRA 383) Moreover, accused-appellant has not imputed any ill motive on the said prosecution witnesses as to why they would testify against him, except to tell the truth. (People vs. Lizada, 225 SCRA 708)¹⁶

Petitioner now comes before us on certiorari under Rule 45 of the Rules of Court, assigning the following errors:

THE COURT OF APPEALS ERRED IN AFFIRMING THE CONVICTION AND NOT REVERSING THE SAME.

THE COURT OF APPEALS ERRED IN RULING THAT THE "PALTIK" WAS RECOVERED IN AN INCIDENTAL SEARCH DURING A WARRANTLESS ARREST MADE BY THE POLICE OFFICERS, HENCE ADMISSIBLE IN EVIDENCE.

THE COURT OF APPEALS ERRED IN BELIEVING THE TESTIMONY OF THE POLICE OFFICERS WHEN IT IS CLEAR THAT THE APPREHENSION OF THE ACCUSED WAS ILLEGAL AND THAT THE FILING OF THE CHARGES FOR ILLEGAL POSSESSION OF FIREARMS IS BUT AN AFTERTHOUGHT SINCE THE PRIVATE COMPLAINANT ADMITTED THAT THE ACCUSED CADUA WAS NOT THE HOLDUPPER.

THE COURT OF APPEALS ERRED IN NOT ACQUITTING THE ACCUSED BASED ON REASONABLE DOUBT.¹⁷

Discussion of petitioner's assignment of errors may first be subsumed into one principal inquiry: whether or not his right to be protected from any unlawful warrantless arrest has been violated. According to petitioner, since his arrest is null and void, the search conducted by the police officers as an incident to his arrest is likewise defective. In support of his claim, petitioner seeks to invoke his constitutional right to be secure against unreasonable searches and seizures,¹⁸ and the corresponding prohibition against admitting into evidence anything obtained in violation of such right.¹⁹

Petitioner further claims that the police officers incorrectly premised their action on the instances provided for in warrantless arrests. He adds that since the complainants later on disclaimed petitioner's identity as the holdupper and that no case of robbery was filed against him, any probable cause or personal knowledge thereof, alleged by the arresting officers, had been totally negated. Thus, petitioner now posits that, absent probable cause or personal knowledge by the arresting officers, the arrest and the incidental search are illegal; hence, the "paltik" they seized is inadmissible in evidence.²⁰ According to petitioner, despite lack of probable cause, he was still arrested because "[k]nowing that the police officers committed a blunder they concocted a story that they were able to recover a "paltik" from the accused, so that even if the accused is free from the robbery charge they can still keep him for alleged possession of firearms.²¹

"When police officers realized that they caught the wrong persons, they would not [have] to (sic) go home "empty handed","²² petitioner asserts. In order to bolster his claim of innocence, he cites findings on record which showed that he was negative for powder burns, although the "paltik" at the time of its confiscation was positive for gun powder residue.²³

Respondents, through the Office of the Solicitor General (OSG), maintain that the search was an incident to a lawful arrest. Ergo, they assert that the .38 "paltik" revolver recovered from petitioner is admissible in evidence. They add that petitioner's denials cannot prevail over the positive testimony of PO3 Burdeos. The finding that petitioner was negative for powder burns is immaterial, according to respondents.1âwphi1.nêt

Both the trial and appellate courts, according to respondents, found that at the time that petitioner was arrested, the police officers had probable cause to arrest him based on the information which was given by the complainants. Petitioner Cadua and his companion, Aguilar, were positively identified by both complainants (mother and daughter) as the perpetrators of the robbery even before the police officers alighted from the car to approach petitioner and his companion, according to respondents. When the police officers effected the arrest, they already hall probable cause and personal knowledge that petitioner was a suspect in an offense just committed. As a logical consequence, according to respondents, the search incidental to the arrest is valid, and the revolver recovered admissible in evidence.²⁴

According to the Solicitor General, apart from the warrantless arrest covered under Section 5 (b), Rule 113 of the Rules of Court, wherein an offense has just been committed and the arresting person has personal knowledge of such offense, warrantless arrest is also provided for under paragraph (a) of the aforementioned section, that is, when in the presence of the arresting officer, the person is actually committing, or is attempting to commit, an offense.

In this case, at the time petitioner was called by PO3 Burdeos, petitioner was actually committing an offense when he made an attempt to pull the revolver which was tucked in his waist, according to the respondents. Taking this circumstance into account, they add, the search and seizure are valid and lawful for being incidental to the warrantless arrest.²⁵

Petitioner's denial regarding possession of the .38 "paltik" revolver has no independent support nor corroboration, according to respondents. On this matter, the Solicitor General comments as follows:

. . . PO3 Burdeos clearly testified that he saw the .38 paltik revolver in the possession of petitioner when he arrested the latter. Thus, petitioner's defense of denial, which is uncorroborated and self-serving negative evidence, cannot be given greater weight than the declaration of PO3 Burdeos who testified on affirmative matters (People vs. Ballagan, 247 SCRA 535). Moreover, no proof was shown that the arresting officers had improper or ill motive to testify falsely against petitioner. Accordingly, PO3 Burdeos' testimony should be given full faith and credit (People vs. Gazmen, 247 SCRA 414). Besides, as an arresting officer who is duty-bound to enforce the law, PO3 Burdeos is presumed to have regularly performed his official duty (Section 3 [m], Rule 131 of the Rules of Court; People vs. Basilgo, 235 SCRA 191; People vs. Pacleb, 217 SCRA 92).²⁶

Lastly, respondents refute petitioner's arguments that the negative findings of gun powder residue should be taken to mean that he did not have possession of the gun. Whether or not petitioner fired the gun is not pertinent to the charge of illegal possession of firearms, respondents argue. It does not follow that just because a person is found negative for powder burns, he did not fire a gun, they add. They also cite the findings that even if one has just fired a gun, he may be negative for nitrates.²⁷

From a careful study of the records of this case, we find no cogent reason to disturb the findings by the trial court as affirmed by the appellate court. Petitioner's declaration that the police officers trumped up a charge of illegal possession just so that they would "not go home empty-handed" is far from persuasive. Findings of the trial court as to the credibility of the testimonies of the prosecution and the lone testimony of the defense deserve, in our view, great weight. Jurisprudence has consistently held that, in the absence of any clear showing that the trial court overlooked, misunderstood or misapplied some facts or circumstances of weight or substance which could have affected the result of the case, its findings on the credibility of witnesses are entitled to the highest degree of respect and will not be disturbed on appeal.²⁸ Furthermore, the presumption of regularity in the performance of official duty²⁹ strengthens the foregoing doctrine on the credibility of witnesses. The uncorroborated claim of the accused that he had been framed³⁰ is, to our mind, self-serving as well as baseless.

Considering the circumstances in this case, we find that there was sufficient reason to justify a warrantless arrest of petitioner for illegal possession of firearms. Section 5 of Rule 113 of the Rules of Court, provides that:

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 paragraph (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.

The findings of the trial court, accepted by the appellate court, show the pertinence of paragraphs (a) and (b) of Section 5 abovecited. Through police dispatch to the scene of a crime report and in the presence of complainants, it was ascertained that a robbery had just been committed, and the arresting officers had personal knowledge that petitioner was directly implicated as a suspect. As explained by a respected authority on criminal procedure:

It has been ruled that "personal knowledge of facts", in arrests without warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion. . . . Peace officers may pursue and arrest without warrant any person found in suspicious places or under suspicious circumstances reasonably tending to show that such person has committed, or is about to commit, any crime or breach of the peace. Probable cause for an arrest without warrant is such a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves as to warrant a reasonable man in believing the accused to be guilty. Besides reasonable ground of suspicion, action in good faith is another protective bulwark for the officer. Under such conditions, even if the suspected person is later found to be innocent, the peace officer is not liable. The cases hold that a peace officer might arrest and detain in prison for examination persons walking in the street at night whom there is reasonable ground to suspect of felony, although there is no proof of a felony having been committed; but the arrest would be illegal if the person so arrested was innocent and there were no reasonable grounds of suspicion to mislead the officer. The reason of the rule is apparent. Good people do not ordinarily lurk about the streets and uninhabited premises at midnight. Citizens must be protected from annoyance and crime. Prevention of crime is just as commendatory as the capture of criminals. Surely the officer must not be forced to await the commission of robbery or other felony, The rule is supported by the necessities of life.³¹

Petitioner could not dispute that there was an initial report to the police concerning the robbery. A radio dispatch was then given to the arresting officers, who proceeded to Alden Street to verify the authenticity of the radio message. When they reached said place, they met up with the complainants who initiated the report about the robbery. Upon the officers' invitation, both mother and daughter boarded the mobile unit to join them in conducting a search of the nearby area. The accused was spotted in the vicinity. Based on the reported statements of complainants, he was identified as a logical suspect in the offense just committed.

Moreover, at that time that PO3 Burdeos called out to petitioner, the latter was on the act of drawing out his "paltik" revolver. Burdeos' testimony on this matter reads:

WITNESS:

We alighted and approached and we noticed that there is something the accused is trying to hide and also trying to pull out.

FISCAL:

Was he able to pull that something?

WITNESS:

No.

FISCAL:

And, what was that?

WITNESS:

The .38 paltik.

FISCAL:

When you saw [that] what did you do . . . when you saw the accused pulling out that .38 paltik?

WITNESS:

I pointed [at] him my gun [then] shouted "don't move or I'll shoot!"³²

Nothing in petitioner's testimony successfully rebuts Burdeos' narration. Actual possession of an unlicensed firearm, which petitioner attempted to draw out, by itself, amounts to committing an offense in the presence of the arresting officer contemplated in paragraph (a), Section 5 of the abovementioned Rule.

The fact that the robbery case was never brought to trial does not mean that the legality of the arrest was tainted, for such arrest does not depend upon the indubitable existence of the crime.³³ It is not necessary that the crime should have been established as a fact in order to regard the detention as legal. The legality of apprehending the accused would not depend on the actual commission of the crime but upon the nature of the deed, where from such characterization it may reasonably be inferred by the officer or functionary to whom the law at the moment leaves the decision for the urgent purpose of suspending the liberty of the citizen.³⁴ Furthermore, the Court acknowledges that police authorities can stop a person forcibly when such action is based on something more than a mere "reasonable and articulable" suspicion that such a person has been engaged in criminal activity.³⁵ All told, the arresting officers reasonably acted upon personal knowledge at the time, and not on unreliable hearsay information,³⁶ to effect a lawful arrest.

That the victims of the reported robbery failed to pursue a formal complaint is not decisive in this case. What is material is that the officers acted in response to the events which had just transpired and called for the appropriate police response. As to the element of personal knowledge, the officers could not be faulted. It is not correct to say they acted without observing standards of reasonableness and probable cause. They responded promptly to a legitimate complaint of the victims and they had a reasonable suspicion that the persons pointed out at the scene were the perpetrators of the offense. This in itself is sufficient justification for the officers to call the attention of the accused at that point in time when he was identified as a suspect by the complainants.

The reason which prompted complainants to refrain from identifying the accused during the examination by the police regarding the robbery is not determinative of the resolution of the present case. It bears stressing that the case now before us is for the illegal possession of firearms, and not for the robbery. Petitioner proceeds from a wrong premise when, in support of his assigned errors, he argues that the arrest and the search should be considered invalid merely because the robbery charge was never formally filed and prosecuted. In Rabaja vs. Court of Appeals,³⁷ a Department of Environment and Natural Resources employee, Rabaja, was charged with and convicted of Illegal Possession of Firearms even though the private complainant whom he threatened eventually dropped the charges against him. The charge for illegal possession was pursued by the authorities.

Petitioner avers that complainants "admitted that accused was not the holdupper".³⁸ A perusal of the records shows no such admission. The resolution, issued by Assistant City Prosecutor Paragua in the robbery case, stated that no information could yet be filed because complainants manifested doubts as to the identity of their assailants.³⁹ The resolution should not be taken to mean an admission that petitioner Cadua had been totally ruled out as a suspect in the crime. If petitioner wanted to impress the Court that even on probable cause he could not be accosted, then that impression is inaccurate and wrong. On cross-examination, petitioner himself did not object to the question but admitted the fact that the complaint was withdrawn, but not for the reason that he was ruled out as the person who committed the offense.⁴⁰

Given the circumstances in this case, we are constrained to affirm the finding below that the warrantless arrest of petitioner is lawful. We also agree that the incidental search and subsequent seizure of the unlicensed firearm in question is likewise lawful and valid pursuant to Section 12, Rule 126 of the Rules of Court, to wit:

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.

Noteworthy, among the exceptions to the necessity for a search warrant is the right of search and seizure as an incident to a lawful arrest. A lawful arrest may be made either while a crime is actually being committed, or soon after its commission. The right to search includes in these instances that of searching the person of one who is arrested, in order to find and seize things connected with the crime as its fruits or as the means for its commission.⁴¹

When petitioner was searched contemporaneously with the arrest, the "paltik" was found in his possession, and seized. Such seizure cannot be considered unlawful nor unreasonable. Moreover, at that moment of search and seizure, there was in the mind of the arresting officer more than a mere suspicion that petitioner was armed. Petitioner's movements clearly suggested the presence of a weapon tucked at the side of his waist. The fact that Burdeos made an immediate draw for his service revolver was an instinctive response to petitioner's actions which, under the circumstances, indicated a high probability of an offensive attack with lethal weapon.

Petitioner's counsel mistakenly relies on the case of People vs. Aminnudin.⁴² In said case, Aminnudin was acquitted on the charge of illegally transporting marijuana because the Court found that the search could not be considered an incident to a lawful arrest considering that the circumstances did not come under the exceptions provided for by applicable law and the Rules of Court. It was therein held that the warrantless arrest and the subsequent search were illegal, hence the evidence thereby obtained was inadmissible. However, Aminnudin differs radically from the case now before us. In Aminnudin, "[i]t is clear that they had at least two days within which they could have obtained a warrant to arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was identified. And from the information they had received they could have persuaded a judge that there was probable cause, indeed to justify the issuance of a warrant."⁴³

A situation involving a surveillance mission like that of Aminnudin could not compare to that of an unexpected crime of holdup-robbery. Police behavior in the latter case would necessitate a different course of action as well as different rules of engagement, compared to the former. In the case now before us, there is no supervening event, much less considerable amount of time between reaching the scene of the crime and the actual apprehension of the suspect.

Furthermore, in accordance with settled jurisprudence, any objection, to the arrest, or question concerning the defect or irregularity attending an arrest must be made before the accused enters his plea.⁴⁴ The records in this case shows no such objection to the arrest, nor any question as to the irregularity of his arrest, raised by petitioner.1âwphi1.nêt

Petitioner's arrest having been found valid and the seizure of the firearms lawful, we now focus on the second issue for resolution, whether or not petitioner is liable for the offense of illegal possession of firearms?

Here two elements must be proved: (a) positively, the existence of the subject firearm, and (b) negatively, the fact that the accused did not have a license or permit to possess the same.⁴⁵ We find both elements present in this case.

First, testimony of witnesses on record affirms that the "paltik" revolver was taken from the person of petitioner at the time he was arrested. Further SPO1 Cesar Gabitan, of the Firearms and Explosive Unit, testified without contradiction that petitioner had no license or permit to possess the gun.⁴⁶ This Court has ruled in several cases that either the testimony of a representative of, or a certification from, the Philippine National Police-Firearms and Explosives Office (PNP-FEO) attesting that a person is not a licensee of any firearm suffices to prove beyond reasonable doubt the second element of illegal possession of firearms.⁴⁷

Petitioner's claim that since he was found negative for gun powder burns, he should be held innocent and acquitted of the charge, considering that the "paltik" at the time of its confiscation was positive for gun powder residue, does not quite add up logically. The appellate court's holding on the matter deflates petitioner's defense:

Neither do [w]e find accused-appellant's assertion that he was negative for gun powder burns to be relevant in this case. Whether or not accused-appellant fired the gun in question does not erase his offense of illegally possessing the said gun. Besides, being negative of gunpowder burns does not necessarily mean that accused-appellant has not fired the gun. . . .

x x x           x x x           x x x

As stated by the trial court:

On questioning by the Court, witness cited several factors wherein a person who has fired his firearm but was negative for nitrates; the type of caliber of the ammunition of the firearm itself; a new firearm or revolver type would be so close that nitrates could not escape from the bridge of the gun, whereas an old firearm where the mechanism is already a little bit loose, more nitrates appear on the subject who fired the gun; the direction of the wind if the subject is firing the firearm against the target, the nitrates will be blown away from the scene and so he would also be negative of nitrates; depending on the velocity of the wind, humidity of the area where the shooting happened; in a closed room or place and [where] there is no wind on or against the firearm, he could be positive for nitrates; whereas outside the room he would be negative and the less humid area the less fall of nitrates on the subject, and another possibility is if the subject is using something to cover his hand firing the gun it would be negative for nitrates and in using a .45 caliber gun, which has a close and tight compartment where the bullet is set and with the revolver type firearm which has an open chamber, the former has a greater possibility that he would be negative for nitrates.⁴⁸

The penalty imposed upon petitioner, however, deserves a review. At the time that he was convicted, the penalty for Illegal Possession of Firearms under Presidential Decree 1866 was reclusion temporal in its maximum period to reclusion perpetua. The trial court, as affirmed by the appellate court, imposed on petitioner the penalty of 12 years, 5 months and 10 days of reclusion temporal as minimum to 17 years, 4 months and 1 day of reclusion temporal as maximum.⁴⁹ In view of the enactment of Republic Act 8294 on June 6, 1997, certain provisions of P.D. 1866 have been amended. With the passage of the aforementioned law, the penalty for simple illegal possession of a low-powered firearm, such as "paltik", has been reduced to prision correccional in its maximum period⁵⁰ and a fine of not less than fifteen thousand pesos (P15,000.00). Therefore following R.A. 8294; the penalty imposed on petitioner should now be lowered to benefit the petitioner. For the penalty provided for simple illegal possession in the amendment is lower than that provided for under the old law. Since the provision of R.A. 8294 is favorable to petitioner, it should have a retroactive effect, pursuant to Article 22 of the Revised Penal Code.⁵¹ Moreover, in conjunction with the new law, we should also apply the doctrine laid down in People vs. Martin Simon⁵² in relation to Section 1 of the Indeterminate Sentence Law.⁵³ Although Illegal Possession of Firearms is considered a special law, the penalty provided is taken from the range of penalties in the Revised Penal Code, thus, in relation to Section 1 of the Indeterminate Sentence Law, it is covered by the first clause of said section. Here applicable by analogy and extension is the holding in Simon:

It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under the Revised Penal Code, states that "if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same." We hold that this quoted portion of the section indubitably refers to an offense under a special law wherein the penalty imposed was not taken from and is without reference to the Revised Penal Code, as discussed in the preceding illustrations, such that it may be said that the "offense is punished" under that law. (Emphasis supplied)⁵⁴

Finally, consistent with the doctrine that an appeal in a criminal case throws the whole case open for review, we find that the appellate court may, in applying the new or amended law, additionally impose a fine which if unpaid will subject the convict to subsidiary imprisonment, pursuant to Article 39 of the Revised Penal Code.⁵⁵ Thus, here we find the imposition of a fine also in order.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED, with the MODIFICATION that petitioner is hereby SENTENCED to 2 years, 4 months, and 1 day of prision correccional medium as minimum, to 5 years, 4 months, and 20 days of prision correctional maximum as maximum, there being no aggravating and mitigating circumstances, plus a fine of P15,000.00 with subsidiary imprisonment should petitioner fail to pay. however, since petitioner has already served more than seven (7) years, (5) months in prison, which is now beyond the maximum principal penalty imposed at present for his offense, even if the subsidiary penalty for unpaid fine is included, he is hereby ordered RELEASED immediately, unless he is being held for any other lawful cause.

SO ORDERED.
Bellosillo, Mendoza and Buena, JJ., concur.

Footnotes

¹ Rollo, pp. 27-39.
² Id. at 26.
³ Id. at 40-46.
⁴ Id. at 45-46.
⁵ Records, p. 1.
⁶ Rollo, pp. 40-41; Id. at 15.
⁷ TSN, September 23, 1992, pp. 2-4.
⁸ Ibid.
⁹ Id. at 4-14.
¹⁰ TSN, October 1, 1992, pp. 2-6.
¹¹ Records, pp. 2-3.
¹² Id. at 11.
¹³ Supra note 5.
¹⁴ Rollo, p. 45.
¹⁵ Id., at 36-37.
¹⁶ Id., at 37.
¹⁷ Id. at 13-14.
¹⁸ Sec. 2, Article III, 1987 Constitution.
¹⁹ Sec. 3, paragraph 2, Article III, 1987 Constitution.
²⁰ Rollo, p. 14.
²¹ Id. at 15.
²² Id. at 20.
²³ Id. at 23.
²⁴ Rollo, pp. 72-74.

²⁵ Rollo, p. 77; See also People v. Alolod, 266 SCRA 155, 165 (1997), Padilla v. Court of Appeals, 269 SCRA 402, 414-415 (1997), People v. Jayson. 282 SCRA 166, 170-172 (1997).

²⁶ Id. at 79.
²⁷ Id. at 80-83.
²⁸ People vs. Ferrer, 255 SCRA 19, 32 (1996), citing People vs. Pacapac, 248 SCRA 77 (1995).
²⁹ RULES OF COURT Rule 131 Section 3 (m).

³⁰ See People vs. Velasco, 252 SCRA 135, 142 (1996), citing People vs. Ponsica, 230 SCRA 87 (1994).

³¹ RICARDO J. FRANCISCO, Criminal Procedure, 2nd ed. [994], pp. 207-208, citing U.S. vs. Santos, 36 Phil 853, 855 (1917), also, People vs. Ancheta, 68 Phil 415, 419-420 (1939).

³² TSN, September 23, 1992, p. 5.

³³ MANUEL R. PAMARAN, Rules on Criminal Procedure, 1195 ed., p. 195, citing U.S. vs. Sanchez, 27 Phil. 442 (1914).

³⁴ Id. at 445, See, People vs. Molleda, 86 SCRA 667, 669 (1978).
³⁵ See, Padilla vs. Court of Appeals, 269 SCRA 402, 416, (1997).
³⁶ Ibid. at 417, citing People vs. Woolcock, 314 Phil 81 (1995).
³⁷ See 280 SCRA 290 (1997).
³⁸ Rollo, p. 14.
³⁹ Records p. 11.
⁴⁰ TSN, May 13, 1993, p. 10.
⁴¹ Francisco, op. cit. 575.
⁴² 163 SCRA 402 (1988).
⁴³ Id. at 409.
⁴⁴ Supra, note 35 at 417.

⁴⁵ Gonzales vs. Court of Appeals, 277 SCRA 518, 525 (1997) citing People vs. Lualhati, 234 SCRA 325 (1994).

⁴⁶ TSN, October 1, 1992, pp. 3-4.

⁴⁷ Supra, note 35 at 428 citing Mallari vs. CA and People of the Philippines, 265 SCRA 456 (1996) citing People vs. Solayao, 262 SCRA 255 (1996).

⁴⁸ Rollo, pp. 37-38.
⁴⁹ Id. at 45.
⁵⁰ Prision Correccional maximum has a range of 4 years, 2 months and 1 day to 6 years.

⁵¹ Art. 22. Retroactive effect of penal laws. — Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same.

⁵² 284 SCRA 555 (1994).
⁵³ Act No. 4125 as amended.

Sec. 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code , or its amendments, the court shall sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum as fixed by law and the minimum shall not be less than the minimum term prescribed by the same. (As amended by Act No. 4225).1âwphi1.nêt

⁵⁴ Supra, note 52 at 580.
⁵⁵ Supra, note 45 at 527.

GUIDELINES AND PROCEDURE IN THE ISSUANCE OF SEARCH WARRANTS.

ADMINISTRATIVE CIRCULAR NO. 13

SUPREME COURT CIRCULARS AND ORDERS

TO: ALL EXECUTIVE JUDGES AND JUDGES OF THE METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS

SUBJECT: GUIDELINES AND PROCEDURE IN THE ISSUANCE OF SEARCH WARRANTS.

Under Administrative Order No. 6 of this Court, dated June 30, 1975, the Executive Judge derives his powers and prerogatives through delegation thereof by this Court — some of which are to improve judicial services, in coordination with court related government agencies, and to further provide leadership in the management of all courts within his area of administrative supervision.

As a measure to better serve the public good and to facilitate the administration of justice, the Court is prescribing hereunder the guidelines in the issuance of search warrants:

1. All applications for search warrants, if filed with the Executive Judge, shall be assigned, by raffle, to a judge within his administrative area, under whose direction the search warrant shall be issued for the search and seizure of personal property;
2. After the application has been raffled and distributed to a Branch, the judge who is assigned to conduct the examination of the complainant and witnesses should immediately act on the same, considering that time element and possible leakage of information are primary considerations in the issuance of search warrants and seizure;
3. Raffling shall be strictly enforced, except only in cases where an application for search warrant may be filed directly with any judge in whose jurisdiction the place to be searched is located, after office hours, or during Saturdays, Sundays, and legal holidays, in which case the applicant is required to certify under oath the urgency of the issuance thereof after office hours, or during Saturdays, Sundays and legal holidays;
4. If, in the implementation of the search warrant, properties are seized thereunder and the corresponding case is filed in court, said case shall be distributed by raffle conformably with Circular No. 7, dated September 23, 1974, of this Court, and thereupon tried and decided by the judge to whom it has been assigned, and not necessarily by the judge who is issued the search warrant.
5. New applications. — In order to insure maximum legitimate effect and give meaning and substance to the constitutional guarantee on the security of every person, his house and his effects, against unreasonable searches and seizures, the following procedure should be strictly observed:

1. A warrant may be issued for the search and seizure of personal property — 1) subject of the offense; 2) stolen or embezzled or are the proceeds or fruits of an offense; and, 3) used or intended to be used as the means of committing an offense;
2. A warrant shall not issue but upon probable cause in laid connection with one specific offense to be determined by the judge or such other responsible officer authorized by law after examination under oath or affirmation of the complainant and the witnesses he may produce on facts personally known to them, and particularly describing the place to be searched and the things to be seized so that they could be properly identified;
3. The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and any witnesses he may produce and attach to the record their sworn statements together with any affidavits submitted;
4. If the judge is thereupon satisfied of the existence of facts upon which the application is based, or that there is probable cause to believe that they exist, he must issue the warrant, which must be substantially in the form prescribed by the Rules;
5. Search warrants must be in duplicate, both signed by the judge. The duplicate copy thereof must be given to the person against whom the warrant is issued and served. Both copies of the warrant must indicate the date until when the warrant shall be valid and must direct that it be served in the daytime. If the judge is satisfied that the property is in the person or in the place ordered to be searched, a direction may be inserted in the warrants that it be served at any time of the day or night;
6. In every court, there shall be a log under the custody of the Clerk of Court wherein shall be entered within 24 hours after the issuance of the search warrant, the following:

1. Date and number of the warrant;
2. Name of the issuing judge;
3. Name of the person against whom the warrant is issued;
4. Offense cited in the warrant; and
5. Name of the officer who applied for the warrant and his witnesses.

Each branch or branches of a court shall have a separate and distinct log book from the log book kept by the other branches of the same court stationed in another city or municipality;

1. The search warrant shall be valid for ten (10) days from date of issuance, and after which the issuing judge should ascertain if the return has been made, and if there was none, should summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge should ascertain from the officer who seized the property under the warrant if a detailed receipt of the property seized was left with the lawful occupants of the premises in whose presence the search and seizure were made, or in the absence of such occupants, whether he left a receipt in the place in which he found the seized property in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, and should require that the property seized by virtue of the warrant shall be delivered to the judge who issued the warrant. The judge should see to it that an accurate and true inventory of the property seized duly verified under oath is attached to the return and filed with the court; and
2. The return on the search warrant shall be filed and kept by the custodian of the log book who shall also enter in the log book, the date of the return, the result, and such other actions the judge may have taken thereon.

This circular shall take effect immediately from receipt of notice. Melencio-Herrera and Relova, JJ., are on leave.

SUSAN CANTON,: terry search application

G.R. No. 148825           December 27, 2002
PEOPLE OF THE PHILIPPINES, appellee,
vs.
SUSAN CANTON, appellant.

D E C I S I O N

DAVIDE, JR., C.J.:

Appellant Susan Canton (hereafter SUSAN) was charged before the Regional Trial Court of Pasay City with the violation of Section 16 of Article III of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended, under an Information¹ whose accusatory portion reads as follows:

That on February 12, 1998 at the Ninoy Aquino International Airport, and within the jurisdiction of this Honorable Court, the above named accused did then and there willfully, unlawfully and feloniously has in her possession NINE HUNDRED NINETY EIGHT POINT TWO EIGHT HUNDRED ZERO NINE (998.2809) GRAMS of methamphetamine hydrochloride, a regulated drug, without the corresponding prescription or license.

CONTRARY TO LAW.
The case was docketed as Criminal Case No. 98-0189 and raffled to Branch 110 of said court.
SUSAN entered a plea of not guilty upon her arraignment.

At the trial, the prosecution presented as witnesses Forensic Chemist Julieta Flores, lady frisker Mylene Cabunoc, and SPO4 Victorio de los Reyes.

For its part, the defense presented SPO2 Jerome Cause as its witness and had prosecution witness Mylene Cabunoc recalled to be presented as hostile witness. It opted not to let SUSAN take the witness stand.

The evidence for the prosecution established that on 12 February 1998, at about 1:30 p.m., SUSAN was at the Ninoy Aquino International Airport (NAIA), being a departing passenger bound for Saigon, Vietnam.² When she passed through the metal detector booth, a beeping sound was emitted. Consequently, Mylene Cabunoc, a civilian employee of the National Action Committee on Hijacking and Terrorism (NACHT) and the frisker on duty at that time, called her attention, saying "Excuse me ma’am, can I search you?"³ Upon frisking SUSAN, Mylene felt something bulging at her abdominal area. Mylene inserted her hand under the skirt of SUSAN, pinched the package several times and noticed that the package contained what felt like rice granules.⁴ When Mylene passed her hand, she felt similar packages in front of SUSAN’s genital area and thighs. She asked SUSAN to bring out the packages, but the latter refused and said: "Money, money only." Mylene forthwith reported the matter to SPO4 Victorio de los Reyes, her supervisor on duty.⁵

SPO4 De los Reyes instructed Mylene to call Customs Examiner Lorna Jalac and bring SUSAN to a comfort room for a thorough physical examination. Upon further frisking in the ladies’ room, Mylene touched something in front of SUSAN’s sex organ. She directed SUSAN to remove her skirt, girdles and panty. SUSAN obliged. Mylene and Lorna discovered three packages individually wrapped and sealed in gray colored packing tape, which SUSAN voluntarily handed to them.⁶ The first was taken from SUSAN’s abdominal area; the second, from in front of her genital area; and the third, from her right thigh.⁷ Mylene turned over the packages to SPO4 De los Reyes.⁸ The latter forthwith informed his superior officer Police Superintendent Daniel Santos about the incident. Together with SUSAN, they brought the gray plastic packs to the customs examination table, opened the same and found that they contained white crystalline substances⁹ which, when submitted for laboratory examination, yielded positive results for methamphetamine hydrochloride or shabu, a regulated drug.¹⁰

For the defense, SPO2 Jerome Cause, an investigator of the First Regional Aviation Office, testified that no investigation was ever conducted on SUSAN.¹¹ However, SUSAN signed a receipt of the following articles seized from her: (1) three bags of methamphetamine hydrochloride or shabu approximately 1,100 grams; (2) one American passport bearing Number 700389994; (3) one Continental Micronesia plane ticket with stock control number 0414381077; and (4) two panty girdles.¹² He said that he informed SUSAN of her constitutional rights but admitted that she did not have a counsel when she signed the receipt.¹³ Yet he told her that she had the option to sign or not to sign the receipt.¹⁴

When recalled as witness for the defense, Mylene merely reiterated the circumstances surrounding the arrest and search of SUSAN and the seizure of the prohibited items found on her person.¹⁵

After consideration of the evidence presented, the trial court rendered a decision¹⁶ finding SUSAN guilty beyond reasonable doubt of the offense of violation of Section 16 of Article III of Republic Act No. 6425, as amended, and sentencing her to suffer the penalty of reclusion perpetua and to pay a fine of P1 million.

SUSAN filed a Motion for Reconsideration and/or New Trial,¹⁷ alleging therein that the trial judge erred in (1) giving weight to the medical certificate executed by a certain Dr. Ma. Bernadette Arcena because it was not presented in court nor marked or admitted, and is therefore hearsay evidence; (2) upholding the presumption of regularity in the performance of duty of police officers, since lady frisker Mylene Cabunoc is not even a police officer; (3) making statements which gave the impression that the burden of proof was shifted to the accused; and (4) deliberately ignoring the decisive issue of how the evidence was secured. SUSAN also assailed the propriety of the search and seizure without warrant on the ground that the seized items were not in plain view. Furthermore, alleging bias and prejudice on the part of the trial judge, SUSAN filed a motion to inhibit Judge Porfirio G. Macaraeg from resolving the Motion for Reconsideration and/or New Trial.¹⁸

After conducting a hearing on 24 November 2000 to resolve appellant’s Motion for Reconsideration and/or New Trial, as well as the Motion to Inhibit the Judge, the trial court issued an order¹⁹ on 26 November 2001 denying the motions. According to the trial judge (1) he explained to SUSAN’s counsel the effects of the filing of a motion for reconsideration, but the latter chose to magnify the judge’s statement which was uttered in jest; (2) SUSAN’s conviction was not based on the medical report which was not presented in court; (3) there was no violation of SUSAN’s constitutional rights because she was never interrogated during her detention without counsel; and (4) the specimens seized from her were found after a routine frisk at the airport and were therefore acquired legitimately pursuant to airport security procedures.

Unsatisfied with the decision of the trial court, SUSAN seasonably appealed to us, imputing to the trial court the following errors: (1) in justifying the warrantless search against her based on the alleged existence of probable cause; (2) in holding that she was caught flagrante delicto and that the warrantless search was incidental to a lawful arrest; (3) in not ruling that the frisker went beyond the limits of the "Terry search" doctrine; (4) in not ruling that SUSAN was under custodial investigation without counsel; (5) in admitting to the records of the case the report of Dr. Ma. Bernadette Arcena, which was not testified on or offered in evidence, and using the same in determining her guilt; (6) in justifying under the rule on judicial notice its cognizance of the medical report that has not been offered in evidence; and (7) in applying the ruling in People v. Johnson.²⁰

For assigned errors nos. 1 and 2, SUSAN asserts that the strip search conducted on her in the ladies’ room was constitutionally infirmed because it was not "incidental to an arrest." The arrest could not be said to have been made before the search because at the time of the strip search, the arresting officers could not have known what was inside the plastic containers hidden on her body, which were wrapped and sealed with gray tape. At that point then, they could not have determined whether SUSAN was actually committing a crime. The strip search was therefore nothing but a fishing expedition. Verily, it is erroneous to say that she was caught flagrante delicto and that the warrantless search was incidental to a lawful arrest.

For assigned error no. 3, SUSAN maintains that, following the doctrine enunciated in Terry v. Ohio,²¹ such stop and frisk search should have been limited to the patting of her outer garments in order to determine whether she was armed or dangerous and therefore a threat to the security of the aircraft.

For assigned error no. 4, SUSAN alleges that from the moment frisker Mylene felt a package at her abdominal area, started inquiring about the contents thereof, detained her, and decided to submit her to a strip search in the ladies’ room, she was under custodial investigation without counsel, which was violative of Section 12, Article III of the Constitution.

For assigned errors nos. 5 and 6, SUSAN assails the propriety of the admission of the medical report executed by Dr. Ma. Bernadette Arcena on the ground that it was neither testified on nor offered in evidence.

Lastly, SUSAN questions the application of People v. Johnson²² because of its sweeping statement allowing searches and seizures of departing passengers in airports in view of the gravity of the safety interests involved. She stresses that the pertinent case should have been Katz v. United States,²³ which upholds the Fourth Amendment of the United States of America that "protects people and not places."

In its Appellant’s Brief, the Office of the Solicitor General (OSG) declares that SUSAN was found flagrante delicto in possession of a regulated drug without being authorized by law. Thus, the case falls squarely within the exception, being a warrantless search incidental to a lawful arrest. Moreover, SUSAN voluntarily submitted herself to the search and seizure when she allowed herself to be frisked and brought to the comfort room for further inspection by airport security personnel. It likewise maintains that the methamphetamine hydrochloride seized from SUSAN during the routine frisk at the airport was acquired legitimately pursuant to airport security procedures.

Anent the admission of the medical certificate issued by Dr. Ma. Bernadette Arcena, the OSG argues that SUSAN’s conviction was not solely based on the questioned document but also on the fact that she was caught flagrante delicto in possession of a regulated drug without being authorized by law. Consequently, it supports SUSAN’s conviction but recommends the reduction of the fine from P1 million to P100,000.

We affirm SUSAN’s conviction.

We do not agree that the warrantless search and subsequent seizure of the regulated drugs, as well as the arrest of SUSAN, were violative of her constitutional rights.

Sections 2 and 3(2) of Article III of the 1987 Constitution provides:

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.

…
Sec. 3….

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

What constitutes a reasonable or unreasonable search in any particular case is a judicial question, determinable from a consideration of the circumstances involved. The rule is that the Constitution bars State intrusions to a person's body, personal effects or residence except if conducted by virtue of a valid search warrant issued in compliance with the procedure outlined in the Constitution and reiterated in the Rules of Court. ²⁴

The interdiction against warrantless searches and seizures is not absolute. The recognized exceptions established by jurisprudence are (1) search of moving vehicles; (2) seizure in plain view; (3) customs searches; (4) waiver or consented searches; (5) stop and frisk situations (Terry search); and (6) search incidental to a lawful arrest.²⁵

I. The search conducted on SUSAN was not incidental to a lawful arrest.

We do not agree with the trial court and the OSG that the search and seizure conducted in this case were incidental to a lawful arrest. SUSAN’s arrest did not precede the search. When the metal detector alarmed while SUSAN was passing through it, the lady frisker on duty forthwith made a pat down search on the former. In the process, the latter felt a bulge on SUSAN’s abdomen. The strip search that followed was for the purpose of ascertaining what were the packages concealed on SUSAN’s body. If ever at the time SUSAN was deprived of her will and liberty, such restraint did not amount to an arrest. Under Section 1 of Rule 113 of the Revised Rules of Criminal Procedure, as amended, arrest is the "taking of a person into custody in order that he may be bound to answer for the commission of an offense."lawphi1.ñet

As pointed out by the appellant, prior to the strip search in the ladies’ room, the airport security personnel had no knowledge yet of what were hidden on SUSAN’s body; hence, they did not know yet whether a crime was being committed. It was only after the strip search upon the discovery by the police officers of the white crystalline substances inside the packages, which they believed to be shabu, that SUSAN was arrested. The search cannot, therefore, be said to have been done incidental to a lawful arrest. In a search incidental to a lawful arrest, the law requires that there be first a lawful arrest before a search can be made; the process cannot be reversed.²⁶

II. The scope of a search pursuant to airport security procedure is not confined only to search for weapons under the "Terry search" doctrine.

The Terry search or the "stop and frisk" situation refers to a case where a police officer approaches a person who is acting suspiciously, for purposes of investigating possibly criminal behavior in line with the general interest of effective crime prevention and detection. To assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him, he could validly conduct a carefully limited search of the outer clothing of such person to discover weapons which might be used to assault him.²⁷

In the present case, the search was made pursuant to routine airport security procedure, which is allowed under Section 9 of Republic Act No. 6235 reading as follows:

SEC. 9. Every ticket issued to a passenger by the airline or air carrier concerned shall contain among others the following condition printed thereon: "Holder hereof and his hand-carried luggage(s) are subject to search for , and seizure of, prohibited materials or substances. Holder refusing to be searched shall not be allowed to board the aircraft," which shall constitute a part of the contract between the passenger and the air carrier.

This constitutes another exception to the proscription against warrantless searches and seizures. As admitted by SUSAN and shown in Annex "D" of her Brief, the afore-quoted provision is stated in the "Notice to All Passengers" located at the final security checkpoint at the departure lounge. From the said provision, it is clear that the search, unlike in the Terry search, is not limited to weapons. Passengers are also subject to search for prohibited materials or substances.

In this case, after the metal detector alarmed SUSAN consented to be frisked, which resulted in the discovery of packages on her body. It was too late in the day for her to refuse to be further searched because the discovery of the packages whose contents felt like rice granules, coupled by her apprehensiveness and her obviously false statement that the packages contained only money, aroused the suspicion of the frisker that SUSAN was hiding something illegal. It must be repeated that R.A. No. 6235 authorizes search for prohibited materials or substances. To limit the action of the airport security personnel to simply refusing her entry into the aircraft and sending her home (as suggested by appellant), and thereby depriving them of "the ability and facility to act accordingly, including to further search without warrant, in light of such circumstances, would be to sanction impotence and ineffectivity in law enforcement, to the detriment of society."²⁸ Thus, the strip search in the ladies’ room was justified under the circumstances.

III. The ruling in People v. Johnson is applicable to the instant case.

The case of People v. Johnson, which involves similar facts and issues, finds application to the present case. That case involves accused-appellant Leila Johnson, who was also a departing passenger bound for the United States via Continental Airlines CS-912. Olivia Ramirez was then the frisker on duty, whose task was to frisk departing passengers, employees and crew to check for weapons, bombs, prohibited drugs, contraband goods and explosives. When Olivia frisked Leila, the former felt something hard on the latter’s abdominal area. Upon inquiry, Leila explained that she needed to wear two panty girdles, as she had just undergone an operation as a result of an ectopic pregnancy. Not satisfied with the explanation, Olivia reported the matter to her superior, who then directed her to take Leila to the nearest women’s room for inspection. In the comfort room, Leila was asked "to bring out the thing under her girdle." She acceded and brought out three plastic packs which contained a total of 580.2 grams of methamphetamine hydrochloride or shabu. This Court ruled that the packs of "methamphetamine hydrochloride" seized during the routine frisk at the airport was acquired legitimately pursuant to airport security procedures and are therefore admissible in evidence against Leila. Corollarily, her subsequent arrest, although likewise without warrant, was justified, since it was effected upon the discovery and recovery of shabu in her person flagrante delicto. The Court held in this wise:

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.

SUSAN’s reliance on Katz v. U.S.²⁹ is misplaced. The facts and circumstances of that case are entirely different from the case at bar. In that case, the accused was convicted in the United States District Court for the Southern District of California of transmitting wagering information by telephone. During the trial, the government was permitted, over the accused’s objection, to introduce evidence of accused’s end of telephone conversations, which was overheard by FBI agents who had attached an electronic listening and recording device to the outside of the public telephone booth from which he placed his calls. The Court of Appeals for the Ninth Circuit affirmed the conviction. On certiorari, however, the Supreme Court of the United States of America reversed the decision, ruling that antecedent judicial authorization, which was not given in the instant case, was a constitutional precondition of the kind of electronic surveillance involved. It ruled that what a person knowingly exposes to the public, even in his own house or office, is not a subject the Fourth Amendment protection, but what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

The maxim – stare decisis et non quieta movere – invokes adherence to precedents and mandates not to unsettle things which are established. When the court has once laid down a principle of law as applicable to a certain state of facts, it must adhere to that principle and apply it to all future cases where the facts are substantially the same.³⁰ There being a disparity in the factual milieu of Katz v. U.S. and the instant case, we cannot apply to this case the ruling in Katz.

IV. The appellant, having been caught flagrante delicto, was lawfully arrested without a warrant.
Section 5, Rule 113 of the Rules of Court, as amended, provides:

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 just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances 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 is 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) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.

The present case falls under paragraph (a) of the afore-quoted Section. The search conducted on SUSAN resulted in the discovery and recovery of three packages containing white crystalline substances, which upon examination yielded positive results for methamphetamine hydrochloride or shabu. As discussed earlier, such warrantless search and seizure were legal. Armed with the knowledge that SUSAN was committing a crime, the airport security personnel and police authorities were duty-bound to arrest her. As held in People v. Johnson, her subsequent arrest without a warrant was justified, since it was effected upon the discovery and recovery of shabu in her person flagrante delicto.

V. The constitutional right to counsel afforded an accused under custodial investigation was not violated.

Entrenched is the rule that the rights provided in Section 12, Article III of the Constitution may be invoked only when a person is under "custodial investigation" or is "in custody interrogation."³¹ Custodial investigation refers to the "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."³² This presupposes that he is suspected of having committed a crime and that the investigator is trying to elicit information or a confession from him.³³ And the right to counsel attaches upon the start of such investigation.³⁴ The objective is to prohibit "incommunicado" interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights.³⁵

In this case, as testified to by the lone witness for the defense, SPO2 Jerome Cause, no custodial investigation was conducted after SUSAN’s arrest. She affixed her signature to the receipt of the articles seized from her, but before she did so, she was told that she had the option to sign or not to sign it. In any event, her signature to the packages was not relied upon by the prosecution to prove its case. Moreover, no statement was taken from her during her detention and used in evidence against her.³⁶ Hence, her claim of violation of her right to counsel has no leg to stand on.

VI. The admission of the medical report was erroneous.

SUSAN assails, on the ground of violation of the hearsay rule, the admission of the medical report on the physical and medical examination conducted upon appellant’s request, which contained the following:

On subsequent examinations, she was seen behaved and cooperative. She related that she was an illegitimate daughter, married, but divorced in 1995. She verbalized, "I gamble like an addict. I gambled since I was young and I lost control of myself when I played cards. When I lost control, I want my money back. I owe other people lots of money. I lost all the cash of my husband. This is the first time I carried shabu. I need the money." She denied having any morbid thoughts and perceptual disturbances. (Emphasis supplied).

This argument is meritorious. The admission of the questioned document was erroneous because it was not properly identified. Nevertheless, even without the medical report, appellant’s conviction will stand, as the court’s finding of guilt was not based on that document.

VII. SUSAN’s conviction and the penalty imposed on her are correct.

Having found the warrantless search and seizure conducted in this case to be valid, we do not hesitate to rule that that the three packages of shabu recovered from SUSAN are admissible in evidence against her. Supported by this evidence and the testimonies of the prosecution witnesses, her conviction must inevitably be sustained.

Sections 16 and 20 of Article III of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended, provides:

SEC. 16. Possession or Use of Regulated Drugs.--The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who shall possess or use any regulated drug without the corresponding license or prescription, subject to the provisions of Section 20 hereof.

…
SEC. 20. Application of Penalties, confiscation and Forfeiture of the Proceeds or Instruments of the Crime.--The penalties for offenses under Section 3,4,7, 8, and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved [are] in any of the following quantities:
…
3. 200 grams or more of shabu or methylamphetamine hydrochloride….

There being no aggravating nor mitigating circumstance, the proper penalty is reclusion perpetua pursuant to Article 63(2) of the Revised Penal Code.

As regards the fine, courts may fix any amount within the limits established by law. For possession of regulated drugs, the law fixes the range of the fine from P500,000 to P10 million. In view of the net weight of methamphetamine hydrochloride found in the possession of SUSAN, the trial court’s imposition of fine in the amount of P1 million is well within the range prescribed by law.

VIII. The other items seized from the appellant should be returned to her.
Section 3 of Rule 126 of the Revised Rules of Criminal Procedure authorizes the confiscation of the following:
SEC. 3. Personal property to be seized. – A search warrant may be issued for the search and seizure of personal property:
(a) Subject of the offense;
(b) Stolen or embezzled and other proceeds, or fruits of the offense; or
(c) Used or intended to be used as the means of committing an offense.
,

Clearly, the seizure of SUSAN’s passport, plane tickets, and girdles exceeded the limits of the afore-quoted provision. They, therefore, have to be returned to her.³⁷

IN VIEW OF ALL THE FOREGOING, the judgment of the Regional Trial Court of Pasay City, Branch 110, in Criminal Case No. 98-0189 finding appellant SUSAN CANTON guilty beyond reasonable doubt of the violation of Section 16, Article III of the Dangerous Act of 1972 (Republic Act No. 6425), as amended, and sentencing her to suffer the penalty of reclusion perpetua and to pay a fine of One Million Pesos (P1,000,000) and the costs is hereby AFFIRMED. The appellant’s passport, plane tickets, and girdles are hereby ordered to be returned to her.

Costs de oficio.
SO ORDERED.
Vitug, Ynares-Santiago, Carpio, and Azcuna, JJ., concur.

Footnotes

¹ Original Record (OR), 1.
² OR, 16.
³ TSN, 16 October 1998, 6-8.
⁴ Id., 24-30.
⁵ Id., 29, 32-34.
⁶ TSN, 16 October 1998, 39-41.
⁷ Id., 9-12.
⁸ Id., 43-44; 10 March 1999, 7-8, 22.
⁹ Id., 8.
¹⁰ TSN, 29 July 1998, 23-53.
¹¹ TSN, 22 February 2000, 7.
¹² Id., 12; OR, 20.
¹³ Id., 15-16; 19-20.
¹⁴ Id., 21.
¹⁵ TSN, 26 April 2000, 4-18, 21.
¹⁶ Per Judge Porfirio C. Macaraeg. OR, 406-417; Rollo, 18-29.
¹⁷ OR, 422-439.
¹⁸ Id., 441-444.
¹⁹ Id., 466-471.
²⁰ 348 SCRA 526 [2000].
²¹ 392 U.S. 1, 20 L. Ed. 2nd 889 [1968].
²² Supra note 20.
²³ 389 U.S. 347, 19 L. Ed. 2d 576 [1967].
²⁴ People v. Chua Ho San, 308 SCRA 432, 443-444 [1999].
²⁵ Supra, People v. Figueroa, 335 SCRA 249, 263 [2000]; People v. Fernandez, G.R. Nos. 143850-53, 18 December 2001.
²⁶ People v. Chua Ho San, supra note 24, citing Malacat v. Court of Appeals, 283 SCRA 159, 175 [1997].
²⁷ Terry v. Ohio, supra note 21.
²⁸ People v. Malmstedt, 198 SCRA 401, 410 [1991].
²⁹ Supra note 23.
³⁰ People v. Aquino, G.R. No. 145371, 28 September 2001.
³¹ Sebastian v. Garchitorena, 343 SCRA 463, 470 [2000]; People v. De la Cruz, 279 SCRA 245 [1997].
³² People v. Salonga, 359 SCRA 310, 320-321 [2001].
³³ People v. Ayson, 175 SCRA 216, 230 [1989].
³⁴ Manuel v. P.C. Construction Supply, 282 SCRA 326, 334-335 [1997].
³⁵ People v. Ayson, supra note 33, at 229.
³⁶ See People v. Johnson, supra note 20.
³⁷ People v. Johnson, supra note 2

terry search: o stop and frisk: the story behind it

Terry v. Ohio, 392 U.S. 1 (1968), was a landmark decision by the United States Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person "may be armed and presently dangerous." (392 U.S. 1, at 30).

For their own protection, police may perform a quick surface search of the person’s outer clothing for weapons if they have reasonable suspicion that the person stopped is armed. This reasonable suspicion must be based on "specific and articulable facts" and not merely upon an officer's hunch. This permitted police action has subsequently been referred to in short as a "stop and frisk," or simply a "Terry frisk". The Terry standard was later extended to temporary detentions of persons in vehicles, known as traffic stops; see Terry stop for a summary of subsequent jurisprudence.

The rationale behind the Supreme Court decision revolves around the understanding that, as the opinion notes, "the exclusionary rule has its limitations." The meaning of the rule is to protect persons from unreasonable searches and seizures aimed at gathering evidence, not searches and seizures for other purposes (like prevention of crime or personal protection of police officers).

On October 31, 1963, while on a downtown beat which he had been patrolling for many years, Cleveland Police Department detective Martin McFadden, aged 62,^[1] saw two men, John W. Terry and Richard Chilton, standing on a street corner at 1276 Euclid Avenue and acting in a way the officer thought was suspicious. Detective McFadden, who was well-known on the Cleveland police force for his skill in apprehending pickpockets,^[1] observed the two proceed alternately back and forth along an identical route, pausing to stare in the same store window. Each completion of the route was followed by a conference between the two on a corner. The two men repeated this ritual alternately between five and six times apiece—in all, roughly a dozen trips. After one of these trips, they were joined by a third man (Katz) who left swiftly after a brief conversation. Suspecting the two men of "casing a job, a stick-up", detective McFadden followed them and saw them rejoin the third man a couple of blocks away in front of a store.

The plainclothes officer approached the three, identified himself as a policeman, and asked their names. The men "mumbled something", whereupon McFadden spun Terry around, patted down his outside clothing, and felt a pistol in his overcoat pocket. He reached inside the overcoat pocket, but was unable to remove the gun. The officer ordered the three into the store. He removed Terry's overcoat, took out a revolver, and ordered the three to face the wall with their hands raised. He patted down the outer clothing of Chilton and Katz and seized a revolver from Chilton's outside overcoat pocket. He did not put his hands under the outer garments of Katz (since he discovered nothing in his pat-down which might have been a weapon), or under Terry's or Chilton's outer garments until he felt the guns. The three were taken to the police station. Terry and Chilton were subsequently charged with carrying concealed weapons.

The defense of the charged individuals moved to suppress the use of the seized weapons as evidence on grounds that the search and subsequent seizure were a violation of the Fourth Amendment to the United States Constitution. Though the trial court rejected the prosecution theory that the guns had been seized during a search incident to a lawful arrest, the court denied the motion to suppress and admitted the weapons into evidence on the ground that the officer had cause to believe that Terry and Chilton were acting suspiciously, that their interrogation was warranted, and that the officer for his own protection had the right to pat down their outer clothing having reasonable cause to believe that they might be armed. The trial court made a distinction between an investigatory "stop" and an arrest, and between a "frisk" of the outer clothing for weapons and a full-blown search for evidence of crime.

Terry and Chilton were found guilty, an intermediate appellate court affirmed the conviction, and the Ohio State Supreme Court dismissed the appeal on the ground that "no substantial constitutional question" was involved.

Chief Justice Warren's opinion for the Court began by reciting first principles. The Fourth Amendment protects "people, not places", against "unreasonable searches and seizures". The question the Court confronted was whether "in all the circumstances of this on-the-street encounter", Terry's reasonable expectation of privacy had been impermissibly invaded.

The procedure called "stop and frisk" was controversial. Police argue that they require a certain flexibility in dealing with quickly evolving and potentially dangerous situations that arise during routine patrol of the streets. On the other hand, those suspicious of giving the police broad investigatory power contended that the police should not be able to assert their authority over citizens without some specific justification upon intrusion into protected personal security, coupled with judicial oversight to ensure that the police do not routinely abuse their authority. For the Court, however, the question was not the propriety of the police actions in the abstract but the admissibility of the evidence obtained through that police action. "In our system evidentiary rulings provide the context in which the judicial process of inclusion and exclusion approves some conduct as comporting with constitutional guarantees and disapproves other actions by state agents." For this purpose the exclusionary rule of Mapp v. Ohio, 367 U.S. 643 (1961), had evolved and been applied against both state and federal agents.

Thus the question was not whether the stop-and-frisk procedure was proper by itself, but whether the exclusionary rule was an appropriate deterrent of police misconduct during such encounters.

“	Proper adjudication of cases in which the exclusionary rule is invoked demands a constant awareness of these limitations. The wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain, will not be stopped by the exclusion of any evidence from any criminal trial. Yet a rigid and unthinking application of the exclusionary rule, in futile protest against practices which it can never be effectively used to control, may exact a high toll in human injury and frustration of efforts to prevent crime.	”
	— Terry v. Ohio, 392 U.S. 1, 14–15

In view of these concerns, the Court next asked whether it is "always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest."

When is a person seized and what constitutes a search?

The Supreme Court first had to determine, for purposes of the Fourth Amendment, when is a person "seized" and what constitutes a "search". The Court rejected the idea that a "stop and frisk" could categorically never be a search or seizure subject to the protection of the Fourth Amendment. Instead, it made room for the idea that some police action short of a traditional arrest could constitute a seizure—that is, "whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." The Court also noted that "... it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person's clothing all over his or her body in an attempt to find weapons is not a 'search.' "

Thus, when the police detective took hold of Terry and patted him down on that Cleveland street, the detective "seized" Terry and subjected him to a "search" within the meaning of the Fourth Amendment. But the Fourth Amendment protects only against unreasonable searches and seizures, so the Court next had to determine whether Terry’s seizure and search were "reasonable".

What is reasonable?

The Court assessed the reasonableness of the police activity here by comparing it to activity that would ordinarily require a warrant. “... in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.” In a situation where the police obtained a warrant, they would have brought these facts and inferences to the attention of a judicial officer before embarking on the actions in question. Post hoc judicial review of police activity is equally facilitated by these facts and inferences.

The Court also emphasized that the test standard courts should employ is an objective one. “Would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate?” Lesser evidence would mean that the Court would tolerate invasions on the privacy of citizens supported by mere hunches—a result the Court would not tolerate. Moreover,

And simple " 'good faith on the part of the arresting officer is not enough.' ... If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be 'secure in their persons, houses, papers, and effects,' only in the discretion of the police." — quoting Beck v. Ohio, 379 U.S. 89 (1964)

The reasonableness inquiry takes into account the "nature and extent of the governmental interests involved", including the general interest in crime prevention, the officer's specific concern for his own safety, the citizen's interest in his own privacy and dignity, and the extent to which the particular search in question intruded upon those interests. "Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime."

Even searches that start out as reasonable may "violate the Fourth Amendment by virtue of their intolerable intensity and scope." Thus, the scope of the search must be justified by the circumstances that led the police to undertake it in the first place.

The stop and frisk of Terry was very reasonable

These principles led the Court to conclude that the evidence found on Terry's person was properly admitted because the search was reasonable. The detective had observed Terry and his companions acting in a manner he took to be a preface to a stick-up. A reasonable person in the detective's position would have thought that Terry was armed and thus presented a threat to his safety while he was investigating the suspicious behavior he was observing. The events he had witnessed made it reasonable for him to believe that either Terry or his cohorts were armed. "The record evidences the tempered act of a policeman who in the course of an investigation had to make a quick decision as to how to protect himself and others from possible danger, and took limited steps to do so."

The police detective here limited his search to the outer surfaces of Terry's clothing. Thus, the search was reasonably related in scope to the concern for his own safety that justified the stop from the beginning. Accordingly, the Court concluded that the revolver found on Terry's person was properly admitted into evidence.

The sole justification for the search is protection of the officer and public

The Ohio Court of Appeals allowed the search, but made it clear that such a search was limited to discovering dangerous weapons that could be used against the officer, as Chief Justice Warren noted:

"In this case, for example, the Ohio Court of Appeals stated that 'we must be careful to distinguish that the "frisk" authorized herein includes only a "frisk" for a dangerous weapon. It by no means authorizes a search for contraband, evidentiary material, or anything else in the absence of reasonable grounds to arrest. Such a search is controlled by the requirements of the Fourth Amendment, and probable cause is essential.' " (392 U.S. 1, at 16, Fn 12, quoting State v. Terry, 5 Ohio App. 2d 122, at 130)

Chief Justice Warren later made it clear that this was also the opinion of the Court:

"The sole justification of the search ... is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." (392 U.S. 1, at 29)

Is such a search a "petty indignity"?

"... it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a 'petty indignity.' It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly." (392 U.S. 1, at 16–17)

Concurring opinion

Justice White joined the opinion of the Court but suggested that

"There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation." (392 U.S. 1, at 34).

With regard to the lack of obligation to respond when detained under circumstances of Terry, this opinion came to be regarded as persuasive authority in some jurisdictions, and the Court cited these remarks in dicta in Berkemer v. McCarty, 468 U.S. 420 (1984), at 439. However, in Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), the Court held that neither of these remarks was controlling in a situation where a state law required a detained person to identify himself.

Dissenting opinion

Justice Douglas strongly disagreed with permitting a stop and search absent probable cause:

"We hold today that the police have greater authority to make a 'seizure' and conduct a 'search' than a judge has to authorize such action. We have said precisely the opposite over and over again." (392 U.S. 1, at 37).

"To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment." (392 U.S. 1, at 38).

Subsequent jurisprudence

Terry set precedent for a wide assortment of Fourth Amendment cases. The cases range from street stop-and-frisks to traffic stops in which pat-down searches could be conducted on the driver or passengers. Relevant cases are Ybarra v. Illinois, Minnesota v. Dickerson, Florida v. J. L., Muehler v. Mena, Alabama v. White, Pennsylvania v. Mimms, Maryland v. Wilson and Brendlin v. California. In Michigan v. Long, 463 U.S. 1032 (1983), the Supreme Court ruled that car compartments could be constitutionally searched if an officer had reasonable suspicion that the suspect is armed and dangerous. Thus the compartments are viewed as an extension of the suspect's person. This is known as "frisking the lunge area," as an officer may protect himself by searching any areas the suspect could grab a weapon from.

The Terry doctrine was markedly extended in the 2004 Supreme Court case Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), which held that a state law requiring the suspect to identify himself during a Terry stop did not violate the Fourth Amendment prohibitions of unreasonable searches and seizures or the Fifth Amendment privilege against self-incrimination. The Court did not legalize this process in all states but instead left it up to the states to decide whether they would pass such laws. So far 24 states have passed such laws.

The Court most recently cited Terry v. Ohio in Arizona v. Johnson. In that 2009 case, the Court ruled 9-0 in favor of further expanding Terry, granting police the ability to frisk an individual in a stopped vehicle if there is reasonable suspicion to believe the individual is armed and dangerous. This fulfills only the second prong of Terry (the first prong—reasonable suspicion that a crime has, is, or will be committed—is fulfilled by whatever traffic violation prompted the pull-over). According to Whren v. United States, any traffic violation, no matter how small, is legitimate basis for a traffic stop.