problem areas in R.A. 9165

8/10/2019 problem areas in R.A. 9165

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By:


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The state acknowledges that drug use in the counis one of todays more serious social ills, and in ordsafeguard the integrity of its territory and the well-beingits citizenry particularly the youth, for the harmful effectsdangerous drugs on their physical and mental well-bei

and to defend the same against acts or omissiodetrimental to their development and preservation, this lawas enacted (Sec. 2, 1 st par., R.A. 9165).


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The Problem Areas in R.A. 9165:

Chain of Custody RulePresumption of Regularity in the Performance ofOfficial DutiesPreservation of the Integrity and Evidentiary Value o

the Confiscated ItemsPhilippines Drug and Enforcement Agency (PDEA)CoordinationCircumstance of ConspiracyConstructive Possession


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The Problem Areas in R.A. 9165: continued

Buy-Bust OperationRight of the Accused to Remain SilentNon-Presentation of the Poseur Buyer & Buy-BustMoney

Doctrine of Fruit of Poisonous Tree The Defense of Denial and Frame-Up in Drug CasesConclusion


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Chain of Custody Rule

Chain of Custody means the duly rauthorized movements and custody of seized drugscontrolled chemicals or plant sources of dangerous drugslaboratory equipment of each stage, from the time

seizure/confiscation to receipt in the forensic laboratorysafekeeping to presentation in court for destructionvs. Dumaplin, G.R. No. 198051, December 10, 2012, SCRA 631).


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Such record of movements and custody of seiitem shall include the identity and signature of the perswho held temporary custody of the seized item, the daand time when such transfer of custody were made in thcourse of safekeeping and use in court as evidence, anthe final disposition (Section 1(b) of Dangerous Board Regulation No. 1, Series of 2002).



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Under the foregoing rules, the marking immediaafter seizure is the starting point in the custodial link, because succeeding handlers of the prohibited drugs or relatitems will use the marking as reference. It further servessegregate the marked evidence from the corpus deliother similar and related evidence from the time they are seiz

from the accused until they are disposed of at the end of tcriminal proceedings, obviating switching, plancontamination of evidence. It is crucial in ensuring the integof the chain of custody. (People vs. Guzon, G.R. No. 1October 9, 2013)



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Presumption of Regularity in The Performance of Official Duties

In People vs. Collado (G.R. No. 185719, Jun2013, citing People v. Capalad, G.R. No. 184174, Ap2009, 584 SCRA 717, 727, it was held that mere allegand self-serving statements will not overcome presumption of regularity in the performance of offduties accorded to police officers. There must be a showof clear and convincing evidence to successfully rebut presumption.


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In cases involving violations of R.A. 9165,testimony of police officers as prosecution witnessesgiven more weight because it is presumed that thperformed their duties in a regular manner. In tabsence of evidence suggesting ill motive on the part the police officers or deviation from the regperformance of their duties, the presumption will sta(People vs. Sabadlab, GR No. 186392, 18 January 2012)

Presumption of Regularity in The Performance of Official Duties


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Preservation of the Integrity and Evidentiary Value of the

Confiscated Items

Corpus delicti is the body of substance of the crime in its primary sense, refers to the fact that a crime has beenactually committed. The dangerous drug itself the verydelicti of the violation of the law prohibiting the possession dangerous drug.


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It has been held that a non-compliance with regulations is not necessarily fatal to render anarrest illegal or the items confiscated from him inadmissas evidence of his guilt, for what is of the utmost importanis the preservation of the integrity and the evidentiary va

of the confiscated items that will be utilized in determination of his guilt or innocence (People vs. GR No. 177320, 22 February 2012).


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Lapses in the strict compliance with the requiremeof Section 21 of R.A. No. 9165 must be explained in termstheir justifiable grounds, and the integrity and evidentivalue of the evidence seized must be shown to have bepreserved (People vs. Beran G.R. No. 203028, January2014) . However, non-compliance with Section 21 does

necessarily render the arrest illegal or the items seiinadmissible (People v. Pringas, G.R. No. 175928, Augus2007, 531 SCRA 828, 842-843). What is essential is thintegrity and evidentiary value of the seized items preserved which would be utilized in the determination of guilt or innocence of the accused.

Preservation of the Integrity and Evidentiary Value of the Confiscated Items


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The provision does not, by so saying, makeparticipation a condition sine qua non for every operation. After all, a buy-bust is just a form of aflagrante arrest sanctioned by Section 5, Rule 113 of

Rules of the Court, which police authorities may rightresort to in apprehending violators of Republic Act No. 9in support of the PDEA. A buy-bust operation isinvalidated by mere non-coordination with the PDEA vs. Arriola, GR No. 187736, 8 February 2012).

Philippines Drug Enforcement Agency (PDEA) Coordination



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Said provision does not invalidate operationsaccount of the law enforcers failure on the part of thenforcers to seek the authority of the PDEA priorconducting a buy-bust operation. This silence cannot interpreted as a legislative intent to make an arrest withou

the participation of PDEA illegal or evidence obtapursuant to such an arrest inadmissible (PeFigueroa, GR No. 186141, 11 April 2012; People vs. G.R. No. 192913, June 13, 2013).



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To repeat, in a prosecution for illegal saldangerous drugs, like shabu , what is important is ththat the poseur -buyer received shabu from the aappellant and the same was presented as evidence in cou(People v. Requiz, 376 Phil. 750, 760 [1999]) wprosecution in this case was able to do so. As has bepreviously discussed, all the elements of illegal saleshabu were adequately proven and established by prosecution.



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In People v. Roa (G.R. No. 186134, 6 May 2010SCRA 359) , it was held that, coordination with the PDnot an indispensable requirement before police authorimay carry out a buy-bust operation. While it is true Section 86 of Republic Act No. 9165 requires the Nat

Bureau of Investigation, PNP and the Bureau of Custommaintain "close coordination with the PDEA on all related matters," the provision does not, by so saying, maPDEA's participation a condition sine qua non for e

bust operation .



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Circumstance of Conspiracy

The Supreme Court said, however, that circumstance of conspiracy is not appreciated in the criof possession of dangerous drugs under R.A. 9165. Tcrime of conspiracy to commit possession of dangerdrugs does not exist (Posiquit vs. People, GR No. 116 January 2012).


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Constructive Possession

However, the Supreme Court elucidated thatmeaning of the word having possession ofconstructive possession. Although the owner of the dis not in actual possession of the drug, but if the d

remains under his control and management, he is deemed to be in possession of the same (PPosada, GR No. 194445, 12 March 2012).


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Citing United States v. Juan (Phil. 105 [191meaning of the words "having possession of constructive possession, that is, "the relation between towner of the drug and the drug itself when the ownernot in actual physical possession, but when it is still unhis control and management and subject to disposition."

Constructive Possession


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Buy-Bust Operation

A buy-bust operation is a legally effective proven procedure, sanctioned by law, for apprehendidrug peddlers and distributors (People v. MantalabNo. 186227, July 20, 2011, 654 SCRA 188, 199, ciPeople v. Chua Uy, 384 Phil. 70, 85 [2000]).


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A buy-bust operation is one form of entrapmemployed by peace officers as an effective way apprehending a criminal in the act of committing offense, and must be undertaken with due regard fconstitutional and legal safeguards (People vs. JoNo. 192913, June 13, 2013).

Buy-Bust Operation


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Right of the Accused to Remain Silent

In People v. Policarpio (158 SCRA 88 [1988]),held that such practice of inducing suspects to sign receipfor property allegedly confiscated from their possessionunusual and violative of the constitutional right to remsilent. The Inventory Receipt and related papers signed the accused are inadmissible for being violative of tright to remain silent and at the same time an indication the irregularity in the manner by which the searching teaconducted the search of the residence of the accused.


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Non-Presentation of the Poseur Buyer & Buy-Bust Money

In People v. Tadepa (314 Phil. 231 [1995]),Court explained that the failure of the prosecution present in court the alleged poseur-buyer is fatal to case.


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The Court held in People v. Polizon,(G.R. No.

September 18, 1992, 214 SCRA 56) that tpresentation of the alleged poseur-buyer, weakens tprosecutions evidence. The police was not privy tconversation between poseur buyer and the accused. Hwas merely watching from a distance and he only saw actions of the two, thus, the police had no persoknowledge of the transaction that transpired between tposeur and the accused.



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Since the accused insisted that he was forced by poseur buyer to buy the marijuana, it was essential ththe poseur buyer should have been presented to rebaccuseds testimony.



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The Court further held that it becomes incumbeupon the prosecution to rebut appellants allegapresenting the alleged poseur-buyer. This it failed to dgiving rise to the presumption that evidence wilfusuppressed would be adverse if produced (Rule 135 [e]).



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The Court also ruled in People v. Olaes (G76547, July 30, 1990, 188 SCRA 91) , that thpresentation of the poseur-buyer was fatal to tprosecutions case, since the alleged sale transachappened inside the accuseds house; hence, isupposedly witnessed only by the poseur-buyer, who thewas the only person who had personal knowledge of thtransaction.



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While the Court, in several instances, has affirman accuseds conviction notwithstanding the presentation of the poseur-buyer in the buy-buoperation, such failure is excusable only when the poseubuyers testimony is merely corroborative, there be

some other eyewitness who is competent to testify on thsale transaction (People v. Ambrosio, 471 Phil[2004]).



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S imilarly, the absence of marked money does not createa hiatus in the evidence for the prosecution provided that theprosecution has adequately proved the sale (PBongalon , 425 Phil. 96, 117 [2002]) .



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Doctrine of Fruit of Poisonous Tree

The doctrine of the "fruit of the poisonouwhich refers to the principle that the confiscated iteminadmissible in evidence consistent with Article III, Sec3(2) of the 1987 Constitution which states, "any eviden

obtained in violation of this or the preceding section shbe inadmissible for any purpose in any proceediHowever, the fruit of the poisonous tree doctrinapply in the face of a valid buy-bust operation (PRebotazo, G.R. No. 192913, June 13, 2013).


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The failure to observe the rights of the accu

coupled with some irregularities attending the warrantlesearch, would compel this court to apply the exclusionrule and declare the seized articles inadmissibleevidence. This must necessarily be so since it is

court's solemn duty to be ever watchful for constitutional rights of the people, and against astealthy encroachments thereon (People v. FranciscNo. 129035, August 22, 2002 citing Boyd vs. U.S., U.S. 616 (1886]).



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Emphatically, in the case United Laboratorievs. Isip, etc. (G.R. No. 163858, June 28, 2005, citUnited States v. Gray, 484 F.2d 352 [1973]), in the application of the plain view doctrine, the SupreCourt said, It is a recognition of the fact that wexecuting police officers come across immediincriminating evidence not covered by the warrant, thshould not be required to close their eyes to it, regardleof whether it is evidence of the crime they are investigatior evidence of some other crime. It would be needless

require the police to obtain another warrant



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In Malacat vs. C.A. and People (G.R. No. 123December 12, 1997), it was held that there must first lawful arrest before a search the process cannreversed saying that in a search incidental to a lawarrest, the precedent arrest determines the validity of th

incidental search, said otherwise, the law requires ththere first be a lawful arrest before a search can be made



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There is therefore a blatant violation of the rig

of the accused solemnly guaranteed in Section 2 of ArtiIII of the Constitution. Allowing this kind of arrest subsequent search would certainly violate the privacy the accused as guaranteed by the constitutio

Consequently, the exclusionary rule under Section 3 (2) Article III of the Constitution which provides tevidence obtained in violation of this or the precedsection shall be inadmissible for any purpose in proceeding, applies.



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The Defense of Denial and Frame-Up in Drug Cases

The defense of denial of the accused in drug casis understandable. It is to escape liability. In PeLayos (60 Phil 760, 766), it was held that, Inatural tendency of every transgressor with perhaps ver

rare exceptions, to acquit himself while he can do sfrom all liability that might arise from his act, or at leamitigate in the eyes of the law and of his fellowme


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Also, the court is aware of the principle as held

Cacao vs. People (G.R. No. 180870, January 22, 201that denial is intrinsically a weak defense commonly usis drug related cases. Further, in another case, it waheld that in drug related cases the accused would usual

and conveniently raise the defense of denunsubstantiated by clear and strong evidence, in attempt to avoid criminal liability.



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Even if the accused would raise the defenseframe-up, it must necessarily fail because it has beconsistently ruled that frame-up is a banal defense those accused in drug-related cases that is viewed widisfavor. Like the defense of alibi, frame-up is

allegation that can easily be concocted.



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Notwithstanding the foregoing legal mandate the evidentiary value of denial and frame-up, thedefenses however, assumes primacy when the case fothe prosecution is at the margin of sufficiency establishing proof beyond reasonable doubt (Pe

Anabe, G.R. No. 179033, September 6, 2010).



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Conclusion

The fact that the proliferation of dangerous druis indeed a threat to peace, stability and security society, yet the zealousness of our police authorities anlaw enforcement agencies in curbing the danger whirightly deserved commendation, should follow a cavethat the exercise of police authority should be done harmony with procedural rules and consistent withpersons fundamental rights. Stated otherwise, nobility of the intention should not be the only prima

consideration in the enforcement of the law


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Ultimately and for emphasis, it is not the primaduty of a court of justice to convict an accused buequally important is the role of the court to see to it thatones basic rights are duly recognized and protected. Astated earlier, this must necessarily be so since it is thecourt's solemn duty to be ever watchful for thconstitutional rights of the people, and against anstealthy encroachments thereon.

Conclusion


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Documents

problem areas in R.A. 9165