Belief, not knowledge

Before issuing a search warrant, a judge must conduct an exhaustive and probing inquiry of the applicant and his witnesses to determine the existence of probable cause which must be shown by the best evidence under the circumstances. In the case of illegal possession of firearms, what constitutes probable cause? This is answered in the case of Rufo.

Rufo is a resident of a certain purok in Mindanao. Several times people in his community have seen him in possession of a .22 magnum and a 9mm pistol in the public market. His neighbor, Mario also witnessed him carrying and firing the pistols many times particularly the .22 magnum. So Mario went to the local police station to report the incidents. Acting on said report, the police conducted a surveillance operation on the spot and confirmed the report of Mario. So PO3 Fred took down the affidavit of Mario who related what he witnessed. Then two hours later at 2:30pm, PO3 Fred applied for a search warrant before the local Regional Trial Court (RTC) judge submitting the affidavit of Mario and his own affidavit.

In his inquiry the RTC judge merely rehashed the contents of their affidavits questioning both Mario and PO3 Fred about them to confirm the truth of their contents. PO3 Fred also testified before the judge that the firearms in possession of Rufo are not licensed. Based on these affidavits and his inquiry, the judge issued the search warrant to search the person and residence of "Rufo alias Nardo of Purok 4 Poblacion Kitaokitao, Bukidnon" for alleged illegal possession of .22 magnum and 9 mm pistol in violation of RA 8294 which amended PD 1866, the law on illegal possession of firearms.

At 6:30 pm of the same day PO3 Fred and other police officers search Rufo’s house and seized 1 cal.38 revolver; 1 fragmentation grenade; 5 live ammo for the cal.38; 1 long barrel and 4 disposable lighter and unestimated number of cellophane used for packing shabu.

Ten days later, Rufo was charged with illegal possession of firearms ammunitions and explosives. Rufo asked for the quashal of the search warrant and declare inadmissible for any purpose the items allegedly seized on the ground that the probable cause for such issuance has not been amply proven.

Was Rufo correct?

Yes.

Probable cause as applied to illegal possession of firearms consists of such facts and circumstances which would lead a reasonably discreet and prudent man to believe that a person is in possession of a firearm and that he does not have a license or permit to possess the same. Probable cause must be shown by the best evidence that could be obtained under the circumstances especially where the issue is the existence of a negative ingredient of the offense e.g. the absence of a license required by law. The probable cause must be shown to be within the personal knowledge of the complainant or the witnesses he may produced and not based on mere hearsay.

In this case, nowhere in the affidavit and testimony of Mario nor in PO3 Fred’s application for issuance of a search warrant was it mentioned that Rufo had no license to possess a firearm. While PO3 Fred testified before the RTC judge that the firearms found in possession of Rufo are not licensed, this does not qualify as personal knowledge but only personal belief because neither he nor Mario verified, much more secured, a certification from the appropriate government agency that Rufo was not licensed to possess a firearm. This certification could have been the best evidence obtainable to prove that Rufo had no license to possess firearms and ammunitions, but the police officers failed to present the same.

So the search and seizure warrant issued against Rufo is void and the articles seized by virtue thereof are inadmissible in evidence ( Nala vs. Barroso, Jr. etc. G.R. 153087, August 7, 2003)

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