REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

THIRD JUDICIAL REGION
BRANCH 31
GUIMBA, NUEVA ECIJA

THE PEOPLE OF
THE PHILIPPINES
Plaintiff,
Crim. Case No. 4102-G
– versus – For: Viol. of R.A. 10591

ROBERT FRANCIA y RINDOLE @ “Totong”,

Accused,
x--------------------x

ORDER
This resolves the “Demurrer to Evidence” filed by the accused through his counsel, Atty. Joel M.
de Lara, on March 12, 2019 praying for the dismissal of the criminal information in the above-entitled case
for want of evidence. The instant demurrer to evidence is predicated on the following grounds:

1) the search warrant is fatally defective;

2) the search was not made in the presence of the lawful occupant;
3) failure to deliver the property and inventory thereof to Court;

Herein accused stands charged of Violation of R.A. 10591, the Information 1 of which reads:

INFORMATION

Undersigned Inquest Prosecutor accuses ROBERT FRANCIA y RINDOLE @

“Totong” of the crime of VIOLATION OF R.A. 10591, committed as follows:

“That on or about the 8th day of March, 2016, at Brgy.

Maturanoc, in the Municipality of Guimba, Province of Nueva Ecija,
Philippines, and within the jurisdiction of this Honorable Court, the
above-name accused, did then and there willfully, unlawfully and
feloniously have in his possession and control one (1) unit of caliber
45 Shooters (Blue Thunder) with Serial Number BT9960272, eight
(8) pcs. Of live ammunitions of Caliber 45, one (1) magazine of
Caliber 45, one (1) pc of inside holster (Black), two (2) pcs. Of live
ammunitions of M16 (Caliber 5.56), twenty-six (26) pcs. of live
ammunitions of Caliber 22 regular and fifty (50) pcs. of live
ammunitions of Caliber 45, without having the necessity license and
authority to possess the same.

“CONTRARY TO LAW.”

The crux of the instant demurrer to evidence revolves around Search Warrant No. 90-16 2 (the,
“search warrant”) dated March 3, 2016 and was issued by the Hon. Primo G. Sio, Jr., Executive Judge of
the Regional Trial Court, Cabanatuan City, which allegedly yields several items, including one (1) BTHND
caliber .45 pistol with serial number (“SN”) BT9930272 (the, “subject firearm”).

Accused maintains that he is a licensed/registered firearm holder of one (1) caliber .45 pistol with
SN BT9930272 until March 6, 2016 as per the Memorandum 3 coming from the FEO dated February 22,
2016. The accused further argued that based on records, the one being applied for search warrant at the
house of the accused was for a caliber .45 pistol with SN BT9930272 but the one presented in court
bears SN BT9960272.

Accused wanted to impress this Court that caliber .45 pistol with SN BT9930272 and licensed
under his name is an entirely different and distinct from the one being presented in court. However,
in his Motion to Release Subject Firearm, 4 the accused alleged that “he has a pending request for
Alteration of Serial Number of his License to Own and Possess Firearm with regard to the firearm

1 Records, p. 2.
2 Exh. “A”, Id at p. 6.
3 Exh. “I”, Id. at p. 9.
4 Records, p. 139.
 Resolution of Demurrer to Evidence
Crim. Case No. 4102-G
Page 2 of 4

subject matter of this case, before the Philippine National Police – Fire and Explosive Division, the said
firearm has to be submitted to their Office for purposes of verifying the same”. Considering that there is a
need to present the subject firearm before the PNP-FEO in order to facilitate his request therein, accused,
therefore, constructively admits that caliber .45 pistols with SN BT9930272 and SN BT9960272 are one
and the same. “A man cannot eat his cake and have it too.”

Nonetheless, the elements of the crime of illegal possession of firearms are: (1) the existence of
the subject firearm; and (2) the fact that the accused who owned or possessed it does not have the
license or permit to possess the same.5 The corpus  delicti in the said crime is the accused's lack of
license or permit to possess or carry the firearm, as possession itself is not prohibited by law .6 To
establish the corpus  delicti, the prosecution has the burden of proving that the firearm exists and that the
accused who owned or possessed it does not have the corresponding license or permit to possess or
carry the same.7

In Nala v. Barroso, Jr.8 the Court held that “[p]robable cause as applied to illegal possession of
firearms would therefore be such facts and circumstances which would lead a reasonably discreet and
prudent man to believe that a person is in possession of a firearm and that  he does not have the
license or permit to possess the same.” 

Here, the questioning judge issued the search warrant on the basis of the memorandum coming
from the FEO, Camp Crame.9 However, said Memorandum states that the accused “is a
licensed/registered firearm holder of one (1) BTHND caliber 45 pistol serial number BT9930272 with
approved date on September 8, 2014 and expiry date on March 6, 2016”. SPO1 Derwin de Gracia on
cross-examination likewise admitted that he applied for a search warrant on March 3, 2016 despite his
knowledge that the accused has a valid firearm license for caliber .45 until March 6, 2016. 10

Although there appears to be no probable cause for the issuance of the search warrant with
respect to the caliber .45 on the strength of the Memorandum, which categorically states that the
accused is a firearm license holder on caliber .45 pistol, records on hand; however, show that the search
warrant described the items to be seized11 in this wise:

“1. Caliber .45 pistol;

2. Caliber .38 revolver;
3. 9mm pistol; and
4. Parts of firearms and ammunitions.”

The probable cause for a valid search warrant has been defined as such facts and circumstances
which would lead a reasonably discreet and prudent man to believe that an offense has been committed,
and that objects sought in connection with the offense are in the place sought to be searched. This
probable cause must be shown to be within the personal knowledge of the complainant or the
witnesses he may produce and not based on mere hearsay.12 In determining its existence, the
examining magistrate must make a probing and exhaustive, not merely routine or pro forma examination
of the applicant and the witnesses.13 

Sections 5, Rule 126, of the Rules on Criminal Procedure likewise provides that a 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.

While at first glance, it may appear that there is probable cause for the issuance of the search
warrant with respect to caliber .38, further reading of the transcript of stenographic notes pertaining to

5 Del Rosario v. People, G.R. No. 142295, 31 May 2001, 358 SCRA 373, 389, citing People v. Castillo, 382 Phil. 499 (2000); People
v. Dorimon, 378 Phil. 660 (1999); People v. Cerveto, 374 Phil. 220 (1999); Cadua v. Court of Appeals, 371 Phil. 627 (1999);
People v. Khor, 366 Phil. 762 (1999).
6 Capangpangan v. People of the Philippines, G.R. No. 150251, November 23, 2007.
7 Abenes v. People of the Philippines, G.R. No. 156320, February 14, 2007, 515 SCRA 690, 703-704.
8 G.R. No. 153807, August 7, 2003.
9 TSN dated 3 March 2016 during the application for SW No. 90-16 before the Office of the Executive Judge, RTC, Cabanatuan
City, p. 4, par. 2-3. (Records, p. 40).
10 TSN dated July 20, 2017, p. 8.
11 Exh. “A-2”, Id.
12 Prudente v. Dayrit, G.R. No. 82870, 14 December 1989, 180 SCRA 69, 76, citing Quintero v. National Bureau of Investigation,
G.R. No. L-35149, 23 June 1988, 162 SCRA 467; 20th Century Fox Film Corporation v. Court of Appeals, G.R. Nos. L-76649-51, 19
August 1988, 164 SCRA 655; People v. Sy Juco, 64 Phil. 667 (1937); Alvarez v. CFI, 64 Phil. 33 (1937); United States v. Addison, 28
Phil. 566 (1914).
13 People v. Tee, supra, note 1; Pendon v. Court of Appeals
 Resolution of Demurrer to Evidence
Crim. Case No. 4102-G
Page 3 of 4

the issuance of the same, reveals that it was issued based on information which were not within the
personal knowledge of the applicants but on hearsay evidence given by their “asset/alpha” 14.

COURT:
X x x.

SPO2 De Gracia:
X x x.

Q : Thereafter, what happened?

A : X x x (Nung sumunod, sir, para hindi, sir para hindi, sir, kami
mahalatang nagmamanman, sir, sa kanya, bumalik, sir, kami sa Police
Station at sinabi, sir, namin yung nakita, sir, namin sa aming hepe. And
then, nung following day, sir, nag-follow-up, sir, ulit kami, sir nung
February 20, sir. Kinausap, sir, namin yung asset namin then, nung
sinabi niya sa amin na kakilala niya yung tao so, sinabi, sir namin na
manmanan niya. Then, nung nag-follow-up, sir, yung asset namin that
time, me ipinakita daw, sir, sa kanya na baril na bago daw niyang bili
na caliber 45 at caliber 38, sir. So, nag-report sa amin yung alpha, sir,
namin. Then, on February 20, sir, nagsubmit, sir, kami ng verification
sa, 21, sir, sa ano, February 21, sa office of the FEO, sir, Firearms and
Explosives Office, sir.)

The name of the “asset/alpha” who provided the information that the accused was in possession
of caliber .38 was not disclosed in the deposition of the police officers who applied for the search warrant.
Evidently, the declarations of the police officers in their deposition were insufficient bases for the issuance
of a valid search warrant.

In Alvarez vs. Court of First Instance 15 the Court 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 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 unknown “asset/alpha” does not come up to the level that
he/she can be held liable for perjury because the unknown informant’s reputation cannot be accessed,
nor can he/she be held responsible for a false accusation. Where an informant declines to be identified,
there is a risk the tip has been fabricated, undercutting its reliability. 16 There is no way for the accused to
clear his name against purveyors of fake information if the witness for the issuance of search warrant is
not identified or refuses to dislose his name. He cannot be prosecuted for perjury just like in this instant
case wherein the result of his information is false.

In light of the ruling in Paper Industries Corporation of the Philippines (PICOP) v.

Asuncion,17 which declared as void the search warrant on the ground, inter alia, of failure to prove the
requisite probable cause, this Court likewise rules that Search Warrant No. 90-16 issued against the
accused lacks probable cause, thus NULL and VOID.

All told, the exclusionary rule provided for in Sec. 3(2), Art. III of the Constitution necessarily
comes into play, to wit: “Any evidence obtained in violation of a person’s right against unreasonable
searches and seizures shall be inadmissible for any purpose in any proceeding.”18 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. 19 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.20

Finding the Search Warrant 90-16 as NULL and VOID, it is unnecessary to delve on the other
ancillary issues in the instant demurrer to evidence.

14 TSN dated 3 March 2016 during the application for SW No. 90-16 before the Office of the Executive Judge, RTC, Cabanatuan
City, p. 4, par. 1. (Records, p. 40).
15 G.R. No. 85358.
16 (Florida vs. J.L., 529 U.S. 266, 269-70, 272 (2000).
17 366 Phil. 717, 736-737 (1999), citing People v. Estrada, 357 Phil. 377 (1998).
18 Philippine Constitution, Article III, Section 3(2).
19 307 SCRA 273 (1999) citing People v. Court of Appeals, 291 SCRA 400 [1998].
20 People vs. David, G.R. No. 129035, August 22, 2002.
 Resolution of Demurrer to Evidence
Crim. Case No. 4102-G
Page 4 of 4

WHEREFORE, premises considered, this case is hereby DISMISSED for insufficiency of

evidence against the accused.

Atty. Melvin M. Malang, Clerk of Court, RTC Multiple Sala, Guimba, Nueva Ecija, is hereby
ordered to release the cash bond for the provisional liberty of the accused in the amount of
Php200,000.00 covered by Official Receipt No. 4284089C dated March 10, 2016 in favor of his
bondsman, Rosalia I. Francia upon presentation of identification papers and the receipt evidencing the
same.

SO ORDERED.

April 1, 2019.
Guimba, Nueva Ecija.

BRIGANDO P. SALDIVAR
Judge

BPS /no_ram