In behalf of the People, the Solicitor General has perfected the appeal at bar under Rule 45 of the Rules of Court from the Decision promulgated on September 11, 1996 of the Fourteenth Division of the Court of Appeals.^[1] Said judgment dismissed the People's petition for certiorari to invalidate (i) the order of Judge Caesar A Casanova of Branch 80 of the Regional Trial Court dated February 9 1996,^[2] as well as (ii) that dated May 28, 1996 denying the People's motion for reconsideration.^[3] Those orders were handed down in Criminal Case No. 43-M-96, a case of illegal possession of explosives after the accused had been arraigned and entered a plea of not guilty to the charge. More particularly, the Order of February 9, 1996:

1) quashed a search warrant (No. 1068 ^[95]) issued by Judge Marciano I. Bacalla of Branch 216 of the Regional Trial Court at Quezon City on December 15, 1995,^[4]

2) declared inadmissible for any purpose the items seized under the warrant, and

3) directed the turnover of the amount of U.S. $5,750.00 to the Court within five (5) days "to be released thereafter in favor of the lawful owner considering that said amount was not mentioned in the Search Warrant."

The antecedents, "culled from the records" by the Appellate Court, are hereunder set out.

1. "On December 14, 1995, S/Insp PNP James Brillantes applied for search warrant before Branch 261, RTC of Quezon City against Mr. Azfar Hussain, who had allegedly in his possession firearms and explosives at Abigail Variety Store, Apt. 1207 Area F, Bagong Buhay Ave. Sapang Palay, San Jose del Monte Bulacan."

2. "The following day, December 15, 1995, Search Warrant No. 1068 (95) against Mr. Hussain was issued not at Abigail Variety Store but at Apt. No. 1, immediately adjacent 9to0 Abigail Variety Store resulting in the arrest of four (4) Pakistani nationals and in the seizure of their personal belongings, papers and effects such as wallet, wrist watches, pair of shoes, jackets, t-shirts, belts, sunglasses and travelling bags including cash amounting to $3,550.00 and P1,500.00 aside from US $5,175.00 (receipted) which were never mentioned in the warrant. The sum of $5,175.00 was however returned to the respondents upon order of the court on respondent's motion or request. Included allegedly are one piece of dynamite stick; two pieces of plastic explosives C-4 type and one (1) fragmentation grenade. But without the items described in the search warrant are: (a) three (3) Ingram machine pistols; (b) four (4) gmm pistol; (c) blasting caps; (d) fuse; (e) assorted chemical ingredients for explosives; and (f) assorted magazine assg and ammunitions."

3. "On December 19, 1995, three days after the warrant was served, a return was made without mentioning the personal belongings, papers and effects including cash belonging to the private respondents. There was no showing that lawful occupants were made to witness the search."

4. "On January 22,1996, private respondents upon arraignment, pleaded not guilty to the offense charged; **" and on the same date, submitted their "Extremely Urgent Motion (To Quash Search Warrant and to Declare Evidence Obtained Inadmissible)," dated January 15, 1996;

5. "** According to the private respondents in their pleading (consolidated comment on petition for certiorari **): On January 29, 1996, an ocular inspection of the premises searched was conducted by respondent Judge and the following facts had been established as contained in the order dated January 30, 1996** to wit:

"1) That the residence of all the accused is at Apartment No. 1 which is adjacent to the Abigail's Variety Store;

2) That there is no such number as 1207 found in the building as it is correspondingly called only 'Apartment No. 1, 2, 3, and 4;'

3) That Apartment No. 1 is separate from the Abigail's Variety Store;

4) That there are no connecting doors that can pass from Abigail's Variety Store to Apartment No. 1;

5) That Abigail's Variety Store and Apartment No. 1 have its own respective doors used for ingress and egress.

That there being no objection on the said observation of the Court, let the same be reduced on the records.

SO ORDERED." "

6. "On February 9, 1996, respondent Judge ** issued its order duly granting the motion to quash search warrant **;"^[5]

7. "On February 12, 1996, private respondents filed the concomitant motion to dismiss **;"

8. "On February 19, 1996, Asst. Provincial Prosecutor Rolando Bulan filed a motion for reconsideration and supplemental motion on the order quashing the search warrant**;"

9. "On February 27, 1996 and March 12, 1996, private respondent filed opposition/comment and supplemental opposition/comment on the motion for reconsideration **:"

10. "On May 28, 1996, respondent Judge ** issued its order denying the motion for reconsideration **; (and on) June 11, 1996, private respondents filed extremely urgent reiterated motion to dismiss**."

Chiefly to nullify Judge Casanova's quashal Order of February 9, 1996 above referred to, the Solicitor General forthwith commenced a special civil action of certiorari in the Court of Appeals. The action did not prosper, however. As earlier mentioned, the Fourteenth Division of the Appellate Tribunal promulgated judgment on September 11, 1996, dismissing the case for lack of merit.

The judgment was grounded on the following propositions, to wit:^[6]

1. The place actually searched was different and distinct from the place described in the search warrant. This fact was ascertained by the Trial Judge through an ocular inspection, the findings wherein, not objected to by the People, were embodied in an order dated January 30, 1996. The place searched, in which the accused (herein petitioners) were then residing, was Apartment No. 1. It is a place other than and separate from, and in no way connected with, albeit and adjacent to, Abigail's Variety Store, the place stated in the search warrant.

2. The public prosecutor's claim -- that the sketch submitted to Judge Bacalla relative to the application for a search warrant, actually depicted the particular place to be searched -- was effectively confuted by Judge Casanova who pointed out that said "SKETCH was not dated, not signed by the person who made it and not even mentioned in the Search Warrant by the Honorable Judge (Bacalla, who) instead ** directed them to search Abigail Variety Store Apartment 1207 ** in the Order ** dated December 15, 1995" -- this, too, being the address given "in the Application for Search Warrant dated December 14, 1995 requested by P/SR INSP. Roger James Brillantes, the Team Leader." The untenability of the claim is made more patent by the People's admission, during the hearing of its petition for certiorari in the Court of Appeals, that said sketch was in truth "not attached to the application for search warrant ** (but) merely attached to the motion for reconsideration."^[7]

Quoted with approval by the Appellate Court were the following observations of Judge Casanova contained in his Order of May 28, 1996, viz.:^[8]

"(d)** ** it is very clear that the place searched is different from the place mentioned in the Search Warrant, that is the reason why even P/SR. INSP Roger James Brillantes, SPO1 Prisco Bella and SPO4 Cesar D. Santiago, who were all EDUCATED, CULTURED and ADEPT to their tasks of being RAIDERS and who were all STATIONED IN BULACAN were not even able to OPEN THEIR MOUTH to say in TAGALOG with Honorable Judge who issued the Search Warrant the words 'KATABI', or 'KADIKIT' or 'KASUNOD NG ABIGAIL VARIETY STORE ang papasukin namin" or if they happen to be an ENGLISH speaking POLICEMEN, they were not able to open their mouth even to WHISPER the ENGLISH WORDS 'RESIDE' or 'ADJACENT' or 'BEHIND' or 'NEXT to ABIGAIL VARIETY STORE, the place they are going to raid.'**."

3. The search was not accomplished in the presence of the lawful occupants of the place (herein private respondents) or any member of the family, said occupants being handcuffed and immobilized in the living room at the time. The search was thus done in violation of the law.^[9]

4. The articles seized were not brought to the court within 48 hours as required by the warrant itself; "(i)n fact the return was done after 3 days or 77 hours from service, in violation of Section 11, Rule 126 of the Rules of Court."^[10]

5. Judge Casanova "correctly took cognizance of the motion to quash search warrant, pursuant to the doctrinal tenets laid down in Nolasco vs. Paño (139 SCRA 152) which overhauled the previous ruling of the Supreme Court in Templo vs. dela Cruz (60 SCRA 295). It is now the prevailing rule that whenever a search warrant has been issued by one court or branch thereof and a criminal case is initiated in another court or branch thereof as a result of the search of the warrant, that search warrant is deemed consolidated with the criminal case for orderly procedure. The criminal case is more substantial than the search warrant proceedings, and the presiding Judge in the criminal case has the right to rule on the search warrant and to exclude evidence unlawfully obtained (Nolasco & Sans cases).

6. Grave abuseof discretion cannot be imputed to the respondent Judge, in light of "Article III, Section 2 of the Constitution and Rule 126 of the Rules of Court."

7. The proper remedy against the challenged Order is an appeal, not the special civil aciton of certiorari.

The Solicitor General now seeks reversal of the foregoing verdict ascribing to the Court of Appeals the following errors, to wit:

1) sanctioning "the lower Court's precipitate act of disregarding the proceedings before the issuing Court and overturning the latter's determination of probable cause and particularity of the place to be searched;"

2) sanctioning "the lower Court's conclusion that the sketch was not attached to the application for warrant despite the clear evidence ** to the contrary;"

3) ignoring "the very issues raised in the petition before it:"

4) "holding that the validity of an otherwise valid warrant could be diminished by the tardiness by which the return is made;"

5) hastly applying "the general rule that certiorari cannot be made a substitute for appeal although the circumstances attending the case at bar clearly fall within the exceptions to that rule;" and

6) depriving petitioner of "the opportunity to present evidence to prove the validity of the warrant when the petition before it was abruptly resolved without informing petitioner thereof."

The whole case actually hinges on the question of whether or not a search warrant was validly issued as regards the apartment in which private respondents were then actually residing, or more explicitly, whether or not that particular apartment had been specifically described in the warrant.

The Government insists that the police officers who applied to the Quezon City RTC for the search warrant had direct, personal knowledge of the place to be searched and the things to be seized. It claims tha tone of said officers, infact, had been able to surreptitiously enter the place to be searched prior to the search: this being the first of four (4) separate apartments behind the Abigail Variety Store; and they were also the same police officers who eventually effected the search and seizure. They thus had personal knowledge of the place to be searched and had the competence to make a sketch thereof; they knew exactly what objects should be taken therefrom; and they had presented evidence sufficient to establish probable cause. That may be so; but unfortunately, the place they had in mind -- the first of four (4) separate apartment units (No. 1) at the rear of "Abigail Variety Store" -- was not what the Judge who issued the warrant himself had in mind, and was not what was ultimately described in the search warrant.

The discrepancy appears to have resulted from the officers' own faulty depiction of the premises to be searched. For in their application and in the affidavit thereto appended, they wrote down a description of the place to be searched, which is exactly what the Judge reproduced in the search warrant: "premises located at Abigail Variety Store Apt 1207, Area-F, Bagong Buhay Avenue, Sapang Palay, San Jose Del Monte, Bulacan." And the scope of the search was made more particular -- and more restrictive -- by the Judge's admonition in the warrant that the search be "limited only to the premises herein described."

Now, at the time of the application for a search warrant, there were at least five (5) distinct places in the area involved: the store known as "Abigail's Variety Store," and four (4) separate and independent residential apartment units. These are housed in a single structure and are contiguous to each other although there are no connecting doors through which a person could pass from the interior of one to any of the others. Each of the five (5) places is independent of the others, and may be entered only through its individual front door. Admittedly, the police officers did not intend a search of all five (5) places, but only one of the residential units at the rear of Abigail's Variety Store: that immediately next to the store (Number 1).

However, despite having personal and direct knowledge of the physical configuration of the store and the apartments behind the store, the police officers failed to make Judge Bacalla understand the need to pinpoint Apartment No. 1 in the warrant. Even after having received the warrant -- which directs that the search be "limited only to the premises herein described," "Abigail Variety Store Apt 1207" -- thus literally excluding the apartment units at the rear of the store -- they did not ask the Judge to correct said description. They seem to have simply assumed that their own definite idea of the place to be searched -- clearly indicated, according to them, in the sketch they claim to have submitted to Judge Bacalla in support of their application -- was sufficient particularization of the general identification of the place in the search warrant.

The Solicitor General argues that this assumption is sanctioned by Burgos, Sr. v. Chief of Staff, AFP,^[11] allegedly to the effect that the executing officer's prior knowledge as to the place intended in the warrant is relevant, and he may, in case of any ambiguity in the warrant as to the place to be searched, look to the affidavit in the official court file.

Burgos is inapplicable. That case concerned two (2) search warrants which, upon perusal, immediately disclosed an obvious typographical error. The application in said case was for seizure of subversive material allegedly concealed in two places: one at "No. 19. Road 3, Project 6, Quezon City;" and the other, at "784 Units C & D. RMS Building, Quezon Avenue, Quezon City;" Two (2) warrants issued -- No. 20-82 [a] and No. 20-82 [b]). Objection was made to the execution of Warrant No. 20-82 (b) at "784 Units C & D, RMS Building, Quezon Avenue, Quezon City" because both search warrants apparently indicated the same address (No. 19, Road 3, Project 6, Quezon City) as the place where the supposedly subversive material was hidden. This was error, of course but, as this Court there ruled, the error was obviously typographical, for it was absurd to suppose that the Judge had issued two warrants for the search of only one place. Adverting to the fact that the application for the search warrants specified two (2) distinct addresses, and that in fact the address, "784 Units C&D, RMS Building, Quezon Avenue, Quezon City" appeared in the opening paragraph of Warrant 20-82 (b), this Court concluded that evidently, this was the address the judge intended to be searched when he issued the second warrant (No. 20-82 [b]); and to clear up the ambiguity caused by the "obviously typographical error," the officer executing the warrant could consult the records in the official court file.^[12]

The case at bar, however, does not deal with the correction of an "obvious typographical erro" involving ambiguous descriptions of the place to be searched, as in Burgos, but the search of a place different from that clearly and without ambiguity identified in the search warrant. In Burgos, the inconsistency calling for clarification was immediately perceptible on the face of the warrants in question. In the instant case, there is no ambiguity at all in the warrant. The ambiguity lies outside the instrument, arising from the absence of a meeting of minds as to the place to be searched between the applicants for the warrant and the Judge issuing the same; and what was done was to substitute for the place that the judge had written down in the warrant, the premises that the executing officers had in their mind. This should not have been done. It is neither fair nor licit to allow police officers to search a place different from that stated in the warrant on the claim that the place actually searched -- although not that specified in the warrant -- is exactly what they had in view when they applied for the warrant and had demarcated in their supporting evidence. What is material in determining the validity of a search is the place stated in the warrant itself, not what the applicants had in their thoughts, or had represented in the proofs they submitted to the court issuing the warrant. Indeed, following the officers' theory, in the context of the facts of this case, all four (4) apartment units at the rear of Abigail's Variety Store would have been fair game for a search.

The place to be searched, as set out in the warrant, cannot be amplified or modified by the officers' own personal knowledge of the premises, or the evidence they adduced in support of their application for the warrant. Such a change is proscribed by the Constitution which requires inter alia the search warrant to particularly describe the place to be searched as well as the persons or things to be seized. It would concede to police officers the power of choosing the place to be searched, even if not be that delineated in the warrant. It would open wide the door to abuse of search process, and grant to officers executing a search warrant that discretion which the Constitution has precisely removed from them. The particularization of the description of the place to be searched may properly be done only by the Judge, and only in the warrant itself; it cannot be left to the discretion of the police officers conducting the search.

The Government faults Judge Casanova for having undertaken a review of Judge Bacalla's finding of probable cause, "as if he were an appellate court." A perusal of the record however shows that all that Judge Casanova did was merely to point out inconsistencies between Judge Bacalla'' Order of December 15, 1995 and the warrant itself, as regards the identities of the police officers examined by Judge Bacalla.^[13] In Judge Casanova's view, said inconsistencies, being quite apparent in the record, put in doubt the sufficiency of the determination of the facts on which the search warrant was founded.

The Government alleges that the officers had satisfactorily established probable cause before Judge Bacalla for the issuance of a search warrant. While this may be conceded, the trouble is, to repeat, that the place described in the search warrant -- which, of course, is the only place that may be legitimately searched in virtue thereof -- was not that which the police officers who applied for the warrant had in mind, with the result that what they actually subjected to search-and-seizure operations was a place other than that stated in the warrant. In fine, while there was a search warrant more or less properly issued as regards Abigail's Variety Store, there was none for Apartment No. 1 -- the first of the four (4) apartment units at the rear of said store, and precisely the place in which the private respondents were then residing.

It bears stressing that under Section 2, Article III of the Constitution, providing that:^[14]

"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 things to be seized.",

it does not suffice, for a search warrant to be deemed valid, that it be based on probable cause, personally determined by the judge after examination under oath, or affirmation of the complainant and the witnesses he may produce; it is essential, too, that it particularly describe the place to be searched,^[15] the manifest intention being that the search be confined strictly to the place so described.

There was therefore in this case an infringement of the constitutional requirement that a search warrant particularly describe the place to be searched; and that infringement necessarily brought into operation the concomitant provision that "(a)ny evidence obtained in violation ** (inter alia of the search-and-seizure provision) shall be inadmissible for any purpose in any proceeding."^[16]

In light of what has just been discussed, it is needless to discuss such other points sought to be made by the Office of the Solicitor General as whether or not (1) the sketch of the building housing the store and the residential apartment units -- the place to be searched being plainly marked -- was in fact attached to the application for the search warrant; or (2) the search had been conducted in the presence of the occupants of the place (herein petitioners), among others; or (3) the validity of the search warrant was diminished by the tardiness by which the return was made, or (4) the Court of Appeals had improperly refused to receive "evidence which ** (the People) had earlier been denied opportunity to present before the trial court;" or (5) the remedy of the special civil action of certiorari in the Court of Appeals had been erroneously availed of. The resolution of these issues would not affect the correctness of the conclusion that the search and seizure proceedings are void because the place set forth in the search warrant is different from that which the officers actually searched, or the speciousness of their argument that anyway, the premises searched were precisely what they had described to the Judge, and originally and at all times had in mind.

Only one other matter merits treatment. The Solicitor General's Office opines that where a search warrant has been "issued by the court other than the one trying the main criminal case," the "proper recourse" of persons wishing to quash the warrant is to assail it before the issuing court and not before that in which the criminal case involving the subject of the warrant is afterwards filed.^[17] In support, it cites the second of five (5) "policy guidelines" laid down by this Court in Malaloan v. Court of Appeals^[18] concerning "possible conflicts of jurisdiction (or, more accurately, in the exercise of jurisdiction) where the criminal case is pending in one court and the search warrant is issued by another court for the seizure of personal property intended to be used as evidence in said criminal case." Said second guideline reads:^[19]

"2. When the latter court (referring to the court which does not try the main criminal case) issues the search warrant, a motion to quash the same may be filed in and shall be resolved by said court, without prejudice to any proper recourse to the appropriate higher court by the party aggrieved by the resolution of the issuing court. All grounds and objections then available, existent or known shall be raised in the original or subsequent proceedings for the quashal of the warrant, other they shall be deemed waived."

The guidelines have been misconstrued. Where a search warrant is issued by one court and the criminal action based on the results of the search is afterwards commenced in another court, it is not the rule that a motion to quash the warrant (or to retrieve things thereunder seized) may be filed only with the issuing Court. Such a motion may be filed for the first time for the first time in either the issuing Court or that in which the criminal action is pending. However, the remedy is alternative, not cumulative. The Court first taking cognizance of the motion does so to the exclusion of the other, and the proceedings thereon are subject to the Omnibus Motion Rule and the rule against forum-shopping. This is clearly stated in the third policy guidelines which indeed is what properly applies to the case at bar, to wit:

"3. Where no motion to quash the search warrant was filed in or resolved by the issuing court, the interested party may move in the court where the criminal case is pending for the suppression as evidence of the personal property seized under the warrant if the same is offered therein for said purpose. Since two separate courts with different participations are involved in this situation, a motion to quash a search warrant and a motion to supress evidence are alternative and not cummulative remedies. In order to prevent forum shopping, a motion to quash shall consequently be governed by the omnibus motion rule, provided however, that objections not available, existent or known during the proceedings for the quashal of the warrant may be raised in the hearing of the motion to suppress. The resolution of the court on the motion to suppress shall likewise be subject to any proper remedy in the appopriate higher court."

In this case, the search warrant was applied for in, and issued by, Branch 216 of the Regional Trial Court at Quezon City, and the return was made to said court. On the other hand, the criminal action in connection with the explosives subject of the warrant was filed in Branch 80 of the Regional Trial Court of Bulacan. In this situation, a motion to quash the search warrant, or for the return of the personal property seized (not otherwise contraband) could have properly been presented in the QC RTC. No such motion was ever filed. It was only after the criminal action had been commenced in the Bulacan RTC that the motion to quash and to suppress evidence was submitted to the latter. The case thus falls within guideline No. 3 above quoted in accordance with which the latter court must be deemed to have acted within its competence.

WHEREFORE, the judgment of the Fourteenth Division of the Court of Appeals of September 11, 1996 -- which dismissed the People's petition for certiorari seeking nullification of the Orders of Branch 80 of the Regional Trial Court dated February 9, 1996 and May 28, 1996 in the Criminal Case No. 43-M-96 -- is, for the reasons set out in the foregoing opinion, hereby AFFIRMED without pronouncement as to costs.

SO ORDERED.

Romero, Kapunan, and Purisima, JJ., concur.

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^[1] Rollo, pp. 89-96; Annex A, petition

^[2] Id., pp. 183-185; Annex AA, petition

^[3] Id., pp. 198-202

^[4] Id., p. 140: Annex K, petition.

^[5] See Footnote No. 2, supra

^[6] Rollo, pp. 92-95.

^[7] Emphasis in original text of Appellate Court's judgment.

^[8] Idem; Rollo, pp. 98, 200-201.

^[9] Sec. 7, Rule 126, Rules of Court, provides that "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." Cited was Quantero v. NBI, G.R, No. L-35148, June 23, 1988.

^[10] Sec. 11, Rule 126 provides that "The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath."

^[11] 133 SCRA 800 (1984).

^[12] Citing 68 Am Jur 2d, 729)

^[13] Rollo, p. 200. The Order of December 15, 1995 mentions only P/Sr. Insp. Roger Brillantes who, in the Application of Search Warrant dated 14th December 95, stated that he had "verified the report" that Hussain had possession of weapons and ammunition (i.e., he had no personal knowledge of the fact). On the other hand, the Search Warrant adverts also to SPO4 Cesar Santiago and SPO1 Prisco Bello. According to Judge Casanova, if the Order of Dec. 15, 1995 is accurate, then Brillantes had no personal knowledge of the factual basis for the application for search warrant.

^[14] Emphasis supplied.

^[15] SEE Cruz, I. A., Constitutional Law, 1993 ed., pp. 136-137; Francisco, R.J., Criminal Procedure, 1993 ed., p. 545.

^[16] Sec. 3, ART. III, Constitution

^[17] Rollo, pp. 63-65

^[18] 232 SCRA 249, 267-268 (1994)

^[19] Underscoring and parenthetical insertion, by the Solicitor General's Office.