REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

FIRST JUDICIAL REGION
BRANCH 123
BAGUIO CITY

PEOPLE OF THE PHILIPPINES,

Plaintiff,

-versus- Criminal Case No. 2003-0242

_______________________________,
Accused.
x---------------------------------------------------------------------------------------x

DEMURRER TO EVIDENCE

NOW COMES the accused, by counsel, most respectfully moves for

the dismissal of the above-entitled case on the sole ground that:

THE PROSECUTION FAILED

TO PROVE ALL THE
ELEMENTS OF THE CRIME
CHARGED AS THE
EVIDENCE SECURED BY
THE ARRESTING OFFICER
IS INADMISSIBLE IN
EVIDENCE.

DISCUSSION
The prosecution presented two (2) witnesses to prove its case:
1. The Forensic Chemist, and
2. SPO2 Paulino

The defense admitted the Laboratory Examination result of the things

seized from the accused, hence the testimony of the Forensic chemist
was dispensed with. The prosecution only presented SPO2 Paulino to
prove its case.

On the direct examination of SPO2 Paulino, it was proven that he is a

member of PNP Baguio Police Station since 1998 up to the present. That
On February 20, 2003 he being an Intelligence Officer he received a
telephone call. That his tour of duty until the following morning. At
around 11:45 in the evening of February 20, 2003 while SPO2 Paulino
was in Torres, Baguio City, while he together with Antonio Caliwliw
waited for the user/pusher. That they were able to wait for the person
named Junior who is a user/pusher. That they saw a motor tricycle
which they tried to stop, but the persons who were riding the tricycle did
not stop,
SPO2 Paulino and Kgwd Caliwliw chased them because according to
Kgwd. They were positive in buying shabu. That they were able to catch
them and started checking their luggage. That they saw the accused
throw his wallet. That the accused was inside the tricycle. That Kgwd
Caliwliw picked up the wallet and showed it to SPO2 Paulino and when
they opened the wallet they saw the plastic sachet of shabu.

On cross, SPO2 Paulino testified that he is the Intelligence Operatives

Officer of Baguio City Police Station when he arrested the accused, The
during his incumbency as Intelligence Operatives Officer of Baguio City
Police Station he maintains informants or otherwise known as Police
assets; that that his informants gives him positive results about drug
users in the vicinity of Baguio City particularly in the place of the
accused; that one of the notorious addict that he know is the accused;
that he knows where they are buying shabu; that he even knew the route
where they are passing; that they failed to file for a search warrant; that
it was also admitted during the pre-trial conference that he already knew
the identity of the accused prior to the search and as well as that they
have not applied for a search warrant despite the fact the he has a
sufficient time to apply for a warrant.

DISCUSSION
Justice Oliver Wendell Holmes once stated in Olmstead vs. U.S. that...
It is desirable that criminals should be detected, and to that end that all
available evidence should be used. It also is desirable that the
government should not itself foster and pay for other crimes, when they
are the means by which the evidence is to be obtained. If it pays its
officers for having got evidence by crime, I do not see why it may not as
well pay them for getting it in the same way, and I can attach no
importance to protestations of disapproval if it knowingly accepts and
pays and announces that it will pay for the fruits. We have to choose,
and for my part I think it a less evil that some criminals should escape
than that the government should play an ignoble part. This
/discussion was made by Justice Holmes when the Court was made to
choose between letting suspected criminals escape or letting the
government play an ignoble part.

First Ground:

THE SEARCH PRECEDED THE ARREST

It is not disputed that SPO2 Paulino has no warrant when he arrested

and searched the accused. The only justification was the tip that they
received which was not even proved during trial that someone would be
buying shabu from Baguio City.

Pros. Ballesteros:
Q: At around 11:45 in the evening of February 20, 2003 do you remember where
were you?
A: Yes sir.

Q: Where were you?

A: At barangay Torres, Mapandan, sir

Q: Were you alone at that time?

A: I was with Barangay kagawad sir.

Q: What is the name of that barangay kagawad?

A: Antonio Caliwliw sir.
Q: While on the said place together with kagawad., is there any usual incident that
transpired?
A: According to the report, we waited for a person named Junior who is
user/pusher, sir.

Q: Coming from?
A: Urdaneta City, sir

Q: Were you able to wait for the subject user/pusher who is coming from Urdaneta
city as you said
A: Yes sir

Q: What happened next

A: When we saw the motor we tried to stop it but they did not stop

Q: This motor as you said, is it single or tricycle?

A: A tricycle

Q: And after that what happened next when this tricycle when you tried to stop it but
they did not stop, what did you do next if any?
A: We chased them sir.

Q: Why did you chased them

A: Because kagawad told us they were positive

Q: What do you mean by positive

A: They were positive for buying shabu, sir

Q: Were you able to catch up with them

A: Yes sir.

Q: And when you catched up with them what happened next?

A: We stopped the tricycle and we made our check up

Q: How many occupants of the tricycle after flagging it down?

A: Three (3) sir

Q: When you said you checked them, what do you mean by that
A: We checked the luggage, sir

Q: What happened next when you checked his luggage

A: We saw that _____________ threw his wallet, sir

Q: Where was he located when you said he allegedly throw his wallet?
A: He was aboard the tricycle sir

Q: Was he alone at that time in the sidecar?

A: They were three (3), sir

Q: That includes the tricycle driver?

A: The tricycle driver was the 4th passenger sir

Q: After you saw Jennifer Bongato threw his wallet, what did you do next?
A: Kagawad Caliwliw picked up the wallet and showed it to me.

Q: After he picked and showed to you, what happened next.

A: We opened the wallet and we saw the plastic sachet of shabu, sir

It is very clear from the answers of SPO2 Paulino that he received a

cellphone call, however it did not state what is the content of that
telephone call. That they waited for a person named Junior who is a
user/buyer. That they were able to wait for the subject user/pusher who
is coming from Urdaneta City but when they saw a motor tricycle where
the accused was boarding, SPO2 Paulino flagged the tricycle down and
after they flagged it down, they check the luggage of the passenger and
after the search they allegedly saw a sachet of shabu and thereafter
arrested the accused, however, the person that was arrested in not a
person named Junior but a person in the name of Jennifer Bongato.
Under the case for consideration, It is significant to note that the search
in question preceded the arrest. And in the recent Jurisprudence which
is PEOPLE OF THE PHILIPPINES vs. CHUA HO SAN @ TSAY HO SAN,
[G.R. No. 128222. June 17, 1999.] Arrest must precede the search,
the process cannot be reversed. This was elicited from SPO2 Paulino,
to wit:

Q: When you said you checked them, what do you mean by that
A: We checked the luggage, sir

Q: After you saw ______________ threw his wallet, what did you do next?
A: Kagawad Caliwliw picked up the wallet and showed it to me.

Q: After he picked and showed to you, what happened next.

A: We opened the wallet and we saw the plastic sachet of shabu, sir

It is very clear from the answer of SPO2 Paulino that the search preceded
the arrest and this scenario or act by SPO2 Paulino runs counter to the
case of PEOPLE OF THE PHILIPPINES vs. CHUA HO SAN @ TSAY HO
SAN, [G.R. No. 128222. June 17, 1999.]There was no warrant of arrest
or search warrant issued by a judge after personal determination by him
of the existence of probable cause. The accused was not caught in
flagrante delicto nor was a crime about to be committed or had just been
committed to justify the warrantless arrest as allowed under Rule 113 of
the Rules of Court.

Neither can we say that there was a search incidental to lawful arrest, as
the accused was not caught in flagrante delicto nor was a crime about to
be committed or had just been committed, to reiterate, what was the
accused was doing was just riding a tricycle and there was no outward
indication that called for his arrest. To all appearances, he was like any
of the other passengers innocently riding from a tricycle. It was only
when they were flagged down and did not stop was the accused suddenly
becomes a suspect and so subject to search and eventual arrest. Let us
bear in mind the glaring fact that the accused was searched and
then arrested. Thus the provision on Rule 126 Section 12 of the Rules of
Court will not apply.

It is also very significant to note, that informant was not accurate

regarding the identity of the accused, this was elicited from the answers
of SPO2 Paulino, to wit:

Q: While on the said place together with kagawad., is there any usual incident that
transpired?
A: According to the report, we waited for a person named Junior who is
user/pusher, sir.

Q: Were you able to wait for the subject user/pusher who is coming from Urdaneta
city as you said
A: Yes sir

However, the person whom the informer’s finger pointed at is not the
Junior who bought shabu from Urdaneta City at but a different person in
the name of _________________________ who was merely riding a tricycle.
And there is nothing wrong in riding a tricycle to justify warrantless
arrest especially the identity of the person to be arrested is not certain.
Thus, notwithstanding tips from confidential informant more so
when the identity of the person to be arrested is not certain and
regardless of the fact that the search yielded contraband, the mere
act of looking from side to side while holding one's abdomen,
(People vs. Mengote 210 SCRA 174) or of standing on a corner with
one's eyes moving very fast, looking at every person who came near,
(Malacat vs. CA 347 P 462) does not justify warrantless arrest under
said Section 5 (a). Neither does putting something in one's pocket,
(Pp vs. Rodriquez 232 SCRA 498) handing over one's baggage, (Pp.
Vs. Cuison 326 P 345) riding a motorcycle, Pp. Vs. Encida 345 P
301) nor does holding a bag on board a trisikad sanction State
intrusion. The same rule applies to crossing the street per se. (Pp.
Vs. Aruta 351 P 868)

Second Ground:

THERE WAS NO URGENCY TO DISPENSE SEARCH WARRANT

The right against unreasonable search and seizures is secured by Section

2 Article II of the Constitution, which states:

SEC. 2. The right of the people to be secured 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
places to be searched and the persons or things to be
seized.

The rule is that a search and seizure must be carried out through or with
a judicial warrant, otherwise, such search and seizure becomes
"unreasonable" within the meaning of the above-quoted constitutional
provision, and any evidence secured thereby, will be inadmissible in
evidence "for any purpose in any proceeding."Section 3 (2), Article III of
the Constitution explicitly provides:

(2) Any evidence obtained in violation of . . . the

preceding section shall be inadmissible for any
purpose in any proceeding.

Granting arguendo, that the accused was really positive in buying shabu,
it can be gleaned from the answers of SPO2 Paulino that there was no
urgency to dispense with the requisite warrant, as the accused is a
notorious addict, that he knows the accused, that he knows where they
are buying shabu, that he even knew the route where they are passing;
that they failed to file for a search warrant, that it was also admitted
during the pre-trial conference that he already knew the identity of the
accused prior to the search and as well as that they have not applied for
a search warrant despite the fact the he has a sufficient time to apply for
a warrant.

It is very significant to note that the following were the answers of SPO2
Paulino on the questions propounded to him, to wit:

Atty. Velasquez

Q: Is it not a fact Mr. witness that you are the Intelligence Operative Officer of
Baguio City Police Station prior to the arrest of the accused?
A: Yes, sir

Q: And as an Intelligence Operative Officer of Baguio City Police Station, you

maintained informants otherwise known as police assets, is it not?
A: Yes, sir

Q: And you will not deny before this Honorable Court that this informants gives you
positive result about drug users?
A: Yes, sir

Q: So will not deny before this Honorable Court that you also know some not only a
few who are drug users in the vicinity of Baguio City, particularly in the place
of the accused, am I correct?
A: Yes, sir

Q: And Mr. witness, one of the notorious drug addicts in the vicinity of Baguio City
n particularly in the place of the accused, the accused is a notorious drug addict.

Pros. Ballesteros, III

We object, your Honor, not unless they admit that, then we will admit it.

Court
Witness may answer.

Witness
Yes, your Honor.

Atty. Velasquez
Q: And Mr. witness, you even know that they buy shabu in Urdaneta?
A: Yes, your Honor

Q: and you even know the route where they passed, am I correct?
A: Yes sir

Q: And despite of that Mr. Witness you failed to apply for a search warrant, am I
correct?
A: yes, sir

Q: Despite your knowledge, am I correct?

A: Yes, sir

Atty. Velasquez

Your Honor, May I place on record that the in the Pre-Trial conference, it was already
admitted that the identity of the accused has already been admitted (however for the
record, it was stipulated in the pre-trial that, THAT THE IDENTITY OF THE ACCUSED
HAS BEEN KNOWN PRIOR TO THE TIP) prior to the search, and as well as that, that they
have not applied for a search warrant despite the fact that the police officer Paulino has
sufficient time to apply for a search warrant.
No more question, your Honor.

Thus, under the case of PEOPLE OF THE PHILIPPINES vs. NOEL

TUDTUD y PAYPA and DINDO BOLONG y NARET [G.R. No. 144037.
September 26, 2003.] It was decided by the Supreme Court that they
have sufficient time to apply for a warrant, to wit;
Neither were the arresting officers impelled by any
urgency that would allow them to do away with the
requisite warrant, PO1 Desierto's assertions of lack of
time notwithstanding. Records show that the police
had ample opportunity to apply for a warrant, having
received Solier's information at around 9:00 in the
morning; Tudtud, however, was expected to arrive at
around 6:00 in the evening of the same day.

In People v. Encinada, supra, the Court ruled that

there was sufficient time to procure a warrant where
the police officers received at 4:00 in the afternoon an
intelligence report that the accused, who was
supposedly carrying marijuana, would arrive the next
morning at 7:00 a.m.:
Even if the information was received by Bolonia about
4:00 p.m. of May 20, 1992 at his house, there was
sufficient time to secure a warrant of arrest, as the
 M/V Sweet Pearl was not expected to dock until 7:00
a.m. the following day. Administrative Circular No. 13
allows application for search warrants even after
office hours.

Under the case for consideration it is very evident that the arresting
officer did not apply for a search warrant despite knowledge of the same
and even granting that they only came to know of such fact still they
have enough time to apply for a search warrant.

Quoting the answers of SPO2 Paulino, it was proved that, the identity of
the accused was known, the route where they will pass and where they
will be buying was also known, the vehicle was also known by the
arresting officer for the reason that the knew the vehicle to be flogged
down. And under the case of PEOPLE OF THE PHILIPPINES, vs. IDEL
AMINNUDIN y AHNI, (No.G.R. L-74869. July 6, 1988.]

NO URGENCY COULD BE INVOKED IN PRESENT

CASE TO DISPENSE WITH OBTENTION OF ARREST
AND SEARCH WARRANT. — The present case
presented no such urgency. From the conflicting
declarations of the PC witnesses, it is clear that they
had at least two days within which they could have
obtained a warrant to arrest and search Aminnudin
who was coming to Iloilo on the M/V Wilcon 9. His
name was known. The vehicle was identified. The
date of its arrival was certain. And from the
information they had received, they could have
persuaded a judge that there was probable cause,
indeed, to justify the issuance of a warrant. Yet they
did nothing. No effort was made to comply with the
law. The Bill of Rights was ignored altogether
because the PC lieutenant who was the head of the
arresting team, had determined on his own authority
that a "search warrant was not necessary."

CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS

AGAINST UNREASONABLE SEARCHES AND
SEIZURES; WARRANTLESS ARREST AND SEIZURE
BASED ON AN INFORMER'S TIP, AT A TIME WHEN
ACCUSED WAS NOT COMMITTING A CRIME,
ILLEGAL; EVIDENCE OBTAINED, INADMISSIBLE. —
Where it is not disputed that the PC officers had no
warrant when they arrested Aminnudin while he was
descending the gangplank of the M/V Wilcon 9 and
seized the bag he was carrying, and that their only
justification was the tip they had earlier received from
a reliable and regular informer who reported to them
that Aminnudin was arriving in Iloilo by boat with
marijuana, the search was not an incident of a lawful
arrest because there was no warrant of arrest and
warrantless arrest did not come under the exceptions
allowed by the Rules of Court. Hence, the
warrantless search was also illegal and the evidence
obtained was inadmissible.
.
Without the evidence of the shabu allegedly seized from the
accused, the case of the prosecution must fall. That evidence
cannot be admitted, and should never be considered by the
Honorable court for the simple fact is that the shabu was seized
illegally. It is the fruit of the poisonous tree, to use Justice Holmes'
felicitous phrase. The search was not an incident of a lawful arrest
because there was no warrant of arrest and the warrantless arrest
did not come under the exceptions allowed by the Rules of Court.
Hence, the warrantless search was also illegal and the evidence
obtained thereby was inadmissible.

The Constitution covers with the mantle of its protection the innocent
and the guilty alike against any manner of high-handedness from the
authorities, however praiseworthy their intentions. 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 for the loss
of liberty. As Justice Holmes, again, said, "I think it a less evil that some
criminal should escape than that the government should play an ignoble
part." It is simply not allowed in the free society to violate a law to enforce
another, especially if the law violated is the Constitution itself.(

WHEREFORE, premises considered, it is respectfully prayed that

the above-entitled case be dismissed for insufficiency of evidence as the
evidence secured by the arresting officer is inadmissible in evidence.

Other reliefs just and equitable are likewise prayed for.

Dagupan City, 8 March 2019.

KULASA LAW OFFICES

Counsel for the Accused

BY:

CC: Pros. Ferdinand

Provincial Prosecutor’s Office - by personal service
Justice Hall
Baguio City