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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. 140546-47 January 20, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MODESTO TEE a.k.a. ESTOY TEE, accused-appellant. QUISUMBING, J.: For automatic review is the consolidated judgment1 of the Regional Trial Court (RTC) of Baguio City, Branch 6, dated September 17, 1999, in Criminal Cases Nos. 15800-R and 15822-R, involving violations of Section 8, Article II, of the Dangerous Drugs Law.2 Since appellant was acquitted in the second case, we focus on the first case, where appellant has been found guilty and sentenced to death and fined one million pesos. The decretal portion of the trial courts decision reads: WHEREFORE, judgment is hereby rendered, as follows: 1. In Crim. Case No. 15800-R, the Court finds the accused Modesto Tee guilty beyond reasonable doubt of the offense of illegal possession of marijuana of about 591.81 kilos in violation of Section 8, Article II of RA 6425 as amended by Section 13 of RA 7659 as charged in the Information, seized by virtue of a search warrant and sentences him to the supreme penalty of death and to pay a fine of 1 million pesos without subsidiary imprisonment in case of insolvency. The 591.81 kilos of marijuana contained in 26 boxes and one yellow sack (Exhibits U-1 to U27) are ordered forfeited in favor of the State to be destroyed immediately in accordance with law. 2. In Crim. Case No. 15822-R, the Court finds that the prosecution failed to prove the guilt of accused Modesto Tee beyond reasonable doubt and hereby acquits him of the charge of illegal possession of marijuana in violation of Section 8, Art. 2 of RA 6425 as amended by Section 13 of RA 7659 as charged in the Information since the marijuana confiscated have to be excluded in evidence as a product of unreasonable search and seizure. The 336.93 kilos of marijuana contained in 13 sacks and four boxes (Exh. B to S and their component parts) although excluded in evidence as the product(s) of unreasonable search and seizure, are nevertheless ordered forfeited in favor of the State to be destroyed immediately in accordance with law considering that they are prohibited articles. The City Jail Warden is, therefore, directed to release the accused Modesto Tee in connection with Crim. Case No. 15822-R unless held on other charges. COST(S) DE OFFICIO. SO ORDERED.3 Appellant is a Chinese national in his forties, a businessman, and a resident of Baguio City. A raid conducted by operatives of the National Bureau of Investigation (NBI) and Philippine National Police Narcotics Command (PNP NARCOM) at premises allegedly leased by appellant and at his residence yielded huge quantities of marijuana. On July 20, 1998, appellant moved to quash the search warrant on the ground that it was too general and that the NBI had not complied with the requirements for the issuance of a valid search warrant. The pendency of said motion, however, did not stop the filing of the appropriate charges against appellant. In an information dated July 24, 1998, docketed as Criminal Case No. 15800-R,

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the City Prosecutor of Baguio City charged Modesto Tee, alias "Estoy Tee," with illegal possession of marijuana, allegedly committed as follows: That on or about the 1st day of July, 1998 in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully, feloniously and knowingly have in his possession the following, to wit: 1. Ninety-two (92) bricks of dried flowering tops separately contained in four (4) boxes; and 2. One hundred fifty-eight (158) bricks, twenty-one (21) blocks, and twenty-three (23) bags of dried flowering tops separately contained in thirteen (13) sacks, with a total weight of 336.93 kilograms; and 3 Six hundred two (602) bricks of dried flowering tops separately contained in twenty-six (boxes) and a yellow sack, weighing 591.81 kilograms, all having a grand total weight of 928.74 kilograms, a prohibited drug, without the authority of law to possess, in violation of the above-cited provision of law. CONTRARY TO LAW.4 On August 7, 1998, the prosecution moved to "amend" the foregoing charge sheet "considering that subject marijuana were seized in two (2) different places."5 As a result, the information in Criminal Case No. 15800-R was amended to read as follows: That on or about the 1st day of July, 1998, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully, feloniously and knowingly have in his possession the following, to wit: - Six hundred two (602) bricks of dried flowering tops separately contained in twenty-six (26) boxes and a yellow sack, weighing 591.81 kilograms a prohibited drug, without the authority of law to possess, in violation of the above-cited provision of law. CONTRARY TO LAW.6 A separate amended information docketed as Criminal Case No. 15822-R was likewise filed, the accusatory portion of which reads: That on or about the 1st day of July, 1998 in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully, feloniously and knowingly have in his possession the following, to wit: 1. Ninety-two (92) bricks of dried flowering tops separately contained in four (4) boxes; and 2. hundred fifty-eight (158) bricks, twenty-one (21) blocks, and twenty-three (23) bags of dried flowering tops separately contained in thirteen (13) sacks, with a total weight of 336.93 kilograms; a prohibited drug, without the authority of law to possess, in violation of the above-cited provision of law. CONTRARY TO LAW.7 On September 4, 1998, the trial court denied the motion to quash the search warrant and ordered appellants arraignment. When arraigned in Criminal Cases Nos. 15800-R and 15822-R, appellant refused to enter a plea. The trial court entered a plea of not guilty for him.8 Trial on the merits then ensued.

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The facts of this case, as gleaned from the records, are as follows: Prosecution witness Danilo Abratique, a Baguio-based taxi driver, and the appellant Modesto Tee are well acquainted with each other, since Abratiques wife is the sister of Tees sister-in-law.9 Sometime in late June 1998, appellant asked Abratique to find him a place for the storage of smuggled cigarettes.10 Abratique brought appellant to his friend, Albert Ballesteros, who had a house for rent in Bakakeng, Baguio City. After negotiating the terms and conditions, Ballesteros agreed to rent out his place to appellant. Appellant then brought several boxes of purported "blue seal" cigarettes to the leased premises. Shortly thereafter, however, Ballesteros learned that the boxes stored in his place were not "blue seal" cigarettes but marijuana. Fearful of being involved, Ballesteros informed Abratique. Both later prevailed upon appellant to remove them from the premises.11 Appellant then hired Abratiques taxi and transported the boxes of cannabis from the Ballesteros place to appellants residence at Km. 6, Dontogan, Green Valley, Sto. Tomas, Baguio City.12 On June 30, 1998, appellant hired Abratique to drive him to La Trinidad, Benguet on the pretext of buying and transporting strawberries. Upon reaching La Trinidad, however, appellant directed Abratique to proceed to Sablan, Benguet, where appellant proceeded to load several sacks of marijuana in Abratiques taxi. He then asked Abratique to find him a place where he could store the contraband.13 Abratique brought appellant to his grandmothers house at No. 27 Dr. Cario St., QM Subdivision, Baguio City, which was being managed by Abratiques aunt, Nazarea Abreau. Nazarea agreed to rent a room to appellant. Abratique and appellant unloaded and stored there the sacks of marijuana brought from Sablan.14 Abratique was aware that they were transporting marijuana as some of the articles in the sacks became exposed in the process of loading.15 Eventually, Abratique and Nazarea were bothered by the nature of the goods stored in the rented room. She confided to her daughter, Alice Abreau Fianza, about their predicament. As Alice Fianzas brother-in-law, Edwin Fianza, was an NBI agent, Alice and Abratique phoned him and disclosed what had transpired.16 On the morning of July 1, 1998, alerted by information that appellant would retrieve the sacks of prohibited drugs that day, Edwin Fianza and other NBI operatives conducted a stake out at No. 27, Dr. Cario St. While the NBI agents were conducting their surveillance, they noticed that several PNP NARCOM personnel were also watching the place.17 The NBI then learned that the PNP NARCOM had received a tip from one of their informers regarding the presence of a huge amount of drugs in that place. The NBI and PNP NARCOM agreed to have a joint operation. As the day wore on and appellant did not show up, the NBI agents became apprehensive that the whole operation could be jeopardized. They sought the permission of Nazarea Abreau to enter the room rented by appellant. She acceded and allowed them entry. The NBI team then searched the rented premises and found four (4) boxes and thirteen (13) sacks of marijuana, totaling 336.93 kilograms.18 Later that evening, NBI Special Agent Darwin Lising, with Abratique as his witness, applied for a search warrant from RTC Judge Antonio Reyes at his residence.19 Judge Reyes ordered the NBI agents to fetch the Branch Clerk of Court, Atty. Delilah Muoz, so the proceedings could be properly recorded. After Atty. Muoz arrived, Judge Reyes questioned Lising and Abratique. Thereafter, the judge issued a warrant directing the NBI to search appellants residence at Km. 6, Dontogan, Green Valley, Baguio City for marijuana.20 The NBI operatives, with some PNP NARCOM personnel in tow, proceeded to appellants residence where they served the warrant upon appellant himself.21 The search was witnessed by appellant, members of his family, barangay officials, and members of the media.22 Photographs were taken during the actual search.23 The law enforcers found 26 boxes and a sack of dried marijuana24 in the water tank, garage, and storeroom of appellants residence.25 The total weight of the haul was 591.81 kilograms.26 Appellant was arrested for illegal possession of marijuana.

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The seized items were then submitted to the NBI laboratory for testing. NBI Forensic Chemist Maria Carina Madrigal conducted the tests. Detailed microscopic and chromatographic examinations of the items taken from appellants rented room at No. 27, Dr. Cario St., as well as those from his residence at Green Valley, showed these to be marijuana.27 In his defense, appellant contended that the physical evidence of the prosecution was illegally obtained, being the products of an unlawful search, hence inadmissible. Appellant insisted that the search warrant was too general and the process by which said warrant was acquired did not satisfy the constitutional requirements for the issuance of a valid search warrant. Moreover, Abratiques testimony, which was heavily relied upon by the judge who issued the warrant, was hearsay. In Criminal Case No. 15822-R, the trial court agreed with appellant that the taking of the 336.93 kilograms of marijuana was the result of an illegal search and hence, inadmissible in evidence against appellant. Appellant was accordingly acquitted of the charge. However, the trial court found that the prosecutions evidence was more than ample to prove appellants guilt in Criminal Case No. 15800-R and as earlier stated, duly convicted him of illegal possession of marijuana and sentenced him to death. Hence, this automatic review. Before us, appellant submits that the trial court erred in: 1UPHOLDING THE LEGALITY OF THE SEARCH WARRANT DESPITE LACK OF COMPLIANCE OF (sic) SEVERAL REQUIREMENTS BEFORE IT SHOULD HAVE BEEN ISSUED AND IT BEING A GENERAL WARRANT; 2.GRAVELY ABUSED ITS DISCRETION IN REOPENING THE CASE AND ALLOWING ABRITIQUE TO TESTIFY AGAINST APPELLANT; 3GIVING CREDENCE TO THE TESTIMONY OF ABRITIQUE; 4. NOT ACQUITTING THE ACCUSED IN BOTH CASES AND SENTENCING HIM TO DEATH DESPITE THE ILLEGALLY OBTAINED EVIDENCE AS FOUND IN THE FIRST CASE.28 We find that the pertinent issues for resolution concern the following: (1) the validity of the search conducted at the appellants residence; (2) the alleged prejudice caused by the reopening of the case and absences of the prosecution witness, on appellants right to speedy trial; (3) the sufficiency of the prosecutions evidence to sustain a finding of guilt with moral certainty; and (4) the propriety of the penalty imposed. 1. On the Validity of the Search Warrant; Its Obtention and Execution Appellant initially contends that the warrant, which directed the peace officers to search for and seize "an undetermined amount of marijuana," was too general and hence, void for vagueness. He insists that Abratique could already estimate the amount of marijuana supposed to be found at appellants residence since Abratique helped to transport the same. For the appellee, the Office of the Solicitor General (OSG) counters that a search warrant is issued if a judge finds probable cause that the place to be searched contains prohibited drugs, and not that he believes the place contains a specific amount of it. The OSG points out that, as the trial court observed, it is impossible beforehand to determine the exact amount of prohibited drugs that a person has on himself. Appellant avers that the phrase "an undetermined amount of marijuana" as used in the search warrant fails to satisfy the requirement of Article III, Section 229 of the Constitution that the things to be seized must be particularly described. Appellants contention, in our view, has no leg to stand on. The constitutional requirement of reasonable particularity of description of the things to be seized is primarily meant to enable the law enforcers serving the warrant to: (1) readily identify the properties to be seized and thus prevent them from seizing the wrong items;30 and (2) leave said peace officers with no discretion regarding the articles to be seized and thus prevent unreasonable searches and seizures.31 What the Constitution seeks to avoid are search warrants of broad or general characterization or sweeping descriptions, which will authorize police officers to undertake a fishing

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expedition to seize and confiscate any and all kinds of evidence or articles relating to an offense.32However, it is not required that technical precision of description be required,33 particularly, where by the nature of the goods to be seized, their description must be rather general, since the requirement of a technical description would mean that no warrant could issue.34 Thus, it has been held that term "narcotics paraphernalia" is not so wanting in particularity as to create a general warrant.35 Nor is the description "any and all narcotics" and "all implements, paraphernalia, articles, papers and records pertaining to" the use, possession, or sale of narcotics or dangerous drugs so broad as to be unconstitutional.36 A search warrant commanding peace officers to seize "a quantity of loose heroin" has been held sufficiently particular.37 Tested against the foregoing precedents, the description "an undetermined amount of marijuana" must be held to satisfy the requirement for particularity in a search warrant. Noteworthy, what is to be seized in the instant case is property of a specified character, i.e., marijuana, an illicit drug. By reason of its character and the circumstances under which it would be found, said article is illegal. A further description would be unnecessary and ordinarily impossible, except as to such character, the place, and the circumstances.38 Thus, this Court has held that the description "illegally in possession of undetermined quantity/amount of dried marijuana leaves and Methamphetamine Hydrochloride (Shabu) and sets of paraphernalia" particularizes the things to be seized.39 The search warrant in the present case, given its nearly similar wording, "undetermined amount of marijuana or Indian hemp," in our view, has satisfied the Constitutions requirements on particularity of description. The description therein is: (1) as specific as the circumstances will ordinarily allow; (2) expresses a conclusion of fact not of law by which the peace officers may be guided in making the search and seizure; and (3) limits the things to be seized to those which bear direct relation to the offense for which the warrant is being issued.40 Said warrant imposes a meaningful restriction upon the objects to be seized by the officers serving the warrant. Thus, it prevents exploratory searches, which might be violative of the Bill of Rights. Appellant next assails the warrant for merely stating that he should be searched, as he could be guilty of violation of Republic Act No. 6425. Appellant claims that this is a sweeping statement as said statute lists a number of offenses with respect to illegal drugs. Hence, he contends, said warrant is a general warrant and is thus unconstitutional. For the appellee, the OSG points out that the warrant clearly states that appellant has in his possession and control marijuana or Indian hemp, in violation of Section 8 of Republic Act No. 6425. We have carefully scrutinized Search Warrant No. 415 (7-98),41 and we find that it is captioned "For Violation of R.A. 6425, as amended."42 It is clearly stated in the body of the warrant that "there is probable cause to believe that a case for violation of R.A. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, as further amended by R.A. 7659 has been and is being committed by one MODESTO TEE a.k.a. ESTOY TEE of Km. 6, Dontogan Bgy., Green Valley, Sto. Tomas, Baguio City by having in his possession and control an UNDETERMINED AMOUNT OF MARIJUANA or INDIAN HEMP in violation of the aforementioned law."43 In an earlier case, we held that though the specific section of the Dangerous Drugs Law is not pinpointed, "there is no question at all of the specific offense alleged to have been committed as a basis for the finding of probable cause."44Appellants averment is, therefore, baseless. Search Warrant No. 415 (7-98) appears clearly issued for one offense, namely, illegal possession of marijuana. Appellant next faults the Judge who issued Search Warrant No. 415 (7-98) for his failure to exhaustively examine the applicant and his witness. Appellant points out that said magistrate should not have swallowed all of Abratiques statements hook, line, and sinker. He points out that since Abratique consented to assist in the transport of the marijuana, the examining judge should have elicited from Abratique his participation in the crime and his motive for squealing on appellant. Appellant further points out that the evidence of the NBI operative who applied for the warrant is merely hearsay and should not have been given credit at all by Judge Reyes. Again, the lack of factual basis for appellants contention is apparent. The OSG points out that Abratique personally assisted appellant in loading and transporting the marijuana to the latters house and to appellants rented room at No. 27 Dr. Cario St., Baguio City. Definitely, this indicates personal knowledge on Abratiques part. Law enforcers cannot themselves be eyewitnesses to every crime; they are allowed to present witnesses before an examining judge. In this case, witness Abratique personally saw and handled the marijuana. Hence, the NBI did not rely on hearsay information in applying for a search warrant but on personal knowledge of the witness, Abratique.

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Before a valid search warrant is issued, both the Constitution45 and the 2000 Revised Rules of Criminal Procedure46 require that the judge must personally examine the complainant and his witnesses under oath or affirmation. The personal examination must not be merely routinary or pro forma, but must be probing and exhaustive.47 In the instant case, it is not disputed that Judge Antonio Reyes personally examined NBI Special Investigator III Darwin A. Lising, the applicant for the search warrant as well as his witness, Danilo G. Abratique. Notes of the proceedings were taken by Atty. Delilah Muoz, Clerk of Court, RTC of Baguio City, Branch 61, whom Judge Reyes had ordered to be summoned. In the letter of transmittal of the Clerk of Court of the RTC of Baguio City, Branch 61 to Branch 6 of said court, mention is made of "notes" at "pages 7-11."48 We have thoroughly perused the records of Search Warrant No. 415 (7-98) and nowhere find said "notes." The depositions of Lising and Abratique were not attached to Search Warrant No. 415 (7-98) as required by the Rules of Court. We must stress, however, that the purpose of the Rules in requiring depositions to be taken is to satisfy the examining magistrate as to the existence of probable cause.49 The Bill of Rights does not make it an imperative necessity that depositions be attached to the records of an application for a search warrant. Hence, said omission is not necessarily fatal, for as long as there is evidence on the record showing what testimony was presented.50 In the testimony of witness Abratique, Judge Reyes required Abratique to confirm the contents of his affidavit;51 there were instances when Judge Reyes questioned him extensively.52 It is presumed that a judicial function has been regularly performed,53 absent a showing to the contrary. A magistrates determination of probable cause for the issuance of a search warrant is paid great deference by a reviewing court,54 as long as there was substantial basis for that determination.55 Substantial basis means that the questions of the examining judge brought out such facts and circumstances as would lead a reasonably discreet and prudent man to believe that an offense has been committed, and the objects in connection with the offense sought to be seized are in the place sought to be searched. On record, appellant never raised the want of adequate depositions to support Warrant No. 415 (798) in his motion to quash before the trial court. Instead, his motion contained vague generalities that Judge Reyes failed to ask searching questions of the applicant and his witness. Belatedly, however, he now claims that Judge Reyes perfunctorily examined said witness.56 But it is settled that when a motion to quash a warrant is filed, all grounds and objections then available, existent or known, should be raised in the original or subsequent proceedings for the quashal of the warrant, otherwise they are deemed waived.57 In this case, NBI Special Investigator Lisings knowledge of the illicit drugs stored in appellants house was indeed hearsay. But he had a witness, Danilo Abratique, who had personal knowledge about said drugs and their particular location. Abratiques statements to the NBI and to Judge Reyes contained credible and reliable details. As the NBIs witness, Abratique was a person on whose statements Judge Reyes could rely. His detailed description of appellants activities with respect to the seized drugs was substantial. In relying on witness Abratique, Judge Reyes was not depending on casual rumor circulating in the underworld, but on personal knowledge Abratique possessed. In Alvarez vs. Court of First Instance of Tayabas, 64 Phil. 33, 44 (1937), we held that: The true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is whether it has been drawn in such a manner that perjury could be charged thereon and affiant be held liable for damages caused.58 Appellant argues that the address indicated in the search warrant did not clearly indicate the place to be searched. The OSG points out that the address stated in the warrant is as specific as can be. The NBI even submitted a detailed sketch of the premises prepared by Abratique, thus ensuring that there would be no mistake. A description of the place to be searched is sufficient if the officer serving the warrant can, with reasonable effort, ascertain and identify the place intended59 and distinguish it from other places in the community.60 A designation or description that points out the place to be searched to the exclusion of all others, and on inquiry unerringly leads the peace officers to it, satisfies the constitutional requirement of definiteness. Appellant finally harps on the use of unnecessary force during the execution of the search warrant. Appellant fails, however, to point to any evidentiary matter in the record to support his contention. Defense witness Cipriana Tee, appellants mother, testified on the search conducted but she said nothing that indicated the use of force on the part of the NBI operatives who conducted the search and seizure.61 What the record discloses is that the warrant was served on appellant,62 who was given time to read it,63 and the search was witnessed by the barangay officials, police operatives,

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members of the media, and appellants kith and kin.64 No breakage or other damage to the place searched is shown. No injuries sustained by appellant, or any witness, appears on record. The execution of the warrant, in our view, has been orderly and peaceably performed. 2. On The Alleged Violation of Appellants Substantive Rights Appellant insists that the prosecutions unjustified and willful delay in presenting witness Abratique unduly delayed the resolution of his case. He points out that a total of eight (8) scheduled hearings had to be reset due to the failure or willful refusal of Abratique to testify against him. Appellant insists that said lapse on the prosecutions part violated Supreme Court Circular No. 38-98.65 Appellant now alleges that the prosecution deliberately resorted to delaying the case to cause him untold miseries. For the appellee, the OSG points out that the two-month delay in the trial is not such a great length of time as to amount to a violation of appellants right to a speedy trial. A trial is always subject to reasonable delays or postponements, but absent any showing that these delays are capricious and oppressive, the State should not be deprived of a reasonable opportunity to prosecute the criminal action. On record, the trial court found that prosecution witness Danilo G. Abratique failed to appear in no less than eighteen (18) hearings, namely those set for February 1, 2, 3, 4, 8, 9, 10, and 24; March 9, 15, 22, and 23; April 6, 7, 8, 16, and 19, all in 1999.66 No less than four (4) warrants of arrest were issued against him to compel him to testify.67 The NBI agent who supposedly had him in custody was found guilty of contempt of court for failing to produce Abratique at said hearings and sanctioned.68 The prosecution had to write the NBI Regional Director in Baguio City and NBI Director in Manila regarding the failure of the Bureaus agents to bring Abratique to court.69Nothing on record discloses the reason for Abratiques aforecited absences. On the scheduled hearing of June 7, 1999, he was again absent thus causing the trial court to again order his arrest for the fifth time.70 He also failed to show up at the hearing of June 8, 1999.71 Appellant now stresses that the failure of Abratique to appear and testify on twenty (20) hearing dates violated appellants constitutional72 and statutory right to a speedy trial. A speedy trial means a trial conducted according to the law of criminal procedure and the rules and regulations, free from vexatious, capricious, and oppressive delays.73 In Conde v. Rivera and Unson, 45 Phil. 650, 652 (1924), the Court held that "where a prosecuting officer, without good cause, secures postponements of the trial of a defendant against his protest beyond a reasonable period of time, as in this instance, for more than a year, the accused is entitled to relief by a proceeding in mandamus to compel a dismissal of the information, or if he be restrained of his liberty, by habeas corpus to obtain his freedom." The concept of speedy trial is necessarily relative. A determination as to whether the right has been violated involves the weighing of several factors such as the length of the delay, the reason for the delay, the conduct of the prosecution and the accused, and the efforts exerted by the defendant to assert his right, as well as the prejudice and damage caused to the accused.74 The Speedy Trial Act of 1998, provides that the trial period for criminal cases in general shall be one hundred eighty (180) days.75 However, in determining the right of an accused to speedy trial, courts should do more than a mathematical computation of the number of postponements of the scheduled hearings of the case.76 The right to a speedy trial is deemed violated only when: (1) the proceedings are attended by vexatious, capricious, and oppressive delays;77 or (2) when unjustified postponements are asked for and secured;78 or (3) when without cause or justifiable motive a long period of time is allowed to elapse without the party having his case tried.79 In the present case, although the absences of prosecution witness Abratique totaled twenty (20) hearing days, there is no showing whatsoever that prosecution capriciously caused Abratiques absences so as to vex or oppress appellant and deny him his rights. On record, after Abratique repeatedly failed to show up for the taking of his testimony, the prosecution went to the extent of praying that the trial court order the arrest of Abratique to compel his attendance at trial. The prosecution likewise tried to get the NBI to produce Abratique as the latter was in the Bureaus custody, but to no avail. Eventually, the trial court ordered the prosecution to waive its right to present Abratique and rest its case on the evidence already offered.80 Nor do we find a delay of twenty (20) hearing days to be an unreasonable length of time. Delay of less than two months has been found, in fact, to be not an unreasonably lengthy period of time.81

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Moreover, nothing on record shows that appellant Modesto Tee objected to the inability of the prosecution to produce its witness. Under the Rules, appellant could have moved the trial court to require that witness Abratique post bail to ensure that the latter would testify when required.82 Appellant could have moved to have Abratique found in contempt and duly sanctioned. Appellant did neither. It is a bit too late in the day for appellant to invoke now his right to speedy trial. No persuasive reason supports appellants claim that his constitutional right to speedy trial was violated. One must take into account that a trial is always subject to postponements and other causes of delay. But in the absence of a showing that delays were unreasonable and capricious, the State should not be deprived of a reasonable opportunity of prosecuting an accused.83 Appellant next contends that the trial court gravely abused its discretion, and exhibited partiality, when it allowed the reopening of the case after the prosecution had failed to present Abratique on several occasions and had been directed to rest its case. Appellant stresses that the lower courts order to reopen the case to receive Abratiques further testimony is an indication that the trial court favored the prosecution and unduly prejudiced appellant. On appellees behalf, the Solicitor General points out that the trial courts order was in the interest of substantial justice and hence, cannot be termed as an abuse of discretion. The OSG points out that the prosecution had not formally rested its case and had yet to present its formal offer of evidence, hence, the submission of additional testimony by the same witness cannot be prejudicial to the accused, it being but the mere continuation of an uncompleted testimony. Furthermore, appellant did not properly oppose the prosecutions motion to reopen the case. At the time Criminal Cases Nos. 15800-R and 15822-R were being tried, the 1985 Rules of Criminal Procedure were in effect. There was no specific provision at that time governing motions to reopen.84 Nonetheless, long and established usage has led to the recognition and acceptance of a motion to reopen. In view of the absence of a specific procedural rule, the only controlling guideline governing a motion to reopen was the paramount interests of justice. As a rule, the matter of reopening of a case for reception of further evidence after either prosecution or defense has rested its case is within the discretion of the trial court.85 However, a concession to a reopening must not prejudice the accused or deny him the opportunity to introduce counter evidence.86 Strictly speaking, however, there was no reopening of the cases in the proceedings below. A motion to reopen may properly be presented only after either or both parties have formally offered and closed their evidence, but before judgment.87 In the instant case, the records show that on April 19, 1999, the prosecution was directed to close its evidence and given 15 days to make its formal offer of evidence.88 This order apparently arose from the manifestation of the prosecution on April 16, 1999 that should they fail to produce witness Abratique on the next scheduled hearing the prosecution would rest its case.89 On April 19, 1999, which was the next scheduled hearing after April 16, 1999, Abratique was absent notwithstanding notices, orders, and warrants of arrest. However, on April 27, 1999, or before the prosecution had formally offered its evidence, Abratique was brought to the trial court by the NBI. In its order of said date, the trial court pointed out that the prosecution could move to "reopen" the case for the taking of Abratiques testimony.90 On May 7, 1999, the prosecution so moved, stressing that it had not yet formally offered its evidence and that the substantial rights of the accused would not be prejudiced inasmuch as the latter had yet to present his evidence. Appellant filed no opposition to the motion. The trial court granted the motion six days later. Plainly, there was nothing to reopen, as the prosecution had not formally rested its case. Moreover, the taking of Abratiques testimony was not for the purpose of presenting additional evidence, but more properly for the completion of his unfinished testimony. In U.S. vs. Base,91 we held that a trial court is not in error, if it opts to reopen the proceedings of a case, even after both sides had rested and the case submitted for decision, by the calling of additional witnesses or recalling of witnesses so as to satisfy the judges mind with reference to particular facts involved in the case. A judge cannot be faulted should he require a material witness to complete his testimony, which is what happened in this case. It is but proper that the judges mind be satisfied on any and all questions presented during the trial, in order to serve the cause of justice. Appellants claim that the trial courts concession to "reopen" the case unduly prejudiced him is not well taken. We note that appellant had every opportunity to present his evidence to support his case or to refute the prosecutions evidence point-by-point, after the prosecution had rested its case. In short, appellant was never deprived of his day in court. A day in court is the touchstone of the right to due process in criminal justice.92 Thus, we are unable to hold that a grave abuse of discretion was committed by the trial court when it ordered the so-called "reopening" in order to complete the testimony of a prosecution witness.

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3. On the Sufficiency of the Prosecutions Evidence In bidding for acquittal, appellant assails the credibility of Abratique as a witness. Appellant insists that Abratiques testimony is profuse with lies, contrary to human nature, hence incredible. According to appellant, Abratique was evasive from the outset with respect to certain questions of the trial court. He adds that it appeared the court entertained in particular the suspicion that witness Abratique had conspired with appellant in committing the crime charged. Appellant questions Abratiques motive in informing the NBI about his activities related to the marijuana taking, transfer, and warehousing. The OSG contends that Abratiques testimony, taken as a whole, is credible. It points out that Abratique testified in a straightforward manner as to his knowledge of the huge cache of prohibited drugs stashed by appellant in two different places. His testimony, said the OSG, when fused with the physical evidence consisting of 591.81 kilograms of marijuana found by law enforcers at appellants residence, inexorably leads to the inculpation of appellant. It is the bounden duty of the courts to test the prosecution evidence rigorously, so that no innocent person is made to suffer the unusually severe penalties meted out for drug offenses.93 Though we scrutinized minutely the testimony of Abratique, we find no cogent reason to disbelieve him. From his account, Abratique might appear aware treading the thin line between innocence and feeling guilty, with certain portions of his story tending to be self-exculpatory. However, his whole testimony could not be discredited. The established rule is that testimony of a witness may be believed in part and disbelieved in other parts, depending on the corroborative evidence and the probabilities and improbabilities of the case. But it is accepted, as a matter of common sense, that if certain parts of a witness testimony are found true, his testimony cannot be disregarded entirely.94 Abratique testified in open court that appellant rented the taxicab he was driving, and he helped appellant transport huge amounts of marijuana to appellants rented room at No. 27 Dr. Cario St., Baguio City and to appellants residence at Km. 6, Dontogan, Green Valley, Sto. Tomas, Baguio City. He also declared on the witness stand that out of fear of being involved, he decided to divulge his knowledge of appellants possession of large caches of marijuana to the NBI. When the places referred to by Abratique were searched by the authorities, marijuana in staggering quantities was found and seized by the law enforcers. Stated plainly, the physical evidence in this case corroborated Abratiques testimony on material points. Appellant imputes questionable motives to Abratique in an effort to discredit him. He demands that Abratique should likewise be prosecuted. However, by no means is the possible guilt of Abratique a tenable defense for appellant. Nor would Abratiques prosecution mean appellants absolution. In a prosecution for illegal possession of dangerous drugs, the following facts must be proven with moral certainty: (1) that the accused is in possession of the object identified as prohibited or regulated drug; (2) that such possession is not authorized by law; and (3) that the accused freely and consciously possessed the said drug.95 We find the foregoing elements proven in Criminal Case No. 15800-R beyond reasonable doubt. In said case, the testimony of Abratique and the recovery of 591.81 kilograms of marijuana from appellants residence served to prove appellants possession of a prohibited drug. Tests conducted by the NBI forensic chemist proved the seized articles to be marijuana. These articles were seized pursuant to a valid search warrant and hence, fully admissible in evidence. In People v. de los Reyes, 239 SCRA 439 (1994), we held that the Dangerous Drugs Act applies generally to all persons and proscribes the sale of dangerous drugs by any person, and no person is authorized to sell such drugs. Said doctrine is equally applicable with respect to possession of prohibited drugs. Republic Act No. 6425, which penalizes the possession of prohibited drugs, applies equally to all persons in this jurisdiction and no person is authorized to possess said articles, without authority of law. Anent the third element, we have held that to warrant conviction, possession of illegal drugs must be with knowledge of the accused or that animus possidendi existed together with the possession or control of said articles.96 Nonetheless, this dictum must be read in consonance with our ruling that possession of a prohibited drug per se constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused absent a satisfactory explanation of such possession.97 In

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effect, the onus probandi is shifted to accused to explain the absence of knowledge or animus possidendi98 in this situation. Appellant Modesto Tee opted not to testify in his defense. Instead, he presented his mother as his lone witness, who testified on matters totally irrelevant to his case. We can only conclude that, failing to discharge the burden of the evidence on the possession of prohibited drug, appellants guilt in Criminal Case No. 15800-R was established beyond reasonable doubt. 4. On The Proper Penalty Under Republic Act No. 6425 as amended by Republic Act No. 7659, the penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos (P500,000.00) to ten million pesos (P10,000,000.00)99 shall be imposed if the quantity of marijuana involved in a conviction for possession of marijuana or Indian hemp shall be 750 grams or more.100 In the present case, the quantity of marijuana involved has been shown by the prosecution to be far in excess of 750 grams, as stressed by the trial court: The volume is rather staggering. It is almost one whole house or one whole room. In fact, when they were first brought to the court, it took hours to load them on the truck and hours also to unload them prompting the court to direct that the boxes and sack of marijuana be instead kept at the NBI office in Baguio. And the identification of said marijuana during the trial was made in the NBI premises itself by the witnesses since it was physically cumbersome and inconvenient to keep bringing them to the court during every trial.101 In sentencing appellant to death, the trial court noted not only the huge quantity of marijuana bales involved, but also "the acts of accused of hiding them in different placesand transferring them from place to place and making them appear as boxes of cigarettes to avoid and evade apprehension and detection." They showed his being a big supplier, said the trial court, [whose] criminal perversity and craft that "deserve the supreme penalty of death."102 We are unable to agree, however, with the penalty imposed by the trial court. The legislature never intended that where the quantity involved exceeds those stated in Section 20 of Republic Act No. 6425 the maximum penalty of death shall automatically be imposed.103 The statute prescribes two indivisible penalties: reclusion perpetua and death. Hence, the penalty to be imposed must conform with Article 63104 of the Revised Penal Code. As already held, the death penalty law, Republic Act No. 7659 did not amend Article 63 of the Revised Penal Code.105 The rules in Article 63 apply although the prohibited drugs involved are in excess of the quantities provided for in Section 20 of Republic Act No. 6425.106 Thus, finding neither mitigating nor aggravating circumstances in the present case, appellants possession of 591.81 kilograms of marijuana in Criminal Case No. 15800R, does not merit capital punishment but only the lesser penalty of reclusion perpetua. The trial court imposed a fine on appellant in the sum of One Million Pesos (P1,000,000.00), without subsidiary imprisonment in case of insolvency. The imposition of a fine is mandatory in cases of conviction of possession of illegal drugs. This being within the limits allowed by the law, the amount of the fine must be sustained. All these sanctions might not remedy all the havoc wrought by prohibited drugs on the moral fiber of our society, especially the youth.107 But these penalties should warn peddlers of prohibited drugs that they cannot ply their trade in our streets with impunity. WHEREFORE, the decision of the Regional Trial Court of Baguio City, Branch 6, in Criminal Case No. 15800-R, convicting appellant MODESTO TEE alias "ESTOY" TEE of violation of Section 8 of Republic Act No. 6425, as amended, is AFFIRMED with the MODIFICATION that appellant is hereby sentenced to suffer the penalty of reclusion perpetua. The fine of ONE MILLION (P1,000,000.00) PESOS imposed on him is sustained. Appellant is likewise directed to pay the costs of suit. SO ORDERED.

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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. Nos. 78347-49 November 9, 1987 ADOLFO OLAES and LINDA M. CRUZ, petitioners, vs. PEOPLE OF THE PHILIPPINES and HON. JUDGE ALICIA L. SANTOS (In her capacity as Presiding Judge of the Regional Trial Court of Olongapo City, Branch 73), respondents.

CRUZ, J: In this petition for certiorari and prohibition with preliminary injunction, the petitioners challenge the admission by the respondent judge of evidence seized by virtue of an allegedly invalid March warrant and of an extrajudicial confession taken from them without according them the right to assistance of counsel. 1 They seek to restrain further proceedings in the criminal case against them for violation of the Dangerous Drugs Act (which we have suspended) 2 and ask that they be acquitted with the setting aside of the questioned orders. The Solicitor General, in his Comment, suggests that the petition should be dismissed as it is not alleged therein that the respondent judge has committed grave abuse of discretion or acted without or in excess of jurisdiction. He adds that if any reversible error has been committed, it may be corrected not in this petition but in an ordinary appeal, which may not even be necessary if the petitioners are exonerated. 3 The petitioners, in their Reply, do not meet these arguments head-on, thus impliedly admitting the formal defect in their petition, but subject that technicalities should yield to substantial questions in the interest of justice and to avoid unnecessarilyor protracted litigation. Their contention is that since there are important constitutional issues involved, these questions should disposition of their case 4 be decided in this petition instead of having them debated and resolved first in the lower court in acconce with the usual procedure, to the prejudice of the speedy We are not usually persuaded by this kind of argument, since procedural rules are intended precisely to insure an orderly administration of justice. Rights are best established in accordance with the procedure laid down by the adjective law, which is as binding on the parties as the substantive law since they are supposed to complement each other. The Solicitor General is obviously correct in faulting the petition and in contending that, besides being defective, it is not the proper remedy at this time. There is no disputing this stand. Worthy of note in this connection is The separate opinion of the present Chief Justice in Joseph v. Vilialuz, 5 where he declared that: . . . the Court adheres to the settled rule that it will not overrule in a special civil action the trial court's interlocutory order denying a motion to dismiss for failure or insufficiency of the prosecution's evidence since it cannot review in such special civil action the prosution's evidence and decide here and now in advance that it has or has not established beyond reasonable doubt the guilt of the petitioners-accused. The orderly procedure prescribed by the Rules of Court is for the accused to present their evidence after which the trial court will on the basis of the evidence presented before it by both the prosecution and the defense render its judgment of conviction or acquittal. If the verdict be one of acquittal, the case ends there. If it be a verdict of conviction, then appeal is the proper remedy - and such appeal in order to have a review of the trial court's findings of fact hes within the exclusive appellate jurisdiction of the Court of Appeals. We reiterate the rule here.

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Even so, the Court has decided, without detracting from the validity of the above-cited observations., to deviate from the established procedure on this matter and to categorically resolve the issues presented iii the case before us. The challenged orders are, indeed, interlocutory. Nevertheless, a restatement of the principles governing such issues wilt it is expected, simplify the proceedings in the court. below and speed up the disposition of the criminal case against the petitioners. The petitioners claim that the search warrant issued by the respondent judge is unconstitutional because it does not indicate the specific offense they are supposed to have committed. There is, therefore, according to them, no valid finding of probable cause as a justification for the issuance of the said warrant in conformity with the Bill of Rights. In support of this argument, they cite Stonehill v. Diokno, 6 where Chief Justice Concepcion struck down the search warrants issued therein for being based on the general allegation that the petitioners had committed violations of "Central Bank Laws, Tariff and Customs Laws, Internal Revenue Code and Revised Penal Code." He declared: In other words, no specific offense had been alleged in said applications. The averments thereof with respect to the offense committed were abstract. As a consequence, it was impossible for the judges who issued the warrants to have found the existence of probable cause, for the same presupposes the introduction of competent proof that the party against whom it is sought has performed particular acts, or committed specific omissions, violating a given provision of our criminal law. We have examined the search warrant issued in the instant case and find it does not come under the structures of the Stonehill doctrine. In the case cited, there was a bare reference to the laws in general, without any specification of the particular sections thereof that were alleged to have been violated out of the hundreds of prohibitions contained in such modifications. There is no similar ambiguity in the instant case. While it is true that the caption of the search warrant states that it is in connection with "Violation of RA 6425, otherwise known as the Dangerous Drugs Acts of 1972," it is clearly recited in the text thereof that "There is probable cause to believe that Adolfo Olaes alias "Debie" and alias "Baby" of No. 628 Comia St., Filtration, Sta. Rita, Olongapo City, has in their possession and control and custody of marijuana dried stalks/leaves/seeds/cigarettes and other regulated/prohibited and exempt narcotics preparations which is the subject of the offense stated above." 7 Although the specific section of the Dangerous Drugs Act is not pinpointed, there is no question at all of the specific offense alleged to have been committed as a basis for the finding of probable cause. The search warrant also satisfies the requirement in the Bill of Rights of the particularity of the description to be made of the "place to be searched and the persons or things to be seized." The petitioners also fault the admission of the extrajudicial confessions which they had given without the assistance or advice of counsel and cite Section 20 of the Bill of Rights of the 1973 Constitution providing that "any confession obtained in violation of this section shall be inadmissible in evidence." In the separate sworn statements taken from Adolfo Olaes and Linda Cruz on September 24, 1982, 8 it appears that both petitioners were, before being examined, specifically informed of their right to the assistance of counsel, which would be provided them by the investigating office at their request. Asked if they understood, they said "Opo" and affixed their signatures opposite their answer. This was followed by a statement entitled "Pagpapatunay" or Verification in which they said inter alia that they did not need the assistance of counsel ("Hindi ko na kailangan and tulong ng isang manananggol.") which they also signed. It was only after these preliminary precautions had been taken that the interrogation began and was recorded in the sworn statement later introduced against them at their trial. There is no claim that any force, violence, intimidation or threat or any means vitiating the free wig was employed against them. Their only objection to the extrajudicial confessions is that they were obtained without the assistance of counsel. They do not aver in their petition that they were not apprised of their right to counsel or that they were denied the assistance of counsel when they asked for it, or, indeed, that they had asked for it. Even so, their investigation did not conform to the requirements laid down in People v. Galit, 9 where we declared: At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any, He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses

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by the most expedient means by telephone if possible or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplislied. No custodial investigation shall be conducted unless it be in the presence of coursel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence. These requirements were made even stricter under Article III, Section 12 of the 1987 Constitution, providing as follows: Sec. 12. (1) Any person under investigation for the commission offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferally of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. Applying the above rules, we reach the conclusion that the extrajudicial confessions should be declared inadmissible as evidence against the herein petitioners. WHEREFORE, the petition is partly granted. The extrajudicial confessions are excluded but the articles seized under the challenged search warrant may be admitted in evidence. Our temporary restraining order of May 25, 1987, is lifted. No costs. SO ORDERED.

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 82870 December 14, 1989 DR. NEMESIO E. PRUDENTE, petitioner, vs. THE HON. EXECUTIVE JUDGE ABELARDO M. DAYRIT, RTC Manila, Branch 33 and PEOPLE OF THE PHILIPPINES, respondents. Francisco SB Acejas III, Oscar S. Atencio, Rodolfo M. Capocyan, Ernesto P. Fernandez, Romulo B. Macalintal, Rodrigo H. Melchor, Rudegelio D. Tacorda Virgilio L. Valle and Luciano D. Valencia for petitioner.

PADILLA, J.: This is a petition for certiorari to annul and set aside the order of respondent Judge dated 9 March 1988 which denied the petitioner's 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 application1 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 Nemesis E. Prudente, Defendant." In his application for search warrant, P/Major Alladin Dimagmaliw alleged, among others, as follows: 1. That he has been informed and has good and sufficient reasons to believe that NEMESIO PRUDENTE who may be found at the Polytechnic University of the Philippines, Anonas St. Sta. Mesa, Sampaloc, Manila, 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 which the said NEMESIO PRUDENTE is keeping and concealing at the following premises of the Polytechnic University of the Philippines, to wit: a. Offices of the Department of Military Science and Tactics at the ground floor and other rooms at the ground floor; b. Office of the President, Dr. Nemesio Prudente at PUP, Second Floor and other rooms at the second floor; 2. 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 this Honorable Court the following described properties: a. M 16 Armalites with ammunitions; b. .38 and .45 Caliber handguns and pistols; c. explosives and handgrenades; and, d. assorted weapons with ammunitions. In support of the application for issuance of search warrant, P/Lt. Florenio C. Angeles, OIC of the Intelligence Section of (ISAD) executed a "Deposition of Witness" dated 31 October 1987,

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subscribed and sworn to before respondent Judge. In his deposition, P/Lt. Florenio Angeles declared, inter alia, as follows: Q: Do you know P/Major Alladin Dimagmaliw, the applicant for a Search Warrant? A: Yes, sir, he is the Chief, Intelligence and Special Action Division, Western Police District. Q: Do you know the premises of Polytechnic University of the Philippines at Anonas St., Sta. Mesa, Sampaloc, Manila A: Yes, sir, the said place has been the subject of our surveillance and observation during the past few days. Q: Do you have personal knowledge that in the said premises is kept the following properties subject of the offense of violation of PD No. 1866 or intended to be used as a means of committing an offense: a. M 16 Armalites with ammunitions; b. .38 and 45 Caliber handguns and pistols; c. explosives and handgrenades; and d. Assorted weapons with ammunitions? A: Yes sir. Q: Do you know who is or who are the person or persons who has or have control of the above-described premises? A: Yes sir, it is Dr. Nemesio Prudente, President of the Polytechnic University of the Philippines. Q: How do you know that said property is subject of the offense of violation of Pres. Decree No. 1866 or intended to be used as the means of committing an offense? A: Sir, as a result of our continuous surveillance conducted for several days, we gathered information from verified sources that the holder of said firearms and explosives as well as ammunitions aren't licensed to possess said firearms and ammunition. Further, the premises is a school and the holders of these firearms are not students who were not supposed to possess firearms, explosives and ammunition. On the same day, 31 October 1987, respondent Judge issued Search Warrant No. 87-14, 3 the pertinent portions of which read as follows: It appearing to the satisfaction of the undersigned, after examining under oath applicant ALLADIN M. DIMAGMALIW and his witness FLORENIO C. ANGELES that there are good and sufficient reasons to believe (probable cause) that NEMESIO PRUDENTE has in his control in the premises of Polytechnic University of the Philippines, Anonas St., Sta. Mesa, Sampaloc, Manila, properties which are subject of the above offense or intended to be used as the means of committing the said offense. You are hereby commanded to make an immediate search at any time in the day or night of the premises of Polytechnic University of the Philippines, more particularly (a) offices of the Department of Military Science and Tactics at the ground floor and other rooms at the ground floor; (b) office of the President, Dr. Nemesio Prudente at PUP, Second Floor and other rooms at the second floor, and forthwith seize and take possession of the following personal properties, to wit:

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a. M 16 Armalites with ammunition; b. .38 and .45 Caliber handguns and pistols; c. explosives and hand grenades; and d. assorted weapons with ammunitions. and bring the above described properties to the undersigned to be dealt with as the law directs. On 1 November 1987, a Sunday and All Saints Day, the search warrant was enforced by some 200 WPD operatives led by P/Col. Edgar Dula Torre, Deputy Superintendent, WPD, and P/Major Romeo Maganto, Precinct 8 Commander. In his affidavit, 4 dated 2 November 1987, Ricardo Abando y Yusay, a member of the searching team, alleged that he found in the drawer of a cabinet inside the wash room of Dr. Prudente's office a bulging brown envelope with three (3) live fragmentation hand grenades separately wrapped with old newspapers, classified by P/Sgt. J.L. Cruz as follows (a) one (1) pc.M33 Fragmentation hand grenade (live); (b) one (11) pc.M26 Fragmentation hand grenade (live); and (c) one (1) pc. PRB423 Fragmentation hand grenade (live). On 6 November 1987, petitioner moved to quash the search warrant. He claimed that (1) the complainant's lone witness, Lt. Florenio C. Angeles, had no personal knowledge of the facts which formed the basis for the issuance of the search warrant; (2) the examination of the said witness was not in the form of searching questions and answers; (3) the search warrant was a general warrant, for the reason that it did not particularly describe the place to be searched and that it failed to charge one specific offense; and (4) the search warrant was issued in violation of Circular No. 19 of the Supreme Court in that the complainant failed to allege under oath that the issuance of the search warrant on a Saturday was urgent. 5 The applicant, P/Major Alladin Dimagmaliw thru the Chief, Inspectorate and Legal Affairs Division, WPD, opposed the motion. 6 After petitioner had filed his reply 7 to the opposition, he filed a supplemental motion to quash. 8 Thereafter, on 9 March 1988, respondent Judge issued an order, 9denying the petitioner's motion and supplemental motion to quash. Petitioner's motion for reconsideration 10 was likewise denied in the order 11 dated 20 April 1988. Hence, the present recourse, petitioner alleging that respondent Judge has decided a question of substance in a manner not in accord with law or applicable decisions of the Supreme Court, or that the respondent Judge gravely abused his discretion tantamount to excess of jurisdiction, in issuing the disputed orders. For a valid search warrant to issue, there must be probable cause, which is 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. 12 The probable cause must be in connection with one specific offense 13 and the judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and any witness he may produce, on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted. 14 The "probable cause" for a valid search warrant, has been defined "as such facts and circumstances which would lead a reasonably discreet arid prudent man to believe that an offense has been committed, and that objects sought in connection with the offense are in the place sought to be searched." 15 This probable cause must be shown to be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay. 16 Petitioner assails the validity of Search Warrant No. 87-14 on the ground that it was issued on the basis of facts and circumstances which were not within the personal knowledge of the applicant and his witness but based on hearsay evidence. In his application for search warrant, P/Major Alladin Dimagmaliw stated that "he has been informed" that Nemesio Prudente "has in his control and

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possession" the firearms and explosives described therein, and that he "has verified the report and found it to be a fact." On the other hand, in his supporting deposition, P/Lt. Florenio C. Angeles declared that, as a result of their continuous surveillance for several days, they "gathered informations from verified sources" that the holders of the said fire arms and explosives are not licensed to possess them. In other words, the applicant and his witness had no personal knowledge of the facts and circumstances which became the basis for issuing the questioned search warrant, but acquired knowledge thereof only through information from other sources or persons. While it is true that in his application for search warrant, applicant P/Major Dimagmaliw stated that he verified the information he had earlier received that petitioner had in his possession and custody the t there is nothing in the record to show or indicate how and when said applicant verified the earlier information acquired by him as to justify his conclusion that he found such information to be a fact. He might have clarified this point if there had been searching questions and answers, but there were none. In fact, the records yield no questions and answers, whether searching or not, vis-a-vis the said applicant. What the records show is the deposition of witness, P/Lt. Angeles, as the only support to P/Major Dimagmaliw's application, and the said deposition is based on hearsay. For, it avers that they (presumably, the police authorities) had conducted continuous surveillance for several days of the suspected premises and, as a result thereof, they "gathered information from verified sources" that the holders of the subject firearms and explosives are not licensed to possess them. In Alvarez vs. Court of First Instance, 17 this 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 The 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. Tested by the above standard, the allegations of the witness, P/Lt. Angeles, in his deposition, do not come up to the level of facts of his personal knowledge so much so that he cannot be held liable for perjury for such allegations in causing the issuance of the questioned search warrant. In the same Alvarez case, 18 the applicant stated that his purpose for applying for a search warrant was that: "It had been reported to me by a person whom I consider to be reliable that there are being kept in said premises books, documents, receipts, lists, chits and other papers used by him in connection with his activities as a money lender, challenging usurious rate of interests, in violation of law." The Court held that this was insufficient for the purpose of issuing a search warrant. In People vs. Sy Juco, 19 where the affidavit contained an allegation that there had been a report to the affiant by a person whom lie considered reliable that in said premises were "fraudulent books, correspondence and records," this was likewise held as not sufficient for the purpose of issuing a search warrant. Evidently, the allegations contained in the application of P/ Major Alladin Dimagmaliw and the declaration of P/Lt. Florenio C. Angeles in his deposition were insufficient basis for the issuance of a valid search warrant. As held in the Alvarezcase: The oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause. Besides, respondent Judge did not take the deposition of the applicant as required by the Rules of Court. As held in Roan v. Gonzales, 20 "(m)ere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take depositions in writing of the complainant and the witnesses he may produce and attach them to the record." Moreover, a perusal of the deposition of P/Lt. Florenio Angeles shows that it was too brief and short. Respondent Judge did not examine him "in the form of searching questions and answers." On the contrary, the questions asked were leading as they called for a simple "yes" or "no" answer. As held in Quintero vs. NBI," 21 the questions propounded by respondent Executive Judge to the applicant's

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witness are not sufficiently searching to establish probable cause. Asking of leading questions to the deponent in an application for search warrant, and conducting of examination in a general manner, would not satisfy the requirements for issuance of a valid search warrant." 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. 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. The rule is, that a description of a place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and Identify the place intended . 22 In the case at bar, the application for search warrant and the search warrant itself described the place to be searched as the premises of the Polytechnic University of the Philippines, located at Anonas St., Sta. Mesa, Sampaloc, Manila more particularly, the offices of the Department of Military Science and Tactics at the ground floor, and the Office of the President, Dr. Nemesio Prudente, at PUP, Second Floor and other rooms at the second floor. The designation of the places to be searched sufficiently complied with the constitutional injunction that a search warrant must particularly describe the place to be searched, even if there were several rooms at the ground floor and second floor of the PUP. Petitioner next attacks the validity of the questioned warrant, on the ground that it was issued in violation of the rule that a search warrant can be issued only in connection with one specific offense. The search warrant issued by respondent judge, according to petitioner, was issued without any reference to any particular provision of PD No. 1866 that was violated when allegedly P.D. No. 1866 punishes several offenses. In Stonehill vs. Diokno, 23 Where the warrants involved were issued upon applications stating that the natural and juridical persons therein named had committed a "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue Code and Revised Penal Code," the Court held that no specific offense had been alleged in the applications for a search warrant, and that it would be a legal hearsay of the highest order to convict anybody of a "Violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue Code and Revised Penal Code" without reference to any determinate provision of said laws and codes. 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. Hence, the failure of the search warrant to mention the particular provision of PD No. 1866 that was violated is not of such a gravity as to call for its invalidation on this score. Besides, while illegal possession of firearms is penalized under Section 1 of PD No. 1866 and illegal possession of explosives is penalized under Section 3 thereof, it cannot be overlooked that said decree is a codification of the various laws on illegal possession of firearms, ammunitions and explosives; such illegal possession of items destructive of life and property are related offenses or belong to the same species, as to be subsumed within the category of illegal possession of firearms, etc. under P.D. No. 1866. As observed by respondent Judge: 24 The grammatical syntax of the phraseology comparative with the title of PD 1866 can only mean that illegal possession of firearms, ammunitions and explosives, have been codified under Section 1 of said Presidential Decree so much so that the second and third are forthrightly species of illegal possession of firearms under Section (1) thereof It has long been a practice in the investigative and prosecution arm of the government, to designate the crime of illegal possession of firearms,

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ammunitions and explosives as 'illegal possession of firearms, etc.' The Constitution as well as the Rules of Criminal Procedure does not recognize the issuance of one search warrant for illegal possession of firearms, one warrant for illegal possession of ammunitions, and another for illegal possession of explosives. Neither is the filing of three different informations for each of the above offenses sanctioned by the Rules of Court. The usual practice adopted by the courts is to file a single information for illegal possession of firearms and ammunitions. This practice is considered to be in accordance with Section 13, Rule 110 of the 1985 Rules on Criminal Procedure which provides that: 'A complaint or information must charge but one offense, except only in those cases in which existing laws prescribe a single punishment for various offenses. Describably, the servers did not search for articles other than firearms, ammunitions and explosives. The issuance of Search Warrant No. 87-14 is deemed profoundly consistent with said rule and is therefore valid and enforceable. (Emphasis supplied) 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: 3. 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. it would suffice to state that the above section of the circular merely provides for a guideline, departure from which would not necessarily affect the validity of an otherwise valid search warrant. WHEREFORE, all the foregoing considered, the petition is GRANTED. The questioned orders dated 9 March 1988 and 20 April 1988 as well as Search Warrant No. 87-14 are hereby ANNULLED and SET ASIDE. The three (3) live fragmentation hand grenades which, according to Ricardo Y. Abando, a member of the searching team, were seized in the washroom of petitioner's office at the PUP, are ordered delivered to the Chief, Philippine Constabulary for proper disposition. SO ORDERED.

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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-43810 September 26, 1989 TOMAS CHIA, Owner-Manager of the Sony Merchandising (Phil.) of No. 691 Calle Raon, Quiapo, Manila, and TOM'S ELECTRONICS of No. 690 Calle Raon, Quiapo, Manila, petitioner, vs. THE ACTING COLLECTOR OF CUSTOMS, HON ALFREDO T. FRANCISCO, Port Area, Manila, and, GENER SULA ASAC, Camp Emilio Aguinaldo, Quezon City, respondents. Eliseo P. Legaspi for petitioner.

GRIO-AQUINO, J.: This petition for certiorari, prohibition, mandamus and injunction seeks: (1) to nullify the warrants of seizure and detention issued and signed by the Collector of Customs; and (2) to recover the confiscated goods seized under these general warrants, as well as damages. Acting on a verified report of a confidential informant that assorted electronic and electrical equipment and other articles illegally imported into the Philippines by a syndicate engaged in unlawful "shipside" activities (foreign goods are unloaded from foreign ships in transit through Philippine waters into motorized bancas and landed on Philippine soil without passing through the Bureau of Customs, thereby evading payment of the corresponding customs duties and taxes thereon) were found inside "Tom's Electronics" and "Sony Merchandising (Philippines)" stores located at 690 and 691 Gonzalo Puyat corner Evangelista Street, Quiapo, Manila, a letter- request dated April 23, 1976 was addressed to the Collector of Customs by the Deputy Director of the Regional Anti-Smuggling Action Center, Manila Bay Area (RASAC-MBA) for the issuance of warrants of seizure and detention. After evaluation, the Collector of Customs issued Warrants of Seizure and Detention Nos: 14925 and 14925-A, directing the Anti-Smuggling Action Center to seize the goods mentioned therein, which read as follows: Republic of the Philippines, _ versus Various electronic equipments like cassette tape recorders, car stereos, phonograph needles (diamond), portable TV sets, imported long playing records, spare parts of TVs and radios and other electrical appliances. TOM'S ELECTRONICS Claimant Seizure Identification No. 14925-A SONY MERCHANDISING (PHIL.) Claimant Seizure Identification No. 14925 To: The Director or his duly-authorized representative ASAC Camp Aguinaldo, Quezon City GREETINGS:

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WHEREAS, the above-described articles are liable for forfeiture for having been imported in violation of Section 2536 of the Tariff and Customs Code as amended in relation to Section 2530 (m)-l of the same Code; WHEREAS, the said articles are at present in the custody of Tom's Electronics/Sony Merchandising (Phil.); WHEREFORE, by virtue of the authority vested in me by law and in compliance with Finance Department Order No. 96-67 as published in Customs Memorandum Circular No. 133-67 dated July 25, 1967, you are hereby ordered to forthwith seize the aforementioned articles and turn them over to the custody of the Auction and Cargo Disposal Division of this Bureau. (Annexes A & A-1, pp. 10-11, Rollo.) A RASAC team was formed and given a mission order to enforce the warrants, which it implemented with the assistance of: (1) the National Customs Police (augmenting the team with two members), (2) the Detective Bureau of the Manila Western Police District Headquarters (with three detectives), as well as, (3) Precinct 3 of the Manila Western Police District which exercised jurisdictional control over the place to be raided. The intended raid was entered in the respective police blotters of the police detective bureaus. On the strength of the warrants of seizure and detention, the raid was conducted in the afternoon of April 25,1976 at the two stores of the petitioner. ASAC team leader Gener Sula, together with his agents Badron Dobli, Arturo Manuel, Rodolfo Molina and Servillano Florentin of Camp Aguinaldo, Quezon City, assisted by two customs policemen, Val Martinez and Renato Sorima, and Manila policemen Rogelio Vinas and John Peralta, recovered from the stores, assorted electronic equipment and other articles, listed in Annex B of the petition, the customs duties on which allegedly had not been paid (p. 12, Rollo). They were turned over to the Customs Auction ana Cargo Disposal Unit of the Bureau of Customs. On May 17, 1976, in the afternoon, the hearing officer of Acting Collector of Customs Alfredo Francisco conducted a hearing on the confiscation of the goods taken by Gener Sula and his agents. Two days later, petitioner Tomas Chia filed this petition for certiorari, prohibition and mandamus to enjoin the Collector of Customs and/or his agents from further proceeding with the forfeiture healing and prayed that the search warrants be declared null and void, that the respondents be ordered to return the confiscated articles to the petitioner, and to pay damages. Upon filing a Pl,000-bond, the Court issued a writ of preliminary injunction to stop the forfeiture proceedings. The pivotal issue raised in the petition is whether the warrants of seizure and detention (or Seizure Identifications Nos.14925 and 14925-A) are general warrants issued in violation of Rule 126, Section 3, of the Rules of Court which provides that: A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined by the judge or justice of the peace after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. No search warrant shall issue for more than one specific offense. and under Section 3 of the Bill of Rights of the 1973 Constitution which provided that: The right of the people to be secured in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not 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 authorized by law after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized (Emphasis supplied.) On the other hand, the respondents contend that the goods seized from petitioner's stores by the RASAC-MBA team were only those subject to customs duties and taxes but which were not supported by any evidence of payment of those duties and taxes. Those goods are subject to forfeiture for having been imported in violation of Section 2536 of the Tariff and Customs Code, as amended, in relation to Section 2530 (m)-l, which provides:

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SEC. 2536. SEIZURES OF OTHER ARTICLES-The Commissioner of Customs and Collector of Customs and/or any other customs officer, with the prior authorization in writing by the Commissioner, may demand evidence of payment of duties and taxes on foreign articles openly offered for sale or kept in storage, and if no such evidence can be produced, such articles may be seized and subjected to forfeiture proceedings: Provided, however, that during such proceedings the person or entity from whom such articles have been seized shall be given the opportunity to prove or show the source of such articles and the payment of duties and taxes thereon. The petition is devoid of merit. Not only may goods be seized without a search and seizure warrant under Section 2536 of the Customs and Tariff Code, when they (the goods) are openly offered for sale or kept in storage in a store as in this case, but the fact is that petitioner's stores Tom's Electronics" and "Sony Merchandising (Phil.)" were searched upon warrants of search and detention issued by the Collector of Customs, who, under the 1973 Constitution, was "a responsible officer authorized by law" to issue them. Sections 2208 and 2209 of the Tariff and Customs Code provide when a search may be made without a warrant and when a warrant is necessary: SEC. 2208. RIGHT OF POLICE OFFICER TO ENTER INCLOSURE For the more effective discharge of his official duties, any person exercising the powers herein conferred, may at any time enter, pass through or search any land or inclosure or any warehouse, store or other building, not being a dwelling house. A warehouse, store or other building or inclosure used for the keeping or storage of articles does not become a dwelling house within the meaning hereof merely by reason of the fact that a person employed as watchman lives in the place, nor will the fact that his family stays there with him alter the case. SEC. 2209.- SEARCH OF A DWELLING HOUSE. A dwelling house may be entered and searched only upon warrant issued by a Judge of the court or such other responsible officers as may be authorized by law, upon sworn application showing probable cause and particularly describing the place to be searched and the person or thing to be seized. The warrants issued by the Collector of Customs in this case were not general warrants, as erroneously alleged by the petitioner for they identified the stores to be searched, described the articles to be seized and specified the provision of the Tariff and Customs Code violated. Upon effecting the seizure of the goods, the Bureau of Customs acquired exclusive jurisdiction not only over the case but also over the goods seized for the purpose of enforcing the tariff and customs laws. A party dissatisfied with the decision of the Collector may appeal to the Commissioner of Customs, whose decision is appealable to the Court of Tax Appeals in the manner and within the period prescribed by law and regulations. The decision of the Court of Tax Appeals may be elevated to the Supreme Court for review (Secs. 2309-2316; 2401 & 2402 of the Tariff and Customs Code; Collector of Customs vs. Torres, et al., 45 SCRA 272). Since petitioner did not exhaust his administrative remedies, his recourse to this Court is premature (Acting Collector of Customs of the Port of Manila vs. Caluag, 20 SCRA 204; Laganapan vs. Asedillo, 154 SCRA 377; National Development Co. vs. Hervilla, 151 SCRA 520). If for no other reason, the petition is dismissible on that score. WHEREFORE, the petition is dismissed. The writ of preliminary injunction which we issued on May 28, 1976 is hereby lifted and set aside. Costs against petitioner. SO ORDERED.

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Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. Nos. 76649-51 August 19, 1988 20TH CENTURY FOX FILM CORPORATION, petitioner, vs. COURT OF APPEALS, EDUARDO M. BARRETO, RAUL SAGULLO and FORTUNE LEDESMA, respondents. Siguion Reyna, Montecillo & Ongsiako Law Office for petitioner. B.C. Salazar & Associates for respondents.

GUTIERREZ, JR., J.: The petitioner questions the application of the constitutional provision against illegal searches and seizures to raids conducted in connection with the government's anti-film piracy campaign. The main issue hinges on whether or not the judge properly lifted the search warrants he issued earlier upon the application of the National Bureau of Investigation on the basis of the complaint filed by the petitioner. In a letter-complaint dated August 26, 1985, petitioner 20th Century Fox Film Corporation through counsel sought the National Bureau of Investigation's (NBI) assistance in the conduct of searches and seizures in connection with the latter's anti-film piracy campaign. Specifically, the lettercomplaint alleged that certain videotape outlets all over Metro Manila are engaged in the unauthorized sale and renting out of copyrighted films in videotape form which constitute a flagrant violation of Presidential Decree No. 49 (otherwise known as the Decree on the Protection of Intellectual Property). Acting on the letter-complaint, the NBI conducted surveillance and investigation of the outlets pinpointed by the petitioner and subsequently filed three (3) applications for search warrants against the video outlets owned by the private respondents. The applications were consolidated and heard by the Regional Trial Court of Makati, Branch 132. On September 4, 1985, the lower court issued the desired search warrants. Armed with the search warrants, the NBI accompanied by the petitioner's agents, raided the video outlets and seized the items described therein. An inventory of the items seized was made and left with the private respondents. Acting on a motion to lift search warrants and release seized properties filed by the private respondents, the lower court issued an order dated October 8, 1985, lifting the three (3) search warrants issued earlier against the private respondents by the court. The dispositive portion of the order reads: WHEREFORE, the Court hereby orders that Search Warrants Nos. SW- 85-024; issued against Eduardo M. Barreto of the Junction Video, etc., Paranaque, Metro Manila; SW No. 85-025, issued against Raul M. Sagullo of South Video Bug Center, Inc., etc., also of No. 5355 Pres. Avenue BF Homes, Paraaque, Metro Manila; and SW No. 85-026, issued against Fortune A. Ledesma of Sonix Video Services of San Antonio Plaza, Forbes Park, Makati, Metro Manila, be lifted. Consequently, the articles listed in the returns of the three search warrants which could not be a basis of any criminal prosecution, now in the possession of the National Bureau of Investigation which under the law must be delivered to this Court, but which the NBI failed to do, are hereby ordered to be returned to their owners through their lawyer, Atty. Benito Salazar or his agents or representatives, against

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proper receipt, to be forwarded to this Court for record purposes, as proof that said properties have been returned to the possession of the rightful owners." (p. 34, Rollo) The lower court denied a motion for reconsideration filed by the petitioner in its order dated January 2, 1986. The petitioner filed a petition for certiorari with the Court of Appeals to annul the October 8, 1985 and January 2, 1986 orders of the lower court. The petition was dismissed. Hence, this petition. The main issue hinges on the meaning of "probable cause" within the context of the constitutional provision against illegal searches and seizures (Section 3, Article IV, 1973 Constitution, now, Section 2, Article Ill, 1987 Constitution. The petitioner maintains that the lower court issued the questioned search warrants after finding the existence of a probable cause justifying their issuance. According to the petitioner, the lower court arrived at this conclusion on the basis of the depositions of applicant NBI's two witnesses which were taken through searching questions and answers by the lower court. Section 2, Article III of the present Constitution which substantially reproduces Section 3, Article IV of the 1973 Constitution on illegal searches and seizures provides: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. This constitutional right protects a citizen against wanton and unreasonable invasion of his privacy and liberty as to his person, papers and effects. We have explained in the case of People v. Burgos (144 SCRA 1) citingVillanueva v. Querubin (48 SCRA 345) why the right is so important: It is deference to one's personality that lies at the core of this right, but it could be also looked upon as a recognition of a constitutionally protected area, primarily one's home, but not necessarily thereto confined. (Cf. Hoffa v. United States, 385 US 293 119661) What is sought to be guarded is a man's prerogative to choose who is allowed entry to his residence. In that haven of refuge, his individuality can assert itself not only in the choice of who shall be welcome but likewise in the kind of objects he wants around him. There the state, however powerful, does not as such have access except under the circumstances above noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life. (Cf Schmerber v. California, 384 US 757 [1966], Brennan, J. and Boyd v. United States, 116 630 [1886]). In the same vein, Landynski in his authoritative work (Search and Seizure and the Supreme Court [1966]), could fitly characterize constitutional right as the embodiment of a "spiritual concept: the belief that to value the privacy of home and person and to afford its constitutional protection against the long reach of government is no less than to value human dignity, and that his privacy must not be disturbed except in case of overriding social need, and then only under stringent procedural safeguards."(ibid, p. 74). The government's right to issue search warrants against a citizen's papers and effects is circumscribed by the requirements mandated in the searches and seizures provision of the Constitution. In the case of Burgos, Sr. v. Chief of Staff, AFP (133 SCRA 800), we defined probable cause for a valid search "as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched." This constitutional provision also demands "no

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less than personal knowledge by the complainant or his witnesses of the facts upon which the issuance of a search warrant may be justified" in order to convince the judge, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of a probable cause. (Alvarez v. Court of First Instance, 64 Phil. 33; Burgos, Sr. v. Chief of Staff, AFP, supra). In the instant case, the lower court lifted the three questioned search warrants against the private respondents on the ground that it acted on the application for the issuance of the said search warrants and granted it on the misrepresentations of applicant NBI and its witnesses that infringement of copyright or a piracy of a particular film have been committed. Thus the lower court stated in its questioned order dated January 2,1986: According to the movant, all three witnesses during the proceedings in the application for the three search warrants testified of their own personal knowledge. Yet, Atty. Albino Reyes of the NBI stated that the counsel or representative of the Twentieth Century Fox Corporation will testify on the video cassettes that were pirated, so that he did not have personal knowledge of the alleged piracy. The witness Bacani also said that the video cassettes were pirated without stating the manner it was pirated and that it was Atty. Domingo that has knowledge of that fact. On the part of Atty. Domingo, he said that the re-taping of the allegedly pirated tapes was from master tapes allegedly belonging to the Twentieth Century Fox, because, according to him, it is of his personal knowledge. At the hearing of the Motion for Reconsideration, Senior NBI Agent Atty. Albino Reyes testified that when the complaint for infringement was brought to the NBI, the master tapes of the allegedly pirated tapes were shown to him and he made comparisons of the tapes with those purchased by their man Bacani. Why the master tapes or at least the film reels of the allegedly pirated tapes were not shown to the Court during the application gives some misgivings as to the truth of that bare statement of the NBI agent on the witness stand. " Again as the application and search proceedings is a prelude to the filing of criminal cases under PD 49, the copyright infringement law, and although what is required for the issuance thereof is merely the presence of probable cause, that probable cause must be satisfactory to the Court, for it is a time- honored precept that proceedings to put a man to task as an offender under our laws should be interpreted in strictissimi juris against the government and liberally in favor of the alleged offender. xxx xxx xxx This doctrine has never been overturned, and as a matter of fact it had been enshrined in the Bill of Rights in our 1973 Constitution. So that lacking in persuasive effect, the allegation that master tapes were viewed by the NBI and were compared to the purchased and seized video tapes from the respondents' establishments, it should be dismissed as not supported by competent evidence and for that matter the probable cause hovers in that grey debatable twilight zone between black and white resolvable in favor of respondents herein. But the glaring fact is that 'Cocoon,' the first video tape mentioned in the search warrant, was not even duly registered or copyrighted in the Philippines. (Annex C of Opposition p. 152 record). So, that lacking in the requisite presentation to the Court of an alleged master tape for purposes of comparison with the purchased evidence of the video tapes allegedly pirated and those seized from respondents, there was no way to determine whether there really was piracy, or copying of the film of the complainant Twentieth Century Fox." (pp. 37-39, Rollo) xxx xxx xxx The lower court, therefore, lifted the three (3) questioned search warrants in the absence of probable cause that the private respondents violated P.D. 49. As found out by the court, the NBI agents who acted as witnesses did not have personal knowledge of the subject matter of their testimony which was the alleged commission of the offense by the private respondents. Only the petitioner's counsel

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who was also a witness during the application for the issuance of the search warrants stated that he had personal knowledge that the confiscated tapes owned by the private respondents were pirated tapes taken from master tapes belonging to the petitioner. However, the lower court did not give much credence to his testimony in view of the fact that the master tapes of the allegedly pirated tapes were not shown to the court during the application. All these factors were taken into consideration by the lower court when it lifted the three questioned search warrants. There is no truth, therefore, to the petitioner's allegation that the lower court based its January 2, 1986 order only "on the fact that the original or master copies of the copyrighted films were not presented during the application for search warrants, thus leading it to conclude that it had been "misled by the applicant and his witnesses." (p. 17, Rollo) The presentation of the master tapes of the copyrighted films from which the pirated films were allegedly copied, was necessary for the validity of search warrants against those who have in their possession the pirated films. The petitioner's argument to the effect that the presentation of the master tapes at the time of application may not be necessary as these would be merely evidentiary in nature and not determinative of whether or not a probable cause exists to justify the issuance of the search warrants is not meritorious. The court cannot presume that duplicate or copied tapes were necessarily reproduced from master tapes that it owns. The application for search warrants was directed against video tape outlets which allegedly were engaged in the unauthorized sale and renting out of copyrighted films belonging to the petitioner pursuant to P.D. 49. The essence of a copyright infringement is the similarity or at least substantial similarity of the purported pirated works to the copyrighted work. Hence, the applicant must present to the court the copyrighted films to compare them with the purchased evidence of the video tapes allegedly pirated to determine whether the latter is an unauthorized reproduction of the former. This linkage of the copyrighted films to the pirated films must be established to satisfy the requirements of probable cause. Mere allegations as to the existence of the copyrighted films cannot serve as basis for the issuance of a search warrant. Furthermore, we note that the search warrants described the articles sought to be seized as follows: xxx xxx xxx xxx xxx xxx c) Television sets, Video Cassettes Recorders, rewinders, tape head cleaners, accessories, equipments and other machines used or intended to be used in the unlawful reproduction, sale, rental/lease distribution of the above-mentioned video tapes which she is keeping and concealing in the premises above-described." (p. 26, Rollo) In the case of Burgos v. Chief of Staff, AFP supra, we stated: xxx xxx xxx Another factor which makes the search warrants under consideration constitutionally objectionable is that they are in the nature of general warrants. The search warrants describe the articles sought to be seized in this wise: l] All printing equipment, paraphernalia, paper, ink, photo equipment, typewriters, cabinets, tables communications/recording equipment, tape recorders, dictaphone and the like used and/or connected in the printing of the 'WE FORUM' newspaper and any and all document/communications, letters and facsimile of prints related to "WE FORUM" newspaper. 2] Subversive documents, pamphlets, leaflets, books, and other publications to promote the objectives and purposes of the subversive organizations known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement; and

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3] Motor vehicles used in the distribution/circulation of the 'WE FORUM and other subversive materials and propaganda, more particularly, 1] Toyota-Corolla, colored yellow with Plate No. NKA 892; 2] DATSUN pick-up colored white with Plate No. NKV 969; 3] A delivery truck with Plate No. NBS 542; 4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665;and, 5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with marking "Bagong Silang." In Stanford v. State of Texas (379 U.S. 476,13 L ed 2nd 431), the search warrant which authorized the search for 'books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Parties of Texas, and the operations of the Community Party in Texas," was declared void by the U.S. Supreme Court for being too general. In like manner, directions to "seize any evidence in connection with the violation of SDC 13-3703 or otherwise' have been held too general, and that portion of a search warrant which authorized the seizure of any "paraphernalia which could be used to violate Sec. 54197 of the Connecticut General Statutes [the statute dealing with the crime of conspiracy]"' was held to be a general warrant, and therefore invalid (68 Am. Jur. 2d., pp. 736-737). The description of the articles sought to be seized under the search warrants in question cannot be characterized differently. (at pp. 814-815) Undoubtedly, a similar conclusion can be deduced from the description of the articles sought to be confiscated under the questioned search warrants. Television sets, video cassette recorders, reminders and tape cleaners are articles which can be found in a video tape store engaged in the legitimate business of lending or renting out betamax tapes. In short, these articles and appliances are generally connected with, or related to a legitimate business not necessarily involving piracy of intellectual property or infringement of copyright laws. Hence, including these articles without specification and/or particularity that they were really instruments in violating an Anti-Piracy law makes The search warrant too general which could result in the confiscation of all items found in any video store. In fact, this actually happened in the instant case. Thus, the lower court, in its questioned order dated October 8, 1985 said: Although the applications and warrants themselves covered certain articles of property usually found in a video store, the Court believes that the search party should have confined themselves to articles that are according to them, evidence constitutive of infringement of copyright laws or the piracy of intellectual property, but not to other articles that are usually connected with, or related to, a legitimate business, not involving piracy of intellectual property, or infringement of copyright laws. So that a television set, a rewinder, and a whiteboard listing Betamax tapes, video cassette cleaners video cassette recorders as reflected in the Returns of Search Warrants, are items of legitimate business engaged in the video tape industry, and which could not be the subject of seizure, The applicant and his agents therefore exceeded their authority in seizing perfectly legitimate personal property usually found in a video cassette store or business establishment." (p. 33, Rollo) All in all, we find no grave abuse of discretion on the part of the lower court when it lifted the search warrants it earlier issued against the private respondents. We agree with the appellate court's findings to the effect that: An assiduous examination of the assailed orders reveal that the main ground upon which the respondent Court anchored said orders was its subsequent findings that it was misled by the applicant (NBI) and its witnesses 'that infringement of copyright or a piracy of a particular film have been committed when it issued the questioned warrants.' Stated differently, the respondent Court merely corrected its erroneous findings as to the existence of probable cause and declared the search and seizure to be unreasonable. Certainly, such action is within the power and authority of the

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respondent Court to perform, provided that it is not exercised in an oppressive or arbitrary manner. Indeed, the order of the respondent Court declaring the existence of probable cause is not final and does not constitute res judicata. A careful review of the record of the case shows that the respondent Court did not commit a grave abuse of discretion when it issued the questioned orders. Grave abuse of discretion' implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other words, where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.' But far from being despotic or arbitrary, the assailed orders were motivated by a noble desire of rectifying an error, much so when the erroneous findings collided with the constitutional rights of the private respondents. In fact, the petitioner did not even contest the righteousness and legality of the questioned orders but instead concentrated on the alleged denial of due process of law." (pp. 44-45, Rollo) The proliferation of pirated tapes of films not only deprives the government of much needed revenues but is also an indication of the widespread breakdown of national order and discipline. Courts should not impose any unnecessary roadblocks in the way of the anti-film piracy campaign. However, the campaign cannot ignore or violate constitutional safeguards. To say that the problem of pirated films can be solved only by the use of unconstitutional shortcuts is to denigrate the long history and experience behind the searches and seizures clause of the Bill of Rights. The trial court did not commit reversible error. WHEREFORE, the instant petition is DISMISSED. The questioned decision and resolution of the Court of Appeals are AFFIRMED. SO ORDERED.

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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 152950 August 3, 2006 PEOPLE OF THE PHILIPPINES, HON. LOURDES F. GATBALITE, Presiding Judge, Branch 56, Regional Trial Court, Angeles City and ATTY. BENNIE NICDAO, Special Prosecutor, Special Operative Group, Economic Intelligence & Investigation Bureau, Petitioners, vs. CHRISTOPHER CHOI, Respondent. DECISION CORONA, J.: This petition for review on certiorari 1 seeks the reversal of the decision 2 of the Court of Appeals (CA) dated April 10, 2002 in CA-G.R. SP No. 59587, the dispositive portion of which read: WHEREFORE, the petition for certiorari and prohibition is GRANTED. Search Warrant No. 99-17 is deemed NULLand VOID and SET ASIDE. Respondent ATTY. BENNY NICDAO is prohibited from using in evidence the articles seized by virtue of Search Warrant No. 99-17 in Crim. Case No. I.S. No. 99-8116. SO ORDERED. 3 The factual antecedents follow. On April 27, 1999, Mario P. Nieto, Intelligence Operative of the Economic Intelligence and Investigation Bureau, Department of Finance, applied for a search warrant with the Regional Trial Court (RTC) of Angeles City, Pampanga, Branch 56, 4 against respondent Christopher Choi for violation of Section 168, paragraphs 2 and 3 (a) and (c), in relation to Section 169 of RA 8293, 5 also known as the Intellectual Property Code. 6 After examination of the applicant and his witnesses, namely, Max Cavalera and David Lee Sealey, Judge Lourdes F. Gatbalite issued Search Warrant No. 99-17 dated April 27, 1999 worded as follows: TO ANY PEACE OFFICER: G r e e t i n g s: It appearing to the satisfaction of the undersigned, after examining under oath in the form of searching and probing questions, the applicant, MARIO P. NIETO, Intelligence Operative, Economic Intelligence Investigation Bureau, Department of Finance, and his witnesses Max Cavalera and David Lee Sealey that there are good and sufficient reasons to believe that Christopher Choi of No. 25-13 Columbia Street, Carmenville Subd., Angeles City has in his possession, control and custody [r]eams and packs of fake Marlboro Red Cigarettes, as well as cardboard cases of fake Marlboro Red Cigarettes (each cardboard case contains two (2) [m]aster [c]ases of Marlboro and each [m]aster case contains fifty (50) reams) being distributed, kept and sold thereat in violation of Section 168, par. 2 and 3 (a) and (c) in relation to Section 169 of R.A. 8293; You are hereby commanded to make an immediate search at anytime of the day or night of the above-premises and forthwith seize and take possession of the aforedescribed items found at the residence/warehouse of Christopher Choi at No. 25-13 Columbia Street, Carmenville Subd., Angeles City. THEREFORE, seize and bring the said articles to the undersigned to be dealt with in accordance with law.

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You are hereby further directed to submit a return within ten (10) days from today. Given under my hand this 27th day of April, 1999 at Angeles City, Philippines. 7 The search was conducted on the same date. 8 On May 12, 1999, respondent filed a "motion to quash search warrant" 9 and a "supplemental motion to quash" 10on June 22, 1999. Both were denied by Judge Gatbalite in an order dated November 29, 1999. 11 Reconsideration was likewise denied. 12 On June 19, 2000, respondent filed a petition for certiorari and prohibition 13 before the CA. He alleged that Judge Gatbalite committed grave abuse of discretion in refusing to quash the search warrant, arguing that probable cause was not sufficiently established as the examination conducted was not probing and exhaustive and the warrant did not particularly describe the place to be searched. Respondent also prayed that Atty. Bennie Nicdao14 be prohibited from using as evidence the articles seized by virtue of the search warrant. This was granted by the CA in a decision dated April 10, 2002. According to the CA, in determining whether there was probable cause to believe that the cigarettes purchased by Nieto were fake and in violation of RA 8293, 15 Judge Gatbalite failed to ask searching and probing questions of witness David Lee Sealey. 16 The examination of Sealey went this way: Court: Q There was testimony here given by Mr. Mario Nieto and Max Cavalera, that fake Marlboro cigarettes bought by them from Michael Chua, Christopher Choi and Johnny Chang were turned over to you for examination, is that correct? A Yes, your Honor. Q After the same had been turned over to you, what did you do with the said merchandise, if you did anything? A I examined the sample of cigarettes and their packaging bearing the Marlboro Trade Marks which were suspected to be produc[ed] and manufactured by La Suerte or [with] the permission of Philip Morris. Q What was the result of your examination? A Based on the packaging of the packs, the color of the box and the printing on the front side of the packs and the cigarettes themselves, I concluded that they are counterfeit or unauthorized product[s]. Q Do you have any knowledge of this person named Christopher Choi? A None, your Honor. Q There is an affidavit here marked as exhibit, executed by one David Lee Sealey, do you know this David Lee Sealey? A Yes, your Honor, I am the one. Q Whose signature is this appearing on the printed name David Lee Sealey? A This is my signature, your Honor. Q Do you affirm and confirm other contents of this affidavit? A Yes, your Honor. Court:

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Thats all. 17 In addition, the CA ruled that Judge Gatbalite committed grave abuse of discretion when she merely relied on the conclusion of Sealey that the cigarettes he received from Nieto were fake. She should have at least required Sealey to present the alleged fake Marlboro cigarettes and the genuine ones for comparison, instead of relying on his testimony alone. The CA reasoned that this was an absolute requirement under the Supreme Court ruling in20th Century Fox Film Corporation v. Court of Appeals. 18 Hence, this petition. The People of the Philippines aver that the CA erred in finding that Judge Gatbalite committed grave abuse of discretion in issuing the search warrant allegedly because she failed to determine probable cause pursuant to Sections 4 and 5 of Rule 126 of the Rules of Court. 19 The People assail the finding of the CA that, in issuing the search warrant, Judge Gatbalite purportedly did not comply strictly with the requirement to determine the existence of probable cause by personally examining the applicant and his witnesses through searching questions and answers. The People also assert that the CA erred in applying the doctrine in 20th Century Fox Film Corporation20 since it had already been superseded by Columbia Pictures, Inc. v. Court of Appeals. 21 We rule for the People of the Philippines. Sections 4 and 5 of Rule 126 state: Sec. 4. Requisites for issuing search warrant. A search warrant shall not issue except upon probable cause in connection with one specific offense 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 things to be seized which may be anywhere in the Philippines. Sec. 5. Examination of complainant; record. The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. According to the foregoing provisions, a search warrant can be issued only upon a finding of probable cause. Probable cause means such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. 22 The determination of the existence of probable cause requires the following: (1) the judge must examine the complainant and his witnesses personally; (2) the examination must be under oath and (3) the examination must be reduced in writing in the form of searching questions and answers. 23 The searching questions propounded to the applicant and the witnesses depend largely on the discretion of the judge. Although there is no hard-and-fast rule governing how a judge should conduct his examination, it is axiomatic that the examination must be probing and exhaustive, not merely routinary, general, peripheral, perfunctory or pro-forma. 24 The judge must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application. 25 The questions should not merely be repetitious of the averments stated in the affidavits or depositions of the applicant and the witnesses. 26 If the judge fails to determine probable cause by personally examining the applicant and his witnesses in the form of searching questions before issuing a search warrant, grave abuse of discretion is committed. 27 The determination of probable cause does not call for the application of rules and standards of proof that a judgment of conviction requires after trial on the merits. As the term implies, probable cause is concerned with probability, not absolute or even moral certainty. The standards of judgment are those of a reasonably prudent man, not the exacting calibrations of a judge after a full-blown trial. 28 No law or rule states that probable cause requires a specific kind of evidence. No formula or fixed rule for its determination exists. 29 Probable cause is determined in the light of conditions

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obtaining in a given situation. 30 The entirety of the questions propounded by the court and the answers thereto must be considered by the judge. 31 In this case, aside from the testimony of Sealey, petitioner judge also heard the testimony of applicant Nieto: Q: In connection with Search Warrant 99-17, are you the same Mario Nieto who is the applicant in this application for search warrant filed today April 27, 1999? A: Yes, your Honor. Q: Do you know this Christopher Choi referred to herein? A: Yes, your Honor. Q: Why do you know him? A: He was introduced to us by Michael Chua, your Honor. Q: As what? A: As the supplier for the goods. Q: Subject of the application? A: Yes, your Honor, in violation of Section 169 of R.A. 8293. Q: How did you know him? A: When I was conducting a test-buy operation against Mr. Michael Chua, Mr. Michael Chua told me that the bulk of supply if we need more supply we can get from the source, a certain Christopher Choi, who lives in the same village and who is actually the supplier for the entire region. Q: Where did you see him. This Christopher Choi? A: I went to his house, your Honor. Q: Where? A: At No. 25-13 Columbia St., Carmenville Subd., Angeles City, Pampanga. Q: Upon arriving at the place what did you do? A: Upon arriving at the place, your Honor, I introduced myself as the one who was referred by a certain Michael Chua who is interested in buying the Marlboro cigarettes from him and he accommodated me and showed me the sample that he has and I was able to procure the samples from him, the samples that like what we did to the others were inspected by certain Mr. David Lee Sealey, the representative and authority from the Philip Morris. Q: Did you actually buy those samples? A: Yes, your Honor, I got the samples form Mr. Christopher Choi and I submitted them to Mr. David Lee Sealey. Q: How many Marlboro cigarettes did you buy? A: We bought only one ream, P17.00 per pack. Q: Do you know from what particular place the house of Christopher Choi did he got (sic) those samples?

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A: The volume stocks were found inside the house, they are almost everywhere in the house of Christopher Choi. Q: There is a sketch here attached to your application, can you point it out here? A: Yes, your Honor, at the warehouse, in the storage room as shown in the lay out of the house, it is adjacent to the residential house as shown in the sketch. Q: You went to the warehouse? A: We were shown [the] entire area by the supplier, Christopher Choi. As a matter of fact he was trying to show us how much volume he has and his capacity to supply. 32 Max Cavalera, a witness who accompanied Nieto during the "test-buy" operation, 33 also testified: Q How about this Christopher Choi? A As Ive said earlier, he was one of those identified by the informant storing and selling counterfeit Marlboro cigarettes, so on April 22, 1999 we conducted a surveillance and we were able to confirm that the said cigarettes are being stored at the subject place. Q At what place? A At 25-13 Columbia St., Carmenville Subd., Angeles City. On April 23, 1999 at about 8:30 p.m., Mario Nieto and I again went to the subject place to conduct a test-buy operation. [A]fter Mr. Choi had been convinced of our intention to buy cigarettes from him, he brought us to his warehouse where he showed to us several cardboard cases of Marlboro cigarettes. 34 Given the foregoing testimonies and applying the established standards in determining probable cause, we cannot say that Judge Gatbalite committed grave abuse of discretion in issuing the search warrant. Her questions were sufficiently probing, not at all superficial and perfunctory. The testimonies were consistent with each other and the narration of facts was credible. The testimonies and other evidence on record constituted adequate bases to establish probable cause that the alleged offense had been committed. Since probable cause is dependent largely on the opinion and findings of the judge who conducted the examination and who had the opportunity to question the applicant and his witnesses, 35 the findings of the judge deserve great weight. The reviewing court can overturn such findings only upon proof that the judge disregarded the facts before him or ignored the clear dictates of reason. 36 We thus find no reason to disturb Judge Gatbalites findings. Furthermore, as correctly pointed out by petitioners, 20th Century Fox Film Corporation, insofar as it required the presentation of the master tapes for comparison with the pirated copies for a search warrant to issue, had already been superseded by Columbia Pictures, Inc. v. Court of Appeals: More to the point, it is felt that the reasonableness of the added requirement in 20th Century Fox calling for the production of the master tapes of the copyrighted films for determination of probable cause in copyright infringement cases needs revisiting and clarification. xxx xxx xxx In fine, the supposed pronunciamento in said case regarding the necessity for the presentation of the master tapes of the copyrighted films for the validity of search warrants should at most be understood to merely serve as a guidepost in determining the existence of probable cause in copyright infringement cases where there is doubt as to the true nexus between the master tape and the pirated copies. An objective and careful reading of the decision in said case could lead to no other conclusion than that said directive was hardly intended to be a sweeping and inflexible requirement in all or similar copyright infringement cases. Judicial dicta should always be construed within the factual matrix of their parturition, otherwise a careless interpretation thereof could unfairly fault the writer with the vice of overstatement and the reader with the fallacy of undue generalization. xxx xxx xxx

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It is evidently incorrect to suggest, as the ruling in 20th Century Fox may appear to do, that in copyright infringement cases, the presentation of master tapes of the copyrighted films is always necessary to meet the requirement of probable cause and that, in the absence thereof, there can be no finding of probable cause for the issuance of a search warrant. It is true that such master tapes are object evidence, with the merit that in this class of evidence the ascertainment of the controverted fact is made through demonstrations involving the direct use of the senses of the presiding magistrate. Such auxiliary procedure, however, does not rule out the use of testimonial or documentary evidence, depositions, admissions or other classes of evidence tending to prove the factum probandum, especially where the production in court of object evidence would result in delay, inconvenience or expenses out of proportion to its evidentiary value. xxx xxx xxx Accordingly, to restrict the exercise of discretion by a judge by adding a particular requirement (the presentation of master tapes, as intimated by 20th Century Fox) not provided nor implied in the law for a finding of probable cause is beyond the realm of judicial competence or statesmanship. It serves no purpose but to stultify and constrict the judicious exercise of a courts prerogatives and to denigrate the judicial duty of determining the existence of probable cause to a mere ministerial or mechanical function. There is, to repeat, no law or rule which requires that the existence of probable cause is or should be determined solely by a specific kind of evidence. Surely, this could not have been contemplated by the framers of the Constitution, and we do not believe that the Court intended the statement in 20th Century Fox regarding master tapes as the dictum for all seasons and reasons in infringement cases. 37 (emphasis supplied) It is obvious that 20th Century Fox Film Corporation should not be applied to the present case since this involves the offense of unfair competition and not copyright infringement. More importantly, as pronounced by the Court inColumbia Pictures, Inc., the judges exercise of discretion should not be unduly restricted by adding a requirement that is not sanctioned by law. WHEREFORE, the petition is hereby GRANTED. The assailed decision of the Court of Appeals dated April 10, 2002 in CA-G.R. SP No. 59587 is REVERSED and SET ASIDE. Judgment is hereby rendered declaring Search Warrant No. 99-17 as VALID. SO ORDERED.

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-69803 October 8, 1985 CYNTHIA D. NOLASCO, MILA AGUILAR-ROQUE and WILLIE C. TOLENTINO, petitioners, vs. HON. ERNANI CRUZ PAO, Executive Judge, Regional Trial Court of Quezon City; HON. ANTONIO P. SANTOS, Presiding Judge, Branch XLII, Metropolitan Trial Court of Quezon City: HON. SERGIO F. APOSTOL, City Fiscal, Quezon City; HON. JUAN PONCE ENRILE, LT. GEN. FIDEL RAMOS and COL. JESUS ALTUNA, respondents. Jose W .Diokno, Joker P. Arroyo, Rene A. V. Sarmiento, Dan Malabonga and Cesar Maravilla for petitioners.

MELENCIO-HERRERA, J.: The facts before the Court in these Certiorari, Prohibition, and mandamus proceedings will be briefly stated. The three petitioners will be referred to through their surnames of NOLASCO, AGUILARROQUE and TOLENTINO. 1. Prior to August 6, 1984 (hereinafter to be referred to without the year), AGUILAR-ROQUE was one of the accused of Rebellion in Criminal Case No. MC-25-113 of Military Commission No. 25, both cases being entitled "People of the Philippines vs. Jose Ma. Sison, et al." She was then still at large. 2. At 11:30 A.M. on August 6th, AGUILAR-ROQUE and NOLASCO were arrested by a Constabulary Security Group (CSG) at the intersection of Mayon Street and P. Margall Street, Quezon City. The stated time is an allegation of petitioners, not denied by respondents. The record does not disclose that a warrant of arrest had previously beeen issued against NOLASCO. 3. At 12:00 N. on August 6th, elements of the CSG searched the premises at 239-B Mayon Street, Quezon City. The stated time is an allegation of petitioners, not specifically denied by respondents. In their COMMENT, however, respondents have alleged that the search was conducted "late on the same day"; that is late on august 6th. 4. On August 6th, at around 9:00 A.M., Lt. Col. Virgilio G. Saldajeno of the CSG, applied for a Search Warrant from respondent 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 tyo 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. In connection with the Search Warrant issued, the following may be stated: (a) The Search Warrant was issued in proceedings entitled "People of the Philippines vs. Mila Aguilar-Roque, Accused, Search Warrant No. 80- 84 for rebellion" (the SEARCH WARRANT CASE). Judge Panos Court was Branch 88. (b) It does not appear from the records before us that an application in writing was submitted by Lt. Col. Saldajeno to Judge Pao. (c) According to the record, Lt. Col. Saldajeno and his witness S/A Dionicio A. Lapus, were examined under oath by Judge Pao but only the deposition of S/A Lapus has been submitted to us. The latter deposed that to his personal knowledge, there were kept in the premises to be searched records, documents and other papers of the CPP/NPA and the National Democratic Front, including support money from foreign and local sources intended to be used for rebellion. 1

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5. In connection with the search made at 12:00 N. of August 6th the following may be stated: (a) TOLENTINO was a person then in charge of the premises. He was arrested by the searching party presumably without a warrant of arrest. (b) The searching party seized 428 documents and written materials, 2 and additionally a portable typewriter, and 2 wooden boxes, making 431 items in all. 3 (c) According to the Return, submitted in the SEARCH WARRANT CASE on August 10th, 4 the search was made in the presence of Dra. Marciana Galang, owner of the premises, and of two (2) Barangay Tanods. No mention was made that TOLENTINO was present. The list of the 428 articles and documents attached to the Return was signed by the two Barangay Tanods, but not by Dra. Galang. 6. (a) On August 10th, the three petitioners, AGUILAR-ROQUE, NOLASCO and TOLENTINO, were charged before the Quezon City Fiscal's Office (the CITY FISCAL, for short) upon complaint filed by the CSG against petitioners for "Subversion/Rebellion and/or Conspiracy to Commit Rebellion/Subversion." (b) On August 13th, the CITY FISCAL filed an Information for Violation of Presidential Decree No. 33 (Illegal Possession of Subversive Documents) against petitioners before Branch 42 of the Metropolitan Trial Court of Quezon City (the SUBVERSIVE DOCUMENTS CASE), respondent Judge Antonio P. Santos, presiding. (c) On August 16th, 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 16th. 7. (a) On September 10th, 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 Fiscal's Office and the court. 5 (b) On September 28th, petitioners were required by Judge Pano to comment on the Amended Return, which AGUILAR-ROQUE did on October 18th, raising the issue of the inadmissibility of any evidence obtained pursuant to the Search Warrant. (c) On December 13, 1984, 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." 8. (a) On December 12th, petitioners filed a Motion to Suppress in the SUBVERSIVE DOCUMENTS CASE, 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 January 7, 1985 on the ground that the validity of the Search Warrant has to be litigated in the SEARCH WARRANT CASE. He was apparently not aware of the Order of Judge Pao of December 13th issued in the SEARCH WARRANT CASE. Hence, this Petition for Certiorari, Prohibition and mandamus to annul and set aside the (1) Search Warrant issued by respondent RTC Judge Pao; (2) his Order admitting the Amended Return and granting the Motion to Retain Seized Items; and (3) Order of respondent MTC Judge Santos denying petitioners' Motion to Suppress. This Court, on February 12, 1985, issued a Temporary Restraining Order enjoining the respondents or their duly authorized representatives from introducing evidence obtained under the Search Warrant. The PETITIONERS principally assert that the Search Warrant is void because it is a general warrant since it does not sufficiently describe with particularity the things subject of the search and seizure, and that probable cause has not been properly established for lack of searching questions propounded to the applicant's witness. The respondents, represented by the Solicitor General, contend otherwise, adding that the questions raised cannot be entertained in this present petition without petitioners first moving for the quashal of the disputed Search Warrant with the issuing Judge.

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We find merit in the Petition. Section 3, Article IV of the Constitution, guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose. It also specifically provides that no Search Warrant shall issue except upon probable cause to be determined by the Judge or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized. The disputed Search Warrant (No. 80-84) describes the personalities to be seized as follows: Documents, papers and other records of the Communist Party of the Phihppines/New Peoples Army and/or the National Democratic Front, such as Minutes of the Party Meetings, Plans of these groups, Programs, List of possible supporters, subversive books and instructions, manuals not otherwise available to the public, and support money from foreign or local sources. It is at once evident that the foregoing Search Warrant authorizes the seizure of personal properties vaguely described and not particularized. It is an all- embracing description which includes everything conceivable regarding the Communist Party of the Philippines and the National Democratic Front. It does not specify what the subversive books and instructions are; what the manuals not otherwise available to the public contain to make them subversive or to enable them to be used for the crime of rebellion. There is absent a definite guideline to the searching team as to what items might be lawfully seized thus giving the officers of the law discretion regarding what articles they should seize as, in fact, taken also were a portable typewriter and 2 wooden boxes. It is thus in the nature of a general warrant and infringes on the constitutional mandate requiring particular description of the things to be seized. In the recent rulings of this Court, search warrants of similar description were considered null and void for being too general. Thus:
Subversive documents, pamphlets, leaflets, books, and other publications to promote the objectives and purposes of the subversive organizations known as Movement for Free Philippines. Light-a-Fire Movement and April 6 Movement. 6 The things to be seized under the warrant issued by respondent judge were described as 'subversive documents, propaganda materials, FAs, printing paraphernalia and all other subversive materials Such description hardly provided a definite guideline to the search team as to what articles might be lawfully seized thereunder. Said description is no different from if not worse than, the description found in the search warrants in "Burgos, et al. v. the Chief of Staff"which this Court declared null and void for being too general. 7 In the case at bar, the search warrant issued by respondent judge allowed the seizure of printed copies of the Philippine Times, manuscripts/drafts of articles for publication, newspaper dummies subversive documents, articles, etc., and even typewriters, duplicating machines, mimeographing and tape recording machines. Thus, the language used is so all embracing as to include all conceivable records and equipment of petitioner regardless of whether they are legal or illegal. The search warrant under consideration was in the nature of a general warrant which is constitutionally objectionable. 8

The lack of particularization is also evident in the examination of the witness presented by the applicant for Search Warrant. Q Mr. Dionicio Lapus, there is an application for search warrant filed by Lt. Col. Virgilio Saldajeno and the Court would like to know if you affirm the truth of your answer in this deposition? (The deposition instead) A Yes, sir, Q How long did it take you for the surveillance? A Almost a month, sir. Q Are you a lawyer, Mr. Lapus?

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A No, Your Honor, but I was a student of law. Q So, you are more or less familiar with the requisites of the application for search warrant? A Yes, Your Honor. Q How did you come to know of the person of Mila Aguilar-Roque? A Because of our day and night surveillance, Your Honor, there were so many suspicious persons with documents. Q What kind of documents do you refer to? A Documents related to the Communist Party of Philippines and New People's Army. Q What else? A Conferences of the top ranking officials from the National Democratic Front, Organization of the Communist Party of the Philippines ... Q And may include what else?
A Other papers and documents like Minutes of the Party Meetings, Plans of these groups, Programs, List of possible supporters, subversive books and instructions, manuals not otherwise 9 available to the public and support money from foreign and local sources.

The foregoing questions propounded by respondent Executive Judge to the applicant's witness are not sufficiently searching to establish probable cause. The "probable cause" required to justify the issuance of a search warrant comprehends such facts and circumstances as will induce a cautious man to rely upon them and act in pursuant thereof. 10 Of the 8 questions asked, the 1st, 2nd and 4th pertain to Identity. The 3rd and 5th are leading not searching questions. The 6th, 7th and 8th refer to the description of the personalities to be seized, which is Identical to that in the Search Warrant and suffers from the same lack of particularity. The examination conducted was general in nature and merely repetitious of the deposition of said witness. Mere generalization will not suffice and does not satisfy the requirements of probable cause upon which a warrant may issue. 11 Respondents claim, however, that the proper forum for questioning the illegality of a Search Warrant is with the Court that issued it instead of this original, independent action to quash. The records show, however, that petitioners did raise that issue in the SEARCH WARRANT CASE in their Comment, dated October 18, 1984. In fact, they already questioned the admissibility of the evidence obtained under the Search Warrant, even during the inquest investigation on August 10, 1984. And in the SUBVERSIVE DOCUMENTS CASE, they filed a Motion to Suppress on December 12, 1984 claiming that the proceedings under the Search Warrant were unlawful. Substantially, therefore, while not denominated as a motion to quash, petitioners had questioned the legality of the Search Warrant. Parenthetically, it strikes the Court that the pendency of the SEARCH WARRANT CASE and of the SUBVERSIVE DOCUMENTS CASE before two different Courts is not conducive to an orderly administration of justice. It should be advisable that, whenever a Search Warrant has been issued by one Court, or Branch, and a criminal prosecution is initiated in another Court, or Branch, as a result of the service of the Search Warrant, the SEARCH WARRANT CASE should be consolidated with the criminal case for orderly procedure. The later criminal case is more substantial than the Search Warrant proceeding, and the Presiding Judge in the criminal case should have the right to act on petitions to exclude evidence unlawfully obtained. 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 in the case at bar to AGUILAR-ROQUE. Some searches may be made without a warrant. Thus, Section 12, Rule 126, Rules of Court, explicitly provides:

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Section 12. Search without warrant of person arrested.A person charged with an offense may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense. The provision 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. 12 "What must be considered is the balancing of the individual's right to privacy and the public's interest in the prevention of crime and the apprehension of criminals." 13 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, we are 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 No.1 to return to her any and all irrelevant documents and articles. WHEREFORE, while Search Warrant No. 80-84 issued on August 6, 1984 by respondent Executive Judge Ernani Cruz Pao is hereby annulled and set aside, and the Temporary Restraining Order enjoining respondent from introducing evidence obtained pursuant to the Search Warrant in the Subversive Documents case hereby made permanent, the, personalities seized may be retained by the Constabulary Security Group for possible introduction as evidence in Criminal Case No. SMC-11, pending before Special Military commission No. 1, without prejudice to petitioner Mila AguilarRoque objecting to their relevance and asking said Commission to return to her any and all irrelevant documents and articles. SO ORDERED.

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Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 122092 May 19, 1999 PAPER INDUSTRIES CORPORATION OF THE PHILIPPINES, EVARISTO M. NARVAEZ JR., RICARDO G. SANTIAGO, ROBERTO A. DORMENDO, REYDANDE D. AZUCENA, NICEFORO V. AVILA, FLORENTINO M. MULA, FELIX O. BAITO, HAROLD B. CELESTIAL, ELMEDENCIO C. CALIXTRO, CARLITO S. LEGACION, ALBINO T. LUBANG, JEREMIAS I. ABAD and HERMINIO V. VILLAMIL,petitioners, vs. JUDGE MAXIMIANO C. ASUNCION, Presiding Judge, Branch 104, Regional Trial Court of Quezon City; STATE PROSECUTOR LEO B. DACERA III; and the SPECIAL OPERATIONS UNIT OF THE PNP TRAFFIC MANAGEMENT COMMAND, respondents.

PANGANIBAN, J.: To preserve and to uphold the constitutional right against unreasonable searches and seizures, the requisites for the issuance of search warrant must be followed strictly. Where the judge fails to personally examine the applicant for a search warrant and the latter's witnesses, or where the witnesses testify on matters not of their own personal knowledge, the search warrant must be struck down. The Case Before us is a petition for Certiorari and Prohibition 1 praying for (1) the nullification of Search Warrant No. 799 (95) and the Orders dated March 23, 1993 and August 3, 1995, issued by the Regional Trial Court (RTC), Branch 104, of Quezon City; 2 and (2) the issuance of temporary restraining order (TRO) or an injunction against State Prosecutor Leo B. Dacera III, ordering him to desist proceeding with IS No. 95-167. In its October 23, 1995 Resolution, 3 this Court issued the TRO prayed for and required the respondents to comment on the said Petition. On December 20, 1995, Respondent PNP Traffic Management Command filed its 31-page Opposition 4 to the Petition, together with 90 pages of annexes. 5 On February 22, 1996, the Office of the Solicitor General filed its Comment 6 agreeing with petitioners that the writs prayed for must be granted. After petitioners filed a Reply to the Opposition, the Court gave due course to the Petition and required the parties to submit their respective memoranda. In view of the contrary opinion of the Office of the Solicitor General, the Court, in its February 5, 1997 Resolution, 7 required State Prosecutor Leo B. Dacera to prepare the memorandum for the public respondents. After issuing a show-cause order to Dacera on June 23, 1997, 8 the Court in its September 24, 1997 Resolution gave him a non-extendible period ending on October 31, 1997 within which to file the required memorandum. In view of Dacera's manifestation that he was only a nominal party and that he had yet to receive the records of the case from the PNP, the Court, in its December 8, 1999 Resolution, ordered the Special Operations Unit (SOU) of the PNP Traffic Management Command to file its memorandum within thirty days from notice; "otherwise, the petition will be deemed submitted for decision." 9 Even after the expiration of the said period, the required pleading was not yet received by this Court. Hence, this Court considered Respondent SOU's refusal/failure to submit its memorandum as a waiver of its privilege to do so. The Facts

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On January 25, 1995, Police Chief Inspector Napoleon B. Pascua applied for a search warrant before the said RTC of Quezon City, staring: 10 1. That the management of Paper Industries Corporation of the Philippines, located at PICOP compound, Barangay Tabon, Bislig, Surigao del Sur, represented by its Sr. Vice President Ricardo G[.] Santiago, is in possession or ha[s] in [its] control high powered firearms, ammunitions, explosives, which are the subject of the offense, or used or intended to be used in committing the offense, and which . . . are [being kept] and conceal[ed] in the premises herein described. 2. That a Search Warrant should be issued to enable any agent of the law to take possession and bring to this Honorable Court the following described properties: Seventy (70) M16 Armalite rifles cal. 5.56, ten (10) M16 US rifles, two (2) AK-47 rifle[s], two (2) UZI submachinegun[s], two (2) M203 Grenade Launcher[s] cal. 40mm, ten (10) cal.45 pistol[s], ten (10) cal.38 revolver[s], two (2) ammunition reloading machine[s], assorted ammunitions for said calibers of firearms and ten (10) handgrenades. Attached to the application 11 were the joint Deposition of SPO3 Cicero S. Bacolod and SPO2 Cecilio T. Morito, 12 as well as a summary of the information and the supplementary statements of Mario Enad and Felipe Moreno. After propounding several questions to Bacolod, Judge Maximiano C. Asuncion issued the contested search warrant, 13 the pertinent portion of which reads: It appearing to the satisfaction of the undersigned, after examining under oath, SPO3 Cicero S. Bacolod, that there is probable cause to believe that the management of Paper Industries Corporation of the Philippines, located at PICOP Compound, Barangay Tabon, Bislig, Surigao del Sur, represented by its Sr. Vice President Ricardo G. Santiago, has in its possession or control the following: Seventy (70) M16 Armalite rifles cal 5.56 Ten (10) M14 US rifles Two (2) AK-47 rifle(s) Two (2) UZI submachinegun[s] Two (2) M203 Grenade Launcher[s] cal. 40mm. Ten (10) cal 45 pistol[s] Ten (10) cal. 38 revolver[s] Two (2) ammunition reloading machine[s] Assorted ammunitions for said calibers of firearms Ten (l0) handgrenades in violation of the Provisions of PD 1866 (Illegal Possession of Firearms, Ammunition and Explosives), and the same should be seized and brought before this Court.
NOW, THEREFORE, you are hereby authorized to make an immediate search daytime between 8:00 a.m. [and] 4:00 p.m. of the aforementioned premises and to seize and bring the articles above-described and make an immediate return there[of] 14

On February 4, 1995, the police enforced the search warrant at the PICOP compound and seized the following: 15

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MAKE/TYPE CALIBER SERIAL NUMBER BRAND 01 M16 Rifle 5.56 RP 175636 Elisco 02 M16 Rifle 5.56 RP 175636 (Tampered) Elisco 03 M16Rifle 5.56 RP 171702 Elisco 04 M16Rilfe 5.56 Defaced Elisco 05 M16Rifle 5.56 RP174253 (Tampered) Elisco 06 M16Rifle 5.56 RP173627 (Tampered) Elisco 07 M16Rifle 5.56 RP171337 Elisco 08 M16Rifle 5.56 RP171114 Elisco 09 M16Rifle 5.56 RP171114 (Tampered) Elisco 10 M16Rifle 5.56 RP171167 (Tampered) Elisco 11 M16Rifle 5.56 170881 (Tampered) Elisco 12 M16Rifle 5.56 RP170897 Elisco 13 M16Rifle 5.56 RP171509 Elisco (With pending case-Casaway Case) 14 M16Rifle 5.56 RP171754 Elisco 15 M16Rifle 5.56 RP170881 (Tampered) Elisco 16 M16Rifle 5.56 RP174637 Elisco 17 M16Rifle 5.56 RP171366 Elisco 18 M16Rifle 5.56 RP1714637 (Tampered) Elisco 19 M16Rifle 5.56 RP174610 Elisco 20 M16Rifle 5.56 RP171367 (Tampered) Elisco 01 M14 7.62 1499694 Elisco 02 M14 7.62 889163 Elisco 01 BAR Cal. 30 865975 Royal 01 Carbine M1 Cal. 30 384181 US Carbin 02 Carbine M1 Cal. 30 998201 US Carbin 01 Garand M1 Cal. 30 1194008 Springfield 02 Garand M1 Cal. 30 3123784 Springfield

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01 Shotgun 12 Gauge H359704 Omega 02 Shotgun 12 Gauge 9211 Homemade

MAGAZINE ASSEMBLY QTY. 01 M16 (long) 29 pcs. 02 M16 (short) 48 pcs. 03 Carbine M1 171 pcs. 04 BAR 19 pcs. LIVE AMMUNITION QTY. 01 M16 2,023 rounds 03 Carbine M1 276 rounds 04 M-60 Cal. 7.62 1,800 rounds 05 M1 Garand 1,278 rounds 06 Rifle Grenade 11 rounds 07 Hand Grenade 4 pcs. AMMO DAM POST NO. 24 MAKE/TYPE CALIBER SERIAL NUMBER BRAND 01 M16 5.56 171425 (Tampered) Gyno Corp. 02 Machine Pistol .22 651 (Tampered) Landmann MAGAZINE ASSEMBLY QTY. 01 M1 (short) 3 pcs. 02 M16 (long) 1 pc. 03 M14 8 pcs. 04 Clip M1 Garand 3 pcs. 05 Mag Assy Cal .22 1 pc. LIVE AMMUNITION QTY. 01 M16 73 rounds

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02 M14 160 rounds 03 M1 Garand Cal .30 30 rounds 04 Rifle Grenade 1 round MANAGEMENT INTEL/INVEST UNIT MAKE/TYPE CALIBER SERIAL NUMBER BRAND 01 M16Rifle 5.56 RP 171725 Elisco 02 M16Rifle 5.56 RP 170799 (Tampered) Elisco 03 M16 5.56 RP 132320 Elisco 04 Machine 9 MM 54887 Intratec Pistol 05 Three (3) 12 Gauge Surit-Surit (H) Shotguns MAGAZINE ASSEMBLY QTY. 01 M16 (long) 3 pcs. 02 M16 (short) 4 pcs. 03 Intratec 1 pc. 04 US Carbine (defective) 2 pcs. LIVE AMMUNITION QTY. 01 M16 147 rds. 02 Cal .30 5 rounds 03 12 gauge Shotgun 7 rounds 04 Carbine 5 rounds 05 Rifle grenade (AVA-0051-84/0056-84) 2 rounds 06 9 MM 30 rounds NEW ARMORY POST NO. 16 MAKE/TYPE CALIBER SERIAL NUMBER BRAND 01 Shotgun 12 Gauge A359910 Armscor 02 Shotgun 12 Gauge A359716 Armscor 03 Shotgun 12 Gauge A359706 Armscor 04 Shotgun 12 Gauge A359707 Armscor

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05 Shotgun 12 Gauge 1036847 Armscor 06 Shotgun 12 Gauge A359702 Armscor 07 Shotgun 12 Gauge A359732 Armscor 08 Shotgun 12 Gauge A359728 Armscor 09 Shotgun 12 Gauge A359708 Armscor 10 Shotgun 12 Gauge A359711 Armscor 11 Shotgun 12 Gauge A359723 Armscor 12 Shotgun 12 Gauge A359713 Armscor 13 Shotgun 12 Gauge 1031271 Armscor 14 Shotgun 12 Gauge A262338 SB 15 Shotgun 12 Gauge A261619 SB 16 Shotgun 12 Gauge Defaced Not Indicated LIVE AMMUNITION QTY. 01 12 GAUGE shotgun 306 rds. 02 M16 2,349 rds. MAGAZINE ASSEMBLY QTY. 01 Carbine (defective) 76 pcs. 02 Cal. 22 -do- 16 pcs 03 M16 (long-defective) 2 pcs. 04 M16 (short-defective) 2 pcs. 05 Thompson (defective) 8 pcs. 06 Shotgun 12 Gauge (defective) 17 pcs. 07 BAR (defective) 2 pcs. Believing that the warrant was invalid and the search unreasonable, the petitioners filed a "Motion to Quash" 16 before the trial court. Subsequently, they also filed a "Supplemental Pleading to the Motion to Quash" and a "Motion to Suppress Evidence." 17 On March 23, 1995, the RTC issued the first contested Order which denied petitioners' motions. 18 On August 3, 1995, the trial court rendered its second contested Order 19 denying petitioners' Motion for Reconsideration. 20 Hence, this recourse to this Court on pure questions of law. Issues In their Memorandum, petitioners submit the following grounds in support of their cause: 21

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I Petitioners respectfully submit that Judge Asuncion has committed grave abuse of discretion or has exceeded his jurisdiction in refusing to quash Search Warrant No. 799(95). Probable cause [has] not . . . been sufficiently established and partaking as it does of the nature of a general warrant. II Petitioners respectfully submit that Judge Asuncion has committed grave abuse of discretion or has exceeded his jurisdiction in refusing to quash Search Warrant No. 799(95) on the ground that it was unlawfully served or implemented. III Petitioners respectfully submit that State Prosecutor Dacera is acting with grave abuse of discretion his jurisdiction in continuing with the proceedings in IS No. 95167 on the basis of illegally seized evidence. In the main, petitioners question the validity of the search warrant. As a preliminary matter, we shall also discuss respondents' argument that the Petition should be dismissed for raising factual questions. This Court's Ruling The petition is meritorious. Preliminary Issue: Alleged Factual Questions In their Opposition, respondents argue that the Petition should be dismissed for raising questions of fact, which are not proper in a petition for certiorari under Rule 65. They maintain that the Petition merely assails the "factual basis for the issuance of the warrant and regularity of its implementation. 22 This argument is not convicting. It is settled that "there is a question of fact when the doubt arises as to the truth or the falsity of alleged facts." 23 In the present case, petitioner do not question the truth of the facts as found by the judge; rather, they are assailing the way in which those findings were arrived at, a procedure which they contend was violative of the which those Constitution and the Rules of Court. We agree that the Petition raises only question of law, which may be resolved in the present case. Main Issue: Validity of the Search Warrant The fundamental right against unreasonable and searches and seizures and the basic conditions for the issuance of a search warrant are laid down in Section 2, Article III of the 1987 Constitution, which reads: The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. (Emphasis supplied) Consistent with the foregoing constitutional provision, Section 3 and 4, Rule 126 of the Rules of Court, 24 detail the requisites for the issuance of a valid search warrant as follows:

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Sec. 3. Requisite for issuing search warrant. A search warrant shall not issue but upon probable cause in connection with one specific offense 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 things to be seized. Sec. 4. Examination of complainant; record. The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and any witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted. More simply stated, the requisites of a valid search warrant are: (1) probable cause is present; (2) such presence is determined personally by the judge; (3) the complainant and the witnesses he or she may produce are personally examined by the judge, in writing and under oath or affirmation; (4) the applicant and the witnesses testify on facts personally known to them; and (5) the warrant specifically describes the place to be searched and the things to be seized. 25 In the present case, the search warrant is invalid because (1) the trail court failed to examine personally the complainant and the other deponents; (2) SPO3 Cicero Bacolod, who appeared during the hearing for the issuance or the search warrant, had no personal knowledge that petitioners were not licensed to possess the subject firearms; and (3) the place to be searched was not described with particularity. No Personal Examination of the Witnesses In his Order dated March 23, 1995, the trial judge insisted that the search warrant was valid, stating that "before issuing the subject warrant, the court propounded searching questions to the applicant and the witnesses in order to determined whether there was probable cause . . .." 26 (Emphasis supplied.) This was supported by the Opposition to the Motion to Quash, which argued that "it is erroneous for PICOP to allege that the Honorable Court did not propound searching questions upon applicant P/Chief Inspector Napoleon Pascua and the witnesses he produced." 27 The records, however, proclaim otherwise. As earlier stated, Chief Inspector Pascua's application for a search warrant was supported by (1) the joint Deposition of SPO3 Cicero S. Bacolod and SPO2 Cecilio T. Moriro, (2) a summary of information and (3) supplementary statements of Mario Enad and Felipe Moreno. Except for Pascua and Bacolod however, none of the aforementioned witnesses and policemen appeared before the trial court. Moreover, the applicant's participation in the hearing for the issuance of the search warrant consisted only of introducing Witness Bacolod: 28 COURT: Where is the witness for this application for search warrant? P/Chief Insp. NAPOLEON PASCUA: SPO3 CICERO S. BACOLOD, Your Honor. COURT: Swear the witness. STENOGRAPHER: (To the witness) Please raise your right hand, sir. Do you swear to tell the truth, the whole truth and nothing but the truth before this Court? WITNESS:

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Yes Ma'am. STENOGRAPHER: Please state your name, age, civil status, occupation, address and other personal circumstances. WITNESS: SPO3 Cicero S. Bacolod, 42 years old, married, policeman, c/o Camp Crame, Quezon City, SOU, TMC. xxx xxx xxx Chief Inspector Pascua was asked nothing else, and he said nothing more. In fact, he failed even to affirm his application. Contrary to his statement, the trial judge failed to propound questions, let alone probing questions, to the applicant and to his witnesses other than Bacolod (whose testimony, as will later be shown, is also improper). Obviously, His Honor relied mainly on their affidavits. This Court has frowned on this practice in this language: Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take depositions in writing of the complainant and the witnesses he may procedure and attach them to the record. Such written deposition is necessary in order that the Judge may be able to properly determine the existence or non-existence of the probable cause, to hold liable for perjury the person giving it if it will be found later that his declarations are false. xxx xxx xxx
It is axiomatic that the examination must be probing and exhaustive, not merely routinary or pro-forma, if the claimed probable cause is to be established. The examining magistrate must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application. 29

Bacolod's Testimony Pertained Not to Facts Personally Known to Him Bacolod appeared during the hearing and was extensively examined by the judge. But his testimony showed that he did not have personal knowledge that the petitioners, in violation of PD 1866, were not licensed to possess firearms, ammunitions or explosives. In his Deposition, he stated: Q How do you know that said the properties were subject of the offense?
A Sir, as a result of our intensified surveillance and case build up for several days, we gathered informations from reliable sources that subject properties [which] are in their possession and control [are] the herein described properties subject of the offense. (Summary of Information dtd Oct. '94. SS's of Mario Enad and Felipe Moreno both dtd 30 Nov '94 are hereto attached). 30

When questioned by the judge, Bacolod stated merely that he believed that the PICOP security guards had no license to possess the subject firearms. This, however, does not meet the requirement that a witness must testify on his personal knowledge, not belief. He declared: Q This is an application for Search Warrant against Paper Industries Corporation located at PICOP Compound Barangay Tabon, Bislig, Surigao del Sur. How come that you have knowledge that there are illegal firearms in that place?

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A At Camp Crame, Quezon City, I was dispatched by our Commander to investigate the alleged assassination plot of Congressman Amante. Q In the course of your investigation, what happened? A We found out that some of the suspects in the alleged assassination plot are employees of PICOP. Q Know[ing] that the suspects are employees of PICOP, what did you do? A We conducted the surveillance in that area inside the compound of PICOP in Tabon. Q What did you find . . .? A I found . . . several high-powered firearms. Q How were you able to investigate the compound of PICOP? A I exerted effort to enter the said compound. Q By what means? A By pretending to have some official business with the company. Q So, in that aspect, you were able to investigate the compound of PICOP? A Yes, sir. Q What did you f[i]nd . . .? A I found . . . several high-powered firearms being kept in the compound of PICOP. Q Where are those located? A Sir, there are firearms kept inside the ammo dam. Q Inside the compound? A Located inside the compound. Q Then what? A Others, sir, were kept in the security headquarters or office. Q You mean to say that this Paper Industries Corporation has its own security guards? A Yes, they call it Blue Guards. Q You mean to say that their own security guards guarded the PICOP? A Yes, sir. Q So, it is possible that the firearms used by the security guards are illegally obtained?

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A I believe they have no license to possess high-powered firearms. As far as the verification at FEU, Camp Crame, [is concerned,] they have no license. (Emphasis supplied.) Q Have you investigated the Blue Guards Security Agency? A I conducted the inquiry. Q What did you find out? A They are using firearms owned by PICOP. Q Using firearms owned by PICOP? A Yes, sir. Q You mean to say that this Blue Guard Security Agency has no firearms of their own? A No high-powered firearms. Q By the way, Mr. Witness, what kind of firearms have you seen inside the compound of PICOP? A There are M-16 armalite rifles. Q What else?
A AK-47, armalites, M-203 Grenade Launcher, M-14 US rifles, .38 caliber revolvers, .45 caliber pistols, several handgrenades and ammos. 31 (Emphasis supplied)

Moreover, Bacolod failed to affirm that none of the firearms seen inside the PICOP compound was licensed. Bacolod merely declared that the security agency and its guard were not licensed. He also said that some of the firearms were owned by PICOP. Yet, he made no statement before the trail court PICOP, aside from the security agency, had no license to possess those firearms. Worse, the applicant and his witnesses inexplicably failed to attach to the application a copy aforementioned "no license" certification from the Firearms and Explosives Office (FEO) of the PNP or to present it during the hearing. Such certification could have been easily obtained, considering that the FEO was located in Camp Crame where the unit of Bacolod was also based. In People v. Judge Estrada, 32 the Court held: The facts and circumstances that would show probable cause must be the best evidence that could be obtained under the circumstances. The introduction of such evidence is necessary in cases where the issue is the existence of the negative ingredient of the offense charged for instance, the absence of a license required by law, as in the present case and such evidence is within the knowledge and control of the applicant who could easily produce the same. But if the best evidence could not be secured at the time of the application, the applicant must show a justifiable reason therefor during the examination by the judge. Particularity of the Place to Be Searched In view of the manifest objective of the against unreasonable search, the Constitution to be searched only to those described in the warrant. 33 Thus, this Court has held that "this constitutional right [i]s the embodiment of a spiritual concept: the belief that to value the privacy of home and person and to afford it constitutional protection against the long reach of government is no less than to value human dignity, and that his privacy must not be disturbed except in case of overriding social need, and then only under stringent procedural safeguards." 34 Additionally, the requisite of particularity is related to the probable cause requirement in that, at least under some circumstances, the lack of a more specific description will make it

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apparent that there has not been a sufficient showing to the magistrate that the described items are to be found in particular place. 35 In the present case, the assailed search warrant failed to described the place with particularly. It simply authorizes a search of "the aforementioned premises," but it did not specify such premises. The warrant identifies only one place, and that is the "Paper Industries Corporation of the Philippines, located at PICOP Compound, Barangay Tabon, Bislig[,] Surigao del Sur." The PICOP compound, however, is made up of "200 offices/building, 15 plants, 84 staff houses, 1 airstrip, 3 piers/wharves, 23 warehouses, 6 POL depots/quick service outlets and some 800 miscellaneous structures, all of which are spread out over some one hundred fifty-five hectares." 36 Obviously, the warrant gives the police officers unbridled and thus illegal authority to search all the structures found inside the PICOP compound. 37 In their Opposition, the police state that they complied with the constitutional requirement, because they submitted sketches of the premises to be searched when they applied for the warrant. They add that not one of the PICOP Compound housing units was searched, because they were not among those identified during the hearing. 38 These arguments are not convincing. The sketches allegedly submitted by the police were not made integral parts of the search warrant issued by Judge Asucion. Moreover, the fact that the raiding police team knew which of the buildings or structures in the PICOP Compound housed firearms and ammunitions did not justify the lack of particulars of the place to be searched. 39 Otherwise, confusion would arise regarding the subject of the warrant the place indicated in the warrant or the place identified by the police. Such conflict invites uncalled for mischief or abuse of discretion on the part of law enforces. Thus, in People v. Court of Appeals, 40 this Court ruled that the police had no authority to search the apartment behind the store, which was the place indicated in the warrant, even if they intended it to be the subject of their application. Indeed, the place to be searched cannot be changed, enlarged or amplified by the police, viz.: . . . In the instant case, there is no ambiguity at all in the warrant. The ambiguity lies outside the instrument, arising from the absence of a meeting of the minds as to the place to be searched between the applicants for the warrant and the Judge issuing the same; and what was done was to substitute for the place that the Judge had written down in the warrant, the premises that the executing officers had in their mind. This should not have been done. It [was] neither fairnor licit to allow police officers to search a place different from that stated in the warrant on the claim that the place actually searched although not that specified in the warrant [was] exactly what they had in view when they applied for the warrant and had demarcated in the supporting evidence. What is material in determining the validity of a search is the place stated in the warrant itself, not what the applicants had in their thoughts, or had represented in the proofs they submitted to the court issuing the warrant. Indeed, following the officers' theory, in the context of the facts of this case, all four (4) apartment units at the rear of Abigail's Variety Store would have been fair game for a search. The place to be searched, as set out in the warrant, cannot be amplified or modified by the officers' own personal knowledge of the premises, or the evidence they adduced in support of their application for the warrant. Such a change is proscribed by the Constitution which requires inter alia the search warrant to particularly describe the place to be searched as well as the persons or things to be seized. It would concede to police officers the power of choosing the place to be searched, even if it not be that delineated in the warrant. It would open wide the door to abuse of the search process, and grant to officers executing a search warrant that discretion which the Constitution has precisely removed from them. The particularization of the description of the place to be searched may properly be done only by the Judge, and only in the warrant itself; it cannot be left to the discretion of the police officers conducting the search. (Emphasis supplied.) Seized Firearms and Explosives Inadmissible in Evidence

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As a result of the seizure of the firearms, effected pursuant to Search Warrant No. 799 (95) issued by the respondent judge, the PNP filed with the Department of Justice a complaint docketed as IS No. 95-167 against herein petitioners for illegal possession of firearms. State Prosecutor Dacera, to whom the Complaint was assigned for preliminary investigation, issued a subpoena requiring petitioners to file their counter-affidavits. Instead of complying with the subpoena, petitioners asked for the suspension of the preliminary investigation, pending the resolution of their motion to quash the search warrant. They argued, as they do now, that the illegal obtained firearms could not be the basis of the criminal Complaint. Their motion was denied. A subsequent Motion for Reconsideration met the same fate. In the present Petition for Certiorari and Prohibition, petitioners assert that "State Prosecutor Dacera cannot have any tenable basis for continuing with the proceedings in IS No. 95-167." 41 Because the search warrant was procured in violation of the Constitution and the Rules of Court, all the firearms, explosives and other materials seized were "inadmissible for any purpose in any proceeding." 42 As the Court noted in an earlier case, the exclusion of unlawfully seized evidence was "the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures." 43 Verily, they are the "fruits of the poisonous tree." Without this exclusionary rule, the constitutional right "would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means evidence means of coercing evidence . . .." 44 In the present case, the complaint for illegal possession of firearms is based on the firearms and other materials seized pursuant to Search Warrant No. 799 (95). Since these illegally obtained pieces of evidence are inadmissible, the Complainant and the proceedings before State Prosecutor Dacera have no more leg to stand on. This Court sympathizes with the police effort to stamp out criminality and to maintain peace and order in the country; however, it reminds the law enforcement authorities that they must do so only upon strict observance of the constitutional and statutory rights of our people. Indeed, "there is a right way to do the right thing at the right time for the right reason." 45 WHEREFORE, the instant petition for certiorari and prohibition is hereby GRANTED and Search Warrant No. 799 (95) accordingly declared NULL and VOID. The temporary restraining order issued by this Court on October 23, 1995 is hereby MADE PERMANENT. No pronouncement as to costs. SO ORDERED.

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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 126859 September 4, 2001

YOUSEF AL-GHOUL, ISAM MOHAMMAD ABDULHADI, WAIL RASHID AL-KHATIB, NABEEL NASSER AL-RIYAMI, ASHRAF HASSAM AL-YAZORI, AND MOHAMMAD ABUSHENDI, petitioners, vs. COURT OF APPEALS AND THE PEOPLE OF THE PHILIPPINES, respondents. QUISUMBING, J.: Petitioners assail the decision1 dated September 30, 1996, of the Court of Appeals, which affirmed the orders of the Regional Trial Court of Kalookan City, Branch 123, thereby dismissing petitioners' special civil action for certiorari.2 The facts leading to the present petition under Rule 65 are as follows: On March 31, 1995, Judge Geronimo S. Mangay, presiding judge of the Regional Trial Court, National Capital Judicial Region, Branch 125, Kalookan City, issued search warrants 54-953 and 55954 for the search and seizure of certain items in Apartment No. 2 at 154 Obiniana Compound, Deparo Road, Kalookan City. On April 1, 1995, the police searched Apartment No. 8, in the same compound and found one (1) .45 caliber pistol. Found in Apartment No. 2 were: 2 1 1 1 1 2 1 2 22 1 2 2 1 One M-16 rifles with 2 magazines and 20 live M-16 ammunitions Bar of demolition charge Caliber Pistol with no. 634 and other nos. were placed with magazine of Caliber .45 and 3 live 45 ammunitions 22 Caliber handgun with 5 live ammunitions in its cylinder Box containing 40 pieces of .25 caliber ammunitions pieces of fragmentation grenade roll of detonating cord color yellow big bags of ammonium nitrate suspected to be explosives substance detonating cords with blasting caps timer alarm clock bags of suspected gun powder small plastic bag of suspected explosive substance small box of plastic bag of suspected dynamites weighing scale

and pound of high explosives TNT

Two (2) batteries 9 volts with blasting caps and detonating cord.5 The firearms, ammunitions, explosives and other incendiary devices seized at the apartments were acknowledged in the receipt signed by SPO2 Melanio de la Cruz. Petitioners were charged before the Regional Trial Court of Kalookan City, Branch 123, in informations docketed as Criminal Cases Nos. C-48666-67, accusing them with illegal possession of firearms, ammunitions and explosives, pursuant to Presidential Decree No. 1866.6 Thereafter, petitioners were arrested and detained.

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Petitioners filed a motion for bail on May 24, 1995, the resolution of which was held in abeyance by the RTC pending the presentation of evidence from the prosecution to determine whether or not the evidence presented is strong.7 On February 7, 1996, at the hearing for bail, the RTC "admitted all exhibits being offered for whatever purpose that they maybe worth" after the prosecution had finished adducing its evidence despite the objection by the petitioners on the admissibility of said evidence. On February 19, 1996, the RTC denied petitioners' motion for bail earlier filed, giving as reasons the following: To begin with, the accused are being charged of two criminal offenses and both offenses under Presidential Decree 1866, Sections 1 and 3 thereof prescribe the penalty of Reclusion Temporal in its maximum period to Reclusion Perpetua. Under Rule 114 of the Rules on Criminal Procedure as amended by Supreme Court Administrative Circular No. 12-94, particularly Section 7 thereof, no person charged with a capital offense or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong shall be admitted to bail regardless of the stage of the criminal prosecution.8 As petitioners' action before respondent appellate court also proved futile, petitioners filed the instant petition on the ground that it had acted with grave abuse of discretion tantamount to lack or in excess of jurisdiction. They present for our consideration the following issues: I. WHETHER OR NOT THE EVIDENCE OFFERED BY THE PROSECUTION ARE ADMISSIBLE; II. WHETHER OR NOT ACCUSED HAVE THE RIGHT TO BAIL.9 The issue on bail has been resolved in our resolution dated November 24, 1998, where this Court ruled: Consequent to the enactment of RA 8294, the penalty prescribed in Section 1 and 3 of P.D. 1866 for illegal possession of firearms, ammunitions and explosives under which petitioners were charged, has now been reduced to prision mayor in its minimum period and prision mayor in its maximum period to reclusion temporal, respectively. Evidently, petitioners are now entitled to bail as a matter of right prior to their conviction by the trial court pursuant to Section 4 of SC Administrative Circular No. 12-94 10 xxx WHEREFORE, the petitioners' motion is hereby GRANTED. The Temporary Restraining Order issued by this Court in the Resolution of November 20, 1996 is hereby PARTIALLY LIFTED in so far as petitioners' pending motion for bail before the RTC of Kalookan City, Branch 123 is concerned. The trial court is hereby ordered to proceed with the hearing of the motion for bail and resolve the same with dispatch.11 The issue that remains is whether the respondent court erred and gravely abused its discretion when it ruled that the search and seizure orders in question are valid and the objects seized admissible in evidence. Petitioners contend that the search and seizure orders violated Sections 2 and 3 of the Bill of Rights12 as well as Section 3 of Rule 126 of the Rules of Court on Criminal Procedure13 because the place searched and articles seized were not described with particularity. They argue that the twowitness requirement under Section 10 of Rule 12614 was ignored when only one witness signed the receipt for the properties seized during the search, and said witness was not presented at the trial. Petitioners also aver that the presumption of regularity of the implementation of the search warrant was rebutted by the defense during cross-examination of prosecution witnesses. According to petitioners, respondent court failed to appreciate the fact that the items seized were not turned over to the police evidence custodian as required under Section 18 of the Department of Justice Circular No. 61 dated September 21, 1993. Finally, they fault the lower court's finding that petitioners were in possession of the items allegedly confiscated from them.15

55
For the State, the Office of the Solicitor General avers that the search of Apartment 2 was legal, and the items seized therein are admissible in evidence. However, the OSG agrees with petitioners that the search warrants issued by the RTC, Branch 125, Kalookan City on March 31, 1995, namely search warrant 54-9516 and search warrant 55-95,17 specified the place to be searched, namely Apartment No. 2, 154 Obiniana Compound, Deparo Road, Kalookan City. There was no mention of Apartment No. 8. Thus, we find that the search conducted at Apartment No. 8 clearly violated Sections 2 and 3 (2) of the Bill of Rights, in relation to Section 3 of Rule 126 of the Rules of Court. As held in PICOP v. Asuncion,18 the place to be searched cannot be changed, enlarged nor amplified by the police. Policemen may not be restrained from pursuing their task with vigor, but in doing so, care must be taken that constitutional and legal safeguards are not disregarded. Exclusion of unlawfully seized evidence is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures. Hence, we are constrained to declare that the search made at Apartment No. 8 is illegal and the .45 caliber pistol taken thereat is inadmissible in evidence against petitioners. Now, in contrast, the search conducted at Apartment No. 2 could not be similarly faulted. The search warrants in question specifically mentioned Apartment No. 2. The search was done in the presence of its occupants, herein petitioners,19 in accordance with Section 7 of Rule 126, Revised Rules of Court.20 Petitioners allege lack of particularity in the description of objects to be seized pursuant to the warrants. Hence, they also question the seizure of the following articles from Apartment No. 2, namely: One One (1) One (1) One (1) One (1) Two (2) Two (2) M16 rifles, Colt AR-15 with 2 magazines and 20 rds ammo live bar demolition charge .45 caliber pistol numbers were defaced with magazine and with three (3) live .45 cal ammos .22 caliber handgun with live ammos in its cylinder box containing (40) forty pieces of .22 cal. live ammos (magnum) pieces fragmentation grenade magazines of M16 rifles with live ammos.21

To appreciate them fully, we quote the search warrants in question: Search Warrant 54-95 It appearing to the satisfaction of the undersigned, after examining under oath P/Sr Insp Joel D. Pagdilao, Chief, DPIU, OADDI NPDC, Applicant and his witness SPO1 Cesar R. Rivera of District Police Intelligence Unit, Northern Police District Command with postal address c/o NPIU, NPDC, PNP, Langaray St., Kaunlaran Village, Kalookan City that a.k.a. AL, a.k.a. GHUL a.k.a. NADI, a.k.a. NABIL and several John Does ofApartment Nr. 2, Nr. 154 Obiniana Compound, Deparo Road, Kalookan City have in their possession and control the following: 1. One (1) 45 Caliber Pistol You are hereby commanded to make an immediate search anytime of the DAY and NIGHT of the premises above-mentioned and forthwith, seize and take possession of the foregoing property, to wit: 1. One (1) .45 Caliber Pistol and bring to this Court to be dealt with as the law may direct.22 Search Warrant 55-95

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It appearing to the satisfaction of the undersigned after examining under oath P/Sr. Insp. Joel D. Pagdilao, Chief, DPIU, OADDI NPDC, Applicant and his witness SPO1 Cesar R. Rivera of District Police Intelligence Unit, Northern Police District Command with postal address c/o NPIU, NPDC, PNP, Langaray St., Kaunlaran Village, Kalookan City that a.k.a. AL, a.k.a. GHUL a.k.a. NADI, a.k.a. NABIL and several John Does ofApartment Nr. 2, Nr. 154 Obiniana Compound, Deparo Road, Kalookan City have in their possession and control the following: 1. One (1) 5.56 M16 Rifle with corresponding ammunitions 2. One (1) 9MM Pistol with corresponding ammunitions 3. Three (3) boxes of explosives 4. More or less ten (10) sticks of dymanites (sic) 5. More or less thirty (30) pieces of blasting caps pieces of detonating cords You are hereby commanded to make an immediate search anytime of the DAY or NIGHT of the premises above-mentioned and forthwith seize and take possession of the foregoing properties, to wit: 1. One (1) 5.56 M16 Rifle with corresponding ammunitions 2. One (1) 9MM Pistol with corresponding ammunitions 3. Three (3) boxes of explosives 4. More or less ten (10) sticks of dymanites (sic) 5. More or less thirty (30) pieces of blasting caps pieces of detonating cords and bring to this Court to be dealt with as the law may direct.23 That the articles seized during the search of Apartment No. 2 are of the same kind and nature as those items enumerated in the search warrant above-quoted appears to us beyond cavil. The items seized from Apartment No. 2 were described with specificity in the warrants in question. The nature of the items ordered to be seized did not require, in our view, a technical description. Moreover, the law does not require that the things to be seized must be described in precise and minute details as to leave no room for doubt on the part of the searching authorities, otherwise, it would be virtually impossible for the applicants to obtain a search warrant as they would not know exactly what kind of things they are looking for.24 Once described, however, the articles subject of the search and seizure need not be so invariant as to require absolute concordance, in our view, between those seized and those described in the warrant. Substantial similarity of those articles described as a class or species would suffice. In People v. Rubio, 57 Phil. 384, 389 (1932), this Court said, "While it is true that the property to be seized under a warrant must be particularly described therein and no other property can be taken thereunder, yet the description is required to be specific only in so far as the circumstances will ordinarily allow." Where by the nature of the goods to be seized, their description must be rather general, it is not required that a technical description be given, as this would mean that no warrant could issue. As a corollary, however, we could not logically conclude that where the description of those goods to be seized have been expressed technically, all others of a similar nature but not bearing the exact technical descriptions could not be lawfully subject to seizure. Otherwise, the reasonable purpose of the warrant issued would be defeated by mere technicalities. The case of Bache and Co. (Phil.), Inc. v. Ruiz, 37 SCRA 823, 835 (1971), pointed out that one of the tests to determine the particularity in the description of objects to be seized under a search warrant is when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued. A careful examination of Search Warrant Nos. 54-9525 and 559526 shows that they were worded in such a manner that the enumerated items to be seized could bear a direct relation to the offense of violation of Section 127 and 328 of Presidential Decree No. 1866, as amended, penalizing illegal possession of firearms, ammunitions and explosives. What the warrants authorized was the seizure of articles proscribed by that decree, and no other.

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Lastly, on this score, we note that the Court of Appeals ruled that petitioners waived their right to raise any attack on the validity of the search warrants at issue by their failure to file a motion to quash.29 But, in conducting the search at Apartment No. 8, not just Apartment No. 2 as ordered specifically in the search warrants, the police committed a gross violation we cannot condone. Thus, we conclude that the gun seized in Apartment No. 8 cannot be used in evidence, but those articles including guns, ammunitions, and explosives seized in Apartment No. 2 are admissible in evidence. Coming now to the two-witness requirement under Section 10, Rule 126 of the Revised Rules of Court, petitioners claim the rule was violated because only one witness signed the receipt for the properties seized. For clarity, let us reproduce the pertinent section: SEC. 10. Receipt for the property seized.The officer seizing property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property. Clearly, the two-witness rule applies only in the absence of the lawful occupants of the premises searched. In the case at bar, petitioners were present when the search and seizure operation was conducted by the police at Apartment No. 2. More importantly, petitioner Nabeel Al-Riyami y Nasser admitted being an actual occupant/resident of Apartment No. 2.30 Hence, we find here no violation of Section 10, Rule 126 of the Revised Rules of Court. Petitioners contend that they could not be charged with violation of P.D. 1866 because the seized items were not taken actually from their possession. This contention, however, cannot prosper in the light of the settled rule that actual possession of firearms and ammunitions is not an indispensable element for prosecution under P.D. No. 1866. In People v. Dela Rosa, 284 SCRA 158, 168-169 (1998), we clarified that the kind of possession punishable under P.D. 1866 is one where the accused possessed a firearm either physically or constructively with animus possidendi or intent to possess said firearm. Whether or not the evidence would show all the elements of P.D. 1866 in this case is a different matter altogether. We shall not preempt issues properly still within the cognizance of courts below. Likewise, whether or not the articles seized were planted by the police, as claimed by the petitioners, is a matter that must be brought before the trial court. In the same vein, petitioners' claim that the properties seized were not turned over to the proper police custodian is a question of fact best ventilated during trial. WHEREFORE, the petition is PARTIALLY GRANTED. The search conducted at Apartment No. 8 is hereby declared illegal and the item (.45 caliber pistol) seized therein inadmissible in evidence. However, the search at Apartment No. 2 pursuant to Search Warrant 55-95 is hereby declared valid and legal, and the articles seized from Apartment No. 2 are found admissible in evidence. Let this case be remanded to the Regional Trial Court of Kalookan City, Branch 123, for trial on the merits of Criminal Cases Nos. C-48666-67 with dispatch. No pronouncement as to costs. SO ORDERED.

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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 142295 May 31, 2001

VICENTE DEL ROSARIO y NICOLAS, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. PARDO, J.: Petitioner Vicente del Rosario y Nicolas appeals via certiorari from a decision of the Court of Appeals1 affirming with modification the decision of the Regional Trial Court, Bulacan, Branch 20, Malolos, and finding him guilty beyond reasonable doubt of violation of 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 prision correccional, as minimum, to six (6) years, eight (8) months and one (1) day of prision mayor, as maximum, and to pay a fine of P30,000.00.
1w phi1.nt

On June 17, 1996, Assistant Provincial Prosecutor Eufracio S. Marquez of Bulacan filed with the Regional Trial Court, Bulacan, Malolos an Information charging petitioner Vicente 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, Province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously have in his possession 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 not guilty.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 del Rosario was in possession of certain firearms without the necessary licenses. Acting upon the report, P/Sr. Insp. Jerito Adique of the PNP Criminal Investigation Group at Camp Olivas, Pampanga inquired from the PNP Firearms and Explosive Division "whether or not the report was true. On May 10, 1996, P/Sr. Insp. Edwin C. Roque of the PNP Firearms and Explosives Division issued a certification (Exhibit L) stating that per records in his office, the appellant is not a licensed/registered firearm holder of any kind and caliber. Armed with the said certification, P/Sr. Insp. Adique applied for a search warrant to enable his team to search the house of appellant.
1wphi 1.nt

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"On June 13, 1996, a search warrant (Exhibit A) was issued by Judge Gil Femandez, Sr. of the Regional Trial Court of Quezon City, Branch 217, authorizing the search of the residence of appellant at Barangay Tigbe, Norzagaray, Bulacan.4 On June 15, 1996, at about 7:00 o'clock in the morning, a team led by P/Sr. Insp. Adique went to Norzagaray to serve the warrant. Before proceeding to the residence of the appellant, the police officers requested Barangay Chairman Rogelio de Silva and Barangay Councilman Aurelio Panteleon to accompany them in the implementation of the warrant. Upon arrival at the house of appellant, the police officers introduced themselves to the wife of appellant. When the appellant came out, P/Sr. Insp. Adique informed him that they had a search warrant and that they were authorized to search his house. After appellant gave his permission, the police 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 (Exhibits B and H) found at the master's bedroom; (b) five magazines of 5.56 M-16 rifle and two radios (Exhibits C to C-4) found in the room of appellant's daughter; and (c) a caliber .22 revolver with Serial No. 48673 (Exhibit F) containing 8 pieces of live ammunition (Exhibit M) 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 subject firearms. "SPO2 Marion Montezon, one of the searching officers, prepared three separate inventories of 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. Thereafter SPO2 Montezon prepared a certification of orderly search (Exhibit I) which was signed by the 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 pistol recovered in his bedroom and that the other items seized during the search including the caliber .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 just barged into his house without asking permission. Furthermore, he claimed that the barangay 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, the dispositive portion of which reads: "WHEREFORE, premises considered, the Court finds the accused VICENTE DEL ROSARIO y NICOLAS guilty beyond reasonable doubt of violation of P. D. No. 1866 as charged 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 sentences the 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). On July 20, 1998, petitioner appealed to the Court of Appeals, assailing the decision for being contrary to facts and the law.6 On July 9, 1999, the Court of Appeals promulgated its decision affirming with modification the decision of the trial court as set out in the opening paragraph of this decision.7 On August 10, 1999, petitioner filed with the Court of Appeals a motion for reconsideration 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 named therein had not been issued a firearm license referred to a certain Vicente "Vic" del Rosario of 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 for lack of merit.9 Hence, this appeal.10 Petitioner submits that the search conducted at his residence was illegal the search warrant was issued in violation of the Constitution11 and consequently, the evidence seized was inadmissible. He also submits that he had a license for the .45 caliber firearm and ammunition seized in his bedroom.

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The other firearm, a .22 caliber revolver seized in a drawer at the kitchen of his house, a magazine for 5.56 mm. cal. Armalite rifle, and two 2-way radios found in his daughter's 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 ammunition seized in his bedroom; and Second: whether the .22 caliber revolver seized in a drawer at the kitchen of his house, a magazine for 5.56 mm. cal. Armalite rifle and two 2-way radios found in his daughter's 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 trial courts.12 However, this case comes within the exceptions.13 The "findings of fact by the Court of Appeals will not be disturbed by the Court unless these findings are not supported by evidence."14 In this case, the findings of the lower courts even directly contradict the evidence. Hence, we review the evidence. The trial court held that the copy of the license presented was blurred, and that in any event, the court could rely on the certification dated May 10, 1996, of P/Sr. Inspector Edwin C. Roque, Chief, Records Branch, Firearms and Explosives Division, Philippine National Police stating that Vicente "Vic" del Rosario of Barangay Bigte, Norzagaray, Bulacan is not a licensed/registered firearm holder of any kind and caliber.15 As against this, petitioner submitted that he was not the person referred to in the said certification because he is Vicente del Rosario y Nicolas from Barangay Tigbe, Norzagaray, Bulacan. The Court takes judicial notice of the existence of both 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 territorial jurisdiction, believing the prosecution's submission that there was only barangay Tigbe, and that barangay Bigte in the certification was a typographical error.17 Petitioner presented to the head of the raiding team, Police Senior Inspector Jerito A. Adique, Chief, Operations Branch, PNP Criminal Investigation Command, a valid firearm license. The court is duty bound to examine the evidence assiduously to determine the guilt or innocence 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, such certification referred to another individual and thus, cannot prevail over a valid firearm license duly issued to petitioner. In this case, petitioner presented the printed computerized 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 the signature of Reynaldo V. Velasco, Sr. Supt. (GSC) PNP, Chief, FEO.19 On the dorsal side of the printed computerized license, there is stamped the words "Validity of computerized license is extended until renewed license is printed" dated 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 the extension 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 Inspector Jerito A. Adique of the Criminal Investigation Division Group, PNP.23 As a senior police officer, Senior Inspector Adique could easily determine the genuineness and authenticity of the computerized printed license presented. He must know the computerized license printed form. The stamp is clearly visible. He could decipher the words and the signature of the authorized signing official of the Firearms and Explosives Division, PNP. He belonged to the same national police organization. Nevertheless, Senior Insp. Adique rejected the license presented because, according to 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 .45 caliber Colt pistol with serial No. 70G23792, during that period was not illegal. The firearm was kept at home, not carried outside residence. On June 15, 1996, at the time of the seizure of the firearm in question, possession of firearm with an expired license was not considered unlawful,provided that the license had not been cancelled or revoked. Republic Act No. 8294, providing that possession of a firearm with an expired license was unlawful took effect only on July 7, 1997.24 It could not be given retroactive effect.25

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According to firearm licensing regulations, the renewal of a firearm license was automatically applied for upon payment of the license fees for the renewal period. The expired license was not cancelled or revoked. It served as temporary authority to possess the 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 computerized license. He was not obliged to surrender the weapon. Printed at the dorsal side of the computerized license is a notice reading: "IMPORTANT 1. This firearm license is valid for two (2) years. Exhibit this license whenever demanded by proper authority. 2. Surrender your firearm/s to the nearest PNP Unit upon revocation or termination of this license. Under any of the following instances, your license shall be revoked for which reason your firearm/s is/are subject to confiscation 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 made within your birth month or month preceding your birth month. Late renewal shall be penalized with 50% surcharge for the first month (from the first day to the last day of this month) followed by an additional 25% surcharge for all of 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/or carrying 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 Pl,000.00. f. Dismissal for cause from, the service. g. Failure to sign license, or sign ID picture or affix right thumb mark. 3. Unauthorized loan of firearm/s to another person is punishable by permanent disqualification and forfeiture of the firearm in favor of the government. 4. If termination is due to death, your next of kin should surrender your firearm/s to the nearest PNP Unit. For those within Metro, Manila, surrender should be made with FEO, Camp Crame. 5. When firearms become permanently unserviceable, they should be deposited with the nearest PNP Unit and ownership should be relinquished in writing so that firearms may be disposed of in accordance with law. 6. Application for the purchase of ammunition should be made in case of a resident of Metro Manila direct to the Chief, FEO and for residents of a Province to secure recommendation letter to the nearest PNP Provincial Command who will thereafter endorse same to CHIEF, FEO for issuance of the permit. License must be presented before an authority to purchase ammo could be obtained."26 Indeed, as heretofore stated, petitioner duly paid the license fees for the automatic renewal of the firearm license for the next two years upon expiration of the license in January, 1995, as evidenced by official receipt No. 7615186, dated January 17, 1995.27 The license would be renewed, as it was, because petitioner still possessed the required qualifications. Meantime, the validity of the license was extended until the renewed computerized license was printed. In fact, a renewed license was issued on January 17, 1997, for the succeeding two-year period.28 Aside from the clearly valid and subsisting license issued to petitioner, on January 25, 1995, the Chief, Philippine National Police issued to him a permit to carry firearm outside residence valid until

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January 25, 1996, for the firearm in question.29 The Chief, Philippine National Police would not issue a permit to carry firearm outside residence unless petitioner had a valid and subsisting firearm license. Although the permit to carry firearm outside residence was valid for only one year, and expired on January 25, 1996, such permit is proof that the regular firearm license was renewed and subsisting within the two-year term up to January 1997." A Permit to Carry Firearm Outside Residence presupposes that the party to whom it is issued is duly licensed to possess the firearm in question."30 Unquestionably, on January 17, 1997, the Chief, Firearms and Explosives Division, PNP renewed petitioner's license for the .45 cal. Colt pistol in question.31 Clearly then; petitioner had a valid firearm license during the interregnum between January 17, 1995, to the issuance of his renewed license on January 17, 1997. Finally, there is no rhyme or reason why the Court of Appeals and the trial court did not accept with alacrity the certification dated June 25, 1996, of P/Sr. Inspector Edwin C. Roque,32 Chief, Records Branch, Firearms and Explosives Division, PNP that Vicente N. del Rosario of Barangay Tigbe, Norzagaray, Bulacan is a licensed/registered holder of Pistol, Colt caliber .45 with serial number 70G23792, covered by computerized license issued dated June 15, 1995, with an expiry date January 1997.33 Reinforcing the aforementioned certification, petitioner submitted another certification dated August 27, 1999, stating that Vicente N. del Rosario of Barangay Tigbe, Norzagaray, Bulacan, was issued firearm license No. RL-C1614021915, for caliber .45 Pistol with Serial Number 70G23792, for the years covering the period from July 13, 1993 to January 1995, and the extension appearing at the back thereof for the years 1995 to 1997.34 Had the lower courts given full probative value to these official issuances, petitioner would have been correctly acquitted, thus sparing this Court of valuable time and effort. "In crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz.: (a) the existence of the subject firearm and (b) the fact that the accused who owned or possessed it does not have the license or permit to possess the same.35 The essence of the crime of illegal possession is the possession, whether actual or constructive, of the subject firearm, without which there can be no conviction for illegal possession. After possession is established by the prosecution, it would only be a matter of course to determine whether the accused has a license to possess the firearm."36 "Possession of any firearm becomes unlawful only if the necessary permit or license therefor is not first obtained. The absence of license and legal authority constitutes an essential ingredient of the offense of illegal possession of firearm and every ingredient or essential element of an offense must be shown by the prosecution by proof beyond reasonable doubt. Stated otherwise, the negative fact of lack or absence of license constitutes an essential ingredient of the offense which the prosecution has the duty not only to allege but also, to prove beyond reasonable doubt."37 "To convict an accused for illegal possession of firearms and explosives under P. D. 1866, as amended, two (2) essential elements must be indubitably established, viz.: (a) the existence of the subject firearm or explosive which may be proved by the presentation of the subject firearm or explosive or by the testimony of witnesses who saw accused in possession of the same, and (b) the negative fact that the accused had no license or permit to own or possess the firearm or explosive which fact may be established by the testimony or certification of a representative of the PNP Firearms and Explosives Unit that the accused has no license or permit to possess the subject firearm or explosive." x x x We stress that the essence of the crime penalized under P. D. 1866 is primarily the accused's lack of license or permit to carry or possess the firearm, ammunition or explosive as possession by itself is not prohibited by law."38 Illegal possession of firearm is a crime punished by special law, a malum prohibitum, and no malice or intent to commit a crime need be proved.39 To support a conviction, however, there must be possession coupled with intent to possess (animus possidendi) the firearm.40 In upholding the prosecution and giving credence to the testimony of police officer Jerito A. Adigui, the trial court relied on the presumption of regularity in the performance of official duties by the police officers.41 This is a flagrant error because his testimony is directly contradictory to the official records of the Firearms and Explosives Division, PNP, which must prevail. Morever, the presumption of regularity can not prevail over the Constitutional presumption of innocence.42 Right from the start, P/Sr. Insp. Jerito A. Adigue was aware that petitioner possessed a valid license for the caliber .45 Colt pistol in question. Despite this fact, P/Sr. Insp. Adigue proceeded to detain petitioner and charged him with illegal possession of firearms. We quote pertinent portions of the testimony of petitioner: Q: What else did Adigue tell you after showing to him the license of your cal. .45 pistol and the alleged cal. .22 found in a drawer in your kitchen?

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A: He told me that since my firearm is licensed, he will return my firearm, give him ten thousand pesos (P10,000.00) and for me to tell who among the people in our barangay have unlicensed firearm, sir. Q: A: Q: How did he say about the ten thousand pesos? He said "palit kalabaw na lang tayo" sir. 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 give him, sir, because he was just trying to squeeze something from me. Q: A: Q: A: Q: How about the unlicensed firearms in your barangay which he asked, from you? I said I do not know any unlicensed firearm in our barangay, sir. About the .22 cal. pistol, what was your answer to him? I told him that it was not mine, they planted it, sir. What did he say next?

A: He said that it is your word against mine, the Court will believe me because I am a 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 with officials 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 ruling has 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 raiding team found in a drawer at the kitchen of petitioner's house, suffice it to say that the firearm was not mentioned in the search warrant applied for and issued for the search of petitioner's house. "Section 2, Article III of the Constitution lays down the general rule that a 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 said constitutional provision."46 "Supporting jurisprudence thus outlined the following requisites for a search warrant's validity, the absence of even one will cause" its downright nullification: (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 the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; and (4) the warrant issued must particularly describe the place to be searched and persons or things to be seized."47 Seizure is limited to those items particularly described in a valid search warrant. Searching officers are without discretion regarding what articles they shall seize.48 Evidence seized on the occasion of such an unreasonable search and seizure is tainted 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 any proceeding.49 In this case, the firearm was not found inadvertently and in plain view. It was found as a result of a meticulous search in the kitchen of petitioner's house. This firearm, to emphasize, was not mentioned in the search warrant. Hence, the seizure was illegal.50 The seizure without the requisite search warrant was in plain violation of the law and the Constitution.51 True that as an exception, the police may seize without warrant illegally possessed firearm or any contraband for that matter, inadvertently found in plain view. 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 an incriminating object."52 Specifically, seizure of evidence in "plain view" is justified when there is:

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(a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who had the right to be 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 to him. The prosecution was not able to prove that the firearm was in the effective possession or control of the petitioner without a license. In illegal possession of firearms, the possessor must know of the existence of the subject firearm in his possession or control. "In People v. de Gracia,54 we clarified the meaning of possession for the purpose of convicting a person under P. D. No.1866, thus: x x x 'In the present case, a distinction should be made between criminal intent and intent to possess. While mere possession without criminal intent is sufficient to convict a person for illegal possession of a firearm, it must still be shown that there was animus possidendi or an intent to possess on the part of the accused.' x x x x Hence, the kind of possession punishable under P. D. No. 1866 is one where the accused possessed a firearm either physically or constructively with animus possidendi or intention to possess the same."55 That is the meaning of animus possidendi. 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 petitioner's daughter. The seizure was invalid and the seized items were inadmissible in evidence. As explained in People v. Doria,56 the "plain view" doctrine applies when the following requisites concur: (1) the law if enforcement officer is in a position where he has a clear view of a particular area or alias prior justification for an intrusion; (2) said officer inadvertently comes across (or sees in plain view) a piece of incriminating evidence; and (3) it is, immediately apparent to such officer that the item he sees may be evidence of a crime or a contraband or is otherwise subject to seizure." With particular reference to the two 2-way radios that the raiding policemen also seized in the bedroom of petitioner's daughter, there was absolutely no reason for the seizure. The if radios were not contraband per se.The National Telecommunications Commission may license two-way radios at its discretion.57 The burden is on the prosecution to show that the two-way radios were not licensed. The National Telecommunication Commission is the sole agency authorized to seize unlicensed twoway radios. 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 citizen's right. Worse, the petitioner was not charged with illegal possession of the two-way radios.
1wphi 1.nt

Consequently, the confiscation of the two 2-way radios was clearly illegal. The possession of such radios is not even included in the charge of illegal possession of firearms (violation of P. D. No. 1866, as amended) alleged in the Information. WHEREFORE, the Court hereby REVERSES the decision of the Court of Appeals in CA-G. R. CR No. 22255, promulgated on July 09, 1999. The Court ACQUITS petitioner Vicente del Rosario y Nicolas of the charge of violation of P. D. No. 1866, as amended by R. A. No. 8294 (illegal possession of firearms and ammunition), in Criminal Case No. 800-M-96, Regional Trial Court, Bulacan, Branch 20, Malolos. Costs de oficio. The Chief; Firearms and Explosives Division, PNP shall return to petitioner his caliber .45 Colt pistol, with Serial Number No. 70023792, the five (5) extra magazines and twenty seven (27) rounds of live ammunition, and the two 2-way radios confiscated from him. The Chief, Philippine National Police, or his duly authorized representative shall show to this Court proof of compliance herewith within fifteen (15) days from notice. The .22 caliber revolver with Serial No. 48673, and eight (8) live ammunition and the magazine for 5.56 mm. caliber Armalite rifle are confiscated in favor of the government.
1w phi 1.nt

SO ORDERED.

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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 129035 August 22, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANNABELLE FRANCISCO y DAVID, @ ANNABELLE TABLAN, accused-appellant. DECISION YNARES-SANTIAGO, J.: Federico Verona and his live-in girlfriend, accused-appellant Annabelle Francisco, were placed under surveillance after the police confirmed, through a test-buy operation, that they were engaged in selling shabu or methamphetamine hydrochloride. SPO2 Teneros and SPO4 Alberto San Juan of OADDI-WPDC, U.N. Avenue, Manila applied for a search warrant before Branch 23 of the Regional Trial Court of Manila to authorize them to search the premises at 122 M. Hizon St., Caloocan City. Attached to the application was the After-Surveillance Report1 of SPO2 Teneros. It stated that Dante Baradilla, of 1726 Lallana St., corner Sta. Catalina St., Tondo, Manila, who claimed to be one of Federico Veronas runners in the illegal drugs operations, allegedly sought the assistance of SPO2 Teneros for the arrest of Verona.2 The search warrant3 was subsequently issued by Judge Bayhon authorizing the search of shabu and paraphernalia at No. 122 M. Hizon Street, Caloocan City. Accused-appellant Annabelle Francisco, who was then nine months pregnant, was resting inside the second floor masters bedroom of their two- storey apartment at No. 120 M. Hizon Street, Caloocan City, when she heard a loud bang downstairs as if somebody forcibly opened the front door. Eight policemen suddenly entered her bedroom and conducted a search for about an hour. Accusedappellant inquired about their identities but they refused to answer. It was only at the police station where she found out that the team of searchers was led by SPO2 Teneros. The police team, along with Barangay Chairwoman Miguelita Limpo and Kagawad Bernie de Jesus, both of Barangay 64, Zone-6, District 2, Caloocan City, enforced the warrant and seized the following:4 1. One (1) Salad Set marked Pyrex wrapped in a plastic containing white crysthalline (sic) substance or methamphetamine hydrochloride or shabu with markings by the undersigned inside the house of subjects residence weighing (230) two hundred thirty (sic) grams of methampetamine hydrochloride or shabu by Aida Abear-Pascual of NBI Forensic Chemist; 2. Several plastics in different sizes; 3. Two (2) roll of strip aluminum foil; 4. Five (5) tooter water pipe and improvised and two burner improvised; 5. Two (2) pantakal or measuring weight in shabu; 6. Two (2) cellular phone motorola with markings; 7. One (1) monitoring device with cord and with markings; 8. Several pcs. with strip aluminum foil; 9. Two (2) masking tip (sic) with markings; 10. Twentee (sic) two thousand nine hundred ninetee (sic) pesos. The police team also allegedly seized the amount of P180,000.00, a Fiat car, jewelry, set of keys, an ATM card, bank books and car documents.

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Consequently, accused-appellant was charged with violation of Section 16, Article III, Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, in an information5 which reads: That about 10:30 oclock in the morning of 30 March 1996 at No. 122 SCL M. Hizon St., Kalookan City and within the jurisdiction of this Honorable court, the above-named accused grouping herself together with some other persons whose liabilities are still being determined in a preliminary investigation, conspiring, confederating and mutually helping one another, did then and there, wilfully, unlawfully and feloniously have in their possession, custody and/or control, methamphetamine hydrochloride popularly known as "shabu", a regulated drug, with a total weight of 230 grams, without the corresponding license and/or prescription to possess, have custody and/or control over the aforesaid regulated drug. CONTRARY TO LAW. Accused-appellant filed a motion to quash the search warrant6 asserting that she and her live-in partner Federico Verona had been leasing an apartment unit at No. 120 M. Hizon Street, District 2, Caloocan City, Metro Manila, since 1995 up to the present as certified by the owner of the apartment unit. On arraignment, accused-appellant pleaded not guilty,7 after which, trial on the merits ensued. The trial court denied the motion to quash and upheld the validity of the search warrant. It rendered a decision finding accused-appellant guilty as charged, the dispositive portion of which reads: WHEREFORE premises considered, and the prosecution having established beyond an iota of doubt the guilt of the Accused for Violation of Sec. 16, Art. III, RA 6425 as amended by RA 7659 and considering that the total net weight of subject drugs consists of 230 grams, this Court in the absence of any modifying circumstance hereby imposes upon the Accused the penalty of reclusion perpetua and a fine of P1,000,000.00 pesos, and to pay the costs. The period of Accuseds preventive imprisonment shall be credited in full in the service of her sentence pursuant to Art. 29 of the Revised Penal Code. Subject drugs and paraphernalia are hereby declared confiscated and forfeited in favor of the government to be dealt with in accordance with law. The return to the Accused of the two (2) cellular phones, (Motorola Micro Fac) (sic) Nos. S-2968A and S-3123A, which were turned over by the Acting Branch Clerk of Court of Manila RTC, Br. 3 to her counterpart in this sala (Exh. "30") as well as the deposit of cash money in the amount of P22,990.00 with the Manila RTC Clerk of Court JESUS MANINGAS as evidenced by acknowledgment receipt dated 21 May 1996, are hereby ordered. SO ORDERED.8 On appeal, accused-appellant raised the following assignment of errors:9 I. THE LOWER COURT ERRED IN CONVICTING THE ACCUSED OF THE CRIME OF ILLEGAL POSSESSION OF SHABU; II. THE LOWER COURT ERRED IN ADMITTING THE EVIDENCE AGAINST THE ACCUSED; III. THE LOWER COURT ERRED IN NOT FINDING THAT THE SEARCH CONDUCTED WAS ILLEGAL AND VIOLATIVE OF ACCUSEDS CONSTITUTIONAL RIGHTS; IV. THE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED AFTER FINDING THAT THE SEARCH WAS INDEED CONDUCTED AT A PLACE DIFFERENT FROM THAT DESCRIBED IN THE SEARCH WARRANT. The appeal is impressed with merit.

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Plainly, the basic issue submitted for resolution is the reasonableness of the search conducted by the police officers at accused-appellants residence. The trial court, in upholding the validity of the search, stated that:10 Re 3rd argument - the fact that the search warrant in question was served at apartment No. 120 and not at the specific address stated therein which is 122 M. Hizon St., Caloocan City will not by itself render as illegal the search and seizure of subject stuff seized by the operatives pursuant thereto. While it is true that the rationale behind the constitutional and procedural requirements that the search warrant must particularly describe the place to be searched is to the end that no unreasonable search warrant and seizure may not be made (sic) and abuses may not be committed, however, this requirement is not without exception. It is the prevailing rule in our jurisdiction that even a description of the place to be searched is sufficient if the officer with the warrant can with reasonable effort ascertain and identify the place intended (People vs. Veloso, G.R. No. L-23051, Oct. 20, 1925). Significantly in the case at bar the implementing officer SPO2 Teneros was principally the concerned official who conducted an active surveillance on the Accused and subject house (Surveillance Report, Exh. "9") and pursued this case by filing the corresponding application for the issuance of a search warrant. Perforce, SPO2 TENEROS was thereby placed in a position enabling him to have prior and personal knowledge of particular house intended in the warrant which definitely refer to no other than the very place where the same was accordingly served. Accused-appellant, on the other hand, maintains that the search was grossly infirm as the subject search warrant authorized the police authorities to search only No. 122 M. Hizon St., Caloocan City. However, the actual search was conducted at No. 120 M. Hizon St., Caloocan City. The basic guarantee to the protection of the privacy and sanctity of a person, his home and his possessions against unreasonable intrusions of the State is articulated in Section 2, Article III of the Constitution, which reads: THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS AGAINST UNREASONABLE SEARCHES AND SEIZURES OF WHATEVER NATURE AND FOR ANY PURPOSE SHALL BE INVIOLABLE, AND NO SEARCH WARRANT OR WARRANT OF ARREST SHALL ISSUE EXCEPT UPON PROBABLE CAUSE TO BE DETERMINED PERSONALLY BY THE JUDGE AFTER EXAMINATION UNDER OATH OR AFFIRMATION OF THE COMPLAINANT AND THE WITNESSES HE MAY PRODUCE, AND PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED AND THE PERSONS OR THINGS TO BE SEIZED. For the validity of a search warrant, the Constitution requires that there be a particular description of "the place to be searched and the persons or things to be seized." The rule is that a description of a place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended and distinguish it from other places in the community. Any designation or description known to the locality that leads the officer unerringly to it satisfies the constitutional requirement.11 Specifically, the requisites for the issuance of a valid search warrant are: (1) probable cause is present; (2) such presence is determined personally by the judge; (3) the complainant and the witnesses he or she may produce are personally examined by the judge, in writing and under oath or affirmation; (4) the applicant and the witnesses testify on the facts personally known to them; and (5) the warrant specifically describes the place to be searched and the things to be seized.12 The absence of any of these requisites will cause the downright nullification of the search warrants. The proceedings upon search warrants must be absolutely legal, for there is not a description of process known to the law, the execution of which is more distressing to the citizen. Perhaps there is none which excites such intense feeling in consequence of its humiliating and degrading effect. The warrants will always be construed strictly without, however, going the full length of requiring technical accuracy. No presumptions of regularity are to be invoked in aid of the process when an officer undertakes to justify it.13 The application for search warrant filed by SPO2 Teneros requested for authority to search specifically the premises of No. 122 M. Hizon St., Caloocan City. The application was accompanied by a sketch14 of the area which bears two parallel lines indicated as 10th Avenue drawn vertically on the left-hand side of the paper. Intersecting these lines are two other parallel lines drawn horizontally

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and indicated as M. Hizon. Above and on the left-hand side of the upper parallel line of the lines identified as M. Hizon, is a square marked as "Basketball Court." A similar drawing placed near the right-hand side of the upper parallel line is another square marked as "PNR Compound". Beneath the lower parallel line of the lines marked as "M. Hizon" and right at the center is also a square enclosing an "X" sign marked as "122", presumably No. 122 M. Hizon St., Caloocan City. During the hearing for the application of the search warrant, police asset Dante Baradilla described the house to be searched as: Bale dalawang palapag po, semi concrete, color cream na ang mga bintana ay may rehas na bakal at sliding at sa harap ay may terrace at may sasakyan sila na ginagamit sa pagdeliver ng shabu.15 The trial court then conducted an ocular inspection of the area. It turned out that No. 122 M. Hizon St., Caloocan City was a concrete two-storey residential building with steel-barred windows and a terrace. It was owned by a certain Mr. Joseph Ching. The house, however, bore no house number. The house marked No. 122 M. Hizon St., Caloocan City was actually two houses away from accused-appellants house at No. 120 M. Hizon St. On the other hand, No. 120 Hizon St. was a compound consisting of three apartments enclosed by only one gate marked on the outside as No. 120. The different units within No. 120 Hizon St. were not numbered separately. Accused-appellant rented the third unit from the entrance which was supposedly the subject of the search. The entire compound had an area of approximately ninety (90) square meters. The second unit was located at the back of the first unit and the third unit was at the rear end of the compound. Hence, access to the third unit from M. Hizon Street was only through the first two units and the common gate indicated as No. 120. The occupants of the premises stated that they commonly use No. 120 to designate their residence. In People v. Veloso, this Court declared that "even a description of the place to be searched is sufficient if the officer with the warrant can with reasonable effort, ascertain and identify the place intended."16 The description of the building in the application for a search warrant in Veloso as well as in the search warrant itself refer to "the building No. 124 Calle Arzobispo, City of Manila, Philippine Islands" which was considered "sufficient designation of the premises to be searched."17 The prevailing circumstances in the case at bar are definitely different from those in Veloso. At first glance, the description of the place to be searched in the warrant seems to be sufficient. However, from the application for a search warrant as well as the search warrant itself, the police officer serving the warrant cannot, with reasonable effort, ascertain and identify the place intended precisely because it was wrongly described as No. 122, although it may have been located on the same street as No. 120. Even the description of the house by police asset Baradilla referred to that house located at No. 122 M. Hizon St., not at No. 120 M. Hizon St. The particularity of the place described is essential in the issuance of search warrants to avoid the exercise by the enforcing officers of discretion. Hence, the trial court erred in refusing to nullify the actions of the police officers who were perhaps swayed by their alleged knowledge of the place. The controlling subject of search warrants is the place indicated in the warrant itself and not the place identified by the police.18 It may well be that the police officer identified No. 120 M. Hizon St. as the subject of the actual search. However, as indicated in the witness affidavit19 in support of the application for a search warrant,20 No. 122 M. Hizon St. was unmistakably indicated. Inexplicably, a few days after the search warrant was issued by the court and served at No. 120 M. Hizon St., SPO2 Teneros informed Judge Bayhon in the return of search warrant21 that the warrant "was properly served at 122 M. Hizon St., Caloocan City, Metro Manila as indicated in the search warrant itself." SPO2 Teneros attempted to explain the error by saying that he thought the house to be searched bore the address 122 M. Hizon St., Caloocan City instead of No. 120 M. Hizon St.22 But as this Court ruled in Paper Industries Corporation of the Philippines v. Asuncion,23 thus: The police had no authority to search the apartment behind the store, which was the place indicated in the warrant, even if they really intended it to be the subject of their application. Indeed, the place to be searched cannot be changed, enlarged or amplified by the police, viz.:

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"x x x. In the instant case, there is no ambiguity at all in the warrant. The ambiguity lies outside the instrument, arising from the absence of a meeting of the minds as to the place to be searched between the applicants for the warrant and the Judge issuing the same; and what was done was to substitute for the place that the Judge had written down in the warrant, the premises that the executing officers had in their mind. This should not have been done. It [was] neither fair nor licit to allow police officers to search a place different from that stated in the warrant on the claim that the place actually searchedalthough not that specified in the warrant[was] exactly what they had in view when they applied for the warrant and had demarcated in their supporting evidence. What is material in determining the validity of a search is the place stated in the warrant itself, not what the applicants had in their thoughts, or had represented in the proofs they submitted to the court issuing the warrant. Indeed, following the officers theory, in the context of the facts of the case, all four (4) apartment units at the rear of Abigails Variety Store would have been fair game for a search. The place to be searched, as set out in the warrant, cannot be amplified or modified by the officers own personal knowledge of the premises, or the evidence they adduced in support of their application for the warrant. Such a change is proscribed by the Constitution which requires inter alia the search warrant to particularly describe the place to be searched as well as the persons or things to be seized. It would concede to police officers the power of choosing the place to be searched, even if it not be delineated in the warrant. It would open wide the door to abuse of the search process, and grant to officers executing a search warrant that discretion which the Constitution has precisely removed from them. The particularization of the description of the place to be searched may properly be done only by the Judge, and only in the warrant itself; it cannot be left to the discretion of the police officers conducting the search." All told, the exclusionary rule necessarily comes into play, to wit: Art. III, Sec. 3 (2), 1987 Constitution. -- ANY EVIDENCE OBTAINED IN VIOLATION OF THIS OR THE PRECEDING SECTION SHALL BE INADMISSIBLE FOR ANY PURPOSE IN ANY PROCEEDING. Consequently, all the items seized during the illegal search are prohibited from being used in evidence. Absent these items presented by the prosecution, the conviction of accused-appellant for the crime charged loses its basis. As the Court noted in an earlier case, the exclusion of unlawfully seized evidence was the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures. Verily, they are the "fruits of the poisonous tree." Without this exclusionary rule, the constitutional right would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evidence.24 On another note, we find disturbing the variety of the items seized by the searching team in this case. In the return of search warrant, they admitted the seizure of cellular phones, money and television/monitoring device items that are not within the palest ambit of shabu paraphernalia, which were the only items authorized to be seized. What is more disturbing is the suggestion that some items seized were not reported in the return of search warrant, like the Fiat car, bankbooks, and money. In an attempt to justify the presence of the car in the police station, SPO2 Teneros had to concoct a most incredible story that the accused-appellant, whose pregnancy was already in the third trimester, drove her car to the police station after the intrusion at her house even if the police officers had with them several cars. A search warrant is not a sweeping authority empowering a raiding party to undertake a fishing expedition to seize and confiscate any and all kinds of evidence or articles relating to a crime.25 It need not be stressed anew that this Court is resolutely committed to the doctrine that this constitutional provision is of a mandatory character and therefore must be strictly complied with. To quote from the landmark American decision of Boyd v. United States: "It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis."26 Those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of order. Order is too high a price to pay for the loss of liberty. As Justice Holmes declared: "I think it is less evil that some criminals escape than that the government should play an ignoble part." It is simply not allowed in free society to violate a law to enforce another, especially if the law violated is the Constitution itself.27

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WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court, Branch 127, Caloocan City, convicting accused-appellant of violation of Section 16, Article III, Republic Act No. 6425 and sentencing her to suffer the penalty of reclusion perpetua and to pay a fine of P1,000,000.00 as well as the costs, is REVERSED and SET ASIDE. For lack of evidence to establish guilt beyond reasonable doubt, accused-appellant Annabelle Francisco y David @ Annabelle Tablan is ACQUITTED and is ordered immediately RELEASED from confinement, unless she is lawfully held in custody for another cause. SO ORDERED.

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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 163858 June 28, 2005

UNITED LABORATORIES, INC., petitioner, vs. ERNESTO ISIP and/or SHALIMAR PHILIPPINES and/or OCCUPANTS, Shalimar Building, No. 1571, Aragon Street, Sta. Cruz, Manila, respondents. DECISION CALLEJO, SR., J.: Rolando H. Besarra, Special Investigator III of the National Bureau of Investigation (NBI), filed an application, in the Regional Trial Court (RTC) of Manila, for the issuance of a search warrant concerning the first and second floors of the Shalimar Building, located at No. 1571, Aragon Street (formerly No. 1524, Lacson Avenue, Sta. Cruz, Manila) occupied and/or used by Shalimar Philippines, owned/operated by Ernesto Isip; and for the seizure of the following for violation of Section 4(a), in relation to Section 8, of Republic Act (R.A.) No. 8203: a. Finished or unfinished products of UNITED LABORATORIES (UNILAB), particularly REVICON multivitamins; b. Sundry items such as tags, labels, boxes, packages, wrappers, receptacles, advertisements and other paraphernalia used in the offering for sale, sale and/or distribution of counterfeit REVICON multivitamins; c. Sales invoices, delivery receipts, official receipts, ledgers, journals, purchase orders and all other books of accounts and documents used in recording the manufacture and/or importation, distribution and/or sales of counterfeit REVICON multivitamins.1 The application was docketed as People v. Ernesto Isip, et al., Respondents, Search Warrant Case No. 04-4916 and raffled to Branch 24 of the court. Appended thereto were the following: (1) a sketch2 showing the location of the building to be searched; (2) the affidavit3 of Charlie Rabe of the Armadillo Protection and Security Agency hired by United Laboratories, Inc. (UNILAB), who allegedly saw the manufacture, production and/or distribution of fake drug products such as Revicon by Shalimar Philippines; (3) the letter-request of UNILAB, the duly licensed and exclusive manufacturer and/or distributor of Revicon and Disudrin, for the monitoring of the unauthorized production/manufacture of the said drugs and, if warranted, for their seizure; (4) the lettercomplaint4 of UNILAB issued through its Director of the Security and Safety Group; and (5) the joint affidavit5 of NBI Agents Roberto Divinagracia and Rolando Besarra containing the following allegations: 2. When learned that an Asset was already placed by ARMADILLO PROTECTIVE AND SECURITY AGENCY named CHARLIE RABE, who was renting a room since November 2003, at the said premises located at No. 1571 Aragon St., Sta. Cruz, Manila. MR. RABE averred that the owner of the premises is a certain MR. ERNESTO ISIP and that the said premises which is known as SHALIMAR PHILIPPINES, Shalimar Building, are being used to manufacture counterfeit UNILAB products, particularly REVICON multivitamins, which was already patented by UNILAB since 1985; 3. Upon verification of the report, we found out that the said premises is a six-story structure, with an additional floor as a penthouse, and colored red-brown. It has a tight security arrangement wherein non-residents are not allowed to enter or reconnoiter in the premises; 4. We also learned that its old address is No. 1524 Lacson Avenue, Sta. Cruz, Manila, and has a new address as 1571 Aragon St., Sta. Cruz, Manila; and that the area of counterfeiting operations are the first and second floors of Shalimar Building;

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5. Since we cannot enter the premises, we instructed the Asset to take pictures of the area especially the places wherein the clandestine manufacturing operations were being held. At a peril to his well-being and security, the Asset was able to take photographs herein incorporated into this Search Warrant Application.6 A representative from UNILAB, Michael Tome, testified during the hearing on the application for the search warrant. After conducting the requisite searching questions, the court granted the application and issued Search Warrant No. 04-4916 dated January 27, 2004, directing any police officer of the law to conduct a search of the first and second floors of the Shalimar Building located at No. 1571, Aragon Street, Sta. Cruz, Manila. The court also directed the police to seize the following items: a. Finished or unfinished products of UNITED LABORATORIES (UNILAB), particularly REVICON multivitamins; b. Sundry items such as tags, labels, boxes, packages, wrappers, receptacles, advertisements and other paraphernalia used in the offering for sale, sale and/or distribution of counterfeit REVICON multivitamins; c. Sales invoices, delivery receipts, official receipts, ledgers, journals, purchase orders and all other books of accounts and documents used in recording the manufacture and/or importation, distribution and/or sales of counterfeit REVICON multivitamins.7 The court also ordered the delivery of the seized items before it, together with a true inventory thereof executed under oath. The search warrant was implemented at 4:30 p.m. on January 27, 2004 by NBI agents Besarra and Divinagracia, in coordination with UNILAB employees. No fake Revicon multivitamins were found; instead, there were sealed boxes at the first and second floors of the Shalimar Building which, when opened by the NBI agents in the presence of respondent Isip, contained the following: QUANTITY/UNIT DESCRIPTION 792 Bottles 30 Boxes Disudrin 60 ml. (100 pieces each) Inoflox 200 mg.8

NBI Special Investigator Divinagracia submitted an inventory of the things seized in which he declared that the search of the first and second floors of the Shalimar Building at No. 1571, Aragon Street, Sta. Cruz, Manila, the premises described in the warrant, was done in an orderly and peaceful manner. He also filed a Return of Search Warrant,9 alleging that no other articles/items other than those mentioned in the warrant and inventory sheet were seized. The agent prayed that of the items seized, ten boxes of Disudrin 60 ml., and at least one box of Inoflox be turned over to the custody of the Bureau of Food and Drugs (BFAD) for examination.10 The court issued an order granting the motion, on the condition that the turn over be made before the court, in the presence of a representative from the respondents and the court.11 The respondents filed an "Urgent Motion to Quash the Search Warrant or to Suppress Evidence."12 They contended that the implementing officers of the NBI conducted their search at the first, second, third and fourth floors of the building at No. 1524-A, Lacson Avenue, Sta. Cruz, Manila, where items in "open display" were allegedly found. They pointed out, however, that such premises was different from the address described in the search warrant, the first and second floors of the Shalimar Building located at No. 1571, Aragon Street, Sta. Cruz, Manila. The respondents, likewise, asserted that the NBI officers seized Disudrin and Inoflox products which were not included in the list of properties to be seized in the search warrant. UNILAB, in collaboration with the NBI, opposed the motion, insisting that the search was limited to the first and second floors of the Shalimar building located at the corner of Aragon Street and Lacson Avenue, Sta. Cruz, Manila. They averred that, based on the sketch appended to the search warrant application, Rabes affidavit, as well as the joint affidavit of Besarra and Divinagracia, the building where the search was conducted was located at No. 1571, Aragon Street corner Lacson Avenue, Sta. Cruz, Manila. They pointed out that No. 1524 Lacson Avenue, Sta. Cruz, Manila was the old address, and the new address was No. 1571, Aragon Street, Sta. Cruz, Manila. They maintained that the warrant was not implemented in any other place.13

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In reply, the respondents insisted that the items seized were different from those listed in the search warrant. They also claimed that the seizure took place in the building located at No. 1524-A which was not depicted in the sketch of the premises which the applicant submitted to the trial court.14 In accordance with the ruling of this Court inPeople v. Court of Appeals,15 the respondents served a copy of their pleading on UNILAB.16 On March 11, 2004, the trial court issued an Order17 granting the motion of the respondents, on the ground that the things seized, namely, Disudrin and Inoflox, were not those described in the search warrant. On March 16, 2004, the trial court issued an advisory18 that the seized articles could no longer be admitted in evidence against the respondents in any proceedings, as the search warrant had already been quashed. UNILAB, through the Ureta Law Office, filed a motion, in collaboration with the NBI agents, for the reconsideration of the order, contending that the ground used by the court in quashing the warrant was not that invoked by the respondents, and that the seizure of the items was justified by the plain view doctrine. The respondents objected to the appearance of the counsel of UNILAB, contending that the latter could not appear for the People of the Philippines. The respondents moved that the motion for reconsideration of UNILAB be stricken off the record. Disputing the claims of UNILAB, they insisted that the items seized were contained in boxes at the time of the seizure at No. 1524-A, Lacson Avenue corner Aragon Street, Sta. Cruz, Manila, and were not apparently incriminating on plain view. Moreover, the seized items were not those described and itemized in the search warrant application, as well as the warrant issued by the court itself. The respondents emphasized that the Shalimar Laboratories is authorized to manufacture galenical preparations of the following products: Products: - Povidone Iodine - Chamomile Oil - Salicylic Acid 10 g. - Hydrogen Peroxide 3% Topical Solution - Aceite de Alcamforado - Aceite de Manzanilla19 In a manifestation and opposition, the respondents assailed the appearance of the counsel of UNILAB, and insisted that it was not authorized to appear before the court under the Rules of Court, and to file pleadings. They averred that the BFAD was the authorized government agency to file an application for a search warrant. In its counter-manifestation, UNILAB averred that it had the personality to file the motion for reconsideration because it was the one which sought the filing of the application for a search warrant; besides, it was not proscribed by Rule 126 of the Revised Rules of Criminal Procedure from participating in the proceedings and filing pleadings. The only parties to the case were the NBI and UNILAB and not the State or public prosecutor. UNILAB also argued that the offended party, or the holder of a license to operate, may intervene through counsel under Section 16 of Rule 110, in relation to Section 7(e), of the Rules of Criminal Procedure. UNILAB prayed that an ocular inspection be conducted of the place searched by the NBI officers.20 In their rejoinder, the respondents manifested that an ocular inspection was the option to look forward to.21 However, no such ocular inspection of the said premises was conducted. In the meantime, the BFAD submitted to the court the result of its examination of the Disudrin and Inoflox samples which the NBI officers seized from the Shalimar Building. On its examination of the actual component of Inoflox, the BFAD declared that the substance failed the test.22 The BFAD, likewise, declared that the examined Disudrin syrup failed the test.23 The BFAD had earlier issued the following report: PRODUCT NAME Manufacturer L.N. E.D. FINDINGS

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1.Phenylpropanolamine (Disudrin) 12.5 mg./5mL Syrup

Unilab

21021552 3-06

-Registered, however, label/physical appearance does not conform with the BFAD approved label/ registered specifications. -Registered, however, label/physical appearance does not conform with the BFAD approved label/ registered specifications.24

2.Ofloxacin (Inoflox) 200 mg. tablet.

Unilab

99017407 3-05

On May 28, 2004, the trial court issued an Order25 denying the motion for reconsideration filed by UNILAB. The court declared that: The Search Warrant is crystal clear: The seizing officers were only authorized to take possession of "finished or unfinished products of United Laboratories (UNILAB), particularly REVICON Multivitamins, and documents evidencing the counterfeit nature of said products. The Receipt/Inventory of Property Seized pursuant to the warrant does not, however, include REVICON but other products. And whether or not these seized products are imitations of UNILAB items is beside the point. No evidence was shown nor any was given during the proceedings on the application for search warrant relative to the seized products. On this score alone, the search suffered from a fatal infirmity and, hence, cannot be sustained.26 UNILAB, thus, filed the present petition for review on certiorari under Rule 45 of the Rules of Court, where the following issues are raised: Whether or not the seized 792 bottles of Disudrin 60 ml. and 30 boxes of Inoflox 200 mg. are INADMISSIBLE as evidence against the respondents because they constitute the "fruit of the poisonous tree" or, CONVERSELY, whether or not the seizure of the same counterfeit drugs is justified and lawful under the "plain view" doctrine and, hence, the same are legally admissible as evidence against the respondents in any and all actions?27 The petitioner avers that it was deprived of its right to a day in court when the trial court quashed the search warrant for a ground which was not raised by the respondents herein in their motion to quash the warrant. As such, it argues that the trial court ignored the issue raised by the respondents. The petitioner insists that by so doing, the RTC deprived it of its right to due process. The petitioner asserts that the description in the search warrant of the products to be seized "finished or unfinished products of UNILAB" is sufficient to include counterfeit drugs within the premises of the respondents not covered by any license to operate from the BFAD, and/or not authorized or licensed to manufacture, or repackage drugs produced or manufactured by UNILAB. Citing the ruling of this Court in Padilla v. Court of Appeals,28 the petitioner asserts that the products seized were in plain view of the officers; hence, may be seized by them. The petitioner posits that the respondents themselves admitted that the seized articles were in open display; hence, the said articles were in plain view of the implementing officers. In their comment on the petition, the respondents aver that the petition should have been filed before the Court of Appeals (CA) because factual questions are raised. They also assert that the petitioner has no locus standi to file the petition involving the validity and the implementation of the search warrant. They argue that the petitioner merely assisted the NBI, the BFAD and the Department of Justice; hence, it should have impleaded the said government agencies as parties-petitioners. The petition should have been filed by the Office of the Solicitor General (OSG) in behalf of the NBI and/or the BFAD, because under the 1987 Revised Administrative Code, the OSG is mandated to represent the government and its officers charged in their official capacity in cases before the Supreme Court. The respondents further assert that the trial court may consider issues not raised by the parties if such consideration would aid the court in the just determination of the case. The respondents, likewise, maintain that the raiding team slashed the sealed boxes so fast even before respondent Isip could object. They argue that the seizure took place at No. 1524-A, Lacson Avenue, Sta. Cruz, Manila covered by Transfer Certificate of Title (TCT) No. 220778, and not at No. 1571, Aragon Street, Sta. Cruz, Manila covered by TCT No. 174412 as stated in the search warrant. They assert that the ruling of the Court inPeople v. Court of Appeals29 is applicable in this case. They

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conclude that the petitioner failed to prove the factual basis for the application of the plain view doctrine.30 In reply, the petitioner asserts that it has standing and is, in fact, the real party-in-interest to defend the validity of the search warrant issued by the RTC; after all, it was upon its instance that the application for a search warrant was filed by the NBI, which the RTC granted. It asserts that it is not proscribed under R.A. No. 8203 from filing a criminal complaint against the respondents and requesting the NBI to file an application for a search warrant. The petitioner points out that the Rules of Criminal Procedure does not specifically prohibit a private complainant from defending the validity of a search warrant. Neither is the participation of a state prosecutor provided in Rule 126 of the said Rules. After all, the petitioner insists, the proceedings for the application and issuance of a search warrant is not a criminal action. The petitioner asserts that the place sought to be searched was sufficiently described in the warrant for, after all, there is only one building on the two parcels of land described in two titles where Shalimar Philippines is located, the place searched by the NBI officers.31 It also asserts that the building is located at the corner of Aragon Street and Lacson Avenue, Sta. Cruz, Manila.32 The petitioner avers that the plain view doctrine is applicable in this case because the boxes were found outside the door of the respondents laboratory on the garage floor. The boxes aroused the suspicion of the members of the raiding team precisely because these were marked with the distinctive UNILAB logos. The boxes in which the items were contained were themselves so designated to replicate true and original UNILAB boxes for the same medicine. Thus, on the left hand corner of one side of some of the boxes33 the letters "ABR" under the words "60 ml," appeared to describe the condition/quality of the bottles inside (as it is with genuine UNILAB box of the true medicine of the same brand). The petitioner pointed out that "ABR" is the acronym for "amber bottle round" describing the bottles in which the true and original Disudrin (for children) is contained. The petitioner points out that the same boxes also had their own "license plates" which were instituted as among its internal control/countermeasures. The license plates indicate that the items within are, supposedly, "Disudrin." The NBI officers had reasonable ground to believe that all the boxes have one and the same data appearing on their supposedly distinctive license plates. The petitioner insists that although some of the boxes marked with the distinctive UNILAB logo were, indeed, sealed, the tape or seal was also a copy of the original because these, too, were marked with the distinctive UNILAB logo. The petitioner appended to its pleading pictures of the Shalimar building and the rooms searched showing respondent Isip;34 the boxes seized by the police officers containing Disudrin syrup;35 and the boxes containing Inoflox and its contents.36 The issues for resolution are the following: (1) whether the petitioner is the proper party to file the petition at bench; (2) whether it was proper for the petitioner to file the present petition in this Court under Rule 45 of the Rules of Court; and (3) whether the search conducted by the NBI officers of the first and second floors of the Shalimar building and the seizure of the sealed boxes which, when opened, contained Disudrin syrup and Inoflox, were valid. On the first issue, we agree with the petitioners contention that a search warrant proceeding is, in no sense, a criminal action37 or the commencement of a prosecution.38 The proceeding is not one against any person, but is solely for the discovery and to get possession of personal property. It is a special and peculiar remedy, drastic in nature, and made necessary because of public necessity. It resembles in some respect with what is commonly known as John Doe proceedings.39 While an application for a search warrant is entitled like a criminal action, it does not make it such an action. A search warrant is a legal process which has been likened to a writ of discovery employed by the State to procure relevant evidence of crime.40 It is in the nature of a criminal process, restricted to cases of public prosecutions.41A search warrant is a police weapon, issued under the police power. A search warrant must issue in the name of the State, namely, the People of the Philippines.42 A search warrant has no relation to a civil process. It is not a process for adjudicating civil rights or maintaining mere private rights.43 It concerns the public at large as distinguished from the ordinary civil action involving the rights of private persons.44 It may only be applied for in the furtherance of public prosecution.45 However, a private individual or a private corporation complaining to the NBI or to a government agency charged with the enforcement of special penal laws, such as the BFAD, may appear, participate and file pleadings in the search warrant proceedings to maintain, inter alia, the validity of the search warrant issued by the court and the admissibility of the properties seized in anticipation of

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a criminal case to be filed; such private party may do so in collaboration with the NBI or such government agency. The party may file an opposition to a motion to quash the search warrant issued by the court, or a motion for the reconsideration of the court order granting such motion to quash.46 In this case, UNILAB, in collaboration with the NBI, opposed the respondents motion to quash the search warrant. The respondents served copies of their reply and opposition/comment to UNILAB, through Modesto Alejandro, Jr.47 The court a quo allowed the appearance of UNILAB and accepted the pleadings filed by it and its counsel. The general rule is that the proper party to file a petition in the CA or Supreme Court to assail any adverse order of the RTC in the search warrant proceedings is the People of the Philippines, through the OSG. However, inColumbia Pictures Entertainment, Inc. v. Court of Appeals,48 the Court allowed a private corporation (the complainant in the RTC) to file a petition for certiorari, and considered the petition as one filed by the OSG. The Court in the said case even held that the petitioners therein could argue its case in lieu of the OSG: From the records, it is clear that, as complainants, petitioners were involved in the proceedings which led to the issuance of Search Warrant No. 23. In People v. Nano, the Court declared that while the general rule is that it is only the Solicitor General who is authorized to bring or defend actions on behalf of the People or the Republic of the Philippines once the case is brought before this Court or the Court of Appeals, if there appears to be grave error committed by the judge or a lack of due process, the petition will be deemed filed by the private complainants therein as if it were filed by the Solicitor General. In line with this ruling, the Court gives this petition due course and will allow petitioners to argue their case against the questioned order in lieu of the Solicitor General.49 The general rule is that a party is mandated to follow the hierarchy of courts. However, in exceptional cases, the Court, for compelling reasons or if warranted by the nature of the issues raised, may take cognizance of petitions filed directly before it.50 In this case, the Court has opted to take cognizance of the petition, considering the nature of the issues raised by the parties. The Court does not agree with the petitioners contention that the issue of whether the Disudrin and Inoflox products were lawfully seized was never raised in the pleadings of the respondents in the court a quo. Truly, the respondents failed to raise the issue in their motion to quash the search warrant; in their reply, however, they averred that the seized items were not included in the subject warrant and, therefore, were not lawfully seized by the raiding team. They also averred that the said articles were not illegal per se, like explosives and shabu, as to justify their seizure in the course of unlawful search.51 In their Opposition/Comment filed on March 15, 2004, the respondents even alleged the following: The jurisdiction of this Honorable Court is limited to the determination of whether there is a legal basis to quash the search warrant and/or to suppress the seized articles in evidence. Since the articles allegedly seized during the implementation of the search warrant Disudrin and Inoflux products were not included in the search warrant, they were, therefore, not lawfully seized by the raiding team; they are not illegal per se, as it were, like an arms cache, subversive materials or shabu as to justify their seizure in the course of a lawful search, or being in plain view or some such. No need whatever for some public assay. The NBI manifestation is a glaring admission that it cannot tell without proper examination or assay that the Disudrin and Inoflox samples allegedly seized from respondents place were counterfeit. All the relevant presumptions are in favor of legality.52 The Court, therefore, finds no factual basis for the contention of the petitioner that the respondents never raised in the court a quo the issue of whether the seizure of the Disudrin and Inoflox products was valid. In any event, the petitioner filed a motion for the reconsideration of the March 11, 2004 Order of the court a quoon the following claims: 2.01 The Honorable Court ERRED in ruling on a non-issue or the issue as to the alleged failure to particularly describe in the search warrant the items to be seized but upon which NO challenge was then existing and/or NO controversy is raised;

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2.02 The Honorable Court ERRED in its ruling that "finished or unfinished products of UNILAB" cannot stand the test of a particular description for which it then reasons that the search is, supposedly unreasonable; and, 2.03 The Honorable Court ERRED in finding that the evidence seized is lawfully inadmissible against respondents.53 The court a quo considered the motion of the petitioner and the issue raised by it before finally resolving to deny the same. It cannot thus be gainsaid that the petitioner was denied its right to due process. On the validity of the seizure of the sealed boxes and its contents of Disudrin and Inoflox, the Court, likewise, rejects the contention of the petitioner. A search warrant, to be valid, must particularly describe the place to be searched and the things to be seized. The officers of the law are to seize only those things particularly described in the search warrant. A search warrant is not a sweeping authority empowering a raiding party to undertake a fishing expedition to seize and confiscate any and all kinds of evidence or articles relating to a crime. The search is limited in scope so as not to be general or explanatory. Nothing is left to the discretion of the officer executing the warrant.54 Objects, articles or papers not described in the warrant but on plain view of the executing officer may be seized by him. However, the seizure by the officer of objects/articles/papers not described in the warrant cannot be presumed as plain view. The State must adduce evidence, testimonial or documentary, to prove the confluence of the essential requirements for the doctrine to apply, namely: (a) the executing law enforcement officer has a prior justification for an initial intrusion or otherwise properly in a position from which he can view a particular order; (b) the officer must discover incriminating evidence inadvertently; and (c) it must be immediately apparent to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure.55 The doctrine is not an exception to the warrant. It merely serves to supplement the prior justification whether it be a warrant for another object, hot pursuit, search as an incident to a lawful arrest or some other legitimate reason for being present, unconnected with a search directed against the accused. The doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. It is a recognition of the fact that when executing police officers comes across immediately incriminating evidence not covered by the warrant, they should not be required to close their eyes to it, regardless of whether it is evidence of the crime they are investigating or evidence of some other crime. It would be needless to require the police to obtain another warrant.56 Under the doctrine, there is no invasion of a legitimate expectation of privacy and there is no search within the meaning of the Constitution. The immediate requirement means that the executing officer can, at the time of discovery of the object or the facts therein available to him, determine probable cause of the objects incriminating evidence.57 In other words, to be immediate, probable cause must be the direct result of the officers instantaneous sensory perception of the object.58 The object is apparent if the executing officer had probable cause to connect the object to criminal activity. The incriminating nature of the evidence becomes apparent in the course of the search, without the benefit of any unlawful search or seizure. It must be apparent at the moment of seizure.59 The requirement of inadvertence, on the other hand, means that the officer must not have known in advance of the location of the evidence and intend to seize it.60 Discovery is not anticipated.61 The immediately apparent test does not require an unduly high degree of certainty as to the incriminating character of evidence. It requires merely that the seizure be presumptively reasonable assuming that there is probable cause to associate the property with criminal activity; that a nexus exists between a viewed object and criminal activity.62 Incriminating means the furnishing of evidence as proof of circumstances tending to prove the guilt of a person.63 Indeed, probable cause is a flexible, common sense standard. It merely requires that the facts available to the officer would warrant a man of reasonable caution and belief that certain items may

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be contrabanded or stolen property or useful as evidence of a crime. It does not require proof that such belief be correct or more likely than true. A practical, non-traditional probability that incriminating evidence is involved is all that is required. The evidence thus collected must be seen and verified as understood by those experienced in the field of law enforcement.64 In this case, Disudrin and/or Inoflox were not listed in the search warrant issued by the court a quo as among the properties to be seized by the NBI agents. The warrant specifically authorized the officers only to seize "counterfeit Revicon multivitamins, finished or unfinished, and the documents used in recording, manufacture and/or importation, distribution and/or sale, or the offering for sale, sale and/or distribution of the said vitamins." The implementing officers failed to find any counterfeit Revicon multivitamins, and instead seized sealed boxes which, when opened at the place where they were found, turned out to contain Inoflox and Disudrin. It was thus incumbent on the NBI agents and the petitioner to prove their claim that the items were seized based on the plain view doctrine. It is not enough to prove that the sealed boxes were in the plain view of the NBI agents; evidence should have been adduced to prove the existence of all the essential requirements for the application of the doctrine during the hearing of the respondents motion to quash, or at the very least, during the hearing of the NBI and the petitioners motion for reconsideration on April 16, 2004. The immediately apparent aspect, after all, is central to the plain view exception relied upon by the petitioner and the NBI. There is no showing that the NBI and the petitioner even attempted to adduce such evidence. In fact, the petitioner and the NBI failed to present any of the NBI agents who executed the warrant, or any of the petitioners representative who was present at the time of the enforcement of the warrant to prove that the enforcing officers discovered the sealed boxes inadvertently, and that such boxes and their contents were incriminating and immediately apparent. It must be stressed that only the NBI agent/agents who enforced the warrant had personal knowledge whether the sealed boxes and their contents thereof were incriminating and that they were immediately apparent.65 There is even no showing that the NBI agents knew the contents of the sealed boxes before they were opened. In sum then, the Court finds and so hold that the petitioner and the NBI failed to prove the essential requirements for the application of the plain view doctrine. IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The assailed orders of the Regional Trial Court are AFFIRMED. SO ORDERED.

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SUPREME COURT OF THE UNITED STATES

389 U.S. 347

Katz v. United States


CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 35 Argued: October 17, 1967 --- Decided: December 18, 1967

Petitioner was convicted under an indictment charging him with transmitting wagering information by telephone across state lines in violation of 18 U.S.C. 1084. Evidence of petitioner's end of the conversations, overheard by FBI agents who had attached an electronic listening and recording device to the outside of the telephone booth from which the calls were made, was introduced at the trial. The Court of Appeals affirmed the conviction, finding that there was no Fourth Amendment violation, since there was "no physical entrance into the area occupied by" petitioner. Held: 1. The Government's eavesdropping activities violated the privacy upon which petitioner justifiably relied while using the telephone booth, and thus constituted a "search and seizure" within the meaning of the Fourth Amendment. Pp. 350-353. (a) The Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements. Silverman v. United States, 365 U.S. 505, 511. P. 353. (b) Because the Fourth Amendment protects people, rather than places, its reach cannot turn on the presence or absence of a physical intrusion into any given enclosure. The "trespass" doctrine of Olmstead v. United States, 277 U.S. 438, and Goldman v. United States, 316 U.S. 129, is no longer controlling. Pp. 351, 353. 2. Although the surveillance in this case may have been so narrowly circumscribed that it could constitutionally have been authorized in advance, it was not in fact conducted pursuant to the warrant procedure which is a constitutional precondition of such electronic surveillance. Pp. 354-359. 369 F.2d 130, reversed. [p348]