Poli Rev-2 (2)- Rationale and Essentials of a Valid Warrant Substantive and Procedural Requirements Erle Pendon, for

r himself and as Managing Partner of Kener Trading Company, petitioner vs. The Court of Appeals, Hon. Enrique T. Jocson, in his capacity as Presiding Judge of Branch 47, Regional Trial Court of Negros Occidental, Fiscal Alexander Mirano, in his capacity as City Fiscal of Bacolod City and the Provincial Commander of the 381st PC Company, Bacolod City, respondents. FACTS: 1. First Lieutenant Felipe Rojas, Officer-in Charge of the Philippine Constabulary-Criminal Investigation Service (PC-CIS) filed an application for a search warrant since he was informed and that he believed that Kenneth Siao of Kener Trading had in his possession NAPOCOR supplies like bolts, aluminium wires and other tower parts and line accessories which were illegally acquired. He claimed that a Search Warrant (SW) should be issued to enable him or any agent of the law to take possession of those properties. 2. The application, which was subscribed to before Judge Magallanes of Bacolod City was supported by two witnesses, an employee of Napocor and a member of the CIS of BacolodCity, to be known as joint deponents.. On the basis of the application and joint deposition. Judge Magallanes issued Search Warrant (SW) No. 181 commanding the search of the property described in the warrant. 4. The PC officers conducted the raid and seized bolts and angular bars. The receipt was by signed by PC Sargeant Digno Mamaril and marked from Kenneth Siao. A complaint for violation of the Anti-Fencing Law was filed against Siao by National Power Corporation (NPC) before the City Fiscal. 5. Siao filed a counter-affidavit alleging that he had relinquished all his rights and ownership of Kener Trading to Erle Pendon Jr., Petitioner. Thus, the fiscal recommended the dismissal of the case against Siao and the filing of the case against Pendon. The case was assigned to Judge Jocson, Branch 47 of the RTC of Negros Occidental. 6. Before his arraignment, a. Pendon filed an application for the return of the seized items on the ground that the search warrant was illegally issued. - The prosecuting fiscal opposed the application. b. The application was subsequently amended to an application for the quashal of the illegallyissued search warrant and for the return of the seized articles. Such was denied by Judge Jocson, since one of the seized items bears the identifying mark of NPC, the complainant and that there was no statement that such item was acquired in the usual course of business.

c. A motion for reconsideration was filed, but such was also denied. 8. Pendon then filed with the CA a motion for certiorari, prohibition and mandamus assailing the legality of the search warrant and prayed for the permanent prohibition against the use of the articles as evidence and to return the same to him, but such was denied since the CA found that a probable cause existed to justify the issuance of the search warrant. A Motion for Reconsideration was denied. 9. The contention of the petitioner was that the issuance of the Search Warrant was illegal for the following reasons that the application and supporting document: a. Failed to fulfil the requirements prescribed by the Constitution and the rules.

b. Failed to comply with the requisites of searching questions and answers. The deposition showed that the questions were pre-typed, mimeographed and the answers of the witnesses were merely filled in. No examination of the applicant and joint deponents was PERSONALLY conducted by Judge Magallanes as required by law and the rules. c. Both the applicant and joint deponents had no personal knowledge that any specific offense committed by Pendon and that the articles sought to be seized were or stolen or that being so, they were brought to Siao. d. Assuming that the articles belong to NPC, Pendon claims that his Constitutional rights prevail over NAPOCOR. ISSUE; The basic issue is the legality of the issuance of SW No. 181 HELD: The issuance of SW No. 181 was not justified. 1. The issuance of the SW is justified only upon a finding of probable cause. Probable cause for a search has been defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the object sought in connection with the offense are in the place sought to be searched. 2. In determining the existence of probable cause, it is required that a. the judge or officer must examine the witnesses personally b. the examination must be under oath c. the examination must be reduced to writing in the form of searching questions and answers

As to the requirement that the judge or officer must examine the witnesses personally in the form of searching questions and answers to determine whether there was probable cause: 1. This was not sufficiently complied with by the judge before he issued the SW.. The applicant himself was not asked any searching question. He merely subscribed the application before the Judge. The application contained pre-type questions, none of which stated that the applicant had personal knowledge of a robbery or theft and that the proceeds thereof are in the possession and control of the person against whom the search warrant was sought to be issued. 2. As to the deponents, the prosecutor admitted that the questions were pre-typed. 3. The four questions asked could hardly support a finding of probable cause: Question on personal circumstances of deponents a. What are your names and personal circumstances? 2nd and 3rd questions were leading questions answerable by yes or no b. Do you know the premises/house of Kenneth Siao located at Rizal St. near cor. Lacson St., Bacolod City? c. Do you have personal knowledge that said Kenneth Siao who may be found in the said premises/house has in his possession the following properties of NPC? The judge should have probed further the answers to the 4th question to convince himself (Judge) that there was probable cause but he failed to do so d. How do you know that above-described properties are being kept in said premises? We conducted surveillance and we were able to purchase some of these items. 4. The application and deposition failed to provide facts or circumstances which could lead a prudent man to believe that an offense had been committed and that the objects sought in connection with the offense, if any, are in the possession of the person named in the application. a. no statement in the joint deposition that the articles sought to be seized were derived from the proceeds of the crime or robbery or a theft or b. that applicants have any knowledge of the robbery or c. theft was committed and the articles sought to be seized were the proceeds thereof

d. no connection was shown between Siao and Kener Trading or with the premises sought to be searched. 5. The examination or investigation is not merely routinary but one that is thorough and elicit the required information. It must also be under oath and in writing. Other Infirmity of the Warrant: 1. Another infirmity is the generality of the SW. The law requires that the articles to be seized must be described with particularity. The items were so general that the searching team can practically take half of the business of Kener Trading. Kener Trading is in the business of buying and selling scrap metals, second hand spare parts and accessories and empty bottles. 2. The items described in the application do not fall under the list of personal property which may be seized under Sec. 2, Rule 126 of the Rules on Criminal Procedure: Neither the application or the joint deposition alleged that the items sought to be seized were: i.) subject of an offense ii.) stolen or embezzled property and other proceeds or fruits of an offense iii.) used or intended to be used as a means of committing an offense. 3. . Even Judge Jocson had doubts about the existence of probable cause in the issuance of the SW when in his denial of the motion for reconsideration he stated that the seeming lack of probable cause in the application in the lower court is cured by the admission for the accused of counsel that at least one item had the mark of NPC. 4. City Fiscal Mirano claimed that the seizure of the article marked NPC is prima facie evidence of fencing. The Court stated that the seizure cannot validate an invalid warrant. 5. The seized articles described in the receipt had no showing that possession of such is prohibited by law, hence the return to Pendon is proper. The use of the seized articles pursuant to an invalid arrest is enjoined. Ruling: The search warrant is declared Null and Void, and that the items seized should be returned and that the respondents are permanently enjoined from using the seized items as evidence.