Monday, June 27, 2016

PNP ACG arrested 20 for cybersex even without sex organs, sex acts

PNP ACG arrested 20 for cybersex 
even without sex organs, sex acts

I am taking a selfie here with the respondents being raided as the background, at 4:00 a.m. of 23 June 2016.

The respondents arrested by the PNP ACG operatives are shown being detained.




By BERTENI CATALUÑA CAUSING

(This is blogged because this is a public interest story and it helps to community to be informed of the goings on in this kind of operation. There is no intention of influencing the decision makers because the prosecutors tasked to decide the issues are trained not to be affected by what the public may feel.)

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

Call it gross ignorance or incompetence, both fit the policemen involved in this story.

Members of the Philippine National Police Anti-Cybercrime Group arrested 20 persons at 11:30 p.m. of 22 June 2016 when its operatives led by Police Supt. Jay Danao Guillermo raided a call center in Barangay San Martin, City of San Jose del Monte, Bulacan upon the strength of the search warrant issued by Regional Trial Court of Guimba, Nueva Ecija.

In the charges filed before the Office of the City Prosecutor the cops charged these individuals who are still young as most of them are in their 20s with commission of the crimes of cybersex, distributing or selling plays or films and other porno materials, and aiding in trafficking in persons.

As defined in Republic Act No. 10175 or Cybercrime Prevention Act, cybersex is exhibition of sex organs or lascivious display thereof and exhibiting sexual acts.  In other words, the cops accused the arrested individuals of showing live sex show of organs or sexual activities.

This accusation of live-showing sex organs and sexual activities is obvious to be false or not true because the police operatives themselves declared in their Joint Affidavit of Arrest that the persons were only sitting in front of their respective computer sets when the ACG operatives barged inside the second and third floor of the building raided by the cops,  

The raiders also virtually admitted they lied on their claim about the occurrence of live sex shows because in their list of confiscated evidence, there was no mention of any camera there.

These ACG cops must have also been put to shame in their second charge that they cannot support their charges against the same 20 individuals they arrested.   According to these policemen, the 20 violated Article 201 of the Revised Penal Code by means of selling, giving away or distributing films, prints, engravings, sculpture or literature offensive to morals.  In their inventory of items seized, the cops did not list any film, any print, any engraving, any sculpture or any literature that are offensive to morals.

These cops also added another shame to the PNP when they could not even support their charge that the 20 violated Section 5 of Republic Act 9208, an act of promoting trafficking in persons.  The cops did not even present any confiscated promotional materials.

Analyzing, the only reason of these cops in advancing those charges is the alleged websites found in the monitors of the computer sets used by these 20 persons.

However, these alleged websites cannot even be used to prove sexual activities or sex organs or plain pornography because the home pages when opened did not show any photo of women or men showing sex organs or conducting sexual activity.

To read and get better comprehension of the summarized statements, the entire pleading entitled "MEMORANDUM IN AID OF INQUEST PROCEEDINGS" was filed by this author as the lawyer of these 20 persons.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Republic of the Philippines
Department of Justice
Office of the City Prosecutor
City of San Jose del Monte



PHILIPPINE NATIONAL POLICE (PNP)
ANTI-CYBERCRIME GROUP (ACG),
Represented by PSUPT. JAY DANAO
GUILLERMO, PO3 RAFAEL V. BUMALAY JR.,
PO3 SANTIAGO A. ROY, PO3 BERNADETH T.
GARCIA,  SPO1 JOCAR SAMENIAN and
PO3 JONATHAN B. JULIAN, PNP ACG
Camp Crame, Quezon City,
                                                            Complainant,

            - versus -                               NPS Dock. No. III-15-INQ-16F-00202

SHERLY JEAN B. AVELLANA (25 YEARS OLD),
MA. ELENA C. MERCOLITA (30), MARICAR
A. PAGWAGAN (18), CARMELA L. CARMELO (23),
 JENALYN L. TAZARTE (25), TERESEA S. RAYO (39),
CATHY A. DELA ROSA (19), EZERL A. VICTORINO (30),
JOHN CARLOS S. VERGARA (20), RAYMOND N.
SUDARIO (27), RUSSEL G. CANLAS (27), NORMAN
P. FORTICH (21), STEVEN JOMMEL G. RICO (24),
SHERWIN A. DEL ROSARIO (29), ALCEL JAN B.
CRUZ (26), JAVEMAR Y. VERGAÑO (32),
REYMARK M. ROLDAN (27), BENEDICT JADE
L. DURAN (27), SUREWIN G. CARREON (21),
JULIUS CHRISTIAN P. REALBA (29),
                                                            Respondents.
x---------------------------------------------------------x



MEMORANDUM
IN AID OF INQUEST PROCEEDINGS


            If there is no crime victim, there is no crime.  This is filed just to aid the office of the City Prosecutor in understanding the case and help in the intelligent resolution of the case.


If there is no receiver, there is no one to receive from whoever may have the inkling to give whatever. 


If there is no receiver, there is no one to receive from whoever may have the desire to distribute anything.


Aside from the foregoing, it is very clear there is no BODY OF THE CRIME or corpus delicti that can be seen when the charges put up by Anti-Cybercrime Group police officers are read.


The better rule of the game, therefore, is to throw out all these cases.


The basic ingredient of the crimes being accused of is not even established even only in the degree of probable cause.  The evidence presented by the operatives of PNP-ACG do not constitute even a degree of probable.


The charges are violations of Section 4(c)(1) of Republic Act No. 10175, Article 201 of the Revised Penal Code, and Section 5 of Republic Act No. 9208.


The first and the second, Section 4(c)(1) and Article 201, respectively, are founded on the ingredient of a showing or displaying sex organs or sexual acts.   The first refers to LIVE SHOWING OF SEX ORGANS or SEXUAL ACTS of masturbation or sexual intercourse.   The second refers to showing of the same not necessarily a live show.


The third charge refers to promotion of trafficking in persons through advertising, publication, printing, broadcasting or distributing or causing any of these promotional activities to happen and the one being promoted is any brochure or flyer or propaganda material that promotes trafficking in persons. 


The third therefore refers to the basic ingredient of the existence of any brochure, any flyer, any propaganda material that promotes trafficking in persons.


When it comes to the showing of sex organs or sexual activities (masturbation and sexual intercourse), there is none presented thus far.   The only goods brought forth by the PNP-ACG operatives are printouts of photos of women in underwear (bra and panty) and not one of these show sex organs or sexual activity of masturbation or sexual intercourse.


Ergo, as it shows now, it is IMPOSSIBLE TO SEE THE CORPUS DELICTI or the BODY OF THE CRIME of Section 4(c)(1) or RA 10175 and Article 201 of the Revised Penal Code.


An examination of arguments, allegations and evidence shows also nothing to build a body of the crime for a violation of Section 5 of RA 9208.


And the fact that there is no flyer that promotes trafficking in persons, the fact there is no propaganda material promoting trafficking in persons, the fact that there is advertisement promoting trafficking in persons, then THERE IS ALSO NO CORPUS DELICTI or BODY OF THE CRIME for Section 5 of RA 9208.



The first charge: violation of
Section 4(c)(1) of RA 10175



This is true to the crime of violation of Section 4(c)(1) of Republic Act No. 10175 that is being charged against all the respondents here.


            In the case decided by the Supreme Court, G.R. No. 203306, “ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY S. YAP, BERTENI "TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners, vs. OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE OF THE PHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents,” the Supreme Court declared as unconstitutional the following provisions of RA 10175, the law being invoked here by the PNP-ACG against the respondents,  were declared as follows:


·               Sec. 4(c)(3) (Unsolicited Commercial Communications);

·               Sec. 12 (Real time collection of traffic data);

·               Sec. 19 (Restricting or blocking access to computer data);

·               Sec. 4(c)(4) (online libel, only where it penalises those who simply receive the post or react to it) but NOT UNCONSTITUTIONAL as far as the original author is concerned;

·               Sec. 5 (aiding or abetting in the commission of a cybercrime/attempt to commit a cybercrime) only in relation to secs. 4(c)(2) (child pornography), 4(c)(3) (unsolicited commercial communications) and 4(c)(4) (libel); and

·               Sec. 7 (liability under other laws) only in relation to secs. 4(c)(4) (libel) and 4(c)(2) (child pornography).


(NOTE: The undersigned attorney is one of the petitioners in the above-cited case.)


            It shows that Section 4(c)(1) is not among those declared by the Supreme Court as unconstitutional.


            But what is the definition of cybersex?


            There is no definition of cybersex placed in the law.  However, Merriam-Webster defines the same as “activity in which people become sexually excited by sending messages about sex to each other over the Internet.”


            This simply means that for this crime to be committed there must be at least two persons because sexual acts cannot be done with fulfilment without a partner and that the sexual acts was intended for profit.


In that case, GR No. 203306, the Supreme Court stated:


In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of obscenity.  The Court will not declare Section 4(c)(1) unconstitutional where it stands a construction that makes it apply only to persons engaged in the business of maintaining, controlling, or operating, directly or indirectly, the lascivious exhibition of sexual organs or sexual activity with the aid of a computer system as Congress has intended.
           

The exact words of the law are these:


CHAPTER II
PUNISHABLE ACTS

SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

xxx                       xxx                       xxx

(c) Content-related Offenses:
(1) Cybersex. — The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.

xxx                       xxx                       xxx


            From the law, analysis can be done to produce a result stating that the elements of this crime are: (a) wilful act or deliberate act or knowing act; (b) engagement, maintenance, control or operation of any lascivious exhibition of sexual organs or sexual activity; (c) with the aid of a computer system; and (d) in exchange for favor or consideration that means profit.


            What is striking in the analysis is that THERE MUST BE LIVE SHOWING OF SEXUAL ORGANS or LASCIVIOUS EXHIBITION OF THESE ORGANS or SEXUAL ACTIVITIES.


            As admitted by the PNP ACG operatives themselves, in their affidavits, documents attached, in their declaration of their receipt or inventory of confiscated or seized items, in their certificate of peaceful and orderly conduct of search, and in their memorandum of the charges that they addressed to the Office of the City Prosecutor of San Jose Del Monte City, Bulacan.


            As the Supreme Court stated above, this law applies only to persons engaged in the business of maintaining live sexual shows.  The live sex show between boyfriend and girlfriend or lovers or spouses is not punishable by this law, Section 4(c)(1) of RA 10175.


            Let us now apply the law on the facts of the present charge.


            The facts readily established from the affidavits and documents submitted by the operatives of the PNP-ACG are the following:


1.     There is no evidence of live showing, video or otherwise, of lascivious exhibition of sex organs or sexual activity;


2.     The nearest the PNP-ACG operatives could get is to submit printouts from websites showing pictures of women wearing underwear, a panty and a bra or a panty only, and not one of these photos can infer that there was live showing of lascivious conduct or sexual activity that happened when the operatives barged inside Second Floor and Third Floors of the building raided and searched by the operatives;


3.     A review of the of the declarations in the Affidavit of Arrest shows that there was no declaration by the three police officers that any of the respondents was caught displaying their penis or vagina before a camera attached to the computer that is in turn attached to the internet;


4.     The arresting officers, PO3 Rafael V. Bumalay Jr., PO3 Santiago A. Roy and PO2 Mabeth G. Villanueva, declared they barged inside Second Floor and Third Floor of the building and they made declarations what they found in every computer system;


5.     In the joint affidavit of  arrest, PO3 Bumalay, PO3 Roy and PO2 Villanueva, the police officers did not declare that any of the computer sets showed any proof that any respondent was caught in the act of lascivious showing his or her sex organ or conducted any sex activity, and not one was caught as has just been committing that act of lascivious showing of a sex organ or performing any sexual activity;


6.     What they declared was that they found pornographic links only and not any lascivious sex organ showing or sexual activity;


7.     To prove the statement in Paragraph No. 6 above, that material part of their Joint Affidavit of Arrest is hereby pasted below:

AFFIDAVIT OF ARREST 1.jpg



8.     The PNP-ACG and the affiants never submitted any evidence to explain what these “pornographic links” mean and how they could be considered as “lascivious showing of sex organs” or sex activity;


9.     These PNP-ACG cops also did not also explain what do the listed websites above contain so that there is no evidence that can serve as basis to declare what really these websites are, which websites are www.pof.com, https://establishedmen.com/dashboard, https://tools.localsexfriends.com, https://campleasures.com, www.fakemailgenerator.com, http://islandcash.com, https://cougarlife.com, https://www.okcupid.com, www.hookup.com, www.wilcash.com, https://epicdollars.com, and www.kik.com;


10.  In the affidavits of Police Supt. Jay Danao Guillermo and of technical persons, there is also no explanation how these websites and “pornographic links” could be considered as  “lascivious showing of sex organs” and sexual activity; and


11.  The police operatives also declared that when they barged inside Second Floor and Third Floor of the building they saw the respondents sitting side-by-side with each other and there were twenty (20) of them in all.


Ergo, it is clearer than the sky that there is NO PROBABLE CAUSE that the respondents lasciviously displayed their sex organs or performed any sexual activity when caught by police officers.


Additionally, IT CANNOT HAPPEN for any person to show his or her sex organ or perform any sexual activity in front of a camera if there are at least ten (10) people in the room who can at least see any of them.


Further, THE INVENTORY OF SEIZED ITEMS SHOWED that not one camera was seized by the PNP ACG operatives, MAKING IT IMPOSSIBLE for the crime of violation of Section 4(c)(1) to happen.


Moreover, the PNP ACG operatives did not present any evidence to show any probable cause that other persons saw the respondents displaying their sex organs or conducting sexual activity.



The second charge: Violation of
Article 201 of the Revised Penal Code



Based on the memorandum submitted by the PNP ACG through its members led by Police Superintendent Jay Danao Guillermo, aside from alleged violation Section 4 (c)(1), they are also charging all the respondents with the alleged violation of Article 201 of Revised Penal Code.


Article 201 is hereby quoted as follows:


Art. 201. Immoral doctrines, obscene publications and exhibitions and indecent shows. — The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon:

(1) Those who shall publicly expound or proclaim doctrines openly contrary to public morals;

(2)
(a) the authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same;

(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit, indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals, and good customs, established policies, lawful orders, decrees and edicts;

(3) Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals. (As amended by PD Nos. 960 and 969).


The elements of Article 201 (1) are: (a) knowingly doing the act of publicly expounding or proclaiming; (b) the one being publicly expounded or proclaimed are doctrines; and (c) that these doctrines openly contrary to morals.


The elements of Article 201 (2) (a) in one form are: (a) the accused is an author; (b) the one being authored is obscene literature; (c) the same literature was published with knowledge in any form. 


The elements of Article 201 (2) (a) in second form are: (a) the accused is an editor; and (b) the editor published such literature.


The elements of Article 201 (2) (a) in third form are: (a) the accused is an owner or operator; (b) the owner or operator is the owner or operator of the establishment; and (c) the establishment is selling obscene literature.


The elements of Article 201 (2) (b) are: (a) the accused did the act of exhibiting; (b) the place of exhibition is either in theater, fair, cinematograph or any other place; and (c) the one being exhibited is indecent or immoral plays, scenes, acts or shows.  


The same law Article 201 (2)(b) includes in the group of immoral plays, scenes, acts or shows the following:  (1) exhibitions that glorify criminals or condone crimes; (2) exhibitions that serve no other purpose but to satisfy the market for violence, lust or pornography; (3) exhibitions that offend any race or religion; (4) exhibitions that tend to abet traffic in and use of prohibited drugs; and (5) exhibitions that are contrary to law, public order, morals, and good customs, established policies, lawful orders, decrees and edicts.


It is obvious that in the present case, the claim of the PNP ACG operatives in relation to Article 201 of the Revised Penal Code is that they claimed their agents caught the respondents in the act of “publishing, advertising, chatting and offering adult obscene pornographic websites through online clients.”


The elements of the crime of violation of Article 201 (3) of the RPC are as follows: (a) that the accused knowingly sell, give away or exhibit; (b) the ones being sold, given away or exhibited are films, prints, engravings, sculpture or literature; and (c) these films, prints, engravings, sculpture or literature are offensive to morals.  


The first question now deals with whether or not “pornographic websites” can be considered within the definitions of the following:


[a] immoral doctrines under Article 201 (1);

[b] obscene literature under Article 201 (2)(a);

[c] indecent or immoral plays, scenes, acts or shows Article 201 (2)(b); or

[d] films, prints, engravings, sculpture or literature under Article 201 (3).


Now let the law be applied on the facts established as listed above, such:


1.     There is no evidence of live showing, video or otherwise, of lascivious exhibition of sex organs or sexual activity;


2.     The nearest the PNP-ACG operatives could get is to submit printouts from websites showing pictures of women wearing underwear, a panty and a bra or a panty only, and not one of these photos can infer that there was live showing of lascivious conduct or sexual activity that happened when the operatives barged inside Second Floor and Third Floors of the building raided and searched by the operatives;


3.     A review of the of the declarations in the Affidavit of Arrest shows that there was no declaration by the three police officers that any of the respondents was caught displaying their penis or vagina before a camera attached to the computer that is in turn attached to the internet;


4.     The arresting officers, PO3 Rafael V. Bumalay Jr., PO3 Santiago A. Roy and PO2 Mabeth G. Villanueva, declared they barged inside Second Floor and Third Floor of the building and they made declarations what they found in every computer system;


5.     In the joint affidavit of  arrest, PO3 Bumalay, PO3 Roy and PO2 Villanueva, the police officers did not declare that any of the computer sets showed any proof that any respondent was caught in the act of lascivious showing his or her sex organ or conducted any sex activity, and not one was caught as has just been committing that act of lascivious showing of a sex organ or performing any sexual activity;


6.     What they declared was that they found pornographic links only and not any lascivious sex organ showing or sexual activity;


7.     To prove the statement in Paragraph No. 6 above, that material part of their Joint Affidavit of Arrest is hereby pasted below:

AFFIDAVIT OF ARREST 1.jpg



8.     The PNP-ACG and the affiants never submitted any evidence to explain what these “pornographic links” mean and how they could be considered as “lascivious showing of sex organs” or sex activity;


9.     These PNP-ACG cops also did not also explain what do the listed websites above contain so that there is no evidence that can serve as basis to declare what really these websites are, which websites are www.pof.com, https://establishedmen.com/dashboard, https://tools.localsexfriends.com, https://campleasures.com, www.fakemailgenerator.com, http://islandcash.com, https://cougarlife.com, https://www.okcupid.com, www.hookup.com, www.wilcash.com, https://epicdollars.com, and www.kik.com;


10.  In the affidavits of Police Supt. Jay Danao Guillermo and of technical persons, there is also no explanation how these websites and “pornographic links” could be considered as  “lascivious showing of sex organs” and sexual activity; and


11.  The police operatives also declared that when they barged inside Second Floor and Third Floor of the building they saw the respondents sitting side-by-side with each other and there were twenty (20) of them in all.


Websites alone and without opening the websites can never be considered as “immoral doctrines.”


Websites alone and without opening the websites can never be considered as “obscene literature.”


Websites alone and without opening the websites can never be considered as “plays, scenes, acts or shows.”


Websites alone and without opening the websites can never be considered as “films, prints, engravings, sculpture or literature.”


Ergo, there is nothing that can justify to claim that websites alone and without opening the websites can be considered as “immoral doctrines,” or “obscene literature,” or as obscene “plays, scenes, acts or shows.”


That it was therefore a crime of illegal arrest that was committed by the police officers here because they arrested the respondents without any justification how the respondents can be considered as having committed a criminal act when found, or how can it be treated that the police officers had personal knowledge of facts and circumstance that the respondents committed these crimes.





That they arrested during the implementation of Search Warrant No. 136-16 issued by the faraway Regional Trial Court of Guimba, Nueva Ecija, Branch 32.



The third charge: Violation of
Section 5 of RA No. 9208



            With more impossibility that it can be said that the respondents probably committed the crime of violation of Section 5 of RA 9208.


            Section 5 states:


Section 5. Acts that Promote Trafficking in Persons. - The following acts which promote or facilitate trafficking in persons, shall be unlawful:

(a) To knowingly lease or sublease, use or allow to be used any house, building or establishment for the purpose of promoting trafficking in persons;

(b) To produce, print and issue or distribute unissued, tampered or fake counseling certificates, registration stickers and certificates of any government agency which issues these certificates and stickers as proof of compliance with government regulatory and pre-departure requirements for the purpose of promoting trafficking in persons;

(c) To advertise, publish, print, broadcast or distribute, or cause the advertisement, publication, printing, broadcasting or distribution by any means, including the use of information technology and the internet, of any brochure, flyer, or any propaganda material that promotes trafficking in persons;

(d) To assist in the conduct of misrepresentation or fraud for purposes of facilitating the acquisition of clearances and necessary exit documents from government agencies that are mandated to provide pre-departure registration and services for departing persons for the purpose of promoting trafficking in persons;

(e) To facilitate, assist or help in the exit and entry of persons from/to the country at international and local airports, territorial boundaries and seaports who are in possession of unissued, tampered or fraudulent travel documents for the purpose of promoting trafficking in persons;

(f) To confiscate, conceal, or destroy the passport, travel documents, or personal documents or belongings of trafficked persons in furtherance of trafficking or to prevent them from leaving the country or seeking redress from the government or appropriate agencies; and

(g) To knowingly benefit from, financial or otherwise, or make use of, the labor or services of a person held to a condition of involuntary servitude, forced labor, or slavery.


            In the Memorandum for Preliminary Investigation filed by the police officers, they charged the respondent with violation of Section 5(c) RA No. 9208.


            The particular provision is:


(c) To advertise, publish, print, broadcast or distribute, or cause the advertisement, publication, printing, broadcasting or distribution by any means, including the use of information technology and the internet, of any brochure, flyer, or any propaganda material that promotes trafficking in persons;



            First, let trafficking in persons be defined as defined by RA 9208, to wit:


Section 3. Definition of Terms. - As used in this Act:

(a) Trafficking in Persons - refers to the recruitment, transportation, transfer or harboring, or receipt of persons with or without the victim's consent or knowledge, within or across national borders by means of threat or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of the vulnerability of the person, or, the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation which includes at a minimum, the exploitation or the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery, servitude or the removal or sale of organs.

The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall also be considered as "trafficking in persons" even if it does not involve any of the means set forth in the preceding paragraph.


            By reckoning from the affidavits and documents submitted, the police operatives did not present any persons recruited by the respondents.  So that the first element of the crime of violation of Section 5 of RA 9208 is missing.  The cops also did not state or submit proof words in any brochure or website expressly recruiting people.


            ERGO, there is clearly no sufficient evidence to form or engender a well-founded belief that the respondents committed a violation of Section 5 of RA 9208.


Violation of the Rule
in Search Implementation



            The operatives of the PNP ACG violated the rule mandating how to implement the witness rule in the execution of the search warrant.


            Section 8 of Rule 126 states:


Sec. 8. Search of house, room, or premises to be made in presence of two witnesses. – No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality.


            The first rule of the execution of the search warrant is that it must be witnessed.


            And Rule 126 requires that the first witness to be considered must be lawful occupants.


            The operatives implementing search warrants cannot use any other witness if lawful occupants were present.  In this case, all the respondents were LAWFUL OCCUPANTS and THEY WERE NOT MADE AS WITNESSES BECAUSE THEY WERE IMMEDIATELY ARRESTED RIGHT AT THE MOMENT THE POLICE OFFICERS OF ACG barged inside the 2nd and 3rd floors of the building in Barangay San Martin, City of San Jose del Monte, Bulacan.


            As admitted by the arresting officers PO3 Bumalay, PO3 Roy and PO2 Villanueva, they swore in their Joint Affidavit of Arrest to wit:


AFFIDAVIT OF ARREST 3.jpg


            It is clear that the officers did not ask any respondent to witness the search.  Instead, what they did was ARRESTING IMMEDIATELY THE RESPONDENTS BY ORDERING THEM TO FREEZE UPON ENTRY BY THE POLICE OFFICERS.


            Hence, the arrest itself was NOT JUSTICE because when it was done was that there was no crime happening in sight because the police officers were still entering the 2nd and 3rd Floors of the building.


            Nevertheless, this confirmed that the search done was not done using these respondents as witnesses to the search on each of their computers.


            To follow through, let the continuation of the Joint Affidavit of Arrest be posted below, to wit:


AFFIDAVIT OF ARREST 4.jpg


            The most the three arresting officers did was only to approach the computer sets one by one and it is clear that they did not use these respondents as witnesses, considering that the freeze order was not yet ordered lifted by any of the cops.  The technical personnel of the PNP ACG also conducted their search of the computer hard disks and monitors without any witnesses.


Let us examine the continuation of the affidavit of arrest, to wit:


AFFIDAVIT OF ARREST 5.jpg


There is also no mention that the PNP-ACG operatives used witnesses in the conduct of the search, considering that the search is more technical than ordinary searches of drugs or guns.


In the succeeding two pages of the joint affidavit of arrest, there is also no mention that the PNP-ACG operatives utilized any witness to the conduct or execution of the search warrant issued by Judge Ramon Pamular of the faraway Guimba RTC in Nueva Ecija, a circumstance that is anomalous.
AFFIDAVIT OF ARREST 6.jpg


In this page, there is clearly no mention of using any witness to the conduct of the highly-technical search and the search of what was displayed on the monitors of each of the computer system.


Let us look at the last page of the joint affidavit of arrest and it will show the same conclusion: that the operatives did not use any witness in the conduct of the search, to wit:


AFFIDAVIT OF ARREST 7.jpg



The only document that the PNP ACG showed is the Certification of Legally, Peacefully and Orderly Execution of Search Warrant that showed was not signed by persons expressly stating as the witnesses to the search warrant.   And those who signed are only the barangay kagawad and two barangay tanods of Barangay San Martin.


The same thing is true with Receipt of Evidence Confiscated, signed only by the barangay kagawad and barangay tanods stated above.


However, the statement “signed in the presence of” cannot be taken to men as having witnessed the execution of the search warrant.  What it means only is that the signatories only witnessed the signing on the inventory and nothing more.  It does not mean as having witnessed the execution of the search warrant.


In all the affidavits, the operatives did not say they used the lawful occupants as witnesses to the execution of the search.


In People vs Benny Go, GR No. 144639, September 12, 2003, penned by then Justice Conchita Carpio-Morales who is now the Ombudsman, the Supreme Court invalidated all the evidence gathered when the cops did not use the lawful occupants as witnesses to the search, to wit:


That the raiding party summoned two barangay kagawads to witness the search at the second floor is of no moment.  The Rules of Court clearly and explicitly establishes a hierarchy among the witnesses in whose presence the search of the premises must be conducted.  Thus, Section 8, Rule 126 provides that the search should be witnessed by “two witnesses of sufficient age and discretion residing in the same locality” only in the absence of either the lawful occupant of the premises or any member of his family. Thus, the search of appellant’s residence clearly should have been witnessed by his son Jack Go who was present at the time. The police officers were without discretion to substitute their choice of witnesses for those prescribed by the law.



ADDITIONAL POINTS



In the documentary evidence supporting their allegations, the PNP ACG operatives only presented printouts of photos of woman not naked and not showing sex organs, not showing obscene images, not showing any promotional message to recruit persons to be trafficked in.


These photos never showed any evidence there were live shows of sex organs or sex activities.  Chatting is no live show. It is a mere exchange of words and not exchange of images of sex organs.


            In all, it is overwhelming that there is no evidence supporting the allegations of the PNP ACG.



THE CONCLUSION



            As shown, it is very clear that the instant charges must be dismissed outright.



THE ENTRY OF APPEARANCE



            The undersigned attorney is formally entering appearance as the counsel of all the respondents in this case.


            So that it is requested that all orders, resolutions, notices and other processes in this proceeding be addressed to this counsel on his address written below.




THE PRAYER



WHEREFORE, it is prayed that all the charges filed be DISMISSED for utter lack of probable cause.


            Other reliefs just and equitable are also prayed for.   27 June 2016.  Manila for City of San Jose del Monte.


Causing Sabarre Castro Pelagio
Unit 1, 2368 JB Roxas St. corner Leon Guinto St., Malate, Manila
Emails: totocausing@yahoo.com, berteni.causing@gmail.com; Telephone No.: +632-3105521



By:



BERTENI CATALUÑA CAUSING, CE
IBP No. 972694/ 04-12-2015 / Manila IV
PTR No. 4889732 / 04-12-2015 / Manila
Roll No. 60944
MCLE No. IV – 0007338 issued 10 August 2012
(Valid from 15 April 2013 until 14 April 2016)
MCLE No. V – 0013036 issued 13 January 2016
(Valid from 15 April 2016 until 14 April 2019)

Cc:

PNP Anti-Cybercrime Group
Col. Bonny Serrano Ave.,
Camp Crame, Quezon City


EXPLANATION


Lack of time compelled the service by LBC courier on the PNP ACG.



BERTENI CATALUÑA CAUSING, CE

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