UNIVERSITY OF SAN CARLOS

SCHOOL OF LAW AND GOVERNANCE

Law Bldg, Pelaez St.
Cebu City 6000

In partial fulfillment of the requirements in Constitutional Law II:

Notes for Coursework 1:

Arrests, Searches, and Seizures

Submitted by:

Gregorio, Arwella Grace

Gonzales, Judith
Hines, Conner Shane William
Honato, Paul Wilfred
Lagas, Maria Resper

Submitted to:

Atty. Mark Lawrence C. Badayos

Course Instructor

28 March 2020

ARRESTS, SEARCHES, AND SEIZURES
PART I: BASIS OF THE RIGHT AND SCOPE OF
PROTECTION
CONCEPT
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.
[Art. III, Sec. 2, 1987 Philippine Constitution]
CASE LAW
Morfe v. Matuc, G.R. No. L-20387, January 31, 1968.
FACTS:
One of the specific provisions of the Anti-Graft and Corrupt
Practices Act of 1960 is that every public officer, either
within thirty (30) days after its approval or after his
assumption of office “and within the month of January of
every other year thereafter”, as well as upon the
termination of his position, shall prepare and file with the
head of the office to which he belongs, “a true detailed and
sworn statement of assets and liabilities, including a
statement of the amounts and sources of his income, the
amounts of his personal and family expenses and the
amount of income taxes paid for the next preceding
calendar: . . .”
PLAINTIFF’S ARGUMENTS:
Plaintiff Morfe, a judge of a CFI, contends that the
periodical submission “within the month of January of
every other year thereafter” of their sworn statement of
assets and liabilities (SAL) is violative of due process as an
oppressive exercise of police power and as an unlawful
invasion of the constitutional right to privacy implicit on
the ban against unreasonable search and seizure construed
together with the prohibition against self-incrimination.
THEN-EXECUTIVE SECRETARY AND SECRETARY OF
JUSTICE’S ARGUMENTS:
When a government official, like plaintiff, accepts a public
position, he is deemed to have voluntarily assumed the
obligation to give information about his personal affair, not
Page 1 of 31
only at the time of his assumption of office but during the
time he continues to discharge public trust. The private life
of an employee cannot be segregated from his public life.
The provision of law in question cannot be attacked on the
ground that it impairs plaintiff's normal and legitimate
enjoyment of his life and liberty because said provision
merely seeks to adopt a reasonable measure of insuring
the interest or general welfare in honest and clean public
service and is therefore a legitimate exercise of the police
power.
SUPREME COURT’S DISCUSSION:
Nothing can be clearer therefore than that the Anti-Graft
Act of 1960 like the earlier statute was precisely aimed at
curtailing and minimizing the opportunities for official
corruption and maintaining a standard of honesty in the
public service. It is intended to further promote morality in
public administration. A public office must indeed be a
public trust.
What is under consideration is a statute enacted under the
police power of the state to promote morality in public
service necessarily limited in scope to officialdom.
THE RIGHT TO BE LET ALONE: THE MOST
COMPREHENSIVE OF RIGHTS
Justice Douglas: "Liberty in the constitutional
sense must mean more than freedom from
unlawful governmental restraint; it must include
privacy as well, if it is to be a repository of
freedom. The right to be let alone is indeed the
beginning of all freedom." As a matter of fact,
this right to be let alone is, to quote from Mr.
Justice Brandeis "the most comprehensive of
rights and the right most valued by civilized
men."
The "right to be left alone" extends not only to
the privacy of one's home but also to his office or
business establishment, including the papers and
effects that may be found there. In one case, it
was held to be available to a person in the
seclusion of a glass-paneled telephone booth1.
"Even a guest may expect the shelter of the
rooftree he is under," said Justice Frankfurter,
"against criminal intrusion."
1 Katz v. U.S., 389 U.S. 347.
The concept of liberty would be emasculated if it does not
likewise compel respect for his personality as a unique
individual whose claim to privacy and interference
demands respect. As Laski so very aptly stated: "Man is
one among many, obstinately refusing reduction to unity.
His separateness, his isolation, are indefeasible; indeed,
they are so fundamental that they are the basis on which
his civic obligations are built. He cannot abandon the
consequences of his isolation, which are, broadly speaking,
that his experience is private, and the will built out of that
experience personal to himself. If he surrenders his will to
others, he surrenders his personality. If his will is set by
the will of others, he ceases to be master of himself. I
cannot believe that a man no longer master of himself is in
any real sense free."
THE RIGHT TO PRIVACY UNDER THE 1987
CONSTITUTION
Under the 1935 Philippine Constitution, the right to
privacy are enshrined under:
Article III, Sec. 1(3). 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.
(4) The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired.
(5) The privacy of communication and correspondence shall
be inviolable except upon lawful order of the court or when
public safety and order require otherwise; among others.
Under the most recent 1987 Philippine Constitution, the
Right to Information and Communications Privacy is
recognized under Article III, Sec. 3(1), which states:
The privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or when
public safety or order requires otherwise, as prescribed by
law.
The same constitution also guarantees the freedom of
expression and speech under Article III, Sec. 4, which
states:
No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people
peaceably to assemble and petition the government for
redress of grievances.
Article III Sections 1 and 2 of the 1987 constitution also
recognizes every person’s right to physical privacy, this
states the government’s limited ability to search and/or
deprive one’s person, place and things of any unwarranted
intrusion to one’s private affairs for any reason unless
legally allowed to do so.
Sec. 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied
the equal protection of the laws.
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.
Other facets of the right to privacy are protected in various
provisions of the Article III of the 1987 Constitution are as
follows:
Sec. 6. The liberty of abode and of changing the same within
the limits prescribed by law shall not be impaired except
upon lawful order of the court. Neither shall the right to
travel be impaired except in the interest of national security,
public safety, or public health as may be provided by law.
Sec. 8. The right of the people, including those employed in
the public and private sectors, to form unions, associations,
or societies for purposes not contrary to law shall not be
abridged.
Sec. 17. No person shall be compelled to be a witness against
himself.
Even if the Morfe v. Matuc case was decided under
the operation of the 1935 Philippine Constitution,
the same case law still applies and is very much
enshrined in today’s Constitution for the
protection of our liberty.
However, with regards to the admissibility of
evidence, even if the provisions of the 1935
Constitution has been modified by the present
phraseology found in the 1987 Charter, expressly
declaring as inadmissible any evidence obtained in
violation of the constitutional prohibition against
illegal search and seizure, the constitution, in
laying down the principles of the government and
fundamental liberties of the people, does not
govern relationships between individuals2.
Moreover, it must be emphasized that the
modifications introduced in the 1987 Constitution
(re: Sec. 2, Art. III) relate to the issuance of either
a search warrant or warrant of arrest vis-a-vis the
responsibility of the judge in the issuance thereof
(See Soliven v. Makasiar, 167 SCRA 393 [1988];
Circular No. 13 [October 1, 1985] and Circular No.
12 [June 30, 1987]. The modifications introduced
deviate in no manner as to whom the restriction
or inhibition against unreasonable search and
2 People v. Marti, G.R. No. 81561, January 18, 1991.

seizure is directed against. The restraint stayed
with the State and did not shift to anyone else.
Corolarilly, alleged violations against
unreasonable search and seizure may only be
invoked against the State by an individual unjustly
traduced by the exercise of sovereign authority. To
agree that an act of a private individual in
violation of the Bill of Rights should also be
construed as an act of the State would result in
serious legal complications and an absurd
interpretation of the constitution.
Similarly, the admissibility of the evidence
procured by an individual effected through private
seizure equally applies, in pari passu, to the
alleged violation, non-governmental as it is, of
appellant's constitutional rights to privacy and
communication.
SCOPE
Natural persons
Page 3 of 31
THE CHALLENGED PROVISION DOES NOT
VIOLATE THE RIGHT TO PRIVACY
Even with due recognition of such a view, it
cannot be said that the challenged statutory
provision calls for disclosure of information
which infringes on the right of a person to
privacy. It cannot be denied that the rational
relationship such a requirement possesses with
the objective of a valid statute goes very far in
precluding assent to an objection of such
character. This is not to say that a public
officer, by virtue of a position he holds, is bereft
of constitutional protection; it is only to
emphasize that in subjecting him to such a
further compulsory revelation of his assets and
liabilities, including the statement of the
amounts and sources of income, the amounts of
personal and family expenses, and the amount
of income taxes paid for the next preceding
calendar year, there is no unconstitutional
intrusion into what otherwise would be a
private sphere.
It thus also appears clear that no violation of
the guarantee against unreasonable search and
seizure has been shown to exist by such
requirement of further periodical submission
of one's financial condition as set forth in the
Anti-Graft Act of 1960. According to the
Constitution: "No person shall be compelled to
be a witness against himself." This
constitutional provision gives the accused
immunity from any attempt by the prosecution
to make easier its task by coercing or
intimidating him to furnish the evidence
necessary to convict. He may confess, but only
if he voluntarily wills it. He may admit certain
facts but only if he freely chooses to. Or he
could remain silent, and the prosecution is
powerless to compel him to talk.
The protection is available to all persons,
including aliens, whether accused of a crime or
not3. [Qua Chee Gan v. Deportation Board]
Artificial Persons
Artificial persons are also entitled to the
guarantee but are protected to a limited extent4
[Bache and Co. Inc v. Ruiz], although they may be
required to open their books of accounts for
examination by the State in the exercise of police
and taxing powers.
NATURE
Personal
It may be invoked only by the person entitled to
it5. [Stonehill v. Diokno]
The right may be waived6 [Lopez v. Commissioner
of Customs], either expressly or impliedly 7
[People v. Malasugui, infra.], but the waiver must
be made by the person whose right is invaded,
not by one who is not duly authorized to effect
such waiver8. [People v. Damaso]
DIRECTED AGAINST THE GOVERNMENT AND
ITS AGENCIES TASKED WITH THE
ENFORCEMENT OF THE LAW
The right cannot be set up against acts
committed by private individuals. The right
applies as a restraint directed only against the
government and its agencies tasked with the
enforcement of the law. The protection cannot
extend to acts committed by private individuals
so as to bring them within the ambit of alleged
unlawful intrusion by the government9. [People v.
Marti]
CASE LAW
People v. Andre Marti, G.R. No. 81561, January 18, 1991.
FACTS:
On August 14, 1987, appellant Marti, along with his wife,
went to the booth of the "Manila Packing and Export
3 G.R. No. L-10280. September 30, 1963.
4 G.R. No. L-32409, February 27, 1971.
5 G.R. No. L-19550, June 19, 1967.
6 G.R. No. L-27968, December 3, 1975.
7 G.R. No. L-44335, July 30, 1936.
8 G.R. No. 93516, August 12, 1992.
9 G.R. No. 81561, January 18, 1991.
Forwarders" in the Pistang Pilipino Complex, Ermita,
Manila, carrying with him four (4) gift wrapped packages
to be sent to Switzerland. Anita Reyes, the proprietress and
attendant, asked the appellant if she could examine the
packages but the latter assured her that the packages
simply contained books, cigars, and gloves and were gifts
to his friend in Switzerland. Anita didn’t further insist.
However, Anita’s husband, Job Reyes, opened the boxes for
final inspection as he was following a standard operating
procedure. Upon opening the box, a peculiar odor filled the
room. He squeezed one of the bundles allegedly containing
gloves and felt dried leaves inside. Opening one of the
bundles, he pulled out a cellophane wrapper protruding
from the opening of one of the gloves. He made an opening
on one of the cellophane wrappers and took several grams
of the contents.
Job then prepared a letter reporting the shipment to the
NBI and requesting a laboratory examination of the
samples he extracted from the cellophane wrapper. He
brought the letter and a sample of appellant's shipment to
the Narcotics Section of the National Bureau of
Investigation (NBI). He was interviewed by the Chief of
Narcotics Section. Job Reyes informed the NBI that the rest
of the shipment was still in his office. Therefore, Job Reyes
and three (3) NBI agents, and a photographer, went to the
Reyes' office.
Job brought out the box in which appellant's packages
were placed and, in the presence of the NBI agents, opened
the top flaps, removed the styro-foam and took out the
cellophane wrappers from inside the gloves.
Dried marijuana leaves were found to have been contained
inside the cellophane wrappers. The boxes which the
appellant said only contain books were also opened. He
discovered that the package contained bricks or cake-like
dried marijuana leaves. The package which allegedly
contained tabacalera cigars was also opened. It turned out
that dried marijuana leaves were neatly stocked
underneath the cigars.
The appellant was then charged for violation of RA 6425,
otherwise known as the Dangerous Drugs Act.
Appellant raised the defense that the lower court erred in
admitting in evidence the illegally searched and seized
objects contained in the four parcels, among others.
APPELLANT’S ARGUMENTS:
The appellant that the evidence subject of the imputed
offense had been obtained in violation of his constitutional
rights against unreasonable search and seizure and
privacy of communication (Sec. 2 and 3, Art. III,
Constitution) and therefore argues that the same should be
held inadmissible in evidence (Sec. 3 (2), Art. III).
Sections 2 and 3, Article III of the Constitution provide:

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.
Sec. 3. (1) The privacy of communication and
correspondence shall be inviolable except upon lawful
order of the court, or when public safety or order requires
otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any purpose in
any proceeding.
ISSUE:
Whether or not an act of a private individual, allegedly in
violation of appellant's constitutional rights, be invoked
against the State?
HELD:
No, the act of a private individual, allegedly in violation of
appellant’s constitutional rights, cannot be invoked against
the State.
In a number of cases, the Court strictly adhered to the
exclusionary rule and has struck down the admissibility of
evidence obtained in violation of the constitutional
safeguard against unreasonable searches and seizures.
However, it must be noted that in all those cases adverted
to, the evidence so obtained were invariably procured by
the State acting through the medium of its law enforcers or
other authorized government agencies.
If the search is made upon the request of law enforcers, a
warrant must generally be first secured if it is to pass the
test of constitutionality. However, if the search is made at
the behest or initiative of the proprietor of a private
establishment for its own and private purposes, as in the
case at bar, and without the intervention of police
authorities, the right against unreasonable search and
seizure cannot be invoked for only the act of private
individual, not the law enforcers, is involved.
The case at bar assumes a peculiar character since the
evidence sought to be excluded was primarily discovered
and obtained by a private person, acting in a private
capacity and without the intervention and participation of
State authorities. In the absence of governmental
interference, the liberties guaranteed by the Constitution
cannot be invoked against the State.
Page 5 of 31
What constitutes a reasonable or unreasonable
search and seizure in any particular case is
purely a judicial question, determinable from a
consideration of the circumstances involved10.
[Valmonte v. De Villa]
CASE LAW
People v. Basher Bongcarawan, G.R. No. 143944, July
11, 2002.
FACTS:
The accused was charged for violation of Section 16,
Article III of RA 6425.
Evidence for the prosecution shows that on March 11,
1999, M/V Super Ferry 5, sailed from Manila to Iligan City.
At about 3:00 a.m. on March 13, 1999, the vessel was about
to dock at the port of Iligan City when its security officer,
Mark Diesmo, received a complaint from passenger Lorena
Canoy about her missing jewelry. Canoy suspected one of
her co-passengers at cabin no. 106 as the culprit. Diesmo
and four (4) other members of the vessel security force
accompanied Canoy to search for the suspect whom they
later found at the economy section. The suspect was
identified as the accused, Basher Bongcarawan.
The accused was informed of the complaint and was
invited to go back to cabin no. 106. With his consent, he
was bodily searched, but no jewelry was found. He was
then escorted by two (2) security agents back to the
economy section to get his baggage. The accused took a
Samsonite suitcase and brought this back to the cabin.
When requested by the security, the accused opened the
suitcase, revealing a brown bag and small plastic packs
containing white crystalline substance.
Suspecting the substance to be shabu, the security
personnel immediately reported the matter to the ship
captain and took pictures of the accused beside the
suitcase and its contents. At about 6:00 a.m., Lt. Robert
Patrimonio, YN Aurelio Estoque, CD2 Phoudinie Lantao
and RM3 Merchardo De Guzman of the Philippine Coast
Guard arrived and took custody of the accused and the
seized items--the Samsonite suitcase, a brown bag and
eight (8) small plastic packs of white crystalline substance.
When asked about the contraband articles, the accused
explained that he was just requested by a certain Alican
Alex Macapudi to bring the suitcase to the latters brother
in Iligan City. The accused and the seized items were later
turned over by the coast guard to the Presidential Anti-
10 G.R. No. 83988, September 29, 1989.
Organized Crime Task Force (PAOCTF). Chief Inspector
Graciano Mijares and his men brought the accused to the
PAOCTF Headquarters, while the packs of white crystalline
substance were sent to the NBI Regional Office in Cagayan
de Oro City for laboratory examination. NBI Forensic
Chemist Nicanor Cruz later confirmed the substance to be
methamphetamine hydrochloride, commonly known as
shabu, weighing 399.3266 grams.
APPELLANT’S ARGUMENTS:
The accused countered this by saying that the Samsonite
suitcase containing the methamphetamine hydrochloride
or “shabu” was forcibly opened and searched without his
consent, and hence, in violation of his constitutional right
against unreasonable search and seizure. Any evidence
acquired pursuant to such unlawful search and seizure, he
claims, is inadmissible in evidence against him.
The trial court found the appellant guilty and was
sentenced to a penalty of reclusion perpetua.
ISSUE:
Whether or not the court a quo erred in so holding that the
drug confiscated is admissible in evidence against the
accused/appellant.
HELD:
No, the court a quo did not err in so holding that the drug
confiscated is admissible in evidence against the appellant.
As held by this Court in the case of People v. Marti, in the
absence of governmental interference, liberties guaranteed
by the Constitution cannot be invoked against the State.
The constitutional proscription against unlawful searches
and seizures applies as a restraint directed only against the
government and its agencies tasked with the enforcement
of the law. Thus, it could only be invoked against the State
to whom the restraint against arbitrary and unreasonable
exercise of power is imposed.
In the case at bar, the baggage of the accused-appellant
was searched by the vessel security personnel. It was only
after they found shabu inside the suitcase that they called
the Philippine Coast Guard for assistance. The search and
seizure of the suitcase and the contraband items was
therefore carried out without government intervention,
and hence, the constitutional protection against
unreasonable search and seizure does not apply.
There is no merit in the contention of the accused-
appellant that the search and seizure performed by the
vessel security personnel should be considered as one
conducted by the police authorities for like the latter, the
former are armed and tasked to maintain peace and order.
The vessel security officer in the case at bar is a private
employee and does not discharge any governmental
function. In contrast, police officers are agents of the state
tasked with the sovereign function of enforcement of the
law. Historically and until now, it is against them and other
agents of the state that the protection against
unreasonable searches and seizures may be invoked.
WHO ARE CONSIDERED LAW ENFORCEMENT
AUTHORITIES?
CASE LAW
Del Castillo v. People, G.R. No. 185128, January 30,
2012
Facts:
Pursuant to a confidential information that Ruben Del
Castillo (petitioner) was engaged in selling shabu, police
officers, headed by SPO3 Bienvenido Masnayon, secured a
search warrant from the RTC. In the search warrant, the
place of Del Castillo’s residence was specifically designated
and described.
The same police operatives then went to Gil Tudtud St.,
Mabolo, Cebu City to serve the search warrant to
petitioner. But upon their arrival, someone shouted “raid”,
which prompted them to proceed to Del Castillo’s house
and cordon/surround it. However, before these police
operatives can implement the search warrant, Del Castillo
allegedly fled and ran to a nipa hut located 20 meters away
from Del Castillo’s residence. SPO3 Masnayon and his men
chased Del Castillo but failed to do so because they are not
familiar with the entrances and exits of the place.
Thereafter, all the police officers went back to said
residence and sought the assistance of the barangay
tanods.
In the presence of the barangay tanod, Nelson Gonzalado,
and the elder sister of petitioner named Dolly del Castillo,
Masnayon and his men searched Del Castillo’s house,
including the nipa hut where he allegedly ran for cover.
The policemen who searched the residence of the
petitioner found nothing, but one of the barangay tanods
was able to confiscate from the nipa hut several articles,
including four (4) plastic packs containing white
crystalline substance. Later, these packs were found to be
shabu after they were sent to the PNP Crime Laboratory
for examination.
On the basis of such finding, an Information for Section 16,
Article III of R.A. 6425, as amended was filed against Del
Castillo. During arraignment, with the assistance of
counsel, he pleaded not guilty. Then, trial on the merits
ensued. Eventually, the Regional Trial Court found him
guilty beyond reasonable doubt of the crime charged.
ISSUE:
Whether or not there was a violation of the petitioner’s
right against unreasonable search and seizure?
HELD:

Yes, there was a violation of the petitioner’s right against
unreasonable search and seizure and can invoke this right
against the police officers and barangay tanods.
Having been established that the assistance of the
barangay tanods was sought by the police authorities who
effected the searched warrant, the same barangay tanods
therefore acted as agents of persons in authority. Article
152 of the Revised Penal Code defines persons in
authority and agents of persons in authority as:
x x x any person directly vested with jurisdiction, whether as
an individual or as a member of some court or governmental
corporation, board or commission, shall be deemed a person
in authority. A barangay captain and a barangay chairman
shall also be deemed a person in authority.
A person who, by direct provision of law or by election or by
appointment by competent authority, is charged with the
maintenance of public order and the protection and security
of life and property, such as barrio councilman, barrio
policeman and barangay leader, and any person who
comes to the aid of persons in authority, shall be deemed
an agent of a person in authority.
The Local Government Code also contains a provision
which describes the function of a barangay tanod as an
agent of persons in authority. Section 388 of the Local
Government Code reads:
SEC. 388. Persons in Authority. - For purposes of the
Revised Penal Code, the punong barangay, sangguniang
barangay members, and members of the lupong
tagapamayapa in each barangay shall be deemed as
persons in authority in their jurisdictions, while other
barangay officials and members who may be designated by
law or ordinance and charged with the maintenance of
public order, protection and security of life and property,
or the maintenance of a desirable and balanced
environment, and any barangay member who comes to the
aid of persons in authority, shall be deemed agents of
persons in authority.
By virtue of the above provisions, the police officers, as
well as the barangay tanods in the case at bar, were acting
as agents of a person in authority during the conduct of the
search.
Thus, the search conducted was unreasonable and the
confiscated items are inadmissible in evidence.
People v. Lauga, G.R. No. 186228, March 15, 2010
FACTS:
Appellant was charged for the crime of rape of his thirteen-
year old daughter.
Page 7 of 31
When the victim’s brother knew of the incident, he, along
with the victim, went to their grandmother’s house and
told their grandmother and uncle of the incident, after
which, they sought the assistance of Moises Boy Banting.
Moises Boy Banting found appellant in his house wearing
only his underwear. He invited appellant to the police
station, to which appellant obliged. At the police outpost,
he admitted to him that he raped the victim because he
was unable to control himself.
APPELLANT’S ARGUMENTS:
Appellant believed that the charge against him was ill-
motivated because he sometimes physically abuses his
wife in front of their children after engaging in a heated
argument and beats the children as a disciplinary measure.
He also alleged that he was awakened by the members of
the "Bantay Bayan" headed by Moises Boy Banting. They
asked him to go with them to discuss some matters. He
later learned that he was under detention because the
victim charged him of rape.
Appellant argues that even if he, indeed, confessed to
Moises Boy Banting, a "bantay bayan," the confession was
inadmissible in evidence because he was not assisted by a
lawyer and there was no valid waiver of such requirement.
ISSUE:
Whether or not the confession is an admissible evidence
considering it was done before a bantay bayan.
HELD:
No, the confession is an inadmissible evidence.
In People of the Philippines v. Buendia11, the Court had the
occasion to mention the nature of a "bantay bayan," that is,
"a group of male residents living in [the] area organized for
the purpose of keeping peace in their community[,which
is] an accredited auxiliary of the x x x PNP."
Also, it may be worthy to consider that pursuant to Section
1(g) of Executive Order No. 309, as amended, a Peace and
Order Committee in each barangay shall be organized
"to serve as implementing arm of the City/Municipal
Peace and Order Council at the Barangay level."
The composition of the Committee includes, among others:
(1) the Punong Barangay as Chairman; (2) the Chairman of
the Sangguniang Kabataan; (3) a Member of the Lupon
Tagapamayapa; (4) a Barangay Tanod; and (5) at least
three (3) Members of existing Barangay-Based Anti-Crime
11 G.R. Nos. 133949-51, September 16, 1999.
or neighborhood Watch Groups or a Non-Government
Organization Representative well-known in his
community.
The Court is convinced that barangay-based volunteer
organizations in the nature of watch groups, as in the
case of the "bantay bayan," are recognized by the local
government unit to perform functions relating to the
preservation of peace and order at the barangay level.
Thus, without ruling on the legality of the actions taken by
Moises Boy Banting, and the specific scope of duties and
responsibilities delegated to a "bantay bayan," particularly
on the authority to conduct a custodial investigation, any
inquiry he makes has the color of a state-related function
and objective insofar as the entitlement of a suspect to his
constitutional rights provided for under Article III, Section
12 of the Constitution, otherwise known as the Miranda
Rights, is concerned.
Dela Cruz v. People, G.R. No. 209387, January 11, 2016.
FACTS:
Dela Cruz was an on-the-job trainee of an inter-island
vessel. At around 12:00 noon of May 11, 2007, Dela Cruz
was at a pier of the Cebu Domestic Port to go home to
Iloilo. While buying a ticket, he allegedly left his bag on the
floor with a porter. Dela Cruz then proceeded to the
entrance of the terminal and placed his bag on the x-ray
scanning machine for inspection. The operator of the x-ray
machine saw firearms inside Dela Cruz's bag.
Cutie Pie Flores was the x-ray machine operator-on-duty
on May 11, 2007. She saw the impression of what
appeared to be three (3) firearms inside Dela Cruz's bag.
Upon seeing the suspected firearms, she called the
attention of port personnel Archie Igot who was the
baggage inspector then.
Dela Cruz admitted that he owns the bag and consented to
Igot's manual inspection of the bag. Port Police Officer
Adolfo Abregana was on duty at the terminal of the Cebu
Domestic Port in Pier 1-G when his attention was called by
Igot. Igot told Officer Abregana that there were firearms in
a bag owned by Dela Cruz.
The bag was then inspected, and the following items were
found inside: three (3) revolvers; NBI clearance; seaman's
book; other personal items; and four (4) live ammunitions
placed inside the cylinder. Dela Cruz had no proper
documents for the firearms.
APPELLANT’S ARGUMENTS:
Appellant alleged that someone must have placed the
unlicensed firearms inside his bag during the period he
was away from it. He was surprised when his attention
was called by the x-ray machine operator after the
firearms were detected.
Considering the circumstances, Dela Cruz argues that there
was no voluntary waiver against warrantless search.
ISSUE:
Whether or not there was unreasonable search and
seizure.
HELD:
No, there was no unreasonable search and seizure.
With regard to searches and seizures, the standard
imposed on private persons is different from that imposed
on state agents or authorized government authorities.
The evidence obtained against the accused was not
procured by the state acting through its police officers or
authorized government agencies. The Bill of Rights does
not govern relationships between individuals; it cannot be
invoked against the acts of private individuals.
If the search is made upon the request of law enforcers, a
warrant must generally be first secured if it is to pass the
test of constitutionality. However, if the search is made at
the behest or initiative of the proprietor of a private
establishment for its own and private purposes, as in the
case at bar, and without the intervention of police
authorities, the right against unreasonable search and
seizure cannot be invoked for only the act of private
individual, not the law enforcers, is involved. In sum, the
protection against unreasonable searches and seizures
cannot be extended to acts committed by private
individuals so as to bring it within the ambit of alleged
unlawful intrusion by the government.
By virtue of People v. Marti, items seized pursuant to a
reasonable search conducted by private persons are not
covered by the exclusionary rule. To determine whether
the intrusion by the port personnel in this case was
committed by private or public persons, we revisit the
history and organizational structure of the Philippine Ports
Authority.
The Cebu Port Authority is clothed with authority by the
state to oversee the security of persons and vehicles within
its ports. While there is a distinction between port
personnel and port police officers in this case, considering
that port personnel are not necessarily law enforcers, both
should be considered agents of government under Article
III of the Constitution. The actions of port personnel during
routine security checks at ports have the color of a state-
related function.
The Cebu Port Authority is a public-benefit corporation
under the supervision of the Department of Transportation
and Communications for purposes of policy coordination.
Control of the ports was transferred to the Cebu Port

Authority on January 1, 1996, when its operations officially
began.
Thus, with port security personnel's functions having the
color of state-related functions and deemed agents of
government, Marti is inapplicable in the present case.
Nevertheless, searches pursuant to port security measures
are not unreasonable per se. The security measures of x-
ray scanning and inspection in domestic ports are akin to
routine security procedures in airports.
Port authorities were acting within their duties and
functions when it used x-ray scanning machines for
inspection of passengers' bags. When the results of the x-
ray scan revealed the existence of firearms in the bag, the
port authorities had probable cause to conduct a search of
petitioner's bag. Notably, petitioner did not contest the
results of the x-ray scan.
Persons may lose the protection of the search and seizure
clause by exposure of their persons or property to the
public in a manner reflecting a lack of subjective
expectation of privacy, which expectation society is
prepared to recognize as reasonable. Such recognition is
implicit in airport security procedures. With increased
concern over airplane hijacking and terrorism has come
increased security at the nation's airports. Passengers
attempting to board an aircraft routinely pass through
metal detectors; their carry-on baggage as well as checked
luggage are routinely subjected to x-ray scans. Should
these procedures suggest the presence of suspicious
objects, physical searches are conducted to determine
what the objects are.
PART II: AUTHORITY TO ISSUE WARRANTS
CONCEPT
Article III, Section 2 of the 1987 Constitution
makes it clear and unequivocal that only a judge
may issue a valid warrant.
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.
Page 9 of 31
[Art. III, Sec. 2, 1987 Philippine Constitution]
CASE LAW
Salazar v. Achacoso, G.R. No. 81510, March 14, 1990
FACTS:
Public respondent Administrator Tomas D. Achacoso
issued his challenged CLOSURE AND SEIZURE ORDER
NO. 1205 which led to the seizure of the documents and
paraphernalia being used or intended to be used as
the means of committing illegal recruitment of
petitioner Salazar. The POEA Director on Licensing and
Regulation issued an office order to create a team of
lawyers to implement Closure and Seizure Order No. 1205.
In the implementation, Salazar was unable to procure any
credentials showing the validity of operating Hannalie
Dance Studio hence, the POEA team confiscated assorted
costumes which were duly receipted for by Mrs. Asuncion
Maguelan and witnessed by Mrs. Flora Salazar.
ISSUE:
WON the Philippine Overseas Employment Administration
(or the Secretary of Labor) may validly issue warrants of
search and seizure (or arrest) under Article 38 of the
Labor Code?
DEFENSE’S ARGUMENTS:
Defense used P.D. No. 2018 as an argument, issued by
Marcos, giving the Labor Minister search and seizure
powers. P.D No. 2018 is etched in the Labor Code as Article
38, paragraph (c) of the Labor Code.
SECTION 38, PARAGRAPH (c) OF THE LABOR CODE
(c) The Minister of Labor and Employment or his duly
authorized representatives shall have the power to
cause the arrest and detention of such non-licensee or
non-holder of authority if after investigation it is
determined that his activities constitute a danger to
national security and public order or will lead to further
exploitation of job-seekers. The Minister shall order the
search of the office or premises and seizure of documents,
paraphernalia, properties and other implements used in
illegal recruitment activities and the closure of companies,
establishment and entities found to be engaged in the
recruitment of workers for overseas employment, without
having been licensed or authorized to do so.
SUPREME COURT’S DISCUSSION:
We reiterate that the Secretary of Labor, not being a
judge, may no longer issue search or arrest warrants.
Hence, the authorities must go through the judicial
process. To that extent, we declare Article 38, paragraph
(c), of the Labor Code, unconstitutional and of no force
and effect.
The decrees in question, it is well to note, stand as the
dying vestiges of authoritarian rule in its twilight
moments.
Exception: In deportation cases, an arrest (of an
undesirable alien) ordered by the President or his
duly authorized representatives, in order to carry out
a final decision of deportation is valid. It is valid,
however, because of the recognized supremacy of the
Executive in matters involving foreign affairs. This
exception is not applicable with the case at bar.
Republic v Sandiganbayan, G.R. Nos. 112708-09. March
29, 1996.
FACTS:
The PCGG sequestered the shares of stocks in Maranaw
Hotels and Resort Corporation held by and/or in the name
of private respondent, Sipalay Trading Corporation. The
PCGG then directed private respondents to submit for
search and seizure all bank documents which may be
relevant for the investigation being conducted by the
commission.
The Sandiganbayan ruled on the case and nullified the
sequestration order issued against SIPALAY and of the
search and seizure order issued against ALLIED on the
ground of non-compliance with constitutional
requirements.
ISSUE:
WON the Sandiganbayan’s ruling is correct.
DEFENSE’S ARGUMENTS:
PCGG invoked E.O No. 1, Section 3 which states that:
(a) To conduct investigation as may be necessary
in order to accomplish and carry out the purposes
of this order.
(b) To sequester or place or cause to be placed
under its control or possession any building or
office wherein any ill-gotten wealth or properties
may be found, and any records pertaining thereto,
in order to prevent their destruction, concealment
or disappearance which would frustrate or
hamper the investigation or otherwise prevent the
Commission from accomplishing its task.
(c) To provisionally take over in the public interest
or to prevent its disposal or dissipation, business
enterprises and properties taken over by the
government of the Marcos administration or by
entities or persons close to former President
Marcos, until the transactions leading to such
acquisition by the latter can be disposed of by the
appropriate authorities.
(d) To enjoin or restrain any actual or threatened
commission of acts by any person or entity that
may render moot and academic, or frustrate, or
otherwise make ineffectual the efforts of the
Commission to carry out its tasks under this order.
(e) To administer oaths, and issue subpoenas
requiring the attendance and testimony of
witnesses and/or the production of such books,
papers, contracts, records, statement of accounts
and other documents as may be material to the
investigation conducted by the Commission.
(f) To hold any person in direct or indirect
contempt and impose the appropriate penalties,
following the same procedures and penalties
provided in the Rules of Court.
(g) To seek and secure the assistance of any office
agency or instrumentality of the government.
(h) To promulgate such rules and regulations as
may be necessary to carry out the purposes of this
order."
Supreme COURT’S DISCUSSION: Court Agrees with
Sandiganbayan.
There can be no doubt that the order which the PCGG
issued against ALLIED typifies a search warrant.
The Court gave its own interpretation and simplified E.O.
No. 1, it said in the case of Cojuangco, Jr. v PCGG:
1. To conduct an investigation including the
preliminary investigation and prosecution of
the ill-gotten wealth cases of former President
Marcos, relatives and associates, and graft and
corruption cases assigned by the President to
it;
2. Issue sequestration orders in relation to
property claimed to be ill-gotten;
3. Issue 'freeze orders' prohibiting persons in
possession of property alleged to be ill-gotten
from transferring or otherwise disposing of
the same;
4. Issue provisional takeover orders of the said
property;
5. Administer oaths and issue subpoenas in the
conduct of investigation;
6. Hold any person in direct or indirect
contempt and impose the appropriate
penalties as provided by the rules."
It cannot be validly argued by the PCGG that its authority
to issue a search and seizure order possessing the essential
features of a search warrant is derivable from
subparagraphs (b) and (c) of Section 3 of E.O. No. 1 or from
No. 4 of the simplified enumeration in the “Cojuangco
case”.
"The question of the validity of PCGG sequestration and
freeze orders as provisional measures to collect and
conserve the assets believed to be ill-gotten wealth has

been laid to rest in BASECO v s. PCGG (150 SCRA 181)
where this Court held that such orders are not
confiscatory but only preservative in character, not
designed to effect a confiscation of, but only to
conserve properties believed to be ill-gotten wealth of
the ex-president, his family and associates, and to prevent
their concealment, dissipation, or transfer, pending the
determination of their true ownership."
The PCGG has no authority to issue the order in the first
place. Only a" judge " and " such other responsible officer
as may be authorized by law" were empowered by the
FREEDOM CONSTITUTION to do so, and the PCGG is
neither. It is not a judge, as clarified by the Court in "
Baseco, ", to wit:
It should also by now be reasonably evident from
what has thus far been said that the PCGG is not,
and was never intended to act as, judge. Its
general function is to conduct investigations in
order to collect evidence establishing
instances of 'ill-gotten wealth'; issue
sequestration, and such orders as may be
warranted by the evidence thus collected and as
may be necessary to preserve and conserve the
assets of which it takes custody and control and
prevent their disappearance, loss or dissipation;
and eventually file prosecute in the proper court
of competent jurisdiction all cases investigated by
it as may be warranted by its findings. It does not
try and decide, or hear and determine, or
adjudicate with any character of finality or
compulsion, cases involving the essential issue
of whether or not property should be forfeited
and transferred to the State because 'ill-gotten'
within the meaning of the Constitution and the
executive orders. This function is reserved to
the designated court, in this case, the
Sandiganbayan. There can therefore be no serious
regard accorded to the accusation, leveled by
BASECO, that the PCGG plays the perfidious role of
prosecutor and judge at the same time."
And the PCGG cannot be considered as " such
other responsible officer as may be authorized by
law" because Executive Order No. 1, to reiterate,
did not expressly nor impliedly grant the PCGG
the power to issue search warrants/orders.
Disini v. Secretary of Justice, G.R. No. 203335, 18
February 2014
FACTS:
The cybercrime law, Republic Act (R.A.) 10175, aims to
regulate access to and use of the cyberspace. The provision
relevant to authority to issue warrants is section 19 of the
Cybercrime Law.
ISSUE:
Page 11 of 31
WON Section 19 of the Cybercrime Law is constitutional.
SECTION 19 OF THE CYBERCRIME LAW
Section 19 empowers the Department of Justice to restrict
or block access to computer data:
Sec. 19. Restricting or Blocking Access to
Computer Data. — When a computer data is prima
facie found to be in violation of the provisions of
this Act, the DOJ shall issue an order to restrict or
block access to such computer data.
Petitioners contest Section 19 in that it sties freedom of
expression and violates the right against unreasonable
searches and seizures.
SOLICITOR GENERAL’S DEFENSE
The Solicitor General concedes that this provision may be
unconstitutional. But since laws enjoy a presumption of
constitutionality, the Court must satisfy itself that Section
19 indeed violates the freedom and right mentioned.
SUPREME COURT’S DISCUSSION:
Computer data may refer to entire programs or lines of
code, including malware, as well as les that contain texts,
images, audio, or video recordings. Without having to go
into a lengthy discussion of property rights in the digital
space, it is indisputable that computer data, produced or
created by their writers or authors may constitute
personal property. Consequently, they are protected
from unreasonable searches and seizures, whether
while stored in their personal computers or in the
service provider's systems.
Section 2, Article III of the 1987 Constitution provides that
the right to be secure in one's papers and effects against
unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable.
Section 19 of the Cybercrime Law allows the Government
to seize and place the computer data under its control and
disposition without a warrant. The Department of Justice
order cannot substitute for judicial search warrant.
The Court is therefore compelled to strike down Section
19 for being violative of the constitutional guarantees to
freedom of expression and against unreasonable
searches and seizures.
ARREST, SEARCH AND SEIZURE
PART III. REQUISITES OF A VALID WARRANT
1. The warrant must be based upon probable
cause;
2. The probable cause must be determined
personally by the judge;
3. The determination must be made after
examination under oath or affirmation of
 the complainant and the witnesses he may
produce;
4. The warrant must particularly describe the
place to be searched and the persons or
things or things to be seized.
Probable Cause
▪ Definition
- Referring to such facts and circumstance
antecedent to the issuance of warrant
that in themselves are sufficient to
induce a cautious man to rely on them
and act in pursuance in thereof; (People
v. Sy Juco, 64 Phil.667; Alvarez v. CFI,
64Phil.33)
- Consists of reasonable ground of
suspicion supported by circumstances
sufficiently strong in themselves to
warrant a cautious man in believing
accused to be committing the offense or
to be guilty of the offense; (Kwong How
v. Us, 71 F,2d 71, State ex rel Wong)
- The knowledge of facts, actual or
apparent, strong enough to justify a
reasonable man in belief that he was
lawful grounds for prosecuting
defendant in the manner complained of,
the concurrence of facts and
circumstances reasonably warranting
the belief; (You v. District Court,78 P.
2d 353)
- Such facts and circumstances 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 v.
Chief of Staff)
▪ Determination
a. Executive Determination
The executive determination of probable
cause is one made during preliminary
investigation. It is a function that
properly pertains to the public prosecutor
who is given a broad discretion to
determine whether the probable cause
exists and to charge those whom he
believes to have committed the crime as
defined by law and thus should be held for
trial.
b. Judicial Determination
The judicial determination of probable
cause is one made by the judge to
ascertain whether a warrant of arrest
should be issued against the accused. The
judge must satisfy himself that based on
the evidence submitted, there is necessity
for placing the accused under custody in
order not to frustrate the ends of justice.
Judicial Determination of Probable Cause
in Issuing a Warrant of Arrest - Section 6,
Rule 112, Rules of Court
Within 10 days from the filing of the
complaint or information, there’s a resolution
attached with supporting evidence from the
prosecutor.
The judge will personally re-evaluate the
resolution with supporting evidence. If the
evidence clearly on record clearly fails to
establish probable cause, the judge may
immediately dismiss the case.
After evaluating (4) circumstances might
happen:
1. If the judge finds probable cause, he shall
issue a warrant of arrest;
2. If the accused was already arrested
because of a warrant by the judge who did
a preliminary investigation or if the
complaint of information was filed on the
basis of Section 7 of the Rules of Court the
judge will issue a commitment order.
3. On the face of the evidence, if there is no
clear showing of a probable cause, the
judge will immediately dismiss the case.
4. If the judge doubts the existence of
probable cause, the judge may order the
prosecutor for additional evidence within
five days from notice and the issue must
be resolved by the court within 30 days
from the filing of the complaint or
information.

Judicial Determination of Probable Cause
in Issuing a Search Warrant – Section 4-6,
Rule 126, Rules of Court.
Sec 4. There must be personal determination
by the judge of a probable cause with respect
to a specific offense.
Personal determination will be made after
examination under oath or affirmation of the
complainant and witnesses he may produce.
The search warrant must specifically describe
the place to be searched and the things to be
seized which must be anywhere in the
Philippines.
Sec 5. There must be personal examination by
the judge of the complainant as well as the
witnesses he may produce.
The judge will personally examine them in the
form of searching questions and answers, in
writing and under oath, the facts known to the
complainant and witnesses.
The record must reflect attachments of the
complainant’s and witnesses’ sworn
statements with their affidavits.
Sec 6. If the judge is satisfied that there is
probable cause, he shall issue the warrant.
Preliminary Examination
A preliminary examination is a proceeding for
the purpose of determining probable cause for
the issuance of a warrant of arrest.
Preliminary Investigation
A preliminary investigation is an inquiry or
proceeding to determine whether there is
sufficient ground to engender a well-founded
belief that a crime has been committed and the
respondent is probably guilty and should be held
for trial.
People v. Desmond
i. What was the criminal charge involved
and who were complained of committing
same?
The criminal charge involved was estafa
against Timothy J. Desmond.
Page 13 of 31
ii. What was the resolution of the City
Prosecutor? Summarize n your own
words.
The State Prosecutor issued a resolution
finding a probable cause for filing estafa
against Timothy J. Desmond as the
Chairman and Chief Executive Officer of
SBMEI. Desmond misrepresented himself
by claiming he had the credit, property,
expertise, and influence for the project
while knowing that all were not true. The
goal was to lure Virginia Delos Santos-Dio
to invest in him. She invested $1,150,000
and $1,000,000 to the damage and
prejudice of her company. Dio was not
able to get her money back and, the basis
of Dio in investing was from the fraudulent
pretenses and misrepresentations given by
Desmond thereby making him liable for
estafa.
iii. In which court/branch was the
information raffled?
The information was raffled in the
Regional Trial Court of Olongapo City,
Branch 74.
iv. What were the first few motions filed by
the Appellee before the Regional Trial
Court?
Desmond filed a Motion for
Reconsideration, as well as Motion to
Withdraw Filed Information. He also filed a
Motion to Defer Further Proceedings and
Defer Issuance of Warrant of Arrest but
subsequently withdraw the same and filed,
instead, a Motion for Judicial
Determination of Probable Cause.
v. How did the RTC resolved the motion/s
filed by the Appellee?
 The RTC ruled that no probable cause exist
for the crimes against Desmond, since the
element of estafa were not all present.
First, the element of estafa which is
misrepresentation or deceit must be
emphasized that the promises allegedly
made to the complainant by the accused
that her company’s investment will
significantly increase, clearly appeared in
Subic Bay Marine Exploration, Inc.’s
business plan dated January 12, 2001. The
court cannot find any sufficient evidence
that the accused personally assured the
complainant about his so-called power,
influence and credit with the SBMA and
other financial institutions that would
supposedly insure the viability and
profitability of the project.
Second, the element of personal
misappropriation is not present. It may be
conceded that the money was utilized to
pay salaries of expatriates and staff as well
as the cost of utilities, which Dio failed to
show that the money was taken from her
companies’ investments in SBMEI. It must
be pointed out that other than
complainant’s bare allegation, there was
no document presented categorically
stating that the investment of Dio’s
companies were earmark for a particular
payment or project. Hence, when the
investment entered SBMEI’s financial
coffers, the same presumably were co-
mingled with other monies of the
corporation.
vi. Was a warrant of arrest issued by the
RTC?
The motion to issue warrant of arrest and
hold departure order as well as the prayer
for provisional remedy are necessarily
denied.
vii. Was there grave of abuse and discretion
when the RTC acted on the motions filed
by the Appellee?
There was a grave of abuse and discretion
when the RTC acted on the motions filed by
the Desmond. The City Prosecutor’s Office
filed a petition for “certiorari and
mandamus” before the Court of Appeals on
the ground of grave abuse of discretion to
which the CA upheld the RTC authority to
dismiss a criminal case if in the process of
determining probable cause for issuing a
warrant of arrest, it also finds the evidence
on record insufficient to establish probable
cause. It explained that such dismissal is an
exercise of judicial discretion sanctioned
under Section 6 (a), Rule 112 of the Revised
Rules of Criminal Procedure. Hence, this
petition to the Supreme Court.
viii. How did the Supreme Court define
probable cause and distinguish executive
determination thereof from judicial
determination? Summarize in your own
words.
The Supreme Court ruled that the
determination of probable cause may be
either executive or judiciary.
Executive determination of probable cause
is personally up to the public prosecutor to
see if there is a sufficient ground or
probable cause to file the information
during the preliminary investigation for
the issuance of a warrant of arrest.
Judicial determination of probable cause is
made by a judge based on evidence on
whether or not a warrant of arrest needs
to be issued against the accused for the
purpose of attaining justice.
ix. Is the filing of Motion for Judicial
Determination of probable cause
necessary and appropriate?
The filing of Motion for Judicial
Determination of Probable Cause is
unnecessary and inappropriate because it
will become a mere superfluity, of not
deliberate attempt to cut short the process
by asking the judge to weigh in on the
evidence without a full-blown trial.

x. Is a judge bound by the findings of the
Office of Prosecutor of the existence of
probable cause?
The judge is not bound by the findings of
the Office of Prosecutor of the existence of
probable cause.
The judge is not bound by the resolution of
the public prosecutor who conducted the
preliminary investigation and must himself
ascertain from the latter’s findings and
supporting documents whether probable
cause exist for the issuance of warrant of
arrest.
The Constitution provides that the judge
must determine personally after
examination under oath or affirmation of
the complainant and the witnesses he may
produce before issuing a warrant of arrest.
xi. What evidentiary threshold must be met
in order for a judge to dismiss an
information filed before the court?
Within ten (10) days from the filing of
complaint or information, the judge shall
personally evaluate the resolution of the
prosecutor and its supporting evidence. He
may immediately dismiss the case if the
evidence on record fails to establish
probable cause. If there is probable cause,
he shall issue a warrant of arrest, or a
commitment order if the accused had
already been arrested, pursuant to a
warrant issued by the judge who conducted
the preliminary investigation or when the
complaint or information was filed.
In case of doubt on the existence of
probable cause, the judge may order the
prosecutor to present additional evidence
within five (5) days from notice and the
issue must be resolved by the court within
thirty (30) days from the filing of the
complaint or information.
People v. Gabo
Page 15 of 31
xii. What was the criminal charge involved
and who were complained of committing
the same?
The criminal charge involved was
destructive arson against Samson Cua
Ting, alias Ding Jian Zhi, External Vice-
President; Wilson Cua Ting, Plant
Manager; Edward Ngo Yao, President of
Marketing Corporation; Willy So Tan, alias
Chen Yi Ming, Vice President for Operation;
Carol Fernan Ortega, Assistant to the
External-Vice President; and John Doe and
Peter Doe.
xiii. Who was the prosecutor and what was his
resolution?
The State Prosecutor was Carlos C.
Pormento. He issued a resolution
recommending that an information for
Destructive Arson be filed against Wilson
Ting, Edward Yao, Willy So Tan and Carol
Ortega while the case against Samson Ting
be dismissed for lack of sufficient evidence
to indict him under the charge.
As to the charge of Accessories against
herein three (3) Fire Officers, let that case
be remanded to TF-IATF for further
investigation. The resolution states that:
That on or about May 14, 2001, in the
Municipality of Bocaue, Province of
Bulacan, and within the jurisdiction of this
Honorable Court, the above-named
accused, conspiring and confederating and
mutually helping one another, acting in
common accord, did then and there,
willfully, unlawfully, and feloniously,
destroy the warehouses known as
Sanyoware Plastic Products Manufacturing
Plant and New Unitedware Marketing
Corporation, including the stocks of raw
materials and finish products, machineries
and various equipments by maliciously
burning the same for the purpose of
concealing or destroying evidence of
another violation of law, and to conceal
bankruptcy to defraud creditors and to
collect from insurance.
 xiv. In said case, in which court or branch was
the information raffled?
The Information was raffled to Branch XI,
Regional Trial Court (RTC) of Malolos Bulacan,
3rd Judicial Region. The case was docketed as
Criminal Case No. 300-47M 2002.
xv. In said case, what were the first few
motions filed by the Appellee before the
Regional Trial Court?
Prior to the arraignment of respondents
and before warrants of arrest could be
issued, respondents filed a Motion to
Conduct Hearing to Determine Probable
Cause and to Hold in Abeyance the
Issuance of Warrant of Arrest Pending
Determination of Probable Cause.
xvi. In said case, how did the RTC resolve the
motion/s filed by the Appellee? What was
its reasoning?
Accordingly, for lack of probable cause,
the instant case is DISMISSED as ordained
under Sec. 6, Rule 112 of the Revised
Rules of Criminal Procedure.
The RTC applied the equipoise rule in
dismissing the case, because of its
observation that the sworn statements
submitted by petitioner and respondents
contained contradictory positions.
xvii. In said case, was a Warrant of Arrest
issued by the RTC?
No, based on the foregoing, the RTC acted
within its jurisdiction when it dismissed
the case on lack of probable cause as the
same is sanctioned under Section 6, Rule
112 of the Rules of Court.
xviii. In said case, was it proper for the RTC to
apply the equipoise rule?
The Supreme Court ruled that the reliance
of the RTC in the equipoise rule is
misplaced as a review of previous Court
decisions would show that the position of
petitioner is in fact correct.
The equipoise rule has been generally
applied when the parties have already
concluded the presentation of their
respective evidence as shown in a
plethora of cases such as Abarquez v.
People, Tin v. People and People v. Leano.
It is only at this stage, not at any prior
time and certainly not merely after the
filing of the information, can the trial
court assess and weigh the evidence of
the parties and thereafter determine
which party has the preponderance of
evidence. If both parties fail to adduce
evidence in support of their respective
cases, an adverse decision would be
rendered against the party which has the
burden of proof.
While the use of the equipoise rule was
not proper under the circumstances of the
case at bar, the same, however, does not
equate to an abuse of discretion on the
part of the RTC, but at most, merely an
error of judgment. More importantly, this
Court finds that the RTC had in fact
complied with the requirement under the
rules of personally evaluating the
resolution of the prosecutor and its
supporting evidence and that the assailed
Order was arrived at after due
consideration of the merits thereto.
xix. What is the task of a presiding judge
when an Information is filed with the
court?
First and foremost, to determine the existence
or non-existence of probable cause for the
arrest of the accused. The purpose of the
mandate of the judge to first determine
probable cause for the arrest of the accused is
to insulate from the very start those falsely
charged with crimes from the tribulations,
expenses and anxiety of a public trial.
xx. In said case, how did the Supreme Court
define probable cause and distinguish

executive determination thereof from
judicial determination. Summarize in
your own words.
Probable cause is where a discreet and
prudent man uses common sense in
determining whether or not the accused
should be charged with the offense based
on the facts and circumstances presented
without the need of evidence.
An executive determination is made by
the investigating prosecutor in order to
determine whether or not there is
reasonable ground/probable cause that
the accused is guilty of the offense
charged at him. If there is none, then the
accused should be released and if there is
one, an information must be filed to the
Court.
On the contrast, a judicial determination
is made by a judge in ascertaining
whether or not there is a probable cause
for the issuance of a warrant of arrest.
Lacking of such will result to the dismissal
of the case.
People v Gayoso, G.R. No. 206590, 27
March 2017.
RELEVANT FACTS:
The RTC found appellant guilty beyond
reasonable doubt of illegal sale and illegal
possession of shabu. It declared that the
prosecution ably established the elements of
illegal sale and possession of shabu through the
testimonies of its witnesses who arrested
appellant after selling a sachet of the illegal drug
in a "test-buy operation" and for possessing 11
sachets of the same drug in her house after
enforcing a search warrant immediately
thereafter. Appellant had no evidence that she
had license or authority to possess the shabu.
The RTC ruled that the evidence sufficiently
established the chain of custody of the sachets of
shabu from the time they were bought from
appellant and/or seized from her house, to its
Page 17 of 31
turnover to the PDEA and submission to the PNP
Crime Laboratory for examination. The RTC
rejected appellant's defense of denial and
frameup in view of her positive identification by
eyewitnesses as the criminal offender.
From this, appellant appealed claiming that the
validity of the search warrant claiming that it
was not issued by the RTC upon determination of
probable cause. She argued that the
"confirmatory test-buy" conducted by the poseur
buyer and the confidential asset was not valid
since they forced her to engage in a drug sale.
She maintained that the shabu presented during
trial was inadmissible in evidence due to several
gaps in its chain of custody.
The Office of the Solicitor General (OSG) filed its
Brief for the Appellee praying for the affirmance
of the appealed Decision. It argued that the
evidence on which the RTC based its
determination of probable cause was sufficient
for the issuance of the search warrant. It
asserted that the "test-buy operation" was an
entrapment and not an inducement. The OSG
maintained that the shabu confiscated from
appellant was admissible in evidence since the
prosecution established the proper chain of
custody.
SUPREME COURT’S DISCUSSION:
Probable cause for a valid search warrant is
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."
The probable cause must 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."
Probable cause does not mean actual and
positive cause, nor does it import absolute
certainty. The determination of the existence of
probable cause is concerned only with the
question of whether the affiant has reasonable
grounds to believe that the accused committed
or is committing the crime charged.
Here, the records reveal that the trial court
issued the search warrant after deposing two
witnesses namely PI Barber and SPO3 Salamida.
In particular, the deposition of SPO3 Salamida
shows that he had personal knowledge of
appellant's drug pushing activities which served
as basis for the finding of probable cause for the
issuance of the search warrant. Thus, whether or
not PI Barber had personal knowledge of the
illegal drug activities committed by appellant
will not adversely affect the findings of probable
cause for the purpose of issuance of search
warrant.
PERSONAL DETERMINATION BY THE JUDGE
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.
[ Art III, Sec 2, 1987 Constitution]
The phrase “determined personally by the
judge” applies for the both the search warrant
and warrant of arrest.
VARIATIONS IN OPERATION FOR
PERSONAL DETERMINATION BY THE
JUDGE.
1.) “Rule 112, Section 6. When
warrant of arrest may issue. —
(a) By the Regional Trial Court. —
Within ten (10) days from the
filing of the complaint or
information, the judge shall
personally evaluate the
resolution of the prosecutor
and its supporting evidence. He
may immediately dismiss the
case if the evidence on record
clearly fails to establish probable
cause. If he finds probable cause,
he shall issue a warrant of arrest,
or a commitment order if the
accused has already been
arrested pursuant to a warrant
issued by the judge who
conducted the preliminary
investigation or when the
complaint or information was
filed pursuant to section 7 of this
Rule. In case of doubt on the
existence of probable cause, the
judge may order the prosecutor
to present additional evidence
within five (5) days from notice
and the issue must be resolved by
the court within thirty (30) days
from the filing of the complaint of
information.”
2.) “Rule 126, Section 4. Requisites
for issuing search warrant. — A
search warrant shall not issue
except 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 which may be anywhere in
the Philippines.”
3.) “Rule 126, Section 5.
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
the affidavits submitted.”

CASE LAWS
Soliven v. Makasiar, G.R. No. L-82585, 14
November 1988.
MAIN ISSUE:
WON the constitutional rights of Beltran were
violated when respondent RTC judge issued a
warrant for his arrest without personally
examining the complainant and the witnesses,
if any, to determine probable cause.
i. Is ‘personal determination’ synonymous
with ‘personal examination’?
No! What the Constitution underscores is
the exclusive and personal responsibility
of the issuing judge to satisfy himself the
existence of probable cause. In satisfying
himself of the existence of probable cause
for the issuance of a warrant of arrest, the
judge is not required to personally
examine the complainant and his
witnesses.
ii. Following established doctrine and
procedure, in determining probable cause
for purposes of issuing a warrant of arrest,
what must a judge do?
1. Personally evaluate the report and
the supporting documents submitted
by the fiscal regarding the existence
of probable cause and, on the basis
thereof, issue a warrant of arrest; or
2. If on the basis thereof he finds no
probable cause, he may disregard the
fiscal's report and require the
submission of supporting affidavits
of witnesses to aid him in arriving at
a conclusion as to the existence of
probable cause.
iii. What is the policy consideration underlying
the answer to the immediately preceding
question?
Sound policy dictates this procedure,
Page 19 of 31
otherwise judges would be unduly laden
with the preliminary examination and
investigation of criminal complaints instead
of concentrating on hearing and deciding
cases filed before their courts.
On June 30, 1987, the Supreme Court
unanimously adopted Circular No. 12,
setting down guidelines for the issuance of
warrants of arrest. The procedure therein
provided is reiterated and clarified in this
resolution.
Sales v. Sandiganbayan, G.R. No. 143802, 18
November 2001.
RELEVANT FACTS:
Petitioner asserts that the Information for
Murder was hastily filed and the warrant for his
arrest was improper because of an incomplete
preliminary investigation. Respondents say
otherwise.
CA ruled that Respondent Judge did not conduct
the requisite investigation prior to issuance of
the arrest warrant. The Rules require an
examination in writing under oath in the form of
searching questions and answers. The
statements of witnesses were not sworn before
him but before the Provincial Prosecutor. The
purported transcript of stenographic notes do
not bear the signature of the stenographer.
Moreover, he did not complete the preliminary
investigation. He claimed to have examined only
the witnesses of the complainant. He issued a
Resolution and forwarded the records to the
Provincial Prosecutor without giving the accused
(petitioner) an opportunity to submit counter-
affidavits and supporting documents.
On January 27, 2000, petitioner received a
notice from the Ombudsman directing him to
Ale his counter-affidavits. Considering that
petitioner had already submitted his counter-
affidavits to the Ilocos Norte Provincial
Prosecutor as far back as August 20, 1999, he
found the directive superfluous and did not
act on it.
On May 25, 2000, Graft Investigation Officer II
Cynthia V. Vivar issued a Resolution 13
recommending the filing of an Information for
Murder against petitioner and four others before
the Sandiganbayan. The recommendation was
approved by the Ombudsman on June 16, 2000.
It appears that petitioner belatedly received a
copy of the foregoing Resolution of the graft
investigation officer only on June 21, 2000, and
because he was thus effectively prevented from
seeking a reconsideration thereof, he then filed a
Motion To Defer Issuance Of Warrant Of Arrest
pending determination of probable cause dated
June 22, 2000. The motion was denied by the
Sandiganbayan.
i. What patent error was committed by the
Ombudsman?
A preliminary investigation should be
scrupulously conducted so that the
constitutional right to liberty of a potential
accused can be protected from any material
damage. It is also intended to protect the
state
from having to conduct useless and
expensive trials.
The purpose of a preliminary investigation
or a previous inquiry of some kind, before
an accused person is placed on trial, is to
secure the innocent against hasty, malicious
and oppressive prosecution and to protect
him from an open and public accusation of a
crime, from the trouble, expenses and
anxiety of a public trial.
Preliminary investigation is no less than a
municipal judge or even a regional trial
court judge. While the investigating officer,
strictly speaking, is not a "judge" by the
nature of his functions, he is and must be
considered to be a quasi-judicial officer
because a preliminary investigation is
considered a judicial proceeding.
The records show that the supposed
preliminary investigation was conducted in
installments by at least three (3) different
investigating officers, none of whom
completed the preliminary investigation.
There was not one continuous
proceeding but rather a case of passing
the buck, so to speak, the last one being the
Ombudsman hurriedly throwing the buck to
the Sandiganbayan.
It behooves a prosecutor to weigh the
evidence carefully and to deliberate thereon
to determine the existence of a prima facie
case before filing the information in court.
Anything less would be a dereliction of duty.
ii. In said case, was there proper judicial
determination of probable cause? Support
with factual predicates.
No, due to the defective reports and findings of
the Ombudsman and on the error of
Sandiganbayan to have relied purely on the
Ombudsman's certification of probable cause
given the prevailing facts of this case much
more so in the face of the latter's flawed report
and one-sided factual findings. The defects in
the findings are as follows:
1. The records show that the supposed
preliminary investigation was
conducted in installments by at least
three (3) different investigating
officers, none of whom completed the
preliminary investigation. There was
not one continuous proceeding but
rather a case of passing the buck, so
to speak, the last one being the
Ombudsman hurriedly throwing the
buck to the Sandiganbayan.
2. Second, the charge against herein
petitioner is Murder, a non-bailable
offense. The gravity of the offense
alone, not to mention the fact that the
accused is a duly-elected municipal
executive, should have merited a
deeper and more thorough preliminary
investigation. The Ombudsman,
however, did nothing of the sort and
instead swallowed hook, line and
sinker the resolution and
recommendation of Graft
Investigation Officer II Cynthia V.

Vivar, among them the finding that,
"aside from the averment of
respondent that the victim fired at him
and he was only forced to Are back, no
other evidence was adduced to
indicate that such was what
happened."
There are, however, four affidavits on
record which state in categorical terms
that it was the victim who first fired at
petitioner with his Armalite rifle and
that petitioner merely returned fire. An
Armalite rifle and empty shells were
recovered from the scene of the
incident by the PNP and impounded by
it. The Ombudsman, however,
neither called for the production of
the firearm and the empty shells, nor
did he ask for the production of the
ballistic and laboratory
examinations of the bloodstains on the
Armalite rifle despite the statement by
the Provincial Fiscal of Ilocos Norte that
these pieces of evidence were all
available.
3. There is the matter of the two (2)
different autopsies on the cadaver of
the victim, one indicating that the
victim sustained two (2) wounds only
and the other showing that the victim
had three (3) wounds. The significance
of this fact was not appreciated by the
Ombudsman who likewise glossed over
the adamant refusal of the private
respondent to subject the cadaver of
the victim to a paraffin test, despite the
claims of the accused's witnesses that
the victim fired the Armalite rifle.
Given the foregoing circumstances, the
Ombudsman for all practical purposes did an
even worse job than Judge Calvan for, by
adopting in its entirety the findings of the
investigating officer despite its obvious flaws,
he actually did nothing at all and, in effect,
threw everything to the Sandiganbayan for
evaluation.
Page 21 of 31
4. There is no dispute that the
Information was filed without first
affording petitioner-accused his right to
Ale a motion for reconsideration. The
denial thereof is tantamount to a denial
of the right itself to a preliminary
investigation. This fact alone already
renders preliminary investigation
conducted in this case incomplete.
The inevitable conclusion is that the petitioner
was not only effectively denied the
opportunity to Ale a motion for
reconsideration of the Ombudsman's Anal
resolution but also deprived of his right to a
full preliminary investigation preparatory
to the filing of the information against him.
5. It was patent error for the
Sandiganbayan to have relied purely on
the Ombudsman's certification of
probable cause given the prevailing
facts of this case much more so in the
face of the latter's flawed report and
one-sided factual findings. In the order
of procedure for criminal cases, the task
of determining probable cause for
purposes of issuing a warrant of arrest
is a responsibility which is exclusively
reserved by the Constitution to
judges.
The trial judge was chastised by the Court for
issuing a warrant of arrest without even
reviewing the records of the preliminary
investigation which were then still with the
Department of Justice. In the case at bar, it
cannot be said that the Sandiganbayan
reviewed all the records forwarded to it by the
Ombudsman considering the fact that the
preliminary investigation which was
incomplete escaped its notice.
The warrant of arrest was ordered to be
quashed and the case remanded to the
Ombudsman for completion of preliminary
investigation.
 Lim v Felix, G.R. No. 94054, 19 February 1991.
iii. May a Judge without ascertaining the facts
through his own personal determination
and relying solely on the certification or
recommendation of a prosecutor that a
probable cause exists issue a warrant of
arrest?
No! A judge may rely upon the fiscal's
certification of the existence of probable cause
and, on the basis thereof, issue a warrant of
arrest. However, the certification does not
bind the judge to come out with the
warrant of arrest.
The issuance of a warrant is not a mere
ministerial function; it calls for the exercise of
judicial discretion on the part of the issuing
magistrate. This is clear from the following
provisions of Section 6, Rule 112 of the Rules
of Court.
Warrant of arrest, when issued. — If the judge
be satisfied from the preliminary
examination conducted by him or by the
investigating officer that the offense
complained of has been committed and that
there is reasonable ground to believe that the
accused has committed it, he must issue a
warrant or order for his arrest.
Under this section, the judge must satisfy
himself of the existence of probable cause
before issuing a warrant or order of arrest.
If on the face of the information the judge finds
no probable cause, he may disregard the
fiscal's certification and require the
submission of the affidavits of witnesses to aid
him in arriving at a conclusion as to the
existence of a probable cause.
At the same time, the Judge cannot ignore the
clear words of the 1987 Constitution which
requires ". . . probable cause to be personally
determined by the judge . . .", not by any
other officer or person.
If a Judge relies solely on the certification of
the Prosecutor as in this case where all the
records of the investigation are in Masbate, he
or she has not personally determined probable
cause. The determination is made by the
Provincial Prosecutor. The constitutional
requirement has not been satisfied. The Judge
commits a grave abuse of discretion.
The records of the preliminary investigation
conducted by the Municipal Court of Masbate
and reviewed by the respondent Fiscal were
still in Masbate when the respondent Fiscal
issued the warrants of arrest against the
petitioners. There was no basis for the
respondent Judge to make his own personal
determination regarding the existence of a
probable cause for the issuance of a warrant of
arrest as mandated by the Constitution. He
could not possibly have known what
transpired in Masbate as he had nothing but a
certification.
The Judge does not have to personally examine
the complainant and his witnesses. The
Prosecutor can perform the same functions as
a commissioner for the taking of the evidence.
However, there should be a report and
necessary documents supporting the
Fiscal's bare certification. All of these
should be before the Judge.
22.
IV. In said case, how did the Supreme Court
explain the requirement of personal
determination of probable cause for
purposes of issuing a warrant of arrest?
In relation to Art. III Section 2, what the
constitution underscores is the exclusive and
personal responsibility of the issuing judge to
satisfy himself of the existence of probable cause.
Following established doctrine and procedures
he shall: (1) personally evaluate the report and
the supporting documents submitted by the
fiscal regarding the existence of probable cause
and issue a warrant of arrest or (2) if he finds no
probable cause, may require the submission of
supporting affidavits and witnesses.
The judge cannot ignore the clear words of the
constitution, which requires “probable cause to
be personally determined by the judge.” If a
judge relies solely on the certification of the
Prosecutor as in this case where all the records

of the investigation are still in Masbate, he/she
has not personally determined probable cause.
The Provincial Prosecutor makes the
determination. The Judge commits a grave abuse
of discretion.
We reiterate that in making the required
personal determination, a Judge is not precluded
from relying on the evidence earlier gathered by
responsible officers. The extent of the reliance
depends on the circumstances of each case and is
subject to the Judge's sound discretion. However,
the Judge abuses that discretion when having no
evidence before him, he issues a warrant of
arrest.
V. In Okabe v. Judge Gutierrez, why did the SC
find that the judge committed grave abuse of
discretion amounting to lack or excess of
jurisdiction?
The respondent judge committed a grave abuse
of his discretion amounting to lack or excess of
jurisdiction in finding probable cause for the
petitioner’s arrest in the absence of copies of the
affidavits of the witnesses of the private
complainant, and her reply affidavit, the counter-
affidavit of the petitioner and the evidence
adduced by the private complainant as required
by case law, and now by Section 8(a), Rule 112 of
the Revised Rules on Criminal Procedure
(Records supporting the information or
complaint). The afore-cited affidavits, more
specifically the fax message of Lorna Tanghal and
the document signed by her covering the amount
of US$1,000 are of vital importance, as they
would enable the respondent judge to properly
determine the existence or non-existence of
probable cause.
VI. In said case, how did the SC explain the
requirement of personal determination of
probable cause for purposes of issuing a
warrant of arrest?
Before the RTC judge issues a warrant of arrest
under Section 6, Rule 112 of the Rules of Court,
in relation to Section 2 Article 3 of the 1987
Constitution, the judge must make a personal
Page 23 of 31
determination of the existence or non-existence
of probable cause for the arrest of the accused.
The duty to make such determination is
personal and exclusive to the issuing judge.
He cannot abdicate his duty and rely on the
certification of the investigating prosecutor for
such certification is, by itself, ineffective.
In determining the existence or non-existence of
probable cause, the RTC judge may rely on the
findings and conclusions in the resolution of the
investigating prosecutor. However, the judge
should not rely solely on the said report. The
judge should consider not only the report of
the investigating prosecutor but also the
affidavit/affidavits and the documentary
evidence of the parties, the counter-affidavit
of the accused and his witnesses, as well as
the transcript of stenographic notes
submitted to the court upon filing the
information.
23.
I. Based on Rule 126, Sections 4 and 5 of the
Rules of Court, how must a judge comply with
the requirement of “personal determination”
of probable cause?
Sec. 4. Requisites for issuing search warrant. – A
search warrant shall not issue except 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 witness he may
produce, and particularly describing the place to
be searched and the things to be seized which
may be anywhere in the Philippines.
Sec. 5. 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 the affidavits submitted.
II. In the case of Silva v. Presiding Judge, RTC
of Negros Oriental, Br. XXXIII, why did the SC
declare Search Warrant No. 1 null and void?
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.
Sections 3 and 4, Rule 126 of the Rules of Court
provide for the requisites for the issuance of a
search warrant, to wit:
Section 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 things to be seized.
Section 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
to attach to the record their sworn statements.
III. In said case, how did the SC characterize
the questions propounded by the judge
during the deposition?
The court examined the questioned search
warrant 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 “Deposition of Witness” which was
submitted contained, for the most part,
suggestive questions answerable by merely
placing “yes” or “no” in the blanks provided.
The above disposition 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.
IV. In said case, how did the SC characterize
probable cause for purposes of issuing a
search warrant?
Here, the court cited the case of Prudente vs.
Dayrit for their discussion on probable cause:
“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
as he may produce and not based on mere
hearsay.”
The Court also used the case of Nolasco vs. Paño
where it stated that:
“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 or probable cause
upon which a warrant may issue."
V. In the case of People v. Mamaril, why did
the SC declare Search Warrant No. 99-51
invalid?
The court found that the requirement mandated
by law that the examination of the complainant
 Page 25 of 31

and his witnesses must be under oath and

reduced into writing in the form of searching
questions and answers was not complied
with, rendering the search warrant invalid.

The issuance of a search warrant is justified only

upon a finding of probable cause. In determining
the existence of probable cause, it is required
that:
1. The judge must examine the complainant and
his witnesses personally;
2. The examination must be under oath; and
3. The examination must be reduced in writing
in the form of searching questions and
answers

VI. In said what were the factual predicates

that led the SC to declare the subject warrant
invalid?

Atty. Enrico O. Castillo presented before the

court only the application for search warrant and
supporting affidavits of PO3 Alberto Santiago
and Diosdado Fernandez. Atty. Castillo could not
produce the sworn statements of the
complainant and his witnesses showing that
judge examined in the form of searching
questions and answers in writing as required by
law.

Based on the above testimony and the other

evidence on record, the prosecution failed to
prove that Executive Judge Eugenio G. Ramos put
into writing his examination of the applicant and
his witnesses in the form of searching questions
and answers before the issuance of the search
warrant. The records only show the existence of
an application for a search warrant and the
affidavits of the complainant’s witnesses.
VII. Make a table summarizing the differences making the affidavit and seeking the issuance
between the determination of probable cause of the warrant, of the existence of probable
in issuing a warrant of arrest and a search cause. Search warrants are not issued on
warrant. loose, vague or doubtful basis of fact, nor on
mere suspicion or belief.”
24.
25.
WARRANT OF SEARCH WARRANT In the cases of Corro v. Lising and People v.
ARREST Tee, the Supreme Court explained the
different purposes of the requirement of
1. The judge must 1. The judge must particularity of description in the warrants.
personally evaluate examine the complaint
What are these?
the report and the and his witnesses
supporting personally
Corro v. Lising
documents submitted A search warrant should particularly describe
by the fiscal regarding
the place to be searched and the things to be
the existence of
seized. The evident purpose and intent of this
probable cause and
requirement is to limit the things to be seized to
issue a warrant of those and only those, particularly described in
arrest the search warrant- to leave the officers of the
law with no discretion regarding what articles
2. If on the basis 2. The examination they should seize, to the end that unreasonable
thereof, he finds no must be under oath searches and seizures may not be committed –
probable cause, he (must refer to the truth that abuses may not be committed.
may require the of facts within personal
submission of knowledge of applicant Thus, an application for search warrant must
supporting affidavits or his witnesses) state with particularly the alleged subversive
and witnesses. materials published or intended to be published
by the publisher and the editor.
3. The examination 3. The examination
must be reduced in must be reduced in People v. Tee
writing in the form of writing in the form of The constitutional requirement of reasonable
searching questions searching questions and particularity of description of the things to be
and answers answers seized is primarily meant to enable the law
enforcers serving the warrant to:
Nothing much may be discussed under this
requisite, maybe, except the significance of (1) readily identify the properties to be
an oath or affirmation in examining the seized and thus prevent them from
complainant and witness. These testimonies seizing the wrong items; and0
under oath or affirmation must be within the
‘personal knowledge’ of the complainant and (2) leave said peace officers with no
the witnesses, as in the case of Cupcupin v. discretion regarding the articles to be
People, thus: seized and thus prevent unreasonable
searches and seizures.
“In determining the probable cause in the
issuance of a search warrant, the oath What the constitution seeks to avoid are search
required must refer to the truth of the facts warrants of broad or general characterization or
within the personal knowledge of the sweeping descriptions, which will authorize
applicant or his witnesses, because the police officers to undertake a fishing expedition
purpose thereof is to convince the to seize and confiscate any and all kinds of
committing magistrate, not the individual, evidence or articles relating to an offense.

26.
The case of Nolasco v. Paño, the Supreme
Court explained the invalidity of “General
Warrant.” On the other hand, the Supreme
Court also explained the invalidity of a
“Scatter-shot Warrant” in the case of
Tambasen v. People.
General Warrant (Nolasco v. Paño)
The warrant issued by respondent judge here is
in the nature of a general warrant and infringes
on the constitutional mandate requiring
particular description of the things to be seized.
The language used is so all embracing as to
include all conceivable records and equipment of
petitioner regardless of whether they are legal or
illegal.
Relevant Facts
In Nolasco v. Paño, the three petitioners were
charged for Subversion/Rebellion and/or
Conspiracy to Commit Rebellion/Subversion.
They were required by Judge Paño to comment
on the amended return, which Aguilar-Roque
did, raising the issue of the inadmissibility of any
evidence obtained pursuant to the Search
Warrant. The disputed Search warrant describes
the personalities to be seized as follows:
“Documents, papers and other records of the
Communist Party of the Philippines/New
Peoples Army and/or the National Democratic
Front, such as Minutes of the Party Meetings,
Plans of these groups, Programs, List of possible
supporters, subversive books and instructions,
manuals not otherwise available to the public,
and support money from foreign or local sources.
It is at once evident that the foregoing search
warrant authorizes the seizure of personal
properties vaguely described and not
particularized- thus of general nature.
There is absent a definite guideline to the
searching team as to what items might be
lawfully seized thus giving the officers of the law
discretion regarding what articles they should
seize as, in fact, taken also were a portable
typewriter and 2 wooden boxes.
Page 27 of 31
Scatter-shot Warrant (Tambasen v. People)
Here, the caption of Search warrant No. 365
reflects the violation of two special laws: PD No.
1866 for illegal possession of firearms and RA
No. 1700, the Anti-Subversion Law. Said Search
Warrant was therefore a “scatter-shot warrant”
and totally null and void.
Moreover, by their seizure of articles not
described in the search warrant, the police acted
beyond the parameters of their authority under
the search warrant. Section 2, Article II of the
1987 Constitution requires that a search warrant
should particularly describe the things to be
seized. The evident purpose and intent of which
is to leave the officers of the law with no
discretion regarding what articles they should
seize, to the end that unreasonable searches and
seizures may not be made and that abuses may
not be committed.
The same constitutional provision is also aimed
at preventing violations of security in person and
property and unlawful invasions of the sanctity
of the home, giving remedy against such
usurpations when attempted.
Relevant Facts:
P/Sgt. Flumar Natuel applied for the issuance of
a search warrant from the MTCC, alleging that he
received information that petitioner had
firearms and subversive documents which were
used or intended to be used for illegal purposes.
Petitioner contended that the search warrant
covered three offenses: (1) illegal possession of
armalite rifle and .45 cal. Pistol; (2) illegal
possession of hand grenade and dynamite sticks;
and (3) illegal possession of subversive
documents. He assailed the legality of the seizure
of the articles, which were not mentioned in the
warrant.
The search warrant issued herein violates
Section 3, Rule 126 of the Revised Rules of Court,
which prohibits the issuance of a search warrant
for more than one specified offense. Here, the
caption of Search warrant No. 365 reflects the
violation of two special laws: PD No. 1866 for
illegal possession of firearms and RA No. 1700,
the Anti-Subversion Law. Said Search Warrant
was therefore a “scatter-shot warrant” and
totally null and void.
27.
How particular must the description of the
items subject of the search and seizure be?
The answer to this question varies from case
to case. However, the following cases may be
inquired into for guidance: People v. Rubio v.
Kho and Judge Makalintal. Supply an answer
and a summary of relevant facts leading to
the relevant ruling
It has been held that, 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.
The law does not require that the things to be
seized must be described in precise and minute
detail as to leave no room for doubt. Otherwise,
it would be virtually be impossible for applicants
to obtain a warrant, as they would not know
exactly what kind of things they are looking for.
People v. Rubio
By virtue of the police power granted to them by
the Administrative Code, section 1434, the chief
secret service agent and a supervising agent of
the Bureau of Internal Revenue gave testimony
under oath before Judge Revilla in which they
specified the premises occupied by Jose Rubio,
which it was desired to search. The witnesses
stated that there are fraudulent books, invoices
and records in the premises.
Appellant contended that the application and the
warrant did not particularly describe the things
to be seized.
Issue: How particular must the description of
the items subject of the search and seizure
be?
Ruling: While it is true that the property to be
seized under a warrant must be particularly
described herein and no other property can be
taken thereunder, yet the description required
to be specific only in so far as the
circumstances will ordinarily allow. It has
been held that, 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.
Appellant has not shown that the agents
exceeded their powers under the warrant by
seizing property other than that described in the
warrant in question. The list of books, invoices
and records seized by officers is the best
evidence to show that they strictly obeyed the
command of their warrant by seizing those
things and only those described in the warrant.
Kho v. Judge Makalintal
NBI agents applied for the issuance of two search
warrants against Benjamin Kho after conducting
surveillance and investigation in the two houses
referred to on the basis of the information that it
was used as storage centers for unlicensed
firearms and “chop-chop” vehicles. The 2
searches yielded several high-powered firearms
with explosives and ammunition.
Petitioners claim that subject search warrants
are general warrants as the things to be seized
were not described and detailed out.
Issue: How particular must the description of
the items subject of the search and seizure
be?
Ruling: The court holds that the warrants
comply with Constitutional and statutory
requirements. The law does not require that the
things to be seized must be described in precise
and minute detail as to leave no room for doubt.
Otherwise, it would be virtually be impossible
for applicants to obtain a warrant, as they would
not know exactly what kind of things they are
looking for.
ITCAB, the NBI agents could not have been in a
position to know beforehand the exact caliber or
make of the firearms to be seized. They could not
have known the particular type of weapons
involved before seeing such weapons at close
range, which was of course impossible at the

time of the filing of the applications for subject
search warrants.
28.
Is a search warrant severable? What does it
mean to be one? The answer to this question
is found in the case of Microsoft Corporation
v. Maxicorp, Inc. Supply an answer and a
summary of relevant facts leading to the
relevant ruling.
A search warrant may be severable; the items
not sufficiently described may be cut off without
destroying the whole warrant.
Microsoft Corporation v. Maxicorp, Inc.
NBI agents filed several applications for search
warrants against Maxicorp for alleged violation
of Section 29 of PD 49 and Art. 189 of the RPC.
Judge Bayhon issued such warrants paragraph
(c) of which states:
“Sundry items such as labels, boxes, prints,
packages, wrappers, receptacles, advertisements
and other paraphernalia bearing the copyrights
and/or trademarks owned by Microsoft
Corporation.”
Maxicorp argues that the warrants issued against
it are too broad in scope and lack the specificity
required with respect to the objects to be seized.
Ruling:
The court found paragraph (c) of the search
warrants lacking in particularity. It simply calls
for the seizure of all items bearing the Microsoft
logo. Neither does it limit the seizure to products
used in copyright infringement or unfair
competition.
Still, no provision of law exists which requires
that a warrant, partially defective in specifying
some items sought to be seized yet particular
with respect to the other items, should be
nullified as a whole.
Thus, a search warrant is severable; the items
not sufficiently described may be cut off without
destroying the whole warrant.
Page 29 of 31
29.
May an item not embraced by a warrant be
seized? The answer to this question is found
in the cases of People v. Salanguit and Del
Rosario v. People. Supply an answer and a
summary of relevant facts leading to the
relevant ruling.
Only the articles particularly described in the
warrant may be seized.
People vs. Salanguit
Sr. Insp. Aguilar applied for a warrant in the RTC
to search for shabu in the residence of accused-
appellant Robert Salanguit y Ko. After showing
the search warrant to the occupants, they found
12 small heat-sealed plastic bags and a paper clip
box containing white crystalline substance, and 2
bricks of dried leaves, which appeared to be
marijuana. The trial court found accused guilty
beyond reasonable doubt.
The search warrant authorized the seizure of
methamphetamine hydrochloride or shabu but
not marijuana. However, the seizure of the latter
is being justified on the grand that it was seized
within the “plain view” of the searching party.
This is contested by accused-appellant.
Issue: May an item not embraced by a
warrant be seized?
Ruling: Under the “plain view doctrine”,
unlawful objects within the “plain view” of an
officer who has the right to be in the position to
have that view are subject to seizure and may be
presented in evidence. For this to apply there
must be:
a. Prior justification
b. Inadvertent discovery of the evidence
c. Immediate apparent illegality of the
evidence before the police
It is assumed that the police found the packets of
shabu first. Once the valid portion of the search
warrant has been executed, the “plain view
doctrine” can no longer provide any basis for
admitting the other items subsequently found.
This doctrine may not be used to extend a
general exploratory search from one object to
another until something incriminating at last
emerges.
A search incident to a lawful arrest is limited to
the person of the one arrested and the premises
within his control. The police failed to allege the
time when the marijuana was found. Its
recovery, presumably after the shabu had been
recovered, was invalid.
Del Rosario v. People
Sometime in May 1996, the police received a
report that Vicente del Rosario was in possession
of certain firearms without the necessary
licenses. P/Sr. Inspr. Adique applied for a search
warrant to enable his team to search the house of
appellant, in which the judge issued. The search
yielded a caliber .45 pistol, rifle and a revolver.
Petitioner submits that he had a license for the
.45 caliber firearm and ammunition, the other
firearms were either planted by the police or
illegally seized as they were not mentioned in the
search warrant.
Issue: May an item not embraced by a
warrant be seized?
Ruling: Section 2, Article III states that a search
and seizure must be carried out through or on
the strength of a judicial warrant, absent which
such search and seizure becomes
“unreasonable”.
The following are requisites for a search
warrant’s validity, the absence of one will cause
its downright nullification
1. It must be issued upon probable cause
2. The probable cause must be determined by
the judge himself
3. The judge must examine the complainant and
witnesses
4. The warrant issued must particularly
describe the place to be searched and
persons or things to be seized. Seizure is
limited to those items particularly described
in a valid search warrant. Evidence seized on
occasion of such an unreasonable search and
seizure is tainted and excluded for being
“fruit of a poisonous tree” – inadmissible in
evidence for any purpose.
ITCAB, the firearm was not found inadvertently
and in plain view. It was found as a result of a
meticulous search in the kitchen of petitioner’s
house. Hence, the seizure was illegal.
30.
How particular must the description of the
place/s to be searched be? The answer to this
question may be found in the following cases:
Retired SPO4 Bienvenido Laud v. People and
Paper Industries Corporation of the
Philippines v. Asuncion
Laud v. People
The Court concludes that there was compliance
with the constitutional requirement that there be
a particular description of “the place to be
searched and the persons or things to be seized.”
“A description of a place to be searched is
sufficient if the officer with the warrant can, with
reasonable effort, ascertain and identify the
place intended and distinguish it from other
places in the community. Any designation or
description known to the locality that points out
the place to the exclusion of all others, and on
inquiry, leads the officers unerringly to it,
satisfies the constitutional requirement”
The search warrant evidently complies with the
foregoing standard since it particularly describes
the place to be searched, namely, the three (3)
caves located inside the Laud Compound in
Purok 3, Brgy. Ma-a, Davao City.
Paper Industries Corporation of the
Philippines v. Asuncion
The Constitution and the Rules limit the place to
be searched only to those described in the
warrant. The requisite of particularity is related
to the probable cause requirement in that, at
least under some circumstances, the lack of a
more specific description will make it apparent
that there has not been a sufficient showing to
 Page 31 of 31

the magistrate that the described items are to be

found in a particular place.

ITCAB, the assailed search warrant failed to

describe the place with particularity. It simply
authorizes a search of “the aforementioned
premises,” but it did not specify such premises.
The warrant identifies only one place, and that is
the “Paper Industries Corporation of the
Philippines located at PICOP Compoound, Brgy,
Tabon, Bislig, Surigao del Sur. The compound,
however is made up of numerous
offices/buildings, powerplants, staff houses,
airstrip and warehouses. Obviously, the warrant
gives the police officers unbridled and thus
illegal authority to search all the structures
found inside the PICOP compound.

In People v. CA, this Court ruled that the place to

be searched cannot be changed, enlarged or
amplified by the police. Only the Judge may
properly do the particularization of the
description of the place to be searched, and only
in the warrant itself; it cannot be left to the
discretion of the police officers conducting the
search.

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