G.R. No. 144639. September 12, 2003 People vs. Go, 411 SCRA 81

G.R. No. 144639.  September 12, 2003



The police officers conducted a test buy operation at the residence of the accused where they bought P1,500.00 worth of shabu but they did not arrest the accused at that time. Instead, they applied for a search warrant based on their firm belief that there was a large quantity of illegal drugs in his house. When they arrived at the residence of the accused, they “sideswept a car of the accused parked outside his house. When the son opened their gate and went out, the police officers introduced themselves, informed him that they had a search warrant entered the house and handcuffed the son of the accused to a chair. They summoned two (2) barangay kagawads to witness the search. They were able to seize the following: (a) “one plastic bag containing yellowish substance”, (b) a weighing scale, (c) assorted documents; (d) passports; (e) bank books; (f) checks; (g) a typewriter; (h) a check writer; (i) several dry seals and (j) stamp pads; (k) Chinese and Philippine Currency and and appellant’s (l) Toyota Corolla car. An inventory was made signed by the police officers the kagawads and the son of the accused. There was likewise an affidavit of orderly search but not under oath. Accused was charged with illegal possession of shabu. One of the kagawads testified that shabu was not even one of the items seized and inventoried. What originally appeared was merely “Chinese Medicine”, but replaced with shabu. After trial, accused was convicted. He questioned the validity of the search.


Whether or not there was the presumption of regularity in the performance of duty in implementing the search warrant by the police officers.


No. The raiding team’s departure from the procedure mandated by Section 8, Rule 126 of the Rules of Court, taken together with the numerous other irregularities attending the search of appellant’s residence, tainted the search with the vice of unreasonableness, thus compelling this Court to apply the exclusionary rule and declare the seized articles inadmissible in evidence.  This must necessarily be so since it is this Court’s solemn duty to be ever watchful for the constitutional rights of the people, and against any stealthy encroachments thereon. In the oft-quoted language of Judge Learned Hand:

As we understand it, the reason for the exclusion of evidence competent as such, which has been unlawfully acquired, is that exclusion is the only practical way of enforcing the constitutional privilege.  In earlier times the action of trespass against the offending official may have been protection enough; but that is true no longer.  Only in case the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong, will that wrong be repressed.

What constitutes a reasonable or unreasonable search or seizure is a purely judicial question determinable from a consideration of the attendant circumstances including the purpose of the search, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured.

Indeed, a strict interpretation of the constitutional, statutory and procedural rules authorizing search and seizure is required, and strict compliance therewith is demanded because:

x x x Of all the rights of a citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves the exemption of his private affairs, books, and papers from the inspection and scrutiny of others.  While the power to search and seize is necessary to the public welfare, still it must be exercised and the law enforced without transgressing the constitutional rights of citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government.

In the case at bar, an examination of the testimonies of the police officers brings to light several irregularities in the manner by which the search of appellant’s residence was conducted.

Since the police officers had not yet notified the occupant of the residence of their intention and authority to conduct a search and absent a showing that they had any reasonable cause to believe that prior notice of service of the warrant would endanger its successful implementation, the deliberate sideswiping of appellant’s car was unreasonable and unjustified.

There is no showing, however, of any action or provocation by Jack Go when the policemen entered appellant’s residence.  Considering the degree of intimidation, alarm and fear produced in one suddenly confronted under similar circumstances, the forcible restraint of Jack Go all the more was unjustified as was his continued restraint even after Barangay Kagawads Lazaro and Manalo had arrived to justify his forcible restraint.

Moreover, as contended by petitioner, respondents in like manner transgressed Section 10 of Rule 126 of the Rules for failure to give a detailed receipt of the things seized. 

After the inventory had been prepared, it was presented to appellant for his signature without any showing that appellant was informed of his right not to sign such receipt and to the assistance of counsel.  Neither was he warned that the same could be used as evidence against him. In People v. Policarpio, this Court held that such practice of inducing suspects to sign receipts for property allegedly confiscated from their possession is unusual and violative of the constitutional right to remain silent.

The Inventory Receipt signed by appellant is thus not only inadmissible for being violative of appellant’s custodial right to remain silent; it is also an indicium of the irregularity in the manner by which the raiding team conducted the search of appellant’s residence.

The “Affidavit of Orderly Search” is not of any help in indicating the regularity of the search.  Not having been executed under oath, it is not actually an affidavit, but a pre-prepared form which the raiding team brought with them.  It was filled up after the search by team leader SPO1 Fernandez who then instructed appellant to sign it as he did instruct Jack Go, Kagawad Manalo and Kagawad Lazaro to sign as witnesses.

More importantly, since the “Affidavit of Orderly Search” purports to have been executed by appellant, the same cannot establish the propriety and validity of the search of his residence for he was admittedly not present when the search took place, he having arrived only when it was “almost through.”

In fine, since appellant did not witness the search of his residence, his alleged “Affidavit of Orderly Search,” prepared without the aid of counsel and by the very police officers who searched his residence and eventually arrested him, provides no proof of the regularity and propriety of the search in question.

On the contrary, from the account of the police officers, their search of appellant’s residence failed to comply with the mandatory provisions of Section 8 (formerly Section 7), Rule 126 of the Rules of Court, viz:

SEC. 8. Search of house, room, or premises, 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, two witnesses of sufficient age and discretion residing in the same locality.  (Underscoring supplied)

As pointed out earlier, the members of the raiding team categorically admitted that the search of the upper floor, which allegedly resulted in the recovery of the plastic bag containing the shabu, did not take place in the presence of either the lawful occupant of the premises, i.e. appellant (who was out), or his son Jack Go (who was handcuffed to a chair on the ground floor).  Such a procedure, whereby the witnesses prescribed by law are prevented from actually observing and monitoring the search of the premises, violates both the spirit and letter of the law:

As we have ruled in Eduardo Quintero vs. The National Bureau of Investigation, et al. a procedure, wherein members of a raiding party can roam around the raided premises unaccompanied by any witness, as the only witnesses available as prescribed by law are made to witness a search conducted by the other members of the raiding party in another part of the house, is violative of both the spirit and letter of the law.

That the raiding party summoned two barangay kagawads to witness the search at the second floor is of no moment.  The Rules of Court clearly and explicitly establishes a hierarchy among the witnesses in whose presence the search of the premises must be conducted.  Thus, Section 8, Rule 126 provides that the search should be witnessed by “two witnesses of sufficient age and discretion residing in the same locality” only in the absence of either the lawful occupant of the premises or any member of his family. Thus, the search of appellant’s residence clearly should have been witnessed by his son Jack Go who was present at the time. The police officers were without discretion to substitute their choice of witnesses for those prescribed by the law.


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