Republic of the Philippines newspapers, as well as numerous papers, documents, books and

SUPREME COURT other written literature alleged to be in the possession and control
Manila of petitioner Jose Burgos, Jr. publisher-editor of the "We Forum"
newspaper, were seized.
EN BANC
Petitioners further pray that a writ of preliminary mandatory and
G.R. No. L-64261 December 26, 1984 prohibitory injunction be issued for the return of the seized articles,
and that respondents, "particularly the Chief Legal Officer,
JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO Presidential Security Command, the Judge Advocate General,
and J. BURGOS MEDIA SERVICES, INC., petitioners, AFP, the City Fiscal of Quezon City, their representatives,
vs. assistants, subalterns, subordinates, substitute or successors" be
THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, enjoined from using the articles thus seized as evidence against
THE CHIEF, PHILIPPINE CONSTABULARY, THE CHIEF LEGAL petitioner Jose Burgos, Jr. and the other accused in Criminal Case
OFFICER, PRESIDENTIAL SECURITY COMMAND, THE JUDGE No. Q- 022782 of the Regional Trial Court of Quezon City,
ADVOCATE GENERAL, ET AL., respondents. entitled People v. Jose Burgos, Jr. et al. 1

In our Resolution dated June 21, 1983, respondents were required to answer the petition. The
Lorenzo M. Tañada, Wigberto E. Tañada, Martiniano Vivo, plea for preliminary mandatory and prohibitory injunction was set for hearing on June 28,
Augusto Sanchez, Joker P. Arroyo, Jejomar Binay and Rene 1983, later reset to July 7, 1983, on motion of the Solicitor General in behalf of respondents.
Saguisag for petitioners.
At the hearing on July 7, 1983, the Solicitor General, while
The Solicitor General for respondents. opposing petitioners' prayer for a writ of preliminary mandatory
injunction, manifested that respondents "will not use the
aforementioned articles as evidence in the aforementioned case
until final resolution of the legality of the seizure of the
aforementioned articles. ..."   With this manifestation, the prayer for
2

ESCOLIN, J.: preliminary prohibitory injunction was rendered moot and

academic.
Assailed in this petition for certiorari prohibition and mandamus
with preliminary mandatory and prohibitory injunction is the validity Respondents would have this Court dismiss the petition on the
of two [2] search warrants issued on December 7, 1982 by ground that petitioners had come to this Court without having
respondent Judge Ernani Cruz-Pano, Executive Judge of the then previously sought the quashal of the search warrants before
Court of First Instance of Rizal [Quezon City], under which the respondent judge. Indeed, petitioners, before impugning the validity
premises known as No. 19, Road 3, Project 6, Quezon City, and of the warrants before this Court, should have filed a motion to
784 Units C & D, RMS Building, Quezon Avenue, Quezon City, quash said warrants in the court that issued them.   But this 3

business addresses of the "Metropolitan Mail" and "We Forum" procedural flaw notwithstanding, we take cognizance of this petition
newspapers, respectively, were searched, and office and printing in view of the seriousness and urgency of the constitutional issues
machines, equipment, paraphernalia, motor vehicles and other raised not to mention the public interest generated by the search of
articles used in the printing, publication and distribution of the said
the "We Forum" offices, which was televised in Channel 7 and Hence, as soon as they could, petitioners, upon suggestion of
widely publicized in all metropolitan dailies. The existence of this persons close to the President, like Fiscal Flaminiano, sent a letter
special circumstance justifies this Court to exercise its inherent to President Marcos, through counsel Antonio Coronet asking the
power to suspend its rules. In the words of the revered Mr. Justice return at least of the printing equipment and vehicles. And after
Abad Santos in the case of C. Vda. de Ordoveza v. Raymundo,   "it4
such a letter had been sent, through Col. Balbino V. Diego, Chief
is always in the power of the court [Supreme Court] to suspend its Intelligence and Legal Officer of the Presidential Security
rules or to except a particular case from its operation, whenever Command, they were further encouraged to hope that the latter
the purposes of justice require it...". would yield the desired results.

Respondents likewise urge dismissal of the petition on ground of After waiting in vain for five [5] months, petitioners finally decided to
laches. Considerable stress is laid on the fact that while said come to Court. [pp. 123-124, Rollo]
search warrants were issued on December 7, 1982, the instant
petition impugning the same was filed only on June 16, 1983 or Although the reason given by petitioners may not be flattering to
after the lapse of a period of more than six [6] months. our judicial system, We find no ground to punish or chastise them
for an error in judgment. On the contrary, the extrajudicial efforts
Laches is failure or negligence for an unreasonable and exerted by petitioners quite evidently negate the presumption that
unexplained length of time to do that which, by exercising due they had abandoned their right to the possession of the seized
diligence, could or should have been done earlier. It is negligence property, thereby refuting the charge of laches against them.
or omission to assert a right within a reasonable time, warranting a
presumption that the party entitled to assert it either has Respondents also submit the theory that since petitioner Jose
abandoned it or declined to assert it. 
5
Burgos, Jr. had used and marked as evidence some of the seized
documents in Criminal Case No. Q- 022872, he is now estopped
Petitioners, in their Consolidated Reply, explained the reason for from challenging the validity of the search warrants. We do not
the delay in the filing of the petition thus: follow the logic of respondents. These documents lawfully belong
to petitioner Jose Burgos, Jr. and he can do whatever he pleases
Respondents should not find fault, as they now do [p. 1, Answer, p. with them, within legal bounds. The fact that he has used them as
3, Manifestation] with the fact that the Petition was filed on June evidence does not and cannot in any way affect the validity or
16, 1983, more than half a year after the petitioners' premises had invalidity of the search warrants assailed in this petition.
been raided.
Several and diverse reasons have been advanced by petitioners to
The climate of the times has given petitioners no other choice. If nullify the search warrants in question.
they had waited this long to bring their case to court, it was
because they tried at first to exhaust other remedies. The events of 1. Petitioners fault respondent judge for his alleged failure to
the past eleven fill years had taught them that everything in this conduct an examination under oath or affirmation of the applicant
country, from release of public funds to release of detained and his witnesses, as mandated by the above-quoted constitutional
persons from custody, has become a matter of executive provision as wen as Sec. 4, Rule 126 of the Rules of Court .  This 6

benevolence or largesse objection, however, may properly be considered moot and

academic, as petitioners themselves conceded during the hearing held "that the executing officer's prior knowledge as to the place
on August 9, 1983, that an examination had indeed been intended in the warrant is relevant. This would seem to be
conducted by respondent judge of Col. Abadilla and his witnesses. especially true where the executing officer is the affiant on whose
affidavit the warrant had issued, and when he knows that the judge
2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to who issued the warrant intended the building described in the
search two distinct places: No. 19, Road 3, Project 6, Quezon City affidavit, And it has also been said that the executing officer may
and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, look to the affidavit in the official court file to resolve an ambiguity
respectively. Objection is interposed to the execution of Search in the warrant as to the place to be searched."  8

Warrant No. 20-82[b] at the latter address on the ground that the
two search warrants pinpointed only one place where petitioner 3. Another ground relied upon to annul the search warrants is the
Jose Burgos, Jr. was allegedly keeping and concealing the articles fact that although the warrants were directed against Jose Burgos,
listed therein, i.e., No. 19, Road 3, Project 6, Quezon City. This Jr. alone, articles b belonging to his co-petitioners Jose Burgos,
assertion is based on that portion of Search Warrant No. 20- 82[b] Sr., Bayani Soriano and the J. Burgos Media Services, Inc. were
which states: seized.

Which have been used, and are being used as instruments and Section 2, Rule 126 of the Rules of Court, enumerates the personal
means of committing the crime of subversion penalized under P.D. properties that may be seized under a search warrant, to wit:
885 as amended and he is keeping and concealing the same at 19
Road 3, Project 6, Quezon City. Sec. 2. Personal Property to be seized. — A search warrant may
be issued for the search and seizure of the following personal
The defect pointed out is obviously a typographical error. Precisely, property:
two search warrants were applied for and issued because the
purpose and intent were to search two distinct premises. It would [a] Property subject of the offense;
be quite absurd and illogical for respondent judge to have issued
two warrants intended for one and the same place. Besides, the [b] Property stolen or embezzled and other proceeds or fruits of the
addresses of the places sought to be searched were specifically offense; and
set forth in the application, and since it was Col. Abadilla himself
who headed the team which executed the search warrants, the
[c] Property used or intended to be used as the means of
ambiguity that might have arisen by reason of the typographical
committing an offense.
error is more apparent than real. The fact is that the place for which
Search Warrant No. 20- 82[b] was applied for was 728 Units C &
D, RMS Building, Quezon Avenue, Quezon City, which address The above rule does not require that the property to be seized
appeared in the opening paragraph of the said warrant.   Obviously
7 should be owned by the person against whom the search warrant
this is the same place that respondent judge had in mind when he is directed. It may or may not be owned by him. In fact, under
issued Warrant No. 20-82 [b]. subsection [b] of the above-quoted Section 2, one of the properties
that may be seized is stolen property. Necessarily, stolen property
must be owned by one other than the person in whose possession
In the determination of whether a search warrant describes the
it may be at the time of the search and seizure. Ownership,
premises to be searched with sufficient particularity, it has been
therefore, is of no consequence, and it is sufficient that the person accordance with Section 3, Article IV of the 1973 Constitution
against whom the warrant is directed has control or possession of which provides:
the property sought to be seized, as petitioner Jose Burgos, Jr.
was alleged to have in relation to the articles and property seized SEC. 3. ... and no search warrant or warrant of arrest shall issue
under the warrants. except upon probable cause to be determined by the judge, or
such other responsible officer as may be authorized by law, after
4. Neither is there merit in petitioners' assertion that real properties examination under oath or affirmation of the complainant and the
were seized under the disputed warrants. Under Article 415[5] of witnesses he may produce, and particularly describing the place to
the Civil Code of the Philippines, "machinery, receptables, be searched and the persons or things to be seized.
instruments or implements intended by the owner of the tenement
for an industry or works which may be carried on in a building or on We find petitioners' thesis impressed with merit. Probable cause for
a piece of land and which tend directly to meet the needs of the a search is defined as such facts and circumstances which would
said industry or works" are considered immovable property. lead a reasonably discreet and prudent man to believe that an
In Davao Sawmill Co. v. Castillo  where this legal provision was
9
offense has been committed and that the objects sought in
invoked, this Court ruled that machinery which is movable by connection with the offense are in the place sought to be searched.
nature becomes immobilized when placed by the owner of the And when the search warrant applied for is directed against a
tenement, property or plant, but not so when placed by a tenant, newspaper publisher or editor in connection with the publication of
usufructuary, or any other person having only a temporary right, subversive materials, as in the case at bar, the application and/or
unless such person acted as the agent of the owner. its supporting affidavits must contain a specification, stating with
particularity the alleged subversive material he has published or is
In the case at bar, petitioners do not claim to be the owners of the intending to publish. Mere generalization will not suffice. Thus, the
land and/or building on which the machineries were placed. This broad statement in Col. Abadilla's application that petitioner "is in
being the case, the machineries in question, while in fact bolted to possession or has in his control printing equipment and other
the ground remain movable property susceptible to seizure under a paraphernalia, news publications and other documents which were
search warrant. used and are all continuously being used as a means of committing
the offense of subversion punishable under Presidential Decree
5. The questioned search warrants were issued by respondent 885, as amended ..." 12 is a mere conclusion of law and does not satisfy the
requirements of probable cause. Bereft of such particulars as would justify a finding of the
judge upon application of Col. Rolando N. Abadilla Intelligence existence of probable cause, said allegation cannot serve as basis for the issuance of a
Officer of the P.C. Metrocom.  The application was accompanied
10
search warrant and it was a grave error for respondent judge to have done so.
by the Joint Affidavit of Alejandro M. Gutierrez and Pedro U.
Tango, 11 members of the Metrocom Intelligence and Security Group under Col. Abadilla Equally insufficient as basis for the determination of probable
which conducted a surveillance of the premises prior to the filing of the application for the
search warrants on December 7, 1982.
cause is the statement contained in the joint affidavit of Alejandro
M. Gutierrez and Pedro U. Tango, "that the evidence gathered and
collated by our unit clearly shows that the premises above-
It is contended by petitioners, however, that the abovementioned
mentioned and the articles and things above-described were used
documents could not have provided sufficient basis for the finding
and are continuously being used for subversive activities in
of a probable cause upon which a warrant may validly issue in
conspiracy with, and to promote the objective of, illegal
organizations such as the Light-a-Fire Movement, Movement for 2] DATSUN pick-up colored white with Plate No. NKV 969
Free Philippines, and April 6 Movement." 13
3] A delivery truck with Plate No. NBS 524;
In mandating that "no warrant shall issue except upon probable
cause to be determined by the judge, ... after examination under 4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665;
oath or affirmation of the complainant and the witnesses he may and,
produce; 14 the Constitution requires no less than personal knowledge by the complainant
or his witnesses of the facts upon which the issuance of a search warrant may be justified.
In Alvarez v. Court of First Instance, 15 this Court ruled that "the oath required must refer to 5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with
the truth of the facts within the personal knowledge of the petitioner or his witnesses, because marking "Bagong Silang."
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." As
couched, the quoted averment in said joint affidavit filed before respondent judge hardly meets In Stanford v. State of Texas 16 the search warrant which authorized the search
the test of sufficiency established by this Court in Alvarez case. for "books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and
other written instruments concerning the Communist Party in Texas," was declared void by the
U.S. Supreme Court for being too general. In like manner, directions to "seize any evidence in
Another factor which makes the search warrants under connectionwith the violation of SDC 13-3703 or otherwise" have been held too general, and
consideration constitutionally objectionable is that they are in the that portion of a search warrant which authorized the seizure of any "paraphernalia which
could be used to violate Sec. 54-197 of the Connecticut General Statutes [the statute dealing
nature of general warrants. The search warrants describe the with the crime of conspiracy]" was held to be a general warrant, and therefore invalid.  17 The
articles sought to be seized in this wise: description of the articles sought to be seized under the search warrants in question cannot be
characterized differently.

1] All printing equipment, paraphernalia, paper, ink, photo

(equipment, typewriters, cabinets, tables, In the Stanford case, the U.S. Supreme Courts calls to mind a
communications/recording equipment, tape recorders, dictaphone notable chapter in English history: the era of disaccord between the
and the like used and/or connected in the printing of the "WE Tudor Government and the English Press, when "Officers of the
FORUM" newspaper and any and all documents communication, Crown were given roving commissions to search where they
letters and facsimile of prints related to the "WE FORUM" pleased in order to suppress and destroy the literature of dissent
newspaper. both Catholic and Puritan Reference herein to such historical
episode would not be relevant for it is not the policy of our
2] Subversive documents, pamphlets, leaflets, books, and other government to suppress any newspaper or publication that speaks
publication to promote the objectives and piurposes of the with "the voice of non-conformity" but poses no clear and imminent
subversive organization known as Movement for Free Philippines, danger to state security.
Light-a-Fire Movement and April 6 Movement; and,
As heretofore stated, the premises searched were the business
3] Motor vehicles used in the distribution/circulation of the "WE and printing offices of the "Metropolitan Mail" and the "We Forum
FORUM" and other subversive materials and propaganda, more newspapers. As a consequence of the search and seizure, these
particularly, premises were padlocked and sealed, with the further result that
the printing and publication of said newspapers were discontinued.
1] Toyota-Corolla, colored yellow with Plate No. NKA 892;
Such closure is in the nature of previous restraint or censorship
abhorrent to the freedom of the press guaranteed under the
fundamental law, 18 and constitutes a virtual denial of petitioners' freedom to express 2. Contrary to reports, President Marcos turned down the
themselves in print. This state of being is patently anathematic to a democratic framework recommendation of our authorities to close the paper's printing
where a free, alert and even militant press is essential for the political enlightenment and
growth of the citizenry. facilities and confiscate the equipment and materials it uses. 21

Respondents would justify the continued sealing of the printing IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a]
machines on the ground that they have been sequestered under and 20-82[b] issued by respondent judge on December 7, 1982 are
Section 8 of Presidential Decree No. 885, as amended, which hereby declared null and void and are accordingly set aside. The
authorizes "the sequestration of the property of any person, natural prayer for a writ of mandatory injunction for the return of the seized
or artificial, engaged in subversive activities against the articles is hereby granted and all articles seized thereunder are
government and its duly constituted authorities ... in accordance hereby ordered released to petitioners. No costs.
with implementing rules and regulations as may be issued by the
Secretary of National Defense." It is doubtful however, if SO ORDERED.
sequestration could validly be effected in view of the absence of
any implementing rules and regulations promulgated by the Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-
Minister of National Defense. Herrera, Plana, Relova, Gutierrez, Jr., De la Fuente and Cuevas,
JJ., concur.
Besides, in the December 10, 1982 issue of the Daily Express, it
was reported that no less than President Marcos himself denied Aquino, J., took no part.
the request of the military authorities to sequester the property
seized from petitioners on December 7, 1982. Thus:  

The President denied a request flied by government prosecutors  

for sequestration of the WE FORUM newspaper and its printing
presses, according to Information Minister Gregorio S. Cendana.
Separate Opinions
On the basis of court orders, government agents went to the We
Forum offices in Quezon City and took a detailed inventory of the  
equipment and all materials in the premises.
ABAD SANTOS, J., concurring
Cendaña said that because of the denial the newspaper and its
equipment remain at the disposal of the owners, subject to the I am glad to give my concurrence to the ponencia of Mr. Justice
discretion of the court. 19 Escolin At the same time I wish to state my own reasons for
holding that the search warrants which are the subject of the
That the property seized on December 7, 1982 had not been sequestered is further confirmed petition are utterly void.
by the reply of then Foreign Minister Carlos P. Romulo to the letter dated February 10, 1983 of
U.S. Congressman Tony P. Hall addressed to President Marcos, expressing alarm over the
"WE FORUM " case. 20 In this reply dated February 11, 1983, Minister Romulo stated:
The action against "WE FORUM" was a naked suppression of subversive organizations known as Movement for Free Philippines,
press freedom for the search warrants were issued in gross Light-a-Fire Movement and April 6 Movement.
violation of the Constitution.
The obvious question is: Why were the documents, pamphlets,
The Constitutional requirement which is expressed in Section 3, leaflets, books, etc. subversive? What did they contain to make
Article IV, stresses two points, namely: "(1) that no warrant shall them subversive? There is nothing in the applications nor in the
issue but upon probable cause, to be determined by the judge in warrants which answers the questions. I must, therefore, conclude
the manner set forth in said provision; and (2) that the warrant shall that the warrants are general warrants which are obnoxious to the
particularly describe the things to be seized." (Stonehill vs. Diokno, Constitution.
126 Phil. 738, 747: 20 SCRA 383 [1967].)
In point of fact, there was nothing subversive published in the WE
Any search warrant is conducted in disregard of the points FORUM just as there is nothing subversive which has been
mentioned above will result in wiping "out completely one of the published in MALAYA which has replaced the former and has the
most fundamental rights guaranteed in our Constitution, for it would same content but against which no action has been taken.
place the sanctity of the domicile and the privacy of communication
and correspondence at the mercy of the whims caprice or passion Conformably with existing jurisprudence everything seized
of peace officers." (Ibid, p. 748.) pursuant to the warrants should be returned to the owners and all
of the items are subject to the exclusionary rule of evidence.
The two search warrants were issued without probable cause. To
satisfy the requirement of probable cause a specific offense must Teehankee, J., concur.
be alleged in the application; abstract averments will not suffice. In
the case at bar nothing specifically subversive has been alleged;  
stated only is the claim that certain objects were being used as
instruments and means of committing the offense of subversion
 
punishable under P.D. No. 885, as amended. There is no mention
of any specific provision of the decree. I n the words of Chief
Justice C Concepcion, " It would be legal heresy of the highest Separate Opinions
order, to convict anybody" of violating the decree without reference
to any determinate provision thereof. ABAD SANTOS, J., concurring

The search warrants are also void for lack of particularity. Both I am glad to give my concurrence to the ponencia of Mr. Justice
search warrants authorize Col. Rolando Abadilla to seize and take Escolin At the same time I wish to state my own reasons for
possession, among other things, of the following: holding that the search warrants which are the subject of the
petition are utterly void.
Subversive documents, pamphlets, leaflets, books and other
publication to promote the objectives and purposes of the The action against "WE FORUM" was a naked suppression of
press freedom for the search warrants were issued in gross
violation of the Constitution.
The Constitutional requirement which is expressed in Section 3, them subversive? There is nothing in the applications nor in the
Article IV, stresses two points, namely: "(1) that no warrant shall warrants which answers the questions. I must, therefore, conclude
issue but upon probable cause, to be determined by the judge in that the warrants are general warrants which are obnoxious to the
the manner set forth in said provision; and (2) that the warrant shall Constitution.
particularly describe the things to be seized." (Stonehill vs. Diokno,
126 Phil. 738, 747: 20 SCRA 383 [1967].) In point of fact, there was nothing subversive published in the WE
FORUM just as there is nothing subversive which has been
Any search warrant is conducted in disregard of the points published in MALAYA which has replaced the former and has the
mentioned above will result in wiping "out completely one of the same content but against which no action has been taken.
most fundamental rights guaranteed in our Constitution, for it would
place the sanctity of the domicile and the privacy of communication Conformably with existing jurisprudence everything seized
and correspondence at the mercy of the whims caprice or passion pursuant to the warrants should be returned to the owners and all
of peace officers." (Ibid, p. 748.) of the items are subject to the exclusionary rule of evidence.

The two search warrants were issued without probable cause. To Teehankee, J., concur.
satisfy the requirement of probable cause a specific offense must
be alleged in the application; abstract averments will not suffice. In
the case at bar nothing specifically subversive has been alleged;
stated only is the claim that certain objects were being used as
instruments and means of committing the offense of subversion
punishable under P.D. No. 885, as amended. There is no mention
of any specific provision of the decree. I n the words of Chief
Justice C Concepcion, " It would be legal heresy of the highest
order, to convict anybody" of violating the decree without reference
to any determinate provision thereof.

The search warrants are also void for lack of particularity. Both
search warrants authorize Col. Rolando Abadilla to seize and take
possession, among other things, of the following:

Subversive documents, pamphlets, leaflets, books and other

publication to promote the objectives and purposes of the
subversive organizations known as Movement for Free Philippines,
Light-a-Fire Movement and April 6 Movement.

The obvious question is: Why were the documents, pamphlets,

leaflets, books, etc. subversive? What did they contain to make