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Motion To Quash
Motion To Quash
OMNIBUS MOTION
(1) TO QUASH THE SEARCH WARRANT AND TO EXCLUDE ILLEGALLY
SEIZED EVIDENCE AND (2) TO QUASH THE INFORMATION
The Accused, through the undersigned Law Firm, and unto this
Honorable Court, most respectfully avers that:
ARGUMENTS
IN SUPPORT OF MOTION TO QUASH THE SEARCH WARRANT
AND TO EXCLUDE ILLEGALLY
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2. The applicants for the search and seizure are members of the
Philippine National Police – ---------------------------, the same operating unit
who implemented the search and seizure order. Thus, it is highly
improbable for the applicants of the search warrant not to know the
exact address of the accused that should be reflected in the search
warrant.
4. Rule 125 of the Rules of Court, Section 4 provides for the requisites for
issuing a search warrant, to wit: (1) it must be based upon a probable
cause; (2) probable cause must be determined by the issuing judge
personally; (3) the judge must have personally examined, in the form
of searching questions and answers, the applicant and his witnesses
and taken down their written depositions; (4) the search warrant
must particularly describe or identify the property to be seized as far
as the circumstances will ordinarily allow; (5) the warrant issued must
particularly describe the place to be searched and the persons or
things to be seized; (6) it shall issue only for one specific purpose; and
(7) it must not have been issued more than 10 days prior to the search
made pursuant thereto.
The law states that a warrant shall describe with particularity the
place to be searched and the things to be seized. A general
warrant is a search warrant which vaguely describes and does not
particularize the personal properties to be seized. The warrant is not
valid since it violates the constitutional and law provisions specifically
the fifth requisite of a valid search warrant.
a. The seizing officer did not sign the Receipt for Property Seized but
instead allowed the persons present at the searched premises to
sign the same;
b. Perusal of the Receipt for Property Seized would reveal that there
were no markings placed on the items allegedly confiscated from
the accused. As a result thereof, the integrity of seized items
particularly the subject/object of this case is highly doubtful. Sec. 21
of RA 9165 proscribes that the items confiscated should be
properly marked and inventoried. In this case, it is clear that there
were no proper markings and inventory that was conducted by the
operating team;
d. The police officers did not inform accused of his Miranda Rights
and he was not accompanied by his counsel when the searching
team forced and induced him to sign the said certification;
e. In the case of People of the Philippines vs. Castillo, G.R. No. 153254,
September 30, 2004, the Supreme Court enunciated:
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While PO3 Petallar testified that appellant was read her
constitutional right, it was not clearly shown that she was
informed of her right not to sign the receipt and that it can
be used as an evidence against her. If appellant was indeed
informed of her constitutional right, it is unusual for her to
sign the receipt acknowledging ownership of the seized
items without the assistance of counsel considering that she
wanted to get a lawyer. In People vs. Go, we found the
inventory receipt signed by appellant inadmissible for being
violative of her custodial right to remain silent, thus:
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receipt for the P20.00 bill as purchase price of the dried
marijuana leaves he sold to Pat. Mangila.
g. Failure to comply with the rules shall put the integrity of the
confiscated items as doubtful which is tantamount to
unreasonable search and seizure.
ARGUMENTS
IN SUPPORT OF MOTION TO QUASH SEARCH WARRANT
10. In Antone vs. Beronilla, G.R. no. 183824, December 8, 2010, we define
a motion to quash an Information as ˗
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It is axiomatic that a complaint or information must state every
single fact necessary to constitute the offense charged;
otherwise, a motion to dismiss/quash on the ground that it
charges no offense may be properly sustained. The fundamental
test in considering a motion to quash on this ground is whether
the facts alleged, if hypothetically admitted, will establish the
essential elements of the offense as defined in the law.
12. In this instant case, the object is the (4) pieces of plastic sachet with
traces of white crystalline substance, which is not a violation under RA
9165. The crime punished under Sec. 11 of RA 9165 is the possession of
methamphetamine hydrochloride and not possession of plastic sachet
with traces of methamphetamine hydrochloride.
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(1) Life imprisonment and a fine ranging from Four hundred
thousand pesos (P400,000.00) to Five hundred thousand pesos
(P500,000.00), if the quantity of methamphetamine hydrochloride or
"shabu" is ten (10) grams or more but less than fifty (50) grams;
(2) Imprisonment of twenty (20) years and one (1) day to life
imprisonment and a fine ranging from Four hundred thousand pesos
(P400,000.00) to Five hundred thousand pesos (P500,000.00), if the
quantities of dangerous drugs are five (5) grams or more but less than ten
(10) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride,
marijuana resin or marijuana resin oil, methamphetamine hydrochloride or
"shabu", or other dangerous drugs such as, but not limited to, MDMA or
"ecstasy", PMA, TMA, LSD, GHB, and those similarly designed or newly
introduced drugs and their derivatives, without having any therapeutic
value or if the quantity possessed is far beyond therapeutic requirements;
or three hundred (300) grams or more but less than five (hundred) 500)
grams of marijuana; and
(3) Imprisonment of twelve (12) years and one (1) day to twenty
(20) years and a fine ranging from Three hundred thousand pesos
(P300,000.00) to Four hundred thousand pesos (P400,000.00), if the
quantities of dangerous drugs are less than five (5) grams of opium,
morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or
marijuana resin oil, methamphetamine hydrochloride or "shabu", or other
dangerous drugs such as, but not limited to, MDMA or "ecstasy", PMA,
TMA, LSD, GHB, and those similarly designed or newly introduced drugs
and their derivatives, without having any therapeutic value or if the
quantity possessed is far beyond therapeutic requirements; or less than
three hundred (300) grams of marijuana.
16. Assuming arguendo that this Honorable Courts finds accused guilty of
the offense charged, he could not be penalized of the appropriate
penalty under RA 9165 because of the fact that there was no quantity
or weight reflected in the information. There would be no logical basis
for the court to impose any penalty;
17. The failure of the prosecution to indicate the quantity of the alleged
shabu seized from the accused in the information is a fatal defect
considering that in all prosecutions for violation of drug laws, the
existence of dangerous drug which is the subject of the offense is a
condition sine qua non for the conviction since the same is the very
corpus delicti of the crime.
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PRAYER
Such other reliefs which are just and equitable under the premises are
likewise prayed for.
NOTICE OF HEARING
Please submit the foregoing motion for the consideration and approval
of the Honorable Court preferably on ____________ or at anytime convenient
to the Court.
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NOTICE
Please be advised that the foregoing was set for the consideration and
approval of the Honorable Court preferably on ______________ or at anytime
convenient to the Court.
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PROOF OF SERVICE
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