REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT

NATIONAL CAPITAL JUDICIAL REGION BRANCH 98

PEOPLE OF THE PHILIPPINES, Plaintiff,

- versus - SEARCH WARRANT No. 4811(12) For: Violation of Art. 172 (2) of The Revised Penal Code

MARIA CECILIA OEBANDA, Executive Director, and/or the OCCUPANTS and EMPLOYEES of VISAYAN FORUM FOUNDATION, INC. Located at No. 18, 12th Avenue, Brgy. Socorro, Cubao, Quezon City, Respondents. x--------------------------------------------------------x

URGENT MOTION TO QUASH SEARCH WARRANT

Respondents, through counsel, respectfully state:

1. On 31 August 2012, the Honorable Court issued a Search Warrant against

respondents.

2. The Search Warrant directs any peace officer to “make an immediate search in

the day time of the premises above-described and forthwith seize and take possession of

the following personal property:

a) Following Books of Accounts and records covering periods from 2005-2011;

General Ledger, Subsidiary Ledger on Advances from Employees, Bank

Statements, Reconciliation Statements, Cash Disbursement Books, Check

Vouchers, Journal Vouchers, Daily Time Records, Service Contract of all

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Employees, Service Contracts of all Contractors billed to USAID Port

Project, Fund Accountability Statements;

b) Desktops and Laptops of the Finance Manager, Finance Officer, Bookkeeper

and Administration Officer;

c) Unused pre-printed Official Receipts, Official Receipts and Petty Cash

Vouchers which can be bought from bookstore, VFFI Cash Vouchers and

Stationeries;

and bring said property to the undersigned to be dealt with as the law directs.”

3. The Search Warrant was issued on the basis of the testimonies of: Atty. Dennis

R. Villasfer and Atty. Erickson Donn R. Mercado, both of the National Bureau of

Investigation (NBI) and their witnesses Maria Analie L. Villacorte and Celestina M.

Aguilar.

4. In the afternoon of 31 August 2012, the NBI implemented the Search Warrant

and seized the items described in several “Receipt / Inventory of Property Seized”.

5. Respondents respectfully submit that there is no probable cause to issue the

Search Warrant.

6. The Search Warrant covered the period from 2005 to 2011. Yet, the NBI

agents applied for the warrant only on 31 August 2012! The remoteness in time between

the alleged commission of the offense and the application for a search warrant shows the

absence of probable cause.

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6.1. The ruling in Asian Surety and Insurance Company, Inc. vs. Hon.

Herrera, G.R. No. L-25232 December 20, 1973, is squarely applicable. There,

the trial court isued a search warrant in 1965 directing peace officers to seize

documents allegedly falsified in 1961 to 1964.

In nullyfing and setting aside the search warrant, the Supreme Court held

that because “the offenses alleged (sic) took place from 1961 to 1964, and the

application for search warrant was made on October 27, 1965” the “time of the

application is so far remote in time as to make the probable cause of doubtful

veracity and the warrant vitally defective.” The ruling reads in relevant part:

“It has likewise been observed that the offenses alleged took place from 1961 to 1964, and the application for search warrant was made on October 27, 1965. The time of the application is so far remote in time as to make the probable cause of doubtful veracity and the warrant vitally defective. Thus Mr. Joseph Varon, an eminent authority on Searches, Seizures and Immunities, has this to say on this point:

From the examination of the several cases touching upon this subject, the following general rules are said to apply to affidavits for search warrants:

(1) xxx xxx xxx

(2) Such statement as to the time of the alleged offense must be clear and definite and must not be too remote from the time of the making of the affidavit and issuance of the search warrant.

(3) There is no rigid rule for determining whether the stated time of observation of the offense is too remote from the time when the affidavit is made or the search warrant issued, but, generally speaking, a lapse of time of more than three weeks will be held not to invalidate the search warrant while a lapse of four weeks will be held to be so.

A good and practical rule of thumb to measure the nearness of time given in the affidavit as to the date of the alleged offense, and the time of making the affidavit is thus expressed: The nearer the time at which the observation of the offense is alleged to have been made, the more reasonable the conclusion of establishment of probable cause. [Emphasis Ours]”

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6.2, Here, the time between the alleged commission of the crime and the

application for the search warrant is even far more remote! Whereas the search

warrant in Asian Surety sought to recover documents that were allegedly falsified

1-3 years earlier, the subject Search Warrant goes as far back as seven (7) years

ago.

6.3. This remoteness in time should have alerted the NBI to the

improbability of and exaggerations in the testimonies of Maria Analie L.

Villacorte and Celestina M. Aguilar and should have casted serious doubts on the

credibility of both witnesses.

6.4. Equally applicable and more notable is the ruling in Quintero vs. The

National Bureau of Investigation, G.R. No. L-35149, 23 June 1988, a case

involving the validity of a search warrant. There, the Supreme Court held that it

was a source of wonder why the affiant reported the commission of the offense

only on 31 May 1972, when the affiant allegedly witnessed it on 29 May 1972.

6.5. If a 2-day delay in the reporting of the commission of a crime is

reason enough to cause a judge to wonder at the credibility of a witness and the

plausibility of his testimony in applying for a search warrant, what more a delay

of 2000 days?

6.6. Here, it appears that the NBI was only too quick to please the

Americans at the USAID; too quick to swallow hook, line and sinker the wild

accusations of a paranoid auditor; too quick to absolve an apparently guilty

bookkeeper; and saddest of all, too quick to think the worst of the Filipino officers

of Visayan Forum Foundation, Inc. (VFFI), who have devoted their lives to

saving, protecting, and sheltering abused and exploited women and children.

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7. Moreover, under the circumstances, the description of the documents is

overly broad, violating the Rule that the things to be seized should be described with

sufficient particularity.

The auditor audited VFFI for nearly five (5) months, while the bookkeeper had

been employed with VFFI for five (5) years. Yet, they still could not describe the

documents with sufficient particularity. Instead of pinpointing the documents that had

been “manufactured”, they sought to seize the following broadly described documents:

“Books of Accounts and records covering periods from 2005-2011; General Ledger,

Subsidiary Ledger on Advances from Employees, Bank Statements, Reconciliation

Statements, Cash Disbursement Books, Check Vouchers, Journal Vouchers, Daily Time

Records, Service Contract of all Employees, Service Contracts of all Contractors billed to

USAID Port Project, Fund Accountability Statements.” In other words, plaintiff was not

sure what it was looking for; they had embarked on what is clearly a fishing expedition.

In People vs. Rubio, G.R. No. 35500, 27 October 1932, the Supreme Court held

that the description of the property to be seized should be as specific as “the

circumstances will ordinarily allow”. Here, the circumstances allowed for a more

specific description of the documents to be seized due to the auditor’s and bookkeeper’s

supposed familiarity with the records. Yet, the best that they could do was provide for a

general description.

8. On the matter of the alleged unused official receipts, these are irrelevant.

Unless and until these receipts are, in fact, used, there is no falsification.

8.1. Article 172(2) of the Revised Penal Code provides:

Art. 172. Falsification by private individual and use of falsified

documents. — The penalty of prision correccional in its medium and maximum periods and a fine of not more than P5,000 pesos shall be imposed upon:

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1. Any private individual who shall commit any of the

falsifications enumerated in the next preceding article in any public or official document or letter of exchange or any other kind of commercial document; and

2. Any person who, to the damage of a third party, or with the

intent to cause such damage, shall in any private document commit any of the acts of falsification enumerated in the next preceding article.

Any person who shall knowingly introduce in evidence in any

judicial proceeding or to the damage of another or who, with the intent to cause such damage, shall use any of the false documents embraced in the next preceding article, or in any of the foregoing subdivisions of this article, shall be punished by the penalty next lower in degree.” (Underscoring added)

8.2. On the other hand, Article 171 provides:

“Art. 171. Falsification by public officer, employee or notary

or ecclesiastic minister. — The penalty of prision mayor and a fine not to exceed P5,000 pesos shall be imposed upon any public officer, employee, or notary who, taking advantage of his official position, shall falsify a document by committing any of the following acts:

1. Counterfeiting or imitating any handwriting, signature or

rubric; 2. Causing it to appear that persons have participated in any

act or proceeding when they did not in fact so participate;

3. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them;

4. Making untruthful statements in a narration of facts;

5. Altering true dates;

6. Making any alteration or intercalation in a genuine

document which changes its meaning; 7. Issuing in an authenticated form a document purporting to

be a copy of an original document when no such original exists, or including in such a copy a statement contrary to, or different from, that of the genuine original; or

8. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book.

The same penalty shall be imposed upon any ecclesiastical

minister who shall commit any of the offenses enumerated in the preceding paragraphs of this article, with respect to any record or document of such character that its falsification may affect the civil status of persons.”

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8.3. Unless and until any of the “acts” described under Article 171 is

committed, there is and can be no falsification to speak of.

8.4. Hence, the “unused” official receipts are irrelevant and,

consequently, inadmissible.

8.5. In any event, it appears that the only probable cause established

by plaintiff with respect to the alleged falsification of official receipts is that

the bookkeeper herself, on account of her own incriminating admissions, has

falsified documents.

9. Apart from the documents, plaintiff likewise failed to establish probable cause

for searching and seizing the computers of the Finance Manager, Finance Officer, and

Administration Officer.

9.1. Neither the auditor nor the bookkeeper had access to and, therefore,

could not possibly have known the contents of, the computers of the Finance

Manager, Finance Officer, or Administration Officer. The bookkeeper, Ms.

Villacorte, has her own computer. Suspicion that the computers of her

officemates may contain evidence relevant to falsification charges is not sufficient

basis to issue a search warrant: suspicion does not meet nor rise to the level of the

standard of probable cause. As held by the Supreme Court, “Search warrants are

not issued on loose, vague or doubtful basis of fact, nor on mere suspicion or

belief.” (Quintero vs. The National Bureau of Investigation, supra).

9.2. Moreover, there are serious privacy issues implicated by the issuance

of the Search Warrant because these computers contain highly sensitive and

personal information on other beneficiaries of and projects by VFFI. VFFI has

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strictly kept and treated the records of its beneficiaries confidential to protect the

trafficked and sexually abused women. The last thing these victims need or want

is to have any information about them leaked to third persons. The sweeping

nature of the Search Warrant violates the dearly held and constitutionally

protected right to privacy of these women and children.

9.3. Also, no relation has been shown between the contents of the

computers of the Finance Manager, Finance Officer, or Administration Officer

and the alleged falsification of private documents, which, based on the

testimonies of plaintiff’s witnesses, are paper documents. There is no inherent

relation between the seized computers and the alleged falsified documents.

The ruling in Kheytin vs. Villareal, G.R. No. 16009, 21 September 1920,

is instructive. There, one of the issues was whether, under a search warrant for

opium, the officers of the law were authorized to seize books, personal letters, and

other property having a remote or no connection with opium. The Supreme Court

held that they could not, thus:

“3.That the seizure of the petitioners' books, letters, telegrams, and other articles which have no inherent relation with opium and the possession of which is not forbidden by law, was illegal and in violation of the petitioners' constitutional rights.”

10. Another ground for quashal is the Search Warrant’s failure to specify “one

specific offense”. While the Search Warrant states that it was issued for violation of

Article 172(2) of the Revised Penal Code, it fails to identify the particular act of

falsification.

10.1. As discussed above, Article 172(2) of the Revised Penal Code refers

to acts described in Article 171.

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10.2. Notably, Article 171 describes eight (8) different ways of

committing falsification. However, the Search Warrant does not specify which

particular act exactly was committed. Clearly, then, the Search Warrant is a

“scatter shot warrant”.

11. Finally, plaintiff’s evidence is based on the mainly hearsay, misleading,

vague, speculative, irrelevant and bad faith testimonies of the NBI agents and their

witnesses.

12. In support of this Motion, respondents seek the recall of the NBI agents and

their witnesses to the witness stand to be cross-examined by respondents for the purpose

of exposing and highlighting the mostly inadmissible nature of their testimonies and of

bringing to light the ulterior motives of the witnesses, especially that of the bookkeeper’s.

(See ruling in Quintero vs. The National Bureau of Investigation, supra, where the

Supreme Court held that “An ulterior motive to an application for search warrant should

alert the judge to possible misrepresentations.”) Respondents respectfully submit that

while the Honorable Court had asked searching questions, they were not sufficiently

searching because the Honorable Court did not then have full possession of the facts. To

this end, respondents request that subpoenas be issued to the following persons, directing

them to appear and testify on cross-examination on 18 September 2012, at 8:30 a.m., to

wit:

i. Atty. Dennis R. Villaser, with address at NBI Anti-Graft Division, NBI

Building, Taft Avenue, Manila;

ii. Atty. Erickson Donn R. Mercado, with address at NBI Anti-Graft Division,

NBI Building, Taft Avenue, Manila;

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iii. Celestina Medina Aguilar, with address at No. 938 R. Santos Street, Caridad,

Cavite City; and

i.v. Ma. Analie L. Villacorte, with residence at 1211 Balete Street, Gulod, Brgy.

Daniel Fajardo, Las Pinas City and at c/o NBI Anti-Graft Division, NBI Building, Taft

Avenue, Manila.

P R A Y E R

WHEREFORE, respondents respectfully pray for:

1. the issuance of subpoenas to: (a) Atty. Dennis R. Villaser, with address at NBI

Anti-Graft Division, NBI Building, Taft Avenue, Manila; (b) Atty. Erickson Donn R.

Mercado, with address at NBI Anti-Graft Division, NBI Building, Taft Avenue, Manila;

(c) Celestina Medina Aguilar, with address at No. 938 R. Santos Street, Caridad, Cavite

City; and (d) Ma. Analie L. Villacorte, with residence at 1211 Balete Street, Gulod, Brgy.

Daniel Fajardo, Las Pinas City and at c/o NBI Anti-Graft Division, NBI Building, Taft

Avenue, Manila; directing them to appear and testify on 18 September 2012, at 8:30 a.m.;

2. the quashal of the Search Warrant for lack of probable cause; and

3. the immediate return to Visayan Forum Foundation, Inc. of the seized personal

properties.

Respondents ask for other relief as may be just and equitable under the premises.

Pasig City for Quezon City, 24 September 2012.

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FLAMINIANO ARROYO & DUEÑAS Counsel for Respondents Unit 1002, One Corporate Centre Meralco Avenue cor. Dona Julia Vargas Avenue Ortigas Center, Pasig City By:

JOSE B. FLAMINIANO

Roll of Attorney No. 5736 IBP 848361; 1/11/11; Quezon City PTR 4645003; 1/12/11; Quezon City MCLE Compliance No. III - 0015206; 5/06/10 And by:

J. ALBERTO C. FLAMINIANO

Roll of Attorney No. 32382 IBP Lifetime No. 06212; Quezon City PTR 5922249; 1/11/10; Pasig City MCLE Compliance No. III - 0008076 And by: LAURENCE HECTOR B. ARROYO Roll of Attorney No. 39749 IBP Lifetime No. 03321; 1/05/2004; Makati City PTR 1183102; 1/05/11; Taguig City MCLE Compliance No. II - 006666; 8/10/2007

COPY FURNISHED

AND NOTICE OF HEARING

THE BRANCH CLERK OF COURT Atty. Erickson Donn R. Mercado BY REG. MAIL / BY HAND Atty. Dennis R. Villaser National Bureau of Investigation, Anti-Graft Division NBI Building, Taft Avenue Manila Office of the Solicitor General BY REG. MAIL / BY HAND 134 Amorsolo Street 1229 Legasp Village Makati City

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Greetings: Please take notice that the foregoing Motion will be submitted for the consideration of and approval by the Honorable Court on 28 September 2012, at 8:30 a.m. LAURENCE HECTOR B. ARROYO