REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

NATIONAL CAPITAL JUDICIAL REGION
BRANCH 2, MANILA CITY

PEOPLE OF THE PHILIPPINES,

Plaintiff,
- versus
09-267753

Crim.

Case

No.

For: For Violation of

Sec. 11 (3), Art. II, RA
9165
NORMAN DIMAIN Y BUENAFE,
Accused.
x ----------------------------------------------- x
MEMORANDUM OF DEFENDANT
STATEMENT OF FACTS
Prosecutions View:
PO3 Duran with P01 Cunanan and Laxa were at Concha Street,
San Andres Bukid, Manila1. At 1:45am April 13, 2009, they saw
NORMAN BUENAFE DIMAIN, accused, with two other companions
holding cigarette pipe2. They were five meters away from the
accused when they smelled the pungent smell of marijuana 3. The
officers immediately arrested the suspect while the other two run
away from them4. PO3 was able to recover an improvised pipe
from the accused5.
On the police report, Norman was subjected to search and the
police officers recovered improvised pipe with some marijuana 6.
They marked it NDB. The police officers brought the accused to
the Ospital ng Maynila for Medical/Physical Examination 7. Then
1 TSN page 3
2 Joint Affidavit of Apprehension
3 TSN page 4
4 TSN page 4
5 TSN page 4
6 Joint Affidavit of Apprehension
7 Joint Affidavit of Apprehension

they brought the accused and pieces of evidences in the police

station for investigation and disposition 8. The evidence was
brought to SOCO, MPD for examination to determine if the
specimen submitted is positive for dangerous drug 9. The results
yielded positive for dangerous drug.10
On trial, P03 told the court that he made the marking with use of ball
pen NDB on the pipe based on Norman Dimain Buenafe 11. Then he
turned over the said pipe when the investigation started 12. He also
identified the said pipe as the same pipe found on the scene13.

Defense View
The accused was drinking alone at 2173 Concha Street on April
13, 200914. When he was about to buy two cigarettes, he saw two
men running and bumped him15. After he was thrown down by the
bump, he was arrested by police officers16.
The police officers told him that the accused made their life hard
because he was running from them17. However, he asked them
what he did wrong18. Then they brought him to the police
station19. He was arrested for illegal drugs 20. He said that the
drugs came from police officer Duran and they just implanted it
to him21.
It was revealed on trial that there was an encounter with the
arresting officer before the incident22. He bumped their vehicle23.
At April 13, 2009, Ryan Bilbao was at computer shop located
along Concha Street24. He saw Norman eating junk foods and
smoking and drinking at that time 25. He saw the police officers
going to Normans place and arrested him 26. He also saw the
companions of Norman running away from the police officers 27.

8 Joint Affidavit of Apprehension

9 Joint Affidavit of Apprehension
10 Joint Affidavit of Apprehension
11 TSN page 4, page 8
12 TSN page 6
13 TSN page 6
14 TSN page 14
15 TSN page 14
16 TSN page 15
17 TSN page 15
18 TSN page 15
19 TSN page 15
20 TSN page 16
21 TSN page 16
22 TSN page 17
23 TSN page 17
24 TSN page 21
25 TSN page 22
26 TSN page 22
27 TSN page 22

The witness said that the police officers search the body of
Norman however they did not find any illegal item like marijuana
from the accused28.

Arguments/Issues
I.
THE ARREST WAS ILLEGAL
II.
THE EVIDENCE OBTAINED BY THE
PROSECUTION IS INADMISSIBLE
II.
ACCUSED SHOULD BE ACQUITTED BECAUSE THE
PROSECUTION FAILED TO SHOW AN UNBROKEN CHAIN OF
CUSTODY OF THE ALLEGED PIPE.

III.
IN VIEW OF THE FOREGOING ARGUMENTS, THE EVIDENCES
AVAILABLE ARE THERE IS INSUFFICIENCY OF EVIDENCE

28 TSN page 23

I
There was no probable cause for the P03 Bob Duran et al to
arrest Accused.
What constitutes a reasonable or unreasonable warrantless
search or seizure is purely a judicial question, determinable from
the uniqueness of the circumstances involved, including the
purpose of the search or seizure, the presence or absence of
probable cause, the manner in which the search and seizure was
made, the place or thing searched, and the character of the
articles procured.29
Recent jurisprudence holds that in searches incident to a lawful
arrest, the arrest must precede the search; generally, the process
cannot

be

reversed.

Nevertheless,

search

substantially

contemporaneous with an arrest can precede the arrest if the

police have probable cause to make the arrest at the outset of
the search. Thus, given the factual milieu of the case, we have to
determine whether the police officers had probable cause to
arrest the accused. Although probable cause eludes exact and
concrete definition, it ordinarily signifies a reasonable ground of
suspicion supported by circumstances sufficiently strong in
themselves to warrant a cautious man to believe that the person
accused is guilty of the offense with which he is charged. 30

29 (People v. Nuevas, G.R. No. 170233, February 22, 2007, 516 SCRA 463, 475-476
citing People v. Tudtud, 458 Phil. 752, 771 (2003))
30 (People v. Aruta, 351 Phil. 868, 880 (1998))

Section 5, Rule 113 of the Revised Rules of Criminal Procedure

lays down the basic rules on lawful warrantless arrests, either by
a peace officer or a private person, as follows:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense;
(b) When an offense has just been committed and he has
probable cause to believe based on personal knowledge of facts
or circumstances that the person to be arrested has committed it;
and
(c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or is temporarily confined while his case is pending, or
has escaped while being transferred from one confinement to
another.
For the warrantless arrest under paragraph (a) of Section 5 to
operate, two elements must concur: (1) the person to be arrested
must execute an overt act indicating that he has just committed,
is actually committing, or is attempting to commit a crime; and
(2) such overt act is done in the presence or within the view of
the arresting officer.19 On the other hand, paragraph (b) of
Section 5 requires for its application that at the time of the arrest,
an offense had in fact just been committed and the arresting
officer had personal knowledge of facts indicating that the
appellant had committed it.31
In both instances, the officers personal knowledge of the fact of
the commission of an offense is absolutely required. Under
paragraph (a), the officer himself witnesses the crime while under

31 (People v. Cuizon, G.R. No. 109287, April 18, 1996, 256 SCRA 325, 341.)

paragraph (b), he knows for a fact that a crime has just been
committed.
Base on the facts, P03 Duran et al. just based probable cause on
the pungent smell of marijuana allegedly emitting from the
accused.
Marijuana

Odor

as

Component

of

Totality

of

Circumstances
As American Jurisprudence has persuasive effect in Philippine
courts, the defendant cites decisions by American Courts.
American Jurisprudence held that: "[w]hile smelling marijuana
does not assure that marijuana is still present, the odor certainly
provides probable cause to believe that it is." But this probable
cause, or even knowledge of the presence of marijuana, does not
in itself authorize the police to search any place or arrest any
person in the area. The police must have additional factors to
"localize" or "particularize" the placement of the marijuana to
justify a search or arrest.32
To substantiate a warrantless search, "the question is whether the
totality of the circumstances is sufficient to warrant a reasonable
person to believe that contraband or evidence of a crime will be
found in a particular place." When considering the legality of a
warrantless arrest, one considers "whether the totality of the
circumstances indicate to a reasonable person that a 'suspect has
committed, is committing, or is about to commit' a crime." But in
either instance, the "quantum of facts required for the officer to
search or seize is probable cause" for either a search or seizure.33
The officers, P03 Duran et al. had no probable cause to arrest
Accused because there were no other factors that strengthened
the officer's conclusion that probable cause existed. There was no

32 United States v. Humphries, 372 F. 3d 653 (4th Cir. 2004)

33 Michigan v. DiFillippo, 443 U.S. 31, 37 (1979).

suspicious conduct, and that the encounter took place in an area

not known for drug trafficking.
Officer Experience and Training in Drug Detection Is Key
The ability of an officer to explain and justify the accuracy of his
perceptions is important when he or she relies on those
perceptions to formulate probable cause. For instance, The Court
held that a police officer had probable cause to search a
bayong after smelling marijuana because he had experience for
his stint as narcotics police and had smelled marijuana hundreds
of times.34
No evidence was given in this case that P03 Bob Duran et al. had
experience in narcotics. Because the officers had not been
trained in "determining the length of time a residual odor or
marijuana has been present" it was not reasonable for him to
believe that the Accused smoked marijuana.
II
In the United States, where the fruit of the poisonous tree
doctrine originated, the basis of the doctrine is the Fourth
Amendment to the U.S. Constitution which provides that the
"right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall
not be violated..." The Fourth Amendment has been incorporated
into the Philippine Constitutions of 1935, 1973 and 1987. As
found in Article III, Sec. 2, of the present (1987) Constitution, it
reads in pertinent part: 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. . .

34 (People vs Anita Claudio, G.R. No. 72564 April 15, 1988)

The fruit of the poisonous tree doctrine is an exclusionary rule

of evidence that precludes the admission into evidence of the
product of evidence obtained unlawfully through illegal search or
seizure. Pursuant to this doctrine, evidence obtained improperly
through illegal search or seizure cannot yield admissible outcome
or fruits. Even knowledge learned from the inadmissible evidence
is also inadmissible.
The 1987 Constitution states that a search and consequent
seizure must be carried out with a judicial warrant; otherwise, it
becomes unreasonable and any evidence obtained therefrom
shall be inadmissible for any purpose in any proceeding. 35 Said
proscription, however, admits of exceptions, namely:
1.

Warrantless search incidental to a lawful arrest;

2.

Search of evidence in plain view;

3.

Search of a moving vehicle;

4.

Consented warrantless search;

5.

Customs search;

6.

Stop and Frisk; and

7.

Exigent and emergency circumstances. 36

Obviously, this is an instance of seizure of the "fruit of the

poisonous tree," hence, the confiscated item is inadmissible in
evidence consonant with Article III, Section 3(2) of the 1987
Constitution, "any evidence obtained in violation of this or the
preceding section shall be inadmissible for any purpose in any
proceeding."

Without the confiscated pipe, accused cannot be convicted

based

on

the

remaining

evidence.

Thus,

an

acquittal

warranted.

35 (Section 2 and 3 (2), Article III of the 1987 Constitution)

36 People v. Nuevas, G.R. No. 170233, February 22, 2007, 516 SCRA 463, 475-476
citing People v. Tudtud, 458 Phil. 752, 771 (2003).

is

As clearly stated in People v. Nuevas,

x x x In the final analysis, we in the administration of justice
would have no right to expect ordinary people to be law-abiding if
we do not insist on the full protection of their rights. Some
lawmen, prosecutors and judges may still tend to gloss over an
illegal search and seizure as long as the law enforcers show the
alleged evidence of the crime regardless of the methods by which
they were obtained. This kind of attitude condones law-breaking
in the name of law enforcement. Ironically, it only fosters the
more rapid breakdown of our system of justice, and the eventual
denigration

of

society.

While

this

Court

appreciates

and

encourages the efforts of law enforcers to uphold the law and to

preserve the peace and security of society, we nevertheless
admonish them to act with deliberate care and within the
parameters set by the Constitution and the law. Truly, the end
never justifies the means.
III
Under Section 11, Article II of R.A. No. 9165, the elements
necessary in a prosecution for the illegal possession of drugs are:
1.) The accused is in possession of an item or object that is
identified to be a prohibited or dangerous drug.
2.) Such possession is not authorized by law.
3.) The accused freely and consciously possessed the drug.
The prosecution must prove that the possession took place. The
corpus delicti the body or substance of the crime which
establishes the fact that crime has actually been committed
must also be presented in court. In cases involving narcotics, the
illegal drug itself constitutes the corpus delicti of the offense. The
existence of the illegal drug is vital for the court to find the
accused guilty beyond reasonable doubt. The chain of custody

rule ensures that unnecessary doubts on the identity of the

evidence are removed.
In Malillin v. People, the Supreme Court explained how it expects
the chain of custody or movement of the seized evidence to be
maintained. There must be testimony about every link in the
chain, from the moment the object seized was picked up to the
time it is offered in evidence. Every person who touched the
object must describe
1.) How and from whom it was received, where it was, and what
happened to it while in the witnesss possession,
2.) The condition in which it was received, and the condition in
which it was delivered to the next link in the chain.
These witnesses must describe the precautions taken to ensure
that there had been
1. no change in the condition of the object and
2. no opportunity for someone not in the chain to possess the
object.
PO3 Duran, one of the arresting officers, testified on the marking
and eventual turnover of the allegedly seized pipe to the
investigator. But no explanation was given on its custody in the
interim from the time it was turned over to the investigator to
its turnover for laboratory examination. The case records also do
not show what happened to the allegedly seized pipe between
the turnover by the chemist to the investigator and its
presentation in court.
IV
It is incumbent upon the prosecution to adduce evidence
sufficient to prove beyond reasonable doubt (a) the commission
of the crime, and (b) the precise degree of participation therein

by the accused.37

The charges against an accused must be

dismissed if there is no competent or sufficient evidence adduced

that would sustain the charges against him.
It is well-settled rule that conviction for a criminal offense
should be based on clear and positive evidence and not on mere
assumption.38 The burden lies upon the prosecution to prove the
guilt of the accused beyond reasonable doubt rather that upon
the accused to prove that he is in fact innocent. 39 Failing in this,
the presumption of innocence will prevail.40

37 (Gutib vs. Court of Appeals, 312 SCRA 365)

38 (Gaerlan vs. CA 179 SCRA 20)
39 (People vs. Lati, 184 SCRA 336)
40 . (Sec. 1 (a) Rule 115)

PRAYER
WHEREFORE, premises considered, it is respectfully prayed
that the Honorable Court dismiss the criminal charge for
violation of Sec. 11 (3), Art. II, RA 9165against the accused
NORMAN BUENAFE DIMAIN be DISMISSED.
Other reliefs, just and equitable, are likewise prayed for.
Manila City, Philippines, March 23, 2015.
MORENO & MANCIA
LAW CENTER
TH
20 FLOOR, M&M TOWER
MAKATI, CITY
Counsel for the Accused
by:
RUFINO MORENO III
Roll No. 12345
IBP No. 9876; 12/29/2008
MCLE Exempt (Admitted
2007)
RYLE SCOTT MANCIA
Roll No. 67890
IBP No. 54321; 12/29/2008
MCLE Exempt (Admitted
2007)

ATTY. JANE T. JAVIER

The Branch Clerk of Court
RTC-MANILA, Branch 2
MANILA CITY
Greetings!
Please submit this for the consideration
Honorable Court promptly upon receipt hereof.

of

the

RUFINO MORENO & RYLE MANCIA

cc: ALEXANDER T. YAP

Asst. Provincial Prosecutor
OFFICE OF THE PROVINCIAL PROSECUTOR
MANILA CITY