G.R. No. 125754 December 22, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

ZENAIDA BOLASA Y NAKOBOAN and ROBERTO DELOS REYES, accused-appellants. BELLOSILLO, J.: An anonymous caller tipped off PO3 Dante Salonga and PO3 Albert Carizon in the early evening of 11 September 1995 that a man and a woman were repacking prohibited drugs at a certain house in Sta. Brigida St., Karuhatan, Valenzuela, Metro Manila. PO3 Salonga and PO3 Carizon together with SPO1 Fernando Arenas immediately proceeded to the house of the suspects and parked their car some three hundred (300) meters away. They walked towards their quarry's lair accompanied this time by their unnamed informer. When they reached the house they "peeped (inside) through a small window and . . . saw one man and a woman repacking suspected marijuana." 1 They entered the house and introduced themselves as police officers to the occupants and thereupon confiscated the tea bags and some drug paraphernalia. They arrested the two (2) who turned out to be the accused Zenaida Bolasa y Nakoboan and Roberto delos Reyes. Subsequent examination of the tea bags by NBI Forensic Chemist Rubie Calalo confirmed the suspicion that the tea bags contained marijuana. Zenaida Bolasa and Roberto delos Reyes were thus charged with violation of Sec. 8, Art. II, of RA 6425 otherwise known as The Dangerous Drugs Act of 1972. Both however denied on the witness stand ownership over the confiscated tea bags and drug implements. According to Roberto delos Reyes, he and his wife were merely tenants in the house of Zenaida Bolasa and at the time he was arrested he had just arrived from work. Upon learning that Zenaida was repacking marijuana inside their room, he immediately ordered her to leave. Unfortunately however it was at that precise moment that police authorities entered and announced their presence. He and Zenaida were then brought to the Valenzuela Police Station for questioning and subsequently detained.

On the part of Zenaida Bolasa, she narrated that at 7:30 in the evening of 11 September 1995 she was on her way to 9th Avenue, Caloocan City, where she was working as a waitress. As she was about to leave the house she met a certain "Rico" and conversed with him for some time. She denied knowing PO3 Carizon and the fact that the latter saw her repacking marijuana inside her house. The trial court upon finding the version of the prosecution to be more plausible convicted both accused Zenaida Bolasa and Roberto delos Reyes of the crime charged and sentenced each of them not only to reclusion perpetua but also to pay a fine of P500,000.00. 2 Both accused appealed, although separately, each one represented by a separate counsel. Maintaining his innocence in this appeal, accused-appellant Roberto delos Reyes insists he had just arrived from work and had, in fact, just entered his room when he was arrested. Assuming he was indeed repacking marijuana when the police officers arrived, he claims it would have been inconceivable for them to know what he was doing inside his room considering the height of his window. Significantly, the police officers had to lean first on the window in order to observe the activities inside the room. Accused-appellant Zenaida Bolasa meanwhile asserts that the search in her residence was likewise illegal as her arrest preceding it was illegal. Consequently, the marijuana seized from her could not be properly used as evidence against her. She insists that the trial court should not have given credence to the testimony of PO3 Albert Carizon as the same was hearsay. According to her and her co-accused delos Reyes, PO3 Carizon was not among the arresting officers. As such, PO3 Carizon had no personal knowledge regarding the conduct of the arrest and search thus making his testimony hearsay. Since the prosecution did not present the two (2) arresting officers the version of the prosecution cannot stand on its own. Bolasa likewise impugns the identity of the items confiscated from her person vis-a-vis those which were submitted for laboratory examination

and charges that the failure of the prosecution to satisfactorily establish the chain of custody over the specimen is damaging to its case. We sustain the appeal. This case clearly illustrates how constitutional guarantees against illegal arrests and seizures can be violated by overzealous police officers in the arrest of suspected drug offenders. Thus, after a meticulous evaluation of the evidence at hand, this Court finds itself with no other recourse but to strike down the process adopted by the prosecution and acquit accused-appellants for insufficiency of evidence and reasonable doubt. Sec. 2, Art. III, of the 1987 Constitution provides The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The State cannot in a cavalier fashion intrude into the persons of its citizens as well as into their houses, papers and effects. The constitutional provision sheathes the private individual with an impenetrable armor against unreasonable searches and seizures. It protects the privacy and sanctity of the person himself against unlawful arrests and other forms of restraint, 3 and prevents him from being irreversibly "cut off from that domestic security which renders the lives of the most unhappy in some measure agreeable." 4 For sure, this constitutional guarantee is not a blanket prohibition against all searches and seizures as it obviously operates only against searches and seizures that are "unreasonable." 5 Thus, arrests and seizures in the following instances are not deemed "unreasonable" and are thus allowed even in the absence of a warrant

1. Warrantless search incidental to a lawful arrest (Sec. 12, Rule 126 of the Rules of Court and prevailing jurisprudence); 2. Search of evidence in "plain view." The elements are: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who have the right to be where they are; (c) the evidence must be immediately apparent; and, (d) "plain view" justified mere seizure of evidence without further search. 3. Search of a moving vehicle. Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;. 4. Consented warrantless search; 5. Customs search; 6. Stop and Frisk; and 7. Exigent and emergency circumstances. 6 An arrest is lawful even in the absence of a warrant: (a) when the person to be arrested has committed, is actually committing, or is about to commit an offense in his presence; (b) when an offense has in fact been committed and he has reasonable ground to believe that the person to be arrested has committed it; and, (c) when the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. 7 A person charged with an offense may be searched for dangerous

weapons or anything which may be used as proof of the commission of the offense. 8 The manner by which accused-appellants were apprehended does not fall under any of the above-enumerated categories. Perforce, their arrest is illegal. First, the arresting officers had no personal knowledge that at the time of their arrest, accused-appellants had just committed, were committing, or were about to commit a crime. Second, the arresting officers had no personal knowledge that a crime was committed nor did they have any reasonable ground to believe that accused-appellants committed it. Third, accused-appellants were not prisoners who have escaped from a penal establishment. Neither can it be said that the objects were seized in plain view. First, there was no valid intrusion. As already discussed, accused-appellants were illegally arrested. Second, the evidence, i.e., the tea bags later on found to contain marijuana, was not inadvertently discovered. The police officers intentionally peeped first through the window before they saw and ascertained the activities of accused-appellants inside the room. In like manner, the search cannot be categorized as a search of a moving vehicle, a consented warrantless search, a customs search, or a stop and frisk; it cannot even fall under exigent and emergency circumstances, for the evidence at hand is bereft of any such showing. On the contrary, it indicates that the apprehending officers should have conducted first a surveillance considering that the identities and address of the suspected culprits were already ascertained. After conducting the surveillance and determining the existence of probable cause for arresting accused-appellants, they should have secured a search warrant prior to effecting a valid arrest and seizure. The arrest being illegal ab initio, the accompanying search was likewise illegal. Every evidence thus obtained during the illegal search cannot be used against accused-appellants; 9 hence, their acquittal must follow in faithful obeisance to the fundamental law. WHEREFORE, the 12 July 1996 Decision of the Regional Trial Court finding accused-appellants Zenaida Bolasa y Nakoboan and Roberto delos Reyes guilty of violating Sec. 8, Art. II, of RA 6425 is REVERSED

and SET ASIDE for insufficiency of evidence and on reasonable doubt; consequently, both are ACQUITTED and ordered RELEASED immediately from confinement unless held for another lawful cause. Their Jailers the Correctional Institution for Women, Mandaluyong City, for Zenaida Bolasa y Nakoboan, and the Bureau of Corrections, Muntinlupa City, for Roberto delos Reyes are DIRECTED to implement this Decision immediately and to report to this Court within five (5) days from receipt hereof their compliance herewith WITHOUT DELAY. SO ORDERED. Mendoza, Quisumbing, Buena and De Leon, Jr., JJ., concur. Xxxxxxx

G.R. No. 113271 October 16, 1997 WATEROUS DRUG CORPORATION and MS. EMMA CO, petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION and ANTONIA MELODIA CATOLICO, respondents.

DAVIDE, JR., J.: Nor is he a true Servant [who] buys dear to share in the Profit with the Seller. 1 This petition for certiorari under Rule 65 of the Rules of Court seeks to declare private respondent Antonia Melodia Catolico (hereafter Catolico) not a "true Servant," thereby assailing the 30 September 1993 decision 2 and December 1993 Resolution 3 of the National Labor Relations

Commission (NLRC) in NLRC-NCR CA No. 005160-93, which sustained the reinstatement and monetary awards in favor of private respondent 4 and denied the petitioners' motion for reconsideration. 5 The facts are as follows: Catolico was hired as a pharmacist by petitioner Waterous Drug Corporation (hereafter WATEROUS) on 15 August 1988. On 31 July 1989, Catolico received a memorandum 6 from WATEROUS Vice President-General Manager Emma R. Co warning her not to dispense medicine to employees chargeable to the latter's accounts because the same was a prohibited practice. On the same date, Co issued another memorandum 7 to Catolico warning her not to negotiate with suppliers of medicine without consulting the Purchasing Department, as this would impair the company's control of purchases and, besides she was not authorized to deal directly with the suppliers. As regards the first memorandum, Catolico did not deny her responsibility but explained that her act was "due to negligence," since fellow employee Irene Soliven "obtained the medicines in bad faith and through misrepresentation when she claimed that she was given a charge slip by the Admitting Dept." Catolico then asked the company to look into the fraudulent activities of Soliven. 8 In a memorandum 9 dated 21 November 1989, WATEROUS Supervisor Luzviminda E. Bautro warned Catolico against the "rush delivery of medicines without the proper documents." On 29 January 1990, WATEROUS Control Clerk Eugenio Valdez informed Co that he noticed an irregularity involving Catolico and Yung Shin Pharmaceuticals, Inc. (hereafter YSP), which he described as follows: . . . A case in point is medicine purchased under our Purchase Order (P.O.) No. 19045 with YSP Sales Invoice No. 266 representing purchase of ten (10) bottles of Voren tablets at P384.00 per unit. Previews P.O.s issued to YSP, Inc. showed that

the price per bottle is P320.00 while P.O. No. 19045 is priced at P384.00 or an over price of P64.00 per bottle (or total of P640.00). WDRC paid the amount of P3,840.00 thru MBTC Check No. 222832 dated December 15, 1988. Verification was made to YSP, Inc. to determine the discrepancy and it was found that the cost per bottle was indeed overpriced. YSP, Inc. Accounting Department (Ms. Estelita Reyes) confirmed that the difference represents refund of jack-up price of ten bottles of Voren tablets per sales invoice no. 266 as per their check voucher no. 629552 (shown to the undersigned), which was paid to Ms. Catolico through China Bank check no. 892068 dated November 9, 1989 . . .. The undersigned talked to Ms. Catolico regarding the check but she denied having received it and that she is unaware of the overprice. However, upon conversation with Ms. Saldana, EDRC Espana Pharmacy Clerk, she confirmed that the check amounting to P640.00 was actually received by Ms. Catolico. As a matter of fact, Ms. Catolico even asked Ms. Saldana if she opened the envelope containing the check but Ms. Saldana answered her "talagang ganyan, bukas." It appears that the amount in question (P640.00) had been pocketed by Ms. Catolico. 10 Forthwith, in her memorandum 11 dated 37 January 1990, Co asked Catolico to explain, within twenty-four hours, her side of the reported irregularity. Catolico asked for additional time to give her explanation, 12 and she was granted a 48-hour extension from 1 to 3 February 1990. However, on 2 February 1990, she was informed that effective 6 February 1990 to 7 March 1990, she would be placed on preventive suspension to protect the interests of the company. 13 In a letter dated 2 February 1990, Catolico requested access to the file containing Sales Invoice No. 266 for her to be able to make a satisfactory explanation. In said letter she protested Saldaa's invasion of her privacy when Saldaa opened an envelope addressed to Catolico. 14 In a letter 15 to Co dated 10 February 1990, Catolico, through her counsel, explained that the check she received from YSP was a Christmas gift and

not a "refund of overprice." She also averred that the preventive suspension was ill-motivated, as it sprang from an earlier incident between her and Co's secretary, Irene Soliven. On 5 March 1990, WATEROUS Supervisor Luzviminda Bautro, issued a memorandum 16 notifying Catolico of her termination; thus: We received your letter of explanation and your lawyer's letter dated Feb. 2, 1990 and Feb. 10, 1990 respectively regarding our imposition of preventive suspension on you for acts of dishonesty. However, said letters failed to rebut the evidences [sic] in our possession which clearly shows that as a Pharmacist stationed at Espana Branch, you actually made Purchase Orders at YSP Phils., Inc. for 10 bottles of Voren tablets at P384.00/bottle with previous price of P320.00/bottle only. A check which you received in the amount of P640.00 actually represents the refund of over price of said medicines and this was confirmed by Ms. Estelita Reyes, YSP Phils., Inc. Accounting Department. Your actuation constitutes an act of dishonesty detrimental to the interest of the company. Accordingly, you are hereby terminated effective March 8, 1990. On 5 May 1990, Catolico filed before the Office of the Labor Arbiter a complaint for unfair labor practice, illegal dismissal, and illegal suspension.
17

30 days work." Arbiter Lopez computed the award in favor of Catolico as follows: 30 days Preventive Suspension P2,000.00 Backwages 26,858.50 1/12 of P26,858.50 2,238.21 Separation pay (3 years) 4,305.15 TOTAL AWARD P35,401.86 Petitioners seasonably appealed from the decision and urged the NLRC to set it aside because the Labor Arbiter erred in finding that Catolico was denied due process and that there was no just cause to terminate her services. In its decision 19 of 30 September 1993, the NLRC affirmed the findings of the Labor Arbiter on the ground that petitioners were not able to prove a just cause for Catolico's dismissal from her employment. It found that petitioner's evidence consisted only of the check of P640.00 drawn by YSP in favor of complainant, which her co-employee saw when the latter opened the envelope. But, it declared that the check was inadmissible in evidence pursuant to Sections 2 and 3(1 and 2) of Article III of the Constitution. 20 It concluded: With the smoking gun evidence of respondents being rendered inadmissible, by virtue of the constitutional right invoked by complainants, respondents' case falls apart as it is bereft of evidence which cannot be used as a legal basis for complainant's dismissal. The NLRC then dismissed the appeal for lack of merit, but modified the dispositive portion of the appealed decision by deleting the award for illegal suspension as the same was already included in the computation of the aggregate of the awards in the amount of P35,401.86.

In his decision 18 of 10 May 1993, Labor Arbiter Alex Arcadio Lopez found no proof of unfair labor practice against petitioners. Nevertheless, he decided in favor of Catolico because petitioners failed to "prove what [they] alleged as complainant's dishonesty," and to show that any investigation was conducted. Hence, the dismissal was without just cause and due process. He thus declared the dismissal and suspension illegal but disallowed reinstatement, as it would not be to the best interest of the parties. Accordingly, he awarded separation pay to Catolico computed at one-half month's pay for every year of service; back wages for one year; and the additional sum of P2,000.00 for illegal suspension "representing

Their motion for reconsideration having been denied, petitioners filed this special civil action for certiorari, which is anchored on the following grounds: I. Public respondent committed grave abuse of discretion in its findings of facts. II. Due process was duly accorded to private respondent. III. Public respondent gravely erred in applying Section 3, Article III of the 1987 Constitution. As to the first and second grounds, petitioners insist that Catolico had been receiving "commissions" from YSP, or probably from other suppliers, and that the check issued to her on 9 November 1989 was not the first or the last. They also maintained that Catolico occupied a confidential position and that Catolico's receipt of YSP's check, aggravated by her "propensity to violate company rules," constituted breach of confidence. And contrary to the findings of NLRC, Catolico was given ample opportunity to explain her side of the controversy. Anent the third ground, petitioners submit that, in light of the decision in the People v. Marti, 21 the constitutional protection against unreasonable searches and seizures refers to the immunity of one's person from interference by government and cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government. In its Manifestation in Lieu of Comment, the Office of the Solicitor General (OSG) disagreed with the NLRC's decision, as it was of the persuasion that (a) the conclusions reached by public respondent are inconsistent with its findings of fact; and (b) the incident involving the opening of envelope addressed to private respondent does not warrant the application of the constitutional provisions. It observed that Catolico was given "several opportunities" to explain her side of the check controversy, and concluded that the opportunities granted her and her subsequent explanation "satisfy

the requirements of just cause and due process." The OSG was also convinced that Catolico's dismissal was based on just cause and that Catolico's admission of the existence of the check, as well as her "lame excuse" that it was a Christmas gift from YSP, constituted substantial evidence of dishonesty. Finally, the OSG echoed petitioners' argument that there was no violation of the right of privacy of communication in this case, 22 adding that petitioner WATEROUS was justified in opening an envelope from one of its regular suppliers as it could assume that the letter was a business communication in which it had an interest. In its Comment which we required to be filed in view of the adverse stand of the OSG, the NLRC contends that petitioners miserably failed to prove their claim that it committed grave abuse of discretion in its findings of fact. It then prays that we dismiss this petition. In her Comment, Catolico asserts that petitioners' evidence is too "flimsy" to justify her dismissal. The check in issue was given to her, and she had no duty to turn it over to her employer. Company rules do not prohibit an employee from accepting gifts from clients, and there is no indication in the contentious check that it was meant as a refund for overpriced medicines. Besides, the check was discovered in violation of the constitutional provision on the right to privacy and communication; hence, as correctly held by the NLRC, it was inadmissible in evidence. Catolico likewise disputes petitioners' claim that the audit report and her initial response that she never received a check were sufficient to justify her dismissal. When she denied having received a check from YSP, she meant that she did not receive any refund of overprice, consistent with her position that what she received was a token gift. All that can be gathered from the audit report is that there was apparently an overcharge, with no basis to conclude that Catolico pocketed the amount in collusion with YSP. She thus concluded that her dismissal was based on a mere suspicion. Finally, Catolico insists that she could not have breached the trust and confidence of WATEROUS because, being merely a pharmacist, she did not handle "confidential information or sensitive properties." She was doing the task of a saleslady: selling drugs and making requisitions when supplies were low.

A thorough review of the record leads us to no other conclusion than that, except as to the third ground, the instant petition must fail. Concededly, Catolico was denied due process. Procedural due process requires that an employee be apprised of the charge against him, given reasonable time to answer the charge, allowed ample opportunity to be heard and defend himself, and assisted by a representative if the employee so desires. 23 Ample opportunity connotes every kind of assistance that management must accord the employee to enable him to prepare adequately for his defense, including legal representation. 24 In the case at bar, although Catolico was given an opportunity to explain her side, she was dismissed from the service in the memorandum of 5 March 1990 issued by her Supervisor after receipt of her letter and that of her counsel. No hearing was ever conducted after the issues were joined through said letters. The Supervisor's memorandum spoke of "evidences [sic] in [WATEROUS] possession," which were not, however, submitted. What the "evidences" [sic] other than the sales invoice and the check were, only the Supervisor knew. Catolico was also unjustly dismissed. It is settled that the burden is on the employer to prove just and valid cause for dismissing an employee, and its failure to discharge that burden would result in a finding that the dismissal is unjustified. 25 Here, WATEROUS proved unequal to the task. It is evident from the Supervisor's memorandum that Catolico was dismissed because of an alleged anomalous transaction with YSP. Unfortunately for petitioners, their evidence does not establish that there was an overcharge. Control Clerk Eugenio C. Valdez, who claims to have discovered Catolico's inappropriate transaction, stated in his affidavit: 26 4. My findings revealed that on or before the month of July 31, 1989, Ms. Catolico in violation of the [company] procedure, made an under the table deal with YSP Phils. to supply WDRC needed medicines like Voren tablets at a jack-up price of P384.00 per bottle of 50 mg. which has a previous price of only P320.00;

5. I verified the matter to YSP Phils. to determine the discrepancy and I found out that the cost per bottle was indeed overpriced. The Accounting Department of YSP Phils. through Ms. Estelita Reyes confirmed that there was really an overprice and she said that the difference was refunded through their check voucher no. 629552 which was shown to me and the payee is Melodia Catolico, through a China Bank Check No. 892068 dated November 9, 1989. It clearly appears then that Catolico's dismissal was based on hearsay information. Estelita Reyes never testified nor executed an affidavit relative to this case; thus, we have to reject the statements attributed to her by Valdez. Hearsay evidence carries no probative value. 27 Besides, it was never shown that petitioners paid for the Voren tablets. While Valdez informed Co, through the former's memorandum 28 of 29 January 1990, that WATEROUS paid YSP P3,840.00 "thru MBTC Check No. 222832," the said check was never presented in evidence, nor was any receipt from YSP offered by petitioners. Moreover, the two purchase orders for Voren tablets presented by petitioners do not indicate an overcharge. The purchase order dated 16 August 1989 29 stated that the Voren tablets cost P320.00 per box, while the purchase order dated 5 October 1989 30 priced the Voren tablets at P384.00 per bottle. The difference in price may then be attributed to the different packaging used in each purchase order. Assuming that there was an overcharge, the two purchase orders for the Voren tablets were recommended by Director-MMG Mario R. Panuncio, verified by AVP-MNG Noli M. Lopez and approved by Vice PresidentGeneral Manager Emma R. Co. The purchase orders were silent as to Catolico's participation in the purchase. If the price increase was objectionable to petitioners, they or their officers should have disapproved the transaction. Consequently, petitioners had no one to blame for their predicament but themselves. This set of facts emphasizes the exceedingly incredible situation proposed by petitioners. Despite the memorandum warning Catolico not to negotiate with suppliers of medicine, there was no proof that she ever transacted, or that she had the opportunity to transact,

with the said suppliers. Again, as the purchase orders indicate, Catolico was not at all involved in the sale of the Voren tablets. There was no occasion for Catolico to initiate, much less benefit from, what Valdez called an "under the table deal" with YSP. Catolico's dismissal then was obviously grounded on mere suspicion, which in no case can justify an employee's dismissal. Suspicion is not among the valid causes provided by the Labor Code for the termination of employment; 31 and even the dismissal of an employee for loss of trust and confidence must rest on substantial grounds and not on the employer's arbitrariness, whims, caprices, or suspicion. 32 Besides, Catolico was not shown to be a managerial employee, to which class of employees the term "trust and confidence" is restricted. 33 As regards the constitutional violation upon which the NLRC anchored its decision, we find no reason to revise the doctrine laid down in People vs. Marti 34 that the Bill of Rights does not protect citizens from unreasonable searches and seizures perpetrated by private individuals. It is not true, as counsel for Catolico claims, that the citizens have no recourse against such assaults. On the contrary, and as said counsel admits, such an invasion gives rise to both criminal and civil liabilities. Finally, since it has been determined by the Labor Arbiter that Catolico's reinstatement would not be to the best interest of the parties, he correctly awarded separation pay to Catolico. Separation pay in lieu of reinstatement is computed at one month's salary for every year of service. 35 In this case, however, Labor Arbiter Lopez computed the separation pay at one-half month's salary for every year of service. Catolico did not oppose or raise an objection. As such, we will uphold the award of separation pay as fixed by the Labor Arbiter. WHEREFORE, the instant petition is hereby DISMISSED and the challenged decision and resolution of the National Labor Relations Commission dated 30 September 1993 and 2 December 1993, respectively, in NLRC-NCR CA No. 005160-93 are AFFIRMED, except as to its reason for upholding the Labor Arbiter's decision, viz., that the evidence against private respondent was inadmissible for having been obtained in violation of her constitutional rights of privacy of

communication and against unreasonable searches and seizures which is hereby set aside. Costs against petitioners. SO ORDERED. Bellosillo, Vitug, Kapunan and Hermosisima, Jr., JJ., concur. Xxxxxxxxx G.R. No. 143944 July 11, 2002

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BASHER BONGCARAWAN y MACARAMBON, accused-appellant. PUNO, J.: This is an appeal from the Decision1 dated December 27, 1999 of the Regional Trial Court of Iligan City, Branch 06, in Criminal Case No. 067542, finding accused Basher Bongcarawan y Macarambon guilty beyond reasonable doubt of violation of Section 16, Article III of Republic Act No. 64252 as amended, and sentencing him to suffer the penalty of reclusion perpetua, and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) without subsidiary imprisonment in case of insolvency.1wphi1.nt Accused Basher Bongcarawan y Macarambon was charged in an Information which reads, thus: "That on or about March 13, 1999, in the City of Iligan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, without authority of law, did then and there wilfully, unlawfully and feloniously have in his possession, custody and control eight (8) packs of Methamphetamine Hydrochloride, a

regulated drug commonly known as Shabu, weighing approximately 400 grams, without the corresponding license or prescription. Contrary to and in violation of Section 16, Article III of RA 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended by RA 7659."3 During the arraignment, the accused pleaded not guilty. Trial ensued. Evidence for the prosecution shows that on March 11, 1999, an interisland passenger ship, M/V Super Ferry 5, sailed from Manila to Iligan City. At about 3:00 a.m. on March 13, 1999, the vessel was about to dock at the port of Iligan City when its security officer, Mark Diesmo, received a complaint from passenger Lorena Canoy about her missing jewelry. Canoy suspected one of her co-passengers at cabin no. 106 as the culprit. Diesmo and four (4) other members of the vessel security force accompanied Canoy to search for the suspect whom they later found at the economy section.4 The suspect was identified as the accused, Basher Bongcarawan. The accused was informed of the complaint and was invited to go back to cabin no. 106. With his consent, he was bodily searched, but no jewelry was found. He was then escorted by two (2) security agents back to the economy section to get his baggage. The accused took a Samsonite suitcase and brought this back to the cabin. When requested by the security, the accused opened the suitcase, revealing a brown bag and small plastic packs containing white crystalline substance. Suspecting the substance to be "shabu," the security personnel immediately reported the matter to the ship captain and took pictures of the accused beside the suitcase and its contents. They also called the Philippine Coast Guard for assistance.5 At about 6:00 a.m., Lt. Robert Patrimonio, YN Aurelio Estoque, CD2 Phoudinie Lantao and RM3 Merchardo De Guzman of the Philippine Coast Guard arrived and took custody of the accused and the seized items--the Samsonite suitcase, a brown bag6 and eight (8) small plastic packs of white crystalline substance.7 When asked about the contraband articles, the accused explained that he was just requested by a certain Alican "Alex" Macapudi to bring the suitcase to the latter's brother in Iligan City.8 The accused and the seized items were later turned over by the coast guard to the

Presidential Anti-Organized Crime Task Force (PAOCTF). Chief Inspector Graciano Mijares and his men brought the accused to the PAOCTF Headquarters,9 while the packs of white crystalline substance were sent to the NBI Regional Office in Cagayan de Oro City for laboratory examination. NBI Forensic Chemist Nicanor Cruz later confirmed the substance to be methamphetamine hydrochloride, commonly known as "shabu," weighing 399.3266 grams.10 The accused testified and proffered his own version. On March 11, 1999, at about 10:00 p.m., he was in Quiapo, Manila where he met Alican "Alex" Macapudi, a neighbor who has a store in Marawi City. He was requested by Macapudi to bring a Samsonite suitcase containing sunglasses and watches to Iligan City, and to give it to Macapudi's brother at the Iligan port. He boarded the M/V Super Ferry 5 on the same night, carrying a big luggage full of clothes, a small luggage or "maleta" containing the sunglasses and brushes he bought from Manila, and the Samsonite suitcase of Macapudi.11 He stayed at cabin no. 106. At about 4:00 a.m of March 13, 1999, as the vessel was about to dock at the Iligan port, he took his baggage and positioned himself at the economy section to be able to disembark ahead of the other passengers. There, he met a friend, Ansari Ambor. While they were conversing, five (5) members of the vessel security force and a woman whom he recognized as his co-passenger at cabin no. 106 came and told him that he was suspected of stealing jewelry. He voluntarily went with the group back to cabin no. 106 where he was frisked. Subsequently, he was asked to get his baggage, so he went back to the economy section and took the big luggage and Macapudi's Samsonite suitcase. He left the small "maleta" containing sunglasses and brushes for fear that they would be confiscated by the security personnel. When requested, he voluntarily opened the big luggage, but refused to do the same to the Samsonite suitcase which he claimed was not his and had a secret combination lock. The security personnel forcibly opened the suitcase and found packs of white crystalline substance inside which they suspected to be "shabu." They took pictures of him with the merchandise, and asked him to sign a turn over receipt which was later given to the Philippine Coast Guard, then to the PAOCTF.12 On December 27, 1999, the trial court rendered judgment, the dispositive portion of which reads:

"WHEREFORE, the court finds the accused Basher Bongcarawan y Macarambon GUILTY beyond reasonable doubt as principal of the offense of violation of Section 16, Art. III, R.A. No. 6425 as amended by R.A. No. 7659 and hereby imposes upon him the penalty of RECLUSION PERPETUA and a fine of FIVE HUNDRED THOUSAND (P500,000.00) PESOS, without subsidiary imprisonment in case of insolvency. Having been under preventive imprisonment since March 13, 1999 until the present, the period of such preventive detention shall be credited in full in favor of the accused in the service of his sentence. The 399.3266 grams of methamphetamine hydrochloride or shabu is hereby ordered delivered to the National Bureau of Investigation for proper disposition. SO ORDERED."13 Hence, this appeal where the accused raises the following assignment of errors: "I. THE COURT A QUO ERRED IN SO HOLDING THAT THE DRUG CONFISCATED IS ADMISSIBLE IN EVIDENCE AGAINST THE ACCUSED/APPELLANT. II. THE COURT A QUO ERRED IN SO HOLDING THAT THE APPELLANT OWNED THE CONFISCATED EVIDENCE AND THEREFORE ADMISSIBLE IN EVIDENCE AGAINST HIM."14 On the first assignment of error, the accused-appellant contends that the Samsonite suitcase containing the methamphetamine hydrochloride or "shabu" was forcibly opened and searched without his consent, and

hence, in violation of his constitutional right against unreasonable search and seizure. Any evidence acquired pursuant to such unlawful search and seizure, he claims, is inadmissible in evidence against him. He also contends that People v. Marti15 is not applicable in this case because a vessel security personnel is deemed to perform the duties of a policeman. The contentions are devoid of merit. The right against unreasonable search and seizure is a fundamental right protected by the Constitution.16 Evidence acquired in violation of this right shall be inadmissible for any purpose in any proceeding. 17 Whenever this right is challenged, an individual may choose between invoking the constitutional protection or waiving his right by giving consent to the search and seizure. It should be stressed, however, that protection is against transgression committed by the government or its agent. As held by this Court in the case of People v. Marti,18 "[i]n the absence of governmental interference, liberties guaranteed by the Constitution cannot be invoked against the State."19 The constitutional proscription against unlawful searches and seizures applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed.20 In the case before us, the baggage of the accused-appellant was searched by the vessel security personnel. It was only after they found "shabu" inside the suitcase that they called the Philippine Coast Guard for assistance. The search and seizure of the suitcase and the contraband items was therefore carried out without government intervention, and hence, the constitutional protection against unreasonable search and seizure does not apply. There is no merit in the contention of the accused-appellant that the search and seizure performed by the vessel security personnel should be considered as one conducted by the police authorities for like the latter, the former are armed and tasked to maintain peace and order. The vessel security officer in the case at bar is a private employee and does not discharge any governmental function. In contrast, police officers are agents of the state tasked with the sovereign function of enforcement of

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the law. Historically and until now, it is against them and other agents of the state that the protection against unreasonable searches and seizures may be invoked. On the second assignment of error, the accused-appellant contends that he is not the owner of the Samsonite suitcase and he had no knowledge that the same contained "shabu." He submits that without knowledge or intent to possess the dangerous drug, he cannot be convicted of the crime charged.21 We are not persuaded. In a prosecution for illegal possession of dangerous drugs, the following facts must be proven beyond reasonable doubt, viz: (1) that the accused is in possession of the object identified as a prohibited or a regulated drug; (2) that such possession is not authorized by law; and (3) that the accused freely and consciously possessed the said drug.22 The first two elements were sufficiently proven in this case, and were in fact undisputed. We are left with the third. As early as 1910 in the case of United States v. Tan Misa,23 this Court has ruled that to warrant conviction, the possession of dangerous drugs must be with knowledge of the accused, or that animus possidendi existed together with the possession or control of such articles. 24 It has been ruled, however, that possession of dangerous drugs constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused in the absence of a satisfactory explanation of such possession.25 Hence, the burden of evidence is shifted to the accused to explain the absence of knowledge or animus possidendi.26 In this respect, the accused-appellant has utterly failed. His testimony, uncorroborated, self-serving and incredulous, was not given credence by the trial court. We find no reason to disagree. Well-settled is the rule that in the absence of palpable error or grave abuse of discretion on the part of the trial judge, the trial court's evaluation of the credibility of witnesses will not be disturbed on appeal.27 Moreover, evidence must be credible in itself to deserve credence and weight in law. In this case, the accused-appellant admits that when he was asked to get his baggage, he knew it would be

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

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Costs against the accused-appellant. SO ORDERED. Panganiban, Sandoval-Gutierrez, and Carpio, JJ., concur. Xxxxxxx G.R. No. 133254-55 April 19, 2001 plaintiff-appellee,

CONTRARY TO LAW .2 In Criminal Case No. Q-95-64358, the information charged: That on or about the 26th day of December 1995, in Quezon City, Philippines, the said accused not being authorized by law to possess or use any prohibited drug, did, then and there willfully, unlawfully and knowingly have in his possession and under his custody and control 1,254 grams of Marijuana, a prohibited drug. CONTRARY TO LAW ,3 When arraigned on May 21, 1996, accused-appellant pleaded not guilty4 whereupon he was tried. Three witnesses were presented by the prosecution: P/Insp. Sonia S. Ludovico, forensic chemist and chief of the Physical Science Branch of the Philippine National Police Crime Laboratory, Senior Inspector Rodolfo Aguilar of the Narcotics Command, Camp Crame, Quezon City, and PO3 Rolando Duazo of Station 10, Kamuning, Quezon City, a field operative. The prosecution evidence established the following: On December 26, 1995, Sr. Insp. Aguilar applied for a warrant5 in the Regional Trial Court, Branch 90, Dasmariias, Cavite, to search the residence of accused-appellant Robert Salanguit y Ko on Binhagan St., Novaliches, Quezon City. He presented as his witness SPO1 Edmund Badua, who testified that as a poseur-buyer, he was able to purchase 2.12 grams of shabu from accused-appellant. The sale took place in accusedappellant's room, and Badua saw that the shabu was taken by accusedappellant from a cabinet inside his room. The application was granted, and a search warrant was later issued by Presiding Judge Dolores L. Espaol. At about 10:30 p.m. of December 26, 1995, a group of about 10 policemen, along with one civilian informer, went to the residence of accused-appellant to serve the warrant.6

THE PEOPLE OF THE PHILIPPINES, vs. ROBERTO SALANGUIT y KO, accused-appellant. MENDOZA, J.:

This is an appeal from the decision,1 dated January 27, 1998, of the Regional Trial Court, Branch 96, Quezon City, finding accused-appellant Roberto Salanguit y Ko guilty of violation of 16 of Republic Act No. 6425, as amended, and sentencing him accordingly to suffer imprisonment ranging from six (6) months of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum, and of 8 of the same law and sentencing him for such violation to suffer the penalty of reclusion perpetua and to pay a fine of P700, 000.00. Charges against accused-appellant for violations of R.A. No. 6425 were filed on December 28, 1995. In Criminal Case No. Q-95-64357, the information alleged: That on or about the 26th day of December 1995, in Quezon City, Philippines, the said accused, did then and there willfully, unlawfully and knowingly possess and/or use 11.14 grams of Methamphetamine Hydrochloride (Shabu) a regulated drug, without the necessary license and/or prescription therefor, in violation of said law.

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The police operatives knocked on accused-appellants door, but nobody opened it. They heard people inside the house, apparently panicking. The police operatives then forced the door open and entered the house.7 After showing the search warrant to the occupants of the house, Lt. Cortes and his group started searching the house.8 They found 12 small heatsealed transparent plastic bags containing a white crystalline substance, a paper clip box also containing a white crystalline substance, and two bricks of dried leaves which appeared to be marijuana wrapped in newsprint9 having a total weight of approximately 1,255 grams.10 A receipt of the items seized was prepared, but the accused-appellant refused to sign it. 11 After the search, the police operatives took accused-appellant with them to Station 10, EDSA, Kamuning, Quezon City, along with the items they had seized.12 PO3 Duazo requested a laboratory examination of the confiscated evidence.13 The white crystalline substance with a total weight of 2.77 grams and those contained in a small box with a total weight of 8.37 grams were found to be positive for methamphetamine hydrochloride. On the other hand, the two bricks of dried leaves, one weighing 425 grams and the other 850 grams, were found to be marijuana.14 For the defense, accused-appellant testified in his own behalf. His testimony was corroborated by his mother-in-law, Soledad Arcano. Accused-appellant testified that on the night of December 26, 1995, as they were about to leave their house, they heard a commotion at the gate and on the roof of their house. Suddenly, about 20 men in civilian attire, brandishing long firearms, climbed over the gate and descended through an opening in the roof.15 When accused-appellant demanded to be shown a search warrant, a piece of paper inside a folder was waved in front of him. As accusedappellant fumbled for his glasses, however, the paper was withdrawn and he had no chance to read it.16

Accused-appellant claimed that he was ordered to stay in one place of the house while the policemen conducted a search, forcibly opening cabinets and taking his bag containing money, a licensed .45 caliber firearm, jewelry , and canned goods.17 The policemen left at around 12:30 a.m. of December 27, 1995, and, after putting handcuffs on accused-appellant, took him with them to the NARCOM on EDSA, Quezon City, where accused-appellant was detained.18 Accused-appellant's mother-in law, Soledad Arcano, corroborated his testimony. Arcano testified that the policemen ransacked their house, ate their food, and took away canned goods and other valuables. 19 After hearing, the trial court rendered its decision, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered: 1. In Criminal Case No. Q-95-64357, for violation of Sec. 16, Republic Act No. 6425, as amended, finding the accused ROBERTO SALANGUIT y KO guilty beyond reasonable doubt of the crime charged and he is hereby accordingly sentenced to suffer an indeterminate sentence with a minimum of six (6) months of arresto mayor and a maximum of four (4) years and two (2) months of prision correccional; and, 2. In Criminal Case No. Q-95-64358, for violation of Sec. 8, Republic Act No. 6425, as amended, finding the accused ROBERTO SALANGUIT y KO guilty beyond reasonable doubt of the crime charged and he is hereby accordingly sentenced to suffer reclusion perpetua and to pay a fine of P700,000.00. The accused shall further pay the costs of suit.

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The 11.14 grams of methamphetamine hydrochloride and the 1,254 grams of marijuana bricks are hereby confiscated and condemned for disposition according to law. The evidence custodian of this Court is hereby directed to turn such substances over to the National Bureau of Investigation pursuant to law. SO ORDERED.20 Hence this appeal. Accused-appellant contends that THE COURT A QUO GRAVELY ERRED IN DECLARING THE SEARCH WARRANT VALID THE COURT A QUO ERRED IN CONVICTING ACCUSED-APPELLANT FOR ILLEGAL POSSESSION OF METHAMPHETAMINE HYDRO-CHLORIDE(SHABU) THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSSED-APPELLANT FOR VIOLATION 8, R.A. No. 6425 THE COURT A QUO ERRED IN ADMITTING IN EVIDENCE THE TWO (2) BRICKS OF MARIJUANA THE COURT A QUO ERRED IN NOT FINDING THAT THE POLICEMEN USED EXCESSIVE FORCE IN ENFORCING THE SEARCH WARRANT. Accused-appellant is contesting his conviction on three grounds. First, the admissibility of the shabu allegedly recovered from his residence as evidence against him on the ground that the warrant used in obtaining it was invalid. Second, the admissibility in evidence of the marijuana allegedly seized from accused-appellant pursuant to the "plain view" doctrine. Third, the employment of unnecessary force by the police in the execution of the warrant.

First. Rule 126, 4 of the Revised Rules on Criminal Procedure21 provides that a search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. In issuing a search warrant, judges must comply strictly with the requirements of the Constitution and the Rules of Criminal Procedure. No presumption of regularity can be invoked in aid of the process when an officer undertakes to justify its issuance.22 Nothing can justify the issuance of the search warrant unless all the legal requisites are fulfilled. In this case, the search warrant issued against accused-appellant reads:

SEARCH NO.160 For: Viol SEARCH WARRANT TO ANY PEACE OFFICER: G R E E T I N G S: It appearing to the satisfaction of the undersigned after examining under oath SR. INSP. RODOLFO V. AGUILAR, PNP and his witness SPO1 EDMUND M. BADUA, PNP that there is probable cause to believe that ROBERT SALANGUIT has in his possession and control in his premises Binhagan St., San Jose, Quezon City as shown in Annex "A", the properties to wit: UNDETERMINED QUANTITY OF SHABU AND DRUG PARAPHERNALIA which should be seized and brought to the undersigned.

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You are hereby commanded to make an immediate search anytime of the day/night of the premises abovedescribed and forthwith seize and take possession of the above-stated properties and bring said properties to the undersigned to be dealt with as the law directs. GIVEN UNDER MY HAND this 26th day of December 1995 at Imus, Cavite, Philippines.

A -Yes, sir. Q Of what particular assignment or area were you assigned for monitoring or surveillance? A Its within the Quezon City area particularly a house without a number located at Binhagan St., San Jose Quezon City, Sir.

(SGD.) DOLORES L. ESPAOL You know the person who occupies the specific Q Do place? A Yes, sir, he is ROBERT SALANGUIT @ Robert. Accused-appellant assails the validity of the warrant on three grounds: (1) that there was no probable cause to search for drug paraphernalia; (2) that the search warrant was issued for more than one specific offense; and (3) that the place to be searched was not described with sufficient particularity. Existence of Probable Cause The warrant authorized the seizure of "undetermined quantity of shabu and drug paraphernalia." Evidence was presented showing probable cause of the existence of methamphetamine hydrochloride or shabu. Accused-appellant contends, however, that the search warrant issued is void because no evidence was presented showing the existence of drug paraphernalia and the same should not have been ordered to be seized by the trial court.23 The contention has no merit. To be sure, SPO1 Edmund Badua, the intelligence officer who acted as a poseur-buyer, did not testify in the proceedings for the issuance of a search warrant on anything about drug paraphernalia. He stated: Q -Being a member of the Intelligence and Operation Section, NMDU, NARCOM, do you remember if you were assigned into a monitoring or surveillance work? Q Are you familiar with that place? A Yes, sir, as part of my surveillance, I was able to penetrate inside the area and established contract with ROBERT SALANGUIT alias Robert through my friend who introduced me to the former. Q In what particular occasion did you meet ROBERT SALANGUIT alias Robert? A When I was introduced by my friend as a good buyer and drug pusher of shabu, sir . Q Were you able to buy at that time? A Yes, sir. Q How much if you can still remember the amount involved?

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A I was able to buy two point twelve (2.12) grams of shabu in the amount of Two Thousand Seven Hundred Fifty (P2,750.00) pesos, sir . Q Having established contact with ROBERT SALANGUIT @ Robert, do you know where the stuff (shabu) were being kept? A Yes, sir, inside a cabinet inside his room.

A Yes, sir, I was offered by him (ROBERT SALANGUIT @ Robert) that anything I wish to buy bigger quantity of shabu, he is willing to transact to me on cash basis at his price of One Thousand Seven Hundred Fifty (P1,750.00) pesos per gram. Q Are you willing to sign your statement freely and voluntarily? A Yes, sir.24

Q How were you able to know the place where he kept the stuff? A When I first bought the 2.12 grams of shabu from him, it was done inside his room and I saw that the shabu was taken by him inside his cabinet. Q Do you know who is in control of the premises? A Yes, sir, it was ROBERT SALANGUIT @ Robert. Q How sure are you, that the shabu that you bought from ROBERT SALANGUIT @ Robert is genuine shabu? A After I left the house of ROBERT SALANGUIT @ Robert, I proceeded back to our office and reported the progress of my mission to our Chief and presented to him the 2.12, grams of shabu I bought from the subject. Then afterwards, our Chief formally requested the Chief PNP Central Crime Laboratory Services, NPDC, for Technical Analysis which yielded positive result for shabu, a regulated drug as shown in the attached certification of PNP CLS result No. D-414-95 dated 19 December 95. Q Do you have anything more to add or retract from your statement?

However, the fact that there was no probable cause to support the application for the seizure of drug paraphernalia does not warrant the conclusion that the search warrant is void. This fact would be material only if drug paraphernalia was in fact seized by the police. The fact is that none was taken by virtue of the search warrant issued. If at all, therefore, the search warrant is void only insofar as it authorized the seizure of drug paraphernalia, but it is valid as to the seizure of methamphetamine hydrochloride as to which evidence was presented showing probable cause as to its existence. Thus, in Aday v. Superior Court,25 the warrant properly described two obscene books but improperly described other articles. It was held: Although the warrant was defective in the respects noted, it does not follow that it was invalid as a whole. Such a conclusion would mean that the seizure of certain articles, even though proper if viewed separately, must be condemned merely because the warrant was defective with respect to other articles. The invalid portions of the warrant are severable from the authorization relating to the named books, which formed the principal basis of the charge of obscenity. The search for and seizure of these books, if otherwise valid, were not rendered illegal by the defects concerning other articles. ...In so holding we do not mean to suggest that invalid portions "of a warrant will be treated as severable under all circumstances. We recognize the danger that warrants might be obtained which are essentially general in character but as to minor

16

items meet the requirement of particularity, and that wholesale seizures might be made under them, in the expectation that the seizure would in any event be upheld as to the property specified. Such an abuse of the warrant procedure, of course, could not be tolerated. It would be a drastic remedy indeed if a warrant, which was issued on probable cause and particularly describing the items to be seized on the basis thereof, is to be invalidated in toto because the judge erred in authorizing a search for other items not supported by the evidence. 26 Accordingly, we hold that the first part of the search warrant, authorizing the search of accused-appellant's house for an undetermined quantity of shabu, is valid, even though the second part, with respect to the search for drug paraphernalia, is not. Specificity of the Offense Charged Accused-appellant contends that the warrant was issued for more than one specific offense because possession or use of methamphetamine hydrochloride and possession of drug paraphernalia are punished under two different provisions of R.A. No. 6425.27 It will suffice to quote what this Court said in a similar case to dispose of this contention: While it is true that the caption of the search warrant states that it is in connection with "Violation of R.A. 6425, otherwise known as the Dangerous Drugs Act of 1972," it is clearly recited in the text thereof that "There is probable cause to believe that Adolfo Olaes alias 'Debie' and alias 'Baby' of No.628 Comia St., Filtration, Sta. Rita, Olongapo City, has in their session and control and custody of marijuana dried stalks/leaves/ seeds/cigarettes and other regulated/prohibited and exempt narcotics preparations which is the subject of the offense stated above." Although the specific section of the Dangerous Drugs Act is not pinpointed, there is no question at all of the specific offense alleged to have been committed as a basis for the finding of probable cause. The search warrant also satisfies the requirement in the Bill of Rights of the

particularity of the description to be made of the "place to be searched and the persons or things to be seized." 28 Indeed, in People v. Dichoso29 the search warrant was also for "Violation of R.A. 6425," without specifying what provisions of the law were violated, and it authorized the search and seizure of "dried marijuana leaves and methamphetamine hydrochloride (shabu) and sets of paraphernalias (sic)." This Court, however, upheld the validity of the warrant: Appellant's contention that the search warrant in question was issued for more than (1) offense, hence, in violation of Section 3, Rule 126 of the Rules of Court, is unpersuasive. He engages in semantic juggling by suggesting that since illegal possession of shabu, illegal possession of marijuana and illegal possession of paraphernalia are covered by different articles and sections of the Dangerous Drugs Act of 1972, the search warrant is clearly for more than one (1) specific offense. In short, following this theory, there should have been three (3) separate search warrants, one for illegal possession of shabu, the second for illegal possession of marijuana and the third for illegal possession of paraphernalia. This argument is pedantic. The Dangerous Drugs Act of 1972 is a special law that deals specifically with dangerous drugs which are subsumed into "prohibited" and "regulated" drugs and defines and penalizes categories of offenses which are closely related or which belong to the same class or species. Accordingly, one (1) search warrant may thus be validly issued for the said violations of the Dangerous Drugs Act. 30 Similarly, in another case,31 the search warrant was captioned: "For Violation of P .D. No.1866 (Illegal Possession of Firearms, etc.)." The validity of the warrant was questioned on the ground that it was issued without reference to any particular provision in P.D. No.1866, which punished several offenses. We held, however, that while illegal possession of firearms is penalized under 1 of P.D. No.1866 and illegal possession of explosives is penalized under 3 thereof, the decree is a codification of the

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various laws on illegal possession of firearms, ammunitions, and explosives which offenses are so related as to be subsumed within the category of illegal possession of firearms, etc. under P.D. No.1866. Thus, only one warrant was necessary to cover the violations under the various provisions of the said law. Particularly of the Place Accused-appellant contends that the search warrant failed to indicate the place to be searched with sufficient particularity. This contention is without merit. As the Solicitor General states: .....While the address stated in the warrant is merely "Binhagan St., San Jose, Quezon City," the trial court took note of the fact that the records of Search Warrant Case No.160 contained several documents which identified the premises to be searched, to wit: 1) the application for search warrant which stated that the premises to be searched was located in between No.7 and 11 at Binhagan Street, San Jose, Quezon City; 2) the deposition of witness which described the premises as "a house without a number located at Binhagan St., San Jose, Quezon City; and 3) the pencil sketch of the location of the premises to be searched. In fact, the police officers who raided appellant's house under the leadership of Police Senior Inspector Rodolfo Aguilar could not have been mistaken as Inspector Aguilar resides in the same neighborhood in Binhagan where appellant lives and in fact Aguilar's place is at the end of appellant's place in Binhagan. Moreover, the house raided by Aguilar's team is undeniably appellant'.s house and it was really appellant who was the target. The raiding team even first ascertained through their informant that appellant was inside his residence before they actually started their operation.32

The rule is that a description of the place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended to be searched.33 For example, a search warrant authorized a search of Apartment Number 3 of a building at 83 Pleasant Street, Malborough, Massachusetts. As it turned out, there were five apartments in the basement and six apartments on both the ground and top floors and that there was an Apartment Number 3 on each floor. However, the description was made determinate by a reference to the affidavit supporting the warrant that the apartment was occupied by the accused "Morris Ferrante of 83 Pleasant Street, Malboro Mass." 34 In this case, the location of accused-appellant's house being indicated by the evidence on record, there can be no doubt that the warrant described the place to be searched with sufficient particularity.1wphi1.nt In sum, we hold that with respect to the seizure of shabu from accusedappellant's residence, Search Warrant No.160 was properly issued, such warrant being founded on probable cause personally determined by the judge under oath or affirmation of the deposing witness and particularly describing the place to be searched and the things to be seized. Second. The search warrant authorized the seizure of methamphetamine hydrochloride or shabu but not marijuana. However, seizure of the latter drug is being justified on the ground that the drug was seized within the "plain view" of the searching party. This is contested by accused-appellant. Under the "plain view doctrine," unlawful objects within the "plain view" of an officer who has the right to be in the position to have that view are subject to seizure and may be presented in evidence. 35 For this doctrine to apply, there must be: (a) prior justification; (b ) inadvertent discovery of the evidence; and (c) immediate apparent illegality of the evidence before the police.36 The question is whether these requisites were complied with by the authorities in seizing the marijuana in this case. Prior Justification and Discovery by Inadvertence Because the location of the shabu was indicated in the warrant and thus known to the police operatives, it is reasonable to assume that the police found the packets of the shabu first. Once the valid portion of the search

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warrant has been executed, the "plain view doctrine" can no longer provide any basis -for admitting the other items subsequently found. As has been explained: What the 'plain view' cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification -whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused -and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the 'plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.37 The only other possible justification for an intrusion by the police is the conduct of a search pursuant to "accused-appellant's lawful arrest for possession of shabu. However, a search incident to a lawful arrest is limited to the person of the one arrested and the premises within his immediate control.18 The rationale for permitting such a search is to prevent the person arrested from obtaining a weapon to commit violence, or to reach for incriminatory evidence and destroy it. The police failed to allege in this case the time when the marijuana was found, i.e., whether prior to, or contemporaneous with, the shabu subject of the warrant, or whether it was recovered on accused-appellant's person or in an area within his immediate control. Its recovery, therefore, presumably during the search conducted after the shabu had been recovered from the cabinet, as attested to by SPO1 Badua in his depostion, was invalid. Apparent Illegality of the Evidence

The marijuana bricks were wrapped in newsprint. There was no apparent illegality to justify their seizure. This case is similar to People. v. Musa39 in which we declared inadmissible the marijuana recovered by NARCOM agents because the said drugs were contained in plastic bag which gave no indication of its contents. We explained: Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen, they had no clue as to its contents. They had to ask the appellant what the bag contained. When the appellant refused to respond, they opened it and found the marijuana. Unlike Ker v. California, where the marijuana was visible to the police officer's eyes, the NARCOM agents in this case could not have discovered the inculpatory nature of the contents of the bag had they not forcibly opened it; Even assuming then, that the NARCOM agents inadvertently came across the plastic bag because it was within their "plain view," what may be said to be the object in their "plain view" was just the plastic bag and not the marijuana. The incriminating nature of the contents of the plastic bag was not immediately apparent from the "plain view" of said object. It cannot be claimed that the plastic bag clearly betrayed its contents, whether by its distinctive configuration, is transparency, or otherwise, that its contents are obvious to an observer .40 No presumption of regularity may be invoked by an officer in aid of the process when he undertakes to justify an encroachment of rights secured by the Constitution.41 In this case, the marijuana allegedly found in the possession of accused-appellant was in the form of two bricks wrapped in newsprint. Not being in a transparent container, the contents wrapped in newsprint could not have been readily discernible as marijuana. Nor was there mention of the time or manner these items were discovered. Accordingly, for failure of the prosecution to prove that the seizure of the marijuana without a warrant was conducted in accordance with the "plain view doctrine," we hold that the marijuana is inadmissible in evidence against accused-appellant. However, the confiscation of the drug must be upheld.

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Third. Accused-appellant claims that undue and unnecessary force was employed by the searching party in effecting the raid. Rule 126, 7 of the Revised Rules on Criminal Procedure42 provides: Right to break door or window to effect search. - The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein. Accused-appellant's claim that the policemen had clambered up the roof of his house to gain entry and had broken doors and windows in the process is unsupported by reliable and competent proof. No affidavit or sworn statement of disinterested persons, like the barangay officials or neighbors, has been presented by accused-appellant to attest to the truth of his claim. In contrast, Aguilar and Duano's claim that they had to use some force in order to gain entry cannot be doubted. The occupants of the house, especially accused-appellant, refused to open the door despite the fact that the searching party knocked on the door several times. Furthermore, the agents saw the suspicious movements of the people inside the house. These circumstances justified the searching party's forcible entry into the house, founded as it is on the apprehension that the execution of their mission would be frustrated unless they do so. WHEREFORE, in Criminal Case No. Q-95-64357, the decision of the Regional Trial Court, Branch 96, Quezon City, finding accused-appellant Roberto Salanguit y Ko guilty of possession of illegal drugs under 16 of R.A. No.6425, otherwise known as the Dangerous Drugs Act, as amended, and sentencing him to suffer a prison term ranging from six (6) months of arresto mayor, as minimum, and four (4) years and two (2) months of prision correccional, as maximum, and ordering the confiscation of 11.14 grams of methamphetamine hydrochloride is AFFIRMED .

In Criminal Case No. Q-95-64358, the decision of the same court finding accused-appellant Roberto Salanguit y Ko guilty of possession of prohibited drugs under 8 of R.A. No. 6425, as amended, and sentencing him to suffer the penalty of reclusion perpetua and to pay a fine of Pl00,000.00 is hereby REVERSED and SET ASIDE and accusedappellant is ACQUITTED of the crime charged. However, the confiscation of the 1,254 grams of marijuana, as well as the 11.14 grams of methamphetamine hydrochloride, and its disposition as ordered by the trial court is AFFIRMED . SO ORDERED. Bellosillo, Quisumbing, Buena, De Leon, Jr. JJ: concur. Xxxxxxxxxx

[G.R. No. 153087. August 7, 2003] BERNARD R. NALA, petitioner, vs. JUDGE JESUS M. BARROSO, JR., Presiding Judge, Regional Trial Court, Branch 10, 10th Judicial Region, Malaybalay City, respondent. DECISION YNARES-SANTIAGO, J.: In determining the existence of probable cause for the issuance of a search warrant, the examining magistrate must make probing and exhaustive, not merely routine or pro forma examination of the applicant and the witnesses.[1] Probable cause must be shown by the best evidence that could be obtained under the circumstances. The introduction of such evidence is necessary especially where the issue is the existence of a negative ingredient of the offense charged, e.g., the absence of a license required by law.[2]

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This is a petition for certiorari under Rule 65 of the Rules of Court, seeking to annul the October 18, 2001[3][4] Orders[5] of the Regional Trial Court of Malaybalay City, Branch 10, which denied petitioners Omnibus Motion to Quash[6] Search and Seizure Warrant No. 30-01.[7] and February 15, 2002 On June 25, 2001, PO3 Macrino L. Alcoser applied for the issuance of a warrant to search the person and residence of petitioner Bernard R. Nala, who was referred to in the application as Rumolo[8] Nala alias Long[9] of Purok 4, Poblacion, Kitaotao, Bukidnon.[10] The application was filed in connection with petitioners alleged illegal possession of one caliber .22 magnum and one 9 mm. pistol in violation of Republic Act No. 8294, which amended Presidential Decree No. 1866, or the law on Illegal Possession of Firearms. On the same day, after examining Alcoser and his witness Ruel Nalagon, respondent Presiding Judge of RTC of Malaybalay City, Branch 10, issued Search and Seizure Warrant No. 30-01, against Romulo Nala alias Lolong Nala who is said to be residing at Purok 4, Poblacion, Kitaotao, Bukidnon. At around 6:30 in the morning of July 4, 2001, Alcoser and other police officers searched petitioners house and allegedly seized the following articles, to wit -1- one piece caliber .38 revolver (snub-nose) with Serial Number 1125609 -1- one pc. fragmentation grenade (cacao type) -1- one pc. .22 long barrel -5- pcs live ammunition for caliber .38 revolver -4- four pcs. of disposable lighter and unestimated numbers of cellophane used for packing of shabu[11] On July 5, 2001, Criminal Cases Nos. 10943-2001-P and 10944-2001-P for illegal possession of firearms, ammunitions and explosives were filed

against the petitioner before the 5th Municipal Circuit Trial Court of Kitaotao, Bukidnon.[12] On August 8, 2001, petitioner filed an Omnibus Motion[13] seeking to (1) quash Search and Seizure Warrant No. 30-01; (2) declare inadmissible for any purpose the items allegedly seized under the said warrant; and (3) direct the release of the air rifle seized by the police officers. Respondent judge denied the Omnibus Motion to Quash but ordered the return of the air rifle to petitioner. As to the validity of the search warrant, respondent found that probable cause was duly established from the deposition and examination of witness Ruel Nalagon and the testimony of PO3 Macrino L. Alcoser who personally conducted a surveillance to confirm the information given by Nalagon. The fact that the items seized were not exactly the items listed in the warrant does not invalidate the same because the items seized bear a direct relation to the crime of illegal possession of firearms. Respondent judge also found that petitioner was sufficiently identified in the warrant although his first name was erroneously stated therein as Romulo and not Bernard, considering that the warrant was couched in terms that would make it enforceable against the person and residence of petitioner and no other. The dispositive portion of the questioned Order reads: WHEREFORE, finding the Omnibus Motion to be without merit, the same is hereby DENIED. However, as to the questioned Air Rifle, the same is allowed to be withdrawn and ordered returned to herein movant. SO ORDERED.[14] Petitioner filed a motion for reconsideration but the same was denied on February 15, 2002.[15] Hence, he filed the instant petition alleging that respondent judge committed grave abuse of discretion in issuing the questioned orders. The issues for resolution are as follows: (1) Was petitioner sufficiently described in the search and seizure warrant? (2) Was there probable cause for the issuance of a search and seizure warrant against petitioner?

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and (3) Whether or not the firearms and explosive allegedly found in petitioners residence are admissible in evidence against him even though said firearms were not listed in the search and seizure warrant. At the outset, it must be noted that the instant petition for certiorari was filed directly with this Court in disregard of the rule on hierarchy of courts. In the interest of substantial justice and speedy disposition of cases, however, we opt to take cognizance of this petition in order to address the urgency and seriousness of the constitutional issues raised.[16] In rendering decisions, courts have always been conscientiously guided by the norm that on the balance, technicalities take a backseat against substantive rights, and not the other way around. Thus, if the application of the Rules would tend to frustrate rather than promote justice, it is always within our power to suspend the rules, or except a particular case from its operation.[17] Article III, Section 2 of the Constitution guarantees every individual the right to personal liberty and security of homes against unreasonable searches and seizures, viz: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The purpose of the constitutional provision against unlawful searches and seizures is to prevent violations of private security in person and property, and unlawful invasion of the sanctity of the home, by officers of the law acting under legislative or judicial sanction, and to give remedy against such usurpations when attempted.[18] Corollarily, Rule 126, Sections 4 and 5 of the 2000 Rules on Criminal Procedure provide for the requisites for the issuance of a search warrant, to wit:

SEC. 4. Requisites for issuing search warrant. A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. SEC. 5. Examination of complainant; record. The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. More simply stated, the requisites of a valid search warrant are: (1) probable cause is present; (2) such presence is determined personally by the judge; (3) the complainant and the witnesses he or she may produce are personally examined by the judge, in writing and under oath or affirmation; (4) the applicant and the witnesses testify on facts personally known to them; and (5) the warrant specifically describes the person and place to be searched and the things to be seized.[19] On the first issue, the failure to correctly state in the search and seizure warrant the first name of petitioner, which is Bernard and not Romulo or Rumolo, does not invalidate the warrant because the additional description alias Lolong Nala who is said to be residing at Purok 4, Poblacion, Kitaotao, Bukidnon sufficiently enabled the police officers to locate and identify the petitioner. What is prohibited is a warrant against an unnamed party, and not one which, as in the instant case, contains a descriptio personae that will enable the officer to identify the accused without difficulty.[20] The probable cause for a valid search warrant has been defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed, and that objects sought in connection with the offense are in the place sought to be searched. This probable cause must be shown to be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay.[21] In determining its existence, the examining

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magistrate must make a probing and exhaustive, not merely routine or pro forma examination of the applicant and the witnesses.[22] Probable cause must be shown by the best evidence that could be obtained under the circumstances. On the part of the applicant and witnesses, the introduction of such evidence is necessary especially where the issue is the existence of a negative ingredient of the offense charged, e.g., the absence of a license required by law.[23] On the other hand, the judge must not simply rehash the contents of the affidavits but must make his own extensive inquiry on the existence of such license, as well as on whether the applicant and the witnesses have personal knowledge thereof. In Paper Industries Corporation of the Philippines (PICOP) v. Asuncion, [24] we declared as void the search warrant issued by the trial court in connection with the offense of illegal possession of firearms, ammunitions and explosives, on the ground, inter alia, of failure to prove the requisite probable cause. The applicant and the witness presented for the issuance of the warrant were found to be without personal knowledge of the lack of license to possess firearms of the management of PICOP and its security agency. They likewise did not testify as to the absence of license and failed to attach to the application a no license certification from the Firearms and Explosives Office of the Philippine National Police. Thus Bacolod appeared during the hearing and was extensively examined by the judge. But his testimony showed that he did not have personal knowledge that the petitioners, in violation of PD 1866, were not licensed to possess firearms, ammunitions or explosives x x x x xxx x x

Moreover, Bacolod failed to affirm that none of the firearms seen inside the PICOP compound was licensed. Bacolod merely declared that the security agency and its guards were not licensed. He also said that some of the firearms were owned by PICOP. Yet, he made no statement before the trial court that PICOP, aside from the security agency, had no license to possess those firearms. Worse, the applicant and his witnesses inexplicably failed to attach to the application a copy of the aforementioned no license certification from the Firearms and Explosives Office (FEO) of the PNP, or to present it during the hearing. Such certification could have been easily obtained, considering that the FEO was located in Camp Crame where the unit of Bacolod was also based.[25] In the case at bar, the search and seizure warrant was issued in connection with the offense of illegal possession of firearms, the elements of which are (1) the existence of the subject firearm; and (2) the fact that the accused who owned or possessed it does not have the license or permit to possess the same.[26]he does not have the license or permit to possess the same. Nowhere, however, in the affidavit and testimony of witness Ruel Nalagon nor in PO3 Macrino L. Alcosers application for the issuance of a search warrant was it mentioned that petitioner had no license to possess a firearm. While Alcoser testified before the respondent judge that the firearms in the possession of petitioner are not licensed, this does not qualify as personal knowledge but only personal belief because neither he nor Nalagon verified, much more secured, a certification from the appropriate government agency that petitioner was not licensed to possess a firearm. This could have been the best evidence obtainable to prove that petitioner had no license to possess firearms and ammunitions, but the police officers failed to present the same. Probable cause as applied to illegal possession of firearms would therefore be such facts and circumstances which would lead a reasonably discreet and prudent man to believe that a person is in possession of a firearm and that Regrettably, even the examination conducted by the respondent judge on Nalagon and Alcoser fell short of the required probing and exhaustive inquiry for the determination of the existence of probable cause. Thus COURT: [To witness Ruel Nalagon]

When questioned by the judge, Bacolod stated merely that he believed that the PICOP security guards had no license to possess the subject firearms. This, however, does not meet the requirement that a witness must testify on his personal knowledge, not belief. x x x x xxx x x

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Q I am showing you this document/sworn statement of Ruel Nala[gon] given to PO3 Rodrigo Delfin, Investigator, SCOT/PDEU Bukidnon Police Provincial Office, Camp Ramon Onahon, Malaybalay City on or about 12:30 in the afternoon of June 25, 2001, in the presence of PO3 Macrino Alcoser, Operative of Special Case Operation Team. Are you the same Ruel Nalagon who has given a statement before the above-named police officer? A Yes, Sir.

A No sir, he is bringing often times the .22 magnum and I saw him only twice bringing 9MM pistol. Q A Do you have something more to add or say in this investigation? None as of this moment.

That is all.[27] COURT: Next witness [PO3 Macrino L. Alcoser] x x x x xxx x x

Q You have given a statement before the abovenamed police officer or Investigator that you have personal knowledge that a certain Romulo Nala in Purok 4, Poblacion, Kitaotao, Bukidnon has in his possession a .22 magnum pistol and 9MM pistol[?] Why and how do you know that he has in his possession such pistols? A Because I personally saw and witnessed him bringing or carrying said pistols. Q Where did you see him bringing or carrying said pistols?

Q Regarding this application filed by your office, what is your basis in arriving into a conclusion that this certain Romulo Nala of Purok 4, Poblacion, Kitaotao, Bukidnon has in his possession illegal firearms? A Based on the report of our reliable asset, a civilian agent who was able to personally witness this Mr. Romulo Nala who has in his possession one (1) .22 magnum and one (1) 9MM pistols which are unlicensed. Q What action [was] commenced by your office if any as to the report made by your asset regarding the alleged possession of Mr. Romulo Nala of unlicensed firearms? A Our officer through authorized personnel, conducted surveillance operation on the spot, headed by this affiant. Q What was the result of the surveillance conducted by your office?

A I saw him personally in the public market of Kitaotao, Bukidnon. I also witnessed him firing said pistol especially when he is drunk. Q A Q How often did you see him carrying and firing said pistols? Many times. Do you know Romulo Nala? Are you friends with said person?

A Yes, sir because we are neighbors in Purok 4, Poblacion, Kitaotao, Bukidnon. Q This Romulo Nala, is he bringing these two (2) pistols at the same time?

A The result turned out to be positive and we have [concrete] evidence that indeed this Romulo Nala is engaged with the above illegal act.

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Q A

Are there more information you wish to inform this Court. None, as of the moment.

view of the nullity of the search warrant which made possible the seizure of the questioned articles. The settled rule is that where entry into the premises to be searched was gained by virtue of a void search warrant, prohibited articles seized in the course of the search are inadmissible against the accused. In Roan v. Gonzales,[31] the prosecution sought to charge the accused with illegal possession of firearms on the basis of the items seized in a search through a warrant which the Court declared as void for lack of probable cause. In ruling against the admissibility of the items seized, the Court said Prohibited articles may be seized but only as long as the search is valid. In this case, it was not because: 1) there was no valid search warrant; and 2) absent such a warrant, the right thereto was not validly waived by the petitioner. In short, the military officers who entered the petitioners premises had no right to be there and therefore had no right either to seize the pistol and bullets.[32] Conformably, the articles allegedly seized in the house of petitioner cannot be used as evidence against him because access therein was gained by the police officer using a void search and seizure warrant. It is as if they entered petitioners house without a warrant, making their entry therein illegal, and the items seized, inadmissible. Moreover, it does not follow that because an offense is malum prohibitum, the subject thereof is necessarily illegal per se. Motive is immaterial in mala prohibita, but the subjects of this kind of offense may not be summarily seized simply because they are prohibited. A warrant is still necessary,[33] because possession of any firearm becomes unlawful only if the required permit or license therefor is not first obtained.[34] So also, admissibility of the items seized cannot be justified under the plain view doctrine. It is true that, as an exception, the police officer may seize without warrant illegally possessed firearm, or any contraband for that matter, inadvertently found in plain view. However, said officer must have a prior right to be in the position to have that view of the objects to be seized. The plain view doctrine applies when the following requisites

Q Do you affirm the truthfulness of the above statement made by you and [will you] voluntarily sign the same? A Yes, sir.

That is all.[28] It did not even occur to the examining judge to clarify how did the police officers conduct an on the spot surveillance on June 25, 2001 on a 2hour interval between 12:30 p.m.,[29] when Nalagon executed the affidavit, and 2:30 p.m.,[30] when PO3 Macrino L. Alcoser testified before the respondent judge that they conducted surveillance operation on the spot right after Nalagon executed his affidavit. Even if we apply the presumption of regularity in the performance of duty, the on the spot surveillance claimed by Alcoser contradicts his statement in the application for the issuance of warrant that he conducted long range surveillance of petitioner. At any rate, regardless of the nature of the surveillance and verification of the information carried out by the police officers, the fact remains that both the applicant, PO3 Macrino L. Alcoser, and his witness Ruel Nalagon did not have personal knowledge of petitioners lack of license to possess firearms, ammunitions and explosive; and did not adduce the evidence required to prove the existence of probable cause that petitioner had no license to possess a firearm. Hence, the search and seizure warrant issued on the basis of the evidence presented is void. Can petitioner be charged with illegal possession of firearms and explosive allegedly seized from his house? Petitioner contends that said articles are inadmissible as evidence against him because they were not the same items specifically listed in the warrant. The Office of the Provincial Prosecutor, on the other hand, claims that petitioner should be held liable because the items seized bear a direct relation to the offense of illegal possession of firearms. These arguments, however, become immaterial in

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concur: (a) 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; (b) the discovery of the evidence in plain view is inadvertent; (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. The law enforcement officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area. In the course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating the accused. The object must be open to eye and hand and its discovery inadvertent.[35] No presumption of regularity may be invoked in aid of the process when the officer undertakes to justify an encroachment of rights secured by the Constitution. In this case, the firearms and explosive were found at the rear portion of petitioners house[36] but the records do not show how exactly were these items discovered. Clearly, therefore, the plain view doctrine finds no application here not only because the police officers had no justification to search the house of petitioner (their search warrant being void for lack of probable cause), but also because said officers failed to discharge the burden of proving that subject articles were inadvertently found in petitioners house. The issue of the reasonableness of the implementation of the search and seizure warrant, i.e., whether the search was conducted in the presence of witnesses and whether the air rifle which the trial court ordered to be returned to petitioner was indeed among the items seized during the search, are matters that would be best determined in the pending administrative case for grave misconduct and irregularity in the performance of duty against the police officers who conducted the search. Considering that the search and seizure warrant in this case was procured in violation of the Constitution and the Rules of Court, all the items seized in petitioners house, being fruits of the poisonous tree, are inadmissible for any purpose in any proceeding. The exclusion of these unlawfully seized evidence is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures.[37][38] Pending resolution of said cases, however, the articles seized are to remain in custodia legis.[39] Hence, the complaints filed against petitioner for illegal

possession of firearms and explosive based on illegally obtained evidence have no more leg to stand on. Finally, the Court notes that among the items seized by the officers were four pcs. of disposable lighter and unestimated numbers of cellophane used for packing of shabu. These items are not contraband per se, nor objects in connection with the offense of illegal possession of firearms for which the warrant was issued. Moreover, it is highly preposterous to assume that these items were used in connection with offenses involving illegal drugs. Even granting that they were, they would still be inadmissible against the petitioner for being products of an illegal search. Hence, the subject articles should be returned to petitioner.[40] WHEREFORE, in view of all the foregoing, the petition is GRANTED. The October 18, 2001 and February 15, 2002 Orders of the Regional Trial Court of Malaybalay City, Branch 10, are REVERSED and SET ASIDE insofar as it denied petitioners omnibus motion to quash the search warrant. Search and Seizure Warrant No. 30-01 dated June 25, 2001 is declared VOID and the articles seized by virtue thereof are declared inadmissible in evidence. Pending resolution of Criminal Case Nos. 10943-2001-P and 10944-2001-P for illegal possession of firearms, ammunitions and explosive against petitioner, the items (caliber .38 revolver with Serial Number 1125609 and 5 pieces live ammunitions; fragmentation grenade; and .22 long barrel) subject thereof, must remain in custodia legis. The four pieces of disposable lighter and cellophane seized should be returned to petitioner. SO ORDERED. Davide, Jr., C.J., (Chairman), Vitug, Carpio, and Azcuna, JJ., concur. Xxx

[G.R. No. 94902-06. April 21, 1999]

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BENJAMIN V. KHO and ELIZABETH ALINDOGAN, petitioners, vs. HON. ROBERTO L. MAKALINTAL and NATIONAL BUREAU OF INVESTIGATION, respondents. DECISION PURISIMA, J.: This is a petition for certiorari assailing the Order, dated July 26, 1990, of Branch LXXVII of the Metropolitan Trial Court of Paranaque, which denied petitioners Motion to Quash Search Warrants emanating from the same Court. Petitioners sought to restrain the respondent National Bureau of Investigation (NBI) from using the objects seized by virtue of such warrants in any case or cases filed or to be filed against them and to return immediately the said items, including the firearms, ammunition and explosives, radio communication equipment, hand sets, transceivers, two units of vehicles and motorcycle. The antecedent facts are as follows: On May 15, 1990, NBI Agent Max B. Salvador applied for the issuance of search warrants by the respondent Judge against Banjamin V. Kho, now petitioner, in his residence at No. 45 Bb. Ramona Tirona St., BF Homes, Phase I, Paranaque. On the same day, Eduardo T. Arugay, another NBI agent, applied with the same court for the issuance of search warrants against the said petitioner in his house at No. 326 McDivitt St., Bgy. Moonwalk, Paranaque. The search warrants were applied for after teams of NBI agents had conducted a personal surveillance and investigation in the two houses referred to on the basis of confidential information they received that the said places were being used as storage centers for unlicensed firearms and chop-chop vehicles. Respondent NBI sought for the issuance of search warrants in anticipation of criminal cases to be instituted against petitioner Kho. On the same day, the respondent Judge conducted the necessary examination of the applicants and their witnesses, after which he issued Search Warrant Nos. 90-11, 90-12, 90-13, 90-14, and 90-15. On the following day, May 16, 1990, armed with Search Warrant Nos. 90-11 and 90-12, NBI agents searched subject premises at BF Homes,

Paranaque, and they recovered various high-powered firearms and hundreds of rounds of ammunition. Meanwhile, another search was conducted at the house at No. 326 McDivitt St. Bgy. Moonwalk, Paranaque, by another team of NBI agents using Search Warrant Nos. 9013, 90-14 and 90-15. The said second search yielded several highpowered firearms with explosives and more than a thousand rounds of ammunition. The simultaneous searches also resulted in the confiscation of various radio and telecommunication equipment, two units of motor vehicles (Lite-Ace vans) and one motorcycle. Upon verification with the Firearms and Explosives Unit in Camp Crame, the NBI agents found out that no license has ever been issued to any person or entity for the confiscated firearms in question. Likewise, the radio agents found out that no license has ever been issued to any person or entity for the confiscated firearms in question. Likewise, the radio tranceivers recovered and motor vehicles seized turned out to be unlicensed and unregistered per records of the government agencies concerned. On May 22, 1990, the raiding teams submitted separate returns to the respondent Judge requesting that the items seized be in the continued custody of the NBI (Annexes O, P, and Q, Petition). On May 28, 1990, the petitioners presented a Motion to Quash the said Search Warrants, contending that: 1. The subject search warrants were issued without probable cause; 2. The same search warrants are prohibited by the Constitution for being general warrants; 3. The said search warrants were issued in violation of the procedural requirements set forth by the Constitution; 4. The search warrants aforesaid were served in violation of the Revised Rules of Court; and 5. The objects seized were all legally possessed and issued. On July 26, 1990, respondent Judge issued the assailed Order denying the said Motion To Quash interposed by petitioners. Petitioners question the issuance of subject search warrants,

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theorizing upon the absence of any probable cause therefor. They contend that the surveillance and investigation conducted by NBI agents within the premises involved, prior to the application for the search warrants under controversy, were not sufficient to vest in the applicants personal knowledge of facts and circumstances showing or indicating the commission of a crime by them (petitioners). Petitioners contention is untenable. Records show that the NBI agents who conducted the surveillance and investigation testified unequivocably that they saw guns being carried to and unloaded at the two houses searched, and motor vehicles and spare parts were stored therein. In fact, applicant Max B. Salvador declared that he personally attended the surveillance together with his witnesses (TSN, May 15, 1990, pp. 2-3), and the said witnesses personally saw the weapons being unloaded from motor vehicles and carried to the premises referred to. NBI Agent Ali Vargas testified that he actually saw the firearms being unloaded from a Toyota Lite-Ace van and brought to the aformentioned house in BF Homes, Paranaque because he was there inside the compound posing as an appliance agent (TSN, May 15, 1990, pp. 4-5). It is therefore decisively clear that the application for the questioned search warrants was based on the personal knowledge of the applicants and their witnesses. In the case of Central Bank v. Morfe (20 SCRA 507), this Court ruled that the question of whether or not a probable cause exists is one which must be determined in light of the conditions obtaining in given situations. In Luna v. Plaza (26 SCRA 310), it held that the existence of a probable cause depends to a large extent upon the finding or opinion of the judge who conducted the required examination of the applicants and the witnesses. After a careful study, the Court discerns no basis for disturbing the findings and conclusions arrived at by the respondent Judge after examining the applicants and witnesses. Respondent judge had the singular opportunity to assess their testimonies and to find out their personal knowledge of facts and circumstances enough to create a probable cause. The Judge was the one who personally examined the applicants and witnesses and who asked searching questions vis-a-vis the applications for search warrants. He was thus able to observe and determine whether subject applicants and their witnesses gave accurate

accounts of the surveillance and investigation they conducted at the premises to be searched. In the absence of any showing that respondent judge was recreant of his duties in connection with the personal examination he so conducted on the affiants before him, there is no basis for doubting the reliability and correctness of his findings and impressions. Petitioners brand as fatally defective and deficient the procedure followed in the issuance of subject search warrants, reasoning out that the same did not comply with constitutional and statutory requirements. They fault respondent Judge for allegedly failing to ask specific questions they deem particularly important during the examination of the applicants and their witnesses. To buttress their submission, petitioners invite attention to the following question, to wit: How did you know that there are unlicensed firearms being kept by Benjamin Kho at No. 45 Bb. Ramona Tirona St., Phase I, BF Homes, Paranaque, Metro Manila? (TSN, Ali Vargas, May 15, 1990, p. 4) Petitioners argue that by propounding the aforequoted question, the respondent Judge assumed that the firearms at the premises to be searched were unlicensed, instead of asking for a detailed account of how the NBI agents came to know that the firearms being kept thereat were unlicensed. This stance of petitioners is similarly devoid of any sustainable basis. Nothing improper is perceived in the manner the respondent Judge conducted the examination of subject applicants for search warrants and their witnesses. He personally examined them under oath, and asked them searching questions on the facts and circumstances personally known to them, in compliance with prescribed procedure and legal requirements. It can be gleaned that the sworn statements and affidavits submitted by the witnesses were duly attached to the pertinent records of the proceedings. It was within the discretion of the examining Judge to determine what questions to ask the witnesses so long as the questions asked are germane to the pivot of inquiry - the existence or absence of a probable cause. Petitioners claim that subject search warrants are general warrants proscribed by the Constitution. According to them, the things to be seized were not described and detailed out, i.e. the firearms listed were not

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classified as to size or make, etc. Records on hand indicate that the search warrants under scrutiny specifically describe the items to be seized thus: Search Warrant No. 90-11 Unlicensed radio communications equipments such as transmitters, transceivers, handsets, scanners, monitoring device and the like. Search Warrant No. 90-13 Unlicensed radio communications equipments such as transmitters, transceivers, handsets, radio communications equipments, scanners, monitoring devices and others. The use of the phrase and the like is of no moment. The same did not make the search warrants in question general warrants. In Oca v. Maiquez (14 SCRA 735), the Court upheld the warrant although it described the things to be seized as books of accounts and allied papers. Subject Search Warrant Nos. 90-12 and 90-15 refer to: Unlicensed firearms of various calibers and ammunitions for the said firearms. Search Warrant No. 90-14 states: Chop-chop vehicles and other spare parts. The Court believes, and so holds, that the said warrants comply with Constitutional and statutory requirements. The law does not require that the things to be seized must be described in precise and minute detail as to leave no room for doubt on the part of the searching authorities. Otherwise, it would be virtually impossible for the applicants to obtain a warrant as they would not know exactly what kind of things they are looking for. Since the element of time is very crucial in criminal cases, the effort and time spent in researching on the details to be embodied in the warrant would render the purpose of the search nugatory. In the case under consideration, the NBI agents could not have been in a position to know before hand the exact caliber or make of the firearms

to be seized. Although the surveillance they conducted did disclose the presence of unlicensed firearms within the premises to be searched, they could not have known the particular type of weapons involved before seeing such weapons at close range, which was of course impossible at the time of the filing of the applications for subject search warrants. Verily, the failure to specify detailed descriptions in the warrants did not render the same general. Retired Justice Ricardo Franciscos book on Criminal Procedure has this useful insight: A description of the property to be seized need not be technically accurate nor necessarily precise; and its nature will necessarily vary according to whether the identity of the property, or its character, is the matter of concern. Further, the description is required to be specific only so far as the circumstances will ordinarily allow. x x x In People v. Rubio (57 Phil 384), the Court held that, ... But where, by the nature of the goods to be seized, their description must be rather general, it is not required that a technical description be given, for this would mean that no warrant could issue. It is indeed understandable that the agents of respondent Bureau have no way of knowing whether the guns they intend to seize are a Smith and Wesson or a Beretta. The surveillance conducted could not give the NBI agents a close view of the weapons being transported or brought to the premises to be searched. Thus, they could not be expected to know the detailed particulars of the objects to be seized. Consequently, the list submitted in the applications for subject search warrants should be adjudged in substantial compliance with the requirements of law. Petitioners contend that the searching agents grossly violated the procedure in enforcing the search warrants in question. The petition avers supposedly reprehensible acts perpetrated by the NBI agents. Among the irregularities alluded to, are: 1. The raiding team failed to perform the following before breaking into the premises: a. Properly identify themselves and showing necessary credentials including presentation of the Search Warrants; b. Furnishing of Search Warrants and allowing the

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occupants of the place to scrutinize the same; c. Giving ample time to the occupants to voluntarily allow the raiders entry into the place and to search the premises. 2. The team entered the premises by climbing the fence and by forcing open the main door of the house. 3. Once inside the house, the raiders herded the maids and the sixteen year-old son of defendant Kho into the dining room where they were confined for the duration of the raid. In the case of the son, he was gagged with a piece of cloth, his hands were tied behind his back and he was made to lie face down. 4. Defendant Khos hands were immediately tied behind his back (initially with a rag and later with the electric cord of a rechargeable lamp) and was restrained in a kneeling position with guns pointed at him throughout the duration of the search. It was only after the search was completed and the seized items stuffed in carton boxes (and a T-bag) that his hands were untied so he can sign the search warrants which he was forced to do. 5. All throughout the search, defendant Kho and his companions were kept in the dining room and continuously intimidated of being shot while the raiders search all the rooms all by themselves and without anybody seeing whatever they were doing. The question of whether there was abuse in the enforcement of the challanged search warrants is not within the scope of a Motion to Quash. In a Motion to Quash, what is assailed is the validity of the issuance of the warrant. The manner of serving the warrant and of effecting the search are not an issue to be resolved here. As aptly opined and ruled by the respondent Judge, petitioners have remedies under pertinent penal, civil and administrative laws for their problem at hand, which cannot be solved by their present motion to quash. According to petitioner Kho, the premises searched and objects seized during the search sued upon belong to the Economic Intelligence and Investigation Bureau (EIIB) of which he is an agent and therefore, the NBI agents involved had no authority to search the aforesaid premises and to confiscate the objects seized.

Whether the places searched and objects seized are government properties are questions of fact outside the scope of the petition under consideration. The Court does not see its way clear to rule on such issues lest it preempts the disposition of the cases filed by the respondent NBI against the herein petitioners. Considering that cases for Illegal Possession of Firearms and Explosives and Violation of Section 3 in relation to Section 14 of Republic Act No. 6539, otherwise known as the Anti-Carnapping Act of 1972, have been instituted against the petitioners, the petition for mandamus with preliminary and mandatory injunction to return all objects seized and to restrain respondent NBI from using the said objects as evidence, has become moot and academic. WHEREFORE, for want of merit and on the ground that it has become moot and academic, the petition at bar is hereby DISMISSED. No pronoucement as to costs. SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur. Xxxxxxxxx G.R. No. 150185 : May 27, 2004 TERESITA TANGHAL OKABE, Petitioner, v. HON. PEDRO DE LEON GUTIERREZ, in his capacity as Presiding Judge of RTC, Pasay City, Branch 119; PEOPLE OF THE PHILIPPINES; and CECILIA MARUYAMA, Respondents. DECISION CALLEJO, SR., J.:

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Before us is a petition for review on certiorari, under Rule 45 of the Rules of Court, as amended, that part of the Decision1 of the Court of Appeals in CA-G.R. SP No. 60732 dismissing her petition for certiorari under Rule 65 of the Rules of Court, as amended, for the nullification of the August 25 and 28, 2000 Orders of the respondent judge in Criminal Case No. 000749. The Antecedents Cecilia Maruyama executed a fifteen-page affidavit-complaint2 and filed the same with the Office of the City Prosecutor of Pasay City, on December 29, 1999, charging Lorna Tanghal and petitioner Teresita Tanghal Okabe, a.k.a. Shiela Okabe, with estafa. In her affidavit, Maruyama alleged, inter alia, that on December 11, 1998, she entrusted Y11,410,000 with the peso equivalent of P3,993,500 to the petitioner, who was engaged in the business of door-to-door delivery from Japan to the Philippines. It was alleged that the petitioner failed to deliver the money as agreed upon, and, at first, denied receiving the said amount but later returned only US$1,000 through Lorna Tanghal. During the preliminary investigation, the complainant, respondent Maruyama, submitted the affidavit of her witnesses, namely, Hermogena Santiago, Wilma Setsu and Marilette G. Izumiya and other documentary evidence. In her affidavit, Setsu alleged that the money which was entrusted to the petitioner for delivery to the Philippines belonged to her and her sister Annie Hashimoto, and their mother Hermogena SanchezQuicho, who joined respondent Maruyama in her complaint against petitioner Okabe and Tanghal. Respondent Maruyama, likewise, submitted a reply3 to the petitioners counter-affidavit. After the requisite preliminary investigation, 2nd Assistant City Prosecutor Joselito J. Vibandor came out with a resolution dated March 30, 2000, finding probable cause for estafa

against the petitioner.4 Attached to the resolution, which was submitted to the city prosecutor for approval, was the Information5 against the petitioner and Maruyamas affidavit-complaint. The city prosecutor approved the resolution and the Information dated March 30, 2000 attached thereto.6 On May 15, 2000, an Information against the petitioner was filed in the Regional Trial Court of Pasay City, docketed as Criminal Case No. 000749. The case was raffled to Branch 119 of the court presided by Judge Pedro de Leon Gutierrez.7 The accusatory portion of the Information reads: That on or about December 12, 1998 in Pasay City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused defrauded Cecilia Maruyama and Conchita Quicho, complainant herein, in the following manner, to wit: said accused received in trust from Cecilia Maruyama the amount of Japanese Yen 1141 (sic) with peso equivalent to P3,839,465.00 under obligation to deliver the money to Conchita Quicho at the NAIA International Airport, Pasay City, immediately upon accused arrival from Japan, but herein accused once in possession of the same, did, then and there willfully, unlawfully and feloniously misappropriate and convert to her own personal benefit the said amount, and despite demands accused failed and refused to do so, to the damage and prejudice of the complainants in the aforesaid amount. Contrary to law.8

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Appended to the Information was the affidavit-complaint of respondent Maruyama and the resolution of Investigating Prosecutor Vibandor. On May 19, 2000, the trial court issued a warrant for the arrest of the petitioner with a recommended bond of P40,000. On June 15, 2000, the petitioner posted a personal bail bond in the said amount, duly approved by Judge Demetrio B. Macapagal, the Presiding Judge of Branch 79 of the RTC of Quezon City, who forthwith recalled the said warrant.The approved personal bail bond of the petitioner was transmitted to the RTC of Pasig City on June 21, 2000. Upon her request, the petitioner was furnished with a certified copy of the Information, the resolution and the criminal complaint which formed part of the records of the said case. The petitioner left the Philippines for Japan on June 17, 2000 without the trial courts permission, and returned to the Philippines on June 28, 2000. She left the Philippines anew on July 1, 2000, and returned on July 12, 2000. On July 14, 2000, the trial court issued an Order setting the petitioners arraignment and pre-trial at 2:00 p.m. of July 16, 2000. On the same day, the private prosecutor filed an urgent ex parte motion for the issuance of the hold departure order, alleging as follows: 3.It has come to the knowledge of private complainant that there is an impending marriage within the Philippines of either the son or daughter of the above-named accused and that the above-named accusedwho has businesses in Japan, and is presently in Japanwill soon exit Japan and enter the Philippines to precisely attend said wedding; 4.Given [a] the bail was fixed at merely P40,000.00 and b] the considerable financial capability of the accused, it is a foregone conclusion that the above-named accused will, upon arrest, readily and immediately post bond, and leave for Japanthereby frustrating and rendering inutile the administration of criminal justice in our country. The speed with which accused Teresita Sheila Tanghal Okabe can post bond and leave for Japaneffectively evading arraignment and pleathus necessitates the immediate issuance of a Hold Departure Order even before her arrival here in the Philippines;9

The trial court issued an order on the same day, granting the motion of the private prosecutor for the issuance of a hold departure order and ordering the Commission on Immigration and Deportation (CID) to hold and prevent any attempt on the part of the petitioner to depart from the Philippines.10 For her part, the petitioner filed on July 17, 2000 a verified motion for judicial determination of probable cause and to defer proceedings/arraignment, alleging that the only documents appended to the Information submitted by the investigating prosecutor were respondent Maruyamas affidavit-complaint for estafa and the resolution of the investigating prosecutor; the affidavits of the witnesses of the complainant, the respondents counter-affidavit and the other evidence adduced by the parties were not attached thereto. The petitioner further alleged that the documents submitted by the investigating prosecutor were not enough on which the trial court could base a finding of probable cause for estafa against her. She further averred that conformably to the rulings of this Court in Lim v. Felix11 and Roberts, Jr. v. Court of Appeals,12 it behooved the investigating prosecutor to submit the following to the trial court to enable it to determine the presence or absence of probable cause: (a) copies of the affidavits of the witnesses of the complainant; (b) the counter-affidavit of Okabe and those of her witnesses; (c) the transcripts of stenographic notes taken during the preliminary investigation; and, (d) other documents presented during the said investigation. On July 19, 2000, the petitioner filed a Very Urgent Motion To Lift/Recall Hold Departure Order dated July 17, 2000 and/or allow her to regularly travel to Japan alleging, thus: 3.Accused is (sic) widow and the legitimate mother of three (3) children, two (2) of whom are still minors, namely: 3.1.Okabe, Jeffrey-18 years old born on 13 August 1981.

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3.2.Okabe, Masatoshi-14 years old and born on 16 October 1985, 3rd year High School student at Hoshikuki, Chiba City, Matsugaoka, High School, residing at Chiba City, Chuo-Ku, Yahagi-cho, 205, Telephone No. 043224-5804. 3.3.Okabe, Tomoki-13 years old and born on 13 March 1986, 2nd year High School student at Hoshikuki, Chiba City, Matsugaoka, High School, residing at Chiba City, Chuo-Ku, Yahagi-cho, 205, Telephone No. 043224-5804. 3.4.The accused has to attend the Parents Teachers Association (PTA) at the Hoshikuki High School where her two (2) minor sons aforesaid are presently enrolled and studying because Okabe, Masatoshis graduation will take place on 26 July 2000. 3.5.The two (2) minor children of the accused absolutely depend their support (basic necessities) for foods, clothings, medicines, rentals, schooling and all other expenses for their survival to their legitimate mother who is the accused herein. 3.6.The issuance of the hold departure order (HDO) will impair the inherent custodial rights of the accused as the legitimate mother over these two (2) minor children which is repugnant to law. 3.7.The issuance of the hold departure order (HDO) will unduly restrict the accused to her custodial rights and visitation over her aforesaid minor children who are permanently living in Japan. 3.8.The issuance of the hold departure order (HDO) will unduly deprived (sic) these minor children to their right to obtain education and survival. 4.Accuseds only source of income and livelihood is door-to-door delivery from Japan to the Philippines and vice versa which has been taking place for a very long period of time and in the process she has been constantly departing from the Philippines on a weekly basis and arriving in Japan on the same frequency, as evidenced by xerox copies of the pages of her Philippine Passports which are hereto attached as Annexes A, A-1, A-2 up

to A-30, respectively.To deprive her of this only source of her livelihood to which the aforesaid two (2) minor children are deriving their very survival in a foreign land will (sic) tantamount to oppression rather than prosecution and depriving the said minor sons of their right to live even before trial on the merits of this case that will (sic) tantamount to the destruction of the future of these minor children.13 The private prosecutor opposed the petitioners motions during the hearing on July 21, 2000 which was also the date set for her arraignment. The hearing of the motions as well as the arraignment was reset to 2:00 p.m. of July 26, 2000. On the said date, the petitioner filed a manifestation objecting to her arraignment prior to the resolution of her pending motions. She alleged that her arraignment for the crime charged should not be made a condition for the granting of her motion to recall the hold departure order issued against her. The arraignment of the petitioner was again reset to 2:00 p.m. of August 28, 2000, pending the resolution of her two motions. On August 25, 2000, the petitioner filed a motion for the postponement of her arraignment alleging that, in case the trial court ruled adversely thereon, she would refuse to enter a plea and seek relief from the appellate court. The court denied the petitioners motions on the following grounds: (a)Based on its personal examination and consideration of the Information, the affidavit-complaint of respondent Maruyama and the resolution of the investigating prosecutor duly approved by the city prosecutor, the court found probable cause for the petitioners arrest. Since the petitioners motion for a determination of probable cause was made after the court had already found probable cause and issued a warrant for the petitioners arrest, and after the latter filed a personal bail bond for her provisional liberty, such motion was a mere surplusage; (b)When the petitioner posted a personal bail bond for her provisional liberty, she thereby waived her right to question the courts finding of the existence of probable cause for her arrest and submitted herself to the jurisdiction of the court, more so when she filed the motion for the lifting of

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the hold departure order the court issued, and the motion to defer the proceedings and her arraignment; and (c)The hold departure order issued by the trial court was in accord with Supreme Court Circular No. 39-97 dated June 19, 1997, as well as the ruling of this Court in Manotoc, Jr. v. Court of Appeals.14 When the case was called for the petitioners arraignment at 2:00 p.m., on August 28, 2000, she refused to plead.15 Her counsel advised her, in open court, not to enter a plea and, with leave of court, left the courtroom. The court then entered a not guilty plea for the petitioner.16 It also issued an order, on the said date, setting the pre-trial and initial presentation of the evidence of the prosecution at 8:30 a.m. of September 20, 2000.17 The petitioner then filed with the Court of Appeals a petition for certiorari under Rule 65 of the Rules of Court with a plea for a writ of preliminary injunction. The case was docketed as CA-G.R. SP No. 60732. The petitioner ascribed the following errors to the trial court: I RESPONDENT COURT GRAVELY ERRED WHEN IT ISSUED WARRANT OF ARREST DESPITE OF (SIC) LACK OF PROBABLE CAUSE II RESPONDENT COURT HAS VIOLATED THE RIGHT OF THE PETITIONER TO DUE PROCESS

III RESPONDENT COURT HAS ALREADY PRE-JUDGED THE CONVICTION OF THE PETITIONER FOR ESTAFA IV RESPONDENT COURT HAS EXHIBITED ITS APPARENT PARTIALITY TOWARDS THE PROSECUTION AND AGAINST THE PETITIONER V RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC) THE MOTION FOR JUDICIAL DETERMINATION OF PROBABLE CAUSE PURSUANT TO THE DOCTRINE OF ROBERTS, JR. VI RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC) THE LIFTING/RECALL OF THE HDO AND/OR ALLOWING THE PETITIONER TO TRAVEL TO JAPAN REGULARLY FOR HUMANITARIAN CONSIDERATION VII RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT ISSUED THE QUESTIONED ORDERS18 On January 31, 2001, the CA rendered a Decision19 partially granting the petition in that the assailed order of the trial court denying the petitioners

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motion to lift/recall the hold departure order was set aside. However, the petitioners motion for reconsideration of the trial courts decision was denied and her petition for the nullification of the August 25, 2000 Order of the respondent judge was dismissed. The CA ruled that by posting bail and praying for reliefs from the trial court, the petitioner waived her right to assail the respondent judges finding of the existence of probable cause. The appellate court cited the ruling of this Court in Cojuangco, Jr. v. Sandiganbayan.20 Thus, the appellate court affirmed the assailed order of the RTC, based on the respondent judges personal examination of respondent Maruyamas affidavit-complaint, the resolution of the investigating prosecutor and the Information approved by the city prosecutor, a finding of probable cause was in order. However, the appellate court allowed the petitioner to travel to Japan under the following conditions: (1)That petitioner post a bond double the amount of her alleged monetary liability under the Information filed against her, as recommended by the Office of the Solicitor General; (2)That petitioner inform respondent Court of each and all of her travel itinerary prior to leaving the country; (3)That petitioner make periodic reports with respondent Court; (4)That petitioner furnish respondent Court with all the addresses of her possible place of residence, both here and in Japan; and (5)Such other reasonable conditions which respondent Court may deem appropriate under the circumstances.21 The appellate court did not resolve the issue of whether the trial court had prejudged the case and was partial to the prosecution. The decretal portion of the decision of the CA reads:

WHEREFORE, premises considered, the instant special civil action for certiorari is hereby PARTIALLY GRANTED insofar as the denial of petitioners Motion to Lift/Recall Hold Departure Order dated 14 July, 2000 and/or Allow the accused to Regularly Travel to Japan is concerned. In all other respect, the same is hereby DENIED. SO ORDERED.22 On March 6, 2001, the petitioner filed a motion for a partial reconsideration of the decision of the CA contending that the appellate court erred in applying the ruling of this court in Cojuangco, Jr. v. Court of Appeals23 instead of Section 26, Rule 114 of the Revised Rules on Criminal Procedure. The petitioner posited that the said rule, which took effect on December 1, 2000, before the court rendered its decision, had superseded the ruling of this Court in the Cojuangco case. However, the appellate court held that Section 26, Rule 114 of the Revised Rules on Criminal Procedure cannot be applied retroactively, because the petitioner had posted bail on June 15, 2000 before the Revised Rules on Criminal Procedure took effect. Hence, the instant petition for review on certiorari for the reversal of the decision and resolution of the CA and praying that after due proceedings, judgment be rendered in her favor, thus: WHEREFORE, it is respectfully prayed of this Honorable Supreme Court that after due proceedings, judgment be rendered in favor of the petitioner and against the respondents as follows: (a)GIVING DUE COURSE to the instant petition; (b)ORDERING the REVERSAL and PARTIALLY SETTING ASIDE of the Decision promulgated on 31 January 2001 (Annex A hereof) of the Honorable Court of Appeals in CA-G.R. SP No. 60732 as well as its Resolution promulgated on 27 September 2001 (Annex B hereof);

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(c)ORDERING the DISMISSAL of Crim. Case No. 00-0749 for lack of probable cause; (d)DECLARING the entire proceedings in Crim. Case No. 00-0749 as null and void; (e)ORDERING the private respondents to pay the petitioners the following amount: (i)at least P1,000,000.00 as moral damages; (ii)at least P1,000,000.00 as exemplary damages; (iii)at least P500,000.00 as attorneys fees and for other expenses of litigation. (f)ORDERING the private respondent to pay the costs of this suit. (g)Petitioner further prays for such other reliefs just and equitable under the premises.24 The petitioner asserts that the CA committed the following reversible errors: I THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT COMPLETELY DISREGARDED THE APPLICATION OF SECTION 26, RULE 114 OF THE REVISED RULES ON CRIMINAL PROCEDURE WHICH TOOK EFFECT ON 01 DECEMBER 2000 WHICH IS FAVORABLE TO THE PETITIONER/ACCUSED. II

THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN RULING THAT WHATEVER INFIRMITY THERE WAS IN THE ISSUANCE OF THE WARRANT OF ARREST, THE SAME WAS CURED WHEN PETITIONER VOLUNTARILY SUBMITTED TO THE RESPONDENT COURTS JURISDICTION WHEN SHE POSTED BAIL AND FILED MOTIONS SEEKING AFFIRMATIVE RELIEF SUCH AS MOTION TO LIFT/RECALL HOLD DEPARTURE ORDER AND TO ALLOW PETITIONER TO TRAVEL REGULARLY TO JAPAN (Last paragraph, Page 9 DECISION dated 31 January 2001). III THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT RELIED UPON THE RULING IN THE CASE OF COJUANGCO, JR. VS. SANDIGANBAYAN, [300 SCRA 367 (1998)] WHEN IN FACT SAID RULING IS NOW OBSOLETE AND NO LONGER APPLICABLE. IV THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN RULING THAT RESPONDENT COURT COMPLIED WITH THE CONSTITUTIONAL REQUIREMENTS ON THE ISSUANCE OF WARRANT OF ARREST WITHOUT PROBABLE CAUSE, WHEN THE RESPONDENT COURT MERELY RELIED ON [THE] (i) COMPLAINTAFFIDAVIT OF CECILIA MARUYAMA; (ii) RESOLUTION OF THE INVESTIGATING PROSECUTOR; AND (iii) CRIMINAL INFORMATION. V THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT FAILED TO RULE ON THE PARTIALITY OF THE RESPONDENT JUDGE IN HANDLING THE CASE BELOW WHICH IS VIOLATIVE OF THE PETITIONERS RIGHT TO DUE PROCESS. VI

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THE FILING OF CRIM. CASE NO. 4297 (MTC, ANGAT, BULACAN) FOR ESTAFA ENTITLED PEOPLE VS. SHEILA OKABE; CIVIL CASE NO. 331-M-98 (RTC, MALOLOS, BULACAN) FOR SUM OF MONEY WITH PRELIMINARY ATTACHMENT ENTITLED CONCHITA SANCHEZQUICHO VS. SHEILA TERESITA TANGHAL OKABE; AND CRIM. CASE NO. 00-07-19 (RTC, PASAY CITY, BRANCH 119) ENTITLED PEOPLE VS. TERESITA TANGHAL OKABE CONSTITUTE A VIOLATION OF THE RULE ON NON-FORUM SHOPPING.25 By way of comment, the Office of the Solicitor General refuted the petitioners assigned errors, contending as follows: I The Court of Appeals did not commit a reversible error in not applying Section 26, Rule 114 of the Revised Rules on Criminal Procedure. II The Court of Appeals did not commit a reversible error in ruling that the infirmity, if any, in the issuance by the respondent Judge of the warrant of arrest against petitioner was cured when petitioner voluntarily submitted to the trial courts jurisdiction when she posted bail and filed motions seeking for affirmative reliefs from the trial court, such as the motion to lift/recall Hold Departure Order (HDO) and to allow petitioner to travel regularly to Japan. III The Court of Appeals did not commit a reversible error in applying the ruling in the Cojuangco case. IV

The Court of Appeals did not commit a reversible error in finding that respondent Judge complied with the constitutional requirements on the issuance of a warrant of arrest. V The Court of Appeals did not commit a reversible error when it did not rule on the partiality of the respondent Judge in handling Criminal Case No. 000749. VI The Honorable Court of Appeals did not commit a reversible error when it did not rule on petitioners claim of forum shopping.26 The Court shall resolve the assigned errors simultaneously as they are interrelated. The petitioner asserts that the respondent judge could not have determined the existence of probable cause for her arrest solely on the resolution of the investigating prosecutor and the undated affidavitcomplaint of respondent Maruyama. She posits that the respondent judge should have ordered the investigating prosecutor to submit the affidavits of the witnesses of respondent Maruyama and the latters documentary evidence, as well as the counter-affidavit of the petitioner and the transcripts of the stenographic notes, if any, taken during the preliminary investigation. The petitioner adds that the respondent judge should have personally reviewed the said documents, conformably to the rulings of this Court in Lim v. Felix,27 Roberts, Jr. v. Court of Appeals28 and Ho v. People,29 before determining the presence or absence of probable cause. She posits that the respondent judge acted with grave abuse of discretion

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amounting to excess or lack of jurisdiction in denying her motion for a determination of probable cause, and the alternative motion for a dismissal of the case against her for lack of probable cause. The petitioner further asserts that the appellate court erred in affirming the ruling of the respondent judge that, by posting a personal bail bond for her provisional liability and by filing several motions for relief, she thereby voluntarily submitted herself to the jurisdiction of the trial court and waived her right to assail the infirmities that infected the trial courts issuance of the warrant for her arrest.She avers that the appellate courts reliance on the ruling of this Court in Cojuangco, Jr. v. Sandiganbayan30 is misplaced, and submits that the appellate court should have applied Section 26, Rule 114 of the Revised Rules of Court retroactively, as it rendered the ruling of this Court in the Cojuangco, Jr. case obsolete. The Office of the Solicitor General, on the other hand, asserts that the respondent judge did not commit any grave abuse of discretion when he found probable cause against the petitioner for estafa, and thereafter issued a warrant for her arrest. It argues that the respondent judge personally determined the existence of probable cause independently of the certification of the investigating prosecutor, and only after examining the Information, the resolution of the investigating prosecutor, as well as the affidavit-complaint of the private complainant.It asserts that such documents are sufficient on which to anchor a finding of probable cause. It insists that the appellate court correctly applied the ruling of this Court in the Cojuangco, Jr. v. Court of Appeals case, and that the respondent judge complied with both the requirements of the constitution and those set forth in the Rules of Court before issuing the said warrant.31 We agree with the contention of the petitioner that the appellate court erred in not applying Section 26, Rule 114 of the Revised Rules on Criminal Procedure, viz:

SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case. It bears stressing that Section 26, Rule 114 of the Revised Rules on Criminal Procedure is a new one, intended to modify previous rulings of this Court that an application for bail or the admission to bail by the accused shall be considered as a waiver of his right to assail the warrant issued for his arrest on the legalities or irregularities thereon.32 The new rule has reverted to the ruling of this Court in People v. Red.33 The new rule is curative in nature because precisely, it was designed to supply defects and curb evils in procedural rules. Hence, the rules governing curative statutes are applicable. Curative statutes are by their essence retroactive in application.34 Besides, procedural rules as a general rule operate retroactively, even without express provisions to that effect, to cases pending at the time of their effectivity, in other words to actions yet undetermined at the time of their effectivity.35 Before the appellate court rendered its decision on January 31, 2001, the Revised Rules on Criminal Procedure was already in effect. It behooved the appellate court to have applied the same in resolving the petitioners petition for certiorari and her motion for partial reconsideration. Moreover, considering the conduct of the petitioner after posting her personal bail bond, it cannot be argued that she waived her right to question the finding of probable cause and to assail the warrant of arrest

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issued against her by the respondent judge. There must be clear and convincing proof that the petitioner had an actual intention to relinquish her right to question the existence of probable cause.36 When the only proof of intention rests on what a party does, his act should be so manifestly consistent with, and indicative of, an intent to voluntarily and unequivocally relinquish the particular right that no other explanation of his conduct is possible.37 In this case, the records show that a warrant was issued by the respondent judge in Pasay City for the arrest of the petitioner, a resident of Guiguinto, Bulacan. When the petitioner learned of the issuance of the said warrant, she posted a personal bail bond to avert her arrest and secure her provisional liberty. Judge Demetrio B. Macapagal of the RTC of Quezon City approved the bond and issued an order recalling the warrant of arrest against the petitioner. Thus, the posting of a personal bail bond was a matter of imperative necessity to avert her incarceration; it should not be deemed as a waiver of her right to assail her arrest. So this Court ruled in People v. Red:38 The present defendants were arrested towards the end of January, 1929, on the Island and Province of Marinduque by order of the judge of the Court of First Instance of Lucena, Tayabas, at a time when there were no court sessions being held in Marinduque. In view of these circumstances and the number of the accused, it may properly be held that the furnishing of the bond was prompted by the sheer necessity of not remaining in detention, and in no way implied their waiver of any right, such as the summary examination of the case before their detention. That they had no intention of waiving this right is clear from their motion of January 23, 1929, the same day on which they furnished a bond, and the fact that they renewed this petition on February 23, 1929, praying for the stay of their arrest for lack of the summary examination; the first motion being denied by the court on January 24, 1929 (G.R. No. 33708, page 8), and the second remaining undecided, but with an order to have it presented in Boac, Marinduque.

Therefore, the defendants herein cannot be said to have waived the right granted to them by section 13, General Order No. 58, as amended by Act No. 3042.39 Moreover, the next day, or on June 16, 2000, the petitioner, through counsel, received certified true copies of the Information, the resolution of the investigating prosecutor, the affidavit-complaint of the private complainant, respondent Maruyama, and a certification from the branch clerk of court that only the Information, resolution and affidavit-complaint formed part of the entire records of the case. The next day, June 17, 2000, the petitioner, through counsel, filed a verified motion for judicial determination of probable cause and to defer the proceedings and her arraignment. All the foregoing are inconsistent with a waiver of her right to assail the validity of her arrest and to question the respondent judges determination of the existence of probable cause for her arrest. Neither can the petitioners filing of a motion for the lifting of the hold departure order and for leave to go to Japan be considered a waiver of her right to assail the validity of the arrest warrant issued by the respondent judge. It bears stressing that when the petitioner filed the motion to lift the hold departure order issued against her by the respondent judge, her motion for a determination of probable cause was still unresolved. She sought a lifting of the hold departure order on July 14, 2000 and filed a motion for leave to go to Japan, to give the respondent judge an opportunity to reconsider the said order, preparatory to assailing the same in the appellate court in case her motion was denied. The issue that now comes to fore is whether or not the respondent judge committed a grave abuse of his discretion amounting to excess or lack of jurisdiction in issuing his August 25, 2000 Order.By grave abuse of discretion is meant such patent and gross abuse of discretion as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reasons of passion or personal hostility.40 Hence, when the court has jurisdiction over the case, its questioned acts, even if its findings are not correct, would at

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most constitute errors of law and not abuse of discretion correctible by the extraordinary remedy of certiorari.41 We agree with the petitioner that before the RTC judge issues a warrant of arrest under Section 6, Rule 112 of the Rules of Court42 in relation to Section 2, Article III of the 1987 Constitution, the judge must make a personal determination of the existence or non-existence of probable cause for the arrest of the accused. The duty to make such determination is personal and exclusive to the issuing judge. He cannot abdicate his duty and rely on the certification of the investigating prosecutor that he had conducted a preliminary investigation in accordance with law and the Rules of Court, as amended, and found probable cause for the filing of the Information. Under Section 1, Rule 112 of the Rules on Criminal Procedure, the investigating prosecutor, in conducting a preliminary investigation of a case cognizable by the RTC, is tasked to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent therein is probably guilty thereof and should be held for trial. A preliminary investigation is for the purpose of securing the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense and anxiety of a public trial.43 If the investigating prosecutor finds probable cause for the filing of the Information against the respondent, he executes a certification at the bottom of the Information that from the evidence presented, there is a reasonable ground to believe that the offense charged has been committed and that the accused is probably guilty thereof. Such certification of the investigating prosecutor is, by itself, ineffective. It is not

binding on the trial court. Nor may the RTC rely on the said certification as basis for a finding of the existence of probable cause for the arrest of the accused.44 In contrast, the task of the presiding judge when the Information is filed with the court is first and foremost to determine the existence or nonexistence of probable cause for the arrest of the accused. Probable cause is meant such set of facts and circumstances which would lead a reasonably discreet and prudent man to believe that the offense charged in the Information or any offense included therein has been committed by the person sought to be arrested.45 In determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense.46 A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and that it was committed by the accused. Probable cause demands more than bare suspicion, it requires less than evidence which would justify conviction.47 The purpose of the mandate of the judge to first determine probable cause for the arrest of the accused is to insulate from the very start those falsely charged of crimes from the tribulations, expenses and anxiety of a public trial: It must be stressed, however, that in these exceptional cases, the Court took the extraordinary step of annulling findings of probable cause either to prevent the misuse of the strong arm of the law or to protect the orderly administration of justice. The constitutional duty of this Court in criminal litigations is not only to acquit the innocent after trial but to insulate, from the start, the innocent from unfounded charges. For the Court is aware of

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the strains of a criminal accusation and the stresses of litigation which should not be suffered by the clearly innocent. The filing of an unfounded criminal information in court exposes the innocent to severe distress especially when the crime is not bailable.Even an acquittal of the innocent will not fully bleach the dark and deep stains left by a baseless accusation for reputation once tarnished remains tarnished for a long length of time. The expense to establish innocence may also be prohibitive and can be more punishing especially to the poor and the powerless. Innocence ought to be enough and the business of this Court is to shield the innocent from senseless suits right from the start.48 In determining the existence or non-existence of probable cause for the arrest of the accused, the RTC judge may rely on the findings and conclusions in the resolution of the investigating prosecutor finding probable cause for the filing of the Information. After all, as the Court held in Webb v. De Leon,49 the judge just personally reviews the initial determination of the investigating prosecutor finding a probable cause to see if it is supported by substantial evidence.50 However, in determining the existence or non-existence of probable cause for the arrest of the accused, the judge should not rely solely on the said report.51 The judge should consider not only the report of the investigating prosecutor but also the affidavit/affidavits and the documentary evidence of the parties, the counter-affidavit of the accused and his witnesses, as well as the transcript of stenographic notes taken during the preliminary investigation, if any, submitted to the court by the investigating prosecutor upon the filing of the Information.52 Indeed, in Ho v. People,53 this Court held that:

Lastly, it is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutors recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties and functions, which in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or the report of the investigating officer.54 The rulings of this Court are now embedded in Section 8(a), Rule 112 of the Revised Rules on Criminal Procedure which provides that an Information or complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other supporting evidence of the resolution: SEC. 8. Records. (a) Records supporting the information or complaint. An information or complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other supporting evidence and the resolution on the case. If the judge is able to determine the existence or non-existence of probable cause on the basis of the records submitted by the investigating prosecutor, there would no longer be a need to order the elevation of the rest of the records of the case. However, if the judge finds the records and/or evidence submitted by the investigating prosecutor to be insufficient, he may order the dismissal of the case, or direct the

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investigating prosecutor either to submit more evidence or to submit the entire records of the preliminary investigation, to enable him to discharge his duty.55 The judge may even call the complainant and his witness to themselves answer the courts probing questions to determine the existence of probable cause.56 The rulings of this Court in Soliven v. Makasiar57 and Lim v. Felix58 are now embodied in Section 6, Rule 112 of the Revised Rules on Criminal Procedure, with modifications, viz: SEC. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information. In this case, the investigating prosecutor submitted to the respondent judge only his resolution after his preliminary investigation of the case and the affidavit-complaint of the private complainant, and failed to include the affidavits of the witnesses of the private complainant, and the latters reply affidavit, the counter-affidavit of the petitioner, as well as the evidence adduced by the private complainant as required by case law, and now by Section 8(a), Rule 112 of the Revised Rules on Criminal Procedure. The aforecited affidavits, more specifically the fax message of Lorna Tanghal

and the document signed by her covering the amount of US$1,000, are of vital importance, as they would enable the respondent judge to properly determine the existence or non-existence of probable cause. First. When respondent Maruyama handed the money to the petitioner, she did not require the latter to sign a document acknowledging receipt of the amount.The petitioner avers that it is incredible that Maruyama would entrust P3,993,500 in Japanese Yen to her without even requiring her to sign a receipt therefor, especially since respondent Maruyama was not even the owner of the money; Second. The affidavit of Hermogena Santiago, a witness of the respondent, is unreliable, because it is based on information relayed to her by Lorna Tanghal that she (Tanghal) saw the petitioner carrying a Louis Vuitton bag while on board a Mitsubishi L300 van with the petitioner. It appears that Tanghal failed to submit any counter-affidavit to the investigating prosecutor; Third. The affidavit of Marilette G. Izumiya, another witness of the respondent, is also unreliable, as it was based on information relayed to her by Thelma Barbiran, who used to work for the petitioner as a housemaid, that she (Barbiran) had in her possession a fax message from Lorna Tanghal, implicating the petitioner in the crime charged. Barbiran did not execute any affidavit; Fourth. There is no indication in the resolution of the investigating prosecutor that the petitioner received the fax message of Lorna Tanghal; Fifth. The private complainant claims that the petitioner tried to reimburse the P3,993,500 by remitting US$1,000 to her. However, the latter admitted in her affidavit-complaint that the document evidencing the remittance was signed by Lorna Tanghal, not by the petitioner. The petitioner claimed that Lorna Tanghal had to remit US$1,000 to respondent Maruyama because the latter made it appear to Tanghal that the police authorities were about to arrest the petitioner, and Tanghal was impelled to give the amount to respondent Maruyama to avert her arrest and incarceration;

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Sixth. In her counter-affidavit, the petitioner alleged that respondent Maruyama had no case against her because the crime charged in the latters affidavit-complaint was the same as that filed against her in the Metropolitan Trial Court of Bulacan, which was withdrawn by the complainant herself; Seventh. The investigating prosecutor stated in his resolution that the private complainant established the element of deceit. However, the crime charged against the petitioner as alleged in the Information is estafa with abuse of confidence. In sum, then, we find and so declare that the respondent judge committed a grave abuse of his discretion amounting to excess or lack of jurisdiction in finding probable cause for the petitioners arrest in the absence of copies of the affidavits of the witnesses of the private complainant and her reply affidavit, the counter-affidavit of the petitioner, and the evidence adduced during the preliminary investigation before the investigating prosecutor. In view of the foregoing disquisitions, there is no more need to resolve the other issues raised by the petitioner. IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed decision of the Court of Appeals is REVERSED and SET ASIDE. The assailed Orders dated August 25 and 28, 2000 and the Warrant of Arrest issued by the respondent judge in Criminal Case No. 00-0749 are SET ASIDE. The records are REMANDED to the Regional Trial Court of Pasay City, Branch 119. The respondent judge is hereby DIRECTED to determine the existence or non-existence of probable cause for the arrest of the petitioner based on the complete records, as required under Section 8(a), Rule 112 of the Revised Rules on Criminal Procedure. SO ORDERED. Quisumbing, (Acting Chairman), Austria-Martinez, andTinga, JJ., concur. Puno, (Chairman), J., on official leave.

Xxx

[G.R. No. 129651. October 20, 2000]

FRANK UY and UNIFISH PACKING CORPORATION, petitioners, vs. BUREAU OF INTERNAL REVENUE and HON. MERCEDES GOZO-DADOLE, respondents. DECISION KAPUNAN, J.:

Petitioners assail the validity of the warrants issued for the search of the premises of the Unifish Packing Corporation, and pray for the return of the items seized by virtue thereof. On 30 September 1993, a certain Rodrigo Abos reported to the Bureau of Internal Revenue (BIR) that petitioners Unifish Packing Corporation and Uy Chin Ho alias Frank Uy were engaged in activities constituting violations of the National Internal Revenue Code. Abos, who claimed to be a former employee of Unifish, executed an Affidaviti[1] stating:
1. He has personal knowledge that UNIFISH PACKING CORPORATION (hereinafter referred to as UNIFISH), a canning 43

factory located at Hernan Cortes Street, under the active management of UY CHIN HO alias Frank Uy [,] is selling by the thousands of [sic] cartons of canned sardines without issuing receipt. This is in violation of Sections 253 and 263 of the Internal Revenue Code. 2. This grand scale tax fraud is perpetrated through the following scheme: (1)Uy Chin Ho a director of UNIFISH buys in bulk from the company; (2)Being a director, Uy Chin Ho has a lot of clout in the distribution of the canned sardines processed by UNIFISH; (3)Uy Chin Ho dictates the value of canned sardines that he orders and buys from UNIFISH without any receipt of his purchases; (4)The moment he has the quantity he wants, UNIFISH through Uy Chin Ho delivers to the different supermarkets such as White Gold, Gaisano, etc.; (5)Payments made by these tax evading establishments are made by checks drawn payable to cash and delivered to Uy Chin Ho; These payments are also not receipted (sic); (6)Uy Chin Ho will then pay UNIFISH for the quantity of sardines he had withdrawn from the corporation; 3. Another fraudulent practice perpetrated by UNIFISH through Uy Chin Hos direction is the sale of imported oil locally to different customers. This is a case of smuggling in the sense that UNIFISH, being an export company registered with the Board of Investments,

is enjoying certain exemptions in their importation of oil as one of the raw materials in its processing of canned tuna for export. These tax exemptions are granted by the government on the condition that the oil is to be used only in the processing of tuna for export and that it is not to be sold unprocessed as is to local customers. 4. Another fraudulent practice involves the sales of unused cans; UNIFISH also enjoys tax exemptions in its purchases of tin cans subject to the condition that these are to be used as containers for its processed tuna for export. These cans are never intended to be sold locally to other food processing companies. 5. Prior to 1990, that is from 1980 to 1990, the factory of the UNIFISH PACKING CORPORATION was then run by the PREMIER INDUSTRIAL & DEVELOPMENT CORPORATION (hereinafter referred to as PREMIER) [,] which corporation was being controlled by the same majority stockholders as those now running and controlling UNIFISH; [a]t that time, PREMIER was also committing the same fraudulent acts as what is being perpetrated by UNIFISH at present. 6. The records containing entries of actual volume of production and sales, of both UNIFISH AND PREMIER, are found in the office of the corporation at its factory site at H. Cortes Street, Mandaue City. The particular place or spot where these records [official receipts, sales invoices, delivery receipts, sales records or sales books, stock cards, accounting records (such as ledgers, journals, cash receipts books, and check disbursements books)] are kept and may be found is best described in the herein attached sketch of the arrangement of the offices furniture and fixture of the corporation which is made an integral part hereof and marked as Annex A, 7. He is executing this affidavit to attest under oath the veracity of the foregoing allegations and he is reserving his right to claim for reward under the provisions of Republic Act No. 2338. 44

On 1 October 1993, Nestor N. Labaria, Assistant Chief of the Special Investigation Branch of the BIR, applied for search warrants from Branch 28 of the Regional Trial Court of Cebu. The application sought permission to search the premises of Unifish. After hearing the depositions of Labaria and Abos, Judge Mercedes Gozo-Dadole issued the disputed search warrants. The firstii[2] is docketed as SEARCH WARRANT NO. 93-10-79 FOR: VIOLATION OF SECTION 253 ("Search Warrant A-1"), and consists of two pages. A verbatim reproduction of Search Warrant A-1 appears below:
REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT OF CEBU 7th Judicial Region Branch 28 Mandaue City THE PEOPLE OF THE PHILIPPINES, Plaintiff, - versus NO. 93-10-79 SEC. 253 UY CHIN HO alias FRANK UY, Unifish Packing Corporation Hernan Cortes St., Cebu City x-------------------------/ (with sketch) SEARCH WARRANT TO ANY PEACE OFFICER: SEARCH WARRANT

G R E E T I N G S: It appearing to the satisfaction of the undersigned, after examination underoath (sic), Nestor N. Labaria, Asst. Chief, Special Investigation Branch, BIR and witness Rodrigo Abos that there is a (sic) probable cause to believe that the crime of violation of Section 253 - attempt to evade or defeat the tax has been committed and there is good and sufficient reason to believe that Uy Chin Ho c/o Unifish Packing Corporation, Hernan Cortes St., Mandaue City has in his possession, care and control, the following: 1. Multiple sets of Books of Accounts; Ledgers, Journals, Columnar Books, Cash Register Books, Sales Books or Records; Provisional & Official Receipts;

2. Production Record Books/Inventory Lists [,] Stock Cards; 3. Unregistered Delivery Receipts; 4. Unregistered Purchase & Sales Invoices; 5. Sales Records, Job Order; 6. Corporate Financial Records; and 7. Bank Statements/Cancelled Checks You are hereby commanded to make an immediate search at any time of day or night of said premises and its immediate vicinity and to forthwith seize and take possession of the articles abovementioned and other properties relative to such violation and bring said properties to the undersigned to be dealt with as the law directs. WITNESS MY HAND this 1st day of October, 1993. (sgd.) MERCEDES 45

FOR: VIOLATION OF

GOZO-DADOLE Judge

The second warrantiii[3]is similarly docketed as SEARCH WARRANT 93-10-79 FOR: VIOLATION OF SEC. 253 ("Search Warrant A-2"). Search Warrant A-2, reproduced below, is almost identical in content to Search Warrant A-1, save for the portions indicated in bold print. It consisted of only one page.
REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT OF CEBU 7th Judicial Region Branch 28 Mandaue City THE PEOPLE OF THE PHILIPPINES, Plaintiff, - versus NO. 93-10-79 FOR: VIOLATION OF SEC. 253 UY CHIN HO alias FRANK UY, and Unifish Packing Corporation Hernan Cortes St., Mandaue City x-------------------------/ (with sketch) SEARCH WARRANT TO ANY PEACE OFFICER: G R E E T I N G S: It appearing to the satisfaction of the undersigned, after examination underoath [sic], Nestor N. Labaria, Asst. Chief, Special SEARCH WARRANT

Investigation Branch, BIR and witness Rodrigo Abos that there is a [sic] probable cause to believe that the crime of violation of Section 253 - attempt to evade or defeat the tax has been committed and there is good and sufficient reason to believe that Uy Chin Ho alias Frank Uy and Unifish Packing Corporation, Hernan Cortes St., Mandaue City has in his possession, care and control, the following: 1. Multiple sets of Books of Accounts; Ledgers, Journals, Columnar Books, Cash Register Books, Sales Books or Records; Provisional & Official Receipts;

2. Production Record Books/Inventory Lists [,] Stock Cards; 3. Unregistered Delivery Receipts; 4. Unregistered Purchase & Sales Invoices; 5. Sales Records, Job Order; 6. Corporate Financial Records; and 7. Bank Statements/Cancelled Checks You are hereby commanded to make an immediate search at any time of day or night of said premises and its immediate vicinity and to forthwith seize and take possession of the articles abovementioned and other properties relative to such violation and bring said properties to the undersigned to be dealt with as the law directs. WITNESS MY HAND this 1st day of October, 1993. (sgd.) MERCEDES GOZO-DADOLE Judge

Judge Gozo-Dadole issued a third warrant,iv[4] which was

46

docketed as SEARCH WARRANT 93-10-80 FOR: VIOLATION OF SEC. 238 in relation to SEC. 263 (hereinafter, "Search Warrant B"). Except for the docket number and the designation of the crime in the body of the warrant (Section 238 in relation to Sec. 263 - non-issuance of sales invoice and use and possession of unregistered delivery receipts and/or sales invoices), Search Warrant B is a verbatim reproduction of Search Warrant A-2. On the strength of these warrants, agents of the BIR, accompanied by members of the Philippine National Police, on 2 October 1993, searched the premises of the Unifish Packing Corporation. They seized, among other things, the records and documents of petitioner corporation. A return of said search was duly made by Nestor Labaria with the RTC of Cebu , Branch 28. On 8 February 1995, the BIR filed against petitioners a case before the Department of Justice. The records, however, do not reveal the nature of this case. On 31 March 1995, petitioners filed motions to quash the subject search warrants with Branch 28 of the Cebu RTC. The RTC, however, denied petitioners' motions to quash as well as their subsequent motion for reconsideration, prompting petitioners to file a petition for certiorari with the Court of Appeals (CA). The CA dismissed their petition, holding that petitioners failed to comply with Section 2(a), Rule 6 of the Revised Internal Rules of the Court of Appeals (RIRCA), which states:
a. What Should be Filed. - The petition shall be filed in seven (7) legible copies and a copy thereof shall be served on each of the respondents, and must be accompanied by a certified true copy of

the decision or order complained of and true copies of the pleadings and other pertinent documents and papers. (As amended by S.Ct. Res., dated November 24, 1992).

The CA found that petitioners did not submit certified true copies of (1) the Motions to Quash, (2) the Motion for Reconsideration, and (3) the Affidavit of Rodrigo Abos. The CA also held that certiorari was not the proper remedy to question the resolution denying the motion to quash.
In this case now before us, the available remedies to the petitioners, assuming that the Department of Justice will eventually file the case, are: a petition for reinvestigation; the right to post bail; a Motion to Quash the Information; and in case of denial, an appeal, after judgment on the merits, or after the case shall have been tried. This brings us to the case of Lai vs. Intermediate 220 SCRA 149 and the pronouncement, thus: Criminal Procedure: Certiorari: Certiorari should not be allowed where petitioner has other remedies available. -Anent the remedy resorted to by petitioners (referring to the petition for certiorari) from the Regional Trial Court of Negros Oriental presided by Judge Diez, the same should not have been granted. Petitioners were not without plain, speedy and adequate remedies in the ordinary course of law against Judge Lomeda's order for their arrest. These remedies are as enumerated by respondent appellate court in its decision: "1. they can post bail for their provisional release; 2. They can ask the Provincial Fiscal for a reinvestigation of the charge against them. If unsatisfied with the fiscal's resolution they can ask for a review by the Minister of Justice; (Sec. 1(), RA 5180 as amended by P.D. 911); 3. if their petition for review does not prosper, they can file a motion to quash the information 47

in the trial court. (Rule 117, Rules of Court). 4. If the motion is denied, they can appeal the judgment of the court after the case shall have been tried on the merits. x x x Where motion to quash is denied, remedy is not certiorari, but to go to trial.-- Moreover, in the case of Acharon vs. Purisima, this Court held that when a motion to quash a criminal case is denied, the remedy is not certiorari but to go to trial without prejudice to reiterating the special defenses involved in said Motion. In the event that an adverse decision is rendered after trial on the merits, an appeal therefrom should be the next legal step.

reveals that petitioners first submitted the same in their Reply, after respondents, in their Comment, pointed out petitioners failure to attach them to the Petition. Nevertheless, the CA should not have dismissed the petition on this ground although, to its credit, it did touch upon the merits of the case. First, it appears that the case could have been decided without these pleadings and documents. Second, even if the CA deemed them essential to the resolution of the case, it could have asked for the records from the RTC. Third, in a similar case,vi[6] we held that the submission of a document together with the motion for reconsideration constitutes substantial compliance with Section 3, Rule 46 of the Rules of Court, requiring the submission of a certified true copy of material portions of the record as are referred to [in the petition], and other documents relevant or pertinent thereto along with the petition. So should it be in this case, especially considering that it involves an alleged violation of a constitutionally guaranteed right. The rules of procedure are not to be applied in a very rigid, technical sense; rules of procedure are used only to help secure substantial justice. If a technical and rigid enforcement of the rules is made, their aim could be defeated.vii[7] The CA likewise erred in holding that petitioners cannot avail of certiorari to question the resolution denying their motions to quash the subject search warrants. We note that the case of Lai vs. Intermediate, cited by the appellate court as authority for its ruling does not appear in 220 SCRA 149. The excerpt of the syllabus quoted by the court, as observed by petitioners,viii[8] appears to have been taken from the case of Yap vs. Intermediate Appellate Court, 220 SCRA 245 (1993). Yap, however, is inapplicable since that case involved a
48

xxx
In this case now before Us, there is no pretention [sic] that the Court issued the Search Warrants without jurisdiction. On the contrary, it had jurisdiction. The argument therefore that the Court committed an error in not describing the persons or things to be searched; that the Search Warrants did not describe with particularity the things to be seized/taken; the absence of probable cause; and for having allegedly condoned the discriminating manner in which the properties were taken, to us, are merely errors in the Court's finding, certainly not correctible by certiorari, but instead thru an appeal.v[5]

In any event, the CA ruled, no grave abuse of discretion amounting to lack of jurisdiction was committed by the RTC in the issuance of the warrants. As petitioners' motion for reconsideration proved futile, petitioners filed the instant petition for review. Petitioners claim that they did submit to the CA certified true copies of the pleadings and documents listed above along with their Petition, as well as in their Motion for Reconsideration. An examination of the CA Rollo, however,

motion to quash a complaint for qualified theft, not a motion to quash a search warrant. The applicable case is Marcelo vs. De Guzman,ix[9] where we held that the issuing judges disregard of the requirements for the issuance of a search warrant constitutes grave abuse of discretion, which may be remedied by certiorari:
Expressly announced in Section 1, Rule 65 of the Rules of Court is the general rule that certiorari is available where a tribunal or officer exercising judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law. In the light of the findings of the lower court, herein above quoted, it is indisputable that Judge de Guzman gravely abused his discretion in issuing the said search warrant. Indeed, he acted whimsically and capriciously when he ignored the explicit mandate of Section 3, Rule 126 of the Rules of Court that a search warrant shall not issue but upon probable cause in connection with one specific offense to be determined by the municipal or city judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized; and that no search warrant shall issue for more than one specific offense. The utter disregard by Judge de Guzman of the requirements laid down by the said rule renders the warrant in question absolutely null and void. It has been held that where the order complained of is a patent nullity, a petition for certiorari and mandamus may properly be entertained despite the existence of the remedy of appeal. Moreover, an appeal from the order of Judge de Guzman would neither be an adequate nor speedy remedy to relieve appellee of the injurious effects of the warrant. The seizure of her

personal property had resulted in the total paralization of the articles and documents which had been improperly seized. Where the remedy of appeal cannot afford an adequate and expeditious relief, certiorari can be allowed as a mode of redress to prevent irreparable damage and injury to a party.

This Court had occasion to reiterate the above pronouncement in Silva vs. Presiding Judge, RTC of Negros Oriental, Br. XXXIII,x[10] which also involved a special civil action for certiorari:xi[11]
Thus, in issuing a search warrant, the judge must strictly comply with the constitutional requirement that he must determine the existence of probable cause by examining the applicant and his witnesses in the form of searching questions and answers. His failure to comply with this requirement constitutes grave abuse of discretion. As declared in Marcelo vs. De Guzman, G.R. No. L29077, June 29, 1982, 114 SCRA 657, the capricious disregard by the judge in not complying with the requirements before issuance of search warrants constitutes grave abuse of discretion.

In this case, petitioners alleged in their petition before the CA that the issuing judge violated the pertinent provisions of the Constitution and the Rules of Court in issuing the disputed search warrants, which, if true, would have constituted grave abuse of discretion. Petitioners also alleged that the enforcers of the warrants seized almost all the records and documents of the corporation thus resulting in the paralysis of its business. Appeal, therefore, would not be an adequate remedy that would afford petitioners expeditious relief. We now proceed to the merits of the case. Section 2, Article III of the Constitution guarantees the right of the people against unreasonable searches and seizures:
49

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

(4)the warrant issued must particularly describe the place to be searched and persons or things to be seized.xii[12]

In relation to the above provision, Rule 126 of the Rules of Court provides:
SEC. 3. Requisite for issuing search warrant. - A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized. SEC. 4. Examination of complainant; record. - The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and any witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted.

The absence of any of these requisites will cause the downright nullification of the search warrants.xiii[13] The proceedings upon search warrants must be absolutely legal, for there is not a description of process known to the law, the execution of which is more distressing to the citizen. Perhaps there is none which excites such intense feeling in consequence of its humiliating and degrading effect. The warrants will always be construed strictly without, however, going the full length of requiring technical accuracy. No presumptions of regularity are to be invoked in aid of the process when an officer undertakes to justify under it.xiv[14] Petitioners contend that there are several defects in the subject warrants that command their nullification. They point out inconsistencies in the description of the place to be searched in Search Warrant A-1, as well as inconsistencies in the names of the persons against whom Search Warrants A-1 and A-2 were issued. That two search warrants (Search Warrants A-1 and A-2) were issued for the same crime, for the same place, at a single occasion is cited as another irregularity. Petitioners also dispute the existence of probable cause that would justify the issuance of the warrants. Finally, they claim that the things to be seized were not described with particularity. These defects, according to petitioners, render the objects seized inadmissible in evidence.xv[15] Inconsistencies in the description of the place to be searched Petitioners observe that the caption of Search Warrant A1 indicates the address of Uy Chin Ho alias Frank Uy as
50

A search warrant must conform strictly to the requirements of the foregoing constitutional and statutory provisions. These requirements, in outline form, are:
(1)the warrant must be issued upon probable cause; (2)the probable cause must be determined by the judge himself and not by the applicant or any other person; (3)in the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; and

Hernan Cortes St., Cebu City while the body of the same warrant states the address as Hernan Cortes St., Mandaue City. Parenthetically, Search Warrants A-2 and B consistently state the address of petitioner as Hernan Cortes St., Mandaue City. The Constitution requires, for the validity of a search warrant, that there be a particular description of the place to be searched and the persons of things to be seized.xvi[16] The rule is that a description of a place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intendedxvii[17]and distinguish it from other places in the community.xviii[18] Any designation or description known to the locality that points out the place to the exclusion of all others, and on inquiry leads the officers unerringly to it, satisfies the constitutional requirement.xix[19] Thus, in Castro vs. Pabalan,xx[20] where the search warrant mistakenly identified the residence of the petitioners therein as Barrio Padasil instead of the adjoining Barrio Maria Cristina, this Court "admitted that the deficiency in the writ is not of sufficient gravity to call for its invalidation." In this case, it was not shown that a street similarly named Hernan Cortes could be found in Cebu City. Nor was it established that the enforcing officers had any difficulty in locating the premises of petitioner corporation. That Search Warrant A-1, therefore, inconsistently identified the city where the premises to be searched is not a defect that would spell the warrants invalidation in this case. Inconsistencies in the description of the persons named in the two warrants Petitioners also find fault in the description of the names

of the persons in Search Warrants A-1 and A-2. Search Warrant A-1 was issued solely against Uy Chin Ho alias Frank Uy. Search Warrant A-2, on the other hand, was directed against UY CHIN HO alias FRANK UY, and Unifish Packing Corporation. These discrepancies are hardly relevant. In Miller v. Sigler,xxi[21] it was held that the Fourth Amendment of the United States Constitution, from which Section 2, Article III of our own Constitution is historically derived, does not require the warrant to name the person who occupies the described premises. Where the search warrant is issued for the search of specifically described premises only and not for the search of a person, the failure to name the owner or occupant of such property in the affidavit and search warrant does not invalidate the warrant; and where the name of the owner of the premises sought to be searched is incorrectly inserted in the search warrant, it is not a fatal defect if the legal description of the premises to be searched is otherwise correct so that no discretion is left to the officer making the search as to the place to be searched.xxii[22] Since, in the case at bar, the warrant was issued not for search of the persons owning or occupying the premises, but only a search of the premises occupied by them, the search could not be declared unlawful or in violation of the constitutional rights of the owner or occupants of the premises, because of inconsistencies in stating their names.xxiii
[23]

Two warrants issued at one time for one crime and one place In any event, Search Warrant A-1 should be deemed superseded by Search Warrant A-2.
51

Two warrants, Search Warrants A-1 and A-2, were actually issued by the trial court for the same crime (violation of SEC. 253 of the National Internal Revenue Code). It appears, however, that Search Warrant A-2 was issued merely to correct the inconsistencies in the address in Search Warrant A-1, as well as to include Unifish Packing Corporation as a party against whom the warrant was issued. Search Warrant A-2 was evidently an attempt by the issuing judge to be more precise in the names of the persons against whom the warrant was issued and in the description of the place to be searched. Indeed, it would be absurd for the judge to issue on a single occasion two warrants authorizing the search of a single place for a single offense. Inasmuch as the apparent intent in issuing Search Warrant A-2 was to supersede Search Warrant A-1, the latter should be deemed revoked by the former. The allege d absen ce of proba ble cause Petitioners claim there was no probable cause for Judge Gozo-Dadole to issue the subject search warrants. Probable cause is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched.xxiv[24]

In the determination of probable cause, the Constitution and the Rules of Court require an examination of the witnesses under oath. The examination must be probing and exhaustive, not merely routine or pro forma. The examining magistrate must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application.xxv[25] Asking of leading questions to the deponent in an application for search warrant, and conducting of examination in a general manner, would not satisfy the requirements for issuance of a valid search warrant.xxvi[26] The witnesses, in turn, must testify under oath to facts of their own personal knowledge. The oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause.xxvii[27] Search warrants are not issued on loose, vague or doubtful basis of fact, nor on mere suspicion or belief.xxviii[28] It may be recalled that before issuing the warrants, the judge deposed two witnesses, namely, Nestor Labaria of the BIR, and Rodrigo Abos, who claimed to be an old employee of Unifish. Petitioners claim that the testimonies of Labaria and Abos are hearsay. We agree with this contention, but only as to the testimony of Labaria, who stated during the examination:
Q. Do you know of a certain Uy Chin Ho alias Frank Uy? A. No. Q. Do you know his establishment known as Unifish Packing Corporation? 52

A.

I have only heard of that thru the affidavit of our informer, Mr. Abos.

August of 1993. Q A Q A Q Where is this Unifish Packing Corporation located? Hernan Cortes St. What is it being engaged of? It is engaged in canning of fish. You have executed an affidavit here to the effect that it seems that in his business dealings that he is actually doing something that perpetrated tax evasion. Is that correct? Yes. How is it done? As an officer, he is an active member of the corporation who is at the same time making his authority as appointing himself as the distributor of the company's products. He sells these products thru supermarkets in Visayas and Mindanao, in fact, the whole Philippines. He makes it appear that it is the company which is selling when actually it is him selling the goods and he does not issue any invoices. Since he does not issue any invoices, how is it done? Thru delivery receipts. Is the delivery receipt official? No. It is unregistered. For how long has this been going on? As far as I know, it is still in 1986 since we started producing the sardines. When was the last time that you observed that that is what he is doing? 53

Q. Why are you applying for search warrant in the premises of Unifish Packing Corporation? A. Because of that information we received that they are using only delivery receipts instead of the legal sales invoices. It is highly indicative of fraud. From our informer, establishment.xxix[29] the former employee of that

Q. From where did you get that information? A.

A Q A

The above portion of the transcript shows that Labarias knowledge of the alleged illegal activities of petitioners was acquired not through his own perception but was merely supplied by Abos. Therefore, the deposition of Labaria, which is based on hearsay, standing alone, cannot justify the issuance of the search warrants.xxx[30] The application for the warrants, however, is not based solely on Labarias deposition but is supported by that of Abos, whose knowledge of petitioners alleged illegal practices was apparently obtained during his employment with Unifish. In his deposition, Abos detailed the schemes employed by Frank Uy and Unifish to evade the payment of taxes, and described the place where the documents supposedly evidencing these schemes were located:
Q A Q A Do you know Frank Uy? Yes. Why do you know him? Because I were (sic) an employee of his from 1980 until

Q A Q A Q A Q

A Q A

August, 1993, last month. How did you happen to know about this last month? Because he delivered to certain supermarkets and the payments of that supermarket did not go directly to the company. It went to him and he is the one who paid the company for the goods that he sold. Can you tell this Court the name of that certain supermarkets? White Gold and Gaisano. How did you know this fact? As a manager of the company I have access to all the records of that company for the last three years. I was the Operating Chief. Until now? No. I was separated already. When? August, 1993. How does he do this manipulation? He sells the goods to the supermarkets afterwhich the company, Unifish will deliver to his customers, then his customers will pay directly to him and in turn, he pays to the company. And these transactions, were they reflected in their books of account or ledger or whatever? It is written but it is supposed to be a secret transaction. It is not for the public, not for the BIR but it is only for the purpose of keeping the transactions between the company A Q A Q A Q A Q A Q

and him. It is not made to be shown to the BIR. In that books of account, is it reflected that they have made some deliveries to certain supermarkets? Yes. For the consumption of the BIR what are the papers that they show? It is the private accounting firm that prepares everything. Based on what? Based on some fictitious records just as they wish to declare. In your affidavit you stated that there are sales invoices, official receipts, delivery receipts, sales records, etc. These documents are records that you have stated, in your affidavit, which are only for the consumption of the company? Yes, not for the BIR. Where are they kept now? They are kept on the table which I have drawn in the sketch. This is the bird's eyeview (sic) of the whole office. When you enter thru the door this Gina Tan is the one recording all the confidential transactions of the company. In this table you can find all the ledgers and notebooks. This sketch is a blow-up of this portion, Exh. "A"? Yes. Exh. "B" is the blow-up of Exh. "A" inside the office. In this blow-up there are four personnel plus one new personnel. Gina Tan collects all the records from this girl and this girl makes the statements. This first girl delivers 54

Q A Q A

Q A Q A Q A

Q A

Q A

the receipts. The second girl prepares the bill of lading. The third girl keeps the inventory of all the stocks. This sketch here is the bodega where the records are kept. The records from these people are stored in this place which is marked as "C". Q So what you want to impress on that now is that only current records are kept by Gina because according to you the whole records are already placed in the bodega? Yes. But how can you enter the bodega? Here, from the main entrance there is a door which will lead to this part here. If you go straight there is a bodega there and there is also a guard from this exit right after opening the door. The problem is that, when actually in August have you seen the current records kept by Gina? I cannot exactly recall but I have the xerox copies of the records. Where are they now? They are in my possession (witness handling [sic] to the Court a bunch of records). The transactions that are reflected in these xerox copies that you have given me, especially this one which seems to be pages of a ledger, they show that these are for the months of January, February, March, April and May. Are these transactions reflected in these xerox copies which appear in the ledger being shown to the BIR? As far as I know, it did not appear.

Q A Q A Q A

What about this one which says Columnar Book Cash Receipt for the month of January, what does it show? It shows that Frank Uy is the one purchasing from the company and these are his customers. Do these entries appear in the columnar books which are the basis for the report to the BIR? As far as I know, it does not reflect. What are these xerox copies of checks? I think we cannot trace it up. These ones are the memos received by Unifish for payment of sardines. This is the statement of the company given to Uy Chin Ho for collection. It is also stated in your affidavit that the company imported soya oil. How is it done? The company imports soya oil to be used as a component in the processing of canned tuna for export. The company enjoys certain BOI privilege and so it is tax free. As far as I know, they profit more to dispose the product locally. Whatever excess of this soya oil are sold to another company. Is that fact reflected in the xerox copies? No. I have the actual delivery receipt. In other words, the company imports soya oil supposedly to be used as a raw material but instead they are selling it locally? Yes. ([W]itness showing DR No. 3053 dated November 13, 1991.) This delivery receipt was the delivery receipt to Celebes Canning Corp. of the 90 grams soya oil. 55

A Q A

Q A

Q A Q A Q

Q A Q

Q A Q A

In other words, this soya oil should have to be used by Unifish but instead they are seeling (sic) it? Yes, at a profit. You also said that there is tax evasion in the selling of cans. What do you mean by this? There is another privileged [sic] by the BOI for a special price given to packaging materials. When you export the product there is a 50% price difference. Now, taking that advantage of that exemption, they sold it to certain company here, again to Virginia Farms. Do you have proof to that effect? No, but we can get it there. Will that fact be shown in any listed articles in the application for search warrant since according to you, you have seen this manipulation reflected on the books of account kept by Gina? Are you sure that these documents are still there? Yes. I have received information. Alright.xxxi[31]

such inquiries to be sufficiently probing. Alleged lack of particularity in the description of the things seized Petitioners note the similarities in the description of the things to be seized in the subject warrants and those in Stonehill vs. Diokno,xxxii[32] Bache & Co. (Phil.), Inc. vs. Ruiz,xxxiii [33] and Asian Surety & Insurance Co., Inc. vs. Herrera.xxxiv[34] In Stonehill, the effects to be searched and seized were described as:
Books of accounts, financial records, vouchers, journals correspondence, receipts, ledgers, portfolios, credit journals, typewriters, and other documents and/or papers showing all business transactions including disbursement receipts, balance sheets and related profit and loss statements.

Q A Q

This Court found that the foregoing description failed to conform to the requirements set forth by the Constitution since:
x x x the warrants authorized the search for and seizure of records pertaining to all business transactions of petitioners herein, regardless of whether the transactions were legal or illegal. The warrants sanctioned the seizure of all records of the petitioners and the aforementioned corporations, whatever their nature, thus openly contravening the explicit command of our Bill of Rights - that the things to be seized be particularly described - as well as tending to defeat its major object: the elimination of general warrants.

A COURT:

Abos stated that, as former Operating Chief of Unifish, he had access to the company records, and even showed the issuing judge photocopies thereof. Thus, we reject the contention that this witness did not have personal knowledge of the facts to which he testified. The contents of the deposition clearly demonstrate otherwise. The deposition also shows that, contrary to petitioners submission, the inquiries made by the judge were far from leading or being a rehash of the witness affidavit. We find

In Bache & Co., this Court struck down a warrant containing a similar description as those in Stonehill:
The documents, papers, and effects sought to be seized are described in Search Warrant No. 2-M-70 in this manner: 56

Unregistered and private books of accounts (ledgers, journals, columnars, receipts and disbursements books, customers' ledgers); receipts for payments received; certificates of stocks and securities; contracts, promissory notes and deeds of sale; telex and coded messages; business communications; accounting and business records; checks and check stubs; records of bank deposits and withdrawals; and records of foreign remittances, covering the years 1966 to 1970. The description does not meet the requirement in Art. III, Sec. 1, of the Constitution, and of Sec. 3, Rule 126 of the Revised Rules of Court, that the warrant should particularly describe the things to be seized.

xxx
In Uy Kheytin, et al. vs. Villareal, etc., et al., 42 Phil. 886, 896, this Court had occasion to explain the purpose of the requirement that the warrant should particularly describe the place to be searched and the things to be seized, to wit: x x x Both the Jones Law (sec. 3) and General Orders No. 68 (sec. 97) specifically require that a search warrant should particularly describe the place to be searched and the things to be seized. The evident purpose and intent of this requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant - to leave the officers of the law with no discretion regarding what articles they shall seize, to the end that unreasonable searches and seizures may not be made, that abuses may not be committed. That is the correct interpretation of this constitutional provision borne out by the American authorities. The purpose as thus explained could, surely and effectively, be defeated under the search warrant issued in this case. A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the

circumstances will ordinarily allow (People vs. Rubio, 57 Phil, 384); or when the description expresses a conclusion of fact - not of law by which the warrant officer may be guided in making the search and seizure (idem., dissent of Abad Santos, J.,); or when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued (Sec. 2, Rule 126, Revised Rules of Court). The herein search warrant does not conform to any of the foregoing tests. If the articles desired to be seized have any direct relation to an offense committed, the applicant must necessarily have some evidence, other than those articles, to prove the said offense; and the articles subject of search and seizure should come in handy merely to strengthen such evidence. In this event, the description contained in the herein disputed warrant should have mentioned, at least, the dates, amounts, persons, and other pertinent data regarding the receipts of payments, certificates of stocks and securities, contracts, promissory notes, deeds of sale, messages and communications, checks, bank deposits and withdrawals, records of foreign remittances, among others, enumerated in the warrant.

In Asian Surety & Insurance Co., Inc. vs. Herrera, the description of the things to be seized, i.e., Fire Registers, Loss, Bordereau, Adjusters' Report, including subrogation receipts and proof of loss, Loss Registers, Book of Accounts including cash receipts and disbursements and general ledger, etc. was held to be an omnibus description and, therefore, invalid:
x x x Because of this all embracing description which includes all conceivable records of petitioner corporation, which if seized x x x, could paralyze its business, petitioner in several motions filed for early resolution of this case, manifested that the seizure of TWO carloads of their papers has paralyzed their business to the grave prejudice of not only the company, its workers, agents, employees but also of its numerous insured and beneficiaries of bonds issued 57

by it, including the government itself, and of the general public. And correlating the same to the charges for which the warrant was issued, We have before Us the infamous general warrants of old.

In the case at bar, the things to be seized were described in the following manner:
1. Multiple sets of Books of Accounts; Ledgers, Journals, Columnar Books, Cash Register Books, Sales Books or Records; Provisional & Official Receipts; 2. Production Record Books/Inventory Lists [,] Stock Cards; 3. Unregistered Delivery Receipts; 4. Unregistered Purchase & Sales Invoices; 5. Sales Records, Job Order; 6. Corporate Financial Records; and 7. Bank Statements/Cancelled Checks

provisional & official receipts, production record books/inventory lists, stock cards, sales records, job order, corporate financial records, and bank statements/cancelled checks is therefore unacceptable considering the circumstances of this case. As regards the terms unregistered delivery receipts and unregistered purchase & sales invoices, however, we hold otherwise. The Solicitor General correctly argues that the serial markings of these documents need not be specified as it is not possible to do so precisely because they are unregistered.xxxvi[36] Where, by the nature of the goods to be seized, their description must be rather general, it is not required that a technical description be given, as this would mean that no warrant could issue. Taking into consideration the nature of the articles so described, it is clear that no other more adequate and detailed description could have been given, particularly because it is difficult to give a particular description of the contents thereof.xxxvii[37] Although it appears that photocopies of these unregistered documents were among those handed by Abos to the issuing judge, it would be impractical to require the latter to specify each and every receipt and invoice, and the contents thereof, to the minutest detail. The general description of most of the documents listed in the warrants does not render the entire warrant void. Insofar as the warrants authorize the search and seizure of unregistered delivery receipts and unregistered purchase and sales invoices, the warrants remain valid. The search warrant is severable, and those items not particularly described may be cut off without destroying the whole warrant. In United States v. Cook,xxxviii[38] the United States Court of Appeals (Fifth
58

We agree that most of the items listed in the warrants fail to meet the test of particularity, especially since witness Abos had furnished the judge photocopies of the documents sought to be seized. The issuing judge could have formed a more specific description of these documents from said photocopies instead of merely employing a generic description thereof. The use of a generic term or a general description in a warrant is acceptable only when a more specific description of the things to be seized is unavailable. The failure to employ the specificity available will invalidate a general description in a warrant.xxxv[35] The use by the issuing judge of the terms multiple sets of books of accounts, ledgers, journals, columnar books, cash register books, sales books or records,

Circuit) made the following pronouncement:

x x x. The leading decision is Aday v. Superior Court, 53 Cal.2d 789, 362 P.2d 47, 13 Cal.Rptr. 415 (1961). In Aday, a warrant was issued authorizing the seizure of two particularly described books and myriad other generally described items. On appeal, the California Supreme Court held that only the books were particularly described in the warrant and lawfully seized. The court acknowledged that the warrant was flawed, but rather than suppress everything seized, the court chose to sever the defective portions of the warrant and suppress only those items that were not particularly described. Although the warrant was defective x x x it does not follow that it was invalid as a whole. Such a conclusion would mean that the seizure of certain articles, even though proper if viewed separately, must be condemned merely because the warrant was defective with respect to other articles. The invalid portions of the warrant are severable from the authorization relating to the named books x x x. The search for and seizure of these books, if otherwise valid, were not rendered illegal by the defects concerning other articles.

obtained evidence. Moreover, suppression of only those items that were not particularly described serves as an effective deterrent to those in the Government who would be tempted to secure a warrant without the necessary description. As the leading commentator has observed, it would be harsh medicine indeed if a warrant which was issued on probable cause and which did particularly describe certain items were to be invalidated in toto merely because the affiant and the magistrate erred in seeking and permitting a search for other items as well. 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 4.6(f) (1978).

Accordingly, the items not particularly described in the warrants ought to be returned to petitioners. Petitioners allege that the following articles, though not listed in the warrants, were also taken by the enforcing officers:
1. One characters, (1) composition notebook containing Chinese

2. Two (2) pages writing with Chinese characters, 3. Two (2) pages Chinese character writing, 4. Two (2) packs of chemicals, 5. One (1) bound gate pass, 6. Surety Agreement.xxxix[39]

xxx
x x x We agree with the reasoning of the Supreme Court of California and the majority of state courts that have considered this question and hold that in the usual case the district judge should sever the infirm portion of the search warrant as passes constitutional muster. See United States v. Giresi, 488 F.Supp. 445, 459-60 (D.N.J.1980). Items that were not described with the requisite particularity in the warrant should be suppressed, but suppression of all of the fruits of the search is hardly consistent with the purposes underlying exclusion. Suppression of only the items improperly described prohibits the Government from profiting from its own wrong and removes the court from considering illegally

In addition, the searching party also seized items belonging to the Premier Industrial and Development Corporation (PIDC), which shares an office with petitioner Unifish. The things belonging to petitioner not specifically mentioned in the warrants, like those not particularly described, must be ordered returned to petitioners. In order to
59

comply with the constitutional provisions regulating the issuance of search warrants, the property to be seized under a warrant must be particularly described therein and no other property can be taken thereunder.xl[40] In Tambasen vs. People,xli[41] it was held:
Moreover, by their seizure of articles not described in the search warrant, the police acted beyond the parameters of their authority under the search warrant. Section 2, Article III of the 1987 Constitution requires that a search warrant should particularly describe the things to be seized. The evident purpose and intent of the requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant, to leave the officers of the law with no discretion regarding what articles they should seize, to the end that unreasonable searches and seizures may not be made and that abuses may not be committed (Corro v. Lising, 137 SCRA 541, 547 [1985]); Bache & Co. [Phil.], Inc. v. Ruiz, 37 SCRA 823 [1971]; Uy Kheytin v. Villareal, 42 Phil. 886 [1920]). The same constitutional provision is also aimed at preventing violations of security in person and property and unlawful invasions of the sanctity of the home, and giving remedy against such usurpations when attempted (People v. Damaso, 212 SCRA 547 [1992] citing Alvero v. Dizon, 76 Phil. 637, 646 [1946]). Clearly then, the money which was not indicated in the search warrant, had been illegally seized from petitioner. The fact that the members of the police team were doing their task of pursuing subversives is not a valid excuse for the illegal seizure. The presumption juris tantum of regularity in the performance of official duty cannot by itself prevail against the constitutionally protected right of an individual (People v. Cruz, 231 SCRA 759 [1994]; People v. Veloso, 48 Phil. 169, 176 [1925]). Although public welfare is the foundation of the power to search and seize, such power must be exercised and the law enforced without transgressing the constitutional rights of the citizens (People v. Damaso, supra, citing

Rodriguez v. Evangelista, 65 Phil. 230, 235 [1937]). As the Court aptly puts it in Bagahilog v. Fernandez, 198 SCRA 614 (1991), [z]eal in the pursuit of criminals cannot ennoble the use of arbitrary methods that the Constitution itself abhors.

The seizure of the items not specified in the warrants cannot be justified by the directive in the penultimate paragraph thereof to "seize and take possession of other properties relative to such violation," which in no way can be characterized as a particular description of the things to be seized. As regards the articles supposedly belonging to PIDC, we cannot order their return in the present proceedings. The legality of a seizure can be contested only by the party whose rights have been impaired thereby, and the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties.xlii[42] WHEREFORE, the Resolutions of respondent Court of Appeals dated 27 June 1996 and 14 May 1987, affirming the Order of the Regional Trial Court dated 17 July 1995, are hereby AFFIRMED insofar as said Resolutions upheld the validity of the subject Search Warrants authorizing the seizure of the unregistered delivery receipts and unregistered purchase and sales invoices, but REVERSED with respect to the rest of the articles subject of said warrants. The respondent Bureau of Internal Revenue is hereby ordered to return to petitioners all items seized from the subject premises and belonging to petitioners, except the unregistered delivery receipts and unregistered purchase and sales invoices. SO ORDERED. Davide, Jr., C.J., (Chairman), Puno, Pardo, and Ynares60

Santiago, JJ., concur.

CONTRARY to Sec. 8 of R.A. 6425, as amended by R.A. 7659, otherwise known as the Dangerous Drugs Act of 1972.2 When arraigned on October 8, 1999, appellant pleaded not guilty.3 At the pre-trial conference held on October 18, 1999, the parties admitted the following facts:

G.R. No. 147607

January 22, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs. BENHUR MAMARIL, appellant. DECISION AZCUNA, J.: Before us is a petition for review on certiorari of the decision of the Regional Trial Court of Lingayen, Pangasinan, Branch 39, in Criminal Case No. L-5963, finding appellant Benhur Mamaril guilty beyond reasonable doubt of violation of Section 81 of Republic Act (RA) No. 6425, as amended by RA No. 7659. The Information filed against appellant reads: That on or about the 1st day of February, 1999 and sometime prior thereto, in the municipality of Lingayen, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, willfully, unlawfully and criminally [did] keep and possess crushed marijuana leaves contained in seventy eight (78) sachets with a total weight of two hundred thirty six and eighty three hundredth (236.83) grams and two (2) bricks of marijuana fruiting tops weighing one thousand six hundred grams, each brick weighing eight hundred (800) grams, with a total weight of one thousand eight hundred thirty six and eighty three hundredth (1,836.83) grams, a prohibited drug, without authority to possess the same.

1. That the search was made in the house and premises of the parents of the accused where he (accused) also lives, at Ramos St., Lingayen, Pangasinan, on February 1, 1999 at about 2:30 o clock in the afternoon; 2. That the search was conducted by the elements of the PNP particularly SPO4 Faustino Ferrer, SPO1 Alfredo Rico and others; 3. That the policemen brought along with them a camera; 4. That the accused was in the balcony of the house when it was searched; 5. The existence of the report of physical science report No. (DT077-99) issued by the PNP Crime Laboratory through Chemist Theresa Ann Bugayong Cid; 6. That accused was subjected to urine sample laboratory on February 2, 1999.4 Thereafter, trial ensued. The Prosecutions Evidence On January 25, 1999, the Intelligence Section PNCO of the Lingayen Police Station, represented by SPO2 Chito S. Esmenda, applied5 before the Regional Trial Court of Lingayen, Pangasinan, Branch 39, for a search warrant authorizing the search for marijuana, a prohibited drug, at the family residence of appellant Benhur Mamaril, situated at Ramos Street,

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Poblacion, Lingayen, Pangasinan. On said date, then presiding Executive Judge Eugenio G. Ramos (now retired) issued Search Warrant No. 99-51.6 On February 1, 1999, at about 2:30 p.m., the Chief of Police of the Lingayen Police Station, SPO3 Alfredo Rico, SPO4 Faustino Ferrer, Jr. and other police officers went to the residence of appellant and implemented Search Warrant No. 99-51. When they arrived at appellants house, they saw appellants mother under the house. They asked her where appellant was, and she told them that appellant was in the house, upstairs. When they went upstairs, they saw appellant coming out of the room. Upon seeing the policemen, appellant turned back and tried to run towards the back door. SPO3 Rico told appellant to stop, which appellant did. SPO3 Rico informed appellant that they had a search warrant to search the house premises. They showed appellant and his mother the search warrant. Appellant looked at the search warrant and did not say anything. Thereafter, the policemen searched the house. The search was witnessed by two members of the barangay council in said area, namely, Barangay Kagawad Leonardo Ramos and Barangay Tanod Valentino Quintos, whom the police brought with them.7 The searching team confiscated the following: (1) fifty-five (55) heat-sealed plastic sachets containing suspected marijuana leaves, which were found in a buri bag ("bayong") under appellants house; (2) three heat-sealed plastic sachets containing suspected marijuana leaves and seeds contained in an eye-glass case; (3) twenty-two (22) heat-sealed plastic sachets containing suspected marijuana leaves and seeds taken under a pillow placed on a monobloc chair; and (4) two (2) bricks of suspected marijuana contained inside a white and gray bag found inside the closet of appellants room. SPO3 Alfredo Rico took pictures8 of the confiscated items and prepared a receipt9 of the property seized. SPO4 Faustino Ferrer, Jr. prepared a certification10 that the house was properly searched, which was signed by appellant and the barangay officials who witnessed the search. After the search, the police officers brought appellant and the confiscated articles to the Lingayen Police Station and turned them over to the desk officer.11 The next day, on February 2, 1999, police officers Alfredo Rico, Alberto Santiago and Rodolfo Madrid brought the confiscated articles to the Crime

Laboratory at Camp Florendo, San Fernando, La Union for examination. Appellant was also brought there for a drug test.12 Police Superintendent Ma. Theresa Ann Bugayong Cid, forensic chemist and head of the PNP Crime Laboratory, Regional Office I, Camp Florendo, Parian, San Fernando City, La Union, testified that on February 2, 1999, she received from the Chief of Police of Lingayen, Pangasinan, a request13 for a drug test on the person of appellant Benhur Mamaril and a laboratory examination of the confiscated specimens.14 After weighing the specimens and testing the same, Police Superintendent Cid issued a report 15 finding the specimens16 to be "POSITIVE to the test for the presence of marijuana x x x."17 Moreover, Police Superintendent Cid affirmed the findings in her report18 that the examination conducted on the urine sample of appellant was positive for the presence of methamphetamine hydrochloride known as "shabu."19 After the prosecution formally offered its testimonial and documentary exhibits on March 5, 2000, appellant, through his counsel, filed a motion with memorandum20 contending that: (1) the exhibits of the prosecution are inadmissible in evidence under Section 2 and Section 3 (2) of Article III (Bill of Rights) of the 1987 Constitution as the search warrant, by virtue of which said exhibits were seized, was illegally issued, considering that the judges examination of the complainant and his two witnesses was not in writing; and (2) said search warrant was illegally or improperly implemented. Appellant prayed that all the exhibits of the prosecution be excluded as evidence or in the alternative, that the resolution of the admissibility of the same be deferred until such time that he has completed the presentation of his evidence in chief. On August 25, 2000, the prosecution opposed the motion, and the trial court denied appellants motion.21 The Defenses Evidence Appellant Benhur Mamaril, 31, single, laborer, denied that he was residing at his parents house at Ramos Street, Lingayen, Pangasinan since he has been residing at a rented house at Barangay Matic-matic, Sta. Barabara,

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Pangasinan since December 18, 1998. Appellant declared that on February 1, 1999, it was his brother and the latters family who were residing with his mother at Ramos Street, but on said day, his brother and family were not in the house since they were at the fishpond.22 Appellant testified that on February 1, 1999, he was at his parents house at Ramos Street, Lingayen, Pangasinan, because he and his live-in partner visited his mother on said day and arrived there at 10:00 a.m. At about 2:00 p.m. of February 1, 1999, while appellant was at the back of his parents house, about seven to nine policemen, in civilian clothes, arrived. The policemen asked appellant to go upstairs and they immediately handcuffed him and brought him to the balcony of the house. He stayed at the balcony until the search was finished after more than 30 minutes. Thereafter, he was brought to the clinic of one Dr. Felix and a medical examination was conducted on him. Then he was brought to the municipal hall.23 Appellant testified that he saw the buri bag, the eye-glass case, and the gray and white bag containing suspected marijuana for the first time on the day of the search when he was at the balcony of their house. He also testified that he saw the Receipt of Property Seized for the first time while he was testifying in court. He admitted that the signature on the certification that the house was properly searched was his.24 Moreover, appellant testified that in the early morning of February 2, 1999, he was brought to the PNP Crime Laboratory in San Fernando, La Union where he gave his urine sample. Appellant insinuated that the confiscated items were only planted because he had a misunderstanding with some policemen in Lingayen. However, he admitted that the policemen who searched his parents house did not threaten or harm him in any way and he had no misunderstanding with SPO3 Alfredo Rico.25 Atty. Enrico O. Castillo, Branch Clerk of Court, RTC-Branch 39, Lingayen, Pangasinan, was requested to testify on the available records regarding Search Warrant No. 99-51 on file in the trial court and to identify said documents. Atty. Castillo testified that he only had with him the application for search warrant, the supporting affidavits of PO3 Alberto Santiago and Diosdado Fernandez and the return of the search warrant.26

Atty. Enrico declared that before he assumed office as Branch Clerk of Court, the person supposed to be in custody of any transcript of the searching questions and answers made by Executive Judge Eugenio G. Ramos in connection with the application for Search Warrant No. 99-51 was Mrs. Liberata Ariston, who was then a legal researcher and at the same time OIC-Branch Clerk of Court. However, during the trial of this case, Mrs. Liberata Ariston was in the United States of America. Atty. Enrico averred that he asked Mrs. Liberata Aristons daughter, Catherine Ramirez, who is a court stenographer, about said transcript, but it has not been found. Atty. Enrico testified that based on the records, there is no stenographic notes. He added that they tried their best to locate the subject transcript, but they could not find it.27 The Trial Courts Decision On January 23, 2001, the trial court rendered a decision, the dispositive portion of which reads: WHEREFORE, the prosecution having established beyond reasonable doubt the guilt of the accused of the crime of possession of marijuana defined and penalized under Section 8 of RA 6425, as amended, this Court in the absence of any modifying circumstances, hereby sentences said accused to suffer the penalty of RECLUSION PERPETUA and to pay a fine of Five Hundred Thousand Pesos (P500,000), plus costs of this suit. The period of preventive imprisonment suffered by the accused shall be credited in full in service of his sentence in accordance with Article 29 of the Revised Penal Code. SO ORDERED.28 The Appeal Appellant contends that the trial court made the following errors: I

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THE TRIAL COURT ERRED IN NOT DECLARING AS INADMISSIBLE IN EVIDENCE THE ARTICLES ALLEGEDLY SEIZED FROM ACCUSEDAPPELLANT CONSIDERING THAT SEARCH WARRANT NO. 99-51 WAS ILLEGALLY ISSUED. II THE TRIAL COURT LIKEWISE ERRED IN NOT DECLARING AS TOTALLY INADMISSIBLE THE INVENTORIED ARTICLES IN THE RECEIPT OF SEIZED PROPERTY AND THE CORRESPONDING CERTIFICATION ISSUED THERETO (EXHS. "J" AND "I") SINCE THE ACCUSED-APPELLANT WAS NOT ASSISTED BY COUNSEL WHEN HE SIGNED THE SAME. III THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME CHARGED DESPITE THE FACT THAT HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.29 Appellant prays for his acquittal on the ground that Search Warrant No. 99-51 was illegally issued considering that there was no evidence showing that the required searching questions and answers were made anent the application for said search warrant. Appellant pointed out that Branch Clerk of Court Enrico O. Castillo testified that based on the records, there was no transcript of stenographic notes of the proceedings in connection with the application for said search warrant. Appellant thus asserts that it cannot be said that the judge made searching questions upon the alleged applicant and his witnesses, which is in violation of Section 2, Article III of the Constitution and Section 5, Rule 126 of the Rules of Court. Our Ruling Appellants contention is meritorious. The right against unreasonable searches and seizures is guaranteed under Article III, Section 2, of the Constitution, thus:

Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Said Constitutional provision is implemented under Rule 126 of the Rules of Court, thus: Sec. 4. Requisites for issuing search warrant. A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. Sec. 5. Examination of complainant; record. -- The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. Under the above provisions, the issuance of a search warrant is justified only upon a finding of probable cause. Probable cause for a search has been defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched.30 In determining the existence of probable cause, it is required that: (1) the judge must examine the complainant and his witnesses personally; (2) the examination must be under oath; and (3) the examination must be reduced in writing in the form of searching questions and answers.31

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Atty. Enrico O. Castillo, Branch Clerk of Court, RTC-Branch 39 of Lingayen, Pangasinan, who was requested to testify on the available records kept in their office regarding Search Warrant No. 99-51, presented before the court only the application for search warrant32 and the supporting affidavits33 of PO3 Alberto Santiago and Diosdado Fernandez. Atty. Castillo could not produce the sworn statements of the complainant and his witnesses showing that the judge examined them in the form of searching questions and answers in writing as required by law. Atty. Castillo testified, thus: xxx xxx xxx

but there is no records available to have it with you and there is no proof with you? A Because during the time I assumed the office, sir, the records in the store room which they placed is topsy turvy and all the records are scattered. So, we are having a hard time in scanning the records, sir. Q But did you not try your very best assisted by the Court personnel to locate said transcript, Mr. Witness? A Sir, we tried our best but based on the transcript I can not just read the said transcript. Q You mean to say you were able to [find] the stenographic notes? A No, sir. There are stenographic notes but they are not yet transcribed, sir. Q That is by a machine steno? A Yes, sir. Q Did you not ask the assistance of the co-stenographers in your sala who are using the machine steno to identify what cases does that stenographic notes (sic)? A Sir, I was assisted by some stenographers but we can (sic) not find the transcript of stenographic notes concerning Search Warrant No. 99-49 to 99-54.34 (Underscoring ours) Based on the above testimony and the other evidence on record, the prosecution failed to prove that Executive Judge Eugenio G. Ramos put into writing his examination of the applicant and his witnesses in the form of searching questions and answers before issuance of the search

Q Would you admit that from the records available there is no transcript of the proceedings of a searching questions and answers made by the Executive Judge upon the complainant as well as the two (2) witnesses not only in connection with application for Search Warrant 99-51 but in all of those application covered by that record namely, 99-49, 99-50, 99-51, 99-52, 99-53 and 99-54? A Sir, based on the records there is no transcript of [s]tenographic notes. Q Did you not ask Catherine Ramirez, the daughter of then OICMrs. Liberata Ariston about said transcript? A I asked her for several times, sir, and in fact I asked her again yesterday and she told me that she will try to find on (sic) the said transcript. Q But until now there is no transcript yet? A Yes, sir. Q Because according to the rules the transcript must be attached to the records of this case together with the application for search warrant as well as the supporting affidavit of the said application,

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warrant. The records only show the existence of an application35 for a search warrant and the affidavits36 of the complainants witnesses. In Mata v. Bayona,37 we held: Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take depositions in writing of the complainant and the witnesses he may produce and to attach them to the record. Such written deposition is necessary in order that the Judge may be able to properly determine the existence or non-existence of the probable cause, to hold liable for perjury the person giving it if it will be found later that his declarations are false. We, therefore, hold that the search warrant is tainted with illegality by the failure of the Judge to conform with the essential requisites of taking the depositions in writing and attaching them to the record, rendering the search warrant invalid. We cannot give credit to the argument of the Solicitor General that the issuing judge examined under oath, in the form of searching questions and answers, the applicant SPO2 Chito S. Esmenda and his witnesses on January 25, 1999 as it is so stated in Search Warrant No. 99-51. Although it is possible that Judge Ramos examined the complainant and his witnesses in the form of searching questions and answers, the fact remains that there is no evidence that the examination was put into writing as required by law. Otherwise, the depositions in writing of the complainant and his witnesses would have been attached to the record, together with the affidavits that the witnesses submitted, as required by Section 5, Rule 126 of the Rules of Court. Consequently, we find untenable the assertion of the Solicitor General that the subject stenographic notes could not be found at the time Branch Clerk of Court Enrico Castillo testified before the trial court because of the confused state of the records in the latters branch when he assumed office. The Solicitor General also argues that appellant is deemed to have waived his right to question the legality of the search because he did not protest against it, and even admitted during his testimony that he was neither threatened nor maltreated by the policemen who searched their residence.

We disagree. The cases38 cited by the Solicitor General involved a warrantless search. In this case, the police authorities presented a search warrant to appellant before his residence was searched. At that time, appellant could not determine if the search warrant was issued in accordance with the law. It was only during the trial of this case that appellant, through his counsel, had reason to believe that the search warrant was illegally issued causing appellant to file a motion with memorandum objecting to the admissibility of the evidence formally offered by the prosecution. In People v. Burgos,39 we ruled: Neither can it be presumed that there was a waiver, or that consent was given by the accused to be searched simply because he failed to object. To constitute a waiver, it must appear first that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such a right; and lastly, that said person had an actual intention to relinquish the right. (Pasion Vda. de Garcia v. Locsin, 65 Phil. 689). The fact that the accused failed to object to the entry into his house does not amount to a permission to make a search therein (Magoncia v. Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. de Garcia v. Locsin (supra): xxx xxx xxx

"x x x As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officers authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent, or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. (56 C.J., pp.1180, 1181)." We apply the rule that: "courts indulge every reasonable presumption against waiver of fundamental constitutional rights and that we do not presume acquiescence in the loss of fundamental rights." (Johnson v. Zerbst, 304 U.S. 458).

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In this case, we construe the silence of appellant at the time the policemen showed him the search warrant as a demonstration of regard for the supremacy of the law. Moreover, appellant seasonably objected 40 on constitutional grounds to the admissibility of the evidence seized pursuant to said warrant during the trial of the case,41 after the prosecution formally offered its evidence.42 Under the circumstances, no intent to waive his rights can reasonably be inferred from his conduct before or during the trial. No matter how incriminating the articles taken from the appellant may be, their seizure cannot validate an invalid warrant.43 In Mata v. Bayona,44 we ruled: .[N]othing can justify the issuance of the search warrant but the fulfillment of the legal requisites. It might be well to point out what has been said in Asian Surety & Insurance Co., Inc. vs. Herrera: It has been said that of all the rights of a citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves the exemption of his private affairs, books and papers from inspection and scrutiny of others. While the power to search and seize is necessary to the public welfare, still it must be exercised and the law enforced without transgressing the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government. Thus, in issuing a search warrant the Judge must strictly comply with the requirements of the Constitution and the statutory provisions. A liberal construction should be given in favor of the individual to prevent stealthy encroachment upon, or gradual depreciation of the rights secured by the Constitution. No presumption of regularity are to be invoked in aid of the process when an officer undertakes to justify it. We, therefore, find that the requirement mandated by the law that the examination of the complainant and his witnesses must be under oath and

reduced to writing in the form of searching questions and answers was not complied with, rendering the search warrant invalid. Consequently, the evidence seized pursuant to said illegal search warrant cannot be used in evidence against appellant in accordance with Section 3 (2),45 Article III of the Constitution. It is unnecessary to discuss the other issues raised by appellant in seeking to exclude the evidence seized pursuant to said illegal search warrant. Without the aforesaid illegally obtained evidence, there is no sufficient basis to sustain the conviction of appellant. WHEREFORE, the decision of the Regional Trial Court of Lingayen, Pangasinan, Branch 39, in Criminal Case No. L-5963, is REVERSED and SET ASIDE. Judgment is hereby rendered declaring Search Warrant No. 99-51 NULL and VOID and the search and seizure made at appellants residence illegal. For lack of evidence to establish appellants guilt beyond reasonable doubt, appellant BENHUR MAMARIL is hereby ACQUITTED and ordered RELEASED from confinement unless he is being held for some other legal grounds. The Director of the Bureau of Corrections is ORDERED to IMPLEMENT without delay this Decision and to INFORM this Court, within ten (10) days from receipt hereof, of the date appellant was actually released from confinement. The confiscated marijuana is ORDERED forfeited in favor of the State and the trial court is hereby directed to deliver or cause its delivery to the Dangerous Drugs Board for proper disposition. Costs de oficio. SO ORDERED. Davide, Jr., C.J., (Chairman), Panganiban, Ynares-Santiago, and Carpio, JJ., concur.

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G.R. No. 149878

July 1, 2003

PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs. TIU WON CHUA a.k.a. "Timothy Tiu" and QUI YALING y CHUA a.k.a. "Sun Tee Sy y Chua," accused appellant. PUNO, J.: This is an appeal from the decision of the Regional Trial Court (RTC) of Manila, Branch 27, convicting appellants Tiu Won Chua a.k.a. Timothy Tiu (Tiu Won) and Qui Yaling y Chua a.k.a. Sun Tee Sy y Chua (Qui Yaling) for violation of Section 16, Article III of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended by Republic Act No. 7659. Appellants were charged with the crime of illegal possession of a regulated drug, i.e., methamphetamine hydrochloride, otherwise known as "shabu," in an information which reads: The undersigned accuses TIU WON CHUA aka "Timothy Tiu" and QUI YALING Y CHUA aka "Sun Tee Sy Y Chua" of violation of Section 16, Article III in relation to Section 2 (e-2), Article I of Republic Act No. 6425, as amended by Batas Pambansa Blg. 179 and as further amended by Republic Act No. 7659, committed as follows: That on or about the 3rd day of October 1998, in the City of Manila, Philippines, the said accused without being authorized by law to possess or use any regulated drug, did then and there wilfully, unlawfully, knowingly and jointly have in their possession and under their custody and control the following, to wit: A sealed plastic bag containing two three four point five (234.5) grams of white crystalline substance; Four (4) separate sealed plastic bags containing six point two two four three (6.2243) grams of white crystalline substance; Sixteen (16) separate sealed plastic bags containing twenty point three six seven three (20.3673) grams of white crystalline substance; or a total of 261.0916 grams, and; An improvised tooter with traces of crystalline substance known as "SHABU" containing methamphetamine hydrochloride, a regulated drug, without the corresponding license or prescription thereof. Contrary to law.1 During arraignment, a plea of not guilty was entered. Appellants, with the assistance of counsel, and the prosecution stipulated on the following facts: 1. The authenticity of the following documents: a. The letter of Police Senior Inspector Angelo Martin of WPD, District Intelligence Division, United Nations Avenue, Ermita, Manila, dated October 12, 1998, to the Director of the NBI requesting the latter to conduct a laboratory examination of the specimen mentioned therein; b. The Certification issued by Forensic Chemist Loreto Bravo of the NBI, dated October 13, 1998, to the effect that the specimen mentioned and enumerated therein gave positive results for methamphetamine hydrochloride, Exhibit "B"; and c. Dangerous Drug Report No. 98-1200 issued by Forensic Chemist Bravo, dated October 13, 1998, to the effect that the specimen mentioned therein gave positive results for methamphetamine hydrochloride;

2. The existence of one plastic bag containing 234.5 grams of methamphetamine hydrochloride, Exhibit "D"; four (4) plastic sachets also containing methamphetamine hydrochloride with a total net weight of 6.2243 grams, Exhibits "E", "E-1", "E-2" and "E-3"; additional 16 plastic sachets containing methamphetamine hydrochloride with a total net weight of 20.3673 grams, Exhibits "F", "F-1" to "F15", and one improvised tooter with a length of 8 inches more or less and with a red plastic band, Exhibit "G"; 3. Forensic Chemist Loreto Bravo has no personal knowledge as to the source of the regulated drug in question; and 4. Tiu Won Chua and Qui Yaling y Chua as stated in the information are the true and correct names of the two accused.2 The witnesses presented by the prosecution were SPO1 Anthony de Leon, PO2 Artemio Santillan and PO3 Albert Amurao. Their testimonies show that the police authorities, acting on an information that drug-related activities were going on at the HCL Building, 1025 Masangkay St., Binondo, Manila, surveyed the place on October 2, 3, 4 and 5, 1998. At about 10 p.m. of October 6, they conducted a test-buy operation, together with a Chinese-speaking asset. They were able to buy P2,000.00 worth of substance from appellants, which, upon examination by the PNP crime laboratory, proved positive for methamphetamine hydrochloride.3 Nonetheless, they did not immediately arrest the suspects but applied for a warrant to search Unit 4-B of HCL Building, 1025 Masangkay St., Binondo, Manila. Their application to search the unit supposedly owned by "Timothy Tiu" was granted by Judge Ramon Makasiar of Branch 35 of the RTC of Manila on October 9.4 Armed with the warrant, they proceeded to the place and learned that Tiu Won was not inside the building. They waited outside but Tiu Won did not come. After several stakeouts, they were able to implement the warrant on October 12. Failing to get the cooperation of the barangay officials, they requested the presence of the building coordinator, Noel Olarte, and his wife, Joji, who acted as witnesses. During the enforcement of the warrant, there were three (3) persons inside the apartment, namely, appellants Tiu Won and Qui Yaling, and a housemaid. The search was conducted on the sala and in the three (3) bedrooms of Unit 4-B. On top of a table inside the masters bedroom, one (1) big pack, containing 234.5 grams of shabu, was found inside a black leather mans handbag supposedly owned by Tiu Won, while sixteen (16) small packs of shabu weighing 20.3673 grams were found inside a ladys handbag allegedly owned by Qui Yaling. Also contained in the inventory were the following items: an improvised tooter, a weighing scale, an improvised burner and one rolled tissue paper.5 The authorities also searched a Honda Civic car bearing Plate No. WCP 157, parked along Masangkay Street, registered in the name of the wife of Tiu Won and found four (4) plastic bags containing 6.2243 grams of shabu, which were likewise confiscated. A gun in the possession of Tiu Won was also seized and made subject of a separate criminal case. The defense presented appellants Tiu Won and Qui Yaling. They denied that Timothy Tiu and Tiu Won Chua are one and the same person. They presented papers and documents to prove that appellant is Tiu Won Chua and not Timothy Tiu, as stated in the search warrant. Tiu Won also claimed that he does not live in the apartment subject of the search warrant, alleging that he is married to a certain Emily Tan and is a resident of No. 864 Alvarado St., Binondo, Manila. Nonetheless, he admitted that his co-appellant, Qui Yaling, is his mistress with whom he has two children. Qui Yaling admitted being the occupant of the apartment, but alleged that she only occupied one room, while two other persons, a certain Lim and a certain Uy, occupied the other rooms. Both appellants denied that they were engaged in the sale or possession of shabu. They asserted that they are in the jewelry business and that at the time the search and arrest were made, the third person, whom the prosecution identified as a housemaid, was actually a certain Chin, who was there to look at some of the pieces of jewelry sold by Tiu Won. They also denied that a gun was found in the possession of Tiu Won. Qui Yaling recalled that upon asking who was it knocking at the door of her apartment on October 12, the police authorities represented that they were electric bill collectors. She let them in. She was surprised when upon opening the door, around ten (10) policemen barged inside her unit. She, together with Tiu Won and Chin, was asked to remain seated in the sofa while the men searched each room. Tiu Won alleged that after a fruitless search, some of the policemen went out, but came back a few minutes later with another person. Afterwards, he was made to sign a piece of paper. Appellants also claimed that the policemen took their bags which contained money, the pieces of jewelry they were selling and even Qui Yalings cell phone. They both denied that shabu was discovered in the apartment during the search. Appellants were arrested and

brought to the police station. In a decision, dated August 15, 2001, the RTC found proof beyond reasonable doubt of the guilt of the appellants and sentenced them to suffer the penalty of reclusion perpetua and a fine of P500,000.00 each.6 Thus, appellants interpose this appeal raising the following assignment of errors: I THE TRIAL COURT ERRED IN DISREGARDING THE LEGAL DEFECTS OF THE SEARCH WARRANT USED BY THE POLICE OPERATIVES AGAINST BOTH ACCUSED. II THE TRIAL COURT ERRED IN TAKING INTO CONSIDERATION EVIDENCES (sic) WHICH SHOULD HAVE BEEN EXCLUDED AND DISREGARDED WHICH RESULTED IN THE ERRONEOUS CONVICTION OF BOTH ACCUSED. III THE TRIAL COURT ERRED IN CONVICTING BOTH ACCUSED DESPITE THE ABSENCE OF PROOF BEYOND REASONABLE DOUBT. IV THE TRIAL COURT ERRED IN DISREGARDING THE FACT THAT THE CONSTITUTIONAL RIGHTS OF BOTH ACCUSED WERE SERIOUSLY VIOLATED BY THE POLICE OPERATIVES.7 These issues can be trimmed down to two i.e., the legality of the search warrant and the search and arrest conducted pursuant thereto, and the correctness of the judgment of conviction imposed by the RTC. As regards the propriety of the search warrant issued in the name of Timothy Tiu, which did not include appellant Qui Yaling, appellants contend that because of this defect, the search conducted and consequently, the arrest, are illegal. Being fruits of an illegal search, the evidence presented cannot serve as basis for their conviction. We beg to disagree. There are only four requisites for a valid warrant, i.e,: (1) it must be issued upon "probable cause"; (2) probable cause must be determined personally by the judge; (3) such judge must examine under oath or affirmation the complainant and the witnesses he may produce; and (4) the warrant must particularly describe the place to be searched and the persons or things to be seized.8 As correctly argued by the Solicitor General, a mistake in the name of the person to be searched does not invalidate the warrant,9 especially since in this case, the authorities had personal knowledge of the drug-related activities of the accused. In fact, a "John Doe" warrant satisfies the requirements so long as it contains a descriptio personae such as will enable the officer to identify the accused.10 We have also held that a mistake in the identification of the owner of the place does not invalidate the warrant provided the place to be searched is properly described.11 Thus, even if the search warrant used by the police authorities did not contain the correct name of Tiu Won or the name of Qui Yaling, that defect did not invalidate it because the place to be searched was described properly. Besides, the authorities conducted surveillance and a test-buy operation before obtaining the search warrant and subsequently implementing it. They can therefore be presumed to have personal knowledge of the identity of the persons and the place to be searched although they may not have specifically known the names of the accused. Armed with the warrant, a valid search of Unit 4-B was conducted. We affirm, however, the illegality of the search conducted on the car, on the ground that it was not part of the description of the place to be searched mentioned in the warrant. It is mandatory that for the search to be valid, it must be directed at the place particularly described in the warrant.12 Moreover, the search of the car

was not incidental to a lawful arrest. To be valid, such warrantless search must be limited to that point within the reach or control of the person arrested, or that which may furnish him with the means of committing violence or of escaping.13 In this case, appellants were arrested inside the apartment, whereas the car was parked a few meters away from the building. In a prosecution for illegal possession of a dangerous drug, it must be shown that (1) appellants were in possession of an item or an object identified to be a prohibited or regulated drug, (2) such possession is not authorized by law, and (3) the appellants were freely and consciously aware of being in possession of the drug.14 We also note that the crime under consideration is malum prohibitum, hence, lack of criminal intent or good faith does not exempt appellants from criminal liability. Mere possession of a regulated drug without legal authority is punishable under the Dangerous Drugs Act.15 In the case at bar, the prosecution has sufficiently proved that the packs of shabu were found inside Unit 4-B, HCL Building, 1025 Masangkay St., Binondo, Manila. Surveillance was previously conducted. Though no arrest was made after the successful test-buy operation, this does not destroy the fact that in a subsequent search, appellants were found in possession of shabu. The testimonies of the prosecution witnesses are consistent in that after the test-buy operation, they obtained a search warrant from Judge Makasiar, pursuant to which, they were able to confiscate, among others, several packs of shabu from a mans handbag and a ladies handbag inside a room in the unit subject of the warrant. Furthermore, the seizure of the regulated drug from Unit 4-B is proven by the "Receipt for Property Seized"16 signed by SPO1 de Leon, the seizing officer, Noel, the building administrator, and Joji Olarte, his wife, who were also present. De Leon attested to the truth and genuineness of the receipt which was not contradicted by the defense. Be that as it may, we cannot sustain the trial courts decision attributing to both appellants the illegal possession of the same amount of shabu. We note that nowhere in the information is conspiracy alleged. Neither had it been proven during the trial. As such, we need to look at the individual amounts possessed by each appellant. In his testimony, Tiu Won admitted ownership of the mans handbag where 234.5 grams of shabu were found, viz: Q: During those ten to 20 minutes, what were those policemen doing inside that unit?

A: They went inside the rooms and started ransacking the drawers and everything. As a matter of fact, even handbags were searched by them. Q: Whose handbags were searched?

A: My bag, the one I was carrying that day, with jewelry and checks and others were taken by them.17 (emphasis supplied) Qui Yaling, in her appellants brief, denied owning the handbag where 20.3673 grams of shabu were discovered. However, during her testimony, she admitted its ownership, viz: Q: Now, the police testified before this court that you has (sic) a bag and when they searched this bag, it yielded some sachets of shabu(.) (W)hat can you say about that? A: That is an absolute lie, sir. What they saw in my bag were my cosmetics. 18 (emphasis supplied) An admission is an act or declaration of a party as to the existence of a relevant fact which may be used in evidence against him.19 These admissions, provided they are voluntary, can be used against appellants because it is fair to presume that they correspond with the truth, and it is their fault if they do not.20 Qui Yaling likewise argues that the lower court erred in attributing ownership of the handbag to her considering that there was another girl present at the apartment during the search. She contends that since the prosecution was not able to establish the ownership of the bag, then such could have also been owned by Chin.

We do not subscribe to this argument. The defense failed to bring Chin to court, although during the course of the presentation of their evidence, they manifested their intention to present her testimony. Furthermore, a visitor does not normally leave her bag lying anywhere, much more in the masters bedroom. Being the occupant of the apartment, it is more logical to presume that the handbag belongs to Qui Yaling. The failure of the prosecution to present the bags and proofs that the bags belong to the appellants is immaterial because the bags, the license of Tiu Won found inside the mans handbag and the passport of Qui Yaling found inside the ladies handbag are not illegal. Having no relation to the use or possession of shabu, the authorities could not confiscate them for they did not have the authority to do so since the warrant authorized them to seize only articles in relation to the illegal possession of shabu. 21 Not within their control, they could not have been presented in court. We now come to the penalties of the appellants. R. A. No. 6425, as amended by R. A. No. 7659, applies. Thus, since 234.5 grams of shabu were found inside the mans handbag, deemed to be owned by Tiu Won, he is guilty of violating Section 16, Article III of R.A. No. 6425, while Qui Yaling, whose handbag contained only 20.3673 grams of shabu is guilty of violating Section 20 thereof. Section 16, in connection with Section 20 (1st paragraph), provides the penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos where the amount of shabu involved is 200 grams or more. Where the amount is less than 200 grams, Section 20 punishes the offender with the penalty ranging from prision correccional to reclusion perpetua. IN VIEW WHEREOF, the decision of RTC Br. 27, Manila as to the penalty of appellant Tiu Won is affirmed, while that of appellant Qui Yaling is modified. Tiu Won Chua is sentenced to a penalty of reclusion perpetua, and a fine of five hundred thousand pesos (P500,000.00) in accordance with Section 16 and Section 20 (1 st paragraph) of R.A. No. 6425, as amended by R.A. No. 7659. Qui Yaling y Chua is sentenced to an indeterminate sentence of prision correccional as minimum to prision mayor as maximum, there being no mitigating or aggravating circumstances. SO ORDERED. Panganiban, Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur. xxxxxxxxxxx
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