MEMORANDUM

for the Accused

Submitted by: Roland S. Alivio IV-Teehankee

Submitted to: Atty. Jane G. Baguio-Verdida Public Attorney II

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Republic of the Philippines REGIONAL TRIAL COURT OF LANAO DEL NORTE 12th Judicial Region BRANCH 01 Iligan City

PEOPLE OF THE PHILIPPINES, Plaintiff, -versusCRIM. CASE NO. 13755 For: Violation of Section 11 Art. II of RA 9165

JUAN DELA CRUZ Accused,: x-------------------------------------------------x

MEMORANDUM FOR THE ACCUSED

The accused, JUAN DELA CRUZ, though the undersigned counsel, unto this Honorable Court most respectfully submit and present this Memorandum in the above-titled case and aver that:

FACTS OF THE CASE The Information read as follows: That on or about May 1. 2008, in the City of Iligan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, without authority of law, did then and there willfully, unlawfully and feloniously have in his possession, custody and control nine (9) plastic sachet of Methamphetamine Hydrochloride weighing more or less 10.25 grams locally known as Shabu. CONTRARY to and in VIOLATION of Section 11 Article II of Republic Act 9165.

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TSN, SP02 Diosdado Cabahug, October 29, 2008, p. 42 TSN, SP02 Diosdado Cabahug, October 29, 2008, p. 18 3 TSN, SP02 Diosdado Cabahug, October 29, 2008, p. 23-24 Page 3 of 4

The Joint Affidavit of SP02 Diosdado L. Cabahug, SP02 Edgardo A. Englatiera and NUP Carlito M. Ong states: That when we reached the place, the raiding team entered inside the house of Juan dela Cruz at the second floor of the house were the room occupied by the aforementioned suspects. However Pedro dela Cruz had noticed the presence of the raiding team and immediately he was able to sneak out at the back door of the house and run away to elude arrest leaving behind his companion identified as Juan dela Cruz, the owner of the house, who was at that time doing repacking of Methamphetamine Hydrochloride or Shabu and we were able to recover nine (9) plastic sachet of suspected Methamphetamine Hydrochloride or Shabu weighing more or less 10.25grams . . . .

ISSUES I. WHETHER OR NOT THE SEARCH AND SEIZURE CONDUCTED BY THE PDEA IS LEGAL; II. WHETHER OR NOT THE SEIZED 9 NINE SACHETS OF SHABU AND OTHER PARAPHERNALIA ARE ADMISSIBLE ACCUSED. DISCUSSION AND ARGUMENTS I. The PDEA agents had committed an illegal search and seizure. The right against unreasonable searches and seizures is secured by Section 2, Article III of the Constitution. However, Law and jurisprudence have laid down the instances when a warrantless search is valid. These are: 1. Warrantless search incidental to a lawful arrest recognized under Section 12 [now Section 13], Rule 126 of the Rules of Court and by prevailing jurisprudence; 2. Seizure of evidence in "plain view," ; IN EVIDENCE AGAINST THE

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3. Search of a moving vehicle. Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity; 4. Consented warrantless search; 5. Customs search; 6. Stop and Frisk; and 7. Exigent and Emergency Circumstances. The PDEA agents had a Warrant of Arrest when they conducted their operation. The said warrant was for a certain Felipe dela Cruz for violation of Section 5 of RA 9615 and not the accused. The first instance of a valid warrantless search cannot be applied here because the target of the warrant is not the same person tried in this case. It is a warrant of arrest for another person as admitted by one of the prosecutions witness, SP02 Diosdado Cabahug. 1 The search was illegal from the start because when they were already inside the house of the subject of the warrant, they found out that their target was not already there and yet they continue to search the house. unreasonable search. Also, the PDEA committed another blunder because they had already conducted the illegal search and upon finding drug paraphernalia on the floor of the house thats only the time that they frisked one the suspects they caught and found the nine (9) sachets of shabu in his pocket. 3 What they should have done is upon arresting him, they should have frisked him first for illegal weapons, drugs, etc. before conducting the search. . II. The evidence against the accused is inadmissible against him. The 1987 Constitution states that a search and consequent seizure must be carried out with a judicial warrant; otherwise, it becomes unreasonable and any evidence obtained therefrom shall be inadmissible for any purpose in any proceeding. The search and seizure conducted by the PDEA in this case is without
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They should have

pursued the target of their mission first instead of continuing the illegal and

TSN, SP02 Diosdado Cabahug, October 29, 2008, p. 42 TSN, SP02 Diosdado Cabahug, October 29, 2008, p. 18 3 TSN, SP02 Diosdado Cabahug, October 29, 2008, p. 23-24 Page 5 of 4

a valid warrant and the admissibility of the confiscated drugs can be question on the ground that it was the fruit of the poisonous tree, According to Chief Justice Narvasa in the case of People vs. Alicando, December 12, 1995, We have not only constitutionalized the Miranda warnings in our jurisdiction. We have also adopted the libertarian exclusionary rule known as the "fruit of the poisonous tree," a phrase minted by Mr. Justice Felix Frankfurter in the celebrated case of Nardone v. United States. According to this rule, once the primary source (the "tree") is shown to have been unlawfully obtained, any secondary or derivative evidence (the " fruit " ) derived from it is also inadmissible. Stated otherwise, illegally seized evidence is obtained as a direct result of the illegal act, whereas the "fruit of the poisonous tree" is the indirect result of the same illegal act. The "fruit of the poisonous tree" is at least once removed from the illegally seized evidence, but it is equally inadmissible. The rule is based on the principle that evidence illegally obtained by the State should not be used to gain other evidence because the originally illegally obtained evidence taints all evidence subsequently obtained. As a consequence of the illegal search, the things seized on the occasion thereof are inadmissible in evidence under the exclusionary rule. They are regarded as having been obtained from a polluted source, the fruit of a poisonous tree. However, the prohibited drugs seized cannot be returned to their owners notwithstanding the illegality of their seizure. Thus, the shabu seized by the PDEA, which cannot legally be possessed by the accused under the law, can and must be retained by the government to be disposed of in accordance with law. PRAYER WHEREFORE, in view of all the foregoing, it is respectfully prayed of this Honorable Court that the accused be ACQUITED of the case against him. Respectfully submitted. Iligan City, August 24, 2012.

ROLAND S. ALIVIO Page 6 of 4

Counsel for the Accused Iligan City

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TSN, SP02 Diosdado Cabahug, October 29, 2008, p. 42 TSN, SP02 Diosdado Cabahug, October 29, 2008, p. 18 3 TSN, SP02 Diosdado Cabahug, October 29, 2008, p. 23-24 Page 7 of 4