THIRD DIVISION

[G.R. No. 113447. October 9, 1997.]

ALAIN MANALILI y DIZON , petitioner, vs . COURT OF APPEALS and

PEOPLE OF THE PHILIPPINES , respondents.

SYNOPSIS

Alain Manalili y Dizon was charged with violation of Section 8, Article II of Republic
Act No. 6425. After trial, the Regional Trial Court of Caloocan City rendered a decision
convicting appellant of illegal possession of marijuana residue. The accused was
sentenced to suffer imprisonment of six years and one day and to pay a ne of P6,000.00
and to pay the costs. The conviction of petitioner was based on the strength of the
arresting o cers' testimony. On appeal, the Court of Appeals found no proof that the
decision of the trial court was based on speculations, surmises or conjectures. Hence, this
petition for review on certiorari under Rule 45 of the Rules of Court, seeking the reversal of
the decision of the Court of Appeals. cdasia

The Supreme Court a rmed the assailed decision with modi cation as to the
imposable penalty. The Court held that the search made was valid, being akin to a stop-
and-frisk. The general rule is that a search and seizure must be validated by a previously
secured judicial warrant; otherwise, such search and seizure is unconstitutional and
subject to challenge. This right, however is not absolute. Stop-and-frisk has already been
adopted as another exception to the general rule against a search without a warrant.

SYLLABUS

1. POLITICAL LAW; SEARCH AND SEIZURE; STOP-AND-FRISK; DEFINED AND

CONSTRUED; WHEN AKIN TO A VALID SEARCH. — The Court held that the search was
valid, being akin to a stop-and-frisk. In the landmark case of Terry vs. Ohio, (20 L Ed 2d
889; 88 S Ct 1868, 392 US 1, 900 June 10, 1968) a stop-and-frisk was de ned as the
vernacular designation of the right of a police o cer to stop a citizen on the street,
interrogate him, and pat him for weapon(s): ". . . (W)here a police o cer observes an
unusual conduct which leads him reasonably to conclude in light of his experience that
criminal activity may be afoot and that the persons with whom he is dealing may be armed
and presently dangerous, where in the course of investigating this behavior he identi ed
himself as a policeman and makes reasonable inquiries, and where nothing in the initial
stages of the encounter serves to dispel his reasonable fear for his own or others' safety,
he is entitled for the protection of himself and others in the area to conduct a carefully
limited search of the outer clothing of such persons in an attempt to discover weapons
which might be used to assault him. Such a search is a reasonable search under the Fourth
Amendment, and any weapon seized may properly be introduced in evidence against the
person from whom they were taken." cdasia

2. ID.; ID.; MUST BE VALIDATED BY A PREVIOUSLY SECURED JUDICIAL

WARRANT; EFFECT OF ABSENCE THEREOF. — In Philippine jurisprudence, the general rule
is that a search and seizure must be validated by a previously secured judicial warrant;
otherwise, such search and seizure is unconstitutional and subject to challenge. Section 2,
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 Article III of the 1987 Constitution, gives this guarantee. Any evidence obtained in violation
of the mentioned provision is legally inadmissible in evidence as a "fruit of the poisonous
tree," falling under the exclusionary rule: "SEC. 3. . . . (2) Any evidence obtained in violation
of . . . the preceding section shall be inadmissible for any purpose in any proceeding."
3. ID.; ID.; ID.; RECOGNIZED EXCEPTIONS. — This right, however, is not absolute.
The recent case of People vs. Lacena, G.R. No. 109250, September 5, 1997, enumerated
ve recognized exceptions to the rule against warrantless search and seizure, viz.: "(1)
search incidental to a lawful arrest, (2) search of moving vehicles, (3) seizure in plain view,
(4) customs search, and (5) waiver by the accused themselves of their right against
unreasonable search and seizure." In People vs. Encinada, G.R. No. 116720, October 2,
1997, the Court further explained that "[i]n these cases, the search and seizure may be
made only with probable cause as the essential requirement. Although the term eludes
exact de nition, probable cause for a search is, at best, de ned as a reasonable ground of
suspicion, supported by circumstances su ciently strong in themselves to warrant a
cautious man in the belief that the person accused is guilty of the offense with which he is
charged; or the existence of such facts and circumstances which could lead a reasonably
discreet and prudent man to believe that an offense has been committed and that the
item(s), article(s) or object(s) sought in connection with said offense or subject to seizure
and destruction by law is in the place to be searched." Stop-and-frisk has already been
adopted as another exception to the general rule against a search without a warrant. In
Posadas vs. Court of Appeals, 188 SCRA 288, 292-293, August 2, 1990, the Court held that
there were many instances where a search and seizure could be effected without
necessarily being preceded by an arrest, one of which was stop-and-frisk. In said case,
members of the Integrated National Police of Davao stopped petitioner, who was carrying
a buri bag and acting suspiciously. They found inside petitioner's bag one .38-cal. revolver
with two rounds of live ammunition, two live ammunitions for a .22-cal. gun and a tear gas
grenade. In upholding the legality of the search, the Court said that to require the police
o cers to search the bag only after they had obtained a search warrant might prove to be
useless, futile and much too late under the circumstances. In such a situation, it was
reasonable for a police o cer to stop a suspicious individual brie y in order to determine
his identity or to maintain the status quo while obtaining more information, rather than to
simply shrug his shoulders and allow a crime to occur.
4. ID.; ID.; RIGHT AGAINST UNREASONABLE SEARCH; REQUIREMENTS FOR
WAIVER THEREOF; CASE AT BAR. — A valid waiver of a right, more particularly of the
constitutional right against unreasonable search, requires the concurrence of the following
requirements: (1) the right to be waived existed; (2) the person waiving it had knowledge,
actual or constructive, thereof; and (3) he or she had an actual intention to relinquish the
right. Otherwise, the Courts will indulge every reasonable presumption against waiver of
fundamental safeguards and will not deduce acquiescence from the failure to exercise this
elementary right. In the present case, however, petitioner is deemed to have waived such
right for his failure to raise its violation before the trial court. In petitions under Rule 45, as
distinguished from an ordinary appeal of criminal cases where the whole case is opened
for review, the appeal is generally limited to the errors assigned by petitioner. Issues not
raised below cannot be pleaded for the first time on appeal.
5. REMEDIAL LAW; EVIDENCE; TESTIMONY; CREDIBILITY OF WITNESSES;
ASSESSMENT BY THE TRIAL COURT; ACCORDED GREAT WEIGHT AND RESPECT;
EXCEPTION. — Time and again, this Court has ruled that the trial court's assessment of the
credibility of witnesses, particularly when a rmed by the Court of Appeals as in this case,
is accorded great weight and respect, since it had the opportunity to observe their
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 demeanor and deportment as they testi ed before it. Unless substantial facts and
circumstances have been overlooked or misappreciated by the trial court which, if
considered, would materially affect the result of the case, the Court will not countenance a
departure from this rule.
6. ID.; ID.; FRAME-UP; LIKE ALIBI IS VIEWED WITH DISFAVOR BY THE COURT. —
The petitioner's defense of frame-up, like alibi, is viewed by this Court with disfavor
because it is easy to concoct and fabricate.
7. CRIMINAL LAW; ILLEGAL POSSESSION OF PROHIBITED DRUGS; ELEMENTS.
— The elements of illegal possession of marijuana are: (a) the accused is in possession of
an item or object which is identi ed to be a prohibited drug; (b) such possession is not
authorized by law; and (c) the accused freely and consciously possessed the said drug.
8. ID.; ID.; IMPOSABLE PENALTY. — The trial and the appellate courts
overlooked the Indeterminate Sentence Law (Act No. 4103, as amended) by sentencing
petitioner to a straight penalty of six years and one day of imprisonment, aside from the
imposed ne of six thousand pesos. This Act requires the imposition of an indeterminate
penalty. The Dangerous Drugs Law, R.A. 6425, as amended by B.P. 179, imposes the
following penalty for illegal possession of marijuana: "Sec. 8. . . . The penalty of
imprisonment ranging from six years and one day to twelve years and a ne ranging from
six thousand to twelve thousand pesos shall be imposed upon any person who, unless
authorized by law, shall possess or use Indian hemp." Prescinding from the foregoing, the
Court holds that the proper penalty is an indeterminate sentence of imprisonment ranging
from six years and one day to twelve years. ASDTEa

DECISION

PANGANIBAN , J : p

When dealing with a rapidly unfolding and potentially criminal situation in the city
streets where unarguably there is no time to secure an arrest or a search warrant,
policemen should employ limited, exible responses — like "stop-and-frisk" — which are
graduated in relation to the amount of information they possess, the lawmen being ever
vigilant to respect and not to violate or to treat cavalierly the citizen's constitutional rights
against unreasonable arrest, search and seizure.
The Case
This rule is reiterated as we resolve this petition for review on certiorari under Rule
45 of the Rules of Court, seeking the reversal of the Decision of the Court of Appeals dated
April 19, 1993 and its Resolution dated January 20, 1994 in CA G.R. CR No. 07266, entitled
"People of the Philippines vs. Alain Manalili y Dizon."
In an Information dated April 11, 1988, 1 Petitioner Alain Manalili y Dizon was
charged by Assistant Caloocan City Fiscal E. Juan R. Bautista with violation of Section 8,
Article II of Republic Act No. 6425, allegedly committed as follows: 2
"That on or about the 11th day of April 1988 in Caloocan City, MM,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused without any authority of law, did then and there willfully, unlawfully and
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 feloniously have in his custody, possession and control crushed marijuana
residue, which is a prohibited drug and knowing the same to be such.

Contrary to Law."

Upon his arraignment on April 21, 1988, appellant pleaded "not guilty" to the charge.
3 With the agreement of the public prosecutor, appellant was released after ling a
P10,000.00 bail bond. 4 After trial in due course, the Regional Trial Court of Caloocan City,
Branch 124, acting as a Special Criminal Court, rendered on May 19, 1989 a decision 5
convicting appellant of illegal possession of marijuana residue. The dispositive portion of
the decision reads: 6
"WHEREFORE, in view of all the foregoing, this Court nds the accused
ALAIN MANALILI Y DIZON guilty beyond reasonable doubt of violation of Section
8, Article II, of Republic Act No. 6425, as amended (Illegal Possession of
Marijuana residue), and hereby sentences (sic) said accused to suffer
imprisonment of SIX (6) YEARS and ONE (1) DAY; and to pay a ne of P6,000.00;
and to pay the costs.
xxx xxx xxx"

Appellant remained on provisional liberty. 7 Atty. Benjamin Razon, counsel for the
defense, led a Notice of Appeal 8 dated May 31, 1989. On April 19, 1993, Respondent
Court 9 promulgated its assailed Decision, denying the appeal and a rming the trial court:
10

"ACCORDINGLY, the decision appealed from dated May 19, 1989 is hereby
AFFIRMED in all respects. Costs against appellant."

Respondent Court 1 1 denied reconsideration via its assailed Resolution dated

January 20, 1994, disposing:
"ACCORDINGLY, accused-appellant's motion for reconsideration is, as is
hereby DENIED."

The Facts
Version of the Prosecution
The facts, as found by the trial court, are as follows: 12
"At about 2:10 o'clock in the afternoon of April 11, 1988, policemen from
the Anti-Narcotics Unit of the Kalookan City Police Station were conducting a
surveillance along A. Mabini street, Kalookan City, in front of the Kalookan City
Cemetery. The policemen were Pat. Romeo Espiritu and Pat. Anger Lumabas and
a driver named Arnold Enriquez was driving a Tamaraw vehicle which was the
o cial car of the Police Station of Kalookan City. The surveillance was being
made because of information that drug addicts were roaming the area in front of
the Kalookan City Cemetery.
Upon reaching the Kalookan City Cemetery, the policemen alighted from
their vehicle. They then chanced upon a male person in front of the cemetery who
appeared high on drugs. The male person was observed to have reddish eyes and
to be walking in a swaying manner. When this male person tried to avoid the
policemen, the latter approached him and introduced themselves as police
o cers. The policemen then asked the male person what he was holding in his
hands. The male person tried to resist. Pat. Romeo Espiritu asked the male person
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 if he could see what said male person had in his hands. The latter showed the
wallet and allowed Pat. Romeo Espiritu to examine the same. Pat. Espiritu took
the wallet and examined it. He found suspected crushed marijuana residue inside.
He kept the wallet and its marijuana contents. aisadc

The male person was then brought to the Anti-Narcotics Unit of the
Kalookan City Police Headquarters and was turned over to Cpl. Wilfredo
Tamondong for investigation. Pat. Espiritu also turned over to Cpl. Tamondong
the con scated wallet and its suspected marijuana contents. The man turned out
to be the accused ALAIN MANALILI y DIZON.
Upon receipt of the con scated suspected marijuana residue from Pat.
Espiritu, Cpl. Tamondong wrapped the same with a white sheet of paper on which
he wrote 'Evidence 'A' 4/11/88 Alain Manalili'. The white sheet of paper was
marked as Exhibit 'E-3'. The residue was originally wrapped in a smaller sheet of
folded paper. (Exhibit 'E-4').

Cpl. Tamondong next prepared a referral slip addressed to the NBI Forensic
Chemistry Section requesting a chemical analysis of the subject marijuana
residue (Exhibit 'D'). Cpl. Tamondong thereafter prepared a Joint A davit of the
apprehending policemen (Exhibit 'A'). Pat. Angel Lumabas handcarried the referral
slip (Exhibit 'D') to the National Bureau of Investigation (NBI), including the
subject marijuana residue for chemical analysis. The signature of Pat. Lumabas
appears on the left bottom corner of Exhibit 'D'.

The Forensic Chemistry Section of the NBI received the aforesaid referral
slip and the subject marijuana residue at 7:40 o'clock in the evening of April 11,
1988 as shown on the stamped portion of Exhibit 'D'.
It was NBI Aida Pascual who conducted the microscopic and chemical
examinations of the specimen which she identi ed. (Exhibit 'E') 1 3 Mrs. Pascual
referred to the subject specimen as 'crushed marijuana leaves' in her Certi cation
dated April 11, 1988 (Exhibit 'F'). 1 4 These crushed marijuana leaves gave positive
results for marijuana, according to the Certificate.
Mrs. Pascual also conducted a chromatographic examination of the
specimen. In this examination, she also found that the 'crushed marijuana leaves'
gave positive results for marijuana. She then prepared a Final Report of her
examinations (Exhibit 'G').
After conducting the examinations, Ms. Pascual placed the specimen in a
white letter-envelope and sealed it. (Exhibit 'E'). She then wrote identi cation
notes on this letter-envelope. (Exhibit 'E-1').

Pat. Lumabas carried the Certi cation marked as Exhibit 'F' from the NBI
Forensic Chemistry Section to Cpl. Tamondong. Upon receipt thereof, Cpl.
Tamondong prepared a referral slip addressed to the City Fiscal of Kalookan City.
(Exhibit 'C')"

On rebuttal, Pat. Espiritu testi ed that appellant was not riding a tricycle but was
walking in front of the cemetery when he was apprehended. 1 5
Version of the Defense
The trial court summarized the testimonies of the defense witnesses as follows: 16
"At about 2:00 o'clock in the afternoon of April 11, 1988, the accused
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 ALAIN MANALILI was aboard a tricycle at A. Mabini street near the Kalookan City
Cemetery on the way to his boarding house. Three policemen ordered the driver of
the tricycle to stop because the tricycle driver and his lone passenger were under
the in uence of marijuana. The policemen brought the accused and the tricycle
driver inside the Ford Fiera which the policemen were riding in. The policemen
then bodily searched the accused and the tricycle driver. At this point, the accused
asked the policemen why he was being searched and the policemen replied that
he (accused) was carrying marijuana. However, nothing was found on the
persons of the accused and the driver. The policemen allowed the tricycle driver to
go while they brought the accused to the police headquarters at Kalookan City
where they said they would again search the accused.
On the way to the police headquarters, the accused saw a neighbor and
signaled the latter to follow him. The neighbor thus followed the accused to the
Kalookan City Police Headquarters. Upon arrival thereat, the accused was asked
to remove his pants in the presence of said neighbor and another companion. The
policemen turned over the pants of the accused over a piece of bond paper trying
to look for marijuana. However, nothing was found, except for some dirt and dust.
This prompted the companion of the neighbor of the accused to tell the
policemen to release the accused. The accused was led to a cell. The policemen
later told the accused that they found marijuana inside the pockets of his pants.
At about 5:00 o'clock in the afternoon on the same day, the accused was
brought outside the cell and was led to the Ford Fiera. The accused was told by
the policemen to call his parents in order to 'settle' the case. The policemen who
led the accused to the Ford Fiera were Pat. Lumabas, Pat. Espiritu and Cpl.
Tamondong. Pat. Lumabas was the policeman who told the accused to call his
parents. The accused did not call his parents and he told the policemen that his
parents did not have any telephone.

At about 5:30 o'clock in the afternoon of the same day, the accused was
brought in the o ce of an inquest Fiscal. There, the accused told the Fiscal that
no marijuana was found on his person but the Fiscal told the accused not to say
anything. The accused was then brought back to the Kalookan City Jail.
Loreto Medenilla, the tricycle driver who was allegedly with the accused
when he and the accused were stopped by policemen and then bodily searched
on April 11, 1988, testi ed. He said that the policemen found nothing either on his
person or on the person of the accused when both were searched on April 11,
1988.
Roberto Abes, a neighbor of the accused, testi ed that he followed the
accused at the Kalookan City Police Headquarters on April 11, 1988. He said that
the police searched the accused who was made to take off his pants at the police
headquarters but no marijuana was found on the body of the accused".

Appellant, who was recalled to the stand as sur-rebuttal witness, presented several
pictures showing that tricycles were allowed to ply in front of the Caloocan Cemetery. 1 7
The Rulings of the Trial and the Appellate Courts
The trial court convicted petitioner of illegal possession of marijuana residue largely
on the strength of the arresting o cers testimony. Patrolmen Espiritu and Lumabas were
"neutral and disinterested" witnesses, testifying only on what transpired during the
performance of their duties. Substantially, they asserted that the appellant was found to be
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 in possession of a substance which was later identified as crushed marijuana residue.
The trial court disbelieved appellant's defense that this charge was merely "trumped
up," because the appellant neither took any legal action against the allegedly erring
policemen nor moved for a reinvestigation before the city fiscal of Kalookan City.
On appeal, Respondent Court found no proof that the decision of the trial court was
based on speculations, surmises or conjectures. On the alleged "serious" discrepancies in
the testimonies of the arresting o cers, the appellate court ruled that the said
inconsistencies were insubstantial to impair the essential veracity of the narration. It
further found petitioner's contention — that he could not be convicted of illegal possession
of marijuana residue — to be without merit, because the forensic chemist reported that
what she examined were marijuana leaves. cda

Issues
Petitioner assigns the following errors on the part of Respondent Court.
"I

The Court of Appeals erred in upholding the ndings of fact of the trial
court.

II
The Court of Appeals erred in upholding the conviction of (the) accused
(and) in ruling that the guilt of the accused had been proved (beyond) reasonable
doubt.
III

The Court of Appeals erred in not ruling that the inconsistencies in the
testimonies of the prosecution witnesses were material and substantial and not
minor.
IV

The Court of Appeals erred in not appreciating the evidence that the
accused was framed for the purpose of extorting money.
V

The Court of Appeals erred in not acquitting the accused when the
evidence presented is consistent with both innocence and guilt.

VI
The Court of Appeals erred in admitting the evidence of the prosecution
which are inadmissible in evidence."

Restated more concisely, petitioner questions (1) the admissibility of the evidence
against him, (2) the credibility of prosecution witnesses and the rejection by the trial and
the appellate courts of the defense of extortion, and (3) the su ciency of the prosecution
evidence to sustain his conviction.
The Court's Ruling
The petition has no merit.
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 First Issue: Admissibility of the Evidence Seized
During a Stop-and-Frisk
Petitioner protests the admission of the marijuana leaves found in his possession,
contending that they were products of an illegal search. The Solicitor General, in his
Comment dated July 5, 1994, which was adopted as memorandum for respondent,
counters that the inadmissibility of the marijuana leaves was waived because petitioner
never raised this issue in the proceedings below nor did he object to their admissibility in
evidence. He adds that, even assuming arguendo that there was no waiver, the search was
legal because it was incidental to a warrantless arrest under Section 5 (a), Rule 113 of the
Rules of Court.
We disagree with petitioner and hold that the search was valid, being akin to a stop-
and-frisk. In the landmark case of Terry vs . Ohio, 1 8 a stop-and-frisk was de ned as the
vernacular designation of the right of a police o cer to stop a citizen on the street,
interrogate him, and pat him for weapon(s):
". . . (W)here a police o cer observes an unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may be
afoot and that the persons with whom he is dealing may be armed and presently
dangerous, where in the course of investigating this behavior he identi ed himself
as a policeman and makes reasonable inquiries, and where nothing in the initial
stages of the encounter serves to dispel his reasonable fear for his own or others'
safety, he is entitled for the protection of himself and others in the area to
conduct a carefully limited search of the outer clothing of such persons in an
attempt to discover weapons which might be used to assault him. Such a search
is a reasonable search under the Fourth Amendment, and any weapon seized may
properly be introduced in evidence against the person from whom they were
taken." 1 9

In allowing such a search, the United States Supreme Court held that the interest of
effective crime prevention and detection allows a police o cer to approach a person, in
appropriate circumstances and manner, for purposes of investigating possible criminal
behavior even though there is insu cient probable cause to make an actual arrest. This
was the legitimate investigative function which O cer McFadden discharged in that case,
when he approached petitioner and his companion whom he observed to have hovered
alternately about a street corner for an extended period of time, while not waiting for
anyone; paused to stare in the same store window roughly 24 times; and conferred with a
third person. It would have been sloppy police work for an o cer of 30 years experience
to have failed to investigate this behavior further.
In admitting in evidence two guns seized during the stop-and-frisk, the US Supreme
Court held that what justi ed the limited search was the more immediate interest of the
police o cer in taking steps to assure himself that the person with whom he was dealing
was not armed with a weapon that could unexpectedly and fatally be used against him.
It did not, however, abandon the rule that the police must, whenever practicable,
obtain advance judicial approval of searches and seizures through the warrant procedure,
excused only by exigent circumstances.
In Philippine jurisprudence, the general rule is that a search and seizure must be
validated by a previously secured judicial warrant; otherwise, such search and seizure is
unconstitutional and subject to challenge. 2 0 Section 2, Article III of the 1987 Constitution,
gives this guarantee:
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 "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 a rmation 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."

Any evidence obtained in violation of the mentioned provision is legally inadmissible

in evidence as a "fruit of the poisonous tree," falling under the exclusionary rule:
"SEC. 3. ...
(2) Any evidence obtained in violation of . . . the preceding section
shall be inadmissible for any purpose in any proceeding."

This right, however, is not absolute. 2 1 The recent case of People vs. Lacerna
enumerated ve recognized exceptions to the rule against warrantless search and seizure,
viz.: "(1) search incidental to a lawful arrest, (2) search of moving vehicles, (3) seizure in
plain view, (4) customs search, and (5) waiver by the accused themselves of their right
against unreasonable search and seizure." 2 2 In People vs. Encinada, 2 3 the Court further
explained that "[in] these cases, the search and seizure may be made only with probable
cause as the essential requirement. Although the term eludes exact de nition, probable
cause for a search is, at best, de ned as a reasonable ground of suspicion, supported by
circumstances su ciently strong in themselves to warrant a cautious man in the belief
that the person accused is guilty of the offense with which he is charged; or the existence
of such facts and circumstances which could lead a reasonably discreet and prudent man
to believe that an offense has been committed and that the item(s), article(s) or object(s)
sought in connection with said offense or subject to seizure and destruction by law is in
the place to be searched."
Stop-and-frisk has already been adopted as another exception to the general rule
against a search without a warrant. In Posadas vs. Court of Appeals, 2 4 the Court held that
there were many instances where a search and seizure could be effected without
necessarily being preceded by an arrest, one of which was stop-and-frisk. In said case,
members of the Integrated National Police of Davao stopped petitioner, who was carrying
a buri bag and acting suspiciously. They found inside petitioner's bag one .38-cal. revolver
with two rounds of live ammunition, two live ammunitions for a .22-cal. gun and a tear gas
grenade. In upholding the legality of the search, the Court said that to require the police
o cers to search the bag only after they had obtained a search warrant might prove to be
useless, futile and much too late under the circumstances. In such a situation, it was
reasonable for a police o cer to stop a suspicious individual brie y in order to determine
his identity or to maintain the status quo while obtaining more information, rather than to
simply shrug his shoulders and allow a crime to occur.
In the case at hand, Patrolman Espiritu and his companions observed during their
surveillance that appellant had red eyes and was wobbling like a drunk along the Caloocan
City Cemetery, which according to police information was a popular hangout of drug
addicts. From his experience as a member of the Anti-Narcotics Unit of the Caloocan City
Police, such suspicious behavior was characteristic of drug addicts who were "high." The
policemen therefore had su cient reason to stop petitioner to investigate if he was
actually high on drugs. During such investigation, they found marijuana in petitioner's
possession: 2 5
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 "FISCAL RALAR:
Q And why were you conducting surveillance in front of the Caloocan
Cemetery, Sangandaan, Caloocan City?
A Because there were some informations that some drug dependents were
roaming around at A. Mabini Street in front of the Caloocan Cemetery,
Caloocan City.

xxx xxx xxx

Q While you were conducting your surveillance, together with Pat. Angel
Lumabas and one Arnold Enriquez, what happened, if any?
A We chanced upon one male person there in front of the Caloocan Cemetery
then when we called his attention he tried to avoid us, then prompting us to
approach him and introduce ourselves as police o cers in a polite
manner. cdtai

xxx xxx xxx

Q Could you describe to us the appearance of that person when you chanced
upon him?
A That person seems like he is high on drug.

Q How were you able to say Mr. Witness that that person that you chanced
upon was high on drug?

A Because his eyes were red and he was walking on a swaying manner.
Q What was he doing in particular when you chanced upon him?
A He was roaming around, sir.
Q You said that he avoided you, what did you do when he avoided you?
A We approached him and introduced ourselves as police o cers in a polite
manner, sir.
Q How did you introduce yourselves?

A In a polite manner, sir.

Q What did you say when you introduced yourselves?
A We asked him what he was holding in his hands, sir.
Q And what was the reaction of the person when you asked him what he was
holding in his hands?
A He tried to resist, sir.
Q When he tried to resist, what did you do?

A I requested him if I can see what was he was (sic) holding in his hands.
Q What was the answer of the person upon your request?

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 A He allowed me to examine that something in his hands, sir.
xxx xxx xxx
Q What was he holding?
A He was holding his wallet and when we opened it, there was a marijuana
(sic) crushed residue."

Furthermore, we concur with the Solicitor General's contention that petitioner

effectively waived the inadmissibility of any evidence illegally obtained when he led to
raise this issue or to object thereto during the trial. A valid waiver of a right, more
particularly of the constitutional right against unreasonable search, requires the
concurrence of the following requirements: (1) the right to be waived existed; (2) the
person waiving it had knowledge, actual or constructive, thereof; and (3) he or she had an
actual intention to relinquish the right. 2 6 Otherwise, the Courts will indulge every
reasonable presumption against waiver of fundamental safeguards and will not deduce
acquiescence from the failure to exercise this elementary right. In the present case,
however, petitioner is deemed to have waived such right for his failure to raise its violation
before the trial court. In petitions under Rule 45, as distinguished from an ordinary appeal
of criminal cases where the whole case is opened for review, the appeal is generally limited
to the errors assigned by petitioner. Issues not raised below cannot be pleaded for the
first time on appeal. 2 7
Second Issue: Assessment of Evidence
Petitioner also contends that the two arresting o cers' testimony contained
"polluted, irreconcilable and unexplained" contradictions which did not support petitioner's
conviction.
We disagree. Time and again, this Court has ruled that the trial court's assessment
of the credibility of witnesses, particularly when a rmed by the Court of Appeals as in this
case, is accorded great weight and respect, since it had the opportunity to observe their
demeanor and deportment as they testi ed before it. Unless substantial facts and
circumstances have been overlooked or misappreciated by the trial court which, if
considered, would materially affect the result of the case, we will not countenance a
departure from this rule. 2 8
We concur with Respondent Court's ruling:
"(e)ven assuming as contended by appellant that there had been some
inconsistencies in the prosecution witnesses' testimonies, We do not nd them
substantial enough to impair the essential veracity of their narration. In People vs.
Avila, it was held that — "As long as the witnesses concur on the material points,
slight differences in their remembrance of the details, do not re ect on the
essential veracity of their statements."

However, we nd that, aside from the presumption of regularity in the performance

of duty, the bestowal of full credence on Pat. Espiritu's testimony is justi ed by tangible
evidence on record. Despite Pat. Lumabas' contradictory testimony, that of Espiritu is
supported by the Joint A davit 2 9 signed by both arresting policemen. The question of
whether the marijuana was found inside petitioner's wallet or inside a plastic bag is
immaterial, considering that petitioner did not deny possession of said substance. Failure
to present the wallet in evidence did not negate that marijuana was found in petitioner's
possession. This shows that such contradiction is minor and does not destroy Espiritu's
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 credibility. 3 0
Third Issue: Sufficiency of Evidence
The elements of illegal possession of marijuana are: (a) the accused is in
possession of an item or object which is identi ed to be a prohibited drug; (b) such
possession is not authorized by law; and (c) the accused freely and consciously
possessed the said drug. 31
The substance found in petitioner's possession was identi ed by NBI Forensic
Chemist Aida Pascual to be crushed marijuana leaves. Petitioner's lack of authority to
possess these leaves was established. His awareness thereof was undeniable,
considering that petitioner was high on drugs when stopped by the policemen and that he
resisted when asked to show and identify the thing he was holding. Such behavior clearly
shows that petitioner knew that he was holding marijuana and that it was prohibited by
law. aisadc

Furthermore, like the trial and the appellate courts, we have not been given su cient
grounds to believe the extortion angle in this case. Petitioner did not le any administrative
or criminal case against the arresting o cers or present any evidence other than his bare
claim. His argument that he feared for his life was lame and unbelievable, considering that
he was released on bail and continued to be on bail as early as April 26, 1988. 3 2 Since
then, he could have made the charge in relative safety, as he was no longer in the custody
of the police. His defense of frame-up, like alibi, is viewed by this Court with disfavor,
because it is easy to concoct and fabricate. 3 3
The Proper Penalty
The trial and the appellate courts overlooked the Indeterminate Sentence Law (Act
No. 4103, as amended) by sentencing petitioner to a straight penalty of six years and one
day of imprisonment, aside from the imposed fine of six thousand pesos. This Act requires
the imposition of an indeterminate penalty:
"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 accused to an indeterminate sentence the maximum term of which shall be
that which, in view of the attending circumstances, could be properly imposed
under the rules of the 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 fixed by said law and the minimum shall not be less than the minimum
term prescribed by the same. (As amended by Act No. 4225.)
"SEC. 2. This Act shall not apply to persons convicted of offenses
punished with death penalty or life-imprisonment; to those convicted of treason;
to those convicted of misprision of treason, rebellion, sedition or espionage; to
those convicted of piracy; to those who are habitual delinquents; to those who
shall have escaped from con nement or evaded sentence; to those who having
been granted conditional pardon by the Chief Executive shall have violated the
terms thereof; to those whose maximum term of imprisonment does not exceed
one year, not to those already sentenced by nal judgment at the time of approval
of this Act, except as provided in Section 5 hereof." (Emphasis supplied)

The Dangerous Drugs Law, R.A. 6425, as amended by B.P. 179, imposes the
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 following penalty for illegal possession of marijuana:
"Sec. 8. ...
The penalty of imprisonment ranging from six years and one day to twelve
years and a ne ranging from six thousand to twelve thousand pesos shall be
imposed upon any person who, unless authorized by law, shall possess or use
Indian hemp."

Prescinding from the foregoing, the Court holds that the proper penalty is an
indeterminate sentence of imprisonment ranging from six years and one day to twelve
years. 3 4
WHEREFORE, the assailed Decision and Resolution are hereby AFFIRMED with
MODIFICATION. Petitioner is sentenced to suffer IMPRISONMENT of SIX (6) YEARS, as
minimum, to TWELVE (12) YEARS, as maximum, and to PAY a FINE of SIX THOUSAND
PESOS. Costs against petitioner.
SO ORDERED.
Narvasa, C .J ., Romero, Melo and Francisco, JJ ., concur.

Footnotes

1. Docketed as Crim. Case No. C-30549.

2. CA rollo, p. 4.

3. Records, p. 12.
4. Ibid., p. 23.
5. Penned by Judge Rene Victoriano.

6. CA rollo, p. 12D.
7. Records, p. 180.

8. p. 13.
9. The Eighth Division composed of JJ . Justo P. Torres, Jr., ponente. Reynato S. Puno
(both of whom are now members of the Supreme Court), and Pacita Canizares-Nye.

10. Rollo, pp. 45-51.

11. The former Eighth Division was reorganized and J . Emeterio C. Cui replaced J .
Reynato S. Puno.

12. Records, pp. 175-177. The narration of facts by the trial court is reproduced here
because it contains more details than the version of Respondent Court.
13. Exhibit "F," Exhibits Envelope, p. 2.

14. Exhibit "G," Exhibits Envelope, p. 3.

15. TSN, April 19, 1989, pp. 2-4.

16. Records, pp. 177-178. The Memorandum for the Petitioner did not present the defense's
version of the facts.
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 17. TSN, April 19, 1989, pp. 9-12.

18. 20 L Ed 2d 889; 88 S Ct 1868, 392 US 1, 900, June 10, 1968.

19. Herrera, A Handbook on Arrest, Search and Seizure and Custodial Investigation, 1995
ed., p. 185; and Terry vs. Ohio, supra, p. 911.

20. Pita vs. Court of Appeals, 178 SCRA 362, 376, October 5, 1989; People vs. Saycon, 236
SCRA 325, 328, September 5, 1994; People vs. Cuizon, 256 SCRA 325, 338, April 18,
1996; and People vs. Lacerna, G.R. No. 109250, September 5, 1997.

21. Section 12, Rule 126 of the Rules of Court, allows a search without a warrant for
"dangerous weapons or anything which may be used as proof of the commission of an
offense" of a person lawfully arrested.

22. People vs. Lacerna, supra; People vs. Fernandez, 239 SCRA 174, 182-183, December 13,
1994. In the latter case, Puno, J ., proposed a sixth exception: exigent circumstances, as
a catchall category that would encompass a number of diverse situations where some
kind of emergency makes obtaining a search warrant impractical, useless, dangerous or
unnecessary.

23. G.R. No. 116720, October 2, 1997, pp. 15-16, citing A Handbook on Arrest, supra, p. 40.

24. 188 SCRA 288, 292-293, August 2, 1990, per Gancayco, J ., concurred in by all members
of the First Division, namely: Narvasa, Cruz, Griño-Aquino and Medialdea, JJ .

25. TSN, May 27, 1988, pp. 6-9.

26. People vs. Salangga, 234 SCRA 407, 417-418 July 25, 1994, per Regalado, J.
27. Manila Bay Club Corporation vs. Court of Appeals, 245 SCRA 715, 729, July 11, 1995;
Chua vs. Court of Appeals, 206 SCRA 339, 344-345, February 19, 1992; and Baquiran vs.
Court of Appeals, 2 SCRA 873, 877, July 31, 1961.
28. People vs. Atad, G.R. No. 114105, January 16, 1997, p. 19; People vs. Lua, 256 SCRA
539, 546, April 26, 1996; and People vs. Exala , 221 SCRA 494, 498-499, April 22, 1993.

29. Exhibits "A" & "A-1," Exhibits Envelope, p. 1.

30. People vs. Lua, supra, p. 547.

31. People vs. Lacerna, supra.

32. Records, p. 23.

33. People vs. Velasco, 252 SCRA 135, 143, January 23, 1996, per Davide, J .
34. People vs. Tabar, 222 SCRA 144, 155, May 17, 1993, per Davide, J .

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