G.R. No.

140946             September 13, 2004

MICROSOFT CORPORATION and LOTUS DEVELOPMENT CORPORATION, petitioners, 

vs.
MAXICORP, INC., respondent.

DECISION

CARPIO, J.:

The Case

This petition for review on certiorari1 seeks to reverse the Court of Appeals’ Decision2 dated 23
December 1998 and its Resolution dated 29 November 1999 in CA-G.R. SP No. 44777. The Court
of Appeals reversed the Order3 of the Regional Trial Court, Branch 23, Manila ("RTC"), denying
respondent Maxicorp, Inc.’s ("Maxicorp") motion to quash the search warrant that the RTC issued
against Maxicorp. Petitioners are the private complainants against Maxicorp for copyright
infringement under Section 29 of Presidential Decree No. 49 ("Section 29 of PD 49")4 and for unfair
competition under Article 189 of the Revised Penal Code ("RPC").5

Antecedent Facts

On 25 July 1996, National Bureau of Investigation ("NBI") Agent Dominador Samiano, Jr. ("NBI
Agent Samiano") filed several applications for search warrants in the RTC against Maxicorp for
alleged violation of Section 29 of PD 49 and Article 189 of the RPC. After conducting a preliminary
examination of the applicant and his witnesses, Judge William M. Bayhon issued Search Warrants
Nos. 96-451, 96-452, 96-453 and 96-454, all dated 25 July 1996, against Maxicorp.

Armed with the search warrants, NBI agents conducted on 25 July 1996 a search of Maxicorp’s
premises and seized property fitting the description stated in the search warrants.

On 2 September 1996, Maxicorp filed a motion to quash the search warrants alleging that there was
no probable cause for their issuance and that the warrants are in the form of "general warrants." The
RTC denied Maxicorp’s motion on 22 January 1997. The RTC also denied Maxicorp’s motion for
reconsideration.

The RTC found probable cause to issue the search warrants after examining NBI Agent Samiano,
John Benedict Sacriz ("Sacriz"), and computer technician Felixberto Pante ("Pante"). The three
testified on what they discovered during their respective visits to Maxicorp. NBI Agent Samiano also
presented certifications from petitioners that they have not authorized Maxicorp to perform the
witnessed activities using petitioners’ products.

On 24 July 1997, Maxicorp filed a petition for certiorari with the Court of Appeals seeking to set aside
the RTC’s order. On 23 December 1998, the Court of Appeals reversed the RTC’s order denying
Maxicorp’s motion to quash the search warrants. Petitioners moved for reconsideration. The Court of
Appeals denied petitioners’ motion on 29 November 1999.

The Court of Appeals held that NBI Agent Samiano failed to present during the preliminary
examination conclusive evidence that Maxicorp produced or sold the counterfeit products. The Court
of Appeals pointed out that the sales receipt NBI Agent Samiano presented as evidence that he
bought the products from Maxicorp was in the name of a certain "Joel Diaz."
Hence, this petition.

The Issues

Petitioners seek a reversal and raise the following issues for resolution:

1. WHETHER THE PETITION RAISES QUESTIONS OF LAW;

2. WHETHER PETITIONERS HAVE LEGAL PERSONALITY TO FILE THE PETITION;

3. WHETHER THERE WAS PROBABLE CAUSE TO ISSUE THE SEARCH WARRANTS;

4. WHETHER THE SEARCH WARRANTS ARE "GENERAL WARRANTS."

The Ruling of the Court

The petition has merit.

On Whether the Petition Raises Questions of Law

Maxicorp assails this petition as defective since it failed to raise questions of law. Maxicorp insists
that the arguments petitioners presented are questions of fact, which this Court should not consider
in a Rule 45 petition for review. Petitioners counter that all the issues they presented in this petition
involve questions of law. Petitioners point out that the facts are not in dispute.

A petition for review under Rule 45 of the Rules of Court should cover questions of law.6 Questions
of fact are not reviewable. As a rule, the findings of fact of the Court of Appeals are final and
conclusive and this Court will not review them on appeal,7 subject to exceptions as when the findings
of the appellate court conflict with the findings of the trial court.8

The distinction between questions of law and questions of fact is settled. A question of law exists
when the doubt or difference centers on what the law is on a certain state of facts. A question of fact
exists if the doubt centers on the truth or falsity of the alleged facts. Though this delineation seems
simple, determining the true nature and extent of the distinction is sometimes problematic. For
example, it is incorrect to presume that all cases where the facts are not in dispute automatically
involve purely questions of law.

There is a question of law if the issue raised is capable of being resolved without need of reviewing
the probative value of the evidence.9 The resolution of the issue must rest solely on what the law
provides on the given set of circumstances. Once it is clear that the issue invites a review of the
evidence presented, the question posed is one of fact.10 If the query requires a re-evaluation of the
credibility of witnesses, or the existence or relevance of surrounding circumstances and their relation
to each other, the issue in that query is factual.11 Our ruling in Paterno v. Paterno12 is illustrative on
this point:

Such questions as whether certain items of evidence should be accorded probative value or
weight, or rejected as feeble or spurious, or whether or not the proofs on one side or the
other are clear and convincing and adequate to establish a proposition in issue, are without
doubt questions of fact. Whether or not the body of proofs presented by a party, weighed
and analyzed in relation to contrary evidence submitted by adverse party, may be said to be
strong, clear and convincing; whether or not certain documents presented by one side
 should be accorded full faith and credit in the face of protests as to their spurious character
by the other side; whether or not inconsistencies in the body of proofs of a party are of such
gravity as to justify refusing to give said proofs weight – all these are issues of fact.

It is true that Maxicorp did not contest the facts alleged by petitioners. But this situation does
not automatically transform all issues raised in the petition into questions of law. The issues
must meet the tests outlined in Paterno.

Of the three main issues raised in this petition – the legal personality of the petitioners, the
nature of the warrants issued and the presence of probable cause – only the first two qualify
as questions of law. The pivotal issue of whether there was probable cause to issue the
search warrants is a question of fact. At first glance, this issue appears to involve a question
of law since it does not concern itself with the truth or falsity of certain facts. Still, the
resolution of this issue would require this Court to inquire into the probative value of the
evidence presented before the RTC. For a question to be one of law, it must not involve an
examination of the probative value of the evidence presented by the litigants or any of
them.13

Yet, this is precisely what the petitioners ask us to do by raising arguments requiring an examination
of the TSNs and the documentary evidence presented during the search warrant proceedings. In
short, petitioners would have us substitute our own judgment to that of the RTC and the Court of
Appeals by conducting our own evaluation of the evidence. This is exactly the situation which
Section 1, Rule 45 of the Rules of Court prohibits by requiring the petition to raise only questions of
law. This Court is not a trier of facts. It is not the function of this court to analyze or weigh
evidence.14 When we give due course to such situations, it is solely by way of exception. Such
exceptions apply only in the presence of extremely meritorious circumstances.15

Indeed, this case falls under one of the exceptions because the findings of the Court of Appeals
conflict with the findings of the RTC.16 Since petitioners properly raised the conflicting findings of the
lower courts, it is proper for this Court to resolve such contradiction.

On Whether Petitioners have the Legal Personality to File this Petition

Maxicorp argues that petitioners have no legal personality to file this petition since the proper party
to do so in a criminal case is the Office of the Solicitor General as representative of the People of the
Philippines. Maxicorp states the general rule but the exception governs this case.17 We ruled
in Columbia Pictures Entertainment, Inc. v. Court of Appeals 18 that the petitioner-complainant in
a petition for review under Rule 45 could argue its case before this Court in lieu of the Solicitor
General if there is grave error committed by the lower court or lack of due process. This avoids a
situation where a complainant who actively participated in the prosecution of a case would suddenly
find itself powerless to pursue a remedy due to circumstances beyond its control. The circumstances
in Columbia Pictures Entertainment are sufficiently similar to the present case to warrant the
application of this doctrine.

On Whether there was Probable Cause to Issue the Search Warrants

Petitioners argue that the Court of Appeals erred in reversing the RTC based on the fact that the
sales receipt was not in the name of NBI Agent Samiano. Petitioners point out that the Court of
Appeals disregarded the overwhelming evidence that the RTC considered in determining the
existence of probable cause. Maxicorp counters that the Court of Appeals did not err in reversing the
RTC. Maxicorp maintains that the entire preliminary examination that the RTC conducted was
defective.
The Court of Appeals based its reversal on two factual findings of the RTC. First, the fact that the
sales receipt presented by NBI Agent Samiano as proof that he bought counterfeit goods from
Maxicorp was in the name of a certain "Joel Diaz." Second, the fact that petitioners’ other witness,
John Benedict Sacriz, admitted that he did not buy counterfeit goods from Maxicorp.

We rule that the Court of Appeals erred in reversing the RTC’s findings.

Probable cause means "such reasons, supported by facts and circumstances as will warrant a
cautious man in the belief that his action and the means taken in prosecuting it are legally just and
proper."19 Thus, probable cause for a search warrant requires such facts and circumstances that
would lead a reasonably prudent man to believe that an offense has been committed and the objects
sought in connection with that offense are in the place to be searched.20

The judge determining probable cause must do so only after personally examining under oath the
complainant and his witnesses. The oath required must refer to "the truth of the facts within
the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to
convince the committing magistrate, not the individual making the affidavit and seeking the issuance
of the warrant, of the existence of probable cause."21 The applicant must have personal knowledge of
the circumstances. "Reliable information" is insufficient.22 Mere affidavits are not enough, and the
judge must depose in writing the complainant and his witnesses.23

The Court of Appeals’ reversal of the findings of the RTC centers on the fact that the two witnesses
for petitioners during the preliminary examination failed to prove conclusively that they bought
counterfeit software from Maxicorp. The Court of Appeals ruled that this amounted to a failure to
prove the existence of a connection between the offense charged and the place searched.

The offense charged against Maxicorp is copyright infringement under Section 29 of PD 49 and
unfair competition under Article 189 of the RPC. To support these charges, petitioners presented the
testimonies of NBI Agent Samiano, computer technician Pante, and Sacriz, a civilian. The offenses
that petitioners charged Maxicorp contemplate several overt acts. The sale of counterfeit products is
but one of these acts. Both NBI Agent Samiano and Sacriz related to the RTC how they personally
saw Maxicorp commit acts of infringement and unfair competition.

During the preliminary examination, the RTC subjected the testimonies of the witnesses to the
requisite examination. NBI Agent Samiano testified that he saw Maxicorp display and offer for sale
counterfeit software in its premises. He also saw how the counterfeit software were produced and
packaged within Maxicorp’s premises. NBI Agent Samiano categorically stated that he was certain
the products were counterfeit because Maxicorp sold them to its customers without giving the
accompanying ownership manuals, license agreements and certificates of authenticity.

Sacriz testified that during his visits to Maxicorp, he witnessed several instances when Maxicorp
installed petitioners’ software into computers it had assembled. Sacriz also testified that he saw the
sale of petitioners’ software within Maxicorp’s premises. Petitioners never authorized Maxicorp to
install or sell their software.

The testimonies of these two witnesses, coupled with the object and documentary evidence they
presented, are sufficient to establish the existence of probable cause. From what they have
witnessed, there is reason to believe that Maxicorp engaged in copyright infringement and unfair
competition to the prejudice of petitioners. Both NBI Agent Samiano and Sacriz were clear and
insistent that the counterfeit software were not only displayed and sold within Maxicorp’s premises,
they were also produced, packaged and in some cases, installed there.
The determination of probable cause does not call for the application of rules and standards of proof
that a judgment of conviction requires after trial on the merits. As implied by the words themselves,
"probable cause" is concerned with probability, not absolute or even moral certainty. The
prosecution need not present at this stage proof beyond reasonable doubt. The standards of
judgment are those of a reasonably prudent man,24 not the exacting calibrations of a judge after a
full-blown trial.

No law or rule states that probable cause requires a specific kind of evidence. No formula or fixed
rule for its determination exists.25 Probable cause is determined in the light of conditions obtaining in
a given situation.26 Thus, it was improper for the Court of Appeals to reverse the RTC’s findings
simply because the sales receipt evidencing NBI Agent Samiano’s purchase of counterfeit goods is
not in his name.

For purposes of determining probable cause, the sales receipt is not the only proof that the sale of
petitioners’ software occurred. During the search warrant application proceedings, NBI Agent
Samiano presented to the judge the computer unit that he purchased from Maxicorp, in which
computer unit Maxicorp had pre-installed petitioners’ software.27 Sacriz, who was present when NBI
Agent Samiano purchased the computer unit, affirmed that NBI Agent Samiano purchased the
computer unit.28 Pante, the computer technician, demonstrated to the judge the presence of
petitioners’ software on the same computer unit.29 There was a comparison between petitioners’
genuine software and Maxicorp’s software pre-installed in the computer unit that NBI Agent
Sambiano purchased.30Even if we disregard the sales receipt issued in the name of "Joel Diaz,"
which petitioners explained was the alias NBI Agent Samiano used in the operation, there still
remains more than sufficient evidence to establish probable cause for the issuance of the search
warrants.

This also applies to the Court of Appeals’ ruling on Sacriz’s testimony. The fact that Sacriz did not
actually purchase counterfeit software from Maxicorp does not eliminate the existence of probable
cause. Copyright infringement and unfair competition are not limited to the act of selling counterfeit
goods. They cover a whole range of acts, from copying, assembling, packaging to marketing,
including the mere offering for sale of the counterfeit goods. The clear and firm testimonies of
petitioners’ witnesses on such other acts stand untarnished. The Constitution and the Rules of Court
only require that the judge examine personally and thoroughly the applicant for the warrant and his
witnesses to determine probable cause. The RTC complied adequately with the requirement of the
Constitution and the Rules of Court.

Probable cause is dependent largely on the opinion and findings of the judge who conducted the
examination and who had the opportunity to question the applicant and his witnesses.31 For this
reason, the findings of the judge deserve great weight. The reviewing court should overturn such
findings only upon proof that the judge disregarded the facts before him or ignored the clear dictates
of reason.32 Nothing in the records of the preliminary examination proceedings reveal any impropriety
on the part of the judge in this case. As one can readily see, here the judge examined thoroughly the
applicant and his witnesses. To demand a higher degree of proof is unnecessary and untimely. The
prosecution would be placed in a compromising situation if it were required to present all its
evidence at such preliminary stage. Proof beyond reasonable doubt is best left for trial.

On Whether the Search Warrants are in the Nature of General Warrants

A search warrant must state particularly the place to be searched and the objects to be seized. The
evident purpose for this requirement is to limit the articles to be seized only to those particularly
described in the search warrant. This is a protection against potential abuse. It is necessary to leave
the officers of the law with no discretion regarding what articles they shall seize, to the end that no
unreasonable searches and seizures be committed.33

In addition, under Section 4, Rule 126 of the Rules of Criminal Procedure, a search warrant shall
issue "in connection with one specific offense." The articles described must bear a direct relation to
the offense for which the warrant is issued.34 Thus, this rule requires that the warrant must state that
the articles subject of the search and seizure are used or intended for use in the commission of a
specific offense.

Maxicorp argues that the warrants issued against it are too broad in scope and lack the specificity
required with respect to the objects to be seized. After examining the wording of the warrants issued,
the Court of Appeals ruled in favor of Maxicorp and reversed the RTC’s Order thus:

Under the foregoing language, almost any item in the petitioner’s store can be seized on the
ground that it is "used or intended to be used" in the illegal or unauthorized copying or
reproduction of the private respondents’ software and their manuals.35

The Court of Appeals based its reversal on its perceived infirmity of paragraph (e) of the search
warrants the RTC issued. The appellate court found that similarly worded warrants, all of which
noticeably employ the phrase "used or intended to be used," were previously held void by this
Court.36 The disputed text of the search warrants in this case states:

a) Complete or partially complete reproductions or copies of Microsoft software bearing the

Microsoft copyrights and/or trademarks owned by MICROSOFT CORPORATION contained
in CD-ROMs, diskettes and hard disks;

b) Complete or partially complete reproductions or copies of Microsoft instruction manuals

and/or literature bearing the Microsoft copyrights and/or trademarks owned by MICROSOFT
CORPORATION;

c) Sundry items such as labels, boxes, prints, packages, wrappers, receptacles,

advertisements and other paraphernalia bearing the copyrights and/or trademarks owned by
MICROSOFT CORPORATION;

d) Sales invoices, delivery receipts, official receipts, ledgers, journals, purchase orders and
all other books of accounts and documents used in the recording of the reproduction and/or
assembly, distribution and sales, and other transactions in connection with fake or counterfeit
products bearing the Microsoft copyrights and/or trademarks owned by MICROSOFT
CORPORATION;

e) Computer hardware, including central processing units including hard disks, CD-
ROM drives, keyboards, monitor screens and diskettes, photocopying machines and
other equipment or paraphernalia used or intended to be used in the illegal and
unauthorized copying or reproduction of Microsoft software and their manuals, or
which contain, display or otherwise exhibit, without the authority of MICROSOFT
CORPORATION, any and all Microsoft trademarks and copyrights; and

f) Documents relating to any passwords or protocols in order to access all computer hard
drives, data bases and other information storage devices containing unauthorized Microsoft
software.37 (Emphasis supplied)
It is only required that a search warrant be specific as far as the circumstances will ordinarily
allow.38 The description of the property to be seized need not be technically accurate or precise. The
nature of the description should vary according to whether the identity of the property or its character
is a matter of concern.39 Measured against this standard we find that paragraph (e) is not a general
warrant. The articles to be seized were not only sufficiently identified physically, they were also
specifically identified by stating their relation to the offense charged. Paragraph (e) specifically refers
to those articles used or intended for use in the illegal and unauthorized copying of petitioners’
software. This language meets the test of specificity.40

The cases cited by the Court of Appeals are inapplicable. In those cases, the Court found the
warrants too broad because of particular circumstances, not because of the mere use of the phrase
"used or intended to be used." In Columbia Pictures, Inc. v. Flores, the warrants ordering the
seizure of "television sets, video cassette recorders, rewinders and tape cleaners x x x" were found
too broad since the defendant there was a licensed distributor of video tapes.41 The mere presence
of counterfeit video tapes in the defendant’s store does not mean that the machines were used to
produce the counterfeit tapes. The situation in this case is different. Maxicorp is not a licensed
distributor of petitioners. In Bache & Co. (Phil.), Inc., et al. v. Judge Ruiz, et al., the Court voided
the warrants because they authorized the seizure of records pertaining to "all business transactions"
of the defendant.42And in 20th Century Fox Film Corp. v. Court of Appeals, the Court quashed the
warrant because it merely gave a list of articles to be seized, aggravated by the fact that such
appliances are "generally connected with the legitimate business of renting out betamax tapes."43

However, we find paragraph (c) of the search warrants lacking in particularity. Paragraph (c) states:

c) Sundry items such as labels, boxes, prints, packages, wrappers, receptacles,

advertisements and other paraphernalia bearing the copyrights and/or trademarks owned by
MICROSOFT CORPORATION;

The scope of this description is all-embracing since it covers property used for personal or other
purposes not related to copyright infringement or unfair competition. Moreover, the description
covers property that Maxicorp may have bought legitimately from Microsoft or its licensed
distributors. Paragraph (c) simply calls for the seizure of all items bearing the Microsoft logo, whether
legitimately possessed or not. Neither does it limit the seizure to products used in copyright
infringement or unfair competition.

Still, no provision of law exists which requires that a warrant, partially defective in specifying some
items sought to be seized yet particular with respect to the other items, should be nullified as a
whole. A partially defective warrant remains valid as to the items specifically described in the
warrant.44 A search warrant is severable, the items not sufficiently described may be cut off without
destroying the whole warrant.45 The exclusionary rule found in Section 3(2) of Article III of the
Constitution renders inadmissible in any proceeding all evidence obtained through unreasonable
searches and seizure. Thus, all items seized under paragraph (c) of the search warrants, not falling
under paragraphs a, b, d, e or f, should be returned to Maxicorp.

WHEREFORE, we PARTIALLY GRANT the instant petition. The Decision of the Court of Appeals

dated 23 December 1998 and its Resolution dated 29 November 1999 in CA-G.R. SP No. 44777
are REVERSED and SET ASIDE except with respect to articles seized under paragraph (c) of
Search Warrants Nos. 96-451, 96-452, 96-453 and 96-454. All articles seized under paragraph (c) of
the search warrants, not falling under paragraphs a, b, d, e or f, are ordered returned to Maxicorp,
Inc. immediately.

SO ORDERED.
Davide, Jr., Quisumbing, Ynares-Santiago, and Azcuna, JJ., concur.

G.R. No. L-64261 December 26, 1984

JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS MEDIA
SERVICES, INC., petitioners, 
vs.
THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF, PHILIPPINE
CONSTABULARY, THE CHIEF LEGAL OFFICER, PRESIDENTIAL SECURITY COMMAND, THE
JUDGE ADVOCATE GENERAL, ET AL., respondents.

Lorenzo M. Tañada, Wigberto E. Tañada, Martiniano Vivo, Augusto Sanchez, Joker P. Arroyo,
Jejomar Binay and Rene Saguisag for petitioners.

The Solicitor General for respondents.

ESCOLIN, J.:

Assailed in this petition for certiorari prohibition and mandamus with preliminary mandatory and
prohibitory injunction is the validity of two [2] search warrants issued on December 7, 1982 by
respondent Judge Ernani Cruz-Pano, Executive Judge of the then Court of First Instance of Rizal
[Quezon City], under which the premises known as No. 19, Road 3, Project 6, Quezon City, and 784
Units C & D, RMS Building, Quezon Avenue, Quezon City, business addresses of the "Metropolitan
Mail" and "We Forum" newspapers, respectively, were searched, and office and printing machines,
equipment, paraphernalia, motor vehicles and other articles used in the printing, publication and
distribution of the said newspapers, as well as numerous papers, documents, books and other
written literature alleged to be in the possession and control of petitioner Jose Burgos, Jr. publisher-
editor of the "We Forum" newspaper, were seized.

Petitioners further pray that a writ of preliminary mandatory and prohibitory injunction be issued for
the return of the seized articles, and that respondents, "particularly the Chief Legal Officer,
Presidential Security Command, the Judge Advocate General, AFP, the City Fiscal of Quezon City,
their representatives, assistants, subalterns, subordinates, substitute or successors" be enjoined
from using the articles thus seized as evidence against petitioner Jose Burgos, Jr. and the other
accused in Criminal Case No. Q- 022782 of the Regional Trial Court of Quezon City, entitled People
v. Jose Burgos, Jr. et al. 1

In our Resolution dated June 21, 1983, respondents were required to answer the petition. The plea for preliminary mandatory and prohibitory
injunction was set for hearing on June 28, 1983, later reset to July 7, 1983, on motion of the Solicitor General in behalf of respondents.

At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners' prayer for a writ of
preliminary mandatory injunction, manifested that respondents "will not use the aforementioned
articles as evidence in the aforementioned case until final resolution of the legality of the seizure of
the aforementioned articles. ..."   With this manifestation, the prayer for preliminary prohibitory
2

injunction was rendered moot and academic.

Respondents would have this Court dismiss the petition on the ground that petitioners had come to
this Court without having previously sought the quashal of the search warrants before respondent
judge. Indeed, petitioners, before impugning the validity of the warrants before this Court, should
have filed a motion to quash said warrants in the court that issued them.   But this procedural flaw
3

notwithstanding, we take cognizance of this petition in view of the seriousness and urgency of the
constitutional issues raised not to mention the public interest generated by the search of the "We
Forum" offices, which was televised in Channel 7 and widely publicized in all metropolitan dailies.
The existence of this special circumstance justifies this Court to exercise its inherent power to
suspend its rules. In the words of the revered Mr. Justice Abad Santos in the case of C. Vda. de
Ordoveza v. Raymundo,   "it is always in the power of the court [Supreme Court] to suspend its rules
4

or to except a particular case from its operation, whenever the purposes of justice require it...".

Respondents likewise urge dismissal of the petition on ground of laches. Considerable stress is laid
on the fact that while said search warrants were issued on December 7, 1982, the instant petition
impugning the same was filed only on June 16, 1983 or after the lapse of a period of more than six
[6] months.

Laches is failure or negligence for an unreasonable and unexplained length of time to do that which,
by exercising due diligence, could or should have been done earlier. It is negligence or omission to
assert a right within a reasonable time, warranting a presumption that the party entitled to assert it
either has abandoned it or declined to assert it. 5

Petitioners, in their Consolidated Reply, explained the reason for the delay in the filing of the petition
thus:

Respondents should not find fault, as they now do [p. 1, Answer, p. 3, Manifestation]
with the fact that the Petition was filed on June 16, 1983, more than half a year after
the petitioners' premises had been raided.

The climate of the times has given petitioners no other choice. If they had waited this
long to bring their case to court, it was because they tried at first to exhaust other
remedies. The events of the past eleven fill years had taught them that everything in
this country, from release of public funds to release of detained persons from
custody, has become a matter of executive benevolence or largesse

Hence, as soon as they could, petitioners, upon suggestion of persons close to the
President, like Fiscal Flaminiano, sent a letter to President Marcos, through counsel
Antonio Coronet asking the return at least of the printing equipment and vehicles.
And after such a letter had been sent, through Col. Balbino V. Diego, Chief
Intelligence and Legal Officer of the Presidential Security Command, they were
further encouraged to hope that the latter would yield the desired results.

After waiting in vain for five [5] months, petitioners finally decided to come to Court.
[pp. 123-124, Rollo]

Although the reason given by petitioners may not be flattering to our judicial system, We find no
ground to punish or chastise them for an error in judgment. On the contrary, the extrajudicial efforts
exerted by petitioners quite evidently negate the presumption that they had abandoned their right to
the possession of the seized property, thereby refuting the charge of laches against them.

Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used and marked as
evidence some of the seized documents in Criminal Case No. Q- 022872, he is now estopped from
challenging the validity of the search warrants. We do not follow the logic of respondents. These
documents lawfully belong to petitioner Jose Burgos, Jr. and he can do whatever he pleases with
them, within legal bounds. The fact that he has used them as evidence does not and cannot in any
way affect the validity or invalidity of the search warrants assailed in this petition.

Several and diverse reasons have been advanced by petitioners to nullify the search warrants in
question.

1. Petitioners fault respondent judge for his alleged failure to conduct an examination under oath or
affirmation of the applicant and his witnesses, as mandated by the above-quoted constitutional
provision as wen as Sec. 4, Rule 126 of the Rules of Court .  This objection, however, may properly
6

be considered moot and academic, as petitioners themselves conceded during the hearing on
August 9, 1983, that an examination had indeed been conducted by respondent judge of Col.
Abadilla and his witnesses.

2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two distinct places: No. 19,
Road 3, Project 6, Quezon City and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City,
respectively. Objection is interposed to the execution of Search Warrant No. 20-82[b] at the latter
address on the ground that the two search warrants pinpointed only one place where petitioner Jose
Burgos, Jr. was allegedly keeping and concealing the articles listed therein, i.e., No. 19, Road 3,
Project 6, Quezon City. This assertion is based on that portion of Search Warrant No. 20- 82[b]
which states:

Which have been used, and are being used as instruments and means of committing
the crime of subversion penalized under P.D. 885 as amended and he is keeping
and concealing the same at 19 Road 3, Project 6, Quezon City.

The defect pointed out is obviously a typographical error. Precisely, two search warrants were
applied for and issued because the purpose and intent were to search two distinct premises. It would
be quite absurd and illogical for respondent judge to have issued two warrants intended for one and
the same place. Besides, the addresses of the places sought to be searched were specifically set
forth in the application, and since it was Col. Abadilla himself who headed the team which executed
the search warrants, the ambiguity that might have arisen by reason of the typographical error is
more apparent than real. The fact is that the place for which Search Warrant No. 20- 82[b] was
applied for was 728 Units C & D, RMS Building, Quezon Avenue, Quezon City, which address
appeared in the opening paragraph of the said warrant.   Obviously this is the same place that
7

respondent judge had in mind when he issued Warrant No. 20-82 [b].

In the determination of whether a search warrant describes the premises to be searched with
sufficient particularity, it has been held "that the executing officer's prior knowledge as to the place
intended in the warrant is relevant. This would seem to be especially true where the executing officer
is the affiant on whose affidavit the warrant had issued, and when he knows that the judge who
issued the warrant intended the building described in the affidavit, And it has also been said that the
executing officer may look to the affidavit in the official court file to resolve an ambiguity in the
warrant as to the place to be searched." 8

3. Another ground relied upon to annul the search warrants is the fact that although the warrants
were directed against Jose Burgos, Jr. alone, articles b belonging to his co-petitioners Jose Burgos,
Sr., Bayani Soriano and the J. Burgos Media Services, Inc. were seized.

Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be seized
under a search warrant, to wit:
 Sec. 2. Personal Property to be seized. — A search warrant may be issued for the
search and seizure of the following personal property:

[a] Property subject of the offense;

[b] Property stolen or embezzled and other proceeds or fruits of the

offense; and

[c] Property used or intended to be used as the means of committing

an offense.

The above rule does not require that the property to be seized should be owned by the person
against whom the search warrant is directed. It may or may not be owned by him. In fact, under
subsection [b] of the above-quoted Section 2, one of the properties that may be seized is stolen
property. Necessarily, stolen property must be owned by one other than the person in whose
possession it may be at the time of the search and seizure. Ownership, therefore, is of no
consequence, and it is sufficient that the person against whom the warrant is directed has control or
possession of the property sought to be seized, as petitioner Jose Burgos, Jr. was alleged to have in
relation to the articles and property seized under the warrants.

4. Neither is there merit in petitioners' assertion that real properties were seized under the disputed
warrants. Under Article 415[5] of the Civil Code of the Philippines, "machinery, receptables,
instruments or implements intended by the owner of the tenement for an industry or works which
may be carried on in a building or on a piece of land and which tend directly to meet the needs of the
said industry or works" are considered immovable property. In Davao Sawmill Co. v. Castillo  where 9

this legal provision was invoked, this Court ruled that machinery which is movable by nature
becomes immobilized when placed by the owner of the tenement, property or plant, but not so when
placed by a tenant, usufructuary, or any other person having only a temporary right, unless such
person acted as the agent of the owner.

In the case at bar, petitioners do not claim to be the owners of the land and/or building on which the
machineries were placed. This being the case, the machineries in question, while in fact bolted to
the ground remain movable property susceptible to seizure under a search warrant.

5. The questioned search warrants were issued by respondent judge upon application of Col.
Rolando N. Abadilla Intelligence Officer of the P.C. Metrocom.  The application was accompanied by
10

the Joint Affidavit of Alejandro M. Gutierrez and Pedro U. Tango, 11 members of the Metrocom Intelligence and
Security Group under Col. Abadilla which conducted a surveillance of the premises prior to the filing of the application for the search warrants
on December 7, 1982.

It is contended by petitioners, however, that the abovementioned documents could not have
provided sufficient basis for the finding of a probable cause upon which a warrant may validly issue
in accordance with Section 3, Article IV of the 1973 Constitution which provides:

SEC. 3. ... and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined by the judge, or such other responsible officer as
may be authorized by law, 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.

We find petitioners' thesis impressed with merit. Probable cause for a search is defined as such facts
and circumstances which would lead a reasonably discreet and prudent man to believe that an
offense has been committed and that the objects sought in connection with the offense are in the
place sought to be searched. And when the search warrant applied for is directed against a
newspaper publisher or editor in connection with the publication of subversive materials, as in the
case at bar, the application and/or its supporting affidavits must contain a specification, stating with
particularity the alleged subversive material he has published or is intending to publish. Mere
generalization will not suffice. Thus, the broad statement in Col. Abadilla's application that petitioner
"is in possession or has in his control printing equipment and other paraphernalia, news publications
and other documents which were used and are all continuously being used as a means of
committing the offense of subversion punishable under Presidential Decree 885, as amended ..." 12 is
a mere conclusion of law and does not satisfy the requirements of probable cause. Bereft of such particulars as would justify a finding of the
existence of probable cause, said allegation cannot serve as basis for the issuance of a search warrant and it was a grave error for
respondent judge to have done so.

Equally insufficient as basis for the determination of probable cause is the statement contained in
the joint affidavit of Alejandro M. Gutierrez and Pedro U. Tango, "that the evidence gathered and
collated by our unit clearly shows that the premises above- mentioned and the articles and things
above-described were used and are continuously being used for subversive activities in conspiracy
with, and to promote the objective of, illegal organizations such as the Light-a-Fire Movement,
Movement for Free Philippines, and April 6 Movement." 13

In mandating that "no warrant shall issue except upon probable cause to be determined by the
judge, ... after examination under oath or affirmation of the complainant and the witnesses he may
produce; 14 the Constitution requires no less than personal knowledge by the complainant or his witnesses of the facts upon which the
issuance of a search warrant may be justified. In Alvarez v. Court of First Instance, 15 this Court ruled that "the oath required must refer to
the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the
committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause."
As couched, the quoted averment in said joint affidavit filed before respondent judge hardly meets the test of sufficiency established by this
Court in Alvarez case.

Another factor which makes the search warrants under consideration constitutionally objectionable is
that they are in the nature of general warrants. The search warrants describe the articles sought to
be seized in this wise:

1] All printing equipment, paraphernalia, paper, ink, photo (equipment, typewriters,

cabinets, tables, communications/recording equipment, tape recorders, dictaphone
and the like used and/or connected in the printing of the "WE FORUM" newspaper
and any and all documents communication, letters and facsimile of prints related to
the "WE FORUM" newspaper.

2] Subversive documents, pamphlets, leaflets, books, and other publication to

promote the objectives and piurposes of the subversive organization known as
Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement; and,

3] Motor vehicles used in the distribution/circulation of the "WE FORUM" and other
subversive materials and propaganda, more particularly,

1] Toyota-Corolla, colored yellow with Plate No. NKA 892;

2] DATSUN pick-up colored white with Plate No. NKV 969

3] A delivery truck with Plate No. NBS 524;

4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and,

 5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with
marking "Bagong Silang."

In Stanford v. State of Texas 16 the search warrant which authorized the search for "books, records, pamphlets, cards, receipts,
lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party in Texas," was declared void by the
U.S. Supreme Court for being too general. In like manner, directions to "seize any evidence in connectionwith the violation of SDC 13-3703
or otherwise" have been held too general, and that portion of a search warrant which authorized the seizure of any "paraphernalia which
could be used to violate Sec. 54-197 of the Connecticut General Statutes [the statute dealing with the crime of conspiracy]" was held to be a
general warrant, and therefore invalid. 17 The description of the articles sought to be seized under the search warrants in question cannot be
characterized differently.

In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in English history: the
era of disaccord between the Tudor Government and the English Press, when "Officers of the Crown
were given roving commissions to search where they pleased in order to suppress and destroy the
literature of dissent both Catholic and Puritan Reference herein to such historical episode would not
be relevant for it is not the policy of our government to suppress any newspaper or publication that
speaks with "the voice of non-conformity" but poses no clear and imminent danger to state security.

As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum newspapers. As a consequence of the search and seizure,
these premises were padlocked and sealed, with the further result that the printing and publication of
said newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the
press guaranteed under the fundamental law, 18 and constitutes a virtual denial of petitioners' freedom to express
themselves in print. This state of being is patently anathematic to a democratic framework where a free, alert and even militant press is
essential for the political enlightenment and growth of the citizenry.

Respondents would justify the continued sealing of the printing machines on the ground that they
have been sequestered under Section 8 of Presidential Decree No. 885, as amended, which
authorizes "the sequestration of the property of any person, natural or artificial, engaged in
subversive activities against the government and its duly constituted authorities ... in accordance
with implementing rules and regulations as may be issued by the Secretary of National Defense." It
is doubtful however, if sequestration could validly be effected in view of the absence of any
implementing rules and regulations promulgated by the Minister of National Defense.

Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no less than
President Marcos himself denied the request of the military authorities to sequester the property
seized from petitioners on December 7, 1982. Thus:

The President denied a request flied by government prosecutors for sequestration of

the WE FORUM newspaper and its printing presses, according to Information
Minister Gregorio S. Cendana.

On the basis of court orders, government agents went to the We Forum offices in
Quezon City and took a detailed inventory of the equipment and all materials in the
premises.

Cendaña said that because of the denial the newspaper and its equipment remain at
the disposal of the owners, subject to the discretion of the court. 19

That the property seized on December 7, 1982 had not been sequestered is further confirmed by the reply of then Foreign Minister Carlos P.
Romulo to the letter dated February 10, 1983 of U.S. Congressman Tony P. Hall addressed to President Marcos, expressing alarm over the
"WE FORUM " case. 20 In this reply dated February 11, 1983, Minister Romulo stated:
 2. Contrary to reports, President Marcos turned down the recommendation of our
authorities to close the paper's printing facilities and confiscate the equipment and
materials it uses. 
21

IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b] issued by respondent
judge on December 7, 1982 are hereby declared null and void and are accordingly set aside. The
prayer for a writ of mandatory injunction for the return of the seized articles is hereby granted and all
articles seized thereunder are hereby ordered released to petitioners. No costs.

SO ORDERED.

Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana, Relova, Gutierrez,
Jr., De la Fuente and Cuevas, JJ., concur.

Aquino, 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,  with the crime of Rape with
2

Homicide. Forthwith, the Department of Justice formed a panel of prosecutors headed by Assistant
Chief State Prosecutor Jovencio R. Zuño to conduct the preliminary investigation  of those charged
3

with the rape and killing on June 30, 1991 of Carmela N. Vizconde;  her mother Estrellita Nicolas-
4
Vizconde,  and her sister Anne Marie Jennifer  in their home at Number 80 W. Vinzons, St., BF
5 6

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;  (2) the sworn statements of two (2) of the former housemaids of the Webb family in the
7

persons of Nerissa E. Rosales and Mila S.Gaviola;  (3) the sworn-statement of Carlos

8

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;  (5) the sworn
9

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).  The genital examination of Carmela confirmed the
10

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.;

(c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October 7,
1991);

(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.   His alibi was corroborated by Honesto Aragon, Lecinia Edrosolano, Sylvia Climaco, Gina
12

Roque, Sonia Rodriguez, Edgardo Venture and Pamela Francisco.  To further support his defense,
13

he submitted documentary evidence that he bought a bicycle and a 1986 Toyota car while in the
United States on said dates  and that he was issued by the State of California Driver's License No.
14

A8818707 on June 14, 1991.  Petitioner Webb likewise submitted the letter dated July 25, 1995 of
15

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.  Only the respondents Joey Filart and Artemio "Dong" Ventura failed to file their counter-
16

affidavits though they were served with subpoena in their last known address.  In his sworn
17

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,  On the same date, it filed the corresponding
18

Information  against petitioners and their co-accused with the Regional Trial Court of Parañaque.
19

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 . . ."  An arrest without a probable cause is an unreasonable seizure of a person, and violates
20

the privacy of persons which ought not to be intruded by the State.  Probable cause to warrant
21

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.  Other jurisdictions 22

utilize the term man of reasonable caution 23 or the term ordinarily prudent and cautious man.  The terms are legally
24

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
counsel  and consists of six (6) pages, in single space reciting in rich details how the crime was
28

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

xxx xxx xxx

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

xxx xxx xxx

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.

xxx xxx xxx

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,  while probable cause
31

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.

II

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:  "It is generally assumed that the same quantum of evidence is required
32

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:

xxx xxx xxx

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,  thus:
33

xxx xxx xxx

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 law  repudiate the
34

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
Birrer  as well as the counter-affidavits of the petitioners. Apparently, the painstaking recital
35

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. Diokno  is misplaced. Our Allado ruling is

37

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:
 xxx xxx xxx

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;

(c) there is no other direct evidence available for the proper prosecution of the
offense committed;

(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:

xxx xxx xxx

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 119 which gives the court the prerogative to
38

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. Section 9 of Rule 119 does not support the
39

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."  Petitioner Webb's challenge to the validity of R.A. No. 6981
40

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.  Sections 10 and 11 of Rule 117 do provide an accused the right to
41

move for a bill of particulars and for production or inspection of material evidence in
possession of the prosecution.  But these provisions apply after the filing of the Complaint or
42

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.  As this Court emphasized
44
in Rolito Go vs. Court of Appeals,  "the right to have a preliminary investigation conducted
45

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.  As petitioners admit, 50

the DOJ Panel accepted the original of Alfaro's April 28, 1995 sworn statement as a part of
their evidence.  Petitioners thus had the fair chance to explain to the DOJ Panel then still
51

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. On the other hand, the FBI Report while
52

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,  it was
53

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.,  we held that to warrant a finding of prejudicial
54

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.  The Court
55

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.

G.R. No. 140657             October 25, 2004

PEOPLE OF THE PHILIPPINES, petitioner, 

vs.
CESAR O. DELOS REYES, respondent.

DECISION

CALLEJO, SR., J.:

Before the Court is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) in
CA-G.R. SP No. 51759 granting the petition for certiorari of Cesar O. delos Reyes and nullifying
Search Warrant No. 98-905 issued on June 18, 1998 by Judge Manuela F. Lorenzo of the Regional
Trial Court (RTC) of Manila, Branch 43.

The Antecedents

On June 18, 1998, SPO3 Benjamin Nuguid of the Western Police District applied for a search
warrant with the RTC of Manila, Branch 43, against Cesar Reyes alias "Cesar Itlog." In support of his
application, Nuguid submitted his affidavit and that of Alexis Tan, a housewife. Nuguid and Tan also
testified in support of the application. After the court conducted examination of the said witnesses, it
issued on even date Search Warrant No. 98-905 authorizing the search of the house allegedly under
the possession and custody of one Cesar Reyes alias "Cesar Itlog," at No. 2600 Oroquieta Street,
Sta. Cruz, Manila, worded as follows:

SEARCH WARRANT
TO ANY PEACE OFFICER:

GREETINGS:

Upon sufficient showing of probable cause, after determination personally made by the
undersigned on examination under oath of the applicant and his witness, by means of
searching questions and answers, that respondent Cesar Reyes alias "Cesar Itlog" has in his
possession, custody and control at the house and premises at 2600 Oroquieta St., Sta. Cruz,
Manila, the following items:

a) undetermined amount of methamphetamine hydrochloride; and

b) drug paraphernalia

in violation of Republic Act No. 6425 as amended;

You are hereby commanded to make an immediate search at anytime of the day or night of
the house and premises above-mentioned and forthwith seize and take possession of the
above-cited items and to bring said items to the undersigned to be dealt with as the law
require. Further, you are required to submit the return within ten (10) days from today.

GIVEN UNDER MY HAND AND SEAL this 18th day of June 1998 at the City of Manila.

MANUELA F. LORENZO
J u d g e2
The policemen conducted a search not only of the house at No. 2600 Oroquieta Street, Sta Cruz,
Manila, which turned out to be the house of respondent Cesar delos Reyes, but also of the car and
motorcycle owned by the latter, bearing Plate Nos. UBS 463 and TA 8077, respectively. The car and
the motorcycle happened to be parked near the house.

As per the receipt of the property signed by Nuguid, the search of the house, the car and the
motorcycle yielded the following:

That in the course of orderly search at the premises of Cesar Reyes alias "Cesar Itlog,"
inside his room at the ground floor was a steel vault and when forced open it yields 13
transparent plastic bags containing [an] undetermined amount of white crystalline substance
suspected to be Methamphetamine Hydrochloride or Shabu, three (3) weighing scales
"Tamita" broad, drugs paraphernalia and 38 pcs. of Valium-10, also found atop his drawer;
a .9mm "Smith & Wesson" pistol, Model 39mm with SN-A643638 with magazines loaded
with ammo, one (1) loaded magazine of 9mm and 36 rounds of .25 cal. ammunition inside
his drawer, one (1) plastic transparent bag containing white crystalline substance suspected
to be Methamphetamine Hydrochloride or Shabu and three (3) 12-gauge shotgun ammo. His
personal car, a black VITARA bearing plate No. UBS 463 parked beside his house was also
search[ed] in the presence of [a] Bgy. Kagawad and found inside tucked beneath the driver’s
seat are three (3) sealed transparent plastic bags containing white crystalline substance
wrapped in a mail envelope suspected to be Methamphetamine Hydrochloride or Shabu and
in his sport Honda Motorcycle 900cc with plate No. TA 8077 also yields one (1) transparent
plastic sachet containing white crystalline substance suspected to be Methamphetamine
Hydrochloride or Shabu at the motorbike back compartment.3

According to the Certification prepared by the NBI Forensic Chemistry Division, the crystalline
substances contained in the transparent plastic bags which were seized in the respondent’s house,
car and motorcycle tested positive for methamphetamine hydrochloride.4

Thereafter, two Informations were filed with the RTC of Manila, Branch 41, against the respondent
for violation of Republic Act No. 6425, as amended by Rep. Act No. 8294, docketed as Criminal
Cases Nos. 98-165628 and 98-165629, viz:

That on or about June 18, 1998, in the City of Manila, Philippines, the said accused without
being authorized by law to possess or use any regulated drug, did then and there willfully,
unlawfully and knowingly have in his possession and under his custody and control eighteen
(18) transparent plastic bags (small and big) with [a] total net weight of eight hundred eighty-
six point eight (886.8) grams of white crystalline substance known as "shabu" containing
methamphetamine hydrochloride, a regulate drug, without the corresponding license or
prescription thereof.

Contrary to law.5

That on or about June 18, 1998, in the City of Manila, Philippines, said accused did then and there
willfully, unlawfully and feloniously have in his possession and under his custody and control of one
(1) .9mm Smith & Wesson pistol, Model 39 with Serial Number-A643638 with two magazines loaded
with ammunitions, 36 rounds of .25 caliber ammunition, three (3) 12-gauge shotgun ammunitions,
without first having secured from the proper authorities the necessary license therefor.

Contrary to law.6
The respondent filed a motion to quash the informations on the following grounds: (a) as shown by
their testimony before the trial court, applicant Nuguid and his witness Tan had no personal
knowledge of the factual allegations in their affidavits which were appended to the application for a
search warrant; (b) the factual allegations contained in the said affidavits and their testimonies do
not support a finding of probable cause for violation of Rep. Act No. 6425, as amended; and (c)
Nuguid and Tan did not personally know the respondent as well as the latter’s house because first,
Tan identified the illicit drug seller as Cesar Reyes alias "Cesar Itlog" while the respondent’s name is
Cesar delos Reyes; and, second, the said witnesses described the house as consisting of a two-
storey structure with one bedroom located at Oroquieta Street, Sta. Cruz, Manila.

On August 11, 1998, the trial court issued an Order denying the respondent’s motion. The court also
denied his motion for reconsideration of said order.

The respondent forthwith filed a petition for certiorari against Nuguid and the Public Prosecutor
therein in the CA, alleging, inter alia, that the questions propounded by RTC Judge Manuela F.
Lorenzo on Nuguid and Tan were leading and not searching. He also alleged that Judge Lorenzo
delegated the examination of Tan to Nuguid, and allowed the latter to question her. He, likewise,
reiterated that Tan and Nuguid did not know him personally because they identified him as "Cesar
Reyes" when his full name was Cesar delos Reyes. Furthermore, contrary to the claim of Tan and
Nuguid that his house was a two-storey edifice located at Oroquieta Street, Sta. Cruz, Manila, said
house was only a one-storey structure located at No. 2600 Oroquieta Street, Sta. Cruz, Manila.

The respondent also assailed the search of his house, car and motorcycle on the ground that he was
not there when the search was conducted and that no barangay officials were present as required by
Section 7, Rule 126 of the 1997 Rules of Criminal Procedure.

On October 15, 1999, the CA rendered a Decision granting the petition and nullifying the search
warrant. The decretal portion reads:

WHEREFORE, all the foregoing considered, the petition is GRANTED. The questioned

Order dated January 11, 1999 as well as Search Warrant No. 98-905 dated June 18, 1998
are both hereby ANNULLED and SET ASIDE. Consequently, let a Writ of Prohibition be
issued permanently enjoining respondents from using in evidence the articles seized by
virtue of Search Warrant No. 98-905 in Criminal Case Nos. 98-165628 and 98-165629. The
seized articles obtained by virtue of Search Warrant 98-905, consisting of regulated drug,
guns and ammunitions, are hereby ORDERED delivered and turned over to the proper
authorities concerned for disposition in accordance with law.

No costs.

SO ORDERED.7

The appellate court ruled that (a) the RTC delegated its duty to determine probable cause to the
applicant; (b) the application for a search warrant was based on hearsay evidence; and (c) the
application for the search warrant issued was filed more than four (4) weeks from the alleged time
the offense took place; hence, was considered "stale."

After the denial of its motion for reconsideration of the said decision, the People of the Philippines
filed the instant petition for review of the decision, alleging that –
 THE COURT OF APPEALS [EIGHTH DIVISION] GRAVELY ERRED IN DECLARING
SEARCH WARRANT NO. 98-905 NULL AND VOID DESPITE (i) THE UNMISTAKABLE
MANNER BY WHICH THE INVESTIGATING JUDGE CONDUCTED A PERSONAL
EXAMINATION OF THE APPLICANT AND HIS WITNESS; (ii) THE SEARCHING
QUESTIONS PROPOUNDED AND ANSWERS OBTAINED; AND (iii) THE PERSONAL
KNOWLEDGE OF THE APPLICANT AND HIS WITNESS OF THE FACTS THAT
INEVITABLY JUSTIFIES THE ISSUANCE OF THE SEARCH WARRANT.8

The petitioner avers that Judge Lorenzo did not delegate the determination of probable cause to
Nuguid before issuing the subject warrant. While she allowed Nuguid to propound questions on
Alexis Tan, the same consisted of only three preliminary questions, and, as such, was
inconsequential. The petitioner also asserts that the leading questions propounded by Judge
Lorenzo on Tan does not detract from the fact that searching questions were also propounded on
the witnesses, and that based on the entirety of such propounded questions and the latter’s
answers, there was probable cause for the issuance of a search warrant. The petitioner maintains
that Tan had personal knowledge of the respondent’s delictual acts which were in violation of Rep.
Act No. 6425, as amended. Moreover, as gleaned from the affidavits of Tan and Nuguid and their
collective testimonies before the RTC, the respondent’s house was sufficiently described and
identified, which description Nuguid was able to confirm through his surveillance of the house, the
place where the crime was committed.

The petitioner further contends that although there was an interregnum of six (6) months from the
time the commission of the crime came to the knowledge of Tan up to the filing of the application of
the search warrant by Nuguid, the same did not obscure the finding of probable cause made by
Judge Lorenzo.

The Court gave due course to the petition and required the parties to submit their respective
memoranda.9

After a comprehensive and well-studied review of the Rollo and the records of the Court of Appeals,
we resolve to deny the petition.

The Petition Was Filed Out of Time

The Office of the Solicitor General (OSG) admitted in the petition at bar that it received a copy of the
assailed decision of the CA on October 21, 1999. Under Section 2, Rule 45 of the Rules of Court,
the OSG had until November 5, 1999 within which to file its petition for review on certiorari. However,
it did so only on November 25, 1999, long after the period therefor had lapsed. We reject as totally
unacceptable the pretext of Solicitor Ma. Theresa Dolores C. Gomez-Estoesta that, because of
heavy pressure of work,10 the actual filing of the motion to file the petition at bar prepared on
November 3, 1999, was "accidentally slighted." The Solicitor is mandated to insure that her motion
for extension was filed within the period therefor.11 Volume of work is a lame excuse.12 She cannot
escape the adverse effects of her forgetfulness.

Even if we gloss over the gross negligence of the OSG and resolve the petition on its merits, we find
the same to be barren of merit.

A search warrant must (a) be based on probable cause; (b) contain a particular description of the
place to be searched; and (c) must describe the items or property to be seized.13 Probable cause
comprehends such facts and circumstances as will induce a cautious man to rely upon and act in
pursuance thereof.14
It bears stressing that the requirement of particularity is related to the probable cause requirement in
that, at least, under severe circumstances, the lack of a more specific description will make it
apparent that there has not been a sufficient showing to the Judge that the described items are to be
found in a particular place. Probable cause must first focus on a specific location. If the applicant or
official is unable to state with sufficient precision the place to be searched and why he reasonably
believes that contraband or evidence of criminal activity will be found therein, it is highly doubtful that
he possesses probable cause for a warrant.15

In issuing a search warrant, the Judge must strictly comply with the requirements of the Constitution
and the statutory provisions.16

A search warrant shall not 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.17 Before issuing a search warrant, the Judge must personally examine, in the form of
searching questions and answers, in writing and under oath, the complainant and his witnesses he
may produce, on facts personally known to them.18

The mandate of the Judge is for him to conduct a full and searching examination of the complainant
and the witnesses he may produce. In the absence of a rule to the contrary, the determination of
probable cause cannot be delegated by the Judge, in part, or in whole, regardless of the
qualifications of the person on whom reliance is placed. It is not permissible for the Judge to share
the required determination with another.19

The searching questions propounded to the applicant and the witnesses must depend on a large
extent upon the discretion of the Judge. Although there is no hard-and-fast rule as to how a Judge
may conduct his examination, it is axiomatic that the said examination must be probing and
exhaustive and not merely routinary, general, peripheral or perfunctory.20 He must make his own
inquiry on the intent and factual and legal justifications for a search warrant. The questions should
not merely be repetitious of the averments not stated in the affidavits/deposition of the applicant and
the witnesses.21 If the Judge fails to determine probable cause by personally examining the applicant
and his witnesses in the form of searching questions before issuing a search warrant, it constitutes
grave abuse of discretion.22

A search warrant proceeding is independent of any criminal case. It is ex parte and non-
adversarial.23 Hence, the Judge acting on an application for a search warrant is not bound to apply
strictly the rules of evidence. As ruled in Brinegar v. United States:24

The inappropriateness of applying the rules of evidence as a criterion to determine probable

cause is apparent in the case of an application for a warrant before a magistrate, the context
in which the issue of probable cause most frequently arises. The ordinary rules of evidence
are generally not applied in ex parte proceedings, partly because there is no opponent to
invoke them, partly because the Judge’s determination is usually discretionary, partly
because it is seldom that, but mainly because the system of evidence rules was devised for
the special control of trials by jury.

The Judge is not proscribed, at all times, from propounding leading questions on the
applicant and the witnesses he may produce. Indeed, the Judge is allowed to propound
leading questions if, for instance, the witness is a child or is suffering from mental illness, or if
the questions are preliminary or clarificatory, or when there is difficulty in getting direct and
intelligent answers from the witness who is ignorant.
 But it can hardly be justifiably claimed that, by propounding leading questions only on the
complainant and the witnesses he may produce, the Judge thereby conducts probing and
exhaustive examination. After all, a leading question is one which suggests to the witness
the answer which the examining party desires.25 By propounding leading questions, the
Judge thereby puts the words or answers in the mind of the witness to be echoed back.26

It bears stressing that the determination of the existence of probable cause must be made by a
detached and neutral Judge.27 If he resorts to propounding leading questions to the applicant and his
witnesses to determine probable cause, the Judge may be perceived as being partial, or even in
cahoots with the officers engaged in the often competitive enterprise of ferreting out crime.28

A search warrant is not thereby rendered invalid; nor is a finding of probable cause proscribed
merely because the Judge propounded leading questions on the applicant and the witnesses he
produces. The entirety of the questions propounded by the court and the answers thereto must be
considered and calibrated by the Judge.

The Judge Allowed the Applicant Nuguid to Examine Tan, His Witness, and Failed to
Propound Searching Questions

The transcript of the stenographic notes taken when Nuguid and Tan testified is quoted, in toto, infra:

COURT

Who is the applicant here?

SPO3 NUGUID:

I am the applicant, Your Honor.

(Swearing the applicant) -

COURT:

Please stand.

COURT:

Q You are applying for a search warrant.

A Yes, Your Honor.

Q Where is this place to be searched?

A At no. 2006 Oroquieta St., Sta. Cruz, Manila, Your Honor.

Q Is there any person there whom you would want to search?

A Yes, Your Honor.

Q Who?

A In the name of Cesar Reyes, Your Honor, alias "Cesar Itlog."

Q Why, what is it he is keeping in his custody?

A Undetermined quantities of suspected methamphetamine hydrochloride also known as

"Shabu."

Q How do you know that such things exist in his place?

A Thru my witness, Your Honor, we were able to test-buy and examine the contents in a
plastic sachet.

Q Why, what did your witness do, if any?

A I asked my witness to buy from Cesar Reyes alias "Cesar Itlog" and she was able to buy
the subject shabu.

Q How did you know that your witness was able to buy from Cesar Reyes and not from other
source?

A She told me and according to her she got it from Cesar Reyes.

Q Who is this witness you are referring to?

A Alexis Tan, Your Honor.

Q Where is she?

A She is the one, Your Honor. (Witness pointing to a lady who answered when asked of her
name as Alexis Tan).

COURT:

Alright, I will ask her.

(Swearing Ms. Tan) –

Q Do you swear to tell the truth and nothing but the whole truth?

A Yes, I do.

Q Please state your name, age and other personal circumstances.

A ALEXIS TAN, 34 years old, married, jobless and with address c/o WBD Drug Enforcement
Section, U.N. Ave., Manila.

Q What is your occupation?

A None for the moment, Your Honor.

Q What was your occupation, if any, before?

A A plain housewife, Your Honor.

COURT:

(to SPO3 Nuguid) –

You want to ask her questions on record?

SPO3 NUGUID:

Your Honor, she has her statement …

COURT:

Yes, but for the record, you may ask her.

SPO3 NUGUID:

Yes, Your Honor.

Q Do you personally know one Cesar Reyes alias "Cesar Itlog?"

A Yes, Sir.

Q How long have you known Cesar Reyes?

A Maybe around 6 months ago.

Q How did you come to know him?

A I was introduced to him by a friend, Sir.

COURT:

Q What was the purpose of introducing you to him by your friend?

A It started when I was separated from my husband when my friend taught me how to use
shabu, Your Honor.

Q When you were separated from your husband, what has it something to do with
introducing you to Cesar Reyes?

A Thru influence, Your Honor.

Q What connection does it have?

A They know each other, Your Honor. My friend knows that Cesar Reyes is selling shabu,
Your Honor.

Q Did you really find out if Cesar Reyes alias "Cesar Itlog" is selling shabu?

A Yes, Your Honor.

Q How?

A At first, I was accompanied by my friend, but later I went there on my own alone.

Q You mean, this Cesar Reyes is really in the business if (sic) selling shabu?

A Yes, Your Honor.

Q Knowing his prohibited ((sic) activity, does he also sell to any other people?

A Those known to him, Ma’am.

Q You consider yourself as very well known to him?

A Yes, Your Honor.

Q Have you also seen him in [the] company of that friend of yours who introduced you to
him?

A Yes, Ma’am for many times.

Q And you have been going to this place of Cesar Reyes several times also.

A Yes, Your Honor, I bought shabu from him.

Q How did he sell it to you?

A I will call him first through the phone before I go to him.

Q You make an appointment with him first?

A Yes, Your Honor.

Q Where is this place?

A At Oroquieta Street, Sta. Cruz, Manila, Your Honor.

Q Everytime you go and buy shabu from him, is it always ready for sale to you?

A Yes, Your Honor.

Q You mean he has always in his custody and does not run out of stock?
A There was one time when I called him if he could sell one for me he told me through the
phone to call back after an hour because he will be getting it from other source.

Q Did you call him back after an hour?

A Yes, Your Honor, and he told me to come over to his place.

Q How much quantity (sic) did you buy from him?

A For ₱3,000.00, Your Honor.

Q I am referring to the quantity.

A 3 grams, Your Honor, he does not sell lower than 3 grams, Your Honor, it must be 3 grams
and above.

Q You have not yet bought from him only one gram?

A No, Your Honor, not less than 3 grams.

Q During the time you bought shabu from Cesar Reyes, were you the only customer?

A He entertains customer (sic) one at a time, Your Honor, but he has several customers.

Q How do you know that he has several customers?

A Because he also talked [to] callers on the phone. During the time I bought shabu from him,
he also talked to somebody on the phone.

Q That is only. . .

Q Since when did you start buying shabu from him?

A Between December 1997 and January 1998, Your Honor.

Q The shabu you had been buying from him, do you use it or sell it to some other person?

A No, Your Honor, I do not sell it.

Q You use it?

A Yes, Your Honor.

Q You know the house of Cesar Reyes after confirmation, in what particular part of the
house does Cesar Reyes entertain you?

A In [the] living room, Your Honor.

Q When you go to his house, you usually go and see him in that (sic) living room and not
elsewhere before he comes out from that house?
A Normally, Your Honor, when I go to his house, he would open the door for me and would
say "come in" then ask me "how much." If, for example, I would say 3 grams, he would just
go to his room and comes out with the item.

Q In other words, everytime you go to his place to buy shabu she (sic) is there ready to
entertain you?

A Yes, Your Honor.

Q Is it not that he is still busy conversing with other people when he comes out from his
room?

A When I go to his house, he is there ready to open for me (sic) he knows I am coming.

Q That is always the case, he is ready to open the door for you?

A There was also a time that his maid opened the door for me.

Q Aside from the maid, did you see other people inside that house?

A His family- his wife and a baby then he would usually let them stay away from the living
room or just get inside the room.

Q What kind of a house does Cesar Reyes have?

A A two-story (sic) house, Your Honor.

Q Not an apartment?

A No, Your Honor.

Q A single detach (sic) house?

A Yes, Your Honor.

Q Is there any guard on (sic) the main gate of the house?

A None, Ma’am, it is just an ordinary house.

Q There are no people you usually see when you go there?

A There are some members of the family but usually he let (sic) them stay away from the
living room.

Q Was there an occasion when somebody arrives when you see him?

A None, Your Honor.

Q So, this is a one-on-one affair.

A Yes, Your Honor.

Q How do you know that these things are stored in his house?

A Everytime I bought shabu from him, he would get the money from me and then get inside
his room to get a sachet of shabu and give it to me.

Q Are you sure that these things (shabu) are stocked in his house permanently or maybe
they are just brought there from somewhere because he knows you are coming to buy and
get it?

A There was once when I called him by phone and he asked me "how much" and I told him I
will buy for (sic) ₱4,000.00 worth of shabu and he said "you just proceed to my place by 2
o’clock in the afternoon," I will have to get it from other source."

Q He got it from other source for you?

A According to him, if it is by large (sic) quantity and he will just repack it in his house.

Q He himself told you?

A Yes, Your Honor, but he does not reveal from whom.

Q You have no idea?

A No, Your Honor.

Q You did not ask him?

A No, Your Honor.

Q You used to transact business on the ground floor of his house?

A Yes, Your Honor.

Q Did you notice if his house has several rooms?

A There is one room on the ground floor, Ma’am, but sometimes he also goes upstairs and
comes down with the shabu item. Most of the time of the transaction just on the ground floor.

Q Is there a partition in that particular room?

A It is just a single room, Ma’am.

Q Did you not notice if there are other people in that room in the ground floor?

A I did not notice but there was one time when I saw a child but he let that child stay away
from the visitor.

Q You mean this room where you saw him come out serve as storeroom of shabu?
A Yes, Ma’am.

Q Did he tell you about it?

A Yes, Ma’am.

Q Why did he tell you?

A Because when he entertained me, he left me for the moment and I said "where do you go"
and he said "I will get inside that room to get the shabu."

Q So, since you were requested by the police officer to purchase shabu from Cesar Reyes,
how many times?

A That was the only time, Your Honor.

COURT: (to SPO3 NUGUID)

Q Did you make surveillance in that place?

A Yes, Your Honor, we made a surveillance after the test-buy.

Q What did you do?

A During the surveillance, we brought several witnesses.

Q Did you notice people going there to the house of Cesar Reyes?

A Yes, Your Honor.

Q And what have you observed?

A Some customers are even using cars.

Q You do not know if those people were visitors or not?

A We are not sure if those people are visitors of Cesar Reyes because we have no contact
inside his house.

COURT: (to Ms. TAN) -

Q When did you buy shabu from Cesar Reyes?

A June 13, 1998, Your Honor.

Q This Cesar Reyes at the time did not have any idea that you were there being sent by the
police officers?

A No, Your Honor.

 Q Did you really go to his place and successfully bought the shabu from Cesar Reyes?

A Yes, Your Honor.29

The questions propounded on Nuguid by Judge Lorenzo were not searching and probing, but merely
superficial and perfunctory. The records show that in his application for a search warrant, Nuguid
described the place to be searched as the house located at "No. 2600 Oroquieta Street, Sta. Cruz,
Manila," under the name of Cesar Reyes alias "Cesar Itlog." However, the Judge ignored this
inconsistency and did not bother to inquire from Nuguid why he applied for a search warrant of the
premises at No. 2600 Oroquieta Street, Sta. Cruz, Manila, when the house where Tan had
apparently purchased shabu from the respondent was located at No. 2006 Oroquieta Street, Sta.
Cruz, Manila.

Nuguid declared that he and the police officers conducted a test-buy on June 13, 1998, using Tan as
the buyer for said purpose. The ordinary procedure for a test-buy is for the police officers to monitor
and observe, at a distance, the sale of illicit drugs by the suspect to the buyer. In this case,
when the Judge asked Nuguid how Tan was able to buy shabu from the respondent, Nuguid
reported that Tan told him that he got shabu from Cesar Reyes, implying that he did not witness the
test-buy; however, Nuguid also declared that he was at a distance when the test-buy was
conducted.

The Judge also failed to ask Nuguid the circumstances upon which he and the other police officers
came to know how Tan was able to purchase shabu from the respondent. Inexplicably, Nuguid
conducted a search of the house of the respondent only after the test-buy and not before then.
However, the Judge failed to inquire why the application for a search warrant was made only on
June 18, 1998, or after the lapse of five days from the time the test-buy was conducted on June 13,
1998. The Judge also failed to ask Nuguid why no surveillance was made before the test-buy and
whether any report on the surveillance operations conducted on the respondent’s house after the
test-buy was submitted.

Even a cursory reading of the transcript will show that most of the questions propounded on Tan by
the Judge were leading questions, and that those which were not leading were merely based on or
related to the answers earlier given to the leading questions. By asking such leading questions, the
Judge thereby supplied the answers to her questions. Although Tan testified that she used to buy at
least three (3) grams for ₱3,000.00 from the respondent during the period of December 1997 to
January 1998, the Judge did not even bother to inquire from Tan, a plain housewife who was
separated from her husband, how she could afford to purchase shabu for ₱3,000.00 on several
occasions during the period of December 1997 to January 1998.

Indeed, there was an interregnum of more than four (4) months from the time Tan purchased shabu
from the respondent up to the time when the test-buy was supposedly made. However, the Judge
was not even curious as to why Tan failed to purchase shabu from the respondent for such a long
period of time, considering that from her testimony, Tan made it plain that she was a regular user of
shabu. The Judge should have asked Tan why she did not buy shabu from the respondent for more
than four months.

The Judge even failed to inquire from Tan when and under what circumstances Nuguid was able to
meet with her to discuss how she would be utilized for the test-buy. The curiosity of the Judge was
not even aroused when, in answer to her question on the location of the house of "Cesar Reyes,"
Tan replied that it was located at Oroquieta Street, Sta. Cruz, Manila, without specifying the house
number. At the very least, it behooved the Judge to require Tan to specify the house number if only
to test her credibility. And yet, immediately after propounding the questions on Tan and Nuguid, the
Judge announced that she was issuing the search warrant.

A June 13, 1998, Your Honor.

Q This Cesar Reyes at the time did not have any idea that you were there being sent by the
police officers?

A No, Your Honor.

Q Did you really go to his place and successfully bought the shabu from Cesar Reyes?

A Yes, Your Honor.

COURT

(to SPO3 NUGUID) –

Q During the time that Alexis Tan was being sent there to buy shabu from Cesar Reyes,
where were you then?

A We were at a distance, Your Honor.

COURT:

Do you have something to add questions from her?

SPO3 NUGUID:

No more at the moment, Your Honor.

COURT:

That will be all for now and the Court will issue the Search Warrant.30

The Judge allowed and even egged on Nuguid to examine Tan and elicit facts and circumstances
from her relating to the alleged purchase of shabu from the respondent. What is so worrisome is that
Nuguid, besides being the applicant, was the same police officer who asked Tan to buy shabu from
the respondent and the one who, along with other officers, arrested the respondent. That Nuguid
propounded comparatively fewer questions on Tan is beside the point. By allowing Nuguid himself to
examine Tan, the Judge thereby compromised her impartiality.

We echo, once again, the oft-cited caveat of the Court:

It has been said that of all the rights of a citizen, few are of greater importance or more
essential to his peace and happiness than the right of personal security, and that involves
the exemption of his private affairs, books, and papers from inspection and scrutiny of
others. While the power to search and seize is necessary to the public welfare, still it must be
 exercised and the law enforced without transgressing the constitutional rights of the citizens,
for the enforcement of no statute is of sufficient importance to justify indifference to the basic
principles of government.

Thus, in issuing a search warrant, the Judge must strictly comply with the requirements of
the Constitution and the statutory provisions. A liberal construction should be given in favor
of the individual to prevent stealthy encroachment upon, or gradual depreciation of the rights
secured by the Constitution. No presumption of regularity is to be invoked in aid of the
process when an officer undertakes to justify it.31

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED.

SO ORDERED.

Puno, Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.