You are on page 1of 7

Our group was assigned to counsel and to give advice to accused Glenn

Mallari who has been charged for violation of illegal possession of firearms in
relation with election law. The same was filed by Police Officers PO1 Stephen
Miral and PO1 Ricardo Faustino who were both assigned at PNP- Meycauayan
City (Bulacan).

I. INTRODUCTION:

The following are the steps we took in counselling the accused, to wit:

First, we introduced ourselves to be the counsels who were sought by his


relatives to handle his case. We told him that in the course of our counselling any
information he will divulge will be dealt with confidentiality. We also requested
him to honestly give us relevant facts regarding the case in order for us ascertain
easily what possible defenses we can do to help him. Thereafter, we started with
our counselling. We also explained to him our contract of engagement.

II. STATEMENT OF THE CASE:

We informed him of the charge filed against him.

We told him that the said violation under the Omnibus Election Code
specifically under Article 22, Section 261 (q) which shall be read as follows:

Article 22. Election Offenses

Sec. 261. Prohibited Acts.- The following shall be guilty


of an election offense:

(q) Carrying firearms outside residence or place of


business. - Any person who, although possessing a permit to
carry firearms, carries any firearms outside his residence or place
of business during the election period, unless authorized in
writing by the Commission: Provided, That a motor vehicle,
water or air craft shall not be considered a residence or place of
business or extension hereof.

This prohibition shall not apply to cashiers and disbursing


officers while in the performance of their duties or to persons
who by nature of their official duties, profession, business or
occupation habitually carry large sums of money or valuables.
We also read to him the complaint filed against him by the above stated
police officers as shown in the Pinagsamaang Salaysay dated 27 March 2013.

III. STATEMENT OF FACTS/ VERSION OF THE DEFENSE:

Then, we asked him of his version of the story. He narrated the facts as
follows:

In the morning of 27 March 2013, he received a call from his cousin Jose
Sunga, a candidate for councillorship in Meycauayan City (Bulacan). He was
informed by the latter that he had death threats and was also requested to
accompany him in his meeting in the afternoon. He acceded to the said request. He
immediately asked the help of his friend Louie Lactao who was also his co-
accused in this case to accompany him in going to his cousin’s place. He was told
by Louie that they need to bring with them firearms for their security. He
consented thereto. Louie brought along with him his home made hand gun while
he was given by the latter a replica hand gun. He was also told by the latter that he
had with him NBI badge which the latter obtained from an NBI friend for their
protection. Thereafter, they proceeded to their meeting place.

He stated that they really had helmets with them however the same were not
worn and were just held by them. Then, the rest followed as stated in the
complaint.

In short, the accused admitted the veracity of the complaint filed against
them, but alleged good faith and lack of criminal intent.

IV: DISCUSSIONS/ POSSILE DEFENSE/APPLICABLE LAWS:

Thereafter, we proceeded to the discussion of the case. They are as follows,


to wit:

1. As to their intent in bringing with them firearms:

We explained that we fully understand that their reason in bringing along


firearms was only for security purposes, but still we have a law to obey. No matter
how good their intention was, still mere possession of the said firearms without
authority of law constitutes a violation thereof.
Well entrenched is the rule in Criminal Law that violation of special
law being malum prohibitum, the defenses of good faith and lack of criminal intent
are immaterial.

Hence, his defense of good faith, as well as the lack of criminal intent on
their part, cannot be sustained.

2. As to the legalities of the search conducted thereto:

Under the law of Criminal Procedure, the general rule is that a judicial
warrant must first be duly obtained before the search and seizure may be
conducted. The only allowable instances in which a search may be conducted
without a warrant are: (1) search incident to lawful arrest, (2) search pursuant to
the plain view doctrine, (3) search of moving vehicles, (4) searches incidental to
violation of customs laws, (5) search with consent, and (6) a stop and frisk.

We explained that in the instant case, the theory of the prosecution as can be
implied on its complaint was that the firearms were seized from the accused was
in plain view.

In Luz vs. People, it has been held that commission of traffic violation shall
not per se constitute a lawful arrest considering that the person committing the
offense will only be imposed a penalty of fine or be given a traffic ticket, hence, is
not within the meaning of arrest as defined under the law. However, the seizure in
the instant case was not made incidental to a lawful arrest but on the theory of
plain view.

It cannot be gainsaid that the police officers in the instant case have the right
to flag down the accused considering that they were not wearing helmets at the
time that they were passing the check point. It was very clear that they committed a
violation of anti- helmet law.

When the accused stopped after they have been flagged down by the police
officers which was lawfully made in the performance of their official duty, it was
also the time when the police officers saw in plain view a gun in the waist of
accused Lactao.
However, with respect to herein accused the said plain view doctrine cannot
be made to apply considering that what the police officers only had were mere
suspicion that what was bulging in the waist of our client was also a firearm.

In People vs. Musa, it has been held that the plain view doctrine applies
when the following requisites concur: (1) the law enforcement officer is in a
position where he has a clear view of a particular area or has prior justification for
an intrusion; (2) said officer inadvertently comes across (or sees in plain view) a
piece of incriminating evidence; and (3) it is immediately apparent to such officer
that the item he sees may be evidence of a crime or a contraband or is otherwise
subject to seizure.

The above stated requisites were not complied with respect to the search
conducted against our client Mallari.

Neither the police officers can claim that the mere fact that accused acceded
to their order to raise their hands by which in doing so the firearms became more
visible, the accused already consented to the said search.

In a long line of cases decided by the Supreme Court, it has been held that if
a person who was searched consented to the warrantless search, then the same is
valid. However, silence or mere acquiescence is not considered consent to
warrantless arrest. The said waiver must be clear and unequivocal, that is, there is
no room for doubt must be left.

Here the acquiescence of both accused to the order of the police officers was
not clearly and unequivocally averred by the police officers based on their
complaints.

Thus, although the legality of the search has a leg to stand on, the defense
has to rebut during trial such legality. From there, we can validly question the
legality of search conducted against our client as the same was in violation of his
constitutional right against unreasonable search and seizure. Hence, anything
confiscated thereto will be inadmissible in evidence for being obtained illegally as
clearly stated in the doctrine of the fruit of the poisonous tree.
3. As to his constitutional rights to be informed of the nature of his case and his
right to counsel:

According to the accused, he was indeed informed of the said constitutional


rights when he was being arrested by the police officers.

Hence, the said defense is no longer available to the accused as he admitted


having been informed of the same.

V. RIGHTS AND PRIVELEGES UNDER THE LAW:

1. As to his qualification to avail probation law:

Under Article 22 Section 264 of the Omnibus Election Code provides that
any person found guilty of an election offense under this Code shall be punished
with imprisonment of not less than one year but not more than six years and shall
not be subject to probation.

By express provision of the law, the accused cannot avail of probation.

2. As to his right to bail:

Under Section 13, Article III of the Constitution, all persons except those
charged with offenses punishable by reclusion perpetua when evidence of guilt is
strong, shall before conviction, be bailable by sufficient sureties, or be released on
recognizance as provided by law.

Thus, the accused can avail of his right to bail considering that the offense
herein is a bailable offense having a penalty of imprisonment of not less than one
year but not more than six years.
VI. FINDINGS AND RECOMMENDATIONS:

In view of all the foregoing, the accused having admitted the veracity of the
facts narrated in complaint filed against him and after having explained to him
fully the legalities involving the case, we honestly told him that we cannot see any
possible grounds of acquittal just by merely relying on his version of the story.

However, we were able to see one loop hole which is the legality of the
seizure of the confiscated items against him and the further admissibility of said
pieces of evidence.

Hence, we recommended that we will just proceed with the case and will
just sharply monitor on how the prosecution will present its evidence. From there,
we will attack the legality of the seizure of confiscated items against him. If we
will succeed in doing that, we will eventually file a demurrer to evidence to get a
possible dismissal of the case.

It is a an elementary rule that in the prosecution of criminal cases the burden


proof lies with prosecution. Hence, we will just do our best to point out the
weaknesses of the prosecution’s theory of the case.

We also recommended him to post his bail.

Documents that we need to prepare like judicial affidavits and demurrers to


evidence are still pre- mature at this point in time.

In the execution of judicial affidavit in criminal cases, the same is not


mandatory, however, if there will be an agreement to that effect between parties,
then it is only the time that compliance thereto is a must. If it will be agreed upon,
then it will just be the only time that we will comply.
In the filing of demurrer to evidence, it can only be made after the
prosecution has rested its case and it shall be based on the weakness of the
prosecution’s evidence. Hence, it is still premature to prepare it now.

Motion to post bail shall also be prepared as soon as the accused will inform
us that he already financially prepared to post his bail.

You might also like