NONILLON A. BAGALIHOG, PETITIONER, VS. HON. JUDGE GIL P. FERNANDEZ, PRESIDING JUDGE OF BR. 45, RTC OF MASBATE; AND MAJOR JULITO ROXAS, RESPONDENTS.

We are asked once
again to rule on the validity of a search and seizure as tested by the
requirements of the Bill of Rights and to balance the demands of an orderly
society with the imperatives of individual liberty.

On March 17, 1989,
Rep. Moises Espinosa was shot to death shortly after
disembarking at the Masbate
Airport.  Witnesses said one of the gunmen fled on a
motorcycle.  On the same day, the
petitioner’s house, which was near the airport, was searched with his consent
to see if the killers had sought refuge there. 
The search proved fruitless.

Two days later, Capt. Julito Roxas and his men from the Philippine Constabulary seized
the petitioner’s motorcycle and took it to the PC headquarters in Masbate. 
They had no search warrant.  The
motorcycle was impounded on the suspicion that it was one of the vehicles used
by the killers.

After investigation, the petitioner and several others were
charged with multiple murder and frustrated murder for the killing of Espinosa
and three of his bodyguards and the wounding of another person.

On June 21, 1989, the petitioner
filed a complaint
against Capt. Roxas for the recovery of the
motorcycle with an application for a writ of replevin,
plus damages in the total amount of P55,000.00.^[1]
This was docketed as Civil Case No. 3878 in Branch 48 of the Regional Trial
Court of Masbate.

On November 7, 1989,
the petitioner filed an urgent manifestation for the deposit of the motorcycle
with the clerk of court of the Regional Trial Court of Masbate,
on the ground that PC soldiers were using the vehicle without authority.  The motion was granted on November 10, 1989, by Judge Ricardo Butalid.

Judge Butalid later inhibited himself
and Civil Case No. 3878 was transferred to Branch 45, presided by Judge Gil
Fernandez.  In the criminal cases, a
change of venue was ordered by this Court from Branch 45 of the Regional Trial
Court of Masbate to Branch 56 of the Regional Trial
Court of Makati.

On October 12, 1990,
Judge Fernandez dismissed Civil Case No. 3878, in an order holding in part as
follows:

The question to be resolved is whether Replevin
is proper to recover the possession of said motorcycle.

It is admitted that the motorcycle in question, now in the
possession of the Clerk of Court of Masbate, is to be
used as evidence in Criminal Case Nos. 5811-5814, now pending trial before
Branch 56 of the Regional Trial Court of Makati, Metro Manila.  This Court
opined that it has no jurisdiction to release evidence impounded or surrendered
to the PC-CIS Task Force Espinosa.

Property seized in enforcing criminal laws is in the custody of the
law and cannot be replevied until such custody is
ended.  (77 C.J.S. 28.)

Granting as claimed by plaintiff that said motorcycle was illegally
seized, he can raise the issue when presented during the trial.

The proper Court to order its release, the motorcycle in question,
is the Presiding Judge of Branch 56 of the Regional Trial Court of Makati, Metro Manila.

WHEREFORE, this case is hereby ordered DISMISSED for lack of
jurisdiction.

Reconsideration having been denied, the petitioner now asks this
Court to reverse the said order.

His contention is that the motorcycle was invalidly seized and
that therefore he has a right
to its return.  The proper remedy for
this purpose is his complaint for recovery and the issuance of a writ of replevin as authorized by the Rules of Court.  In refusing to grant him relief and
dismissing the case instead on the ground of lack of jurisdiction, the
respondent court committed reversible error that he prays this Court will
correct.

In his comment, the private respondent admits the absence of a
search warrant when the motorcycle was seized but stresses that the crime
perpetrated is a heinous
offense.  Espinosa was a man of
consequence.  The motorcycle in question
is an extremely mobile vehicle and can be easily dismantled or hidden, and the
unique situation existing at that time required him to place it in the custody
of the PC-CIS Task Force Espinosa without first securing a search warrant.  In doing so, he merely complied with the
orders of his superior to preserve the vehicle for use as evidence in the
criminal cases.

We share Captain Roxas’s concern for
the apprehension of the killers but cannot agree with his methods.  While recognizing the need for the punishment
of crime, we must remind him that in our system of criminal justice, the end
does not justify the means.  For all his
strong conviction about the guilt of the petitioner, the private respondent
must still abide by the Constitution and observe the requirements of the Bill
of Rights.

Article III, Section 2, provides:

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.

This guaranty is one of the greatest of individual liberties and
was already recognized even during the days of the absolute monarchies, when
the king could do no wrong.  On this
right, Cooley wrote:  “Awe
surrounded and majesty clothed the King, but the humblest subject might shut the door of his cottage against him
and defend from intrusion that privacy which was as sacred as the kingly prerogatives.”^[2]

The provision protects not only those who appear to be innocent
but also those who appear to be guilty but are nevertheless to be presumed
innocent until the contrary is proved. 
The mere fact that in the private respondent’s view the crime involved
is “heinous” and the
victim was “a man of consequence” did not authorize disregard of the
constitutional guaranty.  Neither did
“superior orders” condone the omission for they could not in any case
be superior to the Constitution.

We do not find that the importance of the motorcycle in the
prosecution of the criminal cases excused its seizure without a warrant.  The authorities had enough time to comply
with the required procedure but they did not do so, preferring the
unconstitutional shortcut.  The crime was
committed on March 17, 1989,
and the motorcycle was seized only on March
19, 1989, or two days later. 
During that period, the private respondent had all the opportunity to
apply for a search warrant and
establish probable cause in accordance with the Bill of Rights and the Rules of
Court.  He did not.

The following observation in Alih v.
Castro^[3] is an appropriate reminder:

The respondents cannot even plead the urgency of the raid because
it was in fact not urgent.  They knew
where the petitioners were.  They had
every opportunity to get a search warrant before making the raid.  If they were worried that the weapons inside
the compound would be spirited away, they could have surrounded the premises in the meantime, as a preventive measure.  There was absolutely no reason at all why
they should disregard the orderly processes required by the Constitution and
instead insist on arbitrarily forcing their way into the petitioner’s premises
with all the menace of a military invasion.

x x
x

When the respondents could have easily obtained a search warrant
from any of the TEN civil courts then open and functioning in Zamboanga City, they instead simply barged into the
beleaguered premises on the verbal order of their superior officers.  One cannot just force his way into any man’s
house on the illegal orders of a superior, however lofty his rank.  Indeed, even the humblest hovel is protected
from official intrusion because of the ancient rule, revered in all free
regimes, that a man’s house is his castle.

The mere mobility of the motorcycle did not make the search
warrant redundant for it is not denied that the vehicle remained with the
petitioner until it was forcibly taken from him.  The fear that it would be dismantled or
hidden was mere speculation that was not borne out by the facts.  The extraordinary events cited in People v.
Court of First Instance of Rizal^[4] are not present in the case now
before us.  The necessity for the
immediate seizure of the motorcycle without the prior obtention
of a warrant has not been established.

The private respondent himself emphasizes that the petitioner had
promised in the morning of March 19,
1989, to present the motorcycle in case it was needed during the
investigation of the killings.^[5]
There was no reason to fear that it would be concealed by the petitioner, who
presumably was under police surveillance at the time as one of the suspected
killers.  He could not have had that much
opportunity to hide the vehicle even if he wanted to.

The private respondent maintains that by the petitioner’s,
promise, he effectively waived the right to a search warrant and so can no
longer complain that the motorcycle had been invalidly seized.  There was no such waiver.  The petitioner merely agreed to cooperate
with the investigators and to produce the vehicle when needed, but he did not
agree to have it impounded.  The record
shows that he expressed reservations when this was suggested and said he needed
the motorcycle for his official duties as a member
of the Sangguniang Panlalawigan
and in his private business.^[6]
At any rate, it has been shown that he was unwilling to surrender it at the time
it was taken without warrant, and that made the taking unlawful.

In Roan v. Gonzales,^[7] the Court said:

It is true that there are certain instances when a search may be validly made without
warrant and articles may be taken validly
as a result of that search.  For example, a warrantless
search may be made incidental to a lawful arrest, as when the person being arrested
is frisked for weapons he may otherwise be able to use against the
arresting officer.  Motor cars may be
inspected at borders to prevent smuggling of aliens and contraband and even in
the interior upon a showing of
probable cause.  Vessels and aircraft are
also traditionally removed from the operation of the rule because of their
mobility and their relative ease in fleeing the state’s jurisdiction.  The individual may knowingly agree to be
searched or waive objections to an illegal search.  And it has also been held that prohibited
articles may be taken without warrant if they are open to eye and hand and the
peace officer comes upon them inadvertently.

The case at bar does not come under any of the above specified
exceptions.  The warrantless
seizure of the motorcycle was unquestionably violative
of “the right to be let alone” by the authorities as guaranteed
by the Constitution.  The vehicle cannot
even be detained on the ground that it is a prohibited article the mere possession of
which is unlawful.

In dismissing Civil Case No. 3878, the respondent judge said he
had no jurisdiction over the motorcycle because it was in custodia
legis and only the judge trying the criminal
cases against the petitioner and his co-accused could order its release.  He cited the general doctrine that:

Property seized in enforcing criminal laws is in the custody of the
law and cannot be replevied, until such custody is
ended.^[8]

It is true that
property held as
evidence in a criminal case cannot be replevied.  But the rule applies only where the property
is lawfully held, that is, seized
in accordance with the rule against warrantless
searches and seizures or its accepted exceptions.  Property subject of litigation is not by that fact alone in custodia legis.^[9]
As the Court said in Tamisin v. Odejar,^[10] “A thing is in custodia legis when
it is shown that it has been and is subjected to the official custody of a
judicial executive officer in pursuance of his execution of a legal writ.”
Only when property is lawfully taken by virtue of legal process is it
considered in the custody of the law, and not otherwise.^[11]

The circumstance that Judge Fernandez ordered the motorcycle to
be deposited with the clerk of court on motion of the petitioner did not place
the vehicle in custodia legis.  The respondent judge had no authority over it
because it had not been lawfully seized nor had it been voluntarily surrendered
to the court by the petitioner.  The
private respondent observed in his comment that “it is only when the
exhibits are offered in evidence and admitted by the court that they are
submitted to the custody of the Court, and, before that, “they are usually
in the possession of the prosecution.” Even he agrees therefore that the
motorcycle is not in custodia legis.

At that, the vehicle in the case at bar is not admissible as an exhibit
even if offered as such because it is “the fruit of the poisonous
tree.” Under Article III, Sec. 3(2) “any evidence obtained in
violation” of the rule against unreasonable searches and seizure
“shall be inadmissible for any purpose in any proceeding.”

Our finding is that the action to recover the motorcycle in the
Regional Trial Court of Masbate will not constitute
interference with the processes of the Regional Trial Court of Makati and that, consequently, the complaint should not
have been dismissed by the respondent judge.

The Judiciary is as anxious as the rest of the government
that crime be prevented and, if committed, redressed.  There is no question that the person who
violates the law deserves to be punished to the full extent that the attendant
circumstances will allow.  But the
prosecution of the suspected criminal cannot be done with high-handedness or
prejudgment, in disregard of the very laws we are supposed to uphold.  Zeal in the pursuit of criminals cannot
ennoble the use of arbitrary methods that the Constitution itself abhors.

WHEREFORE, the order of the respondent judge dated October 12, 1990, is SET ASIDE and
Civil Case No. 3878 is REINSTATED for further proceedings.  No costs.

SO ORDERED.

Narvasa, (Chairman), Griño-Aquino, and Medialdea, JJ., concur.

Gancayco, J., on leave.

^[1] Rollo, p. 67.

^[2] Constitutional Limitations.

^[3] 151 SCRA 279.

^[4] 101 SCRA 86.

^[5] Rollo, p. 60.

^[6] Ibid.

^[7] 145 SCRA 687.

^[8] 77 C.J.S. 28.

^[9] Auyong Hian vs.
Court of Tax Appeals, 59 SCRA 110.

^[10] 108 Phil. 560.

^[11] Auyong Hian
vs. Court of Tax Appeals, supra.