ARRESTS, SEARCHES AND SEIZURES (PART III: REQUISITES OF A VALID WARRANT) 1
1. The warrant must be based upon probable
cause;
2. The probable cause must be determined
personally by the judge;
3. The determination must be made after
examination under oath or affirmation of
the complainant and the witnesses he may
produce;
4. The warrant must particularly describe the
place to be searched and the persons or
things or things to be seized.
Probable Cause
▪ Definition
- Referring to such facts and circumstance
antecedent to the issuance of warrant
that in themselves are sufficient to
induce a cautious man to rely on them
and act in pursuance in thereof; (People v.
Sy Juco, 64 Phil.667; Alvarez v. CFI, 64Phil.33)
- Consists of reasonable ground of
suspicion supported by circumstances
sufficiently strong in themselves to
warrant a cautious man in believing
accused to be committing the offense or
to be guilty of the offense; (Kwong How v. Us,
71 F,2d 71, State ex rel Wong)
- The knowledge of facts, actual or
apparent, strong enough to justify a
reasonable man in belief that he was
lawful grounds for prosecuting
defendant in the manner complained of,
the concurrence of facts and
circumstances reasonably warranting
the belief; (You v. District Court,78 P. 2d 353)
- Such facts and circumstances 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 (Burgos v. Chief
of Staff)
▪ Determination
a. Executive Determination
The executive determination of probable
cause is one made during preliminary
investigation. It is a function that
properly pertains to the public prosecutor
who is given a broad discretion to
determine whether the probable cause
exists and to charge those whom he
believes to have committed the crime as
defined by law and thus should be held for
trial.
b. Judicial Determination
The judicial determination of probable
cause is one made by the judge to
ascertain whether a warrant of arrest
should be issued against the accused. The
judge must satisfy himself that based on
the evidence submitted, there is necessity
for placing the accused under custody in
order not to frustrate the ends of justice.
Judicial Determination of Probable Cause
in Issuing a Warrant of Arrest - Section 5(a),
Rule 112, Rules of Court
1. The judge from the Regional Trial Court
shall personally evaluate the resolution of
the prosecutor and its supporting
evidence within ten days from the filing of
complaint or information;
2. If the evidence clearly on record clearly
fails to establish probable cause, the judge
may immediately dismiss the case;
3. If the judge finds probable cause, he shall
issue a warrant of arrest;
4. If the accused has already been arrested
pursuant to a warrant issued by the judge
who conducted preliminary investigation,
or when the complaint or information was
filed and the accused was lawfully
arrested without warrant, the judge shall
issue a commitment order;
5. In case of doubt in existence of probable
cause, the judge may order the prosecutor
to present additional evidence within five
days from notice and the issue must be
resolved by the court within thirty days
from the filing of complaint of information.
 2 ARRESTS, SEARCHES AND SEIZURES (PART III: REQUISITES OF A VALID WARRANT)
Judicial Determination of Probable Cause
in Issuing a Search Warrant – Section 4-6,,
Rule 126, Rules of Court
1. Before issuing the warrant, the judge must
personally examine in the form of
searching questions and answers, in
writing and under oath, the complainant
and witnesses he may produce on facts
personally known to them and attach to
the record their sworn statements,
together with the affidavits submitted;
2. If the judges 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 the rules.
Preliminary Examination
A preliminary examination is a proceeding for
the purpose of determining probable cause for
the issuance of a warrant of arrest.
Preliminary Investigation
A preliminary investigation is an inquiry or
proceeding 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, and should be
held for trial.
People v. Desmond1
i. What was the criminal charge involved
and who were complained of committing
same?
The criminal charge involved was estafa
against Timothy J. Desmond.
ii. What was the resolution of the City
Prosecutor? Summarize n your own
words.
The State Prosecutor issued a resolution
finding a probable cause for filing estafa
1 G.R. No. 178947, June 26, 2013.
agains Timothy J. Desmond as the
Chairman and Chief Executive Officer of
SBMEI. Desmond represented that he
possessed the necessary influence,
expertise, resources (in terms of credit and
property) for the project knowing the same
to be false as he never had the capital for
the project as borne out by his
correspondences with Virginia Delos
Santos-Dio; and Dio fell for these
misrepresentation and the lure of profit
offered by Desmond. She invested
$1,150,000 and $1,000,000 to the damage
and prejudice of her company.
iii. In which court/branch was the
information raffled?
The information was raffled in the
Regional Trial Court of Olongapo City,
Branch 74.
iv. What were the first few motions filed by
the Appellee before the Regional Trial
Court?
Desmond filed a Motion for
Reconsideration, as well as Motion to
Withdraw Filed Information. He also filed a
Motion to Defer Further Proceedings and
Defer Issuance of Warrant of Arrest but
subsequently withdraw the same and filed,
instead, a Motion for Judicial
Determination of Probable Cause.
v. How did the RTC resolved the motion/s
filed by the Appellee?
The RTC ruled that no probable cause exist
for the crimes against Desmond, since the
element of estafa were not all present.
First, the element of estafa which is
misrepresentation or deceit must be
emphasized that the promises allegedly
made to the complainant by the accused
that her company’s investment will
significantly increase, clearly appeared in
 ARRESTS, SEARCHES AND SEIZURES (PART III: REQUISITES OF A VALID WARRANT) 3
Subic Bay Marine Exploration, Inc.’s
business plan dated January 12, 2001. The
court cannot find any sufficient evidence
that the accused personally assured the
complainant about his so-called power,
influence and credit with the SBMA and
other financial institutions that would
supposedly insure the viability and
profitability of the project.
Second, the element of personal
misappropriation is not present. It may be
conceded that the money was utilized to
pay salaries of expatriates and staff as well
as the cost of utilities, which Dio failed to
show that the money was taken from her
companies’ investments in SBMEI. It must
be pointed out that other than
complainant’s bare allegation, there was
no document presented categorically
stating that the investment of Dio’s
companies were earmark for a particular
payment or project. Hence, when the
investment entered SBMEI’s financial
coffers, the same presumably were co-
ix.
mingled with other monies of the
corporation.
vi. Was a warrant of arrest issued by the
RTC?
The motion to issue warrant of arrest and
hold departure order as well as the prayer
for provisional remedy are necessarily
denied.
vii. Was there grave of abuse and discretion
x.
when the RTC acted on the motions filed
by the Appellee?
There was a grave of abuse and discretion
when the RTC acted on the motions filed by
the Desmond. The CityProsecutor’s Office
filed a petition for “certiorari and
mandamus” before the Court of Appeals on
the ground of grave abuse of discretion.
viii. How did the Supreme Court define
probable cause and distinguish executive
determination thereof from judicial
determination? Summarize in your own
words.
The Supreme Court rule that the
determination of probable cause may be
either executive or judiciary.
Executive determination of probable cause
is made by a public prosecutor, during a
preliminary investigation, where he is
given broad discretion to determine
whether probable cause exist for the
purpose of filing a criminal information in
court.
Judicial determination of probable cause is
made by a judge to ascertain whether a
warrant of arrest should be issued against
the accused. The judge must satisfy himself
that, on the basis of the evidence
submitted, there is necessity for the placing
the accused under custody in order not to
frustrate the ends of justice.
Is the filing of Motion for Judicial
Determination of probable cause
necessary and appropriate?
The filing of Motion for Judicial
Determination of Probable Cause is
unnecessary and inappropriate because it
will become a mere superfluity, of not
deliberate attempt to cut short the process
by asking the judge to weigh in on the
evidence without a full-blown trial.
Is a judge bound by the findings of the
Office of Prosecutor of the existence of
probable cause?
The judge is not bound by the findings of
the Office of Prosecutor of the existence of
probable cause.
The judge is not bound by the resolution of
the public prosecutor who conducted the
preliminary investigation and must himself
ascertain from the latter’s findings and
supporting documents whether probable
 4 ARRESTS, SEARCHES AND SEIZURES (PART III: REQUISITES OF A VALID WARRANT)
cause exist for the issuance of warrant of
arrest.
The Constitution provides that the judge
must determine personally after
examination under oath oar affirmation of
the complainant and the witnesses he may
produce before issuing a warrant of arrest.
xi. What evidentiary threshold must be met
in order for a judge to dismiss an
information filed before the court?
Within ten (10) days from the filing of
complaint or information, the judge shall
personally evaluate the resolution of the
prosecutor and its supporting evidence. He
may immediately dismiss the case if the
evidence on record fails to establish
probable cause. If there is probable cause,
he shall issue a warrant of arrest, or a
commitment order if the accused had
already been arrested, pursuant to a
warrant issued by the judge who conducted
the preliminary investigation or when the
complaint or information was filed. In case
of doubt on the existence of probable cause,
the judge may order the prosecutor to
present additional evidence within five (5)
days from notice and the issue must be
resolved by the court within thirty (30)
days from the filing of the complaint or
information.
People v. Gabo2
xii. What was the criminal charge involved
and who were complained of committing
the same?
The criminal charge involved was
destructive arson against Samson Cua
Ting, alias Ding Jian Zhi, External Vice-
President; Wilson Cua Ting, Plant
Manager; Edward Ngo Yao, President of
Marketing Corporation; Willy So Tan, alias
Chen Yi Ming, Vice President for Operation;
Carol Fernan Ortega, Assistant to the
2 G.R. No. 161083 August 3, 2010.
External-Vice President; and John Doe and
Peter Doe.
xiii. Who was the prosecutor and what was his
resolution?
The State Prosecutor was Carlos C.
Pormento. He issued a resolution
recommending that an information for
Destructive Arson be filed against Wilson
Ting, Edward Yao, Willy So Tan and Carol
Ortega while the case against Samson Ting
be dismissed for lack of sufficient evidence
to indict him under the charge.
14. When one is accused of committing a crime,
a complaint is filed against him before the Office
of the Prosecutor. Then, the Office of the
Prosecutor is tasked to determine whether there
is probable cause that the person accused of the
crime committed the same.
Rule 112 of the Rules of Court:
Section 1 - Preliminary investigation is an
inquiry or proceeding 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.
Section 3 (f) Within 10 days after the
investigation, the investigating officer
shall determine whether or not there is
sufficient ground to hold the
respondent for trial.
15. Said determination of probable cause is an
executive determination; it is not the the
“pobable cause” referred to by Article III, Section
2 of the Constitution for purposes of issuing a
warrant of arrest or search warrant. Instead the
“probable cause” which is relevant in discussing
a valid warrant of arrest or search warrant is one
which is judicially determined --- by the Judge,
not by the Office of the Prosecutor.
i. Under Rule 112 of the Rules of
Court, the provision which governs
the judicial determination of
 ARRESTS, SEARCHES AND SEIZURES (PART III: REQUISITES OF A VALID WARRANT) 5
probable cause for purposes of
issuing a warrant of arrest is
Section 6.
In summary, Rule 112, Section 6 of the Rules of
Court, provides:
Within 10 days from the filing of the complaint
or information, there’s a resolution attached with
supporting evidence from the prosecutor.
The judge will personally re-evaluate the
resolution with supporting evidence
After evaluating (4) circumstances might
happen:
1. If the judge finds probable
cause, then the judge will
issue a warrant of arrest
2. If the accused was already
arrested because of a
warrant by the judge who
did a preliminary
investigation or if the
complaint of information
was filed on the basis of
Section 7 of the Rules of
Court the judge will issue a
commitment order.
3. On the face of the evidence,
there is no clear showing of
a probable cause, the judge
will immediately dismiss
the case.
4. If the judge doubts the
existence of probable cause,
the judge will order the
prosecutor for additional
evidence within five days
from notice and the issue
must be resolved by the
court within 30 days from
the filing of the complaint
or information.
ii. Identify which provision/s under
Rule 126 of the Rules of Court
governs the judicial determination
of probable cause for purposes of
issuing a search.
Under Rule 126 of the Rules of Court, the
provision/s which governs the judicial
determination of probable cause for purposes of
issuing a search are Sections 4 and 5.
Rule 126, Section 4 of the Rules of Court,
provides:
There must be personal determination by
the judge of a probable cause with respect to
a specific offense.
Personal determination will be made after
examination under oath or affirmation of the
complainant and witnesses he may produce.
The search warrant must specifically
describe the place to be searched and the
things to be seized which must be anywhere
in the Philippines.
Rule 126, Section 5 of the Rules of Court,
provides:
There must be personal examination by the
judge of the complainant as well as the
witnesses he may produce.
The judge will personally examine them in
the form of searching questions and
answers, in writing and under oath, the facts
known to the complainant and witnesses.
The record must reflect attachments of the
complainant’s and witnesses’ sworn
statements with their affidavits.
16. The following case show the various
distinctions between a ‘preliminary
investigation’ and a ‘preliminary
inquiry/examination’: People v. Desmond, and
People v. Gabo.
Preliminary Investigation v. Preliminary
Inquiry/Examination
Preliminary investigation should be
distinguished as to whether it is an investigation
 6 ARRESTS, SEARCHES AND SEIZURES (PART III: REQUISITES OF A VALID WARRANT)
for the determination of a sufficient ground for
the filing of the information or it is an
investigation for the determination of a probable
cause for the issuance of a warrant of arrest. The
first kind of preliminary investigation is
executive in nature. It is part of the prosecution's
job. The second kind of preliminary investigation
which is more properly called preliminary
examination is judicial in nature and is lodged
with the judge.
On this score, it bears to stress that a judge is not
bound by the resolution of the public prosecutor
who conducted the preliminary investigation and
must himself ascertain from the latter’s findings
and supporting documents whether probable
cause exists for the purpose of issuing a warrant
of arrest. This prerogative is granted by no less
than the Constitution which provides that "no
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." (People v. Desmond)
It is well to remember that there is a
distinction between the preliminary inquiry,
which determines probable cause for the
issuance of a warrant of arrest, and the
preliminary investigation proper, which
ascertains whether the offender should be held
for trial or be released. The determination of
probable cause for purposes of issuing a warrant
of arrest is made by the judge. The preliminary
investigation proper – whether or not there is
reasonable ground to believe that the accused is
guilty of the offense charged – is the function of
the investigating prosecutor. (People v. Gabo)
i. In the case of People v. Desmond what was
the criminal charge involved and who were the
complained of the committing the same?
In the case of People v. Desmond, the criminal
charge was estafa (a) through false pretenses
under Article 315(1)(b) of the Revised Penal
Code (RPC); and (b) with unfaithfulness or abuse
of confidence through misappropriation or
conversion under Article 315(2)(a) of the RPC.
Timothy Desmond, the Chief Executive Officer of
the Subic Bay Marine Exploratorium, Inc.
(SBMEI) and authorized representative of Active
Environments, Inc. and JV China, was the one
complained of committing the same.
ii. In said case, what was the resolution of the
City Prosecutor?
In said case, the resolution of the City Prosecutor
was that the probable cause clearly exists to
indict Desmond of estafa. The City Prosecutor
was able to establish the elements of the crime
charged, to wit: (1) Desmond, being the
Chairman and CEO of SBMEI enticed Dio on the
false pretense that Desmond had the capacity
and resources for the projects; and (2) Desmond,
misappropriated funds when he made certain
disbursements from Westdale’s special account,
meant only for Miracle Beach expenditures,
without the knowledge and consent of Dio. Thus,
corresponding criminal information were filed
with Branch 74, RTC of Olongapo City.
iii. In said case in which court or branch was
the information raffled?
In said case, the information was raffled in
Regional Trial Court of Olongapo City, Branch 74
iv. In said case, what were the first few
motions filed by the Appellee before the
Regional Trial Court?
The first few motions filed by the Appellee
before the Regional Trial Court were Motion for
Reconsideration, Motion to Withdraw Filed
Information, Motion to Defer Further
Proceedings, and Motion to Defer Issuance of
Warrant of Arrest, which he subsequently
withdrew, and filed instead a Motion for Judicial
Determination of Probable Cause.
v. In said case, how did the RTC resolve the
motion/s filed by the Appellee? What was its
reasoning?
 ARRESTS, SEARCHES AND SEIZURES (PART III: REQUISITES OF A VALID WARRANT) 7
The RTC solved the motion/s filed by the
Appellee by ruling in favor of Desmond and
declaring that no probable cause exists for the
crime charged against him since the elements of
estafa were not all present. Its reasoning was
that the promise of significant increase of
investment was on the business plan presented
by SBMEI through Desmond, thus, it is not a
personal assurance of Desmond. Likewise, there
is no evidence showing that Desmond, being the
Chairman and CEO of SBMEI, personally
prepared the business plan and thereby making
it his personal enticements to Dio. Also, there is
no sufficient evidence that Desmond personally
assured Dio of his so-called power, influence and
credit with the SBMA and other financial
institutions that would supposedly insure the
viability and profitability of the project.
Furthermore, Desmond was not the one who
personally valuated the marine mammals
because there is a Buy-Out Agreement pointing
to an independent valuation done by Beijing
Landa Aquarium. Then, on to Desmond’s
personal misappropriation, this was also
unfounded, as there was no document presented
categorically stating that Dio’s investment were
only for a particular payment or project.
Moreover, there was no showing that Desmond
personally caused the payment of the expenses
allegedly in violation of the investment because
SBMEI is a corporation and payment of expenses
such as utilities and salaries are corporate acts,
thus, it can only be done through passage of
Board Resolutions. Hence, in no way it can be
considered as personal acts of Desmond. Finally,
there is again insufficiency of evidence that the
accused alone caused the payment of these
salaries and utilities for the sole purpose of
pocketing the money thereby using the same for
personal gain.
vi. In said case, was a warrant issued by the
RTC?
In said case, warrant of arrest was not issued by
the RTC.
vii. In said case was there a grave abuse of
discretion when the RTC acted on the motions
filed by the Appellee?
Yes, when the RTC acted on the motions filed by
the Appellee, there was grave abuse of discretion
according to the Supreme Court because the
standard of clear lack of probable cause was not
observed. Certain essential facts namely,
whether or not Desmond committed false
representations that induced Dio to invest in
Ocean Adventure and whether or not Desmond
utilized the funds invested by Dio solely for the
Miracle Beach Project for purposes different
from what was agreed upon, remain
controverted.
viii. In said case, how did the Supreme Court
define probable cause and distinguish
executive determination thereof from judicial
determination? Summarize in your own
words.
The Supreme Court define probable cause by
discussing it in two respects, (1) judicial
determination; and (2) executive determination.
As to judicial determination, probable cause is
defined as: the judge must satisfy himself that, on
the basis of the evidence submitted, there is a
necessity for placing the accused under custody
in order not to frustrate the ends of justice. As to
executive determination, probable cause is
defined as: being merely to determine whether
there is sufficient ground, to engender a well-
founded belief that a crime has been committed
and that the respondent is probably guilty
thereof and should be held for trial.
Consequently, the Supreme Court also
distinguished executive determination from
judicial determination. Executive determination
is the determination of probable cause for the
purpose of filing a criminal information in court
and this is done by the Prosecutor in a
preliminary investigation. On the other hand,
judicial determination is the determination of
probable cause for the purpose of issuing a
warrant of arrest and this is the job of the Judge
in a preliminary inquiry/examination.
 8 ARRESTS, SEARCHES AND SEIZURES (PART III: REQUISITES OF A VALID WARRANT)
ix. Is the filing of a Motion for Judicial
Determination of Probable Cause necessary
and appropriate?
The filling of a Motion for Judicial Determination
of Probable Cause is not necessary and
appropriate. The judge is already duty-bound to
determine the existence or non-existence of
probable cause for the arrest of the accused
immediately upon the filing of the information,
the filing of a motion for judicial determination
of probable cause becomes a mere superfluity, if
not a deliberate attempt to cut short the process
by asking the judge to weigh in on the evidence
without a full-blown trial.
x. Is a judge bound by the founding of the
Office of the Prosecutor the existence of
Probable Cause?
A judge is not bound by the finding of the Office
of the Prosecutor of the existence of probable
cause because he must himself ascertain from
the latter’s findings and supporting documents
whether probable cause exists for the purpose of
issuing a warrant of arrest. This prerogative is
granted by no less than the Constitution which
provides that "no 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."
xi. What evidentiary threshold must be met in
court in order for a judge to dismiss an
information filed before the court?
The evidentiary threshold that must be met in
order for a judge to dismiss an information filed
before the court is the standard of clear lack of
probable cause. A judge's discretion to dismiss a
case immediately after the filing of the
information in court is appropriate only when
the failure to establish probable cause can be
clearly inferred from the evidence presented and
not when its existence is simply doubtful
xii. In People v. Gabo, what was the criminal
charge involved and who were complained in
committing the same?
In the case of People v. Gabo, the criminal
charge involved was Destructive Arson and were
complained against Wilson Ting, Edward Yao,
Willy So Tan and Carol Ortega. The case against
Samson Ting be dismissed for lack of sufficient
evidence to indict him under the charge.
xiii. In said case who was the prosecutor and
what was his resolution?
In said case, the prosecutor was State Prosecutor
Carlos C. Pormento and he issued a Resolution,
the dispositive portion of which reads:
WHEREFORE, premises considered, it is
respectfully recommended that an information
for Destructive Arson be filed against Wilson
Ting, Edward Yao, Willy So Tan and Carol Ortega.
That the case against Samson Ting be dismissed
for lack of sufficient evidence to indict him under
the charge. Pursuant to the foregoing Resolution,
an Information19 for Arson was filed against
Wilson Cua Ting, Edward Ngo Yao, Willy So Tan,
Carol F. Ortega, John Doe and Peter Doe, of the
crime of arson, to wit: That on or about May 14,
2001, in the Municipality of Bocaue, Province of
Bulacan, and within the jurisdiction of this
Honorable Court, the above-named accused,
conspiring and confederating and mutually
helping one another, acting in common accord,
did then and there, willfully, unlawfully, and
feloniously, destroy the warehouses known as
Sanyoware Plastic Products Manufacturing Plant
and New Unitedware Marketing Corporation,
including the stocks of raw materials and finish
products, machineries and various equipments
by maliciously burning the same for the purpose
of concealing or destroying evidence of another
violation of law, and to conceal bankruptcy to
defraud creditors and to collect from insurance.
xiv. In said case, in which court or branch was
the infformation raffled?
The Information was raffled to Branch XI,
Regional Trial Court (RTC) of Malolos Bulacan,
 ARRESTS, SEARCHES AND SEIZURES (PART III: REQUISITES OF A VALID WARRANT) 9
3rd Judicial Region. The case was docketed as
Criminal Case No. 300-47M 2002.
xv. In said case, what were the first few
motions filed by the appellee before the RTC?
The first few motions that were applied by the
appellee’s were (1) Motion for Reconsideration
which was denied by the by the RTC (2) appellee
filed a petition for certiorari in CA which was
denied by the CA
xvi. In said case, how did the RTC resolve the
motions filed by the Appellee? What was its
reasoning?
In said case, the RTC applied the equipoise rule
in dismissing the case, because of its observation
that the sworn statements submitted by
petitioner and respondents contained
contradictory positions. there being no grave
abuse of discretion committed by the public
respondent, the assailed Orders dated February
27, 2002 and March 25, 2002 are hereby
AFFIRMED in toto and the present petition is
hereby DENIED DUE COURSE and is, accordingly,
DISMISSED for lack of merit.
xvii. In said case was a Warrant of Arrest
issued by the RTC?
No, based on the foregoing, the RTC acted within
its jurisdiction when it dismissed the case on
lack of probable cause as the same is sanctioned
under Section 6, Rule 112 of the Rules of Court.
xviii. In said case, was it proper for the RTC to
apply the equipoise rule?
No, as the Supreme Court ruled that the reliance
of the RTC in the equipoise rule is misplaced as a
review of previous Court decisions would show
that the position of petitioner is in fact correct.
The equipoise rule has been generally applied
when the parties have already concluded the
presentation of their respective evidence as
shown in a plethora of cases such as Abarquez v.
People, Tin v. People, and Leano v. People.
While the use of the equipoise rule was not
proper under the circumstances of the case at
bar, the same, however, does not equate to an
abuse of discretion on the part of the RTC, but at
most, merely an error of judgment. More
importantly, this Court finds that the RTC had in
fact complied with the requirement under the
rules of personally evaluating the resolution of
the prosecutor and its supporting evidence and
that the assailed Order was arrived at after due
consideration of the merits thereto.
xix. What is the task of a presiding Judge when
an information is filed with the court?
The task of the presiding judge when an
information is filed with the court is first and
foremost to determine the existence or non-
existence of probable cause for the arrest of the
accused.
xx. In said case, how did the Supreme Court
define probable cause and distinguish
executive determination. Summarize in your
own words.
The Supreme Court defined probable cause in
this case that probable cause demands more
than just a suspicion and it requires less than
evidence that would justify conviction. Probable
cause is such set of facts and circumstances as
would lead a reasonably discreet and prudent
man to believe that the offense charged in the
Information, or any offense included therein, has
been committed by the person sought to be
arrested. In determining probable cause, a
person should weigh the given facts and
circumstances without getting technical such as
the Rules of Court in which he does not have any
or enough knowledge. He relies on common
sense. A finding of probable cause needs only to
rest on evidence showing that, more likely than
not, a crime has been committed and there is an
accused.
17. On the other hand, in the case of People v.
Gayoso, discuss the concept of probable cause
in relation to a valid search warrant.
 10 ARRESTS, SEARCHES AND SEIZURES (PART III: REQUISITES OF A VALID WARRANT)
The RTC in the case of People v. Gayoso, issued
a search warrant after finding probable cause
Probable cause for a valid 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 objects sought in connection
with the offense are in the place sought to be
searched." The probable cause must 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."
Probable cause does not mean actual and
positive cause, nor does it import absolute
certainty. The determination of the existence of
probable cause is concerned only with the
question of whether the affiant has reasonable
grounds to believe that the accused committed
or is committing the crime charged.
PERSONAL DETERMINATION BY THE JUDGE
18. Notice that Article III, Section 2 of the 1987
Constitution refers to both search warrant and
warrant of arrest. When said provision requires
that a warrant may only be issued upon probable
cause to be determined personally by the Judge,
such requirement on ‘personal determination by
the judge’ applies to a search warrant and a
warrant of arrest alike, thus:
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 purposes
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.
19. However, such requirement on ‘personal
determination by the judge, varies in operation,
so much that the Rules of Court provide separate
rules in Rule 112, Section 6 for a warrant of
arrest, and in Rule 126, Sections 4 and 5 thus:
Rule 112, Section 6. When warrant of arrest may
issue. ---- (a) By the Regional Trial Court. ---
Within (10) days from the filling of the complaint
or information, the judge shall personally
evaluate the resolution of the prosecutor
and its supporting evidence. He may
immediately dismiss the case if the evidenceon
record clearly fails to establish probable cause. If
he finds probable cause, he shall issue a warrant of
arrest, or a commitment order if the accused had
already been arrested pursuant to a warrant of
arrest issued by the judge who conducted the
preliminary investigation or when the complaint
or information was filed pursuant to section
7 of this Rule. In case of doubt on the existence of
probable cause, the judge may order the
prosecutor to present additional evidence within
five (5) days from notice and the issue must be
resolved by the court (30) days from the filing of
the complaint of information.”
“Rule 126, Section 4. Requisites for issuing search
warrant. --- A search warrant shall not issue
except upon probable cause in connection with
one specific offfense 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 things to be seized
which may be anywhere in the Philippines.”
“Rule 126, 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.”
20. These varying rules have been further
explained by jurisprudence.
 ARRESTS, SEARCHES AND SEIZURES (PART III: REQUISITES OF A VALID WARRANT) 11
People v. Desmond3 - In its November 8, 2006
Decision, the CA upheld the RTC’s authority to
dismiss a criminal case if in the process of
determining probable cause for issuing a
warrant of arrest, it also finds the evidence on
record insufficient to establish probable cause. It
explained that such dismissal is an exercise of
judicial discretion sanctioned under Section 6(a),
Rule 112 of the Revised Rules of Criminal
Procedure. On this score, the CA evaluated the
evidence presented and agreed with the RTC’s
conclusions that there was no sufficient basis
showing that Desmond committed estafa by
means of false pretenses. Neither was it
established that the money sourced from
petitioner Dio was converted by respondent
Desmond for some other purpose other than that
for which it was intended. While a judge’s
determination of probable cause is generally
confined to the limited purpose of issuing arrest
warrants, Section 5(a), Rule 112 of the Revised
Rules of Criminal Procedure explicitly states that
a judge may immediately dismiss a case if the
evidence on record clearly fails to establish
probable cause.
Leviste v. Alameda4 - There are two kinds of
determination of probable cause: executive and
judicial. The executive determination of probable
cause is one made during preliminary
investigation. It is a function that properly
pertains to the public prosecutor who is given a
broad discretion to determine whether probable
cause exists and to charge those whom he
believes to have committed the crime as defined
by law and thus should be held for trial.
Otherwise stated, such official has the quasi-
judicial authority to determine whether or not a
criminal case must be filed in court. Whether
that function has been correctly discharged by
the public prosecutor, i.e., whether he has made a
correct ascertainment of the existence of
probable cause in a case, is a matter that the trial
3 G.R. No. 178947, June 26, 2013.
4 G.R. No. 182677, August 3, 2010.
court itself does not and may not be compelled to
pass upon.
The judicial determination of probable cause is
one made by the judge to ascertain whether a
warrant of arrest should be issued against the
accused. The judge must satisfy himself that
based on the evidence submitted, there is
necessity for placing the accused under custody
in order not to frustrate the ends of justice. If the
judge finds no probable cause, the judge cannot
be forced to issue the arrest warrant. Paragraph
(a), Section 5, Rule 112 of the Rules of Court
outlines the procedure to be followed by the RTC.
To move the court to conduct a judicial
determination of probable cause is a mere
superfluity, for with or without such motion, the
judge is duty-bound to personally evaluate the
resolution of the public prosecutor and the
supporting evidence. In fact, the task of the
presiding judge when the Information is filed
with the court is first and foremost to determine
the existence or non-existence of probable cause
for the arrest of the accused.
21. The case of Soliven v. Makasiar5 leads in
interpreting the requirement of ‘personal
determination’ in Article III, Section 2 of the
1987 Constitution for purposes of issuing a
warrant of arrest.
i. Is ‘personal detemination’ synonymous with
‘personal examination’?
No, personal determination is not synonymous
to personal examination. In the case of Soliven
v. Makasiar, what the Constitution underscores
is the exclusive and personal responsibility of
the issuing judge to satisfy himself of the
existence of probable cause. In satisfying
himself of the existence of probable cause for
the issuance of a warrant of arrest, the judge is
5 G.R. No. 82585, November 14, 1988.
 12 ARRESTS, SEARCHES AND SEIZURES (PART III: REQUISITES OF A VALID WARRANT)
not required to personally examine the
complainant and his witnesses.
ii. Following established doctrine and
procedure, in determining probable cause for
purpose of issuing a warrant of arrest, what
must a judge do?
Following established doctrine and procedure,
the Judge shall: (1) personally evaluate the
report and the supporting documents
submitted by the fiscal regarding the existence
of probable cause and, on the basis thereof,
issue a warrant of arrest; or (2) if on the basis
thereof he finds no probable cause, he may
disregard the fiscal's report and require the
submission of supporting affidavits of witnesses
to aid him in arriving at a conclusion as to the
existence of probable cause.
iii. What is the policy consideration
underlying the answer to the immediate
preceding question?
Sound policy dictates this procedure, otherwise
judges would be unduly laden with the
preliminary examination and investigation of
criminal complaints instead of concentrating on
hearing and deciding cases filed before their
courts.
22. Some illustrations reinforcing the foregoing
rules are the cases of Sales v Sandiganbayan6,
Lim v. Felix7, and Okabe v. Judge Gutierrez8.
i. In Sales v. Sandiganbayan what patent
error was committed by the Ombudsman?
In Sales v. Sandiganbayan the Ombudsman
committed the patent error of “Passing of the
Buck” There was not one continuous
proceeding but rather a case of passing the
buck, so to speak, the last one being the
Ombudsman hurriedly throwing the buck to the
6 G.R. No. 143802, November 16, 2001.
7 G.R. Nos. 94054-57, February 19, 1991.
8 G.R. NO. 150185, May 27, 2004.
Sandiganbayan. The charge against the
petitioner which is Murder is a non-bailable
offense. The Ombudsman, however, did nothing
of the sort and instead swallowed hook, line and
sinker the resolution and recommendation of
Graft Investigation Officer II Cynthia V. Vivar,
among them the finding that, "aside from the
averment of respondent that the victim fired at
him and he was only forced to fire back, no
other evidence was adduced to indicate that
such was what happened. Furthermore, other
dubious circumstances which should have
prompted the Ombudsman to take a second,
deeper look instead of adopting in toto the
recommendation of GIO II Vivar. Among these is
the matter of the two (2) different autopsies on
the cadaver of the victim, one indicating that the
victim sustained two (2) wounds only and the
other showing that the victim had three (3)
wounds. The significance of this fact was not
appreciated by the Ombudsman who likewise
glossed over the adamant refusal of the private
respondent to subject the cadaver of the victim
to a paraffin test, despite the claims of the
accused's witnesses that the victim fired the
Armalite rifle. The Ombudsman for all practical
purposes adopted in its entirety the findings of
the investigating officer despite its obvious
flaws, he actually did nothing at all and, in
effect, threw everything to the Sandiganbayan
for evaluation. Prosecutors are endowed with
ample powers in order that they may properly
fulfill their assigned role in the administration
of justice.
ii. In said case, was there a proper judicial
determination of probable cause? Support
with factual predicates.
No, the court cannot accept the
Sandiganbayan's assertions of having found
probable cause on its own, considering the
Ombudsman's defective report and findings,
which merely relied on the testimonies of the
witnesses for the prosecution and disregarded
the evidence for the defense. Probable cause
may not be established simply by showing that
a trial judge subjectively believes that he has
 ARRESTS, SEARCHES AND SEIZURES (PART III: REQUISITES OF A VALID WARRANT) 13
good grounds for his action. Good faith is not
enough. If subjective good faith alone were the
test, the constitutional protection would be
demeaned and the people would be "secure in
their persons, houses, papers and effects" only
in the fallible discretion of the judge.
iii. In Lim v. Felix, may a Judge without
ascertaining the facts through his own
personal determination and relying solely on
the certification or recommendation of a
prosecutor that a probable cause exists issue
a warrant of arrest?
No, if a Judge relies solely on the certification of
the Prosecutor as in this case where all the
records of the investigation are in Masbate, he
or she has not personally determined probable
cause. The determination is made by the
Provincial Prosecutor. The constitutional
requirement has not been satisfied. The Judge
commits a grave abuse of discretion. The Judge
must go beyond the Prosecutor's certification
and investigation report whenever necessary.
He should call for the complainant and
witnesses themselves to answer the court's
probing questions when the circumstances of
the case so require.
iv. In said case, how did the Supreme Court
explain the requirement of personal
determination of probable cause for purposes
of issuing a warrant of arrest?
In relation to Art. III Section 2, what the
constitution underscores is the exclusive and
personal responsibility of the issuing judge to
satisfy himself of the existence of probable cause.
Following established doctrine and procedures
he shall: (1) personally evaluate the report and
the supporting documents submitted by the
fiscal regarding the existence of probable cause
and issue a warrant of arrest or (2) if he finds no
probable cause, may require the submission of
supporting affidavits and witnesses.
The judge cannot ignore the clear words of the
constitution, which requires “probable cause to
be personally determined by the judge.” If a
judge relies solely on the certification of the
Prosecutor as in this case where all the records
of the investigation are still in Masbate, he/she
has not personally determined probable cause.
The Provincial Prosecutor makes the
determination. The Judge commits a grave abuse
of discretion.
v. In Okabe v. Judge Gutierrez, why did the SC
find that the judge committed grave abuse of
discretion amounting to lack or excess of
jurisdiction?
The respondent judge committed a grave abuse
of his discretion amounting to lack or excess of
jurisdiction in finding probable cause for the
petitioner’s arrest in the absence of copies of the
affidavits of the witnesses of the private
complainant, and her reply affidavit, the counter-
affidavit of the petitioner and the evidence
adduced by the private complainant as required
by case law, and now by Section 8(a), Rule 112 of
the Revised Rules on Criminal Procedure
(Records supporting the information or
complaint). The afore-cited affidavits, more
specifically the fax message of Lorna Tanghal and
the document signed by her covering the amount
of US$1,000 are of vital importance, as they
would enable the respondent judge to properly
determine the existence or non-existence of
probable cause.
VI. In said case, how did the SC explain the
requirement of personal determination of
probable cause for purposes of issuing a
warrant of arrest?
Before the RTC judge issues a warrant of arrest
under Section 6, Rule 112 of the Rules of Court,
in relation to Section 2 Article 3 of the 1987
Constitution, the judge must make a personal
determination of the existence or non-existence
of probable cause for the arrest of the accused.
The duty to make such determination is personal
and exclusive to the issuing judge. He cannot
abdicate his duty and rely on the certification of
the investigating prosecutor for such
certification is, by itself, ineffective.
In determining the existence or non-existence of
probable cause, the RTC judge may rely on the
findings and conclusions in the resolution of the
investigating prosecutor. However, the judge
 14 ARRESTS, SEARCHES AND SEIZURES (PART III: REQUISITES OF A VALID WARRANT)
should not rely solely on the said report. The
judge should consider not only the report of the
investigating prosecutor but also the
affidavit/affidavits and the documentary
evidence of the parties, the counter-affidavit of
the accused and his witnesses, as well as the
transcript of stenographic notes submitted to the
court upon filing the information.
23.
i. Based on Rule 126, Sections 4 and 5 of the
Rules of Court, how must a judge comply with
the requirement of “personal determination”
of probable cause?
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.
ii. In the case of Silva v. Presiding Judge, RTC of
Negros Oriental, Br. XXXIII, why did the SC
declare Search Warrant No. 1 null and void?
In issuing a search warrant, the judge must
strictly comply with the constitutional and
statutory requirement that he must determine
the existence of probable cause by personally
examining the applicant and his witnesses in the
form of searching questions and answers. His
failure to comply with this requirement
constitutes grave abuse of discretion.
Sections 3 and 4, Rule 126 of the Rules of Court
provide for the requisites for the issuance of a
search warrant, to wit:
Section 3. Requisite 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 things to be seized.
Section 4. Examination of complainant, record
– the judge must, before issuing the warrant
personally examine in the form of searching
questions and answers, in writing and under oath
the complainant and any witnesses he may
produce on facts personally known to them and to
attach to the record their sworn statements.
iii. In said case, how did the SC characterize
the questions propounded by the judge during
the deposition?
The court examined the questioned search
warrant and found that Judge Ontal failed to
comply with the legal requirement that he must
examine the applicant and his witnesses in the
form of searching questions and answers in
order to determine the existence of probable
cause. The “Deposition of Witness” which was
submitted contained, for the most part,
suggestive questions answerable by merely
placing “yes” or “no” in the blanks provided. The
above disposition did not only contain leading
questions, but it was also very broad. The
questions propounded to the witnesses were in
fact, not probing but were merely routinary. The
deposition was already mimeographed and all
that the witnesses had to do was fill in their
answers on the blanks provided.
iv. In said case, how did the SC characterize
probable cause for purposes of issuing a
search warrant?
Here, the court cited the case of Prudente vs.
Dayrit for their discussion on probable cause:
“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
 ARRESTS, SEARCHES AND SEIZURES (PART III: REQUISITES OF A VALID WARRANT) 15

must be shown to be within the personal vii. Make a table summarizing the differences
knowledge of the complainant or the witnesses between the determination of probable cause
as he may produce and not based on mere in issuing a warrant of arrest and a search
hearsay.” warrant .
WARRANT OF SEARCH WARRANT
v. In the case of People v. Mamaril9, why did ARREST
the SC declare Search Warrant No. 99-51
invalid? 1. The judge must 1. The judge must
The court found that the requirement mandated personally evaluate examine the complaint
by law that the examination of the complainant the report and the and his witnesses
and his witnesses must be under oath and supporting personally
reduced into writing in the form of searching documents submitted
questions and answers was not complied with, by the fiscal regarding
rendering the search warrant invalid. the existence of
The issuance of a search warrant is justified only probable cause and
upon a finding of probable cause. In determining issue a warrant of
the existence of probable cause, it is required arrest
that:
1. The judge must examine the complainant 2. If on the basis 2. The examination
and his witnesses personally; thereof, he finds no must be under oath
2. The examination must be under oath; and probable cause, he (must refer to the truth
3. The examination must be reduced in may require the of facts within personal
writing in the form of searching questions and submission of knowledge of applicant
answers. supporting affidavits or his witnesses)
and witnesses.
v. In said what were the factual predicates that
led the SC to declare the subject warrant 3. The examination 3. The examination
invalid? must be reduced in must be reduced in
Atty. Enrico O. Castillo presented before the writing in the form of writing in the form of
court only the application for search warrant and searching questions searching questions and
supporting affidavits of PO3 Alberto Santiago and answers answers
and Diosdado Fernandez. Atty. Castillo could not
produce the sworn statements of the
complainant and his witnesses showing that 24.
judge examined in the form of searching Nothing much may be discussed under this
questions and answers in writing as required by requisite, maybe, except the significance of
law. an oath or affirmation in examining the
Based on the above testimony and the other complainant and witness. These testimonies
evidence on record, the prosecution failed to under oath or affirmation must be within the
prove that Executive Judge Eugenio G. Ramos put ‘personal knowledge’ of the complainant and
into writing his examination of the applicant and the witnesses, as in the case of Cupcupin v.
his witnesses in the form of searching questions People, thus:
and answers before the issuance of the search
warrant. The records only show the existence of “In determining the probable cause in the
an application for a search warrant and the issuance of a search warrant, the oath
affidavits of the complainant’s witnesses. required must refer to the truth of the facts
within the personal knowledge of the
9 G.R. No. 147607, January 22, 2004. applicant or his witnesses, because the
 16 ARRESTS, SEARCHES AND SEIZURES (PART III: REQUISITES OF A VALID WARRANT)
purpose thereof is to convince the
committing magistrate, not the individual,
making the affidavit and seeking the issuance
of the warrant, of the existence of probable
cause. Search warrants are not issued on
loose, vague or doubtful basis of fact, nor on
mere suspicion or belief.”
25.
In the cases of Corro v. Lising10 and People v.
Tee 11 , the Supreme Court explained the
different purposes of the requirement of
particularity of description in the warrants.
What are these?
Corro v. Lising - A search warrant should
particularly describe the place to be searched
and the things to be seized. The evident purpose
and intent of this requirement is to limit the
things to be seized to those and only those,
particularly described in the search warrant- to
leave the officers of the law with no discretion
regarding what articles they should seize, to the
end that unreasonable searches and seizures
may not be committed – that abuses may not be
committed.
Thus, an application for search warrant must
state with particularly the alleged subversive
materials published or intended to be published
by the publisher and the editor.
People v. Tee - 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.
What the constitution seeks to avoid are search
warrants of broad or general characterization or
10 G.R. No. L-69899, July 15, 1985.
11 G.R. Nos. 140546-47, January 20, 2003.
sweeping descriptions, which will authorize
police officers to undertake a fishing expedition
to seize and confiscate any and all kinds of
evidence or articles relating to an offense.
26.
In the case of Nolasco v. Pano12, the Supreme
Court explained the invalidity of “General
Warrant.” On the other hand, the Supreme
Court also explained the invalidity of a
“Scatter-shot Warrant” in the case of
Tambasen v. People13.
Invalidity of a General Warrant (Nolasco v.
Pano)
There is absent a definite guideline to the
searching team as to what items might be
lawfully seized thus giving the officers of the law
discretion regarding what articles they should
seize as, in fact, taken also were a portable
typewriter and 2 wooden boxes.
The warrant issued by respondent judge here is
in the nature of a general warrant and infringes
on the constitutional mandate requiring
particular description of the things to be seized.
The language used is so all embracing as to
include all conceivable records and equipment of
petitioner regardless of whether they are legal or
illegal.
Invalidity of a Scatter-shot Warrant
(Tambasen v. People)
The search warrant issued herein violates
Section 3, Rule 126 of the Revised Rules of Court,
which prohibits the issuance of a search warrant
for more than one specified offense. Here, the
caption of Search warrant No. 365 reflects the
violation of two special laws: PD No. 1866 for
illegal possession of firearms and RA No. 1700,
the Anti-Subversion Law. Said Search Warrant
was therefore a “scatter-shot warrant” and
totally null and void.
12 G.R. No. L-69803, October 8, 1985.
13 G.R. No. 89103, July 14, 1995.
 ARRESTS, SEARCHES AND SEIZURES (PART III: REQUISITES OF A VALID WARRANT) 17
Moreover, by their seizure of articles not
described in the search warrant, the police acted
beyond the parameters of their authority under
the search warrant. Section 2, Article II of the
1987 Constitution requires that a search warrant
should particularly describe the things to be
seized. The evident purpose and intent of which
is to leave the officers of the law with no
discretion regarding what articles they should
seize, to the end that unreasonable searches and
seizures may not be made and that abuses may
not be committed.
The same constitutional provision is also aimed
at preventing violations of security in person and
property and unlawful invasions of the sanctity
of the home, giving remedy against such
usurpations when attempted.
27.
How particular must the description of the
items subject of the search and seizure be?
The answer to this question varies from case
to case. However, the following cases may be
inquired into for guidance: People v. Rubio14
and Kho v. Judge Makalintal 15 . Supply an
answer and a summary of relevant facts
leading to the relevant ruling.
It has been held that, where, by the nature of the
goods to be seized, their description must be
rather general, it is not required that a technical
description be given, as this would mean that no
warrant could issue.
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. Otherwise,
it would be virtually be impossible for applicants
to obtain a warrant, as they would not know
exactly what kind of things they are looking for.
People v. Rubio - By virtue of the police power
granted to them by the Administrative Code,
14 G.R. No. L-35500, October 27, 1932.
15 G.R. No. 94902-06, April 21, 1999.
section 1434, the chief secret service agent and a
supervising agent of the Bureau of Internal
Revenue gave testimony under oath before Judge
Revilla in which they specified the premises
occupied by Jose Rubio, which it was desired to
search. The witnesses stated that there are
fraudulent books, invoices and records in the
premises.
Appellant contended that the application and the
warrant did not particularly describe the things
to be seized.
Issue: How particular must the description of
the items subject of the search and seizure
be?
Ruling: While it is true that the property to be
seized under a warrant must be particularly
described herein and no other property can be
taken thereunder, yet the description required to
be specific only in so far as the circumstances
will ordinarily allow. It has been held that,
where, by the nature of the goods to be seized,
their description must be rather general, it is not
required that a technical description be given, as
this would mean that no warrant could issue.
Appellant has not shown that the agents
exceeded their powers under the warrant by
seizing property other than that described in the
warrant in question. The list of books, invoices
and records seized by officers is the best
evidence to show that they strictly obeyed the
command of their warrant by seizing those
things and only those described in the warrant.
Kho v. Judge Makalintal - NBI agents applied for
the issuance of two search warrants against
Benjamin Kho after conducting surveillance and
investigation in the two houses referred to on
the basis of the information that it was used as
storage centers for unlicensed firearms and
“chop-chop” vehicles. The 2 searches yielded
several high-powered firearms with explosives
and ammunition.
 18 ARRESTS, SEARCHES AND SEIZURES (PART III: REQUISITES OF A VALID WARRANT)
Petitioners claim that subject search warrants
are general warrants as the things to be seized
were not described and detailed out.
Issue: How particular must the description of
the items subject of the search and seizure
be?
Ruling: The court holds that the warrants
comply with Constitutional and statutory
requirements. 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.
Otherwise, it would be virtually be impossible
for applicants to obtain a warrant, as they would
not know exactly what kind of things they are
looking for.
ITCAB, the NBI agents could not have been in a
position to know beforehand the exact caliber or
make of the firearms to be seized. They could not
have known the particular type of weapons
involved before seeing such weapons at close
range, which was of course impossible at the
time of the filing of the applications for subject
search warrants.
28.
Is a search warrant severable? What does it
mean to be one? The answer to this question
is found in the case of Microsoft Corporation
v. Maxicorp, Inc. Supply an answer and a
summary of relevant facts leading to the
relevant ruling.
A search warrant may be severable; the items
not sufficiently described may be cut off without
destroying the whole warrant.
Microsoft Corporation v. Maxicorp, Inc.16 - NBI
agents filed several applications for search
warrants against Maxicorp for alleged violation
of Section 29 of PD 49 and Art. 189 of the RPC.
Judge Bayhon issued such warrants paragraph
(c) of which states:
16 G.R. No. 140946, September 13, 2004.
“Sundry items such as labels, boxes, prints,
packages, wrappers, receptacles, advertisements
and other paraphernalia bearing the copyrights
and/or trademarks owned by Microsoft
Corporation.”
Maxicorp argues that the warrants issued against
it are too broad in scope and lack the specificity
required with respect to the objects to be seized.
Ruling: The court found paragraph (c) of the
search warrants lacking in particularity. It
simply calls for the seizure of all items bearing
the Microsoft logo. Neither does it limit the
seizure to products used in copyright
infringement or unfair competition.
Still, no provision of law exists which requires
that a warrant, partially defective in specifying
some items sought to be seized yet particular
with respect to the other items, should be
nullified as a whole.
Thus, a search warrant is severable; the items
not sufficiently described may be cut off without
destroying the whole warrant.
29.
May an item not embraced by a warrant be
seized? The answer to this question is found
in the cases of People v. Salanguit and Del
Rosario v. People. Supply an answer and a
summary of relevant facts leading to the
relevant ruling.
Only the articles particularly described in the
warrant may be seized.
People vs. Salanguit17 - Sr. Insp. Aguilar applied
for a warrant in the RTC to search for shabu in
the residence of accused-appellant Robert
Salanguit y Ko. After showing the search warrant
to the occupants, they found 12 small heat-
sealed plastic bags and a paper clip box
containing white crystalline substance, and 2
17 G.R. No. 133254-55, April 19, 2001.
 ARRESTS, SEARCHES AND SEIZURES (PART III: REQUISITES OF A VALID WARRANT) 19
bricks of dried leaves, which appeared to be
marijuana. The trial court found accused guilty
beyond reasonable doubt.
The search warrant authorized the seizure of
methamphetamine hydrochloride or shabu but
not marijuana. However, the seizure of the latter
is being justified on the grand that it was seized
within the “plain view” of the searching party.
This is contested by accused-appellant.
Issue: May an item not embraced by a
warrant be seized?
Ruling: Under the “plain view doctrine”,
unlawful objects within the “plain view” of an
officer who has the right to be in the position to
have that view are subject to seizure and may be
presented in evidence. For this to apply there
must be:
a. Prior justification
b. Inadvertent discovery of the evidence
c. Immediate apparent illegality of the
evidence before the police
It is assumed that the police found the packets of
shabu first. Once the valid portion of the search
warrant has been executed, the “plain view
doctrine” can no longer provide any basis for
admitting the other items subsequently found.
This doctrine may not be used to extend a
general exploratory search from one object to
another until something incriminating at last
emerges.
A search incident to a lawful arrest is limited to
the person of the one arrested and the premises
within his control. The police failed to allege the
time when the marijuana was found. Its
recovery, presumably after the shabu had been
recovered, was invalid.
Del Rosario v. People18 - Sometime in May 1996,
the police received a report that Vicente del
Rosario was in possession of certain firearms
18 G.R. No. 142295, May 31, 2001.
without the necessary licenses. P/Sr. Inspr.
Adique applied for a search warrant to enable his
team to search the house of appellant, in which
the judge issued. The search yielded a caliber .45
pistol, rifle and a revolver.
Petitioner submits that he had a license for the
.45 caliber firearm and ammunition, the other
firearms were either planted by the police or
illegally seized as they were not mentioned in the
search warrant.
Issue: May an item not embraced by a
warrant be seized?
Ruling: Section 2, Article III states that a search
and seizure must be carried out through or on
the strength of a judicial warrant, absent which
such search and seizure becomes
“unreasonable”.
The following are requisites for a search
warrant’s validity, the absence of one will cause
its downright nullification
1. It must be issued upon probable cause
2. The probable cause must be determined by
the judge himself
3. The judge must examine the complainant and
witnesses
4. The warrant issued must particularly
describe the place to be searched and
persons or things to be seized. Seizure is
limited to those items particularly described
in a valid search warrant. Evidence seized on
occasion of such an unreasonable search and
seizure is tainted and excluded for being
“fruit of a poisonous tree” – inadmissible in
evidence for any purpose.
ITCAB, the firearm was not found inadvertently
and in plain view. It was found as a result of a
meticulous search in the kitchen of petitioner’s
house. Hence, the seizure was illegal.
30.
How particular must the description of the
place/s to be searched be? The answer to this
 20 ARRESTS, SEARCHES AND SEIZURES (PART III: REQUISITES OF A VALID WARRANT)

question may be found in the following cases:
Retired SPO4 Bienvenido Laud v. People and
Paper Industries Corporation of the
Philippines v. Asuncion
Laud v. People19 - The Court 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”
the “Paper Industries Corporation of the
Philippines located at PICOP Compoound, Brgy,
Tabon, Bislig, Surigao del Sur. The compound,
however is made up of numerous
offices/buildings, powerplants, staff houses,
airstrip and warehouses. Obviously, the warrant
gives the police officers unbridled and thus
illegal authority to search all the structures
found inside the PICOP compound.
In People v. CA, this Court ruled that the place to
be searched cannot be changed, enlarged or
amplified by the police. Only the Judge may
properly do the particularization of the
description of the place to be searched, and only
in the warrant itself; it cannot be left to the
discretion of the police officers conducting the
search.

The search warrant 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, Brgy. Ma-a, Davao City.

Paper Industries Corporation of the

Philippines v. Asuncion20 - The Constitution and
the Rules limit the place to be searched only to
those described in the warrant. The requisite of
particularity is related to the probable cause
requirement in that, at least under some
circumstances, the lack of a more specific
description will make it apparent that there has
not been a sufficient showing to the magistrate
that the described items are to be found in a
particular place.

ITCAB, the assailed search warrant failed to

describe the place with particularity. It simply
authorizes a search of “the aforementioned
premises,” but it did not specify such premises.
The warrant identifies only one place, and that is

19 G.R. No. 199032, November 19, 2014.

20 G.R. No. 122092, May 19, 1999.