FIRST DIVISION
G.R. No. 153087 August 7, 2003
BERNARD R. NALA, Petitioner,
vs.
JUDGE JESUS M. BARROSO, JR., Presiding Judge, Regional Trial Court, Branch 10, 10th Judicial Region, Malaybalay City, Respondent.
D E C I S I O N
YNARES-SANTIAGO, J.:
In determining the existence of probable cause for the issuance of a search warrant, the examining magistrate must make probing and exhaustive, not merely routine or pro forma examination of the applicant and the witnesses.1 Probable cause must be shown by the best evidence that could be obtained under the circumstances. The introduction of such evidence is necessary especially where the issue is the existence of a negative ingredient of the offense charged, e.g., the absence of a license required by law.2
This is a petition for certiorari under Rule 65 of the Rules of Court, seeking to annul the October 18, 20013 and February 15, 20024 Orders5 of the Regional Trial Court of Malaybalay City, Branch 10, which denied petitioner’s Omnibus Motion to Quash6 Search and Seizure Warrant No. 30-01.7
On June 25, 2001, PO3 Macrino L. Alcoser applied for the issuance of a warrant to search the person and residence of petitioner Bernard R. Nala, who was referred to in the application as "Rumolo8 Nala alias Long"9 of "Purok 4, Poblacion, Kitaotao, Bukidnon."10 The application was filed in connection with petitioner’s alleged illegal possession of one caliber .22 magnum and one 9 mm. pistol in violation of Republic Act No. 8294, which amended Presidential Decree No. 1866, or the law on Illegal Possession of Firearms. On the same day, after examining Alcoser and his witness Ruel Nalagon, respondent Presiding Judge of RTC of Malaybalay City, Branch 10, issued Search and Seizure Warrant No. 30-01, against "Romulo Nala alias Lolong Nala who is said to be residing at Purok 4, Poblacion, Kitaotao, Bukidnon."
At around 6:30 in the morning of July 4, 2001, Alcoser and other police officers searched petitioner’s house and allegedly seized the following articles, to wit –
-1- one piece caliber .38 revolver (snub-nose) with Serial Number 1125609
-1- one pc. fragmentation grenade (cacao type)
-1- one pc. .22 long barrel
-5- pcs live ammunition for caliber .38 revolver
-4- four pcs. of disposable lighter and unestimated numbers of cellophane used for packing of shabu11
On July 5, 2001, Criminal Cases Nos. 10943-2001-P and 10944-2001-P for illegal possession of firearms, ammunitions and explosives were filed against the petitioner before the 5th Municipal Circuit Trial Court of Kitaotao, Bukidnon.12
On August 8, 2001, petitioner filed an Omnibus Motion13 seeking to – (1) quash Search and Seizure Warrant No. 30-01; (2) declare inadmissible for any purpose the items allegedly seized under the said warrant; and (3) direct the release of the air rifle seized by the police officers.
Respondent judge denied the Omnibus Motion to Quash but ordered the return of the air rifle to petitioner. As to the validity of the search warrant, respondent found that probable cause was duly established from the deposition and examination of witness Ruel Nalagon and the testimony of PO3 Macrino L. Alcoser who personally conducted a surveillance to confirm the information given by Nalagon. The fact that the items seized were not exactly the items listed in the warrant does not invalidate the same because the items seized bear a direct relation to the crime of illegal possession of firearms. Respondent judge also found that petitioner was sufficiently identified in the warrant although his first name was erroneously stated therein as "Romulo" and not "Bernard", considering that the warrant was couched in terms that would make it enforceable against the person and residence of petitioner and no other. The dispositive portion of the questioned Order reads:
WHEREFORE, finding the Omnibus Motion to be without merit, the same is hereby DENIED. However, as to the questioned Air Rifle, the same is allowed to be withdrawn and ordered returned to herein movant.
SO ORDERED.14
Petitioner filed a motion for reconsideration but the same was denied on February 15, 2002.15 Hence, he filed the instant petition alleging that respondent judge committed grave abuse of discretion in issuing the questioned orders.
The issues for resolution are as follows: (1) Was petitioner sufficiently described in the search and seizure warrant? (2) Was there probable cause for the issuance of a search and seizure warrant against petitioner? and (3) Whether or not the firearms and explosive allegedly found in petitioner’s residence are admissible in evidence against him even though said firearms were not listed in the search and seizure warrant.
At the outset, it must be noted that the instant petition for certiorari was filed directly with this Court in disregard of the rule on hierarchy of courts. In the interest of substantial justice and speedy disposition of cases, however, we opt to take cognizance of this petition in order to address the urgency and seriousness of the constitutional issues raised.16 In rendering decisions, courts have always been conscientiously guided by the norm that on the balance, technicalities take a backseat against substantive rights, and not the other way around. Thus, if the application of the Rules would tend to frustrate rather than promote justice, it is always within our power to suspend the rules, or except a particular case from its operation.17
Article III, Section 2 of the Constitution guarantees every individual the right to personal liberty and security of homes against unreasonable searches and seizures, viz:
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 persons or things to be seized.
The purpose of the constitutional provision against unlawful searches and seizures is to prevent violations of private security in person and property, and unlawful invasion of the sanctity of the home, by officers of the law acting under legislative or judicial sanction, and to give remedy against such usurpations when attempted.18
Corollarily, Rule 126, Sections 4 and 5 of the 2000 Rules on Criminal Procedure provide for the requisites for the issuance of a search warrant, to wit:
SEC. 4. Requisites for issuing search warrant. – A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.
SEC. 5. Examination of complainant; record. – The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted.
More simply stated, the requisites of a valid search warrant are: (1) probable cause is present; (2) such presence is determined personally by the judge; (3) the complainant and the witnesses he or she may produce are personally examined by the judge, in writing and under oath or affirmation; (4) the applicant and the witnesses testify on facts personally known to them; and (5) the warrant specifically describes the person and place to be searched and the things to be seized.19
On the first issue, the failure to correctly state in the search and seizure warrant the first name of petitioner, which is "Bernard" and not "Romulo" or "Rumolo", does not invalidate the warrant because the additional description "alias Lolong Nala who is said to be residing at Purok 4, Poblacion, Kitaotao, Bukidnon" sufficiently enabled the police officers to locate and identify the petitioner. What is prohibited is a warrant against an unnamed party, and not one which, as in the instant case, contains a descriptio personae that will enable the officer to identify the accused without difficulty.20
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. This probable cause must be shown to be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay.21 In determining its existence, the examining magistrate must make a probing and exhaustive, not merely routine or pro forma examination of the applicant and the witnesses.22 Probable cause must be shown by the best evidence that could be obtained under the circumstances. On the part of the applicant and witnesses, the introduction of such evidence is necessary especially where the issue is the existence of a negative ingredient of the offense charged, e.g., the absence of a license required by law.23 On the other hand, the judge must not simply rehash the contents of the affidavits but must make his own extensive inquiry on the existence of such license, as well as on whether the applicant and the witnesses have personal knowledge thereof.
In Paper Industries Corporation of the Philippines (PICOP) v. Asuncion,24 we declared as void the search warrant issued by the trial court in connection with the offense of illegal possession of firearms, ammunitions and explosives, on the ground, inter alia, of failure to prove the requisite probable cause. The applicant and the witness presented for the issuance of the warrant were found to be without personal knowledge of the lack of license to possess firearms of the management of PICOP and its security agency. They likewise did not testify as to the absence of license and failed to attach to the application a "no license certification" from the Firearms and Explosives Office of the Philippine National Police. Thus -
Bacolod appeared during the hearing and was extensively examined by the judge. But his testimony showed that he did not have personal knowledge that the petitioners, in violation of PD 1866, were not licensed to possess firearms, ammunitions or explosives…
x x x x x x x x x
When questioned by the judge, Bacolod stated merely that he believed that the PICOP security guards had no license to possess the subject firearms. This, however, does not meet the requirement that a witness must testify on his personal knowledge, not belief.
x x x x x x x x x
Moreover, Bacolod failed to affirm that none of the firearms seen inside the PICOP compound was licensed. Bacolod merely declared that the security agency and its guards were not licensed. He also said that some of the firearms were owned by PICOP. Yet, he made no statement before the trial court that PICOP, aside from the security agency, had no license to possess those firearms. Worse, the applicant and his witnesses inexplicably failed to attach to the application a copy of the aforementioned "no license" certification from the Firearms and Explosives Office (FEO) of the PNP, or to present it during the hearing. Such certification could have been easily obtained, considering that the FEO was located in Camp Crame where the unit of Bacolod was also based….25
In the case at bar, the search and seizure warrant was issued in connection with the offense of illegal possession of firearms, the elements of which are – (1) the existence of the subject firearm; and (2) the fact that the accused who owned or possessed it does not have the license or permit to possess the same.26 Probable cause as applied to illegal possession of firearms would therefore be such facts and circumstances which would lead a reasonably discreet and prudent man to believe that a person is in possession of a firearm and that he does not have the license or permit to possess the same. Nowhere, however, in the affidavit and testimony of witness Ruel Nalagon nor in PO3 Macrino L. Alcoser’s application for the issuance of a search warrant was it mentioned that petitioner had no license to possess a firearm. While Alcoser testified before the respondent judge that the firearms in the possession of petitioner are not licensed, this does not qualify as "personal knowledge" but only "personal belief" because neither he nor Nalagon verified, much more secured, a certification from the appropriate government agency that petitioner was not licensed to possess a firearm. This could have been the best evidence obtainable to prove that petitioner had no license to possess firearms and ammunitions, but the police officers failed to present the same.
Regrettably, even the examination conducted by the respondent judge on Nalagon and Alcoser fell short of the required probing and exhaustive inquiry for the determination of the existence of probable cause. Thus –
COURT: [To witness Ruel Nalagon]
Q I am showing you this document/sworn statement of Ruel Nala[gon] given to PO3 Rodrigo Delfin, Investigator, SCOT/PDEU Bukidnon Police Provincial Office, Camp Ramon Onahon, Malaybalay City on or about 12:30 in the afternoon of June 25, 2001, in the presence of PO3 Macrino Alcoser, Operative of Special Case Operation Team. Are you the same Ruel Nalagon who has given a statement before the above-named police officer?
A Yes, Sir.
Q You have given a statement before the above—named police officer or Investigator that you have personal knowledge that a certain Romulo Nala in Purok 4, Poblacion, Kitaotao, Bukidnon has in his possession a .22 magnum pistol and 9MM pistol[?] Why and how do you know that he has in his possession such pistols?
A Because I personally saw and witnessed him bringing or carrying said pistols.
Q Where did you see him bringing or carrying said pistols?
A I saw him personally in the public market of Kitaotao, Bukidnon. I also witnessed him firing said pistol especially when he is drunk.
Q How often did you see him carrying and firing said pistols?
A Many times.
Q Do you know Romulo Nala? Are you friends with said person?
A Yes, sir because we are neighbors in Purok 4, Poblacion, Kitaotao, Bukidnon.
Q This Romulo Nala, is he bringing these two (2) pistols at the same time?
A No sir, he is bringing often times the .22 magnum and I saw him only twice bringing 9MM pistol.
Q Do you have something more to add or say in this investigation?
A None as of this moment.
That is all.27
COURT:
Next witness [PO3 Macrino L. Alcoser]
x x x x x x x x x
Q Regarding this application filed by your office, what is your basis in arriving into a conclusion that this certain Romulo Nala of Purok 4, Poblacion, Kitaotao, Bukidnon has in his possession illegal firearms?
A Based on the report of our reliable asset, a civilian agent who was able to personally witness… this Mr. Romulo Nala who has in his possession one (1) .22 magnum and one (1) 9MM pistols which are unlicensed.
Q What action [was] commenced by your office if any as to the report made by your asset regarding the alleged possession of Mr. Romulo Nala of unlicensed firearms?
A Our officer through authorized personnel, conducted surveillance operation on the spot, headed by this affiant.
Q What was the result of the surveillance conducted by your office?
A The result turned out to be positive and we have [concrete] evidence that indeed this Romulo Nala is engaged with the above illegal act.
Q Are there more information you wish to inform this Court.
A None, as of the moment.
Q Do you affirm… the truthfulness of the above statement made by you and [will you] voluntarily sign the same?
A Yes, sir.
That is all.28
It did not even occur to the examining judge to clarify how did the police officers conduct an "on the spot" surveillance on June 25, 2001 on a 2-hour interval between 12:30 p.m.,29 when Nalagon executed the affidavit, and 2:30 p.m.,30 when PO3 Macrino L. Alcoser testified before the respondent judge that they "conducted surveillance operation on the spot" right after Nalagon executed his affidavit. Even if we apply the presumption of regularity in the performance of duty, the "on the spot" surveillance claimed by Alcoser contradicts his statement in the application for the issuance of warrant that he "conducted long range surveillance" of petitioner. At any rate, regardless of the nature of the surveillance and verification of the information carried out by the police officers, the fact remains that both the applicant, PO3 Macrino L. Alcoser, and his witness Ruel Nalagon did not have personal knowledge of petitioner’s lack of license to possess firearms, ammunitions and explosive; and did not adduce the evidence required to prove the existence of probable cause that petitioner had no license to possess a firearm. Hence, the search and seizure warrant issued on the basis of the evidence presented is void.
Can petitioner be charged with illegal possession of firearms and explosive allegedly seized from his house? Petitioner contends that said articles are inadmissible as evidence against him because they were not the same items specifically listed in the warrant. The Office of the Provincial Prosecutor, on the other hand, claims that petitioner should be held liable because the items seized bear a direct relation to the offense of illegal possession of firearms. These arguments, however, become immaterial in view of the nullity of the search warrant which made possible the seizure of the questioned articles.
The settled rule is that where entry into the premises to be searched was gained by virtue of a void search warrant, prohibited articles seized in the course of the search are inadmissible against the accused. In Roan v. Gonzales,31 the prosecution sought to charge the accused with illegal possession of firearms on the basis of the items seized in a search through a warrant which the Court declared as void for lack of probable cause. In ruling against the admissibility of the items seized, the Court said –
Prohibited articles may be seized but only as long as the search is valid. In this case, it was not because: 1) there was no valid search warrant; and 2) absent such a warrant, the right thereto was not validly waived by the petitioner. In short, the military officers who entered the petitioner’s premises had no right to be there and therefore had no right either to seize the pistol and bullets."32
Conformably, the articles allegedly seized in the house of petitioner cannot be used as evidence against him because access therein was gained by the police officer using a void search and seizure warrant. It is as if they entered petitioner’s house without a warrant, making their entry therein illegal, and the items seized, inadmissible.
Moreover, it does not follow that because an offense is malum prohibitum, the subject thereof is necessarily illegal per se. Motive is immaterial in mala prohibita, but the subjects of this kind of offense may not be summarily seized simply because they are prohibited. A warrant is still necessary,33 because possession of any firearm becomes unlawful only if the required permit or license therefor is not first obtained.34
So also, admissibility of the items seized cannot be justified under the plain view doctrine. It is true that, as an exception, the police officer may seize without warrant illegally possessed firearm, or any contraband for that matter, inadvertently found in plain view. However, said officer must have a prior right to be in the position to have that view of the objects to be seized. The "plain view" doctrine applies when the following requisites concur: (a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (b) the discovery of the evidence in plain view is inadvertent; (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. The law enforcement officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area. In the course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating the accused. The object must be open to eye and hand and its discovery inadvertent.35 1âwphi1
No presumption of regularity may be invoked in aid of the process when the officer undertakes to justify an encroachment of rights secured by the Constitution. In this case, the firearms and explosive were found at the rear portion of petitioner’s house36 but the records do not show how exactly were these items discovered. Clearly, therefore, the plain view doctrine finds no application here not only because the police officers had no justification to search the house of petitioner (their search warrant being void for lack of probable cause), but also because said officers failed to discharge the burden of proving that subject articles were inadvertently found in petitioner’s house.
The issue of the reasonableness of the implementation of the search and seizure warrant, i.e., whether the search was conducted in the presence of witnesses and whether the air rifle which the trial court ordered to be returned to petitioner was indeed among the items seized during the search, are matters that would be best determined in the pending administrative case for grave misconduct and irregularity in the performance of duty against the police officers who conducted the search.
Considering that the search and seizure warrant in this case was procured in violation of the Constitution and the Rules of Court, all the items seized in petitioner’s house, being "fruits of the poisonous tree", are "inadmissible for any purpose in any proceeding." The exclusion of these unlawfully seized evidence is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures.37 Hence, the complaints filed against petitioner for illegal possession of firearms and explosive based on illegally obtained evidence have no more leg to stand on.38 Pending resolution of said cases, however, the articles seized are to remain in custodia legis.39
Finally, the Court notes that among the items seized by the officers were "four pcs. of disposable lighter and unestimated numbers of cellophane used for packing of shabu." These items are not contraband per se, nor objects in connection with the offense of illegal possession of firearms for which the warrant was issued. Moreover, it is highly preposterous to assume that these items were used in connection with offenses involving illegal drugs. Even granting that they were, they would still be inadmissible against the petitioner for being products of an illegal search. Hence, the subject articles should be returned to petitioner.40
WHEREFORE, in view of all the foregoing, the petition is GRANTED. The October 18, 2001 and February 15, 2002 Orders of the Regional Trial Court of Malaybalay City, Branch 10, are REVERSED and SET ASIDE insofar as it denied petitioner’s omnibus motion to quash the search warrant. Search and Seizure Warrant No. 30-01 dated June 25, 2001 is declared VOID and the articles seized by virtue thereof are declared inadmissible in evidence. Pending resolution of Criminal Case Nos. 10943-2001-P and 10944-2001-P for illegal possession of firearms, ammunitions and explosive against petitioner, the items (caliber .38 revolver with Serial Number 1125609 and 5 pieces live ammunitions; fragmentation grenade; and .22 long barrel) subject thereof, must remain in custodia legis. The four pieces of disposable lighter and cellophane seized should be returned to petitioner.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Vitug, Carpio, and Azcuna, JJ., concur.
Footnotes
1 People v. Tee, G.R. Nos. 140546-47, 20 January 2003, citing the Constitution, Article III, Section 2; 2000 Rules on Criminal Procedure, Rule 126, Sections 4 and 5. See also Pendon v. Court of Appeals, G.R. No. 84873, 16 November 1990, 191 SCRA 429, 438, citing Roan v. Gonzales, G.R. No. 71410, 25 November 1986, 145 SCRA 687; Mata v. Bayona, G.R. No. L-50720, 26 March 1984, 128 SCRA 388.
2 Paper Industries Corporation of the Philippines v. Asuncion, 366 Phil. 717, 736-737 (1999), citing People v. Estrada, 357 Phil. 377 (1998).
3 Rollo, p. 91.
4 Rollo, p. 130.
5 Penned by Judge Jesus M. Barroso, Jr.
6 Records, p. 8.
7 Records, p. 6.
8 Spelled as "Rumolo" in the application for search and seizure warrant and spelled as "Romulo" in the issued search and seizure warrant.
9 Records, p. 1.
10 Id.
11 Return of Search Warrant noted at the back of Search and Seizure Warrant No. 30-01, Records, p. 6.
12 Rollo, pp. 161-162.
13 Rollo, p. 46.
14 Rollo, p. 93.
15 Rollo, p. 130.
16 Roan v. Gonzales, supra, note 1, at p. 698, citing Burgos, Sr. v. Chief of Staff, 218 Phil. 754 (1984); Philippine Rural Electric Cooperatives Association, Inc. v. Secretary of the Department of Interior and Local Government, G.R. No. 143076, 10 June 2003. See also Fortich v. Corona, 352 Phil. 461, 480-481 (1998), citing People v. Cuaresma, G.R. No. 67787, 18 April 1989, 172 SCRA 415.
17 Coronel v. Desierto, G.R. No. 149022, 8 April 2003, citing People v. Flores, 336 Phil. 58 (1997); De Guzman v. Sandiganbayan, G.R. No. 103276, 11 April 1996, 256 SCRA 171; Manila Railroad Co. v. Atty. General, 20 Phil. 523 (1911); Viuda de Ordoveza v. Raymundo, 63 Phil. 275 (1936); Olacao v. National Labor Relations Commission, G.R. No. 81390, 29 August 1989, 177 SCRA 38; Legasto v. Court of Appeals, G.R. Nos. 76854-60, 25 April 1989, 172 SCRA 722; City Fair Corporation v. National Labor Relations Commission, 313 Phil. 464 (1995); Republic v. Court of Appeals, G.R. Nos. L-31303-04, 31 May 1978, 83 SCRA 453; Bank of America, NT & SA v. Gerochi, Jr., G.R. No. 73210, 10 February 1994, 230 SCRA 9.
18 Silva v. Presiding Judge, Regional Trial Court of Negros, Oriental, Branch XXXIII, G.R. No. 81756, 21 October 1991, 203 SCRA 140, 144, citing Alvero v. Dizon, 76 Phil. 637 (1946).
19 Paper Industries Corporation of the Philippines v. Asuncion, supra, note 2 at p. 731, citing Republic v. Sandiganbayan, G.R. Nos. 112708-09, 29 March 1996, 255 SCRA 438.
20 People v. Veloso, 48 Phil. 169, 181 (1925).
21 Prudente v. Dayrit, G.R. No. 82870, 14 December 1989, 180 SCRA 69, 76, citing Quintero v. National Bureau of Investigation, G.R. No. L-35149, 23 June 1988, 162 scra 467; 20th Century Fox Film Corporation v. Court of Appeals, G.R. Nos. L-76649-51, 19 August 1988, 164 SCRA 655; People v. Sy Juco, 64 Phil. 667 (1937); Alvarez v. CFI, 64 Phil. 33 (1937); United States v. Addison, 28 Phil. 566 (1914).
22 People v. Tee, supra, note 1; Pendon v. Court of Appeals, supra, note 1.
23 Paper Industries Corporation of the Philippines v. Asuncion, supra, note 2.
24 Id.
25 Id., at pp. 733-736.
26 Del Rosario v. People, G.R. No. 142295, 31 May 2001, 358 SCRA 373, 389, citing People v. Castillo, 382 Phil. 499 (2000); People v. Dorimon, 378 Phil. 660 (1999); People v. Cerveto, 374 Phil. 220 (1999); Cadua v. Court of Appeals, 371 Phil. 627 (1999); People v. Khor, 366 Phil. 762 (1999).
27 Records, pp. 4-5.
28 Records, pp. 5 and 5a.
29 Records, p. 2.
30 Records, p. 4.
31 Supra, note 1.
32 Id., at pp. 696-697.
33 Id., at 697.
34 Del Rosario v. People, supra, note 27.
35 People v. Doria, 361 Phil. 595, 633-634 (1999), citing Harris v. United States, 390 U.S. 234, 19 L. Ed. 2d 1067, 1069 (1968); Bernas, The Constitution of the Republic of the Philippines, at 174 (1996); Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564 (1971); Texas v. Brown, 460 U.S. 730, 75 L. Ed. 2d 502, 510 [1983]; People v. Musa, G.R. No. 96177, 27 January 1993, 217 SCRA 597, 611 (1993); Roan v. Gonzales, supra, note 1; Cruz, Constitutional Law, p. 151 (1996).
36 Petition, Rollo, pp. 30-31.
37 Paper Industries Corporation of the Philippines v. Asuncion, supra, note 2 at p. 740, citing The Constitution, Article III, Section 2; Stonehill v. Diokno, 126 Phil. 738 (1967); Mapp v. Ohio, 367 US 643 (1961).
38 Id.
39 Roan v. Gonzales, supra, note 1 at p. 698.
40 Del Rosario v. People, supra, note 27, at pp. 394-395.
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