G.R. No.

133917

February 19, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NASARIO MOLINA y MANAMA @ "BOBONG" and GREGORIO MULA y MALAGURA @
"BOBOY", accused-appellants.
YNARES-SANTIAGO, J.:
To sanction disrespect and disregard for the Constitution in the name of protecting the society from
lawbreakers is to make the government itself lawless and to subvert those values upon which our
ultimate freedom and liberty depend.1
For automatic review is the Decision2 of the Regional Trial Court of Davao City, Branch 17, in
Criminal Case No. 37,264-96, finding accused-appellants Nasario Molina y Manamat alias "Bobong"
and Gregorio Mula y Malaguraalias "Boboy," guilty beyond reasonable doubt of violation of Section
8,3 of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended by Republic Act No.
7659,4 and sentencing them to suffer the supreme penalty of death.
The information against accused-appellants reads:
That on or about August 8, 1996, in the City of Davao, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, in conspiracy with each other, did then
and there willfully, unlawfully and feloniously was found in their possession 946.9 grants of
dried marijuana which are prohibited.
CONTRARY TO LAW.5
Upon arraignment on September 4, 1996, accused-appellants pleaded not guilty to the accusation
against them.6Trial ensued, wherein the prosecution presented Police Superintendent Eriel Mallorca,
SPO1 Leonardo Y. Pamplona, Jr., and SPO1 Marino S. Paguidopon, Jr. as witnesses.
The antecedent facts are as follows:
Sometime in June 1996, SPO1 Marino Paguidopon, then a member of the Philippine National Police
detailed at Precinct No. 3, Matina, Davao City, received an information regarding the presence of an
alleged marijuana pusher in Davao City.7 The first time he came to see the said marijuana pusher in
person was during the first week of July 1996. SPO1 Paguidopon was then with his informer when a
motorcycle passed by. His informer pointed to the motorcycle driver, accused-appellant Mula, as the
pusher. As to accused-appellant Molina, SPO1 Paguidopon had no occasion to see him before the
arrest. Moreover, the names and addresses of the accused- appellants came to the knowledge of
SPO1 Paguidopon only after they were arrested. 8
At about 7:30 in the morning of August 8, 1996, SPO1 Paguidopon received an information that the
alleged pusher will be passing at NHA, Ma- a, Davao City any time that morning. 9 Consequently, at
around 8:00 A.M. of the same day, he called for assistance at the PNP, Precinct No. 3, Matina,

Davao City, which immediately dispatched the team of SPO4 Dionisio Cloribel (team leader), SPO2
Paguidopon (brother of SPO1 Marino Paguidopon), and SPO1 Pamplona, to proceed to the house
of SPO1 Marino Paguidopon where they would wait for the alleged pusher to pass by.10
At around 9:30 in the morning of August 8, 1996, while the team were positioned in the house of
SPO1 Paguidopon, a "trisikad" carrying the accused-appellants passed by. At that instance, SPO1
Paguidopon pointed to the accused-appellants as the pushers. Thereupon, the team boarded their,
vehicle and overtook the "trisikad."11 SPO1 Paguidopon was left in his house, thirty meters from
where the accused-appellants were accosted.12
The police officers then ordered the "trisikad" to stop. At that point, accused-appellant Mula who was
holding a black bag handed the same to accused-appellant Molina. Subsequently, SPO1 Pamplona
introduced himself as a police officer and asked accused-appellant Molina to open the bag. 13 Molina
replied, "Boss, if possible we will settle this."14 SPO1 Pamplona insisted on opening the bag, which
revealed dried marijuana leaves inside. Thereafter; accused-appellants Mula and Molina were
handcuffed by the police officers.15
On December 6, 1996, accused-appellants, through counsel, jointly filed a Demurrer to Evidence,
contending that the marijuana allegedly seized from them is inadmissible as evidence for having
been obtained in violation of their constitutional right against unreasonable searches and
seizures.16 The demurrer was denied by the trial court.17 A motion for reconsideration was filed by
accused-appellants, but this was likewise denied. Accused-appellants waived presentation of
evidence and opted to file a joint memorandum.
On April 25, 1997, the trial court rendered the assailed decision,18 the decretal portion of which
reads:
WHEREFORE, finding the evidence of the prosecution alone without any evidence from both
accused who waived presentation of their own evidence through their counsels, more than
sufficient to prove the guilt of both accused of the offense charged beyond reasonable doubt,
pursuant to Sec. 20, sub. par. 5 of Republic Act 7659, accused NASARIO MOLINA and
GREGORIO MULA, are sentenced to suffer a SUPREME PENALTY OF DEATH through
lethal injection under Republic Act 8176, to be effected and implemented as therein provided
for by law, in relation to Sec. 24 of Rep. Act 7659.
The Branch Clerk of Court of this court, is ordered to immediately elevate the entire records
of this case with the Clerk of Court of the Supreme Court, Manila, for the automatic review of
their case by the Supreme Court and its appropriate action as the case may be.
SO ORDERED.19
Pursuant to Article 47 of the Revised penal Code and Rule 122, Section 10 of the Rules of Court, the
case was elevated to this Court on automatic review. Accused-appellants contend:
I.

THAT THE MARIJUANA IS IN ADMISSIBLE IN EVIDENCE FOR HAVING BEEN SEIZED IN

VIOLATION OF APPELLANTS' CONSTITUTIONAL RIGHTS AGAINST UNREASONABLE,
SEARCHES AND SEIZURES;
II.
THAT ASSUMING IT IS ADMISSIBLE IN EVIDENCE, THE GOVERNMENT HAS NOT
OTHERWISE PROVED THEIR GUILT BEYOND REASONABLE DOUBT; AND
III.
THAT, FINALLY, ASSUMING THEIR GUILT HAS BEEN PROVED BEYOND REASONABLE
DOUBT, THE IMPOSABLE PENALTY FOR VIOLATION OF SEC. 8 OF RA No. 7659 (sic), IN
THE ABSENCE OF ANY AGGRAVATING CIRCUMSTANCE, IS LIFE IMPRISONMENT, NOT
DEATH.20
The Solicitor General filed a Manifestation and MO1ion (In Lieu of Brief), wherein he prayed for the
acquittal of both accused-appellants.
The fundamental law of the land mandates that searches and seizures be carried out in a
reasonable fashion, that is, by virtue or on the strength of a search warrant predicated upon the
existence of a probable cause. The pertinent provision of the Constitution provides:
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.21
Complementary to the foregoing provision is the exclusionary rule enshrined under Article III, Section
3, paragraph 2, which bolsters and solidifies the protection against unreasonable searches and
seizures.22 Thus:
Any evidence obtained in violation of this or the preceding section shall be inadmissible for
any purpose in any proceeding.
Without this rule, the right to privacy would be a form of words, valueless and undeserving of
mention in a perpetual charter of inestimable human liberties; so too, without this rule, the freedom
from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual
nexus with the freedom from all brutish means of coercing evidence as not to merit this Court's high
regard as a freedom implicit in the concept of ordered liberty.23
The foregoing constitutional proscription, however, is not without exceptions. Search and seizure
may be made without a warrant and the evidence obtained therefrom may be admissible in the
following instances: (1) search incident to a lawful arrest; (2) search of a moving motor vehicle; (3)

search in violation of customs laws; (4) seizure of evidence in plain view; (5) when the accused
himself waives his right against unreasonable searches and seizures; 24 and (6) stop and frisk
situations (Terry search).25
The first exception (search incidental to a lawful arrest) includes a valid warrantless search and
seizure pursuant to an equally valid warrantless arrest which must precede the search. In this
instance, the law requires that there be first a lawful arrest before a search can be made --- the
process cannot be reversed.26 As a rule, an arrest is considered legitimate if effected with .a valid
warrant of arrest. The Rules of Court, however, recognizes permissible warrantless arrests. Thus, a
peace officer or a private person may, without warrant, arrest a person: (a) when, in his presence,
the person to be arrested has committed, is actually committing, or is attempting to commit an
offense (arrest in flagrante delicto); (b) when an offense has just been committed and he has
probable cause to believe based on personal knowledge of facts or circumstances that the person to
be arrested has committed it (arrest effected in hot pursuit); and (c) when the person to be arrested
is a prisoner who has escaped from a penal establishment or a place where he is serving final
judgment or is temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another ( arrest of escaped prisoners ). 27
In the case at bar, the court a quo anchored its judgment of conviction on a finding that the
warrantless arrest of accused-appellants, and the subsequent search conducted by the peace
officers, are valid because accused-appellants were caught in flagrante delicto in possession of
prohibited drugs.28 This brings us to the issue of whether or not the warrantless arrest, search and
seizure in the present case fall within the recognized exceptions to the warrant requirement.
In People v. Chua Ho San,29 the Court held that in cases of in flagrante delicto arrests, a peace
officer or a private person may, without a warrant, arrest a person when, in his presence, the person
to be arrested has committed, is actually committing, or is attempting to commit an offense. The
arresting officer, therefore, must have personal knowledge of such fact or, as recent case law
adverts to, personal knowledge of facts or circumstances convincingly indicative or constitutive of
probable cause. As discussed in People v. Doria,30 probable cause means an actual belief or
reasonable grounds of suspicion. The grounds of suspicion are reasonable when, in the absence of
actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of
committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong
in themselves to create the probable cause of guilt of the person to be arrested. A reasonable
suspicion therefore must be founded on probable cause, coupled with good faith on the part of the
peace officers making the arrest.
As applied to in flagrante delicto arrests, it is settled that "reliable information" alone, absent any
overt act indicative of a felonious enterprise in the presence and within the view of the arresting
officers, are not sufficient to constitute probable cause that would justify an in flagrante delicto arrest.
Thus, in People v. Aminnudin,31 it was held that "the accused-appellant was not, at the moment of his
arrest, committing a crime nor was it shown that he was about to do so or that he had just done so.
What he was doing was descending the gangplank of the MN Wilcon 9 and there was no outward
indication that called for his arrest. To all appearances, he was like any of the other passengers
innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier
of the marijuana that he suddenly became suspect and so subject to apprehension."

Likewise, in People v. Mengote,32 the Court did not consider "eyes... darting from side to side :..
[while] holding ... [one's] abdomen", in a crowded street at 11:30 in the morning, as overt acts and
circumstances sufficient to arouse suspicion and indicative of probable cause. According to the
Court, "[b]y no stretch of the imagination could it have been inferred from these acts that an offense
had just been committed, or was actually being committed or was at least being attempted in [the
arresting officers'] presence." So also, in People v. Encinada,33 the Court ruled that no probable
cause is gleanable from the act of riding a motorela while holding two plastic baby chairs.
1wphi1.nt

Then, too, in Malacat v. Court of Appeals,34 the trial court concluded that petitioner was attempting to
commit a crime as he was "`standing at the comer of Plaza Miranda and Quezon Boulevard' with his
eyes 'moving very fast' and 'looking at every person that come (sic) nearer (sic) to them.'" 35 In
declaring the warrantless arrest therein illegal, the Court said:
Here, there could have been no valid in flagrante delicto ... arrest preceding the search in
light of the lack of personal knowledge on the part of V u, the arresting officer, or an overt
physical act, on the part of petitioner, indicating that a crime had just been committed, was
being committed or was going to be committed.36
It went on to state that
Second, there was nothing in petitioner's behavior or conduct which could have reasonably
elicited even mere suspicion other than that his eyes were "moving very fast" - an
observation which leaves us incredulous since Yu and his teammates were nowhere near
petitioner and it was already 6:30 p.m., thus presumably dusk. Petitioner and his
companions were merely standing at the comer and were not creating any commotion or
trouble...
Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed
with a deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was
"discovered" "inside the front waistline" of petitioner, and from all indications as to the
distance between Yu and petitioner, any telltale bulge, assuming that petitioner was indeed
hiding a grenade, could not have been visible to Yu. 37
Clearly, to constitute a valid in flagrante delicto arrest, two requisites must concur: (1) the person to
be arrested must execute an overt act indicating that he has just committed, is actually committing,
or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view
of the arresting officer.38
In the case at bar, accused-appellants manifested no outward indication that would justify their
arrest. In holding a bag on board a trisikad, accused-appellants could not be said to be committing,
attempting to commit or have committed a crime. It matters not that accused-appellant Molina
responded "Boss, if possible we will settle this" to the request of SPO1 Pamplona to open the bag.
Such response which allegedly reinforced the "suspicion" of the arresting officers that accusedappellants were committing a crime, is an equivocal statement which standing alone will not
constitute probable cause to effect an inflagrante delicto arrest. Note that were it not for SPO1
Marino Paguidopon (who did not participate in the arrest but merely pointed accused-appellants to

the arresting officers), accused-appellants could not be the subject of any suspicion, reasonable or
otherwise.
While SPO1 Paguidopon claimed that he and his informer conducted a surveillance of accusedappellant Mula, SPO1 Paguidopon, however, admitted that he only learned Mula's name and
address after the arrest. What is more, it is doubtful if SPO1 Paguidopon indeed recognized
accused-appellant Mula. It is worthy to note that, before the arrest, he was able to see Mula in
person only once, pinpointed to him by his informer while they were on the side of the road. These
circumstances could not have afforded SPO1 Paguidopon a closer look at accused-appellant Mula,
considering that the latter was then driving a motorcycle when, SPO1 Paguidopon caught a glimpse
of him. With respect to accused-appellant Molina, SPO1 Paguidopon admitted that he had never
seen him before the arrest.
This belies the claim of SPO1 Pamplona that he knew the name of accused-appellants even before
the arrest, to wit
"QWhen you said that certain Mula handed a black bag to another person and how did
you know that it was Mula who handed the black bag to another person?
ABecause I have already information from Paguidopon, regarding Mula and Molina,
when they pass by through the street near the residence of Paguidopon. He told that the one
who is big one that is Gregorio Mula and the thin one is Nazario Molina" 39
The aforecited testimony of SPO1 Pamplona, therefore, is entirely baseless SPO1 Pamplona could
not have learned the name of accused-appellants from SPO1 Paguipodon because Paguipodon
himself, who allegedly conducted the surveillance, was not even aware of accused-appellants' name
and address prior to the arrest.
Evidently, SPO1 Paguidopon, who acted as informer of the arresting officers, more so the arresting
officers themselves, could not have been certain of accused-appellants' identity, and were, from all
indications, merely fishing for evidence at the time of the arrest.
Compared to People v. Encinada, the arresting officer in the said case knew appellant Encinada
even before the arrest because of the latter's illegal gambling activities, thus, lending at least a
semblance of validity on the arrest effected by the peace officers. Nevertheless, the Court declared
in said case that the warrantless arrest and the consequent search were illegal, holding that "[t]he
prosecution's evidence did not show any suspicious behavior when the appellant disembarked from
the ship or while he rode the motorela. No act or fact demonstrating a felonious enterprise could be
ascribed to appellant under such bare circumstances." 40
Moreover, it could not be said that accused-appellants waived their right against unreasonable
searches and seizure. Implied acquiescence to the search, if there was any, could not have been
more than mere passive conformity given under intimidating or coercive circumstances and is thus
considered no consent at all within the purview of the constitutional guarantee. 41

Withal, the Court holds that the arrest of accused-appellants does not fall under the exceptions
allowed by the rules. Hence, the search conducted on their person was likewise illegal.
Consequently, the marijuana seized by the peace officers could not be admitted as evidence against
accused-appellants, and the Court is thus, left with no choice but to find in favor of accusedappellants.
While the Court strongly supports the campaign of the government against drug addiction and
commends the efforts of our law-enforcement officers towards this drive, all efforts for the
achievement of a drug-free society must not encroach on the fundamental rights and liberties of
individuals as guaranteed in the Bill of Rights, which protection extends even to the basest of
criminals.
WHEREFORE, the Decision of the Regional Trial Court of Davao City, Branch 17, in Criminal Case
No. 37, 264-96, is REVERSED and SET ASIDE. For lack of evidence to establish their guilt beyond
reasonable doubt, accused-appellants Nasario Molina y Manamat alias "Bobong" and Gregorio Mula
y Malagura alias "Boboy", areACQUITTED and ordered RELEASED from confinement unless they
are validly detained for other offenses. No costs.
SO ORDERED.

[G.R. No. 123872. January 30, 1998]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

MONTILLA y GATDULA, accused-appellant.

vs. RUBEN

DECISION
REGALADO, J.:

Accused-Appellant Ruben Montilla y Gatdula, alias "Joy," was charged on August

22, 1994 for violating Section 4, Article II of the Dangerous Drugs Act of 1972, Republic
Act No. 6425, as amended by Republic Act No. 7659, before the Regional Trial Court,
Branch 90, of Dasmarias, Cavite in an information which alleges:

That on or about the 20th day of June 1994, at Barangay Salitran, Municipality
of Dasmarias, Province of Cavite, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, not being authorized by law, did
then and there, wilfully, unlawfully and feloniously, administer, transport, and
deliver twenty-eight (28) kilos of dried marijuana leaves, which are considered
prohibited drugs, in violation of the provisions of R.A. 6425 thereby causing
damage and prejudice to the public interest.
[1]

The consequent arraignment conducted on September 14, 1994 elicited a plea of

not guilty from appellant who was assisted therein by his counsel de parte. Trial was
held on scheduled dates thereafter, which culminated in a verdict of guilty in a decision
of the trial court dated June 8, 1995 and which imposed the extreme penalty of death on
appellant. He was further ordered to pay a fine in the amount of P500,000.00 and to pay
the costs of the proceedings.
[2]

[3]

It appears from the evidence of the prosecution that appellant was apprehended at
around 4:00 A.M. of June 20, 1994 near a waiting shed located at Barangay Salitran,
Dasmarias, Cavite by SPO1 Concordio Talingting and SPO1 Armando Clarin, both
members of the Cavite Philippine National Police Command based in
Dasmarias. Appellant, according to the two officers, was caught transporting 28
marijuana bricks contained in a traveling bag and a carton box, which marijuana bricks
had a total weight of 28 kilos.
These two officers later asserted in court that they were aided by an informer in the
arrest of appellant. That informer, according to Talingting and Clarin, had informed them
the day before, or on June 19, 1994 at about 2:00 P.M., that a drug courier, whom said
informer could recognize, would be arriving somewhere in Barangay Salitran,
Dasmarias from Baguio City with an undetermined amount of marijuana. It was the
same informer who pinpointed to the arresting officers the appellant when the latter
alighted from a passenger jeepney on the aforestated day, hour, and place.
[4]

Upon the other hand, appellant disavowed ownership of the prohibited drugs. He
claimed during the trial that while he indeed came all the way from Baguio City, he
traveled to Dasmarias, Cavite with only some pocket money and without any
luggage. His sole purpose in going there was to look up his cousin who had earlier
offered a prospective job at a garment factory in said locality, after which he would
return to Baguio City. He never got around to doing so as he was accosted by SPO1
Talingting and SPO1 Clarin at Barangay Salitran.
He further averred that when he was interrogated at a house in Dasmarias, Cavite,
he was never informed of his constitutional rights and was in fact even robbed of
the P500.00 which he had with him. Melita Adaci, the cousin, corroborated appellant's
testimony about the job offer in the garment factory where she reportedly worked as a
supervisor, although, as the trial court observed, she never presented any document to
prove her alleged employment.
[5]

In the present appellate review, appellant disputes the trial court's finding that he
was legally caught in flagrante transporting the prohibited drugs. This Court, after an
objective and exhaustive review of the evidence on record, discerns no reversible error

in the factual findings of the trial court. It finds unassailable the reliance of the lower
court on the positive testimonies of the police officers to whom no ill motives can be
attributed, and its rejection of appellant's fragile defense of denial which is evidently selfserving in nature.
1. Firstly, appellant asserts that the court a quo grossly erred in convicting him on
the basis of insufficient evidence as no proof was proffered showing that he wilfully,
unlawfully, and feloniously administered, transported, and delivered 28 kilos of dried
marijuana leaves, since the police officers "testified only on the alleged transporting of
Marijuana from Baguio City to Cavite."
Further, the failure of the prosecution to present in court the civilian informant is
supposedly corrosive of the People's cause since, aside from impinging upon
appellant's fundamental right to confront the witnesses against him, that informant was
a vital personality in the operation who would have contradicted the hearsay and
conflicting testimonies of the arresting officers on how appellant was collared by them.
The pertinent provision of the penal law here involved, in Section 4 of Article II
thereof, as amended, is as follows:

SEC. 4. Sale, Administration, Delivery, Distribution and Transportation of

Prohibited Drugs. - The penalty of reclusion perpetua to death and a fine
ranging from five hundred thousand pesos to ten million pesos shall be
imposed upon any person who, unless authorized by law, shall sell,
administer, deliver, give away to another, distribute, dispatch in transit or
transport any prohibited drug, or shall act as a broker in any of such
transactions.
Notwithstanding the provision of Section 20 of this Act to the contrary, if the
victim of the offense is a minor, or should a prohibited drug involved in any
offense under this Section be the proximate cause of the death of a victim
thereof, the maximum penalty herein provided shall be imposed.
Now, the offense ascribed to appellant is a violation of the Dangerous Drugs Act,
some of the various modes of commission being the sale, administration, delivery,
distribution, and transportation of prohibited drugs as set forth in the epigraph of Section
4, Article II of said law. The text of Section 4 expands and extends its punitive scope to
other acts besides those mentioned in its headnote by including these who shall sell,
administer, deliver, give away to another, distribute, dispatch in transit or transport any
prohibited drug, or shall act as a broker in any of such transactions." Section 4 could
[6]

thus be violated by the commission of any of the acts specified therein, or a combination
thereof, such as selling, administering, delivering, giving away, distributing, dispatching
in transit or transporting, and the like.
As already stated, appellant was charged with a violation of Section 4, the
transgressive acts alleged therein and attributed to appellant being that he
administered, delivered, and transported marijuana. The governing rule with respect to
an offense which may be committed in any of the different modes provided by law is that
an indictment would suffice if the offense is alleged to have been committed in one, two
or more modes specified therein. This is so as allegations in the information of the
various ways of committing the offense should be considered as a description of only
one offense and the information cannot be dismissed on the ground of multifariousness.
In appellant's case, the prosecution adduced evidence clearly establishing that he
transported marijuana from Baguio City to Cavite. By that act alone of transporting the
illicit drugs, appellant had already run afoul of that particular section of the statute,
hence, appellant's asseverations must fail.
[7]

The Court also disagrees with the contention of appellant that the civilian informer
should have been produced in court considering that his testimony was "vital" and his
presence in court was essential in order to give effect to or recognition of appellant's
constitutional right to confront the witnesses arrayed by the State against him. These
assertions are, however, much too strained. Far from compromising the primacy of
appellant's right to confrontation, the non-presentation of the informer in this instance
was justified and cannot be faulted as error.
For one, the testimony of said informer would have been, at best, merely
corroborative of the declarations of SPO1 Talingting and SPO1 Clarin before the trial
court, which testimonies are not hearsay as both testified upon matters in which they
had personally taken part. As such, the testimony of the informer could be dispensed
with by the prosecution, more so where what he would have corroborated are the
narrations of law enforcers on whose performance of duties regularity is the prevailing
legal presumption. Besides, informants are generally not presented in court because of
the need to hide their identities and preserve their invaluable services to the police.
Moreover, it is up to the prosecution whom to present in court as its witnesses, and not
for the defense to dictate that course. Finally, appellant could very well have resorted
to the coercive process of subpoena to compel that eyewitness to appear before the
court below, but which remedy was not availed of by him.
[8]

[9]

[10]

[11]

2. Appellant contends that the marijuana bricks were confiscated in the course of an
unlawful warrantless search and seizure. He calls the attention of the Court to the fact
that as early as 2:00 P.M. of the preceding day, June 19, 1994, the police authorities

had already been apprised by their so-called informer of appellant's impending arrival
from Baguio City, hence those law enforcers had the opportunity to procure the requisite
warrant. Their misfeasance should therefore invalidate the search for and seizure of the
marijuana, as well as the arrest of appellant on the following dawn. Once again, the
Court is not persuaded.
Section 2, Article III of the Constitution lays down the general rule that a search and
seizure must be carried out through or on the strength of a judicial warrant, absent
which such search and seizure becomes "unreasonable" within the meaning of said
constitutional provision. Evidence secured on the occasion of such an unreasonable
search and seizure is tainted and should be excluded for being the proverbial fruit of a
poisonous tree. In the language of the fundamental law, it shall be inadmissible in
evidence
for
any
purpose
in
any
proceeding.This
exclusionary rule is not, however, an absolute and rigid proscription. Thus, (1) customs
searches; (2) searches of moving vehicles, (3) seizure of evidence in plain view; (4)
consented searches; (5) searches incidental to a lawful arrest; and (6) "stop and
frisk" measures have been invariably recognized as the traditional exceptions.
[12]

[13]

[14]

[16]

[15]

[17]

[18]

In appellant's case, it should be noted that the information relayed by the civilian
informant to the law enforcers was that there would be delivery of marijuana at
Barangay Salitran by a courier coming from Baguio City in the "early morning" of June
20, 1994. Even assuming that the policemen were not pressed for time, this would be
beside the point for, under these circumstances, the information relayed was too
sketchy and not detailed enough for the obtention of the corresponding arrest or search
warrant. While there is an indication that the informant knew the courier, the records do
not reveal that he knew him by name.
While it is not required that the authorities should know the exact name of the
subject of the warrant applied for, there is the additional problem that the informant did
not know to whom the drugs would be delivered and at which particular part of the
barangay there would be such delivery. Neither did this asset know the precise time of
the suspect's arrival, or his means of transportation, the container or contrivance
wherein the drugs were concealed and whether the same were arriving together with, or
were being brought by someone separately from, the courier.
On such bare information, the police authorities could not have properly applied for
a warrant, assuming that they could readily have access to a judge or a court that was
still open by the time they could make preparations for applying therefor, and on which
there is no evidence presented by the defense. In determining the opportunity for
obtaining warrants, not only the intervening time is controlling but all the coincident and
ambient circumstances should be considered, especially in rural areas. In fact, the

police had to form a surveillance team and to lay down a dragnet at the possible entry
points to Barangay Salitran at midnight of that day notwithstanding the tip regarding the
"early morning" arrival of the courier. Their leader, SPO2 Cali, had to reconnoiter inside
and around the barangay as backup, unsure as they were of the time when and the
place in Barangay Salitran, where their suspect would show up, and how he would do
so.
On the other hand, that they nonetheless believed the informant is not surprising for,
as both SPO1 Clarin and SPO1 Talingting recalled, he had proved to be a reliable
source in past operations. Moreover, experience shows that although information
gathered and passed on by these assets to law enforcers are vague and piecemeal,
and not as neatly and completely packaged as one would expect from a professional
spymaster, such tip-offs are sometimes successful as it proved to be in the
apprehension of appellant. If the courts of justice are to be of understanding assistance
to our law enforcement agencies, it is necessary to adopt a realistic appreciation of the
physical and tactical problems of the latter, instead of critically viewing them from the
placid and clinical environment of judicial chambers.
3. On the defense argument that the warrantless search conducted on appellant
invalidates the evidence obtained from him, still the search on his belongings and the
consequent confiscation of the illegal drugs as a result thereof was justified as a search
incidental to a lawful arrest under Section 5(a), Rule 113 of the Rules of Court. Under
that provision, a peace officer or a private person may, without a warrant, arrest a
person when, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense.
A legitimate warrantless arrest, as above contemplated, necessarily cloaks the
arresting police officer with authority to validly search and seize from the offender (1)
dangerous weapons, and (2) those that may be used as proof of the commission of an
offense. On the other hand, the apprehending officer must have been spurred by
probable cause in effecting an arrest which could be classified as one in cadence
with the instances of permissible arrests set out in Section 5(a). These instances have
been applied to arrests carried out on persons caught in flagrante delicto. The
conventional view is that probable cause, while largely a relative term the determination
of which must be resolved according to the facts of each case, is understood as having
reference to such facts and circumstances which could lead a reasonable, discreet, and
prudent man to believe and conclude as to the commission of an offense, and that the
objects sought in connection with the offense are in the place sought to be searched.
[19]

[20]

[21]

Parenthetically, if we may digress, it is time to observe that the evidentiary measure

for the propriety of filing criminal charges and, correlatively, for effecting a warrantless

arrest, has been reduced and liberalized. In the past, our statutory rules and
jurisprudence required prima facie evidence, which was of a higher degree or quantum,
and was even used with dubiety as equivalent to "probable cause." Yet, even in the
American jurisdiction from which we derived the term and its concept, probable cause is
understood to merely mean a reasonable ground for belief in the existence of facts
warranting the proceedings complained of, or an apparent state of facts found to exist
upon reasonable inquiry which would induce a reasonably intelligent and prudent man
to believe that the accused person had committed the crime.
[22]

[23]

[24]

Felicitously, those problems and confusing concepts were clarified and set aright, at
least on the issue under discussion, by the 1985 amendment of the Rules of Court
which provides in Rule 112 thereof that the quantum of evidence required in preliminary
investigation is such evidence as suffices to "engender a well founded belief" as to the
fact of the commission of a crime and the respondent's probable guilt thereof. It has
the same meaning as the related phraseology used in other parts of the same Rule, that
is, that the investigating fiscal "finds cause to hold the respondent for trial," or where "a
probable cause exists." It should, therefore, be in that sense, wherein the right to effect
a warrantless arrest should be considered as legally authorized.
[25]

[26]

In the case at bar, as soon as appellant had alighted from the passenger jeepney
the informer at once indicated to the officers that their suspect was at hand by pointing
to him from the waiting shed. SPO1 Clarin recounted that the informer told them that the
marijuana was likely hidden inside the traveling bag and carton box which appellant was
carrying at the time. The officers thus realized that he was their man even if he was
simply carrying a seemingly innocent looking pair of luggage for personal
effects. Accordingly, they approached appellant, introduced themselves as policemen,
and requested him to open and show them the contents of the traveling bag, which
appellant voluntarily and readily did. Upon cursory inspection by SPO1 Clarin, the bag
yielded the prohibited drugs, so, without bothering to further search the box, they
brought appellant and his luggage to their headquarters for questioning.
Appellant insists that the mere fact of seeing a person carrying a traveling bag and
a carton box should not elicit the slightest suspicion of the commission of any crime
since that is normal. But, precisely, it is in the ordinary nature of things that drugs being
illegally transported are necessarily hidden in containers and concealed from
view. Thus, the officers could reasonably assume, and not merely on a hollow suspicion
since the informant was by their side and had so informed them, that the drugs were in
appellant's luggage. It would obviously have been irresponsible, if not downright absurd
under the circumstances, to require the constable to adopt a "wait and see" attitude at
the risk of eventually losing the quarry.

Here, there were sufficient facts antecedent to the search and seizure that, at the
point prior to the search, were already constitutive of probable cause, and which by
themselves could properly create in the minds of the officers a well-grounded and
reasonable belief that appellant was in the act of violating the law. The search yielded
affirmance both of that probable cause and the actuality that appellant was then actually
committing a crime by illegally transporting prohibited drugs. With these attendant facts,
it is ineluctable that appellant was caught inflagrante delicto, hence his arrest and the
search of his belongings without the requisite warrant were both justified.
Furthermore, that appellant also consented to the search is borne out by the
evidence. To repeat, when the officers approached appellant and introduced themselves
as policemen, they asked him about the contents of his luggage, and after he replied
that they contained personal effects, the officers asked him to open the traveling
bag. Appellant readily acceded, presumably or in all likelihood resigned to the fact that
the law had caught up with his criminal activities. When an individual voluntarily submits
to a search or consents to have the same conducted upon his person or premises, he is
precluded from later complaining thereof.
After all, the right to be secure from unreasonable search may, like other rights, be
waived either expressly or impliedly. Thus, while it has been held that the silence of
the accused during a warrantless search should not be taken to mean consent to the
search but as a demonstration of that person's regard for the supremacy of the law,
the case of herein appellant is evidently different for, here, he spontaneously
performed affirmative acts of volition by himself opening the bag without being forced or
intimidated to do so, which acts should properly be construed as a clear waiver of his
right.
[27]

[28]

[29]

4. Appellant likewise harps on the alleged failure of the prosecution to "legally,

properly and adequately establish that the 28 bricks of marijuana allegedly confiscated
from (him) were the same marijuana examined by the forensic chemist and presented in
court." Indeed, the arresting officers did not identify in court the marijuana bricks seized
from appellant since, in fact they did not have to do so. It should be noted that the
prosecution presented in the court below and formally offered in evidence those 28
bricks of marijuana together with the traveling bag and the carton box in which the same
were contained. The articles were properly marked as confiscated evidence and proper
safeguards were taken to ensure that the marijuana turned over to the chemist for
examination, and which subsequently proved positive as such, were the same drugs
taken from appellant. The trial court, therefore, correctly admitted them in evidence,
satisfied that the articles were indubitably no other than those taken from appellant.

Complementarily, the corpus delicti was firmly established by SPO1 Clarin and
SPO1 Talingting who categorically related that when they had ascertained that the
contents of the traveling bag of appellant appeared to be marijuana, they forthwith
asked him where he had come from, and the latter readily answered "Baguio City," thus
confirming the veracity of the report of the informer. No other conclusion can therefore
be derived than that appellant had transported the illicit drugs all the way to Cavite from
Baguio City. Coupled with the presentation in court of the subject matter of the crime,
the marijuana bricks which had tested positive as being indian hemp, the guilt of
appellant for transporting the prohibited drugs in violation of the law is beyond doubt.
Appellant questions the interrogation conducted by the police authorities, claiming
that he was not allowed to communicate with anybody, and that he was not duly
informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. Indeed, appellant has a point. The police authorities here
could possibly have violated the provision of Republic Act No. 7438 which defines
certain rights of persons arrested, detained, or under custodial investigation, as well as
the duties of the arresting, detaining, and investigating officers, and providing
corresponding penalties for violations thereof.
[30]

Assuming the existence of such irregularities, however, the proceedings in the lower
court will not necessarily be struck down. Firstly, appellant never admitted or confessed
anything during his custodial investigation. Thus, no incriminatory evidence in the nature
of a compelled or involuntary confession or admission was elicited from him which
would otherwise have been inadmissible in evidence. Secondly and more importantly,
the guilt of appellant was clearly established by other evidence adduced by the
prosecution, particularly the testimonies of the arresting officers together with the
documentary and object evidence which were formally offered and admitted in evidence
in the court below.
5. The reversible error of the trial court lies in its imposition of the penalty of death
on appellant. As amended by Republic Act No. 7659, Section 20, Article IV of the
Dangerous Drugs Act now provides inter alia that the penalty in Section 4 of Article II
shall be applied if the dangerous drugs involved is, in the case of indian hemp or
marijuana, 750 grams or more. In said Section 4, the transporting of prohibited drugs
carries with it the penalty of reclusion perpetua to death and a fine ranging from five
hundred thousand pesos to ten million pesos. Thus, the law prescribes a penalty
composed of two indivisible penalties, reclusion perpetua and death. In the present
case, Article 63 of the Revised Penal Code consequently provides the rules to be
observed in the application of said penalties.

As found by the trial court, there were neither mitigating nor aggravating
circumstances attending appellant's violation of the law, hence the second paragraph of
Article 63 must necessarily apply, in which case the lesser penalty of reclusion
perpetua is the proper imposable penalty. Contrary to the pronouncement of the court a
quo, it was never intended by the legislature that where the quantity of the dangerous
drugs involved exceeds those stated in Section 20, the maximum penalty of death shall
be imposed. Nowhere in the amendatory law is there a provision from which such a
conclusion may be gleaned or deduced. On the contrary, this Court has already
concluded that Republic Act No. 7659 did not amend Article 63 of the Revised Penal
Code, the rules wherein were observed although the cocaine subject of that case was
also in excess of the quantity provided in Section 20.
[31]

It is worth mentioning at this juncture that the law itself provides a specific penalty
where the violation thereof is in its aggravated form as laid down in the second
paragraph of Section 4 whereby, regardless of Section 20 of Article IV, if the victim is a
minor, or should a prohibited drug involved in any offense in said section be the
proximate cause of the death of a victim thereof, the maximum penalty shall be
imposed. While the minority or the death of the victim will increase the liability of the
offender, these two facts do not constitute generic aggravating circumstances, as the
law simply provides for the imposition of the single indivisible penalty of death if the
offense is attended by either of such factual features. In that situation, obviously the
rules on the graduation of penalties in Article 63 cannot apply. In herein appellant's
case, there was neither a minor victim nor a consequent death of any victim. Hence, the
basic rules in Article 63 of the Code govern.
[32]

WHEREFORE, the judgment of the Regional Trial Court, Branch 90, of Dasmarias,
Cavite in Criminal Case No. 3401-94 is hereby MODIFIED in the sense that accusedappellant Ruben Montilla y Gatdula shall suffer the penalty of reclusion perpetua. In all
other respects, the judgment of the trial court is hereby AFFIRMED, with costs against
accused-appellant.
SO ORDERED.
G.R. No. 145566

March 9, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
DINDO "BEBOT" MOJELLO, appellant.

DECISION

YNARES-SANTIAGO, J.:
On automatic review is a decision of the Regional Trial Court (RTC) of Bogo, Cebu, Branch 61,
finding appellant Dindo "Bebot" Mojello guilty beyond reasonable doubt of the crime of rape with
homicide defined and penalized under Article 335 of the Revised Penal Code, as amended by
Republic Act No. 7659, and sentencing him to the supreme penalty of death. 1
Appellant Dindo Mojello, alias "Bebot" was charged with the crime of rape with homicide in an
Information dated May 22, 1997, as follows:2
That on the 15th day of December 1996, at about 11:00 o'clock in the evening, at Sitio Kota,
Barangay Talisay, Municipality of Santa Fe, Province of Cebu, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, moved by lewd design and
by means of force, violence and intimidation, did then and there willfully, unlawfully and
feloniously succeed in having carnal knowledge with Lenlen Rayco under twelve (12) years
of age and with mental deficiency, against her will and consent, and by reason and/or on the
occasion thereof, purposely to conceal the most brutal act and in pursuance of his criminal
design, the above-named accused, did then and there willfully, unlawfully and feloniously
with intent to kill, treacherously and employing personal violence, attack, assault and kill the
victim Lenlen Rayco, thereby inflicting upon the victim wounds on the different parts of her
body which caused her death.
CONTRARY TO LAW.
Appellant was arraigned on July 24, 1997, entering a plea of "not guilty." Trial followed.
On January 21, 1999, the trial court rendered judgment finding appellant guilty beyond reasonable
doubt of the crime of rape with homicide, and sentencing him to suffer the death penalty.
From the facts found by the court a quo, it appears that on December 15, 1996, at or around 9:00
p.m., Rogelio Rayco was having some drinks with a group which included Roger Capacito and his
wife and the spouses Borah and Arsolin Illustrismo at the Capacito residence located at Barangay
Talisay, Sta. Fe, Cebu.3
Rogelio Rayco left the group to go home about an hour later. On his way home, he saw his niece,
Lenlen Rayco, with appellant Dindo Mojello, a nephew of Roger Capacito, walking together some
thirty meters away towards the direction of Sitio Kota.4 Since he was used to seeing them together
on other occasions, he did not find anything strange about this. He proceeded to his house. 5
On December 16, 1996, between 5:00 to 6:00 a.m., the Rayco family was informed that the body of
Lenlen was found at the seashore of Sitio Kota. Rogelio Rayco immediately proceeded to the site
and saw the lifeless, naked and bruised body of his niece. Rogelio was devastated by what he saw.
A remorse of conscience enveloped him for his failure to protect his niece. He even attempted to
take his own life several days after the incident.6
Appellant was arrested at Bantayan while attempting to board a motor launch bound for Cadiz City.
On an investigation conducted by SPO2 Wilfredo Giducos, he admitted that he was the perpetrator
of the dastardly deed. Appellant was assisted by Atty. Isaias Giduquio during his custodial

interrogation. His confession was witnessed by Barangay Captains Wilfredo Batobalanos and
Manolo Landao. Batobalanos testified that after it was executed, the contents of the document were
read to appellant who later on voluntarily signed it. 7 Appellant's extrajudicial confession was sworn
before Judge Cornelio T. Jaca of the Municipal Circuit Trial Court (MCTC) of Sta. Fe-Bantayan. 8 On
December 21, 1996, an autopsy was conducted on the victim's cadaver by Dr. Nestor Sator of the
Medico-Legal Branch of the PNP Crime Laboratory, Region VII.9
Dr. Sator testified that the swelling of the labia majora and hymenal lacerations positively indicate
that the victim was raped.10 He observed that froth in the lungs of the victim and contusions on her
neck show that she was strangled and died of asphyxia.11 He indicated the cause of death as cardiorespiratory arrest due to asphyxia by strangulation and physical injuries to the head and the trunk. 12
In this automatic review, appellant raises two issues: whether the extrajudicial confession executed
by appellant is admissible in evidence; and whether appellant is guilty beyond reasonable doubt of
the crime of rape with homicide.
We now resolve.
Appellant alleges that the lower court gravely erred in admitting in evidence the alleged extrajudicial
confession which he executed on December 23, 1996. In his Brief, appellant avers that the
confession which he executed was not freely, intelligently and voluntarily entered into. 13 He argues
that he was not knowingly and intelligently apprised of his constitutional rights before the confession
was taken from him.14 Hence, his confession, and admissions made therein, should be deemed
inadmissible in evidence, under the fruit of the poisonous tree doctrine.
We are not convinced.
At the core of the instant case is the application of the law on custodial investigation enshrined in
Article III, Section 12, paragraph 1 of the Constitution, which provides:
Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the presence of
counsel.
The above provision in the fundamental Charter embodies what jurisprudence has termed as
"Miranda rights" stemming from the landmark decision of the United States Supreme Court, Miranda
v. Arizona.15 It has been the linchpin of the modern Bill of Rights, and the ultimate refuge of
individuals against the coercive power of the State.
The Miranda doctrine requires that: (a) any person under custodial investigation has the right to
remain silent; (b) anything he says can and will be used against him in a court of law; (c) he has the
right to talk to an attorney before being questioned and to have his counsel present when being
questioned; and (d) if he cannot afford an attorney, one will be provided before any questioning if he
so desires.
In the Philippines, the right to counsel espoused in the Miranda doctrine was based on the leading
case of People v. Galit16 and Morales, Jr. v. Enrile,17 rulings subsequently incorporated into the
present Constitution. The Mirandadoctrine under the 1987 Charter took on a modified form where
the right to counsel was specifically qualified to mean competent and independent counsel

preferably of the suspect's own choice. Waiver of the right to counsel likewise provided for stricter
requirements compared to its American counterpart; it must be done in writing, and in the presence
of counsel.
Verily, it may be observed that the Philippine law on custodial investigation has evolved to provide
for more stringent standards than what was originally laid out in Miranda v. Arizona. The purpose
of the constitutional limitations on police interrogation as the process shifts from the investigatory to
the accusatory seems to be to accord even the lowliest and most despicable criminal suspects a
measure of dignity and respect. The main focus is the suspect, and the underlying mission of
custodial investigation to elicit a confession.
The extrajudicial confession executed by appellant on December 23, 1996, applying Art. III, Sec. 12,
par. 1 of the Constitution in relation to Rep. Act No. 7438, Sec. 2 complies with the strict
constitutional requirements on the right to counsel. In other words, the extrajudicial confession of the
appellant is valid and therefore admissible in evidence.
As correctly pointed out by the Solicitor General, appellant was undoubtedly apprised of
his Miranda rights under the Constitution.18 The court a quo observed that the confession itself
expressly states that the investigating officers informed him of such rights. 19 As further proof of the
same, Atty. Isaias Giduquio testified that while he was attending a Sangguniang Bayan session, he
was requested by the Chief of Police of Sta. Fe to assist appellant.20Appellant manifested on record
his desire to have Atty. Giduquio as his counsel, with the latter categorically stating that before the
investigation was conducted and appellant's statement taken, he advised appellant of his
constitutional rights. Atty. Giduquio even told appellant to answer only the questions he understood
freely and not to do so if he was not sure of his answer.21 Atty. Giduquio represented appellant during
the initial stages of the trial of the present case.
Atty. Giduquio was a competent and independent counsel of appellant within the contemplation of
the Constitution. No evidence was presented to negate his competence and independence in
representing appellant during the custodial investigation. Moreover, appellant manifested for the
record that Atty. Giduquio was his choice of counsel during the custodial proceedings.
The phrase "preferably of his own choice" does not convey the message that the choice of a lawyer
by a person under investigation is exclusive as to preclude other equally competent and independent
attorneys from handling the defense; otherwise the tempo of custodial investigation will be solely in
the hands of the accused who can impede, nay, obstruct the progress of the interrogation by simply
selecting a lawyer who, for one reason or another, is not available to protect his interest. 22
We ruled in People v. Continente23 that while the choice of a lawyer in cases where the person under
custodial interrogation cannot afford the services of counsel or where the preferred lawyer is not
available is naturally lodged in the police investigators, the suspect has the final choice as he may
reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is
deemed engaged by the accused when he does not raise any objection against the counsel's
appointment during the course of the investigation, and the accused thereafter subscribes to the
veracity of the statement before the swearing officer.24
The right to counsel at all times is intended to preclude the slightest coercion as would lead the
accused to admit something false. The lawyer, however, should never prevent an accused from
freely and voluntarily telling the truth. In People v. Dumalahay,25 this Court held:
The sworn confessions of the three accused show that they were properly apprised of their
right to remain silent and right to counsel, in accordance with the constitutional guarantee.

At 8:00 in the morning of the next day, the three accused proceeded to the office of Atty.
Rexel Pacuribot, Clerk of Court of the Regional Trial Court of Cagayan de Oro City. All of the
three accused, still accompanied by Atty. Ubay-ubay, subscribed and swore to their
respective written confessions. Before administering the oaths, Atty. Pacuribot reminded the
three accused of their constitutional rights under the Miranda doctrine and verified that their
statements were voluntarily given. Atty. Pacuribot also translated the contents of each
confession in the Visayan dialect, to ensure that each accused understood the same before
signing it.
No ill-motive was imputed on these two lawyers to testify falsely against the accused. Their
participation in these cases merely involved the performance of their legal duties as officers
of the court. Accused-appellant Dumalahay's allegation to the contrary, being self-serving,
cannot prevail over the testimonies of these impartial and disinterested witnesses.
More importantly, the confessions are replete with details which could possibly be supplied
only by the accused, reflecting spontaneity and coherence which psychologically cannot be
associated with a mind to which violence and torture have been applied. These factors are
clear indicia that the confessions were voluntarily given.
When the details narrated in an extrajudicial confession are such that they could not have
been concocted by one who did not take part in the acts narrated, where the claim of
maltreatment in the extraction of the confession is unsubstantiated and where abundant
evidence exists showing that the statement was voluntarily executed, the confession is
admissible against the declarant. There is greater reason for finding a confession to be
voluntary where it is corroborated by evidence aliunde which dovetails with the essential
facts contained in such confession.
The confessions dovetail in all their material respects. Each of the accused gave the same
detailed narration of the manner by which Layagon and Escalante were killed. This clearly
shows that their confessions could not have been contrived. Surely, the three accused could
not have given such identical accounts of their participation and culpability in the crime were
it not the truth.
Concededly, the December 17, 1996 custodial investigation upon appellant's apprehension by the
police authorities violated the Miranda doctrine on two grounds: (1) no counsel was present; and (2)
improper waiver of the right to counsel as it was not made in writing and in the presence of counsel.
However, the December 23, 1996 custodial investigation which elicited the appellant's confession
should nevertheless be upheld for having complied with Art. III, Sec. 12, par. 1. Even though
improper interrogation methods were used at the outset, there is still a possibility of obtaining a
legally valid confession later on by properly interrogating the subject under different conditions and
circumstances than those which prevailed originally.26
The records of this case clearly reflect that the appellant freely, voluntarily and intelligently entered
into the extrajudicial confession in full compliance with the Miranda doctrine under Art. III, Sec. 12,
par. 1 of the Constitution in relation to Rep. Act No. 7438, Sec. 2. SPO2 Wilfredo Abello Giducos,
prior to conducting his investigation, explained to appellant his constitutional rights in the Visayan
dialect, notably Cebuano, a language known to the appellant, viz:27
PASIUNA (PRELIMINARY) : Ikaw karon Dindo Mojello ubos sa usa ka inbestigasyon diin
ikaw gituhon nga adunay kalabutan sa kamatayon ni LENLEN RAYCO ug nahitabong
paglugos kaniya. Ubos sa atong Batakang Balaod, ikaw adunay katungod sa pagpakahilom
ning maong inbesigasyon karon kanimo ug aduna usab ikaw ug katungod nga katabangan

ug usa ka abogado nga motabang karon kanimo ning maong inbestigasyon. Imo ba
nasabtan kining tanan? (DINDO MOJELLO, you are hereby reminded that you are under
investigation in which you were suspected about the death and raping of LENLEN RAYCO.
Under the Constitution you have the right to remain silent about this investigation on you now
and you have also the right to have counsel of your own choice to assist you in this
investigation now. Have you understood everything?)
TUBAG (ANSWER) : Oo, sir. (Yes, sir.)
PANGUTANA (QUESTION) : Human ikaw sayri sa imong katungod ubos sa atong Batakang
Balaod sa pagpakahilom, gusto ba nimo nga ipadayon nato kining inbestigasyon karon
kanimo? (After you have been apprised of your rights under our Constitution to remain silent,
do you want to proceed this investigation on you now?)
TUBAG (QUESTION) : Oo, sir. (Yes, sir.)
PANGUTANA (QUESTION) : Gusto ba usab nimo ug abogado nga makatabang kanimo ning
maong inbestigasyon? (Do you want counsel to assist you in this said investigation?)
TUBAG (ANSWER) : Oo, sir. (Yes, sir.)
APPEARANCE : Atty. Isaias Giduquio is appearing as counsel of the affiant.
PANGUTANA (QUESTION) : Ako usab ikaw pahinumdoman nga unsa man ang imo isulti
karon dinhi magamit pabor o batok kanimo sa Hukmanan, nasabtan ba nimo kining tanan
mo nga mga katungod nga walay naghulga, nagpugos o nagdagmal kanimo o nagsaad ba
ug ganti sa kaulihan? (You are also hereby reminded that all your statements now will be
used as evidence against or in your favor in any court of justice. Have you understood all
your rights with nobody coercing or forcing you, or mauling or promising a reward in the
end?)
TUBAG (ANSWER) : Oo (Yes.)
PANGUTANA (QUESTION) : Andam ka nga mohatag ug libre ug boluntaryo nga
pamahayag? (Are you now ready to give your free and voluntary statement?)
TUBAG (ANSWER) : Oo, sir. (Yes, sir.)
xxx

xxx

xxx

xxx

x x x.

(START OF CUSTODIAL INVESTIGATION)

xxx

The trial court observed that as to the confession of appellant, he was fully apprised of his
constitutional rights to remain silent and his right to counsel, as contained in such
confession.28 Appellant was properly assisted by Atty. Isaias Giduquio. The extrajudicial confession
of appellant was subscribed and sworn to before Judge Cornelio T. Jaca, Municipal Judge of
Medellin-Daanbantayan and acting Judge of MCTC Sta. Fe-Bantayan and Madredijos. Judge Jaca
declared that he explained to the appellant the contents of the extrajudicial confession and asked if

he understood it. He subsequently acknowledged that when appellant subscribed to his statement,
Atty. Giduquio, witness Batobalonos and his Clerk of Court were present as well as other people. 29
The extrajudicial confession executed by the appellant followed the rigid requirements of the
Miranda doctrine; consequently, it is admissible as evidence. The lower court was correct in giving
credence to the extrajudicial confession of the appellant.
On cross-examination, appellant Mojello claimed his life was threatened, thereby inducing him to
execute an extrajudicial confession, yet he neither filed any case against the person who
threatened him, nor he report this to his counsel. He further claimed that he did not understand
the contents of the confession which was read in the Visayan dialect, yet he admits that he uses
the Visayan dialect in his daily discourse.
In People v. Pia,30 we held that "where appellants did not present evidence of compulsion or duress
or violence on their persons; where they failed to complain to officers who administered the oaths;
where they did not institute any criminal or administrative action against their alleged maltreatment;
where there appears no marks of violence on their bodies and where they did not have themselves
examined by a reputable physician to buttress their claim, all these should be considered as factors
indicating voluntariness of confessions." The failure of the appellant to complain to the swearing
officer or to file charges against the persons who allegedly maltreated him, although he had all the
chances to do so, manifests voluntariness in the execution of his confessions. 31 To hold otherwise is
to facilitate the retraction of his statements at the mere allegation of threat, torture, coercion,
intimidation or inducement, without any proof whatsoever. People v. Enanoria further declared that
another indicium of voluntariness is the disclosure of details in the confession which could have
been known only to the declarant.32
The confessant bears the burden of proof that his confession is tainted with duress, compulsion or
coercion by substantiating his claim with independent evidence other than his own self-serving
claims that the admissions in his affidavit are untrue and unwillingly executed. 33 Bare assertions will
certainly not suffice to overturn the presumption.34
The test for determining whether a confession is voluntary is whether the defendant's will was
overborne at the time he confessed.35 In cases where the Miranda warnings have been given, the
test of voluntariness should be subsequently applied in order to determine the probative weight of
the confession.
Accordingly, the presumption of voluntariness of appellant's confession remains unrebutted by his
failure to present independent evidence that the same was coerced.
It cannot be gainsaid that the constitutional duty of law enforcement officers is to ensure that a
suspect has been properly apprised of his Miranda rights, including the right to counsel. It is in the
paramount public interest that the foundation of an effective administration of criminal justice relies
on the faithful adherence to the Miranda doctrine. Compliance with Art. III, Sec. 12, par. 1 by police
authorities is central to the criminal justice system; Miranda rights must in every case be respected,
without exception.
Thus, the confession, having strictly complied with the constitutional requirements under Art. III, Sec.
12, par. 1, is deemed admissible in evidence against appellant. It follows that the admission of
culpability made therein is admissible. It is therefore not "fruit of the poisonous tree" since the tree
itself is not poisonous.

Appellant also alleges that the lower court gravely erred in holding him guilty beyond reasonable
doubt of the crime of rape with homicide, thereby sentencing him to suffer the death penalty despite
the glaring insufficiency of circumstantial evidence against him. In his Brief, he argues that the
evidence against him is insufficient to warrant his conviction of rape with homicide.
The categorical admission of the appellant to the crime of rape, coupled with the corpus delicti as
established by the Medico-Legal Report and the testimony of Rogelio Rayco, leads us to no other
conclusion than that of appellant's guilt for the rape of Lenlen Rayco on December 15, 1996. It
passes the test of moral certainty and must therefore be sustained.
However, the records do not adequately show that appellant admitted to killing the victim. Neither is
the circumstantial evidence sufficient to establish that by reason or on the occasion of the rape a
homicide was committed by the appellant. The lack of physical evidence further precludes us from
connecting the slaying of the victim to her sexual assault, given the quantum of proof required by law
for conviction. No estimated time of death was given, which is essential in making a connection with
the appellant's story that he went home after a night of drinking. The time when he and the victim
were headed towards the seashore at or about 9:00 to 10:00 p.m. of December 15, 1996 until the
time when the victim's lifeless body was found at or about 4:00 a.m. of December 16, 1996 had a
time variance of between six to seven hours. Although the circumstances may point to the appellant
as the most likely perpetrator of the homicide, the same do not constitute an unbroken chain of
events which would lead us to a reasonable conclusion that appellant was guilty of killing the victim.
In other words, there are gaps in the reconstruction of facts and inferences surrounding the death of
Lenlen. Appellant only admitted to boxing the victim when she shouted, then hurriedly ran away. The
cause of death of Lenlen was cardio-respiratory attack due to asphyxiation and physical injuries; she
was strangled to death and left on the seashore as manifested by the frothing in her lungs. No
physical, scientific or DNA evidence was presented to pinpoint appellant as the person who killed the
victim. Fingerprints, if available, would have determined who committed the homicide. Thus,
appellant cannot be convicted of rape with homicide considering the insufficiency of evidence which
thereby created a reasonable doubt as to his guilt for the said special complex crime.
Appellant should instead be held liable only for the crime of statutory rape, the victim Lenlen Rayco
being then eleven years old. The sexual assault was necessarily included in the special complex
crime charged in the Information dated May 22, 1997.
The trial court should have awarded damages to the heirs of the victim. Civil indemnity in the amount
of P50,000.00 is awarded upon the finding of the fact of rape. 36 Moral damages in the amount of
P50,000.00 may likewise be given to the heirs of the victim without need of proof in accordance with
current jurisprudence.37
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Bogo, Cebu,
Branch 61 in Criminal Case No. B-00224 is AFFIRMED with MODIFICATION. Appellant Dindo
Mojello is found guilty beyond reasonable doubt of the crime of statutory rape and sentenced to
suffer the penalty of reclusion perpetua. He is also ordered to pay the heirs of the victim, Lenlen
Rayco, P50,000.00 as civil indemnity and P50,000.00 as moral damages.
Costs de oficio.
SO ORDERED.
G.R. No. L-19550

June 19, 1967

HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL BECK, petitioners,
vs.
HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE LUKBAN, in his
capacity as Acting Director, National Bureau of Investigation; SPECIAL PROSECUTORS
PEDRO D. CENZON, EFREN I. PLANA and MANUEL VILLAREAL, JR. and ASST. FISCAL
MANASES G. REYES; JUDGE AMADO ROAN, Municipal Court of Manila; JUDGE ROMAN
CANSINO, Municipal Court of Manila; JUDGE HERMOGENES CALUAG, Court of First
Instance of Rizal-Quezon City Branch, and JUDGE DAMIAN JIMENEZ, Municipal Court of
Quezon City, respondents.
Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan T. David for petitioners.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro,
Assistant Solicitor General Frine C. Zaballero, Solicitor Camilo D. Quiason and Solicitor C. Padua for
respondents.
CONCEPCION, C.J.:
Upon application of the officers of the government named on the margin1 hereinafter referred to
as Respondents-Prosecutors several judges2 hereinafter referred to as Respondents-Judges
issued, on different dates,3 a total of 42 search warrants against petitioners herein4 and/or the
corporations of which they were officers,5 directed to the any peace officer, to search the persons
above-named and/or the premises of their offices, warehouses and/or residences, and to seize and
take possession of the following personal property to wit:
Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals,
portfolios, credit journals, typewriters, and other documents and/or papers showing all
business transactions including disbursements receipts, balance sheets and profit and loss
statements and Bobbins (cigarette wrappers).
as "the subject of the offense; stolen or embezzled and proceeds or fruits of the offense," or "used or
intended to be used as the means of committing the offense," which is described in the applications
adverted to above as "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue
(Code) and the Revised Penal Code."
Alleging that the aforementioned search warrants are null and void, as contravening the Constitution
and the Rules of Court because, inter alia: (1) they do not describe with particularity the
documents, books and things to be seized; (2) cash money, not mentioned in the warrants, were
actually seized; (3) the warrants were issued to fish evidence against the aforementioned petitioners
in deportation cases filed against them; (4) the searches and seizures were made in an illegal
manner; and (5) the documents, papers and cash money seized were not delivered to the courts that
issued the warrants, to be disposed of in accordance with law on March 20, 1962, said petitioners
filed with the Supreme Court this original action for certiorari, prohibition, mandamus and injunction,
and prayed that, pending final disposition of the present case, a writ of preliminary injunction be
issued restraining Respondents-Prosecutors, their agents and /or representatives from using the
effects seized as aforementioned or any copies thereof, in the deportation cases already adverted
to, and that, in due course, thereafter, decision be rendered quashing the contested search warrants

and declaring the same null and void, and commanding the respondents, their agents or
representatives to return to petitioners herein, in accordance with Section 3, Rule 67, of the Rules of
Court, the documents, papers, things and cash moneys seized or confiscated under the search
warrants in question.
In their answer, respondents-prosecutors alleged, 6 (1) that the contested search warrants are valid
and have been issued in accordance with law; (2) that the defects of said warrants, if any, were
cured by petitioners' consent; and (3) that, in any event, the effects seized are admissible in
evidence against herein petitioners, regardless of the alleged illegality of the aforementioned
searches and seizures.
On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in the petition.
However, by resolution dated June 29, 1962, the writ was partially lifted or dissolved, insofar as the
papers, documents and things seized from the offices of the corporations above mentioned are
concerned; but, the injunction was maintained as regards the papers, documents and things found
and seized in the residences of petitioners herein.7
Thus, the documents, papers, and things seized under the alleged authority of the warrants in
question may be split into two (2) major groups, namely: (a) those found and seized in the offices of
the aforementioned corporations, and (b) those found and seized in the residences of petitioners
herein.
As regards the first group, we hold that petitioners herein have no cause of action to assail the
legality of the contested warrants and of the seizures made in pursuance thereof, for the simple
reason that said corporations have their respective personalities, separate and distinct from the
personality of herein petitioners, regardless of the amount of shares of stock or of the interest of
each of them in said corporations, and whatever the offices they hold therein may be. 8 Indeed, it is
well settled that the legality of a seizure can be contested only by the party whose rights have been
impaired thereby,9 and that the objection to an unlawful search and seizure is purely personal and
cannot be availed of by third parties. 10 Consequently, petitioners herein may not validly object to the
use in evidence against them of the documents, papers and things seized from the offices and
premises of the corporations adverted to above, since the right to object to the admission of said
papers in evidence belongsexclusively to the corporations, to whom the seized effects belong, and
may not be invoked by the corporate officers in proceedings against them in their individual
capacity. 11 Indeed, it has been held:
. . . that the Government's action in gaining possession of papers belonging to
the corporation did not relate to nor did it affect the personal defendants. If these papers
were unlawfully seized and thereby the constitutional rights of or any one were invaded, they
were the rights of the corporation and not the rights of the other defendants. Next, it is clear
that a question of the lawfulness of a seizure can be raised only by one whose rights have
been invaded. Certainly, such a seizure, if unlawful, could not affect the constitutional rights
of defendants whose property had not been seized or the privacy of whose homes had not
been disturbed; nor could they claim for themselves the benefits of the Fourth Amendment,
when its violation, if any, was with reference to the rights of another. Remus vs. United
States (C.C.A.)291 F. 501, 511. It follows, therefore, that the question of the admissibility of

the evidence based on an alleged unlawful search and seizure does not extend to the
personal defendants but embraces only the corporation whose property was taken. . . . (A
Guckenheimer & Bros. Co. vs. United States, [1925] 3 F. 2d. 786, 789, Emphasis supplied.)
With respect to the documents, papers and things seized in the residences of petitioners herein, the
aforementioned resolution of June 29, 1962, lifted the writ of preliminary injunction previously issued
by this Court,12 thereby, in effect, restraining herein Respondents-Prosecutors from using them in
evidence against petitioners herein.
In connection with said documents, papers and things, two (2) important questions need be settled,
namely: (1) whether the search warrants in question, and the searches and seizures made under the
authority thereof, are valid or not, and (2) if the answer to the preceding question is in the negative,
whether said documents, papers and things may be used in evidence against petitioners herein.
1wph1.t

Petitioners maintain that the aforementioned search warrants are in the nature of general warrants
and that accordingly, the seizures effected upon the authority there of are null and void. In this
connection, the Constitution13 provides:
The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but
upon probable cause, to be determined 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.
Two points must be stressed in connection with this constitutional mandate, namely: (1) that no
warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth
in said provision; and (2) that the warrant shall particularly describe the things to be seized.
None of these requirements has been complied with in the contested warrants. Indeed, the same
were issued upon applications stating that the natural and juridical person therein named had
committed a "violation of Central Ban Laws, Tariff and Customs Laws, Internal Revenue (Code) and
Revised Penal Code." In other words, nospecific offense had been alleged in said applications. The
averments thereof with respect to the offense committed were abstract. As a consequence, it
was impossible for the judges who issued the warrants to have found the existence of probable
cause, for the same presupposes the introduction of competent proof that the party against whom it
is sought has performed particular acts, or committed specific omissions, violating a given provision
of our criminal laws. As a matter of fact, the applications involved in this case do not allege any
specific acts performed by herein petitioners. It would be the legal heresy, of the highest order, to
convict anybody of a "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue
(Code) and Revised Penal Code," as alleged in the aforementioned applications without
reference to any determinate provision of said laws or
To uphold the validity of the warrants in question would be to wipe out completely one of the most
fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile and
the privacy of communication and correspondence at the mercy of the whims caprice or passion of
peace officers. This is precisely the evil sought to be remedied by the constitutional provision above

quoted to outlaw the so-called general warrants. It is not difficult to imagine what would happen,
in times of keen political strife, when the party in power feels that the minority is likely to wrest it,
even though by legal means.
Such is the seriousness of the irregularities committed in connection with the disputed search
warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of
Court 14 by providing in its counterpart, under the Revised Rules of Court 15 that "a search warrant
shall not issue but upon probable cause in connection with one specific offense." Not satisfied with
this qualification, the Court added thereto a paragraph, directing that "no search warrant shall issue
for more than one specific offense."
The grave violation of the Constitution made in the application for the contested search warrants was
compounded by the description therein made of the effects to be searched for and seized, to wit:
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.
Thus, 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 objective: the elimination of general warrants.
Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors maintain that, even
if the searches and seizures under consideration were unconstitutional, the documents, papers and
things thus seized are admissible in evidence against petitioners herein. Upon mature deliberation,
however, we are unanimously of the opinion that the position taken in the Moncado case must be
abandoned. Said position was in line with the American common law rule, that the criminal should
not be allowed to go free merely "because the constable has blundered," 16 upon the theory that the
constitutional prohibition against unreasonable searches and seizures is protected by means other
than the exclusion of evidence unlawfully obtained, 17 such as the common-law action for damages
against the searching officer, against the party who procured the issuance of the search warrant and
against those assisting in the execution of an illegal search, their criminal punishment, resistance,
without liability to an unlawful seizure, and such other legal remedies as may be provided by other
laws.
However, most common law jurisdictions have already given up this approach and eventually
adopted the exclusionary rule, realizing that this is the only practical means of enforcing the
constitutional injunction against unreasonable searches and seizures. In the language of Judge
Learned Hand:
As we understand it, the reason for the exclusion of evidence competent as such, which has
been unlawfully acquired, is that exclusion is the only practical way of enforcing the

constitutional privilege. In earlier times the action of trespass against the offending official
may have been protection enough; but that is true no longer. Only in case the prosecution
which itself controls the seizing officials, knows that it cannot profit by their wrong will that
wrong be repressed.18
In fact, over thirty (30) years before, the Federal Supreme Court had already declared:
If letters and private documents can thus be seized and held and used in evidence against a
citizen accused of an offense, the protection of the 4th Amendment, declaring his rights to be
secure against such searches and seizures, is of no value, and, so far as those thus placed
are concerned, might as well be stricken from the Constitution. The efforts of the courts and
their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided
by the sacrifice of those great principles established by years of endeavor and suffering
which have resulted in their embodiment in the fundamental law of the land.19
This view was, not only reiterated, but, also, broadened in subsequent decisions on the same
Federal Court. 20After reviewing previous decisions thereon, said Court held, in Mapp vs.
Ohio (supra.):
. . . Today we once again examine the Wolf's constitutional documentation of the right of
privacy free from unreasonable state intrusion, and after its dozen years on our books, are
led by it to close the only courtroom door remaining open to evidence secured by official
lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific
guarantee against that very same unlawful conduct. We hold that all evidence obtained by
searches and seizures in violation of the Constitution is, by that same authority, inadmissible
in a State.
Since the Fourth Amendment's right of privacy has been declared enforceable against the
States through the Due Process Clause of the Fourteenth, it is enforceable against them by
the same sanction of exclusion as it used against the Federal Government. Were it
otherwise, then just as without the Weeks rule the assurance against unreasonable federal
searches and seizures would be "a form of words," valueless and underserving of mention in
a perpetual charter of inestimable human liberties, so too, without that rule the freedom from
state invasions of privacy would be so ephemeral and so neatly severed from its conceptual
nexus with the freedom from all brutish means of coercing evidence as not to permit this
Court's high regard as a freedom "implicit in the concept of ordered liberty." At the time that
the Court held in Wolf that the amendment was applicable to the States through the Due
Process Clause, the cases of this Court as we have seen, had steadfastly held that as to
federal officers the Fourth Amendment included the exclusion of the evidence seized in
violation of its provisions. Even Wolf "stoutly adhered" to that proposition. The right to when
conceded operatively enforceable against the States, was not susceptible of destruction by
avulsion of the sanction upon which its protection and enjoyment had always been deemed
dependent under the Boyd, Weeks and Silverthorne Cases. Therefore, in extending the
substantive protections of due process to all constitutionally unreasonable searches state
or federal it was logically and constitutionally necessarily that the exclusion doctrine an
essential part of the right to privacy be also insisted upon as an essential ingredient of the

right newly recognized by the Wolf Case. In short, the admission of the new constitutional
Right by Wolf could not tolerate denial of its most important constitutional privilege, namely,
the exclusion of the evidence which an accused had been forced to give by reason of the
unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its privilege
and enjoyment. Only last year the Court itself recognized that the purpose of the
exclusionary rule to "is to deter to compel respect for the constitutional guaranty in the
only effectively available way by removing the incentive to disregard it" . . . .
The ignoble shortcut to conviction left open to the State tends to destroy the entire system of
constitutional restraints on which the liberties of the people rest. Having once recognized that
the right to privacy embodied in the Fourth Amendment is enforceable against the States,
and that the right to be secure against rude invasions of privacy by state officers is, therefore
constitutional in origin, we can no longer permit that right to remain an empty promise.
Because it is enforceable in the same manner and to like effect as other basic rights secured
by its Due Process Clause, we can no longer permit it to be revocable at the whim of any
police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment.
Our decision, founded on reason and truth, gives to the individual no more than that which
the Constitution guarantees him to the police officer no less than that to which honest law
enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true
administration of justice. (emphasis ours.)
Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the spirit of the
constitutional injunction against unreasonable searches and seizures. To be sure, if the applicant for
a search warrant has competent evidence to establish probable cause of the commission of a given
crime by the party against whom the warrant is intended, then there is no reason why the applicant
should not comply with the requirements of the fundamental law. Upon the other hand, if he has no
such competent evidence, then it is not possible for the Judge to find that there is probable cause,
and, hence, no justification for the issuance of the warrant. The only possible explanation (not
justification) for its issuance is the necessity of fishing evidence of the commission of a crime. But,
then, this fishing expedition is indicative of the absence of evidence to establish a probable cause.
Moreover, the theory that the criminal prosecution of those who secure an illegal search warrant
and/or make unreasonable searches or seizures would suffice to protect the constitutional guarantee
under consideration, overlooks the fact that violations thereof are, in general, committed By agents
of the party in power, for, certainly, those belonging to the minority could not possibly abuse a power
they do not have. Regardless of the handicap under which the minority usually but,
understandably finds itself in prosecuting agents of the majority, one must not lose sight of the
fact that the psychological and moral effect of the possibility 21 of securing their conviction, is watered
down by the pardoning power of the party for whose benefit the illegality had been committed.
In their Motion for Reconsideration and Amendment of the Resolution of this Court dated June 29,
1962, petitioners allege that Rooms Nos. 81 and 91 of Carmen Apartments, House No. 2008, Dewey
Boulevard, House No. 1436, Colorado Street, and Room No. 304 of the Army-Navy Club, should be
included among the premises considered in said Resolution as residences of herein petitioners,
Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl Beck, respectively, and that,
furthermore, the records, papers and other effects seized in the offices of the corporations above

referred to include personal belongings of said petitioners and other effects under their exclusive
possession and control, for the exclusion of which they have a standing under the latest rulings of
the federal courts of federal courts of the United States. 22
We note, however, that petitioners' theory, regarding their alleged possession of and control over the
aforementioned records, papers and effects, and the alleged "personal" nature thereof, has Been
Advanced, notin their petition or amended petition herein, but in the Motion for Reconsideration and
Amendment of the Resolution of June 29, 1962. In other words, said theory would appear to be
readjustment of that followed in said petitions, to suit the approach intimated in the Resolution
sought to be reconsidered and amended. Then, too, some of the affidavits or copies of alleged
affidavits attached to said motion for reconsideration, or submitted in support thereof, contain either
inconsistent allegations, or allegations inconsistent with the theory now advanced by petitioners
herein.
Upon the other hand, we are not satisfied that the allegations of said petitions said motion for
reconsideration, and the contents of the aforementioned affidavits and other papers submitted in
support of said motion, have sufficiently established the facts or conditions contemplated in the
cases relied upon by the petitioners; to warrant application of the views therein expressed, should
we agree thereto. At any rate, we do not deem it necessary to express our opinion thereon, it being
best to leave the matter open for determination in appropriate cases in the future.
We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby,
abandoned; that the warrants for the search of three (3) residences of herein petitioners, as
specified in the Resolution of June 29, 1962, are null and void; that the searches and seizures
therein made are illegal; that the writ of preliminary injunction heretofore issued, in connection with
the documents, papers and other effects thus seized in said residences of herein petitioners is
hereby made permanent; that the writs prayed for are granted, insofar as the documents, papers
and other effects so seized in the aforementioned residences are concerned; that the
aforementioned motion for Reconsideration and Amendment should be, as it is hereby, denied; and
that the petition herein is dismissed and the writs prayed for denied, as regards the documents,
papers and other effects seized in the twenty-nine (29) places, offices and other premises
enumerated in the same Resolution, without special pronouncement as to costs.
It is so ordered.
Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar an

[G.R. Nos. 133254-55. April 19, 2001]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO

SALANGUIT y KO, accused-appellant.
DECISION
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.
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 guilty,
[4]
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 warrant [5] in the Regional
Trial Court, Branch 90, Dasmarias, Cavite, to search the residence of accusedappellant 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 accused-appellants room, and Badua saw that the shabu was taken by
accused-appellant 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 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 heat-sealed transparent
plastic bags containing a white crystalline substance, a paper clip box also containing
a white crystalline substance, and two bricks of dried leaves which appeared to be
marijuana wrapped in newsprint[9] 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 accused-appellant 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-appellants 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.

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 HYDROCHLORIDE (SHABU)
THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSEDAPPELLANT 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 Procedure [21] 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 WARRANT NO. 160
For: Violation of RA 6425
SEARCH WARRANT
TO ANY PEACE OFFICER:
GREETINGS:
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.
You are hereby commanded to make an immediate search anytime of the day/night of
the premises above-described and forthwith seize and take possession of the abovestated 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.

(SGD.) DOLORES L. ESPAOL

Judge
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 orshabu. 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?
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.
Q - Do you know the person who occupies the specific place?
A - Yes, sir, he is ROBERT SALANGUIT @ Robert.
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?
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.
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 Dec. 95.
Q - Do you have anything more to add or retract from your statement?
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]

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 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-appellants 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. Dichoso[29] 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:
Appellants 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 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.
Particularity 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
appellants 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 Aguilars place is at the end of appellants
place in Binhagan. Moreover, the house raided by Aguilars team is undeniably
appellants 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 accusedappellants 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.
In sum, we hold that with respect to the seizure of shabu from accused-appellants
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 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-appellants 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. [38] 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-appellants 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. Musa[39] in which we declared
inadmissible the marijuana recovered by NARCOM agents because the said drugs
were contained in a 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

officers 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 accusedappellant. However, the confiscation of the drug must be upheld.
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 Procedure [42] 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-appellants 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 accusedappellant to attest to the truth of his claim.

In contrast, Aguilar and Duanos claim that they had to use some force in order to
gain entry cannot be doubted. The occupants of the house, especially accusedappellant, 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 partys
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 accusedappellant 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 P700,000.00 is hereby REVERSED and SET ASIDE
and accused-appellant 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, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.
G.R. No. L-32409. February 27, 1971.]
BACHE & CO. (PHIL.), INC. and FREDERICK E. SEGGERMAN, Petitioners, v. HON. JUDGE VIVENCIO
M. RUIZ, MISAEL P. VERA, in his capacity as Commissioner of Internal Revenue, ARTURO
LOGRONIO, RODOLFO DE LEON, GAVINO VELASQUEZ, MIMIR DELLOSA, NICANOR ALCORDO,
JOHN DOE, JOHN DOE, JOHN DOE, and JOHN DOE, Respondents.
San Juan, Africa, Gonzales & San Agustin, for Petitioners.
Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V . Bautista, Solicitor Pedro
A. Ramirez and Special Attorney Jaime M. Maza for Respondents.

DECISION

VILLAMOR, J.:

This is an original action of certiorari, prohibition and mandamus, with prayer for a writ of preliminary
mandatory and prohibitory injunction. In their petition Bache & Co. (Phil.), Inc., a corporation duly organized
and existing under the laws of the Philippines, and its President, Frederick E. Seggerman, pray this Court to
declare null and void Search Warrant No. 2-M-70 issued by respondent Judge on February 25, 1970; to
order respondents to desist from enforcing the same and/or keeping the documents, papers and effects
seized by virtue thereof, as well as from enforcing the tax assessments on petitioner corporation alleged by
petitioners to have been made on the basis of the said documents, papers and effects, and to order the
return of the latter to petitioners. We gave due course to the petition but did not issue the writ of
preliminary injunction prayed for therein.
The pertinent facts of this case, as gathered from record, are as follows:

chanrob1es virtual 1aw library

On February 24, 1970, respondent Misael P. Vera, Commissioner of Internal Revenue, wrote a letter
addressed to respondent Judge Vivencio M. Ruiz requesting the issuance of a search warrant against
petitioners for violation of Section 46(a) of the National Internal Revenue Code, in relation to all other
pertinent provisions thereof, particularly Sections 53, 72, 73, 208 and 209, and authorizing Revenue
Examiner Rodolfo de Leon, one of herein respondents, to make and file the application for search warrant
which was attached to the letter.
In the afternoon of the following day, February 25, 1970, respondent De Leon and his witness, respondent
Arturo Logronio, went to the Court of First Instance of Rizal. They brought with them the following papers:
respondent Veras aforesaid letter-request; an application for search warrant already filled up but still
unsigned by respondent De Leon; an affidavit of respondent Logronio subscribed before respondent De
Leon; a deposition in printed form of respondent Logronio already accomplished and signed by him but not
yet subscribed; and a search warrant already accomplished but still unsigned by respondent Judge.
At that time respondent Judge was hearing a certain case; so, by means of a note, he instructed his Deputy
Clerk of Court to take the depositions of respondents De Leon and Logronio. After the session had
adjourned, respondent Judge was informed that the depositions had already been taken. The stenographer,
upon request of respondent Judge, read to him her stenographic notes; and thereafter, respondent Judge
asked respondent Logronio to take the oath and warned him that if his deposition was found to be false and
without legal basis, he could be charged for perjury. Respondent Judge signed respondent de Leons
application for search warrant and respondent Logronios deposition, Search Warrant No. 2-M-70 was then
sign by respondent Judge and accordingly issued.
Three days later, or on February 28, 1970, which was a Saturday, the BIR agents served the search warrant
petitioners at the offices of petitioner corporation on Ayala Avenue, Makati, Rizal. Petitioners lawyers
protested the search on the ground that no formal complaint or transcript of testimony was attached to the
warrant. The agents nevertheless proceeded with their search which yielded six boxes of documents.
On March 3, 1970, petitioners filed a petition with the Court of First Instance of Rizal praying that the search
warrant be quashed, dissolved or recalled, that preliminary prohibitory and mandatory writs of injunction be
issued, that the search warrant be declared null and void, and that the respondents be ordered to pay
petitioners, jointly and severally, damages and attorneys fees. On March 18, 1970, the respondents, thru
the Solicitor General, filed an answer to the petition. After hearing, the court, presided over by respondent
Judge, issued on July 29, 1970, an order dismissing the petition for dissolution of the search warrant. In the
meantime, or on April 16, 1970, the Bureau of Internal Revenue made tax assessments on petitioner
corporation in the total sum of P2,594,729.97, partly, if not entirely, based on the documents thus seized.
Petitioners came to this Court.
The petition should be granted for the following reasons:

chanrob1es virtual 1aw library

1. Respondent Judge failed to personally examine the complainant and his witness.
The pertinent provisions of the Constitution of the Philippines and of the Revised Rules of Court are:

jgc:chanrobles.com .ph

"(3) The right of the people to be secure in their persons, houses, papers and effects against unreasonable

searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be
determined 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." (Art. III, Sec. 1, Constitution.)
"SEC. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon probable cause
in connection with one specific offense to be determined by the judge or justice of the peace 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.
"No search warrant shall issue for more than one specific offense.
"SEC. 4. Examination of the applicant. The judge or justice of the peace must, before issuing the warrant,
personally examine on oath or affirmation the complainant and any witnesses he may produce and take
their depositions in writing, and attach them to the record, in addition to any affidavits presented to him."
(Rule 126, Revised Rules of Court.)
The examination of the complainant and the witnesses he may produce, required by Art. III, Sec. 1, par. 3,
of the Constitution, and by Secs. 3 and 4, Rule 126 of the Revised Rules of Court, should be conducted by
the judge himself and not by others. The phrase "which shall be determined by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce," appearing in the said
constitutional provision, was introduced by Delegate Francisco as an amendment to the draft submitted by
the Sub-Committee of Seven. The following discussion in the Constitutional Convention (Laurel, Proceedings
of the Philippine Constitutional Convention, Vol. III, pp. 755-757) is enlightening:
jgc:chanroble s.com.ph

"SR. ORENSE. Vamos a dejar compaero los piropos y vamos al grano.

En los casos de una necesidad de actuar inmediatamente para que no se frusten los fines de la justicia
mediante el registro inmediato y la incautacion del cuerpo del delito, no cree Su Seoria que causaria cierta
demora el procedimiento apuntado en su enmienda en tal forma que podria frustrar los fines de la justicia o
si Su Seoria encuentra un remedio para esto casos con el fin de compaginar los fines de la justicia con los
derechos del individuo en su persona, bienes etcetera, etcetera.
"SR. FRANCISCO. No puedo ver en la practica el caso hipottico que Su Seoria pregunta por la siguiente
razon: el que solicita un mandamiento de registro tiene que hacerlo por escrito y ese escrito no aparecer en
la Mesa del Juez sin que alguien vaya el juez a presentar ese escrito o peticion de sucuestro. Esa persona
que presenta el registro puede ser el mismo denunciante o alguna persona que solicita dicho mandamiento
de registro. Ahora toda la enmienda en esos casos consiste en que haya peticion de registro y el juez no se
atendra solamente a sea peticion sino que el juez examiner a ese denunciante y si tiene testigos tambin
examiner a los testigos.
"SR. ORENSE. No cree Su Seoria que el tomar le declaracion de ese denunciante por escrito siempre
requeriria algun tiempo?.
"SR. FRANCISCO. Seria cuestio de un par de horas, pero por otro lado minimizamos en todo lo posible las
vejaciones injustas con la expedicion arbitraria de los mandamientos de registro. Creo que entre dos males
debemos escoger. el menor.
x

"MR. LAUREL. . . . The reason why we are in favor of this amendment is because we are incorporating in our
constitution something of a fundamental character. Now, before a judge could issue a search warrant, he
must be under the obligation to examine personally under oath the complainant and if he has any witness,
the witnesses that he may produce . . ."
cralaw virtua1aw library

The implementing rule in the Revised Rules of Court, Sec. 4, Rule 126, is more emphatic and candid, for it
requires the judge, before issuing a search warrant, to "personally examine on oath or affirmation the
complainant and any witnesses he may produce . . ."
cralaw virtua1aw library

Personal examination by the judge of the complainant and his witnesses is necessary to enable him to
determine the existence or non-existence of a probable cause, pursuant to Art. III, Sec. 1, par. 3, of the

Constitution, and Sec. 3, Rule 126 of the Revised Rules of Court, both of which prohibit the issuance of
warrants except "upon probable cause." The determination of whether or not a probable cause exists calls
for the exercise of judgment after a judicial appraisal of facts and should not be allowed to be delegated in
the absence of any rule to the contrary.
In the case at bar, no personal examination at all was conducted by respondent Judge of the complainant
(respondent De Leon) and his witness (respondent Logronio). While it is true that the complainants
application for search warrant and the witness printed-form deposition were subscribed and sworn to before
respondent Judge, the latter did not ask either of the two any question the answer to which could possibly
be the basis for determining whether or not there was probable cause against herein petitioners. Indeed, the
participants seem to have attached so little significance to the matter that notes of the proceedings before
respondent Judge were not even taken. At this juncture it may be well to recall the salient facts. The
transcript of stenographic notes (pp. 61-76, April 1, 1970, Annex J-2 of the Petition) taken at the hearing of
this case in the court below shows that per instruction of respondent Judge, Mr. Eleodoro V. Gonzales,
Special Deputy Clerk of Court, took the depositions of the complainant and his witness, and that
stenographic notes thereof were taken by Mrs. Gaspar. At that time respondent Judge was at the sala
hearing a case. After respondent Judge was through with the hearing, Deputy Clerk Gonzales, stenographer
Gaspar, complainant De Leon and witness Logronio went to respondent Judges chamber and informed the
Judge that they had finished the depositions. Respondent Judge then requested the stenographer to read to
him her stenographic notes. Special Deputy Clerk Gonzales testified as follows:
jgc:chanrobles.com .ph

"A And after finishing reading the stenographic notes, the Honorable Judge requested or instructed them,
requested Mr. Logronio to raise his hand and warned him if his deposition will be found to be false and
without legal basis, he can be charged criminally for perjury. The Honorable Court told Mr. Logronio whether
he affirms the facts contained in his deposition and the affidavit executed before Mr. Rodolfo de Leon.
"Q And thereafter?
"A And thereafter, he signed the deposition of Mr. Logronio.
"Q Who is this he?
"A The Honorable Judge.
"Q The deposition or the affidavit?
"A The affidavit, Your Honor."

cralaw virtua1aw library

Thereafter, respondent Judge signed the search warrant.

The participation of respondent Judge in the proceedings which led to the issuance of Search Warrant No. 2M-70 was thus limited to listening to the stenographers readings of her notes, to a few words of warning
against the commission of perjury, and to administering the oath to the complainant and his witness. This
cannot be consider a personal examination. If there was an examination at all of the complainant and his
witness, it was the one conducted by the Deputy Clerk of Court. But, as stated, the Constitution and the
rules require a personal examination by the judge. It was precisely on account of the intention of the
delegates to the Constitutional Convention to make it a duty of the issuing judge to personally examine the
complainant and his witnesses that the question of how much time would be consumed by the judge in
examining them came up before the Convention, as can be seen from the record of the proceedings quoted
above. The reading of the stenographic notes to respondent Judge did not constitute sufficient compliance
with the constitutional mandate and the rule; for by that manner respondent Judge did not have the
opportunity to observe the demeanor of the complainant and his witness, and to propound initial and followup questions which the judicial mind, on account of its training, was in the best position to conceive. These
were important in arriving at a sound inference on the all-important question of whether or not there was
probable cause.
2. The search warrant was issued for more than one specific offense.
Search Warrant No. 2-M-70 was issued for" [v]iolation of Sec. 46(a) of the National Internal Revenue Code
in relation to all other pertinent provisions thereof particularly Secs. 53, 72, 73, 208 and 209." The question
is: Was the said search warrant issued "in connection with one specific offense," as required by Sec. 3, Rule
126?

To arrive at the correct answer it is essential to examine closely the provisions of the Tax Code referred to
above. Thus we find the following:
chanrob1es virtual 1aw library

Sec. 46(a) requires the filing of income tax returns by corporations.

Sec. 53 requires the withholding of income taxes at source.
Sec. 72 imposes surcharges for failure to render income tax returns and for rendering false and fraudulent
returns.
Sec. 73 provides the penalty for failure to pay the income tax, to make a return or to supply the information
required under the Tax Code.
Sec. 208 penalizes" [a]ny person who distills, rectifies, repacks, compounds, or manufactures any article
subject to a specific tax, without having paid the privilege tax therefore, or who aids or abets in the conduct
of illicit distilling, rectifying, compounding, or illicit manufacture of any article subject to specific tax . . .,"
and provides that in the case of a corporation, partnership, or association, the official and/or employee who
caused the violation shall be responsible.
Sec. 209 penalizes the failure to make a return of receipts, sales, business, or gross value of output
removed, or to pay the tax due thereon.
The search warrant in question was issued for at least four distinct offenses under the Tax Code. The first is
the violation of Sec. 46(a), Sec. 72 and Sec. 73 (the filing of income tax returns), which are interrelated.
The second is the violation of Sec. 53 (withholding of income taxes at source). The third is the violation of
Sec. 208 (unlawful pursuit of business or occupation); and the fourth is the violation of Sec. 209 (failure to
make a return of receipts, sales, business or gross value of output actually removed or to pay the tax due
thereon). Even in their classification the six above-mentioned provisions are embraced in two different titles:
Secs. 46(a), 53, 72 and 73 are under Title II (Income Tax); while Secs. 208 and 209 are under Title V
(Privilege Tax on Business and Occupation).
Respondents argue that Stonehill, Et. Al. v. Diokno, Et Al., L-19550, June 19, 1967 (20 SCRA 383), is not
applicable, because there the search warrants were issued for "violation of Central Bank Laws, Internal
Revenue (Code) and Revised Penal Code;" whereas, here Search Warrant No 2-M-70 was issued for violation
of only one code, i.e., the National Internal Revenue Code. The distinction more apparent than real, because
it was precisely on account of the Stonehill incident, which occurred sometime before the present Rules of
Court took effect on January 1, 1964, that this Court amended the former rule by inserting therein the
phrase "in connection with one specific offense," and adding the sentence "No search warrant shall issue for
more than one specific offense," in what is now Sec. 3, Rule 126. Thus we said in Stonehill:
jgc:chanroble s.com.ph

"Such is the seriousness of the irregularities committed in connection with the disputed search warrants,
that this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of Court that a search
warrant shall not issue but upon probable cause in connection with one specific offense. Not satisfied with
this qualification, the Court added thereto a paragraph, directing that no search warrant shall issue for more
than one specific offense."
3. The search warrant does not particularly describe the things to be seized.
The documents, papers and effects sought to be seized are described in Search Warrant No. 2-M-70 in this
manner:
jgc:chanroble s.com.ph

"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."
cralaw virtua1aw library

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.
In Stonehill, this Court, speaking thru Mr. Chief Justice Roberto Concepcion, said:

jgc:chanrobles.com .ph

"The grave violation of the Constitution made in the application for the contested search warrants was
compounded by the description therein made of the effects to be searched for and seized, to wit:
chanrob1es virtual 1aw library

Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers, portfolios, credit
journals, typewriters, and other documents and/or paper showing all business transactions including
disbursement receipts, balance sheets and related profit and loss statements.
"Thus, 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 objective: the elimination of general warrants."
cralaw virtua1aw library

While the term "all business transactions" does not appear in Search Warrant No. 2-M-70, the said warrant
nevertheless tends to defeat the major objective of the Bill of Rights, i.e., the elimination of general
warrants, for the language used therein is so all-embracing as to include all conceivable records of petitioner
corporation, which, if seized, could possibly render its business inoperative.
In Uy Kheytin, Et. Al. v. 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:
jgc:chanrobles.com .ph

". . . Both the Jones Law (sec. 3) and General Orders No. 58 (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 this is the correct interpretation of this constitutional provision is
borne out by American authorities."
cralaw virtua1aw library

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 v. 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.
Respondents contend that certiorari does not lie because petitioners failed to file a motion for
reconsideration of respondent Judges order of July 29, 1970. The contention is without merit. In the first
place, when the questions raised before this Court are the same as those which were squarely raised in and
passed upon by the court below, the filing of a motion for reconsideration in said court before certiorari can
be instituted in this Court is no longer a prerequisite. (Pajo, etc., Et. Al. v. Ago, Et Al., 108 Phil., 905). In the
second place, the rule requiring the filing of a motion for reconsideration before an application for a writ
of certiorari can be entertained was never intended to be applied without considering the circumstances.
(Matutina v. Buslon, Et Al., 109 Phil., 140.) In the case at bar time is of the essence in view of the tax
assessments sought to be enforced by respondent officers of the Bureau of Internal Revenue against
petitioner corporation, On account of which immediate and more direct action becomes necessary. (Matute
v. Court of Appeals, Et Al., 26 SCRA 768.) Lastly, the rule does not apply where, as in this case, the
deprivation of petitioners fundamental right to due process taints the proceeding against them in the court
below not only with irregularity but also with nullity. (Matute v. Court of Appeals, Et Al., supra.)

It is next contended by respondents that a corporation is not entitled to protection against unreasonable
search and seizures. Again, we find no merit in the contention.
"Although, for the reasons above stated, we are of the opinion that an officer of a corporation which is
charged with a violation of a statute of the state of its creation, or of an act of Congress passed in the
exercise of its constitutional powers, cannot refuse to produce the books and papers of such corporation, we
do not wish to be understood as holding that a corporation is not entitled to immunity, under the 4th
Amendment, against unreasonable searches and seizures. A corporation is, after all, but an association of
individuals under an assumed name and with a distinct legal entity. In organizing itself as a collective body it
waives no constitutional immunities appropriate to such body. Its property cannot be taken without
compensation. It can only be proceeded against by due process of law, and is protected, under the 14th
Amendment, against unlawful discrimination . . ." (Hale v. Henkel, 201 U.S. 43, 50 L. ed. 652.)
"In Linn v. United States, 163 C.C.A. 470, 251 Fed. 476, 480, it was thought that a different rule applied to
a corporation, the ground that it was not privileged from producing its books and papers. But the rights of a
corporation against unlawful search and seizure are to be protected even if the same result might have been
achieved in a lawful way." (Silverthorne Lumber Company, Et. Al. v. United States of America, 251 U.S. 385,
64 L. ed. 319.)
In Stonehill, Et. Al. v. Diokno, Et Al., supra, this Court impliedly recognized the right of a corporation to
object against unreasonable searches and seizures, thus:
jgc:chanroble s.com.ph

"As regards the first group, we hold that petitioners herein have no cause of action to assail the legality of
the contested warrants and of the seizures made in pursuance thereof, for the simple reason that said
corporations have their respective personalities, separate and distinct from the personality of herein
petitioners, regardless of the amount of shares of stock or the interest of each of them in said corporations,
whatever, the offices they hold therein may be. Indeed, it is well settled that the legality of a seizure can be
contested only by the party whose rights have been impaired thereby, and that the objection to an unlawful
search and seizure is purely personal and cannot be availed of by third parties. Consequently, petitioners
herein may not validly object to the use in evidence against them of the documents, papers and things
seized from the offices and premises of the corporations adverted to above, since the right to object to the
admission of said papers in evidence belongs exclusively to the corporations, to whom the seized effects
belong, and may not be invoked by the corporate officers in proceedings against them in their individual
capacity . . ."
cralaw virtua1aw library

In the Stonehill case only the officers of the various corporations in whose offices documents, papers and
effects were searched and seized were the petitioners. In the case at bar, the corporation to whom the
seized documents belong, and whose rights have thereby been impaired, is itself a petitioner. On that score,
petitioner corporation here stands on a different footing from the corporations in Stonehill.
The tax assessments referred to earlier in this opinion were, if not entirely as claimed by petitioners at
least partly as in effect admitted by respondents based on the documents seized by virtue of Search
Warrant No. 2-M-70. Furthermore, the fact that the assessments were made some one and one-half months
after the search and seizure on February 25, 1970, is a strong indication that the documents thus seized
served as basis for the assessments. Those assessments should therefore not be enforced.
PREMISES CONSIDERED, the petition is granted. Accordingly, Search Warrant No. 2-M-70 issued by
respondent Judge is declared null and void; respondents are permanently enjoined from enforcing the said
search warrant; the documents, papers and effects seized thereunder are ordered to be returned to
petitioners; and respondent officials the Bureau of Internal Revenue and their representatives are
permanently enjoined from enforcing the assessments mentioned in Annex "G" of the present petition, as
well as other assessments based on the documents, papers and effects seized under the search warrant
herein nullified, and from using the same against petitioners in any criminal or other proceeding. No
pronouncement as to costs.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Fernando, Teehankee and Makasiar, JJ., concur.
Reyes, J.B.L., J., concurs with Mr. Justice Barredo.
Castro, J., concurs in the result.
Separate Opinions

BARREDO, J., concurring:

chanrob1es virtual 1aw library

I concur.
I agree with the ruling that the search warrants in question violates the specific injunction of Section 3, Rule
126 that "No search warrant shall issue for more than one specific offense." There is no question in my mind
that, as very clearly pointed out by Mr. Justice Villamor, the phrase "for violation of Section 46 (a) of the
National Internal Revenue Code in relation to all other pertinent provisions thereof, particularly Sections 53,
72, 73, 208 and 209" refers to more than one specific offense, considering that the violation of Section 53
which refers to withholding of income taxes at the sources, Section 208 which punishes pursuit of business
or occupation without payment of the corresponding specific or privilege taxes, and Section 209 which
penalizes failure to make a return of receipts sales, business or gross value output actually removed or to
pay the taxes thereon in connection with Title V on Privilege Taxes on Business and Occupation can hardly
be absorbed in a charge of alleged violation of Section 46(a), which merely requires the filing of income tax
returns by corporations, so as to constitute with it a single offense. I perceive here the danger that the
result of the search applied for may be used as basis not only for a charge of violating Section 46(a) but also
and separately of Section 53, 208 and 209. Of course, it is to be admitted that Sections 72 and 73, also
mentioned in the application, are really directly related to Section 46(a) because Section 72 provides for
surcharges for failure to render, returns and for rendering false and fraudulent returns and Section 73 refers
to the penalty for failure to file returns or to pay the corresponding tax. Taken together, they constitute one
single offense penalized under Section 73. I am not and cannot be in favor of any scheme which amounts to
an indirect means of achieving that which not allowed to be done directly. By merely saying that a party is
being charged with violation of one section of the code in relation to a number of other sections thereof
which in truth have no clear or direct bearing with the first is to me condemnable because it is no less than a
shotgun device which trenches on the basic liberties intended to be protected by the unequivocal limitations
imposed by the Constitution and the Rules of Court on the privilege to secure a search warrant with the
aggravating circumstance of being coupled with an attempt to mislead the judge before whom the
application for its issuance is presented.
I cannot close this brief concurrence without expressing my vehement disapproval of the action taken by
respondent internal revenue authorities in using the documents and papers secured during the search, the
legality of which was pending resolution by the court, as basis of an assessment, no matter how highly
motivated such action might have been. This smacks of lack of respect, if not contempt for the court and is
certainly intolerable. At the very least, it appears as an attempt to render the court proceedings moot and
academic, and dealing as this case does with constitutionally protected rights which are part and parcel of
the basic concepts of individual liberty and democracy, the government agents should have been the first
ones to refrain from trying to make a farce of these court proceedings. Indeed, it is to be regretted that the
government agents and the court have acted irregularly, for it is highly doubtful if it would be consistent with
the sacredness of the rights herein found to have been violated to permit the filing of another application
which complies with the constitutional requirements above discussed and the making of another search upon
the return of the papers and documents now in their illegal possession. This could be an instance wherein
taxes properly due the State will probably remain unassessed and unpaid only because the ones in charge of
the execution of the laws did not know how to respect basic constitutional rights and liberties.

Pendon vs. Court of Appeals, G.R. No. 84873, 191 SCRA 429 ,
November 16, 1990
G.R. No. 84873. November 16, 1990.*FIRST DIVISION.
ERLE PENDON, for himself and as Managing Partner of KENER TRADING
COMPANY, petitioner, vs. THE COURT OF APPEALS, HON. ENRIQUE T.
JOCSON in his capacity as Presiding Judge of Branch 47, Regional Trial Court
of Negros Occidental, FISCAL ALEXANDER N. MIRANO, in his capacity as City

Fiscal of Bacolod City and THE PROVINCIAL COMMANDER OF THE 331st PC

COMPANY, BACOLOD CITY, respondents.
Constitutional Law; Searches and Seizures; Search Warrant; Right against
unreasonable searches and seizures guaranteed under Article III, Section 2
of the 1987 Constitution.The right against unreason-able searches and
seizures is guaranteed under Article III (Bill of Rights), Section 2 of the 1987
Constitution of the Philippines.
Same; Same; Same; The issuance of a search warrant is justified only upon
a finding of probable cause; Probable cause defined; Requisites.Under the
above provision, 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 (Burgos, Sr. v. Chief of Staff, G.R. No. 64261, Dec. 26, 1984, 133
SCRA 800). In determining the existence of probable cause, it is required
that: 1) the judge (or) officer must examine the x x witnesses personally; 2)
the examination must be under oath; and (3) the examination must be
reduced to writing in the form of searching questions and answers.
Same; Same; Same; Same; The opinion or finding of probable cause must
to a certain degree be substantiated or supported by the record.It has
been ruled that the existence of probable cause depends to a large degree
upon the finding or opinion of the judge conducting the examination (Luna v.
Plaza, G.R. No. L-27511, Nov. 29, 1968), however, the opinion or finding of
probable cause must, to a certain degree, be substantiated or supported by
the record.
Same; Same; Same; Same; Same; Requirement mandated by the law and
the rules that the judge must personally examine the applicant and his
witnesses in the form of searching questions and answers before issuing the
warrant was not sufficiently complied with; Case at bar.In this case, We
find that the requirement mandated by the law and the rules that the judge
must personally examine the applicant and his witnesses in the form of
searching questions and answers before issuing the warrant, was not
sufficiently complied with. The applicant himself was not asked any
searching question by Judge Magallanes. The records disclose that the only
part played by the applicant, Lieutenant Rojas was to subscribe the
application before Judge Magallanes. The application contained pre-typed
questions, none of which stated that applicant had personal knowledge of a
robbery or a theft and that the proceeds thereof are in the possession and
control of the person against whom the search warrant was sought to be
issued.

Same; Same; Same; Same; Same; To establish probable cause, the

examination must be probing and exhaustive not merely routinary or pro
forma.It is axiomatic that the examination must be probing and
exhaustive, not merely routinary or pro forma, if the claimed probable cause
is to be established. 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.
Same; Same; Same; The law requires that the articles sought to be seized
must be described with particularity.Another infirmity of Search Warrant
No. 181 is its generality. The law requires that the articles sought to be
seized must be described with particularity. The items listed in the warrant,
to wit: NAPOCOR Galvanized bolts, grounding motor drive assembly,
aluminum wires and other NAPOCOR Towers parts and line accessories are
so general that the searching team can practically take half of the business
of Kener Trading, the premises searched. Kener Trading, as alleged in
petitioners petition before respondent Court of Appeals and which has not
been denied by respondent, is engaged in the business of buying and selling
scrap metals, second hand spare parts and accessories and empty bottles.
Same; Same; Same; Same; Items described in the application do not fall
under the list of personal property which may be seized under Section 2,
Rule 126 of the Rules on Criminal Procedure.Far more important is that the
items described in the application do not fall under the list of personal
property which may be seized under Section 2, Rule 126 of the Rules on
Criminal Procedure because neither the application nor the joint deposition
alleged that the item/s sought to be seized were: a) the subject of an
offense; b) stolen or embezzled property and other proceeds or fruits of an
offense; and c) used or intended to be used as a means of committing an
offense.
Same; Same; Same; In issuing a search warrant, the Judge must strictly
comply with the requirements of the Constitution and the Statutory
provisions.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.
Same; Same; Same; Use in evidence of the articles seized pursuant to an
invalid search warrant enjoined by Section 3 (2), Article III of the
Constitution; Return of the Articles seized to petitioner is proper.Finally, the
seized articles were described in the receipt issued by PC Sergeant Mamaril
as galvanized bolts, V-chuckle, U-bolts and 3 1/2 feet angular bar (p. 21,
Record). There is no showing that the possession thereof is prohibited by law
hence, the return thereof to petitioner is proper. Also, the use in evidence of

the articles seized pursuant to an invalid search warrant is enjoined by

Section 3(2), Article III of the Constitution.
PETITION for certiorari to review the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Ledesma, Guinez, Causing, Espino & Serfino Law Office for petitioner.
MEDIALDEA, J.:
This petition for review on certiorari seeks to set aside the decision (pp. 3842, Rollo) of respondent Court of Appeals which affirmed the orders dated
August 24, 1987 (p. 43, Record) and October 14, 1987, (pp. 53-54, Record)
of the Regional Trial Court of Negros Occidental in Criminal Case No. 5657.
On February 4, 1987, First Lieutenant Felipe L. Rojas, Officer-in-Charge of
the Philippine Constabulary-Criminal Investigation Service (PC-CIS), Bacolod
City, filed an application for a search warrant, alleging:
x x x.
That he was informed and verily believes that KENNETH SIAO who may be
found at KENER TRADING located at Rizal Street corner Lacson Street,
Bacolod City has/have in her/his/their possession and control the following
property/ies, to wit:
NAPOCOR Galvanized bolts, grounding motor drive assembly; aluminum
wires and other NAPOCOR Tower parts and line accessories
which he/she/they is/are concealing in the premises above mentioned.
The undersigned has verified the report and found it to be the fact and has
therefore reasons to believe that a SEARCH WARRANT should be issued to
enable the undersigned or any agent of the law to take possession and bring
the following described property/ies, to wit:
NAPOCOR Galvanized bolts; grounding motor drive assembly; aluminum
wires and other NAPOCOR Tower parts and line accessories.
WHEREFORE, the undersigned prays this Honorable Court to issue a
SEARCH WARRANT commanding any peace officer to search the
premises/house described in this application and to seize and bring to this
Honorable Court the person/property/ies above-mentioned to be dealt with
as the law may direct. Bacolod City, Philippines
Feb. 4, 1987 _______.
SGD. FELIPE L. ROJAS, JR.
ILT,

PC

OIC, PFOCIS, Bacolod City

(p. 18, Records)

The application was subscribed before Judge Demosthenes D. Magallanes of

the Municipal Trial Court of Bacolod City and supported by the joint
deposition of two (2) witnesses, Ignacio L. Reyes, an employee of NAPOCOR
(National Power Corporation) and IAI Eduardo Abaja of the CIS of Bacolod
City, quoted as follows:
We, Ignacio L. Reyes and IAI Eduardo Abaja, CIS after having been duly
sworn to, testify as follows:
1. QUESTION: What are your names and other personal circumstances?
ANSWER: IGNACIO L. REYES, 34 years old, married, an employee of
NAPOCOR and presently residing at Eroreco Subdivision, Bacolod City and
AIA EDUARDO ABAJA, CIS, regular member of the CO/INP CIS Command,
Bacolod City.
2. QUESTION: Do you know the premises/house of KEN-NETH SIAO located
at Rizal Street, near cor. Lacson St., Bacolod City?
ANSWER: Yes, Sir.
3. QUESTION: Do you have personal knowledge that said KENNETH SIAO
who may be found in the said premises/house has/ have in his/her/their
possession and control the following property, to wit:
NAPOCOR Galvanized bolts, grounding motor drive assembly, aluminum
wires and other NAPOCOR Tower parts and line accessories?
ANSWER: Yes, sir.
4. QUESTION: How do you know that above-described property/ies is/are
being kept in said premises /house?
ANSWER: We conducted surveillance and we were able to purchase some of
these items.
IN WITNESS WHEREOF, we hereunto set our hands and affixed our
signature this 4th day of Feb. 1987 at Bacolod City, Philippines.
SGD. IGNACIO L. REYES SGD. EDUARDO J. ABAJA
Affiant Affiant
SUBSCRIBED AND SWORN to, before me this 4th day of Feb. 1987 at
Bacolod City, Philippines.
SGD. DEMOSTHENES L. MAGALLANES
Judge

MUNICIPAL TRIAL COURT

BACOLOD CITY
(p. 19, Record)
On the basis of the foregoing application and joint deposition, Judge
Magallanes issued Search Warrant No. 181, commanding the search of the
property described in the warrant.
Subsequently, constabulary officers stationed in Bacolod City conducted a
search of the premises described in the search warrant and seized the
following articles, to wit: 1) 272 kilos of galvanized bolts, V chuckle and Ubolts; and 2) 3 and 1/2 feet angular bar. The receipt was signed by Digno
Mamaril, PC Sergeant and marked from Kenneth Siao (p. 21, Record).
A complaint for violation of the Anti-Fencing Law (P.D. 1612) was filed
against Kenneth Siao with the office of the City Fiscal by the National Power
Corporation. Thereafter, Siao filed a counter-affidavit alleging that he had
previously relinquished all his rights and ownership over the Kener Trading to
herein petitioner Erle Pendon. In a resolution (pp. 22-23, Record) dated May
18, 1987, the office of the City Fiscal recommended the dismissal of the
complaint against Siao and the filing of a complaint for the same violation
against petitioner. On the same day, a complaint (p. 24, Record) for Violation
of the Anti-Fencing Law was filed against petitioner and docketed as Criminal
Case No. 5657 of the Regional Trial Court of Negros Occidental. The case
was raffled to Branch 47 of the same court presided over by respondent
Judge Enrique T. Jocson.
Before his arraignment, petitioner filed on July 9, 1987, an application for
the return of the articles seized by virtue of Search Warrant No. 181 (pp. 2629, Record) on the ground that the said search warrant was illegally issued.
The prosecuting fiscal filed an opposition to the application (pp. 31-32,
Record). The application was subsequently amended to an application for
quashal of the illegally-issued search warrant and for the return of the
articles seized by virtue thereof (pp. 33-38, Records).
On August 24, 1987, respondent Judge Jocson issued an order impliedly
denying the application for the quashal of the search warrant without ruling
on the issue of the validity of the issuance thereof. The order states:
Counsel for accused having admitted in the hearing in open court that at
least one of the seized items bears the identifying mark of the complainant
National Power Corporation, and there being no statement that the seized
items were acquired in usual course of business for value, this court is
constrained to have the case tried without resolving whether or not the
questioned search warrant was issued validly. (p. 43, Records)
A motion for reconsideration was filed by petitioner but it was denied on
October 14, 1987 (p. 11, Rollo).

On October 20, 1987, petitioner filed with the Court of Appeals a petition for
certiorari, prohibition and mandamus with a prayer for a restraining order,
assailing the legality of search warrant No. 181 and praying for the
permanent prohibition against the use in evidence of the articles and
properties seized and the return thereof to petitioner. On April 4, 1988,
respondent Court of Appeals dismissed the petition. The appellate court
found the existence of a probable cause to justify the issuance of the search
warrant. The respondent court held:
x x x
For reasons indicated, We hold that the evidence was sufficient to sustain
the validity of the issuance of the Search Warrant No. 181 and to sustain
further the ruling of the respondent trial court in denying the petition for the
return of the articles and personal properties seized thereunder.
WHEREFORE, this petition is hereby DISMISSED, with costs against
petitioner. The previous order to maintain the status quo is hereby
withdrawn and set aside.
SO ORDERED. (p. 41, Rollo)
The motion for reconsideration of the above decision filed by petitioner on
May 2, 1988 was denied in a resolution (p. 49, Rollo) dated July 21, 1988.
The basic issue raised in this petition is the legality of the issuance of Search
Warrant No. 181. It is the contention of petitioner that the application for the
search warrant and the joint deposition of the witnesses miserably failed to
fulfill the requirements prescribed by the Constitution and the rules.
The petitioner argues that the application of 1st Lt. Rojas and the joint
deposition of Abaja and Reyes failed to comply with the requisites of
searching questions and answers. The joint deposition of the witnesses
showed that the questions therein were pretyped, mimeographed and the
answers of the witnesses were merely filled-in. No examination of the
applicant and of the joint deponents was personally conducted by Judge
Magallanes as required by law and the rules.
Additionally, petitioner also contends that both the application of Rojas and
the joint deposition of Abaya and Reyes show that neither of the affiants had
personal knowledge that any specific offense was committed by petitioner or
that the articles sought to be seized were stolen or that being so, they were
brought to Kenneth Siao.
Lastly, the petitioner contends that, even assuming for the sake of polemics,
that the articles belong to the latter, his Constitutional right prevails over
that of NAPOCOR.

The right against unreasonable searches and seizures is guaranteed under

Article III (Bill of Rights), Section 2 of the 1987 Constitution of the
Philippines which provides:
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.
Under the above provision, 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 (Burgos, Sr. v. Chief of Staff, G.R. No. 64261, Dec.
26, 1984, 133 SCRA 800). In determining the existence of probable cause, it
is required that: 1) the judge (or) officer must examine the x x witnesses
personally; 2) the examination must be under oath; and (3) the examination
must be reduced to writing in the form of searching questions and answers
(Marinas v. Sioco, 104 SCRA 403, Ponsica v. Ignalaga, G.R. No. 72301, July
31, 1987, 152 SCRA 647). These requirements are provided under Section
4, Rule 126 of the New Rules of Criminal Procedure which states: Sec. 4.
Examination of complain-ant; 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 any affidavits submitted.
It has been ruled that the existence of probable cause depends to a large
degree upon the finding or opinion of the judge conducting the examination
(Luna v. Plaza, G.R. No. L-27511, Nov. 29, 1968), however, the opinion or
finding of probable cause must, to a certain degree, be substantiated or
supported by the record.
In this case, We find that the requirement mandated by the law and the
rules that the judge must personally examine the applicant and his
witnesses in the form of searching questions and answers before issuing the
warrant, was not sufficiently complied with. The applicant himself was not
asked any searching question by Judge Magallanes. The records disclose that
the only part played by the applicant, Lieutenant Rojas was to subscribe the
application before Judge Magallanes. The application contained pre-typed
questions, none of which stated that applicant had personal knowledge of a
robbery or a theft and that the proceeds thereof are in the possession and
control of the person against whom the search warrant was sought to be

issued. In the case of Roan v. Gonzales, G.R. No. 71410, Nov. 25, 1986, 145
SCRA 687, citing the case of Mata v. Bayona, G.R. No. 50720, March 26,
1984, 128 SCRA 388, where the applicant himself was not subjected to an
interrogation but was questioned only to ascertain, among others, if he
knew and understood (his affidavit) and only because the application was
not yet subscribed and sworn to, We held that:
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 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.
x x x
It is axiomatic that the examination must be probing and exhaustive, not
merely routinary or pro forma, if the claimed probable cause is to be
established. 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. (italics supplied; p. 695)
Likewise, the joint deposition made by the two (2) witnesses presented by
the applicant can hardly satisfy the same requirement. The public
respondent prosecutor admitted in his memorandum that the questions
propounded were pre-typed.
The offense which petitioner was sought to be charged was violation of the
anti-fencing law which punishes the act of any person who, with intent to
gain for himself or for another, shall buy, receive, possess, keep, acquire,
conceal, sell or dispose of, or shall buy or sell, or in any other manner deal in
any article, item, object or anything of value which he knows, or should have
known to him, to have been derived from the proceeds of the crime of
robbery or theft (Sec. 2a, P.D. 1612). The four (4) questions propounded
could hardly support a finding of probable cause. The first question was on
the personal circumstances of the deponents. The second and third were
leading questions answerable by yes or no. The fourth question was on how
the deponents knew about their answers in the second and third questions.
The judge could have exploited this last ques-tion to convince himself of the
existence of a probable cause but he did not. There was also no statement in
the joint deposition that the articles sought to be seized were derived from
the proceeds of the crime of robbery or a theft or that applicants have any
knowledge that a robbery or theft was committed and the articles sought to
be seized were the proceeds thereof. It was not even shown what connection
Kenneth Siao has with Kener Trading or with the premises sought to be
searched. By and large, neither the application nor the joint deposition

provided facts or circumstance which could lead a prudent man to believe

that an offense had been committed and that the objects sought in
connection with the offense, if any, are in the possession of the person
named in the application.
x x x [T]he searching questions propounded to the applicants of the search
warrant and his witnesses must depend to a large extent upon the discretion
of the Judge just as long as the answers establish a reasonable ground to
believe the commission of a specific offense and that the applicant is one
authorized by law, and said answers particularly describe with certainty the
place to be searched and the persons or things to be seized. The
examination or investigation which must be under oath may not be in public.
It may even be held in the secrecy of his chambers. Far more important is
that the examination or investigation is not merely routinary but one that is
thorough and elicit the required information. To repeat, it must be under
oath and must be in writing. (Mata v. Bayona, 50720, March 26, 1984, 128
SCRA 388) (italics supplied)
And, in Quintero v. NBI, G.R. No. L-35149, June 23, 1988, 162 SCRA 467,
483:
As held in Nolasco v. Pao No. 69803, October 8, 1985, 139 SCRA 163), the
questions propounded by respondent Executive Judge to the applicants
witness are not sufficiently searching to establish probable cause. 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.
Another infirmity of Search Warrant No. 181 is its generality. The law
requires that the articles sought to be seized must be described with
particularity. The items listed in the warrant, to wit: NAPOCOR Galvanized
bolts, grounding motor drive assembly, aluminum wires and other NAPOCOR
Towers parts and line accessories are so general that the searching team
can practically take half of the business of Kener Trading, the premises
searched. Kener Trading, as alleged in petitioners petition before respondent
Court of Appeals and which has not been denied by respondent, is engaged
in the business of buying and selling scrap metals, second hand spare parts
and accessories and empty bottles.
Far more important is that the items described in the application do not fall
under the list of personal property which may be seized under Section 2,
Rule 126 of the Rules on Criminal Procedure because neither the application
nor the joint deposition alleged that the item/s sought to be seized were: a)
the subject of an offense; b) stolen or embezzled property and other
proceeds or fruits of an offense; and c) used or intended to be used as a
means of committing an offense.

It is noted that respondent Judge Jocson himself had doubts about the
existence of probable cause in the issuance of the search warrant. In
denying petitioners motion for reconsideration of the denial of his motion to
quash and application for articles seized by virtue of search warrant No. 181,
he stated:
The seeming lack of probable cause during the application for search
warrant in the lower court is cured by the admission for the accused of
counsel that at least one of the items seized bore the identifying mark of
complainant National Power Corporation and the failure to aver in the
quashal motion and in the open hearing that the seized items themselves
were acquired in the usual course of business for value in good faith.
However, this order is without prejudice to the right of the accused to pursue
against the administrative liability of MTCC Judge Demosthenes Magallanes.
(p. 54, Rollo)
In his memorandum, City Fiscal Mirano stated that the articles seized by
virtue of search warrant No. 181 was taken from the possession of petitioner
who signed the receipt in behalf of Kener Trading, which possession is
punishable under Section 5, P.D. 1612, which states:
Sec. 5. Presumption of Fencing.Mere possession of any goods, article,
item, object or anything of value which has been the subject of robbery or
thievery shall be prima facie evidence of fencing.
No matter how incriminating the articles taken from the petitioner may be,
their seizure cannot validate an invalid warrant. Again, in the case of Mata v.
Bayona, G.R. No. 50720, March 26, 1984, 128 SCRA 388:
x x x that nothing 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.

Finally, the seized articles were described in the receipt issued by PC

Sergeant Mamaril as galvanized bolts, V-chuckle, U-bolts and 3 1/2 feet
angular bar (p. 21, Record). There is no showing that the possession thereof
is prohibited by law hence, the return thereof to petitioner is proper. Also,
the use in evidence of the articles seized pursuant to an invalid search
warrant is enjoined by Section 3(2), Article III of the Constitution.
ACCORDINGLY, the petition is GRANTED. Judgment is hereby rendered: 1)
declaring Search Warrant No. 181 issued by Judge Demosthenes Magallanes
NULL and VOID; 2) ordering the return of the items seized by virtue of the
said warrant to herein petitioner; and 3) permanently enjoining respondents
from using in evidence the articles seized by virtue of Search Warrant No.
181 in Criminal Case No. 5657.
SO ORDERED.
G.R. No. 16009

September 21, 1920

UY KHEYTIN, ET AL., petitioners,

vs.
ANTONIO VILLAREAL, Judge of First Instance for the Twenty-third Judicial District, ET
AL., respondents.
Crossfield & O'Brien for petitioners.
Attorney-General Paredes & Assistant Attorney-General Santos for respondents.
JOHNSON, J.:
This is an original petition, filed in this court, for the writs of injunction and prohibition. It appears from
the record that on April 30, 1919, one Ramon Gayanilo, corporal of the Philippine Constabulary,
presented to the judge of the Court of First Instance of Iloilo an application for search warrant, the
said Ramon Gayanilo stating in his application; "That in the house of Chino Uy Kheytin, Sto. Nio
St., No. 20, Iloilo, under the writing desk in his store, there is kept a certain amount of opium." The
application was subscribed and sworn to by the said complainant before the Honorable L. M.
Southworth, judge of the Twenty-third Judicial District.
Upon that application the said judge, on the same day, issued a search warrant in the following
terms:
The United States, to any officer of the law.
Whereas on this day proof , by affidavit, having been presented before me by Corporal
Ramon Gayanilo, Philippine Constabulary, that there is probable cause to believe that in the
house of Chino Uy Kheytin, Sto. Nio St., No. 20, under the desk for writing in his store there
is kept a certain amount of opium.
Therefore, you are hereby commanded during day or night to make an immediate search on
the person of Uy Kheytin or in the house, Sto. Nio St., No. 20, for the following property
opium and, if you find the same or any part thereof, to bring it forthwith before me in the
Court of First Instance of Iloilo.

Witness my hand this 30th day of April, 1919.

(Sgd.) L. M. SOUTHWORTH,
Judge of the Court of Iloilo.

Armed with that search warrant, the respondent M. S. Torralba, lieutenant of the Philippine
Constabulary, accompanied by some of his subordinates, on the same day (April 30th) searched the
house of the petitioner Uy Kheytin and found therein 60 small cans of opium. They wanted to search
also the bodega on the ground-floor of the house, but Uy Kheytin positively denied that it was his or
that he rented it. Lieutenant Torralba wanted to be sure, and for this reason he placed a guard in the
premises to see that nothing was removed therefrom, and then went away to find out who the owner
of the bodega was. The next morning he learned from the owner of the house, one Segovia, of the
town of Molo, that the Chinaman Uy Kheytin was the one who was renting the bodega. Thereupon
Lieutenant Torralba and his subordinates resumed the search and then and there found and seized
the following articles:
No. 2. One wrap of paper containing a broken bottle of opium liquid, which is kept in a tin
box No. 1.
No. 3. One wrap of paper containing an opium pipe, complete, one opium container, one
wrap of opium ashes, one rag soaked in opium and one thimble with opium.
No. 4. One leather hand bag containing 7 small bottle containing opium, with
two cedulas belonging to Tian Liong, with key.
No. 5. One wooden box containing 75 empty cans, opium containers.
No. 6. One tin box containing 23 small empty cans, opium containers.
No. 7. One cardboard box containing 3 pieces of wood, one old chisel, one file, one piece
of soldering lead, one box of matches, 5 pieces of iron plates, and several other tin plates.
No. 8. One roll of 7 sheets of brass.
No. 9. Three soldering outfits.
No. 10. One hammer.
No. 11. One Chinese scale for opium.
No. 12. Twelve small bottles empty.
No. 13. Two bottles containing opium.
No. 14. One bundle of Chinese books of accounts with several personal letter of Chine Uy
Kheytin.

No. 15. One tin box containing 60 cans of molasses, with 1 small bottle containing
molasses.
Thereafter a criminal complaint was filed in the court of the justice of the peace of Iloilo against all
the petitioners herein, charging them with a violation of the Opium Law. They were duly arrested,
and a preliminary investigation was conducted by the justice of the peace, after which he found that
there was probable cause for believing that the crime complained of had been committed and that
the defendants were the persons responsible therefor. The cause was duly transmitted to the Court
of First Instance.
While said cause was in the Court of First Instance, pending the filing of a complaint by the
provincial fiscal, the defendants, petitioners herein, through their attorney, filed a petition in the Court
of First Instance, asking for the return of "private papers, books and other property" which the
Constabulary officers had seized from said defendants, upon the ground that they had been so
seized illegally and in violation of the constitutional rights of the defendants. It was urged (1) that the
search warrant of April 30th was illegal because the requisites prescribed by the General Orders No.
58 had not been complied with in its issuance; (2) that the searches and seizures made on May 1st
had been made without any semblance of authority and hence illegal; and (3) that the seizure of the
defendants' books and letters was a violation of the provisions of the Jones Law providing that no
person shall be compelled to testify against himself, and protecting him against unreasonable
searches and seizures.
After a hearing upon said motion, the Honorable Antonio Villareal, judge, in a very carefully prepared
opinion, reached the conclusion that the searches and seizures complained of had been legally
made, and consequently, denied the defendants' petition.
Thereafter and on November 22, 1919, the said defendants, petitioners herein, filed the present
petition in this court, praying as follows:
Wherefore, in view of the foregoing allegations, it is respectfully prayed that a preliminary
injunction issue.
First, restraining the respondent judge, and his successors from making any cognizance of
any action of any kind which has or may be brought against these petitioners which have
resulted directly or indirectly from the unlawful searches and seizures above-mentioned;
Second, restraining the respondent clerk of the court, the respondent fiscal, the respondent
commandant of the Constabulary, and the successors of any of them, and the assistants of
any of them, from any further examination of the private papers, books, and other property
unlawfully seized as above alleged; from making or using the same for the purpose or in
such a manner that the character or reputation of these petitioners might be injured; from
making or using any copies, memorandum, notes, or extracts obtained from the books,
papers, etc., so seized; from making any examinations of any of the property thus obtained
or from using any reports or from publishing in any manner any reports already prepared as
a result of the examination of such property; or from making any other use of the property
and papers so obtained until orders are received from this court regarding the disposition of
the same.
It is further requested, that a writ of prohibition issue, restraining the respondent judge from
at any time taking cognizance of any action or prosecution growing out of the unlawful
searches and seizures above-mentioned, and directing such judge or his successor to order
the immediate return to these petitioners of all of the papers and other property thus

unlawfully obtained, together with all copies, extracts, memorandum, notes, photographs,
reports, samples, or evidence obtained by reason of such searches and seizures whereby
the reputation and character of petitioners may be further damaged; furthermore enjoining all
of the respondents and their assistants from divulging any of the secrets or information which
they have thus unlawfully obtained from these petitioners; and especially ordering the
respondent judge to dismiss all actions or prosecutions already filed before him or which
may hereafter come before him as a result of the unlawful acts herein alleged.
I
THE SEARCH WARRANT OF APRIL 30TH
The petitioners contend that the search warrant of April 30, 1919, was illegal, (1) because it was not
issued upon either of the grounds mentioned in section 96 of General Orders No. 58, and (2)
because the judge who issued it did not determine the probable cause by examining witnesses
under oath, a required by section 98 of said General Orders No. 58.
Section 96 of General Orders No. 58 is as follows:
SEC. 96. It (a search warrant) may be issued upon either of the following grounds:
1. When the property was stolen or embezzled.
2. When it was used or when the intent exists to use it as the means of committing a felony.
In support of their first contention the petitioners argue that the property ordered to be seized,
namely, opium, under the said search warrant, had not been stolen or embezzled, nor had it been
used or intended to be used as the means of committing a felony; that the word "felony" is applicable
only to a serious crime which is malum per seand not to one which is merely malum prohibitum,
such as the possession of opium.
For the purpose of this decision we deem it unnecessary to draw the distinction between the words
"felony" and "misdemeanor" a used in the common law. Suffice it to say that, whatever may be the
technical common-law meaning of the word "felony," which is used in paragraph 2 of section 96
above quoted, we believe it would be the height of absurdity to hold, upon technical grounds, that a
search warrant is illegal which is issued to search for and seize property the very possession of
which is forbidden by law and constitutes a crime. Opium is such property. "Search-warrants have
heretofore been allowed to search for stolen goods, for goods supposed to have been smuggled into
the country in violation of the revenue laws, for implements of gaming or counterfeiting, for lottery
tickets or prohibited liquors kept for sale contrary to law, for obscene books and paper kept for sale
or circulation, and for powder or other explosive and dangerous material so kept as to endanger the
public safety." (Cooley on Constitutional Limitations, 7th ed., p. 432.)
In support of their second contention, the petitioners invoke section 98 of General Orders No. 58,
which provides a follow:
SEC. 98. The judge or justice must, before issuing the warrant, examine on oath the
complainant and any witnesses he may produce and take their depositions in writing.
Section 97 provides that "a search warrant shall not issue except for probable cause" and section 98
above quoted provides the manner in which that probable cause shall be determined by the judge

issuing the warrant. In the present case, however, the judge did not examine any witness under oath
but relied solely upon the sworn application of the Constabulary officer in determining whether there
was probable cause. In that application the complainant swore positively: "That in the house of
Chino Uy Kheytin, Sto. Nio St., No. 20, Iloilo, under the writing desk in his store, there is kept a
certain amount of opium." This statement was found to be true by the subsequent finding and
seizure of a considerable quantity of opium in the place mentioned. The question now is, whether
the omission of the judge to comply with the requirements of section 98 would, under the
circumstances, justify the court in declaring that the search warrant in question was illegal and
ordering the return of the opium found and seized under said warrant.
A search warrant may be likened to a warrant of arrest. The issuance of both is restricted by the
same provision of the Jones Law (sec. 3) which is as follows:
That no warrant shall issue but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched and the person or thing to be seized.
A person, then, is protected from unreasonable arrests just as much as he is protected from
unreasonable searches. But suppose he happened to be arrested without any warrant, or upon a
warrant which had been issued by a judge without first properly determining whether there was
probable cause, and upon investigation it should be found, from his own admission, that he was the
author of the crime, should he be released upon the ground that he had not been legally
arrested? In the case of Ker vs. Illinois (119 U. S., 436) Ker having committed the crime of larceny,
escaped and went to Peru. He was kidnapped in Peru and brought back to the State of Illinois
without any pretense of authority. Passing upon the question of the constitutionality of the arrest of
Ker, the Supreme Court of the United States, speaking through Mr. Justice Miller, said:
We do not intend to say that there may not be proceedings previous to the trial in regard to
which the prisoner could invoke in some manner the provisions of this clause of the
Constitution; but for mere irregularities in the manner in which he may be brought into the
custody of the law, we do not think he is entitled to say that he should not be tried at all for
the crime with which he is charged in a regular indictment. He may be arrested for a very
heinous offense by persons without any warrant, or without any previous complaint, and
brought before a proper officer, and this may be in some sense said to be "without due
process of law." But it would hardly be claimed that after the case had been investigated, and
the defendant held by the proper authorities to answer for the crime, he could plead that he
was first arrested "without due process of law." (Followed in U. S. vs. Grant and Kennedy, 18
Phil., 122, 146; U. S. vs. Wilson, 4 Phil., 317.)
In the present case there was an irregularity in the issuance of the search warrant in question in that
the judge did not first examine the complainant or any witnesses under oath, as required by section
98 of General Orders No. 58. But the property sought to be searched for and seized having been
actually found in the place described by the complainant, reasoning by analogy from the case of an
improper arrest, we are of the opinion that that irregularity is not sufficient cause for ordering the
return of the opium found and seized under said warrant, to the petitioners, and exonerating the
latter.
II
THE SEARCH MADE ON MAY 1ST
Petitioners content that this was made without any search warrant and without any authority of law;
that the search warrant of April 30th could not be used on May 1st because that warrant had been

executed on the day of its issuance. In support of this contention counsel for the petitioners, in the
lower court, argued that:
While it is true that a warrant is good for 10 days after the date of issuance, this cannot be
interpreted to mean that a search warrant can be used every day for 10 days, and for a
different purpose each day. This would be absurd. It is admitted, for sake of argument, that if
upon a search, under a legally issued warrant, some other prohibited articles than those
named in the warrant should be found, these articles might be seized. Also, it might possibly
be true, that if a warrant was issued to search for a certain article and it was not found after
the first search, that another search could be made sometime within the 10 days. But this is
certainly the furthest possible extreme the doctrine could be carried. It certainly could not be
interpreted to allow a search to be made, and after the articles for which the warrant was
issued had been seized, to use this same warrant as authority to make another search.
We agree with counsel that a search warrant cannot be used every day for ten days, "and for a
different purpose each day," and that after the articles for which the warrant was issued have been
seized the same warrant cannot be used as authority to make another search. But this argument is
not applicable to the facts in this case. It appears from the oral evidence adduced during the hearing
of the petitioners' motion in the court below that the search for opium, the property mentioned in the
warrant, was not completed on April 30th; it was interrupted by the necessity to ascertain who the
owner of the bodega on the ground-floor was, because the petitioner Uy Kheytin falsely disclaimed
ownership thereof. In other words, the search of May 1st was not made "for a different purpose," nor
could it be considered "another search," but was really a continuation of the search begun on April
30th. This is shown by the fact that during the interval between the two searches the premises in
question were guarded by Constabulary soldiers, and the petitioners were made to understand on
April 30th that the authorities were not yet through with the search and would continue the same as
soon as they found out that the bodega was also occupied by the petitioner Uy Kheytin. We are,
therefore, of the opinion that the search made on May 1st was authorized under the search warrant
of April 30th
III
THE SEIZURE OF BOOKS, LETTERS, ETC.
The important question that remains to be decided is whether, under a search warrant for opium, the
officers of the law were authorized to seize books, personal letters, and other property having a
remote or no connection with opium. The respondent M. S. Torralba, lieutenant of the Constabulary,
testified that he seized these articles because he believed or suspected that they had some relation
with the opium in question; in other words, he thought that they might be used as evidence against
the petitioners when they are prosecuted for a violation of the Opium Law. The respondents contend
that this was a sufficient justification under the law for the seizure of such articles under the same
warrant for opium.
We are of the opinion that the respondent's contention in untenable. Both the Jones Law (sec. 3)
and General Orders No. 58 (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 this is the correct interpretation of this constitutional provision is borne out by
American authorities.

In order to comply with the constitutional provisions regulating the issuance of search
warrants, the property to be seized under a warrant must be particularly described
therein and no other property can be taken thereunder. The goods to be seized must be
described with such certainty as to identify them, and the description must be so particular
that the officer charged with the execution of the warrant will be left with no discretion
respecting the property to be taken. . . . Under a warrant to search a person for stolen
goods, the officer cannot lawfully take from the person a letter, such letter not being
particularly described in the warrant as property to be searched for. (24 R. C. L., 714, 715.)
It is a violation of the declaration of rights respecting searches and seizures for an officer,
while searching one's person under a search warrant for stolen goods, to take from it,
against the party's will, a letter written to him. (State vs. Slamon, 87 Am. St. Rep., 711.)
We have said that if the officer follows the command of his warrant, he is protected; and this
is so even when the complaint proves to have been unfounded. But if he exceed the
command by searching in places not described therein, or by seizing persons or articles not
commanded, he is not protected by the warrant, and can only justify himself as in other
cases where he assumes to act without process. Obeying strictly the command of his
warrant, he may break open outer or inner doors, and his justification does not depend upon
his discovering that for which he is to make search. (Cooley on Constitutional Limitations, 7th
ed., p. 434)
That the officers of the law believed that the books, papers, etc., which they seized might be used as
evidence against the petitioners herein a criminal action against them for a violation of the Opium
Law, is no reason or justification under the law for the seizure: First, because they were not
"particularly described" or even mentioned in the search warrant; second, because, even if they had
been mentioned in the search warrant, they could not be legally seized, for a search warrant cannot
be used for the purpose of obtaining evidence; and third, because to compel a person to produce his
private papers to be used in evidence against him would be equivalent to compelling him to be a
witness against himself.
1. The authorities for the first proposition have already been given above.
2. It may be said that
Books of account, private documents, and private papers are property which men may
lawfully possess. It is not believed that the stature (subsection 2 of section 96, G. O. 58) was
intended to cover property of this class. Granting that property of which men may lawfully
possess themselves has been used in the commission of a crime and not possessed nor
created purely for the purpose of committing a crime, and not likely to be used again, then
certainly its seizure can only be for the purpose of using the same as evidence to prove the
commission of the crime already committed. This purpose is not contemplated by the
provision of the law. The finding of evidence can not be the immediate reason for issuing the
search warrant. To use a search warrant for the purpose of obtaining possession of property
for this purpose would be an "unreasonable" use of the remedy by search warrant, which is
prohibited by law. (Regidor vs. Araullo, 5 Off. Gaz., 955, 961, 962; U. S. vs. De los Reyes
and Esguerra, 20 Phil., 467.)
Judge Cooley in his work on Constitutional Limitations, 7th ed., p. 431, says:
The warrant is not allowed for the purpose of obtaining evidence of an intended crime; but
only after the lawful evidence of an offense actually committed. Nor even then is it allowable

to invade one's privacy for the sole purpose of obtaining evidence against him, except in a
few special cases where that which is the subject of the crime is supposed to be concealed,
and the public or the complainant has an interest in it on its destruction.
3. In the case of Boyd vs. United States (116 U. S., 616), the Supreme Court of the United States,
speaking through Mr. Justice Bradley, said:
The seizure or compulsory production of a man's private papers to be used in evidence
against him is equivalent to compelling him to be a witness against himself, and, in a
prosecution for a crime, penalty or forfeiture, is equally within the prohibition of the Fifth
Amendment.
Both amendments (fourth and fifth) relate to the personal security of the citizen. They nearly
run into and mutually throw light upon each other. When the thing forbidden in the Fifth
Amendment, namely, compelling a man to be a witness against himself, is the object of a
search and seizure of his private papers, it is an "unreasonable search and seizure" within
the Fourth Amendment.
Search and seizure of a man's private papers to be used in evidence for the purpose of
convicting him of a crime, recovering a penalty, or of forfeiting his property, is totally different
from the search and seizure of stolen goods, dutiable articles on which the duties have not
been paid, and the like, which rightfully belong to the custody of the law. (Se
also Silverthorne Lumber Co. vs. United States, decided Jan. 26, 1920, by the Supreme
Court of the United States.)
The seizure of a person's private papers, to be used in evidence against him, is equivalent to
compelling him to be a witness against himself. (State vs. Slamon, 73 Vt., 212; 87 Am. St.
Rep., 711.)
From all of the foregoing our conclusions are:
1. That although in the issuance of the search warrant in question the judge did not comply with the
requirements of section 98 of General Orders No. 58, the petitioners are not entitled to the return of
the opium and its paraphernalia which were found and seized under said warrant, and much less are
they entitled to be exonerated because of such omission of the judge.
2. That the search made on May 1st was a continuation of the search begun on the previous day,
and, therefore, did not require another search warrant.
3. That the seizure of the petitioner's books, letters, telegrams, and other articles which have no
inherent relation with opium and the possession of which is not forbidden by law, was illegal and in
violation of the petitioners' constitutional rights.
Therefore, it is hereby ordered and decreed that each and all of the respondents herein, their
assistants or successors, be, and they hereby are, forbidden from examining or making any use of
said books, letters, telegrams, etc., namely, the articles described in items Nos. 7, 8, 9, 10, 12, 14,
and 15 of the sheriff's return (Exhibit 3, reproduced at the top of page 3 of this decision 1) and they
are hereby ordered to immediately return the said articles to the petitioners. So ordered.
Araullo and Villamor, JJ., concur.
Mapa, C.J., concurs in the result.

Separate Opinions
AVANCEA, J., concurring and dissenting:
I concur with the decision except as to the part which declares that the search warrant was
irregularly issued

MOIR, J., concurring and dissenting:

In concurring in the result in this decision, I desire to state that I do not concur in that part of the
decision which says that the judge did not comply with the requirement of section 98 of General
Orders No. 58 before issuing an order of arrest. That section reads:
The judge or justice must, before issuing the warrant, examine on oath the complainant and
any witnesses he may produce and take their depositions in writing.
It appears that complainant in this case was a Constabulary corporal. He made affidavit before the
judge of First Instance when the search warrant was issued. It does not appear that he presented
any witnesses whose depositions were to be taken.
General Orders No. 58 expressly provides, in section 99 thereof,
If the judge or justice is thereupon satisfied of the existence of facts upon which the
application is based, or that there is probable cause to believe that they exist, he must issue
the warrant, which must be substantially in the following form:
...........................................................}
Province of ........................................
The United States to any ......................., or policeman in the Province of ...............................,
Proof, by affidavit, having this day been made before me by, etc. etc.
This court says, on page 8 of the decision:1
In the present case there was an irregularity in the issuance of the search warrant in
question in that the judge did not first examine the complainant or any witnesses under oath,
as required by section 98 of General Orders No. 58. But the property sought to be searched
for and seized having been actually found in the place described by the complainant,
reasoning by analogy from the case of an improper arrest, we are of the opinion that that
irregularity is not sufficient cause for ordering the return of the opium found and seized under
said warrant, to the petitioners, and exonerating the latter.
We do not think there was nay irregularity.

The affidavit required by law was made. It is a general practice to issue search warrants on a single
affidavit. To require more than one or to require witnesses to be presented, would add to the law and
would defeat the very object of a search warrant, which is to seize evidence of crime before it can be
destroyed. Publicity, which would ordinarily follow the presentation of witnesses or even getting more
than one affidavit, would invite, if not assure, a failure.
If one witness may be sufficient to convict a man of the gravest crime, certainly one affidavit should
be sufficient for a judge to issue a search warrant upon.
Judging from the quantity of opium captured, all the articles mentioned in the decision were used by
the petitioners for unlawful purposes; i.e., the carrying on of a trade in opium. Liquid opium is
necessarily put up in bottles and other small receptacles, and it would seem that the metal found
was for making small containers for the opium. The writer does not know why the molasses was
present, but it is most frequently present where there is any considerable quantity of opium found.
It would seem that what petitioners really want are the Chinese account book and the letters, and the
reason for their ardent desire to get them can easily be imagined.
We must follow the decisions quoted, and hold that this book and the letters should be returned, and
to this I agree, but we must assume that everything else was used in and about the sale of opium,
and they should not be returned.