REPUBLIC OF THE PHILIPPINES

FOURTH JUDICIAL REGION

REGIONAL TRIAL COURT
BRANCH 84-BATANGAS CITY

THE PEOPLE
OF THE PHILIPPINES,
Plaintiff, CRIM. CASE NO.
15037

-versus - for

RON OLIVER REYES , VIOL. OF RA 9165

Accused.
x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-

DEMURRER TO EVIDENCE

COMES NOW, the undersigned counsel for accused

RON OLIVER REYES, after leave has been granted by the
Honorable Court, most respectfully moves that this case be
dismissed on the ground that the evidence adduced by the
Prosecution is not sufficient to establish the guilt of the accused
beyond reasonable doubt in the instant case.

PROSECUTION’S EVIDENCE

The Prosecution presented several witnesses, one of whom

was PO2 Otelio Santos. According to Santos, on July 20 2009 at
around 1:00 in the morning, he was on patrol with PO1 Rico
Virtucio. He stated that they saw a motorcycle parked at 7-11
Convenience Store. Two persons were on board the motorcycle.
They noticed that the motorcycle had no plate number so they
approached it to verify the same. The motorcycle, it turned out
however, had a plate number.

Santos claimed that he noticed that motorcycle was registered

for the year 2006. Hence, he approached the driver, accused Ron
Oliver, and asked the latter if he had with him the registration and
driver’s license. Santos further claimed that he found from the
registration that the motorcycle was registered only for the year
2006. When accused was asked to show his driver’s license, Santos
stated that a folded newspaper fell down from accused’s pocket.
Santos picked it up and saw that it contained dried leaves which he
suspected as marijuana leaves. Santos, thereafter searched the
motorcycle and claimed that he found just near the steering guide
of the motorcycle, a plastic sachet containing dried marijuana
leaves. Then a search on the person of Ron Oliver was conducted.
An improvised toother and matchbox were likewise found in the
jacket of the accused. Moreover, a pen gun with three (3) live
ammunition was also found in Ron Oliver’s pocket.

They then went to the Barangay Hall of Barangay 3 to have

the incident recorded in the blotter. According to Santos, it was at
the Barangay Hall where they met the other police officers,
Guzman and Yap. It was also at the Barangay Hall where an
inventory of the alleged confiscated items was made. Pictures were
also taken at the Barangay Hall. Thereafter, the folded paper
containing the dried leaves was brought by Santos and de Guzman
to the Batangas Provincial Crime Laboratory for examination.

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 Forensic Chemist Jupri Delantar, NUP Allan Medina, PO3
Clint Adora, Brgy. Captain Danilo Untalan, SPO1 Pepito
Adelantar, PO Rico Virtucio, and SPO1 Reynante de Chavez were
also presented as witnesses.

DISCUSSIONS

A. ARREST MADE AGAINST ACCUSED WAS

UNLAWFUL

Under Sec. 5, Rule 113 of the Revised Rules of Criminal

Procedure, a peace officer or a private person may, without a
warrant, arrest a person only on the following instances, to wit:

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, that the person 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 instant case does not fall under any of the instances when
a warrantless arrest may be made. The arresting officers had no
personal knowledge that that accused was carrying illegal objects.

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 They approached the parked motorcycle because they
mistakenly thought that the said vehicle had no plate number.
However upon reaching the motorcycle, they found out that the
same had a plate number although partially hidden. It was only
thereafter that they found out that motorcycle was registered only
for the year 2006.

The accused can only be said to have committed a mere

traffic violation wherein law enforcers are mandated to conduct a
no contact policy when it comes to the apprehension of violators of
traffic laws. Hence, the arresting officer’s act of opening the
alleged folded newspaper which fell from accused’s pocket was
out of line for he was not aware of the contents of the same. It was
not Santos’ business to open the alleged folded newspaper for two
reasons: (a) he had no personal knowledge that the same contained
illegal objects, and (b) because of the no contact policy mandated
by the law.

Therefore, the arrest of the accused was unlawful. Well

entrenched is the rule that no arrest, search and seizure can be
made without a valid warrant issued by a competent judicial
authority. This is such a sacred right that no less than the
fundamental law of the land decrees it:

“The right of the people to be secure in their persons,

houses, papers and effects against unreasonable searches
and seizures of whatever nature and for any purpose, shall
be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined
personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be
searched, and the persons or things to be seized.”

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 Considering that the arrest of the accused is illegal, the search
incidental thereto suffers the same defect.

Thus, any evidence obtained, if there was any, in violation of

said right shall be inadmissible for any purpose in any proceeding.

In the case of People vs. Cuizon [G.R. No. 109287. April 18,
1996], the Supreme Court held that “where a person is searched
without a warrant, and under circumstances other than those
justifying a warrantless arrest, as discussed above, upon a mere
suspicion that he has embarked on some criminal activity, and/or
for the purpose of discovering if indeed a crime has been
committed by him, then the search made of such person as well as
his arrest are deemed illegal. Consequently, any evidence which
may have been obtained during such search, even if tending to
confirm or actually confirming such initial suspicion, is absolutely
inadmissible for any purpose and in any proceeding, the same
being “the fruit of the poisonous tree.”

In the instant case, assuming without admitting, that

marijuana was indeed confiscated from the accused, considering
that the arrest of the accused is illegal, the search incidental thereto
suffers the same defect.

As provided in People vs. Sarap, G.R. No. 132165. March

26, 2003 “There is simply no sufficient evidence to convict her.
That the search disclosed marijuana fruiting tops in appellant’s
possession, and thus confirmed the police officers’ initial
information and suspicion, did not cure its patent illegality. An
illegal search cannot be undertaken and then an arrest effected on

4
the strength of the evidence yielded by the search for being a fruit
of a poisonous tree.”

B. THE RIGHT OF THE ACCUSED AGAINST SELF-

INCRIMINATION WAS VIOLATED WHEN HE WAS
ASKED TO SIGN THE DOCUMENT WITHOUT THE
ASSISTANCE OF COUNSEL

Section 12 of Article III of the 1987 Constitution embodies the

mandatory protection afforded a person under investigation for the
commission of a crime and the correlative duty of the State and its
agencies to enforce such mandate. It states:

(1) Any person under investigation for the

commission of an offense shall have the right to be
informed of his right to remain silent and to have
competent and independent counsel preferably of his
own choice. If the person cannot afford the services of
counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence
of counsel.

(1) No torture, force, violence, threat, intimidation or any

other means which vitiate the free will shall be used
against him. Secret detention places, solitary,
incommunicado, or other similar forms of detention are
prohibited.
(2) Any confession or admission obtained in violation of
this or section 17 hereof shall be inadmissible in
evidence against him.
(3) The law shall provide for penal and civil sanctions for
violations of this section as well as compensation to and
rehabilitation of victims of torture or similar practices,
and their families.

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 Lapses on the part of the police officer are fatal to the
admissibility of the evidence obtained against the accused. The
Supreme Court, along these lines, have all been too consistent in
its ruling - that an accused under custodial interrogation must
continuously have a counsel assisting him from the very start
thereof.

The Constitution is clear that a confession obtained in violation

of the rights of an accused cannot be used as evidence. Law
enforcement agencies are required to effectively communicate the
rights of a person under investigation and to insure that it is fully
understood. Any measure short of this requirement is considered a
denial of such right. The rationale of right to counsel at all times is
intended to preclude the slightest coercion as would lead the
accused to admit something false. In the instant case, the accused
was not assisted by a counsel when he signed the certificate of
inventory.
This is what Santos had to say on cross-examination:

ATTY. PEREZ:

Q: The person of the accused Oliver Reyes and

Alexander Reyes…and there are signatures here,
whose signature is this?

A: This is the signature of my companion Virtucio.

Q: How about this one?
A: And this is the signature of Untalan.
Q: How about the signature above the printed name
Ron Oliver and Alexander Reyes, are these their
respective signatures?

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 A: Yes, sir.
xx xx
Q: And you will agree with me Mr. Witness that
there is no signature of a lawyer who reprented
Mr. Ron Oliver Reyes during the inventory and
during the time he affixed his signature in this
certificate of inventory, that is correct?

A: None, sir.
(TSN/March 31, 2008 pp. 22-
23).

There was a flagrant violation of the constitutional right to

counsel of the accused in the case at bar. He was not assisted by
counsel during the inventory and when he signed the certificate of
inventory. Consequently, since a certificate of inventory is a
document, tacitly admitting the offense charged, the constitutional
safeguard must be observed.

The Supreme Court held in the case of People vs. Rodriguez

(G.R. No. 129211, October 2, 2000) that “the purpose of providing
counsel to a person under custodial investigation is to curb the
uncivilized practice of extracting confession even by the slightest
coercion as would lead the accused to admit something false. What
is sought to be avoided is the “evil of extorting from the very
mouth of the person undergoing interrogation for the commission
of an offense, the very evidence with which to prosecute and
thereafter convict him.” These constitutional guarantees have been
made available to protect him from the inherently coercive
psychological, if not physical, atmosphere of such investigation.

Moreover, so stringent is this requirement that even if the

confession of an accused speaks the truth, if it was made without

7
the assistance of counsel, it is inadmissible in evidence regardless
of the absence of coercion, or even if it had been voluntarily
given.”

C. THE PROSECUTION’S EVIDENCE FAILED TO

ESTABLISH THE IDENTITY OF THE SPECIMENS OR
CORPUS DELICTI AND ITS CHAIN OF CUSTODY.

There is moral uncertainty as to whether the specimens

allegedly taken from the accused were still the same specimens
brought to the crime laboratory for examination. Santos admitted
that the alleged pieces of evidence confiscated from the accused
were not marked at the place where was arrested.

Santos on cross-examination:
ATTY. PEREZ:
Q: So based on this barangay blotter Mr. Witness,
immediately after the arrest you did not place the
markings that you have identified at the place
where Mr. Ron Oliver Reyes was arrested, that is
correct?
A: We only made the markings when we were
already at the barangay hall.
Q: Not at the place where the two (2) accused were
arrested, that is correct?

A: No sir, after we arrested, we turned over to the

barangay.
(TSN/ March 31, 2008/p.
16)

Moreover, the barangay blotter did not contain any

distinction as to whether the evidence was taken from the accused,

8
Ron Oliver Reyes or from his companion Oliver Reyes. Neither
was there a distinction contained in the certificate of inventory
executed at the Barangay Hall.

Santos on cross-examination:

ATTY. PEREZ:

Q: What I’m asking Mr. witness is whether there is a

certainty of the evidence that was taken from the
Ron Oliver Reyes as against the evidence taken
from Alexander Reyes in this barangay blotter?

A: None sir, it was only stated that there is the

marijuana, and the pen gun, and the 22 caliber,
ammunition.

(TSN/ March 31, 2008/ pp. 15-16)

The Supreme Court held in the case of People vs. Coreche

G.R. No. 182528, August 14, 2009 that “Crucial in proving chain
of custody is the marking of the seized drugs or other related items
immediately after they are seized from the accused. Marking after
seizure is the starting point in the custodial link, thus it is vital that
the seized contraband are immediately marked because succeeding
handlers of the specimens will use the markings as reference. The
marking of the evidence serves to separate the marked evidence
from the corpus of all other similar or related evidence from the
time they are seized from the accused until they are disposed of at
the end of criminal proceedings, obviating switching, “planting,”
or contamination of evidence.”

9
 It is apparent that a doubt exists as to the identity of the
specimens allegedly confiscated from the accused. This lapse
could not just be ignored because “of prime importance in these
cases is that the identity of the dangerous drug be likewise
established beyond reasonable doubt. In other words, it must be
established with unwavering exactitude that the dangerous drug
presented in court as evidence against the accused is the same as
that seized from him in the first place. The chain of custody
requirement performs this function in that it ensures that
unnecessary doubts concerning the identity of the evidence are
removed.” (Catuiran vs. People/ G.R. No. 175647/ May 8, 2009)

The prosecution’s failure to mark the evidence at the place

where they were confiscated created doubt in the identity of the
corpus delicti and has created a gap in its chain of custody.

D. THE ARRESTING OFFICERS DID NOT COMPLY

WITH THE REQUISITES OF R.A. 9165

In the instant case, at the outset of the drug operation of the

apprehending officers against the accused, their actions were
already procedurally flawed and repugnant to the explicit
provisions of Section 21 of Republic Act 9165. There was an utter
lack of attempt on the part of the arresting officers to comply with
the mandatory requisites of R.A. 9165. Section 21 of said law
which provides that:

SEC. 21. Custody and Disposition of

Confiscated, Seized, and/or Surrendered Dangerous
Drugs, Plant Sources of Dangerous Drugs and
Essential Chemicals, Instruments/Paraphernalia
and/or Laboratory Equipment. – The PDEA shall take

10
 charge and have custody of all dangerous drugs, plant
sources of dangerous drugs, controlled precursors and
essential chemicals, as well as
instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered,
for proper disposition in the following manner:

(1) The apprehending team having initial

custody and control of the drugs SHALL, immediately
after seizure and confiscation, PHYSICALLY
INVENTORY and PHOTOGRAPH THE SAME IN THE
PRESENCE OF THE ACCUSED or the person from
whom such items were confiscated and/or seized, or
his/her representative or counsel, a
REPRESENTATIVE FROM THE MEDIA and the
DEPARTMENT OF JUSTICE (DOJ), and any
ELECTED PUBLIC OFFICIAL who shall be required
to SIGN THE COPIES OF THE INVENTORY and be
given a copy thereof (italics and capitalization ours)

In the case at bar, the alleged confiscated evidence was not

marked at the place where the accused was arrested. Instead, the
alleged pieces of evidence were marked in the Barangay Hall.

Secondly, the evidence allegedly taken from the accused was

not inventoried in the presence of the representatives from the
Media and from the Department of Justice.

This procedural lapse on the part of the arresting officers was

not left unnoticed by the Honorable Court. This is what the
Honorable Court had to say:

COURT:
Q: Mr. witness, are you aware of the provisions of
Republic Act 9165, particularly Section 21
thereof?
A: Yes, your Honor, custody of evidence.

11
COURT:
The Court is just asking you if you are aware of it.

A: Yes, your Honor.

Q: You are also aware that an inventory must have
to be prepared in connection with the confiscation
of illegal drugs?

A: Yes, you Honor.

Q: You are also aware that in the preparation of the
inventory a representative from DOJ,
representative from the media, elected officials
are necessary in the preparation thereof?

A: Yes, your Honor.

Q: You will agree with the Court that despite the
absence of the representative from the media and
representative from the DOJ in this particular
case you still prepared the inventory?

A: Yes, your Honor.

Q: Why did you do that?
A: It’s 1:00 in the morning your Honor, and we may
not contact any representative from the media
and DOJ.

Q: And the law provides that if the inventory was

made or is being made during that hours they are
excused from appearing?

A: No, your Honor.

Q: So, you will agree that it is a must or the
representative of the media as well as the
representative of the DOJ to appear and affix
their signatures in the inventory?

A: Yes, your Honor.

12
 Q: Would you agree now with the Court that you did
not comply strictly with the provisions of Section
21 of Republic Act 9165?

A: Yes, your Honor. (TSN/ June 22, 2009/pp. 15-16)

In People vs. Ruiz Garcia (G.R. 173480, February 25,
2009), the Supreme Court held that “specific procedures relating to
the seizure and custody of drugs have been laid down in the law
(R.A. No. 9165) for the police to STRICTLY follow. The
prosecution must adduce evidence that these procedures have been
followed in proving the elements of the defined offense.”

In criminal cases, the prosecution has the onus probandi of

establishing the guilt of the accused – ei incumbit probation non
qui negat – he who asserts, not he who denies, must prove.
(People vs. Asis 391 SCRA 108). Thus, when the guilt of the
accused has not been proven with moral certainty due to lack and
or insufficiency of the evidence for the prosecution, the
constitutional presumption of innocence of the accused must be
upheld and his exoneration from the crime charged must be
favored as a matter of right.

PRAYER

WHEREFORE, premises considered, herein accused

most respectfully prays to this Honorable Court that the above-
entitled case be dismissed and that herein accused be acquitted of
the crime charged on the ground that the prosecution failed to
establish the guilt of the accused beyond reasonable doubt in the
instant case.

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 Such other reliefs, just and equitable under the premises are
likewise prayed for.

Batangas City, December 1, 2009.

PUBLIC ATTORNEY’S OFFICE

DEPARTMENT OF JUSTICE
BATANGAS DISTRICT OFFICE
HALL OF JUSTICE BUILDING
PALLOCAN, BATANGAS CITY
Counsel for the Accused

By:

JOSELITO A. PEREZ
Public Attorney 3
Roll No. 40072
MCLE Compliance No. II- 0010854

The Branch Clerk of Court

Regional Trial Court
Branch 84- Batangas City

G R E E T I N G S:

Please submit the foregoing Demurrer to Evidence to the

Honorable Court immediately upon receipt hereof.

JOSELITO A. PEREZ

14
Copy furnished:

The City Prosecutor

Batangas City

JAP/dennis…

REPUBLIC OF THE PHILIPPINES

FOURTH JUDICIAL REGION
REGIONAL TRIAL COURT
BRANCH 84-BATANGAS CITY

THE PEOPLE
OF THE PHILIPPINES,
Plaintiff, CRIM. CASE NO.
15037

-versus - -f o r-

RON OLIVER REYES , VIOL. OF RA 9165

Accused.
x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-

MOTION FOR LEAVE OF COURT

TO FILE DEMURRER TO EVIDENCE

COMES NOW, accused RON OLIVER REYES, thru the

undersigned counsel de oficio, and unto this Honorable Court,
most respectfully aver:

15
 That on_____________, the Public Attorney’s Office
received a copy of the Order issued by this Honorable Court
admitting Exhibits “___” to “_____” with their submarkings
which were formally offered by the Prosecution, and hence, the
latter is now considered to have rested its case;

That after a careful and thorough evaluation of the evidence

presented by the Prosecution, the undersigned counsel honestly
believes that the evidence is not sufficient to establish the guilt of
the accused beyond reasonable doubt;

The Prosecution failed to establish that the arrest of the

accused was legal and therefore, the charge that arose from the said
arrest cannot be the proper basis for the charge against the accused.
In the instant case, the arresting officers mistakenly thought that
the motorcycle driven by the accused had no plate. The police
officers saw that the motorcycle had a plate number but it was
registered only for the year 2006. At the most, it can be said that
accused only committed a mere traffic violation where the law
mandates law enforcers to conduct a no contact policy.

There was no reason for the accused to inspect the alleged

newspaper which fell out of the pocket of the accused by virtue of
the no contact policy and the fact that he had no personal
knowledge that it contained any illegal objects. Hence, it can only
be said that the arrest of the accused was unlawful.

Consequently, the pieces of evidence allegedly confiscated

from accused Ron Oliver Reyes by virtue of the unlawful arrest
made by Santos should likewise fail for being fruits of the
poisoned tree.

The Supreme Court had already made a pronouncement in

circumstances which were similarly situated like that of the instant
case, to wit:

If a person is searched without a warrant or under

circumstances other than those justifying an arrest
without a warrant in accordance with law merely on
suspicion that he is engaged in some felonious

16
 enterprise, it is not only the arrest, which is illegal, but
also the search on the occasion thereof as being the fruit
of the poisonous tree.” ( People vs. Malmstedt, 198
SCRA 401)

Flagrantly violated in the present case was the

constitutionally guaranteed right to counsel and right against self-
incrimation. Section 12, Article III thereof, provides: “(1) Any
person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to
have competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must
be provided with one. These rights cannot be waived except
writing in and in the presence of counsel. xxx (3) Any confession
or admission obtained in violation of this or Section 17 hereof shall
be inadmissible in evidence against him.” In the case at bar, the
accused was not assisted by an attorney during the inventory.
Neither was a counsel present when the accused affixed his
signature on the certificate of inventory.

Moreover, There is no certainty as to the whether the

specimens allegedly obtained from the accused were the same
specimens brought to the barangay hall for inventory up to the time
they were brought to the crime laboratory for examination. A gap
in the chain of custody existed from square one, that is when the
arresting officers failed to mark the pieces of evidence at the place
where the accused was arrested. “While there is no need to present
all persons who came into contact with the seized drugs to testify
in court, the prosecution still has to convincingly establish that the
chain of custody remained unbroken throughout, and the seized
items specifically identified. This the prosecution failed to
discharge.” (Dolera vs. People, G.R. No. 180693, September 4,
2009)

Also worthy to consider is the fact that the arresting officers

failed to comply with the mandatory requisites of Sec. 21 of
Republic Act No. 9165 and their failure to justify their non-

17
compliance of the aforementioned law is fatal to the prosecution's
case.

In People vs. Ruiz Garcia (G.R. 173480, February 25, 2009),

the Supreme Court held that “specific procedures relating to the
seizure and custody of drugs have been laid down in the law (R.A.
No. 9165) for the police to strictly follow. The prosecution must
adduce evidence that these procedures have been followed in
proving the elements of the defined offense.”

That for failure of the prosecution to prove the guilt of

accused beyond reasonable doubt absolves the latter for the crime
charged.

PRAYER

WHEREFORE, premises considered, it is most respectfully

prayed of this Honorable Court that the undersigned counsel be
granted leave of court to file demurrer to evidence within ten (10)
days from receipt of the Order granting this Motion, or within a
reasonable time the Honorable Court may deem just and
appropriate under the circumstances.

Batangas City,________________.

PUBLIC ATTORNEY’S
OFFICE
DEPARTMENT OF JUSTICE
BATANGAS DISTRICT
OFFICE
HALL OF JUSTICE BUILDING
PALLOCAN, BATANGAS
CITY
Counsel for the Accused

By:

18
 JOSELITO A. PEREZ

NOTICE OF HEARING

The Provincial Prosecutor

Batangas City

The Branch Clerk of Court

Regional Trial Court
Branch 84, Batangas City

G R E E T I N G S:

Please take notice that this Motion will be submitted for

hearing on --------------------------

JOSELITO A.
PEREZ
Copy furnished:

The City Prosecutor

Batangas City

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