Kho vs. Makalintal

5/19/2015 SUPREMECOURTREPORTSANNOTATEDVOLUME306

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70 SUPREME COURT REPORTS ANNOTATEDKho vs. Makalintal

G.R. Nos. 9490206. April 21, 1999.*

BENJAMIN V. KHO and ELIZABETH ALINDOGAN,petitioners, vs. HON. ROBERTO L. MAKALINTAL andNATIONAL BUREAU OF INVESTIGATION, respondents.

Constitutional Law Searches and Seizures Search WarrantsThe question of whether or not a probable cause exists is one whichmust be determined in light of the conditions obtaining in givensituations.In the case of Central Bank v. Morfe (20 SCRA 507),this Court ruled that the question of whether or not a probablecause exists is one which must be determined in light of theconditions obtaining in given situations. In Luna v. Plaza (26SCRA 310), it held that the existence of a probable cause dependsto a large extent upon the finding or opinion of the judge whoconducted the required examination of the applicants and thewitnesses.

Same Same Same In the absence of any showing that ajudge was recreant of his duties in connection with the personalexamination he so conducted on the affiants before him, there is nobasis for doubting the reliability and correctness of his findingsand impressions.After a careful study, the Court discerns nobasis for disturbing the findings and conclusions arrived at by therespondent Judge after examining the applicants and witnesses.Respondent judge had the singular opportunity to assess theirtestimonies and to find out their personal knowledge of facts andcircumstances enough to create a probable cause. The Judge wasthe one who personally examined the applicants and witnessesand who asked searching questions visavis the applications forsearch warrants. He was

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Kho vs. Makalintal

thus able to observe and determine whether subject applicantsand their witnesses gave accurate accounts of the surveillanceand investigation they conducted at the premises to be searched.In the absence of any showing that respondent judge was recreantof his duties in connection with the personal examination he soconducted on the affiants before him, there is no basis fordoubting the reliability and correctness of his findings andimpressions.

Same Same Same It is within the discretion of theexamining Judge to determine what questions to ask the witnessesso long as the questions asked are germane to the pivot of inquirythe existence or absence of a probable cause.Nothing improperis perceived in the manner the respondent Judge conducted theexamination of subject applicants for search warrants and theirwitnesses. He personally examined them under oath, and askedthem searching questions on the facts and circumstancespersonally known to them, in compliance with prescribedprocedure and legal requirements. It can be gleaned that thesworn statements and affidavits submitted by the witnesses wereduly attached to the pertinent records of the proceedings. It waswithin the discretion of the examining Judge to determine whatquestions to ask the witnesses so long as the questions asked aregermane to the pivot of inquirythe existence or absence of aprobable cause.

Same Same Same Words and Phrases The use of the phraseand the like does not necessarily make a search warrant ageneral warrant.The use of the phrase and the like is of nomoment. The same did not make the search warrants in questiongeneral warrants. In Oca v. Maiquez (14 SCRA 735), the Courtupheld the warrant although it described the things to be seizedas books of accounts and allied papers.

Same Same Same The law does not require that the thingsto be seized must be described in precise and minute detail as toleave no room for doubt on the part of the searching authorities,otherwise, it would be virtually impossible for the applicants to



obtain a warrant as they would not know exactly what kind ofthings they are looking for.Subject Search Warrant Nos. 9012and 9015 refer to: Unlicensed firearms of various calibers andammunitions for the said firearms. Search Warrant No. 9014states: Chopchop vehicles and other spare parts. The Courtbelieves, and so holds, that the said warrants comply withConstitutional and statutory re

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72 SUPREME COURT REPORTS ANNOTATED

Kho vs. Makalintal

quirements. The law does not require that the things to be seizedmust be described in precise and minute detail as to leave noroom for doubt on the part of the searching authorities.Otherwise, it would be virtually impossible for the applicants toobtain a warrant as they would not know exactly what kind ofthings they are looking for. Since the element of time is verycrucial in criminal cases, the effort and time spent in researchingon the details to be embodied in the warrant would render thepurpose of the search nugatory.

Same Same Same Pleadings and Practice CriminalProcedure Motions to Quash The question of whether there wasabuse in the enforcement of a search warrant is not within thescope of a Motion to Quash where what is assailed is the validity ofthe issuance of the warrant.The question of whether there wasabuse in the enforcement of the challenged search warrants is notwithin the scope of a Motion to Quash. In a Motion to Quash,what is assailed is the validity of the issuance of the warrant. Themanner of serving the warrant and of effecting the search are notan issue to be resolved here. As aptly opined and ruled by therespondent Judge, petitioners have remedies under pertinentpenal, civil and administrative laws for their problem at hand,which cannot be solved by their present motion to quash.

SPECIAL CIVIL ACTION in the Supreme Court.Certiorari.

The facts are stated in the opinion of the Court. Valmonte Law Offices for petitioners. The Solicitor General for respondents.



PURISIMA, J.:

This is a petition for certiorari assailing the Order, datedJuly 26, 1990, of Branch LXXVII of the Metropolitan TrialCourt of Paraaque, which denied petitioners Motion toQuash Search Warrants emanating from the same Court.Petitioners sought to restrain the respondent NationalBureau of Investigation (NBI) from using the objects seizedby virtue of such warrants in any case or cases filed or to befiled against them and to return immediately the saiditems, in

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cluding the firearms, ammunition and explosives, radiocommunication equipment, hand sets, transceivers, twounits of vehicles and motorcycle.

The antecedent facts are as follows:On May 15, 1990, NBI Agent Max B. Salvador applied

for the issuance of search warrants by the respondentJudge against Banjamin V. Kho, now petitioner, in hisresidence at No. 45 Bb. Ramona Tirona St., BF Homes,Phase I, Paraaque. On the same day, Eduardo T. Arugay,another NBI agent, applied with the same court for theissuance of search warrants against the said petitioner inhis house at No. 326 McDivitt St., Bgy. Moonwalk,Paraaque. The search warrants were applied for afterteams of NBI agents had conducted a personal surveillanceand investigation in the two houses referred to on the basisof confidential information they received that the saidplaces were being used as storage centers for unlicensedfirearms and chopchop vehicles. Respondent NBI soughtfor the issuance of search warrants in anticipation ofcriminal cases to be instituted against petitioner Kho.

On the same day, the respondent Judge conducted thenecessary examination of the applicants and theirwitnesses, after which he issued Search Warrant Nos. 9011, 9012, 9013, 9014, and 9015.

On the following day, May 16, 1990, armed with SearchWarrant Nos. 9011 and 9012, NBI agents searchedsubject premises at BF Homes, Paraaque, and theyrecovered various highpowered firearms and hundreds of



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rounds of ammunition. Meanwhile, another search wasconducted at the house at No. 326 McDivitt St. Bgy.Moonwalk, Paraaque, by another team of NBI agentsusing Search Warrant Nos. 9013, 9014 and 9015. Thesaid second search yielded several highpowered firearmswith explosives and more than a thousand rounds ofammunition. The simultaneous searches also resulted inthe confiscation of various radio and telecommunicationequipment, two units of motor vehicles (LiteAce vans) andone motorcycle. Upon verification with the Firearms andExplosives Unit in Camp Crame, the NBI agents found out

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that no license has ever been issued to any person or entityfor the confiscated firearms in question. Likewise, the radioagents found out that no license has ever been issued toany person or entity for the confiscated firearms inquestion. Likewise, the radio transceivers recovered andmotor vehicles seized turned out to be unlicensed andunregistered per records of the government agenciesconcerned.

On May 22, 1990, the raiding teams submitted separatereturns to the respondent Judge requesting that the itemsseized be in the continued custody of the NBI (Annexes O,P, and Q, Petition).

On May 28, 1990, the petitioners presented a Motion toQuash the said Search Warrants, contending that:

The subject search warrants were issued withoutprobable causeThe same search warrants are prohibited by theConstitution for being general warrantsThe said search warrants were issued in violation ofthe procedural requirements set forth by theConstitutionThe search warrants aforesaid were served inviolation of the Revised Rules of Court andThe objects seized were all legally possessed andissued.



On July 26, 1990, respondent Judge issued the assailedOrder denying the said Motion To Quash interposed bypetitioners.

Petitioners question the issuance of subject searchwarrants, theorizing upon the absence of any probablecause therefor. They contend that the surveillance andinvestigation conducted by NBI agents within the premisesinvolved, prior to the application for the search warrantsunder controversy, were not sufficient to vest in theapplicants personal knowledge of facts and circumstancesshowing or indicating the commission of a crime by them(petitioners).

Petitioners contention is untenable. Records show thatthe NBI agents who conducted the surveillance andinvestigation

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testified unequivocably that they saw guns being carried toand unloaded at the two houses searched, and motorvehicles and spare parts were stored therein. In fact,applicant Max B. Salvador declared that he personallyattended the surveillance together with his witnesses(TSN, May 15, 1990, pp. 23), and the said witnessespersonally saw the weapons being unloaded from motorvehicles and carried to the premises referred to. NBI AgentAli Vargas testified that he actually saw the firearms beingunloaded from a Toyota LiteAce van and brought to theaforementioned house in BF Homes, Paraaque because hewas there inside the compound posing as an applianceagent (TSN, May 15, 1990, pp. 45). It is thereforedecisively clear that the application for the questionedsearch warrants was based on the personal knowledge ofthe applicants and their witnesses.

In the case of Central Bank v. Morfe (20 SCRA 507), thisCourt ruled that the question of whether or not a probablecause exists is one which must be determined in light of theconditions obtaining in given situations. In Luna v. Plaza(26 SCRA 310), it held that the existence of a probablecause depends to a large extent upon the finding or opinionof the judge who conducted the required examination of theapplicants and the witnesses.



After a careful study, the Court discerns no basis fordisturbing the findings and conclusions arrived at by therespondent Judge after examining the applicants andwitnesses. Respondent judge had the singular opportunityto assess their testimonies and to find out their personalknowledge of facts and circumstances enough to create aprobable cause. The Judge was the one who personallyexamined the applicants and witnesses and who askedsearching questions visavis the applications for searchwarrants. He was thus able to observe and determinewhether subject applicants and their witnesses gaveaccurate accounts of the surveillance and investigationthey conducted at the premises to be searched. In theabsence of any showing that respondent judge was recreantof his duties in connection with the personal examinationhe so conducted on the affiants before him, there is no

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basis for doubting the reliability and correctness of hisfindings and impressions.

Petitioners brand as fatally defective and deficient theprocedure followed in the issuance of subject searchwarrants, reasoning out that the same did not comply withconstitutional and statutory requirements. They faultrespondent Judge for allegedly failing to ask specificquestions they deem particularly important during theexamination of the applicants and their witnesses. Tobuttress their submission, petitioners invite attention tothe following question, to wit:

How did you know that there are unlicensed firearmsbeing kept by Benjamin Kho at No. 45 Bb. Ramona TironaSt., Phase I, BF Homes, Paraaque, Metro Manila? (TSN,Ali Vargas, May 15, 1990, p. 4)

Petitioners argue that by propounding the aforequotedquestion, the respondent Judge assumed that the firearmsat the premises to be searched were unlicensed, instead ofasking for a detailed account of how the NBI agents cameto know that the firearms being kept thereat wereunlicensed.

This stance of petitioners is similarly devoid of anysustainable basis. Nothing improper is perceived in the



manner the respondent Judge conducted the examinationof subject applicants for search warrants and theirwitnesses. He personally examined them under oath, andasked them searching questions on the facts andcircumstances personally known to them, in compliancewith prescribed procedure and legal requirements. It canbe gleaned that the sworn statements and affidavitssubmitted by the witnesses were duly attached to thepertinent records of the proceedings. It was within thediscretion of the examining Judge to determine whatquestions to ask the witnesses so long as the questionsasked are germane to the pivot of inquirythe existence orabsence of a probable cause.

Petitioners claim that subject search warrants aregeneral warrants proscribed by the Constitution. Accordingto them, the things to be seized were not described anddetailed out,

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i.e., the firearms listed were not classified as to size ormake, etc.

Records on hand indicate that the search warrantsunder scrutiny specifically describe the items to be seizedthus:

Search Warrant No. 9011

Unlicensed radio communications equipments such astransmitters, transceivers, handsets, scanners, monitoring deviceand the like.

Search Warrant No. 9013

Unlicensed radio communications equipments such astransmitters, transceivers, handsets, radio communicationsequipments, scanners, monitoring devices and others.

The use of the phrase and the like is of no moment. Thesame did not make the search warrants in question generalwarrants. In Oca v. Maiquez (14 SCRA 735), the Courtupheld the warrant although it described the things to beseized as books of accounts and allied papers.



Subject Search Warrant Nos. 9012 and 9015 refer to:Unlicensed firearms of various calibers and ammunitions for thesaid firearms.

Search Warrant No. 9014 states:

Chopchop vehicles and other spare parts.

The Court believes, and so holds, that the said warrantscomply with Constitutional and statutory requirements.The law does not require that the things to be seized mustbe described in precise and minute detail as to leave noroom for doubt on the part of the searching authorities.Otherwise, it would be virtually impossible for theapplicants to obtain a warrant as they would not knowexactly what kind of things they are looking for. Since theelement of time is very crucial in criminal cases, the effortand time spent in researching on

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the details to be embodied in the warrant would render thepurpose of the search nugatory.

In the case under consideration, the NBI agents couldnot have been in a position to know before hand the exactcaliber or make of the firearms to be seized. Although thesurveillance they conducted did disclose the presence ofunlicensed firearms within the premises to be searched,they could not have known the particular type of weaponsinvolved before seeing such weapons at close range, whichwas of course impossible at the time of the filing of theapplications for subject search warrants.

Verily, the failure to specify detailed descriptions in thewarrants did not render the same general. Retired JusticeRicardo Franciscos book on Criminal Procedure has thisuseful insight:

A description of the property to be seized need not be technicallyaccurate nor necessarily precise and its nature will necessarilyvary according to whether the identity of the property, or itscharacter, is the matter of concern. Further, the description isrequired to be specific only so far as the circumstances willordinarily allow. x x x



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In People v. Rubio (57 Phil. 384), the Court held that, . . .But where, by the nature of the goods to be seized, theirdescription must be rather general, it is not required that atechnical description be given, for this would mean that nowarrant could issue.

It is indeed understandable that the agents ofrespondent Bureau have no way of knowing whether theguns they intend to seize are a Smith and Wesson or aBeretta. The surveillance conducted could not give the NBIagents a close view of the weapons being transported orbrought to the premises to be searched. Thus, they couldnot be expected to know the detailed particulars of theobjects to be seized. Consequently, the list submitted in theapplications for subject search warrants should beadjudged in substantial compliance with the requirementsof law.

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Petitioners contend that the searching agents grosslyviolated the procedure in enforcing the search warrants inquestion. The petition avers supposedly reprehensible actsperpetrated by the NBI agents. Among the irregularitiesalluded to, are:

The raiding team failed to perform the following beforebreaking into the premises:

Properly identify themselves and showing necessarycredentials including presentation of the SearchWarrantsFurnishing of Search Warrants and allowing theoccupants of the place to scrutinize the sameGiving ample time to the occupants to voluntarily allowthe raiders entry into the place and to search thepremises.

The team entered the premises by climbing the fence andby forcing open the main door of the house.Once inside the house, the raiders herded the maids andthe sixteen yearold son of defendant Kho into the diningroom where they were confined for the duration of the



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raid. In the case of the son, he was gagged with a piece ofcloth, his hands were tied behind his back and he wasmade to lie face down.Defendant Khos hands were immediately tied behind hisback (initially with a rag and later with the electric cord ofa rechargeable lamp) and was restrained in a kneelingposition with guns pointed at him throughout the durationof the search. It was only after the search was completedand the seized items stuffed in carton boxes (and a Tbag)that his hands were untied so he can sign the searchwarrants which he was forced to do.All throughout the search, defendant Kho and hiscompanions were kept in the dining room andcontinuously intimidated of being shot while the raiderssearch all the rooms all by themselves and withoutanybody seeing whatever they were doing.

The question of whether there was abuse in theenforcement of the challenged search warrants is notwithin the scope of a Motion to Quash. In a Motion toQuash, what is assailed is the validity of the issuance ofthe warrant. The manner of serving the warrant and ofeffecting the search are

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not an issue to be resolved here. As aptly opined and ruledby the respondent Judge, petitioners have remedies underpertinent penal, civil and administrative laws for theirproblem at hand, which cannot be solved by their presentmotion to quash.

According to petitioner Kho, the premises searched andobjects seized during the search sued upon belong to theEconomic Intelligence and Investigation Bureau (EIIB) ofwhich he is an agent and therefore, the NBI agentsinvolved had no authority to search the aforesaid premisesand to confiscate the objects seized.

Whether the places searched and objects seized aregovernment properties are questions of fact outside thescope of the petition under consideration. The Court doesnot see its way clear to rule on such issues lest it preempts



the disposition of the cases filed by the respondent NBIagainst the herein petitioners.

Considering that cases for Illegal Possession of Firearmsand Explosives and Violation of Section 3 in relation toSection 14 of Republic Act No. 6539, otherwise known asthe AntiCarnapping Act of 1972, have been institutedagainst the petitioners, the petition for mandamus withpreliminary and mandatory injunction to return all objectsseized and to restrain respondent NBI from using the saidobjects as evidence, has become moot and academic.

WHEREFORE, for want of merit and on the ground thatit has become moot and academic, the petition at bar ishereby DISMISSED. No pronouncement as to costs.

SO ORDERED.

Davide, Jr. (C.J.), Romero, Bellosillo, Melo, Puno,Vitug, Kapunan, Mendoza, Quisumbing, Pardo, Buena,GonzagaReyes and YnaresSantiago, JJ., concur.

Panganiban, J., In the result.

Petition dismissed.

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Notes.When insanity is interposed as a defense or aground of a motion to quash, the burden rests upon theaccused to establish that fact, for the law presumes everyman to be sane. (Zosa vs. Court of Appeals, 231 SCRA 22[1994])

The test for the correctness of the ground that the factsalleged in the information do not constitute an offense isthe sufficiency of the averments in the information, that is,whether the facts alleged, if hypothetically admitted,constitute the elements of the offense. (Mustang Lumber,Inc. vs. Court of Appeals, 257 SCRA 430 [1996])

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Kho vs. Makalintal

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