SYLLABUS

SARMIENTO, J., dissenting:

1. CONSTITUTIONAL LAW; CONSTITUTION; BEDROCK OF THE
REGIME OF LAW AND CONSTITUTIONALISM. The Charter says
that the people enjoy the right of security of person, home,
and effects. (CONST.,art. III, sec. 2.) It is also the bedrock
the right of the people to be left alone on which the
regime of law and constitutionalism rest. It is not, as the
majority would put it, a matter of "occasional
inconveniences, discomfort and even irritation." (Resolution,
4.) To say that it is, is so I submit to trivialize the plain
command of the Constitution.
2. ID.; SEARCH AND SEIZURE; BURDEN OF PROVING
REASONABLENESS INCUMBENT UPON THE STATE. While the
right against unreasonable searches and seizures, as my
brethren advance, is a right personal to the aggrieved party,
the petitioners, precisely, have come to Court because they
had been, or had felt, aggrieved. I submit that in that event,
the burden is the State's, to demonstrate the reasonableness
of the search. The petitioners, Ricardo Valmonte in
particular, need not, therefore, have illustrated the "details
of the incident" (Resolution, supra, 4) in all their gore and
gruesomeness.
3. ID.; ID.; ABSENCE ALONE OF A SEARCH WARRANT MAKES
CHECKPOINT SEARCHES UNREASONABLE. The absence alone
of a search warrant, as I have averred, makes checkpoint
searches unreasonable, and by itself, subject to
constitutional challenges. (Supra.) As it is, "checkpoints",
have become "search warrants" unto themselves a roving
one at that.
4. ID.; ID.; CASE AT BAR NOT SIMPLY A POLICEMAN ON THE
BEAT. The American cases the majority refers to involve
routine checks compelled by "probable cause". What we have
here, however, is not simply a policeman on the beat but
armed men, CAFGU or Alsa Masa, who hold the power of life
or death over the citizenry, who fire with no provocation and
without batting an eyelash. They likewise shoot you simply
because they do not like your face.
||| (Valmonte v. De Villa, G.R. No. 83988, [September 29,
1989], 258 PHIL 838-848)
The checkpoints are nonetheless attacked by the movants as
a warrantless search and seizure and, therefore, violative
of the Constitution. 3
As already stated, vehicles are generally allowed to pass
these checkpoints after a routine inspection and a few
questions. If vehicles are stopped and extensively searched,
it is because of some probable cause which justifies a
reasonable belief of the men at the checkpoints that either
the motorist is a law-offender or the contents of the vehicle
are or have been instruments of some offense. Again, as held
by the U.S. Supreme Court
"Automobiles, because of their mobility, may be searched
without a warrant upon facts not justifying a warrantless
search of a residence or office. Brinegar v. United States, 338
US 160, 93 L Ed 1879, 69 S Ct 1302(1949); Carroll v. United
States, 267 US 132, 69 L Ed 543, 45 S Ct 280, 39 ALR 790
(1925). The cases so holding have, however, always insisted
that the officers conducting the search have 'reasonable or
probable cause' to believe that they will find the
instrumentality of a crime or evidence pertaining to a crime
before they begin their warrantless search. . . ." 4
Besides these warrantless searches and seizures at the
checkpoints are quite similar to searches and seizures
accompanying warrantless arrests during the commission of a
crime, or immediately thereafter. In People vs. Kagui
Malasuqui, it was held
"To hold that no criminal can, in any case, be arrested and
searched for the evidence and tokens of his crime without a
warrant, would be to leave society, to a large extent, at the
mercy of the shrewdest, the most expert, and the most
depraved of criminals, facilitating their escape in many
instances." 5
By the same token, a warrantless search of incoming and
outgoing passengers, at the arrival and departure areas of an
international airport, is a practice not constitutionally
objectionable because it is founded on public interest,
safety, and necessity.
Lastly, the Court's decision on checkpoints does not, in any
way, validate nor condone abuses committed by the military
manning the checkpoints. The Court's decision was concerned
with power, i.e. whether the government employing the
military has the power to install said checkpoints. Once that
power is acknowledged, the Court's inquiry ceases. True,
power implies the possibility of its abuse. But whether there
is abuse in a particular situation is a different "ball game" to
be resolved in the constitutional arena.
The Court, like all other concerned members of the
community, has become aware of how some checkpoints have
been used as points of thievery and extortion practiced upon
innocent civilians. Even the increased prices of foodstuffs
coming from the provinces, entering the Metro Manila area
and other urban centers, are largely blamed on the
checkpoints, because the men manning them have reportedly
become "experts" in mulcting travelling traders. This, of
course, is a national tragedy. llcd
But the Court could not a priori regard in its now assailed
decision that the men in uniform are rascals or thieves. The
Court had to assume that the men in uniform live and act by
the code of honor and they are assigned to the checkpoints
to protect, and not to abuse, the citizenry. 6 The checkpoint
is a military "concoction." It behooves the military to improve
the QUALITY of their men assigned to these checkpoints. For
no system or institution will succeed unless the men behind it
are honest, noble and dedicated.
In any situation, where abuse marks the operation of a
checkpoint, the citizen is not helpless. For the military is not
above but subject to the law. And the courts exist to see that
the law is supreme. Soldiers, including those who man
checkpoints, who abuse their authority act beyond the scope
of their authority and are, therefore, liable criminally and
civilly for their abusive acts. 7 This tenet should be ingrained
in the soldiery in the clearest of terms by higher military
authorities.
||| (Valmonte v. De Villa, G.R. No. 83988, [May 24, 1990],
264 PHIL 265-276)
1. CONSTITUTIONAL LAW; SATURATION DRIVE; CONSIDERED
UNLAWFUL IN CASE AT BAR. The facts that on twelve
occasions between March and November, 1987 the military
conducted the saturation drives in question is a fact open to
no question. The Solicitor General admits that they, the
saturation drives, had been done, except that they had been
done "with due regard to human rights." "Not only that," so he
states: . . . they were intelligently and carefully planned
months ahead of the actual operation. They were executed
in coordination with barangay officials who pleaded with
their constituents to submit themselves voluntarily for
character and personal verification. Local and foreign
correspondents, who had joined these operations, witnessed,
and reported the events that transpired relative thereto.
(After Operation Reports: November 5, 1987, Annex 12;
November 20, 1987, Annex 13; November 24, 1987, Annex
14). That is why in all the drives so far conducted, the
alleged victims who numbered thousands had not themselves
complained. The question, then, is purely one of law: Are the
saturation drives in question lawful and legitimate? It is also
a question that is nothing novel: No, because the arrests
were not accompanied by a judicial warrant. Therefore, the
fact that they had been carefully planned, executed in
coordination with Tondo's barangay officials, and undertaken
with due courtesy and politeness (which I doubt), will not
validate them. The lack of a warrant makes them, per
se, illegal. I find allusions to the last aborted coup
d'etat inapt. In that case, our men in uniform had all the
right to act amidst crimes being committed in flagrante. The
instant case is quite different. There are no offenses being
committed, but rather, police officers fishing for evidence of
offenses that may have been committed. As I said, in that
event, a court warrant is indispensable.
2. ID.; ID.; "SHOW OF FORCE" IN THE ABSENCE OF JUDICIAL
WARRANT; CONSIDERED A VIOLATION OF HUMAN RIGHT.
According to the majority, "the remedy is not to stop all
police actions, including the essential and
legitimate ones . . . [w]e see nothing wrong in police making
their presence visibly felt in troubled areas . . . " But the
petitioners have not come to court to "stop all police actions"
but rather, the saturation drives, which are, undoubtedly,
beyond police power. That "[a] show of force is sometimes
necessary as long as the rights of people are protected and
not violated" is a contradiction in terms. A "show of force" (by
way of saturation drives) is a violation of human rights
because it is not covered by a judicial warrant. In all candor,
I can not swallow what I find is a complete exaggeration of
the issues: . . . A show of force is sometimes necessary as
long as the rights of people are protected and not violated. A
blanket prohibition such as that sought by the petitioners
would limit all police actions to one on one confrontations
where search warrants and warrants of arrests against
specific individuals are easily procured. Anarchy may reign if
the military and the police decide to sit down in their offices
because all concerted drives where a show of force is present
are totally prohibited. As a general rule, a peace officer can
not act unless he is possessed of the proper arrest or search
warrant. The exception is when a criminal offense is
unfolding before him, in which case, action is justified and
necessary. The majority would have the exception to be
simply, the general rule.
3. ID.; ID.; ID.; FALLS WITHIN THE JURISDICTION OF SUPREME
COURT. That "the problem is not initially for the Supreme
Court" is to me, an abdication of judicial duty. As I indicated,
the controversy is purely one of law the facts being
undisputed. Law, needless to say, is the problem of the
Supreme Court, not the Executive. Worse, it is passing the
buck. The petitioners, precisely, have a grievance to raise,
arising from abuses they pinpoint to the lower offices of the
Executive (which presumably has its imprimatur). To make it
an executive problem, so I hold, is to make the Executive
judge and jury of its own acts, and hardly, a neutral arbiter. I
am also taken aback by references to "[w]ell meaning
citizens with only second hand knowledge of the events . . .
keep[ing] on indiscriminately tossing problems of the
Executive, the military, and the police to the Supreme Court
as if we are the repository of all remedies for all evils." First,
the facts are not "second-hand", they are undisputed: There
had been saturation drives. Second, the petitioners have
trooped to the highest court with a legitimate grievance
against the Executive (and military).
||| (Guazon v. De Villa, G.R. No. 80508, [January 30, 1990],
260 PHIL 673-701)
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; GUARANTEE
AGAINST UNREASONABLE SEARCHES AND SEIZURES;
PRONOUNCEMENT OF UNITED STATES FEDERAL SUPREME
COURT AND STATE APPELLATE COURTS, DOCTRINAL IN THIS
JURISDICTION. Our present constitutional provision on the
guarantee against unreasonable search and seizure had its
origin in the 1935 Charter which was in turn derived almost
verbatim from the Fourth Amendment to the United
States Constitution. As such, the Court may turn to the
pronouncements of the United States Federal Supreme Court
and State Appellate Courts which are considered doctrinal in
this jurisdiction.
2. REMEDIAL LAW; EVIDENCE; ADMISSIBILITY; EXCLUSIONARY
RULE ON EVIDENCE OBTAINED IN VIOLATION OF THE
GUARANTEE AGAINST UNREASONABLE SEARCHES AND
SEIZURES. In a number of cases, the Court strictly adhered
to the exclusionary rule and has struck down the admissibility
of evidence obtained in violation of the constitutional
safeguard against unreasonable searches and seizures. (Bache
& Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce
de Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1
[1986]; Roan v. Gonzales, 145 SCRA 687 [1987]; See also
Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14,
1990).
3. CONSTITUTIONAL LAW; BILL OF RIGHTS; LIBERTIES MAY BE
INVOKED ONLY AGAINST THE STATE, NOT UPON PRIVATE
INDIVIDUALS. In the absence of governmental interference,
the liberties guaranteed by the Constitution cannot be
invoked against the State. As this Court held in Villanueva v.
Querubin (48 SCRA 345 [1972]: 1. This constitutional
right (against unreasonable search and seizure) refers to the
immunity of one's person, whether citizen or alien, from
interference by government, included in which is his
residence, his papers, and other possessions . . . That the Bill
of Rights embodied in the Constitution is not meant to be
invoked against acts of private individuals finds support in
the deliberations of the Constitutional Commission. The
constitutional proscription against unlawful searches and
seizures therefore applies as a restraint directed only against
the government and its agencies tasked with the
enforcement of the law. Thus, it could only be invoked
against the State to whom the restraint against arbitrary and
unreasonable exercise of power is imposed.
4. ID.; ID.; ID.; GUARANTEE AGAINST UNREASONABLE SEARCH
AND SEIZURE; CASE AT BAR. The contraband in the case at
bar having come into possession of the Government without
the latter transgressing appellant's rights against
unreasonable search and seizure, the Court sees no cogent
reason why the same should not be admitted against him in
the prosecution of the offense charged. If the search is made
upon the request of law enforcers, a warrant must generally
be first secured if it is to pass the test of constitutionality.
However, if the search is made at the behest or initiative of
the proprietor of a private establishment for its own and
private purposes, as in the case at bar, and without the
intervention of police authorities, the right against
unreasonable search and seizure cannot be invoked for only
the act of private individual, not the law enforcers, is
involved. In sum, the protection against unreasonable
searches and seizures cannot be extended to acts committed
by private individuals so as to bring it within the ambit of
alleged unlawful intrusion by the government.
5. ID.; ID.; ID.; ID.; MERE PRESENCE OF NBI AGENTS TO
OBSERVE AND LOOK AT WHICH IS IN PLAIN SIGHT IS NOT A
SEARCH. The mere presence of the NBI agents did not
convert the reasonable search effected by Reyes into a
warrantless search and seizure proscribed by the
Constitution. Merely to observe and look at that which is in
plain sight is not a search. Having observed that which is
open, where no trespass has been committed in aid thereof,
is not search (Chadwick v. State, 429 SW2d 135). Where the
contraband articles are identified without a trespass on the
part of the arresting officer, there is not the search that is
prohibited by the constitution (USv. Lee 274 US 559, 71 L.Ed.
1202 [1927]; Ker v. State of California 374 US 23, 10 L. Ed.
2d. 726 [1963]; Moore v. State, 429 SW2d 122 [1968]).
6. ID.; CONSTITUTION; DOES NOT GOVERN RELATIONSHIP
BETWEEN INDIVIDUALS. The constitution, in laying down
the principles of the government and fundamental liberties
of the people, does not govern relationships between
individuals.
7. REMEDIAL LAW; EVIDENCE; ADMISSIBILITY; EVIDENCE
PROCURED BY INDIVIDUALS EFFECTED THROUGH PRIVATE
SEIZURE, ADMISSIBLE. Similarly, the admissibility of the
evidence procured by an individual effected through private
seizure equally applies, in pari passu, to the alleged
violation, non-governmental as it is, of appellant's
constitutional rights to privacy and communication.
8. ID.; ID.; CREDIBILITY; SELF-SERVING DENIALS, DESERVE NO
WEIGHT IN LAW. Denials, if unsubstantiated by clear and
convincing evidence, are negative self-serving evidence
which deserve no weight in law and cannot be given greater
evidentiary weight than the testimony of credible witnesses
who testify on affirmative matters (People v. Esquillo, 171
SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237 [1989]).
9. ID.; ID.; ID.; REQUISITE FOR EVIDENCE TO BE BELIEVED.
Evidence, to be believed, must not only proceed from the
mouth of a credible witness, but it must be credible in itself
such as the common experience and observation of mankind
can approve as probable under the circumstances.
10. ID.; ID.; BURDEN OF PROOF AND PRESUMPTIONS; THINGS
WHICH A PERSON POSSESSES ARE PRESUMED OWNED BY HIM;
CASE AT BAR. As records further show, appellant did not
even bother to ask Michael's full name, his complete address
or passport number. Furthermore, if indeed, the German
national was the owner of the merchandise, appellant should
have so indicated in the contract of shipment. On the
contrary, appellant signed the contract as the owner and
shipper thereof giving more weight to the presumption that
things which a person possesses, or exercises acts of
ownership over, are owned by him (Sec. 5 [j], Rule 131). At
this point, appellant is therefore estopped to claim
otherwise.
||| (People v. Marti, G.R. No. 81561, [January 18, 1991], 271
PHIL 51-65)
SYLLABUS
1. CONSTITUTIONAL LAW; SEARCH AND SEIZURE; WHO MAY
CONTEST LEGALITY THEREOF CASE AT BAR. It is well settled
that the legality of a seizure can be contested only by the
party whose rights have been impaired thereby
(Lewis vs. U.S., 6 F. 2d. 22) and that the objection to an
unlawful search and seizure is purely personal and cannot be
availed of by third parties (In. re Dooley, 48 F. 2d. 121:
Rouda vs. U.S., 10 F. 2d. 916; Lusco vs. U.S., 287 F. 69;
Ganci vs. U.S., 287 F, 60; Moriz vs.U.S., 26 F. 2d. 444).
Consequently, petitioner in the case at bar may not validly
object to the use in evidence against them of the document,
papers, and things seized from the offices and premises of
the corporation adverted to, since the right to object to the
admission of said papers in evidence belongs exclusively to
the corporations, to whom the seized effects belong, and
may not be invoked by the corporate officers in proceedings
against them in their individual capacity U.S., vs.Gaas, 17 F.
2d. 997; People vs. Rubio, 57 Phil., 384).
2. ID.; ID.; REQUISITES FOR ISSUANCE OF SEARCH WARRANT.
Two points must be stressed in connection with this
constitutional mandate, namely: (1) that no warrant issue
but upon probable cause, to be determined by the judge in
the manner set forth in said provision; and (2) that the
warrant shall particularly describe the things to be seized.
None of these requirements has been complied with in the
contested warrants. Indeed, the same 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." In other words, no specific offense had
been alleged in said applications. The averments thereof
with respect to the offense committed were abstract. As a
consequence, it was impossible for the judges who issued the
warrants to have found the existence of probable cause, for
the same presupposes the introduction of competent proof
that the party against whom it is sought has performed
particular acts, or committed specific omissions, violating a
given provision of our criminal laws. As a matter of fact, the
applications involved in the case at bar do not allege any
specific acts performed by herein petitioners. It would be a
legal heresy, 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", as
alleged in aforementioned applications without reference
to any determine provision of said laws or coders.
3. ID.; ID.; ID.; GENERAL WARRANTS ARE OUTLAWED BY THE
CONSTITUTION. To uphold the validity of the warrants in
question, would be to wipe out completely one of the most
fundamental rights guaranteed in our Constitution, for it
would place the sanctity of the domicile and the privacy of
communication and correspondence at the mercy of the
victims, caprice or passion of peace officers. This is precisely
the evil sought to be remedied by the constitutional provision
Sec. 1, par. 3 Art. III, Const.) to outlaw the so-called
general warrants. It is not difficult to imagine what would
happen, in times of keen political strife, when the party in
power feels that the minority is likely to wrest it, even
though by legal means. Such is the seriousness of the
irregularities committed in connection with the disputed
search warrants, that this Court deemed it fit to amend
Section 3 of Rule 122 of the former Rules of Court, by
providing in its counterpart, under the Revised Rules of Court
(Sec. 3, Rule 126) that "a search warrant shall not issue but
upon probable cause in connection with one specific
offense." Not satisfied with this qualification, the Court
added thereto paragraph, directing that "no search warrant
shall issue for more than one specific offense."
4. ID.; ID.; ID.; ID.; CASE AT BAR. The grave violation of the
Constitution made in the application for the contested search
warrants was compounded by the description therein made
of the effects to be searched for and seized, to wit: "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." Thus, the warrants authorized the search for
and seizure of records pertaining to all business
transactions petitioners herein, regardless of whether the
transaction 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 objective:
the elimination of general warrants.
5. ID.; ID.; ID.; NON-EXCLUSIONARY RULE CONTRAVENES THE
CONSTITUTIONAL PROHIBITIONS AGAINST UNREASONABLE
SEARCH AND SEIZURES. Indeed, the non-exclusionary rule is
contrary, not only to the letter, but also to the spirit of the
constitutional injunction against unreasonable searches and
seizures. To be sure, if the applicant for a search warrant has
competent evidence to establish probable cause of the
commission of a given crime by the party against whom the
warrant is intended, then there is no reason why the
applicant should not comply with the requirements of the
fundamental law. Upon the other hand, if he has no such
competent evidence, then it is not possible for the Judge to
find that there is probable cause and only possible for the
Judge to find that there is probable cause and hence, no
justification for the issuance of the warrant. The only
possible explanation (not justification) for its issuance is the
necessity of fishing evidence of the commission of crime. But
when this fishing expedition is indicative of the absence of
evidence to establish a probable cause.
6. ID.; ID.; ID.; ID.; PROSECUTION OF THOSE WHO SECURE
ILLEGAL SEARCH WARRANT OR MAKE UNREASONABLE SEARCH
OR SEIZURE IS NO EXCUSE. The theory that the criminal
prosecution of those who secure an illegal search warrant
and/or make unreasonable searches or seizures would suffice
to protect the constitutional guarantee under consideration,
overlooks the fact that violations thereof are, in general,
committed by agents of the party in power, for certainly,
those belonging to the minority could not possibly abuse a
power they do not have. Regardless of the handicap under
which the minority usually but understandably finds itself in
prosecuting agents of the majority, one must not lose sight of
the fact that the psychological and moral effect of the
possibility of securing their conviction, is watered down by
the pardoning power of the party for whose benefit the
illegality had been committed.
7. ID.; ID.; ID.; MONCADO DOCTRINE ABANDONED. The
doctrine adopted in the Moncado case must be, as it is
hereby, abandoned; the warrants for the search of 3
residences of petitioners, as specified in the Resolution of
June 29, 1962, are null and void; the searches and seizures
therein made are illegal.
||| (Stonehill v. Diokno, G.R. No. L-19550, [June 19, 1967],
126 PHIL 738-766)
The petition should be granted for the following reasons:
1. Respondent Judge failed to personally examine the
complainant and his witness.
The pertinent provisions of the Constitution of the Philippines
and of the Revised Rules of Court are:
"(3) The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and
seizures shall not be violated, and no warrants shall issue but
upon probable cause, to be determined 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." (Art. III, Sec. 1, Constitution.)
"SEC. 3. Requisites for issuing search warrant. A search
warrant shall not issue but upon probable cause in
connection with one specific offense to be determined by the
judge or justice of the peace 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.
"No search warrant shall issue for more than one specific
offense.
"SEC. 4. Examination of the applicant. The judge or justice
of the peace 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." (Rule 126, Revised Rules of
Court.)
The examination of the complainant and the witnesses he
may produce, required by Art. III, Sec. 1, par. 3, of the
Constitution, and by Secs. 3 and 4, Rule 126 of the Revised
Rules of Court, should be conducted by the judge himself and
not by others. The phrase "which shall be determined by the
judge after examination under oath or affirmation of the
complainant and the witnesses he may produce," appearing
in the said constitutional provision, was introduced by
Delegate Francisco as an amendment to the draft submitted
by the Sub-Committee of Seven. The following discussion in
the Constitutional Convention (Laurel, Proceedings of the
Philippine Constitutional Convention, Vol. III, pp. 755-757) is
enlightening:
"SR. ORENSE. Vamos a dejar compaero los piropos y vamos al
grano.
En los casos de una necesidad de actuar inmediatamente
para que no se frusten los fines de la justicia mediante el
registro inmediato y la incautacion del cuerpo del delito, no
cree Su Seoria que causaria cierta demora el procedimiento
apuntado en su enmienda en tal forma que podria frustrar los
fines de la justicia o si Su Seoria encuentra un remedio para
esto casos con el fin de compaginar los fines de la justicia
con los derechos del individuo en su persona, bienes
etcetera, etcetera.
"SR. FRANCISCO. No puedo ver en la practica el caso hipottico
que Su Seoria pregunta por la siguiente razon: el que
solicita un mandamiento de registro tiene que hacerlo por
escrito y ese escrito no aparecer en la Mesa del Juez sin que
alguien vaya el juez a presentar ese escrito o peticion de
sucuestro. Esa persona que presenta el registro puede ser el
mismo denunciante o alguna persona que solicita dicho
mandamiento de registro. Ahora toda la enmienda en esos
casos consiste en que haya peticion de registro y el juez no
se atendra solamente a sea peticion sino que el juez
examiner a ese denunciante y si tiene testigos tambin
examiner a los testigos.
"SR. ORENSE. No cree Su Seoria que el tomar le declaracion
de ese denunciante por escrito siempre requeriria algun
tiempo?.
"SR. FRANCISCO. Seria cuestio de un par de horas, pero por
otro lado minimizamos en todo lo posible las vejaciones
injustas con la expedicion arbitraria de los mandamientos de
registro. Creo que entre dos males debemos escoger. el
menor.
xxx xxx xxx
"MR. LAUREL. . . . The reason why we are in favor of this
amendment is because we are incorporating in our
constitution something of a fundamental character. Now,
before a judge could issue a search warrant, he must be
under the obligation to examine personally under oath the
complainant and if he has any witness, the witnesses that he
may produce . . ."
The implementing rule in the Revised Rules of Court, Sec. 4,
Rule 126, is more emphatic and candid, for it requires the
judge, before issuing a search warrant, to "personally
examine on oath or affirmation the complainant and any
witnesses he may produce . . ."
Personal examination by the judge of the complainant and his
witnesses is necessary to enable him to determine the
existence or non-existence of a probable cause, pursuant to
Art. III, Sec. 1, par. 3, of the Constitution, and Sec. 3, Rule
126 of the Revised Rules of Court, both of which prohibit the
issuance of warrants except "upon probable cause." The
determination of whether or not a probable cause exists calls
for the exercise of judgment after a judicial appraisal of
facts and should not be allowed to be delegated in the
absence of any rule to the contrary.
In the case at bar, no personal examination at all was
conducted by respondent Judge of the complainant
(respondent De Leon) and his witness (respondent Logronio).
While it is true that the complainant's application for search
warrant and the witness' printed-form deposition were
subscribed and sworn to before respondent Judge, the latter
did not ask either of the two any question the answer to
which could possibly be the basis for determining whether or
not there was probable cause against herein petitioners.
Indeed, the participants seem to have attached so little
significance to the matter that notes of the proceedings
before respondent Judge were not even taken. At this
juncture it may be well to recall the salient facts. The
transcript of stenographic notes (pp. 61-76, April 1, 1970,
Annex J-2 of the Petition) taken at the hearing of this case in
the court below shows that per instruction of respondent
Judge, Mr. Eleodoro V. Gonzales, Special Deputy Clerk of
Court, took the depositions of the complainant and his
witness, and that stenographic notes thereof were taken by
Mrs. Gaspar. At that time respondent Judge was at the sala
hearing a case. After respondent Judge was through with the
hearing, Deputy Clerk Gonzales, stenographer Gaspar,
complainant De Leon and witness Logronio went to
respondent Judge's chamber and informed the Judge that
they had finished the depositions. Respondent Judge then
requested the stenographer to read to him her stenographic
notes. Special Deputy Clerk Gonzales testified as follows:

"A And after finishing reading the stenographic notes, the

Honorable Judge requested or instructed them, requested Mr.
Logronio to raise his hand and warned him if his deposition
will be found to be false and without legal basis, he can be
charged criminally for perjury. The Honorable Court told Mr.
Logronio whether he affirms the facts contained in his
deposition and the affidavit executed before Mr. Rodolfo de
Leon.
"Q And thereafter?
"A And thereafter, he signed the deposition of Mr. Logronio.
"Q Who is this he?
"A The Honorable Judge.
"Q The deposition or the affidavit?
"A The affidavit, Your Honor."
Thereafter, respondent Judge signed the search warrant.
The participation of respondent Judge in the proceedings
which led to the issuance of Search Warrant No. 2-M-70 was
thus limited to listening to the stenographer's readings of her
notes, to a few words of warning against the commission of
perjury, and to administering the oath to the complainant
and his witness. This cannot be consider a personal
examination. If there was an examination at all of the
complainant and his witness, it was the one conducted by the
Deputy Clerk of Court. But, as stated, the Constitution and
the rules require a personal examination by the judge. It was
precisely on account of the intention of the delegates to the
Constitutional Convention to make it a duty of the issuing
judge to personally examine the complainant and his
witnesses that the question of how much time would be
consumed by the judge in examining them came up before
the Convention, as can be seen from the record of the
proceedings quoted above. The reading of the stenographic
notes to respondent Judge did not constitute sufficient
compliance with the constitutional mandate and the rule; for
by that manner respondent Judge did not have the
opportunity to observe the demeanor of the complainant and
his witness, and to propound initial and follow-up questions
which the judicial mind, on account of its training, was in the
best position to conceive. These were important in arriving at
a sound inference on the all-important question of whether
or not there was probable cause.
2. The search warrant was issued for more than one specific
offense.
Search Warrant No. 2-M-70 was issued for "[v]iolation of Sec.
46(a) of the National Internal Revenue Code in relation to all
other pertinent provisions thereof particularly Secs. 53, 72,
73, 208 and 209." The question is: Was the said search
warrant issued "in connection with one specific offense," as
required by Sec. 3, Rule 126?
To arrive at the correct answer it is essential to examine
closely the provisions of the Tax Code referred to above. Thus
we find the following:
Sec. 46(a) requires the filing of income tax returns by
corporations.
Sec. 53 requires the withholding of income taxes at source.
Sec. 72 imposes surcharges for failure to render income tax
returns and for rendering false and fraudulent returns.
Sec. 73 provides the penalty for failure to pay the income
tax, to make a return or to supply the information required
under the Tax Code.
Sec. 208 penalizes "[a]ny person who distills, rectifies,
repacks, compounds, or manufactures any article subject to
a specific tax, without having paid the privilege tax
therefore, or who aids or abets in the conduct of illicit
distilling, rectifying, compounding, or illicit manufacture of
any article subject to specific tax . . .," and provides that in
the case of a corporation, partnership, or association, the
official and/or employee who caused the violation shall be
responsible.
Sec. 209 penalizes the failure to make a return of receipts,
sales, business, or gross value of output removed, or to pay
the tax due thereon.
The search warrant in question was issued for at least four
distinct offenses under the Tax Code. The first is the violation
of Sec. 46(a), Sec. 72 and Sec. 73 (the filing of income tax
returns), which are interrelated. The second is the violation
of Sec. 53 (withholding of income taxes at source). The third
is the violation of Sec. 208 (unlawful pursuit of business or
occupation); and the fourth is the violation of Sec. 209
(failure to make a return of receipts, sales, business or gross
value of output actually removed or to pay the tax due
thereon). Even in their classification the six above-mentioned
provisions are embraced in two different titles: Secs. 46(a),
53, 72 and 73 are under Title II (Income Tax); while Secs. 208
and 209 are under Title V (Privilege Tax on Business and
Occupation).
Respondents argue that Stonehill, et al. vs. Diokno, et al., L-
19550, June 19, 1967 (20 SCRA 383), is not applicable,
because there the search warrants were issued for "violation
of Central Bank Laws, Internal Revenue (Code) and Revised
Penal Code;" whereas, here Search Warrant No 2-M-70 was
issued for violation of only one code, i.e., the National
Internal Revenue Code. The distinction more apparent than
real, because it was precisely on account of the Stonehill
incident, which occurred sometime before the present Rules
of Court took effect on January 1, 1964, that this Court
amended the former rule by inserting therein the phrase "in
connection with one specific offense," and adding the
sentence "No search warrant shall issue for more than one
specific offense," in what is now Sec. 3, Rule 126. Thus we
said inStonehill:
"Such is the seriousness of the irregularities committed in
connection with the disputed search warrants, that this Court
deemed it fit to amend Section 3 of Rule 122 of the former
Rules of Court that 'a search warrant shall not issue but upon
probable cause in connection with one specific offense.' Not
satisfied with this qualification, the Court added thereto a
paragraph, directing that 'no search warrant shall issue for
more than one specific offense.'"
3. The search warrant does not particularly describe the
things to be seized.
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.
In Stonehill, this Court, speaking thru Mr. Chief Justice
Roberto Concepcion, said:
"The grave violation of the Constitution made in the
application for the contested search warrants was
compounded by the description therein made of the effects
to be searched for and seized, to wit:
'Books of accounts, financial records, vouchers, journals,
correspondence, receipts, ledgers, portfolios, credit
journals, typewriters, and other documents and/or paper
showing all business transactions including disbursement
receipts, balance sheets and related profit and loss
statements.'
"Thus, 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 objective: the elimination of general warrants."
While the term "all business transactions" does not appear in
Search Warrant No. 2-M-70, the said warrant nevertheless
tends to defeat the major objective of the Bill of Rights, i.e.,
the elimination of general warrants, for the language used
therein is so all-embracing as to include all conceivable
records of petitioner corporation, which, if seized, could
possibly render its business inoperative.
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:
". . . Both the Jones Law (sec. 3) and General Orders No. 58
(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 this is the correct interpretation of
this constitutional provision is borne out by 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 (Peoplevs. 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.
||| (Bache & Co. (Phil.), Inc. v. Ruiz, G.R. No. L-32409,
[February 27, 1971], 147 PHIL 794-816)

PROBABLE CAUSE

SYLLABUS
1. CRIMINAL PROCEDURE; SEARCH WARRANT; DEFINITION. A
search warrant is an order in writing, issued in the name of
the People of the Philippine Islands, signed by a judge or a
justice of the peace, and directed to a peace officer,
commanding him to search for personal property and bring it
before the court (section 95, General Orders, No. 58, as
amended by section 6 of Act No. 2886).
2. CONSTITUTIONAL LAW; SEARCHES AND SEIZURES. 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 the inspection and
scrutiny of others (In re Pacific Railway Commission, 32 Fed.,
241; Interstate Commerce Commn. vs. Brimson, 38 Law. ed.,
1047; Boyd vs. U.S., 29 Law. ed., 746; Carroll vs. U. S., 69
Law. ed., 543, 549). 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 citizens, for the enforcement of no statute is of
sufficient importance to justify indifference to the basic
principles of government (People vs. Elias, 147 N. E., 472).
3. ID.; ID. As the protection of the citizen and the
maintenance of his constitutional rights is one of the highest
duties and privileges of the court, these constitutional
guaranties should be given a liberal construction or a strict
construction in favor of the individual, to prevent stealthy
encroachment upon, or gradual depreciation of, the rights
secured by them (State vs. Custer County, 198 Pac., 362;
State vs. McDaniel, 231 Pac., 965; 237 Pac., 373). Since the
proceeding is a drastic one, it is the general rule that
statutes authorizing searches and seizures or search warrants
must be strictly construed (Rose vs. St. Clair, 28 Fed. [2d],
189; Leonard vs. U. S., 6 Fed. [2d], 353; Perry vs. U. S., 14
Fed. [2d], 88; Cofer vs. State, 118 So., 613).
4. ID.; ID.; OATH. In its broadest sense, an oath includes
any form of attestation by which a party signifies that he is
bound in conscience to perform an act faithfully and
truthfully; and it is sometimes defined as an outward pledge
given by the person taking it that his attestation or promise is
made under an immediate sense of his responsibility to God
(Bouvier's Law Dictionary; State vs. Jackson, 137 N. W.,
1034; In re Sage, 24 Oh. Cir. Ct. [N. S.], 7; Pumphrey vs.
State, 122 N. W., 19; Priest vs. State, 6 N. W., 468; State vs.
Jones, 154 Pac., 378; Atwood vs. State, 111 So., 865). 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 (U. S. vs. Tureaud, 20 Fed., 621; U. S. vs.
Michalski, 265 Fed., 839; U. S. vs. Pitotto, 267 Fed., 603; U.
S. vs. Lai Chew, 298 Fed., 652.) The true test of sufficiency
of an affidavit to warrant issuance of a search warrant is
whether it has been drawn in such a manner that perjury
could be charged thereon and affiant be held liable for
damages caused (State vs. Roosevelt County 20th Jud. Dis.
Ct., 244 Pac. 280; State vs. Quartier, 236 Pac., 746).
5. ID.; UNREASONABLE SEARCH AND SEIZURE. Unreasonable
searches and seizures are a menace against which the
constitutional guaranties afford full protection. The term
"unreasonable search and seizure" is not defined in the
Constitution or in General Orders, No. 58, and it is said to
have no fixed, absolute or unchangeable meaning, although
the term has been defined in general language. All illegal
searches and seizures are unreasonable while lawful ones are
reasonable. What constitute a reasonable or unreasonable
search or seizure in any particular case is purely a judicial
question, determinable from a consideration of the
circumstances involved, including the purpose of the search,
the presence or absence of probable cause, the manner in
which the search and seizure was made, the place or thing
searched, and the character of the articles procured (Go-Bart
Importing Co., vs. U.S., 75 Law. ed., 374; Peru vs. U. S., 4
Fed. [2d], 881; U.S., vs. Vatune, 229 Fed., 497; Agnello vs. U.
S., 70 Law. ed., 145; Lambert vs. U. S. 282 Fed., 413; U. S.
vs. Bateman, 278 Fed., 231; Mason vs. Rollins, 16 Fed. Cas.
[No. 9252], 2 Biss., 99).
6. ID.; ID.; NECESSITY OF TAKING THE AFFIDAVITS OF THE
WITNESSES. Neither the Constitution nor General Orders,
No 58 provides it of imperative necessity to take the
depositions of the witnesses to be presented by the applicant
or complainant in addition to the affidavit of the latter. The
purpose of both in requiring the presentation of depositions
is nothing else than to satisfy the committing magistrate of
the existence of probable cause. Therefore, if the affidavit
of the applicant or complainant is sufficient, the judge may
dispense with that of other witnesses. Inasmuch as the
affidavit of the agent in this case was insufficient because his
knowledge of the facts was not personal but merely hearsay,
it was the duty of the judge to require the affidavit of one or
more witnesses for the purpose of determining the existence
of probable cause to warrant the issuance of the search
warrant. When the affidavit of the applicant or complainant
contains sufficient if the judge is satisfied that there exists
probable cause; when the applicants knowledge of the facts
is mere hearsay, the affidavit of one or more witnesses
having personal knowledge of the facts is necessary. We
conclude, therefore, that the warrant issued is likewise
illegal because it was based only on the affidavit of the agent
who had no personal knowledge of the facts.
||| (Alvarez v. Court of First Instance of Tayabas, G.R. No.
45358, [January 29, 1937], 64 PHIL 33-51)

CONSTITUTIONAL LAW; BILL OF RIGHTS; ISSUANCE OF

WARRANT UPON PROBABLE CAUSE; TEST OF SUFFICIENCY NOT
MET IN CASE AT BAR. Insufficient as basis for the
determination of probable cause is the statement contained
in the joint affidavit of Alejandro M. Gutierrez and Pedro U.
Tango, "that the evidence gathered and collated by our unit
clearly shows that the premises above-mentioned were used
and are continuously being used for subversive activities in
conspiracy with, and to promote the objective of, illegal
organization such as the Light-a-Fire Movement." In
mandating that "no warrant shall issue except upon probable
cause to be determined by the judge,. . . after examination
under oath or affirmation of the complainant and the
witnesses he may produce; (Sec. 3, Art. IV, 1973 Constitution)
the Constitution requires no less than personal knowledge by
the complainant or his witnesses of the facts upon which the
issuance of a search warrant may be justified. In Alvarez vs.
Court of First Instance (64 Phil. 33), the Supreme Court ruled
that "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." The averment in the joint
affidavit filed before respondent judge hardly meets the test
of sufficiency established by the Court in Alvarez case.

8. ID.; ID.; ID.; GENERAL WARRANTS DECLARED VOID. In

Stanford vs. State of Texas (379 U.S. 476, 13 L ed 2nd 431)
the search warrants which authorized the search for "books,
records, pamphlets, cards, receipts, lists, memoranda,
pictures, recordings and other written instruments
concerning the Communist Parties of Texas, and the
operations of the Communist party in Texas," was declared
void by the U.S. Supreme Court for being too general. In like
manner, directions to "seize any evidence in connection with
the violation of SDC 13-3703 or otherwise" have been held
too general, and that portion of a search warrant which
authorized the seizure of any "paraphernalia which could be
used to violate Sec. 54-197 of the Connecticut General
Statutes [the statute dealing with the crime of conspiracy]"
was held to be a general warrant, and therefore invalid. (68
am. Jur. 2d., pp. 736-737). The description of the articles
sought to be seized under the search warrants in question
cannot be characterized differently. In the Stanford case, the
U.S. Supreme Court calls to mind a notable chapter in English
history: the era of disaccord between the Tudor Government
and the English Press, when "Officers of the Crown were
given roving commissions to search where they pleased in
order to suppress and destroy the literature of dissent both
Catholic and Puritan." Reference to such historical episode
would not be relevant for it is not the policy of our
government to suppress any newspaper or publication that
speaks with "the voice of non-conformity" but poses no clear
and imminent danger to state security.

||| (Burgos, Sr. v. Chief of Staff, G.R. No. 64261, [December

26, 1984], 218 PHIL 754-773)

PERSONAL DETERMINATION
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS OF
LAW; RESPONDENT IN A CRIMINAL CASE NEED NOT FILE HIS
COUNTER-AFFIDAVITS BEFORE PRELIMINARY INVESTIGATION IS
DEEMED COMPLETED. Due process of law does not require
that the respondent in a criminal case actually file his
counter-affidavits before the preliminary investigation is
deemed completed. All that is required is that the
respondent be given the opportunity to submit counter-
affidavits if he is so minded.
2. ID.; ID.; RIGHT OF THE PEOPLE TO BE SECURE IN THEIR
PERSONS, HOUSES, PAPERS AND EFFECTS; ISSUANCE OF
WARRANT OF ARREST; PROBABLE CAUSE; THE JUDGE HAS
EXCLUSIVE AND PERSONAL RESPONSIBILITY TO DETERMINE
EXISTENCE OF; THE PRESIDENT. This case is not a simple
prosecution for libel. We have as complainant a powerful and
popular President who heads the investigation and
prosecution service and appoints members of appellate
courts but who feels so terribly maligned that she has taken
the unorthodox step of going to court inspite of the
invocations of freedom of the press which would inevitably
follow.
3. ID.; ID.; ID.; ID.; HARASSMENT INHERENT IN ANY CRIMINAL
PROSECUTION; SUPREME COURT SHOULD DRAW THE
DEMARCATION LINE WHERE HARASSMENT GOES BEYOND USUAL
DIFFICULTIES ENCOUNTERED BY ANY ACCUSED. There is
always bound to be harassment inherent in any criminal
prosecution. Where the harassment goes beyond the usual
difficulties encountered by any accused and results in an
unwillingness of media to freely criticize government or to
question government handling of sensitive issues and public
affairs, this Court and not a lower tribunal should draw the
demarcation line.
||| (Soliven v. Makasiar, G.R. No. 82585, 82827, 83979
(Resolution), [November 14, 1988], 249 PHIL 394-406)
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST
UNLAWFUL SEARCH AND SEIZURE; PURPOSE. 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. (Alvero vs. Dizon, 76 Phil. 637
[1946]).
2. ID.; ID.; ID.; SEARCH WARRANT; REQUISITES FOR ISSUANCE
THEREOF. Based on Section 2, Article III of the 1987
Constitution and Sections 3 and 4, Rule 126 of the Rules of
Court, 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.
3. ID.; ID.; ID.; ID.; ID.; PROBABLE CAUSE; DEFINED. 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."
4. ID.; ID.; ID.; ID.; ID.; DUTY OF JUDGE TO PERSONALLY
EXAMINE THE APPLICANT AND THE WITNESSES; EFFECT OF
FAILURE TO COMPLY. 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 667, "the
capricious disregard by the judge in not complying with the
requirements before issuance of search warrants constitutes
abuse of discretion".
||| (Silva v. Presiding Judge, RTC of Negros Oriental, Br.
XXXIII, Dumaguete City, G.R. No. 81756, [October 21, 1991])
The primary issue in these consolidated petitions centers on
whether or not a judge may issue a warrant of arrest without
bail by simply relying on the prosecution's certification and
recommendation that a probable cause exists.
|||There is no problem with search warrants which are
relatively fewer and far between and where there is no
duplication of work between the Judge and the Prosecutor.
The problem lies with warrants of arrest especially in
metropolitan or highly urban areas. If a Judge has to
personally question each complainant and witness or go over
the records of the Prosecutor's investigation page by page
and word for word before he acts on each of a big pile of
applications for arrest warrants on his desk, he or she may
have no more time for his or her more important judicial
functions. LexLib
At the same time, the Judge cannot ignore the clear words of
the 1987 Constitution which requires ". . . probable cause to
be personally determined by the judge . . .", not by any
other officer or person.
If a Judge relies solely on the certification of the Prosecutor
as in this case where all the records of the investigation are
in Masbate, he or she has not personallydetermined probable
cause. The determination is made by the Provincial
Prosecutor. The constitutional requirement has not been
satisfied. The Judge commits a grave abuse of discretion.
The records of the preliminary investigation conducted by
the Municipal Court of Masbate and reviewed by the
respondent Fiscal were still in Masbate when the respondent
Fiscal issued the warrants of arrest against the petitioners.
There was no basis for the respondent Judge to make his own
personal determination regarding the existence of a probable
cause for the issuance of a warrant of arrest as mandated
by the Constitution. He could not possibly have known what
transpired in Masbate as he had nothing but a certification.
Significantly, the respondent Judge denied the petitioners'
motion for the transmittal of the records on the ground that
the mere certification and recommendation of the
respondent Fiscal that a probable cause exists is sufficient
for him to issue a warrant of arrest. prLL
We reiterate the ruling in Soliven v. Makasiar that the Judge
does not have to personally examine the complainant and his
witnesses. The Prosecutor can perform the same functions as
a commissioner for the taking of the evidence. However,
there should be a report and necessary documents supporting
the Fiscal's bare certification. All of these should be before
the Judge.
The extent of the Judge's personal examination of the report
and its annexes depends on the circumstances of each case.
We cannot determine beforehand how cursory or exhaustive
the Judge's examination should be. The Judge has to exercise
sound discretion for, after all, the personal determination is
vested in the Judge bythe Constitution. It can be as brief or
as detailed as the circumstances of each case require. To be
sure, the Judge must go beyond the Prosecutor's certification
and investigation report whenever necessary. He should call
for the complainant and witnesses themselves to answer the
court's probing questions when the circumstances of the case
so require. LLjur
It is worthy to note that petitioners Vicente Lim, Sr. and
Susana Lim presented to the respondent Judge documents of
recantation of witnesses whose testimonies were used to
establish a prima facie case against them. Although, the
general rule is that recantations are not given much weight in
the determination of a case and in the granting of a new trial
(Tan Ang Bun v. Court of Appeals, et al., G.R. No. L-47747,
February 15, 1990, People v. Lao Wan Sing, 46 SCRA 298
[1972]) the respondent Judge before issuing his own warrants
of arrest should, at the very least, have gone over the
records of the preliminary examination conducted earlier in
the light of the evidence now presented by the concerned
witnesses in view of the "political undertones" prevailing in
the cases. Even the Solicitor General recognized the
significance of the recantations of some witnesses when he
recommends a reinvestigation of the cases
||| (Lim, Sr v. Felix, G.R. Nos. 94054-57, 94266-69, [February
19, 1991], 272 PHIL 122-138)
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST
UNLAWFUL SEARCH AND SEIZURE; REQUISITES FOR ISSUANCE
OF SEARCH WARRANT. Under the Constitution "no search
warrant shall issue but 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". More emphatic and detailed is the implementing
rule of the constitutional injunction, Section 4 of Rule 126
which provides that the 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.
2. ID.; ID.; ID.; ID.; INSUFFICIENCY OF AFFIDAVITS OF
COMPLAINANT AND HIS WITNESSES IN THE CASE AT BAR.
Before issuing a search warrant, the examining Judge has to
take depositions in writing of the complainant and the
witnesses he may produce and to 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, and to hold liable for
perjury the person giving it if it will be found later that his
declarations are false. Mere affidavits of the complainant and
his witnesses are thus not sufficient.
3. ID.; ID.; ID.; ID.; NO "DEPOSITION IN WRITING" ATTACHED
TO RECORDS OF CASE IN CASE AT BAR. The judge's
insistence that she examined the complainants under oath
has become dubious by petitioner's claim that at the
particular time when he examined all the relevant papers
connected with the issuance of the questioned search
warrant, after he demanded the same from the lower court
since they were not attached to the records, he did not find
any certification at the back of the joint affidavit of the
complainants. Before he filed his motion to quash the search
warrant and for the return of the articles seized, he was
furnished, upon his request, certified true copies of the said
affidavits by the Clerk of Court but which certified true
copies do not bear any certification at the back. Petitioner
likewise claims that his xerox copy of the said joint affidavit
obtained at the outset of this case does not show also the
certification of respondent judge. This doubt becomes more
confirmed by respondent Judge's own admission, while
insisting that she did examine thoroughly the applicants, that
"she did not take the deposition of Mayote and Goles because
to have done so would be to hold a judicial proceeding which
will be open and public", such that, according to her, the
persons subject of the intended raid will just disappear and
move his illegal operations somewhere else. Could it be that
the certification was made belatedly to cure the defect of
the warrant? Be that as it may, there was no "deposition in
writing" attached to the records of the case in palpable
disregard of the statutory prohibition heretofore quoted.
4. ID.; ID.; ID.; ID.; DEPOSITIONS, HOW TAKEN. The
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.
5. ID.; ID.; ID.; ID.; MUST BE STRICTLY COMPLIED WITH; CASE
AT BAR. Nothing can justify the issuance of the search
warrant but the fulfillment of the legal requisites. Thus, in
issuing a search warrant the Judge must strictly comply with
the requirements of the Constitution and the statutory
provisions. In the case at bar, the search warrant is tainted
with illegality by the failure of the Judge to conform with
essential requisites of taking the depositions in writing and
attaching them to record, rendering the search warrant
invalid.
||| (Mata v. Bayona, G.R. No. 50720, [March 26, 1984], 213
PHIL 348-355)
PARTICULAR DESCRIPTION
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST
UNREASONABLE SEARCHES AND SEIZURE; IMPORTANCE. The
constitutional right provided in Sec. 2, Art. III of the present
Constitution protects a citizen against wanton and
unreasonable invasion of his privacy and liberty as to his
person, papers and effects. We have explained in the case
of People v. Burgos (144 SCRA 1) citing Villanueva
v.Querubin (48 SCRA 345) why the right is so important: "'It is
deference to one's personality that lies at the core of this
right but it could be also looked upon as a recognition of a
constitutionally protected area, primarily one's home, but
not necessarily thereto confined. (Cf. Hoffa v. United States,
385 US 293 [1966]) What is sought to be guarded is a man's
prerogative to choose who is allowed entry to his residence.
In that haven of refuge, his individuality can assert itself not
only in the choice of who shall be welcome but likewise in
the kind of objects he wants around him. There the state,
however powerful, does not as such have access except
under the circumstances above noted, for in the traditional
formulation, his house, however humble, is his castle. Thus is
outlawed any unwarranted intrusion by government, which is
called upon to refrain from any invasion of his dwelling and
to respect the privacies of his life. (Cf. Schmerber v.
California, 384 US 757 [1966], Brennan, J. and Boyd v. United
States, 116 630 [1886]). In the same vein, Landynski in his
authoritative work (Search and Seizure and the Supreme
Court [1966]), could fitly characterize constitutional right as
the embodiment of a 'spiritual concept: the belief that to
value the privacy of home and person and to afford its
constitutional protection against the long reach of
government is no less than to value human dignity, and that
his privacy must not be disturbed except in case of overriding
social need, and then only under stringent procedural
safeguards.' (ibid, p. 74).'"
2. ID.; ID.; ID.; ISSUANCE OF SEARCH WARRANT; RESTRICTED
BY THE SEARCHES AND SEIZURES PROVISION. The
government's right to issue search warrants against a citizen's
papers and effects is circumscribed by the requirements
mandated in the searches and seizures provision of the
Constitution.
3. ID.; ID.; ID.; ID.; PROBABLE CAUSE; DEFINED. In the case
of Burgos, Sr. v. Chief of Staff , AFP (133 SCRA 800), we
defined probable cause for a valid search "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."
4. ID.; ID.; ID.; ID.; PERSONAL KNOWLEDGE OF COMPLAINANT
OR WITNESSES, REQUIRED. This constitutional provision
also demands "no less than personal knowledge by the
complainant or his witnesses of the facts upon which the
issuance of a search warrant may be justified" in order to
convince the judge, not the individual making the affidavit
and seeking the issuance of the warrant, of the existence of
a probable cause. (Alvarez v. Court of First Instance, 64 Phil.
33; Burgos, Sr. v. Chief of Staff, AFP, supra).
5. ID.; ID.; ID.; ID.; COPYRIGHT INFRINGEMENT,
PRESENTATION OF MASTER TAPES ALLEGEDLY COPIED IS
NECESSARY. The essence of a copyright infringement is the
similarity or at least substantial similarity of the purported
pirated works to the copyrighted work. Hence, the applicant
must present to the court the copyrighted films to compare
them with the purchased evidence of the video tapes
allegedly pirated to determine whether the latter is an
unauthorized reproduction of the former. This linkage of the
copyrighted films to the pirated films must be established to
satisfy the requirements of probable cause. Mere allegations
as to the existence of the copyrighted films cannot serve as
basis for the issuance of a search warrant.
6. ID.; ID.; ID.; ID.; GENERAL WARRANTS, A VIOLATION OF THE
CONSTITUTIONAL RIGHTS. In the case of Burgos v. Chief of
Staff, AFP supra, we stated: "Another factor which makes the
search warrants under consideration constitutionally
objectionable is that they are in the nature of general
warrants." Undoubtedly, a similar conclusion can be deduced
from the description of the articles sought to be confiscated
under the questioned search warrants. Television sets, video
cassette recorders, rewinders and tape cleaners are articles
which can be found in a video tape store engaged in the
legitimate business of lending or renting out betamax tapes.
In short, these articles and appliances are generally
connected with, or related to a legitimate business not
necessarily involving piracy of intellectual property or
infringement of copyright laws. Hence, including these
articles without specification and/or particularity that they
were really instruments in violating an Anti-Piracy law makes
the search warrant too general which could result in the
confiscation of all items found in any video store.
||| (20th Century Fox Film Corp. v. Court of Appeals, G.R.
Nos. 76649-51, [August 19, 1988], 247 PHIL 624-637)
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 Philippines/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.
||| 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, ||| (Nolasco v. Pao, G.R. No. L-69803,
[October 8, 1985], 223 PHIL 363-383)

VALID WARRANTLESS SEARCHES

Accused was searched and arrested while transporting
prohibited drugs (hashish). A crime was actually being
committed by the accused and he was caught in flagrante
delicto. Thus, the search made upon his personal effects falls
squarely under paragraph (1) of the foregoing provisions of
law, which allow a warrantless search incident to a lawful
arrest. 7
While it is true that the NARCOM officers were not armed
with a search warrant when the search was made over the
personal effects of accused, however, under the
circumstances of the case, there was sufficient probable
cause for said officers to believe that accused was then and
there committing a crime. LLphil
Probable cause has been defined as such facts and
circumstances which could lead a reasonable, 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. 8 The required
probable cause that will justify a warrantless search and
seizure is not determined by any fixed formula but is
resolved according to the facts of each case. 9

Warrantless search of the personal effects of an accused has

been declared by this Court as valid, because of existence of
probable cause, where the smell of marijuana emanated
from a plastic bag owned by the accused, 10 or where the
accused was acting suspiciously, 11 and attempted to flee. 12
Aside from the persistent reports received by the NARCOM
that vehicles coming from Sagada were transporting
marijuana and other prohibited drugs, their Commanding
Officer also received information that a Caucasian coming
from Sagada on that particular day had prohibited drugs in
his possession. Said information was received by the
Commanding Officer of NARCOM the very same morning that
accused came down by bus from Sagada on his way to Baguio
City.
When NARCOM received the information, a few hours before
the apprehension of herein accused, that a Caucasian
travelling from Sagada to Baguio City was carrying with him
prohibited drugs, there was no time to obtain a search
warrant. In the Tangliben case, 13 the police authorities
conducted a surveillance at the Victory Liner Terminal
located at Bgy. San Nicolas, San Fernando Pampanga, against
persons engaged in the traffic of dangerous drugs, based on
information supplied by some informers. Accused Tangliben
who was acting suspiciously and pointed out by an informer
was apprehended and searched by the police authorities. It
was held that when faced with on-the spot information, the
police officers had to act quickly and there was no time to
secure a search warrant.
It must be observed that, at first, the NARCOM officers
merely conducted a routine check of the bus (where accused
was riding) and the passengers therein, and no extensive
search was initially made. It was only when one of the
officers noticed a bulge on the waist of accused, during the
course of the inspection, that accused was required to
present his passport. The failure of accused to present his
identification papers, when ordered to do so, only managed
to arouse the suspicion of the officer that accused was trying
to hide his identity. For is it not a regular norm for an
innocent man, who has nothing to hide from the authorities,
to readily present his identification papers when required to
do so?
The receipt of information by NARCOM that a Caucasian
coming from Sagada had prohibited drugs in his possession,
plus the suspicious failure of the accused to produce his
passport, taken together as a whole, led the NARCOM officers
to reasonably believe that the accused was trying to hide
something illegal from the authorities. From these
circumstances arose a probable cause which justified the
warrantless search that was made on the personal effects of
the accused. In other words, the acts of the NARCOM officers
in requiring the accused to open his pouch bag and in opening
one of the wrapped objects found inside said bag (which was
discovered to contain hashish) as well as the two (2)
travelling bags containing two (2) teddy bears with hashish
stuffed inside them, were prompted by accused's own
attempt to hide his identity by refusing to present his
passport, and by the information received by the NARCOM
that a Caucasian coming from Sagada had prohibited drugs in
his possession. To deprive the NARCOM agents of the ability
and facility to act accordingly, including, to search even
without warrant, in the light of such circumstances, would be
to sanction impotence and ineffectiveness in law
enforcement, to the detriment of society.
||| (People v. Malmstedt, G.R. No. 91107, [June 19, 1991],
275 PHIL 447-472)

PLAIN VIEW DOCTRINE

CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM AGAINST
UNREASONABLE SEARCH AND SEIZURE; EVIDENCE OBTAINED IN
VIOLATION THEREOF. Built into the Constitution are
guarantees on the freedom of every individual against
unreasonable searches and seizures. Furthermore, the
Constitution, in conformity with the doctrine laid down
in Stonehill v. Diokno, (G.R. No. L-19550, June 19, 1967, 20
SCRA 383) declares inadmissible, any evidence obtained in
violation of the freedom from unreasonable searches and
seizures.
6. REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH & SEIZURE;
SEARCH INCIDENTAL TO LAWFUL ARREST. While a valid
search warrant is generally necessary before a search and
seizure may be effected, exceptions to this rule are
recognized. Thus, in Alvero v. Dizon, the Court stated that
"[t]he most important exception to the necessity for a search
warrant is the right of search and seizure as an incident to a
lawful arrest." Rule 126, Section 12 of the Rules of Court
expressly authorizes a warrantless search and seizure
incident to a lawful arrest. There is no doubt that the
warrantless search incidental to a lawful arrest authorizes
the arresting officer to make a search upon the person of the
person arrested. As early as 1909, the Court has ruled that
"[a]n officer making an arrest may take from the person
arrested and money or property found upon his person which
was used in the commission of the crime or was the fruit of
the crime or which might furnish the prisoner with the means
of committing violence or of escaping, or which may be used
as evidence in the trial of the cause . . ." Hence, in a buy-
bust operation conducted to entrap a drug-pusher, the law
enforcement agents may seize the marked money found on
the person of the pusher immediately after the arrest even
without arrest and search warrants.
7. ID.; ID.; ID.; ID.; DOCTRINE OF "PLAIN VIEW". The
warrantless search and seizure, as an incident to a suspect's
lawful arrest, may extend beyond the person of the one
arrested to include the premises or surroundings under his
immediate control. Objects in the "plain view" of an officer
who has the right to be in the position to have that view are
subject to seizure and may be presented as evidence.
8. ID.; ID.; ID.; ID.; ID.; LIMITATION. The "plain view"
doctrine may not, however, be used to launch unbridled
searches and indiscriminate seizures nor to extend a general
exploratory search made solely to find evidence of
defendant's guilt. The "plain view" doctrine is usually applied
where a police officer is not searching for evidence against
the accused, but nonetheless inadvertently comes across an
incriminating object. It has also been suggested that even if
an object is observed in "plain view," the "plain view"
doctrine will not justify the seizure of the object where the
incriminating nature of the object is not apparent from the
"plain view" of the object. Stated differently, it must be
immediately apparent to the police that the items that they
observe may be evidence of a crime, contraband, or
otherwise subject to seizure.
9. ID.; ID.; ID.; ID.; ID.; NOT APPLICABLE IN CASE AT BAR. In
the instant case, the appellant was arrested and his person
searched in the living room. Failing to retrieve the marked
money which they hoped to find, the NARCOM agents
searched the whole house and found the plastic bag in the
kitchen. The plastic bag was, therefore, not within their
"plain view" when they arrested the appellant as to justify its
seizure. The NARCOM agents had to move from one portion of
the house to another before they sighted the plastic bag.
Moreover, when the NARCOM agents saw the plastic bag
hanging in one corner of the kitchen, they had no clue as to
its contents. They had to ask the appellant what the bag
contained. When the appellant refused to respond, they
opened it and found the marijuana. Unlike Ker v. California,
where the marijuana was visible to the police officer's eyes,
the NARCOM agents in this case could not have discovered
the inculpatory nature of the contents of the bag had they
not forcibly opened it. Even assuming then, that the NARCOM
agents inadvertently came across the plastic bag because it
was within their "plain view," what may be said to be the
object in their "plain view" was just the plastic bag and not
the marijuana. The incriminating nature of the contents of
the plastic bag was not immediately apparent from the "plain
view" of said object. It cannot be claimed that the plastic
bag clearly betrayed its contents, whether by its distinctive
configuration, its transparency, or otherwise, that its
contents are obvious to an observer. We, therefore, hold that
under the circumstances of the case, the "plain view"
doctrine does not apply and the marijuana contained in the
plastic bag was seized illegally and cannot be presented in
evidence pursuant to Article III, Section 3(2) of the
Constitution.
||| (People v. Musa y Hantatalu, G.R. No. 96177, [January
27, 1993])

STOP AND FRISK

1. The Fourth Amendment right against unreasonable
searches and seizures, made applicable to the States by the
Fourteenth Amendment, "protects people, not places," and
therefore applies as much to the citizen on the streets as
well as at home or elsewhere. Pp. 8-9.
2. The issue in this case is not the abstract propriety of the
police conduct, but the admissibility against petitioner of the
evidence uncovered by the search and seizure. P. 12.
3. The exclusionary rule cannot properly be invoked to
exclude the products of legitimate and restrained police
investigative techniques, and this Court's approval of such
techniques should not discourage remedies other than the
exclusionary rule to curtail police abuses for which that is not
an effective sanction. Pp. 13-15.
4. The Fourth Amendment applies to "stop and frisk"
procedures such as those followed here. Pp. 16-20.
(a) Whenever a police officer accosts an individual and
restrains his freedom to walk away, he has "seized" that
person within the meaning of the Fourth Amendment. P. 16.
(b) A careful exploration of the outer surfaces of a person's
clothing in an attempt to find weapons is a "search" under
that Amendment. P. 16.
5. Where a reasonably prudent officer is warranted in the
circumstances of a given case in believing that his safety or
that of others is endangered, he may make a reasonable
search for weapons of the person believed by him to be
armed and dangerous [p3] regardless of whether he has
probable cause to arrest that individual for crime or the
absolute certainty that the individual is armed. Pp. 20-27.
(a) Though the police must, whenever practicable, secure a
warrant to make a search and seizure, that procedure cannot
be followed where swift action based upon on-the-spot
observations of the officer on the beat is required. P. 20.
(b) The reasonableness of any particular search and seizure
must be assessed in light of the particular circumstances
against the standard of whether a man of reasonable caution
is warranted in believing that the action taken was
appropriate. Pp. 21-22.
(c) The officer here was performing a legitimate function of
investigating suspicious conduct when he decided to
approach petitioner and his companions. P. 22.
(d) An officer justified in believing that an individual whose
suspicious behavior he is investigating at close range is armed
may, to neutralize the threat of physical harm, take
necessary measures to determine whether that person is
carrying a weapon. P. 24.
(e) A search for weapons in the absence of probable cause to
arrest must be strictly circumscribed by the exigencies of the
situation. Pp. 25-26.
(f) An officer may make an intrusion short of arrest where he
has reasonable apprehension of danger before being
possessed of information justifying arrest. Pp. 26-27.
6. The officer's protective seizure of petitioner and his
companions and the limited search which he made were
reasonable, both at their inception and as conducted. Pp. 27-
30.
(a) The actions of petitioner and his companions were
consistent with the officer's hypothesis that they were
contemplating a daylight robbery and were armed. P. 28.
(b) The officer's search was confined to what was minimally
necessary to determine whether the men were armed, and
the intrusion, which was made for the sole purpose of
protecting himself and others nearby, was confined to
ascertaining the presence of weapons. Pp. 29-30.
7. The revolver seized from petitioner was properly admitted
into evidence against him, since the search which led to its
seizure was reasonable under the Fourth Amendment. Pp. 30-
31.

2. POLITICAL LAW; CONSTITUTIONAL LAW; RIGHTS OF THE

ACCUSED; RIGHT AGAINST UNREASONABLE SEARCHES AND
SEIZURES; WARRANTLESS SEARCH BEFORE MAKING AN ARREST
JUSTIFIED BY SUSPICIOUS CONDUCT OF ACCUSED; CASE AT
BENCH. Accused appellant argued that the trial court erred
in admitting the subject firearm in evidence as it was the
product of an unlawful warrantless search. He maintained
that the search made on his person violated his constitutional
right to be secure in his person and effects against
unreasonable searches and seizures. Not only was the search
made without a warrant but it did not fall under any of the
circumstances enumerated under Section 5, Rule 113 of the
1985 Rules on Criminal Procedure. . . . Under the
circumstances obtaining in this case, however, accused-
appellant's arguments are hardly tenable. He and his
companions' drunken actuations aroused the suspicion of
SPO3 Nio's group. After SPO3 Nio told accused-appellant
not to run away, the former identified himself as a
government agent. The peace officers did not know that he
had committed, or was actually committing, the offense of
illegal possession of firearm. Tasked with verifying the report
that there were armed men roaming in the barangays
surrounding Caibiran, their attention was understandably
drawn to the group that had aroused their suspicion. They
could not have known that the object wrapped in coconut
leaves which accused-appellant was carrying hid a firearm.
As with Posadas, where this Court ruled that the search and
seizure brought about by the suspicious conduct of Posadas
himself can be likened to a "stop and frisk" situation. There
was probable cause to conduct a search even before an
arrest could be made. . . ., the case at bar constitutes an
instance where a search and seizure may be effected without
first making an arrest. There was justifiable cause to "stop
and frisk" accused-appellant when his companions fled upon
seeing the government agents. Under the circumstances, the
government agents could not possibly have procured a search
warrant first. Thus, there was no violation of the
constitutional guarantee against unreasonable searches and
seizures. Nor was there error on the part of the trial court
when it admitted the homemade firearm as
evidence.||| (People v. Solayao, G.R. No. 119220,
[September 20, 1996], 330 PHIL 811-824)
SYNOPSIS
In an information filed before the Regional Trial Court (RTC)
of Manila, petitioner was charged with violating Section 3
of Presidential Decree No. 1866 for keeping, possessing
and/or acquiring a hand grenade, without first securing the
necessary license and permit from the proper authorities. On
arraignment, petitioner, assisted by counsel de officio,
entered a plea of not guilty. After trial on the merits, the
court a quo found petitioner guilty of the crime of illegal
possession of explosives under the said law and sentenced
him to suffer the penalty of not less than seventeen years,
four months and one day of reclusion temporal as minimum
and not more than thirty years of reclusion perpetua, as
maximum. Petitioner filed a notice of appeal indicating that
he was appealing to the Supreme Court. However, the record
of the case was forwarded to the Court of Appeals. In its
decision, the Court of Appeals affirmed the trial court's
decision. Unable to accept conviction, petitioner filed the
instant petition alleging that the respondent court erred in
affirming the findings of the trial court that the warrantless
arrest of petitioner was valid and legal.
The Supreme Court finds the petition impressed with merit.
For purposes of determining appellate jurisdiction in criminal
cases, the maximum of the penalty, and not the minimum, is
taken into account. Since the maximum of the penalty is
reclusion perpetua, the appeal therefrom should have been
to the Court and not the Court of Appeals. Hence, the
challenged decision immediately fall in jurisdictional
grounds. Additionally, the Court is convinced that the
prosecution failed to establish petitioner's guilt with moral
certainty. First, serious doubts surrounds the story of police
office Yu that a grenade was found in and seized from
petitioner's possession. Notably, Yu did not identify in court
the grenade he allegedly seized. Second, if indeed petitioner
had a grenade with him and that two days earlier he was
with the group about to detonate an explosive at Plaza
Miranda, it was then unnatural and against common
experience that petitioner simply stood in Plaza Miranda in
proximity to the police officers. Lastly, even assuming that
petitioner admitted possession of the grenade during his
custodial investigation police officer Serapio, such admission
is inadmissible in evidence for it was taken in palpable
violation of Section 12(1) and (3) of Article III of the
Constitution. Verily, the search conducted on petitioner could
not have been one incidental to a lawful arrest. In view
thereof, the challenged decision of the Court of Appeals is
set aside for lack of jurisdiction and on ground of reasonable
doubt.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; APPEAL TO THE
SUPREME COURT; FOR PURPOSES OF DETERMINING APPELLATE
JURISDICTION OF THE SUPREME COURT IN CRIMINAL CASES,
THE MAXIMUM OF THE PENALTY IMPOSABLE BY LAW IS TAKEN
INTO ACCOUNT AND NOT THE MINIMUM. For purposes of
determining appellate jurisdiction in criminal cases, the
maximum of the penalty, and not the minimum, is taken into
account. Since the maximum of the penalty is reclusion
perpetua, the appeal therefrom should have been to
Supreme Court, and not the Court of Appeals, pursuant to
Section 9(3) of the Judiciary Reorganization Act of 1980 (B.P.
Blg. 129), in relation to Section 17 of the Judiciary Act of
1948, Section 5(2) of Article VIII of the Constitution and
Section 3(c) of Rule 122 of the Rules of Court. The term life
imprisonment as used in Section 9 of B.P. Blg. 129, the
Judiciary Act of 1948, and Section 3 of Rule 122 must be
deemed to include reclusion perpetua in view of Section 5(2)
of Article VIII of the Constitution.
2. ID.; ID.; RIGHTS OF THE ACCUSED; PETITIONER'S ADMISSION
OF POSSESSION OF THE GRENADE DURING CUSTODIAL
INVESTIGATION, WITHOUT THE ASSISTANCE OF COUNSEL,
INADMISSIBLE IN EVIDENCE. Even assuming that petitioner
admitted possession of the grenade during his custodial
investigation by police officer Serapio, such admission was
inadmissible in evidence for it was taken in palpable violation
of Section 12(1) and (3) of Article III of the Constitution.
Serapio conducted the custodial investigation on petitioner
the day following his arrest. No lawyer was present and
Serapio could not have requested a lawyer to assist
petitioner as no PAO lawyer was then available. Thus, even if
petitioner consented to the investigation and waived his
rights to remain silent and to counsel, the waiver was invalid
as it was not in writing, neither was it executed in the
presence of counsel.
3. ID.; ID.; WARRANTLESS ARREST; LACK OF PERSONAL
KNOWLEDGE ON THE PART OF THE ARRESTING OFFICER OR AN
OVERT PHYSICAL ACT ON THE PART OF THE ACCUSED,
INDICATING THAT THE CRIME HAD JUST BEEN COMMITTED, OR
WAS GOING TO BE COMMITTED, MAKES THE SEARCH
CONDUCTED ON THE ACCUSED NOT ONE INCIDENTAL TO A
LAWFUL ARREST; CASE AT BAR. In a search incidental to a
lawful arrest, as the precedent arrest determines the validity
of the incidental search, the legality of the arrest is
questioned in a large majority of these cases, e.g., whether
an arrest was merely used as a pretext for conducting a
search. In this instance, the law requires that there first be a
lawful arrest before a search can be made the process
cannot be reversed. At bottom, assuming a valid arrest, the
arresting officer may search the person of the arrestee and
the area within which the latter may reach for a weapon or
for evidence to destroy, and seize any money or property
found which was used in the commission of the crime, or the
fruit of the crime, or that which may be used as evidence, or
which might furnish the arrestee with the means of escaping
or committing violence. Here, there could have been no valid
in flagrante delicto or hot pursuit arrest preceding the search
in light of the lack of personal knowledge on the part of Yu,
the arresting officer, or an overt physical act, on the part of
petitioner, indicating that a crime had just been committed,
was being committed or was going to be committed. Having
thus shown the invalidity of the warrantless arrest in this
case, plainly, the search conducted on petitioner could not
have been one incidental to a lawful arrest.
4. ID.; ID.; ID.; "STOP AND FRISK" AS A "LIMITED PROTECTIVE
SEARCH OF OUTER CLOTHING FOR WEAPONS"; JUSTIFICATION
FOR AND ALLOWABLE SCOPE THEREOF. We now proceed to
the justification for and allowable scope of a "stop-and-frisk"
as a "limited protective search of outer clothing for
weapons," as laid down in Terry, thus: We merely hold today
that where a police officer observes unusual conduct which
leads him reasonably to conclude in light of his experience
that criminal activity may be afoot and that the persons with
whom he is dealing may be armed and presently dangerous,
where in the course of investigating this behavior he
identifies himself as a policeman and makes reasonable
inquiries, and where nothing in the initial stages of the
encounter serves to dispel his reasonable fear for his own or
others' safety, he is entitled for the protection of himself and
others in the area to conduct a carefully limited search of
the outer clothing of such persons in an attempt to discover
weapons which might be used to assault him. Such a search is
a reasonable search under the Fourth Amendment . . . Other
notable points of Terry are that while probable cause is not
required to conduct a "stop and frisk," it nevertheless holds
that mere suspicion or a hunch will not validate a "stop and
frisk." A genuine reason must exist, in light of the police
officer's experience and surrounding conditions, to warrant
the belief that the person detained has weapons concealed
about him. Finally, a "stop-and-frisk" serves a two-fold
interest: the general interest of effective crime prevention
and detection, which underlies the recognition that a police
officer may, under appropriate circumstances and in an
appropriate manner, approach a person for purposes of
investigating possible criminal behavior even without
probable cause; and (2) the more pressing interest of safety
and self-preservation which permit the police officer to take
steps to assure himself that the person with whom he deals is
not armed with a deadly weapon that could unexpectedly
and fatally be used against the police officer.
||| (Malacat y Mandar v. Court of Appeals, G.R. No. 123595,
[December 12, 1997], 347 PHIL 462-492)

SEARCH OF MOVING VEHICLES

7. ID.; ID.; SEARCH WARRANT; LAWFUL SEARCH WITHOUT
SEARCH WARRANT CAN BE EFFECTED. The Tariff and
Customs Code does not require a search warrant for purposes
of enforcing customs and tariff laws. Under Sec. 2203
thereof, persons having police authority may enter, pass
through or search any land, inclosure, warehouse, store or
building not being a dwelling house and also, to inspect,
search and examine any vehicle or aircraft and any trunk,
package, box or envelope or any person on board or stop and
search and examine any vehicle, beast or person suspected of
holding or conveying any dutiable or prohibited article
introduced into the Philippines contrary to law, without
mentioning the need of a search warrant in said cases.
Except in the search of a dwelling house, therefore, persons
exercising police authority under the customs law may effect
search and seizure without search warrant in the
enforcement of customs laws.||| (Papa v. Mago, G.R. No. L-
27360, [February 28, 1968], 130 PHIL 886-905)

EMERGENCY CIRCUMSTANCES
I. The next question that may be asked is
whether or not there was a valid search and
seizure in this case. While the matter has not
been squarely put in issue, we deem it our
bounden duty, in light of advertence thereto by
the parties, to delve into the legality of the
warrantless search conducted by the raiding
them, considering the gravity of the offense for
which herein appellant stands to be convicted
and the penalty sought to be imposed.
It is admitted that the military operatives who
raided the Eurocar Sales Office were not armed
with a search warrant at that time. 15 The raid
was actually precipitated by intelligence reports
that said office was being used as headquarters
by the RAM. 16 Prior to the raid, there was a
surveillance conducted on the premises wherein
the surveillance team was fired at by a group of
men coming from the Eurocar building. When the
military operatives raided the place, the
occupants thereof refused to open the door
despite the requests for them to do so, thereby
compelling the former to break into the
office. 17 The Eurocar Sales Office is obviously
not a gun store and it is definitely not an armory
or arsenal which are the usual depositories for
explosives and ammunition. It is primarily and
solely engaged in the sale of automobiles. The
presence of an unusual quantity of high-powered
firearms and explosives could not be justifiably or
even colorably explained. In addition, there was
general chaos and disorder at that time because
of simultaneous and intense firing within the
vicinity of the office and in the nearby Camp
Aguinaldo which was under attack by rebel
forces. 18 The courts in the surrounding areas
were obviously closed and, for that matter, the
building and houses therein were deserted.
Under the foregoing circumstances, it is out
considered opinion that the instant case falls
under one of the exceptions to the prohibition
against a warrantless search. In the first place,
the military operatives, taking into account the
facts obtaining in this case, had reasonable
ground to believe that a crime was being
committed. There was consequently more than
sufficient probable cause to warrant their action.
Furthermore, under the situation then prevailing,
the raiding team had no opportunity to apply for
and secure a search warrant from the courts. The
trial judge himself manifested that on December
5, 1989 when the raid was conducted, his court
was closed.19 Under such urgency and exigency
of the moment, a search warrant could lawfully
be dispensed with. LexLib

The view that we here take is in consonance with

our doctrinal ruling which was amply explained
in People vs. Malmsted 20 and bears reiteration:
"While it is true that the NARCOM officers were
not alarmed with a search was made over the
personal effects of accused, however, under the
circumstances of the case, there was sufficient
probable cause for said officers to believe that
accused was then and there committing a crime.
"Probable cause has been defined as such facts
and circumstances which would lead a
reasonable, 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. The required
probable cause that will justify a warrantless
search and seizure is not determined by any fixed
formula but is resolved according to the facts of
each case.
"Warrantless search of the personal effects of an
accused has been declared by this Court as valid,
because of existence of probable cause, where
the smell of marijuana emanated from a plastic
bag owned by the accused, or where the accused
was acting suspiciously, and attempted to flee.
"Aside from the persistent reports received by
the NARCOM that vehicles coming from Sagada
were transporting marijuana and other prohibited
drugs, their Commanding Officer also received
information that a Caucasian coming from
Sagada on that particular day had prohibited
drugs in his possession. Said information was
received by the Commanding Officer of NARCOM
the very same morning that accused came down
by bus from Sagada on his way to Baguio
City. llcd
"When NARCOM received the information, a few
hours before the apprehension of herein accused,
that a Caucasian travelling from Sagada to
Baguio City was carrying with him prohibited
drugs, there was no time to obtain a search
warrant. In the Tangliben case, the police
authorities conducted a surveillance at the
Victory Liner Terminal located at Bgy. San Nicolas,
San Fernando, Pampanga, against persons
engaged in the traffic of dangerous drugs, based
on information supplied by some informers.
Accused Tangliben who was acting suspiciously
and pointed out by an informer was apprehended
and searched by the police authorities. It was
held that when faced with on-the-spot
information, the police officers had to act quickly
and there was no time to secure a search
warrant.
"It must be observed that, at first, the NARCOM
officers merely conducted a routine check
passengers therein, and no extensive search was
initially made. It was only when one of the
officers noticed a bulge on the waist of accused,
during the course of the inspection, that accused
was required to present his passport. The failure
of accused to present his identification papers,
when ordered to do so, only managed to arouse
the suspicion of the officer that accused was
trying to hide his identity. For is it not a regular
norm for an innocent man, who has nothing to
hide from the authorities, to readily present his
identification papers when required to do so?
"The receipt of information by NARCOM that a
Causasian coming from Sagada had prohibited
drugs in his possession, plus the suspicious
failure of the accused to produce his passport,
taken together as a whole, led the NARCOM
officers to reasonably believe that the accused
was trying to hide something illegal from the
authorities. From these circumstances arose a
probable cause which justified the warrantless
search that was made on the personal effects of
the accused. In other words, the acts of the
NARCOM officers in requiring the accused to open
his pouch bag and in opening one of the wrapped
objects found inside said bag (which was
discovered to contain hashish) as well as the two
(2) teddy bears with hashish stuffed inside the,
were prompted by accused's own attempt to hide
his identity by refusing to present his passport,
and by the information received by the NARCOM
that a Caucasian coming from Sagada had
prohibited drugs in his possession. To deprive the
NARCOM agents of of the ability and facility to
act accordingly, including, to search even without
warrant, in the light of such circumstances, would
be to sanction impotence and ineffectiveness in
law enforcement, to the detriment of society."
In addition, we find the principles enunciated
in Umil, et al. vs. Ramos, et al., 21 applicable, by
analogy, to the present case:
"The arrest of persons involved in the rebellion
whether as its fighting armed elements, or for
committing non-violent acts but in furtherance of
the rebellion, is more an act of capturing them in
the course of an armed conflict, to quell the
rebellion, than for the purpose of immediately
prosecuting them in court for a statutory offense.
The arrest, therefore, need not follow the usual
procedure in the prosecution of offenses which
requires the determination by a judge of the
existence of probable cause before the issuance
of a judicial warrant of arrest and the granting of
bail if the offense is bailable. Obviously the
absence of a judicial warrant is no legal
impediment to arresting or capturing persons
committing overt acts of violence against
government forces, or any other milder acts but
really in pursuance of the rebellious movement.
The arrest or capture is thus impelled by the
exigencies of the situation that involves the very
survival of society and its government and duly
constituted authorities. If killing and other acts of
violence against the rebels find justification in the
exigencies of armed hostilities which (are) of the
essence of waging a rebellion or insurrection,
most assuredly so in case of invasion, merely
seizing their persons and detaining them while
any of these contigencies continues cannot be
less justified."
III. As earlier stated, it was stipulated and
admitted by both parties that from November 30,
1989 up to and until December 9, 1989, there
was a rebellion. Ergo, our next inquiry is whether
or not appellant's possession of the firearms,
explosives and ammunition seized and recovered
from him was for the purpose and in furtherance
of rebellion.
The trial court found accused guilty of illegal
possession of firearms in furtherance of rebellion
pursuant to paragraph 2 of Article 135 of the
Revised Penal Code which states that "any
person merely participating or executing the
command of others in a rebellion shall suffer the
penalty of prision mayor in its minimum period."
The court below held that appellant De Gracia,
who has been servicing the personal needs of Co.
Matillano (whose active armed opposition against
the Government, particularly at the Camelot
Hotel, was well known), is guilty of the act of
guarding the explosives and "molotov" bombs for
and in behalf of the latter. We accept this finding
of the lower court. LexLib
The above provision of the law was, however,
erroneously and improperly used by the court
below as a basis in determining the degree of
liability of appellant and the penalty to be
imposed on him. It must be made clear that
appellant is charged with the qualified offense of
illegal possession of firearms in furtherance of
rebellion under Presidential Decree No.
1866 which, in law, is distinct from the crime of
rebellion punished under Articles 134 and 135 of
the Revised Penal Code. These are two separate
statutes penalizing different offenses with
discrete penalties. The Revised Penal Code treats
rebellion as a crime apart from murder, homicide,
arson, or other offenses, such as illegal
possession of firearms, that might conceivably be
committed in the course of a
rebellion. Presidential Decree No. 1866 defines
and punishes, as a specific offense, the crime of
illegal possession of firearms committed in the
course or as part of a rebellion. 22
As a matter of fact, in one case involving the
constitutionality of Section 1 of Presidential
Decree No. 1866, the Court has explained that
said provision of the law will not be invalidated
by the mere fact that the same act is penalized
under two different statutes with different
penalties, even if considered highly
advantageous to the prosecution and onerous to
the accused. 23 It follows that, subject to the
presence of the requisite elements in each case,
unlawful possession of an unlicensed firearm in
furtherance of rebellion may give rise to separate
prosecutions for a violation of Section 1
of Presidential Decree No. 1866, and also a
violation of Articles 134 and 135 of the Revised
Penal Code on rebellion. Double jeopardy in this
case cannot be invoked because the first is an
offense punished by a special law while the
second is a felony punished by the Revised Penal
Code, 24 with variant elements.
It was a legal malapropism for the lower court to
interject the aforestated provision of the Revised
Penal Code in this prosecution for a crime under
a special law. Consequently, there is no basis for
its recommendation for executive clemency in
favor of appellant De Gracia after he shall have
served a jail term of five years with good
behavior. In any event, this is a matter within the
exclusive prerogative of the President whose
decision thereon should be insulated against any
tenuous importunity. Withal, we are duly
convinced that the firearms, explosives and
ammunition confiscated from appellant De Gracia
were illegally possessed by him in furtherance of
the rebellion then admittedly existing at that
time. In the words of the court a quo:
"2. the nature and quantity of the items 5
bundles of C-4 dynamites, 6 cartons of M-16
ammo and 100 bottles of molotov bombs indicate
that the reports received by the military that the
Eurocar Sales Building was being used by the
rebels was not without basis. Those items are
clearly not for one's personal defense. They are
for offensive operations. De Gracia admitted that
per instruction of Col. Matillano he went down to
Eurocar Sales Building from Antipolo to stay
guard there.
"His manifestation of innocence of those items
and what he had been guarding in that office is
not credible for: (a) he was a former military
personnel; (b) at the birthday party of Col.
Matillano on November 30, 1989 may soldiers
and ex-soldiers were present which self-evidently
discloses that De Gracia, in the company of his
boss, was till very much at home and constantly
in touch with soldiers and the armed rebellion of
November 30, 1989 to December 8 or 9, 1989
was a military coup d'etat; (c) it appears that he
is the only person tasked with caretaking (sic)
there in the Matillano office, which shows that he
is a highly trusted right-hand man of Col.
Matillano; and (d) as heretofore discussed, de
Gracia was earlier seen with some who fired upon
a car of the AFP intelligence agents." 25

Presidential Decree No. 1866 imposes the death

penalty where the illegal possession of firearms
and ammunition is committed in furtherance of
rebellion. At the time the offense charged in this
case was committed under the governance of
that law, the imposition of the death penalty was
prescribed by the Constitution. Consequently,
appellant De Gracia could only sentenced to
serve the penalty of reclusion perpetua which
was correctly meted out by the trial court, albeit
with an erroneous recommendation in connection
therewith. cdrep
||| (People v. De Gracia, G.R. Nos. 102009-10,
[July 6, 1994])

XXXX
SYNOPSIS
This is a petition for review of the decision of the
court of Appeals in CA G.R. CR No. 13976 dated
January 16, 1995 which affirmed in toto the
judgment of the Regional Trial Court of Manila,
Branch 1, convicting petitioner Rodolfo Espano
for violation of Article II Section 8 of Republic Act
No. 6425, as amended, otherwise known as
theDangerous Drugs Act of 1972. The records of
the case reveal that herein petitioner was caught
in possession of and under his custody twelve
plastic cellophane bags weighing 5.5 grams
containing crushed flowering tops, marijuana
which is a prohibited drug. In his appeal before
the Supreme Court, petitioner contends that the
trial and appellate courts erred in convicting him
because (1) the pieces of evidence seized were
inadmissible; (2) the superiority of his
constitutional right to be presumed innocent over
the doctrine of presumption of regularity; (3) he
was denied the constitutional right of
confrontation and to compulsory process; and (4)
his conviction was based on evidence which was
irrelevant and not properly identified. CIScaA
The Supreme Court finds that there was no
compelling reason to reverse the decisions of the
trial and appellate courts. In this case, the
findings of the trial court that the prosecution
witnesses were more credible than those of the
defense must stand. Petitioner failed to show that
Pat. Romeo Pagilagan, in testifying against him,
was motivated by reasons other than his duty to
curb drug abuse and had any intent to falsely
impute to him such a serious crime as possession
of prohibited drugs. In the absence of such ill
motive, the presumption of regularity in the
performance of his official duty must prevail.
Furthermore, the defense of alibi set up by
petitioner deserved scant consideration. He
simply contended that he was in his house
sleeping at the time of the incident. Lastly, the
two cellophane bags of marijuana seized were
admissible in evidence because he was caught
in flagranti as a result of a buy-bust operation
conducted by police officers. However, as for the
other ten cellophane bags of marijuana found at
petitioner's residence, the same are inadmissible
in evidence considering that the said bags were
seized at petitioner's house after his arrest,
hence, do not fall under the exceptions provided
under Article III, Section 2 of the 1987
Constitution. In view thereof, the instant petition
is denied and the challenged decision is affirmed
with modification as to the penalty.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF
WITNESSES; FINDINGS OF TRIAL COURTS ON THE
CREDIBILITY OF WITNESSES DESERVE A HIGH
DEGREE OF RESPECT; CASE AT BAR. It is a
well-settled doctrine that findings of trial courts
on the credibility of witness deserve a high
degree of respect. Having observed the
deportment of witnesses during the trial, the trial
judge is in a better position to determine the
issue of credibility and, thus, his findings will not
be disturbed during appeal in the absence of any
clear and showing that he had overlooked,
misunderstood or misapplied some facts or
circumstances of weight and substance which
could have altered the conviction of the
appellants. In this case, the findings of the trial
court that the prosecution witnesses were more
credible that those of the defense must stand.
Petitioner failed to show that Pat. Pagilagan, in
testifying against him, was motivated by reasons
other than his duty to curb drug abuse and had
any intent to falsely impute to him such a serious
crime as possession of prohibited drugs. In the
absence of such ill motive, the presumption of
regularity in the performance of his official duty
must prevail.
2. ID.; ID.; ID.; CLAIM OF FRAME-UP, LIKE ALIBI, IS
A DEFENSE THAT HAS BEEN INVARIABLY VIEWED
BY THE COURT WITH DISFAVOR; CASE AT BAR.
The defense set up by petitioner does not
deserve any consideration. He simply contended
that he was in his house sleeping at the time of
the incident. This court has consistently held that
alibi is the weakest of all defenses; and for it to
prosper, the accused has the burden of proving
that he was not at the scene of the crime at the
time of its commission and that it was physically
impossible for him to be there. Moreover, the
"claim of 'frame-up,' like alibi, is a defense that
has been invariably viewed by the Court with
disfavor for it can just as easily be concocted but
difficult to prove, and is a common and standard
line of defense in most prosecutions arising from
violations of the Dangerous Drugs Act." No clear
and convincing evidence was presented by
petitioner to prove his defense of alibi.
3. ID.; CRIMINAL PROCEDURE; WARRANTLESS
ARREST; THE MARIJUANA SEIZED FROM
PETITIONER'S HOUSE AFTER HIS ARREST IS
INADMISSIBLE IN EVIDENCE; CASE AT BAR.
The 1987 Constitution guarantees freedom
against unreasonable searches and seizures
under Article III, Section 2 which provides: "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." An exception to the said rule is a
warrantless search incidental to a lawful arrest of
dangerous weapons or anything which may be
used as proof of the commission of an offense. It
may extend beyond the person of the one
arrested to include the premises or surroundings
under his immediate control. In this case, the ten
cellophane bags of marijuana seized at
petitioner's house after his arrest at Pandacan
and Zamora Streets do not fall under the said
exceptions. . . . The articles seized from
petitioner during his arrest were valid under the
doctrine of search made incidental to a lawful
arrest. The warrantless search made in his house,
however, which yielded ten cellophane bags of
marijuana became unlawful since the police
officers were not armed with a search warrant at
the time. Moreover, it was beyond the reach and
control of petitioner. HTScEI
4. CRIMINAL LAW; REPUBLIC ACT NO. 6425 AS
AMENDED BY REPUBLIC ACT 7659; IF THE
QUANTITY OF MARIJUANA INVOLVED IS LESS
THAN 750 GRAMS, THE IMPOSABLE PENALTY
RANGES FROM PRISION
CORRECTIONAL TO RECLUSION TEMPORAL; CASE
AT BAR. This Court finds petitioner Rodolfo
Espano guilty beyond reasonable doubt of
violating Article II, Section 8, in relation to Section
2 (e-L)(I) of Republic Act No. 6425, as amended.
Under the said provision, the penalty imposed is
six years and one day to twelve years and a fine
ranging from six thousand to twelve thousand
pesos. With the passage of Republic Act No.
7659, which took effect on December 31, 1993,
the imposable penalty shall now depend on the
quantity of drugs recovered. Under the provisions
of Republic Act No. 7659, Section 20, and as
interpreted in People v. Simon (234 SCRA 555
[1994]) and People v. Lara, (236 SCRA 291
[1994]) if the quantity of marijuana involved is
less than 750 grams, the imposable penalty
ranges from prision correccional to reclusion
temporal. Taking into consideration that
petitioner is not a habitual delinquent, the
amendatory provision is favorable to him and the
quantity of marijuana involved is less than 750
grams, the penalty imposed under Republic Act
No. 7659 should be applied.
5. ID.; ID.; PROPER PENALTY THEREOF; CASE AT
BAR. There being no mitigating nor
aggravating circumstances, the imposable
penalty shall be prision correccionalin its medium
period. Applying the Indeterminate Sentence
Law, the maximum penalty shall be taken from
the medium period of prision correccional, which
is two (2) years, four (4) months and one (1) day
to four (4) years and two (2) months, while the
minimum shall be taken from the penalty next
lower in degree, which is one (1) month and one
(1) day to six (6) months of arresto
mayor. cSDHEC
||| (Espano v. Court of Appeals, G.R. No. 120431,
[April 1, 1998], 351 PHIL 798-809)
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT
AGAINST UNLAWFUL SEARCH AND SEIZURE;
REQUISITES FOR ISSUANCE OF SEARCH
WARRANT. Under the Constitution "no search
warrant shall issue but 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". More emphatic and detailed is the
implementing rule of the constitutional
injunction, Section 4 of Rule 126 which provides
that the 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.
2. ID.; ID.; ID.; ID.; INSUFFICIENCY OF AFFIDAVITS
OF COMPLAINANT AND HIS WITNESSES IN THE
CASE AT BAR. Before issuing a search warrant,
the examining Judge has to take depositions in
writing of the complainant and the witnesses he
may produce and to 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,
and to hold liable for perjury the person giving it
if it will be found later that his declarations are
false. Mere affidavits of the complainant and his
witnesses are thus not sufficient.
3. ID.; ID.; ID.; ID.; NO "DEPOSITION IN WRITING"
ATTACHED TO RECORDS OF CASE IN CASE AT
BAR. The judge's insistence that she examined
the complainants under oath has become
dubious by petitioner's claim that at the
particular time when he examined all the
relevant papers connected with the issuance of
the questioned search warrant, after he
demanded the same from the lower court since
they were not attached to the records, he did not
find any certification at the back of the joint
affidavit of the complainants. Before he filed his
motion to quash the search warrant and for the
return of the articles seized, he was furnished,
upon his request, certified true copies of the said
affidavits by the Clerk of Court but which certified
true copies do not bear any certification at the
back. Petitioner likewise claims that his xerox
copy of the said joint affidavit obtained at the
outset of this case does not show also the
certification of respondent judge. This doubt
becomes more confirmed by respondent Judge's
own admission, while insisting that she did
examine thoroughly the applicants, that "she did
not take the deposition of Mayote and Goles
because to have done so would be to hold a
judicial proceeding which will be open and
public", such that, according to her, the persons
subject of the intended raid will just disappear
and move his illegal operations somewhere else.
Could it be that the certification was made
belatedly to cure the defect of the warrant? Be
that as it may, there was no "deposition in
writing" attached to the records of the case in
palpable disregard of the statutory prohibition
heretofore quoted.
4. ID.; ID.; ID.; ID.; DEPOSITIONS, HOW TAKEN.
The 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.
5. ID.; ID.; ID.; ID.; MUST BE STRICTLY COMPLIED
WITH; CASE AT BAR. Nothing can justify the
issuance of the search warrant but the fulfillment
of the legal requisites. Thus, in issuing a search
warrant the Judge must strictly comply with the
requirements of the Constitution and the
statutory provisions. In the case at bar, the
search warrant is tainted with illegality by the
failure of the Judge to conform with essential
requisites of taking the depositions in writing and
attaching them to record, rendering the search
warrant invalid.
6. ID.; ID.; ID.; ALTHOUGH ILLEGAL, THINGS
SEIZED CANNOT BE RETURNED; CASE AT BAR.
While the search warrant is illegal, the return of
the things seized cannot be ordered. In Castro vs.
Pabalan (70 SCRA 478), it was held that the
illegality of the search warrant does not call for
the return of the things seized, the possession of
which is prohibited.
||| (Mata v. Bayona, G.R. No. 50720, [March 26,
1984], 213 PHIL 348-355)
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; IN CASE AT BAR;
FAILURE TO PRESENT POSEUR-BUYER FATAL TO
PROSECUTION'S CASE. Foremost among the
inadequacies of the prosecution is its failure to
call to the witness stand PO1 Verando Luna, the
alleged poseur-buyer. There is, thus, a total
absence of evidence to establish the purported
sale of shabu by accused-appellant to Venerando
Luna, the supposed poseur-buyer. The omission
to present the poseur-buyer casts serious doubts
that an illegal sale of a dangerous drug actually
took place. The trial court gave much weight to
the testimonies of the police members of the
buy-bust operation. However, the prosecution did
not present as witness the supposed poseur-
buyer. Such omission casts serious doubt on
appellant's guilt because without the testimony
of the poseur-buyer, there is not convincing
evidence to show that appellant sold marijuana.
The testimonies of the rest of the buy-bust
operation are hearsay in view of the fact that the
poseur-buyer was never presented at the trial.
There was even no testimony that when the
accused-appellant handed the stuff to the
poseur-buyer that the latter in turn handed the
marked money. The failure of the prosecution to
present the alleged buyer of the marijuana was a
fatal flaw in the case against the accused.(People
vs. Fulgarillas, 212 SCRA 76, 80 [1992]) The
testimony of prosecution witness PO3 Rogelio
Francisco that Veneracion Luna, the alleged
poseur-buyer, bought shabu from accused-
appellant was derived solely from what Luna
supposedly told him (pp. 19-20, tsn., December
11, 1991) and, therefore, is patently hearsay
evidence, without any evidentiary weight
whatsoever. Likewise, the statements of
prosecution witnesses Policemen Reynaldo de la
Cruz, Raymundo Untiveros, and Eduardo Novera,
Jr. as to the alleged sale of shabu are hearsay,
without weight, as all of them were not present
during the alleged sale.
2. ID.; ID.; CREDIBILITY OF WITNESSES; IN CASE
AT BAR, PROSECUTION'S VERSION OF "BUY-BUST"
OPERATION HIGHLY INCREDIBLE. According to
the version of the prosecution, during the alleged
buy-bust operation, accused-appellant handed
over to Veneracion Luna, the alleged poseur-
buyer, a quantity of shabu, and Luna in turn paid
accused-appellant a marked 100 bill and then
returned to the police station and informed the
raiding team that he had already bought the
shabu from accused-appellant. Thereupon, the
raiding team proceeded to the house of accused-
appellant to implement the search warrant. The
version of the prosecution is highly incredible.
The record is devoid of any reason why the police
officers did not make any attempt to arrest
accused-appellant at the time he allegedly sold
the shabu to Veneracion Luna who was
accompanied by another police officer. That was
the opportune moment to arrest accused-
appellant. The version foisted by the prosecution
upon this Court is contrary to human experience
in the ordinary course of human conduct. The
usual procedure in a buy-bust operation is for the
police officers to arrest the pusher of drugs at the
very moment he hands over the dangerous drug
to the poseur-buyer. That is the every reason why
such a police operation is called a "buy-bust"
operation. The police poseur-buyer "buys"
dangerous drugs from the pusher and "bust"
(arrests) him the moment the pusher hands over
the drug to the police officer.
3. ID.; ID.; WEIGHT AND SUFFICIENCY OF
EVIDENCE; IN CASE AT BAR, PRESUMPTION OF
INNOCENCE IN FAVOR OF ACCUSED NOT
OVERTHROWN. The manner the police officers
conducted the subsequent and much-delayed
search is highly irregular. Upon barging into the
residence of accused-appellant, the police
officers found him lying down and they
immediately arrested and detained him in the
living room while they searched the other parts
of the house. Although they fetched two persons
to witness the search, the witnesses were called
in only after the policemen had already entered
accused-appellant's residence (pp. 22-23, tsn,
December 11, 1991), and, therefore, the
policemen had more than ample time to plant the
shabu. Corollary to the constitutional precept
that, in all criminal prosecutions, the accused
shall be presumed innocent until the contrary is
proved (Sec. 14(2), Article III, Constitution of the
Republic of the Philippines) is the rule that in
order to convict an accused the circumstances of
the case must exclude all and each and every
hypothesis consistent with his innocence (People
vs. Tanchoco; 76 Phil. 463 [1946]; People vs.
Constante, 12 SCRA 653 [1964]; People vs.
Jara, 144 SCRA 516 [1986]). The facts of the case
do not rule out the hypothesis that accused-
appellant is innocent.
4. ID.; CRIMINAL PROCEDURE; JUDGMENT;
ACCUSED CANNOT BE CONVICTED OF CRIME NOT
CHARGED IN THE INFORMATION. Accused-
appellant cannot be convicted of possession of
the shabu contained in a canister and allegedly
seized at his house, for the charge against him
was for selling shabu with the information
alleging that the "accused, without legal
authority did Hydrocholoride." Sale is totally
different from possession. Article 1458 of the Civil
Code defines sale as a contract whereby "one of
the contracting parties obligates himself to
transfer the ownership of and to deliver a
determinate thing, and the other to pay therefor
a price certain in money or its equivalent", while
"possession is the holding of a thing or the
enjoyment of a right" as defined by Article 523 of
the Civil Code. Accused-appellant cannot be
convicted of a crime which is not charged in the
information for to do so would deny him the due
process of law (People vs. Despavellador, 2 SCRA
205 [1961];People vs. Mori, 55 SCRA 382 [1974]).
5. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT
AGAINST UNREASONABLE SEARCHES AND
SEIZURES; EXCLUSION IN EVIDENCE OF
ILLEGALLY SEIZED ARTICLES. The search
warrant implemented by the raiding party
authorized only the search and seizure of ".. the
described quantity of Methamphetamine
Hydrochloride commonly known as shabu and its
paraphernalia" (Exh. O, p. 50, original record).
Thus, the raiding party was authorized to seize
only shabu and paraphernalia for the use thereof
and no other. A search warrant is not a sweeping
authority empowering a raiding party to
undertake a fishing expedition to seize and
confiscate any and all kinds of evidence or
articles relating to a crime. The Constitution itself
(Section 2, Article III) and the Rules of Court
(Section 3, Rule 126) specifically mandate that
the search warrant must particularly describe the
things to be seized. Thus, the search warrant was
no authority for the police officers to seize the
firearm which was not mentioned, much less
described with particularly, in the search warrant.
Neither may it be maintained that the gun was
seized in the course of an arrest, for as earlier
observed, accused-appellant's arrest was far
from regular and legal. Said firearm, having been
illegally seized, the same is not admissible in
evidence (Stonehill vs. Diokno, 20 SCRA 383
[1967]). The Constitution expressly ordains the
exclusion in evidence of illegally seized articles.
Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any
purpose in any proceeding.(Section 3 [2], Article
III, Constitution of the Republic of the
Philippines).With the exclusion in evidence of the
illegally seized firearm, there is, therefore, a total
absence of evidence to support the charge of
illegal possession of firearm, against accused-
appellant. The same way may be said of the
charge of illegal possession of ammunition.
||| (People v. Del Rosario y Lopez, G.R. No.
109633, [July 20, 1994])