Posted by: Elmer Brabante | June 20, 2008

Special Penal Laws, Part 5


PERSONS WHO ARE SUBJECT  TO THE MANDATORY DRUG TESTING

 

a.)  Applicants for driver’s license – no driver’s license shall be issued or renewed to nay person unless he/she presents a certification that he/she has undergone a mandatory drug test and indicating thereon that he/she is free from the use of dangerous drugs.

b.)  Applicants for firearm’s license and permit to carry firearms outside of residence. – All applicants for firearms license and permit to carry firearms outside of residence shall undergo a mandatory drug test to ensure that they are free from the use of dangerous drugs; Provided, That all persons who by the nature of their profession carry firearms shall undergo drug testing;

c.)   Officers and employees of public and private offices. – Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the company’s work unless and regulation, which shall be borne by the employer, for purposes of reducing the risk in the workplace. Any officer or employee found positive for the sue of dangerous drug shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provision Article 282 of the Labor Code and pertinent provisions of the Civil Service Law.

d.)  Officers and members of the military, police and other law enforcement agencies. – Officers and members of the military, police and other law enforcement agencies shall undergo an annual mandatory drug test.

e.)  All persons charged before the prosecutor’s office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall have undergo a mandatory drug test.

f.)  All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test.

 

CONFIDENTIALITY OF RECORDS UNDER THE COMPULSARY SUBMISSION PROGRAM

 

                The records of a drug dependent who was rehabilitated and discharged from the Center under the compulsory submission program, or who was charged for violation of Section 15 of this Act, shall be covered by Section 60 of this Act (R.A. 9165). However, the record of a drug dependant who was not rehabilitated, or who escaped but did not surrender himself/herself within the prescribed period, shall be forwarded to the court and their use shall be determined by the court, taking into consideration public interest and the welfare of the drug dependant (Sec. 64) 

 

DISCHARGED AFTER COMPLIANCE WITH CONDITIONS OF SUSPENDED SENTENCE OF A FIRST-TIME MINOR OFFENDER

 

If the accused first time minor offender under suspended sentence complies with the applicable rules and regulation of the Board, including confinement in a Center, the court, upon a favorable recommendation of the Board for a final discharge of the accused, shall discharge the accused and dismiss all proceedings.

                Upon the dismissal of the proceedings against the accused, the court shall enter an order to expunge all official records, other than the confidential record to be retained by the DOJ relating to the case. Such an order, which shall be kept confidential, shall restore the accused to his/her status prior to the case. He/she shall not be held thereafter to be guilty of perjury or of concealment or misrepresentation by reason of his/her failure to acknowledge the case or recite any fact related therto in response to any inquiry madeof him for any purpose (Sec. 67)

 

 

THE DANGEROUS DRUGS BOARD AND  PHILIPPINE DRUG ENFORCEMENT AGENCY

 

 The Dangerous Drug Board

 

A. Function

                 The Dangerous Drug Board shall be the policy-making and strategy formulating body in the planning and formulation of policies and programs on drug prevention and control. (Sec. 77)

 

B. Composition

                 Under R.A. 6424 as amended, the Dangerous Drug board was composed of seven ex officio members as follows: (a) The Minister of Health or his representative; (b) the Minister of Justice or his representative; (c) The Minister of National Defense or his representative; (d) The Minister of Education and Culture or his representative; (e) The Minister of Finance or his representative; (f) The Minister of Social Service and Development or his representative; and (g) The Minister of Local Government or his representative (Sec. 35 Art. 8, R.A. 6424)

                The Minister of Health shall be the Chairman of the Board and the Director of the National Bureau of Investigation shall be the permanent consultant of the Board.

                Under Section 78 of R.A. 9165, the membership of the Dangerous Drugs Board was expanded to seventeen (17) members, three (3) of which are permanent members, twelve (12) shall be in ex officio capacity, and the remaining two (2) shall be regular members.  

                The three (3) permanent members, who shall possess At least seven-year training andexperience in the field of dangerous drugs andin any of the following fields: in law, medicine, criminology, psychology or social work, shall be appointed by the President of the Philippines. The President shall designate a  Chairman, who shall have the rank of a secretary from among the three (3) permanent members who shall serve for six (6) years. Of the two (2) other members, who shall have the rank of undersecretary, one (1) shall serve for four (4) and the other for two (2) years. Thereafter, the person appointed to succeed such members shall hold office for a term of six (6) years and until their successors shall have been duly appointed and qualified.

                The other twelve (12) members who shall be ex officio members of the Board are the following: (1) Secretary of the Department of Justice or his/her representative; (2) Secretary of the Department of Health or his/her representative; (3) Secretary of the Department of National Defense or his/her representative; (4) Secretary of the Department of Finance or his/her representative; (5) Secretary of the Department of Labor and Employment or his/her representative; (6) Secretary of the Department of Interior and Local Government or his/her representative; (7) Secretary of the Department of Social Welfare and Development or his/her representative; (8) Secretary of the Department of Foreign Affairs or his/her representative; (9) Secretary of the Department of Education or his/her representative; (10) Chairman of the Commission of Higher Education or his/her representative; (11) Chairman of the National Youth Commission; and (12) Director General of the Philippine Drug Enforcement Agency.

                Cabinet secretaries who are members of the Board may designate their duly authorized and permanent representatives whose rank shall in no case be lower than undersecretary.

                The two (2) regular members shall be as follows: (a) The President of the Integrated Bar of the Philippines; and (b) The chairman or president of a non- chairman or president of a non- chairman or president of a non-government organization involved in dangerous drug campaign to be appointed by the President of the Philippines.

 

The Philippine Drug Enforcement Agency (PDEA)

 

 A.  Functions

     Carry out the provision of the Dangerous Drug act of 2002. The Agency shall served as the implementing arm of the Dangerous Drug Board, and shall be responsible for the efficient and effective law enforcement of all provisions of any dangerous drug and/or controlled precursor and essential chemicals as provided for in the Law. (Sec. 82). The existing Secretariat of the National Drug Law Enforcement and Prevention Coordinating Center as created by Executive Order No. 61 is hereby modified and absorbed by the PDEA (Sec. 83, R.A. 9165)

 

B.) Powers and Duties

       a.) Implement or cause the efficient and effective implementation of the national drug control strategy formulated by the Board thereby carrying out a national drug campaign program which shall include drug law enforcement, control and prevention campaign with the assistance of concerned government agencies;

      b.) Undertake the enforcement of the provision of article II of this Act relative to the unlawful acts and penalties involving any dangerous drug and/or controlled precursor and essential chemical and investigate all violators and other matters involved in the commission of any crime relative to the use, abuse or trafficking of any dangerous drug and/or controlled precursor and essential chemicals as provided for in this Act and the provisions of Presidential Decree No. 1619;

     c.)   Administer oath, issue subpoena and subpoena duces tecum relative to the conduct of investigation involving violation of this Act;

      d.) Arrest and apprehend as well as search all violators and seize or confiscate, the effects or proceeds of the crime as provided by law and take custody thereof, for this purpose the prosecutors and enforcement agents are authorized to possess firearms, in accordance with the existing laws;

     e.) Take charge and have custody of all dangerous drugs and/or controlled precursors and essential chemicals seized, confiscated or surrendered to any national, provincial or local law enforcement agency; if no longer needed for purposes of evidence in court.

     f.)  Establish forensic laboratories in each PNP office in every province and city in order to facilitate action on seized or confiscated drugs; thereby hastening its destruction without delay;

     g.) Recommend to the DOJ the forfeiture of properties and other assets of persons and/or corporations found to be violating the provisions of this Act and in accordance with the pertinent provisions of the Anti-Money Laundering Act of 2002.

     h.) Prepare for prosecution or cause the filing of appropriate criminal and civil cases for violation of laws on dangerous drugs, controlled precursors and essential chemicals, and other similar controlled substance, and assist, support and coordinate with other government agencies for the proper and effective prosecution of the same;

     i.)  Monitor and if warranted by circumstances, in coordination with the Philippine Postal Office and the Bureau of Customs, inspect all air cargo packages, parcels and mails in the central post office, which appear from the packages and address itself to be a possible importation of dangerous drugs and/or controlled precursors and essential chemicals, through on-line or cyber shops via the internet or cyberspace;

     j.)  Conduct eradication programs to destroy wild or illegal growth of plants from which dangerous drugs may be extracted;

     k.) Initiate and undertake the formation of a nationwide organization which shall coordinate and supervise all activities against drug abuse in every province, city, municipality and barangay with active and direct participation of all such local government units and non-governmental organizations, including the citizenry, subject to the provisions of previously formulated programs of action against dangerous drugs;

     l.)  Establish and maintain a national drug intelligence system in cooperation with law enforcement agencies, other government agencies/offices and local government units that will assist in its apprehension of big time drug lords;

    m.) Established and maintain close coordination, cooperation and linkages with international drug control and administration agencies and organization and implement the applicable provisions of international conventions and agreement related to dangerous drugs to which the Philippines is a signatory;

     n.) Create and maintain an efficient special enforcement unit to conduct an investigation, file charges and transmit evidence to the proper court, wherein members of the said unit shall possess suitable and adequate firearms for their protection in connection with the performance of their duties; Provided, That no previous special permit for such possession shall be required;

     o.) Require all government and private hospitals, clinics, doctors, dentists and other practitioners to submit a report to it, in coordination with the Board, about all dangerous drugs and/or controlled precursors and essential chemicals which they have attended to for data and information purposes;

     p.)   Coordinate with the Board for the facilitation of the issuance of necessary guidelines, rules and regulations for the proper implementation of this Act;

     q.)  Initiate and undertake a national campaign for drug prevention and drug control programs, where it may enlist the assistance of any department, bureau, office, agency, or instrumentality of the government, including government-owned and/or  controlled corporations, in the anti-illegal drugs drive, which may include the use of their respective personnel, facilities, and resources for a more resolute detection and investigation of drug-related crimes and prosecution of the drug traffickers; and

      r.)   Submit an annual and periodic report to the Board as may be required form time to time, and perform such other functions as may be authorized or required under existing laws and as directed by the President himself/herself or as recommended by the congressional committees concerned.

 

Note:

     There are however certain power and duties of the PDEA enumerated under Section 84 of R.A. 9165 which seems to overlap with the functions of prosecutors such as (1) the preparation for prosecution or the causing of the filing of appropriate criminal cases for violation of the Law; and (2) filing of charges and transmittal of evidence to the proper court and which have to be clarified in the Implementing Rules and Regulation that may be issued by the DDB and the PDEA later.

 

 JURISDICTION OVER DRUG RELATED CASES

 

        The Supreme Court shall designate special court from among the existing Regional Trial Court in each judicial region to exclusively try and hear cases involving violations of this Act. The number of courts designated in each judicial region shall be based in their respective jurisdiction.

 

        The DOJ shall designate special prosecutor to exclusively handle cases involving violations of this Act.

 

 PRELIMINARY INVESTIGATION OF DANGEROUS DRUG CASES

               

The preliminary investigation of cases filed under this Act shall be terminated within the period of thirty (30) days from the date of their filing.  When the preliminary investigation is conducted by a public prosecutor and probable cause is established, the corresponding information shall be filed in court within twenty-four (24) hours from the termination of the investigation. If the preliminary investigation is conducted by a judge and a probable cause is found to exist, the corresponding information shall be filed by the proper prosecutor within forty-eight (48) hours from the date of receipt of the records of the case. (Sec. 90)

 

The Department of Justice shall designate special prosecutors to exclusively handle cases involving violations of the Dangerous Drug Act of 2002 (Sec. 90).    

Notwithstanding the provision of any law to the contrary, a positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance in the commission of a crime by an offender, and the application of the penalty provided for in the Revised Penal Code shall be applicable (Sec. 25).  

Confiscation and Forfeiture of the Proceeds or Instruments of the Unlawful Act, including the Properties or Proceeds Derived from the Illegal Trafficking of Dangerous Drugs and/or Precursors and Essential Chemicals.               

Every penalty imposed for the unlawful importation, sale, trading, administration, dispensation, delivery, distribution, transportation or manufacture of any dangerous drug and/or controlled precursor and essential chemical, the cultivation or culture of plants which are sources of dangerous drugs, and the possession  of any equipment, instrument, apparatus and other paraphernalia for dangerous drugs including other laboratory equipment, shall carry with it the confiscation and forfeiture, in favor of the government, of all the proceeds and properties derived from unlawful act, including, but not limited to, money and other assets obtained thereby, and the instruments or tools with which the particular unlawful act was committed, unless they are the property of a third person not liable for the unlawful act, but those which are not of lawful commerce shall be ordered destroyed without delay pursuant to the provisions of Section 21 of this Act.

               

After conviction in the Regional Trial Court in the appropriate criminal case filed, the Court shall immediately schedule a hearing for the confiscation and forfeiture of all the proceeds of the offense and all the assets and properties of the accused either owned or held by him or in the name of some other persons if the same shall be found to be manifestly out of proportion to his/her lawful income; Provided, however, That if the forfeited property is a vehicle, the same shall be auctioned off not later than five (5) days upon order of confiscation or forfeiture.

               

During the pendency of the case in the Regional Trial Court, no property, or income derived thereform, which may be confiscated and forfeited, shall be disposed, alienated or transferred and the same shall be in custodio legis and no bond shall be admitted for the release of the same.

               

The proceeds of any sale or disposition of any property confiscated under this section, forfeiture, custody and maintenance of the property pending disposition, as well as the expense for publication and court costs. The proceeds in excess of the above expenses shall accrue to the Board to be used in its campaign against illegal drugs.     

  

CUSTODY AND DISPOSITION OF CONFISCATED, SEIZED AND/OR SURRENDERED DANGEROUS DRUGS, ETC.

 

                The PDEA  shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment that was confiscated, seized and/or surrendered, for proper disposition in the following manner:

 

1.  The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such  items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ) and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof;

 

2.  Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative examination;

 

3.  A certification of the forensic laboratory examination results, which shall be under oath by the forensic laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the subject items/s: Provided, that when the volume of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally by the forensic laboratory: Provided, however, that a final certification on the same within the next twenty-four (24) hours;

 

4.  After the filing of the criminal case, the Court shall within seventy-two (72) hours, conduct an ocular inspection of the confiscated, seized and/or surrendered dangerous drugs, plant sources of dangerous drugs, and controlled precursor and essential chemicals,  including the instruments/paraphernalia and/or laboratory equipment, and through the PDEA shall within twenty-four (24) hours thereafter proceed with the destruction or burning of the same, in the presence of the accused or the person/s from which such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the DOJ, civil society group and any elected public official. The Board shall draw up the guidelines on the manner of proper disposition and destruction of such item/s which shall be borne by the offender; Provided, That those item/s of lawful commerce, as determined by the Board, shall be donated, used or recycled for legitimate purposes; Provided, further, That a representative sample, duly weighed and recorded, is retained;

 

5.  The Board shall then issue a sworn statement as to the fact of destruction or burning of the subject item/s together with the representative sample/s shall be kept to a minimum quantity as determined by the Board;

 

6.  The alleged offender or his/her representative or counsel shall be allowed to personally observe all of the above proceedings and his/her presence shall not constitute an admission of guilt. In case the said offender or accused refuses or fails to appoint a representative after due notice in writing to the accused or his/her counsel within seventy-two (72) hours before the actual or destruction of the evidence in question, the Secretary of Justice shall appoint a member of the public attorney’s office to represent the former;

 

7.  After the promulgation of judgment in the criminal case wherein the representative sample/s was presented as evidence in court, the trial prosecutor shall inform the Board of the final termination of the case and in turn, shall request the court for leave to turn over the said representative sample/s to the PDEA for proper disposition and destruction within twenty-foru (24) hours from receipt of the same; and

 

8.  Transitory Provision:

a.) Within twenty-four hours from the effectivity of this Act (R.A. 9165), dangerous drugs defined herein which are presently in possession of law enforcement agencies shall, with leave of court, be burned or destroyed, in the presence of representative of the Court, DOJ, Department of Health (DOH) and the accused and/or his/her counsel, and b.) Pending the organization of the PDEA, the custody, disposition, and burning of seized or surrendered dangerous drugs provided under this Section shall be implemented by the DOH (Sec. 21, Art. 2, R.A. 9165)

  

SUSPENSION OF SENTENCE OF FIRST-TIME MINOR OFFENDER

 

      An accused who is over fifteen (15) years of age at the time of the commission of the offense mentioned in Section 11 of R.A. 9165 but not more that eighteen (18) years of age at the time when the judgment should have been promulgated after having been found guilty of said offense, may be given the benefits of a suspended sentence, subject to the following conditions:

 

a.)  He/She has not been previously convicted of violating any provision of this Act, or of the Dangerous Drugs Act of 1972, as amended; or of the Revised Penal Code; or any special penal laws;

b.)  He/She has not been previously committed to a Center or to the care of a DOH-accredited physician; and

c.)   The Board favorably recommends that his/her sentence be suspended.

 

 PRIVILEGE OF SUSPENDED SENTENCE CAN BE AVAIL ONLY ONCE BY A FIRST-TIME MINOR OFFENDER

 

           The privilege of suspended sentence shall be availed of only once by accused drug dependent who is a first-time offender over fifteen (15) years of age at the time of the commission of the violation of Section 15 of this Act but not more than eighteen (18) years of age at the time when judgment should have been promulgated. (Sec. 68)

  

PROMULGATION OF  SENTENCE FOR FIRST-TIME OFFENDER

 

                If the accused first-time minor offender violates any of the conditions of his/her suspended sentence, the applicable rules and regulations of the Board exercising supervision and rehabilitative surveillance over him, including the rules and regulations of the Center should confinement be required, the court shall pronounce judgment of conviction and he/she shall serve sentence as any other convicted person. (Sec. 69)

  

PROBATION OR COMMUNITY SERVICE FOR A FIRST-TIME MINOR OFFENDER IN LIEU OF IMPRISONMENT

 

Upon promulgation of the sentence, the court may, in its discretion, place the accused under probation, even if the sentence provided under this Act is higher than that provided under existing law on probation, or impose community service in lieu of imprisonment. In case of probation, the supervision and rehabilitative surveillance shall be undertaken by the Board through the DOH in coordination with the Board of Pardons and Parole and the Probation Administration. Upon compliance with the conditions of the probation, the Board shall submit a written report to the court recommending termination of probation and a final discharge of the probationer, whereupon the court shall issue such an order.

 

The community service shall be complied with under conditions, time and place as may be determined by the court in its discretion and upon the recommendation of the Board and shall apply only to violators of Section 15 of this Act. The completion of the community service shall be under the supervision and rehabilitative surveillance of the Board during the period required by the court. Thereafter, the Board shall render a report on the manner of compliance of said community service. The court in its discretion may require extension of the community service or order a final discharge.

If the sentence promulgated by the court require imprisonment, the period spent in the Center by the accused shall be deducted from the sentence to be served. ( Sec. 70)

  

WHAT ARE THE LIABILITY AND RESPONSIBILITY OF A MEMBER  OF  LAW ENFORCEMENT AGENCIES AND OTHER GOVERNMENT OFFICIALS IN  TESTIFYING  AS PROSECUTION WITNESSES IN DANGEROUS DRUG CASES?

 

                Any member of law enforcement agencies or any other government official and employee who, after due notice, fails or refuse intentionally or negligently, to appear as a witness for the prosecution in any proceedings, involving violation of this Act, without any valid reason shall be punished with imprisonment of not less than twelve (12) years and one (1) day to twenty (20) years and a fine of not less than Five hundred thousand pesos (P500,000.00), in addition to the administrative liability he/she may be meted out by his/her immediate superior and/or appropriate body.

 

                The immediate superior of the member of the law enforcement agency or any other government employee mentioned in the preceding paragraph shall be penalized with imprisonment of not less than two (2) months and one (1) day but not more than six (6) years and a fine of not less than ten thousand (P10,000.00) but not more than Fifty thousand (P50,000.00) and in addition, perpetual absolute disqualification from public office if despite due notice to them and to the witness  concerned the former does not exert reasonable effort to present the latter to the court

 

                The member of the law enforcement agency or any other government employee mentioned in the proceeding paragraphs shall not be transferred or re-assigned to any other government office located in another territorial jurisdiction during the pendency of the case in court. However, the concerned member of the law enforcement agency or government employee may be transferred or re-assigned for compelling reason: Provided, that his/her immediate superior shall notify the court where the case is pending of the order to transfer or re-assign, within twenty-four (24) hours from its approval: Provided further, that his/her immediate superior shall be penalized with imprisonment of not less than two (2) months and  one (1)day but not more than six (6) years and a fine of not less than two (2) months and one (1) day but not more than six (6) years and a fine of not less than Ten thousand (P10,000.00) but not more than Fifty thousand pesos (P50,000.00) and in addition, perpetual absolute disqualification from public office, should he/she fails to notify the court of such order to transfer or re-assign.

       

DELAY AND  BUNGLING IN THE PROSECUTION OF DRUG CASES

                               

Any government officer employee tasked with the prosecution of drug-related cases under this Act, who through patent laxity, inexcusable neglect, unreasonable delay or deliberately causes the unsuccessful prosecution and/or dismissal of the said drug cases, shall suffer the penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years without prejudice to his/her prosecution under the pertinent provision of the Revised Penal Code.

  

RECORDS TO BE KEPT BY THE DEPARTMENT OF JUSTICE

 

The DOJ shall keep a confidential record of the proceedings on suspension of sentence and shall not be used for any purpose other than to determine whether or not a person accused under this Act is a first-time offender. (Sec. 71)

  

LIABILITY OF A PERSON WHO VIULATES  THE CONFIDENTIALITY OF RECORDS

 

The Penalty of imprisonment ranging from six (6) months and one (1) day to six (6) years and a fine ranging from One thousand pesos (P1,000.00) to Six thousand pesos (P6,000.00), shall be imposed upon any person who, having official custody of or access to the confidential records of any drug dependent under voluntary submission programs, or any one who, having gained possession of said records, whether lawfully or not, reveals their content to any person other than those charged with the prosecution of the offense under this Act and its implementation. The maximum penalty shall be imposed, in addition to the absolute perpetual disqualification from any public office, when the offender is a government official or employee. Should the records be used for unlawful purposes, such as blackmail of the drug defendant of the members of his/her family, the penalty imposed for the crime of violation of confidentiality shall be in addition to whatever crime he/she convicted of.  (Sec. 72)

  

LIABILITY OF A PARENTS, SPOUSE OR GUARDIAN WHO REFUSE TO COOPERATE

WITH THE BOARD OR ANY CONCERNED AGENCY

 

Any parent, spouse or guardian who, without valid reason parent, spouse or guardian who, without valid reason, refuses to cooperate with the Board or any concerned agency in the treatment and rehabilitation of a drug defendant who is a minor, or in any manner, prevents or delay the after-care, follow-up or other programs for the welfare of the accused drug defendant, whether under voluntary submission program or compulsory submission program, may be cited in contempt by the court.

 

COST-SHARING IN THE TREATMENT AND REHABILITATION OF A DRUG DEFENDENT

 

The parents, spouse, guardian or any relative within the fourth degree of consanguinity of any person who is confined under the voluntary submission program or compulsory submission program shall be charged a certain percentage of the cost of his/her treatment and rehabilitation, the guidelines of which shall be formulated by the DSWD taking into consideration the economic status of the family of the person confined. The guidelines therein formulated shall be implemented by a social worker of the local government unit. (Sec. 74)

  

LIMITED APPLICABILITY OF THE REVISED PENAL CODE

 

Notwithstanding any law, rule or regulation to the contrary, the provisions of the Revised Penal Code (Act. 3814) as amended, shall not apply to the provision of this Act, except in the case of minor offenders. Where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided therein shall be reclusion perpetua to death. (Sec. 98)

  

EXCEPTION TO NECESSITY OF A SEARCH WARRANT

 

                There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting officer to make a search upon the person arrested.  An officer making an arrest may take from the person arrested any money or property found upon his person which was used in the commission of the crime or was in fruit of the crime or which might furnish the prisoner with the means of committing violence or of escaping, which may be used as evidence in the trial of the case. (People v. Musa; GR 96177, 1/27/93)

 

LIKE ALIBI, FRAME UP IS EASY TO FABRICATE, BUT DIFFICULT TO PROVE

 

                Frame-up, like alibi, is a defense that  has been viewed by courts with disfavor for it can just as easily be connected and is a common and standard line of defense in most prosecution arising from violations of the Dangerous Drugs Act.  In order for that defense to prosper, the evidence adduced must be clear and convincing.    (People v. Girang;  GR 27949, 2/1/95)

  

BUY-BUST OPERATION

 

                Is a form of entrapment employed by peace officers as an effective way of apprehending a criminal in the act of the commission of the offense.  Entrapment has received judicial sanction as long as it is carried out with due regard to constitutional and legal safeguards.   (People v. Basilgo;  GR 107327, 8/5/94)

  

POSEUR-BUYER, GENERALLY NEED NOT TESTIFY

 

                The testimony of the poseur-buyer or of the confidential informant is no longer material considering that accused-appellant’s drug pushing was positively attested to.  Moreover, informants are generally not presumed in court because of the need to hide their identity and preserve their invaluable service to the police.   (People v. Girang;  GR 97949, 2/1/95)

  

 EFFECT OF LIMITATION UNDER SECTION 19, ART. VII OF THE CONSTITUTION  ON GRANT OF PARDON

 

The “conviction by final judgment” limitation under Section 19, Article VII of the present Constitution prohibits the grant of pardon, whether full or conditional, to an accused during the pendency of his appeal from his conviction by the trial court. Any application therefor, if one is made, should not be acted upon or the process toward its grant should not be begun unless the appeal is withdrawn. Accordingly, the agencies or instrumentalities of the Government concerned must require proof from the accused that he has not appealed from his conviction or that he has withdrawn his appeal Such proof may be in the form of a certification issued by the trial court or the appellate court, as the case may be The acceptance of the pardon shall not operate as an abandonment or waiver of the appeal, and the release of an accused by virtue of a pardon, commutation of sentence, or parole before the withdrawal of an appeal shall render those responsible therefor administratively liable Accordingly, those in custody of the accused must not solely rely on the pardon as a basis for the release of the accused from confinement.  (People v. Maquilan)

  

RULE AS TO WHO SHOULD BE CRIMINALLY CHARGED

 

The settled rule is that the determination of who should be criminally charged in court is essentially an executive function, not a judicial one.  As the officer authorized to direct and control the prosecution of all criminal actions, the prosecutor is tasked to ascertain whether there is sufficient ground to engender a well-founded belief that an offense has been committed and that the accused is probably guilty thereof.  (People v. Esparas;  GR 120034, July 10, 1998)

  

WHEN THERE IS A WAIVER OF WARRANTLESS ARREST

               

The appellants are now precluded from assailing the warrantless search and seizure when they voluntarily submitted to it as shown by their actuation during the search and seizure. The appellants never protested when SPO3 Jesus Faller, after identifying himself as a police officer, opened the tin can loaded in the appellants’ vehicle and found eight (8) bundles.  And when Faller opened one of the bundles, it smelled of marijuana.  The NBI later confirmed the eight (8) bundles to be positive for marijuana.  Again, the appellants did not raise any protest when they, together with their cargo of drugs and their vehicle, were brought to the police station for investigation and subsequent prosecution. We have ruled in a long line of cases  that:

 

“When one voluntarily submits to a search or consents to have it made on his person or premises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th ed., vol. I, page 631). The right to be secure from unreasonable search may, like every right, be waived and such waiver may be made either expressly or impliedly.”

 

The appellants effectively waived their constitutional right against the search and seizure in question by their voluntary submission to the jurisdiction of the trial court, when they entered a plea of not guilty upon arraignment and by participating in the trial.  (People v. Correa;  GR 119246,  Jan. 30, ’98)

  

WHEN USE OF MOTOR VEHICLE IN DRUG CASES OR ANY OTHER CASE IS NOT AGGRAVATING

 

Simply stated, the motor vehicle which was used to transport prohibited drugs was not purposely sought to facilitate the commission of the crime since such act of transporting constitutes the crime itself, punishable under Section 4, Article II of Republic Act No. 6425, as amended. That a motor vehicle was used in committing the crime is merely incidental to the act of transporting prohibited drugs. The use of a motor vehicle is inherent in the crime of transporting as it must of necessity accompany the commission thereof; hence, such use is not an aggravating circumstance.    (People v. Correa)

  

CASES WHEN WARRANTLESS SEARCH IS ALLOWED

 

 1.   Warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court  and by prevailing jurisprudence;

 

2.    Seizure of evidence in “plain view,” the elements of which are:

 

(a)   a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties;

(b)   the evidence was inadvertently discovered by the police who had the right to be where they are;

(c)  the evidence must be immediately apparent, and

(d)  “plain view” justified mere seizure of evidence without further search;

 

3.    Search of a moving vehicle. Highly regulated by the government, the vehicle’s inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;

 

4.   Consented warrantless search;

5.   Customs search; 

6.   Stop and Frisk;  and

7.   Exigent and Emergency Circumstances.  (People v. Menguin;  GR 120915, Apr. 13, ’98)

  

CASES WHEN SEARCH WITHOUT A WARRANT WAS VALID

 

In People v. Tangliben,  acting on information supplied by informers, police officers conducted a surveillance at the Victory Liner Terminal compound in San Fernando, Pampanga against persons who may commit misdemeanors and also on those who may be engaging in the traffic of dangerous drugs. At 9:30 in the evening, the policemen noticed a person carrying a red travelling bag who was acting suspiciously. They confronted him and requested him to open his bag but he refused. He acceded later on when the policemen identified themselves. Inside the bag were marijuana leaves wrapped in a plastic wrapper. The police officers only knew of the activities of Tangliben on the night of his arrest.

 

In instant case, the apprehending officers already had prior knowledge from their informant regarding Aruta’s alleged activities. In Tangliben policemen were confronted with an on-the-spot tip. Moreover, the policemen knew that the Victory Liner compound is being used by drug traffickers as their “business address”. More significantly, Tangliben was acting suspiciously. His actuations and surrounding circumstances led the policemen to reasonably suspect that Tangliben is committing a crime. In instant case, there is no single indication that Aruta was acting suspiciously.

 

In People v. Malmstedt,  the Narcom agents received reports that vehicles coming from Sagada were transporting marijuana. They likewise received information that a Caucasian coming from Sagada had prohibited drugs on his person. There was no reasonable time to obtain a search warrant, especially since the identity of the suspect could not be readily ascertained. His actuations also aroused the suspicion of the officers conducting the operation. The Court held that in light of such circumstances, to deprive the agents of the ability and facility to act promptly, including a search without a warrant, would be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society.

 

Note, however, the glaring differences of Malmstedt to the instant case. In present case, the police officers had reasonable time within which to secure a search warrant. Second, Aruta’s identity was priorly ascertained. Third, Aruta was not acting suspiciously. Fourth, Malmstedt was searched aboard a moving vehicle, a legally accepted exception to the warrant requirement. Aruta, on the other hand, was searched while about to cross a street.

 

In People v. Bagista,  the NARCOM officers had probable cause to stop and search all vehicles coming from the north to Acop, Tublay, Benguet in view of the confidential information they received from their regular informant that a woman having the same appearance as that of accused-appellant would be bringing marijuana from up north. They likewise had probable cause to search accused-appellant’s belongings since she fitted the description given by the NARCOM informant. Since there was a valid warrantless search by the NARCOM agents, any evidence obtained in the course of said search is admissible against accused-appellant. Again, this case differs from Aruta as this involves a search of a moving vehicle plus the fact that the police officers erected a checkpoint. Both are exceptions to the requirements of a search warrant.

 

In Manalili v. Court of Appeals and People,  the policemen conducted a surveillance in an area of the Kalookan Cemetery based on information that drug addicts were roaming therein. Upon reaching the place, they chanced upon a man in front of the cemetery who appeared to be “high” on drugs. He was observed to have reddish eyes and to be walking in a swaying manner. Moreover, he appeared to be trying to avoid the policemen. When approached and asked what he was holding in his hands, he tried to resist. When he showed his wallet, it contained marijuana. The Court held that the policemen had sufficient reason to accost accused-appellant to determine if he was actually “high” on drugs due to his suspicious actuations, coupled with the fact that based on information, this area was a haven for drug addicts.

                                                                                                               

This case is similar to People v. Aminnudin where the police received information two days before the arrival of Aminnudin that the latter would be arriving from Iloilo on board the M/V Wilcon 9. His name was known, the vehicle was identified and the date of arrival was certain. From the information they had received, the police could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Instead of securing a warrant first, they proceeded to apprehend Aminnudin. When the case was brought before this Court, the arrest was held to be illegal; hence any item seized from Aminnudin could not be used against him.

 

Another recent case is People v. Encinada where the police likewise received confidential information the day before at 4:00 in the afternoon from their informant that Encinada would be bringing in marijuana from Cebu City on board M/V Sweet Pearl at 7:00 in the morning of the following day. This intelligence information regarding the culprit’s identity, the particular crime he allegedly committed and his exact whereabouts could have been a basis of probable cause for the lawmen to secure a warrant. This Court held that in accordance with Administrative Circular No. 13 and Circular No. 19, series of 1987, the lawmen could have applied for a warrant even after court hours. The failure or neglect to secure one cannot serve as an excuse for violating Encinada’s constitutional right.

 

People v. Solayao,  applied the stop and frisk principle which has been adopted in Posadas v. Court of Appeals.  In said case, Solayao attempted to flee when he and his companions were accosted by government agents. In the instant case, there was no observable manifestation that could have aroused the suspicion of the NARCOM agents as to cause them to “stop and frisk” accused-appellant. To reiterate, accused-appellant was merely crossing the street when apprehended. Unlike in the abovementioned cases, accused-appellant never attempted to flee from the NARCOM agents when the latter identified themselves as such. Clearly, this is another indication of the paucity of probable cause that would sufficiently provoke a suspicion that accused-appellant was committing a crime.  

 

This Court cannot agree with the Solicitor General’s contention for the Malasugui case is inapplicable to the instant case. In said case, there was probable cause for the warrantless arrest thereby making the warrantless search effected immediately thereafter equally lawful.  On the contrary, the most essential element of probable cause, as expounded above in detail, is wanting in the instant case making the warrantless arrest unjustified and illegal. Accordingly, the search which accompanied the warrantless arrest was likewise unjustified and illegal. Thus, all the articles seized from the accused-appellant could not be used as evidence against her.   (People v. Menguin)                                               

 

WHEN SEARCH IS NOT VALID

 

Accused-appellant Aruta cannot be said to be committing a crime. Neither was she about to commit one nor had she just committed a crime. Accused-appellant was merely crossing the street and was not acting in any manner that would engender a reasonable ground for the NARCOM agents to suspect and conclude that she was committing a crime. It was only when the informant pointed to accused-appellant and identified her to the agents as the carrier of the marijuana that she was singled out as the suspect. The NARCOM agents would not have apprehended accused-appellant were it not for the furtive finger of the informant because, as clearly illustrated by the evidence on record, there was no reason whatsoever for them to suspect that accused-appellant was committing a crime, except for the pointing finger of the informant. This the Court could neither sanction nor tolerate as it is a clear violation of the constitutional guarantee against unreasonable search and seizure. Neither was there any semblance of any compliance with the rigid requirements of probable cause and warrantless arrests.

 

Consequently, there was no legal basis for the NARCOM agents to effect a warrantless search of accused-appellant’s bag, there being no probable cause and the accused-appellant not having been lawfully arrested. Stated otherwise, the arrest being incipiently illegal, it logically follows that the subsequent search was similarly illegal, it being not incidental to a lawful arrest. The constitutional guarantee against unreasonable search and seizure must perforce operate in favor of accused-appellant. As such, the articles seized could not be used as evidence against accused-appellant for these are “fruits of a poisoned tree” and, therefore, must be rejected, pursuant to Article III, Sec. 3(2) of the Constitution.          (People v. Menguin)

  

WHEN VOLUNTARY SUBMISSION TO SEARCH IS INAPPLICABLE

 

Aside from the inapplicability of the abovecited case, the act of herein accused-appellant in handing over her bag to the NARCOM agents could not be construed as voluntary submission or an implied acquiescence to the unreasonable search. The instant case is similar to People v. Encinada.            (People v. Menguin)

 

WHEN SEARCH IS NOT ALLOWED AFTER AN ARREST IS MADE

 

In the case of People v. Lua,  this Court held:

 

“As regards the brick of marijuana found inside the appellant’s house, the trial court correctly ignored it apparently in view of its inadmissibility. While initially the arrest as well as the body search was lawful, the warrantless search made inside the appellant’s house became unlawful since the police operatives were not armed with a search warrant. Such search cannot fall under “search made incidental to a lawful arrest,” the same being limited to body search and to that point within reach or control of the person arrested, or that which may furnish him with the means of committing violence or of escaping. In the case at bar, appellant was admittedly outside his house when he was arrested. Hence, it can hardly be said that the inner portion of his house was within his reach or control.  (Espano v. C.A.;  GR 120431, April 1, ’98)

 

MEANING OF “TO TRANSPORT” IN DRUG CASES

 

In People vs. Lo Ho Wing,  the Court defined the term “transport”, as used under the Dangerous Drugs Act to mean “to carry or convey from one place to another” , the operative words being “to carry or to convey”. The fact that there is actual conveyance suffices to support a finding that the act of transporting was committed. It is immaterial whether or not the place of destination was reached.  (People v. Latura) 

                               

WHEN POLICE OFFICERS INTENTIONALLY PEEPED THRU A WINDOW THEN WENT INSIDE AND ARRESTED THOSE INSIDE WHO ARE PACKING MARIJUANA.  THE SAME IS ILLEGAL

 

The police officers intentionally peeped first through the window before they saw and ascertained the activities of accused-appellants inside the room.  In like manner, the search cannot be categorized as a search of a moving vehicle, a consented warrantless search, a customs search, or a stop and frisk; it cannot even fall under exigent and emergency circumstances, for the evidence at hand is bereft of any such showing.

 

On the contrary, it indicates that the apprehending officers should have conducted first a surveillance considering that the identities and address of the suspected culprits were already ascertained.  After conducting the surveillance and determining the existence of probable cause for arresting accused-appellants, they should have secured a search warrant prior to effecting a valid arrest and seizure.  The arrest being illegal ab initio, the accompanying search was likewise illegal.  Every evidence thus obtained during the illegal search cannot be used against accused-appellants; hence, their acquittal must follow in faithful obeisance to the fundamental law.   (PP  -vs-  ZENAIDA BOLASA Y NAKOBOAN, ET AL., G.R. No.  125754,  Dec. 22, 1999)

  

SEARCH AND SEIZURE WITHOUT THE REQUISITE JUDICIAL WARRANT IS ILLEGAL AND VOID AB INITIO   

 

          As a general rule, the procurement of a search warrant is required before law enforcer may validly search or seize the person, house, papers or effects of any individual. In People v. Valdez, the court ruled that search and seizure conducted without the requisite judicial warrant is illegal and void ab initio.

  

 “Lawmen cannot be allowed to violate the very law they are expected to enforce.” The Court is not unmindful of the difficulties of law enforcement agencies in suppressing the illegal traffic of dangerous drugs. However, quick solutions of crimes and apprehension of malefactors do not justify a callous disregard of the Bill of Rights”. We need not underscore that the protection against illegal search and seizures is constitutionally mandated and only under specific instances are seizures allowed without warrants.

 

In this case, the prosecution’s evidence clearly established that the police conducted a search of accused’s backyard garden without warrant; they had sufficient time to obtain a search warrant; they failed to secure one. There was no showing of urgency or necessity for the warrantless search, or the immediate seizure of the marijuana plants. (People vs. Alberto Pasudag)

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