Republic of the Philippines

REGIONAL TRIAL COURT

7th Judicial Region
Branch 12
Cebu City

PEOPLE OF THE CRIM. CASE NO.

PHILIPPINES, R-CEB-1702834-CR &
R-CEB-17-02835-CR
Plaintiff,
FOR: VIOLATION OF
-versus- SECTIONS 12 & 11 OF ART II
OF RA 9165
DONNIE SAKAY ABELLA
a.k.a. “AUGUSTUS ABELLA”
a.k.a. “DODO”

Accused.
x----------------------------------/

DEMURRER TO EVIDENCE
(for accused Donnie Sakay Abella)

PREFATORY STATEMENT

“The sacred right against an unreasonable search or seizure and

unlawful arrest is not only ancient. It is also zealously safeguarded. The
Constitution guarantees the right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and seizures. 1 Any
evidence obtained in violation of said right shall be inadmissible for any
purpose in any proceeding. Indeed, while the power to search and seize may
at times be necessary to the public welfare, still it must be exercised and the
law implemented without contravening the constitutional rights of the
citizens, for the enforcement of no statute is of sufficient importance to
justify indifference to the basic principles of government.”2

The failure of law enforcement officers to comply with the chain of

custody requirements spelled out in Section 21 of Republic Act No. 9165
(otherwise known as the Comprehensive Dangerous Drugs Act of 2000), as
amended, coupled with a failure to show justifiable grounds for their non-
compliance engenders reasonable doubt on the guilt of persons from whom
illegal drugs and drug paraphernalia were supposedly seized. Acquittal
must then ensue.

1
Section 2, Article III of the 1987 Philippine Constitution
2
People v. Aruta, 351 Phil. 868 (1998)
1
 “The presumption of regularity in the performance of official
functions cannot by its lonesome overcome the constitutional presumption
of innocence. Evidence of guilt beyond reasonable doubt and nothing else
can eclipse the hypothesis of guiltlessness. And this burden is met not by
bestowing distrust on the innocence of the accused but by obliterating all
doubts as to his culpability.”3

“It is a well-entrenched rule in criminal law that the evidence for the
prosecution must stand or fall on its own weight and cannot be allowed to
draw strength from the weakness of the defense.”4

As will be hereunder shown, Accused respectfully submits that

the prosecution failed to adduce the required quantum of evidence to
prove his guilt for the offense charged beyond reasonable doubt.

Hence, accused respectfully moves for the dismissal of the

charges for insufficiency of evidence by filing the instant demurrer.

TIMELINESS OF FILING OF DEMURRER

After the prosecution rested its case, accused through counsel

then filed a Motion for Leave to File Demurrer to Evidence.
Consequently, an Order dated July 8, 2019 was issued by the
Honorable Court granting the accused ten days from receipt to file
the Demurrer to Evidence. Considering that the Order was received
by the undersigned last July 23, 2019 and that the tenth day to file the
Demurrer is August 2, 2019, hence, this Demurrer to Evidence is filed
on time.

THE FACTS

The accused is facing indictment for Violation of Sections 12 &

11, Art. II of RA 9165 (Dangerous Drugs Act), for allegedly
possessing one (1) transparent plastic packs of shabu having a net
weight of 129.7 grams.

EVIDENCES

The prosecution presented IO1 Charlie Magne Cordova the

searcher in relation to this case and Alfe U. Yhan, the chemist of this
case.

3
Junie Mallillin vs. People, G.R. No. 172953, April 30, 2008, 2nd Div.
4
People vs. Tan, G.R. No.129376. May 29, 2002. 1st Div.
2
 According to the prosecution’s witnesses, he alleged that on or
about 05:10 P.M. on April 10, 2017, IA1 Jason Cabatana formed and
conducted briefing on the team that will implement the Search
Warrant 0082-04-0317-12 that was applied and secured by him and
was issued by Hon. Judge Estela Alma A. Singco of Regional Trial
Court Branch 12 on April 4, 2017 in the house of Augustus Abella
a.k.a. Dodo. During the briefing, IO1 Romy Alcantra was assigned as
arresting officer; SO2 Mario T. Portugal, Jr. as a Seizing Officer and
Recorder and IO1 Charlie Magne Cordova as Searcher.

Thereafter, on or about 5:30 in the afternoon of April 10, 2017,

armed with Search Warrant No. 0082-04-0317-12 issued by Hon.
Judge Estela Alma A. Singco and Authority to Operate with Control
No. 20002-04201700065, the team led by IA1 Jason Cabatana left their
office and proceeded to Brgy. Sambag II, Cebu City.

When the team arrived at the vicinity of the house of the subject
of their search warrant, IO1 Cordova was the first to arrive at the
house of Augustus Abella a.k.a Dodo. IO1 Cordova knock on the
door and informed the lady named Apple Grace M. Gaw inside they
were PDEA agents and will implement a Search Warrant but instead
the lady allegedly shouted to warn Donnie S. Abella and the lady and
Donnie Abella allegedly run towards the roof of their house despite
the order they gave them. The agents are then forced to open the
door and rushed to the direction they fled and eventually was
cornered and arrested for disobedience and resistance to agents of
person in authority. Donnie S. Abella tried to resist and even
punched several PDEA Agent in his attempt to escape and it took 3
persons to restrain him.

Augustus Abella was arrested and the agents search the house
that is owned and occupied by the later. IO1 Alcantara arrested
Augustus Abella and Apple Grace M. Gaw under arrest for resistance
and disobedience to agents in persons of authority and
read/informed him the nature of his offense.

IO1 Charlie Magne Cordova pursuant to the Search Warrant

started to search for dangerous drugs (shabu) inside the house and
recovered several scattered pieces of drug and drug paraphernalia.
After IO1 Cordova recovered the alleged evidences he turned over it
all to SO2 Portugal for recording and markings of the evidence seized
in the presence of the subject and witnesses.

DISCUSSIONS AND ARGUMENTS

An accused is presumed
3
innocent until his guilt is
proven beyond reasonable
doubt.
In all criminal cases, the presumption of innocence of an
accused is a fundamental constitutional right that should be upheld
at all times, viz:

“2. In all criminal prosecutions, the accused shall be

presumed innocent until the contrary is proved, and shall
enjoy the right to be heard by himself and counsel, to be
informed of the nature and cause of the accusation
against him, to have a speedy, impartial, and public trial,
to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witnesses
and the production of evidence in his behalf. However,
after arraignment, trial may proceed notwithstanding the
absence of the accused provided, that he has been duly
notified and his failure to appear is unjustifiable.”5

In consonance with this constitutional provision, the burden of

proof rests upon the prosecution and the accused must then be
acquitted and set free should the prosecution not overcome the
presumption of innocence in his favor.6 Conversely, in convicting the
accused all the elements of the crime charged must be proven beyond
reasonable doubt,7 viz:

“Sec. 2. Proof beyond reasonable doubt. – x x x Proof beyond

reasonable doubt does not mean such a degree of proof as, excluding
possibility of error, produces absolute certainty. Moral certainty only
is required, or that degree of proof which produces conviction in an
unprejudiced mind.”8

Settled in our jurisprudence is the rule that the conviction of the

accused must rest, not on the weakness of the defense, but on the
strength of the prosecution. The burden is not on the accused to
prove his innocence.9

Right of the accused against

unreasonable search and
seizure has been violated.

5
Section 14(2), Article III of the 1987 Constitution
6
People v. Cruz, 736 Phil. 564, 580 (2014).
7
Ngo v. People, 478 Phil. 676, 680 (2004)
8
Rule 133, Rules of Court
9
Macayan Jr. v. People, 756 Phil. 202, 214 (2015).
4
 A search warrant is an order in writing issued in the name of
the People of the Philippines, signed by a judge and directed to a
peace officer, commanding him to search for personal property
described therein and bring it before the court.10

A search warrant is not a criminal action nor does it represent a

commencement of a criminal prosecution even if it is entitled like a
criminal action. It is not a proceeding against a person but is solely
for the discovery and to get possession of personal property. It is a
special and peculiar remedy, drastic in nature, and made necessary
because of public necessity. It resembles in some respects with what
is commonly known as John Doe proceedings.11

Like an arrest, the laws and rules governing a search warrant is

based upon constitutional guarantees. The pertinent constitutional
provision provides:

“Sec. 2: The right of the people to be secure 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 place to be searched and the persons or
things to be seized.”12

As a rule, the Constitution mandates that a search and seizure

must be carried out through or on the strength of a judicial warrant
predicated upon the existence of probable cause. In the absence of
such warrant, the search and seizure become unreasonable.13

The validity of a search warrant rests on the following factors:

(a) it must be issued upon probable cause;

(b) the probable cause must be determined by the judge

himself and not by the applicant or any other person;

10
Section 1, Rule 126, Rules of Court
11
United Laboratories, Inc. v. Isip, 461 SCRA 574, 591
12
Section 2, Article III, 1987 Constitution of the Philippines
13
Comerciante v. People, G.R. No. 205926, July 22, 2015
5
 (c) in the determination of probable cause, the judge must
examine, under oath or affirmation, the complainant and
such witnesses he may produce; and

(d) the warrant issued must particularly describe the

place to be searched and persons or things to be
searched.14

The absence of the requisites for a search warrant’s validity,

will cause its downright nullification.15

In the instant case, the search was unreasonable because the

accused did not commit a crime prior to the search and the search
warrant issued did not particularly describe the persons or things to
be searched.

The Search Warrant No. 0082-04-0317-12 issued by Honorable

Estela Alma Singco as Presiding Judge of Regional Trial Court Branch
12 on April 4, 2017 entails that:

“It is appearing to the satisfaction of the undersigned

after examining under oath the applicant SO2 MARIO T.
PORTUGAL, JR. together with his witness IO1 CHARLIE
MAGNE CORDOVA that there is probable cause to
believe that Violation of Section 11, Art. II of RA 9165
otherwise known as Comprehensive Dangerous Drug Act
of 2002 has been committed by Augustus Abella (also
known as Dodo) who is said to be residing at Brgy.
Sambag II, Cebu City, (with sketch hereto attached) and
that there is in his possession and control undetermined
quantity of methamphetamine hydrochloride, a
dangerous drug locally known as shabu in violation of
Sec. 11, Art. II of RA 9165 otherwise known as
Comprehensive Dangerous Drug Act.

WHEREFORE, you are hereby commanded to make an

immediate search, at any time of the day or night, of the
house of AUGUSTUS ABELLA (also known as Dodo) of
Brgy. Sambag II, Cebu City and forwith seize and take
possession of the aforementioned items subject matter of
this case.”

14
People v. Tuan, 628 SCRA 226, 245
15
Santos v. Pryce Gases, Inc., 538 SCRA 474, 483.
6
 During the implementation of the search warrant, no crime was
committed by the accused. These circumstances are highlighted
during cross when IO1 Cordova states that:

Cross-examination of IO1 Cordova by Atty. Labrado:

“xxx
Q: When the three, including you, chased the accused Donnie
Abella, at that time Donnie Abella did not commit any crime?
A: Committed sir.
Q: Meaning, when he ran he committed that crime of running?
A: Yes sir because we are serving a search warrant.
Q: Your search warrant has no corresponding warrant of
arrest?
A: None sir.
Q: Your not supposed to arrest him but to serve the search
warrant?
A: Yes sir.

Xxx

Tsn p. 10, April 12, 2018”

Further, this kind of facts and circumstance does not fall within
the ambit of search incident to a lawful arrest. A person lawfully
arrested may be searched, without a search warrant, for dangerous
weapons, or anything which may have been used or constitute proof
in the commission of an offense. 16

The “search-incident-to-a-lawful-arrest” exception is

authorized by the Rules of Court which provides:

“Sec. 13. A person lawfully arrested may be searched for

dangerous weapons or anything which may have been
used or constitute proof in the commission of an offense
without a search warrant.”17

The purpose of allowing a warrantless search and seizure

incident to a lawful arrest is “to protect the arresting officer from
being harmed by the person arrested, who might be armed with a
concealed weapon, and to prevent the latter from destroying
evidence within reach.”

Cross-examination of IO1 Cordova by Atty. Labrado:

16
People v. Almodiel, 680 SCRA 306, 322, September 5, 2012
17
Section 13, Rule 126, Rules of Court
7
 “xxx
Q: So meaning you’re understanding of the implementation of
the search warrant is to arrest first the accused?
A: No sir. Because of the resistance of the subject.
Q: Is it not you were talking to the woman?
A: Both them sir..
Q: Is it not that woman was the first person in the house to
meet you?
A: Yes sir.
Q: And then you heard, allegedly heard that woman shouting
“nay gobyerno”?
A: Yes sir.
Q: At that time when you heard “naay gobyerno” you did not
see the person of the accused, because the door was closed?
A: Yes sir.

Xxx

Tsn p. 11, April 12, 2018”

As regards search incidental to a lawful arrest, it is worth

emphasizing that a lawful arrest must precede the search of a person
and his belongings; the process cannot be reversed.18 Thus, it
becomes imperative to determine whether accused-appellant’s
warrantless arrest was valid.

The Rules of Court enumerates the instances wherein a peace

officer or a private person may lawfully arrest a person even without
a warrant:

“Sec. 5. Arrest without warrant; when lawful. – A peace

officer or a private person may, without a warrant, arrest
a person:

(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 of
facts or circumstances that the person to be 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

18
People v. Nuevas, 545 Phil. 356, 371 (2007)
8
 his case is pending, or has escaped while being
transferred from one confinement to another.”19

Paragraph (a) of Section 5 is commonly known as an in flagrante

delicto arrest. For a warrantless arrest of an accused caught in flagrante
delicto to be valid, two requisites must concur: (1) the person to be
arrested must execute an overt act indicating that he has just
committed, is actually committing, or is attempting to commit a
crime; and (2) such overt act is done in the presence or within the
view of the arresting officer.20 On the other hand, the elements of an
arrest effected in hot pursuit under paragraph (b) of Section 5 (arrest
effected in hot pursuit) are: first, an offense has just been committed;
and second, the arresting officer has probable cause to believe based
on personal knowledge of facts or circumstances that the person to be
arrested has committed it.21

Here, the testimony of OI1 Charlie Magne Cordova tries to

show that there was allegedly resistance on the part of the accused
when he ran to the third floor, even though former did not see the
person of the accused. This amplifies the existence of unreasonable
search or seizure and unlawful arrest.

Hence, the purpose sought to be prevented by the search-

incidental-to-lawful-arrest which is to protect the arresting officer
from being harmed by the person arrested was not present because
the accused did not commit the crime at the time of the alleged arrest.
The search-incidental-to-lawful-arrest does not apply because it
presupposes that the person searched was previously arrested
lawfully. Thus, a person illegally arrested cannot be validly searched
without the proper implementation of the warrant under this
provision.22 Accused Donnie Abella cannot be searched because he
was not lawfully arrested.

Moreover, the officer may break open any outer or inner door
or window of a house or any part of a house or anything therein
provided the following requisites are complied with:

(a) The officer gives notice of his purpose and

authority;
(b) He is refused admittance to the place of directed
search despite the notice; and

19
Section 5, Rule 113, Rules of Court
20
People v. Pavia, 750 Phil. 871 (2015)
21
Pestilos v. Generoso, 746 Phil. 301, 321 (2014)
22
People v. Collado, 698 SCRA 628, 644, June 17, 2013
9
 (c) The purpose of breaking is to execute the
warrant or to liberate himself or any person lawfully
aiding him when unlawfully detained therein.23

In the instant case, the officer did not give notice of his purpose
and authority. This can be gleaned during cross when IO1 Cordova
states that:

Cross-examination of IO1 Cordova by Atty. Labrado:

“xxx
Q: When you knocked on the door you met a woman?
A: Yes sir.
Q: The door is made of iron grills?
A: Yes sir.
Q: And it was padlocked?
A: Yes sir.
Q: And the door is also doubled covered with a door made of
wood?
A: No sir.
Q: Is it only an iron grills?
A: Steel plate door.
Q: So meaning, there is an steel plate door and then the iron
grill door?
A: Yes
Q: So, there were two doors?
A: Yes sir.
Q: So, it was opened by the woman?
A: Yes.
Q: When you forcibly open the door, you used the heavy metal
to destroy it?
A: Yes.
Q: How long did it take you to destroy it and forcibly opened?
A: Almost about a minute or several seconds.
Q: At that time when you forcibly open the door, you have not
yet recovered any contraband from the house?
A: No sir. We are following the subject …

Xxx

Tsn p. 8-9, April 12, 2018”

Further, the search warrant is constitutional infirm for it failed

to particularly describe the persons to be searched. This circumstance
is emphasized during cross when IO1 Cordova testifies that:

23
Section 7, Rule 126, Rules of Court
10
 Cross-examination of IO1 Cordova by Atty. Labrado:
“xxx
Q: Now your search warrant mentioned of Augustos Abella
also known as “Dodo” then in the complaint that you identify
him as a Abella Donnie Sakay?
A: Yes sir.
Q: Is it not that you were one of the Police Officers who
executed a deposition for the application of the search warrant?
A: Yes I’m the one of the deponent sir.
Q: Yes, because you were also one of those who conducted a
surveillance of Dodo?
A: Yes sir.
Q: And in your surveillance of the nation, did you come across
of the name Abella Donnie Sakay?
A: He was known on that name Augustos Abella.
Q: Yes, so you did not know whether he was known as a Abella
Donnie Sakay?
A: Yes sir.

Xxx

Tsn p. 7-8, April 12, 2018”

The effect of an illegal search and seizure is expressed in the

following constitutional provision:

“Sec. 3 (2). Any evidence obtained in violation of this or the

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

If the evidence is obtained through an unlawful search, the

seized item is inadmissible in evidence against the accused.24 This
exclusionary rule instructs that evidence obtained and confiscated on
the occasion of such unreasonable searches and seizures are deemed
tainted and should be excluded for being the proverbial fruit of a
poisonous tree.

The most important effect of an illegal search and seizure is the

exclusion of the evidence obtained from being used against the
person whose rights were violated by the search, the evidence being
the proverbial and jurisprudential “fruit of the poisonous tree.”
Corollarily, the following items seized from the accused namely:
plastic can with string, black sunglass case, assorted IDs, rolled tissue

24
Villanueva v. People, G.R. No. 199042, November 17, 2014.
11
paper, improvised glass tooter, used tin foil strips and transparent
plastic pack tied with yellow rubber bond containing white
crystalline substance are inadmissible for being “fruit of the poisonous
tree.” Without these confiscated items, no evidence is left to convict
accused Donnie Abella. Thus, an acquittal is warranted.

The charges against the

accused vis-à-vis the
requirement on the unbroken
chain of custody of the seized
drugs.

In Criminal Case Nos. R-CEB-17-02834-CR and R-CEB-17-

02835-CR, the accused was charged with violation of Sections 12 and
11, Art. II of R.A. No. 9165.

Jurisprudence dictates that to secure a conviction for illegal

possession of dangerous drugs under Section 11, Article II of R.A.
9165, the prosecution must establish the following: (1) the accused is
in possession of an item or object that is identified to be a prohibited
drug; (2) such possession is not authorized by law; and (3) the
accused freely and consciously possesses the said drug.25 On the one
hand, the elements of illegal possession of equipment, instrument,
apparatus and other paraphernalia for dangerous drugs under
Section 12 are the following: (1) possession or control by the accused
of any equipment, apparatus or other paraphernalia fit or intended
for smoking, consuming, administering, ingesting, or introducing
any dangerous drug into the body; and (2) such possession is not
authorized by law.

The Supreme Court declared that in all prosecutions for

violation of R.A. No. 9165, the corpus delicti is the dangerous drug
itself, the existence of whoch is essential to a judgment of conviction;
thus, its identity must be clearly established.26 The justification for
this declaration is elucidated as follows:

Narcotic substances are not readily identifiable. To

determine their composition and nature, they must
undergo scientific testing and analysis. Narcotic
substances are also highly susceptible to alteration,
tampering, or contamination. It is imperative, therefore,
that he drugs allegedly seized from the accused are the
very same objects tested in the laboratory and offered in

25
People v. Minanga, 751 Phil. 240, 248 (2015)
26
People v. Jaafar, G.R. No. 219829, 18 January 2017
12
 court as evidence. The chain of custody, as a method of
authentication, ensure that unnecessary doubts involving
the identity of seized drugs are removed.27

Equally significant therefore as establishing all the elements of

violations of R.A. No. 9165 is proving that there was no hiatus in the
chain of custody of the dangerous drugs and paraphernalia. It would
be useless to still proceed to determine the existence of the elements
of the crime if the corpus delicti had not been proven beyond moral
certainty. Irrefragably, the prosecution cannot prove its case for
violation of the provisions of R.A. No. 9165 when the seized items
could not be accounted for or when there were significant breaks in
their chain of custody that would cast doubt as to whether those
items presented in court were actually those that were seized. An
enlightened precedent provides for the meaning of chain of custody,
viz:

Chain of custody is defined as “the duly recorded

authorized movements and custody of seized drugs or
controlled chemicals or plant sources of dangerous drugs
or laboratory equipment of each stage, from the time of
seizure/confiscation to receipt in the forensic laboratory
to safekeeping to presentation in court for destruction."
Such record of movements and custody of seized item
shall include the identity and signature of the person who
held temporary custody of the seized item, the date and
time when such transfer of custody were made in the
course of safekeeping and use in court as evidence, and
the final disposition.28

The stringent requirement as to the chain of custody of seized

drugs and paraphernalia was given life in the provisions of R.A. No.
9165, viz:

“Sec. 21. Custody and Disposition of Confiscated, Seized,

and/or Surrendered Dangerous Drugs, Plant Sources of
Dangerous Drugs, Controlled Precursors and Essential
Chemicals, Instruments/Paraphernalia and/or
Laboratory Equipment. - The PDEA shall 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

27
Id.
28
People v. Ameril, G.R. No. 203293, 14 November 2016
13
 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/s 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.”29

Supplementing the above-quoted provision, the Implementing

Rules and Regulations (IRR) of R.A. No. 9165 mandates:

“(a) The apprehending officer/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/s 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: Provided, that the physical inventory and
photograph shall be conducted at the place where the
search warrant is served; or at the nearest police station or
at the nearest office of the apprehending officer/team,
whichever is practicable, in case of warrantless seizures;
Provided, further, that non-compliance with these
requirements under justifiable grounds, as long as the
integrity and the evidentiary value of the seized items are
properly preserved by the apprehending officer/team,
shall not render void and invalid such seizures of and
custody over said items.”30

On July 15, 2014, R.A. No. 10640 was approved to amend R.A.
No. 9165. Among other modifications, it essentially incorporated the
saving clause contained in the IRR, thus:

(1) The apprehending team having initial custody and

control of the dangerous drugs, controlled precursors and
essential chemicals, instruments/paraphernalia and/or
29
Section 21 (1), RA 9165
30
Section 21 (a), Implementing Rules and Regulation (IRR), RA 9165
14
 laboratory equipment shall, immediately after seizure
and confiscation, conduct a physical inventory of the
seized items and 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, with an elected public official and a
representative of the National Prosecution Service or the
media who shall be required to sign the copies of the
inventory and be given a copy thereof: Provided, That the
physical inventory and photograph shall be conducted at
the place where the search warrant is served; or at the
nearest police station or at the nearest office of the
apprehending officer/team, whichever is practicable, in
case of warrantless seizures: Provided, finally, That
noncompliance of these requirements under justifiable
grounds, as long as the integrity and the evidentiary
value of the seized items are properly preserved by the
apprehending officer/team, shall not render void and
invalid such seizures and custody over said items.

Four (4) links should be established in the chain of custody of

the confiscated item: 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 from the forensic chemist to the
court.31

Section 21 plainly requires the apprehending team to conduct a

physical inventory of the seized items and photographs the same
immediately after seizure and confiscation in the presence of the
accused, with (1) an elected public official, (2) a representative of the
Department of Justice (DOJ), and (3) a representative of the media, all
of whom shall be required to sign the copies of the inventory and be
given a copy thereof.

From the foregoing pronouncement, it is clear that the physical

inventory and photograph must be made in the presence of the
accused and of the statutory witnesses namely the representative of
the media, elective official and DOJ representative who are required
to sign the certificate of inventory. Applying the said rule, clearly, the
arresting officer failed to comply with this mandate. This can be
illustrated during cross when IO1 Cordova states that:
31
People v. Poja, G.R. No. 215937, 9 November 2016
15
 Cross-examination of IO1 Cordova by Atty. Labrado:
“xxx
Q: Then you have a photographer, correct?
A: Yes sir.
Q: Then the 3 of you went up?
A: Yes sir.
Q: Okay. So you went inside the 3x3 room upstairs?
A: Yes sir.
Q: The instruction was to take picture before you search?
A: Actually sir, I do not know sir.
Q: So you did not bother when will the photographer take
picture or not?
A: Not sir.

Xxx

Tsn p. 18, April 12, 2018”

Further, it is clear that the physical inventory and photograph

was not made immediately after seizure and confiscation in the
presence of the necessary witnesses. This was bolstered during the
cross-examination IO1 Cordova.

Cross-examination of IO1 Cordova by Atty. Labrado:

“xxx
Q: Do you have the turn-over sheet to Portugal for these items?
A: None.
Q: So you have recovered all these items and you have no
transmittal document to Portugal?
A: No, sir.
Q: These items were recovered in the 3 rd floor and you brought
these items down to the second floor or ground floor?
A: Ground floor.
Q: So, it was in the ground floor that you turned it over to
Portugal?
A: Yes sir.
Q: So, this Portugal was waiting downstairs?
A: Yes, sir.
Q: You were bringing this up in the 3rd floor and then without
placing them in a plastic container?
A: Yes, sir.
Q: So, at the 3rd floor, you placed them in a plastic container?
A: Yes, sir.
Q: Do you have a picture when they were place inside a plastic
container?
16
 A: No, sir.
Q: So you brought it down with marking already?
A: No sir.
Q: Then you turned it over to Portugal?
A: Yes, sir.
Q: Okay, so there was no transmittal?
A: No, sir.
Q: You did not sign in the inventory at the time that you
recovered and turned over to Portugal?
A: No, sir.

Xxx

Tsn p. 21-22, April 12, 2018”

The phrase “immediately after seizure and confiscation” means that

the physical inventory and photographing of the drugs were
intended by the law to be made immediately after, or at the place of
apprehension. And only if this is not practicable can the inventory
and photographing then be done as soon as the apprehending team
reaches the nearest police station or the nearest office. There can be
no other meaning to the plain import of this requirement. By the
same token, however, this also means that the required witnesses
should already be physically present at the time of apprehension – a
requirement that can easily be complied with by the implementation
of the search warrant considering that the implementation thereof is,
by its nature, a planned activity. Simply put, the apprehending team
has enough time and opportunity to bring with them said witnesses.

Thus, it is compliance with this most fundamental requirement

– the presence of the “insulating” witnesses – that the pernicious
practice of planting of evidence is foremost requirement provided by
Section 21 to ensure the preservation of “integrity and evidentiary
value of the seized drugs” in the implementation of the search
warrant whose nature, as already explained, is that it is a planned
operation.

Again, the plain language of this last proviso in Section 21 of

R.A. 10640 simply means that the failure of the apprehending
officer/team to physically inventory and photographs the drugs at
the place of arrest and/or to have the DOJ or media representative
and elected public official witness the same can be excused so long as
there are justifiable grounds for not complying with these
requirements and “as long as the integrity and evidentiary value of
the seized items are properly preserved by the apprehending
officer/team.
17
 Thus, it has been held that, as a general rule, strict compliance
with the requirements of Section 21 is mandatory. The Court may
allow noncompliance with the requirement only in exceptional cases,
where the following requisites are present: (1) the existence of
justifiable grounds to allow departure from the rule on strict
compliance; and (2) the integrity and the evidentiary value of the
seized items are properly preserved by the apprehending team. If
these two elements are present, the seizures and custody over the
confiscated items shall not be rendered void and invalid.

The first link in the chain of custody was undoubtedly

inherently weak which caused the other links to miserably fail. The
first link, it is emphasized, primarily deals on the preservation of the
identity and integrity of the confiscated items, the burden of which
lies with the prosecution. The obvious purpose of the inventory and
photography requirements under the law is precisely to ensure that
the identity of the drugs seized from the accused are the drugs for
which he would be charged. Any discrepancy should therefore be
reasonably explained; otherwise, the regularity of the entire seizure
procedure would be put into question. The identity and integrity of
the confiscated items as the evidence of the corpus delicti has been
compromised. This can be underscored during the cross-examination
IO1 Cordova.

Cross-examination of IO1 Cordova by Atty. Labrado:

“xxx
Q: Okay, the instruction was, when you braged in a room,
pictures would be taken?
A: Yes, sir.
Q: To preserve the integrity of any item recovered, correct?
A: Yes.
Q: When you recovered the shabu, pictures would be taken
before it is to be removed?
A: Yes, sir.
Q: Now, we are talking of shabu here inside this eye ware
container, you told this court this was placed under the TV
stand?
A: Yes sir.
Q: Do you have picture where this item?
A: Yes, sir.
Q: Okay. Before this was opened?
A: This one sir.

18
 Pros. Narido: Your Honor please, we would like to manifest
that the witness identified the picture taken under the TV stand
Your Honor, (continues)

Court: Is the TV stand ever depicted in this picture?

Pros. Narido: This is the space below the TV stand Your

Honor. It is not the whole TV stand Your Honor.

Atty. Labrado: Now where is the TV stand?

A: It’s the same place sir where we recover that item sir.
Q: Do you have a picture showing the stand?
A: None sir.

Xxx

Tsn p. 17, April 12, 2018”

Absence therefore the certainty that the items that were

inventoried and photographed, subjected to the laboratory
examination, and presented as evidence in court were exactly those
that were allegedly seized from Donnie Abella, there would be no
need to proceed to evaluate the succeeding links or to determine the
existence of the other elements of the charges against the appellants.
Clearly, the cases for the prosecution had been irreversibly lost as a
result of the weak first link irretrievably breaking away from the
main chain.

However, it must be also noted that the testimony of IO1

Cordova failed to mention glasses contained inside the box where the
dangerous drug was placed. This is shown during the cross
examination of IO1 Cordova.

Cross-examination of IO1 Cordova by Atty. Labrado:

“xxx
Q: You told this court that you allegedly recovered these sun
glass and eye ware box?
A: Yes, sir.
Q: You did not mention about the existence of these glasses in
your testimony?
A: No sir.
Q: Because its only now that you know the contents of the box?
A: Yes sir.
Q: Its only now that you see that these items 6 of 3 pairs of
colored galsses, correct?
A: Yes.
19
 Pros. Narido:
Q: Your Honor, may I …?

Atty. Labrado:
The answer is Yes.

Pros. Narido:
Yes, we will put on record Your Honor that it was Atty.
Labrado who found that sunglasses.

Atty. Labrado:
Yes. Thank you.

Q: Is it not that if you recover anything from the suspect you

have to thoroughly check what inside of that item if it has a
container inside. Correct?
A: Yes sir.
Q: In this particular eye ware, you did not thoroughly examine
what was inside at that time you recovered these Munchabi
convertible eyeglass, correct?
A: Yes sir.

Xxx

Tsn p. 6-7, April 12, 2018”

The presumption of regularity

in the performance of duty
cannot prevail in these cases.

Even the presumption as to regularity in the performance by

police officers of their official duties easily disappeared before it
could find significance in these cases. Continuing accretions of case
law reiterate that a high premium is accorded the presumption of
innocence over the presumption of regularity in the performance of
official duty, viz:

We have usually presumed the regularity of performance

of their official duties in favor of the members of buy-bust
teams enforcing our laws against the illegal sale of
dangerous drugs. Such presumption is based on three
fundamental reasons, namely: first, innocence, and not
wrongdoing, is to be presumed; second, an official oath
will not be violated; and, third, a republican form of
government cannot survive long unless a limit is placed
20
 upon controversies and certain trust and confidence
reposed in each governmental department or agent by
every other such department or agent, at least to the
extent of such presumption. But the presumption is
rebuttable by affirmative evidence of irregularity or of
any failure to perform a duty. Judicial reliance on the
presumption despite any hint of irregularity in the
procedures undertaken by the agents of the law will thus
be fundamentally unsound because such hint is itself
affirmative proof of irregularity.

The presumption of regularity of performance of official

duty stands only when no reason exists in the records by
which to doubt the regularity of the performance of
official duty. And even in that instance the presumption
of regularity will not be stronger than the presumption of
innocence in favor of the accused.

Recent cases32 have highlighted the need to ensure the integrity

of seized drugs in the chain of custody. Pertinently, we have held that
“[c]ourts must employ heightened scrutiny, consistent with the
requirement of proof beyond reasonable doubt, in evaluating cases
involving minuscule amounts of drugs … [as] they can be readily
planted and tampered [with].”33

The guilt of the accused was

not proven beyond reasonable
doubt.

This much is clear and needs no debate: blunders committed by

the police officers relative to the procedure in Sec. 21, R.A. No. 9165,
especially on the highly irregular manner by which the seized items
were handled, generates serious doubt on the integrity and
evidentiary value of the items. Considering that the seized items
constitute the corpus delicti of the offenses charged, the prosecution
should have proven with moral certainty that the items confiscated
during the implementation of the search warrant were actually those
presented before the RTC during the hearing. In other words, it must
be unwaveringly established that the dangerous drug and
equipment, instrument, apparatus and other paraphernalia for
dangerous drugs presented in court as evidence against the accused

32
People v. Jaafar, supra note 28, citing People v. Holgado, 741 Phil. 78, 81 (2014);
Tuano v. People, G.R. No. 205871, 28 September 2016; and People v. Caiz, G.R. No.
215340, 13 July 2016, 797 SCRA 26, 58
33
People v. Holgado, 741 Phil. 78, 100 (2014)
21
is the same as that seized from him in the first place.34 Under the
principle that penal laws are strictly construed against the
government, stringent compliance with Sec. 21, R.A. No. 9165 and its
IRR is fully justified.35 The breaches in the procedure provided in Sec.
21, R.A. No. 9165 committed by the police officers, and left
unacknowledged and unexplained by the State, militate against a
finding of guilt beyond reasonable doubt against the appellants as
the integrity and evidentiary value of the corpus delicti had been
compromised.36

To recapitulate, the records of these cases were bereft of any

showing that the prosecution had discharged its burden to: (1)
overcome the presumption of innocence which appellants enjoy; (2)
prove the corpus delicti of the crime; (3) establish an unbroken chain
of custody of the seized drugs; and (4) offer any explanation why the
provisions of Sec. 21, R.A. 9165 were not complied with.37

For failure to provide these proofs, clearly, the accused was not
committing a crime, hence, his arrest was illegal and therefore, any
items recovered from him is inadmissible in evidence.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of

this Honorable Court that this Demurrer to Evidence be GRANTED
and an Order DISMISSING the case be issued for failure of the
prosecution to establish the SUFFICIENT GUILT of the accused.

Other reliefs which are just and equitable are likewise prayed
for.
RESPECTFULLY SUBMITTED. Cebu City, Philippines. August
1, 2019.

P.B. LABRADO AND PARTNERS LAW OFFICES

Counsel for the Accused
Room 202, Aniceta Building,
Osmeña Blvd., Cebu City
Tel. No. (032) 412-4922

By:

MARC CHRISTIAN H. TANGPUZ

34
People v. Tamalio, et al., G.R. No. 208643, 5 December 2016
35
Rontos v. People, 710 Phil. 328, 355 (2013)
36
Gamboa v. People, G.R. No. 208643, 5 December 2016
37
People v. Ismael G.R. No. 208093, 20 February 2017
22
 Roll of Attorneys No. 72435
PTR No. 286140; Cebu Province, June 25, 2019
IBP No. 088386; Cebu Province, June 10, 2019
MCLE Exempt; Admitted to the bar June 14, 2019
Room 202, Aniceta Bldg. Osmena Blvd., Cebu City
Cell No. 0939 397 6604
marcchristiantangpuz@[Link]

REQUEST/ NOTICE

The Branch Clerk of Court

RTC 12, Cebu City
Quimunda Bldg., North Reclamation Area,
Cebu City

Greetings:

Please submit this DEMURRER to EVIDENCE to this

Honorable Court for its due consideration and approval upon receipt
without the appearance of counsel and argument.

MARC CHRISTIAN H. TANGPUZ

PROOF OF PERSONAL SERVICE:

HANDLING PUBLIC PROSECUTOR

RTC Branch 12
Office of the City Prosecutor
Palace of Justice, Capitol Site, Cebu City
Received by: __________
Date: _________________

23