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People v. Tudtud, GR 144037, 26 September 2003
Sometime during the months of July and August 1999, the Toril Police Station, Davao City received a report from a “civilian asset” named Bobong Solier about a certain Noel Tudtud.
Solier related that his neighbours have been complaining about Tudtud, who was allegedly responsible for the proliferation of marijuana in their area. Relating to the report, the police conducted surveillance in Solier’s neighbourhood in Sapa, Toril, Davao City. For 5 days, they gathered information and leared that Tudtud was involved in illegal drugs. According to his neighbours, Tudtud was engaged in selling marijuana.
Solier informed the police that Tudtud had headed to Cotabato and would be back later that day with new stocks of marijuana. Solier described Tudtud as big bodied and short, and usually wore a hat. At around 4:00 pm that same day, a team of policemen posted themselves at the corner of Saipon and McArthur Highway to await. Tudtud’s arrival. All wore civilian clothes. About 8:00 pm, 2 men disembarked from a bus and helped each other carry a carton marked “King Flakes.” Standing some 5 feet away from the men, PO1 Desierto and PO1 Floreta observed that one of the men fit Tudtud’s description. The same man also toted a plastic bag. PO1Floreta and PO1 Desierto then approached the suspects and identified themselves as police officers. PO1 Desierto informed them that the police had received information that stocks of illegal drugs would be arriving that night. The man who resembled Tudtud’s description denied that he was carrying any drugs. PO1 Desierto asked if he could see the contents of the box. Tudtud then said “it was alright” and let them see the box which contained bundles of dried fish, one wrapped in a plastic bag and another in newspapers. When the bundles were unwrapped, there contained marijuana leaves.
The police arrested Tudtud and his comapanion. They were charged with illegal possession of prohibited drugs before the RTC of Davao City which convicted the accused.
ISSUE: Whether or not Tudtud’s implied acquiescence (Tudtud’s statement of “it’s alright”) is considered a waiver.
NO. The right against unreasonable searched and seizures is secured by Sec. 2, Art. 3 of the Constitution. Appellants implied acquiescence, if at all, could not have been more than mere passive conformity given under coercive or intimidating circumstances and is, thus, considered no consent at all within the purview of the constitutional guarantee. Consequently, appellants lack of objection to the search and seizure is not tantamount to a waiver of his constitutional right or a voluntary submission to the warrantless search and seizure.
As the search of appellant’s box does not come under the recognized exceptions to a valid warrantless search, the marijuana leaves obtained thereby are inadmissible in evidence. And as there is no evidence other than the hearsay testimony of the arresting officers and their informant, the conviction of appellants cannot be sustained.
Finally, there is an effective waiver of rights against unreasonable searches and seizures if the following requisites are present:
It must appear that the rights exist;
The person involved had knowledge, actual or constructive, of the existence of such right;
Said person had an actual intention to relinquish the right.
Here, the prosecution failed to establish the second and third requisites. Records disclose that when the police officers introduced themselves as such and requested appellant that they see the contents of the carton box supposedly containing the marijuana, appellant Tudtud said it was alright. He did not resist and opened the box himself.
Acquiescence in the loss of fundamental rights is not to be presumed. The fact that a person failed to object to a search does not amount to permission thereto.