Prosecutor's Memorandum Re Subpoena and Search Warrants

8/3/2019 Prosecutor's Memorandum Re Subpoena and Search Warrants

1/8

REPUBLIC OF THE PHILIPPINESCONGRESS OF THE PHILIPPINES

SENATESITTING AS THE IMPEACHMENT COURT

IN THE MATTER OF THEIMPEACHMENT OF RENATO C.CORONA AS CHIEF JUSTICE OF THESUPREME COURT OF THEPHILIPPINES,

REPRESENTATIVES NIEl C. TUPAS,JR., JOSEPH EMILIO A. ABAYA,LORENZO R. TANADA, III,REYNALDO V. UMALI, ARLENE J.BAG-AO, et aI.,

Complainants.

'12 FEB 20 Pl :42I

CASE NO, 002-2011

x -------------------------------------------------------------------------------------------------------- x

MEMORANDUM(Re: Subpoenae and Search Warrants)

The HOUSE OF REPRESENTATIVES, through its PROSECUTORS, respectfullystates:

1. At the 14 February 2012 hearing, the parties were directed to submita memorandum on the distinction between subpoenae and search warrants, andother matters related thereto.

2. The prosecution respectfully submits that subpoenae and searchwarrants are fundamentally distinct and different from each other. Consequently,


2/8

2

the rules and standards for search warrants are not applicable to the subpoenaeissued by this Honorable Impeachment Court.

3. As defined by the Rules of Court, a "subpoena is a process directedto a person requiring him to attend and to testify at the hearing or the trial of anaction, or at an investigation conducted by competent authority, or for the takingof his deposition. It may also require him to bring with him any books,documents, or other things under his control, in which case it is called a subpoenaduces tecum" (Rule 21, Section 1).

4. On the other hand, as again defined by the Rules of Court, "a searchwarrant is an order in writing issued in the name of the People of the Philippines,signed by a judge and directed to a peace officer, commanding him to search for

personal property described therein and bring it before the court" (Rule 126,Section 1).

5. The basic differences between subpoenae and search warrants are asfollows (inter alia):

(A) As to purpose - A subpoena is issued to require a person to testify(ad testificandum) or to bring documents or things (duces tecum). A searchwarrant is issued to order a peace officer to make a search for personal propertyand to bring it before the court.

(8) As to subject covered - A subpoena (duces tecum) covers anydocuments or things which are prima facie relevant to a case or investigation (seeRule 21, Sections 1 and 3). On the other hand, a search warrant covers onlypersonal property which is "(a) Subject of the offense; (b) Stolen or embezzled


3/8

3

and other proceeds, or fruits of the offense; or (c) Used or intended to be used asthe means of committing an offense" (Rule 126, Section 3).

(C) As to requisites for issuance - There are no specific requirementsfor the issuance of a subpoena. It is sufficient that a party to an action requestsfo r the same. The requesting party does not even have to notify the other partyof such request:

"Requests by a party for the issuance of subpoenas do notrequire notice to other parties to the action. No violation of dueprocess results by such lack of notice since the other parties wouldhave ample opportunity to examine the witnesses and documentssubpoenaed once they are presented in court."l

Rule 21 does not require the requesting party to state the purpose of the

testimony sought to be elicited from the person sought to be subpoenaed, or thedocuments/things sought to be produced. The requesting party is not evenrequired to explain the relevance of the documents/things to be produced, itbeing enough that they "appear to the court prima facie relevant" (Rule 21,Section 3). If the opposing party disagrees and believes that the "relevancy of thebooks, documents or things does not appear," he may move for the quashal ofthe subpoena (Rule 21, Section 4). As the movant, the opposing party will havethe burden of establishing that the documents or things are irrelevant.

In contrast, the requirements fo r the issuance of a search warrant are verystringent, as per the Constitution (Article III, Section 2), the Rules of Court (Rule126, Section 4) and jurisprudence. "[T}he requisites of a valid search warrant are:

1 Adorio vs. Bersamin, G.R. No. 120074, June 10, 1997.


4/8

4

(1) probable cause is present; (2) such presence is determined personally by thejudge; (3) the complainant and the witnesses he or she may produce arepersonally examined by the judge, in writing and under oath or affirmation; (4)the applicant and the witnesses testify on facts personally known to them; and (5)the warrant specifically describes the person and place to be searched and thethings to be seized."2

(0) As to particularity of description - A search warrant must"particularly describe[e] the place to be searched and the things to be seized"(Rule 126, Section 4). In a subpoena, it is enough that it "contain a reasonabledescription of the books, documents or things demanded" (Rule 21, Section 3). Inone case 3 involving a subpoena duces tecum "to bring the complete original case

dockets of the refunds granted to Limtuaco and La Tondefia," the Supreme Courtheld that the said subpoena "indeed particularly and sufficiently described therecords to be produced."

(E) As to effect of quashal - When a search warrant is quashed, theevidence obtained thereby may be suppressed upon motion. This is expresslysanctioned by Rule 126, Section 14.4 "Evidence procured on the occasion of anunreasonable search and seizure is deemed tainted fo r being the proverbial fruitof a poisonous tree and should be excluded."s This exclusionary rule is based onthe assumption that "the exclusion of unlawfully seized evidence [is] the only2 Nala vs. Barroso, G.R. No. 153087, August 7, 2003, citing Paper Industries Corporation of the Philippines v.Asuncion, 366 Phil. 717, 736737 (1999).'Bureau of Internal Revenue vs. Office of the Ombudsman, G.R. No. 115103, April 11, 2002.4 "SECTION 14. Motion to quash a search warront or to suppress evidence; where to file. - A motion to quash asearch warrant and/or to suppress eVidence obtained thereby may be filed in and acted upon only by the courtwhere the action has been instituted. If no criminal action has been instituted, the motion may be filed in andresolved by the court that issued the search warrant. However, if such court failed to resolve the motion and acriminal case is subsequently filed in another court, the motion shall be resolved by the lat ter court."5 People v. Martinez, G.R. No. 191366, December 13, 2010.


5/8

5

practical means of enforcing the constitutional injunction against unreasonablesearches and seizures.,,6

In contrast, there is no exclusionary rule or exclusionary effect when asubpoena is quashed. A subpoena does not constitute a "search and seizure," soany defect in the subpoena does not taint the evidence resulting therefrom. Rule21, Section 4, on the quashal of subpoena, does not provide for the exclusion orsuppression of evidence resulting from a quashed subpoena:

"Section 4. Quashing a subpoena. - The court may quash asubpoena duces tecum upon motion promptly made and, in anyevent, at or before the time specified therein if it is unreasonable andoppressive, or the relevancy of the books, documents or things doesnot appear, or if the person in whose behalf the subpoena is issuedfails to advance the reasonable cost of the production thereof.

"The court may quash a subpoena ad testificandum on theground that the witness is not bound thereby. In either case, thesubpoena may be quashed on the ground that the witness fees andkilometrage allowed by these Rules were not tendered when thesubpoena was served (emphasis supplied}."

Notably, Rule 21, Section 4 provides that a motion to quash subpoena mayonly be made "at or before the time specified therein," which implies that thesubpoena can no longer be quashed after it has already been implemented orcomplied with (e.g., when the witness has already testified or when thedocuments have already been brought). After a subpoena has already beenimplemented, the opposing party can no longer ask for its quashal or fo r the

suppression or exclusion of the evidence yielded by the subpoena.

6 People VS. Francisco, G.R. No. 129035, August 22, 2002.


6/8

6

The opposing party is not devoid of remedy. If he believes that theevidence yielded by the subpoena are irrelevant or otherwise inadmissible, his

remedy is to raise such objections when the said evidence are formally offered.7

If he believes that there has been a violation of the law in the request for thesubpoena (e.g., violation of secrecy of bank deposits, if any), he may file acomplaint for such violation in the proper forum.

The case of Ejercito v. Sandiganbayan (G.R. Nos. 157294-95, November 30,2006) teaches that the exclusionary rule cannot be read into the law unless thereis an express or specific provision to that effect. The law on secrecy of bankdeposits (R.A. 1405, and even R.A. 6426) does not provide for such exclusionaryrule. Therefore, no such exclusionary rule may be applied. Said the Supreme

Court:

"Petitioner's attempt to make the exclusionary rule applicableto the instant case fails. R.A. 1405, it bears noting, nowhereprovides that an unlawful examination of bank accounts shallrender the evidence obtained therefrom inadmissible in evidence.Section 5 of R.A. 1405 only states that '[a]ny violation of this law willsubject the offender upon conviction, to an imprisonment of notmore than five years or a fine of not more than twenty thousandpesos or both, in the discretion of the court.'

xxx xxx xxxThe same principle was reiterated in U.S. v. Thompson:

7 As the Honorable Senate President explained on February 6, 2012, questions of admissibility are premature atthis point because the prosecution has no t yet made a formal offer of documentary evidence -

(lThe Presiding Officer. x x x I would like to explain that the Resolution of this Court wassimply to authorize the issuance of a subpoena, and whether those evidence subpoenaed areadmissible evidence given the fact that they apparently appeared in violation of eXisting lawsis a question that must be resolved in due course. I hope that is understood. We are notprejudging the admissibility or non-admissibility of this evidence. And this issue will come up atthat paint when the subpoenaed material and testimonies are offered in evidence. And all ofthese incidental issues will be opened fo r scrutiny at the proper time. X x x" (Pages 35 to 36 ofthe February 6, 2012 Record of the Senate Sitting As An Impeachment Court; Emphasis supplied)


7/8

7

. . . When Congress specifically designates aremedy for one of its acts, courts generally presume thatit engaged in the necessary balancing of interests indetermining what the appropriate penalty should be.See Michaelian, 803 F.2d at 1049 (citing cases); Frazin,780 F.2d at 1466. Absent a specific reference to anexclusionary rule, it is not appropriate for the courts toread such a provision into the act." [Emphasis andunderscoring supplied]

RESPECTFULLY SUBMITIED.

Pasay City, Manila. 20 February 2012.


8/8

By:

THE HOUSE OF REPRESENTATIVESRepublic of the Philippines

HOUSE OF REPRESENTATIVESPROSECUTORS

Copy Furnished (By Personal Service):Justice Serafin R. Cuevas (Ret.) et al.Counsel fo r Respondent Chief Justice Renata CoronaSuite 1902 Security Bank Centre6776 Ayala AvenueMakati City, Philippines 1226

Documents

Prosecutor's Memorandum Re Subpoena and Search Warrants