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Legal Memorandum For Prosecution
Legal Memorandum For Prosecution
BRANCH 2, MANILA
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STATEMENT OF FACTS
On April 13, 2009 at around 1:45am, along Concha Street, San Andres,
Bukid, Manila, one NORMAN DIMAIN y BUENAFE, 21 years old, single, jobless
and residing at 2173 Concha Street, San Andres, Bukid, Manila was arrested
for violating Sec. 13, in relation 12, Art. II of RA 9165 (The Comprehensive
Dangerous Drugs Act of 2002).
ISSUES
II. Whether or not the arrest of DIMAIN and the subsequent search on
him was in violation of the Constitution.
Such drugs were in the possession of marijuana as the pipe was found in
his custody. No explanation was ever given by DIMAIN for legally possessing
the drug. In fact, he freely and consciously smoke and consumed the drug
while his companions awaited their turn. DIMAIN was seen and observed by
the arresting officers of the PNP in the act of smoking marijuana through an
improvised pipe made of cigarette foil, with two (2) other companions, just
five (5) meters away.
The mere fact that only the pipe was found to contain burnt blackish
residue of marijuana, in a small amount of .045 grams, does not mean DIMAIN
should not to be punished for possession of dangerous drugs. In this case, the
RA 9165 still provides for a punishment for such small doses of burnt
marijuana.
b. In any case, DIMAIN violated Sec. 12 and Sec. 15 Art. II of the same
act.
Section 12 provides that any person who, unless authorized by law, shall
possess or have under his control any equipment, instrument, apparatus and
other paraphernalia fit or intended for smoking or consuming any dangerous
drug shall be punished with imprisonment ranging from six (6) months and
one (1) day to four (4) years and a fine ranging from Ten thousand pesos
(P10,000) to Fifty thousand pesos (P50,000).
Further, the Implementing Rules for the aforesaid section states that the
possession of such equipment, instrument, apparatus and other paraphernalia
shall be prima facie evidence that the possessor had smoked or consumed the
dangerous drug. In this light, Section 15 is also becomes applicable.
Section 15 provides that a person arrested, who is found for use of any
dangerous drug, after a confirmatory test shall be imposed a penalty and fine,
the severity of which depends upon the number of times he has been arrested
for the same purpose.
The fact that DIMAIN was arrested with an improvised pipe creates a
presumption that such instrument was used by the possessor for smoking and
consuming marijuana. As such, the punishments provided in Section 15
should be applied.
II. The arrest of DIMAIN and subsequent search are not in violation
of the Constitution.
a. DIMAIN was validly arrested.
It is noteworthy that before the said arrest of DIMAIN, the members of the
PNP had observed DIMAIN and his companions smoking marijuana from five
(5) meters away. The officers concluded that a dangerous drug was being
consumed due to the distinct smell emulating from the make shift foil pipe.
Section 13, Rule 126 of the Rules of Court provides that 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.
Due to the fact that a valid warrantless arrest was made upon the person of
DIMAIN, the peace officers of the PNP were well within the ambit of law when
they made the subsequent search.
PRAYER
The prosecution prays for such other reliefs and remedies that are just
and equitable under the premises.
RESPECTFULLY SUBMITTED.
ANGELINE B. BUENAVENTURA
Assistant City Prosecutor
Roll No. 67890 / 5-25-15
IBP No. 445566 / 5-25-07
MCLE Exempt
PTR Exempt
Copy furnished: