Republic of the Philippines

First Judicial Region

1st Municipal Circuit Trial Court

THE PEOPLE OF THE

PHILIPPINES, Criminal Case no.
Plaintif,

-versus- for:

”Direct Assault upon an

Accused. Agent of a Person in
x--------------------------------------------- Authority”
--x

MEMORANDUM
(Accused)

ACCUSED, by counsel, respectfully submits this Memorandum

to show that he is not guilty of direct assault upon an agent of a
person in authority as alleged in the information.

PREFATORY STATEMENT

“It is the duty of the courts to be watchful for the constitutional

rights of the citizen, and against any stealthy encroachments
thereon. Their motto should be obsta principiis.”
“Those who are supposed to enforce the law are not justified in
disregarding the rights of the individual in the name of order. Order
is too high a price to pay for the loss of liberty. As Justice Holmes
declared, I think it is less evil that some criminals escape than that
the government should play an ignoble part. It is simply not allowed
in free society to violate a law to enforce another, especially if the
law violated is the Constitution itself.” (Edmund Bulauitan y
Mauayan v. People of the Philippines, G.R. No. 218891, September
19, 2016)

STATEMENT OF THE CASE

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 This is a case of direct assault upon an agent of a person in
authority against _____. The charge against him came about when
police officers raided the house of his aunt on the afternoon of
February 6, 2014 at Pamutic, Pidigan, Abra on the basis of search
warrant Number 14-023. ______ allegedly pointed a pistol at the
police officers outside his house thereby warranting his indictment
for the crime of direct assault upon an agent of a person in
authority. The accusatory portion in the information against him
reads as follows:

“That on or about 4:00 p.m. of February 6, 2014, at Brgy.

Pamutic, Pidigan, Abra, Philippines, and within the jurisdiction
of this Court, the said accused, did then and there willfully,
unlawfully and feloniously drew a pistol at a team of raiding
police officers lead by PCI Lou Salvador Claro thereby making
serious intimidation and resistance to the said group while
engaged in the performance of official function as police
officers, to the damage and prejudice of the ofended parties.”

STATEMENT OF THE FACTS

The Prosecution’s Case

On February 6, 2014, at about 3:15 in the afternoon, police
officers proceeded to implement search warrant number 14-023
against _________________. Upon arrival at the place to be searched, a
man inside a house peeped on the window, and upon seeing the
man, the police officers rushed into the house shouting that they are
police officers. However, the man, instead of listening to them, ran
inside a room in the house. Afterwards, a commotion inside the
room ensued, then the accused was subdued and was handcuffed
by SPO1 ____________________-. Thereafter, upon arrival of barangay
officials they executed the search warrant and found a gun on top of
the bed.

The defense of the Accused

On February 6, 2014, at around 3 o’clock in the afternoon,
accused was in his aunt’s house at Pamutic, Pidigan, Abra, watching
television in a room below the stairway. While watching, the accused
suddenly heard the front door open but he did not mind it because
he thought it was just the children playing around. Suddenly, the
door of the room where he was in opened, and around three (3)
police officers came in pointing their guns at him. Thereafter, they
handcuffed the accused, dragged him outside the house then
showed him a search warrant. Thereafter, police officers entered the
house again and searched the place.
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 STATEMENT OF THE ISSUES

The sole issue in this case is:

Whether or not accused is guilty of Direct Assault upon an
agent of a person of authority.

ARGUMENTS

ACCUSED IS NOT
GUILTY OF DIRECT ASSAULT

Accused is not guilty of the crime of direct assault upon an

agent of a person of authority because as can be derived from the
testimony of one of the police officers who executed the search
warrant, specifically PO2 ___________, the accused did not point a
gun to them. The pertinent portion of the transcript of the
stenographic notes taken during the hearing on August 31, 2016 is
hereto faithfully reproduced for easy reference:

“Q – And when you reached the house of accusrd what did you
do Mr. Witness?

A – When we were at the house of xxxx which is inside the

compound, Major xxxxx informed us that there was a man
peeping at the window. So he ordered all other groups to
secure the area. And it was accused who is peeping.

Q – Where were you at that time when your team leader told
you that a man peeping in the window?

A – Since I was holding the copy of the Search Warrant, I was

the fourth person after Major xxxxx, xxxx, xxxxx was beside us
taking pictures.

Q – You were in front of the main door, or the side of the house
or the back door?

A – No sir. We are in a tactical position. One team leader and it

was Major xxxxx who burst inside the house.

Q – you immediately burst inside the house Mr. Witness? Upon

seeing the person who is peeping?

A – We burst in his house because we shouted at him that we

are Police Officers. Instead to listen to us, he ran inside a room,
one room and Major xxxxx told as that he was holding a gun.

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 Q – Did you personally see that he was holding a gun?
A – No sir. “

As can be gleaned from the above reproduced testimony of

PO2 xxxxxx, accused did not point a gun to them. Furthermore, if
accused indeed pointed a gun to them, it is contrary to human
knowledge and experience to immediately rush into the house as
what the police officers allegedly did. They would have taken the
proper precautions in order to subdue the accused without harm to
themselves. Anything that is repugnant to the standards of human
knowledge, observation and experience becomes incredible.

On the assumption that

Accused pointed a gun to them

Even on the assumption but not necessarily conceding that

accused pointed a gun to them, he is still not guilty of the crime
charged because of the glaring constitutional violations that the
police officers committed in executing the search warrant against
him.

Specifically, the requisites for the issuance 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 the facts personally known to them; and (5)
the warrant specifically describes the place to be searched and the
things to be seized.

We shall dwell in the fifth requisite specifically, that the warrant

must specifically describe the place to be searched and the things to
be seized. Search warrant No. 14-023 describes the place to be
searched as “inside the house and premises of said accused at the
above-mentioned address.”

The Supreme Court has held in numerous cases that for the
validity of a search warrant, the Constitution requires that there be a
particular description of the place to be searched and the persons or
things to be seized. The rule is that a description of a place to be
searched is sufficient if the officer with the warrant can, with
reasonable effort, ascertain and identify the place intended and
distinguish it from other places in the community. Any designation or
description known to the locality that leads the officer unerringly to
it satisfies the constitutional requirement. However, what is
controlling is what is stated in the warrant and not what
peace officers have in mind.

The house that is owned by accused is a one (1) story house as

evidenced by declaration of real property no. 9159 which is part of
the records of this case. The house that the police enforcers
searched in this case was a two (2) story house as can be derived
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from the testimony of Supt. xxxxx during his cross-examination, to
wit:

“Q – There is a Bungalow house and a two storey house, is that

correct Mr. Witness?

A – Yes, your Honor.

Q – And during your surveillance you determined that he was

only using the lower floor or top floor room?

A – Lower floor your Honor.”

It can be gleaned from the above transcripts therefor that the

police searched a two (2) story house which does not actually
belong to acused. The house that the police searched was that of
xxxxxx which is adjacent to the house of accused. This can be
evidenced by Tax Declaration No. 8410 which is a part of the records
of this case.

The police officers then in executing the search warrant

exceeded their authority because what search warrant No. 14-023
describes as the place to be searched is “inside the house and
premises of said accused.” However, what they really searched was
not the house of said accused but that of xxxxx.

The police had no authority to search the two (2) story house
of xxxxxx, which was not the place indicated in the warrant, even if
they really intended it to be the subject of their application. Indeed,
the place to be searched cannot be changed, enlarged or amplified
by the police.

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 the 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 was 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. (People v.
Annabelle Francisco y David, @ Annabelle Tablan, G.R. No. 129035,
August 22, 2002)

The Supreme Court has held that - “The Scope of the

respective powers of public officers and their agents is fixed. If they
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go beyond it and they violate any recognized rights of the citizens,
then the latter may resist the invasion, especially when it is clear
and manifest.” (3 Groizard, P. 456, cited in People v. Chan Fook 42
Phil 230)

In searching the house of xxxxx which was not stated in Search

Warrant 14-023, the police officers went beyond their respective
powers. accused therefor had all the right to resist the invasion and
assuming without conceding, the act of pointing a gun to the police
officers, such act was only a warning to the men pointing guns at
accused not to come forward and was not properly an act of
intimidation but rather of self-protection. (George Vytiaco v. CA et
al., G.R. Nos. L-20246-48, April 24, 1967)

Furthermore, the execution of the search warrant was flawed to

the effect that whatever transpired during the execution of such
warrant cannot be taken against the person they executed it against
for the right against unreasonable search and seizure is a core right
implicit in the natural right to life, liberty and property which is
guaranteed by no less than the Constitution. Article III, Section 2 of
the 1987 Philippine Constitution provides that:

“Section 2. The right of the people to be secure in their

persons, houses, papers, and efects 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.

To underscore the importance of an individual’s right against

unlawful searches and seizures, Article III, Section 3(2) of the
Constitution considers any evidence obtained in violation of this
right as inadmissible, to wit:
Section 3.
XXXXXX
2. Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any purpose
in any proceeding. (emphasis supplied)
Taking into consideration everything that have been discussed,
accused, cannot be convicted of the crime of direct assault upon an
agent of a person in authority because first and foremost, his
constitutional right against unreasonable search and seizure was
violated and therefor, his act of, on the assumption but not
necessarily conceding, pointing a gun to the police officers was not
an act of intimidation or resistance but of self-preservation.

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Secondly, the elements of direct assault upon an agent of a person
in authority are as follows:

A) That the ofender (a) makes an attack, (b) employs force, (c)
makes a serious intimidation, or (d) makes a serious
resistance;
B) That the person assaulted is a person in authority or his agent;
C) That at the time of the assault the person in authority or his
agent (a) is engaged in the actual performance of official
duties, or that he is assaulted, (b) by reason of the past
performance of official duties;
D) That the ofender knows that the one he is assaulting is a
person in authority or his agent in the exercise of his duties;
E) That there is no public uprising.

In the case at bar, the offender did not make an attack, he did not
employ force, he did not seriously resist, neither did he seriously
intimidate an agent of a person in authority as already discussed
above. The police officers who executed the search warrant was
neither engaged in the actual performance of duties nor were they
assaulted by reason of the past performance of official duties. They
were not in the actual performance of duties because as the
Supreme Court held “A person in authority or his agent who exceeds
his power or acts without authority is not in the exercise of the
functions of his office.” (People v. Hernandez, 59 Phil 343; People v.
Garcia, et al., 38 O.G. 94; People v. Tilos, et al.)

Therefore, the second reason why he could not be convicted of

the crime charged is the lack of elements to prove that he
committed the same, specifically letter A and C as can be gleaned
from the above cited elements of direct assault upon an agent of a
person in authority are missing in this case.

All told, the vitality of democracy lies not in the rights it

guarantees, but in the courage of the people to assert and use them
whenever they are ignored or worse infringed. Ultimately, accused
must not be convicted of the crime of direct assault upon an agent
of a person in authority.

RELIEF

WHEREFORE, it is respectfully prayed that judgment be

rendered acquitting accused of direct assault upon an agent of a
person in authority. Other reliefs just and equitable are also prayed
for.
Bangued, Abra, Philippines, this 15th day of May 20xx.

COUNSEL

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 Memorandum
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