ERLE PENDON, FOR HIMSELF AND AS MANAGING PARTNER OF KENER TRADING COMPANY, PETITIONER, VS. THE COURT OF APPEALS, HON. ENRIQUE T. JOCSON, IN HIS CAPACITY AS PRESIDING JUDGE OF BR…

This petition for review on certiorari seeks to set aside
the decision (pp. 38-42, Rollo) of
respondent Court of Appeals which affirmed the orders dated August 24, 1987 (p. 43, Record) and October 14, 1987 (pp. 53-54, Record)
of the Regional Trial Court of Negros Occidental in
Criminal Case No. 5657.

On February 4, 1987, First Lieutenant Felipe L. Rojas, Officer-in-Charge of the
Philippine Constabulary-Criminal Investigation Service (PC-CIS), Bacolod City,
filed an application for a search warrant, alleging:

“x x x.

“That he was informed and verily believes that KENNETH SIAO who may
be found at KENER TRADING located at Rizal Street
corner Lacson Street, Bacolod
City has/have in her/his/their possession and control the following property/ies, to wit:

“NAPOCOR Galvanized bolts, grounding motor
drive assembly; aluminum wires and other
NAPOCOR Tower
parts and line accessories

which he/she/they
is/are concealing in the premises above mentioned.

“The undersigned has verified the report and found it to be the
fact and has therefore reasons to believe that a SEARCH WARRANT should be
issued to enable the undersigned or any agent of the law to take possession and
bring the following described property/ies, to wit:

“NAPOCOR Galvanized bolts; grounding motor
drive assembly; aluminum wires and other
NAPOCOR Tower
parts and line accessories.

“WHEREFORE, the undersigned prays this Honorable Court to issue a
SEARCH WARRANT commanding any peace officer to search the premises/house
described in this application and to seize and bring to this Honorable Court
the person/property/ies above-mentioned to be dealt
with as the law may direct.

Bacolod City, Philippines

Feb. 4, 1987 _________.

SGD.
FELIPE L. ROJAS, JR.

1LT,     PC

OIC, PFOCIS, Bacolod
City”

(p. 18, Records)

The application was subscribed before Judge Demosthenes D. Magallanes of the Municipal
Trial Court of
Bacolod City
and supported by the joint deposition of two (2) witnesses, Ignacio L. Reyes,
an employee of NAPOCOR (National Power Corporation) and IAI Eduardo Abaja of the
CIS of Bacolod City, quoted as follows:

“We, Ignacio L. Reyes
and IAI Eduardo Abaja, CIS after having been duly
sworn to, testify as follows:

“1.  QUESTION:       What are your names and other personal circumstances?

“ANSWER:        IGNACIO
L. REYES, 34 years old, married, an employee of NAPOCOR and presently residing
at Eroreco Subdivision, Bacolod
City and AIA EDUARDO ABAJA, CIS, regular member of the CO/INP CIS Command, Bacolod
City.

“2.  QUESTION:       Do you know the
premises/house of KENNETH SIAO located at Rizal Street, near cor. Lacson
St., Bacolod
City?

“ANSWER:        Yes, Sir.

“3.  QUESTION:       Do you have personal knowledge that said KENNETH SIAO
who may be found in the said premises/house has/have in his/her/their
possession and control the following property, to wit:

“NAPOCOR Galvanized bolts, grounding
motor drive assembly, aluminum wires and
other NAPOCOR Tower parts and line accessories?

“ANSWER:        Yes, sir.

“4.  QUESTION:       How do
you know that above-described property/ies is/are being kept in said premises/house?

“ANSWER:        We
conducted surveillance and we were able to purchase some of these items.

“IN WITNESS WHEREOF, we hereunto set our hands and affixed our
signature this 4th day of Feb. 1987 at Bacolod
City, Philippines.

“SGD. IGNACIO L. REYES                     SGD.
EDUARDO J. ABAJA

Affiant                                                              Affiant

SUBSCRIBED AND SWORN to, before me this 4th
day of Feb. 1987 at Bacolod
City, Philippines.

SGD. DEMOSTHENES L.
MAGALLANES

Judge

MUNICIPAL TRIAL COURT

BACOLOD
CITY”

(p. 19, Record)

On the basis of the foregoing application and joint deposition,
Judge Magallanes issued Search Warrant No. 181,
commanding the search of the property described in the warrant.

Subsequently, constabulary officers stationed in Bacolod City conducted a search of the premises described in the search warrant and
seized the following articles, to wit: 
1) 272 kilos of galvanized bolts, V chuckle and U-bolts; and 2) 3 and
1/2 feet angular bar.  The receipt was
signed by Digno Mamaril,
Pc. Sergeant and marked “from Kenneth Siao” p. 21, Record).

A complaint for violation of the Anti-Fencing Law (P.D. 1612) was
filed against Kenneth Siao with the office of the
City Fiscal by the National Power Corporation. 
Thereafter, Siao filed a counter-affidavit
alleging that he had previously relinquished all his rights and ownership over
the Kener Trading to herein petitioner Erle Pendon.  In a resolution (pp. 22-23, Record)
dated May 18, 1987, the office of the City Fiscal recommended the dismissal of
the complaint against Siao and the filing of a
complaint for the same violation against petitioner.  On the same day, a complaint (p. 24, Record)
for Violation of the Anti-Fencing Law was filed against petitioner and docketed
as Criminal Case No. 5657 of the Regional Trial Court of Negros
Occidental.  The case was raffled to Branch 47 of the same
court presided over by respondent Judge Enrique T. Jocson.

Before his arraignment, petitioner filed on July 9, 1987, an application for the return of the
articles seized by virtue of Search Warrant No. 181 (pp. 26-29, Record) on the
ground that the said search warrant was illegally issued.  The prosecuting fiscal filed an opposition to
the application (pp. 31-32, Record).  The
application was subsequently amended to an application for quashal
of the illegally-issued search warrant and for the return of the articles
seized by virtue thereof (pp. 33-38, Records).

On August 24, 1987,
respondent Judge Jocson issued an order impliedly
denying the application for the quashal of the search
warrant without ruling on the issue of the validity of the issuance
thereof.  The order states:

“Counsel for accused having admitted in the hearing in open court
that at least one of the seized items bears the identifying mark of the
complainant National Power Corporation, and there being no statement that the
seized items were acquired in usual course of business for value, this court is
constrained to have the case tried without resolving whether or not the
questioned search warrant was issued validly.” (p. 43, Records)

A motion for reconsideration was filed by petitioner but it was
denied on October 14, 1987
(p. 11, Rollo).

On October 20, 1987,
petitioner filed with the Court of Appeals a petition for certiorari,
prohibition and mandamus with a prayer for a restraining order,
assailing the legality of search warrant No. 181 and praying for the permanent
prohibition against the use in evidence of the articles and properties seized
and the return thereof to petitioner.  On
April 4, 1988, respondent
Court of Appeals dismissed the petition. 
The appellate court found the existence of a probable cause to justify
the issuance of the search warrant.  The
respondent court held:

“x x x

“For reasons indicated, We hold that the
evidence was sufficient to sustain the validity of the issuance of the Search
Warrant No. 181 and to sustain further the ruling of the respondent trial court
in denying the petition for the return of the articles and personal properties
seized thereunder.

“WHEREFORE, this petition is hereby DISMISSED, with costs against
petitioner.  The previous order to
maintain the status quo is hereby withdrawn and set aside.

“SO ORDERED.” (p. 41, Rollo)

The motion for reconsideration of the above decision filed by
petitioner on May 2, 1988
was denied in a resolution (p.
49, Rollo) dated July 21, 1988.

The basic issue raised in this petition is the legality of the issuance of Search Warrant No. 181.  It is the contention of petitioner that the
application for the search warrant and the joint deposition of the witnesses miserably
failed to fulfill the requirements prescribed by the Constitution and the
rules.

The petitioner argues that the application of 1st Lt. Rojas and
the joint deposition of Abaja and Reyes failed to
comply with the requisites of searching questions and answers.  The joint deposition of the witnesses showed
that the questions therein were pre-typed,
mimeographed and the answers of the witnesses were merely filled-in.  No examination of the applicant and of the
joint deponents was personally conducted by Judge Magallanes
as required by law and the rules.

Additionally, petitioner also contends that both the application
of Rojas and the joint deposition of Abaya and Reyes
show that neither of the affiants had personal knowledge that any specific
offense was committed by
petitioner or that the articles sought to be seized were stolen or that being
so, they were brought to Kenneth Siao.

Lastly, the petitioner contends that, even assuming for the sake
of polemics, that the articles belong to the latter, his Constitutional right
prevails over that of NAPOCOR.

The right against unreasonable searches and seizures is
guaranteed under Article 111 (Bill of Rights), Section 2 of the 1987 Constitution of the Philippines
which 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.”

Under the above provision, the issuance of a search warrant is
justified upon a finding of probable cause. 
Probable cause for a search 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 the objects sought in connection with the offense are in the
place sought to be searched (Burgos, Sr. v. Chief of Staff, G.R. No. 64261,
Dec. 26, 1984, 133 SCRA 800).  In
determining the existence of probable cause, it is required that:  1) the judge (or) officer 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 (Marinas v. Sioco, 104 SCRA 403, Ponsica v. Ignalaga, G.R. No.
72301, July 31, 1987, 152 SCRA 647). 
These requirements are provided under Section 4, Rule 126 of the New
Rules of Criminal Procedure which states: 
“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 the witnesses he may produce on facts
personally known to them and attach to the record their sworn statements
together with any affidavits submitted.”

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 (Luna v. Plaza, G.R. No. L-27511, Nov. 29, 1968), however, the opinion or finding of
probable cause must, to a certain degree, be substantiated or supported by the
record.

In this case, We find that the
requirement mandated by the law and the rules that the judge must personally
examine the applicant and his witnesses in the form of searching questions
and answers before issuing the warrant, was not sufficiently
complied with.  The applicant himself was
not asked any searching question by Judge Magallanes.  The records disclose that the only part
played by the applicant, Lieutenant Rojas was to subscribe the application
before Judge Magallanes.  The application contained pre-typed
questions, none of which stated that applicant had personal knowledge of a
robbery or a theft and that the
proceeds thereof are in the possession and control of the person against whom
the search warrant was sought to be issued. 
In the case of Roan v. Gonzales, G.R. No. 71410, Nov. 25, 1986, 145 SCRA
687, citing the case of Mata v. Bayona, G.R. No.
50720, March 26, 1984, 128 SCRA 388, where the applicant himself was not
subjected to an interrogation but was questioned only “to ascertain, among
others, if he knew and understood (his affidavit) and only because the
application was not yet subscribed and sworn to,” We held that:

“Mere affidavits of the complainant and his witnesses are thus not sufficient.  The examining Judge has to take depositions
in writing of the complainant and the witnesses he may produce and 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
declarations are false.’

“x x x

“It is axiomatic that 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 affidavit but must make
his own inquiry on the intent and
justification of the application.”

(underscoring
supplied; p. 695)

Likewise, the joint deposition made by the two (2) witnesses
presented by the applicant can hardly satisfy the same requirement.  The public respondent prosecutor admitted in his memorandum that the questions
propounded were pre-typed.

The offense which petitioner was sought to be charged was
violation of the anti-fencing law which punishes the act of any person who,
with intent to gain for himself or for another, shall buy, receive, possess,
keep, acquire, conceal, sell or dispose of, or shall buy or sell, or in any
other manner deal in any article, item, object or anything of value which he
knows, or should have known to him, to have been derived from the proceeds of
the crime of robbery or theft (Sec. 2a, P. D. 1612).  The four (4) questions propounded could
hardly support a finding of probable cause. 
The first question was on the personal circumstances of the
deponents.  The second and third were
leading questions answerable by yes or no. 
The fourth question was on how the deponents knew about their answers in
the second and third questions.  The
judge could have exploited this last question to convince himself of the
existence of a probable cause
but he did not.  There was also no
statement in the joint deposition that the articles sought to be seized were
derived from the proceeds of the crime of robbery or a theft or that applicants
have any knowledge that a robbery
or theft was committed and the articles sought to be seized were the proceeds
thereof.  It was not even shown what
connection Kenneth Siao has with Kener
Trading or with the premises sought to be searched.  By and large, neither the application nor the
joint deposition provided facts or circumstance which could lead a prudent man to believe that an
offense had been committed and that the objects sought in connection with the
offense, if any, are in the possession of the person named in the application.

“x x
x [T]he searching questions propounded to the
applicants of the search warrant and his 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 even be held in the secrecy of his 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.  (Meta v. Bayona, 50720, March 26, 1984, 128 SCRA 388) (underlining supplied)

And, in Quintero v. NBI, G.R. No.
L-35149, June 23, 1988, 162
SCRA 467, 483:

“As held in Nolasco v. Paño No. 69803, October 8, 1985, 139 SCRA 163), 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.”

Another infirmity of Search Warrant No. 181 is its generality.  The law requires that the articles sought to
be seized must be described with particularity. 
The items listed in the warrant, to wit: 
“NAPOCOR Galvanized bolts, grounding motor drive assembly, aluminum
wires and other NAPOCOR Towers
parts and line accessories” are so general that the searching team can
practically take half of the business of Kener
Trading, the premises searched.  Kener Trading, as alleged
in petitioner’s petition before respondent Court of Appeals and which has not
been denied by respondent, is engaged in the business of buying and selling
scrap metals, second hand spare parts and accessories and empty bottles.

Far more important is that the items described in the application
do not fall under the list of personal property which may be seized under
Section 2, Rule 126 of the Rules on Criminal Procedure because neither the
application nor the joint deposition alleged that the item/s sought to be
seized were:  a) the subject of an
offense; b) stolen or embezzled property and other proceeds or fruits of an
offense; and c) used or intended to be used as a means of committing an offense.

It is noted that respondent Judge Jocson
himself had doubts about the existence of probable cause in the issuance of the
search warrant.  In denying petitioner’s
motion for reconsideration of the denial of his motion to quash and application
for articles seized by virtue of search warrant No. 181, he stated:

“The seeming lack of probable cause
during the application for search warrant
in the lower court is cured by the admission for the accused of counsel that at
least one of the items seized bore the identifying mark of complainant National
Power Corporation and the failure to aver in the quashal
motion and in the open hearing that the seized items themselves were acquired
in the usual course of business for value in good faith.  However, this order is without prejudice to
the right of the accused to pursue against the administrative liability of MTCC
Judge Demosthenes Magallanes.” (p. 54, Rollo)

In his memorandum, City Fiscal Mirano
stated that the articles seized by virtue of search warrant No. 181 was taken from the possession of
petitioner who signed the receipt in behalf of Kener
Trading, which possession is punishable under Section 5, P.D. 1612, which states:

“Sec. 5. 
Presumption of Fencing. – Mere possession of
any goods, article, item, object or anything of value which has been the
subject of robbery or thievery shall be prima facie evidence of
fencing.”

No matter how incriminating
the articles taken from the petitioner may be, their seizure cannot validate an
invalid warrant.  Again, in the case of Mata v. Bayona, G.R. No. 50720, March 26, 1984, 128 SCRA 388:

“x x x that nothing can
justify the issuance of the search warrant but the fulfillment of the legal
requisites.  It might be well to
point out what has been said in Asian Surety & Insurance Co., Inc. v.
Herrera:

‘It has been said that 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 inspection and scrutiny of others.  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 the citizens, for the enforcement of no statute is
of sufficient importance to justify indifference
to the basic principles of government.”

“Thus, in issuing a search warrant the Judge must strictly comply
with the requirements of the Constitution and the statutory provisions.  A liberal construction should be given in
favor of the individual to prevent stealthy encroachment upon, or gradual
depreciation of the rights secured by the Constitution.  No presumption of
regularity are to be invoked in aid of the process when an officer
undertakes to justify it.”

Finally, the seized articles were described in the receipt issued
by PC Sergeant Mamaril as galvanized bolts, V-chuckle, U-bolts
and 3 1/2 feet angular bar (p. 21, Record). 
There is no showing that the possession
thereof is prohibited by law hence, the return thereof to petitioner is
proper.  Also, the use in evidence of the
articles seized pursuant to an invalid search warrant is enjoined by Section
3(2), Article III of the Constitution.

ACCORDINGLY, the petition is GRANTED.  Judgment is hereby rendered: 1) declaring
Search Warrant No. 181 issued by Judge Demosthenes Magallanes NULL and VOID; 2) ordering the return
of the items seized by virtue of the said warrant to herein petitioner; and 3) permanently enjoining
respondents from using in evidence the articles seized by virtue of Search
Warrant No. 181 in Criminal Case No. 5657.

SO ORDERED.

Narvasa, (Chairman), Cruz, Gancayco, and Grino-Aquino, JJ., concur.