G.R. No.

152950 August 3, 2006

PEOPLE OF THE PHILIPPINES, HON. LOURDES F. GATBALITE, Presiding

Judge, Branch 56, Regional Trial Court, Angeles City and ATTY. BENNIE
NICDAO, Special Prosecutor, Special Operative Group, Economic
Intelligence & Investigation Bureau, Petitioners,
vs.
CHRISTOPHER CHOI, Respondent.

DECISION

CORONA, J.:

This petition for review on certiorari 1 seeks the reversal of the decision 2 of the
Court of Appeals (CA) dated April 10, 2002 in CA-G.R. SP No. 59587, the
dispositive portion of which read:

WHEREFORE, the petition for certiorari and prohibition is GRANTED. Search

Warrant No. 99-17 is deemed NULL and VOID and SET ASIDE.
Respondent ATTY. BENNY NICDAO is prohibited from using in evidence the
articles seized by virtue of Search Warrant No. 99-17 in Crim. Case No. I.S. No.
99-8116.

SO ORDERED. 3

The factual antecedents follow.

On April 27, 1999, Mario P. Nieto, Intelligence Operative of the Economic

Intelligence and Investigation Bureau, Department of Finance, applied for a
search warrant with the Regional Trial Court (RTC) of Angeles City, Pampanga,
Branch 56, 4 against respondent Christopher Choi for violation of Section 168,
paragraphs 2 and 3 (a) and (c), in relation to Section 169 of RA 8293, 5 also
known as the Intellectual Property Code. 6

After examination of the applicant and his witnesses, namely, Max Cavalera and
David Lee Sealey, Judge Lourdes F. Gatbalite issued Search Warrant No. 99-17
dated April 27, 1999 worded as follows:

TO ANY PEACE OFFICER:

G r e e t i n g s:

It appearing to the satisfaction of the undersigned, after examining under oath in

the form of searching and probing questions, the applicant, MARIO P. NIETO,
Intelligence Operative, Economic Intelligence Investigation Bureau, Department
of Finance, and his witnesses Max Cavalera and David Lee Sealey that there are
good and sufficient reasons to believe that Christopher Choi of No. 25-13
Columbia Street, Carmenville Subd., Angeles City has in his possession, control
and custody [r]eams and packs of fake Marlboro Red Cigarettes, as well as
cardboard cases of fake Marlboro Red Cigarettes (each cardboard case contains
two (2) [m]aster [c]ases of Marlboro and each [m]aster case contains fifty (50)
reams) being distributed, kept and sold thereat in violation of Section 168, par. 2
and 3 (a) and (c) in relation to Section 169 of R.A. 8293;

You are hereby commanded to make an immediate search at anytime of the day
or night of the above-premises and forthwith seize and take possession of the
aforedescribed items found at the residence/warehouse of Christopher Choi at
No. 25-13 Columbia Street, Carmenville Subd., Angeles City.

THEREFORE, seize and bring the said articles to the undersigned to be dealt
with in accordance with law.

You are hereby further directed to submit a return within ten (10) days from
today.

Given under my hand this 27th day of April, 1999 at Angeles City, Philippines. 7

The search was conducted on the same date. 8

On May 12, 1999, respondent filed a "motion to quash search warrant" 9 and a
"supplemental motion to quash"10 on June 22, 1999. Both were denied by Judge
Gatbalite in an order dated November 29, 1999. 11Reconsideration was likewise
denied. 12

On June 19, 2000, respondent filed a petition for certiorari and

prohibition 13 before the CA. He alleged that Judge Gatbalite committed grave
abuse of discretion in refusing to quash the search warrant, arguing that probable
cause was not sufficiently established as the examination conducted was not
probing and exhaustive and the warrant did not particularly describe the place to
be searched. Respondent also prayed that Atty. Bennie Nicdao 14 be prohibited
from using as evidence the articles seized by virtue of the search warrant. This
was granted by the CA in a decision dated April 10, 2002.

According to the CA, in determining whether there was probable cause to believe
that the cigarettes purchased by Nieto were fake and in violation of RA
8293, 15 Judge Gatbalite failed to ask searching and probing questions of witness
David Lee Sealey. 16 The examination of Sealey went this way:

Court:
Q There was testimony here given by Mr. Mario Nieto and Max Cavalera, that
fake Marlboro cigarettes bought by them from Michael Chua, Christopher Choi
and Johnny Chang were turned over to you for examination, is that correct?

A Yes, your Honor.

Q After the same had been turned over to you, what did you do with the said
merchandise, if you did anything?

A I examined the sample of cigarettes and their packaging bearing the Marlboro
Trade Marks which were suspected to be produc[ed] and manufactured by La
Suerte or [with] the permission of Philip Morris.

Q What was the result of your examination?

A Based on the packaging of the packs, the color of the box and the printing on
the front side of the packs and the cigarettes themselves, I concluded that they
are counterfeit or unauthorized product[s].

Q Do you have any knowledge of this person named Christopher Choi?

A None, your Honor.

Q There is an affidavit here marked as exhibit, executed by one David Lee

Sealey, do you know this David Lee Sealey?

A Yes, your Honor, I am the one.

Q Whose signature is this appearing on the printed name David Lee Sealey?

A This is my signature, your Honor.

Q Do you affirm and confirm other contents of this affidavit?

A Yes, your Honor.

Court:

Thats all. 17

In addition, the CA ruled that Judge Gatbalite committed grave abuse of

discretion when she merely relied on the conclusion of Sealey that the cigarettes
he received from Nieto were fake. She should have at least required Sealey to
present the alleged fake Marlboro cigarettes and the genuine ones for
comparison, instead of relying on his testimony alone. The CA reasoned that this
was an absolute requirement under the Supreme Court ruling in 20th Century
Fox Film Corporation v. Court of Appeals. 18

Hence, this petition.

The People of the Philippines aver that the CA erred in finding that Judge
Gatbalite committed grave abuse of discretion in issuing the search warrant
allegedly because she failed to determine probable cause pursuant to Sections 4
and 5 of Rule 126 of the Rules of Court. 19 The People assail the finding of the
CA that, in issuing the search warrant, Judge Gatbalite purportedly did not
comply strictly with the requirement to determine the existence of probable cause
by personally examining the applicant and his witnesses through searching
questions and answers. The People also assert that the CA erred in applying the
doctrine in 20th Century Fox Film Corporation 20 since it had already been
superseded by Columbia Pictures, Inc. v. Court of Appeals. 21

We rule for the People of the Philippines.

Sections 4 and 5 of Rule 126 state:

Sec. 4. Requisites for issuing search warrant. A search warrant shall not issue
except upon probable cause in connection with one specific offense to be
determined personally by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce, and particularly describing
the place to be searched and the things to be seized which may be anywhere in
the Philippines.

Sec. 5. Examination of complainant; record. The judge must, before issuing

the warrant, personally examine in the form of searching questions and answers,
in writing and under oath, the complainant and the witnesses he may produce on
facts personally known to them and attach to the record their sworn statements,
together with the affidavits submitted.

According to the foregoing provisions, a search warrant can be issued only upon
a finding of probable cause. Probable cause means such facts and
circumstances which would lead a reasonably discreet and prudent man to
believe that an offense has been committed and that the objects sought in
connection with the offense are in the place sought to be searched. 22 The
determination of the existence of probable cause requires the following:

(1) the judge must examine the complainant and his witnesses personally;

(2) the examination must be under oath and

(3) the examination must be reduced in writing in the form of searching questions
and answers. 23
The searching questions propounded to the applicant and the witnesses depend
largely on the discretion of the judge. Although there is no hard-and-fast rule
governing how a judge should conduct his examination, it is axiomatic that the
examination must be probing and exhaustive, not merely routinary, general,
peripheral, perfunctory or pro-forma. 24 The judge must not simply rehash the
contents of the affidavit but must make his own inquiry on the intent and
justification of the application. 25 The questions should not merely be repetitious
of the averments stated in the affidavits or depositions of the applicant and the
witnesses. 26 If the judge fails to determine probable cause by personally
examining the applicant and his witnesses in the form of searching questions
before issuing a search warrant, grave abuse of discretion is committed. 27

The determination of probable cause does not call for the application of rules and
standards of proof that a judgment of conviction requires after trial on the merits.
As the term implies, probable cause is concerned with probability, not absolute or
even moral certainty. The standards of judgment are those of a reasonably
prudent man, not the exacting calibrations of a judge after a full-blown trial. 28 No
law or rule states that probable cause requires a specific kind of evidence. No
formula or fixed rule for its determination exists. 29 Probable cause is determined
in the light of conditions obtaining in a given situation. 30 The entirety of the
questions propounded by the court and the answers thereto must be considered
by the judge. 31

In this case, aside from the testimony of Sealey, petitioner judge also heard the
testimony of applicant Nieto:

Q: In connection with Search Warrant 99-17, are you the same Mario Nieto who
is the applicant in this application for search warrant filed today April 27, 1999?

A: Yes, your Honor.

Q: Do you know this Christopher Choi referred to herein?

A: Yes, your Honor.

Q: Why do you know him?

A: He was introduced to us by Michael Chua, your Honor.

Q: As what?

A: As the supplier for the goods.

Q: Subject of the application?

A: Yes, your Honor, in violation of Section 169 of R.A. 8293.

Q: How did you know him?

A: When I was conducting a test-buy operation against Mr. Michael Chua, Mr.
Michael Chua told me that the bulk of supply if we need more supply we can get
from the source, a certain Christopher Choi, who lives in the same village and
who is actually the supplier for the entire region.

Q: Where did you see him. This Christopher Choi?

A: I went to his house, your Honor.

Q: Where?

A: At No. 25-13 Columbia St., Carmenville Subd., Angeles City, Pampanga.

Q: Upon arriving at the place what did you do?

A: Upon arriving at the place, your Honor, I introduced myself as the one who
was referred by a certain Michael Chua who is interested in buying the Marlboro
cigarettes from him and he accommodated me and showed me the sample that
he has and I was able to procure the samples from him, the samples that like
what we did to the others were inspected by certain Mr. David Lee Sealey, the
representative and authority from the Philip Morris.

Q: Did you actually buy those samples?

A: Yes, your Honor, I got the samples form Mr. Christopher Choi and I submitted
them to Mr. David Lee Sealey.

Q: How many Marlboro cigarettes did you buy?

A: We bought only one ream, P17.00 per pack.

Q: Do you know from what particular place the house of Christopher Choi did he
got (sic) those samples?

A: The volume stocks were found inside the house, they are almost everywhere
in the house of Christopher Choi.

Q: There is a sketch here attached to your application, can you point it out here?

A: Yes, your Honor, at the warehouse, in the storage room as shown in the lay
out of the house, it is adjacent to the residential house as shown in the sketch.

Q: You went to the warehouse?

A: We were shown [the] entire area by the supplier, Christopher Choi. As a
matter of fact he was trying to show us how much volume he has and his
capacity to supply. 32

Max Cavalera, a witness who accompanied Nieto during the "test-buy"

operation, 33 also testified:

Q How about this Christopher Choi?

A As Ive said earlier, he was one of those identified by the informant storing and
selling counterfeit Marlboro cigarettes, so on April 22, 1999 we conducted a
surveillance and we were able to confirm that the said cigarettes are being stored
at the subject place.

Q At what place?

A At 25-13 Columbia St., Carmenville Subd., Angeles City. On April 23, 1999 at
about 8:30 p.m., Mario Nieto and I again went to the subject place to conduct a
test-buy operation. [A]fter Mr. Choi had been convinced of our intention to buy
cigarettes from him, he brought us to his warehouse where he showed to us
several cardboard cases of Marlboro cigarettes. 34

Given the foregoing testimonies and applying the established standards in

determining probable cause, we cannot say that Judge Gatbalite committed
grave abuse of discretion in issuing the search warrant. Her questions were
sufficiently probing, not at all superficial and perfunctory. The testimonies were
consistent with each other and the narration of facts was credible. The
testimonies and other evidence on record constituted adequate bases to
establish probable cause that the alleged offense had been committed.

Since probable cause is dependent largely on the opinion and findings of the
judge who conducted the examination and who had the opportunity to question
the applicant and his witnesses, 35 the findings of the judge deserve great weight.
The reviewing court can overturn such findings only upon proof that the judge
disregarded the facts before him or ignored the clear dictates of reason. 36 We
thus find no reason to disturb Judge Gatbalites findings.

Furthermore, as correctly pointed out by petitioners, 20th Century Fox Film

Corporation, insofar as it required the presentation of the master tapes for
comparison with the pirated copies for a search warrant to issue, had already
been superseded by Columbia Pictures, Inc. v. Court of Appeals:

More to the point, it is felt that the reasonableness of the added requirement
in 20th Century Fox calling for the production of the master tapes of the
copyrighted films for determination of probable cause in copyright infringement
cases needs revisiting and clarification.
 xxx xxx xxx

In fine, the supposed pronunciamento in said case regarding the necessity for
the presentation of the master tapes of the copyrighted films for the validity of
search warrants should at most be understood to merely serve as a guidepost in
determining the existence of probable cause in copyright infringement
cases where there is doubt as to the true nexus between the master tape and the
pirated copies. An objective and careful reading of the decision in said case
could lead to no other conclusion than that said directive was hardly intended
to be a sweeping and inflexible requirement in all or similar copyright
infringement cases. Judicial dicta should always be construed within the factual
matrix of their parturition, otherwise a careless interpretation thereof could
unfairly fault the writer with the vice of overstatement and the reader with the
fallacy of undue generalization.

xxx xxx xxx

It is evidently incorrect to suggest, as the ruling in 20th Century Fox may

appear to do, that in copyright infringement cases, the presentation of
master tapes of the copyrighted films is always necessary to meet the
requirement of probable cause and that, in the absence thereof, there can
be no finding of probable cause for the issuance of a search warrant. It is
true that such master tapes are object evidence, with the merit that in this class
of evidence the ascertainment of the controverted fact is made through
demonstrations involving the direct use of the senses of the presiding magistrate.
Such auxiliary procedure, however, does not rule out the use of testimonial or
documentary evidence, depositions, admissions or other classes of evidence
tending to prove the factum probandum, especially where the production in court
of object evidence would result in delay, inconvenience or expenses out of
proportion to its evidentiary value.

xxx xxx xxx

Accordingly, to restrict the exercise of discretion by a judge by adding a particular

requirement (the presentation of master tapes, as intimated by 20th Century Fox)
not provided nor implied in the law for a finding of probable cause is beyond the
realm of judicial competence or statesmanship. It serves no purpose but to
stultify and constrict the judicious exercise of a courts prerogatives and to
denigrate the judicial duty of determining the existence of probable cause to a
mere ministerial or mechanical function. There is, to repeat, no law or rule which
requires that the existence of probable cause is or should be determined solely
by a specific kind of evidence. Surely, this could not have been contemplated by
the framers of the Constitution, and we do not believe that the Court intended the
statement in 20th Century Fox regarding master tapes as the dictum for all
seasons and reasons in infringement cases. 37 (emphasis supplied)
It is obvious that 20th Century Fox Film Corporation should not be applied to the
present case since this involves the offense of unfair competition and not
copyright infringement. More importantly, as pronounced by the Court
in Columbia Pictures, Inc., the judges exercise of discretion should not be unduly
restricted by adding a requirement that is not sanctioned by law.

WHEREFORE, the petition is hereby GRANTED. The assailed decision of the

Court of Appeals dated April 10, 2002 in CA-G.R. SP No. 59587
is REVERSED and SET ASIDE. Judgment is hereby rendered declaring Search
Warrant No. 99-17 as VALID.

SO ORDERED.
G.R. No. 140657 October 25, 2004

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
CESAR O. DELOS REYES, respondent.

DECISION

CALLEJO, SR., J.:

Before the Court is a petition for review on certiorari of the Decision1 of the Court
of Appeals (CA) in CA-G.R. SP No. 51759 granting the petition for certiorari of
Cesar O. delos Reyes and nullifying Search Warrant No. 98-905 issued on June
18, 1998 by Judge Manuela F. Lorenzo of the Regional Trial Court (RTC) of
Manila, Branch 43.

The Antecedents

On June 18, 1998, SPO3 Benjamin Nuguid of the Western Police District applied
for a search warrant with the RTC of Manila, Branch 43, against Cesar Reyes
alias "Cesar Itlog." In support of his application, Nuguid submitted his affidavit
and that of Alexis Tan, a housewife. Nuguid and Tan also testified in support of
the application. After the court conducted examination of the said witnesses, it
issued on even date Search Warrant No. 98-905 authorizing the search of the
house allegedly under the possession and custody of one Cesar Reyes alias
"Cesar Itlog," at No. 2600 Oroquieta Street, Sta. Cruz, Manila, worded as follows:

SEARCH WARRANT
TO ANY PEACE OFFICER:

GREETINGS:

Upon sufficient showing of probable cause, after determination personally

made by the undersigned on examination under oath of the applicant and
his witness, by means of searching questions and answers, that
respondent Cesar Reyes alias "Cesar Itlog" has in his possession, custody
and control at the house and premises at 2600 Oroquieta St., Sta. Cruz,
Manila, the following items:

a) undetermined amount of methamphetamine hydrochloride; and

b) drug paraphernalia

in violation of Republic Act No. 6425 as amended;

 You are hereby commanded to make an immediate search at anytime of
the day or night of the house and premises above-mentioned and forthwith
seize and take possession of the above-cited items and to bring said items
to the undersigned to be dealt with as the law require. Further, you are
required to submit the return within ten (10) days from today.

GIVEN UNDER MY HAND AND SEAL this 18th day of June 1998 at the
City of Manila.

MANUELA F. LORENZO
J u d g e2

The policemen conducted a search not only of the house at No. 2600 Oroquieta
Street, Sta Cruz, Manila, which turned out to be the house of respondent Cesar
delos Reyes, but also of the car and motorcycle owned by the latter, bearing
Plate Nos. UBS 463 and TA 8077, respectively. The car and the motorcycle
happened to be parked near the house.

As per the receipt of the property signed by Nuguid, the search of the house, the
car and the motorcycle yielded the following:

That in the course of orderly search at the premises of Cesar Reyes alias
"Cesar Itlog," inside his room at the ground floor was a steel vault and
when forced open it yields 13 transparent plastic bags containing [an]
undetermined amount of white crystalline substance suspected to be
Methamphetamine Hydrochloride or Shabu, three (3) weighing scales
"Tamita" broad, drugs paraphernalia and 38 pcs. of Valium-10, also found
atop his drawer; a .9mm "Smith & Wesson" pistol, Model 39mm with SN-
A643638 with magazines loaded with ammo, one (1) loaded magazine of
9mm and 36 rounds of .25 cal. ammunition inside his drawer, one (1)
plastic transparent bag containing white crystalline substance suspected to
be Methamphetamine Hydrochloride or Shabu and three (3) 12-gauge
shotgun ammo. His personal car, a black VITARA bearing plate No. UBS
463 parked beside his house was also search[ed] in the presence of [a]
Bgy. Kagawad and found inside tucked beneath the drivers seat are three
(3) sealed transparent plastic bags containing white crystalline substance
wrapped in a mail envelope suspected to be Methamphetamine
Hydrochloride or Shabu and in his sport Honda Motorcycle 900cc with
plate No. TA 8077 also yields one (1) transparent plastic sachet containing
white crystalline substance suspected to be Methamphetamine
Hydrochloride or Shabu at the motorbike back compartment.3

According to the Certification prepared by the NBI Forensic Chemistry Division,

the crystalline substances contained in the transparent plastic bags which were
seized in the respondents house, car and motorcycle tested positive for
methamphetamine hydrochloride.4
Thereafter, two Informations were filed with the RTC of Manila, Branch 41,
against the respondent for violation of Republic Act No. 6425, as amended by
Rep. Act No. 8294, docketed as Criminal Cases Nos. 98-165628 and 98-165629,
viz:

That on or about June 18, 1998, in the City of Manila, Philippines, the said
accused without being authorized by law to possess or use any regulated
drug, did then and there willfully, unlawfully and knowingly have in his
possession and under his custody and control eighteen (18) transparent
plastic bags (small and big) with [a] total net weight of eight hundred
eighty-six point eight (886.8) grams of white crystalline substance known
as "shabu" containing methamphetamine hydrochloride, a regulate drug,
without the corresponding license or prescription thereof.

Contrary to law.5

That on or about June 18, 1998, in the City of Manila, Philippines, said accused
did then and there willfully, unlawfully and feloniously have in his possession and
under his custody and control of one (1) .9mm Smith & Wesson pistol, Model 39
with Serial Number-A643638 with two magazines loaded with ammunitions, 36
rounds of .25 caliber ammunition, three (3) 12-gauge shotgun ammunitions,
without first having secured from the proper authorities the necessary license
therefor.

Contrary to law.6

The respondent filed a motion to quash the informations on the following

grounds: (a) as shown by their testimony before the trial court, applicant Nuguid
and his witness Tan had no personal knowledge of the factual allegations in their
affidavits which were appended to the application for a search warrant; (b) the
factual allegations contained in the said affidavits and their testimonies do not
support a finding of probable cause for violation of Rep. Act No. 6425, as
amended; and (c) Nuguid and Tan did not personally know the respondent as
well as the latters house because first, Tan identified the illicit drug seller as
Cesar Reyes alias "Cesar Itlog" while the respondents name is Cesar delos
Reyes; and, second, the said witnesses described the house as consisting of a
two-storey structure with one bedroom located at Oroquieta Street, Sta. Cruz,
Manila.

On August 11, 1998, the trial court issued an Order denying the respondents
motion. The court also denied his motion for reconsideration of said order.

The respondent forthwith filed a petition for certiorari against Nuguid and the
Public Prosecutor therein in the CA, alleging, inter alia, that the questions
propounded by RTC Judge Manuela F. Lorenzo on Nuguid and Tan were leading
and not searching. He also alleged that Judge Lorenzo delegated the
examination of Tan to Nuguid, and allowed the latter to question her. He,
likewise, reiterated that Tan and Nuguid did not know him personally because
they identified him as "Cesar Reyes" when his full name was Cesar delos Reyes.
Furthermore, contrary to the claim of Tan and Nuguid that his house was a two-
storey edifice located at Oroquieta Street, Sta. Cruz, Manila, said house was only
a one-storey structure located at No. 2600 Oroquieta Street, Sta. Cruz, Manila.

The respondent also assailed the search of his house, car and motorcycle on the
ground that he was not there when the search was conducted and that no
barangay officials were present as required by Section 7, Rule 126 of the 1997
Rules of Criminal Procedure.

On October 15, 1999, the CA rendered a Decision granting the petition and
nullifying the search warrant. The decretal portion reads:

WHEREFORE, all the foregoing considered, the petition is GRANTED.

The questioned Order dated January 11, 1999 as well as Search Warrant
No. 98-905 dated June 18, 1998 are both hereby ANNULLED and SET
ASIDE. Consequently, let a Writ of Prohibition be issued permanently
enjoining respondents from using in evidence the articles seized by virtue
of Search Warrant No. 98-905 in Criminal Case Nos. 98-165628 and 98-
165629. The seized articles obtained by virtue of Search Warrant 98-905,
consisting of regulated drug, guns and ammunitions, are
hereby ORDERED delivered and turned over to the proper authorities
concerned for disposition in accordance with law.

No costs.

SO ORDERED.7

The appellate court ruled that (a) the RTC delegated its duty to determine
probable cause to the applicant; (b) the application for a search warrant was
based on hearsay evidence; and (c) the application for the search warrant issued
was filed more than four (4) weeks from the alleged time the offense took place;
hence, was considered "stale."

After the denial of its motion for reconsideration of the said decision, the People
of the Philippines filed the instant petition for review of the decision, alleging that

THE COURT OF APPEALS [EIGHTH DIVISION] GRAVELY ERRED IN

DECLARING SEARCH WARRANT NO. 98-905 NULL AND VOID
DESPITE (i) THE UNMISTAKABLE MANNER BY WHICH THE
INVESTIGATING JUDGE CONDUCTED A PERSONAL EXAMINATION
 OF THE APPLICANT AND HIS WITNESS; (ii) THE SEARCHING
QUESTIONS PROPOUNDED AND ANSWERS OBTAINED; AND (iii) THE
PERSONAL KNOWLEDGE OF THE APPLICANT AND HIS WITNESS OF
THE FACTS THAT INEVITABLY JUSTIFIES THE ISSUANCE OF THE
SEARCH WARRANT.8

The petitioner avers that Judge Lorenzo did not delegate the determination of
probable cause to Nuguid before issuing the subject warrant. While she allowed
Nuguid to propound questions on Alexis Tan, the same consisted of only three
preliminary questions, and, as such, was inconsequential. The petitioner also
asserts that the leading questions propounded by Judge Lorenzo on Tan does
not detract from the fact that searching questions were also propounded on the
witnesses, and that based on the entirety of such propounded questions and the
latters answers, there was probable cause for the issuance of a search warrant.
The petitioner maintains that Tan had personal knowledge of the respondents
delictual acts which were in violation of Rep. Act No. 6425, as amended.
Moreover, as gleaned from the affidavits of Tan and Nuguid and their collective
testimonies before the RTC, the respondents house was sufficiently described
and identified, which description Nuguid was able to confirm through his
surveillance of the house, the place where the crime was committed.

The petitioner further contends that although there was an interregnum of six (6)
months from the time the commission of the crime came to the knowledge of Tan
up to the filing of the application of the search warrant by Nuguid, the same did
not obscure the finding of probable cause made by Judge Lorenzo.

The Court gave due course to the petition and required the parties to submit their
respective memoranda.9

After a comprehensive and well-studied review of the Rollo and the records of
the Court of Appeals, we resolve to deny the petition.

The Petition Was Filed Out of Time

The Office of the Solicitor General (OSG) admitted in the petition at bar that it
received a copy of the assailed decision of the CA on October 21, 1999. Under
Section 2, Rule 45 of the Rules of Court, the OSG had until November 5, 1999
within which to file its petition for review on certiorari. However, it did so only on
November 25, 1999, long after the period therefor had lapsed. We reject as
totally unacceptable the pretext of Solicitor Ma. Theresa Dolores C. Gomez-
Estoesta that, because of heavy pressure of work,10 the actual filing of the motion
to file the petition at bar prepared on November 3, 1999, was "accidentally
slighted." The Solicitor is mandated to insure that her motion for extension was
filed within the period therefor.11 Volume of work is a lame excuse.12She cannot
escape the adverse effects of her forgetfulness.
Even if we gloss over the gross negligence of the OSG and resolve the petition
on its merits, we find the same to be barren of merit.

A search warrant must (a) be based on probable cause; (b) contain a particular
description of the place to be searched; and (c) must describe the items or
property to be seized.13 Probable cause comprehends such facts and
circumstances as will induce a cautious man to rely upon and act in pursuance
thereof.14

It bears stressing that the requirement of particularity is related to the probable

cause requirement in that, at least, under severe circumstances, the lack of a
more specific description will make it apparent that there has not been a
sufficient showing to the Judge that the described items are to be found in a
particular place. Probable cause must first focus on a specific location. If the
applicant or official is unable to state with sufficient precision the place to be
searched and why he reasonably believes that contraband or evidence of
criminal activity will be found therein, it is highly doubtful that he possesses
probable cause for a warrant.15

In issuing a search warrant, the Judge must strictly comply with the requirements
of the Constitution and the statutory provisions.16

A search warrant shall not issue except upon probable cause to be determined
personally by the Judge after examination under oath or affirmation of the
complainant and the witnesses he may produce.17 Before issuing a search
warrant, the Judge must personally examine, in the form of searching questions
and answers, in writing and under oath, the complainant and his witnesses he
may produce, on facts personally known to them.18

The mandate of the Judge is for him to conduct a full and searching examination
of the complainant and the witnesses he may produce. In the absence of a rule
to the contrary, the determination of probable cause cannot be delegated by the
Judge, in part, or in whole, regardless of the qualifications of the person on whom
reliance is placed. It is not permissible for the Judge to share the required
determination with another.19

The searching questions propounded to the applicant and the witnesses must
depend on a large extent upon the discretion of the Judge. Although there is no
hard-and-fast rule as to how a Judge may conduct his examination, it is
axiomatic that the said examination must be probing and exhaustive and not
merely routinary, general, peripheral or perfunctory.20 He must make his own
inquiry on the intent and factual and legal justifications for a search warrant. The
questions should not merely be repetitious of the averments not stated in the
affidavits/deposition of the applicant and the witnesses.21 If the Judge fails to
determine probable cause by personally examining the applicant and his
witnesses in the form of searching questions before issuing a search warrant, it
constitutes grave abuse of discretion.22

A search warrant proceeding is independent of any criminal case. It is ex parte

and non-adversarial.23 Hence, the Judge acting on an application for a search
warrant is not bound to apply strictly the rules of evidence. As ruled in Brinegar v.
United States:24

The inappropriateness of applying the rules of evidence as a criterion to

determine probable cause is apparent in the case of an application for a
warrant before a magistrate, the context in which the issue of probable
cause most frequently arises. The ordinary rules of evidence are generally
not applied in ex parte proceedings, partly because there is no opponent to
invoke them, partly because the Judges determination is usually
discretionary, partly because it is seldom that, but mainly because the
system of evidence rules was devised for the special control of trials by
jury.

The Judge is not proscribed, at all times, from propounding leading

questions on the applicant and the witnesses he may produce. Indeed, the
Judge is allowed to propound leading questions if, for instance, the witness
is a child or is suffering from mental illness, or if the questions are
preliminary or clarificatory, or when there is difficulty in getting direct and
intelligent answers from the witness who is ignorant.

But it can hardly be justifiably claimed that, by propounding leading

questions only on the complainant and the witnesses he may produce, the
Judge thereby conducts probing and exhaustive examination. After all, a
leading question is one which suggests to the witness the answer which
the examining party desires.25By propounding leading questions, the Judge
thereby puts the words or answers in the mind of the witness to be echoed
back.26

It bears stressing that the determination of the existence of probable cause must
be made by a detached and neutral Judge.27 If he resorts to propounding leading
questions to the applicant and his witnesses to determine probable cause, the
Judge may be perceived as being partial, or even in cahoots with the officers
engaged in the often competitive enterprise of ferreting out crime.28

A search warrant is not thereby rendered invalid; nor is a finding of probable

cause proscribed merely because the Judge propounded leading questions on
the applicant and the witnesses he produces. The entirety of the questions
propounded by the court and the answers thereto must be considered and
calibrated by the Judge.
The Judge Allowed the Applicant Nuguid to Examine Tan, His Witness, and
Failed to Propound Searching Questions

The transcript of the stenographic notes taken when Nuguid and Tan testified is
quoted, in toto, infra:

COURT

Who is the applicant here?

SPO3 NUGUID:

I am the applicant, Your Honor.

(Swearing the applicant) -

COURT:

Please stand.

COURT:

Q You are applying for a search warrant.

A Yes, Your Honor.

Q Where is this place to be searched?

A At no. 2006 Oroquieta St., Sta. Cruz, Manila, Your Honor.

Q Is there any person there whom you would want to search?

A Yes, Your Honor.

Q Who?

A In the name of Cesar Reyes, Your Honor, alias "Cesar Itlog."

Q Why, what is it he is keeping in his custody?

A Undetermined quantities of suspected methamphetamine hydrochloride

also known as "Shabu."

Q How do you know that such things exist in his place?

A Thru my witness, Your Honor, we were able to test-buy and examine the
contents in a plastic sachet.

Q Why, what did your witness do, if any?

A I asked my witness to buy from Cesar Reyes alias "Cesar Itlog" and she
was able to buy the subject shabu.

Q How did you know that your witness was able to buy from Cesar Reyes
and not from other source?

A She told me and according to her she got it from Cesar Reyes.

Q Who is this witness you are referring to?

A Alexis Tan, Your Honor.

Q Where is she?

A She is the one, Your Honor. (Witness pointing to a lady who answered
when asked of her name as Alexis Tan).

COURT:

Alright, I will ask her.

(Swearing Ms. Tan)

Q Do you swear to tell the truth and nothing but the whole truth?

A Yes, I do.

Q Please state your name, age and other personal circumstances.

A ALEXIS TAN, 34 years old, married, jobless and with address c/o WBD
Drug Enforcement Section, U.N. Ave., Manila.

Q What is your occupation?

A None for the moment, Your Honor.

Q What was your occupation, if any, before?

A A plain housewife, Your Honor.

COURT:
(to SPO3 Nuguid)

You want to ask her questions on record?

SPO3 NUGUID:

Your Honor, she has her statement

COURT:

Yes, but for the record, you may ask her.

SPO3 NUGUID:

Yes, Your Honor.

Q Do you personally know one Cesar Reyes alias "Cesar Itlog?"

A Yes, Sir.

Q How long have you known Cesar Reyes?

A Maybe around 6 months ago.

Q How did you come to know him?

A I was introduced to him by a friend, Sir.

COURT:

Q What was the purpose of introducing you to him by your friend?

A It started when I was separated from my husband when my friend taught

me how to use shabu, Your Honor.

Q When you were separated from your husband, what has it something to
do with introducing you to Cesar Reyes?

A Thru influence, Your Honor.

Q What connection does it have?

A They know each other, Your Honor. My friend knows that Cesar Reyes
is selling shabu, Your Honor.

Q Did you really find out if Cesar Reyes alias "Cesar Itlog" is selling
shabu?
A Yes, Your Honor.

Q How?

A At first, I was accompanied by my friend, but later I went there on my

own alone.

Q You mean, this Cesar Reyes is really in the business if (sic) selling
shabu?

A Yes, Your Honor.

Q Knowing his prohibited ((sic) activity, does he also sell to any other
people?

A Those known to him, Maam.

Q You consider yourself as very well known to him?

A Yes, Your Honor.

Q Have you also seen him in [the] company of that friend of yours who
introduced you to him?

A Yes, Maam for many times.

Q And you have been going to this place of Cesar Reyes several times
also.

A Yes, Your Honor, I bought shabu from him.

Q How did he sell it to you?

A I will call him first through the phone before I go to him.

Q You make an appointment with him first?

A Yes, Your Honor.

Q Where is this place?

A At Oroquieta Street, Sta. Cruz, Manila, Your Honor.

Q Everytime you go and buy shabu from him, is it always ready for sale to
you?

A Yes, Your Honor.

Q You mean he has always in his custody and does not run out of stock?

A There was one time when I called him if he could sell one for me he told
me through the phone to call back after an hour because he will be getting
it from other source.

Q Did you call him back after an hour?

A Yes, Your Honor, and he told me to come over to his place.

Q How much quantity (sic) did you buy from him?

A For P3,000.00, Your Honor.

Q I am referring to the quantity.

A 3 grams, Your Honor, he does not sell lower than 3 grams, Your Honor,
it must be 3 grams and above.

Q You have not yet bought from him only one gram?

A No, Your Honor, not less than 3 grams.

Q During the time you bought shabu from Cesar Reyes, were you the only
customer?

A He entertains customer (sic) one at a time, Your Honor, but he has

several customers.

Q How do you know that he has several customers?

A Because he also talked [to] callers on the phone. During the time I
bought shabu from him, he also talked to somebody on the phone.

Q That is only. . .

Q Since when did you start buying shabu from him?

A Between December 1997 and January 1998, Your Honor.

Q The shabu you had been buying from him, do you use it or sell it to
some other person?

A No, Your Honor, I do not sell it.

Q You use it?

A Yes, Your Honor.

Q You know the house of Cesar Reyes after confirmation, in what

particular part of the house does Cesar Reyes entertain you?

A In [the] living room, Your Honor.

Q When you go to his house, you usually go and see him in that (sic) living
room and not elsewhere before he comes out from that house?

A Normally, Your Honor, when I go to his house, he would open the door
for me and would say "come in" then ask me "how much." If, for example, I
would say 3 grams, he would just go to his room and comes out with the
item.

Q In other words, everytime you go to his place to buy shabu she (sic) is
there ready to entertain you?

A Yes, Your Honor.

Q Is it not that he is still busy conversing with other people when he comes
out from his room?

A When I go to his house, he is there ready to open for me (sic) he knows I

am coming.

Q That is always the case, he is ready to open the door for you?

A There was also a time that his maid opened the door for me.

Q Aside from the maid, did you see other people inside that house?

A His family- his wife and a baby then he would usually let them stay away
from the living room or just get inside the room.

Q What kind of a house does Cesar Reyes have?

A A two-story (sic) house, Your Honor.

Q Not an apartment?

A No, Your Honor.

Q A single detach (sic) house?

A Yes, Your Honor.

Q Is there any guard on (sic) the main gate of the house?

A None, Maam, it is just an ordinary house.

Q There are no people you usually see when you go there?

A There are some members of the family but usually he let (sic) them stay
away from the living room.

Q Was there an occasion when somebody arrives when you see him?

A None, Your Honor.

Q So, this is a one-on-one affair.

A Yes, Your Honor.

Q How do you know that these things are stored in his house?

A Everytime I bought shabu from him, he would get the money from me
and then get inside his room to get a sachet of shabu and give it to me.

Q Are you sure that these things (shabu) are stocked in his house
permanently or maybe they are just brought there from somewhere
because he knows you are coming to buy and get it?

A There was once when I called him by phone and he asked me "how
much" and I told him I will buy for (sic) P4,000.00 worth of shabu and he
said "you just proceed to my place by 2 oclock in the afternoon," I will have
to get it from other source."

Q He got it from other source for you?

A According to him, if it is by large (sic) quantity and he will just repack it in

his house.

Q He himself told you?

A Yes, Your Honor, but he does not reveal from whom.

Q You have no idea?

A No, Your Honor.

Q You did not ask him?

A No, Your Honor.

Q You used to transact business on the ground floor of his house?

A Yes, Your Honor.

Q Did you notice if his house has several rooms?

A There is one room on the ground floor, Maam, but sometimes he also
goes upstairs and comes down with the shabu item. Most of the time of the
transaction just on the ground floor.

Q Is there a partition in that particular room?

A It is just a single room, Maam.

Q Did you not notice if there are other people in that room in the ground
floor?

A I did not notice but there was one time when I saw a child but he let that
child stay away from the visitor.

Q You mean this room where you saw him come out serve as storeroom of
shabu?

A Yes, Maam.

Q Did he tell you about it?

A Yes, Maam.

Q Why did he tell you?

A Because when he entertained me, he left me for the moment and I said
"where do you go" and he said "I will get inside that room to get the
shabu."

Q So, since you were requested by the police officer to purchase shabu
from Cesar Reyes, how many times?

A That was the only time, Your Honor.

COURT: (to SPO3 NUGUID)

Q Did you make surveillance in that place?

 A Yes, Your Honor, we made a surveillance after the test-buy.

Q What did you do?

A During the surveillance, we brought several witnesses.

Q Did you notice people going there to the house of Cesar Reyes?

A Yes, Your Honor.

Q And what have you observed?

A Some customers are even using cars.

Q You do not know if those people were visitors or not?

A We are not sure if those people are visitors of Cesar Reyes because we
have no contact inside his house.

COURT: (to Ms. TAN) -

Q When did you buy shabu from Cesar Reyes?

A June 13, 1998, Your Honor.

Q This Cesar Reyes at the time did not have any idea that you were there
being sent by the police officers?

A No, Your Honor.

Q Did you really go to his place and successfully bought the shabu from
Cesar Reyes?

A Yes, Your Honor.29

The questions propounded on Nuguid by Judge Lorenzo were not searching and
probing, but merely superficial and perfunctory. The records show that in his
application for a search warrant, Nuguid described the place to be searched as
the house located at "No. 2600 Oroquieta Street, Sta. Cruz, Manila," under the
name of Cesar Reyes alias "Cesar Itlog." However, the Judge ignored this
inconsistency and did not bother to inquire from Nuguid why he applied for a
search warrant of the premises at No. 2600 Oroquieta Street, Sta. Cruz, Manila,
when the house where Tan had apparently purchased shabu from the
respondent was located at No. 2006 Oroquieta Street, Sta. Cruz, Manila.
Nuguid declared that he and the police officers conducted a test-buy on June 13,
1998, using Tan as the buyer for said purpose. The ordinary procedure for a test-
buy is for the police officers to monitor and observe, at a distance, the sale of
illicit drugs by the suspect to the buyer. In this case,
when the Judge asked Nuguid how Tan was able to buy shabu from the
respondent, Nuguid reported that Tan told him that he got shabu from Cesar
Reyes, implying that he did not witness the test-buy; however, Nuguid also
declared that he was at a distance when the test-buy was conducted.

The Judge also failed to ask Nuguid the circumstances upon which he and the
other police officers came to know how Tan was able to purchase shabu from the
respondent. Inexplicably, Nuguid conducted a search of the house of the
respondent only after the test-buy and not before then. However, the Judge failed
to inquire why the application for a search warrant was made only on June 18,
1998, or after the lapse of five days from the time the test-buy was conducted on
June 13, 1998. The Judge also failed to ask Nuguid why no surveillance was
made before the test-buy and whether any report on the surveillance operations
conducted on the respondents house after the test-buy was submitted.

Even a cursory reading of the transcript will show that most of the questions
propounded on Tan by the Judge were leading questions, and that those which
were not leading were merely based on or related to the answers earlier given to
the leading questions. By asking such leading questions, the Judge thereby
supplied the answers to her questions. Although Tan testified that she used to
buy at least three (3) grams for P3,000.00 from the respondent during the period
of December 1997 to January 1998, the Judge did not even bother to inquire
from Tan, a plain housewife who was separated from her husband, how she
could afford to purchase shabu for P3,000.00 on several occasions during the
period of December 1997 to January 1998.

Indeed, there was an interregnum of more than four (4) months from the time
Tan purchased shabu from the respondent up to the time when the test-buy was
supposedly made. However, the Judge was not even curious as to why Tan
failed to purchase shabu from the respondent for such a long period of time,
considering that from her testimony, Tan made it plain that she was a regular
user of shabu. The Judge should have asked Tan why she did not buy shabu
from the respondent for more than four months.

The Judge even failed to inquire from Tan when and under what circumstances
Nuguid was able to meet with her to discuss how she would be utilized for the
test-buy. The curiosity of the Judge was not even aroused when, in answer to her
question on the location of the house of "Cesar Reyes," Tan replied that it was
located at Oroquieta Street, Sta. Cruz, Manila, without specifying the house
number. At the very least, it behooved the Judge to require Tan to specify the
house number if only to test her credibility. And yet, immediately after
propounding the questions on Tan and Nuguid, the Judge announced that she
was issuing the search warrant.

A June 13, 1998, Your Honor.

Q This Cesar Reyes at the time did not have any idea that you were there
being sent by the police officers?

A No, Your Honor.

Q Did you really go to his place and successfully bought the shabu from
Cesar Reyes?

A Yes, Your Honor.

COURT

(to SPO3 NUGUID)

Q During the time that Alexis Tan was being sent there to buy shabu from
Cesar Reyes, where were you then?

A We were at a distance, Your Honor.

COURT:

Do you have something to add questions from her?

SPO3 NUGUID:

No more at the moment, Your Honor.

COURT:

That will be all for now and the Court will issue the Search Warrant.30

The Judge allowed and even egged on Nuguid to examine Tan and elicit facts
and circumstances from her relating to the alleged purchase of shabu from the
respondent. What is so worrisome is that Nuguid, besides being the applicant,
was the same police officer who asked Tan to buy shabu from the respondent
and the one who, along with other officers, arrested the respondent. That Nuguid
propounded comparatively fewer questions on Tan is beside the point. By
allowing Nuguid himself to examine Tan, the Judge thereby compromised her
impartiality.
We echo, once again, the oft-cited caveat of the Court:

It has been said that of all the rights of a citizen, few are of greater
importance or more essential to his peace and happiness than the right of
personal security, and that involves the exemption of his private affairs,
books, and papers from inspection and scrutiny of others. While the power
to search and seize is necessary to the public welfare, still it must be
exercised and the law enforced without transgressing the constitutional
rights of the citizens, for the enforcement of no statute is of sufficient
importance to justify indifference to the basic principles of government.

Thus, in issuing a search warrant, the Judge must strictly comply with the
requirements of the Constitution and the statutory provisions. A liberal
construction should be given in favor of the individual to prevent stealthy
encroachment upon, or gradual depreciation of the rights secured by the
Constitution. No presumption of regularity is to be invoked in aid of the
process when an officer undertakes to justify it.31

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED.

G.R. No. 71410 November 25, 1986

JOSEFINO S. ROAN, petitioner,

vs.
THE HONORABLE ROMULO T. GONZALES, PRESIDING JUDGE,
REGIONAL TRIAL COURT OF MARINDUQUE, BRANCH XXXVIII; THE
PROVINCIAL FISCAL OF MARINDUQUE; THE PROVINCIAL COMMANDER,
PC-INP MARINDUQUE, respondents.

CRUZ, J:

Once again we are asked to annul a search warrant on the ground that it violates
the Constitution. As we can do no less if we are to be true to the mandate of the
fundamental law, we do annul.

One of the most precious rights of the citizen in a free society is the right to be
left alone in the privacy of his own house. That right has ancient roots, dating
back through the mists of history to the mighty English kings in their fortresses of
power. Even then, the lowly subject had his own castle where he was monarch of
all he surveyed. This was his humble cottage from which he could bar his
sovereign lord and all the forces of the Crown.

That right has endured through the ages albeit only in a few libertarian regimes.
Their number, regrettably, continues to dwindle against the onslaughts of
authoritarianism. We are among the fortunate few, able again to enjoy this right
after the ordeal of the past despotism. We must cherish and protect it all the
more now because it is like a prodigal son returning.

That right is guaranteed in the following provisions of Article IV of the 1973

Constitution:

SEC. 3. 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 not be
violated, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined by the judge, or such
other responsible officer as may be authorized by law, after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to
be searched, and the persons or things to be seized.

SEC. 4. (1) The privacy of communication and cor- respondence

shag be inviolable except upon lawful order of the court, or when
public safety and order require otherwise.
 (2) Any evidence obtained in violation of this or the preceding
section shall be inadmissible for any purpose in any proceeding.

Invoking these provisions, the petitioner claims he was the victim of an illegal
search and seizure conducted by the military authorities. The articles seized from
him are sought to be used as evidence in his prosecution for illegal possession of
firearms. He asks that their admission be temporarily restrained (which we
have) 1 and thereafter permanently enjoined.

The challenged search warrant was issued by the respondent judge on May 10,
1984. 2 The petitioner's house was searched two days later but none of the articles listed in the warrant was discovered. 3 However, the
officers conducting the search found in the premises one Colt Magnum revolver and eighteen live bullets which they confiscated. They are
4
now the bases of the charge against the petitioner.

To be valid, a search warrant must be supported by probable cause to be

determined by the judge or some other authorized officer after examining the
complainant and the witnesses he may produce. No less important, there must
be a specific description of the place to be searched and the things to be seized,
to prevent arbitrary and indiscriminate use of the warrant. 5

Probable cause was described by Justice Escolin in Burgos v. Chief of Staff 6 as

referring to "such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been
committed and that the objects sought in connection with the offense are in the place sought to be searched." As held in a long line of
7
decisions, the probable cause must refer to only one specific offense.

The inclusion of the requirement for the "examination under oath or affirmation of
the complainant and the witnesses he may produce" was a refinement proposed
by Delegate Vicente J. Francisco in the1934 Constitutional Convention. His
purpose was the strengthening of the guaranty against unreasonable searches
and seizures. Although the condition did not appear in the corresponding
provision of the federa Constitution of the United States which served as our
model it was then already embodied in the Code of Criminal Procedure.
Nevertheless, Delegate Jose P. Laurel, Chairman of the Committee on the Bill of
Rights of that body, readily accepted the proposal and it was thereafter, following
a brief debate, approved by the Convention. 8

Implementing this requirement, the Rules of Court provided in what was then
Rule 126:

SEC. 4. Examination of the applicant. The municipal or city judge

must, before issuing the warrant, personally examine on oath or
affirmation the complainant and any witnesses he may produce and
take their depositions in writing, and attach them to the record, in
addition to any affidavits presented to him.

The petitioner claims that no depositions were taken by the respondent judge in
accordance with the above rule, but this is not entirely true. As a matter of fact,
depositions were taken of the complainant's two witnesses in addition to the
affidavit executed by them. 9 It is correct to say, however, that the complainant himself was not subjected to a similar
interrogation.

Commenting on this matter, the respondent judge declared:

The truth is that when PC Capt. Mauro P. Quinosa personally filed

his application for a search warrant on May 10, 1984, he appeared
before me in the company of his two (2) witnesses, Esmael Morada
and Jesus Tohilida, both of whom likewise presented to me their
respective affidavits taken by Pat. Josue V. Lining, a police
investigator assigned to the PC-INP command at Camp Col. Maximo
Abad. As the application was not yet subscribed and sworn to, I
proceeded to examine Captain Quillosa on the contents thereof to
ascertain, among others, if he knew and understood the same.
Afterwards, he subscribed and swore to the same before me. 10

By his own account, an he did was question Captain Quillosa on the contents of
his affidavit only "to ascertain, among others, if he knew and understood the
same," and only because "the application was not yet subscribed and swom to."
The suggestion is that he would not have asked any questions at all if the
affidavit had already been completed when it was submitted to him. In any case,
he did not ask his own searching questions. He limited himself to the contents of
the affidavit. He did not take the applicant's deposition in writing and attach them
to the record, together with the affidavit presented to him.

As this Court held in Mata v. Bayona: 11

Mere affidavits of the complainant and his witnesses are thus not
sufficient. The examining Judge has to take depositions in writing of
the complainant and the witnesses he niay produce and attach them
to the record. Such written deposition is necessary in order that the
Judge may be able to properly determine the existence or non-
existence of the probable cause, to hold liable for perjury the person
giving it if it wifl be found later that his declarations are false.

We, therefore, hold that the search warrant is tainted with illegality
by the failure of the Judge to conform with the essential requisites of
taking the depositions in writing and attaching them to the record,
rendering the search warrant invalid.

The respondent judge also declared that he "saw no need to have applicant
Quillosa's deposition taken considering that he was applying for a search warrant
on the basis of the information provided by the aforenamed witnesses whose
depositions as aforementioned had already been taken by the undersigned." 12
In other words, the applicant was asking for the issuance of the search warrant
on the basis of mere hearsay and not of information personally known to him, as
required by settled jurisprudence." 13 The rationale of the requirement, of course, is to provide a ground for a
prosecution for perjury in case the applicant's declarations are found to be false. His application, standing alone, was insufficient to justify the
issuance of the warrant sought. It was therefore necessary for the witnesses themselves, by their own personal information, to establish the
14
apphcant's claims.

Even assuming then that it would have sufficed to take the depositions only of
the witnesses and not of the applicant himself, there is still the question of the
sufficiency of their depositions.

It is axiomatic that the examination must be probing and exhaustive, not merely
routinary or pro-forma, if the claimed probable cause is to be established. The
examining magistrate must not simply rehash the contents of the affidavit but
must make his own inquiry on the intent and justification of the application. 15

A study of the depositions taken from witnesses Esmael Morada and Jesus
Tohilida, who both claimed to be "intelligence informers," shows that they were in
the main a mere restatement of their allegations in their affidavits, except that
they were made in the form of answers to the questions put to them by the
respondent judge. Significantly, the meaningful remark made by Tohilida that
they were suspicious of the petitioner because he was a follower of the
opposition candidate in the forthcoming election (a "Lecarista") 16 did not excite the
respondent judge's own suspicions. This should have put him on guard as to the motivations of the witnesses and alerted him to possible
misrepresentations from them.

The respondent judge almost unquestioningly received the witnesses' statement

that they saw eight men deliver arms to the petitioner in his house on May 2,
1984. 17 This was supposedly done overtly, and Tohilida said he saw everything through an open window of the house while he was
18 19
near the gate. He could even positively say that six of the weapons were.45 caliber pistols and two were.38 caliber revolvers.

One may well wonder why it did not occur to the respondent judge to ask how the
witness could be so certain even as to the caliber of the guns, or how far he was
from the window, or whether it was on the first floor or a second floor, or why his
presence was not noticed at all, or if the acts related were really done openly, in
the full view of the witnesses, considering that these acts were against the law.
These would have been judicious questions but they were injudiciously omitted.
Instead, the declarations of the witnesses were readily accepted and the search
warrant sought was issued forthwith.

The above-discussed defects have rendered the search warrant invalid.

Nonetheless, the Solicitor General argues that whatever defect there was, was
waived when the petitioner voluntarily submitted to the search and manifested his
conformity in writing. 20

We do not agree. What we see here is pressure exerted by the military

authorities, who practically coerced the petitioner to sign the supposed waiver as
a guaranty against a possible challenge later to the validity of the search they
were conducting. Confronted with the armed presence of the military and the
presumptive authority of a judicial writ, the petitioner had no choice but to submit.
This was not, as we held in a previous case, 21 the manifestation merely of our traditional Filipino hospitality
and respect for authority. Given the repressive atmosphere of the Marcos regime, there was here, as we see it, an intimidation that the
petitioner could not resist.

The respondents also argue that the Colt Magnum pistol and the eighteen have
bullets seized from the petitioner were illegal per se and therefore could have
been taken by the military authorities even without a warrant. Possession of the
said articles, it is urged, was violative of P.D. 1866 and considered malum
prohibitum. Hence, the Wegal articles could be taken even without a warrant.

Prohibited articles may be seized but only as long as the search is valid. In this
case, it was not because: 1) there was no valid search warrant; and 2) absent
such a warrant, the right thereto was not validly waived by the petitioner. In short,
the military officers who entered the petitioner's premises had no right to be there
and therefore had no right either to seize the pistol and bullets.

It does not follow that because an offense is malum prohibitum, the subject
thereof is necessarily illegal per se. Motive is immaterial in mala prohibita, but the
subjects of this kind of offense may not be summarily seized simply because they
are prohibited. A search warrant is still necessary. If the rule were otherwise,
then the military authorities could have just entered the premises and looked for
the guns reportedly kept by the petitioner without bothering to first secure a
search warrant. The fact that they did bother to do so indicates that they
themselves recognized the necessity of such a warrant for the seizure of the
weapons the petitioner was suspected of possessing.

It is true that there are certain instances when a search may be validly made
without warrant and articles may be taken validly as a result of that search. For
example, a warrantless search may be made incidental to a lawful arrest, 22 as when
the person being arrested is frished for weapons he may otherwise be able to use against the arresting officer. Motor cars may be inspected
23 24
at borders to prevent smuggling of aliens and contraband and even in the interior upon a showing of probable cause. Vessels and
aircraft are also traditionally removed from the operation of the rule because of their mobility and their relative ease in fleeing the state's
25 26
jurisdiction. The individual may knowingly agree to be searched or waive objections to an illegal search. And it has also been held that
27
prohibited articles may be taken without warrant if they are open to eye and hand and the peace officer comes upon them inadvertently.

Clearly, though, the instant case does not come under any of the accepted
exceptions. The respondents cannot even claim that they stumbled upon the
pistol and bullets for the fact is that these things were deliberately sought and
were not in plain view when they were taken. Hence, the rule having been
violated and no exception being applicable, the conclusion is that the petitioner's
pistol and bullets were confiscated illegally and therefore are protected by the
exclusionary principle.

Stonehill v. Diokno established this rule which was later expressly affirmed in the
1973 Constitution. While conceding that there may be occasions when the
criminal might be allowed to go free because "the constable has blundered,"
Chief Justice Concepcion observed that the exclusionary rule was nonetheless
"the only practical means of enforcing the constitutional injunction" against
abuse. The decision cited Judge Learned Hand's justification that "only in case
the prosecution which itself controls the seizing officials, know that it cannot profit
by their wrong, will the wrong be repressed. "

The pistol and bullets cannot, of course, be used as evidence against the
petitioner in the criminal action against him for illegal possession of firearms.
Pending resolution of that case, however, the said articles must remain
in custodia legis.

Finally, it is true that the petitioner should have, before coming to this Court, filed
a motion for the quashal of the search warrant by the respondent judge in
accordance with the normal procedure. But as we said and did in Burgos, "this
procedural flaw notwithstanding, we take cognizance of this petition in view of the
seriousness and urgency of the constitutional issues raised. 28

WHEREFORE, Search Warrant No. 1-84 issued by the respondent judge on May
10, 1984, is hereby declared null and void and accordingly set aside. Our
restraining order of August 6,1985, is made permanent. No costs.

SO ORDERED.
G.R. No. 129651 October 20, 2000

FRANK UY and UNIFISH PACKING CORPORATION, petitioners,

vs.
BUREAU OF INTERNAL REVENUE and HON. MERCEDES GOZO-
DADOLE, respondents.

DECISION

KAPUNAN, J.:

Petitioners assail the validity of the warrants issued for the search of the
premises of the Unifish Packing Corporation, and pray for the return of the items
seized by virtue thereof.

On 30 September 1993, a certain Rodrigo Abos reported to the Bureau of

Internal Revenue (BIR) that petitioners Unifish Packing Corporation and Uy Chin
Ho alias Frank Uy were engaged in activities constituting violations of the
National Internal Revenue Code. Abos, who claimed to be a former employee of
Unifish, executed an Affidavit1 stating:

1. He has personal knowledge that UNIFISH PACKING CORPORATION

(hereinafter referred to as UNIFISH), a canning factory located at Hernan
Cortes Street, under the active management of UY CHIN HO alias Frank
Uy [,] is selling by the thousands of [sic] cartons of canned sardines
without issuing receipt. This is in violation of Sections 253 and 263 of the
Internal Revenue Code.

2. This grand scale tax fraud is perpetrated through the following scheme:

(1) Uy Chin Ho a director of UNIFISH buys in bulk from the

company;

(2) Being a director, Uy Chin Ho has a lot of clout in the distribution

of the canned sardines processed by UNIFISH;

(3) Uy Chin Ho dictates the value of canned sardines that he orders

and buys from UNIFISH without any receipt of his purchases;

(4) The moment he has the quantity he wants, UNIFISH through Uy

Chin Ho delivers to the different supermarkets such as White Gold,
Gaisano, etc.;

(5) Payments made by these tax evading establishments are made

by checks drawn payable to cash and delivered to Uy Chin Ho;
These payments are also not receipted (sic);
 (6) Uy Chin Ho will then pay UNIFISH for the quantity of sardines he
had withdrawn from the corporation;

3. Another fraudulent practice perpetrated by UNIFISH through Uy Chin

Hos direction is the sale of imported oil locally to different customers. This
is a case of smuggling in the sense that UNIFISH, being an export
company registered with the Board of Investments, is enjoying certain
exemptions in their importation of oil as one of the raw materials in its
processing of canned tuna for export. These tax exemptions are granted
by the government on the condition that the oil is to be used only in the
processing of tuna for export and that it is not to be sold unprocessed as is
to local customers.

4. Another fraudulent practice involves the sales of unused cans; UNIFISH

also enjoys tax exemptions in its purchases of tin cans subject to the
condition that these are to be used as containers for its processed tuna for
export. These cans are never intended to be sold locally to other food
processing companies.

5. Prior to 1990, that is from 1980 to 1990, the factory of the UNIFISH
PACKING CORPORATION was then run by the PREMIER INDUSTRIAL
& DEVELOPMENT CORPORATION (hereinafter referred to as PREMIER)
[,] which corporation was being controlled by the same majority
stockholders as those now running and controlling UNIFISH; [a]t that time,
PREMIER was also committing the same fraudulent acts as what is being
perpetrated by UNIFISH at present.

6. The records containing entries of actual volume of production and sales,

of both UNIFISH AND PREMIER, are found in the office of the corporation
at its factory site at H. Cortes Street, Mandaue City. The particular place or
spot where these records [official receipts, sales invoices, delivery
receipts, sales records or sales books, stock cards, accounting records
(such as ledgers, journals, cash receipts books, and check disbursements
books)] are kept and may be found is best described in the herein attached
sketch of the arrangement of the offices furniture and fixture of the
corporation which is made an integral part hereof and marked as Annex
"A",

7. He is executing this affidavit to attest under oath the veracity of the

foregoing allegations and he is reserving his right to claim for reward under
the provisions of Republic Act No. 2338.

On 1 October 1993, Nestor N. Labaria, Assistant Chief of the Special

Investigation Branch of the BIR, applied for search warrants from Branch 28 of
the Regional Trial Court of Cebu. The application sought permission to search
the premises of Unifish.
After hearing the depositions of Labaria and Abos, Judge Mercedes Gozo-
Dadole issued the disputed search warrants. The first2 is docketed as "SEARCH
WARRANT NO. 93-10-79 FOR: VIOLATION OF SECTION 253" ("Search
Warrant A-1"), and consists of two pages. A verbatim reproduction of Search
Warrant A-1 appears below:

REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT OF CEBU
7th Judicial Region
Branch 28
Mandaue City

THE PEOPLE OF THE SEARCH WARRANT NO. 93-10-79

PHILIPPINES, FOR: VIOLATION OF SEC. 253
Plaintiff,

- versus -

UY CHIN HO alias FRANK UY,

Unifish Packing Corporation
Hernan Cortes St., Cebu City

x-------------------------x

(with sketch)

SEARCH WARRANT

TO ANY PEACE OFFICER:

G R E E T I N G S:

It appearing to the satisfaction of the undersigned, after examination underoath

(sic), Nestor N. Labaria, Asst. Chief, Special Investigation Branch, BIR and
witness Rodrigo Abos that there is a (sic) probable cause to believe that the
crime of violation of Section 253 - attempt to evade or defeat the tax has been
committed and there is good and sufficient reason to believe that Uy Chin Ho c/o
Unifish Packing Corporation, Hernan Cortes St., Mandaue City has in his
possession, care and control, the following:

1. Multiple sets of Books of Accounts; Ledgers, Journals, Columnar

Books, Cash Register Books, Sales Books or Records; Provisional &
Official Receipts;

2. Production Record Books/Inventory Lists [,] Stock Cards;

 3. Unregistered Delivery Receipts;

4. Unregistered Purchase & Sales Invoices;

5. Sales Records, Job Order;

6. Corporate Financial Records; and

7. Bank Statements/Cancelled Checks

You are hereby commanded to make an immediate search at any time of day or
night of said premises and its immediate vicinity and to forthwith seize and take
possession of the articles above-mentioned and other properties relative to such
violation and bring said properties to the undersigned to be dealt with as the law
directs.

WITNESS MY HAND this 1st day of October, 1993.

(sgd.)

MERCEDES GOZO-DADOLE
Judge

The second warrant3 is similarly docketed as "SEARCH WARRANT 93-10-79

FOR: VIOLATION OF SEC. 253" ("Search Warrant A-2"). Search Warrant A-2,
reproduced below, is almost identical in content to Search Warrant A-1, save for
the portions indicated in bold print. It consisted of only one page.

REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT OF CEBU
7th Judicial Region
Branch 28
Mandaue City

THE PEOPLE OF THE SEARCH WARRANT NO. 93-10-79

PHILIPPINES,
Plaintiff, FOR: VIOLATION OF SEC. 253

- versus -

UY CHIN HO alias FRANK UY, and

Unifish Packing Corporation
Hernan Cortes St., Mandaue City

x-------------------------/
(with sketch)

SEARCH WARRANT

TO ANY PEACE OFFICER:

G R E E T I N G S:

It appearing to the satisfaction of the undersigned, after examination underoath

[sic], Nestor N. Labaria, Asst. Chief, Special Investigation Branch, BIR and
witness Rodrigo Abos that there is a [sic] probable cause to believe that the
crime of violation of Section 253 - attempt to evade or defeat the tax has been
committed and there is good and sufficient reason to believe that Uy Chin
Ho aliasFrank Uy and Unifish Packing Corporation, Hernan Cortes St.,
Mandaue City has in his possession, care and control, the following:

1. Multiple sets of Books of Accounts; Ledgers, Journals, Columnar

Books, Cash Register Books, Sales Books or Records; Provisional &
Official Receipts;

2. Production Record Books/Inventory Lists [,] Stock Cards;

3. Unregistered Delivery Receipts;

4. Unregistered Purchase & Sales Invoices;

5. Sales Records, Job Order;

6. Corporate Financial Records; and

7. Bank Statements/Cancelled Checks

You are hereby commanded to make an immediate search at any time of day or
night of said premises and its immediate vicinity and to forthwith seize and take
possession of the articles above-mentioned and other properties relative to such
violation and bring said properties to the undersigned to be dealt with as the law
directs.

WITNESS MY HAND this 1st day of October, 1993.

(sgd.)

MERCEDES GOZO-DADOLE
Judge
Judge Gozo-Dadole issued a third warrant,4 which was docketed as "SEARCH
WARRANT 93-10-80 FOR: VIOLATION OF SEC. 238 in relation to SEC. 263"
(hereinafter, "Search Warrant B"). Except for the docket number and the
designation of the crime in the body of the warrant ("Section 238 in relation to
Sec. 263 - non-issuance of sales invoice and use and possession of unregistered
delivery receipts and/or sales invoices"), Search Warrant B is a verbatim
reproduction of Search Warrant A-2.

On the strength of these warrants, agents of the BIR, accompanied by members

of the Philippine National Police, on 2 October 1993, searched the premises of
the Unifish Packing Corporation. They seized, among other things, the records
and documents of petitioner corporation. A return of said search was duly made
by Nestor Labaria with the RTC of Cebu , Branch 28.

On 8 February 1995, the BIR filed against petitioners a case before the
Department of Justice. The records, however, do not reveal the nature of this
case.

On 31 March 1995, petitioners filed motions to quash the subject search warrants
with Branch 28 of the Cebu RTC.

The RTC, however, denied petitioners' motions to quash as well as their

subsequent motion for reconsideration, prompting petitioners to file a petition
for certiorari with the Court of Appeals (CA). The CA dismissed their petition,
holding that petitioners failed to comply with Section 2(a), Rule 6 of the Revised
Internal Rules of the Court of Appeals (RIRCA), which states:

a. What Should be Filed. - The petition shall be filed in seven (7) legible copies
and a copy thereof shall be served on each of the respondents, and must be
accompanied by a certified true copy of the decision or order complained of and
true copies of the pleadings and other pertinent documents and papers. (As
amended by S.Ct. Res., dated November 24, 1992).

The CA found that petitioners did not submit certified true copies of (1) the
Motions to Quash, (2) the Motion for Reconsideration, and (3) the Affidavit of
Rodrigo Abos.

The CA also held that certiorari was not the proper remedy to question the
resolution denying the motion to quash.

In this case now before us, the available remedies to the petitioners, assuming
that the Department of Justice will eventually file the case, are: a petition for
reinvestigation; the right to post bail; a Motion to Quash the Information; and in
case of denial, an appeal, after judgment on the merits, or after the case shall
have been tried. This brings us to the case of Lai vs.
Intermediate 220 SCRA 149 and the pronouncement, thus:
Criminal Procedure: Certiorari: Certiorari should not be allowed where petitioner
has other remedies available. -- Anent the remedy resorted to by petitioners
(referring to the petition for certiorari) from the Regional Trial Court of Negros
Oriental presided by Judge Diez, the same should not have been granted.
Petitioners were not without plain, speedy and adequate remedies in the ordinary
course of law against Judge Lomeda's order for their arrest. These remedies are
as enumerated by respondent appellate court in its decision: "1. they can post
bail for their provisional release; 2. They can ask the Provincial Fiscal for a
reinvestigation of the charge against them. If unsatisfied with the fiscal's
resolution they can ask for a review by the Minister of Justice; (Sec. 1(), RA 5180
as amended by P.D. 911);
3. if their petition for review does not prosper, they can file a motion to quash thei
nformation in the trial court. (Rule 117, Rules of Court).
4. If the motion is denied, they can appeal the judgmentof the court after the case
shall have been tried on the merits.

x x x Where motion to quash is denied, remedy is not certiorari, but to go to trial.-

- Moreover, in the case of Acharon vs. Purisima, this Court held
that when a motion to quash a criminal case is denied, the remedy is notcertiorari
but to go to trial without prejudice to reiterating the special defenses involved in s
aid Motion. In the event that an adverse decision is rendered after trial on the
merits, an appeal therefrom should be the next legal step.

xxx

In this case now before Us, there is no pretention [sic] that the Court issued the
Search Warrants without jurisdiction. On the contrary, it had jurisdiction. The
argument therefore that the Court committed an error in not describing the
persons or things to be searched; that the Search Warrants did not describe with
particularity the things to be seized/taken; the absence of probable cause; and
for having allegedly condoned the discriminating manner in which the properties
were taken, to us, are merely errors in the Court's finding, certainly not correctible
by certiorari, but instead thru an appeal.5

In any event, the CA ruled, no grave abuse of discretion amounting to lack of

jurisdiction was committed by the RTC in the issuance of the warrants.

As petitioners' motion for reconsideration proved futile, petitioners filed the instant
petition for review.

Petitioners claim that they did submit to the CA certified true copies of the
pleadings and documents listed above along with their Petition, as well as in their
Motion for Reconsideration. An examination of the CA Rollo, however, reveals
that petitioners first submitted the same in their Reply, after respondents, in their
Comment, pointed out petitioners failure to attach them to the Petition.
Nevertheless, the CA should not have dismissed the petition on this ground
although, to its credit, it did touch upon the merits of the case. First, it appears
that the case could have been decided without these pleadings and documents.
Second, even if the CA deemed them essential to the resolution of the case, it
could have asked for the records from the RTC. Third, in a similar case,6 we held
that the submission of a document together with the motion for reconsideration
constitutes substantial compliance with Section 3, Rule 46 of the Rules of Court,
requiring the submission of a certified true copy of "material portions of the record
as are referred to [in the petition], and other documents relevant or pertinent
thereto" along with the petition. So should it be in this case, especially
considering that it involves an alleged violation of a constitutionally guaranteed
right. The rules of procedure are not to be applied in a very rigid, technical sense;
rules of procedure are used only to help secure substantial justice. If a technical
and rigid enforcement of the rules is made, their aim could be defeated.7

The CA likewise erred in holding that petitioners cannot avail of certiorari to

question the resolution denying their motions to quash the subject search
warrants. We note that the case of "Lai vs. Intermediate," cited by the appellate
court as authority for its ruling does not appear in "220 SCRA 149." The excerpt
of the syllabus quoted by the court, as observed by petitioners,8 appears to have
been taken from the case of Yap vs. Intermediate Appellate Court, 220
SCRA 245 (1993). Yap, however, is inapplicable since that case involved a
motion to quash a complaint for qualified theft, not a motion to quash a search
warrant.

The applicable case is Marcelo vs. De Guzman,9 where we held that the issuing
judges disregard of the requirements for the issuance of a search warrant
constitutes grave abuse of discretion, which may be remedied by certiorari:

Expressly announced in Section 1, Rule 65 of the Rules of Court is the general

rule that certiorari is available where a tribunal or officer exercising judicial
functions "has acted without or in excess of its or his jurisdiction, or with grave
abuse of discretion and there is no appeal, nor any plain, speedy, and adequate
remedy in the ordinary course of law."

In the light of the findings of the lower court, herein above quoted, it is
indisputable that Judge de Guzman gravely abused his discretion in issuing the
said search warrant. Indeed, he acted whimsically and capriciously when he
ignored the explicit mandate of Section 3, Rule 126 of the Rules of Court that "a
search warrant shall not issue but upon probable cause in connection with one
specific offense to be determined by the municipal or city judge after examination
under oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the persons or things to
be seized; and that "no search warrant shall issue for more than one specific
offense."
The utter disregard by Judge de Guzman of the requirements laid down by the
said rule renders the warrant in question absolutely null and void. It has been
held that where the order complained of is a patent nullity, a petition for certiorari
and mandamus may properly be entertained despite the existence of the remedy
of appeal.

Moreover, an appeal from the order of Judge de Guzman would neither be an

adequate nor speedy remedy to relieve appellee of the injurious effects of the
warrant. The seizure of her personal property had resulted in the total
paralization of the articles and documents which had been improperly seized.
Where the remedy of appeal cannot afford an adequate and expeditious relief,
certiorari can be allowed as a mode of redress to prevent irreparable damage
and injury to a party.

This Court had occasion to reiterate the above pronouncement in Silva vs.
Presiding Judge, RTC of Negros Oriental, Br. XXXIII,10 which also involved a
special civil action for certiorari:11

Thus, in issuing a search warrant, the judge must strictly comply with the
constitutional requirement that he must determine the existence of probable
cause by examining the applicant and his witnesses in the form of searching
questions and answers. His failure to comply with this requirement constitutes
grave abuse of discretion. As declared in Marcelo vs. De Guzman, G.R. No. L-
29077, June 29, 1982, 114 SCRA 657, "the capricious disregard by the judge in
not complying with the requirements before issuance of search warrants
constitutes grave abuse of discretion".

In this case, petitioners alleged in their petition before the CA that the issuing
judge violated the pertinent provisions of the Constitution and the Rules of Court
in issuing the disputed search warrants, which, if true, would have constituted
grave abuse of discretion. Petitioners also alleged that the enforcers of the
warrants seized almost all the records and documents of the corporation thus
resulting in the paralysis of its business. Appeal, therefore, would not be an
adequate remedy that would afford petitioners expeditious relief.

We now proceed to the merits of the case.

Section 2, Article III of the Constitution guarantees the right of the people against
unreasonable searches and seizures:

The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the
persons or things to be seized.

In relation to the above provision, Rule 126 of the Rules of Court provides:

SEC. 3. Requisite for issuing search warrant. - A search warrant shall not issue
but upon probable cause in connection with one specific offense to be
determined personally by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce, and particularly describing
the place to be searched and the things to be seized.

SEC. 4. Examination of complainant; record. - The judge must, before issuing the
warrant, personally examine in the form of searching questions and answers, in
writing and under oath the complainant and any witnesses he may produce on
facts personally known to them and attach to the record their sworn statements
together with any affidavits submitted.

A search warrant must conform strictly to the requirements of the foregoing

constitutional and statutory provisions. These requirements, in outline form, are:

(1) the warrant must be issued upon probable cause;

(2) the probable cause must be determined by the judge himself and not
by the applicant or any other person;

(3) in the determination of probable cause, the judge must examine, under
oath or affirmation, the complainant and such witnesses as the latter may
produce; and

(4) the warrant issued must particularly describe the place to be searched
and persons or things to be seized.12

The absence of any of these requisites will cause the downright nullification of
the search warrants.13 The proceedings upon search warrants must be absolutely
legal, "for there is not a description of process known to the law, the execution of
which is more distressing to the citizen. Perhaps there is none which excites
such intense feeling in consequence of its humiliating and degrading effect." The
warrants will always be construed strictly without, however, going the full length
of requiring technical accuracy. No presumptions of regularity are to be invoked
in aid of the process when an officer undertakes to justify under it.14

Petitioners contend that there are several defects in the subject warrants that
command their nullification. They point out inconsistencies in the description of
the place to be searched in Search Warrant A-1, as well as inconsistencies in the
names of the persons against whom Search Warrants A-1 and A-2 were issued.
That two search warrants (Search Warrants A-1 and A-2) were issued for the
same crime, for the same place, at a single occasion is cited as another
irregularity. Petitioners also dispute the existence of probable cause that would
justify the issuance of the warrants. Finally, they claim that the things to be
seized were not described with particularity. These defects, according to
petitioners, render the objects seized inadmissible in evidence.15

Inconsistencies in the description of the place to be searched

Petitioners observe that the caption of Search Warrant A-1 indicates the address
of Uy Chin Ho alias Frank Uy as "Hernan Cortes St., Cebu City" while the body
of the same warrant states the address as "Hernan Cortes St., Mandaue City."
Parenthetically, Search Warrants A-2 and B consistently state the address of
petitioner as "Hernan Cortes St., Mandaue City."

The Constitution requires, for the validity of a search warrant, that there be a
particular description of "the place to be searched and the persons of things to be
seized."16 The rule is that a description of a place to be searched is sufficient if
the officer with the warrant can, with reasonable effort, ascertain and identify the
place intended17 and distinguish it from other places in the community.18 Any
designation or description known to the locality that points out the place to the
exclusion of all others, and on inquiry leads the officers unerringly to it, satisfies
the constitutional requirement.19 Thus, in Castro vs. Pabalan,20 where the search
warrant mistakenly identified the residence of the petitioners therein as
Barrio Padasil instead of the adjoining Barrio Maria Cristina, this Court
"admitted that the deficiency in the writ is not of sufficient gravity to call for its
invalidation."

In this case, it was not shown that a street similarly named Hernan Cortes could
be found in Cebu City. Nor was it established that the enforcing officers had any
difficulty in locating the premises of petitioner corporation. That Search Warrant
A-1, therefore, inconsistently identified the city where the premises to be
searched is not a defect that would spell the warrants invalidation in this case.

Inconsistencies in the description of the persons named in the two warrants

Petitioners also find fault in the description of the names of the persons in Search
Warrants A-1 and A-2. Search Warrant A-1 was issued solely against "Uy Chin
Ho alias Frank Uy." Search Warrant A-2, on the other hand, was directed against
"UY CHIN HO alias FRANK UY, and Unifish Packing Corporation."

These discrepancies are hardly relevant.

In Miller v. Sigler,21 it was held that the Fourth Amendment of the United States
Constitution, from which Section 2, Article III of our own Constitution is
historically derived, does not require the warrant to name the person who
occupies the described premises. Where the search warrant is issued for the
search of specifically described premises only and not for the search of a person,
the failure to name the owner or occupant of such property in the affidavit and
search warrant does not invalidate the warrant; and where the name of the owner
of the premises sought to be searched is incorrectly inserted in the search
warrant, it is not a fatal defect if the legal description of the premises to be
searched is otherwise correct so that no discretion is left to the officer making the
search as to the place to be searched.22

Since, in the case at bar, the warrant was issued not for search of the persons
owning or occupying the premises, but only a search of the premises occupied
by them, the search could not be declared unlawful or in violation of the
constitutional rights of the owner or occupants of the premises, because of
inconsistencies in stating their names.23

Two warrants issued at one time for one crime and one place

In any event, Search Warrant A-1 should be deemed superseded by Search

Warrant A-2.

Two warrants, Search Warrants A-1 and A-2, were actually issued by the trial
court for the same crime (violation of "SEC. 253" of the National Internal
Revenue Code). It appears, however, that Search Warrant A-2 was issued
merely to correct the inconsistencies in the address in Search Warrant A-1, as
well as to include Unifish Packing Corporation as a party against whom the
warrant was issued. Search Warrant A-2 was evidently an attempt by the issuing
judge to be more precise in the names of the persons against whom the warrant
was issued and in the description of the place to be searched. Indeed, it would
be absurd for the judge to issue on a single occasion two warrants authorizing
the search of a single place for a single offense. Inasmuch as the apparent intent
in issuing Search Warrant A-2 was to supersede Search Warrant A-1, the latter
should be deemed revoked by the former.

The alleged absence of probable cause

Petitioners claim there was no probable cause for Judge Gozo-Dadole to issue
the subject search warrants.

Probable cause is defined as such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense has been
committed and that the objects sought in connection with the offense are in the
place sought to be searched.24

In the determination of probable cause, the Constitution and the Rules of Court
require an examination of the witnesses under oath. The examination must be
probing and exhaustive, not merely routine or pro forma. The examining
magistrate must not simply rehash the contents of the affidavit but must make his
own inquiry on the intent and justification of the application.25 Asking of leading
questions to the deponent in an application for search warrant, and conducting of
examination in a general manner, would not satisfy the requirements for issuance
of a valid search warrant.26

The witnesses, in turn, must testify under oath to facts of their own personal
knowledge. The oath required must refer to the truth of the facts within the
personal knowledge of the petitioner or his witnesses, because the purpose
thereof is to convince the committing magistrate, not the individual making the
affidavit and seeking the issuance of the warrant, of the existence of probable
cause.27 Search warrants are not issued on loose, vague or doubtful basis of fact,
nor on mere suspicion or belief.28

It may be recalled that before issuing the warrants, the judge deposed two
witnesses, namely, Nestor Labaria of the BIR, and Rodrigo Abos, who claimed to
be an old employee of Unifish. Petitioners claim that the testimonies of Labaria
and Abos are hearsay. We agree with this contention, but only as to the
testimony of Labaria, who stated during the examination:

Q. Do you know of a certain Uy Chin Ho alias Frank Uy?

A. No.

Q. Do you know his establishment known as Unifish Packing Corporation?

A. I have only heard of that thru the affidavit of our informer, Mr. Abos.

Q. Why are you applying for search warrant in the premises of Unifish Packing
Corporation?

A. Because of that information we received that they are using only delivery
receipts instead of the legal sales invoices. It is highly indicative of fraud.

Q. From where did you get that information?

A. From our informer, the former employee of that establishment.29

The above portion of the transcript shows that Labarias knowledge of the alleged
illegal activities of petitioners was acquired not through his own perception but
was merely supplied by Abos. Therefore, the deposition of Labaria, which is
based on hearsay, standing alone, cannot justify the issuance of the search
warrants.30

The application for the warrants, however, is not based solely on Labarias
deposition but is supported by that of Abos, whose knowledge of petitioners
alleged illegal practices was apparently obtained during his employment with
Unifish. In his deposition, Abos detailed the schemes employed by Frank Uy and
Unifish to evade the payment of taxes, and described the place where the
documents supposedly evidencing these schemes were located:

Q Do you know Frank Uy?

A Yes.

Q Why do you know him?

A Because I were (sic) an employee of his from 1980 until August of 1993.

Q Where is this Unifish Packing Corporation located?

A Hernan Cortes St.

Q What is it being engaged of?

A It is engaged in canning of fish.

Q You have executed an affidavit here to the effect that it seems that in his
business dealings that he is actually doing something that perpetrated tax
evasion. Is that correct?

A Yes.

Q How is it done?

A As an officer, he is an active member of the corporation who is at the same

time making his authority as appointing himself as the distributor of the
company's products. He sells these products thru supermarkets in Visayas and
Mindanao, in fact, the whole Philippines. He makes it appear that it is the
company which is selling when actually it is him selling the goods and he does
not issue any invoices.

Q Since he does not issue any invoices, how is it done?

A Thru delivery receipts.

Q Is the delivery receipt official?

A No. It is unregistered.

Q For how long has this been going on?

A As far as I know, it is still in 1986 since we started producing the sardines.

Q When was the last time that you observed that that is what he is doing?

A August, 1993, last month.

Q How did you happen to know about this last month?

A Because he delivered to certain supermarkets and the payments of that

supermarket did not go directly to the company. It went to him and he is the one
who paid the company for the goods that he sold.

Q Can you tell this Court the name of that certain supermarkets?

A White Gold and Gaisano.

Q How did you know this fact?

A As a manager of the company I have access to all the records of that company
for the last three years. I was the Operating Chief.

Q Until now?

A No. I was separated already.

Q When?

A August, 1993.

Q How does he do this manipulation?

A He sells the goods to the supermarkets afterwhich the company, Unifish will
deliver to his customers, then his customers will pay directly to him and in turn,
he pays to the company.

Q And these transactions, were they reflected in their books of account or ledger
or whatever?

A It is written but it is supposed to be a secret transaction. It is not for the public,

1w phi 1

not for the BIR but it is only for the purpose of keeping the transactions between
the company and him. It is not made to be shown to the BIR.

Q In that books of account, is it reflected that they have made some deliveries to
certain supermarkets?

A Yes.

Q For the consumption of the BIR what are the papers that they show?
A It is the private accounting firm that prepares everything.

Q Based on what?

A Based on some fictitious records just as they wish to declare.

Q In your affidavit you stated that there are sales invoices, official receipts,
delivery receipts, sales records, etc. These documents are records that you have
stated, in your affidavit, which are only for the consumption of the company?

A Yes, not for the BIR.

Q Where are they kept now?

A They are kept on the table which I have drawn in the sketch. This is the bird's
eyeview (sic) of the whole office. When you enter thru the door this Gina Tan is
the one recording all the confidential transactions of the company. In this table
you can find all the ledgers and notebooks.

Q This sketch is a blow-up of this portion, Exh. "A"?

A Yes. Exh. "B" is the blow-up of Exh. "A" inside the office.

In this blow-up there are four personnel plus one new personnel. Gina Tan
collects all the records from this girl and this girl makes the statements. This first
girl delivers the receipts. The second girl prepares the bill of lading. The third girl
keeps the inventory of all the stocks.

This sketch here is the bodega where the records are kept. The records from
these people are stored in this place which is marked as "C".

Q So what you want to impress on that now is that only current records are kept
by Gina because according to you the whole records are already placed in the
bodega?

A Yes.

Q But how can you enter the bodega?

A Here, from the main entrance there is a door which will lead to this part here. If
you go straight there is a bodega there and there is also a guard from this exit
right after opening the door.

Q The problem is that, when actually in August have you seen the current
records kept by Gina?
A I cannot exactly recall but I have the xerox copies of the records.

Q Where are they now?

A They are in my possession (witness handling [sic] to the Court a bunch of

records).

Q The transactions that are reflected in these xerox copies that you have given
me, especially this one which seems to be pages of a ledger, they show that
these are for the months of January, February, March, April and May. Are these
transactions reflected in these xerox copies which appear in the ledger being
shown to the BIR?

A As far as I know, it did not appear.

Q What about this one which says Columnar Book Cash Receipt for the month of
January, what does it show?

A It shows that Frank Uy is the one purchasing from the company and these are
his customers.

Q Do these entries appear in the columnar books which are the basis for the
report to the BIR?

A As far as I know, it does not reflect.

Q What are these xerox copies of checks?

A I think we cannot trace it up. These ones are the memos received by Unifish
for payment of sardines. This is the statement of the company given to Uy Chin
Ho for collection.

Q It is also stated in your affidavit that the company imported soya oil. How is it
done?

A The company imports soya oil to be used as a component in the processing of

canned tuna for export. The company enjoys certain BOI privilege and so it is tax
free. As far as I know, they profit more to dispose the product locally. Whatever
excess of this soya oil are sold to another company.

Q Is that fact reflected in the xerox copies?

A No. I have the actual delivery receipt.

Q In other words, the company imports soya oil supposedly to be used as a raw
material but instead they are selling it locally?
A Yes. ([W]itness showing DR No. 3053 dated November 13, 1991.) This
delivery receipt was the delivery receipt to Celebes Canning Corp. of the 90
grams soya oil.

Q In other words, this soya oil should have to be used by Unifish but instead they
are seeling (sic) it?

A Yes, at a profit.

Q You also said that there is tax evasion in the selling of cans. What do you
mean by this?

A There is another privileged [sic] by the BOI for a special price given to
packaging materials. When you export the product there is a 50% price
difference. Now, taking that advantage of that exemption, they sold it to certain
company here, again to Virginia Farms.

Q Do you have proof to that effect?

A No, but we can get it there.

Q Will that fact be shown in any listed articles in the application for search
warrant since according to you, you have seen this manipulation reflected on the
books of account kept by Gina? Are you sure that these documents are still
there?

A Yes. I have received information.

COURT: Alright.31

Abos stated that, as former Operating Chief of Unifish, he had access to the
company records, and even showed the issuing judge photocopies thereof. Thus,
we reject the contention that this witness did not have personal knowledge of the
facts to which he testified. The contents of the deposition clearly demonstrate
otherwise.

The deposition also shows that, contrary to petitioners submission, the inquiries
made by the judge were far from leading or being a rehash of the witness
affidavit. We find such inquiries to be sufficiently probing.

Alleged lack of particularity in the description of the things seized

Petitioners note the similarities in the description of the things to be seized in the
subject warrants and those in Stonehill vs. Diokno,32 Bache & Co. (Phil.), Inc. vs.
Ruiz,33 and Asian Surety & Insurance Co., Inc. vs. Herrera.34
In Stonehill, the effects to be searched and seized were described as:

"Books of accounts, financial records, vouchers, journals correspondence,

receipts, ledgers, portfolios, credit journals, typewriters, and other documents
and/or papers showing all business transactions including disbursement receipts,
balance sheets and related profit and loss statements."

This Court found that the foregoing description failed to conform to the
requirements set forth by the Constitution since:

x x x the warrants authorized the search for and seizure of records pertaining
to all business transactions of petitioners herein, regardless of whether the
transactions were legal or illegal. The warrants sanctioned the seizure
of all records of the petitioners and the aforementioned corporations, whatever
their nature, thus openly contravening the explicit command of our Bill of Rights -
that the things to be seized be particularly described - as well as tending to
defeat its major object: the elimination of general warrants.

In Bache & Co., this Court struck down a warrant containing a similar description
as those in Stonehill:

The documents, papers, and effects sought to be seized are described in Search
Warrant No. 2-M-70 in this manner:

"Unregistered and private books of accounts (ledgers, journals, columnars,

receipts and disbursements books, customers' ledgers); receipts for payments
received; certificates of stocks and securities; contracts, promissory notes and
deeds of sale; telex and coded messages; business communications; accounting
and business records; checks and check stubs; records of bank deposits and
withdrawals; and records of foreign remittances, covering the years 1966 to
1970."

The description does not meet the requirement in Art. III, Sec. 1, of the
Constitution, and of Sec. 3, Rule 126 of the Revised Rules of Court, that the
warrant should particularly describe the things to be seized.

xxx

In Uy Kheytin, et al. vs. Villareal, etc., et al., 42 Phil. 886, 896, this Court had
occasion to explain the purpose of the requirement that the warrant should
particularly describe the place to be searched and the things to be seized, to wit:

"x x x Both the Jones Law (sec. 3) and General Orders No. 68 (sec. 97)
specifically require that a search warrant should particularly describe the place to
be searched and the things to be seized. The evident purpose and intent of this
requirement is to limit the things to be seized to those, and only those,
particularly described in the search warrant - to leave the officers of the law with
no discretion regarding what articles they shall seize, to the end that
unreasonable searches and seizures may not be made, - that abuses may not
be committed. That is the correct interpretation of this constitutional provision
borne out by the American authorities."

The purpose as thus explained could, surely and effectively, be defeated under
the search warrant issued in this case.

A search warrant may be said to particularly describe the things to be seized

when the description therein is as specific as the circumstances will ordinarily
allow (People vs. Rubio, 57 Phil, 384); or when the description expresses a
conclusion of fact - not of law - by which the warrant officer may be guided in
making the search and seizure (idem., dissent of Abad Santos, J.,); or when the
things described are limited to those which bear direct relation to the offense for
which the warrant is being issued (Sec. 2, Rule 126, Revised Rules of Court).
The herein search warrant does not conform to any of the foregoing tests. If the
articles desired to be seized have any direct relation to an offense committed, the
applicant must necessarily have some evidence, other than those articles, to
prove the said offense; and the articles subject of search and seizure should
come in handy merely to strengthen such evidence. In this event, the description
contained in the herein disputed warrant should have mentioned, at least, the
dates, amounts, persons, and other pertinent data regarding the receipts of
payments, certificates of stocks and securities, contracts, promissory notes,
deeds of sale, messages and communications, checks, bank deposits and
withdrawals, records of foreign remittances, among others, enumerated in the
warrant.

In Asian Surety & Insurance Co., Inc. vs. Herrera, the description of the things to
be seized, i.e., "Fire Registers, Loss, Bordereau, Adjusters' Report, including
subrogation receipts and proof of loss, Loss Registers, Book of Accounts
including cash receipts and disbursements and general ledger, etc." was held to
be "an omnibus description" and, therefore, invalid:

x x x Because of this all embracing description which includes all conceivable

records of petitioner corporation, which if seized x x x, could paralyze its
business, petitioner in several motions filed for early resolution of this case,
manifested that the seizure of TWO carloads of their papers has paralyzed their
business to the grave prejudice of not only the company, its workers, agents,
employees but also of its numerous insured and beneficiaries of bonds issued by
it, including the government itself, and of the general public. And correlating the
same to the charges for which the warrant was issued, We have before Us the
infamous general warrants of old.

In the case at bar, the things to be seized were described in the following
manner:
 1. Multiple sets of Books of Accounts; Ledgers, Journals, Columnar Books,
Cash Register Books, Sales Books or Records; Provisional & Official
Receipts;

2. Production Record Books/Inventory Lists [,] Stock Cards;

3. Unregistered Delivery Receipts;

4. Unregistered Purchase & Sales Invoices;

5. Sales Records, Job Order;

6. Corporate Financial Records; and

7. Bank Statements/Cancelled Checks

We agree that most of the items listed in the warrants fail to meet the test of
particularity, especially since witness Abos had furnished the judge photocopies
of the documents sought to be seized. The issuing judge could have formed a
more specific description of these documents from said photocopies instead of
merely employing a generic description thereof. The use of a generic term or a
general description in a warrant is acceptable only when a more specific
description of the things to be seized is unavailable. The failure to employ the
specificity available will invalidate a general description in a warrant. 35 The use by
the issuing judge of the terms "multiple sets of books of accounts, ledgers,
journals, columnar books, cash register books, sales books or records,
provisional & official receipts," "production record books/inventory lists, stock
cards," "sales records, job order," "corporate financial records," and "bank
statements/cancelled checks" is therefore unacceptable considering the
circumstances of this case.

As regards the terms "unregistered delivery receipts" and "unregistered purchase

& sales invoices," however, we hold otherwise. The Solicitor General correctly
argues that the serial markings of these documents need not be specified as it is
not possible to do so precisely because they are unregistered.36 Where, by the
nature of the goods to be seized, their description must be rather general, it is not
required that a technical description be given, as this would mean that no warrant
could issue. Taking into consideration the nature of the articles so described, it is
clear that no other more adequate and detailed description could have been
given, particularly because it is difficult to give a particular description of the
contents thereof.37 Although it appears that photocopies of these unregistered
documents were among those handed by Abos to the issuing judge, it would be
impractical to require the latter to specify each and every receipt and invoice, and
the contents thereof, to the minutest detail.
The general description of most of the documents listed in the warrants does not
render the entire warrant void. Insofar as the warrants authorize the search and
seizure of unregistered delivery receipts and unregistered purchase and sales
invoices, the warrants remain valid. The search warrant is severable, and those
items not particularly described may be cut off without destroying the whole
warrant. In United States v. Cook,38 the United States Court of Appeals (Fifth
Circuit) made the following pronouncement:

x x x. The leading decision is Aday v. Superior Court, 53 Cal.2d 789, 362 P.2d
47, 13 Cal.Rptr. 415 (1961). In Aday, a warrant was issued authorizing the
seizure of two particularly described books and myriad other generally described
items. On appeal, the California Supreme Court held that only the books were
particularly described in the warrant and lawfully seized. The court acknowledged
that the warrant was flawed, but rather than suppress everything seized, the
court chose to sever the defective portions of the warrant and suppress only
those items that were not particularly described.

Although the warrant was defective x x x it does not follow that it was invalid as a
whole. Such a conclusion would mean that the seizure of certain articles, even
though proper if viewed separately, must be condemned merely because the
warrant was defective with respect to other articles. The invalid portions of the
warrant are severable from the authorization relating to the named books x x x.
The search for and seizure of these books, if otherwise valid, were not rendered
illegal by the defects concerning other articles.

xxx

x x x We agree with the reasoning of the Supreme Court of California and the
majority of state courts that have considered this question and hold that in the
usual case the district judge should sever the infirm portion of the search warrant
as passes constitutional muster. See United States v. Giresi, 488 F.Supp. 445,
459-60 (D.N.J.1980). Items that were not described with the requisite particularity
in the warrant should be suppressed, but suppression of all of the fruits of the
search is hardly consistent with the purposes underlying exclusion. Suppression
of only the items improperly described prohibits the Government from profiting
from its own wrong and removes the court from considering illegally obtained
evidence. Moreover, suppression of only those items that were not particularly
described serves as an effective deterrent to those in the Government who would
be tempted to secure a warrant without the necessary description. As the leading
commentator has observed, "it would be harsh medicine indeed if a warrant
which was issued on probable cause and which did particularly describe certain
items were to be invalidated in toto merely because the affiant and the magistrate
erred in seeking and permitting a search for other items as well." 2 W. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment 4.6(f) (1978).
Accordingly, the items not particularly described in the warrants ought to be
returned to petitioners.

Petitioners allege that the following articles, though not listed in the warrants,
were also taken by the enforcing officers:

1. One (1) composition notebook containing Chinese characters,

2. Two (2) pages writing with Chinese characters,

3. Two (2) pages Chinese character writing,

4. Two (2) packs of chemicals,

5. One (1) bound gate pass,

6. Surety Agreement.39

In addition, the searching party also seized items belonging to the Premier
Industrial and Development Corporation (PIDC), which shares an office with
petitioner Unifish.

The things belonging to petitioner not specifically mentioned in the warrants, like
those not particularly described, must be ordered returned to petitioners. In order
to comply with the constitutional provisions regulating the issuance of search
warrants, the property to be seized under a warrant must be particularly
described therein and no other property can be taken thereunder.40 In Tambasen
vs. People,41 it was held:

Moreover, by their seizure of articles not described in the search warrant, the
police acted beyond the parameters of their authority under the search warrant.
Section 2, Article III of the 1987 Constitution requires that a search warrant
should particularly describe the things to be seized. "The evident purpose and
intent of the requirement is to limit the things to be seized to those, and only
those, particularly described in the search warrant, to leave the officers of the law
with no discretion regarding what articles they should seize, to the end that
unreasonable searches and seizures may not be made and that abuses may not
be committed" (Corro v. Lising, 137 SCRA 541, 547 [1985]); Bache & Co. [Phil.],
Inc. v. Ruiz, 37 SCRA 823 [1971]; Uy Kheytin v. Villareal, 42 Phil. 886 [1920]).
The same constitutional provision is also aimed at preventing violations of
security in person and property and unlawful invasions of the sanctity of the
home, and giving remedy against such usurpations when attempted (People v.
Damaso, 212 SCRA 547 [1992] citing Alvero v. Dizon, 76 Phil. 637, 646 [1946]).

Clearly then, the money which was not indicated in the search warrant, had been
illegally seized from petitioner. The fact that the members of the police team were
doing their task of pursuing subversives is not a valid excuse for the illegal
seizure. The presumption juris tantum of regularity in the performance of official
duty cannot by itself prevail against the constitutionally protected right of an
individual (People v. Cruz, 231 SCRA 759 [1994]; People v. Veloso, 48 Phil. 169,
176 [1925]). Although public welfare is the foundation of the power to search and
seize, such power must be exercised and the law enforced without transgressing
the constitutional rights of the citizens (People v. Damaso, supra, citing
Rodriguez v. Evangelista, 65 Phil. 230, 235 [1937]). As the Court aptly puts it
in Bagahilog v. Fernandez, 198 SCRA 614 (1991), "[z]eal in the pursuit of
criminals cannot ennoble the use of arbitrary methods that the Constitution itself
abhors."

The seizure of the items not specified in the warrants cannot be justified by the
directive in the penultimate paragraph thereof to "seize and take possession of
other properties relative to such violation," which in no way can be characterized
as a particular description of the things to be seized.

As regards the articles supposedly belonging to PIDC, we cannot order their

return in the present proceedings. The legality of a seizure can be contested only
by the party whose rights have been impaired thereby, and the objection to an
unlawful search and seizure is purely personal and cannot be availed of by third
parties.42

WHEREFORE, the Resolutions of respondent Court of Appeals dated 27 June

1996 and 14 May 1987, affirming the Order of the Regional Trial Court dated 17
July 1995, are hereby AFFIRMED insofar as said Resolutions upheld the validity
of the subject Search Warrants authorizing the seizure of the unregistered
delivery receipts and unregistered purchase and sales invoices, but REVERSED
with respect to the rest of the articles subject of said warrants. The respondent
Bureau of Internal Revenue is hereby ordered to return to petitioners all items
seized from the subject premises and belonging to petitioners, except the
unregistered delivery receipts and unregistered purchase and sales invoices.

SO ORDERED.
 ERLE PENDON, for himself and as Managing Partner of KENER TRADING
COMPANY, Petitioner, v. THE COURT OF APPEALS, HON. ENRIQUE T. JOCSON in
his capacity as Presiding Judge of Branch 47, Regional Trial Court of Negros
Occidental, FISCAL ALEXANDER N. MIRANO, in his capacity as City Fiscal of
Bacolod City and THE PROVINCIAL COMMANDER OF THE 331st PC COMPANY,
BACOLOD CITY, Respondents.

Ledesma, Guinez, Causing, Espino & Serfino Law Office for Petitioner.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH WARRANT; PROBABLE CAUSE;

DEFINITION AND REQUISITES THEREOF. The right against unreasonable searches
and seizures is guaranteed under Article III (Bill of Rights), Section 2 of the 1987
Constitution of the Philippines. Under this provision, the issuance of a search warrant is
justified only upon a finding of probable cause. Probable cause for a search has been
defined as such facts and circumstances which would lead a reasonably discreet and
prudent man to believe that an offense has been committed and that the objects
sought in connection with the offense are in the place sought to be searched (Burgos,
Sr. v. Chief of Staff, G.R. No. 64261, Dec. 26, 1984, 133 SCRA 800). In determining
the existence of probable cause, it is required that: 1) the judge (or) officer must
examine the . . witnesses personally; 2) the examination must be under oath; and (3)
the examination must be reduced to writing in the form of searching questions and
answers (Marinas v. Sioco, 104 SCRA 403, Ponsica v. Ignalaga, G.R. No. 72301, July
31, 1987, 152 SCRA 647). These requirements are provided under Section 4, Rule 126
of the New Rules of Criminal Procedure.

2. ID.; ID.; ID.; ID.; FINDING OR OPINION THEREOF BY THE EXAMINING JUDGE,
MUST BE SUPPORTED BY THE RECORD; NOT OBSERVED IN THE CASE AT BAR. It has
been ruled that the existence of probable cause depends to a large degree upon the
finding or opinion of the judge conducting the examination (Luna v. Plaza, G.R. No. L-
27511, Nov. 29, 1968), however, the opinion or finding of probable cause must, to a
certain degree, be substantiated or supported by the record. In this case, We find that
the requirement mandated by the law and the rules that the judge must personally
examine the applicant and his witnesses in the form of searching questions and
answers before issuing the warrant, was not sufficiently complied with. The applicant
himself was not asked any searching question by Judge Magallanes. The records
disclose that the only part played by the applicant, Lieutenant Rojas was to subscribe
the application before Judge Magallanes. The application contained pre-typed questions,
none of which stated that applicant had personal knowledge of a robbery or a theft and
that the proceeds thereof are in the possession and control of the person against whom
the search warrant was sought to be issued. In the case of Roan v. Gonzales, G.R.
No. 71410, Nov. 25, 1986, 145 SCRA 687, citing the case of Mata v. Bayona, G.R.
No. 50720, March 26, 1984, 128 SCRA 388, where the applicant himself was not
subjected to an interrogation but was questioned only "to ascertain, among others, if he
knew and understood (his affidavit) and only because the application was not yet
subscribed and sworn to," We held that: "It is axiomatic that the examination must be
probing and exhaustive, not merely routinary or pro forma, if the claimed probable
cause is to be established. The examining magistrate must not simply rehash the
contents of the affidavit but must make his own inquiry on the intent and justification of
the application."
cralaw virtua1aw li bra ry
3. ID.; ID.; ID.; ARTICLES SOUGHT TO BE SEIZED, MUST BE DESCRIBED WITH
PARTICULARITY. Another infirmity of Search Warrant No. 181 is its generality. The
law requires that the articles sought to be seized must be described with particularity.
The items listed in the warrant, to wit: "NAPOCOR Galvanized bolts, grounding motor
drive assembly, aluminum wires and other NAPOCOR Towers parts and line accessories"
are so general that the searching team can practically take half of the business of Kener
Trading, the premises searched. Kener Trading, as alleged in petitioners petition before
respondent Court of Appeals and which has not been denied by respondent, is engaged
in the business of buying and selling scrap metals, second hand spare parts and
accessories and empty bottles. Far more important is that the items described in the
application do not fall under the list of personal property which may be seized under
Section 2, Rule 126 of the Rules on Criminal Procedure because neither the application
nor the joint deposition alleged that the item/s sought to be seized were: a) the subject
of an offense; b) stolen or embezzled property and other proceeds or fruits of an
offense; and c) used or intended to be used as a means of committing an offense.

4. ID.; ID.; ID.;SEIZURE OF INCRIMINATING ARTICLES, CANNOT VALIDATE AN

INVALID WARRANT. No matter how incriminating the articles taken from
the petitioner may be, their seizure cannot validate an invalid warrant. Again, in the
case of Mata v. Bayona, G.R. No. 50720, March 26, 1984, 128 SCRA 388: ". . . that
nothing can justify the issuance of the search warrant but the fulfillment of the legal
requisites. It might be well to point out what has been said in Asian Surety & Insurance
Co., Inc. v. Herrera: It has been said that of all the rights of a citizen, few are of
greater importance or more essential to his peace and happiness than the right of
personal security, and that involves the exemption of his private affairs, books and
papers from inspection and scrutiny of others. While the power to search and seize is
necessary to the public welfare, still it must be exercised and the law enforced without
transgressing the constitutional rights of the citizens, for the enforcement of no statute
is of sufficient importance to justify indifference to the basic principles of government."
"Thus, in issuing a search warrant the Judge must strictly comply with the requirements
of the Constitution and the statutory provisions. A liberal construction should be given
in favor of the individual to prevent stealthy encroachment upon, or gradual
depreciation of the rights secured by the Constitution. No presumption of regularity are
to be invoked in aid of the process when an officer undertakes to justify it."

DECISION

MEDIALDEA, J.:

This petition for review on certiorari seeks to set aside the decision (pp. 38-42, Rollo) of
respondent Court of Appeals which affirmed the orders dated August 24, 1987 (p. 43,
Record) and October 14, 1987, (pp. 53-54, Record) of the Regional Trial Court of
Negros Occidental in Criminal Case No. 5657.

On February 4, 1987, First Lieutenant Felipe L. Rojas, Officer-in-Charge of the

Philippine Constabulary-Criminal Investigation Service (PC-CIS), Bacolod City, filed an
application for a search warrant, alleging:jgc:chanrobles. com.ph

"x x x.
"That he was informed and verily believes that KENNETH SIAO who may be found at
KENER TRADING located at Rizal Street corner Lacson Street, Bacolod City has/have in
her/his/their possession and control the following property/ies, to wit: jgc:chanrobles. com.ph

"NAPOCOR Galvanized bolts, grounding motor drive assembly; aluminum wires and
other NAPOCOR Tower parts and line accessories.

which he/she/they is/are concealing in the premises above mentioned.

"The undersigned has verified the report and found it to be the fact and has therefore
reasons to believe that a SEARCH WARRANT should be issued to enable the
undersigned or any agent of the law to take possession and bring the following
described property/ies, to wit: jgc:chanrobles. com.ph

"NAPOCOR Galvanized bolts; grounding motor drive assembly; aluminum wires and
other NAPOCOR Tower parts and line accessories.

"WHEREFORE, the undersigned prays this Honorable Court to issue a SEARCH

WARRANT commanding any peace officer to search the premises/house described in
this application and to seize and bring to this Honorable Court the person/property/ies
above-mentioned to be dealt with as the law may direct.

Bacolod City, Philippines

Feb. 4, 1987 .

SGD. FELIPE L. ROJAS, JR.

ILT, PC

OIC, PFOCIS, Bacolod City"

(p. 18, Records)

The application was subscribed before Judge Demosthenes D. Magallanes of the

Municipal Trial Court of Bacolod City and supported by the joint deposition of two (2)
witnesses, Ignacio L. Reyes, an employee of NAPOCOR (National Power Corporation)
and IAI Eduardo Abaja of the CIS of Bacolod City, quoted as follows: chanrob les.co m:cra law:red

"We, Ignacio L. Reyes and IAI Eduardo Abaja, CIS after having been duly sworn to,
testify as follows:jgc:chanrobles. com.ph

"1. QUESTION: What are your names and other personal circumstances?

"ANSWER: IGNACIO L. REYES, 34 years old, married, an employee of NAPOCOR and

presently residing at Eroreco Subdivision, Bacolod City and AIA EDUARDO ABAJA, CIS,
regular member of the CO/INP CIS Command, Bacolod City.

"2. QUESTION: Do you know the premises/house of KENNETH SIAO located at Rizal
Street, near cor. Lacson St., Bacolod City?

"ANSWER: Yes, Sir.

"3. QUESTION: Do you have personal knowledge that said KENNETH SIAO who may be
found in the said premises/house has/have in his/her/their possession and control the
following property, to wit:
jgc:chanrobles. com.ph

"NAPOCOR Galvanized bolts, grounding motor drive assembly, aluminum wires and
other NAPOCOR Tower parts and line accessories?

"ANSWER: Yes, sir.

"4. QUESTION: How do you know that above-described property/ies is/are being kept
in said premises/house?

"ANSWER: We conducted surveillance and we were able to purchase some of these

items.

"IN WITNESS WHEREOF, we hereunto set our hands and affixed our signature this 4th
day of Feb. 1987 at Bacolod City, Philippines.

"SGD. IGNACIO L. REYES SGD. EDUARDO J. ABAJA Affiant Affiant

SUBSCRIBED AND SWORN to, before me this 4th day of Feb. 1987 at Bacolod City,
Philippines.

SGD. DEMOSTHENES L. MAGALLANES

Judge

MUNICIPAL TRIAL COURT

BACOLOD CITY"

(p. 19, Record)

On the basis of the foregoing application and joint deposition, Judge Magallanes issued
Search Warrant No. 181, commanding the search of the property described in the
warrant.

Subsequently, constabulary officers stationed in Bacolod City conducted a search of the

premises described in the search warrant and seized the following articles, to wit: 1)
272 kilos of galvanized bolts, V chuckle and U-bolts; and 2) 3 and 1/2 feet angular bar.
The receipt was signed by Digno Mamaril, PC Sergeant and marked "from Kenneth
Siao" (p. 21, Record).

A complaint for violation of the Anti-Fencing Law (P.D. 1612) was filed against Kenneth
Siao with the office of the City Fiscal by the National Power Corporation. Thereafter,
Siao filed a counter-affidavit alleging that he had previously relinquished all his rights
and ownership over the Kener Trading to herein petitioner Erle Pendon. In
a resolution (pp. 22-23, Record) dated May 18, 1987, the office of the City Fiscal
recommended the dismissal of the complaint against Siao and the filing of a complaint
for the same violation against petitioner. On the same day, a complaint (p. 24, Record)
for Violation of the Anti-Fencing Law was filed against petitioner and docketed as
Criminal Case No. 5657 of the Regional Trial Court of Negros Occidental. The case was
raffled to Branch 47 of the same court presided over by respondent Judge Enrique T.
Jocson.

Before his arraignment, petitioner filed on July 9, 1987, an application for the return of
the articles seized by virtue of Search Warrant No. 181 (pp. 26-29, Record) on the
ground that the said search warrant was illegally issued. The prosecuting fiscal filed an
opposition to the application (pp. 31-32, Record). The application was subsequently
amended to an application for quashal of the illegally-issued search warrant and for the
return of the articles seized by virtue thereof (pp. 33-38, Records).

On August 24, 1987, respondent Judge Jocson issued an order impliedly denying the
application for the quashal of the search warrant without ruling on the issue of the
validity of the issuance thereof. The order states: jgc:chanrobles. com.ph

"Counsel for accused having admitted in the hearing in open court that at least one of
the seized items bears the identifying mark of the complainant National Power
Corporation, and there being no statement that the seized items were acquired in usual
course of business for value, this court is constrained to have the case tried without
resolving whether or not the questioned search warrant was issued validly." (p. 43,
Records)

A motion for reconsideration was filed by petitioner but it was denied on October 14,
1987 (p. 11, Rollo).

On October 20, 1987, petitioner filed with the Court of Appeals a petition for certiorari,
prohibition and mandamus with a prayer for a restraining order, assailing the legality of
search warrant No. 181 and praying for the permanent prohibition against the use in
evidence of the articles and properties seized and the return thereof to petitioner. On
April 4, 1988, respondent Court of Appeals dismissed the petition. The appellate court
found the existence of a probable cause to justify the issuance of the search warrant.
The respondent court held: jgc:chanrobles. com.ph

"x x x

"For reasons indicated, We hold that the evidence was sufficient to sustain the validity
of the issuance of the Search Warrant No. 181 and to sustain further the ruling of the
respondent trial court in denying the petition for the return of the articles and personal
properties seized thereunder.

"WHEREFORE, this petition is hereby DISMISSED, with costs against petitioner. The
previous order to maintain the status quo is hereby withdrawn and set aside.

"SO ORDERED." (p. 41, Rollo)

The motion for reconsideration of the above decision filed by petitioner on May 2, 1988
was denied in a resolution (p. 49, Rollo) dated July 21, 1988.

The basic issue raised in this petition is the legality of the issuance of Search Warrant
No. 181. It is the contention of petitioner that the application for the search warrant
and the joint deposition of the witnesses miserably failed to fulfill the requirements
prescribed by the Constitution and the rules.

The petitioner argues that the application of 1st Lt. Rojas and the joint deposition of
Abaja and Reyes failed to comply with the requisites of searching questions and
answers. The joint deposition of the witnesses showed that the questions therein were
pretyped, mimeographed and the answers of the witnesses were merely filled-in. No
examination of the applicant and of the joint deponents was personally conducted by
Judge Magallanes as required by law and the rules.

Additionally, petitioner also contends that both the application of Rojas and the joint
deposition of Abaya and Reyes show that neither of the affiants had personal
knowledge that any specific offense was committed by petitioner or that the articles
sought to be seized were stolen or that being so, they were brought to Kenneth
Siao.chanroble s virtualawl ibra ry cha nrob les.co m:chan roble s.com.p h

Lastly, the petitioner contends that, even assuming for the sake of polemics, that the
articles belong to the latter, his Constitutional right prevails over that of NAPOCOR.

The right against unreasonable searches and seizures is guaranteed under Article III
(Bill of Rights), Section 2 of the 1987 Constitution of the Philippines which provides: jgc:chanrob les.co m.ph

"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 alter examination
under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be
seized." cralaw virt ua1aw lib ra ry

Under the above provision, the issuance of a search warrant is justified only upon a
finding of probable cause. Probable cause for a search has been defined as such facts
and circumstances which would lead a reasonably discreet and prudent man to believe
that an offense has been committed and that the objects sought in connection with the
offense are in the place sought to be searched (Burgos, Sr. v. Chief of Staff, G.R.
No. 64261, Dec. 26, 1984, 133 SCRA 800). In determining the existence of probable
cause, it is required that: 1) the judge (or) officer must examine the . . witnesses
personally; 2) the examination must be under oath; and (3) the examination must be
reduced to writing in the form of searching questions and answers (Marinas v. Sioco,
104 SCRA 403, Ponsica v. Ignalaga, G.R. No. 72301, July 31, 1987, 152 SCRA 647).
These requirements are provided under Section 4, Rule 126 of the New Rules of
Criminal Procedure which states: "Sec. 4. Examination of complainant; record. The
judge must, before issuing the warrant, personally examine in the form of searching
questions and answers, in writing and under oath the complainant and the witnesses he
may produce on facts personally known to them and attach to the record their sworn
statements together with any affidavits submitted." cralaw virtua1aw l ibra ry

It has been ruled that the existence of probable cause depends to a large degree upon
the finding or opinion of the judge conducting the examination (Luna v. Plaza, G.R.
No. L-27511, Nov. 29, 1968), however, the opinion or finding of probable cause must,
to a certain degree, be substantiated or supported by the record.

In this case, We find that the requirement mandated by the law and the rules that the
judge must personally examine the applicant and his witnesses in the form of searching
questions and answers before issuing the warrant, was not sufficiently complied with.
The applicant himself was not asked any searching question by Judge Magallanes. The
records disclose that the only part played by the applicant, Lieutenant Rojas was to
subscribe the application before Judge Magallanes. The application contained pre-typed
questions, none of which stated that applicant had personal knowledge of a robbery or
a theft and that the proceeds thereof are in the possession and control of the person
against whom the search warrant was sought to be issued. In the case of Roan v.
Gonzales, G.R. No. 71410, Nov. 25, 1986, 145 SCRA 687, citing the case of Mata v.
Bayona, G.R. No. 50720, March 26, 1984, 128 SCRA 388, where the applicant himself
was not subjected to an interrogation but was questioned only "to ascertain, among
others, if he knew and understood (his affidavit) and only because the application was
not yet subscribed and sworn to," We held that: jgc:chanrobles. com.ph

"Mere affidavits of the complainant and his witnesses are thus not sufficient. The
examining Judge has to take depositions in writing of the complainant and the
witnesses he may produce and attach them to the record. Such written deposition is
necessary in order that the Judge may be able to properly determine the existence or
non-existence of the probable cause, to hold liable for perjury the person giving it if it
will be found later that his declarations are false.

"x x x

"It is axiomatic that the examination must be probing and exhaustive, not merely
routinary or pro forma, if the claimed probable cause is to be established. The
examining magistrate must not simply rehash the contents of the affidavit but must
make his own inquiry on the intent and justification of the application." (Emphasis
supplied; p. 695)

Likewise, the joint deposition made by the two (2) witnesses presented by the applicant
can hardly satisfy the same requirement. The public respondent prosecutor admitted in
his memorandum that the questions propounded were pre-typed. chanrobles. com.ph : vi rtua l l aw libra ry

The offense which petitioner was sought to be charged was violation of the anti-fencing
law which punishes the act of any person who, with intent to gain for himself or for
another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall
buy or sell, or in any other manner deal in any article, item, object or anything of value
which he knows, or should have known to him, to have been derived from the proceeds
of the crime of robbery or theft (Sec. 2a, P.D. 1612). The four (4) questions
propounded could hardly support a finding of probable cause. The first question was on
the personal circumstances of the deponents. The second and third were leading
questions answerable by yes or no. The fourth question was on how the deponents
knew about their answers in the second and third questions. The judge could have
exploited this last question to convince himself of the existence of a probable cause but
he did not. There was also no statement in the joint deposition that the articles sought
to be seized were derived from the proceeds of the crime of robbery or a theft or that
applicants have any knowledge that a robbery or theft was committed and the articles
sought to be seized were the proceeds thereof. It was not even shown what connection
Kenneth Siao has with Kener Trading or with the premises sought to be searched. By
and large, neither the application nor the joint deposition provided facts or
circumstance which could lead a prudent man to believe that an offense had been
committed and that the objects sought in connection with the offense, if any, are in the
possession of the person named in the application.

". . . [T]he searching questions propounded to the applicants of the search warrant and
his witnesses must depend to a large extent upon the discretion of the Judge just as
long as the answers establish a reasonable ground to believe the commission of a
specific offense and that the applicant is one authorized by law, and said answers
particularly describe with certainty the place to be searched and the persons or things
to be seized. The examination or investigation which must be under oath may not be in
public. It may even be held in the secrecy of his chambers. Far more important is that
the examination or investigation is not merely routinary but one that is thorough and
elicit the required information. To repeat, it must be under oath and must be in writing.
(Mata v. Bayona, 50720, March 26, 1984, 128 SCRA 388) (Emphasis supplied)

And, in Quintero v. NBI, G.R. No. L-35149, June 23, 1988, 162 SCRA 467, 483: jgc:chanrob les.co m.ph

"As held in Nolasco v. Pao No. 69803, October 8, 1985, 139 SCRA 163), the questions
propounded by respondent Executive Judge to the applicants witness are not
sufficiently searching to establish probable cause. Asking of leading questions to the
deponent in an application for search warrant, and conducting of examination in a
general manner, would not satisfy the requirements for issuance of a valid search
warrant."cralaw virt ua1aw lib rary

Another infirmity of Search Warrant No. 181 is its generality. The law requires that the
articles sought to be seized must be described with particularity. The items listed in the
warrant, to wit: "NAPOCOR Galvanized bolts, grounding motor drive assembly,
aluminum wires and other NAPOCOR Towers parts and line accessories" are so general
that the searching team can practically take half of the business of Kener Trading, the
premises searched. Kener Trading, as alleged in petitioners petition before respondent
Court of Appeals and which has not been denied by respondent, is engaged in the
business of buying and selling scrap metals, second hand spare parts and accessories
and empty bottles.

Far more important is that the items described in the application do not fall under the
list of personal property which may be seized under Section 2, Rule 126 of the Rules on
Criminal Procedure because neither the application nor the joint deposition alleged that
the item/s sought to be seized were: a) the subject of an offense; b) stolen or
embezzled property and other proceeds or fruits of an offense; and c) used or intended
to be used as a means of committing an offense. chanrobles vi rtua lawlib rary chan roble s.com:c hanro bles. com.ph

It is noted that respondent Judge Jocson himself had doubts about the existence of
probable cause in the issuance of the search warrant. In denying petitioners motion for
reconsideration of the denial of his motion to quash and application for articles seized
by virtue of search warrant No. 181, he stated: jgc:chanroble s.com. ph

"The seeming lack of probable cause during the application for search warrant in the
lower court is cured by the admission for the accused of counsel that at least one of the
items seized bore the identifying mark of complainant National Power Corporation and
the failure to aver in the quashal motion and in the open hearing that the seized items
themselves were acquired in the usual course of business for value in good faith.
However, this order is without prejudice to the right of the accused to pursue against
the administrative liability of MTCC Judge Demosthenes Magallanes." (p. 54, Rollo)

In his memorandum, City Fiscal Mirano stated that the articles seized by virtue of
search warrant No. 181 was taken from the possession of petitioner who signed the
receipt in behalf of Kener Trading, which possession is punishable under Section 5, P.D.
1612, which states: jgc:chanrob les.com. ph

"Sec. 5. Presumption of Fencing. Mere possession of any goods, article, item, object
or anything of value which has been the subject of robbery or thievery shall be prima
facie evidence of fencing."cralaw virtua1aw lib rary

No matter how incriminating the articles taken from the petitioner may be, their seizure
cannot validate an invalid warrant. Again, in the case of Mata v. Bayona, G.R.
No. 50720, March 26, 1984, 128 SCRA 388: jgc:chanrobles .com.ph

". . . that nothing can justify the issuance of the search warrant but the fulfillment of
the legal requisites. It might be well to point out what has been said in Asian Surety &
Insurance Co., Inc. v. Herrera: chanrob1e s virtual 1aw l ib rary

It has been said that of all the rights of a citizen, few are of greater importance or
more essential to his peace and happiness than the right of personal security, and that
involves the exemption of his private affairs, books and papers from inspection and
scrutiny of others. While the power to search and seize is necessary to the public
welfare, still it must be exercised and the law enforced without transgressing the
constitutional rights of the citizens, for the enforcement of no statute is of sufficient
importance to justify indifference to the basic principles of government." cralaw virtua 1aw lib rary

"Thus, in issuing a search warrant the Judge must strictly comply with the requirements
of the Constitution and the statutory provisions. A liberal construction should be given
in favor of the individual to prevent stealthy encroachment upon, or gradual
depreciation of the rights secured by the Constitution. No presumption of regularity are
to be invoked in aid of the process when an officer undertakes to justify it." cralaw virt ua1aw lib ra ry

Finally, the seized articles were described in the receipt issued by PC Sergeant Mamaril
as galvanized bolts, V-chuckle, U-bolts and 3 1/2 feet angular bar (p. 21, Record).
There is no showing that the possession thereof is prohibited by law hence, the return
thereof to petitioner is proper. Also, the use in evidence of the articles seized pursuant
to an invalid search warrant is enjoined by Section 3(2), Article III of the Constitution.

ACCORDINGLY, the petition is GRANTED. Judgment is hereby rendered: 1) declaring

Search Warrant No. 181 issued by Judge Demosthenes Magallanes NULL and VOID; 2)
ordering the return of the items seized by virtue of the said warrant to
herein petitioner; and 3) permanently enjoining respondents from using in evidence the
articles seized by virtue of Search Warrant No. 181 in Criminal Case No. 5657. chanroble s virtual law lib rary

SO ORDERED.
G.R. No. L-69803 October 8, 1985

CYNTHIA D. NOLASCO, MILA AGUILAR-ROQUE and WILLIE C.

TOLENTINO, petitioners,
vs.
HON. ERNANI CRUZ PAO, Executive Judge, Regional Trial Court of
Quezon City; HON. ANTONIO P. SANTOS, Presiding Judge, Branch XLII,
Metropolitan Trial Court of Quezon City: HON. SERGIO F. APOSTOL, City
Fiscal, Quezon City; HON. JUAN PONCE ENRILE, LT. GEN. FIDEL RAMOS
and COL. JESUS ALTUNA, respondents.

Jose W .Diokno, Joker P. Arroyo, Rene A. V. Sarmiento, Dan Malabonga and

Cesar Maravilla for petitioners.

MELENCIO-HERRERA, J.:

The facts before the Court in these Certiorari, Prohibition, and mandamus
proceedings will be briefly stated. The three petitioners will be referred to through
their surnames of NOLASCO, AGUILAR-ROQUE and TOLENTINO.

1. Prior to August 6, 1984 (hereinafter to be referred to without the year),

AGUILAR-ROQUE was one of the accused of Rebellion in Criminal Case No.
MC-25-113 of Military Commission No. 25, both cases being entitled "People of
the Philippines vs. Jose Ma. Sison, et al." She was then still at large.

2. At 11:30 A.M. on August 6th, AGUILAR-ROQUE and NOLASCO were

arrested by a Constabulary Security Group (CSG) at the intersection of Mayon
Street and P. Margall Street, Quezon City. The stated time is an allegation of
petitioners, not denied by respondents. The record does not disclose that a
warrant of arrest had previously beeen issued against NOLASCO.

3. At 12:00 N. on August 6th, elements of the CSG searched the premises at

239-B Mayon Street, Quezon City. The stated time is an allegation of petitioners,
not specifically denied by respondents. In their COMMENT, however,
respondents have alleged that the search was conducted "late on the same day";
that is late on august 6th.

4. On August 6th, at around 9:00 A.M., Lt. Col. Virgilio G. Saldajeno of the CSG,
applied for a Search Warrant from respondent Hon. Ernani Cruz Pao, Executive
Judge of the Regional Trial Court in Quezon City, to be served at No. 239-B
Mayon Street, Quezon City, determined tyo be the leased residence of
AGUILAR-ROQUE, after almost a month of "round the clock surveillance" of the
premises as a "suspected underground house of the CPP/NPA." AGUILAR-
ROQUE has been long wanted by the military for being a high ranking officer of
the Communist Party of the Philippines, particularly connected with the MV
Karagatan/Doa Andrea cases.

In connection with the Search Warrant issued, the following may be stated:

(a) The Search Warrant was issued in proceedings entitled "People of the
Philippines vs. Mila Aguilar-Roque, Accused, Search Warrant No. 80- 84
for rebellion" (the SEARCH WARRANT CASE). Judge Panos Court was Branch
88.

(b) It does not appear from the records before us that an application in writing
was submitted by Lt. Col. Saldajeno to Judge Pao.

(c) According to the record, Lt. Col. Saldajeno and his witness S/A Dionicio A.
Lapus, were examined under oath by Judge Pao but only the deposition of S/A
Lapus has been submitted to us. The latter deposed that to his personal
knowledge, there were kept in the premises to be searched records, documents
and other papers of the CPP/NPA and the National Democratic Front, including
support money from foreign and local sources intended to be used for rebellion. 1

5. In connection with the search made at 12:00 N. of August 6th the following
may be stated:

(a) TOLENTINO was a person then in charge of the premises. He was arrested
by the searching party presumably without a warrant of arrest.

(b) The searching party seized 428 documents and written materials, 2 and
3
additionally a portable typewriter, and 2 wooden boxes, making 431 items in all.

(c) According to the Return, submitted in the SEARCH WARRANT CASE on

August 10th, 4 the search was made in the presence of Dra. Marciana Galang, owner of the premises,
and of two (2) Barangay Tanods. No mention was made that TOLENTINO was present. The list of the
428 articles and documents attached to the Return was signed by the two Barangay Tanods, but not by
Dra. Galang.

6. (a) On August 10th, the three petitioners, AGUILAR-ROQUE, NOLASCO and

TOLENTINO, were charged before the Quezon City Fiscal's Office (the CITY
FISCAL, for short) upon complaint filed by the CSG against petitioners for
"Subversion/Rebellion and/or Conspiracy to Commit Rebellion/Subversion."

(b) On August 13th, the CITY FISCAL filed an Information for Violation of
Presidential Decree No. 33 (Illegal Possession of Subversive Documents)
against petitioners before Branch 42 of the Metropolitan Trial Court of Quezon
City (the SUBVERSIVE DOCUMENTS CASE), respondent Judge Antonio P.
Santos, presiding.
(c) On August 16th, CSG filed a Motion for Reconsideration with the CITY
FISCAL, praying that AGUILAR-ROQUE and NOLASCO be charged with
Subversion. The Motion was denied on November 16th.

7. (a) On September 10th, the CSG submitted an Amended Return in the

SEARCH WARRANT CASE praying, inter alia, that the CSG be allowed to retain
the seized 431 documents and articles, in connection with cases that are
presently pending against Mila Aguilar Roque before the Quezon City Fiscal's
Office and the court. 5

(b) On September 28th, petitioners were required by Judge Pano to comment on

the Amended Return, which AGUILAR-ROQUE did on October 18th, raising the
issue of the inadmissibility of any evidence obtained pursuant to the Search
Warrant.

(c) On December 13, 1984, Judge Pao admitted the Amended Return and ruled
that the seized documents "shall be subject to disposition of the tribunal trying
the case against respondent."

8. (a) On December 12th, petitioners filed a Motion to Suppress in the

SUBVERSIVE DOCUMENTS CASE, praying that such of the 431 items
belonging to them be returned to them. It was claimed that the proceedings
under the Search Warrant were unlawful. Judge Santos denied the Motion on
January 7, 1985 on the ground that the validity of the Search Warrant has to be
litigated in the SEARCH WARRANT CASE. He was apparently not aware of the
Order of Judge Pao of December 13th issued in the SEARCH WARRANT
CASE.

Hence, this Petition for Certiorari, Prohibition and mandamus to annul and set
aside the (1) Search Warrant issued by respondent RTC Judge Pao; (2) his
Order admitting the Amended Return and granting the Motion to Retain Seized
Items; and (3) Order of respondent MTC Judge Santos denying petitioners'
Motion to Suppress.

This Court, on February 12, 1985, issued a Temporary Restraining Order

enjoining the respondents or their duly authorized representatives from
introducing evidence obtained under the Search Warrant.

The PETITIONERS principally assert that the Search Warrant is void because it
is a general warrant since it does not sufficiently describe with particularity the
things subject of the search and seizure, and that probable cause has not been
properly established for lack of searching questions propounded to the
applicant's witness. The respondents, represented by the Solicitor General,
contend otherwise, adding that the questions raised cannot be entertained in this
present petition without petitioners first moving for the quashal of the disputed
Search Warrant with the issuing Judge.
We find merit in the Petition.

Section 3, Article IV of the Constitution, guarantees 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. It also
specifically provides that no Search Warrant shall issue except upon probable
cause to be determined by the Judge or such other responsible officer as may be
authorized by law, after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to be
searched and the things to be seized.

The disputed Search Warrant (No. 80-84) describes the personalities to be

seized as follows:

Documents, papers and other records of the Communist Party of the

Phihppines/New Peoples Army and/or the National Democratic
Front, such as Minutes of the Party Meetings, Plans of these groups,
Programs, List of possible supporters, subversive books and
instructions, manuals not otherwise available to the public, and
support money from foreign or local sources.

It is at once evident that the foregoing Search Warrant authorizes the seizure of
personal properties vaguely described and not particularized. It is an all-
embracing description which includes everything conceivable regarding the
Communist Party of the Philippines and the National Democratic Front. It does
not specify what the subversive books and instructions are; what the manuals not
otherwise available to the public contain to make them subversive or to enable
them to be used for the crime of rebellion. There is absent a definite guideline to
the searching team as to what items might be lawfully seized thus giving the
officers of the law discretion regarding what articles they should seize as, in fact,
taken also were a portable typewriter and 2 wooden boxes. It is thus in the nature
of a general warrant and infringes on the constitutional mandate requiring
particular description of the things to be seized. In the recent rulings of this Court,
search warrants of similar description were considered null and void for being too
general. Thus:

Subversive documents, pamphlets, leaflets, books, and other

publications to promote the objectives and purposes of the
subversive organizations known as Movement for Free Philippines.
Light-a-Fire Movement and April 6 Movement. 6

The things to be seized under the warrant issued by respondent

judge were described as 'subversive documents, propaganda
materials, FAs, printing paraphernalia and all other subversive
materials Such description hardly provided a definite guideline to the
search team as to what articles might be lawfully seized thereunder.
 Said description is no different from if not worse than, the description
found in the search warrants in "Burgos, et al. v. the Chief of
Staff"which this Court declared null and void for being too general. 7

In the case at bar, the search warrant issued by respondent judge

allowed the seizure of printed copies of the Philippine Times,
manuscripts/drafts of articles for publication, newspaper dummies
subversive documents, articles, etc., and even typewriters,
duplicating machines, mimeographing and tape recording machines.
Thus, the language used is so all embracing as to include all
conceivable records and equipment of petitioner regardless of
whether they are legal or illegal. The search warrant under
consideration was in the nature of a general warrant which is
constitutionally objectionable. 8

The lack of particularization is also evident in the examination of the witness

presented by the applicant for Search Warrant.

Q Mr. Dionicio Lapus, there is an application for search

warrant filed by Lt. Col. Virgilio Saldajeno and the Court
would like to know if you affirm the truth of your answer
in this deposition?

(The deposition instead)

A Yes, sir,

Q How long did it take you for the surveillance?

A Almost a month, sir.

Q Are you a lawyer, Mr. Lapus?

A No, Your Honor, but I was a student of law.

Q So, you are more or less familiar with the requisites of

the application for search warrant?

A Yes, Your Honor.

Q How did you come to know of the person of Mila

Aguilar-Roque?

A Because of our day and night surveillance, Your

Honor, there were so many suspicious persons with
documents.
 Q What kind of documents do you refer to?

A Documents related to the Communist Party of

Philippines and New People's Army.

Q What else?

A Conferences of the top ranking officials from the

National Democratic Front, Organization of the
Communist Party of the Philippines ...

Q And may include what else?

A Other papers and documents like Minutes of the Party

Meetings, Plans of these groups, Programs, List of
possible supporters, subversive books and instructions,
manuals not otherwise available to the public and
support money from foreign and local sources. 9

The foregoing questions propounded by respondent Executive Judge to the

applicant's witness are not sufficiently searching to establish probable cause. The
"probable cause" required to justify the issuance of a search warrant
comprehends such facts and circumstances as will induce a cautious man to rely
upon them and act in pursuant thereof. 10 Of the 8 questions asked, the 1st, 2nd and 4th
pertain to Identity. The 3rd and 5th are leading not searching questions. The 6th, 7th and 8th refer to the
description of the personalities to be seized, which is Identical to that in the Search Warrant and suffers
from the same lack of particularity. The examination conducted was general in nature and merely
repetitious of the deposition of said witness. Mere generalization will not suffice and does not satisfy the
requirements of probable cause upon which a warrant may issue. 11

Respondents claim, however, that the proper forum for questioning the illegality
of a Search Warrant is with the Court that issued it instead of this original,
independent action to quash. The records show, however, that petitioners did
raise that issue in the SEARCH WARRANT CASE in their Comment, dated
October 18, 1984. In fact, they already questioned the admissibility of the
evidence obtained under the Search Warrant, even during the inquest
investigation on August 10, 1984. And in the SUBVERSIVE DOCUMENTS
CASE, they filed a Motion to Suppress on December 12, 1984 claiming that the
proceedings under the Search Warrant were unlawful. Substantially, therefore,
while not denominated as a motion to quash, petitioners had questioned the
legality of the Search Warrant.

Parenthetically, it strikes the Court that the pendency of the SEARCH WARRANT
CASE and of the SUBVERSIVE DOCUMENTS CASE before two different Courts
is not conducive to an orderly administration of justice. It should be advisable
that, whenever a Search Warrant has been issued by one Court, or Branch, and
a criminal prosecution is initiated in another Court, or Branch, as a result of the
service of the Search Warrant, the SEARCH WARRANT CASE should be
consolidated with the criminal case for orderly procedure. The later criminal case
is more substantial than the Search Warrant proceeding, and the Presiding
Judge in the criminal case should have the right to act on petitions to exclude
evidence unlawfully obtained.

Notwithstanding the irregular issuance of the Search Warrant and although,

ordinarily, the articles seized under an invalid search warrant should be returned,
they cannot be ordered returned in the case at bar to AGUILAR-ROQUE. Some
searches may be made without a warrant. Thus, Section 12, Rule 126, Rules of
Court, explicitly provides:

Section 12. Search without warrant of person arrested.A person

charged with an offense may be searched for dangerous weapons
or anything which may be used as proof of the commission of the
offense.

The provision is declaratory in the sense that it is confined to the search, without
a search warrant, of a person who had been arrested. It is also a general rule
that, as an incident of an arrest, the place or premises where the arrest was
made can also be search without a search warrant. In this latter case, "the extent
and reasonableness of the search must be decided on its own facts and
circumstances, and it has been stated that, in the application of general rules,
there is some confusion in the decisions as to what constitutes the extent of the
place or premises which may be searched. 12 "What must be considered is the balancing of
the individual's right to privacy and the public's interest in the prevention of crime and the apprehension of
criminals." 13

Considering that AGUILAR-ROQUE has been charged with Rebellion, which is a

crime against public order; that the warrant for her arrest has not been served for
a considerable period of time; that she was arrested within the general vicinity of
her dwelling; and that the search of her dwelling was made within a half hour of
her arrest, we are of the opinion that in her respect, the search at No. 239-B
Mayon Street, Quezon City, did not need a search warrant; this, for possible
effective results in the interest of public order.

Such being the case, the personalities seized may be retained. by CSG, for
possible introduction as evidence in the Rebellion Case, leaving it to AGUILAR-
ROQUE to object to their relevance and to ask Special Military Commission No.1
to return to her any and all irrelevant documents and articles.

WHEREFORE, while Search Warrant No. 80-84 issued on August 6, 1984 by

respondent Executive Judge Ernani Cruz Pao is hereby annulled and set aside,
and the Temporary Restraining Order enjoining respondent from introducing
evidence obtained pursuant to the Search Warrant in the Subversive Documents
case hereby made permanent, the, personalities seized may be retained by the
Constabulary Security Group for possible introduction as evidence in Criminal
Case No. SMC-1-1, pending before Special Military commission No. 1, without
prejudice to petitioner Mila Aguilar-Roque objecting to their relevance and asking
said Commission to return to her any and all irrelevant documents and articles.

SO ORDERED.

Plana, Escolin Relova, Gutierrez, Jr., De la Fuente, Alampay and Patajo concur.

Makasiar, C.J., concurs in the result.

Aquino, J.; took no part.

Concepcion Jr., J., reserves his vote.

G.R. No. 81756 October 21, 1991

NICOMEDES SILVA @ " Comedes", MARLON SILVA, @ "Tama" and ANTONIETA

SILVA, petitioners,
vs.
THE HONORABLE PRESIDING JUDGE, REGIONAL TRIAL COURT OF NEGROS ORIENTAL,
BRANCH XXXIII, DUMAGUETE CITY, respondent.

Marcelo G. Flores for petitioners.

FERNAN, C.J.:p

In this special civil action for certiorari, petitioners seek the nullification of Search Warrant No. 1
issued by respondent Judge as well as the return of the money in the amount of P1,231.00 seized
from petitioner Antonieta Silva.

The antecedent facts are as follows:

On June 13, 1986, M/Sgt. Ranulfo Villamor, Jr., as chief of the PC Narcom Detachment in
Dumaguete City, Negros Oriental, filed an "Application for Search Warrant" with the Regional Trial
Court, Branch XXXIII, Dumaguete City against petitioners Nicomedes Silva and Marlon Silva. 1 This
application was accompanied by a "Deposition of Witness" executed by Pfc. Arthur M. Alcoran and Pat. Leon T. Quindo, also dated June 13,
1986. 2

On the same day. Judge Nickarter A. Ontal, then Presiding Judge of the Regional Trial Court,
Branch XXXIII, Dumaguete City, pursuant to the said "Application for Search Warrant" and
"Deposition of Witness", issued Search Warrant No. 1, directing the aforesaid police officers to
search the room of Marlon Silva in the residence of Nicomedes Silva for violation of Republic Act No.
6425, otherwise known as the Dangerous Drugs Act of 1972. as amended. Pertinent portions of
Search Warrant No. 1 read as follows:

It appearing to the satisfaction of the undersigned after examining oath (sic) MSGT.
Ranulfo T. Villamor, Jr. and his witnesses (sic) Pfc. Arthur M. Alcoran and Pat. Leon
T. Quindo that there is probable cause to believe that possession and control of
Marijuana dried leaves, cigarettes, joint has been committed or is about to be
committed and that there are good and sufficient reasons to believe that marijuana
dried leaves, cigarettes, joint has in possession and/or control at Tama's Room (Rgt.
side lst Floor) located at Nono-Limbaga Drive, Tanjay, Neg. Or. which is/are:

X (Subject of the offense stated above

(Stolen or embezzled or other proceeds of fruits of the offense;

X (Used or intended to be used as means of committing an offense.

You are hereby commanded to make an immediate search at any time of the day
(night) of the room of Tama Silva residence of his father Comedes Silva to
open (sic) aparadors, lockers, cabinets, cartoons, containers, forthwith seize and
take possession of the following property Marijuana dried leaves, cigarettes, joint and
bring the said property to the undersigned to be dealt with as the law directs. 3
In the course of the search, the serving officers also seized money belonging to Antonieta Silva in
the amount of P1,231.40.

On June 16, 1986, Antonieta Silva filed a motion for the return of the said amount on the grounds
that the search warrant only authorized the serving officers to seize marijuana dried leaves,
cigarettes and joint, and that said officers failed or refused to make a return of the said search
warrant in gross violation of Section 11, Rule 126 of the Rules of Court. 4

Acting on said motion, Judge Ontal issued an Order dated July 1, 1986, stating that the court "holds
in abeyance the disposition of the said amount of P1,231.40 pending the filing of appropriate
charges in connection with the search warrant." 5

On July 28, 1987, petitioners filed a motion to quash Search Warrant No. 1 on the grounds that (1) it
was issued on the sole basis of a mimeographed "Application for Search Warrant" and "Deposition
of Witness", which were accomplished by merely filling in the blanks and (2) the judge failed to
personally examine the complainant and witnesses by searching questions and answers in violation
of Section 3, Rule 126 of the Rules of Court. 6

On August 11, 1987, respondent trial court, through Judge Eugenio M. Cruz, who, by then, had
replaced retired Judge Ontal, issued an Order denying the motion for lack of merit, finding the
requisites necessary for the issuance of a valid search warrant duly complied with. 7

A motion for reconsideration dated September 1, 1987 filed by petitioners was likewise denied by
Judge Cruz in an order dated October 19, 1987.

Hence, this special civil action for certiorari.

Petitioners allege that the issuance of Search Warrant No. 1 was tainted with illegality and that
respondent Judge should be viewed to have acted without or in excess of jurisdiction, or committed
grave abuse of discretion amounting to lack of jurisdiction when he issued the Order dated August
11, 1987, denying their motion to quash Search Warrant No, 1.

We rule for petitioners.

Section 2, Article III (Bill of Rights) of the 1987 Constitution guarantees the right to personal liberty
and security of homes against unreasonable searches and seizures. This section provides:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or
things to be seized.

The purpose of the constitutional provision against unlawful searches and seizures is to prevent
violations of private security in person and property, and unlawful invasion of the sanctity of the
home, by officers of the law acting under legislative or judicial sanction, and to give remedy against
such usurpations when attempted. 8

Thus, Sections 3 and 4, Rule 126 of the Rules of Court provide for the requisites for the issuance of
a search warrant, to wit:
 SEC. 3. Requisite for issuing search warrant. A search warrant shall not issue but
upon probable cause in connection with one specific offense to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place
to be searched and the things to be seized.

SEC. 4. Examination of complainant; record. The judge must, before issuing the
warrant, personally examine in the form of searching questions and answers, in
writing and under oath the complainant and any witnesses he may produce on facts
personally known to them and attach to the record their sworn statements together
with any affidavits submitted.

Based on the aforecited constitutional and statutory provisions, the judge must, before issuing a
search warrant, determine whether there is probable cause by examining the complainant and
witnesses through searching questions and answers.

In the case of Prudente vs. Dayrit, G.R. No. 82870, December 14, 1989, 180 SCRA 69, 767 this
Court defined "probable cause" as follows:

The "probable cause" for a valid search warrant, has been defined "as such facts and
circumstances which would lead a reasonably discreet and prudent man to believe
that an offense has been committed, and that objects sought in connection with the
offense are in the place sought to be searched". This probable cause must be shown
to be within the personal knowledge of the complainant or the witnesses he may
produce and not based on mere hearsay.

In the case at bar, we have carefully examined the questioned search warrant as well as the
"Application for Search Warrant" and "Deposition of Witness", and found that Judge Ontal failed to
comply with the legal requirement that he must examine the applicant and his witnesses in the form
of searching questions and answers in order to determine the existence of probable cause. The joint
"Deposition of Witness" executed by Pfc. Alcoran and Pat. Quindo, which was submitted together
with the "Application for Search Warrant" contained, for the most part suggestive questions
answerable by merely placing "yes" or "no" in the blanks provided thereon. In fact there were only
four (4) questions asked, to wit:

Q Do you personally know M/Sgt. Ranulfo Villamor, Jr. the applicant

for a search warrant?

A Yes, sir.

Q Do you have personal knowledge that the said premises subject of

the offense stated above, and other proceeds of fruit of the offense,
used or obtain (sic) or intended to be used as means of committing
an offense?

A Yes, sir.

Q Do you know personally who is/are the person who has/have the
property in his/their possession and control?

A Yes, sir.

Q How did you know all this (sic) things?

 A Through discreet surveillance. 9

The above deposition did not only contain leading questions but it was also very broad. The
questions propounded to the witnesses were in fact, not probing but were merely routinary. The
deposition was already mimeogragphed and all that the witnesses had to do was fill in their answers
on the blanks provided.

In the case of Nolasco vs. Pao, G.R. No. 69803, October 8, 1985, 139 SCRA 152, 163, this Court
held:

The "probable cause" required to justify the issuance of a search warrant

comprehends such facts and circumstances as will induce a cautious man to rely
upon them and act in pursuant thereof. Of the 8 questions asked, the 1st, 2nd and
4th pertain to identity. The 3rd and 5th are leading not searching questions. The 6th,
7th and 8th refer to the description of the personalities to be seized, which is identical
to that in the Search Warrant and suffers from the same lack of particularity. The
examination conducted was general in nature and merely repetitious of the
deposition of said witness. Mere generalization will not suffice and does not satisfy
the requirements or probable cause upon which a warrant may issue.

Likewise, in the Prudente case cited earlier, this Court declared the search warrant issued as invalid
due to the failure of the judge to examine the witness in the form of searching questions and
answers. Pertinent portion of the decision reads:

Moreover, a perusal of the deposition of P/Lt. Florencio Angeles shows that it was
too brief and short. Respondent Judge did not examine him "in the form of searching
questions and answers". On the contrary, the questions asked were leading as they
called for a simple "yes" or "no" answer. As held in Quintero vs. NBI, "the questions
propounded by respondent Executive Judge to the applicant's witness' are not
sufficiently searching to establish probable cause. Asking of leading questions to the
deponent in an application for search warrant, and conducting of examination in a
general manner, would not satisfy the requirements for issuance of a valid search
warrant. 10

Thus, in issuing a search warrant, the judge must strictly comply with the constitutional and statutory
requirement that he must determine the existence of probable cause by personally examining the
applicant and his witnesses in the form of searching questions and answers. His failure to comply
with this requirement constitutes grave abuse of discretion. As declared in Marcelo vs. De
Guzman, G.R. No. L-29077, June 29, 1982, 114 SCRA 657, "the capricious disregard by the judge
in not complying with the requirements before issuance of search warrants constitutes abuse of
discretion".

The officers implementing the search warrant clearly abused their authority when they seized the
money of Antonieta Silva. This is highly irregular considering that Antonieta Silva was not even
named as one of the respondents, that the warrant did not indicate the seizure of money but only of
marijuana leaves, cigarettes and joints, and that the search warrant was issued for the seizure of
personal property (a) subject of the offense and (b) used or intended to be used as means of
committing an offense and NOT for personal property stolen or embezzled or other proceeds of fruits
of the offense. Thus, the then presiding Judge Ontal likewise abused his discretion when he rejected
the motion of petitioner Antonieta Silva seeking the return of her seized money.

WHEREFORE, the petition is granted. Search Warrant No. 1 is hereby declared null and void.
Respondent Judge of the Regional Trial Court of Negros Oriental, Branch XXXIII is directed to order
the return to petitioner Antonieta Silva of the amount of P1,231.40 which had earlier been seized
from her by virtue of the illegal search warrant. This decision is immediately executory. No costs.
SO ORDERED.
G.R. No. 82870 December 14, 1989

DR. NEMESIO E. PRUDENTE, petitioner,

vs.
THE HON. EXECUTIVE JUDGE ABELARDO M. DAYRIT, RTC Manila, Branch
33 and PEOPLE OF THE PHILIPPINES, respondents.

Francisco SB Acejas III, Oscar S. Atencio, Rodolfo M. Capocyan, Ernesto P.

Fernandez, Romulo B. Macalintal, Rodrigo H. Melchor, Rudegelio D. Tacorda
Virgilio L. Valle and Luciano D. Valencia for petitioner.

PADILLA, J.:

This is a petition for certiorari to annul and set aside the order of respondent
Judge dated 9 March 1988 which denied the petitioner's motion to quash Search
Warrant No. 87-14, as well as his order dated 20 April 1988 denying petitioner's
motion for reconsideration of the earlier order.

It appears that on 31 October 1987, P/Major Alladin Dimagmaliw, Chief of the

Intelligence Special Action Division (ISAD) of the Western Police District (WPD)
filed with the Regional Trial Court (RTC) of Manila, Branch 33, presided over by
respondent Judge Abelardo Dayrit, now Associate Justice of the Court of
Appeals. an application 1 for the issuance of a search warrant, docketed therein as SEARCH
WARRANT NO. 87-14, for VIOLATION OF PD NO. 1866 (Illegal Possession of Firearms, etc.) entitled
"People of the Philippines, Plaintiff, versus Nemesis E. Prudente, Defendant." In his application for search
warrant, P/Major Alladin Dimagmaliw alleged, among others, as follows:

1. That he has been informed and has good and sufficient reasons
to believe that NEMESIO PRUDENTE who may be found at the
Polytechnic University of the Philippines, Anonas St. Sta. Mesa,
Sampaloc, Manila, has in his control or possession firearms,
explosives handgrenades and ammunition which are illegally
possessed or intended to be used as the means of committing an
offense which the said NEMESIO PRUDENTE is keeping and
concealing at the following premises of the Polytechnic University of
the Philippines, to wit:

a. Offices of the Department of Military Science and

Tactics at the ground floor and other rooms at the
ground floor;

b. Office of the President, Dr. Nemesio Prudente at

PUP, Second Floor and other rooms at the second floor;
 2. That the undersigned has verified the report and found it to be a
fact, and therefore, believes that a Search Warrant should be issued
to enable the undersigned or any agent of the law to take
possession and bring to this Honorable Court the following
described properties:

a. M 16 Armalites with ammunitions;

b. .38 and .45 Caliber handguns and pistols;

c. explosives and handgrenades; and,

d. assorted weapons with ammunitions.

In support of the application for issuance of search warrant, P/Lt. Florenio C.

Angeles, OIC of the Intelligence Section of (ISAD) executed a "Deposition of
Witness" dated 31 October 1987, subscribed and sworn to before respondent
Judge. In his deposition, P/Lt. Florenio Angeles declared, inter alia, as follows:

Q: Do you know P/Major Alladin Dimagmaliw, the

applicant for a Search Warrant?

A: Yes, sir, he is the Chief, Intelligence and Special

Action Division, Western Police District.

Q: Do you know the premises of Polytechnic University

of the Philippines at Anonas St., Sta. Mesa, Sampaloc,
Manila

A: Yes, sir, the said place has been the subject of our
surveillance and observation during the past few days.

Q: Do you have personal knowledge that in the said

premises is kept the following properties subject of the
offense of violation of PD No. 1866 or intended to be
used as a means of committing an offense:

a. M 16 Armalites with ammunitions;

b. .38 and 45 Caliber handguns and pistols;

c. explosives and handgrenades; and d. Assorted weapons with

ammunitions?

A: Yes sir.
 Q: Do you know who is or who are the person or
persons who has or have control of the above-described
premises?

A: Yes sir, it is Dr. Nemesio Prudente, President of the

Polytechnic University of the Philippines.

Q: How do you know that said property is subject of the

offense of violation of Pres. Decree No. 1866 or
intended to be used as the means of committing an
offense?

A: Sir, as a result of our continuous surveillance

conducted for several days, we gathered information
from verified sources that the holder of said firearms
and explosives as well as ammunitions aren't licensed
to possess said firearms and ammunition. Further, the
premises is a school and the holders of these firearms
are not students who were not supposed to possess
firearms, explosives and ammunition.

On the same day, 31 October 1987, respondent Judge issued Search Warrant
No. 87-14, 3 the pertinent portions of which read as follows:

It appearing to the satisfaction of the undersigned, after examining

under oath applicant ALLADIN M. DIMAGMALIW and his witness
FLORENIO C. ANGELES that there are good and sufficient reasons
to believe (probable cause) that NEMESIO PRUDENTE has in his
control in the premises of Polytechnic University of the Philippines,
Anonas St., Sta. Mesa, Sampaloc, Manila, properties which are
subject of the above offense or intended to be used as the means of
committing the said offense.

You are hereby commanded to make an immediate search at any

time in the day or night of the premises of Polytechnic University of
the Philippines, more particularly (a) offices of the Department of
Military Science and Tactics at the ground floor and other rooms at
the ground floor; (b) office of the President, Dr. Nemesio Prudente at
PUP, Second Floor and other rooms at the second floor, and
forthwith seize and take possession of the following personal
properties, to wit:

a. M 16 Armalites with ammunition;

b. .38 and .45 Caliber handguns and pistols;

 c. explosives and hand grenades; and

d. assorted weapons with ammunitions.

and bring the above described properties to the undersigned to be

dealt with as the law directs.

On 1 November 1987, a Sunday and All Saints Day, the search warrant was
enforced by some 200 WPD operatives led by P/Col. Edgar Dula Torre, Deputy
Superintendent, WPD, and P/Major Romeo Maganto, Precinct 8 Commander.

In his affidavit, 4 dated 2 November 1987, Ricardo Abando y Yusay, a member of the searching
team, alleged that he found in the drawer of a cabinet inside the wash room of Dr. Prudente's office a
bulging brown envelope with three (3) live fragmentation hand grenades separately wrapped with old
newspapers, classified by P/Sgt. J.L. Cruz as follows (a) one (1) pc.M33 Fragmentation hand grenade
(live); (b) one (11) pc.M26 Fragmentation hand grenade (live); and (c) one (1) pc.PRB423
Fragmentation hand grenade (live).

On 6 November 1987, petitioner moved to quash the search warrant. He claimed

that (1) the complainant's lone witness, Lt. Florenio C. Angeles, had no personal
knowledge of the facts which formed the basis for the issuance of the search
warrant; (2) the examination of the said witness was not in the form of searching
questions and answers; (3) the search warrant was a general warrant, for the
reason that it did not particularly describe the place to be searched and that it
failed to charge one specific offense; and (4) the search warrant was issued in
violation of Circular No. 19 of the Supreme Court in that the complainant failed to
allege under oath that the issuance of the search warrant on a Saturday was
urgent. 5

The applicant, P/Major Alladin Dimagmaliw thru the Chief, Inspectorate and
Legal Affairs Division, WPD, opposed the motion. 6 After petitioner had filed his reply 7 to
the opposition, he filed a supplemental motion to quash. 8

Thereafter, on 9 March 1988, respondent Judge issued an order, 9denying the

10
petitioner's motion and supplemental motion to quash. Petitioner's motion for reconsideration was
likewise denied in the order 11 dated 20 April 1988.

Hence, the present recourse, petitioner alleging that respondent Judge has
decided a question of substance in a manner not in accord with law or applicable
decisions of the Supreme Court, or that the respondent Judge gravely abused his
discretion tantamount to excess of jurisdiction, in issuing the disputed orders.

For a valid search warrant to issue, there must be probable cause, which is to be
determined personally by the judge, after examination under oath or affirmation
of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized. 12 The
probable cause must be in connection with one specific offense 13 and the judge must, before issuing the
warrant, personally examine in the form of searching questions and answers, in writing and under oath,
the complainant and any witness he may produce, on facts personally known to them and attach to the
record their sworn statements together with any affidavits submitted. 14

The "probable cause" for a valid search warrant, has been defined "as such facts
and circumstances which would lead a reasonably discreet arid prudent man to
believe that an offense has been committed, and that objects sought in
connection with the offense are in the place sought to be searched." 15 This probable
cause must be shown to be within the personal knowledge of the complainant or the witnesses he may
produce and not based on mere hearsay. 16

Petitioner assails the validity of Search Warrant No. 87-14 on the ground that it
was issued on the basis of facts and circumstances which were not within the
personal knowledge of the applicant and his witness but based on hearsay
evidence. In his application for search warrant, P/Major Alladin Dimagmaliw
stated that "he has been informed" that Nemesio Prudente "has in his control and
possession" the firearms and explosives described therein, and that he "has
verified the report and found it to be a fact." On the other hand, in his supporting
deposition, P/Lt. Florenio C. Angeles declared that, as a result of their continuous
surveillance for several days, they "gathered informations from verified sources"
that the holders of the said fire arms and explosives are not licensed to possess
them. In other words, the applicant and his witness had no personal
knowledge of the facts and circumstances which became the basis for issuing
the questioned search warrant, but acquired knowledge thereof only through
information from other sources or persons.

While it is true that in his application for search warrant, applicant P/Major
Dimagmaliw stated that he verified the information he had earlier received that
petitioner had in his possession and custody the t there is nothing in the record to
show or indicate how and when said applicant verified the earlier information
acquired by him as to justify his conclusion that he found such information to be a
fact. He might have clarified this point if there had been searching questions and
answers, but there were none. In fact, the records yield no questions and
answers, whether searching or not, vis-a-vis the said applicant.

What the records show is the deposition of witness, P/Lt. Angeles, as the only
support to P/Major Dimagmaliw's application, and the said deposition is based on
hearsay. For, it avers that they (presumably, the police authorities) had
conducted continuous surveillance for several days of the suspected premises
and, as a result thereof, they "gathered information from verified sources" that
the holders of the subject firearms and explosives are not licensed to possess
them.

In Alvarez vs. Court of First Instance, 17 this Court laid the following test in determining
whether the allegations in an application for search warrant or in a supporting deposition, are based on
personal knowledge or not
 The true test of sufficiency of a deposition or affidavit to warrant
issuance of a search warrant is whether it has been drawn in a
manner that perjury could be charged thereon and the affiant be
held liable for damage caused. The oath required must refer to the
truth of the facts within the personal knowledge of the applicant for
search warrant, and/or his witnesses, not of the facts merely
reported by a person whom one considers to be reliable.

Tested by the above standard, the allegations of the witness, P/Lt. Angeles, in
his deposition, do not come up to the level of facts of his personal knowledge so
much so that he cannot be held liable for perjury for such allegations in causing
the issuance of the questioned search warrant.

In the same Alvarez case, 18 the applicant stated that his purpose for applying for a search
warrant was that: "It had been reported to me by a person whom I consider to be reliable that there are
being kept in said premises books, documents, receipts, lists, chits and other papers used by him in
connection with his activities as a money lender, challenging usurious rate of interests, in violation of law."
The Court held that this was insufficient for the purpose of issuing a search warrant.

In People vs. Sy Juco, 19 where the affidavit contained an allegation that there had been a report to
the affiant by a person whom lie considered reliable that in said premises were "fraudulent books,
correspondence and records," this was likewise held as not sufficient for the purpose of issuing a search
warrant. Evidently, the allegations contained in the application of P/ Major Alladin Dimagmaliw and the
declaration of P/Lt. Florenio C. Angeles in his deposition were insufficient basis for the issuance of a valid
search warrant. As held in the Alvarez case:

The oath required must refer to the truth of the facts within the
personal knowledge of the petitioner or his witnesses, because the
purpose thereof is to convince the committing magistrate, not the
individual making the affidavit and seeking the issuance of the
warrant, of the existence of probable cause.

Besides, respondent Judge did not take the deposition of the applicant as
required by the Rules of Court. As held in Roan v. Gonzales, 20 "(m)ere affidavits of the
complainant and his witnesses are thus not sufficient. The examining Judge has to take depositions in
writing of the complainant and the witnesses he may produce and attach them to the record."

Moreover, a perusal of the deposition of P/Lt. Florenio Angeles shows that it was
too brief and short. Respondent Judge did not examine him "in the form of
searching questions and answers." On the contrary, the questions asked were
leading as they called for a simple "yes" or "no" answer. As held in Quintero vs.
NBI," 21 the questions propounded by respondent Executive Judge to the applicant's witness are not
sufficiently searching to establish probable cause. Asking of leading questions to the deponent in an
application for search warrant, and conducting of examination in a general manner, would not satisfy the
requirements for issuance of a valid search warrant."

Manifestly, in the case at bar, the evidence failed to show the existence of
probable cause to justify the issuance of the search warrant. The Court also
notes post facto that the search in question yielded, no armalites, handguns,
pistols, assorted weapons or ammunitions as stated in the application for search
warrant, the supporting deposition, and the search warrant the supporting hand
grenades were itself Only three (3) live fragmentation found in the searched
premises of the PUP, according to the affidavit of an alleged member of the
searching party.

The Court avails of this decision to reiterate the strict requirements for
determination of "probable cause" in the valid issuance of a search warrant, as
enunciated in earlier cases. True, these requirements are stringent but the
purpose is to assure that the constitutional right of the individual against
unreasonable search and seizure shall remain both meaningful and effective.

Petitioner also assails the validity of the search warrant on the ground that it
failed to particularly describe the place to be searched, contending that there
were several rooms at the ground floor and the second floor of the PUP.

The rule is, that a description of a place to be searched is sufficient if the officer
with the warrant can, with reasonable effort, ascertain and Identify the place
intended . 22 In the case at bar, the application for search warrant and the search warrant itself
described the place to be searched as the premises of the Polytechnic University of the Philippines,
located at Anonas St., Sta. Mesa, Sampaloc, Manila more particularly, the offices of the Department of
Military Science and Tactics at the ground floor, and the Office of the President, Dr. Nemesio Prudente, at
PUP, Second Floor and other rooms at the second floor. The designation of the places to be searched
sufficiently complied with the constitutional injunction that a search warrant must particularly describe the
place to be searched, even if there were several rooms at the ground floor and second floor of the PUP.

Petitioner next attacks the validity of the questioned warrant, on the ground that it
was issued in violation of the rule that a search warrant can be issued only in
connection with one specific offense. The search warrant issued by respondent
judge, according to petitioner, was issued without any reference to any particular
provision of PD No. 1866 that was violated when allegedly P.D. No. 1866
punishes several offenses.

In Stonehill vs. Diokno, 23 Where the warrants involved were issued upon applications stating that
the natural and juridical persons therein named had committed a "violation of Central Bank Laws, Tariff
and Customs Laws, Internal Revenue Code and Revised Penal Code," the Court held that no specific
offense had been alleged in the applications for a search warrant, and that it would be a legal hearsay of
the highest order to convict anybody of a "Violation of Central Bank Laws, Tariff and Customs Laws,
Internal Revenue Code and Revised Penal Code" without reference to any determinate provision of said
laws and codes.

In the present case, however, the application for search warrant was captioned:
"For Violation of PD No. 1866 (Illegal Possession of Firearms, etc.) While the
said decree punishes several offenses, the alleged violation in this case was,
qualified by the phrase "illegal possession of firearms, etc." As explained by
respondent Judge, the term "etc." referred to ammunitions and explosives. In
other words, the search warrant was issued for the specific offense of illegal
possession of firearms and explosives. Hence, the failure of the search warrant
to mention the particular provision of PD No. 1-866 that was violated is not of
such a gravity as to call for its invalidation on this score. Besides, while illegal
possession of firearms is penalized under Section 1 of PD No. 1866 and illegal
possession of explosives is penalized under Section 3 thereof, it cannot be
overlooked that said decree is a codification of the various laws on illegal
possession of firearms, ammunitions and explosives; such illegal possession of
items destructive of life and property are related offenses or belong to the same
species, as to be subsumed within the category of illegal possession of firearms,
etc. under P.D. No. 1866. As observed by respondent Judge: 24

The grammatical syntax of the phraseology comparative with the title

of PD 1866 can only mean that illegal possession of firearms,
ammunitions and explosives, have been codified under Section 1 of
said Presidential Decree so much so that the second and third are
forthrightly species of illegal possession of firearms under Section
(1) thereof It has long been a practice in the investigative and
prosecution arm of the government, to designate the crime of illegal
possession of firearms, ammunitions and explosives as 'illegal
possession of firearms, etc.' The Constitution as well as the Rules of
Criminal Procedure does not recognize the issuance of one search
warrant for illegal possession of firearms, one warrant for illegal
possession of ammunitions, and another for illegal possession of
explosives. Neither is the filing of three different informations for
each of the above offenses sanctioned by the Rules of Court. The
usual practice adopted by the courts is to file a single information for
illegal possession of firearms and ammunitions. This practice is
considered to be in accordance with Section 13, Rule 110 of the
1985 Rules on Criminal Procedure which provides that: 'A complaint
or information must charge but one offense, except only in those
cases in which existing laws prescribe a single punishment for
various offenses. Describably, the servers did not search for articles
other than firearms, ammunitions and explosives. The issuance of
Search Warrant No. 87-14 is deemed profoundly consistent with said
rule and is therefore valid and enforceable. (Emphasis supplied)

Finally, in connection with the petitioner's contention that the failure of the
applicant to state, under oath, the urgent need for the issuance of the search
warrant, his application having been filed on a Saturday, rendered the questioned
warrant invalid for being violative of this Court's Circular No. 19, dated 14 August
1987, which reads:

3. Applications filed after office hours, during Saturdays, Sundays

and holidays shall likewise be taken cognizance of and acted upon
by any judge of the court having jurisdiction of the place to be
searched, but in such cases the applicant shall certify and state the
 facts under oath, to the satisfaction of the judge, that the issuance is
urgent.

it would suffice to state that the above section of the circular merely provides for
a guideline, departure from which would not necessarily affect the validity of an
otherwise valid search warrant.

WHEREFORE, all the foregoing considered, the petition is GRANTED. The

questioned orders dated 9 March 1988 and 20 April 1988 as well as Search
Warrant No. 87-14 are hereby ANNULLED and SET ASIDE.

The three (3) live fragmentation hand grenades which, according to Ricardo Y.
Abando, a member of the searching team, were seized in the washroom of
petitioner's office at the PUP, are ordered delivered to the Chief, Philippine
Constabulary for proper disposition.

SO ORDERED.
G.R. No. 134279 March 8, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RICKY ROGER AUSTRIA y SACATANE, defendant-appellant.

KAPUNAN, J.:

Accused-appellant Ricky Roger Austria was charged before the Regional Trial
Court (RTC) of Manila with Murder in an information reading:

That on or about June 21, 1995, in the City of Manila, Philippines, the said
accused, did then and there wilfully, unlawfully and feloniously, with intent
to kill, with treachery and evident premeditation, attack, assault and use
personal violence upon one AGUSTIN ABAD y ARAGUEZ, by then and
there stabbing him on the chest, thereby inflicting upon him serious stab
wounds which are necessarily fatal and mortal and which were the direct
and immediate cause of his death thereafter.

Contrary to law.1

Arraigned on August 9, 1995, accused-appellant pleaded not guilty to the above

charges. Trial ensued thereafter.

The prosecution presented as its only eyewitness thirteen-year old Rowena

Junio.

On June 21, 1995, at around 10:00 in the evening, in Bagong Barangay, Zamora,
Pandacan, Manila, Rowena went to a store in the plaza to buy ice. Failing to buy
any, Rowena started walking back home. On the way, she saw three (3) men
accost another man, who they took to a narra tree. Rowena heard one of the
three men instruct the man brought to the narra tree to bring out something.
Suddenly, accused-appellant hit the man with a piece of wood and
simultaneously stabbed him. A lamppost lighting the area enabled Rowena to
see accused-appellant's face when the latter looked to see if anyone else was
around.2

SPO2 Rodolfo Rival of the Homicide Division of the Western Police District
Command (WPDC), Manila, conducted an investigation of the incident. SPO2
Rival testified that at around 10:45 in the evening of June 21, 1995, SPO2 Danilo
Caballero of the Pandacan Police Station reported the presence of a dead male
person at Bagong Barangay, Zamora, Pandacan, Manila. SPO2 Rival examined
the crime scene where he found the victim's remains lying on its back at the
grassy portion of the sidewalk beside the estero. The body had a lone stab
wound on the mid-chest and a deep-cut wound on the face. There were also
splotches of blood on the ground at the first gate of Bagong Barangay.
SPO2 Rival interviewed several persons regarding the incident but none of them
gave any "good information." On June 22, 1995, however, Rowena Junio went to
the station and gave her statement identifying accused-appellant as the one who
stabbed the victim.3

Dr. Manuel Lagonera, medico-legal officer of the Western Police District,

conducted an autopsy on the body of the victim. Dr. Lagonera testified that the
victim, who was identified as Agustin Abad,4 sustained one penetrating stab
wound located at the right anterior thorax, and that the proximate cause of death
was shock secondary to stab wounds. The depth of the stab wound was 12
centimeters, piercing the heart of the victim. From the nature of the wound, he
concluded that the weapon used by the assailant was consistent with a sharp-
pointed, sharp-edged instrument, and that the assailant could have been fronting
the victim. Death was immediate.5 Dr. Lagonera's findings are contained in his
Autopsy Report.6

Accused-appellant, 26, married, and a resident of 1901 Interior 60, Zamora

Street, Pandacan, Manila, denied killing Agustin Abad. He claimed that at the
time of the incident on June 21, 1995, he was at his house with his parents and
sons trying to put his six-month old child to sleep. He said Agustin was his
neighbor who lived a block away from their house. Accused-appellant had known
Agustin since childhood and saw him frequently.

He alleged that he learned of the stabbing incident that same night at around
10:00 p.m. Somebody near accused-appellant's house shouted that Agustin had
been stabbed. Accused-appellant went to the scene where he saw the victim
wounded but still alive. He did not recognize the victim as Agustin since the
latter's face was too bloodied. He stayed at the scene for about five (5) minutes.
A certain Roberto, a neighbor and an agent of the National Bureau of
Investigation, was also there and took the victim's wallet. Accused-appellant
learned from his sister that Agustin was the victim only when he was in the police
station.7

On April 28, 1998, the trial court rendered a decision convicting accused-
appellant of Murder and sentencing him to suffer the penalty of reclusion
perpetua, thus:

WHEREFORE, this Court finds the accused Ricky Roger Autria y

Sacatane (sic), guilty beyond reasonable doubt of the crime of murder and
is sentenced to suffer the penalty of reclusion perpetua with all the
accessory penalties provided by law, and to pay the costs. Moreover, the
accused is ordered to pay actual, moral and nominal damages in the sums
of P13,000.00, P50,000.00 and P25,000.00 respectively, and an additional
sum of P50,000.00 for the death of the victim, with interest thereon at the
legal rate from the date of the filing of this case, July 3, 1995, until fully
paid.
 SO ORDERED.8

Accused-appellant now appeals his conviction, and the Court grants him acquittal
on the ground of reasonable doubt.

Accused-appellant has pointed to inconsistencies in the testimony of the alleged

eyewitness, Rowena Junio, regarding her acquaintance with accused-appellant
that cast doubt on accused-appellant's guilt.

First, Rowena stated that she saw accused-appellant for the first time only during
the stabbing incident.

COURT: By the way, the accused was not the first time you met [sic],
when you saw him during the stabbing incident?

A: That was my [sic] first time I saw him.9

The Court also notes that the witness repeated this declaration when asked how
long she has known accused-appellant. She replied that she had only met him on
that tragic occasion:

Q: How long have you known Ricky?

A: I only met him on that occasion, when I saw his face.

Q: Now, Madam Witness, you said that you know him only when you
saw his face, is that correct?

A: Yes, Sir.

Q: In sort, [sic] you have not known him for a long time, is that correct
Madam Witness?

A: Yes, Sir.10

However, when confronted with the Affidavit11 she executed the day after the
incident, Rowena contradicted herself and claimed she had known accused-
appellant for a long time.

Q: I want to invite your attention to the affidavit that you executed,

paragraph 11 and tell me if that is the statement that you made?

COURT: Read it.

A: (Witness reading the statement, pp 11)

" Ito bang si Ricky ay matagal mo nang kilala?
 COURT: Read the answer.

A: "Sa mukha po ay matagal ko na siyang kilala"

ATTY. ASKALI: So, "matagal mo nang kilala". So, it is not

COURT: Wait, wait, what did you mean by that, when you said "Matagal
mo na siyang kilala sa mukha"?

A: Because he is from that place and I used to see him.

COURT: When you saw the face of the accused in the evening of June
21, 1995, during the stabbing indident [sic], that was not the first time you
saw him?

A: Yes, your honor.12

Rowena was also inconsistent concerning her residence. When asked to state
her personal circumstances, she said that she was residing at 1953 Zamora,
Pandacan, Manila.13 She also testified that she was born there and had been
staying there since childhood.

Q: How long have you been living with [sic] this address, Mr. [sic]
Witness, 1953 [Zamora Street, Pandacan, Manila].

A: I was born in that place.

Q: So from childhood you have been staying at 1953 Zamora Street,

Pandacan, Manila. Is that correct?

A: Yes, sir.14

However, in other parts of her testimony, she said that she was not from the area
but was merely visiting, and that she did not know anyone there.

Q: How long have you been residing in the said area, in that place in
Pandacan, Manila?

A: I only visited the place, Ma'm [sic].15

x x x

ATTY. ASKALI: Madam Witness, you said that you are not living
permanently in that place at Pandacan, you only visited the place, is that
correct?
 A: Yes, Sir.

Q: Where do you live before you visited the place?

A: I only visited the place and there was also a wake.

Q: And when you said wake, who died Madam Witness?

A: The grandfather of the accused.

COURT: Who died, do you know?

A: I do not know, your honor. I merely accompanied my mother. It's

my mother who attend the deceased [sic].

Q: So you are very knew [sic] in that place you do not know anyone
there, is that correct?

A: Yes, Sir.16

The prosecution failed to clarify these inconsistencies in Rowena's testimony.

The Office of the Solicitor General submits, however, that Rowena Junio's
acquaintance with appellant is irrelevant considering that she personally
identified him to be the same person whose face appeared under the illumination
of the lamp right after the stabbing of the victim. If at all, any inconsistency in the
narration by the witness only bolsters her credibility since it would show that her
statements were unrehearsed and spontaneous.17

We disagree. The inconsistencies in Rowena Junio's testimony do not refer to

incidental or collateral matters. The basis of her identification of accused-
appellant as the victim's assailant was precisely her purported familiarity with
accused-appellant. She did not pick him out of a police line-up nor did she
provide the police with a description of the assailant. She pointed to accused-
appellant because she allegedly knew him prior to the killing. If the witness was
not at all familiar with accused-appellant, the prosecution's whole case collapses
for such familiarity was its very foundation.

In the face of doubts regarding the familiarity of the witness with the alleged
assailant, the distance of the witness from the scene and the visibility conditions
thereat assume greater significance. Rowena was purportedly some eight (8)
meters from the scene of the killing,18 which was illuminated by a flickering lamp.
She testified:

Q: What about in the place of the incident? Is it also well lighted,

Madam Witness?
 A: The light in the lamp post was flicking on and off because it was
defective.19

The prosecution did not show, however, whether the intensity of the defective
lamp was sufficient to enable the witness to see accused-appellant's face,
considering her distance from the scene.

Accused-appellant invoked alibi, which he failed to corroborate with other

evidence. Nevertheless, this circumstance would not sustain his conviction.

As a rule, alibis should be considered with suspicion and received with

caution, not only because they are inherently weak and unreliable, but also
because they can easily be fabricated. But equally fundamental is the
axiom that evidence for the prosecution must stand or fall on its own merits
and cannot be allowed to draw strength from the weakness of the defense.
A conviction in a criminal case must rest on nothing less than a moral
certainty of guilt. The prosecution cannot use the weakness of the defense
to enhance its cause. And, where the prosecution's evidence is weak or
just as equally tenuous, alibi need not be inquired into.20

The prosecution has also failed to establish any motive on the part of the
accused-appellant to kill the deceased. While generally, the motive of the
accused is immaterial and does not have to be proven, proof of the same
becomes relevant and essential when, as in this case, the identity of the
assailant is in question.21

We conclude with the following quote from People vs. Bautista:22

Considering the apparent unreliability of the evidence proffered by the

prosecution, this Court is constrained to rule for an acquittal. In all criminal
cases, all doubts should be resolved in favor of the accused on the
principle that it is better to liberate a guilty man than to unjustly keep in
prison one whose guilt has not been proven by the required quantum of
evidence. Conviction, it is said, must rest on nothing less than a moral
certainty of guilt that we find here to be wanting.

WHEREFORE, the decision of the Regional Trial Court of Manila is REVERSED.

Accused-appellant Ricky Roger Austria y Sacatane is hereby ACQUITTED on
the ground of reasonable doubt. The Director of Prisons is directed to forthwith
cause his release unless he is held for some other lawful cause and to inform the
Court accordingly within ten (10) days from notice.

SO ORDERED.