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SOLIVEN, petitioner VS.

JUDGE MAKASIAR, respondent 167 SCRA 393 FACTS: This case is a PETITION for certiorari and prohibition to review the decision of the Regional Trial Court of Manila ISSUES: 1. Whether or not the petitioners were denied due process when information for libel were filed against them although the finding of the existence of a prima facie case was still under review by the Secretary of Justice and, subsequently by the President 2. Whether or not the constitutional rights of Beltran (petitioner) were violated when respondent RTC judge issued a warrant for his arrest without personally examining the complainant and the witnesses, if any, to determine probable clause 3. Whether or not the President of the Philippines, under the Constitution, may initiate criminal proceedings against the petitioners through filing of a complaint-affidavit DECISION: Finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the part of the public respondents, the Court Resolved to DISMISS the petitions. The Order to maintain the status quo contained in the Resolution of the Court en banc is LIFTED. RATIO: Background of the first issue MARCH 30, 1988: Secretary of Justice denied petitioners motion for reconsideration APRIL 7, 1988: A second motion for reconsideration filed by petitioner Beltran was denied by the Secretary of Justice MAY 2, 1988: On appeal, the President, through Executive Secretary, affirmed the resolution of the Secretary of Justice MAY 16, 1988: Motion for reconsideration was denied by the Executive Secretary Petitioner Beltran alleges that he has been denied due process of law. -This is negated by the fact that instead of submitting his counter-affidavits, he filed a Motion to Declare Proceedings Closed, in effect, waiving his right to refute the complaint by filing counteraffidavits. Due process of law does not require that the respondent in a criminal case actually file his counter-affidavits before the preliminary investigation is deemed completed. All that is required is that the respondent be given the opportunity to submit counter-affidavits if he is so minded. Second issue This calls for an interpretation of the constitutional provision on the issuance of warrants of arrest: Art. III, Sec.2. 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.

Petitioner Beltran is convinced that the Constitution requires the judge to personally examine the complainant and his witness in his determination of probable cause for the issuance of warrants of arrests. -However, what the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In doing so, the judge is not required to personally examine the complainant and his witness. Following the established doctrine of procedure, the judge shall: (1) Personally evaluate the report and supporting documents submitted by the fiscal regarding the existence of probable cause (and on the basis, thereof, issue a warrant of arrest); or (2) If on the basis thereof he finds no probable cause, he may disregard the fiscals report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the evidence of probable cause. Third issue Petitioner Beltran contends that proceedings ensue by virtue of the Presidents filing of her complaint-affidavit, she may subsequently have to be a witness for the prosecution, bringing her under the trial courts jurisdiction. This would in an indirect way defeat her privilege of immunity from suit, as by testifying on the witness stand, she would be exposing herself to possible contempt of court or perjury. -This privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the Presidents behalf. -The choice of whether to exercise the privilege or to waive is solely the Presidents prerogative. It is a decision that cannot be assumed and imposed by any other person (And there is nothing in our laws that would prevent the President from waiving the privilege). Additional Issue: Beltran contends that he could not be held liable for libel because of the privileged character of the publication. He also says that to the libel case to proceed would produce a chilling effect on press freedom. -Court reiterates that it is not a trier of facts And Court finds no basis at this stage to rule on the chilling effect point. SEPARATE CONCURRING OPINION Guitierrez, Jr., J. Concurs with the majority opinion insofar as it revolves around the three principal issues. With regard to whether or not the libel case would produce a chilling effect on press freedom, Gutierrez believes that this particular issue is the most important and should be resolved now rather than later. Quotable quotes: Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of a clear conscience. United States v. Bustos No longer is there a Minister of the Crown or a person in authority of such exalted position that the citizen must speak of him only with bated breath. People v. Perfecto Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 82585 November 14, 1988

MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and GODOFREDO L. MANZANAS, petitioners, vs. THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila, Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice, LUIS C. VICTOR, THE CITY FISCAL OF MANILA and PRESIDENT CORAZON C. AQUINO, respondents. G.R. No. 82827 November 14, 1988 LUIS D. BELTRAN, petitioner, vs. THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila, THE HON. LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE OF THE PHILIPPINES, SUPERINTENDENT OF THE WESTERN POLICE DISTRICT, and THE MEMBERS OF THE PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF MANILA, respondents. G.R. No. 83979 November 14, 1988. LUIS D. BELTRAN, petitioner, vs. EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY ORDOEZ, UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE CITY FISCAL OF MANILA JESUS F. GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila, respondents. Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585. Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R. Nos. 82827 and 83979. RESOLUTION PER CURIAM: In these consolidated cases, three principal issues were raised: (1) whether or not petitioners were denied due process when informations for libel were filed against them although the finding of the existence of a prima facie case was still under review by the Secretary of Justice and, subsequently, by the President; (2) whether or not the constitutional rights of Beltran were violated when respondent RTC judge issued a warrant for his arrest without personally examining the complainant and the witnesses, if any, to determine probable cause; and (3) whether or not the President of the Philippines, under the Constitution, may initiate criminal proceedings against the petitioners through the filing of a complaint-affidavit. Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the Secretary of Justice denied petitioners' motion for reconsideration and upheld the resolution of the Undersecretary of Justice sustaining the City Fiscal's finding of a prima facie case against petitioners. A second motion for reconsideration filed by petitioner Beltran was denied by the Secretary of Justice on April 7, 1988. On appeal, the President, through the Executive Secretary, affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for reconsideration was denied by the Executive Secretary on May 16, 1988. With these developments, petitioners'

contention that they have been denied the administrative remedies available under the law has lost factual support. It may also be added that with respect to petitioner Beltran, the allegation of denial of due process of law in the preliminary investigation is negated by the fact that instead of submitting his counteraffidavits, he filed a "Motion to Declare Proceedings Closed," in effect waiving his right to refute the complaint by filing counter-affidavits. Due process of law does not require that the respondent in a criminal case actually file his counter-affidavits before the preliminary investigation is deemed completed. All that is required is that the respondent be given the opportunity to submit counter-affidavits if he is so minded. The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads: Art. III, Sec. 2. 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 nder 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. The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down guidelines for the issuance of warrants of arrest. The procedure therein provided is reiterated and clarified in this resolution. It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with regard to the issuance of the warrants of arrest, a finding of grave abuse of discretion amounting to lack or excess of jurisdiction cannot be sustained. Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential immunity from suit impose a correlative disability to file suit." He contends that if criminal proceedings ensue by virtue of the President's filing of her complaint-affidavit, she may

subsequently have to be a witness for the prosecution, bringing her under the trial court's jurisdiction. This, continues Beltran, would in an indirect way defeat her privilege of immunity from suit, as by testifying on the witness stand, she would be exposing herself to possible contempt of court or perjury. The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office holder's time, also demands undivided attention. But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President's behalf. Thus, an accused in a criminal case in which the President is complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against such accused. Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. Thus, if so minded the President may shed the protection afforded by the privilege and submit to the court's jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the President's prerogative. It is a decision that cannot be assumed and imposed by any other person. As regards the contention of petitioner Beltran that he could not be held liable for libel because of the privileged character or the publication, the Court reiterates that it is not a trier of facts and that such a defense is best left to the trial court to appreciate after receiving the evidence of the parties. As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling effect" on press freedom, the Court finds no basis at this stage to rule on the point. The petitions fail to establish that public respondents, through their separate acts, gravely abused their discretion as to amount to lack of jurisdiction. Hence, the writs of certiorari and prohibition prayed for cannot issue. WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the part of the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979. The Order to maintain the status quo contained in the Resolution of the Court en banc dated April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED. Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino Medialdea and Regalado, JJ., concur. G.R. No. 110436 June 27, 1994 ROMAN A. CRUZ, JR., petitioner, vs. PEOPLE OF THE PHILIPPINES, THE SANDIGANBAYAN (First Division), and OFFICE OF THE OMBUDSMAN, respondents. Siguion Reyna, Montecillo & Ongsianlo for petitioner. The Solicitor Generalfor the People of the Philippines. REGALADO, J.: The present original action for certiorari, prohibition and mandamus seeks the reversal of the Orders issued by respondent Sandiganbayan in Criminal Case No. 14252, dated February 17, 1993

and May 12, 1993, 2 denying petitioners Omnibus Motion and Motion for Reconsideration, respectively. The facts are summarized in the Memorandum of public respondents as follows: 1. The Government Service Insurance System (the GSIS, for short) filed two separate criminal complaints against petitioner Roman A. Cruz, Jr., a former public official who used to be the President and General Manager of the GSIS and, also, the President of the Manila Hotel, for violation of Section 3(e) of Republic Act No. 3019, as amended. The first complaint against petitioner was filed with the Office of the Special Prosecutor (the OSP, for short) and docketed as OSP-88-02028 while the second, which involved the same set of facts, was filed with the Presidential Commission on Good Government (the PCGG, for short) but which was later endorsed to the Office of the Ombudsman and docketed as OMB-0-91-0986. . . . 2. A preliminary investigation was conducted by the PCGG where petitioner duly submitted his counter-affidavit. As a consequence of said investigation, an Information was filed with the first Division of the Sandiganbayan, docketed as Criminal Case No. 14134, charging petitioner with violation of Section 3(e) of Republic Act No. 3019. . . . 3. During the proceedings before the OSP, petitioner moved to dismiss the complaint. The OSP, however, denied the motion and filed with the Third Division of the Sandiganbayan an Information charging petitioner with Estafa through Falsification of Public Documents (Articles 171 and 315 of the Revised Penal Code), docketed as Criminal Case No. 14252. Petitioner was deemed by the OSP to have waived his right to submit a counter-affidavit and supporting evidence. . . . 4. As a result of the filing of two informations with respondent Sandiganbayan involving the same accused (herein petitioner) and the same set of facts, Criminal Case No. 14252 was consolidated with Criminal Case No. 14134 which was pending before the First Division of respondent Sandiganbayan. . . . 5. Respondent Sandiganbayan, however, remanded the consolidated cases against petitioner to the Office of the Ombudsman for reinvestigation inasmuch as: a) the Information in Criminal Case No. 14134 was ordered dismissed in compliance with the ruling of the Supreme Court in Cojuangco, Jr. vs. PCGG, et al., G.R. Nos. 92319-20, October 2, 1990, which declared null and void the preliminary investigations conducted by the PCGG in all criminal cases involving matters which were the subject matter of civil cases earlier filed; and b) the Information in Criminal Case No. 14252 was correctly assailed by petitioner as having been filed without the proper preliminary investigation. . . . 6. During the preliminary investigation conducted anew by the Office of the Ombudsman, petitioner submitted his counter-affidavit and supporting documents. After the completion of said investigation, Prosecutor Leonardo P. Tamayo of the Office of the Ombudsman prepared a Resolution dated February 11, 1992, which recommended the withdrawal of the Information in Criminal Case No. 14252. . . .

7. Respondent Ombudsman, however, despite the above recommendation of the investigating prosecutor ordered the prosecution to proceed under the existing Information in Criminal Case No. 14252 on his observation, viz: Let us not do the defending for the accused. The explanations offered are too strained to be believed. At best they are matters of defense for the accused to prove at the trial. The alleged character of the funds involved being confidential and requires no auditing is totally immaterial. It could even explain why this anomaly was committed. . . . 8. Petitioner thus filed with respondent Sandiganbayan (First Division) an Omnibus Motion to Quash the Information, dated September 17, 1992, wherein he prayed ". . . for the production of (the) record of the preliminary investigation), and that the information be quashed outright or the disapproval of the Ombudsman set aside, or in the alternative, that the Office of the Ombudsman be ordered to conduct further proceedings, particularly the handwriting analysis prayed for by the petitioner which would establish who committed the alleged falsification. . . . On February 17, 1993, respondent Sandiganbayan promulgated a Resolution dated February 15, 1993, the dispositive portion of which reads: WHEREFORE, the Omnibus Motion of accused Roman A. Cruz, Jr. is DENIED for lack of merit. . . . 10. A Motion for Reconsideration, dated April 12, 1993, of the aforequoted Resolution was filed by petitioner . . . . 11. On May 12, 1993, respondent Sandiganbayan promulgated a Resolution, the dispositive portion of which reads: WHEREFORE, the Motion for Reconsideration of accused Roman A. Cruz, Jr. of this Courts Resolution dated February 17, 1993 is DENIED for lack of merit. . . . 12. Hence, petitioner filed the instant petition. 3 Petitioner contends that respondent Sandiganbayan committed a grave abuse of discretion: 1. In not dismissing the information considering that the Ombudsmans approval of the order dismissing the complaint did not state the factual or legal basis therefor; 2. In not requiring the production of the record of the preliminary investigation in wanton disregard of petitioners right to due process; 3. In not dismissing the information considering that, as found by the investigating prosecutor, the money received by petitioner was a cash advance; and 4. In not requiring the Office of the Ombudsman to conduct further proceedings. We do not find the instant petition to be impressed with merit as to warrant the extraordinary writs prayed for. The information filed against herein petitioner charging him with estafa through falsification of public documents and for which he stands to be tried before respondent court alleges: That on or about or during the period from March 26, 1984 to May 11, 1984, or sometime prior or subsequent thereto, at the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, Roman Cruz, Jr., then President

and General Manager of the Government Service Insurance System (GSIS) and likewise President of the Manila Hotel, hence a public official having been duly appointed/elected and qualified as such, taking advantage of his position, by means of deceit, committing an offense in relation to his office, did then and there wilfully, unlawfully and feloniously falsify Manila Hotel Invoices, Transportation, Charge, Cash, Budget for Food and Drinks vouchers in the aggregate amount of P350,000.00 and then make it appear that the GSIS management and staff had a five-day coordination meeting at the Manila Hotel from March 23 to 30, 1984 at the cost of P350,000.00, for which reason the GSIS paid/issued its check with No. 039511 dated May 11, 1984 in the amount of P350,000.00 which check was deposited to the account of the Manila Hotel, and thereafter cause the Manila Hotel to issue its check with No. 007272 dated May 11, 1984 in the amount of P350,000.00 payable to Roman Cruz, Jr. or himself, when in truth and in fact, as the accused well knew that there was no such five-day GSIS management and staff coordination meeting conducted/held at the Manila Hotel; and further thereafter convert and appropriate to his own personal use and benefit/deposit the said check to his own personal account with the Far East Bank and Trust Co. the said check/amount of P350,000.00 to the damage and prejudice of the GSIS and/or Manila Hotel and/or the government in the said amount of P350,000.00. 4 I. Petitioner initially submits that respondent Sandiganbayan acted with grave abuse of discretion in not dismissing the information considering that the Ombudsmans disapproval of the order dismissing the complaint did not state the factual or legal basis therefor, in violation of the cardinal rules set forth in Ang Tibay, et al. vs. CIR, et al. 5 The submission is premised on the theory that said rules apply to a preliminary investigation which is to be considered quasi-judicial in nature. Petitioner avers that it is the duty of the Ombudsman to assess the evidence and defenses of the respondent in deciding a case, a failure wherein constitutes a violation of ones right to due process of law. He further claims that "while the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support the decision. The Ombudsman in this case not only failed to decide right but has nothing at all to support his decision." 6 Respondents, on the other hand, aver that the Office of the Ombudsman is not exercising quasijudicial or quasi-legislative powers because "it does not act as a court" when it conducts preliminary investigation of cases falling under its jurisdiction. It is settled that the conduct of a preliminary investigation, which is defined as "an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a wellfounded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial," 7 is, like court proceedings, subject to the requirements of both substantive and procedural due process. This is because, a preliminary investigation is considered as a judicial proceeding wherein the prosecutor or investigating officer, by the nature of his functions, acts as a quasi-judicial officer. As we held in Cojuangco, Jr. vs. PCGG, et al.: 8 . . . It must be undertaken in accordance with the procedure provided in Section 3, Rule 112 of the 1985 Rules of Criminal Procedure. This procedure is to be

observed in order to assure that a person undergoing such preliminary investigation will be afforded due process. As correctly pointed out by petitioner, an indispensable requisite of due process is that the person who presides and decides over a proceeding, including a preliminary investigation, must possess the cold neutrality of an impartial judge. Although such a preliminary investigation is not a trial and is not intended to usurp the function of the trial court, it is not a casual affair. The officer conducting the same investigates or inquires into the facts concerning the commission of the crime with the end in view of determining whether or not an information may be prepared against the accused. Indeed, a preliminary investigation is in effect a realistic judicial appraisal of the merits of the case. Sufficient proof of the guilt of the accused must be adduced so that when the case is tried, the trial court may not be bound as a matter of law to order an acquittal. A preliminary investigation has then been called a judicial inquiry. It is a judicial proceeding. An act becomes judicial when there is opportunity to be heard and for the production and weighing of evidence, and a decision is rendered thereon. The authority of a prosecutor or investigating officer duly empowered to preside or to conduct a preliminary investigation is no less than that of a municipal judge or even a regional trial court judge. While the investigating officer, strictly speaking is not a "judge," by the nature of his functions he is and must be considered to be a quasi-judicial officer. In the present case, petitioner asserts that his right to due process was violated in that respondent Ombudsman failed to assess and consider the evidence presented by petitioner in disapproving the recommendation for dismissal of the case by the investigating prosecutor, and his ruling is not supported by the evidence on record. The argument is specious. His submission that he was deprived of his right to due process hinges on the erroneous assumption that the order of the Ombudsman for the filing of the necessary information is lacking in any factual or legal basis. Such a conclusion, however, stems from the fact that said order did not entail a discussion of the rationale for the Ombudsmans action. It may seem that the ratio decidendi for the Ombudsmans order may be wanting but this is not a case of a total absence of factual and legal bases nor a failure to appreciate the evidence presented. What is actually involved here is merely a review of the conclusion arrived at by the investigating prosecutor as a result of his study and analysis of the complaint, counter-affidavits, and the evidence submitted by the parties during the preliminary investigation. The Ombudsman here is not conducting anew another investigation but is merely determining the propriety and correctness of the recommendation given by the investigating prosecutor, that is, whether probable cause actually exists or not, on the basis of the findings of fact of the latter. Verily, it is discretionary upon the Ombudsman if he will rely mainly on the findings of fact of the investigating prosecutor in making a review of the latters report and recommendation, as the Ombudsman can very well make his own findings of fact. There is nothing to prevent him from acting one way or the other. As a matter of fact, Section 4, Rule 112 of the Rules of Court provides that "where the investigating assistant fiscal recommends the dismissal of the case but his findings are reversed by the provincial or city fiscal or the chief state prosecutor on the ground that a probable cause exists, the latter may, by himself, file the corresponding information against the respondent or direct any

other assistant fiscal or state prosecutor to do so, without conducting another preliminary investigation. 9 With more reason may the Ombudsman not be faulted in arriving at a conclusion different from that of the investigating prosecutor on the basis of the same set of facts. It cannot be said that the Ombudsman committed a grave abuse of discretion simply because he opines contrarily to the prosecutor that, under the facts obtaining in the case, there is probable cause to believe that herein petitioner is guilty of the offense charged. As aptly pointed out by respondent court in its resolution denying petitioners motion for reconsideration, "to the Ombudsman, the narration of facts by Prosecutor Tamayo, . . . demonstrated adequate cause to prosecute the accused Cruz." 10 Furthermore, public respondents, in their Memorandum, correctly observed that "(f)rom the tenor of respondent Ombudsmans statement, it is clear that he agreed with the findings of facts of the investigating prosecutor but disagreed with the latters conclusion on the import and significance of said findings. On the basis of the findings of facts of the investigating prosecutor, which were not disputed by petitioner, respondent Ombudsman believed that there was sufficient ground to engender a well-founded belief that a crime had been committed and that petitioner is probably guilty thereof." 11 Petitioner argues that the indication of disapproval by the Ombudsman which consists merely of two paragraphs fails to point out the issues and relevant facts and is consequently whimsical, capricious and arbitrary. Such proposition is fallacious. The mere fact that the order to file an information against petitioner consists only of two paragraphs is not sufficient to impute arbitariness or caprice on the part of the Ombudsman, absent a clear showing that he gravely abused his discretion in disapproving the recommendation of the investigating prosecutor. Neither is it tainted with vindictiveness or oppression. He disapproved the recommendation of the special prosecutor because he sincerely believed that there is sufficient evidence to indict the accused. This is an exercise of the Ombudsmans power based upon constitutional mandate, and the courts should not interfere in such exercise. The rule is based not only upon the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they could be compelled to review the exercise of discretion on the part of the prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complaint. 12 II. Petitioner next avers that the error of respondent court in not requiring the production of the record of the preliminary investigation is two-fold. First, it was in violation of the constitutional right against arbitrary arrests because probable cause was not "personally determined by the judge," considering that the records of the preliminary investigation were not elevated to the judge for examination. Second, it was in violation of petitioners right to due process of law since he was deprived of the opportunity to examine the evidence against him and prepare his defense. On the first issue, petitioner relies on the ruling in Lim, Sr., et al. vs. Felix, et al. 13 which held that If a judge relies entirely on the certification of the prosecutor as in this case where all the records of the investigation are in Masbate, he or she has not personally

determined probable cause. The determination is made by the Provincial Prosecutor. The constitutional requirement has not been satisfied. The judge commits a grave abuse of discretion. The conduct of a preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or one for the determination of a probable cause for the issuance of a warrant of arrest. The first aspect of preliminary investigation is executive in nature. It is part of the prosecutions job. The second kind of preliminary investigation, which is more properly called preliminary examination, is judicial in nature and is lodged with the judge. 14 For the latter, in the exercise of the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscals report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. 15 Coming now to the case at bar, contrary to petitioners thesis, respondent court, in its resolution promulgated on February 17, 1993 denying petitioners motion to quash the information, found the existence of probable cause after making a deliberate and exhaustive review of the facts obtaining in the case. Thus: All of the above logical process, which is supported both by the finding of fact in the Resolution and by admissions in the Motion of the accused, lead to the conclusion that probable cause exists against accused Roman Cruz, Jr., for acts described in the Information in the instant case. The narration of facts culled from the record (as affirmed by both parties) support the narration of facts in the Information. The superficial analysis of the admissions made above indicate that the elements of Article 315 of the Revised Penal Code as well as of Articles 171 and 172 thereof may probably be established. It is true that the Manila Hotel eventually treated the P350,000.00 as a "cash advance" to him. Accused Cruz, however, does not claim that there were cash advances made by him as a consequence of which he received this sum. Nor has accused Roman Cruz said that he had obtained a loan or cash advance from the Manila Hotel for a particular purpose for which he was expected to subsequently render an accounting. All that Manila Hotels subsequent description of this amount as a "cash advance," in fact, says is that when it turned out that P350,000.00 could not be properly accounted for, it had to be treated as an amount which accused Cruz had to pay back; thus, accountingwise, a cash advance. For accused to have received such a large amount from a company of which he was the President required him to sign a receipt which would specify clearly what he was receiving it for. If he received the sum as a cash advance for some future expense, the Manila Hotel documents would clearly so demonstrate. If he received it as a cash advance (against his salaries or other benefits), it would appear as a loan in Manila Hotels books. Accused Cruz, however, has said no such thing in

any of his pleadings nor apparently has he so stated during the preliminary investigation. In other words, accused Cruz as President of the Manila Hotel and, therefore, in a position of great fiduciary nature received P350,000.00 in 1984 either for a non-existent reason or for a false reason. He may have an explanation. As of this time, however, if the evidence on record is actually presented at trial, enough evidence would exist to put accused Roman A. Cruz, Jr. at peril of his liberty and would require him to explain his side of the matter. A case has, therefore, been demonstrated in the record and in the averment of accused Cruz himself that the crime charged has probably been committed and that the accused is probably guilty thereof. (Emphasis supplied.) 16 Petitioner would have respondent court order the production of the records of the preliminary investigation in its determination of the existence of probable cause for the issuance of the warrant of arrest. First and foremost, as hereinabove stated, in a preliminary examination for the issuance of a warrant of arrest, the court is not tasked to review in detail the evidence submitted during the preliminary investigation. It is sufficient that the judge personally evaluates the report and supporting documents submitted by the prosecution in determining probable cause. 17 This is precisely what respondent court did. In resolving the issue of probable cause, respondent court made an in-depth analysis of the findings of fact of Prosecutor Tamayo, as well as the Omnibus Motion submitted by petitioner. The correctness of these facts was not even questioned by herein petitioner but, on the contrary was expressly affirmed in the latters Omnibus Motion dated September 17, 1992 wherein it was stated that "(t)he Order issued by the investigating prosecutor . . . contains a lucid narration of the relevant facts." The case of Lim cited by petitioner is not applicable to the present case because, in the former, a warrant of arrest was issued by the respondent judge therein without conducting his own personal evaluation of the case even if only on the basis of the report submitted by the fiscal. Instead, the respondent therein simply declared: "Considering that both the two competent officers to whom such duty was entrusted by law have declared the existence of probable cause, each information is complete in form and substance, and there is no visible defect on its face, this Court finds it just and proper to rely on the prosecutors certification in each information . . . . This is far from what actually transpired before the Sandiganbayan as reflected by the records in this case. Hence, the ruling in Lim cannot be properly invoked. As to the second issue, petitioner relies on the provisions of Section 8, Rule 112 of the 1985 Rules on Criminal Procedure, to wit: Sec. 8. Record of preliminary investigation. The record of the preliminary investigation whether conducted by a judge or a fiscal, shall not form part of the record of the case in the Regional Trial Court. However, the said court, on its own initiative or that of any party, may order the production of the record or any part thereof whenever the same shall be necessary in the resolution of the case or any incident therein, or shall be introduced as evidence by the party requesting for its production.

Petitioners prayer for the production of the record is intended not only for proper observance of the constitutional requirement that probable cause be determined personally by the judge, but also to enable him to examine the evidence and prepare his defenses and for trial. Public respondents contend that the production of the record of the preliminary examination is not necessary since petitioner can always resort to any of the modes of discovery available to an accused under the Rules of Court, specifically citing Section 11 of Rule 116, which provides: Sec. 11. Production or inspection of material evidence in possession of prosecution. On motion of the accused showing good cause and with notice to all parties, the court, in order to prevent surprise, suppression, or alteration, may order the prosecution to produce and permit the inspection and copying or photographing, of any written statements given by the complainant and other witnesses in any investigation of the offense conducted by the prosecution or any other investigating officers, as well as of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not otherwise privileged, which constitute or contain evidence material to any matter involved in the case, and which are in the possession or under the control of the prosecution, the police, or any other law investigating agencies. This rule refers to the right of the accused to move for production or inspection of material evidence in the possession of the prosecution. It authorizes the defense to inspect, copy or photograph any evidence of the prosecution in its possession after obtaining the permission of the court. A motion showing good reasons for the granting of the permission must be filed by the defense for this purpose, with notice to all parties. 18 It will be noted at the outset that precisely, as suggested by public respondents, herein petitioner, in asking for the production of the records of the preliminary investigation in order to enable him to prepare for his defense and for trial, is actually trying to avail of this mode of discovery. There was good cause shown for the motion to produce the records, that is, so that they may be introduced as evidence by the party requesting for their production, which is one of the grounds provided for under Section 8, Rule 112 of the Rules of Court. It is true that the granting of permission lies within the discretion of the court. However, respondent court in this case has failed to sufficiently justify its refusal to have the records of the preliminary investigation produced before it so that petitioner may use them for his defense, either in its resolutions denying petitioners Omnibus Motion and Motion for Reconsideration, or in the pleadings and Memorandum filed by herein respondents before this Court. Consequently, we find no reason to deny petitioner the right to avail of such mode of discovery. If only for the reason that petitioner should be given the opportunity to inspect the evidence presented during the preliminary investigation solely for the purpose of enabling him to prepare for his defense and for trial, this questioned resolution of respondent Sandiganbayan should be modified. III. It is likewise contended that respondent court abused its discretion in not dismissing the information considering that, as found by the investigating prosecutor, the money received by petitioner was a cash advance for which he can only be held civilly liable, but which civil liability has already been extinguished. Citing the case of Yong Chan Kim vs. People, et al., 19 which held that a cash advance is in the form of a loan and, therefore, there can be no estafa committed, petitioner argues that he only incurred civil liability for the cash advance he obtained from the Manila Hotel. However, he contends that such liability had allegedly been extinguished when his

leave credits and other benefits were withheld, the total of which was more than sufficient to liquidate the advance made. Also, it is argued that petitioner was denied due process when respondent court failed to remand the case to the Ombudsman for further proceedings for the purpose of determining the persons who actually forged the questioned documents by conducting a handwriting analysis. This would have secured him from hasty and malicious prosecution, and would even have led to the discovery of the true culprit, if indeed documents had been fabricated. It must here be stressed that a preliminary investigation is merely inquisitorial, and it is often the only means of discovering the persons who may be reasonably charged with a crime, to enable the prosecutor to prepare his complaint or information. It is not a trial of the case on the merits and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof, and it does not place the persons against whom it is taken in jeopardy. 20 The established rule is that a preliminary investigation is not the occasion for the full and exhaustive display of the parties evidence; it is for the presentation of such evidence only as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof. 21 Conformably therewith, the arguments raised by herein petitioner that the cash advance is actually in the form of a loan and therefore no criminal liability attaches, and that respondent court should have remanded the case for further investigation to determine the true identity of the forgers, are all matters of defense which are best presented during the trial before respondent court for its consideration. The main function of the government prosecutor during the preliminary investigation is merely to determine the existence of probable cause, and to file the corresponding information if he finds it to be so. And, probable cause has been defined as the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. 22 In the case at bar, the Ombudsman found that there was sufficient ground to believe that petitioner is guilty of the crime charged on the basis of the factual findings of Prosecutor Tamayo in the latters Order dated February 11, 1992 which were arrived at after taking into consideration the evidence presented by the parties. A cursory perusal of the records of this case will show that the findings of fact by the Office of the Ombudsman are supported by substantial evidence, hence the same should be considered conclusive. 23 Furthermore, the Ombudsmans findings are essentially factual in nature. Accordingly, in assailing said findings on the contention that the Ombudsman committed a grave abuse of discretion in holding that petitioner is liable for estafa through falsification of public documents, petitioner is clearly raising questions of fact here. 24 His arguments are anchored on the propriety of or error in the Ombudsmans appreciation of facts. Petitioner cannot be unaware that the Supreme Court is not a trier of facts, more so in the consideration of the extraordinary writ of certiorari where neither questions of fact nor even of law are entertained, but only questions of lack or excess of jurisdiction or grave abuse of discretion. 25 Insofar as this third issue is concerned, therefore, we find that no grave abuse of discretion has been committed by respondents which would warrant the granting of the writ of certiorari.

WHEREFORE, the resolutions appealed from are hereby AFFIRMED, with the modification that respondent Ombudsman is DIRECTED to produce the pertinent records of the preliminary investigation before the Sandiganbayan at the proper juncture of the proceedings therein and on sufficient justification therefor. SO ORDERED. Narvasa, C.J., Padilla, Puno and Mendoza, JJ., concur. Constitutional Law II : Searches & Seizures (Chapter 10) Xavier University (Ateneo de Cagayan) - College of Law Farhanna B. Mapandi (Block A) 29 LIM, SR. VS JUDGE FELIX GR NOS. 95954-7 (FEBRUARY 19, 1991) GUTTIEREZ, JR., J. Facts: -On March 17, 1989, at about 7:30 o'clock in the morning, at the vicinity of the airport road of the Masbate Domestic Airport, located at the municipality of Masbate province of Masbate, Congressman Moises Espinosa, Sr. and his security escorts, namely Provincial Guards Antonio Cortes, Gaspar Amaro, and Artemio Fuentes were attacked and killed by a lone assassin. Dante Siblante another security escort of Congressman Espinosa, Sr. survived the assassination plot, although, he himself suffered a gunshot wound. -An investigation of the incident then followed. -Thereafter, and for the purpose of preliminary investigation, the designated investigator, Harry O. Tantiado, TSg, of the PC Criminal Investigation Service at Camp Bagong Ibalon Legazpi City filed an amended complaint with the Municipal Trial Court of Masbate accusing, among others, Vicente Lim, Sr., Mayor Susana Lim of Masbate, Jolly T. Fernandez, Florencio T. Fernandez, Jr., Nonilon A. Bagalihog, Mayor Nestor C. Lim and Mayor Antonio Kho of the crime of multiple murder and frustrated murder in connection with the airport incident. The case was docketed as Criminal Case No. 9211. -After conducting the preliminary investigation, the court issued an order dated July 31, 1989 stating therein that: . . . after weighing the affidavits and answers given by the witnesses for the prosecution during the preliminary examination in searching questions and answers, concludes that a probable cause has been established for the issuance of a warrant of arrest of named accused in the amended complaint, namely, Jimmy Cabarles, Ronnie Fernandez, Nonilon Bagalihog, Jolly Fernandez, Florencio Fernandez, Jr., Vicente Lim, Sr., Susana Lim, Nestor Lim, Antonio Kho, Jaime Liwanag, Zaldy Dumalag and Rene Tualla

alias Tidoy. - Petitioners Vicente Lim, Sr. and Susana Lim filed with the respondent court several motions and manifestations which in substance prayed that an order be issued requiring the transmittal of the initial records of the preliminary inquiry or investigation conducted by the Municipal Judge Barsaga of Masbate for the best enlightenment regarding the existence of a probable cause or prima facie evidence as well as the determination of the existence of guilt, pursuant to the mandatory mandate of the constitution that no warrant shall be issued unless the issuing magistrate shall have himself been personally convinced of such probable cause. - In another manifestation, the Lims reiterated that the court conduct a hearing to determine if there really exists a prima facie case against them in the light of documents which are recantations of some witnesses in the preliminary investigation. - It should also be noted that the Lims also presented to the respondent Judge documents of recantation of witnesses whose testimonies were used to establish a prima facie case against them. -On July 5, 1990, the respondent court issued an order denying for lack of merit the motions and manifestations and issued warrants of arrest against the accused including the petitioners herein. The judge wrote, In the instant cases, the preliminary investigation was conducted by the Municipal Trial Court of Masbate, Masbate which found the existence of probable cause that the offense of multiple murder was committed and that all the accused are probably guilty thereof, which was affirmed upon review by the Provincial Prosecutor who properly filed with the Regional Trial Court four separate informations for murder. Considering that both the two competent officers to whom such duty was entrusted by law have declared the existence of probable cause, each information is complete in form and substance, and there is no visible defect on its face, this Court finds it just and proper to rely on the prosecutor's certification in each information -Petitioners question the judgment of Judge Felix (statement immediately preceding this paragraph, italicized). ISSUE: WON a judge may issue a warrant of arrest without bail by simply relying on the prosecution's certification and recommendation that a probable cause exists. RULING: The questioned Order of respondent Judge Nemesio S. Felix of Branch 56, Regional Trial Court of Makati dated July 5, 1990 is declared NULL and VOID and SET ASIDE. RD: As held in Soliven v. Makasiar, the Judge does not have to personally examine the complainant and his witnesses. The Prosecutor can perform the same functions as a commissioner for the taking of the evidence. However, there should be necessary documents and a report supporting the Fiscal's bare certification. All of these should be before the Judge.

We cannot determine beforehand how cursory or exhaustive the Judge's examination should be. Usually, this depends on the circumstances of each case. The Judge has to exercise sound discretion; after all, the personal determination is vested in the Judge by the Constitution. However, to be sure, the Judge must go beyond the Prosecutor's certification and investigation report whenever necessary. As mentioned in the facts (stated above), the Lims presented documents of recantations of the witnesses. Although, the general rule is that recantations are not given much weight in the determination of a case and in the granting of a new trial the respondent Judge before issuing his own warrants of arrest should, at the very least, have gone over the records of the preliminary examination conducted earlier in the light of the evidence now presented by the concerned witnesses in view of the "political undertones" prevailing in the cases. In making the required personal determination, a Judge is not precluded from relying on the evidence earlier gathered by responsible officers. The extent of the reliance depends on the circumstances of each case and is subject to the Judge's sound discretion. However, the Judge abuses that discretion when having no evidence before him, he issues a warrant of arrest. Indubitably, the respondent Judge (Felix) committed a grave error when he relied solely on the Prosecutor's certification and issued the questioned Order dated July 5, 1990 without having before him any other basis for his personal determination of the existence of a probable cause. G.R. No. 150185 May 27, 2004 TERESITA TANGHAL OKABE, petitioner, vs. HON. PEDRO DE LEON GUTIERREZ, in his capacity as Presiding Judge of RTC, Pasay City, Branch 119; PEOPLE OF THE PHILIPPINES; and CECILIA MARUYAMA, respondents. DECISION CALLEJO, SR., J.: Before us is a petition for review on certiorari, under Rule 45 of the Rules of Court, as amended, that part of the Decision1 of the Court of Appeals in CA-G.R. SP No. 60732 dismissing her petition for certiorari under Rule 65 of the Rules of Court, as amended, for the nullification of the August 25 and 28, 2000 Orders of the respondent judge in Criminal Case No. 00-0749. The Antecedents Cecilia Maruyama executed a fifteen-page affidavit-complaint2 and filed the same with the Office of the City Prosecutor of Pasay City, on December 29, 1999, charging Lorna Tanghal and petitioner Teresita Tanghal Okabe, a.k.a. Shiela Okabe, with estafa. In her affidavit, Maruyama alleged, inter alia, that on December 11, 1998, she entrusted Y11,410,000 with the peso equivalent of P3,993,500 to the petitioner, who was engaged in the business of "door-to-door delivery" from Japan to the Philippines. It was alleged that the petitioner failed to deliver the money as agreed

upon, and, at first, denied receiving the said amount but later returned only US$1,000 through Lorna Tanghal. During the preliminary investigation, the complainant, respondent Maruyama, submitted the affidavit of her witnesses, namely, Hermogena Santiago, Wilma Setsu and Marilette G. Izumiya and other documentary evidence. In her affidavit, Setsu alleged that the money which was entrusted to the petitioner for delivery to the Philippines belonged to her and her sister Annie Hashimoto, and their mother Hermogena Sanchez-Quicho, who joined respondent Maruyama in her complaint against petitioner Okabe and Tanghal. Respondent Maruyama, likewise, submitted a reply3 to the petitioners counter-affidavit. After the requisite preliminary investigation, 2nd Assistant City Prosecutor Joselito J. Vibandor came out with a resolution dated March 30, 2000, finding probable cause for estafa against the petitioner.4 Attached to the resolution, which was submitted to the city prosecutor for approval, was the Information5 against the petitioner and Maruyamas affidavit-complaint. The city prosecutor approved the resolution and the Information dated March 30, 2000 attached thereto.6 On May 15, 2000, an Information against the petitioner was filed in the Regional Trial Court of Pasay City, docketed as Criminal Case No. 00-0749. The case was raffled to Branch 119 of the court presided by Judge Pedro de Leon Gutierrez.7 The accusatory portion of the Information reads: That on or about December 12, 1998 in Pasay City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused defrauded Cecilia Maruyama and Conchita Quicho, complainant herein, in the following manner, to wit: said accused received in trust from Cecilia Maruyama the amount of Japanese Yen 1141 (sic) with peso equivalent to P3,839,465.00 under obligation to deliver the money to Conchita Quicho at the NAIA International Airport, Pasay City, immediately upon accused arrival from Japan, but herein accused once in possession of the same, did, then and there willfully, unlawfully and feloniously misappropriate and convert to her own personal benefit the said amount, and despite demands accused failed and refused to do so, to the damage and prejudice of the complainants in the aforesaid amount. Contrary to law.8 Appended to the Information was the affidavit-complaint of respondent Maruyama and the resolution of Investigating Prosecutor Vibandor. On May 19, 2000, the trial court issued a warrant for the arrest of the petitioner with a recommended bond of P40,000. On June 15, 2000, the petitioner posted a personal bail bond in the said amount, duly approved by Judge Demetrio B. Macapagal, the Presiding Judge of Branch 79 of the RTC of Quezon City, who forthwith recalled the said warrant. The approved personal bail bond of the petitioner was transmitted to the RTC of Pasig City on June 21, 2000. Upon her request, the petitioner was furnished with a certified copy of the Information, the resolution and the criminal complaint which formed part of the records of the said case. The petitioner left the Philippines for Japan on June 17, 2000 without the trial courts permission, and returned to the Philippines on June 28, 2000. She left the Philippines anew on July 1, 2000, and returned on July 12, 2000. On July 14, 2000, the trial court issued an Order setting the petitioners arraignment and pre-trial at 2:00 p.m. of July 16, 2000. On the same day, the private prosecutor filed an urgent ex parte motion for the issuance of the hold departure order, alleging as follows:

3. It has come to the knowledge of private complainant that there is an impending marriage within the Philippines of either the son or daughter of the above-named accused and that the above-named accusedwho has businesses in Japan, and is presently in Japan will soon exit Japan and enter the Philippines to precisely attend said wedding; 4. Given [a] the bail was fixed at merely P40,000.00 and [b] the considerable financial capability of the accused, it is a foregone conclusion that the above-named accused will, upon arrest, readily and immediately post bond, and leave for Japanthereby frustrating and rendering inutile the administration of criminal justice in our country. The speed with which accused Teresita Sheila Tanghal Okabe can post bond and leave for Japan effectively evading arraignment and pleathus necessitates the immediate issuance of a Hold Departure Order even before her arrival here in the Philippines;9 The trial court issued an order on the same day, granting the motion of the private prosecutor for the issuance of a hold departure order and ordering the Commission on Immigration and Deportation (CID) to hold and prevent any attempt on the part of the petitioner to depart from the Philippines.10 For her part, the petitioner filed on July 17, 2000 a verified motion for judicial determination of probable cause and to defer proceedings/arraignment, alleging that the only documents appended to the Information submitted by the investigating prosecutor were respondent Maruyamas affidavit-complaint for estafa and the resolution of the investigating prosecutor; the affidavits of the witnesses of the complainant, the respondents counter-affidavit and the other evidence adduced by the parties were not attached thereto. The petitioner further alleged that the documents submitted by the investigating prosecutor were not enough on which the trial court could base a finding of probable cause for estafa against her. She further averred that conformably to the rulings of this Court in Lim v. Felix11 and Roberts, Jr. v. Court of Appeals,12 it behooved the investigating prosecutor to submit the following to the trial court to enable it to determine the presence or absence of probable cause: (a) copies of the affidavits of the witnesses of the complainant; (b) the counter-affidavit of Okabe and those of her witnesses; (c) the transcripts of stenographic notes taken during the preliminary investigation; and, (d) other documents presented during the said investigation. On July 19, 2000, the petitioner filed a Very Urgent Motion To Lift/Recall Hold Departure Order dated July 17, 2000 and/or allow her to regularly travel to Japan alleging, thus: 3. Accused is (sic) widow and the legitimate mother of three (3) children, two (2) of whom are still minors, namely: 3.1. Okabe, Jeffrey-18 years old born on 13 August 1981. 3.2. Okabe, Masatoshi-14 years old and born on 16 October 1985, 3rd year High School student at Hoshikuki, Chiba City, Matsugaoka, High School, residing at Chiba City, Chuo-Ku, Yahagi-cho, 205, Telephone No. 043-224-5804. 3.3. Okabe, Tomoki-13 years old and born on 13 March 1986, 2nd year High School student at Hoshikuki, Chiba City, Matsugaoka, High School, residing at Chiba City, Chuo-Ku, Yahagi-cho, 205, Telephone No. 043-224-5804. 3.4. The accused has to attend the Parents Teachers Association (PTA) at the Hoshikuki High School where her two (2) minor sons aforesaid are presently enrolled and studying because Okabe, Masatoshis graduation will take place on 26 July 2000.

3.5. The two (2) minor children of the accused absolutely depend their support (basic necessities) for foods, clothings, medicines, rentals, schooling and all other expenses for their survival to their legitimate mother who is the accused herein. 3.6. The issuance of the hold departure order (HDO) will impair the inherent custodial rights of the accused as the legitimate mother over these two (2) minor children which is repugnant to law. 3.7. The issuance of the hold departure order (HDO) will unduly restrict the accused to her custodial rights and visitation over her aforesaid minor children who are permanently living in Japan. 3.8. The issuance of the hold departure order (HDO) will unduly deprived (sic) these minor children to their right to obtain education and survival. 4. Accuseds only source of income and livelihood is door-to-door delivery from Japan to the Philippines and vice versa which has been taking place for a very long period of time and in the process she has been constantly departing from the Philippines on a weekly basis and arriving in Japan on the same frequency, as evidenced by xerox copies of the pages of her Philippine Passports which are hereto attached as Annexes "A," "A-1," "A-2" up to "A-30," respectively. To deprive her of this only source of her livelihood to which the aforesaid two (2) minor children are deriving their very survival in a foreign land will (sic) tantamount to oppression rather than prosecution and depriving the said minor sons of their right to live even before trial on the merits of this case that will (sic) tantamount to the destruction of the future of these minor children.13 The private prosecutor opposed the petitioners motions during the hearing on July 21, 2000 which was also the date set for her arraignment. The hearing of the motions as well as the arraignment was reset to 2:00 p.m. of July 26, 2000. On the said date, the petitioner filed a manifestation objecting to her arraignment prior to the resolution of her pending motions. She alleged that her arraignment for the crime charged should not be made a condition for the granting of her motion to recall the hold departure order issued against her. The arraignment of the petitioner was again reset to 2:00 p.m. of August 28, 2000, pending the resolution of her two motions. On August 25, 2000, the petitioner filed a motion for the postponement of her arraignment alleging that, in case the trial court ruled adversely thereon, she would refuse to enter a plea and seek relief from the appellate court. The court denied the petitioners motions on the following grounds: (a) Based on its personal examination and consideration of the Information, the affidavitcomplaint of respondent Maruyama and the resolution of the investigating prosecutor duly approved by the city prosecutor, the court found probable cause for the petitioners arrest. Since the petitioners motion for a determination of probable cause was made after the court had already found probable cause and issued a warrant for the petitioners arrest, and after the latter filed a personal bail bond for her provisional liberty, such motion was a mere surplusage; (b) When the petitioner posted a personal bail bond for her provisional liberty, she thereby waived her right to question the courts finding of the existence of probable cause for her arrest and submitted herself to the jurisdiction of the court, more so when she filed the motion for the lifting of the hold departure order the court issued, and the motion to defer the proceedings and her arraignment; and

(c) The hold departure order issued by the trial court was in accord with Supreme Court Circular No. 39-97 dated June 19, 1997, as well as the ruling of this Court in Manotoc, Jr. v. Court of Appeals.14 When the case was called for the petitioners arraignment at 2:00 p.m., on August 28, 2000, she refused to plead.15 Her counsel advised her, in open court, not to enter a plea and, with leave of court, left the courtroom. The court then entered a not guilty plea for the petitioner.16 It also issued an order, on the said date, setting the pre-trial and initial presentation of the evidence of the prosecution at 8:30 a.m. of September 20, 2000.17 The petitioner then filed with the Court of Appeals a petition for certiorari under Rule 65 of the Rules of Court with a plea for a writ of preliminary injunction. The case was docketed as CA-G.R. SP No. 60732. The petitioner ascribed the following errors to the trial court: I RESPONDENT COURT GRAVELY ERRED WHEN IT ISSUED WARRANT OF ARREST DESPITE OF (SIC) LACK OF PROBABLE CAUSE II RESPONDENT COURT HAS VIOLATED THE RIGHT OF THE PETITIONER TO DUE PROCESS III RESPONDENT COURT HAS ALREADY PRE-JUDGED THE CONVICTION OF THE PETITIONER FOR ESTAFA IV RESPONDENT COURT HAS EXHIBITED ITS APPARENT PARTIALITY TOWARDS THE PROSECUTION AND AGAINST THE PETITIONER V RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC) THE MOTION FOR JUDICIAL DETERMINATION OF PROBABLE CAUSE PURSUANT TO THE DOCTRINE OF ROBERTS, JR. VI RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC) THE LIFTING/RECALL OF THE HDO AND/OR ALLOWING THE PETITIONER TO TRAVEL TO JAPAN REGULARLY FOR HUMANITARIAN CONSIDERATION VII RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT ISSUED THE QUESTIONED ORDERS18 On January 31, 2001, the CA rendered a Decision19 partially granting the petition in that the assailed order of the trial court denying the petitioners motion to lift/recall the hold departure order was set aside. However, the petitioners motion for reconsideration of the trial courts decision was denied and her petition for the nullification of the August 25, 2000 Order of the respondent judge was dismissed. The CA ruled that by posting bail and praying for reliefs from the trial court, the petitioner waived her right to assail the respondent judges finding of the existence of probable cause. The appellate court cited the ruling of this Court in Cojuangco, Jr. v. Sandiganbayan.20 Thus, the appellate court affirmed the assailed order of the RTC, based on the respondent judges personal examination of respondent Maruyamas affidavit-complaint, the

resolution of the investigating prosecutor and the Information approved by the city prosecutor, a finding of probable cause was in order. However, the appellate court allowed the petitioner to travel to Japan under the following conditions: (1) That petitioner post a bond double the amount of her alleged monetary liability under the Information filed against her, as recommended by the Office of the Solicitor General; (2) That petitioner inform respondent Court of each and all of her travel itinerary prior to leaving the country; (3) That petitioner make periodic reports with respondent Court; (4) That petitioner furnish respondent Court with all the addresses of her possible place of residence, both here and in Japan; and (5) Such other reasonable conditions which respondent Court may deem appropriate under the circumstances.21 The appellate court did not resolve the issue of whether the trial court had prejudged the case and was partial to the prosecution. The decretal portion of the decision of the CA reads: WHEREFORE, premises considered, the instant special civil action for certiorari is hereby PARTIALLY GRANTED insofar as the denial of petitioners Motion to Lift/Recall Hold Departure Order dated 14 July, 2000 and/or Allow the accused to Regularly Travel to Japan is concerned. In all other respect, the same is hereby DENIED. SO ORDERED.22 On March 6, 2001, the petitioner filed a motion for a partial reconsideration of the decision of the CA contending that the appellate court erred in applying the ruling of this court in Cojuangco, Jr. v. Court of Appeals23 instead of Section 26, Rule 114 of the Revised Rules on Criminal Procedure. The petitioner posited that the said rule, which took effect on December 1, 2000, before the court rendered its decision, had superseded the ruling of this Court in the Cojuangco case. However, the appellate court held that Section 26, Rule 114 of the Revised Rules on Criminal Procedure cannot be applied retroactively, because the petitioner had posted bail on June 15, 2000 before the Revised Rules on Criminal Procedure took effect. Hence, the instant petition for review on certiorari for the reversal of the decision and resolution of the CA and praying that after due proceedings, judgment be rendered in her favor, thus: WHEREFORE, it is respectfully prayed of this Honorable Supreme Court that after due proceedings judgment be rendered in favor of the petitioner and against the respondents as follows: (a) GIVING DUE COURSE to the instant petition; (b) ORDERING the REVERSAL and PARTIALLY SETTING ASIDE of the Decision promulgated on 31 January 2001 (Annex "A" hereof) of the Honorable Court of Appeals in CA-G.R. SP No. 60732 as well as its Resolution promulgated on 27 September 2001 (Annex "B" hereof); (c) ORDERING the DISMISSAL of Crim. Case No. 00-0749 for lack of probable cause; (d) DECLARING the entire proceedings in Crim. Case No. 00-0749 as null and void; (e) ORDERING the private respondents to pay the petitioners the following amount: (i) at least P1,000,000.00 as moral damages;

(ii) at least P1,000,000.00 as exemplary damages; (iii) at least P500,000.00 as attorneys fees and for other expenses of litigation. (f) ORDERING the private respondent to pay the costs of this suit. (g) Petitioner further prays for such other reliefs just and equitable under the premises.24 The petitioner asserts that the CA committed the following reversible errors: I THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT COMPLETELY DISREGARDED THE APPLICATION OF SECTION 26, RULE 114 OF THE REVISED RULES ON CRIMINAL PROCEDURE WHICH TOOK EFFECT ON 01 DECEMBER 2000 WHICH IS FAVORABLE TO THE PETITIONER/ACCUSED. II THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN RULING THAT "WHATEVER INFIRMITY THERE WAS IN THE ISSUANCE OF THE WARRANT OF ARREST, THE SAME WAS CURED WHEN PETITIONER VOLUNTARILY SUBMITTED TO THE RESPONDENT COURTS JURISDICTION WHEN SHE POSTED BAIL AND FILED MOTIONS SEEKING AFFIRMATIVE RELIEF SUCH AS MOTION TO LIFT/RECALL HOLD DEPARTURE ORDER AND TO ALLOW PETITIONER TO TRAVEL REGULARLY TO JAPAN (Last paragraph, Page 9 DECISION dated 31 January 2001)." III THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT RELIED UPON THE RULING IN THE CASE OF COJUANGCO, JR. VS. SANDIGANBAYAN, [300 SCRA 367 (1998)] WHEN IN FACT SAID RULING IS NOW OBSOLETE AND NO LONGER APPLICABLE. IV THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN RULING THAT RESPONDENT COURT COMPLIED WITH THE CONSTITUTIONAL REQUIREMENTS ON THE ISSUANCE OF WARRANT OF ARREST WITHOUT PROBABLE CAUSE, WHEN THE RESPONDENT COURT MERELY RELIED ON [THE] (i) COMPLAINT-AFFIDAVIT OF CECILIA MARUYAMA; (ii) RESOLUTION OF THE INVESTIGATING PROSECUTOR; AND (iii) CRIMINAL INFORMATION. V THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT FAILED TO RULE ON THE PARTIALITY OF THE RESPONDENT JUDGE IN HANDLING THE CASE BELOW WHICH IS VIOLATIVE OF THE PETITIONERS RIGHT TO DUE PROCESS. VI THE FILING OF CRIM. CASE NO. 4297 (MTC, ANGAT, BULACAN) FOR ESTAFA ENTITLED "PEOPLE VS. SHEILA OKABE"; CIVIL CASE NO. 331-M-98 (RTC, MALOLOS, BULACAN) FOR SUM OF MONEY WITH PRELIMINARY ATTACHMENT ENTITLED "CONCHITA SANCHEZ-QUICHO VS. SHEILA

TERESITA TANGHAL OKABE"; AND CRIM. CASE NO. 00-07-19 (RTC, PASAY CITY, BRANCH 119) ENTITLED "PEOPLE VS. TERESITA TANGHAL OKABE" CONSTITUTE A VIOLATION OF THE RULE ON NON-FORUM SHOPPING.25 By way of comment, the Office of the Solicitor General refuted the petitioners assigned errors, contending as follows: I The Court of Appeals did not commit a reversible error in not applying Section 26, Rule 114 of the Revised Rules on Criminal Procedure. II The Court of Appeals did not commit a reversible error in ruling that the infirmity, if any, in the issuance by the respondent Judge of the warrant of arrest against petitioner was cured when petitioner voluntarily submitted to the trial courts jurisdiction when she posted bail and filed motions seeking for affirmative reliefs from the trial court, such as the motion to lift/recall Hold Departure Order (HDO) and to allow petitioner to travel regularly to Japan. III The Court of Appeals did not commit a reversible error in applying the ruling in the Cojuangco case. IV The Court of Appeals did not commit a reversible error in finding that respondent Judge complied with the constitutional requirements on the issuance of a warrant of arrest. V The Court of Appeals did not commit a reversible error when it did not rule on the partiality of the respondent Judge in handling Criminal Case No. 00-0749. VI The Honorable Court of Appeals did not commit a reversible error when it did not rule on petitioners claim of forum shopping.26 The Court shall resolve the assigned errors simultaneously as they are interrelated. The petitioner asserts that the respondent judge could not have determined the existence of probable cause for her arrest solely on the resolution of the investigating prosecutor and the undated affidavit-complaint of respondent Maruyama. She posits that the respondent judge should have ordered the investigating prosecutor to submit the affidavits of the witnesses of respondent Maruyama and the latters documentary evidence, as well as the counter-affidavit of the petitioner and the transcripts of the stenographic notes, if any, taken during the preliminary investigation. The petitioner adds that the respondent judge should have personally reviewed the said documents, conformably to the rulings of this Court in Lim v. Felix,27 Roberts, Jr. v. Court of Appeals28 and Ho v. People,29 before determining the presence or absence of probable cause. She posits that the respondent judge acted with grave abuse of discretion amounting to excess or lack of jurisdiction in denying her motion for a determination of probable cause, and the alternative motion for a dismissal of the case against her for lack of probable cause. The petitioner further asserts that the appellate court erred in affirming the ruling of the respondent judge that, by posting a personal bail bond for her provisional liability and by filing several motions for relief, she thereby voluntarily submitted herself to the jurisdiction of the trial court and waived her right to assail the infirmities that infected the trial courts issuance of the warrant for

her arrest. She avers that the appellate courts reliance on the ruling of this Court in Cojuangco, Jr. v. Sandiganbayan30 is misplaced, and submits that the appellate court should have applied Section 26, Rule 114 of the Revised Rules of Court retroactively, as it rendered the ruling of this Court in the Cojuangco, Jr. case obsolete. The Office of the Solicitor General, on the other hand, asserts that the respondent judge did not commit any grave abuse of discretion when he found probable cause against the petitioner for estafa, and thereafter issued a warrant for her arrest. It argues that the respondent judge personally determined the existence of probable cause independently of the certification of the investigating prosecutor, and only after examining the Information, the resolution of the investigating prosecutor, as well as the affidavit-complaint of the private complainant. It asserts that such documents are sufficient on which to anchor a finding of probable cause. It insists that the appellate court correctly applied the ruling of this Court in the Cojuangco, Jr. v. Court of Appeals case, and that the respondent judge complied with both the requirements of the constitution and those set forth in the Rules of Court before issuing the said warrant.31 We agree with the contention of the petitioner that the appellate court erred in not applying Section 26, Rule 114 of the Revised Rules on Criminal Procedure, viz: SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case. It bears stressing that Section 26, Rule 114 of the Revised Rules on Criminal Procedure is a new one, intended to modify previous rulings of this Court that an application for bail or the admission to bail by the accused shall be considered as a waiver of his right to assail the warrant issued for his arrest on the legalities or irregularities thereon.32 The new rule has reverted to the ruling of this Court in People v. Red.33 The new rule is curative in nature because precisely, it was designed to supply defects and curb evils in procedural rules. Hence, the rules governing curative statutes are applicable. Curative statutes are by their essence retroactive in application.34 Besides, procedural rules as a general rule operate retroactively, even without express provisions to that effect, to cases pending at the time of their effectivity, in other words to actions yet undetermined at the time of their effectivity.35 Before the appellate court rendered its decision on January 31, 2001, the Revised Rules on Criminal Procedure was already in effect. It behooved the appellate court to have applied the same in resolving the petitioners petition for certiorari and her motion for partial reconsideration. Moreover, considering the conduct of the petitioner after posting her personal bail bond, it cannot be argued that she waived her right to question the finding of probable cause and to assail the warrant of arrest issued against her by the respondent judge. There must be clear and convincing proof that the petitioner had an actual intention to relinquish her right to question the existence of probable cause.36 When the only proof of intention rests on what a party does, his act should be so manifestly consistent with, and indicative of, an intent to voluntarily and unequivocally relinquish the particular right that no other explanation of his conduct is possible.37 In this case, the records show that a warrant was issued by the respondent judge in Pasay City for the arrest of the petitioner, a resident of Guiguinto, Bulacan. When the petitioner learned of the issuance of the said

warrant, she posted a personal bail bond to avert her arrest and secure her provisional liberty. Judge Demetrio B. Macapagal of the RTC of Quezon City approved the bond and issued an order recalling the warrant of arrest against the petitioner. Thus, the posting of a personal bail bond was a matter of imperative necessity to avert her incarceration; it should not be deemed as a waiver of her right to assail her arrest. So this Court ruled in People v. Red:38 The present defendants were arrested towards the end of January, 1929, on the Island and Province of Marinduque by order of the judge of the Court of First Instance of Lucena, Tayabas, at a time when there were no court sessions being held in Marinduque. In view of these circumstances and the number of the accused, it may properly be held that the furnishing of the bond was prompted by the sheer necessity of not remaining in detention, and in no way implied their waiver of any right, such as the summary examination of the case before their detention. That they had no intention of waiving this right is clear from their motion of January 23, 1929, the same day on which they furnished a bond, and the fact that they renewed this petition on February 23, 1929, praying for the stay of their arrest for lack of the summary examination; the first motion being denied by the court on January 24, 1929 (G.R. No. 33708, page 8), and the second remaining undecided, but with an order to have it presented in Boac, Marinduque. Therefore, the defendants herein cannot be said to have waived the right granted to them by section 13, General Order No. 58, as amended by Act No. 3042.39 Moreover, the next day, or on June 16, 2000, the petitioner, through counsel, received certified true copies of the Information, the resolution of the investigating prosecutor, the affidavitcomplaint of the private complainant, respondent Maruyama, and a certification from the branch clerk of court that only the Information, resolution and affidavit-complaint formed part of the entire records of the case. The next day, June 17, 2000, the petitioner, through counsel, filed a verified motion for judicial determination of probable cause and to defer the proceedings and her arraignment. All the foregoing are inconsistent with a waiver of her right to assail the validity of her arrest and to question the respondent judges determination of the existence of probable cause for her arrest. Neither can the petitioners filing of a motion for the lifting of the hold departure order and for leave to go to Japan be considered a waiver of her right to assail the validity of the arrest warrant issued by the respondent judge. It bears stressing that when the petitioner filed the motion to lift the hold departure order issued against her by the respondent judge, her motion for a determination of probable cause was still unresolved. She sought a lifting of the hold departure order on July 14, 2000 and filed a motion for leave to go to Japan, to give the respondent judge an opportunity to reconsider the said order, preparatory to assailing the same in the appellate court in case her motion was denied. The issue that now comes to fore is whether or not the respondent judge committed a grave abuse of his discretion amounting to excess or lack of jurisdiction in issuing his August 25, 2000 Order. By grave abuse of discretion is meant such patent and gross abuse of discretion as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reasons of passion or personal hostility.40 Hence, when the court has jurisdiction over the case, its questioned acts, even if its findings are not correct, would at most constitute errors of law and not abuse of discretion correctible by the extraordinary remedy of certiorari.41

We agree with the petitioner that before the RTC judge issues a warrant of arrest under Section 6, Rule 112 of the Rules of Court42 in relation to Section 2, Article III of the 1987 Constitution, the judge must make a personal determination of the existence or non-existence of probable cause for the arrest of the accused. The duty to make such determination is personal and exclusive to the issuing judge. He cannot abdicate his duty and rely on the certification of the investigating prosecutor that he had conducted a preliminary investigation in accordance with law and the Rules of Court, as amended, and found probable cause for the filing of the Information. Under Section 1, Rule 112 of the Rules on Criminal Procedure, the investigating prosecutor, in conducting a preliminary investigation of a case cognizable by the RTC, is tasked to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent therein is probably guilty thereof and should be held for trial. A preliminary investigation is for the purpose of securing the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense and anxiety of a public trial.43 If the investigating prosecutor finds probable cause for the filing of the Information against the respondent, he executes a certification at the bottom of the Information that from the evidence presented, there is a reasonable ground to believe that the offense charged has been committed and that the accused is probably guilty thereof. Such certification of the investigating prosecutor is, by itself, ineffective. It is not binding on the trial court. Nor may the RTC rely on the said certification as basis for a finding of the existence of probable cause for the arrest of the accused.44 In contrast, the task of the presiding judge when the Information is filed with the court is first and foremost to determine the existence or non-existence of probable cause for the arrest of the accused. Probable cause is meant such set of facts and circumstances which would lead a reasonably discreet and prudent man to believe that the offense charged in the Information or any offense included therein has been committed by the person sought to be arrested.45 In determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense.46 A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and that it was committed by the accused. Probable cause demands more than bare suspicion, it requires less than evidence which would justify conviction.47 The purpose of the mandate of the judge to first determine probable cause for the arrest of the accused is to insulate from the very start those falsely charged of crimes from the tribulations, expenses and anxiety of a public trial: It must be stressed, however, that in these exceptional cases, the Court took the extraordinary step of annulling findings of probable cause either to prevent the misuse of the strong arm of the law or to protect the orderly administration of justice. The constitutional duty of this Court in criminal litigations is not only to acquit the innocent after trial but to insulate, from the start, the innocent from unfounded charges. For the Court is aware of the strains of a criminal accusation and the stresses of litigation which should not be suffered by the clearly innocent. The filing of an unfounded criminal information in court exposes the innocent to severe distress especially when the crime is not bailable. Even an acquittal of the innocent will not fully bleach the dark and deep stains left by a baseless accusation for reputation once tarnished remains tarnished for a

long length of time. The expense to establish innocence may also be prohibitive and can be more punishing especially to the poor and the powerless. Innocence ought to be enough and the business of this Court is to shield the innocent from senseless suits right from the start.48 In determining the existence or non-existence of probable cause for the arrest of the accused, the RTC judge may rely on the findings and conclusions in the resolution of the investigating prosecutor finding probable cause for the filing of the Information. After all, as the Court held in Webb v. De Leon,49 the judge just personally reviews the initial determination of the investigating prosecutor finding a probable cause to see if it is supported by substantial evidence.50 However, in determining the existence or non-existence of probable cause for the arrest of the accused, the judge should not rely solely on the said report.51 The judge should consider not only the report of the investigating prosecutor but also the affidavit/affidavits and the documentary evidence of the parties, the counter-affidavit of the accused and his witnesses, as well as the transcript of stenographic notes taken during the preliminary investigation, if any, submitted to the court by the investigating prosecutor upon the filing of the Information.52 Indeed, in Ho v. People,53 this Court held that: Lastly, it is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutors recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties and functions, which in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or the report of the investigating officer.54 The rulings of this Court are now embedded in Section 8(a), Rule 112 of the Revised Rules on Criminal Procedure which provides that an Information or complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other supporting evidence of the resolution: SEC. 8. Records. (a) Records supporting the information or complaint. An information or complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other supporting evidence and the resolution on the case. If the judge is able to determine the existence or non-existence of probable cause on the basis of the records submitted by the investigating prosecutor, there would no longer be a need to order the elevation of the rest of the records of the case. However, if the judge finds the records and/or evidence submitted by the investigating prosecutor to be insufficient, he may order the dismissal of the case, or direct the investigating prosecutor either to submit more evidence or to submit the

entire records of the preliminary investigation, to enable him to discharge his duty.55 The judge may even call the complainant and his witness to themselves answer the courts probing questions to determine the existence of probable cause.56 The rulings of this Court in Soliven v. Makasiar57 and Lim v. Felix58 are now embodied in Section 6, Rule 112 of the Revised Rules on Criminal Procedure, with modifications, viz: SEC. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information. In this case, the investigating prosecutor submitted to the respondent judge only his resolution after his preliminary investigation of the case and the affidavit-complaint of the private complainant, and failed to include the affidavits of the witnesses of the private complainant, and the latters reply affidavit, the counter-affidavit of the petitioner, as well as the evidence adduced by the private complainant as required by case law, and now by Section 8(a), Rule 112 of the Revised Rules on Criminal Procedure. The aforecited affidavits, more specifically the fax message of Lorna Tanghal and the document signed by her covering the amount of US$1,000, are of vital importance, as they would enable the respondent judge to properly determine the existence or nonexistence of probable cause. First. When respondent Maruyama handed the money to the petitioner, she did not require the latter to sign a document acknowledging receipt of the amount. The petitioner avers that it is incredible that Maruyama would entrust P3,993,500 in Japanese Yen to her without even requiring her to sign a receipt therefor, especially since respondent Maruyama was not even the owner of the money; Second. The affidavit of Hermogena Santiago, a witness of the respondent, is unreliable, because it is based on information relayed to her by Lorna Tanghal that she (Tanghal) saw the petitioner carrying a Louis Vuitton bag while on board a Mitsubishi L300 van with the petitioner. It appears that Tanghal failed to submit any counter-affidavit to the investigating prosecutor; Third. The affidavit of Marilette G. Izumiya, another witness of the respondent, is also unreliable, as it was based on information relayed to her by Thelma Barbiran, who used to work for the petitioner as a housemaid, that she (Barbiran) had in her possession a fax message from Lorna Tanghal, implicating the petitioner in the crime charged. Barbiran did not execute any affidavit; Fourth. There is no indication in the resolution of the investigating prosecutor that the petitioner received the fax message of Lorna Tanghal; Fifth. The private complainant claims that the petitioner tried to reimburse the P3,993,500 by remitting US$1,000 to her. However, the latter admitted in her affidavit-complaint that the document evidencing the remittance was signed by Lorna Tanghal, not by the petitioner. The petitioner claimed that Lorna Tanghal had to remit US$1,000 to respondent Maruyama because the

latter made it appear to Tanghal that the police authorities were about to arrest the petitioner, and Tanghal was impelled to give the amount to respondent Maruyama to avert her arrest and incarceration; Sixth. In her counter-affidavit, the petitioner alleged that respondent Maruyama had no case against her because the crime charged in the latters affidavit-complaint was the same as that filed against her in the Metropolitan Trial Court of Bulacan, which was withdrawn by the complainant herself; Seventh. The investigating prosecutor stated in his resolution that the private complainant established the element of deceit. However, the crime charged against the petitioner as alleged in the Information is estafa with abuse of confidence. In sum, then, we find and so declare that the respondent judge committed a grave abuse of his discretion amounting to excess or lack of jurisdiction in finding probable cause for the petitioners arrest in the absence of copies of the affidavits of the witnesses of the private complainant and her reply affidavit, the counter-affidavit of the petitioner, and the evidence adduced during the preliminary investigation before the investigating prosecutor. In view of the foregoing disquisitions, there is no more need to resolve the other issues raised by the petitioner. IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed decision of the Court of Appeals is REVERSED and SET ASIDE. The assailed Orders dated August 25 and 28, 2000 and the Warrant of Arrest issued by the respondent judge in Criminal Case No. 00-0749 are SET ASIDE. The records are REMANDED to the Regional Trial Court of Pasay City, Branch 119. The respondent judge is hereby DIRECTED to determine the existence or non-existence of probable cause for the arrest of the petitioner based on the complete records, as required under Section 8(a), Rule 112 of the Revised Rules on Criminal Procedure. SO ORDERED. Constitutional Law II - Book 2005 - Bache & Co. (Phil.) Inc. vs. Ruiz [GR L-32409, 27 February 1971] Bache & Co. (Phil.) Inc. vs. Ruiz [GR L-32409, 27 February 1971] En Banc, Villamor (J): 7 concur, 1 filed a separate concurring opinion to which 1 concurs, 1 concurs in result Facts: On 24 February 1970, Misael P. Vera, Commissioner of Internal Revenue, wrote a letter addressed to Judge Vivencio M. Ruiz requesting the issuance of a search warrant against Bache & Co. (Phil.), Inc. and Frederick E. Seggerman for violation of Section 46(a) of the National Internal Revenue Code (NIRC), in relation to all other pertinent provisions thereof, particularly Sections 53, 72, 73, 208 and 209, and authorizing Revenue Examiner Rodolfo de Leon to make and file the application for search warrant which was attached to the letter. In the afternoon of the following day, De Leon and his witness, Arturo Logronio, went to the Court of First Instance (CFI) of Rizal. They brought with them the following papers: Veras letter-request; an application for search warrant already filled up but still unsigned by De Leon; an affidavit of Logronio subscribed before De Leon; a deposition in printed form of Logronio already accomplished and signed by him but not yet subscribed; and a search warrant already accomplished but still unsigned by Judge.

At that time the Judge was hearing a certain case; so, by means of a note, he instructed his Deputy Clerk of Court to take the depositions of De Leon and Logronio. After the session had adjourned, the Judge was informed that the depositions had already been taken. The stenographer, upon request of the Judge, read to him her stenographic notes; and thereafter, the Judge asked Logronio to take the oath and warned him that if his deposition was found to be false and without legal basis, he could be charged for perjury. The Judge signed de Leons application for search warrant and Logronios deposition. Search Warrant 2-M-70 was then signed by Judge and accordingly issued. 3 days later (a Saturday), the BIR agents served the search warrant to the corporation and Seggerman at the offices of the corporation on Ayala Avenue, Makati, Rizal. The corporations lawyers protested the search on the ground that no formal complaint or transcript of testimony was attached to the warrant. The agents nevertheless proceeded with their search which yielded 6 boxes of documents. On 3 March 1970, the corporation and Seggerman filed a petition with the Court of First Instance (CFI) of Rizal praying that the search warrant be quashed, dissolved or recalled, that preliminary prohibitory and mandatory writs of injunction be issued, that the search warrant be declared null and void, and that Vera, Logronio, de Leon, et. al., be ordered to pay the corporation and Seggerman, jointly and severally, damages and attorneys fees. After hearing and on 29 July 1970, the court issued an order dismissing the petition for dissolution of the search warrant. In the meantime, or on 16 April 1970, the Bureau of Internal Revenue made tax assessments on the corporation in the total sum of P2,594,729.97, partly, if not entirely, based on the documents thus seized. The corporation and Seggerman filed an action for certiorari, prohibition, and mandamus. Issue: Whether the corporation has the right to contest the legality of the seizure of documents from its office. Held: The legality of a seizure can be contested only by the party whose rights have been impaired thereby, and that the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties. In Stonehill, et al. vs. Diokno, et al. (GR L-19550, 19 June 1967; 20 SCRA 383) the Supreme Court impliedly recognized the right of a corporation to object against unreasonable searches and seizures; holding that the corporations have their respective personalities, separate and distinct from the personality of the corporate officers, regardless of the amount of shares of stock or the interest of each of them in said corporations, whatever, the offices they hold therein may be; and that the corporate officers therefore may not validly object to the use in evidence against them of the documents, papers and things seized from the offices and premises of the corporations, since the right to object to the admission of said papers in evidence belongs exclusively to the corporations, to whom the seized effects belong, and may not be invoked by the corporate officers in proceedings against them in their individual capacity. The distinction between the Stonehill case and the present case is that: in the former case, only the officers of the various corporations in whose offices documents, papers and effects were searched and seized were the petitioners; while in the latter, the corporation to whom the seized

documents belong, and whose rights have thereby been impaired, is itself a petitioner. On that score, the corporation herein stands on a different footing from the corporations in Stonehill. Moreover, herein, the search warrant was void inasmuch as First, there was no personal examination conducted by the Judge of the complainant (De Leon) and his witness (Logronio). The Judge did not ask either of the two any question the answer to which could possibly be the basis for determining whether or not there was probable cause against Bache & Co. and Seggerman. The participation of the Judge in the proceedings which led to the issuance of Search Warrant 2-M-70 was thus limited to listening to the stenographers readings of her notes, to a few words of warning against the commission of perjury, and to administering the oath to the complainant and his witness. This cannot be consider a personal examination. Second, the search warrant was issued for more than one specific offense. The search warrant was issued for at least 4 distinct offenses under the Tax Code. The first is the violation of Section 46(a), Section 72 and Section 73 (the filing of income tax returns), which are interrelated. The second is the violation of Section 53 (withholding of income taxes at source). The third is the violation of Section 208 (unlawful pursuit of business or occupation); and the fourth is the violation of Section 209 (failure to make a return of receipts, sales, business or gross value of output actually removed or to pay the tax due thereon). Even in their classification the 6 provisions are embraced in 2 different titles: Sections 46(a), 53, 72 and 73 are under Title II (Income Tax); while Sections 208 and 209 are under Title V (Privilege Tax on Business and Occupation). Lastly, the search warrant does not particularly describe the things to be seized. Search Warrant No. 2-M-70 tends to defeat the major objective of the Bill of Rights, i.e., the elimination of general warrants, for the language used therein is so all-embracing as to include all conceivable records of the corporation, which, if seized, could possibly render its business inoperative. Thus, Search Warrant 2-M-70 is null and void. Roan v. Gonzales, 145 SCRA 687 (1986) F: The challenged SW was issued by the resp. judge on 5/10/84. The petitioner''s house was searched 2 days later but none of the articles listed in the warrant was discovered. The officers conducting the search found 1 colt Magnum revolver & 18 live bullets w/c they confiscated. They are now the bases of the charge against the petitioner. RULING: Search warrant issued by resp. judge is hereby declared null and void and accordingly set aside. The petitioner claims that no depositions were taken by the resp. judge in accordance w/ Rule 126, Sec. 4 of the ROC, but this is not entirely true. Depositions were taken of the complainant''s 2 witnesses in addition to the affidavit executed by them. It is correct to say, however, that the complainant himself was not subjected to a similar interrogation. By his own accounts, all that resp. judge did was question Capt. Quillosa on the contents of his affidavit only "to ascertain among others, if he knew and understood the same," and only bec. "the application was not yet subscribed and sworn to." The suggestion is that he would not have asked any questions at all if the affidavit had already been completed when it was submitted to him. In any case, he did not ask his own searching questions. He limited himself to the contents of the affidavit. He did not take the applicant''s deposition in writing and attach them to the record, together w/ the affidavit presented to him. 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. (Mata v. Bayona.) The applicant was asking for the issuance of the SW on the basis of mere hearsay and not of info. personally known to him. His application, standing alone, was insufficient to justify the issuance of the warrant sought. It was, therefore, necessary for the witnesses themselves, by their own personal info., to establish the applicant''s claims. Even assuming then that it would have suffied to take the deposition only of the witnesses and not of the applicant himself, there is still the question of the sufficiency of their depositions. A study of the deposition taken from witnesess Esmael Morada and Jesus Tohilida, who both claimed to be "intelligence informers," shows that they were in the main a mere restatement of their allegations in their affidavits, except that they were made in the form of answers to the questions put to them by the resp. judge. One may well wonder why it did not occur to the resp. judge to ask how the witness could be so certain even as to the caliber of the guns, or how far he was from the window, or whether it was on the first floor or second floor, or why his presence was not noticed at all, or if the acts related were really done openly, in the full view of the witnesses, considering that these acts were against the law. These would have been judicious questions but they were injudiciously omitted. Instead, the declaration of the witnesses were readily accepted and the warrant sought was issued forthwith. SOL-GEN ARGUES THAT THE PETITIONER WAIVED WHATEVER DEFECT WHEN THE PETITIONER VOLUNTARILY SUBMITTED TO THE SEARCH AND MANIFESTED HIS CONFORMITY IN WRITING. We do not agree. What we see here is pressure exerted by the military authorities, who practically coerced the petitioner to sign the supposed waiver as guaran Alvarez vs. Court of First Instance of Tayabas [GR 45358, 29 January 1937] First Division, Imperial (J): 4 concur Facts: On 3 June 1936, the chief of the secret service of the Anti-Usury Board, of the Department of Justice, presented to Judge Eduardo Gutierrez David then presiding over the Court of First Instance of Tayabas, an affidavit alleging that according to reliable information, Narciso Alvarez kept in his house in Infanta, Tayabas, books, documents, receipts, lists, chits and other papers used by him in connection with his activities as a moneylender, charging usurious rates of interest in violation of the law. In his oath at the end of the affidavit, the chief of the secret service stated that his answers to the questions were correct to the best of his knowledge and belief. He did not swear to the truth of his statements upon his own knowledge of the facts but upon the information received by him from a reliable person. Upon the affidavit the judge, on said date, issued the warrant which is the subject matter of the petition, ordering the search of the Alvarezs house at any time of the day or night, the seizure of the books and documents and the immediate delivery thereof to him to be disposed of in accordance with the law. With said warrant, several agents of the Anti-Usury Board entered Alvarezs store and residence at 7:00 p.m. of 4 June 1936, and seized and took possession of the following articles: internal revenue licenses for the years 1933 to 1936, 1 ledger, 2 journals, 2 cashbooks, 9 order books, 4 notebooks, 4 check stubs, 2 memorandums, 3 bankbooks, 2 contracts, 4 stubs, 48 stubs of purchases of copra, 2 inventories, 2 bundles of bills of lading, 1 bundle of credit receipts, 1 bundle of stubs of purchases of copra, 2 packages of correspondence, 1 receipt book belonging to Luis Fernandez, 14 bundles of invoices and other papers, many documents and loan contracts with security and promissory notes, 504 chits, promissory notes and stubs of used checks of the Hongkong & Shanghai Banking Corporation (HSBC). The search for and seizure of said articles were made with the opposition of

Alvarez who stated his protest below the inventories on the ground that the agents seized even the originals of the documents. As the articles had not been brought immediately to the judge who issued the search warrant, Alvarez, through his attorney, filed a motion on 8 June 1936, praying that the agent Emilio L. Siongco, or any other agent, be ordered immediately to deposit all the seized articles in the office of the clerk of court and that said agent be declared guilty of contempt for having disobeyed the order of the court. On said date the court issued an order directing Siongco to deposit all the articles seized within 24 hours from the receipt of notice thereof and giving him a period of 5 days within which to show cause why he should not be punished for contempt of court. On 10 June, Attorney Arsenio Rodriguez, representing the Anti-Usury Board, filed a motion praying that the order of the 8th of said month be set aside and that the Anti-Usury Board be authorized to retain the articles seized for a period of 30 days for the necessary investigation. On June 25, the court issued an order requiring agent Siongco forthwith to file the search warrant and the affidavit in the court, together with the proceedings taken by him, and to present an inventory duly verified by oath of all the articles seized. On July 2, the attorney for the petitioner filed a petition alleging that the search warrant issued was illegal and that it had not yet been returned to date together with the proceedings taken in connection therewith, and praying that said warrant be cancelled, that an order be issued directing the return of all the articles seized to Alvarez, that the agent who seized them be declared guilty of contempt of court, and that charges be filed against him for abuse of authority. On September 10, the court issued an order holding: that the search warrant was obtained and issued in accordance with the law, that it had been duly complied with and, consequently, should not be cancelled, and that agent Siongco did not commit any contempt of court and must, therefore, be exonerated, and ordering the chief of the Anti-Usury Board in Manila to show cause, if any, within the unextendible period of 2 days from the date of notice of said order, why all the articles seized appearing in the inventory should not be returned to Alvarez. The assistant chief of the Anti-Usury Board of the Department of Justice filed a motion praying, for the reasons stated therein, that the articles seized be ordered retained for the purpose of conducting an investigation of the violation of the Anti-Usury Law committed by Alvarez. On October 10, said official again filed another motion alleging that he needed 60 days to examine the documents and papers seized, which are designated on pages 1 to 4 of the inventory by Nos. 5, 10, 16, 23, 25-27, 30-31 , 34, 36-43 and 45, and praying that he be granted said period of 60 days. In an order of October 16, the court granted him the period of 60 days to investigate said 19 documents. Alvarez, herein, asks that the search warrant as well as the order authorizing the agents of the Anti-Usury Board to retain the articles seized, be declared illegal and set aside, and prays that all the articles in question be returned to him. Issue: Whether the search warrant issued by the court is illegal because it has been based upon the affidavit of agent Almeda in whose oath he declared that he had no personal knowledge of the facts which were to serve as a basis for the issuance of the warrant but that he had knowledge thereof through mere information secured from a person whom he considered reliable, and that it is illegal as it was not supported by other affidavits aside from that made by the applicant. Held: Section 1, paragraph 3, of Article III of the Constitution and Section 97 of General Orders 58 require that there be not only probable cause before the issuance of a search warrant but that the search warrant must be based upon an application supported by oath of the applicant and the witnesses he may produce. In its broadest sense, an oath includes any form of attestation by which a party signifies that he is bound in conscience to perform an act faithfully and truthfully; and it is

sometimes defined as an outward pledge given by the person taking it that his attestation or promise is made under an immediate sense of his responsibility to God. 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. The true test of sufficiency of an 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. The affidavit, which served as the exclusive basis of the search warrant, is insufficient and fatally defective by reason of the manner in which the oath was made, and therefore, the search warrant and the subsequent seizure of the books, documents and other papers are illegal. Further, it is the practice in this jurisdiction to attach the affidavit of at least the applicant or complainant to the application. It is admitted that the judge who issued the search warrant in this case, relied exclusively upon the affidavit made by agent Almeda and that he did not require nor take the deposition of any other witness. Neither the Constitution nor General Orders 58 provides that it is of imperative necessity to take the depositions of the witnesses to be presented by the applicant or complainant in addition to the affidavit of the latter. The purpose of both in requiring the presentation of depositions is nothing more than to satisfy the committing magistrate of the existence of probable cause. Therefore, if the affidavit of the applicant or complainant is sufficient, the judge may dispense with that of other witnesses. Inasmuch as the affidavit of the agent was insufficient because his knowledge of the facts was not personal but merely hearsay, it is the duty of the judge to require the affidavit of one or more witnesses for the purpose of determining the existence of probable cause to warrant the issuance of the search warrant. When the affidavit of the applicant or complainant contains sufficient facts within his personal and direct knowledge, it is sufficient if the judge is satisfied that there exists probable cause; when the applicants knowledge of the facts is mere hearsay, the affidavit of one or more witnesses having a personal knowledge of the facts is necessary. Thus the warrant issued is likewise illegal because it was based only on the affidavit of the agent who had no personal knowledge of the facts. G.R. No. 140946 September 13, 2004 MICROSOFT CORPORATION and LOTUS DEVELOPMENT CORPORATION, petitioners, vs. MAXICORP, INC., respondent. DECISION CARPIO, J.: The Case This petition for review on certiorari1 seeks to reverse the Court of Appeals Decision2 dated 23 December 1998 and its Resolution dated 29 November 1999 in CA-G.R. SP No. 44777. The Court of Appeals reversed the Order3 of the Regional Trial Court, Branch 23, Manila ("RTC"), denying respondent Maxicorp, Inc.s ("Maxicorp") motion to quash the search warrant that the RTC issued against Maxicorp. Petitioners are the private complainants against Maxicorp for copyright infringement under Section 29 of Presidential Decree No. 49 ("Section 29 of PD 49")4 and for unfair competition under Article 189 of the Revised Penal Code ("RPC").5

Antecedent Facts On 25 July 1996, National Bureau of Investigation ("NBI") Agent Dominador Samiano, Jr. ("NBI Agent Samiano") filed several applications for search warrants in the RTC against Maxicorp for alleged violation of Section 29 of PD 49 and Article 189 of the RPC. After conducting a preliminary examination of the applicant and his witnesses, Judge William M. Bayhon issued Search Warrants Nos. 96-451, 96-452, 96-453 and 96-454, all dated 25 July 1996, against Maxicorp. Armed with the search warrants, NBI agents conducted on 25 July 1996 a search of Maxicorps premises and seized property fitting the description stated in the search warrants. On 2 September 1996, Maxicorp filed a motion to quash the search warrants alleging that there was no probable cause for their issuance and that the warrants are in the form of "general warrants." The RTC denied Maxicorps motion on 22 January 1997. The RTC also denied Maxicorps motion for reconsideration. The RTC found probable cause to issue the search warrants after examining NBI Agent Samiano, John Benedict Sacriz ("Sacriz"), and computer technician Felixberto Pante ("Pante"). The three testified on what they discovered during their respective visits to Maxicorp. NBI Agent Samiano also presented certifications from petitioners that they have not authorized Maxicorp to perform the witnessed activities using petitioners products. On 24 July 1997, Maxicorp filed a petition for certiorari with the Court of Appeals seeking to set aside the RTCs order. On 23 December 1998, the Court of Appeals reversed the RTCs order denying Maxicorps motion to quash the search warrants. Petitioners moved for reconsideration. The Court of Appeals denied petitioners motion on 29 November 1999. The Court of Appeals held that NBI Agent Samiano failed to present during the preliminary examination conclusive evidence that Maxicorp produced or sold the counterfeit products. The Court of Appeals pointed out that the sales receipt NBI Agent Samiano presented as evidence that he bought the products from Maxicorp was in the name of a certain "Joel Diaz." Hence, this petition. The Issues Petitioners seek a reversal and raise the following issues for resolution: 1. WHETHER THE PETITION RAISES QUESTIONS OF LAW; 2. WHETHER PETITIONERS HAVE LEGAL PERSONALITY TO FILE THE PETITION; 3. WHETHER THERE WAS PROBABLE CAUSE TO ISSUE THE SEARCH WARRANTS; 4. WHETHER THE SEARCH WARRANTS ARE "GENERAL WARRANTS." The Ruling of the Court The petition has merit. On Whether the Petition Raises Questions of Law Maxicorp assails this petition as defective since it failed to raise questions of law. Maxicorp insists that the arguments petitioners presented are questions of fact, which this Court should not consider in a Rule 45 petition for review. Petitioners counter that all the issues they presented in this petition involve questions of law. Petitioners point out that the facts are not in dispute. A petition for review under Rule 45 of the Rules of Court should cover questions of law.6 Questions of fact are not reviewable. As a rule, the findings of fact of the Court of Appeals are

final and conclusive and this Court will not review them on appeal,7 subject to exceptions as when the findings of the appellate court conflict with the findings of the trial court.8 The distinction between questions of law and questions of fact is settled. A question of law exists when the doubt or difference centers on what the law is on a certain state of facts. A question of fact exists if the doubt centers on the truth or falsity of the alleged facts. Though this delineation seems simple, determining the true nature and extent of the distinction is sometimes problematic. For example, it is incorrect to presume that all cases where the facts are not in dispute automatically involve purely questions of law. There is a question of law if the issue raised is capable of being resolved without need of reviewing the probative value of the evidence.9 The resolution of the issue must rest solely on what the law provides on the given set of circumstances. Once it is clear that the issue invites a review of the evidence presented, the question posed is one of fact.10 If the query requires a re-evaluation of the credibility of witnesses, or the existence or relevance of surrounding circumstances and their relation to each other, the issue in that query is factual.11 Our ruling in Paterno v. Paterno12 is illustrative on this point: Such questions as whether certain items of evidence should be accorded probative value or weight, or rejected as feeble or spurious, or whether or not the proofs on one side or the other are clear and convincing and adequate to establish a proposition in issue, are without doubt questions of fact. Whether or not the body of proofs presented by a party, weighed and analyzed in relation to contrary evidence submitted by adverse party, may be said to be strong, clear and convincing; whether or not certain documents presented by one side should be accorded full faith and credit in the face of protests as to their spurious character by the other side; whether or not inconsistencies in the body of proofs of a party are of such gravity as to justify refusing to give said proofs weight all these are issues of fact. It is true that Maxicorp did not contest the facts alleged by petitioners. But this situation does not automatically transform all issues raised in the petition into questions of law. The issues must meet the tests outlined in Paterno. Of the three main issues raised in this petition the legal personality of the petitioners, the nature of the warrants issued and the presence of probable cause only the first two qualify as questions of law. The pivotal issue of whether there was probable cause to issue the search warrants is a question of fact. At first glance, this issue appears to involve a question of law since it does not concern itself with the truth or falsity of certain facts. Still, the resolution of this issue would require this Court to inquire into the probative value of the evidence presented before the RTC. For a question to be one of law, it must not involve an examination of the probative value of the evidence presented by the litigants or any of them.13 Yet, this is precisely what the petitioners ask us to do by raising arguments requiring an examination of the TSNs and the documentary evidence presented during the search warrant proceedings. In short, petitioners would have us substitute our own judgment to that of the RTC and the Court of Appeals by conducting our own evaluation of the evidence. This is exactly the situation which Section 1, Rule 45 of the Rules of Court prohibits by requiring the petition to raise only questions of law. This Court is not a trier of facts. It is not the function of this court to analyze or weigh evidence.14 When we give due course to such situations, it is solely by way of exception. Such exceptions apply only in the presence of extremely meritorious circumstances.15

Indeed, this case falls under one of the exceptions because the findings of the Court of Appeals conflict with the findings of the RTC.16 Since petitioners properly raised the conflicting findings of the lower courts, it is proper for this Court to resolve such contradiction. On Whether Petitioners have the Legal Personality to File this Petition Maxicorp argues that petitioners have no legal personality to file this petition since the proper party to do so in a criminal case is the Office of the Solicitor General as representative of the People of the Philippines. Maxicorp states the general rule but the exception governs this case.17 We ruled in Columbia Pictures Entertainment, Inc. v. Court of Appeals18 that the petitionercomplainant in a petition for review under Rule 45 could argue its case before this Court in lieu of the Solicitor General if there is grave error committed by the lower court or lack of due process. This avoids a situation where a complainant who actively participated in the prosecution of a case would suddenly find itself powerless to pursue a remedy due to circumstances beyond its control. The circumstances in Columbia Pictures Entertainment are sufficiently similar to the present case to warrant the application of this doctrine. On Whether there was Probable Cause to Issue the Search Warrants Petitioners argue that the Court of Appeals erred in reversing the RTC based on the fact that the sales receipt was not in the name of NBI Agent Samiano. Petitioners point out that the Court of Appeals disregarded the overwhelming evidence that the RTC considered in determining the existence of probable cause. Maxicorp counters that the Court of Appeals did not err in reversing the RTC. Maxicorp maintains that the entire preliminary examination that the RTC conducted was defective. The Court of Appeals based its reversal on two factual findings of the RTC. First, the fact that the sales receipt presented by NBI Agent Samiano as proof that he bought counterfeit goods from Maxicorp was in the name of a certain "Joel Diaz." Second, the fact that petitioners other witness, John Benedict Sacriz, admitted that he did not buy counterfeit goods from Maxicorp. We rule that the Court of Appeals erred in reversing the RTCs findings. Probable cause means "such reasons, supported by facts and circumstances as will warrant a cautious man in the belief that his action and the means taken in prosecuting it are legally just and proper."19 Thus, probable cause for a search warrant requires such facts and circumstances that would lead a reasonably prudent man to believe that an offense has been committed and the objects sought in connection with that offense are in the place to be searched.20 The judge determining probable cause must do so only after personally examining under oath the complainant and his witnesses. 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."21 The applicant must have personal knowledge of the circumstances. "Reliable information" is insufficient.22 Mere affidavits are not enough, and the judge must depose in writing the complainant and his witnesses.23 The Court of Appeals reversal of the findings of the RTC centers on the fact that the two witnesses for petitioners during the preliminary examination failed to prove conclusively that they bought counterfeit software from Maxicorp. The Court of Appeals ruled that this amounted to a failure to prove the existence of a connection between the offense charged and the place searched. The offense charged against Maxicorp is copyright infringement under Section 29 of PD 49 and unfair competition under Article 189 of the RPC. To support these charges, petitioners presented

the testimonies of NBI Agent Samiano, computer technician Pante, and Sacriz, a civilian. The offenses that petitioners charged Maxicorp contemplate several overt acts. The sale of counterfeit products is but one of these acts. Both NBI Agent Samiano and Sacriz related to the RTC how they personally saw Maxicorp commit acts of infringement and unfair competition. During the preliminary examination, the RTC subjected the testimonies of the witnesses to the requisite examination. NBI Agent Samiano testified that he saw Maxicorp display and offer for sale counterfeit software in its premises. He also saw how the counterfeit software were produced and packaged within Maxicorps premises. NBI Agent Samiano categorically stated that he was certain the products were counterfeit because Maxicorp sold them to its customers without giving the accompanying ownership manuals, license agreements and certificates of authenticity. Sacriz testified that during his visits to Maxicorp, he witnessed several instances when Maxicorp installed petitioners software into computers it had assembled. Sacriz also testified that he saw the sale of petitioners software within Maxicorps premises. Petitioners never authorized Maxicorp to install or sell their software. The testimonies of these two witnesses, coupled with the object and documentary evidence they presented, are sufficient to establish the existence of probable cause. From what they have witnessed, there is reason to believe that Maxicorp engaged in copyright infringement and unfair competition to the prejudice of petitioners. Both NBI Agent Samiano and Sacriz were clear and insistent that the counterfeit software were not only displayed and sold within Maxicorps premises, they were also produced, packaged and in some cases, installed there. 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 implied by the words themselves, "probable cause" is concerned with probability, not absolute or even moral certainty. The prosecution need not present at this stage proof beyond reasonable doubt. The standards of judgment are those of a reasonably prudent man,24 not the exacting calibrations of a judge after a full-blown trial. No law or rule states that probable cause requires a specific kind of evidence. No formula or fixed rule for its determination exists.25 Probable cause is determined in the light of conditions obtaining in a given situation.26 Thus, it was improper for the Court of Appeals to reverse the RTCs findings simply because the sales receipt evidencing NBI Agent Samianos purchase of counterfeit goods is not in his name. For purposes of determining probable cause, the sales receipt is not the only proof that the sale of petitioners software occurred. During the search warrant application proceedings, NBI Agent Samiano presented to the judge the computer unit that he purchased from Maxicorp, in which computer unit Maxicorp had pre-installed petitioners software.27 Sacriz, who was present when NBI Agent Samiano purchased the computer unit, affirmed that NBI Agent Samiano purchased the computer unit.28 Pante, the computer technician, demonstrated to the judge the presence of petitioners software on the same computer unit.29 There was a comparison between petitioners genuine software and Maxicorps software pre-installed in the computer unit that NBI Agent Sambiano purchased.30 Even if we disregard the sales receipt issued in the name of "Joel Diaz," which petitioners explained was the alias NBI Agent Samiano used in the operation, there still remains more than sufficient evidence to establish probable cause for the issuance of the search warrants.

This also applies to the Court of Appeals ruling on Sacrizs testimony. The fact that Sacriz did not actually purchase counterfeit software from Maxicorp does not eliminate the existence of probable cause. Copyright infringement and unfair competition are not limited to the act of selling counterfeit goods. They cover a whole range of acts, from copying, assembling, packaging to marketing, including the mere offering for sale of the counterfeit goods. The clear and firm testimonies of petitioners witnesses on such other acts stand untarnished. The Constitution and the Rules of Court only require that the judge examine personally and thoroughly the applicant for the warrant and his witnesses to determine probable cause. The RTC complied adequately with the requirement of the Constitution and the Rules of Court. 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.31 For this reason, the findings of the judge deserve great weight. The reviewing court should overturn such findings only upon proof that the judge disregarded the facts before him or ignored the clear dictates of reason.32 Nothing in the records of the preliminary examination proceedings reveal any impropriety on the part of the judge in this case. As one can readily see, here the judge examined thoroughly the applicant and his witnesses. To demand a higher degree of proof is unnecessary and untimely. The prosecution would be placed in a compromising situation if it were required to present all its evidence at such preliminary stage. Proof beyond reasonable doubt is best left for trial. On Whether the Search Warrants are in the Nature of General Warrants A search warrant must state particularly the place to be searched and the objects to be seized. The evident purpose for this requirement is to limit the articles to be seized only to those particularly described in the search warrant. This is a protection against potential abuse. It is necessary to leave the officers of the law with no discretion regarding what articles they shall seize, to the end that no unreasonable searches and seizures be committed.33 In addition, under Section 4, Rule 126 of the Rules of Criminal Procedure, a search warrant shall issue "in connection with one specific offense." The articles described must bear a direct relation to the offense for which the warrant is issued.34 Thus, this rule requires that the warrant must state that the articles subject of the search and seizure are used or intended for use in the commission of a specific offense. Maxicorp argues that the warrants issued against it are too broad in scope and lack the specificity required with respect to the objects to be seized. After examining the wording of the warrants issued, the Court of Appeals ruled in favor of Maxicorp and reversed the RTCs Order thus: Under the foregoing language, almost any item in the petitioners store can be seized on the ground that it is "used or intended to be used" in the illegal or unauthorized copying or reproduction of the private respondents software and their manuals.35 The Court of Appeals based its reversal on its perceived infirmity of paragraph (e) of the search warrants the RTC issued. The appellate court found that similarly worded warrants, all of which noticeably employ the phrase "used or intended to be used," were previously held void by this Court.36 The disputed text of the search warrants in this case states: a) Complete or partially complete reproductions or copies of Microsoft software bearing the Microsoft copyrights and/or trademarks owned by MICROSOFT CORPORATION contained in CD-ROMs, diskettes and hard disks;

b) Complete or partially complete reproductions or copies of Microsoft instruction manuals and/or literature bearing the Microsoft copyrights and/or trademarks owned by MICROSOFT CORPORATION; c) Sundry items such as labels, boxes, prints, packages, wrappers, receptacles, advertisements and other paraphernalia bearing the copyrights and/or trademarks owned by MICROSOFT CORPORATION; d) Sales invoices, delivery receipts, official receipts, ledgers, journals, purchase orders and all other books of accounts and documents used in the recording of the reproduction and/or assembly, distribution and sales, and other transactions in connection with fake or counterfeit products bearing the Microsoft copyrights and/or trademarks owned by MICROSOFT CORPORATION; e) Computer hardware, including central processing units including hard disks, CDROM drives, keyboards, monitor screens and diskettes, photocopying machines and other equipment or paraphernalia used or intended to be used in the illegal and unauthorized copying or reproduction of Microsoft software and their manuals, or which contain, display or otherwise exhibit, without the authority of MICROSOFT CORPORATION, any and all Microsoft trademarks and copyrights; and f) Documents relating to any passwords or protocols in order to access all computer hard drives, data bases and other information storage devices containing unauthorized Microsoft software.37 (Emphasis supplied) It is only required that a search warrant be specific as far as the circumstances will ordinarily allow.38 The description of the property to be seized need not be technically accurate or precise. The nature of the description should vary according to whether the identity of the property or its character is a matter of concern.39 Measured against this standard we find that paragraph (e) is not a general warrant. The articles to be seized were not only sufficiently identified physically, they were also specifically identified by stating their relation to the offense charged. Paragraph (e) specifically refers to those articles used or intended for use in the illegal and unauthorized copying of petitioners software. This language meets the test of specificity.40 The cases cited by the Court of Appeals are inapplicable. In those cases, the Court found the warrants too broad because of particular circumstances, not because of the mere use of the phrase "used or intended to be used." In Columbia Pictures, Inc. v. Flores, the warrants ordering the seizure of "television sets, video cassette recorders, rewinders and tape cleaners x x x" were found too broad since the defendant there was a licensed distributor of video tapes.41 The mere presence of counterfeit video tapes in the defendants store does not mean that the machines were used to produce the counterfeit tapes. The situation in this case is different. Maxicorp is not a licensed distributor of petitioners. In Bache & Co. (Phil.), Inc., et al. v. Judge Ruiz, et al., the Court voided the warrants because they authorized the seizure of records pertaining to "all business transactions" of the defendant.42 And in 20th Century Fox Film Corp. v. Court of Appeals, the Court quashed the warrant because it merely gave a list of articles to be seized, aggravated by the fact that such appliances are "generally connected with the legitimate business of renting out betamax tapes."43 However, we find paragraph (c) of the search warrants lacking in particularity. Paragraph (c) states:

c) Sundry items such as labels, boxes, prints, packages, wrappers, receptacles, advertisements and other paraphernalia bearing the copyrights and/or trademarks owned by MICROSOFT CORPORATION; The scope of this description is all-embracing since it covers property used for personal or other purposes not related to copyright infringement or unfair competition. Moreover, the description covers property that Maxicorp may have bought legitimately from Microsoft or its licensed distributors. Paragraph (c) simply calls for the seizure of all items bearing the Microsoft logo, whether legitimately possessed or not. Neither does it limit the seizure to products used in copyright infringement or unfair competition. Still, no provision of law exists which requires that a warrant, partially defective in specifying some items sought to be seized yet particular with respect to the other items, should be nullified as a whole. A partially defective warrant remains valid as to the items specifically described in the warrant.44 A search warrant is severable, the items not sufficiently described may be cut off without destroying the whole warrant.45 The exclusionary rule found in Section 3(2) of Article III of the Constitution renders inadmissible in any proceeding all evidence obtained through unreasonable searches and seizure. Thus, all items seized under paragraph (c) of the search warrants, not falling under paragraphs a, b, d, e or f, should be returned to Maxicorp. WHEREFORE, we PARTIALLY GRANT the instant petition. The Decision of the Court of Appeals dated 23 December 1998 and its Resolution dated 29 November 1999 in CA-G.R. SP No. 44777 are REVERSED and SET ASIDE except with respect to articles seized under paragraph (c) of Search Warrants Nos. 96-451, 96-452, 96-453 and 96-454. All articles seized under paragraph (c) of the search warrants, not falling under paragraphs a, b, d, e or f, are ordered returned to Maxicorp, Inc. immediately. SO ORDERED. Davide, Jr., Quisumbing, Ynares-Santiago, and Azcuna, JJ., concur. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MODESTO TEE a.k.a. ESTOY TEE, accused-appellant. DECISION QUISUMBING, J.: For automatic review is the consolidated judgment 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. 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 U-27) 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. 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, 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. On August 7, 1998, the prosecution moved to amend the foregoing charge sheet considering that subject marijuana were seized in two (2) different places. 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. 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. 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. Trial on the merits then ensued. 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. Sometime in late June 1998, appellant asked Abratique to find him a place for the storage of smuggled cigarettes. 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. 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. 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. 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. Abratique was aware that they were transporting marijuana as some of the articles in the sacks became exposed in the process of loading. 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. 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. 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. 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. 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. The NBI operatives, with some PNP NARCOM personnel in tow, proceeded to appellants residence where they served the warrant upon appellant himself. The search was witnessed by appellant, members of his family, barangay officials, and members of the media. Photographs were taken during the actual search. The law enforcers found 26 boxes and a sack of dried marijuana in the water tank, garage, and storeroom of appellants residence. The total weight of the haul was 591.81 kilograms. Appellant was arrested for illegal possession of marijuana. 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. 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. 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 2 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; and (2) leave said peace officers with no discretion regarding the articles to be seized and thus prevent unreasonable searches and seizures. 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 expedition to seize and confiscate any and all kinds of evidence or articles relating to an offense. However, it is not required that technical precision of description be required, 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. Thus, it has been held that term narcotics paraphernalia is not so wanting in particularity as to create a general warrant. 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. A search warrant commanding peace officers to seize a quantity of loose heroin has been held sufficiently particular. 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. 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. 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. 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), and we find that it is captioned For Violation of R.A. 6425, as amended. 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. 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. Appellants 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. Before a valid search warrant is issued, both the Constitution and the 2000 Revised Rules of Criminal Procedure 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. 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. 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 (798) 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. 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. In the testimony of witness Abratique, Judge Reyes required Abratique to confirm the contents of his affidavit; there were instances when Judge Reyes questioned him extensively. It is presumed that a judicial function has been regularly performed, 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, as long as there was substantial basis for that determination. 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. 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. 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. 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 intended and distinguish it from other places in the community. 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. What the record discloses is that the warrant was served on appellant, who was given time to read it, and the search was witnessed by the barangay officials, police operatives, members of the media, and appellants kith and kin. 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. 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. No less than four (4) warrants of arrest were issued against him to compel him to testify. 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. 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. Nothing 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. He also failed to show up at the hearing of June 8, 1999.

Appellant now stresses that the failure of Abratique to appear and testify on twenty (20) hearing dates violated appellants constitutional 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. 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. The Speedy Trial Act of 1998, provides that the trial period for criminal cases in general shall be one hundred eighty (180) days. 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. The right to a speedy trial is deemed violated only when: (1) the proceedings are attended by vexatious, capricious, and oppressive delays; or (2) when unjustified postponements are asked for and secured; or (3) when without cause or justifiable motive a long period of time is allowed to elapse without the party having his case tried. 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. 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. 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. 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. 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. 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. However, a concession to a reopening must not prejudice the accused or deny him the opportunity to introduce counter evidence. 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. 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. 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. 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. 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, 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. 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. 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. 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. 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. 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. 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. In effect, the onus probandi is shifted to accused to explain the absence of knowledge or animus possidendi 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. 3. 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) 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. 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. 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. 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. The statute prescribes two indivisible penalties: reclusion perpetua and death. Hence, the penalty to be imposed must conform with Article 63 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. 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. Thus, finding neither mitigating nor aggravating circumstances in the present case, appellants possession of 591.81 kilograms of marijuana in Criminal Case No. 15800-R, 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. 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. Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur. TAMBASEN VS. PEOPLE [246 SCRA 184; G.R. NO. 89103; 14 JUL 1995] Tuesday, February 03, 2009 Posted by Coffeeholic Writes Labels: Case Digests, Political Law Facts: In August 1988, P/Sgt. Natuel applied for issuance of search warrant alleging that he received information that Petitioner had in his possession at his house M-16 Armalite rifles, hand grenades, .45 Cal. pistols, dynamite sticks and subversive documents, which were used or intended to be used for illegal purposes. The application was granted. In September, a police team, searched the house of petitioner and seized 2 envelopes containing P14000, handset with antennae, transceiver with antennae, regulator supply, academy notebook and assorted papers and handset battery pack. In October, petitioner moved that the search and seizure be declared illegal and that the seized articles be returned to him. In December, MTCC, in its order, directed Lt. Col. Torres to return the money seized to petitioner ruling that any seizure should be limited to the specified items covered thereby. SolGen petitioned with the RTC for the annulment of the order of MTCC citing that pending the determination of legality of seizure of the articles, they should remain in custogia legis. RTC granted the petition. Issue: Whether or Not the seizure of the articles which were not mentioned in the search warrant was legal.

Held: Section 2 Article III of the 1987 Constitution requires that a search warrant should particularly describe the things to be seized. The police acts beyond the parameters of their authority if they seize articles not described in the search warrants. The evident purpose and intent of the requirement is to limit the things to be seized, to leave the officers of the law with no discretion; that unreasonable search and seizure may not be made and that abuses may not be committed. Petition granted. People of the Philippines is ordered to return the money seized. Constitutional Law II : Searches & Seizures (Chapter 10) Xavier University (Ateneo de Cagayan) - College of Law Farhanna B. Mapandi (Block A) 33 PEOPLE VS VELOSO 48 PHIL. 169 (1925) MALCOLM, J. Facts: -In May, 1923, the building located at No. 124 Calle Arzobispo, City of Manila, was used by an organization known as the Parliamentary Club. Jose Ma. Veloso was at that time a member of the House of Representative of the Philippine Legislature. He was also the manager of the club. -The police of Manila had reliable information that the so-called Parliamentary Club was nothing more than a gambling house. Indeed, on May 19, 1923, J. F. Townsend, the chief of the gambling squad, had been to the club and verified this fact. As a result, on May 25, 1923, Detective Andres Geronimo of the secret service of the City of Manila, applied for, and obtained a search warrant from Judge Garduo of the municipal court. Thus provided, the police attempted to raid the Parliamentary Club a little after three in the afternoon of the date above- mentioned. They found the doors to the premises closed and barred. Accordingly, one band of police including policeman Rosacker, ascended a telephone pole, so as to enter a window of the house. Other policemen, headed by Townsend, broke in the outer door. -Once inside the Parliamentary Club, nearly fifty persons were apprehended by the police. One of them was the defendant Veloso. Veloso asked Townsend what he wanted, and the latter showed him the search warrant. Veloso read it and told Townsend that he was Representative Veloso and not John Doe, and that the police had no right to search the house. Townsend answered that Veloso was considered as John Doe. As Veloso's pocket was bulging, as if it contained gambling utensils, Townsend required Veloso to show him the evidence of the game. About five minutes was consumed in conversation between the policemen and the accused the policemen insisting on searching Veloso, and Veloso insisting in his refusal to submit to the search. -At last the patience of the officers was exhausted. So policeman Rosacker took hold of Veloso only to meet with his resistance. Veloso bit Rosacker in the right forearm, and gave him a blow in another part of the body, which injured the policeman quite severely. Through the combined efforts of Townsend and Rosacker, Veloso was finally laid down on the floor, and long sheets of paper, of reglas de monte, cards, cardboards, and chips were taken from his pockets.

-All of the persons arrested were searched and then conducted to the patrol wagons. Veloso again refused to obey and shouted offensive epithets against the police department. It was necessary for the policemen to conduct him downstairs. At the door, Veloso resisted so tenaciously that three policemen were needed to place him in the patrol wagon. -The warrant read as follows: Constitutional Law II : Searches & Seizures (Chapter 10) Xavier University (Ateneo de Cagayan) - College of Law Farhanna B. Mapandi (Block A) SEARCH WARRANT (G) The People of the Philippine Islands, to any member of the Police Force of the City of Manila. GREETING Proof by affidavit having this day been made before me by Andres Geronimo that he has good reason to believe and does believe that John Doe has illegally in his possession in the building occupied by him and which is under his control, namely in the building numbered 124 Calle Arzobispo, City of Manila, Philippines Islands, certain devices and effects used in violation of the Gambling Law, to wit: money, cards, chips, reglas, pintas, tables and chairs and other utensils used in connection with the game commonly known as monte and that the said John Doe keeps and conceals said devices and effects with the illegal and criminal intention of using them in violation of the Gambling Law. Now therefore, you are hereby commanded that at any time in the day or night within ten (10) days on or after this date to make a search on the person of said John Doe and in the house situated at No. 124 Calle Arzobispo, City of Manila, Philippine Islands, in quest of the above described devices and effects and if you find the same or any part thereof, you are commanded to bring it forthwith before me as provided for by law. Given under my hand, this 25th day of May, 1923. (Sgd.) L. GARDUO Judge, Municipal Court

Issue:WON the search warrant and the arrest of Veloso was valid. Ruling:Ye s. RD: It is provided, among other things, in the Philippine Code on Criminal Procedure that a search warrant shall not issue except for probable cause and upon application supported by oath particularly describing the place to be searched and the person of thing to be seized. The name and description of the accused should be inserted in the body of the warrant and where the name is unknown there must be such a description of the person accused as will enable the officer to identify him when found. A warrant for the apprehension of a person whose true name is unknown, by the name of "John Doe" or "Richard Roe," "whose other or true name in unknown," is void, without other and further descriptions of the person to be apprehended, and such warrant will not justify the officer in acting under it. Such a warrant must, in addition, contain the best descriptio personae possible to be obtained of the person or persons to be apprehended, and this description must be sufficient to indicate clearly the proper person or persons upon whom the warrant is to be served; and should state his personal appearance and peculiarities, give his occupation and place of residence, and any other circumstances by means of which he can be identified. In the first place, the affidavit for the search warrant and the search warrant itself described the building to be searched as "the building No. 124 Calle Arzobispo, City of Manila, Philippine Islands." This, without doubt, was a sufficient designation of the premises to be searched. As the search warrant stated that John Doe had gambling apparatus in his possession in the building occupied by him at No. 124 Calle Arzobispo, City of Manila, and as this John Doe was Jose Ma. Veloso, the manager of the club, the police could identify John Doe as Jose Ma. Veloso without difficulty. Yousef Al-Ghoul vs. Court of Appeals [GR 126859, 4 September 2001] Second Division, Quisumbing (J): 4 concur Facts: On 31 March 1995, Judge Geronimo S. Mangay, presiding judge of the Regional Trial Court, National Capital Judicial Region, Branch 125, Kalookan City, issued search warrants 54-95 and 55-95 for the search and seizure of certain items in Apartment 2 at 154 Obiniana Compound, Deparo Road, Kalookan City. On 1 April 1995, the police searched Apartment 8, in the same compound and found one (1) .45 caliber pistol. Found in Apartment 2 were 2 M-16 rifles with 2 magazines and 20 live M-16 ammunitions, 1 Bar of demolition charge, 1 Caliber Pistol with no. 634 and other nos. were placed with magazine of Caliber .45 and 3 live 45 ammunitions, 1 22 Caliber handgun with 5 live ammunitions in its cylinder, 1 Box containing 40 pieces of .25 caliber ammunitions, 2 pieces of fragmentation grenade, 1 roll of detonating cord color yellow, 2 big bags of ammonium nitrate suspected to be explosives substance, 22 detonating cords with blasting caps, and pound of high explosives TNT, 1 timer alarm clock, 2 bags of suspected gun powder, 2 small plastic bag of suspected explosive substance, 1 small box of plastic bag of suspected

dynamites, One weighing scale, and 2 batteries 9 volts with blasting caps and detonating cord. The firearms, ammunitions, explosives and other incendiary devices seized at the apartments were acknowledged in the receipt signed by SPO2 Melanio de la Cruz. Yousef Al Ghoul, Isam Mohammad Abdulhadi, Wail Rashid Al-Khatib, Nabeel Nasser Al-Riyami, Ashraf Hassam AlYazori, and Mohammad Abushendi were charged before the Regional Trial Court of Kalookan City, Branch 123, in informations (Criminal Cases C-48666-67) accusing them with illegal possession of firearms, ammunitions and explosives, pursuant to Presidential Decree 1866. Thereafter, they were arrested and detained. They filed a motion for bail on 24 May 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. On 7 February 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 19 February 1996, the RTC denied their motion for bail earlier filed. As their action before appellate court also proved futile, with the appellate court dismissing their special civil action for certiorari, they filed the petition for review before the Supreme Court. Issue: Whether the search and seizure orders are valid, and the objects seized admissible in evidence. Held: As held in PICOP v. Asuncion, 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, the search made at Apartment No. 8 is illegal and the .45 caliber pistol taken thereat is inadmissible in evidence against Al-Ghoul, et. al. In contrast, the search conducted at Apartment 2 could not be similarly faulted. The search warrants specifically mentioned Apartment 2. The search was done in the presence of its occupants, in accordance with Section 7 of Rule 126, Revised Rules of Court. The articles seized during the search of Apartment 2 are of the same kind and nature as those items enumerated in the search warrant. The items seized from Apartment 2 were described with specificity in the warrants in question. The nature of the items ordered to be seized did not require 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. Once described, however, the articles subject of the search and seizure need not be so invariant as to require absolute concordance between those seized and those described in the warrant. Substantial similarity of those articles described as a class or species would suffice. [G.R. No. 129651. October 20, 2000] FRANK UY and UNIFISH PACKING CORPORATION, petitioners, vs. BUREAU OF INTERNAL REVENUE and HON. MERCEDES GOZO-DADOLE, respondents. DECISION KAPUNAN, J.: Petitioners assail the validity of the warrants issued for the search of the premises of the Unifish Packing Corporation, and pray for the return of the items seized by virtue thereof.

On 30 September 1993, a certain Rodrigo Abos reported to the Bureau of Internal Revenue (BIR) that petitioners Unifish Packing Corporation and Uy Chin Ho alias Frank Uy were engaged in activities constituting violations of the National Internal Revenue Code. Abos, who claimed to be a former employee of Unifish, executed an Affidavit[1] stating: 1. He has personal knowledge that UNIFISH PACKING CORPORATION (hereinafter referred to as UNIFISH), a canning factory located at Hernan Cortes Street, under the active management of UY CHIN HO alias Frank Uy [,] is selling by the thousands of [sic] cartons of canned sardines without issuing receipt. This is in violation of Sections 253 and 263 of the Internal Revenue Code. 2. This grand scale tax fraud is perpetrated through the following scheme: (1) Uy Chin Ho a director of UNIFISH buys in bulk from the company; (2) Being a director, Uy Chin Ho has a lot of clout in the distribution of the canned sardines processed by UNIFISH; (3) Uy Chin Ho dictates the value of canned sardines that he orders and buys from UNIFISH without any receipt of his purchases; (4) The moment he has the quantity he wants, UNIFISH through Uy Chin Ho delivers to the different supermarkets such as White Gold, Gaisano, etc.; (5) Payments made by these tax evading establishments are made by checks drawn payable to cash and delivered to Uy Chin Ho; These payments are also not receipted (sic); (6) Uy Chin Ho will then pay UNIFISH for the quantity of sardines he had withdrawn from the corporation; 3. Another fraudulent practice perpetrated by UNIFISH through Uy Chin Hos direction is the sale of imported oil locally to different customers. This is a case of smuggling in the sense that UNIFISH, being an export company registered with the Board of Investments, is enjoying certain exemptions in their importation of oil as one of the raw materials in its processing of canned tuna for export. These tax exemptions are granted by the government on the condition that the oil is to be used only in the processing of tuna for export and that it is not to be sold unprocessed as is to local customers. 4. Another fraudulent practice involves the sales of unused cans; UNIFISH also enjoys tax exemptions in its purchases of tin cans subject to the condition that these are to be used as containers for its processed tuna for export. These cans are never intended to be sold locally to other food processing companies. 5. Prior to 1990, that is from 1980 to 1990, the factory of the UNIFISH PACKING CORPORATION was then run by the PREMIER INDUSTRIAL & DEVELOPMENT CORPORATION (hereinafter referred to as PREMIER) [,] which corporation was being controlled by the same majority stockholders as those now running and controlling UNIFISH; [a]t that time, PREMIER was also committing the same fraudulent acts as what is being perpetrated by UNIFISH at present. 6. The records containing entries of actual volume of production and sales, of both UNIFISH AND PREMIER, are found in the office of the corporation at its factory site at H. Cortes Street, Mandaue City. The particular place or spot where these records [official receipts, sales invoices, delivery receipts, sales records or sales books, stock cards, accounting records (such as ledgers, journals, cash receipts books, and check disbursements books)] are kept and may be found is best described in the herein attached sketch of the arrangement of the offices furniture and fixture of the corporation which is made an integral part hereof and marked as Annex A,

7. He is executing this affidavit to attest under oath the veracity of the foregoing allegations and he is reserving his right to claim for reward under the provisions of Republic Act No. 2338. On 1 October 1993, Nestor N. Labaria, Assistant Chief of the Special Investigation Branch of the BIR, applied for search warrants from Branch 28 of the Regional Trial Court of Cebu. The application sought permission to search the premises of Unifish. After hearing the depositions of Labaria and Abos, Judge Mercedes Gozo-Dadole issued the disputed search warrants. The first[2] is docketed as SEARCH WARRANT NO. 93-10-79 FOR: VIOLATION OF SECTION 253 ("Search Warrant A-1"), and consists of two pages. A verbatim reproduction of Search Warrant A-1 appears below: REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT OF CEBU 7th Judicial Region Branch 28 Mandaue City THE PEOPLE OF THE PHILIPPINES, Plaintiff, - versus - SEARCH WARRANT NO. 93-10-79 FOR: VIOLATION OF SEC. 253 UY CHIN HO alias FRANK UY, Unifish Packing Corporation Hernan Cortes St., Cebu City x-------------------------/ (with sketch) SEARCH WARRANT TO ANY PEACE OFFICER: G R E E T I N G S: It appearing to the satisfaction of the undersigned, after examination underoath (sic), Nestor N. Labaria, Asst. Chief, Special Investigation Branch, BIR and witness Rodrigo Abos that there is a (sic) probable cause to believe that the crime of violation of Section 253 - attempt to evade or defeat the tax has been committed and there is good and sufficient reason to believe that Uy Chin Ho c/o Unifish Packing Corporation, Hernan Cortes St., Mandaue City has in his possession, care and control, the following: 1. Multiple sets of Books of Accounts; Ledgers, Journals, Columnar Books, Cash Register Books, Sales Books or Records; Provisional & Official Receipts; 2. Production Record Books/Inventory Lists [,] Stock Cards; 3. Unregistered Delivery Receipts; 4. Unregistered Purchase & Sales Invoices; 5. Sales Records, Job Order; 6. Corporate Financial Records; and 7. Bank Statements/Cancelled Checks You are hereby commanded to make an immediate search at any time of day or night of said premises and its immediate vicinity and to forthwith seize and take possession of the articles above-mentioned and other properties relative to such violation and bring said properties to the undersigned to be dealt with as the law directs.

WITNESS MY HAND this 1st day of October, 1993. (sgd.) MERCEDES GOZO-DADOLE Judge The second warrant[3]is similarly docketed as SEARCH WARRANT 93-10-79 FOR: VIOLATION OF SEC. 253 ("Search Warrant A-2"). Search Warrant A-2, reproduced below, is almost identical in content to Search Warrant A-1, save for the portions indicated in bold print. It consisted of only one page. REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT OF CEBU 7th Judicial Region Branch 28 Mandaue City THE PEOPLE OF THE PHILIPPINES, Plaintiff, - versus - SEARCH WARRANT NO. 93-10-79 FOR: VIOLATION OF SEC. 253 UY CHIN HO alias FRANK UY, and Unifish Packing Corporation Hernan Cortes St., Mandaue City x-------------------------/ (with sketch) SEARCH WARRANT TO ANY PEACE OFFICER: G R E E T I N G S: It appearing to the satisfaction of the undersigned, after examination underoath [sic], Nestor N. Labaria, Asst. Chief, Special Investigation Branch, BIR and witness Rodrigo Abos that there is a [sic] probable cause to believe that the crime of violation of Section 253 - attempt to evade or defeat the tax has been committed and there is good and sufficient reason to believe that Uy Chin Ho alias Frank Uy and Unifish Packing Corporation, Hernan Cortes St., Mandaue City has in his possession, care and control, the following: 1. Multiple sets of Books of Accounts; Ledgers, Journals, Columnar Books, Cash Register Books, Sales Books or Records; Provisional & Official Receipts; 2. Production Record Books/Inventory Lists [,] Stock Cards; 3. Unregistered Delivery Receipts; 4. Unregistered Purchase & Sales Invoices; 5. Sales Records, Job Order; 6. Corporate Financial Records; and 7. Bank Statements/Cancelled Checks You are hereby commanded to make an immediate search at any time of day or night of said premises and its immediate vicinity and to forthwith seize and take possession of the articles above-mentioned and other properties relative to such violation and bring said properties to the undersigned to be dealt with as the law directs. WITNESS MY HAND this 1st day of October, 1993.

(sgd.) MERCEDES GOZO-DADOLE Judge Judge Gozo-Dadole issued a third warrant,[4] which was docketed as SEARCH WARRANT 9310-80 FOR: VIOLATION OF SEC. 238 in relation to SEC. 263 (hereinafter, "Search Warrant B"). Except for the docket number and the designation of the crime in the body of the warrant (Section 238 in relation to Sec. 263 - non-issuance of sales invoice and use and possession of unregistered delivery receipts and/or sales invoices), Search Warrant B is a verbatim reproduction of Search Warrant A-2. On the strength of these warrants, agents of the BIR, accompanied by members of the Philippine National Police, on 2 October 1993, searched the premises of the Unifish Packing Corporation. They seized, among other things, the records and documents of petitioner corporation. A return of said search was duly made by Nestor Labaria with the RTC of Cebu , Branch 28. On 8 February 1995, the BIR filed against petitioners a case before the Department of Justice. The records, however, do not reveal the nature of this case. On 31 March 1995, petitioners filed motions to quash the subject search warrants with Branch 28 of the Cebu RTC. The RTC, however, denied petitioners' motions to quash as well as their subsequent motion for reconsideration, prompting petitioners to file a petition for certiorari with the Court of Appeals (CA). The CA dismissed their petition, holding that petitioners failed to comply with Section 2(a), Rule 6 of the Revised Internal Rules of the Court of Appeals (RIRCA), which states: a. What Should be Filed. - The petition shall be filed in seven (7) legible copies and a copy thereof shall be served on each of the respondents, and must be accompanied by a certified true copy of the decision or order complained of and true copies of the pleadings and other pertinent documents and papers. (As amended by S.Ct. Res., dated November 24, 1992). The CA found that petitioners did not submit certified true copies of (1) the Motions to Quash, (2) the Motion for Reconsideration, and (3) the Affidavit of Rodrigo Abos. The CA also held that certiorari was not the proper remedy to question the resolution denying the motion to quash. In this case now before us, the available remedies to the petitioners, assuming that the Department of Justice will eventually file the case, are: a petition for reinvestigation; the right to post bail; a Motion to Quash the Information; and in case of denial, an appeal, after judgment on the merits, or after the case shall have been tried. This brings us to the case of Lai vs. Intermediate 220 SCRA 149 and the pronouncement, thus: Criminal Procedure: Certiorari: Certiorari should not be allowed where petitioner has other remedies available. -- Anent the remedy resorted to by petitioners (referring to the petition for certiorari) from the Regional Trial Court of Negros Oriental presided by Judge Diez, the same should not have been granted. Petitioners were not without plain, speedy and adequate remedies in the ordinary course of law against Judge Lomeda's order for their arrest. These remedies are as enumerated by respondent appellate court in its decision: "1. they can post bail for their provisional release; 2. They can ask the Provincial Fiscal for a reinvestigation of the charge against them. If unsatisfied with the fiscal's resolution they can ask for a review by the Minister of Justice; (Sec. 1(), RA 5180 as amended by P.D. 911); 3. if their petition for review does not prosper, they can file amotion to quash the information in the trial court. (Rule 117, Rules of Court). 4. If the

motion is denied, theycan appeal the judgment of the court after the case shall have been tried on the merits. x x x Where motion to quash is denied, remedy is not certiorari, but to go to trial.-- Moreover, in the case of Acharon vs. Purisima, this Court held that when a motion to quash a criminal case is denied, the remedy is notcertiorari but to go to trial without prejudice to reiterating the special defenses involved in said Motion. In the event that an adverse decision is rendered after trial on the merits, an appeal therefrom should be the next legal step. xxx In this case now before Us, there is no pretention [sic] that the Court issued the Search Warrants without jurisdiction. On the contrary, it had jurisdiction. The argument therefore that the Court committed an error in not describing the persons or things to be searched; that the Search Warrants did not describe with particularity the things to be seized/taken; the absence of probable cause; and for having allegedly condoned the discriminating manner in which the properties were taken, to us, are merely errors in the Court's finding, certainly not correctible by certiorari, but instead thru an appeal.[5] In any event, the CA ruled, no grave abuse of discretion amounting to lack of jurisdiction was committed by the RTC in the issuance of the warrants. As petitioners' motion for reconsideration proved futile, petitioners filed the instant petition for review. Petitioners claim that they did submit to the CA certified true copies of the pleadings and documents listed above along with their Petition, as well as in their Motion for Reconsideration. An examination of the CA Rollo, however, reveals that petitioners first submitted the same in their Reply, after respondents, in their Comment, pointed out petitioners failure to attach them to the Petition. Nevertheless, the CA should not have dismissed the petition on this ground although, to its credit, it did touch upon the merits of the case. First, it appears that the case could have been decided without these pleadings and documents. Second, even if the CA deemed them essential to the resolution of the case, it could have asked for the records from the RTC. Third, in a similar case, [6] we held that the submission of a document together with the motion for reconsideration constitutes substantial compliance with Section 3, Rule 46 of the Rules of Court, requiring the submission of a certified true copy of material portions of the record as are referred to [in the petition], and other documents relevant or pertinent thereto along with the petition. So should it be in this case, especially considering that it involves an alleged violation of a constitutionally guaranteed right. The rules of procedure are not to be applied in a very rigid, technical sense; rules of procedure are used only to help secure substantial justice. If a technical and rigid enforcement of the rules is made, their aim could be defeated.[7] The CA likewise erred in holding that petitioners cannot avail of certiorari to question the resolution denying their motions to quash the subject search warrants. We note that the case of Lai vs. Intermediate, cited by the appellate court as authority for its ruling does not appear in 220 SCRA 149. The excerpt of the syllabus quoted by the court, as observed by petitioners,[8] appears to have been taken from the case of Yap vs. Intermediate Appellate Court, 220 SCRA 245 (1993). Yap, however, is inapplicable since that case involved a motion to quash a complaint for qualified theft, not a motion to quash a search warrant.

The applicable case is Marcelo vs. De Guzman,[9] where we held that the issuing judges disregard of the requirements for the issuance of a search warrant constitutes grave abuse of discretion, which may be remedied by certiorari: Expressly announced in Section 1, Rule 65 of the Rules of Court is the general rule that certiorari is available where a tribunal or officer exercising judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law. In the light of the findings of the lower court, herein above quoted, it is indisputable that Judge de Guzman gravely abused his discretion in issuing the said search warrant. Indeed, he acted whimsically and capriciously when he ignored the explicit mandate of Section 3, Rule 126 of the Rules of Court that a search warrant shall not issue but upon probable cause in connection with one specific offense to be determined by the municipal or city 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; and that no search warrant shall issue for more than one specific offense. The utter disregard by Judge de Guzman of the requirements laid down by the said rule renders the warrant in question absolutely null and void. It has been held that where the order complained of is a patent nullity, a petition for certiorari and mandamus may properly be entertained despite the existence of the remedy of appeal. Moreover, an appeal from the order of Judge de Guzman would neither be an adequate nor speedy remedy to relieve appellee of the injurious effects of the warrant. The seizure of her personal property had resulted in the total paralization of the articles and documents which had been improperly seized. Where the remedy of appeal cannot afford an adequate and expeditious relief, certiorari can be allowed as a mode of redress to prevent irreparable damage and injury to a party. This Court had occasion to reiterate the above pronouncement in Silva vs. Presiding Judge, RTC of Negros Oriental, Br. XXXIII,[10] which also involved a special civil action for certiorari:[11] Thus, in issuing a search warrant, the judge must strictly comply with the constitutional requirement that he must determine the existence of probable cause by examining the applicant and his witnesses in the form of searching questions and answers. His failure to comply with this requirement constitutes grave abuse of discretion. As declared in Marcelo vs. De Guzman, G.R. No. L-29077, June 29, 1982, 114 SCRA 657, the capricious disregard by the judge in not complying with the requirements before issuance of search warrants constitutes grave abuse of discretion. In this case, petitioners alleged in their petition before the CA that the issuing judge violated the pertinent provisions of the Constitution and the Rules of Court in issuing the disputed search warrants, which, if true, would have constituted grave abuse of discretion. Petitioners also alleged that the enforcers of the warrants seized almost all the records and documents of the corporation thus resulting in the paralysis of its business. Appeal, therefore, would not be an adequate remedy that would afford petitioners expeditious relief. We now proceed to the merits of the case. Section 2, Article III of the Constitution guarantees the right of the people against unreasonable searches and seizures: 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. In relation to the above provision, Rule 126 of the Rules of Court provides: 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. A search warrant must conform strictly to the requirements of the foregoing constitutional and statutory provisions. These requirements, in outline form, are: (1) the warrant 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.[12] The absence of any of these requisites will cause the downright nullification of the search warrants.[13] 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 under it.[14] Petitioners contend that there are several defects in the subject warrants that command their nullification. They point out inconsistencies in the description of the place to be searched in Search Warrant A-1, as well as inconsistencies in the names of the persons against whom Search Warrants A-1 and A-2 were issued. That two search warrants (Search Warrants A-1 and A-2) were issued for the same crime, for the same place, at a single occasion is cited as another irregularity. Petitioners also dispute the existence of probable cause that would justify the issuance of the warrants. Finally, they claim that the things to be seized were not described with particularity. These defects, according to petitioners, render the objects seized inadmissible in evidence.[15] Inconsistencies in the description of the place to be searched Petitioners observe that the caption of Search Warrant A-1 indicates the address of Uy Chin Ho alias Frank Uy as Hernan Cortes St., Cebu City while the body of the same warrant states the address as Hernan Cortes St., Mandaue City. Parenthetically, Search Warrants A-2 and B consistently state the address of petitioner as Hernan Cortes St., Mandaue City. The Constitution requires, for the validity of a search warrant, that there be a particular description of the place to be searched and the persons of things to be seized.[16] 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[17]and distinguish it from other places in the community.[18] Any designation or description known to the locality that points out the place to the exclusion of all others, and on inquiry leads the officers unerringly to it, satisfies the constitutional requirement.[19] Thus, in Castro vs. Pabalan,[20] where the search warrant mistakenly identified the residence of the petitioners therein as Barrio Padasil instead of the adjoining Barrio Maria Cristina, this Court "admitted that the deficiency in the writ is not of sufficient gravity to call for its invalidation." In this case, it was not shown that a street similarly named Hernan Cortes could be found in Cebu City. Nor was it established that the enforcing officers had any difficulty in locating the premises of petitioner corporation. That Search Warrant A-1, therefore, inconsistently identified the city where the premises to be searched is not a defect that would spell the warrants invalidation in this case. Inconsistencies in the description of the persons named in the two warrants Petitioners also find fault in the description of the names of the persons in Search Warrants A-1 and A-2. Search Warrant A-1 was issued solely against Uy Chin Ho alias Frank Uy. Search Warrant A-2, on the other hand, was directed against UY CHIN HO alias FRANK UY, and Unifish Packing Corporation. These discrepancies are hardly relevant. In Miller v. Sigler,[21] it was held that the Fourth Amendment of the United States Constitution, from which Section 2, Article III of our own Constitution is historically derived, does not require the warrant to name the person who occupies the described premises. Where the search warrant is issued for the search of specifically described premises only and not for the search of a person, the failure to name the owner or occupant of such property in the affidavit and search warrant does not invalidate the warrant; and where the name of the owner of the premises sought to be searched is incorrectly inserted in the search warrant, it is not a fatal defect if the legal description of the premises to be searched is otherwise correct so that no discretion is left to the officer making the search as to the place to be searched.[22] Since, in the case at bar, the warrant was issued not for search of the persons owning or occupying the premises, but only a search of the premises occupied by them, the search could not be declared unlawful or in violation of the constitutional rights of the owner or occupants of the premises, because of inconsistencies in stating their names.[23] Two warrants issued at one time for one crime and one place In any event, Search Warrant A-1 should be deemed superseded by Search Warrant A-2. Two warrants, Search Warrants A-1 and A-2, were actually issued by the trial court for the same crime (violation of SEC. 253 of the National Internal Revenue Code). It appears, however, that Search Warrant A-2 was issued merely to correct the inconsistencies in the address in Search Warrant A-1, as well as to include Unifish Packing Corporation as a party against whom the warrant was issued. Search Warrant A-2 was evidently an attempt by the issuing judge to be more precise in the names of the persons against whom the warrant was issued and in the description of the place to be searched. Indeed, it would be absurd for the judge to issue on a single occasion two warrants authorizing the search of a single place for a single offense. Inasmuch as the apparent intent in issuing Search Warrant A-2 was to supersede Search Warrant A-1, the latter should be deemed revoked by the former.

The alleged absence of probable cause Petitioners claim there was no probable cause for Judge Gozo-Dadole to issue the subject search warrants. Probable cause is 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 the objects sought in connection with the offense are in the place sought to be searched.[24] In the determination of probable cause, the Constitution and the Rules of Court require an examination of the witnesses under oath. The examination must be probing and exhaustive, not merely routine or pro forma. 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.[25] 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.[26] The witnesses, in turn, must testify under oath to facts of their own personal knowledge. 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. [27] Search warrants are not issued on loose, vague or doubtful basis of fact, nor on mere suspicion or belief.[28] It may be recalled that before issuing the warrants, the judge deposed two witnesses, namely, Nestor Labaria of the BIR, and Rodrigo Abos, who claimed to be an old employee of Unifish. Petitioners claim that the testimonies of Labaria and Abos are hearsay. We agree with this contention, but only as to the testimony of Labaria, who stated during the examination: Q. Do you know of a certain Uy Chin Ho alias Frank Uy? A. No. Q. Do you know his establishment known as Unifish Packing Corporation? A. I have only heard of that thru the affidavit of our informer, Mr. Abos. Q. Why are you applying for search warrant in the premises of Unifish Packing Corporation? A. Because of that information we received that they are using only delivery receipts instead of the legal sales invoices. It is highly indicative of fraud. Q. From where did you get that information? A. From our informer, the former employee of that establishment.[29] The above portion of the transcript shows that Labarias knowledge of the alleged illegal activities of petitioners was acquired not through his own perception but was merely supplied by Abos. Therefore, the deposition of Labaria, which is based on hearsay, standing alone, cannot justify the issuance of the search warrants.[30] The application for the warrants, however, is not based solely on Labarias deposition but is supported by that of Abos, whose knowledge of petitioners alleged illegal practices was apparently obtained during his employment with Unifish. In his deposition, Abos detailed the schemes employed by Frank Uy and Unifish to evade the payment of taxes, and described the place where the documents supposedly evidencing these schemes were located: Q Do you know Frank Uy? A Yes. Q Why do you know him?

A Because I were (sic) an employee of his from 1980 until August of 1993. Q Where is this Unifish Packing Corporation located? A Hernan Cortes St. Q What is it being engaged of? A It is engaged in canning of fish. Q You have executed an affidavit here to the effect that it seems that in his business dealings that he is actually doing something that perpetrated tax evasion. Is that correct? A Yes. Q How is it done? A As an officer, he is an active member of the corporation who is at the same time making his authority as appointing himself as the distributor of the company's products. He sells these products thru supermarkets in Visayas and Mindanao, in fact, the whole Philippines. He makes it appear that it is the company which is selling when actually it is him selling the goods and he does not issue any invoices. Q Since he does not issue any invoices, how is it done? A Thru delivery receipts. Q Is the delivery receipt official? A No. It is unregistered. Q For how long has this been going on? A As far as I know, it is still in 1986 since we started producing the sardines. Q When was the last time that you observed that that is what he is doing? A August, 1993, last month. Q How did you happen to know about this last month? A Because he delivered to certain supermarkets and the payments of that supermarket did not go directly to the company. It went to him and he is the one who paid the company for the goods that he sold. Q Can you tell this Court the name of that certain supermarkets? A White Gold and Gaisano. Q How did you know this fact? A As a manager of the company I have access to all the records of that company for the last three years. I was the Operating Chief. Q Until now? A No. I was separated already. Q When? A August, 1993. Q How does he do this manipulation? A He sells the goods to the supermarkets afterwhich the company, Unifish will deliver to his customers, then his customers will pay directly to him and in turn, he pays to the company. Q And these transactions, were they reflected in their books of account or ledger or whatever? A It is written but it is supposed to be a secret transaction. It is not for the public, not for the BIR but it is only for the purpose of keeping the transactions between the company and him. It is not made to be shown to the BIR. Q In that books of account, is it reflected that they have made some deliveries to certain supermarkets?

A Yes. Q For the consumption of the BIR what are the papers that they show? A It is the private accounting firm that prepares everything. Q Based on what? A Based on some fictitious records just as they wish to declare. Q In your affidavit you stated that there are sales invoices, official receipts, delivery receipts, sales records, etc. These documents are records that you have stated, in your affidavit, which are only for the consumption of the company? A Yes, not for the BIR. Q Where are they kept now? A They are kept on the table which I have drawn in the sketch. This is the bird's eyeview (sic) of the whole office. When you enter thru the door this Gina Tan is the one recording all the confidential transactions of the company. In this table you can find all the ledgers and notebooks. Q This sketch is a blow-up of this portion, Exh. "A"? A Yes. Exh. "B" is the blow-up of Exh. "A" inside the office. In this blow-up there are four personnel plus one new personnel. Gina Tan collects all the records from this girl and this girl makes the statements. This first girl delivers the receipts. The second girl prepares the bill of lading. The third girl keeps the inventory of all the stocks. This sketch here is the bodega where the records are kept. The records from these people are stored in this place which is marked as "C". Q So what you want to impress on that now is that only current records are kept by Gina because according to you the whole records are already placed in the bodega? A Yes. Q But how can you enter the bodega? A Here, from the main entrance there is a door which will lead to this part here. If you go straight there is a bodega there and there is also a guard from this exit right after opening the door. Q The problem is that, when actually in August have you seen the current records kept by Gina? A I cannot exactly recall but I have the xerox copies of the records. Q Where are they now? A They are in my possession (witness handling [sic] to the Court a bunch of records). Q The transactions that are reflected in these xerox copies that you have given me, especially this one which seems to be pages of a ledger, they show that these are for the months of January, February, March, April and May. Are these transactions reflected in these xerox copies which appear in the ledger being shown to the BIR? A As far as I know, it did not appear. Q What about this one which says Columnar Book Cash Receipt for the month of January, what does it show? A It shows that Frank Uy is the one purchasing from the company and these are his customers. Q Do these entries appear in the columnar books which are the basis for the report to the BIR? A As far as I know, it does not reflect. Q What are these xerox copies of checks? A I think we cannot trace it up. These ones are the memos received by Unifish for payment of sardines. This is the statement of the company given to Uy Chin Ho for collection. Q It is also stated in your affidavit that the company imported soya oil. How is it done?

A The company imports soya oil to be used as a component in the processing of canned tuna for export. The company enjoys certain BOI privilege and so it is tax free. As far as I know, they profit more to dispose the product locally. Whatever excess of this soya oil are sold to another company. Q Is that fact reflected in the xerox copies? A No. I have the actual delivery receipt. Q In other words, the company imports soya oil supposedly to be used as a raw material but instead they are selling it locally? A Yes. ([W]itness showing DR No. 3053 dated November 13, 1991.) This delivery receipt was the delivery receipt to Celebes Canning Corp. of the 90 grams soya oil. Q In other words, this soya oil should have to be used by Unifish but instead they are seeling (sic) it? A Yes, at a profit. Q You also said that there is tax evasion in the selling of cans. What do you mean by this? A There is another privileged [sic] by the BOI for a special price given to packaging materials. When you export the product there is a 50% price difference. Now, taking that advantage of that exemption, they sold it to certain company here, again to Virginia Farms. Q Do you have proof to that effect? A No, but we can get it there. Q Will that fact be shown in any listed articles in the application for search warrant since according to you, you have seen this manipulation reflected on the books of account kept by Gina? Are you sure that these documents are still there? A Yes. I have received information. COURT: Alright.[31] Abos stated that, as former Operating Chief of Unifish, he had access to the company records, and even showed the issuing judge photocopies thereof. Thus, we reject the contention that this witness did not have personal knowledge of the facts to which he testified. The contents of the deposition clearly demonstrate otherwise. The deposition also shows that, contrary to petitioners submission, the inquiries made by the judge were far from leading or being a rehash of the witness affidavit. We find such inquiries to be sufficiently probing. Alleged lack of particularity in the description of the things seized Petitioners note the similarities in the description of the things to be seized in the subject warrants and those in Stonehill vs. Diokno,[32] Bache & Co. (Phil.), Inc. vs. Ruiz,[33] and Asian Surety & Insurance Co., Inc. vs. Herrera.[34] In Stonehill, the effects to be searched and seized were described as: Books of accounts, financial records, vouchers, journals correspondence, receipts, ledgers, portfolios, credit journals, typewriters, and other documents and/or papers showing all business transactions including disbursement receipts, balance sheets and related profit and loss statements. This Court found that the foregoing description failed to conform to the requirements set forth by the Constitution since: x x x the warrants authorized the search for and seizure of records pertaining to all business transactions of petitioners herein, regardless of whether the transactions were legal or illegal. The

warrants sanctioned the seizure of all records of the petitioners and the aforementioned corporations, whatever their nature, thus openly contravening the explicit command of our Bill of Rights - that the things to be seized be particularly described - as well as tending to defeat its major object: the elimination of general warrants. In Bache & Co., this Court struck down a warrant containing a similar description as those in Stonehill: The documents, papers, and effects sought to be seized are described in Search Warrant No. 2-M70 in this manner: Unregistered and private books of accounts (ledgers, journals, columnars, receipts and disbursements books, customers' ledgers); receipts for payments received; certificates of stocks and securities; contracts, promissory notes and deeds of sale; telex and coded messages; business communications; accounting and business records; checks and check stubs; records of bank deposits and withdrawals; and records of foreign remittances, covering the years 1966 to 1970. The description does not meet the requirement in Art. III, Sec. 1, of the Constitution, and of Sec. 3, Rule 126 of the Revised Rules of Court, that the warrant should particularly describe the things to be seized. xxx In Uy Kheytin, et al. vs. Villareal, etc., et al., 42 Phil. 886, 896, this Court had occasion to explain the purpose of the requirement that the warrant should particularly describe the place to be searched and the things to be seized, to wit: x x x Both the Jones Law (sec. 3) and General Orders No. 68 (sec. 97) specifically require that a search warrant should particularly describe the place to be searched and the things to be seized. The evident purpose and intent of this requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant - to leave the officers of the law with no discretion regarding what articles they shall seize, to the end that unreasonable searches and seizures may not be made, - that abuses may not be committed. That is the correct interpretation of this constitutional provision borne out by the American authorities. The purpose as thus explained could, surely and effectively, be defeated under the search warrant issued in this case. A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow (People vs. Rubio, 57 Phil, 384); or when the description expresses a conclusion of fact - not of law - by which the warrant officer may be guided in making the search and seizure (idem., dissent of Abad Santos, J.,); or when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued (Sec. 2, Rule 126, Revised Rules of Court). The herein search warrant does not conform to any of the foregoing tests. If the articles desired to be seized have any direct relation to an offense committed, the applicant must necessarily have some evidence, other than those articles, to prove the said offense; and the articles subject of search and seizure should come in handy merely to strengthen such evidence. In this event, the description contained in the herein disputed warrant should have mentioned, at least, the dates, amounts, persons, and other pertinent data regarding the receipts of payments, certificates of stocks and securities, contracts, promissory notes, deeds of sale, messages and communications, checks, bank deposits and withdrawals, records of foreign remittances, among others, enumerated in the warrant.

In Asian Surety & Insurance Co., Inc. vs. Herrera, the description of the things to be seized, i.e., Fire Registers, Loss, Bordereau, Adjusters' Report, including subrogation receipts and proof of loss, Loss Registers, Book of Accounts including cash receipts and disbursements and general ledger, etc. was held to be an omnibus description and, therefore, invalid: x x x Because of this all embracing description which includes all conceivable records of petitioner corporation, which if seized x x x, could paralyze its business, petitioner in several motions filed for early resolution of this case, manifested that the seizure of TWO carloads of their papers has paralyzed their business to the grave prejudice of not only the company, its workers, agents, employees but also of its numerous insured and beneficiaries of bonds issued by it, including the government itself, and of the general public. And correlating the same to the charges for which the warrant was issued, We have before Us the infamous general warrants of old. In the case at bar, the things to be seized were described in the following manner: 1. Multiple sets of Books of Accounts; Ledgers, Journals, Columnar Books, Cash Register Books, Sales Books or Records; Provisional & Official Receipts; 2. Production Record Books/Inventory Lists [,] Stock Cards; 3. Unregistered Delivery Receipts; 4. Unregistered Purchase & Sales Invoices; 5. Sales Records, Job Order; 6. Corporate Financial Records; and 7. Bank Statements/Cancelled Checks We agree that most of the items listed in the warrants fail to meet the test of particularity, especially since witness Abos had furnished the judge photocopies of the documents sought to be seized. The issuing judge could have formed a more specific description of these documents from said photocopies instead of merely employing a generic description thereof. The use of a generic term or a general description in a warrant is acceptable only when a more specific description of the things to be seized is unavailable. The failure to employ the specificity available will invalidate a general description in a warrant.[35] The use by the issuing judge of the terms multiple sets of books of accounts, ledgers, journals, columnar books, cash register books, sales books or records, provisional & official receipts, production record books/inventory lists, stock cards, sales records, job order, corporate financial records, and bank statements/cancelled checks is therefore unacceptable considering the circumstances of this case. As regards the terms unregistered delivery receipts and unregistered purchase & sales invoices, however, we hold otherwise. The Solicitor General correctly argues that the serial markings of these documents need not be specified as it is not possible to do so precisely because they are unregistered.[36] 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. Taking into consideration the nature of the articles so described, it is clear that no other more adequate and detailed description could have been given, particularly because it is difficult to give a particular description of the contents thereof.[37] Although it appears that photocopies of these unregistered documents were among those handed by Abos to the issuing judge, it would be impractical to require the latter to specify each and every receipt and invoice, and the contents thereof, to the minutest detail. The general description of most of the documents listed in the warrants does not render the entire warrant void. Insofar as the warrants authorize the search and seizure of unregistered delivery

receipts and unregistered purchase and sales invoices, the warrants remain valid. The search warrant is severable, and those items not particularly described may be cut off without destroying the whole warrant. In United States v. Cook,[38] the United States Court of Appeals (Fifth Circuit) made the following pronouncement: x x x. The leading decision is Aday v. Superior Court, 53 Cal.2d 789, 362 P.2d 47, 13 Cal.Rptr. 415 (1961). In Aday, a warrant was issued authorizing the seizure of two particularly described books and myriad other generally described items. On appeal, the California Supreme Court held that only the books were particularly described in the warrant and lawfully seized. The court acknowledged that the warrant was flawed, but rather than suppress everything seized, the court chose to sever the defective portions of the warrant and suppress only those items that were not particularly described. Although the warrant was defective x x x it does not follow that it was invalid as a whole. Such a conclusion would mean that the seizure of certain articles, even though proper if viewed separately, must be condemned merely because the warrant was defective with respect to other articles. The invalid portions of the warrant are severable from the authorization relating to the named books x x x. The search for and seizure of these books, if otherwise valid, were not rendered illegal by the defects concerning other articles. xxx x x x We agree with the reasoning of the Supreme Court of California and the majority of state courts that have considered this question and hold that in the usual case the district judge should sever the infirm portion of the search warrant as passes constitutional muster. See United States v. Giresi, 488 F.Supp. 445, 459-60 (D.N.J.1980). Items that were not described with the requisite particularity in the warrant should be suppressed, but suppression of all of the fruits of the search is hardly consistent with the purposes underlying exclusion. Suppression of only the items improperly described prohibits the Government from profiting from its own wrong and removes the court from considering illegally obtained evidence. Moreover, suppression of only those items that were not particularly described serves as an effective deterrent to those in the Government who would be tempted to secure a warrant without the necessary description. As the leading commentator has observed, it would be harsh medicine indeed if a warrant which was issued on probable cause and which did particularly describe certain items were to be invalidated in toto merely because the affiant and the magistrate erred in seeking and permitting a search for other items as well. 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 4.6(f) (1978). Accordingly, the items not particularly described in the warrants ought to be returned to petitioners. Petitioners allege that the following articles, though not listed in the warrants, were also taken by the enforcing officers: 1. One (1) composition notebook containing Chinese characters, 2. Two (2) pages writing with Chinese characters, 3. Two (2) pages Chinese character writing, 4. Two (2) packs of chemicals, 5. One (1) bound gate pass, 6. Surety Agreement.[39]

In addition, the searching party also seized items belonging to the Premier Industrial and Development Corporation (PIDC), which shares an office with petitioner Unifish. The things belonging to petitioner not specifically mentioned in the warrants, like those not particularly described, must be ordered returned to petitioners. In order to comply with the constitutional provisions regulating the issuance of search warrants, the property to be seized under a warrant must be particularly described therein and no other property can be taken thereunder.[40] In Tambasen vs. People,[41] it was held: Moreover, by their seizure of articles not described in the search warrant, the police acted beyond the parameters of their authority under the search warrant. Section 2, Article III of the 1987 Constitution requires that a search warrant should particularly describe the things to be seized. The evident purpose and intent of the requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant, to leave the officers of the law with no discretion regarding what articles they should seize, to the end that unreasonable searches and seizures may not be made and that abuses may not be committed (Corro v. Lising, 137 SCRA 541, 547 [1985]); Bache & Co. [Phil.], Inc. v. Ruiz, 37 SCRA 823 [1971]; Uy Kheytin v. Villareal, 42 Phil. 886 [1920]). The same constitutional provision is also aimed at preventing violations of security in person and property and unlawful invasions of the sanctity of the home, and giving remedy against such usurpations when attempted (People v. Damaso, 212 SCRA 547 [1992] citing Alvero v. Dizon, 76 Phil. 637, 646 [1946]). Clearly then, the money which was not indicated in the search warrant, had been illegally seized from petitioner. The fact that the members of the police team were doing their task of pursuing subversives is not a valid excuse for the illegal seizure. The presumption juris tantum of regularity in the performance of official duty cannot by itself prevail against the constitutionally protected right of an individual (People v. Cruz, 231 SCRA 759 [1994]; People v. Veloso, 48 Phil. 169, 176 [1925]). Although public welfare is the foundation of the power to search and seize, such power must be exercised and the law enforced without transgressing the constitutional rights of the citizens (People v. Damaso, supra, citing Rodriguez v. Evangelista, 65 Phil. 230, 235 [1937]). As the Court aptly puts it in Bagahilog v. Fernandez, 198 SCRA 614 (1991), [z]eal in the pursuit of criminals cannot ennoble the use of arbitrary methods that the Constitution itself abhors. The seizure of the items not specified in the warrants cannot be justified by the directive in the penultimate paragraph thereof to "seize and take possession of other properties relative to such violation," which in no way can be characterized as a particular description of the things to be seized. As regards the articles supposedly belonging to PIDC, we cannot order their return in the present proceedings. The legality of a seizure can be contested only by the party whose rights have been impaired thereby, and the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties.[42] WHEREFORE, the Resolutions of respondent Court of Appeals dated 27 June 1996 and 14 May 1987, affirming the Order of the Regional Trial Court dated 17 July 1995, are hereby AFFIRMED insofar as said Resolutions upheld the validity of the subject Search Warrants authorizing the seizure of the unregistered delivery receipts and unregistered purchase and sales invoices, but REVERSED with respect to the rest of the articles subject of said warrants. The respondent Bureau of Internal Revenue is hereby ordered to return to petitioners all items seized from the

subject premises and belonging to petitioners, except the unregistered delivery receipts and unregistered purchase and sales invoices. SO ORDERED.

The general rule on arrest provides that the same is legitimate if effected with a valid warrant. However, there are instances specifically enumerated under the law when a warrantless arrest may be considered lawful. Despite that, the warrantless arrest of herein petitioner Rolito Go does not fall within the terms of said rule. The police were not present at the time of the commission of the offense, neither do they have personal knowledge on the crime to be committed or has been committed not to mention the fact that petitioner was not a prisoner who has escaped from the penal institution. In view of the above, the allegation of the prosecution that petitioner needs to sign a waiver of the provisions of Article 125 of the Revised Penal Code before a preliminary

ROLITO GO y TAMBUNTING vs. COURT OF APPEALS FACTS An information was filed charging herein petitioner Rolito Go for murder before the Regional Trial Court of Metro Manila. Petitioner voluntarily presented himself together with his two lawyers to the police upon obtaining knowledge of being hunted by the latter. However, he was immediately detained and denied his right of a preliminary investigation unless he executes and sings a waiver of the provisions of Article 125 of the Revised Penal Code. Upon omnibus motion for immediate release on recognizance or on bail and proper preliminary investigation on the ground that his warrantless arrest was unlawful and no preliminary investigation was conducted before the information was filed, which is violative of his rights, the same was granted but later on reversed by the lower court and affirmed by the Court of Appeals. The appellate court in sustaining the decision of the lower court held that petitioner's warrantless arrest was valid in view of the fact that the offense was committed, the petitioner was clearly identified and there exists valid information for murder filed against petitioner Hence, the petitioner filed this present petition for review on certiorari before the Supreme Court. ISSUE/S: The issues assailed in the case at bar are the following: 1. whether or not the warrantless arrest of herein petitioner was lawful, and 2.whether or not petitioner waived his right to preliminary investigation. RULING:

investigation may be conducted is baseless. In this connection, petitioner has all the right to ask for a preliminary investigation to determine whether is probable cause that a crime has been committed and that petitioner is probably guilty thereof as well as to prevent him from the hassles, anxiety and aggravation brought by a criminal proceeding. This reason of the accused is substantial, which he should not be deprived of. On the other hand, petitioner did not waive his right to have a preliminary investigation contrary to the prosecutor's claim. The right to preliminary investigation is deemed waived when the accused fails to invoke it before or at the time of entering a pleas at arraignment. The facts of the case show that petitioner insisted on his right to preliminary investigation before his arraignment and he, through his counsel denied answering questions before the court unless they were afforded the proper preliminary investigation. For the above reasons, the petition was granted and the ruling of the appellate court was set aside and nullified. The Supreme Court however, contrary to

petitioner's allegation, declared that failure to accord the right to preliminary investigation did not impair the validity of the information charging the latter of the crime of murder. Padilla vs. Court of Appeals [GR 121917, 12 March 1997] Third Division, Francisco (J): 4 concur Facts: At about 8:00 p.m. of 26 October 1992, Enrique Manarang and his compadre Danny Perez were inside the Manukan sa Highway Restaurant in Sto. Kristo, Angeles City where they took shelter from the heavy downpour that had interrupted their ride on motorcycles along Mac Arthur Highway. While inside the restaurant, Manarang noticed a vehicle, a Mitsubishi Pajero, running fast down the highway prompting him to remark that the vehicle might get into an accident considering the inclement weather. Immediately after the vehicle had passed the restaurant, Manarang and Perez heard a screeching sound produced by the sudden and hard braking of a vehicle running very fast, followed by a sickening sound of the vehicle hitting something. Manarang and Cruz went out to investigate and immediately saw the vehicle occupying the edge or shoulder of the highway giving it a slight tilt to its side. Manarang, being a member of both the Spectrum, a civic group and the Barangay Disaster Coordinating Council, decided to report the incident to the Philippine National Police (PNP) of Angeles City. He took out his radio and called the Viper, the radio controller of the PNP of Angeles City. By the time Manarang completed the call, the vehicle had started to leave the place of the accident taking the general direction to the north. Manarang went to the location of the accident and found out that the vehicle had hit somebody. Manarang asked Cruz to look after the victim while he went back to the restaurant, rode on his motorcycle and chased the vehicle. During the chase he was able to make out the plate number of the vehicle as PMA 777. He called the Viper through the radio once again reporting that a vehicle heading north with plate number PMA 777 was involved in a hit and run accident. SPO2 Borja and SPO2 Miranda of Mobile 3 were able to intercept the vehicle by cutting into the latters path forcing it to stop. SPO2 Miranda went to the vehicle with plate number PMA 777 and instructed its driver to alight. The driver rolled down the window and put his head out while raising both his hands. They recognized the driver as Robin C. Padilla. SPO2 Miranda told Padilla to alight to which Padilla complied. Padilla was wearing a short leather jacket such that when he alighted with both his hands raised, a gun tucked on the left side of his waist was revealed, its butt protruding. SPO2 Borja made the move to confiscate the gun but Padilla held the formers hand alleging that the gun was covered by legal papers. SPO2 Borja disarmed Padilla and told the latter about the hit and run incident. Padilla, however, arrogantly denied his misdeed and, instead, played with the crowd by holding their hands with one hand and pointing to SPO2 Borja with his right hand saying iyan, kinuha ang baril ko. Because Padillas jacket was short, his gesture exposed a long magazine of an armalite rifle tucked in his back right pocket. SPO Mercado saw this and so when Padilla turned around as he was talking and proceeding to his vehicle, Mercado confiscated the magazine from Padilla. Suspecting that Padilla could also be carrying a rifle inside the vehicle since he had a magazine, SPO2 Mercado prevented Padilla from going back to his vehicle by opening himself the door of Padillas vehicle. He saw a baby armalite rifle lying horizontally at the front by the drivers seat. It had a long magazine filled with live bullets in a semi-automatic mode. He asked Padilla for the papers covering the rifle and Padilla answered angrily that they were at his home. SPO Mercado modified the arrest of Padilla by including as its

ground illegal possession of firearms. SPO Mercado then read to appellant his constitutional rights. The police officers brought Padilla to the Traffic Division at Jake Gonzales Boulevard where Padilla voluntarily surrendered a third firearm, a pietro berreta pistol with a single round in its chamber and a magazine loaded with 7 other live bullets. Padilla also voluntarily surrendered a black bag containing two additional long magazines and one short magazine. Padilla was correspondingly charged on 3 December 1992, before the Regional Trial Court (RTC) of Angeles City with illegal possession of firearms and ammunitions ([1] One .357 Caliber revolver, Smith and Wesson, SN-32919 with 6 live ammunitions; [2] one M-16 Baby Armalite rifle, SN-RP 131120 with 4 long and 1 short magazine with ammunitions; [3] one .380 Pietro Beretta, SN-A 35723 Y with clip and 8 ammunitions; and [4] Six additional live double action ammunitions of . 38 caliber revolver. ) under PD 1866. The lower court then ordered the arrest of Padilla, but granted his application for bail. During the arraignment on 20 January 1993, a plea of not guilty was entered for Padilla after he refused, upon advice of counsel, to make any plea. Padilla waived in writing his right to be present in any and all stages of the case. After trial, Angeles City RTC Judge David Rosete rendered judgment dated 25 April 1994 convicting Padilla of the crime charged and sentenced him to an indeterminate penalty from 17 years, 4 months and 1 day of reclusion temporal as minimum, to 21 years of reclusion perpetua, as maximum. Padilla filed his notice of appeal on 28 April 1994. Pending the appeal in the Court of Appeals, the SolicitorGeneral, convinced that the conviction shows strong evidence of guilt, filed on 2 December 1994 a motion to cancel Padillas bail bond. The resolution of this motion was incorporated in the appellate courts decision sustaining Padillas conviction. Padilla received a copy of this decision on 26 July 1995. On 9 August 1995 he filed a motion for reconsideration (and to recall the warrant of arrest) but the same was denied by the appellate court in its 20 September 1995 Resolution. On 28 September 1995, Padilla filed the petition for review on certiorari with application for bail followed by two supplemental petitions filed by different counsels, a second supplemental petition and an urgent motion for the separate resolution of his application for bail. Issue: Whether the firearms and ammunition confiscated during a warrantless search and seizure, especially the baby armalite, are admissible as evidence against Robin Padilla. Held: The 5 well-settled instances when a warrantless search and seizure of property is valid, are as follows: (1) warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence; (2) Seizure of evidence in plain view, the elements of which are: (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; (3) Search of a moving vehicle. 49 Highly regulated by the government, the vehicles inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity; (4) consented warrantless search; and (5) customs search. In conformity with the trial courts observation, it indeed appears that the authorities stumbled upon Padillas firearms and ammunitions without even undertaking any active search which, as it is commonly understood, is a prying into hidden places for that which is concealed. The seizure of the Smith & Wesson revolver and an M-16 rifle magazine was justified for they came within

plain view of the policemen who inadvertently discovered the revolver and magazine tucked in Padillas waist and back pocket respectively, when he raised his hands after alighting from his Pajero. The same justification applies to the confiscation of the M-16 armalite rifle which was immediately apparent to the policemen as they took a casual glance at the Pajero and saw said rifle lying horizontally near the drivers seat. Thus it has been held that When in pursuing an illegal action or in the commission of a criminal offense, the police officers should happen to discover a criminal offense being committed by any person, they are not precluded from performing their duties as police officers for the apprehension of the guilty person and the taking of the corpus delicti. Objects whose possession are prohibited by law inadvertently found in plain view are subject to seizure even without a warrant. With respect to the Berreta pistol and a black bag containing assorted magazines, Padilla voluntarily surrendered them to the police. This latter gesture of Padilla indicated a waiver of his right against the alleged search and seizure, and that his failure to quash the information estopped him from assailing any purported defect. Even assuming that the firearms and ammunitions were products of an active search done by the authorities on the person and vehicle of Padilla, their seizure without a search warrant nonetheless can still be justified under a search incidental to a lawful arrest (first instance). Once the lawful arrest was effected, the police may undertake a protective search of the passenger compartment and containers in the vehicle which are within Padillas grabbing distance regardless of the nature of the offense. This satisfied the two-tiered test of an incidental search: (i) the item to be searched (vehicle) was within the arrestees custody or area of immediate control and (ii) the search was contemporaneous with the arrest. The products of that search are admissible evidence not excluded by the exclusionary rule. Another justification is a search of a moving vehicle (third instance). In connection therewith, a warrantless search is constitutionally permissible when, as in this case, the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender (like Padilla with respect to the hit and run) or the contents or cargo of the vehicle are or have been instruments or the subject matter or the proceeds of some criminal offense. G.R. No. 120431 April 1, 1998 RODOLFO ESPANO, accused-petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. ROMERO, J.: This is a petition for review of the decision of the Court of Appeals in CA-G.R. CR No. 13976 dated January 16, 1995, 1 which affirmed in toto the judgment of the Regional Trial Court of Manila, Branch 1, convincing petitioner Rodolfo Espano for violation of Article II, Section 8 of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act. Petitioner was charged under the following information: That on or about July 14, 1991, in the City of Manila, Philippines, the said accused not being authorized by law to possess or use any prohibited drug, did then and there willfully, unlawfully and knowingly have in his possession and under his custody and control twelve (12) plastic cellophane (bags) containing crushed flowering tops, marijuana weighing 5.5 grams which is a prohibited drug. Contrary to law. 2

The evidence for the prosecution, based on the testimony of Pat. Romeo Pagilagan, shows that on July 14, 1991, at about 12:30 a.m., he and other police officers, namely, Pat. Wilfredo Aquino, Simplicio Rivera, and Erlindo Lumboy of the Western Police District (WPD), Narcotics Division went to Zamora and Pandacan Streets, Manila to confirm reports of drug pushing in the area. They saw petitioner selling "something" to another person. After the alleged buyer left, they approached petitioner, identified themselves as policemen, and frisked him. The search yielded two plastic cellophane tea bags of marijuana. When asked if he had more marijuana, he replied that there was more in his house. The policemen went to his residence where they found ten more cellophane tea bags of marijuana. Petitioner was brought to the police headquarters where he was charged with possession of prohibited drugs. On July 24, 1991, petitioner posted bail 3 and the trial court issued his order of release on July 29, 1991. 4 Annabelle Alip, forensic chemist of the WPD Criminal Investigation Laboratory Section, testified that the articles sent to her by Pat. Wilfredo Aquino regarding the apprehension of a certain Rodolfo Espano for examination tested positive for marijuana, with a total weight of 5.5 grams. By way of defense, petitioner testified that on said evening, he was sleeping in his house and was awakened only when the policemen handcuffed him. He alleged that the policemen were looking for his brother-in-law Lauro, and when they could not find the latter, he was instead brought to the police station for investigation and later indicted for possession of prohibited drugs. His wife Myrna corroborated his story. The trial court rejected petitioner's, defense as a "mere afterthought" and found the version of the prosecution "more credible and trustworthy." Thus, on August 14, 1992, the trial court rendered a decision, convicting petitioner of the crime charged, the dispositive portion of which reads: WHEREFORE there being proof beyond reasonable doubt, the court finds the accused Rodolfo Espano y Valeria guilty of the crime of violation of Section 8, Article II, in relation to Section 2 (e-L) (I) of Republic Act No. 6425 as amended by Batas Pambansa Blg. 179, and pursuant to law hereby sentences him to suffer imprisonment of six (6) years and one (1) day to twelve (12) years and to pay a fine of P6,000.00 with subsidiary imprisonment in case of default plus costs. The marijuana is declared forfeited in favor of government and shall be turned over to the Dangerous Drugs Board without delay. SO ORDERED. 5 Petitioner appealed the decision to the Court of Appeals. The appellate court, however, affirmed the decision of the trial court in toto. Hence, this petition. Petitioner contends that the trial and appellate courts erred in convicting him on the basis of the following: (a) the pieces of evidence seized were inadmissible; (b) the superiority of his constitutional right to be presumed innocent over the doctrine of presumption of regularity, (c) he was denied the constitutional right of confrontation and to compulsory process; and (d) his conviction was based on evidence which was irrelevant and not properly identified. After a careful examination of the records of the case, this Court finds no compelling reason sufficient to reverse the decisions of the trial and appellate courts. First, it is a well settled doctrine that findings of trial courts on the credibility of witnesses deserve a high degree of respect. Having observed the deportment of witnesses during the trial, the trial

judge is in a better position to determine the issue of credibility and, thus, his findings will not be disturbed during appeal in the absence of any clear showing that he had overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which could have altered the conviction of the appellants. 6 In this case, the findings of the trial court that the prosecution witnesses were more credible than those of the defense must stand. Petitioner failed to show that Pat. Pagilagan, in testifying against him, was motivated by reasons other than his duty to curb drug abuse and had any intent to falsely impute to him such a serious crime as possession of prohibited drugs. In the absence of such ill motive, the presumption of regularity in the performance of his official duty must prevail. In People v. Velasco, 7 this Court reiterated the doctrine of presumption of regularity in the performance of official duty which provides: . . . Appellant failed to establish that Pat. Godoy and the other members of the buy-bust team are policemen engaged in mulcting or other unscrupulous activities who were motivated either by the desire to extort money or exact personal vengeance, or by sheer whim and caprice, when they entrapped her. And in the absence of proof of any intent on the part of the police authorities to falsely impute such a serious crime against appellant, as in this case, the presumption of regularity in the performance of official duty, . . . , must prevail over the self-serving and uncorroborated claim of appellant that she had been framed. 8 Furthermore, the defense set up by petitioner does not deserve any consideration. He simply contended that he was in his house sleeping at the time of the incident. This Court has consistently held that alibi is the weakest of all defenses; and for it to prosper, the accused has the burden of proving that he was not at the scene of the crime at the time of its commission and that it was physically impossible for him to be there. Moreover, the "claim of a 'frame-up', like alibi, is a defense that has been invariably viewed by the Court with disfavor for it can just as easily be concocted but difficult to prove, and is a common and standard line of defense in most prosecutions arising from violations of the Dangerous Drugs Act." 9 No clear and convincing evidence was presented by petitioner to prove his defense of alibi. Second, petitioner contends that the prosecution's failure to present the alleged informant in court cast a reasonable doubt which warrants his acquittal. This is again without merit, since failure of the prosecution to produce the informant in court is of no moment especially when he is not even the best witness to establish the fact that a buy-bust operation had indeed been conducted. In this case, Pat. Pagilagan, one of the policemen who apprehended petitioner, testified on the actual incident of July 14, 1991, and identified him as the one they caught in possession of prohibited drugs. Thus, We find that the prosecution had satisfactorily proved its case against appellants. There is no compelling reason for us to overturn the finding of the trial court that the testimony of Sgt. Gamboa, the lone witness for the prosecution, was straightforward spontaneous and convincing. The testimony of a sole witness, if credible and positive and satisfies the court beyond reasonable doubt, is sufficient to convict. 10 Thus on the basis of Pat. Pagilagan's testimony, the prosecution was able to prove that petitioner indeed committed the crime charged; consequently, the finding of conviction was proper. Lastly, the issue on the admissibility of the marijuana seized should likewise be ruled upon. Rule 113 Section 5(a) of the Rules of Court provides:

A peace officer or a private person may, without a warrant, arrest a person: a. when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; xxx xxx xxx Petitioner's arrest falls squarely under the aforecited rule. He was caught in flagranti as a result of a buy-bust operation conducted by police officers on the basis of information received regarding the illegal trade of drugs within the area of Zamora and Pandacan Streets, Manila. The police officer saw petitioner handing over something to an alleged buyer. After the buyer left, they searched him and discovered two cellophanes of marijuana. His arrest was, therefore, lawful and the two cellophane bags of marijuana seized were admissible in evidence, being the fruits of the crime. As for the ten cellophane bags of marijuana found at petitioner's residence, however, the same are inadmissible in evidence. The 1987 Constitution guarantees freedom against unreasonable searches and seizures under Article III, Section 2 which 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. An exception to the said rule is a warrantless search incidental to a lawful arrest for dangerous weapons or anything which may be used as proof of the commission of an offense. 11 It may extend beyond the person of the one arrested to include the premises or surroundings under his immediate control. In this case, the ten cellophane bags of marijuana seized at petitioner's house after his arrest at Pandacan and Zamora Streets do not fall under the said exceptions. In the case of People v. Lua, 12 this Court held: As regards the brick of marijuana found inside the appellant's house, the trial court correctly ignored it apparently in view of its inadmissibility. While initially the arrest as well as the body search was lawful, the warrantless search made inside the appellant's house became unlawful since the police operatives were not armed with a search warrant. Such search cannot fall under "search made incidental to a lawful arrest," the same being limited to body search and to that point within reach or control of the person arrested, or that which may furnish him with the means of committing violence or of escaping. In the case at bar, appellant was admittedly outside his house when he was arrested. Hence, it can hardly be said that the inner portion of his house was within his reach or control. The articles seized from petitioner during his arrest were valid under the doctrine of search made incidental to a lawful arrest. The warrantless search made in his house, however, which yielded ten cellophane bags of marijuana became unlawful since the police officers were not armed with a search warrant at the time. Moreover, it was beyond the reach and control of petitioner. In sum, this Court finds petitioner Rodolfo Espano guilty beyond reasonable doubt of violating Article II, Section 8, in relation to Section 2 (e-L) (I) of Republic Act No. 6425, as amended. Under the said provision, the penalty imposed is six years and one day to twelve years and a fine ranging from six thousand to twelve thousand pesos. With the passage of Republic Act No. 7659,

which took effect on December 31, 1993, the imposable penalty shall now depend on the quantity of drugs recovered. Under the provisions of Republic Act No. 7629, Section 20, and as interpreted in People v. Simon 13 and People v. Lara, 14 if the quantity of marijuana involved is less than 750 grams, the imposable penalty ranges from prision correccional to reclusion temporal. Taking into consideration that petitioner is not a habitual delinquent, the amendatory provision is favorable to him and the quantity of marijuana involved is less than 750 grams, the penalty imposed under Republic Act No. 7659 should be applied. There being no mitigating nor aggravating circumstances, the imposable penalty shall be prision correccional in its medium period. Applying the Indeterminate Sentence Law, the maximum penalty shall be taken from the medium period of prision correccional, which is two (2) years, four (4) months and one (1) day to four (4) years and two (2) months, while the minimum shall be taken from the penalty next lower in degree, which is one (1) month and one (1) day to six (6) months of arresto mayor. WHEREFORE, the instant petition is hereby DENIED. The decision of the Court of Appeals in C.A.-G.R. CR No. 13976 dated January 16, 1995 is AFFIRMED with the MODIFICATION that petitioner Rodolfo Espano is sentenced to suffer an indeterminate penalty of TWO (2) months and ONE (1) day of arresto mayor, as minimum to TWO (2) years, FOUR (4) months and ONE (1) day of prision correccional, as maximum. SO ORDERED. Narvasa, C.J., Kapunan and Purisima, JJ., concur. PEOPLE V. MENGOTE [210 SCRA 174; G.R. NO. 87059; 22 JUN 1992] Friday, February 06, 2009 Posted by Coffeeholic Writes Labels: Case Digests, Political Law Facts: The Western Police District received a telephone call from an informer that there were three suspicious looking persons at the corner of Juan Luna and North Bay Boulevard in Tondo, Manila. A surveillance team of plainclothesmen was forthwith dispatched to the place. The patrolmen saw two men looking from side to side, one of whom holding his abdomen. They approached the persons and identified themselves as policemen, whereupon the two tried to run but unable to escape because the other lawmen surrounded them. The suspects were then searched. One of them the accused-appellant was found with a .38 caliber with live ammunitions in it, while his companion had a fan knife. The weapons were taken from them and they were turned over to the police headquarters for investigation. An information was filed before the RTC convicting the accused of illegal possession of firearm arm. A witness testified that the weapon was among the articles stolen at his shop, which he reported to the police including the revolver. For his part, Mengote made no effort to prove that he owned the fire arm or that he was licensed to possess it but instead, he claimed that the weapon was planted on him at the time of his arrest. He was convicted for violation of P.D.1866 and was sentenced to reclusion perpetua. In his appeal he pleads that the weapon was not admissible as evidence against him because it had been illegally seized and therefore the fruit of a poisonous tree. Issue: Whether or not the warrantless search and arrest was illegal.

Held: An evidence obtained as a result of an illegal search and seizure inadmissible in any proceeding for any purpose as provided by Art. III sec 32 of the Constitution. Rule 113 sec.5 of the Rules of Court, provides arrest without warrant lawful when: (a) the person to be arrested has committed, is actually committing, or is attempting to commit an offense, (b) when the offense in fact has just been committed, and he has personal knowledge of the facts indicating the person arrested has committed it and (c) the person to be arrested has escaped from a penal establishment or a place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. These requirements have not been established in the case at bar. At the time of the arrest in question, the accused appellant was merely looking from side to side and holding his abdomen, according to the arresting officers themselves. There was apparently no offense that has just been committed or was being actually committed or at least being attempt by Mengote in their presence. Moreover a person may not be stopped and frisked in a broad daylight or on a busy street on unexplained suspicion. Judgment is reversed and set aside. Accused-appellant is acquitted.

Manalili v. CA [GR 113447, 9 October 1997] Third Division, Panganiban (J): 4 concur Facts: At about 2:10 p.m. of 11 April 1988, policemen from the Anti-Narcotics Unit of the Kalookan City Police Station were conducting a surveillance along A. Mabini street, Kalookan City, in front of the Kalookan City Cemetery. The policemen were Pat. Romeo Espiritu and Pat. Anger Lumabas and a driver named Arnold Enriquez was driving a Tamaraw vehicle which was the official car of the Police Station of Kalookan City. The surveillance was being made because of information that drug addicts were roaming the area in front of the Kalookan City Cemetery. Upon reaching the Kalookan City Cemetery, the policemen alighted from their vehicle. They then chanced upon a male person in front of the cemetery who appeared high on drugs. The male person was observed to have reddish eyes and to be walking in a swaying manner. When this male person tried to avoid the policemen, the latter approached him and introduced themselves as police officers. The policemen then asked the male person what he was holding in his hands. The male person tried to resist. Pat. Romeo Espiritu asked the male person if he could see what said male person had in his hands. The latter showed the wallet and allowed Pat. Romeo Espiritu to examine the same. Pat. Espiritu took the wallet and examined it. He found suspected crushed marijuana residue inside. He kept the wallet and its marijuana contents. The male person was then brought to the Anti-Narcotics Unit of the Kalookan City Police Headquarters and was turned over to Cpl. Wilfredo Tamondong for investigation. Pat. Espiritu also turned over to Cpl. Tamondong the confiscated wallet and its suspected marijuana contents. The man turned out to be Alain Manalili y Dizon. On 11 April 1988, Manalili was charged by Assistant Caloocan City Fiscal E. Juan R. Bautista with violation of Section 8, Article II of Republic Act 6425. Upon his arraignment on 21 April 1988, Manalili pleaded not guilty to the charge. With the agreement of the public prosecutor, Manalili was released after filing a P10,000.00 bail bond. After trial in due course, the Regional Trial Court of Caloocan City, Branch 124, acting as a Special Criminal Court, rendered

on 19 May 1989 a decision convicting appellant of illegal possession of marijuana residue. Manalili remained on provisional liberty. Atty. Benjamin Razon, counsel for the defense, filed a Notice of Appeal dated 31 May 1989. On 19 April 1993, the Court of Appeals denied the appeal and affirmed the trial court. The appellate court denied reconsideration via its Resolution dated 20 January 1994. Manalili filed a petition for review on certiorari before the Supreme Court. Issue: Whether a search and seizure could be effected without necessarily being preceded by an arrest. Held: In the landmark case of Terry vs. Ohio, a stop-and-frisk was defined as the vernacular designation of the right of a police officer to stop a citizen on the street, interrogate him, and pat him for weapon(s). In allowing such a search, the interest of effective crime prevention and detection allows a police officer to approach a person, in appropriate circumstances and manner, for purposes of investigating possible criminal behavior even though there is insufficient probable cause to make an actual arrest. What justified the limited search was the more immediate interest of the police officer in taking steps to assure himself that the person with whom he was dealing was not armed with a weapon that could unexpectedly and fatally be used against him. It did not, however, abandon the rule that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure, excused only by exigent circumstances. In Philippine jurisprudence, the general rule is that a search and seizure must be validated by a previously secured judicial warrant; otherwise, such search and seizure is unconstitutional and subject to challenge. Section 2, Article III of the 1987 Constitution, gives this guarantee. This right, however, is not absolute. The recent case of People vs. Lacerna enumerated five recognized exceptions to the rule against warrantless search and seizure, viz.: (1) search incidental to a lawful arrest, (2) search of moving vehicles, (3) seizure in plain view, (4) customs search, and (5) waiver by the accused themselves of their right against unreasonable search and seizure. In People vs. Encinada, the Court further explained that in these cases, the search and seizure may be made only with probable cause as the essential requirement. Stop-and-frisk has already been adopted as another exception to the general rule against a search without a warrant. In Posadas vs. Court of Appeals, the Court held that there were many instances where a search and seizure could be effected without necessarily being preceded by an arrest, one of which was stopand-frisk. To require the police officers to search the bag only after they had obtained a search warrant might prove to be useless, futile and much too late under the circumstances. In such a situation, it was reasonable for a police officer to stop a suspicious individual briefly in order to determine his identity or to maintain the status quo while obtaining more information, rather than to simply shrug his shoulders and allow a crime to occur. Herein, Patrolman Espiritu and his companions observed during their surveillance that Manalili had red eyes and was wobbling like a drunk along the Caloocan City Cemetery, which according to police information was a popular hangout of drug addicts. From his experience as a member of the Anti-Narcotics Unit of the Caloocan City Police, such suspicious behavior was characteristic of drug addicts who were high. The policemen therefore had sufficient reason to stop Manalili to investigate if he was actually high on drugs. During such investigation, they found marijuana in his possession. The search was valid, being akin to a stop-and-frisk. PEOPLE VS. MUSA [217 SCRA 597; G.,R. NO. 96177; 27 JAN 1993] Friday, February 06, 2009 Posted by Coffeeholic Writes Labels: Case Digests, Political Law

Facts: A civilian informer gave the information that Mari Musa was engaged in selling marijuana in Suterville, Zamboanga City. Sgt. Ani was ordered by NARCOM leader T/Sgt. Belarga, to conduct a surveillance and test buy on Musa. The civilian informer guided Ani to Musas house and gave the description of Musa. Ani was able to buy one newspaper-wrapped dried marijuana for P10.00. The next day, a buy-bust was planned. Ani was to raise his right hand if he successfully buys marijuana from Musa. As Ani proceeded to the house, the NARCOM team positioned themselves about 90 to 100 meters away. From his position, Belarga could see what was going on. Musa came out of the house and asked Ani what he wanted. Ani said he wanted more marijuana and gave Musa the P20.00 marked money. Musa went into the house and came back, giving Ani two newspaper wrappers containing dried marijuana. Ani opened and inspected it. He raised his right hand as a signal to the other NARCOM agents, and the latter moved in and arrested Musa inside the house. Belarga frisked Musa in the living room but did not find the marked money (gave it to his wife who slipped away). T/Sgt. Belarga and Sgt. Lego went to the kitchen and found a cellophane colored white and stripe hanging at the corner of the kitchen. They asked Musa about its contents but failed to get a response. So they opened it and found dried marijuana leaves inside. Musa was then placed under arrest. Issue: Whether or Not the seizure of the plastic bag and the marijuana inside it is unreasonable, hence, inadmissible as evidence. Held: Yes. It constituted unreasonable search and seizure thus it may not be admitted as evidence. The warrantless search and seizure, as an incident to a suspects lawful arrest, may extend beyond the person of the one arrested to include the premises or surroundings under his immediate control. Objects in the plain view of an officer who has the right to be in the position to have that view are subject to seizure and may be presented as evidence. The plain view doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. It will not justify the seizure of the object where the incriminating nature of the object is not apparent from the plain view of the object. In the case at bar, the plastic bag was not in the plain view of the police. They arrested the accused in the living room and moved into the kitchen in search for other evidences where they found the plastic bag. Furthermore, the marijuana inside the plastic bag was not immediately apparent from the plain view of said object. Therefore, the plain view does not apply. The plastic bag was seized illegally and cannot be presented in evidence pursuant to Article III Section 3 (2) of the Constitution. People vs. Salanguit [GR 133254-55, 19 April 2001] Second Division, Mendoza (J): 4 concur

Facts: On 26 December 1995, Sr. Insp. Aguilar applied for a warrant in the Regional Trial Court, Branch 90, Dasmariias, Cavite, to search the residence of Robert Salanguit y Ko on Binhagan St., Novaliches, Quezon City. He presented as his witness SPO1 Edmund Badua, who testified that as a poseur-buyer, he was able to purchase 2.12 grams of shabu from Salanguit. The sale took place in Salunguits room, and Badua saw that the shabu was taken by Salunguit from a cabinet inside his room. The application was granted, and a search warrant was later issued by Presiding Judge Dolores L. Espaol. At about 10:30 p.m. of said day, a group of about 10 policemen, along with one civilian informer, went to the residence of Salunguit to serve the warrant. The police operatives knocked on Salanguits door, but nobody opened it. They heard people inside the house, apparently panicking. The police operatives then forced the door open and entered the house. After showing the search warrant to the occupants of the house, Lt. Cortes and his group started searching the house. They found 12 small heat-sealed transparent plastic bags containing a white crystalline substance, a paper clip box also containing a white crystalline substance, and two bricks of dried leaves which appeared to be marijuana wrapped in newsprint having a total weight of approximately 1,255 grams. A receipt of the items seized was prepared, but Salanguit refused to sign it. After the search, the police operatives took Salanguit with them to Station 10, EDSA, Kamuning, Quezon City, along with the items they had seized. PO3 Duazo requested a laboratory examination of the confiscated evidence. The white crystalline substance with a total weight of 2.77 grams and those contained in a small box with a total weight of 8.37 grams were found to be positive for methamphetamine hydrochloride. On the other hand, the two bricks of dried leaves, one weighing 425 grams and the other 850 grams, were found to be marijuana. Charges against Roberto Salanguit y Ko for violations of Republic Act (RA) 6425, i.e. for possession of shabu and marijuana, (Criminal Cases Q-95-64357 and Q-95-64358, respectively) were filed on 28 December 1995. After hearing, the trial court rendered its decision, convicting Salanguit in Criminal Cases Q-95-64357 and Q-95-64358 for violation of Section 16 and 8, respectively, RA 6425, and sentencing him to suffer an indeterminate sentence with a minimum of 6 months of arresto mayor and a maximum of 4 years and 2 months of prision correccional, and reclusion perpetua and to pay a fine of P700,000.00, respectively. Salanguit appealed; contesting his conviction on the grounds that (1) the admissibility of the shabu allegedly recovered from his residence as evidence against him on the ground that the warrant used in obtaining it was invalid; (2) the admissibility in evidence of the marijuana allegedly seized from Salanguit to the plain view doctrine; and (3) the employment of unnecessary force by the police in the execution of the warrant. Issue: Whether the warrant was invalid for failure of providing evidence to support the seizure of drug paraphernalia, and whether the marijuana may be included as evidence in light of the plain view doctrine. Held: The warrant authorized the seizure of undetermined quantity of shabu and drug paraphernalia. Evidence was presented showing probable cause of the existence of methamphetamine hydrochloride or shabu. The fact that there was no probable cause to support the application for the seizure of drug paraphernalia does not warrant the conclusion that the search warrant is void. This fact would be material only if drug paraphernalia was in fact seized by the police. The fact is that none was taken by virtue of the search warrant issued. If at all, therefore, the search warrant is void only insofar as it authorized the seizure of drug paraphernalia, but it is valid as to the seizure of methamphetamine hydrochloride as to which evidence was

presented showing probable cause as to its existence. In sum, with respect to the seizure of shabu from Salanguits residence, Search Warrant 160 was properly issued, such warrant being founded on probable cause personally determined by the judge under oath or affirmation of the deposing witness and particularly describing the place to be searched and the things to be seized. With respect to, and in light of the plain view doctrine, the police failed to allege the time when the marijuana was found, i.e., whether prior to, or contemporaneous with, the shabu subject of the warrant, or whether it was recovered on Salanguits person or in an area within his immediate control. Its recovery, therefore, presumably during the search conducted after the shabu had been recovered from the cabinet, as attested to by SPO1 Badua in his deposition, was invalid. Thus, the Court affirmed the decision as to Criminal Case Q-95-64357 only. Caballes vs. Court of Appeals [GR 136292, 15 January 2002] First Division, Puno (J): 4 concur Facts: About 9:15 p.m. of 28 June 1989, Sgt. Victorino Noceja and Pat. Alex de Castro, while on a routine patrol in Barangay Sampalucan, Pagsanjan, Laguna, spotted a passenger jeep unusually covered with kakawati leaves. Suspecting that the jeep was loaded with smuggled goods, the two police officers flagged down the vehicle. The jeep was driven by Rudy Caballes y Taio. When asked what was loaded on the jeep, he did not answer, but he appeared pale and nervous. With Caballes consent, the police officers checked the cargo and they discovered bundles of 3.08 mm aluminum/galvanized conductor wires exclusively owned by National Power Corporation (NAOCOR). The conductor wires weighed 700 kilos and valued at P55,244.45. Noceja asked Caballes where the wires came from and Caballes answered that they came from Cavinti, a town approximately 8 kilometers away from Sampalucan. Thereafter, Caballes and the vehicle with the high-voltage wires were brought to the Pagsanjan Police Station. Danilo Cabale took pictures of Caballes and the jeep loaded with the wires which were turned over to the Police Station Commander of Pagsanjan, Laguna. Caballes was incarcerated for 7 days in the Municipal jail. Caballes was charged with the crime of theft in an information dated 16 October 1989. During the arraignment, Caballes pleaded not guilty and hence, trial on the merits ensued. On 27 April 1993, Regional Trial Court of Santa Cruz, Laguna rendered judgment, finding Caballes, guilty beyond reasonable doubt of the crime of theft. In a resolution dated 9 November 1998, the trial court denied Caballes motion for reconsideration. The Court of Appeals affirmed the trial court decision on 15 September 1998. Caballes appealed the decision by certiorari. Issue: Whether Caballes passive submission to the statement of Sgt. Noceja that the latter will look at the contents of his vehicle and he answered in the positive be considered as waiver on Caballes part on warrantless search and seizure. Held: Enshrined in our Constitution is the inviolable right of the people to be secure in their persons and properties against unreasonable searches and seizures, as defined under Section 2, Article III thereof. The exclusionary rule under Section 3(2), Article III of the Constitution bars the admission of evidence obtained in violation of such right. The constitutional proscription against warrantless searches and seizures is not absolute but admits of certain exceptions, namely: (1) warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence; (2) seizure of evidence in plain view; (3) search of moving vehicles; (4) consented warrantless search; (5) customs search; (6) stop and frisk situations (Terry search); and (7) exigent and emergency circumstances. In cases where warrant is necessary, the steps prescribed by the Constitution and reiterated in the Rules of Court must be complied

with. In the exceptional events where warrant is not necessary to effect a valid search or seizure, or when the latter cannot be performed except without a warrant, what constitutes a reasonable or unreasonable search or seizure is purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched and the character of the articles procured. It is not controverted that the search and seizure conducted by the police officers was not authorized by a search warrant. The mere mobility of these vehicles, however, does not give the police officers unlimited discretion to conduct indiscriminate searches without warrants if made within the interior of the territory and in the absence of probable cause. Herein, the police officers did not merely conduct a visual search or visual inspection of Caballes vehicle. They had to reach inside the vehicle, lift the kakawati leaves and look inside the sacks before they were able to see the cable wires. It thus cannot be considered a simple routine check. Also, Caballes vehicle was flagged down because the police officers who were on routine patrol became suspicious when they saw that the back of the vehicle was covered with kakawati leaves which, according to them, was unusual and uncommon. The fact that the vehicle looked suspicious simply because it is not common for such to be covered with kakawati leaves does not constitute probable cause as would justify the conduct of a search without a warrant. In addition, the police authorities do not claim to have received any confidential report or tipped information that petitioner was carrying stolen cable wires in his vehicle which could otherwise have sustained their suspicion. Philippine jurisprudence is replete with cases where tipped information has become a sufficient probable cause to effect a warrantless search and seizure. Unfortunately, none exists in the present case. Further, the evidence is lacking that Caballes intentionally surrendered his right against unreasonable searches. The manner by which the two police officers allegedly obtained the consent of Caballes for them to conduct the search leaves much to be desired. When Caballes vehicle was flagged down, Sgt. Noceja approached Caballes and told him I will look at the contents of his vehicle and he answered in the positive. By uttering those words, it cannot be said the police officers were asking or requesting for permission that they be allowed to search the vehicle of Caballes. For all intents and purposes, they were informing, nay, imposing upon Caballes that they will search his vehicle. The consent given under intimidating or coercive circumstances is no consent within the purview of the constitutional guaranty. In addition, in cases where the Court upheld the validity of consented search, it will be noted that the police authorities expressly asked, in no uncertain terms, for the consent of the accused to be searched. And the consent of the accused was established by clear and positive proof. Neither can Caballes passive submission be construed as an implied acquiescence to the warrantless search. Casting aside the cable wires as evidence, the remaining evidence on record are insufficient to sustain Caballes conviction. His guilt can only be established without violating the constitutional right of the accused against unreasonable search and seizure. Malacat vs. Court of Appeals [GR 123595, 12 December 1997] En Banc, Davide Jr. (J): 11 concur Facts: On 27 August 1990, at about 6:30 p.m., allegedly in response to bomb threats reported seven days earlier, Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated National Police, Police Station No. 3, Quiapo, Manila, was on foot patrol with three other police officers (all of them in uniform) along Quezon Boulevard, Quiapo, Manila, near the

Mercury Drug store at Plaza Miranda. They chanced upon two groups of Muslim-looking men, with each group, comprised of three to four men, posted at opposite sides of the corner of Quezon Boulevard near the Mercury Drug Store. These men were acting suspiciously with their eyes moving very fast. Yu and his companions positioned themselves at strategic points and observed both groups for about 30 minutes. The police officers then approached one group of men, who then fled in different directions. As the policemen gave chase, Yu caught up with and apprehended Sammy Malacat y Mandar (who Yu recognized, inasmuch as allegedly the previous Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw Malacat and 2 others attempt to detonate a grenade). Upon searching Malacat, Yu found a fragmentation grenade tucked inside the latters front waist line. Yus companion, police officer Rogelio Malibiran, apprehended Abdul Casan from whom a .38 caliber revolver was recovered. Malacat and Casan were then brought to Police Station 3 where Yu placed an X mark at the bottom of the grenade and thereafter gave it to his commander. Yu did not issue any receipt for the grenade he allegedly recovered from Malacat. On 30 August 1990, Malacat was charged with violating Section 3 of Presidential Decree 1866. At arraignment on 9 October 1990, petitioner, assisted by counsel de officio, entered a plea of not guilty. Malacat denied the charges and explained that he only recently arrived in Manila. However, several other police officers mauled him, hitting him with benches and guns. Petitioner was once again searched, but nothing was found on him. He saw the grenade only in court when it was presented. In its decision dated 10 February 1994 but promulgated on 15 February 1994, the trial court ruled that the warrantless search and seizure of Malacat was akin to a stop and frisk, where a warrant and seizure can be effected without necessarily being preceded by an arrest and whose object is either to maintain the status quo momentarily while the police officer seeks to obtain more information; and that the seizure of the grenade from Malacat was incidental to a lawful arrest. The trial court thus found Malacat guilty of the crime of illegal possession of explosives under Section 3 of PD 1866, and sentenced him to suffer the penalty of not less than 17 years, 4 months and 1 day of Reclusion Temporal, as minimum, and not more than 30 years of Reclusion Perpetua, as maximum. On 18 February 1994, Malacat filed a notice of appeal indicating that he was appealing to the Supreme Court. However, the record of the case was forwarded to the Court of Appeals (CA-GR CR 15988). In its decision of 24 January 1996, the Court of Appeals affirmed the trial court. Manalili filed a petition for review with the Supreme Court. Issue: Whether the search made on Malacat is valid, pursuant to the exception of stop and frisk. Held: The general rule as regards arrests, searches and seizures is that a warrant is needed in order to validly effect the same. The Constitutional prohibition against unreasonable arrests, searches and seizures refers to those effected without a validly issued warrant, subject to certain exceptions. As regards valid warrantless arrests, these are found in Section 5, Rule 113 of the Rules of Court. A warrantless arrest under the circumstances contemplated under Section 5(a) has been denominated as one in flagrante delicto, while that under Section 5(b) has been described as a hot pursuit arrest. Turning to valid warrantless searches, they are limited to the following: (1) customs searches; (2) search of moving vehicles; (3) seizure of evidence in plain view; (4) consent searches; (5) a search incidental to a lawful arrest; and (6) a stop and frisk. The concepts of a stop-and-frisk and of a search incidental to a lawful arrest must not be confused. These two types of warrantless searches differ in terms of the requisite quantum of proof before they may be validly effected and in their allowable scope. In a search incidental to a lawful arrest, as the

precedent arrest determines the validity of the incidental search. Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in light of the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on the part of Malacat, indicating that a crime had just been committed, was being committed or was going to be committed. Plainly, the search conducted on Malacat could not have been one incidental to a lawful arrest. On the other hand, while probable cause is not required to conduct a stop and frisk, it nevertheless holds that mere suspicion or a hunch will not validate a stop and frisk. A genuine reason must exist, in light of the police officers experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. Finally, a stop-and-frisk serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer. Here, there are at least three (3) reasons why the stop-and-frisk was invalid: First, there is grave doubts as to Yus claim that Malacat was a member of the group which attempted to bomb Plaza Miranda 2 days earlier. This claim is neither supported by any police report or record nor corroborated by any other police officer who allegedly chased that group. Second, there was nothing in Malacats behavior or conduct which could have reasonably elicited even mere suspicion other than that his eyes were moving very fast an observation which leaves us incredulous since Yu and his teammates were nowhere near Malacat and it was already 6:30 p.m., thus presumably dusk. Malacat and his companions were merely standing at the corner and were not creating any commotion or trouble. Third, there was at all no ground, probable or otherwise, to believe that Malacat was armed with a deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was discovered inside the front waistline of Malacat, and from all indications as to the distance between Yu and Malacat, any telltale bulge, assuming that Malacat was indeed hiding a grenade, could not have been visible to Yu. What is unequivocal then are blatant violations of Malacats rights solemnly guaranteed in Sections 2 and 12(1) of Article III of the Constitution. People vs. Aminnudin [GR L-74860, 6 July 1988] First Division, Cruz (J): 3 concur Facts: Idel Aminnudin y Ahni was arrested on 25 June 1984, shortly after disembarking from the M/V Wilcon 9 at about 8:30 p.m., in Iloilo City. The PC officers who were in fact waiting for him simply accosted him, inspected his bag and finding what looked liked marijuana leaves took him to their headquarters for investigation. The two bundles of suspect articles were confiscated from him and later taken to the NBI laboratory for examination. When they were verified as marijuana leaves, an information for violation of the Dangerous Drugs Act was filed against him. Later, the information was amended to include Farida Ali y Hassen, who had also been arrested with him that same evening and likewise investigated. Both were arraigned and pleaded not guilty. Subsequently, the fiscal filed a motion to dismiss the charge against Ali on the basis of a sworn statement of the arresting officers absolving her after a thorough investigation. The motion was granted, and trial proceeded only against Aminnudin, who was eventually convicted, and sentenced to life imprisonment plus a fine of P20,000.00.

Issue: Whether there was ample opportunity to obtain a warrant of arrest against Aminnudin, for alleged possession and transport of illegal drugs. Held: It is not disputed, and in fact it is admitted by the PC officers who testified for the prosecution, that they had no warrant when they arrested Aminnudin and seized the bag he was carrying. Their only justification was the tip they had earlier received from a reliable and regular informer who reported to them that Aminnudin was arriving in Iloilo by boat with marijuana. Their testimony varies as to the time they received the tip, one saying it was two days before the arrest (this was the declaration of the chief of the arresting team, Lt. Cipriano Querol, Jr.), another two weeks and a third weeks before June 25. There was no warrant of arrest or search warrant issued by a judge after personal determination by him of the existence of probable cause. Contrary to the averments of the government, Aminnudin was not caught in flagrante nor was a crime about to be committed or had just been committed to justify the warrantless arrest allowed under Rule 113 of the Rules of Court. Even expediency could not be invoked to dispense with the obtention of the warrant. The present case presented no urgency. From the conflicting declarations of the PC witnesses, it is clear that they had at least two days within which they could have obtained a warrant to arrest and search Aminnudin who was coming Iloilo on the M/V Wilcon 9. His name was known. The vehicle was identified. The date of its arrival was certain. And from the information they had received, they could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of Rights was ignored altogether because the PC lieutenant who was the head of the arresting team, had determined on his own authority that search warrant was not necessary. People vs. Aruta [GR 120915, 13 April 1998] Third Division, Romero (J): 3 concur Facts: On 13 December 1988, P/Lt. Abello was tipped off by his informant, known only as Benjie, that a certain Aling Rosa would be arriving from Baguio City the following day, with a large volume of marijuana. Acting on said tip, P/Lt. Abello assembled a team composed of P/Lt. Jose Domingo, Sgt. Angel Sudiacal, Sgt. Oscar Imperial, Sgt. Danilo Santiago and Sgt. Efren Quirubin. Said team proceeded to West Bajac-Bajac, Olongapo City at around 4:00 p.m. of 14 December 1988 and deployed themselves near the Philippine National Bank (PNB) building along Rizal Avenue and the Caltex gasoline station. Dividing themselves into two groups, one group, made up of P/Lt. Abello, P/Lt. Domingo and the informant posted themselves near the PNB building while the other group waited near the Caltex gasoline station. While thus positioned, a Victory Liner Bus with body number 474 and the letters BGO printed on its front and back bumpers stopped in front of the PNB building at around 6:30 p.m. of the same day from where two females and a male got off. It was at this stage that the informant pointed out to the team Aling Rosa who was then carrying a travelling bag. Having ascertained that Rosa Aruta y Menguin was Aling Rosa, the team approached her and introduced themselves as NARCOM agents. When P/Lt. Abello asked Aling Rosa about the contents of her bag, the latter handed it to the former. Upon inspection, the bag was found to contain dried marijuana leaves packed in a plastic bag marked Cash Katutak. The team confiscated the bag together with the Victory Liner bus ticket to which Lt. Domingo affixed his signature. Aruta was then brought to the NARCOM office for investigation where a Receipt of Property Seized was prepared for the confiscated marijuana leaves. Upon examination of the seized marijuana specimen at the PC/INP Crime Laboratory, Camp Olivas, Pampanga,

P/Maj. Marlene Salangad, a Forensic Chemist, prepared a Technical Report stating that said specimen yielded positive results for marijuana, a prohibited drug. Aruta was charged with violating Section 4, Article II of Republic Act 6425 or the Dangerous Drugs Act. Upon arraignment, she pleaded not guilty. Aruta claimed that immediately prior to her arrest, she had just come from Choice Theater where she watched the movie Balweg. While about to cross the road, an old woman asked her help in carrying a shoulder bag. In the middle of the road, Lt. Abello and Lt. Domingo arrested her and asked her to go with them to the NARCOM Office. After trial on the merits, the Regional Trial Court of Olongapo City convicted and sentenced her to suffer the penalty of life imprisonment and to pay a fine of P20,000.00 without subsidiary imprisonment in case of insolvency. Aruta appealed. Issue: Whether the plea of not guilty during Arutas arraigment effectly waived the nonadmissibility of the evidence acquired in the invalid warrantless search and seizure. Held: Articles which are the product of unreasonable searches and seizures are inadmissible as evidence pursuant to the doctrine pronounced in Stonehill v. Diokno. This exclusionary rule was later enshrined in Article III, Section 3(2) of the Constitution. From the foregoing, it can be said that the State cannot simply intrude indiscriminately into the houses, papers, effects, and most importantly, on the person of an individual. The constitutional provision guaranteed an impenetrable shield against unreasonable searches and seizures. As such, it protects the privacy and sanctity of the person himself against unlawful arrests and other forms of restraint. Therewithal, the right of a person to be secured against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. A statute, rule or situation which allows exceptions to the requirement of a warrant of arrest or search warrant must perforce be strictly construed and their application limited only to cases specifically provided or allowed by law. To do otherwise is an infringement upon personal liberty and would set back a right so basic and deserving of full protection and vindication yet often violated. While it may be argued that by entering a plea during arraignment and by actively participating in the trial, Aruta may be deemed to have waived objections to the illegality of the warrantless search and to the inadmissibility of the evidence obtained thereby, the same may not apply herein for the following reasons: (1) The waiver would only apply to objections pertaining to the illegality of the arrest as her plea of not guilty and participation in the trial are indications of her voluntary submission to the courts jurisdiction. 32 The plea and active participation in the trial would not cure the illegality of the search and transform the inadmissible evidence into objects of proof. The waiver simply does not extend this far. (2) Granting that evidence obtained through a warrantless search becomes admissible upon failure to object thereto during the trial of the case, records show that accusedappellant filed a Demurrer to Evidence and objected and opposed the prosecutions Formal Offer of Evidence. As held in People vs. Barros, waiver of the non-admissibility of the fruits of an invalid warrantless arrest and of a warrantless search and seizure is not casually to be presumed, if the constitutional right against unlawful searches and seizures is to retain its vitality for the protection of our people. In fine, there was really no excuse for the NARCOM agents not to procure a search warrant considering that they had more than 24 hours to do so. Obviously, this is again an instance of seizure of the fruit of the poisonous tree, hence illegal and inadmissible subsequently in evidence. The exclusion of such evidence is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizure. The non-exclusionary rule is contrary to the letter and spirit of the prohibition against unreasonable searches and seizures.

People v. Malmstedt [GR 91107, 19 June 1991] En Banc, Padilla (J): 8 concur, 1 on leave Facts: Mikael Malmstedt, a Swedish national, entered the Philippines for the 3rd time in December 1988 as a tourist. He had visited the country sometime in 1982 and 1985. In the evening of 7 May 1989, Malmstedt left for Baguio City. Upon his arrival thereat in the morning of the following day, he took a bus to Sagada and stayed in that place for 2 days. On 11 May 1989, Capt. Alen Vasco of NARCOM, stationed at Camp Dangwa, ordered his men to set up a temporary checkpoint at Kilometer 14, Acop, Tublay, Mountain Province, for the purpose of checking all vehicles coming from the Cordillera Region. The order to establish a checkpoint in the said area was prompted by persistent reports that vehicles coming from Sagada were transporting marijuana and other prohibited drugs. Moreover, information was received by the Commanding Officer of NARCOM, that same morning, that a Caucasian coming from Sagada had in his possession prohibited drugs. At about 1:30 pm, the bus where Malmstedt was riding was stopped. Sgt. Fider and CIC Galutan boarded the bus and announced that they were members of the NARCOM and that they would conduct an inspection. During the inspection, CIC Galutan noticed a bulge on Malmstedts waist. Suspecting the bulge on Malmstedts waist to be a gun, the officer asked for Malmstedts passport and other identification papers. When Malmstedt failed to comply, the officer required him to bring out whatever it was that was bulging on his waist, which was a pouch bag. When Malmstedt opened the same bag, as ordered, the officer noticed 4 suspicious-looking objects wrapped in brown packing tape, which turned out to contain hashish, a derivative of marijuana, when opened. Malmstedt stopped to get 2 travelling bags from the luggage carrier, each containing a teddy bear, when he was invited outside the bus for questioning. It was observed that there were also bulges inside the teddy bears which did not feel like foam stuffing. Malmstedt was then brought to the headquarters of the NARCOM at Camp Dangwa for further investigation. At the investigation room, the officers opened the teddy bears and they were found to also contain hashish. Representative samples were taken from the hashish found among the personal effects of Malmstedt and the same were brought to the PC Crime Laboratory for chemical analysis, which established the objects examined as hashish. Malmstedt claimed that the hashish was planted by the NARCOM officers in his pouch bag and that the 2 travelling bags were not owned by him, but were merely entrusted to him by an Australian couple whom he met in Sagada. He further claimed that the Australian couple intended to take the same bus with him but because there were no more seats available in said bus, they decided to take the next ride and asked Malmstedt to take charge of the bags, and that they would meet each other at the Dangwa Station. An information was filed against Malmstedt for violation of the Dangerous Drugs Act. During the arraignment, Malmstedt entered a plea of not guilty. After trial and on 12 October 1989, the trial court found Malmstedt guilty beyond reasonable doubt for violation of Section 4, Article II of RA 6425 and sentenced him to life imprisonment and to pay a fine of P20,000. Malmstedt sought reversal of the decision of the trial court. Issue: Whether the personal effects of Malmstedt may be searched without an issued warrant. Held: The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. However, where the search is made pursuant to a lawful arrest, there is no need to obtain a search warrant. A lawful arrest without a warrant may be made by a peace officer or a private person under the following circumstances. Section 5 provides that a peace officer or a private person may, without a warrant, arrest a person

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. Herein, Malmstedt was caught in flagrante delicto, when he was transporting prohibited drugs. Thus, the search made upon his personal effects falls squarely under paragraph (1) of the foregoing provisions of law, which allow a warrantless search incident to a lawful arrest. Papa vs. Mago [GR L-27360, 28 February 1968] En Banc, Zaldivar (J): 9 concur Facts: Martin Alagao, head of the counter-intelligence unit of the Manila Police Department, acting upon a reliable information received on 3 November 1966 to the effect that a certain shipment of personal effects, allegedly misdeclared and undervalued, would be released the following day from the customs zone of the port of Manila and loaded on two trucks, and upon orders of Ricardo Papa, Chief of Police of Manila and a duly deputized agent of the Bureau of Customs, conducted surveillance at gate 1 of the customs zone. When the trucks left gate 1 at about 4:30 p.m. of 4 November 1966, elements of the counter-intelligence unit went after the trucks and intercepted them at the Agrifina Circle, Ermita, Manila. The load of the two trucks, consisting of nine bales of goods, and the two trucks, were seized on instructions of the Chief of Police. Upon investigation, a person claimed ownership of the goods and showed to the policemen a Statement and Receipts of Duties Collected on Informal Entry No. 147-5501, issued by the Bureau of Customs in the name of a certain Bienvenido Naguit. Claiming to have been prejudiced by the seizure and detention of the two trucks and their cargo, Remedios Mago and Valentin B. Lanopa filed with the Court of First Instance (CFI) of Manila a petition for mandamus with restraining order or preliminary injunction (Civil Case 67496), praying for the issuance of a restraining order, ex parte, enjoining the police and customs authorities, or their agents, from opening the bales and examining the goods, and a writ of mandamus for the return of the goods and the trucks, as well as a judgment for actual, moral and exemplary damages in their favor. On 10 November 1966, Judge Hilarion Jarencio issued an order ex parte restraining Ricardo Papa (as Chief of Police of Manila) and Juan Ponce Enrile (as Commissioner of Customs) in Civil Case 67496. However, when the restraining order was received by Papa. et. al., some bales had already been opened by the examiners of the Bureau of Customs in the presence of officials of the Manila Police Department, an assistant city fiscal and a representative of Remedios Mago. Under date of 15 November 1966, Mago filed an amended petition, including as party defendants Collector of Customs Pedro Pacis of the Port of Manila and Lt. Martin Alagao of the Manila Police Department. At the hearing on 9 December 1966, the lower court, with the conformity of the parties, ordered that an inventory of the goods be made by its clerk of court in the presence of the representatives of the claimant of the goods, the Bureau of Customs, and the Anti- Smuggling Center of the Manila Police Department. On 23 December 1966, Mago filed an ex parte motion to release the goods, alleging that since the inventory of the goods seized did not show any article of prohibited importation, the same should be released as per agreement of the parties upon her

posting of the appropriate bond that may be determined by the court. On 7 March 1967, the Judge issued an order releasing the goods to Mago upon her filing of a bond in the amount of P40,000.00. On 13 March 1967, Papa, on his own behalf, filed a motion for reconsideration of the order of the court releasing the goods under bond, upon the ground that the Manila Police Department had been directed by the Collector of Customs of the Port of Manila to hold the goods pending termination of the seizure proceedings. Without waiting for the courts action on the motion for reconsideration, and alleging that they had no plain, speedy and adequate remedy in the ordinary course of law, Papa, et. al. filed the action for prohibition and certiorari with preliminary injunction before the Supreme Court. Held: The Chief of the Manila Police Department, Ricardo G. Papa, having been deputized in writing by the Commissioner of Customs, could, for the purposes of the enforcement of the customs and tariff laws, effect searches, seizures, and arrests, and it was his duty to make seizure, among others, of any cargo, articles or other movable property when the same may be subject to forfeiture or liable for any fine imposed under customs and tariff laws. He could lawfully open and examine any box, trunk, envelope or other container wherever found when he had reasonable cause to suspect the presence therein of dutiable articles introduced into the Philippines contrary to law; and likewise to stop, search and examine any vehicle, beast or person reasonably suspected of holding or conveying such article as aforesaid. It cannot be doubted, therefore, that Papa, Chief of Police of Manila, could lawfully effect the search and seizure of the goods in question. The Tariff and Customs Code authorizes him to demand assistance of any police officer to effect said search and seizure, and the latter has the legal duty to render said assistance. This was what happened precisely in the case of Lt. Martin Alagao who, with his unit, made the search and seizure of the two trucks loaded with the nine bales of goods in question at the Agrifina Circle. He was given authority by the Chief of Police to make the interception of the cargo. Martin Alagao and his companion policemen had authority to effect the seizure without any search warrant issued by a competent court. The Tariff and Customs Code does not require said warrant herein. The Code authorizes persons having police authority under Section 2203 of the Tariff and Customs Code to enter, pass through or search any land, inclosure, warehouse, store or building, not being a dwelling house; and also to inspect, search and examine any vessel or aircraft and any trunk, package, box or envelope or any person on board, or stop and search and examine any vehicle, beast or person suspected of holding or conveying any dutiable or prohibited article introduced into the Philippines contrary to law, without mentioning the need of a search warrant in said cases. But in the search of a dwelling house, the Code provides that said dwelling house may be entered and searched only upon warrant issued by a judge or justice of the peace. Except in the case of the search of a dwelling house, persons exercising police authority under the customs law may effect search and seizure without a search warrant in the enforcement of customs laws. Herein, Martin Alagao and his companion policemen did not have to make any search before they seized the two trucks and their cargo. But even if there was a search, there is still authority to the effect that no search warrant would be needed under the circumstances obtaining herein. The guaranty of freedom from unreasonable searches and seizures is construed as recognizing a necessary difference between a search of a dwelling house or other structure in respect of which a search warrant may readily be obtained and a search of a ship, motorboat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. Having

declared that the seizure by the members of the Manila Police Department of the goods in question was in accordance with law and by that seizure the Bureau of Customs had acquired jurisdiction over the goods for the purposes of the enforcement of the customs and tariff laws, to the exclusion of the Court of First Instance of Manila. People v. Lo Ho Wing, 193 SCRA 122 F: Peter Lo , together with co-accused Lim Cheng Huat alias Antonio Lim and Reynaldo Tia, were charged with a violation of the Dangerous Drugs Act, for the transport of metamphetamine hydrochloride, otherwise known as "shabu". The drug was contained in tea bags inside tin cans which were placed inside their luggages. Upon arrival from Hongkong, they boarded the taxis at the airport which were apprehended by CIS operatives. Their luggages were subsequently searched where the tea bags were opened and found to contain shabu. Only Lo and Lim were convicted. Tia was discharged as a state witness, who turned out to be a " deep penetration agent" of the CIS in its mission to bust the drug syndicate . Issue: W/N the search and seizure was legal. HELD: YES That search and seizure must be supported by a valid warrant is not an absolute rule. One of the exceptions thereto is a search of a moving vehicle. The circumstance of the case clearly show that the serach in question was made as regards a moving vehicle. Therefore, a valid warrant was not necessary to effect the search on appellant and his coaccused. It was firmly established from the factual findings of the court that the authorities had reasonable ground to believe that appellant would attempt to bring in contraband and transport within the country. The belief was based on intelligence reports gathered from surveillance activities on the suspected syndicate, of which appellant was touted to be amember. Aside from this, they were also certain as to the expected date and time of arrival of the accused from China via Hongkong. But such knowledge was insufficient to enable them to fulfill the requiremnents for the issuance of a search warrant. Still and all, the important thing is that there was probable cause to conduct the warrantless search, which must still be present in the case. People vs. Andre Marti [GR 81561, 18 January 1991] Third Division, Bidin (J): 3 concur Facts: On 14 August 1987, Andre Marti and his common-law wife, Shirley Reyes, went to the booth of the Manila Packing and Export Forwarders in the Pistang Pilipino Complex, Ermita, Manila, carrying with them 4 gift-wrapped packages. Anita Reyes (the proprietress and no relation to Shirley Reyes) attended to them. Marti informed Anita Reyes that he was sending the packages to a friend in Zurich, Switzerland. Marti filled up the contract necessary for the transaction, writing therein his name, passport number, the date of shipment and the name and address of the consignee, namely, WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland. Anita Reyes did not inspect the packages as Marti refused, who assured the former that the packages simply contained books, cigars, and gloves and were gifts to his friend in Zurich. In view of Martis representation, the 4 packages were then placed inside a brown corrugated box, with styro-foam placed at the bottom and on top of the packages, and sealed with masking tape. Before delivery of Martis box to the Bureau of Customs and/or Bureau of Posts, Mr. Job Reyes (proprietor) and husband of Anita (Reyes), following standard operating procedure, opened the boxes for final inspection, where a peculiar odor emitted therefrom. Job pulled out a cellophane wrapper protruding from the opening of one of the gloves, and took several grams of the contents thereof.

Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a laboratory examination of the samples he extracted from the cellophane wrapper. At the Narcotics Section of the National Bureau of Investigation (NBI), the box containing Martis packages was opened, yielding dried marijuana leaves, or cake-like (bricks) dried marijuana leaves. The NBI agents made an inventory and took charge of the box and of the contents thereof, after signing a Receipt acknowledging custody of the said effects. Thereupon, the NBI agents tried to locate Marti but to no avail, inasmuch as the latters stated address was the Manila Central Post Office. Thereafter, an Information was filed against Marti for violation of RA 6425, otherwise known as the Dangerous Drugs Act. After trial, the Special Criminal Court of Manila (Regional Trial Court, Branch XLIX) rendered the decision, convicting Marti of violation of Section 21 (b), Article IV in relation to Section 4, Article 11 and Section 2 (e)(i), Article 1 of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act. Marti appealed. Issue: Whether an act of a private individual, allegedly in violation of the accuseds constitutional rights, be invoked against the State. Held: In the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked against the State. The contraband herein, having come into possession of the Government without the latter transgressing the accuseds rights against unreasonable search and seizure, the Court sees no cogent reason why the same should not be admitted against him in the prosecution of the offense charged. The mere presence of the NBI agents did not convert the reasonable search effected by Reyes into a warrantless search and seizure proscribed by the Constitution. Merely to observe and look at that which is in plain sight is not a search. Having observed that which is open, where no trespass has been committed in aid thereof, is not search. Where the contraband articles are identified without a trespass on the part of the arresting officer, there is not the search that is prohibited by the constitution. The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed. If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to pass the test of constitutionality. However, if the search is made at the behest or initiative of the proprietor of a private establishment for its own and private purposes, as in the case at bar, and without the intervention of police authorities, the right against unreasonable search and seizure cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government. G.R. No. 143944 July 11, 2002 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BASHER BONGCARAWAN y MACARAMBON, accused-appellant. PUNO, J.: This is an appeal from the Decision1 dated December 27, 1999 of the Regional Trial Court of Iligan City, Branch 06, in Criminal Case No. 06-7542, finding accused Basher Bongcarawan y Macarambon guilty beyond reasonable doubt of violation of Section 16, Article III of Republic

Act No. 64252 as amended, and sentencing him to suffer the penalty of reclusion perpetua, and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) without subsidiary imprisonment in case of insolvency.1wphi1.nt Accused Basher Bongcarawan y Macarambon was charged in an Information which reads, thus: "That on or about March 13, 1999, in the City of Iligan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, without authority of law, did then and there wilfully, unlawfully and feloniously have in his possession, custody and control eight (8) packs of Methamphetamine Hydrochloride, a regulated drug commonly known as Shabu, weighing approximately 400 grams, without the corresponding license or prescription. Contrary to and in violation of Section 16, Article III of RA 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended by RA 7659."3 During the arraignment, the accused pleaded not guilty. Trial ensued. Evidence for the prosecution shows that on March 11, 1999, an interisland passenger ship, M/V Super Ferry 5, sailed from Manila to Iligan City. At about 3:00 a.m. on March 13, 1999, the vessel was about to dock at the port of Iligan City when its security officer, Mark Diesmo, received a complaint from passenger Lorena Canoy about her missing jewelry. Canoy suspected one of her co-passengers at cabin no. 106 as the culprit. Diesmo and four (4) other members of the vessel security force accompanied Canoy to search for the suspect whom they later found at the economy section.4 The suspect was identified as the accused, Basher Bongcarawan. The accused was informed of the complaint and was invited to go back to cabin no. 106. With his consent, he was bodily searched, but no jewelry was found. He was then escorted by two (2) security agents back to the economy section to get his baggage. The accused took a Samsonite suitcase and brought this back to the cabin. When requested by the security, the accused opened the suitcase, revealing a brown bag and small plastic packs containing white crystalline substance. Suspecting the substance to be "shabu," the security personnel immediately reported the matter to the ship captain and took pictures of the accused beside the suitcase and its contents. They also called the Philippine Coast Guard for assistance.5 At about 6:00 a.m., Lt. Robert Patrimonio, YN Aurelio Estoque, CD2 Phoudinie Lantao and RM3 Merchardo De Guzman of the Philippine Coast Guard arrived and took custody of the accused and the seized items--the Samsonite suitcase, a brown bag6 and eight (8) small plastic packs of white crystalline substance.7 When asked about the contraband articles, the accused explained that he was just requested by a certain Alican "Alex" Macapudi to bring the suitcase to the latter's brother in Iligan City.8 The accused and the seized items were later turned over by the coast guard to the Presidential Anti-Organized Crime Task Force (PAOCTF). Chief Inspector Graciano Mijares and his men brought the accused to the PAOCTF Headquarters,9 while the packs of white crystalline substance were sent to the NBI Regional Office in Cagayan de Oro City for laboratory examination. NBI Forensic Chemist Nicanor Cruz later confirmed the substance to be methamphetamine hydrochloride, commonly known as "shabu," weighing 399.3266 grams.10 The accused testified and proffered his own version. On March 11, 1999, at about 10:00 p.m., he was in Quiapo, Manila where he met Alican "Alex" Macapudi, a neighbor who has a store in Marawi City. He was requested by Macapudi to bring a Samsonite suitcase containing sunglasses and watches to Iligan City, and to give it to Macapudi's brother at the Iligan port. He boarded the M/V Super Ferry 5 on the same night, carrying a big luggage full of clothes, a small luggage or

"maleta" containing the sunglasses and brushes he bought from Manila, and the Samsonite suitcase of Macapudi.11 He stayed at cabin no. 106. At about 4:00 a.m of March 13, 1999, as the vessel was about to dock at the Iligan port, he took his baggage and positioned himself at the economy section to be able to disembark ahead of the other passengers. There, he met a friend, Ansari Ambor. While they were conversing, five (5) members of the vessel security force and a woman whom he recognized as his co-passenger at cabin no. 106 came and told him that he was suspected of stealing jewelry. He voluntarily went with the group back to cabin no. 106 where he was frisked. Subsequently, he was asked to get his baggage, so he went back to the economy section and took the big luggage and Macapudi's Samsonite suitcase. He left the small "maleta" containing sunglasses and brushes for fear that they would be confiscated by the security personnel. When requested, he voluntarily opened the big luggage, but refused to do the same to the Samsonite suitcase which he claimed was not his and had a secret combination lock. The security personnel forcibly opened the suitcase and found packs of white crystalline substance inside which they suspected to be "shabu." They took pictures of him with the merchandise, and asked him to sign a turn over receipt which was later given to the Philippine Coast Guard, then to the PAOCTF.12 On December 27, 1999, the trial court rendered judgment, the dispositive portion of which reads: "WHEREFORE, the court finds the accused Basher Bongcarawan y Macarambon GUILTY beyond reasonable doubt as principal of the offense of violation of Section 16, Art. III, R.A. No. 6425 as amended by R.A. No. 7659 and hereby imposes upon him the penalty of RECLUSION PERPETUA and a fine of FIVE HUNDRED THOUSAND (P500,000.00) PESOS, without subsidiary imprisonment in case of insolvency. Having been under preventive imprisonment since March 13, 1999 until the present, the period of such preventive detention shall be credited in full in favor of the accused in the service of his sentence. The 399.3266 grams of methamphetamine hydrochloride or shabu is hereby ordered delivered to the National Bureau of Investigation for proper disposition. SO ORDERED."13 Hence, this appeal where the accused raises the following assignment of errors: "I. THE COURT A QUO ERRED IN SO HOLDING THAT THE DRUG CONFISCATED IS ADMISSIBLE IN EVIDENCE AGAINST THE ACCUSED/APPELLANT. II. THE COURT A QUO ERRED IN SO HOLDING THAT THE APPELLANT OWNED THE CONFISCATED EVIDENCE AND THEREFORE ADMISSIBLE IN EVIDENCE AGAINST HIM."14 On the first assignment of error, the accused-appellant contends that the Samsonite suitcase containing the methamphetamine hydrochloride or "shabu" was forcibly opened and searched without his consent, and hence, in violation of his constitutional right against unreasonable search and seizure. Any evidence acquired pursuant to such unlawful search and seizure, he claims, is inadmissible in evidence against him. He also contends that People v. Marti15 is not applicable in this case because a vessel security personnel is deemed to perform the duties of a policeman. The contentions are devoid of merit.

The right against unreasonable search and seizure is a fundamental right protected by the Constitution.16 Evidence acquired in violation of this right shall be inadmissible for any purpose in any proceeding.17 Whenever this right is challenged, an individual may choose between invoking the constitutional protection or waiving his right by giving consent to the search and seizure. It should be stressed, however, that protection is against transgression committed by the government or its agent. As held by this Court in the case of People v. Marti,18 "[i]n the absence of governmental interference, liberties guaranteed by the Constitution cannot be invoked against the State."19 The constitutional proscription against unlawful searches and seizures applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed.20 In the case before us, the baggage of the accused-appellant was searched by the vessel security personnel. It was only after they found "shabu" inside the suitcase that they called the Philippine Coast Guard for assistance. The search and seizure of the suitcase and the contraband items was therefore carried out without government intervention, and hence, the constitutional protection against unreasonable search and seizure does not apply. There is no merit in the contention of the accused-appellant that the search and seizure performed by the vessel security personnel should be considered as one conducted by the police authorities for like the latter, the former are armed and tasked to maintain peace and order. The vessel security officer in the case at bar is a private employee and does not discharge any governmental function. In contrast, police officers are agents of the state tasked with the sovereign function of enforcement of the law. Historically and until now, it is against them and other agents of the state that the protection against unreasonable searches and seizures may be invoked. On the second assignment of error, the accused-appellant contends that he is not the owner of the Samsonite suitcase and he had no knowledge that the same contained "shabu." He submits that without knowledge or intent to possess the dangerous drug, he cannot be convicted of the crime charged.21 We are not persuaded. In a prosecution for illegal possession of dangerous drugs, the following facts must be proven beyond reasonable doubt, viz: (1) that the accused is in possession of the object identified as a prohibited or a regulated drug; (2) that such possession is not authorized by law; and (3) that the accused freely and consciously possessed the said drug.22 The first two elements were sufficiently proven in this case, and were in fact undisputed. We are left with the third. As early as 1910 in the case of United States v. Tan Misa,23 this Court has ruled that to warrant conviction, the possession of dangerous drugs must be with knowledge of the accused, or that animus possidendi existed together with the possession or control of such articles.24 It has been ruled, however, that possession of dangerous drugs constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused in the absence of a satisfactory explanation of such possession.25 Hence, the burden of evidence is shifted to the accused to explain the absence of knowledge or animus possidendi.26 In this respect, the accused-appellant has utterly failed. His testimony, uncorroborated, self-serving and incredulous, was not given credence by the trial court. We find no reason to disagree. Wellsettled is the rule that in the absence of palpable error or grave abuse of discretion on the part of the trial judge, the trial court's evaluation of the credibility of witnesses will not be disturbed on

appeal.27 Moreover, evidence must be credible in itself to deserve credence and weight in law. In this case, the accused-appellant admits that when he was asked to get his baggage, he knew it would be inspected.28 Why he got the Samsonite suitcase allegedly not owned by him and which had a combination lock known only to the owner remains unclear. He also claims that he did not present his small "maleta" for inspection for fear that its contents consisting of expensive sunglasses and brushes would be confiscated,29 but he brought the Samsonite suitcase which is not his and also contained expensive sunglasses, and even watches.30 The things in possession of a person are presumed by law to be owned by him.31 To overcome this presumption, it is necessary to present clear and convincing evidence to the contrary. In this case, the accused points to a certain Alican "Alex" Macapudi as the owner of the contraband, but presented no evidence to support his claim. As aptly observed by the trial judge: "First, who is Alex Macap[u]di aka Ali[c]an Macap[u]di? Does he really exist or simply a figment of the imagination? He says that Alex Macap[u]di is a friend and a fellow businessman who has a stall selling sunglasses in Marawi City. But no witnesses were presented to prove that there is such a living, breathing, flesh and blood person named Alex Macap[u]di who entrusted the Samsonite to the accused. Surely, if he does exist, he has friends, fellow businessmen and acquaintances who could testify and support the claim of the accused."32 Mere denial of ownership will not suffice especially if, as in the case at bar, it is the keystone of the defense of the accused-appellant. Stories can easily be fabricated. It will take more than barebone allegations to convince this Court that a courier of dangerous drugs is not its owner and has no knowledge or intent to possess the same.1wphi1.nt WHEREFORE, the decision of the Regional Trial Court of Iligan City, Branch 06, in Criminal Case No. 06-7542, convicting accused-appellant Basher Bongcarawan of violation of Section 16, Article III of Republic Act No. 6425, as amended, and sentencing him to suffer the penalty of Reclusion Perpetua and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) without subsidiary imprisonment in case of insolvency, is AFFIRMED. Costs against the accused-appellant. SO ORDERED.