Republic of the Philippines

12th Judicial Region

REGIONAL TRIAL COURT
BRANCH 17
Hall of Justice, Kidapawan City

PEOPLE OF THE PHILIPPINES, CRIMINAL CASE NO. 7718-2022

Plaintiff/s,

- Versus - - For -

DATU EM EM ABBAS, “VIOL. OF SEC. 5, 11, & 12 ART.

Accused. II OF RA 9165”
x-------------------------------------------------------------------------------------------------x

MOTION TO SUPPRESS EVIDENCE

WITH PRAYER TO DISMISS

COMES NOW Accused, DATU EM EM ABBAS, through the undersigned

Counsel and unto this Honorable Court, most respectfully moves to suppress
evidence allegedly seized from the Accused during the buy-bust operation and
further manifest:

1. That upon the alleged buy-bust operation, the following evidences were
seized and/or confiscated from the Accused, as follows:

1.a. One (1) medium heat-sealed transparent plastic sachet of

Methamphetamine Hydrochloride also known as “Shabu”
weighing 0.197 grams marked as PMD-1 allegedly a product of
the buy-bust operation;
1.b. One (1) big heat-sealed transparent plastic sachet of
Methamphetamine Hydrochloride also known as “Shabu”
weighing 4.173 grams marked as PMD allegedly confiscated
during the body search; and,
1.c. All allegedly confiscated drug paraphernalia which
mentioned in the Information;

All exhibit is the Corpus Delicti of the instant cases;

2. That this motion is anchored on the unlawful arrest of the Accused. The
arrest of the Accused becomes unlawful when it failed to comply the
procedure mandated under Section 21 Article II of RA 9165. The said
provision of law requires the presence of a.) Elected Official
representative, b.) DOJ representative, and c.) Media representative during
the conduct of the buy-bust operation and/or upon the apprehension of the
Accused. In the instant case, not one of them was present during the
conduct of the buy-bust operation and also at the time of the pre-operation
briefing;
3. The poseur-buyer, PO1 Ma. Kristy Julian of the PNP-Cotabato Provincial
Police Station, failed to produce the three (3) witnesses during the actual
conduct of the alleged buy-bust operation. The three (3) witnesses should
be and required to be present during the actual buy-bust operation in order
for them to see or to witness the exchange of the alleged product of Shabu
from the Accused and the marked-money from the poseur-buyer. The three
(3) witnesses should not necessarily be too closer to the scene of the
operation but as such they are required to be at or near the intended place
where they are positioned in an area which they will be able to physically
see or to witness the actual exchange of the alleged product of Shabu and
the said marked-money before the eventual arrest of the Accused. Failure
of the arresting officer to comply the above procedure renders the buy-bust
operation illegal. Police Office Daquipa, the poseur-buyer, upon
clarificatory question of the court testified, as follows:

(TSN of PO1 Ma. Kristy Julian dated Sept. 13, 2022, Page 5)

4. The rule also mandates the presence of those three (3) witnesses during the
pre-operation briefing. The Judicial Affidavit of PO1 Julian did not
mentioned the presence of the witnesses, to quote in Q & A No. 4-5, as
follows:
(TSN of PO1 Ma. Kristy Julian dated Sept. 13, 2022, Page 4)

From the foregoing statement, it is crystal clear that the arresting officer
violated the requirement of the presence of the three (3) witnesses as
required in the conduct of buy-bust operation or at least the presence of the
witnesses during the act of apprehension. Likewise, the arresting team
failed to comply the requirement of the presence of the three (3) witnesses
at the pre-operation briefing;

5. The buy-bust operation is a legally effective and proven procedure,

sanctioned by law, for apprehending drug peddlers and distributors. The
law nevertheless also requires strict compliance with procedures laid down
by it to ensure that the rights are safeguarded;

6. The applicable law at the time of the commission of the crime is Section
21 Article II of RA 9165. This law lays down the procedure that the police
operatives must follow the required procedures to maintain the integrity of
the confiscated drugs used as evidence. The provision requires:

6.a. The seized items be inventoried and photographed

immediately after seizure or confiscation;
6.b. The physical inventory and photographing must be done in
the presence of:
6.b.1.Accused or his/her Representative or Counsel
6.b.2. Elected Public Official
6.b.3. Representative from the Media
6.b.4. Representative from the DOJ
 All of whom shall be required to sign the copies of the inventory and
be given a copy thereof;
(Underscoring supplied)

7. In the recent case of People of the Philippines versus Mario Manabat y

Dumagay in GR No. 242947 dated July 17, 2019, the Supreme Court – 2nd
Division said that the three (3) witnesses must be physically present at the
time of arrest. The Supreme Court ruled, to quote:

“In this connection, this also means that the three

(3) required witnesses should already be physically
present at the time of the apprehension – a
requirement that can easily be complied with by the
buy-bust team considering that the buy-bust
operation is, by its nature, a planned activity.”

Another recent case of People v. Tomawis in GR No. 228890 dated April

18, 2018, the Honorable Supreme Court ruled, to quote:

“The presence of the witnesses from the DOJ, media,

and from public elective office is necessary to protect
against the possibility of planting, contamination, or
loss of the seized drug. Using the language of the
Court in People v. Mendoza19, without the insulating
presence of the representative from the media or the
DOJ and any elected public official during the seizure
and marking of the drugs, the evils of switching,
"planting" or contamination of the evidence that had
tainted the buy-busts conducted under the regime of
RA No. 6425 (Dangerous Drugs Act of 1972) again
reared their ugly heads as to negate the integrity and
credibility of the seizure and confiscation of the
subject sachet that was evidence of the corpus delicti,
and thus adversely affected the trustworthiness of the
incrimination of the accused.20 The presence of the
three witnesses must be secured not only during the
inventory but more importantly at the time of the
warrantless arrest. It is at this point in which the
presence of the three witnesses is most needed, as it is
their presence at the time of seizure and confiscation
that would belie any doubt as to the source, identity,
and integrity of the seized drug. If the buy-bust
operation is legitimately conducted, the presence of
the insulating witnesses would also controvert the
usual defense of frame-up as the witnesses would be
able testify that the buy-bust operation and inventory
of the seized drugs were done in their presence in
accordance with Section 21 of RA 9165.
 The practice of police operatives of not bringing to the
intended place of arrest the three witnesses, when they
could easily do so - and "calling them in" to the place
of inventory to witness the inventory and photographing
of the drugs only after the buy-bust operation has
already been finished - does not achieve the purpose of
the law in having these witnesses prevent or insulate
against the planting of drugs.

To restate, the presence of the three witnesses at the

time of seizure and confiscation of the drugs must be
secured and complied with at the time of the warrantless
arrest; such that they are required to be at or near the
intended place of the arrest so that they can be ready to
witness the inventory and photographing of the seized
and confiscated drugs "immediately after seizure and
confiscation".21 (Emphasis in the original)”

8. The violation committed by the buy-bust team who arrested the Accused
on April 28, 2015 at Mundas Compound, Purok Rambutan, Brgy. Amas,
Kidapawan City, which requires:

8.a. The presence of the three (3) witnesses during the conduct
of buy-bust operation who are the elected public official,
media representative, & DOJ representative; and
8.b. The presence of the three (3) witnesses in the conduct of pre-
operation and/or initial briefing;

9. The buy-bust operation, the basis for the warrantless arrest of Accused,
failed to comply the mandated procedure in the conduct of the buy-bust
operation. Therefore, it is invalid and the Accused was unlawfully arrested.
Consequently, all the alleged items seized from the Accused which are the
product of the alleged buy-bust operation should be declared inadmissible
in evidence under the exclusionary principle in the Article III Section 3(2)
of the Constitution. Hence, this Motion to Suppress Evidence;

WHEREFORE, premises considered, it is most respectfully prayed before this

Honorable Court TO GRANT herein suppression of evidence by declaring the
alleged buy-bust operation conducted against the Accused is invalid and declare all
items of Shabu and paraphernalia as inadmissible in evidence and further prays TO
DISMISS the above captioned-case and TO RELEASE Accused from detention cell.

Accused further prays for such other reliefs and remedies just and proper.
 RESPECTFULLY SUBMITTED.
September 22, 2022 at Kidapawan City, Cotabato, Philippines.

Assisted by:

Department of Justice
PUBLIC ATTORNEY’S OFFICE
Kidapawan City District Office
Hall of Justice, Kidapawan City

ATTY. YUSOF ALIUDIN

Public Attorney II
Roll of Attorney No. 72215
Pursuant to RA 9406

NOTICE OF HEARING/SUBMISSION

THE CLERK OF COURT

RTC Br. 17
Hall of Justice, Kidapawan City

THE CITY PROSECUTOR

CPO – Kidapawan City

GREETINGS:

Please take notice on Friday morning ______________, the foregoing Motion

will be submitted for the consideration and approval of the Honorable Court.

ATTY. YUSOF ALIUDIN

Public Attorney II

Copy furnished:

THE CITY PROSECUTOR

CPO – Kidapawan City