Republic of the
Supreme Court
|
FELICIANO
GALVANTE, |
|
G.R.
No. 162808 |
|
Petitioner, |
|
|
|
|
|
Present: |
|
- versus - |
|
|
|
|
|
YNARES-SANTIAGO, J., |
|
HON.
ORLANDO C. CASIMIRO, |
|
Chairperson, |
|
Deputy
Ombudsman for the |
|
AUSTRIA-MARTINEZ, |
|
Military
and Other Law Enforcement |
|
CHICO-NAZARIO, |
|
Offices,
BIENVENIDO C. |
|
NACHURA, and |
|
BLANCAFLOR,
Director, DENNIS |
|
REYES, JJ. |
|
L.
GARCIA, Graft Investigation and |
|
|
|
Prosecution
Officer, SPO4 |
|
Promulgated: |
|
RAMIL
AVENIDO, PO1 EDDIE |
|
April 22, 2008 |
|
DEGRAN,
PO1 VALENTINO |
|
|
|
RUFANO,
and PO1 FEDERICO |
|
|
|
BALOLOT, |
|
|
|
Respondents. |
|
|
x - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - x
D E
C I S I O N
AUSTRIA-MARTINEZ, J.:
Assailed herein by Petition for Certiorari
and Mandamus under Rule 65 of the Rules of Court are the October 30,
2003 Resolution[1] of the Office of the Deputy Ombudsman for the
Military and Other Law Enforcement Offices - Office of the Ombudsman
(Ombudsman) which dismissed for lack of probable cause the criminal complaint,
docketed as OMB-P-C-02-0109-B, filed by Feliciano Galvante[2] (petitioner) against SPO4 Benjamin Conde, PO1 Ramil Avenido, PO1 Eddie Degran, PO1
Valentino Rufano, and PO1 Federico Balolot (private
respondents) for arbitrary detention, illegal search and grave threats; and the
January 20, 2004 Ombudsman Order[3]
which denied his motion for
reconsideration.
The facts are of record.
In the afternoon of May 14, 2001 at Sitio Cahi-an, Kapatungan, Trento, Agusan del Sur, private
respondents confiscated from petitioner one colt pistol super .38 automatic
with serial no. 67973, one short magazine, and nine super .38 live ammunitions.[4] The confiscated materials were covered by an expired
Memorandum Receipt dated
Consequently, the Assistant
Provincial Prosecutor filed against petitioner an Information[6] for Illegal Possession of Firearms and Ammunitions in
Relation to Commission on Elections (Comelec)
Resolution No. 3258, docketed as Criminal Case No. 5047, before the Regional
Trial Court (RTC), Prosperidad, Agusan
del Sur.
Pending resolution of Criminal Case
No. 5047, petitioner filed against private respondents an administrative case,
docketed as Administrative Case No. IASOB-020007 for Grave Misconduct, before the Internal
Affairs Service (IAS), Region XIII, Department of Interior and Local Government
(DILG);[7] and a criminal case, docketed as OMB-P-C-02-0109-B
for Arbitrary Detention, Illegal Search and Grave Threats, before the
Ombudsman.[8]
In
the
1.
That sometime on May 14,
2001 I left my house at around 1:00 o’clock in the afternoon after having lunch
for Sitio Cahi-an, Brgy. Kapatungan,
2.
That upon arrival at the
house of retired police Percival Plaza, together with Lorenzo Sanoria, Delfin Ramirez and Pedro
Ramas who asked for a ride from the highway in going
to Sitio Cahi-an, I
immediately went down of the jeep but before I could call Mr. Plaza, four
policemen in uniform blocked my way;
3.
That the four policemen
were [private respondents] PO1 Romil Avenido PNP, PO1 Valentino Rufano,
PNP both member of 142nd Company, Regional Mobile
Group and PO1 Eddie Degran PNP and PO1 Federico Balolot PNP members of 1403 Prov’l
Mobile Group, all of Bunawan Brook, Bunawan, Agusan del Sur; who all pointed their long firearms ready to fire [at]
me, having heard the sound of the release of the safety lock;
4.
That raising my arms, I
heard [private respondent] PO1 Avenido saying, “ANG
IMONG PUSIL, IHATAG” which means “Give me your firearm,” to which I answered,
“WALA MAN KO'Y PUSIL” translated as “I have no firearm,” showing my waistline
when I raised my T-shirt;
5.
That my other companions
on the jeep also went down and raised their arms and showed their waistline
when the same policemen and a person in civilian attire holding an armalite also pointed their firearms to them to which Mr.
Percival Plaza who came down from his house told them not to harass me as I am
also a former police officer but they did not heed Mr. Plaza's statements;
6.
That while we were
raising our arms [private respondent] SPO4 Benjamin Conde,
Jr. went near my owner type jeep and conducted a search. To which I asked them
if they have any search warrant;
7.
That after a while they
saw my super .38 pistol under the floormat of my jeep
and asked me of the MR of the firearm but due to fear that their long arms were
still pointed to us, I searched my wallet and gave the asked [sic] document;
8.
That immediately the
policemen left me and my companions without saying anything bringing with them
the firearm;
9.
That at about 2:30 p.m.,
I left Mr. Percival's house and went to Trento Police Station where I saw a person in civilian
attire with a revolver tucked on his waist, to which I asked the police
officers including those who searched my jeep to apprehend him also;
10.
That nobody among the
policemen at the station made a move to apprehend the armed civilian person so
I went to the office of Police Chief Rocacorba who
immediately called the armed civilian to his office and when already inside his
office, the disarming was done;
11.
That after the disarming
of the civilian I was put to jail with the said person by Police Chief Rocacorba and was released only at 4:00 o'clock in the
afternoon of May 16, 2001 after posting a bailbond;
12.
That I caused the
execution of this document for the purpose of filing cases of Illegal Search,
Grave Misconduct and Abuse of Authority against SPO4 Benjamin Conde, Jr., of Trento Police
Station; PO1 Ramil Avenido,
PO1 Velantino Rufano, PO1
Federico Balolot and PO1 Eddie Degran.[9]
Petitioner
also submitted the Joint Affidavit[10] of his witnesses, Lorenzo Sanoria
and
Private
respondent Conde filed a Counter-Affidavit dated
First,
he had nothing to do with the detention of petitioner as it was Chief of
Police/Officer-in-Charge Police Inspector Dioscoro Mehos Rocacorba who ordered the
detention. Petitioner himself admitted this fact in his own
Complaint-Affidavit;[11]
and
Second,
he denies searching petitioner's vehicle,[12] but admits that even though he was not armed with a
warrant, he searched the person of petitioner as the latter, in plain view, was
committing a violation of Comelec
Resolutions No. 3258 and No. 3328 by carrying a firearm in his person.
Private respondents Avenido, Degran, Rufano and Balolot filed their
Joint-Affidavit dated
1. that we executed a joint
counter-affidavit dated
2. that this statement is not accurate because the truth of the
matter is that the said handgun was taken by SPO4 BENJAMIN CONDE, JR., who was
acting as our team leader during the May 14, 2001 Elections, from the jeep of
Mr. Galvante after searching the same; and
3. that we noticed the aforementioned
discrepancy in our affidavit dated
Consequently, petitioner filed an
Affidavit of Desistance dated March 25, 2002 with both the IAS and Ombudsman,
absolving private respondents Avenido, Degran, Rufano and Balolot, but maintaining that private respondent Conde alone be prosecuted in both administrative and
criminal cases.[14]
On
Meanwhile,
in Criminal Case No. 5047, petitioner filed with the RTC a Motion for Preliminary
Investigation and to Hold in Abeyance the Issuance of or Recall the Warrant of
Arrest.[16] The RTC
granted the same in an Order[17]
dated
The
RTC granted the prosecution's motion to dismiss in an Order[20]
dated
Apparently
unaware of what transpired in Criminal Case No. 5047, Ombudsman Investigation & Prosecution
Officer Dennis L. Garcia issued in OMB-P-C-02-0109-B, the October 30, 2003
Resolution, to wit:
After
a careful evaluation, the undersigned prosecutor finds no probable cause for
any of the offenses charged against above-named respondents.
The
allegations of the complainant failed to establish the factual basis of the
complaint, it appearing from the records that the incident stemmed from a
valid warrantless arrest. The subsequent
execution of an affidavit of desistance by the complainant rendered the
complaint even more uncertain and subject to doubt, especially so since it
merely exculpated some but not all of the respondents. These
circumstances, coupled with the presumption of regularity in the performance of
duty, negates any criminal liability on the part of the respondents.
WHEREFORE,
premises considered, it is hereby recommended that the above-captioned case be dismissed for lack of probable cause.[21] (Emphasis
supplied)
Upon the recommendation of Director Bienvenido C. Blancaflor, Deputy
Ombudsman for the Military Orlando C. Casimiro
(Deputy Ombudsman) approved the
In
his Motion for Reconsideration,[23] petitioner called the attention of the Ombudsman to
the earlier IAS Decision, the Reinvestigation with Motion to Dismiss of
Prosecutor II Eliseo Diaz, Jr. and the RTC Order, all
of which declared the warrantless search conducted by
private respondents illegal,[24] which are contradicted by the October 30, 2003
Ombudsman Resolution declaring the warrantless search
legal.
The
Ombudsman denied petitioner's motion for reconsideration on the ground that the latter offered “no
new evidence or errors of law which would warrant the reversal or modification”[25] of its
Petitioner filed the present
petition, attributing to Deputy Ombudsman Casimiro, Director
Blancaflor and Prosecutor Garcia (public respondents)
the following acts of grave abuse of discretion:
I. Public
respondents acted without or in excess of their jurisdiction and/or with grave
abuse of discretion amounting to lack or excess of jurisdiction when, in their
Resolution dated October 30, 2003, public respondents found that the incident
upon which petitioner's criminal complaint was based stemmed from a valid warrantless arrest and dismissed petitioner's complaint
despite the fact that:
A. Petitioner
has clearly shown that the search conducted by the private respondents was made without a valid warrant, nor does it fall under any
of the instances of valid warrantless searches.
B. Notwithstanding
the absence of a valid warrant, petitioner was arrested and detained by the
private respondents.
II. Public
respondents acted without or in excess of their jurisdiction and/or with grave
abuse of discretion amounting to lack or excess of jurisdiction when, in their
Order dated January 20, 2004, public respondents denied the petitioner's motion
for reconsideration in a capricious, whimsical, despotic and arbitrary manner. [26]
In its Memorandum,[27]
the Office of the Solicitor
General argued that public respondents acted within the bounds of their discretion
in dismissing OMB-P-C-02-0109-B given that private respondents committed no
crime in searching petitioner and confiscating his firearm as the former were
merely performing their duty of enforcing the law against illegal possession of
firearms and the Comelec ban
against the carrying of firearms outside of one's residence.
Private
respondent Conde filed a Comment[28] and a Memorandum for himself.[29] Private
respondents Avenido, Degran,
Rufano and Balolot filed
their separate Letter-Comment dated
The
petition lacks merit.
The Constitution vests in the
Ombudsman the power to determine whether there exists reasonable ground to
believe that a crime has been committed and that the accused is probably guilty
thereof and, thereafter, to file the corresponding information with the
appropriate courts.[31] The Court
respects the relative autonomy of the Ombudsman to investigate and prosecute,
and refrains from interfering when the
latter exercises such powers either directly or through the Deputy Ombudsman,[32] except when the same is shown to be tainted with
grave abuse
of discretion amounting to lack or excess of jurisdiction.[33]
Grave abuse of discretion is an evasion of a
positive duty or a virtual refusal to perform a duty enjoined by law or to act
in contemplation of law as when judgment rendered is not based on law and
evidence but on caprice, whim and despotism.[34] This does not obtain in the present case.
It is noted that the criminal
complaint which petitioner filed with the Ombudsman charges private respondents
with warrantless search, arbitrary detention, and
grave threats.
The
complaint for warrantless search
charges no criminal offense. The conduct of a warrantless
search is not a criminal act for it is not penalized under the Revised Penal
Code (RPC) or any other special law. What
the RPC punishes are only two forms of searches:
Art.
129. Search
warrants maliciously obtained and abuse in the service of those legally
obtained. - In addition to the liability
attaching to the offender for the commission of any other offense, the penalty
of arresto mayor in its maximum period
to prision correccional
in its minimum period and a fine not exceeding P1,000.00
pesos shall be imposed upon any public officer or employee who shall procure a
search warrant without just cause, or, having legally procured the same, shall
exceed his authority or use unnecessary severity in executing the same.
Art.
130. Searching
domicile without witnesses. - The penalty of arresto
mayor in its medium and maximum periods shall be imposed upon a public
officer or employee who, in cases where a search is proper, shall search the
domicile, papers or other belongings of any person, in the absence of the
latter, any member of his family, or in their default, without the presence of
two witnesses residing in the same locality.
Petitioner did not allege any of the
elements of the foregoing felonies in his Affidavit-Complaint; rather, he
accused private respondents of conducting a search on his vehicle without being
armed with a valid warrant. This situation, while lamentable, is not covered by
Articles 129 and 130 of the RPC.
The remedy of petitioner against the
warrantless search conducted on his vehicle is civil,[35] under Article 32, in relation to Article 2219[36] (6) and (10) of the Civil Code, which provides:
Art. 32. Any public officer or employee, or any private individual, who
directly or indirectly obstructs, defeats, violates or in any manner impedes or
impairs any of the following rights and liberties of another person shall be
liable to the latter for damages:
x x
x x
(9) The right to be secure
in one’s person, house, papers, and effects against unreasonable searches and
seizures;
x x
x x
The indemnity shall include
moral damages. Exemplary damages may
also be adjudicated.
and/or disciplinary and administrative, under Section 41 of
Republic Act No. 6975.[37]
To avail of such remedies,
petitioner may file against private respondents a complaint for damages with
the regular courts[38] or an administrative case with the PNP/DILG,[39] as petitioner did in Administrative Case No. IASOB-020007, and not a criminal action with the Ombudsman.
Public respondents' dismissal of the
criminal complaint for illegal search which petitioner filed with the Ombudsman
against private respondents was therefore proper, although the reasons public respondents cited for
dismissing the complaint are rather off the mark because they relied solely on
the finding that the warrantless search conducted by
private respondents was valid and that the Affidavit of Desistance which
petitioner executed cast doubt on the veracity of his complaint.[40] Public
respondents completely overlooked the fact that the criminal complaint was not
cognizable by the Ombudsman as illegal search is not a criminal offense. Nevertheless, the result achieved is the
same: the dismissal of a groundless criminal complaint for illegal search which
is not an offense under the RPC. Thus,
the Court need not resolve the issue of whether or not public respondents erred
in their finding on the validity of the search for that issue is completely
hypothetical under the circumstance.
The criminal complaint for abitrary detention was likewise properly dismissed by
public respondents. To sustain a criminal charge for arbitrary detention, it
must be shown that (a) the offender is a public officer or employee, (b) the
offender detained the complainant, and (c) the detention is without legal
grounds.[41] The second
element was not alleged by petitioner in his Affidavit-Complaint. As pointed out by private respondent Conde in his Comment[42]
and Memorandum,[43] petitioner himself identified in his
Affidavit-Complaint that it was Police Chief Rocacorba
who caused his detention. Nowhere in
said affidavit did petitioner allege that private respondents effected his detention, or were in any other way involved in
it.[44] There was,
therefore, no factual or legal basis to sustain the criminal charge for
arbitrary detention against private respondents.
Finally, on the criminal complaint
for grave threats, the Solicitor General aptly pointed out that the same is
based merely on petitioner's bare allegation that private respondents aimed
their firearms at him.[45]
Such bare allegation stands no chance against
the well-entrenched rule applicable in this case, that public officers enjoy a presumption
of regularity in the performance of their official function.[46] The IAS itself observed that private
respondents may have been carried away by their “enthusiasm in the conduct of the arrest in line of
duty.”[47] Petitioner
expressed the same view when, in his
Affidavit of Desistance, he accepted that private respondents may have been
merely following orders when they pointed their long firearms at him.
All said,
public respondents did not act with grave abuse of discretion in dismissing the
criminal complaint against private respondents.
WHEREFORE, the petition is DENIED.
No costs.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
WE
CONCUR:
CONSUELO
YNARES-SANTIAGO
Associate
Justice
Chairperson
|
MINITA V. CHICO-NAZARIO Associate Justice |
ANTONIO EDUARDO B.
NACHURA Associate Justice |
RUBEN T. REYES
Associate Justice
ATTESTATION
I attest
that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court’s
Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article
VIII of the Constitution, and the Division Chairperson’s Attestation, it is
hereby certified that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Court’s Division.
REYNATO S. PUNO
Chief
Justice
[1] Issued by Ombudsman
Investigation and Prosecution Officer Dennis L. Garcia and approved by Deputy
Ombudsman for the Military Orlando C. Casimiro; rollo, p. 25.
[2] A retired police
officer accused in Criminal Case No. 5047 of illegal possession of firearms.
[3] Rollo,
p. 27.
[4] Exhibit “R,” id. at 186.
[5] Exhibit “I,” id. at 185.
[6]
[7]
[8]
[9] Records, pp. 2-3.
[10]
[11]
[12]
[13] Rollo,
p. 28.
[14]
[15]
[16] Records,
unnumbered page.
[17]
[18] Records,
unnumbered page.
[19]
[20] Rollo,
p. 33.
[21]
[22]
[23]
[24]
[25] Rollo,
p. 27.
[26]
[27]
[28] Rollo,
p. 61.
[29]
[30]
[31] Section 13, Article XI (Accountability of Public
Officers): The Office of the Ombudsman shall have the following powers,
functions, and duties: (1) Investigate on its own, or on complaint by any
person, any act or omission of any public official, employee, office or agency,
when such act or omission appears to be illegal, unjust, improper, or
inefficient.
[32] Salma
v. Miro, G.R.
No. 168362, January 25, 2007, 512
SCRA 724, 737; Brito v. Office of the Deputy
Ombudsman for Luzon, G.R. Nos. 167335, 167337 and 173152, July
10, 2007, 527 SCRA 215, 231.
[33] Esquivel
v. Ombudsman, 437 Phil. 702,
715 (2002); Salma v.Miro,
supra note 32, at 738.
[34] Baviera
v. Zoleta, G.R. No. 169098, October 12, 2006,
504 SCRA 281, 303; Soria v. Desierto, G.R. Nos. 153524-25, January 31, 2005,
450 SCRA 339, 345.
[35] Silahis
International Hotel, Inc. v. Soluta, G.R. No.
163087,
[36] Art. 2219. Moral damages may
be recovered in the following and analogous cases: x x
x (6) Illegal search;
x x x.
[37] Department of the Interior and Local Government Act of 1990.
[38] Lui v. Matillano, G.R.
No. 141176,
[39] Cayago
v. Lina, G.R. No. 149539,
[40] Rollo,
p. 26.
[41] Astorga v. People of the
[42] Rollo,
p. 62.
[43]
[44] Affidavit-Complaint,
p. 2; records, unnumbered page.
[45] Rollo,
p. 146.
[46] Salma
v. Miro, supra note 32, at 735, citing Rules of Court, Rule 131, Sec. 3(m); Ombudsman
v. Court of Appeals, G.R. No. 147762, October 12,
2006, 504 SCRA 321.
[47] Rollo,
p. 30.