People v Gesmundo; G.R. No. 89373; 09 Mar 1993; 219 SCRA 743

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A team of policemen arrived at the house of accused-appellant armed with a search warrant. She invited one of them to enter the house. While seated at the sala and showing her the search warrant, the other policeman had entered the house through the backdoor which was open and found a plastic bag containing dried marijuana flowering tops in the kitchen.

Whether or not the search and seizure was lawful.

NO. Apparently, the search of the accused-appellant’s house was conducted in violation of Section 7, Rule 126 of the Rules of Court which specifically 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 (2) witnesses of sufficient age and discretion residing in the same locality. This requirement is mandatory to ensure regularity in the execution of the search warrant. Violation of said rule is in fact punishable under Article 130 of the RPC.

Appealed judgment is REVERSED. Appellant is ACQUITTED of the crime charged.

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