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REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT
FOURTH JUDICIAL REGION
BRANCH IX
BALAYAN, BATANGAS

THE PEOPLE OF THE PHILIPPINES,

Plaintiff,

- versus - CRIMINAL CASE NO. 7827

ERNESTO GARCIA y HOLGADO,

Accused.
X - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

MOTION TO DISMISS
BY WAY OF DEMURRER TO EVIDENCE
WITH LEAVE OF COURT

COMES NOW, the accused, through the undersigned counsel and unto this
Honorable Court, most respectfully avers that:

1. On July 1, 2019, the undersigned Public Attorney received the order of

the Honorable Court granting her Motion for Leave to file the Demurrer
to Evidence. She was given ten days within which to file the Demurrer
to Evidence;

2. In compliance thereto, the accused thru the undersigned Public

Attorney hereby files this Demurrer to Evidence and respectfully and
humbly prays for the acquittal of the above named accused on the
ground that the prosecution’s evidence is insufficient to prove their guilt
beyond reasonable doubt.

PREFATORY STATEMENT

3. At present time, it cannot be denied that dangerous drugs are regarded

as one of the country’s serious social ills due to its pernicious effects on
our society. By reason thereof, it is essential for each and every member
of the society to give his unwavering support to our law enforcement
agents in terms of enthusiastically tracking down offenders in their
commendable effort and initiative to lessen, if cannot be totally
eradicated, the pervasive effects of dangerous drugs on our society. The
law enforcement agents, on the other hand, should not disregard the
constitutional rights of the individual. 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.

4. Moreover, it is a well-settled rule that in drug-related cases, it is essential

for the Prosecution to establish guilt of the accused beyond reasonable

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doubt by means of proving that the substance illegally possessed in the

first place is the same substance offered in court as exhibit. This chain of
custody requirement ensures that unnecessary doubts are removed
concerning the identity of the evidence. Also, if the Prosecution fails
prove the corpus delicti and there are numerous procedural lapses on
the part of the police officers in the performance of their official duties
that adversely affect the constitutional rights of the accused, it is but just
to proclaim the innocence of the accused as a matter of right and order
his acquittal. Hence, this instant motion.

GROUNDS

A. The Prosecution witnesses made untruthful and inconsistent

statements which greatly impaired their credibility as witnesses.

B. The body search conducted by PO1 Demetrio V. Abello to the

accused prior to the latter’s arrest and implementation of the
search warrant was unlawful and violation of the latter’s
constitutional rights as there is a jurisprudential doctrine that
there must first be a lawful arrest before a search can be made.

C. The procedures embodied in Section 21, Article II of Republic

Act No. 9165 and its Implementing Rules and Regulations were
not complied with by the apprehending team relative to the
seizure and custody of drugs in particular to wit:

c.1. The items that were allegedly seized by the police officers
from the accused were not sealed in a container or evidence bag
before they submitted the same to the forensic laboratory for
examination.

c.2. The allegedly seized illegal drugs and drug paraphernalia

were not weighed in during the physical inventory thereof in
contravention with the rules governing the same.

c.3. The seizing officers failed to photograph the seized items in

the presence of the accused and witnesses.

c.4. The accused and witneses were not given a copy of the
Certificate of Inventory.

D. The Prosecution failed to prove or establish the required chain

of custody over the alleged confiscated prohibited drugs which
created doubt as to the integrity and indentity of the drugs seized
and presented in court.

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STATEMENT OF THE FACTS

5. As provided in the affidavits of arrest of PO1 Mark Joseph Alilio

Landicho and PO1 Demetrio Velasco Abello Jr., they implemented the
Search Warrant against the accused for violation of Article II Section 11,
parangraph 1 of Republic Act No. 9165. In the course of their search in
the house of the accused, they claimed that illegal drugs and drug
paraphernalia were discovered therein. However, despite of the
allegation of the police officers that they discovered drug
paraphernalias to the house of the accused, the charge against the latter
for violation of Article II Section 12 of Republic Act No. 9165 was
dismissed by the Office of the Provincial Prosecutor for lack of probable
cause.

6. The accused Ernesto Garcia y Holgado was then charged for Violation
of Article II, Sections 11, paragraph 1
of Republic Act No. 9165.

ISSUE

A. Whether or not the prosecution has presented enough evidence to prove

the guilt of the accused beyond reasonable doubt.

DISCUSSION AND ARGUMENTS

I. THE PROSECUTION’S WITNESSES MADE UNTRUTHFUL AND

INCONSISTENT STATEMENTS WHICH GREATLY IMPAIRED
THEIR CREDIBILITY AS WITNESSES

7. It is a hornbook doctrine that evidence to be believed, must proceed not

only from the mouth of credible witness but the same must be credible
in itself.

8. As applied in the case at bench, it is clear and evident that the

Prosecution presented lying witness for the reason that the testimony of
PO1 Landicho and PO1 Abello lack sense or suffer from inherent
consistencies. Like for instance, PO1 Landicho testified during his cross
examination1 that he and PO1 Abello were simultaneously searching the
living room and bedroom, respectively. However, during PO1
Landicho’s re-direct examination2 and court clarification3 the said police
officer insisted that he and PO1 Abello searched the living room and
bedroom together.

9. Furthermore, PO1 Landicho also gave conflicting statements as to the

sequence of marking and conducting the inventory of the seized items.
To illustrate:

1
TSN dated March 28, 2017, pp. 16-17.
2
Ibid., pp. 29-31.
3
Ibid., pp. 45-46.

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PO1 Landicho’s Cross-Examination4:

Q: Mr. Witness, you first conducted your inventory before you marked those
illegal items, right??
A: Yes, Ma’am.

xxx xxx xxx

PO1 Landicho’s Re-Direct Examination5:

Q: And you said the inventory was conducted first before the items were
marked, is that correct also?
A: Yes, Sir.
Q: Do you understand the meaning of the term inventory?
A: Yes, Sir.
Q: What does that mean?
A: During inventory all confiscated items are being recorded, Sir.
Q: So meaning during the inventory PO3 Botavara was recording the items that
were recovered inside the house of the accused?
A: Yes Sir.
Q: And he was writing the description of those items on the receipt or Certificate
of Inventory?
A: Yes, Sir.

xxx xxx xxx

Q: So therefore you are saying that the marking was simultaneously made
with the inventory?
A: Yes, Sir.

xxx xxx xxx

Questions from the Honorable Court6:

Q: Second, when asked by the counsel for the accused, you said inventory first
then marking.

Q: So PO3 Botavara waited for you to finish marking all the seized items before
he started with the inventory?
A: Yes, your Honor.
Q; So what happens now to your answer to the Public Prosecutor that you would
mark each item and you would give it to Botavara he would record it in the
inventory and then you would mark the other one and give it to Botavara?
A: That’s what happened your Honor.
Q: Which one?
A: I have marked the seized items before PO3 Botavara started recording them
in the inventory, your Honor.

10. In addition, the testimonies of PO1 Landicho and PO1 Abello were
marked with material contradictions as to who brought the seized items
from the house of the accused to the hospital for the medical
examination of the accused.

Direct examination of PO1 Abello Jr.:7

4
Ibid. pp19-20.
5
Ibid, p.37.
6
Ibid, pp. 47-49.
7
October 24, 2017, p.17.

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Q: When you went to the court from the house of the accused, who were keeping
the items that were recovered from the house of the accused?
A: PO1 Landicho was keeping the items.
Q: Including the sachet of shabu that you recovered from the accused?
A: Yes, Sir. We put them in one bag, Sir.
Q: When did you give to PO1 Landicho the sachet of shabu that you recovered?
A: Before we left the house of the accused going to the Court, Sir.
Q: From the Court, where did you go next?
A: We went to the hospital for the medical examination of the accused, Sir.
Q: And again who was keeping the items?
A: PO1 Landicho Sir.

Cross-Examination of PO1 Landicho8:

Q: What time did you go to RTC Branch 10?

A: More or less 11:00 Ma’am.
Q: After you went to RTC Branch 10, What happened next?
A:We proceeded to Don Manuel Lopez Hospital for medical examination, Ma’am.
Q: And what did you do Don Manuel Lopez Hospital?
A: For medical examination.
Q: Same police officers?
A: Yes, Ma’am.
Q: Who was carrying the shabu?
A: I and PO1 Abello, Ma’am.

11. Based on the foregoing substance of the testimonies of PO1 Landicho

and PO1 Abello, it is of no doubt that the inconsistencies of the
abovementioned witnesses presented by the prosecution only prove
that they are not telling the truth and that their testimonies were all
fabricated. Thus, the element of reasonable doubt is injected and cannot
be lightly disregarded. Consequently, the credibility of PO1 Landicho
and PO1 Abello are seriously impaired, the veracity of their claim is
negated, and the probative value of their testimony is greatly
diminished -- if not rendered useless altogether. It is also noteworthy to
remember that the inconsistencies in the testimony of Prosecution’s
witnesses do not merely pertain to minor details but to the principal
occurrences during the implementation of the search, marking and
inventory of the alleged seized items.

II. THE BODY SEARCH CONDUCTED BY PO1 DEMETRIO V.

ABELLO TO THE ACCUSED PRIOR TO THE LATTER’S
ARREST AND IMPLEMENTATION OF THE SEARCH
WARRANT WAS UNLAWFUL AND VIOLATION OF THE
LATTER’S CONSTITUTIONAL RIGHTS AS THERE IS A
JURISPRUDENTIAL DOCTRINE THAT THERE MUST FIRST
BE A LAWFUL ARREST BEFORE A SEARCH CAN BE MADE.

12. It is a well settled rule that a search incidental to a lawful arrest requires
that there must first be a lawful arrest before a search is made. Otherwise
stated, a lawful arrest must precede the search; the process cannot be
reversed.

13. A judicious review of the factual milieu of the instant case reveals that
the accused was not yet under arrest when PO1 Abello conducted his
body search. It is evident from the Sworn Statement of PO1 Abello that

8
March 28, 2017, pp.26-27.

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he first conducted a boy search to the accused before the

implementation of the search warrant and prior to the discovery of the
seized items to the house of the accused. PO1 Abello admitted that the
accused was not under arrest when he conducted a body search. To
illustrate:

PO1 Demetrio Abello’s Cross Examination9:

Q: You stated in your sworn statement that you conducted a body search to the
accused before you conducted your search in the house of the accused, right?
A: Yes, Ma’am.
Q: Why is that so, Mr. Witness? Why did you first conduct a body search
considering that you are not yet discover any illegal item inside the house of the
accused?
A: To make sure that the accused was not armed with a deadly weapon to harm
us while we were conducting the search, Ma’am.
Q; Will you agree with me that when you conducted your body search, the accused
was not yet under your arrest?
A: Yes, Ma’am.

14. With the foregoing, it is evident that the body search conducted by PO1
Abello to the accused was unlawful. Hence, the illegal items allegedly
discovered from the body of the accused should not be admitted as
evidence against him.

III. THE PROCEDURES EMBODIED IN SECTION 21, ARTICLE II

OF REPUBLIC ACT NO. 9165 AND ITS IMPLEMENTING RULES
AND REGULATIONS WERE NOT COMPLIED WITH BY THE
APPREHENDING TEAM RELATIVE TO THE SEIZURE AND
CUSTODY OF DRUGS

15. The procedures embodied in Section 21, Article II of Republic Act No.
9165 and its Implementing Rules and Regulations require the
apprehending team, after seizure and confiscation, to immediately (1)
conduct a physically inventory; and (2) photograph the same in the
presence of the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the DOJ, and any elected public
official who shall be required to sign the copies of the inventory and be
given a copy thereof. This requirement is mandatory under the law to
exude regularity on the part of the arresting officers having initial
custody of the items seized and failure to comply the same is fatal.

16. In the given case, it is undeniable that the records are bereft of any
document showing the photos of the seized items in the presence of the
accused and of the witnesses.

17. The fact that no photos were attached in the records of the case only goes
to show that the police officers did not take photograph of the seized
items under the circumstances required by Republic Act No. 9165 and
its implementing rules. The Prosecution also failed to prove that the
witnesses and the accused were given copies of the Certificate of
Inventory or Receipt of Property Seized.

9
TSN dated May 23, 2018, p. 4.

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18. Also, the allegedly seized illegal were not weighed in during the
physical inventory thereof in contravention with the rules10 governing
the same. Review of the records shows that the weight of the
aforementioned substance was not identified or established in the
Receipt of Property Seized11. The records of this case is bereft of any
information which can supply the yet again another guesswork left to
this Honorable Court as to when, where, how, and who took the weight
of the allegedly seized drugs as appearing in the Criminal Information
before they were turned over to the Crime Laboratory for laboratory
test. The prosecution evidence failed to explain how the weight reflected
in the Information for Criminal Case No. 7827 charging the accused of
illegal possession of dangerous drug was arrived at. “This is material
considering that the imposable penalty for illegal possession
of shabu depends on the quantity or weight of the seized drug.”12 This
made the purported conduct of the inventory even more questionable.

19. With all the foregoing procedural lapses, the police officers failed to
provide justifiable and adequate grounds for their non-compliance.
Hence, the presumption of regularity in the performance of official duty
cannot be accorded and “the Court cannot presume what these grounds
are or that they even exist.”13 Also, in view of the unjustifiable non-
compliance to the foregoing rules, there can be a break in the chain
which tainted the integrity of the seized drugs presented in court and at
the same time, the very identity of the seized drugs can become highly
questionable.

10
Section 2-6 Handling, Custody and Disposition of Drug and Non-Drug Evidence, Revised PNP Manual on Anti-Illegal
Drugs Operations and Investigation, September 2011, pp. 11-14, viz:

(a) Drug Evidence

xxx xxx xxx

5) All the illegal drugs and/or CPECs shall be properly marked for identification, weighed when
possible or counted, sealed, packed and labelled. The exact weight of the illegal drugs seized or
recovered should be recorded in the Inventory and Chain of Custody Forms or Evidence Vouchers.

6) Within the same period, the Seizing/Inventory Officer shall prepare a list of inventory receipt of
confiscation/seizure to include but not limited to the following:

(a) Time, date and place of occurrence/seizure.

(b) Identity of person/s arrested.
(c) Identity of the Seizing Officer and all persons who witnessed the operations.
(d) Circumstances in which the seizure took place.
(e) Description of the vehicle, vessel, place or person searched from where/whom the
substance was found.
(f) Description of packaging, seals and other identifying marks.
(g) Description of quantity, volume and unit/measurement method employed.
(h) Description of the substance found.
(i) Description of any preliminary identification test (test kit) used and its results
(Emphasis supplied)
11 Receipt of Property Seized marked as Exhibit “F” of the Prosecution.
12 People v. Ismael, G.R. No. 208093, February 20 February 2017.
13 People v. Dela Cruz, G.R. No. 185717, June 8, 2011.

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IV. THE PROSECUTION FAILED TO PROVE OR ESTABLISH THE

REQUIRED CHAIN OF CUSTODY OVER THE ALLEGED
CONFISCATED PROHIBITED DRUGS WHICH CREATED
DOUBT AS TO THE INTEGRITY AND IDENTITY OF THE
DRUGS SEIZED AND PRESENTED IN COURT

18. In People vs. Ramil Doria Dahil and Rommel Castro y Carlos14, the
Supreme Court identified the links that the prosecution must establish in the
chain of custody to be as follows: first, the seizure and marking, if
practicable, of the illegal drug recovered from the accused by the
apprehending officer; second, the turnover of the illegal drug seized by the
apprehending officer to the investigating officer; third, the turnover by the
investigating officer of the illegal drug to the forensic chemist for laboratory
examination; and fourth, the turnover and submission of the marked illegal
drug seized by the forensic chemist to the court.

A. FIRST LINK: Marking of the Drugs Recovered from the Accused by

the Apprehending Officer

19. The Supreme Court in the case of People vs Ismael15 has reiterated that
the first stage in the chain of custody rule is the marking of the dangerous
drugs or related items. Marking, which is the affixing on the dangerous
drugs or related items by the apprehending officer or the poseur-buyer of
his initials or signature or other identifying signs, should be made in the
presence of the apprehended violator immediately upon arrest.

20. In addition, Section 1 paragraph A.1.2. of the Implementing Rules of

Regulation of Republic Act 10640 provides marking is the placing by the
apprehending officer or the poseur-buyer of his/her initial and signature
on the item/s seized.

21. In the given case, it is evident that the records of the case show that the
arresting officers did not immediately mark the seized items upon
discovery or confiscation. Hence, there was already a break in the first link
of the chain. To illustrate:

Cross-examination of PO1 Abello Jr.16:

Q: May I know what time did you terminate your search?

A: More or less 11:00 ma’am.
Q: So from 8:30 to 11:00 o’clock, you were conducting your search inside the house of the
accused?
A: Yes, Ma’am.
Q: What time did you mark the items?
A: More or less 11:00 after the search Ma’am.
Q: Do you know what time did you conduct your search inside the bedroom of the
accused?
A: Around 8:35 Ma’am.
Q: How about in the living room, what time did you conduct your search?

14G.R. No. 212196, January 12, 2015.

15 G.R. No. 208093, February 20, 2017.

16 TSN dated May 23, 2018, p.7.

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A: It’s just five-minute interval because after the search of the room, we searched the
bedroom, Ma’am.
Q: Will you agree with me that from 8:30 to 11:00 in the morning, the items that you
discovered in the body of the accused and inside the house of the accused were not yet
marked, right?
A: Yes, Ma’am.

22. Further, the marking of the seized items in the presence of the accused
is highly questionable. This is because the Prosecution did not present
concrete proof like photographs showing that the seized items were really
marked in the presence of the accused. Both PO1 Landicho and PO1 Abello
Jr. did not also place their signatures and initials to the seized items and
because of that there can be an existence of a grave possibility of switching,
planting, or contamination. Worse, there can be no certainty whether the
plastic sachets containing white crystalline substance allegedly confiscated
from accused were the same ones as those subsequently turned over to
succeeding handlers who used the markings as reference.

B. SECOND LINK: Turnover of the Seized Drugs by the

Apprehending Officer to the Investigating Officer

23.The second link in the chain of custody is the transfer of the seized drugs
by the apprehending officer to the investigating officer. Usually, the police
officer who seizes the suspected substance turns it over to a supervising
officer, who will then send it by courier to the police crime laboratory for
testing. This is a necessary step in the chain of custody because it will be the
investigating officer who shall conduct the proper investigation and
prepare the necessary documents for the developing criminal case.
Certainly, the investigating officer must have possession of the illegal drugs
to properly prepare the required documents.

24.In the given case, it is evident that PO1 Landicho and PO1 Abello Jr. did
not turn-over the seized items to the investigator PO3 Roderick Botavara.
The prosecution also failed to present the investigator PO3 Botavara to
bolster the claim of PO1 Landicho and PO1 Abello. Hence, the Prosecution
witnesses failed to establish the second link of the chain of custody.

25. Also, the Prosecution failed to successfully establish the unbroken chain
of custody over the seized drugs. First, while Prosecution witness PO1
Abello Jr., claimed that he turned over the seized items to PO1 Landicho,
he however failed to show proof to that effect. Second, while PO3 Johnny
Dechoso claimed during his cross examination testimony17 that PO1
Landicho gave the items to him so that he will be able to file a return of
search warrant before the issuing court, the said police officer however
failed to execute a chain of custody form. Hence, due to the foregoing, it is
clear that the Prosecution witnesses failed to indicate the movements of the
seized items from the time they are seized from the accused until the time
they are presented in court through the execution of the chain of custody
form. Likewise, none of the Prosecution witnesses described as to how the
seized items were received and what happened to them while in their
possession as well as the condition in which they were received and
delivered to the next link in the chain. They also failed to describe the

17 TSN dated March 12, 2019, pp. 10-11.

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precautions taken to ensure that there had been no change in the condition
of the item and no opportunity for someone not in the chain to have
possession of the same.

C. THIRD LINK: Turnover by the Investigating Officer of the Illegal

Drugs to the Forensic Chemist

26. As can be gleaned from the records of the case, it is evident that it was
the seizing officer and not the investigator who turned over the seized items
to the forensic chemist. Likewise, PO1 Landicho did not give a complete
detail on how he handled, preserved and transferred the seized items to the
crime laboratory for forensic examination. Hence, there is no assurance that
the integrity and evidentiary value of the seized items will not be
compromised.

D. Fourth Link: Turnover of the Marked Illegal Drug Seized by the

Forensic Chemist to the Court.

27.With respect to the fourth link of the chain of custody which involves the
submission of the seized drugs by the forensic chemist to the court when
presented as evidence in the criminal case, it is clear and evident that the
Prosecution failed to present testimonial or documentary evidence as to
how the drugs were kept while in the custody of the forensic chemist until
it was transferred to the court. While it is true that both Prosecution and
counsel for the accused resorted to a general stipulation of the forensic
chemist’s testimony, such stipulation is deemed to be limited to the result
of the examination she conducted and not on the source of the substance.

28. From the foregoing, it appears that no chain of custody was established
at all. What we have here are individual links with breaks in-between which
could not be seamlessly woven or tied together. The so-called links in the
chain of custody show that the seized shabu were not handled properly
starting from the actual seizure, to its turnover in the police station as well
as its transfer to the crime laboratory for examination. Indeed, we cannot
therefore conclude with moral certainty that the sachets of
shabu confiscated from the accused were the same as that presented for
laboratory examination and then presented in court.

WHEREFORE, premises considered, the accused respectfully submit that

the pieces of evidence presented by the prosecution are insufficient to establish
their guilt beyond reasonable doubt.

PRAYER

WHEREFORE, it is most respectfully prayed before the Honorable Court

that an Order be issued immediately dismissing this instant case for lack of
sufficient evidence on the part of the prosecution to prove the guilt of the accused
beyond reasonable doubt.

Other reliefs just and equitable are likewise prayed for.

Balayan, Batangas, July 11, 2019.

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PUBLIC ATTORNEY’S OFFICE

DOJ-Balayan District Office
Hall of Justice
Balayan, Batangas
Counsel for the Accused

By:

MERLO VINIA C. SILVA-CASTRO

Public Attorney II

NOTICE OF HEARING

The OIC/ Clerk of Court

Regional Trial Court
Balayan, Batangas
Branch IX

GREETINGS:

Please include the foregoing motion in the calendar of matters scheduled to

be heard and resolved by the Honorable Court on July 16, 2019 at 10:00 o’clock in
the morning without further oral argument.

MERLO VINIA C. SILVA-CASTRO

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