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'12 FEB 20 Pl :42 I


CASE NO, 002-2011


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(Re: Subpoenae and Search Warrants)

The HOUSE OF REPRESENTATIVES, through its PROSECUTORS, respectfully states: At the 14 February 2012 hearing, the parties were directed to submit


a memorandum on the distinction between subpoenae and search warrants, and other matters related thereto.

The prosecution respectfully submits that subpoenae and search

warrants are fundamentally distinct and different from each other. Consequently,

the rules and standards for search warrants are not applicable to the subpoenae issued by this Honorable Impeachment Court. 3. As defined by the Rules of Court, a "subpoena is a process directed

to a person requiring him to attend and to testify at the hearing or the trial of an action, or at an investigation conducted by competent authority, or for the taking of his deposition. It may also require him to bring with him any books,

documents, or other things under his control, in which case it is called a subpoena duces tecum" (Rule 21, Section 1).

On the other hand, as again defined by the Rules of Court, "a search

warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court" (Rule 126, Section 1).

The basic differences between subpoenae and search warrants are as

follows (inter alia): (A) As to purpose - A subpoena is issued to require a person to testify A search

(ad testificandum) or to bring documents or things (duces tecum).

warrant is issued to order a peace officer to make a search for personal property and to bring it before the court. (8) As to subject covered A subpoena (duces tecum) covers any

documents or things which are prima facie relevant to a case or investigation (see Rule 21, Sections 1 and 3). On the other hand, a search warrant covers only

personal property which is "(a) Subject of the offense; (b) Stolen or embezzled

and other proceeds, or fruits of the offense; or (c) Used or intended to be used as the means of committing an offense" (Rule 126, Section 3).


As to requisites for issuance -

There are no specific requirements

for the issuance of a subpoena. It is sufficient that a party to an action requests for the same. The requesting party does not even have to notify the other party of such request:

"Requests by a party for the issuance of subpoenas do not require notice to other parties to the action. No violation of due process results by such lack of notice since the other parties would have ample opportunity to examine the witnesses and documents subpoenaed once they are presented in court."l

Rule 21 does not require the requesting party to state the purpose of the testimony sought to be elicited from the person sought to be subpoenaed, or the documents/things sought to be produced. The requesting party is not even

required to explain the relevance of the documents/things to be produced, it being enough that they "appear to the court prima facie relevant" (Rule 21, Section 3). If the opposing party disagrees and believes that the "relevancy of the books, documents or things does not appear," he may move for the quashal of the subpoena (Rule 21, Section 4). As the movant, the opposing party will have the burden of establishing that the documents or things are irrelevant. In contrast, the requirements for the issuance of a search warrant are very stringent, as per the Constitution (Article III, Section 2), the Rules of Court (Rule 126, Section 4) and jurisprudence. "[T}he requisites of a valid search warrant are:

Adorio vs. Bersamin, G.R. No. 120074, June 10, 1997.

(1) probable cause is present; (2) such presence is determined personally by the judge; (3) the complainant and the witnesses he or she may produce are personally examined by the judge, in writing and under oath or affirmation; (4) the applicant and the witnesses testify on facts personally known to them; and (5) the warrant specifically describes the person and place to be searched and the things to be seized."2
(0) As to particularity of description -

A search warrant must

"particularly describe[e] the place to be searched and the things to be seized"

(Rule 126, Section 4). In a subpoena, it is enough that it "contain a reasonable description of the books, documents or things demanded" (Rule 21, Section 3). In one case involving a subpoena duces tecum "to bring the complete original case dockets of the refunds granted to Limtuaco and La Tondefia," the Supreme Court held that the said subpoena "indeed particularly and sufficiently described the records to be produced."
(E) As to effect of quashal 3

When a search warrant is quashed, the

evidence obtained thereby may be suppressed upon motion. This is expressly sanctioned by Rule 126, Section 14.4 "Evidence procured on the occasion of an unreasonable search and seizure is deemed tainted for being the proverbial fruit of a poisonous tree and should be excluded."s This exclusionary rule is based on the assumption that "the exclusion of unlawfully seized evidence [is] the only

Nala vs. Barroso, G.R. No. 153087, August 7, 2003, citing Paper Industries Corporation of the Philippines v. Asuncion, 366 Phil. 717, 736737 (1999). 'Bureau of Internal Revenue vs. Office of the Ombudsman, G.R. No. 115103, April 11, 2002. 4 "SECTION 14. Motion to quash a search warront or to suppress evidence; where to file. - A motion to quash a search warrant and/or to suppress eVidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued the search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court." 5 People v. Martinez, G.R. No. 191366, December 13, 2010.

practical means of enforcing the constitutional injunction against unreasonable searches and seizures.,,6 In contrast, there is no exclusionary rule or exclusionary effect when a subpoena is quashed. A subpoena does not constitute a "search and seizure," so any defect in the subpoena does not taint the evidence resulting therefrom. Rule 21, Section 4, on the quashal of subpoena, does not provide for the exclusion or suppression of evidence resulting from a quashed subpoena: "Section 4. Quashing a subpoena. - The court may quash a subpoena duces tecum upon motion promptly made and, in any event, at or before the time specified therein if it is unreasonable and oppressive, or the relevancy of the books, documents or things does not appear, or if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof. "The court may quash a subpoena ad testificandum on ground that the witness is not bound thereby. In either case, subpoena may be quashed on the ground that the witness fees kilometrage allowed by these Rules were not tendered when subpoena was served (emphasis supplied}." the the and the

Notably, Rule 21, Section 4 provides that a motion to quash subpoena may only be made "at or before the time specified therein," which implies that the subpoena can no longer be quashed after it has already been implemented or complied with (e.g., when the witness has already testified or when the documents have already been brought). After a subpoena has already been

implemented, the opposing party can no longer ask for its quashal or for the suppression or exclusion of the evidence yielded by the subpoena.

People VS. Francisco, G.R. No. 129035, August 22, 2002.

The opposing party is not devoid of remedy.

If he believes that the

evidence yielded by the subpoena are irrelevant or otherwise inadmissible, his remedy is to raise such objections when the said evidence are formally offered.

If he believes that there has been a violation of the law in the request for the subpoena (e.g., violation of secrecy of bank deposits, if any), he may file a complaint for such violation in the proper forum. The case of Ejercito v. Sandiganbayan (G.R. Nos. 157294-95, November 30, 2006) teaches that the exclusionary rule cannot be read into the law unless there is an express or specific provision to that effect. The law on secrecy of bank deposits (R.A. 1405, and even R.A. 6426) does not provide for such exclusionary rule. Therefore, no such exclusionary rule may be applied. Said the Supreme Court:

"Petitioner's attempt to make the exclusionary rule applicable to the instant case fails. R.A. 1405, it bears noting, nowhere provides that an unlawful examination of bank accounts shall render the evidence obtained therefrom inadmissible in evidence. Section 5 of R.A. 1405 only states that '[a]ny violation of this law will subject the offender upon conviction, to an imprisonment of not more than five years or a fine of not more than twenty thousand pesos or both, in the discretion of the court.' xxx xxx xxx

The same principle was reiterated in U.S. v. Thompson:


As the Honorable Senate President explained on February 6, 2012, questions of admissibility are premature at this point because the prosecution has not yet made a formal offer of documentary evidence (lThe Presiding Officer. x x x I would like to explain that the Resolution of this Court was simply to authorize the issuance of a subpoena, and whether those evidence subpoenaed are admissible evidence given the fact that they apparently appeared in violation of eXisting laws is a question that must be resolved in due course. I hope that is understood. We are not prejudging the admissibility or non-admissibility of this evidence. And this issue will come up at that paint when the subpoenaed material and testimonies are offered in evidence. And all of these incidental issues will be opened for scrutiny at the proper time. X x x" (Pages 35 to 36 of the February 6, 2012 Record of the Senate Sitting As An Impeachment Court; Emphasis supplied)

. . . When Congress specifically designates a remedy for one of its acts, courts generally presume that it engaged in the necessary balancing of interests in determining what the appropriate penalty should be. See Michaelian, 803 F.2d at 1049 (citing cases); Frazin, 780 F.2d at 1466. Absent a specific reference to an exclusionary rule, it is not appropriate for the courts to read such a provision into the act." [Emphasis and underscoring supplied]


Pasay City, Manila. 20 February 2012.

THE HOUSE OF REPRESENTATIVES Republic of the Philippines


Copy Furnished (By Personal Service): Justice Serafin R. Cuevas (Ret.) et al.

Counsel for Respondent Chief Justice Renata Corona Suite 1902 Security Bank Centre 6776 Ayala Avenue Makati City, Philippines 1226

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