Today, I am sharing my notes on one of the requisites of a valid search warrant: examination under oath or affirmation of the
applicant and his witnesses. I compiled most of these notes in the
course of my preparation for my Constitutional Law 2 class. I enriched them
after a family friend’s dwelling house was searched by agents of the Criminal Investigation
and Detection Group (CIDG) by virtue of a search warrant issued by an RTC judge
from another local government unit. (But that is another story better left for
another entry.)
The constitutional
and legal basis for the requirement
Sec. 2, Article III of the 1987 Constitution provides: “The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search warrant
or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.”
On the other hand, Sec. 5, Rule 126, The Revised Rules of Criminal Procedure states that “[t]he
judge must, before issuing a warrant, personally examine in the form of
searching questions and answers in writing and under oath the complainant and
the witnesses he may produce on facts personally known to them and attach to
the record their sworn statements, together with the affidavits submitted.”
The oath
required by the constitution refers to the truth of the facts within the
personal knowledge of the applicant or his witnesses because the 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. The true test of sufficiency of an affidavit to warrant issuance
of a search warrant is whether
it has been drawn in such a manner that perjury could be charged thereon and
the affiant could be held liable for damages caused. (Alvarez vs. CFI, G.R. No. L-45358, January 29, 1937).
Rule:
mere affidavits not sufficient, depositions must be taken
In applications for the issuance of search warrant, mere
affidavits of the complainant and his witnesses are not sufficient. The
examining judge has to take depositions in writing of the complainant and the
witnesses he may produce and 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. (Mata
vs. Bayona, G.R. No. L- 50720, March 26, 1984).
But absence
of deposition from the records of the case does not automatically mean lack of
probable case
The purpose of the Rules in requiring depositions to be
taken is to satisfy the examining magistrate as to the existence of probable
cause. The fact of the judge asking searching examination under oath of the
applicant and the witnesses is best proved by the depositions attached to the
records of the application for search warrant. Nevertheless, since the Bill of
Rights does not make it an imperative necessity that the said depositions be so
attached to the records, the absence of such depositions in the records is not
fatal where there is evidence on record that examination under oath was
nevertheless had. (People vs. Tee, G.
R. Nos. 140546-47, January 20, 2003.)
In People vs. Tee, supra, the accused-appellant contended
that the court failed to exhaustively examine the applicant and his witness
since their depositions were nowhere to be found in the records of the
application. The Court however held that such omission was not necessarily fatal since there was
evidence showing what testimony was presented during the application.
The Court found that the
same witness during the application for the assailed search warrant testified
during trial that during the application proceeding the judge required him to
confirm the contents of his affidavit
and that there were instances when the judge questioned him extensively.
The Court then presumed that the search warrant judge regularly performed
his function absent a showing to the contrary. The judge’s determination
of probable cause for the issuance of a search warrant in this case was paid
great deference by the Supreme Court since there was substantial basis for that
determination.
Form of
examination: searching questions
It is axiomatic that the examination conducted by the
judge must be probing and
exhaustive, not merely routinary or pro-forma, if the
claimed probable cause is to be established. The examining magistrate must not
simply rehash the contents of the affidavit but must make his own inquiry on
the intent and justification of the application. (Mata vs. Bayona, supra). The personal examination conducted by the judge must not
be merely routinary or pro
forma, but must be probing and exhaustive. (People vs. Tee, supra).
More than anything, it must be able to establish probable cause.
In Nolasco vs. Paño, G.R. No. L-69803, October 8, 1985, of the 8 questions asked by the judge, the 1st, 2nd
and 4th pertain to identity, the 3rd and 5th
were leading – not searching – questions, and the 6th, 7th
and 8th referred to the description of the personalities to be
seized (i.e., “Documents related to the
Communist Party of Philippines and New People's Army”; “Conference of the top
ranking officials from the National Democratic Front, Organization of the
Communist Party of the Philippines”; and “Other papers and documents like
Minutes of the Party Meetings, Plans of these groups, Programs, List of
possible supporters, subversive books and instructions, manuals not otherwise
available to the public and support money from foreign and local sources”).
The subject warrant was annulled since the examination conducted was general in
nature and merely repetitious of the deposition of the witness. Mere
generalization did not satisfy the requirement of probable cause upon which a
search warrant may issue.
In Roan vs. Gonzales, G.R. No. 71410, November
25, 1986, the
Court declared the deposition-taking so defective that it rendered the assailed
search warrant invalid. In this case, the depositions taken showed that they
were mainly a restatement
of the witnesses’ allegations in their affidavit, except that they were made in
the form of answers to the questions put to them by the respondent judge.
Significantly, the meaningful remark made by one of the witnesses that they
were suspicious of the petitioner because he was a follower of the opposition
candidate in the forthcoming election did not excite the respondent judge’s
suspicions. The respondent judge almost unquestioningly received the witnesses’
statement that they saw eight men deliver arms to the petitioner in his house.
This was supposedly done overtly, and the witness said he saw everything
through an open window of the house while he was near the gate. He could even
positively say that six of the weapons were .45 caliber pistols and two were
.38 caliber revolvers. The
Court wondered why it did not occur to the respondent judge to ask how the
witness could be so certain even as to the caliber of the guns, or how far he
was from the window, or whether it was on the first floor or a second floor, or
why his presence was not noticed at all, or if the acts related were really
done openly, in the full view of the witnesses, considering that these acts
were against the law. These would have been judicious questions but they
were injudiciously omitted. Instead, the declarations of the witnesses were
readily accepted and the search warrant sought was issued forthwith.
In Castro vs. Pabalan, G.R. No. L-28642, April 30, 1976, it was held that there the finding of the existence of probable
cause was invalid on account of the perfunctory manner by which the respondent
judge conducted the required examination under oath on the justification that
the applicant was a Sergeant of the PC with a long service behind him, and
because the respondent judge did not even bother to take the depositions of the
witnesses in writing.
Applicant
or his witnesses must have personal knowledge of the facts; Where only the
witness has personal knowledge, and not the applicant police officer, probable
cause may still be established
It is not mandatory to present affidavits of witnesses to
corroborate the applicant in cases where the latter has personal knowledge of
the facts. But when the knowledge of the facts of the applicant is merely
hearsay, it is the duty of the judge to require affidavits of other witnesses
so that he may determine whether probable cause exists. (Alvarez vs. CFI, supra). The
Constitution requires no less than personal knowledge by the complainant or his
witnesses of the facts upon which the issuance of a search warrant may be
justified. (Burgos vs. Chief of Staff, supra). Probable cause must be shown to be
within the personal knowledge of the complainant or the witnesses he may
produce and not based on mere hearsay. (Prudente vs. Dayrit, G.R. No. 82870 December 14, 1989).
In People
vs. Tee, supra, the appellant-accused contended that the evidence of
the NBI operative who applied for the search warrant was merely hearsay and
should not have been given credit since the latter did not have personal
knowledge of the facts. The Court rejected this thesis since the NBI operative’s witness
during the warrant application personally assisted accused-appellant in loading
and transporting the marijuana to the latter’s house and a separate rented room.
Definitely, the Court said, this indicated personal knowledge on the part of
the witness. Law enforcers cannot themselves be eyewitnesses to every crime;
they are allowed to present witnesses before an examining judge. In this case,
the witness personally saw and handled the marijuana. Hence, the NBI did not
rely on hearsay information in applying for a search warrant but on personal
knowledge of its witness.
In Burgos vs. Chief of Staff, supra, a statement in the joint affidavit
of the applicant’s witnesses “that the
evidence gathered and collated by our unit clearly shows that the premises
above-mentioned and the articles and things above-described were used and are
continuously being used for subversive activities in conspiracy with, and to
promote the objective of, illegal organizations” was held as is
insufficient for the purpose of determining probable cause for the issuance of
a search warrant since the
facts were not shown to be personally know to them.
In the old case of Alvarez vs. CFI, supra, the affidavit that served as the exclusive basis of the
search warrant stated that the applicant was informed by a person whom he
considered to be reliable that being kept in subject premises were books,
documents, receipts, lists, chits, and other papers used by the petitioner in
connection with his activities as a money-lender, charging a usurious rate of
interest in violation of the usury law. The Court declared the affidavit
insufficient and fatally defective by reason of the manner by which the oath
was made. The true test of sufficiency of an affidavit to warrant issuance of a
search warrant, the Court noted, is whether it has been drawn in such a manner
that perjury could be charged thereon and affiant be held liable for damages
caused. The search warrant in question and the seizure of the books, documents
and other papers were thus declared illegal.
Exception:
case where personal knowledge of the witness is not enough to establish
probable cause
In 20th Century Fox Film vs. CA, G.R.
Nos. 76649-51, August 19, 1988,
the NBI agents who acted as witnesses during the application for search warrant
did not have personal knowledge of the subject matter of their testimony, which
was the alleged commission of the offense of piracy by the private respondents.
Only the petitioner’s counsel who was also a witness during the application
stated that he had personal knowledge that the confiscated tapes owned by the
private respondents were pirated tapes taken from master tapes belonging to the
petitioner. The lower court later lifted the warrants, declaring that the
testimony of petitioner’s counsel did not have much credence because the master
tapes of the allegedly pirated tapes were not shown to the court during the
application. In sustaining the lower court’s lifting of the warrants, the
Supreme Court stated:
The presentation of
the master tapes of the copyrighted films from which the pirated films were
allegedly copied, was necessary for the validity of search warrants against
those who have in their possession the pirated films. The petitioner's argument
to the effect that the presentation of the master tapes at the time of
application may not be necessary as these would be merely evidentiary in nature
and not determinative of whether or not a probable cause exists to justify the
issuance of the search warrants is not meritorious. The court cannot presume
that duplicate or copied tapes were necessarily reproduced from master tapes
that it owns.
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