Crim Pro - Rule 126 Cases

8/11/2019 Crim Pro - Rule 126 Cases

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Criminal ProcedureRule 126: Searches and Seizures

BACHE & CO. vs RUIZ

Search and SeizurePersonal Examination of the Judge

On 24 Feb 1970, Commissioner Vera of Internal Revenue, wrote a letter addressed to J

Ruiz requesting the issuance of a search warrant against petitioners for violation of Sec

46(a) of the NIRC, in relation to all other pertinent provisions thereof, particularly Sects

53, 72, 73, 208 and 209, and authorizing Revenue Examiner de Leon make and file the

application for search warrant which was attached to the letter. The next day, de Leon and

his witnesses went to CFI Rizal to obtain the search warrant. At that time J Ruiz was

hearing a certain case; so, by means of a note, he instructed his Deputy Clerk of Court to

take the depositions of De Leon and Logronio. After the session had adjourned, J Ruiz was

informed that the depositions had already been taken. The stenographer read to him her

stenographic notes; and thereafter, J Ruiz asked respondent Logronio to take the oath and

warned him that if his deposition was found to be false and without legal basis, he could be

charged for perjury. J Ruiz signed de Leons application for search warrant and Logronios

deposition. The search was subsequently conducted.

ISSUE: Whether or not there had been a valid search warrant.

HELD: The SC ruled in favor of Bache on three grounds.1. J Ruiz failed to personally examine the complainant and his witness.

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.

2. The search warrant was issued for more than one specific offense.

The search warrant in question was issued for at least four distinct offenses under the Tax

Code. As ruled in StonehillSuch 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 the Search Warrant

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.

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 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 or when the things described are limited to those

which bear direct relation to the offense for which the warrant is being issued.


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EN BANC

G.R. No. 71410 November 25, 1986

JOSEFINO S. ROAN,Petitioner, vs. THE HONORABLE ROMULO T. GONZALES,PRESIDING JUDGE, REGIONAL TRIAL COURT OF MARINDUQUE, BRANCHXXXVIII; THE PROVINCIAL FISCAL OF MARINDUQUE; THE PROVINCIALCOMMANDER, PC-INP MARINDUQUE,Respondents.chanrobles virtual law library

CRUZ, J:

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

One of the most precious rights of the citizen in a free society is the right to be left alone inthe privacy of his own house. That right has ancient roots, dating back through the mists ofhistory to the mighty English kings in their fortresses of power. Even then, the lowlysubject had his own castle where he was monarch of all he surveyed. This was his humblecottage from which he could bar his sovereign lord and all the forces of theCrown.chanrobles virtual law library

That right has endured through the ages albeit only in a few libertarian regimes. Theirnumber, regrettably, continues to dwindle against the onslaughts of authoritarianism. Weare among the fortunate few, able again to enjoy this right after the ordeal of the pastdespotism. We must cherish and protect it all the more now because it is like a prodigal sonreturning.chanrobles virtual law library

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

SEC. 3. The right of the people to be secure in their persons, houses, papers and effectsagainst unreasonable searches and seizures of whatever nature and for any purpose shallnot be violated, and no search warrant or warrant of arrest shall issue except upon probable

cause to be determined by the judge, or such other responsible officer as may be authorizedby law, after examination under oath or affirmation of the complainant and the witnesseshe may produce, and particularly describing the place to be searched, and the persons orthings to be seized.chanrobles virtual law library

SEC. 4. (1) The privacy of communication and cor- respondence shag be inviolable exceptupon lawful order of the court, or when public safety and order requireotherwise.chanrobles virtual law library

(2) Any evidence obtained in violation of this or the preceding section shall beinadmissible for any purpose in any proceeding.

Invoking these provisions, the petitioner claims he was the victim of an illegal search andseizure conducted by the military authorities. The articles seized from him are sought to beused as evidence in his prosecution for illegal possession of firearms. He asks that theiradmission be temporarily restrained (which we have) 1and thereafter permanentlyenjoined.chanrobles virtual law library

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

To be valid, a search warrant must be supported by probable cause to be determined by thejudge or some other authorized officer after examining the complainant and the witnesseshe may produce. No less important, there must be a specific description of the place to besearched and the things to be seized, to prevent arbitrary and indiscriminate use of thewarrant.5

Probable cause was described by Justice Escolin inBurgos v. Chief of Staff6

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

The inclusion of the requirement for the "examination under oath or affirmation of thecomplainant and the witnesses he may produce" was a refinement proposed by DelegateVicente J. Francisco in the1934 Constitutional Convention. His purpose was thestrengthening of the guaranty against unreasonable searches and seizures. Although thecondition did not appear in the corresponding provision of the federa Constitution of theUnited States which served as our model it was then already embodied in the Code ofCriminal Procedure. Nevertheless, Delegate Jose P. Laurel, Chairman of the Committee on

the Bill of Rights of that body, readily accepted the proposal and it was thereafter,following a brief debate, approved by the Convention.8

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

SEC. 4.Examination of the applicant. - The municipal or city judge must, before issuingthe warrant, personally examine on oath or affirmation the complainant and any witnesses


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he may produce and take their depositions in writing, and attach them to the record, inaddition to any affidavits presented to him.

The petitioner claims that no depositions were taken by the respondent judge in accordancewith the above rule, but this is not entirely true. As a matter of fact, depositions were takenof the complainant's two witnesses in addition to the affidavit executed by them. 9It iscorrect to say, however, that the complainant himself was not subjected to a similarinterrogation.chanrobles virtual law library

Commenting on this matter, the respondent judge declared:

The truth is that when PC Capt. Mauro P. Quinosa personally filed his application for asearch warrant on May 10, 1984, he appeared before me in the company of his two (2)witnesses, Esmael Morada and Jesus Tohilida, both of whom likewise presented to me theirrespective affidavits taken by Pat. Josue V. Lining, a police investigator assigned to thePC-INP command at Camp Col. Maximo Abad. As the application was not yet subscribedand sworn to, I proceeded to examine Captain Quillosa on the contents thereof to ascertain,among others, if he knew and understood the same. Afterwards, he subscribed and swore tothe same before me. 10

By his own account, an he did was question Captain Quillosa on the contents of his

affidavit only "to ascertain, among others, if he knew and understood the same," and onlybecause "the application was not yet subscribed and swom to." The suggestion is that hewould not have asked any questions at all if the a ffidavit had already been completed whenit was submitted to him. In any case, he did not ask his own searching questions. Helimited himself to the contents of the affidavit. He did not take the applicant's deposition inwriting and attach them to the record, together with the affidavit presented tohim.chanrobles virtual law library

As this Court held inMata v. Bayona: 11

Mere affidavits of the complainant and his witnesses are thus not sufficient. The examiningJudge has to take depositions in writing of the complainant and the witnesses he niayproduce and attach them to the record. Such written deposition is necessary in order thatthe Judge may be able to properly determine the existence or non-existence of the probablecause, to hold liable for perjury the person giving it if it wifl be found later that hisdeclarations are false.chanrobles virtual law library

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

The respondent judge also declared that he "saw no need to have applicant Quillosa'sdeposition taken considering that he was applying for a search warrant on the basis of theinformation provided by the aforenamed witnesses whose depositions as aforementionedhad already been taken by the undersigned." 12

In other words, the applicant was asking for the issuance of the search warrant on the basisof mere hearsay and not of information personally known to him, as required by settledjurisprudence." 13The rationale of the requirement, of course, is to provide a ground for aprosecution for perjury in case the applicant's declarations are found to be false. His

application, standing alone, was insufficient to justify the issuance of the warrant sought. Itwas therefore necessary for the witnesses themselves, by their own personal information, toestablish the apphcant's claims. 14

Even assuming then that it would have sufficed to take the depositions only of thewitnesses and not of the applicant himself, there is still the question of the sufficiency oftheir depositions.chanrobles virtual law library

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

A study of the depositions taken from witnesses Esmael Morada and Jesus Tohilida, whoboth claimed to be "intelligence informers," shows that they were in the main a mererestatement of their allegations in their affidavits, except that they were made in the formof answers to the questions put to them by the respondent judge. Significantly, themeaningful remark made by Tohilida that they were suspicious of the petitioner because hewas a follower of the opposition candidate in the forthcoming election (a "Lecarista") 16didnot excite the respondent judge's own suspicions. This should have put him on guard as tothe motivations of the witnesses and alerted him to possible misrepresentations fromthem.chanrobles virtual law library

The respondent judge almost unquestioningly received the witnesses' statement that theysaw eight men deliver arms to the petitioner in his house on May 2, 1984. 17This was

supposedly done overtly, and Tohilida said he saw everything through an open window ofthe house while he was near the gate. 18He could even positively say that six of theweapons were.45 caliber pistols and two were.38 caliber revolvers. 19

One may well wonder why it did not occur to the respondent judge to ask how the witnesscould 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 atall, or if the acts related were really done openly, in the full view of the witnesses,


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considering that these acts were against the law. These would have been judiciousquestions but they were injudiciously omitted. Instead, the declarations of the witnesseswere readily accepted and the search warrant sought was issued forthwith.chanroblesvirtual law library

The above-discussed defects have rendered the search warrant invalid. Nonetheless, theSolicitor General argues that whatever defect there was, was waived when the petitionervoluntarily submitted to the search and manifested his conformity in writing. 20

We do not agree. What we see here is pressure exerted by the military authorities, whopractically coerced the petitioner to sign the supposed waiver as a guaranty against apossible challenge later to the validity of the search they were conducting. Confronted withthe armed presence of the military and the presumptive authority of a judicial writ, thepetitioner had no choice but to submit. This was not, as we held in a previous case,21themanifestation merely of our traditional Filipino hospitality and respect for authority. Giventhe repressive atmosphere of the Marcos regime, there was here, as we see it, anintimidation that the petitioner could not resist.chanrobles virtual law library

The respondents also argue that the Colt Magnum pistol and the eighteen have bulletsseized from the petitioner were illegalper seand therefore could have been taken by themilitary authorities even without a warrant. Possession of the said articles, it is urged, was

violative of P.D. 1866 and considered malum prohibitum. Hence, the Wegal articles couldbe taken even without a warrant.chanrobles virtual law library

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

It does not follow that because an offense is malum prohibitum,the subject thereof isnecessarily illegalper se. Motive is immaterial in mala prohibita,but the subjects of thiskind of offense may not be summarily seized simply because they are prohibited. A searchwarrant is still necessary. If the rule were otherwise, then the military authorities could

have just entered the premises and looked for the guns reportedly kept by the petitionerwithout bothering to first secure a search warrant. The fact that they did bother to do soindicates that they themselves recognized the necessity of such a warrant for the seizure ofthe weapons the petitioner was suspected of possessing.chanrobles virtual law library

It is true that there are certain instances when a search may be validly made withoutwarrant and articles may be taken validly as a result of that search. For example, awarrantless search may be made incidental to a lawful arrest, 22as when the person being

arrested is frished for weapons he may otherwise be able to use against the arrestingofficer. Motor cars may be inspected at borders to prevent smuggling of aliens andcontraband 23and even in the interior upon a showing of probable cause. 24Vessels andaircraft are also traditionally removed from the operation of the rule because of theirmobility and their relative ease in fleeing the state's jurisdiction. 25The individual mayknowingly agree to be searched or waive objections to an illegal search. 26And it has alsobeen held that prohibited articles may be taken without warrant if they are open to eye andhand and the peace officer comes upon them inadvertently. 27

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

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

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

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

WHEREFORE, Search Warrant No. 1-84 issued by the respondent judge on May 10, 1984,is hereby declared null and void and accordingly set aside. Our restraining order of August6,1985, is made permanent. No costs.chanrobles virtual law library

SO ORDERED.


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Teehankee, C.J., Feria, Yap, Fernan, Melencio-Herrera, Alampay, Gutierrez, Jr andParas, JJ., concur.


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Abara and Atty. Ernesto Vistro as members of a team tasked to implement Closure andSeizure Order No. 1205. Doing so, the group assisted by Mandaluyong policemen andmediamen Lito Castillo of the People's Journal and Ernie Baluyot of News Todayproceeded to the residence of the petitioner at 615 R.O. Santos St., Mandaluyong, MetroManila. There it was found that petitioner was operating Hannalie Dance Studio. Beforeentering the place, the team served said Closure and Seizure order on a certain Mrs. FloraSalazar who voluntarily allowed them entry into the premises. Mrs. Flora Salazar informedthe team that Hannalie Dance Studio was accredited with Moreman Development (Phil.).However, when required to show credentials, she was unable to produce any. Inside the

studio, the team chanced upon twelve talent performers - practicing a dance number andsaw about twenty more waiting outside, The team confiscated assorted costumes whichwere duly receipted for by Mrs. Asuncion Maguelan and witnessed by Mrs. FloraSalazar.chanroblesvirtualawlibrarychanrobles virtual law library

6. On January 28, 1988, petitioner filed with POEA the following letter:chanrobles virtuallaw library

Gentlemen:chanrobles virtual law library

On behalf of Ms. Horty Salazar of 615 R.O. Santos, Mandaluyong, Metro Manila, werespectfully request that the personal properties seized at her residence last January 26,1988 be immediately returned on the ground that said seizure was contrary to law andagainst the will of the owner thereof. Among our reasons are the following:

1. Our client has not been given any prior notice or hearing, hence the Closure and SeizureOrder No. 1205 dated November 3, 1987 violates "due process of law" guaranteed underSec. 1, Art. III, of the Philippine Constitution.chanroblesvirtualawlibrarychanrobles virtuallaw library

2. Your acts also violate Sec. 2, Art. III of the Philippine Constitution which guaranteesright of the people "to be secure in their persons, houses, papers, and effects againstunreasonable searches and seizures of whatever nature and for any purpose."chanroblesvirtual law library

3. The premises invaded by your Mr. Ferdi Marquez and five (5) others (including 2policemen) are theprivate residence of the Salazar family , and the entry, search as well asthe seizure of the personal properties belonging to our client were without her consent andwere done with unreasonable force and intimidation, together with grave abuse of the colorof authority, and constitute robbery and violation of domicile under Arts. 293 and 128 ofthe Revised Penal Code.chanroblesvirtualawlibrarychanrobles virtual law library

Unless said personal properties worth around TEN THOUSAND PESOS (P10,000.00) inall (and which were already due for shipment to Japan) are returned within twenty-four(24) hours from your receipt hereof, we shall feel free to take all legal action, civil andcriminal, to protect our client's interests.chanroblesvirtualawlibrarychanrobles virtual lawlibrary

We trust that you will give due attention to these important matters.

7. On February 2, 1988, before POEA could answer the letter, petitioner filed the instant

petition; on even date, POEA filed a criminal complaint against her with the PasigProvincial Fiscal, docketed as IS-88-836.1chanrobles virtual law library

On February 2, 1988, the petitioner filed this suit for prohibition. Although the acts soughtto be barred are alreadyfait accompli, thereby making prohibition too late, we consider thepetition as one for certiorariin view of the grave public interestinvolved.chanroblesvirtualawlibrarychanrobles virtual law library

The Court finds that a lone issue confronts it: May the Philippine Overseas EmploymentAdministration (or the Secretary of Labor) validly issue warrants of search and seizure (orarrest) under Article 38 of the Labor Code? It is also an issue squarely raised by thepetitioner for the Court's resolution.chanroblesvirtualawlibrarychanrobles virtual law

library

Under the new Constitution, which states:

. . . no search warrant or warrant of arrest shall issue except upon probable cause to bedetermined personally by the judge after examination under oath or affirmation of thecomplainant and the witnesses he may produce, and particularly describing the place to besearched and the persons or things to be seized. 2chanrobles virtual law library

it is only a judge who may issue warrants of search and arrest. 3In one case, it was declaredthat mayors may not exercise this power:

xxx xxx xxxchanrobles virtual law library

But it must be emphasized here and now that what has just been described is the state ofthe law as it was in September, 1985. The law has since been altered. No longer does themayor have at this time the power to conduct preliminary investigations, much less issueorders of arrest. Section 143 of the Local Government Code, conferring this power on themayor has been abrogated, renderedfunctus officioby the 1987 Constitution which tookeffect on February 2, 1987, the date of its ratification by the Filipino people. Section 2,


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Article III of the 1987 Constitution pertinently provides that "no search warrant or warrantof arrest shall issue except upon probable cause to be determined personally by the judgeafter examination under oath or affirmation of the complainant and the witnesses he mayproduce, and particularly describing the place to be searched and the person or things to beseized." The constitutional proscription has thereby been manifested that thenceforth, thefunction of determining probable cause and issuing, on the basis thereof, warrants of arrestor search warrants, may be validly exercised only by judges, this being evidenced by theelimination in the present Constitution of the phrase, "such other responsible officer as maybe authorized by law" found in the counterpart provision of said 1973 Constitution, who,

aside from judges, might conduct preliminary investigations and issue warrants of arrest orsearch warrants. 4chanrobles virtual law library

Neither may it be done by a mere prosecuting body:

We agree that the Presidential Anti-Dollar Salting Task Force exercises, or was meant toexercise, prosecutorial powers, and on that ground, it cannot be said to be a neutral anddetached "judge" to determine the existence of probable cause for purposes of arrest orsearch. Unlike a magistrate, a prosecutor is naturally interested in the success of hi s case.Although his office "is to see that justice is done and not necessarily to secure theconviction of the person accused," he stands, invariably, as the accused's adversary and hisaccuser. To permit him to issue search warrants and indeed, warrants of arrest, is to makehim both judge and jury in his own right, when he is neither. That makes, to our mind and

to that extent, Presidential Decree No. 1936 as amended by Presidential Decree No. 2002,unconstitutional. 5chanrobles virtual law library

Section 38, paragraph (c), of the Labor Code, as now written, was entered as anamendment by Presidential Decrees Nos. 1920 and 2018 of the late President FerdinandMarcos, to Presidential Decree No. 1693, in the exercise of his legislative powers underAmendment No. 6 of the 1973 Constitution. Under the latter, the then Minister of Labormerely exercised recommendatory powers:

(c) The Minister of Labor or his duly authorized representative shall have the power torecommend the arrest and detention of any person engaged in illegalrecruitment. 6chanrobles virtual law library

On May 1, 1984, Mr. Marcos promulgated Presidential Decree No. 1920, with the avowedpurpose of giving more teeth to the campaign against illegal recruitment. The Decree gavethe Minister of Labor arrest and closure powers:

(b) The Minister of Labor and Employment shall have the power to cause the arrest anddetention of such non-licensee or non-holder of authority if after proper investigation it isdetermined that his activities constitute a danger to national security and public order or

will lead to further exploitation of job-seekers. The Minister shall order the closure ofcompanies, establishment and entities found to be engaged in the recruitment of workersfor overseas employment, without having been licensed or authorized to do so. 7chanroblesvirtual law library

On January 26, 1986, he, Mr. Marcos, promulgated Presidential Decree No. 2018, givingthe Labor Minister search and seizure powers as well:

(c) The Minister of Labor and Employment or his duly authorized representatives shall

have the power to cause the arrest and detention of such non-licensee or non-holder ofauthority if after investigation it is determined that his activities constitute a danger tonational security and public order or will lead to further exploitation of job-seekers. TheMinister shall order the search of the office or premises and seizure of documents,paraphernalia, properties and other implements used in illegal recruitment activities and theclosure of companies, establishment and entities found to be engaged in the recruitment ofworkers for overseas employment, without having been licensed or authorized to doso. 8chanrobles virtual law library

The above has now been etched as Article 38, paragraph (c) of the LaborCode.chanroblesvirtualawlibrarychanrobles virtual law library

The decrees in question, it is well to note, stand as the dying vestiges of authoritarian rulein its twilight moments.chanroblesvirtualawlibrarychanrobles virtual law library

We reiterate that the Secretary of Labor, not being a judge, may no longer issue search orarrest 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 forceand effect.chanroblesvirtualawlibrarychanrobles virtual law library

The Solicitor General's reliance on the case ofMorano v.Vivo9is not well-

taken. Vivoinvolved a deportation case, governed by Section 69 of the defunct RevisedAdministrative Code and by Section 37 of the Immigration Law. We have ruled that indeportation cases, an arrest (of an undesirable alien) ordered by the President or his dulyauthorized representatives, in order to carry out a final decision of deportation is valid. 10It

is valid, however, because of the recognized supremacy of the Executive in mattersinvolving foreign affairs. We have held: 11


The State has the inherent power to deport undesirable aliens (Chuoco Tiaco vs. Forbes,228 U.S. 549, 57 L. Ed. 960, 40 Phil. 1122, 1125). That power may be exercised by the


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Chief Executive "when he deems such action necessary for the peace and domestictranquility of the nation." Justice Johnson's opinion is that when the Chief Executive findsthat there are aliens whose continued presence in the country is injurious to the publicinterest, "he may, even in the absence of express law, deport them". (Forbes vs. ChuocoTiaco and Crossfield, 16 Phil. 534, 568, 569; In re McCulloch Dick, 38 Phil.41).chanroblesvirtualawlibrarychanrobles virtual law library

The right of a country to expel or deport aliens because their continued presence isdetrimental to public welfare is absolute and unqualified (Tiu Chun Hai and Go Tam vs.

Commissioner of Immigration and the Director of NBI, 104 Phil. 949, 956).12

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The power of the President to order the arrest of aliens for deportation is, obviously,exceptional. It (the power to order arrests) can not be made to extend to other cases, likethe one at bar. Under the Constitution, it is the sole domain of thecourts.chanroblesvirtualawlibrarychanrobles virtual law library

Moreover, the search and seizure order in question, assuming, ex gratia argumenti, that itwas validly issued, is clearly in the nature of a general warrant:

Pursuant to the powers vested in me under Presidential Decree No. 1920 and Executive

Order No. 1022, I hereby order the CLOSURE of your recruitment agency being operatedat No. 615 R.O. Santos St., Mandaluyong, Metro Manila and the seizure of the documentsand paraphernalia being used or intended to be used as the means of committing illegalrecruitment, it having verified that you have -

(1) No valid license or authority from the Department of Labor and Employment to recruitand deploy workers for overseas employment;chanrobles virtual law library

(2) Committed/are committing acts prohibited under Article 34 of the New Labor Code inrelation to Article 38 of the same code.

This ORDER is without prejudice to your criminal prosecution under existinglaws. 13chanrobles virtual law library

We have held that a warrant must identify clearly the things to be seized, otherwise, it isnull and void, thus:


Another factor which makes the search warrants under consideration constitutionallyobjectionable is that they are in the nature of general warrants. The search warrantsdescribe the articles sought to be seized in this wise:

1) All printing equipment, paraphernalia, paper, ink, photo equipment, typewriters,cabinets, tables, communications/ recording equipment, tape recorders, dictaphone and thelike used and/or connected in the printing of the "WE FORUM" newspaper and any and alldocuments/communications, letters and facsimile of prints related to the "WE FORUM"newspaper.chanroblesvirtualawlibrarychanrobles virtual law library

2) Subversive documents, pamphlets, leaflets, books, and other publications to promote theobjectives and purposes of the subversive organizations known as Movement for FreePhilippines, Light-a-Fire Movement and April 6 Movement; andchanrobles virtual lawlibrary

3) Motor vehicles used in the distribution/circulation of the "WE FORUM" and othersubversive materials and propaganda, more particularly, chanrobles virtual law library

1) Toyota-Corolla, colored yellow with Plate No. NKA 892;chanrobles virtual law library

2) DATSUN, pick-up colored white with Plate No. NKV 969;chanrobles virtual law library

3) A delivery truck with Plate No. NBS 542;chanrobles virtual law library

4) TOYOTA-TAMARAW, colored white with Plate No. PBP 665; andchanrobles virtuallaw library

5) TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with marking "BagongSilang."

In Stanford v.State of Texas,the search warrant which authorized the search for "books,records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other writteninstruments concerning the Communist Parties of Texas, and the operations of the

Community Party in Texas," was declared void by the U.S. Supreme Court for being toogeneral. In like manner, directions to "seize any evidence in connection with the violationof SDC 13-3703 or otherwise" have been held too general, and that portion of a searchwarrant which authorized the seizure of any "paraphernalia which could be used to violateSec. 54-197 of the Connecticut General Statutes (the statute dealing with the crime ofconspiracy)" was held to be a general warrant, and therefore invalid. The description of thearticles sought to be seized under the search warrants in question cannot be characterizeddifferently.chanroblesvirtualawlibrarychanrobles virtual law library


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In the Stanford case, the U.S. Supreme court calls to mind a notable chapter in Englishhistory; 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 inorder to suppress and destroy the literature of dissent both Catholic and Puritan." Referenceherein to such historical episode would not be relevant for it is not the policy of ourgovernment to suppress any newspaper or publication that speaks with "the voice of non-conformity" but poses no clear and imminent danger to state security. 14chanrobles virtuallaw library

For the guidance of the bench and the bar, we reaffirm the following principles:

1. Under Article III, Section 2, of the l987 Constitution, it is only judges, and no other, whomay issue warrants of arrest and search:chanrobles virtual law library

2. The exception is in cases of deportation of illegal and undesirable aliens, whom thePresident or the Commissioner of Immigration may order arrested, following a final orderof deportation, for the purpose of deportation.

WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of the Labor Code isdeclared UNCONSTITUTIONAL and null and void. The respondents are ORDERED toreturn all materials seized as a result of the implementation of Search and Seizure Order

No. 1205.chanroblesvirtualawlibrarychanrobles virtual law library

No costs.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano,Gancayco, Padilla, Bidin, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.


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FIRST DIVISION

[G.R. No. 89103. July 14, 1995.]

LEON TAMBASEN, Petitioner, v. PEOPLE OF THE PHILIPPINES, 2NDASSISTANT PROVINCIAL PROSECUTOR GLORIA LASTIMOSA MARCOS and

HON. CICERO U. QUERUBIN in his capacity as Presiding Judge of the RegionalTrial Court of Negros Occidental, Branch 44, Bacolod City,Respondents.

Rodolfo V . Gumban and Jose J . Diaz for Petitioner.

Solicitor General for public Respondent.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH WARRANTS; ISSUANCETHEREOF FOR MORE THAN ONE SPECIFIC OFFENSE PROHIBITED.On itsface, the search warrant violates Section 3, Rule 126 of the Revised Rules of Court, whichprohibits the issuance of a search warrant for more than one specific offense. The captionof Search Warrant No. 365 reflects the violation of two special laws: P.D. No. 1866 for

illegal possession of firearms, ammunition and explosives; and R.A. No. 1700, the Anti -Subversion Law. Search Warrant No. 365 was therefore a "scatter-shot warrant" and totallynull and void.

2. ID.; ID.; ID.; SEIZURE OF ARTICLES NOT DESCRIBED THEREIN VIOLATIVEOF SECTION 2, ARTICLE III OF THE 1987 CONSTITUTION.By their seizure ofarticles not described in the search warrant, the police acted beyond the parameters of theirauthority under the search warrant. Section 2, Article III of the 1987 Constitution requiresthat a search warrant should particularly describe the things to be seized. "The evidentpurpose and intent of the requirement is to limit the things to be seized to those, and onlythose, particularly described in the search warrantto leave the officers of the law withno discretion regarding what articles they should seize, to the end that unreasonablesearches and seizures may not be made and that abuses may not be committed." The same

constitutional provision is also aimed at preventing violations of security in person andproperty and unlawful invasions of the sanctity of the home, and giving remedy againstsuch usurpations when attempted.

3. ID.; ID.; ID.; EVIDENCE OBTAINED IN VIOLATION OF RIGHT AGAINSTUNREASONABLE SEARCHES AND SEIZURE INADMISSIBLE.Section 3(2) ofArticle III of the 1987 Constitution provides that evidence obtained in violation of the right

against unreasonable searches and seizures shall be inadmissible for any purpose in anyproceeding.

D E C I S I O N

QUIASON, J.:

This is a petition for certiorariand prohibition under Rule 65 of the Revised Rules ofCourt to set aside the order dated July 20, 1989 of the Regional Trial Court (RTC), Branch44, Bacolod City in Civil Case No. 5331, which nullified with order earlier issued by theMunicipal Trial Circuit Court (MTCC) of the City of Bacolod. The MTCC Order directedthe return to petitioner of the amount of P14,000.00 which had been seized by thepolice.chanrobles.com : virtual law library

I

On August 31, 1988, P/ Sgt. Flumar Natuel applied for the issuance of a search warrantfrom the MTCC, alleging that he received information that petitioner had in his possession

at his house at the North Capitol Road, Bacolod City, "M-16 Armalite Rifles (Mags &Ammos), Hand Grenades, .45 Cal. Pistols (Mags & Ammos), Dynamite Sticks andSubversive Documents," which articles were "used or intended to be used" for illegalpurposes (Rollo, p. 14). On the same day, the application was granted by the MTCC withthe issuance of Search Warrant No. 365, which allowed the seizure of the items specified inthe application (Roll, p. 15).

At around 6:30 P.M. of September 9, 1988, a police team searched the house of petitionerand seized the following articles:jgc:chanrobles.com.ph

"(1) Two (2) envelops containing cash in the total amount of P14,000.00 (one envelopeP10,000.00 and another P4,000.00);

(2) one (1) AR 280 handset w/antenae (sic) SN-00485;

(3) one (1) YAESU FM Transceiver FT 23R w/ Antenae (sic);

(4) one (1) ALINCO ELH 230D Base;

(5) one (1) DC Regulator Supply 150 V. 13.8 V 12 AMPVAC;


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(6) one (1) brown Academy Notebook & Assorted papers; and

(7) Four (4) handsets battery pack" (Rollo, p. 16).

On September 19, 1988, the MTCC acting on petitioners urgent motion for the return of theseized articles, issued an order directing Sgt. Natuel to make a return of the search warrant.The following day, Sgt. Natuel submitted a report to the court. Not considering the reportas a "return in contemplation of law," petitioner filed another motion praying that Sgt.Natuel be required to submit a complete and verified inventory of the seized articles.

Thereafter, Sgt. Natuel manifested that although he was the applicant for the issuance ofthe search warrant, he was not present when it was served.cralawnad

On October 7, 1988, petitioner filed before the MTCC a motion praying that the search andseizure be declared illegal and that the seized articles be returned to him. In his answer tothe motion, Lt. Col. Nicolas Torres, the station commander of the Bacolod City Police, saidthat the amount of P14,000.00 had been earmarked for the payment of the allowance of theArmed City Partisan (ACP) and other "known NPA personalities" operating in the City ofBacolod.

On December 23, 1988, the MTCC issued an order directing Lt. Col. Torres to return themoney seized to petitioner. The court opined that in the implementation of the searchwarrant, any seizure should be limited to the specific items covered thereby. It said that the

money could not be considered as "subversive documents" ; it was neither stolen nor theeffects of gambling.

Three months later, the Solicitor General filed before the RTC Branch 44, Bacolod City apetition forcertiorariseeking the annulment of the order of the MTCC (Civil Case No.5331). The petition alleged that assuming that the seizure of the money had been invalid,petitioner was not entitled to its return citing the rulings in Alih v. Castro, 151 SCRA 279(1987) and Roan v. Gonzales, 145 SCRA 687 (1986). In those cases, the Court held thatpending the determination of the legality of the seizure of the articles, they should remainin custodia legis. The petition also averred that a criminal complaint for "any of the crimesagainst public order as provided under Chapter I, Title III of the Revised Penal Code" hadbeen filed with the City Fiscal (BC I.S. No. 88-1239) and therefore, should the money befound as having been earmarked for subversive activities, it should be confiscated pursuant

to Article 45 of the Revised Penal Code.chanrobles virtual lawlibrary

On July 20, 1989 RTC, Branch 44 issued an order granting the petition for certiorarianddirecting the clerk of court to return to the MTCC the money pending the resolution of thepreliminary investigation being conducted by the city prosecutor on the criminal complaint.In said order, the RTC held:jgc:chanrobles.com.ph

"The Court observed that private respondent Leon Tambasen never questioned the validity

of the search warrant issued by respondent Judge Demosthenes L. Magallanes. A perusal ofprivate respondents Motion to Declare Search and Seizure Illegal and to Return SeizedProperties dated October 7, 1988 shows that respondent Tambasen questions not thevalidity of the search warrant issued by respondent Judge Demosthenes Magallanes, butrather, the execution or implementation of the said warrant principally on the ground thatthe articles seized are not allegedly mentioned in the search warrant. However, the questionthus raised involves matters determinative of the admissibility in evidence and the legalityof the articles seized. These matters, it is submitted, go beyond the immediate and limitedjurisdiction of the respondent Judge to inquire into the validity of the search warrant he

issued. These issues which relate exclusively or principally with the intrinsic andsubstantive merits of the case or cases which are being prepared against respondentTambasen, and insofar as Tambasen is concerned involve matters of defense which shouldbe properly raised at the criminal action or actions that may be filed against respondentLeon Tambasen (see DOH v. Sy Chi Siong Co., Inc. Et. Al., G.R. No. 85289, Feb. 20,1989). They cannot be addressed to the respondent Judge because the respondent Judge hasno jurisdiction over the said issue. It is clear therefore that respondent Judge hastranscended the boundaries of his limited jurisdiction and had in effect encroached uponthe jurisdiction of the appropriate trial court or courts that will try the criminal case orcases against respondent Leon Tambasen, in issuing the assailed order dated December 23,1988. Ostensibly, the assailed order, if not corrected, will unduly deprived the prosecutionof its right to present the evidence in question and consequently will improperly oust thetrial court, which will try the criminal case or cases against private respondent Leon

Tambasen of its original and exclusive jurisdiction to rule on the admissibility and legalityof the said evidence. This order of respondent court is tantamount to a denial of dueprocess. It may be considered as a grave abuse of discretion reviewableby certiorari(Esparagoza v. Tan, 94 Phil. 749)" (Rollo , pp. 47-48).

Consequently, petitioner filed the instant petition for certiorariand prohibition praying forthe issuance of a temporary restraining order commanding the city prosecutor to cease anddesist from continuing with the preliminary investigation in BC I.S. No. 88-1239 and theRTC from taking any step with respect to Civil Case No. 5331. He also prayed that SearchWarrant No. 365 and the seizure of his personal effects be declared illegal and that theOrder of July 20, 1989 be reversed and annulled.

Petitioner contended that the search warrant covered three offenses:" (1) illegal possession

of armalite rifle and .45 cal. pistol; (2) illegal possession of hand grenade and dynamitesticks; and (3) illegal possession of subversive documents" (Rollo, pp. 3-4) in violation ofSection 3 of Rule 126 of the Revised Rules of Court. He assailed the legality of the seizureof the articles which were not mentioned in the search warrant. Moreover, since acomplaint against him was filed only after his house had been searched, petitioner claimedthat the police were "on a fishing expedition."cralaw virtua1aw library

During the pendency of the instant petition, a series of events related to the questioned


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search and seizure transpired. At around 10:30 P.M. of March 1, 1990,Petitioner, who wasthen on board a passenger vehicle, was arrested by intelligence operatives in BarangayMandalagan, Bacolod City and forthwith detained. On the strength of sworn statements oftwo rebel returnees, the police filed a complaint for subversion against petitioner with theOffice of the City Prosecutor. The following day, the City Prosecutor filed an informationfor violation of the Anti-Subversion Law against petitioner with RTC, Branch 42, BacolodCity (Criminal Case No. 8517). An order for the arrest of petitioner was issued on March 2,1990.

On March 6, 1990, petitioner filed a motion to quash the information in Criminal Case No.8517.

On March 15, 1990, RTC, Branch 42 granted petitioners motion to quash and recalled thewarrant of arrest. The court also directed the City Prosecutor to resolve BC-I.S. Case No.88-1239.

On March 20, 1990, Assistant Provincial Prosecutor Gloria Lastimosa Marcos manifestedbefore RTC, Branch 42 that petitioner had been "dropped" from BC-I.S. No. 88-1239.However, the City Prosecutor had, by then, filed a motion for the reconsideration of saidResolution of March 15, 1990. The motion was denied.

Under this factual matrix, this Court is confronted with the question of whether RTC,

Branch 44 gravely abused its discretion in directing that the money seized from petitionershouse, specifically the amount of P14,000.00, be retained and kept in custodia legis.

On its face, the search warrant violated Section 3, Rule 126 of the Revised Rules of Court,which prohibits the issuance of a search warrant for more than one specified offense. Thecaption of Search Warrant No. 365 reflects the violation of two special laws: P.D. No. 1866for illegal possession of firearms, ammunition and explosives; and R.A. No. 1700, theAnti-Subversion Law. Search Warrant No. 365 was therefore a "scatter-shot warrant" andtotally null and void (People v. Court of Appeals, 216 SCRA 101 [1992]).

Moreover, by their seizure of articles not described in the search warrant, the police actedbeyond the parameters of their authority under the search warrant. Section 2, Article III ofthe 1987 Constitution requires that a search warrant should particularly describe the things

to be seized. "The evident purpose and intent of the requirement is no limit the things to beseized to those, and only those, particularly described in the search warrant to leave theofficers of the law with no discretion regarding what articles they should seize, to the endthat unreasonable searches and seizures may not be made and that abuses may not becommitted" (Corro v. Lising, 137 SCRA 541, 547 [1985]); Bache & Co. [Phil.], Inc. v.Ruiz, 37 SCRA 823 [1971]; Uy Kheytin v. Villareal, 42 Phil. 886 [1920]). The sameconstitutional provision is also aimed at preventing violations of security in person andproperty and unlawful invasions of the sanctity of the home, and giving remedy against

such usurpations when attempted (People v. Damaso, 212 SCRA 547 [1992] citing Alverov. Dizon, 76 Phil. 637, 646 [1946]).cralawnad

Clearly then, the money which was not indicated in the search warrant, had been illegallyseized from petitioner. The fact that the members of the police team were doing their taskof pursuing subversive is not a valid excuse for the illegal seizure. The presumption juristantum of regularity in the performance of official duty cannot by itself prevail against theconstitutionally protected rights of an individual (People v. Cruz, 231 SCRA 759 [1994];People v. Veloso, 48 Phil. 169, 176 [1925]). Although public welfare is the foundation of

the power to search and seize, such power must be exercised and the law enforced withouttransgressing the constitutional rights of the citizens (People v. Damaso, supra, citingRodriguez v. Evangelista , 65 Phil. 230, 235 [1937]). As the Court aptly puts it inBagalihog v. Fernadez, 198 SCRA 614 (1991)," [z]eal in the pursuit of criminals cannotennoble the use of arbitrary methods that the Constitution itself abhors."cralaw virtua1awlibrary

For the retention of the money seized by the police officers, approval of the court whichissued the search warrant is necessary (People v. Gesmundo, 219 SCRA 743 [1993]). Inlike manner, only the court which issued the search warrant may order their release(Templo v. Dela Cruz, 60 SCRA 295 [1974]; Pagkalinawan v. Gomez, 21 SCRA 1275[1967]).

Section 3(2) of Article III of the 1987 Constitution provides that evidence obtained inviolation of the right against unreasonable searches and seizured shall be inadmissible forany purpose in any proceeding.

The information in Criminal Case No. 8517, with petitioner as the sole accused, wasordered quashed by the trial court and the prosecutions motion for the reconsideration ofthe quashal order had been denied. Even in BC I.S. Case No. 88-1239, which was beinginvestigated by Assistant Provincial Prosecutor Marcos, petitioner was dropped asaRespondent. Hence, there appears to be no criminal prosecution which can justify theretention of the seized articles in custodia legis.

A subsequent legal development added another reason for the return to him of all the seizedarticles: R.A. No. 1700, the Anti-Subversion Law, was repealed by R.A. No. 7636 and,

therefore, the crimes defined in the repealed law no longer exist.chanrobles.com.ph :virtual law library

WHEREFORE, the petition is GRANTED and the People of the Philippines is ORDEREDto RETURN the money seized to petitioner.

SO ORDERED.


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Padilla, Davide, Jr. and Kapunan,JJ., concur.

Bellosillo,J., is on leave.


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FIRST DIVISION

[G.R. No. 142295. May 31, 2001]

VICENTE DEL ROSARIO y NICOLAS, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

D E C I S I O N

PARDO, J.:

Petitioner Vicente del Rosario y Nicolas appeals viacertiorari from a decision of theCourt of Appeals[1]affirming with modification the decision of the Regional Trial Court,Bulacan, Branch 20, Malolos, and finding him guilty beyond reasonable doubt of violationof P. D. No. 1866, as amended by Republic Act No. 8294 (illegal possession of firearms),sentencing him to four (4) years, nine (9) months and eleven (11) days of prisioncorreccional, as minimum, to six (6) years, eight (8) months and one (1) day of prisionmayor,as maximum, and to pay a fine of P30,000.00.

On June 17, 1996, Assistant Provincial Prosecutor Eufracio S. Marquez of Bulacanfiled with the Regional Trial Court, Bulacan, Malolos an Information charging petitionerVicente del Rosario y Nicolas with violation of P. D. No. 1866, as follows:

That on or about the 15th day of June 1996, in the municipality of Norzagaray, Provinceof Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously have in hispossession under his custody and control, the following, to wit:

a) One (1) pc. Pistol Cal. 45 SN:70G23792 (w/o license)

b) One (1) pc. Revolver Cal. 22 SN:48673 (w/o license)

c) Twenty Seven (27) rds live ammos. For cal. .45

d) Five (5) pcs. Magazines for cal. .45

e) Eight (8) rds live ammunitions for cal. 22

f) Five (5) pcs. Magazines short for cal. 5.56 (M16)

g) Twenty (20) rds live ammunitions for cal 5.56

without first having obtained a proper license therefor.

Contrary to law.[2]

On June 25, 1996, the trial court arraigned the petitioner. He pleaded notguilty.[3]Trial ensued.

The facts, as found by the Court of Appeals, are as follows:

Sometime in May 1996, the police received a report that accused-appellant Vicente delRosario was in possession of certain firearms without the necessary licenses. Acting uponthe report, P/Sr. Insp. Jerito Adique of the PNP Criminal Investigation Group at CampOlivas, Pampanga inquired from the PNP Firearms and Explosive Division whether or notthe report was true. On May 10, 1996, P/Sr. Insp. Edwin C. Roque of the PNP Firearmsand Explosives Division issued a certification (Exhibit L) stating that per records in hisoffice, the appellant is not a licensed/registered firearm holder of any kind andcaliber. Armed with the said certification, P/Sr. Insp. Adique applied for a search warrantto enable his team to search the house of appellant.

On June 13, 1996, a search warrant (Exhibit A) was issued by Judge Gil Fernandez, Sr.ofthe Regional Trial Court of Quezon City, Branch 217, authorizing the search of theresidence of appellant at Barangay Tigbe, Norzagaray, Bulacan.[4]On June 15, 1996, atabout 7:00 oclock in the morning, a team led by P/Sr. Insp. Adique went to Norzagaray toserve the warrant. Before proceeding to the residence of the appellant, the police officersrequested Barangay Chairman Rogelio de Silva and Barangay Councilman AurelioPanteleon to accompany them in the implementation of the warrant. Upon arrival at thehouse of appellant, the police officers introduced themselves to the wife of appellant. Whenthe appellant came out, P/Sr. Insp. Adique informed him that they had a search warrant andthat they were authorized to search his house. After appellant gave his permission, thepolice officers conducted a search of the house. The search yielded the following items:

(a) a caliber .45 pistol with Serial No. 703792 with five magazines of caliber .45 (ExhibitsB and H) found at the masters bedroom; (b) five magazines of 5.56 M-16 rifle and tworadios (Exhibits C to C-4) found in the room of appellants daughter; and (c) a caliber .22revolver with Serial No. 48673 (Exhibit F) containing 8 pieces of live ammunition (ExhibitM) found in the kitchen of the house. When asked about his license to possess the firearms,the appellant failed to produce any. This prompted the police officers to seize the subjectfirearms.
http://sc.judiciary.gov.ph/jurisprudence/2001/may2001/142295.htm#_edn1http://sc.judiciary.gov.ph/jurisprudence/2001/may2001/142295.htm#_edn1http://sc.judiciary.gov.ph/jurisprudence/2001/may2001/142295.htm#_edn1http://sc.judiciary.gov.ph/jurisprudence/2001/may2001/142295.htm#_edn2http://sc.judiciary.gov.ph/jurisprudence/2001/may2001/142295.htm#_edn2http://sc.judiciary.gov.ph/jurisprudence/2001/may2001/142295.htm#_edn2http://sc.judiciary.gov.ph/jurisprudence/2001/may2001/142295.htm#_edn3http://sc.judiciary.gov.ph/jurisprudence/2001/may2001/142295.htm#_edn3http://sc.judiciary.gov.ph/jurisprudence/2001/may2001/142295.htm#_edn3http://sc.judiciary.gov.ph/jurisprudence/2001/may2001/142295.htm#_edn4http://sc.judiciary.gov.ph/jurisprudence/2001/may2001/142295.htm#_edn4http://sc.judiciary.gov.ph/jurisprudence/2001/may2001/142295.htm#_edn4http://sc.judiciary.gov.ph/jurisprudence/2001/may2001/142295.htm#_edn4http://sc.judiciary.gov.ph/jurisprudence/2001/may2001/142295.htm#_edn3http://sc.judiciary.gov.ph/jurisprudence/2001/may2001/142295.htm#_edn2http://sc.judiciary.gov.ph/jurisprudence/2001/may2001/142295.htm#_edn1


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SPO2 Marion Montezon, one of the searching officers, prepared three separate inventoriesof the seized items (Exhibits H, M and N). The inventories were signed by P/Sr. Insp.Adique, the appellant and the barangay officials who witnessed the search. ThereafterSPO2 Montezon prepared a certification of orderly search (Exhibit I) which was signed bythe appellant and the barangay officials attesting to the orderly conduct of the search.

For his defense, appellant contends that he had a license for the caliber .45 pistolrecovered in his bedroom and that the other items seized during the search including thecaliber .22 revolver, were merely planted by the police officers. Appellant likewise assails

the manner in which the search was carried out, claiming that the police officers justbarged into his house without asking permission. Furthermore, he claimed that thebarangay officials arrived only after the police already had finished the search.

After trial and on July 2, 1998, the trial court rendered a judgment of conviction, thedispositive portion of which reads:

WHEREFORE, premises considered, the Court finds the accused VICENTE DELROSARIO y NICOLAS guilty beyond reasonable doubt of violation of P. D. No. 1866 ascharged under the Information dated June 17, 1996.

Conformably with the provisions of said law, as amended by Republic Act No. 8294, and

pursuant to the provisions of the Indeterminate Sentence Law, the Court hereby sentencesthe accused to suffer imprisonment of six (6) months of arresto mayor, as minimum, to six(6) years of prision correctional, as maximum, and to pay a fine of Fifteen Thousand Pesos(P15,000.00).[5]

On July 20, 1998, petitioner appealed to the Court of Appeals, assailing the decisionfor being contrary to facts and the law.[6]

On July 9, 1999, the Court of Appeals promulgated its decision affirming withmodification the decision of the trial court as set out in the opening paragraph of thisdecision.[7]

On August 10, 1999, petitioner filed with the Court of Appeals a motion forreconsideration and/or new trial.[8]He contended that the certification issued by the Chief,

Firearms and Explosives Division, Philippine National Police stating that the person namedtherein had not been issued a firearm license referred to a certain Vicente Vic del Rosarioof barangay Bigte, Norzagaray, Bulacan, not to him. He comes from barangay Tigbe,Norzagaray, Bulacan, and that he has a valid firearm license.

On February 22, 2000, the Court of Appeals denied the motion for reconsideration forlack of merit.[9]

Hence, this appeal.[10]

Petitioner submits that the search conducted at his residence was illegal as the searchwarrant was issued in violation of the Constitution[11]and consequently, the evidenceseized was inadmissible. He also submits that he had a license for the .45 caliber firearmand ammunition seized in his bedroom. The other firearm, a .22 caliber revolver seized ina drawer at the kitchen of his house, a magazine for 5.56 mm. cal. Armalite rifle, and two2-way radios found in his daughters bedroom, were either planted by the police or illegally seized, as they were not mentioned in the search warrant.

We find the petition impressed with merit.

We define the issues as follows:

First: whether petitioner had a license for the .45 caliber Colt pistol and ammunitionseized in his bedroom; and

Second: whether the .22 caliber revolver seized in a drawer at the kitchen of hishouse, a magazine for 5.56 mm. cal. Armalite rifle and two 2-way radios found in hisdaughters bedroom, were planted by the police or were illegally seized.

We shall resolve the issues in seriatim.

First:The .45 cal. Colt pistol in question was duly licensed.

Normally, we do not review the factual findings of the Court of Appeals and the trialcourts.[12]However, this case comes within the exceptions.[13]The findings of fact by theCourt of Appeals will not be disturbed by the Court unless these findings are not supportedby evidence.[14]In this case, the findings of the lower courts even directly contradict theevidence. Hence, we review the evidence. The trial court held that the copy of the licensepresented was blurred, and that in any event, the court could rely on the certification datedMay 10, 1996, of P/Sr. Inspector Edwin C. Roque, Chief, Records Branch, Firearms andExplosives Division, Philippine National Police stating that Vicente Vic del Rosario ofBarangay Bigte, Norzagaray, Bulacan is not a licensed/registered firearm holder of anykind and caliber.[15]As against this, petitioner submitted that he was not the person referredto in the said certification because he is Vicente del Rosario y Nicolas fromBarangay Tigbe,Norzagaray, Bulacan. The Court takes judicial notice of the existence ofboth barangay Tigbe and barangay Bigte, in Norzagaray, Bulacan.[16]In fact, the trial court

erred grievously in not taking judicial notice of the barangays within its territorialjurisdiction, believing the prosecutions submission that there was only barangay Tigbe,and that barangay Bigte in the certification was a typographical error.[17]Petitionerpresented to the head of the raiding team, Police Senior Inspector Jerito A. Adique, Chief,Operations Branch, PNP Criminal Investigation Command, a valid firearm license. Thecourt is duty bound to examine the evidence assiduously to determine the guilt orinnocence of the accused. It is true that the court may rely on the certification of the Chief,Firearms and Explosives Division, PNP on the absence of a firearm license .[18]However,
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such certification referred to another individual and thus, cannot prevail over a validfirearm license duly issued to petitioner. In this case, petitioner presented the printedcomputerized copy of License No. RCL 1614021915 issued to him on July 13, 1993,expiring in January 1995, by the Chief, Firearms and Explosives Division, PNP under thesignature of Reynaldo V. Velasco, Sr. Supt. (GSC) PNP, Chief, FEO.[19]On the dorsalside of the printed computerized license, there is stamped the words Validity ofcomputerized license is extended until renewed license is printeddated January 17, 1995,signed by Police Chief Inspector Franklin S. Alfabeto, Chief, Licence Branch,FEO.[20]Coupled with this indefinite extension, petitioner paid the license fees for theextension of the license for the next two-year period.[21]

Consequently, we find that petitioner was the holder of a valid firearm license for the.45 caliber Colt pistol seized in the bedroom of his house on June 15, 1996 .[22]As required,petitioner presented the license to the head of the raiding team, Police Senior InspectorJerito A. Adique of the Criminal Investigation Division Group, PNP.[23]As a senior policeofficer, Senior Inspector Adique could easily determine the genuineness and authenticity ofthe computerized printed license presented. He must know the computerized licenseprinted form. The stamp is c learly visible. He could decipher the words and the signatureof the authorized signing official of the Firearms and Explosives Division, PNP. Hebelonged to the same national police organization.

Nevertheless, Senior Insp. Adique rejected the license presented because, accordingto him, it was expired. However, assuming that the license presented was expired during

the period January 1995 to January 1997, still, possession of the firearm in question, a .45caliber Colt pistol with serial No. 70G23792, during that period was not illegal. Thefirearm was kept at home, not carried outside residence. On June 15, 1996, at the time ofthe seizure of the firearm in question, possession of firearm with an expired license wasnot considered unlawful,provided thatthe license had not been cancelled orrevoked. Republic Act No. 8294, providing that possession of a firearm with an expiredlicense was unlawful took effect only on July 7, 1997 .[24]It could not be given retroactiveeffect.[25]

According to firearm licensing regulations, the renewal of a firearm license wasautomatically applied for upon payment of the license fees for the renewal period. Theexpired license was not cancelled or revoked. It served as temporary authority to possessthe firearm until the renewed license was issued. Meantime, the applicant may keep the

gun at home pending renewal of the firearm license and issuance of a printed computerizedlicense. He was not obliged to surrender the weapon. Printed at the dorsal side of thecomputerized license is a notice reading:

IMPORTANT

1. This firearm license is valid for two (2) years. Exhibit this license wheneverdemanded by proper authority.

2. Surrender your firearm/s to the nearest PNP Unit upon revocation orterminationof this license. Under any of the following instances, yourlicense shall be revoked for which reason your firearm/s is/are subject toconfiscation and its/their forfeiture in favor of the government.

a. Failure to notify the Chief of PNP in writing of your change of address,and/or qualification.

b. Failure to renew this license by paying annual license, fees, within six (6)

months from your birth month. Renewal of your license can be madewithin your birth monthor month preceding your birth month. Late renewalshall be penalized with 50% surcharge for the first month (from the first dayto the last day of this month) followed by an additional 25% surcharge for allof the succeeding five (5) months compounded monthly.

c. Loss of firearm/s through negligence.

d. Carrying of firearm/s outside of residence without appropriate permit and/orcarrying firearm/s in prohibited places.

e. Conviction by competent court for a crime involving moral turpitude or for

any offense where the penalty carries an imprisonment of more than six (6)months or fine of at least P1,000.00.

f. Dismissal for cause from the service.

g. Failure to sign license, or sign ID picture or affix right thumbmark.

3. Unauthorized loan of firearm/s to another person is punishable by permanentdisqualification and forfeiture of the firearm in favor of the government.

4. If termination is due to death, your next of kin should surrender yourfirearm/s to the nearest PNP Unit. For those within Metro Manila, surrendershould be made with FEO, Camp Crame.

5. When firearms become permanently unserviceable, they should be depositedwith the nearest PNP Unit and ownership should be relinquished in writingso that firearms may be disposed of in accordance with law.

6. Application for the purchase of ammunition should be made in case of aresident of Metro Manila direct to the Chief, FEO and for residents of aProvince to secure recommendation letter to the nearest PNP Provincial
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A: He said palit kalabaw na lang tayo sir.

Q: And what did you answer him?

A: I told him my firearm is licensed and I do not have money, if I have, I will not givehim, sir, because he was just trying to squeeze something from me.

Q: How about the unlicensed firearms in your barangay which he asked from you?

A: I said I do not know any unlicensed firearm in our barangay, sir.

Q: About the .22 cal. pistol, what was your answer to him?A: I told him that it was not mine, they planted it, sir.

Q: What did he say next?

A: He said that it is your word against mine, the Court will believe me because I ama police officer, sir.

Q: What was your comment to what he said?

A: I said my firearm is licensed and we have Courts of law who do not conform withofficials like you and then he laughed and laughed, sir.[43]

The trial court was obviously misguided when it held that it is a matter of judicial

notice that a caliber .45 firearm can not be licensed to a private individual.

[44]

This rulinghas no basis either in law or in jurisprudence.[45]

Second issue.The seizure of items not mentioned in the search warrant was illegal.

With respect to the .22 caliber revolver with Serial No. 48673, that the police raidingteam found in a drawer at the kitchen of petitioners house, suffice it to say that the firearmwas not mentioned in the search warrant applied for and issued for the search ofpetitioners house. Section 2, Article III of the Constitution lays down the general rule thata search and seizure must be carried out through or on the strength of a judicial warrant,absent which such search and seizure becomes unreasonable within the meaning of saidconstitutional provision.

[46]Supporting jurisprudence thus outlined the following

requisites for a search warrants validity, the absence of even one will cause its downrightnullification: (1) it must be issued upon probable cause; (2) the probable cause must be

determined by the judge himself and not by the applicant or any other person; (3) in thedetermination of probable cause, the judge must examine, under oath or affirmation, thecomplainant and such witnesses as the latter may produce; and (4) the warrant issued mustparticularly describe the place to be searched and persons or things to beseized.[47]Seizure is limited to those items particularly described in a valid search warrant.Searching officers are without discretion regarding what articles they shallseize.[48]Evidence seized on the occasion of such an unreasonable search and seizure istainted and excluded for being the proverbial fruit of a poisonous tree. In the language of

the fundamental law, it shall be inadmissible in evidence for any purpose in anyproceeding.[49]

In this case, the firearm was not found inadvertently and in plain view. It was foundas a result of a meticulous search in the kitchen of petit ioners house. This firearm, toemphasize, was not mentioned in the search warrant. Hence, the seizure was illegal .[50]Theseizure without the requisite search warrant was in plain violation of the law and theConstitution.[51]True that as an exception, the police may seize without warrant illegallypossessed firearm or any contraband for that matter, inadvertently found in plainview. However, [t]he seizure of evidence in plain view applies only where the police

officer is not searching for evidence against the accused, but inadvertently comes across anincriminating object.[52]Specifically, seizure of evidence in plain view is justified whenthere is:

(a) a prior valid intrusion based on the valid warrantless arrest in which thepolice are legally present in the pursuit of their official duties;

(b) the evidence was inadvertently discovered by the police who had the right tobe where they are;

(c) the evidence must be immediately apparent, and

(d) plain view justified mere seizure of evidence without further search.[53]

Hence, the petitioner rightly rejected the firearm as planted and not belonging tohim. The prosecution was not able to prove that the firearm was in the effective possessionor control of the petitioner without a license. In illegal possession of firearms, thepossessor must know of the existence of the subject firearm in his posse ssion or control.In People v. de Gracia,[54]we clarified the meaning of possession for the purpose ofconvicting a person under P. D. No. 1866, thus: x x x In the present case, a distinctionshould be made between criminal intent and intent to possess. While mere possessionwithout criminal intent is sufficient to convict a person for illegal possession of a firearm, itmust still be shown that there was animus possidendior an intent to possess on the part ofthe accused. x x x x Hence, the kind of possession punishable under P. D. No. 1866 is onewhere the accused possessed a firearm either physically or constructively with animuspossidendior intention to possess the same.

[55]That is the meaning of animuspossidendi. In the absence of animus possidendi,the possessor of a firearm incurs no

criminal liability.The same is true with respect to the 5.56 cal. magazine found in the bedroom of

petitioners daughter.The seizure was invalid and the seized items were inadmissible inevidence. As explained in People v. Doria,[56]the plain view doctrine applies when thefollowing requisites concur: (1) the law enforcement officer is in a position where he has aclear view of a particular area or has prior justification for an intrusion; (2) said officerinadvertently comes across (or sees in plain view) a piece of incriminating evidence; and
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(3) it is immediately apparent to such officer that the item he sees may be evidence of acrime or a contraband or is otherwise subject to seizure.

With particular reference to the two 2-way radios that the raiding policemen alsoseized in the bedroom of petitioners daughter, there was absolutely no reason for theseizure. The radios were not contraband per se.The National TelecommunicationsCommission may license two-way radios at its discretion.[57]The burden is on theprosecution to show that the two-way radios were not licensed. The NationalTelecommunication Commission is the sole agency authorized to seize unlicensed two-wayradios. More importantly, admittedly, the two-way radios were not mentioned in the

search warrant. We condemn the seizure as illegal and a plain violation of a citizensright. Worse, the petitioner was not charged with illegal possession of the two-way radios.

Consequently, the confiscation of the two 2-way radios was clearly illegal. Thepossession of such radios is not even included in the charge of illegal possession offirearms (violation of P. D. No. 1866, as amended) alleged in the Information.

WHEREFORE, the Court hereby REVERSES the decision of the Court of Appealsin CA-G. R. CR No. 22255, promulgated on July 09, 1999.

The Court ACQUITS petitioner Vicente del Rosario y Nicolas of the charge ofviolation of P. D. No. 1866, as amended by R. A. No. 8294 (illegal possession of firearmsand ammunition), in Criminal Case No. 800-M-96, Regional Trial Court, Bulacan, Branch20, Malolos.