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HOW TO GET AWAY WITH DRUGS: A CRITIQUE ON THE LAPSES IN THE CHAIN OF CUSTODY OF DRUG EVIDENCE

By: Frances Ann A. Teves

I. Summary

This paper presents a critique in the process of handling dangerous drugs evidence (chain of custody) from the time immediately preceding the seizure until after the promulgation and judgment of the case and its significance in the development of the prosecution. The purpose of this study is to identify the loopholes in the provision of the law and provide suggestions for its enhancement in order for courts to render unbiased judgments. An overview on the chain of custody shall be provided based on section 21 of RA 9165, Supreme Court – decided cases citing lapses in the chain, and how it affects the decision of the court. This study aims to answer the problem: How effective are the rules on Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs under section 21 of RA 9165, in ensuring an errorless chain of custody and what can be done to prevent the link from being broken?

II. Objectives

1. Review Section 21 of RA 9165 providing for the Custody and Disposition of

Confiscated, Seized, and/or Surrendered Dangerous Drugs, etc.

2. Review cases decided by the Supreme Court acquitting an accused based on reasonable doubt in the procedural lapses in the chain of custody.

3. Identify and examine the role of the apprehending officers in the preservation of drug evidences.

4. Compare and evaluate how the Supreme Court construes drug cases where the admissibility of the evidence is in question.

5. Provide an analysis and suggestion on how to improve and amend the provision and give more teeth to the said provision under the Comprehensive Dangerous Drugs Act of 2002.

III. Review of Related Literature (Annotated Bibliography)

Calusa, P. (2015). Significance of “Chain of Custody” in prosecution for violation

of R.A. 9165. Retrieved from https://pipocalusa.wordpress.com/2015/06/16/ significance-of-chain-of-custody-in-prosecution-of-violation-of-r-a-9165/.

This article presents the importance of handling of evidence (also called as the chain of custody) in illegal drug cases which is the illegal drug itself and its impact on the fate of the prosecution’s success. The article gives an overview of the concept of chain of custody, how the Supreme Court decided various cases

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involving lapses in this procedure as required by law and the author’s corresponding analysis and conclusion thereto.

Galacio, G. (2013). Illegal Drugs: If Chain of Custody is Broken, Accused must be

Acquitted. Retrieved from http://famli.blogspot.com/2013/10/chainofcustody ruleillegaldrugs_8.html.

This article discusses the case of “People of the Philippines vs. Nicolas Gutierrez” G.R. No. 179213, September 3, 2009. The author poses the issue as stated, “The prosecution failed to show what happened to the shabu from the time the arresting officers gave it to the investigator up to its turnover for laboratory examination. The case records also do not show what happened to the shabu between its turnover by the chemist to the investigator and its presentation in court. Since the prosecution failed to prove that the shabu allegedly seized from Gutierrez was the same shabu presented in court, should Gutierrez be acquitted?” He likewise defines ‘corpus delicti’ and ‘chain of custody’ in his article and concludes with three questions and clarifications on this matter.

Requino, C. (2011). CHAIN OF CUSTODY IN DRUG CASES, WHEN BROKEN MAY

CAUSE AQUITTAL. Retrieved from: http://cgrlaw.blogspot.com/2011/09/ chain-of-custody-in-drug-cases-when.html. The article talks about the requisites of in the prosecution for sale of illegal drugs which requires evidence as corpus delicti of the crime committed. The author considered the nature of drugs and how important is the handling of the evidence in the prosecution of drug cases. "Considering the illegal drug's unique characteristic rendering it indistinct, not readily identifiable and easily open to tampering, alteration or substitution either by accident or otherwise, there is a need to comply strictly with procedure in its seizure and custody.” He also presents the case of People v. Pringas to discuss the role of apprehending officers in the chain of custody.

Yuvienco, M. (2011). COMMENTARY: Unchained Custody. Retrieved from: http:// www.interaksyon.com/article/12126/commentary-unchained-custody. The article asks the question, “Is this the root of the alarming number of dismissals of dangerous drugs cases?” The author points out her opinion about the frequent dismissal of drug cases due to findings of lapses in the chain of custody in the evidence. Yuvenio states her opinion to be a legally questionable exception, that is, “that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items.”

Balita.ph. (2011) DOJ Reviews RA 9165 for Possible Amendment. Retrieved from: http://balita.ph/2011/08/30/doj-reviews-ra-9165-for-possible-amendment/.

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According to this article, the Department of Justice (DOJ) is studying the possibility of amending Republic Act No. 9165, otherwise known as the "Comprehensive Dangerous Drugs Act of 2002", following the acquittal of two of the three members of the so-called "Alabang boys.” Also, De Lima said that they were particularly looking at the provision on the "chain of custody," which caused the Muntinlupa City Regional Trial Court (RTC) to acquit Richard Brodett and Jorge Joseph. "If you will read the court's decision, it zeroed in on the violated chain of custody of the drug evidence.” During an interview with De Lima, she said, “Our law enforcers here have difficulty following it. I think it should be relaxed a little perhaps do away with some of the requirements like the presence of the media and two elected public officials during the inventory immediately after the seizure."

OUTLINE OF THE PAPER

I. Introduction

There is an alarming number of dismissals on dangerous drugs cases due to broken chain of custody. In a prosecution for violation of the Dangerous Drugs Act (Republic Act No. 9165), the existence of the dangerous drug is a condition sine qua non for conviction. The dangerous drug is itself the very corpus delicti of the violation of the law. (People v. Guzon, G.R. No. 199901, October 9, 2013; People v. de Guzman, G.R. No. 186498, March 26, 2010). In both cases of illegal sale and illegal possession of dangerous drugs, the chain of custody over the dangerous drug must be shown to establish the corpus delicti. (People v. Perez, G.R. No. 199403, June 13, 2012) Hence, absent the seized illegal drug (or at least absent proper identification of the same during the trial), there is no crime to speak of.1 While a perfect chain of custody is almost always impossible to achieve, an unbroken chain becomes indispensable and essential in the prosecution of drug cases owing to its susceptibility to alteration, tampering, contamination and even substitution and exchange. Hence, every link must be accounted for.2 Therefore, this study aims to answer the problem, how effective are the rules on Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs under section 21 of RA 9165, in ensuring an errorless chain of custody and what can be done to prevent the link from being broken?

II. Objectives

1. Review Section 21 of RA 9165 providing for the Custody and Disposition of

Confiscated, Seized, and/or Surrendered Dangerous Drugs, etc.

2. Review cases decided by the Supreme Court acquitting an accused based on reasonable doubt in the procedural lapses in the chain of custody.

3. Identify and examine the role of the apprehending officers in the preservation of drug evidences.

1 Calusa, P. Significance of Custody 2 People v. Labag, G.R. No. 184954, 2011 Jan 10, 3rd Division

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4. Compare and evaluate how the Supreme Court construes drug cases where the admissibility of the evidence is in question.

5. Provide an analysis and suggestion on how to improve and amend the provision and give more teeth to the said provision under the Comprehensive Dangerous Drugs Act of 2002.

III. Methodology

A qualitative approach shall be used in this study. A comprehensive review of

primary sources such as section 21 of RA 9165 on Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, etc. shall be thoroughly conducted, including cases dismissed by the Supreme Court due to lapses in the chain of custody of evidence. Secondary sources mentioned in the review of related literature shall be made use of in the development of this study.

IV. Scope and Limitation

The study aims to identify where the link is broken in the chain of custody of drug case evidences and examine the effectiveness of the law directing the process. A discussion on the definition of Chain of custody shall be provided based on RA 9165, including who are the apprehending officers, the agencies concerned in the confiscation and storage of seized drugs, involved agencies in the conduct of inventory, and the whole process until the court orders for the destruction of the evidences. It will also tackle on the dismissed cases decided by the Supreme Court and the ruling thereon. This study will not embrace other sections of the republic act 9165 and is limited only to that mentioned previously.

V. Assertions/ Recommendations

a. The Implementing Rules and Regulations (IRR) of Section 21 of R.A. No. 9165

must be amended to add a third requisite which is to conduct “marking” in all cases (warrantless or not) at the place where they were seized. Legal Basis: Neither R.A. No. 9165 nor its implementing rules provide the rule on marking in cases of warrantless seizure. However, the Court in People v. Sanchez (G.R. No. 175832, October 15, 2008) held that consistent with the chain of custody rule, the marking of the illegal drugs seized without warrant must be done immediately upon confiscation and in the presence of the accused to ensure that they are the same items that enter the chain and are eventually the ones offered in evidence. Thus, in seizures covered by search warrants, the physical inventory and photograph must be conducted in the place where the search warrant was served. On the other hand, in case of warrantless seizures such as a buy-bust operation, the physical inventory and photograph shall be conducted at the nearest police station or office of the apprehending officer/team, whichever is practicable; however, nothing prevents the apprehending officer/team from immediately conducting the physical inventory and photography of the items at the place where

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they were seized, as it is more in keeping with the law’s intent of preserving their integrity and evidentiary value. (Beran, supra)3

b. Amend paragraph 1, section 21 of RA 9165 to be more lenient in the persons required to witness and sign the inventory conducted. The requirements under the law is impractical. Leila De Lima in an interview said, "If you will read the court's decision, it zeroed in on the violated chain of custody of the drug evidence. Our law enforcers here have difficulty following it. I think it should be relaxed a little perhaps do away with some of the requirements like the presence of the media and two elected public officials during the inventory immediately after the seizure," She also added, “What if the seizure was made in a remote area? We have to wait for these people before an inventory can be conducted, which is why we will propose that at least two disinterested members be allowed to witness the inventory immediately after seizure of the illegal drugs.”

c. Arresting officers who fail to perform their duties (physical inventory and taking of photograph), including the failure to explain why they did not follow the rule provided in Section 21(a), Article II, of the IRR of R.A. No. 9165 shall be held administratively liable. In the case of People v. Gutierrez, the Supreme Court ruled that Gutierrez should be acquitted because the arresting officers failed to comply with the rule on the custody and disposition of confiscated drugs (Section 21, Paragraph 1 of Article II of R.A. No. 9165). The officers did not physically inventory and take pictures of the shabu allegedly confiscated from Gutierrez. The officers also did not explain why they did not follow the rule.

d. DNA Testing of the evidence as a tool for ascertaining that accused has handled the drug evidence. DNA fingerprinting is a test to identify and evaluate the genetic information—called DNA (deoxyribonucleic acid)—in a person's cells. It is called a "fingerprint" because it is very unlikely that any two people would have exactly the same DNA information, in the same way that it is very unlikely that any two people would have exactly the same physical fingerprint. The test is used to determine inter alia, to solve crimes (forensic science). Blood, semen, skin, or other tissue left at the scene of a crime can be analyzed to help prove whether the suspect was or was not present at the crime scene. (Source: WebMd)

e. Encourage courts to be more vigilant in hearing the accused and witnesses

as drug cases are prone to corruption of public officers. “By the very nature of anti-narcotics operations, the need for entrapment procedures, the use of shady characters as informants, the ease with which sticks of marijuana or grams of heroin can be planted in the pockets or hands of unsuspecting provincial hicks, and the secrecy that inevitably shrouds all drug deals, the possibility of abuse is great.”4

3 Causa, P. Significance of Chain of Custody 4 Galacio, G. Chain of Custody Rule