Petitioner’s grounds for this petition may be reduced to one issue: Whether or not the court a quo erred in holding that the firearms and ammunition seized from private respondent’s house are inadmissible as evidence for being the fruits of an illegal search.

The appellate court ruled the search wanting in due process for having been done at an unreasonable time of the evening causing "inconvenience" to the occupants of private respondent’s house, especially as there was no showing how long the nighttime search lasted. The court a quo applied the doctrine in Asian Surety & Insurance Co. v. Herrera, 54 SCRA 312 (1973), where we invalidated a nighttime search conducted on the basis of a warrant which did not specify the time during which the search was to be made.

Before us, petitioner contends that Asian Surety is inapplicable since the search warrant specified that the search be made at a reasonable hour of day or night.

The rule governing the time of service of search warrants is Section 8 of Rule 126 of the Rules of Court, which provides:

"Sec. 8. Time of making search. – The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night."

The general rule is that search warrants must be served during the daytime. However, the rule allows an exception, namely, a search at any reasonable hour of the day or night, when the application asserts that the property is on the person or place ordered to be searched. In the instant case, the judge issuing the warrant relied on the positive assertion of the applicant and his witnesses that the firearms and ammunition were kept at private respondent’s residence. Evidently, the court issuing the warrant was satisfied that the affidavits of the applicants clearly satisfied the requirements of Section 8, Rule 126 of the Rules of Court. The rule on issuance of a search warrant allows for the exercise of judicial discretion in fixing the time within which the warrant may be served, subject to the statutory requirement10 fixing the maximum time for the execution of a warrant.11 We have examined the application for search warrant,12 and the deposition of the witnesses supporting said application,13 and find that both satisfactorily comply with the requirements of Section 8, Rule 126. The inescapable conclusion is that the judge who issued the questioned warrant did not abuse his discretion in allowing a search "at any reasonable hour of the day or night." Absent such abuse of discretion, a search conducted at night where so allowed, is not improper.14

As prescribed in Adm. Circular No. 13 of the Supreme Court dated October 1, 1985:

"e. Search warrants must be in duplicate, both signed by the judge. The duplicate copy thereof must be given to the person against whom the warrant is issued and served. Both copies of the warrant must indicate the date until when the warrant shall be valid and must direct that it be served in the daytime. If the judge is satisfied that the property is in the person or in the place ordered to be searched, a direction may be inserted in the warrants that it be served at any time of the day or night;"

But was the time during which the search was effected "reasonable?"

Petitioner submits that 7:30 P.M. is a reasonable time for executing a search warrant in the metropolis. We find no reason to declare the contrary. The exact time of the execution of a warrant should be left to the discretion of the law enforcement officers.15 And in judging the conduct of said officers, judicial notice may be taken not just of the realities of law enforcement, but also the prevailing conditions in the place to be searched. We take judicial notice that 7:30 P.M. in a suburban subdivision in Metro Manila is an hour at which the residents are still up-and-about. To hold said hour as an unreasonable time to serve a warrant would not only hamper law enforcement, but could also lead to absurd results, enabling criminals to conceal their illegal activities by pursuing such activities only at night.16

The policy behind the prohibition of nighttime searches in the absence of specific judicial authorization is to protect the public from the abrasiveness of official intrusions.17 A nighttime search is a serious violation of privacy.18 In the instant case, there is no showing that the search which began at 7:30 P.M. caused an "abrupt intrusion upon sleeping residents in the dark"19 or that it caused private respondent’s family such prejudice as to make the execution of the warrant a voidable act. In finding that the duration of the search could have caused "inconvenience" for private respondent’s family, the appellate court resorted to surmises and conjectures. Moreover, no exact time limit can be placed on the duration of a search.20

But was the witness-to-search rule violated by the police officers who conducted the search notwithstanding the absence of private respondent and despite the refusal of the members of his household to act as witnesses to the search?

The witness-to-search rule is embodied in Section 7 of Rule 126, which reads:

"Sec. 7. Search of house, room, or premise, to be made in presence of two witnesses. – 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."

Petitioner submits that there was no violation of the aforementioned rule since the searchers were justified in availing of two witnesses of sufficient age and discretion, after respondent’s wife and maid refused. The regularity of the search is best evidenced by the "Certification of Orderly Search" and the receipt of the property seized signed by respondent’s wife.

We find merit in the petitioner’s argument that private respondent’s wife had no justifiable reason to refuse to be a witness to the search and that her refusal to be a witness cannot hamper the performance of official duty. In the absence of the lawful occupant of the premises or any member of his family, the witness-to-search rule allows the search to be made "in the presence of two witnesses of sufficient age and discretion residing in the same locality." There was no irregularity when the PNP-CISC team asked the bailiff of the Parañaque court and the barangay security officer to act as witnesses to the search. To hold otherwise would allow lawful searches to be frustrated by the mere refusal of those required by law to be witnesses.

In our view, the conduct of the nighttime search was reasonable under the circumstances in this case.1âwphi1 The unlicensed firearms and ammunition taken from private respondent’s residence pursuant to Search Warrant No. 92-94, are admissible in evidence against private respondent.

WHEREFORE, the petition is GRANTED. The assailed decision dated September 24, 1994 of the Court of Appeals in CA-G.R. No. SP 30129 is REVERSED and NULLIFIED. The firearms and ammunition seized from the residence of the Valentino C. Ortiz, pursuant to the search warrant issued by the Metropolitan Trial Court of Parañaque, dated August 13, 1992, shall be admissible as evidence in proceedings instituted by the State.

SECOND DIVISION

G.R. No. 117412               December 8, 2000

PEOPLE OF THE PHILIPPINES, petitioner,
vs.
COURT OF APPEALS and VALENTINO C. ORTIZ, respondents.