SECOND DIVISION

[G.R. No. 117412.  December 8, 2000]

PEOPLE OF THE PHILIPPINES, petitioner, vs. COURT OF APPEALS and VALENTINO C. ORTIZ, respondents.

D E C I S I O N

QUISUMBING, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking the reversal of the decision of the Court of Appeals promulgated on September 27, 1994, in CA-G.R. SP No. 301291. The decretal portion of the assailed decision reads:

“WHEREFORE, the petition is GRANTED. Accordingly the respondent court’s Order of 25 January 1993 is hereby SET ASIDE and the firearms and ammunition irregularly and unreasonably seized pursuant to the search warrant of 13 August 1992 are declared inadmissible in evidence for any purpose in any proceeding, consequently to be disposed of by the respondent court pursuant to applicable law.

“SO ORDERED.”1 Rollo, p. 54.1

The facts of the present case, as adopted from the findings of the Office of the Solicitor General, are as follows:

On August 13, 1992, operatives of the Philippine National Police- Special Investigation Service Command (PNP-CISC) were conducting a surveillance of suspected drug-pushing activities at the Regine Condominium, Makati Avenue, Makati City. Among their targeted suspects was private respondent Valentino “Toto” Ortiz. Spotting the latter alighting from his Cherokee jeep and noting that he had a suspiciously bulging pants pocket,2 Id. at 55.2 the police officers immediately moved in and accosted him. Ortiz was frisked and yielded an unlicensed .25 caliber “Raven” automatic pistol SN-930291 with one magazine and seven rounds of live .25 caliber ammunition. A search of his vehicle resulted in the retrieval of a sealed cellophane packet of methylamphetamine hyrdrochloride or “shabu” from the glove compartment. The police then took private respondent into custody.

Later that same day, the PNP-CISC applied for a search warrant against private respondent for violation of P. D. 18663 The decree is entitled “Codifying The Laws On Illegal/Unlawful Possession, Manufacture, Dealing In, Acquisition Or Disposition Of Firearms, Ammunition Or Explosives Or Instruments Used In The Manufacture Of Firearms, Ammunition Or Explosives, And Imposing Stiffer Penalties For Certain Violations Thereof And For Relevant Purposes.”3 with the Metropolitan Trial Court (MTC) of Parañaque, Branch 77. Supporting the application were the depositions of two police officers asserting that they had personal knowledge that private respondent was keeping in his residence at 148-D Peru Street, Better Living Subdivision, Parañaque, Metro Manila, the following unlicensed firearms: “Baby armalite M-16;4 Properly, the US caliber 5.56mm (.223) Colt CAR-15 or XM-177 carbine version of the standard Colt M-16/M-16A1 assault rifle.4 Shotgun, 12 g; pistol cal. 9mm; pistol cal. 45 and with corresponding ammunitions (sic)”5 Supra Note 1, at 57.5

On the same day, the MTC judge issued Search Warrant No. 92-94 commanding the PNP officers “to make an immediate search at any reasonable hour of the day or night of the house/s, closed receptacles and premises above-described and forthwith seize and take possession”6 Id. at 58.6 the personal property subject of the offense described in the warrant.

Armed with aforesaid warrant, a PNP CISC-Special Investigation Group (SIG) team, accompanied by a representative of the MTC judge and a barangay security officer, went to private respondent’s residence in Parañaque at about 7:30 P.M. of the same date to search said premises. Private respondent’s wife and their child’s nanny were both present during the search, but neither consented to be a witness to the search. The search resulted in the seizure of the following unlicensed firearms and ammunition:

“a. One (1) pistol cal. 9mm SN-1928923

b. One (1) M16 Rifle (Baby Armalite) SN-9015620

c. One (1) 12 gauge shotgun SN-K593449

d. Six (6) live ammo. for shotgun.

e. One hundred eighteen (118) live ammo for pistol cal. 9mm

f. Sixteen (16) live ammo. for M16 rifle

g. Thirty (30) live ammo. for pistol cal. 45

h. One (1) magazine for pistol cal. 9mm

i. One (1) magazine (short) for M16 rifle.”7 Id. at 59.7

Private respondent’s wife signed a receipt for the seized firearms and ammunition.

On August 17, 1992, a return of search warrant was executed and filed by the police with the issuing court.

At the preliminary investigation, the investigating state prosecutor ruled the warrantless search of private respondent’s person and jeep in Makati invalid for violating his constitutional right against unreasonable searches and seizures.8 Const. art. III, sec. 2.8 However, the prosecutor found the search conducted in Parañaque valid.

On August 25, 1992, private respondent was charged before the Regional Trial Court of Makati, in Criminal Case No.92-5475, with violating Section 1 of P.D. No. 1866. The information alleged:

“That on or about August 13, 1992 in the Municipality of Parañaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, above-named accused, did then and there, wilfully (sic), unlawfully and feloniously have in his possession,

a. One (1) pistol cal. 9mm SN-1928923

b. One (1) M16 Rifle (Baby Armalite) SN-9015620

c. One (1) 12 gauge shotgun SN-K593449

d. Six (6) live ammo. for shotgun.

e. One hundred eighteen (118) rds ammo for pistol cal. 9mm

f. Sixteen (16) live ammos (sic). for M16 rifle

g. Thirty (30) live ammo for pistol cal. 45

without lawful authority therefore.

CONTRARY TO LAW.”9 Supra Note 7 at 71.9

On September 25, 1992, private respondent moved for reinvestigation alleging that the dismissal of the charges against him arising from the illegal search and seizure in Makati also applied to the search conducted in his house in Parañaque. The trial court denied the same. Private respondent moved for reconsideration and deferral of arraignment, but said motions were likewise denied.

On November 23, 1992, private respondent moved to quash the search warrant on the following grounds: (1) that he was not present when his house was searched since he was then detained at Camp Crame; (2) that the search warrant was not shown to his wife; and (3) that the search was conducted in violation of the witness-to-search rule. The trial court denied the motion to quash for lack of merit.

On February 5, 1993, private respondent filed with the Court of Appeals, CA-G.R. SP No. 30129, for certiorari and prohibition of the order of the trial court denying his motion to quash search warrant.

On September 27, 1994, the appellate court promulgated its decision declaring as inadmissible in evidence the firearms and ammunition seized pursuant to Search Warrant No. 92-94.

Hence, the instant case anchored on the following assignments of error:

I

THE RESPONDENT COURT OF APPEALS ERRED IN HOLDING THAT EXECUTION OF THE SEARCH WARRANT AT 7:30 P.M. WAS UNREASONABLE, DESPITE THE FACT THAT THE WARRANT ITSELF AUTHORIZED SEARCH AT NIGHT.

II

THE RESPONDENT COURT OF APPEALS ERRED IN HOLDING THAT THE IMPLEMENTATION OF THE SEARCH WARRANT VIOLATED SECTION 7 RULE 126 OF THE RULES OF CRIMINAL PROCEDURE.

III

THE RESPONDENT COURT OF APPEALS ERRED IN HOLDING THAT NO RETURN WAS PREPARED WHEN ANNEX “G” WAS PREPARED AND SUBMITTED BY CHIEF INSP. JESUS A. VERSOZA, GROUP COMMANDER OF SIG, CISC, CAMP CRAME.

IV

THE RESPONDENT COURT OF APPEALS ERRED IN CONCLUDING THAT THE PROSECUTION INVOKED A PRESUMPTION WITHOUT SHOWING BY LEGALLY ADMISSIBLE EVIDENCE THAT THE SEARCH WARRANT WAS IMPLEMENTED IN ACCORDANCE WITH LAW.

Petitioner’s grounds for this petition may be reduced to one issue: Whether or not the court a quo erred in holding that the firearms and ammunition seized from private respondent’s house are inadmissible as evidence for being the fruits of an illegal search.

The appellate court ruled the search wanting in due process for having been done at an unreasonable time of the evening causing “inconvenience” to the occupants of private respondent’s house, especially as there was no showing how long the nighttime search lasted. The court a quo applied the doctrine in Asian Surety & Insurance Co. v. Herrera, 54 SCRA 312 (1973), where we invalidated a nighttime search conducted on the basis of a warrant which did not specify the time during which the search was to be made.

Before us, petitioner contends that Asian Surety is inapplicable since the search warrant specified that the search be made at a reasonable hour of day or night.

The rule governing the time of service of search warrants is Section 8 of Rule 126 of the Rules of Court, which provides:

“Sec. 8. Time of making search. – The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night.”

The general rule is that search warrants must be served during the daytime. However, the rule allows an exception, namely, a search at any reasonable hour of the day or night, when the application asserts that the property is on the person or place ordered to be searched. In the instant case, the judge issuing the warrant relied on the positive assertion of the applicant and his witnesses that the firearms and ammunition were kept at private respondent’s residence. Evidently, the court issuing the warrant was satisfied that the affidavits of the applicants clearly satisfied the requirements of Section 8, Rule 126 of the Rules of Court. The rule on issuance of a search warrant allows for the exercise of judicial discretion in fixing the time within which the warrant may be served, subject to the statutory requirement10 Rules of Court, Rule 126, Sec. 9.10 fixing the maximum time for the execution of a warrant.11 Simmons v. State, 286 P2d. 296.11 We have examined the application for search warrant,12 Supra Note 7, at 56.12 and the deposition of the witnesses supporting said application,13 Id. at 57.13 and find that both satisfactorily comply with the requirements of Section 8, Rule 126. The inescapable conclusion is that the judge who issued the questioned warrant did not abuse his discretion in allowing a search “at any reasonable hour of the day or night.” Absent such abuse of discretion, a search conducted at night where so allowed, is not improper.14 State v. Eichhorn, 353 NE 2d 861.14

As prescribed in Adm. Circular No. 13 of the Supreme Court dated October 1, 1985:

“e.  Search warrants must be in duplicate, both signed by the judge.  The duplicate copy thereof must be given to the person against whom the warrant is issued and served.  Both copies of the warrant must indicate the date until when the warrant shall be valid and must direct that it be served in the daytime.  If the judge is satisfied that the property is in the person or in the place ordered to be searched, a direction may be inserted in the warrants that it be served at any time of the day or night;”

But was the time during which the search was effected “reasonable?”

Petitioner submits that 7:30 P.M. is a reasonable time for executing a search warrant in the metropolis. We find no reason to declare the contrary. The exact time of the execution of a warrant should be left to the discretion of the law enforcement officers.15 State v. Moreno, 222 Kan 149, 563 P2d 1056.15 And in judging the conduct of said officers, judicial notice may be taken not just of the realities of law enforcement, but also the prevailing conditions in the place to be searched. We take judicial notice that 7:30 P.M. in a suburban subdivision in Metro Manila is an hour at which the residents are still up-and-about. To hold said hour as an unreasonable time to serve a warrant would not only hamper law enforcement, but could also lead to absurd results, enabling criminals to conceal their illegal activities by pursuing such activities only at night.16 US v. Plemmons, 336 F2d 731.16

The policy behind the prohibition of nighttime searches in the absence of specific judicial authorization is to protect the public from the abrasiveness of official intrusions.17 State v. Schmeets, 278 NW 2d 401.17 A nighttime search is a serious violation of privacy.18 People v. Watson, 142 Cal. Rptr 245, 75 CA 3d 593.18 In the instant case, there is no showing that the search which began at 7:30 P.M. caused an “abrupt intrusion upon sleeping residents in the dark” 19 US v. Young, 877 F2d 1099; US v. Escott, 205 F. Supp. 196; US v. Joseph, 174 F. Supp. 439, affd. 278 F2d 504, cert den 364 US 823, 5 L.Ed. 2d 52, 81 S. Ct. 59.19 or that it caused private respondent’s family such prejudice as to make the execution of the warrant a voidable act. In finding that the duration of the search could have caused “inconvenience” for private respondent’s family, the appellate court resorted to surmises and conjectures. Moreover, no exact time limit can be placed on the duration of a search.20 State v. Williams, 169 Conn 322, 363 A2d 72.20

But was the witness-to-search rule violated by the police officers who conducted the search notwithstanding the absence of private respondent and despite the refusal of the members of his household to act as witnesses to the search?

The witness-to-search rule is embodied in Section 7 of Rule 126, which reads:

“Sec. 7. Search of house, room, or premise, to be made in presence of two witnesses. – No search of a house, room, or any other premise shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, in the presence of two witnesses of sufficient age and discretion residing in the same locality.”

Petitioner submits that there was no violation of the aforementioned rule since the searchers were justified in availing of two witnesses of sufficient age and discretion, after respondent’s wife and maid refused. The regularity of the search is best evidenced by the “Certification of Orderly Search” and the receipt of the property seized signed by respondent’s wife.

We find merit in the petitioner’s argument that private respondent’s wife had no justifiable reason to refuse to be a witness to the search and that her refusal to be a witness cannot hamper the performance of official duty. In the absence of the lawful occupant of the premises or any member of his family, the witness-to-search rule allows the search to be made “in the presence of two witnesses of sufficient age and discretion residing in the same locality.” There was no irregularity when the PNP-CISC team asked the bailiff of the Parañaque court and the barangay security officer to act as witnesses to the search. To hold otherwise would allow lawful searches to be frustrated by the mere refusal of those required by law to be witnesses.

In our view, the conduct of the nighttime search was reasonable under the circumstances in this case. The unlicensed firearms and ammunition taken from private respondent’s residence pursuant to Search Warrant No. 92-94, are admissible in evidence against private respondent.

WHEREFORE, the petition is GRANTED. The assailed decision dated September 24, 1994 of the Court of Appeals in CA-G.R. No. SP 30129 is REVERSED and NULLIFIED. The firearms and ammunition seized from the residence of the Valentino C. Ortiz, pursuant to the search warrant issued by the Metropolitan Trial Court of Parañaque, dated August 13, 1992, shall be admissible as evidence in proceedings instituted by the State.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.