Memorandum for the Accussed

7/30/2019 Memorandum for the Accussed

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M E M O R A N D U M

for the Accused

Submitted by:

Roland S. AlivioIV-Teehankee

Submitted to:

Atty. Jane G. Baguio-VerdidaPublic Attorney II



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Republic of the PhilippinesREGIONAL TRIAL COURT OF LANAO DEL NORTE

12th Judicial RegionBRANCH 01

Iligan City

PEOPLE OF THE PHILIPPINES,Plaintiff,

CRIM. CASE NO. 13755

-versus- For : Violation of Section 11

Art. II of RA 9165

JUAN DELA CRUZ

Accused,:x-------------------------------------------------x

MEMORANDUM FOR THE ACCUSED

The accused, JUAN DELA CRUZ, though the undersigned counsel, unto this

Honorable Court most respectfully submit and present this Memorandum in the

above-titled case and aver that:

FACTS OF THE CASE

The Information read as follows:

“That on or about May 1. 2008, in the City of Iligan,

Philippines, and within the jurisdiction of this Honorable Court, thesaid accused, without authority of law, did then and there willfully,

unlawfully and feloniously have in his possession, custody and

control nine (9) plastic sachet of Methamphetamine Hydrochloride

weighing more or less 10.25 grams locally known as ‘Shabu’.

CONTRARY to and in VIOLATION of Section 11 Article II of

Republic Act 9165.”

________________________________________

1TSN, SP02 Diosdado Cabahug, October 29, 2008, p. 422TSN, SP02 Diosdado Cabahug, October 29, 2008, p. 183TSN, SP02 Diosdado Cabahug, October 29, 2008, p. 23-24

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The Joint Affidavit of SP02 Diosdado L. Cabahug, SP02 Edgardo

A. Englatiera and NUP Carlito M. Ong states:

“That when we reached the place, the raiding team entered

inside the house of Juan dela Cruz at the second floor of the house

were the room occupied by the aforementioned suspects. However

Pedro dela Cruz had noticed the presence of the raiding team and

immediately he was able to sneak out at the back door of the house

and run away to elude arrest leaving behind his companion

identified as Juan dela Cruz, the owner of the house, who was at

that time doing repacking of Methamphetamine Hydrochloride or

‘Shabu’ and we were able to recover nine (9) plastic sachet of

suspected Methamphetamine Hydrochloride or ‘Shabu’ weighing

more or less 10.25grams . . . .”

ISSUES

I. WHETHER OR NOT THE SEARCH AND SEIZURE CONDUCTED BY THE

PDEA IS LEGAL;

II. WHETHER OR NOT THE SEIZED 9 NINE SACHETS OF SHABU AND

OTHER PARAPHERNALIA ARE ADMISSIBLE IN EVIDENCE AGAINST THE

ACCUSED.

DISCUSSION AND ARGUMENTS

I. The PDEA agents had committed an illegal search and seizure.

The right against unreasonable searches and seizures is secured by Section 2,

Article III of the Constitution. However, Law and jurisprudence have laid down the

instances when a warrantless search is valid. These are:

1. Warrantless search incidental to a lawful arrest recognized under Section

12 [now Section 13], Rule 126 of the Rules of Court and by prevailing jurisprudence;

2. Seizure of evidence in "plain view," ;

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3. Search of a moving vehicle. Highly regulated by the government, thevehicle's inherent mobility reduces expectation of privacy especially whenits transit in public thoroughfares furnishes a highly reasonable suspicionamounting to probable cause that the occupant committed a criminalactivity;

4. Consented warrantless search;

5. Customs search;

6. Stop and Frisk; and

7. Exigent and Emergency Circumstances.

The PDEA agents had a Warrant of Arrest when they conducted their

operation. The said warrant was for a certain Felipe dela Cruz for violation of

Section 5 of RA 9615 and not the accused. The first instance of a valid warrantless

search cannot be applied here because the target of the warrant is not the same

person tried in this case. It is a warrant of arrest for another person as admitted by

one of the prosecution’s witness, SP02 Diosdado Cabahug. 1

The search was illegal from the start because when they were already inside

the house of the subject of the warrant, they found out that their target was not

already there and yet they continue to search the house. 2 They should have

pursued the target of their mission first instead of continuing the illegal and

unreasonable search.

Also, the PDEA committed another blunder because they had already

conducted the illegal search and upon finding drug paraphernalia on the floor of the

house that’s only the time that they frisked one the suspects they caught and found

the nine (9) sachets of ‘shabu’ in his pocket.

3

What they should have done is uponarresting him, they should have frisked him first for illegal weapons, drugs, etc.

before conducting the search.

.

II. The evidence against the accused is inadmissible against him.

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. The search and seizure conducted by the PDEA in this case is without ________________________________________


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a valid warrant and the admissibility of the confiscated drugs can be question on the

ground that it was the fruit of the poisonous tree,

According to Chief Justice Narvasa in the case of People vs. Alicando,

December 12, 1995, “We have not only constitutionalized the Miranda warnings in

our jurisdiction. We have also adopted the libertarian exclusionary rule known as

the "fruit of the poisonous tree," a phrase minted by Mr. Justice Felix Frankfurter in

the celebrated case of

Nardone v. United States. According to this rule, once the

primary source (the "tree") is shown to have been unlawfully obtained,

any secondary or derivative evidence (the " fruit " ) derived from it is also

inadmissible. Stated otherwise, illegally seized evidence is obtained as a direct

result of the illegal act, whereas the "fruit of the poisonous tree"

is the indirect

result

of the same illegal act. The "fruit of the poisonous tree" is at least once

removed from the illegally seized evidence, but it is equally inadmissible. The rule is

based on the principle that evidence illegally obtained by the State should not be

used to gain other evidence because the originally illegally obtained evidence taints

all evidence subsequently obtained.”

As a consequence of the illegal search, the things seized on the occasionthereof are inadmissible in evidence under the exclusionary rule. They are regarded

as having been obtained from a polluted source, the “fruit of a poisonous tree.”

However, the prohibited drugs seized cannot be returned to their owners

notwithstanding the illegality of their seizure. Thus, the shabu seized by the PDEA,

which cannot legally be possessed by the accused under the law, can and must be

retained by the government to be disposed of in accordance with law.

PRAYER

WHEREFORE, in view of all the foregoing, it is respectfully prayed of this

Honorable Court that the accused be ACQUITED of the case against him.

Respectfully submitted.

Iligan City, August 24, 2012.

ROLAND S. ALIVIO

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Counsel for the AccusedIligan City

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Documents

Memorandum for the Accussed