Republic of the Philippines

REGIONAL TRIAL COURT

BRANCH 10
Malaybalay City, Bukidnon

PEOPLE OF THE PHILIPPINES

-versus- CRIM. CASE No. 001
For: Violation of Section 5, Article II of
Republic Act No. 9165

CARLOS LUCERO,
Accused.
x----------------------------------------x

DEMURRER TO EVIDENCE

The Accused, assisted by the counsels and unto this Honorable Court, respectfully moves
to dismiss the above-entitled action for insufficiency of evidence.

The information was filed in this Honorable Court, and the accusatory portion reads:

Crim. Case No. 001
(For: Illegal sale of shabu)

That on or about the 1
st
day of December, 2013, in the city of Malaybalay, province of Bukidnon,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
without authority of law and legal justification, did then and there wilfully, unlawfully and
feloniously sell dangerous drug consisting of shabu.

Contrary to law.

The accused pleaded Not Guilty to the charge. The prosecution presented on trial the
testimonies of the arresting PNP officers.

STATEMENT OF THE FACTS

The facts as alleged by the PNP officers during the presentation of their evidence upon
which the prosecution based the indictment of the accused are as follows:

On December 1,2013 at about 7 oclock in the evening, the PNP went to San Jose and
knocked on the door of Mr. Lucero purportedly to buy shabu. Mr Lucero allegedly received
the money and handed shabu to the poseur-buyer, there and then he was immediately
arrested.


After admission of its offered exhibits, the prosecution rested its case.


ISSUES


I. The prosecution failed to establish that the PNP officers had the basis to conduct the buy-
bust operation.

II. The machine copy of the alleged PDEA Authorization to Operate against Illegal drug
Dealers is inadmissible to prove their authority to conduct the buy-bust operation.

III. Inability to present sufficient evidence to prove the consummation of the alleged sale of
illegal drugs.

IV. There was non-observance of the procedure laid down in R.A. 9165 in the conduct of a
buy-bust operation.

V. The PNP officers failed to state that they apprised the accused of his constitutional rights
under Article III, Sec. 11 before he was arrested.

VI. The act of signing the inventory violated the constitutional right of the accused to remain
silent.



ARGUMENTS


I.

It is stated in the PNP Manual on Anti-Illegal Drugs Operation and Investigation Sec.
11(c) that Good intelligence is indispensable in the planning and preparation for an operation. It
must be a product of careful analysis of all relevant information such as maps, physical
description of target premises, sketches, personality profiles of suspects, terrain and population
analyses of the area(s) and other information that can contribute to the apprehension of suspects
and/or seizure of prohibited items and evidence with the least danger posed to operating
elements.

The arresting officers did not show their basis for conducting the buy-bust operation on
Mr. Carlos Lucero. The court ruled in Quinicot v. People (G.R. No. 179700, June 22, 2009, 590
SCRA 458, 470.), Settled is the rule that the absence of a prior surveillance or test buy does not
affect the legality of the buy-bust operation. There is no textbook method of conducting buy-bust
operations. The Court has left to the discretion of police authorities the selection of effective
means to apprehend drug dealers. A prior surveillance, much less a lengthy one, is not necessary,
especially where the police operatives are accompanied by their informant during the
entrapment. Flexibility is a trait of good police work. We have held that when time is of the
essence, the police may dispense with the need for prior surveillance. In the instant case, having
been accompanied by the informant to the person who was peddling the dangerous drugs, the
policemen need not have conducted any prior surveillance before they undertook the buy-bust
operation.
Hence, it can be concluded that prior surveillance or test buy before a buy-bust operation
can be done away. But this is subject to the condition that the police officers must have known
the identity of the alleged seller beforehand by some means. The court held that prior
surveillance or test buy is not necessary when the police officers are accompanied by an
informant to the person peddling the dangerous drugs. In the case, the buy-bust team was not
accompanied by an informant. The PNP officers did not establish how they knew the identity of
Mr. Carlos Lucero. Their buy-bust operation was baseless.

II.

The document entitled PDEA Authorization to Operate Against Illegal Drug Dealers is
merely a machine copy. There was no showing that there exists a record of the public document.
While a public document does not require the authentication imposed upon a private
document, there is a necessity for showing to the court that indeed a record of the official acts of
official bodies, tribunals or of public officers exists. Sec. 24 of Rule 132 supplies the answer.
The record of a public document may be evidenced by:
a.) An official publication thereof; or
b.) By a copy of the document attested by the officer having legal custody of the
record or by the attestation of his deputy
The attestation must state in substance, that the copy is a correct copy of the original, or
a specific part thereof, as the case may be. The case attestation must be under the official seal of
the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal
of such court. (Sec. 25, Rule 132, Rules of Court)
In the case, there was no such attestation.
Even if such documentary evidence submitted by the PNP officers would be taken as a
private document. It was uncertified.
Section 20, Rule 132 of the Revised Rules of Court provides that "before any private
document offered as authentic is received in evidence, its due execution and authenticity must be
proved either:
(a) by anyone who saw the document executed or written; or
(b) by evidence of the genuineness of the signature or handwriting of the maker.
Thus, prior to the admission in evidence of a private writing, the identity and authenticity
of the document sought to be presented must first be reasonably established. Where there is no
proof as to the authenticity of the executor's signature appearing in a private document, such
private document should be excluded (Paz v. Santiago, 47 Phil 334 [1925]).
Their due and valid execution and their genuineness and authenticity must first be
established, either by the testimony of any one who saw the writing executed or by evidence of
the genuineness of the handwriting of the maker hereof.
It is elementary that this Court cannot rightly appreciate firsthand the genuineness of an
unverified and unidentified document; much less, accord it evidentiary value (People v.
Sumalpong, 284 SCRA 464 [1998]). In People v. Gamiao (240 SCRA 254 [1995]), we declared,
"[p]arenthetically, appellant failed to present in evidence the originals or the xerox copies of the
documents hereinbefore discussed. The requirements for the admission of such secondary
evidence in court were not satisfied. The Rules of Court provide that private documents require
proof of their due execution and authentication before they can be received in evidence. When
there is no such proof, the substitutionary documents may be excluded."
Moreover, the documents submitted are mere photocopies of the originals. Thus, they are
secondary evidence and as such are not admissible unless there is ample proof of the loss of the
originals (Section 3, Rule 130, Revised Rules of Court). However, the loss of the originals have
not been proved by the prosecution, neither have they shown that the original is a public record
in the custody of a public office or is recorded in a public office, nor that the same is in the
custody or under the control of petitioners.
The due execution and authenticity of the documentary evidence presented not having
been proved, and since these are mere photocopies, the loss of the originals of which was not
previously established, the same are clearly inadmissible in evidence. (Ong vs People of the
Philippines, G.R. No. 140904. October 9, 2000)
Hence, the prosecution cannot rely upon this document for any purpose much less to
prove that they have authorization from the PDEA.

III.
As defined in Article 1 (ii) of RA 9165 Selling is any act of giving away any dangerous
drug and/or controlled precursor and essential chemical whether for money or any other
consideration.
In the instant case, the information filed against Mr. Lucero is the selling of illegal drugs.
The prosecution alleged that they knocked on the door purportedly to buy shabu and that the
accused received the money and handed shabu to the poseur buyer. However, People vs.
Macatingag, 576 SCRA 354, prescribed the requirements for the successful prosecution of the
crime of illegal sale of dangerous drugs, as follows: The elements necessary for the prosecution
of illegal sale of drugs are (1) the identity of the buyer and the seller, the object, and
consideration; and (2) the delivery of the thing sold and the payment therefor. What is material
to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale
actually took place, coupled with the presentation in court of evidence of corpus delicti.
Furthermore, the prosecutions did not positively established the narcotics involved. In the
case of People v. Simbahon , 449 Phil. 74, 83 (2003); Corino v. People , G.R. No. 178757,
March 13, 2009.the Supreme court ruled that the narcotic substance itself constitutes the corpus
delicti of the offense and the fact of its existence is vital to sustain a judgment of conviction
beyond reasonable doubt. Also, in Malillin v. People , G.R. No. 172953, April 30, 2008, 553
SCRA 619, 632. It was held that the identity of the narcotic substance must therefore be
established beyond reasonable doubt. In PEOPLE OF THE PHILIPPINES,Appellee, v. WILSON
SUAN y JOLONGON, Appellant. G.R. No. 184546 : February 22, 2010, the SC was compelled
to acquit appellant in this case because the prosecution miserably failed to establish the identity
of the substance allegedly seized from him. In addition, we find that there was a break in the
chain of custody thereby casting doubt on the integrity and evidentiary value of the substance
allegedly seized from the appellant.
The defense notes that the prosecution fell short in proving that the actual sale took place.
Neither was the evidence of corpus delicti presented in court.
To repeat, the existence of dangerous drugs is a condition sine qua non for conviction for
the illegal sale and possession of dangerous drugs, it being the very corpus delicti of the crime.

IV.

A buy-bust operation is a form of entrapment, which in recent years has been accepted as
valid and effective mode of arresting violators of the Dangerous Drugs Law. People v. Agulay,
G.R. No. 181747, September 26, 2008,566 SCRA 571, 594. It has been proven to be an effective
way of unveiling the identities of drug dealers and of luring them out of obscurity. People v.
Concepcion, G.R. No. 178876, June 27, 2008, 556 SCRA 421, 439. The nature of a buy-bust
operation necessitates a stringent application of the procedural safeguards specificcaly crafted by
Congress in RA 9165 to counter potential police abuses. People vs Joel Ancheta, GR 197371, 13
June 2012.
Section 21 of Republic Act No. 9165 delineates the mandatory procedural
safeguards that are applicable in cases of buy-bust operations and one of which is
enunciated as follows:
SECTION 21. Custody and Disposition of Confiscated, Seized and/or
Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled
Precursors and Essential Chemicals, Instruments/Paraphernalia and/or
Laboratory Equipment. x x x:
(a) The apprehending officer/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/s 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: Provided, that the physical inventory and photograph
shall be conducted at the place where the search warrant is served; or
at the nearest police station or at the nearest office of the apprehending
officer/team, whichever is practicable, in case of warrantless seizures;
Provided, further, that non-compliance with these requirements under
justifiable grounds, as long as the integrity and the evidentiary value of
the seized items are properly preserved by the apprehending
officer/team, shall not render void and invalid such seizures of and
custody over said items.
In People v. Coreche, 596 SCRA 350, the Supreme Court explained that the
concern with narrowing the window of opportunity for tampering with evidence found
legislative expression in Section 21 (1) of RA 9165 on the inventory of seized dangerous
drugs and paraphernalia by putting in place a three-tiered requirement on the time,
witnesses, and proof of inventory by imposing on the apprehending team having initial
custody and control of the drugs the duty to immediately after seizure and confiscation,
physically inventory and photograph the same in the presence of the accused or the
person/s 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.
The instant case originates from a buy-bust operation, which, as provided above
by law and jurisprudence required the conduct of physical inventory and photograph
immediately after seizure and confiscation, which must be done in the presence of the
aforementioned third party representatives/witnesses.
In case of People vs Umipang, G.R. No. 190321, the court pronounced that Indeed, the
absence of these representatives during the physical inventory and the marking of the seized
items does not per se render the confiscated items inadmissible in evidence. However, we take
note that, in this case, the SAID-SOTF did not even attempt to contact the barangay chairperson
or any member of the barangay council. There is no indication that they contacted other elected
public officials. Neither do the records show whether the police officers tried to get in touch with
any DOJ representative. Nor does the SAID-SOTF adduce any justifiable reason for failing to do
so especially considering that it had sufficient time from the moment it received information
about the activities of the accused until the time of his arrest.
Thus, we find that there was no genuine and sufficient effort on the part of the
apprehending police officers to look for the said representatives pursuant to Section 21(1) of
R.A. 9165. A sheer statement that representatives were unavailable without so much as an
explanation on whether serious attempts were employed to look for other representatives, given
the circumstances is to be regarded as a flimsy excuse. We stress that it is the prosecution who
has the positive duty to establish that earnest efforts were employed in contacting the
representatives enumerated under Section 21(1) of R.A. 9165, People v. Garcia, 580 SCRA 259
or that there was a justifiable ground for failing to do so. People v. De la Cruz G.R. No. 177222,
29 October 2008, 570 SCRA 273.
The prosecution, however, evidently failed to present any evidence showing
compliance of this requirement. No physical inventory and photograph to be conducted in
the presence of third party representatives were made.
The prosecution only requested three barangay officials to affix their signatures in their
alleged PNP drug operation document. This falls short of the requirement set by the law that the
inventory and photographing of seized items must be conducted in the presence of a
representative from the media, from the Department of Justice (DOJ), and from any elected
public official. They even failed to show genuine and sufficient effort to seek such third-party
representatives presence and adduce any justifiable reasons for failing to do so.
In People v. Ulama, G.R. No. 186530, 14 December 2011 Supreme court posit, minor
deviations from the procedures under R.A. 9165 would not automatically exonerate an accused
from the crimes of which he or she was convicted. This is especially true when the lapses in
procedure were recognized and explained in terms of justifiable grounds (People v. Martin G.R.
No. 193234, 19 October 2011). Supreme court also says that there must also be a showing that
the police officers intended to comply with the procedure but were thwarted by some justifiable
consideration/reason, In the case of People v. Martin G.R. No. 193234, 19 October 2011.
However, when there is gross disregard of the procedural safeguards prescribed in the
substantive law (R.A. 9165), serious uncertainty is generated about the identity of the seized
items that the prosecution presented in evidence. People v. Garcia 580 SCRA 259 This
uncertainty cannot be remedied by simply invoking the presumption of regularity in the
performance of official duties, for a gross, systematic, or deliberate disregard of the procedural
safeguards effectively produces an irregularity in the performance of official duties. As a result,
the prosecution is deemed to have failed to fully establish the elements of the crimes charged,
creating reasonable doubt on the criminal liability of the accused.
For the arresting officers failure to adduce justifiable grounds, we are led to conclude
from the totality of the procedural lapses committed in this case that the arresting officers
deliberately disregarded the legal safeguards under R.A. 9165. These lapses effectively produced
serious doubts on the integrity and identity of the corpus delicti, especially in the face of
allegations of frame-up. Thus, for the foregoing reasons, we must resolve the doubt in favor of
accused-appellant, as every fact necessary to constitute the crime must be established by proof
beyond reasonable doubt. People v. De la Cruz G.R. No. 177222, 29 October 2008, 570 SCRA
273.
To repeat, noncompliance with the required procedure will not necessarily result in the
acquittal of the accused if: (1) the noncompliance is on justifiable grounds; and (2) the integrity
and the evidentiary value of the seized items are properly preserved by the apprehending team.
People v. De la Cruz, G.R. No. 177222, 29 October 2008, 570 SCRA 273.
Although, the police officers enjoys the presumption of regularity in the
performance of their official duty it was held in People v. Sanchez, G.R. No.
175832, October 15, 2008, 569 SCRA 194, 207 that

While the Court is mindful that the law enforcers enjoy the presumption of
regularity in the performance of their duties, this presumption cannot prevail over
the constitutional right of the accused to be presumed innocent and it cannot, by
itself constitute proof of guilt beyond reasonable doubt. The presumption of
regularity in the performance of official duty cannot be used as basis for affirming
accused-appellant's conviction because "First, the presumption is precisely just
that - a mere presumption. Once challenged by evidence, as in this case, xxx [it]
cannot be regarded as binding truth. Second, the presumption of regularity in the
performance of official functions cannot preponderate over the presumption of
innocence that prevails if not overthrown by proof beyond reasonable doubt." The
presumption also cannot prevail over positive averments concerning violations of
the constitutional rights of the accused. In short, the presumption of regularity in
the performance of official duty cannot by itself overcome the presumption of
innocence nor constitute proof beyond reasonable doubt.

In sum, to determine whether there was a valid entrapment or whether proper procedures
were undertaken in effecting the buy-bust operation, it is incumbent upon the courts to make sure
that the details of the operation are clearly and adequately established through relevant, material
and competent evidence. The courts cannot merely rely on, but must apply with studied restraint,
the presumption of regularity in the performance of official duty by law enforcement agents.
Courts are duty-bound to exercise extra vigilance in trying drug cases and should not allow
themselves to be used as instruments of abuse and injustice lest innocent persons are made to
suffer the unusually severe penalties for drug offenses. Valdez v. People, G.R.No.
170180, November 23, 2007, 538 SCRA 611, 633.

In the case of People v. De Guzman, GR 151205 , SC stressed that the
objective test in buy-bust operation demands that the details of the purported
transaction must be clearly and adequately shown. This must start from the initial
contact between the poseur-buyer and the pusher, the offer for purchase, the
promise or payment of the consideration until the consummation of the sale by the
delivery of the illegal drug subject of the sale. The manner by which the initial
contact was made, whether or not through an informant, the offer to purchase the
drug, the payment of the buy-bust money, and the delivery of the illegal drug,
whether to the informant alone or the police officer, must be the subject of strict
scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to
commit an offense.

All told, we find merit in the appellant's claim that the prosecution failed to discharge its
burden of proving her guilt beyond reasonable doubt, due to the unreliability of the testimonies
of the prosecution witnesses and substantial gaps in the chain of custody, raising reasonable
doubt on the authenticity of the corpus delicti. People vs Capuno G.R. No. 185715

Jurisprudence abounds with cases where deviation from the standard procedure in an
anti-narcotics operation produces doubts as to the identity and origin of the drug which
inevitably results to the acquittal of the accused. In People v. Mapa , law G.R. No. 91014, March
31, 1993, 220 SCRA 670, 679. the court also ruled that the failure to prove that the specimen of
marijuana examined by the forensic chemist was that seized from the accused was fatal to the
prosecution's case. The same holds true in People v. Casimiro cral432 Phil. 966, 979 (2002 and
in Zarraga v. People G.R. No. 162064, March 14, 2006, 484 SCRA 639, 647.where the
appellant was acquitted for failure of the prosecution to establish the identity of the prohibited
drug which constitutes the corpus delicti . Recently in Catuiran v. People , law G.R. No. 175647,
May 8, 2009, 587 SCRA 567.we acquitted the petitioner for failure of the prosecution witnesses
to observe the standard procedure regarding the authentication of the evidence.


V.


Article III, Sec. 14 of the 1987 Constitution provides that:

1. No person shall be held to answer for a criminal offense without due process of law.

2. In all criminal prosecutions, the accused shall be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the
nature and cause of the accusation against him, to have a speedy, impartial, and public
trial, to meet the witnesses face to face, and to have compulsory process to secure the
attendance of witnesses and the production of evidence in his behalf. However, after
arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that
he has been duly notified and his failure to appear is unjustifiable.
The prosecution did not state that they informed Mr. Lucero of his Miranda rights upon
apprehension. As the Supreme Court held in Ong vs People of the Philippines, G. R. No. 197788,
February 29, 2012:

This Court has held that at the time a person is arrested, it shall be the duty of the
arresting officer to inform the latter of the reason for the arrest and must show that person the
warrant of arrest, if any. Persons shall be informed of their constitutional rights to remain silent
and to counsel, and that any statement they might make could be used against them.



VI.
Article 3, section 12 of the 1987 Constitution of the Philippines, provides that :
(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.
xxxxxxxxxxxxxxxxxxxxx
(3)Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
Obviously the appellant was the victim of a clever ruse to make him sign these alleged
receipts which in effect are extra-judicial confessions of the commission of the offense. Indeed it
is unusual for appellant to be made to sign receipts for what were taken from him. It is the police
officers who confiscated the same who should have signed such receipts. No doubt this is a
violation of the constitutional right of the appellant to remain silent whereby he was made to
admit the commission of the offense without informing him of his right. Such a confession
obtained in violation of the Constitution is inadmissible in evidence.
The Inventory Receipt signed by appellant is thus not only inadmissible for being violative
of appellants custodial right to remain silent; it is also an indicium of the irregularity in the
manner by which the raiding team conducted the search of appellants residence.
Assuming arguendo that appellant did waive her right to counsel, such waiver must be
voluntary, knowing and intelligent. To insure that a waiver is voluntary and intelligent, the
Constitution People vs. Ramos, 186 SCRA 184, 191 (1990) requires that for the right to counsel
to be waived, the waiver must be in writing and in the presence of the counsel of the accused.
Art. III, Section 12(1).There is no such written waiver in this case, much less was any waiver
made in the presence of the counsel since there was no counsel at the time appellant signed the
receipt. Clearly, appellant affixed her signature in the inventory receipt without the assistance of
counsel which is a violation of her right under the Constitution.
In all criminal cases, it is appellants constitutional right to be presumed innocent until the
contrary is proved beyond reasonable doubt. Thus in People vs. Del Norte, G.R. No. 149462,
March 29, 2004.we said:
We detest drug addiction in our society. However, we have the duty to protect appellant
where the evidence presented shows insufficient factual nexus of her participation in the
commission of the offense charged. In People vs. Laxa, we held:
The governments drive against illegal drugs deserves everybodys support. But it cannot be
pursued by ignoble means which are violative of constitutional rights. It is precisely when the
governments purposes are beneficent that we should be most on our guard to protect these
rights. As Justice Brandeis warned long ago, the greatest dangers to liberty lurk in the insidious
encroachment by men of zeal, well meaning without understanding.
In sum, the bottom line is that there is gross insufficiency to support a verdict of guilt of the
accused beyond reasonable doubt.


P R A Y E R

WHEREFORE, premises considered , it is respectfully prayed of the Honorable Court to
dismiss the above-entitled action for insufficiency of evidence against the accused.

Respectfully submitted.

Malaybalay City, Bukidnon. February 13, 2014.


CABUNOC, PEARL JOAN
DAYPUYAT, SHYLLA FE
ELICA, MA. ESSA
ESTACION, KARL MAXIMO
GA, MARIANNE AIZA
LACIO, DINO
MELENDEZ, BERCHMAN
TUYUGON, JULITO
Counsels for the Accused








The Branch Clerk of Court
RTC-Bukidnon, Branch 10
Malaybalay City, Bukidnon


Greetings!

Please submit this Demurrer to Evidence for the consideration of the Honorable Court
promptly upon receipt hereof.



Cabunoc, Pearl Joan
Daypuyat, Shylla Fe
Elica, Ma. Essa
Estacion, Karl Maximo
Ga, Marianne Aiza
Lacio, Dino
Melendez, Berchman
Tuyugon, Julito


cc: FISCAL CLAVER ARINO
Assistant Provincial Prosecutor
OFFICE OF THE PROVINCIAL PROSECUTOR
Malaybalay City, Bukidnon