LEGAL MEMORANDUM

TO: Atty. Rolly Francis C. Peoro

FROM: Francesca Isabel P. Montenegro

DATE: November 25, 2017

RE: Alleged Violation of Republic Act 9165

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. Art. III, Sec. 2. Bill of Rights

Questions Presented

1. Whether or not there was substantial information gathered by the

police to apply for a search warrant against the accused?
2. Whether or not the search warrant was validly issued by the
judge?
a. Whether or not the policemen of Santa Cruz Municipal
Police Station complied with the requirements of a valid
search.
b. Whether or not the accused violated Sec.12 of RA 9165 or
the Possession of Equipment, Instrument, Apparatus and
Other Paraphernalia for Dangerous Drugs.
c. Whether or not the confiscation of the accuseds coin purse
is valid.

(If any of the two prior issues are answered in the negative then the
succeeding issues no longer matter and the respondent or accused
cannot be held criminally liable for the Violation of R.A. 9165.)
Brief Answer

1. No, one of the requirements for the application of a search warrant

is that the complainants must be in possession of actual and
specific information of the contraband sought to be seized. In this
case the allegation of the police operatives that respondent had in
her possession an undetermined quantity of shabu does not
satisfy the Constitutional requirement of particularity of the items
to be seized.
2. No, the procedure adopted by the judge in determining probable
cause on whether an offense has been committed, by the alleged
respondent, and what particular offense was committed, fails to
satisfy the procedural requirement to overturn the Constitutionally
protected rights against unreasonable searches and seizures.
a. Although a valid search warrant is obtained, police did not
comply with the requirement that search warrant be served
only in the presence of the Barangay Chairman or any of the
Barangay Councilmen of the locality. In this case, only the
policemen conducted the search.
b. No. The improvised tooter, a paraphernalia intended for
ingesting a dangerous drug in the body, is not stated in the
inventory of property seized nor included in the policemens
affidavit of confiscated evidence. Therefore, it cannot be
presumed that the said apparatus was found in Edens
residence.
c. No. Constitution requires that a search warrant should
particularly describe the things to be seized. There is nothing
in the search warrant that includes the coin purse. Thus, it
cannot be confiscated.

Answers a., b., and c. are valid on the assumption that the application
for and the issuance of the search warrant are valid.
Facts

A search was conducted in the residence of the accused, Eden,

38 years of age, married, and living at Sitio San Miguel, Barangay
Duhat, Santa Cruz, Laguna. The said search happened on July 9,
2016 at about 2:25am upon a search warrant issued by Judge
Agripino G. Morga of the Regional Trial Court of San Pablo City
Branch 33. Three (3) pieces of heat-sealed transparent plastic and
One (1) open-end heat-sealed transparent plastic sachet were
confiscated. On the same day, at about 6:40 AM, the confiscated
evidences were transferred to the Regional Crime Laboratory Office
4-A of Calabarzon for testing. At 2:45 PM, also of the same day, the
Regional Crime Laboratory Office 4-A of Calabarzon issued a report
affirming that the tested substance contained Methamphetamine
Hydrochloride or Shabu, a dangerous drug, weighing a total of 0.23
grams. On 11 July 2016, two Criminal Cases were filed against the
accused for violation of Section 11 and Section 12 of Article II of
Republic Act No. 9165.

The accused now negates the statement of the police in their

affidavit that they entered her residence upon showing the search
warrant and after Eden gave her consent. According to her, the
policemen just entered their home without presenting the search
warrant, and directly went straight to her bedroom. The accused is
also claiming that the evidence confiscated were planted by the
Police Officers who conducted the search. The Certificate of Good
Conduct Search was not signed by Eden. Additionally, she claims
that as a result of the search, she lost some of her personals
belongings particularly her cellphone, power bank, and silver
necklace.

Discussion

1. Whether or not there was substantial information gathered by the

police to apply for a search warrant against the accused?
While the issue on sufficiency and detail of information to support an
application for a search warrant is by and large subjective, this
category of information used by the police in the current drug war of
the Duterte administration falls within that class that should be
deemed generic.

Mere allegation of two (2) police officers that respondent or anyone

for that matter possess illegal drugs opens the floodgates to abuse
and renders illusory the Bill of Rights provision against unreasonable
searches and seizures. One should bear in mind that the police in this
climate are pressed to meet quotas of drug arrests and
accomplishments.

2. Whether or not the search warrant was validly issued by the

judge?

No, we should note that the search was issued for possession alone
and not use In the same manner that it is very difficult next to
impossible to establish possession (of a very miniscule amount of
drugs) at any given time and in a specific place, so it is also very easy
to establish said amount of drugs. Here again comes into play the
propensity to abuse and sidetrack the guarantees to liberty.

Although the existence of probable cause depends on a large degree

upon the finding or opinion of the judge conducting the examination
there must be substantial basis for that determination (Del Castillo v
People, G.R. 185128, January 20, 2012).

Other than apparently the bare allegations of PO3 Reyes and PO1
Gandeza, in their Joint Sworn Statement there are no other
substantial pieces of evidence upon which to base a finding of
probable cause for the issuance of the search warrant. This kind of
procedure if allowed and verily under the prevailing conditions can
and will be subject of repetitive abuse.
Any two PO1s can just go before a judge, jointly allege that a certain
Juan dela Cruz or Maria Reyes is a known user of illegal drugs and
that she has always in her possession, or stowed somewhere in her
residence these illegal drugs and an impulsive judge, or one minded
to blindly support the drug effort just improvidently issues a search
warrant.

To emphasize, the offense here is possession, the respondent need

not test positive for drug use. And they face a prison term of 12 years
and 1 day to 20 years and a fine ranging from P300,000.00 to
P400,000.00.

It wasnt shown that the judge base his decision to issue the warrant
on substantial information that respondent had illegal drugs on her
person or within her control. The allegations were for an
undetermined amount of methamphetamine hydrochloride in her
residence. One can just tremble at the thought of how insignificant
our right to be secure in our persons, homes and effects is from state
intrusion. A Joint Sworn Statement of police officers and a judge
minded to issue a warrant on that basis.

1. Whether or not the policemen of Santa Cruz Municipal

Police Station complied with the requirements of a valid
search.

It is clearly and expressly provided for in Judge Morgas issued

search warrant that this shall be served only in the presence of
the Barangay Chairman or in his absence, any of the barangay
councilmen of the locality. However, the search was conducted
only by the policemen. This is supported both by the statement of
the accused and the policemen themselves.

2. Whether or not the accused violated Sec.12, Art. II of RA

9165 or the Possession of Equipment, Instrument, Apparatus and
Other Paraphernalia for Dangerous Drugs.
 R.A. 9165, Section 12. Possession of Equipment, Instrument,
Apparatus and Other Paraphernalia for Dangerous Drugs. The
possession of such equipment, instrument, apparatus and other
paraphernalia fit or intended for any of the purposes enumerated
in the preceding paragraph shall be prima facie evidence that the
possessor has smoked, consumed, administered to
himself/herself, injected, ingested or used a dangerous drug and
shall be presumed to have violated Section 15 of this Act.

The said Improvised Tooter was only presented in the

information charged against Eden, not in the list of evidence
confiscated from the search. The affidavit of the policemen did not
also include the Tooter as part of the properties seized. There is
no proof for this allegation.

3. Whether or not the confiscation of the accuseds coin

purpose is valid.

Section 2, Article III of the 1987 Constitution requires that a search

warrant should particularly describe the things to be seized. The
evident purpose and intent of the requirement is to limit the things
to be seized to those, and only those, particularly described in the
search warrant to leave the officers of the law with no discretion
regarding what articles they should seize, to the end that
unreasonable searches and seizures may not be made and that
abuses may not be committed (Corro v. Lising, 137 SCRA 541,
547 [1985])

There is nothing in the search warrant that particularly describes or

includes the coin purse as part of the things that can be seized by
the warrant officer. Thus, it cannot be confiscated.

Conclusion

1.) There is insufficient information to apply for a search warrant.

2.) The Search Warrant of Judge Morga was improvidently issued
thus invalid.
 a. The warrant officers violated the regularity of search and
seizures.
b. The accused cannot be charged of Sec. 12 of R.A. 9165.
c. The coin purse of the accused is an inadmissible
evidence.

Conclusions a., b., and c. are a consequence of conclusions 1) and

2).

Citations
Art. III, Sec. 2. Bill of Rights 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.

An Act instituting the Comprehensive Dangerous Drugs Act of

2002, Repealing Republic Act No. 6425, Otherwise known as
the Dangerous Drugs Act of 1972, as amended, providing funds
therefor, and for other purposes [Comprehensive Dangerous
Drugs Act of 2002], Republic Act 9165.

Del Castillo v People, G.R. 185128, January 20, 2012

Corro v Lising, G.R. No. 186004, November 26, 1985

People v. Go, G.R. No. 144639. September 12, 2003

MONTENEGRO, Francesca Isabel P.

11780940
DLSU GO2