Republic of the Philippines

OFFICE OF THE OMBUDSMAN

Office of the Deputy Ombudsman for the Military
and Other Law Enforcement Offices
Ombudsman Building, Agham Road, Diliman, 1101 Quezon City

MARVIN G. DANGCALAN, OMB-P-C-16-0287

Complainant/s For: Violation of Section 3 (cc)
R.A. 9165; Searching Domicile
Without Witness (Article 130, RPC)
Incriminating Innocent Person
(Article 363, Revised Penal Code)

-versus- OMB P- 16-0348

For: Grave Misconduct

SPO4 JOSE RENAULT TAN, ET. AL.,

Respondent/s

x---------------------------------------------x

POSITION PAPER

RESPONDENTS, in compliance with the Order from the

Honorable Office of the Deputy Ombudsman for the Military,

respectfully avers:

1. They were ordered to submit their verified position

paper within ten (10) days from receipt of the aforesaid

order. The respondents received the order on

December 20, 2016. The ten-day period will expire on

the 30th of December which is a holiday, hence, can be

filed in the next working day, January 3, 2017,

therefore, timely.

STATEMENT OF FACTS

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 1. Respondents are members of the Philippine National
Police assigned in Dapitan City Police Station and
members of the team who effected and implemented
the search warrant issued against the complainant
on March 30, 2016. The Search Warrant No. 2-2016
is for Violation of RA 10591 (Comprehensive Firearms
and Ammunition Regulation Act) and Search Warrant
No. 3-2016 is for violation of RA 9165 (Dangerous
Drugs Act of 2002).

2. SW No. 2-S-2016 describes the place to be searched

as the premises of his (Marvin Dangcalan) house
including his room and SW No. 3-S-2016 specifically
describes the place to be searched as game fowl
farm of Marvin Dangcalan alias Ekong located in
the inner part of Potungan, Dapitan City.

3. After the search made, the herein respondents

successfully recovered six (6) pieces rectangular
plastic transparent sachet containing white
crystalline granules believed to be shabu together
with seven (7) rolled aluminum foil which was placed
together with the medicines of the game fowl farm,
also recovered were several crumpled aluminum foils,
three (3) rolled aluminum foil used as tooter, one (1)
stainless scissors, fourteen (14) pieces disposable
lighter in different colors, and two (2) units
improvised pipe gun as all enumerated and
described in the Inventory of the Seized Items.

4. Proper charges then were filed against the

complainant Marvin Ekong Dangcalan together with
Jilbert O. Patagoc and Robert A. Into for violation of
R.A. 9165 (Comprehensive Dangerous Drugs Act of
2002) Art. II, Sec. 11 and 12 and violation of R.A.
10591 (Comprehensive Firearms and Ammunitions
Act).

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 5. On the other hand, Marvin Dangcalan, the
complainant and one of the accused in the
aforementioned cases, filed the instant cases before
this Honorable Office.

LEGAL ARGUMENTS
Complainants assertion that there
there was planting of evidence
finds no support in evidence.

6. The defense of planting of evidence like denial or

frame up is a standard defense ploy in most
prosecutions for violation of the Dangerous Drugs
Law. As such, it has been viewed by the court with
disfavor for it can just as easily be concocted ( People v.
Chua Uy, 384 Phil. 70, 86 (2000). Without proof of any
intent on the part of the police officers to falsely
impute complainant in the commission of a
crime, the presumption of regularity in the
performance of official duty prevails.

7. There was no planting of evidence as the search was

conducted regularly and in the full view of all the
witnesses and the occupants of the farm house/nipa
hut. Bare denial or claim of planting of evidence
without positive proof is highly unacceptable. For the
charge of Planting of Evidence to prosper, the
complainant must be able to establish the willful
act committed by the herein respondents of
maliciously and surreptitiously inserting,
placing, adding or attaching directly or
indirectly, through any overt or covert act,
whatever quantity of any dangerous drug and/or
controlled precursor and essential chemical in
the person, house, effects or in the immediate
vicinity of an innocent individual for the purpose

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 of implicating, incriminating or imputing the
commission of any violation of this Act.

8. There is no proof other than the self-serving claim of

the complainant that the police officers employ force
in bringing the occupants Patagoc and Into outside
the nipa hut as in the Affidavit of Arrest, it is
narrated as follows:

Our Team arrived in the area described at more

or less 4:10 oclock in the morning and
immediately proceeded to the above described
game fowl farm wherein the two (2) persons
sleeping inside the nipa hut wake-up and
went out the nipa hut, then and there, Our
Team Leader then introduced ourselves as
members of the Dapitan City Police Station.xxxxx

xxxxx

I, (PO1 Elumbaring), then asked them of the

owner of the game fowl farm and his location

9. There is no evidence that the police officers employ

force to bring them outside. The occupants
voluntarily went out at the time the respondents
arrive. They were not made to just sit outside
contrary to their claims. The truth is that the
occupants of the nipa hut, as a farm house were
present before, during and after the search was
conducted. It is but pressing to reiterate, paragraph
5 of the Supplemental Affidavit executed by the Hon.
Sael J. Dorotayo, Barangay Councilor of Potungan,
Dapitan City and one of the witnesses of the search
states:

The truth is that the police had not

exceeded their functions, duties and
responsibilities in the service of the said

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 warrant. My co-councilor Elmer Dagpin
and I were there from the start until the
culmination of the search as so were
Jilbert Patagoc and Robert Into and we all
witnessed what the police officers did. And
from what we saw and witnessed there was no
transgression of rights that happened that time.

10. The occupants were not excluded in the search as after

they

11. This statement of the witness shall be accorded

greater weight than the worn-out, and impotent
excuses of malefactors prosecuted for drug offenses.
Clearly, the search made was with the direct view of
the witnesses and the occupants of the house, Jilbert
Patagoc and Robert Into, it is fully established that
the herein respondents have acted regularly in the
performance of their duties in effecting the search.
Noteworthy to reiterate also, two witnesses residing
in the locality, two barangay councilors namely;
Sael Dorotayo and Elmer Dagpin officials of
Barangay Potungan, Dapitan City were present
and the occupants of the game fowl farm (nipa
hut) were present before, during and after the
search conducted.

12. As additional evidence, the herein respondents

respectfully submits the following additional pictures
as Annex A, B and C showing that aside from
the Barangay Kagawads as witnesses of the search,
the common-law wife of ________ who is also an
occupant of the said nipa hut as a caretaker of the
farm house was present all throughout the search;

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 13. The game fowl farm necessarily includes the nipa
hut as farm hut and the primary part of the farm
as used by the complainant and in maintaining the
farm. Hence, the areas subjected to search is
compliant with the place to be searched as described
as game fowl farm of Marvin Dangcalan alias
Ekong located in the inner part of Potungan,
Dapitan City particularly before Potungan
National High School going left side to the inner
part of Potungan. Clearly, the nipa hut also known
as the farm hut inside the game fowl farm is described
in particularity as a primary part of the farm and
hence, all evidence recovered are admissible being
seized from a valid search.

14. In the Supplemental Affidavit executed by Hon. Sael

Dorotayo, as attached in the counter affidavit,
witness clarified some portion of his earlier affidavit
to conform to the truth and in order to rectify the
records. He attested that he was surprised why it was
stated in their affidavit that the fighting cock farm
(game fowl farm) was owned by Jose Empeynado,
when in truth and in fact the same was owned by
Marvin Dangcalan alias Ikong and in fact, he knew
that Jose Empeynado has been dead for quite some
time already.

15. In the same supplemental affidavit, councilor

Dorotayo clarified that said affidavit, including
portion which states that the fighting cocks are
owned by Jose Empeynado, only came to his
knowledge at the time he executed his supplemental
affidavit because he was not given a copy of the
said affidavit by the lawyer of Ikong who
prepared the same, xxxx. In fact, Atty. Abad who
explained to them in part but not the whole affidavit.
Verily, their previous affidavit was prepared to
conform to the complainants fabricated story.
Emanating from this, ---------

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 the game fowl farm including the farm hut is in no
way owned and possessed by the land owner. The law
on accession is not applicable as

16. While it is not necessary that the property to be

searched or seized should be owned by the person
against whom the search warrant is issued, there
must be sufficient showing that the property is under
appellants control or possession (People v. Del
Castillo, G.R. No. 153254, September 30, 2004, 439
SCRA 601, 613-614, citing People v. Dichoso, G.R.
Nos. 101216-18, June 4, 1993, 223 SCRA 174, 191,
citing Burgos v. Chief of Staf, 133 SCRA 800 (1984).
Constructive possession exists when the drug is
under the dominion and control of the accused or
when he has the right to exercise dominion and
control over the place where it is found (People v.
Tira, supra note 27 as quoted in the case of Ruben
Del Castillo@ Boy Castillo vs. People of the
Philippines, G.R. No. 185128, January 30, 2012.

17. Chemistry Report No. CDT 58-2016; CDT -59-

2016, CDT-60-2016 as Annex D for suspects
Jilbert O. Patagoc, Marvin G. Dangcalan, and Robert
A. Into utilizing their 60 ml urine as samples, which
are found to be POSITIVE to the tests for
Methamphetamine, a dangerous drug, is also
attached herein even as not material to the charges
but to refute the assertion of the complainant that
the herein respondents attempted to implicate the
complainant for using illegal drugs.

WHEREFORE, based on the foregoing, it is most

respectfully prayed to the Honorable Office of the Deputy

Ombudsman for the Military and Other Law Enforcement

Offices that the above-entitled cases be dismissed for lack of

merit.

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 December 30, 2016. Dapitan City for Quezon City,

Philippines.

SPO4 JOSE RENAULT A. TAN

Respondent

PO3 JEREMIAS G. CAGBABANUA

Respondent

PO1 ARVIN G. PALER

Respondent

PO1 ADONIS ELUMBARING

Respondent

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