Criminal Procedure

Criminal Procedure pc1 Normal JOJO 5 47 2002-01-11T10:59:00Z 2002-01-16T23:21:00Z 5 3292 18768 sc 156 37 23048 9.2720 110

VIII. ISSUANCE OF SEARCH WARRANTS

Rules of Court

Rule 126

Sec. 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.

1. Rule on Forum Shopping

A search warrant was quashed because the applicant had been guilty of forum shopping as the applicant sought the search warrant from a Manila Regional Trial Court after was denied by the courts of Pampanga. 268

The Rules of Court, however, requires only initiatory pleading to be accompanied with a certificate of non-forum shopping omitting any mention of 'applications' as in Supreme Court Circular No. 04-94. Hence, the absence of such certification will not result in the dismissal of the application for search warrant. 269

Rules of Court

Rule 126

Sec. 3. Personal property to be seized .— A search warrant may be issued for the search and seizure of personal property:

(a) Subject of the offense;

(b) Stolen or embezzled and other proceeds, or fruits of the offense; or

(c) Used or intended to be used as the means of committing an offense.

Sec. 4. Requisites for issuing search warrant .— A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.

Sec. 5. Examination of complainant; record .— The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted.

B. Meaning of Probable Cause

Probable cause for a search is defined as such facts and circumstances which could 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. 270

3. Basis of Probable Cause; Personal Knowledge

This probable cause must be shown to be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay, 271 in order to convince the judge, not the individual making the affidavit and seeking the issuance of the warrant of the existence of a probable cause. 272

1. Meaning of knowledge; test is liability for perjury

The following test was laid in determining whether the allegations in an application for search warrant or in supporting deposition, are based on personal knowledge or not —

The true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is whether it has been drawn in a manner that perjury could be charged thereon and the affiant be held liable for damage caused. The oath required must refer to the truth of the facts within the personal knowledge of the applicant for search warrant, and/or his/her witnesses, not of the facts merely reported by a person whom one considers to be reliable. 273

2. Insufficiency of Affidavits

Mere affidavits of the complainant and his/her witnesses are not sufficient. The examining Judge has to take depositions in writing of the complainant and the witnesses he may produce and to attach them to the record. Such written deposition is necessary in order that the Judge may be able to properly determine the existence or non-existence of the probable cause, to hold liable for perjury the person giving it if it will be found later that his/her declarations are false. 274

Search warrants are not issued on loose, vague or doubtful basis of fact, nor on mere suspicion or belief. The facts recited in an affidavit supporting the application for a search warrant must be stated with sufficient definiteness, so that, if they are false, perjury may be assigned on the affiant. Hence, affidavits which go no further than to allege conclusions of law, or of fact, are insufficient. 275

Equally insufficient as a basis for the determination of probable cause is a statement contained in a joint affidavit 'that the evidence gathered and collated by our unit clearly shows that the premises above-mentioned and the articles and things above-prescribed were used and are continuously being used for subversive activities in conspiracy with and to promote the objective of, illegal organizations such as the Light-A-Fire Movement, Movement for Free Philippines, and April 6 Movement.'

3. Prudente v. The Hon. Executive Judge A.M. Dayrit

In his/her application for search warrant, P/Major Alladin Dimagmaliw stated that 'he has been informed' that Nemesio Prudente 'has in his control and possession' the firearms and explosives described therein, and that he 'has verified the report and found it to be a fact.' On the other hand, in his supporting deposition, P/Lt. Florencio C. Angeles declared that, as a result of their continuous surveillance for several days, they gathered informations from verified sources that the holders of the said firearms and explosives are not licensed to possess them. In other words, the applicant and his witness had no personal knowledge of the facts and circumstances which became the basis for issuing the questioned search warrant, but acquired knowledge thereof only through information from other sources or persons.

While it is true that in his application for search warrant, applicant P/Major Dimagmaliw stated that he verified the information he had earlier received that petitioner had in his possession and custody the firearms and explosives described in the application, and that he found it to be a fact, yet there is nothing in the record to show or indicate how and when said applicant verified the earlier information acquired by him as to justify his conclusion that he found such information to be a fact. He might have clarified this point if there had been searching questions and answers, but there were none. In fact, the records yield no questions and answers, whether searching or not, vis-�-vis the said applicant.

What the records show is the deposition of witness, P/Lt. Angeles, as the only support to P/Major Dimagmaliw's application, and the said deposition is based on hearsay. For it avers that they (presumably, the police authorities) had conducted continuous surveillance for several days of the suspected premises and, as a result thereof, they 'gathered information from verified sources' that the holders of the subject firearms and explosives are not licensed to possess them.

Evidently, the allegations contained in the application of P/Major Alladin Dimagmaliw and the declaration of P/Lt Florencio C. Angeles in his deposition were insufficient basis for the issuance of a valid search warrant. As held in the Prudente case:

The oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause. 276

4. Factors that may be considered in determination of probable cause: time of application in relation to alleged offense considered in determination of probable cause

The Supreme Court observed:

It has likewise been observed that the offenses alleged took place from 1961 to 1964, and the application for search warrant was made on October 27, 1965. The time of the application is so far remote in time as to make the probable cause of doubtful veracity and the warrant vitally defective. Thus, Mr. Joseph Varon, an eminent authority on Searches, Seizures and Immunities, has this to say on this point: subject, the following general rules are said to apply to affidavits for search warrants:

(1) x x x

(2) Such statement as to the time of the alleged offense must be clear and definite and must not be too remote from the time of the making of the affidavit and issuance of the search warrant.

(3) There is no rigid rule for determining whether the stated time of observation of the offense is too remote from the time when the affidavit is made or the search warrant issued, but, generally speaking, a lapse of time of less than three weeks will be held not to invalidate the search warrant, while a lapse of four weeks will be held to be so.

A good and practical rule of thumb to measure the nearness of time given in the affidavit as to the date of the alleged offense, and the time of making the affidavit is thus expressed: "The nearer the time at which the observation of the offense is alleged to have been made, the more reasonable the conclusion of establishment of probable cause". 277 (Italics ours.)

The Supreme Court observed that had the respondent judge been cautious in issuing the questioned search warrants he would have wondered, and therefor asked the affiant why the said incident was reported only on May 31, 1972 when he allegedly witnessed it on May 29, 1972. 278

5. The Need of Competent Proof of Particular Acts or Specific Omissions

The Supreme Court in the celebrated case of Stonehill v. Diokno pointed to the need of competent proof of particular acts or specific omissions in the ascertainment of probable cause:

Two points must be stressed in connection with this constitutional mandate, namely: (1) that no warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth in said provision, and (2) that the warrant shall particularly describe the things to be seized.

None of these requirements has been complied with in the contested warrants. Indeed, the same were issued upon applications stating that the natural and juridical persons therein named had committed a 'violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue Code and Revised Penal Code.' In other words, no specific offense had been alleged in said applications. The averments thereof with respect to the offense committed were abstract. As a consequence, it was impossible for the judges who issued the warrants to have found the existence of probable cause for the same presuppose the introduction of competent proof that the party against whom it is sought has performed particular acts or committed specific omissions, violating a given provision of our criminal laws. As a matter of fact, the applications involved in this case do not allege any specific acts performed by herein petitioners. It would be a legal heresy, of the highest order, to convict anybody of a 'violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code.' — as alleged in the aforementioned applications — without reference to any determinate provision of said laws or codes. 279

6. Probable Cause to be Determined only by Judge

A notable innovation in this guarantee is found in the Constitution in that it specifically provides that the probable cause upon which a warrant of arrest may be issued, must be determined by the judge after examination under oath, etc., of the complainant and the witnesses he may produce. This requirement — 'to be determined by the judge' — is not found in the Fourth Amendment of the U.S. Constitution, in the Philippine Bill or in the Jones Act, all of which do not specify who will determine the existence of a probable cause. Hence, under their provisions, any public officer may be authorized by the Legislature to make such determination, and thereafter issue the warrant of arrest. Under the express terms of the Constitution, it is, therefore, even doubtful whether the arrest of an individual may be ordered by any authority other than the judge if the purpose is merely to determine the existence of a probable cause, leading to an administrative investigation. The Constitution does not distinguish between warrants in administrative proceedings. And, if one suspected of having committed a crime is entitled to a determination of the probable cause against him, by a judge, why should one suspected of a violation of an administrative nature deserve less guarantee? Of course it is different if the order of arrest is issued to carry out a final finding of a violation, either by an executive or legislative officer or agency duly authorized for the purpose, as then the warrant is not that mentioned in the Constitution which is issuable only on probable cause. Such, for example, would be a warrant of arrest to carry out a final order of deportation, or to effect compliance of an order of contempt. 280

7. Manner of examination

In determining the existence of probable cause, it is required that: 1) the judge must examine the witnesses personally; 2) the examination must be under oath; and 3) the examination must be reduced to writing in the form of searching questions and answers. 281 These requirements are provided under Section 5, Rule 126 of the Rules of Court. It has been ruled that the existence of probable cause depends to a large degree upon the finding or opinion of the judge conducting the examination; 282 however, the opinion or finding of probable cause must, to a certain degree, be substantiated or supported by the record. 283

8. Examination is heard ex-parte and may be done in chambers but action must be expedited

An application for a search warrant is heard ex-parte. It is neither a trial nor a part of the trial. 284 The examination or investigation which must be under oath may not be in public. It may be even held in the secrecy of the chambers. It must be under oath and must be in writing. 285 Action on these applications must, be expedited for time is of the essence. Great reliance has to be accorded by the judge to the testimonies under oath of the complainant and the witnesses. 286 The examination or investigation must not, however, be merely routinary but one that is thorough and elicit the required information. 287

The searching questions propounded to the applicants of the search warrant and his/her witnesses must depend to a large extent upon the discretion of the Judge just as long as the answers establish a reasonable ground to believe the commission of a specific offense and that the applicant is one authorized by law, and said answers particularly describe with certainty the place to be searched and the persons or things to be seized. The examination or investigation which must be under oath may not be in public. It may be even be held in the secrecy of his/her chambers. Far more important is that the examination or investigation is not merely routinary but one that is thorough and elicit the required information. To repeat, it must be under oath and must be in writing. 288

9. The need for searching questions and answers by the judge

More emphatic and detailed is the implementing rule of the constitutional injunction, Section 4 of Rule 126 which provides that the judge before issuing the warrant personally examine on oath or affirmation the complainant and any witnesses he may produce and take their depositions in writing and attach them to the record in addition to any affidavits presented to him. 289

The examination must be probing and exhaustive, not merely routinary or pro forma, if the claimed probable cause is to be established. The examining magistrate must not simply rehash the contents of the affidavits but must take his/her own inquiry on the intent and justification of the application. 290

Asking of leading questions to the deponent in an application for search warrant, and conducting of examination in a general manner, would not satisfy the requirements for issuance of a valid search warrant. 291

Personal examination by the judge of the complainant and his/her witnesses is necessary to enable him to determine the existence or non-existence of a probable cause, pursuant to Art. III, Sec. 1, par. 3, of the Constitution, and Rule 126, Sec. 4 of the Rules of Court, both of which prohibit the issuance of warrants except 'upon probable cause.' The determination of whether or not a probable cause exists calls for the exercise of judgment after a judicial appraisal of facts and should not be allowed to be delegated in the absence of any rule to the contrary. 292

10. Requisite of particular description of things to be seized

The description 'is required to be specific only in so far as the circumstances will ordinarily allow' and 'where by the nature of the goods to be seized their descriptions must rather be general, as this would mean that no warrant would issue.' 293

Thus, the description 'fraudulent books, invoices and records' was found sufficient. 294

So also was the description 'books, documents, receipts, lists, chits and other papers used by him in connection with his/her activities as moneylender, charging a usurious rate of interest, in violation of the law." 295 Justifying the sufficiency of the later description, the Court said:

Taking into consideration the nature of the articles so described, it is clear that no other more adequate and detailed description could have been given, particularly because it is difficult to give a particular description of the contents thereof. The description so made substantially complies with the legal provisions because the officer of the law who executed the warrant was thereby placed in a position enabling him to identify the articles, which he did. 296

It was, however, held in a much later case that search warrants describing the effects to be seized as follows:

Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers, portfolios, credit journals, typewriters, and other documents and/or papers showing all business transactions including disbursements receipts, balance sheets and related profit and loss statements.

thus authorizing the seizure of books of accounts and records 'showing all the business transactions' of certain persons, regardless of whether the transactions were legal or illegal, contravene the explicit command of the Bill of Rights that the things to be seized should be particularly described and defeat its major objective of eliminating general warrants. 297

11. Tests to Determine Particularity

A search warrant may be said to particularly describe the things to be seized:

(1) When the description therein is as specific as the circumstances will ordinarily allow; 298 or

(2) When the description expresses a conclusion of fact - not of law by which the warrant officer may be guided in making the search and seizure; 299 or

(3) When the things described are limited to those which bear direct relation to the offense for which the warrant is being issued. 300

Thus, if the articles desired to be seized have any direct relation to an offense committed, the applicant must necessarily have some evidence, other than those articles, to prove the said offense; and the articles subject of search and seizure should come in handy merely to strengthen such evidence. In this event, the description contained in the disputed warrant should have mentioned, at least, the dates, amounts, persons, and other pertinent data regarding the receipts of payments, certificates of stocks and securities, contracts, promissory notes, deeds of sale, messages and communication, checks, bank deposits and withdrawals, records of foreign remittances, among others, enumerated in the warrant. 301

12. Description of place to be seized

It does not suffice, for a search warrant to be deemed valid, that it be based on probable cause, personally determined by the judge, it is essential, too, that it particularly describes the place to be searched, the manifest intention being that the search be confined strictly to the place also described. 302

Where the affidavit for the search warrant and the search warrant itself described the building to be searched as 'the building No. 124 Calle Arzobispo, City of Manila, Philippine Islands,' this is a sufficient designation of the premises to be searched. It is the prevailing rule that a description of a place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended. 303 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/her 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 case, but not otherwise. 304

13. Determination of Whether Search Warrant Describes Premises with Particularity

In the determination of whether a search warrant describes the premises to be searched with sufficient particularity, it has been held 'that the executing officer's prior knowledge as to the place intended in the warrant is relevant. This would seem to be especially true where the executing officer is the affiant on whose affidavit the warrant had issued, and when he knows that the judge who issued the warrant intended the building described in the affidavit. And it has also been said that the executing officer may look to the affidavit in the official court file to resolve an ambiguity in the warrant as to the place to be searched.' 305

The principle does not apply where there is no ambiguity on the face of the search warrant as to the description of the place to be searched. The place to be searched as set out in the warrant cannot be amplified or modified by the officer's own personal knowledge of the premises, or the evidence they adduced in support of their application for the warrant. x x x 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. 306

268 Washington Distillers v. Court of Appeals, G. R. No. 118151, August 22, 1996, 260 SCRA 821.

269 Savage v. Taypin, G. R. No. 134217, May 11, 2000.

270 Burgos, Sr. v. Chief of Staff, No. L-64261, December 26, 1984, 133 SCRA 815; Quintero v. National Bureau of Investigation, No. L-35149, June 23, 1988, 162 SCRA 483; Pendon v. Court of Appeals, G. R. No. 84873, November 16, 1990, 191 SCRA 429; Manalili v. Court of Appeals, G. R. No. 113447, October 9, 1997, 280 SCRA 400; People v. Montilla, G. R. No. 123872, January 30, 1998, 285 SCRA 703.

271 Prudente v. Dayrit , G. R. No. 82870, December 14, 1989, 180 SCRA 69.

272 Alvarez v. Court of First Instance of Tayabas Century Fox Film Corporation v. Court of Appeals, Nos. L-76649-51, August 19, 1988, 164 SCRA 655; Silva v. Regional Trial Court of Negros Oriental, G. R. No. 81756, October 21, 1991, 203 SCRA 140.

273 Alvarez v. Court of First Instance, supra, note 272.

274 Mata v. Bayona, No. L-50720, March 26, 1984, 128 SCRA 388

275 Quintero v. National Bureau of Investigation, supra, note 270; Burgos v. Chief of Staff, supra, note 270.

276 Prudente v. Dayrit, supra, note 271.

277 Asian Surety and Insurance Co. v. Herrera , No. L-25232, December 20, 1973, 54 SCRA 312.

278 Quintero v. National Bureau of Investigation, supra, note 270.

279 Stonehill v. Diokno , No. L-19550, June 19, 1967, 20 SCRA 383; La Chemise Lacoste, S. A. v. Fernandez, No. L-63796-7, May 21, 1984, 129 SCRA 373.

280 Qua Chee Gan v. Deportation Board, No. L-10280, September 30, 1963, 9 SCRA 27.

281 Marinas v. Siochi, Nos. L-25707 and 25753-4, May 14, 1981,104 SCRA 423; Ponsica v. Ignalaga, G. R. No. 72301, July 31, 1987, 152 SCRA 647.

282 Luna v. Plaza, G. R. No. L-27511, November 29, 1968, 26 SCRA 310.

283 Pendon v. Court of Appeals, G. R. No. 84873, November 16, 1990, 191 SCRA 429.

284 La Chemise Lacoste, S. A. v. Fernandez, supra, note, 279.

285 Mata v. Bayona, supra, note 274.

286 La Chemise Lacoste v. Fernandez, supra , note 278.

287 Mata v. Bayona, supra, note 274.

28 8 Mata v. Bayona, supra, note 274.

289 Mata v. Bayona, supra, note 274.

290 Roan v. Gonzales, L-71410, November 25, 1986, 145 SCRA 686.

291 Nolasco v. Pa�o, G. R. No. 69803, October 8, 1985, 139 SCRA 132; Quintero v. NBI, supra, note 270; Silva v. Regional Trial Court of Negros Oriental, supra, note 272.

292 Bache v. Ruiz, No. L-32409, February 27, 1971, 37 SCRA 823.

293 People v. Rubio, 57 Phil. 384 [1932].

294 People v. Rubio, supra, 293.

295 Alvarez v. Court of First Instance of Tayabas, supra, 272.

296 Alvarez v. CFI, supra, note 272.

297 Stonehill v. Diokno, supra, note 279.

298 People v. Rubio, supra, note 293.

299 Ibid., dissent of J. Abad Santos.

300 Rules of Court, Rule 126, Sec. 2.

301 Bache v. Ruiz, supra, note 292; Columbia Pictures v. Court of Appeals, G. R. No. 111267, September 20, 1996, 262 SCRA 219.

302 People v. Court of Appeals, G. R. No. 126379, June 26, 1998, 291 SCRA 400.

303 Steele vs. U.S. [1925], U.S. Supreme Court Advance Opinions, 1924-1925; 69 Law. ed., 757.

304 People v. Veloso, 48 Phil. 169 [1925].

305 Burgos v. Chief of Staff, Armed Forces of the Philippines , supra, note 272.

306 People v. Court of Appeals, supra, note 302.