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ANNOTATION

FINDINGS OF PROBABLE CAUSE TO JUSTIFY

THE FILING OF THE INFORMATION IN COURT

By

JULIANA C. AZARRAGA*

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§ I. Introductory Note, p. 799
§ II. Basis of probable cause, p. 800
§ III. Nature of preliminary investigation to
determine probable cause, p. 801
§ IV. Exceptions; compelling reasons, p. 803
§ V. Remedy against the OMB’s orders or
resolutions,
p. 804
§ VI. Probable cause for issuance of warrants of
arrest/
search warrant, p. 804
§ VII. Probable cause in warrantless searches, p.
805
§ VIII. Constitutional guarantee, p. 805
§ IX. Exceptions, p. 806
§ X. Principle of non-interference by the Courts, p.
807

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§ I. Introductory Note
PROBABLE cause defined.
Probable cause has been defined as the existence of such
facts and circumstances as would excite the belief, in a
reasonable mind, acting on the facts within the knowledge
of the

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* RTC Judge Branch 15, Roxas City.

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800 SUPREME COURT REPORTS ANNOTATED

prosecutor, that the person charged was guilty of the crime


for which he was prosecuted.1 Probable cause is a
reasonable ground of presumption that a matter is, or may
be, well-founded, such a state of facts in the mind of the
prosecutor as would lead a person of ordinary caution and
prudence to believe, or entertain an honest or strong
suspicion, that a thing is so. The term does not mean
“Actual and positive cause” nor does it import absolute
certainty.   It is merely based on opinion and reasonable
belief; while probable cause demands more than “bare
suspicion,” it requires less than evidence which would
justify conviction.2
§ II. Basis of probable cause
Probable cause need not be based on clear and
convincing evidence of guilt, neither on evidence
establishing guilt beyond reasonable doubt and definitely,
not on evidence establishing absolute certainty of guilt, but
it certainly demands more than bare suspicion and can
never be left to presupposition, conjecture, or even
convincing logic.3
A finding of probable cause does not require an inquiry
into whether there is sufficient evidence to procure a
conviction.   It is enough that it is believed that the act or
omission complained of constitutes the offense charged.
Precisely, there is a trial for the reception of evidence of the
prosecution in support of the charge.4 A finding of probable
cause merely binds over the suspect to stand trial.  It is not
a pronouncement of guilt.5

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11 Republic vs. Desierto, 512 SCRA 57 (2007); De Chavez vs. Office of


the Ombudsman, 514 SCRA 638 (2007); Gonzalez vs. Hongkong &
Shanghai Banking Corporation, 537 SCRA 255 (2007).
2 Paredes vs. Calilung, 517 SCRA 369 (2007).
3 Supra.
4 Pilapil vs. Sandiganbayan, 221 SCRA 349 (1993).
5 Webb vs. Hon. De Leon, 247 SCRA 652 (1995).
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Where a vehicle was flagged down but it did not stop,


forcing the police to chase it, there exists probable cause to
justify a reasonable belief on the part of the enforcers that
the vehicle contained objects which were instruments of
some offense.6
When a vehicle is flagged down and subjected to an
extensive search, such a warrantless search has been held
to be valid as long as the officers conducting the search
have reasonable or probable cause to believe prior to the
search that they would find the instrumentality or evidence
pertaining to a crime, in the vehicle to be searched.7
§ III. Nature of preliminary investigation to
determine probable cause
The settled rule is that the determination of probable
cause for the filing of an information in court is an
executive function, one that properly pertains at the first
instance to the public prosecutor and, ultimately, to the
Secretary of Justice.8
The determination of probable cause to warrant
prosecution in court is, under our criminal justice system,
entrusted at the first instance to public prosecutors and
finally to the Secretary of Justice as reviewer of the
findings and resolutions of the prosecutors in preliminary
investigation cases.9 In this regard, the authority of the
Secretary of Justice to review and order the withdrawal of
an information in instances where he finds the absence of
prima facie is not time-barred, albeit subject to the
approval of the court if its jurisdiction over the accused has
meanwhile attached,10 and it is not prudent or even
permissible for a court to compel the Secretary of Justice or
the fiscal, as the case may be, to prosecute a proceeding
originally initiated by him on an information, if he

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6 Epie, Jr. vs. Ulat-Marredo, 518 SCRA 641 (2007).


7 People vs. Tuazon, 532 SCRA 152 (2007).
8 United Coconut Planters Bank vs. Looyuko, 534 SCRA 322 (2007).
9 Punzalan vs. Dela Peña, 434 SCRA 601 (2007).
10 Crespo vs. Mogul, 151 SCRA 462 (1987).
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802 SUPREME COURT REPORTS ANNOTATED

finds that the evidence relied upon by him is insufficient


for conviction.
a. Extent of latitude of discretion of the Secretary of
Justice in determining what constitutes probable cause.—
The following questions were posed: If the Secretary of
Justice possesses sufficient latitude of discretion in his
determination of what constitutes probable cause and can
legally order a reinvestigation even in those extreme
instances where an information has already been filed in
court, is it not just valid and logical to assume that he can
take cognizance belatedly filed it might have been, dealing
with probable cause? And is it not a grievous error on the
part of the CA if it virtually orders the filing of an
information, as here, despite a categorical statement from
the Secretary of Justice about the lack of evidence to
proceed with the prosecution of the petitioner?   The
answers to both posers should be in the affirmative. The
Supreme Court, in the case of Santos vs. Go:11

“(C)ourts cannot interfere with the discretion of the public


prosecutor in evaluating the offense charged. He may dismiss the
complaint forthwith, if he finds the charge insufficient in form
and substance, or without any ground. Or, he may proceed with
the investigation if the complaint in his view is sufficient and in
proper form. The decision whether to dismiss a complaint or not,
is dependent upon the sound discretion of the prosecuting fiscal
and, ultimately, that of the Secretary of Justice. Findings of the
Secretary of Justice are not subject to review unless made with
grave abuse of discretion.”

If the prosecutor found probable cause to indict the


respondent for a criminal offense, it is his duty to file the
corresponding information in court, but it is equally his
duty not to prosecute when after an investigation, the
evidence adduced is not sufficient to establish a prima facie
case.12

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11 473 SCRA 350 (2005).


12 Monfort III vs. Salvatierra, 517 SCRA 447 (2007).
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b. Power of the Ombudsman to determine probable


cause.—
As a rule, the courts do not interfere with the Office of
the Ombudsman’s exercise of discretion in determining
probable cause unless there are compelling reasons.13
The investigating prosecutor (the Ombudsman, in the
case) given sufficient latitude of discretion, not only in
determining what will constitute sufficient evidence that
will establish “probable cause” for the filing of information
against a supposed offender, but as well as the proper
offense to be charged against said offender depending on
the evidence submitted by the parties during the
preliminary investigation.14
§ IV. Exceptions; compelling reasons
The Constitution and R.A. 6770 (The Ombudsman Act of
1989) grants the OMB with a wide latitude of investigatory
and prosecutorial powers, that is, virtually free from
legislative, executive or judicial intervention, in order to
insulate it from outside pressure and improper influence.15
However, there are certain instances when this Court
may intervene in the prosecution of cases. Brocka vs.
Enrile,16 cited some of these exceptions: (1) to afford
adequate protection to the constitutional rights of the
accused; (2) when necessary for the orderly administration
of justice or to avoid oppression or multiplicity of actions;
(3) when there is a prejudicial question which is sub judice;
(4) when the acts of the officer are without or in excess of
authority; (5) where the prosecution is under an invalid
law, ordinance or regulation; (6) when double jeopardy is
clearly apparent; (7) where the court has no jurisdiction
over the offense; (8) where it is a case of persecu-

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13 Pontejos vs. Office of the Umbudsman, 483 SCRA 83 (2006).


14  Galario vs. Office of the Ombudsman (Mindanao), 527 SCRA 190
(2007).
15 Perez vs. Office of the Ombudsman, 429 SCRA 357 (2004).
16 192 SCRA 183 (1990).

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tion rather that prosecution; (9)   where the charges are


manifestly false and motivated by the lust for vengeance;
(10) when there is clearly no prima facie case against the
accused and a motion to quash on that ground has been
denied.
§ V. Remedy against the OMB’s orders or
resolutions
The remedy to challenge the OMB’s orders or resolutions
in criminal cases is through a petition for certiorari under
Rule 65 to this Court.17
A petition for certiorari is the remedy when a
government officer has acted with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no
appeal, or any plain, speedy, and adequate remedy in the
ordinary course of law.18
Grave abuse of discretion implies a capricious and
whimsical exercise of judgment tantamount to lack of
jurisdiction.19 The exercise of power must have been done
in an arbitrary or despotic manner by reason of passion or
personal hostility.   It must be so patent and cross as to
amount to an evasion of positive duty or a virtual refusal to
perform the duty enjoined or to act at all in contemplation
of law.20
§ VI. Probable cause for issuance of warrants of
arrest/search warrant
The duty to determine the existence of probable cause in
order to charge a person for committing a crime rests on
the public prosecutor. It is an executive function, the
correctness of the exercise of which is a matter that the
trial court itself does not and may not be compelled to pass
upon.21

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17 Villanueva vs. Ople, 475 SCRA 539 (2005); Mendoza-Arce vs. Office
of the Ombudsman, 380 SCRA 325 (2002).
18 Rule 65 (1) Rules of Court.
19 Soria vs. Desierto, 450 SCRA 339 (2005).
20 Supra.
21 People vs. Court of Appeals, 301 SCRA 475 (1999).

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On the other hand, the duty to determine whether


probable cause exists to issue a warrant of arrest rests on
the judge – a judicial function to decide whether there is a
necessity for placing the accused under immediate custody
in order not to frustrate the ends of justice.22
Probable cause in order to issue a warrant of arrest
pertains to facts and circumstances which would lead a
reasonably discreet and prudent person to believe that an
offense has been committed by a person sought to be
arrested.23
The “probable cause” for a valid search warrant has
been defined as such facts and circumstances which would
lead a reasonably discreet and prudent man to believe that
an offense has been committed, and that objects sought in
connection with the offense are in the place sought to be
searched.   In determining the existence of probable cause,
the examining magistrate must make a probing and
exhaustive, not merely a routine or pro forma examination
of the applicant and the witness.24
§ VII. Probable cause in warrantless searches
In warrantless searches, probable cause must only be
based on reasonable ground of suspicion or belief that a
crime has been committed or is about to be committed, of
which there is no hard and fast rule or fixed formula in
determining probable cause for its determination varies
according to the facts of each case.25
§ VIII. Constitutional guarantee
Section 2, Article III of the Constitution provides: The
right of the people to be secure in their persons, houses,
papers,

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22 Ho vs. People, 280 SCRA 365 (1997).


23 De Joya vs. Marquez, 481 SCRA 376 (2006).
24  Betoy, Sr. vs. Coliflores, 483 SCRA 435; Kho vs. Lanzanas, 489
SCRA 444 (2006).
25 Epie, Jr. vs. Ulat-Marredo, 518 SCRA 641 (2007).

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and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be enviolable,
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
things to be seized.
Section 3(2) also of Article III provides that: (A)ny
evidence obtained in violation of this or the preceding
section shall be inadmissible for any purpose in any
proceedings.
§ IX. Exceptions
The above rule, however, is not devoid of any exceptions.
In People vs. Sarap,26 the Court set down the following
exceptions: where search and seizure may be conducted
without warrant, thus: (1) search incident to a lawful
arrest; (2)  search of a moving motor vehicle; (3) search in
violation of customs laws; (4) seizure of the evidence in
plain view; (5) when the accused himself waives his right
against unreasonable searches and seizures; (6) stop and
frisk; and (7) exigent and emergency circumstances. The
only requirement in these exceptions is the presence of
probable cause.
In People vs. Aruta,27 the Supreme Court rules that in
warrantless searches, probable cause must only be based
on reasonable ground of suspicion or belief that a crime has
been committed or is about to be committed. There is no
hard and fast rule or fixed formula in determining probable
cause for its determination varies according to the facts of
each case.
In People vs. Elamparo,28 the Supreme Court said: The
mem-bers of a buy-bust team, hot in the heels of a fleeing
seller of a prohibited drugs, are justified in running after
him and entering the house where he fled even without a
search warrant.

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26 399 SCRA 503 (2003).


27 288 SCRA 626 (1998).
28 329 SCRA 404 (2000).

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§ X. Principle of non-interference by the Courts
The duty to determine the existence of probable cause in
order to charge a person of committing a crime rests on the
public prosecutor. It is an executive function, the
correctness of the exercise of which is a matter that the
trial court itself does not and may not be compelled to pass
upon.29 On the other hand, the duty to determine whether
probable cause exists to issue a warrant of arrest rests on
the judge –a judicial function to decide whether there is a
necessity for placing the accused under immediate custody
in order not to frustrate the ends of justice. 30
While as a matter of policy, courts refrain from
interfering with the assessment by the executive
department of the existence of probable cause, this does not
preclude the courts from evaluating the facts and
circumstances upon which the determination of probable
cause may have been based, if only to decide a case of
malicious prosecution.31
The act of the Ombudsman in finding probable cause to
indict a person is an exercise of his powers based upon
constitutional mandate and the courts should not interfere
with such exercise, unless clothed with grave abuse of
discretion. The abuse of discretion must be so patent and
gross as to amount to an evasion of positive duty or virtual
refusal to perform a duty enjoined by law, or to act at all in
contemplation of law as where the power is exercised in an
arbitrary manner by reason of passion or hostility.32
——o0o——
 

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29 People vs. Court of Appeals, 301 SCRA 475 (1999).


30 People vs. Capwa, 541 SCRA 516 (2007).
31  Metropolitan Bank and Trust Company vs. Court of Appeals, 508
SCRA 215 (2006).
32 Singian, Jr. vs. Sandiganbayan, 478 SCRA 348 (2005).

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