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:
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:
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:
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:
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:
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.
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:
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
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.
Comments