Republic of the Philippines

SUPREME COURT
Manila

PEOPLE OF THE PHILIPPINES Plaintiff,

- versus - Criminal Case No. xxxxxxx

For : Illegal Possession of Drugs

Clarlaine Radoc, Accused.

x--------------------------------------x

POSITION PAPER
(For the Prosecution)
-------------------------------------

The Prosecution to this Honorable Court, most respectfully avers:

I. Statement of Facts and of the Case

Ms. Yna, a graduate of the Philippine National Police Academy, is a

highly trained officer in the anti-narcotics group. She was assigned to the K9
department where she was partnered with a drug-sniffing dog named Krissy
with duty hours that run from 10 a.m. to 5 p.m.

One evening, around 9 p.m., Yna went jogging in Ayala where she
consequently spotted a female named Clarlaine vomiting beside the lobby of
Marriott. As Yna approached Clarlaine to offer her comfort, Krissy gave the
signal which indicated the presence of drugs inside the latters bag. Despite
the fact that Clarlaine was vomiting, Yna tried to search Clarlaines bag,
thereupon finding 5 pills of ecstasy inside it. Yna then accosted Clarlaine
and brought her to the nearest police station located in Mabolo where an
inquest proceeding was done and subsequently an information was filed in
court.

A case was filed in court by the Prosecution against Ms Clarlaine

Radoc where the counsel of the accused filed a motion questioning the
legality of the search and arrest done by Police Officer Yna Del Rosario.

Statement of the Issues

1
Prosecution proffers the following issues for the resolution of this
Honorable Court

I. Whether or not the search and arrest made by Yna was lawful.

II. Whether or not the possession of ecstasy by Clarlaine is considered

a crime that would justify the arrest made by Yna.

Arguments

I. The search and arrest made by Yna was lawful.

II. The possession of ecstasy is a crime that would justify the arrest made by
Yna.

Discussion
2
I. The search and arrest made by Yna was lawful based on the following
arguments:

A police officer is on duty 24 hours a day

Yna, while may have been off-duty when she made the arrest had the
responsibility to maintain peace and security as an official peace keeping
officer, as was held in the case of Employees Compensation Commission vs.
CA that:

Members of the national police, like P/Sgt. Alvaran, are by the nature of
their functions technically on duty 24 hours a day. Except when they are on
vacation leave, policemen are subject to call at any time and may be asked
by their superiors or by any distressed citizen to assist in maintaining the
peace and security of the community.1

Drug-sniffing dogs held to provide probable cause to search

The United States already laid down a doctrine on the reliability of

drug-sniffing dogs in determining a probable cause or reasonable suspicion
that a certain individual is in possession of drugs or other dangerous
substances. The case of Florida vs. Harris, which was decided in 2013, was
the first jurisprudence laid down by the Supreme Court of America which
addressed the consistency and dependableness of a sniff by a sniffing dog. In
the unanimous opinion, Justice Elena Kagan stated that the dog's
certification and continued training are adequate indication of his reliability
and dependableness, and thus is adequate to postulate the dog's attentiveness
provides probable cause to search, using the "totality-of-the-circumstances"
test (568 US _ (2013).

According to an article published by the California State University, A

totality of the circumstances standard suggests that there is no single
deciding factor, that one must consider all the facts, the context, and
conclude from the whole picture whether there is probable cause, or whether
an alleged detention is really a detention, or whether a citizen acted under
color of law.2 In other words, there probable cause must be present.

The probable cause test is an objective one, for in order

that there be probable cause the facts and circumstances
must be such as would warrant a belief by a reasonably

1 Employees Compensation Commission vs. CA, G.R. No. 115858, June 28, 1995

2 California State University, From the Incident through the System Legally: Knowledge Base of Legal
Concepts, January 16, 1999, https://www.csudh.edu/dearhabermas/totcirc.htm

3
 discreet and prudent man that the accused is guilty of the
crime which has just been committed.3

In the case at bar, Krissy, the K9 drug-sniffing dog, certified to be

highly trained, was able to signal the presence of a dangerous drug which
subsequently led police officer Yna to believe that Clarlaine was in
possession of such and she was subsequently found to be carrying the same
illegally, the act constituted as a crime against the laws of the State. To
ascertain the validity of the sniffing of the K9 would pose a question on
whether such sniffing infringes Clarlaine's right to privacy. Now, it must be
considered that what the K9 merely does is to determine whether a person is
in the possession of illegal drugs or not and in no way does it expose the
private belongings of a person to the public. Hence, it does not infringe the
right to privacy.

The K9, a duly certified and highly trained dog partnered with Yna, a
police officer, in pursuit of stopping potential crimes and offenses would
lead Yna into believing that Clarlaine is in possession of illegal substances.
Being tasked to uphold the law, it is only right that Yna search Clarlaines
bag for illegal substances.

Warrantless searches and arrests

The motion to question the legality of the search and arrest should be
denied for the same is legal under warrantless searches and arrests. The
search and arrest is valid.

As a rule, under Article 3, Section 2 of the 1987 Constitution provides:

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.4

However this rule that only a valid warrant issued by the court will justify a
valid and lawful search and arrest allows certain exceptions:

Warrantless Arrest:

1. When the person to be arrested has committed, is actually

committing or is attempting to commit an offense in his presence ( This
is also known as in flagrante delicto arrest)
3 Allado v Mendoza G.R. No. 113630 May 5, 1994
4 1987 Philippine Constitution, Section 2 Article 3
4
 2. When an offense had just been committed and there is
probable cause to believe, based on his personal knowledge of facts or
other circumstances that the person to be arrested has committed the
offense.
3. 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 temporarily confined while his case is pending or has escaped while
being transferred from one confinement to another.5

The above three (3) instances of valid warrantless arrest is also

provided under Section 5, Rule 113 of the Rules of Court.

It was also provided by jurisprudence that in all these three (3)

instances of valid warrantless arrest, probable cause must be present to
justify the arresting officer to effect arrest upon the person arrested. By
definition, probable cause is such facts and circumstances antecedent to the
issuance of the warrant that in themselves are sufficient to induce a cautious
man to rely on them and act in pursuance thereof. (People vs. Syjuco, 64Phil
667; Alvarez vs. CFI, 64 Phil 33)

Applying the above enumerated instances of warrantless arrest, the

arrest of Clarlaine falls under exception number 1 of a valid warrantless
arrest or under in flagrante arrest and the requirement of the existence
probable cause antecedent to the arrest of Clarlaine by the peace officer Yna
was all present. Kindly consider this discussion;
1. The act of vomiting although not a crime personally observed by
Yna causing her to comfort Clarlaine.
2 The act of Krissy, being an expert drug sniffing trained for the
discovery and search of illegal drugs, signaling to Yna that there is drug in
the bag of Clarlaine could be taken as a whole, are overt acts which induced
a cautious woman like Yna.
3. Coupled with the fact that, Krissy being highly trained in anti-
narcotics plus her experience and skills as peace officer to detect such
conduct are more than enough for her to rely on these facts and led Yna to
believe that Clarlaine is committing an offense and to effect arrest upon her
person and simultaneously thereof searched her bag to discover her
possession of 5 pills of ecstasy. Be it noted that possession of ecstasy being
an illegal drug, not being authorized to possess the same, is in itself a crime
or an offense. So basing on such factual milieu of the case, Clarlaine is in the
act of committing an offense/crime which is possession of illegal drugs
(ecstasy) and therefore Ynas act of arresting her is a valid warrantless arrest
for in her presence Clarlaine is committing possession of illegal drugs.
Further, in a plethora of cases rendered by the Supreme Court like in
the cases of People vs. Molina, G.R. No. 133917, February 19, 2001;
reiterated in People vs. SY Chua, G.R. Nos. 136066-67, February 4, 2004
and in People vs. Tudtud, G.R. No. 144037, Septmber 26, 2003, the High
Court ruled that reliable information alone, absent any overt act indicative
5 Rules of Court, Section 5 Rule 113
5
of a felonious enterprise in the presence and within the view of the arresting
officers, is not sufficient to constitute probable cause to justify arrest. It is
necessary that two requisites concur:
a. the person to be arrested must execute an overt act indicating
that he had just committed, is actually committing or is attempting to
commit a crime;
b. and such overt act is done in the presence or within the view of
the arresting officer

Applying the above twin requisites in the case at bar, to justify

existence probable cause before Clarlaine was arrested is well present. The
act of vomiting, standing alone being one of the most common symptoms or
side effects of drug abuses, considered in relation to Krissy signaling to Yna
that an illegal drug is inside Clarlaines bag in her possession taken as a
whole are already overt acts indicative of felonious enterprise that Clarlaine
is in possession of illegal drugs (ecstasy) prohibited and punished under our
laws and such overt acts of vomiting and Krissys signal of presence of
drugs in the bag is done in the presence or within the view of the arresting
officer Yna. All these stringent requirements are present to justify the
existence of probable cause and the eventual discovery after opening the bag
positive of ecstasy is therefore the arrest is valid under warrantless arrest.

The search is valid being incidental to a lawful warrantless arrest

There is no doubt that the limited search within her immediate control made
upon her bag is a valid warrantless search being incidental to lawful arrest.

As to the issue of the validity of search, no less than Section 13, Rule
126 of the Rules of Court and by jurisprudence allow warrantless search.
Among the enumeration of valid warrantless search is where the search
(and seizure) is an incidental to a lawful arrest.

Following the above reasoning that herein accused Clarlaine was

validly arrested under a valid warrantless arrest, she can be searched
including her bag within her immediate control and possession without a
need of a search warrant for this is incidental to a lawful arrest. As provided
in the Revised Rules on Criminal Procedure, to quote:
a person lawfully arrested may be searched for dangerous
weapons or anything, which may be used as proof of the commission of
an offense, without a search warrant.6

In the case of People vs. Estella, G.R. Nos. 138539-40, January 21,
2003, the Supreme Court ruled that the prevailing rule is that the
the arresting officer may take from the arrested individual any
money or property found upon the latters person- that which was used
in the commission of the crime or was the fruit of the crime or which
may provide the person arrested with the means of committing violence
6 Revised Rules on Criminal Procedure, Section 13 Rule 126
6
or escaping, or which may be used in evidence in the trial of the case.
The search must, however, be contemporaneous to the arrest and made
within a permissible area of search. (emphasis supplied).7

Applying the principle laid down in the Estella case in the case at bar,
clearly the search was made after Clarlaine was arrested or at least
contemporaneous to her arrest and the property found upon her person is an
ecstasy which was a fruit of the crime or used in the commission of the
crime since possession of it is illegal. It cannot also be denied that the search
was conducted within her permissible area (limited only to her bag) which is
in her possession and immediate control. No search made away from the
place where she was vomiting or it is done upon her property which she is in
possession.

The arrest must not necessarily precede the search if there is probable cause

In the case of People vs. JACK RACHO y RAQUERO, G.R. No.

186529, August 3, 2010 citing the case of People v. Aruta, 351 Phil. 868,
880 (1998). The Supreme Court ruled that: Recent jurisprudence holds that
in searches incident to a lawful arrest, the arrest must precede the search;
generally, the process cannot be reversed. Nevertheless, a search
substantially contemporaneous with an arrest can precede the arrest if the
police have probable cause to make the arrest at the outset of the search.[21]
Thus, given the factual milieu of the case, we have to determine whether the
police officers had probable cause to arrest appellant. Although probable
cause eludes exact and concrete definition, it ordinarily signifies a
reasonable ground of suspicion supported by circumstances sufficiently
strong in themselves to warrant a cautious man to believe that the person
accused is guilty of the offense with which he is charged.8

The signal of Krissy that there was a drug in the bag is a fact
constituting probable cause for the Yna to believe that a crime is being
committed by accused and thus the further search within the reach of the
accused (BAG) only justified the search being lawful. She was arrested
contemporaneous with the valid search and the circumstances justify Yna to
arrest for the crime is already committed in flagrante delicto (possession of
ecstacy is a crime itself). There is enough probable cause to justify
warrantless search incidental to lawful arrest. It does not require that arrest
must precede search, it is held by the court that warrantless search may be
validly made immediately before arrest as long as the search is
contemporaneous with or immediately preceded the arrest and the same
requires the arresting officer to act quickly given the circumstances of the
case

The nature of the circumstances called for the immediacy of the search

7 People vs. Estella, G.R. Nos. 138539-40, January 21, 2003

8 People vs. Jack Racho y Raquero, G.R. No. 186529, August 3, 2010
7
 Upon the signal of the drug-sniffing dog on Clarlaines bag, police
officer Yna responded to the heed of her trained dog. As a drug-sniffing dog,
its senses were trained to detect substances that can be found in illegal drugs.
Yna merely relied on the regularity of the function of her drug-sniffing dog.

Prosecution posits that the circumstances merits a valid search without

a search warrant because obtaining such warrant before opening the bag of
Clarlaine would not be practicable as it would be irrational, if not too late in
the order of events. The Supreme Court has permitted warantless searches in
similar cases, because according to Posadas v Court of Appeals:

It is too much indeed to require the police officers to search

the bag in the possession of the petitioner only after they shall
have obtained a search warrant for the purpose. Such an
exercise may prove to be useless, futile and much too late.9

II. The possession of ecstasy is a crime that would justify the arrest made
by Yna.

The mere possession of ecstasy is punished under section 11 of RA 9165

which states that:

The penalty of life imprisonment to death and a fine ranging from

Five hundred thousand pesos (P500,000.00) to Ten million pesos
(P10,000,000.00) shall be imposed upon any person, who, unless authorized
by law, shall possess any dangerous drug in the following quantities,
regardless of the degree of purity thereof:

(8) 10 grams or more of other dangerous drugs such as, but

not limited to, methylenedioxymethamphetamine (MDA) or
"ecstasy", paramethoxyamphetamine (PMA),
trimethoxyamphetamine (TMA), lysergic acid diethylamine
(LSD), gamma hydroxyamphetamine (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, as
determined and promulgated by the Board in accordance to
Section 93, Article XI of this Act.10

Otherwise, if the quantity involved is less than the foregoing

quantities, the penalties shall be graduated as follows:

9 Posadas v Court of Appeals, G.R. No. 89139 August 2, 1990

10 RA 9165, Paragraph 1 (8) Section 11
8
 (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.11

It is clear from the viewpoint of RA 9165 that indeed the law punishes
possession of ecstasy which in this case was inside her bag and was lawfully
searched by Yna.

Prayer

In view of the foregoing, the search made incidental to a lawful

warrantless arrest is valid, constitutional and within the guidelines laid down
by jurisprudence, rules and statutes. Thus, the motion should be denied and
this Honorable Court is humbly prayed to sustain the validity of the search
and proceed to the hearing of this case.

MOST RESPECTFULLY SUBMITTED

Date:

By:

Prosecutor

Copy furnished to : ________

Counsel for the State

11 RA 9165, Paragraph 2 (3) Section 11

9
Khen Aquino

Justin Gular

Jana Baduel

Mary Iway

Hannah Mae Blanco

Philip Jaramillo

Virgilio Bito II

Sandy Miyagi

Christine Bontuyan

Katrina Mongaya

Tessie Jean Camello

Frank Lorenzo Pizzaras

Yna Del Rosario

Psalm Pueblos

Jeffrey Fuentes

Richard Angelo Tiu

Ralph Gonzales

10