SEARCH WARRANT Principles

SEARCH WARRANT NOTES
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.
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. 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
statements, together with the affidavits submitted.
 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.
 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.
 Personal examination by the judge of the applicant and his witnesses is

indispensable, and the examination should be probing and exhaustive, not merely
routinary or a rehash of the affidavits.
 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.
OGAYON Case: (G.R. No. 188794, September 2, 2015)
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.
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.

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SEARCH WARRANT NOTES

 Personal examination by the judge of the applicant and his witnesses is

OGAYON Case: (G.R. No. 188794, September 2, 2015)

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