People of the Philippines vs. Benhur Mamaril

A search warrant is invalid, and the articles seized under it are inadmissible in evidence, where the records do not show that the issuing judge reduced to writing, in the form of searching questions and answers, his examination under oath of the complainant and the witnesses he may produce, and attached the same to the record; the requirement is mandatory, and its omission cannot be supplied by the recital in the warrant that such examination was conducted, nor excused by the disarray of the court's records.

Benhur Mamaril was charged with possession of marijuana under Section 8 of Republic Act No. 6425, as amended by Republic Act No. 7659, following a search of the family residence of his parents at Ramos Street, Poblacion, Lingayen, Pangasinan, conducted by elements of the Lingayen Police Station under Search Warrant No. 99-51 issued by then Executive Judge Eugenio G. Ramos. The warrant had been applied for by SPO2 Chito S. Esmenda of the Intelligence Section, PNCO, Lingayen Police Station. The case turns on the constitutional and procedural requisites for the issuance of a search warrant under Article III, Section 2 of the 1987 Constitution and Sections 4 and 5 of Rule 126 of the Rules of Court.

Benhur Mamaril, a 31-year-old single laborer, was charged before the Regional Trial Court of Lingayen, Pangasinan, Branch 39, with violation of Section 8 of Republic Act No. 6425, as amended by Republic Act No. 7659. The Information alleged that on or about February 1, 1999 and sometime prior thereto, in the municipality of Lingayen, Pangasinan, he willfully, unlawfully and criminally kept and possessed crushed marijuana leaves contained in seventy-eight (78) sachets with a total weight of 236.83 grams and two (2) bricks of marijuana fruiting tops weighing 800 grams each, or a total weight of 1,836.83 grams, without authority to possess the same. The charge arose from a search conducted at the family residence of appellant's parents at Ramos Street, Poblacion, Lingayen, Pangasinan, under Search Warrant No. 99-51, which had been issued on January 25, 1999 by then Executive Judge Eugenio G. Ramos upon the application of SPO2 Chito S. Esmenda of the Intelligence Section, PNCO, Lingayen Police Station.

At the pre-trial conference, the parties admitted that the search was made in the house and premises of the parents of the accused, where he also lived, on February 1, 1999 at about 2:30 o'clock in the afternoon; that the search was conducted by elements of the PNP, particularly SPO4 Faustino Ferrer, SPO1 Alfredo Rico and others, who brought along a camera; that the accused was in the balcony of the house when it was searched; that a physical science report, No. (DT-077-99), had been issued by the PNP Crime Laboratory through Chemist Theresa Ann Bugayong Cid; and that the accused was subjected to a urine sample laboratory test on February 2, 1999. At about 2:30 p.m. on February 1, 1999, the Chief of Police of the Lingayen Police Station, together with SPO3 Alfredo Rico, SPO4 Faustino Ferrer, Jr. and other police officers, implemented the warrant. They found appellant's mother under the house and, upon asking where appellant was, were told that he was upstairs. When the officers went up, appellant was coming out of a room; upon seeing them he turned back and tried to run toward the back door, but stopped when SPO3 Rico told him to do so. SPO3 Rico informed him that they had a search warrant, which they showed to appellant and his mother; appellant looked at the warrant and said nothing. The search was witnessed by two members of the barangay council, Barangay Kagawad Leonardo Ramos and Barangay Tanod Valentino Quintos, whom the police had brought with them.

The searching team confiscated (a) fifty-five heat-sealed plastic sachets containing suspected marijuana leaves found in a buri bag under the house; (b) three heat-sealed plastic sachets containing suspected marijuana leaves and seeds contained in an eye-glass case; (c) twenty-two heat-sealed plastic sachets containing suspected marijuana leaves and seeds taken under a pillow placed on a monobloc chair; and (d) two bricks of suspected marijuana contained inside a white and gray bag found inside the closet of appellant's room. SPO3 Rico took photographs of the confiscated items and prepared a receipt of the property seized, while SPO4 Ferrer prepared a certification that the house had been properly searched, which was signed by appellant and the barangay officials who witnessed the search. Appellant and the confiscated articles were then brought to the Lingayen Police Station and turned over to the desk officer.

The following day, February 2, 1999, police officers Alfredo Rico, Alberto Santiago and Rodolfo Madrid brought the confiscated articles to the Crime Laboratory at Camp Florendo, San Fernando, La Union for examination, and appellant was likewise brought there for a drug test. Police Superintendent Ma. Theresa Ann Bugayong Cid, forensic chemist and head of the PNP Crime Laboratory, Regional Office I, testified that she received from the Chief of Police of Lingayen a request for a drug test on appellant and a laboratory examination of the confiscated specimens; that after weighing and testing the specimens she issued a report finding them positive for the presence of marijuana; and that the examination of appellant's urine sample was positive for methamphetamine hydrochloride, known as shabu.

For his part, appellant denied residing at his parents' house at Ramos Street since he had been renting a house at Barangay Matic-matic, Sta. Barbara, Pangasinan since December 18, 1998, and claimed that on February 1, 1999 it was his brother and the latter's family who were residing with his mother there, although they were at the fishpond on that day. He testified that he was at his parents' house on that date because he and his live-in partner had visited his mother, arriving at 10:00 a.m.; that at about 2:00 p.m., while he was at the back of the house, seven to nine policemen in civilian clothes arrived, asked him to go upstairs, immediately handcuffed him and brought him to the balcony, where he stayed until the search was finished after more than thirty minutes; and that he was thereafter brought to the clinic of one Dr. Felix for a medical examination and then to the municipal hall. He claimed that he saw the buri bag, the eye-glass case and the gray and white bag containing suspected marijuana for the first time on the day of the search while he was at the balcony, and that he saw the Receipt of Property Seized for the first time only while he was testifying in court, although he admitted that the signature on the certification that the house was properly searched was his. He insinuated that the confiscated items had been planted because he had a misunderstanding with some policemen in Lingayen, but he admitted that the policemen who searched his parents' house did not threaten or harm him in any way and that he had no misunderstanding with SPO3 Alfredo Rico.

At the trial, Atty. Enrico O. Castillo, Branch Clerk of Court of RTC-Branch 39, Lingayen, Pangasinan, testified on the records of Search Warrant No. 99-51 kept in the trial court. He presented only the application for the search warrant, the supporting affidavits of PO3 Alberto Santiago and Diosdado Fernandez, and the return of the search warrant. No transcript of the searching questions and answers taken by Executive Judge Ramos could be produced. Mrs. Liberata Ariston, then legal researcher and at the same time OIC-Branch Clerk of Court, who was supposed to have custody of any such transcript, was in the United States of America; her daughter, court stenographer Catherine Ramirez, was asked about the transcript but it had not been found; based on the records there were no stenographic notes; and although the branch personnel tried their best to locate the transcript, they could not find it.

After the prosecution formally offered its testimonial and documentary exhibits on March 5, 2000, appellant, through counsel, filed a motion with memorandum contending that the exhibits were inadmissible under Sections 2 and 3(2) of Article III of the 1987 Constitution because the search warrant by virtue of which they were seized had been illegally issued and illegally or improperly implemented; the trial court denied the motion. The records before the trial court contained no written record of the searching questions and answers taken from the applicant and his witnesses.

• Illegal Issuance of the Search Warrant: Appellant contended that Search Warrant No. 99-51 was illegally issued because there was no evidence showing that the required searching questions and answers were made on the application for the warrant; he pointed out that Branch Clerk of Court Enrico O. Castillo testified that, based on the records, there was no transcript of stenographic notes of the proceedings in connection with the application, in violation of Section 2, Article III of the Constitution and Section 5, Rule 126 of the Rules of Court.
• Inadmissibility of the Receipt and Certification: Appellant argued that the inventoried articles in the Receipt of Seized Property and the corresponding certification (Exhibits "J" and "I") should be declared totally inadmissible since he was not assisted by counsel when he signed the same.
• Insufficiency of the Evidence: Appellant maintained that the trial court erred in convicting him of the crime charged despite the fact that his guilt was not proven beyond reasonable doubt, and prayed for acquittal on the ground that the search warrant was illegally issued.

• Presumption of Regularity and the Recital in the Warrant: The Solicitor General argued that the issuing judge examined under oath, in the form of searching questions and answers, the applicant SPO2 Chito S. Esmenda and his witnesses on January 25, 1999, as stated in Search Warrant No. 99-51 itself.
• Loss of the Stenographic Notes: The Solicitor General asserted that the subject stenographic notes could not be found at the time Branch Clerk of Court Enrico Castillo testified before the trial court because of the confused state of the records in the latter's branch when he assumed office.
• Waiver of the Right to Question the Search: The Solicitor General argued that appellant was deemed to have waived his right to question the legality of the search because he did not protest against it and even admitted during his testimony that he was neither threatened nor maltreated by the policemen who searched their residence.

• Validity of Search Warrant No. 99-51: Whether Search Warrant No. 99-51 was illegally issued for failure of the records to show that the issuing judge examined the complainant and his witnesses in writing, in the form of searching questions and answers, as required by Section 2, Article III of the 1987 Constitution and Section 5, Rule 126 of the Rules of Court.
• Waiver of the Right to Contest the Search: Whether appellant waived his right to question the legality of the search by failing to protest against it at the time it was conducted.
• Admissibility of the Seized Evidence and Sufficiency of the Conviction: Whether the articles seized under the invalid warrant were inadmissible in evidence and whether, without them, the conviction of appellant can be sustained.
• Admissibility of the Receipt of Seized Property and the Certification: Whether the inventoried articles in the Receipt of Seized Property and the corresponding certification should be declared inadmissible because appellant was not assisted by counsel when he signed them.

• Validity of Search Warrant No. 99-51: No. The warrant is invalid, the records failing to show that the issuing judge reduced to writing, in the form of searching questions and answers, his examination under oath of the complainant and the witnesses he may produce, as mandated by Section 5, Rule 126 of the Rules of Court.
• Waiver of the Right to Contest the Search: No. Waiver of a fundamental constitutional right is not presumed and requires knowledge of the right and an actual intention to relinquish it; appellant's silence when the warrant was shown to him was not consent, and he seasonably objected on constitutional grounds at the trial.
• Admissibility of the Seized Evidence and Sufficiency of the Conviction: No. Evidence obtained under an invalid search warrant is inadmissible for any purpose under Article III, Section 3(2) of the Constitution, and without it there is no sufficient basis to sustain the conviction.
• Admissibility of the Receipt of Seized Property and the Certification: Not reached. The Court found it unnecessary to discuss the other issues raised by appellant in seeking to exclude the evidence seized pursuant to the illegal warrant.

• Validity of Search Warrant No. 99-51: The right against unreasonable searches and seizures under Article III, Section 2 of the Constitution guarantees 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. Rule 126, Section 4 restates the requisites for issuing a search warrant, while Rule 126, Section 5 commands that 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. Probable cause for a search consists of such facts and circumstances as 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. In determining its existence, three requirements must concur: (1) the judge must examine the complainant and his witnesses personally; (2) the examination must be under oath; and (3) the examination must be reduced in writing in the form of searching questions and answers. Branch Clerk of Court Enrico O. Castillo, who testified on the available records of Search Warrant No. 99-51, produced only the application for the search warrant and the supporting affidavits of PO3 Alberto Santiago and Diosdado Fernandez; he could not produce the sworn statements of the complainant and his witnesses showing that the judge had examined them in the form of searching questions and answers in writing. He testified that, based on the records, there was no transcript of stenographic notes, that he had asked Catherine Ramirez, daughter of then OIC Mrs. Liberata Ariston, several times about the transcript, and that although the branch personnel tried their best to locate it, they could not find it. On this record, the prosecution failed to prove that Executive Judge Ramos put into writing his examination of the applicant and his witnesses before issuing the warrant. Mere affidavits of the complainant and his witnesses are not sufficient; the examining judge must take the depositions in writing of the complainant and the witnesses he may produce and attach them to the record, so that he may properly determine the existence or non-existence of probable cause and so that the person giving the deposition may be held liable for perjury should his declarations later prove false. The assertion in Search Warrant No. 99-51 that the judge examined the applicant and his witnesses in the form of searching questions and answers cannot supply the deficiency, for although such an examination may in fact have taken place, there is no evidence that it was put into writing as required by law; had it been, the depositions would have been attached to the record together with the affidavits. The Solicitor General's explanation that the stenographic notes could not be found because of the confused state of the branch records when the clerk assumed office was untenable. The warrant is therefore tainted with illegality by the failure of the judge to conform with the essential requisites of taking the depositions in writing and attaching them to the record.
• Waiver of the Right to Contest the Search: The waiver theory advanced by the Solicitor General rested on cases involving a warrantless search; here, the police authorities presented a search warrant to appellant before his residence was searched. At that time, appellant could not determine whether the search warrant had been issued in accordance with law; it was only during the trial that he, through counsel, had reason to believe that the warrant had been illegally issued, prompting him to file a motion with memorandum objecting to the admissibility of the evidence formally offered by the prosecution. To constitute a waiver, it must first appear that the right exists; second, that the person involved had knowledge, actual or constructive, of the existence of such right; and third, that said person had an actual intention to relinquish the right. The fact that the accused failed to object to the entry into his house does not amount to permission to make a search therein, and a peaceful submission to a search or seizure is not consent or an invitation thereto but merely a demonstration of regard for the supremacy of the law. Courts indulge every reasonable presumption against waiver of fundamental constitutional rights and do not presume acquiescence in their loss. Appellant's silence when the policemen showed him the search warrant was thus construed as a demonstration of regard for the supremacy of the law, and since he seasonably objected on constitutional grounds to the admissibility of the evidence seized pursuant to the warrant after the prosecution had formally offered its evidence, no intent to waive his rights could reasonably be inferred from his conduct before or during the trial.
• Admissibility of the Seized Evidence and Sufficiency of the Conviction: Under Article III, Section 3(2) of the Constitution, any evidence obtained in violation of the preceding section shall be inadmissible for any purpose in any proceeding. No matter how incriminating the articles taken from appellant may be, their seizure cannot validate an invalid warrant; nothing can justify the issuance of a search warrant but the fulfillment of the legal requisites. In issuing a search warrant, the judge must strictly comply with the requirements of the Constitution and the statutory provisions, and a liberal construction should be given in favor of the individual to prevent stealthy encroachment upon, or gradual depreciation of, the rights secured by the Constitution; no presumption of regularity may be invoked in aid of the process when an officer undertakes to justify it. Because the requirement that the examination of the complainant and his witnesses be under oath and reduced to writing in the form of searching questions and answers was not complied with, the search warrant is invalid and the evidence seized pursuant thereto cannot be used against appellant. Without the illegally obtained evidence, there is no sufficient basis to sustain the conviction.
• Admissibility of the Receipt of Seized Property and the Certification: The Court found it unnecessary to discuss the other issues raised by appellant in seeking to exclude the evidence seized pursuant to the illegal search warrant, the invalidity of the warrant and the consequent inadmissibility of the seized articles being already dispositive of the appeal.

• Requisites for the Issuance of a Search Warrant — A search warrant issues only upon probable cause 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. In determining probable cause, three requirements must concur: (1) the judge must examine the complainant and his witnesses personally; (2) the examination must be under oath; and (3) the examination must be reduced to writing in the form of searching questions and answers. The Court applied this test and found the third requisite absent, the records containing only the application and the supporting affidavits, thereby rendering Search Warrant No. 99-51 invalid.
• Sufficiency of Affidavits; Necessity of Written Depositions — Mere affidavits of the complainant and his witnesses are not sufficient; the examining judge must take the depositions in writing of the complainant and the witnesses he may produce and attach them to the record, so that he may properly determine the existence or non-existence of probable cause and so that the deponent may be held liable for perjury should his declarations later prove false. The Court relied on this rule in holding that the absence of the written depositions from the records defeated the presumption that the judge complied with the law.
• Probable Cause for a Search — Such facts and circumstances as 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. Because the written record of the judge's examination was missing, the finding of probable cause could not be verified and the warrant could not stand.
• Exclusionary Rule — Any evidence obtained in violation of the right against unreasonable searches and seizures is inadmissible for any purpose in any proceeding. The Court applied the rule to exclude the marijuana specimens seized under the invalid warrant and held that, without them, the conviction could not be sustained.
• Waiver of Constitutional Rights — Waiver is not presumed; to constitute a waiver it must appear (1) that the right exists, (2) that the person involved had actual or constructive knowledge of its existence, and (3) that he had an actual intention to relinquish it. Peaceful submission to a search or seizure is not consent, and courts indulge every reasonable presumption against waiver of fundamental constitutional rights. The Court applied the doctrine in rejecting the Solicitor General's argument that appellant's silence when shown the warrant amounted to waiver.
• Strict Compliance and No Presumption of Regularity in Search Warrant Proceedings — The judge must strictly comply with the constitutional and statutory requirements for issuing a search warrant, and a liberal construction is given in favor of the individual to prevent stealthy encroachment upon, or gradual depreciation of, the rights secured by the Constitution; no presumption of regularity may be invoked in aid of the process when an officer undertakes to justify it. The Court applied this principle in refusing to accept the recital in the warrant as proof that the searching questions and answers had been reduced to writing.

• "Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take depositions in writing of the complainant and the witnesses he may produce and to attach them to the record. Such written deposition is necessary in order that the Judge may be able to properly determine the existence or non-existence of the probable cause, to hold liable for perjury the person giving it if it will be found later that his declarations are false." — Quoted from Mata vs. Bayona and made the analytical core of the decision; it supplies the standard against which the prosecution's failure to produce the written depositions was measured.
• "We, therefore, hold that the search warrant is tainted with illegality by the failure of the Judge to conform with the essential requisites of taking the depositions in writing and attaching them to the record, rendering the search warrant invalid." — The ratio decidendi of the case, stating the precise ground on which Search Warrant No. 99-51 was struck down.
• "No matter how incriminating the articles taken from the appellant may be, their seizure cannot validate an invalid warrant." — The Court's articulation of the exclusionary consequence of an invalid warrant, foreclosing any argument that the probative weight of the seized drugs could cure the defect in the warrant.
• "To constitute a waiver, it must appear first that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such a right; and lastly, that said person had an actual intention to relinquish the right." — The canonical three-part test for waiver of a constitutional right, applied to reject the Solicitor General's claim that appellant had waived his right to contest the search.

• Mata vs. Bayona, 128 SCRA 388 (1984) — Controlling precedent, twice quoted by the Court; it established that mere affidavits are insufficient and that the examining judge must take depositions in writing and attach them to the record, and it supplied the passage on strict compliance and the unavailability of any presumption of regularity in aid of the warrant process.
• Pendon vs. Court of Appeals, 191 SCRA 429 (1990) — Cited for the definition of probable cause for a search and for the three requisites of personal examination, examination under oath, and reduction of the examination to writing in the form of searching questions and answers.
• People vs. Burgos, 144 SCRA 1 (1986) — Followed on the non-waiver of the right against unreasonable searches; the Court adopted its holding that failure to object to the entry into one's house does not amount to permission to search, and its citation of the rule that courts indulge every reasonable presumption against waiver of fundamental constitutional rights.
• Pasion Vda. de Garcia vs. Locsin, 65 Phil. 689 — Quoted in People vs. Burgos for the proposition that peaceful submission to a search or seizure is not consent or an invitation thereto but merely a demonstration of regard for the supremacy of the law.
• Johnson vs. Zerbst, 304 U.S. 458 — Cited for the rule that courts indulge every reasonable presumption against waiver of fundamental constitutional rights and do not presume acquiescence in their loss.
• People vs. Montilla, 285 SCRA 703 (1998) and People vs. Aruta, 288 SCRA 626 (1998) — Cited by the Solicitor General on waiver; distinguished by the Court on the ground that both involved a warrantless search, unlike the present case where a search warrant was presented to appellant before the search.
• Marinas vs. Sioco, 104 SCRA 403 (1981) and Ponsica vs. Ignalaga, 152 SCRA 647 (1987) — Cited in the definition of probable cause for a search.
• Asian Surety & Insurance Co., Inc. vs. Herrera — Quoted in Mata vs. Bayona for the principle that the power to search and seize, though necessary to the public welfare, must be exercised without transgressing the constitutional rights of citizens.
• Demaisip vs. Court of Appeals, 193 SCRA 373 (1991) — Cited in support of the timeliness of appellant's constitutional objection to the admissibility of the seized evidence.

• Article III, Section 2, 1987 Constitution — Guarantees the right of the people to be secure against unreasonable searches and seizures and 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. The Court used this provision as the primary standard against which the issuance of Search Warrant No. 99-51 was measured.
• Article III, Section 3(2), 1987 Constitution — Provides that any evidence obtained in violation of the preceding section shall be inadmissible for any purpose in any proceeding. Applied to exclude the marijuana specimens seized under the invalid warrant, leaving no sufficient basis for the conviction.
• Section 4, Rule 126, Rules of Court — Restates the requisites for issuing a search warrant, requiring 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 a particular description of the place to be searched and the things to be seized. Cited as the procedural implementation of the constitutional guarantee.
• Section 5, Rule 126, Rules of Court — Requires the judge, before issuing the warrant, to 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 to attach to the record their sworn statements together with the affidavits submitted. The failure to comply with this provision was the decisive ground for invalidating the warrant.
• Section 8, Republic Act No. 6425, as amended by Republic Act No. 7659 — Defines and penalizes the possession or use of prohibited drugs, imposing the penalty of reclusion perpetua to death and a fine ranging from Five Hundred Thousand Pesos to Ten Million Pesos. This was the offense charged in the Information and the provision under which appellant was convicted by the trial court.
• Article 29, Revised Penal Code — Provides for the credit of preventive imprisonment in the service of the sentence; the trial court directed that the period of preventive imprisonment suffered by the accused be credited in full.
• Section 36, Rule 132, Rules of Court — Cited in connection with the offer of evidence and the timeliness of appellant's objection to the admissibility of the prosecution's exhibits.

Davide, Jr., C.J. (Chairman), Panganiban, Ynares-Santiago, and Carpio, JJ., concur.