search and seizure crimpro

CRIMPROMIDTERMS-CADC 1

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PART TWO: SEARCH AND SEIZURE

I. Nature, Scope and Definitions A. DEFINITION

RULE 126 Section 1. Search warrant defined. A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court. Section 13. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant.

STONEHILL VS DIOKNO Facts: 1. Respondent (porsecution) made possible the issuance of 42 search warrants against the petitioner and the corporation to search persons and premises of several personal properties due to an alleged violation of Central Bank Laws, Tariff and Custom Laws, Internal Revenue Code and the Revised Penal Code of the Philippines. As a results, search and seizures were conducted in the both the residence of the petitioner and in the corporation's premises. 2.The petitioner contended that the search warrants are null and void as their issuance violated the Constitution and the Rules of Court for being general warrants. Thus,he filed a petition with the Supreme Court for certiorari, prohibition, mandamus and injunction to prevent the seized effects from being introduced as evidence in the deportation cases against the petitioner. The court issued the writ only for those effects found in the petitioner's residence. Issue: Whether or not the petitioner can validly assail the legality of the search and seizure in both premises RULING: No, he can only assail the search conducted in the residences but not those done in the corporation's premises. The petitioner has no cause of action in the

second situation since a corporation has a personality separate and distinct from the personality of its officers or herein petitioner regardless of the amount of shares of stock or interest of each in the said corporation, and whatever office they hold therein. Only the party whose rights has been impaired can validly object the legality of a seizure--a purely personal right which cannot be exercised by a third party. The right to object belongs to the corporation ( for the 1st group of documents, papers, and things seized from the offices and the premises). PEOPLE VS MARTI FACTS: August 14, 1957, the appellant and his common-law wife, Sherly Reyes, went to the booth of the Manila Packing and Export Forwarders carrying Four (4) wrapped packages. The appellant informed Anita Reyes that he was sending the packages to a friend in Zurich, Switzerland. Anita Reyes asked if she could examine and inspect the packages. She refused and assures her that the packages simply contained books, cigars, and gloves. Before the delivery of appellants box to the Bureau of Customs and Bureau of Posts, Mr. Job Reyes (Proprietor), following the standard operating procedure, opened the boxes for final inspection. A peculiar odor emitted from the box and that the gloves contain dried leaves. He prepared a letter and reported to the NBI and requesting a laboratory examinations. The dried marijuana leaves were found to have contained inside the cellophane wrappers. The accused appellant assigns the following errors: The lower court erred in admitting in evidence the illegality of search and seized objects contained in the four (4) parcels. ISSUE: Whether or not the seizing of illegal objects is legal? HELD: Yes, appellant guilty beyond reasonable doubt. RATIONALE: Article III, Sections 2 and 3, 1987 Constitution

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Mapp vs Ohio, exclusionary rule Stonehill vs Diokno, declared as inadmissible any evidence obtained by virtue of a defective search warrant, abandoning in the process the ruling earlier adopted in Mercado vs Peoples Court. The case at the bar assumes a peculiar character since the evidence sought to be excluded was primarily discovered and obtained by a private person, acting in a private capacity and without the intervention and participation of state authorities. Under the circumstances, can accused / appellant validly claim that his constitutional right against unreasonable search and seizure. The contraband in this case at bar having come into possession of the government without the latter transgressing appellants rights against unreasonable search and seizure, the Court sees no cogent reason whty the same should not be admitted.

B. CONSTITUTIONAL AND STATUTORY BOUNDARIES;LIMITATION ON STATE ACTION

1. NATURE OF RIGHT PROTECTED; WAIVER OF

PROTECTED RIGHT CONSTITUTION ART III Section 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. KATZ VS US Brief Fact Summary. The petitioner, Katz (the petitioner), was convicted of transmitting wagering information over telephone lines in violation of federal law. The government had entered into evidence the petitioners end of telephone conversations that the government had obtained by placing a listening device to the phone

booth that the petitioner used. The Court of Appeals rejected the petitioners contention that the evidence should be suppressed. Facts. The petitioner used a public telephone booth to transmit wagering information from Los Angeles to Boston and Miami in violation of federal law. After extensive surveillance, the FBI placed a listening device to the top of the telephone booth and recorded the petitioners end of the telephone conversations which was then used as evidence against him at his trial. The petitioner moved to have the evidence suppressed under the Fourth Amendment of the Constitution, and that motion was denied. The Court of Appeals rejected the contention that the evidence is inadmissible. Certiorari was granted. Issue. Whether the Fourth Amendment of the Constitution protects telephone conversations conducted in a phone booth and secretly recorded from introduction as evidence against a person? Share Simple Share Buttons Adder (4.7) simplesharebuttons.com Search Table of Contents Add to Library Law Dictionary Print Note Pad AA Font size Held. Justice Potter Stewart filed the majority opinion. The petitioner strenuously asserted that the phone booth was a constitutionally protected area. However, the Fourth Amendment protects persons and not places from unreasonable intrusion. Even in a public place, a person may have a reasonable expectation of privacy in his person. Although the petitioner did not seek to hide his self from public view when he entered the telephone booth, he did seek to keep out the uninvited ear. He did not relinquish his right to do so simply because he went to a place where he could be seen. A person who enters into a telephone booth may expect the protection of the Fourth Amendment of


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the Constitution as he assumes that the words he utters into the telephone will not be broadcast to the world. Once this is acknowledged, it is clear that the Fourth Amendment of the Constitution protects persons and not areas from unreasonable searches and seizures. The Governments activities in electron ically listening to and recording the petitioners telephone conversations constituted a search and seizure under the Fourth Amendment and absent a search warrant predicated upon sufficient probable cause, all evidence obtained is inadmissible. Dissent. Justice Hugo Black (J. Black) filed a dissenting opinion. J. Black observed that eavesdropping was an ancient practice that the Framers were certainly aware of when they drafted the United States Constitution (Constitution). Had they wished to prohibit this activity under the Fourth Amendment of the Constitution they would have added such language that would have effectively done so. By clever wording, the Supreme Court finds it plausible to argue that language aimed specifically at searches and seizures of things that can be searched and seized may, to protect privacy, be applied to eavesdropped evidence of conversations. Concurrence. Justice John Harlan (J. Harlan) filed a dissenting opinion. The Fourth Amendment of the Constitution protects persons, not places. There is a twofold requirement for what protection is afforded to those people. First, that a person has exhibited an actual expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable. The critical fact in this case is that a person who enters a telephone booth shuts the door behind him, pays the toll, and is surely entitled to assume that his conversation is not being intercepted. On the other hand, conversations out in the open public would not be protected against being overheard as the expectation of privacy would not be reasonable. VILLANUEVA VS QUERUBIN In accordance with the policy to which this Court is committed, namely, that a colorable claim of a denial of a constitutional right should not be ignored, petitioner, in this certiorari and prohibition proceeding, succeeded in having his alleged

grievance against respondent Judge, the Honorable Jose R. Querubin, now retired, heard. He would have us nullify the lower court order of June 1, 1966 requiring him "to return and deliver to the Provincial Commander, Bacolod City, the amount of P10,350.00 and the wooden container stated in the receipt issued by the accused dated April 1, 1966, within forty-eight (48) hours upon receipt of this order." 1 The money in question formed part of the things seized in accordance with a search warrant previously issued by respondent Judge himself. Petitioner therefore, to lend plausibility to his plea, was under the necessity of alleging that less than full respect was accorded his constitutional right to be free from unreasonable search and seizure. 2 He would impress on us that full fealty was not shown to what is ordained by such a guarantee. Assertion of such a disregard of a constitutional command is one thing; proof is another. What is more, there is included in the petition itself 3 a written promise of petitioner to return such amount when required. Accordingly, as will be explained, petitioner did fail to show that he is entitled to the writs of certiorari and prohibition prayed for. It was alleged in the petition that on April 23, 1966, in a motion filed with respondent Judge by an assistant city fiscal of Bacolod City and a special prosecutor of the Department of Justice, it was set forth that on March 16, 1966, the residence of petitioner was raided by a constabulary and police team on the strength of a search warrant issued by such respondent Judge, in the course of which, there was a seizure of the amount of P10,350.00, which was not however deposited in court, as thereafter its possession was restored to petitioner. It was further stated that an information for the violation of Article 195 of the Revised Penal Code was filed with the City Court of Bacolod against petitioner. 4 There was an opposition on the part of petitioner to such motion wherein after asserting that the lower court was without jurisdiction and that the matter had become moot and academic, because the money was spent in good faith by him for the payment of the wages of his laborers, it was contended that there was a violation of his constitutional rights not to be deprived of property without due process of law and to be free from unreasonable searches and seizures. 5 Subsequently, after a reply to such opposition and a rejoinder

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were submitted, the respondent Judge issued the challenged order dated June 1, 1966, the dispositive portion of which reads: "[In view thereof], the accused Oscar Villanueva is hereby ordered to return and deliver to the Provincial Commander, Bacolod City, the amount of P10,350.00 and the wooden container stated in the receipt issued by the accused dated April 1, 1966, within forty-eight (48) hours upon receipt of this order." 6 There was a motion for reconsideration, but it was denied on June 11, 1966. 7 Hence this petition. In view of the stress laid therein as to the failure of respondent Judge considering the circumstances of the case to yield deference to the command of the right against unreasonable searches and seizure, and the assertion that unless there is a writ of preliminary injunction issued, respondent Judge will cause the enforcement of the challenged order, thus exposing him to contempt proceedings and other disciplinary actions if he could not comply with it, this Court adopted a resolution on June 21, 1966 which reads as follows: "The respondents in L-26177 (Oscar Villanueva vs. Hon. Judge R. Querubin, etc., et al.) are required to file, within 10 days from notice hereof, an answer (not a motion to dismiss) to the petition for prohibition and certiorari; upon petitioner's posting a bond of two thousand pesos (P2,000.00), let preliminary injunction issue." 8 In the answer filed by the then Solicitor General Antonio P. Barredo, now a member of this Court, the question of the alleged violation of the constitutional guarantee against unreasonable search and seizure was squarely met, thus: "Neither will the assailed orders result in unreasonable search and seizure for as already said earlier the money and wooden box in question were confiscated during a gambling raid pursuant to a search warrant issued by the respondent court after due and appropriate proceedings during which the petitioner and his witnesses were examined under oath by the respondent court." 9 The point thus raised was sought to be refuted in petitioner's written memorandum, but in a manner far from persuasive. For he did raise the specious argument that after the service of the search warrant on March 16, 1966, the motion of April 23, 1966 for the return of the money came too late, ignoring that the Rules of Court does require that the things seized be deposited in court. 10 Moreover, to counter the damaging effect of a written promise, which commendably he did not omit from his petition, that the amount of P10,350.00 "will be

returned ... if the higher authorities will require the return of the same by legal orders,...," 11 he would rely on his alleged rights as owner. Thus: "While he agreed to return the money by 'legal orders', this cannot be considered as a limitation on his right of ownership, because when an agreement conflicts with the provision of law, the latter must prevail. (Article 1306, Civil Code)." 12 There was no adequate appreciation of the controlling norms as to the effects of a seizure under a valid search warrant or one not so challenged. It is on the basis of such contentions that petitioner would have us issue the writs of certiorari and prohibition. A perusal of the pleadings yields the conclusion that petitioner failed to meet the burden of demonstrating that there was a denial of a constitutional right sufficient to oust the court of jurisdiction. On the contrary, what appears undeniable is that the actuation of respondent Judge was in accordance with law. There can be no question then of a violation of the safeguard against unreasonable search and seizure. 1. This constitutional right refers to the immunity of one's person, whether citizen or alien, from interference by government, included in which is his residence, his papers, and other possessions. Since, moreover, it is invariably through a search and seizure that such an invasion of one's physical freedom manifests itself, it is made clear that he is not to be thus molested, unless its reasonableness could be shown. To be impressed with such a quality, it must be accomplished through a warrant, which should not be issued unless probable cause is shown, to be determined by a judge after examination under oath or affirmation of the complainant and the witnesses he may produce, with a particular description of the place to be searched, and the persons or things to be seized. It is deference to one's personality that lies at the core of this right, but it could be also looked upon as a recognition of a constitutionally protected area, primarily one's home, but not necessarily thereto confined. 13 What is sought to be guarded is a man's prerogative to choose who is allowed entry to his residence. In that haven of refuge, his individuality can assert itself not only in the choice of who shall be welcome but likewise in the kind of objects he wants around him. There the state, however powerful, does not as such have access except under the circumstances above noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted


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intrusion by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life. 14 In the same vein, Landynski in his authoritative work 15 could fitly characterize this constitutional right as the embodiment of "a spiritual concept: the belief that to value the privacy of home and person and to afford its constitutional protection against the long reach of government is no less than to value human dignity, and that his privacy must not be disturbed except in case of overriding social need, and then only under stringent procedural safeguards." 16 2. Necessarily, then, if petitioner's alleged grievance, consisting of a disregard of the guarantee against unreasonable search and seizure, were substantiated, he could validly raise a constitutional question of sufficient gravity to entitle him to the remedies sought. For a failure to respect a constitutional command resulting in a deprivation of a constitutional right is visited by loss of jurisdiction. 17 Such is not the case, however. He did not even put in issue the validity of the search warrant, as a result of which there was a seizure of the money in question. For what were the facts on which the challenged order was based, facts binding on this Court? As set forth therein: "As a result of the raid conducted by a party of the Philippine Constabulary led by Lt. Alexander Aguirre at 4:00 o'clock in the afternoon of March 16, 1966, in virtue of a search warrant issued by the undersigned on March 14, 1966, the raiding party was able to arrest eight (8) participants in the game of "Monte" held in one of the rooms of the house of Oscar Villanueva at 6th Street, Bacolod City. Among the gambling paraphernalias seized during the raid is cash in the amount of P10,570.00, which the raiding party submitted to this Court in endorsing the search warrant, thus subjecting the gambling paraphernalia seized by the raiding party under the control of this Court. On March 24, 1966 the City Fiscal of Bacolod City filed an information for Violation of Art. 195 of the Revised Penal Code against the eight (8) apprehended persons named in the endorsement of the Philippine Constabulary. All the accused pleaded guilty and [were] convicted by the City Court. Upon recommendation of the Fiscal, however, only the amount of P220.00 was ordered forfeited in favor of the government and the amount of P10,350.00 was ordered to be returned

to Oscar Villanueva, the owner of the house, who issued the receipt for the amount with the condition that he will return the money if the higher authorities will require the return of the said amount." 18 Then respondent Judge, after referring to Philips vs. Municipal Mayor, 19 stated further in the order now under scrutiny: "In the light of the aforequoted ruling of the appellate court, it is clear that the Court of First Instance that issued the search warrant has jurisdiction over the amount of P10,350.00 and its wooden container. With regard to the contention of the counsel for the accused that the return of the amount of P10,350.00 is a moot question because the said amount is already spent by the accused, whatever defenses the accused may invoke to resist the return of the amount of money in question is futile and untenable by estoppel. The accused in issuing the corresponding receipt of the amount of P10,350.00 and the wooden box container, agreed to return the said amount and the box if the higher authorities may so require. The return of the amount of P10,350.00 and its wooden container. With regard to the contention money in the box is a part and parcel of the gambling paraphernalia seized by the raiding party of the Philippine Constabulary in the house of the accused Oscar Villanueva who is at present facing the charge for violation of the gambling law." 20 Even if the recital of the antecedents of the challenged order were less compelling in thus lending support to what was done by respondent Judge, still petitioner had failed to make out a case. For, had he entertained doubts as to the validity of the issuance of the search warrant or the manner in which it was executed, he was called upon to establish such a claim in court. He could rely on authoritative doctrines of this Court precisely to seek a judicial declaration of any illegal taint that he could, with plausibility, assert. 21 That he failed to do. The Rules of Court made clear what is to be done after the seizure of the property. Thus: "The officer must forthwith deliver the property to the municipal judge or judge of the city court or of the Court of First Instance which issued the warrant, together with a true inventory thereof duly verified by oath." 22 The legal custody was therefore appropriately with respondent Judge, who did authorize the issuance of such search warrant. Even

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if the money could validly be returned to petitioner, had it happened that in the meanwhile some other officer of the law had it in his possession, still, under the ruling of this Court in Molo v. Yatco, 23 there should be a motion for its restoration to petitioner that must be affirmatively acted upon by respondent Judge. Thus: "It appears from the present case that the documents and other papers belonging to the petitioner Mariano Molo, which were seized by a special agent of the Anti-Usury Board by virtue of a warrant issued by the Court of First Instance of Rizal, came into the possession of said board, and while it does not appear how said board came to have them in its possession, it is presumed that it was by virtue of an authority given by said court (see. 334, No. 31, Act No. 190). By virtue of said authority the board became an agent of the Court of First Instance of Rizal in the custody of the documents in question, with the obligation to return them to said court upon the termination of the investigation for which the board needed them. As the Anti-Usury Board had found no sufficient evidence to warrant a criminal action against the petitioner for violation of the Usury Law, and as said board had dismissed the case under investigation, it was duty bound to return said documents and papers to the Court of First Instance of Rizal so that the latter might order the return thereof to their owner." 24 Much less could the seizure, the validity of the search warrant being admitted, be open to question. As was set forth by Justice Malcolm in People v. Veloso: "The police officers were accordingly authorized to break down the door and enter the premises of the building occupied by the so-called Parliamentary Club. When inside, they then had the right to arrest the persons presumably engaged in a prohibited game, and to confiscate the evidence of the commission of the crime. It has been held that an officer making an arrest may take from the person arrested any money or property found upon his person, which was used in the commission of the crime or was the fruit of the crime, or which may furnish the person arrested with the means of committing violence or of escaping, or which may be used as evidence on the trial of the cause, but not otherwise." 25 3. There is an equally insurmountable obstacle to the grant of petitioner's prayer for the writs of certiorari and prohibition. There is included, as one of the annexes to his petition, the following: "Received from Assistant City Fiscal Jesus V. Ramos

the sum of [Ten Thousand Three Hundred Fifty] (P10,350.00) Philippine Currency. This money will be returned to him if the higher authorities will require the return of the same by legal orders, otherwise the same will not be returned." 26 It was executed on April 1, 1966 and duly signed by him. As previously noted, he would dispute the legality of the order requiring the return to enable him to avoid the effects of such a promise. Not only would he thus ignore his plighted word, but what is worse, he would impress on this Court a rather unorthodox notion of what legality connotes. His contention as to the failure of the challenged order to meet such a test is that he is the owner of such an amount. What he would conveniently ignore was the seizure thereof under a valid search warrant. The very constitutional guarantee relied upon does not preclude a search in one's home and the seizure of one's papers and effects as long as the element of reasonableness is not lacking. It cannot be correctly maintained then that just because the money seized did belong to petitioner, its return to the court that issued the search warrant could be avoided when precisely what the law requires is that it be deposited therein. As a matter of fact, what lacks the element of legality is the continued possession by petitioner. Resort to a higher tribunal then to nullify what was done by respondent Judge is futile and unavailing. WHEREFORE, the petition for prohibition and certiorari is dismissed and the writ of preliminary injunction under the resolution of this Court of June 21, 1966, lifted and set aside. With costs against petitioner. PEOPLE VS MARTI (SUPRA) GUANZON V DE VILLA Facts: The 41 petitioners alleged that the "saturation drive" or "aerial target zoning" that were conducted in their place (Tondo Manila) were unconstitutional. They alleged that there is no specific target house to be search and that there is no search warrant or warrant of arrest served. Most of the policemen are in their civilian clothes and without nameplates or identification cards. The residents were rudely rouse from their sleep by banging on the walls and windows of their houses. The residents were at the point of high-powered guns and herded like cows. Men were ordered to strip down to their briefs for the police to examine


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their tattoo marks. The residents complained that they're homes were ransacked, tossing their belongings and destroying their valuables. Some of their money and valuables had disappeared after the operation. The residents also reported incidents of maulings, spot-beatings and maltreatment. Those who were detained also suffered mental and physical torture to extract confessions and tactical informations. The respondents said that such accusations were all lies. Respondents contends that the Constitution grants to government the power to seek and cripple subversive movements for the maintenance of peace in the state. The aerial target zoning were intended to flush out subversives and criminal elements coddled by the communities were the said drives were conducted. They said that they have intelligently and carefully planned months ahead for the actual operation and that local and foreign media joined the operation to witness and record such event. Issue: Whether or Not the saturation drive committed consisted of violation of human rights. Held: It is not the police action per se which should be prohibited rather it is the procedure used or the methods which "offend even hardened sensibilities" .Based on the facts stated by the parties, it appears to have been no impediment to securing search warrants or warrants of arrest before any houses were searched or individuals roused from sleep were arrested. There is no showing that the objectives sought to be attained by the "aerial zoning" could not be achieved even as th rights of the squatters and low income families are fully protected. However, the remedy should not be brought by a tazpaer suit where not one victim complaints and not one violator is properly charged. In the circumstances of this taxpayers' suit, there is no erring soldier or policeman whom the court can order prosecuted. In the absence of clear facts no permanent relief can be given. In the meantime where there is showing that some abuses were committed, the court temporary restraint the alleged violations which are shocking to the senses. Petition is remanded to the RTC of

Manila. RULE 126 Section 13. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant. 2. SCOPE OF PROTECTION

CONSTITUION ART III Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. BURGOS VS CHIEF OF STAFF Two warrants were issued against petitioners for the search on the premises of Metropolitan Mail and We Forum newspapers and the seizure of items alleged to have been used in subversive activities. Petitioners prayed that a writ of preliminary mandatory and prohibitory injunction be issued for the return of the seized articles, and that respondents be enjoined from using the articles thus seized as evidence against petitioner. Petitioners questioned the warrants for the lack of probable cause and that the two warrants issued indicated only one and the same address. In addition, the items seized subject to the warrant were real properties. Issue: Whether or not the two warrants were valid to justify seizure of the items. Held: The defect in the indication of the same address in the two warrants was held by the court as a typographical error and immaterial in view of the correct determination of the place sought to be searched set forth in the application. The purpose and intent to search two distinct premises was evident in the issuance of the two warrant. As to the issue that the items seized were real

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properties, the court applied the principle in the case of Davao Sawmill Co. v. Castillo, ruling that machinery which is movable by nature becomes immobilized when placed by the owner of the tenement, property or plant, but not so when placed by a tenant, usufructuary, or any other person having only a temporary right, unless such person acted as the agent of the owner. In the case at bar, petitioners did not claim to be the owners of the land and/or building on which the machineries were placed. This being the case, the machineries in question, while in fact bolted to the ground remain movable property susceptible to seizure under a search warrant. However, the Court declared the two warrants null and void. Probable cause for a search is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. The Court ruled that the affidavits submitted for the application of the warrant did not satisfy the requirement of probable cause, the statements of the witnesses having been mere generalizations. Furthermore, jurisprudence tells of the prohibition on the issuance of general warrants. (Stanford vs. State of Texas). The description and enumeration in the warrant of the items to be searched and seized did not indicate with specification the subversive nature of the said items. KATZ VS US (SUPRA) RA 4200 AN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER RELATED VIOLATIONS OF THE PRIVACY OF COMMUNICATION, AND FOR OTHER PURPOSES. Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwise described: It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape

record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition. Section 2. Any person who willfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be unlawful in the preceding section or who violates the provisions of the following section or of any order issued thereunder, or aids, permits, or causes such violation shall, upon conviction thereof, be punished by imprisonment for not less than six months or more than six years and with the accessory penalty of perpetual absolute disqualification from public office if the offender be a public official at the time of the commission of the offense, and, if the offender is an alien he shall be subject to deportation proceedings. Section 3. Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; (2) that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of


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any person for, or to the solution of, or to the prevention of, any of such crimes; and (3) that there are no other means readily available for obtaining such evidence. The order granted or issued shall specify: (1) the identity of the person or persons whose communications, conversations, discussions, or spoken words are to be overheard, intercepted, or recorded and, in the case of telegraphic or telephonic communications, the telegraph line or the telephone number involved and its location; (2) the identity of the peace officer authorized to overhear, intercept, or record the communications, conversations, discussions, or spoken words; (3) the offense or offenses committed or sought to be prevented; and (4) the period of the authorization. The authorization shall be effective for the period specified in the order which shall not exceed sixty (60) days from the date of issuance of the order, unless extended or renewed by the court upon being satisfied that such extension or renewal is in the public interest. All recordings made under court authorization shall, within forty-eight hours after the expiration of the period fixed in the order, be deposited with the court in a sealed envelope or sealed package, and shall be accompanied by an affidavit of the peace officer granted such authority stating the number of recordings made, the dates and times covered by each recording, the number of tapes, discs, or records included in the deposit, and certifying that no duplicates or copies of the whole or any part thereof have been made, or if made, that all such duplicates or copies are included in the envelope or package deposited with the court. The envelope or package so deposited shall not be opened, or the recordings replayed, or used in evidence, or their contents revealed, except upon order of the court, which shall not be granted except upon motion, with due notice and opportunity to be heard to the person or persons whose conversation or communications have been recorded. The court referred to in this section shall be understood to mean the Court of First Instance within whose territorial jurisdiction the acts for which authority is applied for are to be executed. Section 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this

Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. Section 5. All laws inconsistent with the provisions of this Act are hereby repealed or accordingly amended. Section 6. This Act shall take effect upon its approval. Approved: June 19, 1965

C. TYPES 1. THROUGH SEARCH WARRANT RULE 126 Section 1. Search warrant defined. A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court. (1) PEOPLE VS ARUTA Facts: On Dec. 13, 1988, P/Lt. Abello was tipped off by his informant that a certain Aling Rosa will be arriving from Baguio City with a large volume of marijuana and assembled a team. The next day, at the Victory Liner Bus terminal they waited for the bus coming from Baguio, when the informer pointed out who Aling Rosa was, the team approached her and introduced themselves as NARCOM agents. When Abello asked aling Rosa about the contents of her bag, the latter handed it out to the police. They found dried marijuana leaves packed in a plastic bag marked cash katutak. Instead of presenting its evidence, the defense filed a demurrer to evidence alleging the illegality of the search and seizure of the items. In her testimony, the accused claimed that she had just come from Choice theatre where she watched a movie Balweg. While about to cross the road an old woman asked her for help in carrying a shoulder bag, when she was later on arrested by the police. She has no knowledge of the identity of the old woman and the woman was nowhere to be found. Also, no search warrant was presented. The trial court convicted the accused in violation of the dangerous drugs of 1972

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Issue: Whether or Not the police correctly searched and seized the drugs from the accused. Held: The following cases are specifically provided or allowed by law: 1. Warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court 8 and by prevailing jurisprudence 2. Seizure of evidence in "plain view," the elements of which are: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who had the right to be where they are; (c) the evidence must be immediately apparent, and (d) "plain view" justified mere seizure of evidence without further search; 3. Search of a moving vehicle. Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity; 4. Consented warrantless search; 5. Customs search; 6. Stop and Frisk; 7. Exigent and Emergency Circumstances. The essential requisite of probable cause must still be satisfied before a warrantless search and seizure can be lawfully conducted. The accused cannot be said to be committing a crime, she was merely crossing the street and was not acting suspiciously for the Narcom agents to conclude that she was committing a crime. There was no legal basis to effect a warrantless arrest of the accuseds bag, there was no probable cause and the accused was not lawfully arrested. The police had more than 24 hours to procure a search warrant and they did not do so. The seized marijuana was illegal and inadmissible evidence.

RULE 113, RULES OF COURT Section 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has 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; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraph (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. RULE 126, RULES OF COURT Section 2. Court where application for search warrant shall be filed. An application for search warrant shall be filed with the following: a) Any court within whose territorial jurisdiction a crime was committed. b) For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced. However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending. Section 7. 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


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liberate himself or any person lawfully aiding him when unlawfully detained therein. Section 12. Delivery of property and inventory thereof to court; return and proceedings thereon. (a) The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath. (b) Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge shall ascertain whether section 11 of this Rule has been complained with and shall require that the property seized be delivered to him. The judge shall see to it that subsection (a) hereof has been complied with. (c) The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge. A violation of this section shall constitute contempt of court. MANANLILI VS CA Manalili vs CA Facts: This is a petition for certiorari seeking the reversal of CAs decision in affirming TCs decision on convicting Manalili of illegal possession of prohibited drug violating RA 6425. Police operatives Espiritu, Lumabas and driver Enriquez conducted surveillance along the front of Kalookan Cemetery based on the information that drug addicts were roaming around in the area, saw a man who appeared to be high on drugs and introduced themselves as policemen. Said man avoided them and tried to resist, when they asked what the man was holding in his hand, the man held out his wallet and allowed Espiritu to examine it, who found what he suspected to be crushed mj leaves. The man was brought to the Anti-Narcotics Unit and turned out to be Manalili. The substance found on Manalilis wallet was sent to NBI Foresic Chemistry

Section and was confirmed as mj. Manalilis version of the story was that early afternoon he was riding in a tricycle when 3 policemen stopped the tricycle and informed them of the suspected possession of mj, the policemen bodily searched both Manalili and the driver and upon finding nothing illegal on their persons, let the driver go but brought Manalili along to the police station. Manalili while on the way to the station saw a neighbor whom he signaled to follow them and when he was again searched in the station, he was asked to strip his pants where they found nothing illegal. Said neighbor then asked the policemen to let Manalili go seeing as they had not found anything illegal but Manalili was put on a cell who was brought to a fiscal later that day and was told not to say anything despite his saying that the policemen had not found mj on his person. Said tricycle driver and neighbor testified on court as to how the 2 searches yielded nothing illegal on Manalilis person. Issues: 1. W/N evidence seized during a stop-and-frisk is admissible. 2. W/N Manalilis actions constituted a waiver of his rights. 3. W/N the evidence is sufficient to prove Manalilis guilt. Ruling: I. I. In Terry vs Ohio, a stop-and-frisk was defined as the vernacular designation of the right of a police officer to stop a citizen on the street, interrogate him and pat him for weapons: W)here a police officer observes an unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identified himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of

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himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapon seized may properly be introduced in evidence against the person from whom they were taken. It did not, however abandon the rule that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure, excused only by exigent circumstances. As People vs Lacerna enumerated 5 recognized exceptions to the rule against warrantless searches and seizures: 1) search incidental to lawful arrest; 2) search of moving vehicles; 3) seizure in plain view; 4) customs search; 5) waiver of the accused of his rights against unreasonable searches and seizures. From Espiritus experience as a member of the Anti -Narcotics Unit of Caloocan City Police, Manalilis suspicious behavior was characteristic of drug addicts who were high. II. SGs contention that Manalili effectively waived the inadmissibility of the evidence illegally obtained when he failed to raise this issue or object during trial. A valid waiver of right against unreasonable searches and seizures require the concurrence of these requisites: 1) the right to be waived existed; 2) the person waiving it had knowledge; and 3) he/she had actual intention to relinquish the right. In this case however, it is deemed that Manalili has waived such right for failure to raise its violation before the trial court, at the earliest opportunity possible. Issues not raised below cannot be pleaded for the first time on appeal. III. Manalilis contention that the charge was trumped up to extort money and testimonies of the arresting officers were inconsistent, it held that the tri alcourts assessment of the credibility of the witnesses particularly when affirmed by CA is accorded great weight and respect as it had opportunity to observe their demeanor and deportment as they testified before it. The elements of illegal possession of mj are: a) the accused is in possession of an item or object which is identified to be a prohibited drug; b) such possession is not authorized by law; and c) the

accused freely and consciously possessed the said drug. The substance found on Manalilis wallet was identified as mj which was prohibited and knowingly without authority. Considering that he was high and tried to avoid and resist, such behavior clearly shows that he knew he was holding mj and it was prohibited by law. B. VENUE OF APPLICATION; JURISDICTION OF COURT

RULE 126 Section 2. Court where application for search warrant shall be filed. An application for search warrant shall be filed with the following: a) Any court within whose territorial jurisdiction a crime was committed.

b) For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced.

MALALOAN V CA FACTS

- 1st Lt. Absalon V. Salboro of the CAPCOM Northern Sector (now Central Sector) filed with the Regional Trial Court of Kalookan City an application for search warrant. The search warrant was sought for in connection with an alleged violation of P.D. 1866 (Illegal Possession of Firearms and Ammunitions) perpetrated at No. 25 Newport St., corner Marlboro St., Fairview, QUEZON CITY. On March 23, 1990, respondent RTC Judge of KALOOKAN CITY issued Search Warrant No. 95-90.

- On the same day, at around 2:30 p.m., members of the CAPCOM, armed with subject search warrant, proceeded to the situs of the offense alluded to, where a labor seminar of the Ecumenical Institute for Labor Education and Research (EILER) was then taking place. According to CAPCOM's 'Inventory of Property Seized,' firearms, explosive materials and subversive documents, among others, were seized and taken during the search. And all the sixty-one (61) persons found within the premises searched were brought to Camp Karingal, Quezon City but most of them were later released, with the exception of the herein petitioners, EILER Instructors, who were indicted for violation of P.D. 1866 in Criminal Case No. Q-90-11757 before Branch 88 of the Regional Trial Court of Quezon City, presided over by respondent Judge Tirso D.C.


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Velasco.

- On July 10, 1990, petitioners presented a 'Motion for Consolidation, Quashal of Search Warrant and For the Suppression of All Illegally Acquired Evidence' before the Quezon City court; and a 'Supplemental Motion to the Motion for Consolidation, Quashal of Search Warrant and Exclusion of evidence Illegally Obtained'.

- On September 21, 1990, the respondent Quezon City Judge issued the challenged order, consolidating subject cases but denying the prayer for the quashal of the search warrant under attack, the validity of which warrant was upheld; opining that the same falls under the category of Writs and Processes, within the contemplation of paragraphs 3(b) of the Interim Rules and Guidelines, and can be serve not only within the territorial jurisdiction of the issuing court but anywhere in the judicial region of the issuing court (National Capital Judicial Region).

- Respondent Court of Appeals rendered judgment, in effect affirming that of the trial court, by denying due course to the petition for certiorari and lifting the temporary restraining order it had issued on November 29, 1990 in connection therewith. This judgment of respondent court is now impugned in and sought to be reversed through the present recourse before us.

ISSUE

WON a court may take cognizance of an application for a search warrant in connection with an offense committed outside its territorial jurisdiction and to issue a warrant to conduct a search on a place likewise outside its territorial jurisdiction.

HELD

YES - No law or rule imposes such a limitation on search warrants, in the same manner that no such restriction is provided for warrants of arrest. The arguments of petitioners are not inferable by necessary implication from the statutory provisions which are presumed to be complete and expressive of the intendment of the framers. A contrary interpretation on whatever pretext should not be countenanced. - A bit of legal history on his contestation will be helpful. The jurisdictional rule heretofore was that writs and process of the so-called inferior courts could be enforced outside the province

only with the approval of the former court of first instance. Under the Judiciary Reorganization Act, the enforcement of such writs and processes no longer needs the approval of the regional trial court. On the other hand, while, formerly, writs and processes of the then courts of first instance were enforceable throughout the Philippines, under the Interim or Transitional Rules and Guidelines, certain specified writs issued by a regional trial court are now enforceable only within its judicial region. - PRACTICAL CONSIDERATIONS The Court cannot be blind to the fact that it is extremely difficult, as it undeniably is, to detect or elicit information regarding the existence and location of illegally possessed or prohibited articles. The Court is accordingly convinced that it should not make the requisites for the apprehension of the culprits and the confiscation of such illicit items, once detected, more onerous if not impossible by imposing further niceties of procedure or substantive rules of jurisdiction through decisional dicta. For that matter, we are unaware of any instance wherein a search warrant was struck down on objections based on territorial jurisdiction.

- We do not believe that the enforcement of a search warrant issued by a court outside the territorial jurisdiction wherein the place to be searched is located would create a constitutional question. Nor are we swayed by the professed apprehension that the law enforcement authorities may resort to what could be a permutation of forum shopping, by filing an application for the warrant with a "friendly" court. It need merely be recalled that a search warrant is only a process, not an action. Furthermore, the constitutional mandate is translated into specifically enumerated safeguards in Rule 126 of the 1985 Rules on Criminal Procedure for the issuance of a search warrant, and all these have to be observed regardless of whatever court in whichever region is importuned for or actually issues a search warrant. Said requirements, together with the ten-day lifetime of the warrant would discourage resort to a court in another judicial region, not only because of the distance but also the contingencies of travel and the danger involved, unless there are really compelling reasons for the authorities to do so. Besides, it does seem odd that such constitutional protests have not been made against warrants of arrest which are enforceable indefinitely and anywhere although they involve, not only property and privacy, but persons and

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liberty.

- On the other hand, it is a matter of judicial knowledge that the authorities have to contend now and then with local and national criminal syndicates of considerable power and influence, political or financial in nature, and so pervasive as to render foolhardy any attempt to obtain a search warrant in the very locale under their sphere of control. Nor should we overlook the fact that to do so will necessitate the transportation of applicant's witnesses to and their examination in said places, with the attendant risk, danger and expense. Also, a further well-founded precaution, obviously born of experience and verifiable data, is articulated by the court a quo, as quoted by respondent court:

"This court is of the further belief that the possible leakage of information which is of utmost importance in the issuance of a search warrant is secured (against) where the issuing magistrate within the region does not hold court sessions in the city or municipality, within the region, where the place to be searched is located."

- The foregoing situations may also have obtained and were taken into account in the foreign judicial pronouncement that, in the absence of statutory restrictions, a justice of the peace in one district of the county may issue a search warrant to be served in another district of the county and made returnable before the justice of still another district or another court having jurisdiction to deal with the matters involved. In the present state of our law on the matter, we find no such statutory restrictions both with respect to the court which can issue the search warrant and the enforcement thereof anywhere in the Philippines.

- NONETHELESS, TO PUT DOUBTS TO REST, THE SUPREME COURT LAID DOWN THE FOLLOWING POLICY GUIDELINES; 1. The Court wherein the criminal case is pending shall have primary jurisdiction to issue search warrants necessitated by and for purposes of said case. An application for a search warrant may be filed with another court only under extreme and compelling circumstances that the applicant must prove to the satisfaction of the latter court which may or may not give due course to the application depending on the validity of the justification offered for not filing the same in the court with primary jurisdiction thereover.

2. When the latter court issues the search warrant, a motion to quash the same may be filed in and shall be resolved by said court, without prejudice to any proper recourse to the appropriate higher court by the party

aggrieved by the resolution of the issuing court. All grounds and objections then available, existent or known shall be raised in the original or subsequent proceedings for the quashal of the warrant, otherwise they shall be deemed waived.

3. Where no motion to quash the search warrant was filed in or resolved by the issuing court, the interested party may move in the court where the criminal case is pending for the suppression as evidence of the personal property seized under the warrant if the same is offered therein for said purpose. Since two separate courts with different participations are involved in this situation, a motion to quash a search warrant and a motion to suppress evidence are alternative and not cumulative remedies. In order to prevent forum shopping, a motion to quash shall consequently be governed by the omnibus motion rule, provided, however, that objections not available, existent or known during the proceedings for the quashal of the warrant may be raised in the hearing of the motion to suppress. The resolution of the court on the motion to suppress shall likewise be subject to any proper remedy in the appropriate higher court.

4. Where the court which issued the search warrant denies the motion to quash the same and is not otherwise prevented from further proceeding thereon, all personal property seized under the warrant shall forthwith be transmitted by it to the court wherein the criminal case is pending, with the necessary safeguards and documentation therefor.

5. These guidelines shall likewise be observed where the same criminal offense is charged in different informations or complaints and filed in two or more courts with concurrent original jurisdiction over the criminal action. When the issue of which court will try the case shall have been resolved, such court shall be considered as vested with primary jurisdiction to act on applications for search warrants incident to the criminal case.

Dispositive WHEREFORE, on the foregoing premises, the instant petition is DENIED and the assailed judgment of respondent Court of Appeals in CA-G.R. SP No. 23533 is hereby AFFIRMED.

PEOPLE VS CA

In behalf of the People, the Solicitor General has perfected the appeal at bar under Rule 45 of the Rules of Court from the Decision promulgated on September


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11, 1996 of the Fourteenth Division of the Court of Appeals.[if !supportFootnotes][1][endif] Said judgment dismissed the Peoples petition for certiorari to invalidate (i) the order of Judge Caesar A Casanova of Branch 80 of the Regional Trial Court dated February 9 1996,[if !supportFootnotes][2][endif] as well as (ii) that dated May 28, 1996 denying the Peoples motion for reconsideration.[if !supportFootnotes][3][endif] Those orders were handed down in Criminal Case No. 43-M-96, a case of illegal possession of explosives after the accused had been arraigned and entered a plea of not guilty to the charge. More particularly, the Order of February 9, 1996: 1) quashed a search warrant (No. 1068 [95]) issued

by Judge Marciano I. Bacalla of Branch 216 of the Regional Trial Court at Quezon City on December 15, 1995,[if !supportFootnotes][4][endif]

2) declared inadmissible for any purpose the items seized under the warrant, and

3) directed the turnover of the amount of U.S. $5,750.00 to the Court within five (5) days to be released thereafter in favor of the lawful owner considering that said amount was not mentioned in the Search Warrant."

The antecedents, culled from the records by the Appellate Court, are hereunder set out. 1. On December 14, 1995, S/Insp PNP James

Brillantes applied for search warrant before Branch 261, RTC of Quezon City against Mr. Azfar Hussain, who had allegedly in his possession firearms and explosives at Abigail Variety Store, Apt. 1207 Area F, Bagong Buhay Ave. Sapang Palay, San Jose del Monte Bulacan.

2. The following day, December 15, 1995, Search Warrant No. 1068 (95) against Mr. Hussain was issued not at Abigail Variety Store but at Apt. No. 1, immediately adjacent 9to0 Abigail Variety Store resulting in the arrest of four (4) Pakistani nationals and in the seizure of their personal belongings, papers and effects such as wallet, wrist watches, pair of shoes, jackets, t-shirts, belts, sunglasses and

travelling bags including cash amounting to $3,550.00 and P1,500.00 aside from US $5,175.00 (receipted) which were never mentioned in the warrant. The sum of $5,175.00 was however returned to the respondents upon order of the court on respondents motion or request. Included allegedly are one piece of dynamite stick; two pieces of plastic explosives C-4 type and one (1) fragmentation grenade. But without the items described in the search warrant are: (a) three (3) Ingram machine pistols; (b) four (4) gmm pistol; (c) blasting caps; (d) fuse; (e) assorted chemical ingredients for explosives; and (f) assorted magazine assg and ammunitions.

3. On December 19, 1995, three days after the warrant was served, a return was made without mentioning the personal belongings, papers and effects including cash belonging to the private respondents. There was no showing that lawful occupants were made to witness the search.

4. On January 22,1996, private respondents upon arraignment, pleaded not guilty to the offense charged; ** and on the same date, submitted their Extremely Urgent Motion (To Quash Search Warrant and to Declare Evidence Obtained Inadmissible), dated January 15, 1996;

5. ** According to the private respondents in their pleading (consolidated comment on petition for certiorari **): On January 29, 1996, an ocular inspection of the premises searched was conducted by respondent Judge and the following facts had been established as contained in the order dated January 30, 1996** to wit:

1) That the residence of all the accused is at Apartment No. 1 which is adjacent to the Abigails Variety

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Store;

2) That there is no such number as 1207 found in the building as it is correspondingly called only Apartment No. 1, 2, 3, and 4;

3) That Apartment No. 1 is separate from the Abigails Variety Store;

4) That there are no connecting doors that can pass from Abigails Variety Store to Apartment No. 1;

5) That Abigails Variety Store and Apartment No. 1 have its own respective doors used for ingress and egress.

That there being no objection on the said observation of the Court, let the same be reduced on the records.

SO ORDERED.

6. On February 9, 1996, respondent Judge ** issued its order duly granting the motion to quash search warrant **;[if !supportFootnotes][5][endif]

7. On February 12, 1996, private respondents filed the concomitant motion to dismiss **;

8. On February 19, 1996, Asst. Provincial Prosecutor Rolando Bulan filed a motion for reconsideration and supplemental motion on the order quashing the search warrant**;

9. On February 27, 1996 and March 12, 1996, private respondent filed opposition/comment and supplemental opposition/comment on the motion for reconsideration **:

10. On May 28, 1996, respondent Judge ** issued its order denying the motion for reconsideration **; (and on) June 11, 1996, private respondents filed extremely urgent reiterated motion to dismiss**.

Chiefly to nullify Judge Casanovas quashal Order of February 9, 1996 above referred to, the Solicitor General forthwith commenced a special civil action of certiorari in the Court of Appeals. The action did not prosper, however. As earlier mentioned, the Fourteenth Division of the Appellate Tribunal promulgated judgment on September 11, 1996, dismissing the case for lack of merit.

The judgment was grounded on the following propositions, to wit:[ 1. The place actually searched was different and

distinct from the place described in the search warrant. This fact was ascertained by the Trial Judge through an ocular inspection, the findings wherein, not objected to by the People, were embodied in an order dated January 30, 1996. The place searched, in which the accused (herein petitioners) were then residing, was Apartment No. 1. It is a place other than and separate from, and in no way connected with, albeit and adjacent to, Abigails Variety Store, the place stated in the search warrant.

2. The public prosecutors claim -- that the sketch submitted to Judge Bacalla relative to the application for a search warrant, actually


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depicted the particular place to be searched -- was effectively confuted by Judge Casanova who pointed out that said SKETCH was not dated, not signed by the person who made it and not even mentioned in the Search Warrant by the Honorable Judge (Bacalla, who) instead ** directed them to search Abigail Variety Store Apartment 1207 ** in the Order ** dated December 15, 1995 -- this, too, being the address given in the Application for Search Warrant dated December 14, 1995 requested by P/SR INSP. Roger James Brillantes, the Team Leader. The untenability of the claim is made more patent by the Peoples admission, during the hearing of its petition for certiorari in the Court of Appeals, that said sketch was in truth not attached to the application for search warrant ** (but) merely attached to the motion for reconsideration.

Quoted with approval by the Appellate Court were the following observations of Judge Casanova contained in his Order of May 28, 1996, viz.:

(d)** ** it is very clear that the place searched is different from the place mentioned in the Search Warrant, that is the reason why even P/SR. INSP Roger James Brillantes, SPO1 Prisco Bella and SPO4 Cesar D. Santiago, who were all EDUCATED, CULTURED and ADEPT to their tasks of being RAIDERS and who were all STATIONED IN BULACAN were not even able to OPEN THEIR MOUTH to say in TAGALOG with Honorable Judge who issued the Search Warrant the words KATABI, or KADIKIT or KASUNOD NG ABIGAIL VARIETY STORE ang papasukin namin or if they happen to be an ENGLISH speaking POLICEMEN, they were not

able to open their mouth even to WHISPER the ENGLISH WORDS RESIDE or ADJACENT or BEHIND or NEXT to ABIGAIL VARIETY STORE, the place they are going to raid.**.

3. The search was not accomplished in the presence of the lawful occupants of the place (herein private respondents) or any member of the family, said occupants being handcuffed and immobilized in the living room at the time. The search was thus done in violation of the law.[

4. The articles seized were not brought to the court within 48 hours as required by the warrant itself; (i)n fact the return was done after 3 days or 77 hours from service, in violation of Section 11, Rule 126 of the Rules of Court.[if

5. Judge Casanova correctly took cognizance of the motion to quash search warrant, pursuant to the doctrinal tenets laid down in Nolasco vs. Pao (139 SCRA 152) which overhauled the previous ruling of the Supreme Court in Templo vs. dela Cruz (60 SCRA 295). It is now the prevailing rule that whenever a search warrant has been issued by one court or branch thereof and a criminal case is initiated in another court or branch thereof as a result of the search of the warrant, that search warrant is deemed consolidated with the criminal case for orderly procedure. The criminal case is more substantial than the search warrant proceedings, and the presiding Judge in the criminal case has the right to rule on the search warrant and to exclude evidence unlawfully obtained (Nolasco & Sans cases).

6. Grave abuseof discretion cannot be imputed to the respondent Judge, in light of Article III,

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Section 2 of the Constitution and Rule 126 of the Rules of Court.

7. The proper remedy against the challenged Order is an appeal, not the special civil aciton of certiorari.

The Solicitor General now seeks reversal of the foregoing verdict ascribing to the Court of Appeals the following errors, to wit: 1) sanctioning the lower Courts precipitate act of

disregarding the proceedings before the issuing Court and overturning the latters determination of probable cause and particularity of the place to be searched;

2) sanctioning the lower Courts conclusion that the sketch was not attached to the application for warrant despite the clear evidence ** to the contrary;

3) ignoring the very issues raised in the petition before it:

4) holding that the validity of an otherwise valid warrant could be diminished by the tardiness by which the return is made;

5) hastly applying the general rule that certiorari cannot be made a substitute for appeal although the circumstances attending the case at bar clearly fall within the exceptions to that rule; and

6) depriving petitioner of the opportunity to present evidence to prove the validity of the warrant when the petition before it was abruptly resolved without informing petitioner thereof.

The whole case actually hinges on the question of whether or not a search warrant was validly issued as regards the apartment in which private respondents were then actually residing, or more explicitly, whether or not that particular apartment had been specifically described in the warrant.

The Government insists that the police officers who applied to the Quezon City RTC for the search warrant had direct, personal knowledge of the place to be searched and the things to be seized. It claims tha tone of said officers, infact, had been able to surreptitiously enter the place to be searched prior to the search: this being the first of four (4) separate apartments behind the Abigail Variety Store; and they were also the same police officers who eventually effected the search and seizure. They thus had personal knowledge of the place to be searched and had the competence to make a sketch thereof; they knew exactly what objects should be taken therefrom; and they had presented evidence sufficient to establish probable cause. That may be so; but unfortunately, the place they had in mind -- the first of four (4) separate apartment units (No. 1) at the rear of Abigail Variety Store -- was not what the Judge who issued the warrant himself had in mind, and was not what was ultimately described in the search warrant.

The discrepancy appears to have resulted from the officers own faulty depiction of the premises to be searched. For in their application and in the affidavit thereto appended, they wrote down a description of the place to be searched, which is exactly what the Judge reproduced in the search warrant: premises located at Abigail Variety Store Apt 1207, Area-F, Bagong Buhay Avenue, Sapang Palay, San Jose Del Monte, Bulacan. And the scope of the search was made more particular -- and more restrictive -- by the Judges admonition in the warrant that the search be limited only to the premises herein described.

Now, at the time of the application for a search warrant, there were at least five (5) distinct places in the area involved: the store known as Abigails Variety Store, and four (4) separate and independent residential apartment units. These are housed in a single structure and are contiguous to each other although there are no connecting doors through which a person could pass from the interior of one to any of the others. Each of the five (5) places is independent of the others, and may be entered only through its individual front door. Admittedly, the police officers did not intend a search of all five (5) places, but only one of the residential units at the rear of Abigails Variety Store: that immediately next to the store (Number 1).

However, despite having personal and direct knowledge of the physical configuration of the store and the apartments behind the store, the police officers failed to make Judge Bacalla understand the need to pinpoint Apartment No. 1 in the warrant. Even after having received the warrant -- which directs that the


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search be limited only to the premises herein described, Abigail Variety Store Apt 1207 -- thus literally excluding the apartment units at the rear of the store -- they did not ask the Judge to correct said description. They seem to have simply assumed that their own definite idea of the place to be searched -- clearly indicated, according to them, in the sketch they claim to have submitted to Judge Bacalla in support of their application -- was sufficient particularization of the general identification of the place in the search warrant.

The Solicitor General argues that this assumption is sanctioned by Burgos, Sr. v. Chief of Staff, AFP, allegedly to the effect that the executing officers prior knowledge as to the place intended in the warrant is relevant, and he may, in case of any ambiguity in the warrant as to the place to be searched, look to the affidavit in the official court file. Burgos is inapplicable. That case concerned two (2) search warrants which, upon perusal, immediately disclosed an obvious typographical error. The application in said case was for seizure of subversive material allegedly concealed in two places: one at No. 19. Road 3, Project 6, Quezon City; and the other, at "784 Units C & D. RMS Building, Quezon Avenue, Quezon City;" Two (2) warrants issued -- No. 20-82 [a] and No. 20-82 [b]). Objection was made to the execution of Warrant No. 20-82 (b) at 784 Units C & D, RMS Building, Quezon Avenue, Quezon City because both search warrants apparently indicated the same address (No. 19, Road 3, Project 6, Quezon City) as the place where the supposedly subversive material was hidden. This was error, of course but, as this Court there ruled, the error was obviously typographical, for it was absurd to suppose that the Judge had issued two warrants for the search of only one place. Adverting to the fact that the application for the search warrants specified two (2) distinct addresses, and that in fact the address, 784 Units C&D, RMS Building, Quezon Avenue, Quezon City appeared in the opening paragraph of Warrant 20-82 (b), this Court concluded that evidently, this was the address the judge intended to be searched when he issued the second warrant (No. 20-82 [b]); and to clear up the ambiguity caused by the obviously typographical error, the officer executing the warrant could consult the records in the official court file.

The case at bar, however, does not deal with the correction of an obvious typographical erro involving ambiguous descriptions of the place to be searched, as in Burgos, but the search of a place different from that

clearly and without ambiguity identified in the search warrant. In Burgos, the inconsistency calling for clarification was immediately perceptible on the face of the warrants in question. In the instant case, there is no ambiguity at all in the warrant. The ambiguity lies outside the instrument, arising from the absence of a meeting of minds as to the place to be searched between the applicants for the warrant and the Judge issuing the same; and what was done was to substitute for the place that the judge had written down in the warrant, the premises that the executing officers had in their mind. This should not have been done. It is neither fair nor licit to allow police officers to search a place different from that stated in the warrant on the claim that the place actually searched -- although not that specified in the warrant -- is exactly what they had in view when they applied for the warrant and had demarcated in their supporting evidence. What is material in determining the validity of a search is the place stated in the warrant itself, not what the applicants had in their thoughts, or had represented in the proofs they submitted to the court issuing the warrant. Indeed, following the officers theory, in the context of the facts of this case, all four (4) apartment units at the rear of Abigails Variety Store would have been fair game for a search.

The place to be searched, as set out in the warrant, cannot be amplified or modified by the officers own personal knowledge of the premises, or the evidence they adduced in support of their application for the warrant. Such a change is proscribed by the Constitution which requires inter alia the search warrant to particularly describe the place to be searched as well as the persons or things to be seized. It would concede to police officers the power of choosing the place to be searched, even if not be that delineated in the warrant. It would open wide the door to abuse of search process, and grant to officers executing a search warrant that discretion which the Constitution has precisely removed from them. The particularization of the description of the place to be searched may properly be done only by the Judge, and only in the warrant itself; it cannot be left to the discretion of the police officers conducting the search.

The Government faults Judge Casanova for having undertaken a review of Judge Bacallas finding of probable cause, as if he were an appellate court. A perusal of the record however shows that all that Judge Casanova did was merely to point out inconsistencies

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between Judge Bacalla' Order of December 15, 1995 and the warrant itself, as regards the identities of the police officers examined by Judge Bacalla. In Judge Casanovas view, said inconsistencies, being quite apparent in the record, put in doubt the sufficiency of the determination of the facts on which the search warrant was founded.

The Government alleges that the officers had satisfactorily established probable cause before Judge Bacalla for the issuance of a search warrant. While this may be conceded, the trouble is, to repeat, that the place described in the search warrant -- which, of course, is the only place that may be legitimately searched in virtue thereof -- was not that which the police officers who applied for the warrant had in mind, with the result that what they actually subjected to search-and-seizure operations was a place other than that stated in the warrant. In fine, while there was a search warrant more or less properly issued as regards Abigails Variety Store, there was none for Apartment No. 1 -- the first of the four (4) apartment units at the rear of said store, and precisely the place in which the private respondents were then residing.

It bears stressing that under Section 2, Article III of the Constitution, providing that: 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 af

search and seizure crimpro

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