Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 117412 December 8, 2000
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
COURT OF PPELS !"# $LENTINO C. ORTI%, respondents.
D E C I S I O N
&UISUM'ING, J.:
This is a petition for review on certiorari uner Rule !" of the Rules of Court# see$in%
the reversal of the ecision of the Court of &ppeals pro'ul%ate on Septe'ber ()#
*++!# in C&,-.R. SP No. ./*(+*. The ecretal portion of the assaile ecision reas0
123ERE4ORE# the petition is -R&NTED. &ccorin%l5 the responent court6s Orer of
(" 7anuar5 *++. is hereb5 SET &SIDE an the firear's an a''unition irre%ularl5
an unreasonabl5 sei8e pursuant to the search warrant of *. &u%ust *++( are
eclare ina'issible in evience for an5 purpose in an5 proceein%# conse9uentl5 to
be ispose of b5 the responent court pursuant to applicable law.
1SO ORDERED.1
*
The facts of the present case# as aopte fro' the finin%s of the Office of the Solicitor
-eneral# are as follows0
On &u%ust *.# *++(# operatives of the Philippine National Police, Special Investi%ation
Service Co''an :PNP,CISC; were conuctin% a surveillance of suspecte ru%,
pushin% activities at the Re%ine Cono'iniu'# Ma$ati &venue# Ma$ati Cit5. &'on%
their tar%ete suspects was private responent Valentino 1Toto1 Orti8. Spottin% the
latter ali%htin% fro' his Chero$ee <eep an notin% that he ha a suspiciousl5 bul%in%
pants poc$et#
(
the police officers i''eiatel5 'ove in an accoste hi'. Orti8 was
fris$e an 5iele an unlicense .(" caliber 1Raven1 auto'atic pistol SN,+./(+* with
one 'a%a8ine an seven rouns of live .(" caliber a''unition. & search of his vehicle
resulte in the retrieval of a seale cellophane pac$et of 'eth5la'pheta'ine
h5rrochlorie or 1shabu1 fro' the %love co'part'ent. The police then too$ private
responent into custo5.
=ater that sa'e a5# the PNP,CISC applie for a search warrant a%ainst private
responent for violation of P. D. *>??
.
with the Metropolitan Trial Court :MTC; of
Para@a9ue# Aranch )). Supportin% the application were the epositions of two police
officers assertin% that the5 ha personal $nowle%e that private responent was
$eepin% in his resience at *!>,D Peru Street# Aetter =ivin% Subivision# Para@a9ue#
Metro Manila# the followin% unlicense firear's0 1Aab5 ar'alite M,*?B
!
Shot%un# *( %B
pistol cal. +''B pistol cal. !" an with corresponin% a''unitions :sic;1
"
On the sa'e a5# the MTC <u%e issue Search 2arrant No. +(,+! co''anin% the
PNP officers 1to 'a$e an i''eiate search at an5 reasonable hour of the a5 or ni%ht
of the houseCs# close receptacles an pre'ises above,escribe an forthwith sei8e
an ta$e possession1
?
the personal propert5 sub<ect of the offense escribe in the
warrant.
&r'e with aforesai warrant# a PNP CISC,Special Investi%ation -roup :SI-; tea'#
acco'panie b5 a representative of the MTC <u%e an a baran%a5 securit5 officer#
went to private responent6s resience in Para@a9ue at about )0./ P.M. of the sa'e
ate to search sai pre'ises. Private responent6s wife an their chil6s nann5 were
both present urin% the search# but neither consente to be a witness to the search.
The search resulte in the sei8ure of the followin% unlicense firear's an
a''unition0
1a. One :*; pistol cal. +'' SN,*+(>+(.
b. One :*; M*? Rifle :Aab5 &r'alite; SN,+/*"?(/
c. One :*; *( %au%e shot%un SN,D"+.!!+
. SiE :?; live a''o. for shot%un.
e. One hunre ei%hteen :**>; live a''o for pistol cal. +''
f. SiEteen :*?; live a''o. for M*? rifle
%. Thirt5 :./; live a''o. for pistol cal. !"
h. One :*; 'a%a8ine for pistol cal. +''
i. One :*; 'a%a8ine :short; for M*? rifle.1
)
Private responent6s wife si%ne a receipt for the sei8e firear's an a''unition.
On &u%ust *)# *++(# a return of search warrant was eEecute an file b5 the police
with the issuin% court.
&t the preli'inar5 investi%ation# the investi%atin% state prosecutor rule the warrantless
search of private responent6s person an <eep in Ma$ati invali for violatin% his
1
constitutional ri%ht a%ainst unreasonable searches an sei8ures.
>
3owever# the
prosecutor foun the search conucte in Para@a9ue vali.
On &u%ust ("# *++(# private responent was char%e before the Re%ional Trial Court
of Ma$ati# in Cri'inal Case No.+(,"!)"# with violatin% Section * of P.D. No. *>??. The
infor'ation alle%e0
1That on or about &u%ust *.# *++( in the Municipalit5 of Para@a9ue# Metro Manila#
Philippines an within the <urisiction of this 3onorable Court# above,na'e accuse#
i then an there# wilfull5 :sic;# unlawfull5 an feloniousl5 have in his possession#
a. One :*; pistol cal. +'' SN,*+(>+(.
b. One :*; M*? Rifle :Aab5 &r'alite; SN,+/*"?(/
c. One :*; *( %au%e shot%un SN,D"+.!!+
. SiE :?; live a''o. for shot%un.
e. One hunre ei%hteen :**>; rs a''o for pistol cal. +''
f. SiEteen :*?; live a''os :sic;. for M*? rifle
%. Thirt5 :./; live a''o for pistol cal. !"
without lawful authorit5 therefore.
CONTR&RF TO =&2.1
+
On Septe'ber ("# *++(# private responent 'ove for reinvesti%ation alle%in% that the
is'issal of the char%es a%ainst hi' arisin% fro' the ille%al search an sei8ure in
Ma$ati also applie to the search conucte in his house in Para@a9ue. The trial court
enie the sa'e. Private responent 'ove for reconsieration an eferral of
arrai%n'ent# but sai 'otions were li$ewise enie.
On Nove'ber (.# *++(# private responent 'ove to 9uash the search warrant on the
followin% %rouns0 :*; that he was not present when his house was searche since he
was then etaine at Ca'p Cra'eB :(; that the search warrant was not shown to his
wifeB an :.; that the search was conucte in violation of the witness,to,search rule.
The trial court enie the 'otion to 9uash for lac$ of 'erit.
On 4ebruar5 "# *++.# private responent file with the Court of &ppeals# C&,-.R. SP
No. ./*(+# for certiorari an prohibition of the orer of the trial court en5in% his
'otion to 9uash search warrant.
On Septe'ber ()# *++!# the appellate court pro'ul%ate its ecision eclarin% as
ina'issible in evience the firear's an a''unition sei8e pursuant to Search
2arrant No. +(,+!.
3ence# the instant case anchore on the followin% assi%n'ents of error0
I
T3E RESPONDENT COGRT O4 &PPE&=S ERRED IN 3O=DIN- T3&T
EHECGTION O4 T3E SE&RC3 2&RR&NT &T )0./ P.M. 2&S
GNRE&SON&A=E# DESPITE T3E 4&CT T3&T T3E 2&RR&NT ITSE=4
&GT3ORIIED SE&RC3 &T NI-3T.
II
T3E RESPONDENT COGRT O4 &PPE&=S ERRED IN 3O=DIN- T3&T T3E
IMP=EMENT&TION O4 T3E SE&RC3 2&RR&NT VIO=&TED SECTION )
RG=E *(? O4 T3E RG=ES O4 CRIMIN&= PROCEDGRE.
III
T3E RESPONDENT COGRT O4 &PPE&=S ERRED IN 3O=DIN- T3&T NO
RETGRN 2&S PREP&RED 23EN &NNEH 1-1 2&S PREP&RED &ND
SGAMITTED AF C3IE4 INSP. 7ESGS &. VERSOI&# -ROGP COMM&NDER
O4 SI-# CISC# C&MP CR&ME.
IV
T3E RESPONDENT COGRT O4 &PPE&=S ERRED IN CONC=GDIN- T3&T
T3E PROSECGTION INVODED & PRESGMPTION 2IT3OGT S3O2IN-
AF =E-&==F &DMISSIA=E EVIDENCE T3&T T3E SE&RC3 2&RR&NT
2&S IMP=EMENTED IN &CCORD&NCE 2IT3 =&2.
Petitioner6s %rouns for this petition 'a5 be reuce to one issue0 2hether or not the
court a quo erre in holin% that the firear's an a''unition sei8e fro' private
responent6s house are ina'issible as evience for bein% the fruits of an ille%al
search.
The appellate court rule the search wantin% in ue process for havin% been one at
an unreasonable ti'e of the evenin% causin% 1inconvenience1 to the occupants of
private responent6s house# especiall5 as there was no showin% how lon% the
ni%htti'e search laste. The court a quo applie the octrine in Asian Surety &
Insurance Co. v. Herrera, 54 SCRA 312 (1!3", where we invaliate a ni%htti'e
search conucte on the basis of a warrant which i not specif5 the ti'e urin% which
the search was to be 'ae.
2
Aefore us# petitioner contens that Asian Surety is inapplicable since the search
warrant specifie that the search be 'ae at a reasonable hour of a5 or ni%ht.
The rule %overnin% the ti'e of service of search warrants is Section > of Rule *(? of
the Rules of Court# which provies0
1Sec. >. #i$e o% $a&in' searc(. J The warrant 'ust irect that it be serve in the a5
ti'e# unless the affiavit asserts that the propert5 is on the person or in the place
orere to be searche# in which case a irection 'a5 be inserte that it be serve at
an5 ti'e of the a5 or ni%ht.1
The %eneral rule is that search warrants 'ust be serve urin% the a5ti'e. 3owever#
the rule allows an eEception# na'el5# a search at an5 reasonable hour of the a5 or
ni%ht# when the application asserts that the propert5 is on the person or place orere
to be searche. In the instant case# the <u%e issuin% the warrant relie on the positive
assertion of the applicant an his witnesses that the firear's an a''unition were
$ept at private responent6s resience. Evientl5# the court issuin% the warrant was
satisfie that the affiavits of the applicants clearl5 satisfie the re9uire'ents of
Section ># Rule *(? of the Rules of Court. The rule on issuance of a search warrant
allows for the eEercise of <uicial iscretion in fiEin% the ti'e within which the warrant
'a5 be serve# sub<ect to the statutor5 re9uire'ent
*/
fiEin% the 'aEi'u' ti'e for the
eEecution of a warrant.
**
2e have eEa'ine the application for search warrant#
*(
an
the eposition of the witnesses supportin% sai application#
*.
an fin that both
satisfactoril5 co'pl5 with the re9uire'ents of Section ># Rule *(?. The inescapable
conclusion is that the <u%e who issue the 9uestione warrant i not abuse his
iscretion in allowin% a search 1at an5 reasonable hour of the a5 or ni%ht.1 &bsent
such abuse of iscretion# a search conucte at ni%ht where so allowe# is not
i'proper.
*!
&s prescribe in &'. Circular No. *. of the Supre'e Court ate October *# *+>"0
1e. Search warrants 'ust be in uplicate# both si%ne b5 the <u%e. The uplicate cop5
thereof 'ust be %iven to the person a%ainst who' the warrant is issue an serve.
Aoth copies of the warrant 'ust inicate the ate until when the warrant shall be vali
an 'ust irect that it be serve in the a5ti'e. If the <u%e is satisfie that the
propert5 is in the person or in the place orere to be searche# a irection 'a5 be
inserte in the warrants that it be serve at an5 ti'e of the a5 or ni%htB1
Aut was the ti'e urin% which the search was effecte 1reasonableK1
Petitioner sub'its that )0./ P.M. is a reasonable ti'e for eEecutin% a search warrant in
the 'etropolis. 2e fin no reason to eclare the contrar5. The eEact ti'e of the
eEecution of a warrant shoul be left to the iscretion of the law enforce'ent officers.
*"

&n in <u%in% the conuct of sai officers# <uicial notice 'a5 be ta$en not <ust of the
realities of law enforce'ent# but also the prevailin% conitions in the place to be
searche. 2e ta$e <uicial notice that )0./ P.M. in a suburban subivision in Metro
Manila is an hour at which the resients are still up,an,about. To hol sai hour as an
unreasonable ti'e to serve a warrant woul not onl5 ha'per law enforce'ent# but
coul also lea to absur results# enablin% cri'inals to conceal their ille%al activities b5
pursuin% such activities onl5 at ni%ht.
*?
The polic5 behin the prohibition of ni%htti'e searches in the absence of specific
<uicial authori8ation is to protect the public fro' the abrasiveness of official
intrusions.
*)
& ni%htti'e search is a serious violation of privac5.
*>
In the instant case#
there is no showin% that the search which be%an at )0./ P.M. cause an 1abrupt
intrusion upon sleepin% resients in the ar$1
*+
or that it cause private responent6s
fa'il5 such pre<uice as to 'a$e the eEecution of the warrant a voiable act. In finin%
that the uration of the search coul have cause 1inconvenience1 for private
responent6s fa'il5# the appellate court resorte to sur'ises an con<ectures.
Moreover# no eEact ti'e li'it can be place on the uration of a search.
(/
Aut was the witness,to,search rule violate b5 the police officers who conucte the
search notwithstanin% the absence of private responent an espite the refusal of
the 'e'bers of his househol to act as witnesses to the searchK
The witness,to,search rule is e'boie in Section ) of Rule *(?# which reas0
1Sec. ). Searc( o% (ouse, roo$, or pre$ise, to )e $ade in presence o% t*o *itnesses.
J No search of a house# roo'# or an5 other pre'ise shall be 'ae eEcept in the
presence of the lawful occupant thereof or an5 'e'ber of his fa'il5 or in the absence
of the latter# in the presence of two witnesses of sufficient a%e an iscretion resiin%
in the sa'e localit5.1
Petitioner sub'its that there was no violation of the afore'entione rule since the
searchers were <ustifie in availin% of two witnesses of sufficient a%e an iscretion#
after responent6s wife an 'ai refuse. The re%ularit5 of the search is best
evience b5 the 1Certification of Orerl5 Search1 an the receipt of the propert5
sei8e si%ne b5 responent6s wife.
2e fin 'erit in the petitioner6s ar%u'ent that private responent6s wife ha no
<ustifiable reason to refuse to be a witness to the search an that her refusal to be a
witness cannot ha'per the perfor'ance of official ut5. In the absence of the lawful
occupant of the pre'ises or an5 'e'ber of his fa'il5# the witness,to,search rule
allows the search to be 'ae 1in the presence of two witnesses of sufficient a%e an
iscretion resiin% in the sa'e localit5.1 There was no irre%ularit5 when the PNP,CISC
tea' as$e the bailiff of the Para@a9ue court an the baran%a5 securit5 officer to act
as witnesses to the search. To hol otherwise woul allow lawful searches to be
frustrate b5 the 'ere refusal of those re9uire b5 law to be witnesses.
In our view# the conuct of the ni%htti'e search was reasonable uner the
circu'stances in this case.1+*p(i1 The unlicense firear's an a''unition ta$en
fro' private responent6s resience pursuant to Search 2arrant No. +(,+!# are
a'issible in evience a%ainst private responent.
3
(HEREFORE# the petition is -R&NTED. The assaile ecision ate Septe'ber (!#
*++! of the Court of &ppeals in C&,-.R. No. SP ./*(+ is REVERSED an
NG==I4IED. The firear's an a''unition sei8e fro' the resience of the Valentino
C. Orti8# pursuant to the search warrant issue b5 the Metropolitan Trial Court of
Para@a9ue# ate &u%ust *.# *++(# shall be a'issible as evience in proceein%s
institute b5 the State.
SO ORDERED.
4