REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
Manila
Third DIVISION

CA G.R. NO. 123456

PEOPLE OF THE PHILIPPINES,
Plaintiff-Appellee.

- versus
NORMAN DIMAIN y BUENAFE,
Accused-Appellant,
x-------------------------------------x

BRIEF FOR THE ACCUSED-APPELLANT

Accused-Appellant, by counsel, and to this Honorable Court

respectfully files his brief for the appellant.

Brief for Appellant

Norman Dimain vs. People of the Philippines
CA-GR No. 12345
Page 2 of 12

TABLE OF CONTENTS
I.

ASSIGNMENT OF ERRORS
3

II.

PARTIES .
..

III. TIMELINESS OF APPEAL ..

3
IV. STATEMENT OF THE CASE
4-5
V.

STATEMENT OF THE FACTS

..

5-6

PROSECUTIONS VIEW
DEFENSES VIEW
VI. ARGUMENTS
.

6-10

VII. PRAYER

10

AUTHORITIES CITED:
1. Gaerlan v. Court of Appeals
2. Gutib v. Court of Appeals
3. Malillin v. People , G.R. No. 172953, 30-April-08
4. Michigan v. DiFillippo, , 443 U.S. 31
5. People v. Cuizon,

G.R. No. 109287, 18-Apr-96

Brief for Appellant

Norman Dimain vs. People of the Philippines
CA-GR No. 12345
Page 3 of 12

6. People v. Lati
7. United States v. Humphries, 372 F. 3d 653

Section 5, Rule 113, Rules on Criminal Procedure

Section 1, Rule 115, Rules on Criminal Procedure
Section 11, Article II of R.A. No. 9165, Dangerous Act of 1972

I
ASSIGNMENT OF ERRORS
The trial court committed the following errors:
1.

2.

The Trial Court erred in holding that

there was probable cause based merely
from the smell of marijuana.
The Trial Court erred in admitting the said

pipe when

the prosecution failed to show an

unbroken chain of

custody

of

the

alleged

pipe.
3.

In view of the forgoing, absent the

pipe,
the prosecutions evidence is
insuffi cient
to prove the guilt of the
accused-appellant
beyond
reasonable
doubt;

II
THE PARTIES

1. Norman Dimain y Buenafe is the appellant as represented by

Moreno and Mancia and Associates while THE PEOPLE of the

Brief for Appellant

Norman Dimain vs. People of the Philippines
CA-GR No. 12345
Page 4 of 12

PHILIPPINES is the appellee as represented by the Rizal Provincial

Prosecutors Office

III
TIMELINESS OF THE APPEAL
2. Accused-appellant received on July 15 2010 the Decision of the
Regional Trial Court dated July 10 2010. A Notice of Appeal was
timely filed on July 20 2010. Accused received on July 25 2010
the Order from the Court of Appeals directing him to file his
Appeal Brief within fifteen (15) days from receipt.

Hence, this

timely compliance.

IV
STATEMENT OF THE CASE
An Information for Violation of Section 11(3), Article II, of R.A. No.
9165 (Illegal possession of Dangerous Drugs) was filed before the
Regional Trial Court of Manila, Branch 2, against the accused
NORMAN DIMAIN, committed as follows:
That on or about April 13, 2009, in the City of Manila,
Philippines, the said accused, did then and there willfully,
unlawfully and knowingly have in his possession and under his
custody and

control One (1) rolled cigarette foil containing

ZERO POINT ZERO

FOUR FIVE (0.045) grams of burnt blackish

residue containing

MARIJUANA,

company of at least two (2)

Contrary to law.

dangerous

persons.

drug,

in

Brief for Appellant

Norman Dimain vs. People of the Philippines
CA-GR No. 12345
Page 5 of 12

Upon arraignment, the accused pleaded NOT GUILTY to

the crime charged. Trial on the merits then ensued. On February
04, 2010, the Trial Court rendered a Decision convicting the
accused of the offense charged, the fall of which reads:
WHEREFORE, from the foregoing, judgment is hereby
rendered finding accused, Norman Dimain y Buenafe, GUILTY
beyond reasonable doubt of the crime charged. He is hereby
sentenced to suffer the indeterminate penalty of 12 years and 1
day as minimum to 17 years and 4 months as maximum; to pay a
fine of P300,000 without subsidiary imprisonment in case of
insolvency and to pay the cost.
The specimen is forfeited in favor of the Government and
the Branch Clerk of Court, accompanied by the Branch Sheriff, is
directed to turn over with dispatch and upon receipt the said
specimen to the Philippine Drug and Enforcement Agency (PDEA)
for proper disposal in accordance with the law and the rules.
SO ORDERED. 1

V
STATEMENT OF THE FACTS
Prosecutions View:
3. PO3 Duran with P01 Cunanan and Laxa were at Concha Street, San
Andres Bukid, Manila2. At 1:45am April 13, 2009, they saw NORMAN
BUENAFE DIMAIN, accused, with two other companions holding
cigarette pipe3. They were five meters away from the accused when
1
2
3

The RTC Decision was penned by Judge Alejandro G. Bijasa

TSN page 3
Joint Affidavit of Apprehension

Brief for Appellant

Norman Dimain vs. People of the Philippines
CA-GR No. 12345
Page 6 of 12

they smelled the pungent smell of marijuana 4. The officers

immediately arrested the suspect while the other two run away from
them5. PO3 was able to recover an improvised pipe from the
accused6.
4. On the police report, Norman was subjected to search and the police
officers recovered improvised pipe with some marijuana 7. They
marked it NDB. The police officers brought the accused to the
Ospital ng Maynila for Medical/Physical Examination 8. Then they
brought the accused and pieces of evidences in the police station for
investigation and disposition9. The evidence was brought to SOCO,
MPD for examination to determine if the specimen submitted is
positive for dangerous drug10. The results yielded positive for
dangerous drug.11
5. On trial, P03 told the court that he made the marking with use of ball
pen NDB on the pipe based on Norman Dimain Buenafe 12. Then he
turned over the said pipe when the investigation started 13. He also
identified the said pipe as the same pipe found on the scene14.
Defense View
6. The accused was drinking alone at 2173 Concha Street on April 13,
200915. When he was about to buy two cigarettes, he saw two men
running and bumped him16. After he was thrown down by the bump,
he was arrested by police officers17.
7. The police officers told him that the accused made their life hard
because he was running from them18. However, he asked them what
he did wrong19. Then they brought him to the police station 20. He was
arrested for illegal drugs21. He said that the drugs came from police
officer Duran and they just implanted it to him22.

TSN page 4
TSN page 4
6
TSN page 4
7
Joint Affidavit of Apprehension
8
Joint Affidavit of Apprehension
9
Joint Affidavit of Apprehension
10
Joint Affidavit of Apprehension
11
Joint Affidavit of Apprehension
12
TSN page 4, page 8
13
TSN page 6
14
TSN page 6
15
TSN page 14
16
TSN page 14
17
TSN page 15
18
TSN page 15
19
TSN page 15
20
TSN page 15
21
TSN page 16
22
TSN page 16
4
5

Brief for Appellant

Norman Dimain vs. People of the Philippines
CA-GR No. 12345
Page 7 of 12

8. It was revealed on trial that there was an encounter with the

arresting officer before the incident23. He bumped their vehicle24.
9. At April 13, 2009, Ryan Bilbao was at computer shop located along
Concha Street25. He saw Norman eating junk foods and smoking and
drinking at that time26. He saw the police officers going to Normans
place and arrested him27. He also saw the companions of Norman
running away from the police officers28.
10.
The witness said that the police officers search the body of
Norman however they did not find any illegal item like marijuana
from the accused29.
VI
ARGUMENTS
1. The Trial Court erred in holding that there was
probable cause based merely from the smell of
marijuana.
11.

There was no probable cause for the P03 Bob Duran et al to

arrest Accused.
Section 5, Rule 113 of the Revised Rules of Criminal Procedure lays
down the basic rules on lawful warrantless arrests, either by a peace
officer or a private person, as follows:

Sec. 5. Arrest without warrant; when lawful. A peace officer or a

private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed,
is actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable
cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
23
24
25
26
27
28
29

TSN
TSN
TSN
TSN
TSN
TSN
TSN

page
page
page
page
page
page
page

17
17
21
22
22
22
23

Brief for Appellant

Norman Dimain vs. People of the Philippines
CA-GR No. 12345
Page 8 of 12

judgment or is temporarily confined while his case is pending, or has

escaped while being transferred from one confinement to another.
12.

For the warrantless arrest under paragraph (a) of Section 5 to

operate, two elements must concur: (1) the person to be arrested

must execute an overt act indicating that he has just committed, is
actually committing, or is attempting to commit a crime; and (2)
such overt act is done in the presence or within the view of the
arresting officer.19 On the other hand, paragraph (b) of Section 5
requires for its application that at the time of the arrest, an offense
had in fact just been committed and the arresting officer had
personal knowledge of facts indicating that the appellant had
committed it.30
13.

In both instances, the officers personal knowledge of the fact

of the commission of an offense is absolutely required. Under

paragraph (a), the officer himself witnesses the crime while under
paragraph (b), he knows for a fact that a crime has just been
committed.
14.

In the first paragraph of page five of its decision, the Trial

Court held that:

the pungent of marijuana gave the police sufficient probable cause
to arrest the accused because marijuana has distinct pungent smell
unlike ordinary cigarette.
Marijuana Odor as Component of Totality of Circumstances
15.

As American Jurisprudence has persuasive effect in Philippine

courts, the accused appellant herein cites decisions by American

Courts.
16.

The Court in United States v. Humphries, 372 F. 3d 653

(4th Cir. 2004) held that: "[w]hile smelling marijuana does not
30

(People v. Cuizon, G.R. No. 109287, April 18, 1996, 256 SCRA 325, 341.)

Brief for Appellant

Norman Dimain vs. People of the Philippines
CA-GR No. 12345
Page 9 of 12

assure that marijuana is still present, the odor certainly provides

probable cause to believe that it is." But this probable cause, or
even knowledge of the presence of marijuana, does not in itself
authorize the police to search any place or arrest any person in
the area. The police must have additional factors to "localize" or
"particularize" the placement of the marijuana to justify a search
or arrest.
17.

In Michigan v. DiFillippo, 443 U.S. 31, 37 (1979), the US

Supreme court held that to substantiate a warrantless search,

"the question is whether the totality of the circumstances is
sufficient to warrant a reasonable person to believe that
contraband or evidence of a crime will be found in a particular
place." When considering the legality of a warrantless arrest,
one

considers

"whether

the

totality

of

the

circumstances

indicate to a reasonable person that a 'suspect has committed,

is committing, or is about to commit' a crime." But in either
instance, the "quantum of facts required for the officer to search
or seize is probable cause" for either a search or seizure.
18.
The officers, P03 Duran et al. had no probable cause to
arrest Accused because there were no other factors that
strengthened the officer's conclusion that probable cause
existed. There was no suspicious conduct other than accused
appellant and his friends smoking, which is not suspicious at all,
and that the encounter took place in an area not known for drug
trafficking.
Offi cer Experience and Training in Drug Detection Is Key
19.
The ability of an officer to explain and justify the accuracy
of his perceptions is important when he or she relies on those
perceptions to formulate probable cause. For instance, The Court
held that a police officer had probable cause to search a
bayong after smelling marijuana because he had experience
for his stint as narcotics police and had smelled marijuana
hundreds of times.
20.
No evidence was given in this case that P03 Bob Duran et
al. had experience in narcotics. Even though the smell of
marijuana is distinct from that of a cigarette, because the officers
had not been trained in "determining the length of time a
residual odor or marijuana has been present" it was not

Brief for Appellant

Norman Dimain vs. People of the Philippines
CA-GR No. 12345
Page 10 of 12

reasonable
marijuana.

for

him

to

believe

that

the

Accused

smoked

2. The Trial Court erred in admitting the said

pipe
when the prosecution failed to show an unbroken chain of
custody of the alleged pipe.
21. Under Section 11, Article II of R.A. No. 9165, the elements
necessary in a prosecution for the illegal possession of drugs are:
1.) The accused is in possession of an item or object that
is identified to be a prohibited or dangerous drug.
2.) Such possession is not authorized by law.
3.) The accused freely and consciously possessed the
drug.
22. The prosecution must prove that the possession took place. The
corpus delicti the body or substance of the crime which
establishes the fact that crime has actually been committed
must also be presented in court. In cases involving narcotics, the
illegal drug itself constitutes the corpus delicti of the offense. The
existence of the illegal drug is vital for the court to find the
accused guilty beyond reasonable doubt. The chain of custody
rule ensures that unnecessary doubts on the identity of the
evidence are removed.
23. In Malillin v. People, the Supreme Court explained how it
expects the chain of custody or movement of the seized
evidence to be maintained. There must be testimony about
every link in the chain, from the moment the object seized was
picked up to the time it is offered in evidence. Every person who
touched the object must describe
1.) How and from whom it was received, where it was, and what
happened to it while in the witnesss possession,
2.) The condition in which it was received, and the condition in
which it was delivered to the next link in the chain.
24. These witnesses must describe the precautions taken to ensure
that there had been
1. no change in the condition of the object and
2. no opportunity for someone not in the chain to
possess the object.
25. PO3 Duran, one of the arresting officers, testified on the marking
and eventual turnover of the allegedly seized pipe to the
investigator. But no explanation was given on its custody in the
interim from the time it was turned over to the investigator to
its turnover for laboratory examination. The case records also do
not show what happened to the allegedly seized pipe between
the turnover by the chemist to the investigator and its
presentation in court.

Brief for Appellant

Norman Dimain vs. People of the Philippines
CA-GR No. 12345
Page 11 of 12

26. Therefore the pipe is inadmissible as evidence.

3.

Absent the pipe, the prosecutions evidence is not

suffi cient
27. All of the prosecutions evidence relied heavily on the seized pipe.
As the pipe is inadmissible as evidence, all of the prosecutions
evidences must be disregarded.
28. It is incumbent upon the prosecution to adduce evidence sufficient
to prove beyond reasonable doubt (a) the commission of the crime,
and (b) the precise degree of participation therein by the accused.31
The charges against an accused must be dismissed if there is no
competent or sufficient evidence adduced that would sustain the
charges against him.
29. It is well-settled rule that conviction for a criminal offense should be
based on clear and positive evidence and not on mere assumption. 32
The burden lies upon the prosecution to prove the guilt of the
accused beyond reasonable doubt rather that upon the accused to
prove that he is in fact innocent. 33 Failing in this, the presumption of
innocence will prevail.34

VI
P R A Y E R
WHEREFORE,

the accused-appellant respectfully prays

that Decisions of the trial court be reversed, set aside and

nullified, and the judgment be rendered in favor of the accused-

31
32
33
34

(Gutib vs. Court of Appeals, 312 SCRA 365)

(Gaerlan vs. CA 179 SCRA 20)
(People vs. Lati, 184 SCRA 336)
. (Sec. 1 (a) Rule 115)

Brief for Appellant

Norman Dimain vs. People of the Philippines
CA-GR No. 12345
Page 12 of 12

appellant as prayed for in his answer; to dismiss the case for his
guilt has not been proven beyond reasonable doubt.

Accused-appellant further prays for such other relief as may

be just and equitable in the premises.

July 30, 2010.

MORENO & MANCIA

LAW CENTER
20 TH FLOOR, M&M TOWER
MAKATI, CITY
Counsel for the Accused
by:
RUFINO MORENO III
Roll No. 12345
IBP No. 9876; 12/29/2008
MCLE Exempt (Admitted
2007)
RYLE SCOTT MANCIA
Roll No. 67890
IBP No. 54321; 12/29/2008
MCLE Exempt (Admitted
2007)