ALVAREZ vs. COURT OF FIRST INSTANCE

Alvarez vs. Court of First Instance of Tayabas [GR 45358, 29 January 1937]

First Division, Imperial (J): 4 concur

Facts: On 3 June 1936, the chief of the secret service of the Anti-Usury Board, of the Department of Justice, presented to Judge Eduardo Gutierrez David then presiding over the Court of First Instance of Tayabas, an affidavit alleging that according to reliable information, Narciso Alvarez kept in his house in Infanta, Tayabas, books, documents, receipts, lists, chits and other papers used by him in connection with his activities as a moneylender, charging usurious rates of interest in violation of the law. In his oath at the end of the affidavit, the chief of the secret service stated that his answers to the questions were correct to the best of his knowledge and belief. He did not swear to the truth of his statements upon his own knowledge of the facts but upon the information received by him from a reliable person. Upon the affidavit the judge, on said date, issued the warrant which is the subject matter of the petition, ordering the search of the Alvarez's house at any time of the day or night, the seizure of the books and documents and the immediate delivery thereof to him to be disposed of in accordance with the law. With said warrant, several agents of the Anti-Usury Board entered Alvarez's store and residence at 7:00 p.m. of 4 June 1936, and seized and took possession of the following articles: internal revenue licenses for the years 1933 to 1936, 1 ledger, 2 journals, 2 cashbooks, 9 order books, 4 notebooks, 4 check stubs, 2 memorandums, 3 bankbooks, 2 contracts, 4 stubs, 48 stubs of purchases of copra, 2 inventories, 2 bundles of bills of lading, 1 bundle of credit receipts, 1 bundle of stubs of purchases of copra, 2 packages of correspondence, 1 receipt book belonging to Luis Fernandez, 14 bundles of invoices and other papers, many documents and loan contracts with security and promissory notes, 504 chits, promissory notes and stubs of used checks of the Hongkong & Shanghai Banking Corporation (HSBC). The search for and seizure of said articles were made with the opposition of Alvarez who stated his protest below the inventories on the ground that the agents seized even the originals of the documents. As the articles had not been brought immediately to the judge who issued the search warrant, Alvarez, through his attorney, filed a motion on 8 June 1936, praying that the agent Emilio L. Siongco, or any other agent, be ordered immediately to deposit all the seized articles in the office of the clerk of court and that said agent be declared guilty of contempt for having disobeyed the order of the court. On said date the court issued an order directing Siongco to deposit all the articles seized within 24 hours from the receipt of notice thereof and giving him a period of 5 days within which to show cause why he should not be punished for contempt of court. On 10 June, Attorney Arsenio Rodriguez, representing the Anti-Usury Board, filed a motion praying that the order of the 8th of said month be set aside and that the Anti-Usury Board be authorized to retain the articles seized for a period of 30 days for the necessary investigation. On June 25, the court issued an order requiring agent Siongco forthwith to file the search warrant and the affidavit in the court, together with the proceedings taken by him, and to present an inventory duly verified by oath of all the articles seized. On July 2, the attorney for the petitioner filed a petition alleging that the search warrant issued was illegal and that it had not yet been returned to date together with the proceedings taken in connection therewith, and praying that said warrant be cancelled, that an order be issued directing the return of all the articles seized to Alvarez, that the agent who seized them be declared guilty of contempt of court, and that charges be filed against him for abuse of authority. On September 10, the court issued an order holding: that the search warrant was obtained and issued in accordance with the law, that it had been duly complied with and, consequently, should not be cancelled, and that agent Siongco did not commit any contempt of court and must, therefore, be exonerated, and ordering the chief of the Anti-Usury Board in Manila to show cause, if any, within the unextendible period of 2 days from the date of notice of said order, why all the articles seized appearing in the inventory should not be returned to Alvarez. The assistant chief of the Anti-Usury Board of the Department of Justice filed a motion praying, for the reasons stated therein, that the articles seized be ordered retained for the purpose of conducting an investigation of the violation of the Anti-Usury Law committed by Alvarez. On October 10, said official again filed another motion alleging that he needed 60 days to examine the documents and papers seized, which are designated on pages 1 to 4 of the inventory by Nos. 5, 10, 16, 23, 25-27, 30-31 , 34, 36-43 and 45, and praying that he be granted said period of 60 days. In an order of October 16, the court granted him the period of 60 days to investigate said 19 documents. Alvarez, herein, asks that the search warrant as well as the order authorizing the agents of the Anti-Usury Board to retain the articles seized, be declared illegal and set aside, and prays that all the articles in question be returned to him.

Issue: Whether the search warrant issued by the court is illegal because it has been based upon the affidavit of agent Almeda in whose oath he declared that he had no personal knowledge of the facts which were to serve as a basis for the issuance of the warrant but that he had knowledge thereof through mere information secured from a person whom he considered reliable, and that it is illegal as it was not supported by other affidavits aside from that made by the applicant.

Held: Section 1, paragraph 3, of Article III of the Constitution and Section 97 of General Orders 58 require that there be not only probable cause before the issuance of a search warrant but that the search warrant must be based upon an application supported by oath of the applicant and the witnesses he may produce. In its broadest sense, an oath includes any form of attestation by which a party signifies that he is bound in conscience to perform an act faithfully and truthfully; and it is sometimes defined as an outward pledge given by the person taking it that his attestation or promise is made under an immediate sense of his responsibility to God. The oath required must refer to the truth of the facts within the personal knowledge of the petitioner 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 affiant be held liable for damages caused. The affidavit, which served as the exclusive basis of the search warrant, is insufficient and fatally defective by reason of the manner in which the oath was made, and therefore, the search warrant and the subsequent seizure of the books, documents and other papers are illegal. Further, it is the practice in this jurisdiction to attach the affidavit of at least the applicant or complainant to the application. It is admitted that the judge who issued the search warrant in this case, relied exclusively upon the affidavit made by agent Almeda and that he did not require nor take the deposition of any other witness. Neither the Constitution nor General Orders 58 provides that it is of imperative necessity to take the depositions of the witnesses to be presented by the applicant or complainant in addition to the affidavit of the latter. The purpose of both in requiring the presentation of depositions is nothing more than to satisfy the committing magistrate of the existence of probable cause. Therefore, if the affidavit of the applicant or complainant is sufficient, the judge may dispense with that of other witnesses. Inasmuch as the affidavit of the agent was insufficient because his knowledge of the facts was not personal but merely hearsay, it is the duty of the judge to require the affidavit of one or more witnesses for the purpose of determining the existence of probable cause to warrant the issuance of the search warrant. When the affidavit of the applicant or complainant contains sufficient facts within his personal and direct knowledge, it is sufficient if the judge is satisfied that there exists probable cause; when the applicant's knowledge of the facts is mere hearsay, the affidavit of one or more witnesses having a personal knowledge of the facts is necessary. Thus the warrant issued is likewise illegal because it was based only on the affidavit of the agent who had no personal knowledge of the facts.

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Antonio L. Buensuceso Jr.