People vs. Ortiz

A search warrant may be served at night if the application asserts that the property is on the person or in the place to be searched, and the issuing judge so directs; 7:30 p.m. in a suburban Metro Manila subdivision is a reasonable hour for execution, and the witness-to-search rule is satisfied where, after a family member’s refusal to act as a witness, two disinterested witnesses of sufficient age and discretion residing in the same locality are procured.

On August 13, 1992, operatives of the Philippine National Police-Special Investigation Service Command (PNP-CISC) were conducting surveillance of suspected drug-pushing activities at the Regine Condominium in Makati City. Valentino “Toto” Ortiz was one of their targets. Upon spotting Ortiz alighting from his Cherokee jeep with a suspiciously bulging pants pocket, the officers accosted and frisked him, recovering an unlicensed .25 caliber pistol and later a sealed packet of shabu from the vehicle’s glove compartment. Ortiz was taken into custody. Later that day, the police applied for a search warrant to search his residence in Better Living Subdivision, Parañaque, based on depositions asserting that unlicensed firearms were kept there.

The Warrantless Search and Arrest in Makati: On August 13, 1992, PNP-CISC operatives conducting surveillance at Regine Condominium, Makati Avenue, Makati City, targeted Valentino “Toto” Ortiz for suspected drug-pushing. Observing Ortiz alight from his Cherokee jeep with a suspiciously bulging pants pocket, the officers immediately accosted him. A frisk yielded an unlicensed .25 caliber “Raven” automatic pistol (SN-930291) with one magazine and seven live rounds. A search of the vehicle’s glove compartment produced a sealed cellophane packet of methylamphetamine hydrochloride (“shabu”). Ortiz was taken into custody. The investigating state prosecutor later declared this warrantless search and seizure invalid for violating Ortiz’s constitutional right against unreasonable searches and seizures.

Application and Issuance of the Search Warrant: On the same date, the PNP-CISC applied for a search warrant for violation of P.D. 1866 before the MTC of Parañaque, Branch 77. The application was supported by the depositions of two police officers, who asserted personal knowledge that Ortiz was keeping unlicensed firearms at his residence at 148-D Peru Street, Better Living Subdivision, Parañaque: a Baby armalite M-16, a 12-gauge shotgun, a 9mm pistol, a .45 caliber pistol, and corresponding ammunition. The MTC judge issued Search Warrant No. 92-94, commanding the PNP officers “to make an immediate search at any reasonable hour of the day or night of the house/s, closed receptacles and premises above-described and forthwith seize and take possession” of the enumerated personal property.

Execution of the Search Warrant: Armed with the warrant, a PNP-CISC Special Investigation Group team, accompanied by a representative of the MTC judge and a barangay security officer, proceeded to the Parañaque residence at about 7:30 p.m. that same evening. Private respondent’s wife and their child’s nanny were present, but neither consented to be a witness to the search. The search resulted in the seizure of the following unlicensed firearms and ammunition:

• One 9mm pistol (SN-1928923)
• One M16 Rifle (Baby Armalite, SN-9015620)
• One 12-gauge shotgun (SN-K593449)
• Six live shotgun ammunition
• One hundred eighteen live 9mm ammunition
• Sixteen live M16 ammunition
• Thirty live .45 caliber ammunition
• One 9mm magazine
• One short M16 magazine

Private respondent’s wife signed a receipt for the seized items. On August 17, 1992, a return of the search warrant was executed and filed by the police with the issuing court.

Post-Search Proceedings: At the preliminary investigation, the prosecutor found the Parañaque search valid. On August 25, 1992, Ortiz was charged in the RTC of Makati with illegal possession of firearms under P.D. 1866. He moved for reinvestigation, arguing that the invalidity of the Makati search should also apply to the Parañaque search; the trial court denied the motion. On November 23, 1992, Ortiz moved to quash the search warrant on the grounds that (1) he was not present during the search as he was detained at Camp Crame, (2) the search warrant was not shown to his wife, and (3) the search was conducted in violation of the witness-to-search rule. The trial court denied the motion to quash for lack of merit.

Ruling of the Court of Appeals: The appellate court granted Ortiz’s petition for certiorari and prohibition, setting aside the RTC order and declaring the seized firearms and ammunition inadmissible. The Court of Appeals found the nighttime search unreasonable, causing “inconvenience” to the occupants, and applied the doctrine in Asian Surety & Insurance Co. v. Herrera, 54 SCRA 312 (1973), which invalidated a nighttime search where the warrant did not specify the time for execution. It also considered the witness-to-search rule violated.

• Reasonableness of Nighttime Search: Petitioner maintained that Asian Surety was inapplicable because the search warrant expressly directed that the search could be made “at any reasonable hour of the day or night,” satisfying Section 8, Rule 126. Petitioner contended that 7:30 p.m. is a reasonable time to execute a warrant in a Metro Manila suburban subdivision where residents are still awake and active, and that the Court of Appeals resorted to conjecture in finding inconvenience.

• Compliance with the Witness-to-Search Rule: Petitioner argued that the police officers complied with Section 7, Rule 126. After private respondent’s wife and maid refused, the searchers legitimately availed of two witnesses of sufficient age and discretion residing in the same locality — the bailiff of the Parañaque court and a barangay security officer. The wife’s execution of a receipt for the seized property and the “Certification of Orderly Search” attested to the regularity of the search.

• Existence of a Proper Return: Petitioner disputed the appellate court’s finding that no return was prepared, pointing to the return of search warrant executed and filed by the police on August 17, 1992.

• Unreasonableness of the Nighttime Search: Respondent, echoing the Court of Appeals’ reasoning, contended that executing the search warrant at 7:30 p.m. caused unnecessary inconvenience to the household and was unreasonable under the circumstances. He relied on the doctrine in Asian Surety & Insurance Co. v. Herrera, arguing that the warrant failed to fix a specific time and that the nighttime intrusion violated his right against unreasonable searches.

• Violation of the Witness-to-Search Rule: Respondent argued that the search was invalid because it was conducted in his absence, the warrant was not shown to his wife, and no member of his household consented to act as a witness, violating the mandatory requirement of Section 7, Rule 126.

• Nighttime Search: Whether the search conducted at 7:30 p.m. pursuant to a warrant authorizing service “at any reasonable hour of the day or night” was unreasonable and thus rendered the seized items inadmissible.
• Witness-to-Search Rule: Whether the police officers violated Section 7, Rule 126 of the Rules of Court when they conducted the search in the presence of two disinterested local witnesses after the lawful occupant’s wife refused to be a witness.

• Nighttime Search: The nighttime search was valid. Under Section 8, Rule 126, a search warrant must direct service in the daytime, unless the application asserts that the property is on the person or in the place ordered to be searched, in which case a direction for service at any time of the day or night may be inserted. The issuing judge relied on the positive assertions of the applicants that the firearms were kept at Ortiz’s residence; thus, no abuse of discretion attended the authorization for a nighttime search. As to reasonableness, 7:30 p.m. in a suburban Metro Manila subdivision is an hour when residents are still up and about. The policy behind the prohibition of nighttime searches is to protect the public from abrupt, abrasive intrusions while sleeping. There was no showing that the search at that hour caused an “abrupt intrusion upon sleeping residents in the dark” or prejudiced the family. The Court of Appeals’ finding of inconvenience was based on surmises. Moreover, no exact time limit can be imposed on the duration of a search. Thus, the warrant’s execution did not violate Section 8, Rule 126.

• Witness-to-Search Rule: The police complied with the witness-to-search requirement. Section 7, Rule 126 mandates that a search of a house be made in the presence of the lawful occupant or any member of the family; in their absence, in the presence of two witnesses of sufficient age and discretion residing in the same locality. Here, private respondent’s wife was present but unjustifiably refused to act as a witness. Her refusal could not frustrate the execution of a lawful warrant. The PNP-CISC team then secured two witnesses of sufficient age and discretion — the bailiff of the Parañaque court and a barangay security officer — who resided in the same locality. This satisfied the rule’s alternative requirement. The wife’s signing of the receipt for the seized property further attested to the orderly conduct of the search. Accordingly, no violation of Section 7 occurred.

• Nighttime Search Exception under Rule 126, Section 8 — The general rule is that search warrants must be served during the daytime. By way of exception, a search warrant may direct service “at any time of the day or night” when the application positively asserts that the property is on the person or in the place ordered to be searched, and the issuing judge is satisfied. The issuance of a warrant with such a direction rests on the exercise of judicial discretion, and absent a showing of abuse, a nighttime search conducted thereunder is not improper. The prohibition against nighttime searches serves to protect the public from the abrasiveness of official intrusions and is primarily directed at preventing abrupt intrusions upon sleeping residents in the dark. A search that begins at 7:30 p.m. in a suburban subdivision in Metro Manila does not, without more, constitute an unreasonable intrusion.

• Witness-to-Search Rule under Rule 126, Section 7 — No search of a house, room, or any other premise shall be made except in the presence of the lawful occupant thereof or any member of his family; or in the latter’s absence, in the presence of two witnesses of sufficient age and discretion residing in the same locality. The refusal of a family member to act as a witness cannot frustrate a lawful search so long as the searching officers secure two disinterested local witnesses who satisfy the alternative requirement.

• Discretion in Fixing Search Time — The exact time of execution of a warrant is left to the discretion of law enforcement officers, and judicial notice may be taken of the realities of law enforcement and the prevailing conditions in the place to be searched. No precise time limit can be placed on the duration of a search.

• “The policy behind the prohibition of nighttime searches in the absence of specific judicial authorization is to protect the public from the abrasiveness of official intrusions. A nighttime search is a serious violation of privacy. In the instant case, there is no showing that the search which began at 7:30 P.M. caused an ‘abrupt intrusion upon sleeping residents in the dark’ or that it caused private respondent’s family such prejudice as to make the execution of the warrant a voidable act.”

• “To hold otherwise would allow lawful searches to be frustrated by the mere refusal of those required by law to be witnesses.”

• “We take judicial notice that 7:30 P.M. in a suburban subdivision in Metro Manila is an hour at which the residents are still up-and-about. To hold said hour as an unreasonable time to serve a warrant would not only hamper law enforcement, but could also lead to absurd results, enabling criminals to conceal their illegal activities by pursuing such activities only at night.”

• Asian Surety & Insurance Co. v. Herrera, 54 SCRA 312 (1973) — Distinguished. In that case, a nighttime search was invalidated because the warrant did not specify the time during which it was to be made. In the present case, the warrant expressly authorized search at any reasonable hour of the day or night.
• Simmons v. State, 286 P.2d 296 — Cited to support the rule that the issuance of a search warrant allows for the exercise of judicial discretion in fixing the time of service, subject to the statutory maximum period for execution.
• State v. Moreno, 222 Kan 149, 563 P.2d 1056 — Cited for the principle that the exact time of execution of a warrant is left to the discretion of law enforcement officers.
• United States v. Plemmons, 336 F.2d 731 — Relied upon for the proposition that holding a particular hour unreasonably could lead to absurd results and enable criminals to hide illegal activities at night.
• State v. Williams, 169 Conn 322, 363 A.2d 72 — Cited for the rule that no exact time limit can be placed on the duration of a search.

• Section 8, Rule 126, Rules of Court (Time of making search) — “The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night.” Applied to uphold the MTC judge’s discretion in authorizing a nighttime search based on the applicants’ positive assertion that the unlicensed firearms were at Ortiz’s residence.
• Section 7, Rule 126, Rules of Court (Search of house, room, or premise to be made in presence of two witnesses) — “No search of a house, room, or any other premise shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, in the presence of two witnesses of sufficient age and discretion residing in the same locality.” Applied to validate the search where the wife refused to be a witness and the police procured two disinterested local witnesses.
• Administrative Circular No. 13 (October 1, 1985) — Reiterates that search warrants must direct daytime service, but if the judge is satisfied that the property is on the person or premises, a direction for service at any time of the day or night may be inserted. The warrant here complied with this circular.

Bellosillo, J. (Chairman), Mendoza, J., Buena, J., De Leon, Jr., J.