2/21/23, 6:31 PM [ G.R. No. 230825.

June 10, 2020 ]

THIRD DIVISION
[ G.R. No. 230825. June 10, 2020 ]
PASCASIO DUROPAN AND RAYMOND NIXER COLOMA,
PETITIONERS, V. PEOPLE OF THE PHILIPPINES, RESPONDENT.
DECISION

LEONEN, J.:

An in flagrante delicto arrest that does not comply with the overt act test is constitutionally
infirm.[1] Two elements must concur, the person to be arrested must execute an overt act
indicating that he or she has just committed, is actually committing, or is attempting to commit
a crime; and that such overt act is done in the presence or within the view of the arresting
officer.[2]

This resolves a Petition for Review on Certiorari[3] assailing the Court of Appeals Decision[4]
and Resolution.[5] The Court of Appeals upheld the Regional Trial Court Decision,[6] which
affirmed the Municipal Circuit Trial Court Decision[7] finding Pascasio Duropan (Duropan) and
Raymond Nixer Coloma (Coloma) guilty beyond reasonable doubt of Unlawful Arrest under
Article 269 of the Revised Penal Code.

Duropan and Coloma were charged in an Information which read:

That on or about the evening of the 7th day of March 2009, in Barangay Lincod,
Municipality of Maribojoc, Province of Bohol, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping each other, did then and there willfully,
unlawfully, feloniously, and not having authorized by law, arrest a certain WILLIAM
PACIS without reasonable ground, for the purpose of delivering him to the proper
authority; to the damage and prejudice of the offended victim in the amount to be
proved during the trial.

Acts committed contrary to the provision of Article 269 of the Revised Penal Code.
[8]

On arraignment, Duropan and Coloma pleaded not guilty to the crime charged. Trial then
ensued. As the Rule on Summary Procedure governed the case, witnesses' affidavits were
presented in lieu of their direct testimonies.[9]

According to the prosecution, Duropan and Coloma were Barangay Kagawad and Barangay
Tanod, respectively, of Lincod, Maribojoc, Bohol.[10]

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The Abatan Lincod Mangroves Nipa Growers Organization or simply, "ALIMANGO" is a

cooperative duly registered with the Cooperative Development Authority. Since 1998, it was
authorized to develop, utilize, and protect the Mangrove-Nipa Area in Lincod, Maribojoc,
Bohol. Its members cut, gather, and weave nipa palms.[11]

On March 7, 2009 at 11:30 a.m., Duropan, Coloma, and another barangay official saw William
Pacis (Pacis), Lino Baldoza Jr., Jeremias Moquila, Melvin Magbanua, and Ronnel Zambra
harvesting nipa palm in a plantation.[12] Coloma approached them and asked who gave them
authority to harvest. Pacis replied that they were ALIMANGO members.[13]

Doubting Pacis' claim, Duropan and Coloma pushed Pacis and his companions on board two (2)
paddle boats. Pacis then protested and inquired whether Duropan and Coloma can arrest them
without a warrant. Despite their objections, Pacis' group was brought to the Police Station of
Maribojoc, Bohol.[14]

Upon investigation, Pacis and his companions were released. The Maribojoc Chief of Police
determined that the barangay officials had no legal basis to arrest Pacis.[15]

In their affidavits, Duropan and Coloma claimed that the arrest was pursuant to Barangay
Resolution No. 2, which was enacted the day prior to the incident. It ordered the barangay
officials to conduct "surveillance on the mangrove/nipa area due to several complaints of illegal
cutting of mangroves and nipa leaves."[16]

They narrated that they were conducting a surveillance operation when they saw Pacis and his
group cutting nipa leaves. Duropan believed that Pacis was committing theft because he knew
that the nipa plantation belonged to Calvin Cabalit (Cabalit).[17]

Duropan and Coloma averred that Pacis' claim that he was a member of the "ALIMANGO
Association" was doubtful. According to them, ALIMANGO is an organization, not an
association.[18] While questioning the group, Pacis allegedly lost his temper and punched
Duropan's shoulder.[19] In light of his violent outburst, they brought him to the police station.
[20]

In its Decision,[21] the Municipal Circuit Trial Court of Cortes found Duropan and Coloma
guilty of Unlawful Arrest. It found that all the essential elements of the crime were present[22]
and noted that both accused admitted to knowing Pacis prior to the arrest.[23] It reasoned that
instead of immediately arresting them, Duropan and Coloma should have given them time to
prove their claim. It noted that this is relevant since "the accuseds [sic] themselves had no proof
that a certain Calvin Cabalit owns the area where Pacis and his group cut nipas."[24] It
dismissed the contention that Pacis assaulted Duropan.[25] The dispositive portion of the
Decision read:

WHEREFORE, finding accuseds [sic] Pascasio Duroan and Raymond Nixer Coloma
GUILTY beyond reasonable ground of the crime of Unlawful Arrest, each of them is
hereby sentenced to the penalty of imprisonment of from [sic] TWO (2) MONTHS

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AND ONE (1) DAY TO FOUR (4) MONTHS of arresto mayor and a fine of
P500.00 each, with subsidiary imprisonment in case of insolvency.

SO ORDERED.[26]

On May 17, 2013, the Regional Trial Court, Tagbilaran City rendered its Decision[27] affirming
Duropan and Coloma's guilt. It found that Pacis and his companions did not manifest any
suspicious behavior that justified an in flagrante delicto arrest.[28] It affirmed the Municipal
Circuit Trial Court's conclusion that the warrantless arrest was illegal.[29]

The Regional Trial Court modified the imposed penalty, thus:

WHEREFORE, the DECISION rendered by the 1st Municipal Circuit Trial Court,
Cortes-Antequera-Maribojoc, Cortes, Bohol dated November 23, 2011 in Criminal
Case No. M-1467 for Unlawful Arrest is AFFIRMED with MODIFICATION.
Accused-appellant PASCASIO DUROPAN and RAYMOND NIXER COLOMA are
found guilty beyond reasonable doubt for the crime of Unlawful Arrest penalized
under Article 269 of the Revised Penal Code and hereby imposes a penalty of
imprisonment of Two (2) months and One (1) Day of arresto mayor medium and
fine of P500.00 each plus costs.

SO ORDERED.[30]

Duropan and Coloma's Motion for Reconsideration was denied. Thus, they filed a Petition for
Review before the Court of Appeals.[31]

In its October 23, 2015 Decision,[32] the Court of Appeals denied the appeal and affirmed the
trial court's Decision:

WHEREFORE, the appeal is hereby DENIED. The Decision of the RTC, Branch 4,
Tagbilaran City, Bohol, in Criminal Case No. 15504 is hereby AFFIRMED with
modification that the payment of the fine shall earn 6% interest rate per annum
commencing from the finality of this decision until fully paid.

SO ORDERED.[33]

The Court of Appeals held that there was no sufficient basis for Duropan and Coloma to effect a
warrantless arrest.[34] There was no overt act which indicated that Pacis "had just committed,
was committing, or was about to commit a crime[.]"[35]

Duropan and Coloma moved for reconsideration, but the motion was denied in the Court of
Appeals Resolution.[36]

Thus, on March 10, 2017, Duropan and Coloma filed this Petition for Review on Certiorari.[37]

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Petitioners posit that not all elements of the crime were present. They argue that complainant
Pacis was not arrested, but was merely invited to the police station.[38] They contend that it was
their duty to investigate whether he was authorized to harvest the nipa leaves. They argue that
they had reasons to doubt his claim, considering that he referred to ALIMANGO Organization
as "ALIMANGO Association." Moreover, they believed in good faith that the land he was
harvesting from belonged to Cabalit.[39]

Petitioners maintain that complainant attacked them, which is why he was invited to the police
station.[40] In the alternative, they argue that if he was indeed arrested, there was a reasonable
ground for it.[41]

In its June 28, 2017 Resolution,[42] this Court required respondent to comment on the petition
within 10 days from notice. On August 23, 2017, respondent filed a Motion for Extension.[43]
Thereafter, on October 23, 2017, it filed its Comment.[44]

Respondent counters that petitioners' guilt was sufficiently proved,[45] as all the elements of the
crime were present.[46] It reasons that despite reports of rampant illegal cutting of mangrove and
nipa, petitioners ought to be diligent in verifying reports rather than surreptitiously arresting a
private person.[47] Further, contrary to petitioners' claim, they acted in bad faith in opting to
arrest complainant despite no genuine inquiry into the circumstances.[48]

In its January 10, 2018 Resolution,[49] this Court granted the motion for extension, noted
respondent's Comment on the petition, and required petitioners to file a reply within 10 days
from notice.

On March 2, 2018, petitioners filed their Reply.[50] This Court noted this in its June 6, 2018
Resolution.[51]

In their Reply, petitioners reiterate that not all elements of the crime of unlawful arrest were
attendant in this case,[52] since complainant was neither arrested nor detained for the purpose of
delivering him to the proper authorities.[53] Petitioners assert that holding them liable for the
crime of unlawful arrest is tantamount to requiring them "to be as sophisticated as the court [in]
determining [with] absolute certainty beyond reasonable doubt the ground for the arrest of
persons[.]"[54]

The issues for resolution are:

First, whether or not petitioners Pascasio Duropan and Raymond Nixer Coloma arrested
William Pacis.

Second, whether or not there was reasonable ground to arrest Pacis, which warrants petitioners'
acquittal from the charge of unlawful arrest.

This Court denies the Petition.

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I
The Municipal Circuit Trial Court charged and convicted petitioners with the crime of unlawful
arrest penalized under Article 269 of the Revised Penal Code, which states:

ARTICLE 269. Unlawful Arrest. — The penalty of arresto mayor and a fine not
exceeding 500 pesos shall be imposed upon any person who, in any case other than
those authorized by law, or without reasonable ground therefor, shall arrest or detain
another for the purpose of delivering him to the proper authorities.[55]

The crime of unlawful arrest punishes an offender's act of arresting or detaining another to
deliver him or her to the proper authorities, when the arrest or detention is not authorized, or
that there is no reasonable ground to arrest or detain the other.

As worded, any person may be indicted for the crime of unlawful arrest. This was affirmed in
People v. Malasugui,[56] where this Court considered whether a public officer may be held
liable under this crime.

Malasugui explained that a public officer may be exculpated from the crime of unlawful arrest
under specific circumstances:

[U]nder the law, members of the Insular Police or Constabulary as well as those of
the municipal police and of chartered cities like Manila and Baguio, and even of
townships (secs. 848, 2463, 2564, 2165 and 2383 of the Revised Administrative
Code) may make arrests without judicial warrant, not only when a crime is
committed or about to be committed in their presence, but also when there is reason
to believe or sufficient ground to suspect that one has been committed and that it was
committed by the person arrested by them. . . An arrest made under said
circumstances is not unlawful but perfectly justified[.][57]

Malasugui inferred that a public officer who does not have the authority to arrest shall be
criminally liable. Even when a public officer is authorized to arrest, he or she must have a
judicial warrant. However, when the enumerated circumstances exist, the absence of a judicial
warrant is justified and does not expose the public officer to criminal liability.

I (A)

There are several crimes defined in the Revised Penal Code pertaining to the curtailment of a
person's liberty. The crimes against the fundamental laws of the state[58] and the crimes against
personal liberty[59] are differentiated, thus:

Failure to judicially charge within the prescribed period renders the public officer
effecting the arrest liable for the crime of delay in the delivery of detained persons
under Article 125 of the Revised Penal Code. Further, if the warrantless arrest was
without any legal ground, the arresting officers become liable for arbitrary detention
under Article 124. However, if the arresting officers are not among those whose
official duty gives them the authority to arrest, they become liable for illegal
detention under Article 267 or 268. If the arrest is for the purpose of delivering the
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person arrested to the proper authorities, but it is done without any reasonable
ground or any of the circumstances for a valid warrantless arrest, the arresting
persons become liable for unlawful arrest under Article 269.[60] (Citations omitted,
emphasis supplied)

A public officer whose official duty does not involve the authority to arrest may be liable for
illegal detention. Illegal detention, defined under Articles 267[61] and 268[62] of the Revised
Penal Code penalizes "any private individual who shall kidnap or detain another, or in any other
manner deprive him [or her] of his [or her] liberty[.]"[63]

A public officer who has no duty to arrest or detain a person is deemed a private individual, in
contemplation of Articles 267 and 268 of the Revised Penal Code. Even when a public officer
has the legal duty to arrest or detain another, but he or she fails to show legal grounds for
detention, "the public officer is deemed to have acted in a private capacity and is considered a
'private individual."'[64]

In Osorio v. Navera,[65] Staff Sergeant Osorio, a ranking officer of the Armed Forces of the
Philippines, filed a Petition for Issuance of Writ of Habeas Corpus before the Court of Appeals.
He argued that he may not be charged with kidnapping and serious illegal detention under
Article 267 of the Revised Penal Code, considering that the felony penalizes private individuals
only. In rejecting this contention and affirming the Court of Appeals' denial of his petition, this
Court explained:

SSgt. Osorio was charged with kidnapping, a crime punishable under Article 267 of
the Revised Penal Code. Applying Republic Act No. 7055, Section 1, the case shall
be tried by a civil court, specifically by the Regional Trial Court, which has
jurisdiction over the crime of kidnapping. The processes which the trial court issued,
therefore, were valid.

Contrary to SSgt. Osorio's claim, the offense he committed was not service-
connected. The case filed against him is none of those enumerated under Articles 54
to 70, Articles 72 to 92, and Articles 95 to 97 of the Articles of War.

Further, kidnapping is not part of the functions of a soldier. Even if a public officer
has the legal duty to detain a person, the public officer must be able to show the
existence of legal grounds for the detention. Without these legal grounds, the public
officer is deemed to have acted in a private capacity and is considered a "private
individual." The public officer becomes liable for kidnapping and serious illegal
detention punishable by reclusion perpetua, not with arbitrary detention punished
with significantly lower penalties.

The cases cited by respondents are on point. In People v. Santiano, members of the
Philippine National Police were convicted of kidnapping with murder. On appeal,
they contended that they cannot be charged with kidnapping considering that they
were public officers. This Court rejected the argument and said that "in abducting
and taking away the victim, [the accused] did so neither in furtherance of official
function nor in the pursuit of authority vested in them. It is not, in fine, in relation to

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their office, but in purely private capacity, that they [committed the crime]." This
Court thus, affirmed the conviction of the accused in Santiano.

In People v. PO1 Trestiza, members of the Philippine National Police were initially
charged with kidnapping for ransom. The public prosecutor, however, filed a motion
to withdraw information before the trial court and filed a new one for robbery.
According to the public prosecutor, the accused cannot be charged with kidnapping
because the crime may only be committed by private individuals. Moreover, the
accused argued that the detention was allegedly part of a "legitimate police
operation."

The trial court denied the motion to withdraw. It examined the Pre­‐
Operation/Coordination Sheet presented by the defense and found that it was neither
authenticated nor its signatories presented in court. The defense failed to show proof
of a "legitimate police operation" and, based on Santiano, the accused were deemed
to have acted in a private capacity in detaining the victims. This Court affirmed the
conviction of the police officers for kidnapping.

It is not impossible for a public officer to be charged with and be convicted of

kidnapping as Santiano and Trestiza illustrated. SSgt. Osorio's claim that he was
charged with an "inexistent crime" because he is a public officer is, therefore,
incorrect.[66] (Citations omitted, emphasis in the original)

Thus, public officers who have no duty to arrest or detain a person, or those who may have such
authority but fail to justify the arrest or detention, may be indicted for kidnapping or serious
illegal detention or slight illegal detention.

I (B)

Inquiry is incumbent on whether the person implementing the arrest has the official duty to
arrest or detain, and whether he or she had reasonable ground to effect the apprehension in that
instance.

In the crime of unlawful arrest, the offender who arrested or detained another intended to deliver
the apprehended person to the proper authorities, considering he or she does not have the
authority. This act of conducting the apprehended persons to the proper authorities takes the
offense out of the crime of illegal detention.[67]

As early as 1908, in United States v. Fontanilla,[68] this Court had differentiated unlawful arrest
from illegal detention. Santiago Fontanilla (Fontanilla) found Apolonio de Peralta (de Peralta),
Emeterio Navalta (Navalta), and several laborers tilling his land. De Peralta insisted that the
land was his brother's. A fight ensued, which ended when Fontanilla captured and tied de Peralta
and Navalta with a rope. He then brought them to the municipal jail.

The trial court ruled that Fontanilla was guilty of illegal detention under Article 481 of the old
Penal Code.[69] This Court modified the ruling, and held that Fontanilla was not guilty of illegal
detention, but of unlawful detention under Article 483 of the Penal Code,[70] the precursor to
unlawful arrest under Article 269 of the Revised Penal Code:
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It does not appear that the persons whom the accused arrested committed any crime
which would justify their arrest without warrant by a peace officer, and the evidence
of record leaves no room for doubt that there was no justification whatever for their
arrest by a private person. The accused was not a peace officer, and was not
exercising any public function when he made the arrest, nor did he have any
authority to seize trespassers upon his land and commit them to the public jail, yet
the fact remains that he did apprehend and detain these parties, and turn them over to
the authorities.

Article 483 of the Penal Code provides that any person who, cases permitted by law
being excepted, shall without sufficient reason, apprehend or detain another, in order
to turn him over to the authorities, shall be punished with the penalties of arresto
menor and the fine of 325 to 3,250 pesetas, and the offense committed by the
accused clearly falls under the provisions of this article. The trial court was of
opinion that the offense committed is that prescribed by article 481, which provides
that any private person who shall lock up or detain another, or in any way deprive
him of his liberty shall be punished with the penalty of prision mayor. We think,
however, that the fact that the accused, after he had apprehended the complaining
witnesses, immediately conducted them to the municipal jail, and thus turned them
over to the authorities, takes the offense out of that article and brings it within the
purview of article 483.[71] (Emphasis supplied.)

Rule 113, Section 5 of the Revised Rules of Criminal Procedure[72] permits warrantless arrests
in certain instances. A public officer who does not have the official duty to arrest or detain may
lawfully do so, and effect a citizen's arrest. Petitioners admittedly attempted this here.

Finally, courts convict or acquit based on what the information charges and the evidence
presented during trial. This is called prosecutorial discretion in charging the offense. It is the
prosecutor who decides what felony or offense to charge based on the evidence presented to its
office.

Here, it was entirely left for prosecutorial discretion to charge either illegal detention or
unlawful arrest. For unlawful arrest, the added element to be proved is whether from the overt
facts of the case, there was a clear intent to submit the persons arrested or detained for the
purpose of prosecution. The prosecutor could have also charged illegal detention, which means
that the intent to present for legal detention and prosecution need not be proven. However, in
this case, the prosecutors decided to charge unlawful arrest only, with a significantly lower
penalty.

Thus, to prosecute accused of the crime of unlawful arrest successfully, the following elements
must be proved:

(1) that the offender arrests or detains another person;

(2) that the arrest or detention is to deliver the person to the proper authorities; and

(3) that the arrest or detention is not authorized by law or that there is no reasonable
ground to.

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We affirm the findings of the three tribunals that all the elements constituting the crime of
unlawful arrest are present in this case. Hence, petitioners' guilt beyond reasonable doubt is
likewise affirmed.

II

Despite petitioners' challenge, the prosecution established that petitioners arrested Pacis to
bring him to the proper authorities.

On one hand, the petitioners' claim that they merely invited Pacis to the police station to
investigate whether he had the authority to harvest nipa. On the other, they contend that he got
violent which led them to arrest him.

Whatever the reason for the apprehension, it is apparently conceded that Pacis was brought to
the Maribojoc police station, the proper authorities contemplated in Article 269 of the Revised
Penal Code. Moreover, he was arrested, within the meaning of the same article.

Arrest is defined in the Revised Rules of Criminal Procedure as "the taking of a person into
custody in order that he may be bound to answer for the commission of an offense."[73] It is "an
actual restraint of a person to be arrested, or by his submission to the custody of the person
making the arrest."[74]

However, jurisprudence instructs that there need not be an actual restraint for curtailment of
liberty to be characterized as an "arrest."

Babst v. National Intelligence Board[75] involved the National Intelligence Board's invitations to
and subsequent interrogations of several journalists. There, this Court declared:

The assailed proceedings have come to an end. The acts sought to be prohibited (i.e.,
the issuance of letters of invitation and subsequent interrogations) have therefore
been abated, thereby rendering the petition moot and academic as regards the
aforesaid matters.

Be that as it may, it is not idle to note that ordinarily, an invitation to attend a hearing
and answer some questions, which the person invited may heed or refuse at his
pleasure, is not illegal or constitutionally objectionable. Under certain
circumstances, however, such an invitation can easily assume a different appearance.
Thus, where the invitation comes from a powerful group composed predominantly
of ranking military officers issued at a time when the country has just emerged from
martial rule and when the suspension of the privilege of the writ of habeas corpus
has not entirely been lifted, and the designated interrogation site is a military camp,
the same can easily be taken, not as a strictly voluntary invitation which it purports
to be, but as an authoritative command which one can only defy at his peril,
especially where, as in the instant case, the invitation carries the ominous warning
that "failure to appear . . . shall be considered as a waiver . . . and this Committee
will be constrained to proceed in accordance with law." Fortunately, the NIB director
general and chairman saw the wisdom of terminating the proceedings and the
unwelcome interrogation.[76]

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Similarly, in Sanchez v. Demetriou,[77] among the issues discussed was whether then Mayor
Antonio L. Sanchez (Sanchez) was arrested. Commander Rex Piad of the Philippine National
Police invited Sanchez to appear at Camp Vicente Lim for investigation. This Court explained
what may be deemed an arrest:

Application of actual force, manual touching of the body, physical restraint or a

formal declaration of arrest is not required. It is enough that there be an intent on the
part of one of the parties to arrest the other and an intent on the part of the other to
submit, under the belief and impression that submission is necessary.[78] (Citation
omitted)

Although denominated as requests, invitations from high-ranking officials to a hearing in a

military camp were deemed arrests. This Court characterized them as authoritative commands
which may not be reasonably expected to be defied.

When the accused is in an environment made hostile by the presence and actuations of law
enforcers where it can be reasonably inferred that they had no choice except to willingly go with
them, then there is an arrest. The subjective view of the accused will be relevant—which
includes among others—their station in life and degree of education.

Intent to arrest by the arresting person or officer, whether through actual restraint or other
means, must also be clearly established.[79]

In People v. Milado,[80] Rogelio P. Milado (Milado) was carrying bricks of marijuana in his
backpack aboard a jeepney, on the way to Bontoc, Mountain Province. Acting upon an
information that there was a person transporting marijuana in the jeepney, the police officers set
up a checkpoint. In the checkpoint, the police identified Milado and told him to stay inside the
jeepney. They subsequently brought him to the police station, where they ordered him to open
his bag where the marijuana was kept. In order to determine whether or not there was a lawful
search incidental to an arrest, this Court first resolved whether there was an arrest, and whether
the arrest was lawfully made:

[I]t cannot be denied that when the policemen saw appellant, and that he matched the
description given to them by the asset, they were certain that he was the person they
were looking for. It was based on this conclusion that appellant was brought to the
police station. Although no "formal arrest" had yet been made , it is clear that
appellant had already been deprived of his liberty and taken into custody after the
policemen told him to stay inside the jeepney and instructed the driver to drive them
to the police station. The term "invited" may have been used by the police, but it was
obviously a command coming from three law enforcers who appellant could hardly
be expected to defy.

Thus, as a consequence of appellant's arrest, the policemen were authorized to look

at the contents of the black bag, on the ground that a contemporaneous search of a
person arrested[.][81] (Emphasis supplied)

Homar v. People[82] also involved the legality of a search incidental to a lawful arrest. Ongcoma
Hadji Bomar (Bomar) was jaywalking when the police accosted him and directed him where to
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properly cross the street. However, they noticed that Bomar was uneasy, searched him, and
found in his possession a sachet of shabu. This Court ruled that there was no lawful arrest and
reasoned as follows:

Arrest is the taking of a person into custody in order that he or she may be bound to
answer for the commission of an offense. It is effected by an actual restraint of the
person to be arrested or by that person's voluntary submission to the custody of the
one making the arrest. Neither the application of actual force, manual touching of the
body, or physical restraint, nor a formal declaration of arrest, is required. It is
enough that there be an intention on the part of one of the parties to arrest the
other, and that there be an intent on the part of the other to submit, under the
belief and impression that submission is necessary.

....

The indispensability of the intent to arrest an accused in a warrantless search

incident to a lawful arrest was emphasized in Luz vs. People of the Philippines. The
Court held that the shabu confiscated from the accused in that case was inadmissible
as evidence when the police officer who flagged him for traffic violation had no
intent to arrest him. According to the Court, due to the lack of intent to arrest, the
subsequent search was unlawful. This is notwithstanding the fact that the accused,
being caught in flagrante delicto for violating an ordinance, could have been
therefore lawfully stopped or arrested by the apprehending officers.[83]

Petitioners' defense fails as it merely argues on semantics. However they opt to call it, it was
evident that Pacis was taken into the barangay officials' custody based on their belief that he
committed a crime, either because he was allegedly committing theft, or because he became
violent. Their intent to arrest Pacis was clearly established.

In any case, these were undisputed and non-issues before the trial courts, as the Court of
Appeals found:

First, the records would reveal that the petitioners arrested the private complainant as
this fact was admitted by both of them. Second, they arrested him for the purpose of
bringing him to the proper authorities, in this case, the police station in Maribojoc,
Bohol.[84] (Emphasis supplied)

II (A)

At this juncture, this Court is tasked to determine whether petitioners were authorized to arrest
Pacis, and whether there was a reasonable ground to do so.

To recall, petitioner Duropan was a barangay kagawad, while petitioner Coloma was a
barangay tanod of Lincod, Maribojoc, Bohol. A barangay kagawad is a member of the
legislative council of the sangguniang barangay, which enacts laws of local application. He or
she is a person in authority, per Section 388 of the Local Government Code. Meanwhile, a
barangay tanod is deemed as an agent of persons in authority whose duties are described in
Section 388 of the Local Government Code:

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SECTION 388. Persons in Authority. — For purposes of the Revised Penal Code,
the punong barangay, sangguniang barangay members, and members of the
lupong tagapamayapa in each barangay shall be deemed as persons in authority
in their jurisdictions, while other barangay officials and members who may be
designated by law or ordinance and charged with the maintenance of public order,
protection and security of life and property, or the maintenance of a desirable and
balanced environment, and any barangay member who comes to the aid of persons
in authority, shall be deemed agents of persons in authority. (Emphasis supplied)

While deemed as persons in authority and agents of persons in authority, respectively, the
barangay kagawad and barangay tanod are not the public officers whose official duty is to
arrest or detain persons contemplated within the purview of Article 269 of the Revised Penal
Code.

It is undisputed that Pacis' apprehension was not pursuant to an arrest warrant. Rule 113,
Section 5 of the Revised Rules of Criminal Procedure enumerates instances when warrantless
arrests are lawful:

Section 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.

Manibog v. People[85] distinguished between the arresting officer's "probable cause to believe
that the person to be arrested committed an offense[,]" leading to a warrantless arrest, and a
reasonable suspicion that entails a "stop and frisk" search:

For valid warrantless arrests under Section 5(a) and (b), the arresting officer must
have personal knowledge of the offense. The difference is that under Section 5(a),
the arresting officer must have personally witnessed the crime; meanwhile, under
Section 5(b), the arresting officer must have had probable cause to believe that the
person to be arrested committed an offense. Nonetheless, whether under Section 5(a)
or (b), the lawful arrest generally precedes, or is substantially contemporaneous,
with the search.

In direct contrast with warrantless searches incidental to a lawful arrest, stop and
frisk searches are conducted to deter crime. People v. Cogaed underscored that they
are necessary for law enforcement, though never at the expense of violating a
citizen's right to privacy:
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"Stop and frisk" searches (sometimes referred to as Terry searches) are

necessary for law enforcement. That is, law enforcers should be given the
legal arsenal to prevent the commission of offenses. However, this should
be balanced with the need to protect the privacy of citizens in accordance
with Article III, Section 2 of the Constitution.

The balance lies in the concept of "suspiciousness" present in the

situation where the police officer finds himself or herself in. This may be
undoubtedly based on the experience of the police officer. Experienced
police officers have personal experience dealing with criminals and
criminal behavior. Hence, they should have the ability to discern —
based on facts that they themselves observe — whether an individual is
acting in a suspicious manner. Clearly, a basic criterion would be that the
police officer, with his or her personal knowledge, must observe the facts
leading to the suspicion of an illicit act.

Posadas v. Court of Appeals saw this Court uphold the warrantless search and
seizure done as a valid stop and frisk search. There, the accused's suspicious actions,
coupled with his attempt to flee when the police officers introduced themselves to
him, amounted to a reasonable suspicion that he was concealing something illegal in
his buri bag. However, Posadas failed to elaborate on or describe what the police
officers observed as the suspicious act that led them to search the accused's buri bag.

....

Manalili and Solayao upheld the warrantless searches conducted because "the police
officers[,] using their senses[,] observed facts that led to the suspicion." Furthermore,
the totality of the circumstances in each case provided sufficient and genuine reason
for them to suspect that something illicit was afoot.

For a valid stop and frisk search, the arresting officer must have had personal
knowledge of facts, which would engender a reasonable degree of suspicion of an
illicit act. Cogaed emphasized that anything less than the arresting officer's personal
observation of a suspicious circumstance as basis for the search is an infringement of
the "basic right to security of one's person and effects."

Malacat instructed that for a stop and frisk search to be valid, mere suspicion is not
enough; there should be a genuine reason, as determined by the police officer, to
warrant a belief that the person searched was carrying a weapon. In short, the totality
of circumstances should result in a genuine reason to justify a stop and frisk search.

In Esquillo v. People, the police officer approached and searched the accused after
seeing her put a clear plastic sachet in her cigarette case and try to flee from him.
This Court upheld the validity of the stop and frisk search conducted, since the
police officer's experience led him to reasonably suspect that the plastic sachet with
white crystalline substance m the cigarette case was a dangerous drug.

In his dissent in Esquillo, however, then Associate Justice, now Chief Justice Lucas
Bersamin (Chief Justice Bersamin) pointed out how the police officer admitted that

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only his curiosity upon seeing the accused put a plastic sachet in her cigarette case
prompted him to approach her. This was despite not seeing what was in it, as he was
standing three (3) meters away from her at that time. The dissent read:

For purposes of a valid Terry stop-and-frisk search, the test for the
existence of reasonable suspicion that a person is engaged in criminal
activity is the totality of the circumstances, viewed through the eyes of a
reasonable, prudent police officer. Yet, the totality of the circumstances
described by PO1 Cruzin did not suffice to engender any reasonable
suspicion in his mind. The petitioner's act, without more, was an
innocuous movement, absolutely not one to give rise in the mind of an
experienced officer to any belief that she had any weapon concealed
about her, or that she was probably committing a crime in the presence of
the officer. Neither should her act and the surrounding circumstances
engender any reasonable suspicion on the part of the officer that a
criminal activity was afoot. We should bear in mind that the Court has
frequently struck down the arrest of individuals whose overt acts did not
transgress the penal laws, or were wholly innocent. (Citation omitted)

Chief Justice Bersamin cautioned against warrantless searches based on just one (1)
suspicious circumstance. There should have been "more than one seemingly
innocent activity, which, taken together, warranted a reasonable inference of criminal
activity" to uphold the validity of a stop and frisk search.

Accordingly, to sustain the validity of a stop and frisk search, the arresting officer
should have personally observed two (2) or more suspicious circumstances, the
totality of which would then create a reasonable inference of criminal activity to
compel the arresting officer to investigate further.[86] (Emphasis supplied, citations
omitted)

Even granting that petitioners may have had the authority to inquire into the surrounding
circumstances, and that what transpired was a stop and frisk search, petitioners failed to cite any
suspicious circumstance that warranted Pacis' immediate arrest.

Petitioners argue that due to the numerous reports of stealing nipa leaves, it was reasonable for
them to suspect that Pacis violated the law. This argument falls short in light of three (3) things:
(1) they were aware that ALIMANGO existed, whose members were authorized to harvest nipa;
(2) they personally knew Pacis; and (3) they were uncertain that Cabalit owns the land where
they found Pacis and his group. We elaborate.

Upon hearing a reasonable explanation as to why Pacis was harvesting the nipa leaves,
petitioners had no reason to suspect any wrongdoing. Petitioners knew Pacis and are familiar
with ALIMANGO. Since it was easy to verify if he was indeed a member of the group,
prudence dictated that they first investigate. Had it turned out that he was not a member and was
indeed stealing from Cabalit, a warrant of arrest could have been obtained as they witnessed the
commission of the crime.

In addition, they were uncertain that Pacis and his companions were harvesting on Cabalit's
land. Petitioners admit that "there [were] no demarcation lines showing the exact boundaries"
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[87]of the two (2) plantations. Apart from Pacis mistakenly stating "association," instead of
"organization," there was no apparent irregularity. There was no reason to believe Pacis and his
group were breaking the law.

Petitioners invoke paragraph (a) to justify their warrantless arrest.[88] People v. Cogaed[89]
requires compliance with the "overt act" test in in flagrante delicto arrests:

[F]or a warrantless arrest of in flagrante delicto to be affected, two elements must

concur: (1) the person to be arrested must execute an overt act indicating that he [or
she] 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.[90] (Citations omitted)

"Failure to comply with the overt act test renders an in flagrante delicto arrest constitutionally
infirm."[91] Both elements that justify an in flagrante delicto arrest were absent in this case.

In arguing that they had reasonable ground to arrest Pacis, petitioners contend that they believed
in good faith that he was stealing nipa leaves from Cabalit's land. We are not convinced.

First, Pacis was merely cutting nipa leaves when petitioners came across him. This act by itself
is not a crime.

Second, the group displayed no signs of suspicious behavior. The only overt act they saw Pacis
and his companions do was harvesting nipa leaves from a plantation in plain view and in broad
daylight.

As the Court of Appeals explained:

Petitioners' defense will not hold water in light of the fact that the nipa palms cut by
the private complainant and his group belonged to an organization called
[ALIMANGO], of which the private complainant and his group are duly registered
members. As aptly pointed out by the [Regional Trial Court], the prudent act that
should have been done by the petitioners, as barangay officials, was to conduct a
thorough investigation on the reports of illegal cutting of mangroves or nipa leaves
in the area rather than resorting to the drastic move of arresting the private
complainant who had identified himself as a member of [ALlMANGO]. The
decision of the [Municipal Circuit Trial Court] also correctly pointed out that if
petitioners were doubtful of the private complainant's membership with
[ALIMANGO], they should have required him to furnish the proper documents to
prove his membership. The acts of petitioners in maliciously ignoring the claim of
membership of the private complainant, arresting the latter without reasonable
ground, and forcibly bringing the latter to the police station in Maribojoc, Bohol,
sufficiently constitutes bad faith. All these factual circumstances are enough to rebut
the presumption of good faith and regularity in the performance of official duties in
petitioners' favor.[92]

There was no overt act within petitioners' plain view which hinted that Pacis was committing a
crime. During his apprehension, Pacis has not committed, was not committing, nor was he about
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to commit a crime. The warrantless arrest in this case was unlawful.

III

As found by all three (3) tribunals, this Court affirms the ruling that petitioners are guilty of
unlawful arrest under Article 269 of the Revised Penal Code.

There being no aggravating or mitigating circumstance, the penalty for unlawful arrest should
be taken from the medium period of arresto mayor, which is two (2) months and (1) day to four
(4) months. Contrary to the penalty imposed by the Municipal Circuit Trial Court, the
Indeterminate Sentence Law finds no application in this case. It does not apply to "those whose
maximum term of imprisonment does not exceed one year."[93]

Thus, the Regional Trial Court correctly modified the penalty of imprisonment to two (2)
months and one (1) day, which is within the range of the imposable penalty, and affirmed the
tine of P500.00 each. The Court of Appeals correctly modified it to state that the payment of the
fine shall earn 6% interest rate per annum commencing from the finality of the decision until
fully paid.

We are not averse to the aggressive protection of our environment, especially of our diminishing
mangroves. The zeal displayed by the accused as barangay officials to comply with their duties
is, to some degree, commendable. However, there is a delicate line between zeal in enforcement
and disregard for the fundamental rights of our citizens. Unfortunately, the accused clearly and
unequivocally crossed that line.

Harvesting nipa indeed may be a leading cause for the deterioration of our mangroves. Both the
offended parties and the accused however are fully aware that for many of our citizens in rural
areas, the humble nipa is still the affordable option to build their shelters that will protect many
of those who still live in poverty against the harsh realities of our steadily deteriorating climate
conditions.

It is the poor who will harvest the nipa, not the rich.

Therefore, our laws and regulations are humane enough to grant licenses to some associations
allowing them to harvest sustainably and always mindful of the carrying capacity of our shared
ecology.

The accused should have been mindful of this reality. After all, they are from the same locality.
Their restraint could have been an expressive gesture of social justice. As public officers,
inquiry into their authority would have been sufficient. Accosting the offended parties was
uncalled for under the circumstances. Justice is better served. often by tempering it with mercy
and a humble dose of common sense.

We affirm their conviction.

WHEREFORE, the Petition for Review on Certiorari is DENIED. The Court of Appeals
October 23, 2015 Decision and February 1, 2017 Resolution in CA-G.R. CR No. 02182 are
AFFIRMED.

SO ORDERED.
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Gesmundo, Carandang, Zalameda, and Gaerlan, JJ., concur.

October 13, 2020

NOTICE OF JUDGMENT

Sirs/Mesdames:

Please take notice that on June 10, 2020 a Decision, copy attached hereto, was rendered by the
Supreme Court in the above-entitled case, the original of which was received by this Office on
October 13, 2020 at 1:21 p.m.

Very truly yours,

(Sgd.) MISAEL DOMINGO C.

BATTUNG III
Division Clerk of Court

[1] Veridiano v. People, 810 Phil. 658 (2017) [Per J. Leonen, Second Division].

[2] Id. citing People v. Cogaed, G.R. No. 200334, July 30, 2014 [Per J. Leonen, Third Division].

[3] Rollo, pp. 3-16.

[4]Id. at 23-33. The Decision dated October 23, 2015 docketed as CA-G.R. CR No. 02182 was
penned by Associate Justice Edward B. Contreras and concurred in by Associate Justices
Edgardo L. Delos Santos (Chairperson) and Renato C. Francisco of the Nineteenth Division,
Court of Appeals, Cebu City.

[5]Id. at 19-20. The Resolution dated February 1, 2017 docketed as CA-G.R. CR No. 02182
was penned by Associate Justice Edward B. Contreras and concurred in by Associate Justices
Edgardo L. Delos Santos (Chairperson) (now Associate Justice of the Supreme Court) and
Pamela Ann Abella Maxino of the Special Former Nineteenth Division, Court of Appeals, Cebu
City.

[6]Id. at 34-40. The Decision dated May 17, 2013 docketed as Criminal Case No. 15504 was
penned by Presiding Judge Sisinio C. Virtudazo of Branch 4, Regional Trial Court, Tagbilaran.

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[7]Id. at 42-48. The Decision dated November 23, 2011 in Criminal Case No. M-1467 was
penned by Presiding Judge Maria Elisa Ello-Ochoco of 1st Municipal Circuit Trial Court,
Cortes, Bohol.

[8] Rollo, p. 24. The Information was quoted in the Decision of the Court of Appeals.

[9] Id.

[10] Id.

[11] Id.

[12] Id. at 42.

[13] Id. at 24.

[14] Id. at 25.

[15] Id.

[16] Id.

[17] Id.

[18] Id at 44.

[19] Id. at 25.

[20] Id. The defense claimed that only Pacis was arrested.

[21] Id. at 42-48.

[22] Id. at 48.

[23] Id. at 47.

[24] Id. at 47.

[25] Id. at 48.

[26] Id. at 48.

[27] Id. at 34-40.

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[28] Id. at 39.

[29] Id. at 39.

[30] Id. at 39-40.

[31] Id. at 27.

[32] Id. at 23-33.

[33] Id. at 32.

[34] Id. at 31.

[35] Id. at 30.

[36] Id. at 19-20.

[37] Id. at 3-16.

[38] Id. at 8.

[39] Id. at 7.

[40] Id.

[41] Id.

[42] Id. at 50-51.

[43] Id. at 54-63.

[44] Id. at 74-89.

[45] Id. at 78.

[46] Id. at 79.

[47] Id. at 83.

[48] Id. at 85.

[49] Id. at 90-91.

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[50] Id. at 92-96.

[51] Id. at 100.

[52] Id. at 92.

[53] Id. at 93.

[54] Id. at 94-95.

[55] REV. PEN. CODE, art. 269.

[56] 63 Phil. 221 (1936) [Per J. Diaz, En Banc].

[57] Id. at 226-227.

[58] REV. PEN. CODE, Title II.

[59] REV. PEN. CODE, Title IX.

[60]Dissenting Opinion of Former Chief Justice Sereno in Lagman v. Medialdea, 812 Phil. 628
(2017) [Per J. Del Castillo, En Banc].

[61] REV. PEN. CODE, art. 267 provides:

Article 267. Kidnapping and serious illegal detention. - Any private individual who
shall kidnap or detain another, or in any other manner deprive him of his liberty,
shall suffer the penalty of reclusion perpetua to death:

1. If the kidnapping or detention shall have lasted more than five days.
2. If it shall have been committed simulating public authority.
3. If any serious physical injuries shall have been inflicted upon the person
kidnapped or detained; or if threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a minor, female or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the
purpose of extorting ransom from the victim or any other person, even if none of the
circumstances abovementioned were present in the commission of the offense.
(Emphasis supplied)

[62] REV. PEN. CODE, Article 268 provides:

Article 268. Slight illegal detention. - The penalty of reclusion temporal shall be
imposed upon any private individual who shall commit the crimes described in the
next preceding article without the attendance of any of circumstances enumerated
therein... (Emphasis supplied)

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[63] REV. PEN. CODE, Article 267.

[64]Osorio v. Navera, G.R. No. 223272, February 26, 2018, 856 SCRA 435, [Per J. Leonen,
Third Division].

[65] Id.

[66] Id. at 455-456.

[67] See U.S. v. Fontanilla, 11 Phil. 233 (1908) [Per J. Carson, En Banc].

[68] Id.

[69] THE OLD PENAL CODE, art. 481 provides:

ARTICLE 481. Any private individual who shall lock up or detain another, or in any
manner deprive him of his liberty, shall suffer the penalty of prisión mayor.
The same penalty shall be imposed upon any person who shall provide a place for
the commission of the crime.
If the offender shall release the person so locked up or detained, within three days
after the commencement of the detention, without having attained the purpose
intended, and before the institution of criminal proceedings against him, the penalty
shall be prisión correccional in its minimum and medium degrees and a fine of not
less than three hundred and twenty-five and not more than three thousand two
hundred and fifty pesetas.

[70] THE OLD PENAL CODE, art. 483 provides:

ARTICLE 483. Any person who in any case other than that permitted by law, or
without reasonable ground therefor, shall arrest or detain another for the purpose of
taking the latter before the authorities shall suffer the penalties of arresto menor and
a fine of not less than three hundred and twenty-five and not more than three
thousand two hundred and fifty pesetas.

Any person who shall unlawfully detain any other person and shall fail to give
account of his whereabouts, or to prove that he has set such person at liberty, shall
suffer a penalty from cadena temporal in its maximum degree to cadena perpetua.

[71] U.S. v. Fontanilla, 11 Phil. 233, 235 ( 1908) [Per J. Carson, En Banc].

[72] RULES OF COURT, Rule 113, sec. 5 provides:

Section 5. Arrest Without Warrant; When Lawful. — A peace officer or a private

person ma y, 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;
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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.

[73] RULES OF COURT, Rule 113, sec. 1.

[74] RULES OF COURT, Rule 113, sec. 2.

[75] 217 Phil. 302 (1984) [Per J. Plana, En Banc].

[76] Id. at 311.

[77] 298 Phil. 421 (1993) [Per J. Cruz, En Banc].

[78] Id. at 432.

[79] Homar v. People, 768 Phil. 195, 208 (2015) [Per J. Brion, Second Division].

[80] 462 Phil. 411 (2003) [Per J. Azcuna, First Division].

[81] Id. at 417.

[82] 768 Phil. 195 (2015) [Per J. Brion, Second Division].

[83] Id. at 206-208.

[84] Rollo, p. 28.

[85] G.R. No. 211214, March 20, 2019,

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Division].

[86] Id.

[87] Rollo, p. 7.

[88] Id. at 8.

[89] 740 Phil. 212 (2014) [Per J. Leonen, Third Division].

[90] Id. at 238.

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[91] Veridiano v. People, 810 Phil. 642, 658 (2017) [Per J. Leonen, Second Division].

[92] Rollo, p. 29.

[93] Act No. 4225 (1935), sec. 2.

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