D. SEARCHES AND SEIZURES 1. RUBEN DEL CASTILLO v. PEOPLE OF THE PHILIPPINES G.R. No.

185128, 30 January 2012, THIRD DIVISION (Peralta, J.) Having been established that the assistance of the barangay tanods was sought by the police authorities who effected the searched warrant, the same barangay tanods therefore acted as agents of persons in authority. FACTS: Police Officers headed by SPO3 Bienvenido Masnayon went to serve a search warrant from the Regional Trial Court (RTC) to Petitioner Ruben Del Castillo in search of illegal drugs. Upon arrival, somebody shouted raid which prompted the police officers to immediately disembark from the jeep they were riding and go directly to Del Castillos house and cordoned it off. Police men found nothing incriminating in Del Castillos residence, but one of the barangay tanods was able to confiscate from the hut several articles including four (4) plastic packs of methamphetamine hydrochloride, or shabu. An Information was filed before RTC against Del Castillo, charging him with violation of Section 16, Article III of R.A. 6425 (The Dangerous Drugs Act of 1972). During the arraignment, Del Castillo pleaded not guilty. The RTC found Del Castillo guilty beyond reasonable of the charge against him in the information. The Court of Appeals (CA) affirmed the decision. Del Castillo appealed his case to the CA, insisting that there was a violation of his constitutional guaranty against unreasonable searches and seizure. On the contrary, the Office of the Solicitor General argued that the constitutional guaranty against unreasonable searches and seizure is applicable only against government authorities. Hence, assuming that the items seized were found in another place not designated in the search warrant, the same items should still be admissible as evidence because the one who discovered them was a barangay tanod who is a private individual. ISSUE: Whether or not there was a violation of Del Castillos right against unreasonable searches and seizure HELD: Petition GRANTED. It must be remembered that the warrant issued must particularly describe the place to be searched and persons or things to be seized in order for it to be valid. 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.

In the present case, the search warrant specifically designates or describes the residence of the petitioner as the place to be searched. Incidentally, the items were seized by a barangay tanod in a nipa hut, 20 meters away from the residence of the Del Castillo. The confiscated items, having been found in a place other than the one described in the search warrant, can be considered as fruits of an invalid warrantless search, the presentation of which as an evidence is a violation of Del Castillos constitutional guaranty against unreasonable searches and seizure. The OSG argued that, assuming that the items seized were found in another place not designated in the search warrant, the same items should still be admissible as evidence because the one who discovered them was a barangay tanod who is a private individual, the constitutional guaranty against unreasonable searches and seizure being applicable only against government authorities. The contention is devoid of merit. It was testified to during trial by the police officers who effected the search warrant that they asked the assistance of the barangay tanods. Having been established that the assistance of the barangay tanods was sought by the police authorities who effected the search warrant, the same barangay tanods therefore acted as agents of persons in authority. Article 152 of the Revised Penal Code defines persons in authority and agents of persons in Authority as any person directly vested with jurisdiction, whether as an individual or as a member of some court or governmental corporation, board or commission, shall be deemed a person in authority. A barangay captain and a barangay chairman shall also be deemed a person in authority. A person who, by direct provision of law or by election or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property, such as barrio councilman, barrio policeman and barangay leader, and any person who comes to the aid of persons in authority, shall be deemed an agent of a person in authority. The Local Government Code also contains a provision which describes the function of a barangay tanod as an agent of persons in authority. Section 388 of the Local Government Code reads: For purposes of the Revised Penal Code, the punong barangay, sangguniang barangay members, and members of the lupong tagapamayapa in each barangay shall be deemed as persons in authority in their jurisdictions, while other barangay officials and members who may be designated by law or ordinance and charged with the maintenance of public order, protection and security of life and property, or the maintenance of a desirable and balanced environment, and any barangay member who comes to the aid of persons in authority, shall be deemed agents of persons in authority. By virtue of the above provisions, the police officers, as well as the barangay tanods were acting as agents of a person in authority during the conduct of the search. Thus, the search conducted was unreasonable and the confiscated items are inadmissible in evidence. 2. U.S. v. GRUBBS

UNITED STATES v. GRUBBS

certiorari to the united states court of appeals for the ninth circuit

No. 04-1414. Argued January 18, 2006--Decided March 21, 2006

A Magistrate Judge issued an "anticipatory" search warrant for respondent Grubbs' house based on a federal officer's affidavit. The affidavit explained that the warrant would not be executed until a parcel containing a videotape of child pornography--which Grubbs had ordered from an undercover postal inspector--was received at, and physically taken into, the residence. The affidavit also referred to two attachments describing the residence and the items to be seized. After the package was delivered and the search commenced, Grubbs was given a copy of the warrant, which included the attachments but not the supporting affidavit. When he admitted ordering the videotape, he was arrested, and the videotape and other items were seized. Following his indictment for receiving child pornography, see 18 U. S. C. 2252(a)(2), Grubbs moved to suppress the seized evidence, arguing, inter alia, that the warrant was invalid because it failed to list the triggering condition. The District Court denied the motion, and Grubbs pleaded guilty. The Ninth Circuit reversed, concluding that the warrant ran afoul of the Fourth Amendment's particularity requirement, which, under Circuit precedent, applied to the conditions precedent to an anticipatory warrant.

Held:

1. Anticipatory warrants are not categorically unconstitutional under the Fourth Amendment's provision that "no Warrants shall issue, but upon probable cause." Probable cause exists when "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U. S. 213, 238. When an anticipatory warrant is issued, the fact that the contraband is not presently at the place described is immaterial, so long as there is probable cause to believe it will be there when the warrant is executed. Anticipatory warrants are, therefore, no different in principle from ordinary warrants: They require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed. Where the anticipatory warrant places a condition (other than the mere passage of time) upon its execution, the first of these determinations goes not merely to what will probably be found if the condition is met, but also to the likelihood that the condition will be met, and thus that a proper

object of seizure will be on the described premises. Here, the occurrence of the triggering condition--successful delivery of the videotape--would plainly establish probable cause for the search, and the affidavit established probable cause to believe the triggering condition would be satisfied. Pp. 3-7.

2. The warrant at issue did not violate the Fourth Amendment's particularity requirement. The Amendment specifies only two matters that the warrant must "particularly describ[e]": "the place to be searched" and "the persons or things to be seized." That language is decisive here; the particularity requirement does not include the conditions precedent to execution of the warrant. Cf. Dalia v. United States, 441 U. S. 238, 255, 257. Respondent's two policy rationales--that setting forth the triggering condition in the warrant itself is necessary (1) to delineate the limits of the executing officer's power and (2) to allow the individual whose property is searched or seized to police the officer's conduct--find no basis in either the Fourth Amendment or Federal Rule of Criminal Procedure 41. Pp. 7-9.

377 F. 3d 1072 and 389 F. 3d 1306, reversed and remanded.

Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Breyer, JJ., joined, and in which Stevens, Souter, and Ginsburg, J., joined as to Parts I and II. Souter, J., filed an opinion concurring in part and concurring in the judgment, in which Stevens and Ginsburg, JJ., joined. Alito, J., took no part in the consideration or decision of the case.

UNITED STATES, PETITIONER v. JEFFREY GRUBBS

on writ of certiorari to the united states court of appeals for the ninth circuit

[March 21, 2006]

Justice Scalia delivered the opinion of the Court.

Federal law enforcement officers obtained a search warrant for respondent's house on the basis of an affidavit explaining that the warrant would be executed only after a controlled delivery of contraband to that location. We address two challenges to the constitutionality of this anticipatory warrant.

Respondent Jeffrey Grubbs purchased a videotape containing child pornography from a Web site operated by an undercover postal inspector. Officers from the Postal Inspection Service arranged a controlled delivery of a package containing the videotape to Grubbs' residence. A postal inspector submitted a search warrant application to a Magistrate Judge for the Eastern District of California, accompanied by an affidavit describing the proposed operation in detail. The affidavit stated:

"Execution of this search warrant will not occur unless and until the parcel has been received by a person(s) and has been physically taken into the residence . . . . At that time, and not before, this search warrant will be executed by me and other United States Postal inspectors, with appropriate assistance from other law enforcement officers in accordance with this warrant's command." App. to Pet. for Cert. 72a.

In addition to describing this triggering condition, the affidavit referred to two attachments, which described Grubbs' residence and the items officers would seize. These attachments, but not the body of the affidavit, were incorporated into the requested warrant. The affidavit concluded:

"Based upon the foregoing facts, I respectfully submit there exists probable cause to believe that the items set forth in Attachment B to this affidavit and the search warrant, will be found [at Grubbs' residence], which residence is further described at Attachment A." Ibid.

The Magistrate Judge issued the warrant as requested. Two days later, an undercover postal inspector delivered the package. Grubbs' wife signed for it and took the unopened package inside. The inspectors detained Grubbs as he left his home a few minutes later, then entered the house and commenced the search. Roughly 30 minutes into the search, Grubbs was provided with a copy of the warrant, which included both

attachments but not the supporting affidavit that explained when the warrant would be executed. Grubbs consented to interrogation by the postal inspectors and admitted ordering the videotape. He was placed under arrest, and various items were seized, including the videotape.

A grand jury for the Eastern District of California indicted Grubbs on one count of receiving a visual depiction of a minor engaged in sexually explicit conduct. See 18 U. S. C. 2252(a)(2). He moved to suppress the evidence seized during the search of his residence, arguing as relevant here that the warrant was invalid because it failed to list the triggering condition. After an evidentiary hearing, the District Court denied the motion. Grubbs pleaded guilty, but reserved his right to appeal the denial of his motion to suppress.

The Court of Appeals for the Ninth Circuit reversed. 377 F. 3d 1072, amended, 389 F. 3d 1306 (2004). Relying on Circuit precedent, it held that "the particularity requirement of the Fourth Amendment applies with full force to the conditions precedent to an anticipatory search warrant." 377 F. 3d, at 1077-1078 (citing United States v. Hotal, 143 F. 3d 1223, 1226 (CA9 1998)). An anticipatory warrant defective for that reason may be "cur[ed]" if the conditions precedent are set forth in an affidavit that is incorporated in the warrant and "presented to the person whose property is being searched." 377 F. 3d, at 1079. Because the postal inspectors "failed to present the affidavit--the only document in which the triggering conditions were listed"--to Grubbs or his wife, the "warrant was ... inoperative, and the search was illegal." Ibid. We granted certiorari. 545 U. S. ___ (2005).

II

Before turning to the Ninth Circuit's conclusion that the warrant at issue here ran afoul of the Fourth Amendment's particularity requirement, we address the antecedent question whether anticipatory search warrants are categorically unconstitutional.1 An anticipatory warrant is "a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place." 2 W. LaFave, Search and Seizure 3.7(c), p. 398 (4th ed. 2004). Most anticipatory warrants subject their execution to some condition precedent other than the mere passage of time--a so-called "triggering condition." The affidavit at issue here, for instance, explained that "[e]xecution of th[e] search warrant will not occur unless and until the parcel [containing child pornography] has been received by a person(s) and has been physically taken into the residence." App. to Pet. for Cert. 72a. If the government

were to execute an anticipatory warrant before the triggering condition occurred, there would be no reason to believe the item described in the warrant could be found at the searched location; by definition, the triggering condition which establishes probable cause has not yet been satisfied when the warrant is issued. Grubbs argues that for this reason anticipatory warrants contravene the Fourth Amendment's provision that "no Warrants shall issue, but upon probable cause."

We reject this view, as has every Court of Appeals to confront the issue, see, e.g., United States v. Loy, 191 F. 3d 360, 364 (CA3 1999) (collecting cases). Probable cause exists when "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U. S. 213, 238 (1983). Because the probable-cause requirement looks to whether evidence will be found when the search is conducted, all warrants are, in a sense, "anticipatory." In the typical case where the police seek permission to search a house for an item they believe is already located there, the magistrate's determination that there is probable cause for the search amounts to a prediction that the item will still be there when the warrant is executed. See People v. Glen, 30 N. Y. 2d 252, 258, 282 N. E. 2d 614, 617 (1972) ("[P]resent possession is only probative of the likelihood of future possession.").2 The anticipatory nature of warrants is even clearer in the context of electronic surveillance. See, e.g., Katz v. United States, 389 U. S. 347 (1967). When police request approval to tap a telephone line, they do so based on the probability that, during the course of the surveillance, the subject will use the phone to engage in crime-related conversations. The relevant federal provision requires a judge authorizing "interception of wire, oral, or electronic communications" to determine that "there is probable cause for belief that particular communications concerning [one of various listed offenses] will be obtained through such interception." 18 U. S. C. 2518(3)(b) (emphasis added); see also United States v. Ricciardelli, 998 F. 2d 8, 11, n. 3 (CA1 1993) ("[T]he magistrate issues the warrant on the basis of a substantial probability that crime-related conversations will ensue."). Thus, when an anticipatory warrant is issued, "the fact that the contraband is not presently located at the place described in the warrant is immaterial, so long as there is probable cause to believe that it will be there when the search warrant is executed." United States v. Garcia, 882 F. 2d 699, 702 (CA2 1989) (quoting United States v. Lowe, 575 F. 2d 1193, 1194 (CA6 1978); internal quotation marks omitted).

Anticipatory warrants are, therefore, no different in principle from ordinary warrants. They require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed. It should be noted, however, that where the anticipatory warrant places a condition (other than the mere passage of time) upon its execution, the first of these determinations goes not merely to what will probably be found if the

condition is met. (If that were the extent of the probability determination, an anticipatory warrant could be issued for every house in the country, authorizing search and seizure if contraband should be delivered--though for any single location there is no likelihood that contraband will be delivered.) Rather, the probability determination for a conditioned anticipatory warrant looks also to the likelihood that the condition will occur, and thus that a proper object of seizure will be on the described premises. In other words, for a conditioned anticipatory warrant to comply with the Fourth Amendment's requirement of probable cause, two prerequisites of probability must be satisfied. It must be true not only that if the triggering condition occurs "there is a fair probability that contraband or evidence of a crime will be found in a particular place," Gates, supra, at 238, but also that there is probable cause to believe the triggering condition will occur. The supporting affidavit must provide the magistrate with sufficient information to evaluate both aspects of the probable-cause determination. See Garcia, supra, at 703.

In this case, the occurrence of the triggering condition--successful delivery of the videotape to Grubbs' residence--would plainly establish probable cause for the search. In addition, the affidavit established probable cause to believe the triggering condition would be satisfied. Although it is possible that Grubbs could have refused delivery of the videotape he had ordered, that was unlikely. The Magistrate therefore "had a 'substantial basis for . . . conclud[ing]' that probable cause existed." Gates, 462 U. S., at 238-239 (quoting Jones v. United States, 362 U. S. 257, 271 (1960)).

III

The Ninth Circuit invalidated the anticipatory search warrant at issue here because the warrant failed to specify the triggering condition. The Fourth Amendment's particularity requirement, it held, "applies with full force to the conditions precedent to an anticipatory search warrant." 377 F. 3d, at 1077-1078.

The Fourth Amendment, however, does not set forth some general "particularity requirement." It specifies only two matters that must be "particularly describ[ed]" in the warrant: "the place to be searched" and "the persons or things to be seized." We have previously rejected efforts to expand the scope of this provision to embrace unenumerated matters. In Dalia v. United States, 441 U. S. 238 (1979), we considered an order authorizing the interception of oral communications by means of a "bug" installed by the police in the petitioner's office. The petitioner argued that, if a covert entry is necessary to install such a listening device, the authorizing order must "explicitly set forth its approval of such entries before the fact." Id., at 255. This

argument fell before the " 'precise and clear' " words of the Fourth Amendment: "Nothing in the language of the Constitution or in this Court's decisions interpreting that language suggests that, in addition to the [requirements set forth in the text], search warrants also must include a specification of the precise manner in which they are to be executed." Id., at 255 (quoting Stanford v. Texas, 379 U. S. 476, 481 (1965)), 257. The language of the Fourth Amendment is likewise decisive here; its particularity requirement does not include the conditions precedent to execution of the warrant.

Respondent, drawing upon the Ninth Circuit's analysis below, relies primarily on two related policy rationales. First, he argues, setting forth the triggering condition in the warrant itself is necessary "to delineate the limits of the executing officer's power." Brief for Respondent 20. This is an application, respondent asserts, of the following principle: "[I]f there is a precondition to the valid exercise of executive power, that precondition must be particularly identified on the face of the warrant." Id., at 23. That principle is not to be found in the Constitution. The Fourth Amendment does not require that the warrant set forth the magistrate's basis for finding probable cause, even though probable cause is the quintessential "precondition to the valid exercise of executive power." Much less does it require description of a triggering condition.

Second, respondent argues that listing the triggering condition in the warrant is necessary to " 'assur[e] the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.' " Id., at 19 (quoting United States v. Chadwick, 433 U. S. 1, 9 (1977)). The Ninth Circuit went even further, asserting that if the property owner were not informed of the triggering condition, he "would 'stand [no] real chance of policing the officers' conduct.' " 377 F. 3d, at 1079 (quoting Ramirez v. Butte-Silver Bow County, 298 F. 3d 1022, 1027 (CA9 2002)). This argument assumes that the executing officer must present the property owner with a copy of the warrant before conducting his search. See 377 F. 3d, at 1079, n. 9. In fact, however, neither the Fourth Amendment nor Rule 41 of the Federal Rules of Criminal Procedure imposes such a requirement. See Groh v. Ramirez, 540 U. S. 551, 562, n. 5 (2004). "The absence of a constitutional requirement that the warrant be exhibited at the outset of the search, or indeed until the search has ended, is ... evidence that the requirement of particular description does not protect an interest in monitoring searches." United States v. Stefonek, 179 F. 3d 1030, 1034 (CA7 1999) (citations omitted). The Constitution protects property owners not by giving them license to engage the police in a debate over the basis for the warrant, but by interposing, ex ante, the "deliberate, impartial judgment of a judicial officer . . . between the citizen and the police." Wong Sun v. United States, 371 U. S. 471, 481-482 (1963), and by providing, ex post, a right to suppress evidence improperly obtained and a cause of action for damages.

Because the Fourth Amendment does not require that the triggering condition for an anticipatory search warrant be set forth in the warrant itself, the Court of Appeals erred in invalidating the warrant at issue here. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Alito took no part in the consideration or decision of this case.

UNITED STATES, PETITIONER v. JEFFREY GRUBBS

on writ of certiorari to the united states court of appeals for the ninth circuit

[March 21, 2006]

Justice Souter, with whom Justice Stevens and Justice Ginsburg join, concurring in part and concurring in the judgment.

I agree with the Court that anticipatory warrants are constitutional for the reasons stated in Part II of the Court's opinion, and I join in the disposition of this case. But I would qualify some points made in Part III.

The Court notes that a warrant's failure to specify the place to be searched and the objects sought violates an express textual requirement of the Fourth Amendment, whereas the text says nothing about a condition placed by the issuing magistrate on the authorization to search (here, delivery of the package of contraband). That textual difference is, however, no authority for neglecting to specify the point or contingency

intended by the magistrate to trigger authorization, and the government should beware of banking on the terms of a warrant without such specification. The notation of a starting date was an established feature even of the objectionable 18th-century writs of assistance, see, e.g., Massachusetts Writs of Assistance Bill, 1762, reprinted in M. Smith, The Writs of Assistance Case 567-568 (1978); Writ of Assistance (English) of George III, 1761, reprinted in id., at 524-527. And it is fair to say that the very word "warrant" in the Fourth Amendment means a statement of authority that sets out the time at which (or, in the case of anticipatory warrants, the condition on which) the authorization begins.**

An issuing magistrate's failure to mention that condition can lead to several untoward consequences with constitutional significance. To begin with, a warrant that fails to tell the truth about what a magistrate authorized cannot inform the police officer's responsibility to respect the limits of authorization, see Groh v. Ramirez, 540 U. S. 551, 560-563, 561, and n. 4 (2004), a failing assuming real significance when the warrant is not executed by the official who applied for it and happens to know the unstated condition. The peril is that if an officer simply takes such a warrant on its face and makes the ostensibly authorized search before the unstated condition has been met, the search will be held unreasonable. It is true that we have declined to apply the exclusionary rule when a police officer reasonably relies on the product of a magistrate's faulty judgment or sloppy practice, see Massachusetts v. Sheppard, 468 U. S. 981, 987991 (1984). But when a government officer obtains what the magistrate says is an anticipatory warrant, he must know or should realize when it omits the condition on which authorization depends, and it is hard to see why the government should not be held to the condition despite the unconditional face of the warrant. Cf. Groh v. Ramirez, supra, at 554-555, 563, and n. 6 (declaring unconstitutional a search conducted pursuant to a warrant failing to specify the items the government asked the magistrate permission to seize in part because "officers leading a search team must 'make sure that they have a proper warrant that in fact authorizes the search and seizure they are about to conduct' " (brackets omitted)).

Nor does an incomplete anticipatory warrant address an owner's interest in an accurate statement of the government's authority to search property. To be sure, the extent of that interest is yet to be settled; in Groh v. Ramirez, supra, the Court was careful to note that the right of an owner to demand to see a copy of the warrant before making way for the police had not been determined, id., at 562, n. 5, and it remains undetermined today. But regardless of any right on the owner's part, showing an accurate warrant reliably "assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search." United States v. Chadwick, 433 U. S. 1, 9 (1977), quoted in Groh v.

Ramirez, supra, at 561. And if a later case holds that the homeowner has a right to inspect the warrant on request, a statement of the condition of authorization would give the owner a right to correct any misapprehension on the police's part that the condition had been met when in fact it had not been. If the police were then to enter anyway without a reasonable (albeit incorrect) justification, the search would certainly be open to serious challenge as unreasonable within the meaning of the Fourth Amendment.

3. AAA v. CARBONELL In a rape case, private complainant failed to appear 4 consecutive orders to take the witness stand in order to satisfy the judge for the existence of probable cause for the issuance of a warrant of arrest.

Judge Carbonell dismissed Criminal Case No. 6983 for lack of probable cause on the ground that the complainant and her witnesses failed to take the witness stand. He claims that under Section 2, Article III of the 1987 Constitution, no 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.

Is Judge Carbonell correct? SUGGESTED ANSWER: No. Judge Carbonell committed grave abuse of discretion. The Supreme Court explained that this constitutional provision does not mandatorily require the judge to personally examine the complainant and her witnesses. Instead, he may opt to personally evaluate the report and supporting documents submitted by the prosecutor or he may disregard the prosecutors report and require the submission of supporting affidavits of witnesses. We reiterated the above ruling in the case of Webb v. De Leon, where we held that before issuing warrants of arrest, judges merely determine the probability, not the certainty, of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. fellester.blogspot.com It is well to remember that there is a distinction between the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest and the preliminary investigation proper which ascertains whether the offender should be held for trial or be released. The determination of probable cause for purposes

of issuing the warrant of arrest is made by the judge. The preliminary investigation proper whether or not there is reasonable ground to believe that the accused is guilty of the offense charged is the function of the investigating prosecutor.

True, there are cases where the circumstances may call for the judges personal examination of the complainant and his witnesses. But it must be emphasized that such personal examination is not mandatory and indispensable in the determination of probable cause for the issuance of a warrant of arrest. The necessity arises only when there is an utter failure of the evidence to show the existence of probable cause. Otherwise, the judge may rely on the report of the investigating prosecutor, provided that he likewise evaluates the documentary evidence in support thereof.

Indeed, what the law requires as personal determination on the part of the judge is that he should not rely solely on the report of the investigating prosecutor. In Okabe v. Gutierrez, we stressed that the judge should consider not only the report of the investigating prosecutor but also the affidavit 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. If the report, taken together with the supporting evidence, is sufficient to sustain a finding of probable cause, it is not compulsory that a personal examination of the complainant and his witnesses be conducted. (AAA vs. Carbonell, G.R. No. 171465, June 8, 2007)

CASE AAA,* Petitioner, G.R. No. 171465 Present: - versus Ynares-Santiago, J. (Chairperson), Austria-Martinez, Chico-Nazario, and Nachura, JJ. Promulgated: June 8, 2007

HON. ANTONIO A. CARBONELL, in his capacity as Presiding Judge, Branch 27, Regional Trial Court, San Fernando City, La Union and ENGR. JAIME O. ARZADON, Respondents.

x ---------------------------------------------------------------------------------------- x

DECISION YNARES-SANTIAGO, J.:

This petition for certiorari[1] assails the December 16, 2005[2] Order of the Regional Trial Court, Branch 27, San Fernando, La Union in Criminal Case No. 6983, dismissing the rape case filed against private respondent Jaime O. Arzadon for lack of probable cause; and its February 3, 2006[3] Order denying petitioners motion for reconsideration. Petitioner worked as a secretary 28, at the Arzadon 16, Automotive 27,

and Car Service Center from February

2001 to August

2001. On May

2001 at about 6:30 p.m., Arzadon asked her to deliver a book to an office located at another building but when she returned to their office, the lights had been turned off and the gate was closed. Nevertheless, she went inside to get her handbag. On her way out, she saw Arzadon standing beside a parked van holding a pipe. He told her to go near him and upon reaching his side, he threatened her with the pipe and forced her to lie on the pavement. He removed her pants and underwear, and inserted his penis into her vagina. She wept and cried out for help but to no avail because there was nobody else in the premises. Petitioner did not report the incident because Arzadon threatened to kill her and her family. But when she discovered that she was pregnant as a consequence of the rape, she narrated the incident to her parents. On July 24, 2002, petitioner filed a complaint for rape against Arzadon. On September 16, 2002, Assistant City Prosecutor Imelda Cosalan issued a Resolution[4] finding probable cause and recommending the filing of an information for rape. Arzadon moved for reconsideration and during the clarificatory hearing held on October 11, 2002, petitioner testified before the investigating prosecutor. However, she failed to attend the next hearing hence, the case was provisionally dismissed. On March 5, 2003, petitioner filed another Affidavit-Complaint[5] with a comprehensive account of the alleged rape incident. The case was assigned to 2nd Assistant Provincial Prosecutor Georgina Hidalgo. During the preliminary investigation, petitioner appeared for clarificatory questioning. On June 11, 2003, the investigating prosecutor issued a Resolution[6] finding that a prima facie case of rape exists and recommending the filing of the information.

Arzadon moved for reconsideration and requested that a panel of prosecutors be constituted to review the case. Thus, a panel of prosecutors was created and after the clarificatory questioning, the panel issued on October 13, 2003 a Resolution[7] finding probable cause and denying Arzadons motion for reconsideration. An Information[8] for rape was filed before the Regional Trial Court, Branch 27, San Fernando, La Union on February 6, 2004, docketed as Criminal Case No. 6415. Thereafter, Arzadon filed a Motion to Hold in Abeyance All Court Proceedings Including the Issuance of a Warrant of Arrest and to Determine Probable Cause for the Purpose of Issuing a Warrant of Arrest.[9] On March 18, 2004, respondent Judge Antonio A. Carbonell granted the motion and directed petitioner and her witnesses to take the witness stand for determination of probable cause. Arzadon also appealed the Resolution of the panel of prosecutors finding probable cause before the Department of Justice. On July 9, 2004, then Acting Secretary of Justice Merceditas Gutierrez found no probable cause and directed the withdrawal of the Information in Criminal Case No. 6415.[10] Upon motion for reconsideration by petitioner, however, Secretary of Justice Raul Gonzales reversed the July 9, 2004 Resolution and issued another Resolution[11] finding that probable cause exists. Thus, a new Information[12] for rape was filed against Arzadon docketed as Criminal Case No. 6983. Consequently, Arzadon filed an Urgent Motion for Judicial Determination of Probable Cause for the Purpose of Issuing a Warrant of Arrest.[13] In an Order datedAugust 11, 2005, respondent Judge Carbonell granted the motion and directed petitioner and her witnesses to take the witness stand. Instead of taking the witness stand, petitioner filed a motion for reconsideration claiming that the documentary evidence sufficiently established the existence of probable cause. Pending resolution thereof, she likewise filed a petition [14] with this Court for the transfer of venue of Criminal Case No. 6983. The case was docketed as Administrative Matter No. 05-12-756-RTC and entitled Re: Transfer of Venue of Criminal Case No. 6983, formerly Criminal Case No. 6415, from the Regional Trial Court, Branch 27, San Fernando City, La Union, to any Court in Metro Manila. In a Resolution[15] dated January 18, 2006, the Court granted petitioners request for transfer of venue. The case was raffled to the Regional Trial Court of Manila, Branch

25, and docketed as Criminal Case No. 06-242289. However, the proceedings have been suspended pending the resolution of this petition. Meanwhile, on December 16, 2005, respondent Judge Carbonell issued the assailed Order dismissing Criminal Case No. 6983 for lack of probable cause. Petitioners motion for reconsideration was denied hence, this petition. Petitioner raises the following issues:[16] I RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT GRANTED THE MOTION FOR DETERMINATION OF PROBABLE CAUSE FILED BY THE PRIVATE RESPONDENT AND THE SUBSEQUENT DENIAL OF THE MOTION FOR RECONSIDERATION II RESPONDENT JUDGE COMMITTED FURTHER ACTS CONSTITUTING GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION WHEN IT ORDERED THE COMPLAINANT AND WITNESSES TO TAKE THE STAND FOR THE PURPOSE OF DETERMINING PROBABLE CAUSE III RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION WHEN HE REFUSED TO INHIBIT FROM FURTHER HANDLING THE CASE DESPITE WHISPERS OF DOUBT ON HIS BIAS AND PARTIALITY IV RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION WHEN IT ISSUED THE ORDER OF FEBRUARY 3, 2006, DENYING THE MOTION FOR RECONSIDERATION, DESPITE THE SUPREME COURT RESOLUTION OF JANUARY 18, 2006, GRANTING THE TRANSFER OF VENUE Petitioner contends that the judge is not required to personally examine the complainant and her witnesses in satisfying himself of the existence of probable cause for the issuance of a warrant of arrest. She argues that respondent Judge Carbonell should have taken into consideration the documentary evidence as well as the transcript of stenographic notes which sufficiently established the existence of probable cause.

Arzadon claims that the petition should be dismissed outright for being the wrong mode of appeal, it appearing that the issues raised by petitioner properly fall under an action for certiorari under Rule 65, and not Rule 45, of the Rules of Court. Respondent Judge Carbonell argues in his Comment[17] that the finding of probable cause by the investigating prosecutor is not binding or obligatory, and that he was justified in requiring petitioner and her witnesses to take the witness stand in order to determine probable cause. The issues for resolution are 1) whether the petition should be dismissed for being the wrong mode of appeal; and 2) whether respondent Judge Carbonell acted with grave abuse of discretion in dismissing Criminal Case No. 6983 for lack of probable cause. The petition has merit. A petition for review on certiorari under Rule 45 is distinct from a petition for certiorari under Rule 65 in that the former brings up for review errors of judgment while the latter concerns errors of jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction. Grave abuse of discretion is not an allowable ground under Rule 45. However, a petition for review on certiorari under Rule 45 may be considered a petition for certiorari under Rule 65 where it is alleged that the respondents abused their discretion in their questioned actions, as in the instant case.[18] While petitioner claims to have brought the instant action under Rule 45, the grounds raised herein involve an alleged grave abuse of discretion on the part of respondent Judge Carbonell. Accordingly, the Court shall treat the same as a petition for certiorari under Rule 65. However, we must point out the procedural error committed by petitioner in directly filing the instant petition before this Court instead of the Court of Appeals, thereby violating the principle of judicial hierarchy of courts. It is well-settled that although the Supreme Court, Court of Appeals and the Regional Trial Courts have concurrent jurisdiction to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction, such concurrence does not give the petitioner unrestricted freedom of choice of court forum.[19] In this case, however, the gravity of the offense charged and the length of time that has passed since the filing of the complaint for rape, compel us to resolve the present controversy in order to avoid further delay.[20]

We thus proceed to the issue of whether respondent Judge Carbonell acted with grave abuse of discretion in dismissing Criminal Case No. 6983 for lack of probable cause. We rule in the affirmative. Respondent Judge Carbonell dismissed Criminal Case No. 6983 for lack of probable cause on the ground that petitioner and her witnesses failed to comply with his orders to take the witness stand. Thus In RESUME therefore, as indubitably borne out by the case record and considering that the Private Prosecutor, despite several admonitions contumaciously nay contemptuously refused to comply/obey this Courts Orders of March 18, 2004, August 11, 2005 and eight (8) other similar Orders issued in open Court that directed the complainant/witnesses to take the witness stand to be asked probing/clarificatory questions consonant with cited jurisprudential rulings of the Supreme Court, this Court in the exercise of its discretion and sound judgment finds and so holds that NO probable cause was established to warrant the issuance of an arrest order and the further prosecution of the instant case. Record also shows in no unclear terms that in all the scheduled hearings of the case, the accused had always been present. A contrario, the private complainant failed to appear during the last four (4) consecutive settings despite due notice without giving any explanation, which to the mind of the Court may indicate an apparent lack of interest in the further prosecution of this case. That failure may even be construed as a confirmation of the Defenses contention reflected in the case record, that the only party interested in this case is the Private prosecutor, prodded by the accuseds alleged hostile siblings to continue with the case. WHEREFORE, premises considered, for utter lack of probable cause, the instant case is hereby ordered DISMISSED.[21] He claims that under Section 2, Article III of the 1987 Constitution, no 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. However, in the leading case of Soliven v. Makasiar,[22] the Court explained that this constitutional provision does not mandatorily require the judge to personally examine the complainant and her witnesses. Instead, he may opt to personally evaluate the report and supporting documents submitted by the prosecutor or he may disregard

the prosecutors report and require the submission of supporting affidavits of witnesses. Thus: 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 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. Sound policy dictates this procedure, otherwise judges would by unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.[23] We reiterated the above ruling in the case of Webb v. De Leon,[24] where we held that before issuing warrants of arrest, judges merely determine the probability, not the certainty, of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence.[25] It is well to remember that there is a distinction between the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest and the preliminary investigation proper which ascertains whether the offender should be held for trial or be released. The determination of probable cause for purposes of issuing the warrant of arrest is made by the judge. The preliminary investigation proper whether or not there is reasonable ground to believe that the accused is guilty of the offense charged is the function of the investigating prosecutor.[26]

True, there are cases where the circumstances may call for the judges personal examination of the complainant and his witnesses. But it must be emphasized that such personal examination is not mandatory and indispensable in the determination of probable cause for the issuance of a warrant of arrest. The necessity arises only when there is an utter failure of the evidence to show the existence of probable cause.[27] Otherwise, the judge may rely on the report of the investigating prosecutor, provided that he likewise evaluates the documentary evidence in support thereof. Indeed, what the law requires as personal determination on the part of the judge is that he should not rely solely on the report of the investigating prosecutor. In Okabe v. Gutierrez,[28] we stressed that the judge should consider not only the report of the investigating prosecutor but also the affidavit 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.[29] If the report, taken together with the supporting evidence, is sufficient to sustain a finding of probable cause, it is not compulsory that a personal examination of the complainant and his witnesses be conducted. In this case, respondent Judge Carbonell dismissed Criminal Case No. 6983 without taking into consideration the June 11, 2003 Resolution of 2nd Assistant Provincial Prosecutor Georgina Hidalgo, the October 13, 2003 Resolution of the panel of prosecutors, and the July 1, 2005 Resolution of the Department of Justice, all of which sustain a finding of probable cause against Arzadon. Moreover, he failed to evaluate the evidence in support thereof. Respondent judges finding of lack of probable cause was premised only on the complainants and her witnesses absence during the hearing scheduled by the respondent judge for the judicial determination of probable cause. Petitioner narrated in detail the alleged rape incident both in her Sinumpaang Salaysay[30] dated July 24, 2002 and Complaint-Affidavit[31] dated March 5, 2003. She attended several clarificatory hearings that were conducted in the instant case. The transcript of stenographic notes[32] of the hearing held on October 11, 2002 shows that she positively identified Arzadon as her assailant, and the specific time and place of the incident. She also claimed that she bore a child as a result of the rape and, in support of her contentions, presented the child and her birth certificate as evidence. In contrast, Arzadon merely relied on the defense of alibi which is the weakest of all defenses. After a careful examination of the records, we find that there is sufficient evidence to establish probable cause. The gravamen of rape is the carnal knowledge by the accused of the private complainant under any of the circumstances provided in Article

335 of the Revised Penal Code, as amended.[33] Petitioner has categorically stated that Arzadon raped her, recounting her ordeal in detail during the preliminary investigations. Taken with the other evidence presented before the investigating prosecutors, such is sufficient for purposes of establishing probable cause. It is wellsettled that a finding of probable cause need not be based on clear and convincing evidence beyond reasonable doubt. Probable cause is that which engenders a wellfounded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial. It does not require that the evidence would justify conviction. [34] It is clear therefore that respondent Judge Carbonell gravely abused his discretion in dismissing Criminal Case No. 6983 for lack of probable cause on the ground that petitioner and her witnesses failed to take the witness stand. Considering there is ample evidence and sufficient basis on record to support a finding of probable cause, it was unnecessary for him to take the further step of examining the petitioner and her witnesses. Moreover, he erred in holding that petitioners absences in the scheduled hearings were indicative of a lack of interest in prosecuting the case. In fact, the records show that she has relentlessly pursued the same. Needless to say, a full-blown trial is to be preferred to ferret out the truth.[35] As it were, the incidents of this case have been pending for almost five years without having even passed the preliminary investigation stage. Suffice to say that the credibility of petitioner may be tested during the trial where the respective allegations and defenses of the complainant and the accused are properly ventilated. It is only then that the truth as to Arzadons innocence or guilt can be determined. WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court, Branch 27, San Fernando, La Union dated December 16, 2005, and February 3, 2006 dismissing Criminal Case No. 6983 for lack of probable cause are REVERSED and SET ASIDE, and the Information in the said case is hereby REINSTATED. The Regional Trial Court, Branch 25, Manila is DIRECTED to take cognizance of the case and let the records thereof be REMANDED to the said court for further proceedings. SO ORDERED. 4. LOS ANGELES COUNTY v. RETTELE 2007 PDF (SEPARATE FILE)

5. VALEROSO v. CA 2009 JERRY VALEROSO VS. PEOPLE OF THE PHILIPPINES September 3, 2009 G.R. No. 164815 STATEMENT OF THE CASE: A petition for review on certiorari involving the decision of the Hon. Court of Appeals which affirmed that of the RTC of Quezon City in finding the petitioner-accused Jerry Valeroso liable of illegal possession of firearm. FACTS OF THE CASE: Petitioner was charged with illegal possession of firearm and ammunition under P.D. 1866 and was found liable as charged before the RTC of Quezon City. On July 10, 1996, the Central District Command served a duly issued warrant of arrest to Sr. Insp. Jerry Valeroso in a case of kidnapping for ransom. Valeroso was found and arrested in INP Central Station in Culiat, Quezon City where he was about to board a tricycle. He was bodily searched and after which a firearm with live ammunition was found tucked in his waist. The subject firearm was later verified by the Firearms and Explosive Division at Camp Crame and was confirmed and revealed to have not been issued to the petitioner but to another person. The defense on the other hand contended that Valeroso was arrested and searched in the boarding house of his children in New Era Quezon City. He was aroused from his slumber when four heavily armed men in civilian clothes bolted the room. The pointed their guns on him and pulled him out of the room as the raiding team went back inside, searched and ransacked the room. Moments later an operative came out of the room exclaiming that he has found a gun inside. Adrian Yuson, an occupant to the adjacent room testified for the defense. SPO3 Timbol, Jr. testified that the firearm with live ammunition was issued to Jerry Valeroso by virtue of a Memorandum Receipt. The petitioner was found guilty as charged by the RTC. On appeal, the appellate court affirmed the same. Hence this petition. Petitioner raised the issue of legalilty of the search and the admissibility and validity of the evidence obtained as the same was the fruit of the poisonous tree. ISSUE: Whether or not the warrantless search and seizure of the firearm and ammunition valid. RULING: WHEREFORE, in view of the foregoing, the February 22, 2008 Decision and June 30, 2008 Resolution are RECONSIDERED and SET ASIDE. Sr. Insp. Jerry Valeroso is hereby ACQUITTED of illegal possession of firearm and ammunition. RATIONALE/REASON: From the foregoing narration of facts, we can readily conclude that the arresting officers served the warrant of arrest without any resistance from

Valeroso. They placed him immediately under their control by pulling him out of the bed, and bringing him out of the room with his hands tied. To be sure, the cabinet which, according to Valeroso, was locked, could no longer be considered as an "area within his immediate control" because there was no way for him to take any weapon or to destroy any evidence that could be used against him. The arresting officers would have been justified in searching the person of Valeroso, as well as the tables or drawers in front of him, for any concealed weapon that might be used against the former. But under the circumstances obtaining, there was no comparable justification to search through all the desk drawers and cabinets or the other closed or concealed areas in that room itself. It is worthy to note that the purpose of the exception (warrantless search as an incident to a lawful arrest) is to protect the arresting officer from being harmed by the person arrested, who might be armed with a concealed weapon, and to prevent the latter from destroying evidence within reach. The exception, therefore, should not be strained beyond what is needed to serve its purpose. In the case before us, search was made in the locked cabinet which cannot be said to have been within Valerosos immediate control. Thus, the search exceeded the bounds of what may be considered as an incident to a lawful arrest. Nor can the warrantless search in this case be justified under the "plain view doctrine." The "plain view doctrine" may not be used to launch unbridled searches and indiscriminate seizures or to extend a general exploratory search made solely to find evidence of defendants guilt. The doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. Indeed, the police officers were inside the boarding house of Valerosos children, because they were supposed to serve a warrant of arrest issued against Valeroso. In other words, the police officers had a prior justification for the intrusion. Consequently, any evidence that they would inadvertently discover may be used against Valeroso. However, in this case, the police officers did not just accidentally discover the subject firearm and ammunition; they actually searched for evidence against Valeroso. Clearly, the search made was illegal, a violation of Valerosos right against unreasonable search and seizure. Consequently, the evidence obtained in violation of said right is inadmissible in evidence against him.

6. GALVANTE v. CASIMIRO 2008 FELICIANO GALVANTE, Petitioner, G.R. No. 162808

Present: YNARES-SANTIAGO, J., HON. ORLANDO C. CASIMIRO, Chairperson, Deputy Ombudsman for the AUSTRIA-MARTINEZ, Military and Other Law CHICO-NAZARIO, Enforcement Offices, BIENVENIDO C. NACHURA, and BLANCAFLOR, Director, DENNIS REYES, JJ. L. GARCIA, Graft Investigation and Prosecution Officer, SPO4 Promulgated: RAMIL AVENIDO, PO1 EDDIE April 22, 2008 DEGRAN, PO1 VALENTINO RUFANO, and PO1 FEDERICO BALOLOT, Respondents. x-------------------------- -------------------------------x DECISION AUSTRIA-MARTINEZ, J.: Assailed herein by Petition for Certiorari and Mandamus under Rule 65 of the Rules of Court are the October 30, 2003 Resolution[1] of the Office of the Deputy Ombudsman for the Military and Other Law Enforcement Offices - Office of the Ombudsman (Ombudsman) which dismissed for lack of probable cause the criminal complaint, docketed as OMB-P-C-02-0109-B, filed by Feliciano Galvante[2] (petitioner) against SPO4 Benjamin Conde, PO1 Ramil Avenido, PO1 Eddie Degran, PO1 Valentino Rufano, and PO1 Federico Balolot (private respondents) for arbitrary detention, illegal search and grave threats; and the January 20, 2004 Ombudsman Order[3] which denied his motion for reconsideration. The facts are of record. In the afternoon of May 14, 2001 at Sitio Cahi-an, Kapatungan, Trento, Agusan del Sur, private respondents confiscated from petitioner one colt pistol super .38 automatic with serial no. 67973, one short magazine, and nine super .38 live ammunitions.[4] The confiscated materials were covered by an expired Memorandum Receipt dated September 2, 1999.[5] Consequently, the Assistant Provincial Prosecutor filed against petitioner an Information[6] for Illegal Possession of Firearms and Ammunitions in Relation to Commission on Elections (COMELEC) Resolution No. 3258, docketed as Criminal Case No. 5047, before the Regional Trial Court (RTC), Prosperidad, Agusan del Sur. - versus -

Pending resolution of Criminal Case No. 5047, petitioner filed against private respondents an administrative case, docketed as Administrative Case No. IASOB-020007 for Grave Misconduct, before the Internal Affairs Service (IAS), Region XIII, Department of Interior and Local Government (DILG);[7] and a criminal case, docketed as OMB-P-C-02-0109-B for Arbitrary Detention, Illegal Search and Grave Threats, before the Ombudsman.[8] In the June 21, 2001 Affidavit-Complaint he filed in both cases, petitioner narrated how, on May 14, 2001, private respondents aimed their long firearms at him, arbitrarily searched his vehicle and put him in detention, thus: 1. That sometime on May 14, 2001 I left my house at around 1:00 oclock in the afternoon after having lunch for Sitio Cahian, Brgy. Kapatungan, Trento, Agusan del Sur to meet retired police PercivalPlaza and inquire about the retirement procedure for policemen; That upon arrival at the house of retired police Percival Plaza, together with Lorenzo Sanoria, Delfin Ramirez and Pedro Ramas who asked for a ride from the highway in going to Sitio Cahi-an, I immediately went down of the jeep but before I could call Mr. Plaza, four policemen in uniform blocked my way; That the four policemen were [private respondents] PO1 Romil Avenido PNP, PO1 Valentino Rufano, PNP both member of 142nd Company, Regional Mobile Group and PO1 Eddie Degran PNP and PO1 Federico Balolot PNP members of 1403 Provl Mobile Group, all of Bunawan Brook, Bunawan, Agusan del Sur; who all pointed their long firearms ready to fire [at] me, having heard the sound of the release of the safety lock; That raising my arms, I heard [private respondent] PO1 Avenido saying, ANG IMONG PUSIL, IHATAG which means Give me your firearm, to which I answered, WALA MAN KO'Y PUSIL translated as I have no firearm, showing my waistline when I raised my T-shirt; That my other companions on the jeep also went down and raised their arms and showed their waistline when the same policemen and a person in civilian attire holding an armalite also pointed their firearms to them to which Mr. Percival Plaza who came down from his house told them not to harass me as I am also a former police officer but they did not heed Mr. Plaza's statements; That while we were raising our arms [private respondent] SPO4 Benjamin Conde, Jr. went near my owner type jeep and conducted a search. To which I asked them if they have any search warrant; That after a while they saw my super .38 pistol under the floormat of my jeep and asked me of the MR of the firearm but due to fear that their long arms were still pointed to us, I searched my wallet and gave the asked [sic] document;

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8. 9.

That immediately the policemen left me and my companions without saying anything bringing with them the firearm; That at about 2:30 p.m., I left Mr. Percival's house and went to Trento Police Station where I saw a person in civilian attire with a revolver tucked on his waist, to which I asked the police officers including those who searched my jeep to apprehend him also;

10. That nobody among the policemen at the station made a move to apprehend the armed civilian person so I went to the office of Police Chief Rocacorba who immediately called the armed civilian to his office and when already inside his office, the disarming was done; 11. That after the disarming of the civilian I was put to jail with the said person by Police Chief Rocacorba and was released only at 4:00 o'clock in the afternoon of May 16, 2001 after posting a bailbond; 12. That I caused the execution of this document for the purpose of filing cases of Illegal Search, Grave Misconduct and Abuse of Authority against SPO4 Benjamin Conde, Jr., of Trento Police Station; PO1 Ramil Avenido, PO1 Velantino Rufano, PO1 Federico Balolot and PO1 Eddie Degran.[9] Petitioner also submitted Lorenzo Sanoria and Percival Plaza. the Joint Affidavit[10] of his witnesses,

Private respondent Conde filed a Counter-Affidavit dated March 20, 2002, where he interposed the following defenses: First, he had nothing to do with the detention of petitioner as it was Chief of Police/Officer-in-Charge Police Inspector Dioscoro Mehos Rocacorba who ordered the detention. Petitioner himself admitted this fact in his own Complaint-Affidavit;[11] and Second, he denies searching petitioner's vehicle,[12] but admits that even though he was not armed with a warrant, he searched the person of petitioner as the latter, in plain view, was committing a violation of COMELEC Resolutions No. 3258 and No. 3328 by carrying a firearm in his person. Private respondents Avenido, Degran, Rufano and Balolot filed their Joint-Affidavit dated March 25, 2002, which contradicts the statements of private respondent Conde,viz: 1. that we executed a joint counter-affidavit dated August 28, 2001 where we stated among other things, that we saw Feleciano Nani Galvante armed with a handgun/pistol tucked on his waist; that this statement is not accurate because the truth of the matter is that the said handgun was taken by SPO4 BENJAMIN CONDE, JR., who was acting as

2.

our team leader during the May 14, 2001 Elections, from the jeep of Mr. Galvante after searching the same; and 3. that we noticed the aforementioned discrepancy in our affidavit dated August 28, 2001 after we have already affixed our signatures thereon.[13]

Consequently, petitioner filed an Affidavit of Desistance dated March 25, 2002 with both the IAS and Ombudsman, absolving private respondents Avenido, Degran,Rufano and Balolot, but maintaining that private respondent Conde alone be prosecuted in both administrative and criminal cases.[14] On July 17, 2002, the IAS issued a Decision in Administrative Case No. IASOB-020007, finding all private respondents guilty of grave misconduct but penalized them with suspension only. The IAS noted however that private respondents were merely being [enthusiastic] in the conduct of the arrest in line of duty. [15] Meanwhile, in Criminal Case No. 5047, petitioner filed with the RTC a Motion for Preliminary Investigation and to Hold in Abeyance the Issuance of or Recall the Warrant of Arrest.[16] The RTC granted the same in an Order[17] dated August 17, 2001. Upon reinvestigation, Prosecutor II Eliseo Diaz, Jr. filed a Reinvestigation with Motion to Dismiss dated November 22, 2001, recommending the dismissal of Criminal Case No. 5047 on the ground that the action of the policemen who conducted the warrantless search in spite of the absence of any circumstances justifying the same intruded into the privacy of the accused and the security of his property.[18] Officer-in-Charge Prosecutor IIVictoriano Pag-ong approved said recommendation.[19] The RTC granted the prosecution's motion to dismiss in an Order[20] dated January 16, 2003. Apparently unaware of what transpired in Criminal Case No. 5047, Ombudsman Investigation & Prosecution Officer Dennis L. Garcia issued in OMB-P-C-02-0109-B, the October 30, 2003 Resolution, to wit: After a careful evaluation, the undersigned prosecutor finds no probable cause for any of the offenses charged against above-named respondents. The allegations of the complainant failed to establish the factual basis of the complaint, it appearing from the records that the incident stemmed from a valid warrantless arrest. The subsequent execution of an affidavit of desistance by the complainant rendered the complaint even more uncertain and subject to doubt, especially so since it merely exculpated some but not all of the respondents. These circumstances, coupled with the presumption of regularity in the performance of duty, negates any criminal liability on the part of the respondents.

WHEREFORE, premises considered, it is hereby recommended that the above-captioned case be DISMISSED for lack of probable cause.[21] (Emphasis supplied) Upon the recommendation of Director Bienvenido C. Blancaflor, Deputy Ombudsman for the Military Orlando C. Casimiro (Deputy Ombudsman) approved the October 30, [22] 2003Resolution. In his Motion for Reconsideration,[23] petitioner called the attention of the Ombudsman to the earlier IAS Decision, the Reinvestigation with Motion to Dismiss of Prosecutor II Eliseo Diaz, Jr. and the RTC Order, all of which declared the warrantless search conducted by private respondents illegal,[24] which are contradicted by the October 30, 2003 Ombudsman Resolution declaring the warrantless search legal. The Ombudsman denied petitioner's motion for reconsideration on the ground that the latter offered no new evidence or errors of law which would warrant the reversal or modification[25] of its October 30, 2003 Resolution. Petitioner filed the present petition, attributing to Deputy Ombudsman Casimiro, Director Blancaflor and Prosecutor Garcia (public respondents) the following acts of grave abuse of discretion: I. Public respondents acted without or in excess of their jurisdiction and/or with grave abuse of discretion amounting to lack or excess of jurisdiction when, in their Resolution dated October 30, 2003, public respondents found that the incident upon which petitioner's criminal complaint was based stemmed from a valid warrantless arrest and dismissed petitioner's complaint despite the fact that: A. Petitioner has clearly shown that the search conducted by the private respondents was made without a valid warrant, nor does it fall under any of the instances of valid warrantless searches. B. Notwithstanding the absence of a valid warrant, petitioner was arrested and detained by the private respondents. II. Public respondents acted without or in excess of their jurisdiction and/or with grave abuse of discretion amounting to lack or excess of jurisdiction when, in their Order dated January 20, 2004, public respondents denied the petitioner's motion for reconsideration in a capricious, whimsical, despotic and arbitrary manner. [26] In its Memorandum,[27] the Office of the Solicitor General argued that public respondents acted within the bounds of their discretion in dismissing OMB-P-C-02-0109-B given that private respondents committed no crime in searching petitioner and confiscating his firearm as the former were merely performing their duty of enforcing the law against illegal possession of firearms and the COMELEC ban against the carrying of firearms outside of one's residence.

Private respondent Conde filed a Comment[28] and a Memorandum for [29] himself. Private respondents Avenido, Degran, Rufano and Balolot filed their separate LetterComment dated June 25, 2004.[30] The petition lacks merit. The Constitution vests in the Ombudsman the power to determine whether there exists reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof and, thereafter, to file the corresponding information with the appropriate courts.[31] The Court respects the relative autonomy of the Ombudsman to investigate and prosecute, and refrains from interfering when the latter exercises such powers either directly or through the Deputy Ombudsman,[32] except when the same is shown to be tainted with grave abuse of discretion amounting to lack or excess of jurisdiction.[33] Grave abuse of discretion is an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to act in contemplation of law as when judgment rendered is not based on law and evidence but on caprice, whim and despotism.[34] This does not obtain in the present case. It is noted that the criminal complaint which petitioner filed with the Ombudsman charges private respondents with warrantless search, arbitrary detention, and grave threats. The complaint for warrantless search charges no criminal offense. The conduct of a warrantless search is not a criminal act for it is not penalized under the Revised Penal Code (RPC) or any other special law. What the RPC punishes are only two forms of searches: Art. 129. Search warrants maliciously obtained and abuse in the service of those legally obtained. - In addition to the liability attaching to the offender for the commission of any other offense, the penalty of arresto mayor in its maximum period to prision correccional in its minimum period and a fine not exceeding P1,000.00 pesos shall be imposed upon any public officer or employee who shall procure a search warrant without just cause, or, having legally procured the same, shall exceed his authority or use unnecessary severity in executing the same. Art. 130. Searching domicile without witnesses. - The penalty of arresto mayor in its medium and maximum periods shall be imposed upon a public officer or employee who, in cases where a search is proper, shall search the domicile, papers or other belongings of any person, in the absence of the latter, any member of his family, or in their default, without the presence of two witnesses residing in the same locality. Petitioner did not allege any of the elements of the foregoing felonies in his AffidavitComplaint; rather, he accused private respondents of conducting a search on his vehicle without

being armed with a valid warrant. This situation, while lamentable, is not covered by Articles 129 and 130 of the RPC. The remedy of petitioner against the warrantless search conducted on his vehicle is civil, under Article 32, in relation to Article 2219[36] (6) and (10) of the Civil Code, which provides:
[35]

Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: xxxx (9) The right to be secure in ones person, house, papers, and effects against unreasonable searches and seizures; xxxx The indemnity shall include moral damages. Exemplary damages may also be adjudicated. and/or disciplinary and administrative, under Section 41 of Republic Act No. 6975.[37] To avail of such remedies, petitioner may file against private respondents a complaint for damages with the regular courts[38] or an administrative case with the PNP/DILG,[39] as petitioner did in Administrative Case No. IASOB-020007, and not a criminal action with the Ombudsman. Public respondents' dismissal of the criminal complaint for illegal search which petitioner filed with the Ombudsman against private respondents was therefore proper, although the reasons public respondents cited for dismissing the complaint are rather off the mark because they relied solely on the finding that the warrantless search conducted by private respondents was valid and that the Affidavit of Desistance which petitioner executed cast doubt on the veracity of his complaint.[40] Public respondents completely overlooked the fact that the criminal complaint was not cognizable by the Ombudsman as illegal search is not a criminal offense. Nevertheless, the result achieved is the same: the dismissal of a groundless criminal complaint for illegal search which is not an offense under the RPC. Thus, the Court need not resolve the issue of whether or not public respondents erred in their finding on the validity of the search for that issue is completely hypothetical under the circumstance. The criminal complaint for abitrary detention was likewise properly dismissed by public respondents. To sustain a criminal charge for arbitrary detention, it must be shown that (a) the offender is a public officer or employee, (b) the offender detained the complainant, and (c) the detention is without legal grounds.[41] The second element was not alleged by petitioner in his

Affidavit-Complaint. As pointed out by private respondent Conde in his Comment[42] and Memorandum,[43] petitioner himself identified in his Affidavit-Complaint that it was Police Chief Rocacorba who caused his detention. Nowhere in said affidavit did petitioner allege that private respondents effected his detention, or were in any other way involved in it.[44] There was, therefore, no factual or legal basis to sustain the criminal charge for arbitrary detention against private respondents. Finally, on the criminal complaint for grave threats, the Solicitor General aptly pointed out that the same is based merely on petitioner's bare allegation that private respondents aimed their firearms at him.[45] Such bare allegation stands no chance against the well-entrenched rule applicable in this case, that public officers enjoy a presumption of regularity in the performance of their official function.[46] The IAS itself observed that private respondents may have been carried away by their enthusiasm in the conduct of the arrest in line of duty.[47] Petitioner expressed the same view when, in his Affidavit of Desistance, he accepted that private respondents may have been merely following orders when they pointed their long firearms at him. All said, public respondents did not act with grave abuse of discretion in dismissing the criminal complaint against private respondents. WHEREFORE, the petition is DENIED. No costs. SO ORDERED. 7. CAMARA v. MUN COURT (1967) Brief Fact Summary. An inspector from the Department of Health entered a home to investigate possible violations of a Citys housing code without a warrant.

Synopsis of Rule of Law. [A]dministrative searches of the kind at issue here are significant intrusions upon the interests protected by the Fourth Amendment, that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual, and that the reasons put forth in [Frank v. Maryland] and in other cases for upholding these warrantless searches are insufficient to justify so substantial a weakening of the Fourth Amendments protections.

Facts. On November 6, 1963, an inspector of the Division of Housing Inspection of the San Francisco Department of Public Health entered an apartment building to make a routine annual inspection for possible violations of the citys Housing Code. The inspector was informed that the Appellant was using part of his leasehold as a personal residence. The inspector confronted the Appellant and demanded to inspect the premises because residential use was not allowed on the first floor of the apartment building. The Appellant did not allow the inspector to enter because he did not have a warrant. The inspector attempted to obtain access to Appellants apartment a second time two days later, and again the Appellant refused to grant him access. The Appellant then was sent a summons ordering him to appear at the district attorneys office. The Appellant did not appear and a few weeks later two other inspectors attempted to gain access to his apartment and were again refused because they did not have a search warrant. A complaint was then filed against the Appellant for violation of the Housing Code. His demurrer was denied and he filed a writ of prohibition. The court of Appeals held the housing section does not violate Fourth Amendment rights because it is part of a regulatory scheme which is essentially civil rather than criminal in nature, inasmuch as that section creates a right of inspection which is limited in scope and may not be exercised under unreasonable conditions.

Issue. [W]hether administrative inspection programs, as presently authorized and conducted, violate Fourth Amendment rights as those rights are enforced against the States through the Fourteenth Amendment? Held. Yes. [Frank v. Maryland], to the extent that it sanctioned such warrantless inspections, must be overruled. In [Frank v. Maryland], [the Supreme Court] upheld the conviction of one who refused to permit a warrantless inspection of private premises for the purposes of locating and abating a suspected public nuisance. [T]he Frank opinion has generally been interpreted as carving out an additional exception to the rule that warrantless searches are unreasonable under the Fourth Amendment. The majority here observed, [t]he practical effect of this system is to leave the occupant subject to the discretion of the official in the field. This is precisely the discretion to invade private property which we have consistently circumscribed by a requirement that a disinterested party warrant the need to search. We simply cannot say that the protections provided by the warrant procedure are not needed in this context; broad statutory safeguards are no substitute for individualized review, particularly when those safeguards may only be invoked at the risk of a criminal penalty.

Unfortunately, there can be no ready test for determining reasonableness [of a search] other than by balancing the need to search against the invasion which the search entails. But [the majority thought] that a number of persuasive factors combine to support the reasonableness of area code-enforcement inspections. First, such programs have a long history of judicial and public acceptance. Second, the public interest demands that all dangerous conditions be prevented or abated, yet it is doubtful that any other canvassing technique would achieve acceptable results. Many such conditions faulty wiring is an obvious example are not observable from outside the building and indeed may not be apparent to the inexpert occupant himself. Finally, because the inspections are neither personal in nature nor aimed at the discovery of evidence of crime, they involve a relatively limited invasion of the urban citizens privacy. Further, [after] concluded that the area inspection is a reasonable search of private property within the meaning of the Fourth Amendment, [the majority observed] it is obvious that probable cause to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. Such standards, which will vary with the municipal program being enforced, may be based upon the passage of time, the nature of the building (e. g., a multi-family apartment house), or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling. It has been suggested that so to vary the probable cause test from the standard applied in criminal cases would be to authorize a synthetic search warrant and thereby to lessen the overall protections of the Fourth Amendment. Moreover, [t]he warrant procedure is designed to guarantee that a decision to search private property is justified by a reasonable governmental interest. But reasonableness is still the ultimate standard. If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant. Such an approach neither endangers time-honored doctrines applicable to criminal investigations nor makes a nullity of the probable cause requirement in this area. It merely gives full recognition to the competing public and private interests here at stake and, in so doing, best fulfills the historic purpose behind the constitutional right to be free from unreasonable government invasions of privacy. Discussion. The majority was careful not to limit all searches in emergency circumstances. It observed: Since our holding emphasizes the controlling standard of reasonableness, nothing we say today is intended to foreclose prompt inspections, even without a warrant, that the law has traditionally upheld in emergency situations. On the other hand, in the case of most routine area inspections, there is no compelling urgency to inspect at a particular time or on a particular day. Moreover, most citizens allow inspections of their property without a warrant. Thus, as a practical matter and in light of the Fourth Amendments requirement that a warrant specify the property to be searched, it seems likely that warrants should normally be sought only after entry is refused unless there has been a citizen complaint or there is other satisfactory reason

for securing immediate entry. Similarly, the requirement of a warrant procedure does not suggest any change in what seems to be the prevailing local policy, in most situations, of authorizing entry, but not entry by force, to inspect. 8. SJS v. DDB (2008) PDF FILE

9. KYLLO v. US (2001) Brief Fact Summary. The police obtained evidence of a marijuana growing operation inside the defendant, Kyllos (the defendant) home, by using a thermal imaging device from outside the home. The police used the device to gather evidence to support issuance of a search warrant for the home. Synopsis of Rule of Law. The use of a device by the government, which is not generally used by the public, to obtain evidence from inside a home is a presumptively unreasonable search without a warrant under the Fourth Amendment of the United States Constitution (Constitution). Facts. Upon suspicion that the defendant was growing marijuana in his home, police used a thermal-imaging device to detect heat radiating from the defendants home. With this information, police obtained a search warrant for the home. Issue. Does the use of a device by the government to obtain evidence from a constitutionally protected area without physical intrusion constitute a search under the Fourth Amendment of the Constitution? Held. Where police obtain information about the inside of a home without physical intrusion, using a device not normally used by the public, the police action constitutes a Fourth Amendment search and is presumptively unreasonable without a warrant. Discussion. The Fourth Amendment of the Constitution protects persons and their property from unreasonable searches by the government. The home is one place where society deems an expectation of privacy reasonable. In order to preserve this degree of privacy, government searches under these circumstances must be supported by a warrant.

The Fourth Amendment protections are not conditional upon the quality of information obtained by the government. So long as there is a subjective expectation of privacy and society is willing to recognize this expectation as reasonable, the government must obtain a warrant before conducting a search. 10. US v. JONES (2012) ________________________________ No. 101259. Argued November 8, 2011Decided January 23, 2012 ________________________________ The Government obtained a search warrant permitting it to install a Global-Positioning-System (GPS) tracking device on a vehicle registered to respondent Joness wife. The warrant authorized installation in the District of Columbia and within 10 days, but agents installed the device on the 11th day and in Maryland. The Government then tracked the vehicles movements for 28 days. It subsequently secured an indictment of Jones and others on drug trafficking conspiracy charges. The District Court suppressed the GPS data obtained while the vehicle was parked at Joness residence, but held the remaining data admissible because Jones had no reasonable expectation of privacy when the vehicle was on public streets. Jones was convicted. The D. C. Circuit reversed, concluding that admission of the evidence obtained by warrantless use of the GPS device violated the Fourth Amendment. Held: The Governments attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicles movements, constitutes a search under the Fourth Amendment. Pp. 312. (a) The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Here, the Governments physical intrusion on an effect for the purpose of obtaining information constitutes a search. This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted. Pp. 34. (b) This conclusion is consistent with this Courts Fourth Amendment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the analysis of Justice Harlans concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a persons reasonable expectation of privacy, id., at 360.

Here, the Court need not address the Governments contention that Jones had no reasonable expectation of privacy, because Joness Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. Kyllo v. United States, 533 U. S. 27. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test. See Alderman v. United States, 394 U. S. 165; Soldal v. Cook County, 506 U. S. 56. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468 U. S. 705post-Katz cases rejecting Fourth Amendment challenges to beepers, electronic tracking devices representing another form of electronic monitoringdo not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v. United States, 466 U. S. 170, also do not support the Governments position. Pp. 412. (c) The Governments alternative argumentthat if the attachment and use of the device was a search, it was a reasonable oneis forfeited because it was not raised below. 11. POLLO v. CONSTANTINO-DAVID (2011) The Extent of the Right to Privacy of Government Employees This is NOT good news for government employees.

On October 18, 2011, the Supreme Court promulgated its decision in Pollo vs.Constantino-David, G.R. No. 181881. This case involved a search of an office computer assigned to the petitioner, an employee of the Civil Service Commission Regional Office No. IV (CSC-ROIV). The search was a consequence of an anonymous letter-complaint received by respondent CSC Chairperson alleging that the chief of the Mamamayan muna hindi mamaya na division of CSC-ROIV has been lawyering for public officials with pending cases in the CSC. The employees personal files stored in the computer, many of which were draft pleadings or letters in connection with administrative cases in the CSC and other tribunals, were used as evidence in the administrative proceedings subsequently initiated against him. [To read a digest of this case, please click here.]

The petitioner was eventually dismissed from service by the CSC. The dismissal was affirmed by the Court of Appeals. Before the Supreme Court, the petitioner raised as pivotal issue the validity of the search on his office computer, contending that this violated his right to privacy. The High Tribunal held that the search, made in relation to an investigation authorized by the CSC Chairperson and which occasioned the copying of petitioner's personal files, is lawful and does not transgress his constitutional right to privacy even if done without his knowledge and consent.

According to the Court, the petitioner had NO reasonable expectation of privacy in his office and computer files. Moreover, the search authorized by the respondent CSC Chairperson and the concomitant copying of the contents of the hard drive on petitioners office computer is reasonable in its inception and scope. The Court thus sustained the use of these files in the administrative case against the petitioner, DENIED the petition and AFFIRMED the CSC and the Court of Appeals (CA) in finding the petitioner GUILTY of (1) Dishonesty, (2) Grave Misconduct, (3) Conduct Prejudicial to the Best Interest of the Service, and (4) Violation of Republic Act 6713; and in meting him the penalty of DISMISSAL from service.

Justice Martin S. Villarama wrote the Decision for the Court En Banc. Fully concurring with him are Chief Justice Renato Corona and Associate Justices Arturo Brion, Diosdado Peralta, Jose Perez, Jose Mendoza, Bienvenido Reyes, and Estela Perlas-Bernabe. Associate Justice Maria Lourdes P.A. Sereno also concurred but share[d] J. Carpios concerns.

Senior Associate Justice Antonio T. Carpio wrote a Separate Concurring Opinion. He concurred in the DENIAL of the petition, but asserted a statutory basis for the disposition of the case. He held that the CSCs computer use regulation, which opens to access for internal scrutiny anything CSC employees create, store, send, or receive in the computer system, has a statutory basis under the Government Auditing Code of the Philippines, which

provides that [g]overnment x x x property shall be x x x used solely for public purposes. In short, any private use of a government property, like a government-owned computer, is prohibited by law. Consequently, a government employee cannot expect any privacy when he uses a government-owned computer because he knows he cannot use the computer for any private purpose.

Justice Carpio however asserted that the CSC office regulation denying CSC employees privacy expectation in anything they create, store, send, or receive in the computer system, although valid as to petitioner Briccio Pollo, is constitutionally infirm insofar as [it] excludes from its ambit the three CSC commissioners solely by reason of their rank, and not by reason of the confidential nature of the electronic data they generate. The only way by which the CSC commissioners, or for that matter, any of [the CSC] employees, can constitutionally take themselves out of the ambit of the CSCs no-privacy regulation is if they (1) invoke the doctrine of confidentiality of information, and (2) prove that the information sought to be exempted indeed falls under any of the classes of confidential information. Sensitivity of content, not rank, justifies enjoyment of this very narrow constitutional privilege.

On the other hand, Justice Lucas Bersamin, with whom Associate Justices Presbitero Velasco Jr., Teresita Leonardo-De Castro, and Roberto Abad concurred, wrote a Concurring and Dissenting Opinion. He also voted to DENY the petition and concurred with the majority as regards the petitioners administrative liability. He however qualified that the petitioners right to privacy should be respected as to the files created, stored, sent or received after office hours. He further qualified that the decision be applied pro hac vice only.

Justice Bersamin held that even without Office Memorandum (OM) No. 10, Series of 2002 being issued by the respondent CSC Chairperson, the CSC employees, including the petitioner, have a reduced expectation of privacy in their workplace. He however found that the petitioner did not absolutely waive his right to privacy in this case. He noted that OM No. 10 contains an exception giving users, including the petitioner, privileged access to the Internet for knowledge search, information exchange, and others; and has explicitly

allowed them to use the computer resources for personal purposes after office hours. Thus, petitioner still had a reasonable expectation of privacy vis--vis whatever communications he created, stored, sent, or received after office hours through using the Commissions computer resources, such that he could rightfully invoke the Constitutional protection to the privacy of these communication and correspondence.

Thus, while conceding that respondent David had legal authority and good reasons to issue her order to back up the petitioners files as an exercise of her power of supervision, Justice Bersamin did not agree with the Majoritys holding for the confiscation of all the files stored in [petitioners] computer. The need to control or prevent activities constitutionally subject to the States regulation may not be filled by means that unnecessarily and broadly sweep and thereby invade the area of protected freedoms. For that reason, respondent Davids order to back up petitioners files should only cover the files corresponding to communications created, stored, sent, or received during office hours. There will be no difficulty in identifying and segregating the files created, stored, sent, or received during and after office hours with the constant advancement and improvement of technology and the presumed expertise of the Commissions information systems analysts. 12. US v. VERDUGO-URQUIDEZ (1990) CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 88-1353. Argued November 7, 1989 Decided February 28, 1990 After the Government obtained an arrest warrant for respondent - a Mexican citizen and resident believed to be a leader of an organization that smuggles narcotics into this country - he was apprehended by Mexican police and transported here, where he was arrested. Following his arrest, Drug Enforcement Administration (DEA) agents, working with Mexican officials, searched his Mexican residences and seized certain documents. The District Court granted his motion to suppress the evidence, concluding that the Fourth Amendment - which protects "the people" against unreasonable searches and seizures - applied to the

searches, and that the DEA agents had failed to justify searching the premises without a warrant. The Court of Appeals affirmed. Citing Reid v. Covert, 354 U.S. 1 - which held that American citizens tried abroad by United States military officials were entitled to Fifth and Sixth Amendment protections - the court concluded that the Constitution imposes substantive constraints on the Federal Government, even when it operates abroad. Relying on INS v. Lopez-Mendoza, 468 U.S. 1032 - where a majority assumed that illegal aliens in the United States have Fourth Amendment rights - the court observed that it would be odd to acknowledge that respondent was entitled to trial-related rights guaranteed by the Fifth and Sixth Amendments, but not to Fourth Amendment protection. Held: The Fourth Amendment does not apply to the search and seizure by United States agents of property owned by a nonresident alien and located in a foreign country. Pp. 264-275. (a) If there were a constitutional violation in this case, it occurred solely in Mexico, since a Fourth Amendment violation is fully accomplished at the time of an unreasonable governmental intrusion whether or not the evidence seized is sought for use in a criminal trial. Thus, the Fourth Amendment functions differently from the Fifth Amendment, whose privilege against self-incrimination is a fundamental trial right of criminal defendants. P. 264. (b) The Fourth Amendment phrase "the people" seems to be a term of art used in select parts of the Constitution and contrasts with the words "person" and "accused" used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. This suggests that "the people" [494 U.S. 259, 260] refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. Pp. 264-266. (c) The Fourth Amendment's drafting history shows that its purpose was to protect the people of the United States against arbitrary action by their own Government and not to restrain the Federal Government's actions against aliens outside United States territory. Nor is there any indication that the Amendment was understood by the Framers' contemporaries to apply to United States activities directed against aliens in foreign territory or in international waters. Pp. 266-268. (d) The view that every constitutional provision applies wherever the Government exercises its power is contrary to this Court's decisions in the Insular Cases, which held that not all constitutional provisions apply to governmental activity even in territories where the United

States has sovereign power. See, e. g., Balzac v. Porto Rico, 258 U.S. 298 . Indeed, the claim that extraterritorial aliens are entitled to rights under the Fifth Amendment - which speaks in the relatively universal term of "person" - has been emphatically rejected. Johnson v. Eisentrager, 339 U.S. 763, 784 . Pp. 268-269. (e) Respondent's reliance on Reid, supra, is misplaced, since that case stands only for the proposition that United States citizens stationed abroad could invoke the protection of the Fifth and Sixth Amendments. Similarly, those cases in which aliens have been determined to enjoy certain constitutional rights establish only that aliens receive such protections when they have come within the territory of, and have developed substantial connections with, this country. See, e. g., Plyler v. Doe, 457 U.S. 202, 212 . Respondent, however, is an alien with no previous significant voluntary connection with the United States, and his legal but involuntary presence here does not indicate any substantial connection with this country. The Court of Appeals' reliance on INS v. Lopez-Mendoza, supra, is also misplaced, since that case assumed that, but did not expressly address the question whether, the Fourth Amendment applies to illegal aliens in the United States. Even assuming such aliens - who are in this country voluntarily and presumably have accepted some societal obligations - would be entitled to Fourth Amendment protections, their situation differs from that of respondent, who had no voluntary connection with this country that might place him among "the people." This Court's decisions expressly according differing protection to aliens than to citizens also undermine respondent's claim that treating aliens differently under the Fourth Amendment violates the equal protection component of the Fifth Amendment. Pp. 269-273. (f) The Court of Appeals' rule would have significant and deleterious consequences for the United States in conducting activities beyond its [494 U.S. 259, 261] borders. The rule would apply not only to law enforcement operations abroad, but also to other foreign operations - such as Armed Forces actions - which might result in "searches and seizures." Under the rule, aliens with no attachment to this country might bring actions for damages to remedy claimed violations of the Fourth Amendment in foreign countries or in international waters, and Members of the Executive and Legislative Branches would be plunged into a sea of uncertainty as to what might be reasonable in the way of searches and seizures conducted abroad. Any restrictions on searches and seizures incident to American action abroad must be imposed by the political branches through diplomatic understanding, treaty, or legislation. Pp.

273-275. 856 F.2d 1214, reversed. 12. ABELITA III v. DORIA (2009) ABELITA vs. DORIA The Case Before the Court is a petition for review[1]assailing the 10 July 2004Decision[2]and 18 October 2004 Order[3]of the Regional Trial Court of Quezon City, Branch 217 (trial court), in Civil Case No. Q-98-33442 for Damages. The Antecedent Facts Judge Felimon Abelita III (petitioner) filed a complaint for Damagesunder Articles 32(4) and (9) of the Civil Code against P/Supt. German B. Doria (P/Supt. Doria) and SPO3 Cesar Ramirez (SPO3 Ramirez). Petitioner alleged in his complaint that on 24 March 1996, at around 12 noon, he andh i s w i f e w e r e o n t h e i r w a y t o t h e i r h o u s e i n B a g u m b a y a n , M a s b a t e , Masbate when P/Supt. Doria and SPO3 Ramirez (respo n d e n t s ) , accompanied by 10 unidentified police officers, requested them to proceedt o t h e P r o v i n c i a l P N P H e a d q u a r t e r s a t C a m p B o n i S e r r a n o , M a s b a t e , Masbate. Petitioner was suspicious of the request and told respondents that he would proceed to the PNP Headquarters after he had brought his wife home. Petitioner alleged that when he parked his car in front of their house, SPO3 Ramirez grabbed him, forcibly took the key to his Totoya Lite Ace van, barged into the vehicle, and conducted a search without awa r r a n t . T h e s e a r c h r e s u l t e d t o t h e s e i z u r e o f a l i c e n s e d s h o t g u n . Petitione r presented the shotguns license to respondents. Thereafter, SPO3 Ramirez continued his search and then produced a .45 caliber pistolw h i c h h e a l l e g e d l y f o u n d i n s i d e t h e v e h i c l e . R e s p o n d e n t s a r r e s t e d petitioner and detained him, without any appropriate charge, at the PNP special detention cell. P/Supt. Doria alleged that his office received a telephone call from arelative of Rosa Sia about a shooting incident in Barangay Nursery. He dispatched a team headed by SPO3 Ramirez to investigate the incident.SPO3 Ramirez later reported that a certain William Sia was wounded while petitioner, who was implicated in the incident, and his wife just left the place of the incident. P/Supt. Doria looked for petitioner and when he found him, he informed him of the incident report. P/Supt. Doria requested petitioner to go with him to the police headquarters as he was reported tobe involved in the incident. Petitioner agreed but suddenly sped up his vehicle and proceeded to his residence. P/Supt. Doria and his companions chased petitioner. Upon reaching petitioners residence, they caught upwith petitioner as he was about to run towards his house. The police officers saw a gun in the front seat of the vehicle beside the drivers seat aspetitioner opened the door. They also saw a shotgun at the back of the drivers seat. The police officers confiscated the firearms and arrested petitioner. P/Supt. Doria alleged that his men also arrested other persons who were identified to be with petitioner during the shooting incident. Petitioner was charged with illegal possession of firearms and frustrated murder. An administrative case was also filed against petitioner before this Court.[4]

The Decision of the Trial Court In its 10 July 2004 Decision, the trial court dismissed petitioners complaint. The trial court found that petitioner was at the scene of the shooting incident in Barangay Nursery. The trial court ruled that the police officers who conducted the search were of the belief, based on reasonable grounds, that petitioner was involved in the incident and that the firearm used in the commission of the offense was in his possession. The trial court ruled that petitioners warrantless arrest and the warrantless seizure of the firearms were valid and legal. The trial court gave more credence to the testimonies of respondents who were presumed to have performed their duties in accordance with law. The trial court rejected petitioners claim of frame-up as weak and insufficient to overthrow the positive testimonies of the policeofficers who conducted the arrest and the incidental search. The trialcourt concluded that petitioners claim for damages under Article 32 of the Civil Code is not warranted under the circumstances. Petitioner filed a motion for reconsideration. In its 18 October 2004 Order, the trial court denied the motion. Hence, the petition before this Court. The Issues The issues in this case are the following: 1. Whether the warrantless arrest and warrantless search and seizure were illegal under Section 5, Rule 113 of t h e 1 9 8 5 R u l e s o n C r i m i n a l Procedure; 2. Whether res pondents are civillyl i a b l e f o r d a m a g e s u n d e r A r t i c l e s 32(4) and (9) of the Civil Code; and 3 . W h e t h e r the findings in t h e a d m i n i s t r a t i v e c a s e a g a i n s t petitioner are concl u s i v e i n t h i s case. The Ruling of this Court The petition has no merit. Application of Section 5, Rule 113 of the1985 Rules on Criminal Procedure Petitioner alleges that his arrest and the search were unlawful under Section 5, Rule 113 of the 1985 Rules on Criminal Procedure. Petitioner alleges that for the warrantless arrest to be lawful, the arresting officer must have personal knowledge of facts that the person to be arrested has committed, is actually committing, or is attempting to commit an offense. Petitioner alleges that the alleged shooting incident was just relayed to the arresting officers, and thus they have no personal knowledge of facts as required by the Rules. We do not agree. Section 5, Rule 113 of the 1985 Rules on Criminal Procedure states: Sec. 5. Arrest without warrant; when lawful. A p e a c e o f f i c e r o r a p r i v a t e p e r s o n m a y , w i t h o u t a warrant, arrest a person:( a ) W h e n , i n his presence, the person t o b e arrested has committed, is actually committing, or isattempting 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 w h e r e h e i s s e r v i n g f i n a l j u d g m e n t o r t e m p o r a r i l y confined while his case is pending, or has escaped while being transferred from one confinement to another. For the warrantless arrest under this Rule to be valid, two requisites must concur: (1) the offender has just committed an offense; and (2) the arresting peace officer or private person has personal knowledge of facts indicating that the person to be arrested has

committed it.[5] Personal knowledge of facts must be based on probable cause, which means an actual belief or reasonable grounds of suspicion.[6]The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e ., supported bycircumstances sufficiently strong in themselves to create the probablecause of guilt of the person to be arrested.[7]A reasonable suspicion, therefore, must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest.[8] Section 5, Rule 113 of the 1985 Rules on Criminal Procedure does not require the arresting officers to personally witness the commission of the offense with their own eyes. In this case, P/Supt. Doria received a report about the alleged shooting incident. SPO3 Ramirez investigated the report and learned from witnesses that petitioner was involved in the incident. They were able to track down petitioner, but when invited to the police headquarters to shed light on the incident, petitioner initially agreed thens p e d u p h i s v e h i c l e , p r o m p t i n g t h e p o l i c e a u t h o r i t i e s t o g i v e c h a s e . Petitioners act of trying to get away, coupled with the incident report which they investigated, is enough to raise a reasonable suspicion on the part of the police authorities as to the existence of probable cause. Plain View Doctrine The seizure of the firearms was justified under the plain view doctrine. Under the plain view doctrine, objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be presented as evidence.[9]The plain view doctrineapplies when the following requisites concur: (1) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (2) the discoveryo f t h e e v i d e n c e i n p l a i n v i e w i s i n a d v e r t e n t ; a n d ( 3 ) i t i s i m m e d i a t e l y apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure.[10] In this case, the police authorities were in the area because that wasw h e r e t h e y c a u g h t u p w i t h p e t i t i o n e r a f t e r t h e c h a s e . T h e y s a w t h e f irearms inside the vehicle when petitioner opened the door. Since a shooting incident just took place and it was reported that petitioner was involved in the incident, it was apparent to the police officers that the firearms may be evidence of a crime. Hence, they were justified in seizing the firearms. WHEREFORE, we DENY the petition. We AFFIRM the 10 July 2004Decision and 18 October 2004 Order of the Regional Trial Court of Quezon City, Branch 217, in Civil Case No. Q-9833442. SO ORDERED. 14. LUCAS v. LUCAS 2011 JESSE U. LUCAS v. JESUS S. LUCAS G.R. No. 190710, June 6, 2011, SECOND DIVISION (Nachura, J.)

Although a paternity action is civil, not criminal, the constitutional prohibition against unreasonable searches and seizures is still applicable, and a proper showing of sufficient justification under the particular factual circumstances of the case must be made before a court may order a compulsory blood test. Jesse U. Lucas (Jesse), filed a Petition to Establish Filiation with a Motion for the Submission of Parties to DNA Testing before the Regional Trial Court (RTC). Jesse narrated his mothers account of her history with Jesus S. Lucas (Jesus) and attached several copies of his personal documents. Though Jesus was not summoned and was not served a copy of the petition, he nevertheless learned of it and obtained for himself a copy. He then filed a Special Appearance and Comment manifesting among others that the petition was adversarial in nature and therefore summons should be served on him as respondent. Unbeknownst to Jesus on the day before he filed his Comment, Jesse filed a Very Urgent Motion to Try and Hear the Case which the RTC found to be sufficient in form and hence set the case for hearing. After learning of the RTCs order, Jesus filed a Motion for Reconsideration arguing that DNA testing cannot be had on the basis of a mere allegation pointing to him as Jesses father. Acting on Jesus Motion for Reconsideration, the RTC dismissed the case and held that Jesse failed to establish compliance with the four procedural aspects for a paternity action enumerated in the case of Herrera v. Alba. This prompted Jesse to file a Motion for Reconsideration of his own which the RTC granted. A new hearing was scheduled where the RTC held that ruling on the grounds relied upon by Jesse for filing the instant petition is premature considering that a fullblown trial has not yet taken place. Jesus filed a Motion for Reconsideration which was denied by the RTC. He then filed a petition for certiorari with the Court of Appeals (CA). The CA ruled in favor of Jesus, it noted that Jesse failed to show that the four significant aspects of a traditional paternity action had been met and held that DNA testing should not be allowed when the petitioner has failed to establish a prima facie case. ISSUE: Whether or not a prima facie showing is necessary before a court can issue a DNA testing order. HELD: Petition GRANTED. Misapplication of Herrera v. Alba by the Regional Trial Court and the Court of Appeals. The statement in Herrera v. Alba that there are four significant procedural aspects in a traditional paternity case which parties have to face has been widely misunderstood and misapplied in this case. A party is confronted by these so-called procedural aspects

during trial, when the parties have presented their respective evidence. They are matters of evidence that cannot be determined at this initial stage of the proceedings, when only the petition to establish filiation has been filed. The CAs observation that petitioner failed to establish a prima facie casethe first procedural aspect in a paternity caseis therefore misplaced. A prima facie case is built by a partys evidence and not by mere allegations in the initiatory pleading. Section 4 of the Rule on DNA evidence. The Rule on DNA Evidence was enacted to guide the Bench and the Bar for the introduction and use of DNA evidence in the judicial system. It provides the prescribed parameters on the requisite elements for reliability and validity (i.e., the proper procedures, protocols, necessary laboratory reports, etc.), the possible sources of error, the available objections to the admission of DNA test results as evidence as well as the probative value of DNA evidence. It seeks to ensure that the evidence gathered, using various methods of DNA analysis, is utilized effectively and properly, [and] shall not be misused and/or abused and, more importantly, shall continue to ensure that DNA analysis serves justice and protects, rather than prejudice the public. Not surprisingly, Section 4 of the Rule on DNA Evidence merely provides for conditions that are aimed to safeguard the accuracy and integrity of the DNA testing. Section 4 states: The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice to the parties upon a showing of the following: (a) A biological sample exists that is relevant to the case;(b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons; (c) The DNA testing uses a scientifically valid technique; (d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and (e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing. This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any party, including law enforcement agencies, before a suit or proceeding is commenced. This does not mean, however, that a DNA testing order will be issued as a matter of right if, during the hearing, the said conditions are established. Court order for blood testing equivalent to search under the Constitution. In some states, to warrant the issuance of the DNA testing order, there must be a show cause hearing wherein the applicant must first present sufficient evidence to establish a prima facie case or a reasonable possibility of paternity or good cause for the holding of the test. In these states, a court order for blood testing is considered a search, which, under their Constitutions (as in ours), must be preceded by a finding of probable cause in order to be valid. Hence, the requirement of a prima facie case, or reasonable possibility, was imposed in civil actions as a counterpart of a finding of probable cause. The Supreme Court of Louisiana eloquently explained; Although a paternity action is civil, not criminal, the constitutional prohibition against unreasonable searches and

seizures is still applicable, and a proper showing of sufficient justification under the particular factual circumstances of the case must be made before a court may order a compulsory blood test. Courts in various jurisdictions have differed regarding the kind of procedures which are required, but those jurisdictions have almost universally found that a preliminary showing must be made before a court can constitutionally order compulsory blood testing in paternity cases. We agree, and find that, as a preliminary matter, before the court may issue an order for compulsory blood testing, the moving party must show that there is a reasonable possibility of paternity. As explained hereafter, in cases in which paternity is contested and a party to the action refuses to voluntarily undergo a blood test, a show cause hearing must be held in which the court can determine whether there is sufficient evidence to establish a prima facie case which warrants issuance of a court order for blood testing. The same condition precedent should be applied in our jurisdiction to protect the putative father from mere harassment suits. Thus, during the hearing on the motion for DNA testing, the petitioner must present prima facie evidence or establish a reasonable possibility of paternity.