STOP AND FRISK - RESEARCH

A stop-and-frisk search is often confused with a warrantless search incidental to a lawful arrest. However, the
distinctions between the two have already been settled by the Court in Malacat v. CA:[16]
In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search, the
legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used as a
pretext for conducting a search. In this instance, the law requires that there first be a lawful arrest before a
search can be made - the process cannot be reversed. At bottom, assuming a valid arrest, the arresting officer may
search the person of the arrestee and the area within which the latter may reach for a weapon or for evidence to
destroy, and seize any money or property found which was used in the commission of the crime, or the fruit of the
crime, or that which may be used as evidence, or which might furnish the arrestee with the means of escaping or
committing violence.

x x x x

We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited protective search of
outer clothing for weapons," as laid down in Terry, thus:
We merely hold today that where a police officer observes 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 identifies
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 [to] 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.
Other notable points of Terry are that while probable cause is not required to conduct a "stop and frisk" it
nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk," A genuine reason must exist,
in light of the police officer's experience and surrounding conditions, to warrant the belief that the person
detained has weapons concealed about him. Finally, a "stop-and-frisk" serves a two-fold interest: (1) the general
interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under
appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible
criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation
which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a
deadly weapon that could unexpectedly and fatally be used against the police officer. [17] (emphases supplied and
citations omitted)
III.

A valid stop-and-frisk was illustrated in the cases of Posadas v. CA (Posadas),[18] Manalili v.

In Posadas, two policemen were conducting a surveillance within the premises of the Rizal Memorial Colleges when
they spotted the accused carrying a buri bag and acting suspiciously. They approached the accused and identified
themselves as police officers. The accused attempted to flee but his attempt to get away was thwarted by the
policemen who then checked the buri bag wherein they found guns, ammunition, and a grenade.[21]

In Manalili, police officers were patrolling the Caloocan City cemetery when they chanced upon a man who had
reddish eyes and was walking in a swaying manner. When this person tried to avoid the policemen, the latter
approached him and introduced themselves as police officers. The policemen then asked what he was holding in his
hands, but he tried to resist.[22]

In Solayao, police operatives were carrying out an intelligence patrol to verify reports on the presence of armed
persons roaming around the barangays of Caibiran, Biliran. Later on, they met the group of accused-appellant. The
police officers became suspicious when they observed that the men were drunk and that accused-appellant himself
was wearing a camouflage uniform or a jungle suit. Upon seeing the government agents, accused- appellant's
companions fled. Thus, the police officers found justifiable reason to stop and frisk the accused. [23]

IV.
On the other hand, the Court found no sufficient justification in the stop and frisk committed by the police in People v.
Cogaed (Cogaed)[24] In that case, the police officers received a message from an informant that one Marvin Buya
would be transporting marijuana from Barangay Lun-Oy, San Gabriel, La Union, to the Poblacion of San Gabriel, La
Union. A checkpoint was set up and when a passenger jeepney from Barangay Lun-Oy arrived at the checkpoint, the
jeepney driver disembarked and signaled to the police officers that the two male passengers were carrying marijuana.

SPO1 Taracatac approached the two male passengers who were later identified as Victor Cogaed and Santiago
Dayao. SPO1 Taracatac asked Cogaed and Dayao what their bags contained. Cogaed and Dayao told SPO1
Taracatac that they did not know since they were transporting the bags as a favor for. their barrio mate named
Marvin, After this exchange, Cogaed opened the blue bag, revealing three bricks of what looked like marijuana. The
Court, in that case, invalidated the search and seizure ruling that there were no suspicious circumstances that
preceded the arrest. Also, in Cogaed, there was a discussion of various jurisprudence wherein the Court adjudged
that there was no valid stop-and-frisk:

The circumstances of this case are analogous to People v. Aruta. In that case, an informant told the police that a
certain "Aling Rosa" would be bringing in drugs from Baguio City by bus. At the bus terminal, the police officers
prepared themselves. The informant pointed at a woman crossing the street and identified her as "Aling Rosa." The
police apprehended "Aling Rosa," and they alleged that she allowed them to look inside her bag. The bag contained
marijuana leaves.

In Aruta, this court found that the search and seizure conducted was illegal. There were no suspicious circumstances
that preceded Aruta's arrest and the subsequent search and seizure. It was only the informant that prompted the
police to apprehend her. The evidence obtained was not admissible because of the illegal search. Consequently,
Aruta was acquitted.

Aruta is almost identical to this case, except that it was the jeepney driver, not the police's informant, who informed
the police that Cogaed was "suspicious."

The facts in Aruta are also similar to the facts in People v. Aminnudin. Here, the National Bureau of Investigation
(NBI) acted upon a tip, naming Aminnudin as somebody possessing drugs. The NBI waited for the vessel to arrive
and accosted Aminnudin while he was disembarking from a boat. Like in the case at bar, the NBI inspected
Aminnudin's bag and found bundles of what turned out to be marijuana leaves. The court declared that the search
and seizure was illegal. Aminnudin was acquitted.

x x x x

People v. Chua also presents almost the same circumstances. In this case, the police had been receiving information
that the accused was distributing drugs in "different karaoke bars in Angeles City." One night, the police received
information that this drug dealer would be dealing drugs at the Thunder Inn Hotel so they conducted a stakeout. A car
"arrived and parked" at the hotel. The informant told the police that the man parked at the hotel was dealing drugs.
The man alighted from his car. He was carrying a juice box. The police immediately apprehended him and discovered
live ammunition and drugs in his person and in the juice box he was holding.

Like in Aruta, this court did not find anything unusual or suspicious about Chua's situation when the police
apprehended him and ruled that "[t]here was no valid 'stop-and-frisk'."[25] (citations omitted)
The Court finds that the totality of the circumstances in this case is not sufficient to incite a genuine reason that would
justify a stop-and-frisk search on accused-appellant. An examination of the records reveals that no overt physical act
could be properly attributed to accused-appellant as to rouse suspicion in the minds of the arresting officers that he
had just committed, was committing, or was about to commit a crime. P/Insp. Orate testified as follows:

more than one seemingly innocent activity from which, taken together, warranted a reasonable inference of criminal
activity." This principle was subsequently recognized in the recent cases of Cogaed[28] and Sanchez v. People[29] In
the case at bar, accused-appellant was just a passenger carrying his bag. There is nothing suspicious much less
criminal in said act. Moreover, such circumstance, by itself, could not have led the arresting officers to believe that
accused-appellant was in possession of marijuana.

V.
As regards search incidental to a lawful arrest, it is worth emphasizing that a lawful arrest must precede the search of
a person and his belongings; the process cannot be reversed. [30] Thus, it becomes imperative to determine whether
accused-appellant's warrantless arrest was valid.

Section 5, Rule 113 of the Rules of Criminal Procedure enumerates the instances wherein a peace officer or a private
person may lawfully arrest a person even without a warrant:

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.
Paragraph (a) of Section 5 is commonly known as an in flagrante delicto arrest. For a warrantless arrest of an
accused caught in flagrante delicto to be valid, two requisites must concur: (]) the person to be arrested must execute
an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2)
such overt act is done in the presence or within the view of the arresting officer. [31] On the other hand, the elements
of an arrest effected in hot pursuit under paragraph (b) of Section 5 (arrest effected in hot pursuit) are: first, an
offense has just been committed; and second, the arresting officer has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it. [32]

Here, without the tip provided by the confidential informant, accused-appellant could not be said to have executed
any overt act in the presence or within the view of the arresting officers which would indicate that he was committing
the crime of illegal possession of marijuana. Neither did the arresting officers have personal knowledge of facts
indicating that accused-appellant had just committed an offense. Again, without the tipped information, accused-
appellant would just have been any other bus passenger who was minding his own business and eager to reach his
destination. It must be remembered that warrantless arrests are mere exceptions to the constitutional right of a
person against unreasonable searches and seizures, thus, they must be strictly construed against the government
and its agents. While the campaign against proliferation of illegal drugs is indeed a noble objective, the same must be
conducted in a manner which does not trample upon well-established constitutional rights. Truly, the end does not
justify the means.

VI.

The appellate court, in convicting accused-appellant, reasoned that the search and seizure is valid because it could
be considered as search of a moving vehicle:

Warrantless search and seizure of moving vehicles are allowed in recognition of the impracticability of securing a
warrant under said circumstances as the vehicle can be quickly moved out of the locality or jurisdiction in which the
warrant may be sought. Peace officers in such cases, however, are limited to routine checks where the examination
of the vehicle is limited to visual inspection. When a vehicle is stopped and subjected to an extensive search, such
would be constitutionally permissible only if the officers made it upon probable cause, i.e., upon a belief, reasonably
arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains [an] item, article
or object which by law is subject to seizure and destruction.[33]
The search in this case, however, could not be classified as a search of a moving vehicle. In this particular type of
search, the vehicle is the target and not a specific person. Further, in search of a moving vehicle, the vehicle was
intentionally used as a means to transport illegal items. It is worthy to note that the information relayed to the police
officers was that a passenger of that particular bus was carrying marijuana such that when the police officers boarded
the bus, they searched the bag of the person matching the description given by their informant and not the cargo or
contents of the said bus. Moreover, in this case, it just so happened that the alleged drug courier was a bus
passenger. To extend to such breadth the scope of searches on moving vehicles would open the floodgates to
unbridled warrantless searches which can be conducted by the mere expedient of waiting for the target person to ride
a motor vehicle, setting up a checkpoint along the route of that vehicle, and then stopping such vehicle when it arrives
at the checkpoint in order to search the target person.

VII.

Any evidence obtained in violation of the right against unreasonable searches and seizures shall be inadmissible for
any purpose in any proceeding.[34] This exclusionary rule instructs that evidence obtained and confiscated on the
occasion of such unreasonable searches and seizures are deemed tainted and should be excluded for being the
proverbial fruit of a poisonous tree. In other words, evidence obtained from unreasonable searches and seizures shall
be inadmissible in evidence for any purpose in any proceeding. [35]

Without the confiscated marijuana, no evidence is left to convict accused-appellant. Thus, an acquittal is warranted,
despite accused-appellant's failure to object to the regularity of his arrest before arraignment. The legality of an arrest
affects only the jurisdiction of the court over the person of the accused. A waiver of an illegal, warrantless arrest does
not carry with it a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest. [36]

The warrantless search cannot be justified under the reasonable suspicion requirement in "stop and frisk" searches.

A "stop and frisk" search is defined in People v. Chua[107] as "the act of a police officer to stop a citizen on the street,
interrogate him, and pat him for weapon(s) or contraband." [108] Thus, the allowable scope of a "stop and frisk" search
is limited to a "protective search of outer clothing for weapons."[109]

Although a "stop and frisk" search is a necessary law enforcement measure specifically directed towards crime
prevention, there is a need to safeguard the right of individuals against unreasonable searches and seizures. [110]

Law enforcers do not have unbridled discretion in conducting "stop and frisk" searches. While probable cause is not
required, a "stop and frisk" search cannot be validated on the basis of a suspicion or hunch. [111] Law enforcers must
have a genuine reason to believe, based on their experience and the particular circumstances of each case, that
criminal activity may be afoot.[112] Reliance on one (1) suspicious activity alone, or none at all, cannot produce a
reasonable search.[113]

In Manalili v. Court of Appeals,[114] the police officers conducted surveillance operations in Caloocan City Cemetery,
a place reportedly frequented by drug addicts.[115] They chanced upon a male person who had "reddish eyes and
[was] walking in a swaying manner."[116] Suspecting that the man was high on drugs, the police officers approached
him, introduced themselves, and asked him what he was holding.[117] However, the man resisted.[118] Upon further
investigation, the police officers found marijuana in the man's possession. [119] This Court held that the circumstances
of the case gave the police officers justifiable reason to stop the man and investigate if he was high on drugs. [120]

In People v. Solayao,[121] the police officers were conducting an intelligence patrol to verify reports on the presence
of armed persons within Caibiran.[122] They met a group of drunk men, one (1) of whom was the accused in a
camouflage uniform.[123] When the police officers approached, his companions fled leaving behind the accused who
was told not to run away.[124] One (1) of the police officers introduced himself and seized from the accused a firearm
wrapped in dry coconut leaves.[125] This Court likewise found justifiable reason to stop and frisk the accused when
"his companions fled upon seeing the government agents."[126]

The "stop and frisk" searches in these two (2) cases were considered valid because the accused in both cases
exhibited overt acts that gave law enforcers genuine reason to conduct a "stop and frisk" search. In contrast
with Manalili and Solayao, the warrantless search in Cogaed[127] was considered as an invalid "stop and frisk" search
because of the absence of a single suspicious circumstance that would justify a warrantless search.
In Cogaed, the police officers received information that a certain Marvin Buya would be transporting marijuana.[128] A
passenger jeepney passed through the checkpoint set up by the police officers. The driver then disembarked and
signaled that two (2) male passengers were carrying marijuana. [129] The police officers approached the two (2) men,
who were later identified as Victor Cogaed (Cogaed) and Santiago Dayao, and inquired about the contents of their
bags.[130]

Upon further investigation, the police officers discovered three (3) bricks of marijuana in Cogaed's bag. [131] In holding
that the "stop and frisk" search was invalid, this Court reasoned that "[t]here was not a single suspicious
circumstance" that gave the police officers genuine reason to stop the two (2) men and search their
belongings.[132] Cogaed did not exhibit any overt act indicating that he was in possession of marijuana.[133]

Similar to Cogaed, petitioner in this case was a mere passenger in a jeepney who did not exhibit any act that would
give police officers reasonable suspicion to believe that he had drugs in his possession. Reasonable persons will act
in a nervous manner in any check point. There was no evidence to show that the police had basis or personal
knowledge that would reasonably allow them to infer anything suspicious.

IV

Moreover, petitioner's silence or lack of resistance can hardly be considered as consent to the warrantless search.
Although the right against unreasonable searches and seizures may be surrendered through a valid waiver, the
prosecution must prove that the waiver was executed with clear and convincing evidence.[134] Consent to a
warrantless search and seizure must be "unequivocal, specific, intelligently given . . . [and unattended] by duress or
coercion."[135]

The validity of a consented warrantless search is determined by the totality of the circumstances.[136] This may
involve an inquiry into the environment in which the consent was given such as "the presence of coercive police
procedures."[137]

Mere passive conformity or silence to the warrantless search is only an implied acquiescence, which amounts to no
consent at all.[138] In Cogaed, this Court observed:

Cogaed's silence or lack of aggressive objection was a natural reaction to a coercive environment brought about by
the police officer's excessive intrusion into his private space. The prosecution and the police carry the burden of
showing that the waiver of a constitutional right is one which is knowing, intelligent, and free from any coercion. In all
cases, such waivers are not to be presumed.[139]
The presence of a coercive environment negates the claim that petitioner consented to the warrantless search.