NICOMEDES SILVA @ “COMEDES”, MARLON SILVA @ “TAMA” AND ANTONIETA SILVA, PETITIONERS, VS. THE HONORABLE PRESIDING JUDGE, REGIONAL TRIAL COURT OF NEGROS ORIENTAL, BRANCH XXXIII, D…

In this special civil action for certiorari, petitioners
seek the nullification of Search Warrant No. 1 issued by respondent Judge as
well as the return of the money in the
amount of P1,231.00 seized from petitioner Antonieta Silva.

The antecedent facts are as follows:

On June 13, 1986,
M/Sgt. Ranulfo Villamor,
Jr., as chief of the PC Narcom Detachment in Dumaguete City,
Negros Oriental, filed an “Application for
Search Warrant” with the Regional Trial Court, Branch XXXIII, Dumaguete City
against petitioners Nicomedes Silva and Marlon Silva.^[1]
This application was accompanied by a “Deposition of Witness”
executed by Pfc. Arthur M. Alcoran and Pat. Leon T. Quindo, also dated June
13, 1986.^[2]

On the same day, Judge Nickarter A. Ontal, then Presiding Judge of the Regional Trial Court,
Branch XXXIII, Dumaguete City, pursuant to the said
“Application for Search Warrant” and “Depo­sition of
Witness”, issued Search Warrant No. 1, directing the aforesaid police
officers to search the room of Marlon Silva in the residence of Nicomedes Silva for violation of Republic Act No. 6425,
otherwise known as the Dangerous Drugs Act of 1972, as amended.  Pertinent portions of Search Warrant No. 1
read as follows:

“It appearing to the satisfaction of the undersigned after
examining oath (sic) MSGT Ranulfo T.
Villamor,
Jr. and his witnessess sic) Pfc Arthur M. Alcoran and Pat. Leon T.
Quindo
that there is probable cause to believe that possesion and control
of Marijuana dried leaves, cigarettes,
joint has been
committed or is about to be committed and that there are good and sufficient
reasons to believe that marijuana
dried leaves, cigarettes, joint has in possession and/or
control at Tama’s Room (Rgt side 1st Floor) located at Nono-Limbaga Drive, Tanjay, Neg. Or. which is/are:

“X (Subject of
the offense stated above (Stolen or embezzled or other proceeds of fruits of the offense;

“X (Used or
intended to be used as means of
committing an offense.

“You are hereby commanded to make an immediate search at any time
of the day (night) of the room of Tama Silva residence of his father Comedes Silva to open (sic)
aparadors, lockers, cabinets, cartoons, containers,
forthwith seize and take possession of the following property Marijuana dried leaves, cigarettes, joint and bring
the said property to the undersigned to be dealt with as the law directs.“^[3]

In the course of the search, the serving officers also seized
money belonging to Antonieta Silva in the amount of
P1,231.40.

On June 16, 1986, Antonieta Silva filed
a motion for the return of the said amount on the grounds that the search
warrant only authorized the serving officers to seize marijuana dried leaves,
cigarettes and joint, and that said officers failed or refused to make a return
of the said search warrant in gross violation of section 11, Rule 126 of the
Rules of Court.^[4]

Acting on said motion, Judge Ontal
issued an Order dated July 1, 1986, stating that the court “holds in
abeyance the disposition of the said amount of P1,231.40 pending the filing of
appropriate charges in connection with the search warrant.”^[5]

On July 28, 1987, petitioners filed a motion to quash Search
Warrant No. 1 on the grounds that (1) it was issued on the sole basis of a
mimeographed “Application for Search Warrant” and “Deposition of
Witness”, which were accomplished by merely filling in the blanks and (2)
the judge failed to personally examine the complainant and witnesses by
searching questions and answers in violation of Section 3, Rule 126 of the
Rules of Court.^[6]

On August 11, 1987, respondent trial court, through Judge Eugenio M. Cruz, who, by then, had replaced retired Judge Ontal, issued an Order denying the motion for lack of
merit, finding the requisites necessary for the issuance of a valid search
warrant duly complied with.^[7]

A motion for reconsideration dated September 1, 1987 filed by
petitioners was likewise denied by Judge Cruz in an order dated October 19,
1987.

Hence, this special civil action for certiorari.

Petitioners allege that the issuance of Search Warrant No. 1 was
tainted with illegality and that respondent Judge should be viewed to have
acted without or in excess of
jurisdiction, or committed grave abuse of discretion amounting to lack of
jurisdiction when he issued the Order dated August 11, 1987, denying their
motion to quash Search Warrant No. 1.

We rule for petitioners.

Section 2, Article III (Bill of Rights) of the 1987 Constitution
guarantees the right to personal liberty and security of homes against
unreasonable searches and seizures.  This
section provides:

“Sec. 2.  The right of
the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon
probable cause 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 persons or things to be
seized.”

The purpose of the constitutional provision against unlawful
searches and seizures is to prevent violations of private security in person
and property, and unlawful invasion of the sanctity of the home, by officers of
the law acting under legislative or judicial sanction, and to give remedy
against such usurpations when attempted.^[8]

Thus, Sections 3 and 4, Rule 126 of the Rules of Court provide
for the requisites for the issuance of a search warrant, to wit:

“SEC. 3.  Requisite for
issuing search warrant. – A search warrant shall not issue but 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.

“SEC. 4.  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 any witnesses he may produce on facts personally known to them
and attach to the record their sworn statements together with any affidavits
submitted.”

Based on the aforecited constitutional
and statutory provi­sions, the judge must, before issuing a search warrant,
determine whether there is probable cause by examining the complainant and
witnesses through searching questions and answers.

In the case of Prudente vs.
Dayrit, G.R. No. 82870, December 14, 1989, 180
SCRA 69, 76, this Court defined “probable cause” as follows:

“The ‘probable cause’ for a valid search warrant, has been
defined ‘as such facts and circumstances which would lead a reasonably discreet
and prudent man to believe that an offense
has been committed, and that objects sought in connection with the offense are
in the place sought to be searched‘.  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.”

In the case at bar, we have carefully examined the questioned
search warrant as well as the “Application for Search Warrant” and
“Deposition of Witness”, and found that Judge Ontal
failed to comply with the legal requirement that he must examine the applicant
and his witnesses in the form of searching questions and answers in order to
determine the existence of probable cause. 
The joint “Deposition of Witness” executed by Pfc. Alcoran and Pat. Quindo, which
was submitted together with the “Application for Search Warrant”
contained, for the most part, suggestive questions answerable by merely placing
“yes” or “no” in the blanks provided thereon.  In fact there were only four (4) questions
asked, to wit:

“Q
– Do
you personally know M/Sgt. Ranulfo Villamor,
Jr. the applicant for a search warrant?

“A
–  Yes, sir.

“Q – Do you have personal knowledge that the said
premises subject of the offense stated above, and other proceeds of fruit of
the offense, used or obtain (sic) or intended to be used as means of committing
an offense?

“A
–  Yes, sir.

“Q
– Do you know personally who is/are the
person who has/have the property in his/their possession and control?

“A
–  Yes, sir.

“Q
– How did you know all this (sic) things?

“A
–  Through discreet surveillance.“^[9]

The above deposition did not only contain leading questions but
it was also very broad.  The questions
propounded to the witnesses were in fact, not probing but were merely routinary.  The
deposition was already mimeographed and all that the witnesses had to do was
fill in their answers on the blanks provided.

In the case of Nolasco vs.
Paño, G.R.
No. 69803, October 8, 1985, 139 SCRA 152, 163, this Court held:

“The  ‘probable cause’
required to justify the issuance of a search warrant comprehends such facts and
circumstances as will induce a cautious man to rely upon them and act in
pursuant thereof.  Of the 8 questions
asked, the 1st, 2nd and 4th pertain to identity.  The 3rd and 5th are leading not searching
questions.  The 6th, 7th and 8th refer to
the description of the personalities to be seized, which is identical to that
in the Search Warrant and suffers from the same lack of particularity.  The examination conducted was general in
nature and merely repetitious of the deposition of said witness.  Mere generalization will not suffice and does
not satisfy the requirements of probable cause upon which a warrant may
issue.”

Likewise, in the Prudente case cited
earlier, this Court declared the search warrant issued as invalid due to the
failure of the judge to examine the witness in the form of searching questions
and answers.  Pertinent portion of the
decision reads:

“Moreover, a perusal of the deposition of P/Lt. Florencio Angeles shows that it was too brief and short.  Respondent Judge did not examine him ‘in the
form of searching questions and answers’. 
On the contrary, the questions asked were leading as they called for a
simple ‘yes’ or ‘no’ answer.  As held in Quintero vs. NBI, ‘the questions propounded by respondent
Executive Judge to the applicant’s witness are not sufficiently searching to
establish probable cause.  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.”^[10]

Thus, in issuing a search warrant, the judge must strictly comply
with the constitutional and statutory requirement that he must determine the
existence of probable cause by personally examining the applicant and his
witnesses in the form of searching questions and answers.  His failure
to comply with this requirement constitutes
grave abuse of discretion.  As
declared in Marcelo vs. De Guzman, G.R. No. L-29077, June 29, 1982, 114 SCRA 657, “the
capricious disregard by the judge in not complying
with the requirements before issuance of search warrants constitutes
abuse of discretion”.

The officers implementing the search warrant clearly abused their
authority when they seized the money of Antonieta
Silva.  This is highly irregular
considering that Antonieta Silva was not even named
as one of the respondents, that
the warrant did not indicate the seizure of money but only of marijuana leaves,
cigarettes and joints, and that the search warrant was issued for the seizure
of personal property (a) subject of the offense and (b) used or intended to be
used as means of committing an offense and NOT for personal property stolen or embezzled or other proceeds of
fruits of the offense.  Thus, the then presiding
Judge Ontal likewise abused his discretion when he
rejected the motion of petitioner Antonieta Silva
seeking the return of her seized money.

WHEREFORE, the petition is granted.  Search Warrant No. 1 is hereby declared null
and void.  Respondent Judge of the Regional Trial Court of Negros
Oriental, Branch XXXIII is directed to order the return to petitioner Antonieta Silva of the amount of P1,231.40 which had
earlier been seized from her by virtue of the illegal search warrant.  This decision is immediately executory.  No costs.

SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin, and Davide, Jr.,
JJ., concur.

^[1]
Rollo, p. 20.

^[2]
Rollo, p. 21.

^[3]
Rollo, p. 22.

^[4]
Rollo, pp. 23-24.

^[5]
Rollo, p. 25.

^[6]
Rollo, pp. 26-27.

^[7]
Rollo, p. 29.

^[8]
Alvero v. Dizon,
76 Phil. 637 (1946).

^[9]
Rollo, p. 21.

^[10]
Supra at p. 79.