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G.R. No.

143944

July 11, 2002

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BASHER BONGCARAWAN y MACARAMBON, accused-appellant. PUNO, J.: This is an appeal from the Decision1 dated December 27, 1999 of the Regional Trial Court of Iligan City, Branch 06, in Criminal Case No. 06-7542, finding accused Basher Bongcarawan y Macarambon guilty beyond reasonable doubt of violation of Section 16, Article III of Republic Act No. 64252 as amended, and sentencing him to suffer the penalty of reclusion perpetua, and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) without subsidiary imprisonment in case of insolvency. Accused Basher Bongcarawan y Macarambon was charged in an Information which reads, thus: "That on or about March 13, 1999, in the City of Iligan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, without authority of law, did then and there wilfully, unlawfully and feloniously have in his possession, custody and control eight (8) packs of Methamphetamine Hydrochloride, a regulated drug commonly known as Shabu, weighing approximately 400 grams, without the corresponding license or prescription. Contrary to and in violation of Section 16, Article III of RA 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended by RA 7659."3 During the arraignment, the accused pleaded not guilty. Trial ensued. Evidence for the prosecution shows that on March 11, 1999, an interisland passenger ship, M/V Super Ferry 5, sailed from Manila to Iligan City. At about 3:00 a.m. on March 13, 1999, the vessel was about to dock at the port of Iligan City when its security officer, Mark Diesmo, received a complaint from passenger Lorena Canoy about her missing jewelry. Canoy suspected one of her co-passengers at cabin no. 106 as the culprit. Diesmo and four (4) other members of the vessel security force accompanied Canoy to search for the suspect whom they later found at the economy section.4 The suspect was identified as the accused, Basher Bongcarawan. The accused was informed of the complaint and was invited to go back to cabin no. 106. With his consent, he was bodily searched, but no jewelry was found. He was then escorted by two (2) security agents back to the economy section to get his baggage. The accused took a Samsonite suitcase and brought this back to the cabin. When requested by the security, the accused opened the suitcase, revealing a brown bag and small plastic packs containing white crystalline substance. Suspecting the substance to be "shabu," the security personnel immediately reported the matter to the ship captain and took pictures of the accused beside the suitcase and its contents. They also called the Philippine Coast Guard for assistance.5 At about 6:00 a.m., Lt. Robert Patrimonio, YN Aurelio Estoque, CD2 Phoudinie Lantao and RM3 Merchardo De Guzman of the Philippine Coast Guard arrived and took custody of the accused and the seized items--the Samsonite suitcase, a brown bag6 and eight (8) small plastic packs of white crystalline substance.7 When asked about the contraband articles, the accused explained that he was just requested by a certain Alican "Alex" Macapudi to bring the suitcase to the latter's brother in Iligan City.8 The accused and the seized items were later turned over by the coast guard to the Presidential Anti-Organized Crime Task Force (PAOCTF). Chief Inspector Graciano Mijares and his men brought the accused to the PAOCTF Headquarters,9 while the packs of white crystalline substance were sent to the NBI Regional Office in Cagayan de Oro City for laboratory examination. NBI Forensic Chemist Nicanor Cruz later confirmed the substance to be

methamphetamine hydrochloride, commonly known as "shabu," weighing 399.3266 grams.10 The accused testified and proffered his own version. On March 11, 1999, at about 10:00 p.m., he was in Quiapo, Manila where he met Alican "Alex" Macapudi, a neighbor who has a store in Marawi City. He was requested by Macapudi to bring a Samsonite suitcase containing sunglasses and watches to Iligan City, and to give it to Macapudi's brother at the Iligan port. He boarded the M/V Super Ferry 5 on the same night, carrying a big luggage full of clothes, a small luggage or "maleta" containing the sunglasses and brushes he bought from Manila, and the Samsonite suitcase of Macapudi.11 He stayed at cabin no. 106. At about 4:00 a.m of March 13, 1999, as the vessel was about to dock at the Iligan port, he took his baggage and positioned himself at the economy section to be able to disembark ahead of the other passengers. There, he met a friend, Ansari Ambor. While they were conversing, five (5) members of the vessel security force and a woman whom he recognized as his copassenger at cabin no. 106 came and told him that he was suspected of stealing jewelry. He voluntarily went with the group back to cabin no. 106 where he was frisked. Subsequently, he was asked to get his baggage, so he went back to the economy section and took the big luggage and Macapudi's Samsonite suitcase. He left the small "maleta" containing sunglasses and brushes for fear that they would be confiscated by the security personnel. When requested, he voluntarily opened the big luggage, but refused to do the same to the Samsonite suitcase which he claimed was not his and had a secret combination lock. The security personnel forcibly opened the suitcase and found packs of white crystalline substance inside which they suspected to be "shabu." They took pictures of him with the merchandise, and asked him to sign a turn over receipt which was later given to the Philippine Coast Guard, then to the PAOCTF.12 On December 27, 1999, the trial court rendered judgment, the dispositive portion of which reads: "WHEREFORE, the court finds the accused Basher Bongcarawan y Macarambon GUILTY beyond reasonable doubt as principal of the offense of violation of Section 16, Art. III, R.A. No. 6425 as amended by R.A. No. 7659 and hereby imposes upon him the penalty of RECLUSION PERPETUA and a fine of FIVE HUNDRED THOUSAND (P500,000.00) PESOS, without subsidiary imprisonment in case of insolvency. Having been under preventive imprisonment since March 13, 1999 until the present, the period of such preventive detention shall be credited in full in favor of the accused in the service of his sentence. The 399.3266 grams of methamphetamine hydrochloride or shabu is hereby ordered delivered to the National Bureau of Investigation for proper disposition. SO ORDERED."13 Hence, this appeal where the accused raises the following assignment of errors: "I. THE COURT A QUO ERRED IN SO HOLDING THAT THE DRUG CONFISCATED IS ADMISSIBLE IN EVIDENCE AGAINST THE ACCUSED/APPELLANT. II. THE COURT A QUO ERRED IN SO HOLDING THAT THE APPELLANT OWNED THE CONFISCATED EVIDENCE AND THEREFORE ADMISSIBLE IN EVIDENCE AGAINST HIM."14 On the first assignment of error, the accused-appellant contends that the Samsonite suitcase containing the methamphetamine hydrochloride or "shabu" was forcibly opened and searched without his consent, and hence, in violation of his constitutional right against unreasonable search and seizure. Any evidence 1

acquired pursuant to such unlawful search and seizure, he claims, is inadmissible in evidence against him. He also contends thatPeople v. Marti 15 is not applicable in this case because a vessel security personnel is deemed to perform the duties of a policeman. The contentions are devoid of merit. The right against unreasonable search and seizure is a fundamental right protected by the Constitution.16Evidence acquired in violation of this right shall be inadmissible for any purpose in any proceeding.17 Whenever this right is challenged, an individual may choose between invoking the constitutional protection or waiving his right by giving consent to the search and seizure. It should be stressed, however, that protection is against transgression committed by the government or its agent. As held by this Court in the case of People v. Marti,18 "[i]n the absence of governmental interference, liberties guaranteed by the Constitution cannot be invoked against the State."19 The constitutional proscription against unlawful searches and seizures applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed.20 In the case before us, the baggage of the accused-appellant was searched by the vessel security personnel. It was only after they found "shabu" inside the suitcase that they called the Philippine Coast Guard for assistance. The search and seizure of the suitcase and the contraband items was therefore carried out without government intervention, and hence, the constitutional protection against unreasonable search and seizure does not apply. There is no merit in the contention of the accused-appellant that the search and seizure performed by the vessel security personnel should be considered as one conducted by the police authorities for like the latter, the former are armed and tasked to maintain peace and order. The vessel security officer in the case at bar is a private employee and does not discharge any governmental function. In contrast, police officers are agents of the state tasked with the sovereign function of enforcement of the law. Historically and until now, it is against them and other agents of the state that the protection against unreasonable searches and seizures may be invoked. On the second assignment of error, the accused-appellant contends that he is not the owner of the Samsonite suitcase and he had no knowledge that the same contained "shabu." He submits that without knowledge or intent to possess the dangerous drug, he cannot be convicted of the crime charged.21 We are not persuaded. In a prosecution for illegal possession of dangerous drugs, the following facts must be proven beyond reasonable doubt, viz: (1) that the accused is in possession of the object identified as a prohibited or a regulated drug; (2) that such possession is not authorized by law; and (3) that the accused freely and consciously possessed the said drug.22 The first two elements were sufficiently proven in this case, and were in fact undisputed. We are left with the third. As early as 1910 in the case of United States v. Tan Misa,23 this Court has ruled that to warrant conviction, the possession of dangerous drugs must be with knowledge of the accused, or that animus possidendi existed together with the possession or control of such articles.24 It has been ruled, however, that possession of dangerous drugs constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused in the absence of a satisfactory explanation of such possession.25 Hence, the burden of evidence is shifted to the

accused to explain the absence of knowledge or animus possidendi.26 In this respect, the accused-appellant has utterly failed. His testimony, uncorroborated, self-serving and incredulous, was not given credence by the trial court. We find no reason to disagree. Well-settled is the rule that in the absence of palpable error or grave abuse of discretion on the part of the trial judge, the trial court's evaluation of the credibility of witnesses will not be disturbed on appeal.27 Moreover, evidence must be credible in itself to deserve credence and weight in law. In this case, the accused-appellant admits that when he was asked to get his baggage, he knew it would be inspected.28 Why he got the Samsonite suitcase allegedly not owned by him and which had a combination lock known only to the owner remains unclear. He also claims that he did not present his small "maleta" for inspection for fear that its contents consisting of expensive sunglasses and brushes would be confiscated,29 but he brought the Samsonite suitcase which is not his and also contained expensive sunglasses, and even watches.30 The things in possession of a person are presumed by law to be owned by him.31 To overcome this presumption, it is necessary to present clear and convincing evidence to the contrary. In this case, the accused points to a certain Alican "Alex" Macapudi as the owner of the contraband, but presented no evidence to support his claim. As aptly observed by the trial judge: "First, who is Alex Macap[u]di aka Ali[c]an Macap[u]di? Does he really exist or simply a figment of the imagination? He says that Alex Macap[u]di is a friend and a fellow businessman who has a stall selling sunglasses in Marawi City. But no witnesses were presented to prove that there is such a living, breathing, flesh and blood person named Alex Macap[u]di who entrusted the Samsonite to the accused. Surely, if he does exist, he has friends, fellow businessmen and acquaintances who could testify and support the claim of the accused."32 Mere denial of ownership will not suffice especially if, as in the case at bar, it is the keystone of the defense of the accusedappellant. Stories can easily be fabricated. It will take more than bare-bone allegations to convince this Court that a courier of dangerous drugs is not its owner and has no knowledge or intent to possess the same. WHEREFORE, the decision of the Regional Trial Court of Iligan City, Branch 06, in Criminal Case No. 06-7542, convicting accused-appellant Basher Bongcarawan of violation of Section 16, Article III of Republic Act No. 6425, as amended, and sentencing him to suffer the penalty of Reclusion Perpetua and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) without subsidiary imprisonment in case of insolvency, is AFFIRMED. Costs against the accused-appellant. SO ORDERED. *********************************************************************** PEOPLE VS. MONTILLA, 284 SCRA 703 On June 19, 1994, at about 2 p.m., SPO1 Talingting and SPO1 Clarin of the Dasmarinas, Cavite PNP were informed by an INFORMER that a drug courier would be arriving in Barangay Salitran, Dasmarinas, Cavite, from Baguio City, with an undetermined amount of marijuana. The informer likewise informed them that he could recognize said person. At about 4 in the morning of June 20, 1994, the appellant was arrested by the above-named police officers while alighting from a passenger jeepney near a waiting shed in Salitran, Dasmarinas, Cavite, upon being pointed to by the informer. The

policemen recovered 28 kilos of dried marijuana leaves. The arrest was without warrant. The trial court convicted the appellant for transporting marijuana based on the testimonies of the Above-named police officers without presenting the alleged informer. Issue: Was the warrantless arrest valid? Held: The accused claims that the warrantless search and seizure is illegal because the alleged information was received by the police on June 19, 1994 and therefore, they could have applied for a search warrant. The said contention is without merit considering that the information given by the informer is too sketchy and not detailed enough for the obtention of the corresponding arrest or search warrant. While there is indication that the informer knows the courier, the records do not show that he knew his name. On bare information, the police could not have secured a warrant from a judge. Furthermore, warrantless search is allowed in the following instances: 1. 2. 3. 4. 5. 6. customs searches; searches of moving vehicle; seizure of evidence in plain view; consented searches; search incidental to a lawful arrest; and stop and frisk measures.

from a ship on the strength of a tip from an informer received by the police the previous afternoon that the appellant would be transporting prohibited drugs. The search yielded a plastic package containing marijuana. On Appeal, the SC reversed the decision of conviction and held that Encinada did not manifest any suspicious behavior that would necessarily and reasonably invite the attention of the police. PEOPLE VS. MONTILLA, 284 SCRA 703 On 19 June 1994 at about 2pm, police officers Talingting and Clarin were informed by an asset that a drug courier would be arriving from Baguio to Dasmarias carrying an undetermined amount of marijuana. The next day, the informant pointed at Montilla as the courier who was waiting in a waiting shed Brgy Salitran, Dasmarias. Montilla was then apprehended and he was caught in possession of a bag and a carton worth 28 kilos of marijuana. Montilla denied the allegation and he said he came to Cavite from Baguio for work and he does not have any effects with him at that time except for some pocket money. He was sentenced to death thereafter. He averred that the search and seizure conducted was illegal for there was no warrant and that he should have been given the opportunity to cross examine the informant. He said that if the informant has given the cops the information about his arrival as early as the day before his apprehension, the cops should have ample time to secure a search warrant. ISSUE: Whether or not the warrantless arrest conducted is legal. HELD: The SC ruled that the warrantless arrest is legal and so was the warrantless search. Sec 2 Art 3 of the Constitution has its exception when it comes to warrantless searches, they are: (1) customs searches; (2) searches of moving vehicles, (3) seizure of evidence in plain view; (4) consented searches; (5) searches incidental to a lawful arrest; (6) stop and frisk measures have been invariably recognized as the traditional exceptions. In the case at bar, it should be noted that the information relayed by informant to the cops was that there would be delivery of marijuana at Barangay Salitran by a courier coming from Baguio in the early morning of June 20, 1994. Even assuming that the policemen were not pressed for time, this would be beside the point for, under these circumstances, the information relayed was too sketchy and not detailed enough for the obtention of the corresponding arrest or search warrant. While there is an indication that the informant knew the courier, the records do not reveal that he knew him by name. On such bare information, the police authorities could not have properly applied for a warrant, assuming that they could readily have access to a judge or a court that was still open by the time they could make preparations for applying therefor, and on which there is no evidence presented by the defense. In determining the opportunity for obtaining warrants, not only the intervening time is controlling but all the coincident and ambient circumstances should be considered, especially in rural areas. A legitimate warrantless arrest, as above contemplated, necessarily cloaks the arresting police officer with authority to validly search and seize from the offender (1) dangerous weapons, and (2) those that may be used as proof of the commission of an offense. ************************************************************************* THE PEOPLE OF THE PHILIPPINES vs. 3

Since the accused was arrested for transporting marijuana, the subsequent search on his person is justified. An arresting officer has the right to validly search and seize from the offender (1) dangerous weapons; and (2) those that may be used as proof of the commission of the offense. In the case at bar, upon being pointed to by the informer as the drug courier, the policemen requested the accused to open and show them the contents of his bag and the cartoon he was carrying and he voluntarily opened the same and upon cursory inspection, it was found out that it contains marijuana. Hence the arrest. The accused insists that it is normal for a person traveling with a bag and cartoon which should not elicit the slightest suspicion that he was committing a crime. In short, there was no probable cause for these policemen to think that he was committing a crime. The said contention was considered without merit by the Supreme Court considering the fact that he consented to the search as well as the fact that the informer was a reliable one who had supplied similar information to the police in the past which proved positive. (NOTE: The SC held that the non-presentation of the informer does not affect the case for the prosecution because he is not even the best witness. He is merely a corroborative witness to the arresting officers. ) JUSTICE PANGANIBAN: To say that reliable tips from informers constitute probable cause for a warrantless arrest or search IS A DANGEROUS PRECEDENT AND PLACES IN GREAT JEOPARDY THE DOCTRINES LAID DOWN IN MANY DECISIONS MADE BY THIS COURT. (PEOPLE VS. BURGOS, 144 SCRA 1; PEOPLE VS. AMINNUDIN, 163 SCRA 402; PEOPLE VS. ENCINADA, October 2, 1997; PEOPLE VS. MENGOTE, 220 SCRA). The case is similar to the case of People vs. Encimada where the appellant was searched without a warrant while disembarking

BASHER BONGCARAWAN y MACARAMBON G.R. No. 143944, July 11, 2002 FACTS: The accused was convicted of violation of Section 16, Article III of Republic Act No. 6425 (Dangerous Drugs Act). The antecedent facts of his conviction are as follows: Evidence for the prosecution shows that on March 11, 1999, an interisland passenger ship, M/V Super Ferry 5, sailed from Manila to Iligan City. At about 3:00 a.m. on March 13, 1999, the vessel was about to dock at the port of Iligan City when its security officer, Diesmo, received a complaint from passenger Canoy about her missing jewelry. Canoy suspected one of her copassengers at cabin no. 106 as the culprit. Diesmo and four (4) other members of the vessel security force accompanied Canoy to search for the suspect whom they later found at the economy section. The suspect was identified as the accused, Basher Bongcarawan. The accused was informed of the complaint and was invited to go back to cabin no. 106. With his consent, he was bodily searched, but no jewelry was found. He was then escorted by 2 security agents back to the economy section to get his baggage. The accused took a Samsonite suitcase and brought this back to the cabin. When requested by the security, the accused opened the suitcase, revealing a brown bag and small plastic packs containing white crystalline substance. Suspecting the substance to be shabu, the security personnel immediately reported the matter to the ship captain and took pictures of the accused beside the suitcase and its contents. They also called the Philippine Coast Guard for assistance. But the accused countered this by saying that the Samsonite suitcase containing the methamphetamine hydrochloride or shabu was forcibly opened and searched without his consent, and hence, in violation of his constitutional right against unreasonable search and seizure. Any evidence acquired pursuant to such unlawful search and seizure, he claims, is inadmissible in evidence against him. ISSUE: WON the conviction was valid HELD: YES The right against unreasonable search and seizure is a fundamental right protected by the Constitution. Evidence acquired in violation of this right shall be inadmissible for any purpose in any proceeding. Whenever this right is challenged, an individual may choose between invoking the constitutional protection or waiving his right by giving consent to the search and seizure. It should be stressed, however, that protection is against transgression committed by the government or its agent. The constitutional proscription against unlawful searches and seizures applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed. In the case before us, the baggage of the accused-appellant was searched by the vessel security personnel. It was only after they found shabu inside the suitcase that they called the Philippine Coast Guard for assistance. The search and seizure of the suitcase and the contraband items was therefore carried out without government intervention, and hence, the constitutional protection against unreasonable search and seizure does not apply. There is no merit in the contention of the accused-appellant that the search and seizure performed by the vessel security personnel should be considered as one conducted by the police authorities for like the latter, the former are armed and tasked to maintain peace and order. The vessel security officer in the case at bar is a private employee and does not discharge any governmental function.

NOTE: In a prosecution for illegal possession of dangerous drugs, the following facts must be proven beyond reasonable doubt, viz: (1) that the accused is in possession of the object identified as a prohibited or a regulated drug; (2) that such possession is not authorized by law; and (3) that the accused freely and consciously possessed the said drug. The things in possession of a person are presumed by law to be owned by him. To overcome this presumption, it is necessary to present clear and convincing evidence to the contrary. In this case, the accused points to a certain Alican Alex Macapudi as the owner of the contraband, but presented no evidence to support his claim. No witnesses were presented to prove that there is such a living, breathing, flesh and blood person named Alex Macap[u]di who entrusted the Samsonite to the accused. Surely, if he does exist, he has friends, fellow businessmen and acquaintances who could testify and support the claim of the accused. Mere denial of ownership will not suffice especially if, as in the case at bar, it is the keystone of the defense of the accused-appellant. Stories can easily be fabricated. It will take more than bare-bone allegations to convince this Court that a courier of dangerous drugs is not its owner and has no knowledge or intent to possess the same. ************************************************************************* G.R. No. L-69899 July 15, 1985 ROMMEL CORRO, petitioner, vs. HON. ESTEBAN LISING Presiding Judge, Regional Trial Court, Quezon City, Branch XCV HON. REMIGIO ZARI Regional Trial Court, Quezon City, Branch 98; CITY FISCAL'S OFFICE, Quezon City; LT. COL. BERLIN A. CASTILLO and 1ST LT. GODOFREDO M. IGNACIO, respondents, On September 29, 1983, respondent Regional Trial Court judge Esteban Lising of Quezon City, upon application filed by Lt. Col. Berlin Castillo of the Philippine Constabulary Criminal Investigation Service, issued Search Warrant No. Q-00002 authorizing the search and seizure of 1. Printed copies of Philippine Times; 2. Manuscripts/drafts of articles for publication in the Philippine Times; 3. Newspaper dummies of the Philippine Times; 4. Subversive documents, articles, printed matters, handbills, leaflets, banners; 5. Typewriters, duplicating machines, mimeographing and tape recording machines, video machines and tapes which have been used and are being used as instrument and means of committing the crime of inciting to sedition defined and penalized under Article 142 of the Revised Penal Code, as amended by PD 1835 ... (p. 24, Rollo) On November 6, 1984, petitioner filed an urgent motion to recall warrant and to return documents/personal properties alleging among others that: 2. ... the properties seized are typewriters, duplicating machines, mimeographing and tape recording machines, video machines and tapes which are not in any way, inanimate or mute things as they are, connected with the offense of inciting to sedition.

3. More so, documents or papers seized purporting to do the body of the crime has been rendered moot and academic due to the findings of the Agrava Board that a military conspiracy was responsible for the slaying of the late Senator Benigno Aquino, Jr. on August 21, 1983 at the Manila International Airport. The Agrava Board which has the exclusive jurisdiction to determine the facts and circumstances behind the killing had virtually affirmed by evidence testamentary and documentary the fact that soldiers killed Benigno Aquino, Jr. 4. More so, the grave offense of libel, RTC, Q.C. Branch XCV has dismissed said case against the accused on all documents pertinent and more so as we repeat, rendered moot and academic by the recent Agrava Report. (p. 27, Rollo) On January 28, 1985, respondent Judge Lising denied the motion in a resolution, pertinent portions of which state: ... The said articles presently form part of the evidence of the prosecution and they are not under the control of the prosecuting arm of the government. Under these circumstances, the proper forum from which the petition to withdraw the articles should be addressed, is the Office of the City Fiscal, Quezon City and not with this Branch of the Court. It is to be further noted that it is not even with this Branch of the Court that the offense of inciting to sedition is pending. (p 29, Rollo) Hence, this petition for certiorari and mandamus, with application for preliminary injunction and restraining order to enjoin respondent Regional Trial Court, National Capital Region, Branch 98 from proceeding with the trial of Criminal Case No. S3Q-29243, praying (a) that Search Warrant No. Q-00002 issued by respondent Judge Esteban M. Lising be declared null and void ab initio and that a mandatory injunction be issued directing respondents City Fiscal's Office of Quezon City and Lt. Col. Berlin Castillo and 1st Lt. Godofredo Ignacio jointly and severally to return immediately the documents/properties illegally seized from herein petitioner and that final injunction be issued enjoining respondents City Fiscal's Office of Quezon City, Lt. Col. Castillo and 1st Lt. Ignacio from utilizing said documents/properties as evidence in Criminal Case No. 29243; and (b) that respondent PC-CIS officers Lt. Col. Berlin A. Castillo and lst Lt. Godofredo Ignacio be directed to reopen the padlocked office premises of the Philippine Times at 610 Mezzanine Floor, Gochengco Building, T.M., Kalaw, Ermita, Manila. In Our Resolution of February 19, 1985, respondents were required to file their comment. The plea for temporary restraining order was granted and respondents City Fiscal's Office of Quezon City, Lt. Col. Berlin Castillo and 1st Lt. Godofredo Ignacio were enjoined from introducing as evidence for the state the documents/properties seized under Search Warrant No. Q-00002 in Criminal Cage No. Q-29243 (Sedition case against petitioner), pending before the Regional Trial Court of Quezon City, Branch 98, effective immediately and continuing until further orders from the Court. Respondents would have this Court dismiss the petition on the ground that (1) the present action is premature because petitioner should have filed a motion for reconsideration of respondent Judge Lising's order of January 28, 1985; (2) probable cause exists justifying the issuance of a search warrant; (3) the articles seized were adequately described in the search warrant; (4) a search was conducted in an orderly manner; (5) the padlocking of the searched premises was with the consent of petitioner's wife; (6) the findings of the Agrava Board is irrelevant to the issue of the validity of the search warrant; (7) press freedom is not an issue; and, (8) the petition is barred by laches. There is merit in the petition.

Respondents contend that petitioner should have filed a motion for reconsideration of the order in question before coming to Us. This is not always so. When the questions raised before the Supreme Court are the same as those which were squarely raised in and passed upon by the lower court, the filing of the motion for reconsideration in said court before certiorari can be instituted in the Supreme Court is no longer a pre-requisite. As held in Bache & Co. (Phil.), Inc. vs. Ruiz, 37 SCRA 823, (t)he rule requiring the filing of a motion for reconsideration before an application for a writ of certiorari can be entertained was never intended to be applied without considering the circumstances. The rule does not apply where, the deprivation of petitioners' fundamental right to due process taints the proceeding against them in the court below not only with irregularity but also with nullity." Likewise, in Pajo, et al. vs. Ago, et al., 108 Phil. 905 and in Gonzales vs. Court of Appeals, 3 SCRA 465, this Court ruled that "it is only when questions are raised for the first time before the high court in a certiorari case that the writ shall not issue, unless the lower court had first been given an opportunity to pass upon the same." Further, in the case of Matute vs. Court of Appeals, 26 SCRA 768, We held that "while as a matter of policy a motion for reconsideration in the lower court has often been considered a condition sine qua non for the granting of a writ of certiorari, this rule does not apply where the proceeding in which the error occurred is a patent nullity or where 'the deprivation of petitioner's fundamental right to due process ... taints the proceeding against him in the court below not only with irregularity but with nullity (Luzon Surety Co. v. Marbella et al., L16038, Sept. 30, 1960), or when special circumstances warrant immediate and more direct action. ..." The records of this petition clearly disclose that the issues herein raised have already been presented to and passed upon by the court a quo. Section 3, Article IV of the 1973 Constitution provides: SEC. 3. ...no search warrant or warrant of arrest 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. and, Section 3, Rule 126 of the New Rules of Court, states that: 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 by the judge or justice of the peace after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Probable cause may be defined as "such reasons, supported by facts and circumstances, as will warrant a cautious man in the belief that his actions, and the means taken in prosecuting it, are legally just and proper (Burton vs. St. Paul, M & M. Ry. Co., 33 Minn. 189, cited in U.S. vs. Addison, 28 Phil. 566)." Thus, an application for search warrant must state with particularly the alleged subversive materials published or intended to be published by the publisher and editor of the Philippine Times, Rommel Corro. As We have stated in Burgos, Sr. vs. Chief of Staff of the Armed Forces of the Philippines, 133 SCRA 800, "mere generalization will not suffice." A search warrant should particularly describe the place to be searched and the things to be seized. "The evident purpose and intent of this requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant- to leave the officers of the law with no discretion regarding what articles they should seize, to the end that unreasonable searches and seizures may not be committed, that abuses may not be committed Bache & Co. Phil. Inc. vs, Ruiz, supra)." The affidavit of Col. Castillo states that in several issues of the Philippine Times: 5

... we found that the said publication in fact foments distrust and hatred against the government of the Philippines and its duly constituted authorities, defined and penalized by Article 142 of the Revised Penal Code as amended by Presidential Decree No. 1835; (p. 22, Rollo) and, the affidavit of Lt. Ignacio reads, among others ... the said periodical published by Rommel Corro, contains articles tending to incite distrust and hatred for the Government of the Philippines or any of its duly constituted authorities. (p. 23, Rollo) The above statements are mere conclusions of law and will not satisfy the requirements of probable cause. They can not serve as basis for the issuance of search warrant, absent of the existence of probable cause. In fact, as a consequence of the search warrant issued, the items confiscated from the premises of the office of the Philippine Times at 610 Mezzanine Floor, Gochengco Bldg., T.M. Kalaw, Ermita, Manila were the following: 1. One bundle of assorted negative; 2. One bundle of assorted lay out; 3. Three folders of assorted articles/writings used by Philippine Times news and other paraphernalias; 4. Four tape alleged speech of Mayor Climaco, two alleged speeches of Aquino and a speech of one various artist; 5. One bundle Dummies; 6. Ten bundles of assorted copies of Philippine Times issued on different dates (Nos. 6, 7, 8, 9, 10, 11, 12, 13, 14 & 15): 7. One Typewriter Remington Brand Long Carriage with No. J-2479373; 8. OneTypewriterAdler-short with No. 9003011; 9. Three (3) bundles of Philippine Times latest issue for Baguio City (p. 26, Rollo) In Stonehill vs. Diokno, 20 SCRA 383, this Court held that search warrants authorizing the seizure of books of accounts and records "showing all the business transactions" of certain persons, regardless of whether the transactions were legal or illegal, contravene the explicit comment of the Bill of Rights that the things to be seized should be particularly described and defeat its major objective of eliminating general warrants. In the case at bar, the search warrant issued by respondent judge allowed seizure of printed copies of the Philippine Times, manuscripts/drafts of articles for publication, newspaper dummies, subversive documents, articles, etc., and even typewriters, duplicating machines, mimeographing and tape recording machines. Thus, the language used is so all embracing as to include all conceivable records and equipment of petitioner regardless of whether they are legal or illegal. The search warrant under consideration was in the nature of a general warrant which is constitutionally objectionable. Respondents do not deny the fact that the business office of the "Philippine Times" of which petitioner was the publisher-editor was padlocked and sealed. The consequence is, the printing and publication of said newspaper were discontinued. In Burgos, Sr. vs. Chief of Staff of the Armed Forces of the Philippines, supra, We held that "[sluch closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law, 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." Finally, respondents argue that while the search warrant was issued on September 29, 1983 and was executed on the very same day, it was only on November 6, 1984, or one (1) year, one (1) month and six (6) days when petitioner filed his motion for the recall of the warrant and the return of the documents/personal properties. Having failed to act seasonably, respondents claim that petitioner is guilty of laches. Laches is the failure or neglect, for an unreasonable and unexplained length of time, to do that which by exercising due diligence, could or should have been done earlier. The 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 (Tijam vs. Sibonghanoy, L-21450, April 15, 1968, 23 SCRA 35). In his petition, Corro alleged that on October 1, 1983, less than forty-two (42) hours after the military operatives shut down his newspaper on September 29, 1983, he was invited by the Director-General PC/INP, and subsequently detained. Thereafter, he was charged with the crime of inciting to sedition before the City Fiscal's Office in Quezon City, and on October 7, 1983, a preventive detention action was served upon him. Consequently, he had to file a petition for habeas corpus. It was only on November 8, 1984 when this Court issued its Resolution in G.R. No. 68976, entitled: In the Matter of the Petition for Habeas Corpus of Rommel Corro Angle Corro vs. Minister Juan Ponce Enrile, et al., releasing Rommel Corro on recognizance of his lawyers, Attys. Humberto B. Basco, Reynaldo Bagatsing and Edilberto Balce, In the same month, November 1984, petitioner filed his motion to recall warrant and to return the seized documents. When respondent judge denied the motion, he came to Us. Considering the above circumstances, the claim that petitioner had abandoned his right to the possession of the seized properties is incorrect. WHEREFORE, Search Warrant No. Q-00002 issued by the respondent judge on September 29, 1983 is declared null and void and, accordingly, SET ASIDE. The prayer for a writ of mandatory injunction for the return of the seized articles is GRANTED and all properties seized thereunder are hereby ordered RELEASED to petitioner. Further, respondents Lt. Col. Berlin A. Castillo and lst Lt. Godofredo M. Ignacio are ordered to RE-OPEN the padlocked office premises of the Philippine Times at 610 Mezzanine Floor, Gochengco Bldg., T.M. Kalaw, Ermita, Manila. SO ORDERED.

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