Republic of the Philippines

REGIONAL TRIAL COURT

10th Judicial Region
Branch 29
Surigao City

People of the Philippines, CRIM CASE NO. 12954

Plaintiff,
FOR: VIOL OF SEC. 7 OF
-versus- R.A. 9165, ART II

KURT LISONDRA ESCALONA,

Accused.
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MOTION FOR JUDICIAL DETERMINATION OF

PROBABLE CAUSE
(WITH PRAYER TO DISMISS THE CASE)

Accused, by undersigned counsel, most respectfully moves that this

Honorable Court conduct a determination of probable cause pursuant to Article
III, Section 2 of the 1987 Constitution and in support thereof state the following:

1. Accused is charged under Section 7, Art. II, of RA 9165, for allegedly

visiting a DRUG DEN maintained by one HONORATO CARIAGA. Accused
was not charged for drug use and illegal possession of dangerous drugs.

2. The basis of the arrest and subsequent charge against the accused is
because accused was present at the time of the alleged buy-bust
operation conducted on the 5th day of May 2017 at purok 1, Brgy. San
Juan, Surigao City at the rented room of one Honorato Cariaga.

3. Other than this simple allegation in the affidavit of the poseur

buyer/apprehension that the subject room rented by Honorato Cariaga
was used as a drug den, NO OTHER EVIDENCE WAS SUBMITTED to prove
such fact that indeed the rented room is allegedly a drug den. No
surveillance report, video or photograph to prove the same or even to
give at least an impression of probable cause that indeed such room is a
drug den.

4. Cases of maintaining drug den against some respondents were even

dismissed by previous prosecutors on the GROUND OF HABITUALITY.
 5. To use the same ground to support this motion, and subsequently for
the dismissal of the same, one of the element of visiting drug den which
is HABITUALITY, is lacking in this instant case.

According to former Senator Robert Z. Barbers, a drug den as

defined in the law is a place where drugs are HABITUALLY USED BY
PEOPLE WHO FREQUENTED IT. It is a house or a portion thereof was a
place where any dangerous drugs is habitually being administered,
delivered, stored for illegal purposes, distributed, sold or used in any
form. Habituality is an element of the crime of maintenance of a den,
dive or resort. (The comprehensive Dangerous Drugs Act by Rodelio T.
Dacsil and David Roberto Aquino. Congressional Debate in Session No.
44, January 15, 2002)

6. Clearly, a perusal of the records if this case, and a reading from the
affidavit of the police officers, there is no allegation that herein accused
had been habitually or frequently visiting the room of Honorato Cariaga.
Nowhere can we read it or no evidence at all to prove such fact. The
only allegation relevant to the matter is that as quote: “we further
learned that this drug personality uses his room as a drug den and
maintained by him… xxx”. There is no mention of the name of the
accused that accused had been habitually visiting the alleged room as
drug den.

7. Moreover, nothing also in the information which contains an allegation

that accused had been habitually or frequently visited the alleged room,
which is an element of the crime of Violation of Section 7, of Art. II of RA
9165. One cannot prove what was not alleged.

8. Lastly, and needless to state, accused denied this alleged buy-bust

operation.

WHEREFORE, premises considered, accused respectfully prays for the

dismissal of the case.

Other relief just and equitable are likewise prayed for.

Respectfully submitted, June 15, 2017.

Surigao City, Philippines.

PUBLIC ATTORNEY’S OFFICE

Department of Justice
Surigao City/del Norte District Office
 Surigao City
Counsel for the Movant

By:

SHELDON G. ESPARRAGO
Public Attorney II
Roll No. 61991
IBP Lifetime No. 013564
MCLE Compliance No. V-0007521
PAO, Hall of Justice, Capitol Compound
Surigao City
Tel No. (086) 232-6475
Handling Lawyer

NOTICE OF HEARING

THE CLERK OF COURT

RTC BR 29
Surigao City

GREETINGS:

Please submit the foregoing motion for the consideration of the Honorable
Court on June 21, 2017 at 8:30 o’clock in the morning or immediately upon
receipt hereof.

Sheldon G. Esparrago
Copy Furnished:

City Prosecutor’s Office