REPUBLIC OF THE PHILIPPINES

FOURTH JUDICIAL REGION

REGIONAL TRIAL COURT
BRANCH 84-BATANGAS CITY

THE PEOPLE
OF THE PHILIPPINES, CRIM. CASE NO.
15942
Plaintiff,

-versus - -f o r-

JESSIE PAGLICAUAN y Rosales , VIOL. OF

RA 9165
Accused.
x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-

DEMURRER TO
EVIDENCE

COMES NOW, the undersigned counsel for

accused JESSIE PAGLICAUAN, after leave has
been granted by the Honorable Court, most
respectfully moves that this case be dismissed on
the ground that the evidence adduced by the
Prosecution is not sufficient to establish the guilt of
the accused beyond reasonable doubt in the instant
case.

PROSECUTION’S EVIDENCE

The Prosecution presented several witnesses,

one of whom was PO2 Melvin Bathan. Bathan stated
that on February 8, 2009 at around 11:00 in the
evening, he was conducting a checkpoint at Caltex
San Pascual to implement the “No Plate, No Travel
Policy.” He claimed that while they were conducting
this checkpoint, they flagged down the accused,
Jessie Paglicauan because he and his companions
noticed that accused’s motorcycle has no plate.
Hence, they asked for accused’s license. When the
latter brought out his wallet from his pocket, a
rolled piece of paper fell from it which allegedly
contained marijuana. PO2 Bathan then stated that
he took it and marked the same with his initials
“MAB-02-08-09”. Accused Paglicauan was thereafter
brought to the precinct.

The prosecution also presented PO1 Romulo

Rosales as one of its witnesses. He stated that he
was also one of the police officers on duty at the
intersection of Caltex, San Pascual, Batangas. He
stated that the plate number of the motorcycle
driven by the accused was not visible and he had no
helmet on. However, they later found out that the
accused’s motorcycle had in fact a plate which was
under the vehicle’s hood.

The testimonies of PO1 Jeffrey Hernandez &

Forensic Chemist Jupri Delantar were made subjects
of stipulations.

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 DISCUSSIONS

A. Arrest Made Against Accused Was

Unlawful

Under Sec. 5, Rule 113 of the Revised Rules

of Criminal Procedure, a peace officer or a private
person may, without a warrant, arrest a person only
on the following instances, to wit:

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, that
the person 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.

The law, however, does not limit the legality of

warrantless arrests to this rule. The constitutional
proscription against warrantless searches and
seizures admits of certain exceptions. Search and/or
seizure may be made without a warrant and the
evidence obtained therefrom may be admissible in
the following instances: (1) search incident to a
lawful arrest; (2) search of a moving motor vehicle;
(3) search in violation of customs laws; (4) seizure of

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evidence in plain view; (5) when the accused himself
waives his right against unreasonable searches and
seizures; and (6) stop-and-frisk situations.

“Searches conducted in checkpoints

are valid for as long as they are warranted
by the exigencies of public order and are
conducted in a way least intrusive to
motorists. For as long as the vehicle is
neither searched nor its occupants
subjected to a body search, and the
inspection of the vehicle is limited to a
visual search, said routine checks cannot
be regarded as violative of an individual’s
right against unreasonable search (People
vs. Usana 323 SCRA 754).” In the case
of People vs. Vinecario (GR. No.
141137, January 20, 2004), the Supreme
Court held that “Vehicles may be stopped
and extensively searched when there is
probable cause which justifies a reasonable
belief of the men at the checkpoints that
either the motorist is a law offender or the
contents of the vehicle are or have been
instruments of some offense.”

However, the instant case does not fall under

this exception. The accused was not violating any
law at the time of the arrest. The check point in the
instant case was conducted to implement the “No
Plate, No Travel Policy.” Accused’s motorcycle, on
the other hand, had a plate number and thus, was
not violative of the purpose for which the checkpoint
was being conducted.

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 During the cross-examination, PO2 Bathan
admitted the blunder they committed.

ATTY. PEREZ:

Q: And the main purpose of your

checkpoint as you have testified
earlier, Mr. Witness, is to apprehend
persons riding on a motorcycle with no
plate number, is that correct?

A: Yes, Sir.

Q: You will agree with me in this

particular case and in your sworn
statement after you flagged down the
motorcycle wherein the accused was
riding you saw that the plate number
was attached to the motorcycle of
accused Jessie Paglicauan. You will
agree with me with that, Mr. Witness?

A: Yes, Sir.

Q: In fact, Mr. Witness, among the

exhibits and the pictures that your
other companion presented before this
Honorable Court it is visible that the
plate number is attached to the
motorcycle, that is correct?

A: Yes, Sir. (TSN/April 21,

2009/p.9)

From Bathan’s testimony, it can be gleaned that

accused did not violate the purpose for which the
checkpoint was being conducted; hence, there was
no reason for the former to ask for the license of the
accused. Bathan tried to conceal the patent illegality
of the accused’s arrest by testifying that accused

5
smelled of liquor, however, the accused was never
subjected to any medical examination to determine
whether his level of intoxication was beyond the
normal level.

Hence, considering that the arrest of the

accused is illegal, the search incidental thereto
suffers the same defect.

B. Accused Jessie Paglicauan was unlawfully

arrested and any object seized from him is
inadmissible in evidence being “fruits of the
poisonous tree.”

The accused was illegally arrested. Thus,

anything obtained from said unlawful arrest, if
there was really any, is inadmissible against him.

In the case of Bolasa, the High Court, declared

all evidences against accused inadmissible, viz:

“xxx The arrest being illegal ab initio,

the accompanying search was likewise
illegal. Every evidence thus obtained
during the illegal search cannot be used
against accused-appellants” (People vs.
Bolasa, 321 SCRA 459, 466)

In the instant case, assuming without admitting,

that marijuana was indeed confiscated from the
accused, considering that the arrest of the accused
is illegal, the search incidental thereto suffers the
same defect. It is already a truism and well settled

6
that any object seized from an illegal search is
inadmissible in evidence since it suffers
constitutional infirmity as “fruits of the poisonous
tree.”.

As provided in People vs. Sarap, G.R.

No. 132165. March 26, 2003 “There is
simply no sufficient evidence to convict her.
That the search disclosed marijuana
fruiting tops in appellant’s possession, and
thus confirmed the police officers’ initial
information and suspicion, did not cure its
patent illegality. An illegal search cannot
be undertaken and then an arrest effected
on the strength of the evidence yielded by
the search for being a fruit of a poisonous
tree.”

C. The Identity of the Specimen Allegedly

Taken From Accused is in Doubt

The specimen presented in the instant case

lacked proper identification in view of the
contradictory testimony of the arresting officers as
to the markings placed on the marijuana stick.
During the direct examination, Rosales was asked to
identify the specimen allegedly confiscated from the
accused. However, a discrepancy occurred as to the
markings made on the specimen. Rosales testified
that he would be able to recognize the evidence
confiscated from the accused because it was marked
with the initials JVH. However, the marking on the

7
paper and the plastic sachet in question had the
initials “MAB-02-08-09”.

This is what Rosales had to say during the

examination:

FISCAL RICABLANCA:

Q: How about that folded piece of paper

containing the dried marijuana if that
same piece of folded paper will be
shown to you again, will you be able to
identify the same?

A: Yes, Ma’am.
Q: How will you be able to do so?
A: It has initials, Ma’am.
Q: What are those initials, if you know?
A: “JVH”, Ma’am.
Q: What do these initials “JVH” stands for,
if you know?
A: Jeffrey Virtucio Hernandez, Ma’am.
Q: I am showing you this piece of folded
paper inside a transparent plastic
sachet, can you examine this specimen
and tell this Honorable Court what
relation this has with the dried
marijuana which you found in the
possession of Jessie Paglicauan on
February 8, 2009?

ATTY. PEREZ:

For the record, your Honor, before the

answer of the good witness we will be

8
 manifesting for the record that what was
being presented, your Honor, to this police
officer is a white paper with markings
“MAB 02-08-09” and not as testified earlier
by the witness which has markings “JVH”,
your Honor.

FISCAL RICABLANCA:

We confirm, your Honor, that the

markings on this paper and on the plastic
sachet, your Honor, are “MAB 02-08-09”
(TSN/April 21, 2009 pp. 8-9).

The failure of the Prosecution to identify the

subject specimen was fatal to their cause. For failure
to identify the subject specimen, if indeed one was
taken from the accused, casts serious doubt if the
evidence taken to the crime laboratory was the same
specimen allegedly taken from accused.

D. The Arresting Officers did not Comply with

the Requisites of R.A. 9165

In the instant case, there was an utter lack of

attempt on the part of the arresting officers to
comply with the mandatory requisites of R.A. 9165.
Section 21 of said law which provides that:

SEC. 21. Custody and Disposition of

Confiscated, Seized, and/or
Surrendered Dangerous Drugs, Plant
Sources of Dangerous Drugs and
Essential Chemicals,
Instruments/Paraphernalia and/or
Laboratory Equipment. – The PDEA shall

9
 take charge and have custody of all
dangerous drugs, plant sources of
dangerous drugs, controlled precursors and
essential chemicals, as well as
instruments/paraphernalia and/or
laboratory equipment so confiscated, seized
and/or surrendered, for proper disposition
in the following manner:

(1) The apprehending team having

initial custody and control of the drugs
SHALL, immediately after seizure and
confiscation, PHYSICALLY INVENTORY
and PHOTOGRAPH THE SAME IN THE
PRESENCE OF THE ACCUSED or the
person from whom such items were
confiscated and/or seized, or his/her
representative or counsel, a
REPRESENTATIVE FROM THE MEDIA and
the DEPARTMENT OF JUSTICE (DOJ), and
any ELECTED PUBLIC OFFICIAL who shall
be required to SIGN THE COPIES OF THE
INVENTORY and be given a copy thereof
(italics and capitalization ours)

Firstly, the alleged confiscated evidence was not

marked at the place where the accused was
arrested. The Supreme Court held in the case of
People vs. Coreche G.R. No. 182528, August 14,
2009 that “Crucial in proving chain of custody is the
marking of the seized drugs or other related items
immediately after they are seized from the accused.
Marking after seizure is the starting point in the
custodial link, thus it is vital that the seized
contraband are immediately marked because
succeeding handlers of the specimens will use the

10
markings as reference. The marking of the evidence
serves to separate the marked evidence from the
corpus of all other similar or related evidence from
the time they are seized from the accused until they
are disposed of at the end of criminal proceedings,
obviating switching, “planting,” or contamination
of evidence.”

Consequently, failure to mark the drug

immediately after it was seized from the accused
casts doubt on the prosecution evidence, warranting
acquittal on reasonable doubt.

Secondly, the evidence allegedly taken from the

accused was not inventoried in the presence of the
representatives from the Media and from the
Department of Justice.

In criminal cases, the prosecution has the onus

probandi of establishing the guilt of the accused – ei
incumbit probation non qui negat – he who asserts,
not he who denies, must prove. (People vs. Asis
391 SCRA 108). Thus, when the guilt of the
accused has not been proven with moral certainty
due to lack and or insufficiency of the evidence for
the prosecution, the constitutional presumption of
innocence of the accused must be upheld and his
exoneration from the crime charged must be favored
as a matter of right.

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 PRAYER

WHEREFORE, premises considered, herein

accused most respectfully prays to this Honorable
Court that the above-entitled case be dismissed and
that herein accused be acquitted of the crime
charged on the ground that the prosecution failed to
establish the guilt of the accused beyond reasonable
doubt in the instant case.

Such other reliefs, just and equitable under the

premises are likewise prayed for.

Batangas City, October 7, 2009.

PUBLIC ATTORNEY’S
OFFICE
DEPARTMENT OF JUSTICE
BATANGAS DISTRICT OFFICE
HALL OF JUSTICE BUILDING
PALLOCAN, BATANGAS CITY
Counsel for the Accused

By:

JOSELITO A. PEREZ
Public Attorney 3
Roll No. 40072
MCLE Compliance No. II-
0010854

12
The Branch Clerk of Court
Regional Trial Court
Branch 84- Batangas City

G R E E T I N G S:

Please submit the foregoing Demurrer to

Evidence to the Honorable Court immediately upon
receipt hereof.

JOSELITO A. PEREZ

Copy furnished:

The Provincial Prosecutor

Batangas City

JAP/dennis…

REPUBLIC OF THE PHILIPPINES

FOURTH JUDICIAL REGION
REGIONAL TRIAL COURT
BRANCH 84-BATANGAS CITY

THE PEOPLE
OF THE PHILIPPINES, CRIM. CASE NO.
15942

13
 Plaintiff,

-versus - -f o r-

JESSIE PAGLICAUAN y Rosales , VIOL. OF

RA 9165
Accused.
x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-

MOTION FOR LEAVE OF COURT TO FILE

DEMURRER TO EVIDENCE

COMES NOW, accused JESSIE PAGLICAUAN,

thru the undersigned counsel de oficio, and unto this
Honorable Court, most respectfully aver:

That on September 24, 2009, the Public

Attorney’s Office received a copy of the Order issued
by this Honorable Court admitting all Exhibits with
their submarkings which were formally offered by
the Prosecution, and hence, the latter is now
considered to have rested its case;

That after a careful and thorough evaluation of

the evidence presented by the Prosecution, the
undersigned counsel honestly believes that the
evidence is not sufficient to establish the guilt of the
accused beyond reasonable doubt;

The Prosecution failed to establish that the

arrest of the accused was legal and therefore, the
charge that arose from the said arrest cannot be the
proper basis for the charge against the accused. In
the instant case, a checkpoint was conducted by the
police officers to implement the “No Plate, No Travel
Policy”. The motorcycle of the accused never
violated this policy since it had a plate number,
hence, there was no reason for it to be flagged down
or to cause the police officer to ask for the license of
the accused.

14
 There was no sufficient basis for the arrest of
the accused, it therefore, follows that evidence, if
any was obtained shall also be considered illegal and
cannot be admitted. In the case at bar, assuming
without admitting that marijuana was obtained from
the accused, the same cannot be considered as part
of the evidence for being a fruit of the poisoned tree.

The Supreme Court had already made a

pronouncement in circumstances which were
similarly situated like that of the instant case, to wit:

If a person is searched without a

warrant or under circumstances other than
those justifying an arrest without a warrant
in accordance with law merely on suspicion
that he is engaged in some felonious
enterprise, it is not only the arrest, which is
illegal, but also the search on the occasion
thereof as being the fruit of the poisonous
tree.” (People vs. Malmstedt, 198 SCRA
401)

The evidence allegedly obtained from the

accused lacked proper identification in view of the
contradictory testimony of the arresting officers as
to marking placed on the marijuana stick. PO2
Bathan testified that the marijuana stick was
marked with the initials “MAB-02-08-09”. PO1
Rosales, on the other hand, claimed that the same
was marked with the initials”JVH.” In view of the
arresting officers’ failure to identify the specimen
subject of the litigation, a serious doubt was created
as to whether the same was the same item
confiscated from the accused and brought to the
laboratory for investigation.

Also worthy to consider is the fact that the

arresting officers failed to comply with the
mandatory requisites of Sec. 21 of Republic Act No.

15
9165 and their failure to justify their non-compliance
of the aforementioned law is fatal to the
prosecution's case.

In People vs. Ruiz Garcia (G.R. 173480,

February 25, 2009), the Supreme Court held that
“specific procedures relating to the seizure and
custody of drugs have been laid down in the law
(R.A. No. 9165) for the police to strictly follow. The
prosecution must adduce evidence that these
procedures have been followed in proving the
elements of the defined offense.”
That for failure of the prosecution to prove the
guilt of accused beyond reasonable doubt absolves
the latter for the crime charged.

PRAYER

WHEREFORE, premises considered, it is most

respectfully prayed of this Honorable Court that the
undersigned counsel be granted leave of court to file
demurrer to evidence within ten (10) days from
receipt of the Order granting this Motion, or within
a reasonable time the Honorable Court may deem
just and appropriate under the circumstances.

Batangas City, September 28, 2009.

PUBLIC ATTORNEY’S OFFICE

DEPARTMENT OF JUSTICE
BATANGAS DISTRICT OFFICE
HALL OF JUSTICE BUILDING
PALLOCAN, BATANGAS CITY
Counsel for the Accused

By:

JOSELITO A. PEREZ
Public Attorney 3
Roll No. 40072
MCLE Compliance No. II-0010854

NOTICE OF HEARING

16
The City Prosecutor
Batangas City

The Branch Clerk of Court

Regional Trial Court
Branch 84- Batangas City

G R E E T I N G S:

Please take notice that this Motion for Leave of

Court will be submitted for hearing on October 6,
2009 at 8:30 in the morning.

JOSELITO A. PEREZ
Copy furnished:

The City Prosecutor

Batangas City

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