Topic: Search and Seizure > Types > Through Search
Warrant > Requisites for Issuance > Determining  Two days later, Josefino Roan’s house was searched but none of the
Probable Cause > Process
Case No.: G.R. No. 71410. November 25, 1986.
Case Name: Roan v Gonzales
Full Case Name: JOSEFINO S. ROAN, petitioner, vs. THE
HONORABLE ROMULO T. GONZALES,
PRESIDING JUDGE, REGIONAL TRIAL COURT OF
MARINDUQUE, BRANCH XXXVIII; THE
PROVINCIAL FISCAL OF MARINDUQUE; THE
PROVINCIAL COMMANDER, PC-INP
MARINDUQUE, respondents.
Ponente: Cruz, J.
Doctrine: The examination must be probing and exhaustive, not
merely routinary or pro-forma, if the claimed
probable cause is to be established. The examining
magistrate must not simply rehash the contents of the
affidavit but must make his own inquiry on the intent
and justification of the application.
. SEC. 4. Examination of the applicant. — The municipal or city judge must,
RELEVANT FACTS
 May 10, 1984 – the search warrant in question was issued by the Judge
Romulo Gonzales.
o The application for the said search warrant was personally
filed by PC Capt. Mauro Quillosa. There were two witnesses,
Esmael Morada and Jesus Tohilida, who presented to
respondent judge their respective affidavits taken by police
investigator Pat. Josue V. Lining.
o At the time of application, the application was not yet
subscribed and sworn to. Judge Gonzales proceeded to
examine Captain Quillosa on the contents of the affidavits to
ascertain, among others, if he knew and understood the same.
o Afterwards, Quillosa subscribed and swore to the same
before him.
articles listed in the warrant was discovered.
o However, the officers who conducted the search found in the
premises one Colt Magnum revolver and eighteen live bullets
which they confiscated.
o They are now the bases of the charge against the petitioner.
ISSUE
1. Whether the Respondent Judge failed to comply with the proper
procedure in issuing the search warrant.
RATIO DECIDENDI
YES. The inclusion of the requirement for the "examination under oath or
affirmation of the complainant and the witnesses he may produce" was a
refinement proposed by Delegate Vicente J. Francisco in the1934
Constitutional Convention for the purpose of strengthening of the guaranty
against unreasonable searches and seizures.
Implementing this requirement, the Rules of Court provided in what was then
Rule 126:
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.
By Judge Gonzalez’s own account, what he did was question Captain Quillosa
on the contents of his affidavit only "to ascertain, among others, if he knew
and understood the same," and only because "the application was not yet
subscribed and swom to." The suggestion is that he would not have asked any
questions at all if the affidavit had already been completed when it was
submitted to him. In any case, he did not ask his own searching questions. He
limited himself to the contents of the affidavit. He did not take the applicant's
deposition in writing and attach them to the record, together with the affidavit
presented to him.
It is axiomatic that the examination must be probing and exhaustive, not
merely routinary or pro-forma, if the claimed probable cause is to be
established. The examining magistrate must not simply rehash the contents of
the affidavit but must make his own inquiry on the intent and justification of
the application.
May 10, 1984, is hereby declared null and void and accordingly set aside.
Our restraining order of August 6,1985, is made permanent. No costs.
SO ORDERED.

A study of the depositions taken from witnesses Esmael Morada and Jesus NO SEPARATE OPINION
Tohilida, who both claimed to be "intelligence informers," shows that they
were in the main a mere restatement of their allegations in their affidavits,
except that they were made in the form of answers to the questions put to them
by the respondent judge. Significantly, the meaningful remark made by
Tohilida that they were suspicious of the petitioner because he was a follower
of the opposition candidate in the forthcoming election did not excite the
respondent judge's own suspicions. This should have put him on guard as to
the motivations of the witnesses and alerted him to possible
misrepresentations from them.

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

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

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

DISPOSITIVE

WHEREFORE, Search Warrant No. 1-84 issued by the respondent judge on