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Republic of the Philippines

Supreme Court of the Philippines
th Judicial Region

Branch 8, Hall of Justice

Cotabato City, ...



-versus- For: “VIOLATION OF SEC. 5

ART. II, R.A. 9165”




Accused aided by the undersigned counsel, by way of special

appearance solely for this purpose before this Honorable Court, most
respectfully avers, THAT

1. That the above-named accused is presently being detained

at ... Provincial Jail, located at XXXX XXXX, ..., after his
arrest made by the PNP YYY YYY, ...;

2. The per Criminal Information , the accused has been

charged and prosecuted with no-bail recommendation
offense specifically that of selling of dangerous drugs under
Section 5, Article of Republic Act 9165;

3. That after carefully and assiduously assessing the factual

and legal circumstances of the instant case as well as the
pieces of evidence proffered by the prosecution, the accused
is of the considered position that the evidence of his guilt is
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not that strong as to deny him of his constitutionally-

enshrined right to bail

4. That section 13, Article of the Constitution provides the “ All

person, except those charged with offenses punishable by
Reclusion Perpetua when the evidence of guilt is strong, shall,
before conviction, be bailable by sufficient sureties, or be
released on recognizance as may be provided by law. The
right to bail shall not be impaired even when the privilege of
the writ of Habeas Corpus is suspended. Excessive ail shall
not be allowed;

5. That Section 8, Rule 114 of the Revised Rules of Criminal

Procedure also Provides that “No person charge with capital
offense, or an offense punishable by Reclusion Perpetua or
Life Imprisonment, shall be admitted to bail when the
evidence of guilt is strong, regardless of the stage of the
criminal prosecution”.

6. That Section 8 Rule 114 of the Revised Rules of Criminal

Procedure further provides that “at the hearing of an
application for bail filed by the person who is in custody for
the commission of an offense punishable by Death, Reclusion
Perpetua or Life Imprisonment, the prosecution has the burden
of showing that the evidence of guilt is strong”.

7. That unless the prosecution could present evidence showing

that the guilt of the accused is strong specifically in Criminal
Case 5929, the accused must be immediately admitted to
post bail by the court.
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8. That in this case we argued that the evidence of guilt of the

accused is not that strong. The evidence was obtained with
patent disregard of the procedure. Hence, it is fruit of the
poisonous tree. It cannot be admissible any court and in any
proceeding. It is clearly stated in the Affidavit of PINSP XYZ
, Officer In-charge of YYY, Municipal Police Station, as
Annex A thus;

14. Thar after my informant having in a covert operation, immediately calls me and informed the
exchanging of the shabu and the marked money was made between my informant and Juan,
then, informed me regarding the location in the above mentioned intersection and now driving
towards Barangay Poblacion, YYY, ... driving a color red motorcycle wearing color yellow light
yellow jacket, wearing color black eye glass and putting his color black helmet on his left

15. That I immediately instructed my personnel together with the joint operatives together with
the Brgy. Official and media representative and we just waited at ZZZZ, .... Fortunately I saw
the approaching motorcycle with complete description given by impormant stated above The
and there, I instructed my personnel to stop the aprroaching motorcycle then arrest;

16. That did then, my personnel was humbly stop and he was informed the reason of his arrest
and appraised of the constitutional rights of the accused the rights to remain silent, right to
have a competent and independent counsel of his choice of your choice, if he cannot afford
one, the government will provide him free of charge, anything he will say will be used against
him in any court of the law in the Philippines in Cebuano dialect to estate to him based on his
understanding and further asked if he understood;

This statement is corroborated by rrr and yyy assigned

in YYY, Municipal Police Station. They were the
apprehending officer in this case in their joint affidavit, as
Annex B.

Law and jurisprudence have laid down the instances

when a warrantless search is valid one of those is
warrantless search incidental to a lawful arrest as recognized
under Section 13, Rule 126 of the Rules of Court and by
prevailing jurisprudence

Sec. 13. Search incident to lawful arrest. – 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.

There should be a valid warrantless arrest first before

the conduct of search. Sec. 5, Rule 113 of the Rule of
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Criminal Procedure provides the instances when arrest

without warrant is lawful, thus;

Section 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 his case is pending, or has escaped while
being transferred from one confinement to another.

The arrest of Juan made by the PNP Personnel of YYY,

... under XYZ, never fall within the above-mentioned
instances of the valid arrest. The accused was just driving a
motor vehicle when he was stop and arrested. At the moment
of his arrest, he was not committing a crime. Nor was he
about to do so or had just done so. In the case of People vs.
Aminnudin, 163SCRA402. The search was illegal.
Defendant was not caught in flagrante delicto, which could
allow warrantless arrest or search. At the moment of his
arrest, he was not committing a crime. Nor was he about to do
so or had just done so. To all appearances, he was like any of
the other passengers innocently disembarking from the
vessel. The said marijuana therefore could not be appreciated
as evidence against the defendant, and furthermore he is
acquitted of the crime as charged.

Therefore the evidence obtained against the accused is

the product of the illegal search. It is a fruit of the poisonous
tree and cannot be used against the accused. The search was
not an incident of a lawful arrest because there was no
warrant of arrest and the warrantless arrest did not come
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under the exceptions allowed by the Rules of Court. Hence,

the warrantless search was also illegal and the evidence
obtained thereby was inadmissible.

9. That the determination of whether the evidence of guilt of the

accused is strong or not must be made is a summary hearing
considering the urgent nature of bail proceedings and as the
liberty of the accused is primarily at stake.

10. That the summary hearing means such brief and speedy
method of receiving and considering the evidence of guilt as
is practicable and consistent with the purpose of the hearing
which is merely to determine the weight of evidence for
purposes of bail.

11. On such hearing, the court does not sit to try the merits or
to enter into any nice inquiry as to the weight that ought to
be allowed to the evidence for or against the accused, nor will
it speculate on the outcome of the trial or on what further
evidence may be therein offered or admitted. The Course of
inquiry may be left to the discretion of the court which may
confine itself to receiving such evidence as has reference to
substantial matters, avoiding unnecessary thoroughness in
the examination and cross examination {Siason v. Presiding
Judge, et al, 42 SCRA 184}

WHEREFORE, premises considered, it is most respectfully

prayed of this honourable court to grant the application for bail by
setting thus cases immediately for summary hearing purposely to
determine whether the evidence of guilt of the accused is strong or
not so as to grant or deny him his constitutionally protected right to
post bail.
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Cotabato City, ..., Philippines 18 April 2018


Counsel for the Accused
(Appearing for this purpose only)
P-12A, Poblacion, UUU, ...
Roll of Attorneys No.



The undersigned counsel is submitting the foregoing motion for the

consideration and approval of the Honorable Court immediately upon receipt
hereof or on a date to be set by the honourable court with prior notice to the
parties for hearing and further arguments