Dangerous-Drugs-Cases-PNP LAW .pptx

LAW ABOUT DRUGS AND JURISPRUDENCE

1. DANGEROUS DRUGS CASES

2. Michael Ta ñ amor vs. People (G.R. No. 228132, March 11, 2020) A long line of cases decided by the Court has demonstrated that the exacting procedures for observation during a buy-bust operation more often rise or fall on either the adherence or non-compliance with the chain of custody rule .

3. Michael Ta ñ amor vs. People (G.R. No. 228132, March 11, 2020 ) The decisive requirements that bear upon the present case are the immediacy of the physical inventory and photographing of the seized items, and the protective, insulating presence of the three required witnesses .

4. SASP ALEXANDER Q. SUAREZ Michael Ta ñ amor vs. People (G.R. No. 228132, March 11, 2020) This Court finds that the arresting officers in this case failed to comply with these two requirements during the conduct of the buy-bust operation and the prosecution neglected to justify, let alone acknowledge these lapses, ultimately proving fatal to its case .

5. Michael Ta ñ amor vs. People (G.R. No. 228132, March 11, 2020) As to the site of the inventory and photographing, this requirement is depicted in greater detail in the internal rules and guidelines of the PNP. Under the 1999 PNP Drug Enforcement Manual , the strict procedure in the photographing and inventory of the seized items has been specified……

6. Michael Ta ñ amor vs. People (G.R. No. 228132, March 11, 2020) In addition, in the Revised PNP Manual on Anti-Illegal Drugs Operations and Investigation (AIDSOTF-Manual), the handling , custody and disposition of the seized illegal drugs are also prescribed ……

7. In general, the term Chain of Custody of Evidence refers to the links and order in which a piece of evidence has been handled, from the time of its confiscation to its presentation in court.   It is proven by a document or documents that establish the links, and by the testimonies of the persons and/or agencies who handled the evidence. Establishing the chain of custody of evidence is required in drug cases.   There is no room for doubt, and it must be established with certainty that the object being presented in court is the same object confiscated from the accused, if he or she was arrested through a valid warrantless arrest, or the same object found in his or her property which was subjected to a search through a validly issued Search Warrant . Chain of Custody

8. Purpose of the Chain of Custody Rule in Drug Cases   “To ensure that the drug specimen presented in court as evidence against the accused is the same material seized from him or that, at the very least, a dangerous drug was actually taken from his possession.” (People vs. Moner , G.R. No. 202206, March 5, 2018) .   “To establish the identity of the dangerous drugs with moral certainty, the prosecution must be able to account for each link of the chain of custody from the moment the drugs are seized up to their presentation in court as evidence of the crime.” (People vs. De Dios, G.R. No. 243664, January 22, 2020).

9. Requirements and Procedures to be Observed under the Chain of Custody Rule in Drug Cases (Sec. 21 of R.A. No. 9165; Guidelines on the Implementing Rules and Regulations of Section 21 of R.A. No. 9165, as Amended by R.A. No. 1640)  

10. Requirements and Procedures to be Observed under the Chain of Custody Rule in Drug Cases   Marking Inventory Documentation   These requirements and procedures apply to warrantless seizures as well as seizures through search warrants. However, in the case of seizures through search warrants, the marking, physical inventory and photographing shall be conducted at the place where the search warrant is served.

11. The apprehending team having initial custody and control of the drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, mark, inventory and photograph the same; The marking is the placing by the apprehending officer or the poseur-buyer of his/her initials and signature on the item/s seized.   In People vs. Santos, G.R. No. 223142, January 17, 2018 , it was held that “Marking” is the placing by the apprehending officer of some distinguishing signs with his/her initials and signature on the items seized. MARKING

12. In People vs. Villar, G.R. No. 215937, November 9, 2016 , it was held that “there is nothing in the Rules which require the police officer who marked the seized items to indicate the date, time and signature on the specimen to be submitted for examination.”   3.) The marking shall be done immediately, in the presence of the violator, at the place where the items were seized or at the nearest police station or nearest office of the apprehending officer/team, whichever is practicable.   MARKING

13. 4.) The physical inventory and photographing shall be conducted in the same nearest police station or nearest office of the apprehending officer/team, whichever is practicable.   5.) The physical inventory and photographing must be made in the presence of the following:   The accused or the person/s from whom such items were confiscated and/or seized , or his/her representative or counsel; An elected public official; and, A representative from the media or the National Prosecution Service (NPS); INVENTORY and PHOTOGRAPHING

14. 6.) The persons mentioned in no.5 shall be required to sign the copies of the inventory and be given a copy thereof. In case of their refusal to sign, it shall be stated “refused to sign” above their names in the certificate of inventory of the apprehending or seizing officer.   7.) Noncompliance with the 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 and custody over said items. Chain of Custody

15. 8.). The chain of custody of evidence shall indicate the time and place of marking, the names of officers who marked, inventoried photographed and sealed the seized items, who took custody and received the evidence from one officer to another within the chain, and further indicating the time and date every time the transfer of custody of the same evidence were made in the course of safekeeping until submitted to laboratory personnel for forensic laboratory examination. Chain of Custody

16. 9.) The chain of custody of the seized/confiscated items received from the apprehending officer/team, and examined in the forensic or crime laboratory shall be observed , where it shall document the chain of custody each time a specimen is handled, transferred or presented in court until its disposal, and every individual in the chain of custody shall be identified following the laboratory control and chain of custody form. Chain of Custody

17. 10) Any justification or explanation in cases of noncompliance with the requirements of Section 21(1) of RA No. 9165, as amended, shall be clearly stated in the sworn statements/affidavits of the apprehending/seizing officers, as well as the steps taken to preserve the integrity and evidentiary value of the seized/confiscated items. Chain of Custody

18. Links in the Chain of Custody The circumstances leading to the confiscation of drug evidence differ so that there may be variations in the chain. For example, there are instances when an investigating officer is involved in the chain. There are also instances when the arresting officer is different from the seizing officer. In some cases, the arresting officer is the same as the seizing officer. And in other cases, barangay tanods and civilians may also be involved. The point, however, is to show that from the time the drug evidence is seized to the time it is presented in court, the transfers were properly made and recorded in such a way that the chain remained unbroken. It is best practice to establish the links in chronological order for a better appreciation of the chain.

19. First - the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; Second - the turnover of the illegal drug seized by the apprehending officer to the investigating officer; Third - the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and Fourth - the turnover and submission of the marked illegal drug seized from the forensic chemist to the court.” People vs. Pablo Arposeple , et. al. (G.R. No. 205787, November 22, 2017)

20. The Supreme Court explained in this case that the first link primarily deals on the preservation of the identity and integrity of the confiscated items, the burden of which lies with the prosecution. The marking has a twin purpose, viz: first, to give the succeeding handlers of the specimen a reference, and second, to separate the marked evidence from the corpus of all other similar or related evidence from the moment of seizure until their disposition at the end of criminal proceedings, thereby obviating switching, "planting," or contamination of evidence. People vs. Pablo Arposeple , et. al. (G.R. No. 205787, November 22, 2017)

21. MANDATORY POLICY: 1. In the sworn statements/affidavits, the apprehending/seizing officers must state their compliance with the requirements of Section 21 (1) of R.A. No. 9165, as amended, and its IRR. 2. In case of non-observance of the provision, the apprehending/seizing officers must state the justification or explanation therefore as well as the steps they have taken in order to preserve the integrity and evidentiary value of the seized/confiscated items. People vs. Romy Lim G.R. No. 231989, September 4, 2018 

22. MANDATORY POLICY: 3. If there is no justification or explanation expressly declared in the sworn statements or affidavits, the investigating fiscal must not immediately file the case before the court. Instead, he or she must refer the case for further preliminary investigation in order to determine the (non) existence of probable cause. 4. If the investigating fiscal filed the case despite such absence, the court may exercise its discretion to either refuse to issue a commitment order (or warrant of arrest) or dismiss the case outright for lack of probable cause in accordance with Section 5, Rule 112, Rules of Court. People vs. Romy Lim G.R. No. 231989, September 4, 2018 

23. People vs. Teng Moner (G.R. No. 202206, March 5, 2018) We do not believe that the explainable deviations to the chain of custody rule demonstrated by the police officers involved in this case are reason enough to overturn the findings of the trial court judge , who personally observed and weighed the testimony of the witnesses during trial and examined the evidence submitted by both parties.

24. People vs. Dave Claudel (G.R. No. 219852, April 3, 2019) In this connection, this also means that the three required witnesses should already be physically present at the time of the conduct of the inventory of the seized items which, again, must be immediately done at the place of seizure and confiscation — a requirement that can easily be complied with by the buy-bust team considering that the buy-bust operation is, by its nature, a planned activity.

25. People vs. Alex Baluyot (G.R. No. 243390, October 5, 2020) Mere statements of unavailability of the witnesses given by the apprehending officers are not justifiable reasons for non-compliance with the requirement. This is because the apprehending officers usually have sufficient time , from the moment they received information about the alleged illegal activities until the time of the arrest, to prepare for the buy-bust operation that necessarily includes the procurement of three (3) witnesses. If one of the individuals invited refuses to participate as witness, the apprehending officers can still invite another individual to become a witness.

26. People vs. Jerome E. Cabrera, et. al. (G.R. No. 232072, January 12, 2021) It is evident from the foregoing that the insulating witnesses from the media, the DOJ, and the local government, were all absent during the apprehension of accused-appellants and the alleged seizure of the dangerous drugs at the house of ……. This is a violation of the mandatory requirement under Section 21 of R.A. No. 9165 that such witnesses must be present also during the seizure of the dangerous drugs to safeguard against the possibility of planting, contamination, or loss of the evidence .

27. Romeo Tumabini vs. People (G.R. No. 224495, February 19, 2020) When the drugs are seized pursuant to a search warrant , then the physical inventory and taking of photographs shall be conducted at the place where the search warrant was served. When the drugs are seized pursuant to a buy-bust operation or a warrantless seizure , then these can be conducted at place of operation or seizure, or at the nearest police station or at the nearest office of the apprehending team.

28. Jessie Tolentino vs. People (G.R. No. 227217, February 12, 2020) INSTANCES WHEN ABSENCE OF THE REQUIRED WITNESSES MAY BE JUSTIFIED   Media representatives are not available at that time or that the police operatives had no time to alert the media due to the immediacy of the operation they were about to undertake, especially if it is done in more remote areas; The police operatives, with the same reason, failed to find an available representative of the National Prosecution Service;

29. Jessie Tolentino vs. People (G.R. No. 227217, February 12, 2020) INSTANCES WHEN ABSENCE OF THE REQUIRED WITNESSES MAY BE JUSTIFIED   The police officers, due to time constraints brought about by the urgency of the operation to be undertaken and in order to comply with the provisions of Article 125 of the Revised Penal Code in the timely delivery of prisoners, were not able to comply with all the requisites set forth in Section 21 of R.A. No. 9165. Their attendance was impossible because the place of arrest was a remote area;

30. Jessie Tolentino vs. People (G.R. No. 227217, February 12, 2020) INSTANCES WHEN ABSENCE OF THE REQUIRED WITNESSES MAY BE JUSTIFIED   Their safety during the inventory and photograph of the seized drugs was threatened by an immediate retaliatory action of the accused or any person/s acting for and in his/her behalf; The elected official themselves were involved in the punishable acts sought to be apprehended;

31. Jessie Tolentino vs. People (G.R. No. 227217, February 12, 2020) INSTANCES WHEN ABSENCE OF THE REQUIRED WITNESSES MAY BE JUSTIFIED   Earnest efforts to secure the presence of a NPS or media representative and an elected public official within the period required under Article 125 of the Revised Penal Code prove futile through no fault of the arresting officers, who face the threat of being charged with arbitrary detention; Time constraints and urgency of the anti-drug operations, which often rely on tips of confidential assets, prevented the law enforcers from obtaining the presence of the required witnesses even before the offenders could escape.

32. Glomer S. Climaco vs. People (G.R. No. 250758, August 19, 2020) The non-presentation as witnesses of other persons such as the investigator and the receiving clerk of the PNP Regional Crime Laboratory Office is not a crucial point against the prosecution. There is nothing in R.A. No. 9165 or in its implementing rules, which requires each and every one who came into contact with the seized drugs to testify in court.

33. Rule on the Destruction and Disposal of Seized Dangerous Drugs, Other Substances, and Instruments Prior to the Filing of an Information (A.M. No. 21-02-01-SC)

34. PRIOR TO THE FILING OF AN INFORMATION A. With Search Warrant   The application for the destruction and disposal of the seized dangerous drugs and related paraphernalia shall be filed by – Who – 1. Law enforcement agent or 2. Prosecutor Where - Before the court which issued the search warrant immediately after the seizure.

35. B. Without Search Warrant The application for the destruction and disposal of the seized dangerous drugs and related paraphernalia shall be filed by – Who – 1. Law enforcement agent or 2. Prosecutor Where - Before the court which has territorial jurisdiction over the case and the place where the dangerous drugs, other substances, and instruments were found and seized.

36. With or without search warrant, the compliance with Sec. 21(1), Article II of R.A. 9165, as amended by R.A. 10640 is required- Proper documentation Conduct of physical inventory Photographs of the seized items.

37. A Judge shall conduct an ocular inspection of the seized articles within 72 hours from the time the application is filed if – The seized drugs amount to 1 kilogram or more, or If the seized instruments and equipment cannot be physically brought to court.

38. Within 24 hours from the conduct of the ocular inspection- The court shall order the retention of a representative sample of the seized drugs which shall be kept in the forensic laboratory of the operating unit which seized the drugs. In cases where the seized drugs are physically brought to the court, the court shall order the retention of the representative sample of the seized drugs also within 24 hours.

39. Witnesses required in the taking of the representative samples:   The person from whom the items were seized; or his or her representative; or counsel; The elected public official who witnessed the physical inventory and photographing of the seized drugs; An official from the National Prosecution Service or a representative from the media; Law enforcement agent/s who seized the drugs; and Forensic laboratory personnel.

40. After the taking of representative samples – The court shall order the immediate destruction and disposal of the remaining seized drugs or instruments and equipment. Prior to the actual destruction and disposal, the seized drugs shall be immediately sent and delivered to the Drug Forensic Center of the Philippine Drug Enforcement Agency (PDEA). The above cited witnesses to the taking of the representative sample shall also witness the actual destruction of the seized drugs and instruments.

41. The absence of the person from whom the items were seized, or his or her representative or counsel during the actual shall not affect the integrity and identity of the seized dangerous drugs.

42. The applicant shall file a report to the court – When - within 24 hours from the actual destruction and disposal of the seized drugs and items. Attachments - Photographs and video recordings of the destruction and disposal process.

43. CRIMINAL INFORMATION FILED ALREADY   Criminal information is filed already before the court other than the court that issued the search warrant or order the destruction and disposal – The records of the search warrant and order for destruction and disposal, including attachment, shall be consolidated with the court where the criminal information is filed.

44. In cases where no search warrants were issued, the criminal information shall be filed before the court that issued the order for destruction and disposal.

45. PLEA BARGAINING

46. PLEA BARGAINING   It is a process where the accused usually pleads guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that for the graver charge. [ Black’s Law Dictionary 1037 (5th ed. 1979)]  

47. PLEA BARGAINING   In order for Plea Bargaining to be valid , the consent of the Public Prosecutor representing the State is MANDATORY .

48. PLEA BARGAINING   Offer for plea bargaining is not only limited to the pre-trial stage, but may be entertained by the trial prosecutor at any stage of the proceedings (including trial proper) before rendition of judgment.

49. Nurullaje Sayre vs. Hon. Dax Gonzaga Xenos (G.R. Nos. 244413 and 244415-16, February 18, 2020) A plea bargain still requires mutual agreement of the parties and remains subject to the approval of the court. The acceptance of an offer to plead guilty to a lesser offense is not demandable by the accused as a matter of right but is a matter addressed entirely to the sound discretion of the trial court.

50.   Nurullaje Sayre vs. Hon. Dax Gonzaga Xenos (G.R. Nos. 244413 and 244415-16, February 18, 2020) The use of the word “MAY” in Sec 2, Rule 116 of the Rules of Court signifies that the trial court has discretion whether to allow the accused to make a plea of guilty to a lesser offense. Moreover, plea bargaining requires the consent of the accused , offended party , and the prosecutor .

51. Nurullaje Sayre vs. Hon. Dax Gonzaga Xenos (G.R. Nos. 244413 and 244415-16, February 18, 2020)   The DOJ’s Department Circular No. 27 did not violate the rule-making authority of the Court, as it merely serves as an internal guideline for prosecutors to observe before they may give their consent to the proposed plea bargaining.

52. People vs. Edwin Reafor (G.R. No. 247575, November 16, 2020)   A plea of guilty to a lesser offense, without the consent of the prosecution , lacks one of the requisites of a valid plea bargain, rendering the same VOID . Hence, any judgment based on a void plea bargaining is also void ab initio and cannot be considered to have attained finality for the simple reason that a void judgment has no legality from its inception.

53. People of the Philippines vs. Naci Borras (G.R. No. 250295, March 15, 2021)   The conformity of the prosecutor to the proposed plea bargaining in drugs cases is not optional, nay, to be disregarded.   The prosecutor who represents the government is duty bound to defend the public interests, threatened by crime, to the point that it is as though he or she were the person directly injured by the offense. Viewed in this light, the consent of the offended party, i.e. the State, will have to be secured from the prosecutor who acts on its behalf.

54. People vs Edgar Majingcar , et. al (G.R. No. 249629, March 15, 2021)   In drug cases where there is no private offended party, the consent of the prosecutor is the operative act which vests discretion upon the court to allow or reject the accused's proposal to plead guilty to a lesser offense. Thus, where this consent is withheld, no such discretion gets vested in the court.

55. Procedural Requirements for Allowable Plea under DOJ Department Circular No. 27:   All offers for plea bargaining must be initiated in writing . Request for the court to order a drug dependency assessment . Offer for plea bargaining may be entertained at any stage . Express objection in open court for plea bargaining going beyond DOJ guidelines. All offers for plea bargaining should always be with the approval of the Chief of Office .

56. Formal Motion   All offers for plea bargaining must be initiated in writing by way of a formal motion filed by the accused in court. Thus, if an accused verbally moves for plea bargaining, prosecutor should move that they make their offer in writing.

57. Drug Dependency Examination   Upon receipt of a proposal, the trial prosecutor shall request the court to order that a drug dependency assessment be administered on the accused pursuant to A.M. 18-03-16-SC .

58. Drug Dependency Examination   A drug dependency examination is a procedure conducted by a DOH-accredited physician to evaluate the extent of drug abuse of a person and to determine whether he/she is a drug dependent or not, which includes history taking, intake interview, determination of the criteria for drug dependency, mental and physical status, and detection of dangerous drugs in body specimens through laboratory procedures. (Dangerous Drugs Board Regulation No.3 Series of 2007)   The report from the drug dependency assessment shall be a requirement for the prosecution before it consents to plea bargaining.

59. Reject Offer - Vigorous Objection On Record   When the court would insist on approving a plea bargaining that is contrary or goes beyond the DOJ guidelines, the trial prosecutor should interpose his/her vigorous objection in open court and manifest that the state does not give its consent to plea bargaining.

60. Memorandum if After Trial on Merits   Should offer be made after the trial on the merits, the trial prosecutor should prepare a Memorandum to be submitted to his/her Chief Prosecutor discussing whether or not the offer should be accepted and the reasons thereto.  

61. PLEA BARGAINING   As regards plea bargaining for violation of Section 5 with respect to shabu et.al . (less than 5 grams) and marijuana (less than 300 grams), acceptable plea bargaining for the prosecution will be under Section 11, par. 3.

62. PLEA BARGAINING   As regards offer for plea bargain for violation of Section 11 involving Marijuana (300 grams or more), prosecution will reject the proposed plea outright and continue with the proceedings.

63. PLEA BARGAINING   As regards offer for plea bargain for violation of Section 11 involving shabu, opium, morphine, heroin, cocaine, et. al. except Marijuana (5 grams or more), prosecution will reject the proposed plea outright and continue with the proceedings.  

64. PLEA BARGAINING   As regards plea bargaining for violation of Section 7 , the prosecution will only allow plea bargaining for visitors of drug den. The acceptable plea bargaining for the prosecution will be under Section 12 or Section 15. For employees of the drug den , the prosecution cannot give its consent to any plea bargaining.

65. PLEA BARGAINING   As regards plea bargaining for violation of Section 13 with respect to shabu et. al. (less than 5 grams) and marijuana (less than 300 grams), the acceptable plea bargaining for the prosecution will be under Section 11, par.3. With respect to shabu, et. al. (5 grams or more) or marijuana (300 grams or more), the prosecution cannot give its consent to any plea bargaining.  

66. PLEA BARGAINING   In cases where minor is charged under Republic Act 9165 as amended, the minor shall be proceeded against pursuant to the provisions of Republic Act No. 9344 as amended.

67. OCA CIRCULAR NO. 80-2019   The courts should not allow plea bargaining if the objections are valid and supported by evidence to the effect that the offender is under the following circumstances: Recidivist, Habitual offender, Known in the community as a drug addict and troublemaker, One who has undergone rehabilitation but had a relapse, or has been charged many times, and When the evidence of guilt of charge is strong.  

68. SASP ALEXANDER Q. SUAREZ THANK YOU!