A Law Student's Corner: Cases on Search and Seizure and Arrests

Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 93828 December 11, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SANTIAGO EVARISTO and NOLI CARILLO, accused-appellants.

PADILLA, J.:

This is an appeal from the decision of the Regional Trial Court of Trece Martires, Cavite, * in Criminal Case No. NC-267, entitled "People of the Philippines v. Santiago Evaristo and Noli Carillo," finding the accused guilty of illegal possession of firearms in violation of Presidential Decree No. 1866 and accordingly sentencing them to the penalty of life imprisonment.

The information indicting the accused-appellants (hereinafter referred to as the appellants) reads:

The undersigned Assistant Provincial Fiscal accuses SANTIAGO EVARISTO AND NOLI CARILLO of the crime of VIOLATION of P.D. 1866, committed as follows:

That on or about the 23rd. day of August 1988, in the Municipality of Mendez, Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named accused being private persons not authorized by law did then and there, willfully, unlawfully and feloniously manufacture, repair and kept (sic) in their possession, custody and control one (1) caliber 38 revolver (paltik) with two live ammunition and one (1) empty shell of said caliber, two (2) 12 gauge home made shot guns, one (1) caliber 22 revolver (sumpak) and two (2) vise grips and one (1) plier use (sic) in the manufacture and repair of said firearms without any permit or license from competent (sic) authority.

CONTRATRY (sic) TO LAW.

Cavite City, August 30, 1988. ¹

Appellants having entered a plead of not guilty, trial thereupon commenced, with the prosecution and the defense presenting their respective witnesses and evidence to support their divergent versions of the events leading to the arrest of the appellants.

A careful review of the records and the testimony of the prosecution witnesses, Sgt. Eladio Romeroso and CIC Edgardo Vallarta of the Philippine Constabulary, indicates that on the day in question, a contingent composed of Romeroso and Vallarta, together with a Sgt. Daniel Maligaya, also of the Philippine Constabulary, and two (2) members of the Integrated National Police, were on routine patrol duty in Barangay III, Mendez, Cavite. At or about 5:50 in the afternoon, successive bursts of gunfire were heard in the vicinity. Proceeding to the approximate source of the same, they came upon one Barequiel Rosillo who was firing a gun into the air.

Seeing the patrol, Rosillo ran to the nearby house of appellant Evaristo prompting the lawmen to pursue him. Upon approaching the immediate perimeter of the house, specifically a cement pavement or porch leading to the same, the patrol chanced upon the slightly inebriated appellants, Evaristo and Carillo. Inquiring as to the whereabouts of Rosillo, the police patrol members were told that he had already escaped through a window of the house. Sgt. Vallarta immediately observed a noticeable bulge around the waist of Carillo who, upon being frisked, admitted the same to be a .38 revolver. After ascertaining that Carillo was neither a member of the military nor had a valid license to possess the said firearm, the gun was confiscated and Carillo invited for questioning.

As the patrol was still in pursuit of Rosillo, Sgt. Romeroso sought Evaristo's permission to scour through the house, which was granted. In the sala, he found, not Rosillo, but a number of firearms and paraphernalia supposedly used in the repair and manufacture of firearms, all of which, thereafter, became the basis for the present indictment against Evaristo.

For their part, the appellants dispute the above narration of the events in question, alleging that they were forcibly taken into custody by the police officers and even subjected to physical and mental indignities. They denied ownership or knowledge of any of the firearms presented in evidence, contending that these were purposely planted in their possession by the prosecution witnesses and other police authorities.

After evaluation of all the evidence, the trial court rendered the now-assailed decision dated 18 April 1990, the dispositive portion of which reads:

Wherefore, for having possessed firearms in violation of P.D. No. 1866, accused Santiago Evaristo and Noli Carillo are hereby sentenced to serve the penalty provided for under Sec. 1 thereof. The full period of their preventive imprisonment shall be deducted from the aforementioned penalty.

With costs de oficio.

SO ORDERED. ²

Hence, this petition, assigning the following as errors of the trial court:

1. The lower court gravely erred in admitting Exhibits "B" to "F" in evidence considering that those are illegally seized evidence;

2. The lower court gravely erred in finding that said illegally seized evidence are firearms as contemplated in Presidential Decree No. 1866; and

3. The lower court gravely erred in giving credence to the arresting officer's testimonies which are patently contradictory and half truths (sic) testimonies. ³

First, on the issue of illegal search. The pertinent rule on the matter is Article III of the Constitution, the relevant portion of which provides:

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

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

It is to be noted that what the above constitutional provisions prohibit are unreasonable searches and seizures. For a search to be reasonable under the law, there must, as a rule, be a search warrant validly issued by an appropriate judicial officer. Yet, the rule that searches and seizures must be supported by a valid search warrant is not an absolute and inflexible rule, for jurisprudence has recognized several exceptions to the search warrant requirement. Among
these exceptions is the seizure of evidence in plain view, adopted by this jurisdiction from the pronouncements of the United States Supreme Court in Harris vs. U.S.⁴ and Coolidge vs. New Hampshire. ⁵ Thus, it is recognized that objects inadvertently falling in 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 introduced in evidence. ⁶

The records in this case show that Sgt. Romerosa was granted permission by the appellant Evaristo to enter his house. The officer's purpose was to apprehend Rosillo whom he saw had sought refuge therein. Therefore, it is clear that the search for firearms was not Romerosa's purpose in entering the house, thereby rendering his discovery of the subject firearms as inadvertent and even accidental.

With respect to the firearms seized from the appellant Carillo, the Court sustains the validly of the firearm's seizure and admissibility in evidence, based on the rule on authorized warrantless arrests. Section 5, Rule 113 of the 1985 Rules on Criminal Procedure provides:

Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

For purposes of the present case, the second circumstance by which a warrantless arrest may be undertaken is applicable. For, as disclosed by the records, the peace officers, while on patrol, heard bursts of gunfire and this proceeded to investigate the matter. This incident may well be within the "offense" envisioned by par. 5 (b) of Rule 113, Rules of Court. As the Court held in People of the Philippines v. Sucro, ⁷ "an offense is committed in the presence or within the view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or HEARS THE DISTURBANCES CREATED THEREBY AND PROCEEDS AT ONCE TO THE SCENE THEREOF."⁸

The next inquiry is addressed to the existence of personal knowledge on the part of the peace officer of facts pointing to the person to be arrested as the perpetrator of the offense. Again, reference to the records resolves said query. Giving chase to Rosillo, the peace officers came upon the two (2) appellants who were then asked concerning Rosillo's whereabouts. At that point, Sgt. Vallarta discerned the bulge on the waist of Carillo. This visual observation along with the earlier report of gunfire, as well as the peace officer's professional instincts, are more than sufficient to pass the test of the Rules. Consequently, under the facts, the firearm taken from Carillo can be said to have been seized incidental to a lawful and valid arrest.

The next area to be addressed is the allegation of the appellants that the statute's coverage does not extend to firearms that are not functional or serviceable. The Court does not agree.

Section 1 of P.D. No. 1866 penalizes "any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearms, PART OF FIREARM, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition." ⁹ It is clear that the law makes no distinction as to serviceable or functional firearms. Indeed, the possession of even a part of a firearm is sufficient to come within the prohibitive ambit of the statute. Ubi lex non distinguit nec nos distinguere debemus.

Lastly, the appellants challenge the veracity of the testimonies of the prosecution witnesses, maintaining that these were inconsistent with each other, thereby giving rise to the conclusion that the entire incident was a contrivance on their part. Specifically, they point to the apparent conflict in the statement of the prosecution witnesses that there were only three (3) individuals in the vicinity (aside from the peace officers) as opposed to the testimony of another peace officer, testifying as a hostile witness, that aside from the appellants, and Rosillo, there were also other people in the vicinity, such as Evaristo's mother, brother and other farmers.

The Court sees no such conflict. A recourse to the trial court proceedings easily shows that the two (2) prosecution witnesses, Sgt. Romerosa and CIC Vallarta, testified in a straightforward and candid manner, categorically identifying the appellants as the two (2) individuals they had apprehended and clearly narrating the circumstances of such apprehension. The defense has given no possible reason or motivation for these peace officers to make false accusations against the appellants. Absent the presentation of such defense evidence, the testimony of the peace officers should deserve full credence.

WHEREFORE, the judgment of the trial court of Trece Martires, Cavite in Criminal Case No. NC-267 finding the accused Santiago Evaristo and Noel Carillo guilty beyond reasonable doubt for Illegal Possession of Firearms as defined in Presidential Decree No. 1866, is hereby AFFIRMED.

The Court orders the forfeiture of the firearms and other incidental paraphernalia found in the possession of the appellants, in favor of the Philippine National Police (PNP) to be disposed of in accordance with law.

No pronouncement as to costs.

SO ORDERED.

Griño-Aquino and Bellosillo, JJ., concur

Separate Opinion

CRUZ, J., concurring:

I concur insofar as the ponencia holds that there was a valid seizure of the firearms and paraphernalia found in Evaristo's house because, first, he agreed to its search and, second, the said prohibited articles were in plain view and open to eye and hand. But I must express my reservations on the conclusion that the bulge in Carillo's waist provided the probable cause that justified the warrantless search of his person and the seizure from him of the paltik.

This case is similar to People v. Malmstedt, 198 SCRA 401, where I also dissented. As I did there, I will here also observe that the search does not come under any of the three situations enumerated under Rule 113, Section 5, of the Rules of Court, where a warrantless arrest and search may be made. Paragraph (a) and (c) are clearly not inapplicable. And neither is Par. (b) because although it may be conceded that a crime had just been committed, the arresting officers had no personal knowledge that Evaristo had committed it. In fact, they were pursuing Rosillo, whom they actually saw firing a gun in the air, and not Carillo, whose assistance they even sought. The circumstance that the search resulted in the discovery of the unlicensed firearm did not and could not retroactively validate the warrantless search for it was clearly void ab initio. The seized pistol is the fruit of the poisonous tree and should not have been used in evidence against Rosillo.

Separate Opinions

CRUZ, J., concurring:

Footnotes

* Presided over by Hon. Enrique M. Almario.

1 Rollo, p. 4.

2 Rollo, pp. 21-22.

3 Rollo, Appellant's Brief, p. 55.

4 390 U.S. 324.

5 403 U.S. 443.

6 Regalado, Remedial Law Compendium, Vol. 2, 1989 Edition, p. 427.

7 G.R. No. 93239, 18 March 1991, 195 SCRA 388.

8 Ibid., citing U.S. vs. Fortaleza, 12 Phil. 472 and U.S. vs. Samonte, 16 Phil. 516.

9 Emphasis (underscoring and capitals) supplied.

SECOND DIVISION

[G.R. No. 126859. September 4, 2001]

YOUSEF AL-GHOUL, ISAM MOHAMMAD ABDULHADI, WAIL RASHID AL-KHATIB, NABEEL NASSER AL-RIYAMI, ASHRAF HASSAM AL-YAZORI, AND MOHAMMAD ABUSHENDI, petitioners, vs. COURT OF APPEALS AND THE PEOPLE OF THE PHILIPPINES, respondents.

D E C I S I O N

QUISUMBING, J.:Petitioners assail the decision[i][1] dated September 30, 1996, of the Court of Appeals, which affirmed the orders of the Regional Trial Court of Kalookan City, Branch 123, thereby dismissing petitioners’ special civil action for certiorari.[ii][2]The facts leading to the present petition under Rule 65 are as follows:

On March 31, 1995, Judge Geronimo S. Mangay, presiding judge of the Regional Trial Court, National Capital Judicial Region, Branch 125, Kalookan City, issued search warrants 54-95[iii][3] and 55-95[iv][4] for the search and seizure of certain items in Apartment No. 2 at 154 Obiniana Compound, Deparo Road, Kalookan City.

On April 1, 1995, the police searched Apartment No. 8, in the same compound and found one (1) .45 caliber pistol. Found in Apartment No. 2 were:

2 M-16 rifles with 2 magazines and 20 live M-16 ammunitions

1 Bar of demolition charge

1 Caliber Pistol with no. 634 and other nos. were placed with magazine of Caliber .45 and 3 live 45 ammunitions

1 22 Caliber handgun with 5 live ammunitions in its cylinder

1 Box containing 40 pieces of .25 caliber ammunitions

2 pieces of fragmentation grenade

1 roll of detonating cord color yellow

2 big bags of ammonium nitrate suspected to be explosives substance

22 detonating cords with blasting caps

½ and ¼ pound of high explosives TNT

1 timer alarm clock

2 bags of suspected gun powder

2 small plastic bag of suspected explosive substance

1 small box of plastic bag of suspected dynamites

One weighing scale

Two (2) batteries 9 volts with blasting caps and detonating cord.[v][5]

The firearms, ammunitions, explosives and other incendiary devices seized at the apartments were acknowledged in the receipt signed by SPO2 Melanio de la Cruz.

Petitioners were charged before the Regional Trial Court of Kalookan City, Branch 123, in informations docketed as Criminal Cases Nos. C-48666-67, accusing them with illegal possession of firearms, ammunitions and explosives, pursuant to Presidential Decree No. 1866.[vi][6] Thereafter, petitioners were arrested and detained.

Petitioners filed a motion for bail on May 24, 1995, the resolution of which was held in abeyance by the RTC pending the presentation of evidence from the prosecution to determine whether or not the evidence presented is strong.[vii][7]

On February 7, 1996, at the hearing for bail, the RTC “admitted all exhibits being offered for whatever purpose that they maybe worth” after the prosecution had finished adducing its evidence despite the objection by the petitioners on the admissibility of said evidence.

On February 19, 1996, the RTC denied petitioners’ motion for bail earlier filed, giving as reasons the following:

To begin with, the accused are being charged of two criminal offenses and both offenses under Presidential Decree 1866, Sections 1 and 3 thereof prescribe the penalty of Reclusion Temporal in its maximum period to Reclusion Perpetua. Under Rule 114 of the Rules on Criminal Procedure as amended by Supreme Court Administrative Circular No. 12-94, particularly Section 7 thereof, no person charged with a capital offense or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong shall be admitted to bail regardless of the stage of the criminal prosecution.…[viii][8]

As petitioners’ action before respondent appellate court also proved futile, petitioners filed the instant petition on the ground that it had acted with grave abuse of discretion tantamount to lack or in excess of jurisdiction. They present for our consideration the following issues:

I. WHETHER OR NOT THE EVIDENCE OFFERED BY THE PROSECUTION ARE ADMISSIBLE;

II. WHETHER OR NOT ACCUSED HAVE THE RIGHT TO BAIL.[ix][9]

The issue on bail has been resolved in our resolution dated November 24, 1998, where this Court ruled:

Consequent to the enactment of RA 8294, the penalty prescribed in Section 1 and 3 of P.D. 1866 for illegal possession of firearms, ammunitions and explosives under which petitioners were charged, has now been reduced to prision mayor in its minimum period and prision mayor in its maximum period to reclusion temporal, respectively. Evidently, petitioners are now entitled to bail as a matter of right prior to their conviction by the trial court pursuant to Section 4 of SC Administrative Circular No. 12-94 …[x][10]

x x x

WHEREFORE, the petitioners’ motion is hereby GRANTED. The Temporary Restraining Order issued by this Court in the Resolution of November 20, 1996 is hereby PARTIALLY LIFTED in so far as petitioners’ pending motion for bail before the RTC of Kalookan City, Branch 123 is concerned. The trial court is hereby ordered to proceed with the hearing of the motion for bail and resolve the same with dispatch.[xi][11]

The issue that remains is whether the respondent court erred and gravely abused its discretion when it ruled that the search and seizure orders in question are valid and the objects seized admissible in evidence.

Petitioners contend that the search and seizure orders violated Sections 2 and 3 of the Bill of Rights[xii][12] as well as Section 3 of Rule 126 of the Rules of Court on Criminal Procedure[xiii][13] because the place searched and articles seized were not described with particularity. They argue that the two-witness requirement under Section 10 of Rule 126[xiv][14] was ignored when only one witness signed the receipt for the properties seized during the search, and said witness was not presented at the trial. Petitioners also aver that the presumption of regularity of the implementation of the search warrant was rebutted by the defense during cross-examination of prosecution witnesses. According to petitioners, respondent court failed to appreciate the fact that the items seized were not turned over to the police evidence custodian as required under Section 18 of the Department of Justice Circular No. 61 dated September 21, 1993. Finally, they fault the lower court’s finding that petitioners were in possession of the items allegedly confiscated from them.[xv][15]

For the State, the Office of the Solicitor General avers that the search of Apartment 2 was legal, and the items seized therein are admissible in evidence. However, the OSG agrees with petitioners that the search warrants issued by the RTC, Branch 125, Kalookan City on March 31, 1995, namely search warrant 54-95[xvi][16] and search warrant 55-95,[xvii][17] specified the place to be searched, namely Apartment No. 2, 154 Obiniana Compound, Deparo Road, Kalookan City. There was no mention of Apartment No. 8. Thus, we find that the search conducted at Apartment No. 8 clearly violated Sections 2 and 3 (2) of the Bill of Rights, in relation to Section 3 of Rule 126 of the Rules of Court.

As held in PICOP v. Asuncion,[xviii][18] the place to be searched cannot be changed, enlarged nor amplified by the police. Policemen may not be restrained from pursuing their task with vigor, but in doing so, care must be taken that constitutional and legal safeguards are not disregarded. Exclusion of unlawfully seized evidence is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures. Hence, we are constrained to declare that the search made at Apartment No. 8 is illegal and the .45 caliber pistol taken thereat is inadmissible in evidence against petitioners.

Now, in contrast, the search conducted at Apartment No. 2 could not be similarly faulted. The search warrants in question specifically mentioned Apartment No. 2. The search was done in the presence of its occupants, herein petitioners,[xix][19] in accordance with Section 7 of Rule 126, Revised Rules of Court.[xx][20]

Petitioners allege lack of particularity in the description of objects to be seized pursuant to the warrants. Hence, they also question the seizure of the following articles from Apartment No. 2, namely:

One M16 rifles, Colt AR-15 with 2 magazines and 20 rds ammo live

One (1) bar demolition charge

One (1) .45 caliber pistol numbers were defaced with magazine and with three (3) live .45 cal ammos

One (1) .22 caliber handgun with live ammos in its cylinder

One (1) box containing (40) forty pieces of .22 cal. live ammos (magnum)

Two (2) pieces fragmentation grenade

Two (2) magazines of M16 rifles with live ammos.[xxi][21]

To appreciate them fully, we quote the search warrants in question:

Search Warrant 54-95

It appearing to the satisfaction of the undersigned, after examining under oath P/Sr Insp Joel D. Pagdilao, Chief, DPIU, OADDI NPDC, Applicant and his witness SPO1 Cesar R. Rivera of District Police Intelligence Unit, Northern Police District Command with postal address c/o NPIU, NPDC, PNP, Langaray St., Kaunlaran Village, Kalookan City that a.k.a. AL, a.k.a. GHUL a.k.a. NADI, a.k.a. NABIL and several John Does of Apartment Nr. 2, Nr. 154 Obiniana Compound, Deparo Road, Kalookan City have in their possession and control the following:

1. One (1) 45 Caliber Pistol

You are hereby commanded to make an immediate search anytime of the DAY and NIGHT of the premises above-mentioned and forthwith, seize and take possession of the foregoing property, to wit:

1. One (1) .45 Caliber Pistol

and bring to this Court to be dealt with as the law may direct.[xxii][22]

Search Warrant 55-95

It appearing to the satisfaction of the undersigned after examining under oath P/Sr. Insp. Joel D. Pagdilao, Chief, DPIU, OADDI NPDC, Applicant and his witness SPO1 Cesar R. Rivera of District Police Intelligence Unit, Northern Police District Command with postal address c/o NPIU, NPDC, PNP, Langaray St., Kaunlaran Village, Kalookan City that a.k.a. AL, a.k.a. GHUL a.k.a. NADI, a.k.a. NABIL and several John Does of Apartment Nr. 2, Nr. 154 Obiniana Compound, Deparo Road, Kalookan City have in their possession and control the following:

1. One (1) 5.56 M16 Rifle with corresponding ammunitions

2. One (1) 9MM Pistol with corresponding ammunitions

3. Three (3) boxes of explosives

4. More or less ten (10) sticks of dymanites (sic)

5. More or less thirty (30) pieces of blasting caps pieces of detonating cords

You are hereby commanded to make an immediate search anytime of the DAY or NIGHT of the premises above-mentioned and forthwith seize and take possession of the foregoing properties, to wit:

1. One (1) 5.56 M16 Rifle with corresponding ammunitions

2. One (1) 9MM Pistol with corresponding ammunitions

3. Three (3) boxes of explosives

4. More or less ten (10) sticks of dymanites (sic)

5. More or less thirty (30) pieces of blasting caps pieces of detonating cords

and bring to this Court to be dealt with as the law may direct.[xxiii][23]

That the articles seized during the search of Apartment No. 2 are of the same kind and nature as those items enumerated in the search warrant above-quoted appears to us beyond cavil. The items seized from Apartment No. 2 were described with specificity in the warrants in question. The nature of the items ordered to be seized did not require, in our view, a technical description. Moreover, the law does not require that the things to be seized must be described in precise and minute details as to leave no room for doubt on the part of the searching authorities, otherwise, it would be virtually impossible for the applicants to obtain a search warrant as they would not know exactly what kind of things they are looking for.[xxiv][24] Once described, however, the articles subject of the search and seizure need not be so invariant as to require absolute concordance, in our view, between those seized and those described in the warrant. Substantial similarity of those articles described as a class or species would suffice.

In People v. Rubio, 57 Phil. 384, 389 (1932), this Court said, “While it is true that the property to be seized under a warrant must be particularly described therein and no other property can be taken thereunder, yet the description is required to be specific only in so far as the circumstances will ordinarily allow.” 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. As a corollary, however, we could not logically conclude that where the description of those goods to be seized have been expressed technically, all others of a similar nature but not bearing the exact technical descriptions could not be lawfully subject to seizure. Otherwise, the reasonable purpose of the warrant issued would be defeated by mere technicalities.

The case of Bache and Co. (Phil.), Inc. v. Ruiz, 37 SCRA 823, 835 (1971), pointed out that one of the tests to determine the particularity in the description of objects to be seized under a search warrant is when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued. A careful examination of Search Warrant Nos. 54-95[xxv][25] and 55-95[xxvi][26] shows that they were worded in such a manner that the enumerated items to be seized could bear a direct relation to the offense of violation of Section 1[xxvii][27] and 3[xxviii][28] of Presidential Decree No. 1866, as amended, penalizing illegal possession of firearms, ammunitions and explosives. What the warrants authorized was the seizure of articles proscribed by that decree, and no other.

Lastly, on this score, we note that the Court of Appeals ruled that petitioners waived their right to raise any attack on the validity of the search warrants at issue by their failure to file a motion to quash.[xxix][29] But, in conducting the search at Apartment No. 8, not just Apartment No. 2 as ordered specifically in the search warrants, the police committed a gross violation we cannot condone. Thus, we conclude that the gun seized in Apartment No. 8 cannot be used in evidence, but those articles including guns, ammunitions, and explosives seized in Apartment No. 2 are admissible in evidence.

Coming now to the two-witness requirement under Section 10, Rule 126 of the Revised Rules of Court, petitioners claim the rule was violated because only one witness signed the receipt for the properties seized. For clarity, let us reproduce the pertinent section:

SEC. 10. Receipt for the property seized.—The officer seizing property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property.

Clearly, the two-witness rule applies only in the absence of the lawful occupants of the premises searched. In the case at bar, petitioners were present when the search and seizure operation was conducted by the police at Apartment No. 2. More importantly, petitioner Nabeel Al-Riyami y Nasser admitted being an actual occupant/resident of Apartment No. 2.[xxx][30] Hence, we find here no violation of Section 10, Rule 126 of the Revised Rules of Court.

Petitioners contend that they could not be charged with violation of P.D. 1866 because the seized items were not taken actually from their possession. This contention, however, cannot prosper in the light of the settled rule that actual possession of firearms and ammunitions is not an indispensable element for prosecution under P.D. No. 1866. In People v. Dela Rosa, 284 SCRA 158, 168-169 (1998), we clarified that the kind of possession punishable under P.D. 1866 is one where the accused possessed a firearm either physically or constructively with animus possidendi or intent to possess said firearm. Whether or not the evidence would show all the elements of P.D. 1866 in this case is a different matter altogether. We shall not preempt issues properly still within the cognizance of courts below.

Likewise, whether or not the articles seized were planted by the police, as claimed by the petitioners, is a matter that must be brought before the trial court. In the same vein, petitioners’ claim that the properties seized were not turned over to the proper police custodian is a question of fact best ventilated during trial.

WHEREFORE, the petition is PARTIALLY GRANTED. The search conducted at Apartment No. 8 is hereby declared illegal and the item (.45 caliber pistol) seized therein inadmissible in evidence. However, the search at Apartment No. 2 pursuant to Search Warrant 55-95 is hereby declared valid and legal, and the articles seized from Apartment No. 2 are found admissible in evidence. Let this case be remanded to the Regional Trial Court of Kalookan City, Branch 123, for trial on the merits of Criminal Cases Nos. C-48666-67 with dispatch.

No pronouncement as to costs.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

A.M. No. RTJ-93-983 August 7, 1995

GUILLERMA DE LOS SANTOS-REYES, complainant,
vs.
JUDGE CAMILO O. MONTESA, JR., Pairing Judge, Branch 18, Regional Trial Court, Malolos, Bulacan, respondent.

PER CURIAM:

In her complaint filed on 23 March 1993, Guillerma de los Santos-Reyes charges the respondent judge with gross ignorance of law and evident dishonesty in the performance of his work in that he granted bail to the accused in Criminal Cases Nos. 487-M-91, 488-M-91, and 488-M-91 without the required petition for bail and without conducting any hearing to accord the prosecution an opportunity to establish that the evidence of guilt of the accused was strong.

In compliance with the resolution of 24 May 1993, the respondent judge filed his comment wherein he disclosed that the issue raised was the subject of G.R. Nos. 108478-79¹ pending before the Second Division of this Court.

On 22 September 1993, this Court, upon the recommendation of the Office of the Court Administrator (OCA), dismissed this case, "the issues raised . . . being sub-judice but without prejudice to its revival should the Court in G.R. Nos. 108478-79 find the orders to have been issued with grave abuse of discretion."

In the decision promulgated on 21 February 1994,² this Court dismissed G.R. Nos. 108478-79. The complainant then filed on 23 November 1994 a motion to revive this complaint.

On 23 February 1995, the respondent judge filed an Additional Comment and Observation to stress that what he did was to quash the warrant of arrest, determine probable cause on the basis of the record and documents available, order the arrest of the accused, and grant bail to those against whom the evidence of guilt was weak.

Issues having been joined and the revival of this complaint being in order, this Court required the parties to manifest whether they agree to submit this case for decision on the basis of the pleadings they have submitted. In their separate manifestations, the parties responded in the affirmative.

The antecedent facts which gave rise to the instant complaint (as well as to G.R. Nos. 108478-79) are summarized in the decision in G.R. Nos. 108478-79 as follows:

On November 4, 1990, Patrolman Celso Reyes, Bgy. Captain Pedro Panganiban and Armando Vitug were ambushed along Ipo-road, Kay-Pian, San Juan del Monte, Bulacan, resulting in the untimely death of Reyes and Panganiban. The National Bureau of Investigation conducted an inquisition of the incident and after which charged petitioners Estelita Hipolito and Alfredo Bolsico, together with Romeo Adviento, Romeo Permejo, Rolando Gozum and four (4) John Does with the crimes of murder and frustrated murder before the Municipal Trial Court of San Jose del Monte, then presided over by Judge Virginia Pagarogon.

Judge Pagarogon conducted a preliminary investigation of the witnesses and on November 14, 1990 issued an order admitting the complaint and ordering the detention of all the accused after finding that the crimes charged have been committed and there is reasonable ground to believe that the accused are probably guilty thereof. No bail was recommended.

Judge Pagarogon then forwarded the records of the cases to the Provincial Prosecutor's Office of Bulacan for appropriate action. The Investigating Prosecutor, without conducting a thorough investigation of the cases, concluded that there was no probable cause and ordered motu proprio the release of the accused from custody. So, the widow of Patrolman Reyes petitioned the Department of Justice to disqualify the Provincial Prosecutor's Office from conducting the preliminary investigation and prosecution of the cases.

In due course, the DOJ acted favorably on the petition and designated State Prosecutor Santiago Turingan to take over and handle the cases. The State Prosecutor found probable cause for murder and frustrated murder against all the accused and consequently, they were formally charged with said crimes on March 13, 1991, before the Regional Trial Court of Malolos, Bulacan, docketed as Criminal Cases No. 487-M-91, 488-M-91 and 489-M-91. No bail was recommended and the corresponding warrants of arrest were issued.

The accused were quick to learn of the filing of the informations. On the same day (March 13, 1991), they filed a "Manifestation and Motion to Defer the Issuance of Warrants of Arrest," praying for the suspension of court proceedings on the ground that they are filing a petition for review of the resolution of the State Prosecutor.

On March 21, 1991, the accused, who were not yet arrested or placed under the jurisdiction of the trial court (after their precipitate release earlier), filed a "Petition to Grant Bail" in C.C. Nos. 487-M-91 and 488-M-91 and a "Petition to Reduce Bail in C.C. No. 489-M-91.

On March 25, 1991, the trial court issued an order denying the petitions since the accused had not yet surrendered and/or apprehended and, therefore, the court has not acquired jurisdiction over their persons.

On the same day (March 25, 1991), the accused filed another petition entitled "Reinstatement of the Petition to Grant Bail in the above entitled cases and Motion to Reduce Bail Bond and Motion to Set Petition for Hearing with Manifestation to Surrender the Accused on the Hearing of this Petition."

On April 4, 1991, the trial court, apparently with a change of heart, issued an order consolidating the petitions for bail, set them for hearing on April 6, 1991, and directed the DOJ and/or the Office of the Provincial Prosecutor to forward to it the records of the preliminary investigation of the cases within ten (10) days from notice.

On April 15, 1991, petitioners filed an urgent motion to quash the warrants of arrest alleging want of probable cause.

On April 22, 1991, the accused withdrew their motion for reinstatement of their petition for bail bond and opted to pursue their motion to quash the warrants of arrest.

On May 2, 1991, the trial court quashed the warrants of arrest and set the hearing on May 15, 1991 for the purpose of determining the existence of probable cause.

On May 17, 1991, after examining the records of the cases as forwarded to him by the prosecution, the trial court found the existence of probable cause but instead of issuing the corresponding warrants of arrest, for the purpose of acquiring jurisdiction over the persons of the accused upon their apprehension or voluntary surrender, it ex mero motu granted bail to them despite the absence of (because it was previously withdrawn) a petition for bail and, worse, the lack of a hearing wherein the prosecution could have been accorded the right to present evidence showing that the evidence of guilt is strong.

On August 23, 1991, the prosecution filed an omnibus motion praying for the cancellation of the bail bonds as well as the issuance of warrants of arrest on the fundamental ground that the trial court could not legally grant bail in a capital offense without the prosecution being accorded the right to show that the evidence of guilt is strong.

On October 28, 1991, the trial court denied the prosecution's motion on the principal ground that its questioned orders had become final and executory. On December 2, 1991, the motion for reconsideration was likewise denied.

On March 3, 1992, the prosecution filed a petition for certiorari, prohibition and preliminary injunction with prayer for a temporary restraining order before respondent Court of Appeals, CA-G.R. S.P. No. 27430, assailing the following orders of the trial court: the May 17, 1991 order which granted bail to the accused; the October 28, 1991 order which denied the prosecution's omnibus motion praying for the issuance of warrants of arrest's as well as the cancellation of what it perceived to be irregularly posted bail bonds; and the December 2, 1991 order which denied the prosecution's motion for reconsideration. Upon the filing of said petition, respondent court issued the temporary restraining order.

On the other hand, petitioners filed a petition for certiorari, mandamus and prohibition before the same court, CA-G.R. S.P. No. 27472, seeking: (a) to annul the orders of the trial court resetting the hearings on different dates for being dilatory and violative of their constitutional right to a speedy trial; (b) to command the trial court to dismiss with prejudice all the criminal cases; and (c) to perpetually prohibit the prosecution of the criminal cases.

On July 31, 1992, respondent [Court of Appeals] ruled in favor of the prosecution. The dispositive portion of its consolidated decision reads:

WHEREFORE, the instant petition (SP No. 27430) is hereby granted and the questioned orders of respondent Court dated May 17, 1991, October 28, 1991, and December 2, 1991 are annulled and set aside. Accordingly, the accused herein (private respondents) are ordered arrested/committed pending the trial of their cases, without prejudice on their part to file in the proper court a petition for bail after the arrest, detention or deprivation of their liberty, wherein the prosecution is accorded the right to present evidence to prove that evidence of guilt is strong. SP No. 27472, on the other hand, is hereby DISMISSED for lack of merit, considering that the delays incurred herein were due to unavoidable circumstances and were therefore reasonable in nature.

No costs in both instances.

SO ORDERED.

Their motion for reconsideration having been denied, petitioners Hipolito, et al. filed with this Court a petition for review, docketed as G.R.
Nos. 108478-79, which, as earlier stated, was dismissed on 21 February 1994.

Respondent judge asserts that he is not administratively liable for what he did because he was merely guided by the doctrine in Lim vs. Felix,³ to the effect that the determination of probable cause for the issuance of a warrant of arrest should be personally determined by the judge. Since in these cases the issuance of the warrants of arrest was based solely on the certification of the state prosecutor, he granted the motion to quash the warrants of arrest and, considering that on the date of the hearing to determine probable cause the witnesses for the prosecution did not appear and the private prosecutor submitted the issue on the basis of the proceedings had at the preliminary investigation and the affidavits of witnesses, he formally resolved it on such basis. He further alleges that since he found the evidence purely circumstantial, except as against Romeo Permejo who was positively identified as the gunman, he believed that the evidence of guilt as against the others was not strong and, accordingly, admitted them to bail in the amount of P80,000.00 each.

The explanation of the respondent judge is wholly unacceptable for, contrary to his belief that he has shown perfect knowledge of the rules on the issuance of warrants of arrest and grant of bail, he has demonstrated either gross ignorance of the constitutional and statutory principles and settled jurisprudence thereon or gross incompetence which no claim of good faith can exculpate or even mitigate.

From the above recitals of the factual and procedural antecedents of the criminal cases before the trial court, it is obvious that the accused filed their petitions to grant bail and to reduce bail, motion to reinstate petition to grant bail and urgent motion to quash warrants of arrests before the court acquired jurisdiction over their persons either through the effective service and enforcement of the warrants of arrest or their voluntary surrender, i.e., before they were placed in the custody of the law or otherwise deprived of their liberty. Such being so, the trial court, initially, denied correctly the petition for grant of bail but subsequently disregarded law and jurisprudence when it favorably acted on the motion to reinstate the petition for grant of bail and set the motion for hearing on 6 April 1991, directing, for that purpose the Department of Justice and the Office of the Provincial Prosecutor to forward to it the records of the preliminary investigation.

In this jurisdiction it is settled that a person applying for bail should be in the custody of the law or otherwise deprived of his liberty.⁴ While it may be true that the disregard of this precept was not consummated, it was not because the respondent judge corrected himself, but because the accused withdrew their petition for the grant of bail and opted to pursue their urgent motion to quash the warrants of arrest grounded on want of probable cause. Instead of retracing his steps back to the proper judicial path, the respondent judge, still forgetting that the accused remained scot-free, not only quashed the warrants of arrest, but, thereafter motu proprio converted, in effect, the "hearing" for the determination of probable cause for the issuance of the warrant of arrest, which he set on 15 May 1991, to a hearing on the matter of admission to bail, as his order of 17 May 1991 indisputably shows. In so doing, the respondent judge had either utterly confused the proceeding to determine probable cause for the issuance of a warrant of arrest from the proceeding on a petition for admission to bail, order deliberately ignored the basic requisites for the grant of bail.

The determination of probable cause in the issuance of a warrant of arrest is mandated by Section 2, Article III of the Constitution.⁵ Probable cause for the issuance of a warrant of arrest means such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested.⁶ A hearing is not necessary therefor. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge, following the established doctrine and procedure, shall either (a) personally evaluate the report and the supporting documents submitted by the prosecutor regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest, or (b) if on the face of the information he finds no probable cause, he may disregard the prosecutor's certification and require the submission of the supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.⁷

This procedure is dictated by sound public policy; 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.⁸ At this stage of a criminal proceeding, the judge is not tasked to review in detail the evidence submitted during the preliminary investigation; it is sufficient that he personally evaluates the report and supporting documents submitted by the prosecution in determining probable cause.⁹

This judicial function does not carry with it a motu proprio review of the recommendation of the prosecutor in a capital offense that no bail shall be granted. Such a recommendation is the exclusive prerogative of the prosecutor in the exercise of his quasi-judicial function during the preliminary investigation, which is executive in nature.¹⁰ In such cases, once the court determines that probable cause exists for the issuance of a warrant of arrest, the warrant of arrest shall forthwith be issued and it is only after the accused is taken into the custody of the law and deprived of his liberty that, upon proper application for bail, the court on the basis of the evidence adduced by the prosecution at the hearing called for the purpose may, upon determination that such evidence is not strong, admit the accused to bail.¹¹

Since the accused unilaterally withdrew their petition for bail, there was then nothing to be heard or acted upon in respect thereof. Even if they did not withdraw their petition, they have no right to invoke the processes of the court since they have not been placed in the custody of the law or otherwise deprived of their liberty by reason or as a consequence of the filing of the information. For the same reason, the court had no authority to act on the petition.¹²

Even if it be conceded for the sake of argument that the application for bail was regularly filed, the respondent judge wantonly ignored the due process requirement of hearing to afford the prosecution reasonable opportunity to prove that evidence of guilt of the applicants is strong.¹³ To grant an application for bail and fix the amount thereof without such hearing duly called for the purpose of determining whether the evidence of guilt is strong constitutes ignorance or incompetence whose grossness cannot be excused by a claim of good faith or excusable negligence¹⁴ or constitutes inexcusable conduct which reflects either gross ignorance of the law or cavalier disregard of its requirements.¹⁵

At the very least, the respondent judge exhibited gross incompetence. Gross ignorance of law and incompetence are characteristics and quirks impermissible in a judge. A judge is called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules; it is imperative that he be conversant with basic legal principles.¹⁶ He should he studious of the principles of the law, ¹⁷ and he must be faithful to the law and must maintain professional competence.¹⁸

The respondent judge does not have an enviable record as a living personification of justice and the rule of law.¹⁹

In Administrative Matter No. RTJ-91-753,²⁰ for abuse of discretion, this Court censured the respondent judge for issuing an order granting bail to an accused without affording the prosecution the opportunity to present evidence to show that the evidence of guilt was strong.

In Administrative Matter No. RTJ-91-742,²¹ for gross ignorance of law and serious misconduct, the respondent judge was admonished to be more circumspect in the resolution of the cases before him and given a last warning that any form of infraction cases hereafter would be dealt with severely.

The respondent judge has indisputably failed to comply with the strict and exacting demands of the public-trust character of his office.

WHEREFORE, for gross ignorance of law or incompetence and conduct prejudicial to the best interest of the service, respondent Judge CAMILO O. MONTESA, JR., Presiding Judge of Branch 18 of the Regional Trial Court of Bulacan, is hereby ordered DISMISSED from the service with forfeiture of all benefits and with prejudice to re-employment in any branch or service of the government, including government-owned or controlled corporations. His dismissal shall take effect immediately upon his receipt of a copy of this decision which must be personally served by the Office of the Court Administrator.

Let a copy of this decision be attached to the records of the respondent with this Court.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur.

Hermosisima, Jr. J., took no part.

G.R. No. 121234 August 23, 1995
HUBERT J. P. WEBB, petitioner,
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUÑO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 274, respondents, LAURO VIZCONDE, intervenor.
G.R. No. 121245 August 23, 1995
MICHAEL A. GATCHALIAN, petitioner,
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 274, respondents.
G.R. No. 121297 August 23, 1995
ANTONIO L. LEJANO, petitioner,
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUÑO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 274, respondents.

PUNO, J.:
Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition and mandamus with application for temporary restraining order and preliminary injunction to: (1) annul and set aside the Warrants of Arrest issued against petitioners by respondent Judges Raul E. de Leon and Amelita Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents from conducting any proceeding in the aforementioned criminal case; and (3) dismiss said criminal case or include Jessica Alfaro as one of the accused therein.¹
From the records of the case, it appears that on June 19, 1994, the National Bureau of Investigation (NBI) filed with the Department of Justice a letter-complaint charging petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other persons,² with the crime of Rape with Homicide. Forthwith, the Department of Justice formed a panel of prosecutors headed by Assistant Chief State Prosecutor Jovencio R. Zuño to conduct the preliminary investigation³ of those charged with the rape and killing on June 30, 1991 of Carmela N. Vizconde;⁴ her mother Estrellita Nicolas-Vizconde,⁵ and her sister Anne Marie Jennifer⁶ in their home at Number 80 W. Vinzons, St., BF Homes, Parañaque, Metro Manila.
During the preliminary investigation, the NBI presented the following: (1) the sworn statement dated May 22, 1995 of their principal witness, Maria Jessica M. Alfaro who allegedly saw the commission of the crime;⁷ (2) the sworn statements of two (2) of the former housemaids of the Webb family in the persons of Nerissa E. Rosales and Mila S. Gaviola;⁸ (3) the sworn-statement of Carlos J. Cristobal who alleged that on March 9, 1991 he was a passenger of United Airlines Flight No. 808 bound for New York and who expressed doubt on whether petitioner Webb was his co-passenger in the trip; (4) the sworn statement of Lolita Birrer, a former live-in partner of Gerardo Biong, who narrated the manner of how Biong investigated and tried to cover up the crime at bar;⁹ (5) the sworn statements of Belen Dometita and Teofilo Minoza, two of the Vizconde maids, and the sworn statements of Normal White, a security guard and Manciano Gatmaitan, an engineer. The autopsy reports of the victims were also submitted and they showed that Carmela had nine (9) stab wounds, Estrellita twelve (12) and Jennifer nineteen (19).¹⁰ The genital examination of Carmela confirmed the presence of spermatozoa.¹¹
Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion for Production And Examination of Evidence and Documents for the NBI to produce the following:

(a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to and stay of Hubert Webb in the United States from March 9, 1991 to October 22, 1992;

(b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A. Cabanayan, M.D.;

(d) Photographs of fingerprints lifted from the Vizconde residence taken during the investigation;

(e) Investigation records of NBI on Engr. Danilo Aguas, et al.;

(f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated September 2, 1991 submitted by Atty. Arlis Vela, Supervising Agent;

(g) Records of arrest, interview, investigation and other written statements of Jessica Alfaro (other than the May 22, 1995 Sworn Statement) conducted by the NBI and other police agencies;

(h) transmittal letter to the NBI, including the report of the investigation conducted by Superintendent Rodolfo C. Sison, Regional Deputy Director, NCRC;

(i) The names of NBI officials/agents composing the Task Force Jecares, including their respective positions and duties;

(j) Statements made by other persons in connection with the crime charged.

The motion was granted by the DOJ Panel and the NBI submitted photocopies of the documents. It alleged it lost the original of the April 28, 1995 sworn statement of Alfaro. This compelled petitioner Webb to file Civil Case No. 951099 in the Regional Trial Court (RTC) of Makati, Br. 63, for the purpose, among others, of obtaining the original of said sworn statement. He succeeded, for in the course of its proceedings, Atty. Arturo L. Mercader, Jr., produced a copy of said original in compliance with a subpoena duces tecum. The original was then submitted by petitioner Webb to the DOJ Panel together with his other evidence. It appears, however, that petitioner Webb failed to obtain from the NBI the copy of the Federal Bureau of Investigation (FBI) Report despite his request for its production.
Petitioner Webb claimed during the preliminary investigation that he did not commit the crime at bar as he went to the United States on March 1, 1991 and returned to the Philippines on October 27, 1992. ¹² His alibi was corroborated by Honesto Aragon, Lecinia Edrosolano, Sylvia Climaco, Gina Roque, Sonia Rodriguez, Edgardo Venture and Pamela Francisco.¹³ To further support his defense, he submitted documentary evidence that he bought a bicycle and a 1986 Toyota car while in the United States on said dates¹⁴ and that he was issued by the State of California Driver's License No. A8818707 on June 14, 1991.¹⁵ Petitioner Webb likewise submitted the letter dated July 25, 1995 of Mr. Robert Heafner, Legal Attache of the US Embassy, citing certain records tending to confirm, among others, his arrival at San Francisco, California on March 9, 1991 as a passenger in United Airlines Flight No. 808.
The other respondents — Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony Boy" Lejano, Peter Estrada, Miguel Rodriguez and Gerardo Biong — submitted sworn statements, responses, and a motion to dismiss denying their complicity in the rape-killing of the Vizcondes.¹⁶ Only the respondents Joey Filart and Artemio "Dong" Ventura failed to file their counter-affidavits though they were served with subpoena in their last known address.¹⁷ In his sworn statement, petitioner Gatchalian alleged that from 11 o'clock in the evening of June 29, 1991 until 3 o'clock in the morning of the following day, he was at the residence of his friends, Carlos and Andrew Syyap, at New Alabang Village, Muntinlupa watching video tapes. He claimed that his co-petitioner Lejano was with him.
On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause to hold respondents for trial" and recommending that an Information for rape with homicide be filed against petitioners and their co-respondents,¹⁸ On the same date, it filed the corresponding Information¹⁹ against petitioners and their co-accused with the Regional Trial Court of Parañaque. The case was docketed as Criminal Case No. 95-404 and raffled to Branch 258 presided by respondent judge Zosimo V. Escano. It was, however, the respondent judge Raul de Leon, pairing judge of Judge Escano, who issued the warrants of arrest against the petitioners. On August 11, 1995, Judge Escano voluntarily inhibited himself from the case to avoid any suspicion about his impartiality considering his employment with the NBI before his appointment to the bench. The case was re-raffled to Branch 274, presided by Judge Amelita Tolentino who issued new warrants of arrest against the petitioners and their co-accused. On August 11, 1995, petitioner Webb voluntarily surrendered to the police authorities at Camp Ricardo Papa Sr., in Bicutan, Taguig. Petitioners Gatchalian and Lejano likewise gave themselves up to the authorities after filing their petitions before us.
In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino gravely abused their discretion when they failed to conduct a preliminary examination before issuing warrants of arrest against them: (2) the DOJ Panel likewise gravely abused its discretion in holding that there is probable cause to charge them with the crime of rape with homicide; (3) the DOJ Panel denied them their constitutional right to due process during their preliminary investigation; and (4) the DOJ Panel unlawfully intruded into judicial prerogative when it failed to charge Jessica Alfaro in the Information as an accused.
We find the petitions bereft of merit.

Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May 22, 1995 sworn statement of Jessica Alfaro is inherently weak and uncorroborated. They hammer on alleged material inconsistencies between her April 28, 1995 and May 22, 1995 sworn statements. They assail her credibility for her misdescription of petitioner Webb's hair as semi-blonde. They also criticize the procedure followed by the DOJ Panel when it did not examine witnesses to clarify the alleged incredulities and inconsistencies in the sworn statements of the witnesses for the NBI.

We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule 112 provides that a preliminary investigation should determine " . . . whether there is a sufficient ground to engender a well-grounded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial." Section 3 of the same Rule outlines the procedure in conducting a preliminary investigation, thus:

Sec. 3. Procedure. — Except as provided for in Section 7 hereof, no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted in the following manner:

(a) The complaint shall state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents, in such number of copies as there are respondents, plus two (2) copies for the official file. The said affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a notary public, who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss the same if he finds no ground to continue with the inquiry, or issue a subpoena to the respondent, attaching thereto a copy of the complaint, affidavits and other supporting documents. Within ten (10) days from receipt thereof, the respondent shall submit counter-affidavits and other supporting documents. He shall have the right to examine all other evidence submitted by the complainant.

(c) Such counter-affidavits and other supporting evidence submitted by the respondent shall also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall be furnished by him to the complainant.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall base his resolution on the evidence presented by the complainant.

(e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. If the parties so desire, they may submit questions to the investigating officer which the latter may propound to the parties or witnesses concerned.

(f) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial.

Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the respondent for trial, he shall prepare the resolution and corresponding information. He shall certify under oath that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses, that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof . . ."

The need to find probable cause is dictated by the Bill of Rights which protects "the right of the people to be secure in their persons . . . against unreasonable searches and seizures of whatever nature . . ."²⁰ An arrest without a probable cause is an unreasonable seizure of a person, and violates the privacy of persons which ought not to be intruded by the State.²¹ Probable cause to warrant arrest is not an opaque concept in our jurisdiction. Continuing accretions of case law reiterate that they are facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested.²² Other jurisdictions utilize the term man of reasonable caution 23 or the term ordinarily prudent and cautious man.²⁴ The terms are legally synonymous and their reference is not to a person with training in the law such as a prosecutor or a judge but to the average man on the street.²⁵ It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of our technical rules of evidence of which his knowledge is nil. Rather, he relies on the calculus of common sense of which all reasonable men have an abundance.

Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely abused its discretion when it found probable cause against the petitioners. Petitioners belittle the truthfulness of Alfaro on two (2) grounds: (a) she allegedly erroneously described petitioner Webb's hair as semi-blond and (b) she committed material inconsistencies in her two (2) sworn statement, thus:²⁶

xxx xxx xxx

To illustrate, the following are some examples of inconsistencies in the two sworn statements of Alfaro:

On whether Alfaro knew Carmela before the incident in question

First Affidavit: She had NOT met Carmela before June 29, 1991.

Second Affidavit: "I met her in a party sometime in February, 1991."

On whether Alfaro saw the dead bodies

First Affidavit: She did not see the three dead persons on that night. She just said "on the following day I read in the newspaper that there were three persons who were killed . . ."

Second Affidavit: "I peeped through the first door on the left. I saw two bodies on top of the bed, bloodied, and in the floor, I saw Hubert on top of Carmela."

On the alleged rape of Carmela Vizconde

First Affidavit: She did not see the act of rape.

Second Affidavit: She saw Hubert Webb "with bare buttocks, on top of Carmela and pumping, her mouth gagged and she was moaning and I saw tears on her eyes."

On how Webb, Lejano, and Ventura entered the Vizconde house

First Affidavit: "by jumping over the fence, which was only a little more than a meter high."

Second Affidavit: They "entered the gate which was already open."

On whether Alfaro entered the Vizconde house

First Affidavit: She never entered the house.

Second Affidavit: "I proceeded to the iron grill gate leading to the dirty kitchen."

In its Resolution, the DOJ Panel ruled that these alleged misdescription and inconsistencies did not erode the credibility of Alfaro. We quote the pertinent ruling, viz.:²⁷

xxx xxx xxx

As regards the admissibility of Alfaro's statements, granting for purposes of argument merely that she is a co-conspirator, it is well to note that confessions of a co-conspirator may be taken as evidence to show the probability of the co-conspirator's participation in the commission of the crime (see People vs. Lumahang, 94 Phil. 1084).

Furthermore, it is a well-established doctrine that conspiracy need not be proved by direct evidence of prior agreement to commit the crime. Indeed, "only rarely would such a prior agreement be demonstrable since, in the nature of things, criminal undertakings are only rarely documented by agreements in writing. Thus, conspiracy may be inferred from the conduct of the accused before, during and after the commission of the crime, showing that the several accused had acted in concert or in unison with each other, evincing a common purpose or design." (Angelo vs. Court of Appeals, 210 SCRA 402 [1992], citations omitted; People vs. Molleda, 86 SCRA 699).

Neither can we discredit Alfaro merely because of the inconsistencies in her two sworn statements. In Angelo, the Court refused to discredit the testimony of a witness accusing therein petitioner for the slaying of one Gaviano Samaniego even though said witness failed to name Angelo in his affidavit which was executed five (5) months earlier. Granting, the Court continued, that a part of the witness' testimony is untrue, such circumstance is not sufficient to discredit the entire testimony of the witness.

On August 7, 1995, another counsel for respondent Webb submitted his memorandum suggesting that the instant complaint "should not be decided within the month to give time to the NBI to coordinate with the FBI on the latter's inquiry into the whereabouts of Hubert Webb . . . and to check on our U.S.-based witnesses."

In said memorandum, counsel for respondent Webb calls for the application of the maxim falsus in uno, falsus in omnibus arising from the inconsistencies of Alfaro's statements, among others. This is untenable. As held in Angelo:

There is no rule of law which prohibits a court from crediting part of the testimony of a witness as worthy of belief and from simultaneously rejecting other parts which the court may find incredible or dubious. The maxim falsus in uno, falsus in omnibus is not a rule of law, let alone a general rule of law which is universally applicable. It is not a legal presumption either. It is merely a latinism describing the conclusion reached by a court in a particular case after ascribing to the evidence such weight or lack of weight that the court deemed proper.

In the case before us, complainant reasoned out that Alfaro was then having reservations when she first executed the first statement and held back vital information due to her natural reaction of mistrust. This being so, the panel believes that the inconsistencies in Alfaro's two sworn statements have been sufficiently explained especially specially so where there is no showing that the inconsistencies were deliberately made to distort the truth. Consequently, the probative value of Alfaro's testimony deserves full faith and credit. As it has been often noted, ex parte statements are generally incomplete because they are usually executed when the affiant's state of mind does not give her sufficient and fair opportunity to comprehend the import of her statement and to narrate in full the incidents which transpired (People vs. Sarellana, 233 SCRA 31 [1994]; Angelo vs. Court of Appeals, supra). In the case at bar, there is no dispute that a crime has been committed and what is clear before us is that the totality of the evidence submitted by the complainant indicate a prima facie case that respondents conspired in the perpetration of the imputed offense.

We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of counsel²⁸ and consists of six (6) pages, in single space reciting in rich details how the crime was planned and then executed by the petitioners. In addition, the DOJ Panel evaluated the supporting sworn statements of Nerissa Rosales and Mila Gaviola, former housemaids of the Webbs, Carlos J. Cristobal, a passenger in United Airlines Flight No. 808 and Lolita Birrer, a paramour of Gerardo Biong. The Panel assayed their statements as follows:²⁹

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According to Nerissa E. Rosales, a former housemaid of the Webb family, on June 29, 1991, between 7:00 o'clock and 8:00 o'clock in the evening, Hubert was at home inside his room with two male visitors. She knew it because she and her co-housemaid, Loany, were instructed by Hubert to bring them three glasses of juice. It was the last time she saw Hubert and was later told by then Congressman Webb that Hubert was in the United States.

While Mila S. Gaviola, another former housemaid of the Webb family and who served as a laundry woman, claims, aside from corroborating the statement of Nerissa Rosales, that on June 30, 1991, she woke up at around 4:00 in the morning and as what she used to do, she entered the rooms of the Webbs to get their clothes to be washed. As a matter of fact, in that early morning, she entered Hubert's room and saw Hubert, who was only wearing his pants, already awake and smoking while he was sitting on his bed. She picked up Hubert's scattered clothes and brought them together with the clothes of the other members of the family to the laundry area. After taking her breakfast, she began washing the clothes of the Webbs. As she was washing the clothes of Hubert Webb, she noticed fresh bloodstains in his shirt. After she finished the laundry, she went to the servant's quarters. But feeling uneasy, she decided to go up to the stockroom near Hubert's room to see what he was doing. In the said stockroom, there is a small door going to Hubert's room and in that door there is a small opening where she used to see Hubert and his friends sniffing on something. She observed Hubert was quite irritated, uneasy, and walked to and from inside his room.

On that day, she noticed Hubert left the house at around 1:00 in the afternoon and came back at around 4:00 in the same afternoon and went inside his room using the secret door of the house. It was the last time that she saw Hubert until she left the Webb family.

On the other hand, Carlos J. Cristobal alleged that on March 9, 1991, at about 10:00 in the morning, he was at the Ninoy Aquino International Airport as he was then scheduled to take the United Airlines Flight No. 808 at 2:00 in the afternoon for New York. At the airport's lobby, he saw then Congressman Freddie Webb with a male companion. He greeted him and Webb answered: "Mabuti naman, at ito, ihahatid ko ang anak ko papuntang Florida." He knew Freddie Webb because he often watched him then in a television show "Chicks to Chicks." He observed that the man whom Freddie Webb referred to as his son, was of the same height as Freddie. The son referred to has fair complexion with no distinguishing marks on his face. He (son of Webb) was then wearing a striped white jacket. When he and his children were already inside the plane, he did not see Freddie anymore, but he noticed his son was seated at the front portion of the economy class. He never noticed Freddie Webb's son upon their arrival in San Francisco. He claims that, while watching the television program "DONG PUNO LIVE" lately, he saw the wife of Freddie Webb with her lawyer being interviewed, and when she described Hubert as "moreno" and small built, with a height of five feet and seven inches tall, and who was the one who left for United States on March 9, 1991, he nurtured doubts because such description does not fit the physical traits of the son of Freddie, who left with him for United States on the same flight and date.

Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with him for almost three (3) years and in fact, she had a child with him who is now four (4) years old. Their relationship started in February, 1991 until she broke up with him in September 1993. She recalls that on June 29, 1991, at around 6:00 p.m., Biong invited her to play mahjong at the canteen of a certain Aling Glo located at the back of the Parañaque Municipal Hall.

At about 2:30, in the early morning of January 30, 1991, the radio operator of the Parañaque police told Biong that he has a phone call. Before Biong went to the radio room, she was instructed to take him over and after somebody won the game, she followed Biong at the radio room where she overheard him uttering, "Ano?, Saan? Mahirap yan, Paano, o sige, aantayin kita, O ano?, dilaw na taxi, o sige." When he put the phone down, Biong told her, "Mayroon lang akong rerespondehan, ikaw muna ang maupo" and then, he went outside the canteen apparently waiting for somebody. Twenty minutes later, a taxi, colored yellow, arrived with a male passenger sitting at the backseat and parked near the canteen. After it made some signals by blinking its headlight, Biong rode thereat at the front seat beside the driver and then, they left. She was not able to recognize the male passenger because the window of the taxi was tinted. Biong came back at around 7:00 of the same morning and when he arrived, he immediately washed his hands and face, and took his handkerchief from his pocket which he threw at the trash can. She asked him why he threw his handkerchief and he answered, "Hmp . . . amoy tae." She inquired what happened in BF Homes and he replied, "Putang inang mga batang iyon, pinahirapan nila ako."

Biong later invited her for breakfast, but they first went to his office where she observed him doing something in his steel cabinet while he appeared to be uneasy. Moments later, Galvan, another policeman of Parañaque, arrived and said, "Oy Biong, may tatlong patay sa BF, imbestigahan mo" to which Biong answered, "Oo susunod na ako." Biong went to the office of Capt. Don Bartolome who offered to accompany him and with whom she asked permission to go with them. Before they proceeded to the place where the killings happened, she asked Biong if he knew the exact address and the latter immediately responded, "Alam ko na yon." She was surprised because Galvan never told him the place of the incident.

As soon as they arrived at the Vizconde's residence, Biong instructed the housemaids to contact the victim's relatives, while the security guard fetched the barangay chairman and the president of the Homeowners Association. When all these persons were already in the house, Biong started recording the wounds of the victim. Inside the master's bedroom, she saw Biong took a watch from the jewelry box. Because she could not tolerate the foul odor, she and Capt. Bartolome went out of the room and proceeded to the dining area. On top of the dining table, she saw the scattered contents of a shoulder bag. Moments later, Biong came out from the room and proceeded to the front door to remove the chain lock; asked the keys from the housemaid and it was only then that the main door was opened. Biong noticed a stone in front of the broken glass of the door and requested Capt. Bartolome to go inside the servant's quarters as he doubted the housemaids' claim that they heard nothing unusual. Using the handle of his gun, Biong broke the remaining glass of the door panel. Bartolome then came out of the room and told Biong that he can hear the sound of the glass being broken. At the garage, Biong also noticed same marks on the hood of the car.

On the following day, at around 12:00 noon, Biong arrived in her house together with the Vizconde housemaids. When Biong was preparing to take a bath, she saw him remove from his pocket the things she also saw from Vizconde's residence, to wit: calling cards, driver's license, ATM card, a crossed check worth P80,000.00, earrings, a ring, bracelet, necklace, and the watch he took from the jewelry box inside the room of the Vizcondes. These jewelry items were later pawned by Biong for P20,000.00 at a pawnshop in front of Chow-Chow restaurant in Santos Avenue, Parañaque. The next day, she saw Biong took from his locker at the Parañaque Police Station an imported brown leather jacket, which the latter claimed to have been given to him by the person who called him up in the early morning of June 30, 1991.

Since then, Biong has been wearing said jacket until they broke up sometime in 1993. She observed that Biong seemed not interested in pursuing the investigation of the Vizconde case. In fact, when Biong and this group picked up Mike Gatchalian and brought him to the Parañaque Police Station, she was surprised that Biong halted the investigation when Gatchalian was profusely sweating while being interrogated. After the father of Gatchalian talked to Colonel Pureza, the latter called up and instructed Biong to bring Gatchalian to him (Colonel Pureza) and that was the last thing she remembered regarding this case.

The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of petitioners. It ruled: ³⁰

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The voluminous number of exhibits submitted by respondent Webb to support his defense of denial and alibi notwithstanding, the panel, after a careful and thorough evaluation of the records, believes that they cannot outweigh the evidence submitted by the complainant. Alibi cannot prevail over the positive identification made by a prosecution witness. Verily, alibi deserves scant consideration in the face of positive identification especially so where the claim of alibi is supported mainly by friends and relatives (People vs. Apolonia, 235 SCRA 124 [1994]; People vs. Lucas, 181 SCRA 316 and a long line of cases).

Similarly, denial is a self-serving negative which cannot be given greater evidentiary weight than the declaration of a credible witness who testified on affirmative matters (People vs. Carizo, 233 SCRA 687 [1994]). Indeed, denial, like alibi, is weak and becomes even more weaker when arrayed against the positive identification by the witness for the prosecution (People vs. Onpaid, 233 SCRA 62 [1994]).

Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano, whom he claimed was with him watching video tapes at the Syyap residence. Other than claiming that he "was not and could not have been at or near the area of the Vizconde residence at the time of the alleged commission of the crime," respondent Lejano proffered no evidence to substantiate his claim of alibi.

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On the other hand, respondent Webb seeks to enhance the acceptability of his alibi in the form of documents tending to show that he was thousands of miles away when the incident occurred. We have carefully deliberated and argued on the evidence submitted by respondent Webb in support of his absence from the country since March 9, 1991 to October 26, 1992 and found the same wanting to exonerate him of the offense charged. The material dates in this case are June 29 and 30, 1991. While respondent Webb may have submitted proof tending to show that he was issued a California driver's license on June 14, 1991, there is no showing that he could not have been in the country on the dates above mentioned. Neither do we find merit in the allegation that respondent Webb personally bought a bicycle on June 30, 1991 in California in view of his positive identification by Alfaro and the two (2) househelps of the Webb family who testified that he was here in the country on said dates. Additionally, the issuance of receipt evidencing the purchase of a bicycle in California is no conclusive proof that the name appearing thereon was the actual buyer of the merchandise.

Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the DOJ Panel did not gravely abuse its discretion when it found probable cause against the petitioners. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar v. United States,³¹ while probable cause demands more than "bare suspicion," it requires "less than evidence which would justify . . . conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.

Considering the low quantum and quality of evidence needed to support a finding of probable cause, we also hold that the DOJ Panel did not, gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory questions. The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. If the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable cause and clarificatory hearing was unnecessary.

We now come to the charge of petitioners that respondent Judge Raul de Leon and, later, respondent Judge Amelita Tolentino issued warrants of arrest against them without conducting the required preliminary examination. Petitioners support their stance by highlighting the following facts: (1) the issuance of warrants of arrest in a matter of few hours; (2) the failure of said judges to issue orders of arrest; (3) the records submitted to the trial court were incomplete and insufficient from which to base a finding of probable cause; and (4) that even Gerardo Biong who was included in the Information as a mere accessory had a "NO BAIL" recommendation by the DOJ Panel. Petitioners postulate that it was impossible to conduct a "searching examination of witnesses and evaluation of the documents" on the part of said judges.

The issuance of a warrant of arrest interferes with individual liberty and is regulated by no less than the fundamental law of the land. Section 2 of Article III of the Constitution provides:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce and particularly describing the place to be searched and the persons or things to be seized.

The aforequoted provision deals with the requirements of probable cause both with respect to issuance of warrants of arrest or search warrants. The similarities and differences of their requirements ought to be educational. Some of them are pointed out by Professors LaFave and Israel, thus:³² "It is generally assumed that the same quantum of evidence is required whether one is concerned with probable cause to arrest or probable cause to search. But each requires a showing of probabilities as to somewhat different facts and circumstances, and thus one can exist without the other. In search cases, two conclusions must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched. It is not also necessary that a particular person be implicated. By comparison, in arrest cases there must be probable cause that a crime has been committed and that the person to be arrested committed it, which of course can exist without any showing that evidence of the crime will be found at premises under that person's control." Worthy to note, our Rules of Court do not provide for a similar procedure to be followed in the issuance of warrants of arrest and search warrants. With respect to warrants of arrest, section 6 of Rule 112 simply provides that "upon filing of an information, the Regional Trial Court may issue a warrant for the arrest of the accused." In contrast, the procedure to be followed in issuing search warrants is more defined. Thus, Sections 3, 4 and 5 of Rule 126 provide:

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Sec. 3. Requisites for issuing search warrant. — A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized.

Sec. 4. Examination of complainant; record. — The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and any witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted.

Sec. 5. Issuance and form of search warrant. — If the judge is thereupon satisfied of the facts upon which the application is based, or that there is probable cause to believe that they exist, he must issue the warrant, which must be substantially in the form prescribed by these Rules.

We discussed the difference in the Procedure of issuing warrants of arrest and search warrants in Soliven vs. Makasiar,³³ thus:

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The second issue, raised by Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads:

Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of 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. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant; 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 conclusions as to the existence of probable cause.

Sound policy dictates this procedure, 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.

Clearly then, the Constitution, the Rules of Court, and our case law³⁴ repudiate the submission of petitioners that respondent judges should have conducted "searching examination of witnesses" before issuing warrants of arrest against them. They also reject petitioners' contention that a judge must first issue an order of arrest before issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest.

In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer³⁵ as well as the counter-affidavits of the petitioners. Apparently, the painstaking recital and analysis of the parties' evidence made in the DOJ Panel Report satisfied both judges that there is probable cause to issue warrants of arrest against petitioners. Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not the certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. The sufficiency of the review process cannot be measured by merely counting minutes and hours. The fact that it took the respondent judges a few hours to review and affirm the probable cause determination of the DOJ Panel does not mean they made no personal evaluation of the evidence attached to the records of the case.³⁶

Petitioners' reliance on the case of Allado vs. Diokno³⁷ is misplaced. Our Allado ruling is predicated on the utter failure of the evidence to show the existence of probable cause. Not even the corpus delicti of the crime was established by the evidence of the prosecution in that case. Given the clear insufficiency of the evidence on record, we stressed the necessity for the trial judge to make a further personal examination of the complainant and his witnesses to reach a correct assessment of the existence or non-existence of probable cause before issuing warrants of arrest against the accused. The case at bar, however, rests on a different factual setting. As priorly discussed, the various types of evidence extant in the records of the case provide substantial basis for a finding of probable cause against the petitioner. The corpus delicti of the crime is a given fact. There is an eyewitness account of the imputed crime given by Alfaro. The alibi defense of petitioner Webb is also disputed by sworn statements of their former maids. It was therefore unnecessary for the respondent judges to take the further step of examining ex parte the complainant and their witnesses with searching questions.

III

Petitioners also complain about the denial of their constitutional right to due process and violation of their right to an impartial investigation. They decry their alleged hasty and malicious prosecution by the NBI and the DOJ Panel. They also assail the prejudicial publicity that attended their preliminary investigation.

We reject these contentions. The records will show that the DOJ Panel did not conduct the preliminary investigation with indecent haste. Petitioners were given fair opportunity to prove lack of probable cause against them. The fairness of this opportunity is well stressed in the Consolidated Comment of the Solicitor General, viz.:

Again, there is no merit in this contention. Petitioners were afforded all the opportunities to be heard. Petitioner Webb actively participated in the preliminary investigation by appearing in the initial hearing held on June 30, 1995 and in the second hearing on July 14, 1995; and by filing a "Motion for Production and Examination of Evidence and Documents" on June 27, 1995 (p. 4, Petition), a "Reply to the compliance and Comment/Manifestation to the Motion for Production and Examination of Evidence" on July 5, 1995 (p. 6, Petition), a "Comment and Manifestation" on July 7, 1995 (p. 6, Petition), his "Counter-Affidavit" on July 14, 1995 (pp. 6-7, Petition) and a "Motion to Resolve" on August 1, 1995. Numerous letter-requests were also sent by the petitioner Webb's counsel to the DOJ Panel requesting the latter to furnish him a copy of the reports prepared by the FBI concerning the petitioner's whereabouts during the material period (Annexes "L", "L-1" and "L-2" of the Supplemental Petition dated August 14, 1995). In fact, not satisfied with the decision of the DOJ Panel not to issue subpoena duces tecum to Atty. Arturo L. Mercader, Jr., petitioner Webb filed a "Petition for Injunction, Certiorari, Prohibition and Mandamus" with the Regional Trial Court, Branch 63 of Makati in order to compel said Atty. Mercader, Jr. to produce the first sworn statement of Alfaro for submission to the DOJ Panel. (p. 4, Petition) The said court dismissed the petition after Mercader produced and submitted to the DOJ Panel the first sworn statement of Alfaro, without ruling on the admissibility and credence of the two (2) conflicting and inconsistent sworn statements of the principal witness, Alfaro. (Attached hereto is a copy of the order of Judge Ruben A. Mendiola, RTC-Makati, Branch 63 dated July 28, 1995) marked as Annex "F."

It must also be pointed out that despite the declaration by the DOJ Panel that the preliminary investigation was to be terminated after the hearing held on July 14, 1995, the panel continued to conduct further proceedings, e.g. comparison of the photo-copies of the submitted documents with the originals on July 17, 1995. (p. 7, Petition) The panel even entertained the "Response" submitted by accused Miguel Rodriguez on July 18, 1995. (p. 17 Resolution) In addition to these, the panel even announced that any party may submit additional evidence before the resolution of the case. (p. 8, Petition) From the time the panel declared the termination of the preliminary investigation on July 14, 1995, twenty-seven (27) days elapsed before the resolution was promulgated, and the information eventually filed in the Regional Trial Court of Parañaque on August 10, 1995. This notwithstanding the directive of Section 3(f) Rule 112 of the Revised Rules of Court that the investigating officer shall resolve the case within ten (10) days from the termination of the preliminary investigation. The DOJ Panel precisely allowed the parties to adduce more evidence in their behalf and for the panel to study the evidence submitted more fully. This directly disputes the allegation of the petitioners that the resolution was done with indecent haste in violation of the rights of the petitioners. During the period of twenty-seven (27) days, the petitioners were free to adduce and present additional evidence before the DOJ Panel.

Verily, petitioners cannot now assert that they were denied due process during the conduct of the preliminary investigation simply because the DOJ Panel promulgated the adverse resolution and filed the Information in court against them.

Petitioners cannot also assail as premature the filing of the Information in court against them for rape with homicide on the ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the Secretary of Justice. The filing of said Information is in accord with Department of Justice Order No. 223, series of 1993, dated June 25, 1993. We quote its pertinent sections, viz.:

Sec. 4. Non-Appealable Cases; Exceptions. — No appeal may be taken from a resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except upon showing of manifest error or grave abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of discretion, no appeal shall be entertained where the appellant had already been arraigned. If the appellant is arraigned during the pendency of the appeal, said appeal shall be dismissed motu propio by the Secretary of Justice.

An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of the information in court.

Sec. 2. When to appeal. — The appeal must be filed within a period of fifteen (15) days from receipt of the questioned resolution by the party or his counsel. The period shall be interrupted only by the filing of a motion for reconsideration within ten (10) days from receipt of the resolution and shall continue to run from the time the resolution denying the motion shall have been received by the movant or his counsel. (Emphasis supplied)

Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court after the consummation of the preliminary investigation even if the accused can still exercise the right to seek a review of the prosecutor's recommendation with the Secretary of Justice.

Next, petitioners fault the DOJ Panel for not including Alfaro in the Information considering her alleged conspiratorial participation in the crime of rape with homicide. The non-inclusion of Alfaro is anchored on Republic Act
No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit Program And For Other Purposes" enacted on April 24, 1991. Alfaro qualified under its Section 10, which provides:

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Sec. 10. State Witness. — Any person who has participated in the commission of a crime and desires to a witness for the State, can apply and, if qualified as determined in this Act and by the Department, shall be admitted into the Program whenever the following circumstances are present:

(a) the offense in which his testimony will be used is a grave felony as defined under the R.P.C. or its equivalent under special laws;

(b) there is absolute necessity for his testimony;

(d) his testimony can be substantially corroborated on its material points;

(e) he does not appear to be most guilty; and

(f) he has not at anytime been convicted of any crime involving moral turpitude.

An accused discharged from an information or criminal complaint by the court in order that he may be a State Witness pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition be admitted to the Program if he complies with the other requirements of this Act. Nothing in this Act shall prevent the discharge of an accused so that he can be used as a Witness under Rule 119 of the Revised Rules of Court.

Upon qualification of Alfaro to the program, Section 12 of the said law mandates her non-inclusion in the criminal Complaint or Information, thus:

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Sec. 12. Effect of Admission of a State Witness into the Program. — The certification of admission into the Program by the Department shall be given full faith and credit by the provincial or city prosecutor who is required NOT TO INCLUDE THE WITNESS IN THE CRIMINAL COMPLAINT OR INFORMATION and if included therein, to petition the court for his discharge in order that he can be utilized as a State Witness. The court shall order the discharge and exclusion of the said accused from the information.

Admission into the Program shall entitle such State Witness to immunity from criminal prosecution for the offense or offenses in which his testimony will be given or used and all the rights and benefits provided under Section 8 hereof.

The validity of these provisions is challenged by petitioner Webb. It is urged that they constitute ". . . an intrusion into judicial prerogative for it is only the court which has the power under the Rules on Criminal Procedure to discharge an accused as a state witness." The argument is based on Section 9, Rule 119³⁸ which gives the court the prerogative to approve the discharge of an accused to be a state witness. Petitioner's argument lacks appeal for it lies on the faulty assumption that the decision whom to prosecute is a judicial function, the sole prerogative of courts and beyond executive and legislative interference. In truth, the prosecution of crimes appertains to the executive department of government whose principal power and responsibility is to see that our laws are faithfully executed. A necessary component of this power to execute our laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide range of discretion — the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to determine who can qualify as a witness in the program and who shall be granted immunity from prosecution.³⁹ Section 9 of Rule 119 does not support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. Under this provision, the court, is given the power to discharge a state witness only because it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function. Moreover, the Rules of Court have never been interpreted to be beyond change by legislation designed to improve the administration of our justice system. R.A. No. 6981 is one of the much sought penal reform laws to help government in its uphill fight against crime, one certain cause of which is the reticence of witnesses to testify. The rationale for the law is well put by the Department of Justice, viz.: "Witnesses, for fear of reprisal and economic dislocation, usually refuse to appear and testify in the investigation/prosecution of criminal complaints/cases. Because of such refusal, criminal complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a more effective administration of criminal justice, there was a necessity to pass a law protecting witnesses and granting them certain rights and benefits to ensure their appearance in investigative bodies/courts."⁴⁰ Petitioner Webb's challenge to the validity of R.A. No. 6981 cannot therefore succeed.

Further, petitioners charge the NBI with violating their right to discovery proceedings during their preliminary investigation by suppressing the April 28, 1995 original copy of the sworn statement of Alfaro and the FBI Report. The argument is novel in this jurisdiction and as it urges an expansive reading of the rights of persons under preliminary investigation it deserves serious consideration. To start with, our Rules on Criminal Procedure do not expressly provide for discovery proceedings during the preliminary investigation stage of a criminal proceeding.⁴¹ Sections 10 and 11 of Rule 117 do provide an accused the right to move for a bill of particulars and for production or inspection of material evidence in possession of the prosecution.⁴² But these provisions apply after the filing of the Complaint or Information in court and the rights are accorded to the accused to assist them to make an intelligent plea at arraignment and to prepare for trial.⁴³

This failure to provide discovery procedure during preliminary investigation does not, however, negate its use by a person under investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is not too early a stage to guard against any significant erosion of the constitutional right to due process of a potential accused. As aforediscussed, the object of a preliminary investigation is to determine the probability that the suspect committed a crime. We hold that the finding of a probable cause by itself subjects the suspect's life, liberty and property to real risk of loss or diminution. In the case at bar, the risk to the liberty of petitioners cannot be understated for they are charged with the crime of rape with homicide, a non-bailable offense when the evidence of guilt is strong.

Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be fair and impartial.⁴⁴ As this Court emphasized in Rolito Go vs. Court of Appeals,⁴⁵ "the right to have a preliminary investigation conducted before being bound over for trial for a criminal offense, and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right." A preliminary investigation should therefore be scrupulously conducted so that the constitutional right to liberty of a potential accused can be protected from any material damage. We uphold the legal basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation considering their exculpatory character, and hence, unquestionable materiality to the issue of their probable guilt. The right is rooted on the constitutional protection of due process which we rule to be operational even during the preliminary investigation of a potential accused. It is also implicit in section (3) (a) of Rule 112 which requires during the preliminary investigation the filing of a sworn complaint, which shall ". . . state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents . . ."

In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. In the 1963 watershed case of Brady v. Maryland 46 the United States Supreme Court held that "suppression of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935 case of Mooney v. Holohan 47 which laid down the proposition that a prosecutor's intentional use of perjured testimony to procure conviction violates due process. Thus, evolved jurisprudence firming up the prosecutor's duty to disclose to the defense exculpatory evidence in its possession.⁴⁸ The rationale is well put by Justice Brennan in Brady⁴⁹ — "society wins not only when the guilty are convicted but when criminal trials are fair." Indeed, prosecutors should not treat litigation like a game of poker where surprises can be sprung and where gain by guile is not punished.

But given the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor, we are not prepared to rule that the initial non-production of the original sworn statement of Alfaro dated April 28, 1995 could have resulted in the reasonable likelihood that the DOJ Panel would not have found probable cause. To be sure, the NBI, on July 4, 1995, upon request of petitioners, submitted a photocopy of Alfaro's April 28, 1995 sworn statement. It explained it cannot produce the original as it had been lost. Fortunately, petitioners, on July 28, 1995, were able to obtain a copy of the original from Atty. Arturo Mercader in the course of the proceedings in Civil Case No. 951099.⁵⁰ As petitioners admit, the DOJ Panel accepted the original of Alfaro's April 28, 1995 sworn statement as a part of their evidence.⁵¹ Petitioners thus had the fair chance to explain to the DOJ Panel then still conducting their preliminary investigation the exculpatory aspects of this sworn statement. Unfortunately for petitioners, the DOJ Panel still found probable cause to charge them despite the alleged material discrepancies between the first and second sworn statements of Alfaro. For reasons we have expounded, this finding of probable cause cannot be struck down as done with grave abuse of discretion.⁵² On the other hand, the FBI Report while corroborative of the alibi of petitioner Webb cannot by itself reverse the probable cause finding of the DOJ Panel in light of the totality of evidence presented by the NBI.

Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due to the prejudicial publicity waged in the press and broadcast media by the NBI.

Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty while undergoing a preliminary investigation.

In floating this issue, petitioners touch on some of the most problematic areas in constitutional law where the conflicting demands of freedom of speech and of the press, the public's right to information, and an accused's right to a fair and impartial trial collide and compete for prioritization. The process of pinpointing where the balance should be struck has divided men of learning as the balance keeps moving either on the side of liberty or on the side of order as the tumult of the time and the welfare of the people dictate. The dance of balance is a difficult act to follow.

In democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated even today. Commentators still bombard the public with views not too many of which are sober and sublime. Indeed, even the principal actors in the case — the NBI, the respondents, their lawyers and their sympathizers — have participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and the public. In the seminal case of Richmond Newspapers, Inc. v. Virginia,⁵³ it was wisely held:

xxx xxx xxx

(a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized: when a shocking crime occurs, a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. To work effectively, it is important that society's criminal process "satisfy the appearance of justice," Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.

(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked by
the draftsmen. A trial courtroom is a public place where the people generally — and representatives of the media — have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place.

(c) Even though the Constitution contains no provision which by its terms guarantees to the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al.,⁵⁴ we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content, of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity.

It all remains to state that the Vizconde case will move to a more critical stage as petitioners will now have to undergo trial on the merits. We stress that probable cause is not synonymous with guilt and while the light of publicity may be a good disinfectant of unfairness, too much of its heat can bring to flame an accused's right to fair trial. Without imposing on the trial judge the difficult task of supervising every specie of speech relating to the case at bar, it behooves her to be reminded of the duty of a trial judge in high profile criminal cases to control publicity prejudicial to the fair administration of justice.⁵⁵ The Court reminds judges that our ability to dispense impartial justice is an issue in every trial and in every criminal prosecution, the judiciary always stands as a silent accused. More than convicting the guilty and acquitting the innocent, the business of the judiciary is to assure fulfillment of the promise that justice shall be done and is done — and that is the only way for the judiciary to get an acquittal from the bar of public opinion.

IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of discretion on the part of the respondents. Costs against petitioners.

SO ORDERED.

Regalado, J., concurs.

Mendoza, J., concurs in the result.

Narvasa, C.J., is on leave.

Separate Opinion

FRANCISCO, J., concurring:

The thrust of petitioners' arguments involve the validity and exercise of the prosecutory powers of the State. Maintaining their innocence, petitioners assert that the filing of an information and the issuance of warrants of arrest against them were without probable cause. Petitioners, in my considered view, failed to make a case to warrant the Court's interference.

Preliminary investigation, unlike trial, is summary in nature, the purpose of which is merely to determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof (Paderanga v. Drilon, 196 SCRA 86, 92 [1991]). It is not intended to find guilt beyond reasonable doubt. Courts should give deference, in the absence of a clear showing of arbitrariness, as in this case, to the finding and determination of probable cause by prosecutors in preliminary investigations. If not, the functions of the courts will be unduly hampered by innumerable petitions compelling the review of the exercise of discretion on the part of fiscals or prosecuting attorneys if each time they decide to file an information in court their finding can be immediately brushed aside at the instance of those charged (Ocampo IV v. Ombudsman, 225 SCRA 725, 730 [1993]). The Court, therefore, must look askance at unmeritorious moves that could give a dent in the efficient and effective administration of justice.

Petitioners characterize the evidence against them to be inherently weak and uncorroborated vis-a-vis their defenses. The weight or sufficiency of evidence, to my mind, is best assayed in the trial proper. In the search for truth, a trial has distinct merits over a preliminary investigation. We have had occasion to stress that trial is to be preferred to ferret out the truth (Abugotal v. Tiro, 66 SCRA 196, 201 [1975]). The validity and merits of a party's defense or accusation as well as the admissibility or inadmissibility of testimonies and evidence are better ventilated during the trial stage than in the preliminary investigation level. The ineluctable media attention notwithstanding, truth as to their innocence or guilt is still best determined at the trial.

With respect to petitioners' contention that public respondent judge failed to personally examine and determine the existence of probable cause for the issuance of a warrant, suffice it to say that the judge does not have to personally examine the complainant and his witnesses in order to issue a warrant of arrest as he can rely on the certification of the prosecutor/s (Circular No. 12 — Guidelines on Issuance of Warrants of Arrests [June 30, 1987]; Soliven v. Makasiar, 167 SCRA 393, 398 [1988]). There is ample evidence and sufficient basis on record that support the trial court's issuance of the warrant as petitioners themselves do not contend that the prosecutors' certification was unaccompanied by the records of the preliminary investigation to take their case outside the ambit of the rule. Moreover, contrary to what the petitioners imply, the Court may not determine how cursory or exhaustive the judge's examination of the certification, report and findings of the preliminary investigation and its annexes should be as this depends not only upon the sound exercise of the judge's discretion in personally determining the existence of probable cause, but also from the circumstances of each case (Lim, Sr. v. Felix, 194 SCRA 292, 306 [1991]). Besides, respondent judge, being a public officer, enjoys the presumption of regularity in the performance of his duties (Rule 131, Sec. 3 [m], Rules of Court). The issuance of the warrants of arrest against petitioners thus can not be said to be whimsical or arbitrary.

Lastly, the law in this jurisdiction is lopsided in favor of the accused. The 1987 Constitution and the Rules of Court enumerate an array of rights upon which an accused can seek protection and solace. To mention a few: he has the right to be presumed innocent until the contrary is proved, the right against self-incrimination, the right to remain silent, to confront and cross-examine the witnesses against him, to have a speedy, impartial and public trial, to be heard by himself and counsel, to have competent and independent counsel preferably of his own choice. These rights are afforded to the accused and not to the complainant. Therefore, petitioners need not be distressed if they henceforth go to trial.

I vote to dismiss the petitions.

Mendoza, J., concurs.

Separate Opinion

FRANCISCO, J., concurring:

I vote to dismiss the petitions.

Mendoza, J., concurs.

Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 120431 April 1, 1998

RODOLFO ESPANO, accused-petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

ROMERO, J.:

This is a petition for review of the decision of the Court of Appeals in CA-G.R. CR No. 13976 dated January 16, 1995,¹ which affirmed in toto the judgment of the Regional Trial Court of Manila, Branch 1, convincing petitioner Rodolfo Espano for violation of Article II, Section 8 of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act.

Petitioner was charged under the following information:

That on or about July 14, 1991, in the City of Manila, Philippines, the said accused not being authorized by law to possess or use any prohibited drug, did then and there willfully, unlawfully and knowingly have in his possession and under his custody and control twelve (12) plastic cellophane (bags) containing crushed flowering tops, marijuana weighing 5.5 grams which is a prohibited drug.

Contrary to law. 2

The evidence for the prosecution, based on the testimony of Pat. Romeo Pagilagan, shows that on July 14, 1991, at about 12:30 a.m., he and other police officers, namely, Pat. Wilfredo Aquino, Simplicio Rivera, and Erlindo Lumboy of the Western Police District (WPD), Narcotics Division went to Zamora and Pandacan Streets, Manila to confirm reports of drug pushing in the area. They saw petitioner selling "something" to another person. After the alleged buyer left, they approached petitioner, identified themselves as policemen, and frisked him. The search yielded two plastic cellophane tea bags of marijuana. When asked if he had more marijuana, he replied that there was more in his house. The policemen went to his residence where they found ten more cellophane tea bags of marijuana. Petitioner was brought to the police headquarters where he was charged with possession of prohibited drugs. On July 24, 1991, petitioner posted bail³ and the trial court issued his order of release on July 29, 1991.⁴

Annabelle Alip, forensic chemist of the WPD Criminal Investigation Laboratory Section, testified that the articles sent to her by Pat. Wilfredo Aquino regarding the apprehension of a certain Rodolfo Espano for examination tested positive for marijuana, with a total weight of 5.5 grams.

By way of defense, petitioner testified that on said evening, he was sleeping in his house and was awakened only when the policemen handcuffed him. He alleged that the policemen were looking for his brother-in-law Lauro, and when they could not find the latter, he was instead brought to the police station for investigation and later indicted for possession of prohibited drugs. His wife Myrna corroborated his story.

The trial court rejected petitioner's, defense as a "mere afterthought" and found the version of the prosecution "more credible and trustworthy."

Thus, on August 14, 1992, the trial court rendered a decision, convicting petitioner of the crime charged, the dispositive portion of which reads:

WHEREFORE there being proof beyond reasonable doubt, the court finds the accused Rodolfo Espano y Valeria guilty of the crime of violation of Section 8, Article II, in relation to Section 2 (e-L) (I) of Republic Act No. 6425 as amended by Batas Pambansa Blg. 179, and pursuant to law hereby sentences him to suffer imprisonment of six (6) years and one (1) day to twelve (12) years and to pay a fine of P6,000.00 with subsidiary imprisonment in case of default plus costs.

The marijuana is declared forfeited in favor of government and shall be turned over to the Dangerous Drugs Board without delay.

SO ORDERED. 5

Petitioner appealed the decision to the Court of Appeals. The appellate court, however, affirmed the decision of the trial court in toto.

Hence, this petition.

Petitioner contends that the trial and appellate courts erred in convicting him on the basis of the following: (a) the pieces of evidence seized were inadmissible; (b) the superiority of his constitutional right to be presumed innocent over the doctrine of presumption of regularity, (c) he was denied the constitutional right of confrontation and to compulsory process; and (d) his conviction was based on evidence which was irrelevant and not properly identified.

After a careful examination of the records of the case, this Court finds no compelling reason sufficient to reverse the decisions of the trial and appellate courts.

First, it is a well settled doctrine that findings of trial courts on the credibility of witnesses deserve a high degree of respect. Having observed the deportment of witnesses during the trial, the trial judge is in a better position to determine the issue of credibility and, thus, his findings will not be disturbed during appeal in the absence of any clear showing that he had overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which could have altered the conviction of the appellants.⁶

In this case, the findings of the trial court that the prosecution witnesses were more credible than those of the defense must stand. Petitioner failed to show that Pat. Pagilagan, in testifying against him, was motivated by reasons other than his duty to curb drug abuse and had any intent to falsely impute to him such a serious crime as possession of prohibited drugs. In the absence of such ill motive, the presumption of regularity in the performance of his official duty must prevail.

In People v. Velasco,⁷ this Court reiterated the doctrine of presumption of regularity in the performance of official duty which provides:

. . . Appellant failed to establish that Pat. Godoy and the other members of the buy-bust team are policemen engaged in mulcting or other unscrupulous activities who were motivated either by the desire to extort money or exact personal vengeance, or by sheer whim and caprice, when they entrapped her. And in the absence of proof of any intent on the part of the police authorities to falsely impute such a serious crime against appellant, as in this case, the presumption of regularity in the performance of official duty, . . . , must prevail over the self-serving and uncorroborated claim of appellant that she had been framed. 8

Furthermore, the defense set up by petitioner does not deserve any consideration. He simply contended that he was in his house sleeping at the time of the incident. This Court has consistently held that alibi is the weakest of all defenses; and for it to prosper, the accused has the burden of proving that he was not at the scene of the crime at the time of its commission and that it was physically impossible for him to be there. Moreover, the "claim of a 'frame-up', like alibi, is a defense that has been invariably viewed by the Court with disfavor for it can just as easily be concocted but difficult to prove, and is a common and standard line of defense in most prosecutions arising from violations of the Dangerous Drugs Act."⁹ No clear and convincing evidence was presented by petitioner to prove his defense of alibi.

Second, petitioner contends that the prosecution's failure to present the alleged informant in court cast a reasonable doubt which warrants his acquittal. This is again without merit, since failure of the prosecution to produce the informant in court is of no moment especially when he is not even the best witness to establish the fact that a buy-bust operation had indeed been conducted. In this case, Pat. Pagilagan, one of the policemen who apprehended petitioner, testified on the actual incident of July 14, 1991, and identified him as the one they caught in possession of prohibited drugs. Thus,

We find that the prosecution had satisfactorily proved its case against appellants. There is no compelling reason for us to overturn the finding of the trial court that the testimony of Sgt. Gamboa, the lone witness for the prosecution, was straightforward spontaneous and convincing. The testimony of a sole witness, if credible and positive and satisfies the court beyond reasonable doubt, is sufficient to convict. 10

Thus on the basis of Pat. Pagilagan's testimony, the prosecution was able to prove that petitioner indeed committed the crime charged; consequently, the finding of conviction was proper.

Lastly, the issue on the admissibility of the marijuana seized should likewise be ruled upon. Rule 113 Section 5(a) of the Rules of Court provides:

A peace officer or a private person may, without a warrant, arrest a person:

a. when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

xxx xxx xxx

Petitioner's arrest falls squarely under the aforecited rule. He was caught in flagranti as a result of a buy-bust operation conducted by police officers on the basis of information received regarding the illegal trade of drugs within the area of Zamora and Pandacan Streets, Manila. The police officer saw petitioner handing over something to an alleged buyer. After the buyer left, they searched him and discovered two cellophanes of marijuana. His arrest was, therefore, lawful and the two cellophane bags of marijuana seized were admissible in evidence, being the fruits of the crime.

As for the ten cellophane bags of marijuana found at petitioner's residence, however, the same are inadmissible in evidence.

The 1987 Constitution guarantees freedom against unreasonable searches and seizures under Article III, Section 2 which provides:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

An exception to the said rule is a warrantless search incidental to a lawful arrest for dangerous weapons or anything which may be used as proof of the commission of an offense.¹¹ It may extend beyond the person of the one arrested to include the premises or surroundings under his immediate control. In this case, the ten cellophane bags of marijuana seized at petitioner's house after his arrest at Pandacan and Zamora Streets do not fall under the said exceptions.

In the case of People v. Lua,¹² this Court held:

As regards the brick of marijuana found inside the appellant's house, the trial court correctly ignored it apparently in view of its inadmissibility. While initially the arrest as well as the body search was lawful, the warrantless search made inside the appellant's house became unlawful since the police operatives were not armed with a search warrant. Such search cannot fall under "search made incidental to a lawful arrest," the same being limited to body search and to that point within reach or control of the person arrested, or that which may furnish him with the means of committing violence or of escaping. In the case at bar, appellant was admittedly outside his house when he was arrested. Hence, it can hardly be said that the inner portion of his house was within his reach or control.

The articles seized from petitioner during his arrest were valid under the doctrine of search made incidental to a lawful arrest. The warrantless search made in his house, however, which yielded ten cellophane bags of marijuana became unlawful since the police officers were not armed with a search warrant at the time. Moreover, it was beyond the reach and control of petitioner.

In sum, this Court finds petitioner Rodolfo Espano guilty beyond reasonable doubt of violating Article II, Section 8, in relation to Section 2 (e-L) (I) of Republic Act No. 6425, as amended. Under the said provision, the penalty imposed is six years and one day to twelve years and a fine ranging from six thousand to twelve thousand pesos. With the passage of Republic Act No. 7659, which took effect on December 31, 1993, the imposable penalty shall now depend on the quantity of drugs recovered. Under the provisions of Republic Act No. 7629, Section 20, and as interpreted in People v. Simon¹³ and People v. Lara,¹⁴ if the quantity of marijuana involved is less than 750 grams, the imposable penalty ranges from prision correccional to reclusion temporal. Taking into consideration that petitioner is not a habitual delinquent, the amendatory provision is favorable to him and the quantity of marijuana involved is less than 750 grams, the penalty imposed under Republic Act No. 7659 should be applied. There being no mitigating nor aggravating circumstances, the imposable penalty shall be prision correccional in its medium period. Applying the Indeterminate Sentence Law, the maximum penalty shall be taken from the medium period of prision correccional, which is two (2) years, four (4) months and one (1) day to four (4) years and two (2) months, while the minimum shall be taken from the penalty next lower in degree, which is one (1) month and one (1) day to six (6) months of arresto mayor.

WHEREFORE, the instant petition is hereby DENIED. The decision of the Court of Appeals in C.A.-G.R. CR No. 13976 dated January 16, 1995 is AFFIRMED with the MODIFICATION that petitioner Rodolfo Espano is sentenced to suffer an indeterminate penalty of TWO (2) months and ONE (1) day of arresto mayor, as minimum to TWO (2) years, FOUR (4) months and ONE (1) day of prision correccional, as maximum.

SO ORDERED.

RULE 113 - ARREST

Section 1. Definition of arrest. – Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense.

Sec. 2. Arrest; how made. – An arrest is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest.

    No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention.

    Sec. 3. Duty of arresting officer. – It shall be the duty of the officer executing the warrant to arrest the accused and deliver him to the nearest police station or jail without unnecessary delay.

    Sec. 4. Execution of warrant. – The head of the office to whom the warrant of arrest was delivered for execution shall cause the warrant to be executed within ten (10) days from its receipt. Within ten (10) days after the expiration of the period, the officer to whom it was assigned for execution shall make a report to the judge who issued the warrant. In case of his failure to execute the warrant, he shall state the reason therefore.

    Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.

Sec. 6. Time of making arrest. – An arrest may be made on any day and at any time of the day or night.

Sec. 7. Method of arrest by officer by virtue of warrant.
– When making an arrest by virtue of a warrant, the officer shall inform the person to be arrested of the cause of the arrest and the fact that a warrant has been issued for his arrest, except when he flees or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest. The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable.chan robles virtual law library

Sec. 8. Method of arrest by officer without warrant. – When making an arrest without a warrant, the officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, has escaped, flees, or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest.

Sec. 9. Method of arrest by private person. – When making an arrest, a private person shall inform the person to be arrested of the intention to arrest him and the case of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, or has escaped, flees, or forcibly resists before the person making the arrest has opportunity to so inform him, or when the giving of such information will imperil the arrest.

Sec. 10. Officer may summon assistance. – An officer making a lawful arrest may orally summon as many persons as he deems necessary to assist him in effecting the arrest. Every person so summoned by an officer shall assist him in effecting the arrest when he can render such assistance without detriment to himself.

Sec. 11. Right of officer to break into building or enclosure. – An officer, in order to make an arrest either by virtue of a warrant, or without a warrant as provided in section 5, may break into any building or enclosure where the person to be arrested is or is reasonably believed to be, if he is refused admittance thereto, after announcing his authority and purpose.

Sec. 12. Right to break out from building or enclosure. – Whenever an officer has entered the building or enclosure in accordance with the preceding section, he may break out therefrom when necessary to liberate himself.

Sec. 13. Arrest after escape or rescue. – If a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines.

Sec. 14. Right of attorney or relative to visit person arrested. – Any member of the Philippine Bar shall, at the request of the person arrested or of another acting in his behalf, have the right to visit and confer privately with such person in the jail or any other place of custody at any hour of the day or night. Subject to reasonable regulations, a relative of the person arrested can also exercise the same right.

RULE 126 - SEARCH AND SEIZURE

Section 1. Search warrant defined. – A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court.

Sec. 2. Court where application for search warrant shall be filed. – An application for search warrant shall be filed with the following:

(a) Any court within whose territorial jurisdiction a crime was committed.chan robles virtual law library

(b) For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced.

However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending.

Sec. 3. Personal property to be seized. – A search warrant may be issued for the search and seizure of personal property:

(a) Subject of the offense;

(b) Stolen or embezzled and other proceeds, or fruits of the offense; or

(c) Used or intended to be used as the means of committing an offense.

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.

Sec. 6. Issuance and form of search warrant. – If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules.

Sec. 7. Right to break door or window to effect search. – The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant to liberate himself or any person lawfully aiding him when unlawfully detained therein.

Sec. 8. Search of house, room, or premises to be made in presence of two witnesses. – No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality.chan robles virtual law library

Sec. 9. Time of making search. – The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night.

Sec. 10. Validity of search warrant. – A search warrant shall be valid for ten (10) days from its date. Thereafter, it shall be void.

Sec. 11. Receipt for the property seized. – The officer seizing the property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property.

Sec. 12. Delivery of property and inventory thereof to court; return and proceedings thereon. – (a) The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath.

(b) Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge shall ascertain whether section 11 of this Rule has been complied with and shall require that the property seized be delivered to him. The judge shall see to it that subsection (a) hereof has been complied with.

(c) The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge.

A violation of this section shall constitute contempt of court.

Sec. 13. Search incident to lawful arrest. – A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant.

Sec. 14. Motion to quash a search warrant or to suppress evidence; where to file. – A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court.

[i][1] Rollo, pp. 43-47.

[ii][2] Id. at 47.

[iii][3] Annex “C”, Rollo, p. 56.

[iv][4] Annex “C-1”, Id. at 57.

[v][5] Rollo, p. 93.

[vi][6] Codifying The Laws On Illegal/Unlawful Possession, Manufacture, Dealing In, Acquisition Or Disposition, Of Firearms, Ammunition Or Explosives Or Instruments Used In The Manufacture Of Firearms, Ammunition Or Explosives, And Imposing Stiffer Penalties For Certain Violations Thereof And For Relevant Purposes.

[vii][7] Rollo, p. 8.

[viii][8] Id. at 44.

[ix][9] Id. at 10.

[x][10] Id. at 185.

[xi][11] Id. at 186.

[xii][12] 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.

[xiii][13] Sec. 3. Requisites for issuing search warrant.—A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized.

[xiv][14] Sec. 10. Receipt for the property seized.—The officer seizing property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property.

[xv][15] Rollo, pp. 12-13.

[xvi][16] Annex “C”, Rollo, p. 56.

[xvii][17] Annex “C-1”, Id. at 57.

[xviii][18] 307 SCRA 253, 273 (1999).

[xix][19] Rollo, p. 92.

[xx][20] Sec. 7. Search of house, room, or premise, to be made in presence of two witnesses.—No search of a house, room, or any other premise shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, in the presence of two witnesses of sufficient age and discretion residing in the same locality.

[xxi][21] Rollo, p. 26.

[xxii][22] Id. at 56. Underscoring supplied.

[xxiii][23] Id. at 57. Underscoring supplied.

[xxiv][24] Kho vs. Makalintal, 306 SCRA 70, 77 (1999).

[xxv][25] Annex “C”, Rollo, p. 56.

[xxvi][26] Annex “C-1”, Id. at 57.

[xxvii][27] Section 1. Unlawful Manufacture, Sales, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition.—The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearms, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition.

x x x

[xxviii][28] Sec. 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives.—The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, assemble, deal in, acquire, dispose or possess handgrenade(s), rifle grenade(s), and other explosives, including but not limited to “pillbox bombs”, “molotov cocktail bombs”, “fire bombs”, or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person.

[xxix][29] Supra, note 24 at 79.

[xxx][30] Rollo, p. 30.

A Law Student's Corner

Wednesday, December 14, 2011

Cases on Search and Seizure and Arrests

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