EN BANC

[ A.M. No. 15-05-136-RTC, December 04,

2018 ]
IN RE: SPECIAL REPORT ON THE ARREST OF ROGELIO M.
SALAZAR, JR., SHERIFF IV, REGIONAL TRIAL COURT-OFFICE
OF THE CLERK OF COURT, BOAC, MARINDUQUE, FOR
VIOLATION OF REPUBLIC ACT NO. 9165,

A.M. NO. P-16-3450 (FORMERLY A.M. No. 15-12-379-RTC)

OFFICE OF THE COURT ADMINISTRATOR, COMPLAINANT, VS

ROGELIO M. SALAZAR, JR., SHERIFF IV, REGIONAL TRIAL
COURT-OFFICE OF THE CLERK OF COURT, BOAC,
MARINDUQUE, RESPONDENT.

DECISION

PER CURIAM:

No less than the Constitution mandates that a public office is a public

trust and public officers and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty and efficiency, act
with patriotism and justice, and lead modest lives.

The image of the court of justice is mirrored in the conduct, official and
otherwise, of the personnel who work thereat. The conduct of a person
serving the Judiciary must, at all times, be characterized by propriety and
decorum and above all else, be above suspicion so as to earn and keep the
respect of the public for the Judiciary. The Court would never countenance
any conduct, act or omission on the part of all those in the administration
of justice, which will violate the norm of public accountability and diminish
or even just tend to diminish the faith of the people in the
Judiciary.[1] (Emphasis ours)

No other office in the government service exacts a greater demand for

moral righteousness and uprightness from an employee than the
Judiciary. The Court is mindful that any act of impropriety on the part of judicial
officers and personnel, be they the highest or the lowest members of the work
force, can greatly erode the people's confidence in our justice system. Hence, it is
the sacred duty of every worker in the Judiciary to maintain the good name
and standing of the courts. Every employee of the court should be an exemplar
of integrity, uprightness, and honesty. The Court will not hesitate to impose
the ultimate penalty on those who have fallen short of their
accountabilities.[2] (Emphasis ours)
Before this Court are two consolidated administrative matters against Rogelio M.
Salazar, Jr. (respondent), Sheriff IV, Regional Trial Court (RTC), Office of the Clerk
of Court, Boac, Marinduque, for grave misconduct and conduct prejudicial to the
best interest of the service.

Factual Antecedents

These administrative matters stemmed from criminal cases filed against respondent
for violation of Republic Act (RA) No. 9165, otherwise known as the
"Comprehensive Dangerous Drugs Act of 2002". Specifically, Criminal Case No. 63-
15 was filed for violation of Section 11 (Illegal Possession) in relation to Section 28
of RA 9165; while Criminal Case No. 62-15 was filed for violation of
Section 15 (Prohibited Use) in relation to Section 28 of the same Act.[3] Also,
I.S. No. XV-05-INV-15C-087 was filed against respondent for violation of Sections 5
(Illegal Sale) and 15 of the said Act but was, however, dismissed by the Provincial
Prosecutor and now the subject of an automatic review before the Department of
Justice (DOJ).[4]

The factual backdrop of the said cases are as follows:

On March 7, 2015, pursuant to Search Warrant No. 5043, the Philippine Drug
Enforcement Agency (PDEA) and Philippine National Police (PNP) searched
respondent's property, which resulted in the confiscation of seven plastic sachets,
later on found to be containing a total of 9.4993 grams of methamphetamine
hydrochloride, otherwise known as "shabu". Consequently, respondent was arrested
and detained. The confirmatory test conducted on respondent's urine sample
likewise yielded positive of shabu. The Provincial Prosecutor also noted that
respondent admitted the use of dangerous drugs.[5]

On April 21, 2015, Criminal Case Nos. 63-15 and 62-15 were filed. No bail was
recommended for the respondent's release.[6] Meanwhile, as a result of an alleged
buy-bust operation, I.S. No. XV-05-INV-15C-087 was also filed.[7]

Documents relative to Criminal Case No. 63-15 were then forwarded to the Office of
Administrative Services (OAS), Office of the Court Administrator (OCA). Pursuant to
the Court En Banc Resolution dated March 12, 1981, which authorized the OCA to
initiate motu proprio the filing of administrative proceedings against judges and/or
employees of the inferior courts who have been convicted and/or charged before
the Sandiganbayan or the courts, the OCA charged respondent with grave
misconduct and conduct prejudicial to the best interest of the service, which case
was then docketed as A.M. No. 15-12-379-RTC.[8]

In a Report[9] dated November 6, 2015 in the said administrative matter, the OCA
found respondent's acts to constitute grave misconduct and conduct prejudicial to
the best interest of the service. Hence, it recommended that the case be re-
docketed as a regular administrative matter; that respondent be ordered suspended
from service pending the outcome of the criminal case or until further order from
the Court; and, that respondent be ordered to comment on the administrative
charge. The Court, in its April 11, 2016 Resolution,[10] adopted and approved the
OCA's findings and recommendation. Pursuant to the said April 11, 2016
Resolution, the case was re-docketed as A.M. No. P-16-3450.

Meanwhile, P/Supt. Lorenzo Junio Holanday, Jr., Provincial Director, Marinduque

Police Provincial Office, informed the Court, through a letter[11] dated March 25,
2015, of the Special Report on respondent's arrest and the criminal cases filed
against the latter for violations of RA 9615. This brought about A.M. No. 15-05-
136-RTC.

In a Report[12] dated January 28, 2016 in A.M. No. 15-05-136-RTC, the OCA
likewise found respondent's acts to be constitutive of grave misconduct and conduct
prejudicial to the best interest of the service.

In the main, respondent's separate Comments[13] in the instant administrative

matters constitute denial of the charges against him in the criminal cases and
allegations of evidence-planting and frame-up.

Upon recommendation of the OCA, the Court, in its April 11, 2016
Resolution,[14] suspended respondent from service pending the final outcome of the
criminal case filed against him or until further order of this Court considering that
the evidence of guilt is prima facie strong.

In a letter[15] dated August 11, 2016, respondent requested that the instant
administrative cases be consolidated and that the cases be submitted for resolution
based on the pleadings filed.

On April 7, 2017, the OCA issued a Memorandum[16] regarding A.M. No. 15-05-136-
RTC, with the following recommendations:
1. A.M. No. P-16-3450 xxx and A.M. No.15-05-136-RTC be CONSOLIDATED;

2. Respondent Roge1io M. Salazar, Jr., Sheriff IV, Office of the Clerk of Court,
Regional Trial Court, Boac, Marinduque be found GUILTY in both A.M. No. P-16-
3450 and A.M. No. 15-05-136-RTC of grave misconduct and conduct prejudicial to
the best interest of the service pursuant to Sections 46(A)(3) and (B)(8),
respectively, under Rule 10 of Revised Rules for Administrative Cases in the Civil
Service; and

3. Respondent Salazar, Jr. be meted out the penalty of DISMISSAL from the
service with forfeiture of all benefits, except accrued leave credits, if any, and with
prejudice to re-employment in any branch or instrumentality of the government,
including government-owned or controlled corporations.
In its Memorandum, the OCA emphasized that only substantial evidence is needed
in administrative proceedings; that administrative liability is separate and distinct
from criminal liability; and that in administrative proceedings, the Court is not
bound by technical rules of procedure and evidence. The OCA also noted that the
instant administrative cases are not intended to preempt the DOJ's review of the
dismissal of I.S. No. XV-05-INV-15C-087 nor to determine respondent's guilt in
Criminal Case Nos. 62-15 and 63-15.[17]

The OCA found that the evidence on record, which include, the undisputed fact that
respondent was found to be positive for shabu in the drug test following his arrest,
and that the finding of probable cause in the criminal charges against him
constitute more than substantial evidence to hold respondent administratively liable
for grave misconduct and conduct prejudicial to the best interest of service. The
OCA grounded its conclusion on Civil Service Memorandum Circular No. 13, series
of 2010, which provides that any official or employee found positive for use of
dangerous drugs shall be subjected to disciplinary/administrative proceedings with
a penalty of dismissal from the service for the first offense pursuant to Section
46(19) of Book V of Executive Order No. 292 and Section 22(c) of its Omnibus
Rules.[18]

On even date, the OCA also issued a Memorandum[19] as regards A.M. No. P-16-
3450, with the same findings and recommendation as in A.M. No. 15-05-136-
RTC above-stated.

In a letter[20] dated August 25, 2017, respondent manifested to this Court that on
May 4, 2017, Judge-Designate Dennis R. Pastrana (Judge Pastrana) of the RTC of
Boac, Marinduque, granted his Motion to Quash Search Warrant with Motion to
Suppress Evidence for lack of probable cause and non-conformity with established
constitutional rules and statutory guidelines in the implementation of such search
warrant.[21] In the said May 4, 2017 Order, Judge Pastrana found that the officers
who applied for the search warrant committed deliberate falsehoods to obtain the
same. Thus Judge Pastrana ruled that due to the nullity of the search warrant, the
search conducted on its authority is likewise null and void and with the
inadmissibility of the drugs seized from respondent's home, there is no more
evidence to support his conviction.

Respondent further manifested that his motion to dismiss the criminal cases against
him was also granted by the RTC on August 18, 2017. In the said August 18, 2017
Order,[22] Judge Pastrana added that even the urine test conducted on the
respondent, having been done as a result of an arrest occasioned by the search is
also inadmissible like the seized drugs for being fruits of the poisonous tree.

Thus, in his August 25, 2017 letter,[23] respondent requested for the dismissal of
the instant administrative cases against him in view of the dismissal of the criminal
cases, revocation of his suspension order, and payment of his back salaries and
other benefits withheld during his suspension and detention.

The Issue

The pivotal issue for this Court's resolution is whether or not respondent should be
held administratively liable despite dismissal of the related criminal cases against
him.

This Court's Ruling

Respondent was charged with illegal sale, possession, and use of illegal drugs.
Respondent, however, pounds on the fact that the criminal cases against him from
which these administrative cases rooted, had already been dismissed by virtue of
the quashal of the search warrant and the suppression of the evidence taken by
virtue of the said warrant. It is the respondent's position that since the evidence
obtained through such search warrant were declared illegal and inadmissible by
the RTC, the same cannot likewise be used in the instant administrative cases.
Hence, respondent argued that the administrative cases against him has no leg to
stand on and must be dismissed.

We do not agree.

At the outset, We find it necessary to first place the instant case in its proper
context.

This is an administrative case against a Sheriff of the court charged with the
administrative offenses of grave misconduct and conduct prejudicial to the best
interest of the service as an offshoot of a prior arrest and criminal charges for
violations of RA 9165 or the Comprehensive Dangerous Drugs Act of 2002 against
said officer.

Owing to the administrative nature of the instant case, several important

considerations must be taken into serious account: first, the finding of
administrative guilt is independent of the results of the criminal charges against the
Sheriff; second, the Sheriff stands scrutiny and treated not as an accused in a
criminal case, but as a respondent court officer; third, the Supreme Court, in
taking cognizance of this administrative case, acts not as a prosecutor, but as the
administrative superior specifically tasked to discipline its Members and
personnel; fourth, the quantum of proof required for a finding of administrative
guilt remains to be substantial evidence; and fifth, the paramount interest sought
to be protected in an administrative case is the preservation of the Constitutional
mandate that a public office is a public trust.

Well settled is the rule that an absolution from a criminal charge is not a bar to an
administrative prosecution or vice-versa.[24] Evidence to support a conviction in a
criminal case is not necessary, and the dismissal of the criminal case against the
respondent is not a ground for the dismissal of the administrative case. It bears
stressing that a criminal case is different from an administrative case and each
must be disposed of according to the facts and the law applicable to each
case.[25] Thus, the dismissal of Criminal Case Nos. 62-15 and 63-15 does not
automatically entail the dismissal of the instant administrative actions.

The fact that the pieces of evidence obtained from the voided search were declared
inadmissible for being fruits of the poisonous tree will not result to the outright
dismissal of the administrative cases at bar.

It is necessary to emphasize that to sustain a finding of administrative culpability,

only substantial evidence is required, that is, more than a mere scintilla of relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion,[26] even if other minds equally reasonable might conceivably opine
otherwise.[27] In the case of Ombudsman Marcelo v. Bungubung and CA,[28] this
Court explained:
xxx The standard of substantial evidence is satisfied when there is reasonable
ground to believe that respondent is responsible for the misconduct
complained of, even if such evidence might not be overwhelming or even
preponderant. While substantial evidence does not necessarily import
preponderance of evidence as is required in an ordinary civil case, or evidence
beyond reasonable doubt as is required in criminal cases, it should be enough for
a reasonable mind to support a conclusion. xxx (citations omitted and
emphasis ours)
The question now is, taking into consideration the inadmissibility in the criminal
cases of the drugs obtained by virtue of the search warrant and the positive result
of the confirmatory test conducted on the respondent upon arrest, is there
substantial evidence to hold the respondent administratively liable in this case?

We answer in the affirmative.

Respondent's admission of drug use, albeit with an allegation that he had stopped
doing it as a promise to his mother on her deathbed in December 2014,[29] coupled
with the confirmatory test that yielded a positive result, are more than substantial
evidence to support the conclusion that respondent is a drug-user, which would
warrant this Court's exercise of its disciplinary power over court personnel.

First. Respondent's admission of drugs use during the inquest cannot be considered
as a fruit of the poisonous tree and as such, may legally and validly be admitted as
evidence in the instant administrative case.

It is noteworthy that nowhere in the trial court's order quashing the search warrant
and dismissing the criminal cases did the trial court exclude the respondent's
admission of drug use. This must necessarily be so for two reasons:
(1) The admission partakes of a testimonial evidence, and not a "personal property"
that can be the subject of a search and seizure.
Section 3, Rule 126 of the Rules of Court enumerates the personal property that
may be seized for which a search warrant may be issued: (a) the subject of the
offense; (b) stolen or embezzled and other proceeds, or fruits of the offense; or (c)
used or intended to be used as the means of committing an offense. In Retired
SPO4 Bienvenido Laud v. People[30], We explained that "personal property" as used
under the Rules pertain to the thing's mobility. Referencing Article 416 of the Civil
Code, We expounded that in general, all things which can be transported from place
to place are deemed to be personal property. Testimonial evidence, therefore,
cannot be treated as a "fruit" of the quashed search warrant. People v. Uy[31] was
emphatic in saying that the "inadmissible evidence termed as the fruit of the
poisonous tree" refers to "object, not testimonial, evidence" and even more
constricting when it held that "it refers to an object seized in the course of an illegal
search and seizure."
(2) The admission was already far removed from the illegal search warrant that it
cannot be regarded as a fruit of the poisonous tree.
The lapse of time from the illegal search and the admission itself sufficiently
"attenuate[s] the link."[32] It should be stressed that the adjudged irregularity in the
application and implementation of the search warrant does not have any clear
causal relation between the evidence which was illegally obtained by virtue of such
quashed warrant and respondent's admission before a separate and distinct
proceeding and authority. Stating it in a different manner, the admission cannot be
considered as a logical consequence of the latter. As eloquently put by one Justice's
opinion, "[t]he admission was a voluntary act of respondent; it was not as if he was
put into such an inescapable situation wherein he would be forced to admit to his
guilt, since nothing precluded him from contesting the admissibility - as he did, in
fact, contest the admissibility - of the evidence illegally obtained from him. Thus, as
respondent had valid claims and defenses, it would be a stretch to conclude that
the admission made during the preliminary investigation was a direct result of the
evidence illegally seized from him. That being said, the admission is a distinct and
separate piece of evidence that should not be tarnished by the illegal search
conducted and hence, cannot be deemed as a fruit of poisonous tree."

In the same vein, it would also be not logical nor legal to find nexus between the
arrest which resulted from the illegal search and seizure and the admission during
the preliminary investigation. The admission was made by respondent during the
preliminary investigation stage which is a source independent from the illegal
search, seizure, and arrest, and is presumed to have been regularly performed.
While the search, seizure, arrest and preliminary investigation may be sequential,
the admission made during the preliminary investigation was not a necessary,
logical, and automatic consequence of the search, seizure and resulting arrest. We
must consider that respondent may, or may not have made such admission despite
the search and the arrest. Notably, respondent never questioned the voluntariness
of such admission as well as the regularity of the preliminary investigation.

In Wong Sun v. United States,[33] the U.S. Supreme Court, under the "independent
source exception" - admits evidence that was discovered through an independent
source sufficiently distinguishable to be purged of the primary taint. If the evidence
is not obtained directly from the violation, it is freed from the initial taint of the
violation.[34]

In addition, the admission was made before the Prosecutor (and not before the
erring police agents) who, concededly, had no participation in the illegal search and
arrest. The Prosecutor, during the preliminary investigation, was regularly
performing his duty, relying upon the validity of the search warrant and
respondent's arrest. Hence, respondent's drug use was discovered by the
Prosecutor independently and in good faith.
Verily, the admissibility of respondent's admission in the instant administrative case
cannot be questioned. Said admission is a separate and distinct piece of evidence
that should not be tarnished by the illegal search and thus, cannot be regarded as a
fruit of the poisonous tree. Further, it must be stressed that there is no allegation,
much less proof, that any of respondent's basic rights in giving such admission
were violated. Lastly, respondent's admission of his drug use is relevant for
purposes of the present administrative case and as such, it may properly be
considered by this Court in this administrative proceeding as substantial evidence.

Second. The legal basis of the admissibility of the result of the confirmatory drug
test cannot, likewise, be denied.

The procedure for laboratory examination or test is outlined in Section 38[35] of RA

9165. Section 38 provides that when there is reasonable ground to believe that an
apprehended or arrested offender is under the influence of dangerous drugs, such
offender shall be subjected to a screening laboratory examination or test. The
positive results of a screening test shall be challenged within fifteen (15) days from
the receipt of the results. The positive screening test result is not valid in a court of
law unless confirmed.

Following the prescribed procedure, the confirmatory urine test is therefore not the
direct or indirect result of the illegal search; rather, it comes into play not only upon
the apprehension or arrest of the offender, but also, (1) when the apprehending or
arresting officer has reasonable ground to believe that the offender is under the
influence of dangerous drugs; and (2) only after a screening laboratory test yields a
positive result. The basis for the confirmatory drug test was, in fact, a reasonable
belief of drug use and a positive screening test, both of which are neither a
necessary nor automatic consequence of an illegal search.

Parenthetically, Section 36, Article III of RA 9165 provides for the mandatory drug
testing of:
xxxx

(d) Officers and employees of public and private offices. - Officers and employees of
public and private offices, whether domestic or overseas, shall be subjected to
undergo a random drug test as contained in the company's work rules and
regulations, which shall be borne by the employer, for purposes of reducing the risk
in the workplace. Any officer or employee found positive for use of dangerous drugs
shall be dealt with administratively which shall be a ground for suspension or
termination, subject to the provisions of Article 282 of the Labor Code and pertinent
provisions of the Civil Service Law;

xxxx

(f) All persons charged before the prosecutor's office with a criminal offense having
an imposable penalty of imprisonment of not less than six (6) years and one (1)
day shall have to undergo a mandatory drug test; and
xxxx

In addition to the above-stated penalties in this Section, those found to be positive

for dangerous drugs use shall be subject to the provisions of Section 15[36] of this
Act.
Further, in A.M. No. 06-1-01-SC dated January 17, 2006, the Court has adopted
guidelines for a program to prevent drug use and eliminate the hazards of drug
abuse in the Judiciary, specifically in the first and second level courts. Its objectives
are as follows:
1. To detect the use of dangerous drugs among lower court employees, impose
disciplinary sanctions, and provide administrative remedies in cases where an
employee is found positive for dangerous drug use.

2. To discourage the use and abuse of dangerous drugs among first and second
level court employees and enhance awareness of their adverse effects by
information dissemination and periodic random drug testing.

3. To institute other measures that address the menace of drug abuse within the
personnel of the Judiciary.
There is thus no reason to turn a blind eye, for purposes of this administrative
proceeding, on the results of the confirmatory urine test when RA 9165 itself, as
well as this Court's guidelines, sanction the conduct of a mandatory random drug
testing of officers and employees of public and private offices.[37] The character of
the drug test being made at random actually dispenses with the usual requirement
of probable cause. In the case of Social Justice Society (SJS) v. Dangerous Drugs
Board, et al.,[38] We upheld the validity and constitutionality of the mandatory but
random drug testing of officers and employees of both public and private offices.
This is allowed "for purposes of reducing the risk in the workplace." This legitimate
intrusion of privacy in the workplace is upheld because an employee's privacy
interest is "circumscribed by the company's work policies, the collective bargaining
agreement, if any, entered into by management and the bargaining unit, and the
inherent right of the employer to maintain discipline and efficiency in the
workplace."[39] Specifically, as regards public officers, this Court pronounced in SJS
that:
Like their counterparts in the private sector, government officials and employees
also labor under reasonable supervision and restrictions imposed by the Civil
Service law and other laws on public officers, all enacted to promote a high
standard of ethics in the public service. And if RA 9165 passes the norm of
reasonableness for private employees, the more reason that it should pass the test
for civil servants, who, by constitutional command, are required to be accountable
at all times to the people and to serve them with utmost responsibility and
efficiency.[40]
Thus, despite the absence of probable cause, and the basis being only a positive
drug test result, an employer is allowed by law to pursue an administrative case
against the public or private officer or employee and thereafter, to suspend or
terminate them.

Notably, in the instant administrative matter, respondent never questioned the

authenticity, validity, and regularity of Chemistry Report No. CRIMDT-005-15[41] of
the Marinduque Provincial Crime Laboratory Office. No objection or question was
raised as to the regularity of the conduct of the confirmatory test. The finding of
respondent's positive use of methamphetamine hydrochloride or shabu remains
unrebutted. Certainly, such compelling evidence cannot merely be ignored.

The foregoing pieces of evidence thus constitute more than substantial evidence
that respondent was found positive for illegal drugs use. The confirmatory drug test
which yielded a positive result confirms respondent's admission of drug use and
also, reflects respondent's propensity to lie as it negates his statement in his
admission that he already stopped using illegal drugs.

With the admissibility, relevance, and probative value of the subject evidence being
established, We now proceed to rule on respondent's infraction and the proper
sanction therefor.

Misconduct has been defined as:

xxx a transgression of some established and definite rule of action, a forbidden act,
a dereliction of duty, unlawful behavior, willful in character, improper or wrong
behavior. The misconduct is grave if it involves any of the additional elements of
corruption, willful intent to violate the law, or to disregard established rules, which
must be established by substantial evidence. As distinguished from simple
misconduct, the elements of corruption, clear intent to violate the law, or flagrant
disregard of established rule, must be manifest in a charge grave misconduct.[42]
There is no doubt that the use of prohibited drugs constitute grave misconduct. It is
a flagrant violation of the law, in fact a crime in itself, thus considered as grave
misconduct. In Re: Administrative Charge of Misconduct Relative to the Alleged Use
of Prohibited Drug ("Shabu") of Reynard B. Castor, Electrician II, Maintenance
Division, Office of Administrative Services,[43] the Court ruled that under Section
46(A)(3), Rule 10 of the Revised Rules on Administrative Cases in the Civil Service
(RRACCS), grave misconduct is a grave offense punishable by dismissal even for
the first offense. Also, under Civil Service Memorandum Circular No. 13, series of
2010,[44] any official or employee found positive for use of dangerous drugs shall be
subjected to disciplinary/administrative proceedings with a penalty of dismissal
from the service at first offense pursuant to Section 46(19) of Book V of Executive
Order (E.O.) 292 and Section 22(c) of its Omnibus Rules Implementing Book V of
E.O. No. 292 and other pertinent civil service laws.[45]

Further, undeniably, respondent's conduct tarnished the very image and integrity of
the Judiciary,[46] constitutive of a conduct prejudicial to the best interest of the
service. Conduct prejudicial to the best interest of the service is classified as a
grave offense under Section 22(c) of the Omnibus Rules, with a corresponding
penalty of suspension for six (6) months and one (1) day to one (1) year for the
first offense, and the penalty of dismissal for the second offense.

Section 50 of the RRACCS provides:

Section 50. Penalty for the Most Serious Offense. - If the respondent is found guilty
of two (2) or more charges or counts, the penalty to be imposed should be that
corresponding to the most serious charge and the rest shall be considered as
aggravating circumstances.
Finding respondent guilty of both grave misconduct and conduct prejudicial to the
best interest of the service, We find the penalty of dismissal for grave misconduct,
the most serious offense in this case, proper, pursuant to the aforecited
provision.[47] Besides, respondent's propensity to lie as above-mentioned, which
bolsters a finding of moral turpitude, thus aggravating the offense, cannot go
unnoticed.

In all, the absurd consequences of excluding the seized evidence in this

administrative case, constrain Us to hold respondent Sheriff administratively liable.
Here is an officer of the court and an agent of law who is an admitted drug-user as
evidenced by his admission during the preliminary investigation and the positive
result of his confirmatory drug test, who will walk scot-free and whose claimed right
to hold his public office will be sustained by this Court if We will heed to the dissent
and dismiss these administrative cases merely because the related criminal cases
were dismissed due to the quashal of the search warrant. We have, in the past,
meted severe penalties against erring Court employees on the basis of mere
affidavits or on mere allegations spelled in the pleadings filed. There is no reason
for the Court to treat the instant administrative case differently, when the evidence
is far more compelling.

We always have to keep in mind the primordial consideration in resolving

disciplinary actions. The paramount interest sought to be protected in an
administrative case is the preservation of the Constitutional mandate that a public
office is a public trust. It must be remembered that no person has a vested right to
a public office, the same not being property within the contemplation of the
constitutional guarantee. In the case of Office of the Court Administrator v. Reyes,
et al.,[48] where We dismissed an RTC clerk mainly for yielding a positive result in a
drug test, We ruled:
This Court is a temple of justice. Its basic duty and responsibility is the dispensation
of justice. As dispensers of justice, all members and employees of the Judiciary are
expected to adhere strictly to the laws of the land, one of which is Republic Act No.
9165 which prohibits the use of dangerous drugs.

The Court has adhered to the policy of safeguarding the welfare, efficiency, and
well-being not only of all the court personnel, but also that of the general public
whom it serves. The Court will not allow its frontline representatives xxx to put at
risk the integrity of the whole judiciary. xxx.[49]
This Court's mandate to preserve and maintain the public's faith in the Judiciary, as
well as its honor, dignity, integrity, can only be achieved by imposing strict and
rigid standards of decency and propriety governing the conduct of Justices, judges,
and court employees. Thus, it is only by weeding out the likes of respondent from
the ranks that We would be able to achieve such objective.

WHEREFORE, finding Rogelio M. Salazar, Jr., Sheriff IV, Regional Trial Court -
Office of the Clerk of Court, Boac, Marinduque, liable for grave misconduct and
conduct prejudicial to the best interest of the service due to his drug use, the Court
orders his DISMISSAL from service with FORFEITURE of all benefits, except
accrued leave credits, and with prejudice to reemployment in any branch or
instrumentality of the government including government-owned or controlled
corporations. This decision is immediately executory.

SO ORDERED.

Bersamin, C. J., Carpio, Peralta, Del Castillo, Perlas-Bernabe, Jardeleza, Tijam, A.

Reyes, Jr., Gesmundo, J. Reyes, Jr., and Hernando, JJ., concur.
Leonen, J., see separate opinion.
Carandang, J., on leave.

SEPARATE CONCURRING OPINION

PER CURIAM:

I.

I concur. Respondent Rogelio M. Salazar, Jr. (respondent) should be held

administratively liable for grave misconduct and conduct prejudicial to the best
interest of the service in view of his admitted drug use, and thus, ought to be
dismissed from service. I do, however, find it fitting to expound on the parameters
of the exclusionary rule under Section 3 (2), Article III of the 1987 Constitution in
order to address respondent's averments in his August 25, 2017 letter[1] to this
Court.

To recount, in said letter, respondent requested for the dismissal of the instant
administrative cases due to the prior dismissal of Criminal Case Nos. 62-15 (for
violation of Section 15 in relation to Section 28 of Republic Act No. [RA] 9165) and
63-15 (for violation of Section 11 in relation to Section 28 of RA 9165) after the
Regional Trial Court (RTC) ruled that the drugs seized under the void search
warrant, as well as the fruits thereof (i.e., the results of the confirmatory drug
test), were inadmissible in evidence by operation of the exclusionary
rule.[2] Notably, the documents relative to the foregoing criminal cases were
forwarded to the Office of Administrative Services, Office of the Court Administrator
and hence, spurred these administrative cases against respondent.[3] Thus, as
presented in the ponencia, "[i]t is respondent's position that since the evidence
obtained through such search warrant were declared illegal and inadmissible by
the RTC, the same cannot likewise be used in the instant administrative cases
[which hence] have no leg to stand on and must be dismissed."[4]

II.

It is well settled that "an administrative case is independent from the criminal
action, although both arose from the same act or omission xxx. Given the
differences in the quantum of evidence required, the procedure observed, the
sanctions imposed, as well as in the objective of the two proceedings, the findings
and conclusions in one should not necessarily be binding on the other. Thus, as a
rule, exoneration in the administrative case is not a bar to a criminal prosecution
for the same or similar acts which were the subject of the administrative complaint
or vice versa."[5]

Nevertheless, the demarcations between administrative and criminal cases do not

negate the general application of the exclusionary rule to both of these cases under
the Constitution's present formulation.

The exclusionary rule is found under Section 3 (2), Article III of the 1987
Constitution, to wit:
Section 3. (1) The privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public safety or order requires
otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall
be inadmissible for any purpose in any proceeding. (Emphasis and
underscoring supplied)
The "preceding section" referred to in Section 3 (2) pertains to the guarantee
against unreasonable searches and seizures found under Section 2, Article III:
Section 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. (Emphasis and
underscoring supplied)
According to case law, the exclusionary rule is the "practical means of enforcing the
constitutional injunction against unreasonable searches and seizures."[6] In the
language of Judge Learned Hand:
As we understand it, the reason for the exclusion of evidence competent as such,
which has been unlawfully acquired, is that exclusion is the only practical way of
enforcing the constitutional privilege. In earlier times the action of trespass against
the offending official may have been protection enough; but that is true no longer.
Only in case the prosecution which itself controls the seizing officials, knows that it
cannot profit by their wrong, will that wrong be repressed.[7]
In simple terms, the purpose of the exclusionary rule is to deter law enforcement in
engaging in fishing expeditions,[8] and ultimately, protect the right of the people
against unreasonable searches and seizures.

Our constitutional guarantee against unreasonable searches and seizures is an

almost faithful reproduction of the Fourth Amendment to the United States of
America (US) Constitution, viz.:
ARTICLE [IV] (Amendment 4 - Search and Seizure) The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
However, it should be highlighted that under the Fourth Amendment, the phrase "of
whatever nature and for any purpose" does not appear as a qualifier to the above-
stated right.

Furthermore, the US Constitution does not contain a corresponding exclusionary

rule. Tracing its origins from the cases of Boyd v. United States
(Boyd)[9] and Weeks v. United States,[10] the exclusionary rule in the US has been
regarded as a "prophylactic doctrine"[11] created by the Judiciary in relation to the
Fourth and Fifth Amendments.[12] As there was no standard exclusionary rule
codified in the US Constitution, it therefore appears that its application -
particularly, in administrative disciplinary cases - remains nuanced by the attending
circumstances.

To illustrate, in Department of Transportation v. State Personnel Board,[13] the

Court of Appeal of the Second District of California refused to apply the
exclusionary rule since the social consequences of applying the same did not
outweigh the effect thereof on the integrity of the judicial process. Thus, the court
did not favor its application to shield an erring government employee from
administrative sanction.

On the other hand, in Dyson v. State Personnel Board,[14] the Court of Appeal of the
Third Appellate District of California applied the exclusionary rule, holding that
"because of the particular nature of the investigation of this case and the extent of
agency involvement, xxx the exclusionary rule applies to remedy the agency
invasion of its employee's constitutional rights."

Meanwhile, in City of Omaha v. Savard-Henson,[15] the Court of Appeals of

Nebraska opined that the exclusionary rule should not be extended to
administrative proceedings where its purpose of deterring police conduct would not
be served. Nevertheless, if the balancing test finds that the social benefits of
excluding unlawfully seized evidence outweighs the likely costs, it may apply.

In the Philippines, the exclusionary rule was similarly brought to light through
jurisprudential pronouncements. The rule first appeared in Kheytin v.Villareal
(Kheytin),[16] wherein Boyd was cited as basis. While the exclusionary rule had been
utilized in cases succeeding Kheytin,[17] the Court halted its application in the case
of Moncado v. Peoples Court.[18] Moncado's abandonment of the exclusionary rule
echoed in subsequent jurisprudence until the case of Stonehill v.
Diokno (Stonehill),[19] wherein its application was reinstated. In Stonehill, the Court
rationalized that:
Indeed, the non-exclusionary rule is contrary, not only to the letter, but, also, to
spirit of the constitutional injunction against unreasonable searches and seizures.
To be sure, if the applicant for a search warrant has competent evidence to
establish probable cause of the commission of a given crime by the party against
whom the warrant is intended, then there is no reason why the applicant should not
comply with the requirements of the fundamental law. Upon the other hand, if he
has no such competent evidence, then it is not possible for the judge to find that
there is probable cause, and, hence, no justification for the issuance of the warrant.
The only possible explanation (not justification) for its issuance is the necessity of
fishing evidence of the commission of a crime. But, then, this fishing expedition is
indicative of the absence of evidence to establish a probable cause.

Moreover, the theory that the criminal prosecution of those who secure an illegal
search warrant and/or make unreasonable searches or seizures would suffice to
protect the constitutional guarantee under consideration, overlooks the fact that
violations thereof are, in general, committed by agents of the party in power, for,
certainly, those belonging to the minority could not possibly abuse a power they do
not have. Regardless of the handicap under which the minority usually - but,
understandably - finds itself in prosecuting agents of the majority, one must not
lose sight of the fact that the psychological and moral effect of the possibility of
securing their conviction, is watered down by the pardoning power of the party for
whose benefit the illegality had been committed.[20]
In contrast to the US experience, our evolving jurisprudence on the exclusionary
rule culminated in its express incorporation in Section 4 (2), Article IV of
the 1973 Constitution. Significantly, this ensured the firm application of the
exclusionary rule in our jurisdiction.[21] As one constitutionalist pointed out, "by
making such evidence inadmissible, the Constitution has closed the door to any
judicial temptation to erode the rule by distinguishing and splitting
hairs."[22] Therefore, the very act of expressly incorporating the exclusionary rule in
our fundamental law begs a different treatment of the same from that in the US.

To bolster this point, not only has the exclusionary rule been codified in our
Constitution, it is further couched in general and comprehensive language, which is
hence, expressive of its overarching force. As previously stated, the exclusionary
rule applies to any evidence obtained in violation of Section 2, Article III, i.e., the
guarantee against the right to unreasonable searches and seizures, and has the
effect of rendering such evidence inadmissible for any purpose in any proceeding.
The phrase "for any purpose in any proceeding" in Section 3 (2), Article III
correspondingly reflects - as it is made to implement - the equally expansive "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"
under Section 2 as above-said.

Indeed, the phrase "for any purpose in any proceeding" in Section 3 (2), Article III
means that the exclusionary rule should apply in all kinds of cases, whether
criminal, civil, or administrative. It is a cardinal rule in statutory construction that
where the words of a statute are clear, plain, and free from ambiguity, it must be
given its literal meaning and applied without attempted interpretation.[23] Likewise,
if "the language of the subject constitutional provision is plain and unambiguous,
there is no need to resort to extrinsic aids such as records of the Constitutional
Commission."[24] In fact, while there is yet no definitive ruling which traverses
head-on the exclusionary rule's comprehensiveness, it deserves mentioning that
this Court has already applied the same in Anonymous Letter-Complaint against
Morales,[25] an administrative case, and Zulueta v. Court of Appeals,[26] a civil case.
 III.

As for the present matter, it is my humble view that the exclusionary rule finds
application in both the criminal and the administrative cases against respondent. As
mentioned, the primary evidence against respondent is the subject drugs seized
from him. However, these drugs were obtained by virtue of a void search warrant
and hence, fall within the ambit of the exclusionary rule, rendering them
inadmissible in evidence.

Likewise, the exclusionary rule applies to render inadmissible the results of the
confirmatory drug test because it is the direct fruit of the unlawful search and
seizure. In People v. Alicando,[27] the Court explained that "once the primary
source (the 'tree') is shown to have been unlawfully obtained, any secondary or
derivative evidence (the 'fruit') derived from it is also inadmissible. xxx The rule is
based on the principle that evidence illegally obtained by the State should not be
used to gain other evidence because the originally illegally obtained
evidence taints all evidence subsequently obtained."[28]

Section 38 of RA 9165 states that "[a]ny person apprehended or arrested for

violating the provisions of this Act shall be subjected to screening laboratory
examination or test within twenty-four (24) hours, if the apprehending or
arresting officer has reasonable ground to believe that the person
apprehended or arrested, on account of physical signs or symptoms or
other visible or outward manifestation, is under the influence of dangerous
drugs."[29]

In this case, respondent's apprehension was based on the drugs illegally seized
from him. Without said evidence, there would be no reasonable basis for the
apprehending officers to subject respondent to a confirmatory drug test. Thus, the
results thereof should be deemed as fruits of the poisonous tree and perforce,
should be excluded.

These notwithstanding, records disclose that respondent voluntarily admitted before

the public prosecutor during the preliminary investigation that he was a drug user.
As aptly pointed out by the ponencia, "[t]he admission was made by respondent
during the preliminary investigation stage which is a source independent from the
illegal search, seizure, and arrest, and is presumed to have been regularly
performed. xxx Notably, respondent never questioned the voluntariness of such
admission[,] as well as the regularity of the preliminary investigation."[30] As I see
it, there is no clear causal relation between the evidence which were illegally
obtained and the admission made by respondent. The latter is not a logical
consequence of the former. As earlier stated, the admission was a voluntary act of
respondent; he was not put into such an inescapable situation wherein he would be
forced to admit to his guilt, since nothing precluded him from contesting the
admissibility - as he did, in fact, contest the admissibility - of the evidence illegally
obtained from him. Thus, as respondent had valid claims and defenses, it would be
a stretch to conclude that the admission made during the preliminary investigation
was a direct result of the evidence illegally seized from him. That being said, the
admission is a distinct and separate piece of evidence that should not be tarnished
by the illegal search conducted and hence, cannot be deemed as a fruit of the
poisonous tree.

Without a doubt, the admission of respondent constitutes substantial evidence to

hold him administratively liable for grave misconduct and conduct prejudicial to the
best interest of the service. "Substantial evidence is such amount of relevant
evidence that a reasonable mind might accept as adequate to support a conclusion.
The standard of substantial evidence is justified when there is reasonable ground to
believe that respondent is responsible for the misconduct complained of, even if
such evidence is not overwhelming or even preponderant."[31]

An admitted drug user has no place in the ranks of the Judiciary. As the Court held
in Office of the Court Administrator v. Reyes,[32] "all members and employees of the
Judiciary are expected to adhere strictly to the laws of the land, one of which
is [RA 9165] which prohibits the use of dangerous drugs. xxx [T]he conduct
of a person serving the judiciary must, at all times, be characterized by propriety
and decorum and above all else, be above suspicion so as to earn and keep the
respect of the public for the judiciary. The Court would never countenance any
conduct, act or omission on the part of all those in the administration of justice,
which will violate the norm of public accountability and diminish or even just tend to
diminish the faith of the people in the judiciary."[33]

ACCORDINGLY, respondent Rogelio M. Salazar, Jr., Sheriff IV, Regional Trial Court
- Office of the Clerk of Court, Boac, Marinduque, is GUILTY of grave misconduct
and conduct prejudicial to the best interest of the service, and
thus DISMISSED from service, with forfeiture of all benefits, except accrued leave
credits, and with prejudice to his reemployment in any branch or instrumentality of
the government, including government-owned or controlled corporations.

EN BANC

[ A.M. NO. P-08-2519 (FORMERLY A.M. OCA

IPI NO. 05-2155-P), November 19, 2008 ]
ANONYMOUS LETTER-COMPLAINT AGAINST
ATTY. MIGUEL MORALES, CLERK OF COURT, METROPOLITAN
TRIAL COURT OF MANILA

AND

A.M. NO. P-08-2520 (FORMERLY A.M. OCA IPI NO. 05-2156-

 P)

ANONYMOUS LETTER-COMPLAINT AGAINST CLERK OF COURT

ATTY. HENRY P. FAVORITO OF THE OFFICE OF THE CLERK OF
COURT, CLERK OF COURT ATTY. MIGUEL MORALES OF
BRANCH 17, CLERK OF COURT AMIE GRACE ARREOLA OF
BRANCH 4, ADMINISTRATIVE OFFICER III WILLIAM CALDA
OF THE OFFICE OF THE CLERK OF COURT AND
STENOGRAPHER ISABEL SIWA OF BRANCH 16, ALL OF THE
METROPOLITAN TRIAL COURT, MANILA.

RESOLUTION

AUSTRIA-MARTINEZ, J.:

Before the Court are two anonymous complaints: docketed as A.M. No. P-08-
2519 charging Atty. Miguel Morales (Atty. Morales), Branch Clerk of Court, Branch
17, Metropolitan Trial Court (MeTC) of Manila of misconduct; and A.M. No. P-08-
2520 charging Atty. Morales, together with Isabel Siwa (Siwa), Court
Stenographer, Branch 16; William Calda (Calda), Administrative Officer III, Office of
the Clerk of Court (OCC); Amie Grace Arreola (Arreola), Branch Clerk of Court,
Branch 4, and Atty. Henry P. Favorito (Atty. Favorito), Clerk of Court VI, OCC, all of
the MeTC, Manila of misconduct, graft and corruption and moonlighting.

A.M. No. P-08-2519

In an unsigned and undated letter which the Office of the Court Administrator
(OCA) received on February 24, 2005, the writers, who claim to be employees of
the OCC-MeTC of Manila, allege that Atty. Morales, then detailed at the OCC, was
consuming his working hours filing and attending to personal cases, such as
administrative cases against employees in his old sala, using office supplies,
equipment and utilities. The writers aver that Atty. Morales's conduct has
demoralized them and they resorted to filing an anonymous complaint in fear of
retaliation from Atty. Morales.[1]

Assistant Court Administrator (ACA) now Deputy Court Administrator (DCA) Reuben
P. dela Cruz, conducted a discreet investigation on March 8, 2005 to verify the
allegations of the complaint. However, since the office of Atty. Morales was located
at the innermost section of the Docket/Appeals Section of the OCC, DCA Dela Cruz
failed to extensively make an observation of the actuations of Atty. Morales. On
March 16, 2005, a spot investigation was conducted by DCA Dela Cruz together
with four NBI agents, a crime photographer and a support staff. The team was able
to access the personal computer of Atty. Morales and print two documents stored in
its hard drive, a Petition for Relief from Judgment for the case entitled, "Manolo N.
Blanquera, et al. v. Heirs of Lamberto N. Blanquera" in the name of Atty. Jose P.
Icaonapo, Jr. (Atty. Icaonapo) filed with the Court of Appeals, and a Pre-trial Brief
for the case entitled, "Pentacapital Investment Corp. v. Toyoharu Aoki, et al." also
in the name of Atty. Icaonapo, which was filed before Branch 1, Regional Trial Court
(RTC), Manila. Atty. Morales's computer was seized and taken to the custody of the
OCA.[2] Upon Atty. Morales's motion however, the Court ordered the release of said
computer with an order to the Management Information Systems Office of the
Supreme Court to first retrieve the files stored therein.[3]

Atty. Morales filed a letter-complaint addressed to then Chief Justice Hilario G.

Davide, Jr. against DCA Dela Cruz and his companions for alleged conspiracy and
culpable violation of Secs. 1,[4] 2[5] & 3[6] of Art. III of the Constitution relative to
the spot investigation. Said letter-complaint was indorsed by the Chief Justice to
the Court Administrator on March 31, 2005 for appropriate action.[7] Atty. Morales's
wife, Francisca Landicho-Morales also filed a letter-complaint dated February 15,
2005 against Judge Crispin B. Bravo, Presiding Judge of MeTC Branch 16 Manila,
Lenin Bravo, former Clerk of the said branch and Judge Cristina Javalera-Sulit,
Presiding Judge of MeTC Branch 18, Manila for violations of the law and ethical
standards which was indorsed by Chief Justice Davide to the Court Administrator for
preliminary inquiry.[8] Although diligent efforts were made to ascertain from the
OCA Legal Office the current status of Atty. Morales's case against DCA Dela Cruz,
the same however, could not be determined.

Parenthetically, Atty. Favorito, together with more than a hundred employees of the
MeTC Manila, wrote an undated letter to Chief Justice Davide assailing the spot
investigation conducted by DCA Dela Cruz.[9] Said letter was indorsed by Chief
Justice Davide to DCA Dela Cruz on March 28, 2005 for his comment.[10] No
comment can be found in the records of herein administrative cases.

In a 1st Indorsement dated April 14, 2005, then Court Administrator Presbitero J.
Velasco, Jr. (now Associate Justice of the Supreme Court) directed Atty. Morales to
comment on the undated anonymous letter-complaint.[11]

In his Manifestation which the OCA received on April 27, 2005,

Atty. Morales alleged that: the anonymous letter-complaint should not have been
given due course as there is no truth to the allegations therein; the OCA took
almost a year to act on the anonymous letter-complaint which did not have the
proper indorsement from the Office of the Chief Justice; even though he brought to
the OCC his personal computer, such act is not prohibited; he did not use his
computer to write pleadings during office hours and neither did he use paper of the
OCC; the "raid" conducted by DCA Dela Cruz without search and seizure orders
violated his right to privacy and the articles seized therewith should be considered
inadmissible.[12]

In a letter dated April 12, 2005, Atty. Morales applied for optional
retirement[13] which the Court approved in its Resolution dated October 12, 2005
subject to the withholding of his benefits pending resolution of cases against him,
the instant case included.[14]

A.M. No. P-08-2520

In another unsigned letter dated April 1, 2004, the writers who claim to be
employees of the OCC-MeTC, Manila, charge Atty. Morales, Arreola, Atty. Favorito,
Calda and Siwa of the following offenses: Atty. Morales and Arreola, who are both
detailed in the OCC, leave the office after logging-in only to return in the afternoon,
which acts are allowed by Atty. Favorito; Atty. Morales and Arreola were not given
assignments and whenever they are at the office, they do nothing but play
computer games; Siwa is also allowed by Atty. Favorito to lend money and
rediscount checks during office hours using court premises; many people from
different offices go to the OCC because of the business of Siwa; Atty. Favorito also
allows two of Siwa's personal maids to use the OCC as their office in rediscounting
checks; and Atty. Favorito and Calda charge P50.00 to P500.00 from sureties
claiming said amounts to be processing fees without issuing receipts therefor.[15]

In the same spot investigation conducted by DCA De La Cruz on March 16, 2005, a
partly hidden plastic box was discovered containing the amount of P65,390.00 and
six commercial checks, which Siwa voluntarily opened to the team. These were also
confiscated and turned over to the custody of the OCA.[16]

In a letter to then Chief Justice Davide dated April 12, 2005, Siwa requested that
said money and personal belongings that were confiscated be returned to her
immediately and that a formal investigation be conducted regarding DCA Dela
Cruz's conduct during the spot investigation.[17] The seized items were later
returned to Siwa[18] while her letter-complaint was indorsed by the Chief Justice to
the Court Administrator on April 18, 2005 for appropriate action.[19] As with the
complaint filed by Atty. Morales, however, the status of Siwa's complaint could not
be ascertained despite diligent efforts at inquiring about the matter from the OCA
Legal Office.
In a 1st Indorsement dated April 14, 2005, the OCA directed Atty. Morales, Atty.
Favorito, Calda, Arreola and Siwa to comment on the letter-complaint.[20]

Atty. Morales submitted the same Manifestation he submitted in A.M. P-08-2519.

Siwa in her Comment avers that: the anonymous letter-complaint should not have
been given due course as it contravened Sec. 46(c) of Executive Order No. 292 and
the implementing rules; it was not subscribed and sworn to by the complainant and
there is no obvious truth to the allegations therein; while she admits that she is
involved in the business of rediscounting checks, such is a legitimate endeavor, in
fact, there are other employees of the court engaged in the same business; she is
also not aware of any rule prohibiting her from engaging in said endeavor; she does
not use the OCC to conduct her business and she is mindful of her duties as a
government employee; thus, she has a staff to do the encashment of the checks;
there were rare occasions when her staff members were stationed at the corridors
to lend cash to employees but while said occasions may have occurred during office
hours, her staff cannot be blamed for the same since the employees go to them;
she has never neglected her duty as a court stenographer -- in fact, her last
performance rating was "very satisfactory"; it is a known fact that because of the
meager pay given to government employees, most augment their income by
engaging in business; she should not be singled out for being enterprising and
industrious; and it is unfair to accuse her of wrongdoing at a time when she has
voluntarily retired from government service due to health reasons.[21]

A month after the incident, Siwa filed for optional retirement[22] which the Court
approved in its Resolution[23] dated October 12, 2005, with the proviso that the
amount of P30,000.00 shall be retained from the money value of her earned leave
credits pending resolution of the present case.

Calda explains in his letter dated April 25, 2005 that: the fees of P50.00 and
P500.00 were charged in connection with the filing of surety and cash bonds
pursuant to Rule 141 of the Revised Rules of Court and that corresponding official
receipts were issued; at nighttime, he is the one authorized to approve the filing of
surety bonds since he is the highest ranking officer of a skeletal force detailed for
night court duty; he has been with the MeTC for 16 years, rose in rank, was never
involved in any controversy and would never tarnish his reputation.[24]

Arreola asserts that: her record of arrival and departure was always signed by her
superiors without question because it reflected the correct entries; she is always in
the office even when there is typhoon; and she has proven herself useful in the
OCC by answering queries of litigants and verifications from other offices and
attending to complaints.[25]
In compliance, Atty. Favorito adopted the comments of Atty. Morales, Calda and
Arreola and denied that he committed the acts alluded to in the anonymous letter-
complaint.[26] Atty. Favorito also incorporated in his comment a letter of the
employees of the OCC-MTC Manila disowning the alleged anonymous complaint.[27]

In a Resolution dated July 27, 2005, the Court, upon recommendation of the OCA,
consolidated the two complaints and referred the same to the Executive Judge of
the MeTC, Manila for investigation, report and recommendation.[28]

Report of the Investigating Judge

In her Report dated September 1, 2006, MeTC Executive Judge Ma. Theresa
Dolores C. Gomez-Estoesta states that discreet observation of the daily working
activities of Atty. Morales and Siwa could no longer be done as the two had already
availed themselves of their optional retirement; thus, random interviews with
employees who had proximate working activities with them were resorted to, as
well as perusal of court records.[29]

The following employees were interviewed: Rueben Duque, Clerk of Court, Branch
16, MeTC; Beneluz Dumlao, Records Officer I; Marilou Magbag, Clerk III; Estrella
Rafael, Records Officer I; Lydia dela Cruz, Records Officer III; Raymundo Bilbao,
Clerk III; Marie Joy Valle, Clerk IV, and Ma. Lizabeth Marcelino, Administrative
Officer II, all of the OCC; Rosie Jose, freelance bondswoman, and Norberto D.
Soriano, authorized representative of the Commonwealth Insurance Company.[30]

After conducting her investigation, Judge Estoesta found:

Insofar as Atty. Morales, Atty. Favorito, Calda and Arreola are concerned, the
investigation immediately stumbled into a dead end. No one from the OCC
personnel who were interviewed would give a categorical and positive statement
affirming the charges against the said personnel. While almost all confirmed that
Atty. Morales maintained his own computer and printer at the OCC, nobody could
state for certain that what he worked on were pleadings for private cases. Rafael,
who was seated right next to Atty. Morales at the OCC merely said that what
preoccupied Atty. Morales were his own administrative cases. She did not notice
Atty. Morales engage in private work in his computer although she saw Atty.
Icaonapo drop by the office every now and then to personally see Atty. Morales.
Rafael explained however that this could be because Atty. Icaonapo was the
counsel of Atty. Morales in his administrative cases. While documents referring to
private cases were found in the hard drive of the computer of Atty. Morales, and
while the writing style is similar to that of the Manifestation he filed in this case,
still no definite conclusion could be drawn that he has composed the said pleadings
at the OCC during official working hours. A close examination of the Pre-Trial Brief
signed by Atty. Icaonapo and filed with the RTC Branch 1, Manila also revealed that
the paper and the printer used were not the same as that used in the office of
Atty. Morales.[31]

There was also no evidence to support charges of extortion against Atty. Favorito
and Calda. Two bondsmen who were randomly interviewed denied that Atty.
Favorito and Calda exacted illegal sums from them. The amounts they charged
could actually refer to legal fees.[32]

As to Arreola, the charge against her also has no basis. The interviewees were
unanimous in saying that Arreola was always around the office, and that while she
fetched her son from a nearby school, she did so during lunch or after office hours.
Random checks on Arreola also revealed that she was always at the OCC and at
Branch 30 where she was reassigned.[33]

As to Siwa, she candidly admitted that she was engaged in lending and discounting
activities at her station, through her own staff which she had maintained for said
purpose. Because of her business, a number of employees, even those from other
government agencies, usually huddled at her station to hold transactions. Branch
Clerk of Court Ruben Duque relates that a number of people would often go to their
office looking for Siwa for lending and rediscounting. Assuming that Siwa is not
prohibited from engaging in said business, still it has distracted her from her duties
as a stenographer. A random check on the court records of Branch 16 showed that
Siwa had not yet submitted a complete transcription of 7 stenographic notes in 5
cases, 3 of which already had decisions rendered. In one case, the testimonies of
two prosecution witnesses had to be re-taken to fill in the gap which not only
wasted precious time of the court but also distressed the efforts of the prosecution
in the presentation of its case.[34]

Judge Estoesta recommended as follows:

1. In OCA IPI No. 05-2155-P [now A.M. No. P-08-2519], with no

substantial evidence taken to prove the charges in the anonymous letter-
complaint filed against Atty. Miguel C. Morales, it is RECOMMENDED that the
same be ordered dismissed;

2. In OCA IPI No. 05-2156-P [now A.M. No. P-2520], likewise, with no
substantial evidence taken to prove the charges in the anonymous letter-
complaint filed against Atty. Miguel C. Morales, Atty. Henry P. Favorito,
William Calda and Amie Grace Arreola, it is RECOMMENDED that the same be
ordered dismissed insofar as said court employees are concerned; and
 3. In OCA IPI No. 05-2156-P [now A.M. No. P-08-2520] insofar as it
concerns Ms. Isabel Siwa, it is RECOMMENDED that she be directed to
explain why she still has stenographic notes pending for transcription despite
having already availed of an optional retirement pay.[35]

The report was referred to the OCA for its evaluation, report and
recommendation.[36]

OCA Report and Recommendation

The OCA, through ACA Antonio H. Dujua, in its November 7, 2007 Memorandum,
states that it does not entirely concur with the findings and recommendation of
Judge Estoesta.

Instead the OCA submits the following findings.

On Atty. Morales: The allegation that Atty. Morales had been using his personal
computer to draft pleadings for private counsels was established in the spot
inspection on March 16, 2005. The hard drive of Atty. Morales's computer yielded a
pre-trial brief and a petition for relief from judgment with the name of Atty.
Icaonapo. The said pre-trial brief was the same pleading that was submitted to RTC
Branch 1, Manila by Atty. Icaonapo on February 10, 2003. Atty. Morales in his
Manifestation dated April 25, 2005 failed to refute the evidence that emanated from
his computer and instead chided the OCA for confiscating the same.

On Siwa: While she insisted that the anonymous letter should not have been given
due course, she admitted in her April 28, 2005 Manifestation to being involved in
the business of rediscounting checks, claiming that she was not the only employee
engaged in the same, and that she maintained her own personnel to do the
rediscounting which stretched to the premises of the MeTC-OCC where Atty.
Favorito is the Clerk of Court.[37]

The OCA concluded that: Atty. Morales and Siwa should be found guilty of gross
misconduct. Atty. Morales, for preparing pleadings for private counsels and
litigants; and Siwa, for engaging in the business of rediscounting checks during
office hours; gross misconduct carries the penalty of dismissal from the service
even for the first offense, and while Atty. Morales and Siwa have already left the
judiciary, the Court can still direct the forfeiture of their benefits; Atty. Favorito
should also be held liable for neglect of duty because as Clerk of Court of the MeTC-
OCC, he was negligent in allowing the nefarious activities of Atty. Morales and Siwa
to happen right inside the confines of the MeTC-OCC.[38]

On Arreola and Calda: The OCA agrees with Judge Estoesta that the charges
against them should be dismissed for lack of concrete evidence.[39]

The OCA then recommended:

(a) That (resigned) Clerk of Court Miguel C. Morales, Branch 17, and (retired) Court Stenographer
Isabel A. Siwa, Branch 16, both of the Metropolitan Trial Court, Manila be found GUILTY of Gross
Misconduct with forfeiture of the benefits due them excluding accrued leave credits;

(b) That Clerk of Court Henry P. Favorito of the MeTC-OCC, Manila be found GUILTY of Simple Neglect
of Duty and suspended without pay for a period of one (1) month and one (1) day, with a stern
warning that a repetition of the same or similar acts in the future shall be dealt with more severely;
and

(c) That the charges made in the April 1, 2004 anonymous letter against Clerk of Court Amie Grace A.
Arreola, Branch 4 and Administrative Officer III William Calda, OCC, both of the MeTC, Manila be
DISMISSED for lack of merit.[40]

The Court's Ruling.

The Court partly adopts the findings and recommendations of the OCA with some
modifications.

An anonymous complaint is always received with great caution, originating as it

does from an unknown author. Such a complaint, however does not justify outright
dismissal for being baseless or unfounded for the allegations therein may be easily
verified and may, without much difficulty, be substantiated and established by
other competent evidence. Indeed, complainant's identity would hardly be material
where the matter involved is of public interest.[41]

Liability of Atty. Morales.

The two anonymous letters charge Atty. Morales with the following offenses:
attending to personal cases while using official time, office supplies, equipment and
utilities, leaving the office after logging-in in the morning only to return in the
afternoon, and playing computer games whenever he was at the office.

It is undisputed that pleadings for private cases were found in Atty. Morales's
personal computer in the MeTC-OCC and Atty. Morales could not provide any
satisfactory explanation therefor. Such fact, by itself, could already make
Atty. Morales liable for simple misconduct for it hints of impropriety on his part. The
Court has always stressed that all members of the judiciary should be free from any
whiff of impropriety, not only with respect to their duties in the judicial branch but
also to their behavior outside the court as private individuals, in order that the
integrity and good name of the courts of justice shall be preserved.[42]

Atty. Morales, in defense, argues that since the pleadings were acquired from his
personal computer which DCA Dela Cruz confiscated without any valid search and
seizure order, such evidence should be considered as the fruits of a poisonous tree
as it violated his right to privacy.

Both the Investigating Justice and the OCA failed to discuss this matter. The Court
however finds it proper to squarely address such issue, without prejudice to the
outcome of the administrative case filed by Atty. Morales against DCA Dela Cruz
regarding the same incident. The finding of guilt or exoneration of
Atty. Morales hinges on this very crucial question: Are the pleadings found in
Atty. Morales's personal computer admissible in the present administrative case
against him?

The Court answers in the negative.

Enshrined in our Constitution is the inviolable right of the people to be secure in

their persons and properties against unreasonable searches and seizures, which is
provided for under Section 2, Article III thereof.[43] The exclusionary rule under
Section 3(2), Article III of the Constitution also bars the admission of evidence
obtained in violation of such right.[44] The fact that the present case is
administrative in nature does not render the above principle inoperative. As
expounded in Zulueta v. Court of Appeals,[45] any violation of the aforestated
constitutional right renders the evidence obtained inadmissible for any
purpose in any proceeding.

There are exceptions to this rule one of which is consented warrantless search.[46]

DCA Dela Cruz in his report claims that that they were able to obtain the subject
pleadings with the consent of Atty. Morales.[47] The Court finds however that such
allegation on his part, even with a similar allegation from one of his staff,[48] is not
sufficient to make the present case fall under the category of a valid warrantless
search.

Consent to a search is not to be lightly inferred and must be shown by clear and
convincing evidence.[49] It must be voluntary in order to validate an otherwise
illegal search; that is, the consent must be unequivocal, specific, intelligently given
and uncontaminated by any duress or coercion.[50] The burden of proving, by clear
and positive testimony, that the necessary consent was obtained and that it was
freely and voluntarily given lies with the State.[51] Acquiescence in the loss of
fundamental rights is not to be presumed and courts indulge every
reasonable presumption against waiver of fundamental constitutional
rights.[52] To constitute a valid consent or waiver of the constitutional guarantee
against obtrusive searches, it must be shown that (1) the right exists; (2) that the
person involved had knowledge, either actual or constructive, of the existence of
such right; and (3) the said person had an actual intention to relinquish the
right.[53]

In this case, what is missing is a showing that Atty. Morales had an actual intention
to relinquish his right. While he may have agreed to the opening of his personal
computer and the printing of files therefrom, in the presence of DCA Dela Cruz, his
staff and some NBI agents during the March 16, 2005 spot investigation, it is also
of record that Atty. Morales immediately filed an administrative case against said
persons questioning the validity of the investigation, specifically invoking his
constitutional right against unreasonable search and seizure.

While Atty. Morales may have fallen short of the exacting standards required of
every court employee, unfortunately, the Court cannot use the evidence obtained
from his personal computer against him for it violated his constitutional right.

As the Court has staunchly declared:

The Bill of Rights is the bedrock of constitutional government. If people are stripped
naked of their rights as human beings, democracy cannot survive and government
becomes meaningless. This explains why the Bill of Rights, contained as it is in
Article III of the Constitution, occupies a position of primacy in the fundamental law
way above the articles on governmental power.

The right against unreasonable search and seizure in turn is at the top of the
hierarchy of rights, next only to, if not on the same plane as, the right to life,
liberty and property, which is protected by the due process clause. This is as it
should be for, as stressed by a couple of noted freedom advocates, the right to
personal security which, along with the right to privacy, is the foundation of the
right against unreasonable search and seizure "includes the right to exist, and the
right to enjoyment of life while existing."

xxxx

Unreasonable searches and seizures are the menace against which the
constitutional guarantees afford full protection. While the power to search and seize
may at times be necessary to the public welfare, still it may 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.[54]

And as there is no other evidence, apart from the pleadings, retrieved from the
unduly confiscated personal computer of Atty. Morales, to hold him administratively
liable, the Court has no choice but to dismiss the charges herein against him for
insufficiency of evidence.

Liability of Siwa.

The Court agrees with the OCA that Siwa should be administratively disciplined for
engaging in the business of lending and rediscounting checks.

Siwa admits engaging in the business of lending and rediscounting checks, claiming
that it was a legitimate endeavor needed to augment her meager income as a court
employee; that she is not aware of any rule prohibiting her from engaging in the
business of rediscounting checks; that there are other employees engaged in the
same business; and that she employs her own staff to do the encashment of the
checks as she always attends to and never neglects her duties as a
stenographer.[55]

Siwa is clearly mistaken.

Officials and employees of the judiciary are prohibited from engaging directly in any
private business, vocation, or profession even outside office hours to ensure that
full-time officers of the court render full-time service so that there may be no undue
delay in the administration of justice and in the disposition of cases.[56] The nature
of work of court employees requires them to serve with the highest degree of
efficiency and responsibility and the entire time of judiciary officials and employees
must be devoted to government service to ensure efficient and speedy
administration of justice.[57] Indeed, the Court has always stressed that court
employees must strictly observe official time and devote every second moment of
such time to public service.[58] And while the compensation may be meager, that is
the sacrifice judicial employees must be willing to take.

As pronounced by the Court in Biyaheros Mart Livelihood Association, Inc. v.

Cabusao, Jr.:

Government service demands great sacrifice. One who cannot live with the modest
salary of a public office has no business staying in the service. He is free to seek
greener pastures elsewhere. The public trust character of the office proscribes him
from employing the facilities or using official time for private business or
purposes.[59]

Siwa's offense is compounded by the fact that she was previously verbally
instructed by her superior, MeTC Branch 16 Presiding Judge Crispin B. Bravo, to
stop using court premises for her business. But she ignored the same, prompting
the latter to issue a written Memorandum dated January 18, 2005 asking her to
explain why she was still using the office in "transacting/attending" to her lending
and rediscounting business when she was already verbally instructed to desist
therefrom in December 2004.[60]

Siwa apologized and promised not to let it happen again, in her letter dated January
21, 2005.[61] Siwa also admitted that she was using her house-helper in the
rediscounting of checks and allowed the latter to use the court premises in the
conduct of the same.[62]

Her allegation that she never neglected her duty as a stenographer is also belied by
the findings of the Investigating Judge, who in her random check of records,
discovered that Siwa had not yet submitted a complete transcription of 7
stenographic notes in 5 cases (3 criminal and 2 civil cases), in three of which
decisions were already rendered.[63] In one case, the testimonies of the prosecution
witnesses had to be re-taken.[64] Thus, contrary to Siwa's assertion, she was not
able to satisfactorily perform her duties as a court stenographer while engaging in
private business.

Her argument that her business is a legal endeavor also cannot excuse her from
liability. Many "moonlighting" activities pertain to legal acts that otherwise would be
countenanced if the actors were not employed in the public sector. And while
moonlighting is not normally considered a serious misconduct, nonetheless, by the
very nature of the position held, it amounts to a malfeasance in office.[65]

Siwa conducted her business within the court's premises, which placed the image of
the judiciary, of which she is part, in a bad light. Time and again, the Court has
held that the image of a court of justice is mirrored in the conduct, official and
otherwise, of the personnel who work thereat; thus the conduct of a person serving
the judiciary must, at all times, be characterized by propriety and decorum, and be
above suspicion so as to earn and keep the respect of the public for the judiciary.[66]

Siwa's infraction constitutes conduct prejudicial to the best interest of the service
which, under Sec. 52 A (20) of Rule IV of the Uniform Rules on Administrative
Cases in the Civil Service, carries the penalty of suspension of 6 months and 1 day
to 1 year for the first offense and dismissal for the second offense. Since this is her
first offense and considering the October 12, 2005 Resolution of the Court in A.M.
No. 12096-Ret. which approved Siwa's application for optional retirement, retaining
only the amount of P30,000.00 from the money value of her earned leave credits
pending resolution of the instant case, the Court finds she should be imposed the
penalty of fine in the amount of P30,000.00.

Liability of Atty. Favorito.

There is no evidence to show that Atty. Favorito knows or should have known that
Atty. Morales had copies of pleadings for private cases in his personal computer for
which Atty. Favorito could be held liable for neglect of duty as supervisor. As to
Siwa's lending and rediscounting activities, however, the Court finds that Atty.
Favorito was remiss in addressing said matter which activity took place in the
court's premises which was under his responsibility.

Clarifications, however, should be made.

The OCA in its Memorandum dated November 7, 2007 stated that:

x x x in her April 28, 2005 Manifestation, Siwa admitted to being involved in the
business of rediscounting checks, claiming that 'she is not the only employee
engaged in the same business.' Respondent [Siwa] even had the audacity to admit
that she 'maintained my own personnel' to do the rediscounting which stretched to
the premises of the MeTC-OCC, where respondent Favorito is the Clerk of
Court.[67] (Emphasis supplied)

A review of the records, however, would show that what Siwa submitted is not a
"Manifestation" but a "Comment" dated April 28, 2005 and there, instead of stating
that her rediscounting activities stretched to the premises of the MeTC-OCC, she
actually denied that she used the OCC to conduct said business. Pertinent portions
of said Comment reads:

4.1. Respondent admits that she is involved in the business of rediscounting checks
x x x.

xxxx

4.2. Respondent, however, denies that she uses the Office of the Clerk of Court to
conduct this business x x x.

4.3. There are other occasions when the said staff will be stationed at the corridors
to lend emergency cash to employees in need. The said occasions may have
occurred during office hours, for which, the respondent's staff may not be blamed
since it was the employees themselves who go to them. However, these instances
were rare. It should also be emphasized that these transactions occurred outside of
the offices and within the common or public areas.[68] (Emphasis supplied)

Thus, Siwa never admitted that her business stretched to the premises of the OCC-
MeTC but only claimed that her staff used "corridors" which were "common or
public areas" for their transactions.

Still, Atty. Favorito failed to address such matter and to prevent such activities from
taking place, even if they were conducted in the corridors, since such areas are still
part of the court's premises. As Clerk of Court of the OCC, it is Atty. Favorito's duty
to plan, direct, supervise and coordinate the activities of all divisions/sections/units
in the OCC.[69] He should therefore be reprimanded for his failure to duly supervise
and prevent such activities from happening within his area of responsibility.

Liability of Atty. Favorito and Calda on the extortion charges.

On the claim that Atty. Favorito and Caldo extorted money from sureties without
issuing receipts therefor, the Court finds no cogent reason to deviate from the
findings of the Investigating Judge and the OCA.

Investigating Judge Estoesta found that:

x x x the charges of "extortion" levelled against Atty. Henry P. Favorito and Mr.
William Calda x x x suffered from loose ends.

Random interviews with two (2) bondsmen denied that Atty. Favorito and Mr. Calda
exacted such amounts.

The P50.00 and P500.00 specified to as "processing fee" could actually refer to the
Legal Fees mandated under Section 8 (o) and Section 21 (c) of Rule 141, as follows
xxx

Here, it is obvious that the anonymous letter-complainant has no understanding

whatsoever of the legal fees charged by Office of the Clerk of Court.

This actually hints of the fact that said anonymous letter-complainant may not be a
personnel of the Office of the Clerk of Court after all.

The extortion charge slapped against Atty. Favorito and Mr. Calda, therefore, rings
empty.[70]
Such finding was affirmed by the OCA in its Memorandum dated November 7, 2007
which recommended the dismissal of said charges against Atty. Favorito and Calda
for lack of concrete proof.[71]

Liability of Arreola on absence during office hours.

As with the extortion charges against Atty. Favorito and Calda, the Court finds no
sufficient evidence to hold Arreola administratively liable.

As reported by Judge Estoesta:

x x x the charge against Ms. Amie Grace Arreola regarding her habit of leaving the
office after logging-in found no concrete corroboration.

The interviewees were actually unanimous in saying that Ms. Arreola was not prone
to such habit as she is always around the office. Ms. Arreola may have been known
to fetch her son at a nearby school but she has always done so during lunch hours
and after office hours.

As a matter of fact, at a time when the MeTC was stricken by a debilitating brown-
out schedule in the afternoon sometime [in] July 2006, Ms. Arreola was still around,
having been one of the skeletal force who volunteered to stay on. The undersigned
has personally seen her around 5:30 p.m. of the same day.

As a matter of fact, several random checks on Ms. Arreola by the undersigned

herself revealed that she has always been around at the OCC and at Branch 30
where she was re-assigned as Branch Clerk of Court. At times, personal visits were
made, interspersed by telephone calls between 8:00 a.m. to 10:30 a.m. where Ms.
Arreola proved herself to be always at the office.

Needless to say, therefore, the charge against Ms. Arreola is certainly without
basis.[72]

The OCA agreed with the said finding and likewise recommended the dismissal of
the charges against Arreola.[73]

It is well-settled that in administrative proceedings, the quantum of proof necessary

for a finding of guilt is substantial evidence or such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. The
complainant has the burden of proving, by substantial evidence, the allegations in
the complaint. That is, in the absence of evidence to the contrary, what will prevail
is that respondent has regularly performed his or her duties.[74] Reliance on mere
allegations, conjectures and suppositions will leave an administrative complaint with
no leg to stand on, and charges based on mere suspicion and speculation cannot be
given credence.[75]

Since there is no proof, apart from the allegations of the letter-complaint, to hold
Atty. Favorito, Calda and Arreola liable for the afore- stated charges against them,
the Court deems it proper to dismiss said charges for lack of merit.

Other matters.

In view of the initial findings of Investigating Judge Estoesta that Siwa was remiss
in her duty of transcribing stenographic notes assigned to her, the OCA is hereby
directed to conduct an audit investigation on Siwa's transcription of stenographic
notes to determine the full extent of the notes she failed to transcribe on time. If
warranted, such matter shall be treated as a separate case to be given a new
docket number and assigned to another ponente for evaluation.

The OCA should also report on the status of the complaint filed by
Atty. Morales which the Court received on March 31, 2005, the complaint of Isabel
Siwa dated April 12, 2005, and the letter-complaint of Atty. Favorito together with
other MeTC employees which the Court received on March 28, 2005, against DCA
Dela Cruz, regarding the spot investigation conducted on March 16, 2005 regarding
this case.

WHEREFORE, the Court finds Isabel Siwa, Court Stenographer of Branch 16,
Metropolitan Trial Court, Manila, GUILTY of conduct prejudicial to the best interest
of the service and is FINED in the amount of P30,000.00 to be deducted from the
money value of her leave credits which was set aside per Resolution dated October
12, 2005 in A.M No. 12096-Ret. entitled Application for Retirement Benefits under
Section 13-A of R.A. No. 8291 of Ms. Isabel A. Siwa, Court Stenographer II, MeTC,
Manila, Branch 16.

Atty. Henry P. Favorito, Clerk of Court of the Office of the Clerk of Court
is REPRIMANDED for his failure to supervise the lending and rediscounting
activites of Siwa which took place in the court's premises. The extortion charges
against him are DISMISSED for lack of merit.

The charges against Atty. Miguel Morales, former Branch Clerk of Court, Branch
17, are DISMISSED for insufficiency of evidence. Deputy Court Administrator
Reuben de la Cruz is advised to be more circumspect in the performance of his
duties.
The charges against William Calda, Administrative Officer of the Office of the Clerk
of Court, and Amie Grace Arreola, formerly Branch Clerk of Court of Branch 4
now Clerk of Court of Branch 30, both of the Metropolitan Trial Court of Manila,
are DISMISSED for lack of merit.

The Office of the Court Administrator is DIRECTED to conduct an audit

investigation on Isabel Siwa's transcription of stenographic notes in view of the
finding of Judge Ma. Theresa Dolores C. Gomez-Estoesta in her Investigation Report
dated September 1, 2006 in A.M. No. P-08-2519 and A.M. P-08-2520 (formerly
A.M. OCA IPI No. 05-2155-P and A.M. OCA IPI No. 05-2156-P) that Siwa has not
submitted a complete transcription of stenographic notes in several cases assigned
to her. Said matter shall be treated as a separate case, to be given a new docket
number and assigned to a new ponente for final resolution.

SO ORDERED.

EN BANC
[ G.R. No. 181881, October 18, 2011 ]
BRICCIO "RICKY" A. POLLO, PETITIONER, VS. CHAIRPERSON
KARINA CONSTANTINO-DAVID, DIRECTOR IV RACQUEL DE
GUZMAN BUENSALIDA, DIRECTOR IV LYDIA A. CASTILLO,
DIRECTOR III ENGELBERT ANTHONY D. UNITE AND THE
CIVIL SERVICE COMMISSION, RESPONDENTS.

DECISION

VILLARAMA, JR., J.:

This case involves a search of office computer assigned to a government employee

who was charged administratively and eventually dismissed from the service. The
employee's personal files stored in the computer were used by the government
employer as evidence of misconduct.

Before us is a petition for review on certiorari under Rule 45 which seeks to reverse
and set aside the Decision[1] dated October 11, 2007 and Resolution[2] dated
February 29, 2008 of the Court of Appeals (CA). The CA dismissed the petition for
certiorari (CA-G.R. SP No. 98224) filed by petitioner Briccio "Ricky" A. Pollo to
nullify the proceedings conducted by the Civil Service Commission (CSC) which
found him guilty of dishonesty, grave misconduct, conduct prejudicial to the best
interest of the service, and violation of Republic Act (R.A.) No. 6713 and penalized
him with dismissal.

The factual antecedents:

Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office

No. IV and also the Officer-in-Charge of the Public Assistance and Liaison Division
(PALD) under the "Mamamayan Muna Hindi Mamaya Na" program of the CSC.

On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed

to respondent CSC Chairperson Karina Constantino-David which was marked
"Confidential" and sent through a courier service (LBC) from a certain "Alan San
Pascual" of Bagong Silang, Caloocan City, was received by the Integrated Records
Management Office (IRMO) at the CSC Central Office. Following office practice in
which documents marked "Confidential" are left unopened and instead sent to the
addressee, the aforesaid letter was given directly to Chairperson David.

The letter-complaint reads:

The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City

Dear Madam Chairwoman,

Belated Merry Christmas and Advance Happy New Year!

As a concerned citizen of my beloved country, I would like to ask from you

personally if it is just alright for an employee of your agency to be a lawyer of an
accused gov't employee having a pending case in the csc. I honestly think this is a
violation of law and unfair to others and your office.

I have known that a person have been lawyered by one of your attorny in the
region 4 office. He is the chief of the Mamamayan muna hindi mamaya na division.
He have been helping many who have pending cases in the Csc. The justice in our
govt system will not be served if this will continue. Please investigate this anomaly
because our perception of your clean and good office is being tainted.

Concerned Govt employee[3]

Chairperson David immediately formed a team of four personnel with background in

information technology (IT), and issued a memo directing them to conduct an
investigation and specifically "to back up all the files in the computers found in the
Mamamayan Muna (PALD) and Legal divisions."[4] After some briefing, the team
proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon City. Upon
their arrival thereat around 5:30 p.m., the team informed the officials of the CSC-
ROIV, respondents Director IV Lydia Castillo (Director Castillo) and Director III
Engelbert Unite (Director Unite) of Chairperson David's directive.

The backing-up of all files in the hard disk of computers at the PALD and Legal
Services Division (LSD) was witnessed by several employees, together with
Directors Castillo and Unite who closely monitored said activity. At around 6:00
p.m., Director Unite sent text messages to petitioner and the head of LSD, who
were both out of the office at the time, informing them of the ongoing copying of
computer files in their divisions upon orders of the CSC Chair. The text messages
received by petitioner read:

"Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and
LSD per instruction of the Chairman. If you can make it here now it would be
better."

"All PCs Of PALD and LSD are being backed up per memo of the chair."

"CO IT people arrived just now for this purpose. We were not also informed about
this.

"We can't do anything about ... it ... it's a directive from chair."

"Memo of the chair was referring to an anonymous complaint"; "ill send a copy of
the memo via mms"[5]

Petitioner replied also thru text message that he was leaving the matter to Director
Unite and that he will just get a lawyer. Another text message received by
petitioner from PALD staff also reported the presence of the team from CSC main
office: "Sir may mga taga C.O. daw sa kuarto natin."[6] At around 10:00 p.m. of the
same day, the investigating team finished their task. The next day, all the
computers in the PALD were sealed and secured for the purpose of preserving all
the files stored therein. Several diskettes containing the back-up files sourced from
the hard disk of PALD and LSD computers were turned over to Chairperson David.
The contents of the diskettes were examined by the CSC's Office for Legal Affairs
(OLA). It was found that most of the files in the 17 diskettes containing files copied
from the computer assigned to and being used by the petitioner, numbering about
40 to 42 documents, were draft pleadings or letters[7] in connection with
administrative cases in the CSC and other tribunals. On the basis of this finding,
Chairperson David issued the Show-Cause Order[8] dated January 11, 2007,
requiring the petitioner, who had gone on extended leave, to submit his explanation
or counter-affidavit within five days from notice.

Evaluating the subject documents obtained from petitioner's personal files,

Chairperson David made the following observations:

Most of the foregoing files are drafts of legal pleadings or documents that are
related to or connected with administrative cases that may broadly be lumped as
pending either in the CSCRO No. IV, the CSC-NCR, the CSC-Central Office or other
tribunals. It is also of note that most of these draft pleadings are for and on
behalves of parties, who are facing charges as respondents in administrative cases.
This gives rise to the inference that the one who prepared them was knowingly,
deliberately and willfully aiding and advancing interests adverse and inimical to the
interest of the CSC as the central personnel agency of the government tasked to
discipline misfeasance and malfeasance in the government service. The number of
pleadings so prepared further demonstrates that such person is not merely engaged
in an isolated practice but pursues it with seeming regularity. It would also be the
height of naivete or credulity, and certainly against common human experience, to
believe that the person concerned had engaged in this customary practice without
any consideration, and in fact, one of the retrieved files (item 13 above) appears to
insinuate the collection of fees. That these draft pleadings were obtained from the
computer assigned to Pollo invariably raises the presumption that he was the one
responsible or had a hand in their drafting or preparation since the computer of
origin was within his direct control and disposition.[9]

Petitioner filed his Comment, denying that he is the person referred to in the
anonymous letter-complaint which had no attachments to it, because he is not a
lawyer and neither is he "lawyering" for people with cases in the CSC. He accused
CSC officials of conducting a "fishing expedition" when they unlawfully copied and
printed personal files in his computer, and subsequently asking him to submit his
comment which violated his right against self-incrimination. He asserted that he
had protested the unlawful taking of his computer done while he was on leave,
citing the letter dated January 8, 2007 in which he informed Director Castillo that
the files in his computer were his personal files and those of his sister, relatives,
friends and some associates and that he is not authorizing their sealing, copying,
duplicating and printing as these would violate his constitutional right to privacy
and protection against self-incrimination and warrantless search and seizure. He
pointed out that though government property, the temporary use and ownership of
the computer issued under a Memorandum of Receipt (MR) is ceded to the
employee who may exercise all attributes of ownership, including its use for
personal purposes. As to the anonymous letter, petitioner argued that it is not
actionable as it failed to comply with the requirements of a formal complaint under
the Uniform Rules on Administrative Cases in the Civil Service (URACC). In view of
the illegal search, the files/documents copied from his computer without his
consent is thus inadmissible as evidence, being "fruits of a poisonous tree."[10]

On February 26, 2007, the CSC issued Resolution No. 070382[11] finding prima
facie case against the petitioner and charging him with Dishonesty, Grave
Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of
R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and
Employees). Petitioner was directed to submit his answer under oath within five
days from notice and indicate whether he elects a formal investigation. Since the
charges fall under Section 19 of the URACC, petitioner was likewise placed under 90
days preventive suspension effective immediately upon receipt of the resolution.
Petitioner received a copy of Resolution No. 070382 on March 1, 2007.

Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to

Defer) assailing the formal charge as without basis having proceeded from an illegal
search which is beyond the authority of the CSC Chairman, such power pertaining
solely to the court. Petitioner reiterated that he never aided any people with
pending cases at the CSC and alleged that those files found in his computer were
prepared not by him but by certain persons whom he permitted, at one time or
another, to make use of his computer out of close association or friendship.
Attached to the motion were the affidavit of Atty. Ponciano R. Solosa who entrusted
his own files to be kept at petitioner's CPU and Atty. Eric N. Estrellado, the latter
being Atty. Solosa's client who attested that petitioner had nothing to do with the
pleadings or bill for legal fees because in truth he owed legal fees to Atty. Solosa
and not to petitioner. Petitioner contended that the case should be deferred in view
of the prejudicial question raised in the criminal complaint he filed before the
Ombudsman against Director Buensalida, whom petitioner believes had instigated
this administrative case. He also prayed for the lifting of the preventive suspension
imposed on him. In its Resolution No. 070519[12] dated March 19, 2007, the CSC
denied the omnibus motion. The CSC resolved to treat the said motion as
petitioner's answer.

On March 14, 2007, petitioner filed an Urgent Petition[13] under Rule 65 of the Rules
of Court, docketed as CA-G.R. SP No. 98224, assailing both the January 11, 2007
Show-Cause Order and Resolution No. 070382 dated February 26, 2007 as having
been issued with grave abuse of discretion amounting to excess or total absence of
jurisdiction. Prior to this, however, petitioner lodged an administrative/criminal
complaint against respondents Directors Racquel D.G. Buensalida (Chief of Staff,
Office of the CSC Chairman) and Lydia A. Castillo (CSC-RO IV) before the Office of
the Ombudsman, and a separate complaint for disbarment against Director
Buensalida.[14]

On April 17, 2007, petitioner received a notice of hearing from the CSC setting the
formal investigation of the case on April 30, 2007. On April 25, 2007, he filed in the
CA an Urgent Motion for the issuance of TRO and preliminary injunction.[15] Since he
failed to attend the pre-hearing conference scheduled on April 30, 2007, the CSC
reset the same to May 17, 2007 with warning that the failure of petitioner and/or
his counsel to appear in the said pre-hearing conference shall entitle the
prosecution to proceed with the formal investigation ex-parte.[16] Petitioner moved
to defer or to reset the pre-hearing conference, claiming that the investigation
proceedings should be held in abeyance pending the resolution of his petition by the
CA. The CSC denied his request and again scheduled the pre-hearing conference on
May 18, 2007 with similar warning on the consequences of petitioner and/or his
counsel's non-appearance.[17] This prompted petitioner to file another motion in the
CA, to cite the respondents, including the hearing officer, in indirect contempt.[18]

On June 12, 2007, the CSC issued Resolution No. 071134[19] denying petitioner's
motion to set aside the denial of his motion to defer the proceedings and to inhibit
the designated hearing officer, Atty. Bernard G. Jimenez. The hearing officer was
directed to proceed with the investigation proper with dispatch.

In view of the absence of petitioner and his counsel, and upon the motion of the
prosecution, petitioner was deemed to have waived his right to the formal
investigation which then proceeded ex parte.

On July 24, 2007, the CSC issued Resolution No. 071420,[20] the dispositive part of
which reads:

WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio

A. Pollo, a.k.a. Ricky A. Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct
Prejudicial to the Best Interest of the Service and Violation of Republic Act 6713. He
is meted the penalty of DISMISSAL FROM THE SERVICE with all its accessory
penalties, namely, disqualification to hold public office, forfeiture of retirement
benefits, cancellation of civil service eligibilities and bar from taking future civil
service examinations.[21]

On the paramount issue of the legality of the search conducted on petitioner's

computer, the CSC noted the dearth of jurisprudence relevant to the factual milieu
of this case where the government as employer invades the private files of an
employee stored in the computer assigned to him for his official use, in the course
of initial investigation of possible misconduct committed by said employee and
without the latter's consent or participation. The CSC thus turned to relevant rulings
of the United States Supreme Court, and cited the leading case of O'Connor v.
Ortega[22] as authority for the view that government agencies, in their capacity as
employers, rather than law enforcers, could validly conduct search and seizure in
the governmental workplace without meeting the "probable cause" or warrant
requirement for search and seizure. Another ruling cited by the CSC is the more
recent case of United States v. Mark L. Simons[23] which declared that the federal
agency's computer use policy foreclosed any inference of reasonable expectation of
privacy on the part of its employees. Though the Court therein recognized that such
policy did not, at the same time, erode the respondent's legitimate expectation of
privacy in the office in which the computer was installed, still, the warrantless
search of the employee's office was upheld as valid because a government
employer is entitled to conduct a warrantless search pursuant to an investigation of
work-related misconduct provided the search is reasonable in its inception and
scope.

With the foregoing American jurisprudence as benchmark, the CSC held that
petitioner has no reasonable expectation of privacy with regard to the computer he
was using in the regional office in view of the CSC computer use policy which
unequivocally declared that a CSC employee cannot assert any privacy right to a
computer assigned to him. Even assuming that there was no such administrative
policy, the CSC was of the view that the search of petitioner's computer
successfully passed the test of reasonableness for warrantless searches in the
workplace as enunciated in the aforecited authorities. The CSC stressed that it
pursued the search in its capacity as government employer and that it was
undertaken in connection with an investigation involving work-related misconduct,
which exempts it from the warrant requirement under the Constitution. With the
matter of admissibility of the evidence having been resolved, the CSC then ruled
that the totality of evidence adequately supports the charges of grave misconduct,
dishonesty, conduct prejudicial to the best interest of the service and violation of
R.A. No. 6713 against the petitioner. These grave infractions justified petitioner's
dismissal from the service with all its accessory penalties.

In his Memorandum[24] filed in the CA, petitioner moved to incorporate the above
resolution dismissing him from the service in his main petition, in lieu of the filing of
an appeal via a Rule 43 petition. In a subsequent motion, he likewise prayed for the
inclusion of Resolution No. 071800[25] which denied his motion for reconsideration.

By Decision dated October 11, 2007, the CA dismissed the petition for certiorari
after finding no grave abuse of discretion committed by respondents CSC officials.
The CA held that: (1) petitioner was not charged on the basis of the anonymous
letter but from the initiative of the CSC after a fact-finding investigation was
conducted and the results thereof yielded a prima facie case against him; (2) it
could not be said that in ordering the back-up of files in petitioner's computer and
later confiscating the same, Chairperson David had encroached on the authority of
a judge in view of the CSC computer policy declaring the computers as government
property and that employee-users thereof have no reasonable expectation of
privacy in anything they create, store, send, or receive on the computer system;
and (3) there is nothing contemptuous in CSC's act of proceeding with the formal
investigation as there was no restraining order or injunction issued by the CA.

His motion for reconsideration having been denied by the CA, petitioner brought
this appeal arguing that -

THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED

SERIOUS IRREGULARITY AND BLATANT ERRORS IN LAW AMOUNTING TO GRAVE
ABUSE OF DISCRETION WHEN IT RULED THAT ANONYMOUS COMPLAINT IS
ACTIONABLE UNDER E.O. 292 WHEN IN TRUTH AND IN FACT THE CONTRARY IS
EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8 OF CSC
RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO THE ORIGINAL RULES
PER CSC RESOLUTION NO. 94-0521;

II

THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE ERRORS

IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT
PETITIONER CANNOT INVOKE HIS RIGHT TO PRIVACY, TO UNREASONABLE
SEARCH AND SEIZURE, AGAINST SELF-INCRIMINATION, BY VIRTUE OF OFFICE
MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL MEMORANDUM SIGNED SOLELY
AND EXCLUSIVELY BY RESPONDENT DAVID AND NOT BY THE COLLEGIAL
COMMISSION CONSIDERING THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL
RIGHTS CANNOT BE COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED
TO PROCEDURAL AND ROUTINARY INSTRUCTION;

III
THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF
DISCRETION WHEN IT RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND
THE TAKING OF DOCUMENTS IN THE EVENING THEREOF FROM 7:00 TO 10:00 P.M.
IS NOT GRAVE ABUSE OF DISCRETION LIMITING THE DEFINITION [OF] GRAVE
ABUSE OF DISCRETION TO ONE INVOLVING AND TAINTED WITH PERSONAL
HOSTILITY. IT LIKEWISE ERRED IN HOLDING THAT DATA STORED IN THE
GOVERNMENT COMPUTERS ARE GOVERNMENT PROPERTIES INCLUDING THE
PERSONAL FILES WHEN THE CONTRARY IS PROVIDED UNDER SECTION 14 OF OM.
10 s. 2002. AND GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT
DAVID BY VIRTUE OF O.M. 10 DID NOT ENCROACH ON THE DUTIES AND
FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE III, SECTION 2 OF THE 1987
PHILIPPINE CONSTITUTION;

IV

THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW
ARGUMENTS, ADDITIONAL EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS
FAILURE TO EVALUATE AND TAKE ACTION ON THE 2 MOTIONS TO ADMIT AND
INCORPORATE CSC RESOLUTION NOS. 07-1420 DATED JULY 24, 2007 AND CSC
RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID NOT RULE LIKEWISE
ON THE FOUR URGENT MOTION TO RESOLVE ANCILLARY PRAYER FOR TRO.[26]

Squarely raised by the petitioner is the legality of the search conducted on his office
computer and the copying of his personal files without his knowledge and consent,
alleged as a transgression on his constitutional right to privacy.

The right to privacy has been accorded recognition in this jurisdiction as a facet of
the right protected by the guarantee against unreasonable search and seizure
under Section 2, Article III of the 1987 Constitution,[27] which provides:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined 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 constitutional guarantee is not a prohibition of all searches and seizures but
only of "unreasonable" searches and seizures.[28] But to fully understand this
concept and application for the purpose of resolving the issue at hand, it is essential
that we examine the doctrine in the light of pronouncements in another jurisdiction.
As the Court declared in People v. Marti[29]:

Our present constitutional provision on the guarantee against unreasonable search

and seizure had its origin in the 1935 Charter which, worded as follows:
"The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures shall not be violated, and no warrants
shall issue but upon probable cause, to be determined by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched, and the persons or
things to be seized." (Sec. 1[3], Article III)

was in turn derived almost verbatim from the Fourth Amendment to the United
States Constitution. As such, the Court may turn to the pronouncements of the
United States Federal Supreme Court and State Appellate Courts which are
considered doctrinal in this jurisdiction.[30]

In the 1967 case of Katz v. United States,[31] the US Supreme Court held that the
act of FBI agents in electronically recording a conversation made by petitioner in an
enclosed public telephone booth violated his right to privacy and constituted a
"search and seizure". Because the petitioner had a reasonable expectation of
privacy in using the enclosed booth to make a personal telephone call, the
protection of the Fourth Amendment extends to such area. In the concurring
opinion of Mr. Justice Harlan, it was further noted that the existence of privacy right
under prior decisions involved a two-fold requirement: first, that a person has
exhibited an actual (subjective) expectation of privacy; and second, that the
expectation be one that society is prepared to recognize as reasonable
(objective).[32]

In Mancusi v. DeForte[33] which addressed the reasonable expectations

of private employees in the workplace, the US Supreme Court held that a union
employee had Fourth Amendment rights with regard to an office at union
headquarters that he shared with other union officials, even as the latter or their
guests could enter the office. The Court thus "recognized that employees may have
a reasonable expectation of privacy against intrusions by police."

That the Fourth Amendment equally applies to a government workplace was

addressed in the 1987 case of O'Connor v. Ortega[34] where a physician, Dr. Magno
Ortega, who was employed by a state hospital, claimed a violation of his Fourth
Amendment rights when hospital officials investigating charges of mismanagement
of the psychiatric residency program, sexual harassment of female hospital
employees and other irregularities involving his private patients under the state
medical aid program, searched his office and seized personal items from his desk
and filing cabinets. In that case, the Court categorically declared that "[i]ndividuals
do not lose Fourth Amendment rights merely because they work for the
government instead of a private employer."[35] A plurality of four Justices concurred
that the correct analysis has two steps: first, because "some government offices
may be so open to fellow employees or the public that no expectation of privacy is
reasonable", a court must consider "[t]he operational realities of the workplace" in
order to determine whether an employee's Fourth Amendment rights are
implicated; and next, where an employee has a legitimate privacy expectation, an
employer's intrusion on that expectation "for noninvestigatory, work-related
purposes, as well as for investigations of work-related misconduct, should be
judged by the standard of reasonableness under all the circumstances."[36]

On the matter of government employees' reasonable expectations of privacy in

their workplace, O'Connor teaches:

x x x Public employees' expectations of privacy in their offices, desks, and file

cabinets, like similar expectations of employees in the private sector, may be
reduced by virtue of actual office practices and procedures, or by legitimate
regulation. x x x The employee's expectation of privacy must be assessed in the
context of the employment relation. An office is seldom a private enclave free from
entry by supervisors, other employees, and business and personal invitees.
Instead, in many cases offices are continually entered by fellow employees and
other visitors during the workday for conferences, consultations, and other work-
related visits. Simply put, it is the nature of government offices that others - such
as fellow employees, supervisors, consensual visitors, and the general public - may
have frequent access to an individual's office. We agree with JUSTICE SCALIA that
"[c]onstitutional protection against unreasonable searches by the government does
not disappear merely because the government has the right to make reasonable
intrusions in its capacity as employer," x x x but some government offices may
be so open to fellow employees or the public that no expectation of privacy
is reasonable. x x x Given the great variety of work environments in the
public sector, the question of whether an employee has a reasonable
expectation of privacy must be addressed on a case-by-case
basis.[37] (Citations omitted; emphasis supplied.)

On the basis of the established rule in previous cases, the US Supreme Court
declared that Dr. Ortega's Fourth Amendment rights are implicated only if the
conduct of the hospital officials infringed "an expectation of privacy that society is
prepared to consider as reasonable." Given the undisputed evidence that
respondent Dr. Ortega did not share his desk or file cabinets with any other
employees, kept personal correspondence and other private items in his own office
while those work-related files (on physicians in residency training) were stored
outside his office, and there being no evidence that the hospital had established any
reasonable regulation or policy discouraging employees from storing personal
papers and effects in their desks or file cabinets (although the absence of such a
policy does not create any expectation of privacy where it would not otherwise
exist), the Court concluded that Dr. Ortega has a reasonable expectation of privacy
at least in his desk and file cabinets.[38]

Proceeding to the next inquiry as to whether the search conducted by hospital

officials was reasonable, the O'Connor plurality decision discussed the following
principles:

Having determined that Dr. Ortega had a reasonable expectation of privacy in his
office, the Court of Appeals simply concluded without discussion that the
"search...was not a reasonable search under the fourth amendment." x x x "[t]o
hold that the Fourth Amendment applies to searches conducted by [public
employers] is only to begin the inquiry into the standards governing such
searches...[W]hat is reasonable depends on the context within which a search takes
place. x x x Thus, we must determine the appropriate standard of reasonableness
applicable to the search. A determination of the standard of reasonableness
applicable to a particular class of searches requires "balanc[ing] the nature and
quality of the intrusion on the individual's Fourth Amendment interests against the
importance of the governmental interests alleged to justify the intrusion." x x x In
the case of searches conducted by a public employer, we must balance the
invasion of the employees' legitimate expectations of privacy against the
government's need for supervision, control, and the efficient operation of
the workplace.

xxxx

In our view, requiring an employer to obtain a warrant whenever the employer

wished to enter an employee's office, desk, or file cabinets for a work-related
purpose would seriously disrupt the routine conduct of business and would be
unduly burdensome. Imposing unwieldy warrant procedures in such cases upon
supervisors, who would otherwise have no reason to be familiar with such
procedures, is simply unreasonable. In contrast to other circumstances in which we
have required warrants, supervisors in offices such as at the Hospital are hardly in
the business of investigating the violation of criminal laws. Rather, work-related
searches are merely incident to the primary business of the agency. Under these
circumstances, the imposition of a warrant requirement would conflict with the
"common-sense realization that government offices could not function if every
employment decision became a constitutional matter." x x x

xxxx

The governmental interest justifying work-related intrusions by public employers is

the efficient and proper operation of the workplace. Government agencies provide
myriad services to the public, and the work of these agencies would suffer if
employers were required to have probable cause before they entered an employee's
desk for the purpose of finding a file or piece of office correspondence. Indeed, it is
difficult to give the concept of probable cause, rooted as it is in the criminal
investigatory context, much meaning when the purpose of a search is to retrieve a
file for work-related reasons. Similarly, the concept of probable cause has little
meaning for a routine inventory conducted by public employers for the purpose of
securing state property. x x x To ensure the efficient and proper operation of the
agency, therefore, public employers must be given wide latitude to enter employee
offices for work-related, noninvestigatory reasons.

We come to a similar conclusion for searches conducted pursuant to an

investigation of work-related employee misconduct. Even when employers conduct
an investigation, they have an interest substantially different from "the normal
need for law enforcement." x x x Public employers have an interest in ensuring that
their agencies operate in an effective and efficient manner, and the work of these
agencies inevitably suffers from the inefficiency, incompetence, mismanagement, or
other work-related misfeasance of its employees. Indeed, in many cases, public
employees are entrusted with tremendous responsibility, and the consequences of
their misconduct or incompetence to both the agency and the public interest can be
severe. In contrast to law enforcement officials, therefore, public employers are not
enforcers of the criminal law; instead, public employers have a direct and
overriding interest in ensuring that the work of the agency is conducted in a proper
and efficient manner. In our view, therefore, a probable cause requirement for
searches of the type at issue here would impose intolerable burdens on
public employers. The delay in correcting the employee misconduct caused
by the need for probable cause rather than reasonable suspicion will be
translated into tangible and often irreparable damage to the agency's
work, and ultimately to the public interest. x x x

xxxx

In sum, we conclude that the "special needs, beyond the normal need for law
enforcement make the...probable-cause requirement impracticable," x x x
for legitimate, work-related noninvestigatory intrusions as well as
investigations of work-related misconduct. A standard of reasonableness will
neither unduly burden the efforts of government employers to ensure the efficient
and proper operation of the workplace, nor authorize arbitrary intrusions upon the
privacy of public employees. We hold, therefore, that public employer intrusions
on the constitutionally protected privacy interests of government
employees for noninvestigatory, work-related purposes, as well as
for investigations of work-related misconduct, should be judged by
the standard of reasonableness under all the circumstances. Under this
reasonableness standard, both the inception and the scope of the intrusion
must be reasonable:

"Determining the reasonableness of any search involves a twofold inquiry: first, one
must consider `whether the...action was justified at its inception,' x x x ; second,
one must determine whether the search as actually conducted `was reasonably
related in scope to the circumstances which justified the interference in the first
place,'" x x x

Ordinarily, a search of an employee's office by a supervisor will be "justified

at its inception" when there are reasonable grounds for suspecting that the
search will turn up evidence that the employee is guilty of work-related
misconduct, or that the search is necessary for a noninvestigatory work-
related purpose such as to retrieve a needed file. x x x The search will be
permissible in its scope when "the measures adopted are reasonably
related to the objectives of the search and not excessively intrusive in light
of ...the nature of the [misconduct]." x x x[39] (Citations omitted; emphasis
supplied.)

Since the District Court granted summary judgment without a hearing on the
factual dispute as to the character of the search and neither was there any finding
made as to the scope of the search that was undertaken, the case was remanded to
said court for the determination of the justification for the search and seizure, and
evaluation of the reasonableness of both the inception of the search and its scope.

In O'Connor the Court recognized that "special needs" authorize warrantless

searches involving public employees for work-related reasons. The Court thus laid
down a balancing test under which government interests are weighed against the
employee's reasonable expectation of privacy. This reasonableness test implicates
neither probable cause nor the warrant requirement, which are related to law
enforcement.[40]

O'Connor was applied in subsequent cases raising issues on employees' privacy

rights in the workplace. One of these cases involved a government employer's
search of an office computer, United States v. Mark L. Simons[41] where the
defendant Simons, an employee of a division of the Central Intelligence Agency
(CIA), was convicted of receiving and possessing materials containing child
pornography. Simons was provided with an office which he did not share with
anyone, and a computer with Internet access. The agency had instituted a policy on
computer use stating that employees were to use the Internet for official
government business only and that accessing unlawful material was specifically
prohibited. The policy also stated that users shall understand that the agency will
periodically audit, inspect, and/or monitor the user's Internet access as deemed
appropriate. CIA agents instructed its contractor for the management of the
agency's computer network, upon initial discovery of prohibited internet activity
originating from Simons' computer, to conduct a remote monitoring and
examination of Simons' computer. After confirming that Simons had indeed
downloaded pictures that were pornographic in nature, all the files on the hard
drive of Simon's computer were copied from a remote work station. Days later, the
contractor's representative finally entered Simon's office, removed the original hard
drive on Simon's computer, replaced it with a copy, and gave the original to the
agency security officer. Thereafter, the agency secured warrants and searched
Simons' office in the evening when Simons was not around. The search
team copied the contents of Simons' computer; computer diskettes found in
Simons' desk drawer; computer files stored on the zip drive or on zip drive
diskettes; videotapes; and various documents, including personal correspondence.
At his trial, Simons moved to suppress these evidence, arguing that the searches of
his office and computer violated his Fourth Amendment rights. After a hearing, the
district court denied the motion and Simons was found guilty as charged.

Simons appealed his convictions. The US Supreme Court ruled that the searches of
Simons' computer and office did not violate his Fourth Amendment rights and the
first search warrant was valid. It held that the search remains valid under
the O'Connor exception to the warrant requirement because evidence of the crime
was discovered in the course of an otherwise proper administrative inspection.
Simons' violation of the agency's Internet policy happened also to be a violation of
criminal law; this does not mean that said employer lost the capacity and interests
of an employer. The warrantless entry into Simons' office was reasonable under the
Fourth Amendment standard announced in O'Connor because at the inception of
the search, the employer had "reasonable grounds for suspecting" that the hard
drive would yield evidence of misconduct, as the employer was already aware that
Simons had misused his Internet access to download over a thousand pornographic
images. The retrieval of the hard drive was reasonably related to the objective of
the search, and the search was not excessively intrusive. Thus, while Simons had a
reasonable expectation of privacy in his office, he did not have such legitimate
expectation of privacy with regard to the files in his computer.

x x x To establish a violation of his rights under the Fourth Amendment, Simons

must first prove that he had a legitimate expectation of privacy in the place
searched or the item seized. x x x And, in order to prove a legitimate expectation of
privacy, Simons must show that his subjective expectation of privacy is one that
society is prepared to accept as objectively reasonable. x x x

xxxx

x x x We conclude that the remote searches of Simons' computer did not violate his
Fourth Amendment rights because, in light of the Internet policy, Simons lacked a
legitimate expectation of privacy in the files downloaded from the Internet.
Additionally, we conclude that Simons' Fourth Amendment rights were not violated
by FBIS' retrieval of Simons' hard drive from his office.

Simons did not have a legitimate expectation of privacy with regard to the
record or fruits of his Internet use in light of the FBIS Internet policy. The
policy clearly stated that FBIS would "audit, inspect, and/or monitor"
employees' use of the Internet, including all file transfers, all websites
visited, and all e-mail messages, "as deemed appropriate." x x x This policy
placed employees on notice that they could not reasonably expect that their
Internet activity would be private. Therefore, regardless of whether Simons
subjectively believed that the files he transferred from the Internet were private,
such a belief was not objectively reasonable after FBIS notified him that it would be
overseeing his Internet use. x x x Accordingly, FBIS' actions in remotely searching
and seizing the computer files Simons downloaded from the Internet did not violate
the Fourth Amendment.

xxxx

The burden is on Simons to prove that he had a legitimate expectation of

privacy in his office. x x x Here, Simons has shown that he had an office that he
did not share. As noted above, the operational realities of Simons' workplace may
have diminished his legitimate privacy expectations. However, there is no evidence
in the record of any workplace practices, procedures, or regulations that had such
an effect. We therefore conclude that, on this record, Simons possessed a
legitimate expectation of privacy in his office.

xxxx

In the final analysis, this case involves an employee's supervisor entering the
employee's government office and retrieving a piece of government equipment in
which the employee had absolutely no expectation of privacy - equipment that the
employer knew contained evidence of crimes committed by the employee in the
employee's office. This situation may be contrasted with one in which the criminal
acts of a government employee were unrelated to his employment. Here, there was
a conjunction of the conduct that violated the employer's policy and the conduct
that violated the criminal law. We consider that FBIS' intrusion into Simons' office
to retrieve the hard drive is one in which a reasonable employer might engage. x x
x[42] (Citations omitted; emphasis supplied.)

This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board[43] which
involved the constitutionality of a provision in R.A. No. 9165 requiring mandatory
drug testing of candidates for public office, students of secondary and tertiary
schools, officers and employees of public and private offices, and persons charged
before the prosecutor's office with certain offenses, have also recognized the fact
that there may be such legitimate intrusion of privacy in the workplace.

The first factor to consider in the matter of reasonableness is the nature of the
privacy interest upon which the drug testing, which effects a search within the
meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or
workplace serves as the backdrop for the analysis of the privacy expectation of the
employees and the reasonableness of drug testing requirement. The employees'
privacy interest in an office is to a large extent circumscribed by the
company's work policies, the collective bargaining agreement, if any,
entered into by management and the bargaining unit, and the inherent
right of the employer to maintain discipline and efficiency in the
workplace. Their privacy expectation in a regulated office environment is, in fine,
reduced; and a degree of impingement upon such privacy has been upheld.
(Emphasis supplied.)

Applying the analysis and principles announced in O'Connor and Simons to the case
at bar, we now address the following questions: (1) Did petitioner have a
reasonable expectation of privacy in his office and computer files?; and (2) Was the
search authorized by the CSC Chair, the copying of the contents of the hard drive
on petitioner's computer reasonable in its inception and scope?

In this inquiry, the relevant surrounding circumstances to consider include "(1) the
employee's relationship to the item seized; (2) whether the item was in the
immediate control of the employee when it was seized; and (3) whether the
employee took actions to maintain his privacy in the item." These factors are
relevant to both the subjective and objective prongs of the reasonableness inquiry,
and we consider the two questions together.[44] Thus, where the employee used a
password on his computer, did not share his office with co-workers and kept the
same locked, he had a legitimate expectation of privacy and any search of that
space and items located therein must comply with the Fourth Amendment.[45]

We answer the first in the negative. Petitioner failed to prove that he had an actual
(subjective) expectation of privacy either in his office or government-issued
computer which contained his personal files. Petitioner did not allege that he had a
separate enclosed office which he did not share with anyone, or that his office was
always locked and not open to other employees or visitors. Neither did he allege
that he used passwords or adopted any means to prevent other employees from
accessing his computer files. On the contrary, he submits that being in the public
assistance office of the CSC-ROIV, he normally would have visitors in his office like
friends, associates and even unknown people, whom he even allowed to use his
computer which to him seemed a trivial request. He described his office as "full of
people, his friends, unknown people" and that in the past 22 years he had been
discharging his functions at the PALD, he is "personally assisting incoming clients,
receiving documents, drafting cases on appeals, in charge of accomplishment
report, Mamamayan Muna Program, Public Sector Unionism, Correction of name,
accreditation of service, and hardly had anytime for himself alone, that in fact he
stays in the office as a paying customer."[46] Under this scenario, it can hardly be
deduced that petitioner had such expectation of privacy that society would
recognize as reasonable.

Moreover, even assuming arguendo, in the absence of allegation or proof of the

aforementioned factual circumstances, that petitioner had at least a subjective
expectation of privacy in his computer as he claims, such is negated by the
presence of policy regulating the use of office computers, as in Simons.

Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly
provides:

POLICY

1. The Computer Resources are the property of the Civil Service Commission
and may be used only for legitimate business purposes.

2. Users shall be permitted access to Computer Resources to assist them in the

performance of their respective jobs.

3. Use of the Computer Resources is a privilege that may be revoked at any

given time.

xxxx

No Expectation of Privacy

4. No expectation of privacy. Users except the Members of the Commission

shall not have an expectation of privacy in anything they create, store, send,
or receive on the computer system.

The Head of the Office for Recruitment, Examination and Placement shall
select and assign Users to handle the confidential examination data and
processes.
 5. Waiver of privacy rights. Users expressly waive any right to privacy in
anything they create, store, send, or receive on the computer through the
Internet or any other computer network. Users understand that the CSC
may use human or automated means to monitor the use of
its Computer Resources.

6. Non-exclusivity of Computer Resources. A computer resource is not a

personal property or for the exclusive use of a User to whom a memorandum
of receipt (MR) has been issued. It can be shared or operated by other users.
However, he is accountable therefor and must insure its care and
maintenance.

xxxx

Passwords

12.Responsibility for passwords. Users shall be responsible for safeguarding

their passwords for access to the computer system. Individual passwords
shall not be printed, stored online, or given to others. Users shall be
responsible for all transactions made using their passwords. No User may
access the computer system with another User's password or account.

13.Passwords do not imply privacy. Use of passwords to gain access to the

computer system or to encode particular files or messages does not imply
that Users have an expectation of privacy in the material they create or
receive on the computer system. The Civil Service Commission has global
passwords that permit access to all materials stored on its networked
computer system regardless of whether those materials have been encoded
with a particular User's password. Only members of the Commission shall
authorize the application of the said global passwords.

x x x x[47] (Emphasis supplied.)

The CSC in this case had implemented a policy that put its employees on notice
that they have no expectation of privacy in anything they create, store, send or
receive on the office computers, and that the CSC may monitor the use of the
computer resources using both automated or human means. This implies that on-
the-spot inspections may be done to ensure that the computer resources were used
only for such legitimate business purposes.

One of the factors stated in O'Connor which are relevant in determining whether an
employee's expectation of privacy in the workplace is reasonable is the existence of
a workplace privacy policy.[48] In one case, the US Court of Appeals Eighth Circuit
held that a state university employee has not shown that he had a reasonable
expectation of privacy in his computer files where the university's computer policy,
the computer user is informed not to expect privacy if the university has a
legitimate reason to conduct a search. The user is specifically told that computer
files, including e-mail, can be searched when the university is responding to a
discovery request in the course of litigation. Petitioner employee thus cannot claim
a violation of Fourth Amendment rights when university officials conducted a
warrantless search of his computer for work-related materials.[49]

As to the second point of inquiry on the reasonableness of the search conducted on

petitioner's computer, we answer in the affirmative.

The search of petitioner's computer files was conducted in connection with

investigation of work-related misconduct prompted by an anonymous letter-
complaint addressed to Chairperson David regarding anomalies in the CSC-ROIV
where the head of the Mamamayan Muna Hindi Mamaya Na division is supposedly
"lawyering" for individuals with pending cases in the CSC. Chairperson David stated
in her sworn affidavit:

8. That prior to this, as early as 2006, the undersigned has received several
text messages from unknown sources adverting to certain anomalies in Civil
Service Commission Regional Office IV (CSCRO IV) such as, staff working in
another government agency, "selling" cases and aiding parties with pending
cases, all done during office hours and involved the use of government
properties;

9. That said text messages were not investigated for lack of any verifiable leads
and details sufficient to warrant an investigation;

10.That the anonymous letter provided the lead and details as it pinpointed the
persons and divisions involved in the alleged irregularities happening in
CSCRO IV;

11.That in view of the seriousness of the allegations of irregularities happening

in CSCRO IV and its effect on the integrity of the Commission, I decided to
form a team of Central Office staff to back up the files in the computers of
the Public Assistance and Liaison Division (PALD) and Legal Division;

x x x x[50]

A search by a government employer of an employee's office is justified at inception

when there are reasonable grounds for suspecting that it will turn up evidence that
the employee is guilty of work-related misconduct.[51] Thus, in the 2004 case
decided by the US Court of Appeals Eighth Circuit, it was held that where a
government agency's computer use policy prohibited electronic messages with
pornographic content and in addition expressly provided that employees do not
have any personal privacy rights regarding their use of the agency information
systems and technology, the government employee had no legitimate expectation
of privacy as to the use and contents of his office computer, and therefore evidence
found during warrantless search of the computer was admissible in prosecution for
child pornography. In that case, the defendant employee's computer hard drive was
first remotely examined by a computer information technician after his supervisor
received complaints that he was inaccessible and had copied and distributed non-
work-related e-mail messages throughout the office. When the supervisor
confirmed that defendant had used his computer to access the prohibited websites,
in contravention of the express policy of the agency, his computer tower and floppy
disks were taken and examined. A formal administrative investigation ensued and
later search warrants were secured by the police department. The initial remote
search of the hard drive of petitioner's computer, as well as the subsequent
warrantless searches was held as valid under the O'Connor ruling that a public
employer can investigate work-related misconduct so long as any search is justified
at inception and is reasonably related in scope to the circumstances that justified it
in the first place.[52]

Under the facts obtaining, the search conducted on petitioner's computer was
justified at its inception and scope. We quote with approval the CSC's discussion on
the reasonableness of its actions, consistent as it were with the guidelines
established by O'Connor:

Even conceding for a moment that there is no such administrative policy, there is
no doubt in the mind of the Commission that the search of Pollo's computer has
successfully passed the test of reasonableness for warrantless searches in the
workplace as enunciated in the above-discussed American authorities. It bears
emphasis that the Commission pursued the search in its capacity as a
government employer and that it was undertaken in connection with an
investigation involving a work-related misconduct, one of the circumstances
exempted from the warrant requirement. At the inception of the search, a
complaint was received recounting that a certain division chief in the CSCRO No. IV
was "lawyering" for parties having pending cases with the said regional office or in
the Commission. The nature of the imputation was serious, as it was
grievously disturbing. If, indeed, a CSC employee was found to be furtively
engaged in the practice of "lawyering" for parties with pending cases before the
Commission would be a highly repugnant scenario, then such a case would have
shattering repercussions. It would undeniably cast clouds of doubt upon the
institutional integrity of the Commission as a quasi-judicial agency, and in the
process, render it less effective in fulfilling its mandate as an impartial and
objective dispenser of administrative justice. It is settled that a court or an
administrative tribunal must not only be actually impartial but must be seen to be
so, otherwise the general public would not have any trust and confidence in it.

Considering the damaging nature of the accusation, the Commission had to

act fast, if only to arrest or limit any possible adverse consequence or fall-out.
Thus, on the same date that the complaint was received, a search was forthwith
conducted involving the computer resources in the concerned regional office. That
it was the computers that were subjected to the search was justified since
these furnished the easiest means for an employee to encode and store
documents. Indeed, the computers would be a likely starting point in
ferreting out incriminating evidence. Concomitantly, the ephemeral nature
of computer files, that is, they could easily be destroyed at a click of a
button, necessitated drastic and immediate action. Pointedly, to impose the
need to comply with the probable cause requirement would invariably defeat the
purpose of the wok-related investigation.

Worthy to mention, too, is the fact that the Commission effected the warrantless
search in an open and transparent manner. Officials and some employees of the
regional office, who happened to be in the vicinity, were on hand to observe the
process until its completion. In addition, the respondent himself was duly notified,
through text messaging, of the search and the concomitant retrieval of files from
his computer.

All in all, the Commission is convinced that the warrantless search done on
computer assigned to Pollo was not, in any way, vitiated with unconstitutionality. It
was a reasonable exercise of the managerial prerogative of the Commission as an
employer aimed at ensuring its operational effectiveness and efficiency by going
after the work-related misfeasance of its employees. Consequently, the evidence
derived from the questioned search are deemed admissible.[53]

Petitioner's claim of violation of his constitutional right to privacy must necessarily

fail. His other argument invoking the privacy of communication and correspondence
under Section 3(1), Article III of the 1987 Constitution is also untenable considering
the recognition accorded to certain legitimate intrusions into the privacy of
employees in the government workplace under the aforecited authorities. We
likewise find no merit in his contention that O'Connor and Simons are not relevant
because the present case does not involve a criminal offense like child
pornography. As already mentioned, the search of petitioner's computer was
justified there being reasonable ground for suspecting that the files stored therein
would yield incriminating evidence relevant to the investigation being conducted by
CSC as government employer of such misconduct subject of the anonymous
complaint. This situation clearly falls under the exception to the warrantless
requirement in administrative searches defined in O'Connor.

The Court is not unaware of our decision in Anonymous Letter-Complaint against

Atty. Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila[54] involving
a branch clerk (Atty. Morales) who was investigated on the basis of an anonymous
letter alleging that he was consuming his working hours filing and attending to
personal cases, using office supplies, equipment and utilities. The OCA conducted a
spot investigation aided by NBI agents. The team was able to access Atty. Morales'
personal computer and print two documents stored in its hard drive, which turned
out to be two pleadings, one filed in the CA and another in the RTC of Manila, both
in the name of another lawyer. Atty. Morales' computer was seized and taken in
custody of the OCA but was later ordered released on his motion, but with order to
the MISO to first retrieve the files stored therein. The OCA disagreed with the
report of the Investigating Judge that there was no evidence to support the charge
against Atty. Morales as no one from the OCC personnel who were interviewed
would give a categorical and positive statement affirming the charges against Atty.
Morales, along with other court personnel also charged in the same case. The OCA
recommended that Atty. Morales should be found guilty of gross misconduct. The
Court En Banc held that while Atty. Morales may have fallen short of the exacting
standards required of every court employee, the Court cannot use the evidence
obtained from his personal computer against him for it violated his constitutional
right against unreasonable searches and seizures. The Court found no evidence to
support the claim of OCA that they were able to obtain the subject pleadings with
the consent of Atty. Morales, as in fact the latter immediately filed an
administrative case against the persons who conducted the spot investigation,
questioning the validity of the investigation and specifically invoking his
constitutional right against unreasonable search and seizure. And as there is no
other evidence, apart from the pleadings, retrieved from the unduly confiscated
personal computer of Atty. Morales, to hold him administratively liable, the Court
had no choice but to dismiss the charges against him for insufficiency of evidence.

The above case is to be distinguished from the case at bar because, unlike the
former which involved a personal computer of a court employee, the computer from
which the personal files of herein petitioner were retrieved is a government-issued
computer, hence government property the use of which the CSC has absolute right
to regulate and monitor. Such relationship of the petitioner with the item seized
(office computer) and other relevant factors and circumstances under American
Fourth Amendment jurisprudence, notably the existence of CSC MO 10, S. 2007 on
Computer Use Policy, failed to establish that petitioner had a reasonable
expectation of privacy in the office computer assigned to him.

Having determined that the personal files copied from the office computer of
petitioner are admissible in the administrative case against him, we now proceed to
the issue of whether the CSC was correct in finding the petitioner guilty of the
charges and dismissing him from the service.

Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the
CSC, are accorded not only respect but even finality if such findings are supported
by substantial evidence. Substantial evidence is such amount of relevant evidence
which a reasonable mind might accept as adequate to support a conclusion, even if
other equally reasonable minds might conceivably opine otherwise.[55]

The CSC based its findings on evidence consisting of a substantial number of drafts
of legal pleadings and documents stored in his office computer, as well as the
sworn affidavits and testimonies of the witnesses it presented during the formal
investigation. According to the CSC, these documents were confirmed to be similar
or exactly the same content-wise with those on the case records of some cases
pending either with CSCRO No. IV, CSC-NCR or the Commission Proper. There were
also substantially similar copies of those pleadings filed with the CA and duly
furnished the Commission. Further, the CSC found the explanation given by
petitioner, to the effect that those files retrieved from his computer hard drive
actually belonged to his lawyer friends Estrellado and Solosa whom he allowed the
use of his computer for drafting their pleadings in the cases they handle, as
implausible and doubtful under the circumstances. We hold that the CSC's factual
finding regarding the authorship of the subject pleadings and misuse of the office
computer is well-supported by the evidence on record, thus:

It is also striking to note that some of these documents were in the nature of
pleadings responding to the orders, decisions or resolutions of these offices or
directly in opposition to them such as a petition for certiorari or a motion for
reconsideration of CSC Resolution. This indicates that the author thereof knowingly
and willingly participated in the promotion or advancement of the interests of
parties contrary or antagonistic to the Commission. Worse, the appearance in one
of the retrieved documents the phrase, "Eric N. Estr[e]llado, Epal kulang ang bayad
mo," lends plausibility to an inference that the preparation or drafting of the legal
pleadings was pursued with less than a laudable motivation. Whoever was
responsible for these documents was simply doing the same for the money - a
"legal mercenary" selling or purveying his expertise to the highest bidder, so to
speak.

Inevitably, the fact that these documents were retrieved from the computer
of Pollo raises the presumption that he was the author thereof. This is
because he had a control of the said computer. More significantly, one of the
witnesses, Margarita Reyes, categorically testified seeing a written copy of one of
the pleadings found in the case records lying on the table of the respondent. This
was the Petition for Review in the case of Estrellado addressed to the Court of
Appeals. The said circumstances indubitably demonstrate that Pollo was secretly
undermining the interest of the Commission, his very own employer.

To deflect any culpability, Pollo would, however, want the Commission to believe
that the documents were the personal files of some of his friends, including one
Attorney Ponciano Solosa, who incidentally served as his counsel of record during
the formal investigation of this case. In fact, Atty. Solosa himself executed a sworn
affidavit to this effect. Unfortunately, this contention of the respondent was directly
rebutted by the prosecution witness, Reyes, who testified that during her entire
stay in the PALD, she never saw Atty. Solosa using the computer assigned to the
respondent. Reyes more particularly stated that she worked in close proximity with
Pollo and would have known if Atty. Solosa, whom she personally knows, was using
the computer in question. Further, Atty. Solosa himself was never presented during
the formal investigation to confirm his sworn statement such that the same
constitutes self-serving evidence unworthy of weight and credence. The same is
true with the other supporting affidavits, which Pollo submitted.

At any rate, even admitting for a moment the said contention of the respondent, it
evinces the fact that he was unlawfully authorizing private persons to use the
computer assigned to him for official purpose, not only once but several times
gauging by the number of pleadings, for ends not in conformity with the interests of
the Commission. He was, in effect, acting as a principal by indispensable
cooperation...Or at the very least, he should be responsible for serious misconduct
for repeatedly allowing CSC resources, that is, the computer and the electricity, to
be utilized for purposes other than what they were officially intended.
Further, the Commission cannot lend credence to the posturing of the appellant
that the line appearing in one of the documents, "Eric N. Estrellado, Epal kulang
ang bayad mo," was a private joke between the person alluded to therein, Eric N.
Estrellado, and his counsel, Atty. Solosa, and not indicative of anything more
sinister. The same is too preposterous to be believed. Why would such a statement
appear in a legal pleading stored in the computer assigned to the respondent,
unless he had something to do with it?[56]

Petitioner assails the CA in not ruling that the CSC should not have entertained an
anonymous complaint since Section 8 of CSC Resolution No. 99-1936 (URACC)
requires a verified complaint:

Rule II - Disciplinary Cases

SEC. 8. Complaint. - A complaint against a civil service official or employee shall

not be given due course unless it is in writing and subscribed and sworn to by the
complainant. However, in cases initiated by the proper disciplining authority,
the complaint need not be under oath.

No anonymous complaint shall be entertained unless there is obvious truth or

merit to the allegation therein or supported by documentary or direct evidence,
in which case the person complained of may be required to comment.

xxxx

We need not belabor this point raised by petitioner. The administrative complaint is
deemed to have been initiated by the CSC itself when Chairperson David, after a
spot inspection and search of the files stored in the hard drive of computers in the
two divisions adverted to in the anonymous letter -- as part of the disciplining
authority's own fact-finding investigation and information-gathering -- found
a prima facie case against the petitioner who was then directed to file his
comment. As this Court held in Civil Service Commission v. Court of Appeals[57] --

Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and
Section 8, Rule II of Uniform Rules on Administrative Cases in the Civil Service, a
complaint may be initiated against a civil service officer or employee by
the appropriate disciplining authority, even without being subscribed and
sworn to. Considering that the CSC, as the disciplining authority for Dumlao, filed
the complaint, jurisdiction over Dumlao was validly acquired. (Emphasis supplied.)

As to petitioner's challenge on the validity of CSC OM 10, S. 2002 (CUP), the same
deserves scant consideration. The alleged infirmity due to the said memorandum
order having been issued solely by the CSC Chair and not the Commission as a
collegial body, upon which the dissent of Commissioner Buenaflor is partly
anchored, was already explained by Chairperson David in her Reply to the
Addendum to Commissioner Buenaflor's previous memo expressing his dissent to
the actions and disposition of the Commission in this case. According to
Chairperson David, said memorandum order was in fact exhaustively discussed,
provision by provision in the January 23, 2002 Commission Meeting, attended by
her and former Commissioners Erestain, Jr. and Valmores. Hence, the
Commission En Banc at the time saw no need to issue a Resolution for the purpose
and further because the CUP being for internal use of the Commission, the practice
had been to issue a memorandum order.[58] Moreover, being an administrative rule
that is merely internal in nature, or which regulates only the personnel of the CSC
and not the public, the CUP need not be published prior to its effectivity.[59]

In fine, no error or grave abuse of discretion was committed by the CA in affirming

the CSC's ruling that petitioner is guilty of grave misconduct, dishonesty, conduct
prejudicial to the best interest of the service, and violation of R.A. No. 6713. The
gravity of these offenses justified the imposition on petitioner of the ultimate
penalty of dismissal with all its accessory penalties, pursuant to existing rules and
regulations.

WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated
October 11, 2007 and Resolution dated February 29, 2008 of the Court of Appeals
in CA-G.R. SP No. 98224 are AFFIRMED.

With costs against the petitioner.

FIRST DIVISION
[ G.R. No. 161106, January 13, 2014 ]
WORLDWIDE WEB CORPORATION AND CHERRYLL L. YU,
PETITIONERS, VS. PEOPLE OF THE PHILIPPINES AND
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY,
RESPONDENTS.

[G.R. NO. 161266]

PLANET INTERNET CORP., PETITIONER, VS. PHILIPPINE

LONG DISTANCE TELEPHONE COMPANY, RESPONDENT.

DECISION

SERENO, C.J.:

Petitioners filed the present Petitions under Rule 45 of the Rules of Court to set
aside the Decision[1] dated 20 August 2003 and the Resolution[2] dated 27
November 2003 of the Court of Appeals (CA) reversing the quashal of the search
warrants previously issued by the Regional Trial Court (RTC).

Police Chief Inspector Napoleon Villegas of the Regional Intelligence Special

Operations Office (RISOO) of the Philippine National Police filed applications for
warrants[3] before the RTC of Quezon City, Branch 78, to search the office premises
of petitioner Worldwide Web Corporation (WWC)[4] located at the 11th floor, IBM
Plaza Building, No. 188 Eastwood City, Libis, Quezon City, as well as the office
premises of petitioner Planet Internet Corporation (Planet Internet)[5] located at UN
2103, 21/F Orient Square Building, Emerald Avenue, Barangay San Antonio, Pasig
City. The applications alleged that petitioners were conducting illegal toll bypass
operations, which amounted to theft and violation of Presidential Decree No. 401
(Penalizing the Unauthorized Installation of Water, Electrical or Telephone
Connections, the Use of Tampered Water or Electrical Meters and Other Acts), to
the damage and prejudice of the Philippine Long Distance Telephone Company
(PLDT).[6]

On 25 September 2001, the trial court conducted a hearing on the applications for
search warrants. The applicant and Jose Enrico Rivera (Rivera) and Raymund Gali
(Gali) of the Alternative Calling Pattern Detection Division of PLDT testified as
witnesses.

According to Rivera, a legitimate international long distance call should pass

through the local exchange or public switch telephone network (PSTN) on to the toll
center of one of the international gateway facilities (IGFs)[7] in the
Philippines.[8] The call is then transmitted to the other country through voice
circuits, either via fiber optic submarine cable or microwave radio using satellite
facilities, and passes the toll center of one of the IGFs in the destination country.
The toll center would then meter the call, which will pass through the PSTN of the
called number to complete the circuit. In contrast, petitioners were able to provide
international long distance call services to any part of the world by using PLDT’s
telephone lines, but bypassing its IGF. This scheme constitutes toll bypass, a
“method of routing and completing international long distance calls using lines,
cables, antenna and/or wave or frequency which connects directly to the local or
domestic exchange facilities of the originating country or the country where the call
is originated.”[9]

On the other hand, Gali claimed that a phone number serviced by PLDT and
registered to WWC was used to provide a service called GlobalTalk, “an internet-
based international call service, which can be availed of via prepaid or billed/post-
paid accounts.”[10] During a test call using GlobalTalk, Gali dialed the local PLDT
telephone number 6891135, the given access line. After a voice prompt required
him to enter the user code and personal identification number (PIN) provided under
a GlobalTalk pre-paid account, he was then requested to enter the destination
number, which included the country code, phone number and a pound (#) sign.
The call was completed to a phone number in Taiwan. However, when he checked
the records, it showed that the call was only directed to the local number 6891135.
This indicated that the international test call using GlobalTalk bypassed PLDT’s IGF.
Based on the records of PLDT, telephone number 6891135 is registered to WWC
with address at UN 2103, 21/F Orient Square Building, Emerald
Avenue, Barangay San Antonio, Pasig City.[11] However, upon an ocular inspection
conducted by Rivera at this address, it was found that the occupant of the unit is
Planet Internet, which also uses the telephone lines registered to WWC.[12] These
telephone lines are interconnected to a server and used as dial-up access
lines/numbers of WWC.

Gali further alleged that because PLDT lines and equipment had been illegally
connected by petitioners to a piece of equipment that routed the international calls
and bypassed PLDT’s IGF, they violated Presidential Decree (P.D.) No. 401 as
amended,[13] on unauthorized installation of telephone connections. Petitioners also
committed theft, because through their misuse of PLDT phone lines/numbers and
equipment and with clear intent to gain, they illegally stole business and revenues
that rightly belong to PLDT. Moreover, they acted contrary to the letter and intent
of Republic Act (R.A.) No. 7925, because in bypassing the IGF of PLDT, they evaded
the payment of access and bypass charges in its favor while “piggy-backing” on its
multi-million dollar facilities and infrastructure, thus stealing its business revenues
from international long distance calls. Further, petitioners acted in gross violation of
Memorandum Circular No. 6-2-92 of the National Telecommunications Commission
(NTC) prohibiting the use of customs premises equipment (CPE) without first
securing type approval license from the latter.

Based on a five-day sampling of the phone line of petitioners, PLDT computed a

monthly revenue loss of P764,718.09. PLDT likewise alleged that petitioners
deprived it of foreign exchange revenues, and evaded the payment of taxes, license
fees, and charges, to the prejudice of the government.

During the hearing, the trial court required the identification of the office
premises/units to be searched, as well as their floor plans showing the location of
particular computers and servers that would be taken.[14]

On 26 September 2001, the RTC granted the application for search

warrants.[15] Accordingly, the following warrants were issued against the office
premises of petitioners, authorizing police officers to seize various items:

1. Search Warrant No. Q-01-3856,[16] issued for violation of paragraph one (1) of
Article 308 (theft) in relation to Article 309 of the Revised Penal Code against WWC,
Adriel S. Mirto, Kevin L. Tan, Cherryll L. Yu, Carmelo J. Canto, III, Ferdinand B.
Masi, Message One International Corporation, Adriel S. Mirto, Nova Christine L. Dela
Cruz, Robertson S. Chiang, and Nolan B. Sison with business address at 11/F IBM
Plaza Building, No. 188 Eastwood City, Cyberpark Libis, Quezon City:

a) Computers or any equipment or device capable of accepting information,

applying the process of the information and supplying the results of this process;

b) Software, Diskettes, Tapes or equipment or device used for recording or storing

information; and

c) Manuals, application forms, access codes, billing statements, receipts, contracts,

communications and documents relating to securing and using telephone lines
and/or equipment.

2. Search Warrant No. Q-01-3857,[17] issued for violation of P.D. 401 against Planet
Internet Corporation/Mercury One, Robertson S. Chiang, Nikki S. Chiang, Maria Sy
Be Chiang, Ben C. Javellana, Carmelita Tuason with business address at UN 2103,
21/F Orient Square Building, Emerald Avenue, Barangay San Antonio, Pasig City:

a) Modems or Routers or any equipment or device that enables data terminal

equipment such as computers to communicate with other data terminal equipment
via a telephone line;

b) Computers or any equipment or device capable of accepting information applying

the prescribed process of the information and supplying the results of this process;

c) Lines, Cables and Antennas or equipment or device capable of transmitting air

waves or frequency, such as an IPL and telephone lines and equipment;

d) Multiplexers or any equipment or device that enables two or more signals from
different sources to pass through a common cable or transmission line;

e) PABX or Switching Equipment, Tapes or equipment or device capable of

connecting telephone lines;

f) Software, Diskettes, Tapes or equipment or device used for recording or storing

information; and

g) Manuals, application forms, access codes, billing statement, receipts, contracts,

checks, orders, communications and documents, lease and/or subscription
agreements or contracts, communications and documents relating to securing and
using telephone lines and/or equipment.

3. Search Warrant No. Q-01-3858,[18] issued for violation of paragraph one (1) of
Article 308 (theft) in relation to Article 309 of the Revised Penal Code against Planet
Internet Corporation/Mercury One, Robertson S. Chiang, Nikki S. Chiang, Maria Sy
Be Chiang, Ben C. Javellana, Carmelita Tuason with business address at UN 2103,
21/F Orient Square Building, Emerald Avenue, Barangay San Antonio, Pasig City:

a) Modems or Routers or any equipment or device that enables data terminal

equipment such as computers to communicate with other data terminal equipment
via a telephone line;

b) Computers or any equipment or device capable of accepting information applying

the prescribed process of the information and supplying the results of this process;
c) Lines, Cables and Antennas or equipment or device capable of transmitting air
waves or frequency, such as an IPL and telephone lines and equipment;

d) Multiplexers or any equipment or device that enables two or more signals from
different sources to pass through a common cable or transmission line;

e) PABX or Switching Equipment, Tapes or equipment or device capable of

connecting telephone lines;

f) Software, Diskettes, Tapes or equipment or device used for recording or storing

information; and

g) Manuals, application forms, access codes, billing statement, receipts, contracts,

checks, orders, communications and documents, lease and/or subscription
agreements or contracts, communications and documents relating to securing and
using telephone lines and/or equipment.

The warrants were implemented on the same day by RISOO operatives of the
National Capital Region Police Office.

Over a hundred items were seized,[19] including 15 central processing units (CPUs),
10 monitors, numerous wires, cables, diskettes and files, and a laptop
computer.[20] Planet Internet notes that even personal diskettes of its employees
were confiscated; and areas not devoted to the transmission of international calls,
such as the President’s Office and the Information Desk, were searched. Voltage
regulators, as well as reserve and broken computers, were also seized.

Petitioners WWC and Cherryll Yu,[21] and Planet Internet[22] filed their respective
motions to quash the search warrants, citing basically the same grounds: (1) the
search warrants were issued without probable cause, since the acts complained of
did not constitute theft; (2) toll bypass, the act complained of, was not a crime; (3)
the search warrants were general warrants; and (4) the objects seized pursuant
thereto were “fruits of the poisonous tree.”

PLDT filed a Consolidated Opposition[23] to the motions to quash.

In the hearing of the motions to quash on 19 October 2001, the test calls alluded to
by Gali in his Affidavit were shown to have passed the IGF of Eastern
Telecommunications (Philippines) Inc. (Eastern) and of Capital Wireless
(Capwire).[24] Planet Internet explained that Eastern and Capwire both provided
international direct dialing services, which Planet Internet marketed by virtue of a
“Reseller Agreement.” Planet Internet used PLDT lines for the first phase of the call;
but for the second phase, it used the IGF of either Eastern or Capwire. Planet
Internet religiously paid PLDT for its domestic phone bills and Eastern and Capwire
for its IGF usage. None of these contentions were refuted by PLDT.

The RTC granted the motions to quash on the ground that the warrants issued were
in the nature of general warrants.[25] Thus, the properties seized under the said
warrants were ordered released to petitioners.

PLDT moved for reconsideration,[26] but its motion was denied[27] on the ground that
it had failed to get the conformity of the City Prosecutor prior to filing the motion,
as required under Section 5, Rule 110 of the Rules on Criminal Procedure.

THE CA RULING

PLDT appealed to the CA, where the case was docketed as CA-G.R. No. 26190. The
CA reversed and set aside the assailed RTC Resolutions and declared the search
warrants valid and effective.[28]

Petitioners separately moved for reconsideration of the CA ruling.[29] Among the

points raised was that PLDT should have filed a petition for certiorari rather than an
appeal when it questioned the RTC Resolution before the CA. The appellate court
denied the Motions for Reconsideration.[30]

Rule 45 Petitions were separately filed by petitioners WWC and Cherryll Yu,[31] and
Planet Internet[32] to assail the CA Decision and Resolution. The Court consolidated
the two Petitions.[33]

ISSUES

I. Whether the CA erred in giving due course to PLDT’s appeal despite the
following procedural infirmities:

1. PLDT, without the conformity of the public prosecutor, had no

personality to question the quashal of the search warrants;
2. PLDT assailed the quashal orders via an appeal rather than a petition
for certiorari under Rule 65 of the Rules of Court.

II. Whether the assailed search warrants were issued upon probable cause,
considering that the acts complained of allegedly do not constitute theft.

III. Whether the CA seriously erred in holding that the assailed search warrants
were not general warrants.

OUR RULING

I.

1. An application for a search warrant is not a criminal

action; conformity of the public prosecutor is not necessary to
 give the aggrieved party personality to question an order
quashing search warrants.

Petitioners contend that PLDT had no personality to question the quashal of the
search warrants without the conformity of the public prosecutor. They argue that it
violated Section 5, Rule 110 of the Rules of Criminal Procedure, to wit:

SEC. 5. Who must prosecute criminal actions.—All criminal actions commenced by a

complaint or information shall be prosecuted under the direction and control of the
prosecutor.

The above provision states the general rule that the public prosecutor has direction
and control of the prosecution of “(a)ll criminal actions commenced by a complaint
or information.” However, a search warrant is obtained, not by the filing of a
complaint or an information, but by the filing of an application therefor.[34]

Furthermore, as we held in Malaloan v. Court of Appeals,[35] an application for a

search warrant is a “special criminal process,” rather than a criminal action:

The basic flaw in this reasoning is in erroneously equating the application for and
the obtention of a search warrant with the institution and prosecution of a criminal
action in a trial court. It would thus categorize what is only a special criminal
process, the power to issue which is inherent in all courts, as equivalent to a
criminal action, jurisdiction over which is reposed in specific courts of indicated
competence. It ignores the fact that the requisites, procedure and purpose for the
issuance of a search warrant are completely different from those for the institution
of a criminal action.

For, indeed, a warrant, such as a warrant of arrest or a search warrant, merely

constitutes process. A search warrant is defined in our jurisdiction as an order in
writing issued in the name of the People of the Philippines signed by a judge and
directed to a peace officer, commanding him to search for personal property and
bring it before the court. A search warrant is in the nature of a criminal process
akin to a writ of discovery. It is a special and peculiar remedy, drastic in its nature,
and made necessary because of a public necessity.

In American jurisdictions, from which we have taken our jural concept and
provisions on search warrants, such warrant is definitively considered
merely as a process, generally issued by a court in the exercise of its
ancillary jurisdiction, and not a criminal action to be entertained by a court
pursuant to its original jurisdiction. We emphasize this fact for purposes of
both issues as formulated in this opinion, with the catalogue of authorities
herein.[36] (Emphasis supplied)

Clearly then, an application for a search warrant is not a criminal action. Meanwhile,
we have consistently recognized the right of parties to question orders quashing
those warrants.[37] Accordingly, we sustain the CA’s ruling that the conformity of the
public prosecutor is not necessary before an aggrieved party moves for
reconsideration of an order granting a motion to quash search warrants.

2. An order quashing a search warrant, which was issued

independently prior to the filing of a criminal action, partakes
of a final order that can be the proper subject of an appeal.

Petitioners also claim that since the RTC ruling on the motions to quash was
interlocutory, it cannot be appealed under Rule 41 of the Rules of Court. PLDT
should have filed a Rule 65 petition instead. Petitioners cite, as authority for their
position, Marcelo v. de Guzman.[38] The Court held therein as follows:

But is the order of Judge de Guzman denying the motion to quash the search
warrant and to return the properties seized thereunder final in character, or is it
merely interlocutory? In Cruz vs. Dinglasan, this Court, citing American
jurisprudence, resolved this issue thus:
Where accused in criminal proceeding has petitioned for the return of goods seized,
the order of restoration by an inferior court is interlocutory and hence, not
appealable; likewise, a denial, by the US District Court, of defendant's petition for
the return of the articles seized under a warrant is such an interlocutory order. (56
C.J. 1253).
A final order is defined as one which disposes of the whole subject matter or
terminates a particular proceeding or action, leaving nothing to be done but to
enforce by execution what has been determined; on the other hand an order is
interlocutory if it does not dispose of a case completely, but leaves something more
to be done upon its merits. Tested against this criterion, the search warrant issued
in Criminal Case No. 558 is indisputably of interlocutory character because it leaves
something more to be done in the said criminal case, i.e., the determination of the
guilt of the accused therein.[39]

Petitioners’ reliance upon Marcelo is misplaced.

An application for a search warrant is a judicial process conducted either as an

incident in a main criminal case already filed in court or in anticipation of one yet to
be filed.[40] Whether the criminal case (of which the search warrant is an incident)
has already been filed before the trial court is significant for the purpose of
determining the proper remedy from a grant or denial of a motion to quash a
search warrant.

Where the search warrant is issued as an incident in a pending criminal case, as it

was in Marcelo, the quashal of a search warrant is merely interlocutory. There is
still “something more to be done in the said criminal case, i.e., the determination of
the guilt of the accused therein.”[41]

In contrast, where a search warrant is applied for and issued in anticipation of a

criminal case yet to be filed, the order quashing the warrant (and denial of a motion
for reconsideration of the grant) ends the judicial process. There is nothing more to
be done thereafter.

Thus, the CA correctly ruled that Marcelo does not apply to this case. Here, the
applications for search warrants were instituted as principal proceedings and not as
incidents to pending criminal actions. When the search warrants issued were
subsequently quashed by the RTC, there was nothing left to be done by the trial
court. Thus, the quashal of the search warrants were final orders, not interlocutory,
and an appeal may be properly taken therefrom.

II.

Trial judges determine probable cause in the exercise of their

judicial functions. A trial judge’s finding of probable cause
for the issuance of a search warrant is accorded respect by
reviewing courts when the finding has substantial basis.

Petitioners claim that no probable cause existed to justify the issuance of the search
warrants.

The rules pertaining to the issuance of search warrants are enshrined in Section 2,
Article III of the 1987 Constitution:

Section 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. (Emphasis supplied)

In the issuance of a search warrant, probable cause 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.”[42]

There is no exact test for the determination of probable cause[43] in the issuance of
search warrants. It is a matter wholly dependent on the finding of trial judges in the
process of exercising their judicial function.[44] They determine probable cause
based on “evidence showing that, more likely than not, a crime has been
committed and that it was committed” by the offender.[45]

When a finding of probable cause for the issuance of a search warrant is made by a
trial judge, the finding is accorded respect by reviewing courts:

x x x. It is presumed that a judicial function has been regularly performed, absent a

showing to the contrary. A magistrate’s determination of probable cause for the
issuance of a search warrant is paid great deference by a reviewing court, as long
as there was substantial basis for that determination. Substantial basis means that
the questions of the examining judge brought out such facts and circumstances as
would lead a reasonably discreet and prudent man to believe that an offense has
been committed, and the objects in connection with the offense sought to be seized
are in the place sought to be searched.[46]

The transcript of stenographic notes during the hearing for the application for
search warrants on 25 September 2001 shows that Judge Percival Mandap Lopez
asked searching questions to the witnesses and particularly sought clarification on
the alleged illegal toll bypass operations of petitioners, as well as the pieces of
evidence presented. Thus, the Court will no longer disturb the finding of probable
cause by the trial judge during the hearing for the application for the search
warrants.

However, petitioners insist that the determination of the existence of probable

cause necessitates the prior determination of whether a crime or an offense was
committed in the first place. In support of their contention that there was no
probable cause for the issuance of the search warrants, petitioners put forward the
adage nullum crimen, nulla poena sine lege – there is no crime when there is no
law punishing it. Petitioners argue that there is no law punishing toll bypass, the act
complained of by PLDT. Thus, no offense was committed that would justify the
issuance of the search warrants.

According to PLDT, toll bypass enables international calls to appear as local calls
and not overseas calls, thus effectively evading payment to the PLDT of access,
termination or bypass charges, and accounting rates; payment to the government
of taxes; and compliance with NTC regulatory requirements. PLDT concludes that
toll bypass is prohibited, because it deprives “legitimate telephone operators, like
PLDT… of the compensation which it is entitled to had the call been properly routed
through its network.”[47] As such, toll bypass operations constitute theft, because all
of the elements of the crime are present therein.

On the other hand, petitioners WWC and Cherryll Yu argue that there is no theft to
speak of, because the properties allegedly taken from PLDT partake of the nature of
“future earnings and lost business opportunities” and, as such, are uncertain,
anticipative, speculative, contingent, and conditional. PLDT cannot be deprived of
such unrealized earnings and opportunities because these do not belong to it in the
first place.

Upon a review of the records of the case, we understand that the Affidavits of
Rivera and Gali that accompanied the applications for the search warrants charge
petitioners with the crime, not of toll bypass per se, but of theft of PLDT’s
international long distance call business committed by means of the alleged toll
bypass operations.

For theft to be committed in this case, the following elements must be shown to
exist: (1) the taking by petitioners (2) of PLDT’s personal property (3) with intent
to gain (4) without the consent of PLDT (5) accomplished without the use of
violence against or intimidation of persons or the use of force upon things.[48]

Petitioners WWC and Cherryll Yu only take issue with categorizing the earnings and
business as personal properties of PLDT. However, in Laurel v. Abrogar,[49] we have
already held that the use of PLDT’s communications facilities without its consent
constitutes theft of its telephone services and business:

x x x “[I]nternational long distance calls,” the matter alleged to be stolen in the

instant case, take the form of electrical energy, it cannot be said that such
international long distance calls were personal properties belonging to PLDT since
the latter could not have acquired ownership over such calls. PLDT merely encodes,
augments, enhances, decodes and transmits said calls using its complex
communications infrastructure and facilities. PLDT not being the owner of said
telephone calls, then it could not validly claim that such telephone calls were taken
without its consent. It is the use of these communications facilities without
the consent of PLDT that constitutes the crime of theft, which is the
unlawful taking of the telephone services and business.

Therefore, the business of providing telecommunication and the telephone

service are personal property under Article 308 of the Revised Penal Code,
and the act of engaging in ISR is an act of “subtraction” penalized under
said article. However, the Amended Information describes the thing taken as,
“international long distance calls,” and only later mentions “stealing the business
from PLDT” as the manner by which the gain was derived by the accused. In order
to correct this inaccuracy of description, this case must be remanded to the trial
court and the prosecution directed to amend the Amended Information, to clearly
state that the property subject of the theft are the services and business of
respondent PLDT. Parenthetically, this amendment is not necessitated by a
mistake in charging the proper offense, which would have called for the dismissal of
the information under Rule 110, Section 14 and Rule 119, Section 19 of the Revised
Rules on Criminal Procedure. To be sure, the crime is properly designated as
one of theft. The purpose of the amendment is simply to ensure that the accused
is fully and sufficiently apprised of the nature and cause of the charge against him,
and thus guaranteed of his rights under the Constitution. (Emphasis supplied)

In Laurel, we reviewed the existing laws and jurisprudence on the generally

accepted concept of personal property in civil law as “anything susceptible of
appropriation.”[50] It includes ownership of telephone services, which are protected
by the penal provisions on theft. We therein upheld the Amended Information
charging the petitioner with the crime of theft against PLDT inasmuch as the
allegation was that the former was engaged in international simple resale (ISR) or
“the unauthorized routing and completing of international long distance calls using
lines, cables, antennae, and/or air wave frequency and connecting these calls
directly to the local or domestic exchange facilities of the country where
destined.”[51] We reasoned that since PLDT encodes, augments, enhances, decodes
and transmits telephone calls using its complex communications infrastructure and
facilities, the use of these communications facilities without its consent constitutes
theft, which is the unlawful taking of telephone services and business. We then
concluded that the business of providing telecommunications and telephone
services is personal property under Article 308 of the Revised Penal Code, and that
the act of engaging in ISR is an act of “subtraction” penalized under said article.

Furthermore, toll bypass operations could not have been accomplished without the
installation of telecommunications equipment to the PLDT telephone lines. Thus,
petitioners may also be held liable for violation of P.D. 401, to wit:

Section 1. Any person who installs any water, electrical, telephone or piped
gas connection without previous authority from the Metropolitan Waterworks
and Sewerage System, the Manila Electric Company, the Philippine Long
Distance Telephone Company, or the Manila Gas Corporation, as the case may
be, tampers and/or uses tampered water, electrical or gas meters, jumpers or other
devices whereby water, electricity or piped gas is stolen; steals or pilfers water,
electric or piped gas meters, or water, electric and/or telephone wires, or piped gas
pipes or conduits; knowingly possesses stolen or pilfered water, electrical or gas
meters as well as stolen or pilfered water, electrical and/or telephone wires, or
piped gas pipes and conduits, shall, upon conviction, be punished with prision
correccional in its minimum period or a fine ranging from two thousand to
six thousand pesos, or both. (Emphasis supplied)

The peculiar circumstances attending the situation compel us to rule further on the
matter of probable cause. During the hearing of the motions to quash the search
warrants, the test calls conducted by witnesses for PLDT were shown to have
connected to the IGF of either Eastern or Capwire to complete the international
calls.

A trial judge’s finding of probable cause may be set aside and the search warrant
issued by him based on his finding may be quashed if the person against whom the
warrant is issued presents clear and convincing evidence that when the police
officers and witnesses testified, they committed a deliberate falsehood or reckless
disregard for the truth on matters that are essential or necessary to a showing of
probable cause.[52] In that case, the finding of probable cause is a nullity, because
the trial judge was intentionally misled by the witnesses.[53]

On the other hand, innocent and negligent omissions or misrepresentation of

witnesses will not cause the quashal of a search warrant.[54] In this case, the
testimonies of Rivera and Gali that the test calls they conducted did not pass
through PLDT’s IGF are true. They neglected, however, to look into the possibility
that the test calls may have passed through other IGFs in the Philippines, which
was exactly what happened. Nevertheless, the witnesses did not commit a
deliberate falsehood. Even Planet Internet stated that the conclusion that the test
calls bypassed all IGFs in the country was made “carelessly and haphazardly.”[55]

On this score, the quashal of the search warrants is not in order. It must be noted
that the trial judge did not quash the warrants in this case based on lack of
probable cause. Instead, the issue before us is whether the CA erred in reversing
the RTC, which ruled that the search warrants are general warrants.
 III.

The requirement of particularity in the description of things to be

seized is fulfilled when the items described in the search
warrant bear a direct relation to the offense for which the
warrant is sought.

Petitioners claim that the subject search warrants were in the nature of general
warrants because the descriptions therein of the objects to be seized are so broad
and all-encompassing as to give the implementing officers wide discretion over
which articles to seize. In fact, the CA observed that the targets of the search
warrants were not illegal per se, and that they were “innocuous goods.” Thus, the
police officers were given blanket authority to determine whether the objects were
legal or not, as in fact even pieces of computer equipment not involved in
telecommunications or Internet service were confiscated.

On the other hand, PLDT claims that a search warrant already fulfills the
requirement of particularity of description when it is as specific as the
circumstances will ordinarily allow.[56] Furthermore, it cites Kho v. Makalintal,[57] in
which the Court allowed leeway in the description of things to be seized, taking into
consideration the effort and the time element involved in the prosecution of
criminal cases.

The Office of the Solicitor General (OSG), in its Comment[58] filed with the CA,
likewise prayed for the reversal of the quashal of the search warrants in view of the
OSG’s position that the scheme was a case of electronic theft, and that the items
sought to be seized could not be described with calibrated precision. According to
the OSG, assuming that the seized items could also be used for other legitimate
businesses, the fact remains that the items were used in the commission of an
offense.

A general warrant is defined as “(a) search or arrest warrant that is not particular
as to the person to be arrested or the property to be seized.”[59] It is one that
allows the “seizure of one thing under a warrant describing another” and gives the
officer executing the warrant the discretion over which items to take.[60]

Such discretion is abhorrent, as it makes the person, against whom the warrant is
issued, vulnerable to abuses. Our Constitution guarantees our right against
unreasonable searches and seizures, and safeguards have been put in place to
ensure that people and their properties are searched only for the most compelling
and lawful reasons.

Section 2, Article III of the 1987 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 such 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.

In furtherance of this constitutional provision, Sections 3 and 4, Rule 126 of the

Rules of Court, amplify the rules regarding the following places and items to be
searched under a search warrant:

SEC. 3. Personal property to be seized.—A search warrant may be issued for the
search and seizure of personal property:
a) Subject of the offense;
b) Stolen or embezzled and other proceeds, or fruits of the offense; or
c) Used or intended to be used as the means of committing an offense.
SEC. 4. Requisites for issuing search warrant.—A search warrant shall not issue
except upon probable cause in connection with one specific offense to be
determined personally by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce, and particularly describing the
place to be searched and the things to be seized which may be anywhere in the
Philippines.
Within the context of the above legal requirements for valid search warrants, the
Court has been mindful of the difficulty faced by law enforcement officers in
describing the items to be searched, especially when these items are technical in
nature, and when the extent of the illegal operation is largely unknown to
them. Vallejo v. Court of Appeals[61] ruled as follows:

The things to be seized must be described with particularity. Technical precision of

description is not required. It is only necessary that there be reasonable
particularity and certainty as to the identity of the property to be searched for and
seized, so that the warrant shall not be a mere roving commission. Indeed, the law
does not require that the things to be seized must be described in precise and
minute detail as to leave no room for doubt on the part of the searching authorities.
If this were the rule, it would be virtually impossible for the applicants to obtain a
warrant as they would not know exactly what kind of things to look for. Any
description of the place or thing to be searched that will enable the officer
making the search with reasonable certainty to locate such place or thing
is sufficient. (Emphasis supplied)

Furthermore, the Court also had occasion to rule that the particularity of the
description of the place to be searched and the things to be seized is required
“wherever and whenever it is feasible.”[62] A search warrant need not describe the
items to be seized in precise and minute detail.[63] The warrant is valid when it
enables the police officers to readily identify the properties to be seized and leaves
them with no discretion regarding the articles to be seized.[64]

In this case, considering that items that looked like “innocuous goods” were being
used to pursue an illegal operation that amounts to theft, law enforcement officers
would be hard put to secure a search warrant if they were required to pinpoint
items with one hundred percent precision. In People v. Veloso, we pronounced that
“[t]he police should not be hindered in the performance of their duties, which are
difficult enough of performance under the best of conditions, by superficial
adherence to technicality or far-fetched judicial interference.” [65]

A search warrant fulfills the requirement of particularity in the description of the

things to be seized when the things described are limited to those that bear a direct
relation to the offense for which the warrant is being issued.[66]

To our mind, PLDT was able to establish the connection between the items to be
searched as identified in the warrants and the crime of theft of its telephone
services and business. Prior to the application for the search warrants, Rivera
conducted ocular inspection of the premises of petitioners and was then able to
confirm that they had “utilized various telecommunications equipment consisting of
computers, lines, cables, antennas, modems, or routers, multiplexers, PABX or
switching equipment, and support equipment such as software, diskettes, tapes,
manuals and other documentary records to support the illegal toll bypass
operations.”[67]

In HPS Software and Communication Corp. v. PLDT,[68] we upheld a similarly

worded[69] description of items to be seized by virtue of the search warrants,
because these items had been sufficiently identified physically and shown to bear a
relation to the offenses charged.

WHEREFORE, the petitions are DENIED. The Court of Appeals Decision dated 20
August 2003 and Resolution dated 27 November 2003 in CA-G.R. CR No. 26190
are AFFIRMED.

SO ORDERED.

SECOND DIVISION
[ G.R. No. 179408, March 05, 2014 ]
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY,
PETITIONER, VS. ABIGAIL R. RAZON ALVAREZ AND VERNON
R. RAZON, RESPONDENTS.

DECISION

BRION, J.:
Before the Court is a petition for review on certiorari[1] assailing the
decision[2] dated August 11, 2006 and the resolution[3] dated August 22, 2007 of
the Court of Appeals (CA) in CA-G.R. SP No. 89213 on the validity of the four
search warrants issued by the Regional Trial Court (RTC) of Pasay City, Branch 115.

The CA rulings (i) quashed the first two search warrants, similarly docketed as
Search Warrant No. 03-063, issued for violation of Article 308, in relation to Article
309, of the Revised Penal Code (RPC), and (ii) declared void paragraphs 7, 8 and 9
of the other two search warrants, also similarly docketed as Search Warrant No.
03-064, issued for violation of Presidential Decree (PD) No. 401.[4]

FACTUAL ANTECEDENTS

Philippine Long Distance Telephone Company (PLDT) is the grantee of a legislative

franchise[5] which authorizes it to carry on the business of providing basic and
enhanced telecommunications services in and between areas in the Philippines and
between the Philippines and other countries and territories,[6] and, accordingly, to
establish, operate, manage, lease, maintain and purchase telecommunications
system for both domestic and international calls.[7] Pursuant to its franchise, PLDT
offers to the public wide range of services duly authorized by the National
Telecommunications Commission (NTC).

PLDT's network is principally composed of the Public Switch Telephone Network,

telephone handsets and/or telecommunications equipment used by its subscribers,
the wires and cables linking these handsets and/or equipment, antennae,
transmission facilities, the international gateway facility (IGF) and other
telecommunications equipment providing interconnections.[8] To safeguard the
integrity of its network, PLDT regularly conducts investigations on various prepaid
cards marketed and sold abroad to determine alternative calling patterns (ACP) and
network fraud that are being perpetrated against it.

To prevent or stop network fraud, PLDT's ACP Detection Division (ACPDD) regularly
visits foreign countries to conduct market research on various prepaid phone cards
offered abroad that allow their users to make overseas calls to PLDT subscribers in
the Philippines at a cheaper rate.

The ACPDD bought The Number One prepaid card — a card principally marketed to
Filipinos residing in the United Kingdom for calls to the Philippines - to make test
calls using two telephone lines: the dialing phone - an IDD-capable[9] telephone
line which makes the call and through which the access number and the PIN
number printed at the back of the card are entered; and the receiving phone - a
caller identification (caller id) unit-equipped telephone line which would receive the
call and reflect the incoming caller's telephone number.

During a test call placed at the PLDT-ACPDD office, the receiving phone reflected a
PLDT telephone number (2-8243285) as the calling number used, as if the call was
originating from a local telephone in Metro Manila. Upon verification with the PLDT's
Integrated Customer Management (billing) System, the ACPDD learned that the
subscriber of the reflected telephone number is Abigail R. Razon Alvarez, with
address at 17 Dominic Savio St., Savio Compound, Barangay Don Bosco,
Parañaque City. It further learned that several lines are installed at this address
with Abigail and Vernon R. Razon (respondents), among others, as subscribers.[10]

To validate its findings, the ACPDD conducted the same test calls on November 5,
2003 at the premises of the NTC in Quezon City (and in the presence of an NTC
representative[11]) using the same prepaid card (validation test). The receiving
phone at the NTC premises reflected the telephone numbers registered in the name
of Abigail as the calling number from the United Kingdom.[12]

Similar test calls subsequently conducted using the prepaid cards Unity
Card and IDT Supercalling Card revealed the same results. The caller-id-equipped
receiving phone reflected telephone numbers[13] that are in the names of Experto
Enterprises and Experto Phils, as subscribers, with a common address at No. 38
Indonesia St., Better Living Subdivision, Barangay Don Bosco, Parañaque City. It
turned out that the actual occupant of these premises is also Abigail. Subsequently,
a validation test was also conducted, yielding several telephone numbers registered
in the name of Experto Phils./Experto Enterprises as the calling numbers
supposedly from the United Kingdom.[14]

According to PLDT, had an ordinary and legitimate call been made, the screen of
the caller-id-equipped receiving phone would not reflect a local number or any
number at all. In the cards they tested, however, once the caller enters the access
and pin numbers, the respondents would route the call via the internet to a local
telephone number (in this case, a PLDT telephone number) which would connect
the call to the receiving phone. Since calls through the internet never pass the toll
center of the PLDT's IGF, users of these prepaid cards can place a call to any point
in the Philippines (provided the local line is NDD-capable) without the call appearing
as coming from abroad.[15]

On November 6, 2003 and November 19, 2003, Mr. Lawrence Narciso of the PLDT's
Quality Control Division, together with the operatives of the Philippine National
Police (PNP), conducted an ocular inspection at 17 Dominic Savio St., Savio
Compound and at No. 38 Indonesia St., Better Living Subdivision - both in
Barangay Don Bosco, Paranaque City - and discovered that PLDT telephone lines
were connected to several pieces of equipment.[16] Mr. Narciso narrated the results
of the inspection, thus -

10. During [the] ocular inspection [at 17 Dominic Savio St., Savio Compound], Ms.
Abigail Razon Alvarez allowed us to gain entry and check the telephone installations
within their premises. First, we checked the location of the telephone protectors
that are commonly installed at a concrete wall boundary inside the compound.
Some of these protectors are covered with a fabricated wooden cabinet. Other
protectors are installed beside the said wooden cabinet, xxx. The inside wiring
installations from telephone protectors to connecting block were routed to the said
adjacent room passing through the house ceiling.

11. xxx. Upon entering the so-called adjacent room, we immediately noticed that
the PLDT telephone lines were connected to the equipment situated at multi-
layered rack. The equipment room contains the following:

a. 6 Quintum router;

b. 13 Com router;

c. 1 Cisco 800 router;

d. 1 Nokia Modem for PLDT DSL;

e. 1 Meridian Subscriber's Unit[;]

f. 5 Personal Computers[;]

g. 1 Computer Printer[; and]

h. 1 Flat-bed Scanner[.]

12. We also noticed that these routers are connected to the Meridian's subscriber
unit ("SU") that has an outdoor antenna installed on the top of the roof. Meridian's
SU and outdoor antenna are service components used to connect with wireless
broadband internet access service of Meridian Telekoms.

xxxx

18. During the site inspection [at No. 38 Indonesia St., Better Living Subdivision],
we noticed that the protector of each telephone line/number xxx were enclosed in a
fabricated wooden cabinet with safety padlock. Said wooden cabinet was situated
on the concrete wall inside the compound near the garage entrance gate. The
telephone inside the wiring installations from the protector to the connecting blocks
were placed in a plastic electrical conduit routed to the adjacent room at the second
floor.[17]

On December 3, 2003, Police Superintendent Gilbert C. Cruz filed a consolidated

application for a search warrant[18] before Judge Francisco G. Mendiola of the RTC,
for the crimes of theft and violation of PD No. 401. According to PLDT, the
respondents are engaged in a form of network fraud known as International Simple
Resale (ISR) which amounts to theft under the RPC.

ISR is a method of routing and completing international long distance calls using
lines, cables, antennae and/or wave frequencies which are connected directly to the
domestic exchange facilities of the country where the call is destined (terminating
country); and, in the process, bypassing the IGF at the terminating country.[19]

Judge Mendiola found probable cause for the issuance of the search warrants
applied for. Accordingly, four search warrants[20] were issued for violations of Article
308, in relation to Article 309, of the RPC (SW A-1 and SW A-2) and of PD No. 401,
as amended (SW B-1 and SW B-2) for the ISR activities being conducted at 17
Dominic Savio St., Savio Compound and at No. 38 Indonesia St., Better Living
Subdivision, both in Barangay Don Bosco, Paranaque City. The four search warrants
enumerated the objects to be searched and seized as follows:

1. MERIDIAN SUBSCRIBERS UNIT AND PLDT DSL LINES and/or CABLES AND
ANTENNAS and/or similar equipment or device capable of transmitting air waves or
frequency, such as a Meridian Subscriber's Unit, Broadband DSL and telephone
lines;

2. PERSONAL COMPUTERS or any similar equipment or device capable of accepting

information applying the prescribed process of the information and supplying the
result of this process;

3. NOKIA MODEM or any similar equipment or device that enables data terminal
equipment such as computers to communicate with other data terminal equipment
via a telephone line;

4. QUINTUM Equipment or any similar equipment capable of receiving digital signals

from the internet and converting those signals to voice;

5. QUINTUM, 3COM AND CISCO Routers or any similar equipment capable of

switching packets of data to their assigned destination or addresses;
6. LINKS DSL SWITCH or any similar equipment capable of switching data;

7. COMPUTER PRINTERS AND SCANNERS or any similar equipment or device used

for copying and/or printing data and/or information;

8. SOFTWARE, DISKETTES, TAPES or any similar equipment or device used for

recording or storing information; and

9. Manuals, phone cards, access codes, billing statements, receipts, contracts,

checks, orders, communications and documents, lease and/or subscription
agreements or contracts, communications and documents relating to securing and
using telephone lines and/or equipment[.][21]

On the same date, the PNP searched the premises indicated in the warrants. On
December 10, 2003, a return was made with a complete inventory of the items
seized.[22] On January 14, 2004, the PLDT and the PNP filed with the Department of
Justice a joint complaint-affidavit for theft and for violation of PD No. 401 against
the respondents.[23]

On February 18, 2004, the respondents filed with the RTC a motion to quash[24] the
search warrants essentially on the following grounds: first, the RTC had no
authority to issue search warrants which were enforced in Parañaque City; second,
the enumeration of the items to be searched and seized lacked particularity;
and third, there was no probable cause for the crime of theft.

On March 12, 2004, PLDT opposed the respondents' motion.[25]

In a July 6, 2004 order,[26] the RTC denied the respondents' motion to quash.
Having been rebuffed[27] in their motion for reconsideration,[28] the respondents filed
a petition for certiorari with the CA."[29]

RULING OF THE CA

On August 11, 2006, the CA rendered the assailed decision and resolution, granting
the respondents' petition for certiorari. The CA quashed SW A-l and SW A-2 (for
theft) on the ground that they were issued for "non-existent crimes."[30] According
to the CA, inherent in the determination of probable cause for the issuance of
search warrant is the accompanying determination that an offense has been
committed. Relying on this Court's decision in Laurel v. Judge Abrogar,[31] the CA
ruled that the respondents could not have possibly committed the crime of theft
because PLDT's business of providing telecommunication services and these
services themselves are not personal properties contemplated under Article 308 of
the RPC.

With respect to SW B-l and SW B-2 (for violation of PD No. 401), the CA upheld
paragraphs one to six of the enumeration of items subject of the search. The CA
held that the stock phrase "or similar equipment or device" found in paragraphs one
to six of the search warrants did not make it suffer from generality since each
paragraph's enumeration of items was sufficiently qualified by the citation of the
specific objects to be seized and by its functions which are inherently connected
with the crime allegedly committed.

The CA, however, nullified the ensuing paragraphs, 7, 8 and 9, for lack of
particularity and ordered the return of the items seized under these provisions.
While the same stock phrase appears in paragraphs 7 and 8, the properties
described therein - i.e., printer and scanner, software, diskette and tapes - include
even those for the respondents' personal use, making the description of the things
to be seized too general in nature.

With the denial of its motion for reconsideration,[32] PLDT went to this Court via this
Rule 45 petition.

THE PETITIONER'S ARGUMENTS

PLDT faults the CA for relying on Laurel on three grounds: first, Laurel cannot be
cited yet as an authority under the principle of stare decisis because Laurel is not
yet final and executory; in fact, it is the subject of a pending motion for
reconsideration filed by PLDT itself; second, even assuming that Laurel is already
final, the facts in Laurel vary from the present case. Laurel involves the quashal of
an information on the ground that the information does not charge any offense;
hence, the determination of the existence of the elements of the crime of theft is
indispensable in resolving the motion to quash. In contrast, the present case
involves the quashal of a search warrant. Third, accordingly, in resolving the
motion, the issuing court only has to be convinced that there is probable cause to
hold that: (i) the items to be seized are connected to a criminal activity; and (ii)
these items are found in the place to be searched. Since the matter of quashing a
search warrant may be rooted on matters "extrinsic of the search warrant,"[33] the
issuing court does not need to look into the elements of the crime allegedly
committed in the same manner that the CA did in Laurel.

PLDT adds that a finding of grave abuse of discretion in the issuance of search
warrant may be justified only when there is "disregard of the requirements for the
issuance of a search warrant[.]"[34] In the present case, the CA did not find (and
could not have found) any grave abuse of discretion on the part of the RTC because
at the time the RTC issued the search warrants in 2003, Laurel had not yet been
promulgated.

In defending the validity of the nullified provisions of SW B-l and SW B-2, PLDT
argues that PD No. 401 also punishes unauthorized installation of telephone
connections. Since the enumerated items are connected to the computers that are
illegally connected to PLDT telephone lines, then these items bear a direct relation
to the offense of violation of PD No. 401, justifying their seizure.

The enumeration in paragraph 8 is likewise a proper subject of seizure because

they are the fruits of the offense as they contain information on PLDT's business
profit and other information relating to the commission of violation of PD No. 401.
Similarly, paragraph 9 specifies the fruits and evidence of violation of PD No. 401
since it supports PLDT's claim that the respondents have made a business out of
their illegal connections to PLDT lines.

THE RESPONDENTS' ARGUMENTS

The respondents counter that while Laurel may not yet be final, at least it has a
persuasive effect as the current jurisprudence on the matter. Even without Laurel,
the CA's nullification of SW A-l and SW A-2 can withstand scrutiny because of the
novelty of the issue presented before it. The nullification of paragraphs 7, 8 and 9
of SW B-l and SW B-2 must be upheld not only on the ground of broadness but for
lack of any relation whatsoever with PD No. 401 which punishes the theft of
electricity.

OUR RULING

We partially grant the petition.

Laurel and its reversal by the Court En Banc

Before proceeding with the case, a review of Laurel is in order as it involves

substantially similar facts as in the present case.

Baynet Co., Ltd. (Baynet) sells prepaid cards, "Bay Super Orient Card," that allow
their users to place a call to the Philippines from Japan. PLDT asserted that Baynet
is engaged in ISR activities by using an international private leased line (IPL) to
course Baynet's incoming international long distance calls. The IPL is linked to a
switching equipment, which is then connected to PLDT telephone lines/numbers and
equipment, with Baynet as subscriber.
To establish its case, PLDT obtained a search warrant. On the strength of the items
seized during the search of Baynet's premises, the prosecutor found probable cause
for theft against Luis Marcos Laurel (Laurel) and other Baynet officials. Accordingly,
an information was filed, alleging that the Baynet officials "take, steal and use the
international long distance calls belonging to PLDT by [ISR activities] xxx effectively
stealing this business from PLDT while using its facilities in the estimated amount of
P20,370,651.92 to the damage and prejudice of PLDT[.]"[35]

Laurel moved to quash the information on the bold assertion that ISR activities do
not constitute a crime under Philippine law. Laurel argued that an ISR activity
cannot entail taking of personal property because the international long distance
telephone calls using PLDT telephone lines belong to the caller himself; the amount
stated in the information, if at all, represents the rentals due PLDT for the caller's
usage of its facilities. Laurel argued that the business of providing international long
distance calls, i.e., PLDT's service, and the revenue derived therefrom are not
personal property that can be appropriated.

Laurel went to the Court after failing to secure the desired relief from the trial and
appellate courts,[36] raising the core issue of whether PLDT's business of providing
telecommunication services for international long distance calls is a proper subject
of theft under Article 308 of the RPC. The Court's First Division granted Laurel's
petition and ordered the quashal of the information.

Taking off from the basic rule that penal laws are construed strictly against the
State, the Court ruled that international long distance calls and the business of
providing telecommunication or telephone services by PLDT are not personal
properties that can be the subject of theft.

One is apt to conclude that "personal property" standing alone, covers both tangible
and intangible properties and are subject of theft under the Revised Penal Code.
But the words "Personal property" under the Revised Penal Code must be
considered in tandem with the word "take" in the law. The statutory definition of
"taking" and movable property indicates that, clearly, not all personal properties
may be the proper subjects of theft. The general rule is that, only movable
properties which have physical or material existence and susceptible of occupation
by another are proper objects of theft, xxx.

xxxx

xxx. Business, like services in business, although are properties, are not proper
subjects of theft under the Revised Penal Code because the same cannot be "taken"
or "occupied." If it were otherwise, xxx there would be no juridical difference
between the taking of the business of a person or the services provided by him for
gain, vis-a-vis, the taking of goods, wares or merchandise, or equipment
comprising his business. If it was its intention to include "business" as personal
property under Article 308 of the Revised Penal Code, the Philippine Legislature
should have spoken in language that is clear and definite: that business is personal
property under Article 308 of the Revised Penal Code.

xxxx

The petitioner is not charged, under the Amended Information, for theft of
telecommunication or telephone services offered by PLDT. Even if he is, the term
"personal property" under Article 308 of the Revised Penal Code cannot be
interpreted beyond its seams so as to include "telecommunication or telephone
services" or computer services for that matter. xxx. Even at common law, neither
time nor services may be taken and occupied or appropriated. A service is generally
not considered property and a theft of service would not, therefore, constitute theft
since there can be no caption or asportation. Neither is the unauthorized use of the
equipment and facilities of PLDT by [Laurel] theft under [Article 308].

If it was the intent of the Philippine Legislature, in 1930, to include services to be

the subject of theft, it should have incorporated the same in Article 308 of the
Revised Penal Code. The Legislature did not. In fact, the Revised Penal Code does
not even contain a definition of services.[37]

PLDT[38] moved for reconsideration and referral of the case to the Court En Banc.
The Court's First Division granted the referral.

On January 13, 2009 (or while the present petition was pending in court), the
Court En Banc unanimously granted PLDT's motion for reconsideration.[39] The Court
ruled that even prior to the passage of the RPC, jurisprudence is settled that "any
personal property, tangible or intangible, corporeal or incorporeal, capable of
appropriation can be the object of theft."[40] This jurisprudence, in turn, applied the
prevailing legal meaning of the term "personal property" under the old Civil Code as
"anything susceptible of appropriation and not included in the foregoing chapter
(not real property)."[41] PLDT's telephone service or its business of providing this
was appropriable personal property and was, in fact, the subject of appropriation in
an ISR operation, facilitated by means of the unlawful use of PLDT's facilities.

In this regard, the Amended Information inaccurately describes the offense by

making it appear that what [Laurel] took were the international long distance
telephone calls, rather than respondent PLDT's business.
xxxx

Indeed, while it may be conceded that "international long distance calls," the
matter alleged to be stolen xxx, take the form of electrical energy, it cannot be said
that such international long distance calls were personal properties belonging to
PLDT since the latter could not have acquired ownership over such calls. PLDT
merely encodes, augments, enhances, decodes and transmits said calls using its
complex communications infrastructure and facilities. PLDT not being the owner of
said telephone calls, then it could not validly claim that such telephone calls were
taken without its consent. It is the use of these communications facilities without
the consent of PLDT that constitutes the crime of theft, which is the unlawful taking
of the telephone services and business.

Therefore, the business of providing telecommunication and the telephone service

are personal property under Article 308 of the Revised Penal Code, and the act of
engaging in ISR is an act of "subtraction" penalized under said article.[42]

The Court En Banc's reversal of its Laurel Division ruling during the pendency of this
petition significantly impacts on how the Court should resolve the present case for
two reasons:

First, the Laurel En Banc ruling categorically equated an ISR activity to theft under
the RPC. In so doing, whatever alleged factual variance there may be
between Laurel and the present case cannot render Laurel inapplicable.

Second, and more importantly, in a Rule 45 petition, the Court basically determines
whether the CA was legally correct in determining whether the RTC committed
grave abuse of discretion. Under this premise, the CA ordinarily gauges the grave
abuse of discretion at the time the RTC rendered its assailed resolution. In quashing
SW A-l and SW A-2, note that the CA relied on the Laurel Division ruling at the time
when it was still subject of a pending motion for reconsideration. The CA, in fact,
did not expressly impute grave abuse of discretion on the RTC when the RTC issued
the search warrants and later refused to quash these. Understandably, the CA could
not have really found the presence of grave abuse of discretion for there was
no Laurel ruling to speak of at the time the RTC issued the search warrants.

These peculiar facts require us to more carefully analyze our prism of review under
Rule 45.

Requisites for the issuance of search warrant; probable cause requires the
probable existence of an offense
Section 2, Article III of the 1987 Constitution guarantees the right of persons to be
free from unreasonable searches and seizures.

Section 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 purposes of the constitutional provision against unlawful searches and seizures
are to: (i) prevent the officers of the law from violating private security in person
and property and illegally invading the sanctity of the home; and (ii) give remedy
against such usurpations when attempted or committed.[43]

The constitutional requirement for the issuance of a search warrant is reiterated

under Sections 4 and 5, Rule 126 of the Revised Rules of Criminal Procedure. These
sections lay down the following requirements for the issuance of a search warrant:
(1) the existence of probable cause; (2) the probable cause must be determined
personally by the judge; (3) the judge must examine, in writing and under oath or
affirmation, the complainant and the witnesses he or she may produce; (4) the
applicant and the witnesses testify on the facts personally known to them; and (5)
the warrant specifically describes the place to be searched and the things to be
seized.[44] Should any of these requisites be absent, the party aggrieved by the
issuance and enforcement of the search warrant may file a motion to quash the
search warrant with the issuing court or with the court where the action is
subsequently instituted.[45]

A search warrant proceeding is a special criminal and judicial process akin to a writ
of discovery. It is designed by the Rules of Criminal Procedure to respond only to an
incident in the main case, if one has already been instituted, or in anticipation
thereof. Since it is at most incidental to the main criminal case, an order granting
or denying a motion to quash a search warrant may be questioned only via a
petition for certiorari under Rule 65.[46]

When confronted with this petition, the higher court must necessarily determine the
validity of the lower court's action from the prism of whether it was tainted with
grave abuse of discretion. By grave abuse of discretion, jurisprudence refers to the
capricious and whimsical exercise of judgment equivalent to lack of jurisdiction, or
to the exercise of power in an arbitrary or despotic manner by reason of passion or
personal hostility or in a manner so patent and gross as to amount to an invasion of
positive duty or to the virtual refusal to perform the duty enjoined or to act at all in
contemplation of the law.[47]

In a certiorari proceeding, the determination translates to an inquiry on whether

the requirements and limitations provided under the Constitution and the Rules of
Court were properly complied with, from the issuance of the warrant up to its
implementation. In view of the constitutional objective of preventing stealthy
encroachment upon or the gradual depreciation of the rights secured by the
Constitution, strict compliance with the constitutional and procedural requirements
is required. A judge who issues a search warrant without complying with these
requirements commits grave abuse of discretion.[48]

One of the constitutional requirements for the validity of a search warrant is that it
must be issued based on probable cause which, under the Rules, must be in
connection with one specific offense. In search warrant proceedings, probable cause
is defined as such facts and circumstances that 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.[49]

In the determination of probable cause, the court must necessarily determine

whether an offense exists to justify the issuance or quashal of the search
warrant[50] because the personal properties that may be subject of the search
warrant are very much intertwined with the "one specific offense" requirement of
probable cause.[51] Contrary to PLDT's claim, the only way to determine whether a
warrant should issue in connection with one specific offense is to juxtapose the
facts and circumstances presented by the applicant with the elements of the
offense that are alleged to support the search warrant.

Reviewing the RTC's denial of the motion to quash SWA-l and SW A-2

a. From the prism of Rule 65

The facts of the present case easily call to mind the case of Columbia Pictures, Inc.
v. CA[52] involving copyright infringement. In that case, the CA likewise voided the
search warrant issued by the trial court by applying a doctrine that added a new
requirement (i.e., the production of the master tape for comparison with the
allegedly pirate copies) in determining the existence of probable cause for the
issuance of search warrant in copyright infringement cases. The doctrine referred to
was laid down in 20th Century Fox Film Corporation v. Court of Appeals.
20th Century Fox, however, was promulgated more than eight months after the
search warrants were issued by the RTC. In reversing the CA, the Court ruled:
Mindful as we are of the ramifications of the doctrine of stare decisis and the
rudiments of fair play, it is our considered view that the 20th Century Fox ruling
cannot be retroactively applied to the instant case to justify the quashal of Search
Warrant No. 87-053. [The] petitioners' consistent position that the order of the
lower court[,] xxx [which denied the respondents'] motion to lift the order of search
warrant^] was properly issued, [because there was] satisfactory compliance with
the then prevailing standards under the law for determination of probable cause, is
indeed well taken. The lower court could not possibly have expected more evidence
from petitioners in their application for a search warrant other than what the law
and jurisprudence, then existing and judicially accepted, required with respect to
the finding of probable cause.[53]

Columbia could easily be cited in favor of PLDT to sustain the RTC's refusal to quash
the search warrant. Indeed, in quashing SW A-l and SW A-2, the CA never
intimated that the RTC disregarded any of the requisites for the issuance of a
search warrant as these requirements were interpreted and observed under
the then prevailing jurisprudence. The CA could not have done so because
precisely the issue of whether telephone services or the business of providing these
services could be the subject of theft under the RPC had not yet reached the Court
when the search warrants were applied for and issued.

However, what distinguishes Columbia from the present case is the focus
of Columbia's legal rationale. Columbia's focus was not on whether the facts and
circumstances would reasonably lead to the conclusion that an offense has been or
is being committed and that the objects sought in connection with the offense were
in the place to be searched - the primary points of focus of the present
case. Columbia's focus was on whether the evidence presented at the time the
search warrant was applied for was sufficient to establish the facts and
circumstances required for establishing probable cause to issue a search warrant.

Nonetheless, Columbia serves as a neat guide for the CA to decide the

respondents' certiorari petition. In Columbia, the Court applied the principle of non-
retroactivity of its ruling in 20th Century Fox, whose finality was not an issue, in
reversing a CA ruling. The Court's attitude in that case should have been adopted
by the CA in the present case a fortiori since the ruling that the CA relied upon was
not yet final at the time the CA resolved to quash the search warrants.

b. Supervening events justifying a broader review under Rule 65

Ordinarily, the CA's determination under Rule 65 is limited to whether the RTC
gravely abused its discretion in granting or denying the motion to quash based on
facts then existing. Nonetheless, the Court recognizes that supervening facts may
transpire after the issuance and implementation of the search warrant that may
provide justification for the quashal of the search warrant via a petition
for certiorari.

For one, if the offense for which the warrant is issued is subsequently
decriminalized during the pendency of the petition for certiorari, then the warrant
may be quashed.[54] For another, a subsequent ruling from the Court that a similar
set of facts and circumstances does not constitute an offense, as alleged in the
search warrant application, may be used as a ground to quash a warrant.[55] In both
instances, the underlying reason for quashing the search warrant is the absence of
probable cause which can only possibly exist when the combination of facts and
circumstances points to the possible commission of an offense that may be
evidenced by the personal properties sought to be seized. To the CA, the second
instance mentioned justified the quashal of the search warrants.

We would have readily agreed with the CA if the Laurel Division ruling had not been
subsequently reversed. As things turned out, however, the Court granted PLDT's
motion for reconsideration of the Court First Division's ruling in Laurel and ruled
that "the act of engaging in ISR is xxx penalized under xxx article [308 of the
RPC]."[56] As the RTC itself found, PLDT successfully established in its application for
a search warrant a probable cause for theft by evidence that Laurel's ISR activities
deprived PLDT of its telephone services and of its business of providing these
services without its consent.

b1. the stare decisis aspect

With the Court En Banc's reversal of the earlier Laurel ruling, then the CA's quashal
of these warrants would have no leg to stand on. This is the dire consequence of
failing to appreciate the full import of the doctrine of stare decisis that the CA
ignored.

Under Article 8 of the Civil Code, the decisions of this Court form part of the
country's legal system. While these decisions are not laws pursuant to the doctrine
of separation of powers, they evidence the laws' meaning, breadth, and scope and,
therefore, have the same binding force as the laws themselves.[57] Hence, the
Court's interpretation of a statute forms part of the law as of the date it was
originally passed because the Court's construction merely establishes the
contemporaneous legislative intent that the interpreted law carries into effect.[58]

Article 8 of the Civil Code embodies the basic principle of stare decisis et non quieta
movere (to adhere to precedents and not to unsettle established matters) that
enjoins adherence to judicial precedents embodied in the decision of the Supreme
Court. That decision becomes a judicial precedent to be followed in subsequent
cases by all courts in the land. The doctrine of stare decisis, in turn, is based on the
principle that once a question of law has been examined and decided, it should be
deemed settled and closed to further argument.[59] The doctrine of
(horizontal) stare decisis is one of policy, grounded on the necessity of securing
certainty and stability of judicial decisions.[60]

In the field of adjudication, a case cannot yet acquire the status of a "decided" case
that is "deemed settled and closed to further argument" if the Court's decision is
still the subject of a motion for reconsideration seasonably filed by the moving
party. Under the Rules of Court, a party is expressly allowed to file a motion for
reconsideration of the Court's decision within 15 days from notice.[61] Since the
doctrine of stare decisis is founded on the necessity of securing certainty and
stability in law, then these attributes will spring only once the Court's ruling has
lapsed to finality in accordance with law. In Ting v. Velez-Ting,[62] we ruled that:

The principle of stare decisis enjoins adherence by lower courts to doctrinal rules
established by this Court in its final decisions. It is based on the principle that once
a question of law has been examined and decided, it should be deemed settled and
closed to further argument.

In applying Laurel despite PLDT's statement that the case is still subject of a
pending motion for reconsideration,[63] the CA legally erred in refusing to reconsider
its ruling that largely relied on a non-fmal ruling of the Court. While the CA's dutiful
desire to apply the latest pronouncement of the Court in Laurel is expected, it
should have acted with caution, instead of excitement, on being informed by PLDT
of its pending motion for reconsideration; it should have then followed the principle
of stare decisis. The appellate court's application of an exceptional circumstance
when it may order the quashal of the search warrant on grounds not existing at the
time the warrant was issued or implemented must still rest on prudential grounds if
only to maintain the limitation of the scope of the remedy of certiorari as a writ to
correct errors of jurisdiction and not mere errors of judgment.

Still, the respondents attempt to justify the CA's action by arguing that the CA
would still rule in the way it did[64] even without Laurel. As PLDT correctly pointed
out, there is simply nothing in the CA's decision that would support its quashal of
the search warrant independently of Laurel. We must bear in mind that the CA's
quashal of SW A-l and SW A-2 operated under the strictures of a certiorari petition,
where the presence of grave abuse of discretion is necessary for the corrective writ
to issue since the appellate court exercises its supervisory jurisdiction in this case.
We simply cannot second-guess what the CA's action could have been.
Lastly, the CA's reliance on Savage v. Judge Taypin[65] can neither sustain the
quashal of SW A-l and SW A-2. In Savage, the Court granted the certiorari petition
and quashed the search warrant because the alleged crime (unfair competition
involving design patents) that supported the search warrant had already been
repealed, and the act complained of, if at all, gave rise only to civil liability (for
patent infringement). Having been decriminalized, probable cause for the crime
alleged could not possibly exist.

In the present case, the issue is whether the commission of an ISR activity, in the
manner that PLDT's evidence shows, sufficiently establishes probable cause for the
issuance of search warrants for the crime of theft. Unlike in Savage, the Court
in Laurel was not confronted with the issue of decriminalization (which is a
legislative prerogative) but whether the commission of an ISR activity meets the
elements of the offense of theft for purposes of quashing an information. Since the
Court, in Laurel, ultimately ruled then an ISR activity justifies the elements of theft
that must necessarily be alleged in the information a fortiori, the RTC's
determination should be sustained on certiorari.

The requirement of particularity in SWB-1 and SWB-2

On the issue of particularity in SW B-l and SW B-2, we note that the respondents
have not appealed to us the CA ruling that sustained paragraphs 1 to 6 of the
search warrants. Hence, we shall limit our discussion to the question of whether the
CA correctly ruled that the RTC gravely abused its discretion insofar as it refused to
quash paragraphs 7 to 9 of SW B-l and SWB-2.

Aside from the requirement of probable cause, the Constitution also requires that
the search warrant must particularly describe the place to be searched and the
things to be seized. This requirement of particularity in the description, especially of
the things to be seized, is meant to enable the law enforcers to readily identify the
properties to be seized and, thus, prevent the seizure of the wrong items. It seeks
to leave the law enforcers with no discretion at all regarding these articles and to
give life to the constitutional provision against unreasonable searches and
seizures.[66] In other words, the requisite sufficient particularity is aimed at
preventing the law enforcer from exercising unlimited discretion as to what things
are to be taken under the warrant and ensure that only those connected with the
offense for which the warrant was issued shall be seized.[67]

The requirement of specificity, however, does not require technical accuracy in the
description of the property to be seized. Specificity is satisfied if the personal
properties' description is as far as the circumstances will ordinarily allow it to be so
described. The nature of the description should vary according to whether the
identity of the property or its character is a matter of concern.[68] One of the tests
to determine the particularity in the description of objects to be seized under a
search warrant is when the things described are limited to those which bear direct
relation to the offense for which the warrant is being issued.[69]

Additionally, the Rules require that a search warrant should be issued "in
connection with one specific offense" to prevent the issuance of a scatter-shot
warrant.[70] The one-specific-offense requirement reinforces the constitutional
requirement that a search warrant should issue only on the basis of probable
cause.[71] Since the primary objective of applying for a search warrant is to obtain
evidence to be used in a subsequent prosecution for an offense for which the search
warrant was applied, a judge issuing a particular warrant must satisfy himself that
the evidence presented by the applicant establishes the facts and circumstances
relating to this specific offense for which the warrant is sought and
issued.[72] Accordingly, in a subsequent challenge against the validity of the
warrant, the applicant cannot be allowed to maintain its validity based on facts and
circumstances that may be related to other search warrants but are extrinsic to the
warrant in question.

Under the Rules, the following personal property may be subject of search warrant:
(i) the subject of the offense; (ii) fruits of the offense; or (iii) those used or
intended to be used as the means of committing an offense. In the present case,
we sustain the CA's ruling nullifying paragraphs 7, 8 and 9 of SW B-l and SW B-2
for failing the test of particularity. More specifically, these provisions do not show
how the enumerated items could have possibly been connected with the crime for
which the warrant was issued, i.e., P.D. No. 401. For clarity, PD No. 401 punishes:

Section 1. Any person who installs any water, electrical, telephone or piped
gas connection without previous authority from xxx the Philippine Long
Distance Telephone Company, xxx, tampers and/or uses tampered water,
electrical or gas meters, jumpers or other devices whereby water, electricity or
piped gas is stolen; steals or pilfers water, electric or piped gas meters, or water,
electric and/or telephone wires, or piped gas pipes or conduits; knowingly
possesses stolen or pilfered water, electrical or gas meters as well as stolen or
pilfered water, electrical and/or telephone wires, or piped gas pipes and conduits,
shall, upon conviction, be punished with prision correccional in its minimum period
or a fine ranging from two thousand to six thousand pesos, or both.[73]

Paragraphs 7 to 8 of SW B-l and SW B-2 read as follows:

7. COMPUTER PRINTERS AND SCANNERS or any similar equipment or device used

for copying and/or printing data and/or information;
8. SOFTWARE, DISKETTES, TAPES or any similar equipment or device used for
recording or storing information; and

9. Manuals, phone cards, access codes, billing statements, receipts, contracts,

checks, orders, communications and documents, lease and/or subscription
agreements or contracts, communications and documents relating to securing and
using telephone lines and/or equipment[.][74]

According to PLDT, the items in paragraph 7 have a direct relation to violation of PD

No. 401 because the items are connected to computers that, in turn, are linked to
the unauthorized connections to PLDT telephone lines. With regard to the software,
diskette and tapes in paragraph 8, and the items in paragraph 9, PLDT argues that
these items are "fruits of the offense" and that the information it contains
"constitutes the business profit" of PLDT. According to PLDT, it corroborates the fact
that the respondents have made a business out of their illegal connections to its
telephone lines.

We disagree with PLDT. The fact that the printers and scanners are or may be
connected to the other illegal connections to the PLDT telephone lines does not
make them the subject of the offense or fruits of the offense, much less could they
become a means of committing an offense.

It is clear from PLDT's submission that it confuses the crime for which SW B-l and
SW B-2 were issued with the crime for which SW A-l and SWA-2 were issued: SW
B-l and SW B-2 were issued for violation of PD No. 401, to be enforced in two
different places as identified in the warrants. The crime for which these search
warrants were issued does not pertain to the crime of theft - where matters of
personal property and the taking thereof with intent to gain become significant -
but to PD No. 401.

These items could not be the subject of a violation of PD No. 401 since PLDT itself
does not claim that these items themselves comprise the unauthorized installations.
For emphasis, what PD No. 401 punishes is the unauthorized installation of
telephone connection without the previous consent of PLDT. In the present case,
PLDT has not shown that connecting printers, scanners, diskettes or tapes to a
computer, even if connected to a PLDT telephone line, would or should require its
prior authorization.

Neither could these items be a means of committing a violation of PD No. 401 since
these copying, printing and storage devices in no way aided the respondents in
making the unauthorized connections. While these items may be accessory to the
computers and other equipment linked to telephone lines, PD No. 401 does not
cover this kind of items within the scope of the prohibition. To allow the seizure of
items under the PLDT's interpretation would, as the CA correctly observed, allow
the seizure under the warrant of properties for personal use of the respondents.

If PLDT seeks the seizure of these items to prove that these installations contain
the respondents' financial gain and the corresponding business loss to PLDT, then
that purpose is served by SW A-l and SW A-2 since this is what PLDT essentially
complained of in charging the respondents with theft. However, the same reasoning
does not justify its seizure under a warrant for violation of PD No. 401 since these
items are not directly connected to the PLDT telephone lines and PLDT has not even
claimed that the installation of these items requires prior authorization from it.

WHEREFORE, premises considered, the petition is PARTIALLY GRANTED. The

decision and the resolution of the Court of Appeals in CA-G.R. SP No. 89213 are
hereby MODIFIED in that SW A-l and SW A-2 are hereby declared valid and
constitutional.

SO ORDERED.

IRST DIVISION
[ G.R. No. 199032, November 19, 2014 ]
RETIRED SPO4 BIENVENIDO LAUD, PETITIONER, VS. PEOPLE
OF THE PHILIPPINES, RESPONDENT.

DECISION

PER CURIAM:

Assailed in this petition for review on certiorari[1] are the Decision[2] dated April 25,
2011 and the Resolution[3] dated October 17, 2011 of the Court of Appeals (CA) in
CA-G.R. SP. No. 113017 upholding the validity of Search Warrant No. 09-14407.[4]

The Facts

On July 10, 2009, the Philippine National Police (PNP), through Police Senior
Superintendent Roberto B. Fajardo, applied with the Regional Trial Court (RTC) of
Manila, Branch 50 (Manila-RTC) for a warrant to search three (3) caves located
inside the Laud Compound in Purok 3, Barangay Ma-a, Davao City, where the
alleged remains of the victims summarily executed by the so-called “Davao Death
Squad” may be found.[5] In support of the application, a certain Ernesto Avasola
(Avasola) was presented to the RTC and there testified that he personally witnessed
the killing of six (6) persons in December 2005, and was, in fact, part of the group
that buried the victims.[6]

Judge William Simon P. Peralta (Judge Peralta), acting as Vice Executive Judge of
the Manila-RTC, found probable cause for the issuance of a search warrant, and
thus, issued Search Warrant No. 09-14407[7] which was later enforced by the
elements of the PNP-Criminal Investigation and Detection Group, in coordination
with the members of the Scene of the Crime Operatives on July 15, 2009. The
search of the Laud Compound caves yielded positive results for the presence of
human remains.[8]

On July 20, 2009, herein petitioner, retired SPO4 Bienvenido Laud (Laud), filed an
Urgent Motion to Quash and to Suppress Illegally Seized Evidence[9] premised on
the following grounds: (a) Judge Peralta had no authority to act on the application
for a search warrant since he had been automatically divested of his position as
Vice Executive Judge when several administrative penalties were imposed against
him by the Court;[10] (b) the Manila-RTC had no jurisdiction to issue Search
Warrant No. 09-14407 which was to be enforced in Davao City;[11] (c) the human
remains sought to be seized are not a proper subject of a search warrant;[12] (d)
the police officers are mandated to follow the prescribed procedure for exhumation
of human remains;[13] (e) the search warrant was issued despite lack of probable
cause;[14] (f) the rule against forum shopping was violated;[15] and (g) there was a
violation of the rule requiring one specific offense and the proper specification of
the place to be searched and the articles to be seized.[16]

The Manila-RTC Ruling

In an Order[17] dated July 23, 2009, the Manila-RTC granted the motion of Laud
“after a careful consideration [of] the grounds alleged [therein].” Aside from this
general statement, the said Order contained no discussion on the particular reasons
from which the Manila-RTC derived its conclusion.

Respondent, the People of the Philippines (the People), filed a Motion for
Reconsideration[18] which was, however, denied in an Order[19] dated December 8,
2009, wherein the Manila-RTC, this time, articulated its reasons for the warrant’s
quashal, namely: (a) the People failed to show any compelling reason to justify the
issuance of a search warrant by the Manila-RTC which was to be implemented in
Davao City where the offense was allegedly committed, in violation of Section 2,
Rule 126 of the Rules of Court;[20] (b) the fact that the alleged offense happened
almost four (4) years before the search warrant application was filed rendered
doubtful the existence of probable cause;[21] and (c) the applicant, i.e., the PNP,
violated the rule against forum shopping as the subject matter of the present
search warrant application is exactly the same as the one contained in a previous
application[22] before the RTC of Davao City, Branch 15 (Davao-RTC) which had
been denied.[23]

Unconvinced, the People filed a petition for certiorari before the CA, docketed as
CA-G.R. SP. No. 113017.

The CA Ruling

In a Decision[24] dated April 25, 2011, the CA granted the People’s petition and
thereby annulled and set aside the Orders of the Manila-RTC for having been
tainted with grave abuse of discretion.

It held that the requirements for the issuance of a search warrant were satisfied,
pointing out that an application therefor involving a heinous crime, such as Murder,
is an exception to the compelling reasons requirement under Section 2, Rule 126 of
the Rules of Court as explicitly recognized in A.M. No. 99-20-09-SC[25] and
reiterated in A.M. No. 03-8-02-SC,[26] provided that the application is filed by the
PNP, the National Bureau of Investigation (NBI), the Presidential Anti-Organized
Crime Task Force (PAOC-TF) or the Reaction Against Crime Task Force (REACT-
TF),[27] with the endorsement of its head, before the RTC of Manila or Quezon City,
and the warrant be consequently issued by the Executive Judge or Vice-Executive
Judge of either of the said courts, as in this case.[28]

Also, the CA found that probable cause was established since, among others,
witness Avasola deposed and testified that he personally witnessed the murder of
six (6) persons in December 2005 and was actually part of the group that buried
the victims – two bodies in each of the three (3) caves.[29] Further, it observed that
the Manila-RTC failed to consider the fear of reprisal and natural reluctance of a
witness to get involved in a criminal case, stating that these are sufficient reasons
to justify the delay attending the application of a search warrant.[30] Accordingly, it
deemed that the physical evidence of a protruding human bone in plain view in one
of the caves, and Avasola’s first-hand eye witness account both concur and point to
the only reasonable conclusion that the crime of Murder had been committed and
that the human remains of the victims were located in the Laud Compound.[31]

Finally, the CA debunked the claim of forum shopping, finding that the prior
application for a search warrant filed before the Davao-RTC was based on facts and
circumstances different from those in the application filed before the Manila-RTC.[32]

Dissatisfied, Laud moved for reconsideration which was, however, denied in a

Resolution[33] dated October 17, 2011, hence, this petition.

The Issues Before the Court

The issues for the Court’s resolution are as follows: (a) whether the administrative
penalties imposed on Judge Peralta invalidated Search Warrant No. 09-14407; (b)
whether the Manila-RTC had jurisdiction to issue the said warrant despite non-
compliance with the compelling reasons requirement under Section 2, Rule 126 of
the Rules of Court; (c) whether the requirements of probable cause and particular
description were complied with and the one-specific-offense rule under Section 4,
Rule 126 of the Rules of Court was violated; and (d) whether the applicant for the
search warrant, i.e., the PNP, violated the rule against forum shopping.

The Court’s Ruling

The petition has no merit.

A. Effect of Judge Peralta’s Administrative Penalties.

______________________________________________

Citing Section 5, Chapter III of A.M. No. 03-8-02-SC which provides that “[t]he
imposition upon an Executive Judge or Vice-Executive Judge of an administrative
penalty of at least a reprimand shall automatically operate to divest him of his
position as such,” Laud claims that Judge Peralta had no authority to act as Vice-
Executive Judge and accordingly issue Search Warrant No. 09-14407 in view of the
Court’s Resolution in Dee C. Chuan & Sons, Inc. v. Judge Peralta[34] wherein he was
administratively penalized with fines of P15,000.00 and P5,000.00.[35]

While the Court does agree that the imposition of said administrative penalties did
operate to divest Judge Peralta’s authority to act as Vice-Executive Judge, it must
be qualified that the abstraction of such authority would not, by and of itself, result
in the invalidity of Search Warrant No. 09-14407 considering that Judge Peralta
may be considered to have made the issuance as a de facto officer whose acts
would, nonetheless, remain valid.

Funa v. Agra[36] defines who a de facto officer is and explains that his acts are just
as valid for all purposes as those of a de jure officer, in so far as the public or third
persons who are interested therein are concerned, viz.:

A de facto officer is one who derives his appointment from one having colorable
authority to appoint, if the office is an appointive office, and whose appointment is
valid on its face. He may also be one who is in possession of an office, and is
discharging [his] duties under color of authority, by which is meant authority
derived from an appointment, however irregular or informal, so that the incumbent
is not a mere volunteer. Consequently, the acts of the de facto officer are just as
valid for all purposes as those of a de jure officer, in so far as the public or third
persons who are interested therein are concerned.[37]

The treatment of a de facto officer’s acts is premised on the reality that third
persons cannot always investigate the right of one assuming to hold an important
office and, as such, have a right to assume that officials apparently qualified and in
office are legally such.[38] Public interest demands that acts of persons holding,
under color of title, an office created by a valid statute be, likewise, deemed valid
insofar as the public – as distinguished from the officer in question – is
concerned.[39] Indeed, it is far more cogently acknowledged that the de facto
doctrine has been formulated, not for the protection of the de facto officer
principally, but rather for the protection of the public and individuals who get
involved in the official acts of persons discharging the duties of an office without
being lawful officers.[40]

In order for the de facto doctrine to apply, all of the following elements must
concur: (a) there must be a de jure office; (b) there must be color of right or
general acquiescence by the public; and (c) there must be actual physical
possession of the office in good faith.[41]

The existence of the foregoing elements is rather clear in this case. Undoubtedly,
there is a de jure office of a 2nd Vice-Executive Judge. Judge Peralta also had a
colorable right to the said office as he was duly appointed to such position and was
only divested of the same by virtue of a supervening legal technicality – that is, the
operation of Section 5, Chapter III of A.M. No. 03-8-02-SC as above-explained;
also, it may be said that there was general acquiescence by the public since the
search warrant application was regularly endorsed to the sala of Judge Peralta by
the Office of the Clerk of Court of the Manila-RTC under his apparent authority as
2nd Vice Executive Judge.[42] Finally, Judge Peralta’s actual physical possession of
the said office is presumed to be in good faith, as the contrary was not
established.[43] Accordingly, Judge Peralta can be considered to have acted as a de
facto officer when he issued Search Warrant No. 09-14407, hence, treated as valid
as if it was issued by a de jure officer suffering no administrative impediment.

B. Jurisdiction of the Manila-RTC to Issue Search Warrant No. 09-

14407; Exception to the Compelling Reasons Requirement Under
Section 2, Rule 126 of the Rules of Court.
______________________________________________

Section 12, Chapter V of A.M. No. 03-8-02-SC states the requirements for the
issuance of search warrants in special criminal cases by the RTCs of Manila and
Quezon City. These special criminal cases pertain to those “involving heinous
crimes, illegal gambling, illegal possession of firearms and ammunitions, as well as
violations of the Comprehensive Dangerous Drugs Act of 2002, the Intellectual
Property Code, the Anti-Money Laundering Act of 2001, the Tariff and Customs
Code, as amended, and other relevant laws that may hereafter be enacted by
Congress, and included herein by the Supreme Court.” Search warrant applications
for such cases may be filed by “the National Bureau of Investigation (NBI),
the Philippine National Police (PNP) and the Anti-Crime Task Force (ACTAF),”
and “personally endorsed by the heads of such agencies.” As in ordinary search
warrant applications, they “shall particularly describe therein the places to be
searched and/or the property or things to be seized as prescribed in the Rules of
Court.” “The Executive Judges [of these RTCs] and, whenever they are on official
leave of absence or are not physically present in the station, the Vice-Executive
Judges” are authorized to act on such applications and “shall issue the warrants, if
justified, which may be served in places outside the territorial jurisdiction of
the said courts.”

The Court observes that all the above-stated requirements were complied with in
this case.

As the records would show, the search warrant application was filed before the
Manila-RTC by the PNP and was endorsed by its head, PNP Chief Jesus Ame
Versosa,[44] particularly describing the place to be searched and the things to be
seized (as will be elaborated later on) in connection with the heinous crime of
Murder.[45] Finding probable cause therefor, Judge Peralta, in his capacity as
2nd Vice-Executive Judge, issued Search Warrant No. 09-14407 which, as the rules
state, may be served in places outside the territorial jurisdiction of the said RTC.

Notably, the fact that a search warrant application involves a “special criminal case”
excludes it from the compelling reason requirement under Section 2, Rule 126 of
the Rules of Court which provides:

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

a) Any court within whose territorial jurisdiction a crime was committed.

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

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

As explicitly mentioned in Section 12, Chapter V of A.M. No. 03-8-02-SC, the rule
on search warrant applications before the Manila and Quezon City RTCs for the
above-mentioned special criminal cases “shall be an exception to Section 2 of Rule
126 of the Rules of Court.” Perceptibly, the fact that a search warrant is being
applied for in connection with a special criminal case as above-classified already
presumes the existence of a compelling reason; hence, any statement to this effect
would be superfluous and therefore should be dispensed with. By all indications,
Section 12, Chapter V of A.M. No. 03-8-02-SC allows the Manila and Quezon City
RTCs to issue warrants to be served in places outside their territorial jurisdiction for
as long as the parameters under the said section have been complied with, as in
this case. Thus, on these grounds, the Court finds nothing defective in the
preliminary issuance of Search Warrant No. 09-14407. Perforce, the RTC-Manila
should not have overturned it.

C. Compliance with the Constitutional Requirements for the Issuance of

Search Warrant No. 09-14407 and the One-Specific-Offense Rule
Under Section 4, Rule 126 of the Rules of Court.
_____________________________________________

In order to protect the people’s right against unreasonable searches and seizures,
Section 2, Article III of the 1987 Philippine Constitution (Constitution) provides that
no search warrant shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized:

SEC. 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.

Complementarily, Section 4, Rule 126 of the Rules of Court states that a search
warrant shall not be issued except upon probable cause in connection with one
specific offense:

SEC. 4. Requisites for issuing search warrant. - A search warrant shall not
issue except upon probable cause in connection with one specific offense to
be determined personally by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce, and particularly describing
the place to be searched and the things to be seized which may be anywhere in the
Philippines. (Emphasis supplied)

In this case, the existence of probable cause for the issuance of Search Warrant No.
09-14407 is evident from the first-hand account of Avasola who, in his deposition,
stated that he personally witnessed the commission of the afore-stated crime and
was, in fact, part of the group that buried the victims:

Q9-Who are these six (6) male victims who were killed and buried in the caves in
December 2005 at around 9:00 p.m.?

A9-I heard Tatay Laud calling the names of the two victims when they were still
alive as Pedro and Mario. I don’t know the names of the other four victims.

Q10-What happened after Pedro, Mario and the other four victims were killed?

A10-Tatay Laud ordered me and the six (6) killers to bring and bury equally the
bodies in the three caves. We buried Pedro and Mario altogether in the first cave,
located more or less 13 meters from the makeshift house of Tatay Laud, the other
two victims in the second cave and the remaining two in the third cave.

Q11-How did you get there at Laud Compound in the evening of December 2005?

A11-I was ordered by Tatay Laud to go [to] the place. I ran errands [for] him.[46]
Avasola’s statements in his deposition were confirmed during the hearing on July
10, 2009, where Judge Peralta conducted the following examination:

Court: x x x Anong panandaan mo? Nandoon ka ba noong naghukay, nakatago o

kasama ka?

Mr. Avasola: Kasama po ako sa pagbuhat ng mga tao, sir.

Court: Mga ilang katao?

Mr. Avasola: Anim (6) po.

Court: May mass grave ba na nahukay?

Mr. Avasola: May tatlong kweba po na maliliit yung isa malaki. x x x.[47]

Verily, the facts and circumstances established from the testimony of Avasola, who
was personally examined by Judge Peralta, sufficiently show that more likely than
not the crime of Murder of six (6) persons had been perpetrated and that the
human remains in connection with the same are in the place sought to be searched.
In Santos v. Pryce Gases, Inc.,[48] the Court explained the quantum of evidence
necessary to establish probable cause for a search warrant, as follows:

Probable cause for a search warrant is defined as such facts and circumstances
which would lead a reasonably discrete 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. A finding of probable cause needs only to rest
on evidence showing that, more likely than not, a crime has been committed and
that it was committed by the accused. Probable cause demands more than bare
suspicion; it requires less than evidence which would justify conviction. The
existence depends to a large degree upon the finding or opinion of the judge
conducting the examination. However, the findings of the judge should not
disregard the facts before him nor run counter to the clear dictates of reason.[49]

In light of the foregoing, the Court finds that the quantum of proof to establish the
existence of probable cause had been met. That a “considerable length of time”
attended the search warrant’s application from the crime’s commission does not, by
and of itself, negate the veracity of the applicant’s claims or the testimony of the
witness presented. As the CA correctly observed, the delay may be accounted for
by a witness’s fear of reprisal and natural reluctance to get involved in a criminal
case.[50] Ultimately, in determining the existence of probable cause, the facts and
circumstances must be personally examined by the judge in their totality, together
with a judicious recognition of the variable complications and sensibilities attending
a criminal case. To the Court’s mind, the supposed delay in the search warrant’s
application does not dilute the probable cause finding made herein. In fine, the
probable cause requirement has been sufficiently met.
The Court similarly concludes that there was compliance with the constitutional
requirement that there be a particular description of “the place to be searched and
the persons or things to be seized.”

“[A] description of a place to be searched is sufficient if the officer with the warrant
can, with reasonable effort, ascertain and identify the place intended and
distinguish it from other places in the community. Any designation or description
known to the locality that points out the place to the exclusion of all others, and on
inquiry leads the officers unerringly to it, satisfies the constitutional
requirement.”[51]

Search Warrant No. 09-14407 evidently complies with the foregoing standard since
it particularly describes the place to be searched, namely, the three (3) caves
located inside the Laud Compound in Purok 3, Barangay Ma-a, Davao City:

You are hereby commanded to make an immediate search at any time [of] the day
of the premises above describe[d] particularly the three (3) caves (as sketched)
inside the said Laud Compound, Purok 3, Brgy. Ma-a, Davao City and
forthwith seize and take possession of the remains of six (6) victims who were
killed and buried in the just said premises.

x x x x[52] (Emphases supplied)

For further guidance in its enforcement, the search warrant even made explicit
reference to the sketch[53] contained in the application. These, in the Court’s view,
are sufficient enough for the officers to, with reasonable effort, ascertain and
identify the place to be searched, which they in fact did.

The things to be seized were also particularly described, namely, the remains of six
(6) victims who were killed and buried in the aforesaid premises. Laud’s posturing
that human remains are not “personal property” and, hence, could not be the
subject of a search warrant deserves scant consideration. Section 3, Rule 126 of
the Rules of Court states:

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

(a) Subject of the offense;

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

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

supplied)

“Personal property” in the foregoing context actually refers to the thing’s mobility,
and not to its capacity to be owned or alienated by a particular person. Article 416
of the Civil Code,[54] which Laud himself cites,[55] states that in general, all things
which can be transported from place to place are deemed to be personal property.
Considering that human remains can generally be transported from place to place,
and considering further that they qualify under the phrase “subject of the offense”
given that they prove the crime’s corpus delicti,[56] it follows that they may be valid
subjects of a search warrant under the above-cited criminal procedure provision.

Neither does the Court agree with Laud’s contention that the term “human remains”
is too all-embracing so as to subvert the particular description requirement. As the
Court sees it, the description points to no other than the things that bear a direct
relation to the offense committed, i.e., of Murder. It is also perceived that the
description is already specific as the circumstances would ordinarily allow given that
the buried bodies would have naturally decomposed over time. These observations
on the description’s sufficient particularity square with the Court’s pronouncement
in Bache and Co., (Phil.), Inc. v. Judge Ruiz,[57] wherein it was held:

A search warrant may be said to particularly describe the things to be

seized when the description therein is as specific as the circumstances will
ordinarily allow (People v. Rubio, 57 Phil. 384 [1932]); or when the description
expresses a conclusion of fact — not of law — by which the warrant officer may be
guided in making the search and seizure (idem., dissent of Abad Santos, J.);
or when the things described are limited to those which bear direct relation
to the offense for which the warrant is being issued (Sec. 2, Rule 126,
Revised Rules of Court) x x x If the articles desired to be seized have any direct
relation to an offense committed, the applicant must necessarily have some
evidence, other than those articles, to prove the said offense; and the articles
subject of search and seizure should come in handy merely to strengthen such
evidence. (Emphases supplied)[58]

Consequently, the Court finds that the particular description requirement – both as
to the place to be searched and the things to be seized – had been complied with.

Finally, the Court finds no violation of the one-specific-offense rule under Section 4,
Rule 126 of the Rules of Court as above-cited which, to note, was intended to
prevent the issuance of scattershot warrants, or those which are issued for more
than one specific offense. The defective nature of scatter-shot warrants was
discussed in the case of People v. CA[59] as follows:

There is no question that the search warrant did not relate to a specific offense, in
violation of the doctrine announced in Stonehill v. Diokno and of Section 3 [now,
Section 4] of Rule 126 providing as follows:
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.
Significantly, the petitioner has not denied this defect in the search warrant and has
merely said that there was probable cause, omitting to continue that it was in
connection with one specific offense. He could not, of course, for the warrant was a
scatter-shot warrant that could refer, in Judge Dayrit’s own words, “to robbery,
theft, qualified theft or estafa.” On this score alone, the search warrant was totally
null and void and was correctly declared to be so by the very judge who had issued
it.[60]

In Columbia Pictures, Inc. v. CA,[61] the Court, however, settled that a search
warrant that covers several counts of a certain specific offense does not violate the
one-specific-offense rule, viz.:

That there were several counts of the offense of copyright infringement and the
search warrant uncovered several contraband items in the form of pirated video
tapes is not to be confused with the number of offenses charged. The search
warrant herein issued does not violate the one-specific-offense rule. (Emphasis
supplied)[62]

Hence, given that Search Warrant No. 09-14407 was issued only for one specific
offense – that is, of Murder, albeit for six (6) counts – it cannot be said that Section
4, Rule 126 of the Rules of Court had been violated.

That being said, the Court now resolves the last issue on forum shopping.

D. Forum Shopping.
______________________________________________

There is forum shopping when a litigant repetitively avails of several judicial

remedies in different courts, simultaneously or successively, all substantially
founded on the same transactions and the same essential facts and circumstances,
and all raising substantially the same issues either pending in or already resolved
adversely by some other court to increase his chances of obtaining a favorable
decision if not in one court, then in another.[63]

Forum shopping cannot be said to have been committed in this case considering the
various points of divergence attending the search warrant application before the
Manila-RTC and that before the Davao-RTC. For one, the witnesses presented in
each application were different. Likewise, the application filed in Manila was in
connection with Murder, while the one in Davao did not specify any crime. Finally,
and more importantly, the places to be searched were different – that in Manila
sought the search of the Laud Compound caves, while that in Davao was for a
particular area in the Laud Gold Cup Firing Range. There being no identity of facts
and circumstances between the two applications, the rule against forum shopping
was therefore not violated.

Thus, for all the above-discussed reasons, the Court affirms the CA Ruling which
upheld the validity of Search Warrant No. 09-14407.

WHEREFORE, the petition is DENIED. The Decision dated April 25, 2011 and the
Resolution dated October 17, 2011 of the Court of Appeals in CA-G.R. SP. No.
113017 are hereby AFFIRMED.
SO ORDERED.

SECOND DIVISION
[ G.R. No. 188794, September 02, 2015 ]
HONESTO OGAYON Y DIAZ, PETITIONER, VS. PEOPLE OF THE
PHILIPPINES, RESPONDENT.

DECISION

BRION, J.:

We resolve the petition for review on certiorari[1] assailing the Decision[2] dated
March 31, 2009, and the Resolution[3] dated July 10, 2009, of the Court of
Appeals (CA) in CA-G.R. CR No. 31154. The appealed decision affirmed the joint
judgment[4] dated September 5, 2007, of the Regional Trial Court (RTC), Branch 12,
Ligao City, Albay, which convicted petitioner Honesto Ogayon of violating Sections
11 and 12, Article II of Republic Act No. 9165.[5]

The Antecedent Facts

On December 1, 2003, two Informations were filed against Ogayon for the crimes
allegedly committed as follows:

I. Criminal Case No. 4738:

That at about 5:20 o'clock (sic) in the morning of October 2, 2003 at

Barangay Iraya, Municipality of Guinobatan, Province of Albay, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused
did then and there willfully, unlawfully and feloniously have in his possession,
custody and control four (4) pcs. of small aluminum foil, four (4) pcs. of
disposable lighter in different colors, one (1) blade trademark "Dorco," and
one (1) roll aluminum foil, instruments used or intended to be used for
smoking or consuming shabu, without authority of law, to the damage and
prejudice of the public interest and welfare.[6]

II. Criminal Case No. 4739:

That at about 5:20 o'clock (sic) in the morning of October 2, 2003 at

Barangay Iraya, Municipality of Guinobatan, Province of Albay, Philippines
 and within the jurisdiction of this Honorable Court, the above-named
accused, with deliberate intent to violate the law, and without authority of
law, did then and there willfully, unlawfully and feloniously have in his
possession, custody and control two (2) heat-sealed transparent plastic
sachets containing 0.040 gram of methamphetamine hydrochloride (shabu),
with full knowledge that in his possession and control is a dangerous drug, to
the damage and prejudice of the public interest and welfare.[7]

During his arraignment in Criminal Case Nos. 4738 and 4739 on January 21, 2004,
and March 17, 2004, respectively, Ogayon denied both charges and pleaded "not
guilty." The joint pre-trial held on May 5, 2004 yielded only one factual admission
on the identity of the accused.[8] A joint trial on the merits ensued.

The Prosecution Version

On October 2, 2003, at around 5:20 a.m., Police Chief Inspector Elmer Ferrera,
together with the other members of the Albay Provincial Police Office, proceeded to
Ogayon's house in Barangay Iraya, Guinobatan, Albay, to enforce Search Warrant
No. AEK 29-2003.[9] The warrant was for the seizure of shabu and drug
paraphernalia allegedly kept and concealed in the premises of Ogayon's house.
Barangay Tanod Jose Lagana (Tanod Lagana) and Kagawad Lauro Tampocao
assisted the police team in conducting the search.[10]

Upon reaching Ogayon's house, the police team noticed several persons inside
a nipa hut located nearby. Suspecting that a pot session was about to be held, the
police team restrained two of the five persons and immediately proceeded to
Ogayon's house. After introducing themselves as police officers, Senior Police
Officer Herminigildo Caritos (SPO4 Caritos) informed Ogayon that they had a
warrant to search his place. SPO4 Caritos handed a copy of the warrant to Ogayon,
who allowed the police team to conduct the search.[11]

Led by SPO4 Caritos, some members of the police team went to the comfort room
located about five meters away from Ogayon's house. When they searched the
area, they found an object (wrapped in a piece of paper with blue prints) that fell
from the wooden braces of the roof. Upon SPO4 Caritos' inspection, the paper
contained two (2) small, heat-sealed transparent plastic sachets that the police
team suspected to contain shabu. The search of the comfort room also uncovered
four (4) disposable lighters, one (1) knife measuring six inches long, used
aluminum foil, one (1) roll of aluminum foil, and a "Dorco" blade.[12] SPO4 Caritos
then placed his initials on the two (2) plastic sachets before joining the rest of the
police officers who were conducting a search in Ogayon's house. The police officers
who searched Ogayon's house found live ammunition for an M-16 rifle.

After conducting the search, the police team prepared a Receipt of Property
Seized.[13] The receipt was signed by the seizing officers, representatives from the
Department of Justice and the media, and two (2) barangay officials who were
present during the entire operation.[14]
The police team thereafter arrested Ogayon and the two (2) other persons who had
earlier been restrained, and brought them to Camp Simeon Ola for booking. The
seized items were likewise brought to the camp for laboratory examination. In his
Chemistry Report,[15] Police Superintendent Lorlie Arroyo (forensic chemist of the
Philippine National Police Regional Crime Laboratory) reported that the two (2)
plastic sachets seized from Ogayon's place tested positive for the presence
of methamphetamine hydrochloride or shabu.[16]

The Defense Version

The defense presented a different version of the events.

Testifying for himself, Ogayon disavowed any knowledge of the prohibited drugs
and claimed that he saw the seized items for the first time only when they were
being inventoried. His statements were corroborated by the testimony of his wife,
Zenaida Ogayon.

Ogayon asserted that prior to the search, he was asleep in his house. His wife
Zenaida woke him up because several policemen and barangay officials came to his
house. He claimed that the police team did not present any search warrant before
conducting the search, and it was only during trial that he saw a copy of the
warrant.

He recounted that the police officers, splitting into two groups, conducted a
simultaneous search of his house and the comfort room located nearby. He noticed
that SPO4 Caritos, who was part of the group that searched the comfort room,
came out and went to the Barangay Hall. Shortly after, SPO4 Caritos returned,
accompanied by Tanod Lagana. SPO4 Caritos again went inside the comfort room,
leaving Tanod Lagana waiting outside. SPO4 Caritos thereafter came out from the
comfort room and ran towards Ogayon's house while shouting "positive,
positive."[17]

The RTC Ruling

On September 5, 2007, the RTC rendered a joint judgment convicting Ogayon of

the two criminal charges against him. Relying on the presumption of regularity, the
RTC rejected Ogayon's frame-up defense. The dispositive portion of the joint
judgment reads:

WHEREFORE, under the above considerations, judgment is hereby rendered as

follows:

a. In Criminal Case No. 4738, accused, Honesto Ogayon y Diaz is found GUILTY
beyond reasonable doubt of Violation of Section 12, Art. II, Republic Act No.
9165, known as the "Comprehensive Dangerous Drugs Act of 2002," for his
unlawful possession of drug paraphernalia, namely: four (4) pcs. small
aluminum foil, one (1) roll aluminum foil, four (4) pcs. disposable lighters,
 and one (1) pc. blade; thereby sentencing him to suffer the indeterminate
penalty of imprisonment of six (6) months and one (1) day to two (2) years
and to pay a FINE often thousand pesos (P10,000.00);

b. In Criminal Case No. 4739, accused, Honesto Ogayon y Diaz is found GUILTY
beyond reasonable doubt of Violation of Section 11, Art. II, Republic Act No.
9165, known as the "Comprehensive Dangerous Drugs Act of 2002," for his
unlawful possession of two (2) pcs. small heat-sealed plastic sachets
containing methamphetamine hydrochloride or "shabu," with total net weight
of 0.0400 gram; thereby, sentencing him to suffer the indeterminate penalty
of imprisonment of twelve (12) years and one (1) day to fourteen (14) years
and to pay a FINE of three hundred thousand pesos (P300,000.00).[18]

Ogayon appealed to the CA. This time, he questioned the validity of the search
warrant, claiming it was improperly issued. He argued that the search warrant was
defective for lack of transcript showing that the issuing judge conducted an
examination of the applicant for search warrant and his witnesses.

The CA Ruling

In accordance with Section 5, Rule 126 of the Rules of Court, a judge must examine
under oath and in writing an applicant for search warrant and his witnesses.
Although the CA found no evidence in the records showing compliance with this
requirement, it nevertheless upheld the search warrant's validity due to
Ogayon's failure to make a timely objection against the warrant during the
trial.

That Ogayon objected to the prosecution's formal offer of exhibits, which included
the search warrant, was not sufficient for the CA. Ogayon merely claimed that the
chemistry report was not executed under oath, the items were not illegal per
se, and that he did not sign the Receipt of Property Seized since he was not present
when the seized items were confiscated. The CA noted that the objections were not
based on constitutional grounds, and for this reason, concluded that Ogayon is
deemed to have waived the right to question the legality of the search
warrant.[19]

Based on the search warrant's validity, the CA affirmed Ogayon's conviction for
possession of drugs and drug paraphernalia. Although the comfort room was
located outside Ogayon's house, the CA declared that he exercised exclusive control
over it and should rightly be held responsible for the prohibited drugs and
paraphernalia found there.

As with the RTC, the CA relied on the presumption of regularity of the police team's
operation and found Ogayon's claim of frame-up to be unsupported. The CA thus
ruled that the prosecution proved beyond reasonable doubt that Ogayon was liable
for the crimes charged.
 The Issues

In the present petition, Ogayon raises the following assignment of errors:

I.

The CA erred in finding that Ogayon had waived his right to question the
legality of the search warrant.

II.

Even granting without admitting that Ogayon had already waived his right
to question the legality of the search warrant, the search conducted was
still highly irregular, thereby rendering the seized articles as inadmissible
in evidence.

Ogayon primarily argues that there was a violation of his constitutional right to
be secure in his person, house, papers, and effects against unreasonable searches
and seizures. He denies waiving the right through his supposed failure to assail the
search warrant's validity during the trial. On the contrary, he claims to have
objected to the prosecution's formal offer of the search warrant.

Even assuming that he questioned the search warrant's validity only during appeal,
Ogayon contends that this should not be interpreted as a waiver of his right. Since
an appeal in a criminal case throws the whole case open for review, any objection
made on appeal, though not raised before the trial court, should still be considered.

Ogayon next argues that the search conducted by the police team on his premises,
pursuant to an already defective search warrant, was highly irregular. He and his
spouse were in their house when SPO4 Caritos allegedly discovered the shabu in
the comfort room located outside their house, so they were not able to witness the
search. Moreover, he claimed that there were other persons near the premises of
his house (and the comfort room) when the search was conducted. Hence, it could
not indubitably be concluded that the seized items were under his actual and
effective control and possession.

The Court's Ruling

The right against unreasonable searches and seizures is one of the fundamental
constitutional rights. Section 2, Article III of the Constitution, reads:

Section 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, [emphasis ours]

This right has been included in our Constitution since 1899 through the Malolos
Constitution[20] and has been incorporated in the various organic laws governing the
Philippines during the American colonization,[21] the 1935 Constitution,[22] and the
1973 Constitution.[23]

The protection afforded by the right is reinforced by its recognition as a

fundamental human right under the International Covenant on Civil and Political
Rights and the Universal Declaration of Human Rights,[24] to both of which the
Philippines is a signatory.[25] Both the Covenant and the Declaration recognize a
person's right against arbitrary or unlawful interference with one's privacy and
property.[26]

Given the significance of this right, the courts must be vigilant in preventing its
stealthy encroachment or gradual depreciation and ensure that the safeguards put
in place for its protection are observed.

Under Section 2, Article III of the Constitution, the existence of probable cause
for the issuance of a warrant is central to the right, and its existence largely
depends on the finding of the judge conducting the examination.[27] To substantiate
a finding of probable cause, the Rules of Court specifically require that -

Rule 126, Sec. 5. Examination of complainant; record. - The judge must, before
issuing the warrant, personally examine in the form of searching questions
and answers, in writing and under oath, the complainant and the witnesses
he may produce on facts personally known to them and attach to the
record their sworn statements, together with the affidavits submitted.
[emphasis ours]

Ogayon's appeal of his conviction essentially rests on his claim that the search
warrant was defective because "there was no transcript of stenographic notes of the
proceedings in which the issuing judge had allegedly propounded the required
searching questions and answers in order to determine the existence of probable
cause."[28] We find that the failure to attach to the records the depositions
of the complainant and his witnesses and/or the transcript of the judge's
examination, though contrary to the Rules, does not by itself nullify the
warrant. The requirement to attach is merely a procedural rule and not a
component of the right. Rules of procedure or statutory requirements, however
salutary they may be, cannot provide new constitutional requirements.[29]

Instead, what the Constitution requires is for the judge to conduct an

"examination under oath or affirmation of the complainant and the
witnesses he may produce," after which he determines the existence of
probable cause for the issuance of the warrant. The examination requirement
was originally a procedural rule found in Section 98 of General Order No. 58,[30] but
was elevated as part of the guarantee of the right under the 1935
Constitution.[31] The intent was to ensure that a warrant is issued not merely on the
basis of the affidavits of the complainant and his witnesses, but only after
examination by the judge of the complainant and his witnesses. As the same
examination requirement was adopted in the present Constitution, we declared that
affidavits of the complainant and his witnesses are insufficient to establish the
factual basis for probable cause.[32] Personal examination by the judge of the
applicant and his witnesses is indispensable, and the examination should
be probing and exhaustive, not merely routinary or a rehash of the affidavits.[33]

The Solicitor General argues that the lack of depositions and transcript does not
necessarily indicate that no examination was made by the judge who issued the
warrant in compliance with the constitutional requirement. True, since in People v.
Tee,[34] we declared that -

[T]he purpose of the Rules in requiring depositions to be taken is to satisfy the

examining magistrate as to the existence of probable cause. The Bill of Rights does
not make it an imperative necessity that depositions be attached to the records of
an application for a search warrant. Hence, said omission is not necessarily
fatal, for as long as there is evidence on the record showing what
testimony was presented.[35]

Ideally, compliance with the examination requirement is shown by the depositions

and the transcript. In their absence, however, a warrant may still be upheld if
there is evidence in the records that the requisite examination was made
and probable cause was based thereon. There must be, in the records,
particular facts and circumstances that were considered by the judge as sufficient
to make an independent evaluation of the existence of probable cause to justify the
issuance of the search warrant.[36]

The Solicitor General claims that, notwithstanding the absence of depositions and
transcripts, the records indicate an examination was conducted. In fact, a
statement in the search warrant itself attests to this:

Search Warrant

xxxx

GREETINGS:

It appearing to the satisfaction of the undersigned after examination under oath

of the applicant and his witnesses that there is probable cause to believe that
respondent, without authority of law, has under his possession and control the
following articles to wit:

—Methamphetamine Hydrochloride "Shabu" and paraphernalia

which are kept and concealed in the premises of his house particularly in the
kitchen and in the CR outside his house both encircled with a red ballpen, as
described in the sketch attached to the Application for Search Warrant, located at
Bgy. Iraya, Guinobatan, Albay.[37] (emphasis and underscore ours)

Generally, a judge's determination of probable cause for the issuance of a search

warrant is accorded great deference by a reviewing court, so long as there was
substantial basis for that determination.[38] "Substantial basis means that the
questions of the examining judge brought out such facts and circumstances as
would lead a reasonably discreet and prudent man to believe that an offense has
been committed, and the objects in connection with the offense sought to be seized
are in the place sought to be searched."[39]

Apart from the statement in the search warrant itself, we find nothing in
the records of this case indicating that the issuing judge personally and
thoroughly examined the applicant and his witnesses. The absence of
depositions and transcripts of the examination was already admitted; the
application for the search warrant and the affidavits, although acknowledged by
Ogayon himself,[40] could not be found in the records. Unlike in Tee, where the
testimony given during trial revealed that an extensive examination of the
applicant's witness was made by the judge issuing the warrant, the testimonies
given during Ogayon's trial made no reference to the application for the search
warrant. SPO4 Caritos testified that he was among those who conducted the
surveillance before the application for a search warrant was made. However, he
was not the one who applied for the warrant; in fact, he testified that he did not
know who applied for it.[41]

The records, therefore, bear no evidence from which we can infer that the
requisite examination was made, and from which the factual basis for
probable cause to issue the search warrant was derived. A search warrant
must conform strictly to the constitutional requirements for its issuance; otherwise,
it is void. Based on the lack of substantial evidence that the search warrant was
issued after the requisite examination of the complainant and his witnesses was
made, the Court declares Search Warrant No. AEK 29-2003 a nullity.

The nullity of the search warrant prevents the Court from considering
Ogayon's belated objections thereto.

The CA declared that Ogayon had waived the protection of his right against
unreasonable searches and seizures due to his failure to make a timely objection
against the search warrant's validity before the trial court. It based its ruling on the
procedural rule that any objections to the legality of the search warrant should be
made during the trial of the case. Section 14, Rule 126 of the Rules of Court
provides the manner to quash a search warrant or to suppress evidence obtained
thereby:

Section 14. Motion to quash a search warrant or to suppress evidence; where to

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

We find the CA's casual treatment of a fundamental right distressing. It prioritized

compliance with a procedural rule over compliance with the safeguards for a
constitutional right. Procedural rules can neither diminish nor modify substantial
rights;[42] their non-compliance should therefore not serve to validate a
warrant that was issued in disregard of the constitutional requirements. As
mentioned, the existence of probable cause determined after examination by the
judge of the complainant and his witnesses is central to the guarantee of Section 2,
Article III of the Constitution. The ends of justice are better served if the
supremacy of the constitutional right against unreasonable searches and seizures is
preserved over technical rules of procedure.

Moreover, the courts should indulge every reasonable presumption against

waiver of fundamental constitutional rights; we should not presume
acquiescence in the loss of fundamental rights.[43] In People v.
Decierdo,[44] the Court declared that "[wjhenever a protection given by the
Constitution is waived by the person entitled to that protection, the presumption is
always against the waiver." The relinquishment of a constitutional right has to
be laid out convincingly.

In this case, the only evidence that Ogayon waived his constitutional right was his
failure to make a timely motion during the trial to quash the warrant and to
suppress the presentation of the seized items as evidence. This failure alone, to our
mind, is not a sufficient indication that Ogayon clearly, categorically, knowingly,
and intelligently made a waiver.[45] He cannot reasonably be expected to know the
warrant's defect for lack of data in the records suggesting that defect existed. It
would thus be unfair to construe Ogayon's failure to object as a waiver of his
constitutional right. In People v. Bodoso,[46] the Court noted that "[i]n criminal
cases where life, liberty and property are all at stake... The standard of waiver
requires that it 'not only must be voluntary, but must be knowing, intelligent,
and done with sufficient awareness of the relevant circumstances and
likely consequences.'"

At this point, we note the purpose for the enactment of Section 14, Rule 126 of the
Rules of Court - a relatively new provision incorporated in A.M. No. 00-5-03-SC or
the Revised Rules of Criminal Procedure (effective December 1, 2000). The
provision was derived from the policy guidelines laid down by the Court in Malaloan
v. Court of Appeals[47] to resolve the main issue of where motions to quash search
warrants should be filed. In other words, the provision was "intended to resolve
what is perceived as conflicting decisions on where to file a motion to quash a
search warrant or to suppress evidence seized by virtue thereof... ,"[48] It was
certainly not intended to preclude belated objections against the search warrant's
validity, especially if the grounds therefor are not immediately apparent. Thus,
Malaloan instructs that "all grounds and objections then available, existent or
known shall be raised in the original or subsequent proceedings for the
quashal of the warrant, otherwise they shall be deemed waived," and that "a
motion to quash shall consequently be governed by the omnibus motion rule,
provided, however, that objections not available, existent or known during
the proceedings for the quashal of the warrant may be raised in the
hearing of the motion to suppress."

A closer reading of the cases where the Court supposedly brushed aside belated
objections would reveal that the objections were disregarded because they had
been cured or addressed based on the records.

In Demaisip v. Court of Appeals,[49] the accused asserted that the search warrant
was never produced in court, thus suggesting its absence. The Court, however,
noted that "there were supposed testimonies of its existence."

In People v. Tee,[50] the accused claimed that the issuing judge failed to
exhaustively examine the complainant and his witnesses, and that the
complainant's witness (a National Bureau of Intelligence operative) had no personal
knowledge of the facts comprising probable cause, but the Court brushed these
claims aside. It found that the witness' knowledge of the facts supporting probable
case was not based on hearsay as he himself assisted the accused in handling the
contraband, and that the issuing judge extensively questioned this witness.

In People v. Torres,[51] the accused assailed the validity of the search conducted
pursuant to a search warrant as it was supposedly made without the presence of at
least two witnesses, but the Court found otherwise, citing the testimonies taken
during the trial contradicting this claim. A similar objection was made by the
accused in People v. Nuñez[52], but the Court noted the testimony of the officer
conducting the search who stated that it was made in the presence of the accused
himself and two barangay officials.

The rulings in Malaloan v. Court of Appeals,[53] People v. Court of

Appeals,[54] and People v. Correa[55] are without significance to the present case. As
mentioned, Malaloan v. Court of Appeals involved the question of where motions to
quash search warrants should be filed, and the guidelines set therein was applied
in People v. Court of Appeals. People v. Correa, on the other hand, involved a
warrantless search of a moving vehicle.

We reiterate that the requirement to raise objections against search warrants

during trial is a procedural rule established by jurisprudence. Compliance or
noncompliance with this requirement cannot in any way diminish the constitutional
guarantee that a search warrant should be issued upon a finding of probable cause.
Ogayon's failure to make a timely objection cannot serve to cure the inherent
defect of the warrant. To uphold the validity of the void warrant would be to
disregard one of the most fundamental rights guaranteed in our Constitution.

In the light of the nullity of Search Warrant No. AEK 29-2003, the search
conducted on its authority is likewise null and void. Under the Constitution,
any evidence obtained in violation of a person's right against unreasonable
searches and seizures shall be inadmissible for any purpose in any
proceeding.[56] With the inadmissibility of the drugs seized from Ogayon's home,
there is no more evidence to support his conviction. Thus, we see no reason to
further discuss the other issues raised in this petition.

WHEREFORE, under these premises, the Decision dated March 31, 2009, and the
Resolution dated July 10, 2009, of the Court of Appeals in CA-G.R. CR No. 31154
are REVERSED and SET ASIDE. Accordingly, the judgment of conviction, as stated
in the joint judgment dated September 5, 2007, of the Regional Trial Court, Branch
12, Ligao City, Albay, in Criminal Case Nos. 4738 and 4739, is REVERSED and SET
ASIDE, and petitioner HONESTO OGAYON y DIAZ is ACQUITTED of the criminal
charges against him for violation of Republic Act No. 9165.

SO ORDERED.

SECOND DIVISION
[ G.R. No. 194445, March 12, 2012 ]
PEOPLE OF THE PHILIPPINES, PLAINTIFF, VS. ROGER
POSADAY URBANO AND EMILY POSADAY SARMIENTO,
ACCUSED.

DECISION

REYES, J.:

As we decide this appeal involving a couple who allegedly violated Republic Act No.
9165 (R.A. 9165), otherwise known as the Comprehensive Dangerous Drugs Act of
2002, we should bear in mind the words emanating from the pen of former Justice
Isagani A. Cruz:

We need only add that the active support of everyone is needed to bolster the
campaign of the government against the evil of drug addiction. The merchants of all
prohibited drugs, from the rich and powerful syndicates to the individual street
"pushers," must be hounded relentlessly and punished to the full extent of the law,
subject only to the inhibitions of the Bill of Rights.[1]
The Case
Accused-appellants Roger Posada (Roger) and Emily Posada (Emily) were convicted
by the Regional Trial Court (RTC), Branch 43, Virac, Catanduanes, in Criminal Case
No. 3490 for selling twelve (12) pieces of transparent sealed plastic sachet,
containing Methamphetamine Hydrochloride or shabu with a total weight of 0.4578
grams, in violation of Section 5, Article II of R.A. No. 9165.[2]

Roger was also convicted by the same RTC in Criminal Case No. 3489 for
possession of one piece of torn plastic sachet, containing residue of a crystalline
substance (allegedly shabu), a piece of small aluminum foil, a pair of small scissors,
and fifteen (15) pieces of used lighter - all of which are intended to be used for
smoking or introducing dangerous drugs into the body of a person, in violation of
Section 12, Article II of R.A. No. 9165.[3]

Aggrieved by the RTC Decision, the accused-appellants filed an appeal before the
Court of Appeals (CA) which, via a Decision4 dated June 17, 2010, affirmed the RTC
Decision as to the accused-appellants' conviction in Criminal Case No. 3490 but
acquitted Roger in Criminal Case No. 3489 on the ground of reasonable doubt.

Now, the accused-appellants ask this Court for a complete exoneration from the
offense charged in Criminal Case No. 3490 on the ground that the prosecution
failed to establish the chain of custody and integrity of the seized illegal items and
to prove their guilt beyond reasonable doubt.

Antecedent Facts

According to the evidence of the prosecution, P/CI Gil Francis Tria (P/CI Tria), the
Chief of Police of Virac Municipal Police Station and representative of the Philippine
Drug Enforcement Agency (PDEA), ordered surveillance on the activities of the
accused-appellants and a certain Johnjohn Urbano (Urbano).[5] As a result of the
said surveillance, POl Roldan Area (POl Area) was able to buy one sachet
of shabu from Emily for P250.00 on August 2, 2005.[6]

Consequently, after the August 2, 2005 test-buy yielded positive result, P/CI Tria
applied for a search warrant, which the Honorable Jaime E. Contreras
granted.[7] Thus, at noontime of August 3, 2005, P/CI Tria and his team proceeded
to Barangay Concepcion and coordinated with Punong Barangay Antonio Asuncion,
Jr. (Asuncion) in the operation against the accused-appellants.[8]

When the team of P/CI Tria reached the place of operation, they found Emily
standing in front of her house. PO1 Area, who was the poseur-buyer, called her and
when she came near him, he told her that he would buy shabu. PO1 Area then
handed to Emily P250.00, consisting of two pieces of P100.00 bill and one piece of
P50.00 bill. After receiving the money from POl Area, Emily immediately went to
her house and got a coin purse. When she returned at the scene of the operation,
Emily gave PO1 Area one sachet of shabu, which she got from the coin purse.
Subsequently, Roger appeared and handed to Emily 12 plastic sachets
of shabu which Emily placed inside the coin purse. At this point, PO1 Area identified
himself as a police officer while giving the signal to his team that the buy-bust
turned positive. He arrested Emily while Roger ran away and went inside their
house. PO1 Area informed Emily of her constitutional rights, but the latter failed to
utter any word.[9]

While PO1 Area was holding the arm of Emily, who still had in her hands the coin
purse where she got the sachet of shabu and the buy-bust money, P/CI Tria took
pictures of the incident using his cellphone while the official photographer was also
taking pictures. After the search, a coin purse containing sachets of shabu and a
bundle of money was found in Emily's possession.[10] PO1 Area then prepared a
Receipt for Property Seized (RPS).[11] Asuncion, Kagawad Eva Sarmiento
(Sarmiento) and a certain Robert Vargas (Vargas) witnessed the preparation of the
said receipt.[12]

Meanwhile, when Roger left Emily at the scene of the buy-bust operation, he went
inside his house and closed the door. Armed with the search warrant, SPO1
Salvador Aldave, Jr. (SPO1 Aldave) forced the door open. SPO1 Aldave was the first
person to enter the house, followed by the barangay officials and his fellow officers,
SPO1 Roger Masagca (SPO1 Masagca) and PO1 Ronnie Valeza (PO1 Valeza). The
search warrant was shown to Roger. In his presence and in the presence
of Kagawad Jena Arcilla (Arcilla), the raiding team recovered one piece of aluminum
foil, one plastic sachet containing residue of white crystalline substance, and one
small pair of green scissors beside the bed inside a room, and 15 pieces of used
lighters from an improvised altar on top of a wooden table. A search of Roger's
pocket yielded two pieces of P50.00 bill and one piece of PI 00.00 bill. SPO1 Aldave
as the seizing officer prepared and signed an RPS. Asuncion, Arcilla and Barangay
Tanod Juan Gonzales (Gonzales) witnessed the preparation and signing of the said
RPS. Roger, however, refused to sign the same. The couple was then brought to the
police station.[13]

At the Virac Police Station, a body search on Emily resulted in the seizure of bills of
different denominations, totaling P2,720.00. Some of these bills were identified as
those bills photocopied and submitted to the Provincial Prosecution Office.[14]

On August 4, 2005, immediately after the operation and the execution of the search
warrant, P/CI Tria requested for a laboratory examination of a piece of small size
heat-sealed transparent plastic sachet, containing white crystalline substance
marked with initial "R"; 12 pieces of small size heat-sealed transparent plastic
sachets, containing white crystalline substance with sub-markings "R-1l" to "R-12";
and one small size crumpled aluminum foil and small size plastic sachet. The
request of P/CI Tria for laboratory examination dated August 4, 2005 was received
by a certain PO2 Abanio [Abano] and Police Inspector Sta. Cruz, J. (P/Insp. Sta.
Cruz). The sachet with the initial "R" was the sachet of shabu sold to PO1 Area
during the buy bust operation while the sachets of shabu marked as "R-l" to "R-12"
were the sachets of shabu which Roger handed to Emily and which were found in
the possession of Emily after PO1 Area identified himself as a police officer.[15]

Subsequently, witness Police Senior Inspector Josephine Macura Clemen (PSI

Clemen), the forensic expert, received personally from the receiving clerk (PO2
Abanio) the above-mentioned marked pieces of evidence. She then immediately
conducted laboratory examination, yielding a result that the 12 pieces of plastic
sachets (with markings "R-1" to "R-12"), the one heat-sealed transparent plastic
sachet with marking "R", the one aluminum foil strip, and a small size plastic sachet
contained methamphetamine hydrochloride.[16]

The accused-appellants were subsequently charged in two separate

Informations,[17] both dated August 5, 2005, with violation of Sections 5, 11 and
12, Article II of R.A. No. 9165, which were respectively docketed as Criminal Case
No. 3490 and Criminal Case No. 3489. The Informations state as follows:

Criminal Case No. 3490

The undersigned Provincial Prosecutor accuses Roger Posada y Urbano and Emily
Posada y Sarmiento of Violation of R.A. 9165 defined and penalized under Section 5
of said Law, committed as follows:

That on or about the 3rd day of August 2005 at noontime along Imelda Blvd. in
barangay Concepcion, municipality (sic) of Virac, [PJrovince of Catanduanes,
Philippines and within the jurisdiction of the Honorable Court, the above-named
accused without the authority of law, conspiring, confederating and
helping one another, did then and there willfully, unlawfully, and
feloniously sell, deliver and give away to another 12 pieces of transparent
sealed plastic sachet containing Methamphetamine Hydrochloride[,] locally
known as shabu[,] with a total weight of 0.9 gram [-] a prohibited drug[,] and
several marked money bills.[18] [Emphasis supplied]

Criminal Case No. 3489

The undersigned Provincial Prosecutor accuses Roger Posada y Urbano of Violation
of R.A. 9165 defined and penalized under Section 12 of said law, committed as
follows:

That on or about the 3rd day of August 2005 in the afternoon in Barangay
Concepcion, municipality (sic) of Virac, province (sic) of Catanduanes, Philippines,
within the jurisdiction of the Honorable Court, the said accused without the
authority of law did then and there willfully, unlawfully and feloniously possess and
in control of one (1) piece of teared plastic sachet containing residue of a crystalline
substancef,] locally known as shabu, (1) piece small aluminum foil, (1) piece small
scissors (sic) and 15 pieces of used lighter[,] which paraphernalia are (sic) fit or
intended for smoking or introducing any dangerous drug into the body of a
person.[19]

However, the Information for Criminal Case No. 3490 was later amended,[20] to
reflect a change in the weight of the seized drugs from 0.9 gram to 0.4578 gram.

Meanwhile, on the part of the accused-appellants, they simply denied the

accusations against them. Roger claimed that on April 3, 2005 (which was even a
misleading date since the event happened on August 3, 2005), at around 12 noon,
he was putting his three year-old child to sleep inside their house, while his wife
Emily was washing their clothes at his parents' house. He peeped through the
window jalousies when he heard his wife calling out his name. He saw a policeman,
later identified as PO1 Area, pulling Emily towards the road. Roger claimed that PO1
Valeza later poked a gun at him, preventing him to move from the window.
Thereafter, the door of Roger's house was forced open, allowing SPO1 Aldave, SPO1
Masagca, PO1 Valeza and Barangay Tanod Vic Vargas (Vargas) to enter his house.
Inside the house, PO1 Valeza allegedly took down the jackets hanging on the wall
and searched them; SPO1 Aldave took pictures while Vargas and SPO1 Masagca
went inside the room and searched the cabinets where toys were kept. Roger
further claims that nothing was found in his house. After the search, Roger was
brought to the patrol car where his wife Emily was taken.[21]

Meanwhile, Emily testified that on that fateful day of August 3, 2005, she was
washing clothes at her mother-in-law's house when a man, whom she could not
identify, approached her and asked her if she was Emily Posada. She alleged that
the man immediately held her hands, shouting "Police! Police!" after which police
officers Tria and Aldave arrived. Her picture was taken. Subsequently, she was
brought to the patrol car where her husband Roger later joined her. Both Roger and
Emily were then transported to the police station. Roger was placed behind bars
while Emily was placed at the detention cell of the Bureau of Jail Management and
Penology (BJMP).[22]
The couple claimed that the police officers did not inform them why they were
brought to the police station and subsequently detained. Emily
denied that a buy-bust operation was conducted against her, but she was aware of
the search conducted in their house because her husband informed her at the police
station. Meanwhile, Roger also denied that the police officers presented to him a
search warrant. Likewise, both alleged that the money taken from Emily's wallet
were the proceeds of the sale of their chickens, which Roger gave to Emily. The
said money amounted to more or less P3,000.00.[23]

Issues

Considering that the accused-appellants did not file a supplemental brief and that
appellee People of the Philippines adopted its brief before the CA, we now rule on
the matter based on the issues[24] which the accused-appellants raised in their brief
before the CA, to wit:

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANTS

NOTWITHSTANDING THE PROSECUTION'S FAILURE TO ESTABLISH THE CHAIN OF
CUSTODY AND INTEGRITY OF THE ALLEGED SEIZED ILLEGAL ITEMS.

II

THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELANTS

DESPITE THE PROSECUTION'S FAILURE TO PROVE THEIR GUILT BEYOND
REASONABLE DOUBT.[25]

Our Ruling

While we give due credence to the trial court's evaluation of the credibility of
witnesses absent any showing that the elements of the crime have been
overlooked, misapprehended, or misapplied, we will take pains in taking a second
hard look on the issues the accused-appellants raised, considering they are
husband and wife whose imprisonment will greatly affect the children they will
leave behind once they are declared guilty beyond reasonable doubt.

Now, we are going to discuss the case following the issues the accused-appellants
raised.
The prosecution has established the chain
of custody and integrity of the seized illegal
items.

The accused-appellants alleged that the prosecution failed to establish the chain of
custody and integrity of the seized illegal items because:

(1) The apprehending officers allegedly failed to submit the seized illegal items to
the PNP Crime Laboratory Service for a qualitative and quantitative examination
within the mandatory 24-hour period from confiscation; and

(2) There is an alleged discrepancy as to the number of plastic sachets recovered

from the accused-appellants and those submitted to forensic chemist PSI Clemen.

On the first factual issue, we find that the records of the case and the testimonies
of witnesses belie the accused-appellants' contention.

Based on the records, the buy-bust operation, the arrest of the accused-appellants
and the confiscation of the illegal items happened at around 12 noon of August 3,
2005.[26] PO1 Area received from Emily one sachet of shabu and after PO1 Area
introduced himself and arrested Emily, 12 more sachets of shabu were found in the
possession of Emily. The said 12 sachets of shabu were inside a coin purse, with a
bundle of money.[27] PO1 Area prepared on the same day an RPS[28] in the presence
of Asuncion, Kagawad Sarmiento and Vargas.[29] On August 4, 2005, P/CI Tria
requested for a laboratory examination of a piece of small size heat-sealed
transparent plastic sachet, containing white crystalline substance marked with
initial "R"; 12 pieces of small size heat-sealed transparent plastic sachets,
containing white crystalline substance with sub-markings "R-1" to "R-12"; and one
small size crumpled aluminum foil and small size plastic sachet. The request of P/CI
Tria for laboratory examination dated August 4, 2005 was received by PO2 Abanio
and P/Insp. Sta. Cruz on the same date.[30]

The accused-appellants wanted us to believe that a day had lapsed before P/CI Tria
submitted the illegal drugs to PNP Crime Laboratory Service, contrary to the
mandate of Section 21 of R.A. No. 9165. They even cited the testimony of P/CI Tria
where the latter allegedly admitted submitting the subject seized items on August
4, 2005. However, a close look at the testimony of P/CI Tria[31] will reveal that
nothing in it would show that he submitted the alleged illegal drugs beyond the 24-
hour reglementary period. In fact, even the Laboratory Examination Request dated
August 4, 2005 does not indicate violation of Section 21 of R.A. No.
9165.[32] Clearly, from the foregoing, the accused-appellants failed to adduce any
evidence to prove their contention. The age-old but familiar rule that he who
alleges must prove his allegation applies[33] in this case. The accused-appellants'
failure to show evidence that the police officers did not comply with Section 21 of
R.A. No. 9165 gives us no other recourse but to respect the findings of trial court
and of the CA.

Furthermore, the CA is correct in giving credence to the testimonies of the police

officers as regards the timely submission of the subject illegal drugs since they are
presumed to have regularly performed their duties, unless there is evidence
suggesting ill-motive on the part of the police officers.[34] In this case, the accused-
appellants failed to contradict the presumption. What goes against the accused-
appellants is the fact that they have not offered any evidence of ill-motive against
the police officers. Emily even admitted that she did not know PO1 Area, the
poseur-buyer.[35] Considering that there was no existing relationship between the
police officers and the accused-appellants, the former could not be accused of
improper motive to falsely testify against the accused-appellants. In People v.
Dumangay,[36] we upheld the findings of the lower court on the presumption of
regularity in the performance of official duties because there was no proof of ill-
motive. Therein, the accused-appellant's self-serving and uncorroborated defenses
did not prevail over the trial court's findings on the credibility of witnesses. The
same may be said in the present case.

Finding the accused-appellants' arguments without a leg to stand on, the

apprehending police officers are presumed to have timely submitted the seized
illegal items to the PNP Crime Laboratory Service for a qualitative and quantitative
examination within the mandatory 24-hour period from confiscation.

On the second factual issue, we find the accused-appellants' claim not supported
by evidence.

The accused-appellants alleged that the integrity of the seized illegal items was
compromised and their evidentiary value diminished because of the alleged
discrepancy between the number of plastic sachets recovered from the accused-
appellants and those submitted to forensic chemist PSI Clemen. They insisted that
based on the Informations in Criminal Case Nos. 3489 and 3490 and the
testimonies of witnesses Asuncion[37] and SPO1 Aldave,[38] only fourteen (14) plastic
sachets were recovered from the accused-appellants, while PSI Clemen allegedly
testified that a total of 15 sachets were submitted for examination.[39]

However, a review of the defense-quoted testimony of PSI Clemen would show that
she received one piece of small size heat-sealed transparent plastic sachet with
marking "R",[40] 12 pieces small size heat-sealed marked as "R-l" to "R-12"[41] and
one small size crumpled aluminum foil and small size plastic sachet[42] — totaling to
15 items. PSI Clemen's testimony tallies with the Laboratory Examination Request
(Exhibit "J") of P/CI Tria. We reproduce Exhibit "J" below, to wit:

Republic of the Philippines

NATIONAL POLICE COMMISSION
PHILIPPINE NATIONAL POLICE
Virac Municipal Police Station
Virac, Catanduanes

MEMORANDUM:

FOR : The Chief

PNP Crime Laboratory Service Camp Gen Simeon A Ola Legaspi City

SUBJECT : Laboratory Examination request for

DATE : 04 August 2005

--------------------------------------------------------------------------------
1. Request conduct laboratory examination on the accompanying specimen to
determine whether the white crystalline granules inside Thirteen (13) pcs small size
transparent heat seald (sic) plastic sachets are Methamphetamine Hydrochloride or
SHABU and also whether the one (1) pc small size crumpled aluminum foil and
small size transparent plastic sachet contains residue or granules of
Methamphetamine Hydrochloride or Shabu.

EXHIBIT QUANTITY/ DESCRIPTION

"A" One (1) pc small size heat sealed transparent plastic sachet sachet (sic) containing white
crystalline substance with marking initial "R" the initial of PO1 ROLDAN AREA who acted
as posuer (sic) buyer during the drug buy bust operation.

"B" Twelve (12) pcs small size heat sealed transparent plastic sachet containing white
crystalline substance with markings R1-R12 found/confiscated from the suspect during
drug buy bust operation.

"C" One (1) small size crumpled aluminum foil and small size plastic sachet confiscated/found
in the possession of suspect during the execution of search warrant number 37 issued by
Hon[.] Judge Jaime E[.] Contreras of RTC Branch 43.
SUSPECT/S Roger Posada y Urbano

Emily Posada y Sarmiento

John-John Bryan Urbano y Zafe

COMPLAINANT Officer-in-Charge

Virac MPS

FACTS OF THE CASE: Evidence submitted for laboratory examination was bought
and others were confiscated by the PNP team of Virac during Buy Bust (sic)
operation and the effect/execution of search warrant number 37 on August 3, 2005
in [BJarangay Concepcion Virac, Catanduanes.

2. Request acknowledge reciept (sic) and furnish this office Laboratory examination
result as soon as possible for subsequent submission/filing same in court as
supporting documents to this case.

GIL FRANCIS G[.] TRIA

Po1 Chief Inspector
Officer-in-Charge[43]

Based on the cited exhibit, we find that in Exhibit "A" we have the first item,
marked with "R". Under Exhibit "B", we have the next 12 items marked as "R-l" to
"R-12". Under Exhibit "C", we have the remaining two items submitted to the crime
laboratory, namely one small size crumpled aluminum foil and small size plastic
sachet confiscated and found in the possession of Roger. All these items total to 15
items - consistent with the testimony of PSI Clemen. Thus, evidence shows no
discrepancy as to the number of plastic sachets recovered from the accused-
appellants and those submitted to forensic chemist PSI Clemen.

Finally, we say that the prosecution has established the chain of custody and
integrity of the seized illegal items.

After PO1 Area arrested Emily and confiscated the 13 sachets of shabu (one bought
by PO1 Area from Emily and 12 found in Emily's coin purse after she received the
same from her husband Roger),[44] P/CI Tria took pictures of the incident using his
cellphone while the official photographer was also taking pictures.[45] Then PO1 Area
prepared an RPS,[46] which Asuncion, Sarmiento and Vargas
witnessed.[47] Meanwhile, SPO1 Aldave, seizing officer went inside the house of the
accused-appellants, prepared and signed an RPS after the raiding team found a
piece of aluminum foil, one plastic sachet containing residue of white crystalline
substance, one small pair of green scissors beside the bed inside a room, 15 pieces
of used lighters, and two pieces of P50.00 bill and one piece of P100.00 bill.
Asuncion, Arcilla and Gonzales witnessed the preparation and signing of the said
RPS.[48] Thereafter, on August 4, 2005, P/CI Tria requested for a laboratory
examination of a piece of small size heat-sealed transparent plastic sachet,
containing white crystalline substance marked with initial "R"; 12 pieces of small
size heat sealed transparent plastic sachets, containing white crystalline substance
with sub-markings "R-l" to "R-12"; and one small size crumpled aluminum foil and
small size plastic sachet. The request of P/CI Tria for laboratory examination dated
August 4, 2005 was received by a certain PO2 Abanio and P/Insp. Sta.
Cruz.[49] Subsequently, witness PSI Clemen, the forensic expert, received personally
from PO2 Abanio the above-mentioned marked pieces of evidence. She then
immediately conducted a laboratory examination, yielding a result that the 12
pieces of plastic sachets (with markings "R-l" to "R-12"), the one heat-sealed
transparent plastic sachet with marking "R" and the one aluminum foil strip
contained methamphetamine hydrochloride.[50] In open court, the above-mentioned
pieces of evidence were identified and marked.[51]

From the foregoing, the prosecution, without an iota of doubt, has established the
chain of custody and integrity of the seized illegal items. The Supreme Court
in People v. Sanchez,[52] clearly discussed how chain of custody should be proven,
to wit:

As a method of authenticating evidence, the chain of custody rule requires that the
admission of an exhibit be preceded by evidence sufficient to support a finding that
the matter in question is what the proponent claims it to be. It would include
testimony about every link in the chain, from the moment the item was
picked up to the time it is offered into evidence, in such a way that every
person who touched the exhibit would describe how and from whom it was
received, where it was and what happened to it while in the witness'
possession, the condition in which it was received and the condition in
which it was delivered to the next link in the chain. These witnesses would
then describe the precautions taken to ensure that there had been no
change in the condition of the item and no opportunity for someone not in
the chain to have possession of the same.[53]

In the instant case, the prosecution was able to present, not only the corpus delicti,
but the testimonies of the people involved in each link in the chain of custody.

The prosecution failed to prove beyond reasonable doubt that the accused-
appellants sold 12 sachets of shabu, but it has proven the accused-
appellants' guilt beyond reasonable doubt of possession of the same
number of shabu in violation of Section 11, Article II of R.A. No. 9165.

Before we proceed in discussing the guilt of the couple, we must first take into
account a discrepancy in the Information for Criminal Case No. 3490. In the said
information, the accused-appellants were charged for selling 12 pieces of
transparent sealed plastic sachet of shabu. However, based on the evidence which
the prosecution adduced, Emily sold to PO1 Area one sachet of shabu, which was
worth P250.00. Then, after she handed the one sachet of shabu to the poseur-
buyer, Emily received additional 12 sachets of shabu from her husband Roger and
when PO1 Area informed the couple of the buy-bust, Emily had in her possession
the 12 sachets of shabu.[54] Subsequently, the confiscated sachets of shabu were
marked. The one sold to PO1 Area was marked with "R", while the 12 sachets
of shabu Roger handed to Emily before their arrest were marked as "R-l" to "R-
12".[55]

The unfortunate fact of this case is that rather than separately charging Emily for
the sale of the one sachet of shabu and charging both Emily and Roger for
possession of the 12 sachets of shabu, the public prosecutor lumped the charges
together to sale of 12 sachets of shabu. This is wrong. The Information is defective
for charging the accused-appellants of selling 12 sachets of shabu when, in fact,
they should have been charged of selling one sachet of shabu and possessing 12
sachets of shabu. From the evidence adduced, Emily and Roger never sold the 12
sachets of shabu. They possessed them. Thus, they should have not been convicted
for selling the 12 sachets of shabu. However, this was exactly what was done both
by the trial court and the CA. Without basis in fact, they convicted the couple for
selling the 12 sachets of shabu.

Indeed, it must be pointed out that the prosecution filed a defective Information.
An Information is fatally defective when it is clear that it does
not really charge an offense[56] or when an essential element of the crime has not
been sufficiently alleged.[57] In the instant case, while the prosecution was able to
allege the identity of the buyer and the seller, it failed to particularly allege or
identify in the Information the subject matter of the sale or the corpus delicti. We
must remember that one of the essential elements to convict a person of sale of
prohibited drugs is to identify with certainty the corpus delicti. Here, the
prosecution took the liberty to lump together two sets of corpora delicti when it
should have separated the two in two different informations. To allow the
prosecution to do this is to deprive the accused-appellants of their right to be
informed, not only of the nature of the offense being charged, but of the essential
element of the offense charged; and in this case, the very corpus delicti of the
crime.
Furthermore, when ambiguity exists in the complaint or information, the court has
no other recourse but to resolve the ambiguity in favor of the accused.[58] Here,
since there exists ambiguity as to the identity of corpus delicti, an essential element
of the offense charged, it follows that such ambiguity must be resolved in favor of
the accused-appellants. Thus, from the foregoing discussion, we have no other
choice but to acquit the accused-appellants of sale of 12 sachets of shabu.

Truly, both the trial court and the CA were wrong in convicting the couple for selling
12 sachets of shabu because the prosecution failed to show that the husband and
wife had indeed sold the 12 sachets of shabu. Section 5, Article II of R.A. 9165
provides:

SEC. 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and

Transportation of Dangerous Drugs and/or Controlled Precursors and Essential
Chemicals. - The penalty of life imprisonment to death and a fine ranging from Five
hundred thousand pesos ([P]500,000.00) to Ten million pesos ([P] 10,000,000.00)
shall be imposed upon any person, who, unless authorized by law, shall sell, trade,
administer, dispense, deliver, give away to another, distribute, dispatch in transit or
transport any dangerous drug, including any and all species of opium poppy
regardless of the quantity and purity involved, or shall act as a broker in any of
such transactions.

More, jurisprudence holds that the prosecution for illegal sale of dangerous drugs
can only be successful when the following elements are established, namely:

(1) the identity of the buyer and the seller, the object and consideration of the sale;
and

(2) the delivery of the thing sold and the payment therefore.[59]

To our minds, while there was indeed a transaction between Emily and POl Area,
the prosecution failed to show that the subject matter of the sale to POl Area was
the 12 sachets of shabu. Based on the testimony of POl Area, the 12 sachets
of shabu were the sachets of shabu which Roger handed to his wife Emily and were
not sold, but which PO1 Area found in her possession after the latter identified
himself as a police officer.

In People v. Paloma,[60] we acquitted the accused for the prosecution's failure to

prove the crime of illegal sale of drugs, and we have set the standard in proving the
same, to wit:
Under the "objective" test set by the Court in People v. Doria, the prosecution must
clearly and adequately show the details of the purported sale, namely, the initial
contact between the poseur-buyer and the pusher, the offer to purchase, the
promise or payment of the consideration, and, finally, the accused's delivery of the
illegal drug to the buyer, whether the latter be the informant alone or the police
officer. This proof is essential to ensure that law-abiding citizens are not unlawfully
induced to commit the offense.[61]

In the instant case, PO1 Area's testimony showed no evidence that the transaction
as to the sale of the 12 sachets of shabu ever happened. Rather, PO1 Area
adequately testified on the fact that accused-appellant Roger handed the 12
sachets of shabu to Emily who kept them in a coin purse. And after PO1 Area
identified himself as a police operative, he found the 12 sachets of shabu in Emily's
possession.[62] From the foregoing, while the prosecution was able to prove the sale
of one sachet of shabu, it is patently clear that it never established with moral
certainty all the elements of illegal sale of the 12 sachets of shabu. And failure to
show that indeed there was sale means failure to prove the guilt of the accused for
illegal sale of drugs, because what matters in the prosecution for illegal sale of
dangerous drugs is to show proof that the sale actually happened, coupled with the
presentation in court of corpus delicti.[63] Here, the prosecution failed to prove the
existence of the sale of the 12 sachets of shabu and also to prove that the 12
sachets of shabu presented in court were truly the subject matter of the sale
between the accused-appellants and PO1 Area.

Notwithstanding the above-discussion, we convict both Roger and Emily of illegal

possession of prohibited drugs despite the fact that they were charged for the sale
of illegal drugs, because possession is necessarily included in sale of illegal drugs.

Section 4, Rule 120 of the Rules of Court provides:

Sec. 4. Judgment in case of variance between allegation and proof. - When there is
variance between the offense charged in the complaint or information and that
proved, and the offense as charged is included in or necessarily includes the offense
proved, the accused shall be convicted of the offense proved which is included in
the offense charged, or of the offense charged which is included in the offense
proved.

Since sale of dangerous drugs necessarily includes possession of the same, the
accused-appellants should be convicted of possession. We have consistently ruled
that possession of prohibited or dangerous drugs is absorbed in the sale
thereof.[64] Then Associate Justice Artemio Panganiban logically and clearly
explained the rationale behind this ruling, to wit:
The prevailing doctrine is that possession of marijuana is absorbed in the sale
thereof, except where the seller is further apprehended in possession of another
quantity of the prohibited drugs not covered by or included in the sale and which
are probably intended for some future dealings or use by the seller.

Possession is a necessary element in a prosecution for illegal sale of prohibited

drugs. It is indispensable that the prohibited drug subject of the sale be identified
and presented in court. That the corpus delicti of illegal sale could not be
established without a showing that the accused possessed, sold and delivered a
prohibited drug clearly indicates that possession is an element of the former. The
same rule is applicable in cases of delivery of prohibited drugs and giving them
away to another.[65 ](Citations omitted)

For prosecution of illegal possession of dangerous drugs to prosper, the following

essential elements must be proven, namely: "(1) the accused is in possession of an
item or object that is identified to be a prohibited drug; (2) such possession is not
authorized by law; and (3) the accused freely and consciously possess the said
drug."[66]

All these elements are obtaining and duly established in this case and we will
discuss them thoroughly below, since we are not ready to altogether exonerate the
couple.

On Emily's Liability

To our minds, the testimony of PO1 Area is sufficient to establish concurrence of all
the elements necessary to convict Emily of violating Section 11, Article II of R.A.
No. 9165. PO1 Area vividly narrated the
details of the buy-bust operation. He recounted how on August 3, 2005 at around
12 noon, he acted as the poseur-buyer of shabu. He approached Emily, who was
then standing in front of their house, and told her that he would like to buy shabu,
and then gave her the P250.00. Emily then returned to her house and got a coin
purse. Upon returning, Emily handed to POl Area a piece of sachet
containing shabu. After receiving the sachet of shabu, POl Area saw Roger hand the
12 sachets of shabu to Emily who kept them in a coin purse. After paying for and
receiving the sachet of shabu from Emily, POl Area arrested the latter and found in
her possession the 12 sachets of shabu.[67] From the foregoing, it is patently clear
that the prosecution established with moral certainty all the elements of illegal
possession of shabu, that is: POl Area found in Emily's physical and actual
possession the 12 sachets of shabu; such possession of the 12 sachets
of shabu was not authorized; and since Emily put the 12 sachets of shabu in the
purse after receiving them from her husband, she possessed the same freely and
consciously.

Furthermore, POl Area's testimony was corroborated by the testimonies of the

following: (a) Barangay Kagawad Sarmiento who witnessed how POl Area caught
Emily doing the illegal act; (b) Barangay Captain Asuncion, Jr. who testified that he
was with the raiding team when the latter conducted the buy-bust operation and
that he witnessed how money changed hands; (c) P/CI Tria who witnessed the buy-
bust operation and was one of the arresting officers; (d) SPO1 Aldave who executed
the search warrant; and (e) Barangay Kagawad Arcilla who also accompanied the
raiding team in the search of the accused-appellants' house. All these witnesses
completed all the angles of the buy-bust operation and the search on Emily's
person up to the finding that she possessed the 12 sachets of shabu. Indeed,
considering all of the above-findings of facts, we cannot have other conclusion but
to find Emily guilty beyond reasonable doubt for possession of prohibited drugs.

Indeed, every accused deserves a second look before conviction. This is the
essence of the constitutional presumption of innocence. In the present case, we did
not only take a second look at the facts and laws of this case because the accused-
appellants are both parents. We take a third, a fourth up to a seventh look to
ensure that no child will be left unattended because his parents were imprisoned
based on false accusations. Thus, after reviewing this case, the bare truth is Emily
was found in possession of 12 sachets of shabu on August 3, 2005.

On Roger's Liability

As to Roger, can we also convict him of possession of the same 12 sachets

of shabu considering that same had been found in the possession of his wife Emily?

We resolve in the affirmative.

In United States v. Juan,[68] we have clarified the meaning of the words "having
possession of. We said that the said phrase included constructive possession, that
is, "the relation between the owner of the drug and the drug itself when the owner
is not in actual physical possession, but when it is still under his control and
management and subject to his disposition."[69] In other words, in that case, we
recognized the fact that a person remains to be in possession of the prohibited
drugs although he may not have or may have lost physical possession of the same.

To elucidate, we must go back to the circumstances surrounding the Juan case. A

Chinaman named Lee See arrived at the Bay of Calbayog, Samar through the
steamer Ton-Yek. Upon disembarking, he went to the house of therein appellant
Chan Guy Juan, who was living in the town of Calbayog. Lee See and Chan Guy
Juan had a lengthy conversation. Chan Guy Juan then hired a certain Isidro
Cabinico (Cabinico) to go alongside of the steamer with his baroto, to carry and
deliver to him a sack which appellant Chan Guy Juan alleged was sugar. Cabinico
went to Lee See to get the said sack. However, on his way to the house of Chan
Guy Juan, Cabinico was arrested by the local authorities. Found in his possessions
were a small amount of sugar and 28 cans of opium. The opium was confiscated
and separate criminal charges were instituted against the two Chinamen and
Cabinico. After a thorough investigation, the provincial fiscal dismissed the case
against Cabinico because he had no knowledge of the content of the sack, while the
two Chinamen were eventually convicted. Chan Guy Juan appealed his conviction
arguing that he did not have actual physical possession or control of the 28 cans of
opium. But we held that both Chinese had constructive possession of the opium and
that they were both guilty as principals.[70]

Our ruling in Juan applies to the present case. Admittedly, the 12 sachets
of shabu were found in the possession of Emily. But POl Area saw Roger hand the
same 12 sachets of shabu to Emily. While Roger had lost physical possession of the
said 12 sachets of shabu, he had constructive possession of the same because they
remain to be under his control and management. In the Juan case, Lee See gave
the physical possession of the opium to Cabinico while Chan Guy Juan had not yet
received the same opium from Lee See, but both were held guilty of illegal
possession of opium. Thus, we can liken the instant case to that of Juan because
while Roger had lost physical possession of the 12 sachets of shabu to Emily, he
maintained constructive possession of the same.

Convicting both Emily and Roger of possession of illegal drugs deprives their
children of parents. But if we have to take care of our children and the family where
each of us belongs, we are obligated to put in jail all those, including fathers and
mothers, who peddle illegal drugs.

Finally, we cannot let this case pass us by without emphasizing the need for the
public prosecutor to properly evaluate all the pieces of evidence and file the proper
information to serve the ends of justice. The public prosecutor must exert all efforts
so as not to deny the People a remedy against those who sell prohibited drugs to
the detriment of the community and its children. Many drug cases are dismissed
because of the prosecutor's sloppy work and failure to file airtight cases. If only the
prosecution properly files the Information and prosecutes the same with precision,
guilty drug pushers would be punished to the extent allowed under the law, as in
this case.

WHEREFORE, the Decision of the Court of Appeals dated June 17, 2010
is MODIFIED. Accused-appellants ROGER POSADA and EMILY POSADA ARE
FOUND GUILTY OF ILLEGAL POSSESSION OF TWELVE (12) SACHETS OF
METHAMPETAMINE HYDROCHOLORIDE OR SHABU, WITH A NET WEIGHT OF
0.4578 GRAMS AND ARE HEREBY SENTENCED TO THE INDETERMINATE
PENALTY OF TWELVE (12) YEARS AND ONE (1) DAY, AS MINIMUM, TO
FOURTEEN (14) YEARS AND EIGHT (8) MONTHS, AS MAXIMUM AND A FINE
OF P300,000.00.

SO ORDERED.

SECOND DIVISION
[ G.R. No. 195956, March 11, 2015 ]
ABS-CBN CORPORATION, PETITIONER, VS. FELIPE GOZON,
GILBERTO R. DUAVIT, JR., MARISSA L. FLORES, JESSICA A.
SOHO, GRACE DELA PEÑA-REYES, JOHN OLIVER T.
MANALASTAS, JOHN DOES AND JANE DOES, RESPONDENTS.

DECISION

LEONEN, J.:

The main issue in this case is whether there is probable cause to charge
respondents with infringement under Republic Act No. 8293, otherwise known as
the Intellectual Property Code. The resolution of this issue requires clarification of
the concept of "copyrightable material" in relation to material that is rebroadcast
live as a news story. We are also asked to rule on whether criminal prosecution for
infringement of copyrightable material, such as live rebroadcast, can be negated by
good faith.

ABS-CBN Corporation (ABS-CBN) filed the Petition for Review on Certiorari[1] to

assail the November 9, 2010 Decision[2] and the March 3, 2011 Resolution[3] of the
Court of Appeals. The Court of Appeals reinstated the Department of Justice
Resolution dated August 1, 2005 that ordered the withdrawal of the Information
finding probable cause for respondents' violation of Sections 177[4] and 211[5] of the
Intellectual Property Code.[6] Respondents are officers and employees of GMA
Network, Inc. (GMA-7). They are: Felipe Gozon (Gozon), GMA-7 President; Gilberto
R. Duavit, Jr. (Duavit, Jr.), Executive Vice-President; Marissa L. Flores (Flores),
Vice-President for News and Public Affairs; Jessica A. Soho (Soho), Director for
News; Grace Déla Peña-Reyes (Dela Peña-Reyes), Head of News and Public Affairs;
John Oliver Manalastas '(Manalastas), Program Manager; and others.

The controversy arose from GMA-7's news coverage on the homecoming of Filipino
overseas worker and hostage victim Angelo dela Cruz on July 22, 2004. As
summarized by the Court of Appeals:
Overseas Filipino worker Angelo dela Cruz was kidnapped by Iraqi militants and as
a condition for his release, a demand was made for the withdrawal of Filipino troops
in Iraq. After negotiations, he was released by his captors and was scheduled to
return to the country in the afternoon of 22 July 2004. Occasioned by said
homecoming and the public interest it generated, both . . . GMA Network, Inc. . . .
and [petitioner] made their respective broadcasts and coverage of the live event.[7]
ABS-CBN "conducted live audio-video coverage of and broadcasted the arrival of
Angelo dela Cruz at the Ninoy Aquino International Airport (NAIA) and the
subsequent press conference."[8] ABS-CBN allowed Reuters Television Service
(Reuters) to air the footages it had taken earlier under a special embargo
agreement.[9]

ABS-CBN alleged that under the special embargo agreement, any of the footages it
took would be for the "use of Renter's international subscribers only, and shall be
considered and treated by Reuters under 'embargo' against use by other
subscribers in the Philippines. . . . [N]o other Philippine subscriber of Reuters would
be allowed to use ABS-CBN footage without the latter's consent."[10]

GMA-7, to which Gozon, Duavit, Jr., Flores, Soho, Dela Peña-Reyes, and Manalastas
are connected, "assigned and stationed news reporters and technical men at the
NAIA for its live broadcast and non-live news coverage of the arrival of dela
Cruz."[11] GMA-7 subscribes to both Reuters and Cable News Network (CNN). It
received a live video feed of the coverage of Angelo dela Cruz's arrival from
Reuters.[12]

GMA-7 immediately carried the live newsfeed in its program "Flash Report,"
together with its live broadcast.[13] Allegedly, GMA-7 did not receive any notice or
was not aware that Reuters was airing footages of ABS-CBN.[14] GMA-7's news
control room staff saw neither the "No Access Philippines" notice nor a notice that
the video feed was under embargo in favor of ABS-CBN.[15]

On August 13, 2004, ABS-CBN filed the Complaint for copyright infringement under
Sections 177[16] and 211[17] of the Intellectual Property Code.[18]

On December 3, 2004, Assistant City Prosecutor Dindo Venturanza issued the

Resolution[19] finding probable cause to indict Dela Peña-Reyes and
Manalastas.[20] Consequently, the Information[21] for violation of the Intellectual
Property Code was filed on December 17, 2004. It reads:
That on or about the 22nd of July 2004, in Quezon City, Philippines, the above-
named accused, conspiring together, confederating with and mutually helping each
other, being the Head of News Operations and the Program Manager, respectively,
for the News and Public Affairs Department of GMA Network, Inc., did then and
there, willfully, unlawfully and feloniously use and broadcast the footage of the
arrival of Angelo [d]ela Cruz at the Ninoy Aquino International Airport of which
ABS-CBN holds the exclusive ownership and copyright by then and there using,
airing, and broadcasting the said footage in its news program "FLASH REPORT"
without first obtaining the consent or authority of said copyright owner, to their
damage and prejudice.

Contrary to law.[22]
On January 4, 2005, respondents filed the Petition for Review before the
Department of Justice.[23] In the Resolution (Gonzalez Resolution) dated August 1,
2005, Department of Justice Secretary Raul M. Gonzalez (Secretary Gonzalez) ruled
in favor of respondents and held that good faith may be raised as a defense in the
case.[24] The dispositive portion of the Resolution reads:
WHEREFORE, THE PETITION FOR REVIEW FILED BY GMA-7 in I.S. No. 04-10458
is considered meritorious and is hereby GRANTED. This case is
hereby Dismissed, the resolution of the City Prosecutor of Quezon City is hereby
reversed and the same is ordered to withdraw the information if any and report
action taken to this office within ten (10) days.[25] (Emphasis in the original)
Both parties moved for reconsideration of the Gonzalez Resolution.[26]

Meanwhile, on January 19, 2005, the trial court granted the Motion to Suspend
Proceedings filed earlier by Dela Peña-Reyes and Manalastas.[27] The trial court
Order reads:
Perusing the motion, the court finds that a petition for review was filed with the
Department of Justice on January 5, 2005 as confirmed by the public prosecutor.
Under Section 11 (c), Rule 116 of the Rules of Criminal Procedure, once a petition
for review is filed with the Department of Justice, a suspension of the criminal
proceedings may be allowed by the court.

Accordingly, to allow the Department of Justice the opportunity to act on said

petition for review, let the proceedings on this case be suspended for a period of
sixty (60) days counted from January 5, 2005, the date the petition was filed with
the Department of Justice. The arraignment of the accused on February 1, 2005 is
accordingly cancelled. Let the arraignment be rescheduled to March 8, 2005 at 8:30
a.m. The accused through counsel are notified in open court.

SO ORDERED.[28]
On June 29, 2010, Department of Justice Acting Secretary Alberto C. Agra
(Secretary Agra) issued the Resolution (Agra Resolution) that reversed the
Gonzalez Resolution and found probable cause to charge Dela Peña-Reyes and
Manalastas for violation of the Intellectual Property Code.[29] Secretary Agra also
found probable cause to indict Gozon, Duavit, Jr., Flores, and Soho for the same
violation.[30] He ruled that:
[w]hile good faith may be a defense in copyright infringement, the same is a
disputable presumption that must be proven in a full-blown trial. Disputable
presumptions may be contradicted and overcome by other evidence. Thus, a full-
blown trial is the proper venue where facts, issues and laws are evaluated and
considered. The very purpose of trial is to allow a party to present evidence to
overcome the disputable presumptions involved.[31]
The dispositive portion of the Agra Resolution provides:
WHEREFORE, premises considered:

(a) The Motion for Reconsideration filed by appellees ABS-CBN Broadcasting

Corporation (ABS-CBN) of our Resolution promulgated on August 1, 2005
(Resolution No. 364, Series of 2005) and the Petition for Review filed by
complainant-appellant ABS-CBN in I.S. No. 04-10458 on April 10, 2006, are
GRANTED and the City Prosecutor of Quezon City is hereby ordered to file the
necessary Information for violation of Section 177 and 211 of Republic Act No. 8293
against GMA-7. Felipe L. Gozon, Gilberto R. Duavit, Jr., Marissa L. Flores, Jessica A.
Soho, Grace Dela Pena-Reyes, John Oliver T. Manalastas[.]

SO ORDERED.[32] (Emphasis in the original)

Respondents assailed the Agra Resolution through the Petition for Certiorari with
prayer for issuance of a temporary restraining order and/or Writ of Preliminary
Injunction on September 2, 2010 before the Court of Appeals. In the Resolution
dated September 13, 2010, the Court of Appeals granted the temporary restraining
order preventing the Department of Justice from enforcing the Agra Resolution.[33]

On November 9, 2010, the Court of Appeals rendered the Decision granting the
Petition and reversing and setting aside the Agra Resolution.[34] The Court of
Appeals held that Secretary Agra committed errors of jurisdiction in issuing the
assailed Resolution. Resolving the issue of copyright infringement, the Court of
Appeals said:
Surely, private respondent has a copyright of its news coverage. Seemingly, for
airing said video feed, petitioner GMA is liable under the provisions of the
Intellectual Property Code, which was enacted purposely to protect copyright
owners from infringement. However, it is an admitted fact that petitioner GMA had
only aired a five (5) second footage of the disputed live video feed that it had
received from Reuters and CNN as a subscriber. Indeed, petitioners had no notice
of the right of ownership of private respondent over the same. Without notice of the
"No Access Philippines" restriction of the live video feed, petitioner cannot he
faulted for airing a live video feed from Reuters and CNN.

Verily, as aptly opined by Secretary Gonzalez in his earlier Resolution, the act of
petitioners in airing the five (5) second footage was undeniably attended by good
faith and it thus serves to exculpate them from criminal liability under the
Code. While the Intellectual Properly Code is a special law, and thus generally
categorized as malum prohibitum, it bears to stress that the provisions of the
Code itself do not ipso facto penalize a person or entity for copyright infringement
by the mere fact that one had used a copyrighted work or material.

Certainly so, in the exercise of one's moral and economic or copyrights, the very
provisions of Part IV of the Intellectual Property Code provide for the scope and
limitations on copyright protection under Section 184 and in fact permit fair use of
copyrighted work under Section 185. With the aforesaid statutory limitations on
one's economic and copyrights and the allowable instances where the other persons
can legally use a copyrighted work, criminal culpability clearly attaches only when
the infringement had been knowingly and intentionally committed.[35] (Emphasis
supplied)
The dispositive portion of the Decision reads:
WHEREFORE, the foregoing considered, the instant petition is
hereby GRANTED and the assailed Resolution dated 29 June
2010 REVERSED and SET ASIDE. Accordingly, the earlier Resolution dated 1
August 2005, which ordered the withdrawal of the Information filed, if any, against
the petitioners for violation of Sections 177 and 211 of the Intellectual Property
Code, is hereby REINSTATED. No costs.

SO ORDERED.[36] (Emphasis in the original)

ABS-CBN's Motion for Reconsideration was denied.[37] It then filed its Petition for
Review before this court assailing the Decision and Resolution of the Court of
Appeals.[38]

The issues for this court's consideration are:

First, whether Secretary Agra committed errors of jurisdiction in the Resolution

dated June 29, 2010 and, therefore, whether a petition for certiorari was the proper
remedy in assailing that Resolution;

Second, whether news footage is copyrightable under the law;

Third, whether there was fair use of the broadcast material;

Fourth, whether lack of knowledge that a material is copyrighted is a defense

against copyright infringement;

Fifth, whether good faith is a defense in a criminal prosecution for violation of the
Intellectual Property Code; and

Lastly, whether the Court of Appeals was correct in overturning Secretary Agra's
finding of probable cause.

The trial court granted respondents' Motion to Suspend Proceedings and deferred
respondents Dela Peña-Reyes and Manalastas' arraignment for 60 days in view of
the Petition for Review filed before the Department of Justice.

Rule 116, Section 11 (c) of the Rules of Criminal Procedure allows the suspension of
the accused's arraignment in certain circumstances only:
SEC. 11. Suspension of arraignment.-Upon motion by the proper party, the
arraignment shall be suspended in the following cases:

(a) The accused appears to be suffering from an unsound mental condition which
effectively renders him unable to fully understand the charge against him and to
plead intelligently thereto. In such case, the court shall order his mental
examination and, if necessary, his confinement for such purpose;

(b) There exists a prejudicial question; and

(c) A petition for review of the resolution of the prosecutor is pending at either the
Department of Justice, or the Office of the President; provided, that the period of
suspension shall not exceed sixty (60) days counted from the filing of the petition
with the reviewing office. (12a) (Emphasis supplied)
In Samson v. Daway,[39] this court acknowledged the applicability of Rule 116,
Section (c) in a criminal prosecution for infringement under the Intellectual Property
Code. However, this court emphasized the limits of the order of deferment under
the Rule:

While the pendency of a petition for review is a ground for suspension of the
arraignment, the . . . provision limits the deferment of the arraignment to a period
of 60 days reckoned from the filing of the petition with the reviewing office. It
follows, therefore, that after the expiration of said period, the trial court is bound to
arraign the accused or to deny the motion to defer arraignment.[40]

We clarify that the suspension of the arraignment should always be within the limits
allowed by law. In Crespo v. Judge Mogul,[41] this court outlined the effects of filing
an information before the trial court, which includes initiating a criminal action and
giving this court "authority to hear and determine the case":[42]
The preliminary investigation conducted by the fiscal for the purpose of determining
whether a prima facie case exists warranting the prosecution of the accused is
terminated upon the filing of the information in the proper court. In turn, as above
stated, the filing of said information sets in motion the criminal action against the
accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the
case, at such stage, the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal should be submitted
to the Court for appropriate action. While it is true that the fiscal has the quasi
judicial discretion to determine whether or not a criminal case should be filed in
court or not, once the case had already been brought to Court whatever disposition
the fiscal may feel should be proper in the case thereafter should be addressed for
the consideration of the Court, the only qualification is that the action of the Court
must not impair the substantial rights of the accused or the right of the People to
due process of law.

Whether the accused had been arraigned or not and whether it was due to a
reinvestigation by the fiscal or a review by the Secretary of Justice whereby a
motion to dismiss was submitted to the Court, the Court in the exercise of its
discretion may grant the motion or deny it and require that the trial on the merits
proceed for the proper determination of the case.

However, one may ask, if the trial court refuses to grant the motion to dismiss filed
by the fiscal upon the directive of the Secretary of Justice will there not be a
vacuum in the prosecution? A state prosecutor to handle the case cannot possibly
be designated by the Secretary of Justice who does not believe that there is a basis
for prosecution nor can the fiscal be expected to handle the prosecution of the case
thereby defying the superior order of the Secretary of Justice.

The answer is simple. The role of the fiscal or prosecutor as We all know is to see
that justice is done and not necessarily to secure the conviction of the person
accused before the Courts. Thus, in spite of his opinion to the contrary, it is the
duty of the fiscal to proceed with the presentation of evidence of the prosecution to
the Court to enable the Court to arrive at its own independent judgment as to
whether the accused should be convicted or acquitted. The fiscal should not shirk
from the responsibility of appearing for the People of the Philippines even under
such circumstances much less should he abandon the prosecution of the case
leaving it to the hands of a private prosecutor for then the entire proceedings will
be null and void. The least that the fiscal should do is to continue to appear for the
prosecution although he may turn over the presentation of the evidence to the
private prosecutor but still under his direction and control.

The rule therefore in this jurisdiction is that once a complaint or information is filed
in Court any disposition of the case as to its dismissal or the conviction or acquittal
of the accused rests in the sound discretion of the Court. Although the fiscal retains
the direction and control of the prosecution of criminal cases even while the case is
already in Court he cannot impose his opinion on the trial court. The Court is the
best and sole judge on what to do with the case before it. The determination of the
case is within its exclusive jurisdiction and competence. A motion to dismiss the
case filed by the fiscal should be addressed to the Court who has the option to
grant or deny the same. It does not matter if this is done before or after the
arraignment of the accused or that the motion was filed after a reinvestigation or
upon instructions of the Secretary of Justice who reviewed the records of the
investigation.[43] (Emphasis supplied, citations omitted)
The doctrine in Crespo was reiterated in Mayor Balindong v. Court of
Appeals,[44] where this court reminded the Department of Justice Secretary to
refrain from entertaining petitions for review when the case is already pending with
this court:
[I]n order to avoid a situation where the opinion of the Secretary of Justice who
reviewed the action of the fiscal may be disregarded by the trial court, the
Secretary of Justice should, as far as practicable, refrain from entertaining a
petition for review or appeal from the action of the fiscal, when the complaint or
information has already been filed in the Court. The matter should be left entirely
for the determination of the Court.[45]
The trial court should have proceeded with respondents Dela Peña-Reyes and
Manalastas' arraignment after the 60-day period from the filing of the Petition for
Review before the Department of Justice on March 8, 2005. It was only on
September 13, 2010 that the temporary restraining order was issued by the Court
of Appeals. The trial court erred when it did not act on the criminal case during the
interim period. It had full control and direction of the case. As Judge Mogul
reasoned in denying the motion to dismiss in Crespo, failure to proceed with the
arraignment "disregards the requirements of due process [and] erodes the Court's
independence and integrity."[46]
 II

According to ABS-CBN, the Court of Appeals erred in finding that: a motion for
reconsideration was not necessary before a petition for certiorari could be filed; the
Department of Justice Secretary committed errors of jurisdiction since the Agra
Resolution was issued within its authority and in accordance with settled laws and
jurisprudence; and respondents were not liable for copyright infringement.

In its assailed Decision, the Court of Appeals found that respondents committed a
procedural error when they failed to file a motion for reconsideration before filing
the Petition for Certiorari. However, the Court of Appeals held that a motion for
reconsideration was unnecessary since the Agra Resolution was a patent nullity and
it would have been useless under the circumstances:
Given that a reading of the assailed Resolution and the instant records readily
reveals errors -of jurisdiction on the part of respondent Secretary, direct judicial
recourse is warranted under the circumstances. Aside from the fact that said
Resolution is a patent nullity having been issued in grave abuse of discretion
amounting to lack or excess of jurisdiction, the filing of a motion for reconsideration
is evidently useless on account of the fact that the issues and arguments before this
Court have already been duly raised and accordingly delved into by respondent
Secretary in his disposition of the petition a quo.[47] (Emphasis in the original)
In Elma v. Jacobi,[48] this court ruled that a petition for certiorari under Rule 65 of
the Rules of Court is proper when assailing adverse resolutions of the Department
of Justice stemming from the determination of probable cause.[49] However, grave
abuse of discretion must be alleged.[50]

In Sanrio Company Limited v. Lim,[51] this court stressed the prosecutor's role in
determining probable cause. Judicial review will only lie when it is shown that the
prosecutor acted with grave abuse of discretion amounting to lack or excess of
jurisdiction:
A prosecutor alone determines the sufficiency of evidence that will establish
probable cause justifying the filing of a criminal information against the respondent.
By way of exception, however, judicial review is allowed where respondent has
clearly established that the prosecutor committed grave abuse of discretion.
Otherwise stated, such review is appropriate only when the prosecutor has
exercised his discretion in an arbitrary, capricious, whimsical or despotic manner by
reason of passion or personal hostility, patent and gross enough to amount to an
evasion of a positive duty or virtual refusal to perform a duty enjoined by
law.[52] (Citations omitted)
Grave abuse of discretion refers to:
such capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction. The abuse of discretion must be grave as where the power is exercised
in an arbitrary or despotic manner by reason of passion or personal hostility and
must be so patent and gross as to amount to an evasion of positive duty or to a
virtual refusal to perform the duty enjoined by or to act at all in contemplation of
law.[53]
Resorting to certiorari requires that there be there be "no appeal, or any plain,
speedy, and adequate remedy in the ordinary course of law[,]"[54] such as a motion
for reconsideration. Generally, "a motion for reconsideration is a condition sine qua
non before a petition for certiorari may lie, its purpose being to grant an
opportunity for the [tribunal or officer] to correct any error attributed to it by a re-
examination of the legal and factual circumstances of the case."[55]

However, exceptions to the rule exist:

(a) where the order is a patent nullity, as where the Court a quo had no
jurisdiction; (b) where the questions raised in the certiorari proceeding have been
duly raised and passed upon by the lower court, or are the same as those raised
and passed upon in the lower court; (c) where there is an urgent necessity for the
resolution of the question and any further delay would prejudice the interests of the
Government or of the petitioner or the subject matter of the action is perishable;
(d) where, under the circumstances, a motion for reconsideration would be useless;
(e) where petitioner was deprived of due process and there is extreme urgency for
relief; (f) where, in a criminal case, relief from an order of arrest is urgent and the
granting of such relief by the trial Court is improbable; (g) where the proceedings in
the lower court are a nullity for lack of due process; (h) where the proceedings
was ex parte or in which the petitioner had no opportunity to object; and (i) where
the issue raised is one purely of law or where public interest is
involved.[56] (Emphasis in the original, citations omitted)
As argued by respondents, "[a] second motion for reconsideration would have been
useless and futile since the Department] [of] J[ustice] had already passed upon the
same issues twice."[57] Equally pressing under the circumstances was the need to
resolve the matter, as the Information's filing would lead to respondents' imminent
arrest.[58]

Moreover, Department of Justice Department Circular No. 70 dated July 3, 2000, or

the 2000 NPS Rules on Appeal, provides that no second motion for reconsideration
of the Department of Justice Secretary's resolution shall be entertained:
SECTION 13. Motion for reconsideration. The aggrieved party may file a motion for
reconsideration within a non-extendible period of ten (10) days from receipt of the
resolution on appeal, furnishing the adverse party and the Prosecution Office
concerned with copies thereof and submitting proof of such service. No second or
further motion for reconsideration shall be entertained.
The Agra Resolution was the result of respondents' Motion for Reconsideration
assailing the Gonzalez Resolution. To file a motion for reconsideration of the Agra
Resolution would be superfluous. Respondents were, therefore, correct in filing the
Petition for Certiorari of the Agra Resolution before the Court of Appeals.

III

The Court of Appeals ruled that Secretary Agra committed errors of jurisdiction,
which then required the grant of the writ of certiorari:
So viewed, by ordering the filing of information without proof that probable cause
exists to charge petitioners with a crime, respondent Secretary clearly committed
an error of jurisdiction thus warranting the issuance of the writ of certiorari. Surely,
probable cause cannot be had when the very provisions of the statute exculpates
criminal liability in cases classified as fair use of copyrighted materials. The fact that
they admittedly used the Reuters live video feed is not, as a matter of course,
tantamount to copyright infringement that would justify the filing of an information
against the petitioners.[59]
Error of jurisdiction must be distinguished from error of judgment:

A line must be drawn between errors of judgment and errors of jurisdiction. An

error of judgment is one which the court may commit in the exercise of its
jurisdiction. An error of jurisdiction renders an order or judgment void or voidable.
Errors of jurisdiction are reviewable on certiorari; errors of judgment, only by
appeal.[60]

In People v. Hon. Sandiganbayan[61]:

An error of judgment is one which the court may commit in the exercise of its
jurisdiction. An error of jurisdiction is one where the act complained of was issued
by the court without or in excess of jurisdiction, or with grave abuse of discretion,
which is tantamount to lack or in excess of jurisdiction and which error is correctible
only by the extraordinary writ of certiorari. Certiorari will not be issued to cure
errors of the trial court in its appreciation of the evidence of the parties, or its
conclusions anchored on the said findings and its conclusions of law.[62] (Emphasis
supplied)
This court has adopted a deferential attitude towards review of the executive's
finding of probable cause.[63] This is based "not only upon the respect for the
investigatory and [prosecutorial] powers granted by the Constitution to the
executive department but upon practicality as well."[64] Review of the Department
of Justice Secretary's decision or resolution will be allowed only when grave abuse
of discretion is alleged:
The full discretionary authority to determine probable cause in a preliminary
investigation to ascertain sufficient ground for the filing of information rests with
the executive branch. Hence, judicial review of the resolution of the Secretary of
Justice is limited to a determination whether there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction. Courts cannot substitute the
executive branch's judgment.

. . . .

It is only where the decision of the Justice Secretary is tainted with grave abuse of
discretion amounting to lack or excess of jurisdiction that the Court of Appeals may
take cognizance of the case in a petition for certiorari under Rule 65 of the Revised
Rules of Civil Procedure. The Court of Appeals decision may then be appealed to
this Court by way of a petition for review on certiorari.[65] (Emphasis supplied,
citations omitted)
In this case, it must be shown that Secretary Agra exceeded his authority when he
reversed the findings of Secretary Gonzalez. This court must determine whether
there is probable cause to file an information for copyright infringement under the
Intellectual Property Code.

IV
Probable cause pertains to "such facts as are sufficient to engender a well-founded
belief that a crime has been committed and that respondent is probably guilty
thereof." [66] Preliminary investigation is the inquiry or proceeding to determine
whether there is probable cause.[67]

In Webb v. De Leon,[68] this court ruled that determination of probable cause during
preliminary investigation does not require trial-like evaluation of evidence since
existence of probable cause does not equate to guilt:
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.

. . . .

. . . A finding of probable cause merely binds over the suspect to stand trial. It is
not a pronouncement of guilt.[69]
In Reyes v. Pearlbank Securities, Inc.,[70] finding probable cause is not equivalent to
finding with moral certainty that the accused committed the crime:

A finding of probable cause needs only to rest on evidence showing that more likely
than not a crime has been committed by the suspects. It need not be based on
clear and convincing evidence of guilt, not on evidence establishing guilt beyond
reasonable doubt, and definitely not on evidence establishing absolute certainty of
guilt. In determining probable cause, the average man weighs facts and
circumstances without resorting to the calibrations of the rules of evidence of which
he has no technical knowledge. He relies on common sense.[71]

During preliminary investigation, a public prosecutor does not adjudicate on the

parties' rights, obligations, or liabilities.[72]

In the recent case of Estrada v. Office of the Ombudsman, et al,[73] we

reiterated Webb on the determination of probable cause during preliminary
investigation and traced the history of probable cause as borrowed from American
jurisprudence:
The purpose in determining probable cause is to make sure that the courts are not
clogged with weak cases that will only be dismissed, as well as to spare a person
from the travails of a needless prosecution.

. . . .

. . . In the United States, from where we borrowed the concept of probable cause,
the prevailing definition of probable cause is this:
In dealing with probable cause, however, as the very name implies, we deal with
probabilities. These are not technical; they are the factual and practical
considerations of everyday life on which reasonable and prudent men, not legal
technicians, act. The standard of proof is accordingly correlative to what must be
proved.

"The substance of all the definitions" of probable cause "is a reasonable ground for
belief of guilt." McCarthy v. De Armit, 99 Pa. St. 63, 69, quoted with approval in the
Carroll opinion. 267 U. S. at 161. And this "means less than evidence which would
justify condemnation" or conviction, as Marshall, C. J., said for the Court more than
a century ago in Locke v. United States, 7 Cranch 339, 348. Since Marshall's time,
at any rate, it has come to mean more than bare suspicion: Probable cause exists
where "the facts and circumstances within their [the officers'] knowledge and of
which they had reasonably trustworthy information [are] sufficient in themselves to
warrant a man of reasonable caution in the belief that" an offense has been or is
being committed. Carroll v. United States, 267 U. S. 132, 162.

These long-prevailing standards seek to safeguard citizens from rash and

unreasonable interferences with privacy and from unfounded charges of crime.
They also seek to give fair leeway for enforcing the law in the community's
protection. Because many situations which confront officers in the course of
executing their duties are more or less ambiguous, room must be allowed for some
mistakes on their part. But the mistakes must be those of reasonable men, acting
on facts leading sensibly to their conclusions of probability. The rule of probable
cause is a practical, nontechnical conception affording the best compromise that
has been found for accommodating these often opposing interests. Requiring more
would unduly hamper law enforcement. To allow less would be to leave law-abiding
citizens at the mercy of the officers' whim or caprice.
In the Philippines, there are four instances in the Revised Rules of Criminal
Procedure where probable cause is needed to be established:

(1) In Sections 1 and 3 of Rule 112: By the investigating officer, to determine whether
there is sufficient ground to engender a well-founded belief that a crime has been
committed and the respondent is probably guilty thereof, and should be held for trial. A
preliminary investigation is required before the filing of a complaint or information for
an offense where the penalty prescribed by law is at least four years, two months and
one day without regard to the fine;

(2) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a warrant of arrest
or a commitment order, if the accused has already been arrested, shall be issued and
that there is a necessity of placing the respondent under immediate custody in order not
to frustrate the ends of justice;

(3) In Section 5(b) of Rule 113: By a peace officer or a private person making a
warrantless arrest when an offense has just been committed, and he has probable cause
to believe based on personal knowledge of facts or circumstances that the person to be
arrested has committed it; and

(4) In Section 4 of Rule 126: By the judge, to determine whether a search warrant shall be
issued, and only upon probable cause in connection with one specific offense to be
determined personally by the judge after examination under oath or affirmation of the
 complainant and the witnesses he may produce, and particularly describing the place to
be searched and the things to be seized which may be anywhere in the
Philippines.

In all these instances, the evidence necessary to establish probable cause is based
only on the likelihood, or probability, of guilt.[74]
Estrada also highlighted that a "[preliminary investigation is not part of the criminal
action. It is merely preparatory and may even be disposed of in certain
situations."[75]

To determine whether there is probable cause that respondents committed

copyright infringement, a review of the elements of the crime, including the existing
facts, is required.

ABS-CBN claims that news footage is subject to copyright and prohibited use of
copyrighted material is punishable under the Intellectual Property Code. It argues
that the new footage is not a "newsworthy event" but "merely an account of the
arrival of Angelo dela Cruz in the Philippines — the latter being the newsworthy
event":[76]
To be clear, it is the event itself or the arrival of Angelo dela Cruz which is not
copyrightable because that is the newsworthy event. However, any footage created
from the event itself, in this case the arrival of Angelo dela Cruz, are intellectual
creations which are copyrightable. Thus, the footage created by ABS-CBN during
the arrival of Angelo dela Cruz, which includes the statements of Dindo Amparo, are
copyrightable and protected by the laws on copyright.[77]
On the other hand, respondents argue that ABS-CBN's news footage of Angelo dela
Cruz's arrival is not copyrightable or subject to protection:
Certainly, the arrival of Angelo [d]ela Cruz, which aroused public attention and the
consciousness of the Filipino people with regard to their countrymen, OFWs working
in foreign countries and how the Philippine government responds to the issues
concerning them, is "news". There is no ingenuity or inventiveness added in the
said news footage. The video footage of this "news" is not copyrightable by any
legal standard as facts of everyday life depicted in the news and items of press
information is part of the public domain.[78] (Emphasis in the original)
The news footage is copyrightable.

The Intellectual Property Code is clear about the rights afforded to authors of
various kinds of work. Under the Code, "works are protected by the sole fact of
their creation, irrespective of their mode or form of expression, as well as of their
content, quality and purpose."[79] These include "[audio-visual works and
cinematographic works and works produced by a process analogous to
cinematography or any process for making audiovisual recordings."[80]

Contrary to the old copyright law,[81] the Intellectual Property Code does not require
registration of the work to fully recover in an infringement suit. Nevertheless, both
copyright laws provide that copyright for a work is acquired by an intellectual
creator from the moment of creation.[82]

It is true that under Section 175 of the Intellectual Property Code, "news of the day
and other miscellaneous facts having the character of mere items of press
information" are considered unprotected subject matter.[83] However, the Code
does not state that expression of the news of the day, particularly when it
underwent a creative process, is not entitled to protection.

An idea or event must be distinguished from the expression of that idea or event.
An idea has been likened to a ghost in that it "must be spoken to a little before it
will explain itself."[84] It is a concept that has eluded exact legal definition.[85] To get
a better grasp of the idea/expression dichotomy, the etymology of the term "idea"
is traced:
The word "idea" is derived from a Greek term, meaning "a form, the look or
appearance of a thing as opposed to its reality, from idein, to see." In
the Timaeus, Plato saw ideas as eternal paradigms, independent objects to which
the divine demiurge looks as patterns in forming the world. This was later modified
to the religious conception of ideas as the thoughts of God. "It is not a very long
step to extend the term 'idea' to cover patterns, blueprints, or plans in anyone's
mind, not only in God's." The word entered the French and English vernacular in the
1600s and possessed two meanings. The first was the Platonic meaning of a perfect
exemplar or paradigm. The second, which probably has its origin with Descartes, is
of a mental concept or image or, more broadly, any object of the mind when it is
active. Objects of thought may exist independently. The sun exists (probably)
before and after you think of it. But it is also possible to think of things that have
never existed, such as a unicorn or Pegasus. John Locke defined ideas very
comprehensively, to include: all objects of the mind. Language was a way of
translating the invisible, hidden ideas that make up a person's thoughts into the
external, perceptible world of articulate sounds and visible written symbols that
others can understand.[86] (Citations omitted)
There is no one legal definition of "idea" in this jurisdiction. The term "idea" is
mentioned only once in the Intellectual Property Code.[87] In Joaquin, Jr. v.
Drilon,[88] a television format (i.e., a dating show format) is not copyrightable under
Section 2 of Presidential Decree No. 49;[89] it is a mere concept:
P.D. No. 49, §2, in enumerating what are subject to copyright, refers to finished
works and not to concepts. The copyright does not extend to an idea, procedure,
process, system, method of operation, concept, principle, or discovery, regardless
of the form in which it is described, explained, illustrated, or embodied in such
work. Thus, the new INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES
provides:
SEC. 175. Unprotected Subject Matter.—Notwithstanding the provisions of Sections
172 and 173, no protection shall extend, under this law, to any idea, procedure,
system, method or operation, concept, principle, discovery or mere data as such,
even if they are expressed, explained, illustrated or embodied in a work; news of
the day and other miscellaneous facts having the character of mere items of press
information; or any official text of a legislative, administrative or legal nature, as
well as any official translation thereof.
What then is the subject matter of petitioners' copyright? This Court is of the
opinion that petitioner BJPFs copyright covers audio-visual recordings of each
episode of Rhoda and Me, as falling within the class of works mentioned in P.D. 49,
§2(M), to wit:
Cinematographic works and works produced by a process analogous to
cinematography or any process for making audio-visual recordings;
The copyright does not extend to the general concept or format of its dating game
show. Accordingly, by the very nature of the subject of petitioner BJPI's copyright,
the investigating prosecutor should have the opportunity to compare the videotapes
of the two shows.

Mere description by words of the general format of the two dating game shows is
insufficient; the presentation of the master videotape in evidence was indispensable
to the determination of the existence of probable cause. As aptly observed by
respondent Secretary of Justice:

A television show includes more than mere words can describe because it involves a
whole spectrum of visuals and effects, video and audio, such that no similarity or
dissimilarity may be found by merely describing the general copyright/format of
both dating game shows[90] (Emphasis supplied, citations omitted)
Ideas can be either abstract or concrete.[91] It is the concrete ideas that are
generally referred to as expression:
The words "abstract" and "concrete" arise in many cases dealing
with the idea/expression distinction. The Nichols court, for example, found that
the defendant's film did not infringe the plaintiffs play because it was "too
generalized an abstraction from what plaintiff wrote . . . only a part of her ideas."
In Eichel v. Marcin, the court said that authors may exploit facts, experiences, field
of thought, and general ideas found in another's work, "provided they do not
substantially copy a concrete form, in which the circumstances and ideas have been
developed, arranged, and put into shape." Judge Hand, in National Comics
Publications, Inc. v. Fawcett Publications, Inc. said that "no one infringes, unless he
descends so far into what is concrete as to invade. . . 'expression.'"

These cases seem to be distinguishing "abstract" ideas from "concrete" tangible

embodiments of these abstractions that may be termed expression. However, if the
concrete form of a work means more than the literal expression contained within it,
it is difficult to determine what is meant by "concrete." Webster's New Twentieth
Century Dictionary of the English Language provides several meanings for the word
concrete. These include: "having a material, perceptible existence; of, belonging to,
or characterized by things or events that can be perceived by the senses; real;
actual;" and "referring to a particular; specific, not general or abstract."[92]
In Pearl & Dean (Phil.), Incorporated v. Shoemart, Incorporated,[93] this court,
citing the American case of Baker v. Selden, distinguished copyright from patents
and illustrated how an idea or concept is different from the expression of that idea:
In the oft-cited case of Baker vs. Selden, the United States Supreme Court held
that only the expression of an idea is protected by copyright, not the idea itself. In
that case, the plaintiff held the copyright of a book which expounded on a new
accounting system he had developed. The publication illustrated blank forms of
ledgers utilized in such a system. The defendant reproduced forms similar to those
illustrated in the plaintiffs copyrighted book. The US Supreme Court ruled that:
"There is no doubt that a work on the subject of book-keeping, though only
explanatory of well known systems, may be the subject of a copyright; but, then, it
is claimed only as a book, x x x But there is a clear distinction between the books,
as such, and the art, which it is, intended to illustrate. The mere statement of the
proposition is so evident that it requires hardly any argument to support ii. The
same distinction may be predicated of every other art as well as that of
bookkeeping.

A treatise on the composition and use of medicines, be they old or new; on the
construction and use of ploughs or watches or churns; or on the mixture and
application of colors for painting or dyeing; or on the mode of drawing lines to
produce the effect of perspective, would be the subject of copyright; but no one
would contend that the copyright of the treatise would give the exclusive right to
the art or manufacture described therein. The copyright of the book, if not pirated
from other works, would be valid without regard to the novelty or want of novelty
of its subject matter. The novelty of the art or thing described or explained has
nothing to do with the validity of the copyright. To give to the author of the book an
exclusive property in the art described therein, when no examination of its novelty
has ever been officially made, would be a surprise and a fraud upon the public. That
is the province of letters patent, not of copyright. The claim to an invention of
discovery of an art or manufacture must be subjected to the examination of the
Patent Office before an exclusive right therein can be obtained; and a patent from
the government can only secure it.

The difference between the two things, letters patent and copyright, may be
illustrated by reference to the subjects just enumerated. Take the case of
medicines. Certain mixtures are found to be of great value in the healing art. If the
discoverer writes and publishes a book on the subject (as regular physicians
generally do), he gains no exclusive right to the manufacture and sale of the
medicine; he gives that to the public. If he desires to acquire such exclusive right,
he must obtain a patent for the mixture as a new art, manufacture or composition
of matter. He may copyright his book, if he pleases; but that only secures to him
the exclusive right of printing and publishing his book. So of all other inventions or
discoveries.

The copyright of a book on perspective, no matter how many drawings and

illustrations it may contain, gives no exclusive right to the modes of drawing
described, though they may never have been known or used before. By publishing
the book without getting a patent for the art, the latter is given to the public.

. . . .

Now, whilst no one has a right to print or publish his book or any material part
thereof, as a hook intended to convey instruction in the art, any person may
practice and use the, art itself which he has described and illustrated therein. The
use of the art is a totally different thing from a publication of the book, explaining
it. The copyright of a book on bookkeeping cannot secure the exclusive right to
make, sell and use account books prepared upon the plan set forth in such book.
Whether the art might or might not have been patented, is a question, which is not
before us. It was not patented, and is open and free to the use of the public. And,
of course, in using the art, the ruled lines and headings of accounts must
necessarily be used as incident to it.

The plausibility of the claim put forward by the complainant in this case arises from
a confusion of ideas produced by the peculiar nature of the art described in the
books, which have been made the subject of copyright. In describing the art, the
illustrations and diagrams employed happened to correspond more closely than
usual with the actual work performed by the operator who uses the art. x x x The
description of the art in a book, though entitled to the benefit of copyright, lays no
foundation for an exclusive claim to the art itself. The object of the one is
explanation; the object of the other is use. The former may be secured by
copyright. The latter can only be secured, if it can be secured at all, by letters
patent."[94] (Emphasis supplied)
News or the event itself is not copyrightable. However, an event can be captured
and presented in a specific medium. As recognized by this court
in Joaquin, television "involves a whole spectrum of visuals and effects, video and
audio."[95] News coverage in television involves framing shots, using images,
graphics, and sound effects. It involves creative process and originality. Television
news footage is an expression of the news.

In the United States, a line of cases dwelt on the possibility of television newscasts
to be copyrighted.[97] Most of these cases focused on private individuals' sale or
resale of tapes of news broadcasts. Conflicting decisions were rendered by its
courts. Noteworthy, however, is the District Court's pronouncement in Pacific &
Southern Co. v. Duncan,[98] which involves a News Monitoring Service's videotaping
and sale of WXIA-TVs news broadcasts:
It is axiomatic that copyright protection does not extend to news "events"
or the facts or ideas which are the subject of news reports. Miller v.
Universal City Studios, Inc., 650 F.2d 1365, 1368 (5th Cir. 1981); Wainwright
Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 95 (2d Cir.
1977), cert, denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 759 (1978). But it is
equally well-settled that copyright protection does extend to the reports
themselves, as distinguished from the substance of the information
contained in the reports. Wainwright, 558 F.2d at 95; International News
Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918);
see Chicago Record-Herald Co. v. Tribune Assn., 275 F. 797 (7th Cir.1921); 1
Nimmer on Copyright § 2.11[B] (1983). Copyright protects the manner of
expression of news reports, "the particular form or collocation of words in
which the writer has communicated it" International News Service, 248 U.S. at
234, 39 S.Ct. at 70. Such protection extends to electronic news reports as well as
written reports. See 17 U.S.C. § 102(a) (5), (6), and (7); see also Iowa State
University Research Foundations, Inc. v. American Broadcasting Cos., 621 F.2d 57,
61 (2d Cir. 1980)." (Emphasis supplied)
The idea/expression dichotomy has long been subject to debate in the field of
copyright law. Abolishing the dichotomy has been proposed, in that non-
protectibility of ideas should be re-examined, if not stricken, from decisions and the
law:
If the underlying purpose of the copyright law is the dual one expressed by Lord
Mansfield, the only excuse for the continuance of the idea-expression test as a
judicial standard for determining protectibility would be that it was or could be a
truly useful method of determining the proper balance between the creator's right
to profit from his work and the public's right that the "progress of the arts not be
retarded."

. . . [A]s used in the present-day context[,] the dichotomy has little or no

relationship to the policy which it should effectuate. Indeed, all too often the
sweeping language of the courts regarding the nonprotectibility of ideas gives the
impression that this is of itself a policy of the law, instead of merely a clumsy and
outdated tool to achieve a much more basic end.[100]
The idea/expression dichotomy is a complex matter if one is trying to determine
whether a certain material is a copy of another.101 This dichotomy would be more
relevant in determining, for instance, whether a stage play was an infringement of
an author's book involving the same characters and setting. In this case, however,
respondents admitted that the material under review — which is the subject of the
controversy — is an exact copy of the original. Respondents did not subject ABS-
CBN's footage to any editing of their own. The news footage did not undergo any
transformation where there is a need to track elements of the original.

Having established the protectible nature of news footage, we now discuss the
concomitant rights accorded to authors. The authors of a work are granted several
rights in relation to it, including copyright or economic rights:
SECTION 177. Copyright or Economic Rights. — Subject to the provisions of
Chapter VIII, copyright or economic rights shall consist of the exclusive right to
carry out, authorize or prevent the following acts:
177.1. Reproduction of the work or substantial portion of the work;

177.2. Dramatization, translation, adaptation, abridgment, arrangement or other transformation

of the work;

177.3. The first public distribution of the original and each copy of the work by sale or other
forms of transfer of ownership;

177.4. Rental of the original or a copy of an audiovisual or cinematographic work, a work

embodied in a sound recording, a computer program, a compilation of data and other
materials or a musical work in graphic form, irrespective of the ownership of the original
or the copy which is the subject of the rental; (n)

177.5. Public display of the original or a copy of the work;

177.6. Public performance of the work; and

177.7. Other communication to the public of the work. (Sec. 5, P. D. No. 49a) (Emphasis
supplied)
Under Section 211 of the Intellectual Property Code, broadcasting organizations are
granted a more specific set of rights called related or neighboring rights:
SECTION 211. Scope of Right. — Subject to the provisions of Section
212, broadcasting organizations shall enjoy the exclusive right to carry out,
authorize or prevent any of the following acts:
211.1. The rebroadcasting of their broadcasts;

211.2. The recording in any manner, including the making of films or the use of video tape, of
their broadcasts for the purpose of communication to the public of television broadcasts
of the same; and

211.3. The use of such records for fresh transmissions or for fresh recording. (Sec. 52, P.D. No.
49) (Emphasis supplied)
Section 212 of the Code provides:

CHAPTER XV
LIMITATIONS ON PROTECTION

Section 212. Limitations on Rights. - Sections 203, 208 and 209 shall not apply
where the acts referred to in those Sections are related to:
212.1. The use by a natural person exclusively for his own personal purposes;

212.2. Using short excerpts for reporting current events;

212.3. Use solely for the purpose of teaching or for scientific research; and

212.4. Fair use of the broadcast subject to the conditions under Section 185. (Sec. 44, P.D. No.
49a)
The Code defines what broadcasting is and who broadcasting organizations include:
202.7. "Broadcasting" means the transmission by wireless means for the public
reception of sounds or of images or of representations thereof; such transmission
by satellite is also "broadcasting" where the means for decrypting are provided to
the public by the broadcasting organization or with its consent;

202.8. "Broadcasting organization" shall include a natural person or a juridical

entity duly authorized to engage in broadcasting[.]
Developments in technology, including the process of preserving once ephemeral
works and disseminating them, resulted in the need to provide a new kind of
protection as distinguished from copyright.[102] The designation "neighboring rights"
was abbreviated from the phrase "rights neighboring to copyright."[103] Neighboring
or related rights are of equal importance with copyright as established in the
different conventions covering both kinds of rights.[104]
Several treaties deal with neighboring or related rights of copyright.[105] The most
prominent of these is the "International Convention for the Protection of
Performers, Producers of Phonograms and Broadcasting Organizations" (Rome
Convention).[106]

The Rome Convention protects the rights of broadcasting organizations in relation

to their broadcasts. Article XIII of the Rome Convention enumerates the minimum
rights accorded to broadcasting organizations:
Article 13
Minimum Rights for Broadcasting Organizations

Broadcasting organisations shall enjoy the right to authorize or prohibit:

(a) the rebroadcasting of their broadcasts;

(b) the fixation of their broadcasts;

(c) the reproduction:

(i) of fixations, made without their consent, of their broadcasts;

(ii) of fixations, made in accordance with the provisions of Article 15, of their broadcasts,
if the reproduction is made for purposes different from those referred to in those
provisions;

(d) the communication to the public of their television broadcasts if such communication is
made in places accessible to the public against payment of an entrance fee; it shall be a
matter for the domestic law of the State where protection of this right is claimed to
determine the conditions under which it may be exercised.
With regard to the neighboring rights of a broadcasting organization in this
jurisdiction, this court has discussed the difference between broadcasting and
rebroadcasting:
Section 202.7 of the IP Code defines broadcasting as "the transmission by
wireless means for the public reception of sounds or of images or of representations
thereof; such transmission by satellite is also 'broadcasting' where the means for
decrypting are provided to the public by the broadcasting organization or with its
consent."

On the other hand, rebroadcasting as defined in Article 3(g) of the International

Convention for the Protection of Performers, Producers of Phonograms and
Broadcasting Organizations, otherwise known as the 1961 Rome Convention, of
which the Republic of the Philippines is a signatory, is "the simultaneous
broadcasting by one broadcasting organization of the broadcast of another
broadcasting organization."

. . . .
Under the Rome Convention, rebroadcasting is "the simultaneous broadcasting by
one broadcasting organization of the broadcast of another broadcasting
organization." The Working Paper prepared by the Secretariat of the Standing
Committee on Copyright and Related Rights defines broadcasting organizations as
"entities that take the financial and editorial responsibility for the selection and
arrangement of, and investment in, the transmitted content."[107] (Emphasis in the
original, citations omitted)
Broadcasting organizations are entitled to several rights and to the protection of
these rights under the Intellectual Property Code. Respondents' argument that the
subject news footage is not copyrightable is erroneous. The Court of Appeals, in its
assailed Decision, correctly recognized the existence of ABS-CBN's copyright over
the news footage:
Surely, private respondent has a copyright of its news coverage. Seemingly, for
airing said video feed, petitioner GMA is liable under the provisions of the
Intellectual Property Code, which was enacted purposely to protect copyright
owners from infringement.[108]
News as expressed in a video footage is entitled to copyright
protection. Broadcasting organizations have not only copyright on but also
neighboring rights over their broadcasts. Copyrightability of a work is different
from fair use of a work for purposes of news reporting.

VI

ABS-CBN assails the Court of Appeals' ruling that the footage shown by GMA-7 falls
under the scope of Section 212.2 and 212.4 of the Intellectual Property Code:
The evidence on record, as well as the discussions above, show that the footage
used by [respondents] could hardly be characterized as a short excerpt, as it was
aired over one and a half minutes.

Furthermore, the footage used does not fall under the contemplation of Section
212.2 of the Intellectual Property Code. A plain reading of the provision would
reveal that copyrighted material referred to in Section 212 are short portions of an
artist's performance under Section 203, or a producer's sound recordings under
Sections 208 and 209. Section 212 does not refer to actual use of video footage of
another as its own.

. . . .

The Angelo dela Cruz footage does not fall under the rule on Section 212.4 of the
Intellectual Property Code on fair use of the broadcast.

In determining fair use, several factors are considered, including the nature of the
copyrighted work, and the amount and substantiality of the person used in relation
to the copyrighted work as a whole.

In the business of television news reporting, the nature of the copyrighted work or
the video footages, are such that, footage created, must be a novelty to be a good
report. Thus, when the . . . Angelo dela Cruz footage was used by [respondents],
the novelty of the footage was clearly affected.

Moreover, given that a substantial portion of the Angelo dela Cruz footage was
utilized by GMA-7 for its own, its use can hardly be classified as fair use.

Hence, [respondents] could not be considered as having used the Angelo dela Cruz
[footage] following the provisions on fair use.

It is also worthy to note that the Honorable Court of Appeals seem to contradict
itself when it relied on the provisions of fair use in its assailed rulings considering
that it found that the Angelo dela Cruz footage is not copyrightable, given that the
fair use presupposes an existing copyright. Thus, it is apparent that the findings of
the Honorable Court of Appeals are erroneous and based on wrong
assumptions.[109] (Underscoring in the original)
On the other hand, respondents counter that GMA-7's use of ABS-CBN's news
footage falls under fair use as defined in the Intellectual Property Code.
Respondents, citing the Court of Appeals Decision, argue that a strong statutory
defense negates any finding of probable cause under the same statute. The
Intellectual Property Code provides that fair use negates infringement.

Respondents point out that upon seeing ABS-CBN's reporter Dindo Amparo on the
footage, GMA-7 immediately shut off the broadcast. Only five (5) seconds passed
before the footage was cut. They argue that this shows that GMA-7 had no prior
knowledge of ABS-CBN's ownership of the footage or was notified of it. They claim
that the Angelo dela Cruz footage is considered a short excerpt of an event's
"news" footage and is covered by fair use.[111]

Copyright protection is not absolute.[112] The Intellectual Property Code provides

the limitations on copyright:

CHAPTER VIII
LIMITATIONS ON COPYRIGHT

Section 184. Limitations on Copyright. - 184.1. Notwithstanding the provisions of

Chapter V, the following acts shall not constitute infringement of copyright:

. . . .

184.2. The provisions of this section shall be interpreted in such a way as to allow
the work to be used in a manner which does not conflict with the normal
exploitation of the work and does not unreasonably prejudice the right holder's
legitimate interests.

. . . .

CHAPTER XV
LIMITATIONS ON PROTECTION
Section 212. Limitations on Rights. - Sections 203, 208 and 209 shall not apply
where the acts referred to in those Sections are related to:

. . . .

212.2. Using short excerpts for reporting current events;

212.4. Fair use of the broadcast subject to the conditions under Section 185. (Sec.
44, P.D. No. 49a) (Emphasis supplied)
The determination of what constitutes fair use depends on several factors. Section
185 of the Intellectual Property Code states:

SECTION 185. Fair Use of a Copyrighted Work. —

185.1. The fair use of a copyrighted work for criticism, comment, news reporting,
teaching including multiple copies for classroom use, scholarship, research, and
similar purposes is not an infringement of copyright. ... In determining whether the
use made of a work in any particular case is fair use, the factors to be considered
shall include:

a. The purpose and character of the use, including whether such use is of a
commercial nature or is for non-profit educational purposes;
b. The nature of the copyrighted work;
c. The amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
d. The effect of the use upon the potential market for or value of the
copyrighted work.

Respondents allege that the news footage was only five (5) seconds long, thus
falling under fair use. ABS-CBN belies this contention and argues that the footage
aired for two (2) minutes and 40 seconds.[113] According to the Court of Appeals,
the parties admitted that only five (5) seconds of the news footage was
broadcasted by GMA-7.[114]

This court defined fair use as "a privilege to use the copyrighted material in a
reasonable manner without the consent of the copyright owner or as copying the
theme or ideas rather than their expression."[115] Fair use is an exception to the
copyright owner's monopoly of the use of the work to avoid stifling "the very
creativity which that law is designed to foster."[116]

Determining fair use requires application of the four-factor test. Section 185 of the
Intellectual Property Code lists four (4) factors to determine if there was fair use of
a copyrighted work:

a. The purpose and character of the use, including whether such use is of a
commercial nature or is for non-profit educational purposes;

b. The nature of the copyrighted work;

 c. The amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and

d. The effect of the use upon the potential market for or value of the
copyrighted work.

First, the purpose and character of the use of the copyrighted material must fall
under those listed in Section 185, thus: "criticism, comment, news reporting,
teaching including multiple copies for classroom use, scholarship, research, and
similar purposes."[117] The purpose and character requirement is important in view
of copyright's goal to promote creativity and encourage creation of works. Hence,
commercial use of the copyrighted work can be weighed against fair use.

The "transformative test" is generally used in reviewing the purpose and character
of the usage of the copyrighted work.[118] This court must look into whether the
copy of the work adds "new expression, meaning or message" to transform it into
something else.[119] "Meta-use" can also occur without necessarily transforming the
copyrighted work used.[120]

Second, the nature of the copyrighted work is significant in deciding whether its use
was fair. If the nature of the work is more factual than creative, then fair use will
be weighed in favor of the user.

Third, the amount and substantiality of the portion used is important to determine
whether usage falls under fair use. An exact reproduction of a copyrighted work,
compared to a small portion of it, can result in the conclusion that its use is not fair.
There may also be cases where, though the entirety of the copyrighted work is used
without consent, its purpose determines that the usage is still fair.121 For example,
a parody using a substantial amount of copyrighted work may be permissible as fair
use as opposed to a copy of a work produced purely for economic gain.

Lastly, the effect of the use on the copyrighted work's market is also weighed for or
against the user. If this court finds that the use had or will have a negative impact
on the copyrighted work's market, then the use is deemed unfair.

The structure and nature of broadcasting as a business requires assigned values for
each second of broadcast or airtime. In most cases, broadcasting organizations
generate revenue through sale of time or timeslots to advertisers, which, in turn, is
based on market share: [122]
Once a news broadcast has been transmitted, the broadcast becomes relatively
worthless to the station. In the case of the aerial broadcasters, advertising sales
generate most of the profits derived from news reports. Advertising rates are, in
turn, governed by market share. Market share is determined by the number of
people watching a show at any particular time, relative to total viewers at that
time. News is by nature time-limited, and so re-broadcasts are generally of little
worth because they draw few viewers. Newscasts compete for market share by
presenting their news in an appealing format that will capture a loyal
audience. Hence, the primary reason for copyrighting newscasts by broadcasters
would seem to be to prevent competing stations from rebroadcasting current news
from the station with the best coverage of a particular news item, thus
misappropriating a portion of the market share.

Of course, in the real world there are exceptions to this perfect economic
view. However, there are also many caveats with these exceptions. A common
exception is that some stations rebroadcast the news of others. The caveat is that
generally, the two stations are not competing for market share. CNN, for example,
often makes news stories available to local broadcasters. First, the local
broadcaster is often not affiliated with a network (hence its need for more
comprehensive programming), confining any possible competition to a small
geographical area. Second, the local broadcaster is not in competition with CNN.
Individuals who do not have cable TV (or a satellite dish with decoder) cannot
receive CNN; therefore there is no competition. . . . Third, CNN sells the right of
rebroadcast to the local stations. Ted Turner, owner of CNN, does not have First
Amendment freedom of access argument foremost on his mind. (Else he would give
everyone free cable TV so everyone could get CNN.) He is in the business for a
profit. Giving away resources does not a profit make.[123] (Emphasis supplied)
The high value afforded to limited time periods is also seen in other media. In social
media site Instagram, users are allowed to post up to only 15 seconds of
video.[124] In short-video sharing website Vine,[125] users are allowed a shorter
period of six (6) seconds per post. The mobile application 1 Second Everyday takes
it further by capturing and stitching one (1) second of video footage taken daily
over a span of a certain period.[126]

Whether the alleged five-second footage may be considered fair use is a matter of
defense. We emphasize that the case involves determination of probable cause at
the preliminary investigation stage. Raising the defense of fair use does not
automatically mean that no infringement was committed. The investigating
prosecutor has full discretion to evaluate the facts, allegations, and evidence during
preliminary investigation. Defenses raised during preliminary investigation are
subject to further proof and evaluation before the trial court. Given the insufficiency
of available evidence, determination of whether the Angelo dela Cruz footage is
subject to fair use is better left to the trial court where the proceedings are
currently pending.

GMA-7's rebroadcast of ABS-CBN's news footage without the latter's consent is not
an issue. The mere act of rebroadcasting without authority from the owner of the
broadcast gives rise to the probability that a crime was committed under the
Intellectual Property Code.

VII

Respondents cannot invoke the defense of good faith to argue that no probable
cause exists.

Respondents argue that copyright infringement is malum in se, in that "[c]opying

alone is not what is being prohibited, but its injurious effect which consists in the
lifting from the copyright owners' film or materials, that were the result of the
latter's creativity, work and productions and without authority, reproduced, sold
and circulated for commercial use to the detriment of the latter."[127]

Infringement under the Intellectual Property Code is malum prohibitum. The

Intellectual Property Code is a special law. Copyright is a statutory creation:
Copyright, in the strict sense of the term, is purely a statutory right. It is a new or
independent right granted by the statute, and not simply a pre-existing right
regulated by the statute. Being a statutory grant, the rights are only such as the
statute confers, and may be obtained and enjoyed only with respect to the subjects
and by the persons, and on terms and conditions specified in the statute.[128]
The general rule is that acts punished under a special law are malum
prohibitum.[129] "An act which is declared malum prohibitum, malice or criminal
intent is completely immaterial."[130]

In contrast, crimes mala in se concern inherently immoral acts:

Not every criminal act, however, involves moral turpitude. It is for this reason that
"as to what crime involves moral turpitude, is for the Supreme Court to determine".
In resolving the foregoing question, the Court is guided by one of the general rules
that crimes mala in se involve moral turpitude, while crimes mala prohibita do not,
the rationale of which was set forth in "Zari v. Flores" to wit:
It (moral turpitude) implies something immoral in itself, regardless of the fact that
it is punishable by law or not. It must not be merely mala prohibita, but the act
itself must be inherently immoral. The doing of the act itself, and not its prohibition
by statute fixes the moral turpitude. Moral turpitude does not, however, include
such acts as are not of themselves immoral but whose illegality lies in their being
positively prohibited. (Emphasis supplied)
[These] guidelines nonetheless proved short of providing a clear-cut solution, for
in International Rice Research Institute v. NLRC, the Court admitted that it cannot
always be ascertained whether moral turpitude does or does not exist by merely
classifying a crime as malum in se or as malum prohibitum. There are crimes which
are mala in se and yet but rarely involve moral turpitude and there are crimes
which involve moral turpitude and are mala prohibita only. In the final analysis,
whether or not a crime involves moral turpitude is ultimately a question of fact and
frequently depends on all the circumstances surrounding the violation of the
statue.[131] (Emphasis in the original)
"Implicit in the concept of mala in se is that of mens rea."[132] Mens rea is defined
as "the nonphysical element which, combined with the act of the accused, makes
up the crime charged. Most frequently it is the criminal intent, or the guilty
mind[.]"[133]

Crimes mala in se presuppose that the person who did the felonious act had
criminal intent to do so, while crimes mala prohibita do not require knowledge or
criminal intent:
In the case of mala in se it is necessary, to constitute a punishable offense, for the
person doing the act to have knowledge of the nature of his act and to have a
criminal intent; in the case of mala prohibita, unless such words as "knowingly" and
"willfully" are contained in the statute, neither knowledge nor criminal intent is
necessary. In other words, a person morally quite innocent and with every intention
of being a law-abiding citizen becomes a criminal, and liable to criminal penaltes, if
he does an act prohibited by these statutes.[134] (Emphasis supplied)
Hence, "[i]ntent to commit the crime and intent to perpetrate the act must be
distinguished. A person may not have consciously intended to commit a crime; but
he did intend to commit an act, and that act is, by the very nature of things, the
crime itself[.]"[135] When an act is prohibited by a special law, it is considered
injurious to public welfare, and the performance of the prohibited act is the crime
itself.[136]

Volition, or intent to commit the act, is different from criminal intent. Volition or
voluntariness refers to knowledge of the act being done. On the other hand,
criminal intent — which is different from motive, or the moving power for the
commission of the crime[137] — refers to the state of mind beyond voluntariness. It
is this intent that is being punished by crimes mala in se.

Unlike other jurisdictions that require intent for a criminal prosecution of copyright
infringement, the Philippines does not statutorily support good faith as a defense.
Other jurisdictions provide in their intellectual property codes or relevant laws
that mens rea, whether express or implied, is an element of criminal copyright
infringement.[138]

In Canada, criminal offenses are categorized under three (3) kinds: "the full mens
rea offence, meaning the accused's actual or subjective state of mind has to be
proved; strict liability offences where no mens rea has to be proved but the accused
can avoid liability if he can prove he took all reasonable steps to avoid the
particular event; [and] absolute liability offences where Parliament has made it
clear that guilt follows proof of the prescribed act only."[139] Because of the use of
the word "knowingly" in Canada's Copyright Act, it has been held that copyright
infringement is a full mens rea offense.[140]

In the United States, willful intent is required for criminal copyright

infringement.[141] Before the passage of the No Electronic Theft Act, "civil copyright
infringements were violations of criminal copyright laws only if a defendant willfully
infringed a copyright 'for purposes of commercial advantage or private financial
gain.'"[142] However, the No Electronic Theft Act now allows criminal copyright
infringement without the requirement of commercial gain. The infringing act may or
may not be for profit.[143]

There is a difference, however, between the required liability in civil copyright

infringement and that in criminal copyright infringement in the United States. Civil
copyright infringement does not require culpability and employs a strict liability
regime[144] where "lack of intention to infringe is not a defense to an action for
infringement."[145]

In the Philippines, the Intellectual Property Code, as amended, provides for the
prosecution of criminal actions for the following violations of intellectual property
rights: Repetition of Infringement of Patent (Section 84); Utility Model (Section
108); Industrial Design (Section 119); Trademark Infringement (Section 155 in
relation to Section 170); Unfair Competition (Section 168 in relation to Section
170); False Designations of Origin, False Description or Representation (Section
169.1 in relation to Section 170); infringement of copyright, moral rights,
performers' rights, producers' rights, and broadcasting rights (Section 177, 193,
203, 208 and 211 in relation to Section 217); and other violations of intellectual
property rights as may be defined by law.

The Intellectual Property Code requires strict liability for copyright infringement
whether for a civil action or a criminal prosecution; it does not require mens
rea or culpa:[146]
SECTION 216. Remedies for Infringement. —

216.1. Any person infringing a right protected under this law shall be liable:

a. To an injunction restraining such infringement. The court may also order the
defendant to desist from an infringement, among others, to prevent the
entry into the channels of commerce of imported goods that involve an
infringement, immediately after customs clearance of such goods.

b. Pay to the copyright proprietor or his assigns or heirs such actual damages,
including legal costs and other expenses, as he may have incurred due to the
infringement as well as the profits the infringer may have made due to such
infringement, and in proving profits the plaintiff shall be required to prove
sales only and the defendant shall be required to prove every element of
cost which he claims, or, in lieu of actual damages and profits, such damages
which to the court shall appear to be just and shall not be regarded as
penalty.

c. Deliver under oath, for impounding during the pendency of the action, upon
such terms and conditions as the court may prescribe, sales invoices and
other documents evidencing sales, all articles and their packaging alleged to
infringe a copyright and implements for making them.

d. Deliver under oath for destruction without any compensation all infringing
copies or devices, as well as all plates, molds, or other means for making
such infringing copies as the court may order.

e. Such other terms and conditions, including the payment of moral and
exemplary damages, which the court may deem proper, wise and equitable
and the destruction of infringing copies of the work even in the event of
acquittal in a criminal case.

216.2. In an infringement action, the court shall also have the power to order the
seizure and impounding of any article which may serve as evidence in the court
proceedings. (Sec. 28. P.D. No. 49a)

SECTION 217, Criminal Penalties. —

217.1. Any person infringing any right secured by provisions of Part IV of this Act or
aiding or abetting such infringement shall be guilty of a crime punishable by:

a. Imprisonment of one (1) year to three (3) years plus a fine ranging from
Fifty thousand pesos (P50,000) to One hundred fifty thousand pesos
(P150,000) for the first offense.

b. Imprisonment of three (3) years and one (1) day to six (6) years plus a fine
ranging from One hundred fifty thousand pesos (P150,000) to Five hundred
thousand pesos (P500,000) for the second offense.

c. Imprisonment of six (6) years and one (1) day to nine (9) years plus a fine
ranging from Five hundred thousand pesos (P500,000) to One million five
hundred thousand pesos (P1,500,000) for the third and subsequent
offenses.

d. In all cases, subsidiary imprisonment in cases of insolvency.

217.2. In determining the number of years of imprisonment and the amount of fine,
the court shall consider the value of the infringing materials that the defendant has
produced or manufactured and the damage that the copyright owner has suffered
by reason of the infringement.

217.3. Any person who at the time when copyright subsists in a work has in his
possession an article which he knows, or ought to know, to be an infringing copy of
the work for the purpose of:

a. Selling, letting for hire, or by way of trade offering or exposing for sale, or
hire, the article;

b. Distributing the article for purpose of trade, or for any other purpose to an
extent that will prejudice the rights of the copyright owner in the work; or

c. Trade exhibit of the article in public, shall be guilty of an offense and shall be
liable on conviction to imprisonment and fine as above mentioned. (Sec. 29,
P.D. No. 49a) (Emphasis supplied)

The law is clear. Inasmuch as there is wisdom in prioritizing the flow and exchange
of ideas as opposed to rewarding the creator, it is the plain reading of the law in
conjunction with the actions of the legislature to which we defer. We have
continuously "recognized the power of the legislature . . . to forbid certain acts in a
limited class of cases and to make their commission criminal without regard to the
intent of the doer. Such legislative enactments are based on the experience that
repressive measures which depend for their efficiency upon proof of the dealer's
knowledge or of his intent are of little use and rarely accomplish their
purposes."[147]
Respondents argue that live broadcast of news requires a different treatment in
terms of good faith, intent, and knowledge to commit infringement. To argue this
point, they rely on the differences of the media used in Habana et al. v. Robles,
Columbia Pictures v. Court of Appeals, and this case:
Petitioner ABS-CBN argues that lack of notice that the Angelo dela Cruz was under
embargo is not a defense in copyright infringement and cites the case of Columbia
Pictures vs. Court of Appeals and Habana et al. vs. Robles (310 SCRA 511).
However, these cases refer to film and literary work where obviously there is
"copying" from an existing material so that the copier knew that he is copying from
an existing material not owned by him. But, how could respondents know that what
they are "copying was not [theirs]" when they were not copying but merely
receiving live video feed from Reuters and CNN which they aired? What they knew
and what they aired was the Reuters live video feed and the CNN feed which
GMA-7 is authorized to carry in its news broadcast, it being a subscriber of these
companies[.]

It is apt to stress that the subject of the alleged copyright infringement is not a film
or literary work but live broadcast of news footage. In a film or literary work, the
infringer is confronted face to face with the material he is allegedly copying and
therefore knows, or is presumed to know, that what he is copying is owned by
another. Upon the other hand, in live broadcast, the alleged infringer
is not confronted with the fact that the material he airs or re-broadcasts is owned
by another, and therefore, he cannot be charged of knowledge of ownership of the
material by another. This specially obtains in the Angelo dela Cruz news footage
which GMA-7 received from Reuters and CNN. Reuters and CNN were beaming live
videos from the coverage which GMA-7 received as a subscriber and, in the
exercise of its rights as a subscriber, GMA-7 picked up the live video and
simultaneously re-broadcast it. In simultaneously broadcasting the live video
footage of Reuters, GMA-7 did not copy the video footage of petitioner ABS-
CBN[.][148] (Emphasis in the original)
Respondents' arguments must fail.

Respondents are involved and experienced in the broadcasting business. They knew
that there would be consequences in carrying A.BS-CBN's footage in their
broadcast. That is why GMA-7 allegedly cut the feed from Reuters upon seeing
ABS-CBN's logo and reporter. To admit a different treatment for broadcasts would
mean abandonment of a broadcasting organization's minimum rights, including
copyright on the broadcast material and the right against unauthorized re broadcast
of copyrighted material. The nature of broadcast technology is precisely why
related or neighboring rights were created and developed. Carving out an
exception for live broadcasts would go against our commitments under relevant
international treaties and agreements, which provide for the same minimum
rights.[149]

Contrary to respondents' assertion, this court in Habana,[150] reiterating the ruling

in Columbia Pictures,[151] ruled that lack of knowledge of infringement is not a valid
defense. Habana and Columbia Pictures may have different factual scenarios from
this case, but their rulings on copyright infringement are analogous.
In Habana, petitioners were the authors and copyright owners of English textbooks
and workbooks. The case was anchored on the protection of literary and artistic
creations such as books. In Columbia Pictures, video tapes of copyrighted films
were the subject of the copyright infringement suit.

In Habana, knowledge of the infringement is presumed when the infringer commits

the prohibited act:
The essence of intellectual piracy should be essayed in conceptual terms in order to
underscore its gravity by an appropriate understanding thereof. Infringement of a
copyright is a trespass on a private domain owned and occupied by the owner of
the copyright, and, therefore, protected by law, and infringement of copyright, or
piracy, which is a synonymous term in this connection, consists in the doing by any
person, without the consent of the owner of the copyright, of anything the sole
right to do which is conferred by statute on the owner of the copyright.

. . . .

A copy of a piracy is an infringement of the original, and it is no defense that the

pirate, in such cases, did not know whether or not he was infringing any
copyright; he at least knew that what he was copying was not his, and he copied at
his peril.

. . . .

In cases of infringement, copying alone is not what is prohibited. The copying must
produce an "injurious effect". Here, the injury consists in that respondent Robles
lifted from petitioners' book materials that were the result of the latter's research
work and compilation and misrepresented them as her own. She circulated the
book DEP for commercial use and did not acknowledge petitioners as her
source.[152] (Emphasis supplied)
Habana and Columbia Pictures did not require knowledge of the infringement to
constitute a violation of the copyright. One does not need to know that he or she is
copying a work without consent to violate copyright law. Notice of fact of the
embargo from Reuters or CNN is not material to find probable cause that
respondents committed infringement. Knowledge of infringement is only material
when the person is charged of aiding and abetting a copyright infringement under
Section 217 of the Intellectual Property Code.[153]

We look at the purpose of copyright in relation to criminal prosecutions requiring

willfulness:
Most importantly, in defining the contours of what it means to willfully infringe
copyright for purposes of criminal liability, the courts should remember the ultimate
aim of copyright. Copyright is not primarily about providing the strongest possible
protection for copyright owners so that they have the highest possible incentive to
create more works. The control given to copyright owners is only a means to an
end: the promotion of knowledge and learning. Achieving that underlying goal of
copyright law also requires access to copyrighted works and it requires permitting
certain kinds of uses of copyrighted works without the permission of the copyright
owner. While a particular defendant may appear to be deserving of criminal
sanctions, the standard for determining willfulness should be set with reference to
the larger goals of copyright embodied in the Constitution and the history of
copyright in this country.[154]
In addition, "[t]he essence of intellectual piracy should be essayed in conceptual
terms in order to underscore its gravity by an appropriate understanding thereof.
Infringement of a copyright is a trespass on a private domain owned and occupied
by the owner of the copyright, and, therefore, protected by law, and infringement
of copyright, or piracy, which is a synonymous term in this connection, consists in
the doing by any person, without the consent of the owner of the copyright, of
anything the sole right to do which is conferred by statute on the owner of the
copyright."[155]

Intellectual property rights, such as copyright and the neighboring right against
rebroadcasting, establish an artificial and limited monopoly to reward creativity.
Without these legally enforceable rights, creators will have extreme difficulty
recovering their costs and capturing the surplus or profit of their works as reflected
in their markets. This, in turn, is based on the theory that the possibility of gain due
to creative work creates an incentive which may improve efficiency or simply
enhance consumer welfare or utility. More creativity redounds to the public good.

These, however, depend on the certainty of enforcement. Creativity, by its very

nature, is vulnerable to the free rider problem. It is easily replicated despite the
costs to and efforts of the original creator. The more useful the creation is in the
market, the greater the propensity that it will be copied. The most creative and
inventive individuals are usually those who are unable to recover on their creations.

Arguments against strict liability presuppose that the Philippines has a social,
historical, and economic climate similar to those of Western jurisdictions. As it
stands, there is a current need to strengthen intellectual property protection.

Thus, unless clearly provided in the law, offenses involving infringement of

copyright protections should be considered malum prohibitum. It is the act of
infringement, not the intent, which causes the damage. To require or assume the
need to prove intent defeats the purpose of intellectual property protection.

Nevertheless, proof beyond reasonable doubt is still the standard for criminal
prosecutions under the Intellectual Property Code.

VIII

Respondents argue that GMA-7's officers and employees cannot be held liable for
infringement under the Intellectual Property Code since it does not expressly
provide direct liability of the corporate officers. They explain that "(i)
a corporation may be charged and prosecuted for a crime where the penalty is
fine or both imprisonment and fine, and if found guilty, may be fined; or (ii) a
corporation may commit a crime but if the statute prescribes the penalty therefore
to be suffered by the corporate officers, directors or employees or other persons,
the latter shall be responsible for the offense."[156]

Section 217 of the Intellectual Property Code states that "any person" may be
found guilty of infringement. It also imposes the penalty of both imprisonment and
fine:
Section 217. Criminal Penalties. - 217.1. Any person infringing any right secured by
provisions of Part IV of this Act or aiding or abetting such infringement shall be
guilty of a crime punishable by:
(a) Imprisonment of one (1) year to three (3) years plus a fine ranging from Fifty thousand
pesos (P50,000) to One hundred fifty thousand pesos (P150,000) for the first offense.

(b) Imprisonment of three (3) years and one (1) day to six (6) years plus a fine ranging from
One hundred fifty thousand pesos (P150,000) to Five hundred thousand pesos (P500,000)
for the second offense.

(c) Imprisonment of six (6) years and one (1) day to nine (9) years plus a fine ranging from five
hundred thousand pesos (P500,000) to One million five hundred thousand pesos
(P1,500,000) for the third and subsequent offenses.

(d) In all cases, subsidiary imprisonment in cases of insolvency. (Emphasis supplied)

Corporations have separate and distinct personalities from their officers or
directors.[157] This court has ruled that corporate officers and/or agents may be held
individually liable for a crime committed under the Intellectual Property Code:[158]
Petitioners, being corporate officers and/or directors, through whose act, default or
omission the corporation commits a crime, may themselves be individually held
answerable for the crime. . . . The existence of the corporate entity does not shield
from prosecution the corporate agent who knowingly and intentionally caused the
corporation to commit a crime. Thus, petitioners cannot hide behind the cloak of
the separate corporate personality of the corporation to escape criminal liability. A
corporate officer cannot protect himself behind a corporation where he is the actual,
present and efficient actor.[159]
However, the criminal liability of a. corporation's officers or employees stems from
their active participation in the commission of the wrongful act:
The principle applies whether or not the crime requires the consciousness of
wrongdoing. It applies to those corporate agents who themselves commit the crime
and to those, who, by virtue of their managerial positions or other similar relation
to the corporation, could be deemed responsible for its commission, if by virtue of
their relationship to the corporation, they had the power to prevent the act.
Moreover, all parties active in promoting a crime, whether agents or not, are
principals. Whether such officers or employees are benefited by their delictual acts
is not a touchstone of their criminal liability. Benefit is not an operative
fact. [160] (Emphasis supplied)
An accused's participation in criminal acts involving violations of intellectual
property rights is the subject of allegation and proof. The showing that the accused
did the acts or contributed in a meaningful way in the commission of the
infringements is certainly different from the argument of lack of intent or good
faith. Active participation requires a showing of overt physical acts or intention to
commit such acts. Intent or good faith, on the other hand, are inferences from acts
proven to have been or not been committed.

We find that the Department of Justice committed grave abuse of discretion when it
resolved to file the Information against respondents despite lack of proof of their
actual participation in the alleged crime.

Ordering the inclusion of respondents Gozon, GMA-7 President; Duavit, Jr.,

Executive Vice-President; Flores, Vice-President for News and Public Affairs; and
Soho, Director for News, as respondents, Secretary Agra overturned the City
Prosecutor's finding that only respondents Dela Peña-Reyes and Manalastas are
responsible for the crime charged due to their duties.[161] The Agra Resolution
reads:
Thus, from the very nature of the offense and the penalty involved, it is necessary
that GMA-7's directors, officers, employees or other officers thereof responsible for
the offense shall be charged and penalized for violation of the Sections 177 and 211
of Republic Act No. 8293. In their complaint for libel, respondents Felipe L Gozon,
Gilberto R. Duavit, Jr., Marissa L. Flores, Jessica A. Soho, Grace Dela Pena-Reyes,
John Oliver T. Manalastas felt they were aggrieved because they were "in charge of
the management, operations and production of news and public affairs programs of
the network" (GMA-7). This is clearly an admission on respondents' part. Of course,
respondents may argue they have no intention to infringe the copyright of ABS-
CBN; that they acted in good faith; and that they did not directly cause the airing of
the subject footage, but again this is preliminary investigation and what is required
is simply probable cause. Besides, these contentions can best be addressed in the
course of trial.[162] (Citation omitted)
In contrast, the Office of the City Prosecutor, in the Resolution dated December 3,
2004, found that respondents Gozon, Duavit, Jr., Flores, and Soho did not have
active participation in the commission of the crime charged:
This Office, however, does not subscribe to the view that respondents Atty. Felipe
Gozon, Gilberto Duavit, Marissa Flores and Jessica Soho should be held liable for
the said offense. Complainant failed to present clear and convincing evidence that
the said respondents conspired with Reyes and Manalastas. No evidence was
adduced to prove that these respondents had an active participation in the actual
commission of the copyright infringement or they exercised their moral ascendancy
over Reyes and Manalastas in airing the said footage. It must be stressed that,
conspiracy must be established by positive and conclusive evidence. It must be
shown to exist as clearly and convincingly as the commission of the offense
itself.[163] (Emphasis supplied, citations omitted)
The City Prosecutor found respondents Dela Peña-Reyes and Manalastas liable due
to the nature of their work and responsibilities. He found that:
[t]his Office however finds respondents Grace Déla Peña-Reyes and John Oliver T.
Manalastas liable for copyright infringement penalized under Republic Act No. 8293.
It is undisputed that complainant ABS-CBN holds the exclusive ownership and
copyright over the "Angelo [d]ela Cruz news footage". Hence, any airing and re-
broadcast of the said footage without any consent and authority from ABS-CBN will
be held as an infringement and violation of the intellectual property rights of the
latter. Respondents Grace Dela Peña-Reyes as the Head of the News Operation and
John Oliver T. Manalastas as the Program Manager cannot escape liability since the
news control room was under their direct control and supervision. Clearly, they
must have been aware that the said footage coming from Reuters or CNN has a "No
Access Philippines" advisory or embargo thus cannot be re-broadcast. We find no
merit to the defense of ignorance interposed by the respondents. It is simply
contrary to human experience and logic that experienced employees of an
established broadcasting network would be remiss in their duty in ascertaining if
the said footage has an embargo.[164] (Emphasis supplied)
We agree with the findings as to respondents Dela Peña-Reyes and Manalastas.
Both respondents committed acts that promoted infringement of ABS-CBN's
footage. We note that embargoes are common occurrences in and between news
agencies and/or broadcast organizations.[165] Under its Operations Guide, Reuters
has two (2) types of embargoes: transmission embargo and publication
embargo.[166] Under ABS-CBN's service contract with Reuters, Reuters will embargo
any content contributed by ABS-CBN from other broadcast subscribers within the
same geographical location:
4a. Contributed Content

You agree to supply us at our request with news and sports news stones broadcast
on the Client Service of up to three (3) minutes each for use in our Services on a
non-exclusive basis and at a cost of US$300.00 (Three Hundred United States
Dollars) per story. In respect of such items we agree to embargo them against use
by other broadcast subscribers in the Territory and confirm we will observe all other
conditions of usage regarding Contributed Content, as specified in Section 2.5 of
the Reuters Business Principles for Television Services. For the purposes of
clarification, any geographical restriction imposed by you on your use of
Contributed Content will not prevent us or our clients from including such
Contributed Content in online transmission services including the internet. We
acknowledge Contributed Content is your copyright and we will not acquire any
intellectual property rights in the Contributed Content.[167] (Emphasis supplied)
Respondents Dela Peña-Reyes and Manalastas merely denied receiving the advisory
sent by Reuters to its clients, including GMA-7. As in the records, the advisory
reads:
ADVISORY - - +++LIVE COVER PLANS+++
PHILIPPINES: HOSTAGE RETURN

* *ATTENTION ALL CLIENTS**

PLEASE BE ADVISED OF THE FOLLOWING LIVE COVER PLANNED FOR THURSDAY,

JULY 22:

. . . .

SOURCE: ABS-CBN
TV AND WEB RESTRICTIONS: NO ACCESS PHILIPPINES.[168]
There is probable cause that respondents Dela Peña-Reyes and Manalastas directly
committed copyright infringement of ABS-CBN's news footage to warrant piercing of
the corporate veil. They are responsible in airing the embargoed Angelo dela Cruz
footage. They could have prevented the act of infringement had they been diligent
in their functions as Head of News Operations and Program Manager.

Secretary Agra, however, committed grave abuse of discretion when he ordered the
filing of the Information against all respondents despite the erroneous piercing of
the corporate veil. Respondents Gozon, Duavit, Jr., Flores, and Soho cannot be held
liable for the criminal liability of the corporation.

Mere membership in the Board or being President per se does not mean knowledge,
approval, and participation in the act alleged as criminal. There must be a showing
of active participation, not simply a constructive one.

Under principles of criminal law, the principals of a crime are those "who take a
direct part in the execution of the act; [t]hose who directly force or induce others to
commit it; [or] [t]hose who cooperate in the commission of the offense by another
act without which it would not have been accomplished."[169] There is conspiracy
"when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it":[170]
Conspiracy is not presumed. Like the physical acts constituting the crime itself, the
elements of conspiracy must be proven beyond reasonable doubt. While conspiracy
need not be established by direct evidence, for it may be inferred from the conduct
of the accused before, during and after the commission of the crime, all taken
together, however, the evidence must be strong enough to show the community of
criminal design. For conspiracy to exist, it is essential that there must be a
conscious design to commit an offense. Conspiracy is the product of intentionality
on the part of the cohorts.

It is necessary that a conspirator should have performed some overt act as a direct
or indirect contribution to the execution of the crime committed. The overt act may
consist of active participation in the actual commission of the crime itself or it may
consist of moral assistance to his co-conspirators by being present at the
commission of the crime or by exerting moral ascendancy over the other co-
conspirators[.][171] (Emphasis supplied, citations omitted)
In sum, the trial court erred in failing to resume the proceedings after the
designated period. The Court of Appeals erred when it held that Secretary Agra
committed errors of jurisdiction despite its own pronouncement that ABS-CBN is the
owner of the copyright on the news footage. News should be differentiated from
expression of the news, particularly when the issue involves rebroadcast of news
footage. The Court of Appeals also erroneously held that good faith, as. well as lack
of knowledge of infringement, is a defense against criminal prosecution for
copyright and neighboring rights infringement. In its current form, the Intellectual
Property Code is malum prohibitum and prescribes a strict liability for copyright
infringement. Good faith, lack of knowledge of the copyright, or lack of intent to
infringe is not a defense against copyright infringement. Copyright, however, is
subject to the rules of fair use and will be judged on a case-to-case basis. Finding
probable cause includes a determination of the defendant's active participation,
particularly when the corporate veil is pierced in cases involving a corporation's
criminal liability.
WHEREFORE, the Petition is partially GRANTED. The Department of Justice
Resolution dated June 29, 2010 ordering the filing of the Information is
hereby REINSTATED as to respondents Grace Dela Peña-Reyes and John Oliver T.
Manalastas. Branch 93 of the Regional Trial Court of Quezon City is directed to
continue with the proceedings in Criminal Case No. Q-04-131533.

SO ORDERED.

EN BANC
[ G.R. Nos. 212140-41, January 21, 2015 ]
SENATOR JINGGOY EJERCITO ESTRADA, PETITIONER, VS.
BERSAMIN, OFFICE OF THE OMBUDSMAN, FIELD
INVESTIGATION OFFICE, OFFICE OF THE OMBUDSMAN,
NATIONAL BUREAU OF INVESTIGATION AND ATTY. LEVITO
D. BALIGOD, RESPONDENTS.

DECISION

CARPIO, J.:

It is a fundamental principle that the accused in a preliminary investigation has no

right to cross-examine the witnesses which the complainant may present. Section
3, Rule 112 of the Rules of Court expressly provides that the respondent
shall only have the right to submit a counter-affidavit, to examine all other
evidence submitted by the complainant and, where the fiscal sets a hearing to
propound clarificatory questions to the parties or their witnesses, to be afforded an
opportunity to be present but without the right to examine or cross-examine.

- Paderanga v. Drilon[1]
This case is a Petition for Certiorari[2] with prayer for (1) the issuance of a
temporary restraining order and/or Writ of Preliminary Injunction enjoining
respondents Office of the Ombudsman (Ombudsman), Field Investigation Office
(FIO) of the Ombudsman, National Bureau of Investigation (NBI), and Atty. Levito
D. Baligod (Atty. Baligod) (collectively, respondents), from conducting further
proceedings in OMB-C-C-13-03013 and OMB-C-C-13-0397 until the present Petition
has been resolved with finality; and (2) this Court’s declaration that petitioner
Senator Jinggoy Ejercito Estrada (Sen. Estrada) was denied due process of law, and
that the Order of the Ombudsman dated 27 March 2014 and the proceedings in
OMB-C-C-13-03013 and OMB-C-C-13-0397 subsequent to and affected by the
issuance of the challenged 27 March 2014 Order are void.
OMB-C-C-13-0313,[3] entitled National Bureau of Investigation and Atty. Levito D.
Baligod v. Jose “Jinggoy” P. Ejercito Estrada, et al., refers to the complaint for
Plunder as defined under Republic Act (RA) No. 7080, while OMB-C-C-13-
0397,[4] entitled Field Investigation Office, Office of the Ombudsman v. Jose
“Jinggoy” P. Ejercito-Estrada, et al., refers to the complaint for Plunder as defined
under RA No. 7080 and for violation of Section 3(e) of RA No. 3019 (Anti-Graft and
Corrupt Practices Act).

The Facts

On 25 November 2013, the Ombudsman served upon Sen. Estrada a copy of the
complaint in OMB-C-C-13-0313, filed by the NBI and Atty. Baligod, which prayed,
among others, that criminal proceedings for Plunder as defined in RA No. 7080 be
conducted against Sen. Estrada. Sen. Estrada filed his counter-affidavit in OMB-C-
C-13-0313 on 9 January 2014.

On 3 December 2013, the Ombudsman served upon Sen. Estrada a copy of the
complaint in OMB-C-C-13-0397, filed by the FIO of the Ombudsman, which prayed,
among others, that criminal proceedings for Plunder, as defined in RA No. 7080,
and for violation of Section 3(e) of RA No. 3019, be conducted against Sen.
Estrada. Sen. Estrada filed his counter-affidavit in OMB-C-C-13-0397 on 16 January
2014.

Eighteen of Sen. Estrada’s co-respondents in the two complaints filed their counter-
affidavits between 9 December 2013 and 14 March 2014.[5]

On 20 March 2014, Sen. Estrada filed his Request to be Furnished with Copies of
Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other
Filings (Request) in OMB-C-C-13-0313. In his Request, Sen. Estrada asked for
copies of the following documents:
(a) Affidavit of [co-respondent] Ruby Tuason (Tuason);
(b) Affidavit of [co-respondent] Dennis L. Cunanan (Cunanan);
(c) Counter-Affidavit of [co-respondent] Gondelina G. Amata (Amata);
(d) Counter-Affidavit of [co-respondent] Mario L. Relampagos (Relampagos);
(e) Consolidated Reply of complainant NBI, if one had been filed; and
(f) Affidavits/Counter-Affidavits/Pleadings/Filings filed by all the other respondents and/or
additional witnesses for the Complainants.[6]
Sen. Estrada’s request was made “[p]ursuant to the right of a respondent ‘to
examine the evidence submitted by the complainant which he may not have
been furnished’ (Section 3[b], Rule 112 of the Rules of Court) and to ‘have access
to the evidence on record’ (Section 4[c], Rule II of the Rules of Procedure of the
Office of the Ombudsman).”[7]

On 27 March 2014, the Ombudsman issued the assailed Order in OMB-C-C-13-

0313. The pertinent portions of the assailed Order read:
This Office finds however finds [sic] that the foregoing provisions [pertaining to
Section 3[b], Rule 112 of the Rules of Court and Section 4[c], Rule II of the Rules
of Procedure of the Office of the Ombudsman] do not entitle respondent [Sen.
Estrada] to be furnished all the filings of the respondents.

Rule 112 (3) (a) & (c) of the Rules of Court provides [sic]:
(a) The complaint shall state the address of the respondent and shall
be accompanied by the affidavits of the complainant and his witnesses, as
well as other supporting documents to establish probable cause …

xxx xxx xxx

(c) Within ten (10) days from receipt of the subpoena with the complaint and
supporting affidavits and documents, the respondent shall submit his counter-
affidavit and that of his witnesses and other supporting documents relied upon for
his defense. The counter-affidavits shall be subscribed and sworn to and certified as
provided in paragraph (a) of this section, with copies thereof furnished by him
to the complainant.
Further to quote the rule in furnishing copies of affidavits to parties under the Rules
of Procedure of the Office of the Ombudsman [Section 4 of Rule II of Administrative
Order No. 07 issued on April 10, 1990]:
a) If the complaint is not under oath or is based only on official reports, the
investigating officer shall require the complainant or supporting witnesses to
execute affidavits to substantiate the complaints.

b) After such affidavits have been secured, the investigating officer shall issue an
order, attaching thereto a copy of the affidavits and other supporting
documents, directing the respondents to submit, within ten (10) days from receipt
thereof, his counter-affidavits and controverting evidence with proof of service
thereof on the complainant. The complainant may file reply affidavits within ten
(10) days after service of the counter-affidavits.
It can be gleaned from these aforecited provisions that this Office is required to
furnish [Sen. Estrada] a copy of the Complaint and its supporting affidavits and
documents; and this Office complied with this requirement when it furnished [Sen.
Estrada] with the foregoing documents attached to the Orders to File Counter-
Affidavit dated 19 November 2013 and 25 November 2013.

It is to be noted that there is no provision under this Office’s Rules of Procedure

which entitles respondent to be furnished all the filings by the other parties, e.g.
the respondents. Ruby Tuason, Dennis Cunanan, Gondelina G. Amata and Mario L.
Relampagos themselves are all respondents in these cases. Under the Rules of
Court as well as the Rules of Procedure of the Office of the Ombudsman, the
respondents are only required to furnish their counter-affidavits and
controverting evidence to the complainant, and not to the other respondents.

To reiterate, the rights of respondent [Sen.] Estrada in the conduct of the

preliminary investigation depend on the rights granted to him by law and these
cannot be based on whatever rights he believes [that] he is entitled to or those that
may be derived from the phrase “due process of law.”
Thus, this Office cannot grant his motion to be furnished with copies of all the
filings by the other parties. Nevertheless, he should be furnished a copy of the
Reply of complainant NBI as he is entitled thereto under the rules; however, as of
this date, no Reply has been filed by complainant NBI.

WHEREFORE, respondent [Sen.] Estrada’s Request to be Furnished with Copies of

Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other
Filings is DENIED. He is nevertheless entitled to be furnished a copy of the Reply if
complainant opts to file such pleading.[8] (Emphases in the original)
On 28 March 2014, the Ombudsman issued in OMB-C-C-13-0313 and OMB-C-C-13-
0397 a Joint Resolution[9] which found probable cause to indict Sen. Estrada and his
co-respondents with one count of plunder and 11 counts of violation of Section 3(e)
of RA No. 3019. Sen. Estrada filed a Motion for Reconsideration (of the Joint
Resolution dated 28 March 2014) dated 7 April 2014. Sen. Estrada prayed for the
issuance of a new resolution dismissing the charges against him.

Without filing a Motion for Reconsideration of the Ombudsman’s 27 March

2014 Order denying his Request, Sen. Estrada filed the present Petition for
Certiorari under Rule 65 and sought to annul and set aside the 27 March 2014
Order.

THE ARGUMENTS

Sen. Estrada raised the following grounds in his Petition:

THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED ORDER DATED
27 MARCH 2014, ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION OR WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION AND VIOLATED SEN. ESTRADA'S CONSTITUTIONAL RIGHT TO DUE
PROCESS OF LAW.[10]
Sen. Estrada also claimed that under the circumstances, he has “no appeal or any
other plain, speedy, and adequate remedy in the ordinary course of law, except
through this Petition.”[11] Sen. Estrada applied for the issuance of a temporary
restraining order and/or writ of preliminary injunction to restrain public respondents
from conducting further proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397.
Finally, Sen. Estrada asked for a judgment declaring that (a) he has been denied
due process of law, and as a consequence thereof, (b) the Order dated 27 March
2014, as well as the proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397
subsequent to and affected by the issuance of the 27 March 2014 Order, are
void.[12]

On the same date, 7 May 2014, the Ombudsman issued in OMB-C-C-13-

0313 and OMB-C-C-13-0397 a Joint Order furnishing Sen. Estrada with the
counter-affidavits of Tuason, Cunanan, Amata, Relampagos, Francisco
Figura, Gregoria Buenaventura, and Alexis Sevidal, and directing him to
comment thereon within a non-extendible period of five days from receipt
of the order.

On 12 May 2014, Sen. Estrada filed before the Ombudsman a motion to suspend
proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397 because the denial of his
Request to be furnished copies of counter-affidavits of his co-respondents deprived
him of his right to procedural due process, and he has filed the present Petition
before this Court. The Ombudsman denied Sen. Estrada’s motion to suspend in an
Order dated 15 May 2014. Sen. Estrada filed a motion for reconsideration of the
Order dated 15 May 2014 but his motion was denied in an Order dated 3 June
2014.

As of 2 June 2014, the date of filing of the Ombudsman’s Comment to the

present Petition, Sen. Estrada had not filed a comment on the counter-
affidavits furnished to him. On 4 June 2014, the Ombudsman issued a Joint
Order in OMB-C-C-13-0313 and OMB-C-C-13-0397 denying, among other motions
filed by the other respondents, Sen. Estrada’s motion for reconsideration dated 7
April 2014. The pertinent portion of the 4 June 2014 Joint Order stated:
While it is true that Senator Estrada’s request for copies of Tuason, Cunanan,
Amata, Relampagos, Figura, Buenaventura and Sevidal’s affidavits was denied by
Order dated 27 March 2014 and before the promulgation of the assailed Joint
Resolution, this Office thereafter re-evaluated the request and granted it by Order
dated 7 May 2014 granting his request. Copies of the requested counter-affidavits
were appended to the copy of the Order dated 7 May 2014 transmitted to Senator
Estrada through counsel.

This Office, in fact, held in abeyance the disposition of the motions for
reconsideration in this proceeding in light of its grant to Senator Estrada a
period of five days from receipt of the 7 May 2014 Order to formally
respond to the above-named co-respondents’ claims.

In view of the foregoing, this Office fails to see how Senator Estrada was deprived
of his right to procedural due process.[13] (Emphasis supplied)
On 2 June 2014, the Ombudsman, the FIO, and the NBI (collectively, public
respondents), through the Office of the Solicitor General, filed their Comment to the
present Petition. The public respondents argued that:
I. PETITIONER [SEN. ESTRADA] WAS NOT DENIED DUE PROCESS OF LAW.

II. THE PETITION FOR CERTIORARI IS PROCEDURALLY INFIRM.

A. LITIS PENDENTIA EXISTS IN THIS CASE.

B. PETITIONER HAS A PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY

COURSE OF LAW.
III. PETITIONER IS NOT ENTITLED TO A WRIT OF PRELIMINARY INJUNCTION
AND/OR TEMPORARY RESTRAINING ORDER.[14]
On 6 June 2014, Atty. Baligod filed his Comment to the present Petition. Atty.
Baligod stated that Sen. Estrada’s resort to a Petition for Certiorari under Rule 65 is
improper. Sen. Estrada should have either filed a motion for reconsideration of the
27 March 2014 Order or incorporated the alleged irregularity in his motion for
reconsideration of the 28 March 2014 Joint Resolution. There was also no violation
of Sen. Estrada’s right to due process because there is no rule which mandates that
a respondent such as Sen. Estrada be furnished with copies of the submissions of
his co-respondents.

On 16 June 2014, Sen. Estrada filed his Reply to the public respondents’ Comment.
Sen. Estrada insisted that he was denied due process. Although Sen. Estrada
received copies of the counter-affidavits of Cunanan, Amata, Relampagos,
Buenaventura, Figura, Sevidal, as well as one of Tuason’s counter-affidavits, he
claimed that he was not given the following documents:
a) One other Counter-Affidavit of Ruby Tuason dated 21 February 2014;

b) Counter-Affidavit of Sofia D. Cruz dated 31 January 2014;

c) Counter-Affidavit of Evelyn Sugcang dated 11 February 2014;

d) Two (2) Counter-Affidavits of Alan A. Javellana dated 06 February 2014;

e) Counter-Affidavit of Victor Roman Cojamco Cacal dated 11 December 2013 (to

the FIO Complaint);

f) Counter-Affidavit of Victor Roman Cojamco Cacal dated 22 January 2014 (to the
NBI Complaint);

g) Two (2) counter-affidavits of Ma. Julie A. Villaralvo-Johnson both dated 14 March

2014;

h) Counter-affidavit of Rhodora Bulatad Mendoza dated 06 March 2014;

i) Counter-affidavit of Maria Ninez P. Guañizo dated 28 January 2014;

j) Two (2) counter-affidavits of Marivic V. Jover both dated 09 December 2013; and

k) Counter-affidavit of Francisco B. Figura dated 08 January 2014.

Sen. Estrada argues that the Petition is not rendered moot by the subsequent
issuance of the 7 May 2014 Joint Order because there is a recurring violation of his
right to due process. Sen. Estrada also insists that there is no forum shopping as
the present Petition arose from an incident in the main proceeding, and that he has
no other plain, speedy, and adequate remedy in the ordinary course of law. Finally,
Sen. Estrada reiterates his application for the issuance of a temporary restraining
order and/or writ of preliminary injunction to restrain public respondents from
conducting further proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397.

This Court’s Ruling

Considering the facts narrated above, the Ombudsman’s denial in its 27 March 2014
Order of Sen. Estrada’s Request did not constitute grave abuse of discretion.
Indeed, the denial did not violate Sen. Estrada’s constitutional right to due process.

First. There is no law or rule which requires the Ombudsman to furnish a

respondent with copies of the counter-affidavits of his co-respondents.
We reproduce below Sections 3 and 4, Rule 112 of the Revised Rules of Criminal
Procedure, as well as Rule II of Administrative Order No. 7, Rules of Procedure of
the Office of the Ombudsman, for ready reference.
From the Revised Rules of Criminal Procedure, Rule 112: Preliminary Investigation

Section 3. Procedure. — The preliminary investigation shall be conducted in the

following manner:

(a) The complaint shall state the address of the respondent and shall
be accompanied by the affidavits of the complainant and his witnesses, as
well as other supporting documents to establish probable cause. They shall
be in such number of copies as there are respondents, plus two (2) copies for the
official file. The affidavits shall be subscribed and sworn to before any prosecutor or
government official authorized to administer oath, or, in their absence or
unavailability, before a notary public, each of 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 it if he finds no ground to continue with the investigation, or
issue a subpoena to the respondent attaching to it a copy of the complaint and its
supporting affidavits and documents.

The respondent shall have the right to examine the evidence submitted by
the complainant which he may not have been furnished and to copy them
at his expense. If the evidence is voluminous, the complainant may be required to
specify those which he intends to present against the respondent, and these shall
be made available for examination or copying by the respondent at his expense.

Objects as evidence need not be furnished a party but shall be made available for
examination, copying, or photographing at the expense of the requesting party.

(c) Within ten (10) days from receipt of the subpoena with the complaint and
supporting affidavits and documents, the respondent shall submit his counter-
affidavit and that of his witnesses and other supporting documents relied upon for
his defense. The counter-affidavits shall be subscribed and sworn to and certified as
provided in paragraph (a) of this section, with copies thereof furnished by him to
the complainant. The respondent shall not be allowed to file a motion to dismiss in
lieu of a counter-affidavit.

(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
resolve the complaint based on the evidence presented by the complainant.

(e) The investigating officer may set a hearing if there are facts and issues to be
clarified from a party or a witness. The parties can be present at the hearing but
without the right to examine or cross-examine. They may, however, submit to the
investigating officer questions which may be asked to the party or witness
concerned.

The hearing shall be held within ten (10) days from submission of the counter-
affidavits and other documents or from the expiration of the period for their
submission. It shall be terminated within five (5) days.

(f) Within ten (10) days after the investigation, the investigating officer shall
determine whether or not there is sufficient ground to hold the respondent for trial.

Section 4. Resolution of investigating prosecutor and its review. — If the

investigating prosecutor finds cause to hold the respondent for trial, he shall
prepare the resolution and information. He shall certify under oath in the
information 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; that the accused was informed of the complaint and
of the evidence submitted against him; and that he was given an opportunity
to submit controverting evidence. Otherwise, he shall recommend the dismissal of
the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to
the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or
his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of
its original jurisdiction. They shall act on the resolution within ten (10) days from
their receipt thereof and shall immediately inform the parties of such action.

No complaint or information may be filed or dismissed by an investigating

prosecutor without the prior written authority or approval of the provincial or city
prosecutor or chief state prosecutor or the Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but
his recommendation is disapproved by the provincial or city prosecutor or chief
state prosecutor or the Ombudsman or his deputy on the ground that a probable
cause exists, the latter may, by himself, file the information against the
respondent, or direct any other assistant prosecutor or state prosecutor to do so
without conducting another preliminary investigation.

If upon petition by a proper party under such rules as the Department of Justice
may prescribe or motu proprio, the Secretary of Justice reverses or modifies the
resolution of the provincial or city prosecutor or chief state prosecutor, he shall
direct the prosecutor concerned either to file the corresponding information without
conducting another preliminary investigation, or to dismiss or move for dismissal of
the complaint or information with notice to the parties. The same rule shall apply in
preliminary investigations conducted by the officers of the Office of the
Ombudsman.

From the Rules of Procedure of the Office of the Ombudsman, Administrative Order
No. 7, Rule II: Procedure in Criminal Cases

Section 1. Grounds. — A criminal complaint may be brought for an offense in

violation of R.A. 3019, as amended, R.A. 1379, as amended, R.A. 6713, Title VII,
Chapter II, Section 2 of the Revised Penal Code, and for such other offenses
committed by public officers and employees in relation to office.

Sec. 2. Evaluation. — Upon evaluating the complaint, the investigating officer shall
recommend whether it may be:

a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) indorsed to the proper government office or agency which has jurisdiction over
the case;

d) forwarded to the appropriate office or official for fact-finding investigation;

e) referred for administrative adjudication; or

f) subjected to a preliminary investigation.

Sec. 3. Preliminary investigation; who may conduct. — Preliminary investigation

may be conducted by any of the following:

1) Ombudsman Investigators;

2) Special Prosecuting Officers;

3) Deputized Prosecutors;

4) Investigating Officials authorized by law to conduct preliminary investigations; or

5) Lawyers in the government service, so designated by the Ombudsman.

Sec. 4. Procedure. — The preliminary investigation of cases falling under the

jurisdiction of the Sandiganbayan and Regional Trial Courts shall be conducted in
the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to the
following provisions:

a) If the complaint is not under oath or is based only on official reports, the
investigating officer shall require the complainant or supporting witnesses
to execute affidavits to substantiate the complaints.

b) After such affidavits have been secured, the investigating officer shall
issue an order, attaching thereto a copy of the affidavits and other
supporting documents, directing the respondent to submit, within ten (10)
days from receipt thereof, his counter-affidavits and controverting
evidence with proof of service thereof on the complainant. The complainant
may file reply affidavits within ten (10) days after service of the counter-affidavits.

c) If the respondent does not file a counter-affidavit, the investigating officer may
consider the comment filed by him, if any, as his answer to the complaint. In any
event, the respondent shall have access to the evidence on record.

d) No motion to dismiss shall be allowed except for lack of jurisdiction. Neither may
a motion for a bill of particulars be entertained. If respondent desires any matter in
the complainant’s affidavit to be clarified, the particularization thereof may be done
at the time of clarificatory questioning in the manner provided in paragraph (f) of
this section.

e) If the respondent cannot be served with the order mentioned in paragraph 6

hereof, or having been served, does not comply therewith, the complaint shall be
deemed submitted for resolution on the basis of the evidence on record.

f) If, after the filing of the requisite affidavits and their supporting evidences, there
are facts material to the case which the investigating officer may need to be
clarified on, he may conduct a clarificatory hearing during which the parties shall be
afforded the opportunity to be present but without the right to examine or cross-
examine the witness being questioned. Where the appearance of the parties or
witnesses is impracticable, the clarificatory questioning may be conducted in
writing, whereby the questions desired to be asked by the investigating officer or a
party shall be reduced into writing and served on the witness concerned who shall
be required to answer the same in writing and under oath.

g) Upon the termination of the preliminary investigation, the investigating officer

shall forward the records of the case together with his resolution to the designated
authorities for their appropriate action thereon.

No information may be filed and no complaint may be dismissed without the written
authority or approval of the Ombudsman in cases falling within the jurisdiction of
the Sandiganbayan, or of the proper Deputy Ombudsman in all other cases.

xxxx

Sec. 6. Notice to parties. — The parties shall be served with a copy of the resolution
as finally approved by the Ombudsman or by the proper Deputy Ombudsman.

Sec. 7. Motion for reconsideration. — a) Only one (1) motion for reconsideration or
reinvestigation of an approved order or resolution shall be allowed, the same to be
filed within fifteen (15) days from notice thereof with the Office of the Ombudsman,
or the proper deputy ombudsman as the case may be.

xxxx
b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing
of the corresponding Information in court on the basis of the finding of probable
cause in the resolution subject of the motion. (Emphasis supplied)
Sen. Estrada claims that the denial of his Request for the counter-affidavits of his
co-respondents violates his constitutional right to due process. Sen. Estrada,
however, fails to specify a law or rule which states that it is a compulsory
requirement of due process in a preliminary investigation that the
Ombudsman furnish a respondent with the counter-affidavits of his co-
respondents. Neither Section 3(b), Rule 112 of the Revised Rules of Criminal
Procedure nor Section 4(c), Rule II of the Rules of Procedure of the Office of the
Ombudsman supports Sen. Estrada’s claim.

What the Rules of Procedure of the Office of the Ombudsman require is for the
Ombudsman to furnish the respondent with a copy of the complaint and the
supporting affidavits and documents at the time the order to submit the
counter-affidavit is issued to the respondent. This is clear from Section 4(b),
Rule II of the Rules of Procedure of the Office of the Ombudsman when it states,
“[a]fter such affidavits [of the complainant and his witnesses] have been secured,
the investigating officer shall issue an order, attaching thereto a copy of the
affidavits and other supporting documents, directing the respondent to submit,
within ten (10) days from receipt thereof, his counter-affidavits x x x.” At this point,
there is still no counter-affidavit submitted by any respondent. Clearly, what
Section 4(b) refers to are affidavits of the complainant and his witnesses,
not the affidavits of the co-respondents. Obviously, the counter-affidavits of
the co-respondents are not part of the supporting affidavits of the complainant. No
grave abuse of discretion can thus be attributed to the Ombudsman for the
issuance of the 27 March 2014 Order which denied Sen. Estrada’s Request.

Although Section 4(c), Rule II of the Rules of Procedure of the Office of the
Ombudsman provides that a respondent “shall have access to the evidence on
record,” this provision should be construed in relation to Section 4(a) and (b) of
the same Rule, as well as to the Rules of Criminal Procedure. First, Section 4(a)
states that “the investigating officer shall require the complainant or supporting
witnesses to execute affidavits to substantiate the complaint.” The “supporting
witnesses” are the witnesses of the complainant, and do not refer to the co-
respondents.

Second, Section 4(b) states that “the investigating officer shall issue an order
attaching thereto a copy of the affidavits and all other supporting documents,
directing the respondent” to submit his counter-affidavit. The affidavits referred to
in Section 4(b) are the affidavits mentioned in Section 4(a). Clearly, the affidavits
to be furnished to the respondent are the affidavits of the complainant and his
supporting witnesses. The provision in the immediately succeeding Section 4(c) of
the same Rule II that a respondent shall have “access to the evidence on record”
does not stand alone, but should be read in relation to the provisions of Section 4(a
and b) of the same Rule II requiring the investigating officer to furnish the
respondent with the “affidavits and other supporting documents” submitted by “the
complainant or supporting witnesses.” Thus, a respondent’s “access to evidence
on record” in Section 4(c), Rule II of the Ombudsman’s Rules of Procedure refers to
the affidavits and supporting documents of “the complainant or supporting
witnesses” in Section 4(a) of the same Rule II.

Third, Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure provides
that “[t]he respondent shall have the right to examine the evidence submitted
by the complainant which he may not have been furnished and to copy them at
his expense.” A respondent’s right to examine refers only to “the evidence
submitted by the complainant.”

Thus, whether under Rule 112 of the Revised Rules of Criminal Procedure or under
Rule II of the Ombudsman’s Rules of Procedure, there is no requirement
whatsoever that the affidavits executed by the co-respondents should be furnished
to a respondent.

Justice Velasco’s dissent relies on the ruling in Office of the Ombudsman v.

Reyes (Reyes case),[15] an administrative case, in which a different set of rules of
procedure and standards apply. Sen. Estrada’s Petition, in contrast, involves the
preliminary investigation stage in a criminal case. Rule III on the Procedure
in Administrative Cases of the Rules of Procedure of the Office of the Ombudsman
applies in the Reyes case, while Rule II on the Procedure in Criminal Cases of the
Rules of Procedure of the Office of the Ombudsman applies in Sen. Estrada’s
Petition. In both cases, the Rules of Court apply in a suppletory character or by
analogy.[16]

In the Reyes case, the complainant Acero executed an affidavit against Reyes and
Peñaloza, who were both employees of the Land Transportation Office. Peñaloza
submitted his counter-affidavit, as well as those of his two witnesses. Reyes
adopted his counter-affidavit in another case before the Ombudsman as it involved
the same parties and the same incident. None of the parties appeared during the
preliminary conference. Peñaloza waived his right to a formal investigation and was
willing to submit the case for resolution based on the evidence on record. Peñaloza
also submitted a counter-affidavit of his third witness. The Ombudsman found
Reyes guilty of grave misconduct and dismissed him from the service. On the other
hand, Peñaloza was found guilty of simple misconduct and penalized with
suspension from office without pay for six months. This Court agreed with the Court
of Appeals’ finding that Reyes’ right to due process was indeed violated. This Court
remanded the records of the case to the Ombudsman, for two reasons: (1) Reyes
should not have been meted the penalty of dismissal from the service when the
evidence was not substantial, an d (2) there was disregard of Reyes’ right to due
process because he was not furnished a copy of the counter-affidavits of Peñaloza
and of Peñaloza’s three witnesses. In the Reyes case, failure to furnish a copy
of the counter-affidavits happened in the administrative proceedings on
the merits, which resulted in Reyes’ dismissal from the service. In Sen.
Estrada’s Petition, the denial of his Request happened during the preliminary
investigation where the only issue is the existence of probable cause for the
purpose of determining whether an information should be filed, and does not
prevent Sen. Estrada from requesting a copy of the counter-affidavits of his co-
respondents during the pre-trial or even during the trial.

We should remember to consider the differences in adjudicating cases, particularly

an administrative case and a criminal case:
Any lawyer worth his salt knows that quanta of proof and adjective rules vary
depending on whether the cases to which they are meant to apply are criminal, civil
or administrative in character. In criminal actions, proof beyond reasonable doubt is
required for conviction; in civil actions and proceedings, preponderance of evidence,
as support for a judgment; and in administrative cases, substantial evidence, as
basis for adjudication. In criminal and civil actions, application of the Rules of Court
is called for, with more or less strictness. In administrative proceedings, however,
the technical rules of pleading and procedure, and of evidence, are not strictly
adhered to; they generally apply only suppletorily; indeed, in agrarian disputes
application of the Rules of Court is actually prohibited.[17]
It should be underscored that the conduct of a preliminary investigation is only for
the determination of probable cause, and “probable cause merely implies
probability of guilt and should be determined in a summary manner. A preliminary
investigation is not a part of the 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.”[18] Thus, the rights of a
respondent in a preliminary investigation are limited to those granted by procedural
law.
A preliminary investigation is defined as an inquiry or proceeding for the purpose of
determining whether there is sufficient ground to engender a well founded 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. The
quantum of evidence now required in preliminary investigation is such
evidence sufficient to “engender a well founded belief” as to the fact of the
commission of a crime and the respondent's probable guilt thereof. A
preliminary investigation is not the occasion for the full and exhaustive
display of the parties’ evidence; it is for the presentation of such evidence
only as may engender a well-grounded belief that an offense has been
committed and that the accused is probably guilty thereof. We are in accord
with the state prosecutor’s findings in the case at bar that there exists prima facie
evidence of petitioner’s involvement in the commission of the crime, it being
sufficiently supported by the evidence presented and the facts obtaining therein.

Likewise devoid of cogency is petitioner’s argument that the testimonies of Galarion

and Hanopol are inadmissible as to him since he was not granted the opportunity of
cross-examination.

It is a fundamental principle that the accused in a preliminary investigation

has no right to cross-examine the witnesses which the complainant may
present. Section 3, Rule 112 of the Rules of Court expressly provides that
the respondent shall only have the right to submit a counter-affidavit, to
examine all other evidence submitted by the complainant and, where the
fiscal sets a hearing to propound clarificatory questions to the parties or
their witnesses, to be afforded an opportunity to be present but without
the right to examine or cross-examine. Thus, even if petitioner was not given
the opportunity to cross-examine Galarion and Hanopol at the time they were
presented to testify during the separate trial of the case against Galarion and
Roxas, he cannot assert any legal right to cross-examine them at the preliminary
investigation precisely because such right was never available to him. The
admissibility or inadmissibility of said testimonies should be ventilated before the
trial court during the trial proper and not in the preliminary investigation.

Furthermore, the technical rules on evidence are not binding on the fiscal
who has jurisdiction and control over the conduct of a preliminary
investigation. If by its very nature a preliminary investigation could be waived by
the accused, we find no compelling justification for a strict application of
the evidentiary rules. In addition, considering that under Section 8, Rule 112 of
the Rules of Court, the record of the preliminary investigation does not form part of
the record of the case in the Regional Trial Court, then the testimonies of Galarion
and Hanopol may not be admitted by the trial court if not presented in evidence by
the prosecuting fiscal. And, even if the prosecution does present such testimonies,
petitioner can always object thereto and the trial court can rule on the admissibility
thereof; or the petitioner can, during the trial, petition said court to compel the
presentation of Galarion and Hanopol for purposes of cross-
examination.[19] (Emphasis supplied)
Furthermore, in citing the Reyes case, Justice Velasco’s dissent overlooked a vital
portion of the Court of Appeals’ reasoning. This Court quoted from the Court of
Appeals’ decision: “x x x [A]dmissions made by Peñaloza in his sworn statement
are binding only on him. Res inter alios acta alteri nocere non debet. The rights of a
party cannot be prejudiced by an act, declaration or omission of another.” In OMB-
C-C-13-0313 and OMB-C-C-13-0397, the admissions of Sen. Estrada’s co-
respondents can in no way prejudice Sen. Estrada. Even granting Justice
Velasco’s argument that the 28 March 2014 Joint Resolution in OMB-C-C-13-0313
and OMB-C-C-13-0397[20] mentioned the testimonies of Sen. Estrada’s co-
respondents like Tuason and Cunanan, their testimonies were merely corroborative
of the testimonies of complainants’ witnesses Benhur Luy, Marina Sula, and Merlina
Suñas and were not mentioned in isolation from the testimonies of complainants’
witnesses.

Moreover, the sufficiency of the evidence put forward by the Ombudsman against
Sen. Estrada to establish its finding of probable cause in the 28 March 2014 Joint
Resolution in OMB-C-C-13-0313 and OMB-C-C-13-0397 was judicially confirmed by
the Sandiganbayan, when it examined the evidence, found probable cause, and
issued a warrant of arrest against Sen. Estrada on 23 June 2014.

We likewise take exception to Justice Brion’s assertion that “the due process
standards that at the very least should be considered in the conduct of a
preliminary investigation are those that this Court first articulated in Ang
Tibay v. Court of Industrial Relations [Ang Tibay].”[21] Simply put, the Ang
Tibay guidelines for administrative cases do not apply to preliminary investigations
in criminal cases. An application of the Ang Tibay guidelines to preliminary
investigations will have absurd and disastrous consequences.

Ang Tibay enumerated the constitutional requirements of due process, which Ang
Tibay described as the “fundamental and essential requirements of due
process in trials and investigations of an administrative character.”[22] These
requirements are “fundamental and essential” because without these, there is
no due process as mandated by the Constitution. These “fundamental and essential
requirements” cannot be taken away by legislation because they are part of
constitutional due process. These “fundamental and essential requirements” are:
(1) The first of these rights is the right to a hearing, which includes the right of the
party interested or affected to present his own case and submit evidence in support
thereof. x x x.

(2) Not only must the party be given an opportunity to present his case and adduce
evidence tending to establish the rights which he asserts but the tribunal must
consider the evidence presented. x x x.

(3) “While the duty to deliberate does not impose the obligation to decide right, it
does imply a necessity which cannot be disregarded, namely, that of having
something to support its decision. A decision with absolutely nothing to support it is
a nullity, x x x.”

(4) Not only must there be some evidence to support a finding or conclusion, but
the evidence must be “substantial.” “Substantial evidence is more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” x x x.

(5) The decision must be rendered on the evidence presented at the hearing, or at
least contained in the record and disclosed to the parties affected. x x x.

(6) The Court of Industrial Relations or any of its judges, therefore, must act on its
or his own independent consideration of the law and facts of the controversy, and
not simply accept the views of a subordinate in arriving at a decision. x x x.

(7) The Court of Industrial Relations should, in all controversial questions, render
its decision in such a manner that the parties to the proceeding can know the
various issues involved, and the reasons for the decisions rendered. The
performance of this duty is inseparable from the authority conferred upon it.[23]
The guidelines set forth in Ang Tibay are further clarified in GSIS v. CA[24] (GSIS):
“what Ang Tibay failed to explicitly state was, prescinding from the general
principles governing due process, the requirement of an impartial
tribunal which, needless to say, dictates that one called upon to resolve a dispute
may not sit as judge and jury simultaneously, neither may he review his decision
on appeal.”[25] The GSIS clarification affirms the non-applicability of the Ang
Tibay guidelines to preliminary investigations in criminal cases: The investigating
officer, which is the role that the Office of the Ombudsman plays in the
investigation and prosecution of government personnel, will never be the impartial
tribunal required in Ang Tibay, as amplified in GSIS. The purpose of the Office of
the Ombudsman in conducting a preliminary investigation, after conducting its
own fact-finding investigation, is to determine probable cause for filing an
information, and not to make a final adjudication of the rights and obligations of the
parties under the law, which is the purpose of the guidelines in Ang Tibay. The
investigating officer investigates, determines probable cause, and
prosecutes the criminal case after filing the corresponding information.

The purpose in determining probable cause is to make sure that the courts are not
clogged with weak cases that will only be dismissed, as well as to spare a person
from the travails of a needless prosecution.[26] The Ombudsman and the
prosecution service under the control and supervision of the Secretary of the
Department of Justice are inherently the fact-finder, investigator, hearing officer,
judge and jury of the respondent in preliminary investigations. Obviously, this
procedure cannot comply with Ang Tibay, as amplified in GSIS. However, there is
nothing unconstitutional with this procedure because this is merely an Executive
function, a part of the law enforcement process leading to trial in court where the
requirements mandated in Ang Tibay, as amplified in GSIS, will apply. This has
been the procedure under the 1935, 1973 and 1987 Constitutions. To now rule
that Ang Tibay, as amplified in GSIS, should apply to preliminary investigations will
mean that all past and present preliminary investigations are in gross violation of
constitutional due process.

Moreover, a person under preliminary investigation, as Sen. Estrada is in the

present case when he filed his Request, is not yet an accused person, and hence
cannot demand the full exercise of the rights of an accused person:
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 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.[27]
Justice J.B.L. Reyes, writing for the Court, emphatically declared in Lozada v.
Hernandez,[28] that the “rights conferred upon accused persons to participate
in preliminary investigations concerning themselves depend upon the
provisions of law by which such rights are specifically secured, rather than
upon the phrase ‘due process of law’.” This reiterates Justice Jose P. Laurel’s
oft-quoted pronouncement in Hashim v. Boncan[29] that “the right to a
preliminary investigation is statutory, not constitutional.” In short, the rights
of a respondent in a preliminary investigation are merely statutory rights, not
constitutional due process rights. An investigation to determine probable cause for
the filing of an information does not initiate a criminal action so as to trigger into
operation Section 14(2), Article III of the Constitution.[30] It is the filing of a
complaint or information in court that initiates a criminal action.[31]

The rights to due process in administrative cases as prescribed in Ang Tibay, as

amplified in GSIS, are granted by the Constitution; hence, these rights cannot be
taken away by mere legislation. On the other hand, as repeatedly reiterated by this
Court, the right to a preliminary investigation is merely a statutory right,[32] not
part of the “fundamental and essential requirements” of due process as prescribed
in Ang Tibay and amplified in GSIS. Thus, a preliminary investigation can be taken
away by legislation. The constitutional right of an accused to confront the witnesses
against him does not apply in preliminary investigations; nor will the absence of a
preliminary investigation be an infringement of his right to confront the witnesses
against him.[33] A preliminary investigation may be done away with entirely without
infringing the constitutional right of an accused under the due process clause to a
fair trial.[34]

The quantum of evidence needed in Ang Tibay, as amplified in GSIS, is greater than
the evidence needed in a preliminary investigation to establish probable cause, or
to establish the existence of a prima facie case that would warrant the prosecution
of a case. Ang Tibay refers to “substantial evidence,” while the establishment of
probable cause needs “only more than ‘bare suspicion,’ or ‘less than evidence which
would justify . . . conviction’.” In the United States, from where we borrowed the
concept of probable cause,[35] the prevailing definition of probable cause is this:
In dealing with probable cause, however, as the very name implies, we deal with
probabilities. These are not technical; they are the factual and practical
considerations of everyday life on which reasonable and prudent men, not legal
technicians, act. The standard of proof is accordingly correlative to what must be
proved.

“The substance of all the definitions” of probable cause “is a reasonable ground for
belief of guilt.” McCarthy v. De Armit, 99 Pa. St. 63, 69, quoted with approval in
the Carroll opinion. 267 U. S. at 161. And this “means less than evidence which
would justify condemnation” or conviction, as Marshall, C. J., said for the Court
more than a century ago in Locke v. United States, 7 Cranch 339, 348. Since
Marshall’s time, at any rate, it has come to mean more than bare suspicion:
Probable cause exists where “the facts and circumstances within their [the officers’]
knowledge and of which they had reasonably trustworthy information [are]
sufficient in themselves to warrant a man of reasonable caution in the belief that”
an offense has been or is being committed. Carroll v. United States, 267 U. S. 132,
162.

These long-prevailing standards seek to safeguard citizens from rash and

unreasonable interferences with privacy and from unfounded charges of crime.
They also seek to give fair leeway for enforcing the law in the community’s
protection. Because many situations which confront officers in the course of
executing their duties are more or less ambiguous, room must be allowed for some
mistakes on their part. But the mistakes must be those of reasonable men, acting
on facts leading sensibly to their conclusions of probability. The rule of probable
cause is a practical, nontechnical conception affording the best compromise that
has been found for accommodating these often opposing interests. Requiring more
would unduly hamper law enforcement. To allow less would be to leave law-abiding
citizens at the mercy of the officers’ whim or caprice.[36]
In the Philippines, there are four instances in the Revised Rules of Criminal
Procedure where probable cause is needed to be established:

(1) In Sections 1 and 3 of Rule 112: By the investigating officer, to determine

whether there is sufficient ground to engender a well-founded belief that a crime
has been committed and the respondent is probably guilty thereof, and should be
held for trial. A preliminary investigation is required before the filing of a complaint
or information for an offense where the penalty prescribed by law is at least four
years, two months and one day without regard to the fine;

(2) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a warrant
of arrest or a commitment order, if the accused has already been arrested, shall be
issued and that there is a necessity of placing the respondent under immediate
custody in order not to frustrate the ends of justice;

(3) In Section 5(b) of Rule 113: By a peace officer or a private person making a
warrantless arrest when an offense has just been committed, and he has probable
cause to believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it; and

(4) In Section 4 of Rule 126: By the judge, to determine whether a search warrant
shall be issued, and only upon probable cause in connection with one specific
offense to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the things to be seized which may be
anywhere in the Philippines.

In all these instances, the evidence necessary to establish probable cause is based
only on the likelihood, or probability, of guilt. Justice Brion, in the recent case
of Unilever Philippines, Inc. v. Tan[37] (Unilever), stated:
The determination of probable cause needs only to rest on evidence showing that
more likely than not, a crime has been committed and there is enough reason to
believe that it was committed by the accused. It need not be based on clear and
convincing evidence of guilt, neither on evidence establishing absolute certainty of
guilt. What is merely required is “probability of guilt.” Its determination, too, does
not call for the application of rules or standards of proof that a judgment of
conviction requires after trial on the merits. Thus, in concluding that there is
probable cause, it suffices that it is believed that the act or omission complained of
constitutes the very offense charged.

It is also important to stress that the determination of probable cause does

not depend on the validity or merits of a party’s accusation or defense
or on the admissibility or veracity of testimonies presented. As previously
discussed, these matters are better ventilated during the trial proper of the case. As
held in Metropolitan Bank & Trust Company v. Gonzales:
Probable cause has been defined as the existence of such facts and circumstances
as would excite the belief in a reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person charged was guilty of the crime for
which he was prosecuted. x x x. The term does not mean “actual or positive cause”
nor does it import absolute certainty. It is merely based on opinion and reasonable
belief. Thus, a finding of probable cause does not require an inquiry into whether
there is sufficient evidence to procure a conviction. It is enough that it is believed
that the act or omission complained of constitutes the offense charged. Precisely,
there is a trial for the reception of evidence of the prosecution in support of the
charge. (Boldfacing and italicization supplied)
Justice Brion’s pronouncement in Unilever that “the determination of probable
cause does not depend on the validity or merits of a party’s accusation or defense
or on the admissibility or veracity of testimonies presented” correctly
recognizes the doctrine in the United States that the determination of probable
cause can rest partially, or even entirely, on hearsay evidence, as long as the
person making the hearsay statement is credible. In United States v.
Ventresca,[38] the United States Supreme Court held:
While a warrant may issue only upon a finding of “probable cause,” this Court has
long held that “the term ‘probable cause’ . . . means less than evidence which
would justify condemnation,” Locke v. United States, 7 Cranch 339, 11 U.S. 348,
and that a finding of “probable cause” may rest upon evidence which is not legally
competent in a criminal trial. Draper v. United States, 358 U.S. 307, 358 U.S. 311.
As the Court stated in Brinegar v. United States, 338 U.S. 160, 173, “There is a
large difference between the two things to be proved (guilt and probable cause), as
well as between the tribunals which determine them, and therefore a like difference
in the quanta and modes of proof required to establish them.” Thus, hearsay may
be the basis for issuance of the warrant “so long as there . . . [is] a
substantial basis for crediting the hearsay.” Jones v. United States, supra,
at 362 U.S. 272. And, in Aguilar, we recognized that “an affidavit may be
based on hearsay information and need not reflect the direct personal
observations of the affiant,” so long as the magistrate is “informed of
some of the underlying circumstances” supporting the affiant’s conclusions
and his belief that any informant involved “whose identity need not be
disclosed . . .” was “credible” or his information “reliable.” Aguilar v. Texas,
supra, at 378 U.S. 114. (Emphasis supplied)
Thus, probable cause can be established with hearsay evidence, as long as there
is substantial basis for crediting the hearsay. Hearsay evidence is admissible in
determining probable cause in a preliminary investigation because such
investigation is merely preliminary, and does not finally adjudicate rights and
obligations of parties. However, in administrative cases, where rights and
obligations are finally adjudicated, what is required is “substantial evidence”
which cannot rest entirely or even partially on hearsay evidence. Substantial basis
is not the same as substantial evidence because substantial evidence excludes
hearsay evidence while substantial basis can include hearsay evidence. To require
the application of Ang Tibay, as amplified in GSIS, in preliminary
investigations will change the quantum of evidence required in
determining probable cause from evidence of likelihood or probability of
guilt to substantial evidence of guilt.

It is, moreover, necessary to distinguish between the constitutionally guaranteed

rights of an accused and the right to a preliminary investigation. To treat them
the same will lead to absurd and disastrous consequences. All pending
criminal cases in all courts throughout the country will have to be
remanded to the preliminary investigation level because none of these will
satisfy Ang Tibay, as amplified in GSIS. Preliminary investigations are
conducted by prosecutors, who are the same officials who will determine probable
cause and prosecute the cases in court. The prosecutor is hardly the impartial
tribunal contemplated in Ang Tibay, as amplified in GSIS. A reinvestigation by an
investigating officer outside of the prosecution service will be necessary if Ang
Tibay, as amplified in GSIS, were to be applied. This will require a new legislation.
In the meantime, all pending criminal cases in all courts will have to be remanded
for reinvestigation, to proceed only when a new law is in place. To require Ang
Tibay, as amplified in GSIS, to apply to preliminary investigation will necessarily
change the concept of preliminary investigation as we know it now. Applying the
constitutional due process in Ang Tibay, as amplified in GSIS, to preliminary
investigation will necessarily require the application of the rights of an accused in
Section 14(2), Article III of the 1987 Constitution. This means that the respondent
can demand an actual hearing and the right to cross-examine the witnesses against
him, rights which are not afforded at present to a respondent in a preliminary
investigation.

The application of Ang Tibay, as amplified in GSIS, is not limited to those with
pending preliminary investigations but even to those convicted by final judgment
and already serving their sentences. The rule is well-settled that a judicial decision
applies retroactively if it has a beneficial effect on a person convicted by final
judgment even if he is already serving his sentence, provided that he is not a
habitual criminal.[39] This Court retains its control over a case “until the full
satisfaction of the final judgment conformably with established legal
processes.”[40] Applying Ang Tibay, as amplified in GSIS, to preliminary
investigations will result in thousands of prisoners, convicted by final judgment,
being set free from prison.

Second. Sen. Estrada’s present Petition for Certiorari is premature.

Justice Velasco’s dissent prefers that Sen. Estrada not “be subjected to the rigors of
a criminal prosecution in court” because there is “a pending question regarding the
Ombudsman’s grave abuse of its discretion preceding the finding of a probable
cause to indict him.” Restated bluntly, Justice Velasco’s dissent would like this Court
to conclude that the mere filing of the present Petition for Certiorari questioning the
Ombudsman’s denial of Sen. Estrada’s Request should have, by itself, voided all
proceedings related to the present case.

Although it is true that, in its 27 March 2014 Order, the Ombudsman denied Sen.
Estrada’s Request, the Ombudsman subsequently reconsidered its Order. On 7 May
2014, the same date that Sen. Estrada filed the present Petition, the Ombudsman
issued a Joint Order in OMB-C-C-13-0313 and OMB-C-C-13-0397
that furnished Sen. Estrada with the counter-affidavits of Ruby Tuason, Dennis
Cunanan, Gondelina Amata, Mario Relampagos, Francisco Figura, Gregoria
Buenaventura, and Alexis Sevidal, and directed him to comment within a non-
extendible period of five days from receipt of said Order. Sen. Estrada did not file
any comment, as noted in the 4 June 2014 Joint Order of the Ombudsman.

On 4 June 2014, the Ombudsman issued another Joint Order and denied Sen.
Estrada’s Motion for Reconsideration of its 28 March 2014 Joint Resolution which
found probable cause to indict Sen. Estrada and his co-respondents with one count
of plunder and 11 counts of violation of Section 3(e), Republic Act No. 3019. In this
4 June 2014 Joint Order, the Ombudsman stated that “[t]his Office, in fact, held in
abeyance the disposition of motions for reconsideration in this proceeding in
light of its grant to Senator Estrada a period of five days from receipt of the 7 May
2014 Order to formally respond to the above-named respondents’ claims.”

We underscore Sen. Estrada’s procedural omission. Sen. Estrada did not file any
pleading, much less a motion for reconsideration, to the 27 March 2014
Order in OMB-C-C-13-0313. Sen. Estrada immediately proceeded to file this
Petition for Certiorari before this Court. Sen. Estrada’s resort to a petition for
certiorari before this Court stands in stark contrast to his filing of his 7 April 2014
Motion for Reconsideration of the 28 March 2014 Joint Resolution finding probable
cause. The present Petition for Certiorari is premature.

A motion for reconsideration allows the public respondent an opportunity to correct

its factual and legal errors. Sen. Estrada, however, failed to present a compelling
reason that the present Petition falls under the exceptions[41] to the general rule
that the filing of a motion for reconsideration is required prior to the filing of a
petition for certiorari. This Court has reiterated in numerous decisions that a motion
for reconsideration is mandatory before the filing of a petition for certiorari.[42]

Justice Velasco’s dissent faults the majority for their refusal to apply the Reyes case
to the present Petition. Justice Velasco’s dissent insists that “this Court cannot
neglect to emphasize that, despite the variance in the quanta of evidence required,
a uniform observance of the singular concept of due process is indispensable in all
proceedings.”

As we try to follow Justice Velasco’s insistence, we direct Justice Velasco and those
who join him in his dissent to this Court’s ruling in Ruivivar v. Office of the
Ombudsman (Ruivivar),[43] wherein we stated that “[t]he law can no longer help
one who had been given ample opportunity to be heard but who did not take full
advantage of the proffered chance.”

The Ruivivar case, like the Reyes[44] case, was also an administrative case before
the Ombudsman. The Ombudsman found petitioner Rachel Beatriz Ruivivar
administratively liable for discourtesy in the course of her official functions and
imposed on her the penalty of reprimand. Petitioner filed a motion for
reconsideration of the decision on the ground that she was not furnished copies of
the affidavits of the private respondent’s witnesses. The Ombudsman subsequently
ordered that petitioner be furnished with copies of the counter-affidavits of private
respondent’s witnesses, and that petitioner should “file, within ten (10) days from
receipt of this Order, such pleading which she may deem fit under the
circumstances.” Petitioner received copies of the affidavits, and simply filed a
manifestation where she maintained that her receipt of the affidavits did not alter
the deprivation of her right to due process or cure the irregularity in the
Ombudsman’s decision to penalize her.

In Ruivivar, petitioner received the affidavits of the private respondent’s

witnesses after the Ombudsman rendered a decision against her. We disposed of
petitioner’s deprivation of due process claim in this manner:
The CA Decision dismissed the petition for certiorari on the ground that the
petitioner failed to exhaust all the administrative remedies available to her before
the Ombudsman. This ruling is legally correct as exhaustion of administrative
remedies is a requisite for the filing of a petition for certiorari. Other than this legal
significance, however, the ruling necessarily carries the direct and immediate
implication that the petitioner has been granted the opportunity to be heard and
has refused to avail of this opportunity; hence, she cannot claim denial of due
process. In the words of the CA ruling itself: “Petitioner was given the opportunity
by public respondent to rebut the affidavits submitted by private respondent. . .
and had a speedy and adequate administrative remedy but she failed to avail
thereof for reasons only known to her.”

For a fuller appreciation of our above conclusion, we clarify that although they are
separate and distinct concepts, exhaustion of administrative remedies and due
process embody linked and related principles. The “exhaustion” principle applies
when the ruling court or tribunal is not given the opportunity to re-examine its
findings and conclusions because of an available opportunity that a party seeking
recourse against the court or the tribunal’s ruling omitted to take. Under the
concept of “due process,” on the other hand, a violation occurs when a court or
tribunal rules against a party without giving him or her the opportunity to be heard.
Thus, the exhaustion principle is based on the perspective of the ruling court or
tribunal, while due process is considered from the point of view of the litigating
party against whom a ruling was made. The commonality they share is in the same
“opportunity” that underlies both. In the context of the present case, the available
opportunity to consider and appreciate the petitioner’s counter-statement of facts
was denied the Ombudsman; hence, the petitioner is barred from seeking recourse
at the CA because the ground she would invoke was not considered at all at the
Ombudsman level. At the same time, the petitioner – who had the same
opportunity to rebut the belatedly-furnished affidavits of the private respondent’s
witnesses – was not denied and cannot now claim denial of due process because
she did not take advantage of the opportunity opened to her at the Ombudsman
level.

The records show that the petitioner duly filed a motion for reconsideration on due
process grounds (i.e., for the private respondent’s failure to furnish her copies of
the affidavits of witnesses) and on questions relating to the appreciation of the
evidence on record. The Ombudsman acted on this motion by issuing its Order of
January 17, 2003 belatedly furnishing her with copies of the private respondent’s
witnesses, together with the “directive to file, within ten (10) days from receipt of
this Order, such pleading which she may deem fit under the circumstances.”

Given this opportunity to act on the belatedly-furnished affidavits, the petitioner

simply chose to file a “Manifestation” where she took the position that “The order of
the Ombudsman dated 17 January 2003 supplying her with the affidavits of the
complainant does not cure the 04 November 2002 order,” and on this basis prayed
that the Ombudsman’s decision “be reconsidered and the complaint dismissed for
lack of merit.”

For her part, the private respondent filed a Comment/Opposition to Motion for
Reconsideration dated 27 January 2003 and prayed for the denial of the petitioner’s
motion.

In the February 12, 2003 Order, the Ombudsman denied the petitioner’s motion for
reconsideration after finding no basis to alter or modify its ruling. Significantly, the
Ombudsman fully discussed in this Order the due process significance of the
petitioner’s failure to adequately respond to the belatedly-furnished affidavits. The
Ombudsman said:
“Undoubtedly, the respondent herein has been furnished by this Office with copies
of the affidavits, which she claims she has not received. Furthermore, the
respondent has been given the opportunity to present her side relative thereto,
however, she chose not to submit countervailing evidence or argument. The
respondent, therefore (sic), cannot claim denial of due process for purposes of
assailing the Decision issued in the present case. On this score, the Supreme Court
held in the case of People v. Acot, 232 SCRA 406, that “a party cannot feign
denial of due process where he had the opportunity to present his side”.
This becomes all the more important since, as correctly pointed out by the
complainant, the decision issued in the present case is deemed final and
unappealable pursuant to Section 27 of Republic Act 6770, and Section 7, Rule III
of Administrative Order No. 07. Despite the clear provisions of the law and the
rules, the respondent herein was given the opportunity not normally
accorded, to present her side, but she opted not to do so which is evidently
fatal to her cause.” [emphasis supplied].
Under these circumstances, we cannot help but recognize that the petitioner’s
cause is a lost one, not only for her failure to exhaust her available administrative
remedy, but also on due process grounds. The law can no longer help one who had
been given ample opportunity to be heard but who did not take full advantage of
the proffered chance.[45]
Ruivivar applies with even greater force to the present Petition because here the
affidavits of Sen. Estrada’s co-respondents were furnished to him before the
Ombudsman rendered her 4 June 2014 Joint Order. In Ruivivar, the affidavits were
furnished after the Ombudsman issued a decision.

Justice Velasco’s dissent cites the cases of Tatad v. Sandiganbayan[46] (Tatad)

and Duterte v. Sandiganbayan[47] (Duterte) in an attempt to prop up its stand. A
careful reading of these cases, however, would show that they do not stand on all
fours with the present case. In Tatad, this Court ruled that “the inordinate delay in
terminating the preliminary investigation and filing the information [by the
Tanodbayan] in the present case is violative of the constitutionally guaranteed right
of the petitioner to due process and to a speedy disposition of the cases against
him.”[48] The Tanodbayan took almost three years to terminate the preliminary
investigation, despite Presidential Decree No. 911’s prescription of a ten-day period
for the prosecutor to resolve a case under preliminary investigation. We ruled
similarly in Duterte, where the petitioners were merely asked to comment and were
not asked to file counter-affidavits as is the proper procedure in a preliminary
investigation. Moreover, in Duterte, the Ombudsman took four years to terminate
its preliminary investigation.

As we follow the reasoning in Justice Velasco’s dissent, it becomes more apparent

that Sen. Estrada’s present Petition for Certiorari is premature for lack of filing of a
motion for reconsideration before the Ombudsman. When the Ombudsman gave
Sen. Estrada copies of the counter-affidavits and even waited for the lapse of the
given period for the filing of his comment, Sen. Estrada failed to avail of the
opportunity to be heard due to his own fault. Thus, Sen. Estrada’s failure cannot in
any way be construed as violation of due process by the Ombudsman, much less of
grave abuse of discretion. Sen. Estrada has not filed any comment, and still
chooses not to.

Third. Sen. Estrada’s present Petition for Certiorari constitutes forum shopping and
should be summarily dismissed.

In his verification and certification of non-forum shopping in the present petition

filed on 7 May 2014, Sen. Estrada stated:
3.1 I, however, disclose that I have filed a Motion for Reconsideration dated 07
April 2014 in OMB-C-C-13-0313 and OMB-C-C-13-0397, raising as sole issue the
finding of probable cause in the Joint Resolution dated 28 March 2014.

Such Motion for Reconsideration has yet to be resolved by the Office of the
Ombudsman.[49] (Emphasis supplied)
Sen. Estrada’s Motion for Reconsideration of the 28 March 2014 Joint Resolution
prayed that the Ombudsman reconsider and issue a new resolution dismissing the
charges against him. However, in this Motion for Reconsideration, Sen. Estrada
assailed the Ombudsman’s 27 March 2014 Joint Order denying his Request, and
that such denial is a violation of his right to due process.
8. It is respectfully submitted that the Ombudsman violated the foregoing rule
[Rule 112, Section 4 of the Rules of Court] and principles. A reading of the Joint
Resolution will reveal that various pieces of evidence which Senator
Estrada was not furnished with – hence, depriving him of the opportunity
to controvert the same – were heavily considered by the Ombudsman in
finding probable cause to charge him with Plunder and with violations of
Section 3(e) of R.A. No. 3019.

xxxx

11. Notably, under dated 20 March 2014, Senator Estrada filed a “Request to be
Furnished with Copies of Counter-Affidavits of the Other Respondents, Affidavits of
New Witnesses and Other Filings,” pursuant to the right of a respondent “to
examine the evidence submitted by the complainant which he may not have been
furnished” (Section 3[b], Rule 112 of the Rules of Court), and to “have access to
the evidence on record” (Section 4[c], Rule II of the Rules of Procedure of the
Office of the Ombudsman).

However, notwithstanding the gravity of the offenses leveled against Senator

Estrada and the law’s vigilance in protecting the rights of an accused, the Special
Panel of Investigators, in an Order dated 27 March 2014, unceremoniously
denied the request on the ground that “there is no provision under this
Office’s Rules of Procedure which entitles respondent to be furnished all
the filings by the other parties x x x x.” (Order dated 27 March 2013, p. 3)

As such, Senator Estrada was not properly apprised of the evidence offered
against him, which were eventually made the bases of the Ombudsman’s
finding of probable cause.[50]
The Ombudsman denied Sen. Estrada’s Motion for Reconsideration in its 4 June
2014 Joint Order. Clearly, Sen. Estrada expressly raised in his Motion for
Reconsideration with the Ombudsman the violation of his right to due process, the
same issue he is raising in this petition.

In the verification and certification of non-forum shopping attached to his petition

docketed as G.R. Nos. 212761-62 filed on 23 June 2014, Sen. Estrada disclosed the
pendency of the present petition, as well as those before the Sandiganbayan for the
determination of the existence of probable cause. In his petition in G.R. Nos.
212761-62, Sen. Estrada again mentioned the Ombudsman’s 27 March 2014 Joint
Order denying his Request.
17. Sen. Estrada was shocked not only at the Office of the Ombudsman’s finding of
probable cause, which he maintains is without legal or factual basis, but also that
such finding of probable cause was premised on evidence not disclosed to him,
including those subject of his Request to be Furnished with Copies of Counter-
Affidavits of the Other Respondents, Affidavits of New Witnesses and Other
Filings dated 20 March 2014.
In particular, the Office of the Ombudsman used as basis for the Joint
Resolution the following documents -

i. Alexis G. Sevidal’s Counter-Affidavits dated 15 January and 24 February

2014;

ii. Dennis L. Cunanan’s Counter-Affidavits both dated 20 February 2014;

iii. Francisco B. Figura’s Counter-Affidavit dated 08 January 2014;

iv. Ruby Tuason’s Counter-Affidavits both dated 21 February 2014;

v. Gregoria G. Buenaventura’s Counter-Affidavit dated 06 March 2014; and

vi. Philippine Daily Inquirer Online Edition news article entitled “Benhur Luy
upstages Napoles in Senate Hearing” by Norman Bordadora and TJ Borgonio,
published on 06 March 2014,

none of which were ever furnished Sen. Estrada prior to the issuance of the
challenged Joint Resolution, despite written request.

xxxx

II

THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED JOINT

RESOLUTION DATED 28 MARCH 2014 AND CHALLENGED JOINT ORDER DATED 04
JUNE 2014, NOT ONLY ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION OR
WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION, BUT ALSO VIOLATED SEN. ESTRADA’S CONSTITUTIONAL RIGHT TO
DUE PROCESS OF LAW AND TO EQUAL PROTECTION OF THE LAWS.

xxxx

2.17 x x x x

Notably, in its Joint Order dated 07 May 2014, the Office of the Ombudsman even
arbitrarily limited the filing of Sen. Estrada’s comment to the voluminous
documents comprising the documents it furnished Sen. Estrada to a “non-
extendible” period of five (5) days, making it virtually impossible for Sen. Estrada
to adequately study the charges leveled against him and intelligently respond to
them. The Joint Order also failed to disclose the existence of other counter-
affidavits and failed to furnish Sen. Estrada copies of such counter-affidavits.[51]
Sen. Estrada has not been candid with this Court. His claim that the finding of
probable cause was the “sole issue” he raised before the Ombudsman in his
Motion for Reconsideration dated 7 April 2014 is obviously false.

Moreover, even though Sen. Estrada acknowledged his receipt of the Ombudsman’s
4 June 2014 Joint Order which denied his motion for reconsideration of the 28
March 2014 Joint Resolution, Sen. Estrada did not mention that the 4 June 2014
Joint Order stated that the Ombudsman “held in abeyance the disposition of the
motions for reconsideration in this proceeding in light of its grant to [Sen. Estrada]
a period of five days from receipt of the 7 May 2014 [Joint] Order to formally
respond to the above-named co-respondent’s claims.”

Sen. Estrada claims that his rights were violated but he flouts the rules himself.

The rule against forum shopping is not limited to the fulfillment of the requisites
of litis pendentia.[52] To determine whether a party violated the rule against forum
shopping, the most important factor to ask is whether the elements of litis
pendentia are present, or whether a final judgment in one case will amount
to res judicata in another.[53] Undergirding the principle of litis pendentia is the
theory that a party is not allowed to vex another more than once regarding the
same subject matter and for the same cause of action. This theory is founded on
the public policy that the same matter should not be the subject of controversy in
court more than once in order that possible conflicting judgments may be avoided,
for the sake of the stability in the rights and status of persons.[54]
x x x [D]espite the fact that what the petitioners filed was a petition
for certiorari, a recourse that – in the usual course and because of its
nature and purpose – is not covered by the rule on forum shopping. The
exception from the forum shopping rule, however, is true only where a
petition for certiorari is properly or regularly invoked in the usual course;
the exception does not apply when the relief sought, through a petition
for certiorari, is still pending with or has as yet to be decided by the
respondent court, tribunal or body exercising judicial or quasi-judicial
body, e.g., a motion for reconsideration of the order assailed via a petition
for certiorari under Rule 65, as in the present case. This conclusion is supported
and strengthened by
Section 1, Rule 65 of the Revised Rules of Court which provides that the availability
of a remedy in the ordinary course of law precludes the filing of a petition
for certiorari; under this rule, the petition’s dismissal is the necessary consequence
if recourse to Rule 65 is prematurely taken.
To be sure, the simultaneous remedies the petitioners sought could result in
possible conflicting rulings, or at the very least, to complicated situations,
between the RTC and the Court of Appeals. An extreme possible result is for the
appellate court to confirm that the RTC decision is meritorious, yet the RTC may at
the same time reconsider its ruling and recall its order of dismissal. In this
eventuality, the result is the affirmation of the decision that the court a quo has
backtracked on. Other permutations depending on the rulings of the two courts and
the timing of these rulings are possible. In every case, our justice system
suffers as this kind of sharp practice opens the system to the possibility of
manipulation; to uncertainties when conflict of rulings arise; and at least
to vexation for complications other than conflict of rulings. Thus, it matters
not that ultimately the Court of Appeals may completely agree with the RTC; what
the rule on forum shopping addresses are the possibility and the actuality
of its harmful effects on our judicial system.[55]
Sen. Estrada resorted to simultaneous remedies by filing this Petition alleging
violation of due process by the Ombudsman even as his Motion for Reconsideration
raising the very same issue remained pending with the Ombudsman. This is plain
and simple forum shopping, warranting outright dismissal of this Petition.

SUMMARY

The Ombudsman, in furnishing Sen. Estrada a copy of the complaint and its
supporting affidavits and documents, fully complied with Sections 3 and 4 of Rule
112 of the Revised Rules of Criminal Procedure, and Section 4, Rule II of the Rules
of Procedure of the Office of the Ombudsman, Administrative Order No. 7. Both the
Revised Rules of Criminal Procedure and the Rules of Procedure of the Office of the
Ombudsman require the investigating officer to furnish the respondent with copies
of the affidavits of the complainant and affidavits of his supporting witnesses.
Neither of these Rules require the investigating officer to furnish the respondent
with copies of the affidavits of his co-respondents. The right of the respondent is
only “to examine the evidence submitted by the complainant,” as expressly
stated in Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure. This
Court has unequivocally ruled in Paderanga that “Section 3, Rule 112 of the Revised
Rules of Criminal Procedure expressly provides that the respondent shall only have
the right to submit a counter-affidavit, to examine all other evidence submitted by
the complainant and, where the fiscal sets a hearing to propound clarificatory
questions to the parties or their witnesses, to be afforded an opportunity to be
present but without the right to examine or cross-examine.” Moreover, Section 4
(a, b and c) of Rule II of the Ombudsman’s Rule of Procedure, read together,
only require the investigating officer to furnish the respondent with copies of the
affidavits of the complainant and his supporting witnesses. There is no law or rule
requiring the investigating officer to furnish the respondent with copies of the
affidavits of his co-respondents.

In the 7 May 2014 Joint Order, the Ombudsman went beyond legal duty and
even furnished Sen. Estrada with copies of the counter-affidavits of his co-
respondents whom he specifically named, as well as the counter-affidavits of some
of other co-respondents. In the 4 June 2014 Joint Order, the Ombudsman even
held in abeyance the disposition of the motions for reconsideration because the
Ombudsman granted Sen. Estrada five days from receipt of the 7 May 2014 Joint
Order to formally respond to the claims made by his co-respondents. The
Ombudsman faithfully complied with the existing Rules on preliminary investigation
and even accommodated Sen. Estrada beyond what the Rules required. Thus, the
Ombudsman could not be faulted with grave abuse of discretion. Since this is a
Petition for Certiorari under Rule 65, the Petition fails in the absence of
grave abuse of discretion on the part of the Ombudsman.

The constitutional due process requirements mandated in Ang Tibay, as amplified

in GSIS, are not applicable to preliminary investigations which are creations of
statutory law giving rise to mere statutory rights. A law can abolish preliminary
investigations without running afoul with the constitutional requirements of due
process as prescribed in Ang Tibay, as amplified in GSIS. The present procedures
for preliminary investigations do not comply, and were never intended to comply,
with Ang Tibay, as amplified in GSIS. Preliminary investigations do not adjudicate
with finality rights and obligations of parties, while administrative investigations
governed by Ang Tibay, as amplified in GSIS, so adjudicate. Ang Tibay, as amplified
in GSIS, requires substantial evidence for a decision against the respondent in
the administrative case. In preliminary investigations, only likelihood or
probability of guilt is required. To apply Ang Tibay, as amplified in GSIS, to
preliminary investigations will change the quantum of evidence required to establish
probable cause. The respondent in an administrative case governed by Ang Tibay,
as amplified in GSIS, has the right to an actual hearing and to cross-examine the
witnesses against him. In preliminary investigations, the respondent has no such
rights.

Also, in an administrative case governed by Ang Tibay, as amplified in GSIS, the

hearing officer must be impartial and cannot be the fact-finder, investigator, and
hearing officer at the same time. In preliminary investigations, the same public
officer may be the investigator and hearing officer at the same time, or the fact-
finder, investigator and hearing officer may be under the control and
supervision of the same public officer, like the Ombudsman or Secretary of
Justice. This explains why Ang Tibay, as amplified in GSIS, does not apply to
preliminary investigations. To now declare that the guidelines in Ang Tibay, as
amplified in GSIS, are fundamental and essential requirements in preliminary
investigations will render all past and present preliminary investigations invalid for
violation of constitutional due process. This will mean remanding for
reinvestigation all criminal cases now pending in all courts throughout the
country. No preliminary investigation can proceed until a new law designates a
public officer, outside of the prosecution service, to determine probable cause.
Moreover, those serving sentences by final judgment would have to be released
from prison because their conviction violated constitutional due process.

Sen. Estrada did not file a Motion for Reconsideration of the 27 March 2014 Order in
OMB-C-C-13-0313 denying his Request, which is the subject of the present Petition.
He should have filed a Motion for Reconsideration, in the same manner that he filed
a Motion for Reconsideration of the 15 May 2014 Order denying his motion to
suspend proceedings. The unquestioned rule in this jurisdiction is that certiorari will
lie only if there is no appeal or any other plain, speedy and adequate remedy in the
ordinary course of law against the acts of the public respondent.[56] The plain,
speedy and adequate remedy expressly provided by law is a Motion for
Reconsideration of the 27 March 2014 Order of the Ombudsman. Sen. Estrada’s
failure to file a Motion for Reconsideration renders this Petition premature.

Sen. Estrada also raised in this Petition the same issue he raised in his Motion for
Reconsideration of the 28 March 2014 Joint Resolution of the Ombudsman finding
probable cause. While his Motion for Reconsideration of the 28 March 2014 Joint
Resolution was pending, Sen. Estrada did not wait for the resolution of the
Ombudsman and instead proceeded to file the present Petition for Certiorari. The
Ombudsman issued a Joint Order on 4 June 2014 and specifically addressed the
issue that Sen. Estrada is raising in this Petition. Thus, Sen. Estrada’s present
Petition for Certiorari is not only premature, it also constitutes forum
shopping.

WHEREFORE, we DISMISS the Petition for Certiorari in G.R. Nos. 212140-41.

SO ORDERED.

FIRST DIVISION
[ G.R. No. 206866, September 02, 2015 ]
PHILIPPINE DEPOSIT INSURANCE CORPORATION (PDIC),
PETITIONER, VS. HON. ORLANDO C. CASIMIRO, IN HIS
CAPACITY AS OVERALL DEPUTY OMBUDSMAN, FIDEL C. CU,
CARMELITA B. ZATE, AND MARY LOU S. APELO,
RESPONDENTS.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for certiorari[1] are the Resolution[2] dated January 24, 2012
and the Order[3] dated October 29, 2012 of the Office of the Ombudsman
(Ombudsman) in OMB-C-C-10-0294-G dismissing the criminal complaint against
private respondents Fidel C. Cu (Cu), Carmelita B. Zate (Zate), and Mary Lou S.
Apelo (Apelo; collectively, private respondents) for lack of probable cause.

The Facts

The instant case arose from a Joint-Affidavit[4] dated June 18, 2010 filed by
petitioner Philippine Deposit Insurance Corporation (PDIC), through its duly-
authorized officers, Alexander N. Dojillo and Israel A. Bandoy, charging private
respondents of the crimes of Direct Bribery and Corruption of Public Officials,
defined and penalized under Articles 210 and 212 of the Revised Penal Code (RPC),
respectively, as well as violation of Section 3 (e) of Republic Act No. (RA) 3019,
entitled the Anti-Graft and Corrupt Practices Act. Specifically, private respondents
were being sued in the following capacities: (a) Cu (together with members of his
family) as the 85.99% owner of Bicol Development Bank, Inc. (BDBI); (b) Zate as
Chairman/President of BDBI; and (c) Apelo as a former employee of the Bangko
Sentral ng Pilipinas (BSP) who acted as the Bank Officer-In-Charge that examined
BDBI's books and records as of September 30, 2001, and as one of the assistants
of Bank Officer-In-Charge Evangeline C. Velasquez in connection with the Reports
of Examination of BDBI's books and records as of August 31, 2000 and October 31,
2002.[5]

The Joint-Affidavit averred that on December 22, 2008, PDIC, acting as statutory
receiver, took over the affairs of BDBI after the BSP Monetary Board ordered its
closure. As statutory receiver, PDIC purposedly went on to gather, preserve, and
administer its records, assets, and liabilities for the benefit of its depositors and
creditors. In the course of the receivership, Arsenia T. Gomez (Gomez) - a former
Cashier, Service Officer, and Treasurer of BDBI until its closure - went to the PDIC
and submitted an Affidavit[6] dated January 12, 2010 outlining the alleged
irregularities committed by private respondents when BDBI was still in operation.[7]

According to Gomez, on November 16, 2006, Cu instructed her to take money from
the vault in the amount of P30,000.00 and to deposit the same to Apelo's bank
account in Philippine National Bank - Legazpi City Branch under Account Number
224-521-5625.[8] When Gomez asked for the reason, Cu replied "Professional Fee
natin sa kanya yan" On further orders/directives from Cu and Zate, additional
deposits were made to Apelo's bank account on two (2) separate dates, specifically
April 20, 2007 and October 3, 2007, in the respective amounts of P60,000.00 and
P50,000.00. After the deposits were made, Gomez was initially instructed to cover
the unofficial and unbooked cash disbursements in favor of Apelo by placing such
amounts in BDBI's books as "Other Cash Items;" and thereafter, to regularize and
remove from BDBI's books such disbursements by including them in the other
accounts of BDBI until they were completely covered.[9] To bolster her allegations,
Gomez attached copies of deposit slips and official receipts to show that such
deposits were indeed made to Apelo's bank accounts.[10]

In this regard, Gomez averred that in the course of her employment with BDBI, she
does not know of any official or legitimate transactions that would warrant BDBI to
disburse the aforesaid amounts in favor of Apelo. However, speaking from personal
experience, Gomez noticed that Cu would always receive an "advance warning"
about a surprise examination on BDBI by BSP. During such time and until the
actual arrival of the BSP examiner, Cu would instruct BDBI employees on how to
cover the possible findings/exceptions of the BSP examiner on the books of BDBI.
In addition, Cu shall deliver cash in BDBFs vault in order to make it appear that the
cash listed in the books reflect the actual cash in vault; and after such examination,
Cu will take the cash he delivered to BDBFs vault and return it to the source.[11]
In view of Gomez's revelations, PDIC decided to file the instant criminal complaint
against private respondents.

In his defense, Cu denied having ordered or instructed Gomez to make such

deposits to Apelo's bank account. He pointed to the lack of evidence to prove that
Apelo was aware or made aware of any alleged bank deposits made to her bank
account, thus, negating the charge of Direct Bribery against her and Corruption of
Public Officials against him. For her part, Zate likewise denied the allegations hurled
against her, countering that Gomez's statements should not be relied upon for
being unfounded. Apelo did not file any counter-affidavit despite the Ombudsman's
orders.[12]

The Ombudsman's Ruling

In a Resolution[13] dated January 24, 2012, the Ombudsman dismissed the criminal
complaint for lack of probable cause.[14] The Ombudsman found that while it may be
said that certain amounts were indeed deposited to Apelo's bank account, there is
no proof that Apelo subsequently withdrew the same. In this regard, the
Ombudsman opined that unless it can be shown that Apelo made such withdrawals,
it cannot be declared with certainty that she received monetary consideration from
Cu and Zate in exchange for the advance information relative to impending BSP
examinations conducted on BDBI.[15]

PDIC moved for reconsideration, which was, however, denied in an Order[16] dated
October 29, 2012. The Ombudsman found Gomez's affidavit showing Apelo as the
source of the "advance warnings" received by Cu in connection with the BSP
examinations to be inadmissible in evidence for being hearsay.[17] Aggrieved, PDIC
filed the instant petition.[18]

The Issue Before the Court

The primordial issue raised for the Court's resolution is whether or not the
Omibudsman gravely abused its discretion in finding no probable cause to indict
private respondents of the crimes charged.

The Court's Ruling

The petition is meritorious.

At the outset, it must be stressed that the Court has consistently refrained from
interfering with the discretion of the Ombudsman to determine the existence of
probable cause and to decide whether or not an Information should be filed.
Nonetheless, this Court is not precluded from reviewing the Ombudsman's action
when there is a charge of grave abuse of discretion. Grave abuse of discretion
implies a capricious and whimsical exercise of judgment tantamount to lack of
jurisdiction. The Ombudsman's exercise of power must have been done in an
arbitrary or despotic manner which must be so patent and gross as to amount to an
evasion of a positive duty or a virtual refusal to perform the duty enjoined or to act
at all in contemplation of law.[19] The Court's pronouncement in Ciron v.
Gutierrez[20] is instructive on this matter, to wit:

x x x this Court's consistent policy has been to maintain noninterference in

the determination of the Ombudsman of the existence of probable cause,
provided there is no grave abuse in the exercise of such discretion. This
observed policy is based not only on respect for the investigatory and
prosecutory powers granted by the Constitution to the Office of the
Ombudsman but upon practicality as well. Otherwise, the functions of the
Court will be seriously hampered by innumerable petitions assailing the dismissal of
investigatory proceedings conducted by the Office of the Ombudsman with regard
to complaints filed before it, in much the same way that the courts would be
extremely swamped with cases if they could be compelled to review the exercise of
discretion on the part of the fiscals or prosecuting attorneys each time they decide
to file an information in court or dismiss a complaint by a private
complainant.[21] (Emphasis and underscoring supplied)

In this regard, it is worthy to note that the conduct of preliminary investigation

proceedings - whether by the Ombudsman or by a public prosecutor - is geared
only to determine whether or not probable cause exists to hold an accused-
respondent for trial for the supposed crime that he committed. In Fenequito v.
Vergara, Jr.,[22] the Court defined probable cause and the parameters in finding the
existence thereof in the following manner:

Probable cause, for the purpose of filing a criminal information, has been defined
as such facts as are sufficient to engender a well-founded belief that a
crime has been committed and that respondent is probably guilty thereof.
The term does not mean "actual or positive cause" nor does it import absolute
certainty. It is merely based on opinion and reasonable belief. Probable cause
does not require an inquiry into whether there is sufficient evidence to
procure a conviction. It is enough that it is believed that the act or
omission complained of constitutes the offense charged.

A finding of probable cause needs only to rest on evidence showing that, more
likely than not, a crime has been committed by the suspects. It need not be
based on clear and convincing evidence of guilt, not on evidence
establishing guilt beyond reasonable doubt, and definitely not on evidence
establishing absolute certainty of guilt. In determining probable cause, the
average man weighs facts and circumstances without resorting to the calibrations of
the rules of evidence of which he has no technical knowledge. He relies on common
sense. What is determined is whether there is sufficient ground to
engender a well-founded belief that a crime has been committed, and that
the accused is probably guilty thereof and should be held for trial. It does
not require an inquiry as to whether there is sufficient evidence to secure a
conviction.[23] (Emphases and underscoring supplied)

Verily, preliminary investigation is merely an inquisitorial mode of discovering

whether or not there is reasonable basis to believe that a crime has been
committed and that the person charged should be held responsible for it. Being
merely based on opinion and belief, a finding of probable cause does not require an
inquiry as to whether there is sufficient evidence to secure a conviction.[24] "[A
preliminary investigation] is not the occasion for the full and exhaustive display of
[the prosecution's] evidence. The presence or absence of the elements of the crime
is evidentiary in nature and is a matter of defense that may be passed upon after a
full-blown trial on the merits."[25] Hence, "the validity and merits of a party's
defense or accusation, as well as the admissibility of testimonies and evidence, are
better ventilated during trial proper than at the preliminary investigation level."[26]

Guided by the foregoing considerations, the Court finds that the Ombudsman
gravely abused its discretion in dismissing the criminal complaint against private
respondents for lack of probable cause, as will be explained hereunder.

As already stated, Apelo was accused of committing the crime of Direct Bribery,
which has the following elements: (a) that the accused is a public officer; (b) that
he received directly or through another some gift or present, offer or promise; (c)
that such gift, present or promise has been given in consideration of his
commission of some crime, or any act not constituting a crime, or to refrain from
doing something which is his official duty to do; and (d) that the crime or act
relates to the exercise of his functions as a public officer.[27] On the other hand, Cu
and Zate were accused of committing the crime of Corruption of Public Officials, the
elements of which are as follows: (a) that the offender makes offers or promises, or
gives gifts or presents to a public officer; and (b) that the offers or promises are
made or the gifts or presents are given to a public officer under circumstances that
will make the public officer liable for direct bribery or indirect bribery.[28] In
addition, all private respondents were charged with violation of Section 3 (e) of RA
3019. The essential elements of such crime are as follows: (a) that the accused
must be a public officer discharging administrative, judicial, or official functions (or
a private individual acting in conspiracy with such public officers[29]); (b) that he
acted with manifest partiality, evident bad faith, or inexcusable negligence; and (c)
that his action caused any undue injury to any party, including the government, or
giving any private party unwarranted benefits, advantage, or preference in the
discharge of his functions.[30]

A review of the records of the case reveals that after BDBFs closure, PDIC started
to perform its functions as statutory receiver, which includes, among others, the
control, management, and administration of BDBI as well as investigating the
causes of BDBI's closure.[31] In the course of the receivership, Gomez — a former
Cashier, Service Officer, and Treasurer of BDBI - came forward and through her
affidavit, reported the purported scheme perpetrated by private respondents that
fraudulently concealed BDBFs true condition as a banking entity. Gomez's affidavit
outlines such scheme as follows: (a) Apelo would provide Cu an "advance warning"
of any impending surprise bank examinations on BDBI by BSP; (b) upon receipt of
the "advance warning," Cu would then make the necessary steps to misrepresent
BDBI's status, such as instructing BDBI employees on how to cover the possible
findings/exceptions of the BSP examiner on the books of BDBI, as well as infusing
cash into BDBI's vault in order to make it appear that the cash listed in the books
reflect the actual cash in vault, and thereafter returning such cash to the source;
(c) in exchange for such "advance warnings," Cu and/or Zate gave Apelo as
"professional fees" the aggregate amount of P140,000.00 by depositing the same to
the latter's bank account; and (d) to cover up such amounts given to Apelo, Cu
and/or Zate, instructed Gomez to initially cover the unofficial and unbooked cash
disbursements in favor of Apelo by placing such amounts in BDBI's books as "Other
Cash Items," and thereafter, regularize and remove from BDBI's books such
disbursements by including them in the other accounts of BDBI until they were
completely covered. To support such statements, Gomez provided copies of deposit
slips showing that such amount was indeed deposited to Apelo's bank account. She
likewise asserted that in the course of her employment at BDBI, she does not know
of any official or legitimate transactions that BDBI had with Apelo that would
warrant the disbursement of the aforesaid amount in the latter's favor.

In view of such grave accusations against them, Cu and Zate resorted to mere
denials, while Apelo ignored the complaint by not filing a counter-affidavit despite
due notice, thus, miserably failing to debunk the charges hurled against them.
Indubitably, the foregoing establishes probable cause to believe that private
respondents may have indeed committed such acts constituting the crimes charged
against them. As such, they must defend themselves in a full-blown trial on the
merits.

Finally, it was error on the part of the Ombudsman to simply discredit Gomez's
affidavit as inadmissible in evidence for being hearsay. It is noteworthy to point out
that owing to the initiatory nature of preliminary investigations, the technical rules
of evidence should not be applied in the course of its proceedings.[32] In the recent
case of Estrada v. Ombudsman,[33] the Court declared that hearsay evidence is
admissible in determining probable cause in preliminary investigations because
such investigation is merely preliminary, and does not finally adjudicate rights and
obligations of parties. Citing a case decided by the Supreme Court of the United
States, it was held that probable cause can be established with hearsay evidence,
as long as there is substantial basis for crediting the hearsay, viz.:

Justice Brion's pronouncement in Unilever that "the determination of probable

cause does not depend on the validity or merits of a party's accusation or defense
or on the admissibility or veracity of testimonies presented" correctly recognizes the
doctrine in the United States that the determination of probable cause can rest
partially, or even entirely, on hearsay evidence, as long as the person
making the hearsay statement is credible. In United States v. Ventresca, the
United States Supreme Court held:

While a warrant may issue only upon a finding of "probable cause," this Court has
long held that "the term 'probable cause' ... means less than evidence which would
justify condemnation," x x x and that a finding of "probable cause" may rest upon
evidence which is not legally competent in a criminal trial, x x x As the Court stated
in Brinegar v. United States x x x, "There is a large difference between two things
to be proved (guilt and probable cause), as well as between the tribunals which
determine them, and therefore a like difference in the quanta and modes of proof
required to establish them." Thus, hearsay may be the bases for issuance of
the warrant "so long as there ... [is] a substantial basis for crediting the
hearsay." x x x And, in Aguilar, we recognized that "an affidavit may be based
on hearsay information and need not reflect the direct personal
observations of the affiant," so long as the magistrate is "informed of
some of the underlying circumstances" supporting the affiant's conclusions
and his belief that any informant involved "whose identity need not be
disclosed..." was "credible" or his information "reliable." x x x.

Thus, probable cause can be established with hearsay evidence, as long as

there is substantial basis for crediting the hearsay. Hearsay evidence is
admissible in determining probable cause in a preliminary investigation
because such investigation is merely preliminary, and does not finally
adjudicate rights and obligations of parties. x x x.[34] (Emphases and
underscoring supplied)

In this case, assuming arguendo that Gomez's statements, as written in her

affidavit are indeed hearsay, there is nevertheless substantial basis to credit the
same, considering that she was a former Cashier, Service Officer, and Treasurer of
BDBI - a high-ranking officer that may be privy to delicate transactions such as the
purported "under-the-table" deal involving private respondents. In this regard, it
must be emphasized that in determining the elements of the crime charged for
purposes of arriving at a finding of probable cause, only facts sufficient to support
a prima facie case against the respondents are required, not absolute certainty.
Probable cause implies mere probability of guilt, i.e., a finding based on more than
bare suspicion but less than evidence that would justify a conviction.[35] To
reiterate, the validity of the merits of a party's defense or accusations as well as the
admissibility of testimonies and evidences are better ventilated during the trial
stage than in the preliminary stage.[36]

In sum, the Court is convinced that there is probable cause to indict private
respondents of the crimes charged against them. Hence, the Ombudsman
committed grave abuse of discretion amounting to lack or excess of jurisdiction
when it ordered the dismissal of the criminal complaint against private respondents.

WHEREFORE, the petition is GRANTED. The Resolution dated January 24, 2012
and the Order dated October 29, 2012 of the Office of the Ombudsman in OMB-C-
C-10-0294-G are hereby REVERSED and SET ASIDE. Accordingly, the Office of
the Ombudsman is DIRECTED to issue the proper resolution in order to indict
private respondents Fidel C. Cu, Carmelita B. Zate, and Mary Lou S. Apelo in
accordance with this Decision.

SO ORDERED.

SECOND DIVISION
[ G.R. No. 205800, September 10, 2014 ]
MICROSOFT CORPORATION AND ADOBE SYSTEMS
INCORPORATED, PETITIONERS, VS. SAMIR FARAJALLAH,
VIRGILIO D.C. HERCE, RACHEL P. FOLLOSCO, JESUSITO G.
MORALLOS, AND MA. GERALDINE S. GARCIA (DIRECTORS
AND OFFICERS OF NEW FIELDS (ASIA PACIFIC), INC.),
RESPONDENTS.

DECISION

CARPIO, ACTING C.J.:

 The Case

Before this Court is a petition for review on certiorari under Rule 45 of the Rules of
Court which seeks to reverse and set aside the Decision[1] of the Court of Appeals
(CA) dated 28 June 2012 in CA-G.R. SP No. 116771 and the Resolution[2] of the CA
dated 30 January 2013. The Decision and Resolution sustained the orders of the
Regional Trial Court of Manila, Branch 21 (RTC) quashing Search Warrant Nos. 10-
15912 and 10-15913.

The Facts

Microsoft Corporation and Adobe Systems Incorporated (petitioners) are

corporations organized and existing under the laws of the United States. Microsoft
Corporation is the owner of all rights including copyright relating to all versions and
editions of Microsoft software[3] and the corresponding user’s manuals, and the
registered owner of the “Microsoft” “MS DOS” trademarks in the Philippines. Adobe
Systems Incorporated is the owner of all rights including copyright relating to all
versions and editions of Adobe Software.[4]

Samir Farajallah, Virgilio D.C. Herce, Rachel P. Follosco, Jesusito G. Morallos and
Ma. Geraldine S. Garcia (respondents) are the directors and officers of New Fields
(Asia Pacific), Inc., a domestic corporation with principal office at Unit 1603, East
Tower, Philippine Stock Exchange Center, Exchange Road, Ortigas Center, Pasig
City.

Petitioners claim that in September 2009, they were informed that New Fields was
unlawfully reproducing and using unlicensed versions of their software. Orion
Support, Inc. (OSI) was engaged by petitioners to assist in the verification of this
information. Two OSI Market Researchers, Norma L. Serrano (Serrano) and Michael
A. Moradoz (Moradoz) were assigned to confirm the informant's tip. Serrano and
Moradoz were trained to detect unauthorized copies of Adobe and Microsoft
software.[5]

On 17 March 2010, counsel for petitioners filed a letter-complaint with the Chief of
the Philippine National Police Criminal Investigation and Detection Group. The case
was assigned to Police Senior Inspector Ernesto V. Padilla (Padilla).[6]

On 26 March 2010, Padilla, Serrano, and Moradoz went to the office of respondents.
Using a legitimate business pretext, they were able to use two computers owned by
New Fields and obtained the following information regarding the installed Microsoft
and Adobe software:
First computer

Installed Software Product I.D./Serial Number

Microsoft Windows XP Pro V2002 SP2 55274-640-1582543-23775

Microsoft Office Word 2007 Enterprise 89388-707-0358973-65509

Edition 2007

Adobe Acrobat 8 Pro (1) 1118-1061-0904-4874-2027

Second computer
Installed Software Product I.D./Serial Number

Microsoft Windows XP Pro V2002 SP2 55274-640-1582543-23442

Microsoft Office Word 2007 Enterprise 89388-707-0358973-65709

Edition 2007

Adobe Acrobat 8 Pro (1) 1118-1061-0904-4874-2027

Padilla was trained to distinguish original from counterfeit software,[7] and he saw
the screens of the computers used by the OSI staff, including the product I.D. Nos.
of the installed software.

In their Joint Affidavit, Serrano and Moradoz stated that:

There are at least two (2) computers using common product identification and/or
serial numbers of MICROSOFT and ADOBE software. This is one indication that the
software being used is unlicensed or was illegally reproduced or copied. Based on
the training we attended, all ADOBE and MICROSOFT software should only be
installed in one computer, unless they avail of an Open Licese Agreement from the
software developer, which is not the case in NEW FIELDS. In this case, the first
three sets of numbers of the Product I.D. Nos. of the MICROSOFT Windows XP Pro
operating System software program installed in the two (2) computer units we
used, i.e., “55274-640-1582543-xxxxx”, were the same. We also observed that the
first three sets of numbers of the Product I.D Nos. of the MICROSOFT Office 2007
(Word) software in the two (2) computers we used, i.e., “89388-707-0358973-
xxxxx”, were also the same. Ostensibly, this means that NEW FIELDS only used one
(1) installer of the MICROSOFT Windows XP operating system software and one (1)
installer of the MICROSOFT Office software program on two (2) computers. Based
on our training, if the first three sets of numbers of the Product I.D. Nos. of
the MICROSOFT software installed are the same, it signifies that it came
from one installer. It does not matter [if] the last 5 digits of the Product
I.D. Nos. are different because this is computer-generated and therefore
varies with every installation. Apart from the MICROSOFT software, the
serial numbers of the ADOBE software installed in the computer units we
used were also the same, signifying that NEW FIELDS only used one (1)
installer of the ADOBE software program on two (2) computers.[8] (Emphasis
supplied)

They also observed that New Fields had 90 computers in their office with Microsoft
software, none of which had the Certificate of Authenticity issued by Microsoft.

After being informed of the results of the investigation, petitioners then issued
certifications that they have not authorized New Fields to “copy, print, reproduce
and/or publish unauthorized copies of Microsoft and Adobe software products.”[9]

An application for search warrants was filed by Padilla on 20 May 2010, before
Judge Amor Reyes in her capacity as Executive Judge of the RTC. Search Warrant
Nos. 10-15912 and 10-15913 were issued on the same date.[10]

The warrants were served on respondents on 24 May 2010. New Fields employees
witnessed the search conducted by the authorities. Several items were seized,
including 17 CD installers and 83 computers containing unauthorized copies of
Microsoft and/or Adobe software.

On 6 June 2010, New Fields filed a motion seeking to quash one of the two
warrants served (Search Warrant No. 10-15912).[11] The motion was received by
petitioners on 10 June 2010 and was set for hearing on 11 June 2010. During the
hearing on the motion, petitioners were allowed by the RTC to file their
Comment/Opposition on or before 21 June 2010.[12]

In their Comment/Opposition dated 21 June 2010,[13] petitioners alleged that:

The Motion [to Quash] failed to comply with the mandatory 3-day notice rule under
the Rules of Court. Hence it is nothing but a worthless piece of paper.

xxxx

In this case, the Motion of Respondents was scheduled for hearing on 11 June
2010. However, Respondents only furnished [petitioners] a copy of the Motion on
10 June 2010, or just 1 day before the scheduled hearing, which was in clear
violation of the 3-day notice rule.[14]

On 29 June 2010, the RTC issued an Order quashing both warrants and directing
that “all the items seized from the respondents be returned x x x.”[15] According to
the RTC, petitioners should have identified which specific computer had the pirated
software.[16] The RTC added that no criminal charge has been filed yet, despite the
fact that the seized items have been in petitioners’ possession for several weeks
since the warrants were issued. Lastly, the RTC dismissed the petitioners’
contention that the three-day notice rule was not complied with because petitioners
were already notified of the motion personally.[17]

On 8 July 2010, petitioners received a copy of the Order, and Deputy Sheriff
Edgardo Reyes of the RTC also effected the return of the seized items, in
compliance with the RTC’s Order.[18]

Petitioners filed an Urgent Manifestation and Motion for the Issuance of a Status
Quo Order on 8 July 2010 wherein they alleged that: (1) they intend to file a Motion
for Reconsideration of the Order; and (2) the Order was not immediately
executory.[19] Respondents received a copy of the motion the day it was filed.

On 9 July 2010, respondents moved to expunge petitioners’ motion for

reconsideration, saying that petitioners failed to comply with the three-day notice
rule.[20] The hearing on the motion was set on 13 July 2010. A copy of the motion
was received by petitioners on 20 July 2010.[21]

On 15 July 2010, petitioners filed a motion for reconsideration of the

Order.[22] Respondents filed their Comment/Opposition[23] to the motion, which was
received by petitioners on 12 August 2010.[24]

The RTC denied petitioners’ motion for reconsideration in its Order dated 27 August
2010.[25]

Petitioners filed a petition for certiorari[26] under Rule 65 on 8 November 2010

before the Court of Appeals. Petitioners alleged that the RTC committed grave
abuse of discretion in granting the Motion to Quash despite: (1) respondents’ failure
to comply with the three-day notice requirement; and (2) the existence of probable
cause, and personal knowledge of the warrant applicant.

The Ruling of the CA

The CA denied the petition for certiorari. The appellate court held that:
In the instant case, when the court a quo ordered petitioners to submit their
comment on the motion to quash, it was, in effect, giving petitioners their day in
court. Thus, while the [three]-day notice rule was not strictly observed, its purpose
was still satisfied when respondent judge did not immediately rule on the motion
giving petitioners x x x the opportunity to study and oppose the arguments stated
in the motion.[27]

Hence, this petition.

The Issue

The instant petition raised only one issue, to wit:

The Honorable Court of Appeals erred in ruling that Judge Amor Reyes of Branch
21, Regional Trial Court of Manila did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing its Orders dated 29 June 2010
and 27 August 2010, quashing Search Warrant Nos. 10-[1]5912 and 10-[1]5913 and
directing the immediate release of the items seized pursuant to the said warrants,
despite the pendency of appellate proceedings.[28]

The Ruling of the Court

We rule that strict compliance with the three-day notice rule may be relaxed in this
case. However, we sustain petitioners’ contention that there was probable cause for
issuance of a warrant, and the RTC and CA should have upheld the validity of both
warrants.

Compliance with the three-day notice rule

In Anama v. Court of Appeals,[29] we ruled that the three-day notice rule is not
absolute. The purpose of the rule is to safeguard the adverse party’s right to due
process. Thus, if the adverse party was given a reasonable opportunity to study the
motion and oppose it, then strict compliance with the three-day notice rule may be
dispensed with.

As correctly pointed out by the CA:

In the instant case, when the court a quo ordered petitioners to submit their
comment on the motion to quash, it was, in effect, giving petitioners their day in
court. Thus, while the [three]-day notice rule was not strictly observed, its purpose
was still satisfied when respondent judge did not immediately rule on the motion
giving petitioners x x x the opportunity to study and oppose the arguments stated
in the motion.[30]

Existence of probable cause

Under Section 1 of Rule 45 of the Rules of Court, petitions for review by certiorari
“shall raise only questions of law.” A question of fact exists when there is a doubt
as to the truth of certain facts, and it can only be resolved through a reexamination
of the body of evidence.[31]

In Microsoft Corporation v. Maxicorp, Inc.,[32] we ruled that the existence of

probable cause is a question of fact.[33] In the same case, we also stated that:

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. 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.[34]

This Court is not a trier of facts. As a general rule, we defer to the lower courts’
appreciation and evaluation of evidence.[35] This general rule, however, is not
absolute. We will review the factual findings of the CA in any of the following
instances:

(1) when the factual findings of the Court of Appeals and the trial court are
contradictory;
(2) when the conclusion is a finding grounded entirely on speculation, surmises, or
conjectures;
(3) when the inference made by the Court of Appeals from its findings of fact is
manifestly mistaken, absurd, or impossible;
(4) when there is a grave abuse of discretion in the appreciation of facts;
(5) when the Appellate Court, in making its findings, went beyond the issues of the
case and such findings are contrary to the admissions of both appellant and
appellee;
(6) when the judgment of the Court of Appeals is premised on a misapprehension
of facts;
(7) when the Court of Appeals failed to notice certain relevant facts which, if
properly considered, would justify a different conclusion;
(8) when the findings of fact are themselves conflicting;
(9) when the findings of fact are conclusions without citation of the specific
evidence on which they are based; and
(10) when the findings of fact of the Court of Appeals are premised on the absence
of evidence but such findings are contradicted by the evidence on record.[36]

In this case, we find reason to overturn the rulings of the RTC and CA, since there
was grave abuse of discretion in the appreciation of facts. The CA sustained the
quashal of the warrant because the witnesses had “no personal knowledge of the
facts upon which the issuance of the warrants may be justified,”[37] and the
applicants and the witnesses merely relied on the screen shots acquired from the
confidential informant.[38]

We disagree with the conclusions of the CA. The assailed CA Decision itself stated:

Initial hearsay information or tips from confidential informants could very well serve
as basis for the issuance of a search warrant, if followed up personally by the
recipient and validated.[39]
Looking at the records, it is clear that Padilla and his companions were able to
personally verify the tip of their informant. In his Affidavit submitted to Judge Amor
Reyes prior to the issuance of the warrant, Padilla stated that:

At the time that I was inside the office premises of the NEW FIELDS, I saw the
Product Keys or Product Identification Numbers of the ADOBE and MICROSOFT
computer software programs installed in some of the computer units. Ms. Serrano
and Mr. Moradoz were able to pull up these data since they were allowed to use
some of the computers of the target companies in line with the pretext that we
used to gain entry into NEW FIELDS. I actively read and attentively observed the
information reflected from the monitor display unit of the computers that Ms.
Serrano and Mr. Moradoz were able to use. x x x.[40]

As mentioned earlier, Padilla has been trained to distinguish illegally reproduced

Adobe and Microsoft software. Thus, in his Affidavit, he stated that:

xxxx

6. I suspect that the ADOBE and MICROSOFT computer software programs that are
being used in the premises of NEW FIELDS are unauthorized, illegal or unlicensed
copies because of the following reasons:

6.1. At least two (2) computer units are using a common Product Identification
Number of MICROSOFT and ADOBE software. This is one indication that the
software being used is unlicensed or was illegally reproduced or copied. All ADOBE
and MICROSOFT computer software programs should only be used in one computer
unit, unless they avail of an Open License Agreement from the computer software
developer, which [was not obtained by] NEW FIELDS. x x x.[41]
The evidence on record clearly shows that the applicant and witnesses were able to
verify the information obtained from their confidential source. The evidence likewise
shows that there was probable cause for the issuance of a search warrant. Thus,
the requirement of personal knowledge of the applicant and witnesses was clearly
satisfied in this case.

WHEREFORE, the petition is GRANTED. The Decision dated 28 June 2012 and the
Resolution dated 30 January 2013 of the Court of Appeals, upholding the 29 June
2010 and 27 August 2010 Orders of the Regional Trial Court, are
hereby REVERSED and SET ASIDE. Search Warrant Nos. 10-15912 and 10-15913
are declared valid.

THIRD DIVISION
[ G.R. No. 189669, February 16, 2015 ]
PILIPINAS SHELL PETROLEUM CORPORATION AND PETRON
CORPORATION, PETITIONERS, VS. ROMARS INTERNATIONAL
GASES CORPORATION, RESPONDENT.

DECISION

PERALTA, J.:

This deals with the Petition for Review on Certiorari under Rule 45 of the Rules of
Court praying that the Decision[1] of the Court of Appeals (CA), dated March 13,
2009, and the Resolution[2] dated September 14, 2009, denying petitioner's motion
for reconsideration thereof, be reversed and set aside.

The antecedent facts are as follow:

Petitioners received information that respondent was selling, offering for sale, or
distributing liquefied petroleum gas (LPG) by illegally refilling the steel cylinders
manufactured by and bearing the duly registered trademark and device of
respondent Petron. Petron then obtained the services of a paralegal investigation
team who sent their people to investigate. The investigators went to respondent's
premises located in San Juan, Baao, Camarines Sur, bringing along four empty
cylinders of Shellane, Gasul, Total and Superkalan and asked that the same be
refilled. Respondent's employees then refilled said empty cylinders at respondent's
refilling station. The refilled cylinders were brought to the Marketing Coordinator of
Petron Gasul who verified that respondent was not authorized to distribute and/or
sell, or otherwise deal with Petron LPG products, and/or use or imitate any Petron
trademarks. Petitioners then requested the National Bureau of Investigation (NBI)
to investigate said activities of respondent for the purpose of apprehending and
prosecuting establishments conducting illegal refilling, distribution and/or sale of
LPG products using the same containers of Petron and Shell, which acts constitute a
violation of Section 168,[3] in relation to Section 170[4] of Republic Act (R.A.) No.
8293, otherwise known as the Intellectual Property Code of the Philippines, and/or
Section 2[5] of R.A. No. 623, otherwise known as An Act To Regulate the Use of Duly
Stamped or Marked Bottles, Boxes, Casks, Kegs, Barrels and Other Similar
Containers.

The NBI proceeded with their investigation and reportedly found commercial
quantities of Petron Gasul and Shellane cylinders stockpiled at respondent's
warehouse. They also witnessed trucks coming from respondent's refilling facility
loaded with Gasul, Shellane and Marsflame cylinders, which then deposit said
cylinders in different places, one of them a store called “Edrich Enterprises” located
at 272 National Highway, San Nicolas, Iriga City. The investigators then
bought Shellane and Gasul cylinders from Edrich Enterprises, for which they were
issued an official receipt.

Thus, the NBI, in behalf of Petron and Shell, filed with the Regional Trial
Court of Naga City (RTC-Naga), two separate Applications for Search
Warrant for Violation of Section 155.1,[6] in relation to Section 170[7] of R.A. No.
8293 against respondent and/or its occupants. On October 23, 2002, the RTC-
Naga City issued an Order granting said Applications and Search Warrant Nos.
2002-27 and 2002-28 were issued. On the same day, the NBI served the warrants
at the respondent's premises in an orderly and peaceful manner, and articles or
items described in the warrants were seized.

On November 4, 2002, respondent filed a Motion to Quash Search Warrant Nos.

2002-27 and 2002-28, where the only grounds cited were: (a) there was no
probable cause; (b) there had been a lapse of four weeks from the date of the test-
buy to the date of the search and seizure operations; (c) most of the cylinders
seized were not owned by respondent but by a third person; and (d) Edrich
Enterprises is an authorized outlet of Gasul and Marsflame. In an Order dated
February 21, 2003, the RTC-Naga denied the Motion to Quash.

However, on March 27, 2003, respondent's new counsel filed an Appearance with
Motion for Reconsideration. It was only in said motion where respondent raised for
the first time, the issue of the impropriety of filing the Application for Search
Warrant at the RTC-Naga City when the alleged crime was committed in a
place within the territorial jurisdiction of the RTC-Iriga City. Respondent
pointed out that the application filed with the RTC-Naga failed to state any
compelling reason to justify the filing of the same in a court which does not have
territorial jurisdiction over the place of the commission of the crime, as required by
Section 2 (b), Rule 126 of the Revised Rules of Criminal Procedure. Petitioner
opposed the Motion for Reconsideration, arguing that it was already too late for
respondent to raise the issue regarding the venue of the filing of the application for
search warrant, as this would be in violation of the Omnibus Motion Rule.

In an Order dated July 28, 2003, the RTC-Naga issued an Order granting
respondent's Motion for Reconsideration, thereby quashing Search Warrant Nos.
2002-27 and 2002-28.

Petitioner then appealed to the CA, but the appellate court, in its Decision dated
March 13, 2009, affirmed the RTC Order quashing the search warrants. Petitioner's
motion for reconsideration of the CA Decision was denied per Resolution dated
September 14, 2009.

Elevating the matter to this Court via a petition for review on certiorari, petitioner
presents herein the following issues:

A.

THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT VENUE IN AN

APPLICATION FOR SEARCH WARRANT IS JURISDICTIONAL. THIS IS BECAUSE A
SEARCH WARRANT CASE IS NOT A CRIMINAL CASE.

B.

THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT RESPONDENT'S

MOTION TO QUASH IS NOT SUBJECT TO THE OMNIBUS MOTION RULE AND THAT
THE ISSUE OF LACK OF JURISDICTION MAY NOT BE WAIVED AND MAY EVEN BE
RAISED FOR THE FIRST TIME ON APPEAL.[8]

Petitioner's arguments deserve closer examination.

Section 2, Rule 126 of the Revised Rules of Criminal Procedure provides thus:
SEC. 2. Court where applications for search warrant shall be filed. - An application
for search warrant shall be filed with the following:
(a) Any court within whose territorial jurisdiction a crime was committed.

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

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

The above provision is clear enough. Under paragraph (b) thereof, the application
for search warrant in this case should have stated compelling reasons why the
same was being filed with the RTC-Naga instead of the RTC-Iriga City, considering
that it is the latter court that has territorial jurisdiction over the place where the
alleged crime was committed and also the place where the search warrant was
enforced. The wordings of the provision is of a mandatory nature, requiring a
statement of compelling reasons if the application is filed in a court which does not
have territorial jurisdiction over the place of commission of the crime. Since
Section 2, Article III of the 1987 Constitution guarantees the right of persons to be
free from unreasonable searches and seizures, and search warrants constitute a
limitation on this right, then Section 2, Rule 126 of the Revised Rules of Criminal
Procedure should be construed strictly against state authorities who would be
enforcing the search warrants. On this point, then, petitioner's application for a
search warrant was indeed insufficient for failing to comply with the requirement to
state therein the compelling reasons why they had to file the application in a court
that did not have territorial jurisdiction over the place where the alleged crime was
committed.

Notwithstanding said failure to state the compelling reasons in the application, the
more pressing question that would determine the outcome of the case is, did the
RTC-Naga act properly in taking into consideration the issue of said defect in
resolving respondent's motion for reconsideration where the issue was raised for
the very first time? The record bears out that, indeed, respondent failed to include
said issue at the first instance in its motion to quash. Does the omnibus motion
rule cover a motion to quash search warrants?

The omnibus motion rule embodied in Section 8, Rule 15, in relation to Section 1,
Rule 9, demands that all available objections be included in a party's motion,
otherwise, said objections shall be deemed waived; and, the only grounds the
court could take cognizance of, even if not pleaded in said motion are: (a) lack of
jurisdiction over the subject matter; (b) existence of another action pending
between the same parties for the same cause; and (c) bar by prior judgment or by
statute of limitations.[9] It should be stressed here that the Court has ruled in a
number of cases that the omnibus motion rule is applicable to motions to quash
search warrants.[10] Furthermore, the Court distinctly stated in Abuan v.
People,[11] that “the motion to quash the search warrant which the accused
may file shall be governed by the omnibus motion rule, provided, however,
that objections not available, existent or known during the proceedings for
the quashal of the warrant may be raised in the hearing of the motion to
suppress x x x.”[12]

In accordance with the omnibus motion rule, therefore, the trial court could only
take cognizance of an issue that was not raised in the motion to quash if, (1) said
issue was not available or existent when they filed the motion to quash the search
warrant; or (2) the issue was one involving jurisdiction over the subject
matter. Obviously, the issue of the defect in the application was available and
existent at the time of filing of the motion to quash. What remains to be answered
then is, if the newly raised issue of the defect in the application is an issue of
jurisdiction.

In resolving whether the issue raised for the first time in respondent's motion for
reconsideration was an issue of jurisdiction, the CA rationcinated, thus:

It is jurisprudentially settled that the concept of venue of actions in criminal cases,

unlike in civil cases, is jurisdictional. The place where the crime was committed
determines not only the venue of the action but is an essential element of
jurisdiction. It is a fundamental rule that for jurisdiction to be acquired by courts in
criminal cases, the offense should have been committed or any one of its essential
ingredients should have taken place within the territorial jurisdiction of the
court. Territorial jurisdiction in criminal cases is the territory where the court has
jurisdiction to take cognizance or to try the offense allegedly committed therein by
the accused. Thus, it cannot take jurisdiction over a person charged with an
offense allegedly committed outside of that limited territory.[13]

Unfortunately, the foregoing reasoning of the CA, is inceptionally flawed, because

as pronounced by the Court in Malaloan v. Court of Appeals,[14] and reiterated in the
more recent Worldwide Web Corporation v. People of the Philippines,[15] to wit:

x x x as we held in Malaloan v. Court of Appeals, an application for a search

warrant is a “special criminal process,” rather than a criminal action:
The basic flaw in this reasoning is in erroneously equating the application
for and the obtention of a search warrant with the institution and
prosecution of a criminal action in a trial court. It would thus categorize
what is only a special criminal process, the power to issue which is
inherent in all courts, as equivalent to a criminal action, jurisdiction over which is
reposed in specific courts of indicated competence. It ignores the fact that the
requisites, procedure and purpose for the issuance of a search warrant are
completely different from those for the institution of a criminal action.

For, indeed, a warrant, such as a warrant of arrest or a search warrant, merely

constitutes process. A search warrant is defined in our jurisdiction as an order in
writing issued in the name of the People of the Philippines signed by a judge and
directed to a peace officer, commanding him to search for personal property and
bring it before the court. A search warrant is in the nature of a criminal process
akin to a writ of discovery. It is a special and peculiar remedy, drastic in its nature,
and made necessary because of a public necessity.

In American jurisdictions, from which we have taken our jural concept and
provisions on search warrants, such warrant is definitively considered
merely as a process, generally issued by a court in the exercise of its
ancillary jurisdiction, and not a criminal action to be entertained by a court
pursuant to its original jurisdiction. x x x. (Emphasis supplied)

Clearly then, an application for a search warrant is not a criminal action. x

x x[16] (Emphasis supplied)

The foregoing explanation shows why the CA arrived at the wrong conclusion. It
gravely erred in equating the proceedings for applications for search warrants with
criminal actions themselves. As elucidated by the Court, proceedings for said
applications are not criminal in nature and, thus, the rule that venue is jurisdictional
does not apply thereto. Evidently, the issue of whether the application should have
been filed in RTC-Iriga City or RTC-Naga, is not one involving jurisdiction because,
as stated in the afore-quoted case, the power to issue a special criminal
process is inherent in all courts.

Inferring from the foregoing, the Court deems it improper for the RTC-Naga to have
even taken into consideration an issue which respondent failed to raise in its motion
to quash, as it did not involve a question of jurisdiction over the subject matter. It
is quite clear that the RTC-Naga had jurisdiction to issue criminal processes such as
a search warrant.
Moreover, the Court must again emphasize its previous admonition in Spouses
Anunciacion v. Bocanegra,[17] that:

We likewise cannot approve the trial court's act of entertaining supplemental

motions x x x which raise grounds that are already deemed waived. To do so
would encourage lawyers and litigants to file piecemeal objections to a complaint in
order to delay or frustrate the prosecution of the plaintiff's cause of action.[18]

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals,

dated March 13, 2009, and the Resolution dated September 14, 2009 in CA-G.R. CV
No. 80643 are REVERSED. The Order dated February 21, 2003 issued by the
Regional Trial Court of Naga, Camarines Sur, Branch 24, denying respondent's
motion to quash, is REINSTATED.

SECOND DIVISION
[ G.R. No. 199371, February 03, 2016 ]
PETRON LPG DEALERS ASSOCIATION AND TOTAL GAZ LPG
DEALERS ASSOCIATION, PETITIONERS, VS. NENA C. ANG,
ALISON C. SY, NELSON C. ANG, RENATO C. ANG, AND/OR
OCCUPANTS OF NATIONAL PETROLEUM CORPORATION,
RESPONDENTS.

DECISION

DEL CASTILLO, J.:

Facts discovered during surveillance operations conducted by the authorities on the

basis of information and evidence provided by the complainants constitute personal
knowledge which could form the basis for the issuance of a search warrant.

This Petition for Review on Certiorari[1] seeks to set aside the September 2, 2011
Decision[2] of the Court of Appeals (CA) in CA-G.R. CV No. 89220 and its November
17, 2011 Resolution[3] dismissing petitioners' appeal and denying their Motion for
Reconsideration, respectively.

Factual Antecedents
Petitioners Petron LPG Dealers Association and Total Gaz LPG Dealers Association,
together with other liquefied petroleum gas (LPG) associations, filed a letter-
complaint[4] before the National Bureau of Investigation-Ilocos Regional Office (NBI-
IRO), requesting assistance in the surveillance, investigation, apprehension and
prosecution of respondents Nena C. Ang, Alison C. Sy, Nelson C. Ang, Renato C.
Ang, and National Petroleum Corporation (Nation Gas) for alleged illegal trading of
LPG products and/or underfilling, possession and/or sale of underfilled LPG products
in violation of Sections 2 (a) and (c), in relation to Sections 3 and 4 of Batas
Pambansa Blg. 33[5] as amended by Presidential Decree No. 1865[6] (BP 33, as
amended), which provide -

Section 2. Prohibited Acts. - The following acts are prohibited and penalized:

(a) Illegal trading in petroleum and/or petroleum products;

(b) x x x x

(c) Underdelivery or underfilling beyond authorized limits in the sale of petroleum

products or possession of underfilled liquefied petroleum gas cylinder for the
purpose of sale, distribution, transportation, exchange or barter;

xxxx

Sec. 3. Definition of terms, For the purpose of this Act, the following terms shall be
construed to mean:

Illegal trading in petroleum and/or petroleum products -

xxxx

(C) Refilling of liquefied petroleum gas cylinders without authority from said
Bureau, or refilling of another company's or firm's cylinders without such company's
or firm's written authorization;

xxxx

Sec. 4. Penalties. Any person who commits any act herein prohibited shall, upon
conviction, be punished with a fine of not less than twenty thousand pesos
(P20,000) but not more than fifty thousand pesos (P50,000), or imprisonment of at
least two (2) years but not more than five (5) years, or both, in the discretion of
the court. In cases of second and subsequent conviction under this Act, the penalty
shall be both fine and imprisonment as provided herein. Furthermore, the
petroleum and/or petroleum products, subject matter of the illegal trading,
adulteration, shortselling, hoarding, overpricing or misuse, shall be forfeited in
favor of the Government: Provided, That if the petroleum and/or petroleum
products have already been delivered and paid for, the offended party shall be
indemnified twice the amount paid, and if the seller who has not yet delivered has
been fully paid, the price received shall be returned to the buyer with an additional
amount equivalent to such price; and in addition, if the offender is an oil company,
marketer, distributor, refiller, dealer, sub-dealer and other retail outlets, or hauler,
the cancellation of his license.

Trials of cases arising from this Act shall be terminated within thirty (30) days after
arraignment.

When the offender is a corporation, partnership, or other juridical person, the

president, the general manager, managing partner, or such other officer charged
with the management of the business affairs thereof, or employee responsible for
the violation shall be criminally liable; in case the offender is an alien, he shall be
subject to deportation after serving the sentence.

If the offender is a government official or employee, he shall be perpetually

disqualified from office.

In particular, respondents were alleged to be refilling Shellane, Gasul, Totalgaz,

Starflame, and Superkalan Gaz LPG cylinders and selling, distributing and
transporting the same without the required written authorization from the alleged
respective owners of these cylinders - namely, Pilipinas Shell Petroleum
Corporation, Petron Gasul Corporation, Total (Philippines) Corporation, Caltex
(Philippines) Corporation (Caltex), and Superkalan Gaz Corporation.

Acting on the letter-complaint, the NBI-IRO - through its agent Marvin de Jemil (De
Jemil) - conducted surveillance and test-buy operations. Thus, on November 24,
2005, De Jemil and an undercover NBI asset, Leonardo Antonio (Antonio),
proceeded to the sales office of one of Nation Gas's alleged customers in Vigan City,
Barba Gas Marketing Center (Barba Gas) - a dealer of LPG and cylinders. De Jemil
and Antonio waited until a Barba Gas delivery truck was loaded with Starflame LPG
cylinders. The truck then left, with De Jemil's vehicle tailing behind. The truck
proceeded to and entered a fenced compound located in Magsingal, Ilocos Sur. The
entrance to the compound contained a sign which read "LPG Refilling Plant". De
Jemil interviewed residents within the vicinity, and it was learned that the
compound belonged to or was occupied by Nation Gas.
De Jemil and Antonio waited at a distance. After about one hour, the Barba Gas
truck emerged from the compound. De Jemil then followed the truck back to the
Barba Gas sales office at Jose Singson street in Vigan, where the refilled Starflame
LPG cylinders were unloaded. The two then proceeded to the test-buy phase of the
operation; with an empty eleven-kilogram (11 kg.) Starflame LPG tank in hand,
they went to Barba Gas and purchased one of the refilled Starflame LPG cylinders
unloaded from the truck. The Barba Gas employee took De Jemil's empty cylinder
and replaced it with a filled one. De Jemil paid P510.00 for the filled cylinder and
received a dated receipt[7] for the purchase. Thereafter, the filled Starflame LPG
cylinder was examined, weighed, inspected, marked, and photographed.

Ruling of the Regional Trial Court

On December 7, 2005, the NBI, through De Jemil, filed two Applications for Search
Warrant[8] to conduct a search of the Magsingal LPG refilling plant. The applications
were filed before the Regional Trial Court (RTC) of Bauang, La Union. Judge
Ferdinand A. Fe' of RTC Branch 67 propounded the required searching questions, to
which De Jemil and Antonio provided the answers.[9] De Jemil further submitted a
sketch and vicinity/location map[10] of the place to be searched; a December 6,
2005 Certification[11] or authority to apply for a search warrant issued by his
superior, Atty. Rustico Q. Vigilia, NBI-IRO Regional Director; the receipt for the
test-buy refilled Starflame LPG cylinder obtained from Barba Gas on November 24,
2005; written Certifications[12] to the effect mat Nation Gas is not an authorized LPG
refiller of Pilipinas Shell Petroleum Corporation, Petron Gasul Corporation, Total
(Philippines) Corporation, Caltex and, Superkalan Gaz Corporation; corporate
documents of Nation Gas obtained from the Securities and Exchange Commission
(SEC); and photographs[13] of the Barba Gas delivery truck involved in the refilling
operation on November 24, 2005, unloading of the refilled LPG cylinders from the
delivery truck after coming from the Magsingal refilling plant, the refilled Starflame
LPG cylinder purchased and obtained from the test-buy, and the blank seal covering
the test-buy refilled Starflame LPG cylinder - supporting the allegation that the
refilling was not authorized as the seal was not a Caltex Starflame seal.

The trial court issued Search Wan-ant Nos. 2005-59 and 2005-60,[14] which were
served the following day, or on December 8, 2005, at the Magsingal LPG refilling
plant. Items specified in the search warrants were seized and duly inventoried and
receipted.[15] Thereafter, a Consolidated Return of Search Warrants[16] was filed.

On February 7, 2006, respondents filed a Motion to Quash[17] Search Warrant Nos.

2005-59 and 2005-60, arguing that the issuing court did not comply with the
requirements for issuance of a valid search warrant; that there is no probable cause
to issue the subject search warrants, as the certifications issued by the
complainants - to the effect that Nation Gas was not an authorized refiller -was not
authenticated, the same being mere private documents which required
authentication; that De Jemil and Antonio have no personal knowledge of the
charges, as well as the truthfulness and authenticity of said certifications; that the
issuing court should not have consolidated the two applications, but should have
considered them separately in order to arrive at an independent evaluation thereof;
that the seizure of Shellane, Gasul, Total Gaz, and Superkalan cylinders was
unlawful since there is no specific allegation and evidence of underfilling or illegal
refilling - if at all, the inspection was limited to determining if the cylinders were
refilled with or without the authority of the complainants; that as a result, the
warrants issued were illegal general warrants; and that the warrants covered
machinery and equipment classified as real property.

On August 4, 2006, the issuing court released an Order[18] quashing the subject
warrants. It held that De Jemil and Antonio had no personal knowledge that Nation
Gas was not an authorized LPG refiller of the complaining LPG
companies/associations; that no member or representative of the complainants was
presented as witness to the search warrant applications; that there is no evidence
of illegal refilling since De Jemil and Antonio did not witness the supposed refilling
of Barba Gas's Starflame LPG cylinders - including the test-buy cylinder - by Nation
Gas; that the certifications issued by the LPG companies were hearsay and not
based on personal knowledge, since the testimonies or depositions of those who
issued them were not taken and presented to the issuing court; that Caltex's
certification does not at all state that Nation Gas was an unauthorized refiller; and
that the testimonies or depositions of those who tested the Starflame cylinder -who
merely issued a certification of test results - were not taken and submitted to the
court, thus rendering said certification mere hearsay. The issuing court concluded
that there is no probable cause to issue the subject warrants, and there is no
reasonable ground to believe that an offense has been committed by the
respondents. It decreed, thus:

WHEREFORE, premises considered, Search Warrants Nos. 2005-59 and 2005-60 are
hereby ordered QUASHED for lack of probable cause.

The objects seized by virtue thereof are declared inadmissible for any purpose. The
applicant, NBI Supervising Agent Marvin E. De Jemil, or any of his authorized
representatives, who was authorized to temporarily retain possession and custody
of the seized goods/objects for safekeeping at the warehouse located at Barangay
Dilan, Urdaneta, Pangasinan, is ordered to immediately return all the seized items
to the respondents.

SO ORDERED.[19]
Petitioners filed a Motion for Reconsideration;[20] however, the same was denied in
a January 11, 2006 Order.[21]

Ruling of the Court of Appeals

Petitioners interposed an appeal before the CA. On September 2, 2011, the assailed
Decision was rendered denying petitioners' appeal. The appellate court held, as
follows:

The appellants[22] argue that aside from the testimony of De Jemil and Antonio,
other documents were presented at the time of the hearing on the application for
Search Warrant No. 2005-59. They posit that these are sufficient to establish
probable cause and as such, there was no need for the presentation of persons who
certified that Nation was not authorized to refill the branded LPG cylinders. They
point out that probable cause is only concerned with probabilities and the standard
for its determination is only that of a reasonable prudent man. They stress that
after the surveillances and test-buy operations done by De Jemil and Antonio, the
two already acquired personal knowledge of the offenses committed by the
respondents-appellees.[23] It is claimed too that the RTC's finding, that the
certification did not state Nation was not authorized to refill, was a vain attempt to
steer clear of respondents-appellees' lack of authorization. It is alleged further that
although De Jemil and Antonio did not sign the inspection report detailing the
weight of the LPG cylinder acquired during the test-buy operations, they were
physically present and actually involved in the weighing done, giving them personal
knowledge of the under filling by Nation. The appellants aver too that there is no
proof that those who weighed the acquired cylinder were employed by them.

xxxx

In reviewing what transpired below, the Court's 'task ... is not to conduct a de
novo determination of probable cause but only to determine whether there is
substantial evidence in the records supporting the Judge's decision.' This being the
rule, the petition must fail.

The determination of probable cause for the issuance of a search warrant requires
that the facts surrounding the basis for the application must be within the personal
knowledge of the applicant or his witnesses. If this does not obtain, the finding of
probable cause of a judge may be set aside and the search warrant issued by him
based on his finding may be quashed since 'the Judge must strictly comply with the
requirements of the Constitution and the statutory provisions.' The circumstances
at hand repeal that there is enough basis for the RTC to quash the Subject
Warrants.
De Jemil and Antonio relied on sources furnished to them made by persons not
presented as witnesses. They, thus, testified as to the truth of facts they had no
personal knowledge of. 'Search warrants are not issued on loose, vague or doubtful
basis of fact, nor on mere suspicion or belief.' For instance, de Jemil testified as
follows:

"Q You said that the gas tanks are under filled, is that correct?

A Yes, your Honor.

Q What you mean to convey is that the gas tanks do not contain the required gas to be put inside the
gas tanks required by law?

A Yes, your Honor.

Q How were you able to verify this?

A It was examined and inspected by the personnel of the LPG Dealers Association, your Honor.

xxx

Q Do you know who owns that refilling station in Magsingal?

xxx

A The Nation Petroleum Corporation, your Honor.

Q And you claimed that the refilling is being done in that refilling station...?

A Yes...

Q Why, is it an authorized refilling station for Caltex?

A No, your Honor.

Q ... [W]hat brand of LPG gas is it authorized to make refills?

A He [sic] was not authorized to refill branded LPG cylinders including Caltex LPG cylinders as well as
other branded LPG cylinders, your Honor.

xxx

Q Do you have a certification to show that it is not authorized as a refilling center?

A Yes, your Honor."

while a portion of Antonio's testimony goes:

Q What was the result of the test-buy?

A After [the] testing conducted by Mr. Kenneth Igoy and Mr. Alex Dosuhan of the LPG Dealers
Association, the examination turned out positive that the LPG cylinder subject of the test-buy was
under-filled and that the Nation Gas was also using [an] unauthorized seal..."

[From] their answers, [it could be gleaned that] De Jemil and Antonio had no
personal knowledge that the LPG acquired during the test-buy was underfilled and
that Nation had no authorization. They may have seen a truck carrying empty
cylinders enter Nation's premises and exit after with alleged under-filled cylinders
but the requirement of the law is more precise. They should have had personal
knowledge that the cylinder concerned was under-filled and that Nation lacked
authority. It cannot be ignored that both De Jemil and Antonio did not see the
subject cylinder being filled [nor] did they test its weight personally. Furthermore,
they were just furnished a certification that Nation did not have any right to refill.
Indeed, their respective sworn statements read in part as follows:

'5. I likewise secured a Certification dated 27 August 2005 from Atty. Adarlo who
confirmed that Nation Gas is not one of those entities authorized to refill LPG
cylinders bearing the brands of Pilipinas Shell Petroleum Corporation, Petron
Corporation, Total (Philippines) Corporation, Caltex Philippines, Inc.[,] and
Superkalan Gaz Corporation.'

-oXo-

'5. Pinagbigay-alam sa akin na ang Nation Gas ay walang pahintulot na nagkakarga

ng mga Shellane, Petron Gasul, Totalgaz, Caltex Starflame[,] at Superkalan Gaz na
tangke ng LPG dahil ang Nation [G]as ay Mndi pinahintulutan ng mga nabanggit na
mga lehitimong kompanya.'

WHEREFORE, premises considered, the instant petition is DENIED.

SO ORDERED.[24]

Petitioners filed a Motion for Reconsideration,[25] which was denied through the CA's
second assailed Resolution of November 17, 2011. Hence, the instant Petition.

In an August 28, 2013 Resolution,[26] this Court resolved to give due course to the
Petition.

Issues

Petitioners allege that:

THE COURT OF APPEALS MADE A DECISION NOT IN ACCORD WITH THE REVISED
RULES OF COURT AND THE APPLICABLE DECISIONS OF THE HONORABLE COURT
AS REGARDS THE DETERMINATION OF PERSONAL KNOWLEDGE OF WITNESSES IN
SEARCH WARRANT APPLICATIONS. CERTAINLY, THERE IS A NEED TO REVERSE
AND SET ASIDE THE RULING OF THE COURT OF APPEALS THAT NBI AGENT DE
JEMIL AND HIS WITNESSES HAD NO PERSONAL KNOWLEDGE THAT THE
RESPONDENTS COMMITTED ILLEGAL TRADING AND UNDERFILLING OF LIQUEFIED
PETROLEUM GAS (LPG) PRODUCTS FOR THE PURPOSE OF DETERMINING
PROBABLE CAUSE IN SEARCH WARRANT APPLICATIONS.[27]

Petitioners' Arguments

In their Petition and Reply[28] seeking reversal of the assailed CA dispositions and a
declaration of validity as to the subject Search Warrants, petitioners essentially
argue that in resolving the appeal, the appellate court failed to consider that in
search warrant applications, proof beyond reasonable doubt is not required - rather,
only probable cause is needed; that based on the evidence submitted with the
applications, such probable cause existed; that De Jemil and Antonio had personal
knowledge of the offenses being committed by the respondents, that is, they
actually witnessed the illegal refilling and underfilling of the subject test-buy LPG
cylinder, as the same was examined and weighed in their presence; that under
Section 2(3) of BP 33, as amended, there is a presumption of underfilling when the
seal is broken, absent or removed; that while the complainants' witnesses were not
introduced into the proceedings, De Jemil and Antonio were nonetheless able to
acquire personal knowledge of respondents' illegal acts when they conducted their
surveillance and test-buy operations; and that personal knowledge acquired during
surveillance and investigation conducted based on the tip of a confidential
informant satisfies the requirement of probable cause for the issuance of a search
warrant.[29]

Respondent's Arguments

In their Comment[30] seeking denial of the Petition, respondents claim that the
Petition raises issues of fact; that under the Rules of Criminal Procedure, the
applicant for a search warrant and his witnesses should have personal knowledge of
facts in order to establish probable cause; that the issuing court and the CA are
unanimous in their findings that the applications for search warrant should be
denied; that De Jemil and Antonio have no personal knowledge mat the subject
test-buy LPG cylinder was refilled by respondents, as they did not enter the
premises of the Magsingal LPG refilling plant; that there is no truth to De Jemil and
Antonio's claim that they actually examined and weighed the test-buy LPG cylinder,
as they admitted during the proceedings that it was the LPG dealers' association
that inspected and weighed the same; that the surveillance and test-buy operations
failed to establish the accusations leveled against respondents, and for this reason,
the lack of personal knowledge by De Jemil and Antonio and failure to present the
complainants' witnesses were not cured.

Our Ruling

The Court grants the Petition.

In Del Castillo v. People,[31] the relevant principles governing the issuance of a

search warrant were discussed, as follows:

The requisites for the issuance of a search warrant are: (1) probable cause is
present; (2) such probable cause must be determined personally by the judge; (3)
the judge must examine, in writing and under oath or affirmation, the complainant
and the witnesses he or she may produce; (4) the applicant and the witnesses
testify on the facts personally known to them; and (5) the warrant specifically
describes the place to be searched and the things to be seized. x x x Probable
cause for a search warrant is defined as such facts and circumstances which would
lead a reasonably discreet and prudent man to believe that an offense has been
committed and that the objects sought in connection with the offense are in the
place sought to be searched. A finding of probable cause needs only to rest on
evidence showing that, more likely than not, a crime has been committed and that
it was committed by the accused. Probable cause demands more than bare
suspicion; it requires less than evidence which would justify conviction. The judge,
in determining probable cause, is to consider the totality of the circumstances made
known to him and not by a fixed and rigid formula, and must employ a flexible,
totality of the circumstances standard. x x x[32]

Petitioners claim that respondents are engaged in the illegal trading and refilling of
Shellane, Gasul, Totalgaz, Starflame, and Superkalan Gaz LPG cylinders, as they
were not authorized dealers or refillers of Pilipinas Shell Petroleum Corporation,
Petron Gasul Corporation, Total (Philippines) Corporation, Caltex, and Superkalan
Gaz Corporation. Additionally, they accuse respondents of underfilling LPG
cylinders. To prove illegal trading and refilling, they presented written certifications
to the effect that Nation Gas was not an authorized LPG refiller of Pilipinas Shell
Petroleum Corporation, Petron Gasul Corporation, Total (Philippines) Corporation,
Caltex, and Superkalan Gaz Corporation. And to prove underfilling, they presented
photographs as well as the results of an examination of the refilled Starflame LPG
cylinder obtained through De Jemil's test-buy.

The Court finds the evidence presented sufficient to prove probable cause; the
issuing court and the CA thus patently erred in quashing the search warrants.
Where the findings of fact of the CA are premised on the supposed absence of
evidence and contradicted by the evidence on record, the same cannot bind this
Court.[33]

In Ty v. NBI Supervising Agent De Jemil,[34] the Court declared that what BP 33, as
amended prohibits is the refilling and underfilling of a branded LPG cylinder by a
refiller who has no written authority from the brand owner; this proceeds from the
principle that the LPG brand owner is deemed owner as well of the duly embossed,
stamped and marked LPG cylinders, even if these are in the possession of its
customers or consumers. Such illegal refilling/underfilling may be proved by: 1)
conduct of surveillance operations; 2) the conduct of a test-buy; 3) written
certifications from LPG companies such as Pilipinas Shell Petroleum Corporation,
Petron Gasul Corporation, and Total (Philippines) Corporation detailing and listing
the entities duly authorized to deal in or refill their respective LPG cylinders, and
excluding a particular LPG trader/refiller from the lists contained in said
certifications; and 4) the written report and findings on the test and examination of
the test-buy cylinder. Thus, the Court held:

Probable violation of Sec. 2 (a) of BP 33, as amended

First. The test-buy conducted on April 15, 2004 by the NBI agents, as attested to
by their respective affidavits, tends to show that Omni illegally refilled the eight
branded LPG cylinders for PhP1,582. This is a clear violation of Sec. 2 (a), in
relation to Sees. 3 (c) and 4 of BP 33, as amended. It must be noted that the
criminal complaints, as clearly shown in the complaint-affidavits of Agent De Jemil,
are not based solely on the seized items pursuant to the search warrants but also
on the test-buy earlier conducted by the NBI agents.

Second. The written certifications from Pilipinas Shell, Petron[,] and Total show that
Omni has no written authority to refill LPG cylinders, embossed, marked or stamped
Shellane, Petron Gasul, Totalgaz[,] and Superkalan Gaz. In fact, petitioners neither
dispute this nor claim mat Omni has authority to refill these branded LPG cylinders.

Third. Belying petitioners' contention, the seized items during the service of the
search warrants tend to show that Omni illegally refilled branded LPG cylinders
without authority.

xxxx

As petitioners strongly argue, even if the branded LPG cylinders were indeed owned
by customers, such fact does not authorize Omni to refill these branded LPG
cylinders without written authorization from the brand owners Pilipinas Shell,
Petron[,] and Total. In Yao, Sr. v. People, a case involving criminal infringement of
property rights under Sec. 1.55 of RA 8293, in affirming the courts a quo's
determination of the presence of probable cause, this Court held that from Sec.
155.1 of RA 8293 can be gleaned that 'mere unauthorized use of a container
bearing a registered trademark in connection with the sale, distribution or
advertising of goods or services which is likely to cause confusion, mistake or
deception among the buyers/consumers can be considered as trademark
infringement. The Court affirmed the presence of infringement involving the
unauthorized sale of Gasul and Shellane LPG cylinders and the unauthorized refilling
of the same by Masagana Gas Corporation as duly attested to and witnessed by NBI
agents who conducted the surveillance and test-buys.

Similarly, in the instant case, the fact that Omni refilled various branded LPG
cylinders even if owned by its customers but without authority from brand owners
Perron, Pilipinas Shell[,] and Total shows palpable violation of BP 33, as amended.
As aptly noted by the Court in Yao, Sr. v. People, only the duly authorized dealers
and refillers of Shellane, Petron Gasul and, by extension, Total may refill these
branded LPG cylinders. Our laws sought to deter the pernicious practices of
unscrupulous businessmen.

Fourth. The issue of ownership of the seized branded LPG cylinders is irrelevant and
hence need no belaboring. BP 33, as amended, does not require ownership of the
branded LPG cylinders as a condition sine qua non for the commission of offenses
involving petroleum and petroleum products. Verily, the offense of refilling a
branded LPG cylinder without the written consent of the brand owner constitutes
the offense regardless of the buyer or possessor of the branded LPG cylinder.

After all, once a consumer buys a branded LPG cylinder from the brand owner or its
authorized dealer, said consumer is practically free to do what he pleases with the
branded LPG cylinder. He can simply store the cylinder once it is empty or he can
even destroy it since he has paid a deposit for it which answers for the loss or cost
of the empty branded LPG cylinder. Given such fact, what the law manifestly
prohibits is the refilling of a branded LPG cylinder by a refiller who has no written
authority from the brand owner, Apropos, a refiller cannot and ought not to refill
branded LPG cylinders if it has no written authority from the brand owner.

Besides, persuasive are the opinions and pronouncements by the DOE: brand
owners are deemed owners of their duly embossed, stamped and marked LPG
cylinders even if these are possessed by customers or consumers. The Court
recognizes this right pursuant to our laws, i.e., Intellectual Property Code of the
Philippines. Thus the issuance by the DOE [of] Circular No. 2000-05-007, the letter-
opinion dated December 9, 2004 of then DOE Secretary Vincent S. Perez addressed
to Pilipinas Shell, the June 6, 2007 letter of then DOE Secretary Raphael P.M. Lotilla
to the LPGIA, and DOE Department Circular No. 2007-10-0007 on LPG Cylinder
Ownership and Obligations Related Thereto issued on October 13, 2007 by DOE
Secretary Angelo T. Reyes.

Fifth. The ownership of the seized branded LPG cylinders, allegedly owned by Omni
customers as petitioners adamantly profess, is of no consequence.

The law does not require that the property to be seized should'be owned by the
person against whom the search [warrant] is directed. 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. Petitioners
cannot deny that the seized LPG cylinders were in the possession of Omni, found as
they were inside the Omni compound.

xxxx

Probable violation of Sec. 2 (c) of BP 33, as amended

Anent the alleged violation of Sec. 2 (c) in relation to Sec. 4 of BP 33, as amended,
petitioners strongly argue that there is no probable cause for said violation based
upon an underfilling of a lone cylinder of the eight branded LPG cylinders refilled
during the test-buy. Besides, they point out that there was no finding of underfilling
in any of the filled LPG cylinders seized during the service of the search warrants.
Citing DOE's Bureau of Energy Utilization Circular No. 85-3-348, they maintain that
some deviation is allowed from the exact filled weight. Considering the fact that an
isolated underfilling happened in so many LPG cylinders filled, petitioners are of the
view that such is due to human or equipment error and does not in any way
constitute deliberate underfilling within the contemplation of the law.

Moreover, petitioners cast aspersion on the report and findings of LPG Inspector
Navio of the LPGLA by assailing his independence for being a representative of the
major petroleum companies and that the inspection he conducted was made
without the presence of any DOE representative or any independent body having
technical expertise in determining LPG cylinder underfilling beyond the authorized
quantity.

Again, we are not persuaded.

Contrary to petitioners' arguments, a single underfilling constitutes an offense

under BP 33, as amended by PD 1865, which clearly criminalizes these offenses.
In Perez v. LPG Refillers Association of the Philippines, Inc., the Court affirmed the
validity of DOE Circular No. 2000-06-010 which provided penalties on a per cylinder
basis for each violation x x x.

xxxx

The Court made it clear that a violation, like underfilling, on a per cylinder basis
falls within the phrase of any act as mandated under Sec. 4 of BP 33, as amended.
Ineluetably, the underfilling of one LPG cylinder constitutes a clear violation of BP
33, as amended, The finding of underfilling by LPG Inspector Navio of the LPGIA, as
aptly noted by Manila Assistant City Prosecutor Catalo who conducted a preliminary
investigation, was indeed not controverted by petitioners.[35]

An examination of petitioners' evidence in the instant case reveals that it is

practically identical to that presented in the Ty case. A complaint was filed with the
NBI, which conducted surveillance and test-buy operations; written certifications
were submitted to the effect that the respondent was not an authorized refiller of
the LPG companies' branded cylinders; finally, an inspection of the test-buy cylinder
was conducted, and the results thereof embodied in a written document which was
submitted as evidence in the proceedings. Moreover, photographs taken indicate
that Barba Gas was not an exclusive dealer/distributor of Caltex Starflame cylinders
and LPG products, and that the cylinders involved - including the test-buy cylinder -
belonged to Caltex, the same being stamped with its Starflame mark.

Thus, applying Ty in its entirety to the present case, the Court finds that there
exists probable cause for the issuance of search warrants as applied for by
petitioners. Probable cause for purposes of issuing a search warrant refers to "such
facts and circumstances which could lead a reasonably discreet and prudent man to
believe that an offense has been committed and that the item(s), article(s) or
object(s) sought in connection with said offense or subject to seizure and
destruction by law is in the place to be searched."[36] On the other hand, probable
cause for purposes of filing a criminal information refers to "such facts as are
sufficient to engender a well-founded belief that a crime has been committed and
that respondents are probably guilty thereof. It is such set of facts and
circumstances which would lead a reasonably discreet and prudent man to believe
mat the offense charged in the Information, or any offense included therein, has
been committed by the person sought to be arrested."[37] Thus, while Ty refers to
preliminary investigation proceedings, and the instant case is concerned with
applications for the issuance of search warrants, both are resolved based on the
same degree of proof; the pronouncement in Ty may therefore apply to the present
controversy.

On the claim of lack of personal knowledge, the Court subscribes to petitioners'

argument that facts discovered during surveillance conducted by De Jemil and
Antonio - on the basis of information and evidence provided by petitioners -
constitute personal knowledge which could form the basis for the issuance of a
search warrant. Indeed, as was declared in Cupcupin v. People,[38] which petitioners
cite, the surveillance and investigation conducted by an agent of the NBI obtained
from confidential information supplied to him enabled him to gain personal
knowledge of the illegal activities complained of.

WHEREFORE, the Petition is GRANTED. The September 2, 2011 Decision and

November 17, 2011 Resolution of the Court of Appeals in CA-G.R. CV No. 89220
are REVERSED and SET ASIDE. The validity of Search Warrant Nos. 2005-59 and
2005-60 is SUSTAINED.

SO ORDERED.

SECOND DIVISION
[ G.R. No. 208137, June 08, 2016 ]
MARIA CECILIA OEBANDA, EXECUTIVE DIRECTOR AND/OR
THE OCCUPANTS AND EMPLOYEES OF VISAYAN FORUM
FOUNDATION, INC., PETITIONERS, VS. PEOPLE OF THE
PHILIPPINES, RESPONDENT.

DECISION

CARPIO, ACTING C.J.:

The Case

This is a petition for review on certiorari[1] assailing the (1) Order[2] dated 19
November 2012, denying the Urgent Motion to Quash Search Warrant dated 24
September 2012, and (2) Order[3] dated 3 June 2013, denying the Motion for
Reconsideration dated 26 December 2012, of the Regional Trial Court (RTC) of
Quezon City, Branch 102. The Orders issued by the RTC pertain to Search Warrant
No. 4811(12)[4] for violation of Article 172(2) of the Revised Penal Code or the
crime of falsification by private individuals and use of falsified documents.
 The Facts

In a letter dated 6 August 2012, the United States Office of Inspector General,
through Special Agent Daniel Altman, sought the assistance of the National Bureau
of Investigation (NBI) to investigate alleged financial fraud committed by Visayan
Forum Foundation, Inc. (Visayan Forum), a nonstock, non-profit corporation,
against the United States Agency for International Development (USAID). Visayan
Forum was then receiving funding from USAID which suspected that Visayan Forum
was fabricating documents and official receipts for purchase of goods and services
to justify expenses and advances covered by USAID funding.

On 29 August 2012, two NBI Agents, Atty. Dennis R. Villasfer and Atty. Erickson
Donn R. Mercado, entered the premises of Visayan Forum with principal address at
No. 18, 12th Avenue, Brgy. Socorro, Cubao, Quezon City. The NBI Agents
represented themselves to be part of the audit team of B.F. Medina and Company,
an independent external audit firm accredited by USAID and engaged by Visayan
Forum to conduct an audit of its USAID funds. After gaining entry, the NBI Agents
went through boxes, sifted through documents and photocopied some documents
and receipts.

On 31 August 2012, the NBI Agents, under the authorization of the NBI Deputy
Director for Special Investigation Service, jointly applied for a search warrant with
the RTC of Quezon City, Branch 98. The NBI Agents cited violation of Article 172(2)
of the Revised Penal Code[5] and alleged that petitioners Maria Cecilia Oebanda
(Oebanda), the Executive Director of Visayan Forum, and/or the occupants and
employees of Visayan Forum are in possession or have in their control falsified
private documents which were used and are being used to defraud the donors of
USAID, to its damage and prejudice.

On the same date, Judge Evelyn Corpus-Cabochan (Judge Cabochan), the Presiding
Judge of RTC of Quezon City, Branch 98, conducted a hearing on the application for
search warrant. Plaintiff People of the Philippines presented the following witnesses:
(1) Atty. Dennis R. Villasfer, NBI Agent, Anti-Graft Division; (2) Atty. Erickson Donn
R. Mercado, NBI Agent, Anti-Graft Division; (3) Maria Analie L. Villacorte
(Villacorte), a former bookkeeper of Visayan Forum; and (4) Celestina M. Aguilar
(Aguilar), an auditor from B.F. Medina and Company.

After Judge Cabochan personally examined the applicants, the two NBI Agents, and
their witnesses, and was satisfied of the existence of facts upon which the
application was based, Judge Cabochan issued Search Warrant No. 4811(12)
against Visayan Forum. The relevant portion of the warrant states:
You are hereby commanded to make an immediate search in the day time of the
premises above-described and forthwith seize and take possession of the following
personal property:

a) Following Books of Accounts and records covering periods from 2005-2011:

General Ledger, Subsidiary Ledger on Advances from Employees, Bank Statements,
Reconciliation Statements, Cash Disbursement Books, Check Vouchers, Journal
Vouchers, Daily Time Records, Service Contract of all Employees, Service Contracts
of all Contractors billed to the US AID Port Project, Fund Accountability Statements;

b) Desktops and Laptops of the Finance Manager, Finance Officer, Bookkeeper and
Administration Officer;

c) Unused pre-printed Official Receipts, Official Receipts and Petty Cash Vouchers
which can be bought from bookstore, VFFI Cash Vouchers and Stationeries;

and bring said property to the undersigned to be dealt with as the law directs.

This Search Warrant should be valid for ten (10) days from date of issuance.[6]

In the afternoon of 31 August 2012, the NBI implemented the search warrant
against Visayan Forum and seized more than 30 boxes of documents, as well as the
computers of the finance manager, finance officer, and administration officer.

On 24 September 2012, petitioners filed an Urgent Motion[7] to Quash the Search

Warrant on the ground of lack of probable cause to issue the search warrant.

In an Order dated 19 November 2012, Presiding Judge Ma. Lourdes A. Giron of the
RTC of Quezon City, Branch 102, denied the motion. Judge Cabochan of RTC of
Quezon City, Branch 98, who originally issued the search warrant, inhibited herself
from the case.

On 26 December 2012, petitioners filed a motion for reconsideration. This was

denied in an Order dated 3 June 2013.

Hence, this petition.

The Issue

The main issue is whether the RTC committed reversible error in finding that
probable cause exists to issue Search Warrant No. 4811(12).

The Ruling of the Court

The petition lacks merit.

At the outset, this petition was filed under Rule 45 of the Rules of Court which is
limited to questions of law. 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.

In Microsoft Corp. v. Maxicorp, Inc.,[8] we held that the pivotal issue of whether
there was probable cause to issue the search warrant is a question of fact. In the
present case, the resolution of this issue would require this Court to inquire into the
probative value of the evidence presented before the RTC. Petitioners have raised
an argument that requires us to make an examination of the transcript of
stenographic notes taken during the search warrant proceedings. 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.

Because this Court is not a trier of facts, a re-examination of factual findings cannot
be done through a petition for review on certiorari under Rule 45 of the Rules of
Court. This Court is not duty-bound to analyze and weigh again the evidence
considered in the RTC.[9] Further, this case does not fall under any of the
exceptions[10] laid down in the Rules.

However, in order to put finis to this case, we will discuss and go through the issues
submitted by petitioners.

On whether the judge asked probing and exhaustive questions

Petitioners submit that the judge who issued the search warrant did not sufficiently
ask probing, exhaustive, and extensive questions. Petitioners insist that the judge
must not simply rehash the contents of the affidavits but must make her own
extensive inquiry on the intent and justification of the application.

In an application for search warrant, the mandate of the judge is for him to conduct
a full and searching examination of the complainant and the witnesses he may
produce. 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. 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 stated in the
affidavits/deposition of the applicant and the witnesses.[11]

In the present case, the Transcript of Stenographic Notes,[12] comprised of 72 pages

which was taken during the hearing, shows that Judge Cabochan extensively
interrogated the two NBI Agents who applied for the search warrant. By
representing themselves to be part of the audit team of B.F. Medina and Company,
the two NBI Agents were able to freely enter and move around Visayan Forum's
premises. There, the NBI Agents were able to sufficiently observe the layout of the
office buildings, the location of relevant documents and equipment, and the
movement of the employees. Most importantly, the NBI Agents were able to
distinctly describe the alleged wrongful acts that Visayan Forum committed and was
committing at that time. The relevant portions of NBI Agent Villasfer's testimony
state:

Atty. Villasfer: Your Honor, this document is the Joint Application for Search
Warrant which I executed together with agent Atty. Erickson Donn R. Mercado.
Your Honor, last August 29, 2012 at around 10:00 o'clock in the morning we
conducted a Surveillance together with the auditors from BF Medina. Atty. Erickson
Mercado and I posed as one of the staff of the auditing firm and went to the subject
area and we acted as auditors and we personally observed the documents and the
rooms in the buildings and we saw the other documents and unused receipts
fabricated by the VFFI, Your Honor.

xxxx

Court: When you went to the premises which you wanted to be searched at No. 18
12th Avenue, Brgy. Socorro, Cubao, Quezon City, what have you seen or what have
you observed?

Atty. Villasfer: Your Honor, when we conducted the auditing, we saw from the
documents presented to us located at the building, at the back of the compound
because there are two (2) buildings, Your Honor. At the ground floor, we saw
the altered documents. These are receipts being altered and fabricated for
purposes of their audit being conducted by the B.F. Medina and
Company. Furthermore, we went there to verify the information given by the
witnesses.

xxxx

Court: What other things have you seen when you went there at the subject
premises?
Atty. Villasfer: Official Receipts, Your Honor, Books of Account and records covering
period from 2005 to 2011; General Ledger, Subsidiary Ledger on Advances from
Employees, Bank Statements, Reconciliation Statements, Cash Disbursement
Books, Cash Vouchers, Journal Vouchers, Daily Time Records, Service Contract of
all Employees, Service Contracts of all Contractors billed to the US AID Port Project,
Fund Accountability Statements, Desktops and Laptops of the Finance Manager,
Finance Officer, Bookkeepers and Administrative Officer, unused pre-printed Official
Receipts, Official Receipts and Petty Cash Vouchers which can be bought from
bookstores, VFFI Cash Vouchers and Stationeries, Your Honor.

Court: Earlier, you said that you have access to the folders? Atty. Villasfer: Yes,
Your Honor.

Court: Please clarify. Were you able to really examine one by one all these things,
that's why you were able to identify?

Atty. Villasfer: Yes, Your Honor. We opened the boxes and examined the
folders, and we personally verified and [saw] the Official Receipts, altered
documents are there, Your Honor.[13] (Emphasis supplied)

The other applicant, NBI Agent Mercado, corroborated NBI Agent Villasfer's
testimony and explained what he had observed from the surveillance. The relevant
portions of his testimony provide:

xxxx

Court: Earlier you heard your co-applicant Atty. Villasfer testified, what can you say
about his testimony?

Atty. Mercado: Yes, Your Honor, I confirmed the truthfulness of the statements
being made by my co-applicant and in addition, Your Honor, in the course of our
surveillance and investigation, we also have a chance to photocopy these receipts,
these documents from VFFI and we were able also to make a sketch of the place,
particularly Agent Villasfer together with our one witness, they were able to go to
the second, third floors of both buildings. In our application, we have the attached
sketch of the building, Your Honor. And, in addition, Your Honor, I also observed
the demeanor of the people there, elusive/evasive because we posed as members
or staff of the auditing company, we can freely loiter around without being detected
that we are NBI Agents. We are aware that the people there will not question us
considering that they are familiar with new faces since the auditors bring with them
staff, their OJTs when they go there. So in that case, we can freely access all
possible rooms where these documents subject of this Application for Search
Warrant are kept.[14]

The records also show that the NBI Agents' two witnesses, Villacorte and Aguilar,
submitted their respective affidavits and were subjected to the same probing
questioning by the trial judge. The testimony of Villacorte states:

xxxx

Court: Do you affirm and confirm that you have voluntarily executed your Affidavit
without fear or pressure from anyone?

Ms. Villacorte: Yes, Your Honor.

Court: Now, you tell me how did you become a witness here?

Ms. Villacorte: Because I do not want to become a part of the crime because I
might get involve, Your Honor.

Court: Why, what did you do?

Ms. Villacorte: I resigned from the Visayan Forum last July 15, 2012, Your Honor.

Court: How were the NBI Agents able to get in touch with you in order to utilize you
as a witness now?

Ms. Villacorte: Because at the time of the audit, the auditors came to know me
because I was still there, Your Honor.

Court: Why did they single you out, why not any other employee or employees?

Ms. Villacorte: Because I was the bookkeeper of US AID, Your Honor. Court: How
many bookkeepers are there in your office, if you know?

Ms. Villacorte: The bookkeepers are one of our project bases, Your Honor, and, I
was the one handling the USAID department, Your Honor.

xxxx

Court: x x x. Those pre-printed receipts the applicants want now to be seized,

where are those said receipts?
Ms. Villacorte: In the locker, Your Honor. Court: You are sure about that?

Ms. Villacorte: We have not used it yet and the[y] were left, and that is what they
will use just in case there were remaining unliquidated accounts, Your Honor.

Court: What you did was you used those booklets to cover for the other expenses
of the VFFI?

Ms. Villacorte: Yes, Your Honor.

xxxx

Court: And where are those unused receipts?

Ms. Villacorte: Before the auditors came, we placed those unused receipts in the
boxes.

Court: Including those partially used receipts in a booklet?

Ms. Villacorte: Yes, Your Honor, x x x.

xxxx

Court: As of the date of the application for the Search Warrant you were no longer
connected with the VFFI?

Ms. Villacorte: Yes, Your Honor.

Court: By the way, all these documents stated by the other witness Ms. Aguilar
regarding the things that were asked by Mrs. Oebanda about the pre-printed
receipts, booklets, etcetera, pertaining to questions and answers numbers 23 to 27
of your Sinumpaang Salaysay quoted as follows:

"23. T: Bakit kayo ipinatawag ni Mrs. Oebanda kung natatandaan mo?

S: Sinabi ngapo niya sa amin na may mga auditors na darating para i-audit ang
USAID fund. Nagbigay po sya ng instruction na kailangan punuan ng mga resibo
an[g] mga unliquidated na cash advances."

"24. T: Anong ibig kahulugan ngpunuan ng resibo?

S: Ibig pong sabihin ay maghanap o gumawa po kami ng resibo at pagkatapos ay
gagawa[n] din po namin ng liquidation report at iyon naman ang i-attach namin sa
mga vouchers."

"25. T: Ginawa nyo ba naman ang inuutos ni Mrs. Oebanda?

S: Opo."

"26. T: Alam mo ba na ito ay mali?

S: Alam kopo na ito ay mali."

"27. T: Bakit ginawa mo pa din?

S: Dahil sa takot ko na ako po ay mawalan ng trabaho kapag hindi ako sumunod."

where are those documents as stated in your Sinumpaang Salaysay which you
accomplished or fabricated upon the orders of Mrs. Oebanda?

Ms. Villacorte: Those were the documents we presented to the auditors, Your
Honor.[15]

Aguilar, one of the auditors that was with the NBI Agents when Visayan Forum was
audited, gave a more detailed picture of the fraud indicators which she had
observed in the course of her audit of Visayan Forum. The relevant portions
provide:

xxxx

Court: Earlier, the two applicants here for Search Warrant stated that when they
entered the premises to be searched, they said that they posed as auditors of your
company?

Ms. Aguilar: Yes, Your Honor.

Court: And according to them, you Mrs. Aguilar were with them when they entered
the premises, will you confirm that?

Ms. Aguilar: Yes, Your Honor. I confirm that and also my father, the managing
partner of our firm was with us, Mr. Benjamin F. Medina.

Court: And also everything they have stated about the sketch of the building and
that you are also very much aware of the set-up of that building one and building
two?

Ms. Aguilar: Yes, Your Honor, but on that day, Atty. Dennis came with me to
inspect the various floors of the two buildings. I just made an alibi that it's part of
our audit procedures.

Court: And you also confirm the fact that based on the sketches that are attached
now to the application for Search Warrant, will you confirm that it is also of your
own personal knowledge that those properties listed in their application for Search
Warrant under paragraph 2 sub-paragraphs (a), (b), and (c) were really found
within the subject premises as shown from the marked sketches?

Ms. Aguilar: Yes, Your Honor.

Court: The reason for this is because you were one of the companions of Atty.
Villasfer when you went to the subject premises?

Ms. Aguilar: Yes, Your Honor. And I was also the one who showed to both of
them the altered receipts and invoices and also the other documents
relating to our audit findings.

xxxx

Court: Those things were not covered by your Affidavit, Mrs. Aguilar. Do you
confirm now what Atty. Villasfer manifested a while ago?

Ms. Aguilar: Yes, Your Honor. Actually, it is included in my Affidavit as one of

our audit findings because one of our audit findings [is] alterations of
receipts and invoices. I think it is number ten (10) or eleven (11), Your
Honor. And I showed to the applicants some of the photocopied vouchers
that we notice[d) that were altered because, Your Honor, this organization, we
had the entrance conference [i]n January of this year. Based on routine audits, they
will be given two weeks to prepare for us, but they allow[ed] us to start the audit
only in April. So there were delays in the audit, Your Honor.

Court: It was supposed to be [i]n January 2012 but you were allowed only when?

Ms. Aguilar: April 18, 2012, Your Honor, to be exact. On that date, on April 18,
there were still some missing documents that we already requested [from] them
during our entrance conference, Your Honor. And, we observed that while we
were conducting our audit field work, they were also doing manufacturing
of documents. We clearly observed many documents that were altered
during our audit and I have some examples of photocopie[d] documents. x
x x. Your Honor, this NGO, they received grants from USAID, not only from USAID,
but from other donor agencies, twelve to be exact including the USAID. What they
do is, they received grants and these grants are supposed to help traffic victims
which they have in their different regional offices. However, we validated the
authenticity of the number of the actual beneficiaries from third party
confirmations. We need confirmation with DSWD and we noted that based
on their record and their reports to the DSWD, there were various
inconsistencies. Many, I just included maybe two (2) of the inconsistencies in the
number. And also we validated with the USAID. The report that they submitted
to the USAID, there were also inconsistencies. x x x. So, as auditors, these
are indicators of fraud. x x x.

Court: What were these documents which you discovered: the books of Books of
Accounts, Ledgers, etcetera, as listed in the application?

Ms. Aguilar: Yes, Your Honor. Court: Will you explain further?

Ms. Aguilar: The thirty-two boxes for the check vouchers and journal vouchers were
there, Your Honor[.] [W]hen we went back on Wednesday, August 29, 2012,
[h]owever, there [were] five (5) to six (6) boxes which [were] missing already.

Court: Missing?

Ms. Aguilar: Yes, Your Honor. And, these boxes we initially audited them during our
first month of field work. So what we did, I am curious as an auditor where those
documents are. x x x.

Court: Which are already missing?

Ms. Aguilar: Yes, Your Honor. And, I have also suspicions, Your Honor, of pre-
printed booklets because there are various pre-printed booklets of original receipts
which the company used, they are non-existing anymore. They just used the
company name and the address and they had it printed by the printing press, their
favored printing press and they used it as a sort of justification for their
expenditures. But, as auditors, we are trying to se[e] whether they are valid or not.
So, I am also suspecting that [they are] hiding these documents.

Court: Why did you have suspicions?

Ms. Aguilar: Because, of course, if they had it pre-printed, they wouldn't show it to
us.

Court: What about those other documents, which you suspected were already
missing at the time when you went back to make an audit of these accounts or the
existing ledgers?

Ms. Aguilar: Because during our field work sometime in June, when we audit, there
are schedules from 10:00 to 5:00. We come home then we go there the following
day, we noticed that there were ballpens left on a table and when we check[ed]
the vouchers, most of them they tampered [them] already or they removed
something and they changed [them] to [other] document[s]. So what we
did, we taped the boxes and I signed them to seal them. Those were audited
already, that's what we did. Then I counted it and I knew that five to six boxes
were missing because initially, [there were] thirty-eight (38) boxes. But, thirty-two
(32) [were] only left when we came back that June.

xxxx

Court: Well, that was just your suspicion.

Ms. Aguilar: Yes, just like what I've said, Your Honor, these are indicators of
fraud and indicators of their intentions to conceal or destroy all
incriminating evidence.

xxxx

Ms. Aguilar: x x x. And also we want to secure the computers because the data that
[were] presented to us, attached to [these] documents inside the boxes, they are
computer printed.

Court: That's why you wanted also to get all those computers and the laptops.

Ms. Aguilar: Yes, Your Honor because during the course of our audit, they
changed the figures and dates and sometimes the names of the employees
if it is cash advance.[16] (Emphasis Supplied)

Clearly, the records show that Judge Cabochan personally examined NBI Agents
Villasfer and Mercado, the applicants for the search warrant, as well as their
witnesses, Villacorte and Aguilar. The interrogations conducted by the trial judge
showed that the applicants and their witnesses had personal knowledge of the
offense petitioners committed or were then committing. The judge properly asked
how the applicants came to know of the falsification, where it was committed, what
was involved, the extent of their participation, and what they have seen and
observed inside Visayan Forum's premises. We believe that the questions
propounded on them were searching and probing. The trial judge made an
independent assessment of the evidence submitted and concluded that the
evidence adduced and the testimonies of the witnesses support a finding of
probable cause which warranted the issuance of a search warrant for violation of
Article 172(2) of the Revised Penal Code.

Absent a showing to the contrary, it is presumed that a judicial function has been
regularly performed.[17] The judge has the prerogative to give his own judgment on
the application of the search warrant by his own evaluation of the evidence
presented before him. We cannot substitute our own judgment to that of the judge.

On whether there was probable cause to issue the search warrant

A search warrant is an order in writing issued in the name of the People of the
Philippines, signed by a judge and directed to a peace officer, commanding him to
search for personal property described therein and bring it before the court.[18] The
relevant provisions on the issuance of a search warrant for personal property, as
governed by Rule 126 of the Rules of Court, state:

Section 4. Requisites for issuing search warrant. - A search warrant shall not issue
except upon probable cause in connection with one specific offense to be
determined personally by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce, and particularly describing the
place to be searched and the things to be seized which may be anywhere in the
Philippines.

Section 5. Examination of complainant; record. - The judge must, before issuing

the warrant, personally examine in the form of searching questions and answers, in
writing and under oath, the complainant and the witnesses he may produce on facts
personally known to them and attach to the record their sworn statements,
together with the affidavits submitted.

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

To paraphrase this rule, a search warrant may be issued only if there is probable
cause in connection with a specific offense alleged in an application based on the
personal knowledge of the applicant and his witnesses. This is the substantive
requirement for the issuance of a search warrant. Procedurally, the determination
of probable cause is a personal task of the judge before whom the application for
search warrant is filed, as he has to examine the applicant and his or her witnesses
in the form of "searching questions and answers" in writing and under oath. The
warrant, if issued, must particularly describe the place to be searched and the
things to be seized.[19]

In the issuance of a search warrant, probable cause requires such facts and
circumstances which would lead a reasonably discrete 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.[20] In People v. Punzalan,[21] we
held that there is no exact test for the determination of probable cause in the
issuance of search warrants. It is a matter wholly dependent on the finding of trial
judges in the process of exercising their judicial function.

Here, the records show that the applicants for the search warrant and their
witnesses were able to sufficiently convince the judge of the existence of probable
cause based on their own personal knowledge, or what they have actually seen and
observed, in Visayan Forum's premises. The NBI Agents related to the RTC how
they entered Visayan Forum, in the guise of representing themselves as part of the
audit team of B.F. Medina and Company. The NBI Agents personally saw that
Visayan Forum's employees and occupants altered and fabricated documents and
official receipts covered by USAID funding. They even photocopied some documents
and receipts proving such fabrication. Also, the NBI Agents were able to particularly
describe Visayan Forum's premises, exactly locating the place to be searched with
sketches of the buildings and various floors and rooms. Further, they described in
great detail the things that were seized documents, receipts, books of account and
records, and computers used by Visayan Forum's employees.

Likewise, the NBI Agents' witnesses, Villacorte and Aguilar, were able to
substantiate the statements and allegations of the NBI Agents by testifying on what
they have personally seen and experienced while working in Visayan Forum, and
how they came to know that fraud was being perpetrated by the company. Thus,
the applicants' and their witnesses' testimonies, together with the affidavits they
[presented, are adequate proof to establish that there exists probable cause to
issue the search warrant for violation of Article 172(2) of the Revised Penal Code.

In Century Chinese Medicine Co. v. People,[22] we held that 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.

When a finding of probable cause for the issuance of a search warrant is made by a
trial judge, the finding is accorded respect by the reviewing courts. Here, in issuing
the search warrant, Judge Cabochan sufficiently complied with the requirements set
by the Constitution[23] and the Rules of Court.[24] Therefore, we find nothing
irregular

WHEREFORE, the petition is DENIED. The Orders dated 19 November 2012 and 3
June 2013 of the Regional Trial Court of Quezon City, Branch 102 are AFFIRMED.
The validity of Search Warrant No. 4811(12) is SUSTAINED.

SO ORDERED.

FIRST DIVISION
[ G.R. No. 208775, January 22, 2018 ]
JORGE DABON, a.k.a. GEORGE DEBONE @ GEORGE,
PETITIONER, V. THE PEOPLE OF THE PHILIPPINES,
RESPONDENT.

DECISION

TIJAM, J.:

Before Us is a petition for review on certiorari[1] under Rule 45 of the Rules of Court
filed by petitioner Jorge Dabon (Dabon), questioning the Decision[2] dated July 27,
2012 and Resolution[3] dated July 8, 2013 of the Court of Appeals (CA) in CA-G.R.
CEB-CR No. 01414, affirming the Omnibus Decision[4] dated July 10, 2008 and
Omnibus Order[5] dated February 1, 2010 rendered by the Regional Trial Court
(RTC) of Bohol, Tagbilaran City, Branch 2, in Criminal Case Nos. 11930, 11931 and
11932.

The Facts

Law enforcement agents applied for a search warrant after the surveillance and
test-buy operations conducted by the operatives of the Philippine National Police
(PNP)-Criminal Investigation and Detection Group (CIDG) in Bohol, which confirmed
that Dabon was engaged in illegal drug activity.[6]
Search Warrant No. 15, which armed law enforcement agents to search Dabon's
residence for violation of Sections 11 and 12, Article II of Republic Act (R.A.) No.
9165[7] or the Comprehensive Dangerous Drugs Act of 2002, was issued.[8]

On July 26, 2003, at about 5:30 a.m., Police Inspector Hermano Mallari (P/Insp.
Mallari), Senior Police Officer 2 Arsenio Maglinte (SPO2 Maglinte), SPO1 Noel Triste
(SPO1 Triste), Police Officer 3 John Gilbert Basalo (PO3 Basalo), PO3 David Enterina
(PO3 Enterina), PO2 Gaudioso Datoy (PO2 Datoy) and PO2 Herold Bihag (PO2
Bihag) of the Bohol Criminal Investigation and Detection Team proceeded to an
apartment unit at Boal District, Tagbilaran City where the residence of Dabon is
situated.[9]

Upon reaching the two-storey apartment at about 7:30am, the CIDG operatives
requested Barangay Kagawad Ariel Angalot (Brgy. Kagawad Angalot), City Councilor
Jose Angalot (Councilor Angalot), Sangguniang Kabataan Chairman Marianne
Angalot (SK Chairman Angalot), media representative Charles Responte (Responte)
and Department of Justice (DOJ) representative Zacarias Castro (Castro) to witness
the search.[10]

The group entered the house and the CIDG, together with Brgy. Kagawad Angalot
and SK Chairman Angalot went to the second floor where Dabon and his family
resided. The second floor had two bedrooms, a kitchen and a living room. They
found Eusubio Dumaluan (Dumaluan) in the living room while Dabon was inside one
of the bedrooms.[11]

After P/Insp. Mallari handed the copy of the search warrant to Dabon, the CIDG
operatives searched the kitchen where PO2 Datoy [12] and PO2 Enterina found, in
the presence of Brgy. Kagawad Angalot, drug paraphernalia. The police officers
then frisked Dumaluan and recovered from his pocket, a coin purse, a lighter, a
metal clip, three empty decks of suspected shabu, two pieces of blade and
crumpled tin foil.[13]

The police officers proceeded to search one of the bedrooms where PO2 Datoy and
PO2 Enterina, in the presence of Brgy. Kagawad Angalot, found three plastic
sachets containing suspected shabu, which were hidden in the folded of clothes
inside a drawer. They also recovered the following drug paraphernalia: empty
cellophane wrapper, rolled tinfoil containing suspected shabu residue, twisted
tissues, plastic straw refiller, three pieces of bamboo clip, improvised metal clip,
and blade.[14]

The three plastic sachets and the drug paraphernalia found in the bedroom of
Dabon and the drug paraphernalia recovered from Dumaluan were turned over to
SPO1 Triste who inventoried and placed them in evidence bags in the presence of
Councilor Angalot, Brgy. Kagawad Angalot, SK Chairman Angalot, media
representative Responte and DOJ representative Castro.[15]

On July 28, 2003, PO2 Diola of the Bohol Provincial Office of the PNP Crime
Laboratory received from PO2 Imperina a letter signed by P/Insp.
Mallari[16] requesting the conduct of chemical examination on the seized items. The
letter and the seized items were turned over to P/Insp. David Tan (P/Insp. Tan), a
Forensic Chemical Officer.[17]

The chemical examination and confirmatory test conducted by P/Insp. Tan on the
seized items yielded positive results for the presence of methylamphetamine
hydrochloride.[18]

Two Information were filed against Dabon for violation of Sections 11 and 12,
Article II of R.A. No. 9165, to wit:

Criminal Case No. 11931:

That on or about the 26th day of July 2003, in the City of Tagbilaran, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, did
then and there willfully, unlawfully, feloniously and knowingly have in his
possession, custody and control Three (3) packets of shabu powder totally weighing
0.80 gram and One (1) strip of aluminum foil containing traces of shabu powder,
the accused knowing fully well that the above-mentioned substance which contains
Methylamphetamine Hydrochloride is a dangerous drug and that he did not have
any lawful authority, permit or license to possess the same, to the damage and
prejudice of the Republic of the Philippines.[19]

Criminal Case No. 11932:

That on or about the 26th day of July 2003 in the City of Tagbilaran, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, did
then and there willfully, unlawfully, feloniously and knowingly have in his
possession, custody and control One (1) piece small plastic container (red)
containing several pieces of empty decks of shabu, One (1) piece small plastic
container (transparent) containing several empty cellophane wrapper for shabu,
Two (2) pieces improvised tooter (tin foils), Two (2) pieces hardly twisted tissue,
Four (4) pieces cut-rolled unused tin foils, One (1) piece plastic straw refiller, Three
(3) pieces improvised bamboo clips, One (1) piece improvised metal clip, One piece
blade (half[-]size), One (1) piece cellophane pack containing several empty
cellophane wrapper used for packing shabu, One (1) unit cellphone (Motorola) with
charger, and Cash proceeds amounting to One Thousand Nine Hundred Pesos (PPh
1,900.00) (sic) in difference (sic) bill denomination - the accused knowing fully well
that the above-mentioned items are the instruments, apparatus, or paraphernalia
fit or intended for smoking, consuming, administering, injecting, ingesting, or
introducing a dangerous drug into the body, and that he did not have any lawful
authority, permit or license to possess the same, to the damage and prejudice of
the Republic of the Philippines.[20]

An information for violation of Section 12, Article II of R.A. No. 9165 was filed
against Dumaluan.[21]
For his defense, Dabon argued that he was surprised when he was awakened by
alleged members of the CIDG, who entered his room, pointing guns at him and
telling them that they will conduct a raid.[22]

Dabon and Dumaluan claimed that they were not allowed to witness the search
conducted by the CIDG. Instead, they were ordered to stay and sit in the living
room while other members of the household were locked inside the room of their
house helper.[23]

Ruling of the RTC

In an Omnibus Decision[24] dated July 10, 2008, the RTC ruled that the search
implemented in Dabon's residence was valid and consequently found Dabon guilty
beyond reasonable doubt of violation of Sections 11 and 12, Article II of R.A. No.
9165. The RTC upheld the presumption of regularity in the performance of the
police officers' duties in the absence of ill motives on their part, thus:

WHEREFORE, in Criminal Case No. 11931, the Court find (sic) [Dabon], aka George
Debone @ George, guilty beyond reasonable doubt of the offense of Violation of
Section 11, Article II, of [R.A.] No. 9165, embraced in the afore-quoted
information. There being no aggravating nor mitigating circumstance adduced and
proven at the trial, [Dabon] is hereby sentenced to the indeterminate penalty of
imprisonment of, from TWELVE (12) YEARS and ONE (1) DAY, as minimum to
FOURTEEN (14) YEARS, as maximum, and to pay a fine of THREE HUNDRED
THOUSAND (Php 300,000.00) PESOS, with the accessory penalties of the law, and
to pay the costs.

In Criminal Cases Nos. 11930 and 11932, the Court finds [Dabon], aka George
Debone@ George and [Dumaluan], guilty beyond reasonable doubt of Violation of
Section 12, Article II of [R.A.] No. 9165, embraced in the afore-quoted
informations. There being no aggravating nor mitigating circumstance adduced and
proven at the trial, [Dabon and Dumaluan] are each hereby separately sentenced to
the indeterminate penalty of, SIX (6) MONTHS and ONE (1) DAY, as minimum, to
FOUR (4) YEARS, as maximum, and to pay a fine of TWENTY FIVE THOUSAND (Php
25,000.00) PESOS, with the accessory penalties of the law, and to pay the costs.

In compliance with Par. 7, Section 21, of R.A. [No.] 9165, the evidence in this case
consisting of three (3) sachets of shabu weighing 0.80 gram, and aluminum foil,
with traces of shabu, taken from [Dabon], and the specified drug paraphernalia
recovered from both [Dabon and Dumaluan], are hereby ordered turned-over to the
Philippine Drug Enforcement Agency (PDEA) for proper disposition and or
destruction. The cellphone and cash subject matter of these cases, were returned to
the accused upon the latter's motion.

If preventively detained before putting up bail, the accused concerned, is hereby

credited in full of the period of his preventive detention pursuant to Article 29 of the
Revised Penal Code.
SO ORDERED.[25]

Only Dabon filed a Motion for Reconsideration[26] before the RTC. In said motion, he
essentially questioned the admissibility of the seized items as neither he nor any
member of his family was present when the search was conducted. Such motion
was denied in an Omnibus Order[27] dated February 1, 2010.

Undeterred, Dabon filed an appeal before the CA. Dabon insisted on the
inadmissibility of the evidence obtained against him.

In a Decision dated July 27, 2012,[28] the CA affirmed the conviction of Dabon. The
CA ratiocinated that the right of Dabon to question his arrest was deemed waived
because he failed to question the same before arraignment. In any case, the CA
ruled that the procedural flaw did not cast doubt on the fact that the illegal drugs
and paraphernalia were seized at the residence of Dabon. The dispositive portion
thereof reads:

WHEREFORE, in view of the foregoing, the appeal is DENIED. The July 10, 2008
Omnibus Decision and the February 1, 2010 Omnibus Order of the [RTC], Branch 2,
of Tagbilaran City, Bohol is AFFIRMED in toto. Costs on [Dabon].

SO ORDERED.[29]

A motion for reconsideration[30] was filed by Dabon, which was denied in a

Resolution[31] dated July 8, 2013.

Issue

Is the evidence obtained against Dabon admissible?

Ruling of the Court

No less than the 1987 Constitution provides for the protection of the people's rights
against unreasonable searches and seizures, to wit:

Section 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.

Thus, the State and its agents cannot conduct searches and seizures without the
requisite warrant. Otherwise, the constitutional right is violated.
"It must, however, be clarified that a search warrant issued in accordance with the
provisions of the Revised Rules of Criminal Procedure does not give the authorities
limitless discretion in implementing the same as the same Rules provide
parameters in the proper conduct of a search."[32] One of those parameters set by
law is Section 8 of Rule 126, to wit:

Section 8. Search of house, room, or premise to be made in presence of two

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

The law is mandatory to ensure the regularity in the execution of the search
warrant.[33] This requirement is intended to guarantee that the implementing
officers will not act arbitrarily which may tantamount to desecration of the right
enshrined in our Constitution.

In this case, it is undisputed that Dabon and his wife were actually present in their
residence when the police officers conducted the search in the bedroom where the
drugs and drug paraphernalia were found. It was also undisputed that, as the CA
recognized, only Brgy. Kagawad Angalot was present to witness the same.[34]

As gleaned from the records, PO2 Datoy, one of the police officers who conducted
the search in the bedroom, testified, thus:

Q: What part of the house did you personally search?

A: At the bedroom of [Dabon].

Q: Who was with you when you were searching the bedroom of [Dabon]?

A: PO2 Enterina and [Brgy. Kagawad Angalot].

xxxx

Q: When you were already inside the room, [Dabon] according to you was still there?

A: He was in the sala.

Q: He did not go with you?

A: No, he was sitting in the sala.[35]

Brgy. Kagawad Angalot confirmed the statement of PO2 Datoy insofar as the
absence of Dabon or any member of his family when the search was conducted, to
wit:

Q: When the bedroom of the couple was subjected to a search, the couple Mr. and Mrs. Dabon were
outside the room?

A: They were in the sala.

Q: [Dabon] was at the sala and the wife was at the comfort room accompanied by [SK Chairman
Angalot]?

A: Yes, sir.[36]

We are not unguarded in ruling for the inadmissibility of evidence obtained in

violation of this requirement. In People v. Go,[37] We rendered inadmissible the
evidence obtained in violation of this rule and stressed that the Rules of Court
clearly and explicitly establishes a hierarchy among the witnesses in whose
presence the search of the premises must be conducted. Section 8, Rule 126
provides that the search should be witnessed by two witnesses of sufficient age and
discretion residing in the same locality only in the absence of either the lawful
occupant of the premises or any member of his family. In People v. Del
Castillo,[38] We ruled that although the lawful occupants were present during the
search, the fact that they were not allowed to witness the search of the premises
violates the mandatory requirement. In Bulauitan v. People,[39] We decided for the
acquittal of the accused because of failure to comply with the aforequoted rule,
which rendered the evidence against him inadmissible.

Here, the hierarchy among the witnesses as explicitly provided under the law was
not complied with. For one, the lawful occupants of the premises were not absent
when the police authorities implemented the search warrant. Even so, the two-
witness rule was not complied with as only one witness, Brgy. Kagawad Angalot,
was present when the search was conducted.

As told, based on the testimonies of PO2 Datoy and Brgy. Kagawad Angalot, it is
clear that the mandatory rule under Section 8 was violated. Clearly, the contention
of the Office of the Solicitor General (OSG) that SK Chairman Angalot was there
was belied by the statement of PO2 Datoy and Brgy. Kagawad Angalot.

Failure to comply with the safeguards provided by law in implementing the search
warrant makes the search unreasonable. Thus, the exclusionary rule applies, i.e.,
any evidence obtained in violation of this constitutional mandate is inadmissible in
any proceeding for any purpose.[40] We emphasize that the exclusionary rule
ensures that the fundamental rights to one's person, houses, papers, and effects
are not lightly infringed upon and are upheld.[41]

Lastly, We find that the inadmissibility of the evidence obtained was not defeated
by the fact that Dabon failed to timely object to such evidence's admissibility during
trial.

Although Section 14 of Rule 126 states that a motion to quash a search warrant
and/or to suppress evidence obtained thereby may be filed in and acted upon only
by the court where the action has been instituted, the purpose for which such
provision was enacted must nevertheless be considered. In the case of Ogayon v.
People,[42] We clarified that "the provision was intended to resolve what is perceived
as conflicting decisions on where to file a motion to quash a search warrant or to
suppress evidence seized by virtue thereof. It was certainly not intended to
preclude belated objections against the search warrant's validity."[43]

In the Ogayon[44] case, We brushed aside such procedural defect and gave more
prime to a fundamental constitutional right. We set aside adherence to procedural
rules and recognized that procedural rules can neither diminish nor modify
substantial rights.[45]

Like in Ogayon, We rule that Dabon's failure to file a motion to suppress the
evidence obtained against him cannot be considered as a sufficient indication that
he clearly, categorically, knowingly, and intelligently made a waiver. This is in
consonance with Our ruling in People v. Bodoso[46] where We underlined that in
criminal cases where life, liberty and property are all at stake, "[t]he standard of
waiver requires that it not only must be voluntary, but must be knowing, intelligent,
and done with sufficient awareness of the relevant circumstances and likely
consequences."[47] After all, he raised the objection in his Omnibus Motion for
Reconsideration before the trial court.

While We are at one with the government in its campaign against illegal drugs, We
cannot disregard a constitutional right and run counter to what is explicitly
prescribed by our Constitution and to its purpose, i.e., "to to protect the people
against arbitrary and discriminatory use of political power."[48]

WHEREFORE, premises considered, the Decision dated July 27, 2012 and
Resolution dated July 8, 2013 of the Court of Appeals in CA-G.R. CEB-CR No. 01414
are REVERSED and SET ASIDE.

Accordingly, accused-appellant Jorge Dabon is ACQUITTED of the crime charged

against him. His immediate release from confinement is hereby ordered unless he is
lawfully held in custody for another cause. The Director of the Bureau of Corrections
is ordered to forthwith implement this decision and to inform this Court, within ten
(10) days from receipt hereof, of the date the accused-appellant was actually
released from confinement.
The shabu and other shabu paraphernalias seized during the search are forfeited in
favor of the State.

SO ORDERED.

THIRD DIVISION
[ G.R. No. 196045, February 21, 2018 ]
PEOPLE OF THE PHILIPPINES, PETITIONER, VS. AMADOR
PASTRANA AND RUFINA ABAD, RESPONDENTS.

DECISION

MARTIRES, J.:

The sacred right against an arrest, search or seizure without valid warrant is not
only ancient. It is also zealously safeguarded. The Constitution guarantees the right
of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures. Any evidence obtained in violation of said right
shall thus be inadmissible for any purpose in any proceeding. Indeed, while the
power to search and seize may at times be necessary to the public welfare, still it
must be exercised and the law implemented without contravening 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.[1]

This is a petition for review on certiorari seeking to reverse and set aside the
Decision,[2] dated 22 September 2010, and Resolution,[3] dated 11 March 2011, of
the Court of Appeals (CA) in CA-G.R. CV No. 77703. The CA affirmed the Omnibus
Order,[4] dated 10 May 2002, of the Regional Trial Court, Makati City, Branch 58
(RTC), which nullified Search Warrant No. 01-118.

THE FACTS

On 26 March 2001, National Bureau of Investigation (NBI) Special Investigator

Albert Froilan Gaerlan (SI Gaerlan) filed a Sworn Application for a Search
Warrant[5] before the RTC, Makati City, Branch 63, for the purpose of conducting a
search of the office premises of respondents Amador Pastrana and Rufina Abad at
Room 1908, 88 Corporate Center, Valero Street, Makati City. SI Gaerlan alleged
that he received confidential information that respondents were engaged in a
scheme to defraud foreign investors. Some of their employees would call
prospective clients abroad whom they would convince to invest in a foreign-based
company by purchasing shares of stocks. Those who agreed to buy stocks were
instructed to make a transfer for the payment thereof. No shares of stock, however,
were actually purchased. Instead, the money collected was allocated as follows:
42% to respondentPastrana's personal account; 32% to the sales office; 7% to
investors-clients, who threatened respondents with lawsuits; 10% to the cost of
sales; and 8% to marketing. Special Investigator Gaerlan averred that the scheme
not only constituted estafa under Article 315 of the Revised Penal Code (RPC), but
also a violation of Republic Act (R.A.) No. 8799 or the Securities Regulation Code
(SRC).[6]

In support of the application for search warrant, SI Gaerlan attached the affidavit of
Rashed H. Alghurairi, one of the complainants from Saudi Arabia;[7] the affidavits of
respondents' former employees who actually called clients abroad;[8] the articles of
incorporation of domestic corporations used by respondents in their scheme;[9] and
the sketch of the place sought to be searched.[10]

On 26 March 2001, Judge Tranquil Salvador, Jr. (Judge Salvador, Jr.) of the RTC,
Branch 63, Makati City, issued Search Warrant No. 01-118, viz:
PEOPLE OF THE
Search Warrant No. 01-118
PHILIPPINES,
For: Violation of R.A. 8799
-versus- (The Securities Regulation Code) and Estafa (Art. 315, RPC)

AMADOR
PASTRANA AND
RUFINA ABAD of
1908 88
Corporate Center,
Valero St.,
Makati City

SEARCH WARRANT

TO ANY PEACE OFFICER:

GREETINGS:

It appearing to the satisfaction of the undersigned after examining under oath the
applicant NBI [Special Investigator] ALBERT FROILAN G. GAERLAN and his
witnesses RONNIE AROJADO and MELANIE O. BATO, that there is probable cause to
believe that AMADOR PASTRANA and RUFINA ABAD have in their possession/control
located in [an] office premises located at 1908 88 Corporate Center, Valero St.,
Makati City, as shown in the application for search warrant the following
documents, articles and items, to wit:

Telephone bills showing the companies['] calls to clients abroad; list of brokers and
their personal files; incorporation papers of all these companies[,] local and abroad;
sales agreements with clients; copies of official receipts purposely for clients; fax
messages from the clients; copies of credit advise from the banks; clients[']
message slips; company brochures; letterheads; envelopes; copies of listings of
personal assets of Amador Pastrana; list of clients and other showing that these
companies acted in violation of their actual registration with the SEC.

which should be seized and brought to the undersigned.

You are hereby commanded to make an immediate search anytime of the day of
the premises above-described and forewith seize and take possession thereof and
bring said documents, articles and items to the undersigned to be dealt with as the
law directs.

The officer(s) making the search shall make a return of their search within the
validity of the warrant.

This search warrant shall be valid for ten (10) days from this date.[11]
Thus, on 27 March 2001, NBI agents and representatives from the Securities and
Exchange Commission (SEC) proceeded to respondents' office to search the same.
The search was witnessed by Isagani Paulino and Gerardo Derma, Chief Security
Officer and Building Administrator, respectively of 88 Corporate Center. Pursuant to
the Return,[12] dated 2 April 2001, and the Inventory Sheet[13] attached thereto, the
NBI and the SEC were able to seize the following:
1. Eighty-nine (89) boxes containing the following documents:

a. Telephone bills of the company calls to clients;

b. List of brokers and 201 files;

c. Sales agreements;

d. Official receipts;

e. Credit advise;

f. Fax messages;

g. Clients message slips;

h. Company brochures;

i. Letterheads; and

j. Envelopes.

2. Forty (40) magazine stands of brokers' records;

3. Offshore incorporation papers;

4. Lease contracts; and

5. Vouchers/ledgers.
On 11 June 2001, respondent Abad moved to quash Search Warrant No. 01-118
because it was issued in connection with two (2) offenses, one for violation of the
SRC and the other for estafa under the RPC, which circumstance contravened the
basic tenet of the rules of criminal procedure that search warrants are to be issued
only upon a finding of probable cause in connection with one specific offense.
Further, Search Warrant No. 01-118 failed to describe with specificity the objects to
be seized.[14]

On 19 September 2001, pending the resolution of the motion to quash the search
warrant, respondent Abad moved for the inhibition of Judge Salvador, Jr. She
contended that the lapse of three (3) months without action on the motion to quash
clearly showed Judge Salvador, Jr.'s aversion to passing judgment on his own
search warrant.[15]

In an Order,[16] dated 15 November 2001, Judge Salvador, Jr. voluntarily inhibited

himself from the case. Hence, the case was re-raffled to the RTC, Makati City,
Branch 58.

The Regional Trial Court Ruling

In an Omnibus Order, dated 10 May 2002, the RTC ruled that the search warrant
was null and void because it violated the requirement that a search warrant must
be issued in connection with one specific offense only. It added that the SRC alone
punishes various acts such that one would be left in limbo divining what specific
provision was violated by respondents; and that even estafa under the RPC
contemplates multifarious settings. The RTC further opined that the search warrant
and the application thereto as well as the inventory submitted thereafter were all
wanting in particularization. The fallo reads:
WHEREFORE, Search Warrant No. 01-118 issued on March 26, 2001 is hereby
QUASHED and NULLIFIED. All documents, articles and items seized are hereby
ordered to be RETURNED to petitioner/accused. Any and all items seized, products
of the illegal search are INADMISSIBLE in evidence and cannot be used in any
proceeding for whatever purpose. The petition to cite respondent SEC and NBI
officers for contempt of court is DENIED for lack of merit.

SO ORDERED.[17]
Aggrieved, petitioner, through the Office of the Solicitor General elevated an appeal
before the CA.

The Court of Appeals Ruling

In its decision, dated 22 September 2010, the CA affirmed the ruling of the RTC. It
declared that Search Warrant No. 01-118 clearly violated Section 4, Rule 126 of the
Rules of Court which prohibits the issuance of a search warrant for more than one
specific offense, because the application failed to specify what provision of the SRC
was violated or even what type of estafa was committed by respondents. The
appellate court observed that the application for search warrant never alleged that
respondents or their corporations were not SEC-registered brokers or dealers,
contrary to petitioner's allegation that respondents violated Section 28.1 of the SRC
which makes unlawful the act of buying or selling of stocks in a dealer or broker
capacity without the requisite SEC registration.

The CA further pronounced that the subject search warrant failed to pass the test of
particularity. It reasoned that the inclusion of the phrase "other showing that these
companies acted in violation of their actual registration with the SEC" rendered the
warrant all-embracing as it subjected any and all records of respondents inside the
office premises to seizure and the implementing officers effectively had unlimited
discretion as to what property should be seized. The CA disposed the case in this
wise:
WHEREFORE, premises considered, the appeal is hereby DENIED. The Omnibus
Order dated May 10, 2002 of the Regional Trial Court, Branch 58, Makati City is
AFFIRMED.

SO ORDERED.[18]
Petitioner moved for reconsideration but the motion was denied by the CA in its
resolution, dated 11 March 2011. Hence, this petition.
ASSIGNMENT OF ERRORS

THE COURT OF APPEALS COMMITTED GRAVE ERROR IN SUSTAINING THE

TRIAL COURT'S ORDER WHICH QUASHED SEARCH WARRANT NO. 01-118
CONSIDERING THAT:
I.

READ TOGETHER, THE ALLEGATIONS IN NBI AGENT GAERLAN'S

APPLICATION FOR A SEARCH WARRANT AND SEARCH WARRANT NO. 01-
118 SHOW THAT SAID WARRANT WAS ISSUED IN CONNECTION WITH THE
CRIME OF VIOLATION OF SECTION 28.1 OF R.A. NO. 8799.

II.

SEARCH WARRANT NO. 01-118 PARTICULARLY DESCRIBED THE ITEMS

LISTED THEREIN WHICH SHOW A REASONABLE NEXUS TO THE OFFENSE
OF ACTING AS STOCKBROKER WITHOUT THE REQUIRED LICENSE FROM
THE SEC. THE IMPUGNED STATEMENT FOUND AT THE END OF THE
ENUMERATION OF ITEMS DID NOT INTEND TO SUBJECT ALL DOCUMENTS
OF RESPONDENTS TO SEIZURE BUT ONLY THOSE "SHOWING THAT THESE
COMPANIES ACTED IN VIOLATION OF THEIR ACTUAL REGISTRATION WITH
THE SEC."[19]
Petitioner argues that violation of Section 28.1 of the SRC and estafa are so
intertwined that the punishable acts defined in one of them can be considered as
including or are necessarily included in the other; that operating and acting as
stockbrokers without the requisite license infringe Section 28.1 of the SRC; that
these specific acts of defrauding another by falsely pretending to possess power or
qualification of being a stockbroker similarly constitute estafa under Article 315 of
the RPC; and that both Section 28.1 of the SRC and Article 315 of the RPC penalize
the act of misrepresentation, an element common to both offenses; thus, the
issuance of a single search warrant did not violate the "one specific offense rule."[20]

Petitioner further contends that the subject search warrant is not a general warrant
because the items listed therein show a reasonable nexus to the offense of acting
as stockbrokers without the required license from the SEC; that the statement "and
other showing that these companies acted in violation of their actual registration
with the SEC" did not render the warrant void; and that the words "and other" only
intend to emphasize that no technical description could be given to the items
subject of the search warrant because of the very nature of the offense.[21]

In their comment,[22] respondents counter that the lower court was correct in ruling
that the subject warrant was issued in connection with more than one specific
offense; that estafa and violation of the SRC could not be considered as one crime
because the former is punished under the RPC while the latter is punished under a
special law; that there are many violations cited in the SRC that there can be no
offense which is simply called "violation of R.A. No. 8799;" and that, similarly, there
are three classes of estafa which could be committed through at least 10 modes,
each one of them having elements distinct from those of the other modes.

Respondents assert that Search Warrant No. 01-118 does not expressly indicate
that the documents, articles, and items sought to be seized thereunder are subjects
of the offense, stolen or embezzled and other proceeds or fruits of the offense, or
used or intended to be used as the means of committing an offense; that it is a
general warrant because it enumerates every conceivable document that may be
found in an office setting; that, as a result, it is entirely possible that in the course
of the search for the articles and documents generally listed in the search warrant,
those used and intended for legitimate purposes may be included in the seizure;
that the concluding sentence in the subject warrant "and other showing that these
companies acted in violation of their actual registration with the SEC" is a
characteristic of a general warrant; and that it allows the raiding team unbridled
latitude in determining by themselves what items or documents are evidence of the
imputation that respondents and the corporations they represent are violating their
registration with the SEC.[23]

In its reply,[24] petitioner avers that the validity of a search warrant may be
properly evaluated by examining both the warrant itself and the application on
which it was based; that the acts alleged in the application clearly constitute a
transgression of Section 28.1 of the SRC; and that the nature of the offense for
which a search warrant is issued is determined based on the factual recital of the
elements of the subject crime therein and not the formal designation of the crime
itself in its caption.

THE COURT'S RULING

Article III, Section 2 of the Constitution guarantees every individual the right to
personal liberty and security of homes against unreasonable searches and
seizures, viz:
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 purpose of the constitutional provision against unlawful searches and seizures
is to prevent violations of private security in person and property, and unlawful
invasion of the sanctity of the home, by officers of the law acting under legislative
or judicial sanction, and to give remedy against such usurpations when
attempted.[25]

Additionally, Rule 126, Sections 4 and 5 of the 2000 Rules on Criminal Procedure
provide for the requisites for the issuance of a search warrant, to wit:
SEC. 4. Requisites for issuing search warrant. A search warrant shall not issue
except upon probable cause in connection with one specific offense to be
determined personally by the judge after examination under oath or affirmation of
the complainant and the witness he may produce, and particularly describing the
place to be searched and the things to be seized which may be anywhere in the
Philippines.

SEC. 5. Examination of complainant; record. The judge must, before issuing the
warrant, personally examine in the form of searching questions and answers, in
writing and under oath, the complainant and the witnesses he may produce on facts
personally known to them and attach to the record their sworn statements,
together with the affidavits submitted.
Hence, in the landmark case of Stonehill v. Diokno (Stonehill),[26] the Court stressed
two points which must be considered in the issuance of a search warrant, namely:
(1) that no warrant shall issue but upon probable cause, to be determined
personally by the judge; and (2) that the warrant shall particularly describe the
things to be seized.[27] Moreover, in Stonehill, on account of the seriousness of the
irregularities committed in connection with the search warrants involved in that
case, the Court deemed it fit to amend the former Rules of Court by providing that
"a search warrant shall not issue except upon probable cause in connection with
one specific offense."

The search warrant must be issued for one specific offense.

One of the constitutional requirements for the validity of a search warrant is that it
must be issued based on probable cause which, under the Rules, must be in
connection with one specific offense to prevent the issuance of a scatter-shot
warrant.[28] In search warrant proceedings, probable cause is defined as such facts
and circumstances that 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.[29]

In Stonehill, the Court, in declaring as null and void the search warrants which were
issued for "violation of Central Bank Laws, Tariff and Customs Laws, Internal
Revenue (Code) and Revised Penal Code," stated:
In other words, no specific offense had been alleged in said applications. The
averments thereof with respect to the offense committed were abstract. As a
consequence, it was impossible for the judges who issued the warrants to have
found the existence of probable cause, for the same presupposes the introduction
of competent proof that the party against whom it is sought has
performed particular acts, or committed specific omissions, violating a given
provision of our criminal laws. As a matter of fact, the applications involved in this
case do not allege any specific acts performed by herein petitioners. It would be the
legal heresy, of the highest order, to convict anybody of a "violation of Central Bank
Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code,"
- as alleged in the aforementioned applications - without reference to any
determinate provision of said laws; or

To uphold the validity of the warrants in question would be to wipe out completely
one of the most fundamental rights guaranteed in our Constitution, for it would
place the sanctity of the domicile and the privacy of communication and
correspondence at the mercy of the whims caprice or passion of peace officers. This
is precisely the evil sought to be remedied by the constitutional provision above
quoted-to outlaw the socalled general warrants. It is not difficult to imagine what
would happen, in times of keen political strife, when the party in power feels that
the minority is likely to wrest it, even though by legal means.[30]
In Philippine Long Distance Telephone Company v. Alvarez,[31] the Court further
ruled:
In the determination of probable cause, the court must necessarily determine
whether an offense exists to justify the issuance or quashal of the search warrant
because the personal properties that may be subject of the search warrant are very
much intertwined with the "one specific offense" requirement of probable cause.
The only way to determine whether a warrant should issue in connection with one
specific offense is to juxtapose the facts and circumstances presented by the
applicant with the elements of the offense that are alleged to support the search
warrant.

xxxx

The one-specific-offense requirement reinforces the constitutional requirement that

a search warrant should issue only on the basis of probable cause. Since the
primary objective of applying for a search warrant is to obtain evidence to be used
in a subsequent prosecution for an offense for which the search warrant was
applied, a judge issuing a particular warrant must satisfy himself that the evidence
presented by the applicant establishes the facts and circumstances relating to this
specific offense for which the warrant is sought and issued. x x x[32]
In this case, Search Warrant No. 01-118 was issued for "violation of R.A. No. 8799
(The Securities Regulation Code) and for estafa (Art. 315, RPC)."[33]

First, violation of the SRC is not an offense in itself for there are several punishable
acts under the said law such as manipulation of security prices,[34] insider
trading,[35] acting as dealer or broker without being registered with the SEC,[36] use
of unregistered exchange,[37] use of unregistered clearing agency,[38] and violation
of the restrictions on borrowings by members, brokers, and dealers[39] among
others. Even the charge of "estafa under Article 315 of the RPC" is vague for there
are three ways of committing the said crime: ( 1) with unfaithfulness or abuse of
confidence; (2) by means of false pretenses or fraudulent acts; or (3) through
fraudulent means. The three ways of committing estafa may be reduced to
two, i.e., (1) by means of abuse of confidence; or (2) by means of deceit. For these
reasons alone, it can be easily discerned that Search Warrant No. 01-118 suffers a
fatal defect.

Indeed, there are instances where the Court sustained the validity of search
warrants issued for violation of R.A. No. 6425 or the then Dangerous Drugs Act of
1972. In Olaes v. People,[40] even though the search warrant merely stated that it
was issued in connection with a violation of R.A. No. 6425, the Court did not nullify
the same for it was clear in the body that it was issued for the specific offense of
possession of illegal narcotics, viz:
While it is true that the caption of the search warrant states that it is in connection
with Violation of R.A. No. 6425, otherwise known as the Dangerous Drugs Act of
1972, it is clearly recited in the text thereof that [t]here is probable cause to
believe that Adolfo Olaes alias Debie and alias Baby of No. 628 Cornia St.,
Filtration, Sta. Rita, Olongapo City, [have] in their possession and control and
custody of marijuana dried stalks/leaves/seeds/cigarettes and other
regulated/prohibited and exempt narcotics preparations which is the subject of the
offense stated above. Although the specific section of the Dangerous Drugs Act is
not pinpointed, there is no question at all of the specific offense alleged to have
been committed as a basis for the finding of probable cause. The search warrant
also satisfies the requirement in the Bill of Rights of the particularity of the
description to be made of the place to be searched and the persons or things to be
seized.[41] (emphasis supplied)
In People v. Dichoso,[42] the search warrant was also for violation of R.A. No. 6425,
without specifying what provisions of the law were violated. The Court upheld the
validity of the warrant:
Appellants' contention thaUhe search warrant in question was issued for more than
one (1) offense, hence, in violation of Section 3, Rule 126 of the Rules of Court, is
unpersuasive. He engages in semantic juggling by suggesting that since illegal
possession of shabu, illegal possession of marijuana and illegal possession
of paraphernalia are covered by different articles and sections of the Dangerous
Drugs Act of 1972, the search warrant is clearly for more than one (1) specific
offense. In short, following this theory, there should have been three (3) separate
search warrants, one for illegal possession of shabu, the second for illegal
possession of marijuana and the third for illegal possession of paraphernalia. This
argument is pedantic. The Dangerous Drugs Act of 1972 is a special law that deals
specifically with dangerous drugs which are subsumed into prohibited and regulated
drugs and defines and penalizes categories of offenses which are closely
related or which belong to the same class or species. Accordingly, one (1)
search warrant may thus be validly issued for the said violations of the Dangerous
Drugs Act.[43] (emphases supplied)
Meanwhile, in Prudente v. Dayrit,[44] the search warrant was captioned: For
Violation of P.D. No. 1866 (Illegal Possession of Firearms, etc.), the Court held that
while "illegal possession of firearms is penalized under Section 1 of P.D. No. 1866
and illegal possession of explosives is penalized under Section 3 thereof, it cannot
be overlooked that said decree is a codification of the various laws on illegal
possession of firearms, ammunitions and explosives; such illegal possession of
items destructive of life and property are related offenses or belong to the same
species, as to be subsumed within the category of illegal possession of firearms,
etc. under P.D. No. 1866."[45]

The aforecited cases, however, are not applicable in this case. Aside from its failure
to specify what particular provision of the SRC did respondents allegedly violate,
Search Warrant No. 01-118 also covered estafa under the RPC. Even the application
for the search warrant merely stated:
Amador Pastrana and Rufina Abad through their employees scattered throughout
their numerous companies call prospective clients abroad and convince them to buy
shares of stocks in a certain company likewise based abroad. Once the client is
convinced to buy said shares of stocks, he or she is advised to make a telegraphic
transfer of the money supposedly intended for the purchase of the stocks. The
transfer is made to the account of the company which contacted the client. Once
the money is received, the same is immediately withdrawn and brought to the
treasury department of the particular company. The money is then counted and
eventually allocated to the following: 42% to Pastrana, 32% for the Sales Office,
7% for the redeeming clients (those with small accounts and who already
threatened the company with lawsuits), 10% for the cost of sales and 8% goes to
marketing. No allocation is ever made to buy the shares of stocks.[46]
Moreover, the SRC is not merely a special penal law. It is first and foremost a
codification of various rules and regulations governing securities. Thus, unlike, the
drugs law wherein there is a clear delineation between use and possession of illegal
drugs, the offenses punishable under the SRC could not be lumped together in
categories. Hence, it is imperative to specify what particular provision of the SRC
was violated.

Second, to somehow remedy the defect in Search Warrant No. 01-118, petitioner
insists that the warrant was issued for violation of Section 28.1 of the SRC, which
reads, "No person shall engage in the business of buying or selling securities in the
Philippines as a broker or dealer, or act as a salesman, or an associated person of
any broker or dealer unless registered as such with the Commission." However,
despite this belated attempt to pinpoint a provision of the SRC which respondents
allegedly violated, Search Warrant No. 01-118 still remains null and void. The
allegations in the application for search warrant do not indicate that respondents
acted as brokers or dealers without prior registration from the SEC which is an
essential element to be held liable for violation of Section 28.1 of the SRC. It is
even worthy to note that Section 28.1 was specified only in the SEC's Comment on
the Motion to Quash,[47] dated 5 April 2002.

In addition, even assuming that violation of Section 28.1 of the SRC was specified
in the application for search warrant, there could have been no finding of probable
cause in connection with that offense. In People v. Hon. Estrada,[48] the Court
pronounced:
The facts and circumstances that would show probable cause must be the best
evidence that could be obtained under the circumstances. The introduction of such
evidence is necessary especially in cases where the issue is the existence of the
negative ingredient of the offense charged - for instance, the absence of a
license required by law, as in the present case - and such evidence is
within the knowledge and control of the applicant who could easily
produce the same. But if the best evidence could not be secured at the time of
application, the applicant must show a justifiable reason therefor during the
examination by the judge. The necessity of requiring stringent procedural
safeguards before a search warrant can be issued is to give meaning to the
constitutional right of a person to the privacy of his home and
personalities.[49] (emphasis supplied)
Here, the applicant for the search warrant did not present proof that respondents
lacked the license to operate as brokers or dealers. Such circumstance only
reinforces the view that at the time of the application, the NBI and the SEC were in
a quandary as to what offense to charge respondents with.

Third, contrary to petitioner's claim that violation of Section 28.1 of the SRC
and estafa are so intertwined with each other that the issuance of a single search
warrant does not violate the one-specific-offense rule, the two offenses are entirely
different from each other and neither one necessarily includes or is necessarily
included in the other. An offense may be said to necessarily include another when
some of the essential elements or ingredients of the former constitute the latter.
And vice versa, an offense may be said to be necessarily included in another when
the essential ingredients of the former constitute or form part of those constituting
the latter.[50]

The elements of estafa in general are the following: (a) that an accused defrauded
another by abuse of confidence, or by means of deceit; and (b) that damage and
prejudice capable of pecuniary estimation is caused the offended party or third
person.[51] On the other hand, Section 28.1 of the SRC penalizes the act of
performing dealer or broker functions without registration with the SEC. For such
offense, defrauding another and causing damage and prejudice capable of
pecuniary estimation are not essential elements. Thus, a person who is found liable
of violation of Section 28.1 of the SRC may, in addition, be convicted
of estafa under the RPC. In the same manner, a person acquitted of violation of
Section 28.1 of the SRC may be held liable for estafa. Double jeopardy will not set
in because violation of Section 28.1 of the SRC is malum prohibitum, in which there
is no necessity to prove criminal intent, whereas estafa is malum in se, in the
prosecution of which, proof of criminal intent is necessary.

Finally, the Court's rulings in Columbia Pictures, Inc. v. CA (Columbia)[52] and Laud
v. People (Laud)[53] even militate against petitioner. In Columbia, the Court ruled
that a search warrant which covers several counts of a certain specific offense does
not violate the one-specific-offense rule, viz:
That there were several counts of the offense of copyright infringement and the
search warrant uncovered several contraband items in the form of pirated
videotapes is not to be confused with the number of offenses charged. The search
warrant herein issued does not violate the one-specific-offense rule.[54]
In Laud, Search Warrant No. 09-14407 was adjudged valid as it was issued only for
one specific offense - that is, for Murder, albeit for six (6) counts.

In this case, the core of the problem is that the subject warrant did not state one
specific offense. It included violation of the SRC which, as previously discussed,
covers several penal provisions and estafa, which could be committed in a number
of ways.

Hence, Search Warrant No. 01-118 is null and void for having been issued for more
than one specific offense.

Reasonable particularity of the description of the things to be seized

It is elemental that in order to be valid, a search warrant must particularly describe

the place to be searched and the things to be seized. The constitutional
requirement of reasonable particularity of description of the things to be seized is
primarily meant to enable the law enforcers serving the warrant to: (1) readily
identify the properties to be seized and thus prevent them from seizing the wrong
items; and (2) leave said peace officers with no discretion regarding the articles to
be seized and thus prevent unreasonable searches and seizures. It is not, however,
required that the things to be seized must be described in precise and minute detail
as to leave no room for doubt on the part of the searching authorities.[55]

In Bache and Co. (Phil.), Inc. v. Judge Ruiz,[56] it was pointed out that one of the
tests to determine the particularity in the description of objects to be seized under
a search warrant is when the things described are limited to those which
bear direct relation to the offense for which the warrant is being issued.[57]

In addition, under the Rules of Court, the following personal property may be the
subject of a search warrant: (i) the subject of the offense; (ii) fruits of the offense;
or (iii) those used or intended to be used as the means of committing an offense.[58]

Here, as previously discussed, Search Warrant No. 01-118 failed to state the
specific offense alleged committed by respondents. Consequently, it could not have
been possible for the issuing judge as well as the applicant for the search warrant
to determine that the items sought to be seized are connected to any crime.
Moreover, even if Search Warrant No. 01-118 was issued for violation of Section
28.1 of the SRC as petitioner insists, the documents, articles and items enumerated
in the search warrant failed the test of particularity. The terms used in this warrant
were too all-embracing, thus, subjecting all documents pertaining to the
transactions of respondents, whether legal or illegal, to search and seizure. Even
the phrase "and other showing that these companies acted in violation of their
actual registration with the SEC" does not support petitioner's contention that
Search Warrant No. 01-118 was indeed issued for violation of Section 28.1 of the
SRC; the same could well-nigh pertain to the corporations' certificate of registration
with the SEC and not just to respondents' lack of registration to act as brokers or
dealers.

In fine, Search Warrant No. 01-118 is null and void for having been issued for more
than one offense and for lack of particularity in the description of the things sought
for seizure.

WHEREFORE, the petition is DENIED. The 22 September 2010 Decision and 11

March 2011 Resolution of the Court of Appeals in CA-G.R. CV No. 77703
are AFFIRMED.

SO ORDERED.

THIRD DIVISION
[ G.R. No. 235348, December 10, 2018 ]
PEOPLE OF THE PHILIPPINES, PETITIONER, VS. STANLEY
MADERAZO Y ROMERO, RESPONDENT.

DECISION

PERALTA, J.:

Before this Court is a petition for review on certiorari[1] under Rule 45 of the Rules
of Court, assailing the Decision[2] dated April 26, 2017 and the Resolution[3] dated
October 11, 2017 of the Court of Appeals (CA) in CA G.R. SP No. 143187, which
granted Stanley Maderazo's (Maderazo) petition for certiorari, and nullified and set
aside Search Warrant Nos. 09-2015 and 10-2015.

The facts are as follows:

On March 31, 2015, before the Regional Trial Court of Calapan City, Branch 40
(RTC), Police Superintendent Jaycees De Sagun Tolentino (Tolentino) filed two (2)
separate applications for search warrants against Maderazo, Nestor Alea (Alea),
Daren Mabansag (Mabansag) and Lovely Joy Alcantara (Alcantara). In his search
warrant applications, Tolentino alleged that he has been informed
by barangay officials, Loida Tapere Roco (Roco) and Rexcel Lozano Rivera (Rivera),
that Maderazo, along with Alea, Mabansag and Alcantara, is keeping an
undetermined quantity of dangerous drugs, drug paraphernalia, and firearms of
unknown caliber and ammunitions inside his residence in Barangay Lazareto,
Calapan City, Oriental Mindoro.

According to Roco and Rivera, at 6 o'clock in the morning of March 31, 2015, they
learned that members of the Calapan City Police Station will be serving a warrant of
arrest against Maderazo for attempted murder. When they reached the house which
Maderazo is renting, the latter was already arrested. As barangay officials, Roco
and Rivera decided to talk to Maderazo, who admitted to them that he is keeping
inside the subject house approximately 40 grams of illegal drugs, drug
paraphernalia, and a firearm. Tolentino allegedly verified said informations through
casing and surveillance.

On March 31, 2015, after the preliminary investigation of witnesses Roco and
Rivera, under oath, Executive Judge Tomas C. Leynes (Judge Leynes) issued Search
Warrant No. 09-2015 for violation of Republic Act (R.A.) No. 9165 and Search
Warrant No. 10-2015 for violation of R.A. No. 10591. On even date, both search
warrants were served in the subject house in Barangay Lazareto, Calapan City,
Oriental Mindoro. By virtue of the search warrants, police officers recovered heat-
sealed transparent plastic sachets which were suspected to be containing shabu,
various drug paraphernalia, a .38 caliber revolver, live ammunitions, mobile
phones, computer laptop, cash, among others, from the premises.

Maderazo, Alea, and Mabansag were, subsequently, charged with illegal possession
of dangerous drugs and drug paraphernalia, and illegal possession of firearm
respectively docketed as Criminal Case Nos. CR-15-12, 201, CR-15-12, 202, and
CR-15-12, 203.

On July 1, 2015, Maderazo filed the Motion to Quash, arguing that Search Warrant
Nos. 09-2015 and 10-2015 were issued without probable cause; thus, all items
seized by virtue of their enforcement were inadmissible in evidence. He claimed
that Tolentino did not have personal knowledge of Maderazo's supposed possession
of illegal drugs and an unlicensed firearm, because the police officer merely relied
on Roco and Rivera's statements. Maderazo insisted that Tolentino lied when he
stated that the Calapan City Police conducted prior surveillance and casing because
the same could not have possibly happened, considering that he was already under
police custody in the morning of March 31, 2015, and the house subject of the
search was cordoned off.

Maderazo further asserted that nothing in the records show how and when
Tolentino conducted the casing and surveillance. The statements of Roco and Rivera
cannot also be given probative value, since the information that Maderazo has in
his custody illegal drugs, drug paraphernalia, and an unlicensed firearm were not
derived from their own perception but allegedly from Maderazo's own admission.

Thereafter, Maderazo requested for certified true copy of the transcript of

stenographic notes (TSN) of the proceedings conducted on March 31, 2015
regarding the application for Search Warrant Nos. 09-2015 and 10-2015.
Subsequently, Maderazo manifested that instead of the TSN, he was only given
copies of Roco, Rivera, and Cueto's respective sworn statements which bear exactly
the same questions and answers, except for their personal circumstances.

On August 14, 2015, the trial court rendered its Order denying the motion to
quash. The dispositive portion of its Order reads:

ACCORDINGLY, the Omnibus Motion to Quash Search Warrant(s) and to Suppress

Evidence filed by all the accused, through counsel, is hereby DENIED for lack of
merit.

Maderazo moved for reconsideration, but the same was denied in its September 21,
2015 Order.[4]

Thus, before the appellate court, Maderazo filed a petition for certiorari alleging
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
the trial court when it denied the motion to quash search warrants.[5]

On April 26, 2017, the CA granted the petition for certiorari, and nullified and set
aside Search Warrant Nos. 09-2015 and 10-2015.[6] It, likewise, held that the items
allegedly seized in the house being rented by Maderazo by virtue of the said search
warrants are inadmissible in evidence against him since the access therein by the
police officers used void search warrants.

Aggrieved, petitioner raised the lone issue of whether or not the Honorable Court of
Appeals erred in ruling that Judge Leynes committed grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the assailed Orders dated
August 14, 2015 and September 21, 2015 in Criminal Case Nos. CR-15-12-201 to
203, denying respondent's motion to quash the subject search warrants.

Maderazo asserted that there was no probable cause for the issuance of Search
Warrant Nos. 09-2015 and 10-2015. He added that Judge Leynes did not personally
examine P/Supt. Tolentino and his witnesses through searching questions and
answers. He alleged that there was no TSN of the supposed personal examination
of the judge attached to the records of the case. He asserted that the sworn
statements of Roco, Rivera, and Cueto were not based on their personal knowledge
but on the alleged admission of Maderazo.

The Office of the Solicitor General (OSG), meanwhile, countered that while there
may be no actual TSNs of the proceedings, the sworn statements of witnesses
Roco, Rivera and Cueto are actual written records of the preliminary examination
conducted by Judge Leynes. It insisted that the admission of Maderazo constituted
probable cause which was determined by Judge Leynes after personally examining
the witnesses.

The petition has no merit.

The rules pertaining to the issuance of search warrants are enshrined in Section 2,
Article III of the 1987 Constitution:

Section 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.[7]

The purpose of the constitutional provision against unlawful searches and seizures
is to prevent violations of private security in person and property, and unlawful
invasion of the sanctity of the home, by officers of the law acting under legislative
or judicial sanction, and to give remedy against such usurpations when
attempted.[8]

Corollarily, Sections 4 and 5 of Rule 126 of the 2000 Rules on Criminal Procedure
provide for the requisites for the issuance of a search warrant, to wit:

SEC. 4. Requisites for issuing search warrant. A search warrant shall not issue
except upon probable cause in connection with one specific offense to be
determined personally by the judge after examination under oath or affirmation of
the complainant and the witness he may produce, and particularly describing the
place to be searched and the things to be seized which may be anywhere in the
Philippines.

SEC. 5. Examination of complainant; record. The judge must, before issuing the
warrant, personally examine in the form of searching questions and answers, in
writing and under oath, the complainant and the witnesses he may produce on facts
personally known to them and attach to the record their sworn statements,
together with the affidavits submitted.

To paraphrase this rule, a search warrant may be issued only if there is probable
cause in connection with a specific offense alleged in an application based on the
personal knowledge of the applicant and his witnesses.This the substantive
requirement for the issuance of a search warrant. Procedurally, the determination
of probable cause is a personal task of the judge before whom the application for
search warrant is filed, as he has to examine the applicant and his or her witnesses
in the form of "searching questions and answers" in writing and under oath.[9]

Thus, in Oebanda, et al. v. People,[10] the Court held that, in determining the
existence of probable cause in an application for search warrant, the mandate of
the judge is for him to conduct a full and searching examination of the complainant
and the witnesses he may produce. 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. 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 stated in the affidavits/deposition of the
applicant and the witnesses.

Following the foregoing principles, the Court agrees with the CA in ruling that the
trial judge failed to conduct the probing and exhaustive inquiry as mandated by the
Constitution. A perusal of the preliminary examination taken on all the witnesses on
March 31, 2015 appeared to be coached in identical form of questions and answers.
We quote the pertinent portions, to wit:

Prelimina1y Examination taken of witness Loida Tapere Roco:

Q: Maaari mo bang sabihin ang iyong tunay na pangalan at iba pang bagay na pagkakakilanlan sa iyo?

A. Ako po ay si Loida Tapere Roco, 50 taong gulang, may asawa, barangay konsehal ng barangay
Lazareto at naninirahan sa barangay Lazareto, Calapan, Oriental Mindoro.

Q: Bakit ka naririto ngayon sa aming tanggapan?

A. Nais ko pong ipagbigay-alam sa inyo na noong ika-6:00 ng umaga ng 31 March 2015, ako ay
nakatanggap ng impormasyon na ang miyembro ng Calapan City Police Station na
pinangungunahan ni PSupt. Jaycees DS Tolentino na mayroon silang huhulihin sa aming barangay
na may warrant of arrest.
Q: Ano ang iyong nalaman?

A. Napag-alaman ko na ang taong huhulihin sa aming barangay ay naroon sa bahay ni Major Roger
Garcia kung saan ito nangungupahan at kung saan ang caretaker ng naturang bahay ay itong si Sally
Cueto.

xxxx

Q: Ano pa ang iyong napag-alaman?

A. Napag-alaman ko din na ang taong huhulihin ng mga pulis na nangungupahan sa bahay na iyon ay
si Stanley Maderazo na may kasong Attempted Murder.

Q: Ano ang sumunod na nangyari?

A. Na pagdating ko sa bahay na inuupahan ni Stanley Maderazo ay nakita ko na siya ay hinuli na ng

mga pulis ng Calapan at narinig ko din na siya ay binabasahan ng kanyang mga karapatan tungkol
sa kanyang pagkaaresto ni Police Inspector Jude Nicolasora.

Q: Ano pa ang sumunod na nangyari?

A. Bilang kagawad ng aming barangay, ako ay lumapit kay Stanley Maderazo at sa aking pakikipag-
usap sa kanya ay umamin siya sa akin na siya ay mayroong baril sa loob ng kanyang inuupahang
bahay.

Q: Sa anong kadahilanan mo naman naisipang isalaysay ang mga bagay na ito?

A. Ito po ay sa kadahilanang si Stanley Maderazo ay umamin sa akin na siya ay mayroong baril doon sa
bahay na kanyang inuupahan.

Q: Mayroon ka pa bang nais idagdag?

A. Wala na po at kung mayroon man ay sa hukuman ko na lamang sasabihin ang mga iyon.

Q: Ikaw ba ay tinakot, pinilit o pinangakuan ng anumang bagay upang magbigay ng salaysay na ito?

A. Hindi po.[11]

In comparison, the preliminary investigation conducted on witness Rexcel Lozano

Rivera on the same date contained similar line of questioning and the answers were
framed in the same manner, to wit:
Preliminary Examination taken of witness Rexcel Lozano Rivera:

Q: Maaari mo bang sabihin ang iyong tunay na pangalan at iba pang bagay na pagkakakilanlan sa iyo?

A. Ako po ay si Rexcel Lozano Rivera, 43 taong gulang, may asawa, barangay konsehal ng barangay
Lazareto at naninirahan sa barangay Lazareto, Calapan, Oriental Mindoro.
Q: Bakit ka naririto ngayon sa aming tanggapan?

A. Nais ko pong ipagbigay-alam sa inyo na noong ika-6:00 ng umaga ng 31 March 2015, ako ay
nakatanggap ng impormasyon na ang mga miyembro ng Calapan City Police Station na
pinangungunahan ni PSupt. Jaycees DS Tolentino na mayroon silang huhulihin sa aming barangay
na may warrant of arrest.

Q: Ano ang iyong nalaman?

A. A. Napag-alaman ko na ang taong huhulihin sa aming barangay ay naroon sa bahay ni Major Roger
Garcia kung saan ito nangungupahan at kung saan ang caretaker ng naturang bahay ay itong si Sally
Cueto.

xxxx

Q: Ano pa ang iyong napag-alaman?

A. Napag-alaman ko din na ang taong huhulihin ng mga pulis na nangungupahan sa bahay na iyon ay
si Stanley Maderazo na may kasong Attempted Murder.

Q: Ano ang sumunod na nangyari?

A. Na pagdating ko sa bahay na inuupahan ni Stanley Maderazo ay nakita ko na siya ay hinuli nang

mga pulis ng Calapan at narinig ko din na siya ay binabasahan ng kanyang mga karapatan tungkol
sa kanyang pagkaaresto ni Police Inspector Jude Nicolasora.

Q: Ano pa ang sumunod na nangyari?

A. Bilang kagawad ng aming barangay, ako ay lumapit kay Stanley Maderazo at sa aking pakikipag-
usap sa kanya ay umamin siya sa akin na siya ay mayroong humigit kumulang na 40 gramo ng mga
iligal na droga at mga paraphernalia na ginagamit sa iligal na droga sa loob ng kanyang inuupahang
bahay.

Q: Sa anong kadahilanan mo naman naisipang isalaysay ang mga bagay na ito?

A. Ito po ay sa kadahilanang si Stanley Maderazo ay umamin sa aking na siya ay mayroong iligal na

droga at mga paraphernalia na ginagamit sa iligal na droga doon sa bahay na kanyanginuupahan.

Q: Mayroon ka pa bang nais idagdag?

A. Wala na po at kung mayroon man ay sa hukuman ko na lamang sasabihin ang mga iyon.

Q: Ikaw ba ay tinakot, pinilit o pinangakuan ng anumang bagay upang magbigay ng salaysay na ito?

A. Hindi po.[12]

Clearly, the interrogation conducted by the trial judge appeared to be merely

routinary, considering that same questions were thrown on both witnesses Roco
and Lozano. In fact, there were only three questions relating to the facts and
circumstances involving illegal drugs and alleged illegal possession of firearms; to
wit:
xxxx

Q. Ano ang sumuuod na nangyari?

A. Na pagdating ko sa bahay na inuupahan ni Stanky Maderazo ay nakita ko na siya ay hinuli na ng

mga pulis ng Calapan at narinig ko din na siya ay binabasahan ng kanyang mga karapatan tungkol
sa kanyang pagkaaresto ni Police Inspector Jude Nicolasora.

Q. Ano pa aug sumunod na nangyari?

A. Bilang kagawad ng aming barangay, ako ay lumapit kay Stanley Maderazo at sa aking pakikipag-
usap sa kanya ay umamin siya sa akin na siya ay mayroong humigit kumulang na 40 gramo ng mga
iligal na droga at mga paraphernalia na ginagamit sa iligal na droga sa loob ng kanyang inuupahang
bahay.

Q. Sa anong kadahilanan mo naman naisipang isalaysay ang mga bagay na ito?

A. Ito po ay sa kadahilanang si Stanley Maderazo ay umamin sa aking na siya ay mayroong iligal na

droga at mga paraphernalia na ginagamit sa iligal na droga doon sa bahay na kanyang inuupahan.

x x x[13]

None of the above-quoted questions appeared to probe on the applicant's and his
witnesses' personal knowledge of the offense respondent allegedly committed. The
trial judge failed to propound questions as to how the applicants came to know of
the existence of the items, where they found it, or what they have seen and
observed inside the premises. There was no probing, exhaustive, and extensive
questions.

In fact, it can easily be gleaned from the investigation that the applicant's and his
witnesses' knowledge of the offense that allegedly has been committed and that the
objects sought in connection with the offense are in the place sought to be
searched was not based on their personal knowledge but merely based on
Maderazo's alleged admission. The judge even failed to inquire as to how Roco and
Lozano were able to elicit said admission from Maderazo. Suffice it to say that the
questions propounded on the witnesses were not searching and probing. The trial
judge failed to make an independent assessment of the evidence adduced and the
testimonies of the witnesses in order to support a finding of probable cause which
warranted the issuance of a search warrant, for violation of R.A. No. 9165 and
illegal possession of firearms.

Consequently, because the trial judge failed to conduct exhaustive probing and
searching questions, the findings of the existence of probable cause become
dubious. To recapitulate:, Tolentino, in his application for search warrant, stated
therein that "he was informed and verily believes that accused were keeping
dangerous drugs and paraphernalia in his residence, and that he has verified the
report based on the statements executed by Rivera and Roco." While he claimed
that they also conducted verification through casing and surveillance, there was no
statement as to when and how the surveillance was made. Clearly, Tolentino solely
relied on the statements of Rivera and Roco who also did not personally see the
subjects of the search warrants as they were not even inside the premises. Rivera
and Roco merely relied on Maderazo's alleged admission. The facts and
circumstances which supposedly were the basis for the finding of probable cause
were not based on Tolentino's and his witnesses' personal knowledge.
Consequently, Tolentino's application and his witnesses' testimonies, are
inadequate proof to establish that there exists probable cause to issue the assailed
search warrants.

It must be emphasized anew that the core requisite before a warrant shall validly
issue is the existence of a probable cause, meaning "the existence of 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 to be searched." And when the law speaks of facts, the
reference is to facts, data or information personally known to the applicant and the
witnesses he may present. Absent the element of personal knowledge by the
applicant or his witnesses of the facts upon which the issuance of a search warrant
may be justified, the warrant is deemed not based on probable cause and is a
nullity, its issuance being, in legal contemplation, arbitrary.[14]

While hearsay information or tips from confidential informants could very well serve
as basis for the issuance of a search warrant, the same is only true if such
information or tip was followed-up personally by the recipient and
validated.[15] However, here, no such follow-up transpired. Tolentino's claim of
casing and surveillance was, in fact, unsubstantiated. Futhermore, testimony based
on what is supposedly told to a witness, as in this case, being patent hearsay and,
as a rule, of no evidentiary weight or probative value, whether objected to or not,
would, alone, not suffice under the law on the existence of probable cause.[16]

Moreover, as correctly pointed out by the CA, insofar as Search Warrant No. 10-
2015 was issued in connection with the offense of illegal possession of firearms, the
elements of the offense should be present, to wit: (1) the existence of the subject
firearm; and (2) the fact that the accused who owned or possessed it does not have
the license or permit to possess the same. Thus, the probable cause as applied to
illegal possession of firearms would, therefore, be such facts and circumstances
which would lead a reasonably discreet and prudent man to believe that a person is
in possession of a firearm and that he does not have the license or permit to
possess the same.

In the instant case, neither the testimonies of the witnesses nor Tolentino's
application for the issuance of the search warrants mentioned that Maderazo had no
license to possess a firearm. No certification from the appropriate government
agency was presented to show that Maderazo was not licensed to possess a
firearm. Regardless of the nature of the surveillance and verification of the
information carried out by the police officers, the fact remains that both the
applicant Tolentino and his witnesses did not have personal knowledge of
Maderazo's lack of license to possess firearms and ammunitions. They, likewise,
failed to adduce the evidence required to prove the existence of probable cause
that Maderazo had no license to possess a firearm.

In Paper Industries Corporation of the Philippines (PICOP) v. Asuncion,[17] we

declared as void the search warrant issued by the trial court in connection with the
offense of illegal possession of firearms, ammunitions and explosives, on the
ground, inter alia, of failure to prove the requisite probable cause. The applicant
and the witness presented for the issuance of the warrant were found to be without
personal knowlledge of the lack of license to possess firearms of the management
of PICOP and its security agency. They, likewise, did not testify as to the absence of
license and failed to attach to the application a no-license certification from the
Firearms and Explosives Office of the Philippine National Police.[18] Possession of
any firearm becomes unlawful only if the required permit or license therefore is not
first obtained.[19] Hence, the search and seizure warrant issued on the basis of the
evidence presented is void.

As a general rule, the finding of probable cause for the issuance of a search warrant
by a trial judge is accorded respect by the reviewing courts. However, when in
issuing the search warrant, the issuing judge failed to comply with the
requirements set by the Constitution and the Rules of Court, the resulting search
warrants must be struck down as it was issued with grave abuse of discretion which
is tantamount to in excess or lack of jurisdiction.

Settled is the rule that where entry into the premises to be searched was gained by
virtue of a void search warrant, prohibited articles seized in the course of the
search are inadmissible against the accused. In ruling against the admissibility of
the items seized, the Court held that prohibited articles may be seized but only as
long as the search is valid. In this case, it was not because: (1) there was no valid
search warrants; and (2) absent such a warrant, the right thereto was not validly
waived by Maderazo. In short, the police officers who entered petitioner's premises
had no right to search the premises and, therefore, had no right either to seize the
prohibited drugs and articles and firearms.[20] It is as if they entered Maderazo's
house without a warrant, making their entry therein illegal, and the items seized,
inadmissible.[21]

Finally, it must be stressed anew that no presumption of regularity may be invoked

in aid of the process when the officer undertakes to justify an encroachment of
rights secured by the Constitution.[22] Considering that the search and seizure
warrant in this case was procured in violation of the Constitution and the Rules of
Court, all the items seized in Maderazo's house, being fruits of the poisonous tree,
are inadmissible for any purpose in any proceeding.

WHEREFORE, the petition is DENIED. The Decision dated April 26, 2017 and the
Resolution dated October 11, 2017 of the Court of Appeals in CA-G.R. SP No.
143187 are hereby AFFIRMED.

SO ORDERED.

SECOND DIVISION
[ G.R. No. 237116, November 12, 2018 ]
DAMACEN GABRIEL CUNANAN A.K.A. "RYAN," PETITIONER,
VS. PEOPLE OF PHILIPPINES, RESPONDENT.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari[1] are the Decision[2] dated June 28,
2017 and the Resolution[3] dated January 22, 2018 rendered by the Court of
Appeals (CA) in CA-G.R. CR-HC No. 07257, which affirmed the Decision[4] dated
December 8, 2014 of the Regional Trial Court of Laoag City, Branch 13 (RTC) in
Crim. Case Nos. 15243 and 15244 finding petitioner Damacen Gabriel Cunanan
a.k.a. "Ryan" (petitioner) guilty beyond reasonable doubt of violation of Sections 11
and 12, Article II of Republic Act No. (RA) 9165,[5] otherwise known as the
"Comprehensive Dangerous Drugs Act of 2002."

The Facts
The prosecution alleged that on May 22, 2012, at around 6:30 in the morning,
several members of the Laoag City Police Station led by Senior Police Officer (SPO)
4 Rovimanuel Balolong (SPO4 Balolong) conducted a search on the residence of
petitioner at Barangay 14, Fonacier St., Laoag City. The search was by virtue of
Search Warrant No. 05-2012[6] (search warrant) issued by the RTC for an alleged
violation of RA 9165, which directed the police officers to make a search of
petitioner's bedroom and vehicle, a Mitsubishi Pajero with plate number RDM 429,
and to seize and confiscate an "undetermined volume of shabu."[7]

Upon arrival at petitioner's residence, SPO4 Balolong introduced himself and his
companions to an unidentified female, who was standing by the gate inside the
premises, and announced their purpose. When they entered the house, SPO4
Balolong and SPO1 Ferdinand Santos (SPO1 Santos) knocked on petitioner's
bedroom at the ground floor. When petitioner himself opened the door, SPO1
Santos read and explained to him the contents of the search warrant. Petitioner
asked that he be allowed to put on his pants, after which, he and his common-law
wife, Justin Cyril Cunanan (Justin), went out of the bedroom and proceeded to the
living room while the door to the bedroom was secured. Together with SPO4
Balolong, they waited for Barangay Chairman Felix Ayson (Chairman Ayson) and
several members of the media[8] to arrive, who were invited to witness the search.
Upon arrival and prior to conducting the search, Chairman Ayson frisked the
searching team members, Police Officer (PO) 1 Engelbert Ventura (PO1 Ventura)
and PO3 Arnel Saclayan (PO3 Saclayan) and declared them "clean" of any
contraband.[9]

During the height of activity in the living room, Gwendolyn Cunanan (Gwendolyn),
petitioner's mother, surreptitiously slipped into petitioner's bedroom and came out
holding something wrapped in a piece of white cloth, which she claimed SPO4
Balolong threw under the bed of her son. SPO4 Balolong took the bundle from
Gwendolyn and extracted therefrom ten (10) pieces of small plastic sachets
containing white crystalline substance. The items were photographed and
thereafter, SPO4 Balolong marked the same with his initials and handed them over
to SPO1 Santos.[10]

Meanwhile, PO1 Ventura and PO3 Saclayan continued to search petitioner's

bedroom, accompanied by Justin and Gwendolyn. Inside the dresser, PO1 Ventura
found a black box labeled "safety can be fun"[11] containing six (6) small pieces
of cut aluminum foil and two (2) disposable lighters. The search of the room
having yielded nothing else, PO1 Ventura turned over the aforesaid items to the
evidence custodian, SPO4 Loreto Ancheta (SPO4 Ancheta), for inventory.[12]
Thereafter, PO1 Ventura and PO3 Saclayan searched petitioner's Mitsubishi Pajero,
which was parked at the garage. Under the floor matting on the passenger side of
the vehicle directly below the glove compartment, PO3 Saclayan found a white
carton box containing two (2) pieces of cut aluminum foil, four (4) empty
plastic sachets, and one (1) big heat-sealed plastic sachet containing white
crystalline substance suspected to be shabu.[13] PO3 Saclayan marked the seized
items with his initials, "AMS," and likewise turned them over to SPO4 Ancheta for
inventory.[14]

All of the seized items were placed on a small table inside the premises where they
were collated and inventoried by SPO1 Santos and SPO4 Ancheta.[15] The latter
placed his markings on each item,[16] i.e., "LCPS" which stands for "Laoag City
Police Station," the initials of petitioner, and his own signature.[17] He had
possession of all the confiscated items from petitioner's residence and brought
them first to the RTC, which were received by Atty. Bernadette Espejo (Atty.
Espejo), the Branch Clerk of Court.[18] Thereafter, he went back to the police station
to prepare the Return of Search Warrant and the Motion to Withdraw Confiscated
Items (Motion to Withdraw). The Motion to Withdraw was granted on the same day
upon order of the RTC.

After receiving the seized items, SPO4 Ancheta prepared the request for laboratory
examination, and then brought the items, as well as the request to the Ilocos Norte
Crime Laboratory for examination, where they were received by Police Inspector
Amiely Ann Luis Navarro (P/Insp. Navarro), the forensic chemist.[19] After a
qualitative examination, the ten (10) small heat-sealed transparent sachets
containing an aggregate amount of 0.6006 gram of white crystalline substance and
the one (1) big heat-sealed transparent plastic sachet containing 14.7717 grams of
the same substance tested positive for methamphetamine hydrochloride, a
dangerous drug. The rest of the seized items, meanwhile, tested
negative.[20] Thereafter, the confiscated items were turned over to PO1 Erlanger
Aguinaldo (PO1 Aguinaldo), the Property Custodian of the Ilocos Norte Crime
Laboratory.

Consequently, separate Informations[21] for violation of Sections 11 and 12, Article

II of RA 9165 for Illegal Possession of Dangerous Drugs and Illegal Possession of
Drug Paraphernalia, respectively, were filed against petitioner on July 25, 2012.
However, the Information for Crim. Case No. 15244 was amended to
correct discrepancies in the weight and contents of the confiscated items. Thus, the
amended Information[22] reads:
That on or about the [sic] 6:30 in the morning of May 22, 2012 in the City of Laoag
and within the jurisdiction of this Honorable Court, the said accused, did then and
there willfully, unlawfully and feloniously had in his possession, custody and control,
one (1) big heat sealed plastic sachet containing white crystalline substance
otherwise known as shabu, with an aggregate weight of more or
less 14.7717 grams and ten (10) small heat sealed plastic sachet with an arrogate
[sic] weight of more or less .6006 grams containing Methamphetamine
Hydrochloride locally known as "shabu", with a grand total weight of 15.3723 grams
a [sic] dangerous drug, without any license or authority, in Violation of the
aforesaid law.

CONTRARY TO LAW.[23]

By way of defense, petitioner disavowed the charges and claimed that the
confiscated items were planted evidence. He averred that SPO4 Balolong threw
something under their bed, which turned out to be a folded newspaper
containing nine (9) small plastic sachets, further containing
suspected shabu.[24] His mother, Gwendolyn, and common-law wife, Justin,
corroborated this statement.[25] Petitioner likewise disclaimed ownership of the
Mitsubishi Pajero where the police officers found several drug paraphernalia,
claiming that Gwendolyn owned the vehicle. Finally, he challenged the legality of
the issuance of the search warrant, averring that Antonio Buted, Jr. (Buted), the
purported deponent/asset therein, had ill motives against him because of parking
issues.[26]

The RTC Ruling

In a Decision[27] dated December 8, 2014, the RTC found petitioner guilty of

violation of Sections 11 and 12, Article II of RA 9165, as charged. For Illegal
Possession of Dangerous Drugs under Section 11, he was sentenced to life
imprisonment and ordered to pay a fine of P300,000.00. On the other hand, for
Illegal Possession of Drug Paraphernalia under Section 12, he was sentenced to the
indeterminate penalty of six (6) months and one (1) day to two (2) years and
ordered to pay a fine of P10,000.00.[28]

The RTC held that by agreeing to be arraigned and tried, petitioner was deemed to
have waived his right to question the legality of the issuance of the search warrant.
In any case, it found the search warrant to have been duly issued after searching
questions had been conducted both on the applicant and the deponent, in
accordance with the Constitution and the Rules of Court, and that the police officers
properly implemented the same. Likewise, the RTC held that all the elements of the
crimes charged were duly established and that the procedural safeguards under
Section 21, Article II of RA 9165 on the preservation of the chain of custody of the
seized items had been complied with. On the other hand, it rejected petitioner's
defenses of denial and frame-up, finding the same to have no concrete and
convincing basis. Dissatisfied, petitioner appealed his conviction.

The CA Ruling

In a Decision[29] dated June 28, 2017, the CA affirmed with modification petitioner's
conviction with respect to the charge of Illegal Possession of Dangerous Drugs by
increasing the fine imposed to P500,000.00.[30] The CA held that the RTC complied
with the requirements for the determination of the existence of probable cause in
the issuance of the search warrant. Likewise, having found that the police officers'
entry into petitioner's house was valid, it upheld the manner of its implementation.
It also sustained the RTC's finding that the chain of custody of the seized items had
been preserved, positing that the discrepancies in their weight as it appeared first,
on the original information for Crim. Case No. 15244 and later, in the amended
information, can be explained by the fact that the police officers belatedly obtained
a copy of the laboratory report. Finally, it rejected petitioner's defense that the
seized items were planted evidence, finding the same self-serving and not worthy
of credence.

Petitioner's motion for reconsideration was denied in a Resolution[31] dated January

22, 2018; hence, this petition.

The Issue Before the Court

The issue for the Court's resolution is whether or not the CA erred in upholding
petitioner's conviction for the crimes charged.

The Court's Ruling

The petition is meritorious.

At the outset, it must be emphasized that an appeal in criminal cases throws the
whole case open for review, and the appellate court has the duty to correct, cite,
and appreciate errors in the appealed judgment, whether or not assigned or
unassigned.[32] The appeal confers the appellate court full jurisdiction over the case
and renders such court competent to examine records, revise the judgment
appealed from, increase the penalty, and cite the proper provision of the penal
law.[33]

The rule that a trial court's findings are accorded the highest degree of respect, it
being in a position to observe the demeanor and manner of testifying of the
witnesses, is not absolute and does not apply when a careful review of the records
and a meticulous evaluation of the evidence reveal vital facts and circumstances
which the trial court overlooked or misapprehended and which if taken into account
would alter the result of the case.[34]

Probable cause in the issuance of

the search warrant

Petitioner first challenges the validity of the search warrant, insisting that it was
defective as the testimony of the applicant, SPO4 Balolong, relied on hearsay
evidence. As such, there can be no probable cause to issue the search warrant for
lack of personal knowledge on his part.

Under Section 2,[35] Article III of the Constitution, the existence of probable cause
for the issuance of a search warrant is crucial to the right against unreasonable
searches and seizures, and its existence largely depends on the finding of the judge
conducting the examination.[36] To substantiate a finding of probable cause, Section
5, Rule 126 of the Rules of Court specifically requires:

Section 5. Examination of complainant; record. – The judge must, before issuing

the warrant, personally examine in the form of searching questions and answers, in
writing and under oath, the complainant and the witnesses he may produce on facts
personally known to them and attach to the record their sworn statements,
together with the affidavits submitted.

"The 'probable cause' for a valid search warrant has been defined as such facts and
circumstances which would lead a reasonably discreet and prudent man to believe
that an offense has been committed, and that objects sought in connection with the
offense are in the place sought to be searched. This probable cause must be shown
to be within the personal knowledge of the complainant or the witnesses he may
produce and not based on mere hearsay."[37] Relative thereto, the Court held
in People v. Tee[38] that "[l]aw enforcers cannot themselves be eyewitnesses to
every crime; they are allowed to present witnesses before an examining
judge"[39] for the purpose of determining probable cause in the issuance of a search
warrant.

In this case, the judge issued the search warrant not merely on the basis of SPO4
Balolong's testimony but further, based on the first-hand information proffered by
the confidential asset who testified that after the surveillance conducted by the
police officers, he personally bought shabu from petitioner in the course of a "test
buy" arranged with SPO4 Balolong, to wit:

COURT – So afterwards, what happened after the surveillance?

ASSET – Sir Balolong told me to try to conduct a test buy against Ryan,[40] your
Honor.

Q – When was that?

A – Only this morning, your Honor.

xxxx

Q – So, you complied with the request of Officer Balolong this morning?

A – Yes, your Honor.

Q – As you have stated in your Sworn Statement, the test buy was positive?

A – Yes, your Honor.

Q – And you were able to buy this one?

A – Yes, your Honor. (Witness being referred to the plastic sachet with white
crystalline substance attached to the folder of the case)

x x x x[41]

The asset's testimony therefore corroborates SPO4 Balolong's statement, viz.:

COURT – So, what time did you eventually conduct the test buy?

SPO4 BALOLONG – This morning, your Honor, I told (name of asset) early this
morning, your Honor, and instructed him to conduct a test buy against Damacen
Gabriel Cunanan and he told me that he could try and he did, your Honor.
Q – Alright, were you present or were you with him during the test buy?

A – No, your Honor.

Q – Did you... Were you just near during the test buy?

A – No, your Honor.

Q – So, you just sent (name of asset)?

A – Yes, your Honor.

Q – Since you were not present during the test buy, you relied on what (name of
asset) reported to you afterwards?

A – Yes, your Honor.

Q – Now, the report of (name of asset) is that he was able to buy shabu?

A – Yes, your Honor.

Q - So, why would you trust (name of asset) so much?

A – (name of asset) has been helping me for a long time, your Honor. I have
confidence in him.

x x x x[42]

In People v. Zen Hua,[43] it was held that information from a reliable informant,
corroborated by the police officer's observations through a surveillance, which was
also conducted in this case, is sufficient to establish probable cause. It bears
stressing at this point that a magistrate's determination of probable cause for the
issuance of a search warrant is paid great deference by a reviewing court as long as
there was substantial basis for that determination. Moreover, it is presumed that a
judicial function has been regularly performed, absent a showing to the
contrary,[44] as in this case.

Implementation of the search warrant

Next, petitioner contends that the implementation of the search warrant was
irregular. While he admits[45] that the police officers were not denied entry into the
premises, he, however, decries the alleged show of force of the police officers and
that SPO4 Balolong failed to introduce himself and the police officers, show the
search warrant, ask for the identity of the person who answered them outside the
house, or explain the contents of the search warrant in a language or dialect known
to and understood by the said person.[46]

"Generally, officers implementing a search warrant must announce their presence,

identify themselves to the accused and to the persons who rightfully have
possession of the premises to be searched, and show to them the search warrant to
be implemented by them and explain to them said warrant in a language or dialect
known to and understood by them. The requirement is not a mere procedural
formality but is of the essence of the substantial provision which safeguards
individual liberty. No precise form of words is required. It is sufficient that the
accused has notice of the officers, their authority and the purpose of the search and
the object to be seized."[47] However, although a search and seizure of a dwelling
might be constitutionally defective, if the police officers' entry was without prior
announcement, law enforcement interest may also establish the reasonableness of
an unannounced entry. Indeed, there is no formula for the determination of
reasonableness; each case is to be decided on its own facts and circumstances.[48]

In this case, petitioner admitted[49] that the police officers were not prevented from
going inside the house. Thus, the only issue that remains to be resolved is the point
when the police officers were already directly outside the bedroom of petitioner.
Relative thereto, SPO4 Balolong testified[50] that they knocked on the bedroom
door, which petitioner himself opened, and proceeded to announce their identities
and purpose of serving the search warrant. Further, petitioner's claim that the
police officers failed to read the search warrant or inform him of its contents is
belied by the testimony of Chairman Ayson, who affirmed thus:

PROSECUTOR FAJARDO – So, when you arrived there, what happened next?

CHAIRMAN AYSON – When I entered the house, a search warrant copy [was] read
by me, sir.

Q – And who presented to you that search warrant?

A – A member of the police, sir.

Q – You said that you read the search warrant?

A – Yes, sir.
Q – And after reading that search warrant, what happened next?

A – After that we informed the subject that there is such a thing[,] a search
warrant at that time, sir.

Q – And who informed the subject about the search warrant?

A – The police officer, sir.

Q – And who witnessed the same, Mr. Witness, that they are there to implement
the search warrant?

A – Before implementing the search warrant we called up the barangay officials and
other media personalities, sir.

x x x x[51]

Likewise, the mere fact that the police officers were carrying firearms did not
negate or had no actual bearing on the validity of the implementation of the search
warrant, the same being neither a requirement nor a prohibition under the law. As
regards petitioner's insistence that the police officers pointed their firearms at him
and his household, which constituted show of force, the Court finds the records
devoid of evidence to prove the same except for the claims of the defense
witnesses. The Court accords more probative weight and credence to the
testimonies of the police officers who caught petitioner in flagrante delicto in
possession of illegal drugs and paraphernalia during the conduct of a valid search,
in the absence of evidence that they have been inspired by an improper or ill
motive,[52] as in this case.

Chain of custody of the seized items

Be that as it may, however, the Court finds certain irregularities with respect to the
integrity and probative value of the corpus delicti.

The duty of the prosecution is not merely to present in evidence the seized illegal
drugs; rather, it is also essential that the dangerous drugs seized from the accused
– petitioner in this case – be the very same substance offered in evidence in court,
as the identity of the drugs must be established with the same unwavering
exactitude as that required to make a finding of guilt,[53] that is, proof beyond
reasonable doubt. The prosecution has to show an unbroken chain of custody over
the dangerous drugs so as to obviate any unnecessary doubts on its identity on
account of switching, "planting," or contamination of evidence[54] arising from its
unique characteristic that renders it indistinct, not readily identifiable, and easily
tampered with.[55]

"Chain of custody" is the duly recorded authorized movements and custody of the
seized drugs at each stage, from the time of seizure/confiscation to receipt in the
forensic laboratory, to safekeeping and the presentation in court for identification
and destruction.[56] Accordingly, the prosecution is put to task to account for each
link of the chain from the moment the drugs are seized up to their presentation in
court as evidence of the crime.

For the purpose of establishing the chain of custody in cases involving dangerous
drugs, Section 21, Article II of RA 9165 sets certain parameters in place, which
police officers are mandated to follow. Under said section, the apprehending team
shall, among others, immediately after seizure and confiscation conduct a
physical inventory and photograph the seized items in the presence of the
accused or the person from whom the items were seized, or his
representative or counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public official who shall be
required to sign the copies of the inventory and be given a copy of the same, and
the seized drugs must be turned over to the PNP Crime Laboratory within twenty-
four (24) hours from confiscation for examination. In People v. Mendoza,[57] the
Court stressed that "[w]ithout the insulating presence of the representative
from the media or the [DOJ], or any elected public official during the
seizure and marking of the [seized drugs], the evils of switching, 'planting'
or contamination of the evidence that had tainted the buy-busts conducted
under the regime of [RA] 6425 (Dangerous Drugs Act of 1972) again reared their
ugly heads as to negate the integrity and credibility of the seizure and
confiscation of the [said drugs] that were evidence herein of the corpus
delicti, and thus adversely affected the trustworthiness of the
incrimination of the accused. Indeed, the x x x presence of such witnesses
would have preserved an unbroken chain of custody."[58]

After a punctilious evaluation of the records of this case, the Court finds that the
integrity and credibility of the seized items had been compromised. To recapitulate,
the following sets of items were recovered during the search conducted on the
residence of petitioner, including where and who recovered them:

Confiscated Items Where recovered Who recovered

Nine (9) or ten (10) plastic sachets Allegedly retrieved by petitioner's SPO4 Balolong
containing white crystalline substance mother, Gwendolyn, from under
wrapped in a white cloth petitioner's bed

Small box labelled "safety can be fun" Inside petitioner's bedroom PO1 Ventura
containing six (6) small aluminum foils
and two (2) disposable lighters

One (1) small white carton box containing Inside petitioner's Mitsubishi Pajero PO1 Saclayan
two (2) pieces cut aluminum foils and four
(4) pieces empty plastic sachets, and (1)
big heat-sealed plastic sachet
containing shabu

First, the prosecution witnesses alleged that Gwendolyn, petitioner's mother, came
out from petitioner's bedroom with a bundle wrapped in white cloth, which she
claimed SPO4 Balolong threw under petitioner's bed. In open court, SPO4 Balolong
testified that when he opened the bundle, he counted nine (9) plastic
sachets containing shabu inside it, to wit:

PROSECUTOR FAJARDO – So, when you took the same from her, what did you do
with that white cloth?

SPO4 BALOLONG – I searched the cloth and found at first nine (9) pieces of
plastic sachets, sir, containing alleged shabu.

x x x x[59] (Emphasis supplied)

In subsequent statements, however, SPO4 Balolong contradicted himself and

declared that he saw ten (10) plastic sachets instead of nine (9), viz.:

PROSECUTOR FAJARDO – When you placed your markings, by the way, how many
plastic sachets are you referring to that you marked?

SPO4 BALOLONG – Ten (10), sir.

Q – Ten (10). When you marked those plastic sachets, who was present?

A – The barangay captain, sir;

xxxx

Q – And after placing your markings on the ten (10) plastic sachets, what next did
you do?

A – We proceeded with the search, sir.

Q – That ten (10) plastic sachets, what did you do with that after marking the
same?

A – I gave them to PO3 Santos, sir.

x x x x[60] (Emphases supplied)

The respective testimonies of Chairman Ayson[61] and SPO1 Santos,[62] as well as

the Receipt of Property Seized,[63] Inventory of Seized Items,[64] Extract
Copy,[65] and Initial Laboratory Report[66] all showed that there were ten (10), not
nine (9), plastic sachets of shabu found in the bundle confiscated from Gwendolyn.

Unfortunately, the records are bereft of evidence to show that the prosecution
witnesses endeavored to reconcile the discrepancy in the number of said plastic
sachets, which failure is fatal to the cause of the prosecution. In its December 8,
2014 Decision, the RTC noted[67] both the discrepancy and the prosecution's failure
to explain it but merely brushed it aside, opting to simply receive at face value the
prosecution witnesses' subsequent statements that there were ten (10) plastic
sachets, opining that the imposable penalty in case of conviction will be the same
regardless of the actual number of sachets seized.

However, the actual number of plastic sachets found inside the bundle goes into the
integrity of the corpus delicti of the crime charged, as the crux of petitioner's
defense was that the seized items were planted evidence. As such, it was
imperative for SPO4 Balolong to clarify his conflicting statements, especially in light
of the photograph[68] taken of the seized items showing that there were, in fact,
only nine (9) plastic sachets and not ten (10). The absence of any clarification from
the prosecution on this score compromised the integrity of the confiscated
evidence.

Second, some of the confiscated items were not properly marked.

SPO4 Balolong also alleged[69] that he placed his initials, "RVB,"[70] as markings on
ten (10) plastic sachets containing shabu. However, when presented with the
plastic sachets in court for purposes of identification, he testified thus:

PROSECUTOR FAJARDO – You said that you marked the same, kindly point to us
those markings that you placed in those plastic sachets?

SPO4 BALOLONG – Here is my marking, sir, written in blue pentel pen. (Witness
pointing referring to the capital letters RB written on one side of each of the plastic
sachets with blue ink.)

x x x x[71] (Emphasis supplied)

In the Initial Laboratory Report[72] of the seized items, it appears that the initials
inscribed on the plastic sachets were, indeed, "RB" and not "RVB." Similar to the
prosecution's failure to clarify the actual number of the plastic sachets found inside
the white cloth bundle, the inconsistency in the markings purportedly placed by
SPO4 Balolong thereon and the failure to explain such inconsistency militate against
the integrity and probative value of the first set of seized items.

Similarly, in the case of the drug paraphernalia found by PO1 Ventura inside
petitioner's bedroom, he testified that he did not place any markings thereon and
merely turned them over to SPO4 Ancheta, who was the one who marked the
items,[73] to wit:

PROSECUTOR FAJARDO – How about those cut aluminum foils which you found
inside the small box you are referring to, how will you be able to identify the same?

PO1 Ventura – I cannot...

xxxx

COURT – Why, did you not ask what were the markings that he placed?

PROSECUTOR FAJARDO – He did not place any markings, your Honor.

COURT – He did not place any markings.

PROSECUTOR FAJARDO – He just submitted it to Officer Ancheta.

xxxx
WITNESS – I cannot recall, your Honor, if I placed my markings or not, I cannot
recall, your Honor.

COURT – But you are sure that you gave them to SPO4 Ancheta?

WITNESS – Yes, your honor.

COURT – But you don't know what SPO4 Ancheta did to the foils that you submitted
to him?

WITNESS – Because when I gave him the six cut aluminum foils as if he wrote
something on the items and then somebody was taking pictures, your Honor.

PROSECUTOR FAJARDO – Did you come to' know those writings he placed in that
aluminum foil?

WITNESS – No, sir.

x x x x[74] (Emphasis supplied)

As a result, when the said items were presented to PO1 Ventura for identification in
open court, he could not properly identify whether they were the same items he
found inside petitioner's bedroom. In fact, he admitted that he could recognize the
small box only by its label and the two (2) disposable lighters only by color, to wit:

PROSECUTOR FAJARDO – If that small box containing cut aluminum foils and
lighters will be shown to you right now in Court, will you be able to identify it?

WITNESS – Yes, sir.

Q – How will you be able to identify the same, Mr. Witness?

A – Only that what was written on the box, sir.

Q – What do you mean by that thing that was written on the box?

A – Because on the box there is something written there, sir.

Q – You mean the label of the box, you are referring to that one?

A – Yes, sir.
Q – And if you could recall what was the label of the box?

A – I can recall "safety can be fun," sir.

xxxx

Q – How about the lighters that you found together with the box, if that will be
shown to you will you be able to identify it?

A – Yes, sir.

Q – How will you be able to identify it?

A – The color, sir.

x x x x[75]

In People v. Nuarin,[76] the Court explained that a crucial step in proving the chain
of custody is the marking of the seized drugs or other related items immediately
after they are seized from the accused. Marking after seizure is the starting point in
the custodial link; hence, it is vital that the seized contraband be immediately
marked because succeeding handlers of the specimens will use the markings as
reference. The marking of the evidence serves to separate the marked evidence
from the corpus of all other similar or related evidence from the time they are
seized from the accused until they are disposed of at the end of the criminal
proceedings, thus preventing switching, "planting," or contamination of
evidence.[77] As such, insofar as the small box labelled "safety can be fun" six (6)
small aluminum foils, and two (2) disposable lighters are concerned, there is
nothing thereon that serves to distinguish them to prove that they were the same
items that PO1 Ventura found inside petitioner's bedroom during the search. At the
outset, therefore, there was already a gap in the chain of custody of the said items.

Third, SPO4 Balolong testified that the search on petitioner's Mitsubishi Pajero
yielded only one (1) plastic sachet of shabu and nothing else, thus:

PROSECUTOR FAJARDO – That Pajero you are referring to, where was it at that
time?

WITNESS – It was parked at their garage, sir.

Q – And what was the result of that search they made on that vehicle?

A – A one (1) plastic sachet of shabu was seized inside the vehicle, sir.

Q – Aside from that, were there any item which was found inside the vehicle?

A – Nothing, sir.

Q – Where were you at that time when they were searching the vehicle?

A – I was at the back of the vehicle, sir.

x x x x[78] (Emphases supplied)

Apart from the foregoing testimony made by SPO4 Balolong, there is no other
mention in the records of the aforesaid plastic sachet of shabu allegedly found in
petitioner's vehicle. It does not appear in the Receipt of Property Seized prepared
by SPO1 Santos, the Inventory of Seized Items prepared by both SPO1 Santos and
SPO4 Ancheta, or the Extract Copy signed by SPO4 Ancheta. For whatever reason
that the police officers deemed it unnecessary or irrelevant to include the said
plastic sachet in the inventory of seized items – if the same had been found at all –
such exclusion renders the entire corpus of evidence against petitioner highly
suspect.

Fourth, the discrepancy in the combined weight of the white crystalline substance
in the plastic sachets confiscated from petitioner, which weighed 16.6 grams in the
original information,[79] decreased to 15.3723 grams in the amended information
was not explained.[80] True, the amendment of the information is allowed before an
accused enters his plea,[81] which obtains in this case. However, and although the
discrepancy of 1.2277 grams may be considered a minuscule amount, the
prosecution's failure to sufficiently explain such discrepancy militates against the
integrity of the corpus delicti.

Finally, there was no representative from the DOJ to witness the photographing
and inventory of the seized items, whose presence, together with that of an elected
public official and a member of the media, is clearly required under Section 21 (a),
Article II of RA 9165. Such absence is inexcusable considering that the police
officers had ample time to ensure the presence of all the witnesses, in light of SPO4
Balolong's assertion that they had conducted a surveillance operation prior to the
application for a search warrant. Unfortunately, they still failed to faithfully comply
with the procedural safeguards, and, worse, they did not offer any explanation for
their non-compliance.[82] It bears stressing that non-compliance with the required
witnesses rule may be permitted if the prosecution proves that the arresting officers
exerted genuine and sufficient efforts to secure the presence of such witnesses,
albeit they eventually failed to appear. While the earnestness of these efforts must
be examined on a case-to-case basis, the overarching objective is for the Court to
be convinced that the failure to comply was reasonable under the given
circumstances.[83] Thus, mere statements of unavailability, absent actual serious
attempts to contact the required witnesses, are unacceptable as justified grounds
for non-compliance.[84]

In fine, the regularity of the performance of official duty on the part of the arresting
officers during the search and its aftermath cannot be presumed when the records
do not contain any explanation why the stringent requirements of Section 21,
Article II of RA 9165 were not complied with. Hence, petitioner's incrimination is
doubtful and his acquittal for the charges of Illegal Possession of Dangerous Drugs
and Illegal Possession of Drug Paraphernalia on the ground of reasonable doubt
should follow.[85]

WHEREFORE, the appeal is GRANTED. The Decision dated June 28, 2017 and the
Resolution dated January 22, 2018 of the Court of Appeals in CA-G.R. CR HC No.
07257 are REVERSED and SET ASIDE. Accordingly, petitioner Damacen Gabriel
Cunanan a.k.a. "Ryan" is ACQUITTED of the crimes charged. The Director of the
Bureau of Corrections is ordered to cause his immediate release, unless he is being
lawfully held in custody for any other reason.

SO ORDERED.