NARCISO ALVAREZ, PETITIONER, VS. THE COURT OF FIRST INSTANCE OF TAYABAS AND THE ANTI-USURY BOARD, RESPONDENTS.

The petitioner asks that the warrant of
June 3, 1936, issued by the Court of First Instance of Tayabas,
ordering the search of his house and the seizure, at any time of the
day or night, of certain accounting books, documents and papers
belonging to him in his residence situated in Infanta, Province of
Tayabas, as well as the order of a later date, authorizing the agents
of the Anti-Usury Board to retain the articles seized, be declared
illegal and set aside, and prays that all the articles in question be
returned to him.

On the date above-mentioned, the chief of the secret service of
the Anti-Usury Board, of the Department of Justice, presented to Judge
Eduardo Gutierrez David then presiding over the Court of First Instance
of Tayabas, an affidavit alleging that according to reliable
information, the petitioner kept ,in his house in Infanta, Tayabas,
books, documents, receipts, lists, chits and other papers used by him
in connection with his activities as a money-lender, charging usurious
rates of interest in violation of the law. In his oath at the end of
the affidavit, the chief of the secret service stated that his answers
to the questions were correct to the best of his knowledge and belief.
He did not swear to the truth of his statements upon his own knowledge
of the facts but upon the information received by him from a reliable
person. Upon the affidavit in question the judge, on said date, issued
the warrant which is the subject matter of the petition, ordering the
search of the petitioner’s house at any time of the day or night, the
seizure of the books and documents above-mentioned and the immediate
delivery thereof to him to be disposed of in accordance with the law.
With said warrant, several agents of the Anti-Usury Board entered the
petitioner’s store and residence at seven o’clock on the night of June
4,1936, and seized and took possession of the following articles:
internal revenue licenses for the years 1933 to 1936, one ledger, two
journals, two cashbooks, nine order books, four notebooks, four check
stubs, two memorandums, three bankbooks, two contracts, four stubs,
forty-eight stubs of purchases of copra, two inventories, two bundles
of bills of lading, one bundle of credit receipts, one bundle of stubs
of purchases of copra, two packages of correspondence, one receipt book
belonging to Luis Fernandez, fourteen bundles of invoices and other
papers, many documents and loan contracts with security and promissory
notes, 504 chits, promissory notes and stubs of used checks of the
Hongkong & Shanghai Banking Corporation. The search for and seizure
of said articles were made with the opposition of the petitioner who
stated his protest below the inventories on the ground that the agents
seized even the originals of the documents. As the articles had not
been brought immediately to the judge who issued the search warrant,
the petitioner, through his attorney, filed a motion on June 8,1936,
praying that the agent Emilio L. Siongco, or any other agent, be
ordered immediately to deposit all the seized articles in the office of
the clerk of court and that said agent be declared guilty of contempt
for having disobeyed the order of the court. On said date the court
issued an order directing Emilio L. Siongco to deposit all the articles
seized within twenty-four hours from the receipt of notice thereof and
giving him a period of five (5) days within which to show cause why he
should not be punished for contempt of court. On June 10th, Attorney
Arsenio Rodriguez, representing the Anti-Usury Board, filed a motion
praying that the order of the 8th of said month be set aside and that
the Anti-Usury Board be authorized to retain the articles seized for a
period of thirty (30) days for the necessary investigation. The
attorney for the petitioner, on June 20th, filed another motion
alleging that, notwithstanding the order of the 8th of said month, the
officials of the Anti-Usury Board had failed to deposit the articles
seized by them and praying that a search warrant be issued, that the
sheriff be ordered to take all the articles into his custody and
deposit them in the clerk’s office, and that the officials of the
Anti-Usury Board be punished for contempt of court. Said attorney, on
June 24th, filed an ex parte petition alleging that while
agent Emilio L. Siongco had deposited some documents and papers in the
office of the clerk of court, he had so far failed to file an inventory
duly verified by oath, of all the documents seized by him, to return
the search warrant together with the affidavit presented in support
thereof, or to present the report of the proceedings taken by him; and
prayed that said agent be directed to file the documents in question
immediately. On the 25th of said month the court issued an order
requiring agent Emilio L, Siongco forthwith to file the search warrant
and the affidavit in the court, together with the proceedings taken by
him, and to present an inventory duly verified by oath of all the
articles seized. On July 2d of said year, the attorney for the
petitioner filed another petition alleging that the search warrant
issued was illegal and that it had not yet been returned to date
together with the proceedings taken in connection therewith, and
praying that said warrant be cancelled, that an order be issued
directing the return of all the articles seized to the petitioner, that
the agent who seized them be declared guilty of contempt of court, and
that charges be filed against him for abuse of authority. On September
10, 1936, the court issued an order holding: that the search warrant
was obtained and issued in accordance with the law, that it had been
duly complied with and, consequently, should not be cancelled, and that
agent Emilio L. Siongco did not commit any contempt of court and must,
therefore, be exonerated, and ordering the chief of the Anti-Usury
Board in Manila to show cause, if any, within the unextendible period
of two (2) days from the date of notice of said order, why all the
articles seized appearing in the inventory, Exhibit 1, should not be
returned to the petitioner. The assistant chief of the Anti-Usury Board
of the Department of Justice filed a motion praying, for the reasons
stated therein, that the articles seized be ordered retained for the
purpose of conducting an investigation of the violation of the
Anti-Usury Law committed by the petitioner. In view of the opposition
of the attorney for the petitioner, the court, on September 25th,
issued an order requiring the Anti-Usury Board to specify the time
needed by it to examine the documents and papers seized and which of
them should be retained, granting it a period of five (5) days for said
purpose. On the 30th of said month the assistant chief of the
Anti-Usury Board filed a motion praying that he be granted ten (10)
days to comply with the order of September 25th and that the clerk of
court be ordered to return to him all the documents and papers together
with the inventory thereof. The court, in an order of October 2d of
said year, granted him the additional period of ten (10) days and
ordered the clerk of court to send him a copy of the inventory. On
October 10th, said official again filed another motion alleging that he
needed sixty (60) days to examine the documents and papers seized,
which are designated on pages 1 to 4 of the inventory by Nos. 5, 10,
16, 23, 25, 26, 27, 30, 81, 34, 36, 37, 38, 39, 40, 41, 42, 43 and 45,
and praying that he be granted said period of sixty (60) days. In an
order of October 16th, the court granted him the period of sixty (60)
days to investigate said nineteen (19) documents. The petitioner
alleges, and it is not denied by the respondents, that these nineteen
(19) documents continue in the possession of the court, the rest having
been returned to said petitioner.

I. A search warrant is an order in writing, issued in the name of
the People of the Philippine Islands, signed by a judge or a justice of
the peace, and directed to a peace officer, commanding him to search
for personal property and bring it before the court (section 95,
General Orders, No. 58, as amended by section 6 of Act No. 2886). Of
all the rights of a citizen, few are of greater importance or more
essential to his peace and happiness than the right of personal
security, and that involves the exemption of his private affairs,
books, and papers from the inspection and scrutiny of others (In re Pacific Railway Commission, 32 Fed., 241; Interstate Commerce Commn. vs. Brimson, 38 Law. ed., 1047; Boyd vs. U. S., 29 Law. ed., 746; Carroll vs.
U. S., 69 Law. ed., 543, 549). While the power to search and seize is
necessary to the public welfare, still it must be exercised and the law
enforced without transgressing the constitutional rights of citizens,
for the enforcement of no statute is of sufficient importance to
justify indifference to the basic principles of government (People vs. Elias, 147 N. E., 472).

II. As the protection of the citizen and the maintenance of his
constitutional rights is one of the highest duties and privileges of
the court, these constitutional guaranties should be given a liberal
construction or a strict construction in favor of the individual, to
prevent stealthy encroachment upon, or gradual depreciation of, the
rights secured by them (State vs. Custer County, 198 Pac, 362; State vs.
McDaniel, 231 Pac, 965; 237 Pac, 373). Since the proceeding is a
drastic one, it is the general rule that statutes authorizing searches
and seizures or search warrants must be strictly construed (Rose vs. St. Clair, 28 Fed. [2d], 189; Leonard vs. U. S., 6 Fed. [2d], 353; Perry vs. U. S., 14 Fed. [2d], 88; Cofer vs. State, 118 So., 613).

III. The petitioner claims that the search warrant issued by the
court is illegal because it has been based upon the affidavit of agent
Mariano G. Almeda in whose oath he declared that he had no personal
knowledge of the facts which were to serve as a basis for the issuance
of the warrant but that he had knowledge thereof through mere
information secured from a person whom he considered reliable. To the
question “What are your reasons for applying for this search warrant”,
appearing in the affidavit, the agent answered: “It has been reported
to me by a person whom I consider to be reliable that there are being
kept in said premises, books, documents, receipts, lists, chits, and
other papers used by him in connection with his activities as a
money-lender, charging a usurious rate of interest, in violation of the
law” and in attesting the truth of his statements contained in the
affidavit, the said agent stated that he found them to be correct and
true to the best of his knowledge and belief.

Section 1, paragraph 3, of Article III of the Constitution,
relative to the bill of rights, provides that “The right of the people
to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated, and no
warrants shall issue but upon probable cause, to be determined by the
judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place
to be searched, and the persons or things to be seized.” Section 97 of
General Orders, No, 58 provides that “A search warrant shall not issue
except for probable cause and upon application supported by oath
particularly describing the place to be searched and the person or
thing to be seized.” It will be noted that both provisions require that there be not only probable cause before the issuance of I a search
warrant but that the search warrant must be based upon an application
supported by oath of the applicant and the witnesses he may produce. In
its broadest sense, an oath includes any form of attestation by which a
party signifies that he is bound in conscience to perform an act
faithfully and truthfully; and it is sometimes defined as an outward
pledge given by the person taking it that his attestation or promise is
made under an immediate sense of his responsibility to God (Bouvier’s
Law Dictionary; State vs. Jaekson, 137 N. W., 1034; In re Sage, 24 Oh. Cir. Ct. [N. S.], 7; Pumphrey vs.
State, 122 N. W., 19; Priest vs. State, 6 N. W., 468; State vs. Jones,
154 Pac, 378; Atwood vs. State, 111 So., 865). 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
(XL S. vs. Tureaud, 20 Fed., 621; U. S. vs. Michalski, 265 Fed., 839;
U. S. vs. Pitotto, 267 Fed., 603; U. S. vs. Lai Chew, 298
Fed., 652). The true test of sufficiency of an aifidavit to warrant
issuance of a search warrant is whether it has been drawn in such a
manner that perjury could be charged thereon and affiant be held liable
for damages caused (State vs. Roosevelt County 20th Jud. Dis, Ct, 244 NPac, 280; State vs.
Quartier, 236 Pac, 746). It will likewise be noted that section 1,
paragraph 3, fit Article III of the Constitution prohibits unreasonable
/searches and seizures. Unreasonable searches and seizures 1 are a
menace against which the constitutional guaranties /afford full
protection. The term “unreasonable search and r seizure” is not defined
in the Constitution or in General Orders, No. 58, and it is said to
have no fixed, absolute or unchangeable meaning, although the term has
been defined in general language. All illegal searches and seizures are
unreasonable while lawful ones are reasonable. What constitutes a
reasonable or unreasonable search or seizure in any particular case is
purely a judicial question, determinable from a consideration of the
circumstances involved, including the purpose of the search, the
presence or absence of probable cause, the manner in which, the search
and seizure was made, the place or thing searched, and the character of
the articles procured (Go-Bartjmporting Co. vs. U. S., 75 Law. ed., 374; Peru vs. V. S., 4 Fed., [2d], 881; U. S. vs. Vatune, 292 Fed., 497; Agnello vs. U. S., 70 Law. ed., 145; Lambert vs. U. S., 282 Fed., 413; U. S. vs. Bateman, 278 Fed., 231; Mason vs. Rollins, 16 Fed. Cas. [No. 9252], 2 Biss., 99).

In view of the foregoing and under the above-cited authorities, it
appears that the affidavit, which served as the exclusive basis of the
search warrant, is insufficient and fatally I defective by reason of
the manner in which the oath was made, and therefore, it is hereby held
that the search warrant in question and the subsequent seizure of the
books, documents and other papers are illegal and do not in any way
warrant the deprivation to which the petitioner was subjected.

IV. Another ground alleged by the petitioner in asking that the
search warrant be declared illegal and cancelled is that it was not
supported by other affidavits aside from that made by the applicant. In
other words, it is contended that the search warrant cannot be issued
unless it be supported by affidavits made by the applicant and the
witnesses to be presented necessarily by him. Section 1, paragraph 3,
of Article III of the Constitution provides that no warrants shall
issue but upon probable cause, to be determined by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce. Section 98 of General Orders, No. 58 provides
that the judge or justice must, before issuing the warrant, examine
under oath the complainant and any witnesses he may produce and take
their depositions in writing. It is the practice in this jurisdiction
to attach the affidavit of at least the applicant or complainant to the
application. It is admitted that the judge who issued the search
warrant in this case, relied exclusively upon the affidavit made by
agent Mariano G. Almeda and that he did not require nor take the deposition of any other witness. Neither the Constitution nor General
Orders, No. 58 provides that it is of imperative necessity to take the
depositions of the witnesses to be presented by the applicant or
complainant in addition to the affidavit of the latter. The purpose of
both in requiring the presentation of depositions is nothing more than
to satisfy the committing magistrate of the existence of probable
cause. Therefore, if the affidavit of the applicant or complainant is
sufficient, the judge may dispense with that of other witnesses.
Inasmuch as the affidavit of the agent in this case was insufficient
because his knowledge of the facts was not personal but merely hearsay,
it is the duty of the judge to require the affidavit of one or more
witnesses for the purpose of determining the existence of probable
cause to warrant the issuance of the search warrant. When the affidavit
of the applicant or complainant contains sufficient facts within his
personal and direct knowledge, it is sufficient if the judge is
satisfied that there exists probable cause; when the applicant’s
knowledge of the facts is mere hearsay, the affidavit of one or more
witnesses having a personal knowledge of the facts is necessary. We
conclude, therefore, that the warrant issued is likewise illegal
because it was based only on the affidavit of the” agent who had no
personal knowledge of the facts.

V. The petitioner alleged as another ground for the declaration of
the illegality of the search warrant and the cancellation thereof, the
fact that it authorized its execution at night. Section 101 of General
Orders, No. 58 authorizes that the search be made at night when it is
positively asserted in the affidavit that the property is on the person
or in the place ordered to be searched. As we have declared the
affidavit insufficient and the warrant issued exclusively upon it
illegal, our conclusion is that the contention is equally well founded
and that the search could not legally be made at night.

VI. One of the grounds alleged by the petitioner in support of his
contention that the warrant was issued illegally is the lack of an
adequate description of the books and documents to be seized. Section
1, paragraph 3, of Article III of the Constitution, and section 97 of
General Orders, No. 58 provide that the affidavit to be presented,
which shall serve as the basis for determining whether probable cause
exists and whether the warrant should be issued, must contain a
particular description of the place to be searched and the person or
thing to be seized. These provisions are mandatory and must be strictly
complied with (Munch vs. U. S., 24 Fed. [2d], 518; XJ. S. vs. Boyd, 1 Fed. [2d], 1019; U. S. vs. Carlson, 292 Fed., 468; U. S. vs. Borkowski, 268 Fed., 408; In re Tri-State Coal & Coke Co., 253 Fed., 605; People vs. Mayen, 188 Cal., 237; People vs.
Kami, 256 111. App., 415); but where, by the nature of the goods to be
seized, their description must be rather general, it is not required
that a technical description be given, as this would mean that no
warrant could issue (People vs. Rubio, 57 Phil., 284; People vs. Kahn, supra).
The only description of the articles given in the affidavit presented
to the judge was as follows: “that there are being kept in said
premises books, documents, receipts, lists, chits and other papers used
by him in connection with his activities as money-lender, charging a
usurious rate of interest, in violation of the law.” 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.

VII. The last ground alleged by the petitioner, in support of his
claim that the search warrant was obtained illegally, is that the
articles were seized in order that the Anti-Usury Board might provide
itself with evidence to be used by li in the criminal case or cases
which might be filed against him for violation of the Anti-Usury Law.
At the hearing of the incidents of the case raised before the court; it
clearly appeared that the books and documents had really been seized to
enable the Anti-Usury Board to conduct an investigation and later use
all or some of the articles in question as evidence against the
petitioner in the criminal cases that may be filed against him. The
seizure of books and documents by means of a search warrant, for the
purpose of using them as evidence in a criminal case against the person
in whose possession they were found, is unconstitutional because it
makes the warrant unreasonable, and it is equivalent to a violation of
the constitutional provision prohibiting the compulsion of an accused
to testify against himself (Uy Kheytin vs. Villareal, 42 Phil, 886; Brady vs. U. S., 266 U. S., 620; Temperani vs. U. S., 299 Fed., 365; U. S. vs. Madden, 297 Fed., 679; Boyd vs. U. S.; 116 U. S., 616; Carroll vs.
U. S., 267 U. S., 132). Therefore, it appearing that at least nineteen
of the documents in question were seized for the purpose of using them
as evidence against the petitioner in the criminal proceeding or
proceedings for violation of the Anti-Usury Law, which it is attempted
to institute against him, we hold that the search warrant issued is
illegal and that the documents should be returned to him.

The Anti-Usury Board insinuates in its answer that the petitioner
cannot now question the validity of the search warrant or the
proceedings had subsequent to the issuance thereof, because he has
waived his constitutional rights in proposing a compromise whereby he
agreed to pay a tine of 200 for the purpose of evading the criminal
proceeding or proceedings. We are of the opinion that there was no such
waiver, first, because the petitioner has emphatically denied the offer
of compromise and, second, because if there was a compromise it
referred not to the search warrant and the incidents thereof but to the
institution of criminal proceedings for violation of the Anti-Usury
Law. The waiver would have been a good defense for the respondents had
the petitioner voluntarily consented to the search and seizure of the
articles in question, but that was not the case because the petitioner
protested from the beginning and stated his protest in writing in the
insufficient inventory furnished him by the agents.

Said board alleges as another defense that the remedy sought by the
petitioner does not lie because he can appeal from the orders which
prejudiced him and are the subject matter of his petition. Section 222
of the Code of Civil Procedure in fact provides that mandamus will not
issue when there is another plain, speedy and adequate remedy in the
ordinary course of law. We are of the opinion, however, that an appeal
from said orders would not in this case be a plain, speedy and adequate
remedy for the petitioner because a long time would have to elapse
before he recovers possession of the documents and before the rights,
of which he has been unlawfully deprived, are restored to him (Fajardo vs. Llorente, 6 Phil., 426; Manotoc vs. McMicking and Trinidad, 10 Phil., 119; Cruz Herrera de Lukban vs. McMicking, 14 Phil., 641; Lamb vs. Phipps, 22 Phil., 456).

Summarizing the foregoing conclusions, we hold:

1. 1That the provisions of the Constitution and General
   Orders, No. 58, relative to search and seizure, should be given a
   liberal construction in favor of the individual in order to maintain
   the constitutional guaranties whole and in their full force;

2. That since the provisions in question are drastic in their form and
   fundamentally restrict the enjoyment of the ownership, possession and
   use of the personal property of the individual, they should be strictly
   construed;

3. That the search and seizure made are illegal for the following reasons: (a)
   Because the warrant was based solely upon the affidavit of the
   petitioner who had no personal knowledge of the facts necessary to
   determine the existence or non-existence of probable cause, and (b)
   because the warrant was issued for the sole purpose of seizing evidence
   which would later be used in the criminal proceedings that might be
   instituted against the petitioner, for violation of the Anti-Usury Law;

4. That as the warrant had been issued unreasonably, and as it does not
   appear positively in the affidavit that the articles were in the
   possession of the petitioner and in the place indicated, neither could
   the search and seizure be made at night;

5. That although it is not mandatory to present affidavits of witnesses to
   corroborate the applicant or complainant in cases where the latter has
   personal knowledge of the facts, when the applicant’s or complainant’s
   knowledge of the facts is merely hearsay, it is the duty of the judge
   to require affidavits of other witnesses so that he may determine
   whether probable cause exists;

6. That a
   detailed description of the person and place to be searched and the
   articles to be seized is necessary, but where, by the nature of the
   articles to be seized, their description must be rather general, it is
   not required that a technical description be given, as this would mean
   that no warrant could issue;

7. That the
   petitioner did not waive his constitutional rights because the offer of
   compromise or settlement attributed to him, does not mean, if so made,
   that he voluntarily tolerated the search and seizure; and

8. That an appeal from the orders questioned by the petitioner, if taken
   by him, would not be an effective, speedy or adequate remedy in the
   ordinary course of law, and, consequently, the petition for mandamus
   filed by him lies.

For the foregoing considerations, the search warrant and the
seizure of June 3, 1936, and the orders of the respondent court
authorizing the retention of the books and documents, are declared
illegal and are set aside, and it is ordered that the judge presiding
over the Court of First Instance of Tayabas direct the immediate return
to the petitioner of the nineteen (19) documents designated on pages 1
to 4 of the inventory by Nos. 5, 10, 16, 23, 25, 26, 27, 30, 31, 34,
36, 37, 38, 39, 40, 41, 42, 43 and 45, without special pronouncement as
to costs. So ordered.

Avancena, C. J., Villa-Real, Diaz, and Concepcion, JJ., concur.