I.
The CA erred in finding that Ogayon had waived his right to question the legality of the search warrant.
II.
Even granting without admitting that Ogayon had already waived his right to question the legality of the search warrant, the search conducted was still highly irregular, thereby rendering the seized articles as inadmissible in evidence.
Ogayon primarily argues that there was a violation of his constitutional right to be secure in his person, house, papers, and effects against unreasonable searches and seizures. He denies waiving the right through his supposed failure to assail the search warrant’s validity during the trial. On the contrary, he claims to have objected to the prosecution’s formal offer of the search warrant.
Even assuming that he questioned the search warrant’s validity only during appeal, Ogayon contends that this should not be interpreted as a waiver of his right. Since an appeal in a criminal case throws the whole case open for review, any objection made on appeal, though not raised before the trial court, should still be considered.
Ogayon next argues that the search conducted by the police team on his premises, pursuant to an already defective search warrant, was highly irregular. He and his spouse were in their house when SPO4 Caritos allegedly discovered the shabu in the comfort room located outside their house, so they were not able to witness the search. Moreover, he claimed that there were other persons near the premises of his house (and the comfort room) when the search was conducted. Hence, it could not indubitably be concluded that the seized items were under his actual and effective control and possession.
The Court’s Ruling
The right against unreasonable searches and seizures is one of the fundamental constitutional rights. Section 2, Article III of the Constitution, reads:
Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. [emphasis ours]
This right has been included in our Constitution since 1899 through the Malolos Constitution20 and has been incorporated in the various organic laws governing the Philippines during the American colonization,21 the 1935 Constitution,22 and the 1973 Constitution.23
The protection afforded by the right is reinforced by its recognition as a fundamental human right under the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights,24 to both of which the Philippines is a signatory.25 Both the Covenant and the Declaration recognize a person’s right against arbitrary or unlawful interference with one’s privacy and property.26
Given the significance of this right, the courts must be vigilant in preventing its stealthy encroachment or gradual depreciation and ensure that the safeguards put in place for its protection are observed.
Under Section 2, Article III of the Constitution, the existence of probable cause for the issuance of a warrant is central to the right, and its existence largely depends on the finding of the judge conducting the examination.27 To substantiate a finding of probable cause, the Rules of Court specifically require that –
Rule 126, Sec. 5. Examination of complainant; record. – The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statem gether with the affidavits submitted. [emphasis ours]
Ogayon’s appeal of his conviction essentially rests on his claim that the search warrant was defective because "there was no transcript of stenographic notes of the proceedings in which the issuing judge had allegedly propounded the required searching questions and answers in order to determine the existence of probable cause."28 We find that the failure to attach to the records the depositions of the complainant and his witnesses and/or the transcript of the judge’s examination, though contrary to the Rules, does not by itself nullify the warrant. The requirement to attach is merely a procedural rule and not a component of the right. Rules of procedure or statutory requirements, however salutary they may be, cannot provide new constitutional requirements.29
Instead, what the Constitution requires is for the judge to conduct an "examination under oath or affirmation of the complainant and the witnesses he may produce," after which he determines the existence of probable cause for the issuance of the warrant. The examination requirement was originally a procedural rule found in Section 98 of General Order No. 58,30 but was elevated as part of the guarantee of the right under the 1935 Constitution.31 The intent was to ensure that a warrant is issued not merely on the basis of the affidavits of the complainant and his witnesses, but only after examination by the judge of the complainant and his witnesses. As the same examination requirement was adopted in the present Constitution, we declared that affidavits of the complainant and his witnesses are insufficient to establish the factual basis for probable cause.32 Personal examination by the judge of the applicant and his witnesses is indispensable, and the examination should be probing and exhaustive, notmerely routinary or a rehash of the affidavits.33
The Solicitor General argues that the lack of depositions and transcript does not necessarily indicate that no examination was made by the judge who issued the warrant in compliance with the constitutional requirement.
True, since in People v. Tee,34 we declared that –
[T]he purpose of the Rules in requiring depositions to be taken is to satisfy the examining magistrate as to the existence of probable cause.1âwphi1 The Bill of Rights does not make it an imperative necessity that depositions be attached to the records of an application for a search warrant. Hence, said omission is not necessarily fatal, for as long as there is evidence on the record showing what testimony was presented.35
Ideally, compliance with the examination requirement is shown by the depositions and the transcript. In their absence, however, a warrant may still be upheld if there is evidence in the records that the requisite examination was made and probable cause was based thereon. There must be, in the records, particular facts and circumstances that were considered by the judge as sufficient to make an independent evaluation of the existence of probable cause to justify the issuance of the search warrant.36
The Solicitor General claims that, notwithstanding the absence of depositions and transcripts, the records indicate an examination was conducted. In fact, a statement in the search warrant itself attests to this:
Search Warrant
x x x x
GREETINGS:
It appearing to the satisfaction of the undersigned after examination under oath of the applicant and his witnesses that there is probable cause to believe that respondent, without authority of law, has under his possession and control the following articles to wit:
---Methamphetamine Hydrochloride "Shabu" and paraphernalia which are kept and concealed in the premises of his house particularly in the kitchen and in the CR outside his house both encircled with a red ballpen, as described in the sketch attached to the Application for Search Warrant, located at Bgy. Iraya, Guinobatan, Albay.37 (emphasis and underscore ours)
Generally, a judge’s determination of probable cause for the issuance of a search warrant is accorded great deference by a reviewing court, so long as there was substantial basis for that determination.38 "Substantial basis means that the questions of the examining judge brought out such facts and circumstances as would lead a reasonably discreet and prudent man to believe that an offense has been committed, and the objects in connection with the offense sought to be seized are in the place sought to be searched."39
Apart from the statement in the search warrant itself, we find nothing in the records of this case indicating that the issuing judge personally and thoroughly examined the applicant and his witnesses. The absence of depositions and transcripts of the examination was already admitted; the application for the search warrant and the affidavits, although acknowledged by Ogayon himself,40 could not be found in the records. Unlike in Tee, where the testimony given during trial revealed that an extensive examination of the applicant’s witness was made by the judge issuing the warrant, the testimonies given during Ogayon’s trial made no reference to the application for the search warrant. SPO4 Caritos testified that he was among those who conducted the surveillance before the application for a search warrant was made. However, he was not the one who applied for the warrant; in fact, he testified that he did not know who applied for it.41
The records, therefore, bear no evidence from which we can infer that the requisite examination was made, and from which the factual basis for probable cause to issue the search warrant was derived. A search warrant must conform strictly to the constitutional requirements for its issuance; otherwise, it is void. Based on the lack of substantial evidence that the search warrant was issued after the requisite examination of the complainant and his witnesses was made, the Court declares Search Warrant No. AEK 29-2003 a nullity.
The nullity of the search warrant prevents the Court from considering Ogayon’s belated objections thereto.
The CA declared that Ogayon had waived the protection of his right against unreasonable searches and seizures due to his failure to make a timely objection against the search warrant’s validity before the trial court. It based its ruling on the procedural rule that any objections to the legality of the search warrant should be made during the trial of the case. Section 14, Rule 126 of the Rules of Court provides the manner to quash a search warrant or to suppress evidence obtained thereby:
Section 14. Motion to quash a search warrant or to suppress evidence; where to file. — A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued the search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court. [emphasis ours]
We find the CA’s casual treatment of a fundamental right distressing. It prioritized compliance with a procedural rule over compliance with the safeguards for a constitutional right. Procedural rules can neither diminish nor modify substantial rights;42 their non-compliance should therefore not serve to validate a warrant that was issued in disregard of the constitutional requirements. As mentioned, the existence of probable cause determined after examination by the judge of the complainant and his witnesses is central to the guarantee of Section 2, Article III of the Constitution. The ends of justice are better served if the supremacy of the constitutional right against unreasonable searches and seizures is preserved over technical rules of procedure.
Moreover, the courts should indulge every reasonable presumption against waiver of fundamental constitutional rights; we should not presume acquiescence in the loss of fundamental rights.43 In People v. Decierdo,44 the Court declared that "[w]henever a protection given by the Constitution is waived by the person entitled to that protection, the presumption is always against the waiver." The relinquishment of a constitutional right has to be laid out convincingly.
In this case, the only evidence that Ogayon waived his constitutional right was his failure to make a timely motion during the trial to quash the warrant and to suppress the presentation of the seized items as evidence. This failure alone, to our mind, is not a sufficient indication that Ogayon clearly, categorically, knowingly, and intelligently made a waiver.45 He cannot reasonably be expected to know the warrant’s defect for lack of data in the records suggesting that defect existed. It would thus be unfair to construe Ogayon’s failure to object as a waiver of his constitutional right. In People v. Bodoso,46 the Court noted that "[i]n criminal cases where life, liberty and property are all at stake… The standard of waiver requires that it ‘not only must be voluntary, but must be knowing, intelligent, and done with sufficient awareness of the relevant circumstances and likely consequences.’"
At this point, we note the purpose for the enactment of Section 14, Rule 126 of the Rules of Court – a relatively new provision incorporated in A.M. No. 00-5-03-SC or the Revised Rules of Criminal Procedure (effective December 1, 2000). The provision was derived from the policy guidelines laid down by the Court in Malaloan v. Court of Appeals47 to resolve the main issue of where motions to quash search warrants should be filed. In other words, the provision was "intended to resolve what is perceived as conflicting decisions on where to file a motion to quash a search warrant or to suppress evidence seized by virtue thereof…."48 It was certainly not intended to preclude belated objections against the search warrant’s validity, especially if the grounds therefor are not immediately apparent. Thus, Malaloan instructs that "all grounds and objections then available, existent or known shall be raised in the original or subsequent proceedings for the quashal of the warrant, otherwise they shall be deemed waived," and that "a motion to quash shall consequently be governed by the omnibus motion rule, provided, however, that objections not available, existent or known during the proceedings for the quashal of the warrant may be raised in the hearing of the motion to suppress."
A closer reading of the cases where the Court supposedly brushed aside belated objections would reveal that the objections were disregarded because they had been cured or addressed based on the records.
In Demaisip v. Court of Appeals,49 the accused asserted that the search warrant was never produced in court, thus suggesting its absence. The Court, however, noted that "there were supposed testimonies of its existence."
In People v. Tee,50 the accused claimed that the issuing judge failed to exhaustively examine the complainant and his witnesses, and that the complainant’s witness (a National Bureau of Intelligence operative) had no personal knowledge of the facts comprising probable cause, but the Court brushed these claims aside. It found that the witness’ knowledge of the facts supporting probable case was not based on hearsay as he himself assisted the accused in handling the contraband, and that the issuing judge extensively questioned this witness. In People v. Torres,51 the accused assailed the validity of the search conducted pursuant to a search warrant as it was supposedly made without the presence of at least two witnesses, but the Court found otherwise, citing the testimonies taken during the trial contradicting this claim. A similar objection was made by the accused in People v. Nuñez,52 but the Court noted the testimony of the officer conducting the search who stated that it was made in the presence of the accused himself and two barangay officials.
The rulings in Malaloan v. Court of Appeals,53 People v. Court of Appeals,54 and People v. Correa55 are without significance to the present case. As mentioned, Malaloan v. Court of Appeals involved the question of where motions to quash search warrants should be filed, and the guidelines set therein was applied in People v. Court of Appeals. People v. Correa, on the other hand, involved a warrantless search of a moving vehicle.
We reiterate that the requirement to raise objections against search warrants during trial is a procedural rule established by jurisprudence. Compliance or noncompliance with this requirement cannot in any way diminish the constitutional guarantee that a search warrant should be issued upon a finding of probable cause.1âwphi1 Ogayon’s failure to make a timely objection cannot serve to cure the inherent defect of the warrant. To uphold the validity of the void warrant would be to disregard one of the most fundamental rights guaranteed in our Constitution.
In the light of the nullity of Search Warrant No. AEK 29-2003, the search conducted on its authority is likewise null and void. Under the Constitution, any evidence obtained in violation of a person’s right against unreasonable searches and seizures shall be inadmissible for any purpose in any proceeding.56 With the inadmissibility of the drugs seized from Ogayon' s home, there is no more evidence to support his conviction. Thus, we see no reason to further discuss the other issues raised in this petition.
WHEREFORE, under these premises, the Decision dated March 31, 2009, and the Resolution dated July 10, 2009, of the Court of Appeals in CA-G.R. CR No. 31154 are REVERSED and SET ASIDE. Accordingly, the judgment of conviction, as stated in the joint judgment dated September 5, 2007, of the Regional Trial Court, Branch 12, Lig ity, Albay, in Criminal Case Nos. 4738 and 4739, is REVERSED and SET ASIDE, and petitioner HONESTO OGA YON y DIAZ is ACQUITTED of the criminal charges against him for violation of Republic Act No. 9165.
SO ORDERED."
G.R. No. 188794, September 2, 2015
HONESTO OGA YON y DIAZ, Petitioner,
vs.
PEOPLE OF THE PIDLIPPINES, Respondent.
https://lawphil.net/judjuris/juri2015/sep2015/gr_188794_2015.html
