FACTS:

Petitioners filed the present Petitions under Rule 45 of the Rules of Court to set aside the Decision and the Resolution of the CA reversing the quashal of the search warrants previously issued by the RTC.

The applications for warrants to search the office premises of petitioner WWC, and of petitioner Planet Internet, alleged to be conducting illegal toll bypass operations, which amounted to theft and violation of PD No. 401 (Penalizing the Unauthorized Installation of Water, Electrical or Telephone Connections, the Use of Tampered Water or Electrical Meters and Other Acts), to the damage and prejudice of PLDT.

Petitioners also committed theft, because through their misuse of PLDT phone lines/numbers and equipment and with clear intent to gain, they illegally stole business and revenues that rightly belong to PLDT.

Moreover, they acted contrary to the letter and intent of Republic Act (R.A.) No. 7925, because in bypassing the IGF of PLDT, they evaded the payment of access and bypass charges in its favor while “piggy-backing” on its multi-million dollar facilities and infrastructure, thus stealing its business revenues from international long distance calls.

Further, petitioners acted in gross violation of Memorandum Circular No. 6-2-92 of the National Telecommunications Commission (NTC) prohibiting the use of customs premises equipment (CPE) without first securing type approval license from the latter.

The RTC granted the application for search warrants. Accordingly, the warrants were issued against the office premises of petitioners, authorizing police officers to seize various items.

Over a hundred items were seized, including 15 central processing units (CPUs), 10 monitors, numerous wires, cables, diskettes and files, and a laptop computer. Planet Internet notes that even personal diskettes of its employees were confiscated; and areas not devoted to the transmission of international calls, such as the President’s Office and the Information Desk, were searched. Voltage regulators, as well as reserve and broken computers, were also seized.

Petitioners WWC and Cherryll Yu, and Planet Internet filed their respective motions to quash the search warrants, citing basically the same grounds:

(1) the search warrants were issued without probable cause, since the acts complained of did not constitute theft;

(2) toll bypass, the act complained of, was not a crime;

(3) the search warrants were general warrants; and

(4) the objects seized pursuant thereto were “fruits of the poisonous tree.”

The RTC granted the motions to quash on the ground that the warrants issued were in the nature of general warrants. Thus, the properties seized under the said warrants were ordered released to petitioners.

PLDT moved for reconsideration, but its motion was denied on the ground that it had failed to get the conformity of the City Prosecutor prior to filing the motion, as required under Section 5, Rule 110 of the Rules on Criminal Procedure.

Petitioners separately moved for reconsideration of the CA ruling which was subsequently denied.

ISSUES:

I. Whether the CA erred in giving due course to PLDT’s appeal despite the following procedural infirmities:

1. PLDT, without the conformity of the public prosecutor, had no personality to question the quashal of the search warrants;
2. PLDT assailed the quashal orders via an appeal rather than a petition for certiorari under Rule 65 of the Rules of Court.

II. Whether the assailed search warrants were issued upon probable cause, considering that the acts complained of allegedly do not constitute theft.

III. Whether the CA seriously erred in holding that the assailed search warrants were not general warrants.

RULING

I.

1. An application for a search warrant is not a criminal action; conformity of the public prosecutor is not necessary to give the aggrieved party personality to question an order quashing search warrants.

Petitioners contend that PLDT had no personality to question the quashal of the search warrants without the conformity of the public prosecutor. They argue that it violated Section 5, Rule 110 of the Rules of Criminal Procedure, to wit:

SEC. 5. Who must prosecute criminal actions.–All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor.

The above provision states the general rule that the public prosecutor has direction and control of the prosecution of “(a)ll criminal actions commenced by a complaint or information.” However, a search warrant is obtained, not by the filing of a complaint or an information, but by the filing of an application therefor.

Furthermore, as we held in Malaloan v. Court of Appeals, an application for a search warrant is a “special criminal process,” rather than a criminal action:

For, indeed, a warrant, such as a warrant of arrest or a search warrant, merely constitutes process. A search warrant is defined in our jurisdiction as 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 and bring it before the court.

A search warrant is in the nature of a criminal process akin to a writ of discovery. It is a special and peculiar remedy, drastic in its nature, and made necessary because of a public necessity.

Accordingly, we sustain the CA’s ruling that the conformity of the public prosecutor is not necessary before an aggrieved party moves for reconsideration of an order granting a motion to quash search warrants.

2. An order quashing a search warrant, which was issued independently prior to the filing of a criminal action, partakes of a final order that can be the proper subject of an appeal.

Petitioners also claim that since the RTC ruling on the motions to quash was interlocutory, it cannot be appealed under Rule 41 of the Rules of Court. PLDT should have filed a Rule 65 petition instead. Petitioners cite, as authority for their position, Marcelo v. de Guzman. The Court held therein as follows:

But is the order of Judge de Guzman denying the motion to quash the search warrant and to return the properties seized thereunder final in character, or is it merely interlocutory?

In Cruz vs. Dinglasan, this Court, citing American jurisprudence, resolved this issue thus:

Where accused in criminal proceeding has petitioned for the return of goods seized, the order of restoration by an inferior court is interlocutory and hence, not appealable; likewise, a denial, by the US District Court, of defendant’s petition for the return of the articles seized under a warrant is such an interlocutory order. (56 C.J. 1253).

A final order is defined as one which disposes of the whole subject matter or terminates a particular proceeding or action, leaving nothing to be done but to enforce by execution what has been determined; on the other hand an order is interlocutory if it does not dispose of a case completely, but leaves something more to be done upon its merits.

Tested against this criterion, the search warrant issued xxx is indisputably of interlocutory character because it leaves something more to be done in the said criminal case, i.e., the determination of the guilt of the accused therein.

Petitioners’ reliance upon Marcelo is misplaced.

An application for a search warrant is a judicial process conducted either as an incident in a main criminal case already filed in court or in anticipation of one yet to be filed. Whether the criminal case (of which the search warrant is an incident) has already been filed before the trial court is significant for the purpose of determining the proper remedy from a grant or denial of a motion to quash a search warrant.

Where the search warrant is issued as an incident in a pending criminal case, as it was in Marcelo, the quashal of a search warrant is merely interlocutory. There is still “something more to be done in the said criminal case, i.e., the determination of the guilt of the accused therein.”

In contrast, where a search warrant is applied for and issued in anticipation of a criminal case yet to be filed, the order quashing the warrant (and denial of a motion for reconsideration of the grant) ends the judicial process. There is nothing more to be done thereafter.

Thus, the CA correctly ruled that Marcelo does not apply to this case. Here, the applications for search warrants were instituted as principal proceedings and not as incidents to pending criminal actions. When the search warrants issued were subsequently quashed by the RTC, there was nothing left to be done by the trial court. Thus, the quashal of the search warrants were final orders, not interlocutory, and an appeal may be properly taken therefrom.

II.

Trial judges determine probable cause in the exercise of their judicial functions. A trial judge’s finding of probable cause for the issuance of a search warrant is accorded respect by reviewing courts when the finding has substantial basis.

Petitioners claim that no probable cause existed to justify the issuance of the search warrants.

The rules pertaining to the issuance of search warrants are enshrined in Section 2, Article III of the 1987 Constitution:

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

In the issuance of a search warrant, probable cause requires “such facts and circumstances that would lead a reasonably prudent man to believe that an offense has been committed and the objects sought in connection with that offense are in the place to be searched.”

There is no exact test for the determination of probable cause in the issuance of search warrants. It is a matter wholly dependent on the finding of trial judges in the process of exercising their judicial function. They determine probable cause based on “evidence showing that, more likely than not, a crime has been committed and that it was committed” by the offender.

When a finding of probable cause for the issuance of a search warrant is made by a trial judge, the finding is accorded respect by reviewing courts:

x x x. It is presumed that a judicial function has been regularly performed, absent a showing to the contrary. A magistrate’s determination of probable cause for the issuance of a search warrant is paid great deference by a reviewing court, as long as there was substantial basis for that determination. Substantial basis means that the questions of the examining judge brought out such facts and circumstances as would lead a reasonably discreet and prudent man to believe that an offense has been committed, and the objects in connection with the offense sought to be seized are in the place sought to be searched.

The Court will no longer disturb the finding of probable cause by the trial judge during the hearing for the application for the search warrants.

Upon a review of the records of the case, we understand that the Affidavits that accompanied the applications for the search warrants charge petitioners with the crime, not of toll bypass perse, but of theft of PLDT’s international long distance call business committed by means of the alleged toll bypass operations.

For theft to be committed in this case, the following elements must be shown to exist: (1) the taking by petitioners (2) of PLDT’s personal property (3) with intent to gain (4) without the consent of PLDT (5) accomplished without the use of violence against or intimidation of persons or the use of force upon things.

In Laurel v. Abrogar, we have already held that the use of PLDT’s communications facilities without its consent constitutes theft of its telephone services and business:

x x x “[I]nternational long distance calls,” the matter alleged to be stolen in the instant case, take the form of electrical energy, it cannot be said that such international long distance calls were personal properties belonging to PLDT since the latter could not have acquired ownership over such calls. PLDT merely encodes, augments, enhances, decodes and transmits said calls using its complex communications infrastructure and facilities. PLDT not being the owner of said telephone calls, then it could not validly claim that such telephone calls were taken without its consent.

It is the use of these communications facilities without the consent of PLDT that constitutes the crime of theft, which is the unlawful taking of the telephone services and business.

Therefore, the business of providing telecommunication and the telephone service are personal property under Article 308 of the Revised Penal Code, and the act of engaging in ISR is an act of “subtraction” penalized under said article. However, the Amended Information describes the thing taken as, “international long distance calls,” and only later mentions “stealing the business from PLDT” as the manner by which the gain was derived by the accused

In order to correct this inaccuracy of description, this case must be remanded to the trial court and the prosecution directed to amend the Amended Information, to clearly state that the property subject of the theft are the services and business of respondent PLDT.

Parenthetically, this amendment is not necessitated by a mistake in charging the proper offense, which would have called for the dismissal of the information under Rule 110, Section 14 and Rule 119, Section 19 of the Revised Rules on Criminal Procedure. To be sure, the crime is properly designated as one of theft. The purpose of the amendment is simply to ensure that the accused is fully and sufficiently apprised of the nature and cause of the charge against him, and thus guaranteed of his rights under the Constitution.

In Laurel, we reviewed the existing laws and jurisprudence on the generally accepted concept of personal property in civil law as “anything susceptible of appropriation.”

It includes ownership of telephone services, which are protected by the penal provisions on theft. We therein upheld the Amended Information charging the petitioner with the crime of theft against PLDT inasmuch as the allegation was that the former was engaged in international simple resale (ISR) or “the unauthorized routing and completing of international long distance calls using lines, cables, antennae, and/or air wave frequency and connecting these calls directly to the local or domestic exchange facilities of the country where destined.”

We reasoned that since PLDT encodes, augments, enhances, decodes and transmits telephone calls using its complex communications infrastructure and facilities, the use of these communications facilities without its consent constitutes theft, which is the unlawful taking of telephone services and business. We then concluded that the business of providing telecommunications and telephone services is personal property under Article 308 of the Revised Penal Code, and that the act of engaging in ISR is an act of “subtraction” penalized under said article.

Furthermore, toll bypass operations could not have been accomplished without the installation of telecommunications equipment to the PLDT telephone lines.

Thus, petitioners may also be held liable for violation of P.D. 401, to wit:

Section 1. Any person who installs any water, electrical, telephone or piped gas connection without previous authority from the Metropolitan Waterworks and Sewerage System, the Manila Electric Company, the Philippine Long Distance Telephone Company , or the Manila Gas Corporation, as the case may be, tampers and/or uses tampered water, electrical or gas meters, jumpers or other devices whereby water, electricity or piped gas is stolen; steals or pilfers water, electric or piped gas meters, or water, electric and/or telephone wires, or piped gas pipes or conduits; knowingly possesses stolen or pilfered water, electrical or gas meters as well as stolen or pilfered water, electrical and/or telephone wires, or piped gas pipes and conduits, shall, upon conviction, be punished with prision correccional in its minimum period or a fine ranging from two thousand to six thousand pesos, or both .

The peculiar circumstances attending the situation compel us to rule further on the matter of probable cause. During the hearing of the motions to quash the search warrants, the test calls conducted by witnesses for PLDT were shown to have connected to the IGF of either Eastern or Capwire to complete the international calls.

A trial judge’s finding of probable cause may be set aside and the search warrant issued by him based on his finding may be quashed if the person against whom the warrant is issued presents clear and convincing evidence that when the police officers and witnesses testified, they committed a deliberate falsehood or reckless disregard for the truth on matters that are essential or necessary to a showing of probable cause. In that case, the finding of probable cause is a nullity, because the trial judge was intentionally misled by the witnesses.

On the other hand, innocent and negligent omissions or misrepresentation of witnesses will not cause the quashal of a search warrant. In this case, the testimonies of Rivera and Gali that the test calls they conducted did not pass through PLDT’s IGF are true. They neglected, however, to look into the possibility that the test calls may have passed through other IGFs in the Philippines, which was exactly what happened. Nevertheless, the witnesses did not commit a deliberate falsehood. Even Planet Internet stated that the conclusion that the test calls bypassed all IGFs in the country was made “carelessly and haphazardly.”

On this score, the quashal of the search warrants is not in order. It must be noted that the trial judge did not quash the warrants in this case based on lack of probable cause. Instead, the issue before us is whether the CA erred in reversing the RTC, which ruled that the search warrants are general warrants.

III.

The requirement of particularity in the description of things to be seized is fulfilled when the items described in the search warrant bear a direct relation to the offense for which the warrant is sought.

Petitioners claim that the subject search warrants were in the nature of general warrants because the descriptions therein of the objects to be seized are so broad and all-encompassing as to give the implementing officers wide discretion over which articles to seize. In fact, the CA observed that the targets of the search warrants were not illegal per se, and that they were “innocuous goods.” Thus, the police officers were given blanket authority to determine whether the objects were legal or not, as in fact even pieces of computer equipment not involved in telecommunications or Internet service were confiscated.

On the other hand, PLDT claims that a search warrant already fulfills the requirement of particularity of description when it is as specific as the circumstances will ordinarily allow. Furthermore, it cites Kho v. Makalintal, in which the Court allowed leeway in the description of things to be seized, taking into consideration the effort and the time element involved in the prosecution of criminal cases.

The OSG likewise prayed for the reversal of the quashal of the search warrants in view of the OSG’s position that the scheme was a case of electronic theft, and that the items sought to be seized could not be described with calibrated precision.

According to the OSG, assuming that the seized items could also be used for other legitimate businesses, the fact remains that the items were used in the commission of an offense.

A general warrant is defined as “(a) search or arrest warrant that is not particular as to the person to be arrested or the property to be seized.” It is one that allows the “seizure of one thing under a warrant describing another” and gives the officer executing the warrant the discretion over which items to take.

SEC. 3. Personal property to be seized.–A search warrant may be issued for the search and seizure of personal property:

1. a) Subject of the offense;
2. b) Stolen or embezzled and other proceeds, or fruits of the offense; or
3. c) Used or intended to be used as the means of committing an offense.

SEC. 4. Requisites for issuing search warrant.–A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.

Within the context of the above legal requirements for valid search warrants, the Court has been mindful of the difficulty faced by law enforcement officers in describing the items to be searched, especially when these items are technical in nature, and when the extent of the illegal operation is largely unknown to them.

Vallejo v. Court of Appeals ruled as follows:

The things to be seized must be described with particularity. Technical precision of description is not required. It is only necessary that there be reasonable particularity and certainty as to the identity of the property to be searched for and seized, so that the warrant shall not be a mere roving commission. Indeed, the law does not require that the things to be seized must be described in precise and minute detail as to leave no room for doubt on the part of the searching authorities. If this were the rule, it would be virtually impossible for the applicants to obtain a warrant as they would not know exactly what kind of things to look for. Any description of the place or thing to be sarched that will enable the officer making the search with reasonable certainty to locate such place or thing is sufficient.

A search warrant fulfills the requirement of particularity in the description of the things to be seized when the things described are limited to those that bear a direct relation to the offense for which the warrant is being issued.

To our mind, PLDT was able to establish the connection between the items to be searched as identified in the warrants and the crime of theft of its telephone services and business. Prior to the application for the search warrants, Rivera conducted ocular inspection of the premises of petitioners a d was then able to confirm that they had utilized various telecommunications equipment consisting of computers, lines, cables, antennas, modems, or routers, multiplexers, PABX or switching equipment, a d support equipment such as software, diskettes, tapes, manuals and other documentary records to support the illegal toll bypass operations.”

In HPS Software and Communication Corp. v. PLDT, we upheld a similarly worded description of items to be seized by virtue of the search warrants, because these items had been sufficiently identified physically and s own to bear a relation to the offenses charged.

Petitions are DENIED.