People v Inting Facts: On 6 February 1988, Mrs. Editha Barba filed a letter-complaint against OIC-Mayor Dominador S. Regalado Jr.

of Tanjay, Negros Oriental with the Commission on Elections (COMELEC), for allegedly transferring her, a permanent Nursing Attendant, Grade I, in the office of the Municipal Mayor to a very remote barangay and without obtaining prior permission or clearance from COMELEC as required by law. Acting on the complaint, COMELEC directed Atty. Gerardo Lituanas, Provincial Election Supervision of Dumaguete City: (1) to conduct the preliminary investigation of the case; (2) to prepare and file the necessary information in court; (3) to handle the prosecution if the evidence submitted shows a prima facie case and (3) to issue a resolution of prosecution or dismissal as the case may be. After a preliminary investigation of Barbas complaint, Atty. Lituanas found a prima facie case. Hence, on 26 September 1988, he filed with the Regional Trial Court (Branch 38. Dumaguete City) a criminal case for violation of section 261, Paragraph (h), Omnibus Election Code against the OIC-Mayor. In an Order dated 30 September 1988, the court issued a warrant of arrest against the OIC Mayor. It also fixed the bail at P5,000.00 as recommended by the Provincial Election Supervisor. However, in an order dated 3 October 1988 and before the accused could be arrested, the trial court set aside its 30 September 1988 order on the ground that Atty. Lituanas is not authorized to determine probable cause pursuant to Section 2, Article III of the 1987 Constitution. The court stated that it will give due course to the information filed in this case if the same has the written approval of the Provincial Fiscal after which the prosecution of the case shall be under the supervision and control of the latter. In another order dated 22 November 1988, the court gave Atty. Lituanas 15 days from receipt to file another information charging the same offense with the written approval of the Provincial Fiscal. Atty. Lituanas failed to comply with the order. Hence, in an order dated 8 December 1988, the trial court quashed the information. A motion for reconsideration was denied. Hence, the petition. Issue: Whether the approval of the Provincial Fiscal is necessary before the information filed by the Provincial Election Supervisor may be given due course by the trial court. Held: As to the constitutional mandate that xx no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge xx, (Article III, Section 2, Constitution) the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this determination. On the other hand, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the determination of probable cause. The Judge does not have to follow what the Prosecutor presents to him. By itself, the Prosecutors certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents behind the Prosecutors certification which are material in assisting the Judge to make his determination. Thus, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper - whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not be should be subjected to the expense, rigors and embarrassment of trial is the function of the Prosecutor. Preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecutions job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the judge. The 1987 Constitution (Article IX C, Section 2) mandates the COMELEC not only to investigate but also to prosecute cases of violation of election laws. This means that the COMELEC is empowered to conduct preliminary investigations in cases involving election offenses for the purpose of helping the Judge determine probable cause and for filing an information in court. This power is exclusive with COMELEC. It is only after a preliminary examination conducted by the COMELEC through its officials or its deputies that section 2, Article III of the 1987 Constitution comes in. This is so, because, when the application for a warrant of arrest is made and the information is filed with the court, the judge will then determine whether or not a probable cause exists for the issuance of a warrant of arrest. The trial court misconstrued the constitutional provision when it quashed the information filed by the Provincial Election Supervisor. The order to get the approval of the Provincial Fiscal is not only superfluous but unwarranted. Lim vs. Felix -On March 17, 1989, at about 7:30 o'clock in the morning, at the vicinity of the airport road of theMasbate Domestic Airport, located at the municipality of Masbate province of Masbate,Congressman Moises Espinosa, Sr. and his security escorts, namely Provincial Guards AntonioCortes, Gaspar Amaro, and Artemio Fuentes were attacked and killed by a lone assassin. DanteSiblante another security escort of Congressman Espinosa, Sr. survived the assassination plot, although, he himself suffered a gunshot wound. -An investigation of the incident then followed. -Thereafter, and for the purpose of preliminary investigation, the designated investigator, HarryO. Tantiado, TSg, of the PC Criminal Investigation Service at Camp Bagong Ibalon Legazpi City filed an amended complaint with the Municipal Trial Court of Masbate accusing, among others,Vicente Lim, Sr., Mayor Susana Lim of Masbate, Jolly T. Fernandez, Florencio T. Fernandez, Jr.,Nonilon A. Bagalihog, Mayor Nestor C. Lim and Mayor Antonio Kho of the crime of multiple murder and frustrated murder in connection with the airport incident. The case was docketed as Criminal Case No. 9211. -After conducting the preliminary investigation, the court issued an order dated July 31, 1989 stating therein that: . . . after weighing the affidavits and answers given by the witnesses for the prosecution during the preliminary examination in searching questions and answers,

concludes that a probable cause has been established for the issuance of a warrant of arrest of named accused in the amended complaint, namely, Jimmy Cabarles, Ronnie Fernandez, Nonilon Bagalihog, Jolly Fernandez, Florencio Fernandez, Jr., Vicente Lim, Sr., Susana Lim, Nestor Lim, Antonio Kho, Jaime Liwanag, Zaldy Dumalag and Rene Tualla alias Tidoy. - Petitioners Vicente Lim, Sr. and Susana Lim filed with the respondent court several motions and manifestations which in substance prayed that an order be issued requiring the transmittal of the initial records of the preliminary inquiry or investigation conducted by the Municipal Judge Barsaga of Masbate for the best enlightenment regarding the existence of a probable cause or prima facie evidence as well as the determination of the existence of guilt, pursuant to the mandatory mandate of the constitution that no warrant shall be issued unless the issuing magistrate shall have himself been personally convinced of such probable cause In another manifestation, the Lims reiterated that the court conduct a hearing to determine if there really exists a prima facie case against them in the light of documents which are recantations of some witnesses in the preliminary investigation. - It should also be noted that the Lims also presented to the respondent Judge documents of recantation of witnesses whose testimonies were used to establish a prima facie case against them. -On July 5, 1990, the respondent court issued an order denying for lack of merit the motions and manifestations and issued warrants of arrest against the accused including the petitioners herein. The judge wrote, In the instant cases, the preliminary investigation was conducted by the Municipal Trial Court of Masbate, Masbate which found the existence of probable cause that the offense of multiple murder was committed and that all the accused are probably guilty thereof, which was affirmed upon review by the Provincial Prosecutor who properly filed with the Regional Trial Court four separate informations for murder. Considering that both the two competent officers to whom such duty was entrusted by law have declared the existence of probable cause, each information is complete in form and substance, and there is no visible defect on its face, this Court finds it just and proper to rely on the prosecutor's certification in each information -Petitioners question the judgment of Judge Felix (statement immediately preceding this paragraph, italicized). ISSUE: WON 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. RULING: The questioned Order of respondent Judge Nemesio S. Felix of Branch 56, Regional Trial Court of Makati dated July 5, 1990 is declared NULL and VOID and SET ASIDE. RD: As held in Soliven v. Makasiar, 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 necessary documents and a report supporting the Fiscal's bare certification. All of these should be before the Judge. We cannot determine beforehand how cursory or exhaustive the Judge's examination should be. Usually, this depends on the circumstances of each case. The Judge has to exercise sound discretion; after all, the personal determination is vested in the Judge by the Constitution. However, to be sure, the Judge must go beyond the Prosecutor's certification and investigation report whenever necessary. As mentioned in the facts (stated above), the Lims presented documents of recantations of the witnesses. 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 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. In making the required personal determination, a Judge is not precluded from relying on the evidence earlier gathered by responsible officers. The extent of the reliance depends on the circumstances of each case and is subject to the Judge's sound discretion. However, the Judge abuses that discretion when having no evidence before him, he issues a warrant of arrest. Indubitably, the respondent Judge (Felix) committed a grave error when he relied solely on the Prosecutor's certification and issued the questioned Order dated July 5, 1990 without having before him any other basis for his personal determination of the existence of a probable cause. Salazar v Achacoso Facts: Rosalie Tesoro of Pasay City in a sworn statement filed with the POEA, charged petitioner with illegal recruitment. Public respondent Atty. Ferdinand Marquez sent petitioner a telegram directing him to appear to the POEA regarding the complaint against him. On the same day, after knowing that petitioner had no license to operate a recruitment agency, public respondent Administrator Tomas Achacoso issued a Closure and Seizure Order No. 1205 to petitioner. It stated that there will a seizure of the documents and paraphernalia being used or intended to be used as the means of committing illegal recruitment, it having verified that petitioner has (1) No valid license or authority from the Department of Labor and Employment to recruit and deploy workers for overseas employment; (2) Committed/are committing acts prohibited under Article 34 of the New Labor Code in relation to Article 38 of the same code. A team was then tasked to implement the said Order. The group, accompanied by mediamen and Mandaluyong policemen, went to petitioners residence. They served the order to a certain Mrs. For a Salazar, who let them in. The team confiscated assorted costumes. Petitioner filed with POEA a letter requesting for the return of the seized properties, because she was not given prior notice and hearing. The said Order violated due process. She also alleged that it violated sec 2 of the Bill of Rights, and the properties were confiscated against her will and were done with unreasonable force and intimidation. Issue: Whether or Not the Philippine Overseas Employment Administration (or the Secretary of Labor) can validly issue warrants of search and seizure (or arrest) under Article 38 of the Labor Code

Held: Under the new Constitution, . . . 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. Mayors and prosecuting officers cannot issue warrants of seizure or arrest. The Closure and Seizure Order was based on Article 38 of the Labor Code. The Supreme Court held, We reiterate that the Secretary of Labor, not being a judge, may no longer issue search or arrest warrants. Hence, the authorities must go through the judicial process. To that extent, we declare Article 38, paragraph (c), of the Labor Code, unconstitutional and of no force and effect The power of the President to order the arrest of aliens for deportation is, obviously, exceptional. It (the power to order arrests) cannot be made to extend to other cases, like the one at bar. Under the Constitution, it is the sole domain of the courts. Furthermore, the search and seizure order was in the nature of a general warrant. The court held that the warrant is null and void, because it must identify specifically the things to be seized. WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of the Labor Code is declared UNCONSTITUTIONAL and null and void. The respondents are ORDERED to return all materials seized as a result of the implementation of Search and Seizure Order No. 1205. Luna v Plaza FACTS - A criminal action was commenced by T-Sgt.Candido Patosa, PC investigator against Simon Luna,by filing with respondent Municipal Judge Lorenzo M.Plaza, of the Municipal Court of Tandag, charging thepetitioner, with the crime of murder. - Supporting the complaint were sworn statements of the witnesses for the prosecution, in the form of questions and answers taken by T-Sgt. Patosa, andsubscribed and sworn to before the respondent Judge atthe time of the filing of the complaint. - The respondent Judge examined the prosecutionwitnesses by reading to them "all over again thequestions and answers" in their statements inwriting, and the witnesses-affiants declared beforesaid Judge that the questions were propounded by T-Sgt. Candido Patosa, and that the answers weremade by them.- The affiants signed their respective affidavits in thepresence of the respondent Judge, who also signedafter the usual procedure of administering the oath.- Considering the answers of the affiants to the,questions contained in their sworn statements,together with the postmortem and autopsy report onthe dead body of the victim Jaime Diaz Ng, thecertificate of death, the sketch showing the positionof the victim and the accused, the respondent Judgeopine that there was reasonable ground to believethat the crime of murder had been committed andthe amused was probably guilty thereof.- Respondent Judge issued the order and warrant of arrest, specifying therein that no bail should beaccepted for the provisional release of the accused.- Upon motion of petitioner upon the ground that theevidence of guilt was not strong, respondent Judgeissued an order, granting bail,; which order, however,respondent Judge later revoked, and petitioner wasdenied bail.- The case was subsequently remanded to the CFI of Surigao del Sur, after petitioner filed a waiver of hisright to preliminary investigation.- Respondent Provincial Fiscal filed an informationcharging petitioner with the crime of murder. Thepetitioner was detained in the provincial jail.- Petitioner filed a petition for a writ of habeas corpuswith the CFI of Surigao del Sur, claiming that he wasbeing deprived of liberty without due process of law,on the ground that the imprisonment and detentionwas the result of a warrant of arrest issued byrespondent Judge in violation of Republic Act No.3828, and praying for the annulment of the order forhis arrest and his discharge from confinement.Respondents filed their answer, alleging thatRepublic Act Nor. 3828 had been substantiallycomplied with; that a motion to quash, and not apetition for habeas corpus was the proper remedy,and that petitioner's application for bail constituted a waiver of the right to question the validity of thearrest.- The CFI of Surigao del Sur ruled that respondentMunicipal Judge had substantially complied withRepublic Act No. 3828, and consequently denied theapplication for the writ of habeas corpus, anddismissed the case.- Hence the appeal. Petitioners Claim Republic Act No. 3828 imposeson a municipal judge, before he can issue a warrantof arrest, two specific duties, to wit: (1) personallyexamine the complainant and witnesses with"searching questions and answers," which meansthat the judge must cross-examine them in case theiraffidavits are presented; and (2) said examinationmust be reduced to writing and form part of therecords of the case. The record of the instant case,does not show that said examination was performedby respondent Judge notwithstanding his testimonyto the effect that he adopted the questionspropounded to each of the prosecution witnesses by T-Sgt. Patosa. And assuming that the adoption of thequestions made by T-Sgt. Patosa constitutedsubstantial compliance with the requirement that the judge should examine the witnesses by askingsearching questions, still the second requirement,that of reducing to writing the said procedure of adoption, has not been compiled with; and so,Republic Act No. 3828 was still violated, and theissuance of the warrant of arrest was in violation of said Act and the Constitution and constituted denialof due process. ISSUES

1. WON the trial court erred in giving absolutecredence to the testimony of respondent Municipal Judge.2. WON the requirements of Republic Act No. 3828was satisfied.3. WON the issuance of the warrant of arrest was aviolation of the Constitution and of procedural dueprocess.4. WON the trial court erred in denying the writ of habeas corpus. HELD 1. NO- As a general rule, the lower court's findings, as tothe credibility of witnesses will not be interfered withby appellate courts. Since petitioner appealeddirectly to this Court he must, raise only questions of law and he has thereby waived the right to raise anyquestion of fact, and the findings of facts of the trialcourt, under the rules and precedents, must bedeemed final and binding upon this Court.2. YES.- As provided in Republic Act No. 3828 Before amunicipal judge may issue a warrant of arrest, thefollowing conditions must first be fulfilled: (1) hemust examine the witnesses personally; (2) theexamination must be under oath; (3) theexamination must be reduced to writing in the formof searching questions and answers.- The first condition was fulfilled. The trial court foundas a fact that "the respondent judge personallyexamined the witnesses for the prosecution; thatrespondent judge adopted as his own personalexamination the questions asked by T-Sgt. Patosa asappearing in the written statements, which he readover again to the witnesses together with theanswers given therein, asking the witnesses whethersaid answers were theirs, and whether the sameanswers were true, to which the witnesses answeredin the affirmative. Republic Act No. 3828 does notprohibit the municipal Judge from adopting thequestions asked by a previous investigator.- The second condition was also fulfilled. The trialcourt found that the complaint was "supported bystatements of the witnesses under oath." The recordalso shows there were documents to have beensubscribed and sworn to before respondent Judge.- The third condition was likewise fulfilled. Theexamination of the witnesses was written down, inthe form of searching questions and answers. Theterm searching questions and answers" means only,taking into consideration the purpose of thepreliminary examination which is to determine"whether there is a reasonable ground to believe thatan offense has been committed and the accused isprobably guilty thereof so that a warrant of arrestmay be issued and the accused held for trial," suchquestions as have tendency to show the commissionof a crime and the perpetrator thereof. What wouldbe searching questions would depend on what issought to be inquired into, such as: the nature of theoffense, the date, time, and place of its commission,the possible motives for its commission; the subject,his age, education, status, financial and socialcircumstances, his attitude toward the investigation,social attitudes, opportunities to commit the offense;the victim, his age, status, family responsibilities,financial and social circumstances, characteristics,etc. The points that are the subject of inquiry maydiffer from case to case.- The questions, therefore, must to a great degreedepend upon the Judge making the investigation. At any rate, the court a quo found that respondent Judge was "satisfied that the questions and answerscontained in the sworn statements taken by T-Sgt.Patosa partake of the nature of his searchingquestions and answers as required by law," so therespondent Judge adopted them.3. NO- The Constitution, in Section 1 (3), Article III,provides that no warrant shall issue but uponprobable cause, to be determined by the judge afterexamination under oath or affirmation of thecomplainant and the witnesses he may produce.- The constitutional requirement of examination of witnesses under oath was, as shown above, fulfilled. The existence of probable cause depended to a largedegree upon the finding or opinion of the judgeconducting the examination. Respondent Judge foundthat there was a probable cause, as stated in hisorder of arrest.- Preliminary examination is not an essential part of due process of law. Preliminary examination may beconducted by the municipal judge, prior to theissuance of the warrant of arrest, either in thepresence, or in the absence, of the accused.- The record shows that herein petitioner waived thepreliminary investigation before respondentMunicipal Judge, and instead, he riled a petition forbail. This conduct of petitioner indicates that he hadwaived his objection to whatever defect, if any, in thepreliminary examination conducted by respondent Judge prior to the issuance of the warrant of arrest.4. NO- Section 4 of Rule 102 of the Rules of Court providesin part, as follows:"Sec. 4 When writ not allowed or dischargeauthorized. If it appears that the person alleged to berestrained of his liberty is in the custody of an officerunder process issued by a court or judge ... and thatthe court or judge had jurisdiction to issue theprocess ... or make the order, the writ shall not beallowed ... "- All the conditions, in the afore-quoted Section 4, setforth to deny the writ, are present in the instantcase.- Petitioner is detained and is in the custody of therespondent Provincial Warden by virtue of the orderof arrest and the order of respondent Judge, toconfine petitioner in the provincial jail. It is notdisputed by petitioner that respondent Judge had jurisdiction to issue the warrant of arrest and theorder of commitment under the provisions of Section47, Republic Act No. 409, as amended by RepublicAct No. 1201, although petitioner did question the validity of the warrant of arrest for allegedly havingbeen issued in violation of Republic Act No. 3828which was found to be untenable.- The remedy available to the petitioner herein,under the circumstances stated in this opinion, is nota petition for a writ of habeas corpus but a petition toquash the warrant of arrest or a petition for areinvestigation of the case by the respondentMunicipal Judge or by the Provincial Fiscal.- The Court stressed that what has been stated in theopinion was not intended to sanction the return tothe former practice of municipal judges of simplyrelying upon affidavits or sworn statements that aremade to accompany the complaints that are filedbefore them, in determining whether there is aprobable cause for the issuance of a warrant of arrest. -- That practice is precisely what is sought to bevoided by the amendment of Section 87 (c) of Republic Act 296 (Judiciary Act of 1948) whichrequires that before a municipal judge issues awarrant of arrest he should first satisfy himself thatthere is a probable cause by examining thewitnesses personally, and that the examination mustbe under oath and reduced to writing in the form of searching questions and answers.- It is obvious that the purpose of this amendment isto prevent the issuance of a warrant of arrest againsta person based simply upon affidavits of witnesseswho made, and swore to, their statements before aperson or persons other than the judge before whomthe criminal complaint is filed. Dispositive The decision of the trial court appealedfrom, was affirmed. Costs against petitioner-appellant

Prudente v Dayrit Prudente vs Executive Judge Dayrit G.R. No. 82870 December 14, 1989

Facts: The case is a petition for certiorari to annul and set aside the order of respondent Judge dated 9 March 1988 which denied Dr. Nemesis E. Prudentes (PUP President) motion to quash Search Warrant No. 87-14, as well as his order dated 20 April 1988 denying petitioner's motion for reconsideration of the earlier order. It appears that on 31 October 1987, P/Major Alladin Dimagmaliw, Chief of the Intelligence Special Action Division (ISAD) of the Western Police District (WPD) filed with the Regional Trial Court (RTC) of Manila, Branch 33, presided over by respondent Judge Abelardo Dayrit, now Associate Justice of the Court of Appeals, an application for the issuance of a search warrant, docketed therein as SEARCH WARRANT NO. 87-14, for VIOLATION OF PD NO. 1866 (Illegal Possession of Firearms, etc.) entitled "People of the Philippines, Plaintiff, versus Dr. Nemesis E. Prudente, Defendant." In his application for search warrant, P/Major Alladin Dimagmaliw alleged the following: that in PUP he has in his control or possession firearms, explosives handgrenades and ammunition which are illegally possessed or intended to be used as the means of committing an offense. That the undersigned has verified the report and found it to be a fact, and therefore, believes that a Search Warrant should be issued to enable the undersigned or any agent of the law to take possession and bring to the Honorable Court. Issue: Whether or not the application for Search Warrant No. 87-14 filed is legal against the defendant in violation of PD No. 1866? Held: No. The questioned orders dated 9 March 1988 and 20 April 1988 as well as Search Warrant No. 87-14 were annulled and set aside. Search Warrant In Alvarez vs. Court of First Instance, the Court laid the following test in determining whether the allegations in an application for search warrant or in a supporting deposition, are based on personal knowledge or not, stating that true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is whether it has been drawn in a manner that perjury could be charged thereon and the affiant be held liable for damage caused. The oath required must refer to the truth of the facts within the personal knowledge of the applicant for search warrant, and/or his witnesses, not of the facts merely reported by a person whom one considers to be reliable. Petitioner also assails the validity of the search warrant on the ground that it failed to particularly describe the place to be searched, contending that there were several rooms at the ground floor and the second floor of the PUP. In the present case, however, the application for search warrant was captioned: "For Violation of PD No. 1866 (Illegal Possession of Firearms, etc.) While the said decree punishes several offenses, the alleged violation in this case was, qualified by the phrase "illegal possession of firearms, etc." As explained by respondent Judge, the term "etc." referred to ammunitions and explosives. In other words, the search warrant was issued for the specific offense of illegal possession of firearms and explosives. Probable Cause Manifestly, in the case at bar, the evidence failed to show the existence of probable cause to justify the issuance of the search warrant. The Court also notes post facto that the search in question yielded, no armalites, handguns, pistols, assorted weapons or ammunitions as stated in the application for search warrant, the supporting deposition, and the search warrant the supporting hand grenades were itself only three (3) live fragmentation found in the searched premises of the PUP, according to the affidavit of an alleged member of the searching party. The Court avails of this decision to reiterate the strict requirements for determination of "probable cause" in the valid issuance of a search warrant, as enunciated in earlier cases. True, these requirements are stringent but the purpose is to assure that the constitutional right of the individual against unreasonable search and seizure shall remain both meaningful and effective.

Under Oath Finally, in connection with the petitioner's contention that the failure of the applicant to state, under oath, the urgent need for the issuance of the search warrant, his application having been filed on a Saturday, rendered the questioned warrant invalid for being violative of this Court's Circular No. 19, dated 14 August 1987, which reads: That applications filed after office hours, during Saturdays, Sundays and holidays shall likewise be taken cognizance of and acted upon by any judge of the court having jurisdiction of the place to be searched, but in such cases the applicant shall certify and state the facts under oath, to the satisfaction of the judge, that the issuance is urgent. Pita v CA Facts: On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor of the City of Manila, Ramon D. Bagatsing, elements of the Special Anti-Narcotics Group, Auxiliary Services Bureau, Western Police District, INP of the Metropolitan Police Force of Manila, seized and confiscated from dealers, distributors, newsstand owners and peddlers along Manila sidewalks, magazines, publications and other reading materials believed to be obscene, pornographic and indecent and later burned the seized materials in public at the University belt along C.M. Recto Avenue, Manila, in the presence of Mayor Bagatsing and several officers and members of various student organizations. Among the publications seized, and later burned, was Pinoy Playboy magazines published and co-edited by Leo Pita. On 7 December 1983, Pita filed a case for injunction with prayer for issuance of the writ of preliminary injunction against Mayor Bagatsing and Narcisco Cabrera, as superintendent of Western Police District of the City of Manila, seeking to enjoin and or restrain Bagatsing, Cabrera and their agents from confiscating his magazines or from otherwise preventing the sale or circulation thereof claiming that the magazine is a decent, artistic and educational magazine which is not per se obscene, and that the publication is protected by the Constitutional guarantees of freedom of speech and of the press. On 12 December 1983, Pita filed an Urgent Motion for issuance of a temporary restraining order against indiscriminate seizure, confiscation and burning of plaintiffs Pinoy Playboy Magazines, pending hearing on the petition for preliminary injunction in view of Mayor Bagatsings pronouncement to continue the Anti-Smut Campaign. The Court granted the temporary restraining order on 14 December 1983. On 5 January 1984, Pita filed his Memorandum in support of the issuance of the writ of preliminary injunction, raising the issue as to whether or not the defendants, and or their agents can without a court order confiscate or seize plaintiffs magazine before any judicial finding is made on whether said magazine is obscene or not. The restraining order lapsed on 3 January 1984, Pita filed an urgent motion for issuance of another restraining order, which was opposed by Bagatsing on the ground that issuance of a second restraining order would violate the Resolution of the Supreme Court dated 11 January 1983, providing for the Interim Rules Relative to the Implementation of Batas Pambansa 129, which provides that a temporary restraining order shall be effective only for 20 days from date of its issuance. On 11 January 1984, the trial court issued an Order setting the case for hearing on 16 January 1984 for the parties to adduce evidence on the question of whether the publication Pinoy Playboy Magazine alleged (sic) seized, confiscated and or burned by the defendants, are obscence per se or not. On 3 February 1984, the trial court promulgated the Order appealed from denying the motion for a writ of preliminary injunction, and dismissing the case for lack of merit. Likewise, the Appellate Court dismissed the appeal, holding that the freedom of the press is not without restraint, as the state has the right to protect society from pornographic literature that is offensive to public morals, as indeed we have laws punishing the author, publishers and sellers of obscene publications; and that the right against unreasonable searches and seizures recognizes certain exceptions, as when there is consent to the search or seizure, or search is an incident to an arrest, or is conducted in a vehicle or movable structure. Pita filed the petition for review with the Supreme Court. Issue: Whether the Mayor can order the seizure of obscene materials as a result of an anti-smut campaign. Held: The Court is not convinced that Bagatsing and Cabrera have shown the required proof to justify a ban and to warrant confiscation of the literature for which mandatory injunction had been sought below. First of all, they were not possessed of a lawful court order: (1) finding the said materials to be pornography, and (2) authorizing them to carry out a search and seizure, by way of a search warrant. The fact that the former Mayors act was sanctioned by police power is no license to seize property in disregard of due process. Presidential Decrees 960 and 969 are, arguably, police power measures, but they are not, by themselves, authorities for high-handed acts. They do not exempt our law enforcers, in carrying out the decree of the twin presidential issuances, from the commandments of the Constitution, the right to due process of law and the right against unreasonable searches and seizures, specifically. Significantly, the Decrees themselves lay down procedures for implementation. It is basic that searches and seizures may be done only through a judicial warrant, otherwise, they become unreasonable and subject to challenge. The Court finds greater reason to reprobate the questioned raid, in the complete absence of a warrant, valid or invalid. The fact that the present case involves an obscenity rap makes it no different from Burgos vs. Chief of Staff AFP, a political case, because speech is speech, whether political or obscene. Although the Court is not ruling out warrantless searches, the search must have been an incident to a lawful arrest, and the arrest must be on account of a crime committed. Here, no party has been charged, nor are such charges being readied against any party, under Article 201, as amended, of the Revised Penal Code. There is no accused here to speak of, who ought to be punished. Further, to say that the Mayor could have validly ordered the raid (as a result of an anti-smut campaign) without a lawful search warrant because, in his opinion, violation of penal laws has been committed, is to make the Mayor judge, jury, and executioner rolled into one. Thus, the court mae a resume, to wit: (1) The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, an obscenity rap is in order; (2) The authorities must convince the court that the materials sought to be seized are obscene, and pose a clear and present danger of an evil substantive enough to warrant State interference and action; (3) The judge must determine whether or not the

same are indeed obscene: the question is to be resolved on a case-to-case basis and on His Honors sound discretion. (4) If, in the opinion of the court, probable cause exists, it may issue the search warrant prayed for; (5) The proper suit is then brought in the court under Article 201 of the Revised Penal Code; and (6) Any conviction is subject to appeal. The appellate court may assess whether or not the properties seized are indeed obscene. The Court states, however, that these do not foreclose, however, defenses under the Constitution or applicable statutes, or remedies against abuse of official power under the Civil Code or the Revised Penal code. Nolasco v Pano Facts: Prior to 6 August 1984, Mila Aguilar-Roque was one of the accused of Rebellion in Criminal Case SMC-1-1 before Special Military Commission 1, and also one of the accused of Subversion in Criminal Case MC-25-113 of Military Commission 25, both cases being entitled People of the Philippines vs. Jose Ma. Sison, et al. She was then still at large. At around 9:00 a.m. on August 6, Lt. Col. Virgilio G. Saldajeno of the CSG, applied for a Search Warrant from the Hon. Ernani Cruz Pao, Executive Judge of the Regional Trial Court in Quezon City, to be served at No. 239-B Mayon Street, Quezon City, determined to be the leased residence of Aguilar-Roque, after almost a month of round the clock surveillance of the premises as a suspected underground house of the CPP/NPA. Aguilar-Roque has been long wanted by the military for being a high ranking officer of the Communist Party of the Philippines, particularly connected with the MV Karagatan/Doa Andrea cases. At 11:30 a.m., Aguilar-Roque and Cynthia D. Nolasco were arrested by a Constabulary Security Group (CSG) at the intersection of Mayon Street and P. Margall Street, Quezon City. The record does not disclose that a warrant of arrest had previously been issued against Nolasco. At 12:00 noon on the same day, elements of the CSG searched the premises at 239-B Mayon Street, Quezon City. Willie C. Tolentino, a person then in charge of the premises, was arrested by the searching party presumably without a warrant of arrest. The searching party seized 428 documents and written materials, and additionally a portable typewriter, and 2 wooden boxes, making 431 items in all. On August 10, Aguilar-Roque, Nolasco and Tolentino, were charged before the Quezon City Fiscals Office upon complaint filed by the CSG against the former for Subversion/Rebellion and/or Conspiracy to Commit Rebellion/Subversion. On August 13, the City Fiscal filed an Information for Violation of Presidential Decree (PD) 33 (Illegal Possession of Subversive Documents) against Aguilar-Roque, et. al. before Branch 42 of the Metropolitan Trial Court of Quezon City, Judge Antonio P. Santos, presiding. On August 16, CSG filed a Motion for Reconsideration with the City Fiscal, praying that Aguilar-Roque and Nolasco be charged with Subversion. The Motion was denied on November 16. On September 10, the CSG submitted an Amended Return in the Search Warrant case praying, inter alia, that the CSG be allowed to retain the seized 431 documents and articles, in connection with cases that are presently pending against Mila Aguilar Roque before the Quezon City Fiscals Office and the court. On December 13, Judge Pao admitted the Amended Return and ruled that the seized documents shall be subject to disposition of the tribunal trying the case against respondent. A day before that, Aguilar-Roque, et. al. filed a Motion to Suppress, praying that such of the 431 items belonging to them be returned to them. It was claimed that the proceedings under the Search Warrant were unlawful. Judge Santos denied the Motion on 7 January 1985 on the ground that the validity of the Search Warrant has to be litigated in the other case, apparently unaware of the Order issued by Judge Pao on December 13. Nolasco, Aguilar-Roque, and Tolentino filed the Petition for Certiorari, Prohibition and Mandamus to annul and set aside the (1) Search Warrant issued by RTC Judge Pao; (2) his Order admitting the Amended Return and granting the Motion to Retain Seized Items; and (3) Order of MTC Judge Santos denying Aguilar-Roque, et. al.s Motion to Suppress. Issue: Whether the description of the personalities to be seized in the search warrant is too general to render the warrant void. Held: The disputed Search Warrant (80-84) describes the personalities to be seized as 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 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. Search warrants of similar description were considered null and void for being too general. Notwithstanding the irregular issuance of the Search Warrant and although, ordinarily, the articles seized under an invalid search warrant should be returned, they cannot be ordered returned to Aguilar-Roque. Some searches may be made without a warrant. Section 12, Rule 126, Rules of Court, is declaratory in the sense that it is confined to the search, without a search warrant, of a person who had been arrested. It is also a general rule that, as an incident of an arrest, the place or premises where the arrest was made can also be search without a search warrant. In this latter case, the extent and reasonableness of the search must be decided on its own facts and circumstances, and it has been stated that, in the application of general rules, there is some confusion in the decisions as to what constitutes the extent of the place or premises which may be searched. Considering that Aguilar-Roque has been charged with Rebellion, which is a crime against public order; that the warrant for her arrest has not been served for a considerable period of time; that she was arrested within the general vicinity of her dwelling; and that the search of her dwelling was made within a half hour of her arrest, the Court was of the opinion that, in her respect, the search at No. 239-B Mayon Street, Quezon City, did not need a search warrant; this, for possible effective results in the interest of public order. Such being the case, the personalities seized may be retained by CSG, for possible introduction

as evidence in the Rebellion Case, leaving it to Aguilar-Roque to object to their relevance and to ask Special Military Commission 1 to return to her any all irrelevant documents and articles.