Roan vs. Gonzales

5/19/2015 SUPREMECOURTREPORTSANNOTATEDVOLUME145

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VOL. 145, NOVEMBER 25, 1986 687Roan vs. Gonzales

No. L71410. November 25,1986.*

JOSEFINO S. ROAN, petitioner, vs. THE HONORABLEROMULO T. GONZALES, PRESIDING JUDGE,REGIONAL TRIAL COURT OF MARINDUQUE,BRANCH XXXVIII THE PROVINCIAL FISCAL OFMARINDUQUE THE PROVINCIAL COMMANDER,PCINP MARINDUQUE, respondents.

Criminal Procedure Arrests Words and Phrases Probablecause definedProbable cause was described by Justice Escolinin Burgos v. Chief of Staff as referring to such facts andcircumstances which would lead a reasonably discreet andprudent man to believe that an offense has been committed andthat the objects sought in connection with the offense are in theplace sought to be searched. As held in a long line of decisions,the probable cause must refer to only one specific offense.

Same SameJudge should not limit his inquiry oncomplainants affidavit only.By his own account, all he did wasquestion Captain Quillosa on the contents of his affidavit only toascertain, among others, if he knew and understood the same,and only because the application was not yet subseribed aadswora to. The suggestion is that he would not have asked anyquestions at all if the affidavit had already been completed whenit was submitted to him. In any case, he did not ask his ownsearching questions. He limited himself to the contents of theaffidavit. He did not take the applicants deposition in writing andattach them to the record, together with the affidavit presented tohim.

Same Same An application for search warrant if based onhearsay cannot, standing alone, justify issuance of that writInother words, the applicant was asking for the issuance of thesearch warrant on the basis of mere hearsay and not ofinformation personally known to him, as required by settled



jurisprudence. The rationale of the requirement, of course, is toprovide a ground for a prosecution for perjury in case theapplicants deciarations are found to be false. His application,standing alone, was insufficient to justify the issuance of thewarrant sought. It was therefore necessary for the witnessesthemselves, by their own personal information, to

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* EN BANC.

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688 SUPREME COURT EEPORTS ANNOTATED

Roan vs. Gonzales

establish the applicants claims.

Same Same Ulterior motive ofapplicants witnesses toapplication for search warrant should alert the judge to possiblemisrepresentations.A study of the depositions taken fromwitnesses Esmael Morada and Jesus Tohilida, who both claimedto be intelligence informers, shows that they were in the main amere restatement of their allegations in their affidavits, exceptthat they were made in the form of answers to the questions putto them by the respondent judge. Significantly, the meaningfulremark made by Tohilida that they were suspicious of thepetitioner because he was a follower of the opposition candidate inthe forthcoming election (a Lecarista) did not excite therespondent judges own suspicions. This should have put him onguard as to the motivations of the witnesses and alerted him topossible misrepresentations from them.

Same Same The judge should inquire into how the deponentswere able to know even the caliber of the guns and the numberofguns and bullets that are allegedly being kept in the place to besearched.0ne may well wonder why it did not occur to therespondent judge to ask how the witness could be so certain evenas to the caliber of the guns, or how far he was from the window,or whether it was on the first floor or a second floor, or why hispresence was not noticed at all, or if the acts related were reallydone openly, in the full view of the withesses, considering thatthese acts were against the law. These would have been judicious



questions but they were injudiciously omitted. Instead, thedeclarations of the witnesses were readily accepted and the searchwarrant sought was issued forthwith. The abovediscussed defectshave rendered the search warrant invalid. Nonetheless, theSolicitor General argues that whatever defect there was, waswaived when the petitioner voluntarily submitted to the searchand manifested his conformity in writing.

Same Same Waiver Estoppel Conformity of person inwriting for his house to be searcked by the military while serving asearch warrant cannot be considered voluntary No waiver todefects in the warrant can be implied therefrom.We do notagree. What we see here is pressure exerted by the militaryauthorities, who practically coerced the petitioner to sign thesupposed waiver as a guaranty against a possible challenge laterto the validity of the search they were conducting. Confrontedwith the armed presence of the military and the presumptiveauthority of a judicial writ, the petitioner had no choice but tosubmit. This was not, as we held in a previous case,

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VOL. 145, NOVEMBER 25, 1986 689

Roan vs. Gonzales

the manifestation merely of our traditional Filipino hospitalityand respect for authority. Given the repressive atmosphere of theMarcos regime, there was here, as we see it, an intimidation thatthe petitioner could not resist.

Same Same Criminal Law A prohibited article falling underthe concept of malum prohibitum, such as a pistol, may be seizedbutonly when the search is validProhibited articles may beseized but only as long as the search is valid. In this case, it wasnot because: 1) there was no valid search warrant and 2) absentsuch a warrant, the right thereto was not validly waived by thepetitioner. In short, the military officers who entered thepetitioners premises had no right to be there and therefore hadno right either to seize the pistol and bullets.

Same Same Same As a rule, an article, like a gun, coveredby offenses deftned as mala prohibita may not be summarilyseized A search warrant is still necessary Exceptions.It does notfollow that because an offense is malum prohibitum, the subjectthereof is necessarily illegalper se. Motive is immaterial in mala



prohibita, but the subjects of this kind of offense may not besummarily seized simply because they are prohibited. A searchwarrant is still necessary. If the rule were otherwise, then themilitary authorities couid have just entered the premises andlooked for the guns reportedly kept by the petitioner withoutbothering to first secure a search warrant. The fact that they didbother to do so indicates that they themselves recognized thenecessity of such a warrant for the seizure of the weapons thepetitioner was suspected of possessing.

Same Same Same Same.It is true that there are certaininstances when a search may be validly made without warrantand articles may be taken validly as a result of that search. Forexample, a warrantless search may be made incidental to a lawfularrest, as when the person being arrested is frished for weaponshe may otherwise be able to use against the arresting officer.Motor cars may be inspected at borders to prevent smuggling ofaliens and contraband and even in the interior upon a showing ofprobable cause. Vessels and aircraft are also traditionallyremoved from the operation of the rule because of their mobilityand their relative ease in fleeing the states jurisdiction. Theindividual may knowingly agree to be searched or waiveobjections to an illegal search. And it has also been held thatprohibited articles may be taken without warrant if they are opento eye and hand and the peace officer comes upon theminadvertently.

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690 SUPREME COURT REPORTS ANNOTATED

Roan vs. Gonzales

Same: Same Same Same.Clearly, though, the instant casedoes not come under any of the accepted exceptions. Therespondents cannot even claim that they stumbled upon the pistoland builets for the fact is that these things were deliberatelysought and were not in plain view when they were taken. Hence,the rule having been violated and no exception being applicable,the conclusion is that the petitioners pistol and bullets wereconfiscated illegally and therefore are protected by theexclusionary principle.

Same Same Evidence Seized pistol under a void warrantshall remain in custodia legis pendente lite although it cannot beused in evidence against the accused.The pistol and bullets



cannot, of course, be used as evidence against the petitioner in thecriminal action against him for illegal possession of firearms.Pending resolution of that case, however, the said articles mustremain in custodia legis.

Same Same Courts There is no need to ask for quaskal ofwarrant by the court that issued it when tke petition beforeSupreme Court raises serious and urgent constitutional issues.Finally, it is true that the petitioner should have, before comingto this Court, filed a motion for the quashal of the search warrantby the respondent judge in accordance with the normai procedure.But as we said and did in Burgos, this procedural flawnotwithstanding, we take cognizance of this petition in view of theseriousness and urgency of the constitutional issues raised.

PETITION to review the judgment of the Regional TrialCourt of Marinduque, Br. XXXVIII. Gonzales, J.

The facts are stated in the opinion of the Court.

CRUZ, J.

Once again we are asked to annul a search warrant on theground that it violates the Constitution. As we can do noless if we are to be true to the mandate of the fundamentallaw, we do annul.

One of the most precious rights of the citizen in a freesociety is the right to be left alone in the privacy of his ownhouse That right has ancient roots, dating back throughthe mists of history to the mighty English kings in theirfortresses of power. Even then, the lowly subject had hisown castle where

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he was monarch of all he surveyedL This was his humblecottage from which he could bar his sovereign lord and allthe forces of the Crown.

That right has endured through the ages albeit only in afew libertarian regimes. Their number, regrettably,continues to dwindle against the onslaughts ofauthoritarianism. We are among the fortunate few, ableagain to enjoy this right after the ordeal of the pastdespotism. We must cherish and protect it all the more now



because it is like a prodigal son retuming.That right is guaranteed in the following provisions of

Article IV of the 1973 Constitution:

SEC. 3. The right of the people to be secure in their persons,houses, papers and effects against unreasonable searches andseizures of whatever nature and for any purpose shall not beviolated, and no search warrant or warrant of arrest shall issueexcept upon probable cause to be determined by the judge, or suchother responsible officer as may be authorized by law, afterexamination under oath or af firmation of the ccmplainant andthe witnesses he may produce, and particularly describing theplace to be searcheci, and the persons or things to be seized.

SEC. 4. (1) The privacy of communication and correspondenceshall be inviolable except upon lawful order of the court, or whenpublic safety and order require otherwise.

(2) Any evidence obtained in violation of this or the precedingsection shall be inadmissible for any purpose in any proceeding.

Invoking, these provisions, the petitioner claims he was thevictim of an illegal search and seizure conducted by themilitary authorities. The articles seized from him aresought to be used as evidence in his prosecution for illegalpossession of firearms. He asks that their admission betemporarily restrained (which we have)

1 and thereafter

permanently enjoined.The challenged search warrant was issued by the

respondent judge on May 10, 1984.2 The petitioners house

was searched two days later but none of the articles listedin the warrant was

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1 Rollo, pp. 21,7779.2 Ibid, pp. 4, 23.

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692 SUPREME COURT REPORTS ANNOTATEDRoan vs. Gonzales

discovered.3 However, the officers conducting the search

found in the premises one Colt Magnum revolver andeighteen live bullets which they confiscated. They are nowthe bases of ihe charge against the petitioner.

4



To be valid, a search warrant must be supported byprobable cause to be determined by the judge or some otherauthorized officer after examining the complainant and thewitnesses he may produce. No less important, there mustbe a specific description of the place to be searched and thethings to be seized, to prevent arbitrary and indiscriminateuse of the warrant.

5

Probable cause was described by Justice Escolin inBurgos v. Chief of Staff

6 as referring to such facts and

circumstances which would lead a reasonably discreet andprudent man to believe that an offense has been committedand that the objects sought in connection with the offenseare in the place sought to be searched. As held in a longline of decisions, the probable cause must refer to only onespecific offense.

7

The inclusion of the requirement for the examinationunder oath or affirmation of the complainant and thewitnesses he may produce was a refinement proposed byDelegate Vicente J. Francisco in the 1934 ConstitutionalConvention. His purpose was the strengthening of theguaranty against unreasonable searches and seizures.Although the condition did not appear in the correspondingprovision of the federal Constitution of the United Stateswhich served as our model, it was then already embodied inthe Code of Criminal Procedjire. Never

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3 Id., p. 5.4 Annex"N'', Petition.5 Sec. 3, Art. IV, 1974 Constitution Sec. 3, Rule 126, Rules of Court

Stonehill v. Diokno, 20 SCRA 383 Lim v. Ponce de Leon, 66 SCRA 299Uy Kheytin v. Villareal, 42 Phil. 886 People v. Veloso, 48 Phil. 169 Peoplev. Rubio, 57 Phil. 384 Bache & Co. (PhiL), Inc. v. Ruiz, 37 SCRA 82.3.

6 133 SCRA 800.7 Stonehill v. Diokno, supra Asian Surety & Insurance Co., Inc. v.

Herrera, 54 SCRA 312 Castro v. Pabalan, 70 SCRA 477 Secretary ofJustice v. Marcos, 76 SCRA 301 Oca v. Maiquez, 14 SCRA 735.

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theless, Delegate Jose P. Laurel, Chairman of the



Committee on the Bill of Rights of that body, readilyaccepted the proposal and it was thereafter, following abrief debate, approved by the Convention.

8

Implementing this requirement, the Rules of Courtprovided in what was then Rule 126:

SEC. 4. Examination of the applicantThe municipal or cityjudge must, before issuing the warrant, personaily examine onoath or affirmation the complainant and any witnesses he mayproduce and take their depositions in writing, and attach them tothe record, in addition to any affidavits presented to him.

The petitioner claims that no depositions were taken by therespondent judge in accordance with the above rule, butthis is not entirely true. As a matter of fact, depositionswere taken of the complainants two witnesses in additionto the affidavit executed by them.

9 It is correct to say,

however, that the complainant himself was not subjected toa similar interrogation.

Commenting on this matter, the respondent judgedeclared:

The truth is that when PC Capt. Mauro P. Quillosa personallyfiled his application for a search warrant on May 10, 1984, heappeared before me in the company of his two (2) witnesses,Esmael Morada and Jesus Tohilida, both of whom likewisepresented to me their respective affidavits taken by Pat. Josue V.Lining, a police investigator assigned to the PCINP command atCamp Col. Maximo Abad. As the application was not yetsubscribed and sworn to, I proceeded to examine Captain Quillosaon the contents thereof to ascertain, among others, if he knew andunderstood the same. Af terwards, he subscribed and swore to thesame before me.

10

By his own account, all he did was question CaptainQuillosa on the contents of his affidavit only to ascertain,among others, if he knew and understood the same, andonly because the application was not yet subscribed andsworn to. The

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8 Journal of the Constitutional Convention, Vol. III, No. 22, pp. 10981105.

9 Rollo,pp. 102,116121.10 Ibid, pp. 10M02.



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suggestion is that he would not have asked any questionsat all if the affidavit had already been completed when itwas submitted to him. In any case, he did not ask his ownsearching questions. He limited himself to the contents ofthe affidavit. He did not take the applicants deposition inwriting and attach them to the record, together with theaffidavit presented tohim.

As this Court held in Mata v. Bayona: .11

Mere affidavits of the complainant and his witnesses are thusnot sufficient. The examining Judge has to take depositions inwriting of the complainant and the witnesses he may produce andattach them to the record. Such written deposition is necessary inorder that the Judge may be able to properly determine theexistence or nonexistence of the probable cause, to hold liable forperjury the person giving it if it will be found later that hisdeclarations are false.

We, therefore, hold that the search warrant is tainted withillegality by the failure of the Judge to conform with the essentialrequisites of taking the depositions in writing and attaching themto the record, rendering the search warrant invalid.

The respondent judge also declared that he saw no need tohave applicant Quillosas deposition taken considering thathe was applying for a search warrant on the basis of theinformation provided by the aforenamed witnesses whosedepositions as aforementioned had already been taken bythe undersigned."

12

In other words, the applicant was asking for theissuance of the search warrant on the basis of merehearsay and not of information personally known to him, asrequired by settled jurisprudence.

13 The rationale of the

requirement, of course, is to provide a ground for aprosecution for perjury in case the applicants declarationsare found to be false. His application, standing alone, wasinsufficient to justify the issuance of the warrant sought. Itwas therefore necessary for the witnesses themselves, bytheir own personal information, to establish

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11 128 SCRA 388, 391.12 Rollo, p. 102.13 Alvarez v. CFI, 64 Phil 33 Rodriguez v. Villamiel, 65 Phil 230

Garcia v. Locsin, 65 Phil. 689 Burgos v. Chief of Staff, supra.

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the applicants claims.14

Even assuming then that it would have sufficed to takethe depositions only of the witnesses and not of theapplicant himself, there is still the question of thesufficiency of their depositions.

It is axiomatic that the examination must be probingand exhaustive, not merely routinary or proforma, if theclaimed probable cause is to be established. The examiningmagistrate must not simply rehash the contents of theaffidavit but must make his own inquiry on the intent andjustification of the application.

15

A study of the depositions taken from witnesses EsmaelMorada and Jesus Tohilida, who both claimed to beintelligence informers, shows that they were in the maina mere restatement of their allegations in their affidavits,except that they were made in the form of answers to thequestions put to them by the respondent judge.Significantly, the meaningful remark made by TohiKdathat they were suspicious of the petitioner because he wasa fqllower of the opposition candidate in the forthcomingelection (a Lecarista")

16 did not excite the respondent

judges own suspicions. This should have put him on guardas to the motivations of the witnesses and alerted him topossible misrepresentations from them.

The respondent judge almost unquestioningly receivedthe witnesses statement that they saw eight men deliverarms to the petitioner in his house on May 2, 1984.

17 This

was supposedly done overtly, and Tohilida said he saweverything through an open window of the house while hewas near the gate.

18 He could even positively say that six of

the weapons were .45 caliber pistols and two were .38caliber revolvers.

19

One may weli wonder why it did not occur to therespondent



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14 People v. Sy Juco, 64 Phil. 667: Rodriguez v. Villamiel, supraAlvarez v. CFI, supra.

15 Mata v. Bayona, supra cf. Sec. 4, Rule 126, Rules of Court.16 Rollo, pp. 119120.17 Ibid, pp. 26,27,117,120.18 Id, p. 120.19 Id.

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judge to ask how the witness could be so certain even as tothe caliber of the guns, or how far he was from the window,or whether it was on the first floor or a second floor, or whyhis presence was not noticed at ail, or if the acts relatedwere really done openly, in the full view of the witnesses,considering that these acts were against the law. Thesewould have been judicious questions but they wereinjudiciously omitted. Instead, the declarations of thewitnesses were readily accepted and the search warrantsought was issued forthwith.

The abovediscussed defects have rendered the searchwarrant invalid. Nonetheless, the Solicitor General arguesthat whatever defect there was, was waived when thepetitioner voluntarily submitted to the search andmanifested his conformityinwriting.

20

We do not agree. What we see here is pressure exertedby the nulitary authorities, who practically coerced thepetitioner to sign the supposed waiver as a guarantyagainst a possible challenge later to the validity of thesearch they were conducting. Confronted with the armedpresence of the military and the presumptive authority of ajudicial writ, the petitioner had no choice but to submit.This was not, as we held in a previous case,

21 the

manifestation merely of our traditional Filipino hospitalityand respect for authority. Given the repressive atmosphereof the Marcos regime, there was here, as we see it, anintimidation that the petitioner could not resist.

The respondents also argue that the Colt Magnum pistoland the eighteen live bullets seized from the petitionerwere il~ legal per se and therefore could have been taken by



the military authorities even without a warrant. Possessionof the said articles, it is urged, was violative of P.D. 1866and considered malum prohibitum. Hence. the illegalarticles could be taken even without a warrant.

Prohibited articles may be seized but only as long as thesearch is valid. In this case, it was not because: 1) therewas no valid search warrant and 2) absent such a warrant,the right thereto was not validly waived by the petitioner.In short, the

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20 Ibid., pp. 145,151,152.21 Magoncia v. Palacio, 80 Phil. 770.

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military officers who enterecl the petitioners premises hadno right to be there and therefore had no right either toseize the pistol and bullets.

It does not follow that because an offense is malumprohibitum, the subject thereof is necessarily illegal per se.Motive is immaterial in mala prohibita, but the subjects ofthis kind of offense may not be summarily seized simplybecause they are prohibited. A search warrant is stillnecessary. If the rule were otherwise, then the militaryauthorities could have just entered the premises and lookedforthe guns reportedly kept by the petitioner withoutbothering to first secure a search warrant The fact thatthey did bother to do so indicates that they themselvesrecognized the necessity of such a warrant for the seizure ofthe weapons the petitioner was suspected of possessing.

It is true that there are certain instances when a searchmay be validly made without warrant and articles may betaken validly as a result of that search. For example, awarrantless search may be made incidental to a lawfularrest,

22 as when the person being arrested is frisked for

weapons he may otherwise be able to use against thearresting officer. Motor cars may be inspected at borders toprevent smuggling of aliens and contraband

23 and even in

the interior upon a showing of probable cause,24 Vessels and

aircraft are also traditionally removed from the operation



of the rule because of their mobility and their relative easein fleeing the states jurisdiction.

25 The individual may

knowingly agree to be searched or waive objections to anillegal search.

26 And it has also been held that prohibited

articles may be taken without warrant if they are open toeye and hand and the peace officer comes upon theminadvertently.

27

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22 Section 12, Rule 126, Rules of Court.23 Carroll v. U.S., 267 U.S. 132, cited in Papa v. Mago, 22 SCRA 857

People v. CFI of Rizal, 101 SCRA 86.24 AlmeldaSanchez v. U.S., 37 L. ed. 2ed. 596.25 Roldan v. Arca, 65 SCRA 336 Papa v. Mago, supra.26 People vs. Malasigui, 63 Phil. 221.27 Harris v. U.S., 390 U.S. 234.

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Clearly. though, the instant case does not come under anyof the accepted exceptions. The respondents cannot evenclaim that they stumbled upon the pistol and bullets for thefact is that these things were deliberately sought and werenot in plain view when they were taken. Hence, the rulehaving been violated and no exception being applicable, theconclusion is that the petitioners pistol and bullets wereconfiscated illegally and therefore are protected by theexclusionary principle.

Stonehill v. Diokno established this rule which was laterexpressly affirmed in the 1973 Constitution. Whileconceding that there may be occasions when the criminalmight be allowed to go free because the constable hasbhmdered, Chief Justice Concepcion observed that theexclusionary rule was nonetheless the only practicalmeans of enforcing the constitutional injunction againstabuse. The decision cited Judge Learned Handsjustification that only in case the prosecution which itselfcontrols the seizing officials, know that it cannot profit bytheir wrong, will the wrong be repressed.''

The pistol and bullets cannot, of course, be used asevidence against the petitioner in the criminal action



against him for illegal possession of firearms. Pendingresolution of that case, however, the said artieles rnustrernain in custodia legis.

Finally, it is true that the petitioner should have, beforecoming to this Court, ftted a motion for the quashal of thesearch warrant by the respondent judge in accordance withthe normal procedure. But as we said and did in Burgos,this procedural flaw notwithstanding, we take cognizanceof this petition in view of the seriousness and urgency ofthe constitutional issues raised."

28

WHEREFORE, Search Warrant No. 184 issued by therespondent judge on May 10,1984, is hereby declared nulland void and accordingly set aside. Our restraining order ofAugust 6,1985, is made permanent. No costs.

SO ORDERED.

Teehankee, C.J. Feria, Yap, Fernan, MelencioHerrera, Alampay, Gutierrez, Jr. and Paras, JJ., concur.

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28 Supra.

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Narvasa and Feliciana, JJ., in the result

Search Warrant No. 184 null and void and accordinglyset aside.

o0o

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