PREDICTIVE MEMORANDUM Midterm Exam on Legal Writing I

By:

Cariaga, Denzel Edward V. Diaz, Bernadeth B. Lim, Francis Albert T. Mendoza, Criselda Buhay P.

Legal Writing Set A First Semester, 2013 2014 Thu 05:30 07:30

Submitted to:

Atty. Mary Jude Cantorias Arellano University School of Law

MEMORANDUM

To: From:

Atty. Mary Jude Cantorias Cariaga, Denzel Edward V. Diaz, Bernadeth B. Lim, Francis Albert T. Mendoza, Criselda Buhay P.

Date: Re:

August 08, 2013 Criminal possession of illegal drug/substance

QUESTION PRESENTED

Under Republic Act no. 9165, also known as the Dangerous Act of 2002, whether an unusable cocaine residue (that has not been quantified) found on the side of a crack pipe in defendants possession support a charge of criminal possession of controlled substance in the seventh degree?

BRIEF ANSWER

Probably yes. In illegal possession of dangerous drugs, the elements are: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug.

FACTS

In the course of an arrest for assault, a crack pipe was recovered from the defendants possession. The police officer stated that he didnt see any cocaine in the pipe, though he could smell it. The police department laboratory analyzed their contents and reported cocaine residue on the sides of the pipe, but never put a numerical weight to the substance. The defendant was then arraigned on information charging him with criminal possession of an illegal drug/substance in the (Dangerous Drugs Act) and assault (Revised Penal Code).

The defendant moved to suppress the controlled substance and to dismiss the information. The court granted the motion to dismiss the assault count, but denied the remainder of the motion.

The case proceeded to trial. At trial, the chemist for the police department stated that the amount of crack-cocaine, a controlled substance was residue and was n ot usable. At the end of the trial, the defendant was convicted of criminal possession of a controlled substance.

On appeal, the defendant moved to set aside the verdict on the ground that the People failed to satisfy every element of the criminal possession of a controlled substance. Defendant argued that the possession of a mere trace of cocaine could not constitute a crime. Defendant contends that the Legislature meant to punish only possession of usable drugs, and that possession of minute amount does not threaten the societal interests protected by the crime of unlawful possession.

DISCUSSION

Defendant-appellant was arrested for assault. However, in the course of an arrest, a crack pipe was recovered from the defendants possession. The police officer stated that he didnt see any cocaine in the pipe, though he could smell it. The police department laboratory analyzed their contents and reported cocaine residue on the sides of the pipe, but never put a numerical weight to the substance. The trial pursued and the chemist testified that the amount of crack-cocaine, a controlled substance, was a residue and was not usable. At the end of the trial, the defendant-appellant was convicted criminal possession of a controlled substance. The defendant appealed to set aside the verdict on the ground that the People failed to satisfy every element of the criminal possession of a controlled substance. Issue was raised whether unusable cocaine residue found on the crack pipe constitutes a charge of criminal possession of a controlled substance?

Section 11 paragraph 3 of R.A. 9165 states that: Otherwise, if the quantity involved is less than the foregoing quantities, the penalties shall be graduated as follows: Xxx Xxx 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.

The law does not have a requirement that the defendant should have in possession a particular amount of controlled substance. What is required under the law is that quantity be sufficient to permit proper identification as a controlled substance. Simply put, the amount is immaterial. Hence, the defense that the defendant is arguing that it cannot be considered a controlled substance because the amount possessed is so minute that it is unusable could not be given proper merit. Moreover, there is no requirement under the law that the amount of the controlled substance be usable. The legislative intent of punishing the act is not limited to punishing possession of drugs in amounts likely to be used. Moreover, applying the rule in Statutory Construction which states that statutes should be construed in the light of the object to be achieved and the evil or mischief to be suppressed, and they should be given such construction as will advance the object, suppress the mischief, and secure the benefits intended.

The defendant further argues that since the quantity cannot be seen, hence, the People failed to prove beyond a reasonable doubt that the defendant knowingly possessed the controlled substance. In this case, principle of circumstantial evidence

may be applied. A rule is settled that knowledge may be proven circumstantially and that, generally, mere possession is enough to make an inference that possessors know what they possess, especially when it is on their person. Since the defendant was found with a crack pipe with the substance in it, knowledge has been circumstantially proven. Needless to say, the crack pipe was tested positive of cocaine.

In the case of People vs. Lorenzo, 619 SCRA 389 (2010), the Court ruled that the identity of the prohibited drug must be established with moral certainty. In both illegal sale and illegal possession of prohibited drugs, conviction cannot be sustained if there is a persistent doubt on the identity of the drug. The identity of the prohibited drug must be established with moral certainty. Apart from showing that the elements of possession are present, the fact that the substance illegally possessed in the first place is the same substance offered in court as exhibit must likewise be established with the same degree of certitude as that needed to sustain a guilty verdict. In the present case, the crack pipe was tested positive to be having a controlled substance.

Moreover, in illegal possession of dangerous drugs, the elements are: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug. Similarly, in this case, the evidence of the corpus delicti must be established beyond reasonable doubt. Applying said court decision in People vs. Lorenzo, the defendant-appellant is a) in possession of a prohibited drug; b) R.A. 9165 prohibits and penalizes possession of prohibited drugs; and c) the accused is freely

and it can be inferred that he consciously possesses such drug. Based on the evidence submitted, the above elements were duly established in the present case.

In the case of Sy vs. People, 655 SCRA 395(2011), the court ruled that mere possession of a regulated drug per se constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused absent a satisfactory explanation of such possessionthe onus probandi (burden of proof) is shifted to the accused, to explain the absence of knowledge or animus possidendi (physical control).

In both illegal sale and illegal possession of prohibited drugs, conviction cannot be sustained if there is a persistent doubt on the identity of the drug. The identity of the prohibited drug must be established with moral certainty. Apart from showing that the elements of possession or sale are present, the fact that the substance illegally possessed and sold in the first place is the same substance offered in court as exhibit must likewise be established with the same degree of certitude as that needed to sustain a guilty verdict.

Given above discussion, the counter argument which might arise is on the admissibility of the evidence gathered and compliance of the police in the standard operating procedures.

In People v. Lim,12 this Court held: Applying Section 21 of RA 9165,

xxx any apprehending team having initial custody and control of said drugs and/or paraphernalia, should immediately after seizure and confiscation, have the same physically inventoried and photographed in the presence of the accused, if there be any, and or his representative, who shall be required to sign the copies of the inventory and be given a copy thereof. The failure of the agents to comply with such a requirement raises a doubt whether what was submitted for laboratory examination and presented in court was actually recovered from the appellants. It negates the presumption that official duties have been regularly performed by the PAOC-TF agents.

However, in the case of People vs. Pringas 513 SCRA 828 (2007), the court ruled that non-compliance by the apprehending team with Section 21 of RA 9165 is not fatal as long as there is a justifiable ground therefore, and as long as the integrity and the evidenciary value of the confiscated item are properly preserved by the apprehending team.

CONCLUSION

On these facts, the court will probably CONVICT the accused since all the elements of illegal possession of drugs have been satisfied to wit: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the said

drug. Similarly, in this case, the evidence of the corpus delicti must be established beyond doubt.

To answer the counter argument, in the case of Sy vs. People, the court ruled that mere possession of a regulated drug per se constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused absent a satisfactory explanation of such possessionthe onus probandi (burden of proof) is shifted to the accused, to explain the absence of knowledge or animus possidendi (physical control). Sans disclosure in the facts provided by the case, it is presumed that the police officers, at that time, is