You are on page 1of 11

Republic of the Philippines

REGIONAL TRIAL COURT


--------------- Judicial Region
Branch --
--------------------------(Location)

PEOPLE OF THE PHILIPPINES,


Complainant

-versus- CRIM. CASE NO. -------------------


For:
-------------------------------------------, “Violation of R.A. 9165”
Accused. Section 11
X--------------------------X

OMNIBUS MOTION
(1) TO QUASH THE SEARCH WARRANT AND TO EXCLUDE ILLEGALLY
SEIZED EVIDENCE AND (2) TO QUASH THE INFORMATION

The Accused, through the undersigned Law Firm, and unto this
Honorable Court, most respectfully avers that:

ARGUMENTS
IN SUPPORT OF MOTION TO QUASH THE SEARCH WARRANT
AND TO EXCLUDE ILLEGALLY

1. On ---------------------, a search and seizure order was issued by Judge


--------------------, a material portion of which reads:

“x x x that there is probable cause to believe that a


Violation of R.A 9165, otherwise known as “THE
COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002” has
been and is being committed, and there are good and
sufficient reasons to believe that ----------------------, a resident of
---------------------------- has in his possession and control of the
following items:

a. Methamphetamine Hydrochloride; and


b. Drug Paraphernalia

You are hereby ordered to make an immediate search


at any time of the day or night but preferably at daytime at
the afore-stated residential place of -------------------- and its
premises, and to forthwith seize and take possession of the
above-described items. X x x”;

1|Page
2. The applicants for the search and seizure are members of the
Philippine National Police – ---------------------------, the same operating unit
who implemented the search and seizure order. Thus, it is highly
improbable for the applicants of the search warrant not to know the
exact address of the accused that should be reflected in the search
warrant.

3. Accused maintains that the aforementioned search warrant is in the


nature of general warrants and that accordingly, the seizures effected
upon the authority thereof are null and void. In this connection, the
Constitution provides:

The right of the people to be secure in their persons, houses,


papers, and effects against unreasonable searches and
seizures shall not be violated, and no warrants shall issue but
upon probable cause, to be determined 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. Rule 125 of the Rules of Court, Section 4 provides for the requisites for
issuing a search warrant, to wit: (1) it must be based upon a probable
cause; (2) probable cause must be determined by the issuing judge
personally; (3) the judge must have personally examined, in the form
of searching questions and answers, the applicant and his witnesses
and taken down their written depositions; (4) the search warrant
must particularly describe or identify the property to be seized as far
as the circumstances will ordinarily allow; (5) the warrant issued must
particularly describe the place to be searched and the persons or
things to be seized; (6) it shall issue only for one specific purpose; and
(7) it must not have been issued more than 10 days prior to the search
made pursuant thereto.

The law states that a warrant shall describe with particularity the
place to be searched and the things to be seized. A general
warrant is a search warrant which vaguely describes and does not
particularize the personal properties to be seized. The warrant is not
valid since it violates the constitutional and law provisions specifically
the fifth requisite of a valid search warrant.

For the validity of a search warrant, the Constitution requires that


there be a particular description of “the place to be searched and the
persons or things to be seized”. The rule is that a description of a
place to be searched is sufficient if the officer with the warrant can,
with reasonable effort, ascertain and identify the place intended and
2|Page
distinguish it from other places in the community. Any designation or
description known to the locality that leads the officer unerringly to it
satisfies the constitutional requirement.

5. In the instant case, the place of search was indicated to be at


-------------------------------------- without describing specifically the street or
other designation that will pinpoint the specific location of the place
to be searched. This is contrary to the rule that the police officer must
have personal knowledge as to the place to be searched.

6. To uphold the validity of the search warrant in question would be to


wipe out completely one of the most fundamental rights guaranteed
in our Constitution, for it would place the sanctity of the domicile and
the privacy of communication and correspondence at the mercy of
the whims caprice or passion of peace officers. This is precisely the
evil sought to be remedied by the constitutional provision above
quoted — to outlaw the so-called general warrants.

7. Moreover, the implementation of the search warrant was not proper,


the following are some of the deviations of the operating team:

a. The seizing officer did not sign the Receipt for Property Seized but
instead allowed the persons present at the searched premises to
sign the same;

b. Perusal of the Receipt for Property Seized would reveal that there
were no markings placed on the items allegedly confiscated from
the accused. As a result thereof, the integrity of seized items
particularly the subject/object of this case is highly doubtful. Sec. 21
of RA 9165 proscribes that the items confiscated should be
properly marked and inventoried. In this case, it is clear that there
were no proper markings and inventory that was conducted by the
operating team;

c. The searching team forced and induced the accused to sign a


Certification to the effect that the search was done in orderly and
lawful manner and that he was present at all time during the
conduct of the search;

d. The police officers did not inform accused of his Miranda Rights
and he was not accompanied by his counsel when the searching
team forced and induced him to sign the said certification;

e. In the case of People of the Philippines vs. Castillo, G.R. No. 153254,
September 30, 2004, the Supreme Court enunciated:

3|Page
While PO3 Petallar testified that appellant was read her
constitutional right, it was not clearly shown that she was
informed of her right not to sign the receipt and that it can
be used as an evidence against her. If appellant was indeed
informed of her constitutional right, it is unusual for her to
sign the receipt acknowledging ownership of the seized
items without the assistance of counsel considering that she
wanted to get a lawyer. In People vs. Go, we found the
inventory receipt signed by appellant inadmissible for being
violative of her custodial right to remain silent, thus:

After the inventory had been prepared, PO2 Abulencia


presented it to appellant for his signature without any
showing that appellant was informed of his right not to sign
such receipt and to the assistance of counsel. Neither was he
warned that the same could be used as evidence against
him. Faced with similar circumstances, this Court in People v.
Gesmundo stated:

It is true that the police were able to get an admission


from the accused-appellant that marijuana was found in her
possession but said admission embodied in a document
entitled PAGPAPATUNAY previously prepared by the police,
is inadmissible in evidence against the accused-appellant for
having been obtained in violation of her rights as a person
under custodial investigation for the commission of an
offense. The records show that the accused-appellant was
not informed of her right not to sign the document; neither
was she informed of her right to the assistance of counsel
and the fact that the document may be used as evidence
against her.

In People vs. Policarpio, this Court held that such practice


of inducing suspects to sign receipts for property allegedly
confiscated from their possession is unusual and violative of
the constitutional right to remain silent, viz:

What the records show is that appellant was informed of


his constitutional right to be silent and that he may refuse to
give a statement which may be used against him, that is why
he refused to give a written statement unless it is made in
the presence of his lawyer as shown by the paper he signed
to this effect. However, he was made to acknowledge that
the six (6) small plastic bags of dried marijuana leaves were
confiscated from him by signing a receipt and to sign a

4|Page
receipt for the P20.00 bill as purchase price of the dried
marijuana leaves he sold to Pat. Mangila.

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 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. 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, 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
5|Page
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.

f. There was no Return of Search Warrant and list/inventory of seized


items that was filed with the Court which issued the subject search
warrant. In addition thereto, there was no Order from the court
which issued the search warrant for the PNP Gattaran to turn-over
the confiscated items with the PNP Crime Laboratory. This is
contrary to the ruling of the Supreme Court in the case of Lopez vs.
People of the Philippines, G.R. no. 172953, April 30, 2008 which
provides:

Likewise, Esternons failure to deliver the seized items


to the court demonstrates a departure from the directive
in the search warrant that the items seized be
immediately delivered to the trial court with a true and
verified inventory of the same, as required by Rule 126,
Section 12of the Rules of Court. People v. Go
characterized this requirement as mandatory in order to
preclude the substitution of or tampering with said items
by interested parties. Thus, as a reasonable safeguard,
People vs. Del Castillo declared that the approval by the
court which issued the search warrant is necessary before
police officers can retain the property seized and without
it, they would have no authority to retain possession
thereof and more so to deliver the same to another
agency. Mere tolerance by the trial court of a contrary
practice does not make the practice right because it is
violative of the mandatory requirements of the law and it
thereby defeats the very purpose for the enactment.

g. Failure to comply with the rules shall put the integrity of the
confiscated items as doubtful which is tantamount to
unreasonable search and seizure.

h. Correspondingly, all items allegedly seized from the accused


should be excluded as evidence for being a “fruits of a poisonous
tree”.

8. Time again to remind PDEA (Law Enforcers) that enforcement is not


at all seizure of illegal drugs pursuant to an arrest of transgressors of
R.A. 9165 as amended. It goes beyond, such as compliance of
6|Page
procedure under the same law itself and under the rules of court on
arrest, search and seizure, and the judicial legislations which
interpreted these substantive and procedural laws otherwise, the
reminders of the Supreme Court of demoralization in the ranks of law
enforcers and the embodiments of users, possessors, and pushers, as
pronounced is inevitable.

The prevailing impressions that the law enforcers cannot understand


the complexities of the law and resort to ignoble means is uncivil,
worst, it is anarchy, a real threat to our democracy where the rule of
law always prevails.

ARGUMENTS
IN SUPPORT OF MOTION TO QUASH SEARCH WARRANT

9. Accused is charged with violation of Sec. 11 of RA 9165, the charge is


as follows:

“That on or about October 10, 2015 in the municipality of Gattaran, Province of


Cagayan, and within the jurisdiction of this Honorable Court, the above-named
accused, without any authority thereof, did then and there willfully, unlawfully
and feloniously have in his possession and under his control and custody four (4)
pieces of plastic sachet with traces of white crystalline substance, which gave
POSITIVE result to the tests for the presence of Methamphetamine
Hydrochloride, a dangerous drug, commonly known as “Shabu”, said accused
knowingly fully well and aware that it is prohibited for any person to possess any
dangerous drug regardless of the quantity and purity thereof, unless authorized
by law.”

10. In Antone vs. Beronilla, G.R. no. 183824, December 8, 2010, we define
a motion to quash an Information as ˗

The mode by which an accused assails the validity of a criminal


complaint or Information filed against him for insufficiency on its face
in point of law, or for defects which are apparent in the face of the
Information.

This motion is a hypothetical admission of the facts alleged in the


Information, for which reason, the court cannot consider allegations
contrary to those appearing on the face of the information.

As further elucidated in Cruz, Jr. v. Court of Appeals:

7|Page
It is axiomatic that a complaint or information must state every
single fact necessary to constitute the offense charged;
otherwise, a motion to dismiss/quash on the ground that it
charges no offense may be properly sustained. The fundamental
test in considering a motion to quash on this ground is whether
the facts alleged, if hypothetically admitted, will establish the
essential elements of the offense as defined in the law.

11. For illegal possession of regulated or prohibited drugs, the


prosecution must establish the following elements: (1) the accused is
in possession of an item or object, which is identified to be a
prohibited or regulated drug; (2) such possession is not authorized by
law; and (3) the accused freely and consciously possessed the drug.

12. In this instant case, the object is the (4) pieces of plastic sachet with
traces of white crystalline substance, which is not a violation under RA
9165. The crime punished under Sec. 11 of RA 9165 is the possession of
methamphetamine hydrochloride and not possession of plastic sachet
with traces of methamphetamine hydrochloride.

13. In possession of dangerous drugs, there must be an object which is


the dangerous drug.

14. Section 11 of R.A. 9165 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:
(1) 10 grams or more of opium;
(2) 10 grams or more of morphine;
(3) 10 grams or more of heroin;
(4) 10 grams or more of cocaine or cocaine hydrochloride;
(5) 50 grams or more of methamphetamine hydrochloride or
"shabu";
(6) 10 grams or more of marijuana resin or marijuana resin oil;
(7) 500 grams or more of marijuana; and
(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.

Otherwise, if the quantity involved is less than the foregoing


quantities, the penalties shall be graduated as follows:

8|Page
(1) Life imprisonment and a fine ranging from Four hundred
thousand pesos (P400,000.00) to Five hundred thousand pesos
(P500,000.00), if the quantity of methamphetamine hydrochloride or
"shabu" is ten (10) grams or more but less than fifty (50) grams;
(2) Imprisonment of twenty (20) years and one (1) day to life
imprisonment and a fine ranging from Four hundred thousand pesos
(P400,000.00) to Five hundred thousand pesos (P500,000.00), if the
quantities of dangerous drugs are five (5) grams or more but less than ten
(10) 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 three hundred (300) grams or more but less than five (hundred) 500)
grams of marijuana; and
(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.

15. From the above-stated provision, it is clear that for a person to be


convicted for violation of Sec. 11 of R.A. 9165, he should have
possessed a dangerous drug in the quantity prescribed by law.
However, close scrutiny of the information would reveal that the
quantity or the weight of the shabu was not indicated;

16. Assuming arguendo that this Honorable Courts finds accused guilty of
the offense charged, he could not be penalized of the appropriate
penalty under RA 9165 because of the fact that there was no quantity
or weight reflected in the information. There would be no logical basis
for the court to impose any penalty;

17. The failure of the prosecution to indicate the quantity of the alleged
shabu seized from the accused in the information is a fatal defect
considering that in all prosecutions for violation of drug laws, the
existence of dangerous drug which is the subject of the offense is a
condition sine qua non for the conviction since the same is the very
corpus delicti of the crime.

9|Page
PRAYER

WHEREFORE, it is most respectfully prayed unto this Honorable Court to


quash the subject Search warrant and other the exclusion of the illegally seized
items and to quash the Information against ----------------------------- on the ground
that the facts alleged do not constitute the offense charged.

Such other reliefs which are just and equitable under the premises are
likewise prayed for.

-------------------------------(location). ------------------, 2015.

(Counsels name and other)

NOTICE OF HEARING

TO THE BRANCH CLERK OF COURT


RTC – Branch ---
-------------------(location)

Please submit the foregoing motion for the consideration and approval
of the Honorable Court preferably on ____________ or at anytime convenient
to the Court.
----------------------------------

NOTICE

OFFICE OF THE CITY/PROVINCIAL PROSECUTOR


Hall of Justice
-----------------------(location)

Please be advised that the foregoing was set for the consideration and
approval of the Honorable Court preferably on ______________ or at anytime
convenient to the Court.

-----------------------------------

PROOF OF SERVICE

TO THE BRANCH CLERK OF COURT


RTC – Branch ----
---------------------------

OFFICE OF THE CITY/PROVINCIAL PROSECUTOR


10 | P a g e
Hall of Justice
---------------------------

------------------------------------

11 | P a g e