search and seizure digests 1

8/10/2019 Search and Seizure Digests 1

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2. Restricted from traveling; and/or3. Prohibited from using any cellular phones, computers, or other means of communications

with people outside their residence.

Sec.39. Seizure and Sequestration.- The deposits and their outstanding balances, placements,trust accounts, assets, and records in any bank or financial institution, moneys, businesses,transportation and communication equipment, supplies and other implements, and property ofwhatever kind and nature belonging:

To any person charged with or suspected of the crime of terrorism or conspiracy to committerrorism;to a judicially declared and outlawed terrorist organization or group of persons;to a member of such judicially declared and outlawed organization, association or group ofpersons,-shall be seized, sequestered, and frozen in order to prevent their use, transfer or conveyance forpurposes that are inimical to the safety and security of the people or injurious to the interest of theState.

The accused or suspect may withdraw such sums as are reasonably needed by his familyincluding the services of his counsel and his familys medical needs upon approval of the court.He or she may also use any of his property that is under seizure or sequestration or frozenbecause of his/her indictment as a terrorist upon permission of the court for any legitimatereason.

Sec.40. The seized, sequestered and frozen bank depositsshall be deemed property held intrust by the bank or financial institution and that their use or disposition while the case is pendingshall be subject to the approval of the court before which the case or cases are pending.

Sec.41. If the person suspected as terrorist is acquitted after arraignment or his case dismissedbefore his arraignment by a competent court, the seizureshall be lifted by the investigating bodyor the competent court and restored to him without delay. The filing of an appeal or motion forreconsideration shall not stay the release of said funds from seizure, sequestration and freezing.

If convicted, said seized, sequestered and frozen assets shall automatically forfeited in favor ofthe government.

CASES

UY VS BUREAU OF INTERNAL REVENUE, 344 SCRA 36Search and SeizureRequisites of a Valid Search WarrantIn Sept 1993, Rodrigo Abos, a former employee of UPC reported to the BIR that Uy Chin Ho aka Frank Uy,manager of UPC, was selling thousands of cartons of canned cartons without issuing a report. This is a violation ofSec 253 & 263 of the Internal Revenue Code. In Oct 1993, the BIR requested before RTC Cebu to issue a searchwarrant. Judge Gozo-Dadole issued a warrant on the same day. A second warrant was issued which contains thesame substance but has only one page, the same was dated Oct 1st 2003. These warrants were issued for thealleged violation by Uy of Sec 253. A third warrant was issued on the same day for the alleged violation of Uy ofSec 238 in relation to sec 263. On the strength of these warrants, agents of the BIR, accompanied by members of

the PNP, on 2 Oct 1993, searched the premises of the UPC. They seized, among other things, the records anddocuments of UPC. A return of said search was duly made by Labaria with the RTC of Cebu. UPC filed a motion toquash the warrants which was denied by the RTC. They appealed before the CA via certiorari. The CA dismissedthe appeal for a certiorari is not the proper remedy.ISSUE: Whether or not there was a valid search warrant issued.HELD: The SC ruled in favor of UPC and Uy in a way for it ordered the return of the seized items but sustained thevalidity of the warrant. The SC ruled that the search warrant issued has not met some basic requisites of validity. Asearch warrant must conform strictly to the requirements of the foregoing constitutional and statutory provisions.These requirements, in outline form, are:

(1) the warrant must be issued upon probable cause;(2) the probable cause must be determined by the judge himself and not by the applicant or any other person;


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(3) in the determination of probable cause, the judge must examine, under oath or affirmation, the complainantand such witnesses as the latter may produce; and

(4) the warrant issued must particularly describe the place to be searched and persons or things to be seized.The SC noted that there has been inconsistencies in the description of the place to be searched as indicated in thesaid warrants. Also the thing to be seized was not clearly defined by the judge. He used generic itineraries. Thewarrants were also inconsistent as to who should be searched. One warrant was directed only against Uy and theother was against Uy and UPC. The SC however noted that the inconsistencies wered cured by the issuance of thelatter warrant as it has revoked the two others.

Section 2, Article III of the Constitution guarantees the right of the people against unreasonable searches andseizures:The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searchesand seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrestshall issue except upon probable cause to be determined personally by the judge after examination under oath oraffirmation of the complainant and the witnesses he may produce, and particularly describing the place to besearched and the persons or things to be seized.

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

PEOPLE VS COURT OF APPEALS, 291 SCRA 400The general rule is that search warrants must be served during the daytime (protect the public from theabrasiveness of official intrusions). Exception: a search at any reasonable hour of day or night may be made whenthe application asserts that the property in on the person or place ordered to be searched. Absence of abuse ofdiscretion, a search conducted at night where so allowed is not improperAbigails Variety Store VOID warrantthe claim that the place actually searched although not the one specifiedin the warrant is exactly what they had in view when they applied for the warrant is unacceptable. What is

material in determining the validity of the warrant is the place stated in the warrant, not the one they had in theirthoughts; particularization of description may properly be done only by the judge and only in the warrant itself.

A petition for certiorari has been filed to invalidate the order of Judge Casanova which quashed search warrantissued by Judge Bacalla and declared inadmissible for any purpose the items seized under the warrant.An application for a search warrant was made by S/Insp Brillantes against Mr. Azfar Hussain who had allegedly inhis possession firearms and explosives at Abigail Variety Store, Apt 1207 Area F. Bagon Buhay Avenue, SarangPalay, San Jose Del Monte, Bulacan. The following day Search Warrant No. 1068 was issued but was served notat Abigail Variety Store but at Apt. No. 1, immediately adjacent to Abigail Variety Store resulting in the arrest of 4Pakistani nationals and the seizure of a number of different explosives and firearms.ISSUE: WON a search warrant was validly issued as regard the apartment in which private respondents were thenactually residing, or more explicitly, WON that particular apartment had been specifically described in the warrant.HELD: 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 tosubstitute for the place that the Judge had written down in the warrant, the premises that the executing officers hadin their mind. This should not have been done. It is neither fair nor licit to allow police officers to search a placedifferent from that stated in the warrant on the claim that the place actually searched although not that specifiedin the warrant is exactly what they had in view when they applied for the warrant and had demarcated in theirsupporting 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 issuingthe warrant.The place to be searched, as set out in the warrant, cannot be amplified or modified by the officers' own personalknowledge of the premises, or the evidence they adduced in support of their application for the warrant. Such achange is proscribed by the Constitution which requires inter alia the search warrant to particularly describe theplace to be searched as well as the persons or things to be seized. It would concede to police officers the power of


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choosing the place to be searched, even if it not be that delineated in the warrant. It would open wide the door toabuse of the search process, and grant to officers executing a search warrant that discretion which the Constitutionhas precisely removed from them. The particularization of the description of the place to be searched may properlybe done only by the Judge, and only in the warrant itself; it cannot be left to the discretion of the police officersconducting the search.

PEOPLE VS ARUTA, 288 SCRA 626

Search and SeizureInformers TipAs a general rule: Validity of warrantless searches and seizures as a result of an informers tipOn December 13, 1988, Olongapo Police received a tip regarding 8.5 kilos of marijuanaIn the morning of 13 Dec 1988, the law enforcement officers received information from an informant named Benjiethat a certain Aling Rosa would be leaving for Baguio City on 14 Dec 1988 and would be back in the afternoon ofthe same day carrying with her a large volume of marijuana; At 6:30 in the evening of 14 Dec 1988, Aruta alightedfrom a Victory Liner Bus carrying a travelling bag even as the informant pointed her out to the law enforcementofficers; NARCOM officers approached her and introduced themselves as NARCOM agents; When asked by Lt.Abello about the contents of her travelling bag, she gave the same to him; When they opened the same, theyfound dried marijuana leaves; Aruta was then brought to the NARCOM office for investigation.ISSUE: Whether or not the conducted search and seizure is constitutional.HELD: The SC ruled in favor of Aruta and has noted that some drug traffickers are being freed due to technicalities.Aruta cannot be said to be committing a crime. Neither was she about to commit one nor had she just committed acrime. Aruta was merely crossing the street and was not acting in any manner that would engender a reasonableground for the NARCOM agents to suspect and conclude that she was committing a crime. It was only when theinformant pointed to Aruta and identified her to the agents as the carrier of the marijuana that she was singled outas the suspect. The NARCOM agents would not have apprehended Aruta were it not for the furtive finger of theinformant because, as clearly illustrated by the evidence on record, there was no reason whatsoever for them tosuspect that accused-appellant was committing a crime, except for the pointing finger of the informant. The SCcould neither sanction nor tolerate as it is a clear violation of the constitutional guarantee against unreasonablesearch and seizure. Neither was there any semblance of any compliance with the rigid requirements of probablecause and warrantless arrests. Consequently, there was no legal basis for the NARCOM agents to effect awarrantless search of Arutas bag, there being no probable cause and the accused -appellant not having beenlawfully arrested. Stated otherwise, the arrest being incipiently illegal, it logically follows that the subsequent searchwas similarly illegal, it being not incidental to a lawful arrest. The constitutional guarantee against unreasonablesearch and seizure must perforce operate in favor of accused-appellant. As such, the articles seized could not beused as evidence against accused-appellant for these are fruits of a poisoned tree and, therefore, must be

rejected, pursuant to Article III, Sec. 3(2) of the Constitution.

NOTES:When is a warrantless search allowed?

1. Warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rulesof 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, andd) plain view justified mere seizure of evidence without further search;

3. Search of a moving vehicle. Highly regulated by the government, the vehicles inherent mobility

reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highlyreasonable suspicion amounting to probable cause that the occupant committed a criminal activity;4. Consented warrantless search;5. Customs search;6. Stop and Frisk; and7. Exigent and Emergency Circumstances.

PEOPLE VS MONTILLA, 284 SCRA 703Political LawSearch and SeizureInformers Tip Warrantless ArrestDasmarinas, Cavite Police received a tip on June 19, 1994. The marijuana courier will alight at the waiting shed ofBarangay Salitran, Dasmarinas, Cavite, 28 kilos of marijuana.


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On 19 June 1994 at about 2pm, police officers Talingting and Clarin were informed by an asset that a drug courierwould be arriving from Baguio to Dasmarias carrying an undetermined amount of marijuana. The next day, theinformant pointed at Montilla as the courier who was waiting in a waiting shed Brgy Salitran, Dasmarias. Montillawas then apprehended and he was caught in possession of a bag and a carton worth 28 kilos of marijuana. Montilladenied the allegation and he said he came to Cavite from Baguio for work and he does not have any effects withhim at that time except for some pocket money. He was sentenced to death thereafter. He averred that the searchand seizure conducted was illegal for there was no warrant and that he should have been given the opportunity tocross examine the informant. He said that if the informant has given the cops the information about his arrival as

early as the day before his apprehension, the cops should have ample time to secure a search warrant.ISSUE: Whether or not the warrantless arrest conducted is legal.HELD: The SC ruled that the warrantless arrest is legal and so was the warrantless search. Sec 2 Art 3 of theConstitution has its exception when it comes to warrantless searches, they are:

(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;(6) stop and frisk measures have been invariably recognized as the traditional exceptions.

In the case at bar, it should be noted that the information relayed by informant to the cops was that there would bedelivery of marijuana at Barangay Salitran by a courier coming from Baguio 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 thesecircumstances; the information relayed was too sketchy and not detailed enough for the obtention of thecorresponding arrest or search warrant. While there is an indication that the informant knew the courier, the recordsdo not reveal that he knew him by name.On such bare information, the police authorities could not have properly applied for a warrant, assuming that theycould readily have access to a judge or a court that was still open by the time they could make preparations forapplying therefor, and on which there is no evidence presented by the defense. In determining the opportunity forobtaining warrants, not only the intervening time is controlling but all the coincident and ambient circumstancesshould be considered, especially in rural areas.A legitimate warrantless arrest, as above contemplated, necessarily cloaks the arresting police officer with authorityto 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.

PEOPLE VS RACHO, GR186529On May 19, 2003, a confidential agent of the police transacted through cellular phone with appellant for thepurchase of shabu. The agent reported the transaction to the police authorities who immediately formed a team toapprehend the appellant. The team members posted themselves along the national highway in Baler, Aurora, andat around 3:00 p.m. of the same day, a Genesis bus arrived in Baler. When appellant alighted from the bus, theconfidential agent pointed to him as the person he transacted with, and when the latter was about to board atricycle, the team approached him and invited him to the police station as he was suspected of carrying shabu.When he pulled out his hands from his pants pocket, a white envelope slipped therefrom which, when opened,yielded a small sachet containing the suspected drug. The team then brought appellant to the police station forinvestigation and the confiscated specimen was marked in the presence of appellant. The field test and laboratoryexaminations on the contents of the confiscated sachet yielded positive results for methamphetaminehydrochloride. Appellant was charged in two separate informations, one for violation of Section 5 of R.A. 9165, fortransporting or delivering; and the second, of Section 11 of the same law for possessing, dangerous drugs. During

the arraignment, appellant pleaded "Not Guilty" to both charges.On July 8, 2004, the RTC rendered a Joint Judgment convicting appellant of Violation of Section 5, Article II, R.A.9165 but acquitted him of the charge of Violation of Section 11, Article II, R.A. 9165. On appeal, the CA affirmed theRTC decision. The appellant brought the case to SC assailing for the first time he legality of his arrest and thevalidity of the subsequent warrantless search.ISSUE: Whether or not the appellant has a ground to assail the validity of his arrest.HELD: The long standing rule in this jurisdiction is that "reliable information" alone is not sufficient to justify awarrantless arrest. The rule requires, in addition, that the accused perform some overt act that would indicate thathe has committed, is actually committing, or is attempting to commit an offense. We find no cogent reason to departfrom this well-established doctrine. Appellant herein was not committing a crime in the presence of the policeofficers. Neither did the arresting officers have personal knowledge of facts indicating that the person to be arrestedhad committed, was committing, or about to commit an offense. At the time of the arrest, appellant had just alighted


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from the Gemini bus and was waiting for a tricycle. Appellant was not acting in any suspicious manner that wouldengender a reasonable ground for the police officers to suspect and conclude that he was committing or intendingto commit a crime. Were it not for the information given by the informant, appellant would not have beenapprehended and no search would have been made, and consequently, the sachet of shabu would not have beenconfiscated. Neither was the arresting officers impelled by any urgency that would allow them to do away with therequisite warrant. As testified to by Police Officer 1 Aurelio Iniwan, a member of the arresting team, their officereceived the "tipped information" on May 19, 2003. They likewise learned from the informant not only theappellants physical description but also his name. Although it was not certain that appellant would arrive on the

same day (May 19), there was an assurance that he would be there the following day(May 20). Clearly, the policehad ample opportunity to apply for a warrant.

PEOPLE VS CLAUDIO, 160 SCRA 646There is probable cause in the Warrantless search of a bag (behind him in a bus) by a NARCOM agent when heallegedly smelled marijuana therein. By reason of his training, he could smell marijuana and therefore, he haspersonal knowledge and therefore, probable cause was present making the search legal.

PEOPLE VS AMINNUDIN Y AHNI, JULY 6, 1988M/V Wilcon; marijuananot caught in flagrante delicto; search was unreasonable; evidence inadmissible.Tip received by the Iloilo City Police from informant in Zamboanga city that accused has marijuana in his bag doesnot amount to probable cause because the Iloilo Police have no personal knowledge. Further, there was plenty oftime to secure a search warrant from the court.

PEOPLE VS MALMSTEDT, 198 SCRA 401In an information filed against the accused- appellant Mikael Malmstead was charged before the RTC of LaTrinidad, Benguet, for violation of Section 4, Art. II of Republic Act 6425, as amended, otherwise known as theDangerous Drugs Act of 1972, as amended.Accused Mikael Malmstedt, a Swedish national, entered the Philippines for the third time in December 1988 as atourist. He had visited the country sometime in 1982 and 1985. In the evening of 7 May 1989, accused left forBaguio City. Upon his arrival thereat in the morning of the following day, he took a bus to Sagada and stayed in thatplace for two (2) days. Then in the 7 in the morning of May 11, 1989, the accused went to Nangonogan bus stop inSagada. At about 8: 00 o'clock in the morning of that same day (11 May 1989), Captain Alen Vasco, theCommanding Officer of the First Regional Command (NARCOM) stationed at Camp Dangwa, ordered his men to

set up a temporary checkpoint at Kilometer 14, Acop, Tublay, Mountain Province, for the purpose of checking allvehicles coming from the Cordillera Region. The order to establish a checkpoint in the said area was prompted bypersistent reports that vehicles coming from Sagada were transporting marijuana and other prohibited drugs.Moreover, information was received by the Commanding Officer of NARCOM, that same morning that a Caucasiancoming from Sagada had in his possession prohibited drugs. The group composed of seven (7) NARCOM officers,in coordination with Tublay Police Station, set up a checkpoint at the designated area at about 10:00 o'clock in themorning and inspected all vehicles coming from the Cordillera Region.The two (2) NARCOM officers started their inspection from the front going towards the rear of the bus. Accusedwho was the sole foreigner riding the bus was seated at the rear thereof.During the inspection, CIC Galutan noticed a bulge on accused's waist. Suspecting the bulge on accused's waist tobe a gun, the officer asked for accused's passport and other identification papers. When accused failed to comply,the officer required him to bring out whatever it was that was bulging on his waist. The bulging object turned out tobe a pouch bag and when accused opened the same bag, as ordered, the officer noticed four (4) suspicious-

looking objects wrapped in brown packing tape, prompting the officer to open one of the wrapped objects. Thewrapped objects turned out to contain hashish, a derivative of marijuana.Thereafter, accused was invited outside the bus for questioning. But before he alighted from the bus, accusedstopped to get two (2) travelling bags from the luggage carrier. Upon stepping out of the bus, the officers got thebags and opened them. A teddy bear was found in each bag. Feeling the teddy bears, the officer noticed that therewere bulges inside the same which did not feel like foam stuffing. It was only after the officers had opened the bagsthat accused finally presented his passport.Accused was then brought to the headquarters of the NARCOM at Camp Dangwa, La Trinidad, Benguet for furtherinvestigation. At the investigation room, the officers opened the teddy bears and they were found to also containhashish. Representative samples were taken from the hashish found among the personal effects of accused andthe same were brought to the PC Crime Laboratory for chemical analysis.


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In the chemistry report, it was established that the objects examined were hashish. a prohibited drug which is aderivative of marijuana. Thus, an information was filed against accused for violation of the Dangerous Drugs Act.ACCUSEDS DEFENSE: During the arraignment, accused entered a plea of "not guilty." For his defense, he raisedthe issue of illegal search of his personal effects. He also claimed that the hashish was planted by the NARCOMofficers in his pouch bag and that the two (2) travelling bags were not owned by him, but were merely entrusted tohim by an Australian couple whom he met in Sagada. He further claimed that the Australian couple intended to takethe same bus with him but because there were no more seats available in said bus, they decided to take the nextride and asked accused to take charge of the bags, and that they would meet each other at the Dangwa Station.

The trial court found the guilt of the accused Mikael Malmstedt established beyond reasonable doubt.Seeking the reversal of the decision of the trial court finding him guilty of the crime charged, accused argues thatthe search of his personal effects was illegal because it was made without a search warrant and, therefore, theprohibited drugs which were discovered during the illegal search are not admissible as evidence against him.ISSUE: Whether or Not the contention of the accused is valid, and therefore the RTC ruling be reversed.HELD: The Constitution guarantees the right of the people to be secure in their persons, houses, papers andeffects against unreasonable searches and seizures. However, where the search is made pursuant to a lawfularrest, there is no need to obtain a search warrant. A lawful arrest without a warrant may be made by a peaceofficer or a private person under the following circumstances.

Sec. 5 Arrest without warrant; when lawful. A peace officer or a private person may, without awarrant, arrest a person:(a) When, in his presence, the person to be arrested has committed is actually committing, or isattempting to commit an offense;(b) When an offense has in fact just been committed, and he has personal knowledge of factsindicating 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 orplace where he is serving final judgment or temporarily confined while his case is pending, or hasescaped while being transferred from one confinement to another.

Accused was searched and arrested while transporting prohibited drugs (hashish). A crime was actually beingcommitted by the accused and he was caught in flagrante delicto. Thus, the search made upon his personal effectsfalls squarely under paragraph (1) of the foregoing provisions of law, which allow a warrantless search incident to alawful arrest. While it is true that the NARCOM officers were not armed with a search warrant when the search wasmade over the personal effects of accused, however, under the circumstances of the case, there was sufficientprobable cause for said officers to believe that accused was then and there committing a crime.Probable cause has been defined as such facts and circumstances which could lead a reasonable, discreet andprudent man to believe that an offense has been committed, and that the objects sought in connection with theoffense are in the place sought to be searched. Warrantless search of the personal effects of an accused has been

declared by this Court as valid, because of existence of probable cause, where the smell of marijuana emanatedfrom a plastic bag owned by the accused, 10 or where the accused was acting suspiciously, 11 and attempted toflee.The appealed judgment of conviction by the trial court is hereby affirmed. Costs against the accused-appellant.

STONEHILL VS DIOKNO, JUNE 19, 1967General warrant for violation of CB Laws, TCC, NIRC and RPCSearch and SeizureGeneral WarrantsAbandonment of the Moncado DoctrineStonehill et al and the corporation they form were alleged to have committed acts in violation of Central BankLaws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code. By the strength of thisallegation a search warrant was issued against their persons and their corporation. The warrant provides authorityto 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, creditjournals, typewriters, and other documents and/or papers showing all business transactions includingdisbursements receipts, balance sheets and profit and loss statements and Bobbins (cigarette wrappers).The documents, papers, and things seized under the alleged authority of the warrants in question may be split into(2) major groups, namely:

a. those found and seized in the offices of the aforementioned corporations andb. those found seized in the residences of petitioners herein.

Stonehill averred that the warrant is illegal for:(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;


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(3) the warrants were issued to fish evidence against the aforementioned petitioners in deportation cases filedagainst 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.The prosecution counters, invoking the Moncado doctrine, that the defects of said warrants, if any, were cured bypetitioners consent; and (3) that, in any event, the effects seized are admissible in evidence against them. In short,the criminal cannot be set free just because the government blunders.

ISSUE: Whether or not the search warrant issued is valid.HELD: The SC ruled in favor of Stonehill et al. The SC emphasized however that Stonehill et al cannot assail thevalidity of the search warrant issued against their corporation for Stonehill are not the proper party hence has nocause of action. It should be raised by the officers or board members of the corporation. The constitution protectsthe peoples right against unreasonable search and seizure. It provides; (1) that no warrant shall issue but uponprobable cause, to be determined by the judge in the manner set forth in said provision; and (2) that the warrantshall particularly describe the things to be seized. In the case at bar, none of these are met. The warrant wasissued from mere allegation that Stonehill et al committed a violation of Central Bank Laws, Tariff and CustomsLaws, Internal Revenue (Code) and Revised Penal Code. In other words, no specific offense had been alleged insaid applications. The averments thereof with respect to the offense committed were abstract. As a consequence, itwas impossible for the judges who issued the warrants to have found the existence of probable cause, for the samepresupposes the introduction of competent proof that the party against whom it is sought has performed particularacts, or committed specific omissions, violating a given provision of our criminal laws. As a matter of fact, theapplications involved in this case do not allege any specific acts performed by herein petitioners. It would be a legalheresy, 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 withoutreference to any determinate provision of said laws or codes.The grave violation of the Constitution made in the application for the contested search warrants was compoundedby 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, creditjournals, typewriters, and other documents and/or papers showing all business transactions including disbursementreceipts, balance sheets and related profit and loss statements.Thus, the warrants authorized the search for and seizure of records pertaining to all business transactions ofStonehill et al, regardless of whether the transactions were legal or illegal. The warrants sanctioned the seizure ofall records of Stonehill et al and the aforementioned corporations, whatever their nature, thus openly contraveningthe explicit command of the Bill of Rights that the things to be seized be particularly described as well astending to defeat its major objective: the elimination of general warrants. The Moncado doctrine is likewise

abandoned and the right of the accused against a defective search warrant is emphasized.

BACHE VS RUIZ, 37 SCRA 823Search and SeizurePersonal Examination of the JudgeThe clerk of court received the evidence of the applicant for a search warrantOn 24 Feb 1970, Commissioner Vera of Internal Revenue, wrote a letter addressed to J Ruiz requesting theissuance of a search warrant against petitioners for violation of Sec 46(a) of the NIRC, in relation to all otherpertinent provisions thereof, particularly Sects 53, 72, 73, 208 and 209, and authorizing Revenue Examiner deLeon make and file the application for search warrant which was attached to the letter. The next day, de Leon andhis witnesses went to CFI Rizal to obtain the search warrant. At that time J Ruiz was hearing a certain case; so, bymeans of a note, he instructed his Deputy Clerk of Court to take the depositions of De Leon and Logronio. After thesession had adjourned, J Ruiz was informed that the depositions had already been taken. The stenographer read

to him her stenographic notes; and thereafter, J Ruiz asked respondent Logronio to take the oath and warned himthat if his deposition was found to be false and without legal basis, he could be charged for perjury. J Ruiz signedde Leons application for search warrant and Logronios deposition. The search was subsequently conducted. ISSUE: Whether or not there had been a valid search warrant.HELD: The SC ruled in favor of Bache on three grounds.

1. J Ruiz failed to personally examine the complainant and his witness.Personal examination by the judge of the complainant and his witnesses is necessary to enable him todetermine the existence or non-existence of a probable cause.

2. The search warrant was issued for more than one specific offense.The search warrant in question was issued for at least four distinct offenses under the Tax Code. As ruledin Stonehill Such is theseriousness of the irregularities committed in connection with the disputed searchwarrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of Court that a


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search warrant shall not issue but upon probable cause in connec tion with one specific offense. Notsatisfied with this qualification, the Court added thereto a paragraph, directing that no search warrant shallissue 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 the Search WarrantUnregistered and private books of accounts (ledgers, journals, columnars, receipts and disbursementsbooks, 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 offoreign remittances, covering the years 1966 to 1970.The description does not meet the requirement in Art III, Sec. 1, of the Constitution, and of Sec. 3, Rule 126 of theRevised Rules of Court, that the warrant should particularly describe the things to be seized.A search warrant may be said to particularly describe the things to be seized when the description therein is asspecific as the circumstances will ordinarily allow or when the description expresses a conclusion of fact not of lawby which the warrant officer may be guided in making the search and seizure or when the things described arelimited to those which bear direct relation to the offense for which the warrant is being issued.

May a judge deputize his Clerk of Court to take the deposition of the applicant for a Search Warrant subject toclarificatory questions after his hearing in other cases?No. As held in Bache vs. Ruiz, 37 SCRA 823, the examination of the complainant ant the witnesses he mayproduce must be done personally by the judge. Otherwise, the warrant shall be void. As such, the SC held inPENDON VS. CA, November 16, 1990 that when the questions asked to the applicant for a search warrant waspre-typed, the same is not valid since there could have been no searching questions.

SECRETARY OF JUSTICE VS MARCOS, 76 SCRA 301Illegal possession of firearm and violation of CB LawsSearch and SeizureOn March 31, 1971, Amansec went to Baguio and passed by a house at 47 Ledesma Street, Baguio; he wasattracted by the sight of several persons inside the house; he peeped from outside the house and when the curtainwas moved he saw a Buddha that was inside the house; he observed what was going on inside the house and heheard someone say that the golden Buddha was actually for sale and when he observed them closer he overheardthat it was being offered for sale for 100,000 pesos by Rogelio Roxas; he saw the Buddha and firearms and somebullets inside the house. By these facts, Colonel Calano requested for a warrant from J Marcos at about 12midnight on Apr 4, 1971. Due to the urgency he issued the warrant. And eventually the golden Buddha and some

firearms were seized from Roxass house. Santos assailed the warrant averring that the search warrant was notlimited to one offense covering both illegal possession of firearms and violation of Central Bank rules andregulations; that it did not particularly describe the property to be seized; that he did not carefully examine underoath the applicant and his witnesses; that articles not mentioned were taken; and that thereafter the return and theinventory although appearing to have been prepared on said date were not actually submitted to respondent Judgeuntil April 13, 1971 and the objects seized delivered only about a week later on April 19.ISSUE: Whether or not the search warrant issued by Judge Marcos is valid.HELD: The SC ruled in favor Judge Marcos and had basically affirmed the decision of appellate Judge Gatamaitan.Taking into consideration to nature of the articles so described, it is clear that no other more adequate and detaileddescription could be given, particularly because it is difficult to give a particular description of the contents thereof,The description so made substantially complies with the legal provisions because the officer of the law whoexecuted the warrant was thereby placed in a position enabling him to Identify the articles in question, which hedid, so that here, since certainly, no one would be mistaken in Identifying the Buddha, whose image is well

known, and even the firearms and ammunition because these were those without permit to possess, and all locatedat 47 Ledesma St., Baguio City, so far as description was concerned, the search warrant perhaps could not be saidto have suffered fatal defects.

CASTRO VS PABALAN, April 30, l976The search warrant is implemented in an adjoining Barrio of Bangar, La UnionJudge Pabalan ordered the issuance of a search warrant despite failure of the application of Lumang or the warrantitself to specify the offense, to examine the applicant as well as his witnesses on the part of the Judge, and todescribe with particularity the place to be searched and the things to be seized. Judge never refuted the assertionswhen required to answer. Application alleged that applicants wee informed and claimed that they verified the reportthat Maria Castro and Co Ling are in possession of narcotics and other contraband in Barrio Padasil, Bangar, La


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Union without specifying the particular place in the Barrio. No complete description of the goods and inquiry wasbrief. Upon actual search, it turned out that it was in Barrio Ma. Cristina and not in Padasil.ISSUE: Whether or not the search warrant is validly issued.HELD: Search warrant issued illegal for violation of the 1935 Constitution and the Rules of Court because the twobasic requirements are not complied with: (a) no warrant shall issue but upon probable cause, (b) the warrant shallparticularly describe the things to be seized, thus, a general warrant. However, things seized cannot be returnedand shall be destroyed, except the liquors, playing cards, distilled water and five bottles of Streptomycin.

ASIAN SURETY VS HERRERA, 52 SCRA 312Search warrant for estafa, falsification, tax evasion and insurance fraud is a general warrant despite two carloads ofevidence seized

May a Search Warrant be issued for the crimes of Search Warrant for estafa, falsification, tax evasion andinsurance fraud?No, such would be a general warrant and violates the rule that a warrant shall be issued for one (1) specificoffense. (Asian Surety vs. Herrera, 54 SCRA 312)

COLLECTOR OF CUSTOMS VS VILLALUZ, June 18, 1976

VIDUYA VS BERDIAGO, 73 SCRA 553Except in the case of the search of a dwelling house, persons exercising police authority under the customs lawmay effect search and seizure without a search warrant in the enforcement of customs laws.Respondent Berdiago is the owner of a Rolls Royce car, Model 1966, which arrived in the Port of Manila onJanuary 8, 1968. However, the petitioner, Jose Viduya, then Collector of Customs of Manila, obtained reliableintelligence that fraudulent documents were used by Berdiago in securing the release of the car from the Bureau ofCustoms, making it appear therein that the car was a 1961 model instead of a 1966 one, thus enabling respondentto pay a much lower customs duty.There was, accordingly, a formal demand for the payment of the sum to cover the deficiency, respondentmanifesting his willingness to do so but failing to live up to his promise. As the car was kept in a dwelling house atthe Yabut Compound, two officials of the Customs Police Service as duly authorized agents of petitioner, applied torespondent Judge for a warrant to search said dwelling house and to seize the Rolls Royce car found therein.Berdiago filed a motion to quash the search warrant issued by the court based on lack of probable cause to issue

the warrant. Collector Viduya opposed, alleging that Berdiago could not rely on the constitutional right againstunreasonable search and seizure because it was not shown that he owned the dwelling house which wassearched. Nonetheless, respondent Judge in the challenged order quashed such search warrant.ISSUE: Whether or not respondent Judge committed grave abuse of discretion in quashing the warrantHELD: The Court opined that except in the case of the search of a dwelling house, persons exercising policeauthority under the customs law may effect search and seizure without a search warrant in the enforcement ofcustoms laws. There is justification then for the insistence on the part of private respondent that probable cause beshown. So respondent Judge found in issuing the search warrant.Apparently, he was persuaded to quash it when he noted that the warrant for seizure and detention came later thanits issuance. In thus acting, respondent Judge apparently overlooked that long before the search warrant wasapplied for, to be specific on April 15, 1968, the misdeclaration and underpayment was already noted and thatthereafter on April 24, 1968, private respondent himself agreed to make good the further amount due but not in thesum demanded.

As the car was kept in a dwelling house, petitioner through two of his officers in the Customs Police Service appliedfor and was able to obtain the search warrant. Had there been no such move on the part of petitioner, the dutiesexpressly enjoined on him by law assess and collect all lawful revenues, to prevent and suppress smuggling andother frauds and to enforce tariff and customs law would not have been performed.While therefore, it is to be admitted that his warrant of seizure and detention came later than the search warrant,there were indubitable facts in existence at that time to call for its issuance. Certainly there was probable cause.There was evidently need for the issuance of a search warrant. It ought not to have been thereafter quashed.

DIZON VS CASTRO, April 11, 1985


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HELD: The right against unreasonable searches and seizures is a personal right which may be waived expressly orimpliedly. BUT A WAIVER BY IMPLICATION CANNOT BE PRESUMED. There must be clear and convincingevidence of an actual intention to relinquish the right. There must be proof of the following:

a. that the right exists;b. that the person involved had knowledge, either constructive or actual, of the existence of said right;c. that the said person had an actual intention to relinquish the right.

Finally, the waiver must be made voluntarily, knowingly and intelligently in order that the said is to be valid.The search was therefore held illegal and the members of the searching party held liable for damages in

accordance with the doctrine laid down in Lim vs. Ponce de Leon and MHP Garments vs. CA.

TWO KINDS OF PROBABLE CAUSE1. The executive determination of probable cause on whether a crime was allegedly committed and file a

criminal case in court; and2. Judicial determination of probable cause for the issuance of a warrant of arrest.

MICROSOFT CORPORATION VS FARAJALLAH, GR 205800

LEVISTE VS ALAMEDA, GR 182677There is no waiver of the illegality of the arrest if the accused refused to enter a voluntary plea during arraignmentand continued to question the validity of the preliminary investigation which resulted in the filing of the information incourt.

BORLONGAN VS PENA AND LIMSIACO, GR 143591Respondent Magdaleno Pea instituted a civil case for recovery of agents compensation and expenses, damages,and attorneys fees, against Urban Bank and the petitioners, before the Regional Trial Court (RTC) of NegrosOccidental, Bago City.- Respondent anchored his claim for compensation on the contract of agency, allegedlyentered into with the petitioners wherein the former undertook to perform such acts necessary to prevent anyintruder and squatter from unlawfully occupying Urban Banks property located along RoxasBoulevard, Pasay City.Petitioners filed a MD arguing that they never appointed the respondent as agent or counsel.Attached to the MD were the following documents:

1. A letter dated December 19, 1994 signed by Herman Ponce and Julie Abad on behalf of Isabela Sugar

Company, Inc. (ISCI), the original owner of the subject property;2. An unsigned letter dated December 7, 1994 addressed to Corazon Bejasa from Marilyn G. Ong;3. A letter dated December 9, 1994 addressed to Teodoro Borlongan and signed by Marilyn G. Ong; and4. A Memorandum dated November 20, 1994 from Enrique Montilla III.

The above stated documents were presented in an attempt to show that the respondent was appointed as agent byISCI and not by Urban Bank or by the petitioners.Respondent Pea filed his Complaint-Affidavit with the Office of the City Prosecutor, Bago City. He claimed thatsaid documents were falsified because the alleged signatories did not actually affix their signatures, and thesignatories were neither stockholders nor officers and employees of ISCI. Worse, petitioners introduced saiddocuments as evidence before the RTC knowing that they were falsified.City Prosecutors Report (Sept 23, 1998): In the report, the Prosecutor concluded that thepetitioners were probablyguilty of four (4) counts of the crime of Introducing Falsified Documents penalized by the second paragraph ofArticle 172 of the Revised Penal Code (RPC). The City Prosecutor concluded that the documents were falsified

because the alleged signatories untruthfully stated that ISCI was the principal of the respondent; that petitionersknew that the documents were falsified considering that the signatories were mere dummies; and that thedocuments formed part of the record of Civil Case No. 754 where they were used by petitioners as evidence insupport of their motion to dismiss, adopted in their answer and later, in their Pre-Trial Brief. Subsequently, thecorresponding Informations were filed with the Municipal Trial Court in Cities (MTCC), Bago City. The cases weredocketed as Criminal Cases Nos. 6683, 6684, 6685, and 6686. Thereafter, Judge Primitivo Blanca issued thewarrants for the arrest of the petitioners.Petitioners (Oct `1, 1998) filed an Omnibus MQ: They insist that they were denied due process because of the non-observance of a proper procedure on preliminary investigation prescribed in the Rules of Court; since no suchcounter-affidavit and supporting documents were submitted by the petitioners, the trial judge merely relied on thecomplaint-affidavit and attachments of the respondent in issuing the warrants of arrest, also in contravention of theRules. Moreover they claim that the respondents affidavit was not based on the latters personal knowledge and


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It must be emphasized that the affidavit of the complainant, or any of his witnesses, shall allege facts within their(affiants) personal knowledge. The allegation of the respondent that the signatures were falsified does not qualifyas personal knowledge. Nowhere in said affidavit did respondent state that he was present at the time of theexecution of the documents. Neither did he claim that he was familiar with the signatures of the signatories. Hesimply made a bare assertion.A finding of probable cause need not be based on clear and convincing evidence, or on evidence beyondreasonable doubt. It does not require that the evidence would justify conviction. Nonetheless, although thedetermination of probable cause requires less than evidence which would justify conviction, it should at least be

more than mere suspicion. While probable cause should be determined in a summary manner, there is a need toexamine the evidence with care to prevent material damage to a potential accuseds constitutional right to libertyand the guarantees of freedom and fair play, and to protect the State from the burden of unnecessary expenses inprosecuting alleged offenses and holding trials arising from false, fraudulent or groundless charges.

ROBERTS VS COURTS OF APPEALS, 254 SCRA 307Petitioners, who are corporate officers and members of the Board of Pepsi Cola Products Phils., Inc. wereprosecuted in connection with the Pepsi Number Fever promotion by handlers of the supposedly winning 349Pepsi crowns. Of the four cases filed against the petitioners, probable cause was found by the investigatingprosecutor only for the crime of estafa, but not for the other alleged offenses.On 12 April 1993, the information was filed with the trial court without anything accompanying it. A copy of theinvestigating prosecutors Joint Resolution was forwarded to and received by the trial court only on 22 April 1993.However, no affidavits of the witnesses, transcripts of stenographic notes of the proceedings during the preliminaryinvestigation, or other documents submitted in the course thereof were found in the records of the case as of 19May 1993.On 15 April 1993, petitioners Roberts, et al. filed a petition for review to the Department of Justice seeking thereversal of the finding of probable cause by the investigating prosecutor. They also moved for the suspension of theproceedings and the holding in abeyance of the issuance of warrants of arrest against them. Meanwhile, the publicprosecutor also moved to defer the arraignment of the accused-appellants pending the final disposition of theappeal to the Department of Justice.On 17 May 1993, respondent Judge Asuncion issued the challenged order (1) denying, on the basis of Crespovs.Mogul, the foregoing motions respectively filed by the petitioners and the public prosecutor, and directing theissuance of the warrants of arrest after June 1993 and setting the arraignment on 28 June 1993. In part,respondent judge stated in his order that since the case is already pending in this Court for trial, following whateveropinion the Secretary of Justice may have on the matter would undermine the independence and integrity his court.To justify his order, he quoted the ruling of the Supreme Court in Crespo, which stated:

In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the actionof the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain fromentertaining a petition for review or appeal from the action of the fiscal, when the complaint or information hasalready been filed in Court. The matter should be left entirely for the determination of the Court.Petitioners went to the Court of Appeals (CA), arguing that the respondent judge had not the slightest basis at allfor determining probable cause when he ordered the issuance of warrants of arrest. After finding that a copy of thepublic prosecutors Joint Resolution had in fact been forwarded to, and received by, the trial court on 22 April 1993,the CA denied petitioners application for writ of preliminary injunction. The CA ruled that the Joint Resolution wassufficient in itself to have been relied upon by respondent Judge in convincing himself that probable cause indeedexists for the purpose of issuing the corresponding warrants of arrest and that the mere silence of the records orthe absence of any express declaration in the questioned order as to the basis of such finding does not give rise toan adverse inference, for the respondent Judge enjoys in his favor the presumption of regularity in the performanceof his official duty. Roberts, et al. sought reconsideration, but meanwhile, the DOJ affirmed the finding of probable

cause by the investigating prosecutor. The CA therefore dismissed the petition for mootness.ISSUES:1. Did Judge Asuncion commit grave abuse of discretion in denying, on the basis of Crespo vs. Mogul, the

motions to suspend proceedings and hold in abeyance the issuance of warrants of arrest and to deferarraignment until after the petition for review filed with the DOJ shall have been resolved?

2. Did Judge Asuncion commit grave abuse of discretion in ordering the issuance of warrants of arrest withoutexamining the records of the preliminary investigation?

3. May the Supreme Court determine in this [sic] proceedings the existence of probable cause either for theissuance of warrants of arrest against the petitioners or for their prosecution for the crime of estafa?

HELD: The Court, in a 7-5-2 vote, GRANTED the petition. It SET ASIDE the decision and resolution of the CA, theresolutions of the DOJ 349 Committee, and the order of respondent judge.


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1. YES, Judge Asuncion committed grave abuse of discretion in denying, on the basis of Crespo vs. Mogul,the motions to suspend proceedings and hold in abeyance the issuance of warrants of arrest and to deferarraignment until after the petition for review filed with the DOJ shall have been resolved.There is nothing in Crespo vs. Mogul which bars the DOJ from taking cognizance of an appeal, by way of apetition for review, by an accused in a criminal case from an unfavorable ruling of the investigatingprosecutor. It merely advised the DOJ to, as far as practicable, refrain from entertaining a petition forreview or appeal from the action of the fiscal, when the complaint or information has already been filed inCourt.

Whether the DOJ would affirm or reverse the challenged Joint Resolution is still a matter of guesswork.Accordingly, it was premature for respondent Judge Asuncion to deny the motions to suspend proceedingsand to defer arraignment on the following grounds:This case is already pending in this Court for trial. To follow whatever opinion the Secretary of Justice mayhave on the matter would undermine the independence and integrity of this Court. This Court is stillcapable of administering justice.The real and ultimate test of the independence and integrity of this court is not the filing of theaforementioned motions [to suspend proceedings and issuance of warrants of arrest and to deferarraignment] at that stage but the filing of a motion to dismiss or to withdraw the information on the basis ofa resolution of the petition for review reversing the Joint Resolution of the investigating prosecutor.However, once a motion to dismiss or withdraw the information is filed the trial judge may grant or deny it,not out of subservience to the Secretary of Justice, but in faithful exercise of judicial prerogative.

2. YES, Judge Asuncion committed grave abuse of discretion in ordering the issuance of warrants of arrestwithout examining the records of the preliminary investigation.The teachings then of Soliven, Inting, Lim, Allado, and Webb reject the proposition that the investigatingprosecutors certification in an information or his resolution which is made the basis for the filing of theinformation, or both, would suffice in the judicial determination of probable cause for the issuance of awarrant of arrest. In Webb, this Court assumed that since the respondent Judges had before them not onlythe 26-page resolution of the investigating panel but also the affidavits of the prosecution witnesses andeven the counter-affidavits of the respondents, they (judges) made personal evaluation of the evidenceattached to the records of the case.In this case, nothing accompanied the information upon its filing on 12 April 1993 with the trial court. A copyof the Joint Resolution was forwarded to, and received by, the trial court only on 22 April 1993. And asrevealed by the certification of respondent judges clerk of court, no affidavits of the witnesses, transcriptsof stenographic notes of the proceedings during the preliminary investigation, or other documentssubmitted in the course thereof were found in the records of this case as of 19 May 1993. Clearly, when

respondent Judge Asuncion issued the assailed order of 17 May 1993 directing, among other things, theissuance of warrants of arrest, he had only the information, amended information, and Joint Resolution asbases thereof. He did not have the records or evidence supporting the prosecutor's finding of probablecause. And strangely enough, he made no specific finding of probable cause; he merely directed theissuance of warrants of arrest after June 21, 1993. It may, however, be argued that the directivepresupposes a finding of probable cause. But then compliance with a constitutional requirement for theprotection of individual liberty cannot be left to presupposition, conjecture, or even convincing logic.

3. NO, the Supreme Court MAY NOT determine in this [sic] proceedings the existence of probable causeeither for the issuance of warrants of arrest against the petitioners or for their prosecution for the crime ofestafa.Ordinarily, the determination of probable cause is not lodged with this Court. Its duty in an appropriate caseis confined to the issue of whether the executive or judicial determination, as the case may be, of probable

cause was done without or in excess of jurisdiction or with grave abuse of discretion amounting to want ofjurisdiction. This is consistent with the general rule that criminal prosecutions may not be restrained orstayed by injunction, preliminary or final.There are, however, exceptions to the foregoing rule. But the Court refused to reevaluate the evidence todetermine if indeed there is probable cause for the issuance of warrants of arrest in this case. For therespondent judge did not, in fact, find that probable cause exists, and if he did he did not have the basistherefor. Moreover, the records of the preliminary investigation in this case are not with the Court. Theywere forwarded by the Office of the City Prosecutor of Quezon City to the DOJ in compliance with thelatter's 1st Indorsement of 21 April 1993. The trial court and the DOJ must be required to perform their duty.

SKECHERS USA, INC. VS PACIFIC, GR 164321


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MILLER VS SECRETARY OF JUSTICE, GR 165412Probable cause; definition. Probable cause is defined as the existence of such facts and circumstances as wouldexcite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the personcharged was guilty of the crime for which he was prosecuted.Probable cause; determination. To determine the existence of probable cause, there is need to conduct preliminaryinvestigation. A preliminary investigation constitutes a realistic judicial appraisal of the merits of a case. Its purpose

is to determine whether (a) a crime has been committed; and (b) whether there is a probable cause to believe thatthe accused is guilty thereof. It is a means of discovering which person or persons may be reasonably charged witha crime. It is well-settled that the determination of probable cause for the purpose of filing an information in court isan executive function which pertains at the first instance to the public prosecutor and then to the Secretary ofJustice. The Secretary of Justice may reverse or modify the resolution of the prosecutor, after which he shall directthe prosecutor concerned either to file the corresponding information without conducting another preliminaryinvestigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties.

PEOPLE VS DEL ROSARIO, July 10, 1994

After the informant was given by the police the amount of P100.00, he went to buy marijuana from the accusedthen return to the police headquarters with said article. Thereafter, the policemen went to arrest the accusedwithout warrant. The arrest is not valid since it does not fall under Section 5 Rule 113.Likewise, after securing a search warrant authorizing the seizure of shabu and its paraphernalia and instead, anunlicensed firearm was seized instead, said gun is inadmissible in evidence.The policemen gave P100.00 to the informant to buy marijuana from the accused. After he returned with themarijuana, the policemen went to arrest the accused. The arrest is not valid since the same does not fall underSection 5 Rule 113. They have no personal knowledge.Accused was charged and convicted by the tr ial court of illegal possession of firearms and illegal possession andsale of drugs, particularly methamphetamine or shabu. After the issuance of the search warrant, which authorizedthe search and seizure of an undetermined quantity of methamphetamine and its paraphernalias, an entrapmentwas planned that led to the arrest of del Rosario and to the seizure of the shabu, its paraphernalias and of a .22caliber pistol with 3 live ammunition.ISSUE: Whether or Not the seizure of the firearms was proper.HELD: No, Section 2, Article III of the constitution specifically provides that a search warrant must particularlydescribe the things to be seized. In herein case, the only objects to be seized that the warrant determined was the

methamphetamine and the paraphernalias therein. The seizure of thefirearms was unconstitutional.Wherefore the decision is reversed and the accused is acquitted.

DELOS SANTOS VS MONTESA, 247 SCRA 85

LIM VS FELIXWarrant of arrest issued by the RTC Makati based on the Resolution and the Information filed by the Fiscal is notvalid since the record of the case with the affidavits of witnesses is still in Masbate.Certification by the fiscal of the existence of probable cause does not bind the judge. Preliminary inquiry determines probable cause for the issuance of a search warrant (prosecutor); Preliminary examination (judge) investigation for the determination of a probable cause for the issuance of a warrant of arrest; preliminary

investigation properascertains whether the offender should be held for trial or be released.Petitioners are suspects of the slaying of congressman Moises Espinosa, Sr. and three of his security escorts andthe wounding of another. They were initially charged, with three others, with the crime of multiple murder withfrustrated murder. After conducting a preliminary investigation, a warrant of arrest was issued on July 31, 1989. Bailwas fixed at P200,000.

On September 22, 1989, Fiscal Alfane, designated to review the case, issued a Resolution affirming the finding of aprima facie case against the petitioners but ruled that a case of Murder for each of the killing of the four victims anda physical injuries case for inflicting gunshot wound on the survivor be filled instead against the suspects.Thereafter, four separate informations to that effect were filed with the RTC of Masbate with no bail recommended.On November 21, 1989, a motion for change of venue, filed by the petitioners was granted by the SC. It orderedthat the case may be transferred from the RTC of Masbate to the RTC of Makati.


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AMARGA VS ABBAS, 98 PHIL. 739Natalio P. Amarga, the Provincial Fiscal of Sulu, filed in the Court of First Instance of Sulu an information for murder(criminal case 1131, People of the Philippines vs. Madpirol, Awadi, Rajah, Sali, Insa and Maharajah Bapayani). Atthe foot of the information, Amarga certified under oath that "he has conducted the necessary preliminaryinvestigation pursuant to the provisions of Republic Act 732." As the only supporting affidavit was that of Iman HadjiRohmund Jubair, to the effect that the latter "was told that the deceased was shot and killed by three personsnamed: Hajirul Appang, Rajah Appang and Awadi Bagali," and Amarga had failed or refused to present otherevidence sufficient to make out a prima facie case, Judge Macapanton Abbas (CFI of Sulu) issued an order,

dismissing the case without prejudice to reinstatement should the provincial fiscal support his information withrecord of his investigation which in the opinion of the court may support a prima facie case. Amarga instituted apetition for certiorari and mandamus before the Supreme Court.ISSUE: Whether the preliminary investigation conducted by Amarga dispenses with the judges duty to determineprobable cause exists before issuing the corresponding warrant of arrest.HELD: Section 1, paragraph 3, of Article III of the Constitution provides that "no warrant shall issue but uponprobable cause, to be determined by the judge after examination under oath or affirmation of the complainant andthe witnesses he may produce." The question whether "probable cause" exists or not must depend upon thejudgment and discretion of the judge or magistrate issuing the warrant. If he is satisfied that "probable cause" existsfrom the facts stated in the complaint, made upon the investigation by the prosecuting attorney, then his conclusionis sufficient upon which to issue the warrant for arrest. He may, however, if he is not satisfied, call such witnessesas he may deem necessary before issuing the warrant. The issuance of the warrant of arrest is prima facieevidence that, in his judgment at least, there existed "probable cause" for believing that the person against whomthe warrant is issued is guilty of the crime charged. The preliminary investigation conducted by Amarga underRepublic Act 732 which formed the basis for the filing in the Court of First Instance of Sulu of criminal case 1131does not dispense with the judge's duty to exercise his judicial power of determining, before issuing thecorresponding warrant of arrest, whether or not probable cause exists therefor. The Constitution vests such powerin the judge who, however, may rely on the facts stated in the information filed after preliminary investigation by theprosecuting attorney.

20THCENTURY FOX VS COURT OF APPEALS, 164 SCRA 655In a letter-complaint dated 26 August 1985, 20th Century Fox Film Corporation through counsel sought the NationalBureau of Investigation's (NBI) assistance in the conduct of searches and seizures in connection with the NBI'santi-film piracy campaign. Specifically, the letter-complaint alleged that certain videotape outlets all over MetroManila are engaged in the unauthorized sale and renting out of copyrighted films in videotape form which constitutea flagrant violation of Presidential Decree 49 (Decree on the Protection of Intellectual Property). Acting on the letter-

complaint, the NBI conducted surveillance and investigation of the outlets pinpointed by the film corporation andsubsequently filed 3 applications for search warrants against the video outlets owned by Eduardo M. Barreto, RaulSagullo, and Fortune Ledesma. The applications were consolidated and heard by the Regional Trial Court (RTC) ofMakati, Branch 132. On 4 September 1985, the lower court issued the desired search warrants, describing thearticles sought to be seized as"(c) Television sets, Video Cassettes Recorders, rewinders, tape head cleaners,accessories, equipment and other machines used or intended to be used in the unlawful reproduction, sale,rental/lease, distribution of the above-mentioned video tapes which she is keeping and concealing in the premisesabove-described.". Armed with the search warrants, the NBI accompanied by the film corporation's agents, raidedthe video outlets and seized the items described therein. An inventory of the items seized was made and left withBarreto, et. al. Acting on a motion to lift search warrants and release seized properties filed by Barreto, et. al., thelower court issued an order dated 8 October 1985, lifting the 3 search warrants issued earlier against them by thecourt, due to the failure of the NBI to deliver the articles to the Court, and thus ordered the return of the articles totheir respective owners. The lower court denied a motion for reconsideration filed by the film corporation in its order

dated 2 January 1986. The film corporation filed a petition for certiorari with the Court of Appeals to annul theorders of the lower court. The petition was dismissed. The 20th Century Fox Film Corporation filed the petition forreview with the Supreme Court.ISSUE: Whether the inclusion of certain articles of property which are usually connected to legitimate business, andnot involving piracy of intellectual property or infringement of copyright laws, renders the warrant to beunreasonable.HELD: Television sets, video cassette recorders, rewinders and tape cleaners are articles which can be found in avideo tape store engaged in the legitimate business of lending or renting out betamax tapes. In short, these articlesand appliances are generally connected with, or related to a legitimate business not necessarily involving piracy ofintellectual property or infringement of copyright laws. Hence, including these articles without specification and/orparticularity that they were really instruments in violating an Anti-Piracy law makes the search warrant too generalwhich could result in the confiscation of all items found in any video store. In fact, this actually happened in the


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present case. Although the applications and warrants themselves covered certain articles of property usually foundin a video store, the Court believes that the search party should have confined themselves to articles that areaccording to them, evidence constitutive of infringement of copyright laws or the piracy of intellectual property, butnot to other articles that are usually connected with, or related to, a legitimate business, not involving piracy ofintellectual property, or infringement of copyright laws. So that a television set, a rewinder, and a whiteboard listingBetamax tapes, video cassette cleaners video cassette recorders as reflected in the Returns of Search Warrants,are items of legitimate business engaged in the video tape industry, and which could not be the subject of seizure.The applicant and his agents therefore exceeded their authority in seizing perfectly legitimate personal property

usually found in a video cassette store or business establishment. The search and seizure is unreasonable.

QUINTERO VS NBI, 162 SCRA 467Searching parties searched different rooms simultaneously thereby resulting in no witnesses in the other roomssearched, the search is not valid.

PRESIDENTIAL ANTI-DOLLAR SALTING TASK FORCE VS COURT OF APPEALS

SOLIVEN & BELTRAN VS MAKASIAR, NOVEMBER 18, 1988 (Note: widely criticized)The word personally after the word determined does not necessarily mean that the judge should examine thecomplainant and his witnesses personally before issuing the search warrant or warrant of arrest but the exclusiveresponsibility on the part of said judge to satisfy himself of the existence of probable cause. As such, there is noneed to examine the complainant and his witnesses face to face. It is sufficient if the judge is convinced of theexistence of probable cause upon reading the affidavits or deposition of the complainant and his witnesses.There is no need for the judge to examine the complainant and the witnesses face to face in order to determineprobable cause. It is enough that he shall personally examine the affidavits of the complainant and the witnessesand if he is convinced that there is probable cause, he can validly issue the warrant of arrestIn these consolidated cases, three principal issues were raised: (1) whether or not petitioners were denied dueprocess when informations for libel were filed against them although the finding of the existence of a prima faciecase was still under review by the Secretary of Justice and, subsequently, by the President; and (2) whether or notthe constitutional rights of Beltran were violated when respondent RTC judge issued a warrant for his arrest withoutpersonally examining the complainant and the witnesses, if any, to determine probable cause. Subsequent eventshave rendered the first issue moot and academic. On March 30, 1988, the Secretary of Justice denied petitioners'motion for reconsideration and upheld the resolution of the Undersecretary of Justice sustaining the City Fiscal's

finding of a prima facie case against petitioners. A second motion for reconsideration filed by petitioner Beltran wasdenied by the Secretary of Justice on April 7, 1988. On appeal, the President, through theExecutive Secretary,affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for reconsideration was denied bythe Executive Secretary on May 16, 1988. With these developments, petitioners' contention that they have beendenied the administrative remedies available under the law has lost factual support.ISSUES: (1) Whether or Not petitioners were denied due process when informations for libel were filed againstthem although the finding of the existence of a prima facie case was still under review by the Secretary of Justiceand, subsequently, by the President.(2) Whether or Not the constitutional rights of Beltran were violated when respondent RTC judge issued a warrantfor his arrest without personally examining the complainant and the witnesses, if any, to determine probable causeHELD: With respect to petitioner Beltran, the allegation of denial of due process of law in the preliminaryinvestigation is negated by the fact that instead of submitting his counter- affidavits, he filed a "Motion to DeclareProceedings Closed," in effect waiving his right to refute the complaint by filing counter-affidavits. Due process of

law does not require that the respondent in a criminal case actually file hiscounter-affidavits before the preliminaryinvestigation is deemed completed. All that is required is that the respondent be given theopportunity to submitcounter-affidavits if he is so minded.The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on theissuance of warrants of arrest. The pertinent provision reads:

Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effectsagainst unreasonable searches and seizures of whatever nature and for any purpose shall beinviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to bedetermined personally by the judge after examination under oath or affirmation of the complainantand the witnesses he may produce, and particularly describing the place to be searched and thepersons or things to be seized.


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The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparentlyconvinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainantand his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not anaccurate interpretation.What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himselfof the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of awarrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following

established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documentssubmitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant ofarrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require thesubmission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence ofprobable cause.Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination andinvestigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with regard to theissuance of the warrants of arrest, a finding of grave abuse of discretion amounting to lack or excess of jurisdictioncannot be sustained. The petitions fail to establish that public respondents, through their separate acts, gravelyabused their discretion as to amount to lack of jurisdiction. Hence, the writs of certiorari and prohibition prayed forcannot issue.WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the part of thepublic respondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979. TheOrder to maintain the status quo contained in the Resolution of the Court en banc dated April 7, 1988 and reiteratedin the Resolution dated April 26, 1988 is LIFTED.

PENDON VS COURT OF APPEALS, November 16, 1990Pre-typed questions as a basis of probable cause not valid. No searching questions

PEOPLE VS INTING, July 25, 1990On 6 February 1988, Mrs. Editha Barba filed a letter-complaint against OIC-Mayor Dominador S. Regalado Jr. ofTanjay, Negros Oriental with the Commission on Elections (COMELEC), for allegedly transferring her, a permanentNursing Attendant, Grade I, in the office of the Municipal Mayor to a very remote barangay and without obtainingprior permission or clearance from COMELEC as required by law. Acting on the complaint, COMELEC directed

Atty. Gerardo Lituanas, Provincial Election Supervision of Dumaguete City: (1) to conduct the preliminaryinvestigation of the case; (2) to prepare and file the necessary information in court; (3) to handle the prosecution ifthe evidence submitted shows a prima facie case and (3) to issue a resolution of prosecution or dismissal as thecase may be. After a preliminary investigation of Barba's complaint, Atty. Lituanas found a prima facie case. Hence,on 26 September 1988, he filed with the Regional Trial Court (Branch 38. Dumaguete City) a criminal case forviolation of section 261, Paragraph (h), Omnibus Election Code against the OIC-Mayor. In an Order dated 30September 1988, the court issued a warrant of arrest against the OIC Mayor. It also fixed the bail at P5,000.00 asrecommended by the Provincial Election Supervisor. However, in an order dated 3 October 1988 and before theaccused could be arrested, the trial court set aside its 30 September 1988 order on the ground that Atty. Lituanas isnot authorized to determine probable cause pursuant to Section 2, Article III of the 1987 Constitution. The courtstated that it "will give due course to the information filed in this case if the same has the written approval of theProvincial Fiscal after which the prosecution of the case shall be under the supervision and control of the latter." Inanother order dated 22 November 1988, the court gave Atty. Lituanas 15 days from receipt to file another

information charging the same offense with the written approval of the Provincial Fiscal. Atty. Lituanas failed tocomply with the order. Hence, in an order dated 8 December 1988, the trial court quashed the information. Amotion for reconsideration was denied. Hence, the petition.ISSUE: Whether the approval of the Provincial Fiscal is necessary before the information filed by the ProvincialElection Supervisor may be given due course by the trial court.HELD: As to the constitutional mandate that "xx no search warrant or warrant of arrest shall issue except uponprobable cause to be determined personally by the judge xx," (Article III, Section 2, Constitution) the determinationof probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor for the ElectionSupervisor to ascertain. Only the Judge and the Judge alone makes this determination. On the other hand, thepreliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the determinationof probable cause. The Judge does not have to follow what the Prosecutor presents to him. By itself, theProsecutor's certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of


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stenographic notes (if any), and all other supporting documents behind the Prosecutor's certification which arematerial in assisting the Judge to make his determination. Thus, Judges and Prosecutors alike should distinguishthe preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminaryinvestigation proper which ascertains whether the offender should be held for trial or released. Even if the twoinquiries are conducted in the course of one and the same proceeding, there should be no confusion about theobjectives. The determination of probable cause for the warrant of arrest is made by the Judge. The preliminaryinvestigation proper - whether or not there is reasonable ground to believe that the accused is guilty of the offensecharged and, therefore, whether or not be should be subjected to the expense, rigors and embarrassment of trial

is the function of the Prosecutor.Preliminary investigation should be distinguished as to whether it is an investigation for the determination of asufficient ground for the filing of the information or it is an investigation for the determination of a probable cause forthe issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of theprosecution's job. The second kind of preliminary investigation which is more properly called preliminaryexamination is judicial in nature and is lodged with the judge. The 1987 Constitution (Article IX C, Section 2)mandates the COMELEC not only to investigate but also to prosecute cases of violation of election laws. Thismeans that the COMELEC is empowered to conduct preliminary investigations in cases involving election offensesfor the purpose of helping the Judge determine probable cause and for filing an information in court. This power isexclusive with COMELEC. It is only after a preliminary examination conducted by the COMELEC through itsofficials or its deputies that section 2, Article III of the 1987 Constitution comes in. This is so, because, when theapplication for a warrant of arrest is made and the information is filed with the court, the judge will then determinewhether or not a probable cause exists for the issuance of a warrant of arrest. The trial court misconstrued theconstitutional provision when it quashed the information filed by the Provincial Election Supervisor. The order to getthe approval of the Provincial Fiscal is not only superfluous but unwarranted.

UMIL VS RAMOS, July 9, 1990On 1 February 1988, the Regional Intelligence Operations Unit of the Capital Command (RIOU-CAPCOM) receivedconfidential information about a member of the NPA Sparrow Unit (liquidation squad) being treated for a gunshotwound at the St. Agnes Hospital in Roosevelt Avenue, Quezon City. Upon verification, it was found that thewounded person, who was listed in the hospital records as Ronnie Javelon, is actually Rolando Dural, a member ofthe NPA liquidation squad, responsible for the killing of 2 CAPCOM soldiers the day before, or on 31 January 1988,in Macanining Street, Bagong Barrio, Caloocan City. In view of this verification, Dural was transferred to theRegional Medical Services of the CAPCOM, for security reasons. While confined thereat, or on 4 February 1988,Dural was positively identified by eyewitnesses as the gunman who went on top of the hood of the CAPCOMmobile patrol car, and fired at the 2 CAPCOM soldiers seated inside the car identified as T/Sgt. Carlos Pabon and

CIC Renato Manligot. As a consequence of this positive identification, Dural was referred to the Caloocan CityFiscal who conducted an inquest and thereafter filed with the Regional Trial Court of Caloocan City an informationcharging Rolando Dural alias Ronnie Javelon with the crime of "Double Murder with Assault Upon Agents ofPersons in Authority." (Criminal Case C-30112; no bail recommended). On 15 February 1988, the information wasamended to include, as defendant, Bernardo Itucal, Jr. who, at the filing of the original information, was stillunidentified. Meanwhile, on 6 February 1988, a petition for habeas corpus was filed with the Supreme Court onbehalf of Roberto Umil, Rolando Dural, and Renato Villanueva. The Court issued the writ of habeas corpus on 9February 1988 and Fidel V. Ramos, Maj. Gen. Renato de Villa, Brig. Gen. Ramon Montano, and Brig. Gen.Alexander Aguirre filed a Return of the Writ on 12 February 1988. Thereafter, the parties were heard on 15February 1988. On 26 February 1988, however, Umil and Villanueva posted bail before the Regional Trial Court ofPasay City where charges for violation of the Anti-Subversion Act had been filed against them, and they wereaccordingly released.ISSUE: Whether Dural can be validly arrested without any warrant of arrest for the crime of rebellion.

HELD: Dural, it clearly appears that he was not arrested while in the act of shooting the 2 CAPCOM soldiers norwas he arrested just after the commission of the said offense for his arrest came a day after